ContractsProf Blog

Save the date!

 

Emory’s Center for Transactional Law and Practice is excited to announce the date for its seventh biennial conference on the teaching of transactional law and skills.  The conference will be held at Emory Law, on Friday, June 5, 2020, and Saturday, June 6, 2020.

 

More information will be forthcoming on the Call for Proposals, the Call for Nominations for the Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills, open registration, and travel accommodations.  We are looking forward to seeing all of you on June 5 and 6, 2020!

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (September 27, 2019)

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 29 Jul 2019 - 27 Sep 2019

Rank	Paper	Downloads
1.	Shining a Light on Dark Patterns Jamie Luguri and Lior Strahilevitz University of Chicago and University of Chicago Law School Date Posted: 07 Aug 2019 Last Revised: 07 Aug 2019	959
2.	Attention and the Law John M. Newman University of Miami - School of Law Date Posted: 23 Jul 2019 Last Revised: 29 Jul 2019	130
3.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 18 Sep 2019	85
4.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 25 Sep 2019	83
5.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	70
6.	Driven to Bankruptcy Pamela Foohey, Robert M. Lawless and Deborah Thorne Indiana University Maurer School of Law, University of Illinois College of Law and University of Idaho Date Posted: 19 Sep 2019 Last Revised: 20 Sep 2019	69
7.	The Failure of 'Notice and Consent' as Effective Consumer Policy James P. Nehf Indiana University Robert H. McKinney School of Law Date Posted: 23 Aug 2019 Last Revised: 23 Aug 2019	61
8.	Crisis Construction in Contract Boilerplate Emily Strauss Duke University School of Law Date Posted: 14 Sep 2019 Last Revised: 16 Sep 2019	60
9.	The Case for Formalism in Contract Law Adjudication Felipe Jiménez University of Southern California - USC Gould School of Law Date Posted: 31 Jul 2019 Last Revised: 25 Sep 2019	57
10.	Stickiness and Incomplete Contracts Julian Nyarko Stanford Law School Date Posted: 09 Sep 2019 Last Revised: 09 Sep 2019	56

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 29 Jul 2019 - 27 Sep 2019

Rank	Paper	Downloads
1.	Beach Money Exits Matthew Wansley Benjamin N. Cardozo School of Law Date Posted: 18 Aug 2019 Last Revised: 23 Aug 2019	112
2.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 18 Sep 2019	85
3.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 25 Sep 2019	83
4.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	70
5.	חישוב פיצויי ציפייה במיזמים עתירי סיכון Calculating Expectation Damages in Risk-Intensive Ventures Yotam Kaplan and Kobi Kastiel Bar-Ilan University - Faculty of Law and Tel Aviv University - Buchmann Faculty of Law Date Posted: 17 May 2018 Last Revised: 10 Sep 2019	62
6.	Court Review of the Decisions of the Australian Financial Complaints Authority and its Predecessors Ian Ramsay and Miranda Webster Melbourne Law School - University of Melbourne and University of Melbourne - Law School Date Posted: 12 Aug 2019 Last Revised: 12 Aug 2019	62
7.	The Failure of 'Notice and Consent' as Effective Consumer Policy James P. Nehf Indiana University Robert H. McKinney School of Law Date Posted: 23 Aug 2019 Last Revised: 23 Aug 2019	61
8.	Crisis Construction in Contract Boilerplate Emily Strauss Duke University School of Law Date Posted: 14 Sep 2019 Last Revised: 16 Sep 2019	60
9.	The Case for Formalism in Contract Law Adjudication Felipe Jiménez University of Southern California - USC Gould School of Law Date Posted: 31 Jul 2019 Last Revised: 25 Sep 2019	57
10.	Stickiness and Incomplete Contracts Julian Nyarko Stanford Law School Date Posted: 09 Sep 2019 Last Revised: 09 Sep 2019	56

 

Teaching Contract Law (and More) to Legal Masters Students - Part 4: Preferring Practical Reality

(Part 1 of this multi-part post is available here).

(Part 2 of this multi-part post is available here).

(Part 3 of this multi-part post is available here).

Adapted from Mark Edwin Burge, Access to Law or Access to Lawyers? Masters Programs in the Public Educational Mission of Law Schools., 74 U. Miami L. Rev. __ (forthcoming 2019), available here or at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3420457 (footnote numbering changed).

Course Design Principle #3: Prefer practical reality over theory.

While the principal of avoiding simulated law practice is rich in specifics, the admonition to “prefer practical reality” is at a high level of generality. Most legal academics will intuitively understand what it means, even those who involuntarily bristle at such advice. To be clear, the principle of focusing on operational legal reality is not a knock on legal theory, which has—and should have—a valued place in the education of future lawyers, and this is true whether we define theory as “a doctrinal theory explaining a case or series of cases, a school of jurisprudential thought, or a perspective on examining and understanding the law.”[1] A grounding in big-picture theoretical understanding of the law is part of the value added that lawyers bring to the table, whether that be the ability to develop a creative argument or to recognize policy tradeoffs inherent in taking a certain legal position. In these arenas and in applying broad-based theoretical knowledge, the attorney truly earns the appellation of counselor,[2] a title law faculty should aspire to develop thoroughly in their J.D. students.

Once again, however, the issue is that the purposes and aspirations of a legal masters student are not those of a future lawyer. The overarching goal is to be a legally-informed professional in career frequently adjacent to the law, such as risk management, contract management, and human resources. If we take career application seriously in a legal masters program as we should, then that means shifting course resources into practical reality. How might that look in practice? A legal masters course in the doctrinal law of contracts provides examples for applying the “prefer practical reality” principle, even though the practical differences will certainly vary among subjects.

