Kingsfield Doesn't Teach My Contracts Class: Using Contracts to Teach Contracts

Journal of Legal Education

Volumn 50, Issue 1, 2000, Pages 112-133

  Warkentine, Edith R ^a  

^a Western State University   (United States)

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EID: 0034420137     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (48)

1. See Phyllis G. Coleman & Robert M. Jarvis, Using Skills Training to Teach First Year Contracts, 44 Drake L. Rev. 725 (1996).
2. For other specific examples see id.; Kenney Hegland, Fun and Games in the First Year: Contracts by Roleplay, 31 J. Legal Educ. 534 (1981); Robert L. Misner, Teaching Contracts with Contracts, 28 J. Legal Educ. 550 (1977); Robert Whitman, Conducting Contract Negotiations: A Seminar on Legal Problems Exercise, 15 J. Legal Educ. 72 (1962).
3. The reference, of course, is to Section of Legal Education and Admissions to the Bar, American Bar Association, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Legal Education and Professional Development - An Educational Continuum (Chicago, 1992).
4. For a general discussion of such courses see John Mitchell et al., And Then Suddenly Seattle University Was on Its Way to a Parallel Integrative Curriculum, 2 Clinical L. Rev. 1 (1995).
5. Contrary to the repeated statements that "there are no definitions of legal analysis," I have found an abundance of attempts at definition. Among the most helpful discussions is Kurt M. Saunders & Linda Levine, Learning to Think Like a Lawyer, 29 U.S.F. L. Rev. 121, 127 (1994).
6. See Legal Method and Writing, 3d ed., 75 (New York, 1998).
7. See, e.g., Gordon A. MacLeod, Creative Problem-Solving - For Lawyers?1 16 J. Legal Educ. 198 (1963); Myron Moskovitz, Beyond the Case Method: It's Time to Teach with Problems, 42 J. Legal Educ. 241 (1992); Gregory L. Ogden, The Problem Method in Legal Education, 34 J. Legal Educ. 654 (1984); Roy T. Stuckey, Education for the Practice of Law The Times They Are A-Changin', 75 Neb. L. Rev. 648 (1996). For a bibliography of law review articles that explore the teaching of lawyering skills in the traditional, non-skills-oriented law courses, see Arturo Lopez Torres, MacCrate Goes to Law School: An Annotated Bibliography of Methods for Teaching Lawyering Skills in the Classroom, 77 Neb. L. Rev. 132 (1998).
8. 3d ed. (Gaithersburg, 1999). My critique of the book is meant to demonstrate that even a textbook that has tried to reduce reliance on appellate opinions falls short of providing a vehicle to assist students in integrating theory, doctrine, and practice. I salute the authors for trying to break away from more traditional approaches to casebook material.
9. One worthy exception is the teacher's manual for Arthur Rosett & Scott Burnham, Contract Law and Its Application, 5th ed. (New York, 1998). In that manual the authors note: "Almost every chapter in this book begins, ends or is built around a problem or drafting exercise. Some teachers have molded these stories into exercises in which students negotiate, write journals, draft contracts, and argue cases based on the problems in the test. Build your own problems and exercises that will get the students to invest time preparing to play a role, to draft a tough paragraph, and in doing so, to make contact with the materials at a deeper level." Teacher's Manual at 7.
10. One worthy exception is the teacher's manual for Arthur Rosett & Scott Burnham, Contract Law and Its Application, 5th ed. (New York, 1998). In that manual the authors note: "Almost every chapter in this book begins, ends or is built around a problem or drafting exercise. Some teachers have molded these stories into exercises in which students negotiate, write journals, draft contracts, and argue cases based on the problems in the test. Build your own problems and exercises that will get the students to invest time preparing to play a role, to draft a tough paragraph, and in doing so, to make contact with the materials at a deeper level." Teacher's Manual at 7.
11. Jay Feinman & Marc Feldman, Pedagogy and Politics, 73 Geo. L.J. 875, 903 n.68 (1985).
12. The variety is described in Jay Feinman, Simulations: An Introduction, 45 J. Legal Educ. 469 (1995).
13. See, e.g., articles cited in note 2 supra.
14. Torres, supra note 7, identifies 204 articles that discuss skills within a pedagogical context and describe how the instructor teaches or instills the skills in the classroom. Only a handful of these articles relate specifically to first-year Contracts. They include Charles Richard Calleros, Variations on the Problem Method in First-Year and Upper-Division Classes, 20 U.S.F. L. Rev. 455 (1986); Hegland, supra note 2; Jonathan M. Hyman, Discovery and Invention: The NITA Method in the Contracts Classroom, 66 Notre Dame L. Rev. 759 (1991); Justin Sweet, Contract Drafting: Seminar Style, 21 J. Legal Educ. 464 (1969).
15. See, e.g., E. Allan Farnsworth & William F. Young, Selections for Contracts (New York, 1998) (containing 51 pages of contract forms); Steven J. Burton & Melvin A. Eisenberg, Contract Law: Selected Source Materials (St. Paul, 1999) (containing 40 pages of contract forms). Both of these books are sold as supplements to casebooks; how and to what extent students actually use these pages of the supplements is up to the instructor.
