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Teaching Students to Think While Moving their Feet

Teaching Students to Think While Moving their Feet

By Sandra Simpson, Gonzaga University School of Law

With the weather warming up and the sun making its return to the Pacific Northwest, students are wanting to be outside and wanting the semester to end. It is at this point in the spring semester when I am searching for something to keep my students learning and engaged. A teaching method I have employed with much success is called “four corners.” This method works best in doctrinal classes when you are planning to discuss a preeminent case. This is how it works.

Preparation: Read and understand the arguments put forth to the court by both sides of the case, including amicus briefs. Decide which four “arguments” or “points” you will use for your “four corners.”

Class: I hang signs with the four “points” or “arguments” on them in the four corners of the room before the students come in. Once the students are in the room, I have them go to the corner of the room with the “point” or “argument” with which they most closely align. Once the students move, I have a list of questions for the group to discuss. The professor can choose any question for discussion. I typically ask the groups these types of questions: Why do you align with this point? What support from the case (or article or brief) can you use to bolster your opinion? What are the policy concerns/benefits of this point? Would any change in law or fact cause you to change your opinion? If so, what? I then have the groups report their answers.

Debrief: After the students return to their seats, I lead a discussion about the many sides that exist in most cases. We discuss ways to see the other sides and why it might be important for a lawyer to see all of the policy concerns and the factual concerns.

This method can be used for many different purposes such as ethical issues, legal writing problem deconstruction, and seminar topics. It is a way to get the students out of a seated position, get them to talk to each other, and get them to look deeper into cases and issues.

Review: Law Teaching for the Conceptual Age

Review: Law Teaching for the Conceptual Age

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

Paula Franzese, Law Teaching for the Conceptual Age, 44 Seton Hall Law Review 968 (2014) [Read fulltext at Seton Hall Law Review website (10.9 MB PDF)]

Amidst the continued criticisms lodged against the state of today’s legal education, Professor Paula Franzese’s recent article, “Law Teaching for the Conceptual Age,” agrees with many other similar critiques on the subject that something has to give. Yet, instead of reassessing the business model of law schools or suggesting another re-tool of the law school curriculum toward a more practice-oriented vein, Franzese recommends a solution from a teaching perspective by asking how law teachers can enhance traditional law teaching pedagogy to better engage and serve our students who have generationally shifted toward a life in what she calls “the Conceptual Age.”

The reflection of current law school student demographics is Millennial, and what Franzese suggests is that the Socratic teaching model, which promotes linear, analytical, “left-brain” thinking, needs to become more receptive to teaching conceptual, “right-brain” modes of thinking that are coincidentally in sync with characteristics of the Millennial generation. She makes this suggestion not necessarily with the purpose of pandering to Millennial law students but to demonstrate how it would bring balance to the process of today’s legal problem-solving. As she claims, since the mid to latter 20th century, the “globalization, outsourcing, technological achievement rendering obsolete entire categories of work, and sharp economic downturns are demonstrating the limits of the narrowly linear. In its place, the last two decades have witnessed the ascendance of the inventive, big-picture, ‘high concept’ aptitudes.” What’s missing in traditional law classroom pedagogy are opportunities for our students to learn the practice of law by developing conceptualized thinking about legal situations that ultimately lead them toward finding empathy and meaning in the law–in other words “right-brain thinking.” According to Franzese, “[r]ight-brain thinking involves the non-sequential cognitions that are able to interpret things simultaneously, appreciate context, and put isolated elements together to perceive the bigger picture.” Rather, the Case Method is heavily concentrated in training students to develop analytical skills premised on applying principles and case precedent to relevant facts and being able to spot and categorize legal conclusions from analogous set of facts to the next. “So much of what we do there exalts the deductive, the sequential, the logical, and the linear, all worthy parts of the picture, but not the whole picture,” Franzese writes. But when do we have a chance to ask our students about the conceptual questions within the law and develop the types of skills and intuition that might allow our students to innovate and think outside the box when it comes time for them to problem-solve creatively on a legal matter?