A contracts course that is more focused on real-world application will tend to minimize time spent on offer and acceptance.[3] The question of what theoretically should or should not qualify as a contract is an interesting one, raising questions of the proper role of government in enforcing private agreements and of drawing the line between gratuitous promises and enforceable ones. In the vast majority of real-life commercial settings, however, offer and acceptance far less than the broader principle of mutual assent, of which offer and acceptance is merely a species. Where assent to a negotiated contract is effectively simultaneous, the question of who went first will matter very little. Suggesting that offer and acceptance can be minimized certainly does not mean it will be eliminated. Factual scenarios invoking the common law mirror-image rule[4] and its infamously divergent counterpart, the Uniform Commercial Code “battle of the forms”[5] have substantial consequences for the content of an agreement and deserve coverage. Most bar-exam nuances of whether a statement actually is an offer or an acceptance do not deserve more than a passing glance. The disappointing but unquestioned reality for those of us who teach contracts is that no one is going to offer you $100 to walk across the Brooklyn Bridge.[6]

Similarly inconsequential is the doctrine of consideration,[7] at least beyond the basic proposition that a promise must generally be exchanged for something of legal value to be enforceable. The overwhelming majority of commercial transactions—even those involving consumers—do not raise questions of consideration because there is little doubt that promisor is receiving something valuable and not promising a gift. For a legal masters student, a comparatively swift treatment of illusory promises (no legal value and therefore no contract)[8] and promissory estoppel (no legal value but the promise enforced to avoid injustice)[9] could suffice. Peppercorns and bargain theory certainly have pedagogical value, but that value is most appropriately realized in the J.D. version of the contracts course.

If topics like offer, acceptance, and consideration can get the short shrift, then what deserves the full scale treatment? An evaluation of doctrine that has more real world application would surely have the parol evidence rule[10] near the top of the list. The legal suppression of prior and contemporaneous statements from the negotiations leading up to contracting is enormously consequential to real-life commercial contracting, both in its ultimate substance and also as a cautionary tale about how and why the ultimate written agreement matters. Also, contract interpretation deserves the full-force treatment.[11] When private parties reach a point of dispute in their transaction, someone at some point is going to read the contract, in many cases well in advance of the involvement of counsel. Empowering these parties with an early chance to perceive the legal layout of the land is a good thing.[12] Finally, no area of contract law is more client-consequential than the law of remedies.[13] Future clients are well-served by understanding the foundations of what the are getting—or losing—in the event of a breach of contract.

The illustrative use of contract law here is more a thumbnail sketch than a completed portrait, but it makes the point. Legal masters courses are not watered down versions of their J.D. counterparts, but they are rebalanced in favor of practical reality in topic allocation. In contract law, subjects like the parol evidence rule, interpretation, and remedies are amongst the most challenging for students. Their preference here, thus, is not because they are easy. They certainly are not.[14] Rather, the topics are meaningful for career professionals who become legal masters students because they will more likely have cause to use them. Probable use should be a touchstone for course topic emphasis in legal masters programs.

The three principles discussed in this series—focusing on structural legal literacy, shifting problems to simulated client practice, and preferring practical reality in instructional allocation—highlight the ways in which a course serving legal masters students must differ from a J.D.-only course. The differences are critical if the courses are to be successful in leading toward masters-appropriate student learning outcomes.  Achieving the course outcomes should, in turn, ultimately result in successful programmatic outcomes where the two sets of outcomes are properly aligned. At the program level, law school masters programs are bringing substantial and functional legal literacy to professionals whether they are executives, managers, bankers, consultants, or entrepreneurs. The program objectives for legal masters degrees should build on the strengths of what legal education does, but that does not mean it is doing the exact same thing that it does for J.D. students.

The future could be quite bright for legal masters programs aimed at working professionals who interact with the law but do not seek to practice law. That bright future will only come about, however, with intentional program and course design that meets the educational goals and needs of legal masters students. All design should lead to access to law. Even when sharing space in a J.D. classroom, masters students deserve much more than to be a J.D. afterthought.

 

[1] Peter Toll Hoffman, Teaching Theory Versus Practice: Are We Training Lawyers or Plumbers?, 2012 Mich. St. L. Rev. 625, 627 (2012) (internal footnotes omitted).

[2] See Jeffrey M. Lipshaw, What's Going on? The Psychoanalysis Metaphor for Educating Lawyer-Counselors, 45 Conn. L. Rev. 1355, 1362 (2013) (asserting that “great lawyers as counselors seek out the interdisciplinary overlap and are comfortable operating within it.”); Michael Sullivan, The Lawyer As Counselor in an Age When Lawyers Are More Specialized and Task Focused, Do Clients Truly Receive Legal Counsel?, 76 Def. Couns. J. 253, 256 (2009) (“The Counselor is a value added attorney for the client.”).

[3] See generally Restatement (Second) of Contracts §§ 17 - 70 (1981) (collecting common law rules on the establishment of mutual assent to contract, most frequently through the process of offer and acceptance).

[4] See id. §§ 58 - 59 (stating that an effective acceptance must comply with the terms of the offer and be without qualification).

[5] See U.C.C. § 2-207 (2018) (describing—somewhat inartfully—circumstances under which an acceptance can deviate from the terms of an offer and nonetheless successfully form a contract for the sale of goods.).

[6] Mark B. Wessman, Is "Contract" the Name of the Game? Promotional Games As Test Cases for Contract Theory, 34 Ariz. L. Rev. 635, 647 (1992) (recounting how contracts professors have “generated hours of classroom debate over the proper treatment of offers of money in return for a stroll across the Brooklyn Bridge when the offeror revokes while the hapless offeree is halfway to Manhattan”). The hypothetical originated with Professor Maurice Wormser. See I. Maurice Wormser, The True Conception of Unilateral Contracts, 26 Yale L.J. 136, 136 (1916).

[7] See generally Restatement (Second) of Contracts §§ 71 – 109 (collecting rules of the common law related to the necessity of consideration or a substitute for consideration as a prerequisite of contract formation).

