Works in Progress Group 11: Pedagogy and the Profession

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Group 11: Pedagogy and the Profession 

Rebalancing Power in Pro Bono: The Third-Party Effect  

Albert Pak, University of Michigan  

The article's aim is to explore the imbalance in power between pro bono attorneys and clients, especially in the context of transactional pro bono services for small businesses and nonprofits.  This bilateral relationship relies heavily on the pro bono attorney's generosity, attitude, and availability to operate effectively. Such an imbalance in power inevitably leads to the de-prioritization of pro bono work relative to billable work and potentially suboptimal results for pro bono clients. I'd like to explore whether pro bono can transcend the bilateral relationship between pro bono attorney and client by introducing third parties, such as private foundations or large nonprofits, who can use their "market power" to improve results for pro bono clients. An example of this phenomenon may be a large private foundation that funds nonprofits for "technical assistance," earmarks a certain amount for "legal services," and enlists a group of law firms that agree to provide services to the nonprofits at a reduced rate. The introduction of this third party in this way has the potential of bettering outcomes because the attorneys are now incentivized by their desire to build stronger ties with the private foundation and, of course, by the compensation they receive. The paper will explore different dimensions of this “third party effect” on pro bono.  

The Formal Foundations of Contract Drafting 

Peter Robau, U Penn  

This article is about how contract drafting is normally taught in U.S. law schools, an approach that begins with and is organized by the components, or so-called “building blocks,” of a contract. The building blocks are the set of legal concepts (e.g., covenants, warranties, representations, etc.) from which a drafter can assemble any contract, regardless of subject matter or purpose; they are the menu of things – legal things – a drafter can do in a contract.  

Drafting experts, with notable consistency, teach the building blocks in formal terms – that is, with reference to their structure, or “form.” In the same way a scientist might describe a water molecule as comprised of hydrogen and oxygen atoms arranged in specific configurations, drafting experts similarly explain contract's building blocks by reference to their “atomic” units. For example, a covenant (a contractual promise to do something) is comprised of a right and correlative duty. Other building blocks are at times described as having this two-sidedness, albeit with different correlated legal advantages and disadvantages than right and duty – e.g., liability, power, permission and so forth. 

This article examines the foundations for these structural claims about the building blocks. Based on this analysis, I develop a model of each of the forms of contract’s building blocks, a model that clarifies the similarities and distinctions among them. In doing so, I clarify some persistent questions in contract drafting (e.g., the difference between representations and warranties, assignment and delegation, and contractual permission and obligation). 

Discussant: Margaret Drew, U Mass. Dartmouth