Article of the Month
Jeff Thaler, Meeting Law Students' Experiential Needs in the Classroom: Building an Administrative Law Practicum Implementing the Revised ABA Standards, (2015).
As we well know, but as television-viewers might not believe, much modern law practice occurs outside of the courtroom. An increasing amount of it involves advocating for clients in front of regulatory bodies, which necessarily implicates different skills from courtroom-based practice.
Jeff Thaler, Assistant University Counsel & Visiting Professor of Energy Law & Policy at the University of Maine Schools of Law & Economics, addressed this gap in education by creating a practicum course in administrative law. He offers blueprints for others to follow in his article Meeting Law Students' Experiential Needs in the Classroom: Building an Administrative Law Practicum Implementing the Revised ABA Standards.
The Revised ABA standards Professor Thaler's title mentions require learning outcomes related to student competency in substance, analysis, professionalism, and skills. Experiential learning opportunities, and specifically a practicum course, can target each of those core abilities. A practicum, as Professor Thaler defines, is "a teaching methodology enabling students to develop practical research, writing, and oral advocacy skill using real-world problems from a substantive area of the law in a classroom setting."
The practicum course Professor Thaler created was based on administrative and ethics law issues generally, with a particular focus upon regulatory issues involving wind power projects in Maine. His article details his syllabus, along with the requirements of his course. Students in his practicum classroom were given an evolving case study and tasked with writing client memos, orally presenting their results, direct and cross-examining expert witnesses, and presenting opening and closing arguments. Interspersed throughout the course, Professor Thaler arranged an impressive collection of panelists from the practice area to address the students on the substantive and procedural issues involved.
The article is short and wonderfully readable. He didn't authorize me to say this, but I would imagine, just judging from the tone of the article, that Professor Thaler would be incredibly welcoming of any questions and, to the extent you like what you read about the practicum course he created, would happily help you think through something similar.
To the extent that you're interested in this kind of learning experience for your students, check out the article and while you're online, go ahead and register for our experiential learning conference in June!
[Read fulltext at SSRN (453 KB PDF)]
Kris Franklin, Theory Saved my Life, 8 New York City Law Review 599 (2005).
In her 2005 New York City Law Review article, "Theory Saved my Life," Kris Franklin concludes, "Students need to be passionate about learning in law school in order to excel." Her article describes creating student passion through the development of legal theory rather than thinking of legal theory as an antipositivist, valueless, ivory tower, recreational endeavor anathema to the teaching of actual law.
Rather she views theory as involving "critical reflection on legal doctrine" and as an essential element of effective legal education. She states,
"Ideally, theory elucidates through connection rather than obscuring through complexity. Theory helps us consider, reflect and communicate ideas. That is not to say that theory cannot be complex (God knows) but rather that its goal is ultimately to untangle, to lay out the various strands of a phenomenon. With theory, details are more than just episodic, unrelated chunks of fact. They form a constellation in which theory connects the stars and constructs the image. The specific story a theory tells sometimes matters less than that it tells a story at all--that it turns otherwise random-seeming elements into larger structures that carry meaning that comments on those elements and makes sense out of them."
She then suggests that the traditional case method involving the parsing of individual cases devoid of a bigger theoretical framework for the doctrine actually hampers the learning and interpretation of the law. Kris identifies this interpretation as the essence of the cliché, learning to think like a lawyer and an essential component of teaching law. In her own words, "Law students must be able to see, construct, deconstruct and use legal theories, even though it does not immediately follow that they must be able to describe or theorize about the theory."
As evidence of this Kris points to the frequent law professor refrain which demonstrates that the difference between the A's and the B's is both doctrinal and theoretical. Doctrinally the most successful students are able to carefully able to apply law to facts for example. On the theoretical side however, law professors often describe the A student as "understanding the questions being asked and "getting" the subject."
Developing and understanding theory or theorizing is what we are asking students to do when we ask them to synthesize or arrange cases yet we spend very little time teaching our students how to theorize because it is often said that this ability cannot be taught. Kris disagrees and in this article describes using art and distinguishing between paintings in her law school class to facilitate the process of theorizing. She describes students going from saying the three pictures are similar simply because they involve individuals wearing stripes, to discussing why the wearing of stripes is significant. Stripes begin to invoke larger meaning to her students, such as feminist entrapment in the domestic sphere.
Theory is what makes students passionate about the law, because,
"it allows a student to think about why something might be a problem in the first place, or how to rethink it as a different kind of problem (or not a problem at all). Theoretical analysis is substantial--when students create or pose theoretical questions they feel like they've gotten somewhere. Being able to make and sustain connections between ideas is far more satisfying than simply being able to repeat doctrine. Students need theory not only because it helps them understand doctrine and do well in school, but also because it makes law school an intellectual experience. Without theory, law school graduates are not lawyers, they are, in [a] sense, legal technicians, fiddling with unwieldy machinery but never imagining they can invent a new gadget altogether."
Maybe it is time we begin to see legal theorizing as something our students are capable if we take the time to create environments where students internalize this teachable aspect of legal education rather than reflexively portray it as an acontextual, higher order skill which we need to fictionalize to protect our egos from realizing we are in a classroom of our intellectual equals.
[Read fulltext at SSRN (4.8 MB PDF)]
Mary A. Pyc, et al., Test-enhanced Learning, Applying Science of Learning in Education (2014).
The authors of Test-enhanced Learning (Mary A. Pyc, Pooja K. Agarwal & Henry l. Roediger, III) give testing a good name. Summarizing the results of empirical research studies, they show that "[p]ractice tests have been shown to improve long-term retention across the lifespan . . . and have been documented using a wide range of materials and experimental designs . . ." (citations omitted). While many of have seen the value of giving students multiple opportunities to practice and get feedback on their learning, this chapter goes further, noting the scientific results of different testing approaches across a range of disciplines. Consider some of their points.
- Rereading is less effective long-term than taking practice tests. Example: to prepare for a test, some students read a passage four times. A second group read the same passage once, and then practiced three free recall tests. Students were tested five minutes or one week later. "[O]n an immediate test, cramming works. . . . [W]hen the delayed final test was given one week later, the opposite pattern of results were obtained: Recall was best when students had been tested three times during practice and worst when they had read the passage four times." (citations omitted).
- Testing with immediate feedback is more effective than taking practice tests alone. When students receive correct answers immediately after taking a practice test, they perform at a higher level than when they receive no feedback. Students tend to perform better on test items they initially got wrong, but "for more complex materials, feedback can also help students even when they get the answer correct (and especially when they provide a correct answer with low confidence)." (citations omitted).
- Practice tests help students learn, regardless of format. The act of taking a practice test-short answer, essay, or multiple-choice-helps students improve their exam performance, even when the final exam format is different. Using clickers (electronic response systems) and having students respond to questions verbally all help student exam performance.
Test-enhanced Learning suggests a number of ways to incorporate low-stakes practice testing in the classroom. Among other techniques, the authors recommend asking all students take a minute to write down a response to a question, using clickers, and giving frequent short quizzes. Moreover, the research suggests that intentionally employing cumulative practice tests will help our students' long-term learning. When students have to repeatedly review and practice material, not just the material most recently taught and which is easiest to recall and apply, their learning is more likely to last beyond the final exam.
Test-enhanced Learning is a chapter in Applying Science of Learning in Education: Infusing Psychological Science into the Curriculum (Victor A. Benassi, Catherine E. Overson & Christopher M. Hakal, eds. 2014; begins page 78).
Stefani T. Relles and William G. Tierney, Understanding the Writing Habits of Tomorrow's Students: Technology and College Readiness, 84 Journal of Higher Education 477 (2013).
In this recent Journal of Higher Education article, the authors examine the parallels between online and offline literacies for insights into student preparedness, particularly for disadvantaged students. The theoretical framework and research findings have implications for law student readiness as well. The brief description that follows attempts to translate the article into lay language, and thus will understandably lack some of the nuance and precision conveyed by terms of art from the field, including key concepts from the "new literacies theory" and sociocultural literacy research generally.
In their study, the authors assigned 91 students in a summer academic success program to create online social media profiles. The assignments included posting academic essays, as well as expressing identity through profile images and curation of appropriated text and images. The study was designed to examine online literacy in key areas that are theoretically parallel to traditional writing skills, including thesis formulation, argumentation, and attribution. For example, the ability to reduce an argument to visual form is arguably akin to the ability to hone an effective thesis statement. In addition, curation skills relate to research skills such as sifting for relevance and then synthesizing relevant information, and "performance" skills correlate to the ability to shift identities for different genres and discourse situations.
The researchers found that most of the students lacked proficiency in online persuasion skills, and they question whether addressing that skill set may also help address similar problems in traditional writing and in academic performance. (Theoretically, both parallel skill sets result from a more general, underlying skill set.) For example, most of the students had difficulty showing higher levels of proficiency in expressing identity through profile images, showing clear connections between identity and curated content, and writing appropriately for a small variety of discourse communities.
In law school and practice, a great deal of our work now occurs online, and also requires novices to take on a professional identity and several new writing genres. The amount of legal research material now available digitally is truly vast, taxing even very skilled researchers' resources. Thus, the question posed by these researchers is germane to legal education as well, and not just to faculty in legal writing programs. To what extent do we assess students' digital competence before we expose them to advanced research and reasoning problems, and to what extent must we address the deficiencies we find there?
NOTE: Due to copyright protections, the full text of the article cannot be linked here, but should be obtainable at no cost through almost any faculty member's university library account. Typically the process is to search for the journal title in the online library catalog, click on the database subscription link for that journal and year of coverage, and then locate the volume and issue.
[Go to Journal of Higher Education homepage]
Timothy Casey, Reflective Practice in Legal Education: The Stages of Reflection, 20 Clinical Law Review 317 (2014).
"Good Judgment comes from experience. Experience comes from bad judgment."
So begins Professor Casey's article on reflection and judgment. Most lawyers and judges rank judgment as a critical skill for legal professionals. Yet many law professors struggle with the question of how to teach their students professional judgment. Professor Casey's article offers an organizational model for teaching reflective practice as a way to build the skills, values, critical thinking, and judgment necessary to solve complex problems.
The six stages of reflection are the heart of Professor Casey's article. He grounds each stage in theories of cognitive development and moral development. And for each stage of reflection, Professor Casey identifies appropriate questions teachers can use to prompt student reflection.
Stage 1. Competence. What would a competent lawyer do in this situation? What would be necessary to achieve a basic level of competence? Did you meet that standard?
Stage 2. Difference and Choice. Is there more than one way to accomplish your objective? At what point in the performance did you make a choice? Were you aware of making the choice?
Stage 3. Internal Context. What internal factors affected your choices? What personal preferences, characteristics, experiences, and biases affect your professional performance?
Stage 4. External context. What external factors affected your choices? What preferences, characteristics, experiences, and biases of other people (such as clients, other lawyers, and judges) affect your professional performance?
Stage 5. Societal Context. What societal factors affected your choice? How do systematic power dynamics, political and social realities, and economic forces affect your professional choices?
Stage 6. Metacognition. How has your thinking process developed as a result of this performance? How has your thinking process developed as a result of your prior reflections?
Professor Casey recognizes two challenges to teaching reflective practice. First, students may think reflective practice is unimportant because it does not focus on substantive knowledge. Second, teachers may be disappointed in the low level reflections student produced in their classes. Professor Casey's stages of reflection model addresses both problems. He makes a persuasive case for the role of reflective practice in developing sound professional judgment. And his prompts can help teachers help students to deepen their reflective practice.
By the way, all of the prompts that Professor Casey developed for students could be applied to teachers' reflections on their own professional performance. But that is another story...
[Read fulltext at NYU website (153 KB PDF)]
Emily Grant, The Pink Tower Meets the Ivory Tower: Adapting Montessori Teaching Methods for Law School, 68 Arkansas Law Review ___ (forthcoming 2015).
Great teaching is timeless. History gives us dramatic examples of individual teachers - Annie Sullivan and Jaime Escalante, for example - who shocked the world by helping students to achieve unimagined potential. History also gave us Socrates - Ancient Greece's most famous critical thinker and inspiration behind Christopher Langdell's Socratic Method approach to law school, introduced in 1870. In 2014, perhaps, it is time once again for legal education to look at history's teaching greats to provide some outside-the-box sources of inspiration and insight.
Maria Montessori is one of history's most innovative and influential teachers, but the value of her methods is typically heralded in the context of early childhood education, not - at the other end of the development chronology - as an appropriate model for law school. Professor Emily Grant, however, draws from Montessori's "Pink Tower" methodology to suggest ways to re-energize and re-focus law school goals, methods, and outcomes.
Grant heralds the Montessori Method as a way to increase law student engagement and foster learning independence. These ends are difficult to achieve in law schools today, where faculty often decry lack of student focus and motivation as the unfortunate but unavoidable byproducts of teaching "Millennials." But perhaps Maria Montessori can succeed to inspire 21st Century law students and teachers much the same way as she inspired her students in Casa dei Bambini a century ago. That suggestion in itself is thought provoking, but Grant goes further in explaining how certain aspects of Montessori's method could and should translate into the law school context.
The Students. Montessori's three elements of education are the learner, the trained adult, and the physical environment. Grant points out that Montessori theorized that students developed in three-year phases, and law school is (of course) another three-year development phase. Montessori's goal for each three-year development phase is to help children become "normalized" and "harmonious" - essentially to ignite in the children the desire to learn and to help the children develop the ability to learn independently. Montessori pointed out that self-motivated learners find satisfaction in their work rather than merely from external assessments of their efforts. Grant asserts that the "primary way Montessori principles can improve the law school experience" for students is "by forcing professors to acknowledge that learning in law school must be self-driven." Indeed, we are training adult learners in law school who - by the very nature of law practice - will continue to educate themselves throughout their careers. The critical importance of independent learning therefore seems self evident, and yet current methodologies fall short of achieving this metric.
The Professors. Montessori teachers are trained, scientific observers. Their role is not so much to impart information as to examine the students and provide them with resources to guide their independent efforts. Reimagining a law professor in the role of passive observer would require a fundamental shift in approach and philosophy. Professors are perceived as experts in doctrine and reasoning, and their classroom role is based on enlightening and pushing their students, not merely passively observing student efforts at self-teaching. At first blush, therefore, the Montessori model of instruction seems to be a poor match for law faculty. But reactive resistance to a more passive instruction model may say more about faculty egos than current teaching effectiveness. It may be more productive to explain less, lecture not at all, and merely provide students with well-designed opportunities to engage with legal analysis on their own. This model would use insightful professorial feedback in place of insightful professorial elucidation. Such an approach may not provide as many pre-digested answers to student legal questions, but possibly may better empower students to seek out solutions to their own queries.
The School. Montessori classrooms are specifically designed to enhance student freedom and self-assessment. Classroom environments highlight structure and order, reality and nature, beauty and atmosphere, and connections with the community. Grant believes that these same principles can improve teaching environments in law school - not only informing the design of class content, but the design of learning spaces as well. Grant posits that self-grading materials and student involvement in content choices can increase buy-in among the students. Greater ownership will lead to more motivated learners, and that will improve learning outcomes in law school, just as outcomes are improved for young children given a level of control over a structured environment in a Montessori preschool. Genuine linkages with community concerns can help students develop responsibility. Social development can be fostered through group work and other collaborations. Finally, the physical space of a law school can assist student-driven learning through flexible classrooms that can be easily reconfigured, multiple workstations for hands-on projects, and facility design, with improved light and attractive décor, inviting contemplative and productive thought.
