October 21, 2008
The First-Year Curriculum and The Expendability of Contract Law
Posted by Gordon Smith

As the current chair of my law school's curriculum committee, I have been tasked with investigating various aspects of the curriculum, and this assignment has caused me to start reading some of the vast literature on legal education. The first-year curriculum is a frequent object of scorn in this literature, and the best piece that I have read on the subject is Edward Rubin's What's Wrong With Langdell's Method, and What to do About It, 60 Vand. L. Rev. 609 (2007). Here is the first paragraph to whet your appetite:

Here we are, at the beginning of the twenty-first century, using a model of legal education that was developed in the latter part of the nineteenth. Since that time, the nature of legal practice has changed, the concept of law has changed, the nature of academic inquiry has changed, and the theory of education has changed. Professional training programs in other fields have been redesigned many times to reflect current practice, theory, and pedagogy, but we legal educators are still doing the same basic thing we were doing one hundred and thirty years ago. Many law professors are conscientious and devoted teachers, and quite a few are inspired ones, but their efforts are constrained and hobbled by an educational model that treats the entire twentieth century as little more than a passing annoyance.

While that may seem like the standard litany of complaints against the first-year curriculum, Dean Rubin supports his complaints with a fascinating look at the world of Langdell and how that world changed dramatically within a few years after the canonical first-year curriculum was established.

Despite simmering discontent with the first-year curriculum, law schools have retained the common law core. Perhaps the biggest changes to Landell's curriculum started in the mid-1980s, as law schools reduced the number of hours devoted to the common law courses and added other requirements or electives in the first year. A couple of years ago, Harvard created a stir with new courses focusing on legislation and regulation, global legal systems and concerns, and problem solving. Still, the traditional core of civil procedure, contracts, criminal law, property, and torts remains.

Why have we not seen more change in the first-year curriculum?

Larry Kramer at Stanford believes that the first year of law school "works," and that reformers should focus on the second and third years. The argument is a couple of years old now, but as far as I can tell, he hasn't changed his mind. Let's take a closer look:

Ask any law school graduate what was the most significant intellectual experience he or she had in law school (that is, what really shaped their thinking, what stuck with them, what mattered most), and almost all will give the same answer: the first year. This seems to be true no matter what law school they attended, no matter what career they chose to pursue, and whether they graduated last year or fifty years ago. I spend probably half my time talking to Stanford graduates, usually beginning a first meeting by talking about their time here, and I get this answer almost 100% of the time. The first year, in other words, is the part of law school that really seems to work.

As a descriptive matter, he is certainly right that the first year of law school is the "most significant intellectual experience" of law school for most lawyers, but why would we conclude from that observation that the first year of law school "really seems to work"? First-year law students are learning to cope with an entirely new intellectual and social environment, and it would be absolutely astonishing if that transitional stage -- that induction to The Club -- were not immensely important to them. Sort of like a first kiss. Or a first trip to a foreign land.

But Dean Kramer does not rest on his initial observation of the significance of law school in the memories of lawyers. He describes the important function of what happens in that first year:

To understand why the first year succeeds so much better than the upper two years, we need to understand what it is that law schools do in the first year.  We are, for the most part, teaching beginning students to "play scales." That is, we are teaching the basic skill of "thinking like a lawyer": the art of legal problem spotting and analytical thinking that distinguishes lawyers and constitutes the heart of our discipline. 

In theory, this skill could be taught with almost any set of legal materials. But we are doing something else as well that first year, namely, introducing students to a set of foundational concepts and building block doctrines that underlie every field of law---such things as intent, reasonableness, consent, injury, negligence, duty, and the like. We teach these concepts through a sequence of common law courses. This, too, is not absolutely essential, and there surely are other ways to teach the same concepts. But they developed at common law, and experience has shown that these common law courses are an excellent vehicle for teaching them to students. 

I like this point very much, and I find it a very interesting approach to thinking about the first-year curriculum. So let's ask with Dean Kramer, what are the building blocks of law?

Take another look at Dean Kramer's list: such things as intent, reasonableness, consent, injury, negligence, duty, and the like.

Notice anything about that list? These concepts are all taught in Torts.

But the list is not exhaustive, so let's turn to the subject of my post: what does the law of contracts add to the list?

Hmm.

Offer, acceptance, consideration? 

Statute of Frauds?

Expectation, reliance, and restitution damages? 

Warranties? 

Form contracts?

