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Tuesday, September 09, 2008

The Case Free Class Day Experiment (Proposal)

I’ve been hoping for some time now to conduct the pedagogical experiment described below. But, as I haven’t had the chance to do so yet, I thought I’d just sketch the plan and see if any of you had words of wisdom or warning.

The idea is that I’d teach a class three days a week, but we’d only read cases (or statutes or other legal source materials) for the first two of those days. On the third class day of each week, we’d stop dissecting the cases they’ve read for the week and instead turn our attention to a somewhat different task: applying the holdings and legal rules we’ve learned up to that point in the class to hypothetical fact patterns (of the sort students will see on the final exam). So, for example, when we cover speech in public schools or government employment in Con Law II, students would come to the first two classes of the week prepared to discuss and analyze the major cases on that subject (Tinker, Hazelwood, Morse, Pickering, Connick, Ceballos, etc). But on Day 3, students wouldn’t have any new cases to read. Their homework would instead consist of analyzing (and perhaps preparing written analyses) of hypos (1) some of which challenge them to draw upon only the newest material we’ve read (on school and employee speech) and (2) others of which raise issues from earlier in the class – like an Equal Protection Clause question or perhaps a First Amendment “low value” speech question.

Why try this? For one thing, while I loved my law school education, I always wondered why – if exam hypos are good tests of how well we’ve honed our legal reasoning skills – why we don’t spend weeks practicing with such hypos (and discussing them in class) before we face them on exam day. Professors would sometimes fire a hypo or two at us during class discussion. But that’s not quite the same as being given a complex fact pattern in writing ahead of time and being asked to analyze it carefully. Second, I wonder if students would be able to focus more carefully on what makes for a solid legal analysis of such a hypo if they could – for one day each week – clear everything else off the table and focus for a day **entirely** on solving legal problems instead of absorbing new material. One thing I’ve found as a teacher is that when students have new cases in front of them, their focus is naturally on reading, memorizing, and understanding these cases. The subsequent task of applying those new holdings to unfamiliar scenarios tends to be postponed until later in their study time, and they sometimes never get to it before class. Finally, to the extent at least some hypos raise issues from earlier in the semester, they might give students a chance to practice (and teachers a chance to provide guidance) in a skill that otherwise likely gets short shrift during the semester – namely, issue spotting. After all, in a typical (non-experimental) Con Law II class, students don’t have to guess to much about the issues we’ll be covering on a particular day: When the syllabus says we’re covering school speech, and the casebook readings for the day are from the section entitled “school speech,” chances are the issues we’re looking have will have a lot to do with school speech. The issue-spotting challenge is more significant, of course, in an exam fact pattern where the whole class is fair game. So why not give students challenges of this sort to practice with throughout the semester?

That’s the logic. The major down side I can think of is that 2 out of 3 classes a week not be enough time to cover all we have to cover (especially in Con Law II). I suppose there’s also the question of where to get a good supply of suitable hypothetical fact patterns – one that will fill 1/3 of the entire semester. Not many casebooks are geared to this approach (although there are certainly a few with lots of hypotheticals to practice on), but I suspect if there was enough demand, someone in the world of legal education will meet it (and to some extent, certain legal aid series, like the Examples & Explanations series, already do). While I haven’t yet had the time to set aside class periods for “case free” days (I’ve typically taught twice a week, not three times a week), I did regularly create and distribute hypothetical fact patterns to think about ahead of time the last time I taught Con Law II, and found that this wasn’t unduly burdensome. Has anybody actually conducted this kind of experiment, or some variation on it?

Posted by Marc Blitz on September 9, 2008 at 11:07 AM in Teaching Law | Permalink

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Comments

I have been moving toward this approach and have been meaning to more fully implement it.

I give quizzes and midterms to give students extra practice applying and analogizing from casebook materials to new fact patterns. I also do this in class by using hypos and cases from casebooks that I am not using. This works fine for Torts and Bus Orgs where there are more than 10 casebooks on the market. It is harder for Health Law where there are only 2 casebooks which use many of the same cases.

Posted by: Thaddeus Pope | Sep 17, 2008 11:38:05 AM

There's also the flip side of the situation. When I took Crim Pro some time back, the professor (a deity of search-and-seizure law) used his own book... but structured all class discussion around a set of 60 relatively short hypotheticals that were included with the syllabus. Some of the hypotheticals concentrated on single cases, but most required assimilating several cases and previously covered material. It seemed to work well.

