Open Source Contracts
A Free Casebook
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Where Do I Begin?
Every contract law professor—whether teaching the course for the first time or the fortieth—must grapple with an old and much-debated pedagogical question: Where do I begin? What should be the first major topic my students encounter? Traditionally, the answer has been to start with formation—either with consideration and its alternatives or with offer and acceptance. Many contract law courses, and the casebooks that support them, follow this path. Yet, a significant number of professors and casebooks prefer to begin with remedies. Let’s begin with the bottom line: This casebook is here to help you choose-your-own-adventure. First, we don’t believe there’s a single correct approach for all teachers. In fact, Professor Scott Gerber has documented how, in a series of letters exchanged in the 1940s, two of the most influential contract law scholars in American history—Arthur Corbin and Lon Fuller—debated this very question while attempting (unsuccessfully) to co-author a contract law casebook. So, whether you follow Corbin in beginning with formation or Fuller in starting with remedies, you’re in good company. Second, we don’t take a definitive position ourselves. This project was designed to be flexible, supporting your course regardless of where you choose to begin. Indeed, three of us (Bodie, Kastner, and Rub) are teaching these materials starting with formation, while three others (Bookman, Leib, and Linford) structure their courses around a remedies-first approach. Finally, you need not limit yourself to either of those models. Some professors adopt a hybrid strategy: for example, a brief introduction to remedies to set the stage, followed by a more traditional sequence that returns to remedies in full at the end of the semester. So why might you consider starting with formation? Proponents of the formation-first approach argue that it mirrors the natural, chronological progression of a contract’s life: formation, performance, breach, and its consequences. This sequence helps students understand how contracts come into being before learning what happens when they are not honored. It grounds them in the architecture of enforceable promises and provides a foundation for distinguishing binding agreements from those that are not—an essential concept early in the course. On the other hand, those who begin with remedies emphasize that this approach highlights the core purpose of contract law: resolving what happens when agreements are broken. Starting with remedies gives students a concrete sense of why the subject matters. By introducing real-world stakes—monetary damages, equitable relief, and fairness—the course immediately engages students with the policy dimensions of the field. This approach invites them to think not just about legal rules but about what contract law aims to achieve: compensation, deterrence, efficiency, or justice. The conversation doesn’t end there—not even close. Professors disagree on which approach resonates more effectively with students. Some argue that formation is dry, while remedies are more engaging—so why not lure the padawan into contract law with the fun part? Others respond that students often find remedies confusing if they haven’t first grasped the nature of the contracts being breached. Relatedly, many agree that remedies are complex. Does that make them a good starting point? Perhaps—it may compel students to engage deeply from day one. But perhaps not, as they might struggle to fully appreciate the doctrine and its nuances so early in the course. We could continue this discussion at length—but we won’t. As we’ve said, while every contract law professor must make this decision, there is no wrong choice. If you want to go deeper down this rabbit hole, here are a few helpful resources:
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