Monday, December 23, 2013
One of the unexpected benefits of global acquisitions and diversification of multinational enterprises is that the companies occasionally pop up in interesting contracts cases. Such is the situation in Hoffman v. Daimler Trucks North America, LLC, a case from the Western District of Virginia involving the purchase of an RV that was such a lemon only the mice could love it. Daimler Trucks, a wholly owned subsidiary of Daimler AG, got itself entangled in this case through Freightliner Trucks, its U.S. truck division, and earned itself a quick education in U.S. warranty law.
The case offers some interesting reflections on the interrelationship and interactions between state and federal law with respect to the creation and disclaimer of warranties in the consumer purchase context, as well as the role played by specialized statutes like vehicle lemon laws. Too often, the basic Contracts course barely has time to deal with UCC warranty law and lore, and so the compact treatment of these issues can be a useful hand-off for students interested in exploring some of the implications of warranty law and policy.
On the federal side, we have the Magnuson–Moss Warranty Act — affectionately known as the Federal Trade Commission Improvement Act of 1975, 15 U.S.C. § 2301 et seq. Magnuson-Moss establishes federal minimum standards for warranties if and when a written warranty is offered. If a seller does offer a written warranty to a consumer, seller may not disclaim or modify any implied warranties. 15 U.S.C. § 2308(a). Any written warranties must be made available to the consumer prior to the sale. 15 U.S.C. § 2302(b)(1)(A).
On the state side, of course, we have substantive warranty law represented by the UCC. The UCC will be relevant even when Magnuson-Moss is not (i.e., when an oral, but not a written warranty is offered to the consumer). In contrast with federal law, the UCC permits disclaimer of express and implied warranties, but imposes requirements when a seller attempts to disclaim. UCC § 2-316. Hence, the applicability of Magnuson-Moss could make a substantial difference in a case where disclaimer of warranty is an important issue.
The story so far . . .
In the fall of 2010, Donald Kent Hoffman of Fishersville, Virginia, bought a Tuscany recreational vehicle from RV dealer Camping World. The RV had been manufactured by Thor Motor Coach and included a chassis built by Daimler Trucks North America and various component parts supplied by Drew Industries. To Mr. Hoffman’s deep disappointment, there were very few things about his RV that weren’t problematic, and so Hoffman and the RV spent nine out of their first ten months together off the road and in the shop. Indeed, the situation was so dire that, during one of the repair episodes at Camping World, the RV developed a mouse infestation because it was left outside for an extended period of time.
The mice were apparently untroubled by the flaws in the RV. Among other things, the automatic leveler and indicator lights did not work, nor did the water and waste water indicator lights. The aisle lights in the coach did not work. The deadbolt in the cabin did not work, but then the door didn’t lock from the inside anyway. The door did manage to leak water into the cabin when it rained, however, and the sprayer on the kitchen sink leaked. There was no heat in the vehicle. The front seat did not properly swivel or recline. The map light did not work. The airbags deflated. The driver's side mirror would not stay in place. The control panel did not function properly, nor did the window shades. The steps were installed improperly. The batteries died quickly. In addition, various features that Hoffman said he had been promised were absent from the RV – there was no GPS as promised, and no satellite television.
Daimler, trading as Freightliner, entered the story during the course of Hoffman’s tortuous attempts to coordinate warranty coverage. Camping World told Hoffman that the problem with the air bags would have to be addressed by Freightliner, but Hoffman reported back that Freightliner said it was “ok as per truck stand[a]rds.” Meanwhile, the general twelve-month warranty on the RV was set to expire on or about October 29, 2011. Before this happened, Hoffman attempted to revoke his acceptance of the RV by dropping it off at Camping World and seeking a refund of the purchase price. (The RV apparently remains at Camping World pending the outcome of the litigation, although there is no indication in the court’s opinion where the mice are at this point.)
In April 2012, the long-suffering, travel-deprived Mr. Hoffman brought suit in state court against Camping World, Daimler Trucks, Drew, and Thor for breach of express and implied warranties under Magnuson-Moss and the Virginia Uniform Commercial Code (VUCC), and against Thor under Virginia’s Motor Vehicle Warranty Enforcement Act, popularly known as the Virginia Lemon Law, Va. Code Ann. § 59.1–207.11 et seq. Thor and Camping World, the only defendants served at that point, managed to have the action removed to federal district court, since neither apparently was a Virginia resident.
At this juncture, the scope of the Virginia Lemon Law became an issue. There is some authority that the Virginia Lemon Law does not apply to a completed motor home, but only to the “self-propelled motorized chassis,” Va. Code Ann. § 59.1–207.11. Since Daimler Trucks manufactured the chassis, Hoffman amended his complaint to name Daimler Trucks as the correct defendant on the Lemon Law claim. At that point, the defendants filed motions to dismiss.
The retailer’s disclaimers
The interaction of the three relevant bodies of law – Magnuson-Moss, UCC § 2-316, and the Lemon Law – is critical to the motions to dismiss. The express warranties that Hoffman relied on in his claims against Camping World were not written, hence not covered by Magnuson-Moss, and Camping World argued that it had validly disclaimed any express warranties via a merger clause in the written contract of sale, and that it had disclaimed any implied warranties in a conspicuous manner as required by VUCC § 2-316(2).
Boldly going where most Contracts students have not gone before, Judge James C. Turk found that a merger clause in the contract of sale, coupled with the parole evidence rule embodied in UCC § 2-202, overcame Hoffman’s express warranty claim. As to the implied warranty, however, in a clear and succinct discussion Judge Turk found that the relevant disclaimer clause was not conspicuous for purposes of disclaiming the implied warranties, and he denied Camping World’s motion to dismiss as to the implied warranty claims.
The manufacturer’s disclaimers
Thor’s argument was that its written warranty reduced the limitation period to “90 days after the expiration of the [designated] warranty coverage period,” or in other words three months after the one-year warranty. However, Thor’s warranty language was ambiguous; the same page also referred to a two-year warranty on the vehicle frame, which might make the limitation period in question 27 months instead of 15 months. Rejecting the approach taken in the now-classic RV warranty case, Merricks v. Monaco Coach Corp., and relying on the limitation rules of UCC § 2-725, Judge Turk decided that “Hoffman could not accept the limitation period by passive acceptance of the RV without objection to the pertinent warranty provision.”
As to the two claims against Daimler Trucks – one for breach of express and implied warranties and the other for violation of the Lemon Law – Daimler Trucks argued that Hoffman had simply failed to state a claim for breach of warranty and that the Lemon Law claim was untimely. On the latter argument, which is somewhat beyond our scope, the court allowed relation back to the original filing date of the complaint in determining that the Lemon Law claim against Daimler Trucks in the amended complaint was not time-barred.
