A while ago I posted some brief thoughts on the case method of law school instruction.
One view I expressed in that post was as follows:
“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.”
This seemed to resonate with a number of you – especially with those of you who are fellow law profs or former students.
In the latest issue of the Journal of Legal Education, a quarterly publication of the Association of American Law Schools, there is a short piece by Marvin Chirelstein, a well known Emeritus Professor at Columbia Law School, that explores a related question. Why do we teach the cases that we teach? What informs the selection of cases and case extracts that we inflict upon our students?
Part of the answer appears to lie in a version of group think. There are numerous case books on the market that all give prominence to a handful of cases, e.g. Lucy v. Zehmer, Peevyhouse, Wood v. Lucy. These cases are memorable, suggests Professor Chirelstein, possibly because of their narrative value, possibly because of their ‘outright silliness’.
The simple truth is that a ‘canon’ of Contracts cases has emerged from which we appear to be loath to depart even though, to quote Chirelstein, “the decisions best remembered by our students are largely freaks – that is, single instances unlikely ever at any time to be repeated in the same form.”
Professor Larry Cunningham has demonstrated that parts of the canon do have considerable value in helping us to understand the stability of the common law and the continuing relevance of case precedents as tools for resolving modern day disputes. Nevertheless, readers will not be surprised to learn that I am sympathetic with Chirelstein’s own favoured selection criteria:
“The cases of my selection would have one consistent theme, to-wit, the inadequacy of legal draftsmanship. Under that heading, the relevant classroom questions would be:
- Why did the litigated issue arise?
- Could the problem have been foreseen?
- If foreseeable, could it have been dealt with through further negotiation despite some added cost (though less, presumably, than the cost of litigation)?
- Even if the answer to 2 and/or 3 is no, would there be any contractual means or mechanism that could have been adopted to deal with unforeseen or unresolved contingencies.”
Time to rethink the canon.