Category: Law School (Teaching)

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Contracts in the Real World – At Last, a Book for Modern Minds

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 More

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Dichotomies in Contract Theory and Doctrine

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.

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Contracts in the Real World and Contracts in Law School

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.

Read More

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Recommended Reading: Robert Kaczorowski’s “Fordham University School of Law: A History”

Ever since the inception of the recession, we have been embroiled in a conversation about legal education–its costs, value, and flaws.  There has been much controversy, some informed and some uninformed about the need for reforms in legal education and ways forward.  Amidst this debate, legal historian Robert Kaczorowski has written a brilliant and engrossing history of Fordham Law School, one that highlights, among many issues, the struggles that law schools have with their universities about the funds they generate.  As Kaczorowski’s book “Fordham University School of Law: A History” highlights, universities see their law schools as cash cows, siphoning away their funding for the main university and taking away those funds from the law school.  Legal reform amidst that continuing state of affairs is a fraught enterprise, indeed.  Of the book, esteemed legal historian William Nelson (NYU) writes:

One of the best books ever written on American legal education.  Besides documenting the history of Fordham Law, Kaczorowski makes three major contributions to the knowledge of legal education’s history.  First, the book documents why large numbers of late-nineteenth and early-twentieth-century immigrants and their children needed the founding of a Catholic law school.  Second, it documents the factors that produce greatness in a law school.  Third, it traces a conflict over the funding of law school.  No other work has addressed these issues in depth.  Kaczorowski has done a remarkable job.

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Excerpts from My Upcoming Book, The Law Student’s Guide to Being on Call (Part I of II)

Chapter One: A Field Guide to the American Law Professor

Success while “on call” requires, as a threshold matter, an understanding of the different types of American law professors you may encounter in the field. . . .  There exist five principal species.  Each can be identified by the distinctive manner in which it calls on students, if at all.  The first three species fall within the Socratus genus; the last two occupy genera of their own . . .

The Alphabetical-Order Professor (Socratus Abcdelis): As its Latin name connotes, this species of law professor calls on students in alphabetical order.  (There also have been unconfirmed sightings of a subspecies of Socratus Abcdelis that calls on students in reverse alphabetical order.) Members of this species are relatively harmless, since their call order is simple to predict. Furthermore, once a member of this species has interacted with a student, it rarely initiates a repeat contact. WARNING: These creatures tend to grow dangerous when they encounter unprepared students. Also, if a member of this species forgets to bring its enrollment roster to class, it may mutate into the far more unpredictable Socratus Chaotis, discussed below.

The Panel Professor (Socratus Panelis): This species of professor prefers to divide its classes into several “panels,” of which only one will be on call at a given time. Like Socratus Abcdelis, there exist few reports of fatal injuries due to contacts with this species, since students can anticipate these encounters and prepare accordingly.  As with Socratus Abcdelis, the greatest danger associated with this species involves the efforts of other students to avoid them. Cases have been reported where seemingly “safe” students have been placed on call due to the sudden, unanticipated absences of several peers situated alphabetically ahead of them, or the entire remainder of a large on-call panel. For advice on how to handle an emergency situation of this type, see Chapter Eight, “Threading the Needle: Reconciling ‘Passing’ with Getting a Recommendation,” and Chapter Eleven, “How to Exit a Classroom Silently.”

The Random-Order Professor (Socratus Chaotis): Whereas Socratus Abcdelis and Socratus Panelis tend to seek out and cultivate orderly habitats, Socratus Chaotis thrives on the uncertainty created by a random calling scheme. The unpredictable behavior of this species forces students to choose among three unpalatable options: (1) full preparation for each and every class; (2) skipping all classes until the semester is at an end (a.k.a. “playing dead”); or (3) initiating preemptive contacts with Socratus Chaotis at instances of the student’s choosing, with the hope that the professor will tire of these encounters and move on to other students. Unfortunately, this last strategy fails to recognize that members of Socratus Chaotis often possess poor memories, and have been known to call on the same student at several different junctures across a semester, even as they seem to entirely forget about other students in a class.  This last point also represents this species’ saving grace; it is far more likely that a student will not be called on at all in a class taught by a Socratus Chaotis, than in a class taught by either a Socratus Abcdelis or a Socratus Panelis.

The Occasional-Question Professor (Semisocratus Spontaneosis): This species of professor does not fit neatly into either the Socratus genus discussed above, or the Verbosis genus related below. Members of Semisocratus Spontaneosis gravitate toward pure lecturing (the defining characteristic of Verbosis Oxfordis), but, in rare instances, also initiate contact with students. Typically, this interaction takes the form of spontaneous, open-ended questions that invite the careful evaluation of a complex hypothesis that the specimen has painstakingly laid out over the preceding half-hour. While these questions appear daunting, recently, scientists have developed a number of potential responses capable of application to virtually any such inquiry. Among them, “I agree with what you said earlier,” and “I agree with what you wrote on this topic” show special promise for even the most unprepared student.

