Chapter 7. Britton v. Turner: A Signpost on the Crooked Road to “Freedom” in the Employment Contract 91 results (showing 5 best matches)
- This brief history should lead us somewhat to reconsider the usual account of the “freedom of contract” phase in the status-to-contractto-status story. “Freedom of contract” in practice was not a laissezfaire regime in which the parties were left at large to bargain out the content of their contracts. It was rather a regime in which the legal system supplied implied terms largely favoring employers and in other ways threw its weight behind employers’ power to impose contract terms, backed up by the sanctions of dismissal and even (in some periods and situations) criminal prosecutions and injunctions.
- The usual account of the modern law of contract relations is that it travels a path from status to contract and then back again to status—the story of the rise and fall of freedom of contract. By the late nineteenth century “free contract” relations came to be strongly contrasted to “status” relations. Status relations are described in what William Blackstone in his famous Status relations had a content (mandatory terms) prescribed by positive law or implied from custom, and usually unequal or asymmetric rights and duties. Marriage was the prime example of a status: The law’s terms could not be varied by the parties; rights of exit from the contract (even by mutual consent) were heavily restricted by divorce law; in the contract relation the wife was subordinated to the husband’s orders, control of their joint property, choice of dwelling place, and even citizenship; the wife owed the husband domestic and sexual services, but the husband was also obliged to support the wife.
- But the regime of free contract—the story continues—no sooner triumphed than it began to be undermined. “Social” jurists, “Progressive” reformers, and interest groups who thought “free” contracts embodied the wills only of parties with better bargaining advantages or failed to protect third parties and important social interests such as the leisure, health, safety, and family responsibilities of the workforce sought legislation to mandate or prohibit specific contract terms. In short order the legal system broke up the abstraction of classical contract into specialized legislative and administrative regulation of contracts governing railroad carriage of goods and passengers; Contract, to twentieth-century observers and commentators, seemed to be returning to a miscellaneous regime of status-specific laws.
- Chancellor Kent Professor of Law and Legal History, Yale University. This is a considerably revised and expanded version of a paper first given at the Association of American Law Schools annual meeting in 2003 and subsequently published in 26 Hawaii L. Rev. 423 (2004). I see this essay primarily as a window to showcase for teachers and students of contract law some of the extraordinary recent work of legal historians on contract law. I have taken inspiration over the years from the brilliant pioneer writers of background stories to famous cases: Stewart Macaulay, Richard Danzig, and Brian Simpson. I am grateful to Elizabeth Bouvier, chief archivist of the Supreme Judicial Court of Massachusetts, and Barbara Hogan, clerk of the Cheshire County (N.H.) Superior Court, for help in searching for court records. Special thanks to Eric Tam, who provided the research on wage-payment statutes.
- The rule was a default rule and could be contracted around. Winifred Rothenberg collected a sample of 692 farm labor contracts from thirty-six account books of Massachusetts farmers, 1750–1865. She found that 620 of the contracts specified length and that (varying by decade) 60 to 75 percent of the contracts were for six months or less. Whether long or short, the contracts stipulated monthly rates (mostly flat rates, but sometimes variable by season). She does not tell us whether the workers were actually paid every month (in addition to their in-kind wages of room and board), but the strong implication is that they were.
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Contracts Stories 5 results
- Contracts Stories
- Chapter 11: A Fish Story: Alaska Packers’ Association v. Domenico
- Chapter 2: Contracts for Cotton to Arrive: The Case of the Two Ships Peerless
- Chapter 6: Reconstructing Contracts: Hamer v. Sidway
- Chapter 7: Britton v. Turner: A Signpost on the Crooked Road to “Freedom” in the Employment Contract
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Chapter 6. Reconstructing Contracts: Hamer v. Sidway 33 results (showing 5 best matches)
- Every case tells a different story. In first-year contracts, the story of is among the most familiar. An uncle promises his fifteen-year-old nephew that he will give him $5,000 on his twenty-first birthday if he promises in return not to smoke, drink, or play cards or billiards for money until then. The legal question the case presents is straightforward: If the nephew keeps his end of the bargain, is the uncle legally obliged to pay? Can the nephew, in other words, sue the uncle if he breaks his promise? This question has been a central preoccupation of contracts professors for more than a hundred years. It has become the standard vehicle used to distinguish those promises that are legally enforceable from those that are not.
