For the first time since 2005, I won’t be teaching in the fall, as a member of the adjunct faculty, a law-school course in contract drafting.
In one respect, that’s a relief, as I’ll be able to continue my globetrotting unhindered. Abu Dhabi, here we come!
But at some point I’d like to resume teaching. Not because I’m the second coming of Mr. Chips, but simply because I think it important that I stick my face in front of all relevant constituencies.
With that in mind, I’ve exchanged emails with two top law schools, and they’ve told me that they prefer to incorporate contract drafting into substantive transactional courses—think “deals” courses.
I’d been prepared to discuss student evaluations, or what specifically I’d propose to teach, but I hadn’t expected to encounter resistance to the very idea of teaching contract drafting as a stand-alone course.
I don’t pretend to have any grasp of the sort of juggling involved in designing a law-school curriculum. So I wouldn’t dare to say that either of these schools is somehow mistaken. But I thought I’d permit myself to make my case, and see what you out there think.
The idea of teaching contract drafting as part of a “deals” course sounds plausible and efficient, but I don’t think that approach will result in students becoming informed consumers of contract language. Here’s why:
- Acquiring the basics of contract language involves way too much to be able to cover it in a “deals” course. As I said to one school, that’s like expecting someone to learn how to write by taking a course on Shakespeare, or existentialism.
- BigLaw deal contracts aren’t a great vehicle for learning how to draft. They’re too unwieldy—they’re bulky and contain basically the same verbiage as countless other deal contracts.
- I think I’ve amply demonstrated, most recently in this post about the contract providing for Jeff Bezos to acquire the Washington Post, that the contract-drafting culture in the big-deal world is dysfunctional. I don’t think a law school could assume that anyone with real-world experience who teaches their “deals” course is free of that dysfunction.
But saying that teaching contract drafting in a “deals” course won’t work isn’t the same as saying that it’s worthy of a course unto itself.
I’d have thought that the idea has an inherent plausibility. To warrant making a topic the focus of a law-school course, it has to offer sufficient substance, and there has to be demand for it. I think that contract drafting passes both those tests. As regards substance, I didn’t have any problem writing a 500-page book on the topic, and I keep accumulating more material. As regards demand, sales of MSCD have been robust since it was first published in 2004; that shows that there’s a real appetite for a coherent approach to contract language. And the increasing demand for my seminars worldwide suggests the same thing.
Furthermore, law schools have long taught litigation writing as a stand-alone course, rather than teaching it as part of a course on, say, class actions.
But let’s get more specific as regards what a course in contract drafting might look like. Even though I won’t be teaching, I prepared a syllabus and course description as a way of thinking through how I’d teach a course, after having learned some law-school facts of life. Go here for a PDF of my proposed syllabus. And here’s the course description:
The aim of this course is to teach students how to draft contracts that are clear and effective; how to spot issues and address them in a contract; and how to handle the contract process. We will consider the shortcomings in traditional contract drafting and how they can be fixed.
Contract language is a limited and stylized kind of writing, and mastering it can be demanding. This course will introduce topics gradually, with an emphasis on working through practical examples. Students will put into practice the guidelines contained in Ken Adams’s book A Manual of Style for Contract Drafting (3d ed. 2013), a reference work that’s used throughout the legal profession.
Students will draft contracts expressing the terms of mock transactions. They will also conduct a mock review of a contract. The final assignment will have students work on a contract for a not-for-profit organization. Organizations that have participated in previous such projects with Adams include The Breast Cancer Research Foundation, The World Wildlife Fund, Inc., and Big Brothers Big Sisters of America.
The grade for the course will be based 60% on written assignments, 40% on class participation.
The focus of this course is not what to say in a contract, but how to say clearly and effectively whatever you want to say. This course will provide an invaluable foundation for transactional work, whatever the specialty.
Again, I might have tunnel vision—I might not have sufficient perspective to say whether it would be a worthwhile use of limited resources to teach contract drafting as a stand-alone course. That’s why I’d like to hear what you think.