The only negative from the first meeting of the Section on Transactional Law and Skills this afternoon was the absence of Section Chair Tina Stark, who was unable to attend. Tina provided the energy and leadership for the creation of this new section. We are all indebted to her, and we missed her today.
The section meeting had two parts. First, two speakers who were selected from the call for presentations described their efforts in transactional education. Carol Morgan talked about corporate counsel externships at the University of Georgia, and she rekindled my interest in this form of transactional education. When I interviewed for my first academic job in 1993, I talked about the need to bring transactional training to law students, and shortly after arriving at Lawis & Clark, I created the "Clinical Internship Seminar: Corporate Counsel," which seems similar to the Georgia externship program. It's a great context for students to learn something about business and law.
Karl Okamoto followed by describing his incredible LawMeets competitions, MiniMeets tools, and ApprenNet program. I am not sure if I can claim to have been there at the creation, but I remember Karl floating some of these ideas at a dinner just three or four years ago, and I am astounded by the amount of progress he and his team have made. You can read more about all of this in The National Law Journal. After hearing Karl's presentation, I have decided to use a couple of his MiniMeets in my Business Associations course this next semester. If you want to include some transactional lawyering in one of your courses, I know he would be eager to discuss his products.
In the second part of the program, I moderated a panel discussion on "Getting it Done." Law schools have embraced the teaching of transactional skills, but many questions remain about how best to execute this strategy, and this panel featured people who were implementing transactional training on a grand scale. Scott Burnham of Gonzaga described the first-year Transactional Skills and Professionalism Lab; Jim Moliterno of Washington and Lee discussed transactional immersion and other components of that school's well-known third-year program; Bob Rasmussen of USC talked about the importance of interprofessional education for business lawyers and efforts at USC to encourage such training; and Janet Thompson Jackson related her experiences as transactional clinician at Washburn. The panelists were uniformly excellent.
While we touched on many subjects during the panel session, one point of emphasis among the panelists and the audience was the importance of adjunct professors. Eric Gouvin referred us to his ABA Report on Best Practices Report on the Use of Adjunct Faculty, which is essential reading for academic deans and others who work with adjunct professors. Eric noted that the ABA encourages law schools to employ adjunct professors. While that is true, the AALS has a membership requirement limiting the use of adjunct professors. My sense is that this requirement is not well known among law professors who have no experience in administration. AALS Bylaw 6-4(d) provides:
In each division of a member school's program, each student shall have the opportunity to obtain substantially all of his or her instruction leading to the Juris Doctor degree from the school's full-time faculty.
The interpretation of this bylaw appears in Executive Committee Regulation 6-4.1:
Full-time Faculty Requirement. A member school demonstrates compliance with Bylaw 6-4(d) if in each division of its program, the school's full-time faculty offer at least two-thirds of the credit hours or student-contact hours leading to the J.D. degree. (emphasis added)
Most plans for increasing transactional training rely heavily on the use of adjunct professors, but truly ambitious programs run the risk of pushing a school into dangerous territory with regard to this provision. I hope the AALS' emphasis on full-time faculty is not merely a protectionist measure from law professors. In any event, if we are serious about encouraging experiential learning during law school, the Executive Committee will need to revist this interpretation.
The emphasis of this year's program was on transactional education, and I think it was terrific. Tina should be proud. However, I know that Tina, our new chair Joan Heminway, and the other officers and executive committee members of the Section are committed to the promotion of transactional scholarship, too. If you are interested in transactional teaching or scholarship, I hope you will support this Section.
The Third Annual Transactional Lawyering Meet is expanding to five cities with regional rounds being held on February 17, 2012. The national championships will be hosted by the Earle Mack School of Law at Drexel University in Philadelphia on March 29 and 30th. The Transactional Lawyering Meet is a novel “moot court” experience for law students interested in transactional practice. For more information, go to www.lawmeets.com or contact Professor Karl Okamoto at firstname.lastname@example.org.
This post comes to us from Erin O'Hara, Professor of Law and FedEx Research Professor at Vanderbilt University Law School. The post is a follow-up to our Roundtable on Teaching Contracts. You can view all the posts in this Roundtable here.
In the Fall of 2007, I undertook to teach my Contracts course in a way that helps students to develop transactional skills. It seemed shameful that most students leave the first-year course without ever seeing an actual contract. I wanted to expose students early to the work of transactional attorneys, especially given that about one third of practicing lawyers earn their livelihood in this way.
