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The author's just referring to US. I don't know if Commonwealth law schools show students complete contracts and/or teach how to draft and interpret. But I'm flabberghast that you can graduate JD without actually reading a complete contract or sampling different types of contracts!

  1. How "if you develop the critical thinking skills necessary to understand and interpret contract law, the ability to draft and interpret contract themselves will follow"? I don't understand this theory. At some point, won't new law graduates have to see and self-teach a contract before drafting and interpreting them?

  2. If JD graduates have to work with contracts some day, why do law schools delay the inevitable? Even if not a mandatory course, why don't law schools offer an optional 2L or 3L course on perusing, drafting and interpreting complete contracts?

      In class, most likely, you will never actually read a complete contract. You will probably never study typical sections included in most commercial contracts. You will not see a sampling of different types of contracts. Instead, your contracts course will teach you contractual principles of interpretation. The theory is that if you develop the critical thinking skills necessary to understand and interpret contract law, the ability to draft and interpret contract themselves will follow.

Steven Sedberry J.D. (Vanderbilt). Law School Labyrinth: The Guide to Making the Most of Your Legal Education (2011) p 83.

  • Please don’t write answers in comments. It bypasses our quality measures by not having voting (both up and down) available on comments, as well as having other problems detailed on meta. Comments are for clarifying and improving the question. If you have written an answer in the comments above, please consider converting it to a proper answer. On this occasion, I have moved all comments to the chat, but future answers-in-comments may be deleted. – cag51 Nov 11 '20 at 23:57
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I went to law school in Australia, not the US, but I also had this experience --- that courses on contract law never involved reading any actual legal contracts, and that this latter exercise was almost completely absent from the whole program. Across my LLB and LLM, the only time we ever did anything like this was in a legal skills workshop in LLM (required for registration as a solicitor) where the teacher went through an actual legal contract and the class discussed the drafting of each of the sections, and their good and bad points. This exercise was probably about one hour over the course of about five years in law school.

As to why this is done, I can only assume that legal academics believe that it is more valuable to focus time on discrete legal issues, and the theory pertaining to them, rather than spending substantial amounts of time holistically analysing an actual legal contract. Furthermore, I think the law schools regard this kind of exercise as something you learn on-the-job in a legal firm, rather than in university programs. There is some degree of demarcation between legal theory and ideas taught in university (which is more abstract), and the on-the-job knowledge you get from supervising solicitors when starting in a legal firm (which is more concrete).

To give some historical background to this, it used to be the case that law schools did not exist at all. You became a lawyer by doing an apprenticeship under an existing solicitor, just as you would have to become a blacksmith, etc. Throughout the middle ages the legal profession was conducted on an apprenticeship model, so students learned skills by performing or observing tasks from an instructing solicitor. The size of the profession was small, and limited to upper class males, so you might have had a solicitor who agrees to take on one or two apprentices who do clerical work for him while observing his practice. In the 1200s an institution called the "Inns of Court" was established in London to teach young upper-class men legal skills and the broader social graces and skills of becoming a "gentlemen". Even then, formal legal training was light, and most of the learning was done on-the-job by apprenticeship under a practicing lawyer. (Incidentally, this institution is still around, and is now a professional association for barristers.) Students were also encouraged to learn by directly attending and observing court proceedings. In more recent times, when the universities began teaching law, they did so with the view that they would teach the kinds of higher-level abstract principles of law, while leaving other skills to remain within the apprenticeship. Gradually the apprenticeship model has waned and disappeared, but there is still some degree to which the universities consider early career at a law firm to be a supplement for this.

I partly agree with the Sedburry quote --- it is descriptively accurate about what happens at law school. I disagree with his assumption that academics assume that concrete knowledge of how to draft good contracts follows automatically. To the contrary, I don't think that legal academics think that the ability to draft contracts automatically follows from conceptual understanding, but they do seem to regard this as a skill to be learned during one's early career in a law firm, rather than something to devote time to at university. Personally, I think that is a mistake, and that it would be beneficial for the degree to include many more exercises involving full reading/critique of a whole legal contract, even if this crowds out some of the theory knowledge in the curriculum.

