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Charles Calleros - Published Descriptions of Teaching Workshops and Demonstrations: Using Both Nonlegal Contexts and Assigned Doctrinal Course Material to Improve Students' Outlining and Exam-Taking Skills, 12 Perspectives 91 (2004). Effective Use of Simulation in CD-Rom or DVD Format in Teaching Difficult Law Concepts, Proc. of the Winter Int'l Symposium on Information and Comm. Tech. (2004). Demonstrations and Bilingual Teaching Techniques at the University of Paris: Introducing Civil Law Students to Common Law Legal Method, 12 Perspectives 6 (2003). Introducing Students to Elementary Legislative Process and Statutory Analysis through Experiential Learning in a Familiar Context, 38 Gonzaga Law Review 33 (2003) (symposium on teaching techniques). Using Demonstrations in Familiar Nonlegal Contexts to Teach Unfamiliar Concepts of Legal Method to New Students, 7 Leg. Writing 37 (2001). ESSAY - Reading, Writing, and Rhythm: A Whimsical, Musical Way of Thinking about Teaching Legal Method and Writing, 5 Legal Writing 1 (1999) (presented to 10 audiences across the nation as a teaching workshop). Classroom Teaching Videos: Rules for Monica (2002) (legal method in a nonlegal context; Japanese subtitles added 2004 for use in Kobe, Japan); The Promise (2002) (exploring reciprocal inducement and reliance; versions in English, French, and Chinese languages). Descriptions of these are set forth below. Related Presentations on Teaching Techniques: Numerous presentations at national teaching workshops for the Association of American Law Schools, the Society of American Law Teachers, the Legal Writing Institute, the Institute for Law School Teaching, and individual law schools on various teaching techniques in the classroom, including those with diverse student bodies.
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Charles Calleros - Teaching Tool: The Promise Guide to the video, "The Promise" © Charles Calleros 2002, and forthcoming in Friedland & Hess, Teaching the Law School Curriculum (Carolina Academic Press) Exploring the Difficult Concept of Reciprocal Inducement The Farnsworth, Young, and Sanger contracts casebook introduces the reciprocal inducement or "bargain" branch of the consideration requirement with Kirksey v. Kirksey, a cryptic 19th century common law case that explains majority and dissenting votes in two sentences after summarizing the facts, leaving much room for students to speculate about the court’s rationale and to develop their own arguments. If one were to simply ask students to read, analyze, and "brief" this case, they would probably be left scratching their heads. To get the most out of this case, I ask them to fill in the gaps in ways suggested by the typical entry below from my syllabus, which is followed by the text of the case, so that you can see the object of my instructions:
Kirksey v. Kirksey
As suggested by the excerpt from my syllabus, the Kirksey case is followed by note problems that help students draw distinctions in cases raises close questions about reciprocal inducement, about whether a promisor was induced to make his promise by the prospect of some promise or performance by the other party, or whether the other party’s act was simply a means of collecting on a gratuitous promise, which is generally not enforceable. Also as suggested by the excerpt, I have developed my own problems, which I hand out to the students with my syllabus, a few of which relate to this concept of inducement:
The facts of Kirksey v. Kirskey also raise questions of reliance, which might lead to an alternative form of recovery, under promissory estoppel, rather than under a contract supported by consideration. To help explore both the issues of reciprocal inducement and reliance, I have this year devised a new problem set, a series of three hypothetical cases, set forth in a script for skit presentation. With a grant from the Institute for Law School Teaching, I recorded this skit in a video called "The Promise," which I produced originally in the French language, because I prepared it for students at the University of Paris. It is now available in English, also thanks to a grant from the Institute for Law School Teaching. Following is the script in English:
