Ten Reasons to Start Contracts with "Hairy Hand"
The Law Teacher, Volume 2, number 2 (Spring 1995), p. 3.
About the Author
N. O. Stockmeyer, Jr., is a professor of law at Thomas M. Cooley Law School. Contact him there at 217 South Capitol Avenue, P.O. Box 13038, Lansing, MI 48901, (517) 371-5140, FAX (517) 334-5748.
I began teaching Contracts in 1977 out of the third edition of Fuller & Eisenberg's Basic Contract Law, which led off with remedies and the case of Hawkins v. McGee, 146 A. 641 (N.H. 1929). Later I tried beginning with offer and acceptance, and with consideration, but always returned to what I enjoy most: starting the first class with "the Case of the Hairy Hand." Here are my top-ten reasons:
- The opinion immediately demonstrates to beginning law students the need for a law dictionary. The very first paragraph is largely meaningless without an understanding of such terms as "assumpsit," "writ," "count," "nonsuit," and "exception." Students need to know early on that the first-semester course offerings do not include Vocabulary 101. They must master the terminology on their own.
- The opinion shows how judges sometimes load their opinions with empty overstatements, such as "Clearly this and other testimony would not justify . . . ." and "It seems obvious that proof would establish . . . ." A close examination of the facts leads students to the realization that the matters under review were perhaps not so clear or obvious after all.
- The opinion articulates and demonstrates the process of analysis courts employ when authority for a specific rule is lacking. The appellate court tests the correctness of the trial judge's jury instructions by the use of general principles ("Nothing is so practical as theory," said Holmes) and by analogy to other classes of cases (but was the opinion's analogy to a chattel warranty apt?).
- The opinion allows an early exploration of some of the distinctions between tort (medical malpractice) and contract (promise of 100% success) in a context readily understood by beginning students.
- The issues in the opinion illustrate two of the central themes in contract law: the objective theory of contract formation (whose understanding controls?) and the expectation objective of contract remedies (in contrast to the tort objective of restoration).
- The opinion is an excellent introduction to remedies, which for several reasons is a good place to start the study of Contracts. It focuses on the difference between tort and contract damages, and between the expectation and reliance measures.
- The opinion offers an opportunity to illustrate that general principles are easier to state than to apply. How much is a perfect hand worth? And how much less is a scarred and hairy hand worth?
- Three words: The Paper Chase. Most students will have read the book or rented the movie. They expect their first class to begin with a study of the hairy hand case. Disappoint them the first day and they may begin to question their choice of law schools.
- The opinion has more pathos than the commercial disputes that will follow, thus helping start Contracts off on an equal footing with Criminal Law and Torts in human-interest value. (If you follow with Peevyhouse v. Garland Coal, 382 P.2d 109 (Okla. 1962) and Sullivan v. O'Connor, 296 N.E.2d 183 (Mass. 1973), you can keep abreast for the entire first week!)
- The case has a rich subsequent history that can be explored as time permits. See McGee v. U.S. Fidelity & Guaranty, 53 F.2d 953 (1st Cir. 1931), in which Dr. McGee loses a suit against his malpractice insurer, and Jorie Roberts, Hawkins Case: A Hair-Raising Experience, Harv. L. Rec., March 17, 1978 (offering a revealing look at the sad later life and death of George Hawkins).