Monday, December 10, 2012
This week's Sunday New York Times had a strking piece about the prevalance of indemification clauses in standard form contracts. The article, Daniel Akst's "Those Crazy Indemnity Forms We All Sign," cites to ContractsProf Margaret Jane Radin (pictured), whose book, Boilerplate, we hope to feature in a roundtable discussion sometime early next year.
Akst provides numerous shocking examples of form contracts through which businesses require "consumers to protect a business or some other party from damage claims and legal fees, sometimes even those arising from their own negligence." He has come across such indemnification clauses in forms relating to use of sports facilities, publication agreements, use of a couple for Iam's cat food, EULA's for Skype, eBay, and Facebook, summer camp at Bard College, participating in Girl Scouts actitivies and even staying at another person's home.
I have to admit that I've never paid any attention to such indemnification provisions. I always assumed that they only applied to indemnification of third parties against harm that I have somehow caused, and since I never imagined that I would do significant harm by, for example, using sports faciltiies, redeeming coupons for cat food, permitting my child to participate in athletic activities or joing Facebook, etc., I never regarded the indemnification provisions as an obstacle.
But Akst suggests that at least in some cases businesses are asking consumers to hold them harmless for their own negligent conduct. The Indiana Supreme Court struck down such an indemnification clause as unconscionable after it was successfully deployed in the trial court. As Professor Radin pionts out, that means that, even if these clauses ultimately don't hold up, they are a powerful deterrent to the proper functioning of the tort law system. Consumers might be intimidated by the threatened invocation of an indemnification provision and not seek redress.
The 2007 Carnegie Report on Legal Education recommends that law schools do more to integrate the components of legal education.
Recommendation #1 ("Offer an Integrated Curriculum") from the executive summary of the Carnegie Report reads as follows:
To build on their strengths and address their shortcomings, law schools should offer an integrated, three-part curriculum: (1) the teaching of legal doctrine and analysis, which provides the basis for professional growth; (2) introduction to the several facets of practice included under the rubric of lawyering, leading to acting with responsibility for clients; and (3) exploration and assumption of the identity, values and dispositions consonant with the fundamental purposes of the legal profession. Integrating the three parts of legal education would better prepare students for the varied demands of professional legal work. In order to produce such integrative results in students’ learning, however, the faculty who teach in the several areas of the legal curriculum must first communicate with and learn from each other.
Recommendation #2 ("Join 'Lawyering,' Professionalism and Legal Analysis from the Start") is similar:
The existing common core of legal education needs to be expanded to provide students substantial experience with practice as well as opportunities to wrestle with the issues of professionalism. Further, and building on the work already underway in several law schools, the teaching of legal analysis, while remaining central, should not stand alone as it does in so many schools. The teaching of legal doctrine needs to be fully integrated into the curriculum. It should extend beyond case-dialogue courses to become part of learning to “think like a lawyer” in practice settings.
All of this suggests that curricular reform needs to start in the first year and that we need to re-design our first- year courses in coordination with our colleagues who teach legal skills courses such as legal writing, legal research and drafting courses.
So, how does one design a contracts course that can address these recommendations? Certainly casebook authors can defend their offerings as including practical exercises that supplement the study of case law with modes of learning that come closer to mimicking law practice than does the traditional case method. But it is difficult to work through those exercises effectively in the large-class settings that typifies the first-year experience. If you have 70-100 contracts students, you cannot readily sit down with them individually or in small groups to discuss their approach to problem sets or their attempts to negotiate a deal.
One way to bring more skills training into the first year is to integrate doctrinal courses and skills training courses. Drafting, negotiating, mediating, client interviewing exercises that are part of a lawyering program can be coordinated so as to relate to the subject matters of the first-year courses that are being taught at the same time. But that means that the lawyering projects have to have issues that are relevant to what is being taught at the same time in (say) contract and civil procedure or to criminal law and property.
If one is going to go this route, it seems to me, each law school is going to have to generate its own teaching materials. In the alternative, teams of legal scholars can create integrated curricular materials that they can then sell to law schools for adoption. Or perhaps a little of both. Perhaps a law school can develop a first-year curriculum for its students, and if it seems effective, it can then sell a license to other law schools to use the materials for their students.