Montessori's Pink Tower at first blush seems far removed from the lofty halls of legal learning. Applying Montessori principles to law school flips the paternalistic teaching model on its head, empowering students and redirecting professorial efforts to a completely new role. It may be too much to expect that law schools would ever wholly incorporate Montessori methods. But even incremental changes that increase student engagement through thoughtful learning environment and reimagined teacher roles could pay huge dividends. It is hard to overestimate the positive effects that Montessori Method's purported outcomes - training creative thinkers and enthusiastic self-learners - could have on our law schools and on the legal community if these ends can be achieved.
[Read fulltext at SSRN (241 KB PDF)]
Washburn University School of Law
Mari J. Matsuda, Admit that the Waters Around you Have Grown: Change and Legal Education, 89 Indiana Law Journal 1381 (2014).
"I teach first year law students," I explain to my non-lawyer friends and relatives, "when they're super sweet and eager and ready to change the world." Inevitably, someone in the conversation (and <shame> sometimes it's me, if I think I can get a laugh) says "well... law school will beat that feeling out of them eventually."
Mari J. Matsuda, professor of law at the University of Hawai'i at Mãnoa, William S. Richardson School of Law, believes that law school should instead reaffirm and nurture that drive to make the world a better place. Professor Matsuda spoke last fall at the Addison C. Harris Lecture Series at the Indiana University Maurer School of Law, and her remarks were recently published by the Indiana Law Journal. They are worth reading.
She begins with a compelling narrative about the pressing social problems of inequality, unsustainability, and war, and the law, she asserts, is inextricably linked to solving these global issues. Using the civil rights struggles of the 1960s, Professor Matsuda explains that the law "was born on dark roads in rural towns where courageous acts forced the arc of history to make its turn. Crisis created law, temporarily resolving the crisis and setting the stage for the next one–this one." Each legal fight, at the global, national, state, or municipal level, can affect our lives significantly. "Lawyers are the champions we will send forth to represent us in that arena. We need good ones." Indeed.
As to our roles as law professors, Professor Matsuda notes that "[t]raining the cadre that will save our planet might seem like an outsized ambition, but we cannot turn from it." She offers her vision for an educational package that will raise up a generation of lawyers who can solve the social problems of today and tomorrow:
- Traditional lawyer skills of rhetoric and manipulation of legal materials — case analysis, statutory interpretation, advocacy
- Clinical skills, with an emphasis on negotiation as being most important
- A "radically interdisciplinary toolkit"—knowing enough to ask useful questions, call in experts, and identify the knowledge paths that require exploration
- "Knowledge of history, economics, empirical / social science methodology, literature, science / technology, statistics, comparative theology, geography, anthropology, political theory, moral philosophy, and social change / anti-subordination theory"
- The capacity for utopian visioning—"The technique of getting big, audacious ideas on the table before tearing them down is important, as is the next step: evaluating ideas using critical thinking skills."
Professor Matsuda acknowledges that the point is not to create a laundry list of readings or required courses (though she offers her own list of specific skills lawyers should have: read a financial statement, speak a language other than English, understand what the Federal Reserve Board does, memorize at least one poem by heart, among others). Instead, she urges that it is our jobs as professors to make our courses "rich with content useful to lawyers as leaders and change agents. It is our job to hold one another to standards of rigor in pedagogy and vitality in content."
The essay is short, but packed with powerful truth that we all need to hear. It's a big-picture conversation starter, asking us to envision and to implement changes in our classroom that will translate to changes in our society.
I'll admit when I was browsing through articles to review for this column, I had about fifteen free minutes in between a three-hour faculty "mini-retreat" and a lecture I gave to remind clinic students how to write a good memo. This semester, more than any other time in my teaching career, I am feeling squeezed between meetings, and it's so easy to lose sight of the students... the students that can and want to and should make a difference in the world. Professor Matsuda's call to action—to incorporate today's social problems into my teaching—was just the goosebump-filled reminder that I needed to feel renewed and excited about my profession, my students, frankly, and my role in the world.
[Read fulltext at Indiana Law Journal website (310 KB PDF)]
Stephen M. Johnson, Teaching for Tomorrow: Utilizing Technology to Implement the Reforms of MacCrate, Carnegie and Best Practices, 92 Nebraska Law Review 46 (2013).
This article first examines and discusses the Langdellian Model of teaching, pointing out shortcomings of the methodology identified by legal realists as early as 1920. It then summarizes the MacCrate, Carnegie, and Best Practices reports' discussions of the shortcomings of Langdellian teaching--such as insufficient skill instruction, alienation of women and minorities, and using one pedagogy in light of learning style variety--and the recommendations made in each study.
Both MacCrate and Carnegie "urge law schools to integrate the teaching of law practice skills and professionalism." Best Practices also recommends an increase in skills instruction but further recommends enhanced and more frequent assessment, stated teaching objectives, and the use of "context-based instruction." Finally Best Practices also recognizes that technology plays an important part in implementing these recommendations.
The author next reminds us that most of our students for the next fifteen or twenty years will be digital natives who have learned very little from actual books and are the complete opposite in terms of learning preference than the law students of the past.
Given these realities, Professor Johnson provides concrete examples of how technology can be incorporated into legal education to address the realities of today's learners. He specifically identifies how technology can be used to achieve effective and non-labor intensive assessment and effective classroom simulation. He also discusses the realities of the casebook of the future and the importance of shifting the casebook to focus on practice realities with appellate cases becoming the reference material rather than the core of the casebook. Finally, the article points out that students need to be exposed to the available technologies and to be trained in their use, and he provides concrete examples of how this can be achieved.
One of the most useful things about this article is that rather than just restate what the needs of legal education are and what the recommendations of the reformist reports are, Professor Johnson details realistic and attainable implementation goals and provides the methodology to attain these goals. His recommendations provide a coherent, concrete, and realistic blueprint for effective teaching in the modern legal education environment. It is inspiring and well worth the read.
[Read fulltext at Nebraska Law Review website (213 KB PDF)]
Michele R. Pistone and John J. Hoeffner, No Path But One: Law School Survival in an Age of Disruptive Technology, 59 Wayne Law Review 193 (2014).
Articles on technology and change in legal education are certainly not new. Yet with the stir over MOOCs (Massive Open Online Courses) making the previous debates on classroom laptops and the Internet seem more rudimentary even within a mere decade's time, the discussion on technology and law schools seem to be moving deeper and probing at the hearts of institutions rather than appearing as how-to pieces for dealing with students who access both Facebook and Westlaw at the same time they are staring at the lectern–or are supposed to be. The recent works of Professors William Henderson, David I.C. Thomson, and Richard Susskind come to mind as premonitions for the deeper institutional changes that technology is bringing and will continue to bring to a life in the law–whether that is in law teaching or practice.
In No Path But One: Law School Survival in an Age of Disruptive Technology, Villanova Law Professor Michele R. Pistone and attorney John J. Hoeffner, have written a timely article on-par with the aforementioned cadre. Professor Pistone also runs the website, legaledweb.com, and recently organized Igniting Law Teaching, a TEDx-styled conference at American University Washington College of Law that was devoted to bringing new innovations to law teaching. Together with Hoeffner, Pistone argues that "a once-in-a-century change" is happening now with technology in higher education. Accordingly, if traditional law schools do not respond effectively (and soon), then the risk of losing the foothold on legal education will be great and the risk of diluting the quality of available ways of educating lawyers will be even greater. However, Pistone and Hoeffner's idea of embracing technology is not the typical go-with-the-flow advice; instead their recommendation is more ambitious: law schools must improve the quality of legal education in a sustainable way that will also outpace cheaper and more flexible online competition. Whether one agrees with their assessment or not, it is an article that accurately contextualizes the reality that technology is exposing the critical flaws of traditional legal education more rapidly and openly than we have imagined.
Making an analogy between the powerhouse web-based bookseller Amazon.com and its physical competitors Barnes and Noble and the now-defunct Borders Books, Pistone and Hoeffner observe that "the problem for law schools-and the reason that the Internet could become a living nightmare for them-is that the analytical and doctrinal training law schools have emphasized for more than a century is precisely the legal training that is most amenable to being taught over the Internet." To change, law schools will need to own up to the weaknesses in legal education that have been espoused by the Langdellian/Socratic case method of teaching and "move the regulated norm in legal education to a place where online schools cannot follow, by mandating the extensive teaching of the many practical lawyering skills that require, to be taught effectively, face-to-face, in-person interactions." So in essence the big-picture view of their recommendation would be for law schools to migrate online "whatever educational content can be migrated online" as they concurrently expand their experiential learning programs.
To Pistone and Hoeffner, the goal of sustaining the traditional place-based law school is an important one to the quality of legal education because another model that might utilize working attorneys over full-time legal educators might offer a lower-quality experience. In this way, their message is similar to Georgetown Law Professor Robin West's pronouncement in her recent book on teaching law that the legal academy needs a healthy distance from the profession in order to effectively critique the law and the profession. However, Pistone and Hoeffner's nuances are examining the distance from an educational perspective, arguing that Langdell and university-based law schools emerged in the 19th century as a response to the failures of the apprenticeship model to adequately prepare attorneys and a need to create a uniform method of instruction. In this way, they see the move to cheaper online education that replaces place-based law schools as a potential step backwards to the same problems from the apprenticeship era.
But something's got to change, and according to Pistone and Hoeffner, it is the Langdellian educational model that must be altered-that model that once brought uniformity but at the risk of basing it within a faulty formalist logic about the science and autonomy of the common law tradition. It is not a secret that the Langdellian/Socratic case method had its critics as early as the initial decades of the 1900s, including famously the Realists who succeeded Langdell and the other Formalists. Pistone and Hoeffner prodigiously track the criticisms of the 1928 Alfred Reed report and its later successors in order to decisively make their suggestions on what and how to change. Their general approach is to act in a manner that can identify technological advances with urgency, that invites constant experimentation in the classroom for active learning, and that recognizes vulnerability of law schools honestly. Only with that general mindset can law schools choose the right path, which they argue is utterly discernible.
And that path is this: law schools must ride the speed of the technological evolution by becoming more adept at utilizing the technologies of the day in ways that capture the advances for new educational opportunities that technology provides; they must offer enhanced experiences of the physical building that law schools occupy that online providers cannot copy; they must reward and refine student use of new literacies rather than ignoring and lamenting such use; and they must always take maximum advantage of insights from the emerging field of the learning sciences.
Not all current scholarship on changing legal education incorporates discussions of technology. But thankfully Pistone and Hoeffner recognize technology's impact in the educational marketplace and how law schools need to physically and existentially evolve with technology to bring quality education to current and future law students. Insightfully written and thoroughly researched, Pistone and Hoeffner's article places a new spin on reinventing the wheel of legal education.
[Read fulltext at SSRN (938 KB PDF)]
University of Massachusetts School of Law-Dartmouth
Steven Keith Berenson, Preparing Clinical Law Students for Advocacy in Poor People's Courts, 43 New Mexico Law Review 363 (2013).
In this article, Professor Berenson makes a persuasive argument for preparing clinical students to engage in effective advocacy in "poor people's courts." This review of Professor Berenson's article addresses three issues: (1) What are "poor people's courts"? (2) Why should clinics prepare students for advocacy in those courts? (3) Why should non-clinical teachers read this article?
What are poor people's courts?
Professor Berenson defines "poor people's courts" as courts that handle family, housing, consumer, bankruptcy, and criminal cases. Poor people's courts share five common characteristics:
- Cacophony. These courts are crowded and noisy, with limited seating and lots of people entering and leaving.
- High volume. Dozens of matters may be scheduled for the same time so parties may wait extended periods for their cases to be heard.
- Limited time. Many matters are decided in a minute or two; courts rarely allot ten minutes to a single case.
- Self-Representation. Many parties represent themselves, some are represented by legal aid or pro bono lawyers, and institutional litigants (such as landlords and creditors) are represented by private lawyers.
- Informality. Adherence to rules of procedure and evidence often are relaxed.
Why should law school clinics prepare students to represent clients in poor people's courts?
Early in his article, Professor Berenson summarizes three responses to this question.
First, the skills that students will develop through representation in poor people's courts will be valuable to them throughout their careers, regardless of their future areas of practice. Second, it is only through direct encounters with the way the legal system impacts the lives of ordinary people that students can gain a genuine understanding of how our justice system truly operates in practice; this understanding places them in a better position to improve that system later in their careers. Finally, in contrast to the common understanding that lawyers cannot make a living representing ordinary people, new and emerging forms of practice suggest that new law graduates may well be able to develop successful practices focusing on the needs of ordinary people, including advocacy in poor people's courts."
Why should non-clinical teachers read this article?
This article has lots to offer all law teachers. Here are four examples.
Preparation for Practice. Many legal educators believe that law school should prepare students for practice. Professor Berensen provides a window into one aspect of practice that some of our graduates will encounter. Many of the characteristics of poor people's courts may be foreign to legal educators who experienced a very different type of practice. So for legal educators who are committed to preparing students for practice, this article provides insight into what "practice" may entail for a number of graduates.
The Justice Mission of the Law School. Many law schools consider access to justice to be part of their mission. Law school clinics that represent poor people are a significant, concrete manifestation of a law school's commitment to justice.
The Universe of Scholarship on Legal Education. There is a vast body of scholarship on legal education. Even legal educators who read lots of this literature tend to focus in one or two areas, missing the insights and ideas from other areas. For example, classroom teachers who focus on the literature regarding teaching, learning, and curriculum may miss the robust scholarship on clinical legal education. An occasional foray into the legal education literature outside of the teacher's main interest area can broaden and deepen our understanding.
Adaptable Assignments. This article contains ideas that are easily adaptable to many courses. For example, Appendix A sets out the directions for a courtroom observation assignment that could be used effectively in clinical and externship courses, legal writing and skills courses, and first-year and upper-level required and elective "substantive" courses.
[Read fulltext at New Mexico Law Review website (144 KB PDF)]
Peter H. Huang, Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy about Legal Education and Parenting, 1 British Journal of American Legal Studies 297 (2012).
As Pharrell Williams' hit song, "Happy," tops the charts for yet another in a series of several weeks, as the academic calendar winds to a close, and as many law students prepare to graduate, the moment is ripe to consider not only whether legal educators have achieved their articulated goals, but also whether legal education has, in fact, chosen the right goals to begin with. Peter Huang, in his memoir-styled law review article, raises a very basic question: Does legal education help students achieve career fulfillment and lifetime satisfaction? In other words, are we helping our students become happy?
Aristotle believed that all other aims in life devolve into the meta-goal of increasing happiness. "Happiness is the meaning and the purpose of life, the whole aim and end of human existence," he wrote (in Nichomachean Ethics). As a society, we often measure success according to more quantifiable metrics - whether such measures are GPA and class rank, or salary and U.S. News ranking. But such external measures do not guarantee, or even correlate, with the ultimate good of personal happiness.
