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Review: “All of the Above: Computerized Exam Scoring of Multiple Choice Items Helps To: (A) …”

Review: “All of the Above: Computerized Exam Scoring of Multiple Choice Items Helps To: (A) …”

By Heidi Holland, Gonzaga University Law school

Article: “All of the Above: Computerized Exam Scoring of Multiple Choice Items Helps To: (A) Show How Exam Items Worked Technically, (B) Maximize Exam Fairness, (C) Justly Assign Letter Grades, and (D) Provide Feedback on Student Learning” by Lynn M. Daggett, 57 J. Legal Educ. 391 (Sept. 2007).

All of us are working to integrate formative assessment pursuant to the mandates of ABA Standard 314, and multiple choice exams are one way to do it. However, few law teachers have training in how to use multiple-choice questions effectively.  While it is certainly not a recent article, Professor Lynn Daggett’s article is instructional and encouraging to both the novice and experienced teacher.  In her article “All of the Above: Computerized Exam Scoring of Multiple Choice Items Helps To: (A) Show How Exam Items Worked Technically, (B) Maximize Exam Fairness, (C) Justly Assign Letter Grades, and (D) Provide Feedback on Student Learning,” Professor Daggett introduces her readers to the strengths and limitations of multiple choice questions, explains what they can be used to measure, shows how data can be used to guide the assignment of letter grades, and provides specific examples of the concepts in use.

Professor Daggett begins by explaining “core psychometric concepts” including validity (construct, predictive, and content) and reliability.[1]  She also sets the framework for assessment: that it can be criterion-referenced or norm-referenced. Criterion-referenced tests measure whether a student can demonstrate mastery, whether it be of a skill or a concept.  A norm-referenced evaluation, on the other hand, compares a student’s performance against her peers.[2]

Effective instruction and assessment both require intentionality on the part of the instructor, and “law teachers have to decide what the purpose(s) of the [test/question] is, including whether the [test/question] is designed to separate out levels of learning within a class (norm-referenced evaluation), or to measure whether students have mastered specific concepts or skills (criterion-reverenced evaluation).”[3] With the instructor’s goal identified, Professor Daggett then explains how computerized scoring can be used as an assessment tool.

With the mean, median, mode, standard deviations and z-scores in mind, Professor Daggett offers instructors methods of assigning letter grades.  Nonetheless, data does not substitute for professional judgment, and Professor Daggett explains how she uses the data to guide her discretion always keeping in mind that we “perform somewhat of a gatekeeper function in assigning low letter grades, particularly in first year classes. . . . [A] grade of D+ or D from [her] means the student has demonstrated barely adequate learning of course concepts and skills and more generally should not continue in law school unless grades in other courses reflect considerably more mastery.”[4]

As previously noted, Professor Daggett’s article is not just informative; it is instructional. She explains how to decipher and use item analysis, which is part of a standard computerized scoring report from a multiple-choice exam. The article details how to judge the efficacy of test questions, provides an example of the specific information shared with students after an exam, and encourages all of us to provide feedback to students about concepts they have not yet mastered. With thorough explanations and three appendices, you should come away with a better understanding of how to use multiple-choice questions fairly to assess student learning.


[1] Pg. 394

[2] Pg. 399

[3] Pg. 401

[4] Pg. 401


Empirical Evidence that Formative Assessments Improve Final Exams”

Empirical Evidence that Formative Assessments Improve Final Exams”

By Barbara Lentz, Wake Forest University Law school

Article: “Empirical Evidence that Formative Assessments Improve Final Exams” by Carol Springer Sargent and Andrea A. Curcio, 61 J. Legal Educ. 379 (Feb. 2012).

Are you integrating formative assessment in your courses to satisfy ABA Standard 314, but wondering whether your time to develop, implement and evaluate student work will improve students’ learning?  In the article “Empirical Evidence that Formative Assessments Improve Final Exams,” Professors Carol Springer Sargent and Andrea A Curcio report that shifting away from a single summative assessment to a combination of formative assessments over the term coupled with a final cumulative exam provides a measurable performance improvement to 70% of the law students in the course. The authors describe their study, review types of and benefits from formative assessments, list practices to improve effectiveness of feedback, and seek to explain why the term-long formative feedback boosted performance only for students in the top 70% of LSAT score or undergraduate GPA (UGPA) cohort regardless of first year law school grades.

