New Product: Sanctuary Cities: The Legislative Hearing

 Statue of Liberty.

Photo used under Creative Commons Licensing, Statue of Liberty.

Q&A with Professor Sabrineh Ardalan

Harvard Law School | The Case Studies has published a new case study and classroom simulation developed by Sabrineh Ardalan, Assistant Clinical Professor at Harvard Law School and Assistant Director at the Harvard Immigration and Refugee Clinical Program, along with Brittany Deitch, J.D. Case Writing Fellow, and Lisa Brem, Managing Director of the Teaching, Learning and Curriculum group at HLS.

The case study includes a background note on sanctuary jurisdictions and a roles for six stakeholders who present comments and testimony at a mock legislative hearing on  a bill affecting such jurisdictions.

Our Case Studies Program staff asked Professor Ardalan about her experience developing and teaching the case study. Read her answers to our questions below, and download free copies of  Sanctuary Cities.

Why did you choose to create this simulation for your course?

I wanted the students in my immigration law class to engage with the complex legal issues presented by the current debate over sanctuary policies and was eager to facilitate a productive debate. A legislative simulation seemed like the ideal format for the class, particularly given the various legislative proposals introduced in Congress, as well as in city councils and states across the country.

What challenges and opportunities did teaching this simulation present?

The simulation allowed for both sides of the debate to have equal airtime so that students could fully understand the arguments for and against sanctuary-related policies and legislation. It was a challenge deciding what legislative initiative to use to allow students to explore the issues most fully, and we considered various bills pending at the state and federal level before making a decision.

What are the major takeaways that students will learn in this simulation?

Students will learn how to distill complicated legal arguments into clear, persuasive, and concise talking points and how to think through their strongest and weakest arguments in order to respond to questions and provide comments on testimony.

How did the students react to the simulation?

The students were very engaged both in the simulation itself and in the preparation for the simulation. They worked well in teams to develop testimony, arguments, and questions.

What would you tell (advice you would give) other faculty looking to use this simulation?

The more time you can allocate to debrief, the better. I wish I had built in additional space for a group discussion and feedback afterwards. Also, I would recommend bringing in advocates who have attended or testified at prior Congressional hearings to participate in the simulation, either by chairing the committee hearing or by commenting on the simulation and the issues presented after the fact.

Acknowledgments

I was lucky enough to have two amazing lawyers – JJ Rosenbaum, formerly the Legal Director with the New Orleans Workers’ Center for Racial Justice which led efforts in New Orleans and advocacy efforts at the Congressional hearings on New Orleans as a Sanctuary City, and Avideh Moussavian, who works on sanctuary issues at NILC – chair the hearing for the simulation, which greatly enhanced the experience for everyone involved.

 

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Strategies for consensus-building and decision-making

Sabrina Bruno and Eric Blay

This is the fourth in a series on the use of Somalia in Crisis role play in a law school course on International Humanitarian Law. Read the Introduction.

The goal of the Somalia simulation was to help bring an end to the Somalia famine quickly without compromising American national security. There were numerous disagreements between opposing interest groups that necessitated consensus-building. While members of each of the parties were behaving as rational actors, individuals’ differing objectives led them to become quickly entrenched in their assigned positions. This tended to make them lose sight of the overall goal of the meeting, which was to develop a strategy for ending the famine in Somalia.

Our team played the advisory role of the intelligence agency. Striving to help build consensus with others while serving in an advisory role was challenging. It was imperative to remain in character—advocating the priorities of the intelligence agency—throughout the simulation. Differentiating between personal opinions and the insights that our assigned character was likely to espouse was challenging, but vital. In an advisory role, it is important to be aware of the seemingly incompatible agendas held by different parties. Equally necessary is to work with participants to identify underlying interests that might provide grounds for formulating solutions that meet everyone’s objectives to some extent. While each party held different principal priorities, their overarching goals seemed to converge. For instance, a central aim of all parties was to ensure the safety of American citizens, though each group differed as to how that safety could be achieved.

