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Problem Solving: An Annotated Bibliography
by
Phyllis C. Marion
Director of the Library and
Professor
California Western School of
Law
Click
here for Problem Solving Bibliography Update (2000)
Originally
published in 34 Cal. W.L. Rev. 537
(1998)
Copyright California Western Law
Review. By permission of the California
Western Law Review.
In
1997, California Western School of Law
began a concerted effort to implement
its Mission:
"to graduate creative problem
solvers committed to the improvement of
our legal system and society." As part
of that effort, I began to compile a
bibliography of materials on problem
solving to assist both the faculty in
its research, and the library in
collection development.
The
bibliography covers English-language
monographs and books (both academic in
nature and from the popular press) on
problem solving in general from a
variety of disciplines such as
psychology, education, and the
management sciences. It also includes
monographs, books, and journal articles
about problem solving in legal
education and legal practice. It does
not include journal articles from
disciplines outside of law, nor
materials on particular types of
problem solving within law, such as
negotiation, mediation, and ADR. The
date of coverage is through early
1998.
I
have briefly annotated each entry. When
possible, I have included a quote from
the work which I feel gives a sense of
its emphasis and flavor.
The
bibliography is a work in progress.
It will be updated regularly through
the California Western School of Law
Library's Web page found at
http://www.cwsl.edu.
Table
of Contents
I.
Problem Solving: General
Monographs
II.
Problem Solving: Legal
Monographs
III.
Problem Solving: Legal
Periodicals
I.
Problem Solving: General Monographs
(By Author)
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ACKOFF,
Russell L. The Art of Problem Solving:
Accompanied by Ackoff's Fables. New
York, NY: Wiley, 1978.
Aimed
at the lay reader, Ackoff's
real-life examples all lead to a
moral about problem solving:
"Problem solving is what I have been
trying to do all my adult life . . .
[a]nd now, in my 'late
period', I find myself preoccupied
with the art of problem solving,
keeping both philosophy and science
ever at my side." (p.
ix)
ADAMS,
James L. The Care and Feeding of Ideas:
A Guide to Encouraging Creativity.
Reading, MA: Addison-Wesley Pub. Co.,
1986.
Meant
as a self-teaching tool, this book
principally deals with change, with
an emphasis on problem solving. It
includes mini-exercises to reinforce
specific techniques the author feels
are of great value in managing
creativity and change.
ADAMS,
James L. Conceptual Blockbusting: A
Guide to Better Ideas. 3rd
ed. Reading, MA: Addison-Wesley Pub.
Co., 1986.
Conceptual
Blockbusting focuses on
conceptualization, not verbal and
analytical skills, while emphasizing
creativity.
AMSLER,
Mark, ed. Creativity and the
Imagination: Case Studies from the
Classical Age to the Twentieth Century.
Newark, NJ: University of Delaware
Press, 1987. (Studies in science and
culture, v. 3)
Amsler
presents three real-life case
studies involving problem solving:
one in physics, one in philosophy,
and one in painting.
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BARKER,
Alan. Creativity for Managers. London,
Eng.: The Industrial Society,
1995.
Aimed
at managers, this work is a "quick
read" which focuses on the need for
creativity as an essential
management skill. "Creativity is
less about solving problems than
about finding them." (p.
41)
BARROWS, Howard S. How to Design a
Problem-Based Curriculum for the
Preclinical Years. New York, NY:
Springer, 1985. (Springer series on
medical education, vol. 8)
While
the focus of this work is on medical
education, the introduction includes
a general discussion of the
objectives of problem-based
learning.
BEAN,
John C. Engaging Ideas: The Professor's
Guide to Integrating Writing, Critical
Thinking, and Active Learning in the
Classroom. San Francisco, CA:
Jossey-Bass, 1996.
Part
2 of this work is devoted to
designing problem-based writing
assignments that promote critical
thinking.
BEREITER,
Carl & Marlene SCARDAMALIA.
Surpassing Ourselves: An Inquiry into
the Nature and Implications of
Expertise. Chicago, IL: Open Court,
1993.
Expertise
is a process of progressive problem
solving during which a person
continually rethinks and redefines
his/her work. The authors discuss
how one grows from being a novice in
an area to being an
expert.
BERGER,
Dale E., Kathy PEZDEK and William P.
BANKS, eds. Applications of Cognitive
Psychology: Problem Solving, Education,
and Computing. Hillsdale, NJ: Lawrence
Erlbaum Assoc., 1987.
Part
2 of this work concentrates on the
teaching of thinking and problem
solving. Of particular interest is
Chapter 8, Teaching Productive
Problem Solving and Attitudes,
by Kenneth Pfeiffer, Gregory
Feinberg, and Steven Gelber, which
emphasizes the importance of how
problem solving is taught as
compared to what is being
taught.
BIGGS,
John B., ed. Teaching for Learning: the
View from Cognitive Psychology.
Hawthorne, Aus.: Australian Council for
Educational Research, 1991.
Teaching
for Learning provides a
methodology for applying the results
from various research studies on the
learning process to the teaching of
problem solving, with a particular
emphasis on students' perspectives
on the learning process.
BORCK,
Leslie E. and Stephen B. FAWCETT.
Learning, Counseling and
Problem-Solving Skills. New York, NY:
Haworth Press, 1982.
This
work contains a series of problem
solving exercises meant to teach
this skill to counselors and their
assistants. It includes an
instruction manual.
BOUD,
David and Grahame I. FELETTI, eds. The
Challenge of Problem-Based Learning.
2nd ed. London, Eng.: Kogan
Page, 1997.
The
authors of the included essays
explore the strength and weaknesses
of problem-based learning, with
particular emphasis on how it might
be applied to professional
education. While most of the authors
are sympathetic to problem-based
learning, they do address the
subject critically and examine many
views on the techniques used.
Chapter 23, Applying
Problem-Based Learning To Practical
Legal Training, by Keith Winsor,
discusses the use of problem-based
learning in practical legal training
at the College of Law, New South
Wales.
BRANSFORD,
John D. and Barry S. STEIN. The IDEAL
Problem Solver: A Guide for Improving
Thinking, Learning and Creativity.
2nd ed. New York, NY: W.H.
Freeman & Co., 1993.
Bransford
and Stein present a model for
improving problem solving skills.
The work includes problems and
exercises (with answers) to help the
readers improve their problem
solving skills.
BRANSFORD,
John D., Robert D. SHERWOOD and Tom
STURDEVANT. "Teaching Thinking and
Problem Solving." Teaching Thinking
Skills: Theory and Practice.
Eds. Joan Boykoff Baron and Robert J.
Sternberg. New York, NY: W.H. Freeman
& Co., 1987. 162-181.
The
authors describe the ideal problem
solver and then discuss the problem
of teaching thinking and problem
solving. They also explain how to
evaluate programs which teach such
skills.
BRIDGES,
Edwin M. and Philip HALLINGER.
Problem-based Learning for
Administrators. Eugene, OR: ERIC
Clearinghouse On Educational
Management, University of Oregon,
1992.
"Problem-based
learning" is an educational approach
in which students working in small
groups take responsibility for
solving problems. The authors show
how this approach was used in a
training program for prospective
school principals.
BRIGHTMAN,
Harvey J. Problem Solving: A Logical
and Creative Approach. Atlanta, GA:
Business Publishing Division, College
of Business Administration, Georgia
State University, 1980.
Problem
Solving is intended as an aid
for "training practicing managers to
develop systematic and creative
approaches to solving the problems
they face." (p. vii)
BROWN,
Stephen I. and Marion I. WALTER. The
Art of Problem Posing. 2nd
ed. Hillsdale, NJ: Lawrence Erlbaum
Assoc., 1990.
Defining
the correct problem to be solved is
of paramount importance in any
problem solving model. This work
focuses on problem posing in
mathematics, but the strategies
employed are applicable to diverse
problem situations. The authors
assume the reader has completed high
school mathematics.
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CARPENTER,
Susan L. and W.J.D. KENNEDY. Managing
Public Disputes: A Practical Guide to
Handling Conflict and Reaching
Agreements. San Francisco, CA:
Jossey-Bass, 1988.
Managing
Public Disputes is intended to
enable decision makers involved in
public disputes to solve problems
without mediation.
COUGER,
J. Daniel. Creative Problem Solving and
Opportunity Finding. Hinsdale, IL: Boyd
& Fraser, 1995. (Decision making
and operations management
series)
This
textbook discusses creative problem
solving methodology in business and
management.
