Tuesday, June 14, 2011
An important part of the recent changes in legal education is proposals to teach skills in doctrinal classes. I would like to contrast foundational legal skills with broad legal skills, such as legal writing, legal drafting, and trial practice. These foundational legal skills are the details for the broad legal skills. For legal writing, they include case analysis, case synthesis, factual analysis, application of law to facts, large-scale organization, small-scale-organization, analogical reasoning, rule-based reasoning, distinguishing cases, etc. We need to teach these foundational skills in all classes, not just skills classes (adding more skills classes to the curriculum is not enough), because students need repetition to perfect these skills. I attended a presentation a few years ago in which the presenter concluded that students are good at applying a single case to a set of facts (which is what the Socratic Method mainly teaches), but that they struggled with case synthesis and applying that synthesis to facts. Similarly, students generally had trouble dealing with ambiguity. To overcome these problems, we must teach foundational skills in every class. For example, a doctrinal professor could teach using case synthesis exercises in one class, and, in another class, the professor could employ rule-based reasoning exercises. Doctrine does not have to be taught by the Socratic Method. If we do not make these changes in legal education, especially teaching foundational skills across the curriculum, legal education will remain in the nineteenth century.