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Review: Teaching Law Students to Teach Themselves…

Review: Teaching Law Students to Teach Themselves…

By Rory Bahadur, Washburn University School of Law

Teaching Law Students to Teach Themselves: Using Lessons from Educational Psychology to Shape Self-Regulated Learners, 59 Wayne L. Rev. 311

In her article, “Teaching Law Students to Teach Themselves: Using Lessons from Educational Psychology to Shape Self-Regulated Learners,” Elizabeth Bloom sets forth a very user friendly and informative road map for “maximiz[ing] the learning experience” to help a “diverse population of law students become self-regulated learners.”

The article initially defines self-regulated learning and discusses its origins in both the cognitivist and constructivist learning theory movements.  She isolates the essential components of self-regulated learning as Schema creation, using prior knowledge to add new knowledge and metacognition.  She concludes by precisely describing self-regulated learning as consisting of the following three phases: forethought, performance, and reflection.  The unique aspect of this article is that it then describes concretely and tangibly what each of these phases looks like or consists of rather than leaving those terms as isolated amorphous learning buzzwords divorced from the reality of the classroom.

But the article goes even further and provides concrete methodologies to teach self-regulated learning.  These methodologies are broken down into strategies to:

  1. self-regulate motivation,
  2. self-regulate behavior and resources and,
  3. self-regulate cognition.

This article is a must read for anyone seeking to bridge the divide between the copious abstract, academic literature on teaching and learning and practical strategies to implement these methodologies without being overwhelmed by terms and buzzwords which seem foreign to may faculty members.

 

Review: From Seminar to Simulation: Wading Out to the Third Wave

Review: From Seminar to Simulation: Wading Out to the Third Wave

By Tonya Krause-Phelan, WMU-Cooley Law School

From Seminar to Simulation: Wading Out to the Third Wave by Margaret Moore Jackson
19 JOURNAL OF GENDER, RACE, AND JUSTICE 127 (2016)

From Seminar to Simulation: Wading Out to the Third Wave encourages legal educators to embrace simulated teaching in light of the newly-adopted ABA standards relating to experiential learning. Because ABA Standard 303(a)(3) requires students to complete at least six credits of experiential coursework which can be earned in law clinics, field placements, or simulation courses, Professor Jackson suggests that simulation teaching can be integrated into existing courses by reformatting seminars, those upper-level, reading and discussion-based courses that typically focus on specialized areas of law not usually tested on the bar exam. Reformatting a seminar course as a simulation course allows faculty to accomplish two significant goals. First, it provides an experiential learning opportunity for students that meets, if not exceeds, the new requirement. Second, it can also create an opportunity for students to develop and use professional values as they learn to apply the law.

Beyond meeting the new standards, including simulations as experiential teaching is a way professors can foster integrated learning. Many professors already incorporate classroom exercises and role play into their doctrinal classes. Even though these efforts are designed to develop students’ professional skills, they do not satisfy the ABA’s definition of a simulation course. To comply with Standard 304, a simulation course must reasonably assimilate the experience of   client representation or engage in other lawyering tasks in a set of facts and circumstances devised or adopted by a faculty member. The simulation course requires faculty to directly supervise the student’s performance followed by faculty feedback and student self-evaluation. Finally, there must be a classroom instructional component.

From a faculty perspective, a potential barrier to merging simulated teaching and experiential learning into existing courses is the time-consuming nature of simulation teaching. Faculty are also apprehensive about how much subject matter will have to be sacrificed to carve out enough time for the simulation component. Despite the potential difficulties, there are many benefits to simulation teaching. For starters, simulation teaching assists in applied knowledge and introductory skills development in that it cements learning of substantive law. Faculty can continue informal doctrinal teaching as students engage in simulated roles by structuring assignments that teach practical lawyering skills that will also reinforce their learning of legal analysis. And because simulated teaching fosters concentrated learning of professional skills and values, it also promotes justice, underscores service to the community, and helps students to overcome assumptions and inherent biases.

Although the ABA requirements for a simulation course appear formidable, Professor Jackson suggests that restructuring courses to provide students with six credits of experiential education might not be as daunting a task as some might think. Professor Jackson provided a template for creating a plan convert a seminar course into a simulation course based on her housing discrimination class. But the format easily translates to any substantive class or seminar. Begin by identifying the competencies students should achieve by the end of the course. Make sure to envision these competencies in the context of the area of law. The objectives should be relevant and realistic in the area of practice. Be careful to limit the goals to an amount that can be effectively implemented and assessed. Consider a format that focusses on repetition and refinement of targeted skills in relation to more elaborate doctrine.

