Why and How: Using the Case Study Method in the Law Classroom

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Photo by: Brooks Kraft

Post by: Jackie Kim and Lisa Brem

Why should legal educators use case studies and other experiential teaching methods, such as role plays and simulations, in their classes?  Hasn’t the Langdell method served legal education well these last 140 years?  Certainly creating and using experiential materials requires a different set of skills from faculty, elicits a different response and level of engagement from students, and poses barriers to implementation. The ABA’s LEAPS Project[i] has a comprehensive list of objections to practical problem solving in the classroom: materials are time consuming and expensive to create and deploy; addition of a case study or simulation to a syllabus inherently displaces other material; and there are few incentives from law school leaders to introduce this type of teaching.

Yet, the argument promoting experiential materials and techniques is strong. The 2007 Carnegie Report[ii] recommended integrating lawyering skills practice into the curriculum alongside doctrinal courses, and the ABA added simulation courses to the list of practical experiences that can and should be offered by law schools in its 2015 Guidance Memo[iii].

In a 2007 Vanderbilt Law Review article[iv], HLS Dean Martha Minow and Professor Todd D. Rakoff argued that Langdell’s approach to teaching students using appellate cases does not do enough to prepare law students for real-world problems: “The fact is, Langdell’s case method is good for some things, but not good for others. We are not talking about fancy goals here; we are talking about teaching students ‘how to think like a lawyer.’”

But does the case study method result in a higher degree of student learning? While we have not yet seen a study on the efficacy of the case study method vs. the Langdell method in law schools, research[v] from political science professor Matthew Krain suggests that case studies and problem-based activities do enhance certain types of learning over other types of pedagogy.  In his investigation, Krain compared the results of pre-and post-course surveys of students who participated in active learning with those who received a traditional lecture course. The case studies and problems that Krain used in his non-traditional classes included: case studies in the form of popular press articles, formal case studies, films, or problem-based case exercises that required students to produce a work product.

Krain found that:

Student-centered reflection, in which students have the opportunity to discuss their understanding of the case, allows both students and instructors to connect active learning experiences back to a larger theoretical context. Case learning is particularly useful for dramatizing abstract theoretical concepts, making seemingly distant events or issues seem more “authentic” or “real,” demonstrating the connection between theory and practice, and building critical-thinking and problem-solving skills (Inoue & Krain, 2014; Krain, 2010; Kuzma & Haney, 2001; Lamy, 2007; Swimelar, 2013).

[…]

This study suggests that case-based approaches have great utility in the classroom, and they should be used more often in instances where students’ understanding of conceptual complexity or knowledge of case details is critical. Moreover, case-based exercises can be derived from a variety of different types of materials and still have great utility. If deployed selectively in the context of a more traditional classroom setting as ways to achieve particular educational objectives, case-based approaches can be useful tools in our pedagogical toolbox.

For those who might be ready to try a case study, role play, or simulation, there are resources that can help.  Harvard Law School produces case studies for use throughout the legal curriculum. The HLS Case Studies program publishes these teaching materials, and makes them available to educators, academic staff, students, and trainers. Outside of Harvard Law School, links to resources for educators implementing the case study method can be found on the Case Studies Program Resources page. Listed are case study affiliates at Harvard, legal teaching and learning tools, tips for case teaching, and free case materials. Examples include the Legal Education, ADR, and Practical Problem Solving (LEAPS) Project[vi] from the American Bar Association, which provides resources for various topics on legal education, and the Teaching Post, an educators’ forum offered by the Harvard Business School where professors can seek or provide advice on case study teaching.

“… [O]ur society is full of new problems demanding new solutions, and less so than in the past are lawyers inventing those solutions. We think we can, and ought to, do better.” – Dean Martha Minow & Professor Todd Rakoff.[vii]


[i] “Overcoming Barriers to Teaching ‘Practical Problem-Solving’.” Legal Education, ADR & Practical Problem-Solving (LEAPS) Project, American Bar Association, Section of Dispute Resolution. Accessed March 16, 2017, http://leaps.uoregon.edu/content/overcom….
[ii] William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, and Lee S. Shulman, “Educating Lawyers,” The Carnegie Foundation for the Advancement of Teaching (2007).
[iii] American Bar Association, “Managing Director’s Guidance Memo,” Section of Legal Education and Admissions to the Bar (2015).
[iv] Martha Minow and Todd D. Rakoff, “A Case for Another Case Method,” Vanderbilt Law Review 60(2) (2007): 597-607.
[v] Matthew Krain, “Putting the learning in case learning? The effects of case-based approaches on student knowledge, attitudes, and engagement,” Journal on Excellence in College Teaching 27(2) (2016): 131-153.
[vi] “Overcoming Barriers to Teaching ‘Practical Problem-Solving’.”
[vii] Minow and Rakoff.

