Posted by Eugene Volokh:
The Pedagogical Goals of Law School Classes:
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1249858402
Here are some materials I put together for my first-semester torts
students, aimed at explaining some things that students often find
mystifying and frustrating about law school (such as, why aren't we
just learning the rules?). My thinking is that students are generally
happier if they understand that we have good reasons for certain
pedagogical choices, and that they often accept the validity of those
choices once we tell them what the reasons are. Maybe I'm living in a
fool's paradise on this, but that's been my sense from when I've done
this before.
I thought I'd also pass these thoughts along here, in case some of you
find them interesting. And if you have some more items along these
lines that you think first-year students would find helpful, please do
mention them.
* * *
What will you be asked to learn in the next three years, and in this
class in particular?
1. The Law: Many class sessions -- both in torts and in other classes
-- will be spent learning particular legal rules. And these rules may
well prove useful in your future practice, even if you don�t become
what most people think of as a �tort lawyer,� which is to say someone
who does personal injury law. Lots of business litigation involves
torts, such as misrepresentation, interference with business
relations, trade libel, and the like. And many of the concepts from
traditional personal injury torts cases apply to business torts cases
as well.
2. Concepts: A second answer is basic legal concepts, reusable modules
that come up in many contexts: negligence, causation, joint liability,
mental state, and the like. You�ll see them again in criminal law, in
First Amendment law, in the law of copyright damages and contributory
infringement, and elsewhere.
3. Skills: You will also be learning legal skills.
a. Reading cases: One important skill is reading cases. This is what
you need to do to figure out what the rules are. We can teach you
California tort law as it is in 2009; but what if you need to give
legal advice ten years from now, in another state, about some subject
matter you never studied in law school (for instance, employee
benefits law)? Learning the skill of reading cases is therefore more
important that just learning the rules.
Moreover, even if you think you know the rule, you�ll need to read the
cases to figure out what the elements of the rule really mean in a
particular situation. We can teach you that the tort of �disclosure of
private facts� consists of �giv[ing] publicity to a matter concerning
the private life of another ... if the matter publicized is of a kind
that (a) would be highly offensive to a reasonable person, and (b) is
not of legitimate concern to the public.� But what do those terms
actually mean? Would, for instance, an 11-year-old girl�s giving birth
to a child be �of legitimate concern to the public�? You can only
answer the question by looking at how cases have interpreted the vague
�legitimate concern� language.
And you�ll need to read the cases to figure out how best to argue in
the direction that your client needs you to argue. Sometimes there
might not be a clear answer given by the cases. You�ll therefore need
to argue by comparing your scenario with those in past cases.
b. Analogy and distinction: The last point about reading cases leads
us to a separate skill: making analogies, and drawing distinctions,
between the case before you and past precedents. This is a
quintessentially lawyerly skill (at least in countries which use the
Anglo-American legal system). Math classes, for instance, generally
call on you to solve a problem by applying basic mathematical
principles, or deriving the principles and then applying them. It�s
helpful to see the similarities and differences between this problem
and past ones, but chiefly because seeing them can help point you
towards the right principles to apply.
([1]Show the rest.)
But in law, there sometimes won�t be a basic principle you can appeal
to, or the principle may be so abstract (e.g., �breach of duty�) that
it won�t give you much guidance. That�s when drawing analogies and
making distinctions between your case and the precedents becomes very
important. Often, the strongest argument you have is not �My client
should win because defendant�s conduct satisfied the elements of the
test for liability,� but �My client should win because defendant�s
conduct is very close [for these reasons] to what led to liability in
X v. Y, and very far [for these other reasons] to what led to a
finding of no liability in Z v. W.�
Torts classes are especially focused on teaching analogy and
distinction, and this is especially true for this class in particular.
You�ll be reading many more cases (though in shorter chunks) in this
class than in most of your other classes; and often the questions
you�ll have to answer are -- to quote the textbook -- �What is the
superficial similarity between [these two cases]?,� and �What is the
distinction between them?�
I�ll say some more on analogy and distinction at [2]p. S7.
c. Reading statutes: Reading statutes is also a very important legal
skill. We won�t focus on it much in this class, since torts is a
mostly nonstatutory field. But pay close attention to learning how to
read statutes in your other classes (such as contracts, criminal law,
and civil procedure). Much of a lawyer�s life is spent reading
statutes.
d. Thinking about how the law affects prospective litigants (and
others): In law school classes, we�ll often talk about the results in
particular cases, and about whether those results seem right. But most
people don�t view the law looking backward this way. They need to view
it looking forward, by asking what they should do to avoid liability.
This is how you�ll need to advise them when they ask you for advice.
�What, if any, security precautions should I take to prevent my being
held liable if my customers are attacked by a criminal?,� a business
owner might ask you. �Juries award liability if reasonable precautions
aren�t taken� isn�t very helpful. Neither is �In this case, which had
the following facts, a jury awarded liability.� On the other hand, �if
there have been no criminal attacks on your property yet, and you
don�t hire a security guard, you will almost certainly be able to get
the case thrown out of court before trial even if there is a later
criminal attack� would be pretty useful advice (assuming it�s
accurate, of course).
Relatedly, when you�re arguing about what the law ought to be, you
should be ready to explain how the law will affect people�s incentives
up front, rather than just explain why the law seems fair in
apportioning liability after the fact.
Imagine, for instance, a proposed legal rule which simply says, �act
reasonably.� One problem with the rule is that juries might not do a
good job of applying something this vague. But even if we�re sure that
juries will usually properly sort the reasonable (who will properly be
found not liable) from the unreasonable (who will properly be found
liable), this will give little guidance to people who need to know up
front how they should be acting.
