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Is Mazur the new Langdell? The strange trajectory of interactive law teaching
Published online by Cambridge University Press: 02 January 2018
Abstract
This paper examines the cross fertilisation of ideas about interactive teaching from law to physics and back again. In particular it considers the origin, legacy and merits of Langdell's teaching model and the way it has been used by a physics professor, Eric Mazur, to support arguments for what is commonly known as the ‘flipped classroom’. It examines the similarities and differences between Langdell's and Mazur's approaches and the adoption by some law teachers of Mazur's model. It also considers how this phenomenon bares out a thesis advanced by educationalist Lee Shulman that when it comes to teaching, both professional and liberal disciplines are pursuing many of the same ends. Finally it considers the implications of adopting Mazur's approach for the discipline of law and issues some words of caution.
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- Copyright © Society of Legal Scholars 2017
References
1. G Orwell A Clergyman's Daughter (London: Penguin Books, first published 1935, 2000 edn) p 211.
2. Ibid, p 220.
3. Ibid, p 215.
4. Ibid.
5. Ibid.
6. Ibid, p 235.
7. In Britain pressures to show tangible signs of progress are on the increase with the introduction of the Teaching Excellence Framework (TEF). See Department for Business, Innovation and Skill, Higher Education: Success as a Knowledge Economy –’ White Paper, 16 May 2016, Available at https://www.gov.uk/government/publications/higher‐education‐success‐as‐a‐knowledge‐economy‐white‐paper.
8. Several of these arguments are canvassed in this paper. They have been made across university disciplines. For some other recent examples in law see AH Shee ‘In search of a modern Confucius for effective teaching in law: a trial project to promote interactive learning in Taiwan’ (2013) 8 NTU L Rev 299; RK Thyfault and K Fehrman ‘Interactive group learning in the legal writing classroom: an international primer on student collaboration and cooperation in large classrooms (2009–2010) 3 J Marshall L Rev J 135.
9. These arguments also coincide with the growth of the social sciences, with educationalists turning to both the social and natural sciences for support. For example, see the considerable body of work of educationalist Lee Cronbach who drew from experimental psychology. One of his earliest works was LJ Cronbach, Educational Psychology (New York: Hardcourt, Brace, 1954). See also LJ Cronbach ‘Heredity, environment, and educational policy’ (1969) 39 Harvard Educational Review 338.
10. Shulman has published prolifically. He explains the project of reconstructing educational research in LS Shulman The Wisdom of Practice (San Francisco: Jossey‐Bass, 2004) pp 18–46. See also L Shulman ‘Knowledge and teaching: foundations of the new reform’ (1987) 57 Harvard Educational Review 1. A full list of his publications are available at http://www.leeshulman.net/publications/. Thanks to the anonymous reviewer for suggesting this line of inquiry.
11. His definition is applied in the Carnegie Foundation for the Advancement of Teaching Report: W Sullivan, A Colby, J Welch Wegner, L Bond and LS Shulman Educating Lawyers – Preparation for the Profession of Law (San Francisco: John Wiley, 2007) p 23.
12. LS Shulman ‘Pedagogies of uncertainty’ (2005) 91 Liberal Education 18, 19–20.
13. Sullivan et al., above n 11, p 23.
14. Shulman, above n 12 at 18.
15. Ibid.
16. Ibid at 18–19.
17. Ibid.
18. Ibid.
19. Ibid at 19.
20. Sullivan et al., above n 11, p 32.
21. Shulman, above n 12 at 22.
22. See, eg, BA Kimball The Inception of Modern Professional Education – C C Langdell, 1826–1906 (Chapel Hill, NC: University of North Carolina Press, 2009); R Stevens Law School – Legal Education in America from the 1850s to the 1980s (Chapel Hill, NC: University of North Carolina Press,1983) pp 35–72; RL Weaver, ‘Langdell's legacy: living with the case method’ (1991) 36 Villanova Law Review 517; N Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995) pp 9–64; L Kalman Legal Realism at Yale 1927–1960 (Chapel Hill, NC: University of North Carolina Press, 1986) pp 10–13; W Twining Karl Llewellyn and the Realist Movement (Birkenhead: Wilmber Brothers, 1973) pp 10– 25.