Finally, I will just note that you are probably not alone in viewing this as a deficiency in the law school curriculum. This is a situation where you could take the initiative and start your own study group, with the goal of reading and analysing actual commercial contracts. You could treat this like a book-club --- each week you all get a legal contract to read and discuss/critique for the next week. If you can find ten or more other students who are keen on this, you could probably go to some of your lecturers and see if any of them are interested in helping you (e.g., attending a one-hour study session each week to help with discussion). Some academics won't have the time for this, but if you've already done the leg-work of organising the group yourself (and if you meet in a room very near to their office!), you will probably be able to find a willing academic.

  • The final note about starting a student organization dedicated to reading contracts could probably be formalized in at least some Australian universities, since they've got formal structures for formalized student groups; for instance, my university has student societies based around interests (e.g. aviation, motor vehicles, various sorts of gaming or sports), religious groups, international ethnic groups, etc. A Contract Reading Club would fit right in. – nick012000 Nov 10 '20 at 5:20
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I'm going to write a second answer here, just to rebut a claim made in the other answers, which is the view that writing a commercial contract is just a trivial or routine matter once you know the underlying rules of contract law. That claim is totally false, and I do not think anyone with actual legal training/experience would believe it. There is a great deal more skill involved in good contractual drafting than merely knowing the underlying rules of contract law.

To take an analogy, you could teach a computer-science student the rules of Boolean logic, and teach them all the basic syntax of programming (if-then statements, for-loops, while-loops, etc.). Suppose you then ask the student to go out and create a program that will manage the username and password credentials for some large complex organisation. It would be absurd to imagine that this would be a trivial or routine task for the student, merely because they have been taught the underlying rules of programming. If you said to any experienced programmer that such a task is just a routine extension of knowledge of Boolean logic, they would laugh in your face. They would know that there are hundreds of aspects of good programming practice that need to be learned slowly and painfully from experience, and that there is an art to good programming that goes far beyond merely knowing the underlying "rules".

Similarly, drafting a commercial contract requires all sorts of practical knowledge, and experience of "best practice", that goes well beyond having learned the underlying rules of contract law. For example, how do you write a good preamble? Does the contract need a dictionary, and if so, what is the best way to structure the dictionary? What is the best way to order the terms? What are standard ways of phrasing certain parts of the contract, that have held up in court in similar circumstances? When making exclusions of outside representations, what is the best way to do this, and what is going "too far"? What is the best jurisdiction to invoke for a "choice of law" clause?

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    An interesting analogy, because many CS courses suffer from the exact same issue of students never seeing a large commercial code base and therefore not understanding various techniques and tools that only make sense when applied in that context. – user1937198 Nov 9 '20 at 12:51
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    To take your example it is entirely possible to get through a CS course, and have gaps in your knowledge that would result in serious security flaws if you were to implement a password storage database. – user1937198 Nov 9 '20 at 12:56
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    My CS course didn't even require "databases", that was an elective that you could choose to take, but even if you took it most of the class was very abstract using set notation, Venn diagrams... And ZERO about how you might actually connect an application to a database. (EJB? Spring? Hibernate? JPA? Nothing...) The justification given is usually that if you went into, say, embedded systems, you wouldn't need any of those but would need a different set of specialized tools. Since they can't teach both, they teach "how to learn" and you (hopefully) learn specific tools on the job. – user3067860 Nov 9 '20 at 13:32
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    The subject is called 'computer science' and not 'applied software development' for a reason. If you want to learn the former, you go to university and get a degree. If you want to learn the latter, you work in a software company for several years. Of course, if possible you should do both. – Michael Spranger Nov 9 '20 at 16:19
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    @MichaelSpranger at least some countries also have dedicated Applied Software development degrees , so one of those might match better. Imho you get what you register for with CS (and imho, it is easier to specialize with a CS degree than switch specialisation with a focussed applied degree, but if you already know where you want to go, then a focussed applied degree is likely way more fitting - unless obviously you know that you want to go broad/academic/theoretical etc.). – Frank Hopkins Nov 9 '20 at 18:53
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I'm neither a lawyer nor a law student (which, judging by the score of answers written by people of similar credentials, doesn't bode well), but I'll try to extrapolate from my experience studying engineering because similar questions get asked in that field.