[8] See id. § 77 (“Illusory and Alternative Promises”).

[9] See id. § 90 (“Promise Reasonably Inducing Action or Forbearance”).

[10] See id. §§ 209 – 218 (collecting legal principles collectively known as the “parol evidence rule” along with its major exceptions).

[11] See generally id. §§ 200 – 204; see also Frigaliment Importing Co. v. B.N.S. Int'l Sales Corp., 190 F. Supp. 116, 117 (S.D.N.Y. 1960) (illustrating contract interpretation principles with a famously robust evaluation of the question, “[W]hat is chicken?”).

[12] Accord V. Pualani Enos, Lois H. Kanter, Who's Listening? Introducing Students to Client-Centered, Client-Empowering, and Multidisciplinary Problem-Solving in A Clinical Setting, 9 Clinical L. Rev. 83, 84 (2002) (asserting in another context that “[c]lients dealing with complex and multidimensional problems need service providers who approach problem-solving in a way that is client-centered [and] client-empowering”).

[13] Accord Michael P. Allen, Remedies As A Capstone Experience: How the Remedies Course Can Help Address the Challenges Facing Legal Education, 57 St. Louis U. L.J. 547, 557 (2013) (“[D]ecisions about what remedies to seek in a given context require lawyers to truly engage with their clients.”).

[14] Accord Joshua M. Silverstein, Using the West Key Number System As A Data Collection and Coding Device for Empirical Legal Scholarship: Demonstrating the Method Via A Study of Contract Interpretation, 34 J.L. & Com. 203, 259 n.314 (2016) (“If the drafters of the Restatement were this confused, it should not be surprising that generations of courts, lawyers, and law students have struggled with the principles of contract interpretation and the parol evidence rule.”).

Students Suing Universities

A sexual investigation was launched against male student “John Doe” of Columbia College of Chicago (“Columbia”) after a female accused Doe of non-consensual sexual relations.  A formal investigation and a hearing led to Doe being suspended from Columbia for an academic year.  Doe then filed suit in federal court alleging, i.a., Title IX violations and that Columbia had breached its contract with him by not providing him with an impartial investigation and adjudication of the matter.  He also asserted that he did not get access to the documentation relating to his hearing, that Columbia failed to discipline female individuals who engaged in similar conduct, and that the hearing panel’s decision was against the weight of the evidence.

The trial and appellate courts both pointed out that Illinois courts have expressed a reluctance to interfere with academic affairs and have held that a student’s breach of contract claim must involve decisions that were arbitrary, capricious, or made in bad faith.  Thus, Columbia would not even have been liable if the court had found that it exercised its academic judgment unwisely; rather, it must have disciplined a student without any rational basis.  This was not the case here.

Doe had had a chance to review the documentation, it was found.  Further, Columbia was not arbitrary or capricious in its response to Doe’s complaints about female students: they responded quickly, investigated, handled his complaints, and encouraged him to inform the university if any further incidents occurred. 

In other words, the burden in such cases is high.  To find in the student’s favor, the courts must find that the university “did not exercise its academic judgment at all, instead acting arbitrarily or in bad faith in its treatment of plaintiff.”

This outcome was probably warranted in this case and the reaffirmation of the standard welcome to educational institutions.  On the other hand, I find it slightly disturbing that, under better facts, a student’s contractual rights and arguments could not be given any weight even if the student could show that the university “exercised its academic judgment unwisely” or “at all”?  Of course, as law professors, we are aware of the difficulty it can be to deal with students who may be complaining about something out of emotional issues with their grades or the like.  However, just because a student is a student and, of course, protected by federal civil rights law does not mean that the student may not have a valid contractual argument.  As we know from extensive media discussions about the expense of going to college modernly, does it make sense from a contracts law point of view to say that the students cannot prevail with a contract claim even if the university exercised its judgment unwisely?  - Is the latter not exactly what you pay a university for?

Of course, these issues intersect with constitutional law, which must be followed.  But the standard is somewhat troubling under some circumstances, I think.

The case is Doe v. Columbia College Chicago, 2019 WL 3796000.

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (September 20, 2019)

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 22 Jul 2019 - 20 Sep 2019

Rank	Paper	Downloads
1.	Shining a Light on Dark Patterns Jamie Luguri and Lior Strahilevitz University of Chicago and University of Chicago Law School Date Posted: 07 Aug 2019 Last Revised: 07 Aug 2019	946
2.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law Date Posted: 16 Jul 2019 Last Revised: 18 Sep 2019	210
3.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School Date Posted: 17 Jul 2019 Last Revised: 29 Aug 2019	189
4.	Attention and the Law John M. Newman University of Miami - School of Law Date Posted: 23 Jul 2019 Last Revised: 29 Jul 2019	125
5.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 18 Sep 2019	81
6.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	69
7.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 16 Sep 2019	68
8.	The Failure of 'Notice and Consent' as Effective Consumer Policy James P. Nehf Indiana University Robert H. McKinney School of Law Date Posted: 23 Aug 2019 Last Revised: 23 Aug 2019	52
9.	Before the High Court - Discharged Contracts and Quantum Meruit: Mann v Paterson Constructions Pty Ltd John Eldridge and Tim Pilkington The University of Sydney Law School and University of New South Wales (UNSW), Faculty of Law, Students Date Posted: 02 Aug 2019 Last Revised: 02 Aug 2019	51
10.	Crisis Construction in Contract Boilerplate Emily Strauss Duke University School of Law Date Posted: 14 Sep 2019 Last Revised: 16 Sep 2019	51

