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Précis

Précis

This teaching idea comes to you from the directors of ILTL [1]

Précis

Précis is a French word, pronounced pray-see, that refers to a way of summarizing text to include the meaning of the original text but to be as concise as possible. It can be an effective tool to solidify understanding of a particular document, and it could be used a couple of different ways in a law school setting.

Often, in thinking about legal briefs or memos, experts talk about a topic sentence outline—making sure the topic sentence of each individual paragraph flows in a cohesive argument throughout the document.  The exercise of condensing each paragraph to just one topic sentence is a version of précis.

Students could use this technique to more deeply understand a case opinion as well.  Number the paragraphs of an assigned opinion, and have students create a précis.  Essentially, they will be writing a topic sentence for each paragraph of the judicial opinion in their own words, except when the words used by the court are terms of art, then they should use those terms of art.  The goal is to essentially create a topic sentence outline of the opinion that would allow the reader to follow the full course of reasoning.  It’s not a summary; students should write in the voice of the court.

Important pieces of a précis:  Who is the actor?  What is the function of the paragraph? What is the substantive content of the paragraph? And then focus on conciseness—use clear, simple language and eliminate unnecessary words.

For example, a précis of the equal protection discussion in Loving v. Virginia might look something like this:

1 The Supreme Court of Appeals of Virginia upheld the constitutionality of the State’s ban against interracial marriages because (1) preserving the racial integrity of its citizens was deemed to be a legitimate governmental purpose and (2) marriage traditionally lies within the sphere of state regulation rather than federal regulation.
2 The State argues that (1) the Equal Protection Clause does not apply because it was meant only to prohibit differential punishment based on race and (2) as a result, the Court should apply deferential rational basis review to the laws.
3 The mere fact of equal application does not remove a law from equal protection scrutiny; laws containing racial classifications must meet a very heavy burden of justification.
4 The legislative history surrounding adoption of the Fourteenth Amendment does not clearly support the contention that it was meant to address only criminal laws that imposed differential punishment on the basis of race.
5 Precedent to the contrary has been repudiated.
6 Laws, like this one, that rely on distinctions based on race, must be shown to be necessary to the accomplishment of some permissible state objective other than race discrimination itself.
7 The law is supported by no overriding legitimate purpose outside of racial discrimination itself.
8 Anti-miscegenation laws also violate the Due Process Clause of the Fourteenth Amendment.
9 Marriage is a fundamental right which cannot be infringed upon based on racial classifications.

[1] Hat tip: Susannah Pollvogt, Associate Dean of Student Success, University of Arkansas School of Law

How to Use Formative Assessment Data to Tailor Teaching

How to Use Formative Assessment Data to Tailor Teaching

By: Cynthia M. Ho, Professor at Loyola University School of Law

The principle of using frequent (multiple times a class and every week) formative assessment data to tailor teaching underlies Click & Learn, a Civil Procedure teaching tool that I created with Professor Angela Upchurch and Professor Susan Gilles.  However, this approach works in any doctrinal class.

How Can Formative Assessment Data Help Teachers?

Formative assessment data can help you know what students have mastered.  Saved time can focus on tougher concepts and/or permit other activities such as group exercises.

Alternatively, if there are topics that a substantial number of students did not get (i.e., at least 20-25% wrong), class time can be used to improve understanding.

What Formative Assessment Data?

Data can be derived from both “objective” (i.e. MC and T/F) data and narrative (i.e., essay answer and discussion board posts) assessments.

Data can provide trends to inform your teaching.  “Objective” data is easiest to scan.  But even narrative data can be efficiently reviewed if you review a small sample.

A Word of Caution: The Need to Focus Students on Learning

Teachers know that the point of formative assessment is to help students learn.  To reinforce this focus, students should get full credit towards class participation for all timely and “professional” submissions (i.e., doing the entire assignment in more than 30 seconds).

Three Options to Tailor Class

Here’s an overview of three options to tailor class:

Type of Formative Assessment Example How much class tailoring +/-
1. In-class only In-class polling Minimal +  easiest to incorporate;

–  least tailoring

2. Outside class only (a) “Objective”

(b) Narrative

Medium + more tailoring, no need to adjust “on the fly”

-no ability to tailor during class

3. Combo-in & outside Both of the above Maximum + maximum tailoring

– maximum prep time

In addition, here are the benefits of each type of assessment for tailoring how you teach class.

