Legal Skills Prof Blog

New Law Teaching Journal: The Journal of Law Teaching and Learning

The Institute for Law Teaching and Learning has begun publishing a journal on legal education:

The Journal Of Law Teaching and Learning.

"The Journal is a peer-edited publication dedicated to high-quality articles designed to enhance law teaching. The Journal has an emphasis on full length scholarly articles but will also publish quality essays, books reviews, and other shorter form scholarly works. The Journal staff and Editorial Board of nationally recognized legal pedagogy scholars conduct selection, edits, and peer review of all publications."

Contact

Michael T. Colatrella Jr., Professor of Law, University of the Pacific, McGeorge School of Law, Editor-in-Chief, [email protected]

Emily Grant, Associate Dean for Academic Affairs and Professor of Law, Washburn University School of Law, Managing Editor, [email protected]

Lindsey P. Gustafson, Associate Dean for Academic Affairs & Arkansas Bar Foundation Professor of Law, UA Little Rock William H. Bowen School of Law, Managing Editor, [email protected]

(Scott Fruehwald)

Torts Exercises for Law Students

A Companion to Torts: Learning to Think Like a Torts Lawyer by Doing Exercises by E. Scott Fruehwald.

This book takes a revolutionary approach to learning torts law: its goal is to teach law students to think like torts lawyers. Thinking like a lawyer means solving a problem to produce a legal solution. This process involves using several types of reasoning in combination, including synthesis, rule-based reasoning, analogical reasoning, distinguishing cases, policy-based reasoning, and creativity. A torts lawyer uses these reasoning methods to solve torts problems. This book includes a variety of torts exercises on the different types of legal reasoning to achieve the goal of teaching students to think like torts lawyers.

 

This book is a supplement to torts casebooks and textbooks. Its main audience is first-year law students who are taking torts. It may be required by a professor, or students may use it as a supplement to the class to improve their torts skills and general legal reasoning skills. This book will also be useful for incoming law students who want to develop their torts and legal reasoning skills before they attend law school. Law school begins quickly on the first day, and it is better to be ahead than behind. Finally, this book will also help law graduates who are preparing for the bar, academic support staff who want to help students improve their legal reasoning skills, and practitioners who want to refine their legal reasoning skills.

 

(Scott Fruehwald)

 

 

 

 

An Empirical Study of the Relationship Between Metacognitive Skills, Performance in a Bar Prep Course and Bar Passage

An Empirical Study of the Relationship Between Metacognitive Skills, Performance in a Bar Prep Course and Bar Passage by Jennifer A. Gundlach & Jessica R. Santangelo.

Abstract

This article builds on our prior research about metacognition and its importance for law students’ learning. We hypothesized that given our past findings about the relationship between metacognition and academic performance during the first year of law school, it was possible that metacognition might also play an important role in success with a third-year bar preparation course and/or on the bar exam.

Our current study documents law students’ metacognitive skills during a final-semester bar prep course and examines the relationship between those students’ metacognitive skills and performance in the course and bar passage. We found that students are capable of gaining metacognitive knowledge and regulation skills during law school and even as late as the last semester of law school. We also found evidence that instruction and prompts to practice metacognitive regulation during the first year of law school had a long-term impact on students’ continued use of those skills in their final semester. This evidence is important because we also found, as we have in prior studies, that students’ success in a final-semester 3L bar preparation course, as well as their cumulative law school GPA, is associated with their level of metacognitive knowledge and regulation skills. While we did not find evidence of a direct relationship between metacognitive skills and bar passage, there was a relationship between bar passage and both course performance and cumulative GPA. Accordingly, we contend that metacognitive skills are an indirect support of bar passage given that they contribute to academic success, which in turn supports success on the bar exam. We conclude that, based on the relationship between metacognitive skills, academic success in law school, and bar passage, law schools have an ethical obligation to support law faculty in explicitly and intentionally incorporating metacognitive skills instruction into the law curriculum.

