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Become Obsolete Graciously Please and Stop Blaming our Students

Become Obsolete Graciously Please and Stop Blaming our Students

By Rory D. Bahadur, Washburn University School of Law

Most of us have heard the lament from colleagues that, “Because K-12 and undergraduate has changed so much since we went to school, students enter law school today undereducated and so unaccustomed to rigor, that law schools need to invest an inordinate amount of time just to enable students to be competent at the things that lawyers need to do.”  Corollary comments are:  students can’t write, and their grammar is deficient yada yada yada.

Taken to its logical extreme, this sentiment means the practice of law and civilization is essentially dead because kids no longer learn the things needed to become successful lawyers. There are a few things which have been deemed correct assumptions of our civilization at different times in our history.  Reflect on the reactions of people at the time as they slowly discovered these things were not true:

  1. The sun rotates around the earth;
  2. The earth is flat;
  3. The earth is at the center of the universe;
  4. Women are inferior to men;
  5. Continents are immovable; and
  6. The ether is a necessary transmission medium for light.

We can all agree that these are no longer true.  Yet are the following assumptions we cling to as law professors equally false?

The first assumption is there is value to the minutia of grammar and our students are deficient because their grammar and punctuation skills are not “like ours were.”  A counter narrative, however, says ‘Grammar is classist, it’s ableist, and it’s oppressive. It reeks of privilege, and those who spend their time correcting others’ grammar do too.”[1]  One wonders whether Shakespearean elitists of the 16th century could ever imagine that “thine grammar would become archaic and clumsy.”  Grammar may also be a race-based check on valuation of individuals according to their conformance with an artificial social construct.[2]

The second assumption is that today’s students don’t know how to work.  I will suggest here that what efficient and hard work was 10 years ago is in large part inefficient and archaic today.  Today’s students have instant access to information that we had to “work hard” to get.  As a result, what we envision as “productive hard work,” needed to get information is now inefficient and useless because they can ask Siri and get the same information.  Their time is better spent creatively using information rather than memorizing and obtaining it.

If you don’t believe me, try to learn a legal concept with which you are unfamiliar.  11 years ago, that concept for me as a new teacher was 11th amendment immunity and the Seminole Tribe case.  I spent hours researching law review articles, reading cases and trying to figure out where a good starting point was for the doctrine.  I mentioned the struggle I was having to my 16-year-old son who said, “Read Wikipedia first.”  I did and in three and a half minutes was able to have a clearer starting point for the doctrine than after three or four days of “hard work.”

Much of the research on Millennials and Generation Z suggests that professors who have information and pass on knowledge are viewed as close to useless by today’s students.  In order to engage these students, we need to provide context and demonstrate how information and knowledge is useful in current and relevant ways.  That’s not their fault.  Knowing stuff is no longer a big deal but the creative use of the information everyone has access to is what’s important today.

 

[1] https://medium.com/no-prescription-needed/grammar-the-worlds-most-under-recognized-social-construct-a54e096ecc9c

[2] https://medium.com/no-prescription-needed/grammar-the-worlds-most-under-recognized-social-construct-a54e096ecc9c

 

Review: Critical Reading for Success in Law School and Beyond

Review: Critical Reading for Success in Law School and Beyond

By Jane Bloom Grisé, University of Kentucky College of Law

Scott Turow, the bestselling author of One L, compared reading cases to “stirring concrete with my eyelashes.” Reading cases is challenging for many law students, but critical reading skills are incredibly important for success in law school and legal practice. Empirical research shows that lawyers read cases differently than non-lawyers. In addition, top law students use different reading strategies than lower performing students. While expert legal readers read cases to solve client problems, novices often read to memorize facts. Higher performing law students use an arsenal of different reading strategies depending upon the complexity of the case, but novices tend to indiscriminately highlight large quantities of text. Critical Reading for Success in Law School and Beyond was written to teach students the skills utilized by lawyers and higher performing law students. This book introduces students to a series of critical reading strategies so that they can become effective readers and move on to be successful in law school and law practice.

