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Using Instant Replay to Teach Standards of Review

Using Instant Replay to Teach Standards of Review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


[1]See, e.g., Steve P. Calandrillo & Joseph Davison, Standards of Review in Law and Sports: How Instant Replay’s Asymmetric Burdens Subvert Accuracy and Justice, 8 Harv. J. Sports & Ent. L. 1 (2017),; Kenneth Kilbert, Instant Replay and Interlocutory Appeals, 69 Baylor L. Rev. 267 (2017),; Russ VerSteeg & Kimberley Maruncic, Instant Replay: A Contemporary Legal Analysis, 4 Miss. Sports L. Rev. 153 (2015),; Mitchell N. Berman, Replay, 99 Cal. L. Rev. 1683 (2011),; Chad M. Oldfather & Matthew M. Fernholz, Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, 43 Ind. L. Rev. 45 (2009),; Aaron R. Baker, Replaying Appellate Standards of Review: The NFL’s “Indisputable Visual Evidence”: A Deferential Standard of Review, 16 Tex. Ent. & Sports L.J. 14 (2007),; S. Christopher Szczerban, Tackling Instant Replay: A Proposal to Protect the Competitive Judgments of Sports Officials, 6 Va. Sports & Ent. L.J. 277 (2007),; Bennett Liebman, Reversing the Refs: An Argument for Limited Review in Horse Racing, 6 Tex. Rev. Ent. & Sports L. 23 (2005),; Jack Achiezer Guggenheim, Blowing the Whistle on the NFL’s New Instant Replay Rule: Indisputable Visual Evidence and a Recommended “Appellate” Model, 24 Vt. L. Rev. 567 (2000),

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Escape the classroom: how to bring class simulations to life

Escape the classroom: how to bring class simulations to life

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

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

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

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

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

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

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

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

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


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

Should I Teach To The A Or The C Student…

Should I Teach To The A Or The C Student…

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

By Rory D. Bahadur, Washburn University School of Law

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

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

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

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

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

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

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

Problem Set

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

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

The following pedagogical concepts are engaged in the process:

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

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

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

Taking Advantage of What Students Know to Teach New Concepts

Taking Advantage of What Students Know to Teach New Concepts

By Sandra Simpson, Gonzaga University School of Law

When teaching a new and complicated concept, it is always a good idea to help our students make connections to what they know.  When teaching the idea of using the facts of the precedent cases to compare to the “client” facts in order to come up with a prediction of the outcome of the case, I use simple props and a simple exercise designed to connect this new concept to concepts they have mastered already.  To achieve the desired result, which is learning how to compare facts of cases to facts of the “client” and utilizing reasoning, I use different sized paperclips and a binder clip.

The explanation of this technique takes a bit of history behind how students learn best.  For every new concept I introduce to my students, I ask the following questions of my students:

  1. What is the concept for today’s course?
  2. What will be important ideas in today’s concept?
  3. What do you already know about this concept?
  4. To what can you relate this?
  5. What will you do to remember the key ideas regarding this concept?
  6. Is there anything about this concept you don’t understand or are not clear about?

These questions help the students better understand the new concept by focusing them on what will be covered, what they found important about the readings, what they already know about the topic, how to relate it to something they already know, how to remember it, and on asking for clarification and help.  My paperclip exercise comes in with number 4 “to what can you relate this?”

I separate my students into groups of three and give them each a large metal paperclip, a small metal paperclip, a plastic paperclip, and a binder clip.  Then I ask the groups to look at the two metal paperclips and compare them, factually.  Students come up with similarities: shape, material, and color.  I ask them, “how are the different?”  The students know that size is the difference.  The next question for them is “does that difference change matter?”  Students instinctively know that it does not.  When asked why, they can articulate that the purpose of the paperclip is to hold paper, and, thus, unless it is a huge stack of papers, the size does not really matter.  At this point, it is easy to say, “yes, if you know the purpose of the paperclip is to hold paper, then you can decide what differences and similarities are important.”  Next, I typically pause and let that sink in for the students.  After the pause, I tell them, “if the paperclip is a ‘rule’ and you know the reasoning behind the rule, you can more easily decide if the factual difference will be important to the court.”  Once that point is made, it is easy then to bring in the binder clip.  The binder clip is much different factually from the paperclip; but could the “paperclip rule” cover the binder clip?  I have the students debate this for a couple of minutes and report back to me.

It is a fairly cheap and impactful exercise which engages the students, connects a difficult concept to something they already know and helps facilitate learning.

[1] Submitted by Sandra Simpson, Associate Professor of Legal Research and Writing at Gonzaga University School of Law and the Co-Director for the Institute for Law Teaching and Learning.


The Easiest Technology for Doing the Hard Work

The Easiest Technology for Doing the Hard Work

By Sandra Simpson, Gonzaga University School of Law

As an absolute technological dinosaur and in an effort to avoid technology, I usually use low-tech “clickers” in the classroom, which are nothing more than two pieces of colored paper. That avoidance has started to change as I see others using cool and really easy technology in the classroom. In fact, to help others like me, the ILTL summer conference for 2018 will be centered on technology in the classroom. Technology can and should be used to engage students and forward the classroom and teaching goals, not just for the sake of using technology. My excuse for why I typically do not use technology is that my teaching and learning goals are reached without it. But where they? Are students as engaged as they could be? These questions have led me on a quest to adopt some new, easy technology aimed at engaging students while still forwarding my classroom teaching and learning goals.

