Saturday, December 23, 2023

How to Teach Legal Writing: Table of Contents

How to Teach Legal Writing (2023) by E. Scott Fruehwald

Table of Contents

Dedication iv
Preface v

Part One: How to Teach Legal Writing for New Professors 1
1. Preparing for Your First Semester of Teaching Legal Writing 3
2. Teaching Students How to Analyze Cases 13
3. Introducing Legal Writing to Your Students 31
4. Teaching Large- and Medium-Scale Organization 39
5. Teaching the Small-Scale Paradigm 53
6. Other Topics in the First Semester 73
7. The Second Semester: Teaching Persuasive Writing 87
8. Oral Argument 95

Part Two: How to Become an Expert Legal Writing Teacher 101
9. Teaching and Learning Theory 105
10. How to Become an Expert Legal Writing Teacher 119
11. The Growth Mindset and Motivating Students 155
12. Teaching Legal Writing Students How to Become Metacognitive
Thinkers and Self-Regulated Learners 179
Conclusion: Checklist for Becoming An Expert Legal Writing Teacher 219

Untitled

December 23, 2023 | Permalink | Comments (1)

Sunday, December 10, 2023

Thoughts About Teaching Critical Information Literacy

From Latia Ward:

To prepare for their future work, law students should learn how to search effectively within subscription and open access databases and how to evaluate critically the information found. ABA Standard 302(b) requires law schools to establish learning outcomes that include competency in legal research. Competency in legal research includes being able to find materials in a variety of formats from a variety of sources and the ability to evaluate that information. The American Association of Law Libraries has established Principles & Standards for Legal Research Competency. While all the Principles & Standards are relevant for teaching legal research, this post highlights two: “Principle II:  A Successful Legal Researcher Gathers Information Through Effective and Efficient Research Strategies” and “Principle III: A Successful Legal Researcher Critically Evaluates Information.” 

With regard to Principle II, there are many efficient research strategies, however, I will highlight three that are designed to facilitate searches that yield more information and are not hampered by algorithms: 

1. Search several databases (because content in one database is not always identical to content in another). 

2. Think about how the legal issue you are researching may be like another legal issue. See if the way to handle that other legal issue can apply to the issue you are researching. 

3. Review the West Key Numbers or topics and ask if you can describe the concepts using different words. If so, what words? 

Once the results of searchers are obtained, critically evaluate the results (Principle III). Critical evaluation includes asking questions. While there are many questions to ask about search results, one question to ask is, “Who is the intended audience for this information?” This and other questions are discussed by Safiya Noble, in her book Algorithms of Oppression. A more detailed discussion of critical information literacy’s importance within legal research is available in the blog post entitled Thoughts on Teaching Critical Information Literacy and Teaching Outside the Box at the RIPS Law Librarian Blog. 

December 10, 2023 | Permalink | Comments (1)

Wednesday, December 6, 2023

New Book: How to Teach Legal Writing

New Book: How to Teach Legal Writing by E. Scott Fruehwald.

I have written this book to help new legal writing professors begin their careers and to help established teachers become expert legal writing teachers. Part I is for new legal writing professors. Chapter One discusses planning and preparation for your first semester of teaching. Chapter Two explains case analysis and my contribution to case analysis–identifying the types of legal reasoning judges use in their opinions. Chapter Three concerns the first class on legal writing, including teaching the three stages of writing, holistic writing, and objective legal writing.

Chapter Four demonstrates how to teach large- and medium-scale organization of the discussion section of an objective memorandum, along with how to articulate that organization. Chapter Five is probably the most important chapter in this book; it shows you how to teach the small-scale paradigm. Chapter Six discusses other topics in teaching the first semester of legal writing. Chapter Seven switches to persuasive writing. It concerns the differences between persuasive writing and objective writing and how to persuasively write a brief. Finally, Chapter Eight tells you how to teach oral argument.

