The Language of Law School This page intentionally left blank

Lectures on Legal Texts, Doctrines, and Authority
We begin with a class in which a lecture format predominated (Class #7). Recall
that this professor’s turns constituted 95% of the total class time, and that 91% of
his time speaking was spent in monologue, or lecture.
Transcript 5.3 [7/3/11–12]
Prof.:
[First portion of 10.45 turn omitted]
 For thirty-seven years with Mrs.
Feinberg () 
[a case discussed in class previously]
, there is no case, that’s a
gratuitous promise. There is no way to say there’s consideration there
and make a plausible argument. This one, there’s ways to argue it both
ways. It seems to- that is part of the process of identification is to
recognize what’s () and also to recognize what’s a close issue. You get a
close issue like this and say, “Look, here is competing considerations, I
would favor it for the following reasons,” and then lay it out. Demon-
strate to me that you understand that this is a much closer call, a close
question. And that there are an awful lot of areas involved that are close
questions. But there are also a lot of changes that are very definitive. So
you have to learn to discriminate. Well, okay, what- I think we were still
back- we have played with this characterization. I think we have to
advance the understanding a little bit further about how we are going to
go about, on a case-by-case basis, to distinguish bargained-for exchange
from a gratuitous promise subject to a condition. You cannot tell
exclusively by the format of the language. This is a tough case, this is a
tough determination. Because what’s happening, it’s stating the

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Epistemology and Teaching Styles
87
condition as he’s stating it here. He’s asking for her to do something
first. “If you do this, I’ll do this.” That’s exchange, that’s starting to look
like exchange, isn’t it? Particularly when he is saying to do something
that will come back to benefit him, something that will come back to
him. So, in an exchange, you are going to always see that, you are always
going to have that type of () be implicit. You do this for me, I’ll do this
for you. But that language alone does not make it in and of itself a
bargained-for exchange, because it could be a situation: “If you do this
for me, I will give you this gift.” In which case it is a condition to
gratuitous transfer. So, it is not the language itself; what we are faced
with is a very difficult characterization problem. What it is really
coming down to is intent (). What lies behind all of this? Gratuitous
intent or bargain intent (). In other words, what must be- in order to
constitute consideration, it has to be sought in a bargaining context. It
must be returned as part of a bargain. That kind of circular statement,
that’s what’s involved. Now sometimes the context is very obvious. Let
me give you a real simple illustration. I tell you, “If you break your leg
in the football game this weekend, I’ll pay you fifty bucks. If you break
your leg in a football game this weekend, I will pay you fifty dollars.”
Now is that a condition of gratuitous promise, or is that a bargained-for
exchange? Um-huh.
Student:
It’s a bargained-for exchange.
Prof.:
Yeah, I think this is very obvious. 
[Intonation markers indicate a shift to
a new hypothetical here]
 I (), at least sometimes. I’m not really bargain-
ing for you to go out there and bust your leg on Saturday. Instead, I am
saying, “Hey look, if you play hard and you get hurt, I’ll (see) you’re
paid something.” But I said, “I’m not going to give you fifty bucks if you
don’t come out with a broken leg either.” I don’t think there is much
question there that that is a (gratuitous) situation subject to condition.
But when I start posing the condition that you have to give something
back with some benefit () me, particularly if it is a direct economic
benefit, now we start looking at things that are much- and of course I ()
with the characterization. Now, what we have here is essentially a
question of fact. A question of fact. And it is somewhat difficult, but I
will introduce the subject for the first time, and within contract
formation analysis we can look at it much more extensively.