Friday, October 31, 2014
As I noted about a month ago the problem for the 2015 International Commercial Artbitration Moot is wonderful for those who like crossword puzzles, solving problems, reading mysteries, or doing detective work. There are facts, deadends, and read herrings galore. No one goes for a big sleep as far as I can tell but there is the dreaded issue of "fundamental breach." In fact, that appears to be the centerpiece of the problem. Just to make it a little twisty, the fundamental breach is by the buyer whose letter of credit may not conform to the contract. Since even that would be too simple, there is a second letter of credit that may or may not conform but which came after the first arguably non comforming one. There are phone calls, emails, letters, accusations, and even an emergency arbitration that, maybe, should not have occurred at all.
At my school 32 students are now writing briefs for the claimants side of the case and preparing for their oral arguments next week. There is something here even for profs not involved in the Moot. Just reading the problem will spark all kinds of ideas for exam questions suitable for the basic contracts course.
Monday, October 6, 2014
The problem is up for the 22nd Annual International Commerical Arbitration Moot. Between now and early December, teams will write the brief for the Claimant. In mid January the brief for the Respondent is due. And then, in March, 200-300 teams from law schools around the world will gather in Vienna for the competition.
There is no limit to the number of students on a team but they must argue in pairs. Typically one student handles the procedural issues and one the substantive or the CISG issues. There are 4 rounds to start with the 64 highest scoring teams moving on to a single elimination tournament.
The problems identify an actual arbitration agency whose rules govern the procedures, This year the procedural issues center around whether the Claimant the right to make an emergency appeal to the arbitration agency and whether the Respondent may join the parent company of the Claimant for purposes of its counterclaim. In one of those puzzles that charactizes the Moot, the parent company "endored" the contract at issue but claims not to be a party do it.
The substantive issue concerns a letter of credit which does not conform (or does it?) to what was called for in the contract. The buyer attempts to "cure" in a sense but the seller says "too late, we have already avoided the contract." Thus, it raises avoidance and cure isssues under the CISG.
This is, at best, a first cut on the problem. As the weeks pass, the problem will reveal itself as the layers are peeled off.
I am happy to trade notes and views with other interested profs.
[In the meantime, try to find the third man.]
Monday, September 8, 2014
I am sure most readers know what the CISG is. I was surprised to learn that some are not aware of the International Commercial Arbitration Moot (ICAM) held in Vienna annually over the weekend and then into the week just prior to Easter. It is maybe the most rewarding experience I have had as a teacher. The organizers of the Moot release the problem on the first Friday of October. It is usually a spawling but somewhat realistic fact pattern, Typically there are procedural issues and substantive issues dealing, obviously, with international contract law. Over two hundred teams from around the world gather for 4 days of prelims. The top 64 then go into a single elimination tournament.
At my school, like others, we organize a course around the Moot. In the fall, the students first have 5 weeks of regular class sessions on the CISG followed by an exam. After that, the problem comes out and they have 4-6 weeks to write their briefs. Finally, there are oral arguments. From those exercises, 4 to 6 students are selected to be on the team. (all students earn 3 credits whether they make the team or not) Those students must prepare a claimant's and a respondent's brief and practice twice a week until the competition. It requires dedication.
There are a couple of drawbacks. First is it expensive to send students and a coach to Vienna. At Florida we have been fortunate to have support from the International Section of the State Bar, private donors, and the Law School. Second, the judging in Vienna can be hit and miss. In the four day premlinary period the abitrators (3 each per session) may apply different standards and are sometimes not well prepared. Thus, the goals be for the students must be to learn at much as they can, network, and enjoy, for a few days, interacting with students from all over the world. The winning teams are always superb but some left out of the tournament may also be superb.
I realize there are maybe only a handful of people out there who do not know of this opportunity but I've found it to be very worthwhile (and also hardwork)
Thursday, June 19, 2014
This week, I received notice that I am a member of the plaintiff class in Schlesinger, et. al. v. Ticketmaster. After ten years of litigation, the parties' proposed settlement is pending before the Superior Court in Los Angeles. If you purchased tickets through Ticketmaster between 1999 and 2013, you most likely are also a part of the class. The case alleges (in short) that Ticketmaster overcharged customers for fees. Ticketmaster claims that its processing fees were necessary for it to recover its costs, while plaintiffs allege that those fees were actually a means of generating profits for Ticketmaster. Shocking, no?