Their study was based on data collected in two subsequent Autumn terms of a large, doctrinal Evidence course taught by the same experienced professor. The control section was taught using a problem method with case analysis and students were assessed solely by a cumulative final exam that comprised the full course grade. In the following year, the intervention section was taught using the same problem method with case analysis, but also received a series of formative assessments: five ungraded quizzes, a graded midterm, model answers, grading rubrics, and a self-reflective exercise. The final exam in the intervention section comprised 83% of the course grade (allocated so that the final course grade would correspond primarily to the final summative assessment). The authors compared the final exam scores of students on eleven common final exam questions. The variance in common question scores, 3.02466 points out of 50 points, is about a half a letter grade (6.048 percent). Id. at 391. The effect for the top 70% of the intervention class, however, was 4.595 points out of 50, or almost a full letter grade (9.19 percent). Id.

Before discussing the implications of their results, the authors reviewed best practices for implementing formative assessments to improve learning. Formative assessments improve learning by helping students identify misconceptions and knowledge gaps and by motivating or refocusing studying. In their view, the most effective formative feedback explains to students why an answer is correct instead of merely showing the correct answer. According to the authors, other strategies to make feedback more effective are providing suggestions to improve performance, delivering feedback close in time to the assessment. Id. at 381-82.

The professors and students valued types of formative assessment differently. The authors posit that ungraded feedback may be more helpful in improving learning because it focuses the student on suggestions for improvement rather than solely upon the grades. Id. at 382.  However, student evaluations showed that while many students found all the formative materials to be helpful, the graded midterm was valued more highly. Students commented that model answers, grading rubrics, and professor comments were the most helpful feedback, but peer edits and self-reflections provided the least useful feedback. Indeed, more than one-third of students surveyed found the self-reflective exercises unhelpful. Id. at 392.

Sargent and Curcio write that the demonstrated benefit from formative assessment disproportionately accrued to the top 70% of students (arranged by LSAT or UGPA). Students in the intervention section with below median first-year law school grades did show improved performance, compared to the control group, but only if those students were in the top two-thirds of the class on UGPA or LSAT scores. Id. at 400.  By correlating LSAT and UGPA with performance on the final exam, this study showed the bottom 30% of students by LSAT or UGPA (regardless of first year grades) either did not or could not use the information from formative assessments to monitor and improve the quality of their work as measured by performance on the final exam. Similarly, results from a similar prior study (comparing civil procedure courses taught by different instructors in the same term), showed that practice essays only helped improve final exam performance of students with above median LSAT scores and UGPAs.

The authors presented potential explanations for the disproportionate allocation of benefit from formative assessment. First, it is possible that not all students are able to use feedback to improve. Students’ ability to calibrate what they know and don’t know is a metacognitive skill. Id. at 395-96. There may be a difference in students’ metacognitive abilities. If the top 70% of students possessed stronger metacognitive skills, they would be better able to process and apply information gleaned from formative assessment to improve their learning and subsequent performance on final exams. Id. at 384. The top 70% cohort may also have higher confidence in their abilities to effectively use feedback, which improves their abilities to better self-monitor and calibrate their comprehension. Id. at 400. Additionally, it is possible that students in the top 70% of the LSAT or UGPA cohort are more motivated by grades. Id. at 396.

While the article provides evidence that formative assessment improves performance, the authors disclose are three caveats: First, they are not able to identify which types of formative assessment led to higher exam scores in the intervention section. While students did not report the self-reflective exercises to be helpful, student perceptions “are not a direct measure of the actual helpfulness of the materials.” Id. at 395. Second, it is possible that students perform better when they know their performance being measured, (the Hawthorne effect). Id. at 398. Finally, the authors questioned whether the formative assessments, which they described as practice materials, might inadvertently encourage performance-oriented goals rather than encouraging deeper mastery learning. “In other words, do [formative] practice materials support those whose main goal is to get higher course grades rather than assisting those who wish to truly comprehend and master the content?” Id. at 399.

