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Sheehy, Benedict; Diaz-Granados, Juan; Fitzgerald, Tomas --- "What To Teach When Teaching Law: The Categories, Rights, Duties And Test ('CRDT') Framework" [2022] CanLawRw 3; (2022) 19(1) Canberra Law Review 36

What To Teach When Teaching Law:

The Categories, Rights, Duties And Test (‘CRDT’) Framework

Ben Sheehy, Juan Diaz-Granados and Tomas Fitzgerald[*]

This article provides a framework for law academics to teach law to all levels of students. It develops a ‘Categories, Rights, Duties and Test’ (CRDT) conceptual framework which provides a structure for thinking about teaching and about how law teaching can be developed in a more systematic fashion. The article introduces the CRDT framework, a framework which focuses attention on the distinctly legal concepts that provide the core building blocks for any legal system. Use of the framework also has the advantage that it helps students develop the core analytical skills necessary for legal practitioners. The distinctions created in the CRDT framework facilitates student learning as the students are able to transfer the same conceptual framework between different subjects. Further, we explain how this approach supports consideration of positive, professional, and policy aspects of law. Having repeated use of the CRDT framework strengthens students’ grasp of law not only as a practice and as an intellectual activity but the contribution law makes to policy. Finally, it facilitates sharper thinking about law and areas of law as it helps to distinguish the conceptual core of law as a discipline from the substantive content of a specific area of law. It moves the ‘what to teach’ beyond the doctrine-skills debate that has dominated the law academy for decades.


Whether coming to law as an academic, or as a law student, the study of law is markedly different from other disciplines in a variety of ways. Among other things, when one delves into the details of any area of law, one is presented with an array of apparently poorly organised rules and ideas, principles and theories all ensconced in great, centuries long debates. While a university education ought to include different intellectual traditions, each of the disciplines addresses their traditions differently. Indeed, even within the disciplines, including law, a variety of epistemologies and philosophies from empiricism, materialism and positivism through to postmodernism are important and utilised. The broad view of legal education properly includes what Webb describes as: ‘an education of humane breadth, grounded in the liberal arts, and with a strong philosophical footing ... [in which] students are enabled to learn about the values and principles which underpin the discipline of law.’[1] Such broad liberal arts objectives, however, while part of a traditional approach to legal education,[2] are difficult to advance today as not only are they in conflict with management strictures on academics,[3] but also for many lecturers whose degrees are professionally focused law degrees[4] and not steeped in a liberal arts tradition.

For the new-comer to law, however, the study of law looks a bit like a second-hand shop with weird little odds and ends, piled up in apparently random places that leaves one perplexed about what to do about the chaos.[5] Some law academics find a solution in the phrase advising teaching students to ‘think like a lawyer’. This phrase is often used as if it has a settled meaning. Perhaps the most that can be said about it is that it has to do with the ability to develop Socratic type arguments[6] or argue under the IRAC method.[7] As the scholar of disciplinary education, Donald notes, however, ‘the composition of legal education remains controversial ... [and] the path from profession to modern scholarly discipline has been erratic’.[8] At a fundamental level legal education is normative and political and, of course, these matters are controversial. Further, as Cownie observes ‘law teachers disagree about [legal education’s] objectives, the relevance of other disciplines to the study of law, its place relative to the legal professions and a host of other matters’.[9]

This disagreement is underpinned at a deeper level of disagreement between three broad groups of scholars who have different views as to what should be taught. One group, the positivists, are the doctrinal scholars who emphasise the teaching of positive law. Another group is composed of the professionally focused scholars who believe legal education should be focused on building skills preparing students for professional practice,.[10] Yet a third group wishes to focus on law in its social and ideological contexts—the law as policy scholars.[11] We refer to this broad tripartite grouping of scholars as ‘positivists’, ‘professional’ and ‘policy’. Given the range of distinct focuses and disagreement about underlying traditions, including of course, the groupings just identified, it is unsurprising therefore that many law teachers are confused and through their teaching consequently leave many law students befuddled by the questions: what to teach when teaching law? and for the student: what to focus on when learning law?

The foregoing is not to say that there has not been concerted thinking about teaching law at a curriculum level.[12] Journals dedicated to law teaching and education include: Journal of Legal Education, Legal Education Review, Journal of Commonwealth Law and Legal Education, Journal of Legal Studies Education, and Law Teacher and Legal Education Review. These fine journals provide articles in support of and against the different views. This research is supplemented by a host of articles on legal education in the generalist journals of the discipline.

To date, we lack an analytical framework for teaching and learning law broadly and across the curriculum, which is able to draw these disparate strands of scholarship and focal points together. As a result, each law academic develops his or her own approach. In his address on how law lecturers approach teaching, R E Megarry Q C. (as he then was) and President of the Law Teachers’ Association stated: ‘The material may be presented as from a pogo stick, hopping all over the place; or hobby horses may be pursued at inordinate lengths, leaving untouched vast intervening tracts of important law’.[13] Accordingly, it is obvious that the problem is not new and that many still struggle to approach the vast field that makes up the study of law.[14]

This article offers an approach to structuring one’s thinking about law, and in particular, its teaching and learning. It aims to answer what Cownie has described as the objective of legal education which ‘involves the ability to organise our knowledge of facts using theories’.[15] We introduce a ‘Categories, Rights, Duties and Test’ (CRDT) positive conceptual framework which is then used as a foundation for embellishment by analysis of the professional and policy dimensions of the positive rule. Our position is that the three—the positive, professional, and policy—are not mutually exclusive alternatives. Rather, that the foundation for both professional application and policy critique rests on a text, which provides the foundation of an analysis of positive law followed by professional application and policy critiques. We illustrate that understanding below.