What Franzese proposes is teaching that is neither premised on solely left- or right-brain thinking, but instead on what she calls “whole-mind thinking.” She’s attempting to strike a balance. A good legal thinker ought to be able to think analytically and logically about the law but then be able to conceptualize the law within situations that are affected by social, political, and economic forces. In order to successfully achieve the goals of this whole-mind teaching and learning, Franzese offers some tools for teachers and students to do just that. In a prominent example, she shows how she teaches the landlord/tenant unit in her Property course by setting aside class lecture time to bring in a fictitious couple played by upper-class students and setting them in a hypothetical in which the couple is having trouble with the apartment they have just rented. Students are asked to try to use what they have learned from prior cases and discussion to help problem-solve what they think is a real-life problem. The trick here is that Franzese does not reveal that the couple is merely fictitious and that the whole interaction is part of a simulation until the very end of the exercise. The “realness” of it seems to create a great level of class-engagement and urgency for creative problem-solving, as well as help build empathy in the students for their “clients.” Once Franzese has revealed that the interaction is a simulation, it affords her the opportunity to de-brief with her students the teaching and learning approaches that the exercise poses. Specifically, “[l]etting our students know why we chose a particular teaching tool, why it works and how they can create comparable opportunities to enhance their own learning processes develops their metacognitions, or awareness of their actual process of learning itself.” Students are then more self-aware of how they learn through context and can more directly think about how to think both analytically and creatively about the law in the face of future legal problems.

Another teaching example that Franzese uses to get students to approach the law more “whole-mindedly” is in an exercise she calls “You Be the Teacher,” where “students are asked to assume the professorial role to teach the material, preparing for a part of the class as if they were the professor.” Her specific directive in this exercise is that students “are required in advance of class to think about the essential teaching points and meaning (both textually and sub textually) of the assigned cases, statutes, and problem-sets, and how they relate back to previous class explorations and can help to inform our future scope of coverage.” In running this exercise in her classroom, Franzese has observed that “[s]tudents are charged with thinking about how best to render difficult material both accessible and understandable, how to put the assigned materials into larger context, and how to help the class discern why the topic at hand matters.” In other words, the exercise gets students to develop both analytical skills and also conceptual thinking stills about the subject matter that they are assigned to present. Interestingly, she notes that this exercise’s success is partially premised in how it creates empathy: “A good part of the students’ new found acumen is attributable to their empathic experience of being a law professor.”

Franzese’s article contains many other teaching examples used in other law courses that can be helpful for the instructor who wants to get students to think not just analytically but also capture a significant intuition about the law. Ultimately, she professes that teaching is a moral craft and within the law classroom there is a responsibility to our students to create opportunities that reflect a genuine experience in the law. In the age of outcomes and assessments in legal education, what her article helps answer–at least in part for me–is a question about how to make our teaching relevant for our students so they will embody the values and proficiencies that will make them not just effective practitioners of the law but also empathetic and creative innovators that will push the law forward.

Pop Quizzes

Pop Quizzes

February 2016 Idea

By Barbara Lentz, Wake Forest University School of Law

By Valentine’s Day, we are about one-third of the way through the semester, so it is time to test students on early material they may have forgotten and interweave the practice of a skill or a more recent topic. I administer a short quiz at the beginning of class (aka pop quiz or “an opportunity to assess one’s learning without pre-testing anxiety”). In my classes, there is minimal grousing when the pop quiz appears because my students know that they will have an opportunity to retake the quiz, as part of a group, at the end of class and have their grade determined by an average of the two scores.

Studies show the benefits of frequent, low-stakes testing. The best learning happens when testing is regularly spaced into classes over the term.(1) Regular tests promote learning and improve long-term retention.(2) Testing improves learning independent of additional study time.(3) Appropriate testing promotes learning by forcing students to recall and apply knowledge acquired from lectures, reading, discussion and simulations; practicing retrieval over the term (not just cramming for a final exam) makes learning stronger and makes studying for the final more effective and efficient because much less is forgotten along the way.(4)

Now, it is possible that your students may not see testing as the beneficial bridge to durable learning that it is. However, with the opportunity to retake the quiz after class, you likely will enjoy a thoroughly engaged class of attentive students seeking knowledge needed to pass the re-take. At the end of class, I require students to retake the same or substantially similar quiz in a group. High performers do not fear freeloading, as they have locked in a good (but not perfect) grade by performing well on the initial, individual quiz. Group work and discussion develops collaborative skills and leads to more precise, accurate, exact and (if you limit the time and space) concise answers. Group retakes also generate far fewer quizzes to grade while providing immediate formative feedback (and answers) to students who may assess their own learning and study skills months before the final.

