Literature, Culture and Contracts
This symposium issue is devoted to articles about teaching contract law. It is a topic broad enough to cover philosophy, methodology as well as substantive law. In some ways, the topic recognizes that there is a relationship among these areas of concern – the way you think about teaching may alter the way you teach may alter the choices you make with respect to content. The factors just mentioned are presented in what looks like a linear sequence, suggestive of some sort of sequential causality. But the “linear” sequence can be reversed or reordered. It is not that the parts are interchangeable, it is that they are interdependent. A holistic analysis is well suited to the subject of law teaching because it is impossible to separate the “how “of teaching, teaching style or technique, if you will, from the “what” of teaching, teaching goals. And teaching goals can be very complex. Is the goal simply to communicate a body of information, to teach what is called lack of a better term, lawyering skills or to teach students in a way that is emancipatory.
Many law teachers develop their own materials precisely because they recognize that teaching goals, teaching style and course materials are connected in a fundamental way. In the end, if a law professor is lucky, this process of assembling materials becomes more formal or more focused and the result is a casebook. That is what happened to us – Amy Kastely, Sharon Hom and me. And when all was said and done, some four years or more after we started the process, we had a casebook that is viewed by some as “unorthodox” and by others as heretical. 
If you were to survey the consumers of Contracting Law, both the adventurous souls who use the book to teach and the students who are taught from or by it, the poetry and literature included in the book would provoke the most comments. And the reaction of students has been varied. There are always students who love the material either because they view it as a welcome relief from what they see as the unrelenting monotony of cases or because they were liberal arts majors who miss the kind of intellectual stimulation they had as undergraduates. But there are also students who just do not see the relevance of fiction to law. This article is an attempt to explain to law teachers both why we use literature and how we use literature to teach contracts law. And perhaps in the process we can make the relevance of fiction to non-fiction, of short stories to the “true stories” in judicial opinions and to legal theory, explanations of law and the way it works, will also be a little clearer.
We think the book’s greatest strength is that it features an interdisciplinary approach. The use of a “law and” approach is not unusual. There are several books that are explicitly or implicitly “law and economics” casebooks and at least one casebook with an explicitly sociological or law and society approach. Our decision to combine law and literature could be seen as an attempt to offer an alternative to the near monopoly that economics has in the field of contracts. Alternatively, it might be characterized, more cynically, as an attempt to capitalize on the exciting discussion of the relevance of literature to law. But ours was not a decision made in order to capture a market niche. The decision was a natural by-product of our teaching experiences. The choices we made with respect to the material we wanted to teach and that we thought others might want to teach reflect our collective experience teaching law students and commitment to a critical perspective. We all teach students who are bright and highly motivated. Many of them have already experienced the way schools reproduce the “ideological and material forms of privilege and domination that structure the lives of students.”  If we want them to learn the law in a meaningful way, we have to give them more than rules and doctrines. We want to give them back a knowledge of their own history and culture; we want to encourage them to consider all aspects of the human condition. “Literature”, broadly defined, helps with both. .
This is an argument in favor of theory. An interdisciplinary approach is a theoretical approach. It is not theory in the positivist sense, the overarching, generalizing, universal principle type theory. It is theory in the sense of cultural critique, similar to what one might find in the social sciences, particularly anthropology. Contract theory in this instance invites students to move from the particular to the general; to consider the ramifications of a particular decision on others who might be situated similarly; to consider how developments that have taken place on a national or international level, demographic or political or economic changes, are implicated in a particular dispute. I ask myself: what level of understanding do I want my students to have before they begin the practice of law? More importantly, what level of understanding would offer the best prospects for the development of the law, if by development we mean the possibility of improvement in human relationships and in the prospect for a justice and equity in our society? My answer is that lawyers should understand the particulars of a case and the human dynamics involved, the life experiences that inform the choices the parties made, but they also need to understand how a case fits into a larger scheme; how it repeats and replays issues that are contested culturally and politically.
That belief drives my pedagogy. It wants to stimulate conversations that are culturally self-conscious. I want my students to understand the meaning of legal doctrines, legal discourse, and legal institutions and the role that these play in structuring and maintaining social relationships. Lawyering, as is repeatedly emphasized, is an exercise in problem solving. Problem solving is not simply a matter of classifying a particular set of facts in the proper way: contract. Tort, property; nor is it simply a matter of recognizing the legal theories or doctrines that can be used in litigation (or in negotiation ) because these rules purport to determine who is right and who is wrong in a particular dispute. It is not just anticipating what the issues might be down the road, counseling clients who are about to enter into or alter their contractual relationship. What a lawyer should know before he or she begins to consider the options available to a client is the meaning that the client assigns to the relationship, the expectations the parties have of one another, the desires/needs/passions that motivate the parties to engage in or disengage from an exchange relationship. Such expectations are not just individual and idiosyncratic, they are also culturally defined.
