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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


Review: Reframing the Socratic Method

Review: Reframing the Socratic Method

By Tonya Krause-Phelan, WMU-Cooley Law School

Reframing the Socratic Method by Jamie R. Abrams

Reframing the Socratic Method offers a fresh idea to redesign the Socratic Method from a professor-student exercise into an exercise that fosters diverse participation and develops essential lawyering skills. Professor Abrams acknowledges that the Socratic Method, used by law schools for over a century, has become the quintessential example of question-based learning. But contrary to many modern critics of the Socratic Method, Professor Abrams does not disparage the Socratic Method or call for its elimination. Nor does she endorse it. Instead, she encourages professors to restructure the Socratic Method in three ways to ensure it aligns with current innovations and reform: make it client-focused, research-focused, and skills-sensitization focused.

First, Professor Abrams suggests that the Socratic Method should focus primarily on the client, instead of the case. Traditionally, Socratic dialogue begins by asking the student what happened in the case which causes students to think about the case abstractly. As a result, students do not consider the case from the client’s point of view. Further, it does not permit students to scrutinize the decisions made by the lawyers in the case. With a few simple changes, professors can move the Socratic Method from a rule-based to a client-based task. Instead of asking students to recite the facts of the case, a client-based Socratic approach asks the student to explain what happened to the plaintiff or why the plaintiff sought counsel.  These modified questions still highlight the relevant facts of the case, but they allow students to understand the facts from the client’s point of view as well as to consider the attorney-client relationship.

Next, Professor Abrams recommends that instead of using the traditional Socratic Method approach to focus on case outcomes and hypothetical questions, the Socratic questions should be changed so that students use relevant legal authority to represent the client. Instead of asking a student to recite the court’s holding, students should be asked what precedent, the client’s lawyer would have found in preparing the client’s case. These modified questions, propel students to analyze the legal authority relied upon by the court, to understand how the precedent negatively or positively affected the client, and to understand the historical and social underpinnings of the legal precedent. To further insert research-based components into the Socratic dialogue, professors could require students to apply information contained in the case footnotes or to prepare supplemental material to answer research-focused questions. This allows students to develop the ability to assess the strengths and weaknesses of a client’s case.

Finally, Professor Abrams proposes that professors modify the Socratic dialogue to sensitize students to the broad range of legal skills needed to lawyer effectively. She acknowledges that this type of questioning may not be practical in every case. But when possible, the professor should ask questions that guide students to think about effective lawyering skills. These refined questions could range from what role settlement negotiations play in a client’s case to understanding the relevant ethical rules used to determine who the client is and how to meet the client’s objectives. Professor Abrams illustrates how reframing the Socratic Method in a commonly-taught constitutional law case, Reed v Reed, changes the dynamic of instruction from professor-student to student-propelled focus on the client, legal research, and effective lawyering skills.

Professor Abrams explains that reframing the Socratic Method achieves three benefits. First, it allows for coherence and continuity to legal education. Second, it trains practice ready lawyers because students will be better prepared to tell the clients actual answers to actual questions and they will be sensitized to how intensive legal research truly is. And third, it creates inviting and inclusive classrooms. While detailing specific examples for each type of modification she recommends, Professor Abrams illustrates how easily professors could modify the manner in which they already use the Socratic method to accomplish the current goals of innovation and reform.



Teaching Lawyerly Grit

Teaching Lawyerly Grit

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

Each fall in my Contracts course, when all of my other colleagues are giving midterms and thus committing themselves to early assessment of student performance, I deviate slightly from the norm. It’s not that I don’t do assessments or believe in early assessments—I actually start on that on the very first day and build many moments during the semester for such purposes. And it’s not that I don’t believe in midterms either—in fact, the exercise I will show you here does involve a midterm—but I use my midterm in Contracts very differently. I use it as a lesson on lawyerly resiliency and resourcefulness.

