Professors teaching in courses that require research and writing need to craft hypothetical problems that will engage and interest the students as well as meet the goals for that course or specific project. Creating these problems takes a significant amount of time and can be frustrating, as many pieces of law may meet some, but not all, of the specified goals. Professors should set aside plenty of time to set out their goals, research the law, and then craft specific facts that allow for adequate analysis and discussion.
A. Setting Goals
New professors often try to design a problem around an interesting current events issue. While current events can often be the basis for an effective legal research and writing hypothetical, professors should be wary of a few potential problems. First, will the issue still be timely when you work on it with your students during the semester? Many professors prepare their materials during the summer months; however, often times an issue that is timely in July will be resolved or out of the news by October. Second, an interesting issue may be so thin on law that it will be difficult for the students to employ the building blocks of legal analysis that are the pedagogical focus of the assignment, or it may have so much relevant law that it is too complicated for novice legal writers.
Some professors, especially those who are current practitioners, often use a real case as the basis for a legal research and writing problem. While this strategy might be effective because the professor will be very familiar with the details, the students might be overwhelmed with too much law or too many tangential issues. If you decide to use a real case as a hypothetical problem, be sure that you narrow down the issues and remember that the students do not need every detail.
To avoid typical problem design mistakes, professors should reverse-engineer their hypotheticals. Instead of starting with interesting facts in the news or from a real case, they can find law that meets their pedagogical goals and then write facts that will allow students to analyze the law from various perspectives. Current events and real client issues can still play a part in problem design, but the legal issue may be a bit different from the one discussed in the news or it may be set in a different jurisdiction. In addition, professors may use facts that are similar to, but not exactly the same as, a real case or event; that way, students will be able to relate to the issue and compare it to the real world, but if news events change or real cases are resolved, the problem will still work in the ongoing course.
In reverse-engineering a problem, professors should think about their various research, writing, and analysis goals.
1. Research Goals
Some writing courses use closed packets where all the research is provided to the students. These problems are much easier to design because professors can control the amount and substance of the law available to the students. For these packets, professors pick and choose the appropriate primary and secondary sources of law for the students to consult in drafting the document and focus their teaching time on writing instead of research. Some professors, especially those charged with teaching research, do not use closed packet problems because they find that the legal research often informs the students’ writing process and vice versa.
When professors design problems that include legal research, they need to think through the research goals. Will the students be asked to find statutes, cases, secondary sources, administrative law, or all of the above? Will they be limited in the nature of sources that they will be permitted to cite in their written product (e.g., just binding law, or just primary law, or just published cases)? How many cases are too many or too few given the purpose and scope of the assignment? How complex is the analysis? All of these questions should be answered when designing the whole course – not just a particular project. Start from the beginning of the semester and lay out the goals for each unit and for each assignment within that unit. They should progress and become harder as the semester continues so that you can introduce new concepts and build upon them throughout the semester.
Some research questions to consider for each project:
- Where does the project fall in the semester?
- What type of law will the students research – statutes, cases, or a variety?
- Will students find federal or state law or both?
- Do you need to limit the amount of law researched? By category or date?
- Do you want to limit the amount of time spent researching?
- Do you want to focus the students on a particular provision or sub-element within a particular issue?
- Will the students be overwhelmed with the amount of relevant law?
- Will the students find enough law on point for the writing goals?
- Do you want your students to struggle in their legal research so that they ask more questions, or do you want the research to be straightforward?
- Do you want your students to learn more than one research platform (Lexis, Westlaw, Bloomberg)?
- Do you want your students to learn how to do book research?
- Have you included an updating portion to the research goals to reinforce the need to make sure the law is still reliable?
2. Writing Goals
Professors should also decide the type of document the students will produce for each project. One hypothetical may lead to a variety of documents and can be the basis for the whole semester if it is interesting and nuanced in design. The hypothetical should be designed in a way that works for the document(s) that will be produced and in a realistic format regarding the procedural posture of the case. For example, if the students will write a memo that provides advice on pursuing a particular case, the problem should be presented in an appropriate fashion, such as with a client interview or fact summary. On the other hand, if the students will write an appellate brief, the professor will need to create a trial or hearing transcript or a record of filings in the court below (e.g., if the appeal is from the grant of summary judgment).
Some questions to consider when choosing a writing project:
- Will the students write an objective or persuasive document?
- Will all of the students in the course be asked to represent the same client or will they represent opposing sides?
- What are the page or word limits of the document?
- What is the required format, if any?
- What are the rules for collaboration?
- What are the professor’s expectations and goals?
