Saturday, August 18, 2018

Contracts Book Notes

Professor Steven Burton

(“PCL”) Burton and Drahozal, Principles of Contract Law (West Academic, 5th
ed., 2018)

5 General principles that the PCL casebook will treat the law of contracts.
1. The Autonomy Principle
a. The law empowers people to make and receive enforceable promises when they
communicate decisions to act or refrain from acting in some definite way in the
future, subject to other principles.
2. The Security Principle
a. The law requires each party to a contract formation or performance to do it's
part to respect the other party’s reasonable expectations and reliance.
3. The Justification Principle
a. The law enforces promises when prima facie there are sufficient legal reasons for
a court to enforce the promise.
4. The Fairness Principle
a. The law refrains from enforcing promises when the prima facie justification for
enforcing the promise is overridden by considerations of fairness.
5. The Compensation Principle
a. The law enforces promises mainly by compensating nonbreaching parties for
unavoidable, foreseeable, and reasonably certain harms caused by a breach.

Chapter 1: The Autonomy and Security Principles

 The law empowers people to make and receive enforceable promises when they
communicate decisions to act or refrain from acting in some definite way in the future,
subject to other principles.
 The law requires each party to a contract formation or performance to do it's part to
respect the other party’s reasonable expectations and reliance.
 Enforceable promises are conventionally called contracts.
 The law of contracts defines the conditions under which people have the legal power to
make and receive enforceable promises, together with many of the consequences of
having used that power.
 Agreements in which there is a promise on at least one side—promissory agreements.
 The existence of such a promissory agreement is the first condition for a promise to be
legally enforceable (assuming that the promisor had the legal capacity to make a
contract.
o Ex. Of promise: a borrower promises to repay a loan; a tenant promises not to
bring pets onto the premises.
 Contract law governs transactions in the unregulated sector of the economy.

Promises

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 To promise is to say something which creates an obligation for the promisor. In order
that words should have this kind of effect, rules must exist providing that if words are
used by appropriate persons on appropriate occasions (i.e. by sane persons
understanding their position and free from various sorts of pressure) those who use
these words shall be bound to do the things designated by them.
 So, when we promise, we make sure of specified procedures to change our own moral
situation by imposing obligations on ourselves and conferring rights on others; in
lawyers’ parlance (jargon) we exercise “a power” conferred by rules to do this.
 H.L.A. Hart, The Concept of Law 42-3 (1961)
o A promise is an act by which a person imagines a possible world and signals a
commitment to bring that world into being by future action.
o A promise must be made to another person in a social context.
o The significance of a promise depends on 2 things—the existence of another
person to whom the promisor can be bound, and a social practice in which the
sounds fit and signal an obligation.
o

Promissory Agreements
 Ardente v. Horan
o Action for specific performance:
 Specific performance relates to a contract which is claimed to have been
breached.
 An action for specific performance requests the court to order a party to
comply with their contractual obligation.
 The contract may relate to personal or real property.
 A court will grant such relief only when monetary damages are
inadequate to remedy the situation.
o In the Superior Court, the ∆’s moved for Summary Judgment on the ground that
the facts were not in dispute and no contract had been formed as a matter of
law.
 Although the contract would appear to be within the statute of frauds,
defendants did not raise this defense in the trial court, nor did they raise
it here.
 Where a party makes no claim to the benefit of the statute, the court sua
sponte will not interpose it for him.
 Sua sponte - A phrase which means on one's own behalf.
Voluntary, without prompting or suggestion, frequently used to
describe matters undertaken on the court's own motion.
o Where there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law, summary judgment properly issues.