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Five Negotiation & Mediation Roleplays that can be Taught in 2-Hours or Less*

Picture of HLS Langdell LibraryFitting meaningful learning into one class period can be challenging. Below, five of our best Negotiation & Mediation Roleplays are represented that can be taught in two-hours or less.

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U.S. Defense Taskforce: Simulating the Apocalypse

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Photo used under Creative Commons Licensing  

U.S. Defense Taskforce, a newly released negotiation simulation from the Harvard Negotiation and Mediation Clinical Program (HNMCP), explores group decision-making processes in a multi-party negotiation. Lisa Dicker ’17 and Kathleen Kelly ’17 of Harvard Law School Negotiators wrote this fast-paced simulation under the supervision of Sara del Nido Budish ‘13, Clinical Instructor and Lecturer on Law at HNMCP.

The case opens when the zombie apocalypse has begun. Participants are part of a small committee in the U.S. Department of State entrusted to select the four people who will lead the effort in preparing for, surviving, and defeating the zombies. The Director of the Department of State is scheduled to hold a press conference to tell the American public who their leaders will be, and the participants’ committee has only 20 minutes to come to a unanimous decision and give the Director the four names.

U.S. Defense Taskforce emphasizes two crucial elements of multi-party negotiations: criteria and group process. First, the element of criteria is placed at the forefront of the case pedagogy. Participants have a list of seven candidates’ biographies, detailing each candidate’s age, life accomplishments, and unique qualities. Their committee’s deliberation process, as well as the debrief afterwards, challenges the participants to think through their reasons for choosing one candidate over another and what their criteria was (or wasn’t) for determining who should lead the United States.

Second, the simulation challenges participants to reflect on group process more broadly. They plunge into a high-stakes conversation without being provided any structure, agenda, or distinct roles on the committee. Their decisions about whether or not to divide roles amongst their group, who is given speaking time over others, and what they would do if time expires before they reach a decision are all representative of the kinds of questions that arise in all sorts of group decision-making processes.

This simulation can be completed in 1 hour, including setup and a debrief based off of a set of questions provided in the teaching note. Participants can be divided into groups of 6 to 8, but it is possible to run the simulation with groups of a different size. Many groups can participate in the simulation at the same time, provided that the groups come together for the debrief after their 20 minutes of negotiating.

For the full description, please visit the HLS Case Studies Blog.

To purchase the U.S. Defense Taskforce, please visit the HLS Case Studies website.

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New Product: Mortgage Crisis Call

Newspapers with headlines referencing the financial crisis

Image used under Creative Commons Licensing 

The financial crisis of the late 2000’s has just hit and more than 10 million homes have been foreclosed upon in the matter of a few years.

The American public is outraged and demanding that politicians take action. Much of the blame for the crisis has fallen on banks, especially the five banks with the highest percentage of U.S. residential mortgages: Ally (formerly known as GMAC), Bank of America, Citi, JPMorgan Chase, and Wells Fargo (collectively known as “The Five”). In an effort to hold The Five accountable, a multi-state working group comprised of all fifty state attorneys general, state Banking Commissioners, and the Department of Justice have decided to pursue action against them.

Participants in Mortgage Crisis Call play the roles of prominent attorneys general from around the country, including U.S. Attorney General Eric Holder, who are leading the charge to hold The Five accountable. This special committee is scheduled to hold a group phone call, the purpose of which is to agree on a strategy for addressing the banks. They will need to decide whether they want to pursue unified litigation, and if so, what form this will take.

The call is an exercise in balancing competing interests and complex power dynamics in a multi-party negotiation. Each of the participants has a distinct set of interests, often enmeshed in their political calculations and their histories of working on this issue, and these interests come together in their attitudes about how to settle with The Five.