The midterm I always give in the fall is non-graded, but content-wise it tests all the doctrine that we’ve studied up and until the day of the exam. The test is supposed to take up 45 minutes of a single one-hour-and-fifteen-minute class period. The issues up for grabs include all of mutual assent (offer and acceptance), consideration, promissory estoppel, and contract modification—in both common-law and UCC Article 2 variants (and yes, that means Battle of the Forms, for those commercial law nerds out there). The midterm has both a standard racehorse essay and a set of factual multiple-choice questions. It is a closed-book, closed-notes, and closed-everything exam. It’s difficult; it’s awful; it’s indicative of my final exams, which means even I wouldn’t want to take it myself unless my life depended on it.

I administer the exam as usual. Even though it’s non-graded, my students usually take it seriously enough and have studied for it. And truthfully, I appreciate that. In the minutes before the test starts, I will hear some of them reciting rules and asking each other doctrinal questions. A day or two before, I might have seen a copy of my practice midterm packet strewn somewhere in the law library. On test day, they take their seats, put away their outlines and notes, and crack open their laptops.

What they don’t realize is that I have purposely drafted an exam that is so difficult and intense that it is—in all honesty—nearly impossible to finish within the time allotted. I have done my due diligence to set them up for failure.

But the difficulty of the exam content is only half of this exercise. Somewhere during those 45 minutes, as my students are typing away their answers, I surprise them by stopping the exam with a simulated disaster—usually a fake laptop crash or a power outage. I tell the students who have been typing fastidiously away that their laptops have crashed, while I immediately start passing out a pile of fresh bluebooks that have been hiding under the lecture hall podium. “Take a few. You’ll need to finish the exam by handwriting the rest of your answers.” At this point, the students who had opted to handwrite the midterm are trying hard not to smirk.

When I started law teaching, I did this exercise repeatedly with the goal of developing student examsmanship on law finals and bar exams. The inspiration for the simulated laptop crash came from personal experience because it happened to me during my first day of the California bar exam. Luckily, we had practiced for it. So although it wasn’t ideal, I knew what to do to persevere through that dilemma and pass a high stakes exam. When I began teaching academic support, I started simulating laptop crashes (and a parade of other horribles) that could potentially happen to derail an exam session. Even now, going into my sixth year of teaching first-year Contracts, I find this exercise to really have an impact in helping students develop exam-taking strategies and realizing that technology does not displace good old-fashioned legal reasoning. But in recent years, this midterm exercise has taken on more resonance as I use it as a springboard for talking about resourcefulness in the legal profession.

After the midterm exercise is truly done, I usually don’t debrief the context of the exam. I leave that to another day. The tension in the classroom is too thick. The collective anxiety on the faces of those who have just experienced a small disaster during a fake session of high-stakes testing needs to be dissipated. “Just think if this happened on an exam that counted—like a final or a bar exam,” I say. “Aren’t you glad this counted for nothing?” The first line doesn’t usually fetch a laugh, but the second one always does.

What I do in the remaining class period is discuss what it was like for them to take the exam and to debrief strategies on what to do when bad things happen in high-stakes exam scenarios. I tell them my joke that the first year of law school seems like the facts from the Palsgraf case—where seemingly things that can only in one’s imagination go wrong often do. Of course, I’ll get responses that are seeking my answer to the type of questions like, “If my laptop breaks during an exam, do I need to start over?” or “Who will fix my laptop after the exam?” But after I address those questions, I bring the lesson to a larger, more resonant take-away: that in law practice, where things can be more hectic than a round of first-year midterms, where feelings and passions can run high, and the stakes are larger than failing a bar exam, one must develop an emotional intelligence toward resiliency and resourcefulness. Sometimes professional expectations continue despite mishaps and setbacks. You might think you’re ready to take down an exam, but it could be the exam that will try to take you down. So what will you do about it? What will you do when it’s not an exam taking you down, but some emergency, some major shift in a case, or some set-back in negotiations that will try to impede your ability to represent your client? Where is your true grit?

Occasionally, I’ll get an e-mail from a former student recounting laptop malfunction during a final or bar exam. It’s always a thank-you e-mail. But it’s not the thank-you part of that message that I am looking for. Instead, it’s the part describing that, despite whatever that happened, the perseverance and a cooler head prevailed, and all was fine because of it.


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