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Langdell on Contracts and Legal Reasoning: Correcting the Holmesian Caricature

Published online by Cambridge University Press:  18 August 2010

Bruce A. Kimball
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Extract

During the first decade of his tenure as dean of Harvard Law School (HLS) from 1870 to 1895, Christopher C. Langdell (1826–1906) produced closely related works on contracts and sales that exercised great influence pedagogically and jurisprudentially. Pedagogically, the casebooks on contracts and sales introduced case method teaching into American legal education. In jurisprudential terms, these works placed Langdell with Frederick Pollock and William R. Anson in England and Oliver W. Holmes, Jr., in the United States, as the leading theorists of contract during its “golden age” of “overwhelming predominance” in Anglo-American law.

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Articles
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Law and History Review , Volume 25 , Issue 2 , Summer 2007 , pp. 345 - 399
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Copyright © the Board of Trustees of the University of Illinois 2007

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References

1. Quotations are from Friedman, Lawrence M., A History of American Law, 2d ed. (New York: Simon and Schuster, 1985), 275;Google ScholarHurst, J. Willard, Law and the Conditions of Freedom in the Nineteenth Century (Madison: University of Wisconsin Press, 1950), 10.Google ScholarOn the grouping of Langdell with Holmes, Anson, and Pollock as leading contract theorists,Bronaugh, Richard, “A Secret Paradox of the Common Law,” Law and Philosophy 2 (1983): 193,Google Scholar195n8;Farnsworth, E. Allan, “Contracts Scholarship in the Age of the Anthology,” Michigan Law Review 85 (1987): 1414;Google ScholarTeeven, Kevin M., A History of the Anglo-American Common Law of Contract (Westport, CT: Greenwood, 1990), 239;Google ScholarGordley, James, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press: 1991), 158;Google ScholarGordley, James, “Natural Law Origins of the Common Law of Contract,” in Towards a General Law of Contract, ed. Barton, John (Berlin: Duncker & Humboldt 1999), 428,Google Scholar446;Kelley, Patrick J., “A Critical Analysis of Holmes's Theory of Contract,” Notre Dame Law Review 75 (2000): 1696–97Google Scholar.

2. Two decades later, Langdell produced one more writing on contracts hotly rebutting the charge made byWilliston, Samuel [“Successive Promises of the Same Performance,” Harvard Law Review 8 (1894): 35],Google Scholarthat Langdell overlooked the logical fallacy of“Mutual Promises [serving] as a Consideration for Each Other” [Harvard Law Review 14 (1901): 496–508.]Google ScholarThe leading analysis of this late, separable controversy[Bronaugh, , “A Secret Paradox of the Common Law,” 193–232]Google Scholarseems to misunderstand Langdell's rebuttal, which Frederick Pollock called “a masterly reply” in“Afterthoughts on Consideration,” Law Quarterly Review 17 (1901): 422Google Scholar.

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6. Three of these have not previously been recognized as Holmes's writing. See Appendix 2.

7. The Little, Brown Co., Papers recently acquired by Houghton Library at Harvard University have not previously been examined by scholars; and I am grateful to Harvard Law School Special Collections Librarian David Warrington for calling them to my attention. Another archival source not previously examined is the copy ofLangdell's, Cases on Contracts (1871)Google Scholarthat was owned and annotated by William A. Keener, the future dean of Columbia University law school, when he studied at HLS in the mid-1870s. I am very grateful to David Warrington for alerting me to the existence of Keener's copy that is held in the University of Virginia Law School Library Special Collections, and for arranging for me to examine it at Harvard Law School Library Special Collections, courtesy of the University of Virginia Law Library.

8. Langdell, C. C., A Selection of Cases on the Law of Contracts…Prepared for Use as a Text-Book in Harvard Law School (Boston: Little, Brown, 1870).Google ScholarOn the originality of Langdell's casebook, seeKimball, B. A., “The Langdell Problem: Historicizing the Century of Historiography, 1906–2000s,” Law and History Review 22 (2004): 335–37Google Scholar.

9. Kimball, B. A. and Brown, R. Blake, “‘The Highest Legal Ability in the Nation’: Langdell on Wall Street, 1855–1870,” Law and Social Inquiry 29 (2004): 80–83.Google Scholar

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13. Quotations are from Daniel W. Wilder to Charles Warren (11 Oct 1907), Warren Papers. See, too,Smith, Jeremiah, “Christopher Columbus Langdell '45,” in Bulletin of Phillips Exeter Academy (Sept. 1906): 27–32, at 28Google Scholar.

14. Joseph H. Choate to Charles Warren (18 Oct. 1907), Warren Papers.

15. Even with this head start, Langdell undertook a massive project in a brief period. In the completed, 1871 edition of Cases on Contract, he drew only 35 percent of the cases (117/336) from Parsons's treatise. Unfortunately, the extant copy that Parsons presented to Langdell does not have any annotations reflecting Langdell's consultation in constructing Cases on Contract, Parsons, Law of Contracts, vol. 1, presentation copy to Langdell (Special Collections, Harvard Law School Library).

16. Kimball, B. A., “…The Inception of Case Method Teaching in the Classrooms of the Early C. C. Langdell, 1870–1883,” Law and History Review 17 (1999): 57–140.CrossRefGoogle Scholar

17. Emphasis added.Story, William W., A Treatise on the Law of Contracts not under Seal (Boston: Little and Brown, 1844), v;Google ScholarStory, William W., A Treatise on the Law of Contracts, 5th ed. prepared by Bigelow, Melville M. (Boston: Little, Brown & Co., 1874), 1: xiiiGoogle Scholar.

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19. Quoted in Note,Harvard Law Review 5 (1891–1892): 89.Google ScholarAs authorization for his inductive method, Langdell quoted on his title page the Latin maxim from Sir Edward Coke: “many times compendia sunt dispendia [shortcuts are a waste of time] and melius est petere fontes quam sectari rivulos [it is better to seek the sources than to follow the tributaries].” A few years later, Louis D. Brandeis testified that the principle was actively espoused, “Some of our professors are trying to inculcate in us a great distrust of textbooks, to prove to us the truth of the maxim—‘Melius est petere fontes quam sectari rivulas [sic].’ When one sees how loosely most text-books are written and how many startling propositions are unsupported by the authorities cited to sustain them—the temptation to become a Convert of Coke's is very great.” Brandeis to Otto A. Wehle (12 March 1876),Letters of Louis D. Brandeis, ed. Urofsky, Melvin I. and Levy, David W. (Albany: State University of New York Press, 1971), 1:7–8Google Scholar.

20. Langdell, C. C., A Summary of the Law of Contracts (Boston: Little, Brown, 1880), 12, 11–12.Google Scholar

21. Simpson, A. W. B., Legal Theory and Legal History: Essays on the Common Law (London: Hambledon Press, 1987), 315.Google Scholar

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23. [Holmes,] “Review (1871),” 540.