Accordingly, students are to begin with the text, developing a clear understanding of the substantive rule and its working. Unlike formalist understandings of law, however, this understanding is not the end point – nor does it present legal conclusions as correct answers, arrived at by narrow ‘scientific’ analysis of the case material. Rather, as will be demonstrated below, it provides the starting point for understanding the professional significance and critical discussion of the policy implications of the rule. Thus, CRDT is not mere re-packaged positivism: it is a critical realist approach to the understanding of the relationship of positive text and its implications for broader social relations.


Law as a discipline is about ordering and categorising relationships using principles and positive rules. Coming to this realisation provides some law lecturers with relief. It allows them to focus on something substantive and clear—the recitation of the minutiae of positive law—to put in front of students which can be readily assessed through tests and examinations. Even more helpful to the lecturer is that this minutiae is perceived as something ‘practical’ and not more ‘ivory tower’ nonsense. Expounding on positive law connects law teaching directly to the profession. As Webb observes:

academic law has tended to be defined primarily as (i) those areas of technical knowledge which the professions deem it appropriate for academic lawyers to teach and (ii) a rule-focused 'task' scholarship, monitoring what Schlegel calls 'the small changes in the law: a new development in an eminent domain, a new wrinkle in consideration', rather than a concern with the wider picture.’[16]

This narrow positivist focus, superficially aligned with professional concern is at odds, however, with the wider picture—a view that is more readily accessible to law students who are trying to place their new knowledge into familiar contexts. This learning need of the student—order and familiarity —-sits at the opposite end of the spectrum of much of the formalist approach to the case law method. This conflict leads to our question: What should the law lecturer teach?

Award winning scholar and teacher, Michael Whincup, wrote openly on the topic some fifty years ago. His observation still bears quotation in full today:

An American Professor of Law I once studied under scathingly rejected the ‘facile professorial synthesis’ style of teaching. He thought it was deceptive and unfair to students for a teacher to treat a difficult subject as if it were simple and straightforward. His own preference, not surprisingly, was for the case study method. This required a minute examination of perhaps two or three cases during each lecture period. So far as I was concerned the result was an unusual familiarity with a handful of individual instances, but only the haziest understanding of the overall rules of law-the old ‘wood for the trees’ problem.[17]

Whincup continued:

my own preference is for that same ‘facile synthesis’ which can be so roundly condemned. Experience confirms for me that what a student needs most in any subject is an initial grasp of basic principles. These are by definition generalizations. The teacher's first duty, if I am right, is to establish for himself what these principles are.[18]

The long hours of tedious reading of law lecturers as they work through the learned tomes and cryptically written judgments are not appealing and appear not to provide a reward equivalent to the task. Nevertheless, it is the price to be paid for developing the expertise required to lecture an area of law. Yet, one must question whether this is the only way, or indeed the best way to approach the problem for oneself or one’s students, generating still either the ‘haziest understanding of the overall rules’ or a set of abstract principles applicable exclusively to a single, substantive area of law.

We believe that the CRDT model we present below provides a readily transferable framework that helps make sense of legal materials in any area of law and that helps students develop a useful method to tackle unfamiliar judgements and pieces of legislation, to extract the positive content, make well-founded professional judgements and critique the policies embedded in law. Importantly, such an approach is compatible with a variety of assumptions about the appropriate place of professional and policy assessments in the practice of law. That is, the CRDT framework acknowledges the possibility of assessment of each of the stages, without committing its adopters to any particular style of assessment, or assessment per se. Hence, it might be used as a heuristic by both dogmatic originalists and transgressive progressives alike; as well as any other permutation of views about the desirable methods of undertaking the legal method. To understand the nature of the problem of teaching law and traditional answers which still inform teaching practice today, we turn to consider the powerful legacy of Langdell’s case method.


The distinction Whincup draws and dilemma he identifies above is not new. Rather, it echoes a historical debate about the proper method of legal teaching which has its origins in the dramatic reforms championed by the progenitor of the case method, Christopher Columbus Langdell. It is worth considering the origin of the Case Law method, its historical context and contemporaneous critiques.

A Langdell’s Case Method

Christopher Columbus Langdell was the Dean of Harvard Law School between 1870 and 1895. A reformer in legal education, Langdell championed approaches to the teaching of law we now take for granted. Among the reforms attributed to Langdell we find ‘tiered, multi-year curriculum with sequences of introductory courses followed by advanced courses’; written examinations; professional, full-time law teachers; the law library as a ‘scholarly resource for students and faculty’; blind marking of students; admission of students on academic merit and, most notably, the ‘case method’ of teaching.[19] In terms of pedagogy, Langdell has been described as ‘arguably the most influential teacher in the history of professional education in the United States’.[20]

Langdell's pedagogical method –– familiar to all contemporary law teachers and students[21]–– was revolutionary in his time. Kleefeld describes it as a ‘Langdellian revolution in which law is seen as a science, the library its laboratory, case study its method.’[22] Langdell opposed the mere repetition of scholarly opinions as to the state of the law. Instead, he focused on investigating the original sources, particularly the judgments of appellate courts. Students were instructed to examine particular cases with a view to distilling legal principles from the judgments themselves. Kimball illustrates the distinction in an extract from Batchelder, describing the distinction between the approaches taken by professors in examination of students:

The older professors called wholly for definitions and rules-- ‘When and by what statute were lands made alienable in England after the conquest?' ... Langdell presented actual problems for solution. ... If a debtor tended to a creditor the amount of the debt on the day it becomes due, and the creditor refuses to receive it, and afterwards sues the debtor, how should the latter defend himself?[23]

Underlying Langdell's approach to legal education was a particular legal theory. At the core of Langdell's critique of his contemporaries was that they were insufficiently scientific. Again, citing Batchelder, Kimball describes Langdell's approach in practice;

In Langdell's case method classroom, the small group of students who remained ‘were finding out how the law was made, and the reasons for it, and how it applied in actual practice. Langdell was working it out for himself with them. Every step of that reasoning was scrutinized and tested and re-examined til it proved right or wrong. The law was being taught as a science, not a rag-bag of rules and exceptions.’[24]

It is this commitment to a ‘scientific’ approach to the understanding of law, known as the formalist method, which has characterised Langdell's reception in legal theory. That characterisation has become intimately intertwined with those theorists who rejected Langdell's central claims – though not necessarily his teaching methods – the American Legal Realists.