On the breach of warranty claim, Judge Turk agreed that Hoffman had failed to plead specific breaches attributable to Daimler Trucks, and hence dismissed the claim against the manufacturer with leave to amend. More importantly from a teaching perspective, the Daimler situation illustrates the impact of Magnuson-Moss clearly and succinctly. Daimler Trucks purported to disclaim all implied warranties in its written warranty, but that contravened Magnuson-Moss. Once the supplier gives a written warranty, it cannot wholly disclaim implied warranties. 15 U.S.C. § 2308. Hence, Hoffman’s implied warranty claims against Daimler Trucks would survive a disclaimer argument.
The supplier’s arguments
Drew, the components supplier, argued that Hoffman’s claims were untimely and that, in any event, its express and implied warranties applied only to Thor, not to the consumer. The timeliness argument neatly illustrates the difference between warranty periods and limitation periods, which, in the court’s view, Drew had confused. Drew had argued that the claims were untimely because they weren’t brought within the one-year warranty period. Judge Turk was quick to point out that “[t]he warranty and limitation periods, however, are not identical concepts. The warranty period covers the component parts for a specified period of time; in other words, it defines the time in which the warrantor has a responsibility to repair or replace the covered parts. The limitation period, however, places constraints on the time in which the buyer must sue.” Simply put, the parties had not agreed to reduce the limitations period “by the original agreement,” per UCC § 2-725(1), and so the UCC default four-year statute of limitations applied.
On the warranty issues, Drew was on stronger ground. Drew claimed that its limited express warranty extended coverage only to Thor, the initial purchaser, and not to the consumer. The Court agreed. Based on a Fourth Circuit warranty case, Buettner v. R.W. Martin & Sons, Inc., which involved a remote supplier who had not even given an express warranty to its immediate purchaser, Judge Turk argued that “an original seller is still free to disclaim warranties as to foreseeable users. . . . The Drew limited warranty plainly extended only to the initial purchaser and Hoffman is not entitled to enforce its protections.”
Drew also argued that it had effectively disclaimed all implied warranties in the text of its written express warranty, but Hoffman countered that this attempt was ineffective because Magnuson-Moss prohibits such disclaimers when the supplier provides a written warranty to a consumer. Here the court found that Magnuson-Moss was not applicable, because Drew did not offer Hoffman a “written warranty” as the term is understood by Magnuson-Moss, because the warranty was intended for the product manufacturer, not the ultimate consumer, per 16 C.F.R. § 700.3(c). Hence, the Magnuson-Moss limitation on disclaimers of implied warranties was inapplicable, and UCC disclaimer rules governed. The court found the disclaimer sufficiently conspicuous to pass muster under UCC 2-316, and it dismissed the claim against Drew.
I would recommend this case to anyone seeking an exemplary discussion of the interplay of federal, UCC, and consumer law with respect to warranties. Judge Turk is undeterred by the complexities of the overlapping issues and multiple defendants, and his analysis is clear, concise, and informative. Students looking for further guidance on these issues would benefit from a careful review of Hoffman.
Sunday, December 8, 2013
My contracts students have their exam tomorrow. I held office hours today, since classes just ended on Thursday, and I had quite a bit of traffic. My students seem primed for the exam -- their knowledge of contracts law is approaching an all-time high.
In case any of my students that I didn't get to see today are looking at the blog, I just want to wish you good luck.
Tuesday, November 12, 2013
When teaching contracts I deal with a delimma. I feel that any law student who graduates and could not carry on a cocktail party discussion about the Coase Theorem has been short changed. There are many places in a contracts class where one might address the theorem. (Of course maybe we all assume someone else will do it.) In fact, if one teaches Walgreen Co. v. Sara Creek Property, you almost have to go out of your way to avoid discussing it even if you do not name it. Specific performance generally invites discussion of the Theorem. It also comes up, if you want it to, any time you ask the class how the parties could avoid an issue. In effect, the could bargain around many problems.
The problem is that, once mentioned, how do you keep it from showing up repeatedly on final exam essay answers? It might legitimately come up in a policy discussion about specific performance but I am pretty sure I have never asked a question that would call for that analysis. It is less pesky than "good faith" and "unconscionability" which tend to worm their way into any answers the students find complicated.
In fact, when teaching anything (for me that means copyright, antitrust. law and economics, and contracts) there are many pieces of information that you may feel make for a better educated law student. Once you mention them they will find their way into exam answer because, well . . . . that's what students do. So how do you enlighten them in a way that rounds them out without also signaling that they need to cram the information into their exam answer?
Tuesday, November 5, 2013
One of the oddities of our new minimester system is that we have two, seven-week contracts courses back-to-back. All of my students from Contracts I and back for Contracts II. And I'm happy to see them. But because my students (well about 3/4 of them) filled out evaluations at the end of the first minimester, I know that not all of them are happy to see me. Ironically, one of the questions on the evaluation form asks students if they would be interested in taking other courses from the instructor. Bummer for those who answered no, given that first year law students don't generally get a choice.
But that little awkwardness aside, getting evaluations at this point is very valuable, and based on the constructive criticism contained in the evaluations, I have made some changes to Contracts II, which otherwise is structured similarly to Contracts I. These changes are as follows:
- As I have mentioned in this space before here, rather than having a casebook and statutory supplment, my colleague Mark Adams and I have edited the cases that we teach, and our Digital Services Librarian, Jesse Bowman (pictured) has put together a LibGuide that features our edited cases, links to the R.2d and UCC and lots other goodies. Many students complained that without a casebook to place the cases in context, they really didn't know what to look for in the readings. I think students are wrong if they think that a casebook would guide them through the cases, since that's not really the pedagogical model in law school. Nor should it be, really. However, given that many students are relying on supplements, I decided to abandon my usual disclaimers about supplements, and I recommended one particular supplement (Blum's Examples and Explanations for Contracts). Students can read the introductory material on each topic before reading the cases to get a sense of what to look for. They can also do the problems at the end of each chapter, which I think are excellent.
- Although I think most of my students understand why I ban laptops and other electronic devices from my classrooms, some students complained of their inability to take notes while also listening to class discussion and viewing the PowerPoint slides. Stealing an idea (which she neglected to copyright) from my co-blogger Nancy Kim, I have appointed three official note takers in each section of contracts. While students are still encouraged to do their own note-taking, the hope is that that official note-takers' work (which I put up on the LibGuide without reviewing them) will serve as a helpful backstop. Students do not need to obsess about getting everything down in their notes. If they miss something, they can rely on the official note-takers to cover it.