Professor Huang, inspired by Amy Chua's Battle Hymn of the Tiger Mother and his own "tiger cub" childhood, examines whether a system that pushes achievement and cognitive intelligence helps achieve this ultimate good. He concludes that legal education, like "tiger parenting," does produce hard-working, analytic thinkers. But he also contends that both constructs inhibit the development of three key attributes that contribute to happiness, namely judgment and decision-making, emotional intelligence, and ethical character. Reforming legal education (and parenthood) to address these areas is essential, says Huang, if we as educators (and parents) hope to inspire life-long love of learning and sow the seeds of personal success.
Because I'm happy ~ Clap along if you feel like a room without a roof
(Note: This and all subsequent lyrics are from the chorus of Pharrell Wiliams' song "Happy.")
Throughout his memoir article, Huang references the social and professional costs of a "tiger mom" approach to education that neglects development of empathy and interpersonal skills. Huang opines that "mainstream modern American legal education and tiger parenting" both are "hierarchical, top-down learning environments, which entail authority, compliance, extrinsic incentives, fear, memorization, obedience, paternalism, precedent, and respect for one's elders." These methods can achieve cognitive success and strong work ethic, but they are inherently limiting as well. Authoritarian, top-down teaching fails to inspire passion for the law, and rewarding compliance with paternalistic systems caps individuals' potential. Huang speaks of the "bamboo ceiling" limitations faced by Asian Pacific American lawyers, who make up "almost half of all minority associates nationally" but only a small handful of law firm partners. He opines that perhaps this results from stereotypical over-obsequiousness among the ranks of APA associates. But if legal education achieves the same results as tiger parenting, Huang's concern regarding inherent career limitations is more broadly applicable. There is something systemically worrisome about a widespread teaching approach that creates cadres of submissive lawyer worker-bees.
Fostering the development of judgment, character, and emotional intelligence, on the other hand, can unleash unlimited professional and personal potential. When people tap into their passions, they achieve career success. In addition, being passionate about one's work allows one to enjoy the present, avoiding what Tal Ben-Shahar, in his book Happier, calls the "arrival fallacy" - the idea that only at the destination, rather than along the journey, does one find joy.
Because I'm happy ~ Clap along if you feel like happiness is the truth
In his article, Huang reminds the reader of an oft-neglected truism: "learning is not only informative, but can also be transformative and empowering." He concludes "parents and educators can and should make learning not only less depressing and stressful, but also more engaging and fun." After all, since happiness is the ultimate goal (per Aristotle), education should help students "be more engaged, happy, healthy, inspired, and resilient," and this will "foster happy, meaningful, and productive lives."
Another seemingly obvious truism that Huang necessarily articulates is that it is more important for a lawyer to have good judgment than vast knowledge. Lawyers are, after all, problem solvers, and their very livelihood depends on their ability to assess evidence, analyze outcomes and risks, and assist in client decision-making. "Good thinking" and "rationality" are thus more important lawyer values than mere cognitive intelligence. As lawyers and legal educators, we know this to be true. And yet, are we adequately fostering the development of good judgment in our students?
Because I'm happy ~ Clap along if you know what happiness is to you
Huang asserts that "much of current American legal non-clinical education teaches students that lawyering is just about logical analysis and not about feelings." But successful attorneys must recognize and respond to emotions in the many people they must interact with, including "attorneys, clients, judges, juries, and other legal actors." Huang cites an empirical study that showed that students with more positive emotions and emotional habits achieved greater success in negotiations (in terms of both individual and joint gains), course grades, and emotional health and mental wellness.
Lawyers are not known for being happy individuals. In fact, several recent scholarly studies have called attention to the fact that graduating law students are generally more depressed and more stressed than they were when they began law school. The legal profession also regularly struggles with lawyer addiction and depression rates. Efforts to improve emotional intelligence among law students could pay great dividends in these problem-areas.
Emotional intelligence also builds empathy, which is one of the most underrated attributes of good lawyering. Legal education can and should be concerned with assisting students' development of emotional intelligence, including "mindfulness, self-reflection, and creativity."
Because I'm happy ~ Clap along if you feel like that's what you wanna do
I once taught a required Professional Responsibility class and found rather shocking the dearth of student interest and engagement in the topic. If taught as preparation for the MPRE, the course devolves into memorization of ethical "rules." The study of legal ethics, however, could be so much more. Professor Huang agrees, pointing out that "one's character strengths, ethics, and professionalism are crucial to achieving happiness and satisfaction in school, work, and life." Although all law students are required to take a course in professional ethics, these classes as currently taught generally fail to inspire future lawyers to aspire to high integrity and character.
Rather than focus on cases in which lawyers are being disciplined for professional rule violations, Huang challenges legal educators to find ways in all courses to inspire students to develop their own noble, professional character and reputations. This sort of character-building goes deeper and is more fundamental than teaching a collection of ethical rules. After all, as Professor Martin Seligman, founder of positive psychology, explained, "[e]thics are the rules you apply to get what you care about. What you care about - your values - is more basic than ethics."
Huang's article is an entertaining, if rather rambling, narrative (a fact he acknowledges in his explanation of the piece's "memoir" approach). Nevertheless, the legal education themes and insights he articulates are of tremendous value to the academy. Rather than exclusively focus on how well legal educators are achieving the goal of teaching students to "think like a lawyer," Huang points out that we must consider whether our defined objectives are the most important ones. Perhaps feeling (empathizing and self-actualizing) "like a lawyer," using good judgment "like a lawyer," and being professional and ethical "like a lawyer" will lead to even better outcomes. Fostering judgment, emotional intelligence, and character-building will make successful lawyers, not only in terms of dollars earned and cases won but in terms of "career and life satisfaction" and "sustainable personal happiness."
[Read fulltext at SSRN (698 KB)]
Washburn University School of Law
David M. Moss, The Hidden Curriculum of Legal Education: Toward a Holistic Model for Reform, 2013 Journal of Dispute Resolution 19 (2013).
In sharing his insights into curriculum reform in legal education, David Moss recommends that law faculties committed to igniting such reforms at their law schools should change curriculums holistically and not resort to piece-meal, bandage repair. Specifically, they should do so by paying particular attention to the "hidden curriculum" within their programs of legal education. Moss encases the transformation of law school curriculums as part of the bigger discourse of what happens when the curriculum of any educational institution undergoes reform. Invoking educational theorists and philosophers outside the legal academy—from John Dewey to William Pinar—as his sounding boards, instead of cutting off the connection between education and legal education (as many have done), Moss emphasizes common and important thematic elements across all fields of instruction. In the law school setting, his "forest for the trees" approach addresses both the criticism that traditional law school teaching should better match the on-the-job expectations of our new graduates and the question of what it really means to teach our students to "think like lawyers."
What is the hidden curriculum of law schools? According to Moss, it is the subtext that our curriculums convey underneath the accumulation of offered courses for our students, and Moss picks out common hidden messages that many law school curricula reveal. For instance, a law school curriculum's emphasis on doctrinal courses over experiential courses might reveal that this school systemically values certain knowledge and instructional methods over others. In this way, a hidden curriculum tells us that schools do not just teach an aggregate of the courses in its own curriculum, but rather that the entire process of schooling is "a socialization process where students pick up messages through the experience of being in a school and interacting with faculty and peers, not just from things they are formally taught." The curriculum is then no longer just a foundation of required knowledge, but a vehicle for inducting our students into the legal profession. And what it presents in subtext speaks volumes about a specific school's entire program of legal education. For a deeper, more meaningful reform, we must look to what the curriculum says between the lines and whether that helps advance the education goals for our students.
Specifically, to deal with the pieces of curriculum transformation, Moss notes that the curriculum must encompass "action and purpose," stretching it toward a broader sense of conversation that our courses say to us, our students, and the professional community they will serve. If a school considers effective legal reasoning as consistent with practice-readiness and desires practice-readiness for its graduates, then what ways will its curriculum explicitly and implicitly convey this value to its students? This is where Moss compliments his introduction of the hidden curriculum with his use of transdisciplinary reform for planning changes to a curriculum that addresses both the hidden and the unhidden.
First, Moss posits that legal education is "an additive process of learning" so that "law faculty should consider curriculum programmatically—across every year of a program—as they engage in reform." Once the main purposes and values have been articulated—for instance, imparting legal reasoning, knowledge, practice-readiness, induction into the profession, etc.—the other part of this engagement should be holistic. Moss urges us to look for reform from a transdisciplinary perspective, where we start globally with the whole picture of the learning process before questioning ourselves about what we want our students to achieve upon graduation and finding knowledge within the subjects and courses that could resolve these questions.
By conceptualizing reform in this way, Moss suggests that "we must re-visit the question of practice-ready graduates" and to expect that our graduates should have obtained "a higher and richer perspective on the law and legal practice that draws from doctrinal, ethical, and other aspects of the profession." As normative as this may sound, Moss' transciplinary approach seems lucid and prescient in light of this month's changes by the ABA's Council on Legal Education. A transdiscplinary reform of a law school's curriculum could produce a program of legal education that "purposefully and systemically helps law students understand how the various elements of their professional practice fit together." It would be an approach that "empowers" us to acknowledge what misinformed messages our traditional law curricula inadvertently convey to our students and avoid "merely cobbl[ing] together programmatic elements that disjointedly address these various outcomes." What this method ultimately renders out of a curriculum is an important and robust interaction with the law student over the course of his or her schooling, rather than just a catalogue of courses to complete. Curriculum, after all, is not just about what subjects we teach, but, of course, who we are teaching.
[Read fulltext at Journal of Dispute Resolution website]
University of Massachusetts School of Law-Dartmouth
James Moliterno, A Way Forward for an Ailing Legal Education Model, 17 Chapman Law Review 73 (2013).
In this article, Professor Moliterno makes some interesting observations and describes the modified 3rd year program at Washington and Lee.
Initially, the article dispels the notion that the reason legal education is "in trouble," is due only to current economic events of the last decade. Instead, Moliterno suggests that the "root of the problem" is really the late nineteenth century reforms of legal and medical education and the dichotomy of approaches adopted by the reformers in those two fields.
Whereas medical schools decided their mission was to produce doctors and reformed their education process accordingly, legal education instead mimicked the model found in graduate schools such as philosophy and history and decided the mission of law schools was to produce professors.
Moliterno suggests that the current crisis is the result of that mistaken course, which was embarked upon much earlier than the recent economic upheaval. He points out that legal education traditionally did and continues to do one thing brilliantly; it teaches the critical thinking skills necessary to analyze appellate opinions. Rather than denounce this, he applauds the excellence achieved in this arena but suggests that the problem is we currently do it for all three years rather than for only two years. We should not do away with the third year of law school but rather should use that third year to teach a different skill. The skill of practicing law.
He uses Washington and Lee's third year model as an example of this change and summarizes the entire process as including a mandatory year of experiential education. The article describes the specific methodologies employed by Washington and Lee in detail.
What is innovative about the article is that it tangibly identifies and labels the pedagogical goals of this reformed third year curriculum. The basic goal is for the students to mentally transition from critical thinking to learning law the way lawyers do.
This involves more specifically, learning law, acquiring a business sense, practicing as part of a team, managing projects, solving problems, and generating and implementing plans for clients. The students describe the reformed third year as an intense immersive experience. In fall every third year student takes a litigation immersion class where they do everything from client intake interviews to pleadings to trial; in spring they take a transactional immersion class where they represent either buyers or sellers in a multimillion dollar transaction and develop and handle all the typical documents involved.
Early empirical data based in part on the (LSSSE) survey show marked increases in third year student engagement and student preparation for class. Read the article and at least think about what Professor Moliterno is saying. What was comforting for me is that his article suggests a reform that is not only a way forward for American Legal Education but is also entirely consistent with legal education reforms in China, India, Pakistan, and western and eastern Europe. That similarity, it seems, is no coincidence but reflects a universal commonality about law and its practice in an era of globalization and, at long last, the incorporation of adult learning theory.
[Read fulltext at Chapman Law Review website]
Julie Spanbauer, Lost in Translation in the Law School Classroom: Assessing Required Coursework in LL.M. Programs for International Students, 35 International Journal of Legal Information 396 (2007).
Like many other law schools around the country, my institution is launching an LL.M. program for international law students. While we already enjoy some outstanding foreign law students in our JD program, this new venture will increase the number of ESL students on our campus significantly. Everyone on the faculty will need to think more deeply about the unique needs, challenges, and talents our international and domestic ESL students bring to the classroom.
Professor Julie Spanbauer of the John Marshall Law School has devoted a good portion of her scholarly agenda to exploring the role of culture in law and legal education. For anyone who has ever attempted to review the primary research in the ESL field, you may have experienced to a small degree what ESL law students do when they attempt to enter a new discourse community and legal culture. In "Lost in Translation," Professor Spanbauer has done a great service to legal educators by doing some translating of her own: she summarizes in plain language some of the key concepts from post-secondary ESL education and contextualizes them for the law classroom—particularly the legal writing classroom.
For example, did you know that the emphasis on subject-verb-object sentence structure in English conveys a constant emphasis on causality that is not always present in other languages and cultures? Educators need to be aware of these types of cultural expectations so that they can discuss them with students.
The article provides several more examples, offers suggestions for improving course content, and supports her points with survey evidence and interdisciplinary authorities.
[Read fulltext at SSRN]
William Foster and Emily Grant, Memorializing the Meal: An Analogical Exercise for Transactional Drafting, 36 University of Hawaii Law Review (2014).
How can we teach law students skills that are critical to their success in practice? Those skills range from fundamental legal analysis, such as case synthesis and statutory interpretation, to drafting sophisticated documents, such as contracts, wills, and patent licenses. For transactional lawyers, critical practice skills include the flexibility and creativity to anticipate contingencies and draft agreements to help clients achieve their goals.
Professors Grant and Foster make a strong case for the use of non-legal, familiar events to teach a variety of skills. The foundation for their article is a core concept from the adult learning and cognitive science literature - "adult learners flourish when teachers make explicit connections between students' past experiences and prior learning." The authors present several examples from the legal education literature that use non-legal analogies to teach legal analysis and lawyering skills:
- Legal method, argument, and ambiguity - placement of vegetables in a grocery window;
- Rule synthesis - comparing pieces of art owned by a collector;
- Rule statements, case analysis, statutory interpretation, and legislative process - analyzing parents' policies governing social activities of their children; and
- Predictive legal analysis - advising a young woman about proper attire for her first job.
The heart of the article is an extensive example of the use of non-legal analogy in an upper-level transactional drafting course. The exercise is designed to help students anticipate contingencies and then draft an effective agreement to deal with those contingencies in a way that achieves the client's goals. The innovative method the authors employ is to have the students plan a dinner party, exploring in detail the contingencies that may arise, and draft an appropriate agreement.
The authors include useful appendices to help a teacher adopt or adapt this exercise - a handout for students, an example of a compete exercise, and a sample agreement. In addition, the article is just plain fun to read. The authors are gifted writers with well-developed senses of humor. For example, the careful reader will learn the critical importance of coleslaw to a barbeque sandwich in some regions of the U.S. Most law review articles do not offer such important insights...
[Read fulltext at SSRN]
Bradley T. Borden, Using the Client-File Method to Teach Transactional Law, 17 Chapman Law Review 101 (2013).
Faced with a systemic identity crisis, a pedagogical reality-theory disconnect, and calls from all quarters to graduate "practice-ready" lawyers, the legal academy has been desperately seeking ways to incorporate lawyering skills into the curriculum. In his forthcoming article, Brad Borden adds his voice to the chorus singing the praises of a business school approach to teaching transactional law. Borden's approach, dubbed the "Client-File Method," aims to mimic the training junior transactional associates once received in law firms - back when they were willing to devote time and resources to bringing new attorneys up to speed.
