THE CASE METHOD OF LAW TEACHING

1. THE CASE METHOD OF LAW TEACHING Unit 18

2. Preview • Definition • Origins • Casebooks • Socratic method • Assignments • Progress • Results

3. Definition • The primary method of teaching law in law schools in the United States based on the principle that the best way to learn American law (due to its common law origin) is to analyze the actual judicial opinions which become binding under the rule of stare decisis

4. History • The American coloniestookovertheEnglishmethodoftraininglawprofessionals • InEngland, lawyersweretrainedbylawyers; no universityeducationwasrequired; qualification to practicelaw – based on a kindofapprenticeship, wherebythecandidate “read” law for severalyearsintheoffices or chambersof a practicinglawyer

5. History • Throughout 19th c., dominantmethodsoflearninglaw – apprenticeshipfollowedbycomprehensive bar examinations, all administeredbythe legal professionwithoutanyconnection to theformaluniversityestablishment

6. History • HarvardUniversity – chartered in 1636 • Lawfacultyestablishedin 1817 • Theearliest US lawschools – foundedbylawyers, who gavelectures to lawaspirants • Graduallythrough 19th c. most universitiesfoundedtheirlawschools

7. Today • All American statesrequirelawschooleducation as a prerequisite for admission to practicelaw • Am. legal education – post-graduate • Previousuniversitystudyleading to a B.A. or B.S. requiredbefore a personcanbeginthestudyoflaw

8. The American lawschool • No national universities • Education – a state responsibility • Distinguishedlawschools: Chicago, Columbia, Harvard, Stanford, Yale

9. The American lawschool • Admission: competitive, based on scoresonthe national LawSchoolAptitude Test, undergraduateacademicrecord, prior work achievement, etc. • Averageannualtuition: 55 000 $

10. TheLawschoolcurriculum • Since 1900 – 1st degreeinlaw, originallycalledLL.B. (LegumBaccalaureus=BachelorofLaws) but today more commonlyJ.D. (JurisDoctor): 3 yearsofinstruction

11. 1st yearcurriculum • Contracts, property, tort, civil procedure, criminallaw • Some schools: constitutionallaw, legal philosophy, administrativelaw • Mootcourts

12. Curriculum • After 1st year, students are free to selectthecoursestheywishtostudy • Optionalsubjects: commerciallaw, corporationlaw, anti-trust law, evidence, federaltaxation, laborlaw, privateinternationallaw, familylaw, lawofinheritance, trusts, insurance andmaritimelaw, legal history, comparativelaw, publicinternationallaw

13. Curriculum • Examinations: written; questionsthatrequirethe student to analyze more or lesscomplicatedfactsfromtheperspectiveof a lawyer, ajudge, or a legislatordraftingalaw • Grading – anonymous • Veryfewstudentsfail 3rd yearpaper must becompletedbefore a student cangraduate

14. Methodsoflawteaching • Originally, instruction at American lawschoolsproceededalonglinessimilar to thosetraditionalin Europe • Thesubjectmatter – presented ex-cathedra

15. Origins • Until 1870’s, no American law school used the case method, which is now standard • Introduced by Christopher Columbus Langdell, American jurist and professor of law at Harvard University • Selection of Cases on the Law of Contracts (1871), the first book used in the case system

16. Casebooks • Collections of best cases concerning a particular area of law; leading opinions of English and American courts in a certain area of law, presented in a logical sequence to be followed in the classroom

17. Casemethod • Oncecasebookswereavailable, thenextstepwas to analyzewithstudentsthecasesthey had readbeforeeachclass • discussion

18. Socratic Method • A student has to answer about a central argument put forth by one of the judges in an assigned case • The first step – to paraphrase the argument • The next – whether the student agrees • The student has to defend his or her position • Subsequent questions challenge the student’s assumptions • Further questions move the student toward greater specificity, either in understanding a rule of law or a particular case • The method allows students to come to legal principles on their own through carefully worded questions

