Contracts is the least political course in the first year of law school, perhaps all of law school. I say keep it that way, and share that with students, despite how visionaries on the far left and far right may wish otherwise. I also think the course and its content should be made as clear and straightforward as possible for the students, not bogging down in every exception within the exception.
I agree that tailoring the contracts course to suit is no harder than any other professional task lawyers appointed to the job have handled. Start with getting samples of syllabi from senior colleagues, at your own school or from around the internet. Most books are packed with a combination of cases, notes, problems, drafting excecises, and so on. There are separate dedicated books chock full of drafting problems.
Review all these. Evaluate them with your specific situation in mind: your strengths and weaknesses as a teacher, your student's backgrounds and prospects, your school's needs and expectations for you given its standing and curriculum.
Rank them from best to worst and, then, as Ohio State's Doug Whaley once quipped, assign the second-best one and keep the best one for yourself. Assign small bits at a time and discuss everything that is assigned.
Concerning eschewing the political, each chapter in my book, Contracts in the Real World, ends with a short synthesis contending how contract doctrine occupies what I call the "sensible center" in law. Following is that from Chapter 2, entitled "Facing Limits: Unenforceable Bargains."
As a matter of policy to promote freedom of contract, courts usually enforce contracts as written, without specific review of the terms. If terms show a contract was formed, courts enforce them. Fairness is not a court’s concern in contract cases. Some deals, however, are struck on surprisingly lopsided terms, like a simultaneous exchange of different amounts of money or as the product of extortionate threats.
Courts struggle with whether to enforce bargains that appear in unconventional settings, such as parenting, or romance, where bargains are unlikely; or involve activities that are illegal, like gambling or prostitution, or unsavory, like adultery. Deals suggesting lack of true bargain or verging on illegality provoke judicial attention—and are often ruled unenforceable, sometimes by declaring they lack consideration.
Visionaries on the left and right alike object to this balanced approach. Devotees of a greater formalism rebuke any judicial second-guessing of the bargains people make. It should be irrelevant whether a trade is made of different amounts of money or for nominal consideration like $1. People should be free to strike bargains on any subjects they wish with equal dignity—whether deals about paternity, parenting, palimony, adultery or gambling.
Promoters of a greater contextualism would give judges broader license to police not only bargains signaled to be suspect by the form or amount of consideration but a wider range of terms deemed objectionable. That could include authorizing a more probing evaluation, on the grounds of public policy, of contracts not only that may be the product of extortion but about babies, among paramours or between adulterers or sisters playing slots.
These stances are problematic in opposite ways. Greater formalism has the virtue of promoting freedom of contract and increasing the security of exchanges. But expand that freedom infinitely and lose any space for social control. It is difficult to deny that there is at least some utility in some avenues of social control—almost certainly for anti-extortion laws but probably for the regulation of other activities strongly affecting the public interest.
In contrast, excessive zeal for social control constricts a desirable space for freedom of contract. By inviting judicial second-guessing of all bargains, such zealotry would destroy certainty about the security of exchanges. Reasonable people may differ about where to draw the line between freedom of contract and social control.
Contract law’s exact division may not always be clear and can be contested on any given issue. But it seems pragmatic and prudent to enable a wide scope for freedom of contract accompanied by a modicum of oversight to thwart extremes and police gray areas. That, in any event, is the best description of prevailing contract law. And these are not the only tools available to mediate between the extremes. Just because people make a valid contract does not mean it must be performed come hell or high water, as the next chapter shows.
One thing I have tried in many of my classes including Contracts is to add a small negotiation simulation component. It has been more of an experiment than a fully integrated part of the Contracts course.
My goals have been fairly modest. Among them: to expose students to a regular aspect of legal practice. (I remember in my 1L desperately looking for some other niche other than appellate advocacy.) I also want to get students to understand in a very hands-on way how contracts get made and to look at them as more than just exhibits in a lawsuit. I want to provide a corrective to my own tendency to focus too much of the classroom discussion on what lawyers in given case did wrong. As I have mentioned in posts several months ago, conducting an autopsy of cases may lead students to be too conservative in practice. Contract drafting exercises give students an appreciation for how difficult the lawyer’s craft can be.
Contract negotiation exercises add an extra dimension that may be under-emphasized in the business law curriculum generally. I have seen a lot of great exercises and simulations in various courses that involve planning and drafting for a client. There are a lot fewer that require students to engage in the even more difficult process of planning and drafting while sitting across the table from a counterparty. When do you compromise? When do you specify standards or remedies in a contract? When do you fall back on default rules or more general language? It sounds platitudinous, but the essence of contract is that it takes two to contract (unless you are drafting a unilateral contract for smoke balls). The negotiation dimension makes the discussion of any class involving private ordering a lot richer and more complex. (And I agree with Usha, the Contracts may play a special role in bringing private ordering into the first year.)
And to be honest, I add a negotiation exercise not only to give students a sense of the difficulties of contract negotiation, but also its pure fun.
In other courses, I have found good negotiation exercises and simulations in case books (some suggestions in a subsequent post) or developed them myself. In Contracts, I have generally bought some of the simpler contract negotiation exercises that are available in the large offerings of the Harvard Program on Negotiation clearinghouse.
