Langdell’s Curse and Transactional Lawyers

langdell_portrait_vinton_03-150x150In a prior post, I criticized law schools’ heavy reliance on the case-method as a way to prepare lawyers for practice. As I argued in that post, the case method, which primarily teaches students the law through an analysis of the legal reasoning in appellate cases while ignoring most of the factual context for those cases, leads law students to think more like judges and judicial clerks than practicing lawyers.

Still, being able to think like a judge is helpful to some degree to a litigator, for it enables her to place herself in the shoes of her potential audience — the judge – to identify her strongest (and weakest) arguments. Moreover, learning the law through the case method, even absent much of the factual context giving rise to the case, gives students some exposure to what a lawsuit is, who the different parties to a lawsuit are, and how to read and understand the procedural posture of a case. It also helps students to develop legal reasoning skills in the context of a legal problem arising due to existing facts and circumstances. The procedural and evidentiary aspects of litigation are further explored and reinforced through courses on civil procedure and evidence, which are mandatory at many law schools. 

But thinking like a judge is nearly irrelevant to a transactional attorney.

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Langdell’s Curse

langdell_portrait_vinton_03Michael Ariens has, through a number of blog posts, shared with us his thoughtful sentiments about American legal education.  This post is an attempt to continue that dialogue and to consider how we can better prepare our students for practice by contextualizing legal education.

Most legal commentators believe the primary purpose of law school is to prepare students for practice.  While there isn’t a single interpretation of what that means, it must at least include the ability to help clients “solve” their legal problems. (I use quotation marks around the word “solve” because legal problems are not like most mathematical problems in which there is only one solution.)

While that objective might seem obvious to some, especially the legal practitioner, it isn’t necessarily obvious to everyone, especially in light of the pedagogical approach to legal education that most law schools take.  This is because most law school courses teach substantive law, as well as fundamental legal skills like legal reasoning, through the vehicle of the case method.

The use of the case method as we know it can be traced to at least as early as 1870, when Christopher Columbus Langdell first instituted it at Harvard Law School in an effort to make the study of law more rigorous.  The idea was to treat the law as a science, and to treat cases (the source of the law) as if they were to be poked at and dissected in order to reveal their legal principles.  By requiring students to learn the law through such demanding exercises, the case method achieved its goal – law school became a more rigorous enterprise.

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Should Courts Enforce Contracts Induced by Lying?

The most recent issue of the Marquette Law Review includes a provocative article written by Professor Allen Blair of Hamline University Law School on contracts and fraud (92 Marq. L. Rev. 423).  In the article, Professor Blair explores why courts tend to not enforce so called “no reliance” clauses in contracts, clauses in which one party disclaims any liability for fraudulent statements (which includes lies) made outside of the four corners of the contract.

According to Professor Blair, courts generally refuse to enforce no-reliance clauses on the grounds that it violates public policy to protect a person against his own fraud.  While some courts have enforced no-reliance clauses, they have generally done so only after finding that the clauses were specifically negotiated, and only to the extent that they set out the precise representation on which the other party may not rely.  Only a handful of courts have upheld no-reliance clauses without attaching these types of limitations.

While Professor Blair does not promote blind enforcement of all no-reliance clauses, he argues that courts should not ignore the numerous legitimate reasons why sophisticated parties in complex transactions might agree to a no-reliance clause. 

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