Wednesday, July 28, 2010
Jeff Lipshaw: Things You Ought To Know If You Teach Contracts
I'm going to follow Paul Horwitz's lead and mix resources with opinion. This is simply one person's view; reasonable minds may differ and I invite debate!
- Contract creation (offer and acceptance, reliance, electronic contracting)
- Contract performance and interpretation (parol evidence, implied terms)
- Defenses (statute of frauds, unconscionability, duress, mistake, impossibility and frustration)
I'm not a coverage junkie, but even in a four-credit course, I'd try to make sure I did something in each of those units; depending on how fast you traverse the material, in a six-credit course you could even get to assignment and third party beneficiaries.
2. Consideration or remedies first?
The basic dichotomy in teaching contracts (and hence the approach of the casebooks) is whether you teach "legal enforceability" or "remedies" first. This is right up there with other crucial decisions like "paper or plastic." There's a rationale for each: teaching consideration first appeals to the theorists because it plumbs the question why and under what circumstances the state gets involved in enforcing promises at all. Teaching remedies first highlights the different aims of contract law – reliance interests, expectation interests, and restitution interests. Some of the most popular casebooks (Knapp, Crystal, and Prince, for example) take the former approach; the latter approach is classically Kingsfield because you start with cases like Hawkins v. McGee (what is the value of a good hand?) or Groves v. John Wunder (do you measure damages by the actual harm to the non-breaching party or by the literal terms of the contract?)
3. How much UCC and CISG?
This probably depends in part on whether you have a four-credit or six-credit course, and whether your curriculum (like Tulane's, for example) explicitly calls for teaching the UCC either in the second semester of the first year or as an upper level course. This is a matter of personal preference; there are some contracts professors who eschew much of "classical" contract law in favor of the UCC, even in the regular contracts class. I think there are some pieces of the UCC that you almost have to teach, like the battle of the forms under 2-207 (particularly as it now applies to shrink wrap or electronic contracting).
I'm going to go public and say that teaching the U.N. Convention on the International Sale of Goods (the international equivalent of the UCC) is, in my view, a "nice to do" but not a "gotta do." This is a somewhat politically incorrect view.
4. How much real world?
I'm also willing to go on record (having done it already) to say that nothing highlights the tension between the legal academy and the practicing profession as much as the subject of contract law. You can graduate from law school and actually use the doctrine you learn in torts, civil procedure, criminal law, etc. That is far less true of contracts. First, contract law as taught is really about contract litigation, not contract creation. Moreover, you can go thirty years in practice and never see a case or a transaction that invokes the law of consideration, offer and acceptance, duress, etc. I am generally disdainful of contract doctrine as a means of explaining what is actually going on in the business world. (See my article Models & Games, for example.) Although there are some admirable casebooks out there that attempt to do so (e.g. Epstein, Markell, & Ponoroff, Making and Doing Deals), my concern is that pushing traditional contract doctrine into a real business setting is a square peg in a round hole (the metaphor is apt for all sorts of reasons). You don't really teach the business world, and you don't really teach traditional doctrine. No, were it not for the bar exam and inertia (i.e., Langdell was a contracts teacher), we probably wouldn't bother with most of contract law as we presently teach it. Or, as I have often said, practice is 5% doctrine and 95% interpretation; the course is usually 95% doctrine and 5% interpretation.
I do not have a good answer for this. My inclination still is to disabuse students of the idea that what they are learning maps on the real world. It is more helpful to think of contract law as the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. Hence, teaching the subject, by my way of thinking, requires a jurisprudential approach, one that says "what you are about to learn is a particular way of modeling human interaction." Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No - an integrated law of contracts, if one exists, is a figment of the Langdellian or Willistonian or even the Corbinian or Llewellynian imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).
Having said that, particularly if you have the luxury of a six-credit course, interjecting classroom exercises that tie to the doctrine seems like a really good idea. There is a burgeoning industry in such exercises; see Resources below.
- Sign onto the list serv of the AALS Section on Contracts. Carol Chomsky at the University of Minnesota is the list serv administrator.
- Make sure that you are on the desk copy mailing list for contract law materials at Thomson West (West and Foundation Press), LexisNexis, and Aspen. You can only use one casebook, but the other books are rich with resources.
- Get the RSS feed for the ContractsProf Blog, edited by Frank Snyder at Texas Wesleyan, and ably assisted by Miriam Cherry (McGeorge), Meredith Miller (Touro), Keith Rowley (UNLV), and Jeremy Telman (Valparaiso).
- Immediately find out who Tina Stark (Emory) is, and why she is one of the most forward-thinking and innovative transactional law teachers in the country. Get yourself access to the Emory Exchange for Transactional Training Materials, which includes tips for integrating real world situations into the first year contracts course.
- The Legal Information Institute of the Cornell Law School maintains an online and cross-linked version of the UCC. (Note: the Cornell license doesn't include the comments so you have to get them elsewhere).
- The Pace Law maintains an online full text version of the United Nations Convention on the International Sale of Goods.
- Order a copy of Contract Stories, edited by my classmate Douglas Baird (Chicago), which contains essays providing the context of many of the chestnut cases.
- Attend the annual Spring Contracts Conference, an event instituted by a group of committed contracts professors, including Frank Snyder and Keith Rowley. I don't have a link for the upcoming conference to be held February18-19, 2011 at Stetson University (perhaps somebody can provide a link in the comments).
- Plan to attend Suffolk University Law School's March 25, 2011 daylong symposium in Boston to mark the thirtieth anniversary of the publication of Charles Fried's iconic "Contract as Promise. After reflections from Professor Fried, some of the academy's foremost contract theorists will offer papers and commentary, with ample opportunity for questions and discussion. Participants presently scheduled include the Honorable Richard Posner, Randy Barnett, Barbara Fried, T.M. Scanlon, Jean Braucher, Richard Craswell, Avery Katz, Henry Smith, Lisa Bernstein, Seana Shiffrin, Daniel Markovits, Juliet Kostritsky, John C.P. Goldberg, Rachel Arnow-Richman, Curtis Bridgeman, Nathan Oman, Roy Kreitner, Gregory Klass, Carol Chomsky, Jody Kraus, Alan Schwartz, and Robert Scott.
- You may or may not want to get familiar with some of the supplements. Brian Blum's Examples and Explanations (Aspen) is very popular. Keith Rowley's Questions and Answers: Contracts (LexisNexis) has lots of multiple-choice questions. I know there are lots of other good ones, and invite recommendations in the comments. (I try to keep an arm's-length relationship with the supplements, mainly because I don't want to have to try to explain what another professor means about a subject in addition to what I and my casebook are saying.) One huge benefit of getting on the desk copy mailing list is that you get these resources as well.
- One of the most helpful things for me was the session at the AALS Workshop for New Law Teachers on pedagogical methods other than Socratic or lecture (e.g., brainstorming or "pair-square-share).
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I didn't want to get into the business of evaluating casebooks, but on the subject of Point 4, the brand new book "Contracts: A Contemporary Approach" in the West Interactive Casebook Series, by Christina Kunz and Carol Chomsky, is worth taking a look at!
Posted by: Jeff Lipshaw | Jul 28, 2010 12:47:48 PM
The link to the Contracts Conference at Stetson on February 18th and 19th (formally the 6th Annual International Conference on Contracts), co-sponsored by Stetson and Texas Wesleyan, is www.law.stetson.edu/conferences/contracts.
Posted by: Jamie Fox | Dec 21, 2010 6:48:28 PM