Borden builds upon prior work of Celeste Hammond, Tina Stark, Karl Okomoto, Ronald Gilson, and Kenneth Klee (and many others) who have advocated the incorporation of the "case method" used in business school and medical school into the teaching of transactional law. The approach is simulation-based, integrates skills, doctrine and ethics, and generally addresses the "bridge the gap" mandate of the MacCrate and Carnegie Reports. Many of these prior works - as well as much of the literature on the case-method approach that originated in Harvard Business School in 1925 - discusses why an intense, reality-based, role-play simulation provides students the professional training they need to succeed beyond school. Borden's article quickly embraces this theory and then delves into the nitty-gritty how-to questions of crafting a case-method course, describing in detail the resources needed to successfully incorporate the client-file method in an upper-division transactional class.
The beauty of Borden's concise piece is its accessibility. Although the pedagogy of transactional law teaching has been the focus of an increasing number of articles, conferences and innovations, there still remains a rather embarrassing divide between the few members of the academy who theorize about transactional law teaching methods and the many professors who teach numerous and varied courses offered in business and transactional law. Borden's quick how-to demystifies the simulation-based approach for professors who have not been following the "conversation" about why context-building and skills-incorporation is crucial. As such, it allows mass marketing of the client-file method concept and outlines easy-to-follow (although admittedly labor-intensive) steps to achieving the practice-ready outcome. Preparation for the client-file method involves putting together a client file for a simulated transaction. The file includes memos (perhaps styled as senior partner directives) that provide factual background and give instruction to students, financial information on and related to the client and transaction, and pertinent legal documents.
If you teach any transactional course - even if you have not been reading about business school methodology or practicum-focused theory - you should read this short article and consider adopting Borden's approach. In this new world of practice-readiness, students must add enough value to justify their billable rate - even in their first day on the job as a transactional lawyer. The client-file method will likely help them do just that.
[Read fulltext at Chapman Law Review website]
Washburn University School of Law
Carl Circo, Teaching Transactional Skills in Partnership with the Bar, 9 Berkeley Business Law Journal 187 (2012).
In his Berkeley Business Law Journal article, Professor Carl J. Circo explores the legal education reform movement as it relates to transactional practice skills, collecting the myriad conversations about what our law students need and proposing a creative partnership between the bar and the academy to help meet that challenge.
Professor Circo provides observations and suggestions from the ABA Standards and taskforces, the NALP Foundation roundtable conference series, and a white paper issued by the National Institute for Trial Advocacy. He also offers a unique look at what the profession wants from new graduates by recounting comments from practitioners at recent conferences, as well as by summarizing results from a survey Professor Circo administered to law firm training and development professionals about the skills that entry-level transactional lawyers need. Through this examination, Professor Circo's article paints a telling picture about the concerns of practitioners. Although "[d]ifferent bar organizations and lawyers offer many alternative perspectives on the goals of legal education," Professor Circo identifies a few larger themes that emerge. Practitioners stress the need for teaching "general competencies" of business practice, including creative problem solving, project management, teamwork, risk assessment, and flexibility.
Professor Circo also explores the current discourse within the academy about transactional skills education, detailing presentations and conversations from various symposia and conferences, and concluding that, while progress is being made to increase skills instruction in transactional courses, several competing factors including budget and professional inertia restrict reform movement. "[L]aw schools are paying meaningful and productive attention to the transactional skills gap. . . . What is less certain is whether transactional skills advocates have the strength, support, and perspicacity required to achieve meaningful change across a wide spectrum of the legal reform movement."
By way of a proposed solution, Professor Circo suggests increased partnership between law schools and the bar. He notes that researchers need to gather more empirical data to define and evaluate the skills gap. He emphasizes the importance of all stakeholders in legal education to advocate and support innovation and experimentation. And he calls for increased collaboration between the legal academy and the legal profession to identify how law schools might involve practicing lawyers directly in teaching to facilitate the transition from law school to practice.
[Read fulltext (637 KB PDF)]
(Originally published in the Berkeley Business Law Journal 9.2 (2012). Redistributed with permission of the publisher.)
Nancy Rapoport, Rethinking U.S. Legal Education: No More Same Old Same Old, 45 Connecticut Law Review 1409 (2013).
Professor Rapoport begins this article with the well-supported premise that, "Teaching students how to think about the law is no longer-and probably never was-enough." But she doesn't stop there. The article presents a well thought out, empirically supportable, alternative to the current, typical (and empirically unsupportable) law school curriculum.
Law School, according to Professor Rapoport, should be divided into three distinct phases, each with a specific outcome in mind. This outcome based curriculum provides lawyers with the actual skills they need to be practicing lawyers rather than the very limited skill of gleaning fine details from court opinions honed by the Socratic Method."
The aim of the first year of law school should be dedicated to "Creating the Skilled Novice." The second year of law school should result in students becoming "Novice Problem Solvers." Finally, the third year of law school should be devoted to "Creating a Novice Professional with Basic Judgment." Professor Rapaport describes in detail the aspect, aims, and characteristics of this three-phased law school curriculum.
The empirical bases of Professor Rapoport's suggestions are well documented in detailed and comprehensive studies such as Best Practices, Carnegie, and McCrate (which most of legal academia has blatantly ignored thus far). Professor Rapoport suggests the following reasons why legal academia continues to ignore solid education:
- "Law Professors have a cushy life." In our current, high-salaried jobs, "we get to study what we want" and we don't have to worry about putting "the client's interest first."
- Most law professors are blissfully ignorant of education theory and research.
- Law schools reward the production of scholarship rather than the "painstaking amount of time it takes to think seriously about the curriculum, develop new courses that reflect the building of skill sets over time, determine better ways to evaluate whether a student is actually developing those skills, and recalibrate the curriculum," if outcomes are not being achieved.
The larger and more troubling question is whether perpetuating the inertia driven Socratic, legal education charade has now become an ethically questionable endeavor in light of the sound and copious educational research compiled against it. A colleague of mine suggested that the real reason for the adherence to discredited methodology in legal education is laziness. Surely that can't be right, even though I have not heard a more credible alternative for the resistance to change.
[Read fulltext at Connecticut Law Review website (1.2 MB PDF)]
Paula J. Manning, Understanding the Impact of Inadequate Feedback: A Means to Reduce Law Student Psychological Distress, Increase Motivation, and Improve Learning Outcomes, 43 Cumberland Law Review 325 (2012).
"Law students report lower self-esteem and life satisfaction than students enrolled in other graduate programs, including medicine, and they are far more likely to experience depression, anxiety, and stress." This problem does not end with law school, however, "the legal profession is plagued by higher than average rates of depression and substance abuse, as well as lower job and life satisfaction than other professions." Despite these known facts, legal education has proposed very few solutions to dealing with law student psychological distress. The article posits an answer to why there have been no solutions to this matter: prior to 2011, law school applications remained quite stable with a large group of willing participants. Now that applications are down across the country, coupled with pressure from the ABA for law schools to make changes to their curricula, the article proposes that this might be an excellent time to look at changing education to lower law student's psychological stress.
The article starts by discussing the effects of self-determination on learning, engagement, and motivation. It identifies three basic psychological needs necessary to ensure our students' well-being and ability to thrive: autonomy (students' inner endorsements of actions and behaviors), competence (students' feeling both able to be effective and having the opportunity to maintain and enhance competence), and relatedness (students' feeling connected and important to the teacher). Curriculum and feedback aimed at these three needs has the potential to "alleviate or at least reduce the negative effects of legal education on law student well-being and motivation and the associated effects that appear to extend beyond graduation into the profession."
The article continues by explaining how to support self-determined learning through feedback. Essentially, feedback should: "(1) us[e] non-controlling, informational language; (2) provid[e] rationales; and (3) [affirm] competency. The article explains the harm in using large Xs and No!s as well as constantly putting the word "why" on a student's paper. These methods do not support a student's self-determined learning because the feedback does not support competency or provide rationales. Further, the article urges the assessor to provide "specific, sincere, and credible praise" which goes beyond "good." The feedback suggested in the article allows the student to choose how to proceed rather than being controlled by the teacher as to how to proceed, thereby supporting autonomy. Good feedback then has the power to "minimize or even alleviate the negative psychological effects legal education has on law students."
[Read fulltext at SSRN]
Douglas A. Guiffrida, et al., Do Reasons for Attending College Affect Academic Outcomes?: A Test of a Motivational Model From a Self-Determination Theory Perspective, 54:2 Journal of College Student Development 121 (2013).
We have long heard that students who are intrinsically motivated perform better in higher education than those who are merely extrinsically motivated. For example, a primary desire for personal growth is a more positive indicator of success than a primary desire to avoid poor grades. The two types of motivation can exist side-by-side in a successful student, but a strong intrinsic motivation must balance other drivers. At the same time, other research indicates that student-faculty rapport is one of the most important factors in both student and teacher success. In the forthcoming Harvard University Press study, What the Best Law Teachers Do, Institute faculty members Gerry Hess, Michael Hunter Schwartz, and Sophie Sparrow emphasize the pivotal role that relationships play in student perceptions of teacher efficacy.
With these generally accepted principles in mind, what is the relationship between intrinsic motivation and student-teacher relationships? A recent study by faculty at the University of Rochester's Warner School of Education begins to fill that gap in the literature. In a survey of 2,500 college students, researchers found a strong correlation between GPA performance and students who attend college motivated by the goal of building relationships with faculty and staff. This was true even when factors such as socioeconomic status were statistically removed. As for other intrinsic motivators, a primary motivation to socialize with peers was related to lower GPAs, particularly for male students. An altruistic desire to obtain an education in order to serve one's family and community had a weaker correlation to GPA among white students, and a stronger correlation among students of color, ostensibly due to socioeconomic concerns.
As the authors note in their conclusions, these findings offer ideas for how to counsel students who are struggling academically. Perhaps the most important insight we can glean from the study as law teachers is how we model the importance of student-faculty relationships to our law students both in and out of the classroom.
Todd F. Pettys, The Analytic Classroom, 60 Buffalo Law Review 1255 (2012).
Professor Pettys begins his article with the following quote from Karl Llewellyn, "We have learned so relatively well how to do one kind of teaching that we sit Narcissus-like before the pool. We go on teaching cases–and do too little teaching else. Well, then, so be it."
The article suggests that the downturn in the economy has created a "sense of reformist urgency among legal educators." This reform movement has forced legal educators to examine whether traditional Socratic legal education achieves the stated goal of cognitive training or teaching lawyers to think like lawyers.
The empirical research based on three recent studies cited in the article suggests that Socratic legal education does not succeed. Pettys therefore offers three alternative teaching methods that actually achieve the goals the Socratic teachers mistakenly believe they are achieving in their classrooms. The first of these suggestions is the flipped classroom. The flipped classroom combines online and face-to-face instruction and resulted in 35% better learning outcomes for students.
Second, Pettys suggests and describes a method that involves problematizing through premise-identification. This method involves classes as a whole understanding the basic assumptions of a court opinion and then working together to identify flaws in the argument and to identify and discuss ways those flaws could be addressed.
The author also suggests:
- Socratic writing which results in more precise legal arguments than oral work. When combined with the appropriate technology, such as laptops projecting onto a screen visible by the entire class, the students' writing could easily become an analytical launching pad for class discussion.
- Reverse engineering exams or having students draft examination questions based on the doctrine they have already covered in a class and challenging the rest of the class to try to issue spot and construct what they think the perfect answer would be.
- Interdisciplinary critiques or incorporating other disciplines such as economics, sociology, political science, philosophy, which can, in the author's view, "shed light on the legal system and the choices actors make within it."
- Ends-Means thinking and confronting the unknown where students evaluate "a range of possible outcomes for a client and a range of possible means of achieving those outcomes."
This is a well-researched article on the efficacy or lack thereof of particular legal pedagogical techniques, and it suggests alternative approaches to teaching that are all well thought out and supported by solid educational research.
[Read fulltext at SUNY Buffalo website (463 KB)]
Neil Hamilton, Effectiveness Requires Listening: How to Assess and Improve Listening Skills, 13 Florida Coastal Law Review 145 (2012).
In this article, Professor Neil Hamilton first reinforces the importance of listening skills for lawyers and then shows us how we can help our students develop theirs.
Empirical research . . . indicates that people whom others perceive as the most effective individuals have strong listening skills. . . . [T]he most influential individuals had a common ability to encourage others to talk openly about high-stakes, controversial, and emotional topics. These individuals found a way to get all the relevant information from others and themselves out in the open. [page 145; footnotes omitted.]
Summarizing the research about listening skills for lawyers, Hamilton refers to multiple studies that show how instrumental listening is in developing client relationships, working well with colleagues, and practicing many other lawyering tasks. For students who are more interested in speaking about the law than listening, this research may help persuade them that learning to listen well is important in law school and their future careers.
Hamilton further explains listening's complexities, such as listening for inferences, listening for overall themes, and listening for emotions. He describes the usefulness of silence and explains how different listening skills contribute to academic success. He acknowledges the awkwardness that students may feel when practicing active and passive listening skills, and suggests ways to work through that discomfort.
One of the best features of this article is that half the article is dedicated to six listening exercises. Detailed self-assessment inventories ask students a series of questions like "I look at my cell phone (i.e., to check the time or emails) during conversations with others" and "I ask questions to help the speaker clarify and reflect." A scoring system helps students understand their listening strengths, weaknesses, and preferences. Role-plays, observations, and reflections further provide opportunities for students to practice and get feedback on their listening skills.
We spend a great deal of time teaching students to think, speak, and write like lawyers. This article helps us teach them to listen as well.
[Read fulltext (564 KB PDF)]
(Reprint courtesy HeinOnline.org)
Heather Garretson et al., The Value of Variety: A Professor's Guide, J. of Leg. Ed. (forthcoming) (2013).
Are you eager to try something new in your classes but bereft of ideas? Do you believe that using a variety of teaching methods facilitates learning but lack the time to generate new ideas?
In a forthcoming Journal of Legal Education article, Professors Heather Garretson, Jane Siegel, Tonya Krause-Phelan, and Kara Zech Thelen promise and deliver a bevy of ideas, 80 in all, categorized, for easy reference, by the skill or value each exercise aims to teach.
The article offers benefits to law teachers on three different levels. First, the article is filled with great ideas. Because I don't want to spoil your fun, I will only share one idea they entitled "Mud Cleaning." The idea is a terrific variation of the well-known muddiest point classroom assessment technique, in which a teacher asks all her students to jot down what is muddiest, i.e., most confusing, in a class session or, more generally, in the course. In the authors' words, here is their idea:
This is a variation of the muddiest-point index-cards exercise . . . Pass out index cards to the class. Then have students write on the card what they think is the muddiest point of the material covered (either in today's class or to date). Collect the cards. Then pass them back to the class, mixing them up so students don't get their own cards. The recipient of a card now writes, on the reverse side, a clarification of the muddy point on the other side. At the start of the next class, collect all the cards. Read some of the muddy points and the clarifications on the flip side.
Second, the project that led to this article offers a great model as a stand-alone tool for law teacher development. The authors report the results of their semester-long effort to generate new ideas in their own teaching. You will have to read the article to decide for yourself whether to emulate their project.
