Archive for the ‘Law School (Teaching)’ Category
posted by UCLA Law Review
UCLA Law Review, Volume 60 Symposium
Twenty-First Century Litigation: Pathologies and Possibilities
A Symposium in Honor of Stephen Yeazell
Volume 60, Issue 6 (September 2013)
Volume 61, Discourse
|Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again||Nora Freeman Engstrom||110|
|Of Groups, Class Actions, and Social Change: Reflections on From Medieval Group Litigation to the Modern Class Action||Deborah R. Hensler||126|
|Procedure and Society: An Essay for Steve Yeazell||William B. Rubenstein||136|
|What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict||David Alan Sklansky||150|
|Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law||Katherine V. W. Stone||164|
August 31, 2013 at 4:09 am Posted in: Civil Procedure, Corporate Law, Education, Law Rev (UCLA), Law School, Law School (Law Reviews), Law School (Scholarship), Law School (Teaching), Law Talk, Legal Theory Print This Post No Comments
posted by Brian Sheppard
One of the first things that people interested in applying to law faculty positions in both the United States and Canada will notice is that the Canadian application requirements are the more onerous of the two. In this post, I will focus on one way in which the Canadian approach is superior to the American approach, even if it is a bit more burdensome on applicants.
American law schools are generally content to let the capacities of the AALS’s Faculty Appointments Register website dictate their application requirements. Consequently, they have two requirements for those seeking to obtain an initial interview: a one-page “FAR form” and a C.V. Even listing these as separate requirements is somewhat misleading; other than the section for Teaching Preferences — in which applicants list up to five “preferred” subjects and five “other” subjects — everything on the FAR form is also present in the typical C.V.
Compare this to the Canadian application process. First, there is no Canadian analogue to the Faculty Appointments Register, so applicants send separate applications directly to each school that interests them. Moreover, the application requirements for each school are considerably more extensive than those for American schools, at least with respect to getting an initial interview. In addition to a C.V., a Canadian school typically requires the following: a detailed cover letter (or, in Canadian, a “covering letter”) which identifies the applicant’s areas of interest in research and teaching, a detailed research agenda, copies of all law and graduate transcripts, two sample publications, and a teaching dossier. While applicants might grumble about having to find their old transcripts, they still have the comfort of knowing that they will eventually have to provide almost all of those items to the American law schools that decide to interview them anyway. But not that last item — the teaching dossier. What is a teaching dossier? What are they all aboot?
It is a mistake is to assume that the teaching dossier is the Canadian equivalent of the FAR form’s Teaching Preferences section. One does not simply list ten courses and consider it a teaching dossier. Just a little online digging reveals a host of Canadian websites and workshops designed to walk people through the process of writing one (e.g., Toronto, Victoria, the Association of Universities and Colleges of Canada). It does not take long to realize that a dossier is not something that can be dashed off; the Queen’s University manual is nearly 50 pages long, and that might be even shorter than the instructions on the University of Toronto’s website.
Though I did not do a comprehensive survey, there is considerable uniformity among these guides. Generally, they recommend that dossiers have four main components: (1) Approach to Teaching (your teaching philosophy); (2) Summary of Teaching Responsibilities and Contributions (courses you have taught, methods you have used); (3) Evidence of Teaching Successes (course evaluations, analysis of the results of your teaching innovations); and (4) Professional Development (continuing education, mentorship).
The consistency in format might be a byproduct of the fact that a pedigreed source, the Canadian Association of University Teachers (CAUT), was the first to call for them, and its call became a focus of academic attention for several years before widespread action was taken. In the 1970s, a CAUT committee headed by Bruce Shore rallied around shared dissatisfaction with the practice of using student course evaluations as the primary metric for evaluating teaching quality. The committee wanted professors to be evaluated by “a summary of a professor’s major teaching accomplishments and strengths” as evidenced by multiple sources of information. Thus, the initial appeal of the dossier was that it accorded to professors the opportunity to put their best feet forward even in the face of less-than-stellar student evaluations. It gave them a chance to supplement those evaluations with justifications of teaching methods and goals, as well as personalized accounts of teaching successes.