Part II demonstrates how to transition from being a competent legal writing professor to an expert one using general learning theory. Chapter Nine presents teaching and learning theory, including how the brain learns (the neurobiology of learning), Robert Kegan’s developmental stages of learning, and Bloom’s Taxonomy. Chapter Nine then applies that learning to demonstrate how you can become an expert legal writing teacher. Chapter Ten explains the growth mindset and how to motivate your students. Finally, Chapter Twelve explains how to help your students become metacognitive thinkers and self-regulated learners.

December 6, 2023 | Permalink | Comments (1)

Sunday, October 22, 2023

Table of Contents: Understanding and Overcoming Cognitive Biases For Lawyers And Law Students: Becoming a Better Lawyer Through Cognitive Science.

Here is the table of contents to my book Understanding and Overcoming Cognitive Biases For Lawyers And Law Students: Becoming a Better Lawyer Through Cognitive Science.

Table of Contents

Preface v
1. An Introduction to Cognitive Biases 1
2. Optimism Biases 17
3. Negativity Biases 39
4. Biases Concerning Others 53
5. Behavioral Economic Biases 73
6. Cognitive Biases and Practical Reasoning 105
7. Behavioral Legal Ethics 115
8. Special Topics 127
9. Review Exercises on Cognitive Biases 151
10. Review Exercises on Cognitive Biases
and Your Professional Life 161

(Scott Fruehwald)

October 22, 2023 | Permalink | Comments (0)

Sunday, September 24, 2023

Roadmap: Roadmap: The Law Student's Guide to Meaningful Employment, Third Edition by Neil W. Hamilton

Neil Hamilton has just released the third edition of his book Roadmap: Roadmap: The Law Student's Guide to Meaningful Employment.  This book helps law students plan their careers from day one.  It only costs $19.95 on Amazon.

"What do you say when a potential employer asks, "Tell me about a project that you have managed and what you learned from that experience; tell me specifically about how you handled a difficult team member in implementing the project?" If you are like most law students, the slightest mention of "project management" or "difficult team member" makes you cringe, evoking painful memories of free-riding classmates. Once your discomfort passes, you either struggle to come up with a meaningful answer or fail to think of an experience demonstrating your project management and teamwork competencies. Would it surprise you to know that was supposed to be an easy question? What happens when you get a tricky question, such as, "What value do you bring beyond just technical legal skills to help our clients be successful?"

The Roadmap process transforms this type of challenging question into an opportunity to differentiate yourself from other students. You will not need to wait for a specific question about the value you bring beyond technical legal skills to help legal employers and clients. Instead, you will understand what skills legal employers and clients need and will be able to explain how your strongest skills can help them succeed. You will be prepared with your best stories to demonstrate persuasive evidence of your strongest skills."

There is a rave review of the book at https://law.stthomas.edu/_media-library/documents/holloran-center/nalp-roadmap-review-2023.pdf

"Roadmap is a generous contribution to both law students and the law student professional identity formation movement."

"In Hamilton’s own words, 'the key first step in professional identity formation is for each student to take ownership of her own professional development.' This third edition of Roadmap is as good and as straightforward and user-friendly a guide to that first step as exists. 'It is tailored to foster each student’s growth toward ownership over their professional development and progress toward the goals of bar passage and meaningful post-graduation employment,' Hamilton writes. I agree with him, and I recommend the book for law students and law student professional identity and career services professionals alike."

(Scott Fruehwald)

September 24, 2023 | Permalink | Comments (0)

Thursday, September 21, 2023

Learning How to Distinguish Cases: A Basic Skill for Lawyers and Law Students

One of the legal education reforms that I have advocated is explicitly teaching miniskills, such as rule-based reasoning, analogical reasoning, and case synthesis.  I think that students need to master these skills before moving on to more advanced types of legal reasoning.  Studies have shown that second- and third-year law students have problems with these and other miniskills. 

