Of Spoil Pits and Swimming Pools: Reconsidering the Measure of Damages for Construction Contracts

To obtain a remedy in a breach of contract suit, a party must prove, and courts must determine, what damage the breach has caused. The general rule is straightforward: A party injured by a breach of contract is entitled to be placed in as good a position as if the contract had been performed.1 Ap- plying the general rule to specific circumstances - computing what it means to be placed in as good a position as if the con- tract had been performed - is more difficult

The United States-Dakota War Trials: A Study in Military Injustice

Between September 28 and November 3, 1862, in southwestern Minnesota, nearly four hundred Dakota 1 men were tried for murder, rape, and robbery. All but seventy were convicted, and 303 of these were condemned to die. 2 After an official review of the trials, the sentences of thirty-eight were confirmed and, on December 26, 1862, these thirty-eight were hanged in Mankato, Minnesota, in the largest mass execution in American history. On November 11, 1865, after three additional trials, two more Dakota followed them to the gallows

The United States-Dakota War Trials: A Study in Military Injustice

Between September 28 and November 3, 1862, in southwestern Minnesota, nearly four hundred Dakota 1 men were tried for murder, rape, and robbery. All but seventy were convicted, and 303 of these were condemned to die. 2 After an official review of the trials, the sentences of thirty-eight were confirmed and, on December 26, 1862, these thirty-eight were hanged in Mankato, Minnesota, in the largest mass execution in American history. On November 11, 1865, after three additional trials, two more Dakota followed them to the gallows

Casebooks and the Future of Contracts Pedagogy

Contracts teachers have long relied on the casebooks they adopt to help them build and shape both the content and the pedagogy of their contracts classes. The Knapp, Crystal, & Prince casebook has been particularly noteworthy in this regard, helping generations of new and experienced law teachers learn and explore contracts doctrine under the guidance of Chuck Knapp and his co-authors. As casebook authors take seriously the forces and trends in academic publishing, the casebooks are bound to change in significant ways, leading to innovation and even transformation of the course itself. Driving the change are at least six developments and concerns: (1) recognition that the course must include more attention to the concepts and skills that matter to practicing lawyers; (2) new accreditation standards that require identification of learning outcomes expected from our courses; (3) the need (if not yet the reality) to have the bar exam be focused less on knowledge and more on skills; (4) perhaps most importantly, increasing knowledge about what good learning practice requires in the classroom; (5) availability of new technologies to deliver more dynamic content; and (6) changing demands from publishers and students, partly as a result of the other forces mentioned. Our teaching is already adapting to the new law school environment, and visionary casebooks, in contracts as elsewhere in the curriculum, can and should lead the way

How to Build a Better Bar Exam

As a licensing exam, the purpose of the bar exam is consumer protection–-ensuring that new lawyers have the minimum competencies required to practice law effectively. As critics point out, however, the exam, and particularly the multiple-choice question portion of the exam, has significant flaws because it assesses legal knowledge and analysis in an artificial and unrealistic context, and the closed-book format rewards the ability to memorize thousands of legal rules, a skill unrelated to law practice. This essay discusses how to improve the exam by changing its multiple-choice content and format. We use two law licensing exams to illustrate how bar examiners could utilize an open-book format and develop multiple-choice questions that assess a candidate’s ability to engage in legal reasoning and analysis without demanding unproductive memorization of so many detailed rules of law. The first example, the case file approach, is drawn from a 1983 California “Performance Test” in which test-takers received a case file and a series of multiple-choice questions testing the candidates’ ability to read, understand, and use cases to support their legal positions. The second example discusses the current licensing exam administered by The Law Society of Upper Canada (LSUC), an open-book multiple-choice exam that tests the use of doctrinal knowledge in the context of law practice. These two licensing exams demonstrate how we could re-structure the bar exam’s multiple-choice questions to measure legal analysis and reasoning skills as lawyers use those skills to represent clients. They also demonstrate that we can do a better job of testing some aspects of minimum competence, while still using a multiple-choice exam format

Testing, Diversity, \u3cem\u3eand\u3c/em\u3e Merit: A Reply to Dan Subotnik and Others

The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. “Merit” judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam the led to the Supreme Court decision in Ricci v. DiStefano, as well as the LSAT and Bar Exam, the Article questions the way standardized tests are used in making critical gateway decisions. It argues, consistent with Title VII, that racially disparate test outcomes should prompt inquiry into whether better ways exist to determine merit. Based on studies indicating the cognitive tests predict academic and workplace success for a relatively small percentage of test-takers, and on research into assessing a wider range of skills in many fields, the Article suggests we can both better predict who will succeed as future lawyers and reduce the impact of test score racial disparities by modifying law school admissions and bar licensing processes. The Article concludes that questioning over-reliance on cognitive tests to measure merit will lead to the development of better assessment measures with more diverse outcomes, more fairness for all applicants, and more comprehensive decision-making processes that better reflect true merit