Analyzing Cases and Statutes

February 16th, 2013 / By

Whatever else we teach in law school, most professors and lawyers agree that we need to teach students how to analyze cases and statutes. Lawyers must be able to read those key products of our legal system; analyze their meaning; synthesize their rules; apply the rules to new situations; and recognize ambiguities or open questions.

Why do students have so much trouble with these tasks, even in the third year of law school? These are difficult tasks, but they’re hardly insurmountable. Talented graduate students should be able to grasp them in less than three years. The answer, I think, is that we don’t teach these skills nearly as well as we assume. If we really wanted to teach students to analyze cases and statutes, we would adopt different methods. Here are some of my thoughts on that:

1. Modern courses in Legal Writing explicitly teach students how to analyze and synthesize legal materials, but doctrinal courses rarely do. The typical doctrinal course expects students to learn these skills simply by trying until they get it right. Without explicit instruction or individual feedback, students who get the wrong answers in class (or are mystified by their classmate’s correct answers) don’t know where they are going wrong.

2. The right answers in a doctrinal class usually require knowledge of the doctrine–not knowledge of how to deduce that doctrine from a case or statute. Students who are struggling for answers, therefore, usually turn to doctrinal study guides; they rarely seek additional help in analyzing and synthesizing legal materials.

3. Students learn what we test. Although we may say that our doctrinal courses teach students how to analyze legal materials, we rarely test those skills directly. How many doctrinal courses give students a new case or statute to analyze during the final? The Multistate Performance Test does that on the bar exam, but we rarely do it in law school. Our doctrinal courses test students on doctrine and issue spotting (within a defined doctrinal area), not on analyzing or synthesizing legal materials.

4. Thirty-five years ago, students might have had to analyze and synthesize in order to learn the doctrine and issue-spotting tested on exams. When I attended law school (1977-80), Gilbert’s outlines were sold discretely out of a single student’s locker. They weren’t very good, and there were no other study guides on the market. Today, each subject boasts a half dozen or more study guides–many of them quite good. Websites like Outline Depot allow students to exchange outlines keyed to an individual professor’s class. I’ve looked at the outlines for my Evidence class and, again, they’re pretty good. If we test students on issue spotting and doctrine, then it makes sense to study the doctrine and issues that the professor stresses in class. It’s not necessary to analyze and synthesize cases or statutes.

5. Today, when the doctrine is readily available, we tell students that they should read all of the cases and statutes for their doctrinal courses because that’s a good way to refine their lawyering skills. But that’s such an unrealistic path that students quickly tire of it. Many casebooks include just fragments of cases or statutes, so the students learn little about analysis. If cases are drawn from multiple jurisdictions, students don’t learn real synthesis; they learn to synthesize a blended rule from cases handpicked by the casebook author.

Most important, no practicing lawyer would proceed as we suggest. Close analysis of cases and statutes take significant time; a practicing lawyer would save that time for when it is necessary. For established doctrine, the lawyer would rely upon treatises, other authoritative summaries, or her own accumulated knowledge. The lawyer would read only the newest cases and statutes (those that have not yet been fully analyzed) or the ones with potential ambiguities related to her case.

Students quickly grasp that the law school way of learning doctrine, by reading a case for almost every point, is unrealistic. It’s also tedious and unnecessary, so they don’t do it. In my experience, upper-level students read assigned cases or statutes very lightly–if at all. They know that the bottom line holding will be most important for class discussion and the exam; they also know that a quick read, class notes, or a study guide will provide that information most of the time. If the case is a more complicated one that requires close reading, they’ll learn that in class when the professor embarrasses someone through socratic questioning–and the professor will eventually reveal the nuances.

In other words, I think we discourage students from flexing their analytic skills by demanding that performance when it’s not necessary. If we saved case and statutory analysis for the materials that demand close scrutiny, students would be more likely to engage in that process and learn from it.

The number of cases and statutes requiring close scrutiny varies by subject matter. Constitutional law requires close reading of more cases than Evidence does. (I’ve taught both courses, so speak from experience there.) Some code courses require almost daily analysis of code sections, but very little case analysis. We should be careful, though, in assuming that all of our subjects require daily case or statutory analysis; many of them don’t. If we want to hone analytic skills in our doctrinal classes, we could do so more realistically by requiring those skills only for the material that demands it.

