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Thursday, November 18, 2004

Teaching contracts visually

Irma_russell_1 In her regular Teaching Contracts column in the forthcoming AALS Contracts Newsletter, Irma Russell (Memphis) writes about Frank Doti's (Chapman) new book:

I was very impressed with the book . . . [which] uses graphs and flow charts to explain contracts concepts.  For many years in contracts and other classes, I have used Venn Diagrams on the board and "sets" as we learned them in math class long ago.  I have found these to be very helpful for many students.  Some of my students have produced their own charts as well, engaging in the experience of internalizing the process of organizing the concepts.  I asked Frank to write a brief description of his work for this column.

Learning Contracts Visually

by Frank Doti
Chapman University School of Law

Doti_1 As contract law professors, we know that there is no one method of teaching a particular area which is appropriate for all materials. In other words, there is no magic bullet on how to teach contracts. Having also taught a variety of taxation law courses for years, I suspect this is probably true for all law subjects.

I always start off my Contracts I course with Lucy v. Zehmer , in spite of the fact that it is not the first case in our casebook. I do this for two reasons: (1) It is a fun case to launch the course, and (2) It is a quintessential case to apply the Socratic method of teaching. The facts of this case and the objective theory of assent principal applied are ideal for students to begin to learn the law and, more importantly, how to analyze a legal problem.

When I get to the statute of frauds for the sale of goods, as in UCC 2-201(2) dealing with the written confirmation between merchants exception, I use a problem approach to help students learn this provision. I will go over a few hypotheticals with the class to show when the exception applies or does not apply. Even if there is a case dealing with UCC 2-201(2), I do not believe analyzing one would be as effective in learning the provision as hypos. I demonstrate to my students that the exception may or may not apply based on a simple change in one of the facts, such as either of the parties not being a merchant or an oral objection made by the party receiving the confirmation.

My point is obvious—we can use the case and problem approaches interchangeably to teach the same course. It all depends upon the particular rule of law to be learned. In my opinion, the case method seems to work better when we deal with rules of law that are not so clear cut. On the other hand, the problem approach is better when we are dealing with more black letter rules.

Then I have found that there are areas of the law in which both approaches are not entirely adequate to aid the students' learning. One of these is our old friend UCC § 2-207—"The Battle of the Forms." There are about a half dozen cases in our casebook on § 2-207, and I have prepared a handout with six hypotheticals for students to go over prior to class. These approaches help considerably, especially for the stronger students. Nevertheless, I have found that a number of students still have trouble with this exasperating statutory provision even after both approaches are used.

I cover the current version of § 2-207, although revised Article 2 was approved by the ALI and NCCUSL in 2003. I do this for three reasons: (1) No state has yet adopted revised Article 2, (2) The proposed § 2-207 raises more questions in my mind than it was supposed to answer, and (3) I believe that having students learn the current version is a good exercise in learning how to deal with ambiguous statutory construction.

So several years ago I tried a new approach to teaching § 2-207. I developed a flowchart in which students go down a path of alternate questions. It took me several attempts at a flowchart that would cover all the possible intricacies of § 2-207. After passing out the first few versions to students, a sharp student would come and tell me that I forgot to consider an obscure exception to the general rule. So I had to go back to the drawing board, literally.

After a while I was pleasantly surprised to find that more and more students became comfortable with 2-207. In fact, students have told me that they find the § 2-207 flowchart like a game. I suppose the computer game generation might have something to do with that.

I do not substitute the flowchart approach for the case and problem methods, even for § 2-207. I apply all three methodologies for § 2-207 and other areas of contract law which I have found conducive to using flowcharts. In my view, I believe the stronger students use the flowcharts to put it all together. In other words, after having studied the cases and hypotheticals, these students reinforce their understanding of § 2-207 and other tricky subjects with the flowcharts. Other students who have more trouble learning § 2-207 and all of its exceptions, including the varying jurisdictional treatment of the words "different and additional," seem to catch on with a flowchart approach.

I soon found that I was developing more and more flowcharts for other confusing areas including:

The mailbox rule

UCC §§ 2-206 and 2-508 (non-conforming goods and cure)

UCC § 2-209 (oral modification)

UCC § 3-311 (accord and satisfaction)

The parol evidence rule (both common law and UCC § 2-202)

UCC buyers’ and sellers’ remedies

After using the flowcharts as handouts for a number of years, students encouraged me to publish them along with some outlines I had distributed on confusing areas such as promissory estoppel, the statute of frauds, and mistake. As a result, this past summer the first edition of my book, Contract Law Outlines and Flowcharts was published by the Commercial Law Publishing Company.

Since UCC § 2-207 was the inspiration for my flowcharts, I have included it here as an example of how they work. I use a basic hypothetical in which both parties are merchants, there is a conflicting term in one of the documents, and the buyer accepts delivery of the goods. Later there is a dispute based on the conflicting term. Students use the flowchart to determine which of the conflicting terms becomes a part of the contract under UCC § 2-207.

A number of contract law professors who are on the AALS Contract Law Section list serve have already received a complimentary copy of the book. Any professor who does not have a copy and would like one can contact me at fdoti@chapman.edu.

My flowcharts are a work in progress and I plan to refine them and add additional ones. Please let me have your comments on how I can improve them.

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