Dan’s family opens the door to greet Debbie, who is bearing birthday cake for one of the girls. Debbie: A special cake for the birthday girl! Dan and Nancy: Hi. Look what just arrived, kids! Nancy: This looks great. And how is William? Debbie: Still ill, but he is recovering. He’s excited about my plan to open the bakery. Nancy: Did you get your loan from the bank? Debbie: Unfortunately, no. All I need is $10,000 to get it started. We’ll get it somehow. Dan: Well, we heard as much, and we’d like to help. We just finished writing this Get Well card for William. But we have a card for you as well, in gratitude for all you have done for us over the years. The card reads: "Debbie, good luck with your new bakery. To help you get started, please allow us to make a donation of $10,000. Your friends, {signed} Dan and Nancy. Debbie: Really? Are you loaning me $10,000? Nancy: Not a loan. This is a gift. If you are available this coming Monday, let’s all meet at the bank at noon and arrange the transfer of funds. Debbie: I’ll be there. Thank you so much. We will never forget this. I will make you proud with this bakery. Later that day . . .. Nancy: {getting off the phone}: That was Doug. The buyer back out of purchasing that cabin we wanted so much. It’s ours for the taking. Dan: No fooling!! That’s great!! Nancy: But we’ll need all of the cash we have on hand. Dan: Right . . . Ohh, shoot . . .. The next morning . . .. Debbie (on the phone):
Hello, Dan. How are you? Oh, hi Nancy. Hey, we’ve got a conference
call! * * * * * Case #2: Reliance Same as above, except for the final phone call, which goes as follows: Debbie: Hello, Dan. How are
you? Oh, hi Nancy. Hey, we’ve got a conference call! * * * * * Case #3 - The Estranged Sibling Charles (on the phone): Hi,
John, this is your brother, Charles. Case #1 illustrates a pretty solid example of an unenforceable gratuitous promise, Case #2 presents a plausible case for promissory estoppel, and Case #3 invites students to distinguish Case #1 on the issue of reciprocal inducement and to develop an argument that Charles was genuinely induced to give his promise by the prospect of meeting with this estranged brother.
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Excerpts from Teacher’s Manual for
Charles Calleros, Exercise 8-1 This exercise is set in the nonlegal, family context introduced in Chapter 5, Section I.B., illustrating the concept of stare decisis. It invites students to express their interpretations of the holdings of four cases and to derive one or more tentative rules from the cases by generalizing from the particulars of each case. It illustrates how a synthesis of two or more cases may help to clarify the uncertain holding and rule of the first case. It also shows how a series of cases may reveal a coherent legal structure that is not fully apparent in any one case when viewed in isolation. Companion exercises for outlining and taking essay examinations are found in Exercises 8-2(3) toward the end of this chapter and 9-1(2) in the next chapter. Exercises 8-1, 8-2(3), and 9-1(2) are the subject of a video production in which a mother and a daughter act out each of the four cases in a vivid and entertaining fashion. You can find out how to obtain a copy of the film on VHS or CD-ROM format by e-mailing me at charles.calleros@asu,edu. The video was developed with a grant from the Institute for Law School Teaching at Gonzaga School of Law. I. Case #1: Room for Interpretation. The outcome of this case is clear: Carmen disapproves of Monica’s actions on the facts of this case. Moreover, Carmen appears to reveal her underlying policy considerations: her statements suggest that she is motivated by concerns about Monica saving adequate time for sleep and homework. But Monica should be curious about the precedential effect of this decision so that she can better predict her mother’s reaction to future excursions and can conform her behavior to Carmen’s wishes. {We might assume that repeated violations of Carmen’s expectations could induce Carmen to "ground" Monica or mete out other discipline.} In arguing for different interpretations of the holding of this case, students typically identify the following facts as arguably material to Carmen’s decision: 1. Monica came home after 11 p.m. ("It’s after 11 o’clock . . .") 2. Monica went to the pizza parlor after the football game rather than returning home. ("Next time, after the game, don’t . . . .") 3. Monica lingered at the pizza parlor after eating her pizza. ("Next time . . . don’t hang out at the pizza parlor.") 4. Monica had "plenty of homework to do" and arguably had not been getting adequate sleep that week. ("You need your sleep . . .") 