The Pedagogy of Problem Solving:applying Cognitive Science to Teaching Legal Problem Solving

• Publication year: 2022

45 Creighton L. Rev. 699. THE PEDAGOGY OF PROBLEM SOLVING:APPLYING COGNITIVE SCIENCE TO TEACHING LEGAL PROBLEM SOLVING

THE PEDAGOGY OF PROBLEM SOLVING:APPLYING COGNITIVE SCIENCE TO TEACHING LEGAL PROBLEM SOLVING

LARRY O. NATT GANTT, II(fn*)

I. INTRODUCTION

Over the last five years, the legal education system has faced a new call for instructional transformation as legal academics and law school regulators forge a fresh debate over how law schools should educate their students.(fn1) Books such as the Carnegie Foundation's Educating Lawyers and Best Practices for Legal Education, published by the Clinical Legal Education Association, ignited much of this recent discussion.(fn2) The American Bar Association ("ABA") then fueled the debate as it undertook a comprehensive review of its Standards for Approval of Law Schools, including the standards relating to the law school curriculum.(fn3)

Legal education has traditionally focused on instructing students how to "think like lawyers," but this recent discussion has placed increased emphasis on other instructional goals, including emphasis on how law schools should teach their students to be effective "problem solvers."(fn4) Although thinking like a lawyer has always involved, at its core, problem solving, law schools and legal education regulators are increasingly highlighting the development of problem solving skills in students as an explicit instructional goal of legal curricula.(fn5) Standard 302 of the ABA Standards and Rules of Procedure for Approval of Law Schools covers curriculum and currently provides that law schools "shall require that each student receive substantial instruction in . . . problem solving."(fn6) The proposed revisions to Standard 302 add that law schools shall establish "learning outcomes" for their students and that one of these outcomes shall include "competency as an entry-level practitioner in the . . . professional skills of . . . problem solving [among others]."(fn7)

One important step in this developing emphasis occurred when Harvard Law School, the founding institution behind the traditional case-method instructional model, instituted significant reforms to its curriculum in 2006.(fn8) Among other changes, the school adopted a first-year course currently titled "Problem Solving Workshop," which focuses on "complex problem solving" and allows students to "work on a complex problem (or problems) beyond the bounds of any single doctrinal subject, explored through simulation and team work."(fn9) This cur-ricular change recognizes a significant shift from the traditional case-method model; and other law schools have adopted, or are considering, similar changes to emphasize problem solving and skills development in their curriculum.(fn10)

In fact, since the 1970s, legal education has experienced enormous growth in the number of courses devoted to teaching law students practical skills, like legal research, oral advocacy, and negotiations.(fn11) Many of these skills courses include instruction in problem solving, particularly many of the first-year "lawyering" courses, which teach skills such as creative problem solving.(fn12) Law schools also instituted clinical programs in order to provide opportunities for students to apply their analytical skills in a real-life context.(fn13) Many of these clinical courses include explicit instruction in problem solving.(fn14) Similarly, many law schools have instituted academic support programs ("ASPs") that emphasize teaching skills like problem solving that make students successful in law school and in their future careers.(fn15) In sum, a survey of curricular offerings at ABA approved law schools reveals that 113 schools, or 56.5% of schools approved to confer the J.D. degree, now make explicit reference to "problem solving" in their course or program descriptions available online.(fn16)

Criticism of the traditional case method of instruction is not new. Lawyers, even legal academics, often complain that law schools do not adequately prepare students for the daily realities of law practice.(fn17) According to Emily A. Spieler, Dean of Northeastern University School of Law:

The case method's claim to fame was that it taught people how to think like a lawyer in terms of critical analysis and understanding the way in which the judicial process resolves issues, but it falls pretty far short of actually training people to know how to be a lawyer.(fn18)

Similarly, Stephen J. Friedman, President of Pace University and former Dean of Pace Law School, has written:

The classical paradigmatic relationship between legal education and training to be a lawyer is simple: the most important function of law school education is to teach its students to think like lawyers, and law firms will do the rest. I do not gainsay the importance of learning to think like a lawyer. At the same time, what is ordinarily meant by "thinking like a lawyer" is a mode of analytical thinking that does not include a host of other purely intellectual skills that are important parts of the armament of a successful lawyer.(fn19)

Other legal educators have further underscored that the recent emphasis in legal education on the development of students' practical skills has overlooked a needed emphasis on developing the underlying intellectual skills central to legal problem solving.(fn20)

Indeed, if legal education is to educate students in how to be expert legal problem solvers, it must do more than teach doctrine because future lawyers must be self-learners as they solve the legal problems they encounter in practice.(fn21) Legal instruction in skills, in turn, should concentrate on cognitive skills like problem solving, not just practical skills like writing or oral advocacy, because the cognitive skills are foundational to the others.(fn22) Moreover, teaching important skills builds students' self-confidence, and research has shown that law students' self-confidence enhances their academic performance.(fn23)

Several legal scholars have discussed problem solving and its relevance to legal education.(fn24) In much of this discussion, scholars have offered an expansive definition of the skills law students should develop in order to solve legal problems.(fn25) Many have used the term "creative problem solving" to stress how solving clients' problems often requires non-legal and multidisciplinary approaches.(fn26) Others have presented broad approaches to problem solving that are intended to apply in various contexts, legal and otherwise.(fn27) What is not comprehensively analyzed in these discussions is the heart of legal problem solving skills, the analytical and critical thinking skills that make up the cognitive components of thinking like a lawyer.(fn28) Such cognitive components include linear thinking, searching for coherence, crafting arguments, attending to detail, assessing relevance, perceiving ambiguity, dissecting thought, seeing others' perspectives, and logical thinking.(fn29) In the language of educational and cognitive psychologists, what is overlooked is the basic "procedural knowledge" that is important to solving legal problems.(fn30)

In this effort to equip students with the skills needed to be expert legal problem solvers, legal educators should learn from educational and cognitive psychologists' extensive examination of what it means to be an "expert" in any discipline. Experts in every discipline are characterized by the following attributes: "large, organized schematic networks within a particular domain of expertise, choosing efficiently from a large repertoire of useful strategies, quickly constructing a detailed integrated mental model of a problem, performing skills in a highly automated fashion, and carefully monitoring the difficulty of problems and one's ability to solve problems."(fn31) Such research has also demonstrated that experts pass through three stages in their acquisition of expertise: knowledge accumulation, knowledge integration, and automation and tuning.(fn32) Law schools have historically focused on the first stage.(fn33) Further examination is needed, however, on how law schools can improve their instruction in stages two and three.

In order to analyze how law schools can best teach legal problem solving, this Article draws upon the volumes of research in cognitive and educational psychology on problem solving and upon the hundreds of student evaluations since 2002 of Regent University School of Law's Summer Academic Success Program and Academic Orienta-tion.(fn34) This Article operates from the assumption that legal education is, at least in significant part, about teaching students how to solve legal problems.(fn35) From this assumption, this Article first considers the research on how problem solving skills can be taught in a way that enables students to transfer the skills to other contexts. This Article specifically looks at law school and undergraduate studies that support the contextualized teaching of problem solving skills. This Article next considers the extent to which problem solving instruction hinges on students' doctrinal knowledge. In the analysis, it discusses studies that suggest that legal educators must provide students with a firm foundation in doctrinal knowledge, also called "domain knowledge,"(fn36) before those students can most effectively learn problem solving skills. This Article then considers the role "deliberate...