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 22 Jul 2019 - 20 Sep 2019

Rank	Paper	Downloads
1.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law Date Posted: 16 Jul 2019 Last Revised: 18 Sep 2019	210
2.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School Date Posted: 17 Jul 2019 Last Revised: 29 Aug 2019	189
3.	Beach Money Exits Matthew Wansley Benjamin N. Cardozo School of Law Date Posted: 18 Aug 2019 Last Revised: 23 Aug 2019	110
4.	The Dark Side of Reputation Emily Kadens Northwestern University School of Law Date Posted: 22 Jul 2019 Last Revised: 22 Jul 2019	85
5.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 18 Sep 2019	81
6.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	69
7.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 16 Sep 2019	68
8.	חישוב פיצויי ציפייה במיזמים עתירי סיכון Calculating Expectation Damages in Risk-Intensive Ventures Yotam Kaplan and Kobi Kastiel Bar-Ilan University - Faculty of Law and Tel Aviv University - Buchmann Faculty of Law Date Posted: 17 May 2018 Last Revised: 10 Sep 2019	62
9.	Court Review of the Decisions of the Australian Financial Complaints Authority and its Predecessors Ian Ramsay and Miranda Webster Melbourne Law School - University of Melbourne and University of Melbourne - Law School Date Posted: 12 Aug 2019 Last Revised: 12 Aug 2019	58
10.	The Failure of 'Notice and Consent' as Effective Consumer Policy James P. Nehf Indiana University Robert H. McKinney School of Law Date Posted: 23 Aug 2019 Last Revised: 23 Aug 2019	52

Teaching Contract Law (and More) to Legal Masters Students - Part 3: Avoiding the Simulated Law Practice Paradigm

(Part 1 of this multi-part post is available here).

(Part 2 of this multi-part post is available here).

Adapted from Mark Edwin Burge, Access to Law or Access to Lawyers? Masters Programs in the Public Educational Mission of Law Schools., 74 U. Miami L. Rev. __ (forthcoming 2019), available here or at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3420457 (footnote numbering changed).

Course Design Principle #2: Avoid premising problems and writing assignments on simulated law practice.

Legal masters programs typically accept the proposition that writing and are a need and a value within the curriculum. The value exists both where courses are primarily skills oriented and also where writing is a method of formative assessment in a principally doctrinal course. This noncontroversial premise can lead to difficulty in its execution. The baseline starting point for many law schools’ curriculum development in the area of analytical writing skills, not surprisingly. is that with which they are already familiar: the 1L legal research and writing course that already exists in some form in every J.D. program in the United States.[1] That legal analysis and writing course is quite appropriately grounded in expressing the application of actual law to simulated facts in a setting where students play the role of a lawyer. Writing assignments in doctrinal courses, while usually not playing as dominant a course role as their skills-course counterparts, nevertheless follow the same paradigm. The problems are premised on assuming the role of a lawyer who is practicing law.

Simulated law practice is the problem. The crucial value added in a J.D. course setting is, in fact, a distraction to the masters students, sometimes to the point of detriment. Why would this be so? The programmatic and course outcomes for masters students do not contemplate their representation of clients. Time and instruction spent on the underlying assumption of taking on the lawyer’s role undermines the developing professional identity of the affiliated non-lawyer professional by, in effect, forcing it through a level of translation. While students whose goals include taking the bar exam and representing clients are well-served by assignments prompting the imagination of themselves in the role of the attorney,[2] other professionals are not. If we in legal education believe, as we certainly should, in the crucial role that J.D. legal education plays in formative professional development, then recognizing the need for analogous development of the professional identity of legal masters students is but a small step.

A related and ever-present issue in a legal masters program is discouraging the unauthorized practice of law. A well-designed program will build in training and frequent cautioning against unauthorized practice of law throughout the curriculum. Perhaps the most important aspect of any such training, however, is repeated emphasis on the bright-line prohibition against non-lawyers taking on or advising clients on legal matters. All United States jurisdictions share this rule in some fashion, despite their variance on numerous other questions of what does and does not qualify as unauthorized practice.[3]  Accordingly, a further problem with the pedagogy of simulated law practice is that it actively engages legal masters students in doing the one thing above all others that they are expressly prohibited from doing.

If the lens of simulated law practice is where a fundamental disconnect occurs between masters curriculum and its students, then it requires a pedagogical replacement to fill the hole in problem analysis and legal writing. Though the replacement lens could take several possible forms, the most useful descriptive category is simulated client practice. What would such a simulation look like and what would it seek to elicit from the student? Consider three examples from the Legal Analysis and Writing for Clients (LAWC) course at Texas A&M. In all three examples, goals include the teaching of legal concept and communications, but doing so from the perspective of a client rather than a lawyer.

The first LAWC example is tied to the course unit covering basic legal analysis and introducing, by example, the traditional legal memorandum. The memo, however, is not the end goal; rather, it serves as an illustration of the paradigmatic means by which lawyers document and support their analysis of a legal problem. The unit is tied to understanding why lawyers do what they do, and, most critically, recognizing work product in which lawyers are employing traditional analysis, such that a client can be empowered to take predictive analysis into account.

The summative assignment for this unit involves giving the student a legal case file, much like in a 1L course, except that the case file already includes what would be the J.D. course final product—a predictive memorandum. And that is because the actual assignment is still to come. Accompanying the case file is the actual assigning memorandum, which is addressed—not to “Junior Associate” at a law firm—but the “Assistant Risk Manager” at the client company. The risk manager must read the case file, the legal memorandum, and additional facts regarding the company’s business situation. These documents form the basis the ultimate assignment: Write a report to a supervisor that (1) summarizes the legal findings, (2) summarizes the business situation, and (3) makes recommendations for the company in light of the combination of both the legal analysis and the business reality. The legal prediction and the business facts frequently do not point the same direction. For example, a memorandum predicting that the client company could win a breach of contract lawsuit may ultimately be offset by the probable negative impact of burning the business relationship with the prospective defendant. Ultimately, the legal masters student is accounting for the lawyer’s role, but is accomplishing something quite different with her report.