- In general, I try to discourage students from obsessing over careful in-class note-taking in any case. I tell them the course is mostly just a friendly discussion about the law -- a party to which everyone is invited. They should just relax and ride the waves, and they can do so, within reason, because at the end of the semeser I hold a comprehensive review session in which I deliver (orally) an outline of the course material at the level of detail for which they will be responsible on the exam. If they have been keeping up with the readings, following class discussion and outlining on their own, that review session should pull it all together for the students (which is why I usually do not recommend supplementary materials). However, I now give short in-class quizzes to my students every two weeks, and that limits their ability to remain carefree until the review session. So, I added a mid-semester (mid-minimester) review session that covers the first half of the course.
So, we'll see. I try wherever possible to adjust my course in response to serious student criticisms. Even if I don't entirely agree with the criticisms, there is no point in persisting with a pedagogy that students actively resist. Still, there are some bedrock principles on which I won't compromise, and so the adjustments I have made are an attempt to improve the delivery of the curriculum in a manner consistent with my ideas about optimal teaching methods.
Thursday, October 31, 2013
I have been periodically reporting in this space on my Law School's new curriculum, which features a new approach to contracts. We have broken each semester into two, seven-week minimesters, and the traditional four-credit, fourteen-week contracts course has been broken into two, two-credit, seven-week courses. As a result, our students had their first set of final exams three weeks ago. They got their grades in mid-October, and I have been meeting with them one-on-one ever since.
I offered a first set of observations on the experiment here. Now that I have been meeting with students, here are a few additional thoughts.
- Far more students have requested conferences with me to go over their exams this year than in any past year. I would put the rate of increased traffic at somewhere between 300% and 500%.
- So far, my conversations with my students have focused entirely on how they can improve their performance on the next exam. No students have come to question their grades, gripe about their grades or complain about the exam or the exam-taking environment.
- Usually, the only students who talk to me about their exams are the students who performed the worst. This semester it has been a mix of some of the top students and most of the bottom students. I haven't seen that many of the students in the meaty part of the curve, but that might be a product of their understanding that a certain triage is taking place. Students who did poorly on the exams need to be meeting with me so that they can get to work right away on remedying identifiable problems. For the rest, there is less urgency.
- To a surprising degree, the meetings have enabled me to identify the nature of the students' problems. It is the rare student who failed miserably on all aspects of the exam. Some have significant deficiencies on multiple choice; some did not IRAC, even though they all know that they have to IRAC. Sometimes, there were specific doctrines that the students had failed to grasp. I hope that this information is useful to them, and to the extent that there are patterns, it is highly useful to me.
- All of this is a lot of work. It is a lot of work for me, and that's okay, but it also puts huge strain on our staff. Schools that might be considering emulating our approach will have to consider the attendant quality-of-work-environment issues. It is also a lot of work for our students to think about what went wrong last minimester when they have also slipped into a new minimester featuring two new substantive law courses without any break.
- One of our main goals with the minimester system is to identify students who are at risk as early as possible and to get them the help we can offer through our ASP program or simply by identifying areas where they can improve their performance. We will be better to gauge the success of this early intervention program at the end of the second minimester in December.
Thursday, October 17, 2013
I have been periodically reporting in this space on my Law School's new curriculum, which features a new approach to contracts. We have broken each semester into two, seven-week minimesters, and the traditional four-credit, fourteen-week contracts course has been broken into two, two-credit, seven-week courses. As a result, I have just finished grading my students' final exams.
Here are some preliminary thoughts on the experiment thus far:
1. The frequent assessments that we did helped me to understand that students have difficulties with concepts that I had forgotten were difficult. I'm sure these concepts were difficult for me as well when I was a law student, but after teaching for ten years, they have become dangerously familiar. For example, I discovered that the distinction between "additional" and "different" terms in UCC 2-207 is not obvious to a lot of students. I never paused to consider that in past years, but we had a quiz on the battle of the forms, and many students preparing for the quiz asked me to explain it. Similarly, I learned this year that the phrase "within the statute of frauds" does not obviously and easily translate into "a type of contract that, in order to be enforceable, must be in a writing signed by the party to be charged."
2. I had some concerns going in that it would be difficult for students to prepare themselves for a law school exam just seven weeks into their first semester, and there were no doubt students for whom seven weeks was not enough time to digest all the material we covered in the first minimester. So, I am a bit concerned that some students will underperform on this exam because they are slower than the median at making the adjustment to the law school environment, and I suspect there are students who are slow at the start but nonetheless are capable of developing a profound understanding of the law. But see #4.
3. I also had concerns about our students' preparation for law school essay exams, but I actually found that this year's essays were not qualitatively different from those of past years, to the extent that comparison is possible. There was, as always, a tremendous range in students' approaches to writing the essays, but it was all within expected parameters.
4. The purpose of the minimester in contracts is to give students a meaningful assessment early on. This will give students a realistic sense of where they stand in relation to their peers. It will also help us to identify the students who need additional academic support, and it may even help us to identify what sort of academic support they need. Since all law students are above average, I expect that many of my students will be disappointed by the grades they receive in Contracts I. I hope that their response will not be to become discouraged but to re-double their efforts and get the support they need from our able academic support team.
5. In years past, when a student would perform dismally in contracts, there was not much I could do beyond handing tissues and hoping that the poor performance was a fluke. This year, because of the minimester system, I have a real opportunity to work with students to address difficulties before they become career-threatening. And if students perform consistently poorly in both Contracts I and Contracts II, I will feel much more confident not in showing students the door but in encouraging them to prepare themselves for the possibility that a career in the law may not be in the cards.
My students will get their first minimester grades at the end of the week. I expect that I will be very busy next week meeting with students who want to go over their exams and extract valuable lessons from the experience. Part II of this post will address the extent to which that expectation is met.
Wednesday, October 9, 2013
I am very interested to see what the Law School Deans have to say on their new blog on legal education. This is a subject that interests us over at the ContractsProfs Blog as well. The Deans have already posted in praise of the ABA recommendation that the 20-hour/week limit on employment for full-time students be eliminated. I agree with the logic of the argument -- the ABA does not prohibit students from doing anything else (moot court competition, law review, student government, video games) more than twenty hours a week, so why should it prohibit employment?
Still, I think there is an answer. There may be students who can work more than 20 hours a week and still excel in law school, but I think they would be exceptional. For most students, law school is hard in ways that college is not. And they do not realize that coming in. They worked through college, so they think they can work their way through law school. But by the time they learn that law school presents new challenges, they have already done permanent damage to their transcripts. The 20-hour rule is profilactic, so it is bound to be overinclusive, but this is probably a situation where a bright-line rule makes sense.
