June 09, 2011
Fresh Stories for Contracts
Posted by Lawrence Cunningham

Experienced teachers know that drawing on current events stimulates student interest, yet our contracts course does not make this easy. To make it easier, my latest book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, tells 45 stories intended to bring this subject alive for a modern audience.     

I love old contracts cases as much as the next professor, and judging by their regular appearance in all standard casebooks, we profs love them quite a bit. But students hate them and have a hard time appreciating how cases like the following are relevant to their lives:  

* the sale of a silk mercer’s business circa 1773 England

* payments for itinerant farming circa 1834 New England

* a delayed rail transport for a mill’s crank shaft circa 1854 England

* musty gambling loans circa 1859 Buffalo

* the destruction by fire of a London theater circa 1863

* sailing ships lacking radio call letters plying for Liverpool circa 1864

* mistakes about bovine reproductive attributes circa 1887

* ₤100 rewards to those catching the flu despite using screwball medicine circa 1893 England

* damages for delay delivering marble for a mausoleum circa 1885

* salmon fishermen using nets off Alaska circa 1902

* an exclusive marketing license for fashions circa 1917

* experimental skin grafting surgery on a young boy’s hand circa 1929

* a bridge to nowhere circa 1929

This list could be doubled or tripled in length, but you get the idea.  Students are not often stimulated by such musty, dusty tales, most of which were chosen for our classroom lessons by people like C.C. Langdell, Sam Williston, or Arthur Corbin—all born in the 19th century and dead for generations! 

Freshen it up, I say, and I’ve developed a systematic effort to do so—not eliminating these relics, which do remain valuable, but showing starkly, fully, and entertainingly, how they relate precisely to today’s world. This brings modernity into the contracts texts and classroom.  How about these:

 * poet Maya Angelou’s Hallmark greeting card contract (formation in exclusive license deal)

* a lawyer’s boasts on “Dateline NBC” (offers)

* whether corporate internet privacy policies are contracts (mutual assent)

* effects of construction surprises in demolition of building damaged on 9/11 (duress/pre-existing duty rule)

* Kevin Costner’s pending fight about sculptures for his Dunbar ranch (conditions)

*Donald Trump’s effort to delay loan repayments due to financial crisis (impossibility)

* Bernie Madoff’s Ponzi scheme’s effect on divorce settlements (mutual mistake)

 * Sandra Bullock’s recent fight over construction of her Texas mansion (restitution)

* fan breaches of Washington Redskins season ticket contracts (damages)

* Paris Hilton’s recent dispute about hair product endorsement deal (consequential damages)

* whether cell phone service early termination fees are valid (liquidated damages)

* Wal-Mart’s recent defense against employees of foreign suppliers (third-party beneficiaries)

These stories, mostly culled from the recent news, all pivot on the dusty/musty cases, but are much more interesting, accessible and relevant to students.  Also appearing in the collection of 45 stories are those involving the following additional characters or topics:

* novelist Clive Cussler (good faith)

* rapper 50 Cent (palimony contract)

* child actor from “Malcolm in the Middle” (infancy doctrine)

* AIG’s employee bonuses (excuses)

* Citigroup’s naming of the N.Y. Mets baseball field (termination)

* the rapper Eminem (interpretation concerning digital music)

* Golden Globes (parol evidence rule concerning telecast rights)

* ownership of the L.A. Dodgers (scrivener’s error)

* pop superrstar Lady Gaga (accord and satisfaction)

* Charlie Sheen / Warner Brothers (conditions, performance, waiver)

* “The Sopranos” (novel ideas and restitution)

* Rod Stewart (restitution after cessation)

* Conan O’Brien / “The Tonight Show” (various)

Four stories in the book will be more familiar to veteran contracts teachers, as they already appear in several leadings books:

* MLK and BU (bargain or gift, reliance)

* Pepsi and the Harriet jet (offers, jests)

* Michael Jordan paternity case (formation, consideration, fraud)

* Michael Jordan product endorsement case (lost volume seller)

* Baby M

My narrative reflects and develops an understanding of how today’s contract law bears on today’s problems—showing how yesterday’s contract law and yesterday’s problems recur in new guises. These stories identify the real world, contemporary social and business settings where ancient problems recur. 

These stories are about context, argument, possibilities, limits, alternatives, and deal with things people generally know about today—personalities, electronic transactions, internet exchange, cell phones—and dwell less on the archaic materials necessary to break through the ancient cases (transport and milling at the dawn of the industrial revolution, 19th century navigation technology). 

Many of my stories did not result in litigation or judicial opinions. This enables teachers to stress how most contracts are not litigated. It facilitates engaging skills of negotiation and problem-solving and the “transactional” perspective.  It’s easy to find the actual contract underlying many of these deals too, for those wishing to walk through such things.   My stories are stories, just like judicial opinions are, enabling those with a literary bent to challenge my telling or at least stress the influence of the viewpoints I adopt.

Students like and get all this. Pedagogy is much more effective.  And it is much more fun.  Of course, all of us have known that current events help learning and are more enjoyable. But it takes a lot of time to incorporate them into a teaching program in a systemic way. 

My book is an effort to do that.  Notably, I began writing most of the stories as blog posts that I’d use in daily teaching.  Now harnessed to the doctrinal terrain and linked to seminal cases, the book brings this course to life like no other device I’ve seen in 20 years of teaching this stuff.  To be published by Cambridge University Press in early 2012, I’m excited about this and I hope my fellow teachers of contracts will be too!

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