Nearly every retake scores 100%, meaning the students have retrieved and demonstrated understanding of the knowledge deemed most crucial by the professor, and also meaning that no class time is needed to further review answers. Yet if you must grade on a curve, averaging the initial and retake grades can create a range of scores while still resulting in all students mastering the material. I have also seen a spillover effect in regular, close reading by more students and student-initiated study groups forming to discuss and distill answers to questions posed in class (which questions are likely candidates for future pop quizzes).

(1) Roediger, H.L., How Tests Make Us Smarter, in New York Times, p. SR12, July 20, 2014.
(2) McDermott, K.B., Kang, S. & Roediger, H.L., Test Format and Its Modulation of the Testing Effect, European J. of Cognitive Psychology, Vol. 19, 528-558 (2007).
(3) Cull, W.L. Untangling the Benefits of Multiple Study Opportunities and Repeated Testing for Cued Recall, Aplied Cognitive Psychology, Vol. 14, 215-35 (2000).
(4) See Roediger, How Tests Make Us Smarter, supra.

Review: Law School Culture and the Lost Art of Collaboration

Review: Law School Culture and the Lost Art of Collaboration

By Andrea Boyack, Washburn University School of Law

Michael I. Meyerson, Law School Culture and the Lost Art of Collaboration: Why Don’t Law Professors Play Well With Others?, 93 Nebraska Law Review 547 (2015) [Read fulltext at Nebraska Law Review website]

Successful lawyers work together. Collaboration is extremely valuable to clients, firms, and the legal profession. Collaboration enriches the development of legal thought. Collaboration is key to lawyering effectiveness in the real world. And yet, law students receive virtually no training in how to work in a group, nor are they given meaningful opportunities to develop the collaborative skills that are so critical for their development and their practice after graduation.

Legal education fails to prepare students for legal collaborative reality. Perhaps this is because law schools judge and reward students based almost exclusively on individual effort and solitary performance in class and on tests. Although some professors have innovated by creating in-class opportunities for group work, law schools make vastly less use of teams than medical and business schools. Other professional schools place value on building collaborative intelligence, based on the reality that working effectively in a group is essential to professional success. But law schools have not incorporated this reality into their model.

Legal education’s collaboration deficit is not new news. For example, the ABA’s 1992 MacCrate Report noted that “effective collaboration with others” was a critical skill that has not been adequately addressed in law school. Harvard Law Professor Heidi K. Gardner has researched and recently published (in the book, Leadership for Lawyers: Essential Leadership Strategies for Law Firm Success) on the value of collaboration in legal practice. And it is widely recognized that law students graduate without much explicit training in art of teamwork. It is not just the schools that create collaborative deficiencies, however. Law professors themselves are poor collaborative role models. In his recent article in the Nebraska Law Review, Michael Meyerson highlights another source of collaborative deficiencies in legal education, namely, the lack of collaborative pedagogy and scholarship among law professors.

After making the transition to teaching law after nearly 15 years of practice, I immediately noticed – and have ever since struggled with – the sheer loneliness of a law professor’s work. Meyerson concedes that for most law professors “both teaching and scholarship are seen as solitary activities.” But is completely solitary teaching and writing necessary or justifiable? Meyerson’s article posits that such solitude weakens legal pedagogy and impoverishes legal scholarship. And although it is the norm in the law, it is most decidedly not the reality of many non-legal academics. In several non-law academic fields (mathematics, economics, etc.) 80% or more of scholarly articles have more than one author. Even though the number of co-written law review articles has almost doubled in the last decade, still less than 20% of law review articles are co-written. A lower rate of collaboration reflects the legal academic culture that devalues co-written scholarship (for example, co-written articles may receive only token credit towards tenure requirements). Co-teaching within a law faculty is likewise rare, and professors rarely collaborate regarding pedagogy or coordinated course plans. The criticized “law school culture of individualism” therefore starts at the top – with the faculty. And law professors are unlikely to be effective in teaching others to collaborate when they themselves cannot “play well with others.”