The terms of the settlement are actually pretty sweet. Class members will get a discount code that they can use on the Ticketmaster website entitling them to $2.25 off future Ticketmaster transactions. Class members get to use the code up to 17 times in the next four years. The value of the discount codes is about $386 million, and if the money is not used up, class members will be eligible for free ticket to Live Nation events. Ticketmaster's website will also now include disclosures about how it profits from its fees.
But then there's THIS:
Ticketmaster will pay $3 million to the University of California, Irvine School of Law to be used for the benefit of consumers like yourself. In addition to the benefits set forth above, Ticketmaster will also make a $3 million cy pres cash payment to the University of California, Irvine School of Law’s Consumer Law Clinic. The money will establish the Consumer Law Clinic as a permanent clinic, and it will be used to: (i) provide direct legal representations for clients with consumer law claims, (ii) advocate for consumers through policy work, and (iii) provide free educational tools (including online tutorials) to help consumers understand their rights, responsibilities, and remedies for online purchases.
The settlement strikes me as masterly. It gets a beneift to people who, if the allegations are true, were actually harmed by the alleged conduct, but it does so in a way that will generate more business for Ticketmaster going forward, and Ticketmaster may value that new business stream at around $386 million in any case. Ticketmaster has had to make changes to its website to eliminate the risk of deception going forward. And the world gets a consumer protection clinic funded the sort of business against whom consumers need to be protected.
Congratulations to the attorneys who came up with this settlement and to the UC Irvine Conumser Protection Clinic on its new endowment.
Wednesday, January 8, 2014
Monday, November 18, 2013
A screwdriver can be used for turning screws and opening cans of paint. Or it can be used as a dagger in mortal prison combat. Likewise, a contract can “facilitate an efficient private ordering of society,” but it can also be “a means of social dominance and oppression.” Law professors should be quicker to tell new students about the shank-side of contracts.
That’s the gist of Teaching Contract Law: Introducing Students to a Critical Perspective Through Indentured Servitude and Sharecropper Contracts, 66 SMU L. Rev. 341 (2013), by Dr. Gregory Scott Crespi.
Crespi provides a sample lecture in which he tells of homeless English people becoming indentured servants and former slaves becoming sharecroppers. In both cases, contracts were used to bind people to functional slavery.
Crespi gives this lecture around the third class of the semester. He believes that informing students of such abusive contracts early in their legal educations allows them to bring a critical perspective to subsequent doctrinal studies and to consider the law’s context and unintended social consequences.
Dr. Crespi has done us several services by publishing this piece: (1) he has given us a brilliant lecture to use if we don’t feel like doing our own critical research; (2) he has kept it short, six printed pages, excluding footnotes; and (3) he has told us some important stories about abusive contracts.
But I wonder if Crespi’s approach is like teaching students to play tennis without a net? Does the first-semester 1L understand the intended consequences of the law well enough to opine on the unintended consequences? Students arrive at law school fluent in cynicism, but they have difficulty describing the relationship between well-established doctrines and the common good. So perhaps students should be encouraged to develop a critical perspective later, rather than sooner.
Using Crespi’s screwdriver analogy, imagine a master carpenter saying to his new apprentice, “The first thing about a screwdriver is that it turns screws. The second thing is that it can open a can of paint. The third thing is that it can be sharpened into a dagger and used to kill a man.” It’s a fascinating narrative, but is it apt for the apprentice? I’m inclined to think students need to know doctrine before they can criticize it and that giving new students the critical perspective too early might cause them to develop a distorted view of Contracts and the world.
Query the right view of Contracts and the world. If the professor think it’s more shanks than screwdrivers, perhaps the critical lesson should come early. I probably won’t be giving that lesson until at least class number four.
