Functionalizing First-Year Legal Education: Toward a New Pedagogical Jurisprudence
New England Law | Boston
affiliation not provided to SSRN
UC Davis Law Review, Vol. 25, P. 21, 1991
Professor Chester, with his assistant Scott Alumbaugh, attempt in this article both to diagnose problems with what is being taught in the first-year curriculum and to suggest how this doctunal package could be better structured. They suggest teaching the bulk of what now constitutes the courses of Contracts, Torts, and Property within a single course called Civil Obligation. This course would functionally rearrange tort, property and contract doctrine. For example, if the doctrines of promissory estoppel in contracts, misrepresentation in torts, and home builder's warranties in property all serve the same underlying purpose (e.g., imposition of liability because of justified reliance), then each would be taught as examples within "Reliance" section of the course.
In addition to Reliance, Chester and Alumbaugh discuss other organizing principles such as Status, Duty, Bargain, and Excuse for Changed Circumstances, arguing that much of Contracts, Torts, and Property could be taught more coherently in this fashion than as presently structured. They also propose placing greater emphasis on statutory and regulatory material at the expense of traditional common law analysis, in recognition of the growing pre-eminence of these forms of law in the modern Regulatory State.
As Chester and Alumbaugh envision it, teaching these "private law" courses by organizing principles would both de-mystify current doctrinal analysis and eliminate needless redundancy, thus empowering students. At the same time, teachers under the revised system would be better able to experiment with new forms of classroom instruction. Thus, functional organization of doctrine would make humanization of the process of legal education easier. In turn, this process would be informed by a rigorous discussion of doctrine which uses these organizing principles to focus ultimately on questions of fairness and justice.
Date posted: September 21, 2000