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]
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.
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.
Tuesday, June 4, 2013
Legal education is being transformed before our eyes. In part, this transformation has been so gradual that it has gone unappreciated. I routinely read critiques of legal education that seem to be based on the assumption that we all still teach like Professor Kingsfield. I know of very few people who still use that sort of strict Socratic method. Most doctrinal law teachers that I know teach through a mix of soft Socratic method, lecture, problems and discussion. But a great deal of the curriculum at most law schools is now dedicated to skills training, externships, co-curricular activities (moot court competitions, trial advocacy, journals, etc.) and of course clinics.
In the face of blistering criticism of legal education, law schools have been striving to demonstrate a commitment to reform, often by bolstering, highlighting or simply re-packaging existing programs. But to the extent that real change is occurring, it is often based on our intuitions about what ought to work for our students rather than on actual evidence of what works. As Holmes tells Watson, “It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.” But the partnership that produced Teaching to Every Student: Explicitly Integrating Skills and Theory into the Contracts Class bridges the gap between theory and facts. Deborah Zalesne is a contracts scholar at CUNY law and David Nadvorney is the director of academic support programs at CUNY. They have worked together for years to make certain that their pedagogical strategies actually work for their students
Introducing new approaches to the legal curriculum involves teaching old dogs new tricks, because law schools have to work with the faculties they’ve got. I consider myself a moderately old dog. I cannot easily abandon my doctrinal/theoretical approach to focus in my doctrinal courses on skills training and bar preparation. I need guidance to help me work on my approach. Nadvorney and Zalesne provide such guidance for contracts profs in Teaching to Every Student. The book is slim and affordable (under $30 on Amazon), and I think its approach is unique – or at least highly unusual – in that the authors insist on incorporating theoretical perspectives while also highlighting their very practical, skills-based approach to teaching first-year contracts.
Their approach to teaching contracts focuses on three areas of training: academic training, which includes everything from case briefing to exam preparation; legal reasoning, which includes the traditional skills set that enables students to learn how to issue spot and apply rules to unique factual situations; and theoretical perspectives, which encompasses learning theory, identifying and critiquing theoretical approaches, and integrating such approaches into advocacy.
The book can be a wonderful supplement to any casebook (or whatever other materials one chooses to use). It comes complete with in-depth sections on each of the three areas of training mentioned above, exercises, sample syllabi and some edited cases.
Even if one chooses not to adopt the book, I recommend it to law professors interested in looking for new stimuli that will enable them to shake up their approaches to teaching
Thursday, May 9, 2013
For many lawyers, To Kill a Mockingbird (TKAM) is at the top of their list of "favorite books/movies about a lawyer." TKAM is about more than lawyering, of course. It's about racism, family, class and much more. This week, TKAM also is about "fraudulent inducement," "consideration" (a lack thereof) and "fiduciary duty." All of those subjects are in the complaint filed by TKAM author, (Nelle) Harper Lee, against her purported literary agent.
In the suit, Lee alleges that Samuel L. Pinkus (and a few other defendants) fraudulently induced her to sign her TKAM rights over to one of Pinkus's companies in 2007 and again in 2011. According to Lee, Pinkus, the son-in-law of Lee's longtime agent, Eugene Winick, transferred many of Winick's clients to himself when Winick fell ill in 2006. Pinkus then allegedly misappropriated royalties and failed to promote Lee's copyright in the U.S. and abroad.
For Contracts professors, the Lee v. Pinkus suit provides some interesting hypos to discuss when teaching fraud, consideration, and assignments of rights. Regarding fraud, Lee alleges that Pinkus lied to her about what she was signing at a time when she was particularly vulnerable due to a recent stroke and declining eyesight. Consideration is in play because there allegedly was no consideration from Pinkus to Lee in exchange for Lee's transfer of rights to Pinkus. Assignment issues arose because the many companies who owed Lee royalties reportedly struggled to figure out which company or companies they should pay given Pinkus's many shell companies. Overall, it's a sad story for Ms. Lee but one that students may find particularly engaging.
[Heidi R. Anderson]
p.s. Although there are many quote-worthy passages in TKAM, a favorite of mine (useful when advising students about their writing) is: “Atticus told me to delete the adjectives and I'd have the facts.” Please feel free to share your favorites in the comments.
Friday, May 3, 2013
So, here's an interesting problem I'm facing. I taught sales for the first time this semester. I would say I devoted about 2/3 of class time to going over problems. In order to maximize active learning, I had the students hand in written answers to three of the problems each week, and that homework counted cumulatively for 40% of the grade).
