Day-by-Day Class Plans: Contract Drafting Spring 2025

Be sure you're enrolled in this course in Canvas; see the top of this page for the course numbers.

See this Google Docs page for your initial seating assignments. Please:

• find your initial group; and
• sit where indicated in the seating diagram.

The initial group assignments are alphabetical by first name. The assignments will be shuffled three times during the semester.

In your small groups you'll be doing a lot of in-class handwriting of contract term-sheet outlines, along with a certain amount of hand-copying or sketching of diagrams in the course materials such as the "Hill of Proof" and the "Battle of the Forms Drop-Out Rule."

[DCT TO DO: ADD LINKS TO DIAGRAMS]

Reason 1: Last semester, I noticed — and students commented — that their small-group "discussions" increasingly consisted of everyone typing notes into the group "whiteboards," instead of talking to each other. The students weren't keen on not talking to each other, and pedagogically it's not great. So this semester, I'll experiment with locking the group whiteboards except for the specific times when we do in-class drafting exercises.

Reason 2: Some research indicates that writing notes and sketching diagrams by hand — as opposed to typing — can improve comprehension and retention; this is thought to be because handwriting requires more mental processing by the notetaker than passively transcribing what's being said.

Taking notes on laptops rather than in longhand is increasingly common. … The present research suggests that even when laptops are used solely to take notes, they may still be impairing learning because their use results in shallower processing.

In three studies, we found that students who took notes on laptops performed worse on conceptual questions than students who took notes longhand.

We show that whereas taking more notes can be beneficial, laptop note takers' tendency to transcribe lectures verbatim rather than processing information and reframing it in their own words is detrimental to learning.¹

A later study concluded:

Using a cross-sectional survey, the longhand note taking cohort was more likely to agree with there being fewer distractions and temptations, and having high-quality notes that other students ask to look at, while being more likely to disagree that their attention span limits their understanding.

They also reported recommending that other students attempt more frequent use of longhand note taking, even while recognizing that this modality might not be suitable for all students in all types of courses.²

Some other researchers, though, argue that handwriting's advantages over laptop typing are not statistically significant, and so students should use whatever approach works for them.³

Please tell us a little bit about yourself:

• Name (if you prefer a nickname on your name tent, please mark it up)
• Class year (3L, 2L, LLM)
• Undergrad school and major
• Work experience?
• Contract-related experience?
• Something boring about yourself?

Here's how I usually do Socratic-method questioning:

• I'll pose a question — usually pre-positioned on this Web page, see this example from today's class plan — and ask you to discuss the question for a minute or two in your small groups.
• Then, for that question, I'll spin the wheel to call on people. Or, I might announce, "open mike," meaning anyone can volunteer to answer.
• Generally, once I've called on you three times in a class session — it can happen, that's the nature of (pseudo)-randomness — I'll remove your name from the wheel until everyone else has been called on.

That way:

• Neither you nor I know who I'll be calling on to answer a question.
• You have to be ready to answer each question — but you get to discuss the question with your group before I call on anyone.
• You can't "check out" after I've called on you, because I might call on you again ….

This is a form of what pedagogy researchers call "active learning." Research has shown that this improves learning outcomes, even though some students regard it as a mixed blessing (like going to the gym):

Comparing passive lectures with active learning using a randomized experimental approach and identical course materials, we find that students in the active classroom learn more, but they feel like they learn less. We show that this negative correlation is caused in part by the increased cognitive effort required during active learning.

[DCT translation: You have to work harder in class, but it's worth it.]

(Emphasis added.)

At the end of the day, students in our course seem to come around concerning this approach. This is pretty clearly shown by course feedback, from Law Center end-of-course reviews except as otherwise noted:

•  "One thing that worked really well for me was being in groups. Sometimes I wouldn't really 'get' something from the readings, and talking with my group is what helped the material click. Also knowing that the other people in your group still need you to stay engaged helped with people not checking out after their name was called on."