5. Monica had not called to inform Carmen where she was going after the football game. ("Where have you been?") Carmen might have more clearly stated her "holding" in this case by specifically identifying the fact or facts that compelled her decision. As with many court opinions, however, her statements allow plenty of room for argument. An advocate arguing aggressively on behalf of Monica in a future case might try to limit the holding of the first case to all its arguably material facts, asserting that all of the facts above combined to upset Carmen, and that the omission of any one of these facts in a future case might lead to a different result. Most students, however, infer that only one or two facts are driving the decision and that others are not material to the outcome of the case but perhaps are expressed to underscore why the material facts are significant. For example, each of several students might advance any of the following as the holding of the case: 1. Monica violated Carmen’s rules because she arrived after 11 p.m. 2. Monica violated rules by failing to come home directly after the game, whatever the time. 3. Carmen did not mind that Monica went for pizza after the football game, but Monica violated rules by "hanging out" at the pizza parlor after eating (or after a reasonable time had elapsed to finish eating), whatever that time might be. 4. Carmen’s stated concerns about Monica’s need for sleep and time to do homework are not just general policy concerns that explain the motivation for a holding and the justification for a specific rule; they translate directly into the holding and, later, a rule. Under this interpretation, Monica violated rules by failing to come home at one of the times defined in ## 1-3 above because she had substantial unfinished homework for the weekend (and perhaps needed to catch up on sleep as well). Under this interpretation, Carmen would not have objected if Monica was caught up on her homework and her sleep. 5. In a completely different approach, some students may be skeptical about Carmen’s stated policy concerns. They don’t believe that Carmen is motivated primarily by a concern about sleep and homework; they think it’s a fiction, and they (reasonably) read between the lines, using their own experience to argue that she must be motivated primarily by a concern for Monica’s safety. This might simply provide a different justification for holdings 1-3 above, because Carmen believes that Monica incurs greater risks if she stays out past 11 p.m., or if she goes to the pizza parlor, or at least if she "hangs out" at the pizza parlor after finishing her pizza. In a variation of this reasoning, some students may believe that Carmen is upset only because Monica had not informed her of her plans to have pizza after the football game, leaving Carmen in a state of uncertainty about the risks that Monica was incurring. On this interpretation, Carmen might not have objected to Monica’s activities had Monica phoned Carmen before going to the pizza parlor or told her of such plans before leaving for the football game. Your students may come up with one or two other proposed holdings that I have not yet heard. In any event, Case #1 obviously leaves much room for interpretation of its holding, helping to illustrate why lawyers can responsibly and reasonably argue that legal precedent ought to be interpreted and applied broadly or narrowly, depending on which interpretation favors each advocate’s client. Accordingly, students should be comfortable with uncertainty regarding the "right" or "true" holding of this case. And they should be curious about the facts and outcome of further cases on the topic, because subsequent cases might help to clarify Carmen’s holding and reasoning in Case #1. To take the level of uncertainty one step further, perhaps even Carmen didn’t know for certain which of the arguably material facts was essential to her holding. Perhaps she simply knew instinctively that Monica violated the rules in those circumstances, and she left to a later case the task of sorting out precisely which fact or facts should be viewed as significant. To help guide Monica in her future outings, students could transform their interpretation of the holding of this case into a rule of more general application, such as "If Monica goes out to the varsity football game on Friday night, she must come home directly after the game." Of course, this process of rule formulation is as speculative as was the process of interpreting the holding, and is subject to the additional uncertainty associated with the possibility that Carmen’s motivations and reasoning may change over time. II. Case #2: Ambiguity Resolved through Synthesis - All of the revealed facts are the same except the time of return, which is now prior to 11 p.m., but the result is different. The uncertainty in interpreting the first case now largely disappears. By comparing the two cases, students likely will now identify proposed holding #1 as the best interpretation of