This past summer, I attended ILTL’s annual summer conference in Little Rock, Arkansas, and learned about some simple technology. During one of the presentations, I was introduced to Mentimeter. I have no connection to this company, and I am sure there are other apps that work just as easily, but this is the one I used. At, you can create an account and then create questions to ask the students. The students log in and watch the results on the screen as they vote.

Thinking the use of it was so engaging and fun, I decided to use it in my LRW classes to introduce Blooms Taxonomy of Learning while introducing the important parts of the syllabus. After explaining Blooms Taxonomy, I had the students log into and enter an access code. I then asked a series of questions based on the syllabus. The first question was purely a recall question; the second question was an application question; the third question was an evaluation question; and the last question was a creation question. Between each question, we revisited Bloom’s Taxonomy and discussed learning and assessment of the same.

The energy and engagement in the room was beyond what I expected, as was the opportunity for learning. Students loved watching the results come in. Students were also ready to discuss why they voted one way or another. Further, the evaluation question asked the students to come up with one word which described the syllabus. I used the “word-cloud” function to show the results. Some of the words were positive; some of the words described levels of anxiety; some of the words were negative. This allowed us to talk about positive and negative feedback and the value of both. As to the last issue, had I asked the students verbally to share their opinions about my syllabus and the class requirements, I am willing to bet no one would have said the negative things. Yet, it is very important to me that my students can express positive and negative opinions and feelings. I hope this exercise opens that door.



Summer Plans to Plan for Fall

Summer Plans to Plan for Fall

By Prof. Emily Grant, Washburn University School of Law

As we now gaze out at the great expanse of the summer, it’s easy to get lost in the endless possibilities. This is the time we’ve set aside for major writing projects, for incorporating new exercises and assessments into our syllabi, and for getting up-to-date on the latest classroom materials.  We also need to recharge our batteries.

As I’ve come to learn over a dozen years of teaching (and thus a dozen summers teeming with endless possibilities), very few of these goals will be met without a specific and realistic plan of execution. I’ve had too many summers where I hung up my graduation robe, took a quick nap, and all of a sudden found that it was August 20.  So the following sets out a few suggestions for laying the groundwork for a productive summer.

First, finish grading. Attack your stack of exams and papers.  Students need closure for the semester, and so do you. Do whatever works for you to make it through the exams or appellate briefs or student papers. Make a schedule of when you’re grading what. Find a quiet comfortable place to set up shop. Take breaks when you need to. Reward yourself for progress.

While you’re at it, though, keep in mind that the grading periods are also some of the most convenient times to make notes for the next semester. This review does not have to be an intimidatingly formal process. I’ve found that simply keeping open a Word document, “Notes from Exam Spring 2017,” on my desktop while I’m grading can generate some very helpful insights for the next round. Most of the comments are similar to the following:

  • confusion on Trustee/Settlor distinctions
  • clarify uniform rule vs. state rule on prudent investment standard
  • Essay #2 (charitable trusts) didn’t work – refine call of question

Once you’re done grading, spend some time thinking ahead to the fall before jumping into the rest of your summer. If you took notes about your teaching throughout the semester (what worked, what didn’t, which classes ended too soon, which exercise was a dud), go back and review those now. Sort through the notes you made while you were grading. And make the changes now—revamp the worksheet, rewrite the assignment instructions, identify places in your notes you can cut if necessary in the future. At the very least, make a specific list of changes to be made before you teach this class again. But do that part now while it’s still fresh in your mind. Take a day or two at the office to focus solely on teaching, which is more difficult than it sounds with other major projects (and vacations!) looming over us.

Next, if your summer calendar looks like mine, you’ve got a few conferences scheduled over the coming three months. (Including hopefully the ILTL conference in Little Rock on July 7-8?!) Conference travel is great, but it can wear you out.  If you’re going to the trouble and expense of attending conferences, make the most of them. Go to sessions, engage in conversations, network with colleagues, meet new friends. I firmly believe that much of the value of conferences comes in the interpersonal interactions between sessions and over a shared meal. When you get back home, follow-up with emails to people that you connected with and presenters you really enjoyed. Nurture those contacts.

Do you also have a list of “work-related things to do” over the summer? An article to start? A fact-pattern to develop as a foundation for classroom discussion? A new edition of your textbook to work through? If so, plan accordingly. For me, those are the easiest projects to ignore (after all, I’ve got until late-August!), but in some ways, they’re the most important.  Schedule in time to work on these projects. Find an accountability partner with whom you can check in weekly to share your progress (or better yet, to share the work and combine ideas!).

I was going to add a paragraph about personal vacation travel and using that time to read law review articles you’ve been meaning to get through. That is a fine idea, I think, but I couldn’t bring myself to write it authoritatively because that’s not at all how I use my personal travel time during the summer! I’ve got an issue of US Weekly and the latest book club selection from Target in my carry-on. And that’s perfectly ok too! Allow yourself time to not be engaged in research, writing, or teaching prep.