Like the earlier contributors to this discussion, I began to think about changing the course on the margin. Maybe I could show the students some real contracts or add a negotiation or drafting exercise, but as mentioned already in this discussion, it was indeed difficult to add materials to an already crammed four-hour course. When I expressed frustration to my then dean Ed Rubin, he responded by suggesting that I needed to throw out the traditional contracts course and start over in order to make room for a modern approach to the subject. The suggestion seemed ludicrous to me at first, but once the message had time to sink in, I realized that Ed was right.
Contracts may be the only law school course that spends nearly all of the semester at the edge of the subject and almost no time at the subject’s center. Professors teach about distinctions: the difference between promise and contract, between contract and tort, between contract and property, and between enforceable and unenforceable promises. With all of these topics, the course attempts to define the boundaries of the subject matter of contract, and in the end students learn far more about what contract is not than they do about what contract is. Ed convinced me to start at the center of contract and move outward from there.
The center of contract is about negotiating and drafting an agreement and/or a change in anticipation of the fact that one day the parties (with or without the aid of a court or arbitrator) will have to determine what that contract means. The vast majority of contracts that lawyers draft do not result in formal disputes, and, when they do, the parties fight much more often about what the contract provides than they do about whether they have a contract. These are the issues that should dominate in Contracts.
These issues are difficult issues for first-year students to grapple with because most have no experience with the subject matter at hand. Stories about hairy hands and Harrier jets and promises to marry resonate with the students, but warranties and conditions and due diligence seem far more remote. Students needed context to begin to grapple with these issues, so I began to look for a simple story that could draw the students into the world of transactions and the role of the lawyer and the contract in that transaction.
Claire Hill provided me with the best possible story: a play that comprised the last chapter of James Freund’s book, Anatomy of a Merger. The play enabled the students to imagine the transactional setting and to begin to understand the role of the lawyer in that setting. The play enabled the students to better grapple with the concepts of risk assignment and conditions and warranties. It gave the students an appreciation for the importance of carefully crafting contractual language and of gently focusing the client on possible problems that can be avoided or minimized with contract language. This play, along with some supplemental materials, provided the basis for a short one-week unit introducing students to The Contracting Environment.
Unit II focused on Contract Interpretation, a subject we covered for 4-5 weeks. We focused on the distinction between promise and condition early and often in this course. I will confess that I left my first-year Contracts course not really understanding what a condition was. In contrast, my students truly understood their function by the end of the semester. We explored the difficulties that can arise with ambiguous contract language, and in the process covered the canons of construction and the use of evidence outside the writing. We then covered default rules and explored the difficulties and benefits of silence in contract drafting. Finally, we covered change and modification and the good faith obligations.
Unit III covered Breach and Remedies (including both damages and self-help provisions). Unit IV covered Contracts of Adhesion. The syllabus included a separate unit on these contracts because in the first several weeks of the course we had studied the negotiation and drafting of contracts by sophisticated commercial parties and their lawyers, and I wanted the students to focus on the important differences between the two contract settings. A final unit, about 3 weeks long, explored contracts/promises that are not enforced. We covered lack of agreement, lack of consideration, formalities, public policy, and impossibility, impracticability, and frustration of purpose in this last unit. In the end, the students were exposed to virtually all of the concepts that they need for their upper-level courses and for bar-exam study (we unfortunately did not cover third-party rights).
Throughout the course we looked at actual contract provisions. In addition, three exercises were used to force the students to apply the course concepts. In week 4 students critiqued a very basic band booking agreement (this is Nashville!), in week 7 students drafted a simple requirements agreement (after giving them a detailed factual scenario), and in week 10 they negotiated and drafted a provision covering the circumstances under which the tenant could withhold rent from the landlord in a commercial lease setting. In week 12 students were invited to attend a lunchtime panel with 5 transactional lawyers who described their practices and talked with students about the world of transactional lawyering. Some of the panelists have served as mentors to the students interested in a transactional practice. The final exam asked students to critique and propose changes to two different contracts. In one, the lawyer was representing the client who was one of the parties to a commercial transaction where the other party had produced the first draft. In the other, the student was placed in the role of new in-house counsel asked to explain to a corporate officer the significance of the provisions in her predecessor’s draft sales agreement and to comment on any provisions that might not be legally valid (many of the customers were ordinary consumers).