Canadian schools did not warm up to dossiers until the early 1990s, after some American academics (e.g., Peter Seldin) and organizations such as the American Association of Higher Education picked up on CAUT’s idea. To quote a legendary Canadian troubadour, “Isn’t it ironic?” Since taking the idea back from the Americans, Canadian schools have run with it, outpacing CAUT’s original ambitions. For example, the original CAUT Guide recommended that dossiers be three pages long, but now the typical size is between six and twelve pages. Appendices can bump that total into the sixteen-page range. Although it is an outlier, one school saw fit to set a maximum of thirty-five pages, with a maximum total of twenty pages in appendices.
Today, the teaching dossier is not simply a way for professors to insulate themselves from the consequences of unfair student evaluations, it is also a way for faculties to get aspiring academics thinking about how to develop coherent and effective teaching strategies. When an applicant is forced to put as much effort into a teaching dossier as she put into a research agenda, it can lead her to believe that the employer values those two dimensions more or less equally.
It is fair to wonder whether the fact that American law schools do not require applicants (or even junior faculty in most cases) to draft teaching dossiers is a sign that they do not care as much about teaching as do their Canadian counterparts. It is possible, of course, that American law schools value teaching just as highly but fear that making teaching dossiers a necessary part of their applications would be too burdensome. Along similar lines, they might believe that applicants do not yet know enough about teaching to make the completion of a dossier worthwhile for either the applicant or the hiring committee. And to be fair, some Canadian schools require dossiers from applicants only “where appropriate,” meaning perhaps that those without teaching experience need not provide one. Whatever the merit of these arguments, there is a growing sense that American law schools must do a better job responding to the demand for excellent teaching. This sense is potentially at odds with reality; as there are law schools, such as my own, where teaching is of paramount importance in promotion and tenure decisions and where tremendous effort is put into classroom observation and evaluation. Still, making the teaching dossier a part of the application process is a low-cost measure that could send the signal that law schools are taking teaching seriously. And it might make better teachers too.
For those interested in learning more about the history of teaching dossiers, consider reading Christopher Knapper’s, The Origins of Teaching Portfolios, 6 Journal on Excellence in College Teaching 45–56 (1995).
posted by Lawrence Cunningham
Good news for law professors now submitting articles seeking offers from high-status journals: the importance of status in American law schools is over-rated and is about to be reduced. At least that is the urging of an American Bar Association Task Force Working Paper released last Friday addressing contemporary challenges in U.S. legal education.
Obsession with status is a culprit in the woes of today’s American law schools and faculty, the Working Paper finds. It charges law professors with pitching in to redress prevailing woes by working to reduce the role of status as a measure of personal and institutional success. The group’s only other specific recommendation for law faculty is to become informed about the topics the 34-page Working Paper chronicles so we might help out as needed by our schoools.
Much of the rest of the Working Paper is admirable, however, making the two specific recommendations to law faculty not only patently absurd but strange in context. After all, the Working Paper urges reform of ABA/AALS and state regulations with a view toward increasing the variety of law schools. It calls for serious changes in the way legal education is funded, though it admits that the complex system of education finance in the U.S. is deeply and broadly problematic and well beyond the influence of a single professional task force.
The Task Force urges US News to stop counting expenditure levels as a positive factor in its rankings. It stresses problems arising from a cost-based rather than market-based method of setting tuition. It notes a lack of business mind-sets among many in legal education. It questions the prevailing structure of professorial tenure; degree of scholarship orientation; professors having institutional leadership roles; and, yes, faculty culture that makes status an important measure of individual and institutional success.
But amid all that, law professors have just two tasks: becoming informed and demoting status. So there must be some hidden meaning to this idea of status as a culprit and the prescription for prawfs to reduce the importance of status as a measure of success. I am not sure what it is. The Working Paper does not explain or illustrate the concept of status or how to reduce its importance.
