what is black letter law in contracts

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
bartleby
Posts: 1315
Joined: Thu May 29, 2008 3:23 am

what is black letter law in contracts

Postby bartleby » Thu Sep 01, 2011 6:27 pm

I think I know what black letter law in torts is now...

still not sure what it is in contracts or civ pro...

is it the rules? the restatement? statutes? someone throw me a frickin bone

User avatar
ggocat
Posts: 1662
Joined: Sat Dec 13, 2008 1:51 pm

Re: what is black letter law in contracts

Postby ggocat » Thu Sep 01, 2011 8:05 pm

BLL is everything. I mean, it's just a short-hand phrase for law that is generally accepted in all or most jurisdictions.

In K, your sources will be cases and restatements for services and the UCC for sales.

In civ pro, your sources will be the FRCP, cases, and a few federal statutes.

edit: http://en.wikipedia.org/wiki/Black_letter_law

User avatar
Redzo
Posts: 112
Joined: Wed Aug 31, 2011 5:27 pm

Re: what is black letter law in contracts

Postby Redzo » Fri Sep 02, 2011 12:43 am

My Contracts professor told us that in his class, we are to refer to the Restatement as if it were a statute.

User avatar
TTH
Posts: 10380
Joined: Mon May 04, 2009 1:14 am

Re: what is black letter law in contracts

Postby TTH » Fri Sep 02, 2011 1:13 am

Redzo wrote:My Contracts professor told us that in his class, we are to refer to the Restatement as if it were a statute.


After spending just a little bit of time out in the real world, I find it a little annoying how much law school relies on the Restatements. I guess there's no other way to conveniently teach all the different common law concepts nationwide. Nonetheless...phooey.

target
Posts: 688
Joined: Tue Jul 26, 2011 6:40 pm

Re: what is black letter law in contracts

Postby target » Fri Sep 02, 2011 1:54 am

TTH wrote:
Redzo wrote:My Contracts professor told us that in his class, we are to refer to the Restatement as if it were a statute.


After spending just a little bit of time out in the real world, I find it a little annoying how much law school relies on the Restatements. I guess there's no other way to conveniently teach all the different common law concepts nationwide. Nonetheless...phooey.


Just curious, would you say the same for the U.C.C? And what do people use instead of the Restatement? cases?

User avatar
TTH
Posts: 10380
Joined: Mon May 04, 2009 1:14 am

Re: what is black letter law in contracts

Postby TTH » Fri Sep 02, 2011 3:11 am

target wrote:
TTH wrote:
Redzo wrote:My Contracts professor told us that in his class, we are to refer to the Restatement as if it were a statute.


After spending just a little bit of time out in the real world, I find it a little annoying how much law school relies on the Restatements. I guess there's no other way to conveniently teach all the different common law concepts nationwide. Nonetheless...phooey.


Just curious, would you say the same for the U.C.C? And what do people use instead of the Restatement? cases?


Nah. The UCC, for the most part, is real law. It's been adopted wholesale by states. So, with a few exceptions, you can pull up the commercial code of a state and it's identical or nearly so to the UCC. Uniform and Model Acts are great. The problem with the Restatements are, since it's common law, courts have been developing their own concepts for decades. In some cases, concepts in the RST may not even be common law, instead it might be statutory law in a given state.

It's a minor beef, and like I said, I don't know how else a law student could teach the basic concepts in tort/K's without being state-specific but for the restatements. But they [RSTs] really represent a collective statement by the academy that they know better than the working legal world.

User avatar
ggocat
Posts: 1662
Joined: Sat Dec 13, 2008 1:51 pm

Re: what is black letter law in contracts

Postby ggocat » Fri Sep 02, 2011 10:24 am

TTH wrote:
Redzo wrote:My Contracts professor told us that in his class, we are to refer to the Restatement as if it were a statute.
After spending just a little bit of time out in the real world, I find it a little annoying how much law school relies on the Restatements. I guess there's no other way to conveniently teach all the different common law concepts nationwide. Nonetheless...phooey.

I'm the opposite. My torts/k classes almost completely ignored the restatements. We had to learn everything piecemeal by reading cases. That was annoying. I think reading the restatements (and commentary) would have been a much easier way to learn the BLL. And after clerking for a year, I've cited to the restatements a handful of times in opinions and referred to them on other occasions just to get some general background. In a few cases, the parties' main arguments center on the relevant restatement. (I'm sure this will depend on the state, but mine has adopted many provisions through judicial opinion).

I think restatements (and secondary sources in general) are under-utilized by lawyers--probably because they just don't have the time to look at everything. When there's no statute or prior decisions directly on point (a rough estimate would be 20% of civil appeals/dispositive motions), I think a restatement is persuasive.

User avatar
I.P. Daly
Posts: 920
Joined: Fri Nov 19, 2010 3:27 pm

Re: what is black letter law in contracts

Postby I.P. Daly » Fri Sep 02, 2011 11:26 am

bartleby wrote:I think I know what black letter law in torts is now...

still not sure what it is in contracts or civ pro...

is it the rules? the restatement? statutes? someone throw me a frickin bone


When you have a contract issue, you immediately want to determine whether it's a contract for the sale of goods (movable object-widgets, cars, etc.), or something else (e.g., land, labor contract, etc.).

If it's a contract for the sale of goods, you should apply the "black letter law" in the form of the UCC. Basically, the UCC has replaced the Restatement in regard to the sale of goods.

If it's an issue that does not involve a movable object, you should apply the restatement.

random5483
Posts: 684
Joined: Sat Mar 20, 2010 8:17 pm

Re: what is black letter law in contracts

Postby random5483 » Fri Sep 02, 2011 11:03 pm

I.P. Daly wrote:
bartleby wrote:I think I know what black letter law in torts is now...

still not sure what it is in contracts or civ pro...

is it the rules? the restatement? statutes? someone throw me a frickin bone


When you have a contract issue, you immediately want to determine whether it's a contract for the sale of goods (movable object-widgets, cars, etc.), or something else (e.g., land, labor contract, etc.).

If it's a contract for the sale of goods, you should apply the "black letter law" in the form of the UCC. Basically, the UCC has replaced the Restatement in regard to the sale of goods.

If it's an issue that does not involve a movable object, you should apply the restatement.



Law school teaches you to think like a lawyer, not the actual applicable law (overused, I know). The Restatements are as close to a generalized body of law as you are likely to find. Your school is not preparing you for law in State X. Rather, it is preparing you to be a lawyer in any state. Thus, the focus cannot be substantive law from your state.

The UCC and the Restatements are basically the BLL in contracts. Rules from cases can also be considered BLL in some limited situations. In Contracts most of the rules you apply will be from the UCC/RTs/Common Law. At this point in the semester, the primary focus of your class has probably been common law doctrines (offer, acceptance, and consideration) and maybe an introduction to the UCC/RTs. As the semester progresses, you will get used to the rest.

User avatar
shepdawg
Posts: 477
Joined: Thu Sep 10, 2009 8:00 pm

Re: what is black letter law in contracts

Postby shepdawg » Sat Sep 03, 2011 12:56 am

Redzo wrote:My Contracts professor told us that in his class, we are to refer to the Restatement as if it were a statute.

My Ks prof laughed at professors that use the Restatement as if it were the law. Probably why he wrote his own casebook.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: barkschool, Bing [Bot], brgtvnhsmrk, buckiguy_sucks, BuddyHoller, charmonster, EzraFitz, hollamcholla1, lovesthelaw, narddawg, routinedysfunction, torilynn and 43 guests