In any case, it seems to me that existing casebooks are inadequate to meet the need for a fundamental rethinking of our approach to legal education. Mind you, I write all this as someone who is not fully on board with the Carnegie Report's recommendations; that is, as someone who, as I wrote in the first post on this subject, is actually quite satisfied that versions of the case method can be effective in the first year. But if legal educators are going to heed the call for fundamental reforms, we have to acknowledge that our current teaching materials are not up to the task.
Friday, December 7, 2012
My law school, like many others, is in the throes of curricular reform. I would like to share with our readership some ruminations on the experience in a series of posts. Very little of what follows is specific to my law school's process. That process is on-going and I cannot write with any specificity about what changes we are planning to adopt, as we have yet to come to firm conclusions.
Less than ten years into teaching, I am already something of a dinosaur. I have previously published a limited defense of the case method and the Socratic method (a lengthier version is still available on SSRN). I still believe that a flexible, soft Socratic approach to teaching can be very effective for contemporary law students, especially if supplemented by mini lectures and problems. However, after eighteen months of work with our curriculum committee, I am persuaded that many within the legal academy are prepared to jettison the Langdellian heritage in favor of more hands-on teaching methods.
Like most academics, and probably like most people, I am confident that my own method for doing what I do is a good one. Unfortunately, there is no reliable empirical evidence to demonstrate the effectiveness of my teaching method over others. We have not undertaken a systematic study to determine whose contracts students go on to pass the bar at the highest rates or whose contracts students are most likely to be successful transactional lawyers or commercial litigators. My students respond well to my approach to law teaching (to judge by my student evaluations, which is the best evidence I've got, faulty though it is), and they seem to master the concepts that we cover in my contracts course as well as they ever have (to judge by steady medians on the multiple-choice portions of my exam). But I am willing to entertain the hypothesis that they could do better through other methods, and I believe I have a professional obligation to experiment responsibly to try to discover what works best for today's law students.
My colleagues have shared with me a substantial body of empirical work that suggests that our current students do not study or learn through the same methods that I used when I was a law student. The current generation also arrives at law school less well-prepared in precisely the cognitive areas in which legal studies make the most rigorous demands. I am not entirely persuaded that the science on which these conclusions are based is entirely reliable, but I am willing to set aside my skepticism for the sake of the thought experiment of trying to devise a curriculum that would meet our students where they are.
In future posts, I hope to consider the following subjects:
- The impact of curricular reform on teaching materials: is this the death of casebooks?
- The costs of moving to a more skills-based curriculum
- The balance of teaching and scholarship in the 21st-century law school
- Coordinating teaching strategies with colleagues while preseving academic freedom
- Balancing meeting students where they are, in terms of maturity and development of cognitive abilities, with pushing students so that they can adapt to challenging professional environments
Thursday, December 6, 2012
(From the friendly folks at the AALS Contracts Law Section)
The program for the Section on Contracts at the 2013 AALS Annual Meeting will be on Saturday, January 5, 2013 at 8:30-10:15 AM. We had an enthusiastic response to our Call for Papers and have put together an exciting panel. The selected speakers and their topics are as follows:
"Good Faith Notice and the Bilateral Employment Contract," Rachel Arnow-Richman, University of Denver Sturm College of Law
"Instructing Juries on Noneconomic Contract Damages," David A. Hoffman, Temple University, James F. Beasley School of Law
"The Dog that Didn’t Bark: Private Investment Funds and Relational Contracts in the Wake of the Great Recession,” Robert C.Illig, University of Oregon School of Law
"Formality in Patent Licensing," Karen E. Sandrik, Willamette University College of Law
We look forward to seeing you in New Orleans.
Chair, AALS Section on Contracts
Wednesday, December 5, 2012
In a recent episode of 30 Rock ("Mazel Tov, Dummies!"), Liz Lemon (Tina Fey) gets married. Liz attempts to subvert the wedding industrial complex by tying the knot in her gym clothes at City Hall. She fights any desire to make it a "special day," leading her boyfriend/fiance to tell her "it is ok to be a human woman."
