Friday, March 28, 2008
I have been very impressed since (re)joining the teaching profession by the amount of time and energy that law professors devote to pedagogical concerns. This devotion to teaching has been on display recently on the contracts profs listserv, based on a discussion initiated by Villanova's Chaim Saiman (left). Professor Saiman asked the group if and how contracts profs incorporate transactionally oriented skills into final examinations. The result was a broad-ranging and passionate discussion that could not possibly be summarized in this space. Or so one would think. Nonetheless, the most recent post on the thread attempts to do so. It comes from the thread's initiator, Professor Saiman, who has given me permission to post an edited version here. Summarizing the discussion and adding his own musings, Saiman writes:
Initially the question was a very limited one about test design. . . . The consensus from the list (which I agree with) appears to be as follows:
1. It would be a very hard idea to have students draft provisions free-formed. They lack practice doing this, and it would advantage students with a business background. Moreover, the exercise is a bit sterile unless there is another party pushing back on the provisions, and I for one can't figure out a way to do this on a standard law school exam.
2. A more promising idea, thought not without its shortfalls, would be to describe some background and negotiations, and then have the "issue spotter" take the form of drafting a memo to the client commenting on contractual language that I would provide on the exam. The goal would be to test if they can see what problems / risk this language might raise down the road and to see if they can identify whether the written contract conforms to what the client thinks he is signing. I can imagine this method effectively testing what Farnsworth calls "the law of the contract," e.g., interpretation, parole evidence, conditions, performance and breach, implied terms, default rules and repudiation.
. . .
Invariably, this question about test design became a question of what do we teach in contract class (and law school) and why. This is a large question worthy of much thought, and here at Villanova we are in the midst of undertaking a curriculum review so these issues are on our minds.
FWIW, my own view of the topic . . .
FWIW, my own view of the topic is that what we do in contracts depends on what we do in the first year as a whole. In my vast experience of 19 months, I have concluded that sometimes we teach doctrines so that the students know the doctrines, and sometimes (especially in the first year) we teach doctrines as a way of teaching skills (e.g., rule against perpetuities). I think this makes sense, but that we should identify which skills to teach and then distribute them across the courses in a more organized fashion.
As I see it, the main skills are:
1. Traditional common law case and conceptual analysis
2. Statutory interpretation
3. Advising, counseling and factual development
4. International and comparative aspects
5. Policy, theory, legal history and evoluation and acculturation into the profession
6. Understanding the procedural structure of federal/state law
I think each school needs to figure out which teachers / classes in the first year are best suited for each goal.
For example, I could imagine (and would love to teach) a Contracts course that stressed skills 1 and 5. Then I would spend a lot of time on consideration, the emergence of reliance from equity and estoppel, the mailbox rule, the bargain theory, unconscionability, implied warranties, realism, formalism, law and economics etc. These doctrines tend to make these points well.
But, if this was stressed in contracts, I would see no reason to repeat the same narrative with the rule against perpetuities, evolution of landlord/tenant law and marital/women's property in Property, or rise and fall of intentional torts, developments of negligence and products liability law in tort.
Alternatively, I could imagine teaching a contracts course that focused on skills 2, 3 & 4, which would place far more emphasis on the UCC & CISG. Most of the course would be structured as problem sets raising issues of planning various sales of goods transactions to domestic and foreign markets. In this course, I would spend much more time examing contracts as a tool of business planning in the B2B context and teaching how to examine statutory and regulatory texts and private international law issues. However, I would relegate consideration/reliance/restitution and even offer and acceptance to 2 or 3 sessions. Similarly, I would at least introduce the complexities that bankruptcy and Article 9 introduce to the damages and remedies issues.
Thanks to Professor Saiman for giving me permission to share his thoughts with readers of our blog. I apologize for any typos I have introduced in the transcription process.