Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students

Thus, the purpose of this piece is to provide an alternative: a transformation of how Contracts is taught in law schools so that we meet a variety of educational objectives. This is less of a prescription than it is a resolution made in the public sphere: a promise to shake things up in my own classroom and thus hopefully do better by students in the long run. It is also the beginning of a search to benchmark against the practices of others, and to seek input from those who have already begun to transform their Contracts teaching materials and methods. This Article is organized into three parts. Part I, entitled “Teaching Contracts: Obstacles and Opportunities,” shares outsider and insider critiques and data about the current Contracts classroom. This sets out anecdotal evidence and also draws upon the 2013 survey of Contracts instructors by the Washington Law Review. This first part also explores Langdell’s innovations as well as how Contracts was addressed in subsequent curricular reform efforts, including the MacCrate Report, the Carnegie Report, and the most recent 2013 American Bar Association (ABA) Report. Part II, entitled, “Lawrence Cunningham’s Contracts in the Real World: Stories of Popular Contracts and Why They Matter,” provides an example of a contemporary innovative approach to teaching Contracts. By presenting as the central subject matter disputes seemingly “ripped from the headlines,” Cunningham’s book is engaging and current. In the foreground of each chapter, he presents disputes that a student might encounter on a blue book exam, or in practice after graduation. After sketching the modern dispute, he dips into older, often classic cases at the intersection of various doctrines to illustrate the modern relevance of the common law. Instead of beginning with a “hairy hand,” Cunningham’s book begins with a more current and familiar dispute over a wedding party interrupted due to a major storm.16 If this book were used as a supplement or main text in the classroom, students might better appreciate the role of courts in interpreting, enforcing, or refusing to enforce private arrangements, as well as the likely remedies. Part III, entitled, “Modernizing the Contracts Classroom,” sets out recommendations for modernizing the teaching of contract law, theory, and transactional skills. These recommendations include (1) flipping the case method by properly placing contemporary disputes at the center of the class, not the margins, and thereby inviting students to struggle with “unpopular” contracts––not simply the ones that reinforce the doctrine––including contract disputes that never land in court; (2) accurately treating common law as only one source of law, alongside federal and state statutes and regulations, to reference when creating agreements, struggling to interpret their provisions, or questioning their enforceability; and (3) devoting at least one-third of the semester to negotiating and drafting skills and also offering at least one upper-level transactions course or upper-level negotiations course to hone those same skills