The Lecturing Professor (Verbosis Oxfordis): Members of this genus fall outside of the scope of this Guide. For those of you who nevertheless wish to contribute to lectures given by this species of professor, we suggest that you check out our companion volumes, The Law Student’s Guide To Brownnosing and The Law Student’s Guide To Unpopularity.

Next: Excerpts from Chapter Four, “Stalling.”

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More Sophisticated Than What the Clientele Wants

While reading this post by Paul McGreal over at Faculty Lounge about the rising costs of legal education, I was struck by the unexpected relevance of political scientist John Zaller‘s work on media politics.  First, something about Paul’s post.  Paul underscores the argument that “the cost of legal education bears no necessary connection to what it would cost to provide a quality legal education in an efficient manner.”  He implicitly takes on a prominent theme in the scamlaw narrative that costs are driven up by the faculty “‘stealing’ from students for their own selfish desires” by engaging so much time and energy on academic scholarship.  Scholarship and even the related teaching of legal theory, according to a common narrative, diverts law school resources from the type of practical training—often argued to be applied skills and black-letter law—most valued by students as helpful to them in a challenging labor market.

I leave aside a defense of scholarship for the time being, but I think John Zaller would say that this debate over the place of legal scholarship is characteristic of a chronic tension that defines every professional field.  In his forthcoming manuscript A Theory of Media Politics, Zaller posits that members of a professional field seek to produce a more sophisticated product, based on their own professional values, than the typical consumer actually demands and is willing to purchase.  According to Zaller, “Every professional group wishes, if possible to have as much business as possible.  Yet they typically wish to offer products that are more sophisticated than what the clientele wants.”

As a result, professionals always confront a basic tension between market pressures from the typical consumer on one hand and their own desires to produce a more sophisticated product on the other hand.  Applying this notion to television news, Zaller finds that media markets with greater market competition among news outlets tend to feature “lower quality” local news (e.g., more tabloidish, less high-level reporting) compared to media markets with weaker market competition.  Zaller postulates a basic Rule of the Market—that increases in market competition lead to lower news quality—but that in the absence of competition, “journalists seem to be able to persuade owners to cast their fates with respectable ‘high-quality’ news.”  In my view, Zaller nails the dynamics of big city news media by astutely capturing this active tension between professional and market values.

You can see how Zaller’s ideas generalize to academic scholarship.  Read More

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Welcoming All 1Ls Across America!

Welcome all first-year law students to the wonderful world of law!  I teach Contracts at George Washington University (though I’m visiting at Fordham University this fall).  My students find it useful to begin our journey into that subject–which many find can be difficult–with a step back to look at the shape of the first-year law school curriculum.

It has not changed much in a century and does not vary widely among law schools today, from Cooley to Columbia.  I also try to be sure to connect the topics and examples appearing in today’s casesbooks (which have also not changed much over time and do not vary from school to school) to current topics in the news.  Students at other schools can share in these stories by obtaining a copy of my book, a fun supplement to the Contracts course,  Contracts in the Real World: Stories of Popular Contracts and Why They Matter.

Some thoughts about the shape of today’s 1L curriculum appear in the beginning of the book, including the following excerpt.  I summarize this for my students on our first day of class to give a sense of why today’s curriculum looks as it does and where contract law fits within it.

The curriculum dates to a legendary figure of nearly a century and a half ago.  In the 1870s, C. C. Langdell, as Dean of Harvard Law School, designed a simple way to organize the vast field of law still used to this day. He thought that underlying law’s complexity were a handful of basic ideas. Examining leading cases organized around these ideas would reveal law’s elements and rhythms.

Common law actions, meaning those courts resolve one by one, were of greatest interest to Langdell and dominate many 1L courses, including Contracts.  In the United States, following English traditions, common law is developed by state courts as disputes arise. Originally referring to law “common” to all citizens, today this system yields some variation among states, but general principles tend to prevail. Though the common law evolves as society and the economy change, judges draw on precedents when evaluating new cases—under the principle of stare decisis.

Langdell organized the welter of cases on numerous topics according to basic questions: how, what, and why. The question of how isolates the procedures private parties follow when resolving disputes using civil litigation. This is the practice of the lawsuit, arranged into the sub-field of study called civil procedure. Read More

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Teaching Criminal Procedure “Objectively”

The new semester is a little over a month away, and I have begun reflecting on whether I’d like to change certain teaching techniques from last year to this year. One of my main objectives as a professor is to foster a classroom environment where students feel free to disagree respectfully with each other and with me. One of the main ways to achieve this objective, I had believed, was to express my own personal opinions as little as possible.

