Thursday, December 17, 2009

Contract Law is not a map but, rather, a set of maps, some of which work in some situations, and some of which work in others.

Jeff Lipshaw of Suffolk Law School has been asked to teach Suffolk's six credit contracts course next year and has "been puzzling . . . about . . . teaching philosophy." As he claims, "Contracts is the often the bane of the first year experience, and I am thinking about hitting the reasons head on." I think Lipshaw's point is the same I've been trying to get across frequently in this course -- learning law (and perhaps, especially, contract law) is not a matter of learning rules you apply to the world, thence to go on your merry way as a lawyer who knows and understands law. Rules are useful guides, but different rules are useful in different situations; when a situation changes, a particular rule may be useless -- it may be too specific, and not take into account specifics never contemplated when the rule was formulated, or it may be too general to be of any practical use.

Lipshaw writes (emphasis added):
I've concluded instead that the way to approach the subject (and relieve some student angst at the same time) is to reject at the outset the idea that what they are learning maps on the real world. It is more helpful to think of contract law as most casebooks begin - with the idea of the objective law of contracts, or, as we say more explicitly in areas like partnership, the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. . . . Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No - an integrated law of contracts, if one exists, is a figment of the . . . imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).

Put otherwise, if the reality of private ordering is metropolitan Boston, contract doctrine is a map, based on the mapmaker's view of what is important. But you could have a road map of major highways, a topographic map, a detailed street map, a map of population densities, etc. This is merely one map, or several competing maps. . . . .

Finally, the difficulty with putting aside whatever sense of reality we might have, and reconstructing the rules of the model (or game?) on their own is a little like trying to master the rules of cricket without making analogies to baseball, or the rules of rugby without making analogies to American or international football. Let's say you are playing cricket, and you do something that cause the other team to cry "foul!" You have to make your argument why what you did was legal in cricket terms, not baseball terms. That doesn't mean there couldn't have been other ways to play cricket, or that the world would be better off if we interpreted the rules of cricket differently, but to win the argument we have to fashion it in a way that appears to be consistent with cricket. Contract law is the set of rules making up the objective contract litigation game, and some arguments based on those rules are cricket, and some are not.
A map that I draw you to get you to my house will likely be of little use in helping you navigate your way to other places in Ohio, but it will be very helpful as a means of getting you to my house. Then again, most maps of Ohio I've seen would be of little use in getting you to my house (which is on a road leading from one side street ending in 2 other side streets, none of which lead to a street (much less a highway) of any significance). And I could explain to you how being offside in soccer is akin to being offside in hockey, and doing so would help you understand the common purposes of the 2 rules (to avoid cherry picking), but when I'm arguing about being offside in soccer I better not be using rules and jargon from ice hockey.

Or, if you'd like to get even more involved in considering the role of maps in understanding the uses and abuses of rules, it's well worth considering an article written by Boaventura De Sousa Santos, Law: a Map of Misreading. Toward a Postmodern Conception of Law, 14 J. of Law and Society 279, 282-283 (1987)(footnotes omitted; hyperlinks added):
The main structural feature of maps is that in order to fulfill their function they inevitably distort reality. The great Argentinian writer Jorge Luis Borges has told us the story of the emperor who ordered the production of an exact map ofhis empire. He insisted that the map should be exact to the most minute detail. The best cartographers of the time were engaged in this important project. Eventually, they produced the map and, indeed, it could not possibly be more exact, as it coincided point by point with the empire. However, to their frustration, it was not a very practical map, since it was of the same size asthe empire.

To be practical a map cannot coincide point by point with reality. However, the distortion of reality thus produced will not automatically involve the distortion of truth, if the mechanisms by which the distortion of reality is accomplished are known and can be controlled. And, indeed, that is the case. . . . As the American cartographer Mark Monmonier put it:
[A]ll advantages and limitations of maps derive from the degree to which maps reduce and generalise reality, compress or expand shapes and distances and portray selected phenomena with signs that communicate without necessarily resembling visible or invisible characteristics of the landscapes. The three elements of a map are interdependent. Scale influences the amount of detail that can be shown and determines whether or not a particular kind of symbol will be visually effective.
Maps should be convenient to use. There is thus a permanent tension in maps between representation and orientation. These are contradictory claims and maps are always unstable compromises between them. Too much representation may hinder orientation, as we saw in Borges’s map. Inversely, a very accurate orientation may result from a rather poor and elementary representation of reality.
When you are invited to a party in a house whose location you do not know, the host will probably draw a map which will be very effective in orienting you though very inaccurate in representing the features of the environment along the way to your destination. One more example: some of you may have seen medieval portolans, those maps of ports and coasts well-renowned in the Middle Ages which, though very poor as far as representation of the globe goes, were very effective in orienting navigators .at sea. There are maps that solve the tension between representation and orientation in favour of representation. These I would call, borrowing from French cartography, image maps. Other maps solve the tension in favourof orientation. These are instrumental maps.
I would like to suggest that this dialectic of representation and orientation applies to law as much as it applies to maps. In the analysis of .the relations between law and society we should [consider] the simple paradigm of correspondence/non-correspondence. In the following I will linger on maps a little while to analyse in more detail each one of the procedures through which maps distort reality. In the process I hope to interest you in the fascinating world of maps. As Josef Konvitz has said, "lt is a supreme irony that maps, though they are one ofthe most common cultural metaphors, are still far from occupying the place they deserve in the history of mentalities."
One common distortion of which most of us remain unaware is the ways the traditional mercator projection of the map of the world grossly distorts the relative sizes of the earth's various landmasses. Below, from Temple 3, is the Arno Peters map, which isn’t perfect (every map (and rule) creates some distortion) but does address some of the overall size distortions which dominate our more well-known Mercator projections:

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