Learning by Accident, Learning by Design: Thinking about the Production of Substantive Knowledge in the LRW Classroom

Abstract

As law teachers, we understand that simulation-based courses provide critical avenues for students to learn lawyering skills. We want those courses to be rigorously designed, have clearly delineated learning outcomes, accurately assess student learning, and provide opportunities for our students to become further engaged – maybe even inspired – by the idea of law practice. As law teachers, we would also prefer that student effort is in no way wasted by obtaining knowledge in a simulation course that will never be useful to them. But that is a challenge in the context of simulation-based courses, where acquisition of knowledge of the issue area chosen as the subject of the simulation is not the primary purpose of the course. How can we do a better job of designing law school simulation courses where the substantive legal knowledge gained by our students has value to them, regardless of career path, and serves the law school’s goals of producing lawyers who are knowledgeable, ethical, and skilled? In this article the authors seek to address the knowledge our students acquire that is sometimes universally useful and intentionally transmitted, but also sometimes seemingly arbitrarily selected, and learned incidentally in the process of developing a skill. For the purposes of this article, we call the information that is learned in the process of developing a skill, “incidental declarative knowledge.” We use the term “incidental” to indicate that the knowledge itself is not the point (either primarily or at all) of the instruction, and can be swapped out with another body of knowledge with little effect on the desired learning outcome. We use the term “declarative” to connote formalized, substantive knowledge, as opposed to the acquisition of a skill – in essence, “what” knowledge as opposed to “how” knowledge. Thus, “incidental declarative knowledge” is a body of formalized knowledge that is learned in the service of skills development, but which is interchangeable with other bodies of knowledge that can serve the same pedagogical purpose. Law school simulation-based courses can be – and are - designed using a practically endless selection of substantive legal issues. Thus, the incidental declarative knowledge acquired in the course of learning a skill in law school may well be completely superfluous to a student’s other learning goals. However, the literature on LRW teaching specifically and simulation-based courses generally has yet to frontally address this issue. The authors of this article are both professors who teach first-year Legal Research and Writing at Temple University’s Beasley School of Law. After several years of teaching from more traditionally designed LRW problems, the authors set out to develop a problem that directly addressed the issue of incidental declarative knowledge acquisition. This article provides a more solid framework for talking about this problem design issue, and to suggest using professional responsibility issues as one possible solution. The authors approach the incidental declarative knowledge problem from the perspective of LRW, but our observations will prove useful in any simulation-based course where doctrine isincidentally taught in the service of skills training.