Finally, the authors' categories are themselves helpful. Want an exercise that gets your students speaking? The authors offer 14 such exercises. Do you believe that students learn best when they are writing (instead of searching for a good eBay bargain)? You can select from 45 writing exercises.
I plan to use mud cleaning in my next class. I hope you find the authors' ideas equally useful.
[Read full article (577 KB PDF)]
Barbara Glesner Fines, Lessons Learned about Classroom Teaching from Authoring CALI Lessons, 38 William Mitchell Law Review 1094 (2012).
Barbara Glesner Fines is a leading voice in the field of law school teaching and learning, including computer-assisted legal instruction. Consistent with her other scholarship on teaching and learning, this article is clear, concise, and insightful. In this article, she draws five important lessons for law teaching from her experience as an author and editor of CALI lessons.
- Good Teaching is Good Scholarship. Writing a law review article, authoring a CALI lesson, and preparing for classroom teaching all benefit from the same process - thorough research, careful analysis, and peer review.
- Choosing a Destination is Half the Battle. Clear learning objectives for students are a fundamental aspect of good teaching. These questions can help teachers identify objectives for a CALI lesson or classroom session:
- Where in the students' learning does this lesson come? Is this lesson primarily for background instruction, enrichment, or review?
- How deep into the doctrine should the lesson delve? How many exceptions to the general rule are necessary or helpful? How many examples?
- What level of proficiency does the lesson expect?
- From what standpoint is the student learning? As a policymaker? A lawyer practicing in a particular setting?
- It's about the questions. CALI lessons and Socratic dialog both depend on quality questions. Effective teachers formulate initial questions based on their goals for the lesson or class. Keys to success in either format include how the teacher responds to student responses, what feedback the teacher provides, and the follow-up questions teachers ask.
- The Wrong Answers Are the Most Important Questions. Wrong answers from students provide critical pathways to learning. First, wrong answers can reveal fundamental misunderstandings that need to be addressed. Second, lasting learning can occur when students get answers wrong the first time and then work to understand why their initial answer was wrong.
- The Student's Viewpoint Counts. When designing lessons that students encounter in the classroom or on the computer, variety is a virtue. A variety of activities and modalities (visual, auditory, etc.) enhance learning. Then, after the lesson or class, feedback from students about what was most and least effective can help teachers continuously improve.
This article ends with a call to action for teachers to thoughtfully address student learning both in and out of the classroom.
Faculty spend a great deal of time thinking about classroom teaching--how to engage, energize, entertain, and enlighten their students for the two or three hours per week they are together. But most student learning does not take place in the classroom. Students spend an average of twenty-seven hours a week reading and preparing for their classes. Authoring a CALI lesson requires faculty to attend to the many aspects of teaching that take place in those twenty-seven hours--the reading materials and learning exercises that students are assigned or undertake on their own. Giving attention to this aspect of student learning causes a reconsideration of the effective and efficient use of the class time; the discipline of preparation; the clarity of learning goals; the questions, answers, and misconceptions that class time can address; and the many ways in which students learn.
[Read full text at William Mitchell website. (201 KB PDF)]
Robin Wellford Slocum, Educating Students About the Emotional Factors that Can Undermine Their Analytical Thinking, Legal Reasoning, Writing, & Other Lawyering Skills (3rd ed., 2011).
This review stems from two articles written by Robin Wellford Slocum of Chapman University School of Law. The first, "Educating Students About the Emotional Factors that Can Undermine Their Analytical Thinking," is published in Legal Reasoning, Writing, & Other Lawyering Skills, Chapter 4, 3rd ed. (LexisNexis, 2011). The second is "An Inconvenient Truth: The Need to Educate Emotionally Competent Lawyers," available on SSRN.
Both the chapter and the article deal with the same issue, that of teaching emotional competency. These two scholarly works describe the process of teaching our students to "think like an emotionally competent lawyer[s]," which includes understanding the emotional brain and the thinking brain and their interconnectedness. Slocum emphasizes how the emotional brain oversimplifies the world (black/white; right/wrong; etc.). The emotional brain also discounts evidence that one's initial instincts may be wrong while over-emphasizing evidence that proves one's initial instinct was correct. In this way, the emotional brain tends to highjack the thinking brain. This myopic lens, if left unexamined and unchecked, can lead to inaccurate legal conclusions based on a limited world view. This lack of perspective and judgment can make accurate evaluation of the law and client needs difficult.
To solve this problem, the author suggests helping students to understand and then address the emotional biases and selective perceptions that may be causing their limited world view. Law professors can accomplish this with brief exercises or more in-depth curriculum changes, both described in these two pieces. The ideas can be minor, short-in-duration exercises added to existing classes, such as exercises aimed at getting at students' automatic responses to different situations. Ideas can also be broader based such as the addition of courses focused exclusively on developing emotional competence.
[Read fulltext at SSRN]
Sylvia Hurtado, et al., Undergraduate Teaching Faculty: The 2010-2011 HERI Faculty Survey, Higher Education Research Institute.
This month's recommended article is a survey report from UCLA's Higher Education Research Institute. The survey as been summarized by Scott Jaschik in his Inside Education post "Teaching, Stress, Adjuncts." Although the survey addresses full-time undergraduate faculty rather than graduate or law professors, it raises important questions overall about student-centered teaching practices, as well as various faculty status and quality of life issues. This synopsis will focus on the reported use of student-centered teaching methods.
The survey identifies nine categories of "student-centered teaching and evaluation methods," including student presentations, peer evaluation, class discussion, cooperative/small group learning, experiential learning and field studies, group projects, student-selected topics for course content, reflective writing and journaling, and the use of student inquiry to drive learning. The survey asked about several additional forms of assessment and teaching methods that could be considered student-centered, including information about the use of various writing assignments, quizzes, and so on.
Interestingly, women professors tend to use student-centered methods more frequently than men. In addition, women use "extensive lecturing" far less often than men. For most of these teaching methods, the gender disparity becomes even more pronounced in science and mathematics. At the same time, however, both men and women professors increased their use of certain student-centered methods over the last decade, even while lecture use held relatively steady. The student-centered methods that increased were class discussion, cooperative learning, and student presentations. The report does not note whether other forms decreased or stayed the same.
Perhaps unsurprisingly, in most situations faculty reported using student-centered methods less often as class sizes increased. Because we know that a number of student-centered techniques can be large-class friendly, it may be worth evaluating whether the survey needs to add additional methods to its questionnaire, whether educators would benefit from greater exposure to large-class techniques, or perhaps both. The exhibits contain data regarding professional development, but the survey did not appear to ask about opportunities for in-house teaching workshops.
With some adaptation, the HERI faculty survey may provide a useful starting point for future empirical study of law professors' use of student-centered methods for both teaching and assessment.
[Read full text of survey (1.2 MB PDF)]
Peter Lorain, Teaching That Emphasizes Active Engagement: Improving Learning for Middle School Students (+ bonus article), National Education Association website.
Two excerpts found on the National Education Association's website may be short but they offer very useful insights to law teachers.
"Teaching that Emphasizes Active Engagement: Improving Learning for Middle School Students" can be found at http://www.nea.org/tools/16708.htm.
This short article reminds us that classroom presentation is only one aspect of effective teaching. To teach effectively, you must do the following:
- Prepare effectively including:
- Thoroughly learn/understand the curriculum.
- Identify teaching objectives and strategies that engage students and build understanding.
- Ask yourself these planning questions:
- What is the goal?
- What order does the teaching need to follow?
- What do the students already know?
- What do you want them to learn?
- Prepare the lecture or instruction of the concepts and skills, based on your goals.
- Construct processing/learning activities that match the concepts, skills, and goals.
- Make Effective use of classroom time which includes:
- More than lecturing; and
- Designing classroom presentations in a way that "help[s] students draw on their experiences to build a scaffold on which they can hang new ideas."
- Engage in Processing Activities that "cause students to pose questions, manipulate information, and relate the new learning to what they already know."
"12 Principles for Brain-Based Learning" is also available on the NEA website at http://edweb.sdsu.edu/people/cmathison/armaitiisland/files/BBLrngPrin.pdf.
This article lays out twelve principles for effective teaching based on neuroscientific research. The similarity between these principles and the recommendations made by the Carnegie and Best Practices reports is worth examining. For example the article and the reports both imply, "Any complex subject is given meaning when embedded in real experience" and "Effective education must give learners an opportunity to formulate their own patterns of understanding. That means learners need a chance to put skills and ideas together in their own way." In other words the article provides neuroscientific support for many of the recommendations of the Carnegie and Best Practices reports.
These two articles should at least give us pause before we conveniently dismiss learning theory which also strongly and inconveniently suggests that, as law professors, we need to do more work to be effective teachers.
[Read fulltext of Lorain article]
Carol Springer Sargent and Andrea Curcio, Empirical Evidence that Formative Assessments Improve Final Exams, 61 Journal of Legal Education 379 (2012).
This article reinforces the idea that formative assessments help most students improve their grades and performance on exams. The study performed by the authors provides this reinforcement through evidence that formative assessments do help students improve their performance on final cumulative exams. This addresses some of the concerns regarding integrating formative assessment into large-section, doctrinal classes. Prior studies have shown using formative assessment improved performance on final exams but only for students with above-median LSAT and UGPA numbers. The study performed by the authors and discussed in the article endeavored to build on those previous studies.
The results showed formative assessments had a positive impact on students above and below-the-median first year law school grades. This conclusion is only true, however, if those students were not in the bottom 1/3 of the class in terms of either UGPA or LSAT scores. Those bottom 1/3 students were still unable to take advantage of the formative feedback. Seventy percent of the intervention group, however, benefited nearly one letter grade from the formative assessment materials. This article provides additional scientific evidence that, at least for the top 70% of students, formative assessment improves learning and improves performance on a cumulative final.
[Read fulltext at Southwestern Law School website (3.2 MB PDF)]
Anthony Niedwiecki, Teaching for Lifelong Learning: Improving the Metacognitive Skills of Law Students through More Effective Formative Assessment Techniques, 40 Capital University Law Review 149 (2012).
Many law professors assert that, because they cannot teach every doctrinal rule and case in their fields, they instead seek to produce students who are expert in learning in their fields. In this outstanding article, Anthony Niedwiecki of John Marshall Law School in Chicago explains how law professors can train their students to be expert learners. He argues that practice-ready law school graduates are prepared for lifelong learning, a trait he asserts "goes to the core of what it means to be a lawyer." The article therefore articulates how law professors can use the formative assessment process to improve the metacognitive skills of law students so they are more successful at transferring their learning to the situations they will encounter in the practice of law.
The article explains the concept of metacognition and its role in preparing students to be self-regulated learners. It discusses the components of metacognition, its role in law school, and the current push to include better metacognitive training in law school. The article then details how formative assessment can be better utilized in improving the metacognitive skills of students. The core of Niedwiecki's recommendations is altering law schools' focus from products (exams, memos, briefs, etc.) to process (the metacogniitive processes involved in learning these skills). Niedwiecki argues that formative assessment provides data law professors can use to improve their teaching, and that, by providing optimnal feedback, law professors can "provide an opportunity for the student to engage the professor in a discussion about the learning and the assignment, correct misunderstandings, develop a deeper understanding of the goals of the course and assignment, and provide immediate clarification and help with any difficulties." Particularly crucial, according to Niedwiecki, is using tools that allow students to engage in self-assessment, which helps students build their metacognitive skills. In particular, he explains how law teachers can use pre- and post-evaluation assessment instruments and portfolios to help their students build these skills.
For law teachers who really do want to produce expert, lifelong learners, this article is a must.
[Read fulltext (909 KB PDF)]
(Reprint courtesy HeinOnline.org)
Marianne Bakia et. al., Evaluation of Evidence-Based Practices In Online Learning: A Meta-Analysis and Review of Online Learning Studies, US Department of Education (2010).
Do you have opinions about the effectiveness of online courses? Traditional face-to-face courses? Courses that combine face-to-face and online instruction (blended courses)? Would you like empirical evidence to inform your opinions? This report from the US Department of Education is a rigorous analysis of methodologically sound empirical studies that address these questions.
Methodology. The researchers began with a search of the educational literature from 1998-2008 and identified more than a thousand empirical studies of online learning. The authors then screened the 1132 studies to find those that (a) contrasted online or blended instruction to face-to-face instruction, (b) measured objective student learning outcomes (rather than student or teacher perceptions of course quality) in online, blended, and face-to-face formats, and (c) used a rigorous research design, including treatment and control groups. Only 45 studies satisfied these conditions. Of those studies, most involved higher education (37 undergraduate, 4 graduate) and many assessed professional education (18 medical; 10 teacher development). None of the studies addressed legal education.
Results. Major findings of the meta-analysis of the 45 empirical studies include:
- Students in online learning situations performed better than those receiving only face-to-face instruction.
- Instruction combining online and face-to-face elements (blended instruction) had a larger advantage relative to purely face-to-face instruction than did purely online instruction.
- The positive learning effects of online or blended courses were strongest when the online instruction was instructor directed or when students worked collaboratively, rather than circumstances where students worked independently.
- Student learning in online and blended course was enhanced when the course incorporated mechanisms that promote student reflection and self-monitoring of their level of understanding.
Implications. This report has significant implications for legal education practice and research. Simple existing electronic resources make it relatively easy to incorporate elements of online instruction in law courses. For example, platforms for course websites such as Blackboard and TWEN facilitate online discussion, quizzes, and wikis. CALI has hundreds of lessons designed for a wide variety of law courses. The absence of legal education studies in the report highlights an important research opportunity. Many law teachers are experimenting with online elements in their courses. It is time to engage in rigorous assessment of the effects of those experiments on student learning. This report is an excellent starting point because it identifies the characteristics of high-quality empirical research of the effectiveness of online, blended, and face-to-face instruction.
[Read fulltext of report (1.2 MB PDF)]
Louis N. Schulze Jr., Alternative Justifications for Academic Support II: How "Academic Support Across the Curriculum" Helps Meet the Goals of the Carnegie Report and Best Practices, 40 Capital University Law Review 1 (2012).
This article does two important things. First it summarizes the Carnegie and Best Practices reports on legal education and lists their main findings and recommendations. Many of us have a general idea of the reports' contents but are less clear about the detailed, tangible findings and recommendations of the reports.
Next this article mitigates what would appear to be monumental and labor intensive reforms the reports recommend by pointing out that many academic support programs and professionals already utilize the pedagogical approaches suggested by the reports. As a result, law schools can meet the challenges of the Carnegie and Best Practices reports by making more expansive use of academic support programs. Professor Schulze identifies eleven discreet areas where Academic Support programs already employ methodologies which are congruent with the reports' recommendations. Academic Support Programs:
- increase opportunities for formative assessment;
- make teaching explicit;
- generate future lawyers who are "self-regulated learners";
- foster an environment where "faculty with different strengths work in a complimentary relationship" instead of a "collection of discrete activities without coherence";
- crystallize institutional intentionality and assist in institutional assessment;
- support autonomy, provide a healthy learning environment, and "create a campus culture that is a positive force";
- fully commit to preparing students for the bar exam;
- use multiple methods of instruction and reduce reliance on Socratic Dialogue and the Case Method;
- train students on receiving and using feedback;
- assess whether students learn what is taught; and
- ensure that summative assessments are also formative assessments.
