ContractsProf Blog

The Private Law Podcast Features Liam Murphy

I started law school in the Fall of 1996, visions of social justice, constitutional, international, and comparative law dancing in my head.  I knew I would have to take torts and criminal law in the first semester.  That would be diverting, I thought.  There was also something called civil procedure.  I had no idea what that was, and based on my grades in that course, that had not changed by the the end of my first year.  Contracts was a course about transactional law, I supposed.  It was for people who became lawyers so that they could make money.  I had no interest in that.

Dutifully, I showed up for class, and in walked Liam Murphy (right).  Liam was not what I had in mind when I imagined my contracts professor.  He was not a transactional lawyer.  He was a philosopher.  I don't know if he ever practiced law or even got a law license.  He was a pure academic, and he thought about contracts law the way I wanted to think about contracts law, at a time when I thought I would never want to think about contracts law.  He started in with the very basic premise that, at least in the United States, contracts law is about promises, and so we started talking right from the beginning about why we enforce some promises and not others. 

Suddenly, contracts law was not at all about commerce or transactional work.  It was about a very basic human interaction.  It was about obligations, moral and legal, and about why we think some promises entail moral obligations and why the law treats some of those moral obligations but not others as legal obligations.  Yes, we read cases and we learned doctrine, and yes, those cases mostly involved commercial transactions.  We also read a lot of economics and law literature about contracts.  But we never lost track of the basic questions with which we started.  For which promises should the law provide a remedy in case of breach, and what are our intuitions, moral, conventional, or pragmatic, about what those remedies should be?   

Oh, how I came to love my contracts class!  How happily I would return to that classroom and do it over again! 

Well, thanks to Felipe Jimenez's Private Law Podcast, I was able to bite into a madeleine and feel as though transported back through time and space into Vanderbilt Hall circa 1996-97.  The conversation begins with Liam's thoughts about tax law, moves to property, and then settles in on the nature of promise and contract.  

Highly recommended!

Kudos to Kim Krawiec, but . . .

Kim Krawiec (right) was, until recently, a friend of the blog.  And with good reason.  She does interesting work on contracts law.  Indeed, you can see some of her interesting work on contracts law here.  But note that "here" does not mean here.  Professor Krawiec has chosen to post contracts content on a rival blog.  Not even a contracts blog.  Does she not know that this blog, i.e., the ContractsProf Blog, is the world's premiere contracts law blog?

If you were to go over to that other blog, where Professor Krawiec posted her contracts law content, which you totally shouldn't do because it's not the premiere contracts law blog or even a contracts law blog at all, you might learn the following:

Two medical centers have brought suit against the National Kidney Register (NKR).  Both were being charged under their agreements with NKR for having a kidney deficit -- that is, they took more kidneys from the register than they added to it.  The agreement provides that NKR can charge medical centers $1000/kidney/month every month until they make up the deficit.  The case raises interesting questions about liquidated damages/penalty clauses.

We could tell you more, but we don't want to spoil it for you.  Actually,  we do.  The cases settled, so we'll never know how the court would have resolved the issue.  And that's all you would know if you had read Professor Krawiec's post, which you totally shouldn't do because we've told you everything you would get out of reading her post, which is excellent, by the way.  Unless you want the links that she provides to documents relevant to the cases.  

So, kudos to Professor Krawiec for a great post about contracts law.

Next time, post on the ContractsProf Blog.  

H/T John Wladis, still a friend of the blog.

We're #1

According to Feedspot, The ContractsProf Blog is the #1 contracts blog worldwide!

See you in the BCS, main contracts blog rivals!

Lighter blogging this week, cuz we're going to Disney World!

Contracts Prof Blunders into Constitutional Law

We take a break from our usual programming to provide this bit of shameless self-promotion:

Jeremy Telman on Eric Segall's Supreme Myths Podcast 

Or if you would like the full video experience (cat cameo included), there this version

 

 

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.

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.

Tips on Contracts Drafting

Can be found on Michael Goldblatt's Law Practice Tips blog here.

Cherry on Harris on Unconscionability in Contracts for Worker Training

Over at Jotwell, Miriam Cherry has a post up about Jonathan Harris's very timely piece, Unconscionability in Contracting for Worker Training, 72 Ala. L. Rev. __ (forthcoming, 2021), available at SSRN).  

In the article, Harris (pictured) looks at various training schemes that purport to assist new workers or job applicants as they enter the work force or transition to new work.  Specifically, Harris discusses two new developments.  First, training repayment agreements (TRA), require  employees to reimburse the employer for outside trainings if the employee quits or is fired before a fixed period of time elapses.  Secondm Income Sharing Agreements (ISAs), which require a trainee to pay a percentage of future income in exchange for the ability to participate in a computer coding course or program.   The possibilities for exploitation are palpable.  Read more over at Jotwell, or download the article.  It's what all the cool kids are reading.

Taboo Trades: Marijuana

Riddle me this: what is the opposite of the Bermuda Triangle?

Answer: Corona Winter in Oklahoma City.

Why?

Because when you combine munchies-inducing medical marijuana joints on every corner, easy access to Trader Joe's, and obstacles to exercise indoors or out, unwelcome things that disappeared last summer (like my love handles) return.