[Image by Xeni Jardin]
Tuesday, October 22, 2013
Meredith Miller's post from yesterday touched on a topic that most law professors have considered at some point or other. For years, there has been a movement to replace student-edited law reviews with a more professional model. Judge Posner threw his support behind an operation called PRSM -- the Peer Reviewed Scholarship Marketplace. But the idea has not caught on (judging by the stagnating PRSM membership). In my view, it is a fine thing to have different models out there, so it is fine with me that some student-edited journals are experimenting with peer review (and I hear anecdotally that many student-edited journals have been doing so informally all along). But my main point here is to stress how we all benefit from student-edited journals, and law professors should stop griping and realize how lucky they are to have the current arrangement.
I have written on this subject before here, emphasizing the benefits students derive from their work on law journals. Here is the heart of my argument from that previous post:
Some of the best training that happens at law schools happens at law reviews. I came to law school with ten years of scholarly experience under my belt, because I had written a doctoral dissertation, published historical scholarship and taught before making the jump to law school. Still, my skills as a researcher skyrocketed in my third year as a law student when I was responsible for overseeing a team of cite and substance editors on a number of review essays that we published in our Review of Law and Social Change. The evidentiary standards for legal scholarship are far more exacting than they are in the humanities and the non-quantitative social sciences. No claim can be made without authority. As a result, I became a far more intrepid researcher, and I unlearned intellectual habits acceptable to my former field of study and adopted intellectual habits essential to successful lawyering.
In this post, I would like to address some of the advantages of student-edited journals from the author's perspective. The main advantages of student-edited journals is that they are plentiful and rely on free labor. Since as I explained above, the labor is a valuable component of legal education, I don't feel too badly for the students who are not paid for their editorial work. But their efforts are responsible for raising the level of legal scholarship well above that of other humanities and social sciences.
Having more journals to publish in is good. Allow these adorable kids to explain:
You see, it's not complicated.
When I was a historian, I submitted articles for peer review. I waited 3-6 months for readers' reports. Sometimes the readers' reports were positive, and my article got published without further editing beyond typesetting. Other times I was told to revise and re-submit. In general, I would say that the suggested revisions were recommendations that I recast my own research to satisfy the reviewer, and I was not always convinced that doing so would enhance the quality of the piece. But I would do my best to revise, and there were times when my attempts to satisfy the reviewer were unsuccessful. I could move on to the next journal, but I don't think I ever did. I published in a specialized field, and there were usually only a couple of journals where it made sense for me to publish. The universe of qualified reviewers was also limited. Two of my historical writings, to which I devoted months of work were never published, and one of them should have been.
Without a doubt, legal scholars benefit from being able to submit simultaneously to scores of publications. If none of those publications bite, we wait six months for the next round and try our luck with a fresh crop of editors who may not have the benefit of a meaningful institutional memory. At some point, worthwhile scholarship finds its way into print, and as long as the publication is included on a database, and most journals are, students, attorneys, and scholars can find it regardless of the prestige of the publication.
Okay, so what is the downside?
One potential downside is that a lot of useless nonesense gets published. I would be very interested to see evidence that peer review prevents the publication of useless nonesense. People bandy about the statistic that 40% of law review articles are never cited. Okay, is a higher percentage of peer reviewed material cited? In any case, as I wrote in another post:
As for scholarship itself, Brian Leiter was here a few weeks ago to deliver our annual Seegers Lecture on Jurisprudence. In response to a question about the value of scholarship, he said something very close to my view. Most of what gets published is a dead end. But a certain percentage of it is very valuable, and there is no way of telling ex ante which scholarship is going to move the ball in a meaningful way. That's why we need lots of people doing their best to move the ball and why we need to continue to support faculty scholarship.
The other downside is that students are incompetent as editors not only in selection but also in the way they deal with the text. This, I say, is nonsense. Peer review may be more rigorous but peer editing clearly is not. Whenever I have submitted essays for peer review, the final product is almost identical to the original, except for formatting and the repair of the odd typo. Student editors work hard to improve the quality and clarity of the writing, and they also find authority where it is lacking. They make us seem much more lucid, knowledgeable and careful than we really are -- or than we are when we first submit our offerings up for publication.