Years ago at a teaching conference, Louise Harmon and I were demonstrating our approach to team teaching. Louise was using Wittgenstein and a discussion of hermeneutics as a new way to think about Frigaliment. I remember saying to the faculty members gathered there that that students should not be deprived of the opportunity to know and to name the theories and the people who have advanced the theories that can help them understand the law. I haven’t taught the “chicken case” with Louise in a while, but on reflection, I realize that what we were doing then is not inconsistent with what I have done since. Part of the project is transparency: letting students know the source of what they are learning; why you think they should learn what you are trying to teach them.
Critical Perspectives: Making Culture Visible
Meaning, in the anthropological sense, meaning as it applies to the position that people occupy in a social system, is a difficult concept for most students to grasp. It is easier to talk about meaning, though, than it is to talk about culture. When I use the term culture, I do so reluctantly. But no other term is better suited to describe what it is that I am trying to teach. I want students to see the “world view”, the ethos, that pervades contract law. Contract law and theory is replete with ideas about who people are, where they belong, what they can do. There are ideas about entitlement, about power, about the value attached to what we make and what we sell. There are ideas about human nature and human potential, ideas about good and bad behavior and the duties we owe to one another.
The relationship between social position, power and law, all of which seems natural and self evident because of the ethos of the dominant culture, is also difficult to teach law students. The cultural anthropologist is trained to analyze what people think, feel and believe by looking at what they say and do. Most law students do not have this skill; they are not self-conscious observers of human nature and human relationships.
We live in a society that denies the existence of class with even greater conviction than it does the existence and meaning of social divisions based on gender, race, ethnicity or sexual orientation. When you try to make social structure or social organization, the sentiments and the beliefs that support it and replicate it, visible, you are asking students to peer into their own minds and hearts; to confront the way they think about, organize, and explain human conduct and events to themselves. Anthony Amsterdam and Jerome Bruner call this “quickening consciousness.” Whatever we call it, a law teacher who attempts it should be prepared for the particular challenges involved and aware of the risks involved.
This is not simply a matter of style – problem approach versus Socratic Method or something like that. It is not about introducing lawyering skills like drafting or argumentation into the core curriculum. I, along with most law teachers in my age cohort, have altered some of my teaching techniques to make learning more meaningful for more law students. Taking the lessons I learned in a graduate anthropology class, long before I dreamed of teaching law school, where I first read the work of Paolo Freire, I subscribe to the notion that learning should be connected to information the student needs and wants to know. I have, like many other law teachers, experimented with experiential learning and with linking what students study to the kinds of performances that will be expected of them as lawyers. In contracts, I have used drafting exercises and client counseling and appellate style arguments (even before the first years have done their appellate briefs in legal writing/legal methods).
But the use of literature is not about that kind of connection. It is not about the desire for status or the identification with the profession that makes young law students anxious to acquire specific skills. I am struggling to translate Paolo Freire’s example, quite concrete and detailed, for educating illiterate Brazilian peasants, into something that works for graduate students in the United States. Paolo Freire discusses “limit situations” — obstacles to learning that are so deeply rooted they have become a matter of faith, but the methodology he uses so effectively to allow those peasants to see and understand their own life circumstances and the structure of the relationships in their society, the power doesn’t necessarily work with students who grow up in the foreground of a complex, large scale late capitalist society like the United States. Or perhaps the problem is simply that I do not have Freire’s “faith in the power of the oppressed to struggle in the interests of their own liberation.”  The biggest problem is anger, the students’ emotional reaction when what has been accepted as a matter of faith is challenged by conflicting facts or logical arguments.
I once had a group of students in a first year class who could not make any progress in reviewing and commenting on a contract I had given them. They could not get past their disbelief. To them the situation was totally unrealistic and completely artificial even though they knew the contract had been supplied by a classmate whose brother, a non-lawyer, had drafted it. Their disbelief arose from the subject matter of the contract. It was a contract to provide consulting services with respect to socially responsible investing. What the students told me as I sat and talked to them was that they could not believe that an investor would ever have any goal other than the maximization of profits. And, they said, making the decisions based on other values, a concern for the environment or human rights, would necessarily result in lower profits.
I was not unsympathetic to their plight—the mental paralysis that comes when you can’t get beyond your own beliefs to consider an issue. I was once confronted with a similar situation as a student. My family law teacher, Frank Sanders, called on me and asked me to formulate an argument on behalf of a man who did not wish to pay child support. I sat there for a moment, eight months pregnant, in complete silence and then admitted that I could not imagine any circumstances or any legal argument for that client. Actually, I should have said, I cannot imagine even having that person as a client.