A second example from the LAWC course arises from a unit on understanding common and foundational litigation documents, particularly pleadings and motions. In the underlying simulation, the students are given access to selected documents from the docket of an actual case. For federal court cases, the raw PDF documents are available through the PACER, which most legal educators can access through Bloomberg Law.[4] The real case is not random, of course, but is one selected for its relevance and application to the final project, which is (again) an internal company report. Out of the wealth of real and comparatively recent federal cases that are no longer active, the instructor should select and carefully curate one involving a business dispute and parties that can serve as background for a new simulation.

Consider, for the present description, the use of a breach of warranty lawsuit regarding the quality of commercial building supplies. For the new assignment hypothetical, the company employing the masters students as risk managers happens to have a similar problem with the seller who is a defendant in the previous litigation. Upon learning that the seller had been sued before, the company president obtains the key lawsuit documents from the longtime outside counsel, who provides them as a favor to a valued client. The president then tasks the risk manager (the student) with reviewing the documents and preparing a report in light of information about the company’s present situation involving the same seller. The report assignment requires the student to provide (1) a summary of the underlying dispute from the prior litigation, (2) a summary of what—procedurally—occurred in the prior litigation, and (3) an identification of potential problems that may arise in a new lawsuit against the seller. In essence, the students are required to demonstrate literacy in litigation documents sufficient to recognize possible business concerns and cautionary tales. In one version of this assignment in the Texas A&M program, the students could discern that the seller operates as several, similarly-named entities, some of which were not subject to the court’s personal jurisdiction. The students could also report on potential causes of action from the previous litigation. In the end, the students are able to make a low-cost evaluation of their company’s situation in advance of incurring the cost of bringing in outside counsel—a worthwhile contribution to the cause of client autonomy.[5] Once again, the purpose of the assignment is not to simulate the role of the lawyer; rather, the goal is to simulate the role of a legally-literate business professional—a potential client in the making.

The third assignment example from the LAWC course at Texas A&M involves contract drafting; more specifically, it involves the intersection of contract drafting and working effectively with lawyers. The assignment  is, again, not directed to a junior attorney, but to a company “Contracting Officer” who is provided the details on either a preliminary deal or an area in which her employer needs to create a form contract. In initial substance, the assignment packet has much in common with what one might find in a J.D. contract drafting course.[6] In the lead-up to the assignment, the students receive instruction in contracting literacy, including typical document structures, purposes and examples of boilerplate, and methods of presenting substantive terms. The shift away from the J.D. framework comes in the ultimate assignment. The students are provided with specific business goals and concerns that the company wants dealt with in the final contract, and the student assignment is to prepare an annotated first draft contract to be sent to the company’s general counsel. “First draft” in this context does not mean a rough draft. It means a polished product that is nonetheless understood to be a precursor to the final product.[7] Perhaps the most important aspect of this document is that it is annotated. What does annotated mean in this assignment? The comment-bubble notes are (1) explanations of why the initial drafter did what she did, and (2) questions for the general counsel that arose in the drafting process.

For learning purposes, the annotations are more important to this assignment than is the actual contract text. The masters students are achieving two critical learning outcomes with this assignment. First, they are developing legal literacy with regard to working in and around contract documents. Business decision makers ought to be able to understand the private-law agreements to which they are or might be bound. Contending otherwise is antithetical to the purpose of private law autonomy, which is empowering parties with a modicum of legal control over their own destinies.[8] Second, the students are developing the skill of effective collaboration with lawyers, a skill that involves and requires a recognition of when and how to ask questions. Legal issues do not always show up on a company’s doorstep in the prepackaged form of a citation and summons. The contract-creation assignment provides an opportunity for initial issue spotting by the client at a far more subtle level, empowering the client with greater facility in knowing when to bring in a lawyer.[9]

All three of these example assignments teach legal-interaction skills but do not place them in the developmentally counterproductive context of simulating the practice of law. The replacement model is simulated client practice. Legal masters programs should not only address students where they are, but courses should be constructed around the imagination of where they will be. Although these examples are drawn from a skills course, their underlying philosophy should impact a doctrinal course as well. The problems and hypotheticals grounded in a call of the question like, “How would you advise your client?” should be replaced with the client-side perspective, ranging from “What legal risks concern you here?” to “What would you do?” realizing that answers to the latter question will more than occasionally include the phrase, “I’d consult a lawyer regarding . . . .”

 

[1] See ABA Standards and Rules of Procedure for Approval of Law Schools 2018-2019, Standard 303(a)(2), https://www.americanbar.org/content/dam/aba/publications/ misc/legal_education/Standards/2018-2019ABAStandardsforApprovalofLawSchools/2018-2019-aba-standards-chapter3.pdf (requiring that the J.D. program of legal education at an ABA-accredited law school include “one writing experience in the first year and at least one additional writing experience after the first year, both of which are faculty supervised”).

[2] William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 185-203 (2007). See also William M. Sullivan, After Ten Years: The Carnegie Report and Contemporary Legal Education, 14 U. St. Thomas L.J. 331, 334 (2018) (advocating greater support by law schools in training future lawyers by “providing entrants to the field effective ways to engage and make their own the ethical standards, social roles, and responsibilities of the profession, grounded in the profession's fundamental purposes.”).

[3] See Leonor E. Miranda, Finding A Practical Solution to Bridging the Justice Gap for Immigrants in the United States, 30 Geo. Immigr. L.J. 163, 183 n.135 (2015) (“All 50 states have rules and laws prohibiting the unauthorized practice of law, mainly to protect consumers. Non-lawyers are generally prohibited from practicing law; however, what constitutes the ‘practice of law’ or the ‘unauthorized practice of law’ is by no means uniform, even within the same jurisdictions[.]”) (internal quotation marks omitted).

