Reimagining Contract Law Pedagogy

A New Agenda for Teaching

Warren Swain, David Campbell

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138036925
• eBook ISBN: 9781351712606
• Edition: 1
• Topic: Education
• Subtopic: Education General

Reimagining Contract Law Pedagogy examines why existing contract teaching pedagogy has remained in place for so long and argues for an overhaul of the way it is taught. With contributions from a range of jurisdictions and types of university, it provides a survey of contract law courses across the common law world, reviewing current practice and expressing concern that the emphasis the current approach places on some features of contract doctrine fails to reflect reality.

The book engages with the major criticism of the standard contract course, which is that it is too narrow and rarely engages with ordinary life, or at least ordinary contracts, and argues that students are left without vital knowledge. This collection is designed to be a platform for sharing innovative teaching experiences, with the aim of building a new approach that addresses such issues.

This book will have international appeal and will be of interest to academics, researchers and postgraduates in the fields of law and education. It will also appeal to teachers of contract law, as well as governmental and legal profession policymakers.

Chapter 1

Rescuing contract law pedagogy from the nineteenth century

Warren Swain

Introduction

Writing in the Law Quarterly Review, in 1886, Frederick Pollock set out his philosophy of legal education (Pollock 1886: 454–455):

Most chiefly we can help him [the student] to fix in his mind that there are such things as general principles of law; that the multitude of particulars inevitably be versed as a practical student and worker are not really a chaos; and that, if he sets out with good will and good faith, he need have no fear that the search for a true art founded on science.

Pollock was one of a number of the new breed of university law professors who put their minds to the purpose of legal education around this time. His fellow Oxford jurist, AV Dicey, wrote a book with the title, Can English Law be Taught at the Universities? (Dicey 1883). The concern with legal education at this time wasn’t a coincidence. There was a long tradition of civil law teaching in universities. The teaching of the common law on the other hand was a relatively recent development if one discounts Sir William Blackstone’s lectures – which were not part of a degree syllabus. In earlier times the common law was exclusively learnt in the Inns of Court. Cambridge only introduced the Law Tripos in 1858 (Searby 1997: 193). Oxford had a joint degree of law and history from 1850, but a separate law degree did not appear until as late as 1872 (Lawson 1968: 34–60). Law was a novel academic discipline, and there were many in universities who doubted that it deserved to be taught there. At the same time there were many in the profession who thought that law should be learnt in practice and in the Inns. The subject only began to be taken seriously by many at Oxford within living memory (Simpson 2011). Against a background such as this it was understandable that academic lawyers felt compelled to defend their discipline.

Pollock was also a well-known writer on contract. His Principles of Contract at Law and in Equity was the standard work on the subject, but it was not a book written with law students in mind (Pollock 1876). Pollock’s treatise was different from what had gone before. Earlier works on contract like the one by Joseph Chitty were written by practitioners (Chitty 1826). Earlier books on contract law, whilst no doubt useful to practitioners were, with a few exceptions, unsophisticated in their structure and methodologies. The first true contract textbook produced for students was Sir William Anson’s Principles of the Law of Contract (Anson 1879). Anson wrote in his preface that he had sought to “delineate the general principles which govern the contractual relation from its beginning to its end” (Anson 1879: v). Anson was not just saying that the law could be reduced to general principles. He was suggesting that contract law has a clear narrative structure. It was implicit in this view that all contracts irrespective of the nature of the parties or the type of contract could be fitted within his general framework.

Anson admitted in a letter to Lord Justice Thesiger that he had oversimplified a complex picture for the sake of exposition (Waddams 2011: 211–212).

I took a great deal of trouble to arrange the various parts of the subject in due proportion & order, but it wasn’t until I began to fill in my outline that I realised how much labour was needed & how much more learning than I possessed. Some parts of the subject are very interesting, and here and there it seems … that the law is still unsettled even on rudimentary points, and in such matters one feels the excitement of an explorer.

Despite the opinions he expressed to his friend, the vision of contract law that Anson promoted in his textbook was quite different from the one in his letter. The simplified textbook version is the one that has come to form the basis of the way that contract law is taught in universities. The traditional contract course is taught in a particular way which is reflected in its structure, in the subject matter that is included and excluded, and in the way in which contract law fits within the overall curriculum.

Traditional pedagogy

There cannot be many other university courses, whether in law or any other discipline, which have changed so comparatively little since the days when Queen Victoria was on the throne. The traditional structure favoured by many contract courses looks something like this: contract formation; contractual enforceability; terms and contractual interpretation; vitiating factors; breach and remedies. This arrangement has some attractions. It shows the process of contracting as if it were a story with a beginning, middle and an end. Presented in this manner the subject appears coherent and logical and even based on principles. This has advantages for those learning the subject. It gives students a sense of security. They are left feeling that contract law has a pattern rather than just existing as a random collection of authorities and rules.

