Teaching the Law School Curriculum - Institute for Law Teaching ...

140 Contracts
terms, or screens showing that the user can gain access to the service or the software before assenting to the terms.
I then ask for examples of electronic agreements that comply with that particular strategy. I put the students’
print-outs up on an opaque projector and zoom in to show the pertinent features. (The zoom feature is necessary
because the font size is rarely large enough for the whole class to read. If an opaque projector is unavailable
to you, you could collect the printouts ahead of time and put the best of them on overhead transparencies before
class and then use an overhead projector in class.) Alternatively, in my all-laptop class last year, the student
read out the website address, and the class went directly to the website to see the website firsthand. In many of
these sites, the sequence of screens and hyperlinks, as well as their layout, is crucial to determining whether valid
assent results.
This assignment distinguishes between the vantage points of transactional lawyers and litigators. Before assigning
the article and again in the class, I stress that the transactional lawyer who uses these strategies to advise
a client wants to have a margin of safety beyond the actual line between valid and invalid assent. The client will
be well served if the validity of the assent process does not result in litigation, let alone a loss in the courts. On
the other hand, a litigator trying to enforce a term in an electronic form agreement does not care whether the
client had any margin of safety; he or she is trying merely to determine whether the assent process in that particular
case was over the line between valid and invalid assent. In support of this point, the article mentions several
cases in which assent was upheld, even though not all of the strategies were met. This distinction between
transactional and litigative settings introduces a valuable lesson to first-year students, who spend much of the
year reading the results of litigation and seldom understanding how differently a transactional lawyer must look
at the law.
An additional benefit to this assignment is that it exposes students to contract language and gets them to think
about the language that they have been ignoring in their everyday life, as they scroll past screens to get to the assent
button. Each semester in which I have made this assignment, about 10% of the class has inadvertently ordered
goods — raising a superb question about the validity of inadvertent assent.
Ethics: Client Interviews and Witness Preparation
Christina L. Kunz, William Mitchell College of Law
In addressing lapse of an offer by death of the offeror, the contracts casebook poses the case of an aunt who
offers to pay her nephew $5,000 if he attends, or agrees to attend, her funeral after she has died. (E. Allan
Farnsworth, William F. Young & Carol Sanger, Contracts: Cases and Materials 185–86 (“PROBLEM”) (6th ed.
2001)). Did the aunt make an offer for a bilateral contract, which the nephew validly accepted during the conversation
with his oral assent? Or was she bargaining for a unilateral contract, in which only his performance of
showing up at the funeral would constitute acceptance? If the former, and if the nephew can prove it, the contract
obligation is a debt that the aunt’s estate owes to the nephew. If the latter, the offer terminated on her death
before the nephew could accept through performance, and he has no contract rights. The aunt’s wording of her
offer may be determinative on this issue, but she is no longer alive to testify to that. The nephew is the only remaining
witness to this conversation, and he is the client of each student.
I will play the role of the client and ask the students to interview me. When they get around to asking questions
about my conversation with my aunt, I pretend not to remember the details of her offer and I eventually
ask why the details are important. Should the students/attorneys inform me of the distinction between bilateral
and unilateral contracts and explain that I will recover only if my aunt and I exchanged promises during her lifetime?
Would that encourage me to “remember” the facts in a way that supports my claim? Is that any concern of
the attorney, so long as the attorney reminds the client to tell the truth? When preparing the witness for a hearing,
how far can the attorney go in helping the witness tell a clear, convincing story?