The authors did not believe that the shift to formative assessment unreasonably burdened faculty, particularly when faculty time over the entire term was considered. “While drafting the questions, model answers, rubrics, and self-reflective exercises initially takes a few hours, those materials do not need updating each term. Grading a short midterm also takes a few hours, but may result in faster final exam grading due to better quality responses. Alternately, giving a midterm may justify a shorter final exam, thereby reducing time spent grading final exams.” Id. at 400. Because formative feedback improves performance by explaining why an answer is incorrect, it may be possible to produce the same learning effect without administering and individually grading a mid-term, further minimizing instructor effort. The authors suggest undertaking a future study to discern whether providing a model answer to an ungraded midterm might provide a learning effect similar to individually graded midterms.

Finally, they observed that completing formative exercises and providing feedback reduced the amount of traditional instruction time relative to the control section. Thus, feedback must be more helpful in improving learning than the reduction in class time to cover material. Id. at 398. However, the substantial improvement shown by the intervention group seems to show that reducing time for traditional instruction in favor of formative assessment may improve student learning at least as measured by final exam scores for the majority of students.


Do We Need Subject Matter-Specific Pedagogies?

Do We Need Subject Matter-Specific Pedagogies?

By Rory D. Bahadur, Washburn University School of Law

In her recent Article Do We Need Subject Matter-Specific Pedagogies?, 65 J. Legal Educ. 839 (2016), Professor Kris Franklin invites us to consider the unique roles that the various foundational courses may play in the law school curriculum.

The Article was published as part of an AALS symposium dedicated to the teaching of civil procedure, and asks, essentially, what value there might be at considering legal pedagogy in the context of individual academic disciplines. Or as Franklin puts it: “Is good teaching simply good teaching wherever it is done, or is there something different about how we teach, or ought to, within each academic discipline?”

Using examples drawn both from the other pieces in the symposium itself and an earlier collection of essays on the teaching of civil procedure, Franklin carefully considers what a law professor new to the subject might glean from her colleagues’ writing.  She concludes that at the very least, studying the existing pieces on teaching civ. pro. would offer valuable tips on how to help students understand especially challenging subject matter.  More broadly, she observes reading other scholars’ work on civil procedure pedagogy could refine her sense of how to use the subject to teach some of the critical skills that lawyers, and law students, must begin to master. This inquiry, Franklin tells us, would be valuable in and of itself, because it would make her (and any reader) a better teacher of the subject.

But Franklin goes on to note that reading the other articles would do more than just offer technical advice about teaching this particular exacting course: It would show her how “a deep comprehension of civil procedure distinctly contributes to an understanding of what law is, or what it means to be a lawyer.”

Perhaps it is Franklin’s suggestion that most law Professors when asked what good pedagogy is, will respond in very broad brush, general terms, which lays the foundation for the article’s most salient point.  At bottom Franklin suggests we examine each of the foundational courses and specifically identify which subset of the “good pedagogy” principles each class is best suited for rather than trying to make each class employ all the pedagogical tools we typically identify as good pedagogy.

She begin the process of identifying which of the foundational courses are the best pedagogical vehicles for specific aspects of what we all tend to agree law students need to learn or what good pedagogy entails.  For example she suggests:

  • Criminal law introduces students to the importance and function of statutes (at least, it does so more than other first-year courses tend to). Most criminal courses heavily reference either the Model Penal Code or the state or federal penal law.Perhaps they even study and compare more than one of these sources. Yes, there are codes relied on in other introductory courses, but criminal law courses teach students that they must always read carefully the specific language of the statutes to determine what offenses might legitimately be charged for a given set of facts.
  • Contracts law is particularly intricate. It could be especially important in helping to hone students’ analytical precision. Furthermore, its problems have to be approached in an unusually constant order: asking first whether a legally binding agreement was formed (mutual assent plus consideration); second, whether it was breached; assuming it was, whether there are any defenses to that breach; then finally, what if any damages the parties to the agreement may claim and receive. This remains the case despite the fact that there is wide variation in the order in which these basic steps are covered in contracts courses. If students grasp this “flow chart-ish” nature of analyzing contracts problems, they are often well on their way toward understanding contract law itself, and they have reinforced an organizational skill that may be helpful in other areas as well.
  • Constitutional law is probably the only foundational law course, maybe the only class in law school altogether, in which each and every case matters for its own sake. Consequently, constitutional law as a discipline requires analogical reasoning to important cases in a way that few other introductory law courses do. Beginning law students often do not use cases well, in part because they find it especially difficult to fathom why they are reading particular cases. Students frequently cannot distinguish those cases they are reading as simply being among any number of examples that might have been selected to illustrate how a particular legal rule operates, as opposed to those leading cases that are assigned because they introduce or solidify the doctrine. In contrast to most other required introductory courses, allcases in a constitutional law casebook are likely leading ones, while this is true of perhaps very few of them in a property casebook. Students of law should therefore learn and use those cases in different ways. A teacher in constitutional law may help students understand why the assigned cases have unique importance in this course, which could in turn help law students discern the differences between leading cases and those offered merely as examples. If so, students could learn how to use cases in a more sophisticated way in all of their classes.
  • Evidence problems seem to lend themselves to meticulous specificity in the application of a set of rules that becomes thorny when argued in given situations. Some evidence professors suggest that multiple-choice testing is especially useful in that subject because of the way rules of evidence are used in the courtroom–as points for rapid and discrete debate, often handled spontaneously and settled definitively. Regardless of assessment method, it may be true that evidence courses offer exceptional opportunities for their students to hone pointed argumentation skills within rigorous application of legal rules.