COVEY,
Stephen R. The Seven Habits of Highly
Effective People: Restoring the
Character Ethic. New York, NY: Simon
& Schuster, 1990.
Covey's
highly popular book concentrates on
improving personal effectiveness,
with an emphasis on ethical,
people-oriented conduct. Problem
solving is seen as an opportunity to
arrive at mutually beneficial,
mutually satisfying solutions
(win/win principle).
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DAVIS,
Gary A. Psychology of Problem Solving:
Theory and Practice. New York, NY:
Basic Books, 1973.
This
review of basic research done on
problem solving through 1972 is
slanted toward the
psychologist.
DOLAN,
Daniel T. and James WILLIAMSON.
Teaching Problem-Solving Strategies.
Menlo Park, CA: Addison-Wesley Pub.
Co., 1983.
Although
the problem solving activities
included in this book are aimed at
junior-high school math students,
they may be helpful in developing
useful exercises for any age
group.
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FISHER,
Roger and William URY. Getting to Yes:
Negotiating Agreement Without Giving
In. 2nd ed. New York, NY:
Penguin Books, 1991.
Getting
to Yes is an often-cited popular
work for the lay reader on how to
satisfactorily address problems
through negotiation.
FLOOD,
Robert L. and Michael C. JACKSON.
Creative Problem Solving: Total Systems
Intervention. New York, NY: Wiley,
1991.
Total
Systems Intervention ("TSI") is a
technique which seeks to "choose an
appropriate methodology for tackling
the problem situation as it is
perceived, but always to recognize
that other possible perceptions of
that problem situation are
possible." (p. xi) It uses case
studies geared toward management,
but the technique has application to
social and political
problems.
FLOOD,
Robert L. Solving Problem Solving: A
Potent Force for Effective Management.
New York, NY: Wiley, 1995.
The
authors use the TSI ("Total Systems
Intervention") technique in case
studies from a variety of
disciplines and jurisdictions.
Solving Problem Solving is
aimed at managers in organizations
and their consultants.
FLOWER,
Linda. Problem-Solving Strategies for
Writing. 1st ed. New York,
NY: Harcourt Brace Jovanovich,
1981.
This
work is a basic textbook on how to
write about problems and their
solutions.
FOX,
William M. Effective Group Problem
Solving: How to Broaden Participation,
Improve Decision Making, and Increase
Commitment to Action. San Francisco,
CA: Jossey-Bass, 1987.
Fox
emphasizes group problem solving as
an effective management technique
for a work group, committee or
volunteer group. He presents a
process known as Improved Nominal
Group Technique ("INGT") which
employs rules and procedures to
minimize the problems associated
with group procedures.
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GAGNE
, Robert M. The Conditions of Learning
and Theory of Instruction.
4th ed. New York, NY: Holt,
Rinehart and Winston, 1985.
Chapter
9, Problem Solving, is of
particular interest. Gagne describes
problem solving as a process that
yields new learning through the
application of previously-learned
rules.
GAGNE
, Robert M. "Problem Solving."
Categories of Human Learning.
Ed. Arthur W. Melton. New York, NY:
Academic Press, 1964.
293-317.
Problem
Solving is a detailed
examination of the author's theory
of the problem solving process. It
is accompanied by comments by Tracy
S. Kendler, Learning and Problem
Solving: Comments on Professor
Gagne 's Paper. (p.
318-323)
GICK,
Mary L. and Keith J. HOLYOAK.
"Analogical Problem Solving." Issues
in Cognitive Modeling: A
Reader. Eds. A.M. Aitkenhead
and J.M. Slack. London, Eng.: Lawrence
Erlbaum Assoc., 1985.
279-306.
This
study describes the author's
investigation of the use of analogy
as a guide to solving ill-defined
problems.
GILHOOLY,
K.J., ed. Human and Machine Problem
Solving. New York, NY: Plenum,
1989.
Starting
with the premise that problem
solving is a form of information
processing, the editor compares and
contrasts, in complimentary
chapters, problem solving by humans
and problem solving by machines
(artificial
intelligence).
GRAY,
Barbara. Collaborating: Finding Common
Ground for Multiparty Problems. San
Francisco, CA: Jossey-Bass,
1989.
Gray
presents collaboration as a problem
solving device in multiparty
disputes.
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HARE,
A. Paul. Creativity in Small Groups.
Beverly Hills, CA: Sage,
1982.
Hare
discusses how small groups can work
together for maximum creativity. The
author believes "the steps in the
creative process are essentially the
same as the steps in ordinary
problem solving. The difference lies
in the degree of originality of the
product." (p. 11)
HARRISON,
Allen F. Styles of Thinking: Strategies
for Asking Questions, Making Decisions,
and Solving Problems. Garden City, NY:
Anchor Press/Doubleday,
1982.
Intended
as a guide to understanding your own
style of thinking and to introduce a
number of theories for augmenting
and expanding that style, Harrison
presents the reader with new
strategies for problem
solving.
HAYES,
John R. The Complete Problem Solver.
2nd ed. Hillsdale, NJ:
Lawrence Erlbaum Assoc.,
1989.
The
Complete Problem Solver is
intended as a text for a course in
general problem solving skills.
"Teaching problem solving skills is
a bit like coaching: the instructor
needs to watch the students in
action to be sure that they are
performing the skills in the right
way." (p. viii)
HODNETT,
Edward. The Art of Problem Solving: How
to Improve Your Methods. New York, NY:
Harper, 1955.
Intended
for the general reader, this
self-help book provides suggestions
on how to solve problems in all
areas of one's life.
HOGARTH,
Robin M. Judgment and Choice: The
Psychology of Decision. 2nd
ed. New York, NY: John Wiley &
Sons, 1987.
Hogarth's
goal is to teach the reader better
decision making by emphasizing the
unstructured, natural way
individuals make judgments and
choices. Chapter 9, Problem
Structuring and Decision Aids,
is of particular
interest.
HOLYOAK,
Keith J. "Problem Solving."
Thinking: An Invitation to
Cognitive Science, v. 3.
2nd ed. Eds. Daniel N.
Osherson and Edward E. Smith.
Cambridge, MA: M.I.T. Press, 1990.
267-296.
Holyoak
discusses the nature of problem
solving and the theoretical issues
the topic raises for cognitive
science.
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JACKSON,
Keith F. The Art of Solving Problems.
New York, NY: St. Martin's Press,
1975.
The
Art of Solving Problems
centers its discussion on five
stages of problem solving: (1)
formulating the problem; (2)
interpreting the problem; (3)
constructing courses of action; (4)
decision making; and (5)
implementation.
JONES,
Beau Fly, Claudette M. RASMUSSEN and
Mary C. MOFFITT. Real-Life Problem
Solving: A Collaborative Approach to
Interdisciplinary Learning.
1st ed. Washington, D.C.:
American Psychological Association,
1997.
While
the focus is on primary and
secondary education, the authors
include a general introduction to
problem-based learning.
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KAUFMAN,
Roger. Identifying and Solving
Problems: A Systems Approach.
1st ed. La Jolla, CA:
University Assoc., 1976.
Intended
for the general reader, this is a
how-to approach on solving life's
problems.
KRANTZ,
Steven G. Techniques of Problem
Solving. Providence, RI: American
Mathematical Society, 1997.
Using
mostly mathematical examples, Krantz
presents a methodology for
analytical thinking, discussing the
basic principles of problem solving,
both mathematical and
non-mathematical.
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LAMB,
David. Discovery, Creativity and
Problem-Solving. Brookfield, VT:
Avebury, 1991.
This
book is a philosophical inquiry into
creativity and discovery with an
emphasis on a rational account of
the process. Chapter 4, Discovery
as a Mode of Problem-Solving,
emphasizes discovery in science,
with some information on computer
simulation of the problem solving
process. The work contains an
interesting section on solution
generators vs. solution
restrictors.
LEICHTMAN,
Harry M. Helping Work Environments
Work. Washington, D.C.: CWLA Press,
1996.
While
this book is geared to social
service agency work, Chapter 8,
The Notion of a Problem and its
Management, contains an analysis
of what "problems" are.
LEIGH,
Andrew. Decisions, Decisions!: A
Practical Management Guide to Problem
Solving and Decision Making. Hampshire,
Eng.: Gower, 1983.
