CORNELL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES THE MANY DIMENSIONS OF PRIVATE LAW Commentary on Stephen Waddams, Dimensions of Private Law: Categories and concepts in legal R easoning Robert a. hillman Cornell law School Myron taylor hall Ithaca. NY14853-4901 Cornell law School Research Paper No. 04-020 This paper can be downloaded without charge from The Social Science Research Network Electronic Paper Collection http://ssrn.com/abstract=589342
CORNELL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES THE MANY DIMENSIONS OF PRIVATE LAW Commentary on Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Legal Reasoning Robert A. Hillman Cornell Law School Myron Taylor Hall Ithaca, NY 14853-4901 Cornell Law School Research Paper No. 04-020 This paper can be downloaded without charge from: The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=589342
THE MANY DIMENSIONS OF PRIVATE LAW Commentary on Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Legal reasonin Robert a. hillman Professor Stephen Waddams' new book emphasizes the many dimensions of private law and seeks to prove the inadequacy of simple explanations or categorizations of this law Waddams distrusts the divisions between public and private law, between property and obligations, and within obligations, between the concepts of contract, unjust enrichment, and wrongdoing. He believes, for example, that within the law of obligations, judges often apply concepts"concurrently and cumulatively to resolve issues, and that no single concept dominates. As a result, it is a mistake and misleading in many cases to label one case contract and another tort, for example, as if the former case solely concerns enforcing agreements, and the latter only wrongdoing. Consistent with this thesis, Waddams also explains that legal principles and policy perspectives generally complement each other, and that neither alone usually serves as the paramount reason for a decision Edwin h woodruff professor of law cornell law school thanks to Kevin clermont for comments jeff Rachlinski for suggestions and Emily Paavola and April Anderson for able research assistance [It has not been possible to explain Anglo-American private law in terms of any single concept, nor has any map, scheme, or diagram proved satisfactory in which the concepts are separated from each other, as on a two- dimensional plane. Dimensions of Private Law 226(2003). See also id at Vi. 3 Id at 225 see also id at 2 Id.at191.205
THE MANY DIMENSIONS OF PRIVATE LAW Commentary on Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Legal Reasoning Robert A. Hillman* Professor Stephen Waddams’ new book emphasizes the many dimensions of private law and seeks to prove the inadequacy of simple explanations or categorizations of this law.1 Waddams distrusts the divisions between public and private law, between property and obligations, and within obligations, between the concepts of contract, unjust enrichment, and wrongdoing.2 He believes, for example, that within the law of obligations, judges often apply concepts “concurrently and cumulatively” to resolve issues, and that no single concept dominates.3 As a result, it is a mistake and misleading in many cases to label one case contract and another tort, for example, as if the former case solely concerns enforcing agreements, and the latter only wrongdoing. Consistent with this thesis, Waddams also explains that legal principles and policy perspectives generally complement each other, and that neither alone usually serves as the paramount reason for a decision.4 * Edwin H. Woodruff Professor of Law, Cornell Law School. Thanks to Kevin Clermont for comments, Jeff Rachlinski for suggestions and Emily Paavola and April Anderson for able research assistance. 1 "[I]t has not been possible to explain Anglo-American private law in terms of any single concept, nor has any map, scheme, or diagram proved satisfactory in which the concepts are separated from each other, as on a twodimensional plane." Dimensions of Private Law 226 (2003). See also id. at vi. 2 Id. 3 Id.at 225; see also id. at 2. 4 Id. at 191, 205