Professor Schulze also examines in detail, the specific Academic Support methodologies currently employed by Academic Support Professionals.
This article is a must read for individual professors or administrators seriously considering how to incorporate the recommendations of the Carnegie and Best Practices reports in the least disruptive and most seamless fashions, by making use of preexisting institutional structures and programs.
[Read fulltext at SSRN (2.17 MB PDF)]
Paula Schaefer, Injecting Law Student Drama Into the Classroom: Transforming an E-Discovery Class (or Any Law School Class) with a Complex, Student-Generated Simulation, 12 Nevada Law Journal 130 (2011).
"Without the simulation, students would insist that they would never falsely answer an interrogatory. But with the simulation, they find out first-hand that vigilance is needed to prevent this from happening in practice."
Professor Paula Schaefer invites us to help students navigate the distance between law school and practice by including a complex simulation in our courses. A well-designed complex simulation addresses some of the weaknesses of simple simulations and provides some of the advantages of clinical work. Unlike a simple simulation, which lacks the authenticity of practice, a complex simulation exposes students to "the environment in which the lawyer would encounter [a] task - the knowledgeable people the lawyer would interact with (clients, witnesses, experts, other lawyers, etc.), the type of matter (multifaceted business dispute, employment discrimination case, business merger, etc.), and the quantity and type of information the lawyer would consider."
In her article, Professor Schaefer provides a model that readers can transfer to other courses. She describes her approach of engaging "student-characters" in generating e-discovery material and "student-lawyers" in working through the e-discovery process. For example, "students are not permitted to file a complaint (or answer interrogatories or file a motion) without seeking client input." By thoroughly explaining how she designs a complex simulation, she helps us adopt her approach; by connecting her model to the theory of learning, Professor Schaefer convincingly argues why we should.
[Read fulltext (135 KB PDF)]
(Reprinted with permission of the author)
Stephen E. Schilling and Rebecca M. Greendyke, How to Win a CALI Award: Some Personal Advice from Two Law Students Who Have Done It, 36 University of Dayton Law Review 167 (2011).
The student authors of this article won 16 CALI awards for top performance in law school courses. between them. Their advice on how to excel in law school provides detailed practical guidance for students. For law professors, this article reveals interesting perspectives about law school teaching and learning.
Much of the advice from these two wildly successful students will warm the hearts of their teachers.
- Work hard. There is no substitute for hard work.
- Be your own professor. Students have primary responsibility for teaching the course to themselves - the professor can provide back-up for the portions of the course students cannot learn on their own.
- Tutor other students. Students who tutor others not only help their peers but learn the course at a deep level as well.
- Talk to your professors outside of class. To maximize the value of meeting with professors, students should prepare by rereading course material and creating a set of questions.
- Prepare for exams. Students should review the course to understand each important concept, outline the course to synthesize the material, and take many practice exams.
Other advice should make us think more deeply about how we teach and how our students learn.
- Determine and employ your preferred method of learning. For example, students who learn best by reading and writing should transcribe everything the professor says in class.
- Master memorization. In some courses, the students who succeed are those who can memorize the most material.
- Use supplements. Choose at least one outside source to supplement the material for each course, but do not use these sources as substitutes for course material.
- Write out exam answers in advance. For both open-book and closed-book exams, write out rule statements for the aspects of the course most likely to appear in essay portions of the exam.
It is hard to argue with success - 16 CALI awards. These students found ways to perform at the highest level in law school. Yet many law teachers will find at least some of the advice troubling. That is why this article is provocative. It should prod us to think about what we do. Do we want students to memorize large volumes of doctrine? Is that what our exams require? What role do we think supplements should play in student learning? Is transcription of class appropriate for some students? This article could be the spark for a productive conversation with colleagues.
[Read fulltext at Dayton website (308 KB PDF)]
Deborah Zalesne and David Nadvorney, Why Don't They Get It?: Academic Intelligence and the Under-Prepared Student as the "Other", 61 Journal of Legal Education 264 (2011).
This article uses the paradigm of how law schools teach students from culturally diverse backgrounds to argue for teaching students who just "don't get it" differently. Typically law schools approach teaching students of diverse cultural backgrounds by recognizing the inequality and taking steps to rectify the inequality. Students who just "don't get it" are in a sense students who are treated as unreachable and discarded from many law schools. The authors argue that these students simply may be "academically underprepared" or unprepared for rigors of law school. The authors establish these academically under-prepared students as the "other" students who are conceptually misunderstood by their professors and treated unfairly. The authors continue by establishing the professor's responsibility to bridge this gap between the preparedness of the students and the goals of the course. The article ends with a framework for addressing the cognitive component of academic intelligence.
To begin, the authors argue that there should be a ninth intelligence added to Howard Gardner's theory of multiple ("eight") intelligences which suggested that the traditional notion of IQ equaling intelligence is too limited. This ninth intelligence is termed "academic intelligence," which is "an amalgam of the cognitive, affective, and social skills we think contribute significantly to an entering student's success in law school." A student who has academic intelligence is academically prepared, meaning the student has strong reading and writing skills, competent note taking skills, excellent study habits, and ability to manage his or her time well. These students typically do well in law school. The authors suggest, however, those students who are academically unprepared or under prepared for law school are not successful no matter how hard the student works or how hard a professor works with him or her. Their failure to succeed is not always a matter of IQ. A host of other factors play into that student's academic difficulty: namely academic unpreparedness. For example, if a student fails to understand that he or she is learning a small part which fits into the bigger part of the overall law, the student will have trouble organizing and outlining the doctrinal class.
Second, because sound pedagogy requires professors to teach students from different cultures differently, sound pedagogy also requires professors to "integrate teaching methodologies geared toward these [academically under-prepared] students" into the main curriculum. The professor must "identify where the student is and start her teaching there." "As with the cultural diversity discourse, doctrinal faculty members themselves must understand and acknowledge difference (not cultural here, but academic), and learn and practice sensitivity in a way they haven't necessarily thought to do before."
Lastly, the authors provide some ideas for improvement. For instance, lawyering skills teachers should point out specifically that the skills learned in lawyering skills are and should be transferable to doctrinal classes. Doctrinal teachers could and should point out what skills they are attempting to teach while teaching via the Socratic Method. Professors should adopt more issue spotting exercises and teach more about the purpose of case briefing. This article makes clear that the "process of learning is too often left to intuition and happenstance." Those who are not taught how to learn are being tagged as unreachable and those that have been taught how to learn are rising to the top.
[Read fulltext at SSRN (195 KB PDF)]
Gonzaga University School of Law
Mary Lynch, An Evaluation of Ten Concerns About Using Outcomes in Legal Education, William Mitchell Law Review.
Mary Lynch's "An Evaluation of Ten Concerns About Using Outcomes in Legal Education" makes a compelling case for the many benefits of moving legal education accreditation to an outcomes-based model while addressing common misconceptions and misunderstandings about the goals of outcomes-based education. Using fundamental works in the outcomes assessment field, she tackles such common but false claims as the assertions that outcomes assessment is "anti-theoretical and anti-scholarly," outcomes assessment impinges on academic freedom, and outcomes assessment will require law teachers to "teach to the test." The result of this effort is a rational, thoughtful, convincing argument that outcomes assessment will improve legal education by leading law faculties to thoughtfully chose the outcomes they want their institutions to teach students and make curricular and teaching decisions based on standards and objective data rather than faculty preferences and unsupported beliefs.
[Read fulltext at SSRN]
Corie Rosen, Creating the Optimistic Classroom: What Law Schools Can Learn From Attribution Style Effects, 42 McGeorge Law Review 319 (2011).
At the outset, Corie Rosen's latest article, "Creating the Optimistic Classroom: What Law Schools Can Learn From Attribution Style Effects," continues the ongoing examination into the negative psychological impacts that the traditional law school experience can often bring upon our students. However, law student depression and anxiety is a secondary preoccupation of Rosen's article; her main premise is much more far-reaching than just another diagnostic. Instead, her article deals predominately with overcoming student negativity and depression in law school through teaching our students learned optimism using attribution style effects from positive psychology. The result of reaching towards learned optimism is one thought-provoking method for lessening the negative impact that the law school experience frequently imparts.
As Rosen deftly explains, in law school "where depression, triggered by isolation, extrinsic motivation, and values alienation, is an increasing problem, the psychology of thriving could play an especially important role." With that in mind, she looks to psychologist Martin Seligman's work on learned optimism as a way to introduce the cognitive process of optimistic thinking into the law school classroom. Rosen exposes the differences in thinking that characteristically separate pessimistic minds from optimistic ones, and posits that "[o]ptimism is learnable. At least in the context of behavioral therapy, people who naturally gravitate towards a pessimistic explanatory style can be taught to be more optimistic." This process of learning to think optimistically–particularly, in a form of optimism called "flexible optimism"–is done through attribution style.
Although Rosen is cautious about the limits of optimism, she argues that the law school classrooms should reinforce a system of flexible optimism so that students can learn to call upon optimism when it would be helpful. According to Rosen, opportunities for this learning exist especially when law teachers give feedback and couch the language of optimism into interactions with students. Doing this could produce two results: on the one hand, students might be alerted to deficiencies in their classwork but, on the other hand, they would be able to see such deficiencies only in limited terms. Moreover, they might sense that the instructor's language, as a whole, encourages them to see their deficiency as an essential step to overcome in order to obtain mastery. Rosen gives examples of how to create feedback using the language of optimism with the struggling law student as the particular recipient. In this way, Rosen's work in this area of positive psychology certainly produces food for thought.
[Read fulltext (147 KB PDF)]
(Reprinted with permission of the publisher, McGeorge Law Review)
Washburn University School of Law
Mary Beth Beazley, Better Writing, Better Thinking: Using Legal Writing Pedagogy in the 'Casebook' Classroom (without Grading Papers), 10 Journal of the Legal Writing Institute 23 (2004).
Mary Beth Beazley's 2004 article is one of those works that is worth not only an initial read but also a second visit years later. After articulating and explaining the forces that have led legal writing professors to broaden their teaching methods beyond the Socratic focus of the their casebook colleagues, Beazley identifies a series of core principles of legal writing pedagogy that are readily transferable to casebook classrooms, heuristic strategies (techniques that guide students through the process of completing particular skills), modeling, coaching (using hints, feedback and cues when students begin to walk through the process of performing skills), and articulation (meta-writing that reveals the student's mental process in solving a problem). She then weaves these four teaching principles together in showing how legal writing teachers use these principles, guided by writing process theory, to teach students legal writing.
These explanations set up Beazley's carefully constructed argument for bringing legal writing principles into casebook classrooms. She begins this part of her argument by debunking the reasons some law teachers might assert as grounds for rejecting legal writing methodology: Law professors do grade writing because writing reflects thinking; hiding the ball is not essential to the curve or, much less, to legal education; and the fact that lawyers often work on their own does not justify law teachers in leaving novices, their students, to learn on their own.
The rest of her paper is even more valuable than the parts that preceded it. Beazley provides a series of concrete ideas, drawn from legal writing pedagogy, that can improve learning in casebook classrooms. First, just as they label the parts of case briefs, casebook faculty can label analytical steps so that students see the process of legal reasoning more clearly. Second, casebook faculty should articulate exam criteria, i.e., rubrics, to help their students understand what they need to be doing to do well on exams. The article concludes with three additional suggestions, each of which is worth its weight in gold. But you will have to read the article to discover those insights yourself.
[Read fulltext at Journal of the LRI website (7.6 MB PDF)]
Cassandra Hill, Peer Editing: A Comprehensive Pedagogical Approach to Maximize Assessment Opportunities, Integrate Collaborative Learning, and Achieve Desired Outcomes, 11 Nevada Law Journal 667 (2011).
I have never met a lawyer who said that students and new lawyers were proficient writers. Instead, when asked how we can make our students more "practice ready," they beg us to improve our students' ability to write clear, concise, organized prose. As anyone who has ever sought to teach legal writing well knows, this goal is an enormous challenge. Learning how to write well takes a long time. Teaching writing demands huge amounts of time and energy. If we can infuse writing exercises and feedback throughout the curriculum, however, we could dramatically improve our students' chances of meeting the demands of their future clients and colleagues. But how do we improve students' writing in a way that is manageable and sustainable?
Cassandra Hill has a solution: engage students in effective peer review assignments. "Peer editing, in combination with a broad array of teaching strategies, is an excellent means of incorporating additional assessment measures and opportunities for student feedback in law school courses." The benefits of peer editing are significant. "By devoting time to structure a comprehensive and effective peer-editing exercise, professors will be rewarded as students improve their writing skills, increase their confidence levels, develop strong peer relationships, and perceive the writing process as a positive and useful experience." In her article, Professor Hill brings a structured approach to peer editing that can be used in any course.
Building upon the literature of writing across the curriculum, collaborative learning, and assessment, Professor Hill first describes the many benefits of peer editing for law students. Then she provides explicit guidance on how to design effective peer editing assignments, inviting professors "to approach the assignment in stages: (1) planning, (2) the "pitch" and training, (3) implementation, and (4) assessment." For each of these stages, Professor Hill explains not just what to do, and why do it, but how to do it. As with any complex teaching method, the devil is in the details - figuring out exactly how to make the method work in a class. Professor Hill thoughtfully addresses these, discussing different approaches to issues such as forming peer editing partners or groups, preparing checklists, allowing sufficient time, training students, and assessing the peer editing assignments. Using examples from her own courses, and including exercises, critique sheets and a sample checklist, Professor Hill gives us a road map to sustainably infuse more writing throughout the curriculum.
[Read fulltext (1.1 MB PDF)]
(Reprint courtesy of WestLaw)
Jim Cummins, Empowering Minority Students: A Framework for Intervention, 71 Harvard Educational Review 649 (2001).
Despite its age, Jim Cummins's 1986 article remains timely in its call to reframe the debate about the so-called minority achievement gap. Efforts to close the gap have tended to locate the problem within students who are members of minority communities. For example, schools may focus resources on diagnosing learning disabilities and upon the student's ability to adapt to the social norms of the dominant society. In reframing the problem, Cummins challenges educators to consider whether we are treating the symptoms rather than the underlying disease. His threefold framework for addressing the achievement gap asks us to address how we as communities, institutions, and educators inadvertently inhibit our students' learning by projecting messages of inferiority and exclusion. He also proposes that building teacher-student relationships is likely the most important factor in signaling to students that they are empowered to succeed.
To provide some context, the article examines K-12 ESL instruction, comparing English-only systems with those where primary instruction took place in the student's first language, with English truly introduced as a second language. Although the results may sound counterintuitive, students who were allowed to study in their first languages performed better in English over time than their English-only counterparts. Cummins theorizes that this gap-closing effect has to do with the messages that socially dominant institutions impart to their students about the validity of their diverse identities, enculturated learning styles, and worldviews. Students from minority cultures actually tend to succeed greatly even within the dominant system when they are a prized group. Cummins points to Finnish student's struggles to succeed in Sweden versus their success in Australia. Members of the Finnish community tend to excel scholastically in Australia, where their identity is admired and valued by the dominant society, but to underperform in Sweden, where it has much lower status.
