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The Legal Methods Group is a Listserv discussion group comprised of over 300 law professors, lawyers and judges in the United States and abroad. The group shares the common interest in promoting the understanding and use of professional techniques and methods in interpreting case law and statutes. Many of the professors in the group teach a basic first year course called Introduction to Law, Legal Process, Legal Methods, or the like. "Traffic" on the Listserv is light. A problem may be posed for input from the group, or an interesting case or article alerted to the group. All members of the group may post messages and respond to those of others. If you are interested in joining, send the following message to <listserv@listserv.temple.edu> subscribe legal-methods <your e-mail address> <your full name> What follows is a more elaborate description of the content of Legal Methods taken from Richard B. Cappalli, The Disappearance of Legal Method , 70 Temple L. Rev. 398-405 (1997). II. THE SUBJECT OF LEGAL METHOD A thumbnail sketch of Legal Method will be helpful to readers from the many law schools where the subject has not been taught. The reader must first understand that Legal Method does not concern itself with the principles, doctrines and rules comprising a jurisdiction's substantive law in a specific field or in toto. It does concern itself with the methodology employed, principally by courts, to create, elaborate and apply that substance. Think of a mechanic and her tools in constructing a machine. The completed product is like the rule; its components are legal vocabulary, concepts, definitions and principles; the worker's tools and knowledge of their use are analogous to method. The tools can be used to construct or dismantle, to add on or downsize. In tracing the development of Legal Method in seventeenth and eighteenth century England, the forefather of American juridical methodology, Harold Berman and Charles Reid defined the subject of their study as "a systematic body of knowledge generated by the law itself, defining its functions and the ways in which it operates." They further explained the conscious nature of this development:
Some of the methodological tools can also be thought of as "rules about rules" or "meta" rules. As an example of the above distinction, let's pretend that in Jones v. Jones a state high court has adopted the tort doctrine of assumption of risk, the doctrine now taking its place among the state's tort rules, principles and policies. What Legal Method teaches is not Jones itself but the ideas circulating around the creation and application of Jones. It teaches that the case is now a "precedent" with the quality of "law," as bounded and defined by the methodology employed by the legal profession, which is identical in each state except Louisiana where the civil law tradition is found. Knowledge about that methodology is gleaned from state and federal court precedents and practices, the latter being part of the legal culture of each state as taught in its schools, conveyed in its offices, and utilized in its courts. Another typical subject of Legal Method is the complex of understandings that the court which created Jones acted properly, that is, within its legitimate powers in issuing the precedent, even though lawyers might be hard pressed to finger the precise sources of that authority. Similarly, Legal Method would have much to say about whether the high court acted competently in issuing and writing up Jones, that is, by applying professionally acceptable methods and techniques such as its uses of authority, methods of reasoning, analysis of policy factors, definition of issues, and treatment of adjudicative fact. How Jones should be applied or not applied ("distinguished") in future cases is yet more material of Legal Method. Courses which teach this material typically include three components: case law, statutory interpretation and administrative process. While Hart and Sacks' ambitious project at Harvard went deeply into the political and legislative processes and even dealt with the interaction of the private sector and legal machinery, the other Legal Method coursebooks focused on the judicial role in creating case law, interpreting statutes and reviewing acts of administrative agencies. Critical to all these materials is an understanding of the proper role of courts in the American legal system and this necessitates, of course, comparative insights into the institutions of agencies and legislatures. The basic functions of each lawmaking body and its interaction with the others is core Legal Method material. The processes by which law is created in the three forums, and elaborated and applied by courts and agencies are subjects of Legal Method. Along the way students acquire time-honored techniques for extracting law from cases, determining the weight of authority, forming issues, distinguishing law and fact, understanding the materiality of fact, reading statutes with sophistication, and so forth. At the end of this section I have created an inventory of matters covered in Legal Method courses. My own course starts with the detailed analysis of four short but meaty appellate opinions from different fields. Ostensibly students are learning briefing techniques and starting to acquire legal vocabulary and procedures. But line-by-line analysis of the opinions, combined with background readings on the American legal system, generates preliminary understandings about: the need for legal principles to generate specific case results; the distinction between a court's decision and the rule behind it; the style of legal reasoning; judicial uses of authority; the source and employment of case facts; formation of case holdings (both broadly and narrowly) by identifying and characterizing material fact; identifying and weighing dicta; the procedures which brought an issue on above and the impact of those procedures in defining the appellate task; distinctions between stare decisis and res judicata; the nature of policy facts and their uses by appellate courts; the distinction between "policy" or "legislative" facts and adjudicative facts; and the sources judges use to acquire such information. This is complicated, confusing and sophisticated material for entering and even advanced students. The material must be taught repeatedly throughout the semester and always by the study of primary authority. The cases in Legal Method texts are lightly edited so that an understanding of real law can be acquired and the full juice extracted from judicial opinions. Making matters more complicated is the imperative need to teach the jurisprudence girding the meta-rules of judicial process and the methods of creating, elaborating and applying law. As a simple example, it is impossible for students to understand fully the nature and proper utilization of dicta without having a developed concept of the function of courts in the American legal system in contrast with the roles of legislatures and agencies. The challenge for the Legal Method teacher is to teach continuously and systematically on multiple levels: jurisprudential, conceptual, definitional, methodological, procedural, linguistical and analytical. My Legal Method course proceeds to a microscopic examination of five early employer-employee cases involving dangerous workplaces and the doctrine of assumption of risk. Some colleagues, unsympathetic to Legal Method, are quick to note that assumption of risk is obsolete doctrine in many states. Precisely so! This enables students to observe legislative reform by way of comparative negligence and