I am pleased to announce the publication of the second edition of Michael Hunter Schwartz’s Contracts: A Context and Practice Casebook, the book from the Carolina Academic Press Context and Practice Series that I use in my Contracts class.
I have posted previously about my admiration for the first edition (which Dean Schwartz co-authored with Denise Riebe). It seems that Mae West may have had it right when she said that “flattery will get you everywhere” because Dean Schwartz asked me if I’d like to be his co-author on the second edition.
Of course, I jumped at the opportunity to collaborate with one of National Jurist Magazine’s top twenty-five most influential people in legal education and, thus far, things have worked out well. Our aim was to get the new edition out for Fall 2015 and we have succeeded in that.
Our approach to the second edition has been to not fix what ain’t broke. We’ve tuned the engine. We’ve cleaned up a few glitches. We’ve updated and we’ve tinkered. We’ve introduced a few new cases and a few new problems. As Mike says in the preface:
“[W]e have retained the first edition’s heavy emphasis on good teaching, multiple assessments, visual learning aids, professional identity development, and practical lawyering. We also have kept most of the cases from the first edition, and, as to the cases we did eliminate or replace, we moved them to the teachers’ edition so that no former user will suffer withdrawals.”
So, folks it’s over to you. Be you a student or a faculty user, please let us know what you like and what you hate about the new edition; what you can live with and what you can live without… We hope that it provides a foundation for a useful and enjoyable learning experience.
At this time of year, I begin to think about my next 1L class. Once again, I’m slated to teach Contracts in the Fall and I’m very pleased that Chicago-Kent continues to give me the gig. 1L Contracts teaching in the US is one of the most rewarding things I have done in my twenty year plus teaching career.
A recent article by Sean Darling-Hammond and Kristen Holmquist called Creating Wise Classrooms to Empower Diverse Law Students has got me thinking about how incoming students can best advance prepare for law school so as to hit the ground running come Fall. Ostensibly, the problem that Creating Wise Classrooms sets out to address is how law students from underrepresented groups often struggle in law school even though they enter with comparable accomplishments in high school and college as the rest of the entering class. According to the authors’ research, many Black, Latino, female, and low-income family students report that they suffer academically from “classroom…environments that [do] not encourage or allow students from diverse backgrounds to excel.” These are profound and important issues. The thesis of the article is that we need to “create wise classrooms” in order to address institutionalized features of the law school experience that work structurally in a way that unintentionally exacerbates what the authors describe as the “triple-threat of the solo status that accompanies being a member of an underrepresented group, the stereotype threat that accompanies being a member of a stereotyped group, and the challenges that attend lacking a background in the law before beginning law school.”
Creating Wise Classrooms has challenged me to think further about my own practice and, in particular, one teaching axiom that I have always tried to live by – that we should take our students as we find them and go from there. Of course, it is difficult to provide a truly differentiated educational experience with a class of 70 students. But we should always make the effort to work out the baseline from which students will then be adjusting and developing. 1L year is about adjustment and 1L grades are in truth the measurement of a process of adjustment. The As that I give out in December after one semester of law school are clearly not a good predictor of whether the ‘A’ students will turn out in ten years time to be better commercial lawyers than the students who get B minus. It follows then that the right approach is an inclusive approach that gives everyone a decent opportunity of making a reasonably quick adjustment.
Darling-Hammond and Holmquist have many useful and practical recommendations for how to go about creating the kind of learning environment that will ameliorate the “triple threat”. I am perhaps best qualified to say something about the third of the threats, namely “the challenges that attend lacking a background in the law before beginning law school.” The important thing here is for students to try to put in place some foundations before they arrive. I think there are three important foundational pieces: 1) general orientation and study strategies; 2) a very general knowledge of the legal system (which you otherwise tend to learn on the fly in your required classes; 3) emotional well being and building resilience.
If there are any soon to be new law students that want specific recommendations of readings in any of these areas, please drop me an email at firstname.lastname@example.org. I have a few ideas. Though, equally, I think it is important not to overload on too much “pre-school”. There are some useful resources at Law School Interactive for anyone who wants to start exploring.
Do not neglect my suggested third foundation. I was reminded again of why I hold it so dear when I read about this initiative from the University of Wisconsin Law School the other day. It is important that the emphasis in law school on the “left-brained” reasoning and analytical skills does not end up as its own structural impediment to the development of effective, holistic, empathetic lawyering. In that vein, I am a big fan of Paula Franzese’s A Short and Happy Guide to Being a Law Student and other books in the Short and Happy Guide book series.