(Scott Fruehwald)

Raising the Bar: The NextGen Bar Exam and Contract Drafting by Karen J. Sneddon & Susan Chesler

The NextGen Bar Exam will require law schools to teach students differently throughout the curriculum.  This article discusses the NextGen Bar and contract drafting:

Raising the Bar: The NextGen Bar Exam and Contract Drafting by Karen J. Sneddon & Susan Chesler.

Abstract

Set to debut in July 2026, the NextGen Bar Exam will test a broad range of foundational lawyering skills needed in today’s practice of law, including contract interpretation, drafting, and revising. According to the National Conference of Bar Examiners (NCBE), this exam is designed to balance the skills and knowledge needed in litigation and transactional legal practice. More specifically, the foundational skills that will be tested include drafting and revising contract provisions consistent with the facts, the law, and the client’s objectives, interests, and constraints. The NCBE has indicated that the examinees’ knowledge of the doctrinal subject matter topics, like Contracts, will be tested using these, and other, foundational skills. Bar takers will therefore be required to perform these lawyering skills as a way of proving their knowledge on topics such as contract formation, contract modification, interpretation, breach, and remedies. For the first time, in order to succeed on the bar exam, every law student will need to know how to draft and revise contract provisions.

This article discusses and dissects the content scope for the NextGen Bar Exam, outlining the areas of legal knowledge, practical skills, and abilities that will be covered. As this overview illustrates, law schools can no longer ignore contract drafting skills or relegate the teaching of contract drafting to an elective, upper-level legal writing course of 20 students or less. To facilitate incorporation of contract drafting skills into a range of courses, this article presents examples of a wide variety of in-class and out-of-class exercises and assignments along with possible assessment methods that law professors can integrate into their existing courses, whether that course is a first-year required course, an upper-level doctrinal subject-matter course, a skills course, or a clinic. This article will then present an in-depth analysis of simulated NextGen-style prompts and questions based upon a single hypothetical that allows students to complete a number of client-centered lawyering tasks. Transactional skills are finally getting the recognition they deserve. This article provides concrete guidance to ensure that law schools – and law students - are ready for it.

(Scott Fruehwald)

New Book: Brain Science for Lawyers, Judges, and Policymakers

Here is an important new book on the use of brain science in the law:

Brain Science for Lawyers, Judges, and Policymakers by Owen D. Jones, Jeffrey D. Schall, Francis X. Shen, Morris B. Hoffman, Anthony D. Wagner.

Brain science in the form of neuroscientific evidence now appears frequently in courtrooms and policy discussions alike. Many legal issues are at stake, such as how to separate the best uses of brain science information from those that are potentially biasing or misleading. It is crucial to evaluate brain science evidence in light of relevant legal standards (such as the Daubert and Frye Rules).

Brain Science for Lawyers, Judges, and Policymakers responds to this rapidly changing legal landscape, providing a user-friendly introduction to the fundamentals of neuroscience for lawyers, advocates, judges, legal academics, and policymakers. It features detailed but clear illustrations, as well as a comprehensive and accessible overview of developments in legally relevant neuroscience. Readers will learn brain science terms, how to understand and discuss brain structure and function in legally relevant contexts, and how to avoid over- or under-interpreting neuroscientific evidence.

The book begins with a survey of the kinds of litigation, legislation, and regulation where neuroscience is currently being used. It provides accessible descriptions of basic brain anatomy and brain function as well as an overview of how modern technologies can reveal the brain structures and brain functions of individuals. It finishes with cautions and limitations, including timely and thought-provoking observations about where the future of neurolaw might lead. Throughout, the authors offer clear and concise guidance on understanding both the promise and the limitations of using brain science in law and policymaking.

(Scott Fruehwald)

Should We End the Use of the Bluebook?

An Old-Fashioned Bluebook Burning by Paul A. Gowder.

Abstract

This essay argues for an end to law's infamously Byzantine and bloated citation manual, the Bluebook. The very features that make the Bluebook distinctive when compared to citation systems in other academic fields are also those that inflict vast amounts of unnecessary if not downright harmful labor on its users.

