Monday, October 26, 2009
Two of my favorite in-class exercises, one on unconscionability and one on remedies, highlight one of the fundamental difficulties of thinking like a lawyer. Law is incredibly frustrating for first-year students, because it calls simultaneously or alternately for rigorous logical precision and wildly creative indeterminacy.
After reading Williams vs. Walker-Thomas Furniture and eliciting Judge Skelly Wright’s famous two-part formulation, I ask students to spend fifteen minutes in small groups coming up with a list of facts that either party might wish to prove at the trial on remand. To organize their thinking, I draw four columns on the whiteboard, two for the merchant and two for the consumer, one each to prove or disprove 1) the absence of meaningful choice and 2) terms unreasonably favorable to the drafter, i.e. procedural and substantive unconscionability. We then populate the columns with ideas from each of the groups, until the class time runs out.
Before the groups began their work, one student raised her hand and asked me what was meant by “absence of meaningful choice.” One sensed that she was craving the precision we found in remedies calculations. The requested definition is, of course, the elusive object of the exercise.
This is useful practice, inter alia, in understanding factors and elements. The two major categories, procedural and substantive unconscionability, are required elements, for mostbut not all courts. The wide variety of facts one could use to prove either element are factors, necessary but perhaps not sufficient in any case to persuade the judge. Some students argue that any adhesion contract suffers from absence of meaningful choice, while others will assert equally persuasively that a consumer always has a choice, if only not to contract at all, unless perhaps the contract is for absolutely necessary goods. The discussion of meaningful choice also provides a rare occasion in Contracts class (compared to say, Criminal or Constitutional Law) to discuss race, gender and class. This exercise is always mentioned favorably in course evaluations.
On the other end of the determinacy spectrum is a remedies problem supplied by the Macaulay casebook that involves a breach of a contract to sell a violin (see mug-shot at right) and the seller’s damages after resale. The problem includes incidental damages, consequential damages, expenses saved, and a variety of other confusing numbers. In the end, a careful application of the rules of U.C.C. §2-706 should result in a single, correct answer, in the form of a numeric damage award. I ask students to perform this exercise individually, usually at the end of one class to prepare for the next. I then call on students and ask for their bottom line answer, and continue asking for numbers until I have exhausted the alternatives they have arrived at. This year there were more than twenty answers in a class of about fifty. The result of the exercise is dismaying to teacher as well as student, but forces us both to understand that law is not just a matter of endlessly inventing arguments, but also requires careful logic and critical thinking.
Both exercises force me to remember that learning the law is a long journey, on which first year students are just embarking. They also remind me that I did learn a few things at the AALS new law teachers’ conference.
[Posted, on Alan's behalf by Jeremy Telman]