Tuesday, August 31, 2021
Tuesday Top Ten - Contracts & Commercial Law Downloads for August 31, 2021
It's Tuesday, and we've got some lists. 'Nuff said.
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 02 Jul 2021 - 31 Aug 2021| Rank | Paper | Downloads |
|---|---|---|
| 1. | 414 | |
| 2. | 179 | |
| 3. | 171 | |
| 4. | 136 | |
| 5. | 110 | |
| 6. | 81 | |
| 7. | 67 | |
| 8. | 65 | |
| 9. | 55 | |
| 10. | 45 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 02 Jul 2021 - 31 Aug 2021| Rank | Paper | Downloads |
|---|---|---|
| 1. | 414 | |
| 2. | 136 | |
| 3. | 67 | |
| 4. | 61 | |
| 5. | 26 |
August 31, 2021 in Recent Scholarship | Permalink
Contracts and the Netflix Series, "The Chair"
Like seemingly everyone else, I have become obsessed with Netflix's six-episode mini-series The Chair. It's not great, but it's home, and it features Sandra Oh (right). I would pretty much watch anything with Sandra Oh, which is why I continued to watch Killing Eve, even after I lost interest in the characters. Once I lost interest in Villanelle's clothes, I knew it was over. But I digress.
If you have been asleep for the past fortnight (or don't have Netflix), let me fill you in. Sandra Oh stars as, Ji-Yoon, the first woman chair of an English Department at a distinguished university. Her colleagues are all stock figures: the doddering tenured deadwood who barely knows what's going on; the more with it stick-in-the-mud, Eliot, who desperately wants to believe he is still in his prime; the under-appreciated senior female Associate Professor, Joan, still passionate about Chaucer and still suffering casual sexism with dignity; the charismatic, self-destructive alcoholic modernist, Bill, still mourning a wife lost to cancer; and the smart, with-it, Black woman professor, Yaz, who knows everything the older generation knows but also can connect with students and especially with students of color. There are other people who show up for faculty meetings, but we don't learn anything about them in the six episodes. And then there's David Duchovny, playing a version of himself, which is awesome!
The series gets some things about the academy right. The actors are all superb. Academics are eccentric. Budgets are tight, and it is hell to be a faculty member placed in an administrative role these days. Something's got to give, and often that something is a person's job. Students can combine their educations with their experiences to generate both a vocabulary and a theoretical apparatus through which they give expression to a lot of justified outrage. Sometimes the remedy for that outrage entails real human costs. These are serious subjects, and The Chair struggles to keep things light while addressing both the reality of student grievance and difficulty for faculty members trying to navigate between student demands and a university that is primarily trying to avoid bad publicity. It also tends to reduce situations and behaviors to parodies. Six, half-hour episodes do not provide enough space to develop an ensemble of characters. There are only two students who figure in multiple scenes, and we get bare glimpses of who they really are. Most of the students are there to deliver perfectly formulated critiques of institutionalized racism.
The series gets a lot more wrong, and I suppose that only bothers me because the series is set in my professional home. Shows about the law get things wrong all the time, but I can move on. In this series, I find it preposterous. Bill and Joan's characters get fleshed out a bit, but they are not fully realized. We get to know Joan slowly as a creature of the university, but we never see her in any other context. We learn late in the series Eliot has a wife who was denied tenure and settled into domesticity. It is a too little, too late attempt to humanize him. I would love to see a series that explored academic eccentricity but also displayed the characters' unique passions and gifts so that viewers can really understand both what drew them to the academy and away from commercial life or social activism or whatever else people do, and why somebody thought they would make a good colleague.
Pembroke University, where the series is set, is neither fish nor fowl. It seems like a research university, but we only see one graduate student. The only courses on offer seem to be on Chaucer, Emily Dickinson, and Melville. No non-canonical texts, only non-canonical riffs on canonical texts. More importantly, composition, the bread-and-butter of English-department teaching, is mentioned only in the final episode when a doddering professor exclaims "I'm not teaching composition!" Well who does? There seem to be no Rhet/Comp professors, nobody teaches Communications, even though that program is often merged with English these days, and there is no indication that graduate students or adjuncts are engaged in teaching at all, except as a T.A. for Bill, who can't manage to show up for class sober or remember what course he is supposed to be teaching. I could go on, but I need to justify this rant by talking about a contract.
***SPOILER ALERT****
If you haven't watched the series yet and plan to do so, read no further, as I am going to reveal the main plot-line as well as what happens in the final episode on the other side of the break.
August 31, 2021 in Commentary, Television | Permalink | Comments (0)
Monday, August 30, 2021
Commenting on Student Homework: The Sandwich
I hesitate to mention sandwiches on this blog, because contracts profs will initiate a debate on whether or not a burrito, or a wrap, or a calzone, etc. is a sandwich at the slightest provocation. This post is not about that!
I give homework in law school. Less in upper-level courses, but quite a lot really in Contracts. This year, I have 80 students in my section, which is more than I'm used to but pretty normal I think for first-year law sections generally. Most weeks, there is homework, but I only grade some of the students each week. If a student fails to turn homework in on time, that student is automatically graded. The point it to get them to work on the material each week. I do this because bar prep experts tell me that studies show that students who do the work learn the material. Passing the bar is primarily about putting in the time. The vast majority of students who have made it to law school can pass the bar if they do the work.
Students are graded on effort, not on whether they get the right answers (if the homework has right answers). In Contracts, there are three categories of homework. Some weeks, I give the students two multiple choice questions, and they have to explain why the right answer is right and why the wrong answers are wrong. I try to model the questions on bar questions, and the answers that are wrong should be wrong for reasons that options on the multiple-choice bar exam would be wrong: they misstate the rule; they state the wrong rule; they state an old common-law rule that has been superseded; they state the UCC rule, but this case is governed by the common law or vice versa; they state the rule but the question tests knowledge of the exception or vice versa, etc.
Some weeks, I give issue-spotting exercises, with one-paragraph fact patterns. Student have to identify the issue, identify the rule, and predict how a court would resolve the issue. These fact-patterns should have clear issues, rules, and outcomes. This exercise is a building block for the third type of homework, which is a bar-style fact pattern designed to be answerable in one hour.
Grading all of this homework takes time, but that's why the gods created weekends. Grading that many papers quickly means that I cannot spend very much time on comments. I don't spend as much time as perhaps I should praising students for good work. My comments focus on correcting things that are wrong. This is not ideal. Negative comments are a bummer. They are discouraging, and they need to be balanced with words of encouragement.
A common solution is the sh*t sandwich. My first full-time teaching job was teaching freshman composition when I had finished my dissertation but was still at my degree-granting university waiting to defend. It was a good freshman-writing program, with a lot of guidance about working with students who are still trying to find their voice as writers. The people who ran the program never would have put it this way, but we graduate students came to refer to the advice as recommending a sh*t sandwich. That is, sandwich your substantive criticisms of the student's writing between opening and concluding words of praise.
You try to make it too obvious, or pile on generous helpings of poo between crepe-thin layers of breading. E.g., you won't fool anybody with: "Congratulations on turning in your assignment on time. Unfortunately, it is so riddled with misspellings, grammatical errors, and erroneous reasoning, I can hardly made sense of your arguments and wonder how you were admitted to this program. Still, you have made great strides since the last assignment, which you never turned in."
