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September 03, 2010


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Matt Bodie

Wow -- a lot to think about here, which is why it's taken me a while to comment! I'm a fan of your framing here. I think it'd be a big step just to move from thinking about contracts in a litigation frame to a transactional frame. But as you point out, what we consider good lawyering (a thorough contract draft, covering the client's every need) might be overlawyering in the situation. In your builder example, I think it's an open question whether the lawyer made a mistake with the fifteen-page addendum. Obviously, the builder didn't like it, but maybe the builder was making the mistake -- or, at least, overreacting. In any event, I'm not sure "trust" is the appropriate frame for the transaction, even if the builder wanted that.

But moving beyond that example, I think you are right on about the Contracts course. I've been thinking that a "Contracts and Basic Business Transactions" course would make more sense it the first year. It would teach basic business & finance concepts, as well as provide more of a mix of common law and statutory contractual regimes. This change in approach could easily be joined with more of a focus on actual business lawyering. This article looks like a terrific place to start.

I have lots more to say on this, but I'd better post now, lest I wait another two weeks before finally saying something

Jeff Lipshaw

Thanks, Matt, for the kind words. On the builder example, I'm not suggesting one go defenseless. I just don't believe that the kinds of rights you set up in a contract to be litigated are a practical solution, and that's the kind of thing the Chicago lawyer added. Nor would I rely on trust. I would use a combination of a pretty simple contract, rigorous management of the project, and what I have in the diagram but don't explain in the post: "Golden Rule 2". Golden Rule 1 is the standard one; Golden Rule is "she who has the gold, rules." That is, you hold the money, and don't pay progress payments until you are satisfied. Far more efficacious than a litigation remedy.

new balance

We cannot always build the future for our youth , but we can build our youth for the future .

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