Emily Kadens & Michael Lobban: A Lawyer and a Historian of Commercial Law

Emily Kadens & Michael Lobban

Emily Kadens is the Edna B. and Ednyfed H. Williams Memorial Professor of Law at the Northwestern University Pritzker School of Law.

Michael Lobban is Senior Research Fellow at All Souls College, University of Oxford.

In his contribution to these essays honoring Jim Oldham, Paul Halliday quoted Jim’s self-deprecating comment that “well, I’m not a real historian, I’m just a lawyer….” We would like to celebrate exactly that lawyerly aspect of Jim’s historical work. For he is not just an historian of juries and judges but also of commercial law and practice—exactly those areas of the law that he taught and practised in as an arbitrator. It is in these areas that we can see Jim’s sharp analytical legal mind at work, teasing out core principles and doctrines for the benefit of those students and scholars particularly interested in doctrinal questions. But Jim’s expositions are not the work of “just a lawyer”—they are also significantly enriched by his considerable skills as an historian. Indeed, it was these areas which led Jim to the archives in the first place, as he sought in his teaching to understand the old case law which still underpins so much of the modern law of contracts. He soon discovered that it was precisely by becoming an historian—immersed in archives, old newspapers, pamphlets, and notebooks—that the lawyer would come to a clearer understanding of doctrine.

It was thus, at least in part, his interest in contract doctrine that led him to seek out the Mansfield notebooks. A significant portion of the Mansfield Manuscripts covers commercial topics: contract, bankruptcy, insurance, negotiable instruments, usury, prize and trade, and intellectual property, while Jim’s attentiveness to the importance of arbitration in daily legal practice resulted in a long appendix to the book.

Commercial law sadly lacks the sex appeal of juries, judges, and habeas corpus, but that comparative popularity deficit has made Jim’s articles and book chapter introductions all the more significant over the decades. The historical common law is so complicated and so foreign to modern lawyers as often to be nearly incomprehensible to the uninitiated. Commercial topics add their own jargon and techniques on top of this. Noting this recognizes the enormous amount of work that went into writing the Mansfield Manuscripts, not only in deciphering Mansfield’s difficult hand, but also in mastering the legal topics that the book had to cover.

Most important for the field of commercial law history, however, is the lucidity with which Jim explained the commercial topics he covered in his book. In addition, although the abridged version of the Mansfield Manuscripts is called English Common Law in the Age of Mansfield, the sweep of Jim’s explanatory essays far exceeds the bounds of the late eighteenth century. On a topic such as bankruptcy, for instance, the chapter introduction traced the development of the law from the original English bankruptcy statute in the mid-sixteenth century, through a series of major innovations such as the introduction of discharge, all the way to the late eighteenth century. As such, he provided a basic handbook to which students and scholars new to a topic can turn for accurate and comprehensible introductions.

At the same time, he also made important contributions to the understanding of eighteenth-century law. In particular, his work on Mansfield offered new insights into the debates on the nature of contract law that followed the publication of the seminal works of Morton Horwitz and Patrick Atiyah. While sympathetic to their view that a notion of fairness underpinned contract thinking in this era, Jim argued that for Mansfield it was the moral nature of a promise, rather than the receipt of consideration, which generated obligations. This explains Mansfield’s willingness to dispense with the need for consideration if other evidence of seriously-intended promises existed and his willingness to uphold promises backed by merely moral consideration. Jim thus saw a close connection between Mansfield’s ideas on contract and “quasi-contract.” The remedies Mansfield developed to reverse unjust enrichments were the corollary of his idea that the courts should enforce promises based on moral obligations: they were (in Jim’s words) “congenial parts of an overall philosophy of moral transactional behavior.”[1]

Besides exploring how eighteenth-century jurists thought about the law of contract, Jim’s wider work—such as his discussion of the contractual position of married women—shows how judges disagreed on the policy of the law and how it should develop in a changing society. Rich and fascinating for specialists of the era, this work also offers thought provoking insights for those lawyers who still wrestle with explaining the philosophical foundations of contract law or who reflect on the relationship between legal doctrines and the wider society.