23. Kimball, above n 22, p 6.
24. Ibid p 2.
25. Ibid p 5.
26. Ibid p 4.
27. Stevens, above n 22, p 41.
28. Most references are made to the analogy he drew between a lawyer's library and a laboratory in CC Langdell ‘Address’ in Report of the Organisation of the First General Meeting (Harvard: Harvard Law School Association, 1886) pp 49–50; CC Langdell ‘Harvard celebration speeches’ (1887) 9 LQR 123, p 124.
29. Kimball, above n 22, p 5.
30. Langdell, above n 28.
31. W Keener ‘Methods of Legal Education’ (1892) 1 Yale LJ 143, 144–145.
32. See, eg, WC Chase The American Law School and the Rise of Administrative Government (Madison, WI: University of Wisconsin Press, 1982). Chase suggests that Harvard law professors engaged in a deliberate strategy to advance Langdell's model at all costs.
33. Stevens, above n 26, p 36.
34. Ibid p 52.
35. Ibid p 53.
36. Ibid.
37. Ibid.
38. Ibid.
39. CC Langdell, A Selection of Cases on the Law of Contracts (Boston: Little, Brown, 1871) preface quoted in Kimball, above n 22, p 349. Emphasis added by Kimball.
40. Ibid p 350.
41. Ibid.
42. Ibid p 351.
43. Shulman, above n 12, p 20; Sullivan et al., above n 11, p 47.
44. Sullivan et al., above n 11, pp 56–57. Shulman above n 12, at 22–23.
45. There is a large body of literature advocating for clinical legal education in law schools. At times attention and funding is given to initiatives to promote clinical legal education in law schools but it remains a marginal part of the law curriculum. In Australia, for example, clinical legal education was introduced first at Monash University in 1975 and small injections of funds have been made since that time: see J Giddings ‘A circle game: issues in Australian legal education (1999) 10 Legal Education Review 33. See also articles from a symposium on professionalism in legal education in (2008) 17 Griffith Law Review and F Bloch (ed) The Global Clinical Movement – Educating Lawyers for Social Justice (Oxford: Oxford University Press, 2011).
46. For an exposition of this tendency to conceptualise and teach the law in the absence of ethical considerations as well as some interesting suggestions for change see M Del Mar ‘Beyond text in legal education: art, ethics, and the Carnegie Report’ (2010) 56 Loy L Rev 955.
47. In the Carnegie Report the authors explain that ‘the ability to think like a lawyer emerges as the ability to translate messy situations into the clarity and precision of legal procedure and doctrine and then to take strategic action through legal argument in order to advance a client's cause before a court or in negotiation’. They also point to the effectiveness of the method by quoting from a Law School Survey of Student Engagement Study published in 2005 where it is said that the majority of students reported that they had learnt ‘quite a bit’ or ‘very much’ about thinking critically and analytically. Sullivan et al., above n 11, p 54 (‘thinking like a lawyer’), p 76 (quoting from the engagement study).
48. Two of the most significant thinkers in this area in the 20th century were Karl Popper and Thomas Kuhn.
49. This argument was famously made by Jerome Frank: J Frank, Law and the Modern Mind (Gloucester, MA: Peter Smith, 1970; original published in 1930).
50. CL Barzun ‘Common sense and legal science’ (2004) 90 Va L Rev 1051, at 1052. Barzun provides an interesting account of how legal scholars appealed to science for both political reasons (those who he describes as the ‘externalists’) and from a desire to demonstrate law's intellectual integrity (those who he describes as the ‘internalists’). He argues that ‘the rise of legal science cannot be fully understood unless it is seen at least in part as a response to a genuine epistemological crisis that had cast doubt on humans’ ability to acquire knowledge about the world’. p 1055.
