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LAW school classes regularly prove Santayana's aphorism. Although nearly every law teacher desires to keep discussion focused and forward-moving, there are more than a few moments of thundering silence experienced in the classroom. Most of us adjust to this inevitability by positing some pedagogical virtue to still air and contenting ourselves with the knowledge that conversation-stopping “whys?” are usually delivered by us as teachers rather than the students. Perhaps we are underappreciative of the value discomfitting silence has, but we generally prefer that the conversation continue, that we miss the opportunity to feel simultaneously smug and uncomfortable, and that students be both more reflective and expansive in class.

In our view, much of the “conversation-stopping” occurs because students are insufficiently grounded in the background knowledge necessary to carry a discussion of a case, statute, or problem beyond the four corners of the text under review. This problem is different from the normal absence of legal information that necessarily befalls law students. The latter problem is to be expected. But less expected, or hoped for, is the typically inadequate briefing on other information useful for studying the law. At the outset of legal education, cases and concepts often strike students as having an air of inevitability that tends to stifle or suppress critical thinking. Judges, after all, normally portray their conclusions as inescapable. Because of this, the proverbially well-placed “why?”--not directly answerable by resorting to the text of the appellate opinion--tends to silence the class. Even in advanced classes, silence may reverberate if the students have not mastered the resources from which diverse views can be mined.

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29 Toledo L. Rev. 59 (1998).