One miniskill that is rarely taught in depth in law school is distinguishing cases.  Yet, this skill is basic for competent lawyers.

A lawyer can distinguish a case based on the facts or based on the reasoning/policy (or preferably both). 

In distinguishing cases, the attorney demonstrates that the facts of case A (the precedent case) are not substantially similar to the facts of case B (your case) so that the rule from case A does not apply to case B.   In other words, distinguishing cases is the opposite of reasoning by analogy. With reasoning by analogy, the advocate shows that the facts of case A (the precedent case) are substantially similar to the facts of case B (your case) so that the rule of case A applies to case B.

Distinguishing cases involves distinctions of degree so the lawyer must make the dissimilarities convincing.  The opposing attorney will try to argue that the cases are similar enough for the rules to apply to both.

Judge Aldisert has developed criteria to test analogies:

* The acceptability of the analogy varies proportionally with the number of correlates that have been identified.

* The acceptability of the analogy depends on the number of positive resembles (similarities) and negative resemblances (dissimilarities).

* The acceptability of the analogy is influenced by the relevance of the purported analogies. An argument based on a single relevant analogy with a single instance will be more cogent than one which points out a dozen irrelevant resemblances.  (Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 280 (Nat. Instit. Trial Advoc. 1996))

This test can be modified to apply to distinguishing cases: in making an attempt to distinguish a case convincing, find as many relevant distinguishing features as possible and compare the relevant differences with the relevant similarities.

An advocate can also distinguish cases based on the reasoning or policy of the cases. Case A (the precedent case) is distinguishable from case B because the policy (or the reasoning) behind case A is different than the policy (or the reasoning) of case B so the rule from case A does not apply to case B.

For more on distinguishing cases, including examples and exercises, see E. Scott Fruehwald, Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Publishing 2020).

(Scott Fruehwald)

 

September 21, 2023 | Permalink | Comments (0)

Monday, September 18, 2023

The Theory Behind My Book, Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals

I would like to explain the reasoning behind my book, Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals. The book introduces law students and others to legal reasoning through text and exercises. In this post, I would like to explain the approach behind my book.

I based my book on the scholarship of general education scholars, in particular, Duane F. Shell et. al., The Unified Learning Model: How Motivational, Cognitive, and Neurobiological Sciences Inform Best Teaching Practices (Springer 2010) and Susan Ambrose et. al., How Learning Works: 7 Research-Based Principles for Smart Teaching 100 (Jossey-Bass 2010). (Michael Hunter Schwartz’s articles and books on legal education were also important background for my book.)

Daniel Kahneman has asserted that the acquisition of expertise in any field requires the acquisition of many miniskills. (Daniel Kahneman, Thinking, Fast and Slow 238 (Farrar, Straus and Giroux 2011)) Ambrose and her co-authors have argued that to be fluent in a skill, a student needs to break down the skill into its parts (miniskills) and practice those parts separately until the student is proficient in each step of the skill. The student will then recombine the parts and work on the skill as a whole. (Ambrose at 102)

In my book, I apply the Ambrose approach to law. I break down legal reasoning (thinking like a lawyer or legal problem solving) into its miniskills–legal reading and case analysis, rule-based reasoning (deductive reasoning), synthesis (inductive reasoning), analogical reasoning, distinguishing cases, and policy-based reasoning--with a chapter and exercises on each miniskill. I then combine these miniskills with chapters on how to write a small-scale paradigm (a simple analysis), statutory analysis, how to respond to opposing arguments, and advanced problem solving and critical thinking.

You can download the preface to my book here.

(Scott Fruehwald)

September 18, 2023 | Permalink | Comments (0)

Monday, September 11, 2023

Wellness for Minorities in Law School

Over the last decade, law schools have discovered the importance of dealing with their students' wellness.  Wellness can especially be a problem for minorities because of their backgrounds and the unique problems they often face in law school.

Chapter Eight of my book, How Minorities Can Succeed in Law School (2023), covers the wellness problems that minorities can face in law school.