Waddams sets forth many reasons for what he refers to as the failure of "mapping"of private law. For example, he points out that, as circumstances change, judges must make decisions outside of existing frameworks. Further, Waddams explains that the historical division of courts of law and equity, with equitable concepts"cut[ing] across legal categories, "7 contributes to the laws conceptual disunity. In addition, he sees that courts exercise judgment in selecting relevant facts, that"[n]o map or scheme could possibly classify all imaginable facts, and that facts influence the formulation of rules In light of these and other reasons waddams believes efforts to simplify and clarify private law by categorizing or mapping the law generally backfire, only"distort[ing] an understanding " of the law Dimensions of private Lan is an excellent book. Waddams selects interesting and important examples from a wide array of legal decisions, helpfully collects them under chapter headings such as economic harms, physical harms, reliance, and so on, usefully points out the panoply of legal concepts and principles constituting the solutions to these issues, and generally convinces the reader of the many dimensions of private law. I confess that I am not a disinterested observer of Waddams'thesis, having weighed in myself on the combination of legal principles and theories that constitute contract law. I concluded that t]he various norms of contract law reflect the major social, economic, and institutional forces of a pluralistic societ TT]here is no consensus on what is to be mapped(facts, cases, issues, rules, reasons, categories, or concepts), on what is to be located on the map when drawn, or on whether the map is governed by the shape of the terrain, or vice versa. " Id. at 3 6 Id. at 13
2 Waddams sets forth many reasons for what he refers to as the failure of "mapping" of private law.5 For example, he points out that, as circumstances change, judges must make decisions outside of existing frameworks.6 Further, Waddams explains that the historical division of courts of law and equity, with equitable concepts “cut[ing] across legal categories,”7 contributes to the law's conceptual disunity. In addition, he sees that courts exercise judgment in selecting relevant facts, that "[n]o map or scheme could possibly classify all imaginable facts," and that facts influence the formulation of rules.8 In light of these and other reasons, Waddams believes efforts to simplify and clarify private law by categorizing or mapping the law generally backfire, only “distort[ing] an understanding” of the law.9 Dimensions of Private Law is an excellent book. Waddams selects interesting and important examples from a wide array of legal decisions, helpfully collects them under chapter headings such as economic harms, physical harms, reliance, and so on, usefully points out the panoply of legal concepts and principles constituting the solutions to these issues, and generally convinces the reader of the many dimensions of private law. I confess that I am not a disinterested observer of Waddams’ thesis, having weighed in myself on the combination of legal principles and theories that constitute contract law. I concluded that “[t]he various norms of contract law reflect the major social, economic, and institutional forces of a pluralistic society. 5 "[T]here is no consensus on what is to be mapped (facts, cases, issues, rules, reasons, categories, or concepts), on what is to be located on the map when drawn, or on whether the map is governed by the shape of the terrain, or vice versa." Id. at 3. 6 Id. at 13. 7 Id. 8 Id. at 14. 9 Id. at 226
Not only do these norms often clash, but they are themselves frequently internally inconsistent. It is no wonder that I am sympathetic to Waddams' thesis and see the deep value in a realistic description of the terrain of private law One of the many impressive things about Dimensions of Private Law is its scope and its ariety of insights. In the various chapters, not only does waddams illustrate how various concepts figure in decisions involving the diverse issues of private law, but he offers many other illuminating observations as well. For example, the book includes thoughtful discussions of how the factual background of cases help clarify the perceptions and reasons of judges; the disparate legal responses to contract and other wrongs; the difference between wrongdoing that is blameworthy and wrongdoing that entitles the victim to compensation; and how equity blurs the distinction between obligation and property through vehicles such as trusts Of course, in a book of the breadth of Dimensions of private Law, it would be unusual if a reader agreed with all of Waddams'assertions. For example, he appears to lump promissory estoppel with other forms of estoppel in his claim that estoppel is dependent on other concepts Robert A Hillman, The Richness of Contract Law 268(1997)(hereinafter Hillman, Richness) n Dimensions of Private Law at 38 For example, breaching parties generally cannot be enjoined or forced to return their ill otten gains 13d.at106
