Thursday, October 30, 2008
One of the conundrums many ASP professionals run into is the use of “the law” to teach skills. Why is this a conundrum? If more than one professor teaches the same subjects (like two Torts classes taught by two different Torts professors) there are bound to be differences in coverage and interpretation of the law. This is an issue fraught with challenges, most importantly, what law do we use? After dealing with this challenge each year, I have developed some basic strategies.
1) Use neutral law. What is neutral law? Contract formation requires offer, acceptance, and consideration. A prima facie claim of negligence requires duty, breach of duty, causation, and harm. These are very broad, general principles of law where very few professors will differ, although, as my own disclaimer, I have had a professor disagree with the harm element in negligence. I try to use examples that do not include nuances of law that are ripe for differing interpretations.
2) Always preface any discussion of law with a disclaimer about using the professor’s rules and interpretations on the exam. I frequently remind students that their teacher is writing and grading the exam, not me, and they need to use the law they are taught in class on their exams. This leads to discussion about ambiguity and interpretation in the law, which is another area where many first-year law students need reassurance that ambiguity is their friend, not their foe.
3) Use non-legal examples to illustrate legal principles. Mike Schwartz has some excellent examples that my students have raved about. Charles Calleros provides some fantastic examples in his Legal Method and Writing text. Non-legal examples provide a fabulous vehicle for discussing analogical reasoning and it’s relationship to the case method.
When speaking with reluctant professor’s, I strongly suggest
explaining how ASP is using the law. Differentiate using the law as a vehicle for teaching skills from
teaching the law itself. I leave plain
vanilla law teaching to the doctrinal professors; that is their job, not
mine. However, teaching skills to
understand, apply, and demonstrate comprehension of the law is my job. It’s
hard to teach the skills without a vehicle, akin to teaching car mechanics without
parts of a car. I have found that even
reluctant law professors are more amenable to ASP when you give them their due
and reassure them you are not impugning their teaching methods or teaching
skills. Once a reluctant professor is reassured
you are not poaching on their turf, it’s helpful to define what you do in a way
they understand. Let them know Academic
Success in law school is an area of academic study just like Torts, Contracts,
or Business Organizations. We have our
own methods and goals. While some
broad-based rules of law are necessary as vehicles for teaching skills, ASP
professionals don’t need to teach the law to teach skills. (RCF)