[4] Although it is a comparative latecomer to the commercial online research arena, Bloomberg Law has carved a recognized niche in its expansion of academic access to federal court dockets and documents. See, e.g., UCLA School of Law Hugh and Hazel Darling Law Library, Dockets and Court Documents in Bloomberg Law: Getting Started, https://libguides.law.ucla.edu/dockets (“Bloomberg Law is an excellent alternative to PACER. It provides access to all dockets available in PACER, and there is no charge to search dockets or to retrieve court materials from Bloomberg Law.”).

[5] Accord Anthony J. Sebok, What Do We Talk About When We Talk About Control?, 82 Fordham L. Rev. 2939, 2959 (2014) (“[T]he fear that nonlawyers will use control to influence the reasons that clients receive concerning legal decisionmaking, while genuine, needs to be balanced against client autonomy: loyalty to clients may require lawyers (and nonlawyers) to allow clients to hear opinions from whomever the client chooses.”).

[6] See, e.g., Tina L. Stark, Drafting Contracts: Why Lawyers Do What They Do (2d ed. 2014).

[7] Perhaps oddly, this situation is analogous to legal writing practices that predominated among many lawyers before the widespread adoption of word processing technology. See Lucia Ann Silecchia, Of Painters, Sculptors, Quill Pens, and Microchips: Teaching Legal Writers in the Electronic Age, 75 Neb. L. Rev. 802, 846 (1996) (“A legal writer in this earlier environment would be concerned primarily with ensuring that a first draft was relatively polished, given the practical difficulties in editing. . . . A lawyer in the pre-electronic age would, most likely, write with the expectation that there would be less rewriting and revision than is possible today.”).

[8] Cf. Mark Edwin Burge, Too Clever by Half: Reflections on Perception, Legitimacy, and Choice of Law Under Revised Article 1 of the Uniform Commercial Code, 6 Wm. & Mary Bus. L. Rev. 357, 380–81 (2015) (“Proponents of choice-of-law autonomy thus find it foundational that in the absence of third-party effects, the parties to the transaction should be permitted to choose the applicable law through contract without reference to any limiting test. In this view, law is not and should not be different from any negotiated and fully private contract term: let law be part of a marketplace.”) (internal cites and quotations omitted).

[9] Such empowerment on the client side would also arguably support a client-centered approach to representation by the lawyer. See Katherine R. Kruse, Beyond Cardboard Clients in Legal Ethics, 23 Geo. J. Legal Ethics 103, 127 (2010) (describing the client-centered approach as “directly responsive to the problem of legal objectification” in that it “urges lawyers to unlearn the professional habit of ‘issue-spotting’ their clients and to approach their clients as whole persons who are more than the sum of their legal interests.”).

Teaching Contract Law (and More) to Legal Masters Students - Part 2: Focus on Structural Legal Literacy

(Part 1 of this multi-part post is available here).

Adapted from Mark Edwin Burge, Access to Law or Access to Lawyers? Masters Programs in the Public Educational Mission of Law Schools., 74 U. Miami L. Rev. __ (forthcoming 2019), available here or at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3420457 (excerpt footnotes omitted).

Course Design Principle #1:  Focus legal text comprehension on structural legal literacy.

Understanding the general meaning and structure of legal texts—especially cases, statutes, and regulations—is a critical goal for professionals who will deal with lawyers or be the first line of defense for an organization’s legal compliance. The baseline level of this comprehension should be structural legal literacy—a broad-based ability to recognize and identify a legal text’s design features. For cases, this recognition would cover judicial rule statements, analogies to precedent, and ultimate holdings. For statutes and regulations, the identification of elements, factors, and code-defined terminology (such as definitions) would likewise be a core competency. Such parsing of legal text is an early focus of J.D. legal education, but there it builds out toward more advanced concepts like the temporal development of common law and the discernment of legislative intent. For masters students, the structural comprehension is not merely a means to other ultimate goals; rather, it is itself an ultimate goal.

That distinction between being an end rather than a means to an end is a substantive one: It impacts fundamental pedagogy. Most significantly, the signal, historical pedagogy of legal education—the Socratic method—is ill-advised for masters-type legal education. As others have observed in the J.D. context, Socratic method has some significant educational value, but it is inefficient for teaching the law. Indeed, the Socratic method’s purpose, in the very real articulation of the famous-but-fictional Professor Kingsfield, is not to teach the  law, but rather to train students to think like a practicing lawyer. While “thinking like a lawyer” is a time-honored and worthy goal in the halls of the legal academy, it is inapposite for students in a program that, by definition, is not designed to turn them into lawyers.

In the masters program setting, accordingly, the primary purpose of reading a case involving contract law primarily is to learn the contract law—both in its abstract, black-letter sense (the rule) and in its applied-example sense (the immediate story of how the rule operates). The top-level goal is not to discern procedural nuances and the murky role of dicta, nor is it to construct the historical development of doctrines like consideration or promissory estoppel. Consequently, the students would seldom benefit from “hide the ball” type classroom engagements as those detract from the principal task of top-level legal literacy. Likewise, the study of statutes or regulations requires focus on navigating and discerning the meaning of rule texts, including integrated codes. It can rightfully exclude excessive focus on ambiguity, drafting errors, and legislative history. Hypotheticals directed toward teasing out absurd results of statutory canons may well be fun, but they are beside the point. A non-lawyer needs a working level of comfort with assimilating legal texts, the vast majority of which whose meaning is not in both serious and consequential question. The more complex—and frankly more rare—arguments over legal meaning can (and should) be brought to the lawyers.

[Continued in Part 3]

Teaching Contract Law (and More) to Legal Masters Students - Part 1: Principles of Masters Course Design

Adapted from Access to Law or Access to Lawyers? Masters Programs in the Public Educational Mission of Law Schools., 74 U. Miami L. Rev. __ (forthcoming 2019), available here or at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3420457.

