72 Similarity
uncommon throughout the transcripts. One important way law is taught is through
its application, by example.
Returning to our primary point, we can also notice that in this excerpt the
professor urges the student to compare the facts in the case being discussed to
those of other cases. In the previous cases, a promise to forbear had been found
to constitute adequate consideration, so that a valid contract was formed. A prom-
ise to forbear in the case now being discussed was not viewed as adequate. The
professor is pressing the student to examine the facts in each case to discern the
legally definitive difference. A first pass reveals one difference: the promise here
did not actually limit the promisor’s discretion. The professor then goes on to
push the contrast still further, saying of the case at hand, “Well, in fact he actu-
ally did forbear for two years after the promise. So why wasn’t that consideration?
Certainly good enough in Hamer v. Sidway. Why weren’t the actual two years of
forbearance, to insist upon paying the note, consideration?” (7/4/14). Here the
professor is demonstrating to students that there are multiple possible points of
analogy and that each must be examined for key similarities and differences.
This excerpt also highlights the way particular cases come to “stand for” legal
principles, through this process in which law is applied to facts. The professor
stresses the point here in order to ensure that students take the right lesson from
the case. On the one hand, it could be that a promise to forbear would never suf-
fice for contract formation. On the other hand, the case could stand for a more
limited legal principle: that when a promise to forbear actually leaves the promi-
sor with total discretion, it will not suffice for contract formation.^60 Figuring this
out requires careful parsing of the backbone of law as it is applied to facts through
several cases, as well as examination of the potential analogies among them. Of
course, when courts engage in this process, law is not only applied but also cre-
ated. Students follow their professors’ lead, engaging as well in this process of
analogical parsing:
Transcript 4.10 [6/22/3]Prof.: You said it’s a form letter and that indicates it’s not an offer. Why not? Ed?
Ed: I’d say it’s similar to the advertisement () more people could accept it than
there are numbers to pass out. So there’s only one property, and if it’s a
form letter more people could accept it, if it was an offer. So that makes it
unreasonable to think that is an offer.Transcript 4.11 [8/20/15]Student: Well, I mean, I would say the biggest differentiation here between this
and the painting contract was the immediacy. I mean, if I made a threat
to you right now, then it’s probably much more likely to be enforced
than if I say, call you up on the phone and threaten you, I mean.Notice that a similar parsing process is necessary to discern the holding of any
particular case; students must glean which legal principles are at issue, which facts
from previous cases were most pertinent, which facts in this case are most perti-