NUMBER 8 JULY - DECEMBER 2007
NOTES ON THE OPTIONS OF CHANGE IN LAW TEACHING METHODOLOGY IN MEXICO*
José María SERNA DE LA GARZA**
Original Text (Spanish) PDF
I. Introduction. II. The case method. III. The problem method for legal teaching. IV. Options and possibilities of the case method and the problem method for teaching law in Mexico. V. Conclusion.
Since at least the 1960s, intermittent impulses in Latin America in general, and particularly in Mexico, aiming to introduce important changes in the law-teaching methods have emerged. We can cite, for instance, the Latin American Conferences of Law Schools held at different times, in which emphasis has been put on the need to introduce an active teaching methodology that demands direct and constant participation from students.1 In fact, at the second conference, held in Lima, Peru, in 1961, it was concluded that law teaching should be “active” and should reconcile the teaching of theory and practice, with “practical teaching” understood as teaching oriented at solving practical cases and problems, among other features.2
However, in current teaching practices at our Law Schools and Faculties, there has been little progress made along the path mapped out by those conferences. The most predominantly used teaching method is the master class, which has inhibited the use of more “active” methodologies in the legal teaching-learning process.
In general terms, when one talks about “active” teaching methods, the two most commonly mentioned are: the case method, and the problem method. The first one originated in the United States of America (USA) and is still widely and predominantly used to teach law in that country. Despite this predominance, however, there is a school of thought that sees serious problems (among which, from my particular point of view, there is the fact, interestingly enough, that it is “passive”). Thus, an alternative method has been proposed; that is the problem method.
Nonetheless, despite the advantages cited by the defenders of the problem method, case method supporters have not ceased providing arguments against the first-mentioned method and for the second-mentioned. This has given rise to an interesting debate within the framework of American legal education, from which it is possible to identify the alleged advantages and disadvantages of these two methods that, from a Latin American perspective (that is to say, from the master class perspective), are considered “active” methods.
The purpose of this essay is to analyze the debate that has been taking place recently in the USA regarding the case and problem methods, in order to create a conceptual framework that allows us to justify the need for a change in the way we teach law in Mexico.
To reach that goal, I have divided this essay into four sections. First, I review the characteristics of the case method and develop an outline of the US debate on the advantages and disadvantages of that method. Secondly, I do the same, but this time with the problem method. Thirdly, I develop a series of considerations on legal teaching in Mexico and I discuss the possibilities the case and problem methods could have in law teaching in Mexico. Finally, by way of conclusion, I include a set of brief final reflections.
Finally, this essay hopes to create elements that contribute to bringing about a change in how law is taught in Mexico. This aspect, as will be later argued in this paper, is linked to the formation and consolidation process of the constitutional Rule of Law in Mexico.
II. THE CASE METHOD
1. Its emergence in the United States of America
The case method emerged in the United States as a reaction against a teaching methodology based on the master class, as part of a strategy aimed at “upgrading” the study of law to the level of the other sciences taught in US universities.
The person to first introduce this teaching method in American Law Schools was Christopher Columbus Langdell, who was appointed dean of Harvard Law School in 1870. While dean, Langdell introduced a series of modifications in the structure, curricula and law teaching methods, which, as time elapsed, went beyond that educational institution. In fact, the teaching method created by Langdell currently prevails in most law schools in the USA.
Langdell’s methodological reform focused on two aspects: a) replacing the textbook with the casebook; and b) replacing the master class with the Socratic Method in the classroom. By introducing these two new elements, teaching dynamics were radically altered. Instead of having a professor up front, expounding “the law”, based on textbooks (often written by the professor himself), the idea consisted of having a professor who would guide students in the understanding of legal principles and concepts that could derive from court opinions or decisions included in casebooks, through the Socratic method.3
Friedman has pointed out that there was a complete theory behind Langdell’s method. He considered law a science, and that the object of its analysis should therefore be studied scientifically. This implies an inductive analysis based on primary sources. In other words, from the study of a series of “correct” court opinions, the professor should guide students to find the principles and doctrines derived from them.4
Along this line of thought, in his description of the case method, Moskovitz says that Langdell believed that a law school was a place where law should be studied just like any other science studies in other university departments. Besides, Langdell viewed (appellate or upper) court opinions as the raw material for this new science, and the law library as his laboratory. Thus, “As a research scientist might dissect a mouse to learn how its organs work, Lagndell would dissect a case to find out how the law works. Classroom discussion through his “case method” would involve the student in this scientific process”.5
In other words (and to refer to a non-American author that has studied and written about the case method), Pérez Lledó has described this method as follows:
In the end, the case method emphasizes concrete court opinions, instead of the general and abstract rules of legislated law; the study of primary sources instead of doctrinal manuals; participative discussion in a classroom instead of the passivity and dogmatism of the master class; the methodological education, and the ability to pronounce legal arguments instead of simply memorizing previously systematized information regarding rules and doctrines.6
As can be seen, the case method represented an important break with the traditional law teaching method based on a “master class” (which currently prevails in Mexico and throughout Latin America). Since the case method is based on the casebook and a class organized according to the rules of the Socratic Method, we will go on to analyze each of these elements.
2. The casebook
The casebook is a condition of the law teaching method based on cases. Pursuant to Gelli’s description, casebooks used in American law schools have the following contents:
Decisions selected based on their intrinsic relevance, the special characteristics of the facts discussed therein, the economic-social impact of the dispute itself, or because it was a notably bad decision.
Legislative material regarding transcribed decisions and a few comments from renown legal scholars on the subjects being discussed.
Sometimes, and more and more frequently, it usually adds quality legal literature posing problems and concerns, so that students can make out the possible conflict from a legal angle, as might a trial lawyer, adviser or judge.
At the end of the transcribed decisions, questions were added –problems with a high degree of complexity that serve as a guided approach to analyze such cases, without including any answers.7
So, one must clarify that talking about “case” books and the “case” method is not completely accurate or precise. This is because the books used in this method do not contain “cases” but decisions or opinions and, in general terms, they only or mostly include appellate or upper opinions. Students only have partial access to the “case”, depending on what has transpired after the appellate-court opinion.