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o It is well established that one who opposes a motion for summary judgment may
not rest upon the mere allegations or denials of his pleading. He has an
affirmative duty to set forth specific facts which show that there is a genuine
issue of fact to be resolved at trial. If he does not do so, summary judgment, if
appropriate, will be entered against him.
o Rules analyzed in case:
 When acceptance is accompanied by further demands, the offeree makes
a counter-offer, terminating his power of acceptance.
 Where there is an offer to form a bilateral contract, the offeree must
communicate his acceptance to the offeror before any contractual
obligation can come into being. A mere mental intent to accept the offer
no matter how carefully formed, is not sufficient. The acceptance must
be transmitted to the offeror in some overt manner.
 To be effective, an acceptance must be definite and unequivocal
 1 Restatement Contracts § 58, comment a (1932)
 “An offeror is entitled to know in clear terms whether the offeree
accepts his proposal. It is not enough that the words of a reply
justify a probably inference of assent.”
 The acceptance may not impose additional conditions on the offer, nor
may it add limitations.
 “An acceptance which is equivocal or upon condition or with a limitation
is a counteroffer and requires acceptance by the original offeror before a
contractual relationship can exist.”
 An acceptance may be valid despite conditional language if the
acceptance is clearly independent of the condition.
 1 Williston, Contracts § 79 (1957); 1 Corbin § 84
 “Frequently an offeree, while making a positive acceptance of the
offer, also makes a request or suggestion that some addition or
modification be made. So long as it is clear that the meaning of
the acceptance is positively and unequivocally to accept the offer
whether such request is granted or not, a contract is formed.”
 1 Corbin, supra § 82
 “The question whether a communication by an offeree is a
conditional acceptance or counter-offer is not always easy to
answer. It must be determined by the same common-sense
process of interpretation that must be applied in so many other
cases.”
 A general acceptance is an absolute acceptance precisely in
conformity with the tenor of the bill itself, and not qualified by
any statement, condition, or change. Todd v. Bank of Kentucky, 3
Bush (Ky.) 628.
 A special acceptance is the qualified acceptance of a bill of
exchange, as where it is accepted as payable at a particular place
"and not elsewhere."
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 Petterson v. Pattberg
o

 Seaview Ass’n of Fire Island, N.Y., Inc. v. Williams

o
 Note on Consent and Fair Play
o John Rawls has suggested that “when a number of persons engage in a mutually
advantageous cooperative venture according to rules, and thus restrict their
liberty in ways necessary to yield advantages for all, those who have submitted
to these restrictions have a right to a similar acquiescence on the part of those
who have benefited from their submission.
o The basis of such a right, with the corresponding duty on the benefitted party, is
fair play:
 Fair play – a person should do his or her part as defined by the rules of an
institution when the institution is just and that person has voluntarily
accepted the benefits of the arrangement or taken advantage of the
opportunities it offers.
o Fair play is an alternative to consent as a basis of contractual obligation,
implementing the autonomy principle.
o Like consent, fair play attaches obligations to a person’s voluntary acts.
o Consent theory, however, standardly bases the obligation on the parties’
knowing, deliberate, and intentional undertakings.
o Fair play, by contrast, bases the obligation on the relationship between voluntary
benefit-taking and the need for cooperation to keep the benefits coming.
 Formation Under the U.C.C.
o The common law of offer and acceptance works best to implement the
autonomy and security principles in such circumstances.
o Contracting in commercial relationships often leaves much of the agreement
implicit or open for ongoing cooperation.
o The relevant part of the U.C.C. takes a more flexible approach to contract
formation, allowing the law to respond to reasonable commercial practices
instead of withholding enforcement unless the transaction fits into the law’s pre-
set categories.
 Note on the Uniform Commercial Code (U.C.C.)
o The U.C.C. is an unusual statute in that it begins with a statutory command
concerning its interpretation: It “must be liberally construed and applied to
promote its underlying purposes and policies.”
o The underlying putposes (i.e., principles) and policies of the act are to simplify,
clarify, and modernize the law governing commercial transactions; to permit
continued expansion of commercial practices through custom, usage, and
agreement of the parties; and to make uniform the law among the various
jurisdictions.