B Early Criticism of Case-Law Method

Whincup’s critique of the case method essentially contends that it presents an incoherent account of law insofar as it substitutes minute detail for general principle. Yet the central theoretical basis of Langdell’s method was his belief that a formalist approach to the law was the best and most appropriate method for obtaining a coherent picture of law; that appellate cases formed the empirical observations from which coherent, scientific study of law can be undertaken. In this light, Whincup’s complaint is that insufficient attention is paid to establishing generalisable legal principles extracted from close analysis of appellate cases, and perhaps that lecturers themselves have gotten lost in the detail and failed to generate larger coherent frameworks.[25]

Another criticism of Langdell’s ideas about coherence and core legal theory, stems from competing ideas about the underlying structure of the legal system and fundamental disagreement about its objectives. American legal realist and supreme court justice, Oliver Wendell Holmes Jr, objected to Langdell’s theory arguing that integrity, not coherence, was central to legal decision making and that, as Freeman puts it,

integrity regards coherence as an ideal, a normative project. Thus, our best efforts may only achieve an approximation of coherence. This is especially true of law. Oliver Wendall Holmes pressed this point against C. C. Langdell and the formalists of his day.[26]

Curiously, Holmes’ thoroughgoing rejection of Langdell’s formalism was not a rejection of the case method of teaching. Kimball quotes Holmes,

With some misgivings, I plunged a class of beginners into a collection of cases, and we began to discuss them together in Mr. Langdell's method. The result was better than I even hoped it would be. After a week or two, when the first confusing novelty was over, I found that my class examined the questions proposed, with an accuracy of view which they never could have learned from text books, and which often exceeded that to be found in the text books. I at least, if no one else, gained a good deal from our daily encounters.[27]

One interesting note from this disclosure is Holmes’ own learning from the case-law method—something that needs to be seen against the background of his extensive understanding of law at that time. Holmes notes that he himself, a towering jurisprudential intellect, is still busy sorting, refining and building his own framework within the different areas of law. In other words, the detail of the areas and complexity involved are serious challenges to be surmounted before one can claim mastery. As educators in the twenty-first century teaching students who have come through very different educational traditions, traditions which have not included the training of close reading and careful exegesis of training in classical languages which were part of that earlier curriculum.[28] In the current context, can we reasonably expect our students to have the skills to do that reading and construction of conceptual frameworks?

Jerome Frank continued the broader realist tradition and extended Holmes’ objection to Langdell’s formalism. In particular, Frank objected to Langdell’s focus on appellate courts because he argued it distracted students from the more relevant consideration of the trial process. In a typically personal attack, Frank charged;

This philosophy of legal education was that of a man who cherished ‘inaccessible retirement.’ Inaccessibility, a nostalgia for the forgotten past, devotion to the hush and quiet of a library, exclusion from consideration of the all-too-human clashes of personalities in law office and courtroom, the building of a pseudo-scientific system based solely upon book-materials – of these Langdell compounded the Langdell method.[29]

Like Holmes, Frank contended that Langdell’s attempts to analyse legal determinations scientifically from the material of appellate court judgements fails to recognise the many professional, social and policy realities of how law as a social institution works. It ignores the requirement for deliberative choice by judges – an aspect of law which the realists consider to be at the heart of legal integrity. Frank’s advance on Holmes is to point out that the constructive, inherently normative choices which attend a ‘coherent’ legal system are made not only at the level of determination of law, but also with respect to determinations of facts. In other words, Frank argued that essentially, all legal determinations turn on the facts of particular cases, and that in every case it is the facts – and their particular interpretation – that fall to be determined. Hence, Frank countered Langdell’s disembodied scientific approach and ‘inaccessible’ ideal of legal pedagogy by advocacy for clinical legal education—a type of precursor to problem-based learning – which of necessity requires attention to determinations of facts.

Interestingly, despite his personal and professional objection to Langdell’s pedagogy, Frank did not suggest a complete rejection of the case method.[30] Rather, he initially recommended adapting that method to the broader normative assessments demanded by the presentation of a ‘coherent’ system of legal rules;

a new case system would be formulated which would carry the records of legal and governmental problems into the field of the other social arts –history, ethics, economics, politics, psychology and anthropology. Mere pre-legal courses in those fields, unconnected with the live material of present human action, have proved a failure; the integration needs to be achieved by following an actual institution through its social ramifications.[31]

This approach – the fusion of clinical legal education, case method and a broader social sciences analysis of legal institutions in context – was Frank’s attempt to build a system of education which took seriously the demands of integrity.

Harold Lasswell and Myres McDougal – contemporaries of Frank at Yale Law School and the progenitors of the New Haven School of Jurisprudence (NHSJ) – took up Frank’s call for an expanded role of policy sciences education in the law curriculum. Their advocacy for reform to legal education began with their 1943 paper Legal Education and Public Policy[32] and culminated in the development of their system of jurisprudence, most fully articulated in the 1992 text Jurisprudence for a Free Society.[33]

Lasswell and McDougal are realists in the sense of conceiving of law as decision, that is, a choice made by legal officials. They agree that choices are required; however, they view the realist project as essentially incomplete in that while the realists were quick to tear down the shibboleths of earlier legal theory – formalism, natural law theory and earlier legal idealism – they did not offer a systematic attempt to rebuild a jurisprudential approach to replace those they rejected. Lasswell and McDougal argued that this rebuilding and reformulating work was necessary and essential if we were to train lawyers to deal with the sorts of problems we expect them to solve. In the absence of a ‘configurative’ jurisprudence – to use the obscure jargon of the New Haven School – which guided approaches to the choices required, in policy assessment, doctrine and factual determinations, the critiques of the realists were merely preliminary to the real task of jurisprudence.

