Policy

When I received my 1L course assignment, one of my favorite colleagues who also happened to play in poker tournaments and taught a gaming law course, said to me, "Contracts is like a deck of cards. If all of the topics were cards, you could shuffle them, pick a topic - any topic, and begin your class there." He promised that regardless of how shuffled the metaphorical cards became, the law still makes sense." According to his view of Contracts, I could start with Remedies, Assent, Breach, Consideration, or Defenses, and it would all makes sense by the end of the semester. Having taken the course from a professor who never met a dad joke he could resist and yet we trusted him to guide us through contracts - I did not equate contracts with the wild, unruly spectacle status that Criminal and Constitutional have enjoyed these many years.

Nonetheless, I was under the impression that everyone enjoyed Contracts because it really does have a little of everything for everyone. It is the law of interdependency and rules, it explains how we as a nation manage commerce while "relying on the kindness of strangers" (thank you, Tennessee Williams and current social, behavior, and economic scientists who study how societies order themselves relative to commerce and how that ordering in turn shapes the development of societies.

After teaching Contracts for years and starting with a different concept nearly every time, I can confidently say that there are excellent pedagogical reasons for starting with any one of the Contract Law principles that must be covered to usher one's class on their way to summer work and upper-levell courses. There isn't just one "right" or "best practices" way to teach contracts because so many people come to the subject from different places with intriguingly varied lenses to view money, business, poverty, power disparity, fairness, and foundational, implicit attitudes students have about deal making.

However, I am now persuaded that mapping an external framework, i.e., the syllabus and casebook track with the lifecycle of a contract, to a course plan provides a layered, familiar idea that helps students manage the initial wait time for the principles to connect and fall into place, like a mosaic. Since so many of the rules are tied to time and a timeline provides an organic structure for integrating time effectiveness components into the rules. Plus, it's a great way for students to create order out of the chaos of rules that tend to circle back to revisit principles and interact with each other. Whenever I've taught principles out of chronological order, I am reminded that contracts are part of everyday life, and thus seemingly familiar and easy to learn. That ease and familiarity with what students think they know and the at-times archaic rules and complexities endemic to the project. But, for students with a heavy cognitive load as new to law school, first-gen graduate school, and other similar layers that may contribute to additional stress and concern that the topic is not only manageable - but fun.

Why policy first?

Contracts is a fun course with cases that speak to human foibles and humor (looking at you, poop yard case) while also laying bare how persistent social issues like inequality are furthered through everyday, seemingly-neutral transactions. This is the reason for beginning every semester with the surrogacy cases that features the complex convergence of infertility, Artificial Reproductive Technology, inconsistent surrogacy laws, abortion, ownership of genetic material, bonding with fetal life despite no genetic connection, and at the heart of it all - contracts.

The study of contracts in the context of our painful, complicated, and yet (one hopes) joyous work of being a pluralistic nation may seem like something that distracts from learning the basic, black letter law, and harming or boring students in the interim.

Given what we know understand about the inherent and implicit messaging that all forms of communication contain, it seems like a fool's errand to imagine that out of all the areas of study, contracts is somehow neutral to the causes and conditions of subordination and inequality. 

Studying contracts, not just to learn the rules, but to understand why our legal system seems stuck when it comes to addressing keenly felt economic inequality. The policy section demands that we challenge ourselves, our profession. and our laws to take up the fight for the underresourced and vulnerable. It is morally problematic to sit by, supporting the status quo because it is difficult or uncomfortable to critically assess whether our legal frameworks are tools to use for the good of society.

If we do not engage with the greater meaning of our professional duties, we will continue to see the Enrons of the corporate world casually destroying hundreds of everyday lives, racially-restrictive property law, predatory lending aimed at vulnerable populations, and the list goes on. The law is only as good as those who wield it.This is a particularly painful point to grapple with as we have seen in our history writ large and in events that took place only a few years, months, and days ago that beg us to become better, more compassionate, and capable of seeing our shared humanity with others.