Chapter Goals.

  1.  To stress the importance of wellness for minorities in law school.
  2.  To give you some things to do if you start to feel stress in law school.
  3.  To talk about drug and alcohol abuse.
  4.  To tell you what to do if things become overwhelming–immediately seek help!
  5.  To talk about special problems with mental health that minority law students face.

(Scott Fruehwald)

September 11, 2023 | Permalink | Comments (0)

Saturday, September 2, 2023

Debunking the Major Myths Surrounding Mandatory Civility for Lawyers Plus Five Mandatory Civility Rules That Will Work by David Grenardo

Is civility important in the legal profession?

Debunking the Major Myths Surrounding Mandatory Civility for Lawyers Plus Five Mandatory Civility Rules That Will Work by David Grenardo.

Abstract

Civility remains a problem in the legal profession. Teaching law students about civility is important, if not critical, but it is not enough. Entertaining CLEs on civility for lawyers make for a fun hour, but they also fall short. Calls for civility and calls to return to civility have become routine, yet they can ring hollow. Adding phrases about civility to the oaths lawyers take to practice sounds wonderful, but those oaths oftentimes lack accountability. Recognizing that our country is divided and toxic in the way we communicate with each other is accurate, but that similarly fails to solve the problem. And most of all, we are naïve to hope that some lawyers will make significant changes to their behavior in a profession riddled with systemic incivility just because others in the legal profession kindly ask them to do so. Systemic change requires significant changes to the system.

Part I of this Article provides an overview of civility in the legal profession. Part II describes mandatory civility in the legal profession. Part III raises the major myths of mandatory civility and responds to each of them. Part IV includes proposed mandatory civility rules, while Part V sets forth arguments against mandatory civility and responds to those arguments. This Article concludes that mandatory civility rules are necessary and practicable.

How many more calls to civility must we endure as civility continues to decline in society and the legal profession? How long will the legal profession continue to pay lip service to civility while the negative effects of incivility continue to plague the profession? Talking is not enough—leaders of the legal system need to act. State bars, state supreme courts, and, if necessary, state legislatures must take the step that four brave states already have—mandate civility.

(Scott Fruehwald)

September 2, 2023 | Permalink | Comments (0)

Friday, September 1, 2023

Breaking Down Siloes and Building Up Students: The Transformational Possibilities of Professional Identity Formation

An excellent new article on professional identity training:

Breaking Down Siloes and Building Up Students: The Transformational Possibilities of Professional Identity Formation by Lindsey P. Gustafson, Aric Short, and Robin Thorner.

Abstract

Under the ABA’s sequenced approach to implementation of Standard 303(b)(3), schools should now have developed plans for providing opportunities for professional identity formation and should be implementing them. These plans must provide students with an “intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.” In addition, these plans should provide for frequent opportunities for development, “during each year of law school and in a variety of courses and co-curricular and professional development activities.”

Because Standard 303(b)(3) is necessarily tied to the unique character, existing structures, and available resources of a law school, each school’s plan will be different. That has been our experience as we have worked as professional identity formation leaders in different roles with varying perspectives: Lindsey Gustafson at the William H. Bowen School of Law, University of Arkansas at Little Rock, is a current Associate Dean for Academic Affairs and a skills and doctrinal professor; Aric Short at the Texas A&M School of Law is a former Associate Dean for Academic Affairs, a doctrinal professor, and currently serves as the Director of the Professionalism and Leadership Program; and Robin Thorner at St. Mary’s University School of Law is an Assistant Dean for Career Strategy, a teaching adjunct, and the current Director of Professional Identity Formation. In this essay, we hope to emphasize that professional identity formation efforts can occur all across the law school’s operations, from administrative offices to classrooms to voluntary student activities. We also provide specific examples of how schools can be more intentional and explicit as they weave together multiple professional identity formation opportunities for their students. This process takes time and attention, but it creates a powerful whole-building approach to identity formation that not only complies with 303(b)(3), but best positions our students for a successful, fulfilling, and impactful career in law.