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o The U.C.C. implements these goals through “articles” containing legal rules and
standards.
o Article 2 “applies to transactions in goods.”
o “Goods” is defined to include “all things (including specially manufactured
goods) which are movable at the time of identification to the contract for sale
other than the money in which the price is to be paid, investment securities …
and things in action.”
o “Goods” also includes the “unborn young of animals and growing crops and
other identified things attached to realty.”
o It is important to consider in any contracts case whether the problem involves a
“transaction in goods” within the meaning of Article 2. If it does, the U.C.C. is the
applicable law and governs the transaction as a matter of priority.
o Common examples of contracts that are not for the sale of goods are contracts
for the purchase of services (such as employment contracts) and contracts for
the purchase of real estate (land is not a good because it is not moveable).
o Most courts deal with such mixed or hybrid contracts using what is known as the
“predominant purpose” test.
 If the goods component of the contract predominates, the Article 2
applies to the entire contract.
 If the services component predominates, the Article 2 does not apply,
and the common law governs the entire contract.
 (“This convention does not apply to contracts in which the preponderant
part of the obligations of the party who furnishes the goods consists in
the supply of labor or other services.”)
 To determine whether the goods or services component of the contract
predominates, courts consider various factors, including:
 (1). The language of the contract;
 (2). The nature of the business of the supplier of goods and
services;
 (3). The reason the parties entered into the contract; and
 (4). The amounts paid for the rendition of the services and goods,
respectively.

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(Source Materials) Burton & Eisenberg, eds., Contract Law: Selected Source
Materials Annotated (West Academic, 2018 ed.)

Chapter 1: Meaning of Terms (Pg. 157-158)

 § 1. Contract
o 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
as a duty.
o Comment
 Other Meanings. The word “contract” is often used with meanings
different from that given here. It is sometimes used as a synonym for
“agreement” or “bargain.” It may refer to legally ineffective agreements,
or to wholly executed transactions such as conveyances; it may refer
indifferently to the acts of the parties, to a document which evidences
those acts or to the resulting legal relations. In a statute the work may be
given still other meanings by context or explicit definition. As is indicated
in the Introductory Note to the Restatement of this Subject, definition in
terms of “promise” excludes wholly executed transactions in which no
promises are made; such a definition also excludes analogous obligations
imposed by law rather than by virtue of a promise.
 Act and resulting legal relations. As the term is used in the Restatement
of this Subject, “contract,” like “promise,” denotes the act or acts of
promising. But, unlike the term “promise,” “contract” applies only to
those acts which have legal effect as stated in the definition given. Thus
the word “contract” is commonly and quite properly also used to refer to
the resulting legal application, or to the entire resulting complex of legal
relations. Compare Uniform Commercial Code § 1-201(11), defining
“contract” in terms of “the total legal obligation which results from the
parties agreement.”
 § 2. Promise; Promisor; Promisee; Beneficiary.
o (1). A promise is a manifestation of intention to act or refrain from acting in a
specified way, so made as to justify a promisee in understanding that a
commitment has been made.
o (2). The person manifesting the intention is the promisor.
 Promisor – a person who makes a promise.
o (3). The person to whom the manifestation is addressed is the promisee.
 Promisee - a person to whom a promise is made.
o (4). Where performance will benefit a person other than promisee, that person
is a beneficiary.
 Acts and resulting relations. “Promise” as used in the Restatement of this
Subject denotes the act of the promisor. If by virtue of other operative
facts there is a legal duty to perform, the promise is a contract; but the
word “promise” is not limited to acts having legal effect. Like “contract,”

