Idea of the Month | Institute for Law Teaching and Learning

Forget Waldo – Where’s IRAC?

09Jan By Sandra Simpson

By Alice Burke, The John Marshall Law School

Students new to law school are bombarded with new concepts and sometimes, their accompanying acronyms. None of those acronyms seems to strike quite the same terror as IRAC. For some students, the concept of IRAC is as elusive as Waldo. The fact is, it doesn’t have to be. If students simply know where (and how) to look, IRAC can materialize before their very eyes.

IRAC is not all that new to legal writing. Many law schools were teaching students to organize their analyses using IRAC thirty years ago. Many of those students can now be found sitting on federal and state benches across the country. And guess what? They’re still using IRAC to organize their legal writing. And guess what else? Their judicial writing is readily available to students everywhere in reporters, on electronic databases, and on court websites.

Students who want to see what IRAC looks like need go no farther than the nearest court decision. If it originated within the last twenty years, chances are they will see an example of one of IRAC’s many permutations in action. As a Writing Specialist helping students adapt their existing skills to the new dialect that is legal writing, I use many different approaches to help students understand how to incorporate IRAC into their papers. And as you would expect, we spend many advisory sessions looking at student papers. What you might not expect, however, is that some of my most fruitful advisory sessions have been spent looking closely not at the students’ papers but at the court cases that they are using to support their analysis.

When IRAC remains elusive to students, I invite them to take out one of their controlling cases, and we use that decision to “discover” IRAC. Together, we find where the discussion begins, and identify the global rule statement. We notice whether the court breaks the global rule into discrete elements, or explains away parts of the rule that for one reason or another are not relevant to the issue before it. Then we move through the opinion to the first issue before the court. We note how the court identifies the discrete issue, and segues from there into the governing rules of law. We observe how the writer has narrowed the focus to a single part of the overall issue, and witness how case citations are woven into the paragraph. We notice whether the decision uses multiple paragraphs to discuss the applicable rules and how the court uses the facts of precedent cases to illustrate how the rule works.

Then, we note where the “rule” portion of the discussion gives way to “application.” We pay attention to transition words like “Here,” or “In this case,” that signal this shift, and then note how suddenly we start seeing far fewer italics (indicating decided cases) and far more proper nouns (indicating the parties in the case before the court). We study how the court compares and contrasts the case to previously cited cases before reaching a conclusion on the issue.

If we are lucky, the decision then goes on to consider another element or factor. We can look at how the opinion transitions from one to another and then I ask the student to tell me where the opinion identifies the next issue, outlines the governing rules, applies those rules to the facts before the court, and arrives at a conclusion. Frequently, this provides the breakthrough the student needs to understand how IRAC works (and to convince them that it’s not some crazy thing their professor came up with but that nobody actually uses) and to use it to structure their own analysis. I encourage students to be alert to the presence of IRAC in the many cases they read for their legal writing classes as well as in their doctrinal classes so that they can begin to see its many subtle variations. Short of putting a distinctive red and white striped shirt on it, it is the best way I have found to help students find IRAC.

An Exam Debrief Exercise for Getting Students to Think Like Graders

01DecDecember 4, 2017 By Sandra Simpson

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

Two weeks ago, I finished my midterms in first-year Contracts. Instead of doing the usual exam debrief the next class day, I tried something new that I very admittedly borrowed from Professor Allie Robbins at CUNY Law. Rather than merely walking through the essay problem and explaining the issues and answers, my students graded sample partial exam answers based off the exact same essay problem I gave them on the midterm.

My Contracts midterm this fall covered the major formation issues (governing law, manifestation of mutual assent, and consideration). For this exercise, I wrote up two sample answers addressing only the mutual assent issues (i.e. offer and acceptance). Both sample answers hit the issues and discussed the facts and analysis similarly. On the substance alone, both answers would have likely received the same score for issue spotting. However, Sample Answer A was much better organized and discussed the issues using a very detailed IRAC structure, while Sample Answer B was less well-organized, often failed to follow the IRAC format, and in essence, was a sloppier answer.

Since they had already taken the midterm and we had already discussed the entire essay, they were already familiar with the essay problem and particularly its coverage and analysis. With the two sample answers and grading rubric in front of them, I gave them 10 minutes in class to grade both answers.

My goal was to show them that organization is really important and that an otherwise good answer can lose points can be lost if the grader cannot readily find it. My students were surprised, at first, at how hard it is to grade an answer. My sarcastic response (“Yay, happy holidays to me.”) drew some irreverent laughter. But the more important response was the shift in my students’ perspectives from thinking that the exam was where they illustrated only what they knew about the subject matter to understanding that the exam was also where they had to demonstrate their knowledge in the most effective way—in an organized manner that can better display their mastery of legal reasoning.

When I polled the students for which answer they preferred, the overwhelming choice was Sample Answer A, the more organized, structured answer. Their preferences for Sample Answer A were followed by responses such as, “Answer A is much more effective and easier to read,” and “The writer for Sample Answer B really didn’t sound like a lawyer.”

I told them that format and structure counts on my exam: “So you see how Sample Answer A is likely going to get a higher grade because what I’m also looking for is effective legal reasoning?” I revealed to them that I didn’t think Sample Answer B would fail, but if it wouldn’t have received as high of a grade than Sample Answer A. “And if you’re going to spend all that time and energy on my final talking about the same things, why would you not aim for higher?” Students also noted that following the IRAC format more closely seemed to allow Sample Answer A to craft more precise rule statements and juxtapose law and fact for a more balanced analysis. Sample Answer B, on the other hand, tended to ramble. On law school exams, format and structure does makes a difference. Hopefully, this exercise did get my students to be much more motivated on developing their IRAC and essay organization skills for their fall final, alongside their ability to understand the doctrinal material. Happy holidays to me.