Frank singled out their efforts specifically;

I thoroughly agree with those who, like Professors Laswell and McDougal, urge that law schools should emphasize democratic values and ideals, and should stimulate future lawyers to think of themselves in the role of makers of policies which will implement such values.[34]

Frank’s assessment, however, was not whole-hearted. He noted;

I dissent when McDougal seems to say that ‘realism’ represents a ‘destructive’ phase of legal scholarship which must now be superseded by another phase which will ‘center its energies upon conscious efforts to create the institutions, doctrines and practices of the future,’ and give prime emphasis to policy. For constructive skepticism is not at odds with but essential to such policy making.[35]

Our argument echoes Frank’s, but given the different educational traditions, we believe developing skills in positive law are the critical starting point. In Frank’s case, his concern with the NHSJ project mirrors his objection to the inaccessibility of Langdell’s method. Indeed, by his 1951 paper Both Ends Against the Middle, Frank cautioned against the implementation of ‘the so-called “social science approach”’ as,

harmful in that it tends to foster, among law teachers and their students, an indifference, and therefore, an insensitivity, to the unique particular features of particular law suits. And sensitivity to those uniquenesses is imperative, if the trial courts are to do real justice, to avoid cruel, callous injustices.[36]

Against this, Lasswell and McDougal contend that sensitivity to particular cases is not at all incompatible with a broader systemic project which permits assessment of whether those choices are preferable or not. Indeed, the absence of such a project condemns realist jurisprudence to the same kind of discontinuity Whincup identifies in the case method system. As they put it,

None of the American realists, despite this deep concern for the consequences of decision and the impact of the law on human beings, have ever developed a comprehensive set of value and institutional categories, or a systematic set of procedures, for goal clarification and the other tasks, to aid them in their study and appraisal of decisions. The abstractions which they have formulated are almost exclusively low-level abstractions, and the problems with which they work, in the absence of a comprehensive guiding theory, can be related to each other only anecdotally.[37]

In survey then, Whincup’s concern with the case method system revisits much of the earlier anxiety about the appropriate method of legal training. Against a classically formalist attempt to extract doctrine and rules from particular cases, among a range of criticisms,[38] stands the desirability of giving understandable and coherent statement about doctrine generally which Whincup advocates and which we extend by providing a structured method for doing so.

Holmes’ focus on inquiring about integrity rather than mere coherence of legal decision making lends itself to concern with both the doctrinal choices required of legal decision making, and in the more extreme fact-skeptical approach of realism adopted by Frank, concern with the choices made in determinations about the facts – and the meaning of those facts – in any particular case. Over and above these concerns, stands the question of what role jurisprudence has in setting out a systematic approach to the evaluation of those choices. As the New Haven School argues, recognition of the various policy, doctrinal and factual choices which fall to the lawyer implies a pragmatic need for ‘a systematic and deliberate theory and procedure for clarifying community policy about particular problems in public order’.[39] Finally, the policy dimension of law is critical and needs to be addressed in law school. The positivist error is to see law as sterile doctrine, neutral in society and equally applicable to all. As Kennedy has argued, law is far from some neutral value free exercise and an uncritical positivist legal education is training for the hierarchy. As he puts it, a positivist approach to legal education will teach students

that your initial reaction of outrage is naïve, nonlegal, irrelevant to what you’re supposed to be learning and maybe substantively wrong into the bargain. There are ‘good reasons’ for the awful result, when you take a legal and logical ‘large’ view, as opposed to a knee-jerk passionate view, and if you can’t master those reasons, maybe you aren’t cut out to be a lawyer.[40]

Whereas the realists were at pains to emphasise the political nature of law, and politically focused scholars drew attention to the critical need for consideration of law as a value laden, political enterprise, for many lecturers (and professional accrediting bodies) law is essentially a professional pursuit. Each area of law is considered to be a unique area—having its own rules and doctrines—and to be studied independently with little need to consider it either as an academic discipline or a policy endeavour.

While the debate about Langdell’s case law method has gone through various twists and turns in the intervening decades, the basic issues in legal education—law as text versus law as social institutions of practice and policy—were identified in these early years of the university based legal education. These on-going debates and diverging views about the nature of law leave those charged with teaching law and students struggling to learn law confused. There is confusion about and a lack of consistent approach to law as a positive rule system, an institution, social practice, and substantive area of investigation. The need to teach substantive law at some point in the curriculum, a position agreed upon by all, is further confounded by opposing points of view on pedagogic methods, including preferences for problem-based learning,[41] group work, drafting exercises, moots and other approaches.[42]

We argue that an understanding of law as a discipline, regardless of positive, professional or policy emphasis, is a critical step to settling some of the confusion. Denominating law as a discipline does not exclude any of the three focuses but provides law lecturers with a way to organise their thinking about ‘what to teach.’

Donald describes a discipline as follows:

Disciplines provide homes within the larger learning community because they determine the discourse: the domain or parameters of knowledge, the theoretical or conceptual structures, and the mode of inquiry. Disciplines provide examples of systematic scholarly inquiry, and therefore serve as scaffolding for students in the process of exploring different ways of constructing meaning. In disciplines, faculty need to explain the main principles and tenets governing their field of study, describe how they establish and validate knowledge, and show the necessity for engaging in further research and discussion.[43]

Further, it supports an interest in and an effort to look for a consistent disciplinary approach which not only improves law lecturers own understanding but makes it easier both for them to teach and for students to learn. We argue that our CRDT framework provides a method for a ‘systematic scholarly inquiry’ and a way of ‘constructing meaning’. Like any disciplinary framework properly understood, we do not claim it is the exclusively correct method. Rather, we argue that it serves a foundational purpose for subsequent analysis and critique.

