Tuesday, May 19, 2020
Alan wants to be the Marie Condo of contracts doctrine, decluttering our lives, by removing consideration, a concept that no longer sparks joy for him. True to his Gallic, Cartesian roots and his MIT training, Alan is a dogged rationalist determined to écrasez l'infâme of historical detritus polluting contacts law. It won't work, for good reasons and bad ones. I can imagine an idyllic future in which happy lawyers and judges resolve all contractual issues without even mentioning consideration, but I can also embrace an eschatological vision in which virtuous pagan contracts profs pass the time in limbo by exploring the finer points of the doctrine of consideration.
My good reasons for rejecting Alan's advice that we stop teaching consideration run as follows:
- Consideration is the umbrella that has kept us dry, so we shouldn't discard it -- Alan can't find a lot of cases that raise issues of consideration because it is a basic concept that we have successfully taught our students and it is incorporated into all standard form contracts;
- As Alan argues, if you teach offer and acceptance in the context of bargain theory, you have captured formation without needing to discuss consideration, but that still leaves a lot of doctrines (firm offers, modification, moral obligation, illusory promises) for which you need to introduce the concept;
- Alan thinks you can cover all those doctrines through alternative legal theories, but better to use consideration to destroy plaintiff's prima facie case than to rely on affirmative defenses (or throw the dice with public policy arguments);
- Alan's primary argument is about pedagogy, but he has a shadow argument about law reform, and promoting ignorance of a key contractual doctrine seems unlikely to best arm students to engage in law reform; and
- Alan argues that, in a lot of cases that turn on the doctrine of consideration, the courts misapply the doctrine, but our students will be better able to avoid those outcomes if they can explain to the courts what consideration is rather than dismissing it as a historical curiosity.
My bad reasons for teaching consideration include:
- Courts think it's a thing, so whether or not that thing has value, there is value in speaking the language that courts understand;
- Students think it's a thing, so if you leave it out, they will bring it up, and if you don't spend the time to explain it right, they will leave with only a little knowledge, which is a dangerous thing;
- Alan acknowledges that even in his consideration-free syllabus, you have to make passing reference to it, because it pops up in cases and ancillary materials, so really a consideration-free syllabus is a species of unobtainium; and, the worst reason of all
- I frickin' love teaching consideration and all of those musty old cases that come with it!
Also, I'm concerned that after Alan achieve his goal, he may ask himself, "MY GOD, WHAT HAVE I DONE?!?"
Alan presents a series of doctrines that he thinks explain cases better than consideration. I think Alan will end up spending as much time explaining why he doesn't think consideration is a helpful notion as he would spend teaching consideration. And he may get push back, since his students may believe, as do I, that while contracts doctrine is fluid, and the doctrines are not easily untangled, there is no doctrine that entirely eliminates the need for consideration. The end result may be a more thorough engagement with consideration than is typical, and so Alan's approach of not teaching consideration may end up being the perfect vehicle for teaching it well.