MOOT COURTS AND MOCK TRIALS AS EXPERIENTIAL LEARNING

The increasing popularity of problem-based learning, simulations, and role-playing as effective complements or even substitutes to traditional lectures in political science classrooms draws on several decades of research on the advantages of active and especially experiential learning. Kolb (Reference Kolb1976; Reference Kolb1984) argues that learning is maximized when four processes occur in a cycle: concrete experience, reflective observation, abstract conceptualization, and active experimentation. Drawing on Kolb's work, Stice (Reference Stice1987, 293) finds that on average, students retain 10% of what they read, 20% of what they hear, 30% of what they see, 50% of what they both hear and see, 70% of what they say, and 90% of what they say while doing something. Another study involving two experiments in history and political science classes has shown that “the students who participated in the role-plays and collaborative exercises did better on subsequent standard evaluations than their traditionally instructed peers” (McCarthy and Anderson Reference McCarthy and Anderson2000, 279).

For the study of political science, the key strengths of simulations and role-plays stem from their ability to “immerse” students into actively reconstructing and indirectly experiencing complex political phenomena, leading to a deeper understanding of political processes and institutions, as well as refined analytical abilities and enhanced communication and public speaking skills (Smith and Boyer Reference Smith and Boyer1996; Brock and Cameron Reference Brock and Cameron1999).

Moot courts and mock trial exercises have become essential parts of many law school curricula and are also used, although less frequently, in political science education in Europe, Australia, and North America (Collins and Rogoff Reference Collins and Rogoff1991; Jefferson Reference Jefferson1999; Knerr and Sommerman Reference Knerr and Sommerman2001; Ringel Reference Ringel2004; Ambrosio Reference Ambrosio2006; Gillespie and Gordon Reference Gillespie and Gordon2006). Many institutions of higher learning in these parts of the world are involved in national or international intercollegiate tournaments as well. Despite similarities in approach and learning outcomes, moot courts and mock trials differ in both format and focus. Mock trials usually simulate first instance courts; feature a prosecution, a defense, and witnesses; and mainly try facts before the court. Moot courts, on the other hand, simulate appellate courts, in which teams of lawyers dispute whether the prior trial court decision was the best application or interpretation of the law (Ringel Reference Ringel2004; Ambrosio Reference Ambrosio2006).

Besides being exciting and engaging teaching tools, moot courts and mock trials benefit students in a number of ways. First, students gain a deeper understanding of the law, the judicial process, and the substantive area on which a given dispute is focused. Second, because students are required to conduct a thorough investigation of the disputed matter and prepare a robust argument, their research skills and critical and analytical abilities are enhanced. Third, the need to present and defend an argument before a group of exacting outsiders forces students to sharpen their argumentation, thus contributing to the improvement of presentation, debating, and public speaking skills. Moot courts and mock trials can also help students improve teamwork skills and enhance their leadership abilities (Hernandez Reference Hernandez1988; Curran, Takata, and Acone Reference Curran, Takata and Acone2000; Knerr and Sommerman Reference Knerr and Sommerman2004; Ringel Reference Ringel2004).

Of course, moot courts and mock trials are not without costs. They can consume a lot of time and energy for both faculty and the class, suffer from free-rider problems if not properly designed, entail psychological costs for the “losing” side, and incur direct financial costs for faculty and students (Ringel Reference Ringel2004). Critics also note that moot courts and mock trials can teach “wrong skills” because they are unreal (Kozinski Reference Kozinski1997), and that they can be inherently gender-biased (Morrison Reference Morrison1995). Most studies, however, contest these arguments and agree that the benefits of moot courts and mock trials far outweigh their costs (Knerr, Sommerman, and Rogers Reference Knerr, Sommerman and Rogers2001). Overall, student reception of these exercises has been very positive (Carlson and Skaggs Reference Carlson and Skaggs2000; Ambrosio Reference Ambrosio2006; Gillespie and Gordon Reference Gillespie and Gordon2006).