I should have known from my own experience that a student’s world view, his assumptions about shared values and ideals, his notion of the way the world is structured, will affect his ability to imagine solutions to legal problems. I now know, or I have learned, that there is a difference between imagining what the world looks like from another perspective; seeing the arguments that can be made from that perspective, and adopting or embracing that perspective or view. We tell our students this all the time. We tell them, using the adversarial system as both explanation and justification, that they must be able to anticipate the arguments that someone else will make in order to counter them effectively. I wonder whether it might not be better just to tell them that being able to see issues or problems from different perspectives is valuable because otherwise we are unaware of the fact that we have a perspective and a view. There is no other way to see the unexamined or unquestioned beliefs that inform our sense of right and wrong, fair and unfair, just and unjust.
A critical perspective is often nothing more or less than a comparative approach. It is comparative in the sense that there is an explicit acknowledgment of the cloaking function of hegemony. In Contracting Law, we use examples from a profoundly heterogeneous American society. Cultural and social heterogeneity is proved not just through the selection of cases but also in the use of literature, film, news articles, and essays. What is revealed is not just information about people often thought of as “other.” What is revealed is information about the dominant culture – populist and agrarian sentiments, the tradition of the enlightenment with its emphasis on rationality and scientific progress, democratic principles and the value placed on individual autonomy, the social expectations created by wealth, age, sex, sexuality, physical and mental impairments among others, and the commitment to a free market and to progress that is often tied to technological development.
Recognizing the Facts in Fiction
The only thing that is unconventional about our approach is the fact that the students are given direct access to material that we know, use, appreciate in our own attempts to describe, explain, and teach the law to them. I think it is better for me as a teacher and better for my students to have this supplemental vision of reality offered to them in a variety of ways and by a variety of people with different “voices,” preferably in a form that connects the view with a lived experience. How do we learn about people who live lives radically different from their own? What gives us the freedom to admit or take pride in our own experiences as the “outsider”; to know that it is both appropriate and legitimate to explore what this means to us as prospective lawyers?
In our chapter on the consideration doctrine we have a case involving a suit against a government sponsored free clinic that provided prenatal care. There was a problem with the delivery of Jessica Lawrence and the parents, Douglas and Ethel Lawrence, sued the Ingham County Michigan Pre-Natal clinic, the hospital and the doctors who they felt were responsible for the fact that Jessica suffered brain damage at birth. The case was resolved using the doctrine of consideration. According to the judges, there was no bargained for exchange because the couple did not pay for the medical treatment the mother received while she was pregnant or at the time of her delivery. Now this is a case that most students would consider, on an intuitive level, to be right. But what are the assumptions that support this view?
As a companion to this case we included a short story by a black woman writer, Paulette Childress White, Getting the Facts of Life. It is told from the perspective of a young woman who must accompany her mother to the welfare office to ask for money to buy school clothes. It is a story about the shame and indignities poor people are made to suffer at the hands of government officials whose job it is to help them. It is about paternalism and the judgments that are made about the reasons why people find themselves in desperate circumstances; the liberties that would not be taken in commenting on the life choices poor people make.
How does this story add to the understanding of the case? At the level at which most students read the case, the level that focuses on the plight of a particular individual who is involved in a dispute, the people who have no money to pay for prenatal care may take on substance. A poor person is a human being who has feelings and emotions; someone who has experienced a serious loss. At another level, on a more abstract level, the story and the case are about the way we treat the poor and the assumptions we make about entitlements, including the right to complain when an agent of the government mistreats you or causes you injury. It is about values, the notion that only money gives you the right to demand competency from service providers. It is about the trust that people put in professionals and the idea that the trust cannot be vindicated if you are poor. Getting the Facts of Life illuminates the underlying assumptions in the case, the notion that if you get something for free, you have to take whatever comes with it, including incompetence or negligence, that results in injury to you.
The short story is a valuable tool. It teaches students about the particular and the general, about the dignity of one poor person and the plight of poor people in our society. A case about a tragic result of a pregnancy also invites a discussion of the way health care is provided in our society; about the duty of government to the people who are governed; about the duty that family members owe to one another.
Contract cases often characterize contractual duties as “voluntary” but there has never been a clear line between contractual duties and systems of obligation that are defined by status, by the roles imposed on us or assumed in the course of a lifetime. Even the status relationships most often used to demonstrate the evolution of law – kinship – involves both ascribed and assumed status, relationships that are biological and contractual.  We are born into some kinship relationships; but we enter into others through a process of exchange. And it is the exchange relationships between family members, biological and affinal, that provide some of the most interesting material for first year law students. They provide insight into the relationship between the legal regime, social position and individual expectations.
In the introductory chapter we include O’Henry’s classic: The Gift of the Magi. The ideal of complete selflessness is a cliché in this age of the “material girl” or material guys for that matter, but even O’Henry’s story, written at the very beginning of the Twentieth Century, complicates the simple dichotomy between market and private transactions or exchange. It is a story that features various examples of human behavior by those engaged in commerce, behavior that could be described as acts of generosity or altruism or greed and complete self-interest. And Jim and Della Dillingham spend a significant amount of time discussing the acquisition of material goods – a necessary correlative of establishing a household and beginning a family. There is no absolute opposition set up between the market and the non-market transactions.