Reaching consensus among the groups was a difficult task. They became immersed in their assigned character roles and tended to focus on the issues that divided them rather than emphasizing what they had in common. It seemed that all parties felt that, despite being ordered to end the famine quickly, their specific interests (i.e. legal, security, humanitarian, etc.) had to take up equal space at the bargaining table. In actual negotiations of this type one would hope that objective criteria, such as feasibility, would govern the final decisions, instead of having the final word going to the most forceful individuals who took the strictest hard-lined positions.

Allowing time for discussions amongst the representatives of the various teams was an effective strategy; it allowed multiple conversations to occur simultaneously, and created space for groups to identify similar interests as well as obstacles to reaching consensus. In comparison with the time spent having all participants met as one group, it seemed that the more chaotic intermingling of groups was much more efficient. Considerable decision-making work was done by group representatives who liaised with other interest groups to garner support for their position, or to collaborate on ideas for mutually acceptable solutions. This allowed them to present a united front to other, more ideologically opposed groups. A breakthrough came when groups accepted that compromises would have to be made by all parties. When given sufficient time to discuss amongst themselves, groups were able to create a unified plan, with the exception of concerns about fungible aid and the payment of access fees to FTOs. The result was a semi-secure and partially effective solution.

This simulation was a useful exercise for learning how human character and subjectivity influence policy-making processes. All aspects of strategy for the response to the Somalia famine were heavily influenced by the personalities and proclivities of the individuals who participated in the negotiation. The most significant thing we learned was that, in practice, the negotiation process is not ruled by objective criteria so much as the subjective views of participants. No matter what the nature of the factual scenario at hand is, it is clear that negotiation, mediation, and conciliation skills are crucial to navigating the entrenched positions of various stakeholders. Read Part 2 and Part 3.

Written by law school students Sabrina Bruno and Eric Blay as part of the Re-Imagining International Humanitarian Law course at University of Western Ontario Law School.

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Discerning the interests and priorities of diverse stakeholders

Katrina Younes, Rob Alfieri, Aaron Zaltzman

This is the third in a series on the use of Somalia in Crisis role play in a law school course on International Humanitarian Law. Read the Introduction.

During the simulation of a National Security Council (NSC) meeting regarding the 2011 Somalia Famine, we observed that the first step for building consensus between parties espousing disparate positions was to efficiently and accurately categorize the identities, key issues, and positions of the respective groups. The task of the NSC Committee Chair was to incorporate the competing views of 20 different voices, representing four distinct interest groups, and facilitate a consensus in just a few hours. While this extremely tight timeline made us nervous, the key to working effectively was the efficient management of the conversation.

One way we navigated these time constraints was by laying out a roadmap that outlined the policy points that were predicted to generate the most debate. This roadmap was developed after each team had been invited to specify which issues they believed could fairly easy garner consensus, versus the issues they felt would require further persuasion. The central aim of the NSC team, for example, was to end the famine and secure legal assurances that individuals would not be prosecuted for delivering life-saving humanitarian services to this end. This was their static position, from which they would not budge. The NSC team also identified lower-stakes positions that they were open to re-thinking—so long as their core static position was not compromised.

Once the respective views of each team had been expressed, the next task was to speak to other members of other teams to see what headway could be made.  One of the groups—which consisted of U.S. Department of Defense, Joint Chiefs of Staff, Director of National Intelligence and Department of the Treasury—chose to focus on interacting with groups whose views were not in alignment with their own in order to see if there was any room to maneuver. It was during this part of the simulation exercise that it became clear just how entrenched various teams were in their positions. Upon a return to the plenary formation, the Chair of the NSC meeting quickly identified which policies had broad general support, and which were now proving to be the most contentious.

In the final round of negotiations, it was clear that all parties agreed that the Somalia famine represented an emergency that demanded immediate action. It was also evident that the idea of a humanitarian exemption to the counter-terrorism laws had some support, particularly if it could be executed in conjunction with a Partner Vetting System. The most contentious issue, it emerged, was whether NGOs should be permitted to pay access fees to FTOs if necessary. Ultimately, this issue consumed the bulk of the discussion. It also ended up standing in the way of a group consensus on the overall approach. However, since the various issues had been divided up and dealt with according to level of difficulty, many smaller and less divisive issues were still possible to agree upon. This enabled the parties to forego needless arguments over small points and focus on the more significant issues at hand. Read Part 2 and Part 4.

