Friday, March 11, 2016

The Mayflower and Modern Contract Law

Here is the abstract for my latest yet to  be written article, the title of which is the title of this post.

Clearly all we now know about third party beneficiaries can be directly connected to one particular incident on the Mayflower. The same is true of the Statute of Consequence and the Contractual Contraction. This article explores the concepts and the evolution of events that led to their widespread adoption. This  effort is challenging because not that many people who travel on the Mayflower left a record of exactly what went on aboard. In fact most, if not all, of those aboard have now passed away. One thing that as become clear, though, is how much American contract law owes to the 102 brave souls aboard the Mayflower.

This is a new direction in my legal research and, with all due humility, legal research generally. First, no theory. When you are at a mid level school and went to a School that is rapidly becoming mid level no one will published your article that includes theory. I have heard this directly from editors. This is both good and bad. The good part is review editors are risk averse and have a chance of correctly assuming that people who went to so so state law schools know anything about theory. The bad part is that they assume a professor who attended and teaches at a  top level law school does know anything about theory. They do not understand that name brand schools to do not guarantee that the author is going to say anything anyone will remember even for a day or even  minute or read at all.

OK, so no theory. Just as important, almost no footnotes. Where are you going to find sources that provide information about contract law aboard the Mayflower. Oh, I know there is a fair amount of information in the Kingly piece, Tibor Kingsly, "The Mayflower's Lifeboat," 12 North Suffolk L. Rev. 211 (1875), but beyond that not very much. No footnotes is both good and bad. The good part is that there will be no footnotes that exist just to be footnotes. Also, no "see also," see i.e,", or whatevers that were merely lifted from other articles. The bad part is that most of the article will be made up. But when you think about it, that is actually good or at least no worse than what is published in law reviews already.

Yes, I am talking about the totally made up fantasy article that exists because it just might be true. Maybe Miles Standish and his wife did make a deal with John Alden to benefit John Langmore. And maybe not. The thing is that that is the way all law review articles should be read.  Maybe right and, if so, by coincidence or maybe dead wrong. This is because  most law review articles advocate a position and the sources are carefully selected to appear to  support what is said.  In short, most are just made up with the author blind to opposing views.

In the case of my careful Mayflower work, I am not blind to opposing views. I am open to them and will report them as soon as I make them up.

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