First Year Contracts
I strongly believe that our efforts to bring problem-solving and team-based approaches into legal education should start in first year. I teach a first year Contracts course that still covers all the key doctrines but simultaneously gets students developing their skills in legal argument, analysis, judgment, and team work right out of the gates. This approach also significantly improves their understanding and retention of the legal rules and cases that have made up first year Contracts for decades
This innovation takes the basic first year Contracts class and reorients it to focus on teaching students how to “do” contracts in a team-based case-based setting. I have taught the course five times with the current structure and have been using team-based problem-solving in first year Contracts since 1991. The course was originally motivated by the observation that there is a major disconnect between what students are asked to do on the final exam in most Contracts courses and what they spend the semester doing: exams ask them to analyze client’s problems and give advice; traditional courses ask them to extract rules from appellate cases, consider how rules would treat hypothetical facts and make arguments about which rules better meet the policy and juridical goals of doctrine. This course departs from the conventional curriculum by emphasizing the deployment of legal rules to develop strategic advice for a client and focuses in particular on the development of judgment and an appreciation for the way perspective and argument changes the perception and deployment of facts. Students work in groups throughout the semester on identifying, organizing, analyzing and presenting the issues raised by a client’s problem and evaluating alternative strategies. This course maps all three of the Carnegie apprenticeships. Students learn substantive contract law, but they do so in the context of deploying the rules to solve a client’s problem and in the context of interacting with other students in a self-consciously professional role. Students are graded in part on the basis of demonstrating professional attitudes such as assuming responsibility for team process and outcomes and managing work.
The course tracks the conventional set of contract doctrines ordinarily taught in a semester-long Contracts course but reduces the number of cases read relative to the traditional syllabus in order to keep the workload reasonable. In this way the course shifts the emphasis from accumulating a large number of legal rules to learning how to effectively apply a smaller number of core contract rules and principles. The course also deemphasizes theoretical perspectives on what constitutes an optimal legal rule in favor of focusing on the development of facility with legal argument and analysis; this reflects the pedagogical judgment that theoretical perspectives are lost on students until they know how legal analysis and argument actually works. The reduction in case coverage makes room for 4 written assignments which are integrated into the syllabus as teaching vehicles and which the students complete in groups of 4.
Each assignment presents students with a 2-3 page fact scenario comparable to the problem that they will be given on the final exam. In each assignment, groups are required to outline issues and sub-issues and then choose one issue or sub-issue that they judge to be important to the advice they have to give the client. Students then analyze this issue in depth (in 1000 words or less), reaching a judgment about the strength of the client’s position on the issue. (The outlining and analysis steps are broken out in the first two assignments, which uses the same fact scenario.)
A key goal of the course is to develop situated understanding of legal doctrines and in particular to focus on the development of fact-rich arguments and (on-point) counterarguments. Ambiguity and alternative interpretations of facts—and the exercise of judgment about the plausibility and strategic value of alternative interpretations—are emphasized. Other goals include the ability to see how legal issues interrelate, how their structure informs the assessment of the likelihood of success on alternative strategies for the client, and the development of judgment in identifying the most important issues on which to focus.
I have been working on developing students’ appreciation and skill in the deployment of facts in constructing arguments and counterarguments since 1991 and on refining techniques for team work and the articulation of issues since 1996; I first deployed the final exam structure from which the rest of the course has been essentially reverse-engineered in 1996. In this final exam structure, students are asked to “spot” and outline all issues and to select one issue judged to be important for in-depth analysis. Students are graded on the accuracy, coverage, coherence and logic of the outline, their judgment in choosing an “important” issue, and their in-depth analysis of a single issue. (By restricting the in-depth analysis to a single issue, students have sufficient time to develop careful fact-rich arguments and counterarguments and use cases and statutory provisions carefully.) Implementing this exam format revealed that even advanced and highly successful law students had little understanding of how issues relate and no framework for deciding which issues are important and which are peripheral; conventional exam design encourages students to grab ‘check marks’ for issues by mentioning them somewhere in the course of paragraph after paragraph of rapidly-churned out prose. In conventional exams students also tend to engage in superficial factual analysis heavily based on assertions (“Our client will argue this was a reasonable interpretation. The other side will argue it is unreasonable.”)