Although the article focuses on K-12 language instruction, the challenge to law schools remains the same. To the extent that we continue to experience an achievement gap overall between students from dominant and minority groups within society, what messages are we sending to them about their value within the system? It is not only the larger society that contributes to stereotype threat, but also the individual signals sent by educators in what they do-and do not-say in the classroom. Professor Cummins concludes that "any serious attempt to reverse underachievement must challenge both the devaluation of identity that these students have historically experienced and the societal power structure that perpetuates this pattern." Although specific strategies are beyond the scope of Cummins's article, his framework offers a good starting point for faculties wishing to discuss how to support students from non-dominant communities.
[Read fulltext at the Review's website (160 KB PDF)]
Aïda Alaka, Learning Styles: What Difference Do the Differences Make?, 5 Charleston Law Review 133 (2011).
Professor Alaka's provocative article explores the controversy about the concept of "learning styles." In doing so, Professor Alaka discusses two recent assessments of the theoretical and empirical bases that underlie the learning styles field and their implications for legal educators."
Broadly defined, learning styles are "those cognitive, affective, and psychological behaviors that indicate how learners interact with and respond to the learning environment and how they perceive, process, store, and recall what they are attempting to learn." Although many law journal articles assume that learning styles are valid and supported by a significant body of research, Professor Alaka demonstrates that the concept of learning styles has always been controversial. "Many education psychologists and others involved in researching educational theories are highly critical of the notion that students possess fixed learning styles that teachers must address in order for students to learn."
Professor Alaka sets out a number of criticisms educational researchers direct at proponents of learning styles schemes. One criticism is that a significant amount of the research underlying learning style models has been done by those who developed the models, and who have a strong commercial interest in establishing the validity of the models. A second criticism is the lack of empirical support for the "matching hypothesis" – that teachers should adapt their courses and class sessions to address specific learning styles of their students."
Despite the criticisms of some uses of learning styles concepts, Professor Alaka concludes her article by recognizing the benefits of the learning styles literature for legal education.
- "[I]f learning style assessments are presented as a way to measure preferences or habits rather than immutable 'styles,' they could assist law students in recognizing the strengths and weaknesses in how they approach their legal studies."
- "By considering the diversity of learners in their classroom, law faculties are developing creative and active exercises designed to enhance the acquisition of critical legal skills."
- "The use of a variety of teaching methods is more likely to develop the different skills lawyers regularly use than any single method."
- Finally, "the focus on learning theory generally, as well as learning styles specifically, enhances the professional skills of law school faculty who had no background in education theory before joining the academy."
[Read fulltext at SSRN (3.1 MB PDF)]
Donald J. Kochan, "Learning" Research and Legal Education: A Brief Overview and Selected Bibliographical Survey, 40 Southwestern Law Review 449 (2011).
"At its core, education is about learning. Every educator, legal or otherwise, must at the same time be both a teacher and a student in the learning enterprise. Luckily, there is a wide literature to help us in these roles and it is growing every day. It should be a goal of every legal educator to appreciate this area of scholarship, understand its breadth and importance, and engage with it in our teaching and writing."
That challenge begins Professor Kochan's helpful article. In it he surveys the literature and provides citations to leading books, journal articles, and web resources in the following areas:
- Learning in general and in law school specifically
- Teaching in law school
- Legal research and writing
- Thinking like a lawyer
- How to succeed in law school.
The literature on teaching and learning is vast. Professor Kochan provides a user-friendly introduction to a slice of that literature. This article will help guide law teachers who want to locate resources to improve their teaching and their students' learning. In addition, Professor Kochan provides an efficient overview of this field for anyone seeking to explore topics in depth and to contribute to the scholarship of teaching and learning.
[Read fulltext (304 KB PDF)]
(Reprinted with permission of the author)
Kristen E. Murray, Let Them Use Laptops: Debunking the Assumptions Underlying the Debate Over Laptops in the Classroom, 36 Oklahoma City University Law Review 185 (2011).
In this article Professor Murray examines an important and current issue facing professors in law schools: whether to ban laptop use in the classroom. She concludes, "law professors should allow students to use laptops in the law school lecture courses . . . and move past old notions of what is best for students." In the end, Professor Murray points out, it is more important for professors to discuss learning styles with the students and provide ways to enhance students' learning by the use of laptops and other technology.
Professor Murray begins by analyzing the five assumptions cited in the laptop debate; she then discusses the modern student's relationship with technology. Also, she discusses the survey on laptop use which she conducted, and Professor Murray uses that survey data to challenge some of the assumptions regarding laptop use in the classroom. Finally, she offers some thoughts and examples of alternatives to "all-out laptop bans."
What is most informative about this article is the author's look at both sides of the laptop debate, which shows that both sides are basing conclusions on untested assumptions about the modern law student. I will only discuss two of the assumptions, but the article's coverage of all the assumptions is excellent. The first assumption, laptops have a negative effect on student note taking and learning in the classroom, was found to be simply not true. The concern here is that students take transcript notes, which, in most professors' minds, is not the best style. The literature cited, however, shows that many students need to take notes this way so that they can go back and review the notes at a later time. Many students are not able to process information in the classroom as intended by the professors. Second, the assumption that laptops lead to lower class participation and engagement, was also debunked. The studies cited in the article establish that the modern law student is much less inclined to participate regardless of the presence of a laptop. The article showed the modern law student is "team-oriented . . . moderate, and deferential to authority." All of these traits are counter-productive in a traditional Socratic Method class. Further, our modern students are "disconcertingly comfortable with authority." Thus, these students are less likely to confront a professor's opinion or that of a court. The result is a classroom with less engagement and less participation, but it has very little to do with laptop use in the classroom.
This article's hard look at the assumptions all of us are making about laptop use provides a smorgasbord of food for thought. The author urges law schools to do more to educate students about students' learning styles and preferences so as to better use technology for the students' advantage. Further, law schools could do a better job of teaching students how to take better notes in class. Lastly, professors should be forthright in the classroom, and professors should tell students the expectations regarding internet use in the classroom. Overall, this article is well supported and takes a very informed look at a critical issue in legal education.
[Read fulltext at SSRN (210 KB PDF)]
Justine Dunlap, "I'd Just As Soon Flunk You As Look at You": The Evolution to Humanizing in a Large Classroom, 47 Washburn Law Journal 389 (2008).
With the end of the semester upon us, the inclination arises to reflect back on our teaching over the last several months to determine whether we've been effective teachers to our students. Certainly, this time of the year can be a fruitful time of pedagogical assessment and decision-making. For some guidance into making changes to next semester's classes, particularly for large doctrinal classes, this article by Professor Justine Dunlap offers some valuable suggestions.
Professor Dunlap begins her article by examining the psychological repercussions of the traditional law school classroom and expressing that part of her goal in law teaching has been to avoid inflicting such psychological stressors by incorporating humanizing principles and teaching techniques in her classroom. In defining what she believes an effective, humanizing classroom requires, she draws from the research and writings of Professors Lawrence Krieger and Kennon Sheldon explaining that "to be psychologically well in addition to performing well in law school, students have certain needs that must be met in the law school setting. Accordingly, so-called humanizing techniques, as well as principles of good teaching, must be examined through this prism."
Humanizing, she asserts, is more challenging in large-class settings than in other teaching environments, such as in smaller seminar groups or in clinical legal education. In her efforts to balance both her substantive teaching and the psychological needs of her students, Dunlap developed three techniques for humanizing a large classroom. First, she conducts an in-class exercise with her students that candidly addresses how law school can have negative effects on students and asks her students to brainstorm ways to minimize such effects. By doing so, Dunlap attempts to make the psychological pitfalls of the law school experience an open topic, to personalize herself, and to demonstrate a more holistic approach to seeing life and law school.
She also strives to humanize the Socratic method by utilizing what Dunlap terms the "The Law Firm Method" of calling on students and by manifesting her respect for student preferences and student autonomy in her classroom through frequent and effective student evaluations of her teaching. In sum, Professor Dunlap believes that, in law teaching, the classroom environment has tremendous influence on the effectiveness of student learning and well-being. According to her, a law school classroom "must be a place where learning is safe, expected, and encouraged." Her article demonstrates her commitment to creating such a setting for her students and also gives great suggestions for law teachers looking to humanize their classrooms.
[Read fulltext... (201 KB PDF)]
(Reprinted with permission of the publisher, Washburn Law Journal © 2007.)
Washburn University School of Law
Greg Sergienko, New Modes of Assessment, 38 San Diego Law Review 463 (2001).
In the last few years, discussions of assessment among legal educators increasing have become commonplace. But ten years ago, in 2001, Professor Greg Sergienko was ahead of the game in asking law professors to expand their repertoire of assessment tools. As he explains, "The purpose of this Article is to call attention to a variety of alternatives to [the traditional end-of-semester essay exam) that are more accurate and less burdensome . . ." His article is therefore a useful tool for any professor interested in improving her assessment practices.
The article begins with an excellent discussion of basic principles of assessment with which all law professors should be familiar, including the differences between formative and summative assessment, the three core pillars of good assessment practice - validity, reliability and practicality, and the differences between criterion-referenced and norm-referenced testing.
Professor Sergienko then offers a useful exposé of the limits of essay examinations. He explains that traditional essay exams often fail to assess the full range of substantive knowledge and skills taught in a course, are so burdensome to grade that they have limited value as formative assessment tools, and are difficult to grade consistently.
The remainder of his article therefore offers two alternatives: non-instructor evaluation and multiple-choice questions. While others also have offered both alternatives, what is particularly useful about Professor Sergienko's article are his ideas for using peer assessment, for incentivizing accurate self-assessment, and, most importantly, for designing multiple choice questions that isolate particular skills.
This latter contribution requires additional explanation. First, Professor Sergienko argues convincingly that multiple choice questions can be used to assess skills. He then carefully explains and demonstrates how to do so. In the course of this explanation, he pushes law professors to expand their understanding of the skills that multiple choice questions can assess. He demonstrates that, in addition to assessing rule application skills, multiple choice questions can assess case reading skills, rule reading skills, and factual identification and analysis skills.
This information, according to Professor Sergienko, "can promote student learning by telling students what they have not yet learned and telling instructors what instruction is effective."
[Read fulltext. (1.7 MB PDF)]
(Reprinted with permission of the publisher, San Diego Law Review, © 2001; reprint courtesy HeinOnline.org)
Ruthann Robson, The Zen of Grading, 36 Akron Law Review 303 (2003).
If you are providing students with individual comments on their work, or if you are thinking about the grading process that will occur in a couple of months, Ruthann Robson's article, The Zen of Grading, provides a wonderful perspective on evaluating student work. As she states in the opening paragraph,
I estimate that I have spent over four thousand hours (almost six months of days and nights, or a year of long summer days) hunched over student work during my teaching career. I can be difficult not to consider student exams as a mere obstacle, a chore of the most unpleasant type to endure, and the worst part of our otherwise usually rewarding work as professors.
In the five sections that follow — Invisible Practice and Practice, Beginner's Mind, NOW, Sangha, and Desire and Suffering — Ruthann Robson shares her thoughtful views on grading students' work.
"Love" may seem like a strange emotion to consider in the context of bluebooks, but each exam can present itself as a love letter of sorts. It's a personal communication from the student to me (only in rare cases will someone else read this exam) which the writer has a chance to display amazing revelations, if not of heart and soul, then of mind. This is the student's opportunity to express utmost attention, such as some fragment of a class discussion that reverberates on the page with lyrical intensity.
[Read fulltext (922 KB PDF)]
(Reprinted with permission of the publisher, Akron Law Review, © 2003; reprint courtesy HeinOnline.org)
Beverly I. Moran, Disappearing Act: The Lack of Values Training in Legal Education - A Case for Cultural Competency, __ Southern University Law Review __ (2011).
Professor Beverly Moran of Vanderbilt Law School has written widely on the many intersections between tax, race, and social justice. As many law schools across the nation engage in post-MacCrate curricular reform, her call to train students in cultural competency skills strikes a timely chord. Professor Moran reinforces the mandate in MacCrate and Educating Lawyers to inculcate values such as social justice, pro bono, law reform, and effective client communication. She then explains why cultural competence training plays a key role in achieving those ends. She also observes that the most recent educational initiative, the Legal Education Analysis and Reform Network (LEARN), fails-at least so far-to sufficiently consider those core skills in its models. Carefully probing the possible reasons for these omissions, Professor Moran offers persuasive reasons for maintaining a commitment to those values, as well as several very concrete ideas for incorporating culturally literate values and training into that project.
Further reading and action:
- Charles R. Calleros, In the Spirit of Regina Austin's Contextual Analysis: Exploring Racial Context in Legal Method, Writing Assignments and Scholarship, 34 John Marshall Law Review 281 (2000)
- Nelson P. Miller and Tracey Brame, Equality as Talisman: Getting Beyond Bias to Cultural Competence as a Professional Skill, 25 Thomas M. Cooley Law Review 99 (2008)
- Margaret Montoya and Christine Zuni Cruz, Narrative Braids: Performing Racial Literacy, 33 American Indian Law Review 153 (2009)
- Aliza Organick, Tribal Law and Best Practices in Legal Education: Creating a New Path for the Study of Tribal Law, 19 Kansas Journal of Law & Public Policy 63 (2009).
- Antoinette Sedillo López, Making and Breaking Habits: Teaching (and Learning) Cultural Context, Self-Awareness, and Intercultural Communication Through Case Supervision in a Client-Service Legal Clinic, 28 Washington University Journal of Law & Policy 37 (2008)
- Legal Writing Institute Diversity Initiatives Committee, http://www.lwionline.org/committees_and_reports.html
Tonya Kowalski, True North: Navigating for the Transfer of Learning in Legal Education, 34 Seattle University Law Review 51 (2010).
Many law professors are bewildered and frustrated by the failure of their students to display the skills and knowledge they learned in prior educational experiences – both in and out of law school. Thus, for example, will a clinic student appear confused when required to write a legal research memo, or a trial advocacy student appear to forget the rules of evidence, or an upper-level student appear oblivious to the basic skills of analogizing to precedent. This phenomenon, which is related to the transfer of prior learning to new situations, is common in all educational settings. And yet, as Professor Kowalski notes, "[t]ransfer of learning is at the very essence of what lawyers do every day." That is, lawyers take rules and precedent and apply them to new legal problems.
Professor Kowalski's article is essential reading for any educator who wishes to overcome this commonplace hurdle in skill development. True North is the first article to propose a comprehensive method for improving transfer of learning in legal education. It proposes that law schools employ "mental maps" based on schema theory to transfer knowledge and assist students in conceptually unifying their education. The article provides an overview of transfer theory and examines how it has been incorporated in legal education. It also introduces the Core Skills Approach to transfer and explains how it can be employed for the benefit of our students. Finally, the article provides an appendix that contains sample schemas, guides, and modules that professors and students can adapt to their own needs. Thus, the article not only examines a common problem in legal education but also provides concrete solutions.
[Read fulltext at SSRN]
Washburn University School of Law
M.H. Sam Jacobson, Paying Attention or Fatally Distracted: Concentration, Memory, and Multi-Tasking in a Multi-Media World, 16 Journal of the Legal Writing Institute 419 (2010).
Do you think your students should refrain from multi-tasking during your course? Does your attention waver at times you wish you were able to fully concentrate? Would you like to understand the effects of multi-tasking and scattered attention on the complex cognitive tasks our students face in law school and we face in our jobs as teachers and scholars?