Aimed
at middle managers as a practical
aid to enhancing the decision making
process, Chapter 1 discusses a
variety of different frameworks
representing the problem solving
process. The book includes
checklists and strategies
suggestions.
LURIIA,
Aleksandr R. and Lubov S. TSVETKOVA.
The Neuropsychological Analysis of
Problem Solving. Orlando, FL: Paul M.
Deutsch Press, 1990. (Classic Soviet
Psychology Series)
Translated
from a Russian work originally
written in the 1960s, this is a very
technical discussion of the
neuropsychological underpinnings of
problem solving.
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MAIER,
Norman R.F. Problem Solving and
Creativity in Individuals and Groups.
Belmont, CA: Brooks/Cole Pub. Co.,
1970.
Maier
analyzes a variety of laboratory
studies in problem
solving.
MAIER,
Norman R.F. Problem Solving Discussions
and Conferences: Leadership Methods and
Skills. New York, NY: McGraw-Hill,
1963.
The
author discusses the skills
necessary to provide effective
leadership in group problem
solving.
MARSHALL,
Sandra P. Schemas in Problem Solving.
New York, NY: Cambridge University
Press, 1995.
"Schema,"
a means by which similar experiences
are assimilated and brought together
to be remembered, play an important
role in problem solving.
MATTAINI,
Mark A. and Bruce A. THYER, eds.
Finding Solutions to Social Problems:
Behavioral Strategies for Change.
Washington, D.C.: American
Psychological Association,
1996.
The
editors have included essays by
behavioral analysts exploring
solutions to some important social
problems that have a critical impact
on human life. Solutions involve
practical application of the general
principles of the science of
behavior to areas such as sexual
coercion, child maltreatment,
education, crime, and drug
abuse.
MAYER,
Richard E. Thinking, Problem Solving,
Cognition. 2nd ed. New York,
NY: W.H. Freeman, 1992.
Mayer's
goal is to introduce the reader to
the cognition aspects of cognitive
psychology. He includes a variety of
problem solving activities. Of
particular interest is Chapter 12,
Creativity Training: Thinking as
a Learnable Skill.
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NADLER,
Gerald and Shozo HIBINO. Breakthrough
Thinking. 2nd ed. Rocklin,
CA: Prima Publishing, 1994.
Intended
as a self-help book, Breakthrough
Thinking presents a method of
problem solving involving seven
basic principles of successful
solution finding.
NATHANSON,
Leslie, Francis L. ULSCHAK and Peter G.
GILLAN. Small Group Problem Solving: An
Aid to Organizational Effectiveness.
Reading, MA: Addison-Wesley,
1981.
The
authors set up a logical path to
solve problems in group settings,
stressing an active stance toward
the process.
NEWELL,
Allen and Herbert A. SIMON. Human
Problem Solving. Englewood Cliffs, NJ:
Prentice-Hall, 1972.
Human
Problem Solving is an
often-cited early work in the study
of problem solving. The authors
develop a theory of problem solving
in knowledge-lean task domains
(those that do not require previous
knowledge to solve a
problem).
NICKERSON,
Raymond S., David N. PERKINS, and
Edward E. SMITH. The Teaching of
Thinking. Hillsdale, NJ: Lawrence
Erlbaum Assoc., 1985.
Chapter
4, Problem Solving, Creativity
and Metacognition, is a review
of the research on problem solving
and the teaching of problem solving
skills.
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PRUITT,
Dean G. and Peter J. CARNEVALE.
Negotiation in a Social Conflict.
Pacific Grove, CA: Brooks/Cole Pub.
Co., 1993. (Mapping Social Psychology
Series)
This
work is an introduction to the
social psychological literature on
negotiation and mediation as a means
of resolving social conflict.
Problem solving is one of the key
strategies in negotiation and
mediation. Chapter 7, The Dual
Concern Model and the Determinants
of Problem Solving, discusses
problem solving's applicability in
negotiation when there are dual
concerns: concern for one's own
outcome, and concern for the outcome
of the other party.
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ROTH,
William, James RYDER and Frank VOEHL.
Problem Solving for Results. Delray
Beach, FL: St. Lucie Press,
1996.
With
a focus on problem solving in the
workplace, the authors discuss how
to reward problem solving and
influence attitudes toward problem
solving. They present tools and
techniques for increasing the
effectiveness of problem solving
efforts. One particular model,
Quality Journey Problem Solving
Process, is covered in
detail.
ROTHMAN,
Jay. Resolving Identity-Based Conflict
in Nations, Organizations, and
Communities. 1st ed. San
Francisco, CA: Jossey-Bass, 1997.
(Jossey-Bass Conflict Resolution
Series)
Rothman
integrates problem solving
techniques into the resolution of
public problems.
RUBINSTEIN,
Moshe F. and Iris R. FIRSTENBERG.
Patterns of Problem Solving.
2nd ed. Englewood Cliffs,
NJ: Prentice-Hall, 1995.
Intended
as a textbook for classes in problem
solving, Patterns of Problem
Solving presents various models
for problem solving, with attention
paid to the interplay of cultural
values and human values. It
"attempts to provide the reader with
tools and concepts that are most
productive in problem solving . . .
." (p. xiii) Problems for the user
to solve are included.
RUSSO,
J. Edward and Paul J.H. SCHOEMAKER.
Decision Traps: The Ten Barriers to
Brilliant Decision-Making and How to
Overcome Them. New York, NY: Simon
& Schuster, 1989.
The
authors provide the lay reader with
systematic coaching on how to make
decisions, using good decision
makers as models.
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SANDERSON,
Michael. Successful Problem Management.
New York, NY: Wiley, 1979.
Using
the building-block approach,
Sanderson provides managers with a
methodology/technique for promptly
detecting and solving
problems.
SCHOENNAUER,
Alfred W.W. Problem Finding and Problem
Solving. Chicago, IL: Nelson-Hall,
1981.
This
manual on the techniques of problem
solving, beginning with the step of
problem finding, is presented from a
management viewpoint.
SCHOEN, Donald A. Educating the Reflective
Practitioner: Toward a New Design for
Teaching and Learning in the
Professions. 1st ed. San
Francisco, CA: Jossey-Bass,
1987.
The
author proposes that "professional
education should be redesigned to
combine the teaching of applied
science with coaching in the
artistry of reflection-in-action."
(p. xii) Reflection-in-action is the
skilled practice of thinking about
what you are doing while you are
doing it. It stresses learning by
doing in such a manner that the doer
can go beyond the stateable rule to
new ways of framing problems in
order to reach a resolution. Much of
the book describes the use of this
technique in the performing and
visual arts, but the concluding
section turns to the use of this
technique in the
professions.
SCHOEN, Donald A. The Reflective
Practitioner: How Professionals Think
in Action. New York, NY: BasicBooks,
1983.
Schoen
inquires into the epistemology of
professional practice, addressing
the question, "What is the kind of
knowing in which competent
practitioners engage?" (p. viii) He
postulates that practitioners in
most professions have a capacity for
reflection in their intuitive
knowledge that allows them to solve
problems that arise in the practice
of their profession. While he uses
examples from professions other than
law, his analysis could be applied
to the legal profession.
SCHOEN, Donald A., ed. The Reflective Turn:
Case Studies in and on Educational
Practice. New York, NY: Teachers
College Press, Teachers College,
Columbia University, 1991.
This
is a collection of essays describing
practice situations exemplifying Schoen's theory of reflective
practice in the professional
setting. Chapter 7, Recipes and
Reflective Learning: "What Would
Prevent You From Saying It That
Way?" by Robert W. Putnam,
analyzes the changing use of
"recipes," i.e., prescribed phrases,
during various stages of the
learning process.
SIMON,
Herbert A. "Information-Processing
Theory of Human Problem Solving."
Issues in Cognitive Modeling: A
Reader. Eds. A.M. Aitkenhead and
J.M. Slack. London, Eng.: Lawrence
Erlbaum Assoc., 1985.
253-278.
Simon
presents an overview of the general
theory of problem solving derived
from research during the past twenty
years. He examines research that has
been done to formulate the theory,
and some of the methodological
issues that have to be faced in that
research.
SINNOTT,
Jan D., ed. Everyday Problem Solving:
Theory and Applications. New York, NY:
Praeger, 1989.