The root of the problem is its obsolescence: the Bluebook was designed for a system in which legal scholarship was primarily consumed in print and for material where the doctrinal epistemology of authority predominated.

Today, legal scholarship is primarily consumed electronically, and it largely shares an epistemology of credence with other scholarly disciplines. (Nor are its hundreds of pages of rules particularly useful for practicing lawyers and judges, who sensibly disregard most of it anyway.)

At a minimum, the signals, typographical rules, abbreviations, and cross-references need to be put out of their misery; when those are gone what is left would be practically indistinguishable from the sensible citation systems of other fields, as it should be. Also, we should automate as much as possible---and that turns out to be quite a lot.

(Scott Fruehwald)

A New Parlor Is Open: Legal Writing Faculty Must Develop Scholarship on Generative AI And Legal Writing

Here is an important new article on AI and legal scholarship by Professor Kirsten Davis:

 

A New Parlor Is Open: Legal Writing Faculty Must Develop Scholarship on Generative AI And Legal Writing

 

"As legal communication experts, legal writing faculty are well-situated to be frequent and assertive speakers in this conversation and to author scholarship that will substantially alter and define the discipline of legal writing for many years to come."

 

"[M]y goal in inviting legal writing scholars to develop the conversation about the impact of generative AI on legal writing is to establish a discursive space where scholars can explore the issues that are ripe and relevant for exploration."

 

"The training and interests of legal writing faculty are well-suited for this research."

 

"Generative AI represents the kind of revolutionary innovation that marks the beginning of a paradigm shift because it is destined to change the thinking about (at least) some of the legal writing field’s fundamental concepts and practices."

 

(Scott Fruehwald)

The Rule of Law, The Lawyer's Role as a Public Citizen, and Professional Identity: How Fostering the Development of Professional Identity Can Help Law Schools Address the Crisis Facing American Democracy by Kendall Kerew

The Rule of Law, The Lawyer's Role as a Public Citizen, and Professional Identity: How Fostering the Development of Professional Identity Can Help Law Schools Address the Crisis Facing American Democracy by Kendall Kerew.

American democracy is in crisis. The January 6, 2021, attack on the U.S. Capitol must serve as a renewed wake-up call for the legal profession. We can no longer keep our heads down, focused solely or even primarily on serving our clients, without being mindful that what we do every day as lawyers starts and ends with our duty to uphold the rule of law and our system of justice. We must acknowledge that lawyers are the ones who have put democracy at risk. Lawyers are the ones who, in their role as zealous advocates, attempted to overturn the 2020 election without a legal basis for doing so. In California, former Professor John Eastman is facing disbarment for multiple counts of seeking to mislead the court and moral turpitude (misrepresentation), and for one count of “fail[ure] to support the . . . law[] of the United States.” In her disciplinary decision, Judge Yvette D. Roland stated, “[v]igorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law.”

(Scott Fruehwald)

Preparing Law Students for Real-World Practice by John Lande

Preparing Law Students for Real-World Practice by John Lande.

Abstract

This article summarizes a program entitled Pracademically Speaking: Incorporating Real-World Legal Practice Into the Curriculum at the annual conference of the ABA Section of Dispute Resolution. It describes problems with legal curricula, pressures to improve because of the NextGen bar exam and some states’ plans to use alternative mechanisms for licensing, and successful techniques for improving the realism in law school courses. It includes links to numerous resources to help faculty make their instruction more realistic.

There are many constraints inhibiting curricular reform. But law schools can develop theories of change to overcome those constraints to improve their instruction. Doing so would benefit their students, their students’ future clients, the legal profession, and society generally.

(Scott Fruehwald)

The Importance of Professional Identity Training in Law School

With professional identity training, law schools are helping students train their own minds.

