The Oregon method: An alternative model for teaching transactional law

Journal of Legal Education

Volumn 59, Issue 2, 2009, Pages 221-239

  Illig, Robert C ^a  

^a UNIVERSITY OF OREGON   (United States)

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EID: 80052370311     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (42)

1. See generally Roberta Romano, After the Revolution in Corporate Law, 55 J. Legal Educ. 342 (2005) (discussing the importance of integrating finance into the traditional business law curriculum).
2. See Edward Rubin, What's Wrong with Langdell's Method, and What to Do About It, 60 Vand. L. Rev. 609, 641 (2007) ("Non-lawyers tend to be astonished to learn that in the well-known first-year course on contracts..., [t]he students never read, draft or negotiate a single contract.");
3. Victor Fleischer, Deals: Bringing Corporate Transactions into the Law School Classroom, Colum. Bus. L. Rev. 475, 478 (2002) ("Indeed, a majority of law students graduate without having once analyzed a prospectus, negotiated a term sheet, drafted a complex agreement, or, for that matter, even once having read a commercial contract from beginning to end.").
4. See Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 Yale L.J. 239, 253-56 (1984) (describing business lawyers as "transaction cost engineers").
5. James C. Freund, Anatomy of a Merger: Strategies and Techniques for Negotiating Corporate Acquisitions 2 (Law Journals Seminar Press 1975).
6. See Karl S. Okamoto, Teaching Transactional Lawyering, 1 Drexel L. Rev. 69, 122 (2009) ("It is easier to teach ex post legal analysis than to teach ex ante legal planning.... We as law professors are well-versed in the methods of legal analysis and argumentation [,however, we] are not as good at providing tools for dealing with uncertainty about the future. And yet that is exactly what transactional lawyers do for a living.").
7. Though unbeknownst to us at the time, the University of Seattle pioneered a similar program of one-credit add-on courses that they also refer to as "labs." See Margaret Martin Barry, Jon C. Dubin & Peter A. Joy, Clinical Education for this Millennium: The Third Wave, 7 Clinical L. Rev. 1, 45-46 (2001). Though similar in overall format, the Seattle labs are taught by clinical faculty and appear to have been adopted as "a measured step in the direction of integrating clinical methods throughout the curriculum." Id. at 46. By all accounts, the program has been highly successful.
8. See Rachel Arnow-Richman, Lisa Bliss, Sylvia B. Caley & Michael A. Woronoff, Teaching Transactional Skills in Upper-Level Doctrinal Courses-Three Exemplars, Transactions 365, 379 (Special Report 2009) (summarizing the proceedings of a May 2008 conference on "Teaching Drafting and Transactional Skills," sponsored by The Center for Transactional Law and Practice at Emory University School of Law).
9. Tina L. Stark, Thinking Like a Deal Lawyer, 54 J. Legal Educ. 223, 223 (2004) ("To teach our students to be deal lawyers, we must teach them to think like deal lawyers.").
10. See Todd D. Rakoff & Martha Minow, A Case for Another Case Method, 60 Vand. L. Rev. 597, 602 (2007) ("What [law students] most crucially lack...is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills.").
11. See generally Nancy S. Marder, Why 12 Angry Men? (1957): The Transformative Power of Jury Deliberations, in Rennard Strickland, Teree E. Foster &
12. Taunya Lovell Banks, eds., Screening Justice-The Cinema of Law: Significant Films of Law, Order and Social Justice 157 (William S. Hein & Company 2006) (hereinafter, "Screening Justice");
13. Taunya Lovell Banks, To Kill a Mockingbird (1962): Lawyering in an Unjust Society, in Screening Justice, supra, at 239.
14. See, e.g., Erin Brockovich (Universal Pictures 2000) (following a high-intensity legal assistant as she tracks down the evidence needed to prosecute a toxic tort case); A Few Good Men (Columbia Pictures 1992) (depicting a lawyer in a military trial who bets his career on the cross-examination of a hostile witness).
15. See generally Robert Eli Rosen, A Few Good (and Angry) Men (and Woman) (1992), in Screening Justice, supra note 10, at 607.
16. See generally Stacy Caplow, Reversal of Fortune (1990), Affirmation of Ambiguity, in Screening Justice, supra note 10, at 549
17. See generally Richard D. Parker, The Good Lawyer: The Verdict (1982), in Screening Justice, supra note 10, at 455.
18. See Philip Frost, Kenneth Chestek, Lyn Goering, Karen Koch, Karin Milka, John Mollenkamp, Judy Rosenbaum & Jean Rosenbluth, Association of Legal Writing Directors/Legal Writing Institute, 2008 Survey Results, at 12 (2008), available online at http://alwd.org/surveys/survey-results/2008-Survey-Results. pdf (Question 20).