She suggests that grasping this latter point would go a long way toward developing a broader theory of how each of the standard required courses in the law school curriculum contributes to the “gorgeous mosaic” of learning law itself. She invites us to consider how every one of our courses fits into that big-picture view of the legal curriculum, so that we can consciously teach each course to more effectively educate tomorrow’s lawyers.  In addition to all of the above the article challenges us to examine the courses we teach and to actually quantify what good teaching entails beyond a simple and shallow reiteration of buzz phrases.



Review: The Integrated Law School Curriculum

Review: The Integrated Law School Curriculum

By Andrea Boyack, Washburn University School of Law

Adam Lamparello, The Integrated Law School Curriculum, 8 Elon Law Review 407 (2016) [Read fulltext at Elon Law Review website (664 KB PDF)]

Professor Lamparello, Associate Dean for Experiential Learning at the newly inaugurated Indiana Tech Law School, lays out the case for a law school model integrating doctrinal, practical, and clinical legal education and then explains his school’s innovative plan to achieve that vision. By so doing, he and his institution take one brave step to follow the ABA’s advice for legal academia, to evolve through experimentation (“take thoughtful risks” – see Report and Recommendations of ABA’s Task Force on the Future of Legal Education (304 KB PDF).

The justifications cited by Lamparello for an integrated law school curriculum are as familiar as they are compelling. He echoes the call for vertical integration among courses as a way to better prepare students for legal practice, stating that “law schools must re-think the traditional ‘silo’ model of legal education, in which the three pillars of legal education – doctrinal, skills, and clinical courses – are nestled into separate parts of the curriculum, as if one has no relation to the other.” He notes that learning is best done in context, that assessments should be coupled with opportunities for students to incorporate feedback and revise assignments, and stresses the broad and important role for legal writing instruction. He explains the meaning and importance of seven types of competency-based learning outcomes.

But in addition to joining the chorus calling for better curricular integration, student assessment, and faculty collaboration, Lamparello also sings an interesting solo detailing his vision for precisely how this integration might be designed. Lamparello advocates for a quantum leap – rather than incremental – type of curricular change, noting that “a fully integrated, competency-based, and experiential program of legal education requires structural and sequential changes to the curriculum.” His vision involves an unusually high level of collaboration among faculty members so that classes all operate in support of and in the context of one organizing and comprehensive, multi-issue hypothetical that law students will be “litigating” throughout their three years of law school. This cross-curricular hypothetical sets up the framework for students to immediately start integrating various doctrinal areas of the law.

The sample hypothetical included in Lamparello’s article raises a surprising number of diverse issues, ranging from divorce and domestic violence to fraud, fine print, and consumer financial protection to due process rights and judicial ethics to negligence, causation and manslaughter. It also sets up a framework for students to learn lawyering skills in a chronological way (in the order in which they would be used in practice). For example, first semester students would perform a client interview, draft a retention agreement, research case law on first-year topics, and draft a predictive memorandum and then a complaint. Second-semester students would engage in the next steps of simulated litigation practice, including drafting motions, answers, and discovery requests. Third semester students would draft an appellate brief. The cross-curricular hypothetical does not substitute for doctrinal classes, but rather sets up a simulated laboratory for principals, presumably learned in a more traditional Socratic exchange, to be applied and honed. Each first-year doctrinally focused course would be carefully organized to coincide with and support the cross-curricular hypothetical. For example, criminal law would cover mens rea and actus reus to prepare the students to draft interview questions for the hypothetical client charged with manslaughter. Contract formation principals would support student drafting of a retention agreement. And civil procedure study of pleading requirements and jurisdiction would immediately be put into context through drafting the jurisdictional and fact sections of a complaint.

