View metadata, citation and similar papers at core.ac.

uk brought to you by CORE

digitalcommons.nyls.edu

Faculty Scholarship Articles & Chapters

2009

Sim City: Teaching “Thinking Like a Lawyer” in

Simulation-Based Clinical Courses
Kris Franklin
New York Law School, kris.franklin@nyls.edu

Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters

Part of the Legal Education Commons, and the Legal Profession Commons

Recommended Citation
Sim City: Teaching “Thinking Like a Lawyer” in Simulation-Based Clinical Courses

This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in
Articles & Chapters by an authorized administrator of DigitalCommons@NYLS.
 KRIS FRANKLIN

Sim City: Teaching "Thinking Like a

Lawyer" in Simulation-Based Clinical
Courses

ABOUT THE AUTHOR: Kris Franklin is a professor of law at New York Law School and the director of
New York Law School's Academic Skills Program. The author wishes to express her appreciation to Elizabeth
Cooper, whose thinking about teaching clinical simulations prompted this piece.
I. INTRODUCTION

To American legal education, the significanceof being able to think like a lawyer lies
not only in its potentialto encompasssignficant educationalimperatives but also in
the powerfulpedagogy with which the phrase is inextricably linked.'

Referring to classic Socratic questioning, the authors of the widely-praised

Carnegie Report thus sweepingly (and accurately) advance the invisible syllogism
undergirding the design of legal education in the United States:
1. American law students must learn to "think like lawyers."
2. Case-based Socratic dialogue is what teaches students to think like
lawyers.
3. Therefore law schools base their primary teaching on Socratic discussion
2
of assigned case law.
The Report acknowledges the utility of the Socratic method, which provides a kind
of "cognitive apprenticeship" in legal thinking,3 but bemoans the fact that other
approaches to and dimensions of legal education are too often thought of as
add-ons. 4 As an alternative to the traditional model, the Report calls for a more
5
effective integration of clinical education and doctrinal teaching.
The authors of the Carnegie Report and most commentators on legal training in
the United States take as a given the notion that courses in basic legal doctrine,
taught through Socratic questioning about assigned series of cases, are fundamental
not only, or even primarily, because they teach about basic topics of law, but because
they hone students' habits of mind. 6 In short, the Carnegie Report authors, like
many observers of legal education, appear to take for granted the second proposition

1. WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAw 47
(2007) [hereinafter CARNEGIE REPORT].

2. This construction deliberately echoes the traditional syllogism pattern: "All men are mortal. Socrates is
a man. Therefore, Socrates is mortal." RUGGERO J. ALDISERT, LOGIC FOR LAWYERS: A GUIDE FOR
CLEAR LEGAL THINKING 46 (3d ed. 1997). The pattern is frequently used to teach deductive reasoning,
to the point that its inclusion in textbooks designed to introduce law students to legal reasoning is
commonplace, perhaps even expected. See, e.g., id. at 46-47; CHARLES R. CALLEROS, LEGAL METHOD
AND WRITING 68 (5th ed. 2006); CATHY GLASER ET AL., THE LAWYER'S CRAFT: AN INTRODUCTION
TO LEGAL ANALYSIS, WRITING, RESEARCH, AND ADVOCACY 64 (2002); NADIA E. NEDZEL, LEGAL
REASONING, RESEARCH, AND WRITING FOR INTERNATIONAL GRADUATE STUDENTS 68-69 (2d ed.
2008).
3. CARNEGIE REPORT, supra note 1, at 28.
4. See id. at 191-92.

5. See id. at 194-200. A main focus of the Carnegie Report is to advocate for what it calls an integrative
approach to each aspect of the legal apprenticeship-the cognitive, the practical, and the ethical-social.
Id.

6. See, e.g., MARTHA RICE MARTINI, MARX NOT MADISON: THE CRISIS OF AMERICAN LEGAL EDUCATION
58 (1997). But see RoY STUCKEY ET AL., BEST PRACTICES FOR LEGAL EDUCATION: A VISION AND A
ROAD MAP 130-61 (2007) (raising questions about the efficacy of using Socratic dialogue as the sole
means of large-classroom teaching in law schools, and discussing ways in which the technique may best
be employed); Peggy Cooper Davis & Elizabeth Ehrenfest Steinglass, A DialogueAbout Socratic Teaching,
23 N.Y.U. REV. L. & Soc. CHANGE 249 (1997) (providing support for the analysis of the use of Socratic
teaching set forth in Best Practicesfor Legal Education).
NEW YORK LAW SCHOOL LAW REVIEW VOLUME 53 12008/09

in our invisible legal education conjecture: 7 that case reading and attendant interactive
8
questioning constitute the way to teach law students the intricacies of legal reasoning.
Further, they seem to presume (wrongly in many cases) 9 that the goal of acculturating
law students into the rigors of legal reasoning is substantially accomplished at the
conclusion of the boot camp-style immersion students receive from the outset of
their legal education.1
This explains why we often openly acknowledge that students may not necessarily
retain the finer points of, say, vicarious liability doctrine in tort law-most important11
is that they learn how to approach and reason their way through the legal problems.
Once they have significantly mastered that skill, the thinking goes, law students are
ready to begin to learn more precisely the subject matter that they may encounter
after graduation, as well as to begin studying the less conceptual skills that they will
need in their profession. Clinical education in all of its forms exists to serve this

7. 1 use the term "conjecture" here as mathematicians and logicians do: to mean something generally
presumed to be accurate, but not yet irrefutably proven. Merriam-Webster's dictionary gives as its third
definition of the term, specific to mathematics, "a proposition ... before it has been proved or disproved."
MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 263 (11th ed. 2003). But the connotation of the term

generally carries with it the presumption that the conclusion is probably true. See, e.g., Wiktionary,
http://en.wiktionary.org/wiki/conjecture (last visited Nov. 14, 2008) (indicating that, in mathematics,
the term refers to a statement "likely to be true based on available evidence, but which has not been
formally proven").

