Thursday, August 27, 2009

Important points to take away from the first week of Contracts class

There are no stupid questions.

Our objectives in this course, in increasing order of difficulty, are:

  1. To learn the most fundamental rules of U.S. Contract and Sales law. 
  2. To become adept at applying those rules as lawyers to analyze the infinite variety of disputes that can come up in connection with the formation, expression, interpretation, and breach of contractual agreements. 
  3. To use those rules and those analytic skills effectively to counsel and argue on behalf of clients in the wide variety of situations in which contractual and related legal matters arise. 

The more you know about everything, the better you'll be as a lawyer. If you love learning new things all the time, there's a lot for you to love in being a lawyer.

As a lawyer, someone is always telling you you're wrong. You will have to learn to be the judge of how good your own actions and thoughts are because, if you don't, you'll always think you're wrong.

There is no single explanation for the result in any case. There are only better and worse explanations, and the courts that write the opinions are not very good at providing them. Your job as a lawyer is to provide the better explanations.
Twist the facts of any given situation, and you very well may twist the arguments that can be made. Remember the discussion in class about whether leaving an injured dog in the foyer of a vet's office before the office opened is an act the vet could reasonably take as an expression of a commitment on the owner's part to pay for the vet to treat the injury? When I posited that the owner and dog were regular clients of the vet, we seemed comfortable with concluding that it would be reasonable for the vet, upon finding the dog alone in the foyer when the vet opened up for the day, to reasonably believe the owner had made a commitment to pay for treatment of the injury. But change one fact -- let's suppose the vet didn't know the owner or the dog from before -- and we become less comfortable with our conclusion. And change the setting from a vet's office to a dog shelter, and we seem fairly comfortable in concluding that a vet who worked at the shelter, upon finding the dog, could not reasonably conclude that the owner had made a commitment to pay for the dog's treatment. 
Why did all that matter? Because  according to the Restatement (2d) of Contracts §2(1), "[a] promise is a manifestation of intention to act or refrain from acting . . . so made as to justify a promisee in understanding that a commitment has been made."
 So now, I hope, you can begin to see how learning the rules is a lot easier than actually applying them to a reality that is infinitely complicated, in which no two events are exactly the same. And how the magic of learning to analogize and distinguish cases is in figuring out how (a) two situations are sufficiently similar in all ways that matter that the legal outcomes should be the same or (b) the two situations are sufficiently different in any ways that matter so that the legal outcomes should be different.
I'm not suggesting learning the rules is easy. Just easier than actually applying a lot of them. It isn't always easy to even figure out what the rules are. First, the vast majority of contract law is state law, so there are more than 50 separate sets of U.S. contract law. Second, look at Bailey v. West --  there are several different, and not necessarily consistent, rules defining the circumstances under which someone is or is not entitled to restitution in quasi contract for unjustly enriching someone else. What do you do? Come up with an explanation that is convincing under all of them. We were able to do that, weren't we?

As you start thinking about questions like the following, you'll start thinking more like a lawyer:
  • Why did th people in the case do what they did?
  • Why did the lawyers make the arguments they made?
  • Why did one party bring the lawsuit and not the other?
  • Why did one party take an appeal? Why did the other not appeal (or also appeal)?
Law is a lot less about what people can and cannot do than it is about than it is about (1) the costs and benefits of what people do and (2) the probabilities of those costs and benefits occurring. Every time you drive over the speed limit you are doing something illegal. But you've likely concluded that you gain enough by exceeding the speed limit that the cost of a speeding ticket and the likelihood of being stopped are worth it. You've probably noticed too that when you go faster there's a greater benefit but also a greater risk of getting stopped and a greater cost if you do get stopped.

Everyone gets nervous when they speak in class, even your professor. But argument (that is, civil discussion with respect for other points of view) helps a lot, whether it's in class, in blog comments, with friends in the cafeteria, etc.

People who live in Cleveland and Detroit are special people.

No comments:

Post a Comment