There have been some hitches. First, the Harvard materials are largely designed for teaching negotiation skills, not necessarily for use in a doctrinal class. Many of the exercises might be made better by reworking them to add more doctrinally relevant facts. It would also be wonderful if a clearinghouse had exercises designed for use in doctrinal classes.
Second, again, the limits of class time force us all to make hard choices about our teaching objectives. My aim in Contracts and in other courses is to give a taste of negotiation, but not to replicate a Negotiations course on the cheap. It is important to focus on what I want students to get out of the exercise. This means carefully planning (but not scripting) the class in which we do the post-negotiation debriefing.
Third, it has been hard to figure out when to hold the simulation and how to integrate it into the semester. It seems a little odd to have a negotiation when we are still discussing contract formation and formation defenses. Some students tend to get tripped up trying hard not to make or accept an offer inadvertently rather than focus on the simulation. In an ideal plan for the course, I would have a negotiation exercise before we talk about parol evidence and contract interpretation to allow the negotiation pairs to take a fresh look at what they wrote before to spot potential ambiguities that might create litigation exposure.
Despite these hitches and occasional glitches, adding a negotiation dimension to Contracts (and other business law courses) has seemed rewarding for the student. Can I admit that I have fun too?
I know that many law professors are worried that there is just no feasible way to revamp a first year course (or any other course!) to better meet all the critiques of traditional teaching, at least not without jeapordizing time available for research, colleagues, sleep, etc. But the changes I have made in the first year course are absolutely NOT time consuming; indeed, I'm very sure I spend the same amount of time teaching this way as I do in any traditional course. This comes from an integrated approach to change. You can download a package of sample materials from my course at my webpage (where you can also find articles I manage to write while teaching this way). Here is the basic outline of how this works and how I manage time constraints--my own and the number of classes in a 4 hour semester course.
1. Begin by establishing a clear understanding that a first year course can't and shouldn't do everything. My only goals in this course are for students to be adept at identiyfing issues, seeing how they relate, evaluating ambiguous facts, constructing fact-rich arguments and counter-arguments, exercising judgment, making strategic choices and generating conclusions about the relative strength of different strategies to achieve client goals. I do not try to teach a lot of theory or expose students to all the materials they should be exposed to over the course of a 3 year degree.
2. Then start with the end: the final exam. My final exam reflects the above goals. It is a single 3 page fact scenario. For half of the points (50) the students are asked to create an outline of the issues--no analysis, just organization into issues and sub-issues. Then they are asked to select one issue that they judge to be important to the advice they have to give; their choise is graded out of 20 points. Then they analyze that selected issue in depth, for 30 points. I can grade 6-8 of these an hour--and could easily give 70% of the grading to a TA with a grading sheet--because the outline of issues is just ticking off issues on the list I generate before I grade (I look over the outline of about 10 exams first as well to make sure I haven't missed something the students focused on) and the judgment score for any issue they might select is also pre-determined. Then I can evaluate their legal reasoning and analysis in depth in what turns out to be a short and focused section of prose. There are two more reasons this is quick to grade. First, the structure creates consistency across papers, so I never have to go back and readjust. Second, because as you'll see, the students have answered questions exactly like this in this format during the course--with feedback, class discussion and loads of peer discussion--the students are by and large all presenting coherent answers in form and substance. The differences that emerge reflect depth of understanding, creativity and analysis, not the randomness of realizing that I don't want them to focus on every issue--just what matters, (for example.)
3. Give the students 3 fact scenarios as the basis for 4 assignments during the semester. This requires creating 2 new fact scenarios each time I teach the course--because I always use last year's exam as assignment 4. I give them scenario 1 the first day of class and use it for the first two assignments.
4. Pare back your syllabus to make room for the work both you and they will do on assignments. You can see my syllabus in the materials on my website. (Keep in mind on the syllabus that I teach the course in an every-other-week structure so my classes for a given day are double-dose.) You'll see I cover all the highlights of a regular class but I don't teach all the cases on the doctrine--so maybe only one example each of liquidated damages and specific performance. I also find a few days for some theory, but it is just to give them a taste for future years.
5. Approach the problem-solving work by having students form in the first week or so into groups of 4 (if you have an odd number, you may need a few groups of 3--they get the option of not being graded on one of the assignments although they still complete it and hand it in for feedback.) I do this in a class of, say, 80 students. That's 20 groups of 4. This is the key to success for them and you: they benefit from the deep engagement with a group in solving problems and learning how ambiguos and variable perceptions of fact and argument can be; and you benefit because instead of grading 80 x 4 memos over the semester, you grade 20 x 4. And remember that your time spent grading is the time you would have spent preparing for two regular classes (because we devote two classes to discussing the problems after they're finished), and is reducing the time you spend grading the exam.