Professors are wont to say that the worst part of their (our) job is grading. The subtext of the complaint is that grading large numbers of essays or exams is tedious and repetitive. A kind of necessary evil.
The problem is that grading is self-evidently very important because it involves decisions about student performance that can have potentially far reaching personal and professional consequences. And so in my view grading – which is part of a much wider process of student assessment – has to be thought of as a core professional and ethical responsibility rather than a distraction that (*shrugs shoulders*) just happens to go with the territory. If that’s right then we should be talking more about effective assessment design and assessment process. Perhaps because US higher education as I have experienced it assumes our professionalism by granting individual class instructors a large degree of autonomy over how we teach and assess, left to our own devices, we don’t seem to talk about student assessment much with each other (at all?). Maybe we should.
I’ve just finished grading my Spring semester classes and have begun to reflect on my own assessment design and process. In my Bankruptcy class I succumbed to giving the students an end-of-semester “high stakes” final. I don’t like “high stakes” finals as a general rule (my 1L contracts students get a graded midterm about which I may say more on another occasion). But this was a big class and I decided to trade off a more continuous approach to assessment and instead provide opportunities along the way (for example, through non-graded quizzes) for students to self-evaluate their own learning. I also made a very deliberate decision to test breadth rather than depth because the class was very much designed to provide a conceptual and functional understanding of how federal bankruptcy law works across the board. Neither high theory (which I can’t do) nor street level minutiae. Rather something in between. Or as a sociologist might say, neither macro nor micro but meso.
Despite my instinctive dislike of “high stakes” finals, I’m reasonably happy that the test instrument did a good job of assessing student learning benchmarking the results (once the cloak of anonymity is removed) against what I would describe as my “expectation curve”. My predicted grades on the expectation curve based on student performance in class, levels of attendance, and my impression of student engagement, were in the vast majority of cases no more than one increment off. There were outliers (a couple of students who did significantly better or worse than expected). There are always outliers. But overall the results were consistent with what I see when I base the grade on more than one or on multiple pieces of assessment.
Changing tack, I just read a piece by a college English professor, Raymond DiSanza. Professor DiSanza doesn’t give a “high stakes” final and experiences lack of student engagement with end-of-semester classes that don’t specifically relate to assessed work. He laments that: “In our culture of assessment and evaluation, students can’t see the value in learning anything on which they’re not going to be assessed.” This too is a familiar refrain. You might blame our students’ instrumentalism on the fact that a surfeit of standardized testing is part of their lived experience. You might blame our students’ instrumentalism (in the law school context at any rate) on the fact that they are paying tuition to study for a credential that is linked pretty directly to a career aspiration. And I am sceptical that there was ever some past golden age in which all students embraced the joy of learning for the sake of learning. To me, it conjures up the image of a leisured elite that could well afford to learn so as to learn, rather than learn so as to earn. I could be wrong about this but I think we should be careful not to stigmatize instrumentalism. It’s not so terrible.
More interesting to me is the wider implication of the DiSanza complaint that when students are assessment focused, it detracts from a less instrumental, more engaged, more “wholesome” kind of learning. The wider implication is that there is as much danger in over-assessment as there is in under-assessment. This was my experience in the UK where the Quality Assurance Agency for Higher Education rules the roost and dictates, or at least frames, much of what goes on in terms of teaching and assessment practice. There, multiple points of assessment are increasingly the norm. So, for example, my corporate law module had four points of assessment (a short IT-based research project, two 2,000 word problem solving essays, and a final exam that counted for no more than 50% of the grade). What tends to happen in that system is that students get amped up about the non-exam portions of the grade and will therefore tune out of your class, and their other classes, around the times when those assignments are due. Moreover, I had several students that absolutely convinced themselves that the quality of their grade depended on the non-exam portions because “I’m not very good at exams”. This added further to the angst and was a self-perception that I spent considerable time trying to dispel.
I wouldn’t want this to be read as some kind of advocacy piece in defence of the “high stakes” final. Finals have their downsides, of course. The obvious downside is the otherwise excellent student who gets sick or just has “a bad day at the office”. And to be effective and fair measures of student learning, instructors must design finals purposively and well with clear benchmarks in mind. But, if like me, you are not overly worried about student instrumentalism, a well-designed final that brings together a semester’s worth of material and assesses learning holistically may have as good a chance as anything else of concentrating students’ minds.