In a very interesting way, Zarr describes how it is that the “casebook” is really a compilation of opinions pronounced in the appellate court, ordered one after the other; and their use requires that the professor fill in the blanks of that opinion, so that students have the feel of the whole case.8 Zarr quotes Jerome Frank to describe exactly what is done in American law schools, where the “case method” is used:
…[S]tudents are supposed to study cases. They do not. They study, almost entirely, upper court opinions. Any such opinion, however, is not a case, but a small fraction of a case, its tail end... [T]he study of cases which will lead to some small measure of real understanding of how suits are won, lost and decided should be based to a very marked extent on reading and analysis of complete records of cases –beginning with the filings of the first papers, through the trial in the trial court and to and through the upper courts. A few months properly spent on one or two elaborate court records, including the briefs, (and supplemented by reading of textbooks as well as upper court opinions), will teach a student more than two years spent on going through twenty of the casebooks now in use.9
On the other hand, Watson criticizes casebooks as follows: he reminds us that unlike textbooks, casebooks present a few cases for discussion to students. But the law, he says, is not contained in a few cases, it is distilled from many. When only a few cases are studied, each appears out of context, cannot fully be understood or appreciated, and students are not given the framework of the law. Besides, there is an absence of theoretical underpinnings. Finally, this author says that teaching from casebooks is very wasteful of time in failing to supply substantive information to students.10
Despite the criticism, the casebook that replaced the traditional textbook is still the basis of most of the courses given today in American law schools and still continues to be the main instrument of support for legal teaching, along with its complement: the Socratic Method.
3. The Socratic Method
From the first day of class, the professor asks the students to read one or various court opinions. Students are asked to read and understand the opinions in order to be able to answer the questions posed by the professor in class. Besides, this is generally done without a prior theoretical or practical explanation. For the most part, the class revolves around the opinions that the students were asked to read, understand and analyze before the discussion.
Aldisert describes the Socratic Method as follows:11
The professor takes a court opinion as a starting point: “and tries to make the students discuss if the reasoning developed in the court is correct or incorrect. The professor does that through questions made to the open class. He shall be prepared to pose more questions as derived from the answers. Soon, students understand that when speaking of questions of law there are not quick ‘yes/no’ answers. The professor also introduces factual hypothetical situations other than those mentioned in the opinion being discussed, and he shall ask if adding or taking out facts would make a difference regarding the result. This is an exercise in analogy, designed to heighten the students’ perception, demanding them to evaluate the similarities and differences in the factual patterns of the cases compared. Students are constantly immersed in a changing sea of analogy. They are required to understand and evaluate the particular reasons exposed on the deductive syllogism, to evaluate whether the particular reason on which the opinion is based can legitimately support the same results in other factual patterns, and if so, why. The understanding of the deduction and induction principles will assist significantly the student in this daily exercise”.12
Given the importance of reading and understanding decisions, one of the first skills the professor tries to develop in his students during the first year of law school is preparing what is known as case briefing, that is, a method to summarize and organize the information contained in court opinions that are usually very long and complex.13
One can think of an assortment of methods to analyze and summarize court decisions within the general framework of the case method. In fact, as Dernbach et al. say, with practice and in time, each person develops a personal method adjusting to that person’s own skills and needs.14 However, in order to illustrate how it is used for teaching, we will take the method as developed by the above-mentioned authors, and we will describe it as follows.15
Essentially, Derenbach et al. propose the following steps to organize and summarize the information contained in a court decision:
Read the opinion carefully and many times to identify:
Who the parties are.
How the dispute originated.
The different elements of the opinion.
The effect the opinion had on both parties.
The most relevant facts of the case.
The implications (economic, social, political, etc.) of the opinion.
Identify the court decision (holding). The opinion is the answer to the legal issues presented for the judge’s consideration. The student must be able to distinguish the ratio decidendi from the obiter dicta.
Identify the legal issues that the court had to resolve. A legal issue is what the judge needs to resolve, since the parties have a dispute over the application of one or more legal norms to the same facts. In fact, as has been established in the preceding paragraph, it can be stated that a decision is the answer to the legal issues submitted to the judge.
Identify the legal norm applied to resolve the case. The holding can originate from one statute or preceding opinions (we must recall that in the USA there is binding authority and the principle of stare decisis).
Identify the facts that are legally and procedurally relevant. Legally-relevant facts are those the judge deemed important to resolve the case.16 Procedurally-relevant facts describe in which stage of the process a mistake could have occurred at the court a quo. Its relevance is derived from the fact that the procedural issues of a case affect which legally-relevant facts go to the appellate court.
Identify the reasons, justifications, and considerations of pubic or social benefit (policies)17 that support the decision. This requires analyzing the steps of the logical process the court followed to make said decision. Besides, saying that legal norms are created to reach objectives that are socially desirable leads us to a corollary: norms should not be applied to facts without taking their consequences into account.18
Ensure there is consistency between facts, the legal issues to be solved, the holding created by the decision, the decision, the reasons, justifications, and considerations of public nature or social benefit.
The authors propose the following model to prove the coherence of all the elements:
|Facts|| What happened?|
|Norm|| Applicable laws|
|Legal issues|| Does the law apply to these facts?|
|Opinion|| The law does or does not apply to the facts|
| Why does the law apply or does|
not apply to the facts?
Cases that have various legal issues, each legal issue must be analyzed separately.
As has been described, the case method is based on the Socratic Method to develop the teaching-learning process in class. In turn, the Socratic Method requires that the students analyze opinions prior to discussing them in class. Consequently, the needs of the method have led to the development of techniques to make the analysis of opinions easier, in order to organize and summarize the information included in them.19
4. The debate on the Case Method
After some resistance, Langdell’s case method finally asserted itself in all law schools in the USA. Moskovitz has asked himself why this happened, and he found the following answer: the new method gave law schools prestige. No longer would they be seen as mere “vocational” schools, they would be placed on par with other university schools.20
Also, the predominance and persistence of the case method can be inferred as a result of the analysis of the arguments of its many defenders, who have declared that this way of teaching law has the following advantages:21
Of all available teaching methods, the case method best teaches the inductive method used by the lawyer to discern the law and so it best directly teaches the most critical lawyering skill: “to think like a lawyer”.22
Cases provide the appropriate factual matrix for students to learn to apply the law.
The case method demonstrates most clearly to students that the law is a growing, changing body of doctrine.
The method forces the student into an “active” learning mode.
The method is more pedagogically stimulating and interesting to the student than other more conventional methods.
Combined with the Socratic Method, this method helps students sharpen their minds, teaching them to think for themselves.
However, there is also a critical sector that has mentioned the following disadvantages contrary to the above-mentioned arguments on the advantages of the case method:23
The case method is not really based on the study of complete cases, but appellate court decisions.
The case method does not use class time efficiently. Much time is spent on the analysis of the different elements of the case, thus, there is little time left for providing the student with substantive information.
The case method concentrates on the tree, but does not see the forest: it isolates the case, taking it out of a more general context.
The Socratic Method confuses students.
The alleged objective of ‘thinking like lawyers’ is not reached through the case method.24 In practice, clients do not come to consult “cases” with lawyers, but problems.