6. The first assignment is to create an issue outline for the problem -- drawing only on the rules and cases they have studied up to the date of the assignment. This is where you discover as an instructor that students don't naturally know what is a "legal" issue and they learn to start organizing their thinking into legal categories and logical relationships between issues (sub-issues). Everybody posts their groups memos online and all are required to read every other groups outline. You give them detailed margin notes and feedback to help them learn how to think in terms of issues, talk like a lawyer and see the logic of rules. Then you hold two classes (one of my doubled-up classes) discussing the memos. Asking groups to state what they thought was a sub-issue or not. Collecting votes on the board for which issues were included. I emphasize that an "issue" is a legal question that could plausibly come out both ways--not a checklist of the 3 required elements for the formation of a contract or a catalogue of all possible defenses. So they worry about what is an "issue"--how do they know what could be "plausibly" argued? I facilitate discussion of their ideas about this in class. They start to get it. I post my commented versions of all memos online for all to read and provide a general feedback memo with discussion of troublesome issues and pointing them to good examples for specific ways to handle something.
7. The second assignment is to choose an issue (they can expand their outline to include issues based on rules covered since the last assignment) that they judge to be important to the advice the client is seeking and analyze that one in depth. They struggle like crazy to get you tell them how they're supposed to know what's important. But the way they learn is by talking in their groups. Then they just have to pick something. Then they post their memos for all to read. Then we spend a double-class discussing--collecting the issues the groups chose, getting them to tell me how strong they concluded the client's position was on the issue they chose and why. They see the exercise of judgment; they develop their own. They see (aha!) why it wasn't such a hot idea to write about that really cool misrepresentation issue--because the client wants to enforce the contract.
8. Assignments 3 and 4 require them to do all three things: Prepare an outline, choose an important issue and analyze just that issue in depth. All are commented in detail, posted, discussed in class. You can see why students tell me that they are the least stressed about my final exam because they know exactly what I'm going to ask them to do; and that's also why it's fast and easy and consistent and fair to grade.
9. NOw the question you've all been dying to ask: groups and grading. Groups remain the same during the semester--students need the sense of a repeated relationship to invest in learning how to be a good team player. Yes, there are sometimes group conflicts but real problems are very rare (maybe 1 per semester). I collect confidential 'self and peer assessment' forms from each student (deposited in an online dropbox) after each assignment--students get a chance to tell me what's going on in their groups which helps them feel less frustrated if they are, gives me a heads up for fixing any brewing problems, and generally reveals that the majority of students are delighted to discover that the group work they thought they would hate, they love. They respect the intelligence and hard work and professionalism of their colleagues. Grading: Each group member takes a turn being the "point person" for a memo. The memo is graded out of 15 points. The point person gets the score out of 15 (eg. 12) and the others in the group get a pro rate score out of 5 (eg. 4). At the end of the semester each person has 15 points for "their" memo and 15 points for work on the other memos. Then I assign 10 professionalism points at the end of the semester for contributions in class and group--based on what I can glean from group interactions and feedback. The exam is worth 60 points although I use what flexibility I have in the grading curve to increase the weight on the final if it is significantly better than the in-course grade.
10. Students gain observable mastery over the course of the semester--and I can see as I go along what they are learning and what they are struggling with; this can vary from year to year. But I can see that while they struggle to organize issues at the beginning, they are competent at the end. While they don't see what's wrong with just throwing out pro-client arguments at the beginning, they do by the end. They may present what they think are arguments but are really just assertions ("she will argue this was reasonable") at the beginning, but few do at the end. They figure out--it turns out to be very hard--that a counterargument is not just another argument the other side could make; it responds directly and in a fact-rich way to an argument presented. If A says the history of the relationship of helping each other out makes it reasonable to believe that the statement "we're on" was a manifestation of intent to be bound, then B's counterargument has to address why it's not reasonable to conclude that from the history cited (because helping each other out in the past is about friendship, not contract--for example.) And whereas they are mightily distressed early in the course at the idea they will ever figure out what it means to say that's an "issue" (ie. something a lawyer needs to consider in crafting strategy) and which of the many issues they've identified is "important" to the advice they have to give, by the end very few are including non-issues in their outlines and on a recent exam 80% got full marks for their exercise of judgment.
I really like teaching this course this way--it's very engaging for both professor and student; and you really can see the impact of your teaching and adjust it to produce a better result as you go along. I now could not possibly teach a course in which I had no systematic way to see during the semester what the students are 'getting' and what they are missing. Try this out for one assignment in your course: you will be amazed (distressed?) to find out what you thought they were learning while you were talking about efficient breach and the minority rule in Minnesota.
This post comes to us Claire Hill from the University of Minnesota:
I want to echo the others’ thanks for organizing this roundtable. One thing I’ve found that holds students back is a ‘failure of the imagination’ that they don’t recognize as such. I find that students, hearing about a fact pattern- a hypo or a case- may see the situation through the lens of the party they most identify with, without realizing that they are doing so. They appraise rules and the application thereof from “their own” perspective. Students who have no or limited “real world” experience – students who have, for instance, not had extensive work experience, and have gone to law school right after college-typically seem to cast themselves as employees, buyers, and tenants. They may resist at will employment or be ready to find exceptions; they may be quick to imply the existence of a warranty when a buyer has received flawed goods or services or view sellers as having a very expansive default (and sometimes unwaiveable, or at least very difficult to waive) duty to disclose; they may interpret quite restrictively landlords’ ability to get rid of tenants who have done damage, haven’t paid on time, or have held wild late-night parties, etc.