24. For example, the first case is entitled: “Payne v. Cave. In the King's Bench, May 2, 1789. (Reported in 3 Term Reports, 148.)”Langdell, , Cases on Contracts (1870), 1Google Scholar.

25. Novick, Sheldon M., ed., The Collected Works of Justice Holmes (Chicago: University of Chicago Press, 1995), 1:243.Google Scholar

26. [Holmes, Oliver Wendell Jr, ], “Harvard University Law School,” American Law Review 5 (1871): 177.Google Scholar

27. [Holmes, ,] “Review (1871),” 539–40.Google Scholar

28. Ibid.Langdell, , Cases on Contracts (1871),Google Scholarindex;Langdell, C. C., A Selection of Cases on the Law of Contracts with a Summary of the Topics Covered by the Cases…prepared for Use as a Text-Book in Harvard Law School, 2d ed. (Boston: Little, Brown, 1879), v.Google ScholarOn forbearance, compare the explanation of Thomas G. Barnes, “Introduction” toLangdell, , Cases on Contract (1871; reprint, Birmingham, Ala.: Legal Classics Library, 1983), 16,Google Scholar25–26.

29. Confirming the inductive character of his teaching, Langdell apparently referred to the index rarely in his own teaching, because his students James B. Ames and William A. Keener made copious annotations throughout their personal copies but scarcely touched the index.

30. [Holmes, ,] “Review (1871),” 540.Google Scholar

31. Langdell, , Cases on Contracts (1871), preface.Google Scholar

32. Alschuler, , Holmes, 89–90.Google ScholarOf course, the language also reflects the “immediate and cataclysmic change in outlook” arising from the publication ofDarwin's, The Origin of Species in 1859.Google ScholarGhiselin, Michael T., The Triumph of the Darwinian Method (Berkeley: University of California Press, 1969), 1Google Scholar.

33. Langdell, , Cases on Contracts (1871), 1022p.;Google ScholarLittle, Brown, & Co. Papers (Houghton Library, Harvard University), box 1, “Manuscript Cost book for Little Brown. 1865—,” sect. L, 65.

34. See Table 1. Geographical and chronological distribution of cases inLangdell, C. C., Cases on Contracts (1871)Google Scholar.

35. For example: “these [English] rules hold in the civil law, and in the law of Scotland, as well as in our law.”Langdell, , Summary of Contracts, 13Google Scholar.

36. Barnes, , “Introduction,” 15. See 18–20.Google Scholar

37. [Holmes, Oliver W. Jr, ], “[Review of] A Selection of Cases on the Law of Contracts …by C. C. Langdell…1871,” American Law Review 6 (1872): 353–54Google Scholar[hereafter 1872a];Novick, , Collected Works of Justice Holmes, 1:273Google Scholar.

38. [Holmes, ,] “Review (1872a),” 353–54.Google Scholar

39. An excellent discussion and demonstration of this point is found inLaPiana, , Logic and Experience, 58–67. SeeGoogle ScholarKent, James, Commentaries on American Law (New York: O. Halsted, 1827), 2:363–436;Google ScholarStory, , Law of Contracts, vii–x;Google ScholarMetcalf, Theron, Principles of the Law of Contracts: As Applied By Courts of Law (New York: Hurd and Houghton, 1867), 349–57;Google ScholarLeake, Stephen M., The Elements of the Law of Contracts (London: Stevens, 1867), vii–xxii;Google ScholarParsons, , Law of Contracts, v. 1,Google Scholarxiii–xxviii; v. 2, iii–x;Hilliard, Francis, The Law of Contracts, 2 vols. (Philadelphia: Kay, 1872)Google Scholar; Bishop, Joel P., The Doctrines of the Law of Contracts in Their Principal Outlines, Stated, Illustrated, and Condensed (St. Louis: Soule, Thomas & Wentworth, 1878).Google ScholarIn the late 1870s HLS Professor J. C. Gray, whose appointment Langdell had opposed, still categorized contracts according to their subject matter: services, money, or property. Wigglesworth, Class notes on Agency and Carriers, taught by John Chipman Gray, 1877–78, Harvard Law School Library, Special Collections, 1–2.

40. Story, , Law of Contracts, v. SeeGoogle ScholarParsons, , Law of Contracts, 1: vii, xi;Google ScholarSiegel, , “Joel Bishop's Orthodoxy,” 216–17Google Scholar.

41. Teeven, , A History of …Contract, 186, 198, 236–39.Google Scholar

42. Wiebe, Robert H., The Search for Order, 1877–1920 (New York: Hill & Wang, 1967), 164. See pp. 133–63.Google Scholar

43. Quotation is fromDuxbury, Neil, Frederick Pollock and the English Juristic Tradition (Oxford: Oxford University Press, 2004), 191.Google ScholarOn the association of these four jurists with each other and with developing a principled system of contract law, seeFarnsworth, , “Contracts Scholarship,” 1414;Google ScholarTeeven, , A History of…Contract, 239;Google ScholarGordley, , Origins of Modern Contract, 158;Google ScholarGordley, , “Origins of the Common Law of Contract,” 428, 446Google Scholar;Kelley, , “Holmes's Theory of Contract,” 1696–7;Google ScholarDuxbury, , Frederick Pollock, 191–201. Cf.Google ScholarAlschuler, , Holmes, 122–23Google Scholar.

44. LaPiana, , Logic and Experience, 188n19.Google Scholar

45. Oliver Wendell Holmes, Jr., “Oration,” inHarvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston: Harvard Law School Association, 1887), 38Google Scholar.

46. Langdell, , Cases on Contracts (1871), preface.Google Scholar

47. [Holmes, ,] “Review (1872a),” 353–54;Google ScholarHolmes, , “Oration” (1886), 38.Google ScholarPollock also subsequently endorsed the principle of parsimony that Langdell expressed.Duxbury, , Frederick Pollock, 303Google Scholar.

48. Story, , Law of Contracts, vii–x;Google ScholarStory, and Bigelow, , Law of Contracts, v. 1Google Scholar.

49. Parsons, , Law of Contracts, 1: xiv–xxii.Google Scholar

50. Of the 117 cases that Langdell drew from Parsons, 13 appear in Law of Contracts, 1: 403–8, addressing “Contracts on Time”; 44 appear in vol. 1, bk. 2, 353–98 addressing “Consideration”; 17 appear in vol. 2, 34–51 addressing “condition”; 14 appear in vol. 1, 444–49, 582, and vol. 2, 182–88. The remaining 29 are scattered in Law of Contracts.