For example, in Professor Jackson’s fair housing seminar, students were assigned to represent a hypothetical client. The assignments required students to know the applicable law, provide client advice based on the law and the particular situation, communicate with other lawyers, judges, and real estate professionals as the client’s case required, and to be alert to potential injustices. Supplementing exercises included professional writing activities and oral presentations to a community audience.  A final component of the exercises encouraged students to focus on client communication designed to develop relational skills and empathy, dispel students’ false assumptions about the role of law in society, and to develop their self-conceptions as professionals to promote justice.

Transitioning to simulation teaching provides faculty with opportunities to connect learning the law with developing the skills, instincts, and inclinations to use the law to promote justice. Whether a professor seeking to augment a doctrinal class with experiential learning exercises or a professor looking to dive into the full spectrum of simulated teaching, From Seminar to Simulation: Wading Out to the Third Wave provides the pedagogical support and procedural format to transition to simulation teaching.

 

How You and Your Students Can Benefit From Stone Soup Next Year

How You and Your Students Can Benefit From Stone Soup Next Year

By John M. Lande, University of Missouri School of Law

The University of Missouri Law School started the Stone Soup Project about a year ago to incorporate more knowledge about actual practice in legal education.

Stone Soup contributes to a more balanced educational diet, adding context of disputes and more focus on parties.  Readings on legal doctrine generally are extremely acontextual.  Of course, students get value in reading excerpts of appellate case reports to learn about legal doctrine and analysis.  Similarly, students get value in reading about practice theory.

But I think that most law students get too little education about how cases actually look to lawyers.  In real life, cases are full of facts, evidence, uncertainty, risk analysis, interests, relationships, and emotions, which provide context that is systematically stripped out of most of our teaching materials.

And parties – central characters in lawyers’ work – typically are portrayed as cardboard figures who are included merely to demonstrate our teachings, not as the principals, who lawyers serve.

Readers of this blog know this.  People – maybe including you – have been saying this for a long, long time.  Indeed, this has been a major motivation for clinical and some other instruction.

Stone Soup is another systematic effort to provide a more balanced educational diet for students by including more of these perspectives in our teaching.

How Stone Soup Works

Since we started the Project about a year ago, we have engaged almost 1000 students in 40 classes covering 12 subjects, taught by 32 faculty from 25 schools in 3 countries.

Faculty generally have assigned students to conduct interviews about actual cases and/or practitioners’ backgrounds, philosophies, and practices.  Some faculty assigned students to observe court proceedings or mediations.  You can tailor an assignment to fit your educational objectives.

Most assignments were in traditional ADR courses, but faculty also used Stone Soup assignments in other courses including Access to Justice, Evidence, Relational Lawyering, Resolving Community Civil Rights Disputes, and Trusts and Estates.  Faculty could use them in almost any course, such as Labor Law, Employment Discrimination, Professional Responsibility, Civil Procedure, and Criminal Law, among many others.

Stone Soup faculty assessed their courses, identifying what worked well, what students learned that they would not have learned without the assignment, and what faculty would do differently in the future.  Here’s a collection of their assessments.

Faculty consistently reported outstanding results that far exceeded our expectations.  Stone Soup has provided many benefits including:

  • increasing students’ exposure to the real world of practice
  • helping students develop critically-important interviewing and analysis skills
  • identifying how theory does and doesn’t map well onto actual practice
  • supplementing faculty’s knowledge, especially for faculty who haven’t practiced in the subjects they are teaching – or haven’t practiced at all
  • increasing students’ and faculty’s enjoyment of the courses

Faculty who used Stone Soup assignments in their courses this year generally plan to use Stone Soup again with little or no change.

How You Can Use Stone Soup

The initial experiences yield some general suggestions for using Stone Soup.  In particular, faculty should require students to complete interviews or observations as soon as appropriate in a course, and should schedule time in class to discuss what students learned.  Discussing insights from these assignments early in a semester provides a base of experience that everyone can refer to during the rest of the course.

Here’s a table identifying characteristics of Stone Soup courses and including links to faculty assessments of the courses.  The table demonstrates the incredible creativity of faculty in tailoring assignments to fit their instructional goals and circumstances.  For each course, it shows:

  • Class size
  • Description of the Stone Soup assignment
  • Whether the assignment was required, one option of an assignment, or extra credit
  • Assigned paper length
  • Due date
  • Percentage of grade, if any
  • Whether the results of the assignment were discussed in class

Some faculty like the Stone Soup idea generally but wonder if it work in their courses or feel hesitant for other reasons.  This post identifies some colleagues’ concerns and responses to those concerns.  In particular, the assignments need not add much, if any, workload, students generally can find interview subjects without faculty assistance, and Stone Soup can work well in almost any law school course.

If you would like more information, you can read this report on the Project’s first year and/or get in touch with me.

If you would like to join the roster of colleagues using a Stone Soup assignment next year, please let me know the courses(s) and semester(s) in which you would use it.

Review:  Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment

Review: Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment

Reviewed by Jeremiah A. Ho, University of Massachusetts School of Law

Review: Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment and Summary Judgment Success, 22 J. Leg. Writing Inst. ___ (2018).

