Teaching Contract Drafting through Caselaw—A Syllabus and A Collection of My Musings about Contract Drafting Based upon Recent Cases

Abstract

Law Schools are under ever­-increasing criticism for their failure to teach lawyers how to actually practice law—particularly on the transactional side of the practice. That criticism is basically a criticism of the caselaw method of teaching law school subjects—a method that relies upon the reading of appellate decisions providing lessons in common law doctrine that are applied to a particular set of facts. While there are plenty of things to criticize in the current law school curriculum, the fundamental benefits of the caselaw method is actually not one of them—even for those who seek to become transactional lawyers rather than litigators. Indeed, to attempt to teach the "how" of contract drafting without a proper grounding in the "why" of contract drafting would be a waste of time. Certainly more practice skills courses taught by those that have actually practiced for a significant period of time would be a good thing—but not at the expense of the basic curriculum taught by the old­ fashioned, but effective, caselaw method. Instead, what is needed is a recognition of the value of the caselaw method in actually teaching transactional practice skills as well as common law doctrine, the mastery of which is essential to becoming a good transactional lawyer. What follows, then, is a Syllabus created by the author for a contract drafting course that seeks to balance the teaching of practice skills with the importance of a solid grounding in relevant caselaw; together with a collection of blog postings by the author regarding how various contract provisions in the M&A arena should evolve (but not always have evolved) in response to developments in the caselaw. The blog postings are all available at privateequity.weil.com glenn­west­musings. Many of the cases listed in the Syllabus are the subject of one of the blog postings that highlights the specific drafting issue and the common law doctrinal issue involved. This should be considered a supplement to my Contract Drafting 101: A Checklist Derived From Recent Case Law, http://ssrn.com/abstract=2805481.

Keywords: contracts, drafting, caselaw method

JEL Classification: I21, K12, K10, K40