- forever discharged the said William E. Story, his heirs, executors, and administrators, … from all … causes of action, … suits, debts, … sums of money … which against the said William E. Story [Willie] ever had, now ha[s], or which [Willie] … hereafter can, shall or may have, for or upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these presents.
- The larger story of is not about a single promise intended to curtail teenage smoking and drinking, but rather about a number of complicated relationships inside an extended family. In this story, what role should the law play? How, for example, would things have played themselves out if, instead of bargained-for consideration,
- Courts struggle to reconcile the law of trusts and estates, contract doctrine, and the dictates of equity. The larger story of
- One way to look at the story of is from the point of view of Franklin Sidway. William Story dies twelve years after Willie turned twenty-one without, by Willie’s account, making good on a promise made many years before. Franklin Sidway is William’s executor,
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Chapter 3. Sources of National Authority 36 results (showing 5 best matches)
- The story of this misunderstanding of the law of precontractual liability begins with , the court held that even if two parties had never reached agreement on essential factors necessary to establish a contract, a party who relied on representations made during the negotiations could recover sunk costs based on the doctrine of promissory estoppel as expressed in section 90 of the
- find liability where so many other courts could not? And what exactly is the law of contracts in the muddy area of precontractual liability? In this essay, I begin with a close look at the case. The transcript of the trial reveals a story far different from the conventional understanding of the dispute between Joseph Hoffman
- But, as others have noted, there is a highly salient aspect to the Hoffman story—the evident disparity in income, education, and business acumen between Joe Hoffman and the Red Owl corporate officers. Is The story of the hometown “little guy” pitted against a large, impersonal, and outof-state corporation certainly seems the best explanation for the jury verdict, but more, surely, is required from the Wisconsin Supreme Court. And, the truth is that the facts as revealed at trial simply do not support the fairness claim. Nowhere in the record, for example, is there any testimony that Lukowitz said what was attributed to him by the Wisconsin court nor were Hoffman’s proposed equity contributions ever substantially increased as the court implied.
- Commentators have been virtually unanimous in accepting the story, as told by the Wisconsin Supreme Court, that Red Owl’s escalating financial demands were the proximate cause of the breakdown in negotiations between the parties. Marvin Chirelstein is a notable exception to this uncritical view of the case in suggesting that there is a plausible alternative story to tell about
- Indeed, we can’t answer the legal questions until we first understand better the commercial behavior that has generated this litigation. The sheer volume of litigation over these preliminary agreements exposes a deep puzzle. Parties often write fully binding contracts before they invest in reliance. And when they need to invest early prior to final contract, they can (and do) contract directly on reliance. Yet these parties invest prior to final contract and they fail to contract specifically on reliance. Why do parties put themselves in this situation? And, finally, when negotiations break down and one party exits, when would the other party have a reasonable expectation of compensation absent an explicit promise to reimburse reliance expenditures? Schwartz and Scott provide one answer to this question,
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Introduction 9 results (showing 5 best matches)
- . and left only a token recovery for plaintiffs who had a simple and meritorious breach-of-contract action. Barak Richman looks at It is a story of political infighting, one that led a county to build a bridge to nowhere. His story is of a judge who seeks to provide legal stability for local governments who enter into commercial dealings in such environments. In the last essay, Debora Threedy examines the cultural and social forces behind and sailors is a story in which once again cultures clash and nothing is quite as it seems.
- The next two chapters explore the emergence of doctrine in more recent times. In his essay, Robert Scott provides a detailed examination of the story behind to explore the doctrine of offer and acceptance and larger questions of the relationship between contract and property in a world of mass markets. He shows how two able judges can approach the same set of facts from radically different
- The narrative in a judicial opinion occupies a privileged place, but we should not forget that there are other possible narratives, sometimes many others. These essays provide a window into the wonderfully diverse world of modern legal thought and show that great stories are worth retelling.
