One of the conundrums many ASP professionals run into is the
use of “the law” to teach skills. Why is
this a conundrum? If more than one
professor teaches the same subjects (like two Torts classes taught by two
different Torts professors) there are bound to be differences in coverage and
interpretation of the law. This is an issue fraught with challenges, most
importantly, what law do we use? After
dealing with this challenge each year, I have developed some basic strategies.
neutral law. What is neutral law? Contract formation requires offer,
acceptance, and consideration. A prima
facie claim of negligence requires duty, breach of duty, causation, and harm. These are very broad, general principles of
law where very few professors will differ, although, as my own disclaimer, I
have had a professor disagree with the harm element in negligence. I try to use examples that do not include
nuances of law that are ripe for differing interpretations.
2) Always
preface any discussion of law with a disclaimer about using the professor’s
rules and interpretations on the exam. I frequently remind students that their
teacher is writing and grading the exam, not me, and they need to use the law
they are taught in class on their exams. This leads to discussion about ambiguity and interpretation in the law,
which is another area where many first-year law students need reassurance that
ambiguity is their friend, not their foe.
3) Use
non-legal examples to illustrate legal principles. Mike Schwartz has some excellent examples
that my students have raved about. Charles Calleros provides some fantastic
examples in his Legal Method and Writing text. Non-legal examples provide a fabulous vehicle for discussing analogical
reasoning and it’s relationship to the case method.
When speaking with reluctant professor’s, I strongly suggest
explaining how ASP is using the law. Differentiate using the law as a vehicle for teaching skills from
teaching the law itself. I leave plain
vanilla law teaching to the doctrinal professors; that is their job, not
mine. However, teaching skills to
understand, apply, and demonstrate comprehension of the law is my job. It’s
hard to teach the skills without a vehicle, akin to teaching car mechanics without
parts of a car. I have found that even
reluctant law professors are more amenable to ASP when you give them their due
and reassure them you are not impugning their teaching methods or teaching
skills. Once a reluctant professor is reassured
you are not poaching on their turf, it’s helpful to define what you do in a way
they understand. Let them know Academic
Success in law school is an area of academic study just like Torts, Contracts,
or Business Organizations. We have our
own methods and goals. While some
broad-based rules of law are necessary as vehicles for teaching skills, ASP
professionals don’t need to teach the law to teach skills. (RCF)
