What law school can teach high school: Part II
March 16, 2013 § 3 Comments
In a recent post, I talked about the effect of our YouTube culture and noted that Jesuit schools — following the direction set by the Jesuit Secondary Education Association — are striving (or ought to strive) to become institutions that teach students to “learn how to learn.” The alternative is to be a school that conveys a static, non-dynamic body of knowledge, which is to say, an empty ruin.
Curriculum models reflect this. One popular model of curriculum development, known as “Understanding by Design,” conceives of learning as involving both content and skills. Content is crucial, but it is the “skills” part that is most relevant to “learning how to learn.” For example, my students can memorize the events of Jesus’ death and resurrection, they can really know the content, but they need to develop a transferable skill: the skill of interpreting scripture (which contains a subset of skills), so that they can read another, unfamiliar passage in the Bible and come to know what it means.
In considering what it means to “learn how to learn,” I proposed law school as an example of this kind of education and said I would follow up with more specifics. Trusting that readers will not be horrified by the prospect of a bunch of little lawyers emerging from high school, below I address this question: What are the methods that a high school might borrow from law school? There are a number of things to say, but here I will talk about two big concepts: (1) training in research and (2) distinguishing authority
Training in Research. With few exceptions, lawyers do not know off the top of their head how the law applies to a particular situation. They know general matters, but a minor change in facts can lead to a different legal analysis. So lawyers must search for cases with facts similar to what the client presents. When not searching for cases, lawyers are often excavating the vast geography of federal and state statutory law. The training for this searching occurs in law school. By the time someone graduates, a student has committed so much time to looking up sources, these skills easily transfer into other areas. Although this is daunting at first, it later empowers: far from being ancillary, the principles of research are a framework for eliminating ignorance.
For example, when I was in practice, I was once assigned a memorandum on the Multidistrict Litigation Panel (MDL) — basically a special federal court where certain cases are consolidated. I never studied the MDL in law school, and in practice I didn’t know what cases to look for to guide my recommendation to the partner. I needed an aerial view. So I did what I was taught: I found a general introduction to the topic, read about the origins and history of the MDL, consulted surveys of the major cases, and then located those cases to begin more particular research. Rather than searching aimlessly, law school taught me how to identify the issue, find the proper authority, and then work from there.
Despite the importance of research, high school almost never teaches it. Students get it here and there, but it’s not the focus of a single course which is then reinforced throughout the four years (in law school, an entire semester is dedicated to legal research and legal writing). In high school, we need to teach students how to research, how to overcome their unknowing: how to clarify and define issues and and find the proper resources through trustworthy means. We need to talk to them about search engines and search results, and especially about how to understand how Google and other programs filter content.
Authority. Connected to research is the concept of authority. There are few things more vital in law. The basic idea is that not every source is relevant or essential. You have to listen to proper authority. For example, if you’re in a state court on a state issue, you’d focus on the state supreme court as the controlling authority — not a federal court, and certainly not another state’s decision. If you’re researching the constitutionality of abortion, you have to first look at the recent cases from the U.S. Supreme Court, not to statistics from the latest poll. If you have two cases that seem to touch on the same facts, you have to ask: Which courts decided the case? Which year? Has one case been overruled? Does one not apply in this particular situation? This process is what makes lawyers analytical, inclined to srutinize everything and make distinctions. As a young associate, I was always asking myself, “Have I missed something? Is there another source, a better case? Has something been invalidated, overturned, or overruled?” In one particularly complex case involving a contract our client had made with an Indian tribe concerning a casino, I had to teach myself some of the basics of Native American law and figure out how tribal courts related to state and federal courts. There were, in some sense, competing authorities, and the law wasn’t necessarily clear on which court systems had ultimate authority.
High school students need this skill badly. Right now, most students turn to Google to learn things they don’t know. They don’t weigh authority. For them, I think the very idea of authority is vague, if not unknown. Many, perhaps a majority, of students don’t view sources of knowledge hierarchically, but rather, horizontally. And why shouldn’t they? If they can enter “graphic design” into a YouTube search engine and find a video that teaches them precisely how to do it, what would propel them to spend any time scrutinizing the source, wondering about credentials or the education of the instructor? It was effective: what other validation is needed?
This success, though, can work against them. So inclined do they become to trust initial results, they can become unmindful of the waste that floats on the web. The success they have with graphic design may not work when browsing about Jesus or about a topic susceptible to differing interpretations. For example, they can Google “industrial revolution” and find out a great deal about that time period. But if asked to consider the question, “Was the industrial revolution a period of progress?” we take on a knottier matter. A number of inquiries follow: How do we understand progress? Who are the authorities on progress? How do we treat the rival perspectives of the magnate, the poet, the priest, and the factory worker? Whose perspective matters?
These questions, of course, can be illuminated somewhat through online searching, but we know right away that these questions require a convergence of expertise. So teachers have to talk about authority: what distinguishes a good website; what makes for an authoritative article or essay; what publishing venues are likely to be most trustworthy — why, for example, a book on Jesus written by a theologian published by Oxford University Press is likely to have more credibility than a rant on Jesus from Richard Dawkins.
There is, of course, much more, but since I’m already over 1000 words I’ll stop here and save additional thoughts for Part III.
Posted by Matt Emerson.