8. 1 am somewhat overgeneralizing here, of course. More importantly, in using the broadest and most base
stereotypes about learning in law school, this discussion necessarily omits the now widespread
acknowledgment of the central role that first-year training in legal writing has in acculturating students
to legal thinking. But in seeking to describe the hallmark of contemporary indoctrination into legal
modes of reasoning, the Carnegie Report reflexively, and almost exclusively, credits Socratic questioning
in traditional doctrinal subjects. See CARNEGIE REPORT, supra note 1, at 47-87, 194.

9. The rise in the importance of the field of academic support in law schools can be seen as an
acknowledgment that many of the students who do not thrive or initially succeed in law school are
nonetheless capable of doing so if taught more individually, or through different means. SeeJean Boylan,
The Admission Numbers Are Up: Is Academic Support Really Necessary?, 26 J. Juv. L. 1, 7-12 (2006)
(assessing the value of academic support programs for ensuring the success of both traditional and non-
traditional law students in the classic legal curriculum); Paula Lustbader, From Dreams to Reality The
Emerging Role of Law School Academic Support Programs, 31 U.S.E L. REv. 839 (1997) (exploring the
history of the academic support movement in legal education and describing how its teaching
supplements traditional legal education).

10. See CARNEGIE REPORT, supranote 1, at 185-86.

11. See, e.g., SARAH LAWRENCE-LIGHTrOOT, RESPECT 166-67 (1999) (providing a profile of law professor
David Wilkins and observing that he is little concerned about teaching substance that "might be
accomplished through directed reading" and he sees his primary goal as helping students "feel
comfortable and to teach them a certain way of thinking ... what we call thinking like a lawyer").
Most explorations into the purposes of legal education, particularly the most foundational training
afforded in the first year of law school, attend far more heavily to the teaching of particular habits of
mind than to the acquisition of specific knowledge. See, e.g., Bethany Rubin Henderson, Asking the Lost
Question: What Is the PurposeofLaw School?, 53 J. LEGAL EDUC.48, 56-63 (2003) (defining the primary
purpose of contemporary legal education as learning to think as lawyers do and exploring the functional
and normative elements of such thinking).
SIM CITY

latter profoundly practical function, in complement to the doctrinal instruction and

12
rehearsal of legal reasoning skills offered in casebook courses.
This conception of clinical teaching as an introduction to fundamental professional
skills can undoubtedly be a good thing.13 Clinical education has long been thought
of as a way to bring more active learning, excitement, engagement, and even passion
into the law school environment.14 Clinical work allows, indeed encourages, students
to connect their theoretical knowledge to the skills essential to lawyering work. But
this attitude also reinforces the "additive" notion that the Carnegie Report ostensibly
deplores: the idea that clinical experiences are something in addition to basic legal
education, not that they are basic legal education in and of themselves.15 Clinical
education is not conceptualized as offering the same kind of "cognitive apprenticeship"
as doctrinal classes; rather it is conceived as a complement to this education. 1 6 In
other words, it does not teach students to think like lawyers, it trains them to act like
lawyers once the cognitive training is fully in place.
Even clinicians sometimes make distinctions between the introduction to
interactive lawyering skills thought to be taught in simulation-based classes, often
open generally to second- and third-year law students, and the presumably more
rigorous learning in the closely-supervised live-client clinics, usually offered only to
small numbers of third-year students. 7 The idea seems to be that the simulation
courses are somewhat akin to training wheels for lawyering skills-an arguably

12. With its emphasis on clinical education as a professional apprenticeship, the Carnegie Report certainly
adopts this view of clinical education as inherently focused on the practical aspects of legal training. See
CARNEGIE REPORT, supra note 1, at 100, 195.

13. Indeed many have suggested, and several schools have adopted, the inclusion of training in clinical
skills as a required part of beginning law students' formative curriculum. See, e.g., Stefano Moscato,
Teaching FoundationalClinical Lawyering Skills to First-YearStudents, 13 J. LEGAL WRITING INST. 207
(2007).
14. See Deborah Maranville, Passion, Context, and Lawyering Skills: Choosing Among Simulated and Real
ClinicalExperiences, 7 CLINICAL L. REv. 123, 126-28 (2000). This notion that clinical methodologies
generate passion may account, at least in part, for the connection sometimes drawn between clinical
education in law and the recent movement focused on "humanizing" legal education. The "humanizing
legal education" scholarship is not necessarily drawn directly from the pedagogical thinking of clinicians,
but seems to take for granted that hands-on teaching in law schools better serves law students, and does
less damage to their emotional well-being and self-confidence than more traditional large-classroom
modes of instruction. See Justine A. Dunlap, "I'dJustas Soon Flunk You as Look at You?" The Evolution to
Humanizing in a Large Classroom, 47 WASHBURN L.J. 389, 391 (2008) (offering that "because of the
nature of clinical legal education, most clinical law teachers do not need to do anything special to
'humanize' their teaching; it is an inherent part of the undertaking").
15. See CARNEGIE REPORT, supra note 1, at 190-91.
16. See id. at 191.

