Not Wrong, but Not Quite Right: A Reply to David Epstein

NOT WRONG, BUT NOT QUITE RIGHT: A REPLY TO

DAVID EPSTEIN

Bruce A. Markell*

AUTHOR—Professor of Bankruptcy Law and Practice, and Edward Avery Harriman Lecturer in Law, Northwestern Pritzker School of Law.

I write this reply with some trepidation. David is undoubtedly a great teacher. I first became aware of his prowess and teaching about thirty years ago. I was in Memphis at the Mid-South Commercial Law Institute with Jack Ayer, a former bankruptcy judge and law professor (and an all-around great guy). We found ourselves sitting in one of David’s sessions on, of all things, executory contracts.1 Jack and I were sitting in the back, of course, and we were trading comments as David droned on and on and on. And our comments weren’t particularly nice. We traded gibes about how David reduces things to the lowest common uninteresting denominator, and that no one with any appreciation for the beauty of bankruptcy could ever sit through David’s explanation without questioning their own sanity.

Eventually, David’s presentation ended. While Jack and I were waiting for the crowd to shuffle out, we noticed what people were saying as they were leaving: nothing less than unqualified praise. People said things such as, “That was the best I’ve ever heard,” “He’s the greatest,” and “I’d listen to him anytime, anywhere.”

Jack and I looked at each other somewhat quizzically as we heard this stream of praise. After a while, Jack said, “You know, we missed something.” And Jack was right. We missed how good David can be and how well he connects with an audience. He is the consummate teacher. I

learned then never to discount David’s raw talent, although I do discount his efforts at self-promotion.2

So, What can I possibly add to David’s thoughts on the first case in Contracts? Well, I think I can point out that David sometimes slips; as the saying goes, “Even Homer nods.”3 Being a coauthor with David for over twenty-five years on two casebooks, I have learned a fair bit about David. Much of this learning, unfortunately, has come from cautions and complaints given to me by more than one associate dean about material that David had somehow managed to insert into our Contracts casebook. It started with the time he snuck a seemingly anodyne internet URL in the notes after Hadley v. Baxendale, a famous Contracts case. As a somewhat irate associate dean told me, that URL led to a movie site which listed, in the cast of characters for a particular pornography movie, an actor named Hadley V. Baxendale. That URL was deleted from subsequent editions.4 We’ve had other similar concerns, some involving Sharon Stone and others involving pushing the limits of what my spouse calls our “sophomoric” attempts at humor.5

Those experiences lead, as the saying goes, to the maxim of “trust, but verify” when reviewing David’s contributions. And that led me to check what David has done in his article. I understand his thesis is that the best case to start Contracts with is R.R. v. M.H. On this point, I can’t quite say that David is wrong, but I can say he’s not right.

Let’s start out, however, with what he’s right about. He begins with the uncontroversial proposition that the first case a law student encounters has tremendous force and influence. David is correct there: I know of no lawyer

who doesn’t remember their first case in their first class in law school. It sets the tone; things either look up and students are energized, or it beats students down, leaving them with the sense that they may have chosen the wrong profession.6

So, the first case is important. David uses this apothegm to argue that R.R. v. M.H. is the best case for Contracts. To justify his choice, David then tries to analyze how he chose that case. His analysis states three things a first case should do.

First, he contends that the case should inform students as to what they will be doing in class, and how to prepare to discuss cases in that class. Second, he asserts that the chosen case should illustrate the close relationship between what law students do in law school and what lawyers do in the “real world.” And finally, his third point is that it should emphasize the role of law and lawyers in society.

I don’t have any real dispute with David’s first element: that cases should help students understand how they should be preparing for the welter of cases they will encounter in their law school experience. The first case should set the tone for what is to come.