I’ll to try to be concrete about what it might mean. Given the other problems the Task Force sees with today’s law faculty culture (tenure, scholarship and leadership roles), I guess they are suggesting that faculty stop making it important whether: Read the rest of this post »
August 7, 2013 at 6:56 am Tags: ABA Task Force on the Future of Legal Education Posted in: Law School, Law School (Hiring & Laterals), Law School (Law Reviews), Law School (Rankings), Law School (Scholarship), Law School (Teaching) Print This Post 6 Comments
posted by Christine Chabot
Historically, skills training was not part of the education students received in law school. Things have changed, of course, and recently many have emphasized the need for practice-ready law grads. Incorporating skills training in substantive courses offers one promising option for improving students’ education. I’m prepping Sales (UCC Article 2) for the fall, and the course seems to lend itself well to a more skills-oriented approach. I plan to use problem-solving exercises and assignments which will not only teach students the law governing sales of goods, but will also enhance their statutory and contractual interpretation, drafting, and client-counseling skills. I have extensive experience litigating contractual disputes, so I know these skills are essential for commercial litigators. And they seem equally important to transactional lawyers.
July 31, 2013 at 11:23 am Tags: practice-ready law grads, Reforming legal education, skills training Posted in: Contract Law & Beyond, Law Practice, Law School, Law School (Teaching), Teaching, Uncategorized Print This Post 6 Comments
posted by Christine Chabot
One of the best parts of teaching a course you’ve already taught is updating course materials. I’m teaching Ad. Law again in the fall, and I’m considering adding a few relatively recent events as introductory discussion problems. The goal is to get students thinking about how process and agency structure shape substantive decisions. I tried to choose topics which do not require students to grasp complicated substantive issues:
1. The TSA seeks comments on across-the-board, whole body imaging for airline passengers. Here students can consider the interplay between notice-and-comment procedure and privacy objections to the imaging. I’ll also explore whether procedures (and concerns with use of imaging) should be different if TSA employees require this enhanced screening only on a case-by-case basis.
2. The IRS has been accused of unfairly targeting conservative groups who claim tax-exempt status. The issue highlights agency structure and raises questions of accountability in a system with multiple bureaucratic decision-makers. It also illuminates the tension between law and politics in agency decision-making, especially where agencies operate under vague rules such as the “social welfare” organization exemption.
I welcome any suggestions you may have.
posted by Deven Desai
Lawyers must write. Academics must also write. Gandhi built a newspaper to get his ideas to the people. Again, writing is important. And good writing is even more important if the writing is about, or flirts with, politics. I have noted my love of Orwell’s Politics and the English Language. A main point is that when one writes in simple, clear sentences, one cannot lie. Lies are quickly revealed. I came across this passage from Hemingway and noticed a similar sentiment. Like Orwell, Hemingway explains why poor writing can work for a time, but is not good writing:
This too to remember. If a man writes clearly enough any one can see if he fakes. If he mystifies to avoid a straight statement, which is very different from breaking so-called rules of syntax or grammar to make an effect which can be obtained in no other way, the writer takes a longer time to be known as a fake and other writers who are afflicted by the same necessity will praise him in their own defense. True mysticism should not be confused with incompetence in writing which seeks to mystify where there is no mystery but is really only the necessity to fake to cover lack of knowledge or the inability to state clearly. Mysticism implies a mystery and there are many mysteries; but incompetence is not one of them; nor is overwritten journalism made literature by the injection of a false epic quality. Remember this too: all bad writers are in love with the epic. Death in the Afternoon, p. 54; (2002-07-25). Ernest Hemingway on Writing (No Series) (Kindle Locations 848-854). Scribner. Kindle Edition.
posted by Lawrence Cunningham
Now, Gordon Gee, president of Ohio State, had just announced his retirement. This followed several bad jokes he’d made that had become public—about Notre Dame, Catholic priests and relative literacy across the Southeastern Conference. Besides encouraging his retirement, I understand that the board of trustees have now banned attempts at public joke telling on the OSU campus, including at conferences. Which was a relief, because I didn’t have any good jokes to start with, I told the audience.
After that obligatory bit of humor, it was on to remarks based on one of my recent books, The AIG Story, which I wrote along with the company’s long-time chairman Hank Greenberg. One of the book’s themes that I wanted to highlight is the dangers of a one-size-fits-all approach to corporate governance. For the assembled audience of young business law scholars, moreover, I wanted to intersect that with some thoughts on scholarly life, my notes on which follow.