The truth is, it is usually pretty easy to find things to praise in student work. Especially when you are testing multiple skills -- issue spotting, legal analysis, knowledge of legal rules, clear writing style and organization, etc. So one can indeed sandwich the bad news between layers of praise. This is important not only because it prevents students from thinking that they are somehow unsuited to legal work, but if you mix encouragement with suggestions for improvement, students are more likely to find you approachable and seek advice when they need it. I say all this not so much to provide advice to others but to remind myself that I don't want my comments to be so off-putting that students find me unapproachable.
There are arguments against the sh*t sandwich (in the managerial context, but still some of what hits the fan sticks). You can read them here. Basically, the problem is that it feels disingenuous, students are likely to recognize the pattern, and even if they don't, they will focus on the negative. I hope that is not the case, but even if it is, the sh*t sandwich forces me to think about positive and encouraging things to say to students when I am rushing to get their work back to them, and but for that, I might only bother to write corrections.
August 30, 2021 in Commentary, Teaching | Permalink | Comments (0)
Thursday, August 26, 2021
Promises, Promises Podcast Returns for Season 2
Hey, ContractsProfs, if you are looking for some fun and informative content to share with your students, you should check out David Hoffman (left) and Tess Wilkinson-Ryan's (right) Promises, Promises Podcast.
In each episode, they discuss one case. ContractsProfs can recommend it to students looking for supplemental insights and approaches to the cases assigned in class.
This year they are starting off with Frigaliment, a case about which we may have posted before. ContractsProfs, if you are tired of donning your chicken costume to teach the case, you might give yourself a day off, find the podcast, and just hit play.
August 26, 2021 in Contract Profs, Famous Cases, Web/Tech | Permalink | Comments (0)
Wednesday, August 25, 2021
The Other Shadow Docket* Revisited: Hidden Contract Issues in Mahanoy Area School District v. B.L. (the Cheerleader Case)
A few months ago, I posted about Jamal Greene's How Rights Went Wrong and a case decided during the last SCOTUS term, Fulton v. City of Philadelphia. As I pointed out in the last post, one of the key points that Professor Greene (left) makes is that our jurisprudence elevates certain rights as "fundamental," and courts protect those rights zealously through heightened scrutiny. Other rights, since 1937 or thereabouts, have been left nearly entirely unprotected. Greene illustrates the phenomenon and the damage it has done to our social fabric with myriad examples. Contracts rights, protected in the Lochner Era, are largely disregarded today. Neither Professor Greene nor I advocate a return to Lochner. Indeed, Professor Greene regards Justice Harlan's Lochner dissent with wistful admiration, as a path not taken. He has persuaded me that courts ought to engage in less rights fundamentalism and more rights negotiation and mediation.
In my last post, I indicated that if the Court had been more interested in contracts rights and less committed to a winner-take-all strategy in which Free Exercise Rights trump all, Fulton could have come out differently, and I think better. Today, I want to make the argument that the Court should have at least considered contracts law before siding with the foul-mouthed cheerleader in Mahanoy.
A quick review of the facts: B.L. was on the junior varsity team at Mahanoy in her freshman year. She tried out for varsity but did not make it. Upset about that and other things, she expressed her outrage, off campus and over the weekend, on Snapchat. The Snap that got her in trouble was a picture of her and a friend giving the camera the finger. The text, which is edited here, because this is a family-friendly blog (this blog is #f-faf), "f school f softball f cheer f everything." She shared the Snap with 250 friends, many of whom attended her school, and some of whom were cheerleaders.
Another cheerleader, who happened to be the daughter of one of the coaches, shared the Snap with her mother. Many cheerleaders were upset by the Snap, and not about its lack of punctuation. They complained to the coaches saying, in effect, "You're not going to let her get away with this, are you?" The coaches did not let B.L. get a way with it. They suspended her from the cheer team for one year. B.L.'s parents protested their decision, but the coaches' superiors approved their decision at every level -- athletic director, principal, superintendent, school board.
But the ACLU took up B.L.'s case and got an order from the district court preliminarily enjoining the School District from suspending B.L. or indeed punishing her in any way for exercising her constitutional right of free speech. That injunction was upheld and made permanent in the District Court, the Third Circuit Court of Appeals, and the Supreme Court, 8-1, with Justice Thomas alone in dissent. Justice Thomas, you are not alone!
You wouldn't know it to read the three opinions in Mahanoy, but before B.L. tried out for the varsity team, she and her mother read and agreed to the team rules by signing the appropriate forms. Those rules provide, among other things: “There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.” The District Court, perhaps incoherently, held that the rules were neither vague nor overbroad, but they were unconstitutional as applied to B.L.'s Snap. The Third Circuit went farther, holding that schools cannot discipline students for off-campus speech. The Supreme Court, per Justice Breyer, rejected the Third Circuit's categorical ruling but found that B.L. had been engaged in constitutionally protected speech and had been unconstitutionally disciplined for criticizing her coaches.
Justice Breyer, I defend your right to retire when you are good and ready, but on this issue we must part company. She was not disciplined for criticizing her coaches. She wasn't criticizing anyone. She did not believe the words she wrote. She cried when she was suspended, and when asked in deposition why she cried, she said it was because "I really enjoy cheerleading." The Tinkers never apologized for wearing the armbands that led to their celebrated case. They never tearfully admitted that they really enjoyed the Vietnam War. B.L. was punished because she promised to behave a certain way in order to qualify to be a cheerleader. She broke that promise, and on this blog, there are consequences when people break their promises.
B.L. was disciplined for violating team rules against posting negative comments on the Internet about cheerleading. The School District felt confident that B.L.'s speech was unprotected because the Court had ruled in a prior case (Fraser) that profane speech is unprotected in the school context. True, Fraser was on school property at the time he delivered his speech, but technically, Frederick of Morse v. Frederick was off campus when he unfurled his immortal BONG HiTS 4 JESUS banner. And we are all eternally grateful to him. But the Supreme Court upheld his absurd 10-day suspension (Fraser got three, reduced to two for some reason), because, as Mr. Mackey would say, "Drugs are bad, mmkay?"
Look. As co-blogger Nancy Kim might point out, one might argue that, given the context, B.L. and her mother did not give meaningful consent when they signed the school's forms. Maybe there are some rights you cannot contract away, but there are lots of contexts in which people's employment limits their right to speak to the constitutional max. If we don't want public school children to surrender their constitutional rights at the schoolhouse gate, perhaps we shouldn't be searching their lockers or subjecting them to random drug tests so that they can play the saxophone in band. In any case, none of these arguments against enforcing the school's agreement with B.L. were considered in the Supreme Court because First Amendment rights matter to that Court, and in contexts like these, contracts rights don't matter at all. But in a world in which we balanced and mediated rights. cheerleaders could be disciplined in reasonable ways for violating team rules, and courts wouldn't need to get involved absent due process violations which clearly were not presented in B.L.'s case.