Meyerson advocates for a change – not just with respect to teaching students tocollaborate, but also with respect to professors themselves teaching and writing morecollaboratively. Meyerson concedes that this change may be difficult and requires that faculties learn the value of collaboration not only for students, but for professors themselves. But Meyerson explains how valuable collaboration among professors can be. For example, co-authorship can allow for efficient division of labor and can lead to richer, more vetted, and multi-faceted perspectives on and proposed solutions to a legal problem. Meyerson points out that collaboration can create social and psychological benefits as well. Co-authorship can provide motivation and encouragement and create a “sort of synergy where multiple contributors develop ideas that none would have developed on his or her own.” Building bridges between our academic silos can thus lead to a whole that is greater than the proverbial sum of its parts. In addition, working closely with other people can help legal scholars stay grounded and humble. Collaboration is also a way to mentor and give voice to new entrants into the legal academy.

There is a further societal benefit as well: as professors themselves become better collaborators, they can better mentor law students in their pursuit of collaborative intelligence. Collaboration can enrich law school in terms of the quality of and enthusiasm for legal learning. It also better prepares students to practice in the real world. Collaborative learning involves higher-level cognitive and moral reasoning, teaches listening and cooperation skills, and raises cultural and diversity awareness.

Meyerson’s intriguing article is based on his studies of collaborative scholarship and his exhaustive research with respect to the value and absence of collaboration in the law school model. He offers interesting insights with respect to collaboration in other legal fields. The article educates regarding the value of collaboration and includes thoughtful advice on how to incorporate teamwork into the classroom as well as how to incorporate collaboration into our pedagogical and scholarly lives. Importantly, Meyerson also explains that collaboration does not negate individualism. Rather, collaboration can be “a vital part of the process whereby an individual can achieve more of his or her unique potential.”

Review: Beyond Mentoring and Advising: Toward Understanding the Role of Faculty “developers” in Student Success

Review: Beyond Mentoring and Advising: Toward Understanding the Role of Faculty “developers” in Student Success

Submitted by Barbara Lentz
Wake Forest University School of Law

Vicki Baker and Kimberly Griffin, Beyond Mentoring and Advising: Toward Understanding the Role of Faculty “developers” in Student Success, 14:6 About Campus 2 (Jan-Feb 2010) [Read full text at Selected Works site for Griffin]

With ABA standards for outcomes and assessments coupled with demands for practice-ready lawyers, law faculty are needed more than ever to identify and create opportunities for our students to develop critical thinking, skills, and networks to succeed. Authors Baker and Griffin provide a framework for three types of faculty roles: advising, mentoring and developing students. Acknowledging the lack of incentives for engaging in student development when the research agenda is prioritized, the authors provide a vocabulary, clear framework and concise suggestions to encourage faculty to align their time, interests and abilities in choosing the type of interactions most likely to confer greater benefits with fewer frustrations.

The essay begins by reviewing demographic shifts of student enrollment in higher education including increasing diversity, shift to parity or majority female enrollment, rise in first generation students as well as fiscal changes that have led students “to expect a level of service that matches their investment” including lightening fast responses to questions and requests for academic and social support. At the same time, faculty members’ workplaces may be less encouraging of interaction with students by privileging “research productivity over student interaction” in addition to demands for responses from accrediting agencies. Pressures on faculty arise both in and outside the classroom to meet student expectations for faculty contact. The authors urge faculty to be realistic about their strengths, weaknesses and time commitments to foster appropriate relationships for student development and learning.

The three roles for faculty interaction include the advisor, the mentor, and a new role – the developer. The authors distinguish these three roles by the time invested and the outcome desired. First, the traditional faculty advisor helps students navigate rules and degree requirements by providing reliable information so students can make good choices in meeting program milestones. Students should not expect that every academic advisor will also serve as a mentor. Mentoring is more time intensive than advising as it requires a series of ongoing interactions rooted in longer-term care about a student’s personal and professional development. A mentor provides support beyond program requirements by offering honest feedback as a sounding board, helping the mentee connect interests with a career and focusing mostly in the moment. The developer, by contrast, is focused on future outcomes and helps a student set and achieve goals. The developer might ask the student “what experiences do we need to find or create to help you build competencies you will need in order to be successful?” A developer relationship is collaborative in knowledge development and information sharing.

Developer relationships are enduring and do not end once a project or degree program is complete.

No one individual possesses the skills and abilities to be all things to all people. Yet all three relationships are important for achieving student outcomes. The authors assert that students must appreciate the kind of support available from each type of relationship to maximize benefits. If students are better informed about roles, they can be intentional about seeking appropriate expertise by identifying individuals who may best support the student’s short, mid and longer-term development. The authors suggest students reflect on questions provided to diversify their developmental networks while gaining interpersonal and networking skills.

