Below is a link to an article in the Times apropos of our class discussions over the last couple of weeks.
If prior to class on October 12, I receive an email from you or you hand me at that class an answer to the 2010 Mid-term (to be found under Prior Posts “Mid-term” – near the end of the postings), I will read it and give you my reactions. You should take the exam under test conditions: Open Book but limited to 45 minutes of writing time. After you have completed your answer, you should examine the three other files in that Post which should give you an idea of what you got and what you missed. Good luck.
A couple of years ago, Bill Maher (appearing on Leno), proposed that Donald Trump reminded him of an orangutan and, “subtly” referencing Trump’s previous “offer” to the president, announced that he would donate $5M to the charity of Trump’s choice if Trump could prove that he is not the spawn of an oranguan. Trump seized on this, telling “Extra” television that he made “an absolute acceptance” of the offer by sending a copy of his birth certificate to Maher. Trump eventually sued Maher to collect on the $5M, before withdrawing the suit “to be amended and refiled at a later date.”
Why did Trump drop the suit? He would have to show that he was justified in believing this wasn’t a joke (that he had the power of acceptance).
A/V will be taping the class on 9/15, 9/28, 9/29, 10/5, and 10/6.
We will not meet on Wednesday September 10, Monday September 14 and Wednesday September 23. Instead we will meet on September 4 at 2 p.m. in A110, September 18 at 2:30 p.m. in A110 and October 2 at 2 pm in Room F108.
If you’re not an incoming 1L, stop reading. This column is not for you.
Greetings to all 1Ls joining the ranks (and filling the coffers) of law schools everywhere! The first thing you’ve probably done to get ready for law school is to buy books. Then, you bought more books. A lot of books. Your backpack is bursting with Examples & Explanations, commercial outlines, handy dandy quick look charts, nutshells, hornbooks, and other study aids.
After you went to fix your back at the chiropractor’s office, you probably cozied up to a 2L or 3L to obtain their “outline” of the course. Then, while still nervous, you felt maybe a bit of relief because then you had all the answers.
Sadly, you don’t. You just have a lot of books and a suspicious outline.
Then something horrible will happen. One day in class, someone will boast they have the outline from the person who had the highest grade last year. Panic and envy will set in all at once. For in your mind, that will guarantee that the wisdom of the outline will transfer to that person, guaranteeing the recipient of the outline the top grade. It’s like touching a holy artifact.
This story may end in you successfully passing the class, but thus far, nothing in the story involves learning the material. Learning involves, at a minimum, the following steps:
1. Reading. First and foremost, read the cases, the notes at the end, the footnotes, everything. If you have not taken a single note while reading, then you aren’t going to retain it when the professor calls on you. If you have used a highlighter (whatever color you choose), you also are not going to retain it. The bookstore is full of used books that look like a kindergartner has colored them, with beautiful rows of pink, yellow, blue, and green. If you’re guilty of this, you have not condensed the material into your own understanding.
If you think you read the material once and you’re done, you are wrong. You have to think about the reading, then read it again, think some more, and then move to step 2.
2. Brief the case. Law students start out by “briefing” cases. That means finding the holding, the relevant facts, the rule to be applied, the policies behind the rule, and the consequences of ruling in the alternative. Here is an example.
By the time law students transform into 2Ls (or sometime after the fourth week of law school), they stop briefing cases, instead “book briefing” cases. In essence, if done right, it will have the same components as briefing will have. At worst, they have degenerated into using a highlighter, or worse, several.
3. Take notes in class. Depending on the professor’s style, the prof might be giving you the black letter law. Or, the professor may be engaged in asking you hypotheticals to flesh out whether or not you know which facts are relevant to the holding or not. Regardless, take notes, for that is the basis of active listening. If your professor allows electronics, ignore emails, chats, and online shopping. Just have your notes open.
4. Digest the class notes, the book briefs, and other information into an outline. Outlines are your understanding of the information and material covered, both in class and any additional casebook material. Do this every week, for your notes may not cause you to recall information as well as you had hoped. The benefit of an outline is not in having it, but in creating it. Creating an outline is the process of solidifying what you have learned.
5. If you are still sketchy on a topic, consult additional materials. The first place to turn is a hornbook. You can find these in your friendly neighborhood law library. The easiest way to find the material is either 1) look up the topic your class is covering or 2) look up the cases your class covered. In most instances, you’ll be able to find the topic with ease, and have way more information than you want. Then, move to step 6.
6. Consult your professor. If your prof is worth his or her salt, then you should be welcomed with all the questions about the topic you might have. Write them down in advance. Some students forget their questions the minute they walk into a prof’s office.
