Well, it seems like we don't teach logic any longer. In a loose sense the student answer was tautological. Apparently, logic does not come naturally to the human mind and requires effort to learn. To the extent law is analytical in a logical way (which is often but not always) logical thinking is a precursor to understanding it. The logic course I took in philosophy as an undergraduate was immensely valuable in taking apart legal hypotheticals. 

Clear writing is a lost art, too, and the two are not unrelated.

Curmudgeonly yours,

Ginny



Virginia G. Maurer, M.A., J.D.
Professor of Business Law and Legal Studies
Director, Poe Center for Business Ethics
Darden Restaurants Professor of Diversity Management
Warrington College of Business
352 256 0295 (cell)
352 376 2867 (home)


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From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] on behalf of Daniel Warner [[log in to unmask]]
Sent: Friday, May 24, 2013 6:15 PM
To: [log in to unmask]
Subject: Interesting unintended experiment with my Commercial  Transactions students

Hi Colleagues,

Well, okay, somewhat interesting.  If you have a minute.

For my class here (contracts, sales, bailments, secured transactions, bankruptcy) I usually give the students eight quizzes--one every week of class, except the first week and the last week (we're on the quarter system).  The deal is, they have 25-30 minutes only, in-class, to write not more than one side of one sheet of paper (name on back only), without notes.  I read them, mark them up copiously, and return each quiz to the student.  The lowest score on any one quiz gets tossed.  So I've been doing this for 30 years.

The students generally do okay: there are some very good papers (about 4-5), some not good (about 4), some in the middle (about 20).

Three weeks ago I had to miss a scheduled class (the first time I've ever missed a scheduled class in 36 years of teaching).  In order to make up the two hours of class lost from that, I gave the students--now for three weeks--the same quiz as they would usually get, except I told them they could take it home and use any resource they wanted to answer it (only: "do your own paper; this isn't a team effort").  It was due 10:00 am the next day in my mailbox.

There is no significant difference.  When they had as much time as they wanted, using any resource they wanted, they did no better than when they were confined to 30 minutes in-class, no notes.

Now I'm thinking I can see more clearly that the problem they have (and again, there are some good papers) is not that they don't know the relevant CRL (controlling rule of law).  They mostly do, even though they often express it as fact rather than law.  No, the problem is they don't recognize the significance of the facts.  They don't "get" the legal issue that arises from the fact situation.

Okay, example.  We discussed bailments; as relevant here two CRLs: (1) a bailment requires that the bailor (owner) deliver the goods to the bailee (e.g., warehouser), and the bailee must intend to possess the goods.  And (2) the bailor has a duty to warn the bailee (e.g., warehouser) of dangers associated with the bailed goods.  (You may recall the Fels-Naptha case: Fels-Naptha shipped pallets of soap without informing carrier of the soaps' potentially explosive vapor build-up; soap exploded in enclosed cargo area; had carrier known, soap would have been in ventilated area.  Fels-Naptha was liable).  Here's the quiz fact situation: Plaintiff delivered her car to repair shop without informing the employees that in the trunk of her car there was a classic 1962 Underwood typewriter.  When she picked up the car, the typewriter was gone.  Who bears the loss?

A lot of students said Plaintiff bears the loss (correct answer), but gave as the reason that "it is the duty of the bailor to warn of dangers associated with the bailed goods."  No, the reason Plaintiff is liable is because there never was any bailment of the typewriter (see 228 SE2d 156), so no duty devolved on the bailee at all.  So I asked them, What's dangerous about the typewriter?  And they responded, more or less, with this: The danger is that if Plaintiff doesn't tell the shop guys about the typewriter in the trunk they're going to get blamed if it disappears--they're going to be considered legally responsible for its loss.

Now remember, for this quiz the students had all the time they wanted, and any resource they wanted to use.  For years I've fretted that I am squelching some entirely capable students by giving the class only 30 minutes to take the quiz.  But this "experiment" suggests to me that's not the problem.  The problem is--it seems to me--the students don't "get" the facts, so they apply the wrong CRL.

I thought this is kind of interesting.  Do any of you have any thoughts on this?

Have a great long weekend!

Dan


Prof. Daniel M. Warner
Dept. of Accounting (Business Legal Studies)
MS 9071, Parks Hall 401
Western Washington University
516 High St.
Bellingham, WA 98225
360 650-3390
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