The vocabulary and frame provided by authors Baker and Griffin is valuable in re-conceptualizing faculty roles for student interaction and engagement and provides a toolkit for intentionally choosing the type of role that best meets faculty and student needs, interests and abilities.

Mentoring 1L Work Habits: Weekly Goals

Mentoring 1L Work Habits: Weekly Goals

January 2016 Idea

By Tonya Kowalski, Washburn University School of Law

Today’s law students have more information about study habits than ever before. They have access to a great array of books on law student success, and most law schools provide some exam and study training through academic support. Yet even for diligent students, transferring that general advice into each new course remains a challenge. Legal educators can help to train students in good work habits by incorporating weekly goals in the syllabus, and by occasionally discussing them in class. Weekly goals work well not only in skills classes with large assignments, but also in traditional, exam-only courses.

First, in courses with projects or papers, students are hungry for information about how best to get started, how to identify material from class that is relevant to the project, and even how past training, such as previous legal writing instruction, can be adapted to the assignment. For example, in my legal writing course, we’ve just started work on a new appellate brief problem, but the case file is voluminous and will take weeks to digest. Some students had already assumed that they should not try to begin researching or writing until they fully understood the entire file. In the assignment calendar and in class, we spent a few moments discussing strategies for immediately researching and writing about the general rules for the claim involved. Most days, we don’t have time to discuss these goals in class, but they are there in writing from the very beginning of the semester. For example, this week’s goals were written in the syllabus as follows:

  1. Familiarize yourself with the legal rules for Issue I by reading secondary sources. While you are reading, open a document folder and start lightly drafting a rule synthesis. Include rough citations with pinpoints.
  2. Buy a binder and use it to begin your litigation folder (research, notes, and pertinent parts of the case file).

Second, for those courses that do not involve papers or projects, students can benefit from weekly advice in the syllabus on outlining and other exam preparation. For example, students often do not understand how classroom hypotheticals relate to exam preparation. A tip on the weekly course schedule can encourage students to incorporate classroom hypos into their outlines and to use them to write mock exam questions. In another example, students often do not immediately notice that the cases in the book are selected to present a spectrum of viewpoints on each topic. A weekly hint and could suggest that students draw a spectrum and place all the cases along a spectrum of legal outcomes or approaches.

Greater transparency about course design and study skills can help students to avoid the trial-and-error method of learning how to become better students. One simple way to do so is to create weekly goals or provide weekly study tips on a document students must read every week: the course’s calendar of readings and assignments. This type of coaching is not “spoon-feeding”; instead, it cues opportunities to make connections and engage more deeply with the material.

Review: White Privilege and the Case-Dialogue Method

Review: White Privilege and the Case-Dialogue Method

Submitted by Rory Bahadur
Washburn University School of Law

Rob Trousdale, White Privilege and the Case-Dialogue Method, 1 William Mitchell Law Raza Journal 29 (2010) [Read fulltext at William Mitchell Law Raza Journal website]

Trousdale’s rather brief piece is thought provoking and controversial and its central thesis is, “the dominant legal pedagogy, the case-dialogue method, perpetuates white privilege through active subordination of minority law students.”

Initially, the case-dialogue method is couched as a Langdellian invention to save law schools from ceasing to exist as academic institutions. Its genesis was necessary because law was not regarded as an academic discipline but rather as a craft in the 19th century. As a result legal education consisted in large part of apprenticeships and the academic institution of the law school was threatened.

According to the author, Langdell, by contrast, considered the study of law a science. He reasoned that there were objective principles which could be discerned that governed legal decision on a broad level. He considered appellate level decisions as authoritative pronouncements of these objective discernable principles. Hence this iteration of law as science facilitated scholarly thought about the law and the validity and necessity of the law school as an academic institution was realized.

By the early 20th century this Langdellian law-as-science viewpoint was the dominant viewpoint in legal education. It remains this way today. There were challenges to Langdell’s viewpoint, most notably by the legal realists in the 1920s. The realists suggested, “legal rules and principles meant little if they were not analyzed within a broader social context.” Langdell’s approach did not consider anything outside of the actual court opinions however.