16. See, e.g., E. Allan Farnsworth & William F. Young, Selections for Contracts (New York, 1998) (containing 51 pages of contract forms); Steven J. Burton & Melvin A. Eisenberg, Contract Law: Selected Source Materials (St. Paul, 1999) (containing 40 pages of contract forms). Both of these books are sold as supplements to casebooks; how and to what extent students actually use these pages of the supplements is up to the instructor.
17. 2d ed. (Charlottesville, 1993). In the teacher's manual, Burnham explains the goals of the book: to exemplify the principles of contract law, to illustrate the principles of contract law in a planning context, and to develop the skills of a lawyer. He emphasizes that the book is a resource for thinking about substance and applying that substance to a particular skill.
18. If they are not self-evident, see Gerald F. Hess, Principle 3: Good Practice Encourages Active Learning, 49 J. Legal Educ. 401 (1999).
19. Id. at 402.
20. A teacher may purposely design problems that lack all necessary facts, to parallel the experiences of lawyers in practice. One can then devote some class time to the skill of factual investigation, discussing how students could go about finding the missing facts. For an example of how a document-based exercise with missing facts can enhance student learning, see Irvin C. Rutter, Law, Language, and Thinking Like a Lawyer, 61 U. Cin. L. Rev. 1303, 1307-08 (1993).
21. Teachers who have not tried small groups in the classroom may have questions about how they work. In my experience, they work best with about five members. One member of the group, assigned to be the reporter, takes notes on the group's discussions and ultimately reports to the entire class on the group's consensus. I alternate between letting students pick their own groups and assigning students to groups. There are advantages and disadvantages to both selection methods. While students meet in groups, I act as fly on the wall, visiting groups in succession, listening to the students' discussion, and joining in as appropriate. I also respond to invitations from groups who ask me to intervene when the members are unable to reach compromises or when they realize they are confused and need assistance. I find that students who are hesitant to talk in a large class setting are often the leaders of the small-group discussions. For more detailed discussions of small groups in law classes, see, e.g., Roark M. Reed, Group Learning in Law School, 34 J. Legal Educ. 674 (1984); Thomas L. Shaffer, Collaboration in Studying Law, 25 J. Legal Educ. 239 (1973).
22. Rutter, supra note 18, at 1333.
23. Scott J. Burnham, Teacher's Manual: Drafting Contracts, 2d ed., ii (Charlottesville, 1993).
24. See, e.g., Robin A. Boyle & Rita Dunn, Teaching Law Students Through Individual Learning Styles, 62 Alb. L. Rev. 213 (1998).
25. See, e.g., Paula Lustbader, From Dreams to Reality: The Emerging Role of Law School Academic Programs, 31 U.S.F. L. Rev. 839, 850-51 (1997).
26. It is fairly easy for me to do this because my law school has adopted a core set of required materials that includes texts on client interviewing and counseling and negotiations. I would not be comfortable requiring students to buy such additional texts for my Contracts class. If my school did not have those required texts, I would use excerpts from articles or my own narrative discussions of the various skills, but I think that approach would be less desirable.
27. Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965).
28. 68 Cal.2d 222, 65 Cal.Rptr. 545 (1968).
29. For example, if a buyer's lawyer is drafting a form of contract to be used by a sophisticated buyer with an unsophisticated seller, is it appropriate to rely on the code's default warranty provisions and not negotiate warranties?
30. Of the traditional first-year courses, Contracts is most suited for a document-based approach. Some of the topics covered in the basic Property course could also be taught in this fashion, but other topics, such as estates in land, are less appropriate for this approach. Torts, Civil Procedure, and Criminal Law cannot be taught using a transactional document-based approach.
31. If we try to do a meaningful job of giving feedback on written work, the task becomes extremely burdensome when there are more than 20 to 25 students in a class. There are, however, several ways around this problem. Gerald F. Hess discusses how to give useful feedback without necessarily grading each written assignment. For example, he suggests, teachers can provide feedback to the class as a whole by working through average and excellent answers in class. Students can critique one another's writing. Hess, supra note 16, at 22-23. Roy Stuckey also discusses the use of peer evaluations or assessors other than the teacher who is responsible for the class. Stuckey, supra note 7, at 678 n. 107-08.
32. See, e.g., Susan L. Brody et al., Legal Drafting (Boston, 1994); Barbara Child, Drafting Legal Documents: Principles and Practices, 2d ed. (St. Paul, 1992) (containing an extensive bibliography of other drafting books); Reed Dickerson, The Fundamentals of Legal Drafting, 2d ed. (Boston, 1986); Peter Siviglia, Writing Contracts: A Distinct Discipline (Durham, 1996). Some legal research and writing texts have also begun to include a limited amount of material on writing contracts. See, e.g., Calleros, supra note 6, at 479-91.
