Friday, June 26, 2015

Deborah Jo Merritt on the Limitations of the "Appellate Classroom" and the Importance of Experiential Education

As I have often stated on this blog, experiential education helps doctrinal learning because it is active learning that reinforces long-term memory and the ability to use knowledge.  Professor Deborah Jo Merritt has recently pointed out the limits of traditional law teaching in the "Appellate Classroom" and emphasized the need to combine the traditional approach with experiential teaching.

The Law School Cafe: The Appellate Classroom

Professor Merritt points out the limitations of the traditional approach: "Our doctrinal courses thus give students repeated practice for appellate lawyering. Their raw materials are appellate cases, and classroom discussion resembles oral argument. The legal reasoning conducted in doctrinal classes consists of reconciling precedents and applying them to new fact patterns."

She asserts that "It’s essential to recognize these facts about doctrinal classes as law schools embrace more experiential types of learning. Many types of experiential learning aid doctrinal understanding; I use simulations and other exercises in my Evidence course for just that purpose."

She goes further: "Most of these exercises, however, do not redress the appellate tilt in our classrooms. We need much more fundamental shifts in doctrinal courses to accomplish that. Alternatively, we need to expand the time devoted to simulations and clinics that focus on lawyering outside the appellate practice."

She concludes, "Very few law school graduates find work as appellate lawyers. Most clients need other types of assistance. In order to serve both those students and their clients, legal educators need to reduce the dominance of appellate lawyering in our curriculum. How do lawyers use doctrine and interact with client[s] outside of that setting? That question lies at the root of constructive pedagogic change."

(Scott Fruehwald)

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This must be the only place left where a Merritt post won't be shredded by more informed and sharper people (because you guys don't permit dissent from the party line). Simkovic routinely pokes holes in her employment arguments in his posts on Leiter's blog, for example, and Steve Diamond does the same with her curricular arguments on his blog, to the point where Merritt is now just another sad, disaffected version of Paul Campos. The "appellate lawyering" argument she makes in this article is straight out of the sixties. Moot court might prepare law students for appellate lawyering, but the rest of law school teaches people to think in all different contexts. I feel bad for Ohio State (and Colorado, where Campos teaches). It's a great place, with an excellent faculty and it has to be a little embarrassed by Merritt's rants.

Posted by: Pushkin | Jun 26, 2015 3:51:56 PM

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