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Archive for September, 2013

It’s that time of year when I attempt to introduce a new generation of unsuspecting 1L students ever so gently to the delights of Article 2 of the Uniform Commercial Code.  Yes, that thing that virtually all states have adopted and that governs ‘transactions in goods’.

As I hope my current class now understands, Article 2 is designed to be less fussy and more flexible than the common law on matters of contract formation.  It recognizes that in commercial reality the parties will often deal on their own printed forms of purchase order or order acknowledgment the fine print of which will differ.  Accordingly, UCC 2-207 displaces the so-called ‘mirror image’ rule which says that a contract is only formed where the offeree accepts the exact terms of the offer.  In so doing, the UCC changes the focus from contract formation to an inquiry into the terms on which the contract has been formed. What terms do we include?  Were the parties dealing on the buyer or seller’s terms or some combination of the two?

UCC 2-207 can be difficult to make sense out of.  For that reason I am always on the look out for useful materials that might be illuminating.  So, if you are struggling to get to grips with UCC 2-207, I recommend that you take a look at this, courtesy of our good friend theContractsGuy.  I hope it helps.

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Lemons

Richard Hermann of Concord Law School is a guru on the legal job market.  Author of the recently published From Lemons to Lemonade in the New Legal Job Market, reviewed here by Keith Lee, Hermann offers a refreshingly different perspective (it is possible to secure a position as an entry-attorney in the current market) and a range of resources and strategies. Hermann also blogs about law career opportunities and market trends here. It is never too soon for law students to start confronting the realities of the market – and the opportunities.  Hermann is an excellent guide so check him out.

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I am not a great fan of telling students to do something just because we’ve always done it that way. If you get me as an instructor you’ll hear me say this about outlining.  If traditional outlining in a linear form helps you learn then fine.  But if you are just outlining because everybody else is busily outlining and you never really use the work product in any way that helps you learn or apply the material then there may be little point.

Briefing cases is a bit like that.  It needs to be done with some clear and useful purpose in mind.  And once you’ve decided it’s useful and you understand why you are doing it, you’ll likely derive benefit from it and the benefit will increase as you practice and gain more experience.

Let me start with a word about case law generally.  If we’re not careful students can come to believe that the law is nothing but cases and litigation. It’s a weakness of the case method of instruction.  But the method has its strengths too.  We have to study cases because in a common law system they are primary sources of law.  We can’t learn any bedrock principles without cases and the case method forces us to engage directly with authoritative source material. Cases are not the only source of law of course.  Statutes are the other obvious example.  We’ve done a little statute reading already this semester in my 1L class (the meaning of “transactions in goods” in Article 2 of the UCC). It should be clear from this that statutes have to be interpreted and it’s ultimately courts that do the authoritative interpreting.

So cases cannot be avoided because they are primary sources of judge made law and authoritative interpretations of statutes. But – and it is a very big but – decided cases in the legal system are the tip of the iceberg.  Most activity governed by the civil law takes place outside the courtroom.  Most civil lawsuits that begin settle without a trial (and therefore without a judge having to make a decision or issue an opinion).  Commercial litigators will settle way more cases than they try during their careers and their motion practice will dwarf their trial practice.  And then there are the disputes that settle before a lawsuit is even commenced.  It follows that settlement is the norm and cases resolved by court decision after trial are outliers. The cases that are the most authoritative within the hierarchy of precedent – i.e. those decided by appellate courts – are even bigger outliers taking into consideration dispute resolution activity within the system as a whole.

In Contracts, I want students to think of cases as failures.  In other words, not only are we reading cases with the aim of identifying the issues, identifying the facts that the court regarded as essential to its decision, extracting the holding, and getting at the court’s reasoning. We are reading them to learn how litigation could have been avoided or, perhaps, how the litigation could have been conducted better from the perspective of one party or another.  This for the most part is a transactional mindset.  Transactional lawyers seek to draft agreements that reflect what their clients want to do and that seek to avoid and/or allocate foreseeable risks.  One question to ask ourselves when reading a case is: could we have changed the outcome or avoided the litigation altogether via clear drafting or different transacting behavior?  Take Lucy v Zehmer as an example.  The best evidence that Zehmer was making an offer was the language used in the signed writing.  Had he used less compelling language indicating merely that he would be prepared to negotiate and consider offers for the Ferguson farm he would have protected his and his wife’s position more successfully.

Case reading & briefing are activities that are more art than science.  The exercises that precede the case extracts in Schwartz & Riebe, the case book that I use, are designed to help students engage in the processes that make for a good brief.  A good brief is a useful aide memoire.  But it also needs to do more than jog the memory. It needs to be a tool that identifies possible lines of analysis for future use as you encounter new situations – in law school and, down the road, in the service of clients.  Needless to say there’s a wealth of useful material about case reading & briefing online.  For an excellent example try this courtesy of my friends at Law School Toolbox.

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