Legal problems are addressed in at least three basic ways, or modes, each of which is associated with a particular "tense": (1) through judgment, an authoritative decision pronounced by an empowered third party concerning the legal significance of past behaviors; (2) through consent, a "present tense" resolution in which the parties to a legal concern resolve it privately by negotiated or mediated agreement; and (3) through prevention, a future-oriented process that designs contracts, legal arrangements, compliance regimes, education and training programs, organizational structures, or even physical environments so as to keep legal risks from erupting into injuries or legal liability.
This Essay urges more understanding and use of the alternative modes of "consent" and "prevention" in legal education. To facilitate this, Part I explains and contrasts the three modes. Then, Part II offers specific suggestions for how the alternative modes of consent and prevention-the present and future tenses-might be integrated into traditional, doctrinal law school courses.
Thomas D. Barton, Three Modes of Legal Problem Solving–and What to Do About Them in Legal Education, 43 CAL. W. L. REV. 389 (2007).