Professor Tina Stark is a pioneer in the teaching of transactional law. She just guest blogged over at ContractsProf Blog and the post is very important. She has constantly emphasized that contract drafting is pretty much beside the point if “you don’t know the law and understand the deal”.
The case she discusses in the blogpost is salutary. A pre-nuptial agreement was drafted in such a way that it only entitled the wife to a share in the proceeds of sale of the assets of the husband’s businesses. It did not entitle her to share in the proceeds of sale if he sold his stock in the businesses. The distinction between an asset sale and a share share is basic foundational stuff. Mergers & Acquistions 101. The lawyer who drafted the pre-nup was an experienced matrimonial lawyer.
Two takeaways from me. All lawyers, whatever their specialism, need a basic understanding of contracts, business, and deal structures. And so that’s what we should teach.
In the common law of contracts much significance is attributed to the distinction between bilateral contracts (formed by an exchange of promises) and unilateral contracts (formed by the exchange of a promise for the completion of an act or acts stipulated by the promisor). The distinction is still writ large in the Restatement (Second) of Contracts: see, e.g. § 30 (offer may invite or require acceptance to be made by affirmative answer in words, or by performing or refraining from performing a specified act); § 32 (in case of doubt an offer is interpreted as calling either for acceptance by promise or performance at the offeree’s election); § 45 (where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tenders a beginning of it). As a conceptual category, unilateral contracts may have some limited practical value in making enforceable promises that unequivocally require the promisee to engage in acts and, by implication, to incur the associated expenditure of time and resources. The classic example is the “reward” contract: (“I promise to pay $100 to the person who finds my lost dog Fido and returns him to me”). If someone goes to the trouble of searching for Fido and succeeds in finding and returning him to his owner, I guess that most of us would think it only right that the law should compel the promisor to pay up. So the concept does do some useful work.
However, to my mind, the common law overemphasizes the importance of unilateral contracts in ways that are unhelpful from both a teaching and learning and a real-world perspective. The binary structural distinction between bilateral and unilateral contracts implies that both concepts have equal practical value. Accordingly, if we’re not careful, students begin to see unilateral contracts everywhere when, in truth, they are outliers. As it happens, contract law is structurally biased in favour of bilateral contracts and this makes sense from a practical perspective. Most parties want to be sure that they are legally bound before they begin performing rather than expend time and resources in performing acts that will only result in formation of a contract at some future point. Even so, I frequently see students confuse “performance” of an act leading to the formation of a unilateral contract after completion of the act with “performance” of a legally binding obligation under a bilateral contract, a much more important and practically significant concept.
I suspect that we law teachers remain beguiled by unilateral contracts because much of the case law on the topic is so weird and colourful. The locus classicus of unilateral contract doctrine involved a late-nineteenth century English flu remedy, the carbolic smoke ball. More recent cases are equally off the wall. Examples include Leonard v. Pepsico, a case in which the plaintiff failed to enforce a Pepsi advert that jokingly suggested that Pepsi reward points could be redeemed for a harrier fighter jet. Then there is Kolodziej v. Mason, in which a law student plaintiff failed in his attempt to use unilateral contract theory to recover a million dollars from a criminal defense attorney having successfully demonstrated that it may have been possible for the attorney’s client, who was on trial for murder, to get from Atlanta airport to a specified hotel in less than half an hour, despite the attorney’s public statements to the contrary.
Don’t get me wrong. Weird and colourful cases have their pedagogical uses. But, to my mind, outlying cases are usually the product of outlying doctrine. So I hope my students will forgive me for siding with the famous American scholar and jurist, Karl Llewellyn, who wrote more than seventy years ago in the Yale Law Journal that unilateral contracts are rare and unimportant and should be relegated to the “freak tent”. You won’t be spending too much time on them with me!
Bob Denney of Robert Denney Associates, Inc posted his annual “what’s hot and what’s not in the legal profession” state of the union recently on attorneyatwork.com. It provides a useful snapshot of growth practice areas and other market information. Among the areas that are hot right now are: intellectual property, technology, labor & employment, and compliance (especially Foreign Corrupt Practices Act compliance). I’m happy that Chicago-Kent students have opportunities to study in all of these areas: see here, here, here, and here.