17. Although, the distinctions among these traditional clinical offerings may be becoming blurred or
perhaps obsolete. See David A. Binder & Paul Bergman, Taking Lawyering Skills TrainingSeriously, 10
CLINICAL L. REV. 191 (2003) (asking whether "case-centered," live-client clinical teaching effectively
covers the basic practical skills of interviewing, counseling, or negotiation); Maranville, supra note 14, at
130-36.
NEW YORK LAW SCHOOL LAW REVIEW VOLUME 531[2008/09

helpful tool in the learning progression, but only an early step toward more advanced
course work covering the real thing.
In this essay I want to consider what happens if we think about clinical teaching
of law in much the same way that we have come to think about the most formative
stages of doctrinal teaching: that is, if we assume that the specific skills and
information clinical teaching emphasizes are important, but ancillary, benefits to the
ultimate project of "thinking like a lawyer." This project is a thought experiment: I
am not necessarily advocating for an entire refraining of the role of clinical teaching
in legal education. In fact, I believe that clinical education, perhaps most especially
the classic clinical experience of students being responsible for handling actual cases
or parts of cases under the close supervision of an experienced teacher/lawyer, does a
remarkably good job of simultaneously training students in all of the dimensions
described in the Carnegie Report.18 But by its very design this form of teaching is
resource-intensive, hence usually available to only a small segment of the law school
population. Moreover, it tends to be seen as a pinnacle educational experience in
legal education, rather than a basic one that is and ought to be part of students'
foundationallearning.
But I believe that imagining a different set of goals in clinical teaching,
particularly in the most introductory simulation-based courses, leads to a conclusion
that they are excellent places to learn and reinforce basic legal analysis. 9 Consequently,
these courses can be thought of not simply as offering hands-on training in the sort
of interactive skills not covered by large subject-driven lecture classes, nor only as an

18. That is, by design, the interaction between senior-lawyer and junior-lawyer that constitutes the teacher/
student relationship in a live-client clinical experience necessarily provides apprenticeship in the
cognitive, professional, and ethical domains that the Carnegie Report embraces. See CARNEGIE REPORT,
supra note 1, at 194-200.
19. I focus this essay primarily on simulation-based clinical teaching in part because the purposes of live-
client clinics are somewhat different and have been amply articulated. The legion of articles describing
the value of having supervised students represent clients as a learning experience could not usefully be
tallied here. For one evocative rumination on the value of this form of clinical teaching, see Ian
Weinstein, Teaching Reflective Lawyering in a Small Case Litigation Clinic:A Love Letter to My Clinic, 13
CLINICAL L. REV. 573 (2006). For a book-length exploration of two professors' thinking about their
clinical teaching, see PHILIP G. SCHRAG & MICHAEL MELTSNER, REFLECTIONS ON CLINICAL LEGAL
EDUCATION (1998). For a widely respected clinician's thesis on state-of-the-art design in clinical legal
education, see DAvID F. CHAVKIN, CLINICAL LEGAL EDUCATION: A TEXTBOOK FOR LAW SCHOOL
CLINICAL PROGRAMS (2002). There have been some explorations of the educative value of simulation
teaching. See, e.g., Paul S. Ferber, Adult Learning Theory and Simulations-DesigningSimulations to
Educate Lawyers, 9 CLINICAL L. REv. 417, 428-34 (2002), but fewer for supervised case-based
teaching.
More consequentially with respect to cognitive instruction, live-client clinics are often limited to
enrolling only third-year students by local practice order, whereas simulation courses can include
second-year law students. Indeed, they often seem especially aimed at second-year law students, so
rather than focusing intensively on one particular and usually narrow kind of practice experience, they
can have a broader, more survey-like purview. This makes them especially well suited to teaching basic
and advanced legal reasoning. Also, the design of simulation classes usually makes them better suited
for enrolling a larger number of students than live-client clinics, thus offering a wider pool of students
the benefit of this sort of training.
SIM CITY

introduction into the "real" professional education offered in live-client clinics

(although they certainly are both). Instead, we can conceive of simulation-based
courses serving both of these functions and as ideal sites for teaching students both
the most elemental as well as the most complex forms of legal thought. Together
with the introductions offered in beginning doctrinal courses and legal research and
writing courses, these sorts of classes can better prepare students to begin at a more
advanced conceptual level, and consequently engage in more rapid and more
sophisticated learning, both in subsequent live-client clinics and in actual practice
settings.

II. DEFINING THE SKILLS OF LEGAL THINKING

Of course, this raises a thorny question: exactly what are the basic skills of legal
thinking? To consider seriously whether any particular type of law teaching
emphasizes "thinking like a lawyer," we should have some agreed-upon set of criteria
for what that phrase signifies. Unfortunately, upon close examination, the meaning
of the phrase turns out to be surprisingly opaque. "Thinking like a lawyer" is a
phrase so routinely used and so often self-referential that its meaning is generally left
unexplained, or at least ill-articulated.2" Given the variability and subjectivity of
potential meanings of the phrase, our use of it skates uncomfortably close to
something that "we know when we see it."
It is perhaps not surprising then, although possibly embarrassing to legal
academia, that as recently as 2007, an article seeking solely to explore and define the
meaning of the phrase "thinking like a lawyer" was still a valuable scholarly
contribution. 21 Natt Gantt's investigation of the phrase seeks to review existing
theories about the constitutive skills required for legal reasoning and to break down
"thinking like a lawyer" into its cognitive components. 22 To summarize (and risk
oversimplifying) 23 his project, Gantt breaks down the aims of basic legal reasoning
into seven overarching processes or intellectual skills:
1. problem solving;
2. identifying legal issues;
3. logical reasoning;

20. As early as 1971, the Carrington Report on legal curriculum described the phrase as "so circular that it
is essentially meaningless." ASS'N or AM. LAW SCHS., TRAINING FOR THE PUBLIC PROFESSION OF LAW:
1971 (Paul Carrington ed., 1971), reprinted in HERBERT L. PACKER & THOMAS ERLICH, NEW
DIRECTIONS IN LEGAL EDUCATION 129 (1972).