The typical first-year Contracts class contains a number of interesting and important ideas, but why must those ideas be presented in a course focusing on contract doctrine? What if we replaced Contracts in the first-year curriculum with a course called Transactions? Cue Edward Rubin:

One consequence of Langdell's lack of a modern, social science orientation is the absence of transactional law from the traditional law school curriculum. Non-lawyers tend to be astonished to learn that in the well-known first-year course on contracts (it was Professor Kingsfield's course, after all), the students never read, draft, or negotiate a single contract. It is equally astonishing to realize that upper-class courses typically do not fill this lacuna and that students graduate from law school without any exposure to this basic area of law in which large numbers of them ultimately will practice. This feature of the traditional curriculum cannot be attributed to a change in substantive law since Langdell's time. Unlike administrative law or international law, transactional law was just as prevalent in his day as it is in ours, just as basic a component of the practice for which he was preparing the students. But transactional practice was invisible to Langdell because it is a social practice, not a set of authoritative rules. He and his compatriots were simply unable to perceive the features of a practice as an appropriate subject for study in a university curriculum.

...

Transactional law consists of what Ronald Gilson has called transaction cost engineering. The lawyer determines how to implement an exchange between the client and another party so that the surplus motivating the exchange is divided in a manner most beneficial to the client and minimizes the client's transaction costs. This exchange involves a wide range of trade-offs, transactionally-based techniques, and negotiating stratagems. It rarely results in litigation, and, in fact, a large part of the lawyer's role is to eliminate the uncertainties that generate litigation, or to place the client in a situation where it can obtain the benefit of the bargain by self-help or default, rather than by going to court.

I don't agree with everything Dean Rubin has written here. An increasing number of students read, draft, or negotiate contracts in their Contracts class or in other classes during law school, but he is right that the bulk of Contracts classes focus on legal doctrine rather than transactional principles. I also think the study of transactions is richer than Gilson's transaction-cost engineering, though that is a great starting point.

These quibbles aside, I am intrigued by the idea of offering Transactions as a first-year course in place of the traditional Contracts course. Does any law school do this? While I am certain that such a proposal would be greeted in some circles as heretical, would relegating Contracts to the status of an elective course really deprive students of any important building blocks of the law that could not be included in the Transactions course?

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Comments (10)

1. Posted by Joe Miller on October 22, 2008 @ 5:06 | Permalink

Gordon,
A great set of questions.
What about this variation, given that many 1L Contract classes last a full year: the first semester devoted to the traditional doctrinal approach, the second semester devoted to the transactional approach with lots of drafting?
Joe


2. Posted by Gordon Smith on October 22, 2008 @ 7:57 | Permalink

Joe,

Is that still true of Contracts? I had the impression most schools had reduced the credit hours devoted to the subject. In any event, there is no reason a school like mine couldn't simply add Transactions to the first year, though it would require us to make room in some other way.

I suspect some people might think Transactions would make a worthy first-year elective, and that would work, too. Still, in thinking about this, I keep coming back to a point that I didn't mention in the post: every lawyer does transactional work, but only some lawyers litigate cases. Given the relative unimportance of most contract doctrines to modern law, shouldn't we have a fairly strong preference for Transactions over Contracts?


3. Posted by dave hoffman on October 22, 2008 @ 9:53 | Permalink

Very interest set of observations. But I think you are missing two important ideas that are taught in contracts and which don't appear otherwise in torts: (1) the idea of privately created value, as illustrated by expectation; and (2) interpretation. I don't think a course in "transactions" would likely focus on these crucial concepts. Also, I don't know why reasonableness isn't explored in contract law - it's the foundation of the formation/breach unit.


4. Posted by Matt Bodie on October 22, 2008 @ 10:37 | Permalink

I think a lot of folks have some sense that Contracts could use some updating. I would be more in favor of a "Contracts and Basic Business Transactions" course that blended doctrine with transactional skills as well as basic business concepts (such as balance sheets and interest rates). Regardless of the tweaking, however, there is a real opportunity here to develop materials for Contracts that cover a spectrum from traditional doctrine to transactional work. It would be fairly simple to put together a website/blog devoted to developing a new approach to Contracts. Users could post a variety of materials, and then each professor could tailor the course how she or he preferred. Given a sufficient range of cases, contracts, problems, and notes, professors could use just a few discrete transactional problems or could transform the whole course in the manner contemplated by Gordon. I hope there is some interest in this, because I'd love to work in more transactional materials but am daunted about the prospect of going it alone.


5. Posted by Elizabeth Brown on October 22, 2008 @ 10:55 | Permalink

Some schools no longer teach Contracts as a full year course but teach it as a one semester course. So dividing the doctrinal from the transactional in two different semesters will not work for those schools. I think it would be better if schools required as part of their legal writing programs courses in drafting transactional documents. I also think students should be encouraged to take at least one course in negotiations before they graduate. Trying to cram all of these skills plus the related doctrinal concepts into one Transactional Course might be overreaching. Having them as separate courses that are mutually reenforcing might be a better way to train students in preparation for practice.