Importantly, the exact role of each participant on the call is left up to the group. For a variety of reasons, several members of the special committee believe that it is their role to facilitate the call. Participants have an opportunity to explore the ways in which a facilitator or facilitators can shape a multi-party negotiation, particularly in a situation where there is no designated official facilitator. Moreover, it comes as a surprise to them to find out that there are in fact others who plan to facilitate. This element of surprise exacerbates power dynamics and heightens the need for clarity about roles and responsibilities on the call.

Mortgage Crisis Call is designed to be conducted as a conference call, giving students a chance to practice facilitating through that medium. The simulation can also be done as an in-person multi-party negotiation. The ideal group size is six participants to fill all six of the roles. It is also possible, though not ideal, to eliminate one or two of the non-Facilitator roles and run the simulation in groups of fewer than six participants. For a robust debrief, it is preferable to have at least two different groups negotiating the case. It is suggested that instructors allot 90 minutes for the negotiation and 60 minutes for debriefing. The Teaching Notes also help those new to the case design debriefs to ensure a rich learning experience.

To download Mortgage Crisis Call, visit HLS Case Studies. Educators and staff of non-profit institutions are eligible to receive review copies free of charge.

 

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YNMCP and Labor Conditions at A&M Apparel: A New Dispute Systems Design Role Play

New Product: YNMCP

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Alonzo Emery at Renmin University of China Law School (Photo via Harvard Law Bulletin)

In a new negotiation role play from the Harvard Negotiation and Mediation Clinical Program (HNMCP), the world’s leading clothing company is a client in need of dispute systems design.

A&M Apparel, headquartered in the prosperous United Commonwealth, relies on supply chain factories across the globe. Recently, an international non-governmental organization launched a campaign to shame A&M and other multinational fashion companies, alleging egregious workers’ rights violations in their supply chains. The new CEO of A&M has asked the Yarvard Negotiation & Mediation Clinical Program (YNMCP) to recommend a design for a new grievance system at the Wolfcom Factory – an overseas factory particularly plagued by assembly line worker unrest.

YNMCP is a clinic at Yarvard Law School that serves the dispute systems design and conflict management needs of clients working in a wide range of industries. Two to three students are assigned to the A&M project. They must: 1) identify as many key stakeholders or stakeholder groups as possible, 2) understand the client’s needs and manage the client’s expectations, 3) develop an interview protocol for interviewing stakeholders, 4) facilitate focus groups, and 5) consider any ethical challenges the project might raise.

The exercises in this case offer students the opportunity to practice skills that they will use as dispute systems designers. Identifying stakeholders, conducting interviews, facilitating focus groups, managing client expectations and dealing with potential ethical challenges are all directly applicable to working with clients and on a variety of dispute systems design projects. The exercises were tailored specifically to the needs of students enrolled in the Harvard Negotiation and Mediation Clinical Program (HNMCP) who, in addition to their clinical projects for real-world clients, take the 1-credit Negotiation and Mediation Clinical Seminar as a co-requisite course. This structure allows students to practice skills with the YNMCP case before actively using those skills in their real-world projects.

There are five core learning units in YNMCP, each corresponding to critical skills for effective dispute systems design. Although designed to be used together in sequence, each of these learning units can be purchased individually and used as a stand-alone exercise. The recommended sequencing of exercises assumes deployment over four weeks in an introductory Dispute Systems Design course. The exercises can be used in classes of varying size, but a class of eight or more students is ideal.  The YNMCP Teaching Notes provide thorough guidance on how to run each exercise as well as listing the materials, people, and time required for each exercise.  The Teaching Notes also help those new to the case design debriefs that will ensure a rich learning experience.

To download YNMCP, visit HLS Case Studies. Educators and staff of non-profit institutions are eligible to receive review copies free of charge.

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New Product: Allen & Overy: Surviving the Banking Crisis (A) and (B)

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Photo used under Creative Commons Licensing, Allen & Overy London Headquarters

Leadership in Law Firms: Hidden Hierarchies

Harvard Law School | The Case Studies is happy to announce a brand new case study based on the exciting research conducted by Professor Laura Empson on leadership in professional service firms.  Read more about the case study below, and check out the Allen & Overy (A) and (B) case study product pages.