My students were amazingly diligent, often looking up cases referenced in the questions and reading through the comments to Article 2 of the UCC. I don't know what all the students thought about the assessment system, but a few have told me that they appreciated the fact that they had no choice but to keep up with the material, even if answering the questions was time-consuming and often frustrating because of either ambiguities in the Code or tensions between the Code and the caselaw.
But here's the problem. I wasn't born yesterday. Now that there has been a group of students that has taken the course with me, their notes, including their answers to the homework problems, will circulate. I think it is unrealistic to expect students (especially 3Ls) to refrain from consulting such excellent authority when answering the questions. Unfortunately, the mystic chords of memory will swell when touched not by the better angels of our nature (as represented at left), but by a consultation with last year's students' answers, leading to idle minds with which devils (represented at right) are just as happy to play as with idle hands.
So how can I re-create this year's experience without coming up with my own original questions every time I teach the course?
Any suggestions -- from any perspective: law prof, student, interested practitioner -- would be most welcome.
Wednesday, May 1, 2013
We previously blogged about high-profile reward offers by Donald Trump, Bill Maher, a laptop-seeking music producer, and a Hong Kong businessman. Only one of those (the producer) led to an actual lawsuit. The latest reward offer in the news involves murder.
In February of this year, the City of Los Angeles and other entities collectively offered a $1 million reward for information regarding Chris Dorner. Dorner was the former policeman and Navy officer who (allegedly) killed four people, including two policemen. The manhunt for Dorner, labeled the "Cop Killer," reportedly was one of the largest in LA County's history.
One of the people claiming the reward, Rick Heltebrake, has filed a breach of contract suit in LA Superior Court (the complaint can be obtained here but only for a fee). Heltebrake is suing the City of Los Angeles, and supporting entities for $1 million and is suing three cities that offered separate $100,000 rewards related to Dorner. Heltebrake was a carjacking victim of Dorner's. After he escaped, Heltebrake called the police and told them where they could find Dorner. Because Dorner was found at the location Heltebrake identified, he is seeking the rewards.
The contract controversy is one of interpretation. The rewards reportedly were available for "information leading to the apprehension and capture of" Dorner, for the "identification and apprehension" of Dorner, for the "capture and conviction" of Dorner, and for "information leading to the arrest and conviction of" Dorner (I do not have the complaint so these excerpts are cobbled together from TMZ, Courthouse News Service, ABC and other sources). Police charged Dorner on February 11, 2013. Heltebrake called police on February 12. On February 25, after a shootout with police and structure fire, Dorner was found dead from an apparently self-inflicted gunshot wound.
Given the above facts, some of the intepretations questions are: (i) whether the authorities' shootout and recovery of Dorner's body qualifies as "apprehension" or "arrest," (ii) whether the "and" between "identification and arrest" or between "capture and conviction" means that both are required in order to collect, and many, many more. A complicating factor is that the $1 million reward was merely announced on TV; no written record was made. At least one reward offeror, the City of Riverside, has stated that the lack of a "conviction" means that it won't pay. Although this is a tragic story, I may mention it the next time I teach the Carbolic Smoke Ball case.
If anyone is able to find the complaint for free, please post a link in the comments.
[Heidi R. Anderson]
Thursday, April 25, 2013
It's the end of the semester which means that I'm finally covering third parties. One of my favorite (and pretty simple) cases in this unit is Rumbin v. Utical Mutual Insurance, Co. Mr. Rumbin, who had settled a personal injury case, was due regular payments under an annuity purchased by Utica and issued by Safeco. When he faced foreclosure and other financial hardships, Rumbin sought a declaratory judgment approving his assignment of rights to J.G. Wentworth. After a student recites the facts, I often pause the class to ask, "How many of you have heard of Mr. Wentworth before?" Usually, about half of my class has heard of him while the other half is thinking, "J.G. who?" For those who haven't heard of him, I offer this clip, which sums up Mr. Rumbin's situation rather nicely and features Mr. Wentworth himself at the end as the conductor:
If you watch and later find a way to get the "877-CASH-NOW" earworm out of your head, please let me know. I've been stuck with it for nearly 24 hours now.