The author next addresses some of the false presumptions of the case-dialogue method and he begins this section with a wonderful quote from Michael Cooper, “There is a real danger that inculcation into a legal culture – learning the rules of the game – can divert the initiates into a love of legal reasoning for its own sake. Seduced by the search for elegance and coherence and obsessed with technique, they lose sight of the ends and purposes which the law is intended to serve.”

The author identifies the major deficiency of the case-dialogue method as its failure to recognize the law as a human science rather than a natural science. Most scholars have already acknowledged that the law is sociological or “a construction of society’s cultural values.” Yet the case method perpetuates the notion that the cases contain valid and objective normative principles.

Summarily, the author suggests that these principles perpetuate white privilege because Langdell assumed the objectivity and existence of these principles “at a time, when nearly all lawmakers, legal educators, and law students were white.” Furthermore, the author explains, “far from interrogating [the white privilege-based assumptions in the law] the case method reaffirmed them and the law was analyzed form the perspective of the absolute validity of these principles announced in court decisions.”

The author then quotes Kimberle Creshaw as follows:

While it seems relatively straightforward that objects, issues, and other phenomena are interpreted from the vantage point of the observer, many law classes are conducted as though it is possible to create, weigh, and evaluate rules and arguments in ways that neither reflect nor privilege any particular perspective or world view. Thus, law school discourse proceeds with the expectation that students will learn to perform the standard mode of legal reasoning and embrace its presumption of perspectivelessness.

This unfortunately leaves minority students in the unenviable position of suppressing their different perspective so the law can be discussed objectively or “accepting and asserting their identity and risking being ostracized for failure to think like a lawyer.” Ultimately then, the objective rules and principles we seek to discern from cases scientifically and objectively via the case method affirm the normativity of white privilege even if this is as unconscious affirmation.

The author concludes by suggesting a different conceptualization of the purpose and structure of law teaching and to do so he quotes John Calmore as follows:

Our primary goal [should be] to enable students to read law critically with a special sensitivity to the ways in which legal techniques, rhetorical strategies, and legal practices reproduce patterns of power and privilege that work to subordinate people based on categories of identity. The materials [should be] designed to reveal these strategies through close readings of the language and underlying assumptions in judicial opinions. Students [should be] encouraged to examine legal opinions for their similarities and differences in approaches to power and privilege across identity categories and to compare them with insights garnered from the wide range of multidisciplinary scholarly excerpts surrounding the case texts.

Getting Over the Habit of Last Minute Paper Writing

Getting Over the Habit of Last Minute Paper Writing

December 2015

By Heidi Holland from Gonzaga University School of Law

For anyone who teaches a paper course or legal writing, you know the frustration of having to wade through poorly organized analysis and grammatical wastelands. As I have talked to students, I have found that they often do not know the difference between proofreading and editing, rely too heavily on Spellcheck and do not allow themselves enough time to effectively finalize their assignments. While I have yet to find the perfect solution, I have implemented several strategies to help students learn these skills.

First, our students may come to us with the bad habit of doing college papers the night before they were due. To encourage students to develop better habits, I have staggered deadlines for my final legal writing assignment. For example, this semester, I required students to have a research assignment done for our final assignment a week after I handed out the final topic – a month before the final memo was due. After the students’ initial panic wore off, I explained that I wanted them to start their research early so that I could steer them back the right direction if they were having trouble, and if they got in there and started reading cases sooner, rather than later, we’d have better in-class discussions.

The students’ outlines were then due ten days later. I explained that I wanted bullet point style outlines following IRAC for each issue. We talked about how this would help them, among other things, discover where the “holes” were in their analysis, e.g. having several cases to support their discussion of one issue, but only one case on another issue. In class, we talked through organization of the law and analysis and the students asked good questions – the kind that showed they had been appropriately struggling with concepts. My final deadline was to have a full rough draft about a week before the final paper was due.

Students were required to bring a hard copy of their rough drafts with them to class – along with highlighters. First, I explain the difference between proof-reading and editing; then, I take the students through a guided self-edit. I intentionally don’t go in a “logical” order because I have found that students won’t skim over issues that way. (It reminds me of not asking questions in a logical order when doing cross-examination of a witness.) Second, I have students quickly scan their papers for all citations and highlight them orange. (We have a color-coded key we use for editing.) Next, without reading content, I have students do a quick check for paragraph length. If they see a problem, they don’t fix it then; they just make a margin note. We go on to check for numerous content issues, effective use of quotations, proper use of short cites, etc. Once we finish, I advise students to fix the problems they found that day, but then put the paper down for at least one day before they pick it up for the final read.

