In this post, NLR blogger Stewart Macaulay responds to Marc Galanter’s comments here (as Guest Blogger in January 2016) about the University of Chicago Law School in the mid-1950s.
Marc and I met when we both were appointed as Bigelow Teaching Fellows and Instructors in 1956-57. Marc has been a great friend and someone I have admired for almost 60 years. I have no quarrel with anything that Marc wrote in his comment about our time at Chicago.
Our experiences overlapped but differed. Marc can write about being Karl Llewellyn’s student because he went to the University of Chicago Law School. I went to Stanford and then I was Chief Judge William Denman’s law clerk on the Ninth Circuit. As far as I could see when I was at Chicago, Llewellyn then was focused on his theories about “the common law tradition.” It was classic legal realism that dealt with appellate judges. After a year of looking at United States Circuit Judges in full flight as they reviewed the work of District Judges, I had my own views about that. Later I was to find out that I only had seen one part of Llewellyn’s ideas.
Some time after Marc joined the Wisconsin Law School faculty, we were walking home together. We observed that, between us, we had gone to three important law schools at about the same time (Marc went to both Pennsylvania and Chicago). We noted that we had heard not one word about plea bargaining or settlement of personal injury cases in our classes.
As Marc indicated, a lot was going on at Chicago when we were there together. The Jury and the Arbitration Projects were major undertakings. We heard talks about them, and I met many people working on them. Law and economics was beginning to have its own turf at Chicago. However, there were other people doing things that we tend to forget today.
Nick Katzenbach had come to Chicago from Yale. He wanted to develop materials for a course in legislation. Most Bigelows taught legal writing. I did some of that, but I was also assigned to work with Nick. I was something between a research assistant and a very junior co-author. Nick had the material developing the theories about the legislative process. He wanted to get behind outward appearances and offer material about how it really worked. He was very interested in the role of lawyers who worked backstage for governors and for legislative leaders. They had contacts and high political skills. Added to this group were the members of the legislative staffs who understood the deals that had prompted various provisions in the state statutes as well as how all the pieces fit together. Nick sent me off to the University library to try to track down what had been published about such things. I found some material, but Nick and I thought that we had identified a major research project that needed to be done. We discussed the problems of studying what lawyers actually did when so much of it depended on contacts, favors owed over time and other things better kept hidden. As a member of the Stanford Law Review, I had written and edited notes about cases. As a law clerk, I had written memos about appeals from trial courts and administrative agencies. Nick had previously pushed me into work about law but not about rules and appeals. Only a few years later, Nick would leave Chicago to join the Kennedy and then Johnson administrations. He went from studying lawyers playing these political roles to doing it for two presidents. (There is a famous picture of Governor George Wallace standing in the doorway to the University of Alabama symbolically blocking its integration. Wallace was a small man. The very large man who represented the United States was Nick Katzenbach.)
My mentor at Chicago was Malcolm Sharp. He taught contracts. I had first seen his name when Harold Shepherd, my Stanford contracts professor, handed out to our class reprints of Franklin Schultz’ “The Firm Offer Puzzle.” This was one of the first empirical studies in the area of contracts. Those bidding on building construction contracts only made offers and not binding contracts by their bids. Both those bidding and those receiving the bids thought that one should stand behind a bid and not back out once the one receiving it had relied on it. Schultz advocated changing contract law to make the bids enforceable. Sharp commented on the study to our class. He liked the empirical work, but he didn’t think that Schultz had established that other-than-legal normative and sanction systems were inadequate.
I hoped to become a contracts teacher, and I talked with Sharp. We discovered that my father-in-law had been a close friend of Sharp’s when they attended the University of Wisconsin. My wife and I managed to get them together again.
I was hired at Wisconsin. During the summer before we moved to Madison, I sat in on Nick Katzenbach’s contracts class. He used Kessler and Sharp as his casebook. I got to hear Nick’s take on Malcolm’s ideas. I took lengthy notes. Then Nick got the flu, and I got to teach the class for a week. I think that I managed to hide my terror and case of the “impostor syndrome” as I faked it. But the experience made it easier to begin as a 26-year-old contracts professor at Madison.
We used Lon Fuller’s contracts casebook at Wisconsin. Fuller had written a famous article distinguishing the various interests that contract remedies might protect — the expectation, the reliance, and the restitution interests. Protecting the expectation interest involved putting the aggrieved party where he would have been had the contract been performed. Jack Ramsey, my father-in-law, was the retired CEO of S.C. Johnson & Sons. He asked me what I was teaching in contracts, and I told him about the expectation interest. Jack exploded. “If you ever have to sue for a breach of contract, you will not be where you would have been had the contract been performed!” He told me that Johnson had bought containers for its products from three suppliers in the early 1930s. When the great depression hit, Johnson worked to place its orders with the supplier that needed the order most in order to stay in business. It did not stage a reverse auction and push the suppliers to engage in a bidding war. Jack said that this was right morally. Moreover, he pointed out that six or seven years later, we were in World War II. Steel was rationed, and containers for consumer products did not have a high priority. But Johnson never wanted for a can. “The suppliers owed us one!” Jack said that I might think that this was just his eccentric behavior. He called several of his friends who worked for major corporations. I was on my way to becoming an empirical researcher. [Here Macaulay refers to the famous study he subsequently conducted on “Non-Contractual Relations in Business,” published in the American Sociological Review.] Fortunately, I had a wife who was well into her graduate studies in social psychology. She kept her husband from making too many screaming mistakes.
Willard Hurst had a series of grants that he used to develop a new kind of research at Wisconsin. He insisted that we had to get away from appellate cases and study law as delivered. He used the grant funds to buy research semesters and summers for younger faculty. Essentially, your job was to read, and Willard would supply suggestions. I worked my way through such thinkers as Weber, Parsons, Merton, and Malinowski. Now I also read Karl Llewellyn, particularly The Cheyenne Way [with E.A. Hoebel].
Out of all of this, I fashioned the first drafts of my “Non-Contractual Relations” article. I sent a copy to Malcolm Sharp, and he invited me to visit him at Chicago. We took a long walk along Lake Michigan and talked. He had all kinds of ideas and suggestions which proved to be very valuable. But just as valuable was the reassurance that I was doing something worth doing. Sharp also had given a copy of my draft to Harry Kalven who was the head of the Jury Project. Kalven was a torts teacher who saw that doctrine in his area was hardly enough to account for how law dealt with accidents, crimes, and the like. Kalven was extremely encouraging and he too offered valuable suggestions. Some years later when I was awarded a Hilldale Professorship at the Univeristy of Wisconsin, I was entitled to name it after someone in my field with some connection to Madison. I became the Malcolm Pitman Sharp Hilldale Professor. It was a way of saying thank you for reassurance when I needed it. After all, in the late 1950s other young professors were not interviewing lawyers and businessmen. And they weren’t suggesting that contract law played an important role only in a limited group of situations. Later I also won the Harry Kalven Prize from LSA. A prize named after Kalven had special meaning for me.