The Socratic Method has a favorable slant to the professor’s authority, who chairs the interrogatory and knows the “correct” answer beforehand.
The Socratic Method used tends to generate anxiety and emotional disorders in students, who feel entrapped by the questioning and exposed to public criticism in class.
It should be said that this criticism against the case and Socratic methods has not gone unanswered. For instance, we can quote Professor Phillip E. Areeda’s enjoyable description of the Socratic Method, in which he tries to refute the main points of the critical position that is against this method.25 For instance, as to the criticism toward its inefficiency to provide relevant substantive information, Areeda says that this is true, but observation implies a misconception of the purpose of legal instruction. Transmitting information —he says— is only part of those objectives:
Notwithstanding many settled legal principles, a remarkable number of problems are unsettled, and new ones arise all the time. In dealing with the unsettled areas, the lawyer often gets little help from published encyclopedias and is forced… to examine directly relevant and the arguably analogous legal materials and to reason through to a solution of the unsettled problem.
The case method, he concludes, forces and helps the student to decipher those materials, to reconcile (when possible) what may first appear to be inconsistent, to apply and appreciate the limits of apparently general principles, and to use analogies, judging better and worse ones.26 Finally, Areeda says that the confusion that keeps students working to solve a problem, both before and after class, is constructive.27
The debate on the advantages and disadvantages of the case method in the USA has not ended. It is still present in current discussions on law teaching methodology in that country, even though it must be recognized that the criticism has not affected the generalized use of the case method. It is still, by far, the method used by the immense majority of law professors in the USA. We should mention, however, that criticism has had some effect since the contents of casebooks have been modified. As Pérez Lledó says, the classic casebook in United States law teaching only included a repertory of upper-courts opinions, as the raw material through which they might reach the rules and principles of the law. However, nowadays, the traditional casebook has been replaced by publications entitled “cases and materials”, which include legal texts, notes by the author himself or other specialists in the relevant sociological, economical, philosophical, historical, etc. aspects, among others.28
III. THE PROBLEM METHOD FOR LEGAL TEACHING
1. Characteristics of the problem Method
In opposition to the traditional case method, there is the proposal consisting of introducing the problem method in American law teaching. It is fitting to point out that said alternative method predominates at least at postgraduate courses in business schools not only in the United States, but also in many business schools around the world.
In fact, business schools in US Universities have used the method based on problem analysis at least since the early 20th century. Ironically, that method has been called “the case method”. This method consists of making students work on solving problems (called “cases”) created specifically as a teaching tool. Each case contains a set of raw facts about difficult circumstances firms face in real life. The students have to study the cases at home and discuss them later in class. The method requires that students find their own solutions, instead of reading solutions found by others.29
What critics of the case method suggest is to also use the problem method in law schools, as the fundamental basis of law teaching. If this trend is followed, law teaching through the problem method could be seen as explained below:30
The professor should give a problem, in writing, to his students, so that they study it, analyze it, and find possible solutions.31
The problem should be given in advance to the class in which that problem will be discussed collectively. This is necessary in order to give students time to prepare for discussion, by analyzing the problem, identifying the material they need to find possible solutions, and discuss the different angles of the problem in teams of three or four. How far in advance it is to be distributed depends on the complexity of the problem.
The method is based on the idea that the essence of the legal profession is to solve problems. Thus, the trial lawyer has to solve the problems posed by clients. The judge has to solve the problems derived from the disputes that had to be heard. The corporate lawyer has to solve problems that are part of the business’ corporate life or business transactions that the business enters into. These problems can also be reduced to a series of facts, which the client, the parties in dispute, or the corporate executives describe more or less coherently, and more or less in an orderly fashion, to the legal scholar, so that he may find a possible legal solution.
On the other hand, it should be said that the problem must be carefully designed by the professor, by taking elements from real-life situations or making them up from hypothetical situations. As Nathanson says, the efficiency of the problem method depends on the quality of the factual scenarios that a professor gives to his students when setting out the problem.32 This leads to a discussion of the characteristics a problem should have to achieve better efficiency in pursuing the objectives of law teaching. (We will deal with this issue in the following section of this essay.)
The problem may be framed in the context of any of the different areas of legal practice, such as litigation, negotiations, or drafting of statutes or other legal instruments.
Besides, the use of the method may take into consideration that substantive issues arise not in a vacuum. It is necessary to refer to the procedural context where the problem is found.33
Finally, the student must approach the problem in a specified role, such as advocate, judge or legislator, among others.
Solving the problem requires having a certain type of material on hand, including textbooks and class notes, legal texts, administrative rules, academic articles and court decisions.
Likewise, in order to solve the problem, students may need non-legal material, such as statistical, historical, economic, political or any other kind of data that might provide elements to reach different solutions to the problem.
This material can be provided by the professor or students may be asked to do some research on his own and gather the rest of the information needed to solve the problem. This is important, since it introduces into law teaching a fundamental element for professional life: the legal research work essential for devising solutions to problems posed in practical life.
2. What is a “good problem” for legal teaching?
In his essay on the problem-design for problem-solving teaching, Nathanson identifies what he considers to be the characteristics of a “good problem”. In this author’s opinion, the problems used to teach law should be:
User-friendly. Problems should be easy to read, well-written, preferably using short phrases; besides, being well organized, and with no inconsistencies that make students feel confused or mistrustful.
Realistic. Problems should resemble real life.34 The author also suggests that besides realism, problems should also be minimalist in two ways: 1) there should be a minimum number of learning objectives in the problem and 2) factual and documentary detail should be kept to a minimum.
Relevant. That is, problems should contest topics and situations that are relatively important in terms of professional practice. Besides, it also means that the professor should ensure that the problem refers to “high-impact”, or even “dramatic” topics, which motivate students to study and analyze the problem, in order to solve it.
Consistent with teaching-objectives. One of the challenges derived from teaching with problems is achieving consistency between problem analysis and the teaching objectives. This is because realistic problems tend to be presented as a mess of data, and the work of understanding and studying them does not unfold coherently or through topics that have been previously organized and defined (as happens in the traditional master class method). In this method, it is not always possible to control the student’s approach to the facts or what they learn from them. Thus, the designer should pay special attention to achieving consistency between the problem and the objectives he might want to achieve as a professor.
Similar, but Different. This means that problems should resemble each other, but at the same time they should be different. This promotes “transfer of learning”, because the student can apply what is learned in one situation to another one. Relative similarity can be achieved by using the same format while posing a different problem.
