The Challenges of Teaching Contracts: Materials and Tricks

More KCON presentation summaries from this morning, this time from a panel on Contracts teaching. Once again, apologies in advance for any inaccuracy in the notetaking.

 
Sean Scott (Loyola Los Angeles): “The Parol Evidence Rule–Video Presentation and Simulated Interviewing.” The Parol Evidence Rule is one of those subjects where, even in a generally Socratically-taught class, an innovative approach can be especially beneficial in getting the material across to the students. Professor Scott showed a video showing a flipped-classroom approach to teaching the PER, first describing the rule and then applying the rule to a filled-out form contract. The videos are assigned for viewing before class.  The pre-class videos get the students into depth of the issue much more quickly, raising issues of the extent to which the parties’ agreement is integrated.  A second technique in the same PER unit involves bringing in an actor for a client interview where the topic turns to the initial discussions between the parties. The interview exercise drives home the application of the rule in a problematic area. Video units are subject to repeated viewing and students can listen to the material without being focused on notetaking. Video units provide variety in teaching methods. Interviewing-and-interactive learning (applying the rule) is better for long-term learning an retention.

David Epstein (Richmond): “Teaching Conditions.” Conditions is one of the most difficult concepts for law students to grasp, and that seems to be true with students across the country. We won’t get to answers here, but we can at least zero in on the difficulties. How can we address this area?  Some possibilities are the Contract Drafting/Tina Stark approach, which involves looking at contract documents. We may want to walk students through easily comprehended transactions–a home purchase contract and an insurance contract. Do cases really help here? If so, how much and what do they illustrate? Strict compliance? That courts disfavor conditions? That law abhors a forfeiture? Is it worth spending lots of classtime here to get across all of these concepts by a case? Problems may be much more effective. Students need to see the connection among these doctrines and rules. Where do conditions fit in relative to material breach? Where do conditions fit in connection with the excuse doctrines of impossibility and impracticability? These are related concepts where the parties do and don’t consider the circumstance. Students do not seem to benefit from extended class time spent on the question of constructive conditions.

Bob Brain (Loyola Los Angeles): “Policy, Structure, and Exercises Teaching the Parol Evidence Rule.” Cases are problematic for teaching the PER because the students already know who “won” and then give up on understanding why. Another difficulty is that students have a moral rooting interest against the “liar” in a PER problem and decide that a liar-loses case is the right result for all cases. Professor Brain does not start with a case, but instead tries to explore the issue through problems that enable students to perceive the underlying tension in the PER and its exceptions.  The problems bring the students around to the legal question better than starting with a case.  Thinking transactionally, students come to realize that there are risks that arise from both allowing and not allowing parol evidence into the dispute.  Students need to realize that no matter what the rule is, sometimes the “bad guy” in the deal will win. Students have an easier time starting out with UCC 2-203 as the rule rather than the Restatement version, which is spread out over many sections.  Built the concepts on a chart, beginning with the level of integration and then evaluate the treatment of different types of terms. In sum, the approach is to illustrate policy, built the structure, and then drive home the meaning through exercises.

Carol Chomsky (Minnesota): “Rule Assembly for Misrepresentation” and “What I’ve Learned About Learning.” (1) Misrepresentation is a difficult area to teach because the exceptions and categories are so diverse. The R2K sections better lend themselves to being taught broken out line by line–cutting the provisions apart. She gives the students only the global misrepresentation rule at first, and then students must assemble the special-case rules, even including the “and” and the “or” terms.  Students grasp what the logic is behind the Restatement rules because they assemble the rules themselves.  (2) Active learning is important–students need to interact and even move around the room. To stay engaged. Example–stand on a continuum of how much uncertainty the law should allow in enforceable contracts, and then quiz each other on why the students stand where they are standing. Spaced learning is important–revisit topics. Students actually grapple with a problem best before they know the answer. Even when students get the problems wrong, they learn better for having gone through the effort. Students need a structure–a framework in which to put the information that they learn. We should not give the students everything, but we do need to give the students something in which to assemble the material they learn. Students also need multiple opportunities to do what we test them on. Tell students why you are doing certain activities in the classroom–the “doing” exercises have a learning purpose, and students need to know. Professor Chomsky especially recommended the books Make It Stick, and Small Teaching for further reading.

Ben Templin (Thomas Jefferson): “Modern Case Method.” Collectively, we’ve identified the problems of (1) time constraints, (2) building competency, (3) student engagement, (4) experiential learning and outcome assessment. Modern case method accounts for Bloom’s taxonomy and other understanding about learning (e.g., cognitive load theory) in use of cases in legal education.  Beyond Bloom’s, a focus on skills of meta-cognition skills has emerged–self evaluation and improvement.  The main benefit of Langdell’s traditional case method is its ability to build inductive reasoning. Cognitive load theory is concerned with how one acquires long-term memory. Information learned must work through sensory memory, into working memory, and finally into long-term memory by a schema–structures that enable the reduction of cognitive load in taking in information. Millennial learning experience is particularly ill-suited to the traditional case method.  The modern case method intends to reduce cognitive load by establishing prior knowledge and schema. Use of pre-testing and other assessment to improve accountability.