In addition to having all courses link together through the core hypothetical fact scenario, Lamparello’s vision also includes a six-semester legal writing program and a five-semester clinical program that would support the school’s overarching student learning objectives. The described legal writing program would provide students with specific instruction and individual feedback on their written work products in connection with the cross-curricular hypothetical, and its six-semester structure allows deliberate instruction not only with respect to basic persuasive writing and legal document drafting, but with respect to transactional drafting, the art of editing and re-writing, and methods of narrative storytelling. The five semesters of “live-client clinic” experiences are designed to complete the comprehensive bridge into practice, giving law students client experiences as early as their second semester, building up from screening interviews to litigation teams, to small-scale litigation representation, to “capstone course” primary client representation of clients “on complex matters at the trial and appellate level.”

Lamparello’s vision is undoubtedly ambitious, both in terms of how carefully tailored the three-year plan and each semester must be, but also in terms of how intensively faculty must collaborate to achieve success within the plan. Excruciatingly detailed preparation and collaboration would be required to successfully implement the program, from coordinating specific dates and content for topic coverage in each course and coordinating assignments among various faculty members. And this planning and implementation of the integration plan is just on the front end of the three-year program. Faculty must also continually coordinate and devote significant time and resources to provide students with the high level of individualized feedback and instruction that Lamparello envisions.

It may be that Lamparello’s truly integrated three-year plan for law school learning is unattainable, at least in an imperfect world with limited resources and instructional competencies. But his shoot-for-the stars aspirations can at least shake things up in the legal academy and inspire others to think of ways – large and small – to achieve the curricular design improvements that nearly all pedagogical scholars are calling for: integration of doctrines, skills, and practice; breaking down walls between topical silos; and building bridges from legal study to the actual practice of law.

Review: Dawn of the Discipline-Based Law Faculty

Review: Dawn of the Discipline-Based Law Faculty

By Barbara Lentz, Wake Forest University School of Law

Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 Journal of Legal Education506 (2016) [Read fulltext at Journal of Legal Education website]

For this month, two articles are reviewed to consider the implications of a study describing current hiring practices of top-ranked law schools in tandem with a classic description of the caste system in the legal academy. Can we reconcile the predicted transformation of the legal academy with the demands of the ABA, bar and students to prepare practice ready lawyers?

First, a review of the study on hiring of JD-PhD candidates for entry-level law faculty positions at top 26 (footnote 1) ranked law schools presented by Lynn M. LoPucki in “Dawn of the Discipline-Based Law Faculty,” 65 Journal of Legal Education 506 (2016). Professor LoPucki studied entry-level, tenure-track hiring at the top 26 ranked law schools for the 2011-15 period and found that 67% of these hires held JD-PhD degrees. For the same period across the legal academy, he reports that 21% of entry-level tenure-track hires by American law schools held both JD and PhD credentials.

Contrary to conventional wisdom that JD-PhD candidates would spend more time preparing for their teaching careers than JD-only candidates, LoPucki reports that the JD-PhD hires spent half a year less than JD-only hires preparing for their careers in law teaching. (Emphasis in original). While PhD credentialed hires do have training in producing scholarship (and many have published prior to hiring), one-third of 2011-15 hires had no legal experience (up from about one-fifth in a prior, 2010 study).

“The PhD is now a credential acquired in lieu of legal experience,” reports LoPucki. JD-PhD hires are both less likely to have legal experience (training in clerkships and law firms) and likely to have less of it – only 43% of the JD-PhDs had practiced law, and averaged only 0.9 years of legal experience compared to 86% of JD-only hires with an average of 3.6 years legal experience. At higher ranked schools, LoPucki found a negative correlation between length of time preparing for a legal teaching career and school ranking. Even for JD-only hires, he writes, “the top twenty-six schools do not prefer candidates with more legal experience.”