The idea that the law of contract has some coherent substructure has value in pedagogical terms. It provides a ready-made structure to student learning or what the learning and teaching literature calls instructional scaffolding. There are other benefits as well. It helps to give the law of contract explanatory force. This is a good thing which is capable of producing something like the recent elegant restatement of English contract law (Burrows 2016). There are also dangers. Dagan and Heller have recently examined the legacy of American classical legal thought and the role played by Samuel Williston. They point out that “Williston replaced the unprincipled multiplicity of the common law … with the unprincipled uniformity that dominates American contract law today” (Dagan and Heller 2017: xi). In England, Pollock and Anson were involved in similar projects to Williston. From the point of view of contract theorists the lack of principle is clearly undesirable. Nor does a single uniform law of contract reflect reality. Williston, Pollock and Anson present the law as though there was a general law of contract which applies irrespective of the subject matter or the type of contract. It is doubtful whether this model of contract law ever reflected reality even in the nineteenth century. It is certainly not an accurate representation of the modern law, particularly with the rise of the statutory regulation of contract law.

Not only does the traditional approach fail to reflect reality in large ways by promoting a general law of contract, but also in smaller ways as well. It places emphasis on some features of contract doctrine at the expense of others in a way which fails to reflect the character of most contract disputes. It is, for example, comparatively rare to find a modern authority on contract formation. Whilst formation is sometimes contested particularly in cases of tendering and the “battle of the forms”, it is quite difficult to justify taking up large parts of the syllabus with the doctrine of offer and acceptance. Most contracts are after all conducted on simple standard form terms. The idea that contracts are individually negotiated by the parties is, to say the least, a very long way from normal practice when one of those parties is a consumer. There is an added reason for dissatisfaction. In the absence of a large body of modern authorities on contract formation, those used to illustrate these principles are of considerable antiquity and do not reflect modern practices. A leading case like Adams v Lindsell ((1818) 1 B & Ald 681) has some merit as an authority in showing an exception to the rule that an acceptance must be received. The more important point though is that a case such as this only operates as a default rule where no provision is made. Ultimately it depends on the expectations and intentions of those who are contracting. The postal rule is remote from modern life at a time where a contract is much more likely to be concluded by an exchange of e-mails than a letter. As Brownsword demonstrates, the point is not just that contracts are more likely to be concluded by e-mail than letter, but that new technology has a growing role in the business of contracting in a whole range of ways.

Because of the way that the traditional contract syllabus is structured it becomes difficult to devote sufficient time to two issues that are incredibly important in practice: contractual interpretation and remedies. This need not be the case. As Campbell points out, remedies are generally, though not universally, taught first in contract law courses in the United States. Elsewhere they are often tagged on to the end of the syllabus when in fact the topic deserves to be central. The traditional course also leaves a lot out altogether. Its focus is unduly narrow on cases that go to trial. This is not to say that elements of the content of traditional contract course have no value. The nature of agreement and bargain does raise profound and important questions about the very nature of contractual liability. Yet even such fundamentals are not always easy to discern when seen through the prism of decisions such as Carlill v Carbolic Smoke Ball [1893] 1 QB 256 no matter how entertaining. Legal doctrine sits at the heart of contract pedagogy and merits separate consideration.

One of the main features of the traditional approach is that the subject is taught using the case method. For many students who study contract law early in their degree, contract law serves as an introduction to legal method. In its purest form this pedagogy utilises casebooks. As Capper explains, there is a long tradition of using casebooks, often combined with the so-called Socratic method. In modern times the father of the case method was Professor Christopher Columbus Langdell (Langdell 1871). Langdell’s casebook was a collection of materials and nothing else. There was no commentary. In England Professor Sir John Smith and his former colleague at Nottingham University Professor JAC Thomas pioneered this method in the 1960s. Casebooks are usually associated with the United States, but they are still used in various jurisdictions. Roberts’s chapter, for example, gives an account of teaching using the casebook method in New Zealand.

Capper and Roberts give rich accounts of the strengths and weaknesses of the traditional pedagogy. A few can be highlighted. As Roberts points out, “The benefits of the casebook method and forcing students to read a large number of cases is probably increasing, since students in the second decade of the twenty-first century are so ill-equipped to concentrate and read for long periods of time”. The old adage, “You can lead a horse to water but you can’t make it drink” seems particularly apposite. There are other dangers in this type of approach. Capper and Roberts both observe that the cases alone, whilst essential, are likely to confuse students unless supporting material is provided. In Langdell’s original casebook there is nothing to help or guide a reader beyond the way in which the material is arranged. Students need more of a structure than this. Arguably the most important contribution of the lecturer to their students’ learning is to provide their audience with an intellectual road map. Without it the law of contract just becomes a procession of cases. The case law remains central to the way that legal practitioners view the subject even in a jurisdiction like New Zealand where so much of the law is included in the contract statutes. Yet the law isn’t just about cases. A student who only understands the case law is likely to be left with a very partial view of the subject. This is not just the old debate about whether the study of law in a university should prepare a student for legal practice. Merely studying the case law gives an unduly narrow view of the subject. All but the most able students are likely to be unable to make much of the authorities without a great deal of guidance. If cases appear in a casebook in abbreviated form it might not even be a good training for reading cases. But if cases are not the end of contract pedagogy they are a necessary beginning. It is almost possible to think of that some aspects of the law curriculum could be taught without case law or at least a bare minimum of authority. Public Law at least outside hard core administrative law, probably falls into this category. Contract law without cases is scarcely a subject at all. Even contract theory is rather difficult to teach in the abstract.