- to showcase the wealth of recent work in legal and social history. At the same time, Professor Gordon shows how the doctrine in this case is a piece of a broad tapestry, one in which definitions and ideologies of ―freedom‖ in contracting, particularly as applied to the contract of employment, is still being made.
- , in short, is a story of judicial innovation accompanying technological innovation.
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Chapter 4. ProCD v. Zeidenberg: Do Doctrine and Function Mix? 72 results (showing 5 best matches)
- Now the atmospherics of the case change. In a subsequent interview, Matt Zeidenberg projected himself a folk hero in this “David versus Goliath” story.story, his conduct poses a mortal threat to all potential low-intensity users of the product, by forcing ProCD to abandon that segment of the market, assuming that it stays in the market at all. At this point, the contract analysis has a different form of urgency, which is to make sure that efficient contractual provisions are not routinely left on the cutting room floor.
- The question then arises what should be done. In many ordinary sales contracts, it is tolerable to keep the traditional rule that the contract is formed when the product is purchased at the store. It is not as though the green grocer is determined to contract out of a warranty of merchantable quality. But with software, which is an information good, the contracts for sale are more complicated because of how easy it is to share that information with others in ways that defeat any socially valuable scheme of price discrimination.
- The Easterbrook analysis of delayed acceptance thus solves the central problem with shrinkwrap contracts, by allowing for the incorporation of the critical terms that are revealed only after the package is opened or the product is installed. As such, it represents an enormous advance over Judge Crabb’s view, which, by placing the time of contracting earlier, knocks out the entire set of terms that is so essential to the business bargain. But function alone does not carry the day. Doctrinal issues always rear their ugly heads. Postponing contract until the later time creates fresh problems, ones that Easterbrook does not discuss, because now there is no agreement between the parties to cover any events that occur between the time of sale and the moment the package is opened or installed. Thus suppose that the software package were lost or damaged before it was opened. If the contract had been complete at the time of sale, as Judge Crabb had found, then the risk of loss passes to the...
- , [and other cases] support the proposition that a copyright infringement claim is not equivalent to a contract claim merely because the contract claim requires a plaintiff to show the additional element of breach, I disagree respectfully with their conclusions. Contracts that seek to protect reproduction and distribution rights step into territory already covered by copyright law. It would alter the “delicate balance” of copyright law to allow parties to avoid copyright law by contracting around it.
- More important, for our purposes, this complete flip-over represented a vast difference in world view, which is reflected in how the two decisions were organized. Judge Crabb discussed the copyright preemption question first and the contract question second. Let’s turn first to the contract formation issue and then to the copyright issue.
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Chapter 2. Federal Jurisdiction 53 results (showing 5 best matches)
- What remains open to question is whether the decision in the case, laconically expressed though it is, indicates what view the judges would have taken in a trial if it emerged that one party meant one ship and the other meant the other, and there was, as it were, no way of identifying the ship to which “the contract” referred. Mellish and Cohen certainly argued that if one party meant one ship and the other the other, as might be assumed as a matter of common sense to be the story behind the case, there would be no contract at all; they used the expression ...in a contract. Although their argument was stopped at this point, it does not necessarily follow that the three judges agreed with it; the judges might not have seen any need to go into the matter, or they might have accepted the idea with some qualifications. In the absence of any judicial explanation of the decision it is to some degree speculative why the case was decided in the way it was. Given the doctrinal context, the...
- The Death of Contract?
- From around 1800 there took place a very considerable elaboration of the Anglo-American law of contract. Lawyers came to believe that contractual disputes should be analyzed and resolved by reference to general and highly abstract principles of law. It was this process that formed the starting point for Gilmore’s
- Nineteenth-century legal thinkers not only elaborated the law of contract; they also believed that it possessed a preeminent social significance. It was through the formation of contracts that free and independent individuals could arrange their mutual affairs to suit their own preferences and choices. Contract could become the legal instrument of progress and social improvement. So when Christopher Columbus Langdell, who had become dean of the Harvard Law School in 1870, decided to embark upon a new experiment in legal education, he selected contract law as his subject.