Jamal Greene briefly discusses this case and Fulton in an episode of the wonderful Strict Scrutiny podcast devoted to his book. He notes that Justice Breyer has long been committed to a more balanced approach to rights than most of his colleagues on the Court, and he seems to think that Breyer struck the right balance here. I share Professor Greene's general assessment of Justice Breyer's approach to rights, but I don't see much balancing in this case. However, Professor Greene concedes that a balancing approach to rights does not mean that we will always agree with the outcome. Still, Professor Greene divides the free speech in school cases into those involving "knuckleheads" and cases involving serious protest speech. He thinks B.L. was protesting her school's policies, and I can see how he would so conclude based on the Court's rendition of the case. But it just ain't so. She has far more in common with the "knuckleheads" than she does with the Tinkers. I hope that Professor Greene and I can agree that if students (or their parents) were not encouraged to think of themselves as endowed with unassailable fundamental rights, most if not all of these cases (Tinker needed to be heard) would disappear. B.L.'s parents would press and lobby. Eventually, the school would have reduced the suspension from one year to three games, and everyone would have moved on. Or the school would have insisted on its suspension, and everyone would have moved on.
*The Shadow Docket is a phrase coined by Will Baude and explored at great length by Steve Vladeck. They are two of the smartest people writing about constitutional law and related topics today, and I recommend all of their writings and doings. Both of them have excellent podcasts, and Will Baude explains the shadow docket on the first episode of Divided Argument, which he co-hosts with Dan Epps.
August 25, 2021 in Commentary, Recent Cases, Recent Scholarship, Sports, Web/Tech | Permalink | Comments (2)
Tuesday, August 24, 2021
Tuesday Top Ten - Contracts & Commercial Law Downloads for August 24, 2021
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 25 Jun 2021 - 24 Aug 2021| Rank | Paper | Downloads |
|---|---|---|
| 1. | 414 | |
| 2. | 106 | |
| 3. | 95 | |
| 4. | 75 | |
| 5. | 66 | |
| 6. | 54 | |
| 7. | 52 | |
| 8. | 45 | |
| 9. | 24 | |
| 10. | 20 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 25 Jun 2021 - 24 Aug 2021| Rank | Paper | Downloads |
|---|---|---|
| 1. | 414 | |
| 2. | 66 | |
| 3. | 46 | |
| 4. | 20 |
August 24, 2021 in Recent Scholarship | Permalink | Comments (0)
Editorial Assistance Available for Law Professors in Need!
One of the great things about working at the Valparaiso University Law School was its talented and dedicated staff. Among the most talented and dedicated was Karen Koelemeyer, who worked with the Law Review and with faculty on getting manuscripts in shape before final submission. I rarely send out an article for publication without first sending it to Karen for above- and below-the-line edits. Thanks to Karen, I have gotten by with my vintage 1999 knowledge of the Bluebook. I make a good faith effort to get my footnotes into shape, and I leave it to her to tidy up my mess. I have also relied on Karen to translate my footnotes in accordance with other citation styles. She knows many on her own, but if you have something exotic, just send her a style manual and she will do the rest.
Karen also has an outstanding eye for line edits. She has been editing legal manuscripts for decades. If something doesn't make sense to her, it likely doesn't make sense.
When Valparaiso University decided to close its law school, faculty and staff scattered to the four winds. Most of us landed well, but Karen's talents are uniquely suited to editing legal scholarship, and there is not a lot of demand for that skill in Northwest Indiana these days. Our loss can be your gain.
If you have a manuscript that you would like edited, contact Karen at [email protected] She can usually turn things around in a couple of weeks, but if she is backed up with other projects, she will certainly let you know. The cost will depend on the length of the manuscript and the state of your footnotes ex ante, but Karen will provide a reliable estimate.
August 24, 2021 in Law Schools, Miscellaneous | Permalink | Comments (0)
Sid DeLong on Debt Collection
A BRIEF, PROCEDURAL HISTORY OF DEBT COLLECTION FROM WAGER OF LAW TO DEBTOR’S PRISON
Sidney W. DeLong
Maitland said that the substance of English common law was secreted in the interstices of procedure. Procedure continues to reign supreme, especially in the law of debt collection.
Contract casebooks that begin with the history of contract law as it developed from covenant and debt invariably mention the procedural superiority of the writ of special assumpsit over the hoary action of debt.
A creditor bringing an action of debt faced a unique defense. Under the procedural rules of the English writ system, a claim of debt could be overcome by a procedural device known as wager of law, a defense that was guaranteed to Englishmen by Magna Carta. Blackstone described the process as follows:
The defendant is admonished by the judge of the nature and danger of a false oath. And if he still persists, he is to repeat this or the like oath: “Hear this, you justices, that I do not owe unto Richard Jones the sum of 10 pounds, nor any penny thereof, in the manner and form as the said Richard hath declared against me. So help me God.” and thereupon his eleven neighbors or compurgators shall avow upon their oaths, that they believe in their consciences that he sayeth the truth. 3 William Blackstone Commentaries on the Laws of England 343.
If these avowals were correctly pronounced, the court was required to ignore plaintiff’s evidence and enter judgment for defendant as a matter of law. The wager of law relied on the religious fear of the sin of perjury and may have worked well for a while. But the practice proved too successful in practice and soon professional swearers could be hired to defend against any creditor’s claim. Frustrated creditors and their lawyers sought an alternative writ to which wager of law was not a defense. Thus was born from trespass a new writ, special assumpsit, that provided a simpler way to enforce contracts and collect debts. The claim and defense were to be resolved by jury trial. The action of debt soon dwindled and died just as the action of contract took its place.
Wager of law was not without its admirers, however, including Blackstone and Maitland.
[Permitting debts to be enforced by special assumpsit infringed the procedural rights of defendants who] might henceforth find themselves charged with debts merely because a jury thought that such debts existed and could no longer relieve themselves by compurgatory oaths. Here there was a real problem. There was little law of evidence; lawyers had as yet but short experience of the delicate art of jury trials in such matters; written memoranda of simple contracts were often not to be had; parties were not competent witnesses; there was a deep feeling that the old procedure, of which wager of law was a part, was a sort of constitutional right of Englishmen; executors, particularly, feared that they would be charged with piles of alleged debts of which they knew, and could know, nothing.
Theodore F.T. Plucknett, A Concise History of the Common Law (5th Ed. 1956) 647 (emphasis added).
It seems entirely reasonable that a defendant should have been permitted to avoid a trial by ritual swearing if he would not have been permitted to testify in his own defense at the trial, at which the only evidence of the alleged debt might be the unrebutted testimony of the plaintiff’s (possibly) perjured witnesses.
But we now live in an age in which it is the sad office of contract law to serve in the cause of debt collection on a massive scale. Today the procedural scales tip sharply in favor of the creditor. Ever resourceful and creative, the creditors’ bar has devised a new procedural device to reinstitute debtor’s prison for non-payment of small debts.
It works like this: the creditor sues the debtor and obtains a default judgment. It then serves notice on the defendant for a deposition to examine his assets under F.R.C.P. 69. When the debtor fails to appear, as they always do, the creditor obtains from a compliant judge a judgment of contempt against the defendant for failing to appear at the hearing. An arrest warrant duly follows. This warrant lies dormant until the defendant is stopped for a traffic offense or otherwise comes to the notice of the police, at which time he is arrested for the crime of contempt of court. His bail is set at the amount of the debt. He stays inside until he pays up. The procedure is described here:
Dickens would have been proud.
