Article of the Month

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October 2015

Carol L. Chomsky, Casebooks and the Future of Contracts Pedagogy, 66 Hastings Law Journal 879 (2015) [Read fulltext at Hastings Law Journal website (151 KB PDF)]

In spite of the calls to enhance our courses by incorporating skills-building role-plays, collaborative small group exercises, and ripped-from-the-headlines real-life illustrations, the core of nearly every law school course remains the casebook. Casebooks drive course content and design more than anything else (possibly even more than the professor), and similarly are hugely relevant to student outcomes from and experience in class. Legal education has and continues to evolve; casebook content and design must therefore evolve as well.

Professor Carol Chomsky has added much value to the open question of how to best evolve teaching materials in her recent article, "Casebooks and the Future of Contracts Pedagogy." In this thought-provoking piece, Professor Chomsky discusses six developments and concerns that are driving change in law school casebooks, and she suggests ways that casebook and course designers can steer the evolution of their course materials to meet evolving student and systemic needs. Although she groups the forces of change into six categories, these can largely collapse into two larger overarching evolutionary drivers: (1) A growing emphasis on teaching to practice, and (2) the need to give students what works, while keeping in mind student preferences. Chomsky frames her discussion of casebook evolution in the context of Contracts, speaking specifically from her own experience with the Knapp, Crystal, and Prince casebook and from developing her own Contracts casebook materials, but her suggestions are easily transferable to other disciplines.

Chomsky advocates that course content should be driven with an eye to the doctrine and skills that are needed for practice rather than merely based on historic or traditional content for a given course. In Contracts, for example, Chomsky points out that most casebooks spend a large amount of time and space focusing on issues related to formation and capacity. In practice, however, contract disputes almost never center on these issues. Transactional lawyers and litigators in breach of contract disputes focus mainly on issues of contract interpretation. It is difficult to emphasize interpretation through legal rules alone, however, because interpretation cases are very fact-specific, involving factual rather than legal determinations. Chomsky also points out that for an increasing number of real-life contracts (particularly consumer contracts), the sole legal issue ends up being the enforceability of a mandatory arbitration clause, because disputes arising thereunder may not even be judicially determinable.

In addition to emphasizing the most relevant and foundational legal doctrines in any course, Chomsky explains that a modern law course and a casebook must deliberately incorporate lawyering skills. This includes but is not limited to legal analysis. In Contracts, law students should learn not only to analyze a case or a hypothetical scenario, but to read and interpret contracts, to plan and draft the content of contracts, and to negotiate regarding contract formation and performance. These sorts of experiential components of contract law education are in line with new ABA accreditation standards and will help teach students what they need to know and want to learn. Furthermore, such lawyering skills may eventually (and rightfully?) be tested on the bar exam. Some of the key competencies that Chomsky (and the ABA) identified for a first year Contracts course include those interviewing, counseling, negotiation, fact development and analysis, document drafting, conflict resolution, collaboration, cultural competency, and self-evaluation. Casebooks should provide materials to teach these skills in addition to including the more traditional cases and notes that teach legal doctrine.

Casebooks also must evolve to reflect today’s best pedagogical practices. Chomsky details twelve “things we know about learning theory and practice” that could make teaching materials and course design more effective. In brief, learning outcomes are optimized when:

  1. Learning is active and effortful;
  2. New facts and concepts are connected to what is already known;
  3. Students can identify gaps in their knowledge;
  4. Students are repeatedly tested ("Testing helps students learn because it interrupts forgetting.");
  5. Multiple topics are linked together ("interwoven");
  6. Learning is connected with how the knowledge will later be used;
  7. Students are able to self-reflect and self-assess;
  8. Problem solving is attempted before solutions are given;
  9. Visual and verbal learning channels are accessed together;
  10. Students are taught the skill of reading;
  11. Students are led through the increasingly complex stages of learning (from accessible knowledge, to comprehension, to the ability to apply, analyze, synthesize, and evaluate);
  12. Students understand these pedagogical principals so that they can become effective learners.

Chomsky explains that these pedagogical principles should deliberately inform casebooks, and that casebooks should be designed to allow easy application of these principles. Furthermore, teaching manuals would do well to inform and advise professors with respect to the efficacy and methodology of these approaches, including implementation ideas and exercises.

Finally, Chomsky predicts that casebooks can – and should – evolve in response to student needs (“What will sell”). From an admittedly unscientific survey Chomsky conducted among her University of Minnesota Law School students, she came up with a list of eleven things that students would like to see in their casebooks, and, presumably, their law school courses. These student suggestions include things like more clarity in the presentation of legal rules (rather than burying legal rules in “opaque materials”), problems that they can use to test their understanding, better road-mapping with respect to a broad area of the law and how a given unit of study fits into that big picture, better connection of the law to the world around them and their future practice, and material that is better humanized with pictures and stories behind cases. Interestingly, students in Chomsky’s study also indicated that they prefer to have all casebook content be included in a hard-copy volume, and expressed comparative reluctance to use and access online textbooks, weblinks, and the like. Chomsky wonders if this reluctance to use digital learning tools stems from the fact that the current generation of law students learned from actual books, even though they learned to take notes on a laptop. If so, Chomsky wonders if this will change as future generations learn more from a screen rather than a page. (I for one certainly hope not because, in my completely unscientific opinion, people read and retain information better from a printed page.)

Casebooks, course design, and law school pedagogy are all evolving, and at a remarkably quick rate. Authors and professors who use casebooks would therefore do well to thoughtfully consider Chomsky’s suggestions when it comes to crafting casebooks and course design as well as selecting course materials.

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