39 Tort Trial & Ins. Prac. L. J. 869 (2004)
by Joel Levin

Personal injury law – using that term in the way that most in the profession do, to include auto accidents, medical malpractice cases, toxic exposure cases, premise liability matters, and other related injuries to one’s person – is dominated by those who spend their time not having ever been in large, prestigious firms but rather are in small personal injury firms or in small to moderate insurance defense firms. The practice is driven by facts and only to a lesser extent by legal doctrine. The day to day business of tort law involves client contacts, numbing paper discovery and motion practice, rote depositions, and encounters with over-worked and often hostile judges, with lawyers laboring to bring the matter to a jury of someone’s peers, peers who, if they would have arrived individually at the lawyer’s door at night would cause a call to the local police.

This is a world where law professors rarely visit, except as voyeuristic tourists gawking at occult rituals1. It is a Runyanesque world of struggling solo practitioners, squirly private investigators, avaricious expert witnesses, pontificating magistrates, preoccupied and ambitious judges, courthouses filled with a Dickensian menagerie of low-end (and not so low-end) government officials exhibiting various degrees of sloth, myopia, partiality, vindictiveness and partisanship, and of clients whose court case trumps their marriage as their single most important life cycle event. Thus, the particular criticism of foreignness, akin to unmusical outsiders watching the veteran but arcane jazz band, while traditional and well-worn, has hardly been met in the academy. The reason for noticing all this is that before looking with more detail to Professor Shapo’s work, there is some doubt that such work could accurately give any help to the practicing professional, except reiterating doctrine. Moreover, the doctrine necessarily would be elliptical and of limited value, covering too many jurisdictions and too many areas. The question then is this: is there some special expertise that might be brought to bear on tort law and culture by the traditional writers in the legal academy?

The answer is undoubtedly yes. Tort law is not a naturally occurring object, like rocks and stars. It is a product of thought, and controversial thought at that. Thus, the tort wars. Complex economic, demographic, sociological, political, and other such forces are often at work in changing our perceptions, our psychology, and our expectations. Tort law is not just about what judges say. In fact, it is often just the opposite. Clients tell compelling (if often incomplete, inconsistent, incoherent, and improbable) stories to creative lawyers, who argue with various degrees of persuasion to eclectic juries under shifting instructions (sometimes obeyed and sometimes not) from the court, all of which, taken in large numbers, can cause sea changes in legal doctrine.


1That is not to say that there are not superb chroniclers of legal behavior, often using sophisticated empirical methods drawn from sociology, anthropology and economics. Certainly, that list is long (although nowhere long enough) and would need to start with the work of Marc Galanter and much of what was done under his supervision and by his colleagues at the University of Wisconsin Law School. See, for example, his work with THOMAS PALAY, TOURNAMENT OF LAWYERS: TRANSFORMATION OF THE BIG LAW FIRM (ed.1991), where use of the economist’s statistical methodology such as kinked linear functions and chi square analysis is employed. See, particularly, Chapter 5. See, also, his MEGA-LAW AND MEGA-LAWYERING IN THE CONTEMPORARY UNITED STATES (ed. 1983). Other good work in the field, to pick just one representative if excellent example, would be that of Robert Mnookin, in a number of his works, often with others, including BEYOND WINNING: NEGOTIATING TO CREATIVE VALUE IN DEALS AND DISPUTES (2001), particularly Chapter 6 on psychological barriers or with Eleanor Maccoby DIVIDING THE CHILD: SOCIAL AND LEGAL FORMS OF CUSTODY (1992), particularly the economic analysis in Chapters 6 and 10. The problem is not just that there is not some empirical work, albeit often scattered and without reference to other work, that is, lacking a coherent literature. It is that the middle-level approach of the legal academic, that is, the worship of process values in appellate cases, seems not only to be free-floating without roots elsewhere, but quixotic in its claims of usefulness beyond restating legal doctrine. The lack of theory (that is, if there is to be a hierarchy of practice and empirical work at the basic level, then process value work in the middle, and theory at the other end) is another matter. Legal theory in general, while a thriving industry throughout the world, is marginal to the point of disappearing in the American academy. The best of it, even by Americans, is often the work of expatriots. See, for example, the Oxonian work of Ronald Dworkin, including A MATTER OF PRINCIPLE (ed. 1985) and LAW’S EMPIRE (ed. 1986).