The Gift of the Magi is a way of introducing students to their own preconceptions about families as an economic unit: why they think there is a difference between market and non-market transactions; why and how exchanges are enforced; what systems, informal or formal, are appropriate to use in resolving conflicts in both areas. They do not all agree except that for all of them, context matters. Some of them think that when you go to live on a farm, room and board is sufficient payment for your work or labor on that farm; others think that the value of the labor of marital or other partners can and should be quantified and considered whether the issue is the equitable distribution that should take place after the break up of a gay couple or the enforcement of the implied promises made to the woman who survives the man with whom she cohabited.
Persistence and Penetration: Change and Cultural Continuity
My first research project after I began teaching concerned both contract and business law. In the course of this research I discovered the link between my prior interest in anthropology and my work as a legal scholar. And it was the discussion of intent in these partnership cases that provided insight into the role of culture in contract jurisprudence. It was this first piece, a doctrinal history, that also showed me the importance of repetition, that situations repeat themselves, problems repeat themselves, solutions repeat themselves over the course of time.
The repetition is tied, inevitably, to the fact that a particular group of people see the world in a particular way but that vision, hegemonic though it might be, is also contested. The contest is ongoing, enduring, and provides frequent opportunities for the _expression of alternative ideals and the affirmation or rejection by the legal system of prevailing or dominant values.
I have not had an opportunity to use it before this essay except in a speech I gave at Michigan, but one of my favorite cases in Texas partnership law involved a change in the rules that governed partnership (contract) formation. Initially, where a person received a share of the net profits of a business, he was treated as a partner, at least when it came to criminal law and the charge of embezzlement. In Butler v. State, the Texas Court of Criminal Appeals abandoned that bright line rule. The definition of partnership emphasized that two or more persons could “combine their capital, labor or skill for the purpose of a business for their common benefit.” But the court conceded that where one person put up money, it was more likely than not that the person who put in labor was his agent, not his partner, particularly when both parties testified that they did not intend a partnership.
But intent is supposed to be objective, not subjective. The relationship between the two – objective and subjective – is cultural. It is hard to intend something that the dominant culture rejects as a possibility; that is unimaginable and even abhorrent to most people in that society. As the dissent in Butler v. The State points out, in Texas in 1908, no white man and no black man could be partners, equals, co-owners of a business. And if it had not been for the dissent, the role that race played in the court’s deliberations would have been invisible. No mention was made in the majority opinion to the race of the defendant. Cultural norms – ideas about the relationship between blacks and whites – supplied meaning for the court; supplied rules about behavior that made it possible for the court to interpret the conduct of the party; made it impossible for the defendant to argue that the rules demanding social, political, economic inequality did not apply in his case. Any legal rule that would have produced a result antithetical to the most fervent belief in the social and economic inequality of the Negro could not stand. The movement from bright line rules to a test of intent was something that was “in the air” so to speak in the early part of the twentieth century. But the fact that existing precedent would have produced an anathema to the white community must have given the Texas courts incentive to adopt an alternative approach to partnership formation.
We make much of the process of legal change when we teach law school. We like to use cases that we think show the way judges move the law along, respond to changing social conditions or emerging norms. But here was a case where the law changed to keep the social conditions the same. The point is, legal change is not always about progress in the human condition. Sometimes legal change, a change in legal doctrines, is used to maintain the status quo. We can and should use case law to demonstrate continuity in ideas and in social phenomena.
Repetition is crucial to our knowing; to the process of learning. Repetition takes many forms but for us, authors of a casebook, it takes the form of cases that reveal aspects of both social structure and beliefs and values in the United States. Whether it is Brandeis writing about working conditions of women or Corbin piling up cases that show the existence of something called “promissory estoppel,” empirical evidence and persuasion are linked. Persuasion is the largest part of teaching.
Students can repeat, but they have not “learned” an idea or concept or fact that believe is untrue. And even when confronted with evidence, human beings are capable of ignoring, redefining, rationalizing beliefs that are not in accord with facts. But sometimes repetition has an effect; sometimes the person confronted with “evidence” begins to see patterns emerge. She learns something she didn’t know, she gains insight she didn’t have. So in constructing this casebook, we have tried to use repetition to illustrate cultural continuities, to show how the law is used to create and maintain social and economic inequality.
There are themes that run through the book. The most obvious is the decision to make the three principles of reliance, restitution and bargain the framework within which the students operate. It provides structure as do the provisions of the restatement and the U.C.C. But more than that, we use cases throughout the book that are drawn from similar kinds of exchanges. There are cases involving exchange between and among family members, employment relationships — private, public, individual and collective; cases involving the provision of health care, the agricultural sector of the economy and consumer transactions.