The
editor provides the reader with
access to parts of the everyday
problem solving literature not
normally encountered. Included are
discussions of key everyday problem
solving areas, emphasizing the
psychological and educational
perspectives. Chapter 11,
Interpreting Discrepant
Narratives: Hermeneutics and Adult
Cognition, by Bonnie Leadbeater
and Deanna Kuhn, is particularly
intriguing.
STERNBERG,
Robert J. and Peter A. FRENSCH, eds.
Complex Problem Solving: Principles and
Mechanisms. Hillsdale, NJ: Lawrence
Erlbaum Assoc., 1991.
Sternberg
and Frensch present a comprehensive
overview of the then-current
research on problem solving. They
include discussion of the practical
application of such research. Of
particular interest is Chapter 7,
Do Lawyers Reason Differently
from Psychologists?: A Comparative
Design for Studying Expertise,
by Eric Amsel, Rosanna Langer and
Lynn Loutzehniser.
STERNBERG,
Robert J. and Janet E. DAVIDSON, eds.
The Nature of Insight. Cambridge, MA:
MIT Press, 1995.
The
contributions selected by the
editors represent diverse points of
view on the phenomenology of
insight. Of particular interest are
Chapter 2, Insight and Problem
Solving, by Roger L. Dominowski
and Pamela Dallob; and Chapter 5,
Prolegomena to Theories of
Insight in Problem Solving: A
Taxonomy of Problems, by Robert
W. Weisberg.
STERNBERG,
Robert J. Thinking and Problem Solving.
2nd ed. San Diego, CA:
Academic Press, 1994.
Aimed
at the cognitive scientist, this
collection of articles covers a wide
range of topics related to thinking
and problem solving. Of particular
interest are: Chapter 7, Problem
Solving, by Earl Hunt; and
Chapter 13, The Teaching of
Thinking and Problem Solving, by
Raymond S. Nickerson.
STICE,
James E., ed. Developing Critical
Thinking and Problem-Solving Abilities.
San Francisco, CA: Jossey-Bass, 1987.
(New Directions for Teaching and
Learning; no. 30)
The
editor has included articles with
various authors' perspectives on how
to teach problem solving and
critical thinking
skills.
STONEWATER,
Jerry K. "Strategies for Problem
Solving." Fostering Critical
Thinking. Ed. R.E. Young. San
Francisco, CA: Jossey-Bass, 1980. (New
Directions for Teaching and Learning,
no. 3) 33-58.
Stonewater
describes four approaches to
teaching problem solving. He then
uses various elements of the
approaches to devise his own model
for successful teaching of problem
solving.
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TUMA,
D.T. and R. REIF, eds. Problem Solving
and Education: Issues in Teaching and
Research. Hillsdale, NJ: Lawrence
Erlbaum Assoc., 1980.
Tuma
and Rief present detailed
descriptions of then-current
research projects in the nature and
teaching of problem
solving.
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ULSCHAK,
Francis L. "Finishing Unfinished
Business: Creative Problem Solving."
1979 Handbook for Group
Facilitators. Ed. John E. Jones and
J. William Pfeiffer. La Jolla, CA:
University Assoc., 1979.
154-173.
Ulschak's
article attempts to provide an
understanding of how problem solving
is facilitated or blocked in both
individuals and groups. He then goes
on to describe various problem
solving tools.
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VANGUNDY,
Arthur B. Creative Problem Solving: A
Guide for Trainers and Management. New
York: Quorum Books, 1987.
Meant
as a textbook, Creative Problem
Solving focuses on dealing with
ill-structured problems, using the
Osborn-Parnes Creative Problem
Solving ("CPS") model. The author
believes "you are born with certain
attributes that can affect your
ability to deal with problems.
However, there also are certain
problem solving skills that you
acquire throughout your life." (p.
1)
VANGUNDY,
Arthur B. Techniques of Structured
Problem Solving. 2nd ed. New
York: Van Nostrand Reinhold Co.,
1988.
This
work is a guide to over 100
techniques that can be used to
facilitate the creative problem
solving process. The techniques are
not prescriptive but meant to be
used as a flexible set of
activities. The author includes a
general problem solving model and
guidelines for selecting and using
the techniques. He also describes
the use of the techniques to resolve
a variety of ill-structured
problems.
VANLEHN,
Kurt. "Problem Solving and Cognitive
Skills Acquisition." Foundations of
Cognitive Science. Ed.
Michael I. Posner. Cambridge, MA: MIT
Press, 1990. 527-579.
Using
an overview of research in the
field, the author does not attempt
to provide a coherent theory of
problem solving, but rather
describes the ingredients necessary
for developing such a
theory.
VOSS,
James F., et al. "Problem-Solving Skill
in the Social Sciences." The
Psychology of Learning and
Motivation. Ed. Gordon H. Bower.
New York, NY: Academic Press, 1983.
(Advances in Research and Theory, v.
17) 165-213.
The
authors concentrate on problem
solving in political science,
particularly on problems related to
the Soviet Union. The article
includes a flow chart on problem
solving techniques.
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WHIMBEY,
Arthur and Jack LOCHHEAD. Beyond
Problem Solving and Comprehension: An
Exploration of Quantitative Reasoning.
Philadelphia, PA: Franklin Institute
Press, 1984.
The
authors explore the use of
quantitative reasoning (i.e.,
mathematical) skills in technical
disciplines.
WHIMBEY,
Arthur and Jack LOCHHEAD. Problem
Solving and Comprehension.
5th ed. Hillsdale, NJ:
Lawrence Erlbaum Assoc.,
1991.
This
self-help textbook on increasing
problem solving ability contains a
variety of exercises and
tests.
WILKERSON,
LuAnn and Wim H. GIJSELAERS, eds.
Bringing Problem-Based Learning to
Higher Education: Theory and Practice.
San Francisco, CA: Jossey-Bass, 1996.
(New Direction for Teaching and
Learning, no. 68)
"This
volume describes the growth of PBL
from early days in medical schools
to current uses in a variety of
fields." (Introductory materials)
The editors, believing problem-based
learning to be a standard teaching
method, have collected a number of
short papers related to this
methodology.
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II.
Problem Solving in the Legal
Profession: Monographs
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American
Bar Association Task Force on Law
Schools and the Profession:
Narrowing the Gap. Legal Education
and Professional Development: An
Educational Continuum. Chicago, IL:
American Bar Association,
1992.
Known
as the MacCrate Report, this
report lists problem solving as one
of the fundamental lawyering skills.
It goes on to identify five
underlying skills in problem
solving: "identifying and diagnosing
a problem, generating alternative
solutions and strategies, developing
a plan of action, implementing the
plan, and keeping the planning
process open to new information and
ideas." (p. 142)
AMSEL,
Eric, Rosanna LANGER and Lynn
LOUTZENHISER. "Do Lawyers Reason
Differently from Psychologists? A
Comparative Design for Studying
Expertise." Complex Problem
Solving: Principles and
Mechanisms. Eds. Robert
Sternberg and Peter Frensch.
Hillsdale, NJ: Lawrence Erlbaum
Assoc., 1991. 223-250.
The
authors begin with the premise that
lawyers are experts in solving
complex problems within their area
of expertise, as are psychologists.
They then examine the question of
whether the education and experience
of lawyers leads them to solve the
same problem differently than
experts in other professions. That
is, is there a uniquely legal style
of reasoning and problem
solving?
Association
of American Law Schools Committee on
Teaching Methods. "Report of the
Committee on Teaching Methods, 1966:
The Problem Method, Survey and
Appraisal." Proceedings,
Association of American Law Schools
1966 Annual Meeting, pt.
1. Washington, D.C.:
American Association of Law Schools,
1966. 198-266.
The
Report is an analysis of the
results of an inquiry into the rise
of the problem method (as opposed to
the case-method) of instruction in
American law schools in the
mid-1960s. It defines the focus of
the problem method as analysis of
the problem(s) posed, not as an
analysis of solutions already
rendered.
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BASTRESS,
Robert M. and Joseph D. HARBAUGH.
Interviewing, Counseling and
Negotiating: Skills for Effective
Representation. Boston, MA: Little,
Brown, 1990.
The
authors discuss several models,
other than the adversarial model,
which may be used to provide
effective representation for a
client.
BENNETT,
Merit. Law and the Heart: A New
Paradigm for Lawyer-Client
Relationships. Sante Fe, NM: The
Author, 1994.