Interesting for our purposes: there is a sub-plot in the episode that is reminiscent of Leonard v. Pepsico. It begins at a little past 4 minutes into the episode. A creepy character played by John Hodgman comes to collect a woman (the character Jenna Maroney) that he says he earned by collecting $1,000,0000 Surge points. Surge is a soda and his claim to the money is based on a tv advertisement. The Surge points catalogue entitles Hodgman to the item or its equivalent value. Since it is "illegal to own someone," Jack Donaghy (Alec Baldwin) has to determine Jenna's value (and Jenna is not happy with the assessment of her worth).
Take a study/grading break:
[Meredith R. Miller - h/t 1L Matthew Gray]
Tuesday, December 4, 2012
Chapman University Law Prof Donald Kochan (pictured) noted our link to Professor Whaley's exam advice and offers some of his own. He has recently published “Thinking” in a Deweyan Perspective: The Law School Exam as a Case Study for Thinking in Lawyering. Here is the abstract:
As creatures of thought, we are thinking all the time, but that does not necessarily mean that we are thinking well. Answering the law school exam, like solving any problem, requires that the student exercise thinking in an effective and productive manner. This Article provides some guidance in that pursuit. Using John Dewey’s suspended conclusion concept for effective thinking as an organizing theme, this Article presents one basic set of lessons for thinking through issues that arise regarding the approach to a law school exam. This means that the lessons contained here help exercise thought while taking the exam—to think through the exam approach. The second, more subtle, purpose is to demonstrate that the law school exam can serve as a case study in the effectiveness of certain thinking tools that have much broader application. For that reason, this Article is not your typical “how-to” guide, but instead provides guidance critically and generally applicable to the thinking enterprise itself.
In addition, Professor Kochan offers the following excerpt on "outline dumping":
Learning, information, and memory will never be enough to accomplish good judgment. Instead, judgment is only evident when those things are applied to the perplexity to be solved. Outline dumping skips this crucial step.
To borrow and extend Dewey’s metaphor: the refrigerator (one’s outline or memory) may be filled with all of the stock necessary (knowledge, rules, and experience) to make a good meal (write a good exam), but the meal cannot be the stock alone simply removed and placed on the table—instead the meal must be prepared, the right ingredients mixed in the right combinations, and the fresh new material (the facts and other data from the exam question) must be added in order to create the meal; and it still must be presented and served with the care and skill of the great chef (the essay form and analysis), and finally the product must be sold to a patron-consumer of discriminating taste (the professor-evaluator). This method is far more likely to garner a good review than would taking out the ingredients, plopping them on a table, and calling it dinner.
Instead of outline dumping or simply restating facts or giving sterile statements of legal rules unconnected to the case at hand, the effective exam taker must master the skill of assessment of the relevant law and facts and application of law to facts. Dewey prescribes that “[a]pplication is as much an intrinsic part of genuine reflective inquiry as is alert observation or reasoning itself.”
Monday, December 3, 2012
As reported here in the New York Post, hip hop artist and producer, Ryan Leslie, offered via YouTube video a $1 million reward for the return of a lost laptop and external hard drive.
Mr. Leslie laptop and an external hard drive were allegedly stolen while he was touring in Cologne. Plaintiff Armin Augstein claimed to have foudn the missing items while walking his dog. He returnd the property to the German police and claimed his reward when notified of its existence.
According to the Post, Mr. Leslie gave two explanations for his refusal to pay the reward. First, Mr. Leslie suggested that Mr. Augstein may have been in on the heist, since he found the laptop fifteen miles from where the theft allegedly took place. Second, Mr. Leslie claimed that his duty to pay was contingent on his ability to retrieve certain musical tracks from the external hard drive, something Mr. Leslie claimed he was unable to do. Because Mr. Leslie had returned the hard drive to the manufacturer, the judge informed the jury that they should assume that Mr. Leslie could have retrieved the tracks before doing so.
During jury deliberations, Mr. Leslie's attorneys attempted to settled, but plaintiff refused. After three hours of deliberation, the jury returned with a decision awarding plaintiff the full $1 million. His lawyer commented that Mr. Augstein was due not just a "thank you" but an apology. The law requires only a check.