I also don’t have much of a dispute with his second element: that there should be an example of a close relationship between law school and what he calls “the real world.” I agree generally with his sentiment here. Relevancy between law school and law practice is a noble goal. But at the same time, I disagree strongly with his use of the term “real world.” Law students, law professors, and practicing lawyers all live in the real world— we just live in different facets of it. I prefer to say, “the world outside of law school,” because for three years, students will be in a different world inside law school—one different from college and from what they will see in practice or whatever they may do after law school. Categorizing what practicing lawyers face as “the real world” would seem to emphasize the difference, not erase it.

My main dispute, however, comes with element number three: that the case should emphasize for students the role of law and lawyers in society.7 That sounds lofty. But it is a false loftiness. Why? Primarily, I think, because it is unnecessary. Law students often have a sense of what they’re getting

into in law school before they even get to the first class. They may have had lawyers in their upbringing. They may have talked to collegiate advisors about what to expect of law school. They may have read stories or seen news reports about lawyers. Their conceptions don’t need to be reinforced. Indeed, it may be a source of disgruntlement during and after law school, when they find that the vast majority of lawyers are not avatars for the poor or saviors of the discriminated and downtrodden. In short, students do not need their expectations reinforced on the first day. That will come naturally over the course of law school.

Moreover, I’m pretty sure that his third goal does not fit well with Contracts. Contracts is probably the most rule-bound course first-year students will experience. To understand Contracts, they will have to grapple with a complex and interconnected web of rules that often leads them to believe that they don’t know anything until they know everything. That is one of the challenges of teaching Contracts, but I think the earlier students realize that all classes are not alike, the better.

So, How does that intersect with David’s goal of showcasing policy? I think the problem is that showcasing policy in the first case gives a false impression that all contract law questions can be resolved by an initial recourse to policy. While I don’t deny that there is policy in contract law, the role of policy ascends only when the rules or statutes fail to cleanly answer a problem. Rules first; policy next. The rules of contract law have been developed over centuries in an effort to capture the common understandings of how humans generally interact. This counsels for an introductory case that showcases rules over policy.

What would I start with? My choice is influenced by my experience. I started law school in the fall of 1977, and my Contracts casebook was the 1969 edition of the Dawson and Harvey casebook.8 The first case I studied was Groves v. John Wunder Co., a contract remedies case that shows the limits of contract law’s forward-looking remedial scheme.

I understand that now. But I had no clue when I sat in class that first day. Our instructor, then the new dean of the law school, called on a student to recite the facts. That student then proceeded to delve into the facts for literally fifteen minutes. Some of us kept track. At the end of it, the professor looked at him, put his hands together in a slow clap, paused, and then asked someone else a question about the facts. We all looked at each other at that

point—silently wondering what we were getting into.9 I would have benefited from more of a focus on the rules and their context in contract law. I certainly did not benefit from the case—in fact, it soured me on Contracts for my whole first year. I still blame Groves v. John Wunder Co. for the fact that Contracts was my worst grade in law school.10

So, What is my candidate? Lucy v. Zehmer.11 It is in the casebook David and I wrote with Larry Ponoroff but does not appear first. R.R. v. M.H. does. David won that battle. But I just skip R.R. v. M.H. and go directly to Lucy.

Why is it better? Well, first the facts. Zehmer ran a combination restaurant/gas station/garage in Virginia. He also owned a farm nearby. Lucy coveted the farm. At Christmastime, Lucy showed up at Zehmer’s restaurant with a bottle of booze and started sweet-talking Zehmer into selling the farm. This was not the first time the two had met; Lucy and Zehmer had prior agreements regarding the farm, but Lucy could not enforce them because they were not in writing. The parties talked back and forth until the deal, such as it was, was written down on the back of a blank copy of one of the restaurant’s guest checks. Lucy then got Zehmer’s spouse to sign, and as soon as it was signed, Lucy picked up the guest check and said he’d get the money to Zehmer once the title checked out. Zehmer objected, saying it was all a joke between them; he never intended to sell the farm. As the court recounted, “Zehmer claimed that he ‘was high as a Georgia pine,’ and that the transaction ‘was just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most.’”12

The court ultimately dismissed Zehmer’s claim. In short, the court found that the deal was no joke. The parties were not so intoxicated that they did not know what they were doing, as evidenced by Zehmer’s detailed recounting of events. In short, the court found that Zehmer simply had seller’s remorse.