And happily, despite Slade’s case, there is still a role for wager of law to play in modern civil procedure, albeit a role for creditors rather than for debtors. During the Great Recession, many homeowners defaulted on mortgage payments and were sued in foreclosure by plaintiffs claiming to be the assignees of their original notes and mortgages. But their notes and mortgages had been assigned and reassigned so many times and the assignments were so casual that the plaintiff seeking to enforce the debt no longer possessed the original promissory note. When defendants raised the “produce the note” defense, plaintiffs were stuck and the cases were dismissed.
Not to worry: the legislature and courts soon devised a way for such a plaintiff to wage its law: the plaintiff satisfied its obligation by filing an affidavit avowing that it had once been assigned the note but that it had been lost or destroyed. The modern wager of law is superior to the old, requiring only one witness rather than twelve and not requiring live testimony. And so the common law works itself pure.
August 24, 2021 in Commentary, Famous Cases | Permalink | Comments (0)
Monday, August 23, 2021
Guest Post by Tanya Monestier on Damages for Breach of a Forum Selection Clause
Damages for Breach of a Forum Selection Clause
Let’s say you and your counterparty agree to litigate all your disputes in New York (and only New York). Instead of following through with that promise, your counterparty sues you in California. What are your legal remedies? At this point, you might be thinking “Wait, I thought this was a contracts blog! This looks like it belongs on a civil procedure blog.” Bear with me … I promise I’m posting in the right place. Back to my hypo. Normally, you would go to California and seek to have the action dismissed or transferred, depending on whether you are in federal or state court. The net effect of either of these remedies is to force the action into the contractually-designated forum, New York.
But what of the expenses incurred in having the action dismissed or transferred? These expenses—in the form of attorneys’ fees—are not inconsequential. They often amount to tens or hundreds of thousands of dollars. Are these recoverable? Probably not. Attorneys fees and expenses associated with effecting a dismissal or transfer are not normally awarded to a party seeking to uphold a forum selection clause. The reason is twofold. First, the innocent party has already been made whole when a court dismisses or transfers an action. And second, awarding attorneys’ fees would run afoul of the American Rule, which holds that each side pays their own attorneys’ fees. My recent article, Damages for Breach of a Forum Selection Clause, published in the American Business Law Journal, challenges this common wisdom. It argues that courts can and should award damages in the form of attorneys’ fees when a party breaches a forum selection clause, and that such an award does not violate the American Rule.
The main reason courts give for refusing to award damages in the form of attorneys’ fees is that an award of damages would essentially amount to double recovery. Courts posit that when they transfer or dismiss an action on the basis of a forum selection clause, the innocent party has gotten what he wanted: to sue and be sued in the chosen forum. Essentially, courts view a dismissal or transfer as a form of specific performance. And normally, when you get specific performance, you don’t also get damages.
This logic is flawed. Enforcing a forum selection clause is not specific performance because it focuses on the wrong promise. It looks like specific performance because the net effect is similar. Enforcement through a transfer or dismissal essentially obligates a party to sue in the contractually chosen forum. Accordingly, it looks like the breaching party is specifically performing the contract. Not so. The essence of a forum selection clause is not simply that the parties sue in the designated forum, but that they not sue in other forums. In this sense, it is a restrictive covenant, akin to a covenant not to compete or a covenant to maintain confidentiality. Once a party has sued in another forum, he has breached the restrictive covenant and the breach cannot be undone. Specific performance would be impossible in this scenario because nothing is left to specifically perform. The fact that a breaching party is indirectly forced into the chosen forum after the fact does not mean that he has specifically performed. Specific performance would be not suing in contravention of the clause in the first place. As such, there is nothing incompatible about ordering a transfer or dismissal and awarding damages for the aggrieved party.
In fact, if courts do not award damages to the innocent party, they are allowing breaching parties to breach with impunity. Consider the issue from the perspective of the would-be breaching party. He knows that the contract provides, “all disputes shall be litigated exclusively in New York.” Nonetheless, for strategic reasons, he decides to sue in California instead. After lengthy litigation in California, the breaching party is “sent” to New York to litigate, as per his original promise. From the point of view of the breaching party, there is no downside to suing in the wrong forum. Best case scenario, California retains jurisdiction. Worst case scenario, he is sent to New York to do what he promised to do in the first place—litigate in New York. When the worst case scenario is simply being held to the terms of your bargain, there is no real disincentive to breach.
Well, what about the American Rule? Isn’t that a barrier to recovery of attorneys’ fees? No. The American Rule prohibits an award of damages to the prevailing party because it was the prevailing party. The American Rule does not speak to whether attorneys’ fees can be awarded as a measure of direct damages flowing from the original breach. The confusion here stems from the failure of courts to appreciate the distinction between direct and consequential damages. Normally, attorneys’ fees are not awarded because they constitute consequential damages. They are damages incurred with the innocent party securing other damages. For instance, in a Sales contract, an innocent buyer may seek cover damages, but may not seek the attorneys’ fees incurred in collecting those cover damages. The forum selection clause context is different. The attorneys’ fees here are not consequential damages (i.e., damages associated with recovering other damages). Rather, they are direct damages—i.e. damages that flow directly from the breach. In the words of one court, “… the fees [defendant] incurred in defending itself in [the non-chosen forum] were not ‘incident’ to the substantive litigation in which [defendant] was involved; they were a loss—the primary loss—occasioned directly by [plaintiff]’s breach of the clause.” Versatile Housewares & Gardening Sys., Inc. v. Thill Logistics, Inc., 819 F. Supp. 2d 230, 244 (S.D.N.Y. 2011). Accordingly, because damages for breach of a forum selection clause are direct (and not consequential) damages, they are not within the American Rule proscription.
There is a lot of other “fun” stuff in the article—including discussions of consumer contracts, international authority, and contractual fee-shifting provisions. But, for those who don’t have the time or inclination to do a deep dive on the issues, at least you’ve now read the cheat-sheet version of the article.
August 23, 2021 in Contract Profs, Recent Scholarship | Permalink | Comments (2)
Friday, August 20, 2021
Call for Papers: AALS: Section on Contracts at the 2022 Annual Meeting
The AALS Annual Meeting in January 2022 will be held virtually. If you are writing on either of the topics below and would like to speak at the annual meeting, please send your proposal to the Section Chair, Miriam Cherry at [email protected] on or before Monday, August 30, 2021.
Call for Papers
AALS Contracts Section
Section on Contracts – Panel
Title: “Current Events in the Contracts Course and in Contracts Scholarship”
Saturday, January 8, 2022
3:10pm-4:25pm
Description: This program will focus on the use of current events both in the contracts course and in contracts scholarship. The pandemic, protests for racial justice, and many other newsworthy events have prompted new lines of inquiry into established contract doctrines. For example, litigation around the pandemic has challenged the scope of force majeure clauses. The panelists will examine these as well as other newsworthy events, and discuss how they have been able to integrate current events into their teaching and scholarship. The use of current events can assist with student engagement in the course, and also help to spark new ideas for research. This panel also evokes larger questions: How do current events shape (or reshape) the law of contracts? Which recent events will fade away, and which will have lasting impact on practice, doctrine, and the content of the contracts course?