Problems should pose a challenge to the student. When dealing with a novel problem, which also presents an interesting dilemma or rouses the student’s curiosity, it is possible to motivate the student to undertake the analysis and study of that problem in order to discover a solution by herself.35
So, in the problem method, the professor’s design of “good problems” is the crucial element to achieve the law teaching objectives. This demands the development of certain skills to piece together, starting from real or hypothetical facts, problematic situations presented to students so as to stimulate them to find any possible legal solutions.
3. The debate on the problem Method
As in the case method, there is a debate regarding the advantages and disadvantages of the problem method. Thus, among some of the advantages, we can mention the following:
This method best approximates students to what lawyers do in practice: solve the problems posed by their clients or the parties in dispute.36
Its scope is wider than that of the case method, because it affords training in aspects that were not considered by that method: for instance, planning and advising.37
It broadens the range of matters open to the student’s consideration, which allows the inclusion of non-legal material into the study of law.
It increases effectiveness of instruction where the development of case law is relatively less important than that of legislative texts.
It provides stimulus to student interest.
However, contrasting with these advantages, critics of the problem method have identified the following disadvantages:
Professors need more time for class preparation, since it requires a constant design of problems and probable responses that will direct class discussion.
It reduces the class time used for transmitting essential knowledge.
It works better in small and medium-sized classes.38
It does not work without the proper research infrastructure; nor does it work if the student does not have the basic tools for legal research.
Criticism of the case method could lead us to believe that it would be more appropriate to use the problem method in teaching of law as a replacement. We believe, however, that in fact the problem method does not clash with the case method. The case method gives the student a set of skills that are essential for proficiently developing the problem method. As Ogden states, handling cases is a prerequisite for an educational use of problems that require the study of court decisions to find solutions.39 There is no reason for the methods to exclude each other. On the contrary, a variety of methods is good for students to receive a comprehensive legal education.
IV. OPTIONS AND POSSIBILITIES OF THE CASE METHOD AND THE PROBLEM METHOD FOR TEACHING LAW IN MEXICO
1. The debate on law teaching methodology in Latin America
The teaching method predominantly used in law schools in all of Latin America, and particularly in Mexico, is the master class. Witker has described this method as follows:
With regard to educational methodology, it is reduced to the so-called master or theoretical classes given by the professor to a group of students that is obligated by regulations to attend class. Most of the time, the professor speaks; occasionally interrupted by a student who asks him to clarify or better explain one of the concepts being dealt with in class... It is the projection of the professor-communicator, the center of the teaching process that makes finished and elaborate contents available for students to memorize or remember them.40
Also, the supporting material used in this method mainly (and sometimes only) consists of legal texts and court decisions are seldom used.
It is interesting to try to understand why this method has remained unshakable in Latin American countries for such a long time. For instance, Jorge Witker, has said that the predominance of this method and the resistance to proposals for change that have emerged from time to time in Latin America, is not unlike the way in which the law is regarded, like a static system of rules that is perfectly rational and has complete conceptual coherence and internal harmony. In the same manner, this author suggests that the predominance of and resistance to the master class method is tied to the way law science is thought of: as a frozen, finished and perfect discipline with a dogmatic and exegetic nature.41
In his analysis of the master class at Colombia, Wilson associated the method with a concept of the system of law sources, that gives almost absolute supremacy to the Constitution, codes and laws, and discredits the opinion of judges or even judges of supreme courts of justice.42
Finally, as a direct corollary of Gilli’s arguments, I could even propose the hypothesis that the master class method predominant in Latin American law teaching is strongly intertwined with a form of relating to power (given that the law is a manifestation of power), that emphasizes the prestige and value of the authority, to the detriment of autonomy, critical opinion, creative thinking, and individual responsibilities.43
Despite its predominance, the master class method has not stopped being criticized by a good number of law professors. On the contrary, the need to make important changes in how law has been traditionally taught in Latin America and Mexico has been discussed at various meetings. In fact, the method has been repeatedly criticized in the different Latin American Law School Conferences, where the need to introduce an active teaching methodology, that demands direct and constant participation from students has been stressed.44
As Fix-Zamudio says, it has been reiterated in these conferences that it is necessary for the professor to abandon the use of the monologue and move to a dialogue with the students. However, this proposal has faced many difficulties:
Since in addition to the weight of the oratorical tradition of the faculty and students’ passivity, other factors should be also added, such as the excessive number of students in the classroom, the lack of teaching staff; the shortage of bibliographic material, newspapers and periodicals, as well as the lack of students’ interest, since they are not used to working continuously and permanently on the topics mentioned in the programs.45
In fact, at a second conference held in Lima, Peru, in 1961, it was concluded that law teaching should be “active” and should reconcile the teaching of theory and practice, with “practical teaching” understood as teaching oriented at solving practical cases and problems.46
Another Latin American professor, Dr. Jorge Witker, following the same line of criticism, has outlined two important disadvantages of the master class method:
a) It does not accept that there is a crucial difference between the knowledge conveyed by the professor and what the students really acquire. Today we know that people only learn whatever they are interested in or what they learn through direct learning experiences. The rest can be memorized for a test and then forgotten with no harm...
b) It does not accept that the learning process is not aimed at acquiring knowledge, but rather at creating mental habits, attitudes, source handling, and problem-solving training.47
Faced with these deficiencies, that professor proposed the following:48
To develop a method in which the student is the center and the person in charge of her process of education, giving the professor a secondary and counseling role (moving the central focus from the learned professor to the student as the one with a leading role in the educational process).
Motivated and stimulated students should prepare materials given to them in advance and should arrive to class with questions and concerns, willing to have a creative and fruitful academic dialogue, under the professor’s guidance.
It is necessary to give to law teaching a nature of being a discussion. “Law cannot be presented as unchanging knowledge, established in a system, but rather as a set of problems in random order that have more or less provisional answers or attempted answers and that obey different values in given situations”.49
The class should establish a collective search, linked to social situations where the legal phenomenon operates by reproducing the real mechanisms for producing the law in the classroom.
To link legal studies with the legal social reality of our countries.
Finally, we should keep in mind that aside from Latin American criticism, whether “internal” or “domestic”, of the master class method, there is also the “external” criticism, from the USA, through the movement known as “Law and Development” that dates back to the 1960s and early 1970s. As Wilson reports, this movement, financed by the Ford Foundation, and the federal US agency known as AID (Agency for International Development), tried to export the pedagogic techniques of US law schools, as well as other aspects of the American legal culture (as part of an ambitious program for promoting legal reforms in Asia, Africa and Latin America that included, among other things, an allocation of about 25 million dollars) to “third-world countries”.50
However, the program was a complete failure in terms of “transplanting” the Socratic and case methods in Latin American law schools, which made a disapproving American observer assert that the “legal assistance” program had been a strange mixture of good intentions, optimism, interest, arrogance, ethnocentrism and simple lack of understanding.51
It is possible to conclude that important impulses and arguments for a reform of the methodology for teaching law have emerged from Latin America’s experience. However, at least until recent times, said proposal has not aroused interest.52 Inertia and treachery (and created interests) have such a stronghold, that since the First Latin American Conference of Law Schools (1959) to date, little progress has been made.