SSRN Article Link

By Shaun B. Spencer and Adam Feldman

Because I teach first-year law students, the spring semester always brings back recollections of the first-year legal writing experience, culminating with the classic appellate brief assignment.  When I came across my colleague Professor Shaun Spencer’s latest article, co-written with Adam Feldman, a J.D./Ph.D post-doctoral fellow at Columbia Law, I thought it was apt to share—not just because the article’s main handle pertains to the topic of legal writing, but also because of what it implies for law teaching generally.  The article is titled, Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment Success, at it is forthcoming this year from the Journal of the Legal Writing Institute.

At the start of Spencer and Feldman’s article, the piece seems exclusively relevant for practitioners because it presents us with a statistical relationship between the readability of summary judgment briefs to the rate of favorable case outcomes.  Thus, in terms of readability, proficient legal writing is a valuable commodity in law practice according to their results.  However, the academic implication is also clear because legal writing is also what law schools teach.  The idea of effective legal writing lies at the heart of various legal writing textbooks and numerous pieces of scholarship on the subject.  Since Langdell, legal writing classes have been welded into the law school curriculum.  And ABA accreditation standards reinforce that tradition of teaching legal writing by mandating that students take writing courses throughout their law school careers.  In this way, Spencer and Feldman’s article is one to observe.  Their empirical study underscores the value of instruction and competency for the art and skill of legal writing.

Judges might hesitate to divulge that the quality of a practitioner’s writing can influence judicial decision-making of a case—since this revelation would clash with the idea that cases are resolved based on adjudication of law and facts, rather than on the skills and proficiency of practitioners.  However, several existing scholarly studies that have already examined appellate brief writing and correlated subjectivity and readability to favorable outcomes.  In their study, Spencer and Feldman now bring the empirical lens to state and federal trial court briefs in order to determine whether a positive association exists between brief readability and case outcomes.  Here, they frame two hypotheses.  First, “[i]ncreased brief readability will lead to a greater likelihood that a party will prevail on a motion for summary judgment.”  Secondly, “[w]hen the moving party’s brief is more readable than the non-moving party’s brief, the moving party will be more likely to prevail on a motion for summary judgment.”  With these hypotheses raised, they embark to test their hunches.

Spencer and Feldman use cognitive theory to explain their hypotheses.  Because the brain processes familiar and unfamiliar information differently, the fluency of information presented affects whether a person would process new information associatively or analytically.  The more fluent the information presented is, the more one tends to process associatively, and vice versa—the less fluent, the more one processes analytically.  In writing, fluency can be affected by formatting and “the look” of the document—as predicated for example by font, color, and spacing—as well as readability-related characteristics such as length and complexity of sentences, grammar, and vocabulary.

From here, the authors outline the research method they designed that includes their reasoning for examining summary judgment briefs, a protocol for selecting briefs for their sample, and the definition and coding of variables.  In total, they looked at 654 total briefs in 327 cases from both federal and state courts.  What Spencer and Feldman found was that “[w]hen the moving party’s brief was more readable, the moving party was typically more likely to prevail[.]” Also, “[m]oving from cases where the moving party’s brief is significantly less readable than the non-moving party’s brief to the opposite situations, the likelihood that the moving party prevails on the motion for summary judgment more than doubles from 42% to 85%.”  Both findings appear consistent with their initial hypotheses.  The authors explain alternative theories for these results but ultimately dismiss those theories for the correlation they reached.

For lawyers and advocates, this study presents an important focus on effective and presentable writing in litigation.  However, although Spencer and Feldman’s study does not prove a causal relationship between readability of briefs and favorable case outcomes, the authors do call out that the strong correlation raised here does bolster “the ever-increasing emphasis on legal writing instruction in law school curricula, the ABA standards on law school accreditation, and continuing legal education programs.”  Thus, this study lends credibility for elevating the profile and status of legal writing colleagues in law schools across the country.

In reading Spencer and Feldman’s article, I was reminded of the old schoolhouse phrase, “neatness counts”—but here perhaps it’s “readability counts” that is more appropriate.  With readability highly influenced by the proficiency of legal writing, what this study eventually provokes in me as a doctrinal law faculty member can be crystallized into two thoughts.  First, I have a question: does readability correlate to final examination grading or am I as the grader of my final exams doing something else in the grading process (such as assessment) that is conceptually and functionally different from the adjudication process?  Secondly, if readability does correlate to exams (even if I am assessing competency rather than adjudicating cases), then knowing how to affect fluency and readability would be an intrinsic part of the art of lawyering, factoring into the choices and strategies a legal thinker makes in advocacy.  I would see that, other than teaching doctrine, imparting such skills would be part of my job as well.  Teaching it effectively would be another way to help my students engage with the law and help empower them.  Ultimately for me, it is this correlation, drawn from Spencer and Feldman’s study, that resonates most with me.  In this way, beyond “readability counts” for practitioners, their study is also very significant for the teaching of effective lawyering.

