Transactionalizing the Casebook: 4 Steps

In a 2014 article,[1] I discuss ways of exposing law students to transactional law in non-clinical classes. One tactic I briefly describe is what I call transactional “side-bars”[2] in traditional, substantive, basic business classes like Business Associations (BA) to at least introduce students to transactional practice. Such side-bars focus on transactional facts in selected cases, rather than on the what-went-wrong facts that lead to the litigation. Transactional side-bars deal with tasks that a transactional lawyer would undertake if a client hired him/her to “do” the deal involved in the case when all was still amicable and optimistic.

To achieve this objective, one needs to analyze the transactional facts of cases, or to use the conflation coined in my title, to transactionalize cases. When I taught BA,[3] I’d select cases for a brief lecture on their ex ante transactional aspects. I’d pepper such comments here and there, a few minutes at a time, in several classes over the term. I’d delve into the 10-15 minute side-bar after the standard substantive-law discussion of the case(s) assigned for the chosen side-bar day. I called these mini-lectures “side-bars” to emphasize to students that they detoured from the litigation posture of the case-law.

I think of such side-bars as “exposure-teaching” because they only provide students a limited exposure to what transactional practice involves. I don’t say this in derogation. In fact, exposure-teaching of transactional law may be the best that can be offered in the standard non-clinical business law classes, some to greater degree than others (like in skills classes). And this alone is worthy. Even limited exposure is useful for a law graduate confronted with her first transactional matter. Historically, departures from the standard focus of BA or other non-clinical business law classes to expose students to transactional matters lacked legitimacy in academia. Fortunately, in today’s law school climate where “skills classes” and “practice-ready graduates” are hot buzz-words and transactional law has heightened cachet within this climate, such detours from the standard fare are lauded.

In fact, I advocate that it’s now time that every substantive business law course specifically allot some time to exposure-teaching of transactional practice. I believe the compounding effect of multiple business courses with distinct time allotted for transactional exposure-teaching (though limited) is what’s needed to even begin to counter-balance the dominance of the litigation perspective inherent to the case-law method. One way to do this would be to expand my transactional side-bar concept to one or more full transactionalized case sessions in every business law class, including first year property and contracts and classes involving unilateral contracts like trusts and estates. Below I outline 4 steps towards implementing such transactionalized session(s).

  1. Message the Equal Dignity of Transational Practice via Speech, Writing and Time

Acquainting students with a transactional perspective begins with at least regularly mentioning the word “transactional” in basic business classes. Why do I devote one of my 4 steps to such an obvious point? Because unfortunately, it doesn’t typically happen. Professors need to habituate definitive, repeated reminders to students that casebooks inherently highlight litigation practice because that’s their pedagogical posture. They should regularly emphasize and contrast transactional practice as an equally important universe of practice geared to fulfillment of client goals which, when well lawyered, rarely go seriously awry. In addition, syllabi should clearly indicate “Transactional Analysis Class/Segment” or something equally specific to also message in writing that a transactional perspective is important. Moreover, putting syllabi notations in different font might also help to signal the equal dignity of transactional law to litigation, despite the limited time allotted.

As for the time allotment, I recommend both: (a) peppered mini-transactional side-bars, and (b) at least 50 sequential minutes for first year business law classes and at least 100 sequential minutes for upper-level business law classes for full transactionalized case sessions.[4] Whether one allots this much time depends on the importance given to exposing students to transactional matters. I think it vitally important.[5] Familiarity fosters selection. Even students who’ve chosen business law as their focus are often unacquainted with transactional practice, instead primarily thinking of business litigation rather than transactional work. Small efforts to illuminate transactional practice can do a lot to mitigate the litigation practice bias inherent in the case-law method (despite its other virtues).

