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End-of-Year Reflections: How Does a Teacher Say Goodbye?

End-of-Year Reflections: How Does a Teacher Say Goodbye?

By Tonya Kowalski, Washburn University School of Law

End-of-Year Reflections: How Does a Teacher Say Goodbye?

Today I found myself with a rare, small block of unstructured time in between 1L oral arguments.  Rarely at the end of the academic year do I take the opportunity to reflect as I should, before the year’s momentum and energy are dissipated.  I always promise myself that the next year will be different, and this time, in Year 11, I am finally cashing in on that promise to myself. In addition to actually, for once, editing my syllabus and assignment calendar while I still remember what did and didn’t work, I’d like to see what I can do to engage my students in reflection, as well.

A few years ago, I was fortunate to attend one of the Institute’s summer conferences in Spokane and to opt in to a teacher’s reflection retreat with none other than Jean Koh Peters. Drawing upon the seed planted in that workshop, I turned to her A Teacher’s Reflection Book: Exercises, Stories, Invitations, co-authored with Mark Weisberg. The book contains a chapter on how we say our goodbyes to students, particularly at the end of a course.  The chapter asks us to reflect upon what messages our styles of goodbye send to students, and provides some ideas for end-of-course activities. For example, the group may form a circle and offer each other closing thoughts. The instructor can also help bring the course full circle by revising students’ goal statements from the beginning of the course. Prof. Koh Peters has offered students coupons they can cash in when they need her advice even far into the future. Prof. Weisberg shares a series of unsent “postcards” about teaching and learning from Jane Tomkins’s A Life in School, and then encourages students to write their own. They are posted around the room and students circulate to read them in “silent witness.”

In the past, I have often allowed my semesters to end in a rush of paper deadlines and final presentations. This year, I have saved one last class at the very end of the term to work primarily to discuss with students how they can transfer their newly acquired skills to internships. But important as that task is, I plan to also reserve some time to give them back their “getting to know you” index cards from the beginning of the semester, on which they assessed their strengths and weakness in writing, and expressed their hopes and fears for the 1L writing and argument experience. My hope is that if we take some moments in class to reflect alone and together, we will reinforce a strong theme of the course: writing and advocacy are a life-long growth process, and that with effort, profound growth is possible even over a short time.

To see a video in which Profs. Weisberg and Koh Peters discuss the book, including the topic of goodbyes, see https://vimeo.com/41567151.

 

 

Review: The Master’s Tools: Deconstructing the Socratic…

Review: The Master’s Tools: Deconstructing the Socratic…

By Rory Bahadur, Washburn University School of Law

The Master’s Tools: Deconstructing the Socratic Method and its Disparate Impact on Women Through the Prism Of The Equal Protection Doctrine by Tanisha Makeba Bailey
3 MARGINS: MD L.J, RACE, RELIGION, GENDER & CLASS 125 (2003)

This article traces the history of women as law students and empirically documents the tangible disparate impacts of Socratic Pedagogy on female law students. The second half of the article, which is not discussed in this review, is a fascinating discussion about how these disparate impacts may be significant enough to warrant an Equal Protection challenge.

The article initially describes the history of women in legal education and summarizes the exclusionary attitude law schools had toward women by quoting Supreme Court Justice Joseph Bradley as follows:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . . The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother

Next the article does something important and rare; it defines the Socratic Method. It’s modern incarnation is described as, “a masochistic interplay of domineering, and at times evasive, professors attempting to inform humiliated, and silenced students.” The author describes this method as both humiliating and debilitating, concluding that the gravity of the effect on female law students is simply ignored. She concludes, “the Socratic Method impairs the ability of women law students to perform and excel academically, leading to a crippling of their long-term performance in terms of grade-based opportunities.”

She uses interviews, testimony, and data to quantify the effects of Socratic teaching on female law students. She groups the effects into two broad categories: silencing and grade disparity. Components of the silencing category are actual silencing of law students who are not comfortable interacting in a Socratic class, the oppressive atmosphere of the Socratic classroom and the resulting psychological debilitation it causes.

Grade disparity is documented by comparing prelaw school academic success and rank of entering male and female students with the ranks after the first year of law school. The data clearly indicates that something favors the increased class rank of the male students after the first year of law school. Her conclusion is summarized as follows; “The fact that women consistently academically outrank men prior to law school admission, and then during law school their grades become grossly disproportionate, reflects the egregious effects of the Socratic Method.”

