Friday, September 12, 2008

How Commercial Law Can Save the Law School Curriculum

Photo by furryscaly

Over at Prawfsblawg earlier this week, a Con Law professor (Marc Blitz) discussed a teaching "experiment" that he calls The Case-Free Class Day. I felt almost smug reading his post, as we commercial law professors have been successfully conducting this "experiment" for years now. We call it The Problem Method, or something similar. In Payment Systems, Secured Transactions, and Bankruptcy (and to a lesser extent, Corporations), I tell my students on the first day of class that we will not be reading and discussing cases; rather, we will do every day what most main-street lawyers do: solve problems. Unlike Blitz's approach (which sounds like a good one for public law, jurisprudential courses), every day in most of my classes is "case-free." Leveraging the pedagogical truism that the best learning is active learning, students are thrust into actual situations (well, at least conceivably realistic scenarios) and challenged not only to understand some concept or doctrine of statutory law, but to apply that doctrine/statute and their appreciation of the motivations of the actors involved to understand the real-world problem, explain how the law affects it (or not), and come down with a piece of advice (which may well be, often to the students' chagrin, "there's nothing the law can do for you, so can we find a business or social solution?"). This makes class totally fun for me, even the umpteenth time that I've taught the perfection requirements and the funds availability rules, and it accomplishes what everyone seems to want from us in the legal academy--making students not just think like lawyers, but to actually be lawyers, in the sense of making decisions and formulating advice not limited to the particular narrow legal issue at hand.

As a simple example, one day this week in Payment Systems, we covered the "accord and satisfaction" rules (for using a check with a "full satisfaction" legend as a simple settlement device) and a problem that challenged students to think broadly about their client advice. A small business person (lessor) had deposited a check from a disgruntled renter for half of the rent owed. The check contained the "full payment" legend, and the question was whether the landlord's depositing the check was a problem. The obvious answer, of course, was that this might well be a problem, as the check seemingly satisfied the requirements for "accord and satisfaction," so the landlord might have (inadvertently) agreed to accept half payment. The harder questions came next, much to the surprise of students trained to focus on one legal provision at a time. The client doesn't want to hear "you probably have a problem"; it wants to know "what do I do now?" This question always sets the students back on their heels. Well, someone generally says, you might refund the money if 90 days have not yet elapsed (another part of the A&S statute). Good! Problem potentially identified and solved. Assuming we're beyond 90 days, then we get to delve into the stickier questions--did the renter act in good faith in issuing the full payment check (yet another sub-requirement of A&S); i.e., was there a bona fide dispute as to the amount owed? On what basis? You mean we have to remember something about contracts and landlord-tenant law to think about whether constructive eviction is a bona fide claim here?? Yes! And the client doesn't want to hear "we could litigate that issue"! Small business people hate lawyers, our waffling, and especially our fees, and (consequently?) some 98% of all civil litigation settles today, so we need to think concretely about what we would actually say to opposing counsel (or the renter) about solving the problem efficiently. Can we convince opposing counsel that our case is strong and/or the renter's case is weak? Can we squeeze out a compromise? On what terms? Extended discussions of law, business, ethics/professionalism, and actual lawyering arise daily in my problem-based classes. What a joy! Lest we forget that commercial law affects folks from all walks of life, our exploration later this week of the negotiation rules in the context of a check-cashing outlet allowed us to discuss the business model of such an establishment and some of the characteristics and motivations of its often "unbanked" customers.

All of which brings back to mind a post by Jim Chen in the early days of this blog: Teaching (commercial) law. With this post, Jim earned himself the undying adoration of all commercial law professors by observing that our courses involve "real-world problem-solving techniques" for which "clients are most likely to be willing to pay," and they expose students to statutory law and analysis in a very real, down-to-earth way. My classroom is a no-abstraction zone. What a judge or someone else might do is relevant, but the real question for my students is "what do you actually do in light of the messy uncertainties and exigencies of real business/consumer clients in real life?" When students begin to feel like, view themselves as, and act like lawyers, formulating strategy and action based on law and the realities of life, that's a fantastically satisfying experience for a teacher.

By the way, for those at schools like mine where the Bar Exam looms large in every curricular discussion, I have made lemonade out of lemons by using actual bar exam questions (often edited to make them more challenging, realistic, or fun) as problems to be solved in class (see also here and here and here). Many states (and to a limited extent, the NCBEx) make their bar exams available online, sometimes with invaluable examiner commentary (and lecturing and writing model answers for BarBri is a wonderful way to stay current on what the bar examiners are doing). Nothing grabs your students' attention more than saying that a particular classroom exercise is a verbatim reproduction of a question from the bar exam--wanna know "the answer"? O.K., but you'll have to walk through how the problem might be solved in real life, too. Welcome to the bar!

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