 

Using Instant Replay to Teach Standards of Review

Using Instant Replay to Teach Standards of Review

By David Sorkin Associate Professor of Law
The John Marshall Law School

Using Instant Replay to Teach Standards of Review
David E. Sorkin, The John Marshall Law School
Bepress – David Sorkin 

A colleague recently posted a question on the Legal Writing Institute’s mailing list, seeking ideas for “fun” ways to teach students about standards of appellate review. Several other colleagues responded with suggestions, some of them noting the similarity between legal standards of review and the standard for overturning a official’s call in a football game or other sporting event. The point has also been the subject of considerable legal scholarship.[1]

I use an exercise in my first-year legal writing classes based upon this similarity. After introducing the concept of standards of appellate review, I show my students a brief clip of a football play involving a close call, and ask students to articulate the relevant rule —for example, a forward pass is illegal after the ball has crossed the line of scrimmage. I tell students to apply that rule to the facts they have observed and vote on the appropriate call.

Next, I show the actual call that was made by the field official. Some students will undoubtedly disagree with that call and suggest that it ought to have been challenged. Sometimes a student will even reference the standard that governs instant replay reviews—“clear and obvious visual evidence” warranting reversal (or as it was termed prior to 2016, “indisputable visual evidence”). We then watch the play in slow motion and discuss whether the call should have been reversed under that standard. This leads into a discussion of why the NFL has selected that standard of review, whether it is the appropriate standard, and how it compares to the standards of review used by appellate courts.

One play that works well for this exercise is the so-called “Instant Replay Game”—Chicago Bears at Green Bay Packers, November 5, 1989:

Packers quarterback Don Majkowski threw an apparent game-winning touchdown pass with less than a minute remaining in the game. The linesman called a penalty on the basis that Majkowski had crossed the line of scrimmage before releasing the ball, making it an illegal forward pass. The Packers challenged the call and the referee reinstated the touchdown after viewing an instant replay, ruling that Majkowski had not crossed the line of scrimmage. (The rule itself was subsequently changed, to define an illegal forward pass based upon the position of the passer’s feet instead of the position of the ball.)

For a more accessible example, consider Philadelphia Eagles at Dallas Cowboys, September 15, 2008:

Eagles wide receiver DeSean Jackson caught a long pass and ran into the end zone, flipping the football behind him to celebrate what appeared to be his first NFL touchdown. The Cowboys challenged the touchdown call, noting that Jackson had already flipped the ball by the time he reached the goal line. The call was reversed, and the Cowboys ultimately won the game by four points. (Jackson’s hasty celebrations date back to his high school days.)

Several controversial calls were made by replacement officials during the NFL referee lockout of 2012, including the “Inaccurate Reception”—Green Bay Packers at Seattle Seahawks, September 24, 2012:

Down by five points with eight seconds remaining, Seahawks quarterback Russell Wilson threw a long pass to receiver Golden Tate in the end zone. Both Tate and Packers safety M.D. Jennings got their hands on the ball. The two replacement officials near the play made contradictory calls and then ruled that the two players had simultaneous possession, resulting in a game-winning touchdown for Seattle. On review, the referee ruled that there was not adequate evidence to overturn the call, so the touchdown stood. (The scope of review was limited by NFL rules; the field officials probably should have called offensive pass interference and voided the touchdown on that basis.) Two days later, the NFL settled with the referees association, ending the lockout.

There are, of course, many other examples that will work. For example, the Dallas Cowboys lost a 2015 playoff game as a result of a reversed call. A collateral attack on that ruling (brought by a prisoner suing the NFL) was dismissed on procedural grounds.

Some may prefer to use examples from other sports. Most use a standard of review similar to that of the NFL.

The exercise gives students an opportunity to practice legal analysis in a familiar (or at least different) context, and is especially helpful in introducing them to what otherwise can be a very dry topic.

I hesitate to use sports analogies in class, knowing that they are likely to put off some students. But I have found that, at least in this instance, doing so tends to engage students and elicit enthusiastic participation from those who do not usually volunteer (especially Packers fans, even in Bears country).