In my experience, this tendency can, at least in the short term, be fairly easily surmounted, simply by pointing it out. Students’ initial identifications may be supplanted as they become lawyers, both because of their own experiences and because of the types of clients they may have. Moreover, being asked to ‘represent one’s client’ in a classroom exercise would be helpful as well to this end. But the ‘supplanting’ may simply substitute one perspective for another: this issue isn’t just about canonical perspectives – it’s about implicit and subconscious identifications more generally, which is relevant for students not just in their capacity as future lawyers, but also as future policymakers, judges, etc. I think that a useful complement may be express discussion of the issue, with regular reminders as it arises.
I’m very curious to know what others think – do you think this is an issue for students? If so, what ways have you found to deal with it?
I won’t pretend to have the teaching credentials of our panelist, so I will stick to a role as moderator. In response to Gillian’s provocative posts, I have seen that same worrying phenomenon in upper level courses: students struggling when asked to apply legal analysis in a sustained manner to provide advice for a client in complex scenarios. I’ve seen it in problem solving exercises in Business Associations, in semester long simulations such as Business Planning (if any of my current students in that course happen to read this: please don’t fret – this is not a reflection on your performance or your soon-to-be-released grades), and even in the one semester in which I taught in New Mexico’s Business and Tax Clinic.
Let me suggest that there may be at least two variations on this problem. In the first variation, students who are very good at extracting legal rules from cases struggle when asked to apply legal rules to give advice to clients to plan their affairs prospectively. These students do well spotting issues in the context of an existing litigation or threats of future litigation. But when asked what a client should do to mitigate risk or advise a client on a transaction, they sometimes become uncomfortable moving beyond a recitation of legal rules.
In the second variation, students (often those with work experience before entering law school) are very comfortable switching to planning mode. However, many resist working through the details of legal analysis. Here a common problem is looking at simulations primarily from a business perspective and leaving the nitty gritty legal analysis to others.
In either variation, students struggle with the ambiguities inherent in legal analysis.
I write this to fault neither students nor first-year teachers. Often the problem may lie in the way I ask the questions and structure the simulations. But generally, I’ve treated Gillian’s challenge – to get students engaged in sustained application of legal reasoning to complex and ambiguous fact patterns – as something I can address in advanced classes. But her provocative post makes me uncomfortable with that judgment and wonder what I could be doing in the first year Contracts course. Are we wasting a valuable opportunity in the first year? Is the first year conditioning students to treat law as too mechanistic? Do we suffer too much from what a colleague of mine has called the syndrome of treating each class as “three cases and a cloud of dust”?
I’ll let others weigh in, but let me highlight a few overarching challenges and constraints that we all must face in teaching Contracts.
First, time is extremely scarce. As Usha noted in her post, one has to make tough choices of how to use the 40 or so class meetings in a semester most effectively. My initial list of questions should not be taken as an indication that we should do more of everything (and turn the amps up to 11).
Second, although I think that the concern with doctrinal “coverage” can be overblown, it can be difficult in upper level classes if students have not been exposed to things like liquidated damages or specific performance.
Third, as my introductory post hinted, part of my concern is that the first year courses may largely duplicate each other in terms of basics of legal analysis, as well as teaching methods and objectives. More coordination might be in order to ensure that students are not taught the same basic “stuff” (let’s say the role of trial courts versus appeals courts and standards of review) in five different classes, while ensuring that students get some reinforcement and that valuable lessons don’t slip through the cracks. (To give an example based on a party conversation from last night: how many 2Ls and 3Ls are clear on the basic differences between a statute and a regulation?) I write about the need for coordination with trepidation, as I personally dread sitting through long meetings about pedagogy.
Fourth, professors’ own time is scarce. It is time-consuming to develop one’s own teaching materials and there are strong disincentives to doing so even if you already have tenure. So following up on one of the questions in the comments to our roundtable, I wanted to ask Gillian and our panelists:
Are there particular simulations or collections of simulations you would recommend? (I’ll do a separate post on this later).
Fifth, assuming you agree with Gillian’s approach, is the solution a wholesale revision of the first year course or more incremental change?
Sixth, after reading Gillian’s posts, I am wondering how the evaluation and grading works. How do you balance giving the kinds of hands-on feedback that is necessary to hone the type of judgment that she describes with the demands of teaching a large class?
I am sure some of our readers are still slogging through spring grading. On the one hand, we all take a lot of time to grade exams in a fair and thorough manner. But is anyone else left with the sinking feeling that, for all our work on exams, students may not be getting the message on how to improve and grow as lawyers? How do you handle evaluation?
Seventh, first-time Contracts teachers face a greater challenge. She or he will be getting lots of advice on things to add to a course, but, again, there is not room for everything (I learned this the hard way). Innovation can be risky and the first time classroom not particularly forgiving. What advice would our panelists give to the rookie teacher? What should be the focus in her or his first Contracts class?
From the mutual-admiration-but department, I likewise applaud Gillian's perspicacious assessment of the need to teach the basics before we add spins and his appeal to the vibrant problems he describes that sound like excellent teaching devices. In reply to his second post today, however, it reminds me of how the conversation Erik has invited, and that we are having, has been going on in pretty much the same way and involving pretty much the same range of issues, since about the time of C.C. Langdell in the late nineteenth century.