It is true that students can spend time in non-remunerative activities to their heart's content but I think there is a difference. Students can tell both themselves and their professors, "I'm sorry; I don't have time to prepare for your class because I have a job." That excuse will not work as well with any other activity. And to the extent that students are putting in extra hours in activities like moot court competitions, law review, clinical work or pro-bono legal activities, those are all part of their legal educations.
The argument that students need to work to support themselves doesn't necessarily fly, since many of them are working in jobs that pay very little compared to the debt they are incurring. They are far better off getting the most out of their investment in legal education than they are earning pocket money. These sentiments open me up to the accusation of paternalism, and I cannot deny that the accusations score a palpable hit. But in an educational context in which much of the curriculum is required, and a good deal more of it is very strongly recommended, I think we crossed that line long ago in far more substantial ways.
One of the main things that I try to get across, especially to first-year students, is that this, meaning law school, is their job now. There may be personal crises and family emergencies that call out for our students' attention, but students have to negotiate those demands and the demands of law school just as they would those demands and the demands of the working world. The law school curriclum is not going to wait for them. If students are distracted when we go over the statute of frauds and the parol evidence rule, they should not expect to be able to catch up when we are covering remedies. There just won't be time.
It is fine with me if the ABA gets rid of the 20-hour rule, but if it did so, I would recommend that my own law school adopt its own 20-hour rule for our students, with the possibility of exemptions (perhaps issued by the Dean of Students) in special cases when we know the student can handle the demands of both work and school. If we are going to have paternalist rules, they should come from within the house rather than from our ABA Big Brother's house.
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, October 7, 2013
One of my students, Maison Haines (pictured) gave herself a practice exam by writing up a summary of the contracts issues in Disney's film, The Little Mermaid. Indeed, there is much of value to be learned from the exercise, some of which relates to defenses and so was beyond Maison's contracts education at this point. Still, I have used her essay as a point of departure for this post.
Maison summarizes the plot as follows:
Ariel, a hopeless romantic mermaid, defies her father by constantly going to the . She dreams of living on land and how wonderful it would be. . . . One night, she notices bright lights in the sky, so she once again wanders to the surface to investigate. She swims upon a ship with none other than Prince Eric aboard it. She notices the dapper prince right away because he is handsome and is playing the snarfflak [flute]. She falls in love immediately. . . . Meanwhile, the wicked witch Ursula is keeping a close eye on King Triton’s youngest daughter. Ursula is looking to get revenge on King Triton, and what better way than through his curious, love-struck daughter. Ursula proposes an offer to Ariel, which is really where our story begins.
The wicked witch offers to turn Ariel into a human for three days. Ursula tells Ariel about how she can be with her prince, fall in love, and live happily ever after. Ursula tells Ariel she can remain a human forever if she makes Eric fall in love with her. He has to prove his true love for her by kissing her before “the sun sets on the third day.” The only thing Ursula wants in payment is Ariel’s voice. . . . Next, Ariel signs on the dotted line, loses her voice to the sea witch, and makes her way to the surface of the water where she will live for the next three days.
Now, as it turns out, our blog is not the first blawg to consider the contractual issues in Disney's The Little Princess. Findlaw's Legal Grounds blog posted on the subject back in August and The Utter Meaninglessness of Everything (Meaninglessness) blog did so back in 2008. There is considerable overlap among the posts.
All noticed, for example that Ariel's contract with Ursula should have been voidable, because Ariel was an infant (under 18) when she signed it. Maison expressed outrage that the whole plot of the movie is now implausible to her because the infancy doctrine precludes most of it. Never fear! We don't actually know whether the infancy rule applies under the sea.
In addition, Ariel also has a strong argument that Ursula did not act in good faith. She interfers in various ways with Ariel's attempts to get Eric to kiss her, sending her eels to interrupt a kiss and ultimately seducing Eric herself with the help of Ariel's purloined voice and a bit of magic. Once again thought, it may be asking a bit too much to apply these concepts to the watery realms inhabited by the parties to this agreement. After all, can one really make a straight-faced claim that Ursula the Sea Witch did not perform her contract in good faith? She's a sea witch. If you want a fair deal, try Glinda.
Legal Grounds thinks the contract may be void for vagueness, as the key term "true love's kiss" is unclear. I'm not sure I buy that one, as the parties do not seem to be in any doubt. It's a Disney movie, after all, so the ingredients for true love's kiss are: prince, two-legs, pulse (functioning neurons optional).
Meaninglesness suggests that Ariel's father, King Triton, could have declared the contract void as contrary to public policy, which seems about right, except that I'm not entirely comfortable with empowering the executive with authority to avoid commercial contracts involving family members. I think, under the sea, an Article Trident judge ought to make that call.
But getting back to Maison's take on all this, she points out that, after Triton's failed attempt to avoid the contract by blowing it up with his Trident, the contract was effectively modified. Triton offers himself up in Ariel's place in Ursula's collection of unfortunate souls. His agreement with Ursula is made in consideration of Ursula's promise to free Ariel. But Ursula is now no mere sea witch, she is the ruler of the seas, and things don't look so great for Ariel and Eric. Fortunately, the happy couple is able to impale Ursula, disembowel her and then ride the stream of entrails into calmer and more familiar seas. Or that's how I remember it. I haven't watched the movie in a while.
The Hans Christian Anderson story on which the movie is based is similar but much, much stranger. In Anderson's version (memorialized in the statute above right), the sea witch is even more grotesque than in the movie, and here is what she offers the little mermaid:
I will mix you a potion. Drink it tomorrow morning before the sun rises, while you are sitting on the beach. Your tail will divide and shrink, until it becomes what human beings call 'pretty legs.' It will hurt; it will feel as if a sword were going through your body. All who see you will say that you are the most beautiful human child they have ever seen. You will walk more gracefully than any dancer; but every time your foot touches the ground it will feel as though you were walking on knives so sharp that your blood must flow. If you are willing to suffer all this, then I can help you.
Some deal! The little mermaid takes the deal because she is after an immortal soul. If she fails to make the prince so love her "that he forgets both his father and mother, because his every thought concerns only you, and he orders the priest to take his right hand and place it in yours, so that you become man and wife" (less ambiguity about the promise here!), she will immediately become foam on the ocean.
In Anderson's version, the little mermaid fails to fulfill her end of the bargain, as the prince falls in love with a beautiful princess. This time, it is the little mermaid's sisters (rather than her father) who offer up a modification of the contract with the sea witch. They trade their hair for a knife that the little mermaid is to use to kill the prince, but . . . ah, I don't want to spoil the ending for you.