The last time I published in a peer-review, peer-edited journal, my piece was: 1) accepted, 2) rejected following a coup on the editorial board, and 3) re-accepted after the coup unraveled. The re-acceptance was conditional on revisions. The readers' reports came to me nearly two years after the original submission, but I received many vague missives from the journal suggesting that I had very little time to make the necessary changes or the journal would pass on publication. I made the requisite changes (which were idiotic and necessitated a new research project) and re-submitted. For months, I heard nothing. My inquiries recieved no response until I received the page proofs. The page proofs corresponded to my original draft. That's right, the "professional editors" who insisted that I revise my article were then prepared to publish my article without the revisions. Publication followed some months later, about two years after the article was first accepted for publication. I know we all have horror stories about student editors, but could they really have done much worse than that?
I have been storing these thoughts up for a while, hoping that I would one day have the time to publish them in a student-edited law journal. For now, a blog post will have to do.
Monday, October 21, 2013
In case you didn't see it, Adam Liptak's Sidebar column in the New York Times takes aim at student-edited law reviews with such zingers as: "Law reviews are such a target-rich environment for ridicule that it is barely sporting to make fun of them." Liptak gets it mostly right in describing the dismal status quo, incluing the utter lack of relevance of most law review articles to the practicing bar. (I had a law professor who said the best way to keep a secret is in a law review article and I tend to think he was right).
I am shocked that this story is newsworthy and I don't necessarily agree with the prescription that "blind screening, peer review and more training for the student editors" would make all the difference. But I am most grateful that Liptak's column references a 1936 essay by Yale Professor Fred Rodell titled “Goodbye to Law Reviews.” It made my day. Check out the abstract:
It is doubtless of no concern to anyone that this is probably my last law review article. As a matter of fact, this makes one more article than I had originally planned to write. It was something in the nature of a New Year's resolution. Yet the request to do a piece about law reviews seemed a golden opportunity to make my future absence from the "Leading Articles, Authors" lists a bit more pointed than would the business of merely sitting in a comer, sucking my thumb, and muttering Boo. Keeping well in line with two traditions—a course which lawyers will readily understand—I decided to break the resolution and not wait for opportunity's second knock. This, then, is by way of explaining why I do not care to contribute further to the qualitatively moribund while quantitatively mushroom-like literature of the law.
There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground. And though it is in the law reviews that the most highly regarded legal literature—and I by no means except those fancy rationalizations of legal action called judicial opinions—is regularly embalmed, it is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so-called style. The average law review writer is peculiarly able to say nothing with an air of great importance. When I Used to read law reviews, I used constantly to be reminded of an elephant trying to swat a fly.
Just proves that there is nothing new to say.
[Meredith R. Miller]
Tuesday, October 8, 2013
From the inaugural post:
We are pleased to introduce our new blog devoted to legal education from the perspective of law deans. We hope this blog will provide a place where you will find information, opinions, and thoughts about a range of topics and issues related to legal education. The editors of this blog are Dean Richard Gershon of the University of Mississippi School of Law, Dean Paul McGreal of the University of Dayton School of Law, and Dean Cynthia Fountaine of the Southern Illinois University School of Law. We look forward to sharing our thoughts about legal education with you and hope you enjoy our blog.
Monday, August 19, 2013
When I started graduate school in 1986, people were saying that the early 90s were going to be a great time for newly minted history Ph.D.s. Universities had exploded in the 60s, and a lot of tenured faculty members were due to retire. There were going to be a lot of openings in a lot of fields. And of course, none of us graduate students were worried in any case because we were young and indestructable -- all brilliant and all certain to continue to be at the top of our fields.
But the people who were hired in the 60s didn't retire, and many of those who did retire were not replaced or were replaced in non-traditional fields. The year I got my Ph.D. (1993) ended up being pretty dismal for newly minted Ph.D.s, and I never found a tenure-track job in history. I never came close. I was on the market for five years and never even got an on-campus interview for a tenure track job at any of the hundreds of universities, colleges, technical colleges and private high schools to which I applied.