(Scott Fruehwald)

September 1, 2023 | Permalink | Comments (0)

Sunday, August 27, 2023

How Minority Law Students Can Become Self-Regulating (Self-Directing) Students

Chapter Five of my book How Minorities Can Succeed in Law School (2023) shows minorities how they can become self-regulated (self-directed) learners.

Chapter Goals.

  1. To introduce self-regulated learning for minority students.
  2. To show you how to become an engaged learner, rather than a lazy one.
  3. To teach you the basics of self-regulated learning.
  4. To show you the three stages of self-regulated learning: the forethought stage, the performance stage, and the reflective stage.
  5. To teach you specific techniques for self-regulated learning, including deliberate practice, focused practice, developing schemas or frameworks (mental models), domain transfer, asking self-regulation questions, and creativity.
  6. To teach you how to develop problem-solving skills.
  7. To introduce you to critical thinking.

Pointer: One law professor has pointed out, “in order to successfully study for and pass the bar exam, students will need to be self-directed learners.” (Catherine Martin Christopher, Normalizing Struggle, 73 Ark. L. Rev. 27, 59 (2020).)  In other words, you should become a self-directed learner now!

(Scott Fruehwald)

 

August 27, 2023 | Permalink | Comments (0)

Wednesday, August 23, 2023

How Minority Law Students Can Develop Better Study Habits

Chapter Three of my book How Minorities Can Succeed in Law School (2023) is the most important chapter in the book because the most important thing a student can do to improve their chances of success in law school is to adopt better study habits.

Here are the chapter goals:

  1. To emphasize the importance of good study habits for minority students.
  2. To introduce you to how the brain learns.
  3. To show how this knowledge should change your study habits.
  4. To introduce spaced studying.
  5. To give you a study plan.
  6. To stress the importance of active learning.
  7. To emphasize the importance of repetition.
  8. To stress the importance of self-testing (practice testing).
  9. To help you understand interleaving.
  10. To introduce generative learning strategies and organizational learning strategies.
  11. To show what study habits are not effective.
  12. To advocate for varied practice.

(Scott Fruehwald)

August 23, 2023 | Permalink | Comments (0)

Monday, August 21, 2023

Developing A Growth Mindset and Motivation for Minority Law Students

The first chapter of my book How Minorities Can Succeed in Law School (2023) shows minorities how they can develop a growth mindset and improve their motivation.

Here are the chapter goals:

1. To help you understand the growth mindset and show how it is important for minority law students.
2. To show you how to develop a growth mindset.
3. To help you understand motivation and show how it is important for minority law students.
4. To help you understand how to motivate yourself.
5. To help you understand cognitive motivators and emotional motivators.
6. To help you understand the importance of setting goals.
7. To help you understand the differences between learning goals and performance goals.
8. To help you understand the difference between intrinsic and extrinsic motivation.
9. To help you understand self-efficacy and show how it is important for minority law students.
10. To help you understand the importance of a supportive environment with motivation.
11. To show you how to create the subjective value of the goal.
12. To show you how to create the expectation for successful achievement of the goal.
13. To show you how to create a positive learning environment.
14. To show you how you can regulate your emotions for self-motivation.
15. To show you the importance of taking charge of your learning.
16. To show you the importance of developing the right attitude toward law school.

(Scott Fruehwald)

August 21, 2023 | Permalink | Comments (0)

Saturday, August 19, 2023

New Book: How Minorities Can Succeed in Law School

I have just published a new book to help minorities succeed in law school:

How Minorities Can Succeed in Law School (2023).

"The ending of affirmative action by the Supreme Court sent shock waves throughout legal education. For over 40 years, a system had been in place that provided diversity to the law school student population and minority lawyers to underserved communities. Now, law schools would have to seek other ways to satisfy these needs.

