Reviewing Larry DiMatteo, Principles of Contract Law and Theory, Part XIV

This is the Fourteenth post in my series on  Larry Di Matteo‘s Principles of Contract Law and Theory (Principles).  The aim is to call some attention to this book while using it to stimulate my thinking as I once again consider how to teach contracts law to first-year students.  Principles is a scholarly textbook addressing advanced topics at a very high level of sophistication. 

The fourteenth chapter of the Principles is about critical theory. Appropriately, the chapter begins with an extended discussion of legal realism, which provides the foundation for the various forms of critical theoretical approaches to private law that developed starting in the 1970s. (322-330) Legal realists undertook the fundamental critique of classical contracts theory, which sought to establish contracts law as a set of neutral rules of general applicability binding on willing participants in a commercial bond. Realists countered that any set of facts could produce multiple legal outcomes, and in fact, judges ruled based on their personal response to the facts rather than giving effect the one applicable legal rule. (324) Realism also anticipated critical legal theory in exposing the degrees to which contracts law reinforced existing social hierarchies and in proposing state regulation of private contracting to achieve aims of distributive justice or socio-economic fairness. (325) And yet, Professor DiMatteo notes, realism was tamed along the way. Karl Llewllyn, radical realist, recognized that the common law was not so much a system of uniform rules as a set of decisions made by judges driven to legal conclusions based on the facts before them. However, that same Karl Llewellyn was the pick of the legal establishment to lead the drafting process for a uniform commercial code that somehow has managed to guide commercial transactions, with amendments, for nearly three-quarters of a century. (328-29)

The critical legal theory (CLT) movement calls such codification efforts into question, as all legal reasoning tends towards self-contradiction and indeterminacy. (330-31) Classical contract theory had faith that freedom of contract would generate fair rules. Legal realism saw that formal rules may not always be applied fairly but thought that judges could, with careful guidance, apply rules on a more equitable basis in context. CLT takes power as its point of departure and recognizes that we do not generally enter into contractual agreements on a fair and equitable basis, and legal rules tend to reify existing socio-economic structures. (331-33) The critique is powerful. However, Professor DiMatteo concludes, CLT could construct no new edifice on the ruins of existing legal theory, and so it petered out by the 1980s, while laying the foundations for critical race theory (CRT) and feminist jurisprudence. (333-34)

As Professor DiMatteo’s discussion makes clear, CLT may have offered too ambitious a program. If all contracts are exercises of power, how can you critique any particular contract. CRT has the advantage of focusing on how bias, prejudice, and power imbalances lead to inequalities that map onto racial differences. This is one area where empirical legal studies, discussed in a prior chapter, and the deployment of testers, have been useful in proving the impact of race and gender on common transactions, but Professor DiMatteo also highlights how CRT uses narrative to illustrate the ways in which the classical understanding of contract law as neutral can conceal ways in which the law discriminates against racial minorities. (334-36)

The discussion of LatCrit is very brief, and I’m not sure I understand the point. Much of the section is taken up with a discussion of a case that I teach, White City Shopping Ctr., L.P. v. P.R Rests., LLC. (336-37) That’s one of many cases adjudicating whether a burrito is a sandwich. In this case, the court held that a was not a sandwich. Professor DiMatteo treats the decision as evidencing the Anglo judge’s lack of appreciation of the role of burritos as Mexican sandwiches. However, in holding that burritos are not sandwiches, the judge allowed the burrito restaurant to win its case. There are many explanations for the outcome; anti-Mexican bias seems pretty low on the list of likely hermeneutic keys.

Professor DiMatteo’s discussion of feminist jurisprudence reminds us of the great movement in contracts law since the coverture regime of the nineteenth century. (337-38) He then contrasts Hamer v. Sidway and Kirksey v. Kirksey as illustrating how gender can effect legal outcomes. (338) Again, I’m not sure gender is the key to unlocking why those two cases, separated by more than four decades and decided in different states, came out differently. There follows a discussion of Deborah Threedy’s Dancing around Gender (338-40), which we have discussed here.

There follows a very brief discussion of Grant Gilmore’s The Death of Contracts and Stewart Macauley’s work indicating that formal contracts are rarely important to the people who engage in commercial transactions. (340-41) As I indicated before, I regard Professor Macaulay’s work, like that of Ian Macneil, as an important contribution to the sociology of law. I’m not sure it has much impact on doctrine. I think Gilmore’s book may be a historical curiosity at this point. The convergence of contracts and tort that he predicted has not come to pass, perhaps because his book put us on notice, and he forestalled it. More likely, he mistook a movement on the periphery of contracts doctrine for a threat to its core.

The chapter concludes with an interesting account of the law and literature movement (LLM). (341-44) Professor DiMatteo does an excellent job bringing coherence to a set of writings that I had always thought defies categorization. He divides LLM into the study of law in literature, which he illustrates with Dickens’ Bleak House and the law reform movement that it spawned, and law as literature, which involves the deployment of the techniques of literary analysis to legal texts. One insight from LLM that informs both CRT and feminist jurisprudence is the recognition that law involves the creation and manipulation of narratives. Fittingly, this leads to the chapter’s conclusion, which highlights the marriage of literary style with law in the opinions of Judge Cardozo and his epigones who make their view of the law compelling because they express it with such artistry. (343-44)

The first post in this series, providing an introduction, covering history, law and equity, justifications for contract law, rules principles, and standards, specialized rules, and boundaries of contract, can be found here
Part II, a foray into comparative contracts law, is here.
Part III, a discussion of freedom of contract and five tensions through which contract law navigates, is here.
Part IV, on formalism, is here.
Part V, about substantive elements of contract, is here.
Part VI, remedies, excuse, and privity, is here.
Part VII, about defenses, is here.
Part VIII, on interpretation, is here.
Part IX, about standard terms and form contracting, is here.
Part X, on legal history and theories of legal development, is here.
Part XI, about classical contract theory, is here.
Part XII, about reliance and fault, is here.
Part XIII, about legal theory, is here.