Poke Your Nose into Your Clients' Businesses (If You Want to Understand their Contracts)

Thirty years ago Grant Gilmore argued that “Contract” was dead. This lecture, delivered as 2004 Godfrey Scholar-in-Residence at the University of Maine School of Law, considers the cause of death. Since the expired doctrines arose in a common law process, the lecture argues their demise resulted from the failings of lawyers, especially lawyers' commitment to wooden, formalist legal methods. I explore some of the reasons why lawyers became committed to these methods, and argue that even were nineteenth-century formalistic practices resurrected, modern lawyers must still be prepared to understand the potential effects business contexts might have in contract disputes and negotiations.

To prepare themselves, lawyers must give up legalistic, formal method and become willing to learn something about their clients' businesses. The lecture concludes by suggesting that sensitivity to social context is a likely requirement of effective lawyering, not merely when dealing with contracts, but in practice involving construction of legal texts generally.