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however, the word “promise” is commonly and quite properly also used
to refer to the complex of human relations which results from the
promisor’s words or acts of assurance, including the justified
expectations of the promisee and any moral or legal duty which arises to
make good the assurance by performance. The performance may be
specified either in terms describing the action of the promisor or in terms
of the result which that action or inaction is to bring about.
 Manifestation of intention. Many contract disputes arise because
different people attach different meanings to the same words and
conduct. The phrase “manifestation of intention” adopts an external or
objective standard for interpreting conduct; it means the external
expression of intention as distinguished from undisclosed intention. A
promisor manifests an intention if he believes or has reason to believe
that the promisee will infer that intention from his words or conduct.
Rules governing cases where the promisee could reasonable draw more
than. One inference as to the promisor’s intention are stated in
connection with the acceptance of offers (see §§ 19 and 20), and the
scope of contractual obligations (see §§ 201, 219).
 § 3. Agreement Defined; Bargain Defined.
o An agreement is a manifestation of mutual assent (expression of
approval/agreement) on the part of two or more persons.
o A bargain is an agreement to exchange promises or to exchange a promise for
a performance or to exchange performances.
 Comment
 Agreement distinguished from bargain. Agreement has in some
respects a wider meaning than contract, bargain or promise. On
the other hand, there are contracts which do not require
agreement. See, e.g., §§ 82-90, 94, 104. The word “agreement”
contains no implication that legal consequences are or are not
produced. It applies to transactions executed on one or both
sides, and also to those that are wholly executory. The word
contains no implication of mental agreement. Such agreement
usually but not always exists where the parties’ manifest assent to
a transaction. . .
 § 4. How a Promise May Be Made.
o A promise may be stated in words wither oral or written, or may be inferred
wholly or partly from conduct.
 § 5. Terms of Promise, Agreement, or Contract.
o (1). A term of a promise or agreement is that portion of the intention or assent
manifested which relates to a particular matter.
o (2). A term of a contract is that portion of the legal relations resulting from the
promise or set of promises which relates to a particular matter, whether or not
the parties manifest an intention to create those relations.
 § 6. Formal Contracts.
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o The following types of contracts are subject in some respects to special rules that
depend on their formal characteristics and differ from those governing contracts
in general:
 (a). Contracts under seal,
 (b). Recognizances,
 (c). Negotiable instruments and documents,
 (d). Letters of credit
 § 7. Voidable Contracts.
o A voidable contract is one where one or more parties have the power, by a
manifestation of election to do so, to avoid the legal relations created by the
contract, or by ratification of the contract to extinguish the power of avoidance.
 § 8. Unenforceable Contracts.
o An unenforceable contract is one for the breach of which neither the remedy of
damages nor the remedy of specific performance is available, but which is
recognized in some other way as creating a duty of performance, though there
has been no ratification.

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(“ILLR”) Burton, An Introduction to Law and Legal Reasoning .3d ed., (2007)

Introduction, pg. 1-9

 What is the Law?
o Law is the collection of precedents, rules, principles, and policies employed by
judges when justifying their decisions.
o Judges are under a duty to uphold the law. They should apply the law to the facts
of a case to yield legal reasons.
 Legal Reasons – reasons for action by law-abiding citizens.
 Legal Reasoning is the process of using legal reasons in legal arguments.
A. The Rule of Law
 The U.S. Constitution provides that “no person shall… be deprived of life, liberty, or
property, without due process of law.”
 Much of what government does, of course, deprives people of life, liberty, or property.
 By the most widely accepted accounts, the rule of law requires coercion to be used by
officials only when and as authorized by the law.
 Legal reasoning is supposed to draw a connection between the law and a particular
action, implementing the rule of law.
 One version of the rule of law, often called “legal formalism,” insists that legal reasoning
should determine all specific actions required by the law based only on objective facts,
unambiguous rules, and logic.
 Comparisons of decisions reached by different officials in similar situations may suggest
that the officials’ personalities, politics, or prejudices had more to do with the decision
than did the law. Such a reaction to legal formalism is called “Legal Skepticism.”
 Legal Skepticism is troubling in 2 ways:
o First, how can a genuine skeptic function as an effective lawyer if legal reasoning
cannot be relied on to connect law with official action?
o Second, why should such a game go on?
B. A Practical Approach
 Formalism hold that law and legal reasoning must satisfy it's standard and claims that
this standard can be satisfied in practice.
 Skepticism agrees that law and legal reasoning must satisfy formalism’s standard, but it
claims that, realistically, that standard is not or cannot be satisfied in practice.
 In the physical and social sciences, a law is a general description of the regularities in the
behavior of persons, events, or things.
 A descriptive law in principle is falsified by one replicable instance in contradiction to it.
 Formalism’s standard requires the rules, facts, and logic to fix lawful conduct in any
case; otherwise, the skeptic says, the law is indeterminate and has no effect at all.
 Legal laws, however, do not describe regularities in the behavior of anything. Rather,
these laws prescribe human conduct: They say how people ought to act.
 The law might lose it's force if disobedience were persistent and widespread.

