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May 23, 2012


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Erik Girvan

Great idea to following up with top performers. You may be interested in Gentner, Loewenstein, & Thomson (2003) ( Aside from reviewing literature on the strengths and weaknesses of the case method (broadly as used in professional schools), they report experimental research suggesting that prompting students to compare cases is good for teaching a general principle but explicitly stating the principle and then providing guidance about how it ties the cases together is better in terms of learning, retention, and the ability to apply the principle later in novel situations. The relative disadvantage of asking students to derive the rule relates to the way memory works -- students working through the cases first will inadvertently link the general principle they derive to specific features of the situations in the cases. This interferes with their ability to recall relevant rules later in application to any situation that lacks those features. Worth a read anyway.

Orin Kerr

This is just a matter of opinion, of course, but in my view, the student is right. The most reliable way to gain a deep understanding of an area of law is to understand the easy and clear parts first, and then to get into the details and explore the ambiguities and uncertainties. If you start with a clear presentation of the overall framework, you're laying down the foundation: You can then go into the cases and explore the ambiguities and uncertainties. On the other hand, if you start with the cases without any context, students have no idea what the context is and they can flail about trying to relate the ambiguities and uncertainties to *some* sort of framework. The key question is whether the flailing about is a necessary and important learning process or is just wasted time grasping for context. I tend to think it's more the latter than the former. As a result, I think the most effective way to teach is to start with that foundation and then use that as a jumping off point to get a deeper understanding. That's my view, anyway -- I don't think there is a right or wrong answer.

Joseph Tomain

Thank you for feedback, Erik and Orin.

Perhaps in the Fall, I will experiment with this approach on some units. I believe I provide some framework for each unit by emphasizing chapter and sub-chapter titles as a way to understand what we are covering, but am sure I could expand on this step to provide a deeper framework.

As far as a rules-first approach, do you go so far as stating the holding of a case before asking the students to contribute to the discussion?


Orin Kerr

I don't cover the holding of the case; I just give the framework for the legal doctrine. For example, say the topic for the day is the elements of common law murder. I tell them the elements of common law murder, and why it matters what the elements are (that is, what the sentences are for murder versus manslaughter). I then tell them that the really tricky issue is what "malice aforethought" mean. It's a common law term that has evolved over time and been subject to many creative interpretations, so it's the most important concept to grasp. With that summary over, we then go into Socratic mode for the case on what "malice aforethought" means. We then go through in traditional Socratic style going through the facts and reasoning, all trying to figure out what malice aforethought means according to that court. (That's just one example, of course, and maybe not a good one.)

Joseph Tomain

That helps, Orin. Thank you. I will try this out next semester.

Heidi R. Anderson

I do what Orin describes, too, primarily for concepts that students tend to think are difficult. For example, when I teach the statute of frauds, I give a brief lecture about what kinds of agreements are subject to the statute, such as those that cannot be completed within a year. Then, I call on a student or two to walk through the case that focuses on whether a contract can be completed in a year. Students always are surprised to see that something seemingly straightforward--i.e., the one year concept--can be rather complicated. If I hadn't already covered the basic rule before the case, I think it would hurt the depth of the argument-based discussion.

Sometimes, when I'm trying to be practically-focused, I say it like this: "Clients don't pay you to find the rule. They pay you to argue that the rule does or does not apply to them. So, we're going to focus on that." Of course, from a purely selfish standpoint, what I'm really thinking is..."The rules are boring so let's get through them quickly so we can get to the arguments, which are way more fun (for me)."

Erik Girvan

Joe, My teaching experience is in research methods and psychology but the approach I have used follows a similar pattern as that described by Orin and Heidi: lay some foundation and articulate the general principle, then use examples to get students to apply it and, in doing so, reinforce the principle and illuminate its contours. Depending on the legal topic, I imagine the Restatements may be helpful with the first part and cases with the second. In any event, I will be trying a similar approach with Civ. Pro. this fall and am interested to see how it goes.

Michael J.Z. Mannheimer


The student's answer to question #6 is something I see in my student evals all the time, and your response is, in my opinion, spot on. I have the advantage of being married to someone with a Ph.D. in Education. I do not pretend to be an expert in learning theory by any stretch of the imagination but I have picked up a few things from her. One thing I have learned is that a constructivist model of teaching, where the instructor requires students to construct knowledge BEFORE being told the rules or procedures, is better at forming long-term problem-solving skills than the objectivist model, where the instructor teaches the students the rules or procedures and then asks them to apply them. The latter works well for repetitive tasks: essentially, if a student has to apply the same formula to different data. But the former works better for instructing students how to apply knowledge to new situations, which, to my mind, is what law school is all about.

Joseph Tomain

Thank you to all for your comments! The more I think about it, I do some of the techniques suggested here.

In Media Law, I provide the list of defamation elements at the beginning of that unit. Then, over a couple of weeks, we work through sets of cases and notes on each element. In Contracts, this approach works for some topics, such as the elements of a promissory estoppel claim. But, thus far, I have found that the variation among state laws combined with common law developments makes it difficult to start with a "rule" for many areas.

I like having the students show me what they know or understand before I provide the comfort of a "right" answer because it helps me gauge whether the students are learning the material. I also focus on repetition and review. At the beginning of each class, I do a 5-12 minute review of key themes from the prior class.

While I do not expect to make dramatic changes to my methodology on this point, I plan on making a conscious effort to try this out on some units or rules. I focus a lot on repetition and review. I can improve my framing of the topic at the beginning of a unit or rule.

Enjoy the day!

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