Why don't most law schools show, let alone teach how to draft and interpret, complete contracts?

Question

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.

Answer 1

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 "gentleman". 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 had to demonstrate some value-added in conducting courses through their own institutions; they did this by taking 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.

Answer 2

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?

Answer 3

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.

Answer 4

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).

Answer 5

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.

Answer 6

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.

Answer 7

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. :-)