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Legal Learning Method

Posted by on December 26, 2011

It Keeps the Student Thinking Amanda C. Pustilnik Amanda C. Pustilnik is an assistant professor of law at the University of Maryland Francis King Carey School of Law. She teaches criminal law, evidence, and law and neuroscience. Updated December 16, 2011, 11:19 AM “Question everything.” This maxim is radical in the original sense: Questioning everything takes us to the root of what we know and how we know it. Often, it shows us how much we don’t know and the uncertain foundations of what we thought we knew. In a world awash in information, knowing how to question and challenge our own certainties are the most important disciplines anyone can master. Question-based inquiry takes place anywhere critical thinking takes place, from corporate governance committees to kindergartens. While questioning everything sounds subversive (and maybe it is), it has a most august pedigree: Thomas Jefferson, Galileo, Buddha, Euripides and Socrates have all been credited with the phrase and the spirit of inquiry it expresses. Although Jefferson and Buddha are no lightweights, Socrates has the best claim, in my view. Rather than issuing a command to engage in questioning, Socrates developed questioning into a teaching practice. His “elenctic” method consists of asking questions – of others and oneself – until one discovers the limits of one’s knowledge or arrives at some new understanding. Radical, question-based inquiry takes place anywhere critical thinking takes place, from corporate governance committees to kindergartens. (Five-year-olds may be the original Socratics, showing us our limits with their endless “Why?”) American law schools are self-consciously Socratic. Classes start with questions, not answers. I start with “What’s a ‘crime’?” and “What is ‘evidence’?” My colleagues incorporate elenctic questioning into every aspect of our curriculum, from classes on doctrine to client interactions to domestic and foreign clinical projects. This guides students from easy certainties to appropriate inquiry as they learn lawyering skills. It keeps us honest, too, since they learn to turn around and ask us great questions! This kind of teaching and learning is hard. Our minds fill in blanks with what we expect to see — so students reading a criminal case will “remember” a gun that wasn’t there. This is natural, but dangerous. Imagine a doctor who assumes that a child’s swollen glands mean strep instead of leukemia, delaying treatment. Now translate that to law: Instead of a doctor, imagine a prosecutor. Or a judge. Life can be at stake in the law, too. Liberty and property almost always are. Challenging through questioning is the living practice of teaching critical thinking by modeling it as an instructor. It is the heart of the elenctic method. It is how we teach new lawyers to compose with the language of the law, not just how to bang out a few tunes. Topics: Education, Law, students

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