Legal Commentary

I?ve been hoping for some time now to conduct the pedagogical experiment described below. But, as I haven?t had the chance to do so yet, I thought I?d just sketch the plan and see if any of you had words of wisdom or warning.

The idea is that I?d teach a class three days a week, but we?d only read cases (or statutes or other legal source materials) for the first two of those days. On the third class day of each week, we?d stop dissecting the cases they?ve read for the week and instead turn our attention to a somewhat different task: applying the holdings and legal rules we?ve learned up to that point in the class to hypothetical fact patterns (of the sort students will see on the final exam). So, for example, when we cover speech in public schools or government employment in Con Law II, students would come to the first two classes of the week prepared to discuss and analyze the major cases on that subject (Tinker, Hazelwood, Morse, Pickering, Connick, Ceballos, etc). But on Day 3, students wouldn?t have any new cases to read. Their homework would instead consist of analyzing (and perhaps preparing written analyses) of hypos (1) some of which challenge them to draw upon only the newest material we?ve read (on school and employee speech) and (2) others of which raise issues from earlier in the class ? like an Equal Protection Clause question or perhaps a First Amendment ?low value? speech question.

Why try this? For one thing, while I loved my law school education, I always wondered why ? if exam hypos are good tests of how well we?ve honed our legal reasoning skills ? why we don?t spend weeks practicing with such hypos (and discussing them in class) before we face them on exam day. Professors would sometimes fire a hypo or two at us during class discussion. But that?s not quite the same as being given a complex fact pattern in writing ahead of time and being asked to analyze it carefully. Second, I wonder if students would be able to focus more carefully on what makes for a solid legal analysis of such a hypo if they could ? for one day each week ? clear everything else off the table and focus for a day **entirely** on solving legal problems instead of absorbing new material. One thing I?ve found as a teacher is that when students have new cases in front of them, their focus is naturally on reading, memorizing, and understanding these cases. The subsequent task of applying those new holdings to unfamiliar scenarios tends to be postponed until later in their study time, and they sometimes never get to it before class. Finally, to the extent at least some hypos raise issues from earlier in the semester, they might give students a chance to practice (and teachers a chance to provide guidance) in a skill that otherwise likely gets short shrift during the semester ? namely, issue spotting. After all, in a typical (non-experimental) Con Law II class, students don?t have to guess to much about the issues we?ll be covering on a particular day: When the syllabus says we?re covering school speech, and the casebook readings for the day are from the section entitled ?school speech,? chances are the issues we?re looking have will have a lot to do with school speech. The issue-spotting challenge is more significant, of course, in an exam fact pattern where the whole class is fair game. So why not give students challenges of this sort to practice with throughout the semester?

That?s the logic. The major down side I can think of is that 2 out of 3 classes a week not be enough time to cover all we have to cover (especially in Con Law II). I suppose there?s also the question of where to get a good supply of suitable hypothetical fact patterns ? one that will fill 1/3 of the entire semester. Not many casebooks are geared to this approach (although there are certainly a few with lots of hypotheticals to practice on), but I suspect if there was enough demand, someone in the world of legal education will meet it (and to some extent, certain legal aid series, like the Examples & Explanations series, already do). While I haven?t yet had the time to set aside class periods for ?case free? days (I?ve typically taught twice a week, not three times a week), I did regularly create and distribute hypothetical fact patterns to think about ahead of time the last time I taught Con Law II, and found that this wasn?t unduly burdensome. Has anybody actually conducted this kind of experiment, or some variation on it?