This proved to be a difficult task, especially when teaching Criminal Procedure. Criminal Procedure is designed around assertions of constitutional rights based in the Fourth, Fifth, and Sixth Amendments. The Court’s most impassioned (and possibly compelling) language usually focuses on fears of an oppressive government and the importance of privacy rights. From Katz to Miranda to Brown v. Mississippi, students are exposed to police abuses and the need to prevent them. Of course, the importance of effective law enforcement is also highlighted, and the goals of law enforcement and the protections of the Constitution are not always in tension, but the course is very individual-rights centric.

Read More

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Preparing for the Three Ring Circus (But Not Yet)

Many, many thanks to Dan and the other CoOp regulars for having me back this month.  For Court watchers, June can feel like a vigil for the term’s final, big decisions, but this year that tension is heightened in anticipation of all that may occur in Florida v. U.S. Department of Health and Human Services.  To wit, SCOTUSblog has issued what is effectively an emergency preparedness plan.  I am working on a presentation and a workshop paper for two conferences related to the spending and healthcare action this term and will turn to my favorite topics soon.  But, as Gerard noted recently, many are suffering from healthcare reform overload, malaise, exhaustion… .  Accordingly, as I am coming up for air after grading 70 Constitutional Law essay exams (what is that, at least a thousand pages of grading?), I am thinking about the semester’s high and low points and ways in which I can improve my classroom performance. 

There is nothing like the marathon of grading to initiate this kind of reflection, which I think is a useful exercise before diving into the pleasures of summer research and conferences.  I imagine we have all experienced the gratification of seeing that our students have learned something well and rose to the challenge on an exam, and the disappointment of realizing that no one understood a word we said on a particular topic.  It can be hard to self-correct during the semester except to clear up the immediate points of confusion (though I do make notes in my syllabus when topics don’t proceed as planned).  But, the next year’s students can benefit from the prior year’s lessons, some of which can be learned from student evaluations, and some of which can result from ‘exam reflection.’  Taking a moment to reconsider can result in fruitful actions such as better exams, rewriting part of a syllabus, restructuring a class to introduce material better, considering supplemental materials, or revisiting casebook choices.  Sometimes a deliberate choice not to act occurs to see if the issue is a blip or a trend. 

In light of these musings, I have two questions, one general, and one more specific to Con Law:

1.  Do you use exams to reflect on the success of the semester’s teaching?  If so, how?  What kinds of issues do you think warrant attention given the limitations of the law school exam structure?

2.  Do you provide any background materials that are the equivalent of the civics lessons of yore?  Every year I have students come to my office concerned that they will be left behind in Con Law because they know virtually nothing about American history, politics, civics, or the Constitution.  My first assignment is always to read the Constitution, which levels the playing field a bit (funny how many poli sci majors think they know everything but have never actually read the document).  But, I have yet to find a good, concise background reader for my nervous con law newbies.  I don’t think this lack of background affects exam performance, but I would like to find a good resource.  Suggestions?

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Excuses

At Prawfs, Bill Araiza laments unprofessional students:

“So, let’s say a student contacts you, wanting to meet with you, his prof.  You set the meeting up — Wednesday at 11:00, say.  (By the way, these are not actual facts, Wednesday at 11:00 was not an actual meeting time, nor does this question have anything to do with anything that’s happened to me recently.  So there.)  The student doesn’t show.  The student then contacts you later, apologizing and giving, let’s say, what I would consider a bad reason or no reason at all.  The student asks for a new meeting date, soon (say, the next day).”

True: law students (like their professors) sometimes behave unprofessionally, and one particularly irritating variant of unprofessionalism is terrible excuses for trivial offenses.  Often, the excuse makes the conduct less forgivable.  So, I empathize with a “recent graduate” on Bill’s thread, who snarked “I thought professors didn’t really want to hear about my diarrhea/family issue/bad day that made me miss one meeting/class/clinic? I guess I should have been sending much longer, groveling emails.”  Indeed, I provide students free participation passes (a limited number in some classes, unlimited in others), but explicitly tell them not to tell me why they are passing.  Nonetheless, every year a student will provide an excuse that is so godawful that it makes me feel angry and resentful.  Such as: “I was unprepared and forgot to pass because I was watching March Madness, and I plan on being unprepared until it’s done.” (This was not an email I received, but it was close.)  I’ve never known what to do with these bad excuses on petty matters.  Not one seems significant enough to engage with:

If you write back, making a lesson out of it, you are a crotchety, tetchy, pompous pill.

If you don’t, and internalize the irritation, you will be a crotchety, tetchy, pompous pill.

Basically, a classic collective action problem.