the holding in Week #1, discussed above. The holding of this case likely is that Monica did not violate any rules by going out to the football game and afterwards to pizza, because she returned home by 11 p.m. It’s possible that it turns on other factors, such as advance notice provided to Carmen of Monica’s plans or Monica being caught up on her homework, but Carmen’s "opinion" doesn’t provide any facts on those topics, so they are less likely to be factors that define the holding in Week #2. After comparing the holdings in Week #1 and Week #2, students may more confidently advance a rule that may have general application beyond those two cases. The most likely rule is a bright-line curfew of 11 p.m., although uncertainty remains, such as whether it applies only to weekend nights and is perhaps superseded by an earlier curfew on school nights – or is replaced by a later curfew during summer vacation. Accordingly, students can reasonably state their rule after Week # 2 with various degrees of qualification, if they wish. Examples: Monica must return from evening activities by 11 p.m. During the school year, Monica must return from Friday evening activities by 11 p.m. III. Case #3: Two-part test. We learn several things from this case, which might emerge in class discussion as multiple holdings. First, we learn that the 11 p.m. curfew seems to apply to school nights, because Carmen did not disapprove of Monica’s staying out until nearly that time on a Tuesday night. Second, we learn that Carmen did not disapprove of Monica going out on two evenings during one week, so long as she returned by 11 p.m. on Tuesday and Friday nights. But Monica’s request to go out on Saturday night prompted an objection and statement of the familiar parental concern about reserving adequate time for homework and sleep. Because Monica requested to go to an early evening showing, she likely could be home well before 11 p.m., so this holding does not seem to result from application of the curfew rule. It’s possible that Carmen objects to the movie, the theater, or Monica’s movie companion, but nothing in her "opinion" suggests these factors as the basis for her holding. Perhaps Monica’s sleep deprivation and unfinished homework–both mentioned by Carmen--are critical facts in this case; however, I try to steer students toward interpreting these factors as general policy justifications for limiting Monica’s outings, and not as a basis for defining the precise limitations. Although this holding is again open to differing interpretations, a student might plausibly conclude that Carmen disallowed the Saturday night outing because Monica had already gone out twice in one week. One might argue that Carmen was primarily offended by Monica going out on two consecutive nights, but her statement points to the number of outings in one week: "You’ve been out twice already this week, and that’s enough for one week." Students can now attempt to construct a rule that they have derived from their synthesis of all three cases, a rule of general application that emerges only partly in each of the three cases viewed in isolation. Example: Monica can participate in evening social outings no more than twice in one week, and she must return from each outing by 11 p.m. Under this interpretation, Case #3 has added a new facet to the rule, resulting in a two-part test. Alternatively, students might prefer to state these limitations as two separate rules. If we synthesize all the cases, we now seem to have a frequency limitation as well as a curfew on individual nights. Students are invited to state the two-part rule, which they pieced together from three cases. IV. Case #4: Balancing Act. This case will prompt some students to express their frustration with a seemingly chaotic or arbitrary legal landscape, or to voice their suspicions about judicial rulings being driven by judge’s political leanings or personal values. If so, they may be tempted to interpret this case as holding that Monica is allowed to go out for the third night in a week simply because Carmen wants to go to this particular event and would be expected to bring Monica with her. Although a few moments of such discussion can be healthy and illuminating, I soon encourage students to formulate a holding that is dependent on more durable, principled reasoning, rather than arbitrary or whimsical factors. In response, they typically conclude that Carmen permitted (indeed required) Monica to go out to the party on Saturday night, even though Monica had already gone out twice before in that week, because the party is an important family event that comes only once in a relative’s lifetime (50th