Non-Legal Materials Foster Critical Thinking
The Law Teacher, Volume 4, number 1 (Fall 1996), p. 3-4.
About the Author
Gregory Sergienko is a visiting professor at the University of Richmond School of Law, Richmond, VA 23173; (804) 289-8738; fax (804) 289-8683; sergienko [at] uofrlaw.urich.edu.
[Editor's Note: Since this was published, Gregory Sergienko has moved to Western State University School of Law, 1111 N. State College Blvd., Fullerton, CA 92831; (714) 738-1000 (ext. 2530); fax (714) 525-2786; gregs [at]wsulaw.edu.]
Most first-year students are ready to learn "the law," but overestimate the certainty of the law and underestimate the importance of critical thinking.
My principal goals as a law teacher are to instill this critical-thinking ability and to teach some of the substantive law necessary as a foundation. Beginning a course with non-legal materials encourages critical thinking and counteracts students' initial emphasis on legal jargon. Because these materials do not involve legal language, they curb the students' rush to embrace the use of technical terms as a substitute for thinking. Moreover, the non-legal materials provide a bridge from everyday experience to the study of law.
I begin my Civil Procedure course with Solomon's Judgment and the problem of cake division. You are probably familiar with one or both of these; certainly most of my students are. In Solomon's Judgment, Solomon is asked to decide which of two women is the real mother of the baby. In the cake division problem, parents have to decide how to divide a cake between two children.
The Judgment of Solomon
16Now two prostitutes came to the king and stood before him.
17One of them said, "My lord, this woman and I live in the same house. I had a baby while she was there with me.
18"The third day after my child was born, this woman also had a baby. We were alone; there was no one in the house but the two of us.
19"During the night this woman's son died because she lay on him.
20"So she got up in the middle of the night and took my son from my side while I your servant was asleep. She put him by her breast and put her dead son by my breast.
21"The next morning, I got up to nurse my son -- and he was dead! But when I looked at him closely in the morning light, I saw that it wasn't the son I had borne."
22The other woman said, "No! The living one is my son; the dead one is yours."
23The king said, "This one says, 'My son is alive and your son is dead,' while that one says, 'No! Your son is dead and mine is alive.'"
24Then the king said, "Bring me a sword." So they brought a sword for the king.
25He then gave an order: "Cut the living child in two and give half to one and half to the other."
26The woman whose son was alive was filled with compassion for her son and said to the king, "Please my lord, give her the living baby! Don't kill him!"
27Then the king gave his ruling: "Give the living baby to the first woman. Do not kill him; she is his mother."
28When all Israel heard the verdict the king had given, they held the king in awe, because they saw that he had wisdom from God to administer justice.
1 Kings 3:16-26 (NIV)
Mom and Dad have brought home two pastries.
One they propose to share themselves, and the other they want to divide among their two children.
The children, 10 and 12, are reasonably well behaved, but perfectly capable of arguing at hideous length over the division of the pastry.
How should Mom and Dad handle the problem?
I start by presenting Solomon as a conventional case by getting the students to go through the statements of both parties. I then ask them to decide the case on the basis of the information they think they have.
The usual approach is to give the baby to the woman who has physical control. That leads to a discussion of the burden of proof, which I follow up by asking what advice they would give, were that the rule to be anticipated, to the woman who claims her child is kidnapped. In that case, I suggest that they advise the woman who doesn't have the baby. Eventually we work around to the idea of counter-kidnapping. Others suggest joint custody, but when we start to talk about how the two mothers will deal with one another, no one thinks that is likely to work.
Then we address Solomon's stated reason for decision and ask them to describe Solomon's reasoning. Eventually, we develop the idea that his major premise is that the real mother wouldn't let her child be cut in two. At this point, the students are generally satisfied.
Then I ask the students to present the case for the second woman. This took some work last year, but when we staged a re-enactment, the students realized that the first woman's testimony implied that she saw the second woman's baby die, and this is almost certainly false: If they were in different rooms, she would not have seen it, and even if the two women were in the same room, she would not have let the other woman crush her own baby.
At this point I say, "So it looks like Solomon awarded the baby to a perjurer. How many think he was right?" The split was about fifty-fifty, with many now wondering if guilt, rather than love for the baby, influenced the woman to be willing to give her up. This brings out the importance of procedural rights; even with a judge as wise as Solomon, cross-examination could alter the result.
Then we talk about Solomon's result: Even if you think he awarded the baby to someone who wasn't the true mother, is there anything to be said for the result? Many say Solomon was right to give the baby to someone who wasn't the true mother, because she was the best mother. At this point, I ask them if that was what Solomon said he was doing. They realize it wasn't, and then I ask them why he might have followed a rule different from the one he said he was following.
The students quickly realize that a rule awarding custody on the basis of being the "best" parents would unsettle society by opening up litigation for any case in which someone wanted a child and claimed to be the better parent. I then follow up by asking the students how they feel about Solomon's following a "rule" different from the one that he said he was following. This provides a reference point for examining legal fictions and judicial insincerity later in the course.
Finally, we discuss the case of woman three and woman four, who come before Solomon with the same problem. This brings up the ethics of witness coaching. I ask whether the students would tell their client what to say when she gets in front of Solomon, and what they would say if their client asked them to tell everything they know about what will happen in front of Solomon. Once we get past that, we have to ask what Solomon will do when the two women before him each say, "Let her have the baby!"
Then we get to the cake-splitting problem. Invariably the class suggests a rule in which one child cuts and the other chooses. This seems so simple that it takes a bit of work to get to the underpinnings of that rule: reliance on the child's ability to protect herself, so we might not allow this between a three-year-old and a fifteen-year-old; reliance on the child's judgment, so that we might not allow a child to consume so much cake that she got sick; and reliance on a background allocation of entitlements or expectations so that we know the children will not fight to the death over the cake. We then discuss how procedural justice, particularly in the form of settlement, fits within the American judicial system.
We then look at other possible rules: having the parents award portions according to the arguments advanced (which leads nicely to a Lon-Fuller-like discussion of adjudication in terms of the presentation of reasoned proofs and arguments); or, simply having the parents decide, to avoid the burden of their having to listen to arguments.
Examination of these non-legal materials usually takes two or three 50-minute class sessions. The students are amazed at how much they got out of a brief problem, and that encourages them to read carefully in the future. In addition, deciding or nearly deciding that Solomon was wrong or not completely straightforward makes them much more willing to challenge the reasoning of judges. I hope also that they have learned something about lawyering skills: scrutinizing facts critically and thinking about how to ask questions and present arguments.
At this point, we are ready to go on to the rest of the course. The first standard case in the textbook I use involves an activist judge investigating municipal corruption in New Jersey, who is reversed for becoming too closely involved in the proceedings. The question I ask the students before getting to the New Jersey case is, "Would the New Jersey court of appeals reverse Solomon? If so, who is right?" I also ask them to compare the judge to the parent of the three-year-old: Why can't the municipality protect itself?
When we get to discussing the case, we talk about the importance of legal rules in producing settled results, and the difference between Solomon's society and New Jersey society in their view of the judge and of the need for predictable rules. Excerpts from Max Weber on the various types of legal decision-making place this in context. The whole exercise allows the students to see procedural rules as answering the procedural needs of the society in which they are used. They also see how our system has different characteristics in different places, so that juries function much like Solomon, rendering decisions without concern for precedent, while judges must provide reasons consistent with precedent. The discussion of judges and juries prepares them for the Seventh Amendment later in the course.