Bridge Over the River Qua: Using Simulations to Span the Divide Between Prelaw and Political Science Students

ABSTRACT

Undergraduate public law courses often attract students with competing expectations. Some students enroll in these courses to prepare for law school, while others enroll in the courses to gain a broader understanding of courts in the American system of government. These differing student constituencies can create a dilemma for instructors. A course designed to cater to students with a general interest in the judiciary may not afford prelaw students with an appreciation for the demands of the legal profession. Conversely, a course narrowly tailored toward prelaw students risks alienating the majority of students for whom this class may be their only look at the judiciary. As a means to promote pedagogical balance and to appeal to varied student constituencies, we profile five public law simulations in this article that engage students in active learning and promote a greater understanding of law and courts.

KEYWORDS:

• Simulations
• public law
• constitutional law
• prelaw
• judiciary

Notes on Contributors

Matthew Woessner (PhD, Ohio State, 2001) is an Associate Professor of political science and public policy at Pennsylvania State University in Harrisburg. His research focuses primarily on higher education, examining the effects of politics in the classroom, sources of professorial-administrative conflict, and the probable impact of faculty electoral procedures on traditions of shared governance. Woessner is the coauthor (with April Kelly-Woessner, and the late Stanley Rothman) of The Still Divided Academy: How Competing Visions of Power, Politics, and Diversity Complicate the Mission of Higher Education. Beginning in the spring of 2016, he served as the Chair of the Penn State University Faculty Senate.

Kathleen H. Winters (PhD, Ohio State, 2011) is an Assistant Professor of political science at the University of St. Thomas in St. Paul, Minnesota. Her research focuses on Supreme Court decision making, with a particular emphasis on examining choices at the individual-justice level.

Kyle C. Kopko (PhD, Ohio State, 2010) is Assistant Dean for Academic Achievement and Engagement and Associate Professor of political science at Elizabethtown College in Elizabethtown, Pennsylvania. His research focuses on judicial politics, presidential elections, and religion and politics. Kopko is coauthor (with Christopher Devine) of The VP Advantage: How Running Mates Influence Home State Voting in Presidential Elections. Beginning in the summer of 2016, he served as President of the Northeast Association of Pre-Law Advisors.

Notes

This is based upon observations made by Kopko, Devine, and Baum (2015) at the Annual Meeting of the Midwest Association of Pre-Law Advisors. This variation in instruction mirrors the scholarly approaches to understanding judicial behavior. At one end of a continuum, legal considerations are the dominant explanation for judicial behavior (e.g., Gillman 2001), whereas the other extreme emphasizes extralegal factors such as attitudes, rational choice considerations, and psychological biases (see Segal and Spaeth 2002; Epstein and Knight 1998; and Baum 2006, respectively).

In preparation for the assignment, the instructor must adequately explain the concept of “precedent” and its importance in legal decision making.

Sometimes to add a dramatic flair to the discussions, explain that their client was just convicted of first-degree murder. The red apple represents the facts of the case. The assigned “unfavorable precedent” would lead to the judge upholding the jury’s death penalty sentence while the “favorable precedent” would incline the judge to overturn the jury’s death penalty sentence in favor of life in prison.

In large classes, this could be done through participation with the entire class, rather than in small groups.

Since this exercise is designed to be completed near the beginning of a semester, instructors can easily save time by using case facts from cases that they will actually cover as part of the remainder of the course. There is no reason that the cases must be fabricated.

Instructors can encourage students to view actual Supreme Court law clerk certiorari memos and use them as a guide when engaging in this exercise. See, for example, Wallander and Benesh (2014) regarding memos from Justice Harry Blackmun’s papers.

These learning outcomes could also be achieved through an in-class Supreme Court simulation, where students assume the roles of justices and attorneys in a real or hypothetical dispute. Fliter (2009) provides an excellent overview of Supreme Court simulations and potential resources for students and instructors. Such a simulation could also be crafted in a manner that appeals to both pre-law students and those who do not intend to enter law school. A third conceptualization of this simulation is to use a hypothetical case as the basis for a written assignment, where students are tasked with writing the majority opinion to decide the case. If added difficulty is desired, as part of that same written assignment, students could be required to also write either a dissenting opinion to their majority opinion or an opinion by the Supreme Court that overturns their lower court decision.

Employing random case briefs for the purpose of generating class discussion and/or ensuring student familiarity with the assigned readings does not fit the traditional definition of a simulation. Usually, simulation require students to assume the role of a legal or political actor. In this example, however, the instructor structures class discussion in a way that simulates the law-school classroom in a manner appropriate for undergraduates. Given that this pedagogical approach seeks to approximate an external setting (i.e., law school), we believe it is worth including among our discussion of student-centric simulations.