That is certainly the case for basic questions such as the role of stories, transactions, and problems in the contracts course, as well as the distinction Gillian's second post raises between a course about contracts and a course involving the practice of contract analysis. Drawing on a forthcoming chapter I've written for a book Ed Rubin has edited on the future of the law school course book, in reverse order, then:
1. Knowledge or Skills? For more than a century, law teachers have debated whether the purpose of legal education is the delivery of knowledge (the transfer of information) or the development of ability (specifically analytical reasoning). Since Langdell, along with his creation of the casebook, ensconced the law school in a graduate level university program, law teachers have also debated whether legal education is professional training or academic exploration.
In my view, it is both sides of the two dichotomies in different measures. To find the optimal mix, one must appreciate the vast difference between law school and law practice. Even within the most practice-oriented clinic, students remain students and lawyers are the lawyers. But there is also an intimate connection between law school and practice; even in the most theoretical and abstract seminar, students are becoming lawyers. In addition, it seems clear that in both these educational settings, as well as others, the students are acquiring both knowledge and skills.
2. Problems. To those only casually acquainted with the history of the case method, contemporary enthusiasm for teaching problems may seem like a novel pedagogic strategy. But problems have a long and distinguished presence in law teaching dating back nearly a century. In 1922, the prescient Contracts teacher Henry Ballantine stressed the importance of using problems rather than or in addition to cases. They are needed to position law students in the place practice will put them, he wrote, as a “lawyer and investigator . . . seeking the solution.” Ballantine added: “Our case-books and case method of instruction still have undeveloped possibilities.”
In a similar spirit, Lon Fuller, father of the contemporary course book, stressed skills training in his 1947 Contracts book. It featured problems throughout to train students in lawyering skills. In two chapters towards the end of the book the exercises intensified, focusing on the dynamic context of conditions, and devoting “attention to problems of draftsmanship” and “problems of counseling and negotiation which may arise when a condition has not been fulfilled or when the other party has defaulted.” Conditions, after all, is the ultimate place in the first-year where law is actively trying to get parties to work together and avoid litigation, to protect the exchange and breach and preserve the fruits of bargain and promote the institution of contract.
The Fuller book was innovative in its time, and these features that made a “stimulating contribution” to “training in lawyers’ skills” show how truly modern it is. In 1975, two generations later and two generations ago, Charles Knapp’s course book contributed similarly valuable materials to build lawyering skills. As described by Karl Klare, Knapp’s “doctrinal exposition is organized around a series of skillfully drafted hypotheticals, posing difficult counseling issues.” After expressing enthusiastic approval of this approach, Klare opined: “the problem-solving and counseling emphasis is further confirmation of the coming demise of the casebook method of instruction.”
That prediction overlooked how the problem method and the casebook are not antithetical but complements—true at least since Fuller’s 1947 book. The Knapp book remains such a complementary combination of cases, materials and problems, through its 2006 sixth edition.
3. Transactions. Many are amazed that standard Contracts courses in American law schools do not necessarily involve presenting an actual contract to the class, although fragments may appear via the cases. Of course, many casebooks do present contracts and many teachers supply them separately. Drafting exercises even occur. But an interest in the more extensive use of transactional materials has emerged in the past generation, building to a widespread movement today.
To be sure, this is also not exactly something new under the sun, as it was pioneered by William O. Douglas as early as the 1930s. Many books today lend themselves to a pedagogic approach that stresses the lawyer as counselor, adviser, and deal coordinator, rather than merely as litigator. There are practical limits, however, as one of Erik's introductory questions suggestss: the need to spend time covering nuts and bolts topics as well as the sheer matter of volume.
Materials required for rigorous instruction in contract drafting, as well as negotiation and counseling, may span hundreds of pages for a single transaction—many multiples of the pages required to present a judicial opinion, with its appended notes and questions. Even short documents, such as an interest rate swap, or those of moderate length, such as a residential lease, are difficult to walk anyone through. I like Usha's contribution today, which involves allocating a week or so to particular commiment to this dimension.
4. Stories. Story-telling has become an increasingly popular pedagogic strategy throughout the curriculum in recent years. Evidence includes the Stories series edited by Paul Caron and the expanding interest in legal archeology. Again, this is often seen as more novel than it is. Harold Shepherd in 1948 celebrated Fuller’s notes providing additional facts about cases by quipping that the first year is not too soon to let students know that appellate opinions do not provide the full story of a case.
Still, story-telling appeals strongly to some scholars and teachers today, particularly those interested in literary, multi-cultural or outsider approaches to law. That is epitomized in Contracts by the Kastely/Post/Ota casebook, in which literary excerpts woven throughout the material illuminate the context. Their book is imbued with a humanism that more traditional casebooks eschew. This trait is worthy to provide examples of excellent, persuasive, writing to students, regrettably rare in judicial opinions historically afflicted by legalese.
* * * * *
The upshot? There are many ways to teach contracts, and there are many different valid answers to the questions Erik posed--questions and answers that have been asked and given for a century and, if all goes well, for centuries to come. For me, I like a thick combination: stories, problems, deals, and cases, organized to show the wonderfully rich, dynamic and world of contracts, a field that does play a special role in the first-year, as the self-help goals of the doctrine of conditions underscores.
