THE USE OF LEARNING JOURNALS IN LEGAL EDUCATION AS A MEANS OF FOSTERING INTEGRATIVE  LEARNING THROUGH PEDAGOGY AND ASSESSMENT

Kilcommins, Shane (2010) THE USE OF LEARNING JOURNALS IN LEGAL EDUCATION AS A MEANS OF FOSTERING INTEGRATIVE  LEARNING THROUGH PEDAGOGY AND ASSESSMENT. In: Making Connections: Intentional Teaching for Integrative Learning. .

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Official URL: http://files.eric.ed.gov/fulltext/ED538018.pdf

Abstract

In the late nineteenth century Christopher Columbus Langdell, Dean of Harvard Law School,  introduced a new pedagogy in law that was designed around Socratic teaching. Prior to this, most common law jurists had emphasised the importance of artificial, natural law reasoning which was  prone to be more subjective, speculative, value laden, and ultimately illogical (Davies, 1994, p. 110).  This new pedagogy placed law cases at the centre of students' learning, and demanded much more  from the students in terms of analysis and defence of legal explanations. In particular, it involved a  case-dialogue method, where students are called upon to recount facts, argue legal principles and explain their reasoning in the lecture hall before an authoritarian lecturer. All of this was designed  to mirror the combative realities of adversarial proceedings. So, for example, in a lecture, the lecturer  might demand of a student the facts of a case, the legal points at issue, the court's reasoning by  reference to other cases, the underlying legal doctrine or principle, and the effect that an altered fact pattern might have on the outcome.    The case method was premised on a number of propositions. First, the study of law was designed  around two scientific components: empiricism and rationalism. As regards empiricism, the raw data  of appellate cases was for the lawyer what chemical compounds were for the chemist. Students were  expected to read cases for themselves and discover and understand legal principles. The rational component was the assumption that legal reasoning must be deductive (Hoeflich, 1986, p. 120). Rigorous logical reasoning, honed through reading caselaw, was the trump concern, even at the  expense of other legal skills. Langdell phrased it in the following terms:  Law, considered as a science, consists of certain principles or doctrines. To have such  a mastery of these as to be able to apply them with constant facility and certainty to the ever tangled skein of human affairs, is what constitutes a true lawyer; and hence  to acquire that mastery should be the business of every earnest student of law. Each of  these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the  main through a series of cases; and much the shortest and best, if not the only way  of mastering the doctrine effectually is by studying the cases in which it is embodied (quoted in Schofield, 1907, p. 279).  For this purpose, the library rather than the courtroom or law office was the appropriate workshop. As  Langdell noted:  We have also constantly inculcated the idea that the Library is the proper workshop of  professors and students alike; that it is to us all what the laboratories of the university are to the chemists and physicists, the museum of natural history to the zoologists, the botanical garden to the botanists (quoted in Hoeflich, 1986, p. 120).  Thirdly, law is viewed as a closed system. Broader social, cultural, moral or political considerations  should be abandoned in pursuing these hermetically-sealed legal principles. In this way, law could be viewed as determinate, an apolitical, value-free, technocratic discipline that was divorced from practical outcomes or concerns of justice (Carrington, 1995, p. 707). Fourth, the lecture method of teaching law was to be replaced by the Socratic case method, whereby general principles of law on  particular issues would be worked out in the classroom through interaction between the lecturer and students on relevant cases (with the headnotes omitted) (Chase, 1979, p. 332). In terms of student  learning, this represented an important switch away from the emphasis on learning legal rules to an emphasis on learning legal skills (analysis, argument, reasoning, synthesis). Fifth, the  casebook, rather than the textbook, would be employed as a teaching aid in which the really  important cases in a particular field were selected and arranged in systematic sequence (Kenny,  1916, p. 187). Finally, Langdell's conception of law was court-centred, premised on case-law as the primary source and modus operandi of law (Twining, 1985, p. 12).   Gradually Langdell's case method approach became a model for most other university law  schools who valued the systematic and rigorous training that it provided. The law schools of Columbia, Michigan, Northwestern, Western Reserve University, Cornell, Chicago, Cincinnati, Stanford, Illinois, Hastings, Notre Dame, Hastings, New York and Yale all adopted the method by the early twentieth century (Kimball, 2004, p. 34; Bartholomew, 2003, p. 379). It was also employed by Australian and English professors. As Theodore S. Woolsey at Yale noted in 1924: The old way bred great lawyers. But like the caste mark of the Brahmin, the case system is the cachet of the crack law school of today (quoted in Bartholomew, 2003, p. 388).    The case method soon became the 'signature pedagogy' of legal education in most common  law countries. It was, and still is, viewed as being important in training students in the basic skills of law, especially in analysing, distinguishing and synthesising cases. It also encourages  students to trace historical precedents to their original sources, and hones their reasoning  and argumentative skills in concrete situations. It is concerned with demonstrating what the  courts would do in fact, excluding thereby social, political, theoretical and historical contexts.  This encourages students to place rules into categorical systems in order to understand law's internal point of view. The desired learning outcome emanating from the case method is that  a student will understand that law emerges from a rigorous analytical procedure called legal  reasoning. In making a science of legal reasoning, it helps to validate the law, to give it a 'structure of truth'.    