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
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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.
New Mexico will be looking to hire a clinician -- tenured, tenure-track or visiting -- for its Business and Tax Clinic in the Fall, and is looking to get a head start identifying lateral prospects over the summer.
Here is the ad:
BUSINESS AND TAX CLINIC
The University of New Mexico School of Law invites applications and nominations for a faculty position beginning in the fall of 2011, teaching in UNM’s Business and Tax Clinic. The Business and Tax Clinic is part of UNM’s nationally-ranked clinical law program. This Clinic teaches students to practice law in a commercial setting, specifically assisting individuals, small businesses and non-profit corporations with a variety of transactional and dispute resolution issues, as well as clients with consumer, debtor-creditor, tax, and home mortgage issues. It emphasizes economic development issues and collaborates with our other clinics. The position is full-time and may be probationary leading to a tenure decision, tenured, or visiting. Salary and terms of employment will depend upon the qualifications of the successful candidate.
Candidates must possess a J.D. degree or equivalent legal degree. Preferred qualifications include a background teaching in a clinic handling transactional issues or transactional or litigation practice experience in the following areas: commercial law, corporations, tax, entrepreneurship, economic development, consumer law, or debtor-creditor law. Teaching experience in the doctrinal business and tax curriculum will also be considered, as well as in other law school clinical settings. Preferred qualifications include a record or promise of excellence in teaching and scholarship.
For best consideration, applicants should apply by June 30th, 2010. The position will remain open until filled. Applicants should attach their cover letter and CV to their online application via the UNMJobs website: https://unmjobs.unm.edu/. The position is listed as posting number 0806253.
The University of New Mexico is an Affirmative Action/Equal Opportunity Employer. UNM is committed to promoting and supporting the diversity of our campuses.
Blogger notes: I am told the "best consideration date" mentioned above is intended for lateral candidates. The hiring committee will review entry level candidates through the AALS FAR and Faculty Recruitment Conference in the Fall.
UNM is also looking to hire two additional positions: one in Civil Procedure (position number 0806250 at the above website) and one in either Constitutional Law or Property (0806251).
My colleague Liz Rapaport is head of the Hiring Commitee.
Two hypotheses: transactional lawyers are better at Sudoku than crossword puzzles, and litigators are better at crossword puzzles than Sudoku.
A related hypothesis: transactional lawyers prefer the logical games section of the LSAT, and litigators prefer the reading comprehension section of the LSAT.
Here is a teaching trap I find myself falling into on a regular basis – just like a character from Lost and a hidden pit in the jungle. (Spoiler alert: the whole island is really just inside a kid’s snowglobe). I lead a class discussion on a case. Somewhere during the discussion, I try to push the discussion towards “What would you have done differently had you been a lawyer advising a client to avoid this litigation?”
Sounds like a fair question, right? It is supposed to get students thinking more prospectively – to help think like planners. Or even to think about planning for future litigation.
The problem is that the discussion can too easily lead into a discussion of what the lawyers did wrong in a case (if lawyers were even involved). There is not just a risk of hindsight bias. When reading a case, we are only seeing the facts a judge chose to highlight before making her ruling. Who knows what the total universe of facts in the dispute were? To some extent this can be rectified by the “law stories” scholarship – those scholarly investigations of the broader context of the case not mentioned in the record. Personally, I find the value in that scholarship not so much in re-thinking whether an opinion got it “right” (judicial opinions may matter more in how they come to be used by later courts than whether the facts were “correct”; how often would a litigator be able to convince a court not to use a case because later scholarship uncovers a richer factual context to a case not mentioned in the actual record?). Instead, I find the law stories scholarship invaluable for answering bigger questions – including evaluating how well the lawyers performed at their craft.