The Critical Reading program is premised on two ideas. First, it is based on the idea that critical reading should be taught. While it is often assumed that students enter law school fully equipped to read and understand cases and statutes, there is no evidence to support this assumption. One student in a focus group conducted in connection with the Critical Reading program indicated that reading a case was like looking for a purple dinosaur without knowing what a dinosaur was or what the color purple looked like. Critical reading strategies can be taught, and it is important to explain to students, as adult learners, how these strategies will improve their ultimate performance.

Second, Critical Reading is based on the idea that strategies should be presented in a sequential manner. As Bloom’s taxonomy suggests, students must master the lower level skill of understanding before they can be expected to engage in higher level skills, such as analysis and synthesis. For this reason, Critical Reading starts by examining the purpose for reading cases—to solve problems. Students are also introduced to the structure of cases so that they can understand different sections of cases. Critical Reading then presents information about civil and criminal procedure so that students can understand some of the commonly used terminology found in cases.

Then the program teaches students pre-reading strategies such as understanding the context of cases and doing case overviews before reading more carefully. After students master these foundational skills, they are introduced to techniques for reading facts and understanding complicated text. Rather than simply providing a template for a case brief, the program examines the components of a case such as the issue, holding, and dictum, and provides techniques to understand the main ideas in the case. Higher level skills such as finding rules, synthesizing cases, and evaluating cases are addressed at the end of the book.

These strategies can be introduced and incorporated into all classrooms in a few ways. First, students can be advised that they should read cases to identify rules and concepts that will be used to solve client problems or hypotheticals on a final exam. Students should be explicitly told that they do not need to memorize most cases.

Second, students can be instructed to read actively and pretend that they are either one of the parties in the case or the judge. Studies have found that higher performing students read actively in this way. Professors who ask students how they would decide the case or how one of the parties would argue in the case are encouraging students to adopt this active reading strategy. Finally, professors can take one sentence from an opinion and model good comprehension techniques such as paying attention to conjunctions, noticing repeated words, and shortening long sentences by inserting periods.

Critical Reading describes these and other strategies that can be introduced in the fall and/or spring semesters. As you are planning the spring semester, consider incorporating critical reading strategies into your courses. If you would like to discuss how you can introduce these strategies to your students, please feel free to contact me at jane.grise@uky.edu.

Skills-Focused Exam Prep Exercise

Skills-Focused Exam Prep Exercise

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

Yes, it is again that time of the semester again. The post-Thanksgiving emotional climb of test anxiety is upon us much like the Christmas music that has begun to trail us at retail stores.  I can see that anxiety in the eyes of my first-year students coloring their expressions when I greet them in the hallway or stare at their faces in the lecture hall.  Once November hits and the days start to get shorter, the inevitable fear of exams loom.

For many of them, the fear of exams is really about not having any confident direction or know-how in terms of preparing and taking law school exams.  That’s natural for new first-years.  What I’ve uncovered over the years is that a simple conversation with students is very helpful to allow students who are new to law school testing to get a handle on how to perform well on first semester finals.  I call this my yearly exam pep-talk.

What has been even more helpful prior to having my pep-talk is to give my first-years an exam-writing exercise that doesn’t focus on whether they are substantively correct on the material, but focuses on the skills of exam writing itself.  Then afterwards I have the talk about exam taking.  I tried this exercise recently with high satisfaction and success.  My theory is that after having an exercise that only focused on exam-taking allowed us to have an even fuller discussion of exam writing and solidified much of the truth about that process in order to dispel the fear of finals—the fear of some sort of unknown, in other words.

Here’s what I did:

(1) I gave a one-issue hypothetical fact pattern in class that covered a recent doctrine we recently taught in class.  Through class dialogue and discussion, I tested the students on their substantive application of that fact pattern.  I made sure to go the rule and the most correct response, working out the substantive answer together in class so that we’re all on the same page.