•  "We liked [written questions for small-group discussion in class]. Makes it less stressful than cold calling and its [sic; it's] like the real world to ask for help. Get to benefit from smart teammates! :)" (From in-class "group whiteboard" comments on the last day of the semester, with me out of the room.)

•  "Throughout undergraduate and graduate school I have never enjoyed group work during lecture but in this course it really was beneficial. Talking with my peers during each course made me feel confident and less worried about whether someone else was 'smarter than me.' The group dynamic Professor Toedt facilitated puts all students on the same level and not only forces us to teach each other and learn together but also helped me create better

•  "Definitely facilitated group discussion." "Allowed us to work together and share ideas."

•  "The discussion-based class format combined with spaced repitition [sic] and the homework quizzes helped make the material more concrete."

Please tell us a little bit about yourself:

• Name (if you prefer a nickname on your name tent, please mark it up)
• Class year (3L, 2L, LLM)
• Undergrad school and major
• Work experience?
• Contract-related experience?
• Something boring about yourself?

I'll talk through some key points of the syllabus.

Please tell us a little bit about yourself:

• Name (if you prefer a nickname on your name tent, please mark it up)
• Class year (3L, 2L, LLM)
• Undergrad school and major
• Work experience?
• Contract-related experience?
• Something boring about yourself?

From Twitter: "Elon Musk predicts he will rocket people to Mars in less than 10 years"

QUESTION 1: Does that mean people will depart for Mars in less than ten years, or that it will take them less than ten years to get there?

QUESTION 2: How could this be rewritten to clarify?

Please tell us a little bit about yourself:

• Name (if you prefer a nickname on your name tent, please mark it up)
• Class year (3L, 2L, LLM)
• Undergrad school and major
• Work experience?
• Contract-related experience?
• Something boring about yourself?

I'll talk through chapter 

BE SURE TO READ these materials early in the semester.

[From a PowerPoint slide deck]

See this tweet thread

I'll bring them to class; that way, you won't forget them ….

From a Facebook post shared by one of my former law partners: "I made it through the day without needing an AR-15 again!"

QUESTION: Does "again" relate:

• to "made it through the day"? or
• to "needing an AR-15"?

QUESTION: How could we fix this to specify which of these two we're talking about — maybe by moving just one word to different spots?

Today (Jan. 15, 2025) is her 100th birthday — she has all her marbles and can still play!

:

In the group whiteboards (both classes):       • Group 1       • Group 2       • Group 3       • Group 4       • Group 5       • Group 6, DCT to show a useful way of rewriting the following, from this real-estate lease:

• to break up the "spaghetti clause"
• to be more reader-friendly, as though you were talking to a lay jury; and
• to correct drafting-type "issues" such as:
  • passive voice;
  • D.R.Y. issues;
  • run-on sentences,

following the Style Rules.

6.5 Tenant’s Audit Rights. Landlord shall keep reasonably detailed records of all Operating Expenses and Real Estate Taxes for a period of at least two (2) years. Not more frequently than once in every 12-month period and after at least twenty (20) days’ prior written notice to Landlord, Tenant together with any representative of Tenant shall be permitted to audit the records of the Operating Expenses and Real Estate Taxes. If Tenant exercises its audit rights as provided above, Tenant shall conduct any inspection at a reasonable time and in a manner so as not to unduly disrupt the conduct of Landlord’s business. Any such inspection by Tenant shall be for the sole purpose of verifying the Operating Expenses and/or Real Estate Taxes. Tenant shall hold any information obtained during any such inspection in confidence, except that Tenant shall be permitted to disclose such information to its attorneys and advisors, provided Tenant informs such parties of the confidential nature of such information and uses good faith and diligent efforts to cause such parties to maintain such information as confidential. Any shortfall or excess revealed and verified by Tenant’s audit shall be paid to the applicable party within thirty (30) days after that party is notified of the shortfall or excess to the extent such overage or shortfall has not previously been adjusted pursuant to this Lease. If Tenant’s inspection of the records for any given year or partial year reveals that Tenant was overcharged for Operating Expenses or Real Estate Taxes by an amount of greater than six percent (6%), Tenant paid such overage and such overage was not otherwise adjusted pursuant to the terms of this Lease, Landlord shall reimburse Tenant for its reasonable, third party costs of the audit, up to an amount not to exceed $5,000.

