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The Adversarial Paradigm
Creating Paths to Alternatives

jeanne.
California State University, Dominguez Hills
Latest update: September 7, 2000

Moot Court: Collaborative Thinking on Your Feet

Jeanne Curran, Susan Takata, and Patricia Acone.
American Political Science Association Meetings
August 31, 2000
Copyright: Jeanne Curran, Susan R. Takata, and Patricia Acone
August 2000. "Fair Use" encouraged.
  1. Project Ask: The Start of It All
  2. The Moot Court we are describing represents a fourteen-year locally funded program that permitted us to investigate the most appropriate pieces of undergraduate liberal arts education in the law that we could manage for our students. It all started with Project Ask, a local department of sociology project Jeanne started while in law school at UCLA, to better prepare those of our students who were entering law schools in droves.

    Project Ask invited students to tell us what they thought they needed and were not getting enough of, so that we could manage to fund programs that would fill in gaps that they perceived. One of the gaps they mentioned was the ability to argue effectively on their feet. Some of them had seen a law school moot court exhibition and decided that they should have such a program. Jeanne, confident that no one would agree, since after all, one needed a healthy amount of law to research a moot court problem, helped the students write their project proposal, and then paled when three attorneys insisted the project should be funded and undertaken. Jeanne funded it, not quite sure what an undergraduate moot court was and what it was to do precisely.

    The students asked for Stanley Mosk, of the California State Supreme Court to preside. So Jeanne said "sure." Why not? No State Supreme Court Justice was going to come to a little state college for an "undergraduate" moot court. Wrong. Justice Mosk just asked, "When do you want me?" as Jeanneís knees quietly (she hoped) began to shake. Not only did Justice Mosk come. He came many times, and he leant his name to the Competition.

  3. Phi Alpha Delta Legal Fraternity
  4. Jeanne was a member of Phi Alpha Delta Legal Fraternity at UCLAW. They announced the opening of undergraduate chapters, and Jeanne promptly volunteered to have one at CSUDH. Project Ask sponsored their installation dinner at the Hilton Hotel, and a law focus at CSUDH was launched. Our chapter of Phi Alpha Delta sponsored the moot court program throughout its growth at Dominguez.

  5. Adaptation to Undergraduate Needs
  6. Since the studentsí primary goal had been to gain practice in oral skills, that seemed a reasonable limitation to Jeanne. She invited her friends from UCLAW, who had been on the Moot Court Board, to join her in training, and she wrote the case. One of the problems in moot court is the difficulty of finding cases with balanced issues. Because Jeanne wanted to emphasize skillsí practice, not legal expertise, she focused on oral argument, and provided the students with the research and a sample brief.

    This was based on learning theory, which emphasizes that recognition of concepts precedes recall, analysis and synthesis. (Bloom and Krathwohl, Affective and Cognitive Domains of Learning.) From the beginning the entire program was negotiated with students, funded by the Associated Students, Inc. through Instructionally Related Activities, and was informed by learning strategies and evaluation of the effectiveness of the procedures tested.

    A formal evaluation was conducted three years into the program with Executive Director Hans Mauksch of the American Sociological Association and with Justice Mosk in San Francisco. At that time we agreed on some basic principles: that our focus on oral argument in which all students were provided access to the same basic legal materials met our needs to focus on critical oral reasoning, and that the recognition of good and valid legal argument seemed in our program to precede the actual ability to engage in such argument.

    In other words, we discovered, when the director was hospitalized during training rounds, that the students carried on quite capably, and complained that one of the attorneys they were training with was incompetent. The director, amazed, agreed, but wondered how they knew? Considerable analysis led us to the conclusion that they were accurately responding to reasonable indicators of overgeneralization and non-responsiveness. At that point we acknowledged that the program served as effectively as general undergraduate education for all students, as it did for special skills for those who sought careers in law. Appropriately, we sought to expand its outreach.

