June 09, 2011
Contracts Roundtable: “Sustained Opportunities to Practice the Actual Application of Legal Reasoning”
Posted by Erik Gerding

I won’t pretend to have the teaching credentials of our panelist, so I will stick to a role as moderator. In response to Gillian’s provocative posts, I have seen that same worrying phenomenon in upper level courses: students struggling when asked to apply legal analysis in a sustained manner to provide advice for a client in complex scenarios. I’ve seen it in problem solving exercises in Business Associations, in semester long simulations such as Business Planning (if any of my current students in that course happen to read this: please don’t fret – this is not a reflection on your performance or your soon-to-be-released grades), and even in the one semester in which I taught in New Mexico’s Business and Tax Clinic.

Let me suggest that there may be at least two variations on this problem. In the first variation, students who are very good at extracting legal rules from cases struggle when asked to apply legal rules to give advice to clients to plan their affairs prospectively. These students do well spotting issues in the context of an existing litigation or threats of future litigation. But when asked what a client should do to mitigate risk or advise a client on a transaction, they sometimes become uncomfortable moving beyond a recitation of legal rules.

In the second variation, students (often those with work experience before entering law school) are very comfortable switching to planning mode. However, many resist working through the details of legal analysis. Here a common problem is looking at simulations primarily from a business perspective and leaving the nitty gritty legal analysis to others.

In either variation, students struggle with the ambiguities inherent in legal analysis.

I write this to fault neither students nor first-year teachers. Often the problem may lie in the way I ask the questions and structure the simulations. But generally, I’ve treated Gillian’s challenge – to get students engaged in sustained application of legal reasoning to complex and ambiguous fact patterns – as something I can address in advanced classes. But her provocative post makes me uncomfortable with that judgment and wonder what I could be doing in the first year Contracts course. Are we wasting a valuable opportunity in the first year? Is the first year conditioning students to treat law as too mechanistic? Do we suffer too much from what a colleague of mine has called the syndrome of treating each class as “three cases and a cloud of dust”?

I’ll let others weigh in, but let me highlight a few overarching challenges and constraints that we all must face in teaching Contracts.

First, time is extremely scarce. As Usha noted in her post, one has to make tough choices of how to use the 40 or so class meetings in a semester most effectively. My initial list of questions should not be taken as an indication that we should do more of everything (and turn the amps up to 11).

Second, although I think that the concern with doctrinal “coverage” can be overblown, it can be difficult in upper level classes if students have not been exposed to things like liquidated damages or specific performance.

Third, as my introductory post hinted, part of my concern is that the first year courses may largely duplicate each other in terms of basics of legal analysis, as well as teaching methods and objectives. More coordination might be in order to ensure that students are not taught the same basic “stuff” (let’s say the role of trial courts versus appeals courts and standards of review) in five different classes, while ensuring that students get some reinforcement and that valuable lessons don’t slip through the cracks. (To give an example based on a party conversation from last night: how many 2Ls and 3Ls are clear on the basic differences between a statute and a regulation?) I write about the need for coordination with trepidation, as I personally dread sitting through long meetings about pedagogy.

Fourth, professors’ own time is scarce. It is time-consuming to develop one’s own teaching materials and there are strong disincentives to doing so even if you already have tenure. So following up on one of the questions in the comments to our roundtable, I wanted to ask Gillian and our panelists:

Are there particular simulations or collections of simulations you would recommend? (I’ll do a separate post on this later).

Fifth, assuming you agree with Gillian’s approach, is the solution a wholesale revision of the first year course or more incremental change?

Sixth, after reading Gillian’s posts, I am wondering how the evaluation and grading works. How do you balance giving the kinds of hands-on feedback that is necessary to hone the type of judgment that she describes with the demands of teaching a large class?

I am sure some of our readers are still slogging through spring grading.  On the one hand, we all take a lot of time to grade exams in a fair and thorough manner.  But is anyone else left with the sinking feeling that, for all our work on exams, students may not be getting the message on how to improve and grow as lawyers?  How do you handle evaluation?

Seventh, first-time Contracts teachers face a greater challenge. She or he will be getting lots of advice on things to add to a course, but, again, there is not room for everything (I learned this the hard way). Innovation can be risky and the first time classroom not particularly forgiving. What advice would our panelists give to the rookie teacher? What should be the focus in her or his first Contracts class?

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