19. The Goal of Socratic Method • Typically, there is more than one “correct” answer, or no clear answer at all • The goal: to explore difficult legal issues and to teach students the critical thinking skills they will need as lawyers • Students should go beyond memorizing the facts of a case and instead focus on application of legal rules to facts • Judges’ decisions: based on certain premises, belief, and conclusions that are the subject of legitimate argument

20. Assignments • Students are expected to be prepared for class in advance by reading the assigned materials (case opinions, notes, law review articles, etc.) and by familiarizing themselves with the general outlines of the subject matter

21. Progress • The student has to review the cases analysed in class • From these materials, he tries to construct an orderly statement of the legal rules and principles in the course’s field

22. Results • The student learns the main rules and principles developed by courts • Learns how to work with legal source materials, relate legal doctrines to facts and facts to doctrine

23. Declineinpopularity • Exclusive reliance on a discussionmethodmayleavethe student uncertainaboutimportant legal rules, practices, andinstitutions • Muchofwhat is required for a full legal culturecanbeobtainedbyreading or hearingsystematicpresentations

24. Clinical legal education • Twoforms: in one, students are presentedwith a simulatedfactualsituationandasked to developevidence, givecounsel, andtakeappropriateproceduralsteps

25. Clinical legal education • goal: to exposestudentstotherealitiesoflawpracticein a controlledcontext; simulatedworkshopcoursesintrialadvocacy, negotiation, federallitigation, etc. • Critiquefromexperiencedpractitioners who assistintheinstruction on a part-time or volunteerbasis

26. Clinical legal education • Theotherform: studentsengageinactuallawpractice, representingclientsindomesticrelations, housing, benefitsandothercontestedmatters, underthesupervisionofexperiencedlawyers who serve as clinicalinstructors

27. Lawreview • Theoldest Am. Lawreview – Harvard, establishedbystudentsin 1877 • Lawstudents do theediting • Leadarticles – selectedby student editorsfromamongmanuscriptssubmittedby legal scholarsandlawyers

28. Lawreviews • Eachissuealsoincludes student writing, usuallyintheformof a treatmentofanareaofthelaw or a focuseddiscussionofarecentdecision or legislation • These student-editedjournalshavelongbeenthe most important American professional legal periodicals

29. Summary • Case method: • 1. requires students to work with primary source material • 2. A typical American law school class is a dialogue about the meaning of a case, not a straightforward lecture

30. Put the verbs in brackets into appropriate forms • CHRISTOPHER COLUMBUS LANGDELL, a law professor, often ___(receive) credit for ____(invent) the case method although historians ___(find) evidence that others ___(teach) by this method before him. Regardless, Langdell by all accounts ___(popularize) the case method.

31. Key • CHRISTOPHER COLUMBUS LANGDELL, a law professor, often receives credit for inventing the case method although historians have found evidence that others were teaching by this method before him. Regardless, Langdell by all accounts popularized the case method.

32. case, interpreted, judicial law, prevalent • Langdell's beliefs differed from those of his ___ professor colleagues. Throughout the 1800s, the ___approach for teaching law school classes was the lecture method. Although professors and textbooks ____ the meaning of various court decisions, they did not offer a significant opportunity for students to do so on their own. The ____method, on the other hand, forced students to read, analyze, and interpret cases themselves. It was Langdell's opinion that law students would be better educated if they were asked to reach their own conclusions about the meaning of ___decisions.

33. Key • Langdell's beliefs differed from those of his law professor colleagues. Throughout the 1800s, the prevalent approach for teaching law school classes was the lecture method. Although professors and textbooks interpreted the meaning of various court decisions, they did not offer a significant opportunity for students to do so on their own. The case method, on the other hand, forced students to read, analyze, and interpret cases themselves. It was Langdell's opinion that law students would be better educated if they were asked to reach their own conclusions about the meaning of judicial decisions.

