Those of you who read my previous posts about the teaching of contract drafting here and here may be interested in this post by Ken Adams. In it Ken wonders out loud about the merits of including a standalone contract drafting class in the law school curriculum rather than trying to integrate a drafting component into a specialist substantive transactional class such as ‘Advanced Real Estate’ or ‘Mergers & Acquisitions’. As the ultimate contract drafting guru, Ken is biased of course. But the case for the inclusion of such a class in a transactional law curriculum seems to me to be unassailable.
Well-taught specialist substantive transactional classes can be incredibly useful in highlighting the legal and commercial aspects of particular deal structures and in familiarizing students with transaction chronology and flow (the order of events, the documents that are conventionally used and so on). But familiarization, while useful, is one thing and the development of drafting skills is another. The latter in my view requires much more of a ‘legal writing’ style of pedagogy in which students learn the ‘building blocks’ including the various categories of contract language, before undertaking drafting assignments that involve scope for feedback on and further revision and improvement of the initial work product.
The deeper question is how best to design a curriculum that leads to the acquisition of a full range of transactional law knowledge and transactional lawyering competencies. The separate teaching of skills can have downsides in that skills acquisition can feel like it is taking place in a vacuum. But the attempt to integrate particular skills (e.g. interviewing, counseling, drafting, negotiating) into substantive classes may also sometimes be unsuccessful because there isn’t the time for students to acquire, practice and refine the skill systematically.
I think ultimately that all legal education needs to be outcome-led. What outcomes are we trying to achieve? What knowledge and competencies do ‘Day One’ lawyers need? A focus on outcomes is emerging as the core philosophy in debates about legal education in my home jurisdiction of England and Wales as witnessed by the recent Report of the Legal Education and Training Review. But even assuming that key stakeholders such as the ABA and the state bar associations could agree on a single set of desirable attributes that epitomizes the knowledgeable, competent & ethical ‘Day One’ lawyer this would still open questions of curriculum design of the sort that Ken’s post indirectly raises.