Teaching the traditional analytical skills more efficiently and effectively could provide a much needed opening for broadening the range of skills taught to all law students. In the legal academy’s version of the “socratic method”, law teachers historically taught the analytical skills” implicitly”. They demonstrated legal reasoning by pushing students away from their raw intuitions of fairness and justice to articulate rules and exceptions, while attending carefully to the inevitable ambiguities of language.
Some law teachers suggest that the process of learning to “think like a lawyer” fundamentally requires time and practice and therefore cannot be significantly speeded up.
Yet the implicit approach has been repeatedly challenged by scholars seeking to teach legal reasoning more explicitly, by naming and explaining how it works.* (An obsession with the goal of teaching legal reasoning more efficiently was a major thread in two phases of my own legal career when I taught first year civil procedure. I struggled both to teach skills more explicitly and to provide students with opportunities to practice them.)
A recent contribution to this quest by my colleague Jane Winn grows out of her experiment teaching common law legal reasoning to undergraduates. Students were randomly assigned to use either a well-regarded study aid, or Winn’s own materials. The materials were also leavened by her own and colleagues’ experiences teaching foreign LL.M. and J.D. students coming from legal systems growing out of the European continental legal tradition.
Winn’s effort, aimed at law students, is notable in three respects. First, at twenty-nine pages it fills an intermediate-length niche: longer than a typical class “handout’, but shorter than the various book length alternatives. Second, it covers case briefing, outlining and exam questions, demonstrating how the three are related. Third, it grew out of an attempt to test her teaching method empirically using random assignment to a control group. Both law students and legal educators should find it a useful contribution.
The 2015 ABA accreditation standards may provide a laboratory in which to test efforts such as Winn’s. Standard 302 now requires law schools to adopt learning outcomes that, under subsection (b), must include legal analysis and reading; Standard 314 requires law schools to provide students with both formative assessment (feedback) and summative assessments (final “grades”); under Standard 315 law schools must engage in “ongoing evaluation of the program of education, learning outcomes, and assessment methods”. At its best this combination of more intentionally articulated outcomes, feedback to students, and program evaluation could prompt law schools to evaluate the potential for greater efficiency and effectiveness in teaching legal reasoning. I remain hopeful that enough schools will approach this task rigorously and in good faith that at least some progress can be made.
*Winn’s illustrious predecessors include:
- Leading Legal Realist Karl Llewelyn, whose The Bramble Bush: Classic Lectures on Law and Law School have been assigned to generations of law students;
- University of Chicago Professor and President and U.S. Attorney General Edward H. Levi, author of An Introduction to Legal Reasoning, originally published in the University of Chicago Law Review and then in book form;
- Critical Theorist and Harvard Professor Duncan Kennedy, who took the decidedly un-Harvard step of visiting at New England School of Law in his attempt to reach beyond elite students and sharpen his skill at teaching students about the “gaps, conflicts and ambiguities” that underlie the development of the common law. He shared his insights widely with former students moving into teaching careers. produced a short volume
- My former colleagues Pierre Schlag and David Skover, who produced a short volume early in their careers that catalogued the Tactics of Legal Reasoning (1985).
- Richard Michael Fischl and Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (1999)
- Leading clinical teachers Albert J. Moore and David Binder, Demystifying The First Year of Law School: A Guide to the 1L Experience (2009)
In recent decades much of the heavy lifting in legal reasoning has devolved upon teachers of legal analysis, research and writing. Among the results is a burgeoning literature proposing variations on the syllogistic Issue-Rule-Analysis (or Application)-Conclusion approach to analyzing and writing about legal problems, as well as a variety of textbooks.
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Filed under: Best Practices, Best Practices & Curriculum, Best Practices & Setting Goals, Best Practices for Institutional Effectiveness, First Year Law School Innovations | Tagged: #reformlegaled, ABA, aba standards, Assessment, Best Practices and Curriculum; Catalysts for Change |
Best Practices for Legal Education 
Professor Maranville’s insightful post should be circulated among law faculties. Those who have not yet read the ABA standards to which she refers may be surprised to find that the classic Socratic, case-based class approach, followed by an exam at the end of the semester,
seems to be on the way out. The standards require practices that are consistent with sound, proven pedagogical methods that are superior to one form of teaching that has its limits (i.e. the Socratic approach).
This is not the first time that it was suggested that the Socratic method, though perhaps the mainstream approach in nineteenth century law teaching, ought not be the predominant approach in modern law schools. See
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1266869
The ABA is actually incorporating sound pedagogy in the standards to which Professor Maranville refers. Will there be resistance to change? I’d bet on it. The interesting question is how hard the ABA will push
with these standards. If law school teaching is to improve, they ought
to push. Of course, law schools can willingly accept that pedagogical methods show that a variety of teaching methods other than the Socratic method are superior to using one method throughout a course. Moreover, providing students with interim assessments–both summative and formative–ought to become the norm, rater than the exception.
I have published a book that teaches legal reasoning explicitly by breaking it into its parts–rule-based reasoning, analogical reasoning, distinguishing cases, rule synthesis, and policy-based reasoning. My book includes numerous exercises to help students develop their legal reasoning skills, and it closes with a chapter on problem solving. Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013).