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by Joel Levin

The dreary battle surrounding contract continues undeterred, uneducated, unrepentant, refusing experience and unflinchingly dull. The question continually posed: what is contract? Is the reality identical to that well-known historical metaphor: a meeting of the minds? (Where, of course, is an issue. In what space or room does the meeting take place?) But then what should we say about the dropping of coins into a vending machine with the result of a soft-drink in return, or how should we judge the mental interaction between a mute customer stacking groceries on the conveyor belt and the impassively glum cashier dropping them, once counted, into plastic bags? What is our contract analysis of this scene? Does it mean that the circumstances of mutual assent have occurred, and if they have, when and how, and about what?

Maybe being a contract or having a contract means no more than there are bilateral exchanged promises mutually relied upon, or at least reasonably relied upon? Let us put aside the problem of what are promises and how often we make them — I ask the grocery clerk if the price on the juice can is correct and he responds “I guess,” and then takes my money; where is there any traditional, ordinary, comprehensible, reasonable instance of a promise? Let us further put aside the problem of how to treat the many promises we fail to enforce, consider, or label “contract” — New Year’s resolutions, proclamations of eternal love, protestations that one will never again repeat the latest offending behavior, agreements to retain or save one’s place in a line or queue — and even why should we enforce promises. Let us simply ask why should we consider a promise plus something (mysterious) to be a contract. Certainly, promises to make promises, promises to donate gifts, or promises to improve oneself do not, to our ordinary way of thinking, create contractual action. More problematic, what type of ghostly mental entity is a promise, and how do we recognize it? Distinguishing promises from predictions, bragging, affirmations, vows, performative speech acts, forecasts, or poorly framed descriptive statements is part of this problem, with the speakers’ and listeners’ intention and understanding often being vague, ambiguous or inchoate — even if one had hard-and-fast categories. However, the deeper problem is semantic: how do contractual intentions expressed through (putative) promises become understood, and what are the behavioral, mental, and neural nexuses which are involved?

Lawyers, business persons, economists and ordinary bargainers, of course, routinely ignore the definitional problems inherent in the concept of contract and just get directly into the terms and performance of the deals. In fact, with the aid of political theorists and free enterprise celebrants, contract is generally applauded without analysis and absent definition. If such celebrants are asked whether all freely (usually freedom meaning an absence of unproblematic coercion, such as having a gun to one’s head: that is, robbery and shot-gun marriages are certainly banned, but most contracts formed as a result of economic coercion are allowed) given, exchanged promises between adults should be enforced, their affirmants are embarrassed when the introduction of blackmail, usury, or indentured servitude contracts are mentioned. Two strategies become available at this point. One could simply take the view that definition is irrelevant, that one proverbially knows a contract when one sees it. The actor playing Shylock never entered into an actual contract, while those in the audience who purchased tickets actually did. No one is truly confused, no real problems exist, and formulating a precise definition is an exercise as useless here as in the cases, of say, personhood, maturity, or obscenity.

The answer to this protest is that confusion does occur: in fact, it reigns. What do we say of form sales contracts unread by purchasers, or what of insurance contracts with terms and conditions mailed months after the initial premium is paid, or what of surrogate motherhood arrangements or pillow-talk palimony agreements? What of contracts based on mistakes, misapprehension, minority, imbecility or impossibility? What of perhaps the majority of personal service contracts: performance begins before an agreement to perform is completed, or despite the fact that no agreement ever occurs. Someone begins rehabilitation on your house with only a vague or incomplete agreement as to compensation for overtime or additional work, how mistakes will be handled, what are the consequences of delay by either party, or whether there should be a retainage and for how much at the work’s completion. What is the agreement? Examples of contract problems are more ready than examples of contract paradigms. (Of course, those concerned with the ethical and legal implications inherent in certain contracts, such as abortion issues in in vitro surrogate contract, free speech issues, palimony or voided pornography sales, would suggest that even contracts which appear paradigmatic are problematic, a suggestion which cuts against the definition avoidance strategy).

The second strategy is to avoid theory, simply count up all those things we believe to be contract and call it a day. In fact, that is the dismal approach taken after sixty years of work by thousands of legal scholars in approving the Second Restatement of Contracts. It begins:

Section 1. Contract defined

A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty.

The definition combines two bad features at the outset: it is promised-based and it is tautological. Contracts are those events which form the class of contract contenders, such contenders being counted as successful if the law treats them as contract, and so enforces them. We are back with Moliere’s learned doctor’s explanation of what it is in opium which puts people to sleep: the virtues dormative, or sleep-producing power. What is invited (contract as virtues dormative) is the same as what is being explained. More directly, why bother to have contract? Why not just say that we should enforce what we enforce?