(2) Then I requested that they each take the same fact pattern home and write a one-issue IRAC response that reflected what we’ve already worked out for this fact pattern.

(3) At the next class, they returned with their written IRAC responses.  I passed a rubric for that response.  However, the rubric only measured their ability to write an organized IRAC essay—measuring for characteristics such as organization, IRAC structure, clarity, and grammar/syntax.  I made students turn to a partner, exchange fact patterns, and grade their partner’s response using this skills rubric.

My intent was that if the substantive issues had been clarified previously, the students were then able to focus on the how-to of writing exams when they wrote the one-issue IRAC at home.  For instance, they were now better able to focus on strategy and making effective choices in organizing an IRAC during the exam session.  Then grading each other’s responses with my skills rubric made it easier for them to understanding my thought process as the grader.

Doing this before my exam pep-talk helped them have better questions to ask me when I took the time to talk to them about exams.  What resulted was more effective focus and questioning regarding the skills part of their answers rather than the substantive aspects.  It led to a much better and more constructive conversation about exam taking that I had ever had.

Review: Feedback Distortion: The Shortcomings of Model Answers as Formative Feedback

Review: Feedback Distortion: The Shortcomings of Model Answers as Formative Feedback

By Lindsey P. Gustafson, UA Little Rock, William H. Bowen School of Law

Elizabeth Ruiz Frost, Feedback Distortion: The Shortcomings of Model Answers as Formative Feedback, 65 J. Legal Educ. 938 (2016)

Elizabeth Ruiz Frost’s article Feedback Distortion: The Shortcomings of Model Answers as Formative Feedback was published in 2016, but it continues to affect the way I design and critique my students’ assessment activities—both in my classroom and across our curriculum—as we respond to the ABA’s mandate for more formative assessment. Professor Frost posits that, while providing a model answer (either student- or professor-authored) in place of individual feedback may allow for efficient formative feedback, in most situations it does not provide effective formative feedback. She points to evidence that weaker students tend to misinterpret model answers and are less capable of accurately assessing their own work against the model.

In her article, Professor Frost gives reasons beyond efficiency a professor may have for giving feedback through a model answer, including that learning through a model answer encourages a students to self-teach, a skill they will rely on throughout their career; model answers provide feedback quickly, while students are still primed for it; model answers will not alienate students with personalized, negative comments; and model answers are what students clamor for. Professor Frost explains why each of these reasons is inadequate to justify what she describes as a shift in the learning burden: the professor avoids learning how to provide effective feedback by forcing a student to learn how to improve from a model.

Model answers provide effective formative assessment only if students are able to compare their work with a model and see what they did wrong. Professor Frost roots the assumption students do this in the “Vicarious Learning and Self-Teaching models of education, which have pervaded legal teaching since the nineteenth century.” In fact, whether this feedback is effective depends first on the characteristics and mindset of the learners, and second on the type of knowledge the professor is assessing. As to the first variable, because weaker students are less self-aware, they face a “double curse”: “[t]he weakest students, who lack the ability to distinguish between the standard exemplified by a model answer and their own work, will learn the least from a model answer. So the students who need feedback most for continued learning will get the least.”

The second variable is relevant because model answers can provide effective feedback for questions of factual knowledge and concept identification. But any assessment that requires higher-order thinking—where students need to demonstrate analysis, for example—model answers are not as effective. Students instead need elaborative feedback.

Professor Frost ends her article with methods for using model answers to give feedback that best promote student learning: (a) providing an annotated model answer together with individualized feedback; (b) creating opportunities for remediation and reassessment for students after they have reviewed model answers; (c) using a student’s own work as a model answer; (d) requiring students to review model answers in small groups instead of individually; (e) providing multiple sample answers for review, including both strong and weak samples; and (f) focusing on metacognitive skills throughout so that students can better self-evaluate against model answers.