I expected the students to excoriate me in their evaluations at the end of the semester. Surely the students would conclude that they had been turned into guinea pigs for some strange pedagogical experiment that robbed them of the sense of comfort that accompanies their reliance on textbooks and study aids (not to mention my old Contracts exams). I was prepared for the beating because I believed in the worth of the course change. In fact, however, I received the highest teaching ratings I have ever received at Vanderbilt. Students completely understood that 21st century law practice was based much more closely on the materials to which they were exposed than they were on the cases studied in the other Contracts section. Student comments indicated that they believed that the innovation was valuable and that their professor was working extremely hard to deliver to them a better educational experience.
The students did not just appreciate the effort being made to reform the course. They actively engaged the materials in a manner that showed that they understood what could be exciting and rewarding and yet difficult about transactional legal practice. For example, a number of students raised practice-relevant ethical issues during the course of the semester, including the circumstances under which the client should be advised to disclose disadvantageous information to the other party. And several expressed interest in transactional practice because it seems like a positive sum game. Others have written about how law schools manage to turn student excitement into cynicism and depression in just one year of law school. The causes for dissatisfaction with the prospect of practicing law are many, but one surely is that litigation is at best a zero-sum game and often a negative sum game. A transactional course enables the students to envision a legal practice in which the parties that they represent can all benefit from the transaction and the lawyers’ efforts. For several of my students, this was both comforting and energizing. I didn’t intend to engage the students on ethical issues or career satisfaction, but the approach of the course did produce these consequences. Enrollment in our upper-level transactional courses has skyrocketed, and my students tell me that they feel much more comfortable in these courses than do the students who were not exposed to a transactional perspective in Contracts.
The materials assigned were terrible in the sense that they required both the students and the professor to work harder than necessary. I assigned the Farnsworth hornbook to give the students a sense of the black letter law that they would need to respond to with their contracts. Unfortunately, however, the extensive detail of the hornbook when used as primary material rather than as review material caused unnecessary stress for the students and countless hours of explanation back in my office. Those materials were supplemented with Restatement and UCC provisions as well as a few cases. (I left to the other first-year professors the task of learning to read a case to distill its legal principles and instead primarily used the cases in Contracts to show students some of the situations that can arise and the ways that courts can treat contract language in addressing those situations.) Nothing tied these materials together, so I wrote a series of unit memos to provide them with needed thematic direction.
At Vanderbilt I had the luxury of being granted a semester’s research leave as my reward for my investment in the course. Without that bargain I frankly would have continued to muddle along with the traditional casebooks because the cost to my research while revising the course was significant and I needed to know that I would get that research time back somehow. My goal in the next two years is to produce the course materials necessary for others to teach Contracts from a transactional perspective without giving up substantial research time. Currently available course materials make it possible to add transactional garnish to a litigation-based course, but we can and should provide out students with more than just a garnish in the first year.
This roundtable has gotten so juicy that I am going to exercise my prerogative as convenor to step in briefly and talk about a theme that underlies many of the posts so far. I do so with humility: I have taught corporate finance only in the context of a Business Planning course organized around numerous long drafting and negotiation exercises. These exercises involve entrepreneurs starting a company and (in later exercises) venture capitalists. The class seems a lot like what Joan describes she does at Tennessee and what I know Karl has done in many of his classes.
For me, the real joy of the class is having the students fit puzzle pieces together. I hope most of them have the following "aha" moment. Instead of arguing that the there is a "right" answer that is works for the corporation, they realize that whether a particular feature -- whether it is a conversion right, a liquidation preference, or whatever -- is "good" depends on where their client falls in the firm's capital structure. It is a leap beyond the management-shareholder relationship that is central to business associations. And it goes beyond debtors versus shareholders. (I think it also goes to the questions in Eric's class on AIG bankruptcy versus bailout.) Even two shareholders with the exact same preferred shares (or bonds) may have different interests with respect to a particular provision depending on their holdings, time horizons, discount rates, degree of risk aversion, and estimates of the firm's prospects.
As I mentioned in the Contracts roundtable, the negotiation dynamic is key for me in teaching. Not because I aim to teach negotiation skills, but because I think this lens helps students see how these concepts apply in practice. There are few times a transactional lawyer just drafts an agreement of any complexity without some negotiation. There are going to be some room for value creation in crafting the terms of debt or preferred stock (which can throw off students inclined to fight every inch). There is also a large domain of distributive/zero sum issues (which is discomfiting for students who want to find a win/win in everything).
Knowing which issues are important, for whom, when, and why involves some facility with math.