birthday). Based on this experience, students may be able to induce that Carmen is willing to recognize an exception to the prohibition against more than two social outings in one week, if the third outing is an important family event. Indeed, some students might speculate that Carmen is developing and applying a balancing test that weighs familial interests in an event against Monica’s need for time for sleep and homework. Remember, some students will adopt the theory that Carmen is really motivated by a concern for Monica’s safety. They will tend to formulate a holding and rule on the basis of Carmen being present to monitor and supervise Monica’s activities. Whatever rule students derive from Case #4, it can be added to the rules, or facets of a rule, that students have derived from the first three cases. In doing so, they are engaging in a process of case synthesis, resulting in comprehensive view of the law that is not evident in any one of the cases viewed in isolation. They are now ready to outline the material, as invited by Exercise 8-2(3), near the end of this chapter. By deriving rules from their syntheses of the cases, the students have also used induction to formulate general rules that can form the major premise of a deductive analysis, which they can apply in an essay examination, as invited by Exercise 9-1(2) in the next chapter. Exercise 8-2(3) Once the students have synthesized the four cases in Exercise 8-1, they have taken some critical steps toward producing an analytically useful outline of the topic. Still, students must complete their transition from a focus on individual cases to a focus on the rules derived from the students’ syntheses of those cases. Accordingly, they should organize their outlines around rules derived from the cases, with the cases relegated to brief factual illustrations of the highlighted rules. The following examples are printed in large print to facilitate reproduction on transparencies for overhead projection. [These sample outlines treat Monica’s general need for adequate time for sleep and homework as only policy justifications for creating specific rules, and not as factors that are weighed in each case as part of the rule; however, students might interpret the cases differently, to require analysis of Monica’s progress on sleep and homework in each case.]
Sample #1 I. Carmen restricts Monica’s outings to preserve time for rest and homework, and perhaps to protect Monica from risk of harm. A. Monica must return from evening social outings by 11 p.m. 1. Example: In week #1, Monica "hung out" too long on a single outing that week by returning home "past 11," at 11:15 p.m. 2. Example: In week #2, Carmen approved when Monica returned by 11 p.m. on the same kind of outing as in week #1. B. Monica may participate in evening social activities no more than twice in one week, unless a third outing is an important or obligatory event, such as a family celebration, whose value outweighs the values of preserving time for Monica’s sleep and homework. 1. Example: In week #3, Carmen permitted Monica to go out with friends on two nights, returning by 11 p.m. each time, but Carmen did not permit Monica to go to the movies with friends on a third night that week. 2. Example: In week #4, Carmen expected Monica to attend a special family outing to a relative’s 50th birthday party, even though Monica had already been out twice that week.
Sample#2 I. Carmen restricts Monica’s outings to preserve time for rest and homework, and perhaps to protect Monica from risk of harm. A. Monica generally may not attend evening social outings more than twice in one week and must return from outings by 11 p.m. 1. Example: In week #1, Monica "hung out" too long on a single outing by returning home "past 11," at 11:15 p.m. 2. Example: In week #2, Carmen approved when Monica returned by 11 p.m. on the same kind of outing as in week #1. 3. Example: In week #3, Carmen permitted Monica to go out with friends on two nights, returning by 11 each time, but did not permit Monica to go to the movies with friends on a third night that week. B. Exception: Monica’s mother permits Monica to go out three nights in one week, if at least one night is a family outing. 1. Example: In week #4, Carmen expected Monica to attend a family outing to a relative’s birthday party on Saturday night, even though Monica had already been out twice that week. 2. Query: Would Carmen permit Monica to stay out past 11 p.m. on a family outing? Probably yes, if the significance of the event outweighed the costs of delayed homework or diminished sleep, or if that meant that Monica’s activities would be supervised by family members.