Law
and the Heart is a series of
essays discussing the psychological
framework underlying the interaction
between lawyer and client. It
reflects the author's philosophy
that a lawyer must "expand . . .
[his/her] awareness of the
intrinsic laws of human relationship
. . . by understanding the mind's
habits and by re-introducing
intuition through the feeling
heart." (p. 3)
BINDER,
David A., Paul BERGMAN and Susan C.
PRICE. Lawyers as Counselors: A
Client-Centered Approach. St. Paul,
MN: West Pub. Co., 1991. (American
Casebook Series)
This
casebook is a practical guide to a
client-centered approach to problem
solving. "More than a set of
techniques, the client-centered
approach is an attitude of looking
at problems from clients'
perspectives, of seeing problems'
diverse natures and of making
clients true partners in the
resolution of their problems." (p.
xxi)
BROWN,
Louis M. Lawyering Through Life: The
Origin of Preventive Law. Littleton,
CO: Rothman, 1986.
Lawyering
Through Life is the
autobiography of the lawyer who
first used the term "preventive law"
to describe his belief that a major
concern of the lawyer should be to
prevent legal problems for his
clients.
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COSTANZO,
Margot. Problem Solving. London,
Eng.: Cavendish Pub. Ltd., 1995.
(Essential Legal Skills)
Costanzo's
work is intended for Australian law
students, but the methodology
advocated for teaching problem
solving skills is applicable to any
course of legal studies. The author
distinguishes between creative
thinking ("search for new knowledge
and new methodologies") and problem
solving ("applying established
professional knowledge and
methodologies to solve a problem").
(p. 3)
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FREUND,
James C. Lawyering: A Realistic
Approach to Legal Practice. New
York, NY: Law Journal Seminars
Press, 1979.
Chapter
2 addresses the lawyer as problem
solver: which problems come to the
lawyer, the reflective process for
addressing these problems, and the
application of analytical reasoning
to non-legal
problems.
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GALANTER,
Marc and Thomas PALAY. Tournament of
Lawyers: The Transformation of the
Big Law Firm. Chicago, IL:
University of Chicago Press,
1991.
This
history of the emergence of the big
law firm documents the changes of
the last 20 years, many of which the
author finds disturbing. Chapter 6
presents a brief inquiry into the
future shapes of law practice,
mentioning a new emphasis on problem
solving.
GUINIER,
Lani, Michelle FINE and Jane BALIN.
Becoming Gentlemen: Women, Law
School, and Institutional Change.
Boston, MA: Beacon Press,
1997.
The
authors assume that lawyers are
basically problem solvers. They then
go on to address the question: "Are
conventional teaching methods and
assessment techniques predictive of
the kinds of work, the kinds of
relationships, the kinds of
collaborative approaches to solving
private and public problems that
lawyers will need in the future?"
(p. 5)
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HALL,
Lavinia, ed. Negotiation: Strategies
for Mutual Gain. Newbury Park, CA:
Sage Publications, 1993.
Based
on the basic seminar of the Harvard
Program on Negotiation at Harvard
Law School, this work, while dealing
mainly with conflict management, "is
about breaking the paradigm of
winning and losing and transforming
negotiation into a search for
improved solutions to problems." (p.
viii) Of particular interest is
Chapter 3, Facilitated
Collaborative Problem Solving and
Process Management, by David
Strauss.
HARTJE,
Jeffrey H. and Mark E. WILSON.
Lawyers' Work: Counseling, Problem
Solving, Advocacy and Conduct of
Litigation. Seattle, WA:
Butterworth, 1984.
Lawyers'
Work is often cited by other
works which discuss problem solving
as a major component of the lawyer's
work. Chapters 1 and 2 are of
particular interest.
HAYDOCK,
Roger S., et al. Lawyering: Practice
and Planning. St. Paul, MN: West
Pub. Co., 1995. (American Casebook
Series)
This
casebook concentrates on the skills
listed in the ABA's MacCrate
Report, including problem
solving. It considers the many roles
of the lawyer, among which are wise
counselor, problem solver and
technician.
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KRONMAN,
Anthony T. Lost Lawyer: Failing
Ideals of the Legal Profession.
Cambridge, MA: Belknap Press of
Harvard University Press,
1993.
An
intriguing look at what this lawyer
feels is the lost ideal of the
lawyer: the lawyer-statesman who was
a problem solver. The lawyer
counseled clients, helped them avoid
disputes, and facilitated resolution
of disputes if
necessary.
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LOPEZ,
Gerald P. Rebellious Lawyering: One
Chicano's Vision of Progressive Law
Practice. Boulder, CO: Westview
Press, 1992. (New Perspectives on
Law, Culture, and
Society)
Lopez
describes, primarily through
story-telling, the type of activist
lawyering which he believes will
bring about fundamental changes for
those who are disadvantaged in our
society. Much of his discussion
involves creative problem
solving.
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MAUGHAN,
Caroline and Julian WEBB. Lawyering
Skills and the Legal Process.
London, Eng.: Butterworths,
1995.
This
work is based on the authors'
teaching of second and third year
LL.B. students at the University of
the West of England. Two
particularly applicable chapters
are: Chapter 3, Problem-Solving:
The Practical Dimension; and
Chapter 4, Problem-Solving: The
Business and Ethical
Dimensions.
MCCORMACK,
Mark H. What I Should Have Learned
at Yale Law School: The Terrible
Truth About Lawyers. New York, NY:
Avon Books, 1988.
McCormack,
who is also the author of What
They Don't Teach You at Harvard
Business School, looks at the
practical side of lawyering. While
not specifically labeled problem
solving, the approach advocated is
creative problem solving in the
business-client
relationship.
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NATHANSON, Stephen. What Lawyers Do:
A Problem-Solving Approach to Legal
Practice. London, Eng.: Sweet and
Maxwell, 1997.
What
Lawyers Do is British in focus,
but it is easy to generalize the
approach to other legal education
systems. There is some emphasis on
two aspects of problem solving:
playing-out conflict and
conflict-blocking. The author
provides a problem solving theory
that can be applied to the learning
of law, to the practice of law, and
to the teaching of
law.
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ROMBAUER,
Marjorie Dick. Legal Problem
Solving: Analysis, Research and
Writing. 5th ed. St.
Paul, MN: West Publishing Co.,
1991.
This
is a classic law school text, with
an emphasis on analysis, research,
and writing as methods of problem
solving.
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WEBB,
Julian and Caroline MAUGHAN, eds.
Teaching Lawyers' Skills. London,
Eng.: Butterworths, 1996.
Teaching
Lawyers' Skills is British in
orientation, but the principles are
of general application. Chapter 7,
Problem-based Learning in Legal
Education, by David A.
Cruickshank, includes a discussion
of problem solving.
WIGGINS,
Charles B. and L. Randolph LOWRY,
eds. Negotiation and Settlement
Advocacy: A Book of Readings. St.
Paul, MN: West, 1997.
While
focusing on negotiation and
settlement, several articles
included in this work address
problem solving from various
angles.
WINSOR,
Keith. "Applying Problem-Based
Learning to Practical Legal
Training." The Challenge
of Problem
Based-Learning.
2nd ed. Eds. David Boud
and Grahame I. Feletti. New York:
Kogan Page, 1997.
224-232.
This
short article details the use of
problem-based learning in practical
legal training at the College of
Law, New South
Wales.
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III.
Problem Solving in the Legal
Profession: Articles
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AMSTERDAM,
Anthony G. Clinical Legal
Education—A 21st
Century Perspective, 34 J. Legal Educ.
612 (1984).
Amsterdam
reflects on a new type of law school
curriculum centered on problem
solving. He also explores the
conceptual skills involved in
problem solving in legal
practice.
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BARTON,
Thomas D. Creative Problem Solving:
Purpose, Meaning, and Values, 34 Cal.
W. L. Rev. 273 (1998).
The
author believes that "creative
problem solving . . . attempts to
broaden the inquiry concerning legal
problems and to acknowledge a
broader range of skills for their
effective resolution." (p. 296) In
order to lay a strong conceptual
foundation for legal problem solving
he asks the questions: "What does
creative problem solving mean in a
legal context? Why is it needed?
What goals should animate our
efforts? Finally, importantly, what
values are implicated in its
advancement?" (p. 273)
BINTLIFF,
Barbara. From Creativity to
Computerese: Thinking Like a Lawyer in
the Computer Age, 88 L. Library J. 338
(1996).
