When the Rules don't Decide the Cases
Notes & Changes
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In several cases that have reached American appellate courts, a good Samaritan has saved a life and the beneficiary has subsequently promised some recompense. The precedent seemed clear that such a moral obligation is not sufficient consideration to make the promise enforceable. In the celebrated case of Webb v. McGowin, however, the Alabama courts enforced the promise, and the Restatement (Second) later approved the decision.
Why does that decision generally seem to be justified?
To answer that question, I will report briefly on what I believe we can learn from twelve great books of the American common law about how such decisions are made—books by Max Weber, Blackstone, Holmes, Maitland, Cardozo, Llewellyn, Hart and Sacks, Posner, Gilmore, Unger, Mary Joe Frug, and Patricia Williams. (Weber, Blackstone, and Maitland, though not Americans, wrote books that count as great books of the American common law.)
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