Type of Formative Assessment Example Goals
1.In-class only In-class polling -review of material just covered to ensure mastery

-emphasizes a point

– provides application practice

– changes the pace of class and maintains engagement

2. Outside class only (a) “Objective”

(b) Narrative

-Objective questions with detailed explanation provide  feedback to help ensure the entire class has mastery o

-provides application practice

3. Combo-in & outside Both of the above -all of the above, plus long-term learning benefits

Now that you know the big picture, let’s dive into the details.

  1. In-Class Only

Here’s a few examples of how to use in-class polling.

In-class polling to recap material just discussed

One way to incorporate polling is to ask a question after introducing a concept.  So, for example, after discussing what is a trade secret (TS), a polling question could ask students to apply what they know.  The left shows slides introducing the concept whereas the right shows the polling question.

In-class polling to emphasize a point in the assigned reading

A polling question can emphasize an issue since students will remember something if they get it wrong.  Here is one example that reinforces an issue students otherwise often miss without a poll:

  1. Outside Class only

Data based on formative assessment outside class can also help tailor class time.

For topics where the data shows students are struggling, these can be handled in two ways.  First, the question can be displayed again in class to solicit discussion of the right (and wrong) answer, together with reasoning.

Here’s one example where the question students previously had trouble with is on the left, with the key Civil Procedure issue of 1331 subject matter jurisdiction is on the right:

Alternatively, a new application question can be posed in class that asks students to discuss the same concept, but in a new factual setting such as the following:

Isn’t it a waste of time to review issues in class if formative assessment provided an answer?

No!  Even after students read an explanation, they may need more reinforcement.  Students say they prefer to review tougher questions in class even after reading the explanation.

How do you use data from narrative assignments?

Class discussion can also be tailored based on sampled essay data.  For example, after reviewing a few essay answers from a Civil Procedure, class a slide addressing noted issues can help organize the in-class discussion as shown below:

  1. Combo – in and outside

The best way to tailor teaching involves combining the previously discussed approaches.  Basically, conduct formative assessment outside class and then use that data to focus class time on needed issues, including in-class polling. This seems to promote long-term learning; students studying for the bar often email with delight to note that they remember concepts studied two years ago.

Tailoring can be truly maximized with a flipped law class where students learn material before  class. Click & Learn enables faculty to easily do this.

Even without using a flipped class approach, the Combo approach still provides more polling benefits. How?  Let’s explore.

A new in-class polling question may use the same facts from an outside-class “objective” question but pose new answer choices.  These choices can focus on issues underlying wrong answers students previously chose but stated slightly differently. This is shown below:

Data from narrative answers can be used to create a new in-class polling question to assess the entire class and reveal to confused students that they are not alone.  Here’s one example:

Data from narrative answers can also be used to help students compare what is and is not a strong statement to include in an essay answer.  Here’s one example with answer choices from sampled student answers:

Now what?

If you want more info, check out [How to choose a Formative Assessment Platform] and/or slides from the related Summer 2021 Conference presentation are available here.

And, of course, the best way of learning is by doing.  So, hopefully you’re now inspired to do more with your own data using some of these techniques!

Training New Lawyers to Recognize and Confront Structural Violence

Training New Lawyers to Recognize and Confront Structural Violence

By Jocelyn Getgen Kestenbaum, Associate Professor of Clinical Law at the Benjamin N. Cardozo School of Law, Director of the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic and the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR). Continue Reading

Make Failure Flattering:  Embracing Classroom Struggles, Creating Real World Successes

Make Failure Flattering: Embracing Classroom Struggles, Creating Real World Successes

By Maj Wolfgang S. Weber, U.S. Air Force Academy[1], Assistant Professor Of Law

To all my students, past, present, and future, please forgive me, I have something I need to get off my chest:  I enjoy seeing you fail in the classroom.   

Well, at least initially. 

As educators, we constantly reflect upon how we can make our class an academic journey worth taking. Sure, we could lecture till we’re blue in the face; but is that really as effective (or fun) as an interactive effort that helps students recognize their own strengths and weaknesses within the material?

