June 09, 2011
Contracts Roundtable: Stories, Problems, Deals, Plus Ca Change!
Posted by Lawrence Cunningham

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.   

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