21. See Larry 0. Natt Gantt, 1, DeconstructingThinking Like a Lawyer.-Analyzing the Cognitive Components
of the Analytical Mind, 29 CAMPBELL L. REV. 413 (2007).
22. See id. at 418,421-36.
23. Gantt's theories are far more sophisticated than this cursory summation allows. Moreover, he breaks
many of the larger tasks (as listed infra text accompanying note 24) into far more detailed components.
"Identifying legal issues," for example, is subdivided into: assessing relevance, dissecting thought, and
perceiving ambiguity. Id. at 445-57. Some components are further subdivided; for example, "assessing
relevance" is subdivided into determining relevance before rules are known and determining relevance
once rules are known. Id. at 445-53.
NEW YORK LAW SCHOOL LAW REVIEW VOLUME 531[2008/09

4. arguing from rules;

5. seeing all sides to a question;
6. attending to detail; 24
7. recognizing the "big" issues.
With the existing lack of consensus regarding what the hallmark thinking of lawyers
constitutes, it may be easy for any of those in the profession to quibble with Gantt's
list. Nonetheless, it provides as useful a summary as any of what we imagine to be
the basic skills of legal thinking.
But such a tolling of proficiencies in legal thought raises the question of how
beginning lawyers acquire and practice these reasoning skills. Paula Lustbader's
groundbreaking research on ways law students acquire mastery explicitly names a
"Learning Progression" that takes place over five levels, encompassing twelve distinct
stages.15 For Lustbader, each learning stage, or "construction site" (she uses building
metaphors throughout her article), is both additive and reflective. As students ascend
to the next stage they "revisit previous ones and refine the skills they developed in
the preceding stages. Each time they get a more complicated problem or begin
26
mastering a new doctrinal area, they may have to start the whole process over again."
Lustbader's work helps to describe ways that law students learn, to diagnose student
problems, and to explain how and why law students' thinking can become stuck, and
it prescribes stage-specific solutions for common problems that students encounter in
their development as legal thinkers.
The model of the Learning Progression presupposes that there is a discernable
hierarchy of beginning, intermediate, and more advanced means of legal reasoning-
that is, it assumes that there are absolute distinctions between simpler and more
complex forms of thought. 27 In this regard, Lustbader's theory echoes the more
general classification of orders of conceptual skills that general educational researchers
have been developing for more than half a century.
One influential general educational theorist, Benjamin Bloom, proposed more
than five decades ago in his seminal Taxonomy ofEducationalObjectives that cognitive
operations could be organized into six levels, moving from the simplest through

24. Id. at 436-78.

25. See Paula Lustbader, Construction Sites, Building Types, and Bridging Gaps: A Cognitive Theory of the
LearningProgressionof Law Students, 33 WILLAMETTE L. REv. 315 (1997).

26. Id. at 323 (citation omitted).

27. Consequently, the model presumes that there exists a general consensus of what each form of thought
consists of. In light of the multiplicity of meanings "thinking like a lawyer" might be given, this
presumption is certainly challengeable. Nonetheless, it is one I agree with. Legal professionals can
debate the details of what constitutes "smarter" or "more simplistic" thinking in law, but most would
agree that such distinctions do, in fact, exist. I imagine, too, that details of what a hierarchy of legal
reasoning skills should look like might warrant further theorizing. But like "thinking like a lawyer"
itself, the very notion of a progression or ranking of thinking processes in law is a profitable one to
consider even if we do not wholeheartedly ascribe to it or have not fully determined precisely what it
entails.
SIM CITY

28
increasingly complex operations to the highest orders of conceptual thinking.
Bloom's early work has been revised and re-examined over the years, but the essence
of his categorizations of thinking, commonly known as Bloom's Taxonomy, remains
well-respected and commonly used.
Contemporary education theorists, following Bloom's Taxonomy, have articulated
six distinct levels in the cognitive domain (the "Taxonomy"):
I. remembering;
II. understanding;
III. applying;
IV. analyzing;
V. evaluating;
29
VI. creating.
While more expansive and layered versions of the Taxonomy have sometimes been
represented as a wheel, the cognitive levels listed above are most often organized
30
within an upside-down pyramid or in other ways portrayed wholly hierarchically.
Thus, in concordance with Lustbader's theories, the Taxonomy presumes that there
exist both lower and higher forms of thinking.
This notion makes intuitive sense to anyone who has ever graded a set of law
school exams. Some modes of thinking about legal problems simply seem more
sophisticated, more advanced, just plain smarter than others. Legal educators wish
that we could somehow get all of our students to produce this higher-order analysis
of legal problems. This suggests, then, that one important objective of education,
perhaps the paramount one, is to move students along to the most advanced cognitive
modes.
Certainly both Lustbader and Bloom, and his followers, do not believe that
learning is only a progression from one stage/site/level of thinking to the next. Nor
do they suggest that all students begin or end at the same place. Nonetheless, their
schemata explicitly employ hierarchies from lower to higher modes of thought, from
the basic to the complex, and take for granted that students must pass sequentially
through each stage before moving onto the next.31 Indeed, legal education often
(perhaps even usually) does follow that trajectory. Many students, whatever their

28. See A COMM. OF COLL. & UNIV. EXAM'RS, TAXONOMY OF EDUCATIONAL OBJECTIVES: THE

CLASSIFICATION OF EDUCATIONAL GOALS, HANDBOOK I: THE COGNITIVE DOMAIN (Benjamin Bloom

ed., 1956) (introducing the Taxonomy and explaining its functions and uses).