Which is just our way of saying that we have neglected to plug the on Taboo Trades podcast, hosted by Kim Krawiec (pictured, right) , which is about things we maybe shouldn't be selling but do anyway .  The latest episode, on Marijuana Legalization, is available.  Kim interviews Pat Oglesby on pot taxes.

Business Law Profs' Statement on Race/Racism in Business Law

Over at one of our sibling blogs on the LPBN, the Business Law Prof Blog, law profs can find a simple statement acknowledging the importance of race and racism to the study of business law.   It's a close enough thing to contracts for us to think it worthwhile to call to the attention of our readership.  Law profs are invited to add their names to the statement.

Looking for COVID Waivers in All the Wrong Places

Contracts Profs have been alerting one another to egregious COVID waivers.  Washburn Law's Andrea Boyack blogged here about the Kansas Board of Bar Examiners' demand, at the end of the linked document, that each bar taker "acknowledges and voluntarily assumes all risk of exposure to or infection with COVID-19 by attending the July 2020 Kansas administration of the Uniform Bar Examination."  Kansas is not alone.  According to Professor Boyack, "the Kansas waiver seems to be modeled on a similar document that North Carolina bar examiners provided to their examinees this year."  Other states have attempted similar moves.   Professor Boyack's post suggests that such waivers may not be binding, either because they are not supported by consideration (take that, Alan White!), or because they are extracted through duress and are unconscionable.

Think law graduates are sophisticated enough to negotiate this territory on their own?  How about law students?  According to Inside Higher Education, University of New Hampshire law students protested when faced with the following language in an "Informed Consent Agreement: “I assume the risks associated with being at the University of New Hampshire including the risk of exposure to COVID-19,” 

But law students are pretty well-positioned to organize opposition to such language.  What about undergraduates?  Inside Higher Education reports that some colleges are making their students sign COVID waivers as well.  Students wishing to return to campus at Bates College, for example, have to electronically sign the following statement: “I am voluntarily assuming any and all risks that notwithstanding the college’s best efforts to implement and require compliance with these prevention and mitigation measures I may be exposed to the coronavirus and may become ill with COVID-19, and that such exposure and illness may result in personal injury, illness, temporary or permanent disability, or even death.” 

Bates defends this language as giving students choice.  Faced with this choice, students may decide to stay away from campus, and that may be for the best.

 

Just a Link Before I Go

Great post on the Law and Political Economy take on Contracts from Luke Herrine. 

This post is part of a series on introducing critical perspectives, including critical race perspectives, into contracts teaching.  Other posts in the series include:

• Guest Post by Deborah Post on Williams v. Walker-Thomas
• Guest Post by Chaumtoli Huq, Part III: Counter-Hegemonic Narratives
• Guest Post by Chaumtoli Huq, Part II: Freedom to Contract and the Reasonable ManGuest Post by Chaumtoli Huq, Part I: The Decolonial Framework
• Guest Post by Deborah Zalesne, The (In)Visibility of Race in Contracts: Thoughts for Teachers
• What Should a Court Do in Response to Racist Contractual Threats? Wolf v. Marlton Corp.
• Guest Post by Charles Calleros: Raising Issues of Race, Ethnicity, and Culture in 1L Contracts: Language Barriers
• Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part II – Consideration
• Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part I – Mutual Assent
• Teaching Assistants, Emily Houh's Redemptive Theory of Contract Law

Recommended Reading from the Blogosphere!

Jessica Erickson is posting a series about physically-distant, remote, and hybrid teaching.  It's a great resource for those of us struggling to make the transition to teaching in the pandemic.

It's an impressive series of posts, and it has graphics!

Weekend Frivolity: Part of the World

Some of our readers might recognize this new feature of the Blog, "Weekend Frivolity" is ripped off form the frivolity segment of the National Security Law Podcast.  In this case, imitation is indeed the sincerest form of flattery.  If you aren't currently subscribing to the podcast, you should be, even if you aren't interested in National Security Law.  It is fun to listen to Bobby Chesney and Steve Vladeck argue about just about anything.

I'm tipping my hat extra hard in the post because I discovered this video on Bobby's Twitter feed.  It has something of an Austin feel to it, but I'm afraid I don't know if the Bar & Grill responsible for this video is an Austin joint.  Perhaps a knowledgeable reader can enlighten me in the comments!

 

Weekend Frivolity: Real-Life Zoom Meetings

We are taking a lesson from Steve Lubet and the Faculty Lounge Blog.  Since readership is down on the weekends, Steve posts music videos on the weekends.  Faculty Lounge fans understand that they are free to scroll past the music if all they are interested in is the blog's regular programming.  We hope that our readers will be equally indulgent.

Rather than music, we will try an experiment in which we share videos that relate to our joint experiences: as lawyers, as teachers, as academics, as people cooped up during a pandemic.  We hope that you enjoy!