The court could have stopped there, but it didn’t. It then also stated that even if Zehmer had been joking, he would have lost, giving a short précis on the objective theory of contracts to demonstrate that conclusion.

If I borrow David’s three characteristics of a good starting case, as I might amend them, they show that Lucy is superior. First, it’s a good case, not only for doctrine, but for demonstrating the necessity of a close reading for holding and dicta. The reason we put it in our casebook is not only to introduce the objective theory of contracts, but also to show that the court discusses the objective theory in dicta, rather than holding. Skill in making this distinction is one that good law students and good lawyers must have.

The case also has within it an embedded and short discussion of incapacity, which beginning students struggle to identify and understand. Identifying this discussion serves two purposes: it furthers the goal of closely reading cases and shows how a court can adroitly and succinctly dispense with a plausible theory unsupported by the facts. This introduces students to how courts work, to how lawyers make arguments, and to how those arguments are either accepted or rejected.

It also meets David’s element number two. To be blunt, the characters and the participants in Lucy are far more representative of the types of clients that lawyers will come across in their future cases and careers than those present in R.R. v. M.H. Disputes about facts are ever-present in the workaday world of lawyers, and lawyers have a reputation for making large points out of small discrepancies.13

And disputes both common and unusual permeate Lucy. They arise from an interesting and engaging set of facts that may be a little bit off the beam, but with a concrete result. You leave Lucy understanding that every court presented with those facts would likely find for Lucy; R.R. v. M.H. does not leave one with similar certainty.

This certainty of result is all the more remarkable because the contract at issue is but seventeen words written on the back of a restaurant’s blank guest check. Many students are troubled by this. Many, if not most, beginning law students think a contract is a formal writing complete with “party of the first part,” “party of the second part,” and finished off with a generous frosting of “wherefores” and “hereinaboves.” In Lucy, though, the court validates a contract that is written on the back of a guest check, thereby introducing students to the universality of contract’s rules in even the most common of settings.

As I said above, I disagree with David’s policy emphasis in his element three. And there’s not much policy in Lucy. But then again, as I said above, I don’t think an initial emphasis on policy is the best use of a first case in Contracts. I prefer not to teach top-down—policy X leads to result Y—but

from the bottom-up—cases X, Y, and Z show that contract law adopts policy A. That’s a skill more prevalent among lawyers; top-down is the realm of policy wonks and politicians.

Lucy v. Zehmer facilitates this bottom-up analysis. It does this by showing a common dispute in an unusual setting. In so doing, it runs counter to students’ formalistic notions of which promises should be enforced. By setting the table with an enforceable skeletal document, students are forced to recognize and test their preconceptions. This type of beginning gets them ready for the disruption and dissolution of other false beliefs, such as how the parol evidence rule works or how they can be bound by those everpresent and frustrating boxes that pop up every time they install new software or click on a button on Amazon.

It even shows, like Akira Kurosawa’s movie Rashomon,14 that people often have drastically different views of what they saw or heard without necessarily lying about what they remember. As I have often said, this forces students to realize that judges are sometimes no different than fallible lie detectors.15

Finally, for the adventurous, both the case files for Lucy16 and scholarly commentary about details that are not part of the public record17 exist on the internet. The opportunity exists to learn that cases are much more than what is reprinted in casebooks.