The
author discusses the profound
influence computer-assisted legal
research has had upon the legal
approach to problem
solving.
BLASI,
Gary L. What Lawyers Know: Lawyering
Expertise, Cognitive Science and the
Functions of Theory, 45 J. Legal Educ.
313 (1995).
"What
Lawyers Know" provides a very
detailed look at various theories of
problem solving and their
application to lawyering. Blasi
contends law schools have focused on
gaining teaching expertise in
solving doctrinal problems, but have
neglected problem solving in other
legal areas. He believes advances in
cognitive science provide the tools
to consider empirically the
relationship between problem solving
theory and lawyering practice. He
concludes that the "core activity of
lawyers entails problem solving and
the making of decisions" (p. 318)
and presents some implications for
the law school
curriculum.
BREST,
Paul and Linda KRIEGER. On Teaching
Professional Judgment, 69 Wash. L. Rev.
527 (1994).
Brest
and Krieger emphasize teaching law
students to solve problems. "At
their best, lawyers serve as
society's general problem solvers,
skilled in avoiding as well as
resolving disputes and in
facilitating public and private
ordering." (p. 529)
BREST,
Paul. The Responsibility of Law
Schools: Educating Lawyers as
Counselors and Problem Solvers. 58, no.
3-4 Law & Contemp. Probs. 5
(1995).
In
this essay, the author proposes
complementing the traditional
case-based law school curriculum
with a series of advanced courses
integrating the skills of counseling
and problem solving with insights
from other disciplines. "The
complementary curriculum is designed
to prepare students for practice in
a world that their forebears could
scarcely have imagined." (p.
16)
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CARRINGTON,
Paul D. A Tale of Two Lawyers, 91 Nw.
U.L. Rev. 615 (1997).
Carrington
contrasts Abraham Lincoln and
Charles Sumner as lawyers, stressing
Lincoln's success as a lawyer.
"[Lincoln] was a problem
solver . . . [H]e created
peace where there had been no
peace." In contrast, "Sumner did not
solve problems, he made them." (p.
627)
CAVERS,
David F. In Advocacy of the Problem
Method, 43 Columbia L. Rev. 449
(1943).
Contrasting
the casebook study of cases
(studying previous solutions to
problems) with the problem method
(how to solve problems), the author
concludes there is a need to include
the problem method in law school
education. He then discusses means
of implementing this
method.
COOPER,
James M. Towards a New Architecture:
Creative Problem Solving and the
Evolution of Law, 34 Cal. W. L. Rev.
297 (1998).
Cooper
envisions law as social
architecture, structuring his
analysis around the ideas of Le
Corbusier, the 20th century
architect and urban planner. His
article is an attempt to "introduce
the concept of Creative Problem
Solving into the lexicon of
jurisprudence." (p. 302)
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D'AMATO,
Anthony. The Decline and Fall of Law
Teaching in the Age of Student
Consumerism, 37 J. Legal Educ. 461
(1987).
Critical
of the state of law teaching,
D'Amato applies theories from Marvin
Mensky's The Society of the
Mind (New York, 1986) to law
school teaching. Mensky believes
intelligence has a core meaning: the
ability to solve problems. This
ability needs to be taught. As a
person uses his/her skill in problem
solving, the ability is strengthened
for further use. Previously solved
problems are used to shift and
compare possible solutions to the
present problem. D'Amato believes
law school teaching must support
this skill development.
DISARE,
Thomas. A Lawyer's Education, 7 Md. J.
Contemp. Legal Issues 359
(1996).
Disare
states that problem solving used to
be taught to new attorneys in the
firms after hire—a "finishing
off" of their formal legal
education. However, this is no
longer true. He proposes changes in
legal education which would "force
students to begin with a focus on
the client's true goal and then to
suggest creative solutions to client
problems." (p. 373)
DZIENKOWSKI,
John S. Lawyering in a Hybrid Adversary
System, 38 Wm. & Mary L. Rev. 45
(1996).
Dzienkowski
comments on Carrie Menkel-Meadow's,
The Trouble with the Adversary
System in a Postmodern,
Multicultural World (38 Wm.
& Mary L. Rev. 5 (1996)). While
applauding her attempt to present a
new model of justice in the
post-modern, multicultural world, he
is "less optimistic than
[she] that such changes can
be made efficiently." (p.
61)
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GARTH,
Bryant G. and Joanne MARTIN. Law
Schools and the Construction of
Competence, 43 J. Legal Educ. 469
(1993).
Garth
and Martin's study updates Frances
Zemans and Victor G. Rosenblum's
work in the late 1970s surveying the
Chicago Bar's opinions on what makes
a competent legal practitioner. The
study finds Chicago hiring partners,
when ranking factors in promotion to
partnership, rank the ability to
diagnose and plan solutions for
legal problems second only to the
ability to obtain and keep
clients.
GRISWOLD,
Erwin N. Law Schools and Human
Relations, Wash. U. L.Q. 217
(1955).
The
author discusses four problems in
legal education. The third problem
"concerns what might be called the
forgotten areas of law practice, the
problems which do not appear in
upper court decisions'human
problems, presented and solved in
the lawyer's office." (p.
221)
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HANDLEY,
Robin & Damien CONSIDINE.
Introducing a Client-Centered Focus
into the Law School Curriculum, 7 Legal
Educ. Rev. 193 (1996).
While
focusing on Australian legal
education, the authors' approach is
of general interest. The problem
method of learning (hypothetical
fact situations leading to analysis
of the issues involved) is not the
same as problem-based learning,
which does not expand the issues to
other legal and non-legal components
of the client's problem. The problem
method anticipates the need to
change focus to the context of the
problem and the client's situation.
The authors stress that the lawyer
does not always own the answers or
the techniques to solve the
problem—other professionals
might. They discuss the development
of a client-centered
curriculum.
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JOHNSON,
Andrea L. Teaching Creative Problem
Solving and Applied Reasoning Skills: A
Modular Approach, 34 Cal. W. L. Rev.
389 (1998).
Johnson
asserts the new dynamics of business
have rendered traditional law school
teaching methods "outmoded or
ineffective. These methods are often
ineffective because they are passive
and linear, and fail to teach
students how to formulate practical
solutions and alternatives to
resolving disputes, or effecting a
client's interests." (p. 389) She
suggests a new paradigm which
integrates creative problem solving
into substantive courses, using a
modular approach.
JORDAN,
Michael. Law Teaching and the
Educational Continuum, 5 S. Cal.
Interdisciplinary. L.J. 41
(1996).
Thinking
like a lawyer is a relative term;
the type of problem solving skills
needed may vary from setting to
setting. Intelligence is the ability
"to solve problems and produce
things that are valued in a
particular cultural setting." (p.
52)
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KEEVA,
Steven. Opening the Mind's Eye, 82
A.B.A. J. 48 (June 1996).
Opening
the Mind's Eye is a short piece,
with very practical ideas on the
necessity of creative problem
solving in the practice of
law.
KELSO,
Charles D. In Quest of a Theory for
Lawyering: Some Hypotheses and a
Tribute to Dean Soia Mentschikoff, 29
U. Miami L. Rev. 159 (1975).
Kelso
writes on the development of lawyer
competencies—basic to which is
problem solving. He includes a
description of Professor
Mentschikoff's skill in teaching
strategy skills for reaching lawyer
decisions. The article was written
in response to the Law School
Admission Council's desire to study
career performance
criteria.
KERPER,
Janeen. Creative Problem Solving vs.
The Case Method: A Marvelous Adventure
in Which Winnie-the-Pooh Meets Mrs.
Palsgraf, 34 Cal. W. L. Rev. 351
(1998).
The
author contends that "compared to
more sophisticated models of problem
solving, case analysis is a blunt
instrument." (p. 352) She critiques
the case method, contrasting it with
the techniques of creative problem
solving, using Palsgraf as a
model.
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LANDMAN,
J.H. The Problem Method of Studying
Law, 5 J. Legal Educ. 500
(1953).
The
"problem method . . . approximates
the thinking of the practising
lawyer when confronted with a new
problem." (p. 505) Landman would
apply the scientific process of
thinking to the study of law
(problem method) instead of the case
method (casebooks). The scientific
process includes four steps: (1)
realize a problem; (2) observe,
experiment, analyze and classify
data; (3) adopt a tentative
hypothesis as a solution, using
experience and imagination; and (4)
by deduction and induction, reject
or verify the
hypothesis.