Our original idea was to begin with Baby M. Ultimately we decided to begin with from the 19th century, Coolidge v. Pua’aiki and Kea. The contract in Coolidge is an employment contract. There are many people who ask us why we start with such a difficult and for lack of a better work, remote, case. I am using the word remote to signal social distance – distance in time, it is a case decided in the 1870s, and social distance — it involves a conflict between a privileged class of white planters and members of a conquered indigenous community working as contract laborers. In short, many students and faculty (except, perhaps, students in Hawaii) initially feel that this book has nothing to do with them. But Pua’aiki is one of the ways we show cultural continuity.
The case is a good place to start because, if nothing else, the case shows the contradictions inherent in the ideology of consent; the unrepentant dishonesty of a dramatically coercive legal system working hard to preserve the power of those who buy labor over those who sell their labor. If you want to focus attention in a pointed way on the disconnect between discourse and social realities, there is no better choice to be made than a case which features language about “voluntariness” while laborers who have breached their contract are being forced to work for free for a period twice the length of the original contract
Over and over again throughout the book we try to contrast the reality of the limited choices that people have with the use in contract discourse of the powerful idea that people are acting “voluntarily.” There are countless opportunities to look at the double standards that abound in the law: the standards applied to unwed mothers, workers, gay men or the poor – imposing a duty to read, a duty to be self reliant; specious arguments that assume that terms are negotiable if the less powerful party had merely raised the issue, exist in opposition to rules that forgive the more powerful participants or examples of the way the “rules” that govern contract law are suspended when they work to the disadvantage of these parties. In Pua’aiki the court imposes a criminal sentence on workers in a case that acknowledges that the employers are seldom prosecuted and virtually never imprisoned when they breach contracts. But there are plenty of contemporary cases that provide an opportunity to examine such asymmetries and to ask important questions about incentives and disincentives for skepticism and caution, due care and self reliance or for honesty, fairness and trust. There are discussions that can be started about power, control over the contract and issues of risk allocation.
To return to Pua’aiki for a moment and the lessons we learn from history about cultural continuity, it is important and necessary, of course, to point out that Hawaii was not part of the U.S. at the time of this case; that anti-peonage statutes were adopted in the U.S. after the Civil War that should, theoretically at least, outlawed a system where breach of contract was criminalized. But even on the mainland, that was a legal battle fought well into the middle of the twentieth century. The more modern peonage cases are against employers who have lured and then imprisoned immigrants in the U.S. But in these cases too the courts resort, once again, to the notion of choice and voluntariness. Theirs is a very narrow and limited notion of coercion. And Judge Friendly at least, expresses his distrust of the working class, the people protected by such statutes. They would, he thought, fabricate stories of coercion to get even with employers.
But the circumstances that existed at the time of Pua’aiki continue to recur. We are living in a time reminiscent of the era when Coolidge, Pau’aiki and Kea litigated their contract, when there were labor shortages in Hawaii and a strong desire on the part of the colonists to transform Hawaii’s economy. Today, employers in the U.S. are also faced with labor shortages. They too want low cost labor and the market exigencies motivate governments to do what they can to relieve that shortage. While the Federal Reserve Chairman, Arthur Greenspan worries over the possibility that labor scarcity will lead to wage increases and inflation, farmers and high tech companies lobby for changes in the immigration laws to admit unskilled workers as temporary laborers and skilled laborers as permanent residents, respectively.
When students say of Pua’aiki and Kea, “that couldn’t happen today” it is seems quite appropriate to ask them what the “that” is they think can’t happen today. The Hawaiian government, complicit in the enterprise of supplying cheap labor, attempted to protect the workers. There were statutory provisions that were designed to put laborers on notice of the terms of the contract. And the additional formality of requiring a witness, a government appointed notary, in Pua’iaki is mirrored today in a variety of contemporary statutes in which the potential for exploitation and unfair terms exist. The potential for injury or harm is an issue in adoption statutes, pre-nuptual agreements, surrogacy contracts. Each of these species of contracts is dealt with legislatively and in most cases the statutes attempt either to limit the contractual excesses which the more powerful party might attempt or alternatively, to buttress the assumption that the less powerful party entered into the unequal relationship voluntarily.
Contract law treats employers and employees differently. But why? Part of the reason may be found in class bias, in the sentiments expressed by Judge Friendly – that people who work for a living cannot be trusted with power. It is not a sentiment that is unfamiliar to our students. It is a sentiment they can recognize and that they sometimes express in a counter critique when I point out the asymmetries mentioned earlier. I teach from a case involving the presumption of at will employment, Rowe v. Montgomery Ward. The case has many dimensions to it, including the court’s reliance on class distinctions to explain what an employment candidate can expect. An executive’s understanding and expectations are different from someone who walks in off the street and applies for a simple line position.
