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Do Law Students Understand Jurisdiction, or Do We Just Assume They Do?

One of the biggest gaps in the first year law student’s ability to find a legal answer is the professor’s assumption that the average citizen (or beginning law student) understands the court system and the hierarchy of jurisdiction. Perhaps I am particularly ignorant, or perhaps the paucity of lawyers in my family left me prone to mistakes on this topic. Now that I teach research, I think about the mistakes I made in my first and second year and wonder how many of my students are suffering under similar misapprehensions.

This is a common danger for a teacher; as you become more experienced some parts of your subject seem obvious to you. Therefore teachers who have been immersed in the legal field may forget what seems obvious to them, that a particular court in the U.S. may be a federal or state court without having “federal” or “state” in its name. In many states the supreme court is the court of last resort, but in New York it is the Court of Appeals which is the highest court and the supreme courts are at a lower level. Because authority is hierarchical, confusing the order of the courts would be like thinking that the intern to the U.S. Secretary of Transportation outranks the President. We might rightfully assume our students know the president is the head of the executive branch, but it does not follow that they understand the judicial branch.

Teaching legal research in the common law system to a student who doesn’t know they are mistaken about the structure of the jurisdiction would be like teaching color theory to a student who didn’t know they were colorblind. Every research assignment I give to my students requires them to state the issue and the jurisdiction at the top of the research. I do this to try to make it clear if the student misunderstands the problem and believes the issue to be state law when it is actually federal law that is implicated. But if a student’s research emphasizes many cases from the wrong jurisdiction, I often assume they were placing undue importance on finding cases with similar fact patterns. Upon reflection, I have realized that some of them may not be able to read the citations and determine if a case is from a federal or state court, or they may have made mistakes on this point. Rather than misunderstanding the relative weights of authority, they may simply be unable to find binding cases from a particular jurisdiction because they do not understand the court structure of that jurisdiction.

This sort of student mistake is easy to misdiagnose. I learned this as a student, when one of my most helpful teachers told me that what she thought for years was a pervasive pronunciation error turned out to be a grammatical issue. In English we use the same word, better, for the comparative of good and the comparative of well, while in French these are two different words: the adjective meilleur and the adverb mieux. This teacher, who taught French to American students, told us that she spent years thinking that her students had a particularly hard time pronouncing both meilleur and mieux, until one day she realized that her students, unable to decide whether they needed an adjective or adverb in French to translate the English word better, were simply mumbling a combination of both words in the hopes that their teacher would selectively hear the correct part of speech. She gave us a grammatical lesson on the difference between adjectives and adverbs and, voila! our pronunciation was immediately better! I think that with more emphasis on teaching jurisdiction we might find that our students’ problems finding relevant case law depends more on questions of jurisdiction than we have realized. More time spent on teaching jurisdiction could eliminate hours of frustration for our students as they struggle to distinguish between legal authority and useless information.

Comments

  1. I agree wholeheartedly that “More time spent on teaching jurisdiction could eliminate hours of frustration for our students as they struggle to distinguish between legal authority and useless information.” I have worked with articling students in law libraries (firm and courthouse) for over 30 years and have incorporated a discussion of jurisdiction in any orientation that we provide.

    Students need to understand the concept of binding and persuasive authority of case law to ensure the time they spend researching is not wasted. All law schools instructors should follow your lead of assuming no prior knowledge and teach this basic, and yet essential concept.

  2. Lack of understanding of the court system in first year students goes back a long way. When I taught at the University of New Brunswick (from 1992 to 2001), we instituted an intensive week at the beginning of first year to give all students a similar background in the courts and the institutions of Canada. It was surprising how many students did not know the latter. I see UNB has a required Foundations of Law course in first year, which looks much like the Legal Methods course I taught when I was there, but I don’t see an equivalent to the intensive week. My subsequent contact with first year students reinforced for me the need for something like this. Having said that, determining the appropriate jurisdiction isn’t always easy even for experienced lawyers!

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