What We Teach When We Teach Legal Analysis

50 Pages Posted: 10 Jul 2023

See all articles by Susan McMahon

Susan McMahon

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: June 28, 2023

Abstract

Traditional legal education, especially in the first year, often leaves students with the impression that law is neutral and objective, and their job, as lawyers, is to read cases, pull out rules, and sift facts into legal categories. This training contributes to a student’s sense that law is natural and normal, and, to quote Robert Gordon, “usually OK and just,” instead of invigorating her imagination as to law’s possibilities and giving her the tools to push for legal change.

To combat these effects, law schools must teach not only the usual legal analysis skills, but also promote a pedagogy of disruption and creation. First, professors should disrupt students’ sense that law is neutral and objective. Students need to see legal rules not as fixed and natural, but as flexible and value-laden. They need to see opinions not just as statements of what the law is, but as one vision of many possible ways law could be. A disruption legal analysis pedagogy trains students to adopt an outsider’s gaze, to unearth the bias and assumptions often embedded in the law, and to imagine other possibilities.

Second, law schools must also teach students how to create, how to use the traditional tools of legal reasoning to achieve change. This approach accepts the rhetoric, structure, and go-to moves of legal thinking as it exists, acknowledges their failures and weaknesses, and aims to arm students with the skills to birth new rules, cement new baselines, and create new approaches to legal problems.

Teaching with both strategies in mind will help the scales drop from students’ eyes—they will be clear-eyed about the system’s flaws and failings—while still preparing them to operate within it and change it from the inside. This Article encourages professors to incorporate disruption and creation into their legal analysis pedagogy and provides specific strategies for bringing out these themes in the classroom and on exams.

Keywords: Legal analysis, legal skills, legal education, legal pedagogy

Suggested Citation

McMahon, Susan, What We Teach When We Teach Legal Analysis (June 28, 2023). Minnesota Law Review, Vol. 107, No. 2511, 2023, Arizona State University Sandra Day O'Connor College of Law Legal Studies Research Paper No. 4494293, Available at SSRN: https://ssrn.com/abstract=4494293

Susan McMahon (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Box 877906
Tempe, AZ 85287-7906
United States

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