- The contracts involved were called “contracts to arrive” or “arrival” contracts. They do not appear to have been common until the 1850s. There are references in the as early as 1851, and later in the decade they are more common. By the 1860s reference to them became standard form in market reports. Such contracts were attractive to speculators since they avoided warehousing costs if the cotton was promptly sold on arrival or if the rights of the purchaser were assigned. In the absence of prepayment they also avoided locking up capital.
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Chapter 9. The Unearthed Facts of Peevyhouse v. Garland Coal & Mining Co. 60 results (showing 5 best matches)
- Because the parties stipulated to breach, Judge Wallace directed that the jury find for plaintiffs, along with instructions allowing latitude to fix damages. In determining what sum would reasonably compensate plaintiffs, the jury could consider the costs of doing each item of remedial work, “together with all of the evidence” offered by either party. After brief deliberations, the jury returned a verdict for $5,000. The jury, it appears, was not fooled by either side’s exaggerated damage evidence, nor by the truncated evidence that told a badly incomplete story. It saw the pictures of plaintiffs’ damaged land and the actual contract with typewritten remedial terms, and it heard testimony from Willie, who presented well: soft spoken, honest, and sincere. While the jury was not inclined to inflict punishment on the defendant, part of an important local industry, it aimed to compensate plaintiffs fairly for their defeated contract expectations. In retrospect, its $5,000 verdict was...
- teaches the important lesson, “if you don’t get the facts right, you can’t get the law right.” Clients come to lawyers asking for help with thorny problems; they don’t know what facts are legally significant, and they may tell rambling stories that omit or gloss over crucial facts. It is the lawyer’s job to elicit a complete and accurate recount of what happened, to evaluate and accurately assess the significance of those facts to the various possible legal principles that could apply, and then seek an appropriate resolution in light of the relevant facts and law. If litigation ensues, the lawyer’s job is to “re-present” the client’s story in the most favorable light, making sure that critical evidence gets in the record by anticipating and responding effectively to any objections that could exclude the evidence. An effective advocate presents a compelling, plausible story, persuading the fact-finder to rule in the client’s favor, ...Court decision is a story that...
- Tom Capshaw, the junior associate who wrote Garland’s brief on appeal, believed the remedial work would increase the land’s value by only $300 and considered possible expenditure of $30,000 as “appalling social waste.” Because he was not familiar with the coal industry’s customary practices and contract terms, he did not appreciate that this contract was unique but did think it strange the contract set no dollar limits on the remedial work.
- Defendant admitted that plaintiffs would not agree to lease their land unless the remedial provisions were included, could reasonably approximate the costs of performance before entering the contract, and presumably found the contract was advantageous, or it would not have agreed to it. No record evidence indicates defendant could not perform, or that there was any change in conditions “which could not have reasonably been anticipated.” Garland’s breach was willful and not in good faith; it received full performance from Peevyhouses and offered no excuse for its failure to perform. Plaintiffs were entitled to specific performance, or the cost of performance. “Any other measure of damages would be holding for naught the express provisions of the contract; would be taking from the plaintiffs the benefits of the contract and placing those benefits in defendant which has failed to perform its obligations; … and would be completely rescinding the solemn obligation of the contract … by...
- A more complete trial record and effective appellate argument should have precluded a finding that Garland’s breach was only partial, warranting the clemency of substantial performance doctrine. Substantial performance doctrine primarily applies to service contracts, where the service provider essentially completed performance, with only insignificant defects or incomplete items remaining. The doctrine allows recovery of the unpaid contract price, less any damages owed the payor from defective or incomplete performance. Equitable principles allow the contractor’s recovery notwithstanding its nonmaterial breach. Assuming substantial performance fulfills the payor’s principal purpose for the contract, anti-forfeiture doctrine protects the contractor’s expectation interest. Conversely, if the remaining work is significant, the defects serious, or the breach willful, courts may determine the breach was material. Material breach doctrine would allow the payor, as the injured party, to...