workers' compensation statutes. And, of course, jurisprudence and methodology can be taught from obsolete, anachronistic cases just as well as from the current motifs popular in "substantive" courses. We wrap up the employer-employee case line with an appellate argument applying those cases to a hypothetical problem crafted by Mishkin and Morris. Now the students become doers, struggling to calculate their best precedents, to maneuver around the worst, and to advance sound policy arguments. Chapter 2 of On Law in Courts is a magnificent treatment of the fundamentals of case law development, utilizing a series of privacy cases. Many are the lessons, including constant reiteration of the methodological themes which started to be developed on "day one." The better students ultimately come to understand that those ancient, weird New York "private letter" cases continue to have vitality and currency a century and a half later. Chapter 2 contains classic, full-bodied opinions like Roberson v. Rochester Folding Box Co. and Pavesich v. New England Life Ins. Co. We Legal Method teachers, unconstrained by the need to cover substance, can luxuriously dwell on these masterpieces, exploring the judicial art in full and asking multiple questions about philosophy, precedent, policy, principles, rules, holding, dicta, overruling, rhetoric, argumentation, and other fundamentals. Chapter 2 later moves to a series of eleven Kentucky privacy cases. Students see an ordinary high court developing and applying the common law in ordinary ways. This is their likely fare in future years. As usual, the cases are edited lightly so students can learn from full judicial products. I culminate the section with a practice exam. This year's test concerned a modern privacy issue: employer monitoring of employee performance. Students are challenged to apply the string of privacy cases in a new context, once again calling upon their ability to synthesize case law, to determine the weightiest precedents, to reason by analogy, to choose between arguing from language in the precedents or arguing from their facts or their holdings or their reasons. My final exam is yet another learning opportunity. I send the students home for a few days with a problem and a string of Pennsylvania precedents. They must apply their methodological skills to materials and issues they have never seen before. The appellate courts of each state provide ample material for this purpose. Case law I have used in the past covered topics like prenuptial agreements, attorney malpractice in settlements, assumption of risk, and pre-attachment hearings. Compare the rushed issue-spotting, doctrine-spewing, fact-matching exam experiences in other courses. Mishkin and Morris teach the legislative process by means of "classic cases" and elaborate notes. These On Law in Courts authors emphasize the misleading verbiage in cases about legislative "intent" and focus the students' attention on searching for the legislature's preferred solution had it thought of the problem before the court. The chapter surveys the full gamut of resources available to a court, conceived as the legislature's junior partner. Modern theorists challenge whether that is the correct question and whether the judicial role is so modest. But unlike modern legal theorists Mishkin and Morris do not pretend theirs are the only perspectives and the recommended methods of interpretation the exclusively correct ones. Rather, characteristic of this genre of Legal Method materials, what is gathered and advanced is typical judicial thinking and method -- the type of material which practicing lawyers need to know in order to construct winning arguments in court. Few are the cases won by advancing the theories concocted in the Harvard Law Review's lead article; many are won citing and utilizing the principles of statutory interpretation utilized in leading Supreme Court cases. Mishkin and Morris teach about the use and misuse of statutory text, verbal clues from other parts of the statute or other statutes, the role of statutory purpose and its interplay with text, the use and misuse of canons of construction, the "plain meaning" doctrine and all its defects, the values and problems of legislative history, and the relative weights of diverse pieces of such history. I teach from these materials idiosyncratically. My goal is to prepare students to think on their own. The immediate goal is to get them ready for the final exam which finds them back at home with a problem, a statute and a stack of legislative materials, all involving a subject totally fresh to them. Their job is to identify the statutory issues, formulate them professionally, and utilize the statutory text and history to resolve them. The long-term goal is to capacitate them for a future in which ready-made solutions are not handed to them. To do this, I treat each case in the book as a statutory problem to be solved afresh by the class. The court opinions and the adjoining authors' notes serve only to provide the information we need to do our own independent, full-scale analysis. Weening the students from the court's reasoning into their own is laborious, confusing work but necessary to set them free. This process produced some interesting results this past semester. A Florida workers' compensation case, treated casually by the Florida Supreme Court and even by Professor Mishkin and Morris, turns out to be rich in interpretive challenges. The maximum solution, one which was most faithful to statutory text and purpose, was considered neither by Florida's high court nor by the textbook editors. In the Caminetti case, famous for its exposition and use of the "plain meaning rule," the class reframes the case by fresh analysis. Whether Caminetti's conduct traveling to Reno with a mistress was "debauchery" turns out to be the sensible question under the statute, not the "immoral purpose" issue actually debated in the courts. Even a case like United States v. American Trucking Ass'n, so thoroughly analyzed by the majority and dissenting opinions and by the professors offers up, each semester, multiple new points of analysis generated by students' thinking. Indeed, American Trucking takes three full classes to teach when the materials are plumbed for evidence of meaning and when each piece of "evidence" examined for probative value and weight. Only through such microscopic examination of complex cases can students acquire the tools necessary to a sophisticated statutory practice. When we finish the section on statutory interpretation, few hours typically remain to address the administrative process. To cram this material into four or five class hours, I have tried a nutshell, a book for foreign lawyers, a college text, a collection of leading cases, and just giving up. This year I plan to experiment with Hart and Sacks' Problem 1, The Case of the Spoiled Cantalope. But I know that the lack of time will foil me again. I obviously can only outline the teachings of these Legal Method texts and courses, but I would like to descend briefly to a level of greater detail. The theme of this article is that the current generation of American law students is being deprived of a body of critical knowledge, debilitating its ability to function with sophistication in a world of courts, legislatures and agencies, of precedents, statutes and regulations. A simple suggestive listing of what they are not being taught may sharpen my theme. I particularly urge law professors who think Legal Method is taught "pervasively" to consider whether the themes listed below are covered (be honest!) in their own courses.
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