This author believes that improving education for minorities in law school would go a long way to maintaining the presence of minorities in both the law school and underserved communities. About ten years ago, I wrote a paper on how law schools could help minorities succeed by adopting new teaching methods. I wrote this book to help minority students learn how to apply the lessons of my initial article on their own.

The early chapters of this book will introduce you to the basics of learning the law, the second part will give you the tools you need to become a self-authoring learner, and the final part will tell you things you need to know about law school.

Chapter One shows you how to adjust your attitude to become a better learner. Chapter Two teaches you how to read legal texts. Chapter Three is probably the most important chapter in the book because it explains how to study effectively. Chapter Four will explain “meta-cognition.” Chapter Five discusses self-regulated (or self-directed learning). Chapter Six tells you the details of what to expect in law school, such as information about doctrinal classes, exams, legal writing, legal research, summer jobs, etc. Chapter Seven gives you essential context for attending law school. Finally, Chapter Eight talks about the important topic of law school wellness."

There is a preview on the Amazon page.

(Scott Fruehwald)

August 19, 2023 | Permalink | Comments (0)

Monday, August 7, 2023

Emory to host the 8th Biennial Conference on the Teaching of Transactional Law and Skills - October 6-7, 2023

The theme of this year's edition of Emory's Biennial Transactional Legal Skills Conference is "Preparing Future Lawyers to Draft Contracts, Do Deals, and Take Care of Business." And here are the additional details about the conference, the call for proposals, registration from Professor Sue Payne, the William and Jane Carney Professor of Transactional Law and Practice and Executive Director of Emory's Center for Transactional Law and Practice:

As the summer winds down and the fall ramps up, please consider taking a refreshing break by travelling to Atlanta on October 6-7 for Emory’s 8th Biennial Conference on the Teaching of Transactional Law and Skills. Our theme gets back to basics: “Preparing Future Lawyers to Draft Contracts, Do Deals, and Take Care of Business.” Transactional law and skills educators from around the country will meet to talk shop, but also to enjoy each other’s company once again. Pause now to register, submit a proposal, or nominate a colleague for the Tina L. Stark Award for Teaching Excellence. For more information, click here: Emory's Transactional Law and Skills Conference. We look forward to seeing you in October!

(jbl).

August 7, 2023 | Permalink | Comments (0)

Tuesday, August 1, 2023

Let Them Lead: Professional Identity Formation in Student Conferences By Katrina Robinson

Here is an excellent article on teaching professional identity in student conferences:

Let Them Lead: Professional Identity Formation in Student Conferences By Katrina Robinson.

"Student-faculty conferences are a hallmark of first-year legal writing courses. The predominant view in the legal writing community is that the individualized feedback that flows from a student’s in-depth conversation with their professor about their writing is critical to the student’s growth as a legal writer.1 But the efficacy of this one-to-one exchange depends on the student’s willingness to actively engage in the process.

To address the challenge of student engagement, legal writing professors continue to refine the pedagogy for successful student conferences. But typically, they have done so within the confines of the traditional roles of student and professor. This Article advocates for changing that approach in the second semester of the first year legal writing course so that conferences resemble a professional conversation attorneys would have about written work product."

(Scott Fruehwald)

 

August 1, 2023 | Permalink | Comments (0)

Monday, July 31, 2023

Dethroning Langdell by Beth Hirschfelder Wilensky

Here is an excellent article that criticizes the overuse of the case method in the first year:

Dethroning Langdell by Beth Hirschfelder Wilensky.

"What if we are teaching law entirely wrong? We fill our syllabi with appellate court opinions—even though very little of what most attorneys do involves reading these opinions to learn foundational legal doctrine. We cold call on students—even though most circumstances in which attorneys talk about the law bear no resemblance to the classroom cold call. We give over significant parts of our class time to Socratic dialogue—even though attorney practice mostly involves writing and rewriting a variety of legal documents, collaborating in small groups, negotiating, client counseling, and many other things that Socratic dialogue doesn’t teach, model, or assess.