I still think Contracts is a useful first year course. One or more contracts are at the root of all transactions. They are where the parties memorialize their agreements over what they are exchanging. The language of these contracts plays a crucial role in negotiating strategy.

Certainly it would be useful if students were more consistently exposed to how contracts are actually used in transactions in their first year but I am not sure that one needs to change the name of the course from Contracts to Transactions to do this.

In addition, I see Contracts as a useful building block course for when I am teaching Business Associations. The nexus of contracts view of corporations is one of the major theories used to explain the policies behind corporate law. In addition, many other business documents, such as partnership agreements, LLC operating agreements, and shareholder agreements, are basically contracts.

In order to make Contracts courses more transactionally oriented, one would have to get casebook drafters to change how they draft casebooks. The casebooks would have to rely less on appellate cases and more on actual contracts and other documents.

Creating a first year Transactions Course to replace Contracts seems to be more of a bandaid that attempts to avoid what really needs to be done, which is to undertake a more substantial reform of the law school curriculum to give equal weight to transactional practice areas.


6. Posted by David Zaring on October 22, 2008 @ 11:17 | Permalink

Seems like there's pedagogical transactional background in the Deals course, so updating wouldn't be so hard....


7. Posted by Gordon Smith on October 22, 2008 @ 17:32 | Permalink

Thanks for the wonderful comments, everyone. I want to focus on Dave Huffman's for a moment. Dave sees two "building block" concepts in Contracts that don't appear in Torts and would not be emphasized in Transactions: (1) the idea of privately created value, as illustrated by expectation; and (2) interpretation.

The claim that these concepts would not appear in Torts seems right to me, but I don't understand why they would not be emphasized in Transactions. Indeed, as I wrote the post, I thought about both of these ideas because I reviewed this paper, which includes a discussion of both ideas, and I concluded that the Transactions course I imagined would do a better job than Contracts on both issues. But I suppose this belief rests in part on the notion that I would squeeze some contract doctrine into the Transactions course, as suggested by Matt Bodie.

Still, leave the doctrine aside for a moment. Can't we talk about value creation just as meaningfully in a transactional context as in a litigation context? Perhaps even more meaningfully? As for intrepretation, one of my complaints about judicial opinions is that so much of the context is lost. One of the virtues of the Wisconsin materials is that they attempt to restore that lost context, but even with those materials, many facts are missing that could be supplied in a transactional context, and these facts would allow for a richer discussion of interpretive principles.


8. Posted by Gordon Smith on October 22, 2008 @ 17:44 | Permalink

Elizabeth,

We have discussed this before, and I think you and I are pretty close in our enthusiasm for transactions in the law school curriculum. You are certainly right that one could teach a transactionally oriented "Contracts" course without changing the name, but I think a new name would be useful to signal to everyone that something new and different from Kingsfield's class is happening.

But I think there is a more important symbolic point at stake here. Many students who do not encounter transactions until their second or third year -- and then only as a diversion in one or two classes -- do not think of the study of transactions as "law." (Larry Kramer might say that I should give students more credit here, but I have encountered the attitude too frequently to doubt that this happens regularly.) When students are immersed in litigation for the entire first year, they miss something very important in building their conception of law and the legal system. Creating a Transactions course may not be the only step required to improve the education of our students, but I think it is much more than a band-aid.


9. Posted by Vic on October 23, 2008 @ 12:16 | Permalink

Erin O'Hara (Vanderbilt) has taught a successful transactions-oriented course as a replacement for the traditional first-year contracts course. My understanding is that she still covered some doctrinal areas, but spent considerable time studying actual contracts.

For what it's worth, I think most contract doctrine is trivial. Deal lawyers do not spend a lot of time thinking about offer, acceptance, and consideration, statute of frauds ... and only minimal time thinking about interpretation as such (e.g. parol evidence rule). So a course that emphasizes contract design and drafting makes a whole lot of sense.

Whether this should replace or supplement the first-year course is a harder question. If you believe that the first year, as it is, successfully teaches the intangible value of thinking like a lawyer, then there is something to be said for leaving it alone.


10. Posted by Jake on October 23, 2008 @ 21:12 | Permalink

I certainly see Vic's point that most contract doctrine seems trivial. When was the last time a lawyer drafted up a serviceable contract from scratch, as an original creative effort, as opposed to borrowing from a template contract authored by some other lawyer (or a long chain of other lawyers, mostly dead, stretching way back in time)?

If nothing else, teaching some contract doctrine in the 1L curriculum, ought to give the fledgling lawyer some idea of how to select a template contract that can be customized to meet the client's needs.

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