It is wonderful to be able to write law review articles that other scholars respect as well as books for a general audience, I said. They are connected. Both require networks. I felt little need to tell those assembled about the value of participating in conferences; they were there. It takes work and is worthwhile.
Frank Partnoy reminds me of my advice to him when he entered teaching: hit on all cylinders. Teach well, help your students, write articles, books, op-eds, essays, white papers; give workshops and lectures; testify and run host conferences; meet the press; today I extol blogging as well—as I do here at Concurring Opinions. Read the rest of this post »
posted by Kaimipono D. Wenger
I held another “Wills Lab” (voluntary out-of-class practice-focused exercises) a few weeks ago. This time around, I was Andy Nicole Smith, and I needed someone to write my will for me. I did my best to blunder into the exact issues that caused so much confusion with the real Anna Nicole Smith will. My students set me straight. Nicely done.
How did we get to this point? It’s a long story. Read the rest of this post »
posted by William McGeveran
Thanks so much to the Concurring Opinions gang for having me back for another guest blogging stint. My semester has ended, so let the blogging begin!
Except … even though I have not received my students’ exams from the registrar yet, I am grading. Why? Because I assigned group projects during the semester and have not completed marking the last one. This raises an uncomfortable question for me: have I done the students any good by giving them a graded assignment during the semester if they don’t receive feedback on it until they are on the cusp of taking the final exam?
That really depends on the reasons for requiring “grading events” such as group projects, short papers, quizzes, midterms, or oral presentations during the semester. Like many of my colleagues, I have increasingly moved away from the traditional law school model that based the entire course grade on a high-stakes final examination, perhaps with some small adjustment for class participation. It seems clear to me that this is a good decision — even though it has meant a lot more grading (every professor’s least favorite task) and even though the institutional incentives for law faculty don’t really encourage or assist us to do depart from the tradition of the all-or-nothing final exam.
But I have to confess that my views of the reasons for continuing assessment are unsettled and even a little muddled. Here are the main candidates in my mind:
- Earlier graded events give students feedback about their understanding of the material and performance in the course while there is still time to correct it.
- Basing the course grade on more than one event reduces the “fluke factor” of a student who is ill or overtired or just not in top form the day of the final exam.
- The events themselves — say, a group project — serve valuable pedagogical goals and making them part of the grade ensures that students will take them seriously.
- Educational research shows that students learn more effectively if they synthesize knowledge as they go along rather than just doing a big outline at the end of the course, and graded events spur them to synthesize earlier.
- Basing the grade on different types of exercises rewards varied abilities beyond the particular (and slightly bizarre) skill set that excels at law school issue spotter exams.
Only the first of these requires me to return students’ grades sooner than I’ve managed to do for this group project. Of course, I am saying this partly to assuage my guilt over my own tardiness. But I also wonder how well we articulate the reasons for continuous assessment to our students — or even, frankly, to ourselves. I have now more carefully engaged in the sort of reflection about these goals that I should have gone through before the semester started. Now I know for next time that my answer is: all of the above.
Uh oh. I better get back to grading those group projects right now.
posted by Dave Hoffman
A student’s final law school GPA predicts bar passage better than other independent variables. But the relationship isn’t causal: raising the mean GPA of all students does not promote bar passage. Indeed, some investigators have suggested that the inverse is more likely to be true. When GPA rises for all students, individuals at the bottom of the class aren’t sufficiently signaled that their grades are really and truly bad, and consequently such badly-warned students don’t approach bar study with the requisite degree of seriousness. That is, if a school has a mean of a 3.3 at graduation, the bottom 20% of the class probably has GPA of around a B-. B- students may well say to themselves “sure, I’m at the bottom of the class, but I’m not a C student! I’m not in danger of failing the bar!” But they are. In this perverse way, raising the mean increases the rate at which weaker students fail the bar, even as overall, grades are positively correlated with passing!
The puzzle deepens. Students often argue that employers focus on mean GPA to the exclusion of class rank. Given that students are competing with other schools (nationally and regionally), there are race-to-the-bottom pressures on each law school’s curve generated by employment markets. A school that produces students at the 50th percentile with a 3.5 mean will obtain better employment outcomes than one that produces students at the 50th percentile with a 3.0 mean. All else equal, schools should reduce barriers to employment. (Of course this result depends on employers indeed acting in the irrational manner described – ignoring or downplaying class rank and focusing on absolute GPA. This would be very, very difficult to test empirically, though I imagine someone could give it a shot using nifty studies.)