I really like Lawrence's post about the stories in his book that he uses to show students how contract issues are relevant to current events (unlike the dusty cases in the casebook) and for showing contracts in different postures, not just litigation. This looks like a great resource for a first year class.
But let me also tie back to the point in my first post: the problem in our first year contracts courses is not primarily student's appreciation for the role of contract in modern society--that would be a problem for a course ABOUT contract law. While giving students those modern examples will be a great motivator and energizer for the classroom, the real problem is giving students engaged opportunities to PRACTICE DOING contractual analysis. The team-based problems I give students in my course (they work with three different fact scenarios during the semester in four assignments--the first two double up on the same fact scenario) just give fictional accounts of contract problems--like any old contracts exam--and that also gets students engaged with how contracts play out in familiar settings. The problems I've used involve things like:
1. A recent college grad with a new software idea who meets up for lunch with his college roommate who is now very wealthy. Roomate says "sure, I'm happy to invest", budding entrepreneur heads out and spends money, and then roommate is nowhere to be found. (This is a problem I give students on the first day of class--its' the basis for the first two assignments which roll out over the next month.)
2. An art school student (see the picture?) who has helped out his middle-aged children's fiction writer neighbor for years with work around the house is asked by the neighbor to watch the house and take care in particular with some tasks related to her recent book and illustrations. Artwork and misunderstandings about whether there's any deal to pay him for some work he does that saves her from the default of her regular illustrator while she's out of town and unreachable follow. (Also a begining of semester problem.)
3. Family in the yogurt business, with a father who is obsessive about organic standards and a recent college grad daughter who is now an executive. Discussions with president of organic milk supplier, contract reached to go above and beyond the national standards, father becomes suspicious about organic compliance, objects to conduct he believes falls short of the standard he contracted for but which clearly exceeds national standards, wants out of the deal. Students are given short contracts (eg. the 1 pager from the consulting case I worked on on which this case was loosely based), excerpts from organic foods regulations, and asked to advise about what to do.
4. Owner of a horse farm which boards and trains horses has an existing mortgage which she worked out with her long-time local banker years ago which ostensibly includes rights to be in default in exceptional circumstances up to six months; she has taken advantage of this with no trouble a number of times over the years. The local bank gets a sharp new banker when the old one retires who is anticipating the sub-prime mortgage collapes and who is determined to clean up bad mortgages. Owner is in default, thinks she can just take advantage of grace period, tough new banker brings her in, shows her (as it turns out, fake) newsletter predicting large increase in mortgage rates that will kill the ability of owner to pay once her ARM starts to float in a few months, and says "sign here to sell off half your farm and horses and refinance or we foreclose tomorrow." Spiteful sale of horses at unreasonable prices, some sold for meat, etc., ensues. Students get excerpted language from contracts, glossary of finance terms. [This problem is used at the end of the course; as is my usual practice, it is the problem from the previous year's final exam.]
5. Other problems involve two women who run an outdoor adventure outfitting business with unclear partnership/employment relationship, a contract between a mega-firm and a small software developer with suggestions that price is negotiated on basis of expectation that key personnel will be made available who are not, another unclear partnership arrangement to set up a new concept for a wine tasting retail outlet, and one based on the novel Snow Falling on Cedars (contract with Japanese residents of Washington State just before WWII for use of land for strawberry farm; payments in default due to internment.)
Students really get engaged with these problems --and voice the observation that because they are engaged--they really want to figure out what to do for these clients--they are motivated to really dig into what all these legal rules and concepts they are studying in the 'dusty' cases mean here and now.
Experienced teachers know that drawing on current events stimulates student interest, yet our contracts course does not make this easy. To make it easier, my latest book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, tells 45 stories intended to bring this subject alive for a modern audience.
I love old contracts cases as much as the next professor, and judging by their regular appearance in all standard casebooks, we profs love them quite a bit. But students hate them and have a hard time appreciating how cases like the following are relevant to their lives:* the sale of a silk mercer’s business circa 1773 England
* payments for itinerant farming circa 1834 New England
* a delayed rail transport for a mill’s crank shaft circa 1854 England
* musty gambling loans circa 1859 Buffalo
* the destruction by fire of a London theater circa 1863
* sailing ships lacking radio call letters plying for Liverpool circa 1864
* mistakes about bovine reproductive attributes circa 1887
* ₤100 rewards to those catching the flu despite using screwball medicine circa 1893 England
* damages for delay delivering marble for a mausoleum circa 1885
* salmon fishermen using nets off Alaska circa 1902
* an exclusive marketing license for fashions circa 1917
* experimental skin grafting surgery on a young boy’s hand circa 1929
* a bridge to nowhere circa 1929
This list could be doubled or tripled in length, but you get the idea. Students are not often stimulated by such musty, dusty tales, most of which were chosen for our classroom lessons by people like C.C. Langdell, Sam Williston, or Arthur Corbin—all born in the 19th century and dead for generations!
