March 28, 2008
Transactional Approaches to Teaching
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.
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One thing I have been somewhat surprised about is that I have not done any work with an actual contract. We read and brief cases and work through problems in the book, but never look at a "real world" contract. A couple weeks ago I took it upon myself to look at a lengthy sales contract that a networking company uses. I felt really intelligent when I spotted an anti-assignment clause, waiver of liability, and integration clause. On the other hand, I felt I should have understood a little bit more since I was in my 11th week of Contracts II. I guess my question is why aren't contracts as a document introduced to first year students (or are they)?
Posted by: Ryan Ballard | Mar 31, 2008 2:53:51 PM
Thanks, Ryan for your post.
In response, here's an idiosyncratic take from someone who never expected to become a contracts law professor:
When I took contracts, we began the course by looking over the terms of a book contract, a subject near and dear to every professor's heart. After that, it was all case law and law reviews. It was my favorite first-year class, and it probably would have been my least favorite if we had spent a lot of time reading actual contracts. Liam Murphy taught me to think of contracts law as being about questions like: What sorts of promises should the law enforce? What interests do we protect when we enforce promises? What remedies are appropriate given the interests we are trying to protect? Without those grand, framing perspectives, dickering over contract terms would have seemed mere words, words, words.
When I got into practice, there was never a time when I felt that my contracts course had let me down by failing to expose me to enough actual contracts. But of course, I was a litigator. Still, when I ventured into transactional work (admittedly as a summer associate) and I had a question about some obscure language in a contract, I remember the response as follows: "That language was drafted by some genius at Cravath in the 1980s. Nobody knows what it means, but it has to be there."
But I worked at a big firm in Manhattan, and most of my students will be in smaller firms which will not have a treasure trove of litigation-proof deal contracts on which they can confidently rely. Having read the thoughts of Professor Saiman and others, I now plan to introduce more practical exercises into my first-year contracts course, although I still think the bulk of that sort of training will probably take place in skills courses in drafting and negotiation that students can take as 2Ls.
Posted by: Jeremy Telman | Apr 1, 2008 5:53:34 AM
This year I taught Contracts on an unfamiliar schedule -- two 2-hour classes a week. A bit brutal for an all-lecture class, I committed one hour a week to a team exercise. For three of the exercises I taught some fundamentals of drafting then gave a problem on a substantive area of law that was to be answered in the form of drafted contract provisions.
One cannot teach a lot of sophisticated craft for drafting in this way but there were several things that seemed to be accomplished:
1) Skill-wise, they seemed to grasp the differences between and the functions of the recitals section and terms with covenants and duties, learning to craft the recitals to put their terms in context. This was helpful in their distinguishing all the chatter about a contract provision from the legally effective language in our cases.
2) I found in case discussions that the students had begun to approach their contracts cases as examples of better or worse drafting, paying attention to and critiquing the terms that created the problem.
3) Approaching contracts as drafters, some topics seemed clearer and less abstract. For instance, the students quickly grasped the function and the limitations of merger clauses and disclaimers.
I was impressed by this change of emphasis that I think was good and actually requested the same schedule next year to further develop this approach of integrating a drafter perspective early in understanding contracts. I intend to try increase their sense of linkage between contract interpretation and statutory interpretation to make them better statute parsers.
I saw some of the downside in a comment a struggling student made to me recently. She was working on her outline and said that so far she was feeling contracts as a lot of mechanisms that she couldn't quite see how to fit together overall -- like a carpenter with a disorganized toolbox. Hopefully good outlining will clarify that.
I also enlisted one of the third year student tutors as a TA for the exercise hour and he developed a good relationship with the class and was three times busier tutoring than any of the other student tutors. I attribute this in part to one advantage I've found in giving in-class exercises. As I and the TA wander from group during the exercise we are seen more as welcome consultants and resources, leading students to ask specific questions and listen for answers. I think this is an important facet to add to one's teaching persona to counteract the distancing nature of the lecturing Socrates.
Visiting Professor of Law
Penn State Dickinson
Posted by: Sharon Keller | Apr 26, 2008 12:06:01 PM