A Contracts Drafting Challenge
by
Ron Brown

Five years ago, I was looking for a hook to get the students interested in Contracts on the first day of class. How could I show new 1Ls that Contracts really was as interesting as Criminal Law or Torts? The only thing that might interest them more than the blood and guts was, of course, themselves and surviving law school. So the very first thing I did was to write on the board in very big letters, "If you do exactly what I say, then you will get an 'A' in Contracts." After introducing myself and briefly reviewing the syllabus, I asked them to read what was on the board. Then I asked them, "Will you be able to force me to give you an 'A' in Contracts based on what is on the board?" What followed, after a little prodding, was a spirited discussion that revealed their preconceptions about contracts. It was information that proved helpful and interesting to me.

Then I told them that the rest of the semester would be devoted to answering that question; that question was what contracts was all about. That stimulated more questions. A quick trip through the casebook's table of contents revealed that the subject covered the creation of obligations and the remedies available to enforce them. I brought up the problem a few times during the semester as we completed sections of the book. Each time, they seemed interested in the possibility that a valid contract might guarantee them an "A."

Three years ago, I decided to incorporate a drafting exercise into the Contracts course. I wanted the exercise to be something they would want to do. Of course, they would want a contract that would get them an "A." So I built on the first-day hypo to create a challenge they would find irresistible. I decided to make it an extra-credit opportunity, rather than an assignment, in hopes that would stimulate a more positive attitude. Since it was irresistible, they would all do it anyway. So, during the second class I presented them with the following:

Professor X wrote on the board, "If you do exactly what I say, you will get an 'A' in this course." He hoped that would motivate students to approach the course in a way that would maximize their learning experience. Unfortunately, he has learned that the students don't take what he's written seriously. Your task is to write an educational contract that Professor X can use with his students. You must produce a valid and enforceable contract. The contract is to be written in plain language, not "legalese." You are also to write a memo to accompany your contract. In that memo, you are to explain your contract and address the relevant issues raised by each chapter in the casebook. This is not a research project; you need not go beyond the casebook and hornbook. You may discuss the issues in general with classmates and the professor, but you are on your honor to do all the writing without consultation of any kind with any other person. You may not have any person review what you have written. Your project must be turned in to Student Services, identified by only your exam number, no later than the beginning of the final exam in this course. A successful project may earn you enough extra credit to raise your grade to the next grade level (e.g., from a "C+" to a "B").

I specified that the memo should consider the issues raised by each chapter in the casebook to promote a thorough examination of contracts doctrine in a practical setting. The setting is one they can all easily understand; they are not distracted by and do not waste time trying to figure out the transaction or the parties' expectations as might occur if I used a real estate sales contract or a construction contract. I pointed out that working on the project should improve their understanding of the doctrine on which they will be tested at the end of the semester, so doing the project would provide them with a triple benefit: 1) a drafting experience, 2) extra credit, and 3) the likelihood of a higher grade on the exam. How could anyone resist?

One obstacle, of course, would be time. Students might worry that the project would take too much time in a semester, their first in law school, when time seemed in very short supply. To address this, I encouraged the students to work on the project over the course of the term rather than leave it for the end. Approached in this way, the time required each week would not be too great. To encourage them during the term, I make it a point to discuss the drafting issues raised by the cases whenever possible.

I have now used this project in my last two Contracts classes. I must admit that a significant number of students were, somehow, able to resist its allure. However, a more significant number did take part. Based on anecdotal evidence, it appears that it did provide students with the benefits promised because they did well on the exam and felt the experience was highly beneficial.