Saturday, September 27, 2008

legal reasoning in both legal writing and substantive courses

A new post by Marc Blitz at Prawfsblog addresses the way legal reasoning is taught in substantive law courses. Blitz recently taught a course in legal reasoning, using Steven J. Burton's Introduction to Law and Legal Reasoning. Burton's preface claimed that in most courses, "[s]tudents are left largely to their own devices to extract worthwhile lessons about legal reasoning from examples and discussions.” Blitz wonders if that's still true and asks law professors the following:

[D]o you pause to ask how a court is analogizing or distinguishing a new set of facts to a prior case, or a hypothetical case that everyone would agree should come out a certain way – and to generalize about what makes for a strong or weak analogical argument?  And how do you diagnose what’s going wrong where students run into trouble trying to make a convincing analogical argument (either in class or in exams)?  Also, are those of you who teach substantive courses (like constitutional law or torts) familiar with the texts that your school’s Legal Writing or Legal Analysis teachers use to teach legal reasoning, and do you ever remind students of these texts in trying to get them to apply previously-learned lessons on legal reasoning in their substantive courses?  Would it make sense to ask students to keep these texts throughout law school, instead of selling them, so that they and their teachers could refer back to them in their subsequent courses (which, whatever specific area of law they are about, will also be at least in part about honing one’s skills in legal reasoning and argumentation)?

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