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 Practical choices—those concerning human action—must be made and understood

from an actor’s point of view, not an observer’s.
 An observers observations yield reasons for beliefs. Unlike the observer, Mitch the
Motorist who ran the red-light, has reasons for action based in the law.
 Whether acting, advising an actor, or judging an actor’s conduct, what matters are the
reasons indicating what the actor should do.
 Reasons for action are not subjective.
 Reasons allowed by the law—legal reasons—may not have the final word on what
anyone should do.
 On this basis, the practice of law and judging can be explained in a practical way that
avoids the stark choice between legal formalism and legal skepticism.
 This approach requires that we consider law and legal reasoning with attention to the
point of view of legal actors, including citizens and those who advise and judge them. It
also requires that legal reasoning be considered in light of it's functions in the real-world
contexts in which it is used.
 In the abstract, legal reasoning does not differ significantly from other kinds of practical
reasoning.
 The chief feature of legal reasoning is that it is used in the process of anticipating or
settling important disputes in advanced societies.
 One person has something the other person claims.
 Disputes in which the parties persist may be settled by organized combat between the
parties (duels), their champions (jousts), or their clans (feuds). They may be settled by
ritual appeals for God’s judgment (trial by ordeal; consulting an oracle). They may be
settled by a third person’s command (father knows best; the divine right of kings) or by
appeal to chance (flipping a coin).
 Disputes also may be settled by appealing to a third person’s reason, an intellectual
search for the fair or right in the matter (arbitration, adjudication).
 It seems obvious that law and legal reasoning enable judges to reach final, peaceful, and
justifiable dispute settlements better than would the alternatives.
C. Scope
 Chapters 1-4 show that these 2 forms of legal reasoning are useful in several respects
and are crucial for expressing the conclusions of legal reasoning effectively.
 It also shows that, in many cases, they are not adequate to determine legal answers, as
required by legal formalism. They leave a judgment of importance unconstrained by the
rules and precedents, making it unclear whether legal reasoning can implement the rule
of law.
 Chapters 5-9 show that, though legal reasoning does not produce the certain answers
required by legal formalism, it nonetheless produces lawful predictions, arguments, and
decisions with a significant degree of regularity.
 This approach therefore rejects legal skepticism.
 Chapter 10 addr3esses the problem of legitimacy in a democratic society under the rule
of law—whether the law is compatible with political morality such that it should be