Post by Professor Laura Empson of Cass Business School and Senior Research Fellow in the Center on the Legal Profession, Harvard Law School

What inspired the case?

I won a major grant from the UK government in 2009 to study leadership dynamics in professional service firms. In professional service firms, concepts such as ‘leaders’ and ‘followers’ don’t necessarily make much sense. Traditional hierarchical power dynamics are replaced by more ambiguous and negotiated relationships amongst professional peers. As a result, leading professionals is phenomenally difficult, yet there is very little rigorous academic research into this phenomenon. So I won funding to study leadership dynamics across a range of professional firms and I am now writing a book based on this research.
David Morley, Senior Partner, heard me present my ideas at an event I was organizing at the Centre for Professional Service Firms at Cass Business School in London. He came up to me immediately afterwards and said: “We want you to study us”.

What challenges and opportunities did the research process present?

The leadership of Allen & Overy gave me fantastic access to interview their partners and consult their records. Partners trusted me sufficiently to talk really freely. Yet I found the research process tremendously difficult. I have been studying professional service firms for over 20 years but I really struggled to make sense of what I was hearing – things seemed to be so confused and unclear. Then I realized that this lack of clarity, this ambiguity, was my key research finding. The leadership dynamics didn’t make much sense to an outsider because they were so ill-defined and informal, but they made absolute sense to the people who were embedded within them.

What is the case really about?

The case has two themes embedded within it: constructing ambiguity and navigating ambiguity. It shows how an extended leadership group of about 30 people can work together through a process of “intuitive mutual adjustment”, which enables them to function very effectively within a profoundly ambiguous authority structure. When they are confronted with the global banking crisis of 2008, the leadership realise they will have to substantially reduce the size of the partnership. The firm has never done anything like this before and the leadership has no authority to do this. The case maps the process the leaders follow over a five month period, to identify colleagues to be “culled” and to persuade the partnership to accept their decision.

What are the major takeaways in the case?

First, the case encourages students to question some of their fundamental assumptions about leadership, power, and governance in partnerships. Management text books and business schools emphasise the importance of creating clarity around roles, responsibilities, and reporting lines. The case explains how, under certain conditions, clarity may not be necessary. It emphasises how individuals with the interpersonal skills to understand and navigate an ambiguous authority structure can exercise considerable informal power.
Second, the case explains how it is possible for leaders of partnerships to take action when they lack the authority to do so. In Allen & Overy the partnership restructuring is made possible because the leaders are able to mobilise the hidden hierarchy within the firm. Students are encouraged to consider the hidden hierarchy within their firms. Are they part of it? If so, how do they mobilise it? If not, how do they join it?

How did the students react to the case?

The first time it was taught at the Leadership for Lawyers course at Harvard Law School a couple of Allen & Overy partners happened to be attending the course. They loved the case, which is great because a law firm’s rank-and-file partners will always be a case study’s toughest critics.

Professor Laura Empson is Director of the Centre for Professional Service Firms at Cass Business School and Senior Research Fellow in the Center on the Legal Profession, Harvard Law School.

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Product Highlight: Margaret Hamburg and the FDA

photo by U.S. Dept. of Health & Human Services

post by Nour Soubani, HLS Case Studies Assistant

Almost every day, the Food and Drug Administration makes it into mainstream media news in one way or another. Whether it is about birth control, a cure for muscular dystrophy, or a recalled food product, the FDA is a key part of public health debates.

The case Margaret Hamburg and the FDA features the 2012 disagreement between the Commissioner of the FDA and the Secretary of Health and Human Services that ultimately resulted in the decision to distribute Plan B contraceptives, otherwise known as the morning after pill, over the counter. The case highlights the tension between the FDA and the Secretary of Health and Human Services and allows participants to experience the complexities of the decision making process from the point of view of FDA commissioner Margaret Hamburg. In a telling interview in March 2013 with the Yale Undergraduate Journal of Politics, The Politic, Hamburg said:

“I am very committed to running an agency where science and data drive our decision-making. But we are, of course, operating in world where there are many issues and concerns swirling around us, and where the decisions we make have very significant ramifications. We work closely with many stakeholders, including Congress. It is always a challenge to make sure that the best possible science is the one guiding our work—but that is a challenge we must meet.”

