October 25, 2013
Lee. E Teitelbaum Professor of Law
Co-Director, Center for Innovation in Legal Education
S.J. Quinney College of Law
University of Utah
There are many criticisms that could be, and have been, made about legal education. In this essay, I am going to concentrate on one criticism of the traditional doctrinal class and discuss ways to address it. The criticism I want to focus on is the fundamental disconnect between what we teach and what we test.
In doctrinal classes, particularly in the first year, the day to day substance of class revolves around the analysis of judicial opinions. Students are asked to identify some or all of the following: the relevant facts and the procedural posture of the case, the issue or issues, the rules, the arguments made by each party, the judge’s reasoning, the holding, and the outcome. In other words, students spend the bulk of their time learning how to read cases.
Reading cases is an important skill. In fact, it could be argued that this is the fundamental skill of legal practice. And it is a difficult thing to do. The language of law is often arcane and full of strange terminology, particularly if it is an older case. Some opinions are not well written. Judges on occasion fail to articulate clearly their reasoning. It takes students some time to realize that all opinions share a basic formula and to be able to identify the elements of an opinion.
Moreover, at the same time they are learning how to read cases, students are learning a new domain of knowledge: contracts, torts, civil procedure, etc. To fully understand the cases, the students have to achieve some familiarity with the substance of the doctrinal domain for each class.
In light of all this, after a semester of reading cases in a particular doctrinal area, what should the reasonable student expect to encounter on the final exam? From a pedagogical perspective, having spent the semester learning how to read a case like an expert in that particular area of law, it would be reasonable to expect that the exam would consist of a new case, one the student had never read before, dealing with an unfamiliar area within the doctrinal domain of the class, which the student would then be asked to analyze. But of course this is not what the student encounters on the final exam.
Having spent the semester practicing one skill, how to read and analyze a case, on the final exam the student is asked to demonstrate a completely different skill, how to solve a legal problem, that is, answer a hypothetical problem involving one or more legal issues in the particular domain. This is crazy.
Perhaps there is a reader who begs to differ with my statement that answering an essay exam question involves a “completely different skill” than reading a case. And there are indeed similarities between the two skill sets. Both reading cases and answering exam questions involve identifying the relevant facts in a situation, identifying the legal issue or issues presented by the situation, and identifying the legal rules and principles that will be used to resolve the case. And these similarities have seduced generations of law professors (myself included) into believing that students should be able to transfer what they’ve learned about reading cases to the task of solving a legal problem (i.e., answering an exam question).
For years I have told my students that the same basic skill set was involved in both reading cases and analyzing problems, that both involved identifying issues, rules, arguments and conclusions, and that the difference was that reading cases involved a “historical” mode (figuring out what some judge did in the past) while analyzing problems involved a “predictive” mode (figuring out what some judge is likely to do in the future).
I even went further. I described for my students the basic types of legal arguments: deductive, analogical and dis-analogical, and policy-based. (Note: there are also inductive arguments, but as the opportunity to make such arguments rarely arises in first year courses I don’t spend much time on this category.) I asked my students to identify where judges had used these kinds of arguments in their opinions. And I explicitly told them that I expected them to make these kinds of arguments on their final exams.
And for years I have been taken aback by the fact that the majority of my students either fail to make these arguments or fail to make them well on the final exam. Slowly it dawned on me that the problem is in the assumption that the ability to analyze a case would transfer to the ability to analyze a legal problem.
My recent reading in pedagogical theory has reaffirmed this: Learning science research shows that transfer is notoriously difficult to achieve, even when it’s deliberately planned. Moreover, problem-solving is one of the most complex, highest level analytical tasks a student can be asked to perform, and it takes a lot of practice for a student to become proficient. Telling a student how to solve a problem and showing a student how others have solved similar problems are good, but they are not sufficient. The only way to get really good at solving problems -- is to solve problems. What this means for legal education is sobering: you can’t effectively teach students how to solve legal problems by having them read cases.
If we are going to test students on their ability to solve legal problems in writing, why don’t we provide students with multiple opportunities over the course of a semester to practice problem-solving, in writing? I believe there are at least three reasons why. The first involves time constraints; there is only so much time in a semester and there is a great deal of doctrine to cover. The second also involves time, the time needed to give feedback on the written answers to legal problems. The last is inertia; this is the way we were taught.
dOver the last few years I and my colleagues at the Center for Innovation in Legal Education have been grappling with these three obstacles and looking for solutions. Regarding the problem of time for coverage, we are experimenting with hybrid or flipped teaching in the law school classroom. We have produced approximately three dozen short videos on contract topics. By moving lecture content online, professors need not be driven by coverage concerns. This in turn opens up time and space in the classroom to devote to problem-solving.
With regard to the problem of the time necessary for giving feedback, first, feedback does not always have to be in the form of individual comments on each student’s paper. As others have pointed out, providing model answers, having students review each other’s papers, and reviewing a few examples in front of the whole class are ways to give feedback that are less time-intensive for the professor. More radically, we are experimenting with ways to provide online assessments for complex analytic tasks such as problem-solving. The basic idea is to break complex analytical processes down into their component parts, and to then figure out how each discrete part can be assessed online. These online assessments will not replace entirely the need to review a written answer, but they will provide additional practice and will help identify where in the process a student is having problems.
Inertia may prove to be the most intractable problem. It certainly helps if there is institutional support for innovation, and given the turmoil in the legal market and legal education, this may be an opportune time for institutions to consider providing such support. For the professor, it may be daunting to re-conceive what it is a law professor does but, after nearly thirty years of law teaching, re-inventing what I do in the classroom has been positively exhilarating.