What We Teach When We Teach Legal Analysis

By Susan A. McMahon. Full Text.

Traditional legal education, especially in the first year, 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.

The traditional approach often leaves students blind to the injustices baked into law and unprepared to become lawyers who create change. Law schools thus need to teach not only traditional legal analysis, but also how to disrupt and how to create. First, they 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.

But disruption alone is not enough. Such an approach helps students see the problems in law, but gives them few tools for fixing it. 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 and exercises for bringing out these themes in the classroom and on exams.