June 09, 2011
Contracts Roundtable: Changing your first year Contracts course is not hard
Posted by Gillian Hadfield

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.


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