Wednesday, October 2, 2013
I have posted before about my approach to review sessions, which I have summed up in a picture to the left. I have colleagues who ask students to come with questions and hold forth on whatever issues the students raise, but in my experience, the students cannot be relied upon to identify the "unknown unknowns" and they may be too shy or embarrassed to articulate the "known unknowns." I just deliver an outline of the course to my students while they frantically type.
But wait, why am I even talking about review sessions only seven weeks into the semester? Well, I am holding review sessions for my contracts students this week because we are teaching contracts this year in two, seven-week, two-credit units. My students have their exams for the first "minimester" next week.
As I explained back in 2009:
One of my main pedagogical goals, and I make no claim to originality here, is to get students to think of law school as being about much more than just learning a bunch of rules. Nobody would need a lawyer if they could simply use Google to find the answers to their legal questions. Rather, lawyers help solve complex problems that may well fall between clear legal rules or where several competing rules may apply. In order to persuade a court to apply the rules most favorable to their clients or to apply the rules in the most favorable ways, lawyers need persuasive tools beyond knowledge of the black-letter law.
We spend most of the semester working on those skills through broad-ranging and perhaps rambling discussions on the interaction of law and policy. If students are too fixated on learning rules, they can't fully engage in what I consider the more important part of the course. In any case, in lots of areas of contracts doctrine, the rules are far from fixed.
I remind my students throughout the semester that I will feed them some red meat at the end of the semester. I hope to thereby enable them to relax and partake of the joy-filled fun ride that is the law of contracts.
My approch to teaching has become more challenging to implement with the advent of the minimester and with more frequent assessments. We no longer have the luxury of relaxed conversations over the course of a 14-week semester during which students' understandings of legal doctrinces gestate and coalesce. Rather, every other week, they are tested on how well they are assimilating the doctrine.
From my perspective, I think my students are better prepared after the first seven-week minimester than they were at the half-way point of the semester in years past. But they are better prepared in the sense that we have focused more narrowly on basic doctrine and made sure that they are grasping that doctrine. What is lost are the free-flowing discussions of the consequences of legal doctrines that in my mind has always been the stuff of lawyering.
Hopefully we'll have more time to work on that stuff in the second minimester.
Monday, September 30, 2013
My student, Sam Henderson (who blogs here), alerted me to this cartoon which references the Paradox of the Court, of which I was previously unaware. We have a summary here from Joshua J. Mark on the Ancient History Encyclopedia. Here are the basics:
The Sophist Protagoras (pictured at left with his homie, Democritus) offered to teach a young man, Euthalos (or Euathlus), to argue in court. Departing from the Sophists' custom of demanding pay for sharing their wisdom, Protagoras offered the lessons for free, allowing Euthalos to pay him once he won his first case. Protagoras taught Euthalos, but Euthalos escaped indebtedness by avoiding taking any cases. Protagoras got fed up and sued Euthalos for his fee, but Euthalos claimed that either way the case came out, he still would not have to pay. If the court found in Euthalos' favor, the original agreement was unenforceable, and if it found in Protagoras's favor, Euthalos still would not have to pay because he still would not have won a case.
Sam was curious how a modern court would rule, and I think there is no answer that is clearly correct, and that's why it's such a great paradox. I think a court could reach different conclusions depending on how it ruled on implied terms and Euthalos's good faith (or lack thereof). Leaving aside the possibility that Euthalos could hire a Sophist to represent him and avoid any possible debt, I have a few takes:
1. A court could find that the parties assumed that Euthalos would pursue a career in the law and that such a career would entail arguing in court. If that was a reasonable implied term, Euthalos might have accepted Protagoras's lessons in bad faith (if he never intended to argue a case) and should have to pay the value of the lessons either as a matter of contract or in quantum meruit.
2. But perhaps it is not reasonable to imply the term. Is it really the case that all who are trained in the law practice? Some data on industry custom would be useful here. We in the legal eduaction business have been saying for years that job placement data can be misleading because not all who attend law school do so in order to practice law. Moreover, it may be arguable that a student of even the great Protagoras may never win a case. And so, even if both parties expected that one day Euthalos would have to pay for the lessons, Protagoras was assuming some risk.
3. Or perhaps Euthalos did not act in bad faith. Perhaps he entered into the agreement expecting to have a fabulous career as an advocate. He had agreed to study with Protagoras in the hopes of overcoming a speech impediment, but he found that trying to speak with pebbles in his mouth (Protagoras's proposed cure) only triggered his gag reflex. As a result, after completing his studies with Protagoras, Euthalos felt that he had learned nothing of value and owed Protagoras nothing. Protagoras should have thought twice before making an offer that could take the form: "You'll win a case or you don't have to pay!" Protagoras should have taken some lessons from Pufferitus.
4. Or a court could find in Euthalos's favor by finding against him as the paradox suggests. The court could rule that Euthalos will owe Protagoras his fee as soon as Euthalos wins a case, and as he has not yet done so, Euthalos need pay nothing for now. Of course, all of this turns on what one means by "winning" a case. If Protagoras seeks only a declaration that the parties have a contract, he loses by winning. If Protagoras seeks money damages, he wins by losing.
Thursday, September 26, 2013
Breaking Bad, I just thought I would never again have anything to which I could look foward. I did just turn 50, so there is AARP membership and a colonoscopy, but I thought there would be nothing in my future that I would anticipate enjoying.
But then came this in today's New York Times. Vince Gilligan, the creator of Breaking Bad just sigend an agreement for a new show on CBS. The timing of the announcement speaks well of both Mr. Gilligan and CBS, capitalizing on the current fan feeding frenzy surrounding the end of the series. But the fact that CBS is belatedly pouncing on a Gilligan script originally offered to CBS ten years ago speaks less well of that party to the deal.
Mr. Gilligan has an exclusive deal with Sony Pictures Television, which negotiated for him an unsual deal in which CBS agreed up front to air 13 episodes of Mr. Gilligan's series, Battle Creek. There's a lot of money involved, but who cares? If Battle Creek is anything like Breaking Bad, I will forgive CBS for not airing a single show that I have wanted to watch in the last 25 years.
Or am I forgetting something? Has CBS had any good comedies or dramas in prime time?
Monday, September 23, 2013
I get to teach Raffles v. Wichelhaus today, which is always a pleasure, as it is one of my favorite cases. I am not alone. One of my students, Justin Vining, was inspired by the case to make a representation of the case in the painting below:
I afraid my photo of the painting does not do it justice (because I have it under glass), but I hope you can see that Justin has captured the ship's voyage from India to Liverpool, and he has used as his model for the ship, the image of a ship called Peerless (right) that often accompanies the case, even though (I recently learned) that the Peerless in the picture is neither the October Peerless or the December Peerless featured in the case. But I actually love the fact that there were (at least) three ships called Peerless. That's what makes this case such a truth-is-stranger-than-fiction bonanza.