Scott Fruehwald

Marni Goldstein Caputo & Kathleen Luz, Beyond "Hard" Skills: Teaching Outward - and Inward-Facing Character-Based Skills to 1Ls in Light of ABA Standard 303(B)(3)'s Professional Identity Requirement

Marni Goldstein Caputo & Kathleen Luz, Beyond "Hard" Skills: Teaching Outward - and Inward-Facing Character-Based Skills to 1Ls in Light of ABA Standard 303(B)(3)'s Professional Identity Requirement.

Abstract
In this article, we share some ways in which we have adjusted our teaching to comply with Standard 303(b)(3) by addressing professional identity formation through the vehicles of outward-facing and inward-facing character-based skills. We believe that if law students do not intentionally start exploring their professional identities as soon as they step foot into law school, they run the risk of believing that legal education and practice are somehow separate from their inner, personal identities as lawyers when, of course, they are, and ought to be, enmeshed. By injecting skills into the 1L curriculum that force both the development and exploration of professional identity, we seek to avoid this type of fragmentation. We further believe that both inward-facing and outward facing skills are critical to helping students navigate the choices they must make as practicing attorneys. By introducing students to these skills early in their law school career, we hope we are helping to create thoughtful, empathetic, purposeful, and well-balanced lawyers, better equipped to represent their clients and thus, concurrently, providing them opportunities to consider their professional identities as they develop these skills and forecast how they might be used in practice.

Part I of this article generally defines professional identity and introduces ABA Standard 303(b)(3)’s new professional identity formation requirement. Parts II and III explain outward-facing and inward-facing character-based skills, respectively, and explore why these skills are critical for future lawyers. Part IV discusses how the Lawyering Skills classroom is the ideal place to teach these skills to 1Ls, thus beginning an education around professional identity that will span all three years of law school. Finally, Part V shares some of our strategies for incorporating these skills into our 1L curriculum.

(Scott Fruehwald)

What Is Legal Writing Scholarship? Part I: A Definition

With the 40th anniversary of the first LWI conference coming up soon, it is a good point to review how legal writing scholarship has developed over the last 40 years and what it is today.  I shall do this over a series of posts on this blog.

Legal writing scholarship has been created by its practitioners.  Perhaps, it is best to define legal writing scholarship by its bibliography, and I will discuss bibliographies of legal writing scholarship in later posts.  I will began, however, by examining a recent (provisional) definition of legal writing scholarship. 

Professor Kirsten Davis has defined legal writing scholarship as,

"Legal writing scholarship" is inter- and cross-disciplinary scholarship that is communication-centered and law-connected.  It creates knowledge by offering new information or insights about the production of, reception of, and communication environments for texts that communicate about the law.  (here)

Let's trace how Professor Davis came to this definition to see if it is convincing.  She starts from rhetoric scholar James Boyd White’s definition of "law": "law is a species of 'art by which culture and community are established, maintained, and transformed [and] has justice as its ultimate subject.'"  From this definition, she proposes that "legal writing scholarship, like law, is communication-centered."  She adds, "The phrase 'legal writing' itself centers communication as the object of study in legal writing scholarship."

Professor Davis gets the other half of the main part of her definition from legal writing scholarship's domain--the law.  "That is, to fall within the definition, the scholarship must have some connection to the production, reception, circulation, or environments of legal texts."

We now have the main part of the definition: "Legal writing scholarship is scholarship that is 1) communication-centered and 2) law-connected."

She notes that "Because legal writing scholarship involves both communication and law, it is interdisciplinary—one must integrate knowledge of both the discipline of writing and the discipline of law to produce legal writing scholarship."  She also points out that "legal writing scholarship might also have the characteristics of cross-disciplinary scholarship; that is, legal writing scholarship views the discipline of 'law' from the perspective of the discipline of 'writing,' which itself is informed by research in other disciplines like rhetoric, composition, communication, and cognitive psychology." Notably,  "Because legal writing scholarship may draw from different disciplines, those who claim to write this scholarship have the added pressure of staying abreast of developments in disciplines other than their own to ensure that a true interdisciplinary conversation is being had amongst scholars."

This brings Professor Davis to a working definition of legal writing scholarship: "'Legal writing scholarship' is inter- and cross-disciplinary scholarship that is communication-centered and law-connected."