From what I've heard, law school curriculums contain a lot of material and the programs are very intensive. They have likely reached the limit of the amount of information that could effectively be taught in that period, and adding to the curriculum would require either making the program longer or cutting other things out. Compromises have to be made.

Someone must have had to make the choice of what gets included in the curriculum and what gets cut from it. That person decided that drafting complete contracts is something that can reasonably be taught to students by their employers once they have graduated, and that other material is more important to teach before they leave university.

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    A good point (+1). Whenever you propose to add something to a degree, it is incumbent on you to specify what portion (of equal magnitude) you propose to drop. In this particular case I think there are things that could be dropped from law school to make room for more practical work doing contract drafting/revision (there is a lot of heavy detail in some obscure areas), but your point is certainly valid. – Ben Nov 9 '20 at 22:14
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It all comes down to the basic fact that university is not a trade school, regardless of the area of study. The distinction between Computer Science and Software Engineering that others mentioned is but another example.

If law school were meant to be a trade school then a graduate should be ready to tackle the bar exam but that is far from the case, even for excellent students. (Although reading about it in many cases the bar exam appears to have little to do with the actual practice of law and is instead just another barrier to entry).

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    "university is not a trade school, regardless of the area of study" Down here in Australia, I'm pretty sure that the politicians who control the university's purse strings tend to disagree. There was a big controversy a few months back about them removing funding for domestic students who study "useless" degrees so that the money could be funneled to students studying professional or STEM degrees. – nick012000 Nov 10 '20 at 5:26
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Their law firms must have templates or boilerplates

As a matter of law, written contracts do not need to follow any templates or boilerplates. In fact, most contracts do not need to be in writing in the first place. Where there is a written form, that is only evidence of the contract, not the contract itself.

Not only most existing contract templates/boilerplates are highly specific to certain areas of contracting — they merely just provide one way of putting those contracts in writing out of myriads possible, legally valid ways. What law school graduates are taught is what elements valid contracts must consist of, not how to put them in writing.

Knowing what a valid contract is, drafting it becomes just a routine task no different to writing any other text with specific purpose. This is what people are taught at secondary/high school, not at law school.

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    I agree with some of this (+1). I don't think it is as routine as you claim. I would also add that even when there is an existing boilerplate contract, the drafting is often awful, and it could be substantially simplified and improved by someone who is willing to review and rewrite. One unfortunate thing that happens in legal practice is that existing contracual documents get replicated even if they are awful, just because some practitioners aren't trained (or just aren't confident) to write contracts from scratch, or rewrite existing contracts to simplify and clarify their terms. – Ben Nov 9 '20 at 9:49
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    The claim that writing a commercial contract is just a routine task once you know what a valid contract is, seems to me to be essentially the same as claiming that you are a good programmer as soon as you know the rules of logic, and what loops, if-then statements, etc., look like. Both claims are of course false, because there is a great deal of art to good programming (or contract writing) beyond mere knowledge of the underlying rules of logic. – Ben Nov 9 '20 at 9:54
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    I don't understand why you make the latter claim --- why would practical experience writing contracts (or even just viewing good contracts written by others) diminish your ability to write high-quality contracts that achieve those objectives? (I don't agree entirely with your characterisation of the measurement of contract quality, but let's stipulate that part for argument's sake.) – Ben Nov 9 '20 at 10:16
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    Now you are making an even stronger claim, which is that the profession simply cannot tell a good contract from a bad one. That also seems obviously false to me. Lawyers have seen terribly drafted contracts before --- we can tell the difference. – Ben Nov 9 '20 at 10:36
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    @Greedrake Than Law must be the only subject where students do not need to re-learn writing for the profession (as professional writing is very different from what people learn in High School). – Greg Nov 9 '20 at 12:10
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Another thing to consider is that those law schools would need to get the contracts from somewhere. Where?