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obeyed. This book does not conclude that law and legal reasoning achieve legitimacy as
currently practiced in the United States. It suggests, however, the conditions under
which a practice like ours could deserve the respect that obedience confers.
Chapter 1: Cases and Rules (p.11)
 3 main questions of this chapter:
o What is a case?
o What is a rule?
o Why do we study primarily cases?
A. Cases
 Case – a short story of an incident in which a court acted or may act to settle a dispute.
 Treating a case as a short story emphasized that it has a beginning, middle, and an end.
The story begins when two or more people get into a dispute or one person gets into a
dispute with the community as represented by law enforcement officials.
 In the initial phase, the parties may interact informally or through lawyers. A middle
phase commences when one party (the plaintiff or prosecutor) files a complaint against
another (the defendant) with a trial court, calling on the court to settle the dispute in
favor of the complaining party. It continues in the trial court until a judgment is entered
by the presiding judge. If either party believes the judge erred on a point of law, it may
appeal to an appellate court, where the last phase takes place.
 The arguments are heard by a group of judges who issue a final judgement settling at
least part of the dispute. The appellate court writes and publishes an opinion that
summarizes the facts of the dispute and the proceedings in the trial court, announces a
decision on the issues before the appellate court, and gives the reasons for it's decision.
 Treating a case as a short story of an incident in which a court acted or may act
emphasizes that we will focus mainly on two sorts of disputes:
o (1). Disputes in the past that were settled, at least in part, by the coercive
disputes settlement machinery of the state (decided cases, or “precedents”) and
(2) unresolved or foreseeable disputes that might be settled in that way
(problem cases).
o Every request to a court is a request that the state use force, if necessary, to
settle the dispute in favor of the complaining party.
B. Rules
 Rule – a general statement of what the law permits or requires of classes of people in
classes of circumstances.
 Treating a rules as a general statement emphasizes that all rules are cast in language.
 Legal rules characteristically require interpretation, which is an important part of legal
reasoning.
 Treating a rules as a general statement of what the law permits or requires emphasizes
that a rule is normative. That is, a rule guides conduct by saying something about what
people in general should or should not do.

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 A rule might include a descriptive part, as when it stats the circumstances under which
an obligation comes into play.
 Treating a rules as a general statement of what the law permits or requires of classes of
people in classes of circumstances emphasizes that rules apply to groups of people in
similar situations.
 Legal rules are supposed to affect what people do by bringing obligation, and often
force or the threat of force, to bear on their behavior.
 Order – a statement of what the law permits or requires of one person under one set of
circumstances—in one case.
 A Rule is a general statement of what the law permits or requires of classes of people in
classes of circumstances. A Case is a short story of an incident in which a court acted or
may act to settle a dispute.
C. Legal Reasoning and Legal Problems
 You will be asked to describe what the court did in each case, to explain why it did it, to
analyze the implications of each case for possible future disputes, and to synthesize the
lessons from groups of cases into a general understanding of each topic under study.
 Much lawyering is an effort to anticipate possible disputes and then to plan a client’s
activities so that disputes are not likely to arise or can be settled advantageously if they
do arise.
 Much lawyering is an effort to settle existing disputes by negotiation.
 Most of the disputes that reach a lawyer are settled before or soon after they reach a
court. Most of those that proceed to trial and judgement are not appealed.
 Lawyers in practice spend the better part of their time planning, counseling, drafting,
negotiating, or preparing for trials—anticipating and processing disputes from the law
office.
 Throughout, however, an important part of lawyering is court-oriented. This part
consists of predicting what a court would do if a case were to materialize and be taken
to court, or persuading someone of what a court will or should do in that event.
 The lawyers’ skills at negotiation will determine the amount of the settlement. Though
many factors will influence the negotiation, one will be the lawyers’ skills at persuasion.
 As the lawyering process unfolds, new information is acquired, and new arguments are
developed. The lawyers should revise their predictions and negotiate further.
 If the trial judge errs either by applying the wrong law or, as sometimes happens, by
applying the correct law wrongly in the case, the final judgement may be reversed on
appeal to a higher court. The lawyers representing the parties will be allowed to make
arguments to the trial judge on what the law permits or requires in each decision. These
arguments by counsel in large part will seek to persuade the trial judge of what the
appellate court would decide on the point if an appeal were taken.
 The lawyers and the lower court judges wanted to predict what judges further along the
sequence would do and persuade others of what those judges would do, to avoid
moving to the next stage of the sequence unnecessarily. The highes appellate court

