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Report No. 184

Chapter IX

Examination System, Problem Method and Training Centres for Law Teachers

9.1 We shall now refer briefly to the examination systems. The Ahmadi Committee Report, 1994, has referred to this aspect and considered it as something quite important to improve the quality of the students who may ultimately come to the Bar.

9.2 There has been a belief for several years in the past that if one takes up the study of law, one need not attend classes regularly and that if one reads some small books published by some publishers who have an eye only on profit making.- one can easily pass the law examination. Such easy methods have remained very attractive and continue to stay even today for students who just want a bare pass. There are some students who have never read the text of a bare Act, much less any leading commentary. They only depend on some of these small books containing a few theoretical questions which the students think are sufficient.

When they go to the Bar, they for the first time open the books containing the Acts or the commentaries and are unable to cope up with the problem of the litigant and the needs of the profession. Of course, what we have said does not apply to the more serious students who have been regular and who are interested deeply in the subjects and in making a mark in the profession but such students are today a small percentage. Nor are we referring here to the students from the new law Universities or to some colleges which are still rated as the best.

9.3 Whatever be the percentage of students who adopt short cuts to pass the law examination, there is, in the view of the Commission, great need to revamp the examination system with the dual object of eliminating malpractices like copying (which do take place in some centres) and the perennial problem of absenteeism in law schools. Mere bookish knowledge must give way to practical aspects of law. This has to start in the college itself.

9.4 The Lecture method and Case method: Methods of teaching have been changing from time to time. The time old method of lectures was supplemented by the 'case method' introduced by Prof. Langdell in Harvard in 1911 and these have been supplemented by the 'problem method'later. Problem method:

9.5 The 'problem method' of teaching is today considered more important than the other two methods.

9.6 The problem method was introduced by Prof. Jerome Frank in his article "Why not a Clinical Lawyer School' 81. U. Pa L. Rev. 907 (1933) which he expanded in his thesis in "Both Ends Against the Middle' (1951) 1.0 U. Pa L. Rev. 20, where he grumbled that Legal education should not remain 'hypnotized by Langdell's ghost'. He also said that the law curriculum should include 'social sciences and humanities'. Law is linked with economics, politics, cultural anthropology, and ethical ideals.

Humanities must also be added to social sciences. 'Students', Prof. Frank said must be exposed to "the great literary artists" whose "poetic insights concern the particular, the unique" and these goals too will have to be accomplished in the legal clinic.

9.7 Mr. Stephen Nathanson in his 'Developing Legal Problem Solving Skills' (1994) Vol. 44 Journal of Legal Education (p. 215) says that teachers should synthesize "general problem-solving skills and contextspecific knowledge".

9.8 In 1979, Russel Stewart, in Australia, said that teaching legal problem-solving skills should be the primary goal of professional legal education. In 1984, in America, Anthony G. Amsterdam predicted that by the 21st century, legal education would have shifted its focus from case reading, doctrinal analysis and legal reasoning to a broader spectrum of practical skills, including problem solving skills. In 1991, in England, a research study by Kim Economides and Jeff Small listed the main tasks and skills and stated that professional legal training should address problemsolving figures prominently among them. In 1992, the American Bar Association's Mac Crate Report identified problem-solving as the most fundamental of all legal skills.

9.9 A curriculum design has to be made, theory and practice must be put together, a problem-data bank must be generated and circulated to all law schools.

9.10 Prof. Myron Moskovitz of the Golden Gate University has extensively dealt with the 'problem method' in his article "Beyond the Case Method: It's Time to Teach with Problems" [See (1992) Vol. 42 Journal of Legal Education, p. 241).

9.11 The American Association of Law Schools (AALS) in their 1942 Report stated as follows:

"The merit of the problem method is that it more effectively forces the law student to reflect on the application of pertinent materials to new situations and accustoms him to thinking of case and statute law as something to be used, rather than as something to be assimilated for its own sake."

A later AALS Report lists five virtues of the problem method: (1) it approximates the lawyer's approach to the law, (2) it affords training in planning and advising, (3) it broadens the range of matters open to the students consideration, (4) it increases the effectiveness of instruction where case-law is inadequate (primarily where legislation is involved), and (5) it provides the stimulus to student interest. Prof. Myron Moskovitz in the above article (at Page 249) has referred to a large volume a literature on 'problem method'.

The author refers to a problem in criminal law where the Miranda Rule is involved and to the string of four cases of the US Supreme Court, each of the rulings referring to minor variations in the law on the subject of Miranda warnings students must learn these aspects. He says (at p. 258) that ultimately the 'problem method swallows up the case 94 method'. The author also disagrees with the view that the problem method is suitable only for small classes of students. The author also refers to the manner in which 'problems have to be set'. He then says (p. 267) "we now have books that contain problems" and there are several types of problem books. Reference is made to five types of such books.

9.12 Prof. Borch refers to what a medical professor said, that there is "widespread conservatism" among academics to innovation in teaching. Teachers must also be trained in the matter of problem-solving. Professional academics and the 'Adjunct teachers' can deal with this part of the curriculum effectively.

There is a vast literature on the subject of 'problem methods'.



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