While the documentation of these effects is something we all need to take seriously if we are to provide the same opportunities for success for all our law students regardless of gender, another crucial fact is the conclusion the author reaches when she describes the recommended pedagogy for minimizing the disparate impact on female law students. The author suggests in part, a pedagogy based on the “ethic of care, which includes “using alternative methods of teaching, giving more exercises, practice examinations, and other feedback . . . .”

Even if you are a Socratic diehard, the assumption is that student learning is something every law professor cares deeply about. If that assumption holds true, then we cannot dismiss the almost normative identity of this author’s recommendations and those of the Carnegie and Best Practices Reports on legal education.

 

Review: The Inseparability of Professionalism and Personal Satisfaction…

Review: The Inseparability of Professionalism and Personal Satisfaction…

By Jeremiah A. Ho, University of Massachusetts School of Law

Lawrence S. Krieger, The Inseparability of Professionalism and Personal Satisfaction: Perspectives on Values, Integrity, and Happiness, 11 Clinical L. Rev. 425 (2005).

Through his writings and teachings, Professor Lawrence Krieger has devoted a notable—dare I say, even honorable—body of work on the humanistic side of lawyering.  Thus, even though his article, The Inseparability of Professionalism and Personal Satisfaction: Perspectives on Values, Integrity, and Happiness, was published more than a decade ago, it still reads with relevance today, especially in light of the many worries that law teachers have expressed regarding the professionalism issues with current law students.  His article here first discusses reasons why law schools have been teaching a limited sense of professionalism—restricted to only “telling law students and lawyers that they should act in certain ways” for either vaguely described “noble reasons” or singly to avoid bar discipline.  Then it illustrates how to redirect that teaching to a more noble and personally fulfilling sense of professionalism.  Such training should be more specific, relevant, and profound, according to Krieger’s article.  It ought to be tied to professional satisfaction, happiness, and a deep set of inherently principled values.  Through humanistic and empirical science, he shows why this connection is true and how to instill a deeper, more personally satisfying sense of professionalism in our students.

To connect professionalism to career and life satisfaction, Krieger begins from a place of dissatisfaction, describing the empirical evidence amongst lawyers that reveal their low career satisfaction and high concerns for mental health issues.  “Those values and motivations that promote or attend professionalism have been empirically shown to correlate with well-being and life satisfaction, while those that undermine or discourage professionalism empirically correlate with distress and dissatisfaction,” Krieger writes.  He also relies on the Maslow hierarchy of human needs that explains people’s drives for growth and satisfaction:  people pursuing higher needs, such as self-actualization and esteem, tend to experience growth motivation and psychological maturity; those pursuing lower needs, such as survival, security, competence, belonging, and respect from others, experience more deficiency motivation accompanied by minimal life satisfaction.  All of these correlations are also supported by modern psychological research, which Krieger examines.  Between intrinsic values of purpose and personal happiness and external motivators such as money or status, modern psychological research builds on Maslow to show that “when intrinsic values and motivation dominate a person’s choices she tends to experience satisfaction and well-being, whereas when extrinsic values and motivation are most important to her she will experience angst and distress.”  Those values that promote happiness are likely to lead to professional behavior; while the vice versa seems to be true.  Furthermore, Krieger finds that the intrinsic value of integrity is tied to professionalism and satisfaction.

Because law school and the legal profession places heavy emphasis of external rewards, law students can be led astray from professionalism and career happiness by their drive to seek out such extrinsic motivators.  In this way, Krieger offers a teaching exercise to instill in students an awareness of the correlation between intrinsic values and professionalism.  He makes his students actively seek out intrinsic values by having them write out hypothetical eulogies of themselves followed by lessons on an idealized professionalism that seeks out noble behavior, by introducing research on the dismal mental and emotional well-being of attorneys, as well as studies on the typical goals and behaviors of happy and healthy individuals.  After such lessons, Krieger asks his students to revisit that eulogy to identify intrinsic values that students have written about in regards to themselves.  Then students must match up those identified values with values that promote professionalism.