29. See A TAXONOMY FOR LEARNING, TEACHING, AND ASSESSING: A REVISION OF BLOOM'S TAXONOMY OF
EDUCATIONAL OBJECTIVES 31 (Lorin W. Anderson et al. eds., abr. ed. 2001) [hereinafter REVISED
TAXONOMY] (summarizing a cumulative investigation of Bloom's Taxonomy and proposing a

contemporary consensus of its working parts).

30. Circular representations of the Taxonomy generally include all three of the educational objective
"domains" that Bloom identified-cognitive, affective, and psychomotor. Of these, Bloom's cognitive
domain usually garners the most attention and is the only one addressed in the common pyramidal
representation of Bloom's orders. See generally id. at 258-59.

31. Lustbader, supra note 25, at 354 ("[R]emember that most students must progress through this series in
sequence.").
NEW YORK LAW SCHOOL LAW REVIEW VOLUME 531I2008/09

prior academic achievements, enter law school with little to no real understanding of
what will be expected of them, and spend much of the first year reshaping their
intellectual landscape.
Yet learning is much messier, more recursive, more patchy than these models may
seem to admit. 32 Students often move through the experience of law school not fully
aware of what level they are on; occasionally they venture into new, more advanced
levels without having "graduated" from the previous stage; equally as frequently, they
dip back and forth between the basic and the complex. 33 It stands to reason, then,
that even if primary doctrinal teaching in the first year of law school does a good job
of inculcating legal reasoning skills (as the Carnegie Report posits they do),3 a the
task is hardly completed after one year of legal study. Not all students will have
mastered the nuances of interpreting law and applying rules to facts, but even those
who have successfully done so should further aspire to advance their thinking.
Consequently I have found Bloom's Taxonomy to be a useful tool in crystallizing
my own understanding of the different levels on which my students may be operating.
In fact, I have adopted a short summary of the Taxonomy in the form of a pamphlet-
sized "flip chart" as a helpful teaching tool in some courses. 35 The flip chart, while
not designed precisely to describe forms of legal reasoning, is easily adaptable to law.
It makes explicit the various levels of thinking that lawyers may employ, 36 providing
37
convenient examples of the forms of questions that each level of thinking addresses.

32. Moreover, Lustbader would likely agree with that assessment of law students' progress. Cf.id. at 323.

33. This perhaps argues for teaching law students to adopt the kinds of engaged self-awareness of progress
in learning advocated by Michael Hunter Schwartz. See generally MICHAEL HUNTER SCHWARTZ,
EXPERT LEARNING FOR LAW STUDENTS (2005). Schwartz urges law students to become "self-regulated
learners," moving repeatedly and seamlessly between planning, performing, and reflecting on their
learning. Id. at 3. Doing so, he suggests, has been shown to improve students' performance in a variety
of disciplines. See id. at 3-5. It stands to reason that if progression among levels of thinking is a
complicated process, teaching students to be attentive to their own learning might help them be more
attuned to their own cognitive processes.

34. CARNEGIE REPORT, supra note 1, at 51-54.

35. See generally EDUPRESS, QUICK FLIP QUESTIONS FOR THE REVISED BLOOM'S TAXONOMY (2001)
[hereinafter TAXONOMY FLIP-CHART]. This flip-chart, which promotes itself as "an indispensable tool
for . . . [t]eachers . . . [p]arents . . . [and] [s]tudents," has stacked tabs arranging the various levels
vertically. Id. The page for each level offers key words (generally verbs) that epitomize the work being
done on that level and shows examples of the kinds of questions an inquiry at the level might generate.
I have found this flip-chart to be a good resource because it is intuitively organized and inexpensive.
My thanks to Colleen Grady, who introduced me and many others to this chart during a 2007 conference
presentation.

36. Understanding the various levels of thinking is a worthwhile goal, at least according to those who
advocate the value of metacognition for adult learners. See Robin A. Boyle, Employing Active-Learning
Techniques and Metacognition in Law School: ShiftingEnergyfrom Professorto Student, 81 U. DET. MERCY
L. REV. 1 (2003); Michael Hunter Schwartz, Teaching Law Students to be Self-Regulated Learners, 2003
MICH. ST. DCL L. REV. 447. There has been discussion of teaching metacognitive strategies to law
students for at least two decades. See Paul T. Wangerin, LearningStrategiesforLaw Students, 52 ALB. L.
REV. 471, 478-79 (1988).

37. The chart helps students identify, understand, and assess the differences among intellectual tasks such
as summarizing the material they study (Level II-understanding); making inferences or categorizations
SIM CITY

The Taxonomy is a useful tool for identifying more basic and more advanced thinking
in law. It can show precisely what we expect law students to master early on in their
legal training: not simply remembering and understanding legal concepts, but also
applying them in order to analyze new scenarios. But as much as we want these mid-
level mental processes to become ever more intuitive, automatic, and expertly-executed,
we also want to speed law students toward the most sophisticated forms of thinking
in and about law.