What about all those extra books on which you’ve spent money? You probably shouldn’t spend your extremely limited time looking at them (unless your instructor recommends or requires them), with a couple of exceptions:
If you are desperate for a 30,000-foot view (you have lost sight of the entire forest), then you might look at the Nutshell series. Don’t expect a deeper understanding of the subject here.
If you want to try your hand at some hypos, you might take a look at the Examples & Explanations series. The series provides a general introduction to the topic, followed by some hypotheticals with analysis of how those hypos turn out under the case law (which is not shocking as they are frequently taken from cases). It’s good practice, if you’ve done the steps above. You might even be so lucky as to have a lazy professor who takes questions from the Examples & Explanations series.
Notice what is missing from this list. There is no mention of commercial outlines. Unless you have a commercial outline written by someone whose name your professor recognizes, then, in my opinion, you should probably avoid it like the plague. I will make one exception here: The black letter law series of outlines are frequently written by recognizable names (Calamari co-authors the outline and also writes the hornbook). Commercial outlines give you a 15,000-foot view of the topic. They do not give you a deep understanding of the subject.
NEVER consult a commercial outline otherwise. You are distracting yourself from the reading of the course while reading other material, some of which may not be useful. Some of the material may even add to your confusion.
ONLY consult these tomes to supplement what you have done in steps 1-6 above. These sources will never replace the understanding that occurs when wrestling with the material assigned in class.
I would tell you to never consult a 2L’s or 3L’s outline, but I know you will. If you do, only use it to supplement your own outline. Keep in mind, you have someone else’s understanding of a different class. Yes, it may be the same subject and the same professor, but that doesn’t make it the same. The 2L or 3L probably focused more in the outline on subjects that were confusing to the outline’s author. Are those same subjects less confusing for you? Maybe the author of the outline glosses over some things that he or she thought (rightly or wrongly) too easy.
Having read outlines for my class, I have seen many, many mistakes. Other times, the author has copied and pasted from commercial outlines, meaning that the author of the outline didn’t synthesize the course. If you take on someone’s outline, realize there are risks. You have also not engaged in the learning that could have taken place had you just developed your own.
In my humble opinion, many students spend too much time looking at all these extra materials for answers, when they could have spent less time getting better answers if they had slowed down, read more carefully, and followed the steps I’ve listed above. Nothing saddens me more than watching 1Ls with injured backs carrying around secondary materials they do not need, and should not want.
A student emailed me: “If the Offeree presents a counter-offer that terminates the original offer and even if the Offeree tries to accept the original offer the Offeror is free to reject him/her.
You said you did not agree with this and thought that “classical contract law” in this regard was out-dated.
I’m wondering if I tried to make an argument in favor of this practice on an exam, would I be considered wrong merely because you think the practice does not makes sense, or if I make a reasonable argument would I still be given credit for my efforts?
Basically would my argument be futile simply because you think the practice is unfair or don’t agree with it…”
In prior education, you may have been expected to regurgitate the professor’s theories (or other nonsense) on exams. Garbage in, garbage out.
Not so in this class, and I hope not so throughout your law school career. Please re-read the “Introduction to the Course.” The focus of professional education is on you, not on the professor. If we are doing our job, we are like guide dogs helping you get to the destination you desire (our default assumption is that you want to become an excellent attorney).
If you make a good argument, you get points on the exam.
The issue is not whether I or the common law gets it right. The reason that I brought up the issue is for you to focus on the issue of perspective, that whether there is an offer is determined by what the offeree is justified in understanding. In particular, this focus can challenge classical rules.
I believe that an ethical negotiator would feel reasonably bound to their offers and would not use the offer/counteroffer rules to reject the offeree’s acceptance of the original offer. But that is a weak argument and would lose me points on the exam. The stronger argument, what I am trying to lead you to understand, is that the offeree is justified in believing that the original offer remains open. (In negotiation theory language, that it is a “cover offer” for the negotiations.)
But, to the main point. Don’t worry about me. Worry about your ability to serve your future clients.
I grade based on how you apply the law (as it exists) to the facts. You may find on the exam that the law as it exists doesn’t help your client and you may need to make arguments for the extension, modification, or reversal of the law. Unsurprisingly, you may find that I have modeled or made similar arguments in class.
Bottom line, don’t worry about my political or social views. Worry about my views about the law only to the extent that they reveal something about the law (not me). I am not trying to spoon feed you. If I succeed, you will come to understand the beauty of contract law and the ways in which you can find fulfillment working and developing it.
As all terms for sharp dealing derogate one group or another, when we encounter or discuss sharp dealing, our examples will be of the group known as the Ferengi. I assume that none of you have Ferengi connections.