As Krieger notes, “[t]he results of this exercise are illuminating, because they show students and lawyers the kinds of things that matter most deeply to them.”  In running this exercise, Krieger has observed that his students tend to express intrinsic values and virtues in their eulogies rather than external ones.  Ultimately, this exercise helps his students differentiate the intrinsic values that lead to personal fulfillment and professionalism from values that would distort their sense of professionalism and career identity and possibly hinder personal fulfillment.  It’s an intriguing exercise, odd in the sense of what’s required is writing one’s own eulogy, but goal-oriented in nature and form, where the law teacher shapes students’ conception of professionalism by getting them to actively acknowledge on their own the types of intrinsic values that professionalism embodies and what values they ought to seek.
 

 

Utilizing Various Learning Styles and Repetition to Enhance Understanding

Utilizing Various Learning Styles and Repetition to Enhance Understanding

By Heidi Holland, Gonzaga University School of Law

Most of us are familiar with the concept of learning styles and the VARK model initially developed in 1987 by Neil Fleming.  VARK is an acronym for Visual, Aural, Read/write, and Kinesthetic sensory modalities that are used for learning information.

Visual learners prefer graphic depictions of information.  Auditory learners prefer information presented in lectures, group discussions, etc.  Read/write learners prefer to have information presented as words. Finally, kinesthetic learners prefer “demonstrations, simulations, [and] videos . . . .” Most people are, however, multimodal.[1]

How then does one incorporate those different styles in a way that encourages our students to learn more effectively?  Here is one example of what I have done in teaching legal research.

Recently, I was teaching my students how to do statutory research.  Each of my sections is approximately fifteen students, and I break each section into two smaller groups for this exercise.  I have a short fact pattern that I present to the students and then show them how I would use the annotated code to find the statute, notes of decision, and cases.  Then, I break up the students into smaller groups and have them do a very short research problem following the same steps.  They are each given a handout with the problem and detailed instructions.  I rotate among the groups to answer questions and redirect them as necessary.  Once they have all found “the answer” to the problem, we regroup and discuss.  At that point, I give the students homework involving a slightly more complicated fact pattern.  The detailed homework instructions include a research flowchart and require them to follow the same steps we did together during our class time.

During the next class period, we walk through step-by-step the research they should have done for homework. The homework review includes a PowerPoint presentation with screenshots of what they would have seen in the books or online.

By the time we’re done, students will have watched me do research while I explained it, done it with a classmate under my supervision, done it on their own, and then reviewed the process again in class.  Visual learners will have seen graphic depictions of the research process in the homework instructions and the homework review’s PowerPoint presentation. Auditory learners will have heard the information in lecture, peer discussion, and class discussion.  Read/write learners will have class handouts with instructions, homework instructions, and PowerPoint review (which I also post on TWEN). Finally, kinesthetic learners will have the benefit of demonstration and then personal application in class and for homework.  Ultimately, the goal is to facilitate learning.  By utilizing various learning styles and repetition, our students’ understanding can be enhanced.

[1] www.vark-learn.com

Conceptual Ideas Held By Students About Learning

Conceptual Ideas Held By Students About Learning

By Sandra Simpson, Gonzaga University School of Law

Last week, I had my students in Legal Research and Writing II complete a survey to help me figure out whether they had “healthy” concepts about learning. Studies show that students who are intrinsically motivated to learn show more positive conceptual learning traits and tend to be more successful in school.  Students who are extrinsically motivated to learn show more negative conceptual learning traits and tend to be less successful in school.  Examples of positive conceptual learning traits are having inherent curiosity, desiring to master the material, feeling capable of doing well, and willing to ask questions if unsure.  Examples of negative conceptual learning traits are wanting to score high on tests to be ranked above their peers, believing test-taking abilities are something with which one is born, believing they are not capable of success, and unwillingness to ask for clarification if he or she does not understand something.

Wanting to see where my students were on this scale, I gave them 7 questions to answer for which they could chose 5 if they strongly agreed, 3 if they agreed, and 1 if they strongly disagreed.  They could also chose 4 or 2 if they were in between.

1.    I want high scores on assessments so I know I mastered the material.
2.    I want high scores on assessments so I am ranked above my peers.
3.    I believe capability to achieve a high score on assessments is largely something a person is born with.
4.    I believe capability to achieve a high score on assessments is something that can be learned.
5.    When I do not understand something academically, I generally will ask for clarification from the instructor or other sources.
6.    When I do not understand something academically, I generally will not ask for clarification from the instructor or other sources.
7.    I believe I am capable of achieving high scores on assessments in law school.