You see the tension, right? A higher mean simultaneously could boost employment in the middle and higher end of the class while also depressing bar passage at the lower end of the class. These contrasting outcome effects turn on psychological biases resulting from overemphasizing raw grades over percentile rank, but simply providing class rank instead of grades would cause employers to balk. The tension may lead administrators and faculty to an uncomfortable question: when the two conflict, should we privilege bar passage over employment? What is the appropriate calculus? Could we live with one additional student failing the bar if two got a job?
My own view is that the price for bar failure is so high that the number of jobs won in this calculus would have to be unrealistically high. Consequently lower means are to be preferred to higher ones at some schools. What do you think?
posted by admin
Contracts teachers are asked to complete a brief online survey to help the planning and execution of a symposium Washington Law Review is preparing to host on the exciting new book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, by Lawrence A. Cunningham of George Washington University (published by Cambridge University Press in 2012).
This innovative text embraces a modern, narrative approach to contract law, exploring how cases ripped from the headlines of recent years often hinge on fundamental principles extracted from the classic cases that appear in contracts casebooks. Such an approach suggests new ways to imagine modern casebooks. In addition to an article by Prof. Cunningham, the WLR will publish in its December 2013 issue a half dozen pieces by many luminaries and notables, including:
Charles Knapp (NYU/Hastings)
Brian Bix (Minnesota)
Erik Gerding (Colorado)
Jake Linford (Florida State)
Jennifer Taub (Vermont)
To help these scholars and WLR editors with this effort, please fill out the online survey today!
posted by Aaron Saiger
The proximate cause of Danielle’s inviting me to guest-blog at Concurring Opinions was a celebration we had at Fordham of my colleague Robert Kaczorowski‘s publication of “Fordham University School of Law: A History,” the publication of which she had blogged here. The first half the book analyzes decanal administrations prior to those of Dean John Feerick, who remains an illustrious and beloved member of the Fordham faculty. This section of the book is remarkable for being the very opposite of “law porn“: it tells the story of several decades of a law school’s decline. This decline, Kaczorowski convincingly argues, was driven largely by the insatiable voraciousness with which the central university plundered the law school’s revenues (read student tuition) for its own, non-law purposes. Today, we call that plundering the “central services charge.” At many universities, not just my own, central charges are a major driver of law school costs.
The central services charge is related to the explosive growth of the administrative sector within universities. Read the rest of this post »
posted by Aaron Saiger
Last week both Frank and I blogged about the MOOC, the “massive open online course.” Also last week a substantial and prominent group of academics posted an open letter to the ABA that urged legal educators to consider, among other reforms, “building on the burgeoning promises of internet-distance education.” (The letter garnered positive press in diverse fora.) Might the MOOC platform be part of that “promise”?
posted by Bruce Boyden
Hello again Co-Op! I’m happy to be back for a short guest-blogging stint that was, er, supposed to start in January but Danielle graciously allowed me to postpone into February. I’m hoping to make up for the radio silence in the last couple of weeks of the month. Anyway, without further adieu, today’s topic: Over at Prawfsblawg, a vibrant debate is going on about the perennial subject of how to best teach law school. There’s a lot of good things to be said on both sides of the that debate. I’d like to call attention in particular to the comment by Ray Campbell, which is devoid of the absolutes that tend to abound in this area. I’ve expressed my own thoughts on this topic during previous go-rounds here and here and here.
But by “perennial,” I meant that this debate is really ancient. It far pre-dates the recent financial crisis and downturn in the legal market. It pre-dates the Carnegie Report in 2007. It pre-dates the MacCrate Report in 1992. It pre-dates the 1921 Carnegie Report. Indeed, it pre-dates most law schools altogether. Benjamin Spencer’s recent article on the skills vs. doctrine debate — which includes the question of who would be the best teachers for whatever it is the students should be learning — shows that it goes back to the 1870s, and an ABA Report that concluded that the existing method of study — one taught mainly by professors with substantial practice experience — was “too brief for useful purposes,” and that the schools were inviting “unfit” and unprepared students to fill their seats, were giving “examinations, which are such only in name,” and were allowing “degrees [to be] thrown away on the undeserving and the ignorant.”