Written by law school students Katrina Younes, Rob Alfieri, Aaron Zaltzman as part of the Re-Imagining International Humanitarian Law course at University of Western Ontario Law School.

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Legal, political, strategic and ethical dimensions of the 2011 famine

Elspeth Graham & Laura Snowdon

This is the second in a series on the use of Somalia in Crisis role play in a law school course on International Humanitarian Law. Read the Introduction.

The United Nations declared a famine in Somalia in July 2011. The humanitarian response to this crisis was slowed by the presence of al-Shabaab, and the famine ultimately claimed the lives of nearly 260,000 people. Six years later, five teams of law students representing various U.S. government departments participated in a simulation exercise to negotiate the legal, strategic, ethical, and political concerns that arose in relation to the crisis. The five teams represented the National Security Council, Department of Defense, Department of Justice, Department of State, and Office of the Vice President, respectively.

Legal concerns regarding issues of enforceability and a lack of clarity in U.S. material-support-to-terrorism legislation hindered consensus-building amongst the negotiating parties. The representatives of each group recognized that the legal landscape governing humanitarian workers in Somalia was complex and unclear, resulting in a chilling effect on the provision of aid. A majority of representatives concluded that a temporally- and geographically-limited humanitarian exception was a feasible path forward: it could potentially balance the U.S.’s moral obligation to provide aid alongside its important national security concerns. They were persuaded to agree on a humanitarian exception on the basis of moral arguments, namely the moral obligation of the U.S. to help save the lives of Somali citizens in crisis. However, the team representing the Department of Defense was the lone holdout, preventing group consensus on this point. Given its mandate to prioritize national security, it voiced concerns that any humanitarian exception—however limited—might allow al-Shabaab to financially benefit from U.S. humanitarian assistance.

The likelihood of consensus could have been increased if those teams favouring a humanitarian exception had considered arrangements more sensitive to national security. A strong attempt at this argument was that the failure to provide a humanitarian exception could actually pose a greater security threat for the U.S., due to prospects of radicalization in the face of an increasingly grave humanitarian crisis. While the Department of Defense team recognized this risk, it still insisted that directly supporting terrorist organizations posed the greater threat. Arguably, other stakeholders could have challenged this set of assumptions more effectively. After further rounds of discussion, the representatives of the Department of Defense finally appeared open to a very limited humanitarian exception so that food and water could be delivered to Somali citizens. However, they maintained the view that their obligations to protect American citizens prevented them from permitting humanitarian aid workers to pay access fees to Foreign Terrorist Organizations (FTOs) such as al-Shabaab.

In terms of political concerns, the teams also considered how a potential humanitarian exception to the counter-terrorism legislation might affect international relations. During informal discussions, some argued that it was in the interest of the U.S. to allow humanitarian assistance: this would preserve its image and status in the international community. Otherwise, the U.S. might be viewed as weak, and even callous, for failing to assist in the response when it clearly had the capacity to do so. Cutting against this was the fear that allowing for a humanitarian exception could cause the U.S. to be viewed as a state that supports terrorist organizations.

The 2011 Somalia famine was an exceptionally problematic crisis, due to the need for humanitarian assistance in the context of an armed conflict involving a terrorist group. As a result of the intersection of these issues, decision-making in response to the famine was rendered even more complex. Only time will tell if the U.S. can learn from its past mistakes to coordinate an effective humanitarian response when similar crises unfold elsewhere in the world. Read Part 3 and Part 4.

Written by law school students Elspeth Graham & Laura Snowdon as part of the Re-Imagining International Humanitarian Law course at University of Western Ontario Law School.

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Experiential Learning in the International Humanitarian Law classroom

This post was written by Rebecca Sutton, who taught the Somalia in Crisis role play during the Re-Imagining International Humanitarian Law course at University of Western Ontario Law School.  This is the first post in a series; in subsequent posts we will hear from students in the course as they reflect on their experiences with the role play.

