By popular demand or one comment from Matt Bodie, whichever is lesser!
Matt asks, apropos of the Manic Expressive post, whether I'm using a new book (I referred to doing a new prep). The answer is "yes, but..." I taught the first semester of the six-credit Contract offering at Wake Forest in the fall 2005, and Contracts II, the Sales portion of the first year curriculum at Tulane, in the spring 2007 (for common law students; I think the civil law students there take something called Obligations). I used Knapp, Crystal, & Prince for Contracts and Keating for Sales. The administration at Suffolk waited for three years before siccing me on the 1Ls (I have been teaching Unincorporated Business Entities and Securities Regulation), but the pressing need this year was for Contracts. I'm using Hogg, Bishop, & Barnhizer for a number of reasons (Knapp, et al. is excellent and there is no shortage of fine contract law casebooks), not the least of which is that my colleague, friend, and suitemate, Carter Bishop, is right there for me when I want to brainstorm about something.
It's been interesting to return to teaching contracts since I've written five pieces since teaching at Wake on contract theory, and another three dipping into metaphor theory (as an means of getting at what I think of as the mystery of forward-looking judgment). It's been almost impossible to teach the doctrine without organizing it in terms of my theoretical take, and I'm finding my theoretical take informed in almost every session of class preparation. So I'm working in parallel tracks. I'm developing the classroom materials and teaching from them on one hand, and working the article in which I'm developing the theory behind what I'm doing, on the other.
Here's the opening paragraph of the extremely nascent article:
There is probably no better example of the gap between academic law and the practice than the very archetype of the law school experience: the first-year indoctrination in the law of contracts. Although the casebooks vary in their approaches, by early December, the typical student has been bamboozled by elements of doctrine that experienced practitioners know almost never come up over the course of a long career either as a transactional lawyer or as a commercial litigator. The unreality of the first-year contract law enterprise engenders questions like these: why do clients and their lawyers spend so much time negotiating contracts that will never be litigated? Why do so many contracts contain phrases that are no more than agreements to agree? Why do so many contracts resort to weasel words and phrases that are no more than a means by which a present inchoate dispute might be punted into the future? Why do we study consideration and offer-and-acceptance when those are rarely issues in the real world? Indeed, it is a fair observation that only a tiny portion of the first-year contracts course involves the issue of contract interpretation, and practitioners know that the real world of contracts is almost exclusively about interpretation, and almost never about the vast majority of doctrinal issues – consideration, offer and acceptance, defenses, impossibility – studied in the course.
For an equally nascent take (and for a blog post far too long!) on how I'm approaching those questions, join me below the fold. Comments are certainly welcome!