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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