 

[1]See, e.g., Steve P. Calandrillo & Joseph Davison, Standards of Review in Law and Sports: How Instant Replay’s Asymmetric Burdens Subvert Accuracy and Justice, 8 Harv. J. Sports & Ent. L. 1 (2017), http://harvardjsel.com/wp-content/uploads/2017/01/Calandrillo.pdf; Kenneth Kilbert, Instant Replay and Interlocutory Appeals, 69 Baylor L. Rev. 267 (2017), https://ssrn.com/abstract=3008827; Russ VerSteeg & Kimberley Maruncic, Instant Replay: A Contemporary Legal Analysis, 4 Miss. Sports L. Rev. 153 (2015), http://mssportslaw.olemiss.edu/files/2015/09/EIC-VerSteeg-Edit-FINAL-Macro-p.-153-273.pdf; Mitchell N. Berman, Replay, 99 Cal. L. Rev. 1683 (2011), https://doi.org/10.15779/Z38DQ4S; Chad M. Oldfather & Matthew M. Fernholz, Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, 43 Ind. L. Rev. 45 (2009), https://mckinneylaw.iu.edu/ilr/pdf/vol43p45.pdf; Aaron R. Baker, Replaying Appellate Standards of Review: The NFL’s “Indisputable Visual Evidence”: A Deferential Standard of Review, 16 Tex. Ent. & Sports L.J. 14 (2007), http://teslaw.org/wp-content/uploads/bsk-pdf-manager/2017/03/Spring_2007_vol.-16-1.pdf; S. Christopher Szczerban, Tackling Instant Replay: A Proposal to Protect the Competitive Judgments of Sports Officials, 6 Va. Sports & Ent. L.J. 277 (2007), http://heinonline.org/HOL/LandingPage?handle=hein.journals/virspelj6&div=15; Bennett Liebman, Reversing the Refs: An Argument for Limited Review in Horse Racing, 6 Tex. Rev. Ent. & Sports L. 23 (2005), http://heinonline.org/HOL/LandingPage?handle=hein.journals/tresl6&div=4; Jack Achiezer Guggenheim, Blowing the Whistle on the NFL’s New Instant Replay Rule: Indisputable Visual Evidence and a Recommended “Appellate” Model, 24 Vt. L. Rev. 567 (2000), http://heinonline.org/HOL/LandingPage?handle=hein.journals/vlr24&div=22.

Ferrari Has Really Fast Race Cars: A Mnemonic for Doing a Case Analogy in the “A” Section of IRAC

Ferrari Has Really Fast Race Cars: A Mnemonic for Doing a Case Analogy in the “A” Section of IRAC

By Ben L, Fernandez, Legal Skills Professor
University of Florida Levin College of Law

IRAC is an acronym for Issue, Rule, Application and Conclusion.  I imagine every law school in America teaches its students to use some variation of IRAC as the structure for analyzing a legal issue.  And IRAC works fine if the analysis is simple, like this:

Issue
The issue in this case is whether Supermarket Corp. was responsible for maintaining the premises in reasonably safe condition.

Rule
A basic tenet of premises liability in tort law is those who own or control property have a duty to maintain it in safe condition.  Oliveri v. Massachusetts Bay Transp. Authority, 363 Mass. 165, 167 (1973).

Application
Supermarket Corp. was the owner of the property where the accident occurred, and was also in control of the store on the premises.

Conclusion
Therefore Supermarket Corp. was responsible for maintaining the premises in reasonably safe condition.

The problem with IRAC is most legal reasoning is not that simple.  Society doesn’t need lawyers to analyze legal problems that can be deduced from a general rule.  The problems lawyers are most often tasked with analyzing involve analogical reasoning.  We analogize or distinguish fact patterns to determine whether and how the rule applies.  So the “A” in IRAC isn’t usually as simple as applying the rule to the facts.  We need to compare the facts of the fact pattern to the facts of a similar case.  And IRAC doesn’t give the students much guidance on how to structure the application portion of the analysis.

When I teach IRAC as a form for analyzing a legal issue, I tell students to start with the issue and the rule, then apply the rule by giving an example of how the rule was applied in a reported case.  To do the application part of IRAC, start with the facts of the case, describe the holding, and explain the reasoning for the court’s decision.   Then state the fact pattern is analogous, compare the facts to highlight the similarities, apply the rule of the case, and come to a conclusion.  The mnemonic I use to help students remember that structure is “Ferrari Has Really Fast Race Cars,” which stands for Facts, Holding, Reasoning, Facts, Rule and Conclusion.

Here is an example of what an analysis would look like using this formula:

Issue
The issue in this case is whether evidence of dirty brown wax beans and black strawberries on the floor of a supermarket is enough to show the property owner breached the owner’s duty to keep the premises in reasonably safe condition.

Rule
“Where a foreign substance on a floor or stairway causes the business visitor to fall and sustain injuries, he may prove the negligence of the defendant by proof that . . . the foreign substance was present on the defendant’s premises for such a length of time that the defendant should have known about it.”  Oliveri v. Massachusetts Bay Transp. Authority, 363 Mass. 165, 167 (1973).

Application:  Facts (Ferrari)
For example, in Anjou v. Boston Elevated Ry. Co., 208 Mass. 273 (1911) the plaintiff slipped and fell on a banana peel.  According to witness who had examined it, the banana peel “’felt dry, gritty, as if there were dirt upon it,’ as if ‘trampled over a good deal,’ as ‘flattened down, and black in color,’ ‘every bit of it was black, there wasn’t a particle of yellow,’ and as ‘black, flattened out and gritty.’” Id. 

