SSRN: From Grimm to Glory: Simulated Oral Argument as a Component of Legal Education's Signature Pedagogy

http://ssrn.com/abstract=1132436

Lisa McElroy
Drexel University - Earle Mack School of Law



Indiana Law Journal, Vol. 84, No. 2, 2009
Drexel College of Law Research Paper No. 2008-A-05

Abstract:     
The past two years have been a period of landmark transformation in legal education. With the issuance of the Carnegie and Best Practices in Legal Education reports, law schools and law professors have re-begun the essential process of analyzing and transforming legal pedagogy. This widespread re-examination of the law school curriculum has yielded two important changes in legal education: first, law schools - including those in the top tier - have begun radically to amend their curricular goals and structures; and, second, legal scholars have begun to turn their attention to the theory and implementation of better legal education. As Carnegie and Best Practices note, this nascent metamorphosis in scholarly thought about legal education has the potential to transform both the law school and the law practice experience, as well-grounded pedagogy will remove the barriers to learning that some law students have historically experienced while better preparing them to practice law.

This article represents one of the first concrete responses to Carnegie and Best Practices. In proposing that law professors regularly use oral argument exercises to supplement traditional Socratic dialogue, it meets head on the concerns expressed by Best Practices and Carnegie that over-reliance on the Langdell method neither mimics law practice nor nurtures student learning. It also responds directly to the suggestion in both reports that simulation exercises may yield better legal analysis and knowledge. Finally, this article advances a novel theory directly related to the objectives and conclusions of the Reports; namely, that for experienced advocates and law students alike, practice oral argument may be a starting point, rather than a mere end point, for teaching, learning, and executing the fundamentals of legal analysis. In the style of the transcribed classroom conversations of the Carnegie Report, it discusses and demonstrates by example a simulation exercise designed for professors to use in introducing this teaching methodology. The exercise, based on seven fairy tales used as precedent cases, provides a familiar, non-threatening technique for students to learn about rule synthesis, weight of authority, analogy and distinction, and theme through oral argument.

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