Contracts Casebook Survey Results
The frightful stress gripping legal education is one reason why all law professors may be interested in the newly-released results of the Washington Law Review survey of law teachers of Contracts conducted in mid-2013.
Available here, the results from 138 respondents consist of numerical summaries of multiple choice questions and synthesis of their written comments that I culled. A sampling from the latter appears below.
The results are of inherent interest to those teaching Contracts and speak to broader questions of legal pedagogy of value to others, including the allocation of time in the first year, the utility of the case method of instruction, and desire for change versus the tug of tradition.
(The survey was done in connection with a symposium inspired by my recent book, Contracts in the Real World, which has also just been published, here, featuring contributions from Aditi Bagchi, Brian Bix, Larry DiMatteo, Erik Gerding, Charles Knapp, Jake Linford, and Jennifer Taub.)
I. Criticisms of Current Casebook
A. By far the most common criticisms of participants’ current casebooks, aggregated across all casebooks, were complaints about (a) excessive length, density or detail (20 such comments) and (b) insufficient number of drafting exercises or problems (18).
B. Besides a few Contracts-specific themes were noteworthy comments that appeared twice: excessive ideology/idiosyncratic theory (2); insufficient cross-reference to other 1L subjects (2); and proofreading or typos (2).
C. Another highlight is one pair of comments that reveals a tension between the viewpoints of those who use books and those who create them. The following comments were offered by the adopter of a particular book and its editor:
Adopter: “Although it is one of the shorter contracts books, and designed to be used in a 4-hour course, I think the book is still too long and has too many cases. I would prefer fewer, but more factually and legally rich cases. I would also prefer more theoretical discussions. Like most contracts casebooks, there is too much on consideration.”
Editor: “The main problem was in condensing all of basic contract law into the confines of a single semester. This meant going light on some important matters, such as consideration and formation, that are declining on significance in modern legal practice, in order to get to important issues associated with form contracts, arbitration, unconscionability, and so on.”
II. Credit Laments
Many made express reference to credit hours.
A. “Contracts should be divided into two semesters with 3 units each.”
B. “I could use more, not less, time to teach the course. I try to incorporate some skills exercises throughout the course and seem to always be rushed at the end. I don’t understand how anyone teaches the course in 4-5 credits.”
C. “I no longer use [skills-based] methods (other than exam-style practice questions) . . . because we switched from a 2-semester course to one semester (first semester).”
D. “The gradual reduction in credits for the first-year course creates additional problems [for teaching interpretation and other contract skills]. But maybe we can afford to let Torts and Property and Civ Pro teach case interpretation, freeing up time in Contracts to cover under-taught material.”
E. “I’ve taught 6 credits, 5 credits, and 4 credits. Needless to say, I can do less with 4 credits than with 6. But the institutional question is what else can be done with those credits. I think our having a Legislation/Regulation course in the first year was worth shortening contracts.”
III. Seeking Change
A. “Cases are not the best ways to teach doctrine. Cases are good for teaching critical reading and providing useful real-world context. We should therefore teach fewer cases and do more with the cases we teach and use other methods for conveying doctrine. We should also integrate more drafting considerations into contracts casebooks.”
B. “[A]ll current Contracts casebooks overuse the case method, which I do not believe to be the most efficient means of teaching first year Contracts. . . .”
C. “[T]he case method has lost its impact with the current generation of students. . . .”
D. “I have noticed, as years have passed, that students have more trouble synthesizing extended textual discussions and seem to desire visual cues more (like text boxes, arrows and highlights, etc.). . . .”
E. “In terms of course materials, what we need is a hybrid — something that blends a graduate level textbook — as you would find in other disciplines — with a casebook. . . .”
IV. Problems and Real World
A. “Law students are very capable of acquiring info about legal rules but they are less adept in using them to solve problems. Casebooks with many problems are my preference. . . .”
B. “It would be nice if case books had a variety of exercise and presentation formats within each book. I like to sometimes have group discussion, sometimes written work, sometimes mock client representations, etc. It is hard work to gin these up out of a standard casebook.”
C. “Some have criticized the first-year Contracts course for emphasizing subjects that are rarely at issue in real-world contracting. . . . We teach students how to interpret cases, but we don’t really teach them how to interpret contracts. If we did, we could test them in final exams by giving them an entire contract and a fact context, and asking them to find and resolve interpretation issues planted in several places inside the contract, which is the heart of what commercial litigators and transactional lawyers do . . .”
V. Regarding Tradition
A. “I suspect that what people find important, and what they teach may correlate to what they learned in their contracts classes when in law school. . . .”
B. “I like to weave legal theory in to the class. I want them to know who Williston, Corbin, Llewellyn were. I want them to know what legal realism, formalism, neo formalism, and critical legal theory are. And to identify the great jurists: Hand, Traynor, Posner, Friendly, to name a few. . . .”
C. “The danger I see with the current trend toward more real world or practical teaching is that students are not taught how to think, but primarily what to do or think instead.”
D. “I use the contracts class to teach a lot more than contract principles.”
A. Most Amusing and Creative: “You inexplicably neglected to ask any questions about which musical materials people use when they teach the first-year course on contracts. In the interests of full disclosure, I admit to using the following: www.tinyurl.com/ContractSongs“
B. Most Disconcerting: “I have recently had occasion to look through almost all of the books you list. If I had to use one I think that I would stop teaching the course.”
C. Most Interesting (and Unlikely to Happen): “I think that all Contracts exams and casebooks should routinely include crossover questions drawn from related fields of law (e.g., torts, criminal law, etc). Indeed, Professors teaching first year courses (and even those teaching 2L & 3L courses) could conceivably cooperate to produce, say, a 6- (or 7-) hour final exam (3Hrs/Lunch/3Hrs) that simulates a day of the bar exam.”
D. Most Illustrative Paired Opposites: Professor A: “Casebooks or other texts are distinguishable not only in their coverage but also their pedagogic approach, such as the relative mix of case method and problem method.” Professor B: Casebooks “are all pretty much alike.” And Professor C: “[T]he books are all pretty much the same – that’s ok, as I think the case method is worthwhile for contracts – but everyone wants to do different things with their cases.”
E. Most Candid: From a professor (one of 10) using his/her own materials (as many as 20 have at some point): “One problem is the same as an advantage: it is so closely tailored to the way I teach that if a student doesn’t get help from my teaching methods she won’t get help from my book, either.”
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Many thanks to all those who responded to the survey; to those who helped call attention to it, including Paul Caron, Miriam Cherry, Ronald Collins, Jeremy Telman; to those who contributed to the symposium; and to the editors of Washington Law Review for coming up with the idea (especially James Wendell) and putting it all together (especially Lauren Watts).