  7. Adapting a Community-Based Collaborative Program to an Adversarial Educational System
  8. Although we did not at the time have Gordon Fellmanís paradigm of adversarialism and mutuality to frame our theoretical position, this was precisely the concern we were trying to meet. It mattered more to our students generally that they acquire a comfort with the legal system for the needs they would face in local government and budget decisions, than to outshine one another at legal gymnastics. We began to try to eliminate the sense of competition, as we found it intimidating, alienating, and depressing, for the ones not chosen for the final rounds suffered detriments in self-esteem.

    We took a variety of approaches to this. And it took a long time to solve the problem. First we tried encouraging team effort. That actually did work for so long as the school supported us through the campus TV studio. The students cheered for each other as they appeared on TV, and the excitement when they or the judges scored a point led to pandemonium in the engineering studio. We were pleased with this sense of team, but lost a great deal when the school began to operate on budget principles which forced each department to be self-supporting, and we could no longer afford the studio staff.

    We believe that that technique promises a lot, and should be re-incorporated by any school that can fund it.

    We also worked with the TV studio for many years, including acquiring grants for updated equipment for them, to present our final exhibition rounds in the school auditorium. Although no one Jeanne knew in law school would ever have done moot court, especially not with Justices Stanley Mosk, Norman Epstein, and Bernard Jefferson in a packed auditorium, our students didnít know that. They competed avidly for the right to argue in the final four, and that permitted us to fill the auditorium with the local community, making the legal event not only exciting, but "of the community," as well as for the community. The auditorium held over 400, and was packed for the annual performance.

    Without the money to pay for TV equipment we were forced last year to forego the auditorium performance, and are now in the process of trying to raise enough funds to re-instate it this year.

    Within the last three years, we made stronger moves toward collaborative and team work in conjunction with our forced move out of the auditorium. We were by then working with two high schools, teaching local high school students the same oral skills, and inviting them to come to the final exhibition rounds, which we held in one of our local conference rooms, graciously provided by Dr. Margaret Blue, of the Undergraduate Advisement Center. We thought the young people would be thrilled to meet our judges and watch the process. They were not. They were absolutely indignant that we had not scheduled time for them to argue before the judges themselves, and they said so.

    It became clear at that point that adversarialism was inadequate as an approach to the liberal arts legal skills and insights we had been trying to work with. Our students and community were demanding sharing and mutual efforts. Exclusion wasnít acceptable. We had already seen some evidence of this in the communityís enthusiastic response to Professor Derrick Bell. When Dr. Bell joined our judicial panel he turned out a packed auditorium we couldnít clear till after ten in the evening. Now we are finding that more voices were being raised, wanting both to learn and to be exposed to the legal system that increasingly impacts our lives.

  9. Shared Discourse Instead of Performance
  10. Finally in Spring 2000 we took a deep breath and let go. We held our Moot Court Final Exhibition Rounds at the Western Social Science Meetings in San Diego. We scheduled several sessions. We shared the Moot Court Class with one of our studentsí favorite attorneys, Anthony Filer, and Juvenile Justice and Women and the Law. And instead of following our traditional moot court brief, we trained for argument in much the same way, but left the students to argue cutting edge issues with criminal justice professionals. One of the Moot Court Students came from Wisconsin, Parkside. The Criminal Justice Professionals and all the other students came from CSUDH and UWP Criminal Justice classes.

  11. Ramifications for Liberal Arts Legal Education
  12. Students returned to their local campuses to hold Town Hall Forums in the last week of classes. Successfully! At least on our campuses Adversarialism and Mutuality have found a comfortable mixed existence. And we set about to write up this analysis for the APSA Conference.

    It didnít work that way. The harder we try to finish the paper, the more that happened. We found that students were actively writing for the Web Site, that we had non-structurally violent, non-adversarial ways to comfortably measure for us and for them their learning, and that we were beginning to receive requests from afar to share in these positive developments.

    By late June we were working with other Professors in other locales, and adapting our site accordingly. By late July, we were adapting our Spring 2001 Moot Court Final Exhibition to have Derrick Bell back, and to fill the auditorium again, but comfortably within the new format for scholarly discourse on leading edge issues that concern us all.

    And soon we will be meeting with our graduate students in a special workshop for writing up our final report on how it is possible to grow a cooperative liberal arts program from a competitive, professionally-oriented law school program. And our assessment is that now they are ready to write.