2. Law teaching in Mexico
The Mexican Legal system has undergone important changes over the last decades. According to some authors, these changes have led to a greater intervention in the rules and legal institutions in the social life of Mexico, and have demanded that the legal system have a new function, “which means that rules and legal institutions must start operating as effective means of regulation and solution of disputes, rather than a merely symbolic resource or a simple point of reference for negotiation”.53
In fact, apparently, the process of legal change that has taken place in Mexico aims at having a greater degree of autonomy in law in terms of policy. This has demanded and will demand from Mexican society a “difficult learning process” which also means “accepting that times, the language, the rites, the logic and the internal dynamics of law, should remain alien, even incomprehensible, in terms of everyday life”.54
Along this line and referring to the constitutional law, Jose Ramon Cossío has stated that the change in the conditions of policy domination in Mexico has caused the representation —given by Mexican legal scholars to the Constitution and the explanations they have given to the rules created— to lessen in importance. It points towards the need to build a new “paradigm”, and its central focus must be a functional conception of law. According to Cossío, the new paradigm should consist of an essentially regulatory approach that conceives the constitution as a set of hierarchical rules, from which legal operators can make alternative interpretations.55
Finally, Cossío identifies a new implication of the regulatory approach that seems to be perceived in the evolution of the Mexican legal system: an increase of the “fight for the regulatory language”. In this process, the different interest groups will attempt to have their (subjective) point of view reflected in a legal rule, to make it “objective”. Thus, it will be supported and guaranteed by the driving apparatus of the State.56 From our point of view, that “fight” should not only demand that political power and social influence be put in gear, but also that critical technical-legal skills be brought in to build up law.
So, if we are truly witnessing the emergence of a new model or paradigm in the Mexican legal system, law teaching cannot stay on the sidelines. The new form of understanding and working with law requires a new way of teaching it. Future law operators must be given the elements that allow them to perform in a more complex and technical system commencing at school. Besides, if we see the emerging model of the legal system as part of a democratic State, we believe it is also the responsibility of law schools to form legal scholars by using methods that favor the development of democratic skills and attitudes —those of autonomy, critical judgment, creative thinking, responsibility— that also favor consistent conduct with that system, in citizens, policy makers and legal operators.57
In the face of the social and legal changes taking place in Mexico, law teaching should establish objectives that not only develop students’ erudition, but also a series of intellectual and technical skills, as well as attitudes toward legal processes and legal practice. Therefore, law teaching requires objectives that: 1) the student should be familiar with and handle legal terminology, rules, principles, and facts of legal relevance; 2) it should encourage the student to develop skills such as paraphrasing, comparing, contrasting legal concepts, arguments and principles; 3) it should promote the development of the ability to identify legal issues and define legal problems; 4) it should provide the ability to solve legal problems; 5) it should make it possible to develop the ability to critically judge the law, critically analyze the usefulness, efficiency and the social implications of legal doctrine and procedure, and incorporate non-legal perspectives into the process of solving legal problems; 6) it should develop the ability to summarize and create original conceptual frameworks and systems of a legal nature.58
In our opinion, the master class is not enough for achieving these objectives. This is because it is a method that promotes the students’ passivity, where the main function is to listen to the professor. Besides, it inefficiently favors the authority of the professor, who is supposed to know everything and whose role is that of informing the student of what law is, as though this were information that could be considered a given, and not a problem to be solved.59 Finally, the master class is inadequate because contrary to what the master class assumes, law is much more than the text of the law, and because values and principles coexist and even compete in law and legal operators need to balance, weigh, contrast and balance them.
It is fitting to say that we do not propose replacing the traditional master class with the case or problem methods. In fact, we hold that a plurality of methods is needed to enrich the law teaching-learning process. We believe that the option to make law teaching tie in with the legal changes that have taken place and that are about to take place in Mexico consists of supplementing the master class with other methods, particularly, the problem and the case methods.
We believe that replacing the master class is not the best choice due to the following reasons:
Within our legal tradition, prior study of the legal dogma is an essential requirement for solving problems and understanding opinions. Without prior knowledge of the legislated law and its construction and doctrinal explanation, it is simply not possible to have the elements needed to find solutions to the problems or to understand the basis of court arguments in their opinions.60
As Héctor Fix-Zamudio suggests, it would be impractical to try to suddenly implant new pedagogic methods in law schools, without first training professors and students in the handling of the new didactic and learning techniques, “since otherwise the attempts to implement such techniques are reduced to oratorical invitations on their advantages, without any effectiveness in practice”.61
Besides, there is apparently no empirical evidence that shows the supremacy of one law teaching method over the rest. Such is, for instance, the conclusion Teich reached in his study.62
Finally, the master class method has an element that is still useful in modern legal teaching: it allows the professor to transmit relevant amounts of summarized and contextual essential information to students, in an environment in which there are time limits.
Specifically, the option proposed in this essay consists of combining the master class method and the problem method, since the latter includes the case method as an essential part of it.
We can take advantage of the ability of the master class method to transmit, dynamically and quickly, legislated law and previous doctrinal developments essential to be able to solve problems and understand the sense of the rulings. Furthermore, this method allows us to have a better coverage of the essential law topics included in the corresponding curricula, given the time restrictions faced in law courses. Also, the master class allows for an ordered and systematic study of the different issues included in law courses, through a presentation made by the professor.
We can take advantage of the problem method’s ability to promote the development of skills linked to practicing the profession, such as the ability to deal with problems for the purpose of studying and analyzing them so as to solve them. It is also possible to take advantage of this method’s broad scope, which, thanks to the assignment of roles, makes students examine the problems from the perspective of the different contexts in which the legal practice takes place: litigation, negotiation, arbitration, counseling, corporate planning and the judicial role. Moreover, and as happens in practice, the method would promote the introduction of non-legal factors into the search for solutions, and give students exposure to the ethical dilemmas set out in legal practice. We could also take advantage of the active nature this method has, in the sense that it demands that students develop the necessary research techniques to find legal texts, excerpts from Supreme Court decisions and doctrine essential for solving the problems posed in classes.
From the case method, we can take advantage of the training to identify and analyze a legal source, which is more and more important in the Mexican legal system, as in the case of court opinions. This way it is possible to develop techniques that are more and more necessary to summarize the relevant information of an opinion, to thus use it to find solutions to legal problems. Likewise, this method encourages students to learn how courts reason, and to expose them to real facts and problems and to the way judges solved them. Thus, students see how they are applied in the law practice and the effects opinions have on the legal sphere of the parties involved in a lawsuit.