Such absence of guidance is a good argument -- though not always a
dispositive argument -- against the proposal. And you can�t think of
this argument if you don�t think about how the law will practically
affect people in the future.
e. Making policy arguments: A lawyer must sometimes advise a client
whether certain conduct would lead to liability. We can call this the
lawyer�s predictive function, because it involves predicting (whether
confidently or tentatively) what a court would do.
But often a lawyer must make arguments about how a court should
interpret a legal rule, which legal rule the court should apply, and
sometimes even which legal rule the court should create or adopt. This
is the lawyer�s persuasive function, and to perform it, a lawyer needs
to know how to argue (1) why a court should adopt one or another
reading of a precedent, (2) why some precedent is closer to or further
away from a particular fact pattern, (3) why some statutory language
should be interpreted one way or another, and (4) why a court should
or should not adopt some rule that is within the court�s power to
adopt or reject. Lawyers arguing outside court will also often have to
argue (5) why a legislature should or should not adopt some rule, and
(6) why executive agencies or other administrative agencies should or
should not adopt some rule.
Arguments that fall within categories 4, 5, and 6 are often called
policy arguments, as opposed to caselaw arguments (1 and 2) and
statutory construction arguments (3). Many class sessions will be
devoted to talking about policy arguments -- what kinds of policy
arguments have been made and accepted by judges and legislators in the
past, what standard responses there are to those arguments, and so on.
Some people get impatient with those arguments, because they think
they want to know what the law is, not what it should be. But that�s a
mistake: The law is often vague, and sometimes unsettled; judges often
have some flexibility in deciding which rules to adopt, or how to
apply a rule. In such situations, judges may well be swayed by policy
arguments.
I�ll say some more about making policy arguments at [3]p. S8.
f. Talking in front of others. All lawyers have to be good at this.
Even if you plan on being a transactional lawyer, you�ll have to give
presentations to clients and potential clients. Moreover, many lawyers
find they have to give talks to lawyer and business groups in order to
spread their names and thus get more clients (or more referrals from
other lawyers).
We don�t teach you this skill formally, outside a few clinical oral
advocacy classes. But we do ask you to learn the skill by doing -- by
speaking in class.
Yes, speaking in class can be frightening, but remember that all
you�re risking is a little embarrassment. How frightening will it be
when your job prospects, your client�s money, or your client�s liberty
is at stake? The way to reduce this fear is practice, which is what
you�ll get by speaking in class. So please don�t ask me to exempt you
from class participation, which is a requirement of this class. If
speaking in public troubles you -- as it troubles many people -- you
need to speak more, so as to overcome the fear.
We also often ask you to speak without advance notice, by calling
randomly on you. This is not quite like practice, but it�s still
helpful, because the possibility of being called on tends to focus
students� attention. In this class, I also try to make the experience
easier for students by calling on two students at the same time. That
way, if one student stumbles a little at the outset, the other can
take the lead, and by the time I return to the first student, that
student is likely to be ready to take up the challenge.
4. Habits and attitudes: So far, we�ve talked about knowledge and
skills. But law school is also aimed at teaching you certain habits
and attitudes that can help you succeed as a lawyer. Let me mention a
few, which are closely tied to what we�ve said before.
a. Think dispassionately, and always examine the other side of the
argument. You can�t be good at making arguments (caselaw arguments,
statutory construction arguments, or policy arguments) if you aren�t
willing to step away from your ideological and even moral commitments,
and see the best argument that can be made on both sides.
You might think that big companies routinely profit by injuring
consumers, that products liability law should be more
plaintiff-friendly than it is, and that nearly all tort defendants are
morally culpable. Or you might think that plaintiff�s medical
malpractice lawyers are low-lifes who are ruining the lives and
reputations of innocent doctors, and making good medical care much
more expensive. You might be right, on either or both of these scores.
But you can�t be an effective advocate for your perspective if you
don�t fully grasp the strongest version of the other side�s arguments,
and objectively see the possible weaknesses in yours.
Sometimes as a lawyer you�ll be obligated to argue in court for a
position you disagree with. But even if you always argue for the side
you believe in, you need to have earlier -- in your head or in
conversations with your colleagues -- made the best argument for the
other side. Don�t ignore your passions; they can energize you to work
more effectively, and can help you derive satisfaction from your work.
But don�t let them blind you.
In particular, you�ll often be called on in class to argue a
particular position, even if you don�t believe in it, or sometimes
even to argue against the very point you had just made. Don�t resist.
Rather, cherish the opportunity to cultivate this important lawyerly
habit.
b. Marry the abstract arguments and the concrete arguments. Effective
legal arguments tie abstract rules to the concrete facts of a
particular case. It�s not enough to present the concrete facts;
however emotionally appealing the facts may be, you can�t persuade a
court to give your client what your client wants unless you explain
how the facts fit within a legal rule. But in my experience, most law
students (and many lawyers) are good at pointing to legal rules -- or
to broad philosophical abstractions -- but not as good at explaining
why those rules or abstractions apply in this particular context.
For a concrete illustration of this, see the policy argument
discussion at [4]p. S8.
* * *
So keep in mind that this class is about learning many different
things. If a class session is light on the legal rules, it may be
heavy on the policy arguments. If we spend a lot of time with one
doctrinal question that only rarely comes up in practice, the reason
might be that we�re using it to study some broader principle, which
comes up all the time. My hope is that by the time the semester is
over, you will have learned a lot on all these topics.
([5]Hide most of the above.)
References
1. file://localhost/var/www/powerblogs/volokh/posts/1249858402.html
2. http://www.law.ucla.edu/volokh/torts2009.pdf
3. http://www.law.ucla.edu/volokh/torts2009.pdf
4. http://www.law.ucla.edu/volokh/torts2009.pdf
5. file://localhost/var/www/powerblogs/volokh/posts/1249858402.html
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