But even when I have a richer set of facts for casebook cases, I worry that I am still giving my students a skewed view of lawyering. First, litigation doesn’t necessarily mean that there was an earlier lawyering failure. Second, even if there was a lawyering failure, by looking at case after case my law students may only be getting a view of how not to be a lawyer instead of a positive view of how to be a good lawyer. It is fairly easy to fall into the trap of chiding the lawyers in a case (“Silly folk from the 1920s – how could you not have anticipated Cardozo’s brilliance shining a light on your misdeeds?”)
It is also all-too--easy to fall into the trap of recommending more lawyering to solve every problem. With cases, students don’t necessarily see all the examples of lawyers successfully steering their clients from disaster. Nor do they see all the examples of over-lawyering needlessly killing deals. Perhaps case books encourage us to spot Type II errors in lawyering (not enough lawyering), but don’t help as much with Type I errors (too much). (I realize the Type I/Type II metaphor is not a precise fit here). Or maybe it is just a trap I alone easily fall into.
What to do? One tact is to promote more empirical research on effective lawyering. I’ll save that for a future post – there are dozens of methodological challenges. Another approach is to admit that lawyering is an art or a craft and about the exercise of judgment. But are law professors always the best exemplars of professional judgment? I’m certainly not. Which is why it makes sense to invite practitioners and judges and even seasoned clients(!) into the law school classroom to give a perspective that cases alone cannot.
None of the foregoing represents a novel insight, but I find I need to remind myself of the traps I fall into any way.
Here is another in my series of end-of-semester teaching posts: I’ve been thinking a lot about teaching transactional law since Karl Okamoto hosted a truly wonderful “Transactional Lawyering Meet” (a kind of moot court for business lawyers) at Drexel in March. (Am I allowed to give a shout-out to the victorious Georgia team?)
Before the meet, several business law professors (including 4 bloggers from this site and one blogger-in-law) met to discuss the state of teaching transactional law. It is a topic that has been covered in a number of conferences – including last year’s AALS Mid-year meeting as well as Tina Stark’s biannual conferences at Emory (with the next one coming up in a month). The Drexel crowd was an assembly of the converted. Everyone was a believer that business law teaching could benefit from a transactional focus. Some of the obvious “delivery systems” are drafting and negotiation simulations and even Karl’s innovative moot court for transaction lawyers.
But the converted did hotly discuss two recurrent problems, which I'll label the problem of scalability and that of professor incentives. The first problem deals with how to make a labor intensive style of teaching work in large law school classrooms. Moot courts, small drafting seminars, and business clinics are fantastic – in part because of the intimate setting. The best-trained young lawyers I encountered were in England – because lawyers there go through an apprentice system; a recent graduate basically sets up a desk inside a senior solicitor or barrister’s office and shadows her around for a year. That strikes me as an ideal way to learn. But it might not mesh well with the modern economics of many U.S. law schools – a topic discussed a few weeks ago in a Masters’ Forum on this site. If transactional law – or any of the Carnegie or ABA Best Practices reforms – are going to take deep root, they need to work also in the setting of classes of larger than 12 students.
The problem of scale dovetails with a second problem outlined by a more junior professor at the Drexel conference: many law schools would not reward the often Herculean efforts needed from a professor to make teaching with a transactional focus work. Trust me, as tough as grading 50+ end-of-the semester exams can be, it is a lot easier than providing detailed feedback on 12 student-drafted LLC operating agreements.
So what to do? Here are a few ideas:
1. Create a business-school-style case study clearing house: Business school professors get professional credit and filthy lucre (how is that for incentive) for authoring case studies. Why not adapt this to law schools? The Harvard Program on Negotiation has a good clearinghouse of negotiation simulations (although it would be even better if some of these simulations had more tie-in to detailed substance of business law courses). CALI has already made steps in this direction (although I haven’t test driven any of their lessons). Tina Stark is also soliciting materials for an Emory-based clearinghouse. (I don’t know how that is progressing). To make any clearinghouse work, professional incentives need to be considered. For example, professors might use download counts (just like ssrn or bePress) as a indication of their influence. Or we can consider a profit motive. (Heavens-to-Betsy!)
