Earlier today, I discovered Lawrence Friedman's Contract Law in America: A Social and Economic Case Study, written while Friedman was at Wisconsin. It is a study of over 500 contract cases decided by the Wisconsin Supreme Court. This is a portion of the Preface:
Probably nothing has so crippled historical study of American law as the traumatic effect of some fifty jurisdictions. Nothing, that is, unless it is the devastating obsoleteness of legal education, which (except for some meager palliatives in upper-class seminars) tends to develop notions and habits of thought inimical to the study of law either as a branch of human behavior or as a chapter in the book of human ideas. Legal education, in general, seeks to teach students 'how to think and act like lawyers' and turns its back on imparting 'mere facts.' 'Mere facts' (if this means rote learning) should of course not be the prime goal of education; but overemphasis on skills training has severe drawbacks of its own. It substitutes manipulation of data for understanding of data. In general, the law schools fail to teach the legal system as a whole, let alone the legal system as part of society; they teach disjointed fragments of a fragment.
The publication date of the book is 1965, and the breadth of Friedman's indictment (touching all of legal education except a few upper-class seminars) suggests that "skills training" had a broader meaning for him than it has today.
What I really love about this passage, however, is Friedman's vision of the study of law "as a branch of human behavior or as a chapter in the book of human ideas." In an attempt to convey this idea to my first-year Contracts students, I placed the following aspirational statement at the front of my Contracts syllabus (some of the following is taken from the casebook for the course, Stewart Macaulay et al., Contracts: Law in Action):
This is an introductory course on the law of contracts. Note the italics. Despite the unqualified title of the course – "Contracts" – we are not much interested in the structure or content of contracts. This is not a course on contract negotiation or drafting, and we rarely read more than a short excerpt from any contract documents. We study the law of contracts, which encompasses the technical legal rules found in statutes, regulations, and judicial opinions that, among other things, prescribe the requirements of contract formation, provide certain bases for avoiding performance of contracts, and describe various legal and equitable remedies for breach of contract.
But there is more to our study than the mastery of legal rules. We are interested in the law in action. Knowing legal rules is like learning to play scales on a musical instrument. While playing scales may be an essential step in becoming a musician, mastering the scales is not the end goal. Similarly, while knowing legal rules is essential in becoming a lawyer, mastering those rules is not the end goal. We must become experts in understanding how legal rules express themselves in the lives of real people. This requires us to treat the study of law as more than a series of logical puzzles. In the final analysis, our goal is to develop a better understanding of human behavior.
This is a difficult aspiration to fulfill, and I know that I have not always done so. But it is a worthy goal. And it makes for more interesting classes, too.
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1. Posted by Jake on October 30, 2007 @ 19:06 | Permalink
"[T]here is more to our study than the mastery of legal rules. We are interested in the law in action. Knowing legal rules is like learning to play scales on a musical instrument. While playing scales may be an essential step in becoming a musician, mastering the scales is not the end goal. Similarly, while knowing legal rules is essential in becoming a lawyer, mastering those rules is not the end goal. We must become experts in understanding how legal rules express themselves in the lives of real people. This requires us to treat the study of law as more than a series of logical puzzles. In the final analysis, our goal is to develop a better understanding of human behavior."
A nifty aspirational goal, but incomplete.
Some people go to law school so that they can acquire the skills to make the rules, such as by persuading a judge what the law is, or should be.
2. Posted by mmm on October 31, 2007 @ 9:37 | Permalink
As a student in G.S.'s first contracts class in Madison, I must admit, I hated my contracts course--it was and will forever remain my lowest grade in law school. Ironically, perhaps, I'm now a transactional lawyer whose hours are primarily filled with contract drafting, negotiation and interpretation. Aside from those basic concepts of "offer, acceptance and consideration," (and from time to time the UCC) I rarely ever use any of the things that I "learned" in my contracts course.
I was able to gain most of my useful contract skills by working with an in-house attorney after my second year. There I was able to get actual experience drafting and negotiating. Without that, I would imagine I'd be utterly unprepared for the rigors of contract drafting and negotiation after leaving law school.