When I first began teaching, I meticulously walked my students through every single lesson, “If you have a question please don’t hesitate to stop me and ask!” I never wanted to leave a rock unturned; I never wanted to leave the class with lingering inquiries. I would spend countless hours thinking about exactly what I would say each lesson. I felt a need to tell them everything.

Before long, however, I quickly came to two realizations:  1) even though I was covering all the material, they weren’t fully processing it; and 2) I was boring.  

I was failing. But as you may guess, I’m glad I did.

From my own classroom failures, I reflected deeply on my deficiencies as an educator. I thought about everything I was doing step by step. I spoke at length with my more seasoned colleagues. Soon, it became clear – I was robbing my students of the opportunity to fail. 

Failure is undoubtedly one of life’s best teachers. As we can all likely attest, many of our most profitable educational lessons, both in and out of the classroom, come from failure. Even the most gifted toddler will certainly fall before she learns to walk. In an academic setting, nothing speaks quite as loudly as unmasking a student’s own deficiencies. Of course, this is far easier said than done. In Tony Wagner’s book, Creating Innovators: The Making of Young People Who Will Change the World, Wagner points out that many traditional academic settings penalize students for failure and discourage them to take risk. Thus, as educators, creating an academic environment that teaches students through failure can be an uphill battle. 

The best solution? We must give them permission to fail.

In all my classes, I am constantly thinking about new ways to allow my students to experience failure. In my law class, throughout the semester every student is assigned the task of creating and presenting a different hypothetical legal scenario that they must then teach the class to analyze. In my negotiations class, at some point each student must negotiate with a classmate while the rest of the class observes. In both instances, I make it a point to not teach the students the applicable material beforehand.

On the day of, the students hesitantly make their way to the front of the classroom – visibly nervous about doing or saying something incorrectly in front of their peers; but before a word ever leaves a student’s mouth, I provide a preface to the class: 

Before Sidney and Graham begin, I want to quickly tell them both … ‘thank you.’ While each of them will undoubtedly do some things correctly, they will almost certainly also do some things incorrectly … they will fail. And that’s okay. While we learn in many different ways, one of the best ways to improve is learning from our failures. The Wright brothers didn’t build a flying plane on their first attempt, and none of us, including me, are likely to conduct perfect legal analysis on our first go.  

But the important thing is that we all have the courage to make that first attempt, and that we all are open-minded, tactful, and considerate in our criticisms. Let’s thrive together from an academic environment that lauds mistakes and embraces growth. Graham, Sidney – thank you both for being vulnerable in front of all of us today and giving us this chance to learn … please proceed.

As the students proceed, the class watches eagerly. By the end of the exhibition, I ask the students to take a seat, often receiving applause from their classmates without prompting. Then, I unapologetically ask the entire class the tough questions:  What did they do right? What did they do wrong, where did they fail? What could they have done better?

On most occasions, the students burst into an array of discussion, both complimenting and critiquing their peers with little reluctance; while their peers themselves anxiously receive the feedback, often following up with further questions about their own shortfalls. From there, I jump into the academic lesson, teaching the material while interweaving it with the student presentation and subsequent dialogue.

Over years of teaching through this method, the results have remained consistent: Nine times out of ten, students fail miserably during these exhibitions. Fall flat on their face. But then, the consequent transition transforms them as they ponder all the hidden lessons that did not initially come to mind. Lightbulbs start flashing above their heads as we discuss the new material. And by the end of the class, they’re smiling. They love it. Within an hour, they have gone from defeat to success. They have experienced growth before their very eyes and they’re better for it. By the end of the semester, student feedback repeatedly reiterates these exercises as class favorites.

ather than lecturing at them, consider creating an environment in which students can readily experience and reflect on their academic weaknesses safely. Set them up for failure in the classroom. Make it an ethos in your classroom by giving them permission to fail. You may find that the only thing more enjoyable … is knowing you prepared them for real world success. 

Review: The Deconstructed Issue-Spotting Exam

Review: The Deconstructed Issue-Spotting Exam

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

Jamie R. Abrams, The Deconstructed Issue-Spotting Exam, 68 J. Legal Educ. 194 (2019).