51. Parsons, , Law of Contracts, 1:403–8.Google Scholar

52. Ibid., 353–98.

53. Quotations are respectively fromKelley, , “Holmes's Theory of Contract,” 1706;Google ScholarLaPiana, , Logic and Experience, 59.Google ScholarOn these common elements, seeFriedman, Lawrence M. and Macaulay, Stewart, “Contract Law and Contract Teaching: Past, Present, and Future,” Wisconsin Law Review (1967): 812;Google ScholarGordley, , Origins of Modern Contract, 161–213;Google ScholarSimpson, , Legal Theory and Legal History, 181–83;Google Scholar`Atiyah, Patrick S., An Introduction to the Law of Contract, 4th ed. (New York: Oxford University Press, 1989), 45;Google ScholarKelley, , “Holmes's Theory of Contract,” 1750;Google ScholarDuxbury, , Frederick Pollock, 201–8Google Scholar.

54. In the 1871 edition, Langdell added a third section on “Conditional Contracts,” and divided “Consideration” and “Conditional Contracts” into nine and ten subsections respectively, while he also promised future volumes of Cases on Contracts and later elaborated the subdivisions in his Summary of Contracts, demonstrating that the categories of offer, acceptance, and consideration required augmentation. Nevertheless, the centrality of offer, acceptance, and consideration is shown by the fact that when Contracts was divided into “prescribed” and “not prescribed” courses in 1872–73 and 1873–74 academic years, the “prescribed” course was devoted to the first half of the casebook addressing offer, acceptance, and consideration, while the second half of the casebook addressing “conditional contracts” was relegated to the elective course.

55. [Holmes, Oliver Wendell Jr, ], “[Review of] The American Reports,” 5Google ScholarAmerican Law Review 5 (1871): 550;Google ScholarNovick, , Collected Works of Justice Holmes, 1:249Google Scholar.

56. Langdell, C. C., A Selection of Cases on Sales of Personal Property…Prepared for Use as a Text-Book in Harvard Law School (Boston: Little, Brown, 1872), vol. 1.Google ScholarSimilar to the production of Cases on Contracts, a pre-print of the first half of this volume was issued in February 1871 and may have been used in Langdell's 1871–72 course on Sales. Little, Brown Papers, box 1, “Manuscript Cost book for Little Brown. 1865—,” sect. L, 65. But no copy of the pre-print has been found at Harvard Law School Library, and only the full volume now exists.

57. The casebook is scarcely noticed by leading historical analyses of the subject and overlooked even when modern casebooks recount their antecedents.Llewellyn, Karl, “Across Sales on Horseback,” Harvard Law Review 52 (1939): 725–46;Google ScholarLlewellyn, Karl, “The First Struggle to Unhorse Sales,” Harvard Law Review 52 (1939): 873–904;Google ScholarFriedman, Lawrence M., “Formative Elements in the Law of Sales: The Eighteenth Century,” Minnesota Law Review 44 (1960): 411n;Google ScholarNelson, Deborah K. and Howicz, Jennifer L., Williston on Sales, 5th ed. (Deerfield, III.: Clark, Boardman, Callaghan, 1994), 1–5;Google ScholarHonnold, John O. and Reitz, Curtis R., Sales Transactions: Domestic and International Law: Cases, Problems, and Materials, 2d ed. (New York: Foundation Press, 2001), 1–7.Google ScholarA search in LEXIS found that, since 1975, only three articles mention Langdell's Cases on Sales, none in regard to its substantive content.

58. 29 Car. II, c. 3, ss. 17 (1677). This account is drawn fromFriedman, , “Formative Elements in the Law of Sales,” 458;Google ScholarFriedman, , A History of American Law, 262–63, 540Google Scholar;Nelson, and Howicz, , Williston on Sales, 2–5;Google ScholarHonnold, and Reitz, , Sales Transactions, 4–5Google Scholar.

59. Kent, , Commentaries, 2:363;Google ScholarStory, , Law of Contracts, 479–553Google Scholar.

60. Parsons, , Law of Contracts, 1: xi–xii.Google Scholar

61. Metcalf, , Law of Contracts, 349–50, 355–57.Google Scholar

62. Martin, J. G., Legal Biography or a Thesaurus of American, English, Irish, and Scotch Law Books (Philadelphia: Johnson, 1847), 387.Google ScholarThe only two treatises appear to be:Story, William W., A Treatise on the Law of Sales of Personal Property (Boston: Little and Brown, 1847);Google ScholarHilliard, Francis, A Treatise on the Law of Sales of Personal Property (New York: Halsted and Voorhis, 1841)Google Scholar.

63. Blackburn, Colin, A Treatise on the Effect of the Contract of Sale on the Legal Rights of Property and Possession in Goods, Wares and Merchandise, 1st ed. (London: William Benning, 1845);Google ScholarBenjamin, Judah P., A Treatise on the Law of Sale of Personal Property (London: H. Sweet; Washington, D.C.: Morrison, 1868). SeeGoogle ScholarMeade, Robert D., Judah P. Benjamin, Confederate Statesman (London: Oxford University Press, 1943), 337;Google ScholarHoldsworth, William, A History of English Law, edited by Goodhart, A. L. and Hanbury, H. G. (London: Methuen, 1965), 15:303–5Google Scholar.

64. Gruning, David, “Book Review…,” Loyola Law Review 47 (2001): 989.Google Scholar

65. See, for example,Langdell, , Cases on Sales (1872), 95–96,Google Scholar1026, 1033;Langdell, , Cases on Sales (1872),Google Scholarannotated by unidentified student (Special Collections, Harvard Law School Library), marginal notes on 153;Langdell, , Cases on Sales (1872),Google Scholarannotated by Ames, marginal notes on 404–5.

66. Friedman, , “Formative Elements in the Law of Sales,” 455. SeeGoogle ScholarPayne v. Cave 3 Term Reports 148, inLangdell, , Cases on Contract, 1–3Google Scholar.

67. As William A. Keener recorded about Payne v. Cave, “Prof. Langdell thinks that, on principle, the moment the bid was made and accepted…this was a contract, though not a sale. The fall of the hammer passing the property.”Langdell, , Cases on Contract (1871),Google Scholarannotated by Keener, 2marg.

68. “Langdell and Holmes in the United States and Anson and Pollock in England… describe general contract law without trying to relate it to the law of sales, the law of leases, and so forth.”Gordley, , Origins of Modern Contract, 158;Google ScholarGordley, , “Origins of the Common Law of Contract,” 446Google Scholar.

69. Emphasis in original.Thayer, James B., “Lecture notes on Sales,” v. 1, 1 (20 Sept. 1876),Google ScholarThayer Papers, Harvard Law School Library, box 7, f. 3. Langdell's originality is likewise shown by the fact that in the late 1870s his colleague John Chipman Gray analyzed contracts according to their subject—services, money, or property—and included sales under the last. Wigglesworth, Class notes on Agency and Carriers, taught by John Chipman Gray, 1877–78, 1–2.