Application:  Holding (Has)
Based on that evidence, the court held that “[t]he inference might have been drawn from the appearance and condition of the banana peel that it had been upon the platform a considerable period of time, in such position that it would have been seen and removed by the employees of the defendant if they had been reasonably careful in performing their duty.” Id.

Application:  Reasoning (Really)
A banana peel is perishable.  It decays over time and turns black.  Therefore, if a banana peel looks black and gritty, it is reasonable to infer it’s been sitting for a while.

Application:  Facts (Fast)
This case is analogous.  The customers in both cases slipped and fell on perishable substances.  Wax beans and strawberries, like bananas, are perishable.  After the passage of time, beans turn brown and strawberries turn black, just like bananas turn black when they decay.

Application:  Rule (Race)
For the same reason it is reasonable to infer a black banana peel has been on the floor for a substantial length of time, it is also reasonable to infer dirty brown beans and black strawberries have been on the floor for a long time.

Application / Conclusion (Cars)
Based on the evidence, the store owner in this case should have known of unsafe condition and either cleaned it up or warned customers of its existence.  By failing to do either, the owner breached the duty of reasonable care.

Conclusion
Evidence of dirty brown wax beans and black strawberries on the floor of a supermarket is enough to show the property owner breached the owner’s duty to keep the premises in reasonably safe condition.

Ferrari Has Really Fast Race Cars.  To apply a rule by making an analogy, start with the Facts of an analogous case, and the case citation.  Then state what the court Held, and explain the court’s Reasoning.  Insert a paragraph break and state the fact pattern is analogous.  Then compare the Facts of the fact pattern to the facts of the case.  Apply the Rule to the fact pattern the same way the court applied it in the case.  And come to a Conclusion.

 

Review: The Science of Equality, Vols I & II

Review: The Science of Equality, Vols I & II

By Tonya Kowalski, Washburn University School of Law

Rachel D. Godsil, et al., The Science of Equality, Vols I & II

Attendees at this past summer’s biennial ALWD conference had the great fortune to learn about the latest research on addressing diversity-related challenges. Among the featured speakers was law professor Rachel Godsil, who identified very specific strategies for addressing bias in education, particularly implicit racial bias and related phenomena.

Prof. Godsil and her colleagues at The Perception Institute have published a series of highly readable, persuasive, and practical reports on these pernicious barriers to education. Among these reports are two volumes of The Science of Equality, linked below. Each report synthesizes and assesses the research, but also describes a series of empirically supported strategies for intervention.  For example, Volume 2 offers a simple, low-cost strategy for educators to use when providing written feedback. The “wise feedback” approach couples messages about high expectations with expressions of confidence in students’ ability to meet those expectations. Studies show that such messages vastly improved response rates and quality from students in a particular marginalized group.

The topics and strategies range from institutional to individual. Readers will find an array of proposals suitable for both classroom professors and administrators.

Notes and Links:

  • The Science of Equality in Education: The Impact of Implicit Bias, Racial Anxiety, and Stereotype Threat on Student Outcomes
  • The Science of Equality Vol. 2: The Effects of Gender Roles, Implicit Bias, and Stereotype Threat on the Lives of Women and Girls
  • Additional publications
  • ALWD is the Association of Legal Writing Directors
  • This post’s author is currently an ALWD board member but has no personal stake in The Perception Institute.
Escape the classroom: how to bring class simulations to life

Escape the classroom: how to bring class simulations to life

By Carman A. Leone, Maj, USAF[1]
Assistant Professor of Law

In the spring semester of 2017—sitting in a fluorescently lit, sterile classroom—I watched a pair of my students awkwardly negotiate in the front of the classroom with my colleague who was playing the role of an Afghan police chief.  The simulation was a roleplay assessment offered as part of the United States Air Force Academy’s negotiation course.  The students were playing the role of two junior Air Force second lieutenants who needed to negotiate security protocol with the police chief in his Afghanistan-based office.  The students mechanically applied a few of the negotiation skills I taught them during the course.  One of the students smirked at something my colleague said while in character, seemingly scoffing at the ridiculousness of the simulation.

This irritated me.  I wanted the students to take the simulation seriously and chalked up their lack of enthusiasm as their problem, not mine as the professor.