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Chapter 8. The Gendered Origins of the Lumley Doctrine: Binding Men’s Consciences and Women’s Fidelity 67 results (showing 5 best matches)
- The story that emerges is one of reversal of a legal rule due in large part to the increasing presence of women in the acting profession. When of women in particular. In the later cases, courts were harsher upon women defendants who attempted to leave their employment than they were in the few parallel cases involving men. And in the later cases, courts were harsher upon women than they had been earlier in the century. By the end of the century, the courts’ subjugation of actresses to the control of theater managers surpassed even the language of their contracts and became an incident of a status classification constructed largely by the courts, sometimes in contradiction to the express agreement of the parties.
- Equity courts of this period stated that they would not enforce part of a contract if they could not enforce all of the contract. They did not pick and choose between a contract’s clauses based on their enforceability. Once an employee repudiated a contract, the theater or other hiring firm was left to its remedies of damages at law. Characteristic of the opinions during this period is the reasoning that specific performance cannot issue absent a partnership; therefore, the court will not attempt to produce indirectly a result that it cannot achieve directly.
- of no reason why contracts for theatrical performances should stand upon a different footing than other contracts involving the exercise of intellectual faculties; why actors and actresses should, by the law of contracts, be treated as a specially privileged class, or why theatrical managers, who have to rely upon their contracts with performers of attractive talents … should, with the large capital necessarily invested in their business, be left completely at the mercy of their performers.
- The second distortion occurred with regard to the contract language. Unlike her contract with McCaull, Russell’s contract with Duff contained no negative covenant of any kind. The absence of such a covenant did not give Judge Freedman pause, however; he was prepared to imply one. He stated:
- It did not occur to Judge Freedman that if the defendant sought to get out of a contract that lacked an exclusivity clause, it made no difference whether the contract called for seven performances a week or two. Nothing in the contract specified that she should not perform elsewhere, either while the engagement continued or if, and when, she quit.
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Chapter 10. The King of Rockingham County and the Original Bridge to Nowhere 39 results (showing 5 best matches)
- ., 275 U.S. 536 (1927), in which the Fourth Circuit upheld a lower court’s injunction against a union from fighting yellow-dog contracts. The “opinion ignited massive opposition from members of organized labor and their putative allies in academe, the press, and the Senate.”
- It is quite safe to say that no story-book hero ever has a more romantic history than B. Frank Mebane, industrial tycoon, town builder, millionaire, philanthropist, and patron of the arts. He was the most fabulous and colorful character to appear on the Leaksville community scene during the life of the town, and its mightiest personal force for a generation.
- A Bridge, A Tax Revolt, and the Struggle to Industrialize: The Story and Legacy of
- , for example, identified the central issue in the case to be one of local government contracting: “The case will probably make clear whether one board of county commissioners can arbitrarily repudiate the contract of another and ‘get by’ to the loss of the outside party,” or similarly make disingenuous promises it knows future commissioners will refuse to keep. Indeed, Rockingham County originally denied that it was obligated to any legally binding contract, arguing that the contract was entered into under undue influence and was contrary to public interest. However illegitimate Mebane’s usurpation of power might have been, permitting Rockingham County to advance such a defense would damage all counties’ credibility when committing to contracts. This would undermine a source of authority that counties need most to meet the demands of industrialization, since contracting with private parties—bridge companies, railroads, and educators—is essential to meet demands for public...
- This chapter has three objectives: It identifies the case’s original importance, uncovers the opinion’s political and jurisprudential significance, and tells a remarkable story, one that arose within a heated tax revolt pitting the county’s farmers against its most celebrated industrialist. Much more than a crisp illustration of the duty to mitigate,
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Chapter 11. A Fish Story: Alaska Packers’ Association v. Domenico 33 results (showing 5 best matches)
- In the second section, I present the “background story.” I attempt to situate the legal decision in the context of the growth of the salmon industry and the formation of the Alaska Packers’ Association (“Alaska Packers”)—“the fish trust” that operated the cannery at Pyramid Harbor. I also provide details about the cannery operation at Pyramid Harbor, which is where the “action” of the case occurs.
- The Traditional Story
- The Background Story: Alaska Canneries in the Gilded Age
- With this understanding of how the cannery at Pyramid Harbor operated, as well as a broad brush picture of the Alaskan canned salmon industry, it is now possible to consider some alternative narratives to the “traditional story” enshrined in the two court opinions.