- What type of document will best serve the professor’s goals for the assignment in terms of teaching particular research and analysis techniques to students?
3. Analysis Goals
The analytical goals of each project go hand-in-hand with the research and writing goals and can differ based on the type of law (statutes, regulations, cases) and the specific legal test (elements, factors, totality).
If students are reading statutes, they will need to learn how to engage in effective statutory interpretation, using some of the commonly-used tools of statutory construction. Here, professors may want to ensure that the problem includes statutory definitions and cases analyzing specific statutory provisions. Statutes with express statements of the purpose of the provisions at issue, or with cases that discuss the purpose of the legislation, can help the students to craft policy arguments about the effect of applying the statute to the hypothetical client situation. A well-designed statutory interpretation problem might also require students to pay attention to the date the statute was enacted to determine if some cases may no longer be relevant. In addition, if the statute codifies previous common law, students should be aware that earlier cases may still be relevant even if decided prior to the enactment of the statute.
If the project deals with interpreting regulations, students will need to understand the relationship between the enabling legislation and the regulations enacted pursuant to that legislation. In addition, because of the judicial deference given to agency decisions, the students’ research might focus heavily on agency publications relating to the particular regulation and the problem might require the students to develop detailed factual information to determine how the regulation might affect the hypothetical client’s situation. Alternatively, a regulatory problem might focus exclusively on the agency’s authority to promulgate a particular regulation rather than on the application of a regulation to the client’s situation, placing the problem back in the realm of statutory interpretation.
If the project deals with case law, a focus of the assignment might be to teach the students how to perform case analysis. This is a difficult concept for new students, and thus assignments involving case analysis should be designed to avoid overwhelming students with too many cases in the beginning of their law school careers. They need to learn how to read cases, determine which cases are important, and then use the relevant cases in their analysis to synthesize legal rules and to apply those rules to the hypothetical client situation using analogical reasoning. In crafting a problem, professors should be cognizant of the number of relevant cases, the variety of cases and the ways in which the students can use them for legal analysis, and the different ways in which the courts analyze the issue.
Whether the law of the problem is grounded in statutory, regulatory, common law, or some combination of those sources of primary law, professors should also focus on the nature of the legal test at issue in the problem and what the implications are for how students might organize the analysis. Statutes and common law claims often lend themselves to element-based analysis, in which A, B, and C must be proved for the statute to apply or claim to succeed. More complicated tests might include alternatives for certain elements, in which alternative elements (A1 or A2), (B1 or B2 or B3), and (C1 or C2) must be proved, presenting a greater challenge for students both organizationally and analytically. Legal tests involving a reasonableness analysis often lend themselves to a balancing or totality of circumstances analysis. If the factors that must be balanced or weighed in the totality of circumstances are clearly stated in the statute, regulation, or case law, then the problem will be easier for students to organize and analyze. If the factors are not clearly stated in the applicable sources of law and the students will have to distill those factors from precedent, the problem will be more challenging for students. Even more complicated analysis includes areas where the law itself is not clear and the students might present alternative ways to interpret and organize a legal issue. To help students master foundational analytical concepts, it is usually most effective to start with problems involving simpler, element-based tests and then move to law involving more complex legal tests as the course progresses.
Some questions to consider in terms of analytical goals for a particular project:
- What type of law will the students be analyzing?
- What analytical tools do you want the students to employ?
- Is there too much or too little law for the students to be able to effectively employ those analytical tools?
- If using a statute, is there a specific provision that is most relevant?
- If using a statute, is there a definition section? A purpose section?
- If using cases, do the cases come out on both sides of the issue or is it heavily decided one way by an overwhelming number of cases?
- Will the students be able to synthesize rules from the cases?
- What facts in the cases will be useful as comparisons to your hypothetical?
- How will you use the law in class to help guide the students in their analysis?
- Does the law provide a clear-cut rule with an obvious organizational schema or will the students need to synthesize the rule of law from various sources?
- If working with an area of law with a clear rule, is it an element-based test, a balancing test, a totality of circumstances test, or some combination? All of these pose different challenges and it is important to think about the level of difficulty of each problem.
B. Researching the Law
When reverse-engineering a problem, professors should find a specific issue that works with current law. The best starting place is usually through problems that have been used before by colleagues or in legal research and writing books. However, even problems that are recycled or borrowed must be updated to ensure there are no changes in the law or major updates that could impact the success of the problem. If a problem has been used recently in your school, consider changing the jurisdiction (and the facts) but keeping the issue the same.