Introduction

In 2011, a series of intense closed-door meetings took place between U.S. aid workers, diplomats, intelligence advisors, the Department of Justice, national security officials, and other federal government representatives. The daunting question that lay before them was how to respond to the famine that the UN had recently declared in Somalia . In the preceding months, hundreds of thousands of Somalis had left their homes to go in search of food, water, and shelter across the desert. Meanwhile, organizations seeking to deliver humanitarian aid to these vulnerable populations had their access impeded by al-Shabaab, an al-Qaeda-affiliated group on the U.S. terrorist list. The legal backdrop to these negotiations was the adjudication of U.S. material-support-to-terrorism laws by the U.S. Supreme Court in Holder v. Humanitarian Law Project.

For some participants in the 2011 meetings, U.S. national security was the paramount concern shaping decision-making in response to the famine. From this vantage point, the delivery of humanitarian assistance was to be guided primarily by counter-terrorism concerns—the potential financing of terrorism a particular worry. Other U.S. stakeholders countered that the focus must instead be placed squarely on saving lives. In this view, the highest priority was ensuring that Somalia’s famine-stricken populations had access to the humanitarian services needed to survive the crisis.

These competing views came to the fore once again in the winter of 2017, this time in the form of a role-play in a JD classroom in Canada. As part of an intensive law course entitled Re-Imagining International Humanitarian Law (IHL), upper-year JD students at Western Law School took part in a simulation of the U.S. response to the 2011 famine. This multi-day exercise was based on the Harvard Case Study Somalia in Crisis: Famine, Counter-Terrorism and Humanitarian Aid, authored by Naz Modirzadeh, Dustin Lewis, Molly Gray, and Lisa Brem, in connection with Harvard Law School’s Program on International Law and Armed Conflict.

“…at its best, experiential learning has the potential to facilitate deeper thinking of what IHL could be, and may spur students to articulate ideas about prospects for reform.”

As a Visiting Professor at Western Law School, I integrated the Somalia Case Study into my IHL teaching for three reasons: to contextualize IHL as a legal regime, to ground the teaching of law in real-world application, and to spark curiosity about IHL’s future trajectory. First, the case study invites law students to contextualize IHL’s application in two ways: in the context of a particular international crisis, and alongside other legal regimes that apply in armed conflicts and humanitarian emergencies. Second, as a pedagogical tool, this type of role-play also takes the law out of the books. It offers students an experience akin to the international Jean Pictet Competition in IHL, in which a relatively small number of law students participate annually. Third, at its best, experiential learning has the potential to facilitate deeper thinking of what IHL could be, and may spur students to articulate ideas about prospects for reform.

“…role-play exercises such as the Somalia Case Study help to…introduce students to law’s real-world application”

Having provided some background context, the aim of this discussion is to let law students speak for themselves. I have invited the JD students from my Re-Imagining IHL course to share their own reflections on how they experienced this Somalia simulation exercise. In the personal accounts that follow, students elucidate how they navigated issues such as competing stakeholder interests, consensus building, and the possibility of a ‘humanitarian exception’ to U.S. counter-terrorism legislation. I suggested that role-play exercises such as the Somalia Case Study help to contextualize IHL, introduce students to law’s real-world application, and potentially galvanize ideas about legal reform. As the student testimonials in the following posts will highlight, such exercises also bring to light the politics of law and expose students to the manifold ways in which power shapes and influences law’s implementation. For many JD students who participated in the Somalia simulation, IHL’s humanitarian promise was brought into question as it was subsumed by other pressing concerns such as national security. Students experienced first-hand the frustration of having a particularly powerful stakeholder hold fast to an unpopular position, and they also found that negotiation skills could take on more importance than ‘objective facts’ like human suffering. Evidently, this kind of role-play activity may leave law students feeling perplexed or disillusioned—perhaps especially when one’s participation the course has been galvanized by a humanitarian impulse. At the same time, such simulations have the potential to facilitate an escape from the disenchantment that a purely doctrinal or black letter IHL course might generate. I would argue that ultimately, so long as the end result is not apathy, it is essential for students to grapple with this kind of complexity. In my view, this is a first step towards understanding IHL as a practice.

“I would argue that ultimately, so long as the end result is not    apathy, it is essential for students to grapple with this kind of complexity. In my view, this is a first step towards understanding    IHL as a practice.”

