Without Precedent: Legal Analysis in the Age of Non-Judicial Dispute Resolution

For more than a century, the American system of legal education has predominantly emphasized the role of cases and judgemade law, but with the understanding that the craft of the lawmaking judge is constrained by the doctrine of stare decisis. This case-oriented approach to teaching law extends to statutes: students learn of the role of courts in interpreting and explaining statutes, making judicial construction of statutes part-and-parcel of statutory law. Thus, pervading the formative first year of law school is the assumption that the role of lawyers is principally to analyze what courts have done in the past in order to predict what stare decisis-constrained courts will likely do in the future. Even outside of pure common law, statutory interpretation is principally a judicial function.

This article describes the extent to which these assumptions are incorrect and suggests steps that we in law teaching should take to adapt our classroom approach accordingly.