The law student who doesn’t understand what’s supposed to happen in this process will probably treat it like another example of “education” that’s taken place over the prior 16 years. Go to class, professor tells you what’s what, take notes, take exam, get drunk (although hopefully this last step applied only to the prior five or six years), rinse, repeat. This is not, however, what happens in law school. The above scenario of our perfect Professor X and perfect Student Y only works if Student Y has read the material and is prepared for the discussion. If the student doesn’t know the rule (just one rule!), then how on Earth can there be a discussion about how a change in facts will change the legal analysis? Okay, you say. Perhaps the student is the foil (which is true), and the law professor will apply the rule! Would that that would happen. Your law professor will not say, “Okay, Student Y, you’ve given us the facts. The rule is that this does not equal ‘constructive eviction,’ for the following seven reasons….” See what happens? There’s no learning here either, as the professor is just spoon-feeding you, and you won’t learn how to change the analysis on your own. This is the essence of thinking like a lawyer, and yes, this is important.

So professors are right in their basic assumption, but dead wrong in how they approach the classroom solution. This has gotten much, much worse because students are less and less tied to the Old World assumptions that they need to suffer through, well, insufferable lectures. It’s also much easier to tune out; all one need do is tune in to any of a dozen devices or zillion apps.

That’s a fundamental problem with the law school classroom. Here’s how it ties in with outlining:

The solution, in large measure, is that students must learn the law on their own, before class even starts. You read that right. You must learn the law, on your own, before class! Now, before you toss this book away in derision and think us mad for even putting this to paper (or ebook), the solution is simpler than students make it.

We wrote that most students must relearn the material on their own, just before exams. This is true, in the sense that this is what happens, but it’s absolutely false, in the sense that if this does happen, the student has already failed. It is far, far too late to master the material in time for the exam—which tests “thinking like a lawyer”—if the student is only coming to grips with basic concepts at the very end of the course. The meat of learning the law is, as law professors think they’re teaching, wrestling with how a change in facts changes the legal analysis. Change a fact, and the lawyer must know the rules—i.e., the law—to know how the fact would change the outcome. This is “thinking like a lawyer.” In order to be able to do this, one must understand what those rules are in the first place. Not just “know” them, but know them. Otherwise, how can you know how the legal analysis will change if you change a fact? If one fact presents a possible defense, would it not be necessary to know the main rule and the defense (i.e., an exception to that rule)? So, while professors are droning on, terrifying each student in turn, most students have no idea that they’re missing the entire point of the class.

Students assume that they’re in class to learn the law. Wrong. They’re in class to learn what to do with the law they’re already supposed to know. This is the Socratic Method, and the professors’ use of the hypo. But without the foundation—an understanding of the legal point under discussion—the discussion is meaningless. So most law students are wasting their time in class, but have no idea not only that they’re spinning their wheels but that they’re supposed to be doing something foreign to their entire academic experience. They’re supposed to teach themselves the law before they go to class. They’re supposed to master the law in class. The good news is that, in most subjects, the law one needs to know is just a specific point—for example, under what conditions a “constructive eviction” is to have occurred. If they know this point, then the discussion becomes rather plain. (“It could be covered well in twelve minutes rather than covered poorly in sixty.”)

How does this obfuscation and inefficiency tie in with the core theme of this book? Because there is, on the part of law school faculties, a deliberate attempt to hide these truths and strategies from students, some even going so far as to actively discourage doing anything other than religiously reading every word of the casebook and briefing each case. What extraordinary inefficiency. What lunacy! Learning to dissect a case is important, but at the expense of learning how to think like a lawyer? (Everyone learning, not just a select few.)