51. Shulman, above n 12, p 22.
52. Their initiatives are embodied in WN Eskridge Jr and PP Frickey (eds), Henry M Hart Jr and Albert M Sacks The Legal Process – Basic Problems in the Making and Application of Law (Englewood, NJ: Westbury Press, 1994).
53. See D Kennedy ‘Henry M Hart Jr and Albert M Sacks’ in D Kennedy and W W Fisher III The Canon of American Legal Thought (Princeton NJ: Princeton University Press 2006) p 243.
54. WN Eskridge and PP Frickey ‘The Making of the Legal Process’ (1994) 107 Harv L Rev 2031.
55. D Derham, ‘Report on Overseas Leave – 28 May 1954’ in P Ayres (ed) David Derham: Talks on Universities, History, and the Law (Melbourne: Oryx Publishing, 2009) pp 31–32.
56. Although in England and some parts of Australia and other commonwealth countries emphasis has also, and sometimes predominantly, been placed on learning legal doctrine through didactic instruction. This was a point made by Australian law professor David Derham. Ibid. p 33.
57. In one sense this is an old argument. For example, throughout the first half of the twentieth century the Universities of Oxford and Cambridge in teaching law essentially ignored its professional orientation. See D Sugarman ‘Legal theory, the common law mind and the making of the textbook tradition’ in William Twining (ed), Legal Theory and Common Law (Oxford: Basil Blackwell, 1986) p 26.
58. D Kennedy ‘Legal education and the reproduction of hierarchy’ (1982) 32 J Legal Educ 591. For a recent reexamination of this work see N Lacey ‘Legal education as training for hierarchy revisited’ (2014) 5 TLT 596. See also MJ Horwitz ‘The conservative tradition in the writing of American legal history’ (1973) 17 Am J Legal Hist 275; Stevens, above n 22, p 51.
59. Parker has examined some of the claims concerning the teaching of law and psychological wellbeing as well as the responses. While she is critical of some of the responses in the following article she provides an extensive list of the Australian literature on the topic: C Parker ‘The “moral panic” over psychological wellbeing in the legal profession: a personal or political ethical response?’ (2014) 37 UNSWLJ 1103, pp 1136–1139.
60. This is one of the normative premises underlying Schlegel's brilliant intellectual biography of figures associated with American Legal Realism: JH Schlegel American Legal Realism and Empirical Social Science (Chapel Hill, NC: University of North Carolina Press, 1995).
61. Many legal academics have advocated that legal reasoning and jurisprudence ought to be taught in context. For a well known example see: R Cotterell The Politics of Jurisprudence – A Critical Introduction to Legal Philosophy (Philadelphia, PA: University of Pennsylvania Press, 1989).
62. K Weiler ‘Reflections on writing a history of women teachers’ in K Weiler and S Middleton Telling Women's Lives – Narrative Inquiries in the History of Women's Education (Philadelphia, PA: Open University Press, 1999) 43, p 44.
63. I was educated in the 1990s and part of the law curriculum I studied was influenced by feminist legal thought.
64. I have spent the last four years working on a project that studies the endeavours and contributions of leading Australian legal scholars in order to better understand the discipline of law in Australia. Earlier in my career I expended a considerable amount of effort reading works that I describe as legal ‘meta‐scholarship’: see S Bartie ‘The impact of legal meta‐scholarship: love thy navel’ (2009) 18 (2) GLR 727.
65. See, eg, Schlegel's intellectual biography of Charles E Clark and William O Douglas: Schlegel, above n 65.
66. See, eg, J Schell ‘Flipping the classroom – how to turn your students’ worlds upside down' (Paper presented at New England Board of Education, Boston, 15 October 2012) slide 14 available at http://www.mazur.harvard.edu/sentFiles/MazurTalk_1966.pdf (Schell is a member of the Mazur Group).