This past January, Hamburg visited Harvard Law School. During her talk, she reflected on her time as FDA Commissioner, and the successes and challenges she faced in that role. One article in Harvard Law Today covering the event reads, “Hamburg discussed how she learned to negotiate with the Washington establishment as commissioner. Early on, she said, she learned about the need for more transparency, predictability, and partnership.”

The questions raised by this case are similar ones about the protection of public welfare in the midst of a complicated relationship between the government and independent regulatory bodies. By reading not only about the case of Plan B contraceptives, but about the history of the FDA in general, students will be able to explore the nature of this relationship from all sides and think about effective ways to divide power between the entities involved.

In Part A of the case, students will discuss important thematic questions like:

  • What is the role of the regulator? The administration?
  • What are the qualities of an effective regulator?
  • What happens if and when their objectives conflict?
  • How are tensions in power reconciled? How might they be?
  • How are decisions made?
  • When, if ever, should science trump policy? When should policy trump science?
  • What gets in the way of science or policy prevailing as they should?

In Part B, students will be able to read about the press releases that came out of the case as well as discuss the future of the FDA and its relationship with the government.

The case of Margaret Hamburg and the FDA will allow students to put themselves in the shoes of both scientists and policymakers attempting to answer difficult questions about the integrity of protecting public welfare. It is a complex and intriguing case that covers many relevant issues in science and politics today.

The case and supplementary materials can be found on the Harvard Law School | The Case Studies website. Educators registered on our website will have free access to the teaching manual for this case.

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Product Summary: Corporate Purchasing Project: How S&P 500 Companies Evaluate Outside Counsel

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The Harvard Law School Center on the Legal Profession’s (CLP’s) mission is to make a significant contribution to the modern practice of law by increasing understanding of the structures, norms, and dynamics of the global legal profession. In pursuit of this mission, CLP conducts rigorous, empirical research on the profession, implements new content and methods of teaching legal professionals at all stages of their careers, and fosters bridges between the global universe of legal practitioners and the academy. To learn more, visit the Center’s website.

Post by Bryon Fong, Assistant Research Director (HLS Center on the Legal Profession), and Nour Soubani, HLS Case Studies Assistant

“How are relationships between clients and service providers evolving—and why?” The HLS Center on the Legal Profession’s publication entitled “Corporate Purchasing Project: How S&P 500 Companies Evaluate Outside Counsel” is based on more than four years of empirical research aimed at answering exactly that question. The publication is drawn from a combination of quantitative and qualitative data on how large U.S. corporations make law firm hiring and assessment decisions, including a large-n survey as well as information gleaned from over 160 interviews with chief legal officers. The publication aims to address four main topics:

  1. How do companies evaluate the quality of legal service providers when making hiring and legal management decisions?
  2. Under what circumstances do these companies discipline or terminate their relationship with their law firms?
  3. How do these companies evaluate whether to follow “star” lawyers when they change law firms?
  4. In what ways do these companies manage the intersection between law and public relations?

As an example of the sort of in-depth, empirical findings presented in the publication, the research found that general counsel rely heavily on their own experience when making hiring decisions—fully 97 percent of general counsels (GCs) told us that the most important source of information in making hiring decisions is personal knowledge (either their own experience with the specific outside lawyers or law firm or their personal knowledge of the lawyers’ or law firm’s reputation). Three-quarters talked with colleagues at their own firm, and half with peers at other firms. Yet only 17 percent consulted public sources of information such as rankings or court records. As a result, and as interview data corroborates, the ways in which GCs hire outside counsel has not yet materially changed.

It is interesting to note that, for those who did consult outside rankings, prior experience became a less important criteria, while firm size, geographic reach, and commitment to diversity assumed more significance. External factors like these may gain in importance when selecting new clients if industry-wide rankings become more trusted and well known, but for now, relationships still dominate.

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This is just a snap-shot of the sort of practical takeaways the publication offer. The full publication provides a fascinating and in-depth look at the thought process of chief legal officers, and provides a dataset that is challenging and important for the legal profession as a whole.

Want to learn more? Check out the Center on the Legal Profession’s digital magazine, The Practice, including the forthcoming May 2016 issue on The Changing Role of the Global General Counsel. This exciting new issue contains previously unreleased data from the Center’s survey on how in-house legal departments in India, Brazil, and China make purchasing decisions—and how these findings related to U.S. trends.