LASER,
Gary S. Educating for Professional
Competence in the Twenty-First Century:
Educational Reform at Chicago-Kent
College of Law, 68 Chi..-Kent L. Rev.
243 (1992).
More
than just describing legal education
at Chicago-Kent, the author reflects
on the art of problem solving in a
technical education setting. There
is a lengthy discussion of Sch` n's
Reflective Practitioner. "In
law practice, most problems lie in
the indeterminate environment, where
use of the art of problem solving is
essential." (p. 253)
L"PEZ,
Gerald P. Lay Lawyering. 32 UCLA L.
Rev. 1 (1984).
LÛpez
asserts that lawyering means problem
solving, which involves using
persuasion. The lawyer persuades by
manipulating "stock stories" which
help individuals interpret the
world. He uses such a "story" to
show how the process
works.
L"PEZ,
Gerald P. Training Future Lawyers to
Work with the Politically and Socially
Subordinated: Anti-Generic Legal
Education, 91 W. Va. L. Rev. 305
(1988).
LÛpez
sees legal education as a "stubborn
underachiever" (p. 342) with a
generic vision of the world. This
mind-set needs to be challenged if
law students are to be trained to
solve the problems of particular
people.
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MACLEOD,
Gordon A. Creative
Problem-Solving—for Lawyers?!, 16
J. Legal Educ. 198 (1963).
"A
lawyer might best be described as a
professional problem-solver." (p.
198) The author describes an early
course in creative problem solving
offered by the Creative Education
Foundation at the University of
Buffalo Law School in
1962.
MACNAUGHTON,
Ann L. Cross-cultural Conflict
Resolution: Finding Common Ground in
Disputes Involving Value Conflicts, 33
Willamette L. Rev. 747
(1997).
This
essay on "the impact of values
conflicts on problem-solving and
collaborative dispute resolution
paradigms" (p. 749) includes a brief
discussion of conflict resolution
theory, followed by an analysis of
the challenges presented in value
conflicts. It offers some
suggestions on structuring a
collaborative problem solving
process when values
collide.
MENKEL-MEADOW,
Carrie. The Legacy of Clinical
Education: Theories About Lawyering, 29
Clev. St. L. Rev. 555
(1980).
While
not specifically mentioning problem
solving, Menkel-Meadows discusses
the role of the lawyer, including
the micro-theory of the role of the
lawyer: the lawyer as "interviewer,
planner, investigator, negotiator,
examiner or interrogator, advocate,
debater and counselor." (p.
559)
MENKEL-MEADOW,
Carrie. Narrowing the Gap by Narrowing
the Field: What's Missing from the
MacCrate Report—Of Skills, Legal
Science and Being a Human Being, 69
Wash. L. Rev. 593 (1994).
Menkel-Meadow
criticizes the MacCrate Report
as espousing "a kind of
‘technocratic
problem-solver’" as opposed to
a human problem solver who exercises
practical wisdom and judgment, using
intuition, feeling and sympathy, as
well as the reason and science of
lawyering.
MENKEL-MEADOW,
Carrie. To Solve Problems, Not Make
Them: Integrating ADR in the Law School
Curriculum, 46 SMU L. Rev. 1995
(1993).
One
component of ADR is problem solving.
"Well educated lawyers should be
taught to solve problems, facilitate
relationships and transactions and
negotiate legislation and diplomatic
arrangements, not just to litigate
disputes." (p. 1995)
MENKEL-MEADOW,
Carrie. Toward Another View of Legal
Negotiation: The Structure of Problem
Solving, 31 UCLA L. Rev. 754
(1984).
The
author applies a problem solving
model to a negotiation rather than a
win/lose model, with the lawyer's
role to satisfy the needs of both
parties rather than maximize
individual gain.
MENKEL-MEADOW,
Carrie. The Trouble with the Adversary
System in a Postmodern, Multicultural
World, 38 Wm. & Mary L. Rev. 5
(1996).
Menkel-Meadow
is critical of the binary nature of
the adversary system because it does
not adequately address complex
problems which require "complex and
multifaceted solutions." (p.
7)
MORGAN,
Thomas D. Economic Reality Facing
21st Century Lawyers, 69
Wash. L. Rev. 625 (1994).
In
this short article on the potential
demand for lawyers, the author
concludes "the most fundamental
skill of a twenty-first century
lawyer is likely to be understanding
a client's business or family
problem. Skills of lawyering will
more and more become skills of
problem-solving . . . ." (p.
634)
MORTON,
Linda. Teaching Creative Problem
Solving: A Paradigmatic Approach, 34
Cal. W. L. Rev. 375 (1998).
Morton
describes her "use of a visual
paradigm, or model, to teach
creative problem solving in the law
school curriculum." (p. 375) After
defining the term "creative problem
solving," she justifies its use in
law school education, describes her
use of the model in clinical
classes, and suggests how it might
be used in traditional
courses.
MOSKOVITZ,
Myron. Beyond the Case Method: It's
Time to Teach with Problems, 42 J.
Legal Educ. 241 (1992).
The
author believes the problem method
is the best method to train
professionals, although not the only
method. "If our job is to train
students to ‘think like
lawyers’ then we should train
them to solve [the problems
presented by clients] because
that is the kind of thinking that
lawyers must actually do." (p. 245)
He concludes that "problem-solving
is the single intellectual skill on
which all law practice is based."
(p. 245)
MOUST,
Jos G. and Herman J. NUY. Preparing
Teachers for a Problem-Based,
Student-Centered Law Course, 5 Prof.
Legal Educ. 16 (1987).
The
entire curriculum at the University
of Limburg Faculty of Law
(Netherlands) is oriented towards
problems and their solutions. The
curriculum stresses continuous
training in problem solving as
students learn substantive law. The
author discusses the role of teacher
in this environment.
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NATHANSON,
Stephen. Changing Culture to Teach
Problem-Solving Skills, 14 J. Prof. L.
Educ. 143 (1996).
Nathanson
discusses how to educate students to
think deeply and to solve complex
problems, with an emphasis on
instructional design.
NATHANSON,
Stephen. Creating Problems for Law
Students: The Key to Teaching Legal
Problem Solving? 10 J. Prof. Legal
Educ. 1 (1992).
Recognizing
that designing a law school
curriculum to teach problem solving
is daunting, Nathanson details a
two-pronged strategy to accomplish
the task. The first prong consists
of following existing principles of
curriculum design. The second is to
invest significant resources in the
design of good
problems.
NATHANSON,
Stephen. The Culture of Design, 3 Int'l
J. Legal Prof. 301 (1996).
Nathanson
describes the need to inculcate a
"culture of design" in order to
facilitate a change to problem-based
learning, which requires new
curricular design.
NATHANSON,
Stephen. Designing Problems to Teach
Legal Problem Solving, 34 Cal. W. L.
Rev. 325 (1998).
"Problems
form the basis of learning
activities and assessments found in
a skills-based or problem-centered
curriculum." (p. 326) Nathanson
emphasizes the need to design
good problems because such
problems are essential to the
success of the problem-centered
curriculum. He then discusses the
principles for making good
problems.
NATHANSON,
Stephen. Developing Legal
Problem-Solving Skills, 44 J. Legal
Educ. 215 (1994).
This
detailed work on curricular design
recognizes that the instructional
methodology in legal education will
need to synthesize general
problem-solving skills and
context-specific
knowledge.
NATHANSON,
Stephen. Problem-Solving in
Professional Legal Education, 7 J.
Prof. Legal Educ. 121
(1989).
Focusing
on the work being done by
professional legal education
institutes in Australia to integrate
the "teaching of legal skills with
legal transactions in a
problem-solving framework," (p. 121)
the author presents problem solving
as a unifying theme for professional
legal education. He sees problem
solving as a five-step process: (1)
problem and goal identification; (2)
fact investigation; (3) legal issue
identification and assessment; (4)
option identification and decision
making; and (5) planning and
implementation.
NATHANSON,
Stephen. The Role of Problem Solving in
Legal Education, 39 J. Legal Educ. 167
(1989).
This
is a short article on problem
solving as a generic skill that has
been overlooked in legal education,
even though it is "the essence of
what lawyers are supposed to do in
their practice." (p. 168) Nathanson
addresses the question of whether a
theory of legal problem solving can
be developed and, if it can, what
role problem solving should play in
legal education.
