Steering Students Back to the Rule

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By Jeremiah A. HO, University of Massachusetts School of Law

It’s undeniable to me that each incoming class of 1Ls that I’ve ever taught has always exhibited a collective personality of its own from the prior one.  Despite this, I’m also amused by a commonality that each first-year Contracts class has shared with me—at least in the first semester of law school.  Whether it is because I teach in Massachusetts (where the politics can sometimes be loud, colorful, and brash) or whether it is just that law students—and lawyers, by extension—are intrinsically a breed of vocally assertive people, my first-year students always enter my class with a fervor to argue that they are legally “right” about a contract dispute, even though they are untrained and usually have little background in the subject area.  They like to reach for their gut instincts based on the facts they read in cases or hypos I give them.  They don’t always tend to realize that they’re to learn the law.

On the one hand, it’s great that they have this built-in passion for opinion and advocacy.  It shows me that they have energy and appetite for lawyering.  But if not soon reinforced by a method of legal reasoning (perhaps even à la “thinking like a lawyer”), this passion can also lead to bad habits and imprecise, undisciplined lawyering.

My lesson here is about how to train and direct students early on to remember that when they are faced with a legal dispute or hypothetical, their first strategy is to not go to their gut instincts and raw passion, but to go strategically to the law.  Thus, when they are given a fact pattern, they are not arguing why one side should prevail based on their own reading of facts or their own sense of justice or fairness, but that they first examine what rule of law might be pertinent for grafting onto this particular set of facts in order to come to a lawyerly conclusion.   This is a basic skill of legal reasoning that can be obscured by the excitement of starting law school, the mysterious (and sometimes confusing) nature of Socratic lectures, and the intensity of the first-year curriculum.  But by the end of the first year, if students don’t realize in a disciplined way that they always should go back to the rules, then their law courses have done them a disservice.

One way in which I have addressed and developed this habit of “going back to the rules” is by often introducing a new doctrinal unit with a “master” fact pattern hypothetical I can use to demonstrate a classic scenario that involves that new doctrine.  The reason I call this hypo a “master” fact pattern is because I will give it to students to try solve the problem when they don’t have the doctrinal rules yet, then use the same fact pattern to introduce and teach them the doctrine, and lastly re-visit the fact pattern as we get into the cases and pose variations on the hypo that illustrates the nuances in the doctrine.  My hope is multi-faceted:  First, without knowing the particular rules of law, my students first see the factual hypothetical and anticipate a resolution based on their gut reactions.  Then as they are taught doctrine in tandem with the hypothetical, they now have an active moment of discovery where the particular legal rules and doctrine reveal how the hypothetical might be resolved in a lawyerly way.  It’s also a good moment to emphasize the utility of the law and to redirect their instincts to reach for the law first, instead of resorting to arguing facts or fairness.  It can also be a good place to critique the law and bring in policy or demonstrate lawyerly analysis.  Lastly, now that they know the rules in tandem with a factual scenario, the variations on the fact pattern continue to reinforce their sense that they should always be thinking, “What’s the rule or doctrine?” at every step of the way.

One example of this is when I teach the unit on U.C.C. 2-207 Battle of the Forms to my students.   The unit is sequenced after we’ve gone through the mirror image rule for contractual acceptances.   Before unleashing the U.C.C. provision on the students, I start with an in-class hypo that involves a sale of goods between a wholesaler supplier and a product manufacturer.  Despite firm and identical agreement of the type of goods, price, and quantity, the problem involves differences in the boilerplate fine print on the back of the parties’ respective documents.  Students will know that under the classic mirror image rule there’s no contract technically.  But if I tell them that issues like this occur in business transactions countless times every day, involving tens of millions of dollars, they are usually perturbed and left trying to figure out what do we do when these parties incur liabilities, such as a product defect.  What do we do?

I like to stir up controversy because it usually makes them pay attention.  That’s when I tell them that as lawyers we have to go back to the law, and I then introduce 2-207 under the U.C.C., whose purpose, among others, is to resolve issues such as discrepant fine terms.  Then, we work through the fact pattern.  What I’ve essentially done is to first give my students a problem without the law, then incite their outrage or passion or inquisitiveness, and at last systematically direct them to reach for a legal solution by going to the rules rather than analyzing the facts first.  Use your brain, folks, particularly your left brain.

This works well as an assessment tool as well.  In most courses I teach, I usually begin with the first day with a fact pattern that runs through from A-to-Z all of the major issues of the subject area.  I make my students answer the question even though they don’t know the law yet.  I want them to feel inadequate without the rules of law that would otherwise help them investigate and problem-solve like lawyers.  Then gradually as we move through the semester, I will often find appropriate moments later, perhaps after we’ve learned a few units, to pull out that same fact pattern and ask them again to examine the problem and see how much better they can resolve the hypo now that they have had some law.  At the end of the semester, we usually look through the same problem one final time and hopefully students will have a good assessment tool for gauging how much doctrine they know now to analyze the question as well as a fundamental understanding that a basic strategy in legal reasoning is to reach for the law first.