Section on Contracts – Pedagogy Panel (Co-Sponsored with the Section on Consumer & Commercial Law)
Title: Diversity, Equity, Inclusion, and the Teaching of Contracts and Commercial Law
Sunday, January 9
4:45-6pm
Description: Significant scholarship shows that diversity, equity, and inclusion are fundamental to our understanding of commercial law. Yet these issues are rarely highlighted in the teaching of contracts, consumer protection, and other areas of commercial law. This panel will focus on pedagogy centered on race, gender, disability, and sexual orientation, and will explore the implications for bringing diversity into the contracts course. This panel brings together a range of expert instructors to discuss their materials, methodologies, lesson plans, and class activities, in the hopes of enriching the teaching of all commercial law topics.
August 20, 2021 in Conferences, Contract Profs | Permalink | Comments (0)
Weekend Frivolity: Uzbekistan Cat Song
After a week of teaching in a crowded classroom as COVID spikes in the region, this video brings me an unreasonable amount of joy.
August 20, 2021 in Music | Permalink | Comments (1)
Thursday, August 19, 2021
Reflections on Socratic Teaching IIIB: Concluding Thoughts
This is the final post in a series inspired by Tanya Monestier's blog post on Socratic teaching. The first post is here. The second is here. The third is here.
The context in which I want to situate Socratic teaching is that I tell my students that each semester is a 14-week-long conversation among friends about the law (followed by a grueling exam). Joking. My final exam this year accounts for only 50% of the grade. Homework, class participation, and a midterm account for the other 50%. Most of the homework consists of multiple choice questions in which they must justify their answers. Homework is graded based on effort. Students who provide the correct answers for the correct reasons know the material and should feel encouraged. The homework is either easy for them or it forces them to do the work necessary to learn the material. Students who get the answers wrong despite their efforts get full credit and probably get more out of the exercise than those who do well. We go over the correct answers and why each incorrect answer is incorrect.
The classroom should always be a comfortable space for my students. I know that many people hate being in the spotlight and hate speaking in public. But it is something that almost all lawyers have to do as part of their work. My notion is not that students need to "get over" their anxieties; rather, I try to provide a space in which they can feel more comfortable speaking publicly and gain more confidence in their ability to do so. A lot of students also have math anxiety, but they will have clients who are after a monetary recovery, and so making sure they know how to calculate damages just comes with the territory.
Two additional anxiety-reducing techniques:
First, I tell students that they should not worry about embarrassing themselves in class. They may well feel embarrassed if they think they don't do well during a Socratic exchange, but this is momentary and it passes. Each student is so focused on their own performance, they pay no attention to the performance of others, beyond admiration for students who seem gifted at Socratic exchange. My strategy is to meet students where they are so that everybody can eventually feel like they are gifted. I also tell them that there can be value in getting things wrong. Nobody else remembers it, but you do. You remember what you said and that it was wrong. You learn what is right. Speaking in class is like malpractice insurance!
I know from personal experience that this is true, because I honestly have no recollection of anybody else doing badly during Socratic exchanges when I was a law student. I do remember some of my own gaffes. I now know what I got wrong and what I should have said. It's been 25 years, but I've retained that knowledge, gained through the experience of not doing well in a Socratic exchange. I don't know if my telling students that nobody will remember their failings helps. I hope it helps some.
Every semester, there are a few 1Ls (never 2Ls or 3Ls) who come to me after class to apologize for their poor performance during Socratic exchange. Unless the student was completely unprepared, I usually say, "You have nothing to apologize for. I don't remember things going badly." It's almost always true. I call on 20-30 students each session. If they speak, they get credit. We chat for a bit and I move on. Eventually patterns emerge and I learn how to calibrate my Socratic questioning to a student's skill set. Some take longer than others to find their rhythms, but almost all are capable of getting to the point where Socratic exchanges go smoothly.
Second, I encourage students to take very few notes during Socratic exchange. Mostly, we are just having a conversation. At the end of the conversation, I give them the take-aways. They can get those take-aways in their notes, if they like, but they don't necessarily need to do even that. Twice each semester, once before the midterm and once before the final exam, I give a comprehensive review session in which I speak an outline. The review session is recorded, so they can take notes at their own pace or just listen and compare my review to their outlines. I tell them all of the rules on which they will be tested at the level they will need to know to answer every question on the exam. E.g., I may tell them about the exception to the rule, but if I don't tell them about the exception to the exception, I will not be testing on that.
This may sound like spoon-feeding, but law exams are not so much about reciting rules as they are about figuring out how to apply rules or deciding which rules apply to new factual scenarios. This is where the "thinking on your feet" component of Socratic teaching meets up with skills that students will need, if not in practice, then at least for the bar over which they must leap in order to practice.
Finally, a note about efficiency. It is unquestionably true that I could impart black-letter law through a lecture much more quickly than we tease it out through Socratic dialogue. That's what I do in my review sessions. They take about three hours total. But I can do that, with confidence that the students will retain the contents of the lecture, only because of what we've accomplished through Socratic teaching. On the way, we've also covered all sorts of valuable but not testable topics as part of our 14-week conversation among friends about the law.
Since Professor Monestier inspired this series of posts, it makes sense to let her have the last word. She concludes here post with advice designed to calm the nerves of students who approach Socratic teaching with trepidation. I fully endorse these suggestions (with slight edits):
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A cold call does not telegraph how well you will ultimately do "on your feet" in the real world. It is not even close to the context in which you will be required to speak in the real world. . . .
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Over-preparing for fear of cold calls ultimately works to your detriment. Focus on preparing for the exam, not for cold calls. Try not to sit there in fear of being called on. If you're called on, deal with it then.
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Taking time to process things is completely normal. If it feels like other people are amazing in class and see things that you never would have thought of, just remember that you will get there too--maybe just a little slower. But who cares? All that matters is that you know the material for the exam (not that you know it when asked to recite it at the drop of a hat in class).
August 19, 2021 in Commentary, Teaching | Permalink | Comments (1)
Wednesday, August 18, 2021
(Belated) Tuesday Top Ten - Contracts & Commercial Law Downloads for August 18, 2021
In the absence of a prior "time is of the essence" clause, we today applying the maxim "better late than never" and present this week's edition of top downloads in our favorite fields. We note for folks hesitating whether to post that work-in-progress on SSRN that now is a great time to break in to the Private Law eJournal as it appears in somewhat reduced form this week. Enjoy!
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 19 Jun 2021 - 18 Aug 2021| Rank | Paper | Downloads |
|---|---|---|
| 1. | ||
| 2. | 100 | |
| 3. | 73 | |
| 4. | 60 | |
| 5. | 59 | |
| 6. | 57 | |
| 7. | 47 | |
| 8. | 43 | |
| 9. | 41 | |
| 10. | 30 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 19 Jun 2021 - 18 Aug 2021| Rank | Paper | Downloads |
|---|---|---|
| 1. | 414 | |
| 2. | 60 | |
| 3. | 57 | |
| 4. | 17 |
August 18, 2021 in Recent Scholarship | Permalink | Comments (0)
Guest Post from Charles Calleros on Socratic Teaching
Further Reflections on the Socratic Method
Thanks to Jeremy for his two posts on this important topic. His discussion spurs me to add a few thoughts and, I hope, to nudge others to chime in.