The data showed me that my class, as a whole, has very positive conceptual learning traits, which is likely why they have been so easy to teach.  I was surprised that most of the students (90%) answered a 4 or 5 to question #4, meaning they believe test taking can be learned.  Obviously, as you might expect 90% of the class put a 1 or 2 for question #3, which says that scoring high on an assessment is something a person is born with.  100% of my students put a 3, 4, or 5 on question number 5 saying they would generally ask for help if needed.  Most students (80%) answered a 4 or 5 to both questions #1 and #2, meaning they had two goals to scoring high on assessments.

So what does this all mean?  Getting to a student’s or a group of students’ motivations in school is difficult.  This data has helped me shape my teaching.  I know they want to master the material so I point out everything I am doing to help them master the material. I also give them suggestions on how they can help themselves master the material.  Lastly, knowing they are willing to ask questions encourages me to give them plenty of time to ask questions in class.  Knowing I have a classroom full of students with largely positive conceptual learning traits has allowed me to push them harder as well.

 

Using a “Ladder of Abstraction” in Learning the Law

Using a “Ladder of Abstraction” in Learning the Law

By Barbara Lentz, Wake Forest University and WFU School of Law

Law students say learning in law school is confusing, hard, and non-intuitive. In the traditional law school Socratic learning model, a teacher asks a series of oral questions about a reported decision eliciting verbal answers from a classroom of students in order to form a broader legal rule and explain an abstract concept. This oral questioning (often without the teacher providing feedback on how or why answers were incorrect) usually does not align with students’ prior learning experiences, and students report being mystified by the process.

Students benefit from learning a systematic approach to make thinking visible. By explicitly documenting the process, students are better able to state rules from one or more decisions and gain deeper understanding of the abstract concepts. In my law courses, I explain and employ a written “Ladder of Abstraction” to explicitly record each step in the thinking process and to provide a model students can apply to better understand and communicate abstract concepts by developing the ability to move up and down levels of abstraction.

The Ladder of Abstraction was described by S.I. Hayakawa almost eighty years ago.1 The ladder is both a concrete visual image and a concept used to illustrate how language and meaning evolves from bottom rung concrete terms (casting a vote in the mayoral election) to top rung abstract concepts (democracy). The number of “rungs” corresponds to the number of terms used to move from the concrete to the abstract. Thus, each step of reasoning from concrete to abstract is explicitly recorded, making the internal thinking process visual to students.

For example, in an orientation class with international lawyers beginning their LLM program, I use the ladder of abstraction to demonstrate how a rule from a common law dog bite decision could be stated as an abstract legal principle and applied to determine liability for any injury or event, such as environmental contamination by a corporation’s manufacturing processes. As with any Ladder of Abstraction, the starting point is writing the concrete terms at the bottom of each ladder. In this example, the court finds that the owner of a golden retriever that bites a person without provocation is not liable. I write the bottom-rung concrete terms used in the specific rule at the bottom of the classroom whiteboard in a series of individual ladders. By working through a number of hypotheticals, the very concrete term and image of a particular dog owner becomes animal owner, owner, and eventually the much more abstract potentially responsible party. At each point in our discussion, each term is explicitly identified and written on the corresponding ascending rung of the ladder to illustrate the incremental development of an abstract rule from our concrete starting point.

During our class exercise, I also explain why the ladder is helpful in recording each step of rule development, and how students can apply the process working on their own.
After the shared class exercise, students can individually complete a simple, short ladder to practice applying the model. To encourage transfer of learning, the individual assignment can ask students to list one or more situations where they think the ladder of abstraction will be helpful. The professor might suggest that students include in their answers not only legal education scenarios but also any situation where students need to be able to communicate abstract ideas to a reader or audience.

Once students learn the systematic Ladder of Abstraction approach they are better able not only to form abstract rules, but also to self-assess and to share their thinking process. In the classroom, there is a common visual and shared terminology to check one another’s rule development and to encourage students to think explicitly about levels of abstraction. In my other courses, from second semester Contracts to upper level electives like Nonprofit Organization Law, I employ the Ladder of Abstraction model to help students find meaning by moving up and down the ladder to select the appropriate level of abstraction. In preparing oral presentations or writing documents, I remind students to ground their abstract ideas in concrete examples, and to share their movement between abstract and concrete with the listener or reader to improve communication.