I was reminded of the length of time these sorts of discussions have been going on when I recently stumbled across a letter from the man pictured above, Louis Brandeis, to Dean Christopher Columbus Langdell of Harvard Law School. Langdell, of course, is possibly the single person most responsible for the form of legal education we have today. It was his idea at Harvard to replace classes taught by practicing lawyers with classes taught by academic law professors, hired soon after graduation after perhaps only a short judicial clerkship, and to extend the length of the program from eighteen months to three years. In particular, it was Langdell’s idea to teach law as a science, devoted to learning the general principles that pervade the law as revealed in cases, but not necessarily constituting the law of any particular jurisdiction. That is, Harvard would focus on a generalized notion of tort law, contracts law, etc., one that had the advantage, as Charles Whitebread used to say about the Model Penal Code, of being equally the law nowhere.
Brandeis was a product of that model. He graduated from Harvard Law School in 1878, eight years after Langdell had started reforming Harvard and the first year the program was extended to three years. But a little more than ten years later he thought substantial alterations should be made to the curriculum. Brandeis worried, in effect, that Harvard Law students were not learning enough actual law:
To Christopher Columbus Langdell
December 30, 1889 Boston, Mass.
My Dear Prof. Langdell: My experience as one of the examiners for admission to the Suffolk bar has impressed upon me the importance of adding to the instruction at the School a thorough course on the peculiarities of Massachusetts law. I am aware that the introduction of such a course involves apparently a departure from the present policy of the School, but my experience and observation have convinced me that such a course would increase the usefullness as well as the membership of the School, and I therefore venture to submit to you with some detail my views of the proposed course, and the reasons which induce me to advocate it. Read the rest of this post »
posted by Lawrence Cunningham
Thanks to all participants for their wonderful contributions to the on-line symposium about Contracts in the Real World: Stories of Popular Contracts and Why They Matter. (To see all posts together, click the subject matter link below this or other posts for Symposium (Contracts Real World) or select that topic from the Categories menu on the sidebar at left.)
As the reviews suggest about readers finding the stories fun and the lessons enjoyable, you may be able to guess that I found researching and writing them fun and enjoyable too. Many of the stories were originally written, in a slightly different form, for this blog. Many of those stories generated productive comments.
I therefore must thank not only my fellow perma-bloggers here at Concurring Opinions for the opportunity to develop these ideas on this site, but also to many readers of the site for their thoughtful contributions. Double that gratitude for having allowed so much space to be devoted to the book these past several days.
Beyond contracts, several publishers and I believe that there is a series in this approach to the content and presentation of many law school subjects. That would certainly seem apt for other traditional 1L courses such as Torts, Property, Criminal Law and Civil Procedure. Read the rest of this post »
posted by Miriam Cherry
Aside from the deeper theoretical questions that Prof. Cunningham raises about contract theory in Contracts in the Real World, the heart of the book is in its fun, rollicking, and thoroughly modern examples.
Every contracts professor should take a look at this book to glean ideas for real-world examples and hypotheticals. Even if your textbook is stuck in the world of itinerant homesteaders, ships using astrolabes for navigation, and delayed industrial components (shout out to Kirksey, Raffles, and Hadley v. Baxendale!), your students will appreciate the use of some fun celebrity stories to liven up the classroom discussion.
The last time that I taught Contracts, for example, I did a series of hypotheticals based on Charlie Sheen’s contractual troubles. Based on Prof. Cunningham’s materials, I was able to structure some hypotheticals based on Sheen for my unit on conditions. The students seemed to appreciate it, and in fact, I have asked a student from my class last year to share her impressions with our blog readers. It appears here.
Miriam Cherry is Professor of Law at Saint Louis University School of Law. Some of her scholarship can be found at this link on SSRN.
posted by Miriam Cherry
In my view, modern technology has exacerbated the doctrinal tensions within contract law. Currently, clickwraps and browsewraps stretch the notion of mutual assent to its extreme, perhaps warping it in the process.