Professor LoPucki observes that the transformation of law faculty to discipline-based (rather than JD-only) has accelerated sharply over the past few years, and predicts that a transition to hiring JD-PhDs almost exclusively “may already be past the point of no return.” He writes that this transformation “is occurring without meaningful debate” over the merits of hiring JD-PhDs with little (or no) legal experience at the same time that law schools are being challenged to produce practice-ready graduates. He concludes by opining that the shift to JD-PhD hiring will “reduce the [law] schools’ capacity to prepare students to practice law.”(2)

Professor LoPucki confined his study to tenure-track hires, the top tier in the law school caste system described by Kent Syverud more than a decade ago. To engage in meaningful debate over the shift to JD-PhD hiring and its potential impact on law schools’ ability to prepare practice ready graduates, consider re-reading the classic essay written in 2001 by Kent Syverud, now Chancellor and President of Syracuse University: “The Caste System and Best Practices in Legal Education,” 1 Journal of the Association of Legal Writing Directors 12 (2002) (164 KB PDF).

President Syverud listed best practices for teaching law and described how the adoption of best practices in legal education was retarded by law schools’ “unique caste system” which categorized both people and teaching methods in ways harmful to the outcomes of legal education: “Strong caste lines discourage dissemination of best practices where, as in legal education, it is lower castes that have been more responsive and innovative in applying learning theory inside and outside the classroom.”(3)

Syverud distilled substantive best practices into three basic requirements: 1. the law teacher to know individual students well enough to reveal and correct individual misconceptions; 2. Law students to acquire deep understanding of the substance of what they study; and 3. a learning community in each class where students could take charge of their own learning through interactions with their teacher and peers. Best practices (drawn from sources including an ILTL symposium) included student-faculty contact in and outside of class; active and cooperative learning; prompt and frequent feedback; clear communication of high standards; and diverse teaching methods to reach all learners with a variety of techniques. Not only were these best practices time consuming, but they also were identified with the lower castes in the law school.

Syverud described seven castes present in most American law schools. The top tier were tenured and tenure track faculty: they are paid the best, have the most security, rarely change what or how they teach; value research but abhor grading and most often teach a large lecture class with a single final exam. Deans and administrators were the second caste: because they talk with judges and the bar more than the tenured faculty, deans tend to be more concerned with teaching methods and bar passage rates. Third are clinical faculty: they emphasize skills and learning by doing, but some are seeking to produce scholarship to look more like the tenured faculty (while others resist efforts of legal writing faculty to improve their status). Fourth, and lower caste, are legal writing faculty: they have lower pay and less respect, greater teaching loads and face caste discrimination. Law Librarians have an unusual status, being led by a high caste tenured faculty member and providing service to the tenured faculty: this class also has the best awareness of technology and its implications for best practices in legal education. The lowest teaching tier are adjunct faculty, which Syverud described as “temporary foreign visitors” from rich and civilized countries who may also be more likely to adapt what and how they teach in order to meet the changing needs of the legal profession they are immersed in every day.(4)

Because the lower caste legal writing faculty were more likely to interact with students, give weekly assignments and team exercises and provide frequent formative feedback, upper castes were unlikely to adopt those best practices (and others) for fear of being viewed as lower caste. Further, most of the teaching effort was delegated to the lower castes, particularly to the people who teach writing. Just as Syverud observed in 2001, at some institutions people, teaching and stereotypes have diverged from his described system, yet “caste still seems awfully powerful and enduring.”

What might LoPucki’s predicted shift in hiring exclusively JD-PhD candidates for tenure-track, top caste faculty with little to no legal experience, combined with the enduring caste system Syverud described which allocates few resources but much teaching work to lower castes mean for law schools challenged to prepare law students for practice? Perhaps that discussion could also be part of the meaningful debate suggested by Professor LoPucki as we consider the implications of staffing in meeting demands on law schools to better prepare students to practice law.

(1) LoPucki explained that he intended to study the top 25 law schools, but in the 2012U.S. News and World Report rankings, there was a 5-way tie for 22nd place, meaning 26 schools were surveyed for the 2011-15 period.
(2) LoPucki also notes that another effect of requiring a costly credential like a PhD may be to reduce racial and gender diversity.
(3) Syverud, at 18.
(4) Syverud described the law school staff as the untouchable caste, and deplored how law students learned to treat staff poorly by modeling the behavior of the upper castes.