This system helps the students get in the habit of starting projects earlier and understanding that law writing is an interactive process.

Black-out Periods

Black-out Periods

November 2015

By Emily Grant – Washburn University School of Law

With exams quickly approaching, I’ve been pondering the utility of black-out periods – times when students may NOT ask you questions about an exam or other assignment. I conducted a survey (totally scientific, I’m sure) of my friends and colleagues to gather perspectives other than my own, and I offer these thoughts for you to ponder as well.

I was primarily interested in when professors imposed black-out periods and why. Do black-out periods advance student learning? Are they primarily for our convenience? Some other reason?

I impose a 24-hour black-out period AFTER I return any major writing assignment – I guess more of a “cooling off” period than a traditional black-out period. When I announce that restriction, I explain why: I want you to take time to process my comments and think about my suggestions or questions before marching (deliberately aggressive word choice) to my office with complaints. In other words, think before you speak.

Do they actually do that? No, not always; I’ve seen people three days after I returned an assignment who are just then opening the Sealed Envelope of Graded Memo for the first time. But this last time I returned a memo, I had a student email me within an hour. I was able to respond and say “that’s actually a really good question and precisely the reason I impose a 24-hour black-out period. I want you to wrestle with that question for a bit, dig back into your research and see if my comments help you better understand the case law and analysis.” So maybe?

But black-out periods BEFORE a particular exam or assignment can also be useful in sending a message to students: you need to have figured this out by 24 hours before the exam, because if you haven’t gotten it by then, you likely aren’t going to. Or, perhaps more compassionately, if you’re still asking major substantive questions twelve hours before a writing assignment is due, I will be very, very worried. In that way, we can perhaps signal our expectations for our students’ preparation.

A black-out period is also a matter of professionalism and courtesy. Please don’t expect me to be reading your email at 10:00 p.m. the night before the exam. You’ve had all semester to raise questions, and you shouldn’t feel entitled to any kind of response that late in the game. Some professors address this concern by allowing questions on a TWEN forum, but not guaranteeing any response after a particular day / time.

Additionally, late questions can have the potential to benefit one student at the expense of others who didn’t have or take advantage of the same opportunity. To that end, some professors prefer to send email answers to the entire class, in which case a one- or two-day black-out period may allow the professor time to carefully craft a thoughtful response to student questions.

On the other hand, as one of my colleagues put it, “Why would I want to stop student learning?” If they have questions up until the time of the exam, then some professors are more than willing to field those questions. Particularly given the compact exam schedules at law schools, a black-out period prior to exams would necessarily impact some students more than others.

What’s your policy? And what’s your motivation? Do you find black-out (or cooling off) periods effective? I’d love to hear from you!

Review: Casebooks and the Future of Contracts Pedagogy

Review: Casebooks and the Future of Contracts Pedagogy

Submitted by Andrea Boyack
Washburn University School of Law

Carol L. Chomsky, Casebooks and the Future of Contracts Pedagogy, 66 Hastings Law Journal 879 (2015) [Read fulltext at Hastings Law Journal website (151 KB PDF)]

In spite of the calls to enhance our courses by incorporating skills-building role-plays, collaborative small group exercises, and ripped-from-the-headlines real-life illustrations, the core of nearly every law school course remains the casebook. Casebooks drive course content and design more than anything else (possibly even more than the professor), and similarly are hugely relevant to student outcomes from and experience in class. Legal education has and continues to evolve; casebook content and design must therefore evolve as well.

Professor Carol Chomsky has added much value to the open question of how to best evolve teaching materials in her recent article, “Casebooks and the Future of Contracts Pedagogy.” In this thought-provoking piece, Professor Chomsky discusses six developments and concerns that are driving change in law school casebooks, and she suggests ways that casebook and course designers can steer the evolution of their course materials to meet evolving student and systemic needs. Although she groups the forces of change into six categories, these can largely collapse into two larger overarching evolutionary drivers: (1) A growing emphasis on teaching to practice, and (2) the need to give students what works, while keeping in mind student preferences. Chomsky frames her discussion of casebook evolution in the context of Contracts, speaking specifically from her own experience with the Knapp, Crystal, and Prince casebook and from developing her own Contracts casebook materials, but her suggestions are easily transferable to other disciplines.