I have learned in upper year courses that students really do not grasp that it will be their job to provide detailed, persuasive and fact-intensive arguments for why these legal conclusions (“reasonable”) should be reached; or how susceptible those conclusions are to alternative characterizations of facts. The evolution of the course has tightened the focus over time on developing the capacities that these early exam changes revealed were lacking. Through group-based practice, reading the work of other students, full class discussion of the approach taken by individual groups and detailed written feedback from the professor, students become adept at understanding what counts as a “legal” “issue” (distinguishing legal from factual issues or analytical questions that arise; recognizing that a required element or factor in a legal rule gives rise to an issue only if it is plausibly subject to argument), that a counterargument must respond directly to the claims raised in an argument, how facts can be deployed to achieve different “pictures” of the case, how the logical structure of legal rules unfolds and how the strength of a legal position depends on this logical structural as well as the possibilities for fact-based arguments. Students also come to understand that the job of the lawyer involves repeated exercises of judgment about where to focus attention and choices among alternative strategies, and that judgment depends on an understanding of client goals. (There is no value in pursuing analysis of a misrepresentation claim, for example, if the client is only interested in enforcement and not avoidance of the contract.)
A further development in course design has focused on refining techniques to manage group work with a large number of students, manage student expectations and anxiety, and develop a grading system that balances group and individual incentives in a population of students who are highly grade conscious. These developments have allowed me to expand the use of team-based problems from an add-on to the conventional course in the early years to the present course structure which is organized around the team problems and ties them directly to the final exam. Students thus have a keen sense throughout the course that the team-based work is focused 100% on preparing them to do what they will be asked to do on the final exam. Indeed, the last of the 4 assignments is always the final exam from the previous year.
The assignments in this course are formative as opposed to evaluative: they provide students with the type of problem on which they will be ultimately evaluated on the exam, give students multiple types of feedback on their work on the problem, and give students repeated opportunities to practice the same set of skills. The series of assignments is also cumulative: in each one, the students have a larger body of contract doctrine on which to draw and they are able to see how their ability to analyze a problem has developed from the beginning of the course. (I give them the first fact scenario the first day of the course and we brainstorm about the problem before they have the structure of rules to apply; this helps them also remain connected to the idea that the goal is the familiar one of helping someone out with a problem and not the arcane one of demonstrating erudition in the application of mysterious rules.)
All written work in the course is posted online and as preparation for in-class discussions, students are required to review the work posted by all others in the class. My written comments on individual assignments are also posted online and available for all to review to learn from. (Grades on assignments are distributed to groups privately; I endeavor to be as balanced and supportive as I can be in providing feedback I know will be public but not at the expense of being clear about what the errors or problems are.) When returning the annotated copies of group assignments, I also provide a ‘general feedback’ memo which identifies specific group assignments that provide examples of particularly successful work on specific attributes that may have presented difficulty to others. (For example, students generally are mystified for quite some time about what counts as a “counterargument”; I point them to memos that demonstrate a close understanding of how to join an issue in responding to specific arguments.)
In-class discussion of memos after they have been posted also serves to help students develop their sense of judgment: they see and hear others’ exercise of judgment. I will often, for example, start off by collecting on the board the issues that groups judged to be important and ask each group’s spokesperson how strong they thought the client’s position was on the issue they chose. This emphasizes the framing of judgment: this is not an abstract exercise or an opportunity to guess what the professor wants to hear or to show off the ability to spot neat issues. Nor is it an exercise in cheerleading and tossing things into a kitchen sink. Groups that are outliers in their judgments and choices can see this and we can explore the arguments collectively; this emphasizes that ultimately legal judgment is the acquisition of a sense of how a group of legally-trained people will see an argument once the case for it has been made. This disconnects the acquisition of judgment from the acquisition of the ability to read the professor’s mind. Students thus receive feedback on their developing competence at legal analysis from multiple sources: members of their group as they develop their joint product; their own reading of other groups’ work product; in-class discussions centered on their solutions and those of others; my written feedback specifically on their work and the work of others; general feedback I provide in a memo that covers common problems and issues; and any in-office feedback on their work (usually done with groups) that they seek out.
