Tuesday, September 24, 2019
(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.” 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, 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. 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 and its infamously divergent counterpart, the Uniform Commercial Code “battle of the forms” 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.
Similarly inconsequential is the doctrine of consideration, 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) and promissory estoppel (no legal value but the promise enforced to avoid injustice) 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 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. 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. Finally, no area of contract law is more client-consequential than the law of remedies. 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. 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.
 Peter Toll Hoffman, Teaching Theory Versus Practice: Are We Training Lawyers or Plumbers?, 2012 Mich. St. L. Rev. 625, 627 (2012) (internal footnotes omitted).
 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.”).
 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).
 See id. §§ 58 - 59 (stating that an effective acceptance must comply with the terms of the offer and be without qualification).
 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.).
 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).
 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).
 See id. § 77 (“Illusory and Alternative Promises”).
 See id. § 90 (“Promise Reasonably Inducing Action or Forbearance”).
 See id. §§ 209 – 218 (collecting legal principles collectively known as the “parol evidence rule” along with its major exceptions).
 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?”).
 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”).
 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.”).
 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.”).