The Strange Case of the Case Method

June 29th, 2018 / By Deborah J. Merritt

The case method is legal education’s signature pedagogy. Law professors point to the method with pride, and that pride has considerable foundation. In theory, the case method accomplishes at least five pedagogic goals:

1. It demonstrates that law is not static; law evolves through judicial interpretation. On some topics, students also see how the law evolves through legislation and administrative regulations.
2. It teaches students how to read and synthesize judicial interpretations. Depending on the subject, students also learn how to read statutes and harmonize them with judicial opinions.
3. It prepares students to advocate for changes in the law–primarily in the courts, but with some approaches that can be used with legislators and other decision-makers.
4. It develops critical thinking skills (careful reading, analogical reasoning, identification of patterns and distinctions) that are transferable to many other contexts.
5. It instructs students on the doctrinal principles discussed in the cases and accompanying statutes.

Can the case method accomplish all of these goals–especially when it is used in a large classroom with a single end-of-semester exam? I doubt that the method ever achieved as much as it claims, except perhaps for the highest achieving students in a classroom. Today, the method has been quietly subverted to accomplish primarily the fifth goal: instructing students on doctrinal principles. Law schools stake their value on teaching the other four cognitive skills listed above, but we deliver less of that learning than we believe.

Students Learn What Teachers Test

“Will this be on the test?” Professors hate that question. We want students to experience the joy of learning, not to study exclusively for the test. But cognitive science demonstrates that testing is essential to learning. Humans don’t retain knowledge or skills that they passively experience; they need to try out what they’ve learned, stumble, fall, and try again. And we all respond to incentives. How many professors willingly devote significant time to professional activities that won’t be rewarded through either salary increases or colleagues’ esteem? Students, similarly, study skills and knowledge that will enhance their grade.

The final exams given in case-method courses have always suffered an uneasy relationship with the five pedagogical goals listed above. When I taught first-year Torts, I devoted most of my classroom time to the first four goals of the case method. I stressed law’s uncertain nature, close reading of cases, careful synthesis, and advocacy. I viewed myself as teaching the skill of critical thinking rather than specific doctrinal principles.

I confess, though, that I tested more doctrinal knowledge than critical thinking. I never gave the students a new case (or series of cases) and asked them to interpret those cases. Only twice did I administer a take-home exam that gave the students time to thoughtfully analyze the cases they had studied during the semester or to advocate effectively for a new development of the law. (I abandoned the take-home exam because both students and colleagues complained that it interfered with the pacing of other first-year exams.)

I tested my Torts students as I had been tested–and as most law professors continued to test. I devised clever fact patterns that would require them to quickly spot issues, recall doctrinal principles, and hurriedly apply those principles to the facts. My students didn’t have time to perform any of these tasks thoughtfully, as a lawyer examining a new client problem would do. The word torrents unleashed by my questions demonstrated knowledge of doctrinal principles, the ability to identify issues quickly, and rapid composition. Those skills are useful for lawyers, but they are poor cousins of critical thinking. Speedy issue spotting is a type of analogical reasoning, but it is not the careful analysis that clients need.

Embracing multiple-choice questions only aggravated the problem. I tested more doctrinal knowledge, but even less critical thinking. Yes, multiple-choice questions require some critical thinking, but they rarely increase the amount of critical thinking on an exam. Instead, these questions appeal to professors for their doctrinal coverage, easy grading, and relationship to the bar exam.

It Gets Worse

All of this has been true for decades: Professors pursued all five goals of the case method in class, but tested primarily on doctrinal knowledge and quick analysis. Some students faithfully read and analyzed cases throughout law school, but others turned to study aids and borrowed outlines. The latter made a rational calculation that classes might purport to teach critical thinking, but they rewarded doctrinal knowledge and rapid issue spotting.

This was bad enough, but the situation has grown far worse. The number of statutes, judicial opinions, and other legal sources grows each year. With so much doctrine to cover, there’s less time for reflection and critical thinking. The bar exam requires students to memorize that burgeoning doctrine, prompting some professors to drill on doctrine rather than teach critical thinking. Faculty specialization may also contribute to our doctrine mania; tenure-track faculty like thinking (and teaching) about the doctrinal nuances in their focus areas. They know how to think critically themselves, but often lack the pedagogical tools to teach that skill to others.

The biggest shift, however, stems from the way in which students use study aids. Many faculty teach as if it’s still 1980, when study aids were scarce, poorly written, and pedagogically illicit. (At my school, a classmate sold them furtively from his locker.) In my next post, I will review Quimbee and other contemporary study aids. Faculty need to understand how these resources have revamped the way in which law students prepare for class–and how these aids have narrowed the pedagogic effectiveness of the case method. We can’t (and shouldn’t) eliminate study aids, but we need to understand their impact on legal education.