Do We Need Subject Matter-Specific Pedagogies?

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By Rory D. Bahadur, Washburn University School of Law

In her recent Article Do We Need Subject Matter-Specific Pedagogies?, 65 J. Legal Educ. 839 (2016), Professor Kris Franklin invites us to consider the unique roles that the various foundational courses may play in the law school curriculum.

The Article was published as part of an AALS symposium dedicated to the teaching of civil procedure, and asks, essentially, what value there might be at considering legal pedagogy in the context of individual academic disciplines. Or as Franklin puts it: “Is good teaching simply good teaching wherever it is done, or is there something different about how we teach, or ought to, within each academic discipline?”

Using examples drawn both from the other pieces in the symposium itself and an earlier collection of essays on the teaching of civil procedure, Franklin carefully considers what a law professor new to the subject might glean from her colleagues’ writing.  She concludes that at the very least, studying the existing pieces on teaching civ. pro. would offer valuable tips on how to help students understand especially challenging subject matter.  More broadly, she observes reading other scholars’ work on civil procedure pedagogy could refine her sense of how to use the subject to teach some of the critical skills that lawyers, and law students, must begin to master. This inquiry, Franklin tells us, would be valuable in and of itself, because it would make her (and any reader) a better teacher of the subject.

But Franklin goes on to note that reading the other articles would do more than just offer technical advice about teaching this particular exacting course: It would show her how “a deep comprehension of civil procedure distinctly contributes to an understanding of what law is, or what it means to be a lawyer.”

Perhaps it is Franklin’s suggestion that most law Professors when asked what good pedagogy is, will respond in very broad brush, general terms, which lays the foundation for the article’s most salient point.  At bottom Franklin suggests we examine each of the foundational courses and specifically identify which subset of the “good pedagogy” principles each class is best suited for rather than trying to make each class employ all the pedagogical tools we typically identify as good pedagogy.

She begin the process of identifying which of the foundational courses are the best pedagogical vehicles for specific aspects of what we all tend to agree law students need to learn or what good pedagogy entails.  For example she suggests:

  • Criminal law introduces students to the importance and function of statutes (at least, it does so more than other first-year courses tend to). Most criminal courses heavily reference either the Model Penal Code or the state or federal penal law.Perhaps they even study and compare more than one of these sources. Yes, there are codes relied on in other introductory courses, but criminal law courses teach students that they must always read carefully the specific language of the statutes to determine what offenses might legitimately be charged for a given set of facts.
  • Contracts law is particularly intricate. It could be especially important in helping to hone students’ analytical precision. Furthermore, its problems have to be approached in an unusually constant order: asking first whether a legally binding agreement was formed (mutual assent plus consideration); second, whether it was breached; assuming it was, whether there are any defenses to that breach; then finally, what if any damages the parties to the agreement may claim and receive. This remains the case despite the fact that there is wide variation in the order in which these basic steps are covered in contracts courses. If students grasp this “flow chart-ish” nature of analyzing contracts problems, they are often well on their way toward understanding contract law itself, and they have reinforced an organizational skill that may be helpful in other areas as well.
  • Constitutional law is probably the only foundational law course, maybe the only class in law school altogether, in which each and every case matters for its own sake. Consequently, constitutional law as a discipline requires analogical reasoning to important cases in a way that few other introductory law courses do. Beginning law students often do not use cases well, in part because they find it especially difficult to fathom why they are reading particular cases. Students frequently cannot distinguish those cases they are reading as simply being among any number of examples that might have been selected to illustrate how a particular legal rule operates, as opposed to those leading cases that are assigned because they introduce or solidify the doctrine. In contrast to most other required introductory courses, allcases in a constitutional law casebook are likely leading ones, while this is true of perhaps very few of them in a property casebook. Students of law should therefore learn and use those cases in different ways. A teacher in constitutional law may help students understand why the assigned cases have unique importance in this course, which could in turn help law students discern the differences between leading cases and those offered merely as examples. If so, students could learn how to use cases in a more sophisticated way in all of their classes.
  • Evidence problems seem to lend themselves to meticulous specificity in the application of a set of rules that becomes thorny when argued in given situations. Some evidence professors suggest that multiple-choice testing is especially useful in that subject because of the way rules of evidence are used in the courtroom–as points for rapid and discrete debate, often handled spontaneously and settled definitively. Regardless of assessment method, it may be true that evidence courses offer exceptional opportunities for their students to hone pointed argumentation skills within rigorous application of legal rules.

She suggests that grasping this latter point would go a long way toward developing a broader theory of how each of the standard required courses in the law school curriculum contributes to the “gorgeous mosaic” of learning law itself. She invites us to consider how every one of our courses fits into that big-picture view of the legal curriculum, so that we can consciously teach each course to more effectively educate tomorrow’s lawyers.  In addition to all of the above the article challenges us to examine the courses we teach and to actually quantify what good teaching entails beyond a simple and shallow reiteration of buzz phrases.