 

Reports of Our Death Have Been Greatly Exaggerated

I am delighted to announce that I and my co-bloggers have decided to revive the blog.  We look forward to sharing new content with you.  Watch this space for contributions form Nancy Kim, Sidney DeLong, and other players to be named later.  You can also follow us on Twitter: @KProfsBlog

On Ambiguity: 80 Example Exercises from D.C. Toedt

Nothing communicates the meaning and effects of ambiguity like a good example. So how about eighty of them in one place? 

Our friend over at the On Contracts blog, D.C. Toedt (Houston), has generously posted a collection of 80 exercises illustrating textual ambiguity. The sources vary widely, ranging from legal and religious texts to news items, popular culture, and even comic strips. Toedt uses the exercises in his contract-drafting course, challenging students to rewrite to clarify the meaning. The examples would work well in teaching ambiguity and contract interpretation in the 1L doctrinal course, as well.   

And let's face it: In addition to being pedagogically useful, ambiguities can be downright funny. Enjoy the list! 

In which we are cited as evidence in a case

The life of a blogger can sometimes feel like toiling sometimes in relative obscurity. And then there's the moment when you get cited as evidence in a case!

A recent decision out of the District of Columbia in Mawakana v. Board of Trustees of the University of the District of Columbia, 14-cv-02069-ABJ, referenced ContractsProf Blog. The case was a tenure dispute between the plaintiff professor and the defendant university. The plaintiff alleged he was denied tenure because of racial discrimination. The defendant moved for summary judgment, which was granted. 

Part of the plaintiff's evidence was a number of favorable comments on his scholarship, including "honorable mention from ContractsProf Blog." The court cites to the plaintiff's opposition, which is sealed, so I can't see exactly what was stated about the entry. I found the school's write-up of it, but the link the school provides to the blog entry doesn't work for me (maybe my computer is just being fickle and you'll have better luck). 

Despite the favorable comments, including the ContractsProf Blog entry, the court noted that there were also less favorable comments about the plaintiff's scholarship (the court actually noted in a footnote that one of the reviewers did not give the ContractsProf Blog honorable mention "any weight"). The court also found that the favorable comments did not mean that the plaintiff's denial of tenure must have been based on racial discrimination. The court eventually concluded, after much analysis (a great deal of it redacted), that the plaintiff wished for the court "to weigh in on the merits of the University's academic judgments in a manner that is contrary to the legal principles governing these disputes." 

The court also found the plaintiff's contract claims to be time-barred, but, even if not time-barred, not supported by evidence. 

(This is not, btw, the first time we blogged about this case.)

h/t to Prof. Eric Goldman at Santa Clara for sending this case to our attention!

 

Lying about age in sports

I fell down a rabbit hole recently looking at athletes who had lied about their ages. You can find a flurry of pieces about this online, from lists purporting to gather names together (I found some here and here and here) to more in-depth examinations of the phenomenon (see here and here and here and here). I fell down the rabbit hole courtesy of stumbling across a Baseball Prospectus piece on Albert Pujols. I discovered that there had been a flurry of discussion around Pujols's age when the prospect of his next (and last) baseball contract was looming, as you can see here and here and here. I'd never paid much attention to this issue before but it's interesting to contemplate how it intersects with contract law. 

The McMansion Hell Dispute Was Really About Contracts

Zillow's cease-and-desist letter to popular Tumblr blog McMansion Hell --and its subsequent backing down from its position after the blogger secured representation from the Electronic Frontier Foundation --has been well-documented, including by such outlets as BBC News. However, a lot of outlets reported it as being a copyright dispute. While there was definitely a copyright angle to the disagreement--Zillow even alleged as such in its letter--the issue was really one of contract. After all, as many commentators pointed out, Zillow didn't even own the copyright in any of the photos. The true dispute, as Zillow conceded and EFF explained in its letter response, was over Zillow's terms of use. 

Zillow alleged that its terms of use prevented "reproducing, modifying, distributing, or otherwise creating derivative works from any portion of the Zillow site." Zillow seemed to be alleging that the blogger's parodies and commentaries of the photos on the site--otherwise easily protected by copyright's fair use doctrine--were prohibited by the terms of use. EFF fought back on this, though. EFF claimed that the blogger had never effectively assented to be bound by the website's terms of use, and that even if she had, the agreement's clause permitting modification without notice rendered the terms of use illusory and unenforceable. EFF also noted that contract doctrines have in the past restricted terms that restrict speech, at least in part due to public policy concerns. Finally, EFF raised the recently enacted Consumer Review Fairness Act of 2016, which voids contract provisions that attempt to prevent people from posting reviews, performance assessments, or other analyses of goods and services. The blogger's parodies of the real estate photographs on Zillow, according to EFF, are analyses of Zillow's services, and therefore Zillow cannot restrict them through its terms of use. 

Zillow backed off pretty quickly, claiming that it never intended to cause McMansion Hell to shut down, and McMansion Hell is back up, without having deleted any of the demanded photos. It seems like a victory for McMansion Hell and, more importantly, for individual speech. All of us spend a lot of time on websites with terms of use that we never bother to read. The quick reaction of many in the legal community to help McMansion Hell fight back, and the subsequent news coverage it received, is a nice reminder that not all contracts are automatically binding, especially not when criticism is involved. Hopefully other less high-profile recipients of dubious cease-and-desist letters can take heart from this story.