ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Sunday, December 13, 2015

Contracts as a Gateway to Transactional Skills

Back in October, the New York Court of Appeals decided in principle that candidates for the bar must demonstrate that they have acquired legal skills (as opposed to just the legal knowledge traditionally tested on the bar exam). Our sister blog, Legal Skills Prof Blog, summarizes here some of the options being considered by the court's task force on the all-important question of how to implement such a skills requirement. The activity in New York is, in many respects, a supersized or advanced version of curricular rule changes adopted by the ABA. 

Contract1This curricular movement is, I believe, an opportunity for those who teach Contracts. Skills taught in law school have traditionally had a substantial bent towards litigation, a bent that is unsurprising in a curriculum dominated by the case method. Even inroads by our friends in alternative dispute resolution still deal with skills applied after a dispute has arisen between parties.  When we teach Contracts principally through appellate opinions, we follow the same after-the-fact approach toward doctrine. It doesn't have to be that way. The subject of Contracts is inherently a matter of transactional importance that should be our students' gateway to transactional thinking. By transactional, I mean an emphasis on "before the fact" lawyering where the goal is to prevent a dispute from occurring in the first place. In an era of greater focus on the acquisition of legal-practice skills, Contracts is the place where we have the possibility early on to ensure to skills include a focus on dispute prevention, not just dispute cure.

Transactional thinking is not inherently built-in to the case method and thus likely requires the introduction of skills exercises alongside traditional pedagogical approaches. More resources than ever are available now to enable us to make Contracts a gateway to transactional thinking, fortunately. Implementing such a shift still requires substantial work, however, but the change is one that is in our students' best interests if we can do it well. 

https://lawprofessors.typepad.com/contractsprof_blog/2015/12/contracts-as-a-gateway-to-transactional-skills.html

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Comments

In the interests of helping newer contracts professors "make Contracts a gateway to transactional thinking," perhaps you'd share some of the exercises that you do in Contracts so that we can shamelessly steal them?

Posted by: Matthew Bruckner | Dec 14, 2015 6:49:00 AM

Count me among the "new" in this area, Matthew, and keep watching this space. A major project of mine in the spring semester is to integrate transactionally-oriented experiences from teaching Contract Drafting into the doctrinal Contracts course. I'll be reporting from time to time how that is going and, hopefully over the long run, have some items worth stealing. There may be some flops along the way, as well.

Posted by: Mark Edwin Burge | Dec 14, 2015 9:23:06 AM

While I agree completely with the the main thrust of your point, I disagree that “transactional” means preventing disputes from occurring in the first place. That may well be a consequence of good transactional lawyering, but as I’ve written on numerous occasions, the ability of human beings to be opportunistic even about the meaning of language they agreed to in the past limits our ability to “prevent” disputes except in the most obvious (or trivial) cases. Transactional lawyering is a complex skill that encompasses seeing transactions through a legal lens, supplying linguistic structure that gives the parties confidence to proceed, identifying hidden possibilities for disagreement (the “preventing” part), and either resolving them or assessing the risk of not resolving them.

I know you didn’t mean this, but lawyers who view themselves primarily in the business of preventing future disputes also tend, I think, to earn the “all you can say is ‘no’” reputation.

Posted by: Jeff Lipshaw | Dec 14, 2015 2:44:42 PM

Thanks for the thoughtful comment, Jeff. I certainly did not mean to oversimplify the point by the emphasis on dispute prevention. The larger issue for transactional lawyering (and this may be what I should have said) is that it is forward-thinking and forward-looking. In that sense, thinking like a transactional lawyer is unlike the rear-view mirror approach that the case method sometimes fosters. Your work on human opportunism and shifting meaning gets it fundamentally right on the way people actually act. Thus, a good transactional lawyer could take account of opportunistic tendencies, fail to prevent a dispute, but still have done an outstanding job of preparing his or her client for the future. A binary contrast between conflict (as litigation) and building (as transactional work) is not an accurate way to view the world of practice. Lawyering as forward-thinking is probably the better paradigm.

Posted by: Mark Edwin Burge | Dec 14, 2015 4:12:20 PM

I like "forward-looking". We deal in risk and uncertainty about the future (and create models to ameliorate both) versus translating past narratives into legal consequences.

Posted by: Jeff Lipshaw | Dec 15, 2015 3:46:44 AM

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