When I tried repeatedly and failed repeatedly to get a job teaching history, there were structural problems with gradaute programs in history. Lots of programs were admitting far too many students. They were doing so because gradaute students were a cheap labor supply for teaching (or T.A.ing) undergraduate courses and because faculty members wanted to have graduate students to work with. History departments wanted to develop their Ph.D. programs because that enhanced the reputation of the program and of the university. But there weren't enough jobs, and history programs were not really training people to get jobs, since graduate students were either taking obscure upper-level courses or were working on their far more obscure dissertations that they were hoping to publish as scholarly monographs that only libraries would buy and only other professional historians in their narrow sub-field would read. That remains the model for doctoral programs in history, and the model remains broken. I have no idea why the typical history doctoral student in this country spends at least five years working on a book that almost nobody will read when they could just as easily devote their time to writing 3-5 historical essays of publishable quality which, when published, will eventually be in a database where they will be full-text searchable and actually of use to other scholars and laypeople alike. Harumph!
Contrast that with the feverish if not frenzied innovation that is currently underway in the legal academy. Schools are experimenting in every imaginable way -- reducing faculty and administrative staff, decreasing class size, and most importantly, adjusting the curriculum to better prepare today's students so that they can pass the bar and also be ready to start practice in a legal environment where more seasoned lawyers have very little time to train new attorneys. Those who criticize law schools for being slow to react to the new market for attorneys need some context. The legal academy has been incredibly responsive, and the only questions are whether they have resopnded in the right ways and whether they have correctly identified as either long-term or merely cyclical the problems in the market for attorneys.
My Law School (Valparaiso) is no different, but it is unique. That is, we have been scrambling to figure out better ways to serve our students (just like everyone else), but we have come up with a new curriculum that is unlike any other that I have heard about. On the blog, I just want to talk about how we are transforming the contracts course, but there is a lot more to our new curriculum.
I have already blogged about our LibGuide, which is being curated by our librarian, Jesse Bowman (pictured). I will have a great deal more to say about the LibGuide as it continues to develop, but today I want to talk about our new seven-week minimesters.
Today is the first day of our first minimester. We will be teaching a two-credit Contracts I course for seven weeks. We will then have a break for exams, to be followed by another two-credit, seven-week course, Contracts II. One purpose of the minimester system is to enable us to assess our students and give them meaningful feedback as early as possible in the course of their legal education. So, rather than having a huge exam at the end of the semester, with very little sense of their chances of success on the exam, our students will have frequent assessment throughout the minimester and an exam at the end. The final exam will still be important, but it will only account for part of their grade in a two-credit course, and they should have some notice, based on assessment throughout the semester of where they likely will fall relative to their peers. Since no minimester course counts for more than two-credits, we will not have the phenomenon that sometimes occurs at schools where Property or Civ. Pro are five-credit, one-semester courses, and students neglect other courses in favor of hunting the semester's big game.
At the same time, my doctrinal colleagues and I are working closely with our skills faculty (and there is a great deal of overlap) to coordinate exercises and assessments in doctrinal courses with the subject-matter of our skills courses. Those too have been re-conceived and re-configured from the ground up based on our assessment of where our students are in terms of their preparation for law school and what they need to get them ready for practice.
I will be blogging throughout the semester about the LibGuide and the minimester system. I am really excited about this experiment and eager to see how it works for our students.
Friday, August 16, 2013
Touro Law starts up on Monday. Around this time of year, I am always reminded of this Rodney Dangerfield clip from the movie Back to School:
Dangerfield to Econ Prof: "What's a widget?"
Econ Prof: "It is a fictional product. It doesn't matter."
Dangerfield: "Doesn't matter? Tell that to the bank."
Have a great semester!
[Meredith R. Miller]
Thursday, August 15, 2013
According to Ken's post, he offered his services as a drafting instructor to two prestigious law schools (Ken has been teaching drating courses every Fall since 2005) and was told that those schools don't offer stand-alone contracts drafting courses. Rather, they teach contracts drafting in the context of courses on "Deals."
Ken has eloquent arguments in favor of stand-alone contracts courses, and the comments sections add further support for his position. He will get no argument here. I agree with Ken that drafting should be a stand-alone course, and I suspect that it is at most law schools. Still, I think there are reasons for teaching drafting as part of a substantive course that Ken does not consider, so I throw them out there:
One of the knocks on contemporary legal education (see, e.g. The Carnegie Report and Best Practices) is that the components of legal education (doctrine, practical skills, ethics) have been compartmentalized such that the students do not learn how to become lawyers in the proper contexts and have difficulties translating theoretical constructs into the actual practice of law. So, in an ideal world, one would learn contracts drafting in the context of a substantive course in which one also learned about the legal and business environments in which real contracts are drafting. Such a course would (again, in an ideal world) also include simulations in which students could learn other practical lawyering skills (client counseling, negotiation, etc.), as well as confront ethical challenges.