Friday, September 20, 2013
As I've mentioned before, my final exams in contracts are part multiple choice and part essay. I feel a bit guilty about multiple choice questions, but since the bar exam includes multiple choice questions on contracts, students really do need practice on those. There is thus no reason for me to feel guilty unless I feel guilty because I am preparing students to take the bar exam rather than preparing them to be lawyers or teaching them the law of contracts.
Because we are doing more interim assessments these days and because I have 140 students in two sections of contracts, I have also been giving multiple choice quizzes throughout the course. I am getting fairly practiced at writing multiple choice questions that work.
I have two criteria by which I judge whether or not a multiple choice question works. First, with respect to at least 90% of the questions, I would like the correct answer to also be the most popular answer. Since I order my questions from easiest to hardest, I am not too troubled if the last few are so hard that only the strongest students can get them. But on the whole, if too many of the questions are that hard, I worry that the distinction between a student who knows the material fairly well and a student who doesn't know the material at all might be too hard to discern. Second, with respect to every question, the strongest students (top quartile) must do better than the weakest students (bottom quartile). If that is not the case, I either worry that I have created a trap that somehow captures the wary but not the unwary or that again random guessing plays too great a role in explaining the result. In any case, the question must be tweaked or retired.
But a failed multiple choice question is really a question that needed to be used as an essay instead. Multiple choice questions fail because there is not one, right answer. There may be an ambiguity in the fact pattern that could lead to differing reasonable conclusions or there might be a hidden issue in the fact pattern that students could follow down an alternative path. I just finished going over with my students a practice multiple-choice exam that included failed questions culled from past exams. I think such questions are a good way to work on both the skills needed to do well on multiple-choice exams and the skills needed to do well on essay exams.
I would call on one student for each question, and that student had to give me a defense of her answer. We then voted by clicker and discussed whey the reasons one could give in defense of the popular answers. Some answers that got some clicker votes were clearly wrong -- e.g. applying UCC rules to a service contract, but sometimes students could come up with good reasons for their choices (even if those choices were not the one I was hoping for) that would garner a lot of points on an exam designed to measure abilities to spot issues and engage in legal reasoning.
Wednesday, September 11, 2013
In many law schools, faculty offices are in a separate part of the law building from class room space and other common spaces that students habitually occupy. In my law school. classrooms are on the first floor; faculty offices are on the second floor. Students -- especially 1Ls -- have a hard time breaking through the ceiling and asking faculty members for help outside of class time. I think part of the problem is that, for some students, the second floor is a strange and alien place. We try to be welcoming, but when students see strange adults rushing about purposefully upstairs, students may feel like they are in the way.
I am doing two things differently this year that have tremendously increased the quantity and quality of my out-of-class interactions with my students. We are now in the fourth week of our seven-week mimimester, about which I have written previously, here, here and here. This week, I am giving the second of three in-class quizzes that will account cumulatively for 20% of my students' grades. After the results of the first quiz, students are taking this very seriously, and many of them are coming to see me to make certain that they grasp the material. So part of the increase in out-of-class interactions with my students is a product of the frequent assessments.
I attribute the other part of the increase to my new habit of eating in our law school cafeteria (pictured) three days a week. I told students that I will be there around noon on Tuesdays, Thursdays and Fridays. I am available to them to talk about contracts, if that is what they want to do, but I am also there just to hang out and get to know them. I used to meet with my first-year students for lunch in small groups. That way, I was assured at least one out-of-class encounter with each student, and I also got to introduce the students to some of the local eateries that they might not discover on their own. But most students did not follow up on the interaction, and some of the lunches were awkward, because not every student is as thrilled by the prospect of lunch with a professor as I would have been. Sometimes it was hard to get a conversation going or a few students dominated the conversation while others sat silently and stared at their food.
But I think my being in their space works a lot better. Students come to me on their terms. Everyone understands that it is a setting in which people come and go. Students pull up a chair, join in a conversation, and take off whenever they need or want to. Sometimes I still eat alone, and that's fine. I have an iPad. The rhythm follows the rhythm of the minimester. When an assessment is imminent, I am surrounded by students. In its wake, I say hi to my students, and they barely look up from their legal research assignment, or whatever other book they have their noses in. Unlike me, they cannot relax between contracts quizzes.
Thursday, September 5, 2013
University of Utah Law Prof Debora Threedy (left) has introduced us to a new resource for first year Contracts classes. The Center for Innovation in Legal Education at the University of Utah has produced 37 online videos dealing with topics from the Restatement of Contracts 2d.
The goal of this project is to reduce the amount of in-class time spent on conveying doctrine so that more time can be devoted to active learning activities, such as group exercises or skills development. The Utah crew aimed to have short videos ready for viewing one week ahead of the class session during which that material was covered. The students could watch the videos, which were usually less than ten minutes long, and then come to class with a working knowledge of the concepts covered in the next class session. The ultimate goal is to reduce the amount of in-class time spent on conveying doctrine so that more time can be devoted to active learning activities, such as group exercises or skills development.
Professor Threedy's colleague, Aaron Dewald (right), has blogged about the University of Utah's experience with the videos, which you can read here. Here is his bullet-point summary of student survey responses to the project:
Of the 101 students that took the class, 69 of them responded to the survey. They were split virtually even with 34 females and 35 males replying. Here are some very interesting results that came out of the survey:
Regarding video questions
- Roughly 97% of respondents agreed or strongly agreed that the modules made the Restatement content easy to understand.
- 10% of respondents agreed or strongly agreed that the length (8:30 on average) was too long. 40% were neutral. This answered our hypothesis that most students would be ok with a length lower than 10 minutes. A few students noted in their qualitative feedback that some of them were too long.
- Students were mostly neutral (37%) or agreed (36.2%) when we asked if there was desire to have a way to clarify questions after watching the module. We asked this in anticipation of a message board or discussion forum or something. This conflicts a little bit with a more direct question later.
Module use in class
- Students typically watched the modules before class time (49%). Unfortunately, due to unforeseen scheduling (one professor was ahead of the other), the modules were sometimes released very closely to class, if not after.
- The previous point was supported by the fact that nearly 85% of the students reported wanting more time with the modules prior to class.
- Students also reported using the modules as a review after class (70%)
- Not surprisingly, 42% of the students agreed or strongly agreed that they would rather watch the videos than read about the restatements. 29% were neutral.
