Pierre Schlag has an interesting rumination on the teaching of law:
The big problem (in fact, it’s my candidate for the biggest problem) is the tacit jurisprudence of the classroom—one which is almost never questioned, never discussed, never criticized and thus swallows everything in its path. This tacit jurisprudence is so successful that it never features as a jurisprudence at all, but registers quite simply as “law” itself. This tacit jurisprudence of the classroom is the one that inculcates repeatedly, the idea that judicial opinions, statutes, regs and other such official texts are the repositories of law and that the task of the teacher is to help the students extricate the meaning of these artifacts. ...
We have two choices. 1) Either law can be found in/elicited from these official artifacts through the usual exegetical techniques or 2)…… ? Yes, that’s right: Option 2 is currently blank–not fully formed, perhaps not formed at all. It would have to be created. The texts would have to be written. It would require a lot of hard work. You would need a group of people.
I suspect that my plans for my Mergers and Acquisitions class this fall are not what Pierre has in mind for Option # 2, but I plan to structure that class around the idea that law is to be found mainly in the contracts and related documents (such as proxy statements) parties use to effect a corporate acquisition. Towards that end, I have chosen not to use a traditional casebook. Instead, I'm assigning my Mergers and Acquisitions text and numerous sample documents. As a result, we won't be focusing mainly on case law, but on drafting and best practice. It should be interesting.