33. See, e.g., Susan L. Brody et al., Legal Drafting (Boston, 1994); Barbara Child, Drafting Legal Documents: Principles and Practices, 2d ed. (St. Paul, 1992) (containing an extensive bibliography of other drafting books); Reed Dickerson, The Fundamentals of Legal Drafting, 2d ed. (Boston, 1986); Peter Siviglia, Writing Contracts: A Distinct Discipline (Durham, 1996). Some legal research and writing texts have also begun to include a limited amount of material on writing contracts. See, e.g., Calleros, supra note 6, at 479-91.
34. See, e.g., Susan L. Brody et al., Legal Drafting (Boston, 1994); Barbara Child, Drafting Legal Documents: Principles and Practices, 2d ed. (St. Paul, 1992) (containing an extensive bibliography of other drafting books); Reed Dickerson, The Fundamentals of Legal Drafting, 2d ed. (Boston, 1986); Peter Siviglia, Writing Contracts: A Distinct Discipline (Durham, 1996). Some legal research and writing texts have also begun to include a limited amount of material on writing contracts. See, e.g., Calleros, supra note 6, at 479-91.
35. See, e.g., Susan L. Brody et al., Legal Drafting (Boston, 1994); Barbara Child, Drafting Legal Documents: Principles and Practices, 2d ed. (St. Paul, 1992) (containing an extensive bibliography of other drafting books); Reed Dickerson, The Fundamentals of Legal Drafting, 2d ed. (Boston, 1986); Peter Siviglia, Writing Contracts: A Distinct Discipline (Durham, 1996). Some legal research and writing texts have also begun to include a limited amount of material on writing contracts. See, e.g., Calleros, supra note 6, at 479-91.
36. See, e.g., Peter Siviglia, Commercial Agreements: A Lawyer's Guide to Drafting and Negotiating (Rochester, NY, 1993); David C. Burgess et al., California Continuing Education of the Bar, Drafting Business Contracts: Principles, Techniques and Forms (Berkeley, 1994).
37. See, e.g., Peter Siviglia, Commercial Agreements: A Lawyer's Guide to Drafting and Negotiating (Rochester, NY, 1993); David C. Burgess et al., California Continuing Education of the Bar, Drafting Business Contracts: Principles, Techniques and Forms (Berkeley, 1994).
38. And others have, no doubt, taught such courses under different names. See, e.g., Sweet, supra note 13. For a description of the goals of these courses, see Mitchell et al., supra note 4.
39. The books in the Seattle University Skills Development Series are designed to be used either as a supplement to a substantive course or in a stand-alone lab or bridge course. Each book is designed as a case file from which students draw facts. Specific assignments require students to role-play a lawyer solving a problem for a client in the context of a specific doctrinal area. For example, in my Secured Transactions book, students are provided with a lender's lawyer's file and a borrower's lawyer's file, and they must draft and negotiate loan documents, write advisory letters to clients, and structure a workout agreement. As explained in the teacher's manual, the objectives are to guide students in appreciating the strategic use of substantive doctrine, the concrete contexts and manifestations of legal concepts and theory, the pervasiveness of ethical issues, the significance of ethical issues, the significance of the factual information in one's case (including the importance of gathering all pertinent information and the need to identify "pivotal" facts for each side's position), thinking in terms of back-up positions and next steps, and using law to guide and plan (written and oral) presentations. The National Institute for Trial Advocacy has recently introduced a similar series, the Transactional Practice Series, which focuses on transactional lawyering. The creation of these two series of books suggests that there may be a growing audience for these types of materials and this type of approach to law school teaching.
40. See Burnham, supra note 15.
41. Reshaping First-Year Legal Doctrine: The Experience in the Law Schools, 20 Fla. St. U. L. Rev. 599, 621 (1993).
42. Id.
43. See id.
44. See Student Involvement in Improving Law Teaching and Learning, 67 UMKC L. Rev. 343, 343-50 (1998).
45. For example, Coleman and Jarvis assessed their teaching experiment by using student reaction in the form of written evaluations and their own reaction. Coleman & Jarvis, supra note 1, at 734-37. Hegland wrote: "Ultimately I can only intuit, hope for, the educational worth of all of this. But I am sure of the effect on the students. They became, or perhaps simply stayed, so positive." Hegland, supra note 2, at 543.
46. From time to time, I have distributed much more detailed questionnaires about my teaching method than the evaluation forms commonly distributed. When I ask students to comment directly on the use of contracts to teach Contracts, student response is almost unanimously favorable.
47. These are based on the Seven Principles for Good Practice in Undergraduate Education developed in 1987 as part of the national movement to improve higher education. For articles by Gerald Hess and others applying each of the seven principles to legal education, see the September 1999 issue of this journal.
48. Feinman & Feldman, supra note 10.