If the answers to those questions are "yes," this article is for you. Based on an in-depth review of the literature on learning and cognition, Professor Jacobson explains the critical role of attention in learning, especially the higher-order cognitive tasks required in legal analysis and reasoning. Then Professor Jacobson explores four factors that affect attention: distractions, multi-tasking, stress, and fatigue. The final part of the article offers practical advice to students (and their teachers) to address each of the factors that limit attention.
[Read fulltext at LWI website (450 KB PDF)]
Andrea A. Curcio, Assessing Differently and Using Empirical Studies to See If It Makes a Difference: Can Law Schools Do It Better, 27 QLR 899 (2008).
Professor Curcio makes several important points which should provoke thought and conversation on the subject of assessment: the need for better assessment to ensure and support diversity in law schools and in the profession, to ensure law school grades properly reflect students' ability to practice law, and lastly, to ensure that assessment engages students rather than disengaging students. Her premise is that alternative assessments are needed to ensure that "law schools produce the most effective lawyers possible." The article starts with discussing alternatives to assessment which help incorporate the Carnegie report into doctrinal course assessments. After this, Professor Curcio covers ways to study whether the changes in assessment affect student learning.
While recognizing the impact of increasing assessment in the law school classroom will have on the professor's time to teach content and to engage in scholarship, Professor Curcio argues that this trade-off must be made. She urges professors to use different types of assessment such as factual development assessments, video reviews of doctrinal course simulation exercises, document drafting exercises, oral performance assessments, developing and using problems that raise ethical issues, developing and using in-class problems that expand a student's world-view, and teamwork assessments. After fully discussing these assessment alternatives, the article suggests ways to measure whether the new assessments are working. These methods include designing an empirical study and utilizing the experimental study approach. Lastly, Professor Curcio discusses several areas where studies are needed to determine whether new assessments are working, such as design and development of rubrics, examination of construct validity, examination of reliability, and the examination of assessment format's impact on diversity.
[Note: The Society of American Law Teachers (SALT) has created a resource for those interested in studying teaching/assessment but are not trained in empirical work — a SALT list of social science collaborators.]
[Read fulltext (2 MB PDF)]
(Reprinted with permission of the publisher, Law Review Association of the Quinnipiac University School of Law, © 2009; reprint courtesy HeinOnline.org)
Paul Bateman, Toward Diversity in Teaching Methods in Law Schools: Five Suggestions from the Back Row, 17 QLR 397 (1997).
More than a century has passed since the Socratic method has become the prevailing method for teaching law school classes — particularly for the core first-year subjects. Despite noting both the scholarly reverence and criticism for the method over the years, Professor Bateman's article also observes that teaching and learning Socratically has become a hallmark of legal education. Through its inquiry nature, what the method offers is an opportunity for students to acquire the skills of argumentation and abstract analytical reasoning. But the method can also inhibit student creativity and profoundly alienate certain students.
Professor Bateman's article recommends that the use of the Socratic method should not preclude law teachers from exploring other diverse methods of teaching in the law school classroom — methods that can offer to bring student-centered learning closer to the forefront of the classroom. In particular, Professor Bateman discusses and elaborates on five suggestions for adding diverse teaching methods into law school teaching: (1) debriefing classroom participation; (2) assigning various writing assignments throughout the semester for feedback and for targeting better exam analysis skills; (3) using games in and out of the classroom; (4) employing student learning contracts; and (5) bringing in computer-assisted instructional tools as a way of giving additional practice and feedback. All of these diverse techniques are explained and demonstrated with the goal of using each — or a combination — of them to fill student learning needs in ways that can supplement traditional law school teaching methods.
[Read fulltext (1.5 MB PDF)]
(Reprinted with permission of the publisher, Law Review Association of the Quinnipiac College School of Law, © 1998; reprint courtesy HeinOnline.org)
Washburn University School of Law
Roberto Corrada, A Simulation of Union Organizing in a Labor Law Class, 46 Journal of Legal Education 445 (1996).
A lot has been written about using simulations in law teaching. In this intriguing article, Professor Corrada explains his whole class simulation model. Instead of creating a series of mini-simulations, Corrada made his entire labor law class a union management simulation in which he was management, his students were the workers, and the students were expected to unionize so they could negotiate the terms of the class.
This approach not only adds authenticity but also gives students a reason to invest in learning what they are studying in the course. Students who might otherwise see labor law as some sort of ancient relic of a time gone by learn first hand the power and efficacy of unions. The approach also is consistent with adult learning theory because the resulting union is able to successfully influence the contours of the professor's syllabus.
[Read fulltext (831 KB PDF)]
(Reprinted with permission of the publisher, The Association of American Law Schools, © 1996; reprint courtesy HeinOnline.org)
Vernellia R. Randall, Increasing Retention and Improving Performance: Practical Advice on Using Cooperative Learning in Law Schools, 16 Thomas M. Cooley Law Review 201 (1999).
Professor Randall provides a thorough introduction to the whys and hows of cooperative (small group) learning in law school. She reviews the extensive literature (over 700 studies) that establishes the benefits of cooperative learning, including student mastery of complex concepts, development of problem solving and thinking skills, positive attitudes toward the subject, closer relationships among students, and respect for diversity.
Professor Randall articulates seven elements for the design of effective cooperative learning activities and applies them to legal education:
1. Instructional objectives - the teacher clearly articulates the objectives (which could include knowledge, attitudes, and skills) of the activity.
2. Set up groups - the teacher decides group size, membership (heterogeneous or homogeneous), and the method for selecting members.
3. Positive interdependence - each student feels part of a team, responsible not only for her own learning, but for the learning of other group members as well.
4. Promotive interaction - students engage in face-to-face interaction to explore issues and to work toward achievement of instructional goals.
5. Individual accountability - each student is accountable for contributing a fair share to the group's success.
6. Group social skills - students get to know one another, communicate accurately, support one another, and resolve conflicts constructively.
7. Group processing - students reflect on group processing and give one another feedback on individual and group effectiveness.
Professor Randall's article is an excellent resource for law teachers new to cooperative learning and those who want a refresher to improve their students learning via small group methods.
[Read fulltext (4.6 MB PDF)]
(Reprinted with permission of the publisher, Thomas M. Cooley Law Review, © 1999; reprint courtesy HeinOnline.org)
Leah Christensen, Enhancing Law School Success: A Study of Goal Orientations, Academic Achievement and the Declining Self-Efficacy of Our Law Students, 33 Law & Psychology Review 57 (2009).
Do students who focus on mastering their law school material rather than on grades do better in law school? Does believe in oneself predict success in law school? This article asks and offers the results of a carefully-constructed study as a start to answering these important questions.
Interestingly, even though law schools place a huge emphasis on grades, generally assigning lower grades than all other graduate schools and often ranking students from first to last on a semester-by-semester basis, the most successful law students have a mastery rather than a grade focus. This result has very interesting implications not only for future studies but also for reforming how law schools train their students. Studies in other settings show that students can be trained to develop mastery goals; future studies can and should explore whether training students to choose to adopt mastery goals can have similar effects. Regardless of the results of such studies, this paper makes it clear that law schools may be able to improve student performance by altering their emphasis on grades and focusing more on mastery.
The study also reveals that mastery orientation trumps LSAT scores as a predictor of law school success. That piece of data should haunt law schools.
Equally interesting is Christensen's data showing that the high performing, mastery-oriented students are more likely than their peers to doubt their academic abilities. In other words, it appears that law schools manage to make even their best performing students feel bad about themselves.
[Read fulltext (2.1 MB PDF)]
(Reprinted with permission of the publisher, Law & Psychology Review, © 2009; reprint courtesy HeinOnline.org)
Ellie Margolis, Closing the Floodgates: Making Persuasive Policy Arguments in Appellate Briefs, 62 Montana Law Review 59 (2001).
Teaching students to properly develop, cite, and advance policy arguments continues to be challenging for most professors. The arguments are typically not supported by authority and, as a result, usually lack persuasion. Further, professors teach students to find and understand a law's policy as it applies to a particular set of facts. However, policy arguments are also needed to convince a court to apply a rule to a new situation. This is usually not taught in most legal writing programs or in most doctrinal classes. To complicate matters, most textbooks used by legal research and writing professors provide cursory mention of this type of policy argument.
This article not only establishes the importance of teaching policy argumentation as a skill, but more importantly, it also explains the nature and types of policy arguments. Professor Margolis divides policy arguments into four categories: judicial administration arguments, normative arguments, institutional competence arguments, and economic arguments. In addition, the article provides a very succinct way to teach students to find support for their policy arguments, a skill with which students often struggle. Any professor who reads this article will learn solid ways to discuss the types of policy arguments and solid ways to help students support their policy arguments.
[Read fulltext (1.7 MB PDF)]
(Reprinted with permission of the publisher, Montana Law Review, © 2001; reprint courtesy HeinOnline.org)
Patrick Longan, Teaching Professionalism, 60 Mercer Law Review 659 (2008).
Law schools are challenged to teach professionalism in Educating Lawyers and Best Practices for Legal Education. The American Bar Association accreditation standards require law schools to teach rules of professional conduct as well as the history, goals, structure, and values of the profession. In this article, Professor Longan describes Legal Profession, a required first-year course at Mercer that responds to these challenges and mandates.
The classroom portion of the Legal Profession course addresses four professionalism lessons: (1) what professionalism means and why it is important to lawyers and the public; (2) what pressures lead lawyers to engage in unprofessional conduct; (3) how the expectations of profession are encouraged and enforced; and (4) how professionalism connects to students' sense of fulfillment as lawyers.
Several reflective and experiential elements of the course help students connect what they are learning in the classroom and their own professional identities with the reality of the legal profession. Students engage in reflective writing via essays and blog posts throughout the course. Prominent legal professionals speak to the students about meaningful law practice, the development of professional identity, substance abuse, and virtue and spirituality in law practice. Students read and discuss a biography of a famous lawyer. Finally, students conduct an oral history of a lawyer or judge.
For his work on the Legal Profession course, Professor Longan received the 2005 National Award for Innovation and Excellence in Teaching Professionalism from the American Bar Association Standing Committee on Professionalism, the National Conference of Chief Justices, and the Burge Endowment for Legal Ethics.
[Read fulltext (2.6 MB PDF)]
(Reprinted with permission of the publisher, Mercer Law Review, © 2008; reprint courtesy HeinOnline.org)
Alice M. Thomas, Laying the Foundation for Better Student Learning in the Twenty-First Century: Incorporating an Integrated Theory of Legal Education into Doctrinal Pedagogy, 6 Widener Law Symposium Journal 49 (2000).
Why do you teach the way you teach? In this provocative and extremely useful article, Professor Alice M. Thomas of Howard University School of Law carefully explains a wide variety of learning and teaching theories, calls upon all law professors to develop their own teaching and learning theories, and offers her own theories for our consideration. She argues that, as professionals in our field (education), we should not only be familiar with the literature she so effectively describes but also have developed our own understandings of how our students learn and what constitutes effective teaching. Her article asks a lot of us, but her articulation of existing and her own theories is worth the effort.
[Read fulltext (4.7 MB PDF)]
(Reprinted with permission of the publisher, Widener Law Symposium Journal, © 2000; reprint courtesy HeinOnline.org)
Jay Feinman, Simulations: An Introduction, 45 Journal of Legal Education 469 (1995).
Simulations are an effective method to help students achieve core goals of legal education, including deep understanding of doctrine, acquisition of skills, and appreciation of professional values. In this classic, short article, Jay Feinman identifies the wide spectrum of simulations available to law teachers, including single experience exercises (draft a complaint), extended exercises (interview a client, negotiate an agreement, and draft the agreement), and entire courses built around lawyering activities. The article then provides a simulation-design primer, including advice on goals, facts, roles, collaboration among students, products of the exercise, time, assistance from adjuncts and teaching assistants, preparation, reflection, and evaluation. This little gem of an article is followed by four articles discussing simulations in first-year and upper-level courses.
[Read fulltext (834 KB PDF)]
Robin Boyle and Rita Dunn, Teaching Law Students Through Individual Learning Styles, 62 Albany Law Review 213 (1998).
As teachers, we all feel frustrated when our students don't learn, and it's tempting to blame the students: "They can't deal with ambiguity." "They don't work hard enough." "They aren't able to think abstractly." In this excellent article, Professor Robin Boyle of St. John's, and her collaborator, Dr. Rita Dunn, also of St. John's, offer alternative explanations for students' failures to learn based on the research on learning styles. They studied the learning styles of students attending St. John's and found what learning style experts would expect-- the students varied greatly in their learning styles. They advocate that law professors assess their own students and adapt their teaching to better reach a broad spectrum of students.
[Read fulltext (469 KB PDF)]
(Reprinted with permission of the publisher, Albany Law Review, © 1985)
Paula Lustbader, Construction Sites, Building Types, and Bridging Gaps: A Cognitive Theory of the Learning Progression of Law Students, 33 Willamette Law Review 315 (1997).
In this incredibly useful article, Professor Paula Lustbader of Seattle
University School of Law re-conceptualizes legal education as a
developmental process and identifies and explains the steps in students'
progression from novices to legal experts.
[Read fulltext (3.2 MB PDF)]
(Reprinted with permission of the publisher, Willamette Law Review, © 1985)
Kent Syverud, Taking Students Seriously: A Guide for New Law Teachers, 43 Journal of Legal Education 247 (1993).
As a new school year begins and we meet a new group of students, we can benefit from grounding ourselves in fundamental principles of teaching and learning. Kent Syverud offers timeless advice for new and experienced teachers on the importance of establishing positive relationships with students. "First: Your students will know whether you like and respect them, and if they know that you do not, you will fail as a teacher." "Second: if your students know that you like and respect them, they will forgive a great deal in the classroom." Dean Syverud then sets out a boatload of practical ideas to help us establish an effective teaching/learning environment in our classrooms.
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(Reprint courtesy HeinOnline.org)
Barbara Glesner Fines, The Impact of Expectations on Teaching and Learning Law, 38 Gonzaga Law Review 89 (2002/03).
This article by Barb Glesner Fines builds on the decades of research establishing the effect of teachers' expectations on students – high expectations lead to high student performance, low expectations lead to low student performance. Professor Glesner Fines then translates that research into practice, addressing barriers to high expectations and offering helpful ideas for law teachers to avoid excessive demands while maintaining rigor.
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Jay Feinman and Marc Feldman, Pedagogy and Politics, 73 Georgetown Law Journal 875 (1985).
In this classic article, Jay Feinman and Marc Feldman offer a wealth of great course design ideas that also have implications for the design of first-year curricula, describe their efforts to implement formative and summative assessment in their teaching, and describe the grading process in a way that resonates with anyone who has ever read an exam and explained, "But I said-- three times-- not to do that in class!"
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(Reprinted with permission of the publisher, Georgetown Law Journal, © 1985; reprint courtesy HeinOnline.org)
Sophie Sparrow, Describing the Ball: Improve Teaching by Using Rubrics - Explicit Grading Criteria, 2004 Michigan State Law Review 1.
Carnegie and Best Practices emphasize the importance of assessment. In this excellent article, Sophie Sparrow explains how detailed, written grading criteria describing what students should learn and how they will be evaluated should be a central part of law teachers' assessment plans. The article details how rubrics can improve law student learning, and contains both detailed, step-by-step directions on creating rubrics and examples of rubrics from many different law school courses.
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