6. If we are serious about honing case and statutory analysis in doctrinal courses, we should be willing to give more individual feedback–or to create online modules to do that. Listening to the professor question another student is not a very effective way to learn close analysis. Instead, we could require every student to complete online exercises related to key cases or statutes. Using fairly rudimentary software, we could ask every student to (a) highlight case language that expresses a court’s holding; (b) highlight language that expresses ambiguities or openings for future distinctions; (c) answer questions about how hypothetical problems might be resolved under a case or statute; and (d) point to the specific language supporting conclusions about those hypotheticals. In each case, the software could tell the student what she had gotten right or wrong.

In class, we could discuss more advanced points about these cases or statutes, knowing that each student had read the underlying source closely enough to answer the required questions. We could also discuss points that many students missed, since the software could aggregate those responses. And we could examine the novel insights that some students might have generated. E.g., perhaps one student saw ambiguous language that the professor missed in creating the exercise.

In sum, I think we have a long way to go if we aim to teach case/statute analysis and synthesis in our doctrinal courses. Currently, we teach primarily doctrine in those courses–and there are more efficient ways to teach doctrine than through the case method. If we really focused on teaching analysis/synthesis in some courses, we could teach those skills more efficiently as well.

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  • Jack Graves

    I wholly agree with your observations in this post, which
    should not be surprising in view of my ongoing work on a primary Contracts text
    that follows the approach you suggest. However, I think there is another
    distinct, though somewhat related, point worth making.

    It always astonishes me that lawyers feel compelled to
    search for “cases” on legal issues that are clearly and unequivocally answered
    by the express language of a statute. Sure, cases may be useful in addressing
    points on which the statute is unclear, but too few lawyers focus on the statute,
    itself, first. The problem, of course, is that we have so “overdone” the case
    method of instruction—even when it comes to teaching statutory material—that the
    lawyer’s knee-jerk response is to go straight to caselaw.

    This tendency within the academy was perfectly illustrated
    recently on the Contracts listserve, where a faculty member posted a query
    asking for good U.S. cases to use in teaching the CISG. The CISG is, of course,
    a statute. Moreover, the U.S. courts are notorious for all too often doing a
    pitifully inept job at interpreting and applying this statute (likely due, in
    at least some part, to the ineptitude of the lawyers arguing the case). If
    there was ever a statutory body of law that begged to be taught in some way
    other than extracting rules from (poorly) decided cases, this is it. In fact,
    it can be taught quite effectively by reading the statute, engaging in a
    comparative analysis vis-à-vis analogous provisions of UCC Article 2, and
    applying the CISG (or, comparatively, UCC Article 2) to well-crafted
    hypotheticals designed to illustrate both the similarities and differences
    between the two statutory formulations.

    To be sure, teaching students to read, analyze, apply, and
    distinguish cases is a crucial skill. However, it is far from the only lens
    through which we can and should teach law. And, in many instances, it is far
    from the best manner of doing so.

    Jack Graves

    • DeborahMerritt

      Excellent thoughts, Jack. In the clinics I teach (prosecution and criminal defense), I’m amazed at how resistant some students are to reading the statute. Crimes are governed by statute! Sometimes there’s an ambiguous word that the courts have interpreted, but we always have to start with the statute. On the other hand, I have to say that the students dig in pretty quickly once they realize that a live person’s liberty is on the line. The experience has taught me that (a) a concrete problem will engage students more quickly in reading a statute, and (b) a real person behind that problem will push attention to an even higher level!

      What do you think of the idea of using technology to push students through statutory analysis? Responding to a problem online, by identifying the correct statutory language and answer to a series of questions, might be one way to engage students in the statute and make sure they have answered at least basic hypos before coming to class. With a good program and graphics, this might be quite engaging. Do you have any experience with that?

      • Jack Graves

        Deborah, I like the idea of online practice sets for use prior to class. I share your view that class is far more productive when we provide better class prep tools. To that end, I try to provide far more answers to the questions presented in the reading. However, the risk is that a student, knowing this, won’t try to answer the question, but will simply wait for the answer.

        I have not tried your online approach before, but will likely do so. I can see some value in setting this up with very basic questions that are easy to answer if the student has prepared for class, but only if the student has prepared. Have you done this yourself? It seems to me that this would be most effective if the quizzes “counted,” in effect, giving easy points for class prep, but imposing a potential penalty as a deterrent to those who might not do so.

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