This can be borne by two handles. Here's the negative spin: there is a large helping of "eat your vegetables" in this kind of course. But being innumerate means someone will steal your lunch money on the playground and you won't even know it. I agree with Karl, that this is true not only for transactional lawyers - but for any lawyer. Not understanding the time value of money means potential malpractice in the context of settlement agreements.
Here's the positive spin: being familiar with corporate finance helps lawyers create enormous value for clients, it helps students get jobs in a tough market, and the puzzle solving dimension can be immensely gratifying intellectually.
If students leave a class with a deep understanding for the "where you stand depends on where you sit in the capital structure" point and having sharpened some quantitative reasoning and realized why that is so critical, I'm a lot closer to happy.
Today and tomorrow we continue the Conglomerate's series of summer roundtables on teaching business law courses with a roundtable on "Teaching Corporate Finance." (Here are links to our earlier roundtables on teaching Contracts and Banking Law/Financial Institutions.)
We are joined by the following roster of distinguished scholars and teachers in the corporate finance area: Brian Broughman (Indiana -Bloomington); Trey Drury (Loyola - New Orleans); Eric Helland (Claremont McKenna); Joan MacLeod Heminway (Tennessee); and Karl Okamoto (Drexel).
Our panelists may take different approaches to teaching the course. Some of them may not teach a "corporate finance" course. Indeed many schools offer courses in Venture Capital, Entrepreneurship and Finance, Deals, or Analytic Methods for Lawyers that still incorporate core concepts involving the capital structure of firms.
But there are still many choices to be made in approaching this subject matter. Should the course focus on case law? Should it introduce students to quantitative aspects of finance? What should we expect students to get out of the course? (A question perhaps we could ask of every roundtable panel.)
As with earlier roundtables, we give our panelists free rein to talk about any aspect of teaching corporate finance. Some of the topics they may discuss include:
- What are the core topics of the course as you teach it?
- Do you have a transactional focus to the course?
- Do you use simulations or problem sets? Case studies?
- How do you integrate finance theory and quantitative analysis into the class?
- Do you orient the course towards a particular type of transaction or type of company raising capital (e.g. start-up companies seeking financing, or venture capital)? How important is debt?
- How does you course cover (or integrate with other courses in the curriculum that cover) topics like accounting?
- How much do you focus on the powers and duties of boards? The rights of shareholders and debt holders?
- Where do you draw the boundaries among what should be taught in your course and what is/should be covered in other courses, like corporations, corporate governance, or securities regulation?
- How, if at all, has the financial crisis changed your course?
- Do you cover derivatives, asset-backed securities, and other structured instruments?
- How do negotiate the needs of students with no finance background with those with vast experience?
- What advice would you give to a rookie teacher?
Let's get started!
The AALS Section on Transactional Law and Skills will hold its inaugural section meeting during the AALS Annual Meeting in Washington, D.C., on Saturday, January 7, 2012 from 3:30-5:15 pm. The topic for the session is “Transactional Law Teaching and Scholarship: Moving Forward.” The Section invites submissions of proposals relating to teaching or scholarship on any aspect of transactional lawyering. Please submit proposals of no longer than two double-spaced pages by August 15, 2011 to:
Eric J. Gouvin
Western New England University School of Law
1215 Wilbraham Road
Springfield MA 01119
Proposals will be reviewed by officers and executive committee members of the Section:
- Chair: Tina L. Stark, Emory University School of Law (through 6/30/11); Boston University School of Law (beginning 7/1/11)
- Chair-elect: Joan MacLeod Heminway, The University of Tennessee College of Law
- Secretary: Eric J. Gouvin, Western New England University School of Law
- Treasurer: Afra Afsharipour, University of California, Davis, School of Law
- Lyman P.Q. Johnson: Washington and Lee University School of Law and University of St. Thomas (Minneapolis) School of Law
- Therese H. Maynard: Loyola Law School Los Angeles
- D. Gordon Smith: Brigham Young University Law School
Please forward this Call for Proposals to any colleagues who may be interested.
Under the leadership of Tina Stark, now with Boston University, an ad hoc committee of transactional lawyering professors proposed a new section on transactional law and skills to the Association of American Law Schools. We recently received word that the AALS has approve the new section, and we will have our first section meeting at the annual meeting in Washington D.C. If you are already filling our your schedule, please plan to attend the inaugural meeting on Saturday, January 7, 2012 from 3:30-5:15 pm.