NIVALA,
John F. The Architecture of a Lawyer's
Operation: Learning from Frank Lloyd
Wright, 20 J. Legal Prof. 99
(1995/96).
Lawyering
is an art; legal educators guide
students to work toward that art by
letting them deal with real-life
problems. The architect Frank Lloyd
Wright saw each client's needs as a
problem to be solved. Nivala applies
Wright's philosophy to the role of
the lawyer, particularly in relation
to the art of legal
writing.
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OGDEN,
Gregory L. Problem Method in Legal
Education, 34 J. Legal Educ., 654
(1984).
Ogden
encourages greater use of problems
by law teachers. He defines the
problem method and examines the
objectives of legal education,
describing how the method meets
those objectives. He also discusses
the advantages and disadvantages of
the method and its use in specific
courses.
O'LEARY,
Kimberly E. Using "Difference Analysis"
to Teach Problem-Solving, 4 Clinical L.
Rev. 65 (1997).
Recognizing
the need for the legal profession to
take into account the importance of
perspective in understanding the
law, the author discusses the ways a
clinical course can integrate
"difference analysis" into the
process of problem solving for a
client. "Difference analysis" is
defined as "the systematic
exploration of diverse perspectives
as a means of generating options to
assist a client in the solving of a
legal problem." (p. 66, ft.
5)
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PODGERS,
James. Grassroot Lessons, 82 A.B.A. J.
68 (Feb. 1997).
This
essay describes former-President
Gerald Ford's successes as a lawyer.
"Solving peoples' problems was at
the center of whatever he did." (p.
69)
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RE,
Edward D. The Causes of Popular
Dissatisfaction with the Legal
Profession, 68 St. John's L. Rev. 85
(1994).
One
suggestion presented by the author,
to counter the current
dissatisfaction, is a focus on the
lawyer as a counselor who uses
alternatives other than litigation
to solve legal problems.
RE,
Edward D. The Lawyer as Counselor and
the Prevention of Litigation, 31 Cath.
U. L. Rev. 685 (1982).
Re's
lecture highlights the lawyer's role
as a counselor who can help a client
avoid controversy and resolve a
problem without litigation. He
stresses the counseling is not just
for legal consequences, but to
"inform the client of the practical
and social consequences of the act."
(p. 693)
RE,
Edward D. The Role of the Lawyer in
Modern Society, 30 S.D. L. Rev. 501
(1985).
Re
discusses the role of the lawyer as
a counselor who must use problem
solving techniques other than
litigation.
RENO,
Janet. Speech: The Honorable Janet
Reno, Attorney General of the United
States, 31 New Eng. L. Rev. 159
(1996).
Reno
speaks of a specialty called
"community advocacy" which would
train lawyers and advocates in
problem solving and conflict
resolution.
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SAUNDERS,
Kurt M. and Linda LEVINE. Learning to
Think Like a Lawyer, 29 U.S.F. L. Rev.
121 (1994).
Learning
to think like a lawyer involves
mastery of problem solving
methods.
SCIESZINSKI,
Annette J. Return of the
Problem-Solvers: The Profession Needs
to Focus on Helping People, Not Just
Fighting Battles, 81 A.B.A. J. 119
(June 1995).
This
short perspective piece by a young
Iowa lawyer states that "for the
student, law school training may
tend to glamorize litigation and
de-emphasize problem-solving." (p.
119) Scieszinski goes on to state
that "lawyers should offer their
professionalism and problem-solving
skills to clients rather than
marketing their courtroom prowess."
p. 119.
SHEPPARD,
Harrison. American Principles & the
Evolving Ethos of American Legal
Practice, 28 Loy. U. Chi. L.J. 237
(1996).
Sheppard
presents three recommendations to
remedy what he believes are the
ethical misdirections the practice
of law has taken in the last three
decades. First, senior partners in
law firms and senior executives in
the public service must espouse an
ethos of problem solving and
non-adversarial conflict resolution
within their firms and agencies.
Second, the organized bar must
require skills of negotiation and
problem solving. Third, legal
education must produce "skilled
peacemakers" (p. 256) and train
lawyers using a problem solving
model.
SMITH,
Rhona K. M. The International Impact of
Creative Problem Solving: Resolving the
Plight of Indigenous Peoples, 34 Cal.
W. L. Rev. 411 (1998).
Because
traditional legal approaches have
proved unsatisfactory, Smith applies
creative problem solving techniques
when addressing the problems
encountered by indigenous
peoples.
SPIEGELMAN,
Paul J. Integrating Doctrine, Theory,
and Practice in the Law School
Curriculum: The Logic of Jake's Ladder
in the Context of Amy's Web, 38 J.
Legal Educ. 243 (1988).
Spiegelman
applies Carol Gilligan's work on
moral development (In a Different
Voice: Psychological Theory and
Development (Cambridge, 1982))
to legal education with the aim of
increasing student awareness of
alternative methods of perceiving
and solving problems.
STERNLIGHT,
Jean R. Symbiotic Legal Theory and
Legal Practice: Advocating a Common
Sense Jurisprudence of Law and
Practical Applications, 50 U. Miami L.
Rev. 707 (1996).
Law
schools need to foster an education
after which "law students will go on
to become legal practitioners who
can use abstract theories to solve
practical problems." (p. 767) The
author recognizes the need to
develop a "jurisprudence of
applications," a complimentary
relationship between abstract theory
of the law and the practice of law.
Legal theorists can make their work
more powerful by focusing on real
world problems and their solutions,
while practitioners should "look to
academia for new and creative
solutions to real world legal
problems." (p. 714)
STUCKEY,
Roy T. Education for the Practice of
Law: The Times They Are A-Changin', 75
Neb. L. Rev. 648 (1996).
"My
thesis is that the primary objective
of law schools should be to teach
students to be competent
problem-solvers. A lawyer's core
function is problem-solving." (p.
669)
STURM,
Susan P. From Gladiators to
Problem-Solvers: Connecting
Conversations About Women, the Academy,
and the Legal Profession, 4 Duke J.
Gender L. & Pol'y 119
(1997).
Women,
the legal academy, and the legal
profession all have expressed
concern about the sole view of the
lawyer as gladiator—fighting to
win while someone else loses.
"[The article] explores the
outlines of a problem-solving
orientation to lawyering and legal
education that has the potential to
address and create a dynamic between
the concerns of women and the need
to reclaim the soul of the legal
profession." (p. 122) Sturm suggests
a shift from gladiator to problem
solver may brighten the fate of the
legal profession, and the fate of
women and other under-represented
groups in the profession. She also
describes a model for the lawyer as
problem solver.
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TZANNES,
Maria. Problem Based Learning in Legal
Education: Intentionally Overlooked or
Merely Misunderstood, 31 Law Teacher
180 (1997).
Legal
education, differing from medicine
and architecture, has not
overwhelmingly embraced
problem-based learning.
Problem-based learning is a
sub-skill of problem solving, where
the student is given a real-life
problem (not necessarily a real-life
client) and the responsibility to
solve the problem. For legal
education this means not just
curricular change, but a change in
the basic work of the teacher.
Tzannes identifies obstacles to
problem-based learning, some of
which are centered in the changing
role of the teacher. The article is
Australian in focus, but of general
application.
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WHINERY,
Leo H. The Problem Methods in Legal
Education, 58 W. Va L. Rev. 144
(1955).
Whinery
uses the concept of
"problematicism": the lawyer's duty
to solve legal problems through
counseling and advocacy. "The law
school should provide the student
with an educational program designed
to enable him to evaluate legal
problems in light of
applicable legal principles and
relevant extra-legal
doctrine." (p. 146) The
student's focus should be on
analysis of problems, with legal and
non-legal ramifications, and
reaching solutions. The author
reflects on a number of problem
oriented methods, including a
detailed analysis of the strengths
and drawbacks of using
hypotheticals.
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ZWIER,
Paul J. and Ann B. HAMRIC. The Ethics
of Care and Reimagining the
Lawyer/Client Relationship, 22 J.
Contemp. L. 383 (1996).
Zwier
and Hamric present an "ethic of
care" model for the relationship
between lawyer and client, which
takes into account the human side of
the clients problem. They believe
such an approach "produces better,
more creative, and more tailored
solutions to the parties' problems."
(p. 388)
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