The deeper problem with using such listings in lieu of a definition is the need for a generative legal grammar to analyze future social situations. The set of potential contracts situations is infinite. It not only includes those times we buy, sell, borrow, lend, mortgage, secure, lease, rent, build, repair, construct, insure, enroll, marry, print, publish, air, broadcast, entrust, ship, send, mail, adopt, franchise, indenture, retain, employ, minister to, advise, audit, doctor, transfer, hire, and appoint through the vehicle of contract. It is that we seem to be able to mix, match, shuffle, and integrate concepts to achieve, or attempt to achieve, our individual life goals, projects, intentions and desires. We need a set of rules and principles that will allow us to handle new situations as they arise, and do so in a manner which is not tardy, ad hoc or without guidance, certainty or rationality.

What I want to suggest here is the following picture of contract: contracts have a mentalistic component and a social component, neither resting implicitly or explicitly on promise or subjective agreement, and both understandable only through the two, at times conflicting, moral justifications of freedom and justice. Further, those things which we label “contracts” are part of a family of public acts, and like a family (to push the metaphor) share family resemblances. We see an individual with fair skin, red hair, and blue eyes, but we do not disqualify this putative Celtic because another feature, perhaps freckles, is missing. We put families and groups together by counting up shared features, without the expectation or necessity of exact congruence. Let us see whether this shared core with fuzzy edges also characterizes contracts.

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29 McGill L. J. (Revue de droit de McGill) 24 (1983)
by Joel Levin*

The central contract in the traditional theory was consideration, a notion typical of other contract concepts in its theoretical untidiness. Consideration can be best understood by seeing the set of reasons behind it. Its absence could vitiate agreements thought to be too unfair to be enforced. Consideration was a spectacular improvement over its predecessor, the seal. With the addition of promissory estoppel, which protects the reliance interest, it is largely successful in achieving its purpose. That is, problems of fraud illegality, mistake and duress aside, most contracts one might believe ought to be enforced do have consideration; most that should not be enforced do not. Why then jettison consideration?

The problem lies in the Byzantine nature of consideration. At one time, perhaps with the first edition of Williston’s Contracts, one could use the traditional contract theory of consideration to understand fairly well what the courts were doing and why. Even then, there were serious problems of fit between the cases of concept. The traditional concept of consideration would not permit promissory estoppel recovery on gratuitous promises, modification of ongoing transactions where one party was performing a pre-existing duty, or enforcement of a promise motivated by the moral consideration of repaying a valuable benefit which had been conferred gratuitously in the past. Yet, the courts were often enforcing such promises in spite of the doctrine of consideration. In trying to develop doctrine that both retains the old concept and incorporates the results of these later cases, consideration has become a patchwork of rules too fragmented to be successful. Fragmentation is fetal in several ways. First, the connection between the cases and the concepts becomes attenuated. Fit in law is like fit in clothing. If the theory needs constantly to be altered, taken in at the waist while making room for a third arm or a second head, eventually it loses its value. It is not a complete failure, it is just not worth the trouble of keeping. Second, continuing fragmentation causes a loss of the predictive value necessary in legal theory. Where rules have exceptions to exceptions to exceptions, one cannot be very certain as to how a particular case, always factually unique, will be categorized. By definition, no central principle organizes a fragmented theory.

However, the most telling failure of patchwork theory lies in its difficulty in complying with the similarity imperative. For example, suppose a contract theory holds that a bilateral contract would arise only if a valid offer were met by a timely acceptance. It subsequently becomes evident in cases of ongoing business relationships that often no offer or acceptance is made for any particular transaction. The theory is changed to allow implied offer and acceptance, or else just to pose the question whether the parties intended that a deal had been struck. The old theory, ex hypothesi, would not consider such transactions to be contracts. A lawyer who once endorsed the old theory but now accepts the change is forced to violate the similarity imperative, at least over time, for like cases are being treated differently than they once were. If this seems a trivial injustice, consider the consequences of a system where the received theory is in constant flux. If one is in doubt as to whether a rule, its exception, or its revision applies, the theory, by being fragmented, is unable to provide guidance. Perhaps ongoing relationships that break down ought to be given only restitutionary protection through unjust enrichment. The theory cannot answer questions of this generality. Only the relatively less important questions are answerable.