She then looks at the question more concretely: 

"Thinking a bit more concretely, we might ask what topics fit within this definition. I think the range is fairly wide.  A
nonexclusive list of topics might include scholarship about

• how legal and other readers consume legal texts.
• how judges, lawyers, and nonlawyers write about the law.
• how legal texts persuade, influence, or accomplish other
types of tasks.
• how different media (e.g., digital media) impact written
messages about the law.
• how cultural, community, and environmental factors impact
the production and reception of legal texts."

Finally, she adds the most important ingredient: ''to be scholarship, legal writing scholarship must create knowledge. In other words, writing about legal writing, to be scholarship, must provide readers with insights or information that is new."

Based on the above, I find Professor Davis's definition of legal writing scholarship to be one that we can use to delve further into the question of what is legal scholarship.

(Scott Fruehwald)

P.S. This is a work in progress.  Comments, corrections, and suggestions are welcome.

 

 

Reciprocal Altruism as the Basis for Contract Revisited

Reciprocal Altruism as the Basis for Contract by E. Scott Fruehwald.

Behavioral Biology illuminates the basis of contract. Behavioral biologists believe that genes are selfish; they are only interested in their survival. However, reciprocal altruism - "I'll scratch your back if you scratch mine" - provides a basis for cooperation among humans that promotes survival. If two humans cooperate in obtaining and allocating resources, they will have greater resources and a greater chance to survive and reproduce, thus continuing their genes. Contract law reflects and reinforces this reciprocal altruism from our evolutionary past.

Connected with reciprocal altruism is a human instinct for equity in reciprocal exchanges. Humans can detect unfair situations and rectify them. Evolutionary fairness is reflected in the contract rules of frustration, unconscionability, and mistake, as well as the good faith duty in performance and unconscionability. Also connected with reciprocal altruism is the need to punish cheaters. In contract law, cheaters - those who breach the contract - are punished through contract remedies. Finally, contract law helps deal with the evolutionary problem of time-shifted rationality, where individuals value what they have over what they can gain in the future.

Part II of this paper will discuss traditional theories of contract law, including the objective theory of contract formation, deontological and consequentialist approaches, redistributive theories, and more recent theories by Professor Solan (contract as agreement) and Professor Markovits (contract as collaboration). Part III will introduce behavioral biology and explain reciprocal altruism and related doctrines, such as cheating and time-shifted rationality. It will also show that neuroscientific studies support the existence of reciprocal altruism and related behavioral mechanisms. Part IV will then analyze the relationship between reciprocal altruism and contract law. It will argue that reciprocal altruism is the best explanation for the formation of contracts, compare reciprocal altruism as the basis of contract to the theories discussed in Part II, examine the other necessary element for contract validity - consideration - under reciprocal altruism, and give a justification for courts to enforce contracts under reciprocal altruism. Part V will demonstrate that contract damages are the glue for reciprocal altruism and that expectation damages are the proper measure of damages under this approach. Finally, Part VI will deal with reciprocal altruism and other contract issues-gap filling, unallocated risks, good faith in performance, and unconscionability.

(Scott Fruehwald)

Whither the Monograph: Changes to the ABA Standards on Library and Information Resources and Their Unintended Consequences for Legal Scholarship by Nicholas Mignanelli

Whither the Monograph: Changes to the ABA Standards on Library and Information Resources and Their Unintended Consequences for Legal Scholarship by Nicholas Mignanelli.

Abstract

Recent actions by the American Bar Association (ABA) threaten the future of the legal monograph. Resolution 302, passed by the ABA House of Delegates at its midyear meeting in February 2024, substantially revised the standards on library and information resources by omitting any reference to a core collection and adding a corresponding interpretation that states, “[t]he appropriate mixture of collection formats . . . need not . . . include[] physical books.” This Essay argues that these changes to the ABA standards intended to clear the way for the proliferation of online law schools will have serious unintended consequences for legal scholarship, specifically by hindering access to a significant part of the corpus of legal literature at many law schools and leading to fewer publishing opportunities for legal scholars. This Essay proposes that another organization, the Association of American Law Schools, mitigate these effects by adding language to its bylaws that require member schools to continue to steward permanent collections that support scholarly research and sustain legal scholarship.

