So far no takers on either of my two most recent building trivia questions. The later isn't surprising; that's an absurdly difficult question. The former, though — it's a building on the campus where we have readers. In fact, I saw on sitemeter that at least one reader from that school visited the blog after I put up the question. Whatever.
But I do have a more substantive and law-related trivia question. This is inspired by the essay on David Rabben's Law's History: American Legal Thought and the Transatlantic Turn to History that I'm working on. One of the many, many interesting lines of thought that runs through David's book is a question about the extent to which the Gilded Age was an era of "freedom of contract." (Or so that's how I read it — this is really a subordinated piece of the story.) So that set me to ask, just when (and what) was the first judicial opinion in the United States to use the phrase "freedom of contract"?
What's the deal? Unless I put up a picture no one wants to play law trivia?!
Okay I will bite and give the obvious answer: Charles River Bridge? framed as a question not to follow some formalistic rule, but because I am guessing…
Hey Shubha — interesting guess. I don't think the phrase "freedom of contract" (as opposed to "freedom to contract") appears in any opinion until after the Civil War.
The next obvious guess is Lochner or one of the SCt cases that followed. On a related note, when was the Takings Clause given its name?
Freedom of contract does appear in Lochner, for sure. Though by then it was a common phrase. I think it's first used in an appellate opinion in the nineteenth century (though after the Civil War).