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40 Cleveland State L. Rev. 19 (1992)
by Joel Levin

The past three decades have seen an enormous amount of writing by Anglo-American scholars about contract theory. If nothing else, this demonstrates the almost universal perception that there are serious problems with the received theory of contract, the product of giants like Holmes, Williston, Cardozo and Corbin, a theory enshrined in the First Restatement of Contracts. This theoretical activity, instead of creating a new paradigm, has produced divergent theoretical approaches with various bands of scholars striking off in quite different directions, and in the process leaving most judges and lawyers back at the starting point. Contracts scholarship has largely overlooked the advice of Lon Fuller, who began his famous article The Reliance Interest in Contract Damages with the comment that “Nietzsche’s observation, that the most common stupidity consists in forgetting what one is trying to do, retains a discomforting relevance to legal service.

What should we be trying to do when we build a contract theory for the law and for lawyers? Contract law was the product of common law judges and still largely a matter of common law jurisprudence. It provides the concepts and methods used by courts resolving disputes arising from a particular situation – the contract – which is part social, part legal, part psychological and part economic. If the concepts and methods produced by current contract theory fail to explain what courts are doing and provide them with useful tools, the theory underlying the concepts and methods needs reworking.

Legal theory often founders as the result of what appears to be a sound dichotomy: that between a description of what the law is and a prescription as to what the law should be. Descriptive analysis of law ranges from simple (and simple-minded) lists of black letter rules to sophisticated syntheses of various legal concepts and doctrines made clearer and more precise. What is usually ineligible for inclusion in the descriptive realm is any suggestion that things could be different, better, clearer, fairer, and efficient, or more just. That task of inclusion belongs with those who wish to criticize or reform, who want a better system, or more modestly (and, more commonly, in the rush to correct the minute and ignore the pervasive), a better rule.

* * * * *

One purpose of a contract theory is to provide a picture which adequately depicts how contract law, properly applied, works. The claim of such a theory would be that various contract rules could be brought together in such a way that, if individuals properly applying contract law had to justify their efforts, they would or could adopt such a theory. The claim would not be that the theory is the best one possible for contracting generally, best again in terms of fairness, justice, efficiency, etc. Rather, taking note of law’s normative element, the depiction would include the claim that such a contract theory would encompass how one imaginative, knowledgeable, and thorough could construct a general theory of contract which explains the myriad of specific contract rules.

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by Joel Levin*

The statistics are familiar and grim. In Ohio alone, in 2001 there were 2,876,999 children under 18 years old. The percentage of children living in poverty was 16.2%. There were 51,031 maltreatment victims with the number of fatalities equaling 2.8 children/100,000. In 2001, the number of children in foster care was 21,584. The total number of adoptions was 2,230.

It is controversial whether the growth in abuse cases represents a growth in incidents or merely an increasing recognition of harrowing reality. However, actions throughout the court system — whether criminal, juvenile, domestic relations, or in the tort system — are dramatically on the rise. This two-part article attempts to provide some perspective on the legal issues encountered when representing abused children, first looking at the substantive law, then at issues of practice and procedure.

Abuse cases are fraught with legal complications, beginning with the initial question of whom to sue. That said, with virtually no exceptions, tort cases involving abused children almost always are ones of vicarious liability. The actual murderer, torturer or rapist is invariably serving some indefinite, if not nearly long enough, sentence, while the civil suit proceeds against an individual, group, church, school board, or agency who should have been paying attention when the murder, torture or rape was occurring. The plaintiffs plead vicarious liability, often involve government agencies claiming sovereign immunity, and are defended on a panoply of defenses ranging from intervening criminal act to sovereign immunity to failure of notice.

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by Joel Levin*

Recent European Courts of Justice and European Parliaments have held that even minor corporal punishment to children by their own parents can constitute an indefensible deprivation of human and civil rights, based on evolving standards of international and civil rights law. (Although, that said, attitudes remain ambivalent, if not schizophrenic. The British Parliament in July 2004 began the process of passing compromise legislation that would allow only corporal punishment without any physical or mental harm, perhaps virtual paddling or cyber swiping). Ohio cases described here and in the previous article can hardly approach such aggressive and global protection of our children, but they do suggest there to be a rapidly evolving standard protecting the last humans given full civil rights by our society. Certainly, after researching the law, figuring out how to overcome potential defenses, finding insurance, establishing proper guardianship, cross examining derelict agents of the defendants, and proving liability sufficient to provide a settlement or jury award, it is hard to imagine a more rewarding experience in the practice of law than being able to set aside money to help gain some small measure of happiness for an abused child.

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