III. SITUATION-BASED PROBLEM-SOLVING TEACHES AND DEVELOPS THESE

REASONING SKILLS
If we are willing to consider clinical teaching as training in legal thinking, it is
not hard to conclude that simulation-based courses fulfill (and advance) the role of
"cognitive apprenticeship" in complement to doctrinal teaching. After all,
it is not
inevitable or even guaranteed that students will pick up cognitive skills in doctrinal
classes, to the extent that there is nothing about learning contract law that necessarily
teaches students the habits of mind that define legal thinking. Rather, law school
faculty deliberately organize the experience of introductory doctrinal classes to make
that process an intrinsic part of the course, and stress legal analysis as one of the
major components of it. There is no essential reason that clinical courses cannot be
conceptualized the same way-as arenas that emphasize both content and a rigorous
training in process.
As an example, let's imagine a fairly typical scenario designed to teach client
counseling and negotiation. The student possesses some basic information about the
client's factual scenario 38 and must work with the client to prepare for upcoming
settlement talks. What kind of questions does the student need to ask, and how
would she answer them in order to help the client work through the problem
successfully?
Usually, the student's best strategy would be to think through the problem by
starting from the end point: that is, she would work in conjunction with the client to
define the ultimate goals for settlement.39 But to define realistic goals means that
the student must have an extremely nuanced understanding of the client's current
situation. To get there she has to have discovered as much as she could from the
client. Asking the client for information is not sufficient, however-for a lawyer
doing her job well, gathering information from the client is not simply a process of
serving as a waiting vessel for a client to fill with narrative.
Fact development is instead a dynamic, engaged kind of inquiry that includes
prodding the client to think through things differently and more specifically by

about it (Level IV-analyzing); or making informed judgments about it (Level V-evaluating). See
generally TAXONOMY FLIP-CHART, supra note 35.

38. Facts are gathered either from interviewing the client or through a given narrative summary of the
client's circumstances.
39. See DONALD G. GIFFORD, LEGAL NEGOTIATION: THEORY AND APPLICATIONS 3-6 (1989); G. NICHOLAS
HERMAN ET AL., LEGAL COUNSELING AND NEGOTIATING: A PRACTICAL APPROACH 67-89 (2001).
NEW YORK LAW SCHOOL LAW REVIEW VOLUME 531[2008/09

asking the kinds of questions that will actually reveal more about the strengths and
limitations of the client's position.4" Moreover, as clinical courses teach students,
and experienced practitioners know, fact development and goal setting are not static.
What one knows about a given area of law guides the kinds of questions one asks, as
well as the sorts of facts one develops. This, in turn, determines what parts of the
law one will research. Consequently, wherever the law is ambiguous, the developed
facts will shape the legal arguments the lawyers will make to best advantage their
clients (or at the very least, guide clients about what to expect if the case were not
settled but litigated or even dropped). The development of novel arguments or
interpretations of law may similarly prompt further factual investigation so that the
research cycle turns back on itself one or more times.
By engaging in these tasks the student is necessarily using all of the "thinking
like a lawyer" skills proffered by Gantt: in order to work with the client to solve the
problem, the student/lawyer has to identify legal issues, which requires logically applying
rules to facts within the scenario, from the perspective of both her client and all other
parties involved. To do this most effectively, she must both attend to the details of the
facts and the applicable law, while still seeing the big picture of her client's
41
ultimate
desiredoutcome, as well as the larger body of law this case brings to bear.
It cannot simply be the case that a typical second-year clinical law student is able
to do all of this expertly because she has already fully internalized these habits of
mind and is just plugging them into the situation at hand in order to practice advising
clients. If that were genuinely true, there would quite literally be no need for legal
education beyond the first year of introductory classes and the summary of advanced
doctrine offered by a few agreed-upon upper-level survey courses. The experience
new lawyers need in order to become experts in their fields could easily be gleaned in
42
subsequent on-the-job training.
I think, however, this is too limited an image of the typical law student's
intellectual work in such a task. Depending upon your point of view, this is either an
overly pessimistic perspective on the work the student-lawyer is engaged in while
counseling her client, or an overly-optimistic perception of what the typical law
student has fully mastered. I suspect, instead, that the process of thinking through

40. For a brief but insightful discussion of the "interaction effects" in lawyer/client fact-gathering, see
ANTHONY G. AMSTERDAM ET AL., LAWYERING BY THE BOOK 134-39 (N.Y.U. Lawyering Program

2008). For a far more extended disquisition on what clinical teachers have to say about how lawyers and
clients develop facts and set goals, see Alexander Scherr, Lawyers and Decisions:A Model of Practical
Judgment, 47 VILL. L. REV. 161 (2002).

41. See Gantt, supra note 21, at 437-78 (describing the cognitive components of "thinking like a lawyer").

42. Indeed, such a view might look favorably upon a dramatic reduction in the time and energy currently
devoted to law school education, and a return to the more apprentice-based model of previous centuries
for new-lawyer training. But this is hardly the reform advocated by the Carnegie Report, and even the
most pessimistic examinations into the future of legal educations do not suggest that this might be the
direction we are heading. See, e.g., Richard A. Matasar, The Rise and Fall ofAmerican Legal Education,
49 N.Y.L. SCH. L. REv. 465, 498-500, 504 (2005) (exploring problems and criticisms of the current
legal educational model, including arguments that it lasts too long, costs too much money, and teaches
too little that is of practical use in the profession).
SIM CITY