1 See S.I. Hayakawa, Language in Thought and Action (5th ed. 1991).

Review: Grit

Review: Grit

Reviewed By Prof. Emily Grant, Washburn University School of Law

Angela Duckworth, Grit (2016)

Dr. Angela Duckworth is a professor of psychology at the University of Pennsylvania.  Her book Grit came out last year, and it is spectacular.

The concept of grit includes a combination of passion and perseverance.  Gritty people have both determination and direction. The notion of grit is correlated with ideas of industriousness, creativity, hope, and conscientiousness.  And that character trait, Dr. Duckworth argues, is responsible for high levels of achievement, even more so than sheer talent, ability, or intellect.  To be clear, Dr. Duckworth doesn’t ignore the existence and importance of talent, but she asserts that “a focus on talent distracts us from something that is at least as important, and that is effort.”

In the first part of the book, Dr. Duckworth makes the case that grit matters.  She discusses various research and psychological studies, and she shares interviews with people from all walks of life including West Point cadets and professional athletes and school teachers and business moguls.  She also includes a ten-question self-assessment to measure how gritty you are (see her website: https://angeladuckworth.com/grit-scale/) to measure how gritty you are.  Dr. Duckworth then discusses how to grow your own grit, i.e., how to develop and nurture passion and perseverance in yourself.

But it’s the last part of the book that was most intriguing to me as an educator (and frankly, as a parent)—how to help cultivate grit in other people.  She talks about parenting for grit and about how to create a culture of grit.  It is this portion of the book that I will be rereading before the start of every semester to contemplate how I can encourage passion and perseverance in my students.

In addition to being substantively fascinating, the book was wonderful to read.  It was a powerful book for me as a person, as a parent, and as a professor in charge of encouraging high levels of achievement in my students.  This is the kind of book I will give as a gift for every graduation to which I am invited.  I will likely make my own son read it when he finishes high school and starts out on whatever path is next.  I would like every incoming law student to read it.  You most definitely should as well.

If you’d like a taste of Dr. Duckworth’s research and theory, you can listen to her six-minute TED talk on the topic:

https://www.ted.com/talks/angela_lee_duckworth_grit_the_power_of_passion_and_perseverance

Or a 45-minute Freakonomics podcast: http://freakonomics.com/podcast/grit/

Turning Socratic Lecture Notes Into A Handout

Turning Socratic Lecture Notes Into A Handout

By Rory D. Bahadur, Washburn University School of Law

This semester I was desperate to increase the engagement in my civil procedure class.  These were upper division students who were taking the “other” civil procedure class.  My institution, in response to civil procedure being included on the MBE examination, revamped the civil procedure curriculum.  The class is divided into a 4-credit class called civil procedure I which deals with the rules, pleading, motion practice and subject matter jurisdiction. For the most part students find this class engaging and directly related to what most of them will be doing in their clerkships.

Then in their third semester of law school students are required to take the 2-credit, civil procedure II class.  This aforementioned other class, deals with the Erie doctrine, personal jurisdiction, res judicata, collateral estoppel, appeals and other topics students, at least in my experience, find less exciting.

In the latter half of the semester, I was scheduled to teach the right to a jury trial including the dreaded Beacon Theaters and Dairy Queen.  I was keenly aware that the Socratic method had outlived its usefulness in this class where students found the material really difficult.  Detecting a lack of engagement by the students who were not on the Socratic spot, I decided to try something different.

I plan classes around questions and my lecture notes include the questions and the answers to the questions I eventually hope to guide the students to via a Socratic discussion.  For this particular class I simply went through my lecture notes and deleted the answers.

I distributed this “questions only” document to the class at the start of what was originally planned as a Socratic lecture on the topic.  Next I broke the class into groups of about 4 and we spent the class time having them come up with the answers to the questions in groups.

The level of engagement was incredible.  The class was transformed into a beehive of activity and I would call on one group and ask them to discuss what they thought the answer was.  If the answer was not completely teased out then I would call on another group.

In addition to increasing engagement, the peer based method allowed faster and more confident responses to the questions.  In the groups students were anonymous to me anyway for brief periods that I allocated to them working as a group.  They were more relaxed and were able to come up with more complete answers to the questions than if I had one student targeted in the usual Socratic manner with all the associated stress of being “the one.”