Freshen it up, I say, and I’ve developed a systematic effort to do so—not eliminating these relics, which do remain valuable, but showing starkly, fully, and entertainingly, how they relate precisely to today’s world. This brings modernity into the contracts texts and classroom. How about these:
* poet Maya Angelou’s Hallmark greeting card contract (formation in exclusive license deal)
* a lawyer’s boasts on “Dateline NBC” (offers)
* whether corporate internet privacy policies are contracts (mutual assent)
* effects of construction surprises in demolition of building damaged on 9/11 (duress/pre-existing duty rule)
* Kevin Costner’s pending fight about sculptures for his Dunbar ranch (conditions)
*Donald Trump’s effort to delay loan repayments due to financial crisis (impossibility)
* Bernie Madoff’s Ponzi scheme’s effect on divorce settlements (mutual mistake)
* Sandra Bullock’s recent fight over construction of her Texas mansion (restitution)
* fan breaches of Washington Redskins season ticket contracts (damages)
* Paris Hilton’s recent dispute about hair product endorsement deal (consequential damages)
* whether cell phone service early termination fees are valid (liquidated damages)
* Wal-Mart’s recent defense against employees of foreign suppliers (third-party beneficiaries)
These stories, mostly culled from the recent news, all pivot on the dusty/musty cases, but are much more interesting, accessible and relevant to students. Also appearing in the collection of 45 stories are those involving the following additional characters or topics:
* novelist Clive Cussler (good faith)
* rapper 50 Cent (palimony contract)
* child actor from “Malcolm in the Middle” (infancy doctrine)
* AIG’s employee bonuses (excuses)
* Citigroup’s naming of the N.Y. Mets baseball field (termination)
* the rapper Eminem (interpretation concerning digital music)
* Golden Globes (parol evidence rule concerning telecast rights)
* ownership of the L.A. Dodgers (scrivener’s error)
* pop superrstar Lady Gaga (accord and satisfaction)
* Charlie Sheen / Warner Brothers (conditions, performance, waiver)
* “The Sopranos” (novel ideas and restitution)
* Rod Stewart (restitution after cessation)
* Conan O’Brien / “The Tonight Show” (various)
Four stories in the book will be more familiar to veteran contracts teachers, as they already appear in several leadings books:
* MLK and BU (bargain or gift, reliance)
* Pepsi and the Harriet jet (offers, jests)
* Michael Jordan paternity case (formation, consideration, fraud)
* Michael Jordan product endorsement case (lost volume seller)
* Baby M
My narrative reflects and develops an understanding of how today’s contract law bears on today’s problems—showing how yesterday’s contract law and yesterday’s problems recur in new guises. These stories identify the real world, contemporary social and business settings where ancient problems recur.
These stories are about context, argument, possibilities, limits, alternatives, and deal with things people generally know about today—personalities, electronic transactions, internet exchange, cell phones—and dwell less on the archaic materials necessary to break through the ancient cases (transport and milling at the dawn of the industrial revolution, 19th century navigation technology).
Many of my stories did not result in litigation or judicial opinions. This enables teachers to stress how most contracts are not litigated. It facilitates engaging skills of negotiation and problem-solving and the “transactional” perspective. It’s easy to find the actual contract underlying many of these deals too, for those wishing to walk through such things. My stories are stories, just like judicial opinions are, enabling those with a literary bent to challenge my telling or at least stress the influence of the viewpoints I adopt.
Students like and get all this. Pedagogy is much more effective. And it is much more fun. Of course, all of us have known that current events help learning and are more enjoyable. But it takes a lot of time to incorporate them into a teaching program in a systemic way.
My book is an effort to do that. Notably, I began writing most of the stories as blog posts that I’d use in daily teaching. Now harnessed to the doctrinal terrain and linked to seminal cases, the book brings this course to life like no other device I’ve seen in 20 years of teaching this stuff. To be published by Cambridge University Press in early 2012, I’m excited about this and I hope my fellow teachers of contracts will be too!
Today we kick off a series of summer roundtables, in which we invite law professors to share their insights and innovations in teaching various business law courses. Today and tomorrow, we will focus on Contracts. In addition to Usha Rodrigues, we will be joined by Larry Cunningham (George Washington), Gillian Hadfield (Univ. of Southern California), and Claire Hill (Minnesota). Erin O’Hara (Vanderbilt) will be making some follow-up comments on the roundtable later in the summer.
We make no warranty (express or implied) as to what our panelists will write about. There are a number of different questions and topics they might talk about, including:
- Do they expose the students to transactional lawyering in the course?
- Can we start preparing students to solve problems in a planning mode in addition to a litigation mode in a first year course? How do we expose students to the "creative" or "craftsmanship" aspects of contract law?
- How can we engage students in reading and interpreting (and perhaps even drafting) actual contracts and not just portions of contracts distilled in judicial opinions?
- If they do introduce a transactional aspect into the course, how do they balance it with the traditional objectives of teaching case law (and perhaps U.C.C.) analysis and blackletter contract law?
- Does this course need to fill a special role in the first year curriculum?
- What can professors do better in this course to prepare students for different types of legal practice?
- Do they bring the financial crisis and its contract law dimensions into the course?
- How do they make your innovations work in an often larger sized first year required course?
I am eager to read our panelists’ posts.