Despite being an effective, fluid, and exciting teaching tool, in the social sciences, moot courts and mock trials have been used almost exclusively in areas adjacent to law and with a primary purpose of teaching law, the judicial process, or a related substantive area such as professional ethics or journalistic rights (Carlson and Skaggs Reference Carlson and Skaggs2000; Ringel Reference Ringel2004). Yet, as I show in the following section, a mock trial format can serve purposes other than teaching law and the legal process and can do so with equal success. Two articles that do address non-law-related areas are worth mentioning. Brock and Cameron (Reference Brock and Cameron1999) briefly suggest that instructors could use moot courts in teaching political theory. Their treatment of the subject, however, is understandably cursory, as their preoccupation is with applying Kolb's learning preference model to political science. Carlson and Skaggs (Reference Carlson and Skaggs2000), on the other hand, do offer an interesting moot court model in which student teams argue before the court on the merits and weaknesses of a particular economic thinker's ideas. Despite its innovation and merits, however, this model's design and potential learning outcomes are only slightly different from those of traditional student debates, and as a result, the full potential that can be reaped through a moot court or mock trial remains untapped.

TEACHING THE HISTORY OF POLITICAL THOUGHT WITH MOCK TRIALS: PLAYERS AND SET-UP

In this mock trial, which I designed and have used successfully for several years, both the plaintiff and the defendant are eminent political and/or economic thinkers played by students.Footnote ² As explained previously, the plaintiff files a suit against the defendant for causing undue harm to the society or a particular social group by spreading ideas that the plaintiff finds ill-justified theoretically and/or empirically.Footnote ³ In my class, for example, “Herbert Marcuse” incriminated “Milton Friedman” with “advocating a subtly authoritarian capitalist system that rests on consumerism as a form of social control.” “Ayatollah Khomeini” sued “Mustafa Kamal Ataturk” for “sanctioning the encroachment of destructive non-Islamic Western values into the Islamic community by promoting laicism.” And “Friedrich von Hayek” has accused “John Maynard Keynes” of “providing justification for a gradual enslavement of men in the form of socialism through advocating excessive government intervention into markets.”

Both sides are represented by attorneys, who are also renowned thinkers whose ideas are close to those of the plaintiff and the defendant, respectively.Footnote ⁴ For example, “Immanuel Wallerstein” has represented “Marcuse,” “Karl Popper” has represented his old friend “von Hayek,” and the Artha-shastra author “Kautilya” has represented “Niccolo Machiavelli.” The sides can also draw “witnesses” to shore up their case. “President Franklin D. Roosevelt” has appeared as a witness for “Keynes,” and “Ernesto ‘Che’ Guevara” for “Marcuse.” The latter's flamboyant appearance and characteristic answers in the courtroom acted as an effective and fun energizer.

BENEFITS AND COSTS

Students who took part in these mock trials benefited from them in several ways. First and foremost, the in-depth study of a particular theory and its friction with a rival set of ideas helped students gain a deeper insight into and a more nuanced understanding of the ideas of the thinker they represented. In addition, the need to see various aspects of that theory and develop a convincing and robust argument enhanced students' critical and analytical abilities. Third, a careful examination of a set of related theories improved students' research skills. Fourth, the need to present and defend a case concisely and coherently both in writing and in a debate before a group of judging outsiders helped students develop their writing, presentation, and public speaking skills, as well as their ability to “think on their feet” (Curran, Takata, and Acone Reference Curran, Takata and Acone2000). Working in teams toward a common goal, sometimes with students from other universities, also contributed to their productive teamwork skills and fostered networks that persisted after the trial. Some students played their character so well that members of the audience later referred to them by that character's name. Finally, the mock trial helped students unfold their creative potential, as well as develop greater self-confidence in otherwise introverted students. Students in the audience also learned about various theories by watching the trials.

The key drawback of using a mock trial in teaching political thought is that students may slip into focusing on forensic oratory and courtroom “pyrotechnics.” At the same time, some students may be prone to read their oral arguments out of fear of potential embarrassment. Such problems should be tackled in advance by developing a set of rules to guide students' behavior before and during the trial.

Our mock trials also entailed some costs, including the expenditure of a lot of faculty and student time and energy outside class. Initially, I also incurred direct financial costs, although later mock trials were sponsored by the university and an educational non-governmental organization. The university's provision of gowns for the judge and attorneys helped create a courtroom atmosphere.