I used the introductory material of the lecture in this way and then we went on to a more traditional Socratic class for the more complex aspects of the right to jury trial.  However having employed this collaborative and engaged pedagogy for the first segment of the class, the engagement in the remainder of the more traditionally conducted class was much higher than was the norm previously.  I employed it a few more times in the semester.

This is a very simple way to increase class engagement that lead to no extra labor on the part of a Socratic teacher, other than a quick edit of preexisting lecture notes.  As I type this it also dawns on me that this method could be used as the basis of a flipped classroom where students can be given the questions before class so that their reading is more focused and the actual class time can be spent discussing the doctrine in great depth because the students would likely have gleaned more from the reading.

Finally, I used an assessment trick I learned from Michael Schwartz which allowed me to gage the efficacy of this technique.  I handed out 3X5 flash cards to each student later on in the semester and basically asked, what topic was foggiest and what topic was clearest for them in the class.  Many students wrote the equivalent of, “The clearest things for me were whatever we went over with the handouts.”

Attached is the document I described above which I used for the introductory right to jury trial class.

 

Review:  Lawyers at Work: A Study of the Reading…

Review: Lawyers at Work: A Study of the Reading…

Reviewed by Sandra Simpson, Gonzaga University School of Law

Article: “Lawyers at Work: A Study of the Reading, Writing, and Communication Practices of Legal Professionals”[1]
By Ann Sinsheimer and David Herring Professors of Legal Writing at University of Pittsburg School of Law.

This article reports on the results of an ethnographic study of associate attorneys in the workplace, specifically studying what they actually do in terms of reading, writing, and communicating.  Not surprisingly, the study found that associate attorneys spend most of their time reading, writing, and communicating.  The fascinating part of this study is the finding that associates are not reading many judicial opinions, writing many formal memos, or communicating in a courtroom setting.

The study found that lawyering for junior associates was fundamentally about reading: both digitally and in print.  They read primary authority, but most frequently, they read broad-based secondary authorities and non-legal texts.  These associates read often in print and bounced between free on-line sources and paid on-line sources, being very conscious of the high price of the paid on-line resources.  Reading closely and carefully was important to the associates but many times they skimmed and scanned documents in an effort to efficiently ferret out the importance of the document.  Associates had to quickly hone their ability to read with a purpose: to solve a problem.

The study also found that associates did write: a process which began with reading and rereading the information they had gathered to substantiate their writing.  Often working from templates, associates spent a good amount of time editing their writing before sending their work to their supervisor.  As email represents a large portion of their writing, much effort was spent honing their writing, focusing on word choice, tone, and content.

Not surprisingly, the environments where these lawyers worked were stressful, even the most congenial of the workplaces were stressful.  Although derived from numerous sources, the most common sources of stresses were being pressed for time and needing to juggle multiple tasks at one time.  Working with constant interruptions also led to high levels of stress.  Of note, the authors found that “[t]he ability of the attorneys to understand their role influenced their sense of well-being as well as their capacity to successfully perform their reading and writing tasks.”

The article goes on to discuss other interpersonal skills exercised and needed to help associates be successful, namely teamwork (in a vertical structure with a senior partner), organization, and time management.  Prioritizing and communication as a team rose to the top as critical skills.

Wrapping up the article, the authors suggest law schools look at helping students read for the purpose of problem solving.  As for writing, the authors suggest law schools, across their curriculum, have students create emails for various purposes.  Further, teaching students to use and change templates or forms is an invaluable skill. Lastly, law schools should create opportunities for law students to practice the interpersonal and communication skills necessary to navigate the “sort of high pressure and hierarchical workplaces” observed in the study.  The article gives several suggestions on exercises to use.

[1] The article can be found at http://www.legalwritingjournal.org/volume-21/

 

Steering Students Back to the Rule

Steering Students Back to the Rule

By Jeremiah A. HO, University of Massachusetts School of Law

It’s undeniable to me that each incoming class of 1Ls that I’ve ever taught has always exhibited a collective personality of its own from the prior one.  Despite this, I’m also amused by a commonality that each first-year Contracts class has shared with me—at least in the first semester of law school.  Whether it is because I teach in Massachusetts (where the politics can sometimes be loud, colorful, and brash) or whether it is just that law students—and lawyers, by extension—are intrinsically a breed of vocally assertive people, my first-year students always enter my class with a fervor to argue that they are legally “right” about a contract dispute, even though they are untrained and usually have little background in the subject area.  They like to reach for their gut instincts based on the facts they read in cases or hypos I give them.  They don’t always tend to realize that they’re to learn the law.