Abstract:

The general decline in J.D. law school applicants and enrollment over the last decade has coincided with the rise of a new breed of law degree. Whether known as a master of jurisprudence, juris master, or master of legal studies, these graduate degrees all have a target audience in common: adult professionals who neither are nor seek to become practicing attorneys. Inside legal academia and among the practicing bar, these degrees have been accompanied by expressed concerns that they detract from the traditional core public mission of law schools—educating lawyers. This article argues that non-lawyer masters programs are not a distraction from the public mission of law schools, nor are they a necessary evil foisted upon legal education by economic trends. Rather, such degrees reflect a paradigm shift that law schools and attorneys should embrace rather than resist: a move away from law being largely accessed primarily through a licensed elite and toward a greater role for autonomy in public engagement with the legal system. The law school function of serving the public goes well beyond training future lawyers or even marshalling them in the advance of access to justice. The expanded legal education vision advocated here includes those functions, but as part of a more encompassing mission: ensuring access to law rather than simply access to lawyers. This article then sets forth foundational frameworks for such programs to succeed at their goals, both at the programmatic level and at the course-design level.

 

From the Article (footnotes omitted):

Like the article as a whole, this consideration of course design is informed by the author’s own experiences, victories, and defeats on the instructional battlefield. The examples here are principally drawn from two courses. The first of these is Contracts, a doctrinal staple of the J.D. curriculum that I have taught in in three forms: the fully-J.D. format, the mixed J.D.-and-masters format, and the masters-only format. The second course is one styled Legal Analysis and Writing for Clients, a masters-only course created as an adaptation of J.D. lawyering-skills and legal writing curriculum for the needs of working professionals. Both courses have played important roles in bringing me to the viewpoints expressed here regarding how masters students should be accounted for in course design as compared to their J.D. counterparts.

The specific topical coverage of any law course can be as varied as the doctrine and skills encompassed by law itself. For that reason, the focus of this section is on principles of masters course design rather than bright-line rules. Any attempt at stating hard-and-fast requirements for masters courses as compared to their J.D. counterparts is certain to face death by counterexample. Something will inevitably not fit within the rigid rules. For that reason, a principles-based approach is the preferable way to conceive of course design in this space, recognizing that aspiration must have the flexibility to give way to reality. General principles are critical, however, to answering the specific questions faced by law school masters programs. The following three principles, while hardly an exclusive list, state tendencies that will best align masters courses with their appropriate programmatic outcomes, which in turn will fulfil the expanded law school public mission advocated by this article:

(1) Focus legal text comprehension on structural legal literacy.

(2) Avoid premising problems and writing assignments on simulated law practice.

(3)  Prefer practical reality over theory.

The remainder of this section addresses each of these principles with a goal of illustrating how they might look in practice.

[Continued in Part 2]

 

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (September 13, 2019)

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 15 Jul 2019 - 13 Sep 2019

Rank	Paper	Downloads
1.	Shining a Light on Dark Patterns Jamie Luguri and Lior Strahilevitz University of Chicago and University of Chicago Law School Date Posted: 07 Aug 2019 Last Revised: 07 Aug 2019	930
2.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law Date Posted: 16 Jul 2019 Last Revised: 05 Sep 2019	192
3.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School Date Posted: 17 Jul 2019 Last Revised: 29 Aug 2019	186
4.	Attention and the Law John M. Newman University of Miami - School of Law Date Posted: 23 Jul 2019 Last Revised: 29 Jul 2019	120
5.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 17 Aug 2019	78
6.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	68
7.	Towards a Civil Rights Approach to Insurance Anti-Discrimination Law Daniel Schwarcz University of Minnesota Law School Date Posted: 12 Jul 2019 Last Revised: 12 Jul 2019	65
8.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 25 Aug 2019	63
9.	A Sea Change in the Law of Contract Interpretation? David McLauchlan Victoria University of Wellington - Faculty of Law Date Posted: 08 Jul 2019 Last Revised: 08 Jul 2019	56
10.	Before the High Court - Discharged Contracts and Quantum Meruit: Mann v Paterson Constructions Pty Ltd John Eldridge and Tim Pilkington The University of Sydney Law School and University of New South Wales (UNSW), Faculty of Law, Students Date Posted: 02 Aug 2019 Last Revised: 02 Aug 2019	50

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 15 Jul 2019 - 13 Sep 2019

Rank	Paper	Downloads
1.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law Date Posted: 16 Jul 2019 Last Revised: 05 Sep 2019	192
2.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School Date Posted: 17 Jul 2019 Last Revised: 29 Aug 2019	186
3.	Beach Money Exits Matthew Wansley Benjamin N. Cardozo School of Law Date Posted: 18 Aug 2019 Last Revised: 23 Aug 2019	104
4.	The Dark Side of Reputation Emily Kadens Northwestern University School of Law Date Posted: 22 Jul 2019 Last Revised: 22 Jul 2019	85
5.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 17 Aug 2019	78
6.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	68
7.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 25 Aug 2019	63
8.	Court Review of the Decisions of the Australian Financial Complaints Authority and its Predecessors Ian Ramsay and Miranda Webster Melbourne Law School - University of Melbourne and University of Melbourne - Law School Date Posted: 12 Aug 2019 Last Revised: 12 Aug 2019	57
9.	The Singapore Convention: Mediation in a New York State of Mind James M. Claxton Kobe University - Graduate School of Law Date Posted: 10 Jul 2019 Last Revised: 08 Aug 2019	50
10.	Before the High Court - Discharged Contracts and Quantum Meruit: Mann v Paterson Constructions Pty Ltd John Eldridge and Tim Pilkington The University of Sydney Law School and University of New South Wales (UNSW), Faculty of Law, Students Date Posted: 02 Aug 2019 Last Revised: 02 Aug 2019	50

