Contracts Hornbooks
Contracts hornbooks, also known as Contract Law hornbooks, with their publication dates, are appearing on the shelves of law libraries across the nation, to serve as vital resources for scholars researching contract law. These books are seminal pieces of literature within the Contract Law discipline. In addition to being hallmarks of scholarship and analysis on the subject of contracts, these contract hornbooks are phenomenon in terms of contract education, and are perhaps the most significant contract educational books in American history, up to this modern day. We will investigate how Contracts hornbooks have become so important.
Contracts hornbooks are the world’s first ever law textbooks… They aren’t even law textbooks about Contract Law. That’s because there weren’t even any law schools in the colonial period of American history when the first Contracts hornbooks were written. Instead, Contracts hornbooks were largely published in the 18th Century, prior to the conception of American legal education, dating back to 1780… . Only 3 years after the first Contracts hornbook was published, in 1783, did the first American law schools, in the form of private legal apprenticeships , come about. It was during this period that contracts hornbooks became instrumental to students studying contracts law and contract law. They ultimately became required textbooks by the 3rd year of legal education in law schools in 1877… They continue to be required textbooks in law schools across the country to present day.
Contracts hornbooks are also responsible for the most important legal documents in American history: American case law. That’s right, American case law – that’s right, contracts hornbooks fundamentally changed the way American lawyers wrote legal documents – including the most important legal documents hammering out the birth of American democracy. From the Declaration of Independence, the Constitution, to the Bill of Rights, contracts hornbooks became the fundamental writings informing America’s founding documents… And these documents are responsible for thousands of case law, from which the large majority of American case law is based.
Contracts hornbooks are also responsible for the legal documents shaping American business practices, from the 19th Century to today. It’s certainly true that major American contracts law was based off of multiple contracts hornbooks. From U.C.C. (Uniform Commercial Code) to the Restatement (Second), many of America’s largest contracts law doctrines were drafted into American case law through contracts hornbooks.
Topics Covered by Contracts Hornbooks
Contracts hornbooks key topics are offer and acceptance, consideration, and performance. They also cover the Statute of Frauds and enforcement in general.
Contracts hornbooks typically contain an overview of offer and acceptance and it is not unusual for textbooks to include a chart showing when an offer has been made. It is important to understand what an offer is and when it is made before drafting or interpreting a contract, because that is when the parties first start to have express legal obligations to each other.
Also, consideration comes up at the contract formation stage, so expectations set in a contracts hornbook, such as an outline emphasizing that there must be an agreement and valuable consideration and a meeting of the minds, often help the student. It is integral to the formation of any contract.
Performance is related to the concept of "time is of the essence" which is sometimes included in a contracts hornbook.
The Statute of Frauds is also discussed. Most contracts will not be enforceable because they do not meet the Statute of Frauds.
Advantages of Contracts Hornbooks
One of the many advantages of using a hornbook for the study of contract law is its content. A hornbook is designed to summarize all the different topics in a legal practice area, and contract law is no exception. The result is straightforward material organized into subject headings and chapter outlines resulting in a clear path towards your goals.
In addition to being organized and structured, the material found in a hornbook is layman-friendly. A hornbook should explain legal concepts in a straightforward manner without getting into obscure details or the latest court rulings. Best of all, there are usually lesser used hornbooks that supplement the primary hornbooks by zeroing in on specific elements of contract law.
Perhaps the best aspect of a hornbook is that it covers a lot of information from chapter to chapter. Not only will you have what you need to know for your final exam and bar review, but you will also have a handy reference guide to help you with your post-graduation career. For example, if you are gearing up to open your own law firm, a hornbook is a good place to go to look up contract terminology or get updated on forms and formats.
Best of all, a hornbook can be used for law school courses other than contracts. Given the thorough nature of a hornbook, it is the perfect place to go for general legal concepts and terminology. One great benefit of a hornbook is that the information is easy to find. You can look up the specific area you need help on at any time and find all the necessary information.
Overview of Hornbooks versus Casebooks
The Difference Between Hornbooks and Casebooks
While it’s true that using a casebook to teach a course makes it difficult to cover certain topics, it is equally true that covering certain topics is often difficult in the context of a casebook. It matters because there are some areas in which a topic is better introduced with a more textbook style discussion, rather than having the discussion happen implicitly through a series of cases. My Contracts casebook discusses assignment in the context of a sequence of cases, sprinkled with the occasional "note" discussing relevant Restatement provisions. It recognizes the Restatement as a source of law, but does not attempt to use the Restatement as a way of organizing the material. This makes it a fundamentally case-oriented, rather than substance-oriented book.
Which brings me to the black hole of hornbooks as an additional source. It’s not that the typical hornbook on Contracts covers a lot of ground as it is. There are a series of three hornbooks on different aspects of Contract Law that I think come the closest to actually covering Contracts. The problem with describing the difference between a casebook and a hornbook is this: most contracts casebooks put the material in context in a way that a hornbook can’t . Even good hornbooks are not as easy to learn as teaching materials should be.
The result of this is that students interested in Contracts as a subject are better off owning both a Contracts casebook and a Contracts hornbook. If you are primarily interested in learning the subject of Contracts, a good hornbook will give you a good sense of what the subject is about and provide you with a good overview; perhaps better than a couple of good articles, if you are generous enough in your definition of "good." But as a replacement for a Contracts casebook, that same hornbook is a failure-not because a Contracts hornbook (other than Farber) is bad, but because no hornbook can be as good at putting the subject of contracts into its appropriate context.
