Academic

What?s the big idea?

By Gordon Smith, Christine, Hurt, Vic Fleischer, Fred Tung, Lisa Fairfax, David Zaring

That was the title of yesterday?s opening panel: what makes transactional law or approaches different? David Westbrook (SUNY Buffalo) observed that the legal academy, both in teaching and scholarship, centers on appellate litigation (thank you, Christopher Columbus Langdell). He observed that we generally speak of inserting transactional approaches into this appellate paradigm. Think bigger, said David. ?Can we imagine a legal scholarship built upon a transactional imagination of law?? It would be more negotiated, participatory, and generally consensual. He also suggested that we think of scholarship as conversations between individuals. This transactionally imagined scholarship would look more ethnographic than forensic.

Erin O?Hara (Vanderbilt) is radically re-thinking the first year Contracts class. The day before I had discussed introducing transactional skills in 2 discrete classes in Contracts. My idea is to give 1Ls a tiny taste of what transactional law might be like. In the Q&A Gordon asked (as he has blogged before) why not get rid of the traditional Contracts course? It sounds like Erin is doing just that. She throws out the casebook, developing all her own materials. Then she assumes we have an enforceable contract (none of that starting out with offer and acceptance, consideration, etc.). She covers the law of contract: principles of interpretation, the parol evidence rule, default rules, conditions vs. promises. At the end she covers remedies, contracts of adhesion, and ?promise non-enforcement?: offer and acceptance, consideration, mistake, misrepresentation. So she winds up she covering the same doctrine as the traditional course, but in a different order, and with a different emphasis.

Finally, Scott L. Cummings ((UCLA), the self-described ?wacky one?, challenged us to expand the definition of transactional law.  He suggested we think instead about ?non-litigation,? which can encompass a public interest perspective and community economic development as well as more traditional deal-making .

Full post as published by Conglomerate on June 12, 2009 (boomark / email).