Susan A. McMahon (Arizona State; Google Scholar), What We Teach When We Teach Legal Analysis, 107 Minn. L. Rev. 2511 (2023):
Legal analysis pedagogy effectively teaches students the rule-based and analogical reasoning skills that are necessary for a successful career. But making this the only pedagogy imposes costs that law schools often fail to recognize. Students are armed to operate within the world as it is, but have little experience imagining a new world and little practice in how to bring it into being.
Surrounding the traditional legal analysis pedagogy with training in both disruption and creation accomplishes two goals: First, this approach disrupts students’ sense that law is neutral and “usually OK.”
They see instead that rules and analogies rest on value judgments that, if made outside of the legal arena, would be highly debatable. Second, students gain practice in envisioning new rules and arguing for their adoption. They build the creative reasoning muscle that is the hallmark of change agents and skilled lawyers alike.
Both of these methods are necessary. Without disruption, students will continue to feel the numbing effect of legal discourse and will have a hard time imagining how things could be different. Without creation, students may see that change is necessary but have no ability to bring it about. By supplementing our teaching with these methods, we law teachers can try to help students fix what is wrong with the world, instead of pretending that nothing is wrong at all.