Contract pedagogy and contract doctrine

A number of writers in this volume concentrate on particular contract doctrines or subject matter. This approach is usually overlooked in the pedagogical literature, which tends to focus on generic methods of teaching delivery. Even when the focus is on law teaching the discussion rarely gets sufficiently fine grained to talk about the way that a particular topic can be taught. Legal doctrine remains a central part of the student learning experience. It provides the building blocks of the subject. Even here the traditional way of teaching the subject is unsatisfactory. The leading English work on contract law (Peel 2015: 1) begins with the following definition of a contract: “A contract is an agreement giving rise to obligations which are enforced or recognised by law”. Statements of this kind can be found at the beginning of many of the other contract textbooks. The idea that a contract is an agreement is often linked to the notion that a contract is a bargain. These ideas are examined in Hogg’s and Morgan’s chapters. Hogg and Morgan both conclude that agreement and bargain still have very important parts to play as underlying principles but they also conclude that neither provides all the answers. Hogg warns that “we need to take greater care that we do not over-egg the agreement pudding”. Morgan points out that there are clear instances where the concept of bargain is “redundant”.

Contract law remains largely a “black letter subject”. It does not follow that a particular doctrine can only be taught in one way. There is room for innovation in ways that are both fundamental and would improve pedagogy. Some areas of contract doctrine have lacked a satisfactory intellectual framework for a long time. Bigwood’s chapter discusses a striking and difficult to cure example of the problem which concerns the vitiating factors of duress, undue influence and the unconscionable bargain doctrine. He suggests that rather than exploitation what is needed is “a more complete and nuanced conceptual account of ‘victimization’ in connection with the procurement or receipt of contractual benefits, ‘victimization’ including ‘exploitation’ but not being exhausted by that particular concern”. As Bigwood’s discussion shows, one of the challenges facing lecturers is to provide a coherent conceptual structure but an even bigger obstacle to explaining the material involves marrying good pedagogy with the actual practice of the courts.

Contract law and context

A major criticism of the standard contract course is that it is too narrow. It is rare to find a contract course which engages with ordinary life or at least ordinary contracts. In his humorous piece on legal education, James Gordon gave what he called an “honest” course description for contract law (Gordon 1991: 1696):

Contracts. Study rules based on a model of two-fisted negotiators with equal bargaining power who dicker freely, voluntarily agree on all terms, and reduce their understanding to a writing intended to embody their full agreement. Learn that the last contract fitting this model was signed in 1879.

There is a good deal of truth in the caricature. Part of the problem is the way in which students are left without even a flavour of everyday commercial realities. This can make the subject matter feel remote and abstract. But the consequences are more serious than that. An account without context is incomplete. It fails to explain why contract doctrine is applied in the way that it is, in a particular context. It is possible to promote a formalist view of the subject but still regard context as playing an important role in pedagogy. This is reflected in the way that in England at least commercial contracting is central in practice and also in the way that the subject is taught. Yet at the same time it presents a partial picture.

The context of a transaction is potentially more than just about the background against which contract doctrine is applied. There are a number of different contexts highlighted by a number of the contributors. One of these is the prevailing commercial and intellectual context within which the law operates. Jessel MR famously said in Printing and Numerical Registering v Sampson (1875) LR 19 Eq 462 at 465 that:

[I]f there is one thing which more than another public policy requires, it is that men [sic] of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice.

This statement doesn’t reflect the way that contract law operates today. In modern times there are many more limits on what the parties can agree to. There are numerous restrictions on unfair terms including: Unfair Contractual Terms Act 1977 (UK); Fair Trading Act 1986 (NZ) and Australian Consumer Law 2010 (Aus). The point is a larger one, however. As Brownsword shows, the law of contract sits within a complex regulatory framework. Public policy whether statutory or at common law is not a major feature of many contract courses. Perhaps it should be.

Students come to contract law with their own experiences of contracting. Those experiences can be utilised in the learning process. This gives an advantage to contract teachers as opposed to, say, those teaching company law or intellectual property. It is a source of insight that is not always very well utilised. A possible ...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• List of contributors
• 1 Rescuing contract law pedagogy from the nineteenth century
• 2 Agreement
• 3 Bargain
• 4 Key themes in the teaching of remedies
• 5 Exploitation
• 6 Law in Action
• 7 Students as consumers: using student experiences to teach consumer contract law
• 8 Teaching the law of contract in a world of new transactional technologies
• 9 Contract theory
• 10 Teaching contracts from the perspective of relational contract theory
• 11 Human rights reasoning and the contract law scholar
• 12 Contract law teaching: teaching from the case law
• 13 Making use of new technology
• 14 Doing away with the case method: what could go wrong?
• 15 Insights from outside the common law
• 16 Contract law pedagogy: a new agenda
• Index