2. Learning from trial practice: This was Karl's theme for his mini-conference. I’ve heard Therese Maynard (Loyola-LA) give several presentations (including one here at New Mexico) on how she has borrowed from trial practice teaching techniques in developing a new business planning course in which students have a number of different complex drafting assignments. The assignments track the life cycle of a venture capital deal, but seem relevant for any business law student. Like trial practice, her program is scalable (I think her course takes over 60 students a semester) and makes use of adjunct teachers -- with Therese as the coordinator. And the assignments and grading rubrics are off-the-shelf so that the course (a) can be graded, and (b) with a non-Herculean investment in adjunct or professor time.
Other ideas would be welcome – please comment below. It’s time we move from whether teaching transactional law is a good idea to how to make it work. And to make it work and to sell the idea to the not-yet-converted, we need to think about how to make it easier. Which would mean saving professors from breaking their back re-inventing the wheel at every law school with every new course.
With a Supreme Court vacancy, people are coming out of the woodwork with what the Court would be missing when Justice Stevens retires, including a Protestant, someone (other than Kennedy) not from an appeals court on Amtraks' Northeast Corridor, or someone who did not graduate from Yale or Harvard Law. Add to the mix concerns about diversity along the lines of gender, race/ethnicity, and sexual orientation. To say nothing of having a justice with experience as an elected official or as a trial judge.
What about business law background? Gordon had an interesting post last year on whether it was time to have a Supreme Court justice with a transactional background. To my knowledge, the Court has not had a justice with significant transactional experience since Lewis Powell retired. Experience in transactional law would not only round out the substantive knowledge of a court chocked full of litigators and public law experts, it might also bring some perspective of how attorneys and citizens plan, bargain, and just plain old cope in the shadow of Supreme Court rulings. There might be some collateral benefits of temperament too. Part of Justice Powell's ability to find consensus might be attributed to his work as a corporate lawyer (although other elements of his background surely contributed too).
Having a business law background doesn't necessarily make one "conservative," even on business law issues. Example: William O. Douglas. Here is another case in point: there have been some internet rumours that Elizabeth Warren might be being considered.
Here is another idea: Warren's colleague at Harvard Law, Professor Howell E. Jackson. He is an expert on financial regulation and would be the first justice with an MBA (although that might not be an asset in today's climate). His resume would fit right in with some of the other rumoured short listers: former (acting) Dean of Harvard, former Supreme Court clerk, intellectual heft. And there is precedent! He would be the second Justice Howell E. Jackson! (Full disclosure (in the spirit of the folks at Slate): Jackson gave me my lowest grade in law school. It was deserved.)
Glom guest blogger Tina Stark of Emory has opened registration for the second biennial conference on the teaching of transactional law and skills, Transactional Education: What’s Next? More information here.
New Mexico is looking to hire a visitor to teach in our transactional clinic in the Fall. The ad is below. My colleague, Nathalie Martin (email@example.com) would be happy to answer questions.
The University of New Mexico School of Law ("UNM") seeks a Visiting Professor of Law to teach in its nationally-recognized clinical law program during the fall of 2010. The candidate hired will teach and supervise students in UNM's Business and Tax Clinic, who represent clients involved with small businesses and non-profit corporations with a variety of legal issues, as well as other clients with consumer, debtor-creditor, tax, and home mortgage issues. JD and admission to a US bar are required. Preference will be given to candidates with experience practicing law in the areas in which we assist clients, as well as experience teaching and supervising students in a transactional clinical setting. For best consideration, submit applications by February 24, 2010. The position will remain open until filled. However, UNM intends to fill this position by March 31, 2010. To apply, visit the UNMJobs website: https://unmjobs.unm.edu/. Please reference Posting Number 0805063. The University of New Mexico is an equal opportunity/affirmative action employer and educator. You also can call Nathalie Martin at (505) 463-9051.