So, Where does all this wind up? In deference to David, he is free to start with R.R. v. M.H., as is any Contracts professor. That’s where I would say David is not wrong. But he is not right that R.R. v. M.H. is better than Lucy v. Zehmer. Lucy is closer to what students will experience both in law

school and in practice. There are more and richer materials available for exploration either at the students’ whim or the law professor’s. It introduces some foundational theories (such as the objective theory of contracts) early on and in the context of a fairly garden-variety dispute.18

Finally, Lucy is funny—or at least can be made to be funny¾and relatable. That disarms some, but it also alerts students to the fact that they should be reading a little bit more carefully than they did in undergraduate education. In the law school classroom, questions come hard and fast. Ultimately, though, I believe teaching is an extension of one’s personality. David probably can teach R.R. v. M.H. and have his students remember it forever. I think most of us, however, do better with Lucy v. Zehmer.

--- FOOTNOTES ---

Copyright 2025 by Bruce A. Markell Northwestern University Law Review

* This article is a reply to David G. Epstein’s R.R. v. M.H. and Steve Goodman and John Prine: The First Case a Law Student Should Read, 119 Nw. U. L. Rev. Online 300 (2025), https://scholarlycommons. law.northwestern.edu/cgi/viewcontent.cgi?article=1352&context=nulr_online. For background, David Epstein and I have been coauthors (with Lawrence Ponoroff) on six editions of a Contracts casebook. DAVID G. EPSTEIN, BRUCE A. MARKELL & LAWRENCE PONOROFF, CONTRACTS: MAKING AND DOING DEALS (6th ed. 2022). Despite the tone, and maybe the substance, of this reply, David has been nothing but patient, kind, and fair with me during the twenty-five years we’ve worked on this casebook.

1 11 U.S.C. § 365. David has written a few cogent pieces on the subject. See, e.g., David G. Epstein, Fixing § 365: The Congressional Fix, 22 AM. BANKR. INST. J. 6 (2003); David G. Epstein & Steve H. Nickles, The National Bankruptcy Review Commission’s Section 365 Recommendations and the “Larger Conceptual Issues”, 102 DICK. L. REV. 679 (1998).

2 Epstein seems obsessed with being a “law school legend.” David G. Epstein, Foreword: A Few Lines to Bankruptcy 2.0(05): Chapters, Changes, and Challenges, 55 AM. U. L. REV. 1291, 1291 n.* (2006).

3 The phrase in Latin is: Indignor quandoque bonus dormitat Homerus. It comes from QUINTUS HORATIUS FLACCUS, ARS POETICA ll. 359 (c. 18 BC). It is translated, somewhat loosely, as: “Even Homer nods.” This translation is often attributed to Alexander Pope’s An Essay on Criticism but has its origins in John Dryden’s preface to The State of Innocence, and Fall of Man. See Alexander Pope, An Essay on Criticism, POETRY FOUND. (Oct. 13, 2009), https://www.poetryfoundation.org/articles/69379/an-essayon-criticism [https://perma.cc/NM8H-HKT8]; JOHN DRYDEN, THE STATE OF INNOCENCE, AND FALL OF MAN B1 (1677). It’s a phrase well-suited to academics: short, pithy, slightly oracular, and with traces of ancient wisdom. It generally refers to an error, usually of continuity, committed by one who is thought to be infallible. Horace had noticed the reappearance of a character in the Iliad whom Homer had killed off previously.

4 I’m not going to tell you what the movie was—that would just perpetuate David’s mischievousness. When it was pointed out to me, it came as a surprise. That led me and our mutual (and long-suffering) coauthor Larry Ponoroff to check everything that David does. To this day, I don’t know how David learned of the site, and at this point, I don’t want to know.

5 My spouse is also a law professor (and a much smarter and better one), who has her own set of Contracts teaching materials which—in all candor—are probably better than the casebook I coauthor with David.

6 I fell into the latter category. See infra text accompanying notes 9–10. 7 To be clear, I think imbuing students with the historic roles of lawyers is fine. It echoes in some respect the Shakespearean quote from Dick the Butcher, who said: “The first thing we do, let’s kill all the lawyers.” WILLIAM SHAKESPEARE, HENRY VI, PART 2 act 4, sc. 2, l. 75. Although the line looks to abjure lawyers, it is said in the context of a mob plotting to overthrow the government. Dick utters the line in recognition that lawyers hold positions of influence and power which maintain order and the benefits of a civil society, and that they stood in the way of mob rule.