In proposing the framework below, we attempt to address the issue Langdell identified earlier in which law is taught as ‘a rag-bag of rules and exceptions’, by offering it as a foundation for identifying and analysing substantive legal concepts, readily transferable across all areas of law. It provides a basis for clarity in how the fact determinations that concerned Frank and subsequent realists are potentially applied by professionals within the legal system as well as a foundation for critical consideration of the policies of law. The CRDT analytical framework requires students to construe the rule first, understanding it as exclusion or inclusion, to consider how it may apply in the context specific facts and how at a systemic it may work to the advantage of one group over another. Of particular importance, a clear understanding of the framework helps students to identify and analyse the features common to every area of law, for every area of law is a category of law in its own right, provides rights and duties, and sets tests for the applicability of the category and for the exercise of those rights and duties. It is in educational terms what Webb would refer to as a ‘holistic’ approach to law teaching and understanding. We turn next to examine this framework in detail.[44]


As every law student to her or his great disappointment discovers, each area of law is hermetically sealed to every other area of law in terms of substantive content. This discovery leads to a feeling of being overwhelmed by the sheer amount of positive law that needs to be mastered not only in each subject but in the degree as a whole.[45] The student rightly asks: ‘How can I learn all this material?’. Law lecturers know the answer is: ‘You cannot. The solution is to learn to research.’ Yet, such an answer is an insufficient answer. Law students need to learn what to focus on when researching as well as needing a framework to deal with the results of their research. More importantly, they need a framework to approach legal problems generally: ‘IRAC’ simply won’t do![46] IRAC, a simple method for briefing cases and structuring law assessment answers hardly amounts to a method for analysis of areas or rules of law. At least from a disciplinary perspective, we can teach students to ‘think like a lawyer’—in a disciplinary sense.

Accordingly, we propose a transferable analytical framework that helps students to ‘think like a lawyer’ that is broadly applicable across the discipline of law. That framework is composed of the following four contents of law’s rule: Categories, Rights, Duties and Tests (CRDT). This CRDT framework is applicable to all areas of law, transferable from introductory subjects in law to more substantive areas such as Contracts and on to areas such as Advanced Cyber Law and Tax Law. It is readily applicable to all primary sources of law including constitutions, legislation, regulation and case law.

The CRDT framework is an exegetical framework for legal rules. It is a foundation for professional application and policy critique. It requires the student to ask a series of questions when analysing any piece of law. The questions are as follows:

(1) What category (and subcategory) of law is applicable?

(2) What are the rights created by/in that category? And, who has those rights?

(3) What are the duties created by/in that category? And, who has those duties?

(4) What are the tests to enter and exit that category? And what tests are within that category?

This framework is supplied to students in the first lecture and then applied consistently in subsequent lectures whenever cases or legislation is analysed. When students work to interpret and apply rules, they are asked to do so using the framework. As they do so, they are invited to consider both the professional and policy aspects of the rules.

Thus, for example:

1. Category: Professionally, we ask: does your client fit into the category? In policy terms, we enquire: Why was this category created? Who does it benefit? Which part of society advocated for it and who opposed it?

2. Rights: Professionally, the question is: does your client have the right? Or, who holds rights against your client? In policy terms we ask: Why was this right created? Why was it granted to people/parties category X rather than people/parties category Y? Why was a property right (right in rem) created as opposed to right (right in personam)?

3. Duty: Professionally, we ask: does your client have a duty? Or who owes your client the duty? In policy terms, we enquire: Why was this duty created? Why was it imposed on people/parties category X rather than people/parties category Y? Who benefits for this allocation?

4. Test: Professionally, we ask: does your client meet the test? Are there other associated tests that require analysis? In policy terms we inquire: Why was the test created with these elements? Is it easy to meet or difficult? That level of difficulty benefits whom? What is included and what is excluded?

We turn next to illustrate the CRDT framework using two examples—one drawn from a tort statute and the other from an employment case.

A CRDT Statute Example: Torts

Applying CRDT to section 43 of the Civil Law (Wrongs) Act 2002 (ACT) (‘CLWA’) we review the section. This section provides:

43 Precautions against risk—general principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

Applying the CRDT framework facilitates identification and analysis of the substantive core of the section. Answering the questions provides the following:

(1) Category: Tort. Subcategory: Negligence. Sub-subcategory: Breach of duty of care (standard of care)

(2) Test: Test established for negligence: cumulative test –– 43 (1) (a) and (2) and (3)

(3) Rights: A right to be free from liability OR a right to impose liability

(4) Duties: Take precautions against risk of harms OR a duty to compensate

Starting with the analysis of categories, it can be identified that the main legal category is tort, the subcategory is negligence, and the specific sub-subcategory is breach of duty of care.

Additionally, a thorough analysis reveals that breach of duty of care is part of another test that determines the tort of negligence. The other subcategories of the tort of negligence are the different elements that the plaintiff must prove to establish a cause of action for negligence: duty of care, harm or damage, and causation.[47]

The following diagram assists in visualizing the analysis (see Figure 1):

Figure 1

Category of Law
Tort of Negligence
Duty of care
Breach of duty of care
Harm or damage

The next concept of analysis is the concept of test. The section provides a test for determining whether a person’s conduct meets the statutory standard for the duty of care. That is, whether a defendant in a tort action has failed to take reasonable care.[48] In other words, the test in this section provides criteria for an assessment of whether a defendant has breached the duty of care and, as a result, has acted negligently.

