Kellye Y. Testy, Whose Deal Is It? Teaching about Structural Inequality by Teaching Contracts Transactionally, 34 U. Tol. L. Rev. 699 (2003), https://digitalcommons.law.uw.edu/faculty-articles/330
University of Toledo Law Review
Although Scott Burnham and others have urged the use of more contracts to teach Contracts for some time,'9 it is safe to say that the majority of Contracts courses in the United States do not put actual contracts front and center. While particular phrases or provisions surely are referenced in the steady diet of appellate decisions that comprise the first-year course, those decisions very rarely include the actual contract at issue for study. Moreover, in the increased compression of the first year course," few professors believe they can justify the time for transactional exercises or simulations in the rush to cover the basic doctrines. A transactional approach to teaching Contracts is thus a simple but important idea that is still too much a rarity in the academy.
And so in praise of simple but important ideas, I want to make an additional one. In addition to all of the benefits that others in this issue have identified about using contracts to teach Contracts, teaching contracts transactionally also provides the opportunity to raise important issues of social location. That is, teaching Contracts transactionally highlights the importance of the context of the transaction, and thus opens the door to considerations of structural inequalities (including race, gender, class, sexuality (and their intersections)) implicated in that transaction. Rather than teaching about deals in the abstract, teaching Contracts transactionally enables more trained attention upon the issue of whose deal it is, and why that aspect of the context of the transaction must be addressed before much else can be profitably discussed.
Contracts, after all, are bargains between particular persons or entities, not freefloating bargains. Those identities matter in terms of the bargaining power of the parties and the kind of contract that they need to embody their deal. Accordingly, focus upon contractual transactions presents a prime opportunity to surface issues that influence bargaining power and client needs. What kinds of issues do that? Any issue that determines who has power in this society and who does not: race, gender, class, sexual orientation, and their many complex intersections are foremost among them. Thus, in the process of learning much about contract drafting and negotiation, students also can learn much about these important social inequalities as well if simulations are structured to present these issues. It is not hard to do; remember, this paper is in praise of simple ideas. It is also important to do so, and below I discuss both the "why" and the "how" of focusing upon "whose deal is it?"