A special thanks is due to graduate students Anaise Muzima and Kirsten Stefanik, who served as volunteer judges for the Somalia simulation and edited the student contributions. Read Part 2.

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Meet our New Case Writers!

Image of our new case writers, Brittany Deitch, left, and Rachel Gordon, right, in front of large office window

Brittany Deitch (left) and Rachel Gordon (right) have both recently joined the Harvard Law School | Case Studies team. Brittany, a recent JD graduate, was sworn into the bar in September 2017. Her role involves writing cases tailored to the JD curriculum. Brittany was inspired to get involved with pedagogy by her time in higher education, saying:

“Prior to law school, I worked for a nonprofit focused on encouraging and facilitating student access to education in American political thought and history at the university level. That organization achieved this goal by working with professors to develop their courses in a way that would attract student enrollment and foster an interest in civic engagement.”

When asked about her favorite projects so far, Brittany cited working with HLS Professor Howell Jackson and sitting in on his Regulation of Financial Institutions course, where he uses one case study per week. In Brittany’s experience, using case studies in legal education can be ideal:

“While a student in law school…most of my courses were taught using the Socratic Method and Langdellian Case Method… Although those methods help students to ‘think like lawyers,’ they do little to develop practical, professional skills needed to act like lawyers. I find that simulation exercises and skills courses supplement the classroom experience nicely. Case studies are especially great because they can be incorporated into doctrinal courses to teach students to think like lawyers and make decisions like lawyers while also teaching the substantive law.”

Rachel, who focuses on writing cases in the Executive Education sphere, is a veteran case writer that has worked at Harvard Business School Case Writing Group (then called the Global Research Group), and the Global Health Education and Learning Incubator at Harvard University, but says she first got in to writing case studies per a recommendation from a professor she had while getting her MBA at Simmons College. Rachel notes:
“Executive Education uses cases differently than the JD program; the Executive Education program’s cases focus on developing leadership and professional skills.”
Rachel also sees value in case studies in the classroom, and what their ambiguity can teach students:

“Case studies are written to encourage dialogue among participants. Often the instructor isn’t looking for the ‘right’ answer but rather a willingness for participants to reflect and build on each other’s comments Reactions to cases are not intended to be uniform; two individuals may have very different perspectives on how to approach a situation. Ad hoc debates during the class discussion can help broaden our understanding of the issues laid out in the case study. This is a time for participants to take an intellectual risk or push an idea further.”

Rachel has thoroughly enjoyed sitting in on the Harvard Law School Executive Education programming and “having a better understanding of the challenges that lawyers face today in the changing legal environment” saying:

“The 2008 economic crisis was a real watershed moment for the legal industry. It is still grappling with how to respond to new demands for efficiency and transparency while also grappling with the changes caused by technology and globalization. It is exciting to produce materials for today’s lawyers that invite them to confront these issues deliberately and creatively.”

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Police-Community Dialogue: The Harvard Negotiation & Mediation Clinical Program Releases Innovative Resource on Facilitation

Bordone conversing with community members

 

The Harvard Negotiation and Mediation Clinical Program has produced a new video resource on facilitation entitled “Police-Community Dialogue: A Facilitated Conversation Featuring Commentary with Harvard Law School Professor Robert C. Bordone”.

The resource, which can be purchased on HLS Case Studies, features an unedited facilitated dialogue as well as retrospective analysis and commentary with the two facilitators and Professor Bordone. “Police-Community Dialogue” also includes a detailed teaching note with discussion questions that educators can use in courses on facilitation, multi-party negotiation, consensus building and mediation, and workshops or training sessions on facilitating dialogue.

“We hope that this resource will help people not only in the realm of Police-Community relations, but also more broadly in cultivating the skills of facilitation that are so needed in today’s world,” says Professor Bordone.

The “Police-Community Dialogue” video resource provides a window into decisions that facilitators must make during challenging conversations. It is specifically created to support those who teach facilitation, those who serve as facilitators, and those who are interested in implementing group dialogue and public engagement in their communities or organizations.