Jim has also written several articles on arbitration, an area of practice in which he made significant national contributions as a sports labor arbitrator, as chair of the Foreign Service Grievance Board at the State Department, and as president of the National Academy of Arbitrators. He brought the insights of experience to his study of arbitration in eighteenth- and nineteenth-century England and America. In this work, Jim challenged the prevailing view in the scholarship and in American courtrooms that downplayed the historical importance of arbitration in the Anglo-American economies of the industrial revolution. He demonstrated the importance of the 1698 English Arbitration Act in revolutionizing the enforceability of arbitration agreements by allowing them to be made rules of the court without the necessity of commencing civil process. In collaboration with Su Jin Kim, he also collected evidence of early American arbitrations in Maryland and Pennsylvania to prove that arbitration was prevalent, that the 1698 Act had been incorporated into state law, and that the later idea that American state courts did not like arbitration—a justification for the Federal Arbitration Act first passed in 1925—was not true.

Jim was able to draw many of his conclusions because he had painstakingly collected thousands of arbitration cases referenced over 32 years in the King’s Bench rulebooks. These he tabulated in an appendix to the Mansfield Manuscripts. But he could give meaning to all this data because, as he said about John Locke, Jim “understood and appreciated the arbitration process.”[2] He analyzed the place, growth, and functioning of arbitration in England and early America with a practicing arbitrator’s eye, understanding the history in terms of four aspects of arbitration that remain important today: its economy in resolving disputes; its discovery function; the practical and legal expertise of arbitrators; and its role in cases too complex to put before a jury.

Finally, Jim turned his study of Mansfield’s contribution to the law of insurance into later pieces on the insuring of slave ships in the late eighteenth century and enemy cargo in the nineteenth. Insurance exemplified Mansfield’s sense that commercial law must be influenced by commercial practice.

Like Mansfield, who made use of expert juries of merchants to understand actual commercial practice, Jim realized that looking at printed judicial precedents is not enough to understand the true development of the law. Indeed, Jim made his historical bones with his “forays into the dense undergrowth of the judicial record.”[3] Such “playing the detective” in the manuscripts occasionally allowed him to correct the received wisdom not just with regard to arbitration and Mansfield but also in individual cases.[4] He proposed, for example, that the bewildering discrepancy between the reporters’ view of the facts in the famous consequential damages case of Hadley v. Baxendale and the version presented in Baron Alderson’s judgment could be resolved by understanding how the system of reserving points of law at nisi prius worked.[5] As a Contracts professor, Jim was especially pleased with that insight.

Beyond working with judges’ trial notes and manuscript and nisi prius reports, Jim also realized how rich a source contemporary newspapers could be. He fruitfully mined legal reporting for insights into the development of negligence and contract doctrine, among other things. His work made newspapers a regular source for eighteenth- and nineteenth-century English legal history.

Jim could be found in the summer gathering manuscript reports in Lincoln’s Inn Library, unfailingly sporting a crisp white shirt that somehow never became soiled by the dirty documents or wilted in the hot library. In his interest in the archives, he was a mentor to many, demonstrating that rich legal history could be written using sources other scholars often neglected. But Jim was also a mentor in his inclusiveness. He made sure that young scholars, especially women, were included in a field that could sometimes feel like an old boys’ club. He delighted in the papers his students wrote for his English Legal History seminar, and on occasion he published with them. He had the rare skill, whether in his first year Contracts classes or at conferences, of being able to pose probing and insightful questions in a generous and gracious manner, which helped many a student or young scholar sharpen their ideas or seek new sources. In his interest in the understudied field of commercial law history, the accessibility of his scholarship, his ecumenical exploration of new source material, and his encouragement of so many young faculty and students, Jim was a model who made the field better than he found it.

[1] James Oldham, English Common Law in the Age of Mansfield (University of North Carolina Press, 2004), 92

[2] James Oldham, “The Historically Shifting Sands of Reasons to Arbitrate,” Journal of Dispute Resolution 2016: 42.

[3] Henry Horwitz & James Oldham, “John Locke, Lord Mansfield, and Arbitration during the Eighteenth Century,” Historical Journal 36 (1993): 158.

[4] James Oldham, “Detecting Non-Fiction: Sleuthing Among Manuscript Case Reports for What Was Really Said,” in Law Reporting in England, ed. Chantal Stebbings  133, 134 (Hambledon Press, 1995), 134.

[5] Ibid., 138-39.