  1. Select the Case to Transactionalize From Those Typically Covered

Next, select a case, or portion of a case, to transactionalize (if this hasn’t been done already in preparing the syllabus). True, one could use a hypothetical transaction or a case that is only reviewed for its transactional aspects. However, I strongly urge use of the casebook and a selected case previously discussed in the standard manner for the case’s holding(s). This serves the very important function of highlighting case-law ‘s dual facility as a rich source of actual transactional exemplars as well as of substantive law guidance. Transactional coverage of the selected case could be in the session immediately following its standard discussion or at a more remote point during the course. The latter is preferable. It allows return to the case at a strategic time when students have finished coverage of other matters potentially helpful to improved comprehension of the transactional session. This may mean that the transactionalized version of the case facts will not be covered until near terms’s end.

In selecting which case(s) to transactionalize, I think it best if the case is memorable. The reason doesn’t really matter – engaging facts, colorful language, landmark or “important” doctrinal status, etc. – as long as the case stands out for some reason. Memorability highlights how transactional lawyers “read” the very same cases facts differently from litigators, particularly when there’s a long delay between the substantive law coverage of the case and its strategically-timed transactionalized version. Also, it helps if the case involves a number of inter-related transactions. This increases flexibility to choose which, or how much of, any transaction to discuss based on the professor’s expertise and/or what she wants to emphasize, e.g., the transactional deal points (focusing more on negotiation and due diligence efforts) or on transactional structure (focusing more on documents and parties).

  1. Assign the Reading and Analytical Component

Assign students a re-read of just the portion of the case (indicating pages or maybe only paragraphs or sentences) containing the relevant transactional facts to be covered. The assigned facts may even be of a minor, ancillary transaction, having little import to the litigation except as background. A simple reference to a “lease” or a “loan” or a “merger” can hold a wealth of possibilities for fleshing out possible details and gap-filling in a transactional session.

Ask each student to prepare for the class by assuming an ex ante situation where s/he’s hired as a transactional lawyer to actualize the deal, i.e., to do all the typical things transaction lawyers do to make it happen and to come to class ready to discuss what s/he thinks that means. If the chosen case is decades old, encourage students to try to view the facts in current-day business contexts. The study assignment could be left that open-ended or could be more refined as to issue or client-perspective focus.

  1. “Present” the Transationalized Case with Specifics

The final step is to hold the transactional class or side-bar. Remember, the transactional class will be relatively stand-alone with little learning-build-upon from prior classes. So the small peek at the transactional world it provides needs to be crisply framed with a sharp image. This means the class will have to be largely presentational lecture, with the socratic method yielding to the didactic – but definitely not necessarily the pedantic.

For example, update older cases that students might think involve small sums by translating financial facts to current day values. Or if the case involves a small partnership or corporation pre-dating the 1997 check-the-box taxation rules that spawned proliferation of the Limited Liability Company (LLC) as a favored form for start-ups and closely-held entities, then have the class re-envision the entity involved in the transaction as a LLC formed by the transactional lawyer to serve the client’s desired deal today. Or, if case facts barely reference a loan, the transactional session might take the view of an under-emphasized party like the lender retaining the transactional lawyer to document the loan. The latter session could elicit the due diligence or documents that transactional lawyers would typically recommend and/or some likely negotiation issues.

Regardless of details, by the end of the session, students should have some increased awareness of the vocabulary, focus and tasks of transactional lawyers. This is the goal.

ENDNOTES

[1] Evelyn A. Lewis, Remembrances of Early Days: Anchors For My Transactional Teaching, 15 U.C. Davis Bus. L. J. 107 (2014).

[2] Id. at 122-123.

[3] It’s been over a decade since I last taught this course. I now mostly teach transactional skills/drafting classes, e.g., Business Planning & Drafting.

[4] Although more time is desirable, substantive law coverage requirements mitigate against this likelihood.

[5] See Lewis, supra note 1, at 117 for my reasons.

The preceding post comes to us from Evelyn A. Lewis, Professor of Law at the University of California, Davis School of Law. The post is based on her article, which is entitled “Remembrance of Early Days: Anchors for My Transactional Teaching” and available here.