THESE RULES ARE MADE TO BE BROKEN DOWN: TEACHING STUDENTS THE ART OF DECONSTRUCTING RULES OF LAW
JEREMIAH A. HO
Despite its often contended (and oft-contentious) meanings, legal academics and educators still resort to the now-entrenched phrase,“think like a lawyer,” to describe the goal of law schools in educating their students. But even a brief deconstruction of the phrase brings its varied interpretations to light: What does it mean to “think like a lawyer”? It might easily imply an existing difference from thinking like a doctor, a banker, or a representative from another profession. But within the law, does “think like a lawyer” exclude thinking like a judge or a legislator (both roles comprising those who might have been lawyers in another life)? And which lawyer for that matter? Erwin Chemerinsky? Oliver Wendell Holmes? Perry Mason? An average, reasonable lawyer? A “bad” lawyer? To attempt to tease out the “definable” components of the phrase reveals the phrase’s imprecision, and the difficulties in using “think like a lawyer,” as a proscribed law teaching goal.
Borrowing from the notion established by notable law professors, Michael Hunter Schwartz, Sophie Sparrow, and Gerald Hess, that the goal of teaching law students should be to allow students to accomplish effective legal problem-solving rather than thinking like a lawyer, this Article focuses on the teaching of one particular skill needed for such problem-solving: how legal thinkers methodically and effectively approach reading, comprehending, and critiquing the law. Language comprises the nuts and bolts of the law, but law school curricula generally do not focus on sharpening the elevated levels of perception needed for legal thinkers to internally process case holdings, blackletter rules, and statutes for whatever tasks await them. In fact, the traditional case method of teaching law students to “think like a lawyer” often only briefly and abstractly addresses the components of legal reading and then expects students to master the skills out on their own, which poses increasing problems in light of the noted decline of literacy and comprehension skills in the recent adult population in the U.S.
This Article addresses an approach to teaching legal literacy skills through deconstruction from both within the law and as an import from post-modernist thought. By doing so, this Article explores how teaching one method of rule reading and comprehension—termed “rule deconstruction”—to first-year law students introduces them to both formalist and anti-formalist techniques to approaching the language of the law and equips them with the heightened sensitivity that legal thinkers must embrace for dealing with legal reading. First the Article will first present a method of teaching “rule deconstruction” in its prima facie meaning to introduce a formalist perspective to breaking down complex legal rules and legislative materials in class that can link rule comprehension to student outlining skills and exam performance. Then the Article will take “deconstruction” in its post-structuralist incarnation and harness its postmodern tendencies into an anti-formalist method for dealing with the language of rules that can take student comprehension of rules into a more critical and theoretical realm. All of this is done with the goal of equipping the law student with both a hands-on and theoretical engagement with rules that challenges them to be both better legal thinkers and problem-solvers as well.
From the SelectedWorks of Jeremiah A Ho, September 2010
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