Shortly after, I realized it was my problem.  After the simulation, but before fall 2017 semester started, I participated in an “escape the room” game.  The premise of escape the room game is to solve a series of riddles and puzzles using clues embedded in a thematic setting.  Although the building which housed the game was in a nondescript industrial park, my particular game was set in a mountain hunter’s cabin, complete with trophy mounts, wood paneling, a worn bookcase, pad-locked drawers inset within a desk, and a trap-door-backed fireplace.  As I crossed the threshold from the office waiting room into the “game room,” I was transported.  Dozens of details in the room were clues that lent to a piece of a bigger puzzle.  For example, by reading backwards a riddle inside a tattered book on the inconspicuous bookshelf in the corner of the room, I realized I needed to count the number of “points” on the trophy mounts hanging on the wall, which then provided the numerical combination necessary to open a pad-locked drawer of a desk in the room.  The contents of the drawer provided another clue for the next puzzle.  For sixty minutes I felt as though I was truly locked in a hunter’s cabin, largely due to the thoughtful details which made the game authentic.

Before conducting the Afghan simulation again the following semester, I decided to transform my classroom into the Afghan police chief’s office, using the inspiration from my experience in the escape the room.  First, I placed two free-standing floor lamps in the room to provide low, warm lighting to replace the fluorescent lamps that previously shined overhead.  I moved a light-weight bookshelf next to a freestanding, dark-stained table which served as a desk.  I stocked both with a few books and mementos typical of a real office.  A framed picture of my family sat on the desk next to a collection of dry erase markers which the best students would ultimately use to brainstorm potential options on the flipchart resting on an easel just feet away from where they sat.  A framed, ornate dagger was placed on the edge of the desk for intrigue and intimidation purposes.  A side table, set with a water pitcher and four matching glasses, sat inconspicuously next to the desk.  Behind the desk, a “to-do” list was written on the large whiteboard, serving as clues to the interests of the police chief, about which the wisest of student would inquire.  There were dozens of planted details and clues that students could have used to help unlock success in the simulation.

Remarkably, very few students used the clues that were within fingers’ reach of where they sat.  The students who performed the best identified the planted clues and used them effectively.  For example, students who noticed the framed picture on the desk and asked whether the Afghan police chief was a father or husband, created a terrific opportunity for rapport building.  Even better, those students who asked about to the “to-do” list written on the whiteboard behind the desk unlocked a number of interests of the police chief that were not otherwise apparent.  One of the best pairs of students asked the Afghan police chief to sit at the side table where they all would be more comfortable, eliminating the power dynamic by removing the police chief from behind his desk.

In a debrief following the exercise, students noted just how unique the experience was.  Many reported feeling nervous and unsure of themselves when they walked into what they described as “the dim lair of the Afghan police chief.”  Some claimed to have recognized the planted details, but many admitted they did not know what to do with them.  Some recounted the adrenaline they felt walking into the room, as if they were stepping onto the sports field ready to compete.  Others described crumbling under the weight of nervousness and uncertainty.  All agreed the experience was unique and realistic.

A few students offered ways to even further improve on the experience.  For example, one student suggested playing authentic Afghani music at the beginning of the exercise while students walk into the office to begin the simulation.  Another student offered the idea of lighting incense in the room to add to the authentic experience.

Ultimately, I offer this advice to educators concerned with the lack of enthusiasm in roleplay scenarios:  if you want your students to submerse themselves into your simulation, make it irresistibly authentic.  Not only will it improve the level of engagement, but it will provide a unique opportunity students may not experience until they graduate.

 

[1] The views expressed herein are those of the author and do not necessarily reflect the official policy or position of the United States Air Force Academy, the U.S. Air Force, the Department of Defense or the U.S. Government.

Should I Teach To The A Or The C Student…

Should I Teach To The A Or The C Student…

Should I Teach To The A Or The C Student And Can Active Learning Render This Question Moot

By Rory D. Bahadur, Washburn University School of Law

Your law class has 60 students.  Within 2 weeks of class you realize that some are weaker than others as you get a sense of the responses to class questions and the responses of small formative assessments.

20 minutes into one class some students understand the black letter concepts quickly and are ready to move on to more nuanced and sophisticated examinations of the doctrine.  Others have trouble grasping simpler even elemental concepts.  What is the appropriate teaching decision at this point?  Should you revisit the doctrine to try to get every student on board or should you teach to keep adding complexity and information to avoid boring some students with repetition of concepts these students already understand?

This continues to be a challenge to many professors and I guess in a very unscientific manner my solution was to consider myself having done it right if on my student evaluations “a few” students said that I went too quickly.  That way I felt only a few complained and the pace was therefore not too slow for the majority/middle.

More recently I have taken to doing the traditional teaching at a pace that suits the students who are getting the material the fastest.  This takes about 1/2 the classroom time that I would need if I was doing the same presentation for the majority/middle.  At this point some students look at me and are woozy from information overload.

At this point in the lecture I divide the class into groups of 3-5 students. These groups are different each time and are randomly created and consist of students all along the spectrum of doctrinal understanding.

I then handout a series of short problems based on the material we just covered way too quickly for most students to feel comfortable.  The first problem is very basic but each becomes slightly more complicated.  Each group assembles in a particular region of the classroom and each group is required to do each problem.

