I will offer an extended illustration of the demystification link here and will focus on promissory estoppel, a doctrine that receives sustained attention in the typical US Contracts class and has been the focus of a great deal of scholarship, critical and otherwise, for decades. Following this introduction, the essay proceeds in two parts. In Part II, I introduce promissory estoppel the way I do in my classes, contrasting mainstream, legal realist, and critical ‘stories’ about the history and role of the doctrine in American contract law. I warn my students – as I am warning readers here – that the contrasting accounts are to some extent caricatures, for surely no self-respecting legal academic would actually admit to being ‘mainstream,’ and I gather from what I read in the casebooks as well as from discussions with others teaching the course that most of us bring insights from a mix of realist, critical, and other schools of thought to our classroom work. But the point of proceeding in this fashion is to attempt to highlight the contributions of the critical tradition to pedagogy as well as legal theory, and in Part III I’ll bring those contributions to bear on a critical study of the Local 1330 case, a storied challenge to the closing of a pair of aging steel plants in the industrial Midwest nearly four decades ago.
Fischl, Michael, "Ideology and Argument Construction in Contract Law" (2019). Faculty Articles and Papers. 490.