how best to solve the problems a client presents necessarily develops and expands the
cognitive landscape for almost any law student assigned that task. Each question she
asks forces the student to imagine where she might go next; each fact or law or client
response creates new opportunities to deepen and broaden her analysis. Resolving
the problem necessarily rehearses, and thus helps make automatic, the fundamental
processes (lowest and earliest levels) of legal thinking.43 Simultaneously, the act of
working through the exercise inevitably moves the student toward the more advanced
and conceptual forms of reasoning that lawyers use.
That is, it must be true that at least some of what the student was doing during
the simulation does function on the most simplistic levels of the Taxonomy. At the
very least, the competent student/lawyer must remember and understandthe client's
situation, the relevant area of law, and the client's goals. But to resolve the problem,
she must also engage in the mid-level processes that we most commonly conceive of
as "thinking like a lawyer": applying the law to the client's situation and analyzing
facts and law in order to best advise the client about possible outcomes. Working
through a simulated counseling session with a client can thus provide profoundly
useful practice and reinforcement of those mental processes.
Yet, in order to construct a fully realized set of suggestions and possible solutions
for her client, the student must also engage in the highest levels of cognition: those
processes that the Taxonomy identifies as "evaluating" and "creating." Where
analyzing a situation consists of determining its major issues and themes, classifying
and categorizing it, distinguishing between its constitutive parts, working out causes
and effects, identifying relevant evidence for the client's position, drawing inferences
from the law, and drawing conclusions from all of these processes, 4 4 evaluating a
situation asks a very different set of questions. Rather than just probing the material
of the case (whether the client's story, the law, or the connections between them),
evaluation requires the student to make substantive judgments about the material she
is considering, and about how to approach the client's preferred outcome. The
student is not only classifying and categorizing, but also judging and prioritizing.
Having considered all sides of the legal problem and visualized the big picture, she
can now compare the validity of the arguments that might be propounded, and
support her client's case by both the facts and her own judgments.
Alongside evaluation, moreover, the student may find opportunities to create.
Having judged the situation, she must predict the various outcomes of the factual
and legal arguments she and the other parties might make. And having prioritized
her points, she also has to be able to adapt, adjust, and modify them in response to

43. Automating the fundamental processes is valuable; evidence suggests that one hallmark difference
between the cognitive strategies of novices and experts is the speed in narrowing focus that comes with
practice. See Stephen Ellmann, Fast Talking (New York Law Sch. Clinical Research Inst. Paper No.
05/06-10, 2005), available at http://ssrn.com/abstract=871747.
44. Some of the questions the Taxonomy suggests in order to achieve these processes are: What are the
parts or features of... ? How is ... related to ... ? Why do you think.. . ? What is the theme of... ?
What inference can you make about... ? How would you classify... ? What conclusions can you draw
from... ? See generally REVISED TAXONOMY, supra note 29.
NEW YORK LAW SCHOOL LAW REVIEW VOLUME 531[2008/09

input from the other parties or (if it comes to that) the judge, so that in taking all of
these factors into consideration she can best act to maximize her client's position or
options. While analysis and evaluation are, to varying degrees, reactive, the realm of
creation is generative and imaginative, interweaving possibility with probability and
pragmatism.
When the required intellectual tasks are broken down in this manner, we can see
the similarities between the cognitive work required in simulation courses and
doctrinal classes. Both require students to internalize the basic processes of
remembering and understanding, while they also demand more sophisticated
thinking in applying and analyzing what they have learned. At their best, both push
students further along the spectrum toward the most demanding kind of intellectual
work: making judgments, offering opinions, and creating new ways of looking at the
problem at hand.
Moreover, because we know that students learn material best when it is presented
in context, 45 the holistic experience of simulations along with the exigencies of having
to solve a particular problem for a particular client combine to construct an ideal
environment for students to learn both the nuts and bolts and the finer points of
legal analysis. Extended simulations, then, at the very least add practice-skills
education to students' previously-honed reasoning skills; at their best, they cultivate,
nurture, and encourage increasingly sophisticated and complex forms of "thinking
like a lawyer."

IV. IMPLICATIONS FOR LEGAL PEDAGOGY

If we integrate these insights about teaching simulations into our concept of legal
pedagogy, where might we end up? Perhaps, exactly where we are now. There may
be no need to change anything in most law schools' current educational model.
Noting that there is some overlap in the educational objectives of different law school
classes may give us room to acknowledge some valuable repetition in the usual
sequence of legal education, but this hardly requires a revision. But a move toward
seeing simulations as an essential part of students' training in legal cognition might
press us toward refocusing (or at least refining) some of their operation, and might
call for a larger re-imagination of their role in the education of new lawyers.
It is axiomatic that most educators are likely to be most successful in teaching
what we deliberately set out to cover, and what we lavish the most attention upon. If
we imagine simulation courses solely as introducing some of the interpersonal skills
that lawyers may need, we will accordingly construct simulations devoted primarily
to teaching and honing those particular skills. For example, with the goal of practical
rehearsal in mind, a clinical professor might reasonably decide that the more
opportunities a student has to practice a particular task such as counseling a client