There are, however, weaknesses in the Langdellian approach which undermine its  epistemological and pedagogical contribution. Its epistemological emphasis on scientific  reasoning, especially the deductive-inductive logic it adopts in respect of case law, is very  effective as a legitimation narrative, but once you scratch the surface, it will quickly be discovered that it conceals far more than it reveals. The coherency and fixity it seeks to  inculcate in law students is beset by a number of difficulties that seriously undermine its  credibility. How, for example can it account for the interpretive leeways of language? Or the belief that facts are elusive and will need to be constructed? Or the premise that our judges  are not asocial or apolitical operators but bring their own experiences and value systems to bear on disputes before them? Or the argument that law is not a seamless web which  has already logically covered every eventuality? Or the notion that law employs principles  and standards (such as the 'reasonable man', 'proximity', and 'reasonable forseeability') that  are malleable? Or the suggestion that ruptures in social, economic or cultural conditions  will require solutions and ways of legal thinking which will not be found in the static  past of previous judicial decisions? Langdellianism does not contend with such complex,  interdisciplinary issues, and consequently students do not have to contend with them. Instead,  through dogmatism, and a severe form of Nelsonian blindness, it claims that the pathway to objective 'truth' can be mined through doctrinal legal reasoning alone.   BEYOND WIKIPEDIA AND GOOGLE: WEB-BASED LITERACIES AND STUDENT LEARNING  James G. R. Cronin   INTRODUCTION  In April 2009, the Shock of the Old symposium on digital literacy hosted by Oxford University  Computing at the Saïd Business School in Oxford, engaged in teasing out current understandings of the term digital media literacy and user experiences using the Educause Horizon Report as a  departure point (Johnson, Levine and Smith, 2009). Educause is a nonprofit association whose  mission is to advance higher education by promoting the intelligent use of information technology.  In forecasting future trends, the report identifies a need to formally teach information literacy, visual  literacy and technological literacy in order to equip students for the demands of a sophisticated  global techno-culture. The symposium concluded with a fundamental question: how can information  professionals and academics promote understandings of new literacy behaviours both within and across disciplines? What follows here is an attempt to tease out some of the issues arising from putting this pertinent, yet provocative, question into action.    Characteristically, new technologies always emerge within the context of established technologies;  the new is also quickly embedded into patterns of everyday life as these technologies become  enfolded within a wider semiotic field of human communication (Crispin and Jaworski, in-press).  Educators may broadly agree that Information and Media Literacy (IML) should be included as a set of  competencies within curricula; however, current opinion on how best to enact this is divided. Some argue that new literacy skills need to engage with critical thinking across disciplines, as articulated through the concept of 'transliteracy' others argue that enactments should be disciplinary specific. Educational institutions are struggling to keep pace with the implication of technological change for literacy behaviours and are beginning consider a need to reinvigorate their roles as educators in critical awareness for a current generation where the fifteen to twenty-five year old age-group  strongly relies on peer-to-peer collaboration, drawing on collective knowledge of social networks and evaluate information strategically, but not necessarily critically.    The proliferation of unmediated information construction and access through new media is  challenging the hegemony of educational institutions. This study surveys, on a micro level, challenges  to institutional collaboration for embedding IML workshops within the humanities. These sessions,  run in partnership with librarians in the Boole Library, University College Cork, were dedicated to  the critical understanding of the Web for the disciplinary study of art history. In Ireland, it is often assumed that students are completely Web literate by the time they enter third-level education.  Broadly speaking, this assumption is tacitly accepted and generally goes unchallenged (Cronin, 2009; Cronin, McMahon and Waldron, 2009).    This chapter is presented in sections. Section two explains the method and approach adopted for  this case study within the context of the Irish Integrative Learning Project. Section three explores frameworks supporting a critical engagement with media literacy within the context of the role of information authorship which implies awareness of discursive traditions, information transmission  and knowledge transformation. Section four offers a reassessment of the role higher education  provides in mentoring the facilitation of media literacy competencies. The case study, in section  five, examines skill-sets and institutional dynamics involved in establishing and embedding media  literacy programmes. Section six explores these dynamics at a disciplinary level. Section seven  surveys the user experience of a dyslexic student as a way of illustrating how media workshops can  enhance disciplinary understanding and can potentially scaffold learning for non-traditional learners.  Section eight concludes by acknowledging a need for educators to act as mentors in the process of       facilitating the multiple skill-sets, identified in the Scholarship of Teaching and Learning, as  requirements of being fully literate in the early twenty first century.

Item Type: Book Section
Depositing User: National Forum
Date Deposited: 03 Dec 2015 21:00
Last Modified: 03 Dec 2015 21:00
URI: http://eprints.teachingandlearning.ie/id/eprint/2683

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