Professor Jamie Abrams from University of Louisville has recently published an article in the Journal of Legal Education with an innovative technique for exam preparation, formative assessment, and lawyering simulation all through what she calls the “deconstructed exam.”  In her piece, The Deconstructed Issue-Spotting Exam, she uses the exam review opportunity in a large case-method class not only for its formative assessment purposes, but also for facilitating more comprehensive curricular reforms that today’s law schools are implementing—particularly in the area of developing lawyering competencies.

Abrams’ approach begins with the use of a traditional issue-spotting cumulative essay.  Once administered and then reviewed with students for legal analysis and issue-spotting skills, Abrams suggests extending the opportunity for further instruction based off the same fact pattern.  Abrams recommends using the exam to further the student’s ability to redo the exam from a client-centered perspective.   This approach is handled particularly by “invit[ing] students to explain why rules are as they are, to provide context for how a rule developed to be what it is, to highlight whether claims are strong or weak, to put issues in procedural context, and to anticipate client reactions.”  Her article details a step-by-step guideline that lays out how her approach is accomplished.

For those of us who teach large Socratic courses, Abrams’ approach may sound ambitious at the start—and it is!  However, her article is precisely written and her approach is very well calculated.  Overall, her approach takes the large fact patterns that we spend days (or weeks) to write for our students and imbues it with more than just its customary finite purpose in the exam room and for grading.  Rather it repurposes the traditional law school exam from its goals for formative assessments to effectuating larger professional competencies within our students.  Abrams gives us a new thoughtful approach to law school testing that imparts more usefulness for both faculty and students.

Back to Basics: Teaching Constitutional Law through Content Review

Back to Basics: Teaching Constitutional Law through Content Review

By Allison E. Butler  CSULB – College of Business, USC Gould School of Law

Exhibit A: Comparative Chart: U.S. And Italian Constitutional Provisions

Co-Authors: Allison E. Butler, JD and Laura Fabiano in collaboration with Fulbright Award 2019.  Allison E. Butler worked with Laura Fabiano with reference to the Italian/U.S. Comparative Constitutional Law.

  1. Introduction

Instructing constitutional law can be challenging given the broad scope of its content. Notably, the U.S. Constitution not only provides the federal government structure but also provides for numerous enumerated rights and guaranteed personal freedoms. While most instruction in law school is through case law, most students have little idea as to the actual structure and content of this document. This article provides a different approach by requiring students to obtain and assemble a U.S. Constitutional booklet, which is subsequently reviewed in a classroom. This exercise enables learners to recognize and find constitutional citations and provide an overall understanding of the contents of this vital historical document.

  1. The U.S. Constitution
  2. Examining the Booklet

The first requirement for this process is to mandate that students download and assemble a free U.S. Constitutional booklet.[1] One day, preferably in the beginning of the course, should be dedicated to reviewing the relevant constitutional provisions prior to actual case law studies. To provide a background on the subject and to begin the instruction, two optional videos can be viewed 1) British Library’s What is the Magna Carta[2] and 2) the History Channel’s The United States Gets a Constitution.[3] While there are numerous other clips, these links are highly effective in refreshing students’ knowledge and providing international students with a general background on the adoption of the document. This review technique can also be facilitated for a comparative or international law class with the students obtaining two constitutions and comparing the two. For example, see comparative chart of the Italian and U.S. Constitutions, set forth in Exhibit A.

  1. Articles and Amendments

While a review of the applicable provision is subjective, it is necessary to begin with a review of the federal government structure beginning with Article I – Legislative Branch of the Constitution. While discussion on the different legislative branch may be warranted, Section 8 of Article I provides the enumerated rights specifically designated to Congress, which with reference to business law includes, but not limited to, the following:

  • Commerce clause to discuss state powers. [4]
  • Copyright and patent clause to discuss intellectual property.[5]
  • Coinage clause for possible discussion on cryptocurrencies.[6]
  • Creation of inferior courts to discuss the federal court system. [7]

Section 10 of Article I provides for a brief discussion on freedom of contract that invokes examination of this clause as well as the substantive due process clause, including discussion on the Lochner Era, in which the U.S. Supreme Court continuously struck down numerous state statutes.[8]

Thereafter, Article II is discussed with focus on the Executive Powers. The primary objective here is the executive power to appoint “[j]udges of the supreme Court and all other Officers of the United States” with advice and consent of the Senate;[9] however, this section also provides discussion on current topics ranging from State of the Union to impeachment proceedings. Lastly, Article III establishes the Supreme Court and the judges therein. With the establishment of the three branches of government, students are directed to Article VI, Clause 2, discussing the Supremacy Clause of the U.S. Constitution.

