MENTAL MODELS IN LAW FROM THE INSIDE OUT
Gary Blasi
University of California at Los Angeles

1. Introduction to Mental Models
   1. In some theories of human cognition, "mental models" lie at the core of how people understand and interact with the world.
   2. Mental models are closely related to, but not co-extensive with, other important representational forms, including schemas, scripts, prototypes, narratives, images, "idealized cognitive models," theories, and so on.
   3. In many cases, mental models operate to "frame" our perceptions of the world, such that we have difficulty processing information that is incoherent with the frame.
   4. In trivial cases, we may "build" our mental models from scratch, but most often we import them from the general culture, either directly or through analogical processes that are reasonably well understood.
   5. One of the things that separates novices (including law students) from experts (experienced lawyers, law professors) is the complexity and representational "accuracy" of their mental models.
   6. One of the things that separates some experts (e.g., experienced lawyers) from other experts (e.g., some law professors) is a matter of their "stance" or "perspective" vis-à-vis mental models. For shorthand, I will call these the "inside" view and the "outside" view, recognizing that this representation is itself a somewhat inaccurate model of modeling itself.
2. Mental models and learning law and lawyering.
   1. There are several processes going on in law schools that can be re-described in terms of mental models:
      1. Students are acquiring basic mental models as prototypical representations of significance in law: e.g., litigation is bipolar and resolved by the application of rules to facts.
      2. Teachers are providing architectures or suggesting architectural styles for mental models: e.g., negotiation is a game.
   2. The most common "stance" of both students and teacher in the traditional classroom is "outside and above" the legal objects, institutions, processes being studied and modeled. Such a stance is essential to critique, and is also similar to the stance that must be adopted institutionally by judges and their clerks.
   3. The most common "stance" of practicing lawyers in all the realms in which they operate is from "inside" the legal institutions and processes being modeled in the course of rendering them comprehensible.
   4. To the degree that we want to inculcate "problem-solving" skills in our students, we must recognize the fundamental differences between problems that can only be approached from "outside and above" [e.g., the most efficient products liability regime] and problems that must be approached from "inside" in order to solve them [e.g., persuading a trial judge that X is a defective product].
   5. There is little evidence that problem-solving can be learned in ways that do not involve both practice in problem-solving episodes and the development and elaboration of theories and models constructed either through induction or with assistance through presentation of analogies.
3. Implications for Law School Pedagogy
   1. Doctrinal problem-solving (extracting rules from cases; reconciling statutes) can be taught by traditional Langdellian means, which adopt the "outside and above" stance.
   2. Legal policy problem-solving (including critical accounts of law) can be taught by means common in law school classrooms (e.g., efficiency arguments based on economic models or political arguments based on class models of social and legal power), which adopt the same "outside and above" stance, but use different levels of discourse.
   3. Problem solving in lawyering (e.g., which arguments are likely to work best with which audiences) can probably only be learned and taught by adopting an "inside" stance toward the problems being modeled. This is the inevitable consequence of pedagogical methods in clinical legal education ("live client" or simulated), albeit it is not clear how often teachers consciously facilitate the acquisition of more useful mental models.
   4. To the degree that we are training advocates and not merely legal critics and judicial clerks, we might more commonly adopt the "inside" perspective in parts of our doctrinal courses. This is, in fact, the principal cognitive shift in problem-based teaching that is now widely adopted in the training of MBA's, physicians, architects, and other professionals.
   5. There is no reason to think that we will follow the medical schools in dramatically shifting our pedagogy in these directions so long as : (1) the elite law schools provide the dominant model of instruction; and (2) the large law firms that constitute the principal market for graduates of elite law schools are satisfied with new associates capable only of doctrinal puzzle-solving.
   6. Other schools, and faculty within elite schools concerned with training graduates who cannot count on an extended period of mentorship, would do well to begin utilizing more problem-based methods of instruction across the curriculum. Problem-based methods also facilitate other desirable goals, such as including ethical considerations in courses across the curriculum.