Several of her methods have worked for my students. Recently, I’ve noticed the first method recommended above working across the curriculum: students learn more from a model answer when the same skill (here, answering a midterm essay question) is tested in another course and personalized feedback is given there. In short, learning in one course is improved by the efforts of professors in other courses.

Review: Spaced Repetition: A Method for Learning More Law In Less Time

Review: Spaced Repetition: A Method for Learning More Law In Less Time

By Tonya Krause-Phelan, WMU-Cooley Law School

Spaced Repetition: A Method for Learning More Law In Less Time by Gabriel H. Teninbaum
17 JOURNAL HIGH TECHNOLOGY LAW 273 (2017)

Spaced Repetition explains why spaced repetition is so much more than learning from flashcards. This article presents a concise tutorial detailing the psychological phenomena known as spaced repetition and how it can help to law students, bar preppers, and practitioners learn the law more quickly, effectively and efficiently. Discovered in the 1800’s, spaced repetition is a learning and memorization method that not only improves the way people learn and prepare for exams, it also fosters faster learning and greater retention. To understand how spaced repetition promotes learning and aids memory,  it is important to consider the three related psychological phenomena that form a spaced repetition system: the forgetting curve, the spacing effect, and the testing effect.

The forgetting curve is the decline in the ability to recall information. This occurs because as soon as a person learns something, they begin to forget it. To combat the forgetting curve, spaced repetition cues learners to restudy immediately before the learned material is predicted to be forgotten. Research shows there is an ideal moment to reinforce learned information. Recalling the information at just the right time allows learners to not only keep the memory active, but to identify the information that has already been forgotten so it can be targeted for restudying.

The spacing effect requires study sessions to be properly spaced to slow down the forgetting curve. Because of the initial steep decline of the forgetting curve, learners will need to review information frequently at first. Over time, the spacing effect increases allowing learners to wait for longer periods of time between review sessions. If done correctly the spacing can go from hours, to days, to weeks, to months, and even to years. As a result, material learned via spaced repetition in the first year of law school could be reviewed periodically throughout the second and third year of law school to be easily recalled during bar review and the bar examination.

The testing effect describes the ability of people to more readily recall learned information. Learners experience the testing effect when they recall learned information by testing themselves instead of passively observing the information. The benefit is even more pronounced when assessment is followed by meaningful feedback that includes exposure to the correct answer. The most effective spaced repetition techniques involve learners answering questions which force them to use their memory as much as possible such as free recall, short answer, multiple-choice, Cloze deletion exercises, and recognition. But spaced repetition can be so much more than just definitional flash cards and fill-in-the blank exercises; it can also be used to help learners apply complex content.

Early on, spaced repetition systems had to be created and used by hand. However, today, mobile applications have opened up a whole new world of possibilities for staging spaced repetition platforms. While Spaced Repetition is a primer on the basics of spaced repetition systems, it also promotes the author’s web-based platform: SpacedRepetition.com. The author has built in several key benefits into his platform including: it’s a web-based platform easily used on smartphones and mobile devices; it uses an algorithm to apply spaced repetition; it includes expertly created core content; it allows for editable content; it provides a third slide option (to include other pieces of black letter law or context); and, the content is shareable.

Spaced repetition can help law students, bar preppers, and practitioners learn more effectively and efficiently. The author cautions, however, that spaced repetition requires more than just looking at flashcards. Users of spaced repetition must still learn how to organize, apply, and express the law. But, if learners use spaced repetition outside of the classroom, legal educators can make more effective use of flipped classrooms as well as active learning and application exercises. While this article promotes the author’s platform, it is worthwhile read for legal educators looking to understand and provide spaced repetition learning opportunities for their students.