Indeed, I see this problem frequently from new associates/summers that haven't a clue how to construct a single, well-formed contract sentence. Though they could probably barf up more knowledge on promissory estoppel than they'll ever need in their entire careers.
The funny thing is that many lawyers will draft a contract during their careers, but it is something that's rarely taught. Is it any wonder then that firms feel that law school graduates are under-prepared when they walk through the door?
3. Posted by Gordon Smith on October 31, 2007 @ 11:09 | Permalink
mmm, As I noted in the original post, my performance does not always reach the aspiration. And I feel badly about that. I agree with your point about contract drafting, and in subsequent years, I have done a drafting exercise in Contracts. But it isn't enough. Law schools should spend more time teaching students about contracts rather than contract law, and I try to do that in my Law & Entrepreneurship class.
One of the impediments to making that change is that the Contracts course has been reduced from 6 credits to 4 or 3 credits in most law schools, so people who believe (not unreasonably) that the law of contracts is worthwhile already feel put upon. Adding "real contracts" to that course would require further reductions in the coverage of contract law, and that is not going to happen anytime soon, unless (as I have suggested we try here) we allow legal writing to be taught within the Contracts course.
4. Posted by Gordon Smith on October 31, 2007 @ 11:19 | Permalink
Come to think of it, mmm, we did the contract drafting exercise during your year. I just looked back at my records, which reminded me of lots of complaints from students who didn't want to be graded on their drafting exercise. They claimed to know that contract drafting had nothing to do with the Contracts course, presumably because mine was the only section that did it. And because I was the new kid on the block (the other sections were taught by Macaulay, Whitford, and Kidwell ... the authors of the casebook), I was obviously in the wrong. Yep, I remember now.
5. Posted by Devin on November 1, 2007 @ 0:16 | Permalink
Having worked for in-house counsel whose primary duty was drafting and reviewing service contracts for cities, I find this discussion interesting. I am also currently studying Contracts with Professor Smith and what I notice most frequently as we discuss the challenges of contract law is how often the contracts I read and drafted at my previous employment added provisions to clarify the grey areas of contract law. It seems that the "boilerplate" terms of many contracts are efforts to avoid the problems that have been litigated in the past. Thus, the while the study of contract law principles is excellent practice for legal analysis, some of the more challenging issues we discuss are often precluded from current contracts by "standard provisions". While I don't think that reading modern contracts is a substitute for studying the law of contracts, I see modern contracts as a product of the principles studied in the law of contracts. Thus, it might be an interesting experiment to give law students a legal drafting problem (and a few examples of full length contracts) near the end of their semester of study in an effort to help them grasp how contract drafters seek to overcome the challenges and pitfalls of previous contracts and more clearly capture the essence of an agreement between two parties in writing. Though with the limited credit hours in Contracts classes, it would likely prove difficult to encorporate this concept. However, it might be possible to incorporate this idea into the Legal Writing class. Currently the writing and Advocacy class is only 5 credit hours over two semesters. If it were increased to 6 credit hours (or even 7), a contracts drafting unit may be integrated into the curriculum.
Also, I find Prof. Smith's thoughts on Friedman's view of the law of Contracts interesting in light of my past experience. Although the in-house attorney often spent hours and days negotiating contracts with city attorneys, the reality of the matter was that the relationship with the city was more important to our company than any legal right or the ability to enforce such rights in a court of law. Hence, regardless of what the contract said, we would rarely, if ever, attempt to enforce our legal rights in a courtroom. I think this demonstrates the point Friedman was trying to make that Contracts go far beyond the agreement. At best contracts capture a relationship in words, yet so many times there are subtle nuances that are far deeper than each party's legally enforceable obligations and rights under contract.