In a previous post, we called attention to Deborah Zalesne and David Nadvorney's Teaching to Every Student: Explicitly Integrating Skills and Theory into the Contracts Class, which can be used in a course that covers both doctrine and skills. So, I think the sort of integrated approach that certain, unnamed, prestigious law schools are attempting has its theoretical appeal. For my part, since I have only four credits and fourteen weeks to take studens from zero to Llewellyn, I am grateful that my law school has a separate contracts drafting course that students can take in the second year. That doesn't mean that practical exercises have no place in a first-year contracts course, but given everything else we try to accomplish in that course, we can only offer a taste of drafting in the first year.
Friday, August 9, 2013
This year, my colleauges at the Valparaiso University Law School and I, with the help of our librarian, Jeese Bowman (pictured), are teaching with the aid of this LibGuide. The LibGuide contains all of the cases that we will use in our courses, plus links to Restatement, UCC and CISG sections, as well as tabs through which students can find links to excercises, past exams and model answers, study guides, blog posts and other information that might prove useful to our students.
The move to the LibGuide was motivated by a number of considerations. First, we have all used different casebooks and find a great deal to praise and admire in all of them. However, no single casebook can be perfect for each contracts professor's individual needs. I have a roster of cases that I think work best for the material I want to convey to my students. No single casebook includes all of the cases I want to use, and the casebook authors sometimes edit their cases slightly differently than how I would edit them. My colleagues and I edited the cases posted on the LibGuide to suit our teaching needs, and if we differ, we can always put up multiple versions.
Second, even if I could find the perfect casebook that had every single case I want to teach and all the relevant ancillary materials, I still could not justify the expense to my students. Casebook prices are simply too high, since we can deliver the same materials through the LibGuides. I should note that, because I ban laptops and other technology from my classroom, I do require that the students buy xeroxed copies of the edited cases. That will run them $10 a piece for the first seven-week minimester.
Yup! That's not a typo! We are teaching contracts in two, two-credit, seven-week "minimesters," a topic about which I will have a lot to say in future posts.
The LibGuide is still a work in progress. Each week, I send Jesse more materials to add to the LibGuide. This is another advantage of the LibGuide over print course materials. It is easily expanded; easily revised; easily updated.
The final advantage of the LibGuide is (dare I say it?) . . . LibGuides are fun. Ask any librarian! And believe you me, librarians know how to have fun. They are fun for the same reason that this blog is fun. You can follow links that interest you, and they often take you to unexpected and illuminating places. We hope that our LibGuide will grow and prosper and that it will provide a portal through which our students can wander cautiously, tentatively until [whoosh!] they fall down a rabbit hole and emerge in the Wonderland of contract law.
Wednesday, May 1, 2013
Ave Maria School of Law invites applications for multiple faculty positions from entry-level and lateral candidates, pre- or post-tenure. Ave Maria particularly welcomes applications from candidates with teaching and research interest in Contracts, Business Organizations, Sales, Negotiable Instruments, Secured Transactions, and related commercial subjects. Applicants should have superior academic credentials; a record, or the promise, of excellence in teaching and legal scholarship; and an interest and commitment in exploring his or her teaching and research interests in an institution that strives to integrate the Catholic intellectual tradition into teaching, scholarship, and service. Entry-level applicants may demonstrate scholarly promise by publications in scholarly journals or scholarly works in progress. In the case of any applicant with tenure, a distinguished record of teaching and scholarship is required. Interested candidates should send their materials to Professor Patrick T. Gillen, current chair of the Appointments Committee. Applications can be e-mailed to Professor Gillen at email@example.com or can be mailed to his attention at 1025 Commons Circle, Naples, Florida 34119. Resume review will begin immediately and continue until the positions are filled.
