By Jeremiah A. Ho, University of Massachusetts School of Law
Paula Franzese, Law Teaching for the Conceptual Age, 44 Seton Hall Law Review 968 (2014) [Read fulltext at Seton Hall Law Review website (10.9 MB PDF)]
Amidst the continued criticisms lodged against the state of today’s legal education, Professor Paula Franzese’s recent article, “Law Teaching for the Conceptual Age,” agrees with many other similar critiques on the subject that something has to give. Yet, instead of reassessing the business model of law schools or suggesting another re-tool of the law school curriculum toward a more practice-oriented vein, Franzese recommends a solution from a teaching perspective by asking how law teachers can enhance traditional law teaching pedagogy to better engage and serve our students who have generationally shifted toward a life in what she calls “the Conceptual Age.”
The reflection of current law school student demographics is Millennial, and what Franzese suggests is that the Socratic teaching model, which promotes linear, analytical, “left-brain” thinking, needs to become more receptive to teaching conceptual, “right-brain” modes of thinking that are coincidentally in sync with characteristics of the Millennial generation. She makes this suggestion not necessarily with the purpose of pandering to Millennial law students but to demonstrate how it would bring balance to the process of today’s legal problem-solving. As she claims, since the mid to latter 20th century, the “globalization, outsourcing, technological achievement rendering obsolete entire categories of work, and sharp economic downturns are demonstrating the limits of the narrowly linear. In its place, the last two decades have witnessed the ascendance of the inventive, big-picture, ‘high concept’ aptitudes.” What’s missing in traditional law classroom pedagogy are opportunities for our students to learn the practice of law by developing conceptualized thinking about legal situations that ultimately lead them toward finding empathy and meaning in the law–in other words “right-brain thinking.” According to Franzese, “[r]ight-brain thinking involves the non-sequential cognitions that are able to interpret things simultaneously, appreciate context, and put isolated elements together to perceive the bigger picture.” Rather, the Case Method is heavily concentrated in training students to develop analytical skills premised on applying principles and case precedent to relevant facts and being able to spot and categorize legal conclusions from analogous set of facts to the next. “So much of what we do there exalts the deductive, the sequential, the logical, and the linear, all worthy parts of the picture, but not the whole picture,” Franzese writes. But when do we have a chance to ask our students about the conceptual questions within the law and develop the types of skills and intuition that might allow our students to innovate and think outside the box when it comes time for them to problem-solve creatively on a legal matter?
What Franzese proposes is teaching that is neither premised on solely left- or right-brain thinking, but instead on what she calls “whole-mind thinking.” She’s attempting to strike a balance. A good legal thinker ought to be able to think analytically and logically about the law but then be able to conceptualize the law within situations that are affected by social, political, and economic forces. In order to successfully achieve the goals of this whole-mind teaching and learning, Franzese offers some tools for teachers and students to do just that. In a prominent example, she shows how she teaches the landlord/tenant unit in her Property course by setting aside class lecture time to bring in a fictitious couple played by upper-class students and setting them in a hypothetical in which the couple is having trouble with the apartment they have just rented. Students are asked to try to use what they have learned from prior cases and discussion to help problem-solve what they think is a real-life problem. The trick here is that Franzese does not reveal that the couple is merely fictitious and that the whole interaction is part of a simulation until the very end of the exercise. The “realness” of it seems to create a great level of class-engagement and urgency for creative problem-solving, as well as help build empathy in the students for their “clients.” Once Franzese has revealed that the interaction is a simulation, it affords her the opportunity to de-brief with her students the teaching and learning approaches that the exercise poses. Specifically, “[l]etting our students know why we chose a particular teaching tool, why it works and how they can create comparable opportunities to enhance their own learning processes develops their metacognitions, or awareness of their actual process of learning itself.” Students are then more self-aware of how they learn through context and can more directly think about how to think both analytically and creatively about the law in the face of future legal problems.
Another teaching example that Franzese uses to get students to approach the law more “whole-mindedly” is in an exercise she calls “You Be the Teacher,” where “students are asked to assume the professorial role to teach the material, preparing for a part of the class as if they were the professor.” Her specific directive in this exercise is that students “are required in advance of class to think about the essential teaching points and meaning (both textually and sub textually) of the assigned cases, statutes, and problem-sets, and how they relate back to previous class explorations and can help to inform our future scope of coverage.” In running this exercise in her classroom, Franzese has observed that “[s]tudents are charged with thinking about how best to render difficult material both accessible and understandable, how to put the assigned materials into larger context, and how to help the class discern why the topic at hand matters.” In other words, the exercise gets students to develop both analytical skills and also conceptual thinking stills about the subject matter that they are assigned to present. Interestingly, she notes that this exercise’s success is partially premised in how it creates empathy: “A good part of the students’ new found acumen is attributable to their empathic experience of being a law professor.”
Franzese’s article contains many other teaching examples used in other law courses that can be helpful for the instructor who wants to get students to think not just analytically but also capture a significant intuition about the law. Ultimately, she professes that teaching is a moral craft and within the law classroom there is a responsibility to our students to create opportunities that reflect a genuine experience in the law. In the age of outcomes and assessments in legal education, what her article helps answer–at least in part for me–is a question about how to make our teaching relevant for our students so they will embody the values and proficiencies that will make them not just effective practitioners of the law but also empathetic and creative innovators that will push the law forward.