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (September 6, 2019)

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 08 Jul 2019 - 06 Sep 2019

Rank	Paper	Downloads
1.	Shining a Light on Dark Patterns Jamie Luguri and Lior Strahilevitz University of Chicago and University of Chicago Law School Date Posted: 07 Aug 2019 Last Revised: 07 Aug 2019	897
2.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School Date Posted: 17 Jul 2019 Last Revised: 29 Aug 2019	181
3.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law Date Posted: 16 Jul 2019 Last Revised: 05 Sep 2019	140
4.	Attention and the Law John M. Newman University of Miami - School of Law Date Posted: 23 Jul 2019 Last Revised: 29 Jul 2019	111
5.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 17 Aug 2019	75
6.	Towards a Civil Rights Approach to Insurance Anti-Discrimination Law Daniel Schwarcz University of Minnesota Law School Date Posted: 12 Jul 2019 Last Revised: 12 Jul 2019	64
7.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	64
8.	A Sea Change in the Law of Contract Interpretation? David McLauchlan Victoria University of Wellington - Faculty of Law Date Posted: 08 Jul 2019 Last Revised: 08 Jul 2019	53
9.	Before the High Court - Discharged Contracts and Quantum Meruit: Mann v Paterson Constructions Pty Ltd John Eldridge and Tim Pilkington The University of Sydney Law School and University of New South Wales (UNSW), Faculty of Law, Students Date Posted: 02 Aug 2019 Last Revised: 02 Aug 2019	49
10.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 25 Aug 2019	49

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 08 Jul 2019 - 06 Sep 2019

Rank	Paper	Downloads
1.	Mandatory Rules Eyal Zamir and Ian Ayres Hebrew University of Jerusalem - Faculty of Law and Yale University - Yale Law School Date Posted: 17 Jul 2019 Last Revised: 29 Aug 2019	181
2.	A Short History of the Choice-of-Law Clause John F. Coyle University of North Carolina School of Law Date Posted: 16 Jul 2019 Last Revised: 05 Sep 2019	140
3.	Beach Money Exits Matthew Wansley Benjamin N. Cardozo School of Law Date Posted: 18 Aug 2019 Last Revised: 23 Aug 2019	93
4.	The Dark Side of Reputation Emily Kadens Northwestern University School of Law Date Posted: 22 Jul 2019 Last Revised: 22 Jul 2019	84
5.	The Ethos of Arbitration Thomas Schultz King's College London Date Posted: 21 Jun 2019 Last Revised: 06 Sep 2019	75
6.	Choice Theory: A Restatement Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School Date Posted: 08 Aug 2019 Last Revised: 17 Aug 2019	75
7.	Loser Takes All: Multiple Claimants & Probabilistic Restitution Maytal Gilboa and Yotam Kaplan University of Toronto and Bar-Ilan University - Faculty of Law Date Posted: 08 Aug 2019 Last Revised: 09 Aug 2019	64
8.	Court Review of the Decisions of the Australian Financial Complaints Authority and its Predecessors Ian Ramsay and Miranda Webster Melbourne Law School - University of Melbourne and University of Melbourne - Law School Date Posted: 12 Aug 2019 Last Revised: 12 Aug 2019	55
9.	The Singapore Convention: Mediation in a New York State of Mind James M. Claxton Kobe University - Graduate School of Law Date Posted: 10 Jul 2019 Last Revised: 08 Aug 2019	49
10.	Sleeping Giant Contracts G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law Date Posted: 25 Aug 2019 Last Revised: 25 Aug 2019	49

Companies Cannot Impose Arbitration by Stealth

U.S. District Judge William Orrick (ND CA) has just held that companies must still provide online customers with adequate notice of arbitration and other provisions.  This is so in at least the Ninth Circuit after Nguyen v. Barnes & Noble(763 F.3d 1171 (Ninth Cir. Ct. of App.)).  (I proudly note that Kevin Nguyen was a student in one of my 1L Contracts classes years ago!)

As reported by Reuters, it’s become standard operating procedure for companies to require online or mobile customers to agree to mandatory arbitration by clicking their assent to terms of service. But there’s still a roaring debate about exactly howcompanies can bind their customers (and employees, for that matter) to arbitration in other contexts. Do customers assent to arbitration merely by visiting a website or downloading a mobile app that provides a link to service terms mandating arbitration? Or must consumers specifically acknowledge that they’ve surrendered their right to litigate?

Courts have had to scrutinize websites and apps to decide whether they provide consumers with enough information to allow informed assent. Judges have come to be generally skeptical of so-called browse-wrap agreements, in which companies merely post mandatory arbitration conditions and contend that customers have consented by continuing to use their services. Click-wrap agreements – in which companies present consumers with their terms of service and specifically require assent – are generally deemed to be enforceable.  In the case just resolved by J. Orrick, the arbitration provision fell into an in-between category known as a “sign-in wrap.”  Beginning in February 2018, when customers registered at the company’s website, they were required to click their assent to Juul’s terms of service, which prominently mentioned mandatory arbitration.  But to see those terms of service, consumers had to click on a separate link.

Juul did not prominently highlight the hyperlink to its terms of service. The link, said J. Orrick, was virtually indistinguishable from the surrounding text – no color change, underlining, capitalization or italicization signaled to consumers that they could click to read Juul’s specific terms and conditions.  One of the plaintiffs registered via a subsequent log-in iteration in which Juul underlined the hyperlink to its service terms, but J. Orrick found even that notice to be inadequate.

The case is Bradley Colgate, et al. v. Juul Labs, Inc., et al.,2019 WL 3997459.

Visiting Faculty Position: Business Law, U.S. Air Force Academy, Colorado Springs, CO

From our friends in the Air Force comes this notification: https://chroniclevitae.com/jobs/0000500918-01?cid=ja