On the one hand, it’s great that they have this built-in passion for opinion and advocacy.  It shows me that they have energy and appetite for lawyering.  But if not soon reinforced by a method of legal reasoning (perhaps even à la “thinking like a lawyer”), this passion can also lead to bad habits and imprecise, undisciplined lawyering.

My lesson here is about how to train and direct students early on to remember that when they are faced with a legal dispute or hypothetical, their first strategy is to not go to their gut instincts and raw passion, but to go strategically to the law.  Thus, when they are given a fact pattern, they are not arguing why one side should prevail based on their own reading of facts or their own sense of justice or fairness, but that they first examine what rule of law might be pertinent for grafting onto this particular set of facts in order to come to a lawyerly conclusion.   This is a basic skill of legal reasoning that can be obscured by the excitement of starting law school, the mysterious (and sometimes confusing) nature of Socratic lectures, and the intensity of the first-year curriculum.  But by the end of the first year, if students don’t realize in a disciplined way that they always should go back to the rules, then their law courses have done them a disservice.

One way in which I have addressed and developed this habit of “going back to the rules” is by often introducing a new doctrinal unit with a “master” fact pattern hypothetical I can use to demonstrate a classic scenario that involves that new doctrine.  The reason I call this hypo a “master” fact pattern is because I will give it to students to try solve the problem when they don’t have the doctrinal rules yet, then use the same fact pattern to introduce and teach them the doctrine, and lastly re-visit the fact pattern as we get into the cases and pose variations on the hypo that illustrates the nuances in the doctrine.  My hope is multi-faceted:  First, without knowing the particular rules of law, my students first see the factual hypothetical and anticipate a resolution based on their gut reactions.  Then as they are taught doctrine in tandem with the hypothetical, they now have an active moment of discovery where the particular legal rules and doctrine reveal how the hypothetical might be resolved in a lawyerly way.  It’s also a good moment to emphasize the utility of the law and to redirect their instincts to reach for the law first, instead of resorting to arguing facts or fairness.  It can also be a good place to critique the law and bring in policy or demonstrate lawyerly analysis.  Lastly, now that they know the rules in tandem with a factual scenario, the variations on the fact pattern continue to reinforce their sense that they should always be thinking, “What’s the rule or doctrine?” at every step of the way.

One example of this is when I teach the unit on U.C.C. 2-207 Battle of the Forms to my students.   The unit is sequenced after we’ve gone through the mirror image rule for contractual acceptances.   Before unleashing the U.C.C. provision on the students, I start with an in-class hypo that involves a sale of goods between a wholesaler supplier and a product manufacturer.  Despite firm and identical agreement of the type of goods, price, and quantity, the problem involves differences in the boilerplate fine print on the back of the parties’ respective documents.  Students will know that under the classic mirror image rule there’s no contract technically.  But if I tell them that issues like this occur in business transactions countless times every day, involving tens of millions of dollars, they are usually perturbed and left trying to figure out what do we do when these parties incur liabilities, such as a product defect.  What do we do?

I like to stir up controversy because it usually makes them pay attention.  That’s when I tell them that as lawyers we have to go back to the law, and I then introduce 2-207 under the U.C.C., whose purpose, among others, is to resolve issues such as discrepant fine terms.  Then, we work through the fact pattern.  What I’ve essentially done is to first give my students a problem without the law, then incite their outrage or passion or inquisitiveness, and at last systematically direct them to reach for a legal solution by going to the rules rather than analyzing the facts first.  Use your brain, folks, particularly your left brain.

This works well as an assessment tool as well.  In most courses I teach, I usually begin with the first day with a fact pattern that runs through from A-to-Z all of the major issues of the subject area.  I make my students answer the question even though they don’t know the law yet.  I want them to feel inadequate without the rules of law that would otherwise help them investigate and problem-solve like lawyers.  Then gradually as we move through the semester, I will often find appropriate moments later, perhaps after we’ve learned a few units, to pull out that same fact pattern and ask them again to examine the problem and see how much better they can resolve the hypo now that they have had some law.  At the end of the semester, we usually look through the same problem one final time and hopefully students will have a good assessment tool for gauging how much doctrine they know now to analyze the question as well as a fundamental understanding that a basic strategy in legal reasoning is to reach for the law first.