ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Thursday, April 30, 2015

Siloing: The Next Unneeded Import from Undergraduate Education

Silos, by Scott Davis

I don't know if this is a thing yet, and I hope it doesn't become one, but I have been hearing, here and there, from people involved in legal education reform, that we need to combat "siloing" in the law school curriculum.   You can find denunciations of siloing at lower levels of education here and here and here (for example), and a lot of the anti-silo rhetoric seems to be coming form the U.S. Department of Education.

To the extent that the war on siloing means that undergraduate education (or secondary school education) should be interdisciplinary and that academics should also build bridges across disciplines, I am all for it.  But what is its application to legal education?

The standard anti-siloing spiel in legal education goes something like this:

We teach our students in silos.  They learn contracts in one course and torts in another, property in a third, and civil procedure in a fourth.  But when the client walks into your office, she just has a story, and you have to recognize that all of the different doctrinal areas that you studied in law school could be relevant to that story.  You can't just compartmentalize legal scenarios into one doctrinal silo or another.

 That is obviously true, but it doesn't mean that we should just teach one amorphous course in the first year called Everything that Could Possibly Go Wrong and What to Do About It.  Doctrinal siloing is, in my view, the right approach, certainly in the first year.  Otherwise, students don't learn, for example, that the logic of contractual liability is very different from that of tort liability or that certain doctrines that have the same names work differently in different doctrinal areas.  There is, again in my view, plenty of time in the second and third years to make certain that students understand that one fact pattern can generate issues across the doctrines, but students should never lose sight of doctrinal boundaries and their importance.

A few examples:

  • The other day, I was teaching a bar prep course and going over assignments.  One of my students arrived at the wrong conclusion because he treated assignments according to agency rules.  I was impressed that the student remembered agency rules, but his answer was just wrong.  There was nothing to say except, "Sorry, assignment is different from agency."  
  • I have written here and (more pithily) here about how the state secrets privilege has gotten messed up because courts have applied a doctrine that arises in the contractual context (Totten) to cases that involve torts allegations against the U.S. government and its contractors.  A party to a contract may agree that the content of that contract is secret and therefore non-justiciable; a tort victim makes no such agreement.
  • Many of the craziest moments in the notorious OLC memos from the Bush Administration occur when very smart lawyers, eager to justify outrageous government conduct, draw on inappropriate analogies from other doctrinal areas.  So for example, they got their definition of "severe pain" from a statute that determines what constitutes an emergency medical condition for the purposes of entitlement to certain health benefits, and they consulted criminal law concepts of "necessity" and "self-defense," seemingly unaware of how limited those defenses are in the appropriate doctrinal context. 

So, if somebody starts denouncing "siloing" in the context of discussions of curricular reform, please consider the dangers of eliminating doctrinal silos.

Links to Related Posts:

The Current Series 

IX: Legal Education in the News and on the Blogosphere
VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
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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