8 JOHN P. DAWSON & WM. BURNETT HARVEY, CASES ON CONTRACTS AND CONTRACT REMEDIES (2d ed. 1969). That casebook is now in its eleventh edition. JOHN P. DAWSON, WILLIAM BURNETT HARVEY, STANLEY D. HENDERSON & DOUGLAS G. BAIRD, CONTRACTS: CASES AND COMMENTS (11th ed. 2019). That casebook no longer starts with Groves.

9 During the student’s recitation, I kept hearing the word “breach,” so I wrote it down, spelling it BR-E-E-C-H. The person sitting next to me, Francisco Zarate, who recently retired as the Chief Deputy District Attorney of Butte County in California, said, “You know, it’s breach spelled B-R-E-A-C-H.” It is an understatement that my start was a little rocky.

10 The student who received the best grade in the class was (and is) a very good lawyer and venture capitalist. With his spouse, he was (and is) a very generous donor to the law school. Perhaps I should have shaken off my distaste for Groves and studied harder.

11 84 S.E.2d 516 (Va. 1954). 12 Id. at 520; see also id. at 519 (quoting Lucy saying, “I was already high as a Georgia pine, and didn’t have any more better sense than to pour another great big slug out and gulp it down, and he took one too.”).

13 That disturbs some. Indeed, upon hearing my decision to go to law school, my paternal grandfather threatened to disinherit me because, as he said: “It is no way to live your life with half the people against you all the time.”

14 RASHOMON (Daiei Motion Picture Co., Ltd. 1950). The film, by legendary director Akira Kurosawa, won the Academy Award for Best Foreign Language Film in 1952. It recounts an assault and killing from four different—and completely irreconcilable—perspectives, leaving the perpetrators of the crimes—and indeed the existence of the crimes—unresolved. The result disturbed the three assistant directors on the film. Kurosawa’s response was that “[h]uman beings are unable to be honest with themselves about themselves. They cannot talk about themselves without embellishing. This script portrays such human beings—the kind who cannot survive without lies to make them feel they are better people than they really are.” AKIRA KUROSAWA, SOMETHING LIKE AN AUTOBIOGRAPHY 183 (Audie E. Bock trans., Vintage Books 1982).

15 It also shows, I think, that students need to consider that over time, numbers that one reads in cases have to be inflation-adjusted to truly understand the nature of the parties’ fight. Students perk up a bit when they see that the $50,000 Lucy agreed to pay is worth about $600,000 today—which makes the fact that the whole contract is contained on the back of a guest check all the more jarring. See CPI Inflation Calculator, U.S. BUREAU OF LAB. STAT., https://www.bls.gov/data/inflation_calculator.htm [https:// perma.cc/C5UT-CWZ2].

16 Lucy v. Zehmer Chancery Number 131, DINWIDDIE CNTY., https://www.dinwiddieva.us/1322/

Lucy-v-Zehmer-Chancery-Number-131 [https://perma.cc/NLU6-7MXN].

17 Barak Richman & Dennis Schmelzer, When Money Grew on Trees: Lucy v. Zehmer and

Contracting in a Boom Market, 61 DUKE L.J. 1511 (2012).

18 It also appears in many more Contracts casebooks than does Epstein’s case. See Keith A. Rowley, You Asked for It, You Got It . . . Toy Yoda: Practical Jokes, Prizes, and Contract Law, 3 NEV. L.J. 526, 527 n.7 (2003) (noting that Lucy v. Zehmer “appears as a principal case in ten of the fifteen contracts casebooks” published between 2000 and 2003 and “is discussed in a lengthy note . . . in an eleventh”).