70. Wigglesworth, Class notes on Agency and Carriers, taught by John Chipman Gray, 1877–78, 1–2.

71. Langdell, , Cases on Sales (1872), 3n1, 92–93, 286n1.Google Scholar

72. See Table 3, Geographical and Chronological Distribution of Cases inLangdell, C. C., Cases on Sales (1872)Google Scholar.

73. Langdell, , Cases on Sales (1872), 1021–39.Google Scholar

74. [Holmes, Oliver W. Jr, ], “[Review of] A Selection of Cases on Sales of Personal Property …by C. C. Langdell…1872,” American Law Review 7 (1872): 145–46Google Scholar[Hereafter 1872b], at 145.

75. James B. Thayer, “Lecture notes on Sales,” v. 1, fly leaf (30 Oct. 1876), Thayer Papers, Harvard Law School Library, box 7, f. 3.

76. Langdell, , Cases in Equity Pleading…[Part I] (Cambridge: Printed for the Author, [1875]);Google ScholarLangdell, , Cases in Equity Pleading…Part II (Cambridge: John Wilson, 1876)Google Scholar;Langdell, , A Summary of Equity Pleading (Cambridge: Charles W. Sever, 1877);Google ScholarLangdell, , Cases in Equity Pleading (Cambridge: Printed for the Author, 1878)Google Scholar.

77. [Holmes, Oliver W. Jr, ], “[Review of] A Summary of Equity Pleading by C. C. Langdell…1877,” American Law Review 11 (1877): 763–64, at 763.Google Scholar

78. White, G. Edward, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 132–38.Google Scholar

79. [Holmes, ], “Review (1877),” 763–64.Google Scholar

80. Holmes to Langdell (3 March 1877) Oliver W. Holmes, Jr., Papers, Harvard Law School Library, microfilm reel 14.

81. Little, Brown, Co. had printed 1,500 copies of each of the first two casebooks.! Cases on Contract sold out in February 1878, while Cases on Sales sold more slowly, but steadily, until being exhausted in 1892. Little, Brown Papers, box 11, “Copyright and Commission Accounts 1869,” leaf “monthly Sales 1873–1885” and “Yearly Sales 1885–1899,” leaf 12.

82. Langdell, , Cases on Contracts (1879),Google Scholarwith a summary appended. The new, brief subsection was entitled “From whom the consideration must move.” (chap. 2, sec. 2.) Of the thirteen cases after 1869, eleven were English, and one each from New York and Massachusetts.

83. Quotations are, respectively, fromLangdell, , Cases on Contracts (1879), vi, 985–1116;Google Scholar[Holmes, ,] “Review (1872a),” 354Google Scholar.

84. “[Review of] Langdell's Selected Cases on Contracts…1879,” Southern Law Review, n.s. 5 (1880): 872–73.Google ScholarThe author was likely the editor Seymour D. Thompson, “a self-taught man who worked at a dozen occupations…before admission to the bar in 1869. In 1872 he began practicing law in St. Louis, where he…was elected Judge of the St. Louis Court of Appeals in 1880” and wrote a number of legal treatises.Paul, Arnold, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887–1895 (Ithaca: Cornell University Press, 1960), 43n11. Within a dozen years, this review was quoted as exemplifying outmoded opinion inGoogle ScholarNote, , Harvard Law Review 5 (1891–1892): 89Google Scholar.

85. Schofield, William, “Christopher Columbus Langdell,” American Law Register 55 o.s., 46 n.s. (1907): 273–96,Google Scholarat 286, citingAmes, James B., “Christopher C. Langdell,” Harvard Graduates' Magazine 15 (Dec. 1906): 213Google Scholar.

86. “Langdell's ‘Selected Cases on Contracts’ [A reply],” Southern Law Review 6 (1880): 449.Google ScholarMy analysis indicates that “M.” was James J. Myers, one of Langdell's students between 1871 and 1873, who also defended Langdell's educational reforms in the anonymous articles“‘Law Schools vs. Lawyers' Offices,’” Harvard Advocate (1 April 1873): 33–35,Google Scholar(11 April 1873): 50–51;“The Harvard Law School,” Harvard Advocate (5 February 1875): 146–47,Google Scholar(19 February 1875): 8–9.

87. Dicey, A. V., “An English View of American Conservatism,” The Nation (25 April 1880): 229.Google Scholar

88. [Holmes, Oliver W. Jr, ], “[Review of] A Selection of Cases on the Law of Contracts with a Summary…by C. C. Langdell…1879,” American Law Review 14 (April 1880): 233–35.Google ScholarOn Holmes's authorship, seeTouster, Saul, “Holmes a Hundred Years Ago: The Common Law and Legal Theory,” Hofstra Law Review 10 (1982): 695n91Google Scholar.

89. Anson, William R., Principles of the English Law of Contract and of Agency in its Relation to Contract (Oxford: Clarendon, 1879);Google Scholar[Holmes, ], “Review (March 1880),” 233Google Scholar.

90. [Holmes, ], “Review (March 1880),” 233–34.Google Scholar

91. Ibid., 234.

92. Langdell, , A Summary of Equity Pleading (Cambridge: Charles W. Sever, 1877), 5n1.Google Scholar

93. This account relies upon the magisterial interpretation ofWhite, , Holmes, 116–38Google Scholar.

94. The presumed accuracy of Holmes's critique is traceable through the influential writing of Mark DeWolfe Howe, Grant Gilmore, and Thomas C. Grey. This lineage is discussed inKimball, , “The Langdell Problem,” 302–22Google Scholar.

95. Only a few changes were made from the 1879 version.Langdell, , Summary of Contracts, vGoogle Scholar.

96. [Holmes, Oliver W. Jr, ], “[Review of] A Summary of the Law of Contracts by C. C. Langdell…second edition…1880,” American Law Review 14 (September 1880): 666.Google Scholar

97. See Keasbey, Edward Q., “The Origin and Nature of Consideration in the Law of Contract,” New Jersey Law Journal 6 (1883): 334.Google Scholar

98. [Holmes], “Review (March 1880),” 234;Google ScholarHolmes, Oliver Wendell Jr, The Common Law (Boston: Little, Brown, 1881), 1, 5Google Scholar.

99. The three: 297n2, 335n1, 337n1; the six: 286n3, 304n2–305nn1–2, 316n4, 317n1, 327n1, 329n2, 339n1. Holmes, The Common Law.

100. Kelley, , “Holmes's Theory of Contract,” 1756.Google ScholarIn The Common Law, “Holmes made heavy use of Langdell's [Summary of Contracts], either by adopting without attribution one of Langdell's insights or by using Langdell's analysis as a starting point to develop his own theory, often by simply reducing Langdell's analysis to a more positivist form” (p. 1715).