- 50% of the students agreed or strongly agreed that the videos allowed them to pay better attention in class. 31% were neutral. We were very satisfied with this response, because it speaks to the idea that moving the non-interactive content outside of the classroom can facilitate a better learning experience in the classroom.
- Nearly 60% of the students wish they had a way to assess their knowledge after watching the videos. This question was asked in anticipation of administering the videos with a formative assessment to allow students some idea of their comprehension.
- Interestingly, over half of the students reported that they wouldn’t have used an online discussion board to talk about the content in the videos.
- Several questions asked the students if they used the videos as asubstitute for outlines or note taking in class, overwhelmingly the students replied. “No.”
- Finally, students would choose a class that implemented videos over one that does not (85%)
There were a few common threads through all of these:
- Contrary to what multimedia theory says, the students wanted me to read the text of the restatements. They hated the silent time I gave them to read to themselves. Confused? There’s a multimedia principle called the Redundancy principle. Basically, it says that if you have a bunch of text on a screen, and you read it to the viewer, they spend more cognitive energy reconciling what you’re reading out loud to what’s printed on screen. The unfortunate side effect is they aren’t reading to comprehend, they’re reading to reconcile.This was probably the most surprising to me… and I’m willing to admit that I was wrong. Just proof that what is proved in a “lab” may not be the best thing in real life. If you’re interested in reading more about it, you can pick up the book on Amazon. I think anyone who uses technology to create learning environments, especially multimedia ones like videos, animations, or the like, should understand the principles in this book.
- As stated in the survey, many wanted them far ahead of time. This was strongly emphasized in the feedback. Having already made the videos and a better understanding of their use, etc… this shouldn’t be an issue for future iterations, but this is something to keep in mind if we want to do new courses in the future. We definitely need more lead time.
- A funny one: Students were tired of “widgets”. A few feedback statements and some verbal feedback (given to me in Torts class) told me they wanted real examples and not theoretical “widgets” as part of the examples. There must be something too theoretical about a widget… something lacking in their prior knowledge. Next time, we’ll use something like iPhones or paintbrushes. Maybe we can make some money with product placement! Just kidding…
- The students really, really liked the videos, and found them extremely helpful. They noticed towards the end of the semester when we were a little rushed to get them all out… but I thought we still stayed on a pretty good release schedule considering the amount of time that went into them.
- Captioning or script availability – this is a feature on YouTube and might just need to be mentioned in class.
Tuesday, September 3, 2013
As I have discussed in previous posts here and here, I am for the first time teaching two, two-credit, seven week courses, called Contracts I and Contracts II. Part of the point of the minimester system (and of our curricular reform generally at Valparaiso University Law School) is to provide students with more frequent assessments so that they know through the term how well they are understanding the material and do not have to go into a final exam with no sense of what the outcome is likely to be.
Frequent assessments also provide throughout the term also help law professors integrate assessments into the learning process. We go over the assessments in class, and alarmed students are encouraged to talk though their difficulties with the material. Early assessments also helps us to identify students who need to be considered for our Academic Success Program.
But that is where anonymous grading comes in. I am all in favor of anonymous grading, but not for the reasons I think students usually favor anonymous grading. I think students want to be graded anonymously because they fear that faculty members will punish troublesome students with bad grades. That may indeed occur, but I favor blind grading because I would find it very hard to give very low grades if I knew who was receiving them. And the last thing I want to do is give a D or an F to a student with whom I have had some sort of conflict (e.g., see picture). It would be much easier to give such a student a higher grade in the hopes that she and I will never again cross paths.
The challenge I now face is negotiate the need to preserve anonymity while maximizing the effectiveness of assessment as a teaching tool. The problem is not acute for now, since, as I mentioned in an earlier post, because I have 140 contracts students this semester, all of my graded assessments during the minimester will be multiple choice. Since there is no danger of my bias affecting the grade of any particular student when the quizzes are graded by scantron, I am having the students use their real names on the quizzes. That way, I can track how they are doing and call them in for talks if I think they are in real danger. When they come to talk to me on their own, they will not be giving away any information (such as their exam numbers) that might influence how I grade final exams. I don't know what I would do if I had to grade written work. If I could not sit down with students and discuss their written work, the benefits of the assessment as a teaching would be greatly reduced.
I welcome suggestions as to how to achieve the goals of early assessment while protecting students' anonymity.
|1||4018||Multimodal Bill of Lading: The Problem of Party Liability
Nadezda Alexandrovna Butakova,
Russian Presidential Academy of National Economy and Public Administration (RANEPA)
|2||86||'Sticky' Arbitration Clauses?: The Use of Arbitration Clauses after Concepcion and Amex
Christopher R. Drahozal, Peter B. Rutledge,
University of Georgia - School of Law, University of Kansas School of Law
|3||75||Improving Contract Quality: Modularity, Technology, and Innovation in Contract Design
George G. Triantis,
Stanford University - Law School
Howard M. Wasserman, Dan Markel, Michael McCann,
Florida State University College of Law, University of New Hampshire School of Law, Florida International University (FIU) - College of Law
Gus De Franco, Florin P. Vasvari, Regina Wittenberg Moerman, Dushyantkumar Vyas,
University of Toronto - Rotman School of Management, London Business School, University of Toronto - Rotman School of Management, University of Chicago - Booth School of Business
|6||67||Duties of Love and Self-Perfection: Moses Mendelssohn's Theory of Contract
McGill University - Faculty of Law
|7||65||The Law and Economics of Norms
Juliet P. Kostritsky,
Case Western Reserve University School of Law
|8||61||A Theory of Contract Formation
School of Law, University of South Australia
|9||57||Carve-Outs and Contractual Procedure
Erin A. O'Hara O'Connor, Christopher R. Drahozal,
Vanderbilt University - Law School, University of Kansas School of Law
|10||50||'Frustration' in the Court of Appeal
Victoria University of Wellington - Faculty of Law
Thursday, August 29, 2013
As I mentioned before here and here, we at the Valparaiso University Law School have divided our semesters into two, seven-week minimesters. This change does not affect every course, but it does affect every first-year course. The minimester system gives us greater flexibility in our curriculum, and we have experimented quite a bit this year. Civil Procedure is now taught in the first and the last minimesters, Torts and Criminal Law are taught in the second and third minimesters, Constitutional Law has been moved to the second year to make room a new, two-credit Damages and Equity course, as well as two new courses, Foundations and Praxis.
One advantage of the minimesters is that our students get a meaningful sense of where they stand relative to their peers after just seven weeks of law school. In addition, faculty members are encouraged to give students frequent assessments throughout the minimester. In my contracts course (you can check out my syllabus on the court LibGuide), students have their first assessment this week. It is just a short multiple choice exam, but it gives them a taste of the sort of multiple choice questions they will face on the bar exam.
