Article by Colin P. Marks
It is an honor to be invited to write on Professor Hillman’s iconic article on contract lore. Professor Hillman’s original article, and his follow-up, asks contracts scholars and experts (collectively “contracts people”) to question the very foundations of what we seemingly all accept as true. In what he labels “contract lore,” contracts people are perpetuating myths about the true state of contract law and the realities of what really happens. To explain this, Professor Hillman hypothesizes that contract lore may actually represent the aspirations of contracts people as to what the law should be and that our persistent recitation of this lore can be explained as a form of cognitive dissonance. In More Contract Lore, Professor Hillman admits that there may be other explanations, but cognitive dissonance remains the primary explanation.
Respectfully, I disagree with Professor Hillman that all of the examples he gives are “lore,” or at least I think that the term is scalable. Some of the instances, such as the importance of the intent of the parties, I would label as more truth than myth, but other instances, such as expectation damages putting the aggrieved party in the position they would have been absent a breach I think are unquestionably myths. Similarly, I find that these statements of lore really reflect the ambitions of what the law should be in the mind of contracts people not completely convincing, but also scalable. Interestingly, these appear to have an inverse relationship with the lore scale—thus the lore I find to be the most aspirational, the importance of the intent of the parties, is also the least lore-like, and vice versa with regard to expectation damages. As I do not find all of the examples to fit neatly into lore or aspirations, I find cognitive dissonance unsatisfying as an explanation for the persistence of this lore, but that does not mean I disagree with the observations about this telling us something about law reform. Indeed, I think Professor Hillman has provided us with a useful device by which to judge whether the law is in need of reform. A statement of law that is high on the lore scale, but low on the aspiration scale, should cause all contracts people to question the value of the statement, but I don’t think cognitive dissonance is a satisfactory explanation for all of the lore Professor Hillman lists.
Instead, I propose that what Professor Hillman labels as lore is better thought of as a series of heuristic starting points. I do not label them heuristics in and of themselves as they do not represent shortcuts to the ultimate answer. But as I explain, all of the areas that Professor Hillman identifies as lore are actually quite nuanced, sometimes filled with exceptions, but other times they simply represent the first step in a long inquiry. Heuristics as a teaching device has been recognized in law and other disciplines as an effective tool in not only conveying information, but also prodding the student to conduct further inquiry. Thus, the persistence of lore may reflect nothing more than the need to have a starting point for a legal analysis, be it by a student, lawyer, or judge.
About the Author
Colin P. Marks. Ernest W. Clemens Professor of Law, St. Mary’s University School of Law.
Citation
94 Tul. L. Rev. 925 (2020)