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does not care to predict what it will itself do. The highest appellate court care about
what it should do.
 The highest appellate court’s concern may be said in general to have two components
o First, this court will care that the law be reasonable stable and predictable so
that lawyers and lower court judges can do their jobs and people can plan their
activities to remain within the law. This will lead the court to give weight to
established understanding of what the law is because lawyers and lower court
judges rely on these understandings.
o Second, the highest appellate court will care that the law be justified in light of
contemporary social, historical, and cultural circumstances and evolving notions
of justice. Therefore, the court will be open to arguments that the law should be
changed to improve its justification; it will care what the law ought to be.
 Lawyers and lower court judges predictions of and arguments about what the highest
appellate court would do in the case, like the court’s final judgement itself, should be
based on the established law and an evaluation of it under contemporary circumstances
and in light of evolving notions of justice.
 Therefore, the lawyer’s predictions and legal arguments depending part on what
lawyers think the highest appellate judges will think the law ought to be. The appellate
decision depends in part on what the law highest appellate judges think lawyers
(commonly) think is the law as it stands.
D. Using Rules and Cases
 (1). Rules in Problem Cases
o Using a rule often requires intensive analysis and considerable interpretation.
o In almost any case, knowing the rules leaves more intellectual work to be done
because rules are expressed imperfectly and projected into an uncertain future.
o A rule alone does not determine whether many cases come within the class it
designates.
o Whoever states a rule to govern future cases rarely, if ever, will anticipate all of
the future situations that might plausibly be described in the language of the rule
but that should not be within the class designated by the rule.
 Consider, also, cases that could not plausibly be described in the
language of the rule but that should be within the class.
o According to Karl Llewelyn
 “We have discovered in our teaching of the law that general propositions
are empty. We have discovered that students who come eager to learn
the rules and who do learn them, and who learn nothing more, will take
away the shell and not the substance. We have discovered that rules
alone, mere forms of words, are worthless. We have learned that the
concrete instance, the heaping up of concrete instances, the present,
vital memory of a multitude of concrete instances, is necessary in order
to make any general proposition, be it rule of law or any other, mean
anything at all. Without the concrete instances the general proposition is

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baggage, impedimenta, stuff about the feet. It not only does not help. It
hinders.
 (2). Decided Cases in Problem Cases
o Lawyers in practice generally will care less about the law in abstract than in it's
practical implications for particular existing or possible future disputes involving
a particular client. Judges Generally do not enact rules; instead, they decide
cases.
o Effective legal planning requires a keen sense of the variety of disputes that can
arise in the future. A lawyer planning a clients activities is engaged partly in
imagining the disputes that might arise from the client’s activities and in taking
precautions to minimize losses in such disputes.
o A study of the cases stimulates and supplements the imagination so that better
precautions can be taken for a greater variety of disputes that might arise from a
client’s activities.
o Once a dispute has arisen, the lawyer will care what a court will or should do in
that case.
o Pyrrhic victories, as when a court accepts a lawyer’s preferred general rule but
concludes that his client loses under the rule, usually are of little interest to the
lawyer and even less to the client.
 Pyrrhic Victory – a victory in which the victor’s losses are as great as
those of the defeated.
o To predict what the court will do in one case, you can look to what courts have
done in other, similar cases.
o To persuade a court of what it should do in one case, you can point out what
courts have done in other, similar cases.
o A practice of comparing and contrasting cases may supply particularities that
general rules leave untreated.
o A further reason can be given for emphasizing the study of cases:
 The action of a court to settle a dispute—the decision in a law case—is
coercive action by the state involving at least the threatened use of
physical force. The law that determines when that power may be used—
whenthe sheriff may depreive an individual of liberty or property
pursuant to judicial decree—also determines the limits of our freedom
from a major form of state compusion. The law at the sametime party
defines permissible uses of force by the state and the scope of individual
liberty.

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