I believe the way to a plurality in didactical methods in Mexican law schools would call for a series of adjustments in various aspects of the teaching-learning process that would affect both students and professors.
First of all, it would require restructuring class preparation, its structure and the use of class time. This is necessary because introducing problems in class requires that the professor devote time to designing “good problems”, in addition to looking for and analyzing relevant opinions and preparing the part of the class that would be carried out under the master class format. On the other hand, I should mention that the master class would be organized based on the problems and opinions that would be discussed in class. In is role as guide and counselor of students’ work to find solutions to the problems, the professor must bear in mind the problems that will be exposed in class when preparing the master class.63 Besides, the professor must prepare material so that the students can have elements to solve the problems. This does not mean that the professor is responsible for providing all the material; on the contrary, it would be even advisable to let the students be responsible for finding at least part of the material, so as to help them develop basic techniques for legal research that help them get to the sources of law needed to solve problems by themselves.
At medium-term objective, the ideal would be for the professor to have, if not a book of problems, at least a collection of problems that he could renew, supplement or update over the years, so as to use it as a supplement to the courses.
Secondly, adopting a variety of methods, as proposed herein, would also require a change in terms of evaluations of the course. There should be a correlation between what it is taught in class and the teaching methods used in class on one hand, and how the course is evaluated, on the other. This means that evaluation of the courses based on the use of the master class method, the problem method and the case method would require the use of evaluation techniques that examine students’ progress, in terms of understanding and handling of basic legal concepts, as well as their ability to solve problems and skill to organize, understand and use the information included in court decisions.
Thirdly, it would be highly convenient for the professor to design the problems used in class based on real problems, and not only hypothetical problems. This would imply that the professor necessarily needs to deal with files from real trials, that not only examines an opinion, but the whole development of the case, from filing the suit to sentencing, and if the case might be, from filing the appeal to the upper court opinion.
Of course professors would be responsible for obtaining and analyzing the files. It would be very useful if there were a system that makes access to concluded files easier since this is the only way to know the details of facts, claims, parties’ arguments, the procedural context of the case and, of course, the court decisions, as well as the reasoning supporting them.
Fourthly, it is necessary to understand that solving problems requires the analysis of judgments, which requires the development of analysis techniques similar to the “case briefings” in the Common Law, that serve as tools to distinguish between the ratio decidendi and the obiter dicta; to separate the wheat from the chaff and get to the relevant questions of law; to distinguish the main arguments and reasoning on which court opinions are based and to understand how the court opinion is made.
Students are also required to know how to link the analysis of judgments or opinions (and how they relate to legislated law and doctrinal opinions) with the search for solutions to problems, from the different points of view and the different roles, which include those of legal operators.
The truth is that in the Roman legal tradition there is no principle of stare decisis, the rule of court precedent as there is in the case of the common law. However, the analysis of opinions is still relevant, not only because we have a kind of limited stare decisis (our concept of defined court precedents or “jurisprudencia definida”) in Mexico, but also because, in practice, litigators should take court opinions into account when preparing their arguments, even if they are isolated excerpts of supreme court decisions.
This observation lead us to another fundamental topic that I will only discuss incidentally, but that might have a great impact on how we teach law in Mexico. I am referring to how opinions are published in Mexico. As we know, their publication is very limited. At a federal level, the Weekly Federal Court Report (Semanario Judicial de la Federación) publishes excerpts pronounced by federal courts. They are not published immediately, but show a delay of several months. Besides, they are hardly or rarely published as complete judgments (or at least the considerandos or the whereas sections), which give us a more detailed and in-depth knowledge of the case. On a local level, the publication of opinions is even more limited, if not nonexistent.
The analysis of complete judgements is very important for students to see not only the outcome, but also the reasoning that led to that result. Likewise, if the publication of opinions were quick and immediate, professors would be able to organize classes to discuss the current issues under legal debate.
Moreover, the analysis of complete opinions would make it possible for students to see how the principles and rules included in a judgment can be applied to future cases, and identify the elements, theoretical and empirical considerations, and the methods used by judges to solve the cases heard and pronounce an opinion.
Finally, the analysis of complete opinions would allow students to have practice in the constructive criticism of judgments, by comparing them with the institutional and cultural standards that define how court decisions must be produced in a given legal system. (This activity is essential in a Rule of Law as an element of control and recognition of the Judiciary in the constitutional democracy we hope to have.)
There are important reasons that justify a modification in the law teaching methodology in Mexico. The social change that has taken place over recent decades, which I have defined in another article as legal transition,64 demands an adjustment in how we teach and learn law. The need to make this adjustment is related to the autonomous nature that law is supposed to have, within the framework of the constitutional Rule of Law that we are trying to build in Mexico. The use of a variety of teaching methods in law schools, that combines the master class method, the problem method and the case method would contribute significantly to the progress made in this field.
It is not easy, however, to break with the inertia of so many years. Authorities in law schools, their fellows, professors and students, should be first informed of the features of the more “active” methods explained here. They should try to identify the techniques through which those methods can be applied in practice, along with the traditional master class method. They should also try to develop the essential materials so that these methods can be used to benefit the class. Finally, and maybe most importantly, they should induce a change in the mentalities of both professors and students, so that they accept to be part of a new teaching dynamic that is more active, open and to some extent more uncertain, but that will benefit the formation of the law scholar profile Mexico needs.
* Translated by Carmen Valderrama Ramos.
** Researcher at the Legal Research Institute of the UNAM.
1 Fix-Zamudio, Héctor, “Algunas reflexiones sobre la enseñanza del derecho en México y Latinoamérica”, in Witker, Jorge (comp.), Antología de estudios sobre enseñanza del derecho, Mexico, UNAM, 1995, pp. 82 and 83.
2 Wilson, Richard, “The New Legal Education in North and South America”, Stanford Journal of International Law, Vol. 25, 1989, p. 394.
3 Friedman, Lawrence M., A History of American Law, 2nd ed., Touchtone Book, Simon & Shuster, 1985, pp. 612 and 613.
4 Ibidem, p. 613.
5 Moskovitz, Myron, “Beyond de Case Method: It’s Time to Teach with Problems”, Journal of Legal Education, Vol. 42, No. 2, June 1992, pp. 242 and 243.
