Sunday, May 13, 2012
The Langdellian-Case Method, the traditional method of teaching in law schools, does not teach context or purpose. Students read cases for a traditional law school class so that they can be prepared to be called on in class about that case. Otherwise, they are usually given no purpose and no context for reading that case. This is like an astronomy class that teaches each of the planets but does not say why the planets are being discussed and does not put them in the context of the solar system.
Recent studies in education and legal education argue that students learn better when they have a purpose behind the learning and a context for the learning. For example, Professor James Stratman posits that students understand more when they read with a "real world purpose" (as a judge, an advocate, etc.), rather than merely preparing for class. (James F. Stratman, When Law Students Read Cases: Exploring Relations between Professional Legal Reasoning Roles and Problem Detection, 34 Discourse Processes 57 (2002)). Putting a case into context also helps learning. This means reading the case within a narrative–as a real world story. As the Carnegie Report has noted, "Actual legal practice is heavily dependent upon expertise in narrative modes of reasoning. . . . It follows that the formation of the habits of mind needed for legal practice also demand fluency in both the engaged mode of narrative thinking characteristic of everyday practice and the detached mode of analytical thinking emphasized in case-dialogue teaching." (William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond & Lee S. Shulman, Educating Lawyers: Preparation for the Profession of Law 109 (Jossey-Bass 2007)). In reading cases, a student should always think about the law’s connection to the facts and how this case relates to other cases.
Considering that the traditional law school classes do not generally teach context and purpose, the following statement is revolutionary: "Deal lawyers start from the business deal. The terms of the business deal are the deal lawyer’s facts. The lawyer must then find the contract concepts that best reflect the business deal and use those concepts as the basis of drafting the contract provisions." (Tina L. Stark, Thinking Like a Deal Lawyer," 54 J. Legal Educ. 223, 223 (2004)). In three sentences, Professor Stark has turned legal education on its head. Teaching students transactions does not start from learning a series of cases in isolation; it starts from understanding why we are teaching the law. Everything a student learns about transactional lawyering is now focused around a goal–thinking like a deal lawyer.
She continues: "Translating the business deal into contract concepts is only one aspect of thinking like a deal lawyer. The better deal lawyers are able to look at a transaction from the client’s perspective and add value to the deal. Looking at a contract from the client’s perspective means understanding what the client wants to achieve and the risks it wants to avoid. ‘Adding value to the deal’ is a euphemism for ‘finding and resolving business issues.’ These skills are problem-solving skills and are an integral component of a deal lawyer’s professional expertise. They require a sophisticated understanding not only of substantive law, but also of business, the client’s business, and the transaction at hand."
Decide for your self: will a student learn more in a traditional class that does not give a student context and purpose or from a class that starts with the above? Which approach will a student find more interesting?