The test found in section 43(1) is a three-prong, cumulative test –– 43(1) (a) and (2) and (3). All the three elements of the test must be satisfied to find breach of duty of care. Under this test, the courts will consider (1) the foreseeability of the risk of injury (s 43(1)(a)), and (2) the absence of insignificance of the risk or, simply put, its probability (s 43(1)(b)), and (3) the reasonable response to the risk (s 43(1)(c)).[49] Each one of these three elements have, in turn, another test.[50]

Accordingly, in applying the test set out in section 43(1), a person breaches his or her duty of care when he or she fails to avoid a risk of harm that a reasonable person in the same position would have avoided, and the risk was both foreseeable and probable. Figure 2 illustrates how this test fits within the previous diagram:

Figure 2

Tort of Negligence
Duty of care
Breach of duty of care
1) Foreseeability: s 43(1)(a)
2) Probability: s 43(1)(b)
3) Reasonableness of precautions: s 43(1)(C)
Harm or damage

The last two core concepts of analysis, rights and duties, are intertwined.[51]. Accordingly, the concepts must be analysed together.

In this case, the right that arises is twofold. First, a person who has not met the test of section 43(1) has the right not to be held liable for breach of duty of care (negligent conduct). Second, a person has the right to hold someone liable for negligence when the latter satisfies the test and the other elements required to bring legal action in negligence – duty of care, harm or damage, and causation.

The correlative duty that arises is also twofold. First, there is a duty to take reasonable precautions against risks that are foreseeable and probable. Second, there is a duty to pay for damages caused when a party can demonstrate that the defendant is captured in each of the categories or elements needed to establish the tort of negligence. The following figure includes the last core concepts of analysis within the general framework (see Figure 3).

Figure 3

Sub- Category
Tort of Negligence
Duty of care
Breach of duty of care
1) Foreseeability: 43(1)(a)
2) Probability: 43(1)(b)
3) Reasonableness of precautions: 43(1)(c)
1) Right not to be held liable
2) Right to hold someone liable
1) Duty to take reasonable precautions
2) Duty to pay damages
Harm or damage

In terms of professional application, students are advised to think about what this example of the CRDT framework means for a client. The professional question is: ‘What must a lawyer be able to advise a client as a result of this section?’ In a nutshell, a client will be held liable for negligence and have to pay where the client has failed to take precautions where the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions. A professional approach also requires consideration of the other elements and tests comprising the tort of negligence –– duty of care, harm or damage, and causation –– to provide accurate, thorough legal advice. Explaining that the issue is a matter of payment, helps students to focus their minds on the professional, practical implications of law.

In terms of policy, the CLWA attempts to create a single legal regime for all personal injuries and deaths resulting from negligence,[52] with special rules for medical practitioners.[53] Additionally, each prong of the s 43 cumulative test has an underlying policy concern to address. The first prong aims to exclude from liability those persons who fail to take precautions against risks in respect to which they had no knowledge or means of knowledge.[54] The phrase ‘not insignificant’ in the second prong was deliberately used as a double negative ‘to indicate a risk that is of a higher probability than is indicated by the phrase “not far-fetched or fanciful”, but not so high as might be indicated by a phrase such as “a substantial risk”.’[55] The third prong completes the analysis to remind the judiciary that reasonableness is different from foreseeability and probability in factoring negligence.[56] While reasonableness refers to ‘what the reasonable person in the position of the defendant would have done or not done in order to avoid harm to the plaintiff’,[57] which is guided by s 43(2),[58] foreseeability indicates knowledge and inference, and probability incorporates a more objective, scientific concept.[59]

As this example illustrates, a clear understanding of the positive law is not necessarily an end; rather, it is the foundation for professional application and policy critique. In the absence of such positive analysis, it is difficult to see how effective discussion of professional implications or critique of policies can occur.

B CRDT Example in Case Law: Employment Law

The second example is drawn from the case law in the category of employment law. It applies the CRDT framework to the facts of the relationship between a worker and a potential employer to determine whether the legal relationship is an employment relationship. Again, the proposed CRDT framework allows law students to identify the core concepts of analysis as the following:

(1) Category: Employment Law, Subcategory: Employment relationship (employer and employee)

(2) Test: Multi-factor tests

(3) Rights: Defined by the Fair Work Act 2009 (Cth) (‘FWA’)

(4) Duties: Defined by the FWA

The legal category in question is the employment relationship. There is no statutory definition of an employment relationship.[60] Instead, courts have developed multi-factor tests to identify whether an employment relationship exists.[61] There is no definitive common law multi-factor test.[62] Rather, a detailed, comprehensive factual analysis is necessary to establish whether the person supplying the service is an employee and the party paying for the service is an employer. The analysis includes several factors such as the degree and nature of control exercised by the potential employer, the work that the worker performs for competitors, the mode of remuneration, the provision of tools and equipment, and the terms of the agreement between the worker and the potential employer.[63] The applicable test, therefore, is not just one; it comprises all those factors developed at common law to identify an employment relationship.

Once the judiciary has defined that a particular legal relationship falls within the legal category of employment, multiple rights and duties arise for both the worker, now employee, and the employer.[64] These rights and duties are for the most part set out in the FWA. A person categorised as an employee, for instance, is entitled to flexible working arrangements, different types of leaves, and redundancy pay.[65] These rights arise once the legal requirements for each of them are met –– a situation which constitutes another set of tests. Employee’s rights create correlative duties in the employer once the applicable legal requirements are satisfied. The following figure summarises the application of the framework to the classification of a legal relationship as one of employment (see Figure 4).

Figure 4

Category of Law
Employment Law
Employment Relationship
Multifactor Tests
FWA, eg:
1) Flexible working arrangements
2) Leaves
3) Redundancy payments
FWA, eg:
1) Flexible working arrangements
2) Leaves
3) Redundancy payments

In terms of the professional, students are able to consider the implications for a client. For example, would an Uber driver be considered an employee? If so, consider what that categorisation would mean for the driver in terms of sick leave, superannuation and job security. Similarly, students would consider what costs and potential legal implications this categorisation would have for Uber. Understanding the implications of an application of the test for the client helps students to pay attention to the details of the test and consider how they might press for interpretations or garner evidence to support an application for a driver.