The recent literature on form contracting online has been substantial. While some of this literature sees online contracting as a natural inheritance to traditional contract law doctrine, other commentators have argued that contracting online has distorted the doctrine.
In Contracts in the Real World, Prof. Cunningham attempts to reconcile two recent cases, Specht v. Netscape and Pro-CD v. Zeidenberg, as part of his treatment of the theme of contract formation and mutual assent. As much as he tries, to me the cases still seem to be in conflict.
And if that weren’t enough, two well-known additional cases that dealt with late-arriving terms inside a computer box, Hill v. Gateway and Klocek v. Gateway, blatantly contradict each other, with contrary holdings on virtually identical facts.
In my mind, these contradictions reveal a mismatch in the doctrine and the reality on the ground. If there is no way for consumers to read or understand, or perhaps even see these clickwrap agreements, it hardly seems fair to bind consumers to them. As seen above, however, this leads to contradictory rulings.
Inconsistent holdings create the appearance of an arbitrary justice system, and these disputes, which are governed by the Uniform Commercial Code, should turn out in a uniform manner. When they do not, it only intensifies the debate about how to deal with online contracting and adhesion contracts online.
As we all continue to click our way through countless EULAs and are told that we are subject to “terms and conditions” that no reasonable consumer has had the time to read, I do not believe that it is enough to hope that antiquated laws will handle new situations.
Instead, I would suggest that we need to continue to build on the wisdom of contract law. While there is much to celebrate in the received wisdom of ancient doctrines, we must also recognize that it is the common law’s dynamism and adaptability that have led to its genius.
Miriam Cherry is Professor of Law at Saint Louis University School of Law. Some of her scholarship can be found at this link on SSRN.
posted by Ronald K.L. Collins
In a world where contract law, as typically taught, has one foot in the quicksand of the past, Lawrence Cunningham’s Contracts in the Real World is a most welcome and liberating alternative. Just consider the domain of what is commonly offered up:
* sales of “Blackacre” circa the 18th and 19th centuries,
* sailing ships destined for Liverpool circa 1864,
* carloads of Mason green fruit jars circa 1899,
* a promise to pay ₤100 to anyone who contracted the flu after using a “Carbolic Smoke Ball,” circa late 19th century,
* a 12-word “contract of sale” penned on the back of a “counter check,” circa early 1950s,
* a material breach case about a dispute over the brand of pipe (Reading or Cohoes) to be used in the construction of a home (circa early 1920s),
* representations made in 1959 in connection with a grocery “chain” begun in 1922 (by 2010 the “chain” was down to a lone store in Green Bay, Wisc.),
* promises re an option to buy a ranch, circa 1960s, and
* a 1965 contract involving the 78 year-old actress Shirley MacLaine (co-star of the 1960 movie The Apartment).
One need not be wed to Henry Ford’s maxim that “history is bunk” to appreciate that much of what is presented in contracts casebooks is past tense, past perfect, and past its time. While such an approach to teaching contracts may be a boon to slothful professors averse to updating their class notes, it does little to prepare today’s law students for the challenges facing them in the 2012 marketplace of digital deals.
Given the yester-world of many contracts casebooks, it is refreshing to have a book that brings modernity onto the stage of legal education. While Professor Cunningham pays due deference to the canonical cases (e.g., Lawrence v. Fox, N.Y., 1859), he does so in ways that reveal their contemporary relevance (e.g., as in how that precedent applied to a 2005 Wal-Mart dispute). Moreover, what is so stimulating about his book is that Cunningham highlights the law relevant to current business dealings of everyone from Bernard Madoff and Donald Trump to Lady Gaga and Paris Hilton, and 50 Cent, too. There is even a case involving a dispute over the rights to the HBO TV series The Sopranos.
Likewise, Cunningham both identifies and understands the real-world contexts of modern contract law involving everything from electronic transactions and confidentiality of information, to agreements re season tickets subscriptions for sports events, to entertainment contracts, to Amazon’s provider contracts, to any variety of contemporary non-disclosure agreements, et cetera.
In all of these ways and many others, Contracts in the Real World stands alone as a work that ushers the law of contracts into our times.