For example after teaching the basics of assault and battery in torts I distribute the following problem set to the groups.

Problem Set

I ask each group to type up the perfect answer to each problem.  After each problem in italics are the substantive concepts I hope the particular problem invokes.

After about 15 minutes of group work we begin to discuss the hypotheticals.  As a group the students respond to the questions and one student from each group reads the typed up group answer.  When they are done I ask if any groups disagree and why with the explaining group’s conclusions and reasoning.  I do this for each question and I simply moderate the discussion without leading it.

The following pedagogical concepts are engaged in the process:

  1. Collaborative work as they are chatting and collaborating about the doctrine to come up with the answers
  2. Experiential work as they are problem solving
  3. Students take the role of teacher. People who understand concepts and come to the answer quickly are questioned by those who did not within the group.  This explanation or verbalization of concepts to explain to others requires an understanding of the material.  And as all of you reading this know if you want to learn a subject then try teaching it.  Remember the first time you taught any class how much learning occurred.  LoL
  4. Active learning, students are engaged in learning activities that they do at their own pace and they develop their own contexts for understanding the doctrine not those of the perceived “uncool, geriatric lecturer” in the room.
  5. The groups are less formally hierarchical and lower pressure than the typical law school classroom

Basically this active portion of the class renders the “to whom do I teach,” question irrelevant because the students who got it are learning it even more thoroughly by having to explain it and the students who did not get it when I taught it have the opportunity of another method of delivery of the concepts.

The hardest part about this for us ego driven professors is realizing that after my initial teaching of the concept those students who don’t understand it from me may never understand it from me so why get in the way of their learning and waste class time by stagnating the learning and braying about the doctrine repeatedly.

Forget Waldo – Where’s IRAC?

Forget Waldo – Where’s IRAC?

By Alice Burke, The John Marshall Law School

Students new to law school are bombarded with new concepts and sometimes, their accompanying acronyms.  None of those acronyms seems to strike quite the same terror as IRAC.  For some students, the concept of IRAC is as elusive as Waldo.  The fact is, it doesn’t have to be.   If students simply know where (and how) to look, IRAC can materialize before their very eyes.

IRAC is not all that new to legal writing.  Many law schools were teaching students to organize their analyses using IRAC thirty years ago.  Many of those students can now be found sitting on federal and state benches across the country.    And guess what?  They’re still using IRAC to organize their legal writing.  And guess what else?  Their judicial writing is readily available to students everywhere in reporters, on electronic databases, and on court websites.

Students who want to see what IRAC looks like need go no farther than the nearest court decision.  If it originated within the last twenty years, chances are they will see an example of one of IRAC’s many permutations in action.  As a Writing Specialist helping students adapt their existing skills to the new dialect that is legal writing, I use many different approaches to help students understand how to incorporate IRAC into their papers.  And as you would expect, we spend many advisory sessions looking at student papers.  What you might not expect, however, is that some of my most fruitful advisory sessions have been spent looking closely not at the students’ papers but at the court cases that they are using to support their analysis.

When IRAC remains elusive to students, I invite them to take out one of their controlling cases, and we use that decision to “discover” IRAC.  Together, we find where the discussion begins, and identify the global rule statement.  We notice whether the court breaks the global rule into discrete elements, or explains away parts of the rule that for one reason or another are not relevant to the issue before it.  Then we move through the opinion to the first issue before the court.  We note how the court identifies the discrete issue, and segues from there into the governing rules of law.  We observe how the writer has narrowed the focus to a single part of the overall issue, and witness how case citations are woven into the paragraph.  We notice whether the decision uses multiple paragraphs to discuss the applicable rules and how the court uses the facts of precedent cases to illustrate how the rule works.

Then, we note where the “rule” portion of the discussion gives way to “application.”  We pay attention to transition words like “Here,” or “In this case,” that signal this shift, and then note how suddenly we start seeing far fewer italics (indicating decided cases) and far more proper nouns (indicating the parties in the case before the court).  We study how the court compares and contrasts the case to previously cited cases before reaching a conclusion on the issue.

If we are lucky, the decision then goes on to consider another element or factor.  We can look at how the opinion transitions from one to another and then I ask the student to tell me where the opinion identifies the next issue, outlines the governing rules, applies those rules to the facts before the court, and arrives at a conclusion.   Frequently, this provides the breakthrough the student needs to understand how IRAC works (and to convince them that it’s not some crazy thing their professor came up with but that nobody actually uses) and to use it to structure their own analysis. I encourage students to be alert to the presence of IRAC in the many cases they read for their legal writing classes as well as in their doctrinal classes so that they can begin to see its many subtle variations. Short of putting a distinctive red and white striped shirt on it, it is the best way I have found to help students find IRAC.

 

 

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