Posted by: C.E. Petit | Sep 10, 2008 10:16:09 AM

I'm amazed you don't teach those hypos/examples in each and every class

Posted by: anon | Sep 10, 2008 7:23:07 AM

Thanks for these comments. I'm happy I asked for your thoughts before trying this. If any of you can suggest any other casebooks (or other texts) you think would fit well with this approach -- particularly in constitutional law -- I'd welcome recommendations. Thanks!

Posted by: Marc Blitz | Sep 9, 2008 8:11:58 PM

Sounds great, Marc. I'm sort of trying a version of that this semester in 1L Torts by using a casebook (Henderson et al, The Torts Process) that has really "thick" problems -- for the first few weeks, we've spent most of time on cases. But we'll start spending most of the time on problems.

In Employment Law, I already do this to a certain extent, and am thinking about abandoning the casebook entirely, and just asking them to buy the little "Concepts and Insights" paperback from Foundation Press, and then using Doug Leslie's (UVA) Casefile Method (West) for each class. Casefile Method essentially does everyday what you do on that third day (though I don't know that they've done it for Con Law).

I also agree with Larry Rosenthal's comment more or less 100%.

Posted by: Jason Solomon | Sep 9, 2008 2:46:39 PM

Right you are Hillel. What I should have said is that interpretation can be a dry subject unless it's in the hands of a professor who allows students to appreciate that it can be quite artful. My apologies for the unintended dis--I'm working for a legislature so I ought to know better. I am glad to hear how your class room work is building student skills as to a key piece in the lawyers' toolbox.

Best,
Charlie

Posted by: Charlie Martel | Sep 9, 2008 1:59:14 PM

I am teaching a Legislation/Statutory Interpretation class. (Far from being dry, it's a great deal of fun!) We're starting with theories of interpretation, but I'm trying to have them see how the theories play out in practice. The next set of units are on the nuts and bolds of interpretation. Then, for the final unit--2 to 4 weeks, depending--I will bring in some difficult cases that they aren't familiar with, and work through them. My idea is to do the first problem as a group; the second in smaller groups of 4-5 students; and the third individually (and then we'll come together to talk about it). The exam will basically replicate that experience.

So you might think of doing it this way, rather than devoting a class to it every day. The benefit is that it gives them all of the tools they need to solve a complicated problem; and it also helps them to prepare for the exam. Additionally, it doesn't require you to eat up 1/3d of the class or find a million little problems to have them do.

I have told my students that this is the plan, and the feedback so far has been good.

Posted by: Hillel Levin | Sep 9, 2008 1:33:03 PM

Hi Marc--I like your idea a lot, having studied in an LLM program in which we did a lot of application of principals to hypotheticals. Having practiced for some time before the LLM, I thought the use of hypotheticals was great because it mirrors what most lawyers do with the law. It's great training for exams and for practice in thinking like a lawyer. I also found that students were much more engaged in hypothetical exercises than in traditional case studies.

I tried a bit of hypo as an adjunct in a legal writing program on some pretty dry stuff--statutory interpretation. I thought it worked well and helped me show the class how this can involve both literalism and creativity, and that both stem from disciplined analysis.

I hope your idea catches on.

Best,
Charlie

Posted by: Charlie Martel | Sep 9, 2008 11:31:22 AM

For those of us who teach using the problem method, this is the way we approach most classes. I typically give students a fact-intensive problem or two for each class, and we spend most of our time dissecting it. The applicable case or statutory law is discussed only to the extent it sheds light on the problem.

My starting premise is that perhaps controversial notion that law school is preprofessional eduction. Students spend all that time and money to obtain a marketable skill. The skill that is marketable, however, is not analysis of appellate opinions. Clients have concrete and generally fact-intensive problems on which they need legal advice, not simply a desire to have appellate opinions analyzed. Yet, law school spends remarkably little time developing this skill (except on the final exams, where it all of the sudden becomes important). To make it in practice, students will need the ability to develop a position on behalf of a client that withstands critical scrutiny. Case law and statutory law must be analyzed in order to develop that position, but only as a means to this end. For this reason, I find the problem method a much better way of imparting the critical skills that students will need than the traditional case method.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Sep 9, 2008 11:29:24 AM

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