This trio of teaching methods, which we inherited from Christopher Columbus Langdell, has many flaws. I identify a fundamental one: our overreliance on the case method, cold calls, and Socratic questioning incorrectly tells our students that their facility with these classroom methods is a measure of their lawyerly skill. That makes our pedagogy inauthentic. And so I propose this Authentic Pedagogy Test: law school pedagogy should accurately inform students about the likelihood that they will be successful and satisfied practicing attorneys.

My thesis is not that we should abandon Langdell’s methods entirely. Rather, we should consider the opportunity costs attendant to allowing them to occupy so much of our teaching space, especially in the 1L year. If we gave over less space to these traditional teaching methods, we would free up room to do many other important things. We would have room to engage students with all of the different ways that lawyers use the law in their work and work product, particularly in transactional practice. We could focus our students’ attention on the work that attorneys do for clients, and what it means to represent a client. We could engage students who do their best work in collaboration with others or when given an opportunity to reflect before speaking—both things that attorneys regularly do in practice. And we would be able to provide opportunities for students to build and use expertise like attorneys, who often approach legal problems in a very different way than novices do.

All of these are things that some law professors already incorporate into their doctrinal classes to some extent. But these methods still take a backseat to Langdell’s trio of case method, cold calling, and Socratic method. The Authentic Pedagogy Test suggests we can do better, and provides a guiding principle for how."

(Scott Fruehwald)

July 31, 2023 | Permalink | Comments (0)

Saturday, July 29, 2023

More on Synthesizing Rules: Charles Calleros, Law School and Exams (2021)

A few days ago, I had a post on synthesizing rules.  Since then, I have learned that Charles Calleros has an excellent chapter on the subject in Law School and Exams (3d ed 2021).  The chapter has a series of illustrations followed by several exercises, ranging from simple to the challenging task of synthesizing the old property cases establishing the law of capture in the context of hunting or fishing animals in the wild.

(Scott Fruehwald)

July 29, 2023 | Permalink | Comments (0)

Teaching Dissents by Sherri Lee Keene.

I have always thought that teaching dissents was vital because it demonstrates the ambiguity in the law.  Here is an excellent article on teaching dissents:

Teaching Dissents by Sherri Lee Keene.

Judges’ perspectives and attitudes—and even their biases and assumptions—naturally find their way into legal analysis and decision-making. Yet this reality is something that the language of opinions tends to deny. Court opinions are often written to sound authoritative and sure, making legal decisions seem purely logical and channeling a tone of inevitability. The way that opinions are written tends to obscure the human aspects of legal decision-making and mask subjectivity. Indeed, as judges select and interpret facts and draw inferences, a judge’s written analysis often neglects to even acknowledge that this is occurring. In doing so, judges can hide the turning points in a case where they favor one viewpoint over another based on their own experiences and ideas about how the world works.

The very presence of dissents challenges the myth of legal decision-making as objective and straight-forward; in speaking back to the court’s opinion, a dissent lays bare the complexities and reveals points of uncertainty in a case. In contrast to the voice of the majority, which often seeks to draw attention away from conflicts, dissents can show where choices were made in the decision-making process, and where others could have been made. In exposing the ambiguity in a case, dissents make room for alternative realities and experiences that were not raised by the majority and show where their consideration could have made a difference.

This Article considers the role that dissenting opinions can play in preparing students to be critical readers of judicial texts who look beyond a court’s language to understand the law and situate court opinions in a broader social and cultural context. This Article provides practical suggestions about how law teaching can incorporate dissents—and other writings—to better prepare law students to engage deeply with the law and identify spaces where they can challenge existing precedent and advocate for positive change.

