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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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.

Random Thoughts About Resistance To Active Learning

Random Thoughts About Resistance To Active Learning

By Rory D. Bahadur, Washburn University School of Law

“Active learning is generally defined as any instructional method that engages students in the learning process. In short, active learning requires students to do meaningful learning activities and think about what they are doing . . . .”  Specifically, it “refers to activities that are introduced into the classroom.”  It includes but is not limited to “small group discussion, debate, posing questions to the class, think-pair-share activities, short written exercises,” and generally involves in-class problem solving, student formulation of their own questions, and in-class brainstorming.”[1]

If you aren’t doing things described above or like the things described above, then you aren’t doing active learning.  Period.   So, in this regard “interactive” classroom atmospheres are not substitutes for active learning classrooms.  Interactive learning simply means that a student interacts with a professor.  You ask a Socratic question and the student answers and boom you are engaged in interactive learning.  You have a lively humorous bent to your presentation and again this satisfies the definition of interactive.

Interactive classroom techniques still tend to be professor driven and are simply thinly disguised versions of the typical classroom hierarchy which is the opposite of active learning.  If you find yourself describing effective teaching around observations of your class room that include, “I was funny,” “they liked my slides,” “I was so energetic they had to pay attention,” or even “I gave them context for what they were learning,” you may be engaged in some other pedagogical process but not active learning.

As long as you continue to believe that effective learning depends on your mouth moving or you being the source of the knowledge or even the source of the understanding of the material then you cannot be engaging in active learning.  The hardest part about transitioning to active learning is realizing that given the right guidance or exercise structure, the students in your classrooms are all capable of gaining the knowledge you are seeking to bestow upon them with less direct involvement from you than you currently believe is necessary.

This is a humbling experience for most of us.  It may be high time to really think if ego and our need to be necessary prevents us from letting go and whole heartedly engaging in active learning.  The doctors can’t be wrong after all as there is a massive trend in medical schools to make active learning the primary pedagogical technique.  Of course, they are meeting resistance as well because their equivalent of Langdell is reaching out from the grave with a heavy inertial hand.  It is worth remembering that Langdell prescribed Socratic teaching for law students about ten years after the Emancipation Proclamation.  I hope that we do not feel unnecessarily bound to pedagogies and norms from that era.

[1] https://www.everettcc.edu/files/administration/institutional-effectiveness/institutional-research/outcomeassess-active-learning.pdf

 

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