But there are other ways of showing what is true or real to students. This way is “empirical” as well. Literature offers an “inside view” of aspects of human behavior, the internal as well as external; what people think and feel and why they behave as they do. Both kinds of information are critical to this enterprise. Long before we get to Rowe v. Montgomery Ward, we have talked about the expectations of people who work on commission; whose life is sales? The students have already read an excerpt from Death of a Salesman. They have seen Dustin Hoffman’s powerful rendition of Willie Loman’s accusation that “there were promises made across this table…You can’t eat the orange and throw away the peel away – a man is not a piece of fruit and throw away the peel.” And this story appears in close proximity to Embry v. McKittrick, a case that is traditionally used to teach the requirement that there be a “mutual manifestation of assent” and that meaning of the objective test. The reasonable person test articulated in Embry stands in stark opposition to the cases involving plant closings and contracts, like Rowe, where the court finds that the contract was terminable at will.
To reinforce what was learned with the use of Death of a Salesman, so that we can understand why Mary Rowe thought she had a right to leave work and keep the purpose of her errand to herself, we have the short piece by Louise Harmon describing the distinctions between what is private and what is public for those who work in sales. It makes it easier to see why Mary Rowe thought that her firing was unjust. It is harder to understand how the court could disregard behavior on her part that showed, unequivocally, that she did not understand her contract to be one at will and that she never assented to this term.
And as this court argues that it is unreasonable for anyone to understand that he or she can only be fired for cause, we have read several cases where the employees thought just that and the conduct of the employer seemed to suggest that this understanding was correct. Students can see that legal presumptions, purportedly grounded in shared experience and common understanding of the world, are contested. And the law operates to protect one group of participants in the market from the other, to change the rules and defeat the potential democratization of contract law.
Yet none of this is an argument against the one offered by Judge Friendly or by a student who echoed his sentiments in a defense of the decision in Montgomery Ward. The traditional rules of offer and acceptance should not apply in employment cases, he said. If an objective test that looks at what was said by an employer and what would have been understood by a reasonable person in the position of an employment candidate were applied, the courts would be overwhelmed with frivolous claims. Employees would lie. Not a particular employee, all employees. This is not an argument about facts. This is an argument about beliefs. This is an argument about the qualities of character that belong to a group of people, qualities that make members of that group less credible. Is it possible to show the sentiments that operate silently, invisibly in the development and the application of contract law? If we chose the right cases, if we invite students to discuss the reasons why they think that cases are wrong or right.
A similar opportunity to get at the values and ideals that are culturally determined when discuss defenses. Students are exposed to doctrines that work to protect those whom the law assumes cannot protect themselves –infants, those who suffer from some form of mental incapacity and those who are poor, old, uneducated or those who are easy prey for financial predators. Some students dislike these cases because they despise the people in them – welfare mothers, alcoholics, the mentally ill. They repudiate the lack of self-reliance and the weakness of these people. It is here we have included an excerpt from Annie Proulx’s Shipping News, the story of a born loser, Quoyle, a man who is short on self esteem and sound judgment The world’s most gullible man. Did he make a mistake when he bought a boat that no self respecting New Founder would buy? Did the seller misrepresent the quality of the boat to him? Should he be able to rescind the contract? Somehow it is all right to make fun of Quoyle; to air sentiments about his weaknesses. These are comments that students wouldn’t dare say about poor welfare mothers (assumed to be black ) or mentally impaired people or even alcoholics. But having said them, we can discuss why it is that the faults of the buyer are foremost in their minds while they are willing to overlook the faults of the seller, verging on fraud, are overlooked or ignored.
The vast majority of students attending law school are either students who have been raised privileged by parents who were willing to give them the best advantages within their means or they are students who have struggled to pull themselves up by the bootstraps, to escape from working class (not poor usually) backgrounds and reach the solid middle class. The privileged students cannot imagine what it would be like to be average and without the resources that assure a person the kind of education and job that will maintain them in the middle class. The working class student often thinks that anyone who does not have the same drive and motivation that he or she has is somehow deficient. Both groups believe in and appreciate the significance of hierarchy. They are committed to being on top, not on the bottom.
But they do see; they can’t help but see that there are little cracks in the myth of meritocracy that supports this hierarchy. They rankle at the idea that their worth or potential as a lawyer could be measured by a single examination, the LSAT. So the Dalton case is particularly appealing to them. It is the tremendous power that ETS has to ration out a resource that arguably should be available to all who are willing to work or it (and pay for it, of course), that gets them going. And the essay by Amy Tan talking about the reasons why a standardized test can be confusing, why the assumption that there is only one way to reason, one form of logic, one way to understand and appreciate the relationship between words, will add a lot to this discussion.