After each assignment is discussed in class, students also complete a brief self and group assessment form which asks them to reflect on what they found difficult or not about the assignment and how they felt they did (now based on having read and heard from other groups). They are also asked to evaluate briefly the professionalism of their own performance and that of other members of their group—these comments inform but do not feed directly into my end-of-year assignment of “professionalism points” to individual students. This gives students a chance to think about what it means to be a professional—something that is particularly tested by how they respond to managing group interactions in order to produce a result for a client. Students frequently comment on what they are learning about how they manage interactions: discovering that they cannot remain quiet if they see the group being led in the wrong direction by a strong personality, for example, or how they need to make sure they don’t ride roughshod over quieter members of the group who (they discover) sometimes have key contributions they need to produce a good product.
Group grading balances the individual and group incentives. Each of the four members of a group is required to take the position of “point person” for one assignment; the point person is responsible for the final product and receives a score on the assignment out of 15 (I tell students ahead of time that I grade all assignments throughout the semester on a curve in which half of the memos receive 11 or 12 and half receive 13 or 14, with the rare 10 for inadequate work and 15 for the truly excellent—I only give one or two “10s” or “15s” in a semester.) The other members of the group receive a pro-rate score out of 5. Thus as the end of the semester each student has 15 points based on the assignment for which he or she was the point person and 15 points based on his or her contributions to the other 3 assignments. I assign 10 “professionalism” points at the end of the semester based on what I learn about students and their contributions to groups and in-class discussions. (I have learned that assigning these points during the semester and revealing them to students is demoralizing for groups, so they do not learn these points until the semester is over and then only in the context of the final grade.)
The final exam is worth 60 points for a total of 100. I tell students that I retain flexibility to adjust the relative weight in favor of the final exam if the final is better than in-class work (this happens with a small number of students.) A mandatory grading curve and anonymous final exams limits my ability to do this relative to what I think would be ideal, but there are only a handful of cases in which when I discover the final grade I feel that there has been some distortion in grading introduced by the curve. (USC has a very strict first-year curve.)
The evidence of student learning in this course comes from performance on the final exam, as compared to performance on the initial assignments. From this comparison it is easy to see that the great majority of students, by the end of the course, understand what counts as a “legal” issue (“was the Dec 8 letter received?” is not a legal issue—as many think it is when we start; “whether the offer suggested that a mailed response would be acceptable” is); are able to organize issues into sub-issues; organize their thinking around client’s goals (on a recent final exam, over 50% began their answer with a quick sketch of an answer to the question “what are the client’s goals”); exercise good (level-appropriate) judgment about what issues it will be important to resolve to generate advice for a client (over 80% choose an issue on the final that receives full marks for “judgment”; in early assignments, most students struggle with this); and can develop fact-based arguments; and usually remember to explore on-point counterarguments.
I have been teaching Contracts for 20 years and I feel confident that students master legal rules and doctrines better in this course than in the conventional course. The reduced coverage does not trouble me, although I have learned that if you eliminate anything that students independently have decided “must” be in a first year course, then they become worried: one year I dropped the ‘mailbox rule’ because it is a bit arcane but every commercial outline they looked at suggested this was essential, so I put it back in. It is important to emphasize that contract law, being state-by-state and heavily overlaid with statutory provisions in different substantive areas, is something that needs to be researched in particular jurisdictions in practice; so the goal is not to identify all the possible approaches to “mistake” for example but to introduce central doctrines and an overview of issues.
This course is reasonably stable at this point as a first-semester course and I do not plan significant revisions in format or approach. I will be developing modifications this year as I will be teaching it at Harvard as a second-semester first-year course. This will require a faster pace to avoid belaboring skills students have already acquired from first year, and some new diagnostics to determine how much students in fact did learn in first semester courses, as well as in the new Harvard IL intensive Problem-Solving Workshop (which I taught in its inaugural year—2010). I will also look to integrate more theory and policy into the course as a second-semester course to meet student expectations and to take advantage of what I hope and expect will be a higher level of competence at the start. I anticipate integrating, for example, some economic theory of contracting into the development of legal arguments. I expect to maintain the client focus of the course and do not anticipate shifting the course to focus on judicial perspectives on “what is the better rule”, other than through the anticipation of judicial responses in crafting legal arguments. I expect to emphasize development of an understanding that “efficiency” is a criterion of legal analysis in practice, for example, only if the relevant legal doctrine accommodates arguments based on policy.