Review: Tired of Talking: A Call for Clear Strategies for Legal Education Reform

Review: Tired of Talking: A Call for Clear Strategies for Legal Education Reform

By Rory Bahadur, Washburn University School of Law

Sara Rankin, Tired of Talking: A Call for Clear Strategies for Legal Education Reform: Moving Beyond the Discussion of Good Ideas to the Real Transformation of Law Schools, 10 Seattle Journal for Social Justice 11 (2011) [Read fulltext at Seattle Journal for Social Justice website ]

This thought-provoking article suggests that attempts to reform legal education are ineffective because the magnitude of the inertia perpetuating the normative face of the current legal educational model is severely under estimated. Additionally, current proponents of reform have not developed a strategic plan to reform but rather approach reform hoping that substantive support for reform is self-executing.

Initially the author points out that it is myopic to view legal education reform as merely a change in content. Rather legal education reform, like any other reform, should be viewed as a subversion of established power or a revolution, and she states, “no revolution no matter how valid and compelling its basis can succeed without a tactical plan.”

Next she suggests we analyze the reason for failure of the progressive education movement because many of the techniques and instructional theories touted by contemporary legal education reform (or CLEAR as the author calls it) have their genesis in this movement. The author lists nine theories which the progressive education movement and CLEAR have in common, and while a description of each is beyond the scope of this article it is worth mentioning what they are to illustrate the core of CLEAR: experiential learning, active learning, situated learning, differentiation, service learning, transformative education, collaborative learning and interdisciplinary teaching.

In order for CLEAR to avoid a fate similar to previously unsuccessful educational reforms, Rankin suggests that metacognition strategies must be implemented to transform the substantive strategies above into a coherent reform movement. The three most important steps she suggests reformers focus on are: initially, consider whether reform efforts can form the basis of a feasible movement; next determine the language or terminology that best defines the reform; and, finally articulate an action plan to effectuate the reform.

In order to effectively begin the metacognitive process mentioned above, the author suggests CLEAR advocates need to engage in some rigorous self-assessment, which involves answering the following eight questions:

  1. How much do I and my colleagues really understand about current efforts to reform legal education?
  2. What do I/we know about the arguments for reforming legal education?
  3. What are the bases for these argument?
  4. What specific terms of reform have been or should be embraced by my institution?
  5. Do my colleagues and my administration share a common understanding of these terms? If not, what institutional support exists to facilitate a common understanding?
  6. Is my administration committed to providing ongoing training or education to support innovation?
  7. What specific pedagogical and curricular modifications can I/we make to reflect contemporary knowledge about teaching and learning?
  8. How will I/we measure progress in meeting these reform objectives?

The author suggests that one of the impediments to converting the substantive strategies into a coherent and effective movement or revolution is that most CLEAR advocates after reflecting on these questions could not facilitate a substantive discussion about the transformation of legal education. This coherence and understanding of what CLEAR reformers are actually advocating is the first step on the way to an effective movement. Similarly the author cautions, in a way that is all too reluctantly familiar to many proponents of CLEAR,

Reform rhetoric is distinct from substantive discussion about reform. Substantive discussion is based on data, information, and education; it involves collective and sustained effort; it develops commonly understood goals and strategies; it offers meaningful guidance on implementation and practice; and it provides ongoing assessment and support. Ultimately, substantive discussion spurs action.
Of course, substantive discussion is far more difficult than rhetoric. That is why so many of us opt for rhetoric, settling for “the quick fix and … ad hoc, small-scale, piecemeal innovations.” In the context of education reform, this posture is not a compromise; it is a total surrender. If we continue to pay “more lip service than mind service” to the transformation of legal education, we cannot expect real change.

The article concludes by reiterating the magnitude of the task associated with CLEAR and providing a tangible way to achieve the reforms.

We cannot arm ourselves simply by writing more articles or attending more conferences. We must become more metacognitive about the process of reform. We must organize, define concrete terms, articulate clear strategies, develop and implement plans to validate the impact of these strategies, lobby at the highest levels, and continue to build our constituency until we prevail. The transformation of legal education is an epic battle. We must be prepared to fight–or to lose.

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.

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.

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.

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