[Heidi R. Anderson]
Monday, April 22, 2013
A lot of very smart contracts scholars, including to name just a few, Omri Ben-Shahar and Lisa Bernstein (here), Victor Goldberg (here), and Peter Siegelman and Steve Thel (e.g., here), have thought long and hard about the seeming conflict between UCC § 2-713 and the general principles of damages set out in UCC § 1-305 (formerly § 1-106). Most of them support the ruling in Tongish v. Thomas, to which I have just been introduced in teaching Sales for the first time this semester. I am uncomfortable with the decision for two reasons, which I will set out below.
But first, a brief summary of the case: Tongish agreed to sell his sunflower seeds to the Decatur Coop Association (the Coop) for a fixed price. The Coop had a deal with Bambino Bean & Seed, Inc. (Bambino) to sell the seeds to them for whatever price the Coop paid plus $0.55 per 100 pounds. The price of seeds went up and Tongish breached. The trial court awarded the Coop its lost profits, which came out to $455.51. The Court of Appeals vacted that award and remanded the case for a calculation of damages based on UCC § 2-713 (and the Kansas Supreme Court upheld that ruling). UCC § 2-713 allows a buyer to recover the difference between makret price at the time buyer learned of the breach and the contract price. Under this section, the Coop would recieve not $455 but something like over $5500, despite the fact that it would not have been able to charge Bambino anything more than what it paid Tongish for his seeds. In short, under the damages awarded by the appellate courts, the Coop gets about $5000 more than expectation damages.
I do not like the result, at least not based on the court's reasoning. Subsequent law review articles (cited above) provide more sophisticated defenses of § 2-713 based on economic theory. I cannot address those arguments here. Instead, I focus on two issues: fault and contract and the court's characterization of UCC § 2-713 as a "statutory liquidated damages provision."
First, the case is grist for the mill of Friend of the Blog, Steve Feldman, who has been trying unsuccessfully for years to persuade me that courts not only do consider moral fault in assessing damages but should do so. In Tongish, the Kansas Court of Appeals distinguished the case from a California case, Allied Canners Packers, Inc. v. Victor Packing Co. In Allied, the California court limited the buyer's remedy to actual loss. That case was different, says the Kansas court, because in Allied, the seller's crop had been destroyed and so it had no goods that it could deliver to buyer. Here, Tonigish breached simply becasue the price went up, and so "the nature of Tongish's breach was much different" from that in Allied, because the Kansas court found, "there was no valid reason" for Tongish's breach. Whether or not the court is right that there was no valid reason for the breach depends on one's views on the doctrine of efficient breach. More to the point, I find no language in the UCC that indicates that the measure of damages turns on the state of mind of the breaching party. That is, where in the UCC does it say that whether or not one can recover damages in excess of actual loss depends on whether the breach was innocent or willful?
The Kansas court then proceeds to an actual statutory analysis and notes the principle that a specific clause (in this case § 2-713, which the court reads to provide damages in excess of actual loss) trumps a general clause (§ 1-305, which limits damages to expectations). Allowing the specific clause to trump the general clause generally makes sense, but I would invoke another canon of contruction and read § 1-305 as articulating the general remedial scheme in light of which the remainder of the Code is to be read. Section 1-305 puts parties on notice that, unless they set out their own remedial schemes, though allocation of risk, liquidated damages and the like, they should expect that traditional expectation damages will be the most they can hope for in case of breach.
Read in that light, § 2-713 does nothing more than describe the usual mechanism for calculating expectation damages. It does not contemplate a contract such as the one at issue in Tongish in which the Coop, very far from demanding liquidated damages in the case of breach, has protected itself against loss by linking its purchase price from Tongish to its sale price to Bambino. In so doing, it invited the very sort of efficient breach in which Tongish engaged, and it is absurd for it to now to claim entitlement to (effectively) a disgorgement remedy when it failed to negotiate such a remedy at the time of contracting.
The Kansas court cites to Robert Scott's argument that limiting recovery to lost profits in such cases creates market instability by encouraging breach if the market fluctuates to the seller's advantage. Applying § 2-713 to permit recovery of damages in excess of actual loss, on the other hand, "encourages a more efficient market and discourages the breach of contracts," says the court. Once again, that determination turns on one's understanding of efficiency. In any case, to the extent that the circumstances in Tongish encouraged breach, they were entirely a product of the way the parties drew up their contracts. They in effect, allocated the risk of breach to the Coop, which had protected itself by finding a buyer who would accept any price so long as it was the same price as what the Coop had paid, plus a $0.55/100 lb. handling fee. To allow the Coop to recover cover costs on top of lost profits actually creates an incentive for sellers with contractual protections such as the Coop had, to encourage breaches, since the court allowed them recovery ten times in excess of their actual harm.
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.