Teaching Assistants: Scott Burnham’s Q & A: Contracts, 4th Edition

Students often ask me for extra practice problems, and I struggle to advise them. I have written on this topic before here and here, but it is a topic worth revisiting at the beginning of each new school year. I have since made a habit of reviewing books in this space occasionally, and some publishers now send me review copies. My general sense is that everything that is sent me to review is very good.

Sometimes I would not recommend a study aid because there is too much distance between my approach to doctrine and the approach adopted in the study aid. These differences arise in the context of the surprising differences of opinion among contracts profs on rather basic matters. Given fifty-plus jurisdictions and Cardozo’s insight that the half-truths of one generation get mistaken for the whole truth of the next in common-law adjudication, such lack of unanimity, while irksome, shouldn’t be surprising. So, for example, some of my colleagues speak of breach of contract in the context of promissory estoppel, but I don’t. The contracts professoriate varies widely on how (and why) it classifies excuses and affirmative defenses, nor is there uniformity on where the statute of frauds fits in. In teaching this material, one has to choose how to present things, and it is not helpful for the purposes of first-year teaching if students are reading supplements that have made different choices.

It was something of a relief when I waded into Scott Burnham’s introduction to the new edition of his Q&A book. Professor Burnham advises students pretty much exactly as I would advise them. In fact, I wish I could make bullet points of his advice and tape them to my exam proctor’s forehead or perhaps have the proctor post them on a whiteboard. The key points are as follows:

• Treat a multiple choice question the same as you do an essay question and use the IRAC method to arrive at the correct answer;
• Don’t lose track of the call of the question;
• Once you have identified the proper rule, look at the quirky facts to see if an exception is implicated;
• Make sure you know whether the common law or the UCC governs; and
• Be wary of absolutes.

The new edition has some useful features. It takes into account the 2022 amendments to the UCC, and it includes questions modeled on the NextGen Bar Exam. It is among the first study aids to include these elements, and I think they will make this new edition especially valuable to students who are starting law school in the Fall of 2025. 

As to the questions and answer themselves, I only had time to dip in a bit, but I expect that I will be returning to this book for ideas for practice questions throughout the semester. The questions vary in difficulty. The answer to some of them should be obvious to most serious students. Some of Professor Burnham’s questions are challenging in the best possible way. The answer to the questions is not immediately obvious, but after I considered for a while, one option seemed clearly best. When I checked the model answers, they accorded with my choices for the very reasons I would have given. The correct answers are presented as “the best answer,” and that is wholly appropriate, because some of the other options may not be incorrect, but they are also not the best answer because they are incomplete or overbroad..

The book is well organized for the first-year student. The introduction that covers a lot of different topics, and students may have to return to it at the end of the course. But they can proceed through most of the topics as they are covered, beginning with the scope of Article 2, and proceeding through chapters on formation through the course of a transaction, culminating in remedies and third parties. At the end there is a 46-question practice final exam, in which students will have to exercise their issue-spotting muscles, as they questions can be on any topic. 

Professor Burnham appropriately allocates nearly twice as much space to answers and explanations as he does to the questions themselves. The explanations provide a solid review of doctrinal material, and so the book can serve both as a means of practicing and a means of solidifying the students’ grasp of the material. This is a book that I can recommend to my students without reservation and into which I expect to dip repeatedly.