- Alternative Stories
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Chapter 1. Hadley v. Baxendale: A Study in the Industrialization of the Law 33 results (showing 5 best matches)
- Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.
- to the contemporary law affecting common carriers may be a predicate to comprehending the impulse behind the rule and its form, but standing alone it tells only a part of the story. I think the rule in
- : A Story in the Industrialization of Law, 4 J. Legal Stud. 249 (1975), published by the University of Chicago. Copyright 1975 by The University of Chicago. All rights reserved.
- is frequently described as a case involving a claim for damages consequent on a breach of a negotiated contract for especially quick delivery of a consigned package; but in fact, although this was the first of two counts on which the Hadleys initially pressed their suit, both the official and the contemporary press reports make it clear that before going to trial against Baxendale they abandoned all claim to damages based on a specific contract. Instead their pleadings claimed damages arising as a consequence of Pickford’s failure to effect delivery “within a reasonable time” as it was obliged to do because of its status as a common carrier. If, as Maine posited ten years after , the process of modernization involves a movement from status to contract, this most famed of modern contract cases is peculiarly antiquarian!
- defendant’s breach of contract, and with that view they would have to consider whether the stoppages of the Plaintiff’s works was one of the probable and natural consequences of that breach of contract, and then, looking to all the circumstances of the case and the position of the parties, to say what was the amount of the damages occasioned by the stoppage of the works.
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Chapter 5. Developing Markets in Baby-Making: In the Matter of Baby M 24 results (showing 5 best matches)
- Bill and Betsy Stern remained in Tenafly with Melissa and have granted no interviews since the decision was handed down. Tenafly seems to have protected the Stern family in their desire for privacy. As one “Tenafly native” told a reporter looking for a story on Melissa’s thirteenth birthday, “Bringing up this child’s past will only hurt her in the long run…. Nobody wants to revisit the pain and suffering surrounding the case. Nobody. And in this town, everyone knows everybody.”
- What about Baby M herself? In 2005, a syndicated newspaper article featured a picture of one Melissa Stern of Tenafly, New Jersey. The article had nothing to do with surrogacy but was simply a human interest story on the use of laptops by college students. And there she was, just another freshman, working away on an assignment while plugged into her iPod.
- Every aspect of the six-week trial—from Tuesday’s tears to Betsy’s (real) hair color to expert testimony on the best way to play patty cake—was covered in depth and worldwide, as was the trial court’s decision ordering specific performance of the contract and awarding the Sterns custody of the baby. The case remained in the news during Mary Beth’s appeal to the New Jersey Supreme Court, as paparazzi snapped away at Mary Beth arriving for her weekly supervised visitation and as partisans on both sides prepared amici briefs and battled it out on op-ed pages nationwide. On February 3, 1988, the New Jersey Supreme Court reversed the trial court decision, declaring that under New Jersey law, surrogacy contracts were “illegal and possibly criminal.” Although it declared the surrogacy contract was void, the Court awarded custody of the baby to the Sterns, no longer as a matter of contract enforcement but applying the “best interest of the child” standard used generally in contested...
- , complete with a photo of the couple in silhouette and Keane looking professorial in wire-rimmed glasses. The story was picked up by the Associated Press and published nationwide. Publicity snowballed as Keane granted more print and radio interviews and made the first of his five appearances on the
- for a simple reason. Other than placing classified ads, the only effective way of finding surrogate mothers was through television and news articles. The true fathers of the surrogate motherhood story, perhaps are the
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- Publication Date: November 14th, 2006
- ISBN: 9781587787218
- Subject: Contracts
- Series: Law Stories
- Type: Overviews
- Description: In this offering, the editors are joined by other leading contracts scholars in placing the major cases in contract law in their historical and cultural context. Each of the 11 short and readily accessible chapters provides newly uncovered facts about and insights into the cases that lie at the core of the first-year contracts class. Long-standing puzzles are answered and these answers in turn are linked to the larger political and social forces at work, demonstrating how these forces have shaped the evolution of contract law.