Yeah, but really, they need to do more than just ask questions. Asking the questions just reinforces the very notion that it -- what's fair, what's efficient, etc - is common sense. And it just ain't so.
Do you think it makes a difference if they use those questions to break down people's "common sense" reactions to a case with respect to, say, fairness?
It could, if the kids had anything to draw on. The problem is that you have all sorts mixed in -- engineers who've never read Aristotle, economists who wouldn't know a laffer curve if it fondled them, etc. It's no good just asking the question; you have to say, "look, there is something called 'sociology' which complicates the notion of duress; there's something called 'literature' which complicates the idea of narrative; there's something called 'behavioral economics' which complicates the idea of utility; there's something called 'psychology' and something else called 'psychoanalysis' which makes 'mens rea' a troublesome conflict. But they don't do that. Maybe they -- the people who teach -- don't feel confident in their own grasp of these things, or maybe they do and they just don't see their job as doing anything other than getting through the casebook with as little fuss as possible. I'd guess that it's the latter. Raise those issue, and you'd have to deal with legal ed in an entirely different way; none of this business of pretending that holdings can be reconciled in any systematic way (this is, I think, a mistake that all metatheories, including, ironically, CLS, make).
A better approach would be to treat very, very few cases and explore the decision-making process in each of them. Look at the trial transcript, including the procedural motions to include/exclude certain evidence, a biography of the appellate judge, the kinds of narrative strategies used at the appellate level, what happened to the plaintiff and defendant after the resolution of the case, etc -- and back this up with a plausible multidisciplinary approach. Law is violence, law schools should take the law seriously. Instead, what they do -- what they seem to be engineered to do -- is to encourage students to both treat it as trivial AND to respect it. You've got to admire that they pull it off so well, but it doesn't exactly advance the cause of justice.
I think you've hit the nail on the head in terms of the capabilities of the class. While there are some students who do have experience in multiple areas due to multiple majors or varied work experience, many have a limited field of knowledge related strictly to their major and limited to no real-world experience from which to draw. As much as professors may want to try to ask more esoteric questions, in many cases, the students just don't respond. Lots of my professors will just make you answer something, but if the class is just not getting it, then the prof just has to move on.
I second the comments on class capabilities, and would add that a number of people, particularly the more linear, engineer-type thinkers wouldn't really get much out of many such discussions and would start zoning out pretty quickly. Not that it would provide no benefit to them, but if you view the teacher's job in terms of maximizing pedagogical utility for the greatest number of students (I do, I'd expect that many may not view it so simplistically), discussion of this must necessarily be limited in order to cover all of the concepts necessary to build a solid foundation of legal knowledge.
As I understand it, that's pretty much what first year is - the foundation. After first year, you'll likely get into classes that can expand on what I think are the really interesting questions. At Yale, I'm sure it'll be a more in-depth experience from the beginning.
Still, it's not like legal ed is the simple memorization of a bunch of facts, and even theories. Doing the sort of advocacy and counselling that most of us will do in practice, I think it is important to understand the underlying issues behind the principles - otherwise, you'll have trouble even knowing which principles should apply in differing situations. Teaching students to simply apply rules without thinking of the corresponding reasoning that led to the rule in the first place, which often requires a relevant history lesson, will lead to bad lawyering, and I hope that it's not the way any school teaches. All holdings may not be reconcilable, but they're certainly not random, nor are they produced in a vacuum.
In looking at each of your disciplines and asking the corresponding deeper questions, I'd say it's varied a lot from question to question. In crim law, we've spent a lot of time looking at the notions and history that underlie mens rea and differing theories of punishment, (even discussing Foucault for a while). In terms of literature and narrative, I don't know that I've heard either of those words spoken by a prof since I've been here. Utility and duress issues have fallen somewhere in between.
I can't say I agree with your approach to looking at a few cases very closely, unless you'd like for a JD to take 8 years instead of 3; there's simply too much material to really learn everything you need to know and get into that much depth for each case.
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