101. See especiallyHowe, Mark DeWolfe, Justice Oliver Wendell Holmes, vol. 2, The Proving Years, 1870–1882 (Cambridge: Harvard University Press, 1963), 228–30,Google Scholar241, 246. See, also,Horwitz, Morton J., The Transformation of American Law, 1870–1960 (New York: Oxford University Press, 1992), 37–38Google Scholar.

102. Kelley, , “Holmes's Theory of Contract,” 1746.Google Scholar

103. Langdell, , Summary of Contracts, vi;Google ScholarWhite, , Holmes, 172Google Scholar.

104. [Holmes], “Review” (Sept. 1880).

105. Letter from Oliver Wendell Holmes, Jr., toPollock, Frederick (10 April 1881), in Holmes-Pollock Letters…1874–1932, ed. Howe, Mark DeWolfe, 2d ed. (Cambridge: Harvard University Press, 1961), 1:17Google Scholar.

106. Baker, J. H., Book Review…, Modern Law Review 43 (1980): 469. See the different interpretations of intellectual influence inGoogle ScholarGordley, , Origins of Modern Contract, 161Google Scholar;LaPiana, , Logic and Experience, 76–78Google Scholar; Sebok, Anthony J., “Misunderstanding Positivism,” Michigan Law Review 93 (1995): 2087;Google ScholarKelley, , “Holmes's Theory of Contract,” 1687–89;Google ScholarPerillo, Joseph M., “The Origins of the Objective Theory of Contract Formation and Interpretation,” Fordham Law Review 69 (2000): 429, 462Google Scholar.

107. Quotations are fromPerillo, , “Objective Theory of Contract,” 427.Google ScholarCf. pp. 427–29, 463;Friedman, Lawrence M., Contract Law in America (Wisconsin: University of Wisconsin Press, 1965), 87;Google ScholarGordley, , Origins of Modern Contract, 161–63;Google ScholarHorwitz, , Transformation of American Law, 1870–1960, 36–39;Google ScholarKelley, , “Holmes's Theory of Contract,” 1694–96,Google Scholar1756–57;Duxbury, , Frederick Pollock, 191–201Google Scholar.

108. Howe, , Holmes, 2:246. SeeGoogle ScholarGilmore, Grant, The Death of Contract (Columbus: Ohio State University Press, 1974), 35;Google ScholarFarnsworth, , “Contracts Scholarship,” 1412;Google ScholarHorwitz, , Transformation of American Law, 1870–1960, 37–38.Google ScholarAs late as 1896, Holmes imputed the will theory to Langdell, thereby encouraging modern scholars to attribute to Langdell a “preoccupation with subjective consent.”Seipp, David J., “Holmes's Path,” Boston University Law Review 77 (1997): 526–27.Google ScholarFor such an attribution, seeHowe, , Holmes, 2:232–33Google Scholar.

109. Langdell, , Summary of Contracts, 244.Google Scholar

110. Kelley, , “Holmes's Theory of Contract,” 1756. See, also,Google ScholarPerillo, , “Objective Theory of Contract,” 464Google Scholar.

111. Langdell, , Cases on Contract (1871),Google Scholarannotated by Keener, 3marg, 13marg.

112. Kelley, , “Holmes's Theory of Contract,” 1756.Google ScholarLangdell's explicit refutation antedated Pollock as well.Duxbury, , Frederick Pollock, 194–96Google Scholar.

113. Howe, , Holmes, 2:241. See alsoGoogle ScholarGilmore, , Death of Contract, 19–21;Google ScholarFarnsworth, , “Contracts Scholarship,” 1412;Google ScholarAtiyah, Patrick S., Essays on Contract (Oxford: Clarendon Press, 1986; 2d ed., 1990), 60;Google ScholarNyquist, Curtis W., “Contract Theory, Single Case Research, and the Massachusetts Archives,” Massachusetts Legal History 3 (1997): 75–76Google Scholar.

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117. Atiyah, , Essays on Contract, 68. SeeGoogle ScholarDuxbury, , Frederick Pollock, 163, 206–9;Google ScholarFriedman, , A History of American Law, 277;Google ScholarAtiyah, , Law of Contract, 124–60;Google ScholarGordley, , Origins of Modern Contract, 165–75Google Scholar.

118. Langdell, , Cases on Contract (1871),Google Scholarannotated by Ames, 411marg.

119. Metcalf, , Law of Contracts, 161–63;Google ScholarStory, , Law of Contracts, 1:503; SeeGoogle ScholarKent, , Commentaries, 2:364–65;Google ScholarPollock, Frederick, Principles of Contract at Law and in Equity (London: Stearns, 1876), 154–58;Google ScholarAnson, , English Law of Contract, 61;Google ScholarKeasbey, , “Consideration in the Law of Contract,” 296Google Scholar.

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121. Ibid., 82.

122. Quotation is fromGordley, , Origins of Modern Contract, 173,Google Scholarwho cites the tenth edition (1936) of Frederick Pollock, Principles of Contract, and attributes “the core idea” to the first edition of 1876 (150–51), although Pollock does not there or elsewhere reduce consideration to detriment.

123. Holmes, , The Common Law, 290.Google ScholarHolmes proceeded to define consideration as whatever the parties declare to be the inducement for their promise. (292) The fundamental point, which Langdell had introduced, was that the law would not try to determine the “actual” inducement apart from what the parties declare to be their inducements.Kelley, , “Holmes's Theory of Contract,” 1757. Cf.Google ScholarGilmore, , Death of Contract, 19–21Google Scholar.

124. Ames, James Barr, “Christopher Columbus Langdell, 1826–1906,” in Great American Lawyers, ed. Lewis, William D. (Philadelphia: John C. Wilson, 1909), 8:465–89,Google Scholarat 479. See alsoKeasbey, Edward Q., “The Origin and Nature of Consideration in the Law of Contract,” New Jersey Law Journal 6 (1883): 334Google Scholar.

125. Wigglesworth, Class Notes of Contracts taught by Ames, 1876–77, leaves 1–2.

126. Ames, , “…Langdell, 1826–1906,” 479.Google Scholar“the contract is unilateral, [if] consisting of a promise on one side, and something given or done (not promised to be given or done) on the other. If there is a promise on each side, and yet but one contract, the contract is bilateral; and if the making of a promise is the only thing given or done on either side, the contract is purely bilateral…”Langdell, , Summary of Contracts, 102–3Google Scholar.

127. Langdell, , Summary of Contracts, 253.Google Scholar

128. “Contracts arising from mutual promises are Bilateral. Contracts arising from shipment of goods by order, allotment of shares, guaranties, etc. are unilateral, binding offeror….[In] ordinary unilateral contracts, e.g. those arising from shipment of goods according to order, the offeree is not required to give notice of the performance of the act requested…”Langdell, , Cases on Contract (1871),Google Scholarannotated Ames, flyleaves. See, also,Langdell, , Cases on Contract (1871),Google Scholarannotated by Keener, 1marg, 3marg–6marg, 37marg.