(Scott Fruehwald)

July 29, 2023 | Permalink | Comments (0)

Saturday, July 22, 2023

Synthesizing Rules

One of the most important skills that law students need to learn in law school is how to synthesize rules from cases.  Yet, studies have shown that second- and third-year law students are not good at synthesizing rules.  I have heard two conference presentations by Professor James Stratman in which he has stated that, while second- and third-year law students are generally proficient at applying a single case to a set of facts, they are poor at synthesizing rules and applying several cases to a set of facts.  (see also here at 4)  This deficiency has developed because, except for perhaps a half a class in legal writing, synthesizing rules is not usually taught in law schools.  To help students develop this skill, first-year professors need to drill this skill, just like they do case analysis.

Synthesizing rules is important because the common law develops on a case-by-case basis.  One judge decides case A.  Another judge uses that case to decide case B, which is on similar facts.  The next judge then relies on cases A and B to determine case C, which becomes a new precedent.  In other words, each new case adds to the story of the rule.

Synthesis in the law involves synthesizing rules in connection with a set of facts.  "Rule synthesis is the process of integrating a rule or principle from several cases."  (Paul Figley, Teaching Rule Synthesis with Real Cases, 61 J. Leg. Educ. 245, 245 (2011))  More specifically, "Lawyers begin this process of synthesis by first identifying the pieces of authority relevant to a legal issue and then fitting these pieces together to determine the overall analytical framework they reasonably support."  (Jane Kent Gionfriddo, Thinking Like A Lawyer: The Heuristics of Case Synthesis, 40 Tex. Tech L. Rev. 1, 4 (2007))  Most importantly, "Only in making sense of all of the cases will a lawyer be able to formulate a clear picture of the law to determine an appropriate solution to the legal problem at issue."  (Id. at 6)

There is not just one formula for synthesizing a rule.  How you synthesize a rule depends on the materials being synthesized.  Sometimes the materials will produce a single factor; other times the synthesized rule will comprise two or more factors.  Often, one case will provide a framework for the rule with other cases filling in.  Other times will you have to combine cases to produce the rule.

Learning case synthesis begins with synthesizing a single-factor rule.  First, one must find all the relevant cases on that issue in relation to the facts.  This usually means assembling all the mandatory authority from the governing jurisdiction.  You must also be able to understand what cases belong together (grouping).  Once you have determined the relevant group, you should carefully read the relevant cases, making sure you fully understand their reasoning, both explicit and implicit.

Synthesizing a single factor requires that you blend the cases into a coherent whole.  In other words, your synthesis must be consistent with all the case holdings and reasoning.  To synthesize a single-factor rule, look at the outcome of each case for that factor and how the similarities and differences among the facts and reasoning of those cases affected the outcomes.

Synthesizing multiple-factor rules is similar to synthesizing single-factor rules, except you first must determine what factors the cases require to establish a test (there is a preliminary grouping stage into factors).  Separate out the different factors.  (A chart might help you to do this).  Then, for each factor, look at the outcome of each case for that factor and how the similarities and differences among the facts and reasoning of those cases affected the outcome for that factor. 

The final step in a synthesis is to test your synthesis.  Have you accounted for all the relevant cases in your synthesis?  Are the cases relevant to your facts?  Is your synthesis convincing?  Is there an alternative synthesis?  If so, is the original or alternative synthesis better?  Has your synthesis produced a clear rule that can be applied to your facts?

Of course, the above assumes that the law in real life is consistent.  It isn’t. You can’t always reconcile all cases on a particular point.  Judges sometimes don’t blend in a previous case, and sometimes they miss or misunderstand an earlier case.

There are a number of exercises on synthesizing cases in Chapter Five of my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (2020).  Also, the Figley and Gionfriddo articles mentioned above have useful materials on case synthesis.  Finally, Shapo, Walter, and Fajans' Writing and Analysis in the Law contains excellent exercises on case synthesis.

(Scott Fruehwald)

July 22, 2023 | Permalink | Comments (0)