It all started with the committee assignment from hell. When my dean asked me co-chair the Strategic Planning Committee a few years ago, neither of us could know that it would transform my own teaching and scholarship, nor how.
For at least a decade I intended to add drafting exercises into my Commercial Law and Contracts courses, but getting my book Love’s Promises out the door and other teaching and administrative obligations kept it on the back burner. It took the relentless talk about curricular and other reforms in those weekly Strategic Planning meetings to overpower my worries about the steep learning curve and crowding-out of other scholarly and teaching projects.
I little guessed that it was not a zero sum game. Instead, learning to teach students how to create the documents that memorialize a commercial transaction changed my scholarship and other teaching in profound and positive ways.
At the same time that I came to see the de-lamination of my notes as an ethical imperative, the ABA and the California Bar were cooking up new course requirements. Accredited schools must offer 6 credits of transition-to-practice coursework and admission to the California Bar requires 15 credits that include topics like negotiation and drafting of contracts and other legal instruments.
Professors across the curriculum are busy figuring out how to meet these requirements, each of us working within our fields of expertise and from our own backgrounds in practice. I’ve teaching been Contracts and Commercial Law (mostly Secured Transactions) for two decades, and before that I was in the Credit Recovery department of a big firm. Sitting on the Appointments Committee over the years, I’ve noticed that most of us tenured and tenure-track come from litigation backgrounds, and for all but the junior faculty that was a while ago. The question is how we who have not practiced in decades can help our students enter that arena.
One option is to give up before we start. I spent much of my first decade teaching a lot like my professors taught me in the 1980s, and as their professors taught them in the 1950s and ‘60s, and so forth, all the way back to Langdell. Top-tier law schools with big endowments may be able to hire a staff of legal drafting instructors on contracts, a parallel to the non-tenure-track faculty who teach students to write memos during their first year. But the 2008 financial crisis and declining enrollments put this option out of reach for most of us.
Another option is for us middle aged dogs to learn a few new drafting tricks. I did, and am here to say that learning to teach contract drafting required me to adopt new ways of thinking that those insights have only enriched both my doctrinal teaching and my scholarship.
But a paradox stands in the way for many so-called podium teachers. Some think that learning to teach drafting and its increased grading is too hard. Others, in contrast, see it as too easy, mere ministerial scrivener’s work that is unworthy of a true scholar’s attention. In my experience both of these views are mistaken. As Kwame Anthony Appiah put it in the NY Times magazine Education issue, universities can, should, and do focus on both utility and utopia. Our students take on monumental debt both to earn a living and to practice a profession that protects sacred values like justice.
How Drafting Lessons Helped my Scholarship
Figuring out how to teach drafting helped me think more precisely about writing for particular readers by shaping a voice, format and substance. That new focus helped me to write a trade book that aims to get a distilled version of the law review articles I’ve written about family agreements out to non-lawyers who could benefit from knowing a few things about assisted reproduction, adoption, cohabitation and marriage agreements. (A 3-minute video demonstrates that voice and format.)
These changes happened incrementally. First I taught a three-credit drafting seminar with Olivia Farrar of Howard University Law School, who also teaches a drafting boot camp here at the University of Maryland. We created a hypo that required students to negotiate and complete the documentation for forming an LLC that purchased a medivac helicopter with seller financing. That course taught me much more than how to translate a business deal to contractual concepts and then to words on the page. In addition to learning that aircraft owners have to be US citizens, I discovered that my casebook did not convey crucial information that students need. For example, few of them realize that messing up some clauses is fatal – and likely malpractice – nor the ways that doctrine dictates which clauses are core provisions. (Although Secured Transactions was a pre-req for the course, only a handful of students understood that failing to define an “obligation” secured by collateral meant that the whole effort was not worth the paper it was written on.)
Drunk on that Kool-aid, I added a 1-credit drafting workshop to my Secured Transactions course. As with the seminar, students created a portfolio of documents that would memorialize a financed sale transaction, though the workshop syllabus was considerably slimmer than the seminar one. The workshop is open to students in my class, and about half sign on each time I teach it.
Fortunately, I teach at the University of Maryland law school, which has long been a leader in clinical education and other experiential pedagogy. The administration backed my efforts to learn the ropes of contract drafting by giving full teaching credit for team –teaching that first seminar, hiring a Teaching Assistant to hold office hours with students and help with administrative matters like electronic submission of assignments, and letting me add an extra credit to my Secured Transactions class.
But not every professor is as evangelical about drafting. Nor does every law school have the resources to support faculty in devising curricular reforms from scratch.
I’m writing a book to make it easy for people like me: doctrinal professors who want to add some transactional drafting exercises to reinforce doctrinal and theoretical materials and send students into their job search with a transactional writing sample and into practice knowing the difference between a representation and a covenant. The exercises are modular so that professors can start with one and then add more in future semesters. For enthusiasts I’m including exercises that can be ratcheted up to mirror complexities of practice.
What Do Law Professors Want?
Now that I know to tailor a book to reach a particular group of readers, I’m using this guest blogging gig at Faculty Lounge to solicit your thoughts about what would work in your classroom.
-- Would you prefer to add on a 1-credit drafting workshop, or to integrate materials into the casebook material you already cover?
-- Would it be helpful to get tips about reducing time grading, such as having students negotiate as teams and turn in an assignment together?
-- How many hours in a semester do you anticipate being willing to grade transactional exercises as part of your existing course? As a 1-credit add-on workshop?
-- Ten? Twenty? As many as 40?
-- Are you likely to direct your students to on-line multiple-choice questions on drafting if it reduces time you spend explaining the concepts?
-- What else should I include (or exclude) to make this book user-friendly?
If you’d like to communicate with me directly about your own experiences teaching drafting, don’t be shy. My email is firstname.lastname@example.org.
I look forward to drafting on your thoughts and experiences.