129. Perillo, , “Objective Theory of Contract,” 452.Google Scholar

130. Offord v. Davies, 12 C.B.N.S. 748 (1862, Eng.).Google Scholar

131. Metcalf, , Law of Contracts, 191–220;Google ScholarLeake, , Elements of…Contracts, 26–38.Google ScholarLeake's term is operational, overbroad in some respects, and too narrow in others, whereas Langdell's unilateral/bilateral distinction is more precise and salient.

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133. Pollock, , Principles of Contract, 148, 27.Google Scholar

134. Anson, , English Law of Contract, 23.Google Scholar

135. “The terms unilateral and bilateral are disappearing since the bifurcation does not encompass the formation of all contracts.”Teeven, , A History of…Contract, 179.Google ScholarCf.Farnsworth, , “Contracts Scholarship,” 1410–11;Google ScholarAtiyah, , Law of Contract, 46–48Google Scholar.

136. Holmes, , The Common Law, 335–39.Google ScholarSee also, 287, 304–6, 319, 327;LaPiana, , Logic and Experience, 120–21Google Scholar.

137. Simpson, , Legal Theory and Legal History, 204. SeeGoogle ScholarKlare, Karl, “Contracts Jurisprudence and the First-Year Casebook [Book Review],” New York University Law Review 54 (1979): 878Google Scholar; Grey, Thomas C., “Langdell's Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 36;Google ScholarFriedman, , Contract Law in America, 212;Google ScholarGilmore, , Ages of American Law, 62Google Scholar;Friedman, and Macaulay, , “Contract Law and Contract Teaching,” 805–6;Google ScholarTeeven, , A History of…Contract, 218;Google ScholarPatterson, , “Langdell's Legacy,” 198–201;Google ScholarHorwitz, , Transformation of American Law, 1870–1960, 189;Google ScholarVandevelde, Kenneth J., Thinking Like a Lawyer (Boulder, Col.: Westview Press, 1996), 114–17;Google ScholarSiegel, , “John Chipman Gray,” 1524–27;Google ScholarWiecek, , Classical Legal Thought, 92–93;Google ScholarKelley, , “Holmes's Theory of Contract,” 1704–10, 1755–56;Google ScholarKelley, Patrick J., “Holmes, Langdell, and Formalism,” Ratio Juris 15 (2002): 35–40Google Scholar.

138. Emphasis in Holmes's original.[Holmes, ], “Review (March 1880),” 233,Google ScholarquotingLangdell, , Summary of Contracts, 20–21Google Scholar.

139. The authority of Holmes's critique is traceable through the influential writing of Mark DeWolfe Howe, Grant Gilmore, and Thomas C. Grey. This lineage is discussed inKimball, , “The Langdell Problem,” 302–22Google Scholar.

140. I am grateful to Daniel R. Coquillette for this insightful comparison.

141. Schweber, Howard, “The ‘Science’ of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education,” Law and History Review 17 (1999): 460, quotingGoogle ScholarLangdell, , Summary of Contracts, v. SeeGoogle ScholarSiegel, , “John Chipman Gray,” 1516Google Scholar.

142. Langdell, , Summary of Contracts, v.Google Scholar

143. Ibid., iii, v.

144. Kelley, , “Holmes's Theory of Contract,” 1710.Google Scholar

145. See Appendix 1, Headings in Langdell's Summary of Contracts. The correspondence holds if one subsumes under the casebook's undivided chapter on “mutual consent” the headings “acceptance,” “bidding at auction,” “offer,” “revocation of offer,” and “unilateral and bilateral contracts.”

146. The availability of the summary had the potential of turning the case method from inductive into illustrative; and subsequent HLS professors felt that “too much help was thus given to the student by [Langdell's] summaries; and…the later Harvard case books contained no summary” with a few exceptions.The Centennial History of the Harvard Law School, 1817–1917 (Cambridge: Harvard Law School Assoc., 1918), 81.Google Scholar

147. Langdell, , Summary of Contracts, v.Google ScholarThe preface to the Summary implies that Langdell was unenthusiastic about issuing it separately and seems to have done so only at the urging of the publisher, which envisioned a separate market for it. (pp. iii–iv.)

148. [Holmes, ], “Review (March 1880),” 234.Google Scholar

149. Quotation is fromKelley, , “Holmes's Theory of Contract,” 1710. SeeGoogle ScholarLaPiana, , Logic and Experience, 58,Google Scholar65, 78;LaPiana, , “Just the Facts: The Field Code and the Case Method,” New York Law School Law Review 36 (1991): 304;Google ScholarKimball, and Brown, , “Langdell on Wall Street,” 75–83Google Scholar.

150. “A legal system is acceptable to the extent that it fulfills the ideals and desires of those under its jurisdiction…”Grey, , “Langdell's Orthodoxy,” 10Google Scholar.

151. Pollock, , Principles of Contract, 13.Google Scholar

152. Langdell, , Summary of Contracts, 15–21.Google Scholar

153. Adams v. Lindsell, 1 B. & Ald. 681, 106 Eng. Rep. 250 (K.B. 1818);Pollock, , Principles of Contract, 13. SeeGoogle ScholarAnson, , English Law of Contract, 20;Google ScholarParsons, , Law of Contracts, 1:406–7nkGoogle Scholar.

154. Sebok, , “Misunderstanding Positivism,” 2078.Google Scholar

155. Pollock, , Principles of Contract, 13.Google Scholar

156. McCulloch v. Eagle Ins. Co., 18 Mass. (1 Pick.) 278 (1822);Langdell, , Summary of Contracts, 16–181.Google ScholarQuotation is from 16.

157. Langdell, , Summary of Contracts, 19.Google Scholar

158. Ibid., 15, 21.

159. Smith, , “Believing Like a Lawyer,” 1089. SeeGoogle ScholarGrey, , “Langdell's Orthodoxy,” 16–24Google Scholar.

160. Howe, , Holmes, 2:243n50. SeeGoogle ScholarTouster, , “Holmes,” 695n91Google Scholar.

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167. Gilmore, , Ages of American Law, 62.Google Scholar

168. Quotation is fromPerillo, , “Objective Theory of Contract,” 441.Google ScholarSee 441–42, citing and quoting cases:Beane v. Middleton, 4 H. & McH. 74, 78 (Maryland 1797);Google ScholarWilkie v. Roosevelt, 3 Johns Cas. 206 (New York Sup. Ct. 1802);Google ScholarPaul v. Frazier, 3 Mass. 71, 73 (1807);Google ScholarHallett v. Wylie, 3 Johns. 44, 46 (New York 1808);Google ScholarBanorgee v. Hovey, 5 Mass. 11, 23 (1809)Google Scholar.