Chomsky advocates that course content should be driven with an eye to the doctrine and skills that are needed for practice rather than merely based on historic or traditional content for a given course. In Contracts, for example, Chomsky points out that most casebooks spend a large amount of time and space focusing on issues related to formation and capacity. In practice, however, contract disputes almost never center on these issues. Transactional lawyers and litigators in breach of contract disputes focus mainly on issues of contract interpretation. It is difficult to emphasize interpretation through legal rules alone, however, because interpretation cases are very fact-specific, involving factual rather than legal determinations. Chomsky also points out that for an increasing number of real-life contracts (particularly consumer contracts), the sole legal issue ends up being the enforceability of a mandatory arbitration clause, because disputes arising thereunder may not even be judicially determinable.

In addition to emphasizing the most relevant and foundational legal doctrines in any course, Chomsky explains that a modern law course and a casebook must deliberately incorporate lawyering skills. This includes but is not limited to legal analysis. In Contracts, law students should learn not only to analyze a case or a hypothetical scenario, but to read and interpret contracts, to plan and draft the content of contracts, and to negotiate regarding contract formation and performance. These sorts of experiential components of contract law education are in line with new ABA accreditation standards and will help teach students what they need to know and want to learn. Furthermore, such lawyering skills may eventually (and rightfully?) be tested on the bar exam. Some of the key competencies that Chomsky (and the ABA) identified for a first year Contracts course include those interviewing, counseling, negotiation, fact development and analysis, document drafting, conflict resolution, collaboration, cultural competency, and self-evaluation. Casebooks should provide materials to teach these skills in addition to including the more traditional cases and notes that teach legal doctrine.

Casebooks also must evolve to reflect today’s best pedagogical practices. Chomsky details twelve “things we know about learning theory and practice” that could make teaching materials and course design more effective. In brief, learning outcomes are optimized when:

  1. Learning is active and effortful;
  2. New facts and concepts are connected to what is already known;
  3. Students can identify gaps in their knowledge;
  4. Students are repeatedly tested (“Testing helps students learn because it interrupts forgetting.”);
  5. Multiple topics are linked together (“interwoven”);
  6. Learning is connected with how the knowledge will later be used;
  7. Students are able to self-reflect and self-assess;
  8. Problem solving is attempted before solutions are given;
  9. Visual and verbal learning channels are accessed together;
  10. Students are taught the skill of reading;
  11. Students are led through the increasingly complex stages of learning (from accessible knowledge, to comprehension, to the ability to apply, analyze, synthesize, and evaluate);
  12. Students understand these pedagogical principals so that they can become effective learners.

Chomsky explains that these pedagogical principles should deliberately inform casebooks, and that casebooks should be designed to allow easy application of these principles. Furthermore, teaching manuals would do well to inform and advise professors with respect to the efficacy and methodology of these approaches, including implementation ideas and exercises.

Finally, Chomsky predicts that casebooks can – and should – evolve in response to student needs (“What will sell”). From an admittedly unscientific survey Chomsky conducted among her University of Minnesota Law School students, she came up with a list of eleven things that students would like to see in their casebooks, and, presumably, their law school courses. These student suggestions include things like more clarity in the presentation of legal rules (rather than burying legal rules in “opaque materials”), problems that they can use to test their understanding, better road-mapping with respect to a broad area of the law and how a given unit of study fits into that big picture, better connection of the law to the world around them and their future practice, and material that is better humanized with pictures and stories behind cases. Interestingly, students in Chomsky’s study also indicated that they prefer to have all casebook content be included in a hard-copy volume, and expressed comparative reluctance to use and access online textbooks, weblinks, and the like. Chomsky wonders if this reluctance to use digital learning tools stems from the fact that the current generation of law students learned from actual books, even though they learned to take notes on a laptop. If so, Chomsky wonders if this will change as future generations learn more from a screen rather than a page. (I for one certainly hope not because, in my completely unscientific opinion, people read and retain information better from a printed page.)

Casebooks, course design, and law school pedagogy are all evolving, and at a remarkably quick rate. Authors and professors who use casebooks would therefore do well to thoughtfully consider Chomsky’s suggestions when it comes to crafting casebooks and course design as well as selecting course materials.

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