 

Review: Of Courtrooms and Classrooms

Review: Of Courtrooms and Classrooms

By Rory Bahadur, Washburn University School of Law

Daniel Cover, Of Courtrooms and Classrooms, 27 B.U. Pub. Int. L.J. 291 (2018)

In her recently published article “Of Courtrooms and Classrooms,” professor Cover suggests ways that trial lawyers can increase the efficacy of their presentations to juries by analogizing the jurors to students in a law school classroom.  Even though the article is targeted at practicing attorneys her comparisons of jurors and law school students provide useful insight in to the hallmarks of effective pedagogy.

In her introduction, Cover points out that essentially a trial lawyer’s job is to convince jurors who have no idea going in what the case is about. She does this through a storytelling/narrative technique that captures the jurors’ attention even though many of the concepts coming at them are new and they are in a difficult environment where long days promote fatigue.  This she suggests is akin to the law professor’s job in the traditional doctrinal classroom.

She then examines the theory of how adults learn or andragogical information and concludes that some essential components of adult education are:

  1. The student rather than the subject matter is the center of the inquiry
  2. Adults learn better when they have a need or experience learning will satisfy
  3. Adults want to be self-directed in their learning
  4. Because of the various experiences acquired over the time it takes to become an adult, effective pedagogy must take into account difference in style, time, pace and place of learning.

The article goes on to describe in tangible and very useful ways law professors and trial lawyers can ensure the principles listed above are incorporated into presentations.  However, the most fascinating of these is here reference to the “disorienting moment.”

Cover explains that in the law school classroom and in trials students and jurors experience moments when their previously held beliefs and assumptions are challenged.  This she explains is a “disorienting moment.”  She suggests that these disorienting moments, when an adult’s schema are challenged, provide the most fertile ground for planting the seeds of new information. This is because challenges to schemas facilitate the incorporation of new information into the schemas and the creation of new schemas.

If you take only one useful piece of information (though the article is chocked full of useful information) form Cover’s work, then consider she suggests designing classroom presentations to deliberately include disorienting moments which facilitate significant incorporation of new knowledge into old knowledge.

Ultimately, the article is well researched and very useful.  It is a must read

 

 

Notes on Supporting Non-Millennial Law Students

Notes on Supporting Non-Millennial Law Students

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

Usually about this time in June—during the early-to-middle weeks of the summer break—is when I do an assessment of my teaching from the past academic year.  By now, all of my final exams have been scored for a while and grades have been submitted.  Students are gone off for their summer jobs and internships.  A sense of quiet resides within the faculty hallways and invites contemplation.  For me, it’s a great time look back because the distance from finals grading has dissipated any visceral feelings—positive or negative—that might have otherwise influenced a look-back at my teaching.  I want any assessment to be as honest and objective as possible.

In looking back this particular year, I note the presence of a few more non-traditional, older law students in my first-year courses than usual.  Because of their increased presence, the challenge of trying to support them was thrust upon me from fall to spring.  Of late, I have seen many great pieces in current law teaching literature focused on teaching law students from the millennial generation.  However, when curiosity got the best of me and I searched for current articles on teaching and supporting law students outside of the millennial generation, I found some statistical knowledge, but not very much constructive observations or information.  For those likeminded folks who have also wondered how to better teach and support our older, non-millennial law students, I have a few observations from my own experiences this year.