Unlike many, if not most answerers here, IANAL, but I have just taken on several new mortgages in buying a house and, so, signed several new contracts, which were mostly boilerplate with blanks to narrow them to us (name, new address, SSN, etc.). With most of that boilerplate existing due to regulation and consumer protection law having come from prior lawsuits. I would say that the vast majority of contracts in this world are private and unrecorded. They're between individual humans, person-to-person (probably the smallest category, though there's probably all the elements there in buying a cheeseburger in the drive-through), businesses and humans (maybe the middle category, by process of elimination), and business-to-business (probably the largest category, in my estimation, billions of daily stock transactions, boilerplate and standardized due to historical lessons learned and government regulation and lawsuits).

So, if law schools wanted to teach contracts with real contracts, they'd need to get real contracts from real entities, and, I'd think, those that elucidated real issues that showed the mechanics and theory of contract law for the jurisdiction that was relevant to their students. So they'd need permission from the parties or a jurisdiction where all court records are public (?) and a ton of effort to build such a project. You and I can have a private contract that never gets litigated or invoked and never needs to be discussed as a contract after we sign it, and we keep it private, because it has private information in it. I'm not going to share that with a law school as a teaching aid.

It's just a ton of effort for a lawprof or law librarian to pull off. That's why I think US JD Contracts courses aren't taught entirely with real contracts to read and examine. It's the same reason that Engineering isn't taught though examination of collapsed bridges and plane crashes. Yeah, there's some of that, but rarely do you have enough data to get into the nitty gritty of what frequency Galloping Gertie galloped at. Sure, you're gonna talk about that bridge and watch the video while talking about aeroelastic flutter in your Aeronautical Structures course in an Aerospace Engineering curricula, but not every element is taught through a practical example.

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    I'm not sure this would be as difficult as you think. An awful lot of contracts are drafted, recorded and stored with private law firms. Most law professors have connections with these firms, either because they do work for law firms, or because they know a number of lawyers who do. So really, most law professors would have access to a large repository of contract forms through connections with private firms. There would need to be some negotiation over IP, privacy, etc., but it is by no means insoluble. – Ben Nov 9 '20 at 23:57
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    There's also publicly available contracts like EULAs that are given to everyone who wants to use a particular product. They might be the intellectual property of the company who made the software the EULA was attached to, but educational purposes are fair use. – nick012000 Nov 10 '20 at 5:22
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Writing or interpreting a contract is an applied skill. It doesn't make sense to approach it in the abstract. When you draft a contract, you're protecting a real client's actual interests. Not coincidentally, you're also bound by professional ethics not to share those interests with anyone outside your law firm — including students of the legal profession. What's more, many relevant and potentially pedagogically useful contracts are under an NDA, and therefore can't be disclosed at all.

Drafting a contract without a tangible client would be overly generic and sterile at best and misleading at worst. Law firms — who have specific clients, and even specific client industries they might specialize in — likely prefer to teach new hires with "hands-on" training, rather than have to "unteach" misapplied theory based on overly generic understanding of a fictitious client from an irrelevant industry.

The same is true for interpreting a contract. You have to prune your search of the infinite possible ramifications a contract's language could imply, and restrict yourself to consider those areas which practically affect your real client. You can't know in advance all the legal implications of a given contract, when you're reading it, any more than you can predict the weather.

There are many laws it could interact with in various scenarios between multiple and compound parties with sophisticated relationships between and within each other. When you don't know who's interests your protecting (i.e. who can sue whom?), how do you interpret how the contract will impact the future?

There are infinite possible ways that it could "go down" in court in infinite possible lawsuits against two or more as-yet-unknown legal adversaries.

I'm not a lawyer, or even a law student; this is just a "steel-man" argument from extrapolation. So, give me half as many up- and down-votes as you'd planned to. :-)

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    In law schools I know, there is even discussion of (mock) cases and how to solve them. Why shouldn't it be possible to discuss mock contracts? – user111388 Nov 9 '20 at 16:26
  • @user111388 I agree with you; but that doesn't stop this from being the reason it isn't done. (Universities, among other institutions, are very slow to change, and I would be very curious to know whether my supposition is right.) – jpaugh Nov 9 '20 at 16:29

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