Exercise 9-1(2) - Sample Essay Examination, applying rules derived from cases analyzed in Exercise 8-1 and outlined in Exercise 8-2(3).QUESTION On Wednesday night, Monica, who is a junior in high school, attended an evening volleyball competition at her school. She returned home by 10:30 p.m. On Friday night, Monica went to the school dance with a date, Pat. When Monica and Pat returned from the dance at 10:55 p.m., they parked in the driveway at Monica’s house, within view of Monica’s mother, Carmen, who was sitting in the living room. While parked in the driveway, they talked, laughed, and held hands for twenty minutes. After Pat kissed Monica goodbye and drove away, Monica entered her house and greeted Carmen at 11:15 p.m. On Saturday afternoon, Monica asked Carmen whether Monica could go with friends to the high school basketball game, to watch Monica’s brother play in the first of more than a dozen home games in the basketball season. Carmen plans to attend some home games during the season, although not this first one. Fully discuss whether Monica’s action on Friday and request on Saturday are consistent with Carmen’s rules regarding Monica’s social activities. For every issue that you identify, summarize the rule or sub-rule that helps to resolve that issue, apply the rule to the relevant facts, and reach a conclusion. Whenever possible, discuss both sides of the question.
SAMPLE ANSWER To promote Monica’s health and academic progress, Carmen requires Monica to return from social outings by 11 p.m., and Carmen normally limits Monica’s outings to two in each week. Monica’s Wednesday night outing raises an issue about the 11 p.m. curfew, and Monica’s request on Saturday raises an issue about the maximum number of outings allowed in a week. 1. 11 p.m. Curfew Monica must return from social outings by 11 p.m. It’s not clear how that rule applies to this case, because Monica returned to the driveway of her home by 10:55, within the curfew, but did not enter her home until 11:15 p.m., 15 minutes beyond the curfew. On these facts, Monica may have satisfied Carmen’s rule, because Monica has technically returned home before 11 p.m. by returning to the family property, albeit outside the house. It’s likely that one of Carmen’s unexpressed concerns is simply the safe return of Monica at night. Therefore, Carmen is likely to be content if Monica has safely returned by 11 p.m. and is appropriately socializing within Carmen’s view and her potential control. On the other hand, if we take seriously Carmen’s expressed policy of promoting health and academic progress, Monica’s presence in the driveway may not be sufficient to satisfy Carmen’s rule. Because Monica and Pat presumably were not making progress on a homework assignment while parked in the driveway, Monica cannot perform homework or prepare to sleep until Monica enters the house. Thus, this case arguably is indistinguishable from Case #1, in which Monica was admonished for returning home at 11:15 p.m. after football and pizza. I conclude that Carmen will honor Carmen’s expressed policy concerns and will apply the curfew rule strictly, thus finding that Monica violated the rule by entering the house at 11:15 p.m. 2. Maximum Number of Outings per Week Carmen prohibits Monica to go on social outings more than two evenings each week, unless a third event is one of such importance, such as a significant family celebration, that its value outweighs its effect on time for sleep and the prompt performance of homework. In this case, Monica wishes to watch Monica’s brother play in a basketball game, an event that arguably is a significant family event, but not one that clearly creates grounds for an exception to the normal limit of two outings per week. An exception might be appropriate, because Monica is obviously closely related to Monica’s brother, the first home game of the season likely is an important event for the brother and thus for Monica’s family, and Monica apparently would be the only family representative among the spectators. Nonetheless, because Carmen doesn’t plan to attend the first home game, she apparently doesn’t attach special importance to the first one (and she will not be present to supervise Monica, to the extent that Carmen is concerned about Monica’s safety). Moreover, unlike an uncle’s 50th birthday party, which comes only once in that relative’s lifetime, Monica’s brother will play in many home games during the season, with some–such as homecoming or possible play-off games–arguably more significant than the first game. I conclude that Carmen will not see special family significance in the basketball game and thus will not permit Monica to attend. In sum, I conclude that Monica’s action on Friday and request on Saturday were both inconsistent with Carmen’s rules. Carmen probably would admonish Monica for entering the home after 11 p.m. on Friday and probably would not permit Monica to go to the game on Saturday night.
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