Context and Orientation
In his first post, Jeremy referred to the necessity and value of supplementing the Socratic case method with mini-lectures. That reminded me of lunch decades ago with a distinguished visitor who said that one of his most difficult pedagogic determinations for each class was “what to tell them up front and what to help them puzzle through on their own.”
Yes, of course, students need some context and orientation before they dive into specific cases or statutes. Summer associates, when assigned a research project in an unfamiliar field of law, will know from 1L Legal Research and Writing that their first step consists of preliminary reading in a secondary source to secure a general understanding of the issues that frequently arise, the general legal principles that have developed over time, and the new debates percolating in courts and legislatures. With that general background, the associate is equipped to research the law in the governing jurisdiction, and to understand its implications.
The same holds true for the study of cases in our classrooms. After all, everything in the 1L curriculum is presumably unfamiliar territory for most of our students. Throwing them into sometimes cryptic case law arguably might constitute hazing, in my view, unless we provide them with a brief introduction to that topic.
But providing that introduction in lecture form just before discussing the cases comes too late. We should provide that orientation prior to their briefing the cases, either in lecture at the end of the preceding class, or preferably by using a casebook that introduces each new topic with some helpful orienting text. Fortunately, many modern casebooks provide introductory text at the beginning of each section addressing a new topic, sometimes just a paragraph and sometimes several pages, as the topic requires.
Driving the Socractic Method/Case Method at Different Speeds
Most of the time, our case method will be deliberate and time-consuming, as it must be to address all the nuances of a case and to guide students through the analysis, as Jeremy describes. But each such discussion is like studying a single tree, and soon students risk losing sight of the forest for the trees. We must somehow find time for synthesis—for comparing cases that address the same issue.
First, you ask, how do we even fit enough cases into the casebook to allow for comparison and synthesis? We need only remember that “cases” including not just main cases, but also note cases and hypothetical cases, so long as students have the critical facts needed to analogize, distinguish, and synthesize. Some hypothetical cases can be dropped on the class during discussion of a case, but in they are much more effective if provided to the students in writing, as part of their preparation for class. Yes, thinking on one’s feet is a skill that students must develop, but they will all train for that in 1L moot court, and we’ll get more from them in our Contracts course if they have time to compare hypothetical cases prior to class. Where do we find suitable cases for comparison and synthesis? You can choose a casebook with a good collection of note cases, or factually rich exercises, or both. Alternatively, simply convey some of the hypos from your lecture notes in writing at least a day prior to class, so that they can think about these spin-offs ahead of time.
Once we have the cases in place, we can easily ask some fruitful questions: “If we accept the holding and reasoning of [that main case], should the case in Exercise 2.1 come out the same or differently, and why?” The case in Ex. 2.1 might be no more than a few sentences, revealing a few facts that depart from those of the main case. Those facts might clearly call for a different result, to make a fairly basic point about the main case and its reasoning. Or the hypothetical case in Ex. 2.1 might be carefully drafted to fall into a gray area, so that students can debate whether the reasoning of the main case ought to extend to the new one.
Once we go that far, sometimes one can step on the accelerator and jump right to the synthesis: “The next two cases address the same general issue, but they reach different results. Can you explain that? Are they applying different legal rules, motivated by different policy considerations? Or do they seem to apply a consistent legal approach but to facts that justify different conclusions?” Or, to really jump to the chase, sometimes I’ll point to two consecutive exercises in the casebook, each addressing the same issue but with facts that should point to different conclusions, and I’ll ask a meta question: “Why do you think I put those two hypos side by side? What am I trying to illustrate with those two cases?”
Beyond Professor/Student Dialogue
Let’s not forget how the engagement increases if we add some element other than a verbal line of communication between professor and student. Many of us have found that using simple props to simulate an exchange makes the example more immediate and more memorable. Dividing the students into pairs for negotiations, with instructions for each party, can drive the energy level of a large section through the roof. And, if a question seems to stump the class, we can break the intellectual logjam by asking the students to discuss it in small groups, while we patrol and eavesdrop until we overhear a student who offers an analysis that can be shared with the class and trigger comments from others.
Keep the Ideas Coming
I applaud Jeremy for raising the topic of teaching techniques and look forward to hearing tips from others.
August 18, 2021 in Commentary, Contract Profs, Teaching | Permalink | Comments (0)
Reflections on Socratic Teaching IIIA: Why Teach Socratically?
This is the third of three posts inspired by Tanya Monestier's blog post on Socratic teaching. The first post is here. The second is here. While you're thinking about this, you should check out the rest of Professor Monestier's blog, which has great content for law students and law professors alike.
As noted in Part I, Professor Monestier summarizes three common reasons why law professors use the Socratic method: tradition, it's more interesting than lectures, and it teaches students to "think of their feet." She presents three critiques of the Socratic method: its inefficient, it forces students to prepare for Socratic exchange rather than learn the law, and it can be demeaning or humiliating for students. As I am writing, I realize that I have too much to say for one post, so today, I will just focus on Professor Monestier's characterization of the reasons for teaching Socratically and the next post will address her criticisms.
In this two-part post, I respond to these claims, all of which are at least partially valid but which I view as pitfalls to be avoided rather than grounds for abandoning Socratic teaching. And again, it bears emphasizing that to the extent that Professor Monestier and I disagree, our differences are matters of degree rather than of kind. Both of us use the Socratic method. Both of us use other teaching approaches, but for me Socratic teaching is central, at least for teaching contracts.
First, tradition. I concede that I when I was a law student, I did enjoy feeling that I was part of an educational tradition. I was reading at least some cases that my law professors read when they were law students. I was becoming conversant with a canon; learning the lore along with the law is a rite of passage as one enters a professional community. I am aware that I was an aspiring law professor and so my experiences may not be representative of those of my classmates. Still, I can still partake of conversations with my friends who are practicing lawyers, confident that they will know what I am talking about when I joke about the good ship Peerless, and I can also assume that they will know what I am talking about when I reference Pennoyer v. Neff, the hairy hand, or Marbury v. Madison, even if none of those cases are relevant to our daily lives. And these experiences link us, even if we studied at different law schools in different generations. As Tevye could tell you, it is nice to be part of a community of the mind.
There are also downsides to tradition, especially a tradition that arose during the highpoints of Eurocentrism, colonialism, patriarchy, imperialism, and racism. One could chuck the tradition altogether, but I prefer to keep some of the traditional cases while introducing and encouraging critical perspectives on them and also supplementing them with newer, non-canonical cases and approaches.
But I did not adopt the Socratic approach because it was all I have ever known. I had twenty years of schooling before I set foot in law school, and I had taught undergraduates full-time for four years as well. Even teaching history to smallish sections of 30 students, I had mostly lectured, and I expect that my students' attention sometimes wandered during those 75 minutes of lecture. Socratic teaching was a revelation to me -- if you move quickly through a large classroom and get a lot of students involved, they are far more likely to remain focused and alert. This is why I have reluctantly come around to cold-calling.
If you solicit their opinions and take those opinions seriously, Socratic exchange can be exciting and empowering for students. When I was in law school, I made a comment in a seminar, and my teacher, Ronald Dworkin, responded by saying, "That's a perspicacious observation." That meant a lot to me, and there are lots of opportunities for exchanges like that in a Socratic classroom. I am not Ronald Dworkin, but then again, most of my students don't know who Ronald Dworkin was, and getting encouragement from me can mean as much to them as a few kind words from Ronald Dworkin meant to me.