Ave Maria School of Law, providing legal education enriched by the Catholic Faith, seeks employees whose education, experience and beliefs are consistent with its mission. Ave Maria School of Law is an EQUAL OPPORTUNITY/AFFIRMATIVE ACTION employer that values diversity, including diversity in religious affiliation, and strongly encourages applications from persons of diverse backgrounds willing to support the institutional mission; it requires compliance with all state and federal laws governing employment discrimination.
Thursday, April 4, 2013
I thought I might jump on the “classroom posts” bandwagon and blog a little about something I have been trying to do more of in my Contracts class – incorporate contract clauses in class discussions. What I typically do is introduce a contract provision when I’m wrapping up a particular topic. For example, when we finished up the section on substantial performance (and breach and conditions- it’s hard to talk about one without the other, IMHO), I asked my students about the meaning and effect of this provision:
“ TIME SHALL BE OF THE ESSENCE IN THE PERFORMANCE OF THE OBLIGATIONS UNDER THIS AGREEMENT. “
The phrasing sometimes throws off students – what’s this “of the essence” business? But they realize that the provision indicates that the timeliness of performance is important to the parties. In other words, if the services are to be performed according to a schedule, they intend to stick to the schedule. More to the point, without such a clause, a court will probably not find a small delay to be a material breach. With the clause, even a short delay may constitute a material breach - which brings me to substantial performance. A material breach has legal effects, one of which is that a party who has materially breached has not substantially performed -- and so can’t recover expectations damages under the doctrine of substantial performance. A material breach also excuses the other party’s performance.
The clause illustrates how the different doctrines work together, and given the emphasis on “skills” teaching, underscores that doctrine and skills are really intertwined. (I’m not sure how anyone can effectively teach skills without a good grasp of the underlying doctrine). Another reason to introduce contract clauses is to help my students overcome the automatic response that most normal people get when they see boilerplate – glazed eyes, numbing sensation, urge to do something more exciting. My hope is that once they learn the legal meaning behind the legalese, reading a contract will be a more engaging and rewarding experience.
Monday, April 1, 2013
Having recieved comments from numerous quarters, including from this blog's own Meredith Miller, the ABA Task Force on the Future of Legal Education, has announced that it is recommending that all areas of law now be understood as subsidiaries of contracts law. In addition to recommending that all law schools require their students to take six hours of contracts in the first year, the Task Force is recommending that second year students take required courses in Sales, Leases, Licensing and International Sales. Those courses, including related live-client courses, simulations, moot court and trial advocacy competitions, and practica, will constitute much of the second year curriculum.
According to the Task Force sources who asked not to be named because the Task Force's report has yet to be released officially, those elements of the reform proposal were uncontroversial. "Everyone recognizes that all lawyers need a firm grounding in contracts and contract-related areas. The only question disagreement on the Task Force was over whether six credits in the first year was enough. Some members wanted 24."
Somewhat more controversial is the Task Force's recommendation that other areas of law be subsumed within the law of contracts. According to our source, the Task Force is recommending that both Constitutional Law and Criminal Law be re-conceptualized as constituting either actual contracts or social contracts best understood with the traditional doctrinal tools of contracts law. The Task Force concedes that this innovation was in part driven by a desire to reduce students' text book costs. "All they have to buy is one, maybe two books by Randy Barnett, and they are covered," according to our source. In addition, the Task Force recommends that International law courses will now be divided into Private International Contracts and Public International Contracts (Treaties).
When asked if the Task Force anticipated difficulties persuading faculty members from other doctrinal areas to re-conceive those areas in terms of contracts law, our source told us that the Task Force considered the question and could not conceive of a doctrinal area that would not be better understood through contracts doctrine.
UPDATE: THE FULL TASK FORCE PRESS RELEASE CAN BE FOUND HERE.
Tuesday, December 18, 2012
Jeremy has been writing thoughtfully on these pages about curricular reform. Those interested in the subject (and/or metaphors about elephants and 800 pound gorillas) may want to read the comment that my extraordinary colleague (and contractsprof) Jack Graves and I submitted to the ABA Task Force ont he Future of Legal Education. Here's the link.