45. See Gerald F. Hess, Listening to Our Students: Obstructing and EnhancingLearning in Law School, 31
U.S.F. L. REv. 941, 943 (1997) (citing Stephen D. Brookfield, Adult Learners:Motives for Learning and
Implicationsfor Practice, in TEACHING AND LEARNING IN THE COLLEGE CLASSROOM 137, 144 (Kenneth
A. Feldman & Michael B. Paulsen eds., 1994)).
SIM CITY

and to get feedback on her performance, the better.4 6 In light of the resource
limitations faced by any class seeking to offer experiential learning and individualized
critique, the faculty member might well decide that students would best benefit from
repeated opportunities to engage in relatively short and straightforward exercises,
each designed to introduce or rehearse specific techniques.
But a simulation intended explicitly to help students deepen their intellectual
grasp of legal concepts and achieve higher orders of reasoning might engender a very
different set of design considerations. The problems would likely be more complex.
Problems demanding higher orders of thinking require students to puzzle through
overlapping facts, and to make nuanced choices about how to interpret and frame
arguably-applicable legal doctrine. Thus they are not likely to be scenarios that can
be conveyed in a few short summary memos or a collection of canned cases. Rather,
the facts are more likely to unfold through a series of live or transcribed interviews,
depositions, and other (simulated) artifacts of legal or factual research. Understanding
legal doctrine is more likely developed through individual student/lawyer's own
definition of the legal question and subsequent topical research, and so on.
In addition to project design, a shift or expansion of the educational objective
might have ramifications for the evaluation of student work. Since it takes time to
articulate the sorts of reasoning steps that expert thinkers might take in order to
work through these more multilayered problems, instructors would necessarily need
more time to give different types of critical feedback to their students. Their feedback
would necessarily have to include suggestions to improve students' practical
performance, but should also try making visible to students the many layers of
cognitive work that they may have been using implicitly, as well as providing students
with assistance in moving toward higher orders of legal thought.47 It is already true
that much of the work of teaching simulations involves modeling analytical,
evaluative, and creative ways of dealing with clients and the law. But an explicit
legal reasoning-oriented clinical program might add to that by focusing more, or at
least differently, on ways to guide students towards those more sophisticated ways of
thinking about legal problem-solving.
46. Support for that approach can be found in the notion that genuine expertise is usually achieved only
after an unusually large amount of time devoted to practice. Researchers have formulated a magical
number of 10,000 hours rehearsal time as foundational for success in almost any field. For a discussion
and summary of the 10,000-hour rule, see generally MALCOLM GLADWELL, OUTLIERS: THE STORY OF
SuccEss 35-68 (2008). For more academic exploration of the 10,000-hour rule, see K. Anders Ericsson
et al., The Role of DeliberatePractice in the Acquisition of Expert Performance, 100 PSYCHOL. REV. 363
(1993) (arguing that expert performers develop their characteristics through a life-long period of
deliberate effort, as opposed to being born with innate talent).
47. Obviously, trading off these varying goals, or better yet seeking to find ways to combine them such that
they do not have to become zero-sum exchanges, may be the best choice of all. I mean in no way to
suggest that clinicians replace one narrow set of objectives with another.
I should add, too, that I do not mean here to diminish the fact that this sort of intensive skills/theory
teaching is what many teachers of simulations, both in clinical and doctrinal courses, already do. But I
do mean to suggest that we can be clearer about the multiple objectives of such simulation teaching. If
cognitive training is defined as at least one of several important goals in that pedagogy, we might make
some different choices in exercise design.
NEW YORK LAW SCHOOL LAW REVIEW VOLUME 531]2008/09

More broadly stated, however they are designed, simulation-based courses

imagined as part of law students' cognitive apprenticeship, in addition to the central
locus of practical training, would have a very different role to play in our collective
understanding of current practices in legal education. Perhaps without saying so, we
are already exceeding the Carnegie Report's expectations of clinical pedagogy as
providing practical training and preparation for the profession. Where the Carnegie
Report sees practical training as "additive" to the central mission of law schools,
re-framed basic clinical courses might be seen as a central locus for the "integrative"
48
teaching that the Carnegie Report authors so fervently desire.
There are multiple directions such an insight could lead us toward. Whether this
stance argues for moving more of these kinds of courses into the first year, or
expanding the offerings and requirements for simulation-based courses in the second
and third years; whether it means rethinking who teaches these courses 49 and how
they are integrated with other parts of the curriculum: these questions are beyond
the scope of this brief essay. However, I would encourage us to embrace this
opportunity to challenge our students and ourselves, and to take advantage of what
is currently an underused, and under-theorized, resource.
Thus, I do not mean simply to suggest that all law schools ought to expand
clinical offerings or that all students ought to take simulation clinics (although
perhaps this would be a good idea). Instead I want the body of legal educators, both
clinical and non-clinical, to remember that these classes serve not only to teach
"practical skills," but serve also the crucial educational function of inculcating in
students fundamentally legal ways of thinking. In fact, for anyone used to thinking
of doctrinal course work as serving this function, it ought to seem unsurprising that
simulations will do so as well-perhaps more thoroughly, with greater depth, and
greater "sticking power." After all, what is the kind of hypothetical, fact-pattern-
based essay examination typically given in such courses but a cursory (and somewhat
uni-dimensional) simulation?

V. CONCLUSION
Simulation courses are not just staging grounds for the "real" work of actual legal
practice; they are a space in which legal theorizing is strengthened and deepened. If
we frame simulation-based clinical teaching as part of an integrated web of legal
education that can encourage and generate sophisticated understandings of lawyering
work, we can use much of what most law schools are already doing to imagine a
richer, more layered, more successful law school curriculum. One in which the
Carnegie Report's authors could surely take pride.

48. See CARNEGIE REPORT, supra note 1, at 191-92.

49. Which may, or may not, also include reconsidering status distinctions among different legal subjects or
different law teachers. The Carnegie Report itself expresses concern over the devaluing of clinical
subjects or faculty. See id. at 88, 91-94.
*3-NMI