I won't spend a lot of time on Professor Monestier's point that professors prefer Socratic teaching to lecture because lecture is boring. She doesn't really seem to dispute the point, and it seems undeniable to me that Socratic exchanges are more interesting, dynamic, and engaging than the typical lecture. But Professor Monestier jokes that Socratic teaching is more interesting for the professor. I think she underestimates how much we professors enjoy the sound of our own voices. No. Joking. The serious point is that I think she is a bit ungenerous here. I teach Socratically because I think it's better for students. That's the only reason. Lecturing is much easier. Contracts law doesn't change much. I could write a set of lectures and keep 90% of them year after year. But I never know what's going to happen in a Socratic classroom. It's a challenge, but a fun and rewarding one.
On a more practical note, I concluded early on that Socratic teaching is a great solution to the problem of teaching in a large-classroom setting. I have yet to be convinced that there is a better solution, although as I have said, I recognize the need to mix things up in the classroom. In addition, I give a lot of homework and provide written comments to students throughout the semester, so non-Socratic teaching continues outside of the classroom.
The third defense of the Socratic method that Professor Monestier discusses is the claim that it helps you to "think on your feet." I almost completely agree with her criticisms of that defense of the method, and the notion that Socratic teaching helps student think on their feet plays almost no role on my thinking about why it is a good teaching method. Some students will have jobs that will sometimes require them to come up with answers on the fly, but that skill is not important enough to justify the time devoted to Socratic exchanges.
One difference between my approach and Professor Monestier's is that I don't think of Socratic exchanges being about thinking on your feet as much as they are about synthesizing information in real time. That is something that lawyers need to do all the time. You read through some materials and you think about how to apply law or perhaps competing legal regimes to new facts. Doing so orally and public is not very important for most students, but knowing that you can do it and seeing how others do it is of supreme importance. Since I don't have the time or resources to do one-on-one tutorials with students, Socratic teaching is the next-best option.
Tune in tomorrow for (I hope) my last post in this series.
August 18, 2021 in Commentary, Teaching, Weblogs | Permalink | Comments (0)
Tuesday, August 17, 2021
Reflections on Socratic Teaching II: Metempsychosis
This is the second post in a series explaining my limited and idiosyncratic approach to Socratic teaching. The first post is here.
Here is the story that I tell myself and my students about Socratic dialogue. Socrates (or at least Plato's version of him) had a theory of education that assumed the transmigration of souls. The people whom Plato questioned (often called "stooges" but let's call them "interlocutors") did not think they knew the answers to his questions. Plato disagreed. He thought the interlocutors knew, because they had a huge store of knowledge from past lives. He believed that by asking them a series of questions cunningly designed to enable them to recall their past knowledge and then allowing them to use logic to draw conclusions based on that knowledge, they would arrive at something like wisdom. Plato's Socrates would not have to argue or convince them of anything; they would have convinced themselves by consulting their own internal resources.
I do not believe in the transmigration of souls. But I do believe that my students have done the reading. They may not have fully understood the reasoning of the cases they have read, but hopefully they briefed the case or took adequate notes so that they at least know the facts, the procedural history, the legal issues identified by the court, and who won. My hope is that in each Socratic exchange, by asking the right questions in the right order, I can help the student piece it all together and end up explaining the doctrine, in all its beauty and subtlety, even if the student could not have done that without Socratic prodding.
Sometimes, I get off to a bad start. I ask the wrong question or I ask the questions in the wrong order. The student is like a turtle that I have accidentally tipped onto its back. This is no cause for panic. I have to step back and establish through gentle Socratic prodding what the student does know about the case. And we begin the process again from there until the student, aided by my prodding, can right themselves, as illustrated below.
This process is hard. It takes patience, and it does not work in each instance. I have seen TERRIBLE Socratic classrooms in which some students are humiliated and others are bored and frustrated because they know that the students on call are getting everything wrong. Sometimes those classrooms are mine.
But most of the time things go pretty well. I find it especially rewarding when the student gets flipped over and is temporarily discomfited but can be righted and works their way to the correct legal analysis. There was a moment when the student might have doubted their abilities, but in the end, they figured it out, and not because somebody told them the right answer. They knew it all along but, like Plato's interlocutors, they didn't know they knew.
This is really valuable for lawyers-in-training because they are not far from the world in which they are going to be working without a net. I won't be there to point them in the right direction, and law firms don't have the resources these days to provide extensive mentorship or training. They will have to figure things out on their own, and I hope the Socratic method will help them to realize that they are up to the task.
Tomorrow, Part III: Responses to Tanya Monestier's criticisms of Socratic teaching.
August 17, 2021 in Commentary, Teaching | Permalink | Comments (1)
Monday, August 16, 2021
Return to Teaching: Reflections on Socratic Teaching I
After a hiatus from the blog and a brief break from teaching, I am brimming with blogable thoughts to share. If you are new to the blog this year, welcome. If you are already a regular reader, please recommend the blog to your students and contracts-loving friends and colleagues. Finally, if you think you are so inclined, the blog thrives on diversity of input, voices, and perspectives. We welcome guest posts from members of the contracts law teaching profession.
I recently came across a blog post by friend of the blog and Contracts Prof Tanya Monestier (right). Professor Monestier uses Socratic method but not exclusively and she lays out the pros and cons. Her opening comment is that the Socratic method is not inherently better than other approaches to teaching law, and although I too do not use Socratic method exclusively, I do think it is the best way to teach law in large, common-law doctrinal courses, at least for me. Professor Monestier did not learn law through the Socratic method, and clearly she is proof that other ways also work. Her post spurred me to re-examine and re-articulate my commitment to Socratic teaching. I share a version of this with my 1Ls at the beginning of each school year, but I am hoping that blogging about it will render my presentation less haphazard. There's so much to say.
I should state at the outset my view that every teacher has to find the teaching method that works for them. I have seen magnificent teaching that I could not possibly replicate. My teaching persona is different from my actual personality, but I can only stretch so far. I have come to accept that there are lots of different effective teaching methods (and at least as many that are ineffective); one has to marry up one's teaching persona with the right teaching method. Socratic teaching, often sandwiched between mini-lectures, supplemented with Limericks and PowerPoints, works for me. I should also note that my teaching method aims to meet my students where they are. I might teach differently if I taught at a T14 law school, but I've never had that experience. That said, I attended a T14 law school. The teaching there was exclusively Socratic in doctrinal courses, and even in some seminars.
As to the mini-lectures, the best teacher I ever had was Frank Cardulla, who taught me high school chemistry. Mr. Cardulla summarized good teaching as follows: "Tell 'em what you're gonna tell 'em, tell 'em, and then tell 'em what you told 'em." In Socratic teaching, I leave out the "tell 'em" part, because that's the part that they work out for themselves through the Socratic process. Still, because Socratic dialogue can be a bit ragged and students tune in and out while others are speaking, it's helpful to bring it all back together with a summary, often in the form of a PowerPoint slide featuring take-aways.
I've explained how Limericks fit into all of this here and the concept is summarized in a series of Limericks here. I won't repeat myself on the blog today.
