In the late nineteenth and early twentieth centuries, scholars seeking to bring order to the common law developed what has since become known as classical contract law. Its leading architects were Christopher Columbus Langdell, Oliver Wendell Holmes, Jr., and Samuel Williston, and their efforts involved seeking to provide an objective foundation for contract law. Any idea, however, that these three worked in coordination to create classical contract law would be mistaken. Holmes is considered a relentless critic of Langdell, and even Williston distanced himself from Langdell. This Article identifies in what ways Holmes and Williston differed from Langdell in their approach to contract law and, to do so, focuses on the doctrine of consideration, the foundation upon which classical contract law was built. This Article concludes that, as a result of these differences, classical contracts scholars’ quest to create an objective foundation for contract law that could withstand erosion was doomed to fail. First, the leading architects did not agree on a fundamental concept—a theory of law. The disagreement between Langdell and Holmes about the nature of law (logic versus experience) virtually ensured they would be unable to agree on something like the meaning of consideration and would thus be unable to agree on a foundational theory of contract law. Second, even when the architects sought to construct principles upon the same foundation (logic), the foundation proved unable to provide a clear answer to the meaning of consideration.
Daniel P. O’Gorman,
Langdell and the Foundation of Classical Contract Law,
70 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol70/iss3/6