In terms of the policy critique, it is evident that a massive power imbalance underlies the employer-employee relationship.[66] And further, that while the costs to the party determined to fit into the employer category are significant, law’s policy of redistribution, shifts substantial wealth from investors looking to live off their wealth without working to people whose daily existence is precarious depending on the whims of weather and days of the week in order to determine whether they will be able to feed themselves today.

The two examples above evince the utility and portability of the CRDT framework. The CRDT framework was effectively used to analyse different sources of law, a piece of legislation and a common law case, in different areas of law, torts and employment law. The CRDT framework simplifies the teaching and learning processes, providing a straightforward method of legal analysis.

Student feedback on the use of the CRDT model has been strongly positive. Students have made comments such as: ‘I wish I would have learned this in first year. It would have made learning law so much easier.’[67] And ‘Now I finally understand what this [law] is about. I couldn’t make sense of it or see how it tied together before.’ [68] While such anecdote is no more than such, it provides support for the suggestion of wider use of CRDT across the curriculum.


Our article has identified a novel framework for understanding, teaching and learning law. The framework has the great benefit that it is readily transferable between different areas of substantive law. Further, it provides a systematic way for approaching legal materials of all types — statutes and case law — learning to ‘think like a lawyer’. It also provides a platform for addressing the professional and policy aspects of law. Finally, it is easily grasped and implemented by teacher and student alike.

We hope we have achieved our aim of introducing a new and useful tool to colleagues in the profession of law teaching and ultimately improving the learning and implementation of law, by law students and future law professionals of all types.


[*] Benedict Sheehy BTh, MA, JD, MA, LLM, PhD is a Professor of Law at Canberra Law School. His research focuses on corporate law and regulation and the law and society interface. Juan Diaz-Granados LLB (Hons), LLM, PhD (Grad Dip Comm Law, Grad Dip Bus Law, Grad Dip Insc Law), is a Lecturer at the Canberra Law School. He works primarily in law and technology and commercial law. Tomas Fitzgerald BA, LLB is a Lecturer at the Curtin School of Law. His research specialises in legal theory, international trade and effective regulatory systems.

[1] Julian Webb, ‘Taking Values Seriously: The Democratic Intellect and the Place of Values in the Law School Curriculum’ (Research Paper No 2009-06, Warwick School of Law, 12 November 2009), 18.

[2] Fiona Cownie, ‘Alternative Values in Legal Education’ (2003) 6(2) Legal Ethics 159, 161–4.

[3] Julian Webb, 'Post-Fordism and the Reformation of Liberal Legal Education' in Fiona Cownie (ed), The Law School - Global Issues, Local Questions (Routledge, 2019) 228.

[4] The Australian legal academy has largely been practitioner driven well into the mid-twentieth century. Australia had only 15 full time academics in the 1940’s, the rest being legal practitioners. David Barker, ‘A History of Australian Legal Education’ (PhD Thesis, Macquarie University, 2016). Unsurprisingly, while Australia has a long and not insignificant tradition of advocates for liberal education in the law schools, the positivist approach has often dominated Australian legal education. Bartie notes the strong interest in progressive ideas and rejection of formalism by the first generations of Australian legal scholars. See Susan Bartie and David Sandomierski, American Legal Education Abroad: Critical Histories (NYU Press, 2021).

[5] See Westerman’s metaphor of arranging bric-a-brac in a house. ‘The work of my legal colleagues reminded me very much of my mother, how, after having bought a new item for the household, was always busy, for hours it seemed, to find a proper place for it. It commonly brought with it a massive rearrangement of the entire household ... but after all that was done our apartment looked as if nothing had happened and as a if the order hand never been upset.’ Pauline Westerman, 'Open or Autonomous? The Debate on Legal Methodology as a Reflection of the Debate on Law' in Mark Van Hoecke (ed), Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? (Hart Publishing, 2011) 87.

[6] Jamie R Abrams, 'Reframing the Socratic Method' (2015) 64(4) Journal of Legal Education 562.

[7] See below n 45 and accompanying text.

[8] Janet Gail Donald, Learning To Think: Disciplinary Perspectives. The Jossey-Bass Higher and Adult Education Series (ERIC, 2002) 167, cited in Fiona Cownie, ‘Twining, Teachers of Law and Law Teaching’ (2011) 18(1-2) International Journal of the Legal Profession 121, 130.

[9] Cownie (n 8) 130.

[10] William Twining, 'Legal skills and Legal Education' (1988) 22(1) The Law Teacher 4; Lucille A Jewel, 'Oil and Water: How Legal Education's Doctrine and Skills Divide Reproduce Toxic Hierarchies' (2015) 31 Columbia Journal of Gender and Law 111.

[11] Duncan Kennedy, ‘Legal Education and the Reproduction of Hierarchy’ (1982) 32(4) Journal of Legal Education 591. Duncan Kennedy ‘Form and Substance in Private Law Adjudication’ (1976) 89(8) Harvard Law Review 1685.

[12] Avrom Sherr and David Sugarman, 'Theory in Legal Education' (2000) 7(3) International Journal of the Legal Profession 165.

[13] Michael H Whincup, ‘On Teaching Industrial Law’ (1970) 11(1) Journal of the Society of Public Teachers of Law 29, 36-7.

[14] Jeremiah A Ho, 'Function, Form, and Strawberries: Subverting Langdell' (2015) 64(4) Journal of Legal Education 656.

[15] Fiona Cownie, ‘The Importance Of Theory In Law Teaching’ (2000) 7(3) International Journal of the Legal Profession 225, 226.

[16] J Webb, ‘Why Theory Matters’ in J S Webb and C Maughan (eds), Teaching Lawyers’ Skills (Butterworth, 1996) 107, citing J H Schlegel (1984) 'Searching for Archimedes', 34 Journal of Legal Education, 103.

[17] Whincup (n 13) 36.

[18] Ibid.