(Scott Fruehwald)

Preface: How To Teach Legal Writing

 How To Teach Legal Writing by E. Scott Fruehwald.

                                                                       Preface
                                                The Joys of Teaching Legal Writing

There is nothing more gratifying in the professional world than to watch a student
learn–to watch a light bulb go off above a student’s head. Legal writing students start the fall
semester knowing nothing about the law, and they end the year being able to write an
appellate brief and present an oral argument. This is due to legal writing teachers. Legal
writing professors start with putty, and they mold that putty into professional lawyers.

Legal writing may be the most important course students take in law school.
Professor David Thomson has declared, legal writing “has become the fundamental and
foundational course in all of law school.” It is a fundamental and foundational course, not
only because it teaches students to write documents that attorneys write every day in practice,
but because it teaches legal analysis and reasoning.

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. Most practioners receive little or no training before they start to work as
legal writing teachers. They are thrown into the pool, and they can swim or sink.

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 Ten then applies that
learning to demonstrate how you can become an expert legal writing teacher. Chapter Eleven
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.

Dedication
Dedicated to the memory of Louis J. Sirico, Jr.
A friend and a mentor.

(Scott Fruehwald)

The New Legal Ethics by W. Bradley Wendel

Here is a thought-provoking article on legal ethics.  No matter how you view the article, it will make you think about the relationship between personal values and institutional principles in legal ethics.  There are no easy answers.

The New Legal Ethics by W. Bradley Wendel.

Here is the abstract:

In stark contrast to the traditional neutral partisanship or zealous advocacy model of legal ethics, a new approach has emerged in recent years, particularly among law students, recent graduates, and lawyers who identify as politically progressive. The new legal ethics, as I refer to it, has a number of characteristics, including (1) a very strong conception of complicity for involvement in the wrongdoing of others, even if the causal contribution it makes to the wrong is insubstantial; (2) profound mistrust of institutions, systems, procedures, and chains of command; and (3) comfort with the exercise of significant discretionary power by lawyers to make moral decisions. While not entirely new – in fact, Duncan Kennedy urged law school graduates in 1986 not to represent clients who are “trying to do something terrible, and wants to use your lawyer skills to do harm” – the new legal ethics appears to be regarded by younger lawyers as the mainstream position, not a radical critique.

This paper is the published version of the 2024 Howard Lichtenstein Distinguished Professorship in Legal Ethics Lecture at Hofstra Law School. It considers the normative core of the new legal ethics, which is the strong conception of complicity. The analysis proceeds via consideration of Christopher Kutz’s Complicity Principle, which separates the evaluation of complicity from the causal contribution of an action to the harm, to the description of actions in terms of the actor’s intentions. The assessment of moral blameworthiness based on the actor’s intentions is complicated by the multiple descriptions that can be offered of the act of representing a controversial client seeking to commit allegedly wrongful acts. To make this analysis more concrete, the paper considers two case studies: One is a lawyer who violated the rules of professional conduct in order to avoid what she regarded as complicity in the client’s wrongdoing. The second is persistent public criticism of a lawyer whose actions, while consistent with the rules, are deemed by progressive critics to amount to complicity in wrongdoing.

I end up with a position inspired by Alasdair MacIntyre and Bernard Williams: A lawyer should aim at a unified life narrative that takes into account both the personal and professional dimensions of actions and intentions. In some cases a coherent narrative will include a sense of reluctance or regret arising from the moral costs of professional permissible actions. This is an implication of the traditional neutral partisanship view, properly understood. It is messier than the new legal ethics but, I believe, better accounts for the normative demands of both the lawyer’s professional role and the moral agency of actors within an institutional role.