Chair: Tina L. Stark, Boston University School of Law
Chair-elect: Joan MacLeod Heminway, The University of Tennessee College of Law
Secretary: Eric J. Gouvin, Western New England University School of Law
Treasurer: Afra Afsharipour, University of California, Davis, School of Law
Lyman P.Q. Johnson: Washington and Lee University School of Law
Therese H. Maynard: Loyola Law School Los Angeles
D. Gordon Smith: Brigham Young University Law School
More information about the annual meeting program will be forthcoming soon. In the meantime, thanks to all who have worked on this project, which I hope will represent a significant advance for the study transactional lawyering.
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?
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.
If you are at Law & Society this Friday and Saturday, come to the mini-conference on Entrepreneuship & Law that Brian Broughman (Indiana - Maurer School of Law) and our own Gordon Smith (BYU) have organized. Here is the line up:
Friday, June 3, 2011
8:15 am to 10:00 am Regulating Entrepreneurs 2122 (Chair: Brian Broughman)
- Mira Ganor (Texas), The Power to Issue Stock
- Erik Gerding (New Mexico), Shadow Banking, Financial Innovation, and Regulatory Arbitrage
- Michelle Harner (Maryland), Mitigating Financial Risk for Entrepreneurs
- Poonam Puri (Toronto), The Regulatory Burden of Corporate Law
- Discussants: Kristin Johnson (Seton Hall) & Sarah Lawsky (UC Irvine)
12:30 pm to 2:15 pm Governance Structure of Entrepreneurial Firms 2322 (Chair: Brian Broughman)
- Brian Broughman (with (Jesse Fried & Darian Ibrahim), Delaware Law as Lingua Franca: Evidence from VC-Backed Startups
- George Geis (Virginia), Organizational Contracting and Third Party Rights
- Alicia Robb (Kauffman Foundation), Entrepreneurial Finance and Performance: A Transaction Cost Economics Approach
- Discussant: Bobby Bartlett (UC Berkeley)
Saturday, June 4, 2011
8:15 am to 10:00 am Law, Entrepreneurship, and Innovation 3116 (Chair: Gordon Smith)
- Mike Burstein (Harvard), Exchanging Information without Intellectual Property
- Sean O’Connor (Univ. of Washington), Transforming Professional Services to Build Regional Innovation Ecosystems
- Peter Lee (UC Davis), The Accession Insight and Patent Infringement Remedies
- Karl Okamoto (Drexel), Law and Entrepreneurship: An Assessment Approach
4:30 pm to 6:15 pm Global Entrepreneurship 3519 (Chair: Gordon Smith)
- Afra Afsharipour (University of California, Davis), US Private Equity Investments in India
- Sofia Johan (York Univ.)(with April Knil and Nathan Mauck), Determinants of Sovereign Wealth Fund Investment in Private Equity
- Gordon Smith, Stability and Adaptability
Permalink | Conferences| Empirical Legal Studies| Entrepreneurs| Entrepreneurship| Finance| Financial Crisis| Law & Economics| Law & Entrepreneurship| Legal Scholarship| Transactional Law| Venture Capital | Comments (0) | TrackBack (0) | Bookmark
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.
A message from Tina Stark:
If you are attending the AALS Meeting, please come to the organizational meeting of the provisional AALS Section on Transactional Law and Skills and sign the petition in favor of creating the new Section. The meeting is being held on Wednesday, January 5th from 2:00 p.m. to 3: 45 p.m. at the Hilton Hotel, Yosemite A, Ballroom Level. We need signatures from at least 50 professors from at least 25 law schools. Please stop by. Signing will just take minute. A copy of the petition is here.
If you are unable to attend the meeting, you can sign the attached petition and send the original (not a PDF) by snail mail to me for receipt no later than January 15, 2011.
Professor Tina L. Stark
Emory University School of Law
1301 Clifton Road
Atlanta, GA 30322
As the Section will not yet be formed, no official business will be conducted, but we will discuss the purpose of the Section and the process for gaining provisional and then permanent status.
Have a wonderful holiday.
If you read the petition, you will note that I am on the Executive Committee for the proposed Section, and I think this would be a wonderful development for teaching and scholarship about transactional lawyering. If you agree, please take a moment to sign the petition.
In my continuing quest to advance the study of transactional lawyering, I have been thinking about course materials for transactional courses.
If you think about creating transactional courses that have analogs in the traditional, litigation-oriented curriculum, you observe that the first moves into transactional lawyering were made in the so-called "skills courses," such as contract drafting and business planning. These courses bear a strong methodological resemblance to traditional legal writing and advocacy courses, respectively.