169. Parsons, , Law of Contracts, 2:33. See also 1:522–26.Google Scholar

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171. Teeven, Kevin M., “Conventional Moral Obligation Principle Unduly Limits Qualified Beneficiary Contrary to Case Law,” Marquette Law Review 86 (2003): 715–16.Google Scholar

172. See, for example,Langdell, , A Summary of Equity Pleading, 2d ed. (Cambridge: Charles W. Sever, 1883), ss. 109–111, 113, 119Google Scholar.

173. Langdell, , Summary of Contracts, 208–9.Google Scholar

174. Farnsworth, , “Contracts Scholarship,” 1430–31.Google ScholarAmes, for example, credited Langdell with introducing and establishing the point that forcing “specific performance” on a contract in common law was a misnomer, drawn from equity, and actually referred to requiring “specific reparations” for breach of contract. Ames, “…Langdell, 1826–1906,” 479.

175. Holmes, , The Common Law, 305–7.Google Scholar

176. Quotation is fromWhite, , Holmes, 152.Google ScholarSee 171, 179–80;Gilmore, , Ages of American Law, 52;Google ScholarTouster, , “Holmes a Hundred Years Ago,” 679–80;Google ScholarAlschuler, , Holmes, 86–107.Google ScholarIn Robert Gordon's memorable phrase, “The Common Law… is a book at war with itself.”Gordon, Robert, “Holmes's Common Law as Legal and Social Science,” Hofstra Law Review 10 (1982): 720–21Google Scholar.

177. Langdell, , Summary of Contracts, 20–21. Emphasis added.Google Scholar

178. Ibid., 21.

179. Anson, , English Law of Contract, 20.Google Scholar

180. Langdell, , Summary of Contracts, 21.Google Scholar

181. Anson, , English Law of Contract, 2d ed. (Oxford: Clarendon, 1883), 30–31.Google Scholar

182. Holmes, , The Common Law, 305.Google ScholarThis concession also implies that Holmes knew he was oversimplifying Langdell's view with the “irrelevancy” quotation in his 1880 review.

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184. Ibid., 21.

185. Pollock, , Principles of Contract, 11–13. See 18.Google Scholar

186. Quotation is fromGrey, , “Langdell's Orthodoxy,” 15.Google ScholarGrey cites a number of the following instances of Langdell “appealing to considerations of justice or policy” but does not regard these as “justify[ing] a bottom-level rule or individual decision.” (pp. 14, 13–14n50.)

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188. Quotations are from ibid., 244.Langdell, references cases in Cases on Contracts, 125, 129, 136, 156, 160–61Google Scholar.

189. Quotations are fromLangdell, , Summary of Contracts, 169–70.Google ScholarCase references are made on 170–71.

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191. Emphasis added. Ibid., 177.

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193. Otherwise, it would be “very harsh,” or unfair, for the debtor to gain relief from the debt through an agreement intended to effect payment of the debt. Applying the rule to a specific case “in building contracts,” Langdell maintained that a condition, such as procuring “the architect's certificate,” would be unfair if the architect is “employed…by the [owner] who makes the condition” and who seeks to avoid paying the builder by withholding the certificate. In this situation, “the court should not, therefore, give a condition such a construction, if it can fairly avoid doing so.”Langdell, , Summary of Contracts, 44–45Google Scholar.

194. Langdell maintained that, in order to avoid “hardship,” the court will read a condition subsequent into a contract when unforeseen dire events result in non-performance. In circumstances such as the death of a covenanter or the destruction of the property to be conveyed, Langdell states, “the hardship of requiring a party to pay damages for nonperformance is so great as to raise a presumption that the event would have been made a condition subsequent if it had been foreseen.”Langdell, , Summary of Contracts, 54Google Scholar.

195. “The only security that one ever has, when he performs a condition precedent, that the covenant or promise will be performed, is an action for damages…The only way in which the law can relieve a plaintiff [covenantor] from this hardship is by making the condition concurrent, and that the law does whenever it can…”Langdell, , Summary of Contracts, 228–29Google Scholar.

196. A sterile formalist would justify the rule by appeal to the logical principle that the third-party beneficiary was not a party to the mutual assent between offeror and offeree. But Langdell invoked fairness: a rule allowing third-party beneficiaries to sue exposes the promisor to extended liability, because “the promisor would be liable to two actions.”Langdell, , Summary of Contracts, 79Google Scholar.

197. Langdell, , Summary of Contracts, 5–6.Google Scholar

198. Ibid., 95.

199. Ibid., 135. Emphasis supplied.

200. Ibid., 209–10.

201. Ibid., 225.

202. Ibid., 226.

203. Ibid., 237. Langdell had invoked this principle in 1871–72 when he delivered a lecture at Columbia University law school. George A Miller, “Summary by Professor C. C. Langdell, of Harvard Law School, of the law of dependent and independent covenants and promises,” leaf 7, in manuscript notebook of “Law lectures by Theodore W. Dwight, Senior year, 1871–72, Columbia College Law School” (Special Collections, Columbia University Law School Library).

204. Kimball, , “The Langdell Problem,” Table 1.Google Scholar

205. Grey, , “Langdell's Orthodoxy,” 13–14;Google ScholarSubrin, Stephen N., “David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision,” Law and History Review 6 (1988): 336–37Google Scholar.

206. Langdell, , “Partnership and Commercial Paper,” v. 1,Google Scholarleaves 9–11, 48–49.

207. Ibid., leaves 52v, 54v.

208. Grey, , “Langdell's Orthodoxy,” 15.Google Scholar

209. Langdell, , Summary of Contracts, 253. SeeGoogle ScholarAmes, , “…Langdell, 1826–1906,” 479Google Scholar.

210. Parsons, , Law of Contracts, 1:516–17, 520–23.Google Scholar

211. Ibid., 522–23. Langdell began his long accompanying note: “If this question is to be governed solely by the number of authorities, it would seem to be at rest.” 522nl.

212. Parsons, , Law of Contracts, 1:p517nGoogle Scholar, 522n–523n.

213. Langdell, , Summary of Contracts, 3;Google ScholarLangdell, , Cases on Contracts (1879), 33–38;Google ScholarOfford v. Davies, 12 C.B.N.S. 748 (1862, Eng.).Google ScholarLangdell dismissed a contemporary decision contra as “erroneous.”Langdell, , Summary of Contracts, 3n3Google Scholar; Bradbury v. Morgan, 1 H.& C. 249 (1862 Eng.).Google ScholarHe referred the reader to his casebook, where, in a long note, he explained that the court had misconstrued a guaranty as a contract of suretyship, contrary to statute.Langdell, , Cases on Contracts (1879), p37n1Google Scholar.

