Contracts in the Real World and the Law School Curriculum
posted by Nancy S. Kim
There’s been a lot of noise recently about the law school curriculum and real world training. In Contracts courses, that typically means that we should give students experience reviewing and drafting actual agreements.
I think there’s another aspect of training that we need to provide students, and that’s to show them the relevance of the cases we assign from musty books, and show them how to apply those cases to new fact patterns. That’s where Professor Cunningham’s book, Contracts in the Real World, comes in.
It is chock full of fun contracts disputes ripped out of today’s headlines. Of course there’s the People magazine allure of reading about celebrities and their unreasonable demands and unbelievable predicaments. Cunningham’s book tells tales of love children and blackmail, bad bets and bad defenses.
It was so entertaining that I almost felt guilty reading it – which makes me think that my students will enjoy the engaging tales and humorous anecdotes just as much as I did. Cunningham does a great job of weaving old cases with new ones, and new cases with newer ones.
In showing how everything old is new again, Cunningham wages a strong case that contract law is alive and well. It made me feel that my chosen subject area was relevant and timely – and interesting. Sure, Contracts as a 1L course may not have the sex appeal of Con Law, or the life-and-death importance of Crim Law, but Cunningham shows that the subject can be intriguing just the same.
As Professor Collins put it (better and more eloquently) in his post in this symposium, what makes this book unique is not just its readability but that it places contracts within their business context. For students who haven’t yet worked on a deal or negotiated a contract, it helps them to understand abstract concepts to have some sort of setting, something they can imagine. When that setting is one that they’ve read about in the paper or heard in the news, it just makes it more fun.
I did have one minor quibble with the book, and it’s that Cunningham’s “alive and well” view of contracts was misleading with respect to one infamous case. Yes, I’m talking about the quick gloss given to ProCD v, Zeidenberg (and by extension, the slew of cases that followed in its wake).
Cunningham provides what could be interpreted as a rationale for ProCD, but I wish he would have been a bit more critical. I’m not so sure that the case can be justified doctrinally – Judge Easterbrook’s whole bit about ProCD being the master of the offer and the notice of terms in a box – it stretches the truth a bit much.
I’m not quibbling with the result in the case so much as the rationale, and I think the rationale matters for the simple reason that it establishes precedent. Precedent that’s been followed by too many other courts even where the facts don’t warrant it.
The court in ProCD could have enforced the contract against Zeidenberg under a quasi-contract theory or maybe an unfair competition claim (although I can’t recall off hand whether ProCD ever raised that). But the court didn’t, and now we’re stuck with “rolling contracts” and the contracting of everything online.
But Cunningham comes around in the next section when he acknowledges the challenges of applying old doctrine to new encounters. He comes down hard against those who would make blanket statements that website privacy policies cannot be contracts.
As Cunningham notes, “They can be enforceable contracts or promises when meeting traditional tests of manifested intention, assent, and either consideration or reliance.” I couldn’t agree more.
Contracts in the Real World does what may seem impossible to wary 1Ls – it makes an old topic like Contract law seem dynamic, fun – and relevant.
Nancy S. Kim is Professor of Law at California Western School of Law. Some her scholarship can be found here on SSRN.
October 17, 2012 at 11:30 am
Posted in: Symposium (Contracts Real World)
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Responses (4)
Lawrence Cunningham - October 17, 2012 at 3:03 pm
A.J.
It is not so much about celebrity deals per se. It is about the modern context. The contexts of many classic cases are not relevant today. The contexts of their modern counterparts are. It is harder to teach general principles from irrelevant contexts than from relevant ones.
Consider some of the archaic contexts in which many classic cases in today’s casebooks occurred:
commercial: sailing ships, gold prospecting, communications by handout or telex, itinerant (slave) farming;
personal: experimental skin grafting surgery, quack flu remedies, the novelty of promoting national sports events, abstinence clauses;
social and attitudinal: palimony, paternity, homosexuality, mental illness, gambling, drinking, the treatment of animals.
The old settings are gone, not relevant to what students have experienced or will practice. But the principles, as the modern stories show, remain relevant. That is the beauty and majesty of the common law of contracts.
Jake Linford - October 17, 2012 at 3:35 pm
Nancy,
I share some of your discomfort with ProCD, but I’ve tentatively concluded that Judge Easterbrook didn’t reach the wrong conclusion, he just got there the wrong way. He would have been on firmer ground to decide that Zeidenberg was the offeror and apply 2-207, instead of ignoring it. Under the interpretation of UCC 2-207(2) in Klocek, the shrinkwrap would have been an offer of additional terms. But comment 6 of 2-207 points out that “[i]f no answer is received within a reasonable time after additional terms are proposed, it is both fair and commercially sound to assume that their inclusion has been assented to.”
It would be easy to conclude that Zeidenberg’s use of the software, and especially the daily clicking of the clickwrap license, was sufficient at least to constitute acceptance, because Zeidenberg acted like he was bound by the clickwrap contract when he daily assented. This might also sufficient to form a contract under 2-207(3), if we treat the writings offered by ProCD, including its shrinkwrap and clickwrap licenses, as “terms on which the writings of the parties agree.”
* Faulty attribution: I feel like I discovered this analysis in an article, and now I don’t know whose. I don’t think this idea is original with me, but I find it persuasive. If you’ve seen it somewhere else, please let me know.
Nancy - October 17, 2012 at 6:05 pm
A.J.,
Some of my students might very well represent celebrities (my law school is based in Southern California….) Many of the others, however, don’t find Contracts relevant because they don’t think they are going to practice “contract law” – they plan to be criminal defense attorneys or litigators. (Of course, the truth is, that many of them may very well end up practicing “contract law” and I always point out that all of them will be dealing with contracts on some level). They take the course b/c it’s required and I think Larry’s book makes it relevant to their world. I agree, too, with Larry about importance of the modern context. The type of deals discussed in Larry’s book are closer to what my students will be dealing with than the arrival of cotton on a sailing vessel or the sale of a fertile cow. Even if not, simply making an abstract concept interesting makes it easier to learn. Retaining student attention is half the battle (maybe more).
Jake,
As my post stated, I am not necessarily in disagreement about the result, but the rationalization. I disagree though with your analysis of 2-207- I don’t think this is what’s meant by terms on which the writings of the parties agree (primarily b/c there was only 1 writing). I think a better course would have been a quasi contract theory.
Thanks for your comments.
Jake - October 17, 2012 at 9:34 pm
On relevance, shrinkwrap licenses, and the like — a heads up about another new book (forthcoming next month) that discusses these issues in a way that many law professors and students will find interesting: Prof Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law: http://press.princeton.edu/titles/9837.html
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