More recent innovations in transactional teaching, including most Deals courses, have a fair bit of theory.
What I haven't seen are transactional courses modeled on traditional doctrinal courses, with important contracts as the primary course materials. Most law school casebooks feature excerpts of important cases, which reveal the tensions in legal doctrines or push doctrines in one direction or another. Has anyone attempted to compile of book of landmark contracts?
Some casebooks, including my Business Organizations casebook, include case studies, but these case studies focus on illustrative transactions, not landmark transactions. Would it be useful to create a casebook featuring landmark transactions? How would the book be organized? What transactions would you think to include?
This fall I will be teaching first-year Contracts again for the first time in three years. Being a loyal Wisconsinite, I will be using Contracts: Law in Action (the so-called "Wisconsin materials"), a new edition of which is forthcoming just in time for the start of class.
I have not done a survey of Contracts casebooks, but I suppose that the Wisconsin materials are as well suited to a transactional approach as the next casebook. The voluminous notes with background information on the cases lend themselves to transactional discussions, and I would like to be more self-conscious about bringing those insights into the classroom this year.
Last summer Erin O'Hara did a presentation in a plenary session at the AALS Workshop on Transactional Law on her plan to develop materials for a casebook featuring a transactional approach to Contracts. This summer Tina Stark hosted her a conference on Transactional Education, which featured some discussion (available on Emory iTunes) of first-year Contracts. And Tina has a start on assembling transactional materials.
Building on this foundation, I have a modest proposal: if you are teaching Contracts this fall and would be interested in corresponding about integrating transactional approaches into a traditional doctrinal course, please email me. I don't have a grand plan, but my hope is that we might get a group who would be willing to share ideas and perhaps materials on a listserv. We don't need to be using the same casebook, as I assume we are all covering roughly similar ground in the introductory course.
Earlier this month, I wrote of conference realignment talks: "College presidents have the nominal power to end this silliness, but they are delegating that power to the conference commissioners. Two of those commissioners ([Jim] Delaney [of the Big 10] and Larry Scott of the Pac 10) are making the others look like dumb jocks."
Now that the dust has settled -- albeit probably only temporarily -- I would revise that evaluation. Jim Delaney and the Big 10 made off with a substantial prize (Nebraska), and Delaney still looks like a genius. Larry Scott ... not so much.
Scott and the Pac 10 made a play for six Big 12 teams: Texas, Texas A&M, Texas Tech, Oklahoma, Oklahoma State, and Colorado. That would have been a triumph for the Pac 10, though it's not clear why the Texas and Oklahoma schools would be interested. I suspect that their initial interest was feigned as a means of threatening Missouri and Nebraska, both of whom were playing footsie with the Big 10. As it turned out, the Big 10 didn't want Missouri, at least not yet, and I suspect that Nebraska ultimately made the move partly as a preemptive strike because it feared the possibility of being left behind with Kansas, Kansas State, and Iowa State. Well, that and the fact that the Big 10 was offering lots more money than the Big 12. Bluff called, Texas.
Somehow during the Pac 10 negotiations -- possibly in an effort to forestall an attempt by Baylor to displace Colorado in that group? -- the Pac 10 made an offer to Colorado that was not conditional on the agreement of the other schools. Colorado accepted the offer before the other schools had made up their minds. When the other schools turned away, the Pac 10 was stuck with 11 schools, and Utah was brought along to get to an even 12. This entitles the conference to hold a championship game in football, and that is no small fact, but I suspect this was not the outcome the existing Pac 10 schools were hoping to achieve.
With all due respect to my friends from Colorado, that school has a horrible athletic program, and it's impossible to believe that the Pac 10 would have wanted them unless they were part of a package. I realize that Colorado had turned down the Pac 10 a long time ago, when the athletic program at Colorado was in better shape, and I know that rumors of a Colorado-Utah move had been circulating for some time. I just don't believe it would have happened if the other schools in the Big 12 had not been in play. I am not the only person who has this perspective. Jon Wilner just wrote a column about the Pac 10's buyer's remorse. The schools in the Pac 10 will eventually get a better television deal, but not mainly because of Colorado and Utah ("'Gaining Colorado is absolutely meaningless for TV purposes,' said a consultant who has negotiated TV deals for college conferences. 'And gaining Utah is close to meaningless.'"), and while they will gain from the conference championship in football, schools in the Pac 10 will lose in many other ways.
At the moment, therefore, Larry Scott has some egg on his face. It seems to me he could have used a good transactional lawyer.