Wagner's Notions on the End of Cheating
This morning I stumbled upon The End of Cheating As We Know It. It's a post on the Substack of Michael G. Wagner, professor of digital media and head of the Digital Media Department at the Antoinette Westphal College of Media Arts & Design at Drexel University. I thought Wagner's post was of interest in its own right, but I used it as an excuse to write this blog post because the problem Wagner is looking to solve for cheating at schools doesn't apply to teaching contract drafting. Forgive the bait-and-switch!
In this LinkedIn post, Wagner gets to the gist of his Substack post:
Here's the uncomfortable truth: If cheating in the traditional sense has become impossible to detect, why are we still pouring resources into trying? Maybe it's time to stop policing what we can't control and start reimagining what academic integrity means in 2025.
In the peroration that brings his Substack post to a close, Wagner leads with this:
The end of cheating as we know it marks not a loss but a liberation. We’re freed from an exhausting regime of technological surveillance that was always destined to fail. We’re called back to education’s most vital mission: fostering deep, critical, and creative human thought.
In particular, Wagner sees a return to that old standby of legal education, the Socratic method, as "a vision uniquely suited for our moment."
Wagner's Solution Doesn't Apply to Contract Drafting
Does this have anything to do with teaching contract drafting? It doesn't: The challenge that faces teaching contract drafting, whether in a school setting or on the job, has nothing to do with the challenge facing traditional assessment methods in many other kinds of teaching.
As Wagner frames it, "The traditional model assumes a solitary human author responsible for every word on the page. But this assumption no longer holds in an era where AI serves as a powerful thought partner for brainstorming, research, drafting, and revision." Instead, "The key lies in evaluating situated cognition: knowledge deeply embedded in personal experience, local context, and embodied understanding that a statistical model cannot replicate."
So instead of treating a text as a proxy for a student's original thought, have the text deconstructed for us with the help of the author, to isolate the elements of original thought scattered throughout the text and the process.
Well, that has no bearing on contract drafting, because contract drafting doesn't involve analyzing an unruly mass of material to draw conclusions. That's the stuff of history, literature, and the rest of the humanities, as well as scientific research.
By contrast, contract drafting involves how best to get from point A to point B. Because countless people have already trod the path from A to B, we can capture, and subsequently recall, variations in deal terms deployed in getting from A to B. That doesn't constitute cheating. (For more on why contract drafting doesn't constitute cheating—or more specifically, plagiarism—see this 2010 post.)
We Need a Better Way to Capture Deal Options for Teaching Contract Drafting
So for contract drafting, capturing different ways of getting from A to B wouldn't be cheating, it would be essential. But we need a better way to capture those deal options, because contract drafting has long relied on copy-and-pasting, on faith, from templates and precedent contracts of questionable quality and relevance. The result has been systemic dysfunction.
Here’s how copy-and-pasting happens. Any new transaction likely resembles previous transactions, so an obvious way to create a contract for a new transaction is to copy one or more contracts used in previous transactions, adjusting them to reflect the new transaction. Ideally, you’d check the contract you’re copying to make sure it’s clear and it’s relevant, but generally that’s not what happens, because that takes time and requires specialized knowledge.
Imagine you’re a junior lawyer. You’re given a contract to copy-and-paste from. You have only a flimsy grasp of that kind of deal, because you’ve received very little training. And you have no idea what half of the stuff in the contract means, because, again, you’ve received very little training. But you figure that whoever prepared the contract must have been competent, and whoever told you to use it must be competent too, so you assume that what you’re copying is clear and relevant. Go through that process often enough and what once looked strange becomes the norm. But it’s still dysfunctional.
The dysfunction isn’t subtle or mysterious. Instead, it’s glaring—generally it’s easy to distinguish between an effective way to express something in a contract and the dysfunctional traditional way.
The dysfunction is made worse by the legalistic mindset. I use “legalistic” to mean “like a lawyer, but bad!” The legalistic mindset doesn’t like the notion that mainstream contract drafting doesn't make sense, so we try to explain away the dysfunction. If those explanations are repeated often enough, they become the conventional wisdom. The explanations don’t make sense, but they provide protective cover—invoking conventional wisdom is usually enough to allow everyone to accept the contract language in question. In the process, they might well engage in negotiation theater, where you negotiate over distinctions that are in fact meaningless.
An example of addled conventional wisdom is the notion of a hierarchy of efforts provisions; see my 2019 law review article. In its 2020 opinion in AB Stable VIII LLC, the Delaware Court of Chancery says that my article is "The most thorough analytical treatment of efforts clauses."
So copy-and-pasting results in contracts that are a long way from clear, concise, and relevant. As a result, mainstream contract drafting is a systemically dysfunctional. I've spent 25+ years chronicling the dysfunction.
Here's a Better Way to Capture Efficiencies for Teaching Contract Drafting
If I were teaching a course on contract drafting, an important component would be written assignments. Students are presented with a scenario; they draft a contract to address that scenario. Such assignments resemble what contract drafting in the working world consists of.
So how do we access better the efficiencies offered by capturing the copious evidence for how people get from point A to point B in a given kind of deal?
Well, AI isn't the way. The simplest reason is that AI trained on dysfunction will necessarily replicate that dysfunction. For more, see this blog post. And cookie-cutter templates for standard-form initiatives won't work either.
A better option is highly customizable automated contract templates. Although it's early days, the only such templates available to all is those prepared by us, Adams Contracts. Any teaching I'm involved in would use Adams Contracts templates for written assignments. The only alternative would be to have students rummage in the copy-and-paste dumpster for raw material for their drafting. That's would send them on a one-way trip to dysfunction.
By contrast, Adams Contracts templates would expose students to a wide range of deal-point options available for a given kind of deal, along with relevant guidance. After students have made their choices and clicked "Assemble", the template would in an instant deliver them a contract that expresses their deal choices with language that reflects the input of specialists and complies with MSCD guidelines. That would be their introduction to what high-quality contracts look like.
As one kind of assignment, you could require students to use a template to create a draft that expresses what's contained in a term sheet, but also require that they draft a missing provision without the help of the template, while complying with MSCD guidelines.