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NEW PRODUCT: Tiantong & Partners: Transforming Litigation in China

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post by Dr. Lisa Rohrer, Executive Director of the Case Development Initiative at Harvard Law  School

CDI is pleased to announce the publication of its first case on the Chinese legal market: Tiantong & Partners: Transforming Litigation in China, co-authored by Ashish Nanda, Director of the Indian Institute of Management Ahmedabad (IIMA) and HLS Distinguished Executive Education Fellow and Lisa Rohrer of CDI. The case, jointly published with IIMA, depicts an unusual Chinese litigation firm that while small in number of lawyers, is big on ambition. The founder of the firm, Jiang Yong, is a former judge of the Chinese Supreme Court and founded the firm with the goal to improve the litigation system in China. Many Chinese lawyers, Jiang says, do not want to become involved in litigation and the Chinese public views it with suspicion, yet it is an important component of the justice system. “When a society develops following the principle of rules of law,” he says in the case, “litigation as a practice must also develop.”

But Jiang does not stop with simply representing clients in important cases before Chinese courts. What makes Tiantong an interesting case study is how Jiang is pursuing his larger mission to improve the Chinese litigation system. By leveraging technology such as social media (Tiantong’s WeChat app connects lawyers across the legal profession and the firm estimates that 50% of all practicing lawyers in China were followers) and knowledge management tools, Tiantong is a fascinating blend of old and new China. The lawyers, who are situated in a traditional Chinese residence in the heart of Beijing, sit just a short walk away from an airy, modern loft that houses programmers and technicians, working on cutting-edge technology designed to improve knowledge sharing across the profession through case research tools made freely available to other practitioners.

The case provokes interesting questions about the evolution of litigation in China, with potential implications for other emerging legal systems. In addition, it asks readers to consider how far a small firm can take a platform designed to level the playing field for litigators across the country while still remaining profitable and focused on serving its clients. With the Chinese legal profession rising quickly to compete with western firms, this tale of old and new provides an additional perspective on this important market and on the evolution of justice in a society of over 1.3 billion people.

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The Classroom Experience: Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case (A) and The Battle for Unocal Case Studies

Post by Logan Sawyer, Visiting Associate Professor of Law, Harvard Law School

“That class was awesome,” and “You should definitely do that again next year,” were the first things I heard from students after the two case studies I taught in two different classes, at two different institutions. The classes were core, doctrinal classes, with 40 to 60 students who had never done a case study before. Yet, those comments were representative of the overall student response.  What’s more, the cases were not just interesting: my students learned as much in those classes as they did in any class all year, both about the law and about what it means to be a good lawyer. Case study teaching, I’m convinced, should play an increasingly important role in law teaching. I know it will in my classes.

In my Legal Profession course at Harvard Law School, I taught the Aaron Swartz case as a way to cover the ethical concerns of prosecutorial discretion, and at the University of Georgia School of Law, I used three days to take my Corporations class through the Unocal case study in order to introduce mergers and acquisitions law. Both elicited more student involvement than any class all year and I’m quite sure they will be among the most memorable classes of the year.

At the core of what made the classes successful was that each case study placed students in the position of lawyers facing difficult decisions—in one how to fight off a corporate raider without counseling their clients into a violation of their fiduciary duties, in the other, how to proceed with a prosecution against an accused whose politically motivated actions many students found sympathetic—and each case also gave them a rich factual background that put their decisions in context. As a result, the students could see how abstract concepts like the duty of loyalty and serving the interests of justice mattered; how those concepts and other legal rules framed issues and raised questions. But they also saw that those rules and concepts did not provide answers.

The rich factual background allowed them to make textured arguments, develop alternative strategies, and understand the stakes of their advice and decisions. In the Unocal case, students formed small groups and fashioned defensive measures against a coercive two stage tender offer. One group even got pretty close to the self-tender strategy the Unocal board eventually adopted. In the Swartz case, students had to weigh the risks of a high profile prosecution and the potential coercion inherent in tough plea bargaining to determine how a prosecutor can best seek justice. In both cases, students were forced to not just make legal arguments, but to evaluate the risks and rewards those arguments created and then consider the implications of those risks. The students, in other words, had to be more than rule experts. They had to be lawyers. They loved it. And so did I.

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