The fact is that position is not always outside or down below. Sometimes it is right in the middle – of the class structure, of the culture, of the political regime. And for law students to really learn something, they have to know where they are positioned, that they have to look up and down to understand the meaning of legal doctrines. But for their choice of graduate program, the students could well be the engineers in Skyfox v. Boeing, struggling to build a plane they designed. Boeing successfully avoids liability on a contract with this small start up company that just might have been in competition for a government contract if Boeing had not offered to finance the research and development of their plane and written in a term that made that promise illusory as soon as Boeing obtained the contract for itself. But there was no bad faith there just as their was no fiduciary obligation – because the contract said so. Human capital, the favorite phrase of economists and some jurispruds, doesn’t buy you much without real capital and the people who have real capital also have control over the contract and the legislatures that could intervene and redistribute some of that power – give the person with human capital a little leverage. Take Dr. Erich Platzer, Dr. Karl Welte and Dr. Roland Mertelsmann v. Sloan-Kettering Institute for Cancer Research, a case in which two doctors develop the drug that is used on patients undergoing chemotherapy to stimulate the growth of blood cells. The companion piece is Andrea Barrett’s short story, The Behavior of the Hawkweeds. This is a story about Mendel and the science of genetics, appropriate under the circumstances, but it is also about the expectations of those who are creative, the people who add something to the world and the sense of entitlement that goes with it. Drs. Platzer, Welte and Mertelsmann thought they were entitled to one half of the not inconsiderable profits when this drug was marketed but Congress, their research institution and the major pharmaceutical company decided otherwise.
Position, power, values and ideals. All are part of the amorphous concept culture and culture provides the template that students use when they assign meaning assign to the facts in every case and evaluate the way in which particular doctrines, in this case, the third party beneficiary doctrine, have been applied in a case. The doctrines don’t answer the related questions: who should finance medical research, who owns the property created by medical research, who should profit from the discovery and how should this property, so essential the well being of many citizens be distributed to those in need? In selecting a doctrine and applying it, wouldn’t it be wonderful if students could see the relationship between the particular case and these broader issues? As I said, there is a contest involved but it is more than a political contest. It is a contest between competing values, conflicting notions of ownership and entitlement and different visions of what it means to “preserve the public welfare and promote the public good.”
The law plays an important role in this contest and students of the law should know what that part is. They should never participate blindly without knowledge of the impact the work they do can have on themselves, their family and friends on complete strangers and on the world that they are living in or the world they would like to create.
 This has also been described by critical theorists in education as a goal of “self and social empowerment” within the “broad Western humanist tradition.” Henry A. Giroux, Teachers as Intellectuals: Toward a Critical Pedagogy of Learning xxx (1988). Probably the most important aspect of this approach is that it tries to bring to the surface questions about the relationship between “knowledge, power and domination.” Id.
 The text we developed is not traditional; it is not a “back to basics” kind of book even though it has a full complement of cases that are contemporary and part of the “canon” in contracts. It also includes the Restatement Second of Contracts and the Uniform Commercial Code.
 See e.g. Burton, Barnett,
 MacCauley et al
 Robin West and Richard Posner
 Giroux at xxix
 George E. Marcus and Michael M.J. Fischer, Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences (1986).
 It is the attempt to combine an interpretive approach and a knowledge of or interest in political economy that characterizes the cultural critique that Marcus and Fischer describe as the “experimental moment” in cultural anthropology and in the production of ethnographies.
 Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F. Supp. 116 (1960).
 Minority Law Teachers conference in D.C. in ?
Anthony G. Amsterdam and Jerome Bruner, Minding the Law 4 (2000). Bruner who is a cultural psychologist s The authors begin with the premise that For a good discussion of the way that “our ways of conceiving of things” becomes so routine that “they disappear from consciousness.” Id. at 1. According to Bruner and Amsterdam the law can be as habitual as other cultural practices and “familiarity insulates habitual ways of thinking from inspections that that might find them senseless, needless, and unserviceable.” Id. at 2. The authors propose that we make “the familiar strange” for law students; that a comparative approach – comparing disciplines like literature, poetry and history – is a source of an “estranging methodology”. The importance of a comparative approach to critical theory has also been made by anthropologist. See George E. Marcus and Michael M. J. Fischer, Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences (1986).
 Paolo Freire, Pedagogy of the Oppressed (1973)
 Even though law students are all there to learn the “law”, the law should be presented in a way that raises questions and poses problems for solution that have some relevance to the students’ own situation. One of the difficult issues involves the difference between what students “want” and what they think they “need.” Freire assumes that if the dialogic process proceeds in the appropriate manner, there will be no distinction between the two. I am not so sure. Perhaps I am merely clinging to the model of education in which I am both Narrator and Authority. I do agree, however, that students should develop a sense of their own situation, a sense of historical awareness. The educator’s task, always a collaborative one that involves the participation of the “students”, should be to “re-present” the world and the themes the students have identified as important as problems that have to be solved. Consciousness and awareness are preliminary to intervention and action, both of which are viewed as liberatory. See Freire, supra note ___.
 Giroux at 109.