My assessments this year will all be multiple choice,* which is far from optimal, but that is because I have 140 students in two sections this year, and I cannot grade that many essay exams or other forms of written exercises in a timely way for so many students (unless I were to give up blogging, and that's not happening!). But I am supplementing these graded assessments with non-graded assignments that we go over in class and which students are encouraged to discuss with me one-on-one during office hours. In order to encourage them to do so, I am having lunch in our school cafeteria three days a week. I am hoping that conversations about contracts, the law and life in general will ensue in the normal course of things.
The jury is still out of course and will remain out until I receive the anonymous student evaluations, but there is a marked up-tick in the number of students who are coming to ask me substantive questions during my office hours. We are only in the second week of the minisemester, so usually at this point all I get is the occasional social call by a student who wants to make a personal, one-on-one introduction (which is a great idea), but this year students are coming to show my their case briefs and to make sure they are getting the concepts.
This is how I always imagined teaching would be, but over the past few years, student traffic to my office had declined radically, until I started thinking of "office hours" as the hours of largely uninterrupted time when I get work done in my office or meet informally with colleagues. I think my students' increased diligence is also explained in part by the fact that we now have a Foundations course in which students focus on the basic skills they need to develop in order to survive in law school and succeed as attorneys. We are engaging in a bit of libertarian paternalism and nudging our students in the direction we want them to take. And that direction leads to my office door (or my table in the cafe).
*I add the following clarification -- my assessments during the minimester are multiple choice. There is still an essay component to the final exam.
Wednesday, August 21, 2013
This is the third in a series of posts in our online symposium on the Contracts Scholarship of Stewart Macaulay. More about the online symposium can be found here. More information about this week's guest bloggers can be found here.
Kate O'Neill's is Professor of Law at the University of Washington School of Law. Her principal interests are contracts, copyright, legal rhetoric, and law school teaching.
These essays present enlightening, provocative, and well-written analyses of relational contract theory, contract doctrine, legal practice, and social justice. The editors have sequenced and grouped them skillfully so that the reader can clearly see how the authors’ ideas intersect and diverge. As a result, the collection is more than its parts.
I want to draw readers’ attention to a problem the collection suggests but doesn’t address directly. What are we going to do about the contracts course in law school?
Several essays suggest, and Robert Scott’s expressly argues for, an emerging consensus that Macaulay’s original insights remain valid and are foundational for both law & economics and law & society theorists and that these warring camps may have more in common than either has yet recognized. If Scott and Macaulay are right, then I would wager that most contract courses not only fail to reflect the consensus but camouflage its most promising lessons.
The consensus seems to include two major points of agreement. First, unmessy doctrine can be handy (“Messy,” of course, was Macaulay’s description of much contract doctrine). Some “sophisticated” contracting parties should be able to make binding commitments on precisely the terms that they negotiate and, in case of dispute, they should be able to limit a judge’s interpretative discretion to alter their allocations of risk. In particular, they should be able to preclude the judge from resorting to “context” to alter the (presumably) plain meaning of the terms.
Second, consumers and employees should not necessarily be bound by all of the commitments purportedly imposed upon them by adhesion documents. Here, we can see fruit borne from Macaulay’s distinction between the real deal and the paper deal. Terms that are reasonable, typical, or expected are part of the deal; terms that are not are not. The expected nature of the relationship dictates the real contract terms; the paper contract terms do not necessarily govern the relationship. We are freed from the mutually exclusive and entirely fictional alternatives that either a contract was formed on the paper terms or it was not formed at all.
On the other hand, the collection makes clear that a fundamental policy issue remains contested especially in the consumer context – how much contract law should intervene in the market. The familiar alternatives are reflected: 1) let the market discipline bad actors even if there are a few casualties before the market works its magic because there is no agency more capable than the market in determining best (read, efficient?) practices; 2) let judges intervene to strike down bad terms – especially those that limit access to courts and class actions – because doing so will hasten market discipline of bad actors and will also relieve hardship in at least a few cases; or 3) regulate certain kinds of terms out of existence.
All the authors think that empirical data could help resolve the policy dispute. Edward Rubin, in particular, suggests that we think of contract law as a management tool. If we were to focus on whether the tool works well to achieve whatever objectives we set, then the legal system could essentially be taught to treat empirical evidence as intrinsic to the development of law. This is encouraging stuff. A systemic devotion to empiricism within the legal system might enable us, and the body politic, to clarify debates about what laws are fair and efficacious.
So far, so good, but here is the question that keeps troubling me. If we all are relationists and empiricists now, and we could use data to make contracting law and practice both fairer and more efficient (or whatever other goals we might conceivably agree upon), what and how we should teach law students?
Macaulay has taught us that contract law has relatively little explanatory power for many of the actual practices involved in the formation, performance, and modification of exchanges, or even the practices involved in resolving disputes. Serious attention to the nature of exchange relationships makes it hard to characterize contract law as unified, coherent and consistent or if it is unified theoretically, the unity operates at such a high level of abstraction that will matter little to judges or practitioners.
We praise these and other insights from empiricism both for what they tell us about law and society now and what they might teach us about alternatives. Yet most lawyers and judges plod on, oblivious or dismissive. Are we in part responsible? Look at our casebooks, listen to our classroom discussions! Traditional doctrinal analysis is alive, well, and I suspect dominant. Economic analysis “lite” has crept in, but attention to empirical methods, much less data on context or consequences, is scant. I suspect that even those of us who assign “law & society” contracts casebooks, like the ones edited by Macaulay and Deborah Post, still devote the bulk of class time to doctrinal analysis.
Perhaps this must be. Perhaps doctrinal analysis is our discipline’s unique identifier and must be taught first because it is foundational; perhaps we need to train litigators to understand the elements of a claim for breach; perhaps there is some utility in using the same basic case method in all 1L courses; or perhaps we are simply boxed in by student expectations, bar examiners, tradition, or confusion about what else to do?
Although there certainly are barriers to changing what and how we teach, I wonder if the core problem is that the work that needs to be done is profoundly interdisciplinary, challenging, and time-consuming. Many of us lack the skills to do it alone, and the scholarship, promotion standards, and instructional traditions at many law schools still make collaborations difficult.
Contracts teachers may alert law students to Macaulay’s insights, but I don’t think we give students sufficient tools to help clients and or work effectively on big systemic problems. Stewart might say that’s because we kinda like the mess the way it is.
[Posted, on Kate O'Neill's behalf, by JT]