The following is guest post by Richard Hyland (below), Distinguished Professor at Rutgers Law School
In his contracts course, Friedrich Kessler often discussed cases in pairs. As I taught from his casebook, I eventually found something to say about many of those pairs, but I was always stumped when I tried to reconcile Mills v. Wyman with Webb v. McGowin. Why was there consideration in the one but not in the other?
A few years ago, I decided to dig deeper into the background of the three celebrated moral consideration cases—Mills, Webb, and Harrington v. Taylor. I took a look at the archives and spoke with those who still remember the parties and the places.
The Mills case file is in Boston. To learn more about Harrington, I spent time in Hamlet and Rockingham, North Carolina. A vast documentation about the W.T. Smith Lumber Company and life in Chapman, Alabama, is preserved in archives in Tuscaloosa and Montgomery, and the case file is there too. All three cases now look very different to me. I am pretty sure that Webb did not save McGowin’s life and also that McGowin did not promise Webb a lifelong pension.
I tell the stories of the three cases in my new book, Common Law Judging and the Great Tradition. It was just published open access by Springer. A pdf can be downloaded here:and here is info about a symposium to be held on October 29.
The book’s larger goal is to describe something of what we know of how common law judges decide cases. I often asked Kessler about that after class. He never answered, of course, but he always had a book recommendation for me—the classic texts of Weber, Blackstone, Holmes, Cardozo, Maitland, and Llewellyn.
I eventually understood why Kessler recommended them. When read together, they offer a good sense of how judges reach their decisions. And more recent texts complete the picture—work by Hart and Sacks, Posner, Gilmore, Duncan Kennedy, Roberto Unger, Mary Joe Frug, Patricia Williams, and Ian Macneil. Common Law Judging explores the dialogue that these books engage in with each other.
My book’s main goal is to discover what we can learn from each of these texts about how to decide Webb v. McGowin. Though the authors disagree with each other about nearly everything, I believe that they might all acquiesce in the court’s decision—or at least they would not object too strenuously. In the course of the discussion, the traditional distinctions between schools and theories fall away, and these books show themselves to be part of a single, quite extraordinary conversation.
Chapter 17 retells the backstories of the three cases against the background of archival research. That same chapter also suggests how the different jurisprudential approaches might resolve the three moral consideration cases as they now present themselves. For those who already know something about the field, that might be the right place to start.
If you get a chance to look at the book, please let me know what you think.
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