Review: Memorializing the Meal: An Analogical Exercise for Transactional Drafting

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By Gerry Hess from Gonzaga University School of Law

How can we teach law students skills that are critical to their success in practice? Those skills range from fundamental legal analysis, such as case synthesis and statutory interpretation, to drafting sophisticated documents, such as contracts, wills, and patent licenses. For transactional lawyers, critical practice skills include the flexibility and creativity to anticipate contingencies and draft agreements to help clients achieve their goals.

Professors Grant and Foster make a strong case for the use of non-legal, familiar events to teach a variety of skills. The foundation for their article is a core concept from the adult learning and cognitive science literature – “adult learners flourish when teachers make explicit connections between students’ past experiences and prior learning.” The authors present several examples from the legal education literature that use non-legal analogies to teach legal analysis and lawyering skills:

  • Legal method, argument, and ambiguity – placement of vegetables in a grocery window;
  • Rule synthesis – comparing pieces of art owned by a collector;
  • Rule statements, case analysis, statutory interpretation, and legislative process – analyzing parents’ policies governing social activities of their children; and
  • Predictive legal analysis – advising a young woman about proper attire for her first job.

The heart of the article is an extensive example of the use of non-legal analogy in an upper-level transactional drafting course. The exercise is designed to help students anticipate contingencies and then draft an effective agreement to deal with those contingencies in a way that achieves the client’s goals. The innovative method the authors employ is to have the students plan a dinner party, exploring in detail the contingencies that may arise, and draft an appropriate agreement.

The authors include useful appendices to help a teacher adopt or adapt this exercise – a handout for students, an example of a compete exercise, and a sample agreement. In addition, the article is just plain fun to read. The authors are gifted writers with well-developed senses of humor. For example, the careful reader will learn the critical importance of coleslaw to a barbeque sandwich in some regions of the U.S. Most law review articles do not offer such important insights…

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