 I reject any suggestion that being able to contemplate the argument that would be made on behalf of a client or the opposing party in a case means that lawyers are or should be “hired guns”. See e.g. the description of various “archetypes” of lawyers in Thomas L. Schaeffer and Robert F. Cochran, Lawyers, Clients, and Moral Responsibility (1994). Although the authors argue for a friendship model of lawyering in which the lawyer and the client discuss the moral issues raised by the client’s instructions/representation. A more preliminary question, a threshold issue, might be whether or not the attorney will accept a case or agree to represent a particular client. In any event, those who oppose the “hired gun” approach assume that attorneys can and should make moral judgments, a position not shared by many law students. See e.g. discussion of the ethic of “individual relativism and liberalism” that lead students to resist the idea that lawyers can or should provide moral counseling to their clients. Jack L. Sammons, Rank Strangers to Me: Shaffer and Cochran’s Friendship Model of Moral Counseling in the Law Office, 18 U. Ark. Little Rock L. J. 1 ( 1995)
See Anthropology as Cultural Critique, supra note ___ at ____.
 There is a distinction drawn between social and cultural anthropology and between the social organization or structure and culture. By this definition of culture begins as something that is a mental construct but can be expressed through human behavior. Law deals with both the mental constructs (the ideas we have about the way the world is and with actual behavior. Law is both a part of culture and legal rules and legal institutions are influenced by culture. “But life in the law is not lived in a vacuum. It is part of a pervasive world of culture. If law is to work for the people in a society, it must be (and must be seen to be) and extension or reflection of their culture. Therefore we shall have to explore as well what culture is, how it operates and through what instrumentalities.” Bruner and Amsterdam at ___.
 I have noted in a variety of articles and context my opposition to the idea that there are “alternative realities” or the argument that these realities are equally valid. One can see something similar in the embrace of students “intentionality”, which has been called “subjective realism” by some social theorists. “The phenomenologist appears to be putting forward what we would argue is an extreme form of subjective idealism” Hegemony is not the elevation of one version of reality over others that are equally valid, it is the concealment of a reality in which some people are powerful and privileged and others are subordinated and oppressed.
 Ethel Lawrence v. Ingham County Health Department Family Planning/Pre-Natal Clinic et al, 408 N. W.2d 461 ( 1987)
 Paulette Childress White, Getting the Facts of Life In Memory of Kin: Stories About Family by Black Writers, ed. Mary Helen Washington (1989)
 Whether the government has any obligation to the poor is uncertain at this time. See New York Times story on food stamps and complex application process that prevents the poor from getting food stamps. Friday August 11, 2000
 Marriage is an affirnal kinship tie and is often characterized as a contractual relationship although it is part of the complex of kinship relationships.
 In some societies, the economic value of marriage is recognized with rules on bride price, dowry or groom service. But kinship ties are made more binding by the material obligations that inhere in them. See e.g. the discussion of “guanxi” as a method of establishing reciprocal obligation in China. .
 William Edwin Van Brunt v. Robert Rauschenberg, 799 F. Supp 1467 (S. D. NY 1992)
 In the Matter of the Estate of Steffes, Mary Lou Brooks v. Terry Steffes, 290 N.W.2d 697 (1980)
 Continuity and Change: Partnership Formation Under the Common Law, __ Vill. L. Rev. ____ (1989)
 Butler v. The State, 54 Tex. Crim. 42; 111 S.W. 146 (1908)
 The dissenting judge adopted and quoted from the brief prepared by the attorney for the defendant, who in his zealous advocacy on behalf of his client, whom he denominated “an ignorant negro” pointed out what should have been self evident to anyone living in the segregated South. “Of course the negro did not know what a partnership was, and had he known it, he would have been loath in a court of justice to claim partnership with a white man; nor did it occur to Dillingham that his contract with a negro constituted them partners. Dillingham would doubtless have scorned such a relationship. “ Id. at ___
 See Deborah W. Post, Continuity and Change: Partnership Formation Under the Common Law 32 Vill. L. Rev. 987 (1987).
 In the Matter of Baby “M”, 217 N.J. Super. 313, 525 A.2d 1128 (1987), rev’d 109 N.J. 396, 537 A.2d 1227 (1988). We moved Baby “M” to the chapter on defenses which begins with a discussion of public policy.
 H.J. Coolidge v. Pua’aiki and Kea, 3 Haw. Rep. 810 (1877)
 Breach of contract ( by workers) was criminalized in the early twentieth century by the Maine legislature. The laborers in Maine were immigrants who were lured to jobs in logging camps but who left before they completed the full term of their employment contracts. Is evicting poor people from shelters unless they agree to work the equivalent of forced labor? We can try and draw fine distinctions about the relevant coerciveness of either policy but in each case it is the state that brings it power to bear on the unfortunate or hapless laborer.
 United Steelworkers of America, Local 1330 v. United States Steel, 492 F. Supp. 1 (1980); Abbington v. Dayton Malleable, Inc., 561 F. Supp. 1290 (1983)