Upon establishing the main content of the constitution, the Bill of Rights is examined, starting with the following:

  • Establishment Clause[10]
  • Freedom of Speech[11]
  • Search and Seizure[12]
  • Warrants[13]
  • Due process clause – federal[14]
  • Taking Clause[15]
  • Privacy[16]
  • State Powers[17]

These discussions also include a reference to amendments and how they apply to the Constitution leading to the adoption of the 14th and 15th amendment after the U. S. Civil War. The 14th amendment discusses how the due process clause incorporated many of the bill of rights as applicable to the state government as well as the equal protection clause. The 15th amendment illustrates race suffrage and its application solely to the male population but the adoption of the 19th amendment provides for sex suffrage.  Another provision worth discussing is the 28th Amendment, prohibition, and its relation to the 21st amendment repealing the prohibition of the transportation or importation of intoxicating liquors.  Lastly, discussion of the 26th Amendment provides age suffrage.

After full discussion on the various provisions and applicable case law, the pamphlets can be collected and returned to the students on the day of the exam, which is essentially an “open constitutional exam.” Sample questions can range from what articles establish the Supreme Court to what clauses provide for substantive due process. Moreover, questions can be of multiple-choice, essay, or short answer depending on the mandate of the overall course.

III. Conclusion

This type of constitutional review provides students with a broader perspective of this instrument of government. Learners learn to navigate the pages while observing the language adopted by courts such as “probable cause” or “supremacy clause,” observing that these phrases are nor fabrication of the courts but language of the constitution itself.  This learning technique provides the students with a solid base to begin further examination through case study.

EXHIBIT A

COMPARATIVE CHART: U.S. AND ITALIAN CONSTITUTIONAL PROVISIONS

Constitutional Provision United States Italy
Year 1787 1947
Legislature Article I Parte II – Titolo I – sezioni I e II (artt. 55 -82)
Executive Article II Parte II – Titolo III –Sezione I (artt. 92-96)
Judicial Article III Parte II – Titolo IV Sezioni I e II (artt. 101-113) ;

Judicial Review – Constitutional Court: Parte II, Titolo VI sezione I (artt. 134-137)

Supremacy Clause Article VI Art. 5
Reservation of State or Regional Rights Tenth Amendment Art. 117 ( more in general on regionalism: Parte II Titolo V artt. 114-133)
Freedom of Contract Article I, Section 10; Due Process of Fifth and Fourteenth Amendment Due Process Art. 41
Freedom of Religion First Amendment Art. 7 ; art.19
Freedom of Speech First Amendment Art. 21
Right to Privacy ·        The First Amendment; Third Amendment;

·        Fourth Amendment; Fifth Amendment;

Ninth Amendment.

The right to privacy is most often cited in the Due Process Clause of the 14th Amendment

Artt.13-15
Due Process – Procedure Fifth  Amendment (Federal); Fourteenth  Amendment (State) Artt.24-27;

Artt. 111-113

Due Process – Substantive Fifth Amendment (Federal); Fourteenth Amendment incorporates application to the States of Fundamental Rights Art. 2;

Parte I , Titoli I-II-III-IV (art. 13-54)

Taking Clause Fifth Amendment Artt.42-44
Voting Rights Fifteenth, Nineteenth and Twenty-sixth Amendment require that voting rights cannot be abridged on account of race, color, previous condition of servitude, sex, or age for those above 18. Parte I, Titolo IV (art.48-54)

Copyright © 2019. All rights reserved.

[1] See https://constitutionbooklet.com/ for free download and instructions.

[2] See, https://www.youtube.com/watch?v=7xo4tUMdAMw

[3] See, https://www.youtube.com/watch?v=x1YLoO9sHvI

[4]  Article I, Section 8, Clause 3.