Thus, I wonder if the study of contracts (as currently practiced) is the inevitable starting point for understanding the limitations of the legal system in capturing and enforcing relationships described (often inadequately) in contracts. It seems that the legalaly enforceable rights of a contract are only the bare minimum threshold for a relationship and that often relationships rise to a level far beyond legally enforceable rights. I don't believe that our current legal system seeks to enforce such lofty ideals, but rather, it is meant to preserve that basic foundation so that individuals build their relationship and trust in each other on a solid foundation.
As Prof. Smith mentions in the syllabus, the scales of music are only the beginning.
6. Posted by Jeff Yates on November 1, 2007 @ 12:07 | Permalink
As a former in-house counsel, I remember being frustrated with the lack of guidance (both formal and informal) that I had received in law school on how to draft contracts. In looking back though, I remember that there were plenty of opportunities for learning contract drafting (and related skills) in upper division courses - I just didn't take them. Don't most schools offer such courses? I'm not sure if 1st year contracts is the place for really learning contract drafting - as I recall, I pretty much had my hands full with the class.
7. Posted by Cliff on November 1, 2007 @ 20:30 | Permalink
Great post! Although I doubt you were necessarily conceptualizing this issue as one that pertains exclusively to the study of contract law, I would like to add the point that it seems the discussion here is another version of the debate concerning the intersection between and relative importance of practice and theory in legal education. (Of course, based on the Friedman quote you posted, I suppose Friedman might say I am either misunderstanding or understating his perspective.)
In any case, I mention this simply because I have seen the effects of what you are talking about from two different perspectives.
As a first year intern, I suppose I might have struggled with writing a contract just as much as some of the above posters have suggested, but I was quite adept at picking apart a contract when it came to writing a memo for an attorney who was preparing to litigate in a contract action.
Alternatively, as a 3L I am currently in a Basic Estate Planning course where, after having done well in a wills & estates course and a course on trusts, many of the students have struggled mightily to write effective wills and to write them well.
As unexperienced as I am in the actual practice of law, I would suggest that the current structure of most contract law classes in the US continue to be essential pieces of a quality legal education, even if they don't teach the practice of writing contracts, and even if some students will go on to become transactional lawyers who "never" use what they learn in those classes. As you stated, one course can only teach so much. Perhaps the answer, at least for contracts, is not so much to include drafting exercises in the contract law class, but to offer an upper division course(s) that "immerse" students in various drafting exercises.
8. Posted by Cliff on November 1, 2007 @ 20:34 | Permalink
As an aside, my first year contracts course was a year long six credit course. Looking back, I struggle to see how the class can be taught well in only 3 or four credits. To me it would seem to either leave too much out or cram too much in, depending on one's perspective and how the instructor approached the course.
9. Posted by Jake on November 1, 2007 @ 21:49 | Permalink
Basic contract drafting does not measure up, in terms of difficulty, to building a serviceable rocket in your backyard. First, you figure out what kind of contract you want (sale, lease, insurance, bailment, etc.). Next, you gather some contracts of the type you seek to write and use them as templates, keeping the good language and leaving the bad behind. Finally, you fine tune the draft contract to any unique need your client may have.
For truly complex problems of contracting, a specialized seminar-level law school course is appropriate. Otherwise, follow directions above.
10. Posted by Ken Adams on November 6, 2007 @ 11:34 | Permalink
As an alternative to Gordon's music analogy, how about this: Drafting a contract is like designing and building a house. Contract law is like the constraints that come into play in determining what the house should look like and what materials you should use: the force of gravity, the tensile strength of steel, the combustibility of sheetrock ... Those constraints are fundamental, but they quickly become second nature to experienced architects and builders, who are able to focus their attention on matters more immediately relevant to their clients' needs.
And regarding Jake's sanguine take on what's involved in contract drafting: I've written (and blogged) on the subject for several years. I had expected to run dry, but I continually find new issues to tackle. It turns out that determining what constitutes good language that you keep and bad language that you jettison requires some thought. The alternative is to recycle the conventional wisdom, but that has its costs. For one thing, it helps ensure that anyone looking to follow in Lawrence Friedman's footsteps will have no shortage of contract cases to write about.