But when you do return to the scholarly pursuits, it helps to break them down into smaller chunks, even over the “vast expanse” of the summer. I’ve found renewed energy in setting aside time to read one law review article a night by someone I’ve come to know personally (e.g., at a conference) or whose work is important in my field, even if it is not directly related to my current projects.

Regardless of your summer plans, plan ahead for the fall.  Give yourself the rest and relaxation you need so you’re ready to go in August, but also keep on task every now and then so you won’t be caught off-guard.

Conceptual Ideas Held By Students About Learning

Conceptual Ideas Held By Students About Learning

By Sandra Simpson, Gonzaga University School of Law

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

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

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

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

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


Comment Bubbles and Redline Documents

Comment Bubbles and Redline Documents

By Prof. Emily Grant, Washburn University School of Law

I live-grade one of my students’ early memo assignments.  It’s a short 900-word IRAC that I grade (in fact, read for the first time) in front of each student during an individual conference in my office.  One benefit of that process is that there is a chance for the students to explain choices that they made in the writing process.  “Why did you opt not to use this case?”  “What was your thought when you put together this paragraph?”

Another possible way to achieve a similar benefit without the time-consuming week of individual conferences is to have students use Word’s comment bubbles and redline function.  For any kind of document you have students create and turn in, comment bubbles could be a useful way for students to explain strategic choices they made.  You could ask them, for example, to identify specific places they deliberately tried to make a passage persuasive and how they went about that.  You could ask them to flag any time they intentionally used the passive voice and to explain why (which will give you a good indication of how well they know what passive voice is in the first place).  You could even ask them to label the parts of an IRAC in their analysis.  The comment feature serves as a self-assessment tool and permits more targeted feedback during grading and conferencing with the student.

Combining the comment feature with a redline document could also be illuminating.  You could have students “grade” or “correct” a sample exam answer, submit to you a redline version showing the changes they made, and include comment bubbles to explain why they altered the original answer.  Not only does this permit students to approach material from a different perspective – how would you assess someone else’s work for meeting certain criteria rather than how would you answer the question – it brings them closer to practice.  As any summer associate knows, practitioners read, edit, and teach through redlines.  Associates are to learn from the changes made to the draft by a more senior counsel and implement what they have learned on the next assignment.

A colleague of mine does something similar in his transactional drafting course: students are given contract provisions drafted by the other side in the transaction and are asked to edit the document on behalf of their client.  Part of their score on the assignment comes from how they have explained why a particular clause is problematic and how the language they proposed would solve the issue.

When I take the time to ask and listen, my students’ thought-processes as they were creating a particular written work provide insight into their learning.  That insight, in turn, can help me relate better to them and their struggles and will allow me to be a more effective teacher.  A job well-done also turns students into more effective, self-motivated, and independent learners.  Asking students to use comment bubbles and redlining is yet another tool in your arsenal to achieve those goals.


“Luddite” and Loving It

“Luddite” and Loving It

By Prof. Tonya Kowalski, Washburn University School of Law

All right, I confess: I’m not a true Luddite. I do appreciate gadgets as much as the next person, and I do use classroom technology when I need to do something really specific, such as show a video clip or (frequently) display something on the document camera.  But increasingly, I find myself enjoying going back to basics in the classroom.  There are no smelly, purple-inked mimeo sheets (ah, memories of Sister Angela’s iron rule…). But handouts are now standard fare again.

I used to rely heavily on PowerPoint presentations to structure my classes, believing that having a visual reference would help the students (and me) to keep on track.  But often I noticed that even in a no-laptops classroom, the screen at the front of the room tended to capture students’ attention more than the discussion, thus reducing eye contact and dropping some of the energy out of the room.

For me, a low-tech approach has dovetailed nicely with an increasingly “flipped” approach to classroom modules, where half or more of the time is spent on exercises, and the rest on lecture, review, and discussion. I reduce the exercise and perhaps some diagrams to a handout or two, and we work from that for the class. Laptops and phones are stowed away. At least in my small-to-midsize classes, I find that the having no distractions either at the desk or at the front of the room is encouraging more participation and engagement. Students are usually looking up unless they are working on an exercise alone or in groups. They don’t spend an inordinate amount of time taking notes (i.e., writing down everything on the slide), and can’t be dependent on slides to organize the material for them. Instead, the handout provides some organization and students must fill in the rest.

What works for each educator will depend on personality, comfort levels with the material, affinity for technology, and the subject matter itself. But if, like me, you tend to find using technology for most of the class session a bit distracting to the students and instructor, there are a number of upsides to going low-tech. More selective use of technology can reinvigorate the classroom—in small doses, it regains its power to awaken, especially when used just up to that 10-minute attention-span limit.  The course website or TWEN site can help to “flip” tech outside the classroom. Finally, students and professors can get a break from the constant presence of electronic information. For that last reason alone, a classroom low on tech and high on human contact many actually be the next big thing.


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