67. There are many different versions currently circulating on YouTube. See, eg, Eric Mazur ‘Confessions of a converted lecturer’ (YouTube, 12 November 2009) Available at https://www.youtube.com/watch?v=WwslBPj8GgI. Mazur and his colleagues continue to give numerous presentations on the topic. See a list of upcoming engagements, available at http://mazur.harvard.edu/search‐talks.php?function=future&area=8. See also http://ericmazur.com/videos.php. I attended a presentation on the flipped classroom given by Mazur at the University of Adelaide, Australia, in 2010.
68. His investigations and findings were published in a number of places. One of the earlier and most substantial publications on the topic was the following user manual: E Mazur Peer Instruction – A User's Manual (Upper Saddle River, NJ: Prentice Hall, 1997). He compiled a physics textbook that adheres to this model: E Mazur Principles and Practice of Physics (Harlow: Pearson, 2014). He has even published an article on the topic in Science: E Mazur ‘Farewell, Lecture’ (2009) 323 Science 50. Available at http://mazur.harvard.edu/emdetails.php.
69. E Mazur Peer Instruction – A User's Manual above n 68, p 4. He cites AA Halloun and D Hestenes ‘The initial knowledge state of college physics students’ (1985) 53 American Journal of Physics 1043; D Hestenes ‘Toward a modelling theory of physics instruction’ (1987) 55 American Journal of Physics 440.
70. E Mazur Peer Instruction – A User's Manual above n 68, p 4.
71. Ibid p 3.
72. Mazur, above n 67.
73. Mazur, above n 68, p 4.
74. Ibid p 4.
75. Mazur, above n 67.
76. What Mazur describes as ‘plug and chug’. E Mazur Peer Instruction – A User's Manual above n 68, p 7.
77. Ibid.
78. Ibid.
79. Ibid.
80. Ibid p 22.
81. Ibid p 10–14.
82. Ibid.
83. Ibid p 11.
84. Ibid.
85. Mazur, above n 67.
86. Ibid.
87. Ibid.
88. Mazur Peer Instruction – A User's Manual above n 68, pp 33–38. Mazur, above n 67.
89. Mazur, above n 67.
90. Ibid.
91. Mazur Peer Instruction – A User's Manual above n 68, p 18.
92. Ibid, p 30.
93. Recent examples include WR Slomanson ‘Blended learning – a flipped classroom experiment’ (2014) 64 J Leg Ed 93; P Sankoff ‘Taking the instruction of law outside the lecture hall: how the flipped classroom can make learning more productive and enjoyable (for professors and students) (2014) 64 J Leg Ed 93.
94. In the US this was made manifest in the flood of articles written in response to Jude Harry Edward's critique of university legal education: HT Edwards ‘The growing disjunction between legal education and the legal profession’ (1992) 91 Mich L Rev 34. In England the debate over the role of law schools, the need for university legal education and its relationship with the profession continued well into the twentieth century. For example, see the collection of essays in P Birks (ed) Pressing Problems in the Law – What are Law Schools For? (Oxford: Oxford University Press, 1996, vol 2). In Australia law teachers have at times had an uneasy relationship with the profession and pursued different goals: David Weisbrot Australian Lawyers (Melbourne: Longman Cheshire, 1989) p 146.
95. See, eg, one of Australia's bestselling textbooks for the beginner: C Cook, R Creyke, R Geddes and D Hamer Laying Down the Law (Chatswood NSW: Lexis Nexis, 9th edn, 2015).
96. See, eg, G Dal Pont, Equity and Trusts – Commentary and Materials (Pyrmont: Thomson Reuters, 6th edn, 2015); C Sappideen, P Vines and P Watson Torts: Commentary and Materials (Pyrmont: Thomson Reuters, 12th edn, 2016).
97. There are many examples that could be included here. See, for example, the thoughtful endeavour and advice of Professor Deborah Rhode: D Rhode ‘Teaching legal ethics’ (2007) 51 Saint Louis University Law School 1043.