Article of the Month

April 2012

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)

February 2012

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)]

January 2012

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)]

December 2011

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]

November 2011

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)

October 2011

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)]

September 2011

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)

August 2011

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)]

July 2011

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)]

June 2011

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)

May 2011

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)]

April 2011

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.)

March 2011

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)

February 2011

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.

January 2011

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

[Read fulltext at SSRN]

December 2010

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]

November 2010

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)]

October 2010

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.]
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(Reprinted with permission of the publisher, Law Review Association of the Quinnipiac University School of Law, © 2009; reprint courtesy HeinOnline.org)

September 2010

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.
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(Reprinted with permission of the publisher, Law Review Association of the Quinnipiac College School of Law, © 1998; reprint courtesy HeinOnline.org)

August 2010

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.
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(Reprinted with permission of the publisher, The Association of American Law Schools, © 1996; reprint courtesy HeinOnline.org)

June 2010

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.
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(Reprinted with permission of the publisher, Thomas M. Cooley Law Review, © 1999; reprint courtesy HeinOnline.org)

May 2010

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.
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(Reprinted with permission of the publisher, Law & Psychology Review, © 2009; reprint courtesy HeinOnline.org)

April 2010

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.
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(Reprinted with permission of the publisher, Montana Law Review, © 2001; reprint courtesy HeinOnline.org)

February 2010

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.
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(Reprinted with permission of the publisher, Mercer Law Review, © 2008; reprint courtesy HeinOnline.org)

January 2010

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.
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(Reprinted with permission of the publisher, Widener Law Symposium Journal, © 2000; reprint courtesy HeinOnline.org)

December 2009

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.
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November 2009

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.
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(Reprinted with permission of the publisher, Albany Law Review, © 1985)

October 2009

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.
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(Reprinted with permission of the publisher, Willamette Law Review, © 1985)

September 2009

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)

August 2009

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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July 2009

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)

June 2009

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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