3 Not only do these norms often clash, but they are themselves frequently internally inconsistent.”10 It is no wonder that I am sympathetic to Waddams’ thesis and see the deep value in a realistic description of the terrain of private law. One of the many impressive things about Dimensions of Private Law is its scope and its variety of insights. In the various chapters, not only does Waddams illustrate how various concepts figure in decisions involving the diverse issues of private law, but he offers many other illuminating observations as well. For example, the book includes thoughtful discussions of how the factual background of cases help clarify the perceptions and reasons of judges;11 the disparate legal responses to contract and other wrongs;12 the difference between wrongdoing that is blameworthy and wrongdoing that entitles the victim to compensation;13 and how equity blurs the distinction between obligation and property through vehicles such as trusts.14 Of course, in a book of the breadth of Dimensions of Private Law, it would be unusual if a reader agreed with all of Waddams’ assertions. For example, he appears to lump promissory estoppel with other forms of estoppel in his claim that estoppel is dependent on other concepts 10 Robert A. Hillman, The Richness of Contract Law 268 (1997) (hereinafter Hillman, Richness). 11 Dimensions of Private Law at 38. 12 For example, breaching parties generally cannot be enjoined or forced to return their ill-gotten gains. See id. at 143. 13 Id. at 106. 14 Id. at 186
ecause it prevents a party from making certain assertions. The inference is that promissory estoppel means only that a promisor cannot claim the absence of consideration to support a promise. However, at least in the U.S., promissory estoppel now constitutes a separate and relatively distinct cause of action for detrimental reliance induced by a promise, and I think properly so. After all, positioning promissory estoppel as a separate theory allows courts to avoid distorting the doctrine of consideration by finding an enforceable bargain when the real reason for the decision is detrimental reliance on a promise. apparently for the sake of consistency Waddams seems to resist this characterization of promissory estoppel. 6 In fact, Waddams himself occasionally strays from his theme of the interrelatedness of concepts and the difficulties of categorization. For example, in his discussion of strict tort liability, Waddams describes compensation for harm as the principal justification for the theory and downplays public safety as an important factor. Waddams'main explanation is that other law creates incentives for manufacturers to produce safe products, as if laws cannot share policy goals. Even if Waddams' explanation is true, it contradicts his overall thesis Id. at 69 "The establishment of a fourth category of obligations, or consignment of the reliance cases to a separate ohiscellaneous'category, would scarcely resolve the difficulties because reliance has not been so much separate om the concepts of property, contract, tort, and unjust enrichment, as intimately linked with all of them. " Id at 79 "The purpose of imposing liability on the manufacturer.. has plainly been not primarily to deter or modify the manufacturers behavior, but to require it to compensate the injured plaintiff. Id at 10
4 because it “prevents a party from making certain assertions.”15 The inference is that promissory estoppel means only that a promisor cannot claim the absence of consideration to support a promise. However, at least in the U.S., promissory estoppel now constitutes a separate and relatively distinct cause of action for detrimental reliance induced by a promise, and I think properly so. After all, positioning promissory estoppel as a separate theory allows courts to avoid distorting the doctrine of consideration by finding an enforceable bargain when the real reason for the decision is detrimental reliance on a promise. Apparently for the sake of consistency, Waddams seems to resist this characterization of promissory estoppel.16 In fact, Waddams himself occasionally strays from his theme of the interrelatedness of concepts and the difficulties of categorization. For example, in his discussion of strict tort liability, Waddams describes compensation for harm as the principal justification for the theory and downplays public safety as an important factor.17 Waddams' main explanation is that other law creates incentives for manufacturers to produce safe products, as if laws cannot share policy goals.18 Even if Waddams' explanation is true, it contradicts his overall thesis. 15 Id. at 69. 16 “The establishment of a fourth category of obligations, or consignment of the reliance cases to a separate ‘miscellaneous’ category, would scarcely resolve the difficulties because reliance has not been so much separate from the concepts of property, contract, tort, and unjust enrichment, as intimately linked with all of them.” Id. at 79. 17 “The purpose of imposing liability on the manufacturer … has plainly been not primarily to deter or modify the manufacturer’s behavior, but to require it to compensate the injured plaintiff.” Id. at 100. 18 Id