June 09, 2011
Contracts Roundtable: Contracts and Imagination
Posted by Erik Gerding

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?

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