[5] U.S. Const., Article I, Section 8, Clause 8.

[6] U.S. Const., Article I, Section 8, Clause 5.

[7] U.S. Const., Article I, Section 8, Clause 9.

[8]  U.S. Lochner Era wherein development of economic due process (14th and 5th Amendments) [1897-1937]; see also,  Arruňada, Benito and Veneta Andonova, Common Law and Civil Law as Pro-Market Adaptations, 26 Wash. U. J.L. & Pol’y 81 (2008); for recent case law on contract clause see, Sveen v. Melin, 584 U.S. ___, 138 S. Ct., 1815 (2018).

[9] U.S. Const., Article II, Section 2, Clause 2.

[10] U.S. Const., amend. I

[11] Id.

[12] U.S. Const., amend. IV

[13] Id.

[14] U.S. Const., amend. V

[15] Id.

[16] U.S. Const., amends., I, III, IV, IX and X

[17] U.S. Const. amend. X

Recommit to the Profession of Teaching and Helping Your Students Recommit to Their Work

Recommit to the Profession of Teaching and Helping Your Students Recommit to Their Work

By Sandra Simpson, Gonzaga University School of Law

Over the past six months, I have struggled with what some might call a “mid-life-professor crisis.”  As I struggled to keep up with committee work, teaching, writing, applying for promotion, etc., the feeling of being overworked was overwhelming me. I write this post today because I know others struggle with the same feelings.  It makes professors wonder if this is the right place and the right job.  The answer to that question is intensely personal but the way to get to the answer is not very personal.  I took time over the break to look deep into the recesses of my heart and mind asking myself some tough questions: do I make a difference, is this where I want to be, and if so, why?  Here is two words that came to the surface again and again: recommit and privilege.

First of all, I realized I needed to recommit to the science and the art of teaching.  I needed to put teaching first: before scholarship, before committee work, and before other work responsibilities.  We are here to teach students, to perfect that craft, and to dedicate our energy there.  The decision seemed so clear to me at that point.  Teaching is what I love, and I need to focus on it first.  Once I said that out loud and recommitted to that love, my direction seemed so clear: stay with teaching.  I have been able to put it first for the first couple of weeks.  Feel free to hold me accountable as the semester heats up!

Secondly, once I recommitted to my first love (teaching) I realized what a privilege it is to be able to come to work and teach students how to be lawyers.  The last week has been so much more joyful focusing on this privilege.  Some may call this gratitude, but I see gratitude as part of realizing the privilege. We are indeed lucky to do this work.

Lastly, once I saw this and felt it in my heart, I knew I had to share this perspective with my students.  After I told them what a privilege it was to be a lawyer and to be their teacher, we discussed what lawyers do to make a difference in the world.  Some students brought up how helping one person changes the world.  As we started to talk and share, I saw the student’s shoulders start to straighten, and, it seemed, their mood lifted.  I urged the students to think about what is good in their world and to think about what is a privilege in their lives.  This conversation took about 5 minutes and then we continued to learn about grammar and contract drafting.  After class, several students stopped me to say thank you for stopping the “rat race” for just a few minutes which allowed them to breathe and be thankful.  Take some time to recommit yourself, and, if you feel comfortable, share that commitment and gratitude with your students.

Visual Aids for the Law Classroom

Visual Aids for the Law Classroom

By Aaron Caplan, Loyola Law School, Loyola Marymount University

Visual aids are not the most important thing a law teacher does in the classroom.  They can never substitute for well-chosen material, clear organization, thoughtfully chosen in-class activities, being a good explainer or being a good listener.  With that said, good visual aids can help students learn more effectively – and bad visual aids make learning harder.

A series of videos based on a presentation I gave at the AALS New Law Teachers Workshop in June 2019 explores what makes successful visual aids work.  The first segment explores the psychology of multi-media learning, providing a theory for preparing visual aids that complement one’s lesson plan and not detracting from it.  The following segments provide examples of visual aids that I have used with success in various classes, including illustrations, visual renderings of legal texts, visualizations of concepts, and more.

The videos can be reached here:  www.lls.edu/CaplanVisualAids/

Institute for Law Teaching and Learning