At CUNY Law, Professor Robbins uses this exercise also in bar support to show bar takers why a well-structured and organized answer would make a difference to a bar grader with hundreds of essays to grade and only a few minutes to grade each answer. My variation brings this into the first-year classroom. But in both settings, the exercise hopefully tries to convey that on exams, it’s not just what you say, but also how you say it that matters.

Random Thoughts About Resistance To Active Learning

07Nov By Sandra Simpson

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

Teaching Lawyerly Grit

26JunJune 26, 2017 By Sandra Simpson

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.

Steering Students Back to the Rule

16NovNovember 16, 2016 By Sandra Simpson

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

It’s undeniable to me that each incoming class of 1Ls that I’ve ever taught has always exhibited a collective personality of its own from the prior one. Despite this, I’m also amused by a commonality that each first-year Contracts class has shared with me—at least in the first semester of law school. Whether it is because I teach in Massachusetts (where the politics can sometimes be loud, colorful, and brash) or whether it is just that law students—and lawyers, by extension—are intrinsically a breed of vocally assertive people, my first-year students always enter my class with a fervor to argue that they are legally “right” about a contract dispute, even though they are untrained and usually have little background in the subject area. They like to reach for their gut instincts based on the facts they read in cases or hypos I give them. They don’t always tend to realize that they’re to learn the law.

On the one hand, it’s great that they have this built-in passion for opinion and advocacy. It shows me that they have energy and appetite for lawyering. But if not soon reinforced by a method of legal reasoning (perhaps even à la “thinking like a lawyer”), this passion can also lead to bad habits and imprecise, undisciplined lawyering.

My lesson here is about how to train and direct students early on to remember that when they are faced with a legal dispute or hypothetical, their first strategy is to not go to their gut instincts and raw passion, but to go strategically to the law. Thus, when they are given a fact pattern, they are not arguing why one side should prevail based on their own reading of facts or their own sense of justice or fairness, but that they first examine what rule of law might be pertinent for grafting onto this particular set of facts in order to come to a lawyerly conclusion. This is a basic skill of legal reasoning that can be obscured by the excitement of starting law school, the mysterious (and sometimes confusing) nature of Socratic lectures, and the intensity of the first-year curriculum. But by the end of the first year, if students don’t realize in a disciplined way that they always should go back to the rules, then their law courses have done them a disservice.

One way in which I have addressed and developed this habit of “going back to the rules” is by often introducing a new doctrinal unit with a “master” fact pattern hypothetical I can use to demonstrate a classic scenario that involves that new doctrine. The reason I call this hypo a “master” fact pattern is because I will give it to students to try solve the problem when they don’t have the doctrinal rules yet, then use the same fact pattern to introduce and teach them the doctrine, and lastly re-visit the fact pattern as we get into the cases and pose variations on the hypo that illustrates the nuances in the doctrine. My hope is multi-faceted: First, without knowing the particular rules of law, my students first see the factual hypothetical and anticipate a resolution based on their gut reactions. Then as they are taught doctrine in tandem with the hypothetical, they now have an active moment of discovery where the particular legal rules and doctrine reveal how the hypothetical might be resolved in a lawyerly way. It’s also a good moment to emphasize the utility of the law and to redirect their instincts to reach for the law first, instead of resorting to arguing facts or fairness. It can also be a good place to critique the law and bring in policy or demonstrate lawyerly analysis. Lastly, now that they know the rules in tandem with a factual scenario, the variations on the fact pattern continue to reinforce their sense that they should always be thinking, “What’s the rule or doctrine?” at every step of the way.

One example of this is when I teach the unit on U.C.C. 2-207 Battle of the Forms to my students. The unit is sequenced after we’ve gone through the mirror image rule for contractual acceptances. Before unleashing the U.C.C. provision on the students, I start with an in-class hypo that involves a sale of goods between a wholesaler supplier and a product manufacturer. Despite firm and identical agreement of the type of goods, price, and quantity, the problem involves differences in the boilerplate fine print on the back of the parties’ respective documents. Students will know that under the classic mirror image rule there’s no contract technically. But if I tell them that issues like this occur in business transactions countless times every day, involving tens of millions of dollars, they are usually perturbed and left trying to figure out what do we do when these parties incur liabilities, such as a product defect. What do we do?

I like to stir up controversy because it usually makes them pay attention. That’s when I tell them that as lawyers we have to go back to the law, and I then introduce 2-207 under the U.C.C., whose purpose, among others, is to resolve issues such as discrepant fine terms. Then, we work through the fact pattern. What I’ve essentially done is to first give my students a problem without the law, then incite their outrage or passion or inquisitiveness, and at last systematically direct them to reach for a legal solution by going to the rules rather than analyzing the facts first. Use your brain, folks, particularly your left brain.

This works well as an assessment tool as well. In most courses I teach, I usually begin with the first day with a fact pattern that runs through from A-to-Z all of the major issues of the subject area. I make my students answer the question even though they don’t know the law yet. I want them to feel inadequate without the rules of law that would otherwise help them investigate and problem-solve like lawyers. Then gradually as we move through the semester, I will often find appropriate moments later, perhaps after we’ve learned a few units, to pull out that same fact pattern and ask them again to examine the problem and see how much better they can resolve the hypo now that they have had some law. At the end of the semester, we usually look through the same problem one final time and hopefully students will have a good assessment tool for gauging how much doctrine they know now to analyze the question as well as a fundamental understanding that a basic strategy in legal reasoning is to reach for the law first.