At the risk of sounding unduly laudatory, this book was a joy to read. Both stylistically and substantively, it is a work of admirable achievement without a real rival. When one offers such acclaim, there is a corresponding obligation to justify it. Hence, permit me to explain my evaluation, at least in summary fashion. Read the rest of this post »
posted by Miriam Cherry
In this blog post, I would like to examine some of the dichotomies in contract theory and doctrine that are noted in Professor Cunningham’s Contracts in the Real World. Some would claim that contract law is revolutionary; others would argue that it is reactionary. Compared to the status relationships of the Middle Ages, in which economic power was primarily determined through feudal or family relationships, contract and market relations promised a more egalitarian alternative.
In the classic text Ancient Law, Sir Henry Maine described the radical transformation from a feudal society governed by custom and hierarchy to one transformed by the industrial revolution, in which socio-economic mobility was not only possible, but which was expected. On the other hand, many today would argue that contract acts as a reactionary force, for enforcing bargains strictly as written could result in reinforcing the power imbalances that already exist in society.
Contracts in the Real World notes these dichotomies and strikes a middle ground between them. Prof. Cunningham characterizes the schism in contract law as a dispute between formalists and realists. This schism, he posits, applies even to foundational matters, such as the question of whether a contract has been formed. Prof. Cunningham notes that extreme formalists would champion a return to the days of the seal and enforce only those deals that meet the strict definitions of offer, acceptance, and consideration.
Realists, on the other hand, favor scrutinizing the context of every bargain, accepting the most informal of deals and even enforcing promises to make gifts as contracts. Thus the dichotomy between formalists and realists turns into a debate over the extent of government or court involvement in private ordering.
Throughout the book, Prof. Cunningham walks a tightrope between these positions, often making reference to contract law’s “sensible center,” and noting that with many common problems, the rules that have evolved over the years make a good deal of sense. In essence, he makes a case for the status quo, eschewing reform in either the direction of more government interference in contract, or government withdrawal from contract.
Prof. Cunningham suggests that current law strikes the proper balance between two rather extreme positions. The book extols the earthy pragmatism of old precedents and wise judges, and suggests that these doctrines will ultimately win out and reach a balance. In my next blog post, I will question whether this assertion holds true in the context of technological change.
Miriam Cherry is Professor of Law at Saint Louis University School of Law. Some of her scholarship can be found at this link on SSRN.
posted by Tom Lin
Thank you to our hosts at Concurring Opinions for inviting me to participate in this online book symposium. It is a pleasure for me to discuss Larry Cunningham’s engaging new book on contracts.
The title of Larry’s new book is Contracts in the Real World. Intentionally or not, the title suggests that there may exist another realm for contracts other than the real world, a realm that is perhaps more theoretical and not completely real. The alternate universe that most readily comes to mind is law school. Contracts in the real world exist in partial contrast to contracts in law school.
Contracts in the real world bind parties and counterparties to one another. Contracts in law school bind students to casebooks and laptops. Contracts in the real world frequently revolve around compensation, obligations, and duties. Contracts in law school frequently revolve around precedents, arguments, and defenses. Contracts in the real world are about contracts. Contracts in law school are about cases about contracts. Needless to say more, there exists a meaningful and significant gulf between contracts in the real world and contracts in law school.
Larry’s book serves a bridge across this gulf. Through wide-ranging popular stories about the prominent and the pedestrian crafted in accessible language yet not devoid of legal doctrine, the book connects contracts in law school with contracts in the real world. Law school concepts like offer, acceptance, mitigation, and assignment are illuminated by real world stories of popular contracts involving Pepsi ads, Dateline NBC, Redskins tickets, and Haagen-Dazs ice cream.
The conceptual meditations of contract scholars like Cardozo, Corbin, and Williston are expressed and explained in contract controversies involving well-known figures such as Michael Jordan, Maya Angelou, and Lady Gaga, and through common experiences like purchasing lottery tickets, signing mobile phone agreements, and buying football tickets online. Given the accessible language and popular stories, it is easy for the reader to be lulled into forgetting that they are reading and learning about the law, much in the same way that Tom Sawyer lulled his friends into whitewashing a fence by making it seem more like a treat than a chore.