I had plenty of education before law school, and I taught undergraduates for four years before I went to law school. Socratic teaching was a revelation to me when I first experienced it as 1L. Professor Monestier offers three explanations for the persistence of Socratic teaching: tradition, lecturing is boring/less interesting than dynamic exchanges with students, and it helps student develop public speaking skills or learn how to "think on their feet." She doesn't find these reasons justify the persistence of Socratic teaching given that: (1) Socratic teaching is "inefficient"; (2) thinking on your feet is only one of many lawyerly skills, and for many students it is not among the most important; and (3) Socratic teaching can be counter-productive because it causes so much anxiety and diverts students' energies in unproductive ways.
These are great criticisms of the Socratic method. My response is to work on improving Socratic techniques and students' understanding of the enterprise. I use a version of Socratic method because I think that active learning in the classroom setting, while perhaps not as efficient as lecture, is more valuable and effective than lectures (although I emphasize that I supplement Socratic teaching with lectures, break-out groups, non-Socratic discussion, formative assessments, and flipped classrooms).
I have adopted various mitigation strategies to head off student anxiety. I move fast so that I get between twenty and thirty students involved in each class session (not including volunteers), and I do not dwell on students' errors but move on to another student if the student is really at sea. This happens rarely with 1Ls, because they are highly motivated to keep on top of the material. Upper-level students sometimes try to get by without reading, but they also are less apt of be ashamed to admit they haven't read. To them, I say, "Okay, you're up next time," and they know I mean it. The main thing (and this is what Parts II and III will be about) is that Socratic teaching is, for me, about building students' self-confidence. It is not about putting them on the spot; it is about convincing them that they belong where they are.
This is the first in a three-part post, which will proceed as follows:
In Part II, I will set out my idiosyncratic take on the Socratic method as applied to law teaching and describe the range of ways in which Socratic exchange can be valuable as well as what one can do when they go wrong.
Finally, in Part III, I will return to Professor Monestier's comments and explain that my justifications for using the Socratic method differ from the one's she discusses and how I think it is possible to teach Socratically in ways that would address her concerns about the method. I think our differences are simply a matter of the degree to which we feel committed to Socratic teaching. Neither of us are teach purely though Socratic dialogue. Neither of us thinks it has no value.
August 16, 2021 in About this Blog, Contract Profs, Teaching, Weblogs | Permalink | Comments (0)
Tuesday, August 10, 2021
Tuesday Top Ten - Contracts & Commercial Law Downloads for August 10, 2021
Welcome to this week's Tuesday Top Ten -- er, only Top Five in the Law & Society/Private Law/Contracts eJournal. Good stuff on both lists, however, even in a slow posting season. Enjoy!
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 11 Jun 2021 - 10 Aug 2021| Rank | Paper | Downloads |
|---|---|---|
| 1. | 413 | |
| 2. | 102 | |
| 3. | 93 | |
| 4. | 57 | |
| 5. | 53 | |
| 6. | 50 | |
| 7. | 46 | |
| 8. | 36 | |
| 9. | 28 | |
| 10. | 27 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 11 Jun 2021 - 10 Aug 2021| Rank | Paper | Downloads |
|---|---|---|
| 1. | 413 | |
| 2. | 102 | |
| 3. | 50 | |
| 4. | 46 | |
| 5. | 28 |
August 10, 2021 in Recent Scholarship | Permalink
Tuesday, August 3, 2021
Tuesday Top Ten - Contracts & Commercial Law Downloads for August 3, 2021
Here at ContractsProf Blog, we're keep the Summer of Scholarship going with the latest Tuesday Top Ten in the objectively best fields of the law. Check out this week's list below:
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 04 Jun 2021 - 03 Aug 2021| Rank | Paper | Downloads |
|---|---|---|
| 1. | 554 | |
| 2. | 413 | |
| 3. | 179 | |
| 4. | 96 | |
| 5. | 87 | |
| 6. | 60 | |
| 7. | 57 | |
| 8. | 46 | |
| 9. | 45 | |
| 10. | 38 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 04 Jun 2021 - 03 Aug 2021| Rank | Paper | Downloads |
|---|---|---|
| 1. | 554 | |
| 2. | 413 | |
| 3. | 179 | |
| 4. | 96 | |
| 5. | 60 | |
| 6. | 46 | |
| 7. | 26 | |
| 8. | 21 |
August 3, 2021 in Recent Scholarship | Permalink | Comments (0)
Monday, August 2, 2021
Sid DeLong on the Scarlett Johansson Suit Against Disney/Marvel
INDUCING BREACH OF CONTRACT: A STUDY IN SCARLETT
The tort of inducing breach of contract continues to fascinate. In Periwinkle Entertainment Inc. v The Walt Disney Co., Scarlett Johansson (left), the star of Black Widow sued Disney for tortiously inducing Marvel Studios, a subsidiary of Disney, to breach its contract with her. The complaint alleges that Marvel entered into a contract with Johansson to act in Black Widow. Because Johansson’s compensation was largely to be determined by box office receipts, the contract required Marvel to make an exclusive “wide theatrical release” of the film for a period of time, “the standard exclusive theatrical window.” Instead, citing the COVID pandemic, Disney caused its subsidiary Marvel to release the movie simultaneously with Disney’s release of the movie through its streaming service, Disney+. Viewers were permitted to watch the movie without going to theaters, which Johansson alleges diverted revenues from theaters, costing her millions.
The complaint provokes several questions. Johansson sued only Disney, not Marvel. Normally, claims of tortious inducement against a third party are joined with claims for breach of contract against the contract breacher. Various reasons relating to preclusion on factual and legal issues dictate that the all defendants should be bound by the same action. Then why did Johansson not sue Marvel as well as Disney? Did its contract contain a mandatory arbitration clause (and if not, why not?)? If it did, then the arbitration clause, if well-drafted, should have included claims against Marvel’s parent, Disney. That shoe may drop later.
The complaint pleads two counts of tortiously inducing breach. Normally a parent company should not be liable for causing a subsidiary to breach a contract. A court usually ignores the separate identities of parent and sub in claims that have concerted activity as an element (cf. the “bathtub conspiracy” cases in antitrust). But here it seems that the parent had an economic motive to divert revenue from the sub to its streaming services and away from Johansson by causing the sub to delay theater release of the film, in violation to its contractual obligation to Johansson. That seems to justify treating Disney as a separate, third-party who is a stranger to the contract with the sub.
A final question concerns remedies. Perhaps because it was hastily drafted, the complaint is sparse on its remedial prayers, seeking only punitive damages in the separate counts, but adding a catch-all ad damnum for all money damages caused by the tort. Damages for inducement usually equal the expectation damages for breach of the underlying contract. But these expectation damages may be speculative, given the uncertainties of the imaginary box office receipts that would have occurred with a weeks-long exclusive theater release.
But the tort claim, if established, should also justify a restitutionary remedy against Disney, measured by its unjust enrichment resulting from its wrongdoing. That calculation too, may be complex, however if one must determine how much of its streaming revenues were caused by its wrongdoing.
If another reminder were needed, Periwinkle demonstrates anew that Contracts and Remedies students should be familiarized with the tort of wrongfully inducing breach of contract as another weapon in their litigation arsenal.
August 2, 2021 in Celebrity Contracts, Commentary, Current Affairs, Film, In the News, Recent Cases, Television | Permalink | Comments (0)