[Meredith R. Miller]
Friday, December 14, 2012
The title of this post references Richard Arum and Josipa Roksa's influential 2011 book, Academically Adrift: Limited Learning on College Campuses. For the sake of argument, let's assume that this book accurately reflects the state of higher education. That is, let us assume the following:
- Undergraduates attending U.S. colleges and universities report that learning is not their top priority;
- Students make alarmingly little academic progress, especially in terms of critical thinking, complex reasoning and writing, during their four years of undergraduate education;
- The gap between students who get a lot out of their undergraduate educations and those who get little is at least persistent and perhaps growing;
In addition, let us adopt the hypothesis that our students are not adults, but emerging adults. That is, let us assume that our students are not fully formed, cognitively or emotionally. They are beginning to accept the responsibiltiies of adulthood, but they are not really there yet.
For those of you who have been following this series of posts, the answer might not be surprising. Students are not learning the skills that a liberal arts education used to provide. One way to make certain that they develop those skills is by providing a liberal arts education in law school. It would not be a traditional liberal arts education but a liberal arts education designed to meet the needs of twenty-somethings rather than teens, and clearly oriented towards arriving at practical, professional goals. As I suggested before, for most law schools, the model should be small, cloistered liberal arts education, at least in the first year, rather than the research university model. In some ways, designing this curriculum is easy and a lot of fun, because we already know what our students want to do career-wise. We don't have to design a one-size, fits-all curriculum that would be appropriate for both English majors and engineers and everything in between. Whether our law students are English majors or engineers, they still need the same package of professional skills necessary for the legal profession.
While tuition pressures and student impatience and immaturity are pushing reform towards a shorter law school curriculum, our students really need a longer and more intense learning experience in law school. Most but not all law schools would benefit from a first year designed to get students' critical thinking, complex reasoning and writing skills to the level that, twenty years ago, was presumptively already achieved after college. That means they need to take a lot of small, writing-intensive courses while also learning professional skills and training for an ethically challenging, client-centered practice.
Finding a way to deliver such an education without greatly increasing our students' debt-load is of course the great challenge. One option would be to create a hybrid model in which the first two years of legal education focus on the sort of liberal arts cognitive and ethical skills development that I discussed above, combined with the sort of integrated doctrinal education that has been subject of previous posts. The second two years (yes, the second two years) should be underwritten by prospective employers who work collaboratively with law schools to develop a curriculum that is part apprenticeship, part law clinic and part bar preparation. So, while law school now takes four years, students only pay for two of them, with the firms or businesses covering remaining tuition costs in lieu of salaries for their apprentices. In principle, all four years of such a legal education could be rewarding and challenging for the students, and they would emerge far better prepared for practice that they are under the current system.
This is just one idea for addressing our students' needs, if in fact the assumptions that inform this design are accurate. I am agnostic on the question of whether undergraduates really are academically adrift and are emerging rather than fully matured adults. Like everyone in the academy, I have my own views, but I admit that they are anecdotal and unscientific. I have chosen these assumptions because they seem to be informing a lot of the ideas for change that are driving the movement for curricular reform at law schools today. But I think there is a disconnect between the problem and the solution.
Law schools are playing a game of "Can You Top This?" by touting their clinical and skills training programs, because that seems to be what the students and the market are demanding. But if students lack basic cognitive skills, as well as maturity, what is the rush to get them into practice? We all need to slow down. If the assumptions listed above are informing calls for change, we need to wait for our students to become adults before we force them to deal with adult problems. We can't expect them to magically develop critical thinking, complex reasoning and writing skills by simply throwing them into practice. We also should not give up on their cognitive development because, if the emerging adulthood literature is right, our students are still capable of intellectual growth of a kind that our adult brains cannot match.
As educators, our main concern is providing our students with the training they need so that they can succeed in the profession of their choosing. But as legal educators, we also have to consider the needs of our students' future clients. The fact that our students want to serve clients as soon as possible is not a sufficient reason to let them do so before they are ready both in terms of their cognitive development and their maturity.
I should add that my thoughts in this area have been influenced by the work of two of my colleagues, Susan Stuart (right) and Ruth Vance (left), who are engaged in a scholarly project devoted to working out the long-term consequences for legal education of the latest research into the preparedness and cognitive development of the current generation of law students. My thoughts here only scratch the surface of the subject matter. And those interested in the topic should look for Ruth and Susan's work, which we all hope will be coming to a law journal near you in the near future.
Monday, December 10, 2012
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