One of the features that make this resource unique is its user-friendly structure: it can be watched all the way through or by chapter, based on specific topics in facilitation. Chapter Three of the resource, which focuses on establishing shared norms for a conversation, is available as a sample chapter for public viewing. The online platform for viewing the videos also includes an interactive forum where educators and facilitators who register for the resource can exchange ideas.

The first part of the video resource is the facilitated conversation as it occurred on July 9, 2016 in its unedited form. The second portion of the video is a conversation that Professor Bordone conducted with the two facilitators, Danielle Bart (Associate, Goodwin Procter LLP) and Toby Berkman (Senior Associate, Consensus Building Institute), weeks after the dialogue. In this second part, Professor Bordone interviews Toby and Danielle about the choices they made when preparing for the dialogue and at key moments in the dialogue itself. The purpose of the interview is to get into the minds of these skillful professionals, understand their facilitative choices, and reflect on various ways to handle challenging moments.

HNMCP began this video project in early 2016, months before the actual dialogue took place. The original invitation to dialogue participants asked them to reflect on their reactions to police community relations in the US since the shooting of Michael Brown and the events in Ferguson, Missouri in 2014. As it happened, the week before the scheduled Saturday taping in July of 2016, Alton Sterling was killed in Baton Rouge, Philando Castile was killed in Minnesota, and five police officers were killed in Dallas. During the week before the dialogue, these events gripped the nation and heightened the rawness that the eight participants brought to the filmed conversation.

Because the aim was to create a resource that would educate and inspire, Professor Bordone, along with Supervising Producers Sara del Nido Budish and Adriel Borshansky, made an intentional decision not to use actors and scripting. Everyone in the video—both participants and facilitators—is playing themselves in real time.

“We knew that hosting a real dialogue presented risks and would result in a video that would be less-than-perfect,” Professor Bordone says. “But we thought producing a video with flaws would be more useful to viewers than creating a ‘perfect’ video of dialogue. Even if the latter could be created with actors and good writing, we suspected that watching something that could never happen in real life would be, at best, largely academic and, at worst, a bit demoralizing since there is no such thing as a ‘perfect’ dialogue.”

This video resource is one project in a broad initiative that Professor Bordone and the Harvard Negotiation and Mediation Clinical Program are leading to reinvigorate genuine and challenging dialogue in public life. In response to increasing polarization in the American political landscape, the clinic has sought to expand its work related to political dialogue on issues that cut to the core of identity and belief. HNMCP began to develop its political dialogue initiative 2015 with the Real Talk series and the formation of the HLS Now Facilitation Corps in 2016. In the 2016-2017 academic year, the clinic led Harvard Community Dialogue, a series of dialogue sessions on pressing political issues: What is America? A Community Dialogue on National Identity and Immigration, The Press: Sensationalism, Ratings, and Responsibility, and Parties, Politics, and the Future of Healthcare in the United States. Professor Bordone and Assistant Director Rachel Viscomi spoke about creating opportunities for dialogue through difference on a widely-viewed Facebook Live event with the Harvard University Gazette. HNMCP also collaborated with HLS Admissions and the Dean of Students Office to facilitate dialogue on identity and lawyering for admitted students from traditionally underrepresented identities or groups. More broadly, HNMCP’s work has expanded its pedagogical focus on the theory and practice of facilitation. Professor Bordone and Rachel Viscomi offer The Lawyer as Facilitator workshop to students and in fall of 2016 they initiated a new reading group entitled, Political Dialogue in Polarizing Times: Election 2016.

Learn more about HNMCP’s work on political dialogue.

The Harvard Negotiation & Mediation Clinical Program is the nation’s first legal clinic focusing on dispute systems design and conflict management. HNMCP was founded in 2006 by Professor Robert Bordone to take Harvard Law School students from theory to practice in the fields of negotiation, dispute resolution, and conflict management.

HNMCP trains a new generation of lawyers with the skills—in negotiation, mediation, facilitated dialogue, stakeholder assessment, dispute systems evaluation and design, conflict analysis, and curriculum development—necessary to help their clients manage their negotiations and disputes efficiently and creatively.

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

person walking by langdell
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

Image of many people participating in a conference call

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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