6 Pérez Lledó, Juan A., “La enseñanza del derecho en Estados Unidos”, Doxa, No. 12, 1992, p. 75.
7 “The questions should lead students’ reasoning so that they can distinguish the legal conflicts from economic or ideological ones; so as to make a difference between rules and facts, and recognize relevant facts; for them to analyze all the possibilities and alternatives to possible solutions, so as to discern possible inconsistencies in the judges’ reasoning and the social or personal values and interests underlying court opinions. It is important to point out that opinions must be systematically selected, in compliance with a thematic criteria and the evolution of case law in creating rules —holdings— and doctrine in obiter dictum”. Gilli, María Angélica, “La enseñanza del derecho constitucional y el sistema democrático”, La Ley, Year 65, No. 233, December 5, 2001, p. 2.
8 Zarr, Melvyn, “Learning Criminal Law through the Whole Case Method”, Journal of Legal Education, Vol. 34, No. 4, 1984, p. 697.
9 Frank, Jerome, Courts on Trial, Princeton, New Jersey, 1949, pp. 225-233; quoted by ibidem, p 698.
10 Watson, Alan, “Legal Education Reform: Modest Suggestions”, Journal of Legal Education, Vol. 51, No. 1, March 2001, p. 93.
11 Another description can be found in Pérez Lledó, Juan A., op. cit., note 6, pp. 86-87: “This kind of class would develop more or less as following: the professor starts the lesson by calling on without prior notice one of the students, who is asked to ‘present the case’, which means that the student will have a few minutes to set out the basic information about the facts, the legal issues that arise, the arguments used, and the judge’s final decision, according to the case chosen for that day. Thereafter, that same student is thoroughly examined on what he has just said, and the professor presses him to clarify his responses, backing him towards a wall on the most relevant issues. Sooner or later, the student is cornered, unable to answer satisfactorily to a question, and then other classmates, willing to answer the question, raise their hands. The professor chooses one of them and carries on the debate with this student, even though it is sometimes limited to clarifying the problem at hand, and the questioning of the first student continues, which can take almost all of the hour and a half that a class generally lasts. But usually at least a dozen of main characters and a higher number of sporadic participants take part in the class. Most of the time, professors interrupt the debate to launch a brief lecture on a specific point and then carry on with the discussion. Eventually, the professor tends to compile the principal conclusions they have reached ‘together’, even though some professors limit themselves to asking questions and posing problems during the entire lesson, leaving each student to draw his own conclusions”.
12 Aldisert, Ruggero, J., Logic for Lawyers, 3rd ed., National Institute for Trial Advocacy, 2001, p. 128.
13 Kerpter, Janneen, “Creative Problem Solving vs. The Case Method: A Marvelous Adventure in which Winnie-the-Pooh Meets Mrs. Palsgraf”, California Western Law Review, Vol. 34, No. 2, 1998, p. 351.
14 Derenbach, John, C. et al., A Practical Guide to Legal Writing and Legal Method, 2d ed., Colorado, Rothman & Co., 1994, p. 20.
15 Aldisert proposes another plan, which basically coincides with Derenbach’s, ibidem, pp. 129-134.
16 “Since facts are closely linked to the questions of law and the rules, it is impossible to know which facts are relevant without knowing first what the court decided”. Ibidem, p. 26.
17 The authors define policies as the purpose behind any legal norm. They are similar to reasons, but broader. Not every opinion necessarily contains a justification in terms of policy considerations. Likewise, Derenbach et al. suggest a way to differentiate reasons from policies: reasons show how the judge reached to a decision; policies tell us why the decision benefits society. Ibidem, pp. 27 and 28.
18 Ibidem, p. 5.
19 “Upon arriving to the class —after reading all the cases— the student should be able to analyze the problems included in them; distinguish relevant facts from all the facts mentioned; say how and why the case was brought to the trial court; which theory was used by the parties; characterize legal problems; show who the appellants are; their grievances and foundations; say who won the appeal and what he won; determine the reasons and the style of the appellate court; the legal precedent established, and finally, evaluate the justice of the decision and its relevance and sociopolitical effects”. Idem.
20 Moskovitz, Myron, op. cit., note 5, pp. 243 and 244.
21 The following list of the advantages of the case method can be found in authors such as Moskovitz, Myron, ibidem, p. 246; Teich, Paul, P., “Research on American Law Teaching: is there a case against the case system?”, Journal of Legal Education, Vol. 36, No. 2, 1986, p. 170; Areeda, Phillip E., “The Socratic Method”, Harvard Law Review, Vol. 109, No. 5, 1996, pp. 911-922.
22 What this method seeks is to “provide a good methodological training, rather than the accumulation of encyclopedic information on legal rules and doctrines by rote. The main objective is not ‘teaching norms, but teaching how to set out, analyze, compare, build and evaluate concrete factual situations and legal arguments and decisions (mostly judicial, but also legislative) and to ‘project’ case and legislative lines on new situations. It mostly seeks to strengthen analytical and legal reasoning skills, as well as oral and written expression”. Pérez, Lledó, Juan A., op. cit., note 6, pp. 81 and 82.
23 These disadvantages can be extracted from the works of Moskovitz, Myron, op. cit., note 5, pp. 244 and 245; Watson, Alan, op. cit., note 10, pp. 91-93; Teich, Paul P., op. cit., note 21, p. 171; Zarr, Melvyn, op. cit., note 8, pp. 697 and 698; Kerper, Janeen, op. cit., note 13, pp. 351-359; and Pérez Lledó, Juan A., op. cit., note 6, pp. 79-90.
24 According to Kerper, the case method, instead of teaching law students to think like lawyers, the case method teaches them to think like judges. This is not a bad thing, but just the opposite. But we must recognize that when they finish law school, students will have more options before them than those offered by the judiciary. Kerper, Janee, op. cit., note 13, p. 371.
25 Professor Areeda first tells us what the Socratic method is not: a) The Socratic method is not the same as the case method (both complement each other in law teaching in the USA, but they are not the same); b) it is not recitation of assignment; c) it is not a sort of “catechism” with prepared questions and answers that students must learn; d) it is not an opinion survey; e) it is not a method based on “mega-level questions” (“What is justice?”); f) it is not a method in which the professor sometimes stops his lecture to toss the class one question, and once it is answered, he continues his lecture at the same pace. Areeda, Phillip E., op. cit., note 21, pp. 911-914.
26 Ibidem, p. 915.
27 Ibidem, p. 919.
28 Pérez, Lledó, Juan A., op. cit., note 6, p. 80.
29 Moskovitz, Myron, op. cit., note 5, p. 247.
30 Here we follow the detailed description of authors such as Ogden, Moskovitz, Kerper, Teich, as well as Nathanson, Stephen, “Designing Problems to Teach Legal Problem Solving”, California Western Law Review, Vol. 34, No. 2, 1998; Morton, Linda, “Teaching Creative Problem Solving: A Paradigmatic Approach”, California Western Law Review, Vol. 34, No. 2, 1998; and Johnson, Andrea L., “Teaching Creative Problem Solving: A Paradigmatic Approach”, California Western Law Review, Vol. 34, No. 2, 1998.