In your small groups — Group 1 talking to Group 2, Group 3 talking to Group 4, Group 5 talking to Group 6 — "negotiate" the Uncle-Ed short contract for sale and see if you can reach some kind of agreement on basics.

(Just what the agreement ends up being is not of concern: This exercise aims to start identifying possible risks and coming up with cost-effective ways to avoid them, or at least eliminate mitigate [or: reduce] their potential impact.)

Reminder:

• Odd-numbered groups: You represent Uncle Ed, the seller.
• Even-numbered groups: For this exercise, you represent Dale, the buyer (even though the facts say otherwise).

I'll show a quick drafting of signature blocks using the group whiteboards (both classes):       • Group 1       • Group 2       • Group 3       • Group 4       • Group 5       • Group 6.

See this blog entry.

See Setting up the contract's "framing"

See CDL discussion.

QUESTION: Most contract preambles identify the parties as, e.g., "ABC Corporation, a Texas corporation."

• How would we identify MathWhiz?
• How would we identify Gigunda Energy?

(CAUTION: Do we know enough to say?)

Perdue Farms (Ind. 2024): A truck driver, making a chemical delivery to a Perdue Farms poultry-processing plant, told the plant's gate guards (who worked for a security company) that he was delivering bleach. But the driver was seriously mistaken: The bill of lading said, correctly, that the delivery was of aluminum chloride, a corrosive hazardous. The gate guards told the driver to put the "bleach" in the bleach tank; the resulting chemical reaction caused significant damage to the facility.

Perdue sued the trucking company; the security company; and the driver and three gate guards personally. Perdue apparently did so to try to escape a forum-selection clause in the security-company's contract with Perdue, which designated the federal district court in Maryland — where Perdue was incorporated and had its headquarters — as the exclusive forum for any disputes relating to that contract.

The Indiana supreme court would have none of it:

[W]e reject [Perdue's] strategic pleading to avoid the forum-selection clause by suing the [security-contractor] defendant's Indiana-based employees individually.

Second, we decline to apply the forum-selection clause to the plaintiff's claims against the individual employees. These employees (unlike their employer) are not parties to the forum-selection clause, and they are not in privity with their employer.

Perdue Farms, Inc. v. L&B Transport, LLC, 239 N E.3d 842, 844-45 (Ind. 2024) (extra paragraphing added).

Here's a tweet from the @TexasDemocrats Twitter account: "PRESS RELEASE: Chairman @HinojosaTX Releases Statement on Federal Judge in Texas Siding with AG Paxton, Against Texas Women"

QUESTIONS:

1.  Suppose you didn't know Texas politics, and you also didn't know that this tweet came from the Texas Democratic Party — might you be confused about who was siding with whom?

2.  How could this be clarified?

Let's try again: "PRESS RELEASE: Chairman @HinojosaTX Releases Statement on about Texas Federal Judge in Texas Judge's Siding with AG Paxton, Against Texas Women"

See Setting up the contract's "framing"

See Drafting tips

From this article: "Anti-vaccination sentiment was once more evenly distributed between parties and ideologies …." (Emphasis added.)

QUESTION: What are TWO ways this could be clarified, to have two different respective meanings?

From CNN (since changed): "New US dietary guidelines include babies and toddlers for first time"

A friend posted a screen grab on Facebook with the comment, "Thanks for the offer, but I’m vegan."

From a NY Times obituary of a burlesque dancer, who died at age 106: "Outside the tribal world of burlesque, Ms. Rowland was perhaps not as famous — or as well paid — as other headliners like Tempest Storm, another redheaded queen, who dallied with John F. Kennedy and Elvis Presley, whose breasts were said to be insured by Lloyd's of London …."

Wow. I'd read that Elvis could sometimes be … unusual, but I never knew that about him …. (Let alone JFK!)

QUESTION: How could we fix this?