The big news from today's sessions at the Annual Meeting of the American Law Institute involved the withdrawal of the 2003 Amendments to UCC Articles 2 and 2A from the Official Text of the Uniform Commercial Code. I teach Article 2 in Contracts, but I have never paid much attention to these amended articles. It was clear from the start that states were not interested. Here is the memo explaining the decision to withdraw the amendments.
Every once in a while I come across a law review article that is of great use after I punch the clock and go home. Now that the family and I moving (and looking to rent our house) we’ll need to review our existing homeowner’s policy (and maybe get a second one soon). But do I have to read all the boilerplate? Why not just go with a reputable insurance company that offers the best premium?
Dan Schwarcz (Minnesota) has an interesting study forthcoming in the Univ. of Chicago Law Review that shows that there are in fact marked differences in the terms of these policies. The NY Times blog has a nice write up of Dan’s article.
The Harvard Business Review has been all about failure lately (check out the April special issue). I am told that management scholars overemphasize success, but lawyers are sometimes accused of obsessing about failure. Two years ago, I wrote a post about "learning from failure," in which I asserted, "those of us who spend our time in law schools know all about learning vicariously from failure. If you approach law transactionally, that may be the main point of studying judicial opinions."
While I think there is some truth in that idea, I wonder if the study of law might benefit from a more conscious emphasis on failure. Instructors sometimes look for planning insights in response to judicial opinions ("what could the parties have done differently to avoid this litigation?"), but the bulk of our time in law school is devoted to sifting through the rubble of failed transactions. The result is that we become quite adept at dealing with failures, but we don't necessarily learn much about avoiding future failures.
The challenge with trying to learn from failure when your primary source materials are judicial opinions is that judicial opinions often do not contain the information one would most want to know. One of the things I like about Contracts: Law in Action is that the authors supplement the judicial opinions with other materials that allow for more reasoned discussion of the causes of failure. We need more casebooks like that, but they are hard to produce.
I do not teach Contracts. I have never wanted to, until maybe this week. Because I couldn't figure out how to work Charlie Sheen into Torts. (I'm sure in after a few more Sheen monologues/interviews, I'll have something.) Unless you were prescient enough last month to create filters that would scrub all media for the words "Charlie Sheen," then you know by now that Warner Bros. has fired him from the No. 1 television show in America, though one I have never seen. Because Sheen makes about over $1 million an episode, whether Warner Bros. or Sheen breached the contract is probably worth fighting over, so this morning Sheen filed a lawsuit against Warner Bros. and producer Chuck Lorre. (TMZ has the complaint here.)
Commentators have been weighing in on the likely success of such a suit already, realizing that at some point the show would not go on and that litigation would ensue. Interestingly, Sheen's contract does not have a standard morals clause, but it has three provisions that his bosses are hanging their hat on. First, the contract allows the producers to treat an action as a Sheen default if "Producer in its reasonable but good faith opinion believes Performer has committed an act which constitutes a felony offense involving moral turpitude under federal, state or local laws." Sheen has been to rehab twice this year and has admitted to taking felony-level amounts of drugs. However, he has not been convicted of a felony or is currently facing charges. And, the producers turned a mostly blind eye to all of this until quite recently, when Sheen seemed to hit rock-bottom (and his nadir seemed to include televised rants against the producers). For example, his contract was last renewed in May, when he was facing felony charges stemming from a domestic disturbance. Warner Bros. seemed happy enough to let its popular star garner headlines and viewers with his self-destructive antics, at least for awhile.
Warner Bros. also points to its Force Majeure clause, which is not a simple "Act of God" clause. The forces that are listed there relieve the producers from performing the contract if the death or incapacity of a principal star preclude them from doing so. Of course here Sheen is the principal star. Finally, Warner Bros. includes a reference to a provision that gives the producers control over publicity of the show, requiring performers to get prior approval of show publicity. Here, Sheen seems to be giving some unauthorized publicity!
Larry Cunningham has a nice post on contracts casebooks, with a little Amazon data to back it up. Bainbridge, who has the best selling corporations casebook, take a different view about the best way to assess their merits - lean and mean are his bywords. Read the comments too, if you're interested in that sort of thing. I've been thinking about the issue of casebook concision lately, especially since at Wharton, we teach such concise courses that there's literally not a concise enough casebook in existence to support them. We accordingly have put together our own stripped down materials in most of the classes I'm aware of. And it strikes me that this is a problem for the short courses that surely will only grow in number in law as well as business schools. Is there's a good couple-week course casebook? I'm not sure that many are made at all - perhaps that's the next growth sector for the textbook industry.
[A German investor who has lost money in Dubai] is now trying to bring suit in a court run by the Dubai International Financial Center, a government body set up to attract investors, which operates largely on British-based law and is independent of the opaque Dubai court system, where cases are conducted in Arabic and plaintiffs must go through local Emirati representatives.
Dubai’s real estate regulators have issued a flurry of rules since 2008 to clarify the situation and to comfort potential investors. But new rules sometimes contradict others issued just months earlier, often in ways that leave developers with the advantage and property buyers in a legal limbo, making many wary of ever investing in Dubai again.
Nightmare in the desert.