Jennifer Taub, ‘Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students’

Consider this. Over three years of study, most law students take a single course on the subject of contracts in which they rarely (if ever) negotiate, draft, or even review a written agreement. Truly. Actual contracts are quite unpopular. To illustrate what is wrong with this, it may be helpful to imagine a realm where film school students earn a graduate degree without watching a movie, writing a script, or even picking up a camera. They attend classes for which they study an assigned selection of movie reviews penned by an assortment of film critics. From the readings students are meant to discern the elements of quality filmmaking: what makes a good movie and what makes a flop. Limited context or theory is provided. So, this method suffers not just from lack of practical application, but also the absence of frameworks for critiquing the selection of reviews, the critics themselves, or their methods and processes of judgment. In class, the professor fires questions at students asking them to explain each critic’s reasoning. Then, students are asked to hypothesize that particular elements of the described movie have changed. They are expected to predict, given these alterations, whether the esteemed (or hack) critic who panned the film might then praise it, or vice versa, and why. Upon graduation, those who land jobs as directors (or who strike out on their own) are handed an expensive camera, a sizeable budget, and expected to start filming.

This seems implausible. Yet, this analogy reflects the current reality in many law schools with respect to a required course called Contracts. The casebooks students read mainly include judicial decisions selected and organized around legal issues that concerned contracts scholars more than a century ago. Students infrequently grapple with the murkier contract law challenges of our day. In addition, though some schools do offer upper level courses in negotiations or drafting, these are rarely required.Thus, future lawyers can graduate from most law schools without taking such courses. Yet, as practicing lawyers, drafting, reviewing, and negotiating are skills they will need to hone whether they assist with business transactions, represent consumers in disputes, help negotiate settlement agreements, or craft legislation, as a few examples.

To be clear, I am criticizing my own methods, and do recognize that there are exceptions to this general summation of the status quo. However, this still appears to be the norm because we have not let go of the innovations made in the late nineteenth century by Harvard Law School Dean and Professor Christopher Columbus Langdell (1826-1906). The case method, as described herein, his contribution to pedagogy in 1870, remains the dominant mode of teaching students about contracts. As a result, Contracts is a course in how a particular set of contract disputes (“busted deals”) are adjudicated; it is not a course in contracts.

Taub, Jennifer, Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students (December 23, 2013). Washington Law Review, Vol. 88, No. 4, 2013.

First posted 2013-12-26 08:58:02

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