(Scott Fruehwald)

The Unkillable Learning Styles Myth by Michael Blasie

Here is an excellent article on the learning styles myth:

The Unkillable Learning Styles Myth by Michael Blasie :: SSRN

"Is it time to kill the Learning Styles Myth in law school classrooms? The article details the absence of scientific or empirical evidence supporting the utility of learning styles but then layers in the classroom realities of personalities and student dynamics to suggest how professors can effectively empower students to learn in any mode."

(Scott Fruehwald)

The Book Students Should Read Before Law School

Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals by E. Scott Fruehwald.

 

Law students need to start with the cognitive basics in order to develop into expert legal thinkers and writers. The early chapters of this book deal individually with the five types of legal reasoning--rule-based reasoning (deductive reasoning), reasoning by analogy, distinguishing cases and arguments, synthesizing rules (inductive reasoning), and policy-based reasoning, using self-correcting exercises.  Later chapters show how the five types of reasoning relate to the small-scale paradigm (how to organize a simple analysis) and how they can be used in legal problem solving.

 

Chapter One introduces the five types of legal reasoning. Chapter Two teaches students how to be critical and engaged readers and analyze cases, skills that they will need before they can learn the other miniskills in detail. Chapter Three concerns reasoning by analogy, which involves showing how a case is like a precedent case. Chapter Four examines rule-based reasoning, and how to apply rules to facts. Chapter Five involves synthesizing cases into rules, which is an important skill in establishing the law. Chapter Six investigates statutory interpretation. Chapter Seven brings the prior chapters together, by demonstrating how the different types of legal reasoning are fundamental to the small-scale paradigm. Chapter Eight fills in this paradigm by examining how to respond to opposing arguments and distinguish cases. Finally, Chapter Nine serves as a capstone to this book with its presentation of advanced problem solving and creative thinking. The appendices cover how the American legal system developed and canons of statutory construction.

 

One of the purposes of this book is to allow law students to learn legal skills independently. I want students to be able to get immediate feedback on their learning. Consequently, I have put answers to the exercises at the end of each chapter.

 

(Scott Fruehwald)

 

 

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

Thanks to the Canadian Centre for Professional Legal Education for recommending my post Learning How to Distinguish Cases: A Basic Skill for Lawyers and Law Students.  There have been hundreds of downloads over the last few days.

This post is from a chapter from my book Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (2nd ed.).  This chapter contains much more detail on distinguishing cases, and it includes many exercises to help you practice this skill.  The book also has chapters on reading critically, rule-based reasoning, analogical reasoning, rule synthesis, policy-based reasoning, statutory analysis, writing your analysis, and problem solving.  These chapters have lots of exercises. too.

(Scott Fruehwald)
  

 

First-Year Torts Supplement Helps Students Prepare for NextGen Bar Exam

The Next Generation Bar Exam will debut in July 2026.  This new exam will test a broad range of foundational skills.  "The NextGen exam will have fewer stand-alone multiple-choice questions, and the traditional essay questions will be replaced with integrated question sets, requiring students to read and apply primary legal and factual resources to certain fact patterns under time pressure."

Law schools will need to develop new approaches to help their students prepare for the exam.  As it turns out, I have already published a book for first-year students that can help them prepare for the new type of testing:

A Companion to Torts: Learning to Think Like a Torts Lawyer by Doing Exercises

I believe that my book will help students get accustomed to the new kinds of thinking they will need for the new exam.  My book begins with simple exercises and gradually works up to more challenging ones.  In the early chapters, exercises cover issue spotting, application of the law to the facts, retrieval exercises, and simple problem solving.  These chapters also introduce the five types of legal reasoning--rule-based reasoning, reasoning by analogy, distinguishing cases, rule synthesis, and policy-based arguments.  Later chapters add drafting complaints and more complicated problem solving.  One chapter is devoted to a single products liability problem.  The types of exercises include multiple choice, integrated question sets, short answer, extended answer, reflection questions, and metacognitive questions.  Answers appear at the end of each chapter.

(Scott Fruehwald)