31 It is important to note that before describing the problem method of law teaching, a previous step is required. This step consists of defining what a problem is. A problem, for the purposes of this method, is the factual material law students work with when they simulate what lawyers do in practice. See Nathanson, Stephen, op. cit., note 30, p. 326.
32 Ibidem, p. 327.
33 Moskovitz, Myron, op. cit., note 5, p. 266.
34 Nathanson distinguishes “problems” from “exercises” in the following manner: “Typically, in law school problems, facts are described in such a way as to raise legal issues, that is, unanswered questions about which rules apply in favor of which party. These types of problems, which one researches distinguishes from real problems by referring to them as “exercises”, are often given to students after reading assignments or didactic law teaching to reinforce students’ memory and understanding of legal rules in a particular subject. Students are asked to identify the issues, apply the relevant rules, and manipulate them in legal argument. They are not ordinarily asked to define the client’s problem, let alone resolve it”. Nathanson, Stephen, op. cit., note 30, p. 333.
35 This method helps students learn concepts “through realistic problems... in concrete, practical contexts. The result is that knowledge learned through discovery is arguably more deeply learned and better retained. Another advantage is that learning through discovery improves problem-solving skills essential for professional practice. Combined with reflection, discovery can promote the development of a learning stance to all problems so that once in professional practice, the student will continue to regard each problem situation as a learning experience from which new knowledge can be derived. From the standpoint of professors who are humanistically inclined, discovery learning can also be appealing because facilitating the process of successful discovery in others is both intriguing and satisfying”. Ibidem, p. 343.
36 By using the case method, students examine solutions to problems, but not how to solve a problem. Ogden, op. cit., note 30, p. 662.
37 In his critique of the case method, Professor Delaney identifies a series of skills that are not taken into account (not taught) by this method: uncovering facts from clients, witnesses, documents and elsewhere; knowing how to interview a client; client counseling; negotiating and mediating; writing; motion, trial and appellate advocacy; advocacy with administrative agencies at federal, state and local levels; working collaboratively with others; reflecting on the underlying values implicit in cases and the personal choices inherent in different forms of lawyering. Delaney, John, How to Brief a Case, An Introduction to Legal Reasoning, 1983, quoted by Kerper, Janeen, op. cit., note 13, pp. 358 and 359.
38 Moskovitz disagrees with this disadvantage, which is said to be exclusive of the problem method. The author says that small classes are best for students, no matter what the teaching method. Moskovitz, Myron, op. cit., note, p. 261.
39 Ogden, op. cit., note 30, p. 655.
40 Witker, Jorge, La enseñanza del derecho, crítica metodológica, Mexico, Editora Nacional, 1975, pp. 50 and 51.
41 Ibidem, pp. 46 and 47.
42 Wilson, Richard, op. cit., note 2, p. 380.
43 Gilli, María Angélica, op. cit., note 7, p. 4 et seq.
44 Fix-Zamudio, Héctor, op. cit., note 1, p. 51.
45 Ibidem, p. 83.
46 Wilson, Richard, op. cit., note 2, p. 394.
47 Witker, Jorge, La enseñanza del derecho…, op. cit., note 1, p. 51.
48 The proposals included in ibidem, pp. 54 and 55 are summarized below.
49 Ibidem, p. 54.
50 Wilson, Richard, op. cit., note 2, pp. 394-396.
51 Gardner, James, Legal Imperialism. American Lawyers and Foreign Aid in Latin America, 1980, pp.55 and 56, as quoted by Wilson, Richard, op. cit., note 2, p. 395.
52 It should be mentioned, however, that in recent times, the New Law School of the CIDE, in Mexico, has designed an entire curriculum in which the case method plays a fundamental role.
53 López-Ayllón, Sergio and Fix-Fierro, Héctor, “Tan cerca, tan lejos. Estado de derecho y cambio jurídico en México (1970-1999)”, Boletín Mexicano de Derecho Comparado, No. 97, January-April 2000, p. 156.
54 López-Ayllón, Sergio and Fix-Fierro, Héctor, “Cambio Jurídico y autonomía del derecho: un modelo de la transición jurídica en México”, in Serna de la Garza, José Ma. and Caballero Juárez, José, A., Estado de derecho y transición jurídica, Mexico, UNAM, 2002, pp. 136 and 137.
55 Cossío, José Ramón, Cambio social y cambio jurídico, Mexico, Miguel Ángel Porrúa, 2001, pp. 80 and 99.
56 Ibidem, p. 265.
57 See Gilli, María Angélica, op. cit., note 7, p. 4.
58 I am closely following the ideas presented by Josephson, Michael, Learning and Evaluation in Law School, Vol. 1, pp. 50-98 (This was a presentation given at the Annual Meeting of the Association of American Law Schools, January 1984). Quotation taken from Teich, Paul P., op. cit., note 21, p. 167.
59 In his description of the different concepts of law that exist in the model of legislative Rule of Law, on one hand, and constitutional Rule of Law, on the other, Zagrebelsky points out that in the latter, the legal code is understood as a “problem” (that is, the identification of the applicable norm to a concrete case and its eventual application, depend on a process of discussion for analysis, interpretation, and integration); while, under the first model, the legal code was considered “data” (that is, as something given, fully determined by the main source and almost omnipotent of law: the law). See Zagrebelzky, Gustavo, El derecho dúctil, Madrid, Trotta, 1999, pp. 31-39.
60 Javier Tamayo supports this school of thought, saying: “But talking about the learning of a given legal code, it is worth establishing this principle categorically: For the proper handling of legal casuistry, an essential requirement in written law systems is the theoretical learning of the legal norms that apply to a concrete case. Thus, as long as the cognizant subject has no idea, even if superficial, of the existence of normative principles, with difficulty will he be able to delve into the meaning of the cases being studied”. Tamayo Jaramillo, Javier, “La casuística como recurso de aprendizaje jurídico”, in Witker, Jorge (comp.), Antología de estudios…, cit., note 1, pp. 235 and 236.
61 Fix-Zamudio, Héctor, op. cit., note 1, p. 83.
62 Teich, Paul, op. cit., note 21, p. 185.
63 The work of the counselor as carried out by the professor should be carefully measured, in such a way that it is enough to give the student the necessary keys to solve problems, but not too many that would suppress the student’s initiative and inhibit creativity.
64 Serna de la Garza, José Ma. and Caballero Juárez, José A., op. cit., note 54.