Doing Contract Theory in First Year Law School: The Iceberg Method

Abstract

There are various ways of Introducing first year law students to legal theory. One is to offer a discrete legal theory course. This is a "bottom-up" approach in the sense that typically discussion of a given theory in the abstract precedes application of the theory to particular legal problems. An alternative is to teach theory as part and parcel of one or more of the standard first year courses. This is a "top-down " approach in the sense that identification of the legal problem precedes the introduction of potential theoretical solutions. The top-down approach can be visualized as an iceberg, with particular legal rules at the peak and the policy preferences which shape the rules submerged below. In this paper, we explore a variation of the top-down or iceberg approach in which the aim is to introduce students to a range of theoretical perspectives by comparing and contrasting the application of competing legal theories to a particular legal problem. For the purposes of illustration, we have chosen the spousal guarantee cases in Contract Law as our reference point and critical legal studies, law and economics and feminist theory as our perspectives. There are numerous other cases, not just in Contracts, but in Torts, Property and Criminal Law as well, that might be amenable to similar treatment. Likewise, needless to say, there are other theories, apart from the ones we use here, that teachers might prefer; the teaching method we propose does not depend on the particular perspectives we happen to have chosen

Keywords: legal theory, education, first year, Contract Law, iceberg method