Sunday, September 28, 2014
Last week, I mentioned that California's new fifteen-hour experiential requirement would have a big impact on legal education in America. This impact, of course, will mainly be on the second- and third-years of law school. The first year of law school also needs to be reformed to help students prepare for the experiential classes and for contemporary legal practice.
Doctrine and "thinking like a lawyer" have traditionally been the focus of the first year of law school, and they should continue to be important in a reformed first year. Law schools must teach students substance and methods of analysis before they can start to work in a practical setting. However, law schools need to teach doctrine and thinking like a lawyer better.
Law schools need to teach students doctrine and legal reasoning with teaching techniques in addition to the Socratic/case method. I believe that the Socratic/case method, when used properly, is an important technique for teaching law students legal reasoning. However, this method does not go far enough.
First, the teaching of legal reasoning should be more explicit and go into more detail. Many law students graduate from law school not understanding what think like a lawyer actually means. First-year professors should teach law students the sub-elements of legal reasoning, explicitly and in detail. These miniskills include rule-based reasoning (deductive reasoning), analogical reasoning, case synthesis, distinguishing cases, and policy-based reasoning. In particular, students have problems synthesizing cases. Professors need to drill students in these skills just like they drill students in case analysis.
Second, law schools need to teach statutory analysis in detail in the first year. Statutory analysis is as important (or even more important) for the contemporary lawyer as case analysis.
Third, first-year courses should teach law students how to apply doctrine to facts. This will help them remember the doctrine better and develop transfer skills for second- and third-year courses. Initially, these application exercises can be simple.
1. John walks up to an attractive woman in a bar, and he starts to talk to her. Her boyfriend then hits John in the mouth, and John is hurt. Has a tort occurred? If so, which one?
2. John walks up to an attractive woman in a bar, and he starts to talk to her. Her boyfriend takes a swing at John, but he barely misses his head. Has a tort occurred? If so, which one?
3. John is pushed into Sam by Roy accidentally. Sam is badly hurt. Can Sam sue John for an intentional tort?
4. John, 20, wants to play a joke on his grandfather, who walks with a cane. While his grandfather is taking a walk, John pulls the cane away from his grandfather. The grandfather falls and breaks his hip. Can the grandfather sue John for an intentional tort?
5. John is speeding down the road in his brand new car. He is going 20 miles over the speed limit, and he is not stopping for stop signs. He hits Mason’s car, causing him severe injury. Can Mason sue John for battery?
1. The way to answer this question is to think about all the potential torts, then see if the facts fit the elements of any of those torts. In this case, the facts constitute battery.
2. This is an assault. There was no harmful or offensive contact, but there was apprehension of harmful or offensive contact.
3. No. Intentional torts require that the conduct be intentional. John did not intentionally contact Sam.
4. Yes, this is a battery. There are two subissues here. The first is whether a joke can constitute a harmful or offensive touching. The answer is yes. The second question is whether there has to be an actual touching or can the contact be made with an object that is in contact with a person. The answer is a contact can occur by an object that is in contact with the person. You probably read a case on this in your torts casebook.
5. No. John didn’t intend to make a harmful or offensive touching with Mason. However, as we will see later, this could be negligence.
Wouldn't students remember significantly more torts doctrine if they had to answer fifty questions like the above at the end of every torts unit?
As the year goes on, the problems for students to solve would become more complicated.
Fourth, students should draft simple documents when appropriate. They could draft contract clauses after a unit on that type of clause. They could draft a simple deed or lease in property. They could draft a complaint in civil procedure. Again, students remember more when they apply their knowledge.
Finally, first-year classes should teach law students metacognitive skills. (here) They should be taught how to think about their thinking, choose strategies, how to learn properly, how to reflect, etc.
Adding the above to first-year classes would significantly improve law students ability to understand doctrine, remember doctrine, and use that doctrine. Later in the week, I will discuss how the above might be implemented.