  1. Non-millennial law students are not a homogeneous group. Just because they are beyond the current mainstream generation of law students in age, does not mean that they resemble each other either.  Many of my non-millennial law students varied in age and background from each other as well.  As a reflection of that variation, they brought to the student body many differences in socio-economic status, career backgrounds and goals, and life experiences.  For me, as the instructor, this variation also meant trying to use different strategies to make them feel included in the dialogue in the classroom—often relying on their practical experiences before law school to invite conversation.  For instance, in Contracts, cases dealing with homebuying or employment relationships often allowed my non-millennial law students who own property or have had working experiences to engage in the material from a more practical way and offer insight.
  1. Non-millennial law students often prepare differently for classes than younger law students. One very observable characteristic between my millennial and non-millennial law students has been in their method of preparation.  Whereas my millennial law students will often find something in their case reading is relevant only because it’s relatable at the time to a concept that we were readily and simultaneously learning in the course, my non-millennial law students will try to broaden what is relevant and significant by asking themselves, “Do I need to know this just in case?”  This difference translates into their preparation for my classes and final examination.  While I have to sustain relevancy for my millennial law students, I have to show my non-millennial law students what material or information might be extraneous.
  1. Some non-millennial law students tend to become important emotional pillars in the student body. Because of their life and career experiences prior to law school, my non-millennial law students often become role models in extra-curricular positions or become sources of emotional support to their millennial counterparts in the first year.  This occurrence often does put added stress to their own studies and time management.  As the professor, I often will remind my non-millennial law students to take a moment and assess what they can or cannot take on—especially for those students who might also have an active family life or work responsibilities outside of law school.
  1. Non-millennial law students learn just as quickly and as readily as millennials. I have no quantitative or qualitative statistics here.  This observation is just anecdotal.  However, I have witnessed the successes of many non-millennial students in my various classes, which gives me confidence in making this statement.  I do concede that success could be attributed to the amount or type of preparation that non-millennial students put forth rather than natural ability.  But I stand by this assertion, nonetheless.  It is an observation that counters biases against any societal perceptions of “handicaps” to learning as an older law student.
  1. Non-millennial law students bring a contextualized experience to the dialogue of the classroom. Often, this observation is touted as a reason to welcome the admission of older law students in law student body.  It adds to the diversity of the student population and can be seen as generating different viewpoints in class dialogue.  That is true to some extent.  However, I have noticed that sometimes the prior work, life, or industry experiences outside of law school can also impair ways to see the other side of a situation—especially if they have had some extensive work experience in something related to my course.  So I often will spend time in the classroom welcoming their viewpoints but also de-contextualizing them by countering with hypotheticals that might get them to see other possible sides of an issue.

These points above are generalized observations and not all non-millennial law students exhibit these traits.  However, I hope my descriptive observations here give some guidance and food for thought to other law teachers out there who are interested in making sure non-millennial law students succeed just as well as their millennial peers.

 

Review: Teaching Law Students to Teach Themselves…

Review: Teaching Law Students to Teach Themselves…

By Rory Bahadur, Washburn University School of Law

Teaching Law Students to Teach Themselves: Using Lessons from Educational Psychology to Shape Self-Regulated Learners, 59 Wayne L. Rev. 311

In her article, “Teaching Law Students to Teach Themselves: Using Lessons from Educational Psychology to Shape Self-Regulated Learners,” Elizabeth Bloom sets forth a very user friendly and informative road map for “maximiz[ing] the learning experience” to help a “diverse population of law students become self-regulated learners.”

The article initially defines self-regulated learning and discusses its origins in both the cognitivist and constructivist learning theory movements.  She isolates the essential components of self-regulated learning as Schema creation, using prior knowledge to add new knowledge and metacognition.  She concludes by precisely describing self-regulated learning as consisting of the following three phases: forethought, performance, and reflection.  The unique aspect of this article is that it then describes concretely and tangibly what each of these phases looks like or consists of rather than leaving those terms as isolated amorphous learning buzzwords divorced from the reality of the classroom.

But the article goes even further and provides concrete methodologies to teach self-regulated learning.  These methodologies are broken down into strategies to:

  1. self-regulate motivation,
  2. self-regulate behavior and resources and,
  3. self-regulate cognition.

This article is a must read for anyone seeking to bridge the divide between the copious abstract, academic literature on teaching and learning and practical strategies to implement these methodologies without being overwhelmed by terms and buzzwords which seem foreign to may faculty members.