214. Langdell, , Summary of Contracts, 3.Google Scholar

215. Ibid., 4.Grey, , in his authoritative article, treats Langdell's analysis as complete at this point. “Langdell's Orthodoxy,” 15Google Scholar.

216. Parsons, , Law of Contracts, 2:33; 1:516–17.Google Scholar

217. Pollock, , Principles of Contract, 29.Google ScholarPollock did not cite Offord v. Davies. SeeMetcalf, , Law of Contracts, 191–220;Google ScholarLeake, , Elements of…Contracts, 25;Google ScholarStory, , Law of Contracts, 1:375Google Scholar.

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220. Ibid., 4.

221. Ibid., 202.

222. Ibid., 19.

223. Quotation is fromKelley, , “Holmes's Theory of Contract,” 1708n106Google Scholar.

224. The terms appear in[Holmes, ], “Review (1877),” 764;Google Scholar[Holmes, ], “Review (March 1880),” 233;Google ScholarAmes, , “…Langdell, 1826–1906,” 486;Google ScholarKelley, , “Holmes's Theory of Contract,” 1710Google Scholar.

225. Langdell's “official” view is well expressed in his 1871 letter to Yale President Theodore Woolsey: “The chief business of a lawyer is and must be to learn and administer the law as it is; while I suppose the great object in studying jurisprudence should be to ascertain what the law ought to be; and although these two points may seem to be a very kindred nature, I think experience shows that devotion to one is apt to give more or less distaste for the other.” C. C. Langdell to T. D. Woolsey, 6 February 1871, Theodore Dwight Woolsey Papers Yale University Library, Manuscripts and Archives, Box 23, folder 433.

226. White, , Holmes, 126, 113, 115;Google ScholarTouster, , “Holmes a Hundred Years Ago,” 687;Google ScholarAlschuler, , Holmes, 31–40;Google ScholarWhite, G. Edward, “Looking at Holmes Looking at Marshall,” Massachusetts Legal History 7 (2001): 63Google Scholar.

227. Quotation is fromReimann, , “Holmes's Common Law,” 104.Google ScholarSee, for example, 101–2 on Holmes's borrowing from Rudolf von Jhering.

228. Holmes, O. W., “Common Carriers and the Common Law,” American Law Review 13 (1879): 909. SeeGoogle ScholarWhite, , Holmes, 139;Google ScholarSmith, , “Believing Like a Lawyer,” 1069–86Google Scholar.

229. Quotations are fromWhite, , Holmes, 145, 150Google Scholar.

230. [Holmes, ], “Review (March 1880),” 234.Google Scholar

231. Langdell, , Summary of Contracts, 8.Google Scholar

232. Langdell, , “Partnership and Commercial Paper,” v. 1,Google Scholarleaves 56–60. Emphasis added.

233. Smith, , “Believing Like a Lawyer,” 1089.Google Scholar

234. Kelley, , “Holmes's Theory of Contract,” 1755.Google Scholar

235. Smith, , “Believing Like a Lawyer,” 1069n102.Google Scholar

236. Grey, , “Langdell's Orthodoxy,” 3. SeeGoogle ScholarTeeven, , A History of…Contract, 218;Google ScholarKelley, , “Holmes's Theory of Contract,” 1709–10Google Scholar.

237. See Siegel, Stephen A., “Joel Bishop's Orthodoxy,” Law and History Review 13 (1995): 215–59;Google Scholar“John Chipman Gray and the Moral Basis of Classical Legal Thought,” Iowa Law Review 86 (2001): 1513–99;Google Scholar“Francis Wharton' Orthodoxy: God, Historical Jurisprudence, and Classical Legal Thought,” American Journal of Legal History 46 (2004): 422–46Google Scholar.

238. Langdell's view of the alternative resembles the view outlined inFried, Charles, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation,” Yale Law Journal 85 (1976): 1060–89CrossRefGoogle Scholar.

239. Kimball, and Brown, , “Langdell on Wall Street,” 49–100.Google Scholar

240. Ibid., 83–94.

241. Only Reimann, , “Holmes's Common Law,” 265n167,Google Scholarattributes this review to Holmes, but does not cite any source or reason and seems to just have assumed authorship.

242. The author's editorial “we” would naturally refer to Holmes, who became the sole editor of theAmerican Law Review in June, 1872,Google Scholarshortly after the full volume of Cases on Sales was published. In addition, having already reviewed the 1870 and 1871 versions of Cases on Contracts, Holmes would have likely continued the assignment by reviewing Langdell's next casebook. Furthermore, the review begins by addressing “these casebooks,” as if resuming Holmes's earlier reviews of Cases on Contracts. [Holmes, ], “Review (1872b),” 145–46Google Scholar.

243. Several of the points and language are repeated from the earlier reviews. Headnotes “are wisely omitted” from the 1870 casebook, “are purposely omitted” from the 1871 casebook “in order to make the student find out the principle…for himself,” and “are all intentionally omitted” from the 1872 casebook “so that the learner may make them for themselves.” Similarly, the development of the index was repeatedly encouraged.[Holmes, ,] “Review (1871),” 539;Google Scholar“Review (1872a),” 353; “Review (1872b),” 145.

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246. [Holmes, ], “Review (1877),” 763–64.Google Scholar

247. Holmes was still editing the American Law Review, so the author's editorial “we” would naturally refer to him. In addition, having already reviewed Langdell's earlier casebooks, Holmes would have likely continued the assignment.

248. Calling this summary “most remarkable,” the reviewer said it “could only have been written by a great lawyer” and “shows the hand of a master such as has rarely appeared in our literature.”([Holmes, ], “Review (1877),” 763.)Google ScholarHolmes elsewhere commended Langdell's “remarkable powers,” called him a “great lawyer”([Holmes, ,] “Review (1872a),” 354)Google Scholarand maintained that “no man…can read a page of [his work] without at once recognizing the hand of a great master.” (Quoted inWhite, , Holmes, 197;Google Scholar[Holmes, ], “Review (March 1880),”c 233.)Google ScholarThe reviewer of Summary of Equity Pleading further stated, “We do not say that the reader will not hesitate over some of the author's conclusions.…Mr. Langdell is far too original a thinker.…His advance is too irresistible to be stopped by the occasional obstacle of a decision.”([Holmes, ], “Review (1877),” 763.)Google ScholarIn 1877, 1880, and 1881 Holmes likewise commented on “the originality” of the Summary. (Holmes to Langdell [3 March 1877] Oliver W. Holmes, Jr., Papers, Harvard law School Library, microfilm reel 14;[Holmes, ], “Review (March 1880),” 233–34; Holmes to Pollock (10 April 1881)Google Scholar.

249. [Holmes, ], “Review (1877),” 763.Google Scholar

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