[19] Whincup (n 13) 36.

[20] Bruce A Kimball, ‘Christopher Langdell: The Case of an ‘Abomination’ in Teaching Practice’ (2004) Thought & Action 23, citing the Boston Daily Advertiser in 1906, who described Langdell as ‘the greatest teacher ... that this country has ever produced’.

[21] Margaret Davies, Asking the Law Question (Law Book Company, 1994).

[22] John C Kleefeld, 'Rethinking "Like a Lawyer": An Incrementalist's Proposal for First-Year Curriculum Reform' (2003) 53(2) Journal of Legal Education 254.

[23] Kimball (n 20) 31.

[24] Ibid 33.

[25] See above 18 and companying text.

[26] Michael D A Freeman, Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell, 8th ed, 2008) 788.

[27] Kimball (n 20) 33.

[28] In Australia, for example, requirements for admission as a barrister in 1848 required passing tests in Latin and Greek. Barker (n 4).

[29] Jerome Frank, ‘A Plea for Lawyer-Schools’ (1947) 56 Yale Law Journal 1303, 1304.

[30] Ibid.

[31] Jerome Frank, ‘A national Bar program subject: What constitutes a good legal education?’ (1933) 19 American Bar Association Journal 723, 724.

[32] Harold D Lasswell and Myres S McDougal, ‘Legal Education and Public Policy- Professional Training in the Public Interest’ (1943) 52 The Yale Law Journal 203.

[33] Harold D Lasswell and Myres S McDougal, Jurisprudence for A Free Society: Studies in Law, Science and Policy (Martinus Nijhoff Publishers, 1992) vol 1.

[34] Frank (n 29) 1323.

[35] Ibid.

[36] Jerome Frank, ‘Both Ends Against the Middle’ (1951) 100 University of Pennsylvania Law Review 20, 35.

[37] Lasswell and McDougal (n 33) 15.

[38] Myron Moskovitz, ‘Beyond the Case Method: It's Time to Teach with Problems’ (1992) 42(2) Journal of Legal Education 241.

[39] Ibid 265.

[40] Kennedy (n 11) 594.

[41] Moskovitz (n 38) 270.

[42] For an entertaining example, see D A Jeremy Telman, ‘Langdellian Limericks’ (2011) 61(1) Journal of Legal Education 110.

[43] Donald (n 8) 292.

[44] Webb, cited in Cownie (n 15) 235.

[45] Lasswell and McDougal (n 33) 15.

[46] Jessica E Slavin, ‘Did You Learn About IRAC in Law School? How did IRAC Become Such an Important Part of Legal Writing Teaching? And Should it Be?’, Marquette University Law School Faculty Blog (online, 11 September 2008).

[47] Bernadette Richards and Melissa de Zwart, Tort Law Principles (Thomson Reuters, 2nd ed, 2017) 179.

[48] Joanna Kyriakakis et al, Contemporary Australian Tort Law (Cambridge University Press, 2020) 101.

[49] Benic v New South Wales [2010] NSWSC 1039; Gunnersen v Henwood [2011] VSC 440.

[50] For instance, the test associated with the third element is known as the ‘calculus of negligence’: see Wyong SC v Shirt (1980) 146 CLR 40; Civil Law (Wrongs) Act 2002 (ACT) s 43(2) (‘CLWA’).

[51] This is not to say that there are only rights and duties in law; rather, using these concepts crudely, helps students to think about law and legal relations as correlatives. The necessary refinement comes as the specific provisions are analysed-- in Hohfeld’s terms, correlative jural relations: see Wesley Newcomb Hohfeld, 'Some Fundamental Legal Conceptions as Applied in Judicial Reasoning' (1913-1914) 23(1) Yale Law Journal 16.

[52] Review of the Law of Negligence (Final Report, September 2002) [7.1]– [7.2].

[53] Ibid [7.5].

[54] Ibid [7.7].

[55] Ibid [7.15].

[56] ‘There should also be a statutory provision to the effect that whether failing to take precautions, against a not insignificant risk of personal injury or death to another, was negligent depends on whether, in the opinion of the court, the reasonable person would have taken precautions against the risk.’ Ibid [7.7].

[57] Ibid [7.9].

[58] The provision reads:

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):

(a) the probability that the harm would happen if precautions were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity creating the risk of harm.

CLWA (n 50) s 43(2).

[59] Review of the Law of Negligence (n 52) [7.10].

[60] See Andrew Stewart, Steward's Guide to Employment Law (The Federation Press, 6th ed, 2018) 54.

[61] Cai (t/as French Accent) v Do Rozario [2011] FWAFB 8307 (‘Cai’).

[62] See Putland v Royans Wagga Pty Ltd [2017] FCA 910 para [30] (‘Putland’); Stewart (n 60) 55.

[63] Cai (n 61) para [30]. Bromwich J explained that ‘[w]hile the degree of control remains important, the modern approach is multifactorial and the totality of the relationship must therefore be considered.’ Putland (n 62) para [30] (Bromwich J).

[64] There are, however, rights and duties that apply equally to employees and independent contractors, such as laws dealing with discrimination and work health and safety: see Stewart (n 60) 54.

[65] See the National Employment Standards (NES) in Part 2-2 of the Fair Work Act 2009 (Cth).

[66] Benjamin Means and Joseph A Seiner explain that ‘[a]lthough at-will employment has a formal symmetry, substantial inequality of economic power distorts the actual structure of labor markets.’ Benjamin Means and Joseph A Seiner, 'Navigating the Uber Economy' (2016) 49(4) University of California Davis Law Review 1511, 1520. See also Paul Davies and Mark Freedland, Kahn-Freund's Labour and the Law (Stevens & Sons, 3rd ed, 1983) 5.

[67] Student feedback in Corporations Law, University of Canberra, 2020

[68] Student feedback in Corporations Law, University of Canberra, 2020

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