34. At first, Langdell's ideas _____(reject, passive) by students, other law professors, and attorneys alike. These critics ___(view) the case method as chaotic compared with organized lectures. They ___(believe) that instead of soliciting law students' opinions regarding cases, professors should simply state their own interpretations. Law students, afraid that they were not learning from Langdell's method, ____(drop) out of his class, leaving him with only a few pupils. Enrollment in the Harvard Law School ___(decrease) dramatically because of concern over Langdell's case method and alumni ___(call) for his dismissal.

35. Key • Langdell's ideas were, at first, overwhelmingly rejected by students, other law professors, and attorneys alike. These critics viewed the case method as chaotic compared with organized lectures. They believed that instead of soliciting law students' opinions regarding cases, professors should simply state their own interpretations. Law students, afraid that they were not learning from Langdell's method, dropped out of his class, leaving him with only a few pupils. Enrollment in the Harvard Law School decreased dramatically because of concern over Langdell's case method and alumni called for his dismissal.

36. attorneys, backing, dean, dominant, instruction replaced • But the president of Harvard University, Charles W. Eliot, supported Langdell and his case method. This ____allowed Langdell to withstand the criticism long enough to prove the case method's success: Langdell's students were becoming capable, skilled ___. In 1870 Langdell became law school___. As time passed he __his critics on the Harvard faculty with professors who believed in his system of teaching and the case method soon became the ___ teaching method at Harvard. Other U.S. law schools took note. By the early 1900s, most had adopted the case method, and it remained the primary method of legal ___throughout the twentieth century and beyond.

37. critical, facts, insight, irrelevant,respond, Socratic • The case method is usuallycombined with a type of classroom teaching called the ___method. Through the Socratic method students orally ___ to an often difficult series of questions designed to help them gain further ___ into the meaning of the law. Students learn the skill of ___analysis this way: they learn to discern relevant from ___facts; they learn to distinguish between seemingly similar facts and issues; and they learn to analogize between dissimilar ___and issues.

38. The case method is usuallycombined with a type of classroom teaching called the Socratic method. Through the Socratic method students orally respond to an often difficult series of questions designed to help them gain further insight into the meaning of the law. Students learn the skill of critical analysis this way: they learn to discern relevant from irrelevant facts; they learn to distinguish between seemingly similar facts and issues; and they learn to analogize between dissimilar facts and issues.

39. Reference or Substitution Words • Words and sentences are related to each other in the text so that there is clear identity between what is being said and what has been said. This identity is signalled by reference and substitution words • Reference: anaphoric (pointing back) and cataphoric (pointing forward) in discourse

40. Types of Reference Words • 1) Third person pronouns (Students attempt to summarize the argument while it is in progress) • 2) One (replaces nouns): Which method have you chosen? The one which was presented last week. • 3) This, that, these, those (replaces nouns, groups of words or sentences): (He is trying to analyze the assigned case. This can be a difficult task) • 4) There, then (replace adverbials of place and time) (He studied at Harvard. He got acquainted with the case method there). • 5) Such + noun (replaces the description of the person or thing named by the noun): This method may vary in complexity and procedure. Such variations, however, are of minor importance.

41. Discourse reference: Sentence/clause reference • Anaphoric and cataphoric: here, it, this • Anaphoric: that, the foregoing • Cataphoric: as follows, the following, thus

42. Anaphoric examples • Students want to be shown connections between facts instead of spending their time memorizing dates and formulas. Reflecting this, the university is moving away from large survey courses and breaking down academic fences in order to show subjects relating to one another • Many students never improve. They get no advice and therefore they keep repeating the same mistakes. It’s a terrible shame.

43. Cataphoric examples • This should interest you, if you are still keen on becoming a good lawyer. I’ve heard of an interesting case involving intellectual property rights... • Here is the news. A diplomat was kidnapped last night...

44. Casemethodinstruction

45. Defendyouropinionaboutthecasemethodinstruction • Yes, but what I reallymean is… • What I want to say is… • I feelthat… • On thecontrary…

46. Howwouldyoudescribe a person who is: • Tough-minded • Skeptical • Pragmatic • Resourceful