To design a new problem, secondary sources can be a good starting point. The annotations in American Law Reports (A.L.R.) are particularly helpful; they provide a nice summary of a host of legal issues, broken down into sub-issues with citations to and summaries of relevant cases. Most helpfully, each A.L.R. annotation includes tables of cases organized by jurisdiction (both state and federal), allowing you to see which states or federal circuits might have an appropriate range of cases on point.
Another helpful tool for research new problems is the West Key Number System. Its topical organization, with the ability to dig down into more and more specific issues within a general area of law and then to search by jurisdiction, makes it a great starting point. Moreover, when a problem is reverse-engineered by starting with the West Key Number System, the problem allows students to better appreciate how key numbers can be helpful research tools.
Some tricks to consider when researching the law:
- criminal codes provide for relatively simple statutory problems;
- privacy torts usually work well for common law problems;
- constitutional issues such as First and Fourth Amendment problems can provide more complicated analysis for second semester brief assignments;
- research assistants can be helpful; have them research the law, write the legal document, and keep track of time to determine the level of difficulty; however, be careful not to rely too heavily on research assistants – you will need to provide them with guidance on research, writing, and analytical goals.
C. Writing the Facts
Once the professor has set out her goals and become thoroughly familiar with the relevant law on point, the next step is to design the specific facts of the hypothetical client problem. An essential first consideration is whether the pedagogical goals of the particular assignment would be best served by a fact pattern that leads to a relatively straightforward conclusion once the relevant law is applied to the client’s situation or by a fact pattern that does not lead to a clear result; in other words, whether you want there to be a “right” answer to the legal question or whether you want the students wrestling with ambiguity in the law as they write. The former approach might be an effective choice for an early assignment, so that students can focus more on the analytical tools they are using to support their conclusion than on evaluating multiple possible “correct” outcomes. The latter approach, however, has the benefit of creating multiple layers of discussion and analysis with students and of highlighting the importance of considering likely counterarguments in many forms of legal writing.
Whether your goal is to design a fact pattern that leads to an uncontroversial conclusion or one that leads to multiple, different “correct” outcomes, the focus should be on crafting facts that allow the students to use the law to support their conclusions in ways that advance your goals for the assignment in teaching analytical skills. If there is a definition in a statute and your goal is to have students recognize that statutory definitions often require as much interpretation as the terms that those definitions seek to define, then design your facts so that they don’t fit squarely within the definition. When there are cases relevant to the legal issue, create facts that are amenable to express comparisons and distinctions. If you want all of the students to come to the same conclusion, the hypothetical should be comparable to the facts of the precedent in ways that are most relevant to the legal rules governing the claim and not readily distinguished based on applicable legal principles. If you want the students to reach differing conclusions, create facts to allow for arguments on both sides, using the law that is available.
In addition, the professor should strive for a realistic fact scenario. Keep in mind that clients have problems, not fact patterns. Therefore, when writing the facts, professors should try to simulate real situations. Summarizing the facts for the students may be simple and efficient, but it may not be the best teaching tool. Instead, consider creating case files with multiple documents, such as police reports, Google maps, and pictures of evidence. A video of a client interview (or even a live client interview in class, with students taking turns asking questions) could also replace a static case summary. In addition, in real world cases, facts change or become evident as the case proceeds; adding more facts to the client file during the writing of a legal document or a series of documents for the same client can also be a useful teaching tool.
In crafting the facts, be cognizant of the impact that your choices might have on students and make those choices intentionally. Are there implicit or explicit gender, race, or cultural issues in your choice of characters for the fact pattern? Do you want to encourage a class discussion of those issues and how they might affect the lawyer’s choices in creating the particular document, or will that make that problem more complex than you intend for purposes of the goals of the assignment? If students will be assigned to represent both sides in a dispute or potential dispute, will the factual scenario allow students to sympathize or empathize with their assigned client? Although lawyers in practice do not have to sympathize with or even like their clients, students will find their assignments easier to write if the facts are designed so that the client has some redeeming qualities; having an unlikeable client can create an unnecessary obstacle to the students’ writing process that distracts from the goals of the assignment.
Whether you are designing a closed packet of material for the students or you are requiring them to do the research themselves, all these decisions need to be deliberate. If the problem is too complicated, the students will become frustrated with the writing process and feel insecure about their product. If the problem is too simplistic, however, students will become bored and complacent with the writing process. If you are a new professor, consider starting with assignments written by more experienced colleagues so that you have a sense of the appropriate level of difficulty for the student audience at your institution before developing your own projects. When in doubt, however, it is usually more effective to choose complexity over simplicity in designing writing problems, as wrinkles in the law or facts that confuse the students can be the subject of an engaged class discussion from which the students learn analytical skills that will serve them well in practice.