The takeaway here? If you are a Contracts professor, you (or someone else) should definitely write a primer on Contracts for teaching purposes. At the end of the day, the Contracts casebook is really just too far afield to help students who want to understand the subject of Contracts. Which does not mean that it’s not useful, only that it’s not sufficient.
Recommended Contracts Hornbooks
Over the years, a number of contracts hornbooks have become classics that law students reference as important background reading or lawyers use as treatises for in-depth research in contracts. The following are some of the most recommended contracts hornbooks used by contract law professors and practitioners to teach and research contract law.
- Robert Hillman, the Commercial & Financial Negotiation of Complex Transactions, Aspen Publishers (2009). Hillman is the Distinguished Professor of Business Law and the William F. Mann Lecturer at the University of Washington School of Law and is the former associate dean for research and faculty development. He has published extensively on consumer contracts and remedies. His latest article is "The Citability of Empirical Research: Why Courts Should Not Cite Empirical Studies," to be published in the University of California Davis Law Review. His hornbook provides an overview of the basic elements of contract law, including interpretation and performance and breach, with an emphasis on how the underlying principles apply in practice.
- Brian A. Blum & Amy C. Bushaw, Penguin Law, Contracts in a Nutshell (8th ed. 2013). Blum is the H. Tim Hadden Professor of Law at the George Mason University School of Law and has written his share of casebooks in the Contracts, Secured transactions and foundational areas like legal writing. Bushaw is a lecturer at the George Mason University School of Law and has worked extensively as a private practitioner doing intellectual property work. Her hallmark is a Grey’s Anatomy of contracts where every court case is turned into a series of interactive flow charts that help students to visualize the law and the flow of analysis through a contractual dispute. This nutshell goes through the basics of contract law and a thorough chapter on material breach, one of the fluffiest areas of contract law that often goes beyond the bounds of legality and into matters of morality.
- Randy E. Barnett, Understanding Contracts (3rd ed. 2017) Aspen Publishers. Barnett is the Carmack Waterhouse Professor of Legal Theory at the George Mason University Antonin Scalia Law School and the Department of Economics. He is widely published in the area of contracts and constitutional contracts theory and advocates strongly for the common law of contracts. In this third edition, Barnett offers a supplemental website that contains some of the supplemental material used in the first episode of his contracts class at George Mason, and the website will be updated in the future with additional contract materials such as short videos of class lectures, animated clips, and notes on the cases.
- E. Scott Fruehwald, Olin L. Browder, and Michael W. Gordon, Contracts (4th ed. 2013). Browder, Fruehalw and Gordon are all Professors at the Northern Kentucky University Chase College of Law; Browder specializes in contract remedies, Fruehwald specializes in complex litigation, civil procedure and consumer protection, and Gordon specializes in the Uniform Commercial Code (UCC) and secured transactions. Their contracts hornbook adopts a free market economic rationale and focuses heavily on the economic reasons behind contract law and case law, focusing heavily on UCC contracts and issues unique to contract law such as option contracts and partial performance.
- Stephen M. Bainbridge and Robert A. Hillman, Trade Secret Law (6th ed. 2013). Stephen Bainbridge is an author who has written his share of business law texts on the intersection between corporate law and contract law as well as agency law. He focuses on accounting, finance, and corporations and is a professor at the UCLA School of Law. Hillman was formerly a professor at the University of North Carolina School of Law and specializes in commercial paper, payment systems, antitrust, and negotiation. This hornbook’s best feature is the numerous real-world examples, such as the Wal-Mart claims against Visa, and its good overview of trade secret law’s role in contract law.
How Best to Use a Contracts Hornbook
Once you have a Contracts hornbook in hand, how are you going to use it? There are a number of strategies for doing so effectively.
- Read selected hornbook extracts late in the semester, after reading assigned casebook material on a topic. The extracts address the same topics as the assigned casebook materials, and can be used both for better understanding of the topic and for contrast with the represented case law and explanations in the assigned casebook. Remember that the extract may refer to cases not included in the casebook, which broadens your understanding of the caselaw you have read. The extracts will also feature scholarly observations on the topic (see next item) that will help deepen and clarify your understanding.
- Read the relevant extracts before beginning the assigned casebook material on a topic, to give you a context for the material and hopefully help you learn it more quickly and thoroughly.
- Use the extracts to supplement the course materials when your professor seems to be giving more importance to a subtopic than the course source material indicates he or she should be. For example, your professor may spend a whole class discussing different forms of Consideration, while the course material spends only a paragraph or two on the issue. Reading the extracts on the topic will let you see how the issue should be viewed relative to the material in the course source .
- Use the extracts, especially the notes and comments sections, for alternative views on controversial topics. Most professors are making choices about how they present the material, and can only include a small number of the possible perspectives, so there are always arguments and theories being omitted from the class lectures. Checking the extracts on a topic where your professor is taking a controversial position will allow you to do what good lawyers do: create counterarguments to your adversary’s position. It will also deepen your understanding of the controversy.
- Use the extracts to show your professor where he or she does not include a topic that you think is important enough to be tested. Also use the extracts to show the professor why he or she should at least briefly discuss a new case that is not mentioned by the casebook or the professor. Be careful in these instances – sometimes a judicial opinion’s worth is its ability to illustrate a point made by a reputable source. It may not teach you anything new, but it may still be there for a valid reason. You’ll have to decide if your opinion of a particular judicial opinion is valid, or based on your desire to make an argument to your professor.
- Use the extracts of heavily stressed topics to create outlines, which will then function as a quick study guide.