19. See William Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond & Lee S. Shulman, Educating Lawyers: Preparation for the Profession of Law (Jossey-Bass 2007) ("The legal-case method, in all its variations, has dominated the first year of most legal education through much of the past century. Its purpose was described to us in straightforward terms: the case-dialogue method, pioneered by Langdell and his Harvard Law School colleagues from the 1870s, is designed to prepare students to 'think like a lawyer.'"); Okamoto, supra note 5, at 122 ("While overstating the case to some degree, it is meaningful to say that those involved in law as litigators or judges are standing in an ex post position. They are seeking to reach a determination of a legally-determined outcome based on a state of facts that has not yet occurred.").
20. See Barbara J. Busharis & Suzanne E. Rowe, The Gordian Knot: Uniting Skills and Substance in Employment Discrimination and Federal Taxation Courses, 33 J. Marshall L. Rev. 303, 304 (2000) (arguing that the academy's current approach to legal education "creates a false dichotomy between 'skills' and 'substance'").
21. Rubin, supra note 2, at 610. But see Tina L. Stark, My Fantasy Curriculum & Other Almost Random Points, Transactions 3, 4 (Special Report 2009) (arguing that the entire law school curriculum should be reformed to incorporate dealmaking logic and skills into a wide variety of doctrinal courses).
22. For commentary on the importance of teaching professionalism in law school, see generally American Bar Association, Report of the Professionalism Committee: Teaching and Learning Professionalism (A.B.A 1996).
23. American Bar Association, Section of Legal Education and Admission to the Bar, 2008-2009 Standards for Approval of Law Schools § 305(c) (2009), available online at http://www.abanet.org/legaled/standards/ 20082009StandardsWebContent/Chapter%203.pdf ("Each student's academic achievement [in studies or activities away from or outside the law school] shall be evaluated by...a member of the full-time or part-time faculty.").
24. For a discussion of the issues involved in videoconference-based distance education, see generally Catherine Arcabascio, The Use of Video-Conferencing Technology in Legal Education: A Practical Guide, 6 Va. J.L. & Tech. 5 (2001);
25. Stephen M. Johnson, Legal Education in the Digital Age, 2000 Wis. L. Rev. 85 (2000);
26. Helen Leskovac, Distance Learning in Legal Education: Implications of Frame Relay Videoconferencing, 8 Alb. L.J. Sci. & Tech. 305 (1998).
27. The text is James M. Schell, Private Equity Funds: Business Structure and Operations (Law Journal Seminars Press 2009).
28. Robert C. Illig, Therese H. Maynard, Cherie O. Taylor & Irene Kosturakis, Teaching Transactional Skills Through Simulations in Upper-Level Courses-Three Exemplars, Transactions 15, 23 (Special Report 2009);
29. Therese H. Maynard, Business Planning: Financing the Start-Up and Venture Capital Financing (Aspen forthcoming in 2009).
30. See http://www.law.missouri.edu/academics/curriculum.html#5095.
31. John Sonsteng, with June Cicero, Resa Gilats, Roger Haydock & John McLachlan, Learning by Doing: Preparing Law Students for the Practice of Law, 21 Wm. Mitchell L. Rev. 111, 116-17 (1995).
32. See also Christine A. Corcos, Melvyn R. Durchslag, Andrew P. Morriss & Wendy E. Wagner, Teaching a Megacourse: Adventures in Environmental Policy, Team Teaching, and Group Grading, 47 J. Legal Educ. 224, 225-26 (1997) (discussing a two-semester environmental law course structured around two simulation exercises).
33. For a discussion of another skills-based legal education program that successfully collaborates with a business school, see generally Jill I. Gross & Ronald W. Filante, Developing a Law/Business Collaboration Through Pace's Securities Arbitration Clinic, 11 Fordham J. Corp. & Fin. L. 57 (2005).
34. See Suzanne Valdez Carey, An Essay on the Evolution of Clinical Legal Education and Its Impact on Student Trial Practice, 51 U. Kan. L. Rev. 509, 528 (2003).
35. This challenge can be partially addressed by courses like Mergers & Acquisitions, which are designed around a practice area rather than a doctrinal or theoretical construct. Such courses typically introduce students to a wide range of legal issues, thus at least partially filling in the gaps in some students' education. However, in doing so, they must sacrifice depth for breadth and many students are left with only a superficial understanding of the applicable law. This trade-off can be seen by reviewing the table of contents of a typical casebook. See, e.g., Dale A. Osterle, The Law of Mergers and Acquisitions xi-xxiv (West, 3d ed. 2006).
36. See, e.g., Dina Schlossberg, An Examination of Transactional Law Clinics and Interdisciplinary Education, 11 Wash. U.J.L. & Pol'y 195, 227-28 (2003).
37. See John Godfrey Saxe, The Poems of John Godfrey Saxe 77-78 (James R. Osgood and Co. 1873). Saxe's poem is based on a famous parable that appears to have originated in China during the Han dynasty.
38. See, e.g., Emory University School of Law, Teaching Drafting and Transactional Skills (May 30-31, 2008);
39. University of Washington School of Law, Legal Education at the Crossroads (Sept. 5-7, 2008);
40. American Association of Law Schools, Mid-Year Conference on Transactional Law (June 10-12, 2009).
41. See 18 NALP Bulletin 8 (July 2005). After remaining fairly
42. Roy Stuckey and Others, Best Practices for Legal Education 109 (Clinical Legal Educ. Ass'n 2007).