Wednesday, March 5, 2008

Teaching Commercial Law Part II

Jim's post about teaching commercial law is both gratifying and provocative. "Law schools should actively encourage all students, and not just those who contemplate a future in business law, to complete at least one course in commercial law." He offers three reasons why a commercial law course is essential to a well-balanced law school meal: 1) commercial law is statutory and close statute reading is a useful legal skill; 2) clients pay for commercial law expertise ; and 3) commercial law courses offer students a good opportunity to learn how to integrate "legal doctrine with real world problem solving techniques."

As a threshold matter, consider what is and what is not commercial law. The commercial law curriculum consists of the big three: Sales, Secured Transactions and Payment Systems. Sales covers the law that governs supply chain transactions (goods sales and leases, domestic and international). Secured Transactions opens the door of the mind to debt relationships. It explores where capital comes from, where it goes, and how borrowers and lenders solve recurring problems of agency and control. Payment Systems covers an array of items that facilitate transactions including bank-customer relations, risks associated with debt relationships with strangers, and alternate credit enhancement techniques. These three courses are the mirepoix and Contracts is the broth that supplies the flavor base to every mutually beneficial exchange.

I agree that in a perfect world, a first rate legal education would include at least one of the big three. But, Jim's points require clarification. Yes, commercial law courses are statutory. They feature articles of the UCC and, these days, a host of other statutes, state, federal and international. But commercial law courses are not just statutory. It is wrong to imagine a section by section slog through the Articles for the sole purpose of mastering the statute (no doubt, the legal analog to the Bataan death march). The UCC coexists with common law of commercial law: "the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause." UCC 1-103. White & Summers note that this scope section, 1-103, "is probably the most important single provision in the Code." The meaning and function of the Articles of the UCC are deeply embedded in the larger and highly dynamic legal environment in which commerce occurs. Commercial law is about how law supports and regulates business. It does not begin and end within the covers of a statutory supplement or a Nutshell. It is alive and well and everywhere.

Yes, statutory skills are good to have. Sadly, though, this truth is typically distorted in the presentation. "Commercial law courses are good for you," says the colleague down the hall who teaches Constitutional Law. The subtext in such a remark is unmistakable. Commercial law is a big green vegetable. Like high fiber food, commercial law courses and the statutory interpretation skills they deliver are "good for you" but pointless and mind numbing in the consumption. (Some colleagues actually assume an "I smell broccoli cooking" look whenever advising a student about a commercial law course.) The rejoinder to those who see the role of commercial law in the law school curriculum as a kind of lead bat in the on deck circle appears in justifications 2 and 3. In good times and especially in bad, law firms and clients pay for substantive expertise in commercial law. Moreover, commercial law courses are most definitely a legal "skills" experience. They present complex questions and require sophisticated answers. A well-trained lawyer can listen to a problem, translate it into the specialized language of commercial law, locate the governing principle, identify negotiating space, and offer reasoned advice to the client. It's probably true that few students remember distinct statutory language after the exam. Instead they carry away legal instinct, the urge to "look it up," and the courage and patience to do so.

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