 

Review: From Seminar to Simulation: Wading Out to the Third Wave

Review: From Seminar to Simulation: Wading Out to the Third Wave

By Tonya Krause-Phelan, WMU-Cooley Law School

From Seminar to Simulation: Wading Out to the Third Wave by Margaret Moore Jackson
19 JOURNAL OF GENDER, RACE, AND JUSTICE 127 (2016)

From Seminar to Simulation: Wading Out to the Third Wave encourages legal educators to embrace simulated teaching in light of the newly-adopted ABA standards relating to experiential learning. Because ABA Standard 303(a)(3) requires students to complete at least six credits of experiential coursework which can be earned in law clinics, field placements, or simulation courses, Professor Jackson suggests that simulation teaching can be integrated into existing courses by reformatting seminars, those upper-level, reading and discussion-based courses that typically focus on specialized areas of law not usually tested on the bar exam. Reformatting a seminar course as a simulation course allows faculty to accomplish two significant goals. First, it provides an experiential learning opportunity for students that meets, if not exceeds, the new requirement. Second, it can also create an opportunity for students to develop and use professional values as they learn to apply the law.

Beyond meeting the new standards, including simulations as experiential teaching is a way professors can foster integrated learning. Many professors already incorporate classroom exercises and role play into their doctrinal classes. Even though these efforts are designed to develop students’ professional skills, they do not satisfy the ABA’s definition of a simulation course. To comply with Standard 304, a simulation course must reasonably assimilate the experience of   client representation or engage in other lawyering tasks in a set of facts and circumstances devised or adopted by a faculty member. The simulation course requires faculty to directly supervise the student’s performance followed by faculty feedback and student self-evaluation. Finally, there must be a classroom instructional component.

From a faculty perspective, a potential barrier to merging simulated teaching and experiential learning into existing courses is the time-consuming nature of simulation teaching. Faculty are also apprehensive about how much subject matter will have to be sacrificed to carve out enough time for the simulation component. Despite the potential difficulties, there are many benefits to simulation teaching. For starters, simulation teaching assists in applied knowledge and introductory skills development in that it cements learning of substantive law. Faculty can continue informal doctrinal teaching as students engage in simulated roles by structuring assignments that teach practical lawyering skills that will also reinforce their learning of legal analysis. And because simulated teaching fosters concentrated learning of professional skills and values, it also promotes justice, underscores service to the community, and helps students to overcome assumptions and inherent biases.

Although the ABA requirements for a simulation course appear formidable, Professor Jackson suggests that restructuring courses to provide students with six credits of experiential education might not be as daunting a task as some might think. Professor Jackson provided a template for creating a plan convert a seminar course into a simulation course based on her housing discrimination class. But the format easily translates to any substantive class or seminar. Begin by identifying the competencies students should achieve by the end of the course. Make sure to envision these competencies in the context of the area of law. The objectives should be relevant and realistic in the area of practice. Be careful to limit the goals to an amount that can be effectively implemented and assessed. Consider a format that focusses on repetition and refinement of targeted skills in relation to more elaborate doctrine.

For example, in Professor Jackson’s fair housing seminar, students were assigned to represent a hypothetical client. The assignments required students to know the applicable law, provide client advice based on the law and the particular situation, communicate with other lawyers, judges, and real estate professionals as the client’s case required, and to be alert to potential injustices. Supplementing exercises included professional writing activities and oral presentations to a community audience.  A final component of the exercises encouraged students to focus on client communication designed to develop relational skills and empathy, dispel students’ false assumptions about the role of law in society, and to develop their self-conceptions as professionals to promote justice.

Transitioning to simulation teaching provides faculty with opportunities to connect learning the law with developing the skills, instincts, and inclinations to use the law to promote justice. Whether a professor seeking to augment a doctrinal class with experiential learning exercises or a professor looking to dive into the full spectrum of simulated teaching, From Seminar to Simulation: Wading Out to the Third Wave provides the pedagogical support and procedural format to transition to simulation teaching.

 

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.

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