ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Thursday, April 23, 2015

Issue Spotting: A Response to a Comment

Howard Law's Matthew Bruckner has posed some challenging questions for me in the comments to the second post in this series.  He writes:

To the point raised in your post though, even experienced lawyers benefit from headnotes on cases, reading treatises, learning to pick up on contextual clues, etc. And your casebook likely has a table of contents that situates the case you're reading in class within a range of issues and sub-issues. I suppose that if you situate the case for the students, there is a risk that students will stop trying to pick up these contextual clues for themselves. But if you don't, there is also a risk that students won't ever appreciate why you read a case in the first instance, etc.

ScholarMatthew has a point.  There are lots of shortcuts to issue spotting for those students who are on top of things enough to use them.  I have a running joke with my students in both contracts and business associations.  If a student has a hard time identifying the issue in the case or (in contracts) tells me that the issue is whether one party breached (always a good place to start), I tell them to check the syllabus and see what subject matter we are covering on that day.  After some laughter and shuffling of papers, we approach an identification of the issue and establish once again that students do not look at syllabi and certainly would not benefit from 12-14 page syllabi identifying SLOs.

But that is just the beginning of an issue-spotting exercise, because as we progress through the semester, I also use issue-spotting as a mechanism of review.  So, for example, when we get to affirmative defenses, we may have cases in which extrinsic evidence, the statute of frauds and interpretive issues also arise.  In discussing damages, in addition to those issues, there might also be questions of affirmative defenses or even problems in formation.  I use Socratic questioning to see if students can find those issues as well.  And I really do aspire to treat the Socratic questions as means of reminding them, through step-by-step questioning, of things they knew in their past life (that is, three weeks ago, when the relevant doctrine was still stored in short-term memory).  For me the Socratic method is, in this instance, both about teaching them the right questions to ask of a case and about reminding them that they can do this on their own.

Matthew Bruckner's comment continues:

We definitely practice reading cases, extracting relevant facts and issues, understanding a case' procedural history in my 1L contracts class. But by second semester, I'm giving them the issue flat out and then we spend the whole class working on legal analysis trying to understand why the court reached the conclusion that it did.

I never give up on issue spotting.  It is not only relevant in the litigation context.  But as I'm sure Professor Bruckner knows, it is also the best mechanism for helping transactional lawyers prevent the contract they are drafting from becoming Exhibit A to the complaint.  Issue spotting is relevant whether the client is coming to you with a transaction gone wrong or a contemplated transaction.  The challenge facing transactional attorneys is all the harder because they have to entertain ideas of what might go wrong and figure out the best way to insulate the client from liability if what might happen does happen.

I am near the end of teaching a bar prep course for the first time.  I had my 3L students write about twenty practice bar exam essays, and at the end of the semester, I am still reminding them: IRAC, IRAC, IRAC.

Links to Related Posts:

The Current Series 

V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?

IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?

III: My Advice to Law School Transparency: Declare Victory and Move On

II: SLOs and Why I Hide the Ball (and Why You Don't Have To)

I: Why Is the Legal Academy Incapable of Standing Up for Itself?

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice

Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom

Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy

Thoughts On Curricular Reform III: The Costs of Change

Thoughts on Curricular Reform II: Teaching Materials

Thoughts on Curricular Reform I: The Problem

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Thank you for thoughtfully engaging with my comments. Here's two follow-ups. I suppose neither demands a response.

First, it seems we agree that "there are lots of shortcuts to issue spotting for those students who are on top of things enough to use them." Frankly, my brightest students and my most hard-working students (two groups that don't always overlap) could probably learn contracts pretty well on their own. Even if I was a horrible teacher--which I try hard not to be--that actively impeded their learning, they'd probably figure things out despite my bungling. So, I'm not terribly worried about them, other than to ensure the class is rigorous enough that they remain challenged and engaged. Instead, I worry most about my least capable students. Yes, they have an obligation to engage with the material, and to try to learn it on their own. But I think our obligation as teachers is to create an environment in which that learning is most likely to occur. To me (and it seems we differ here), that means using multiple approaches to help these students situate what they've learned into a larger conceptual framework for the class.

My second point is more of a clarification. I didn't mean to imply that I ever give up on issue-spotting. Rather, when I wrote that by second semester I'm often giving them the issue, I meant that I'll state the (hopefully by now) transparent issue in the case. For example, when studying Undue Influence, we read Odorizzi v. Bloomfield School District. I'll note that the court addressed whether the school officials brought to bear excessive pressure and whether the teacher was particularly susceptible to that pressure. Are those the only issues? Of course not! What does "excessive pressure" mean? What facts suggest that such pressure may have been brought to bear? What facts suggest otherwise? And that's just on the surface. I'll also then probe on connections to other material. Did the teacher (or should he have) brought a claim for duress? Misrepresentation? Etc.

So, I merely meant that I jump-start class conversation by noting the most obvious issue. I think this has the benefit of supporting the bottom of the class in obtaining at least a surface understanding of the material and why we're talking about it (by situating the case within the larger context of the class). But knowing I'll do this gets the creative juices of the highest performers flowing and has them trying to think across cases and integrate the material. Is this the right balance of supporting the bottom and challenging the top? Maybe not. But I thought I'd share one way that I attempt to do so in the hopes that others will do the same and that I'll learn from them.

Thanks for the dialogue (both on- and off-line) about this.

Posted by: Matthew Bruckner | Apr 23, 2015 8:46:00 AM

I suspect our approaches to teaching are quite similar. The way you teach Odorizzi sounds a lot like the way I teach that case. Like you, I use “multiple approaches to help these students situate what they've learned into a larger conceptual framework for the class,” and I don’t know what I have written that would make you think otherwise. Perhaps because I am emphasizing Socratic teaching in connection with issue spotting, I have given the false impression that I only use Socratic approaches, but it is part of a mix. But I would stress that, for all its flaws, it would be hard to develop a teaching method that is more individuated than Socratic teaching. Socratic exchanges can be a very useful barometer of the extent to which individual students – and the class as a whole -- are grasping the material, including the meta-level of grasping what they are supposed to be trying to grasp.

I no doubt do sometimes follow your method and tell students the issues if I despair of them finding the issues on their own. I would do so in the interests of not wasting class time and moving ahead. Also, Socratically prodding a student who is completely lost, panicked or hopelessly confused humiliates the student and serves no useful purpose. But I do not think that simply giving students answers that they can figure out for themselves is effective pedagogically. I am pretty dogmatic about promoting active learning among law students. So I also avoid making my PowerPoint slides public and encourage each student to write her own outline. I have plenty of colleagues who differ on this point, and that’s all to the good.

They are free to teach in a manner that works for them and their students, and I will do the same. My point is not that the way I teach is the only way to teach. Rather, I am unpersuaded that teaching methods tested at lower levels of education are necessarily appropriate for law school, and I therefore resist being forced to abandon approaches that I think work for my students.

Posted by: Jeremy Telman | Apr 24, 2015 9:07:07 AM