Sunday, December 9, 2018
In my last post, I took up the issue of “blanket policies forbidding supplements.” I argued that such blanket policies squander an opportunity to influence students and that they re-entrench socio-economic hierarchies. In this post, I will continue to contend that such policies are generally unwise, but I will focus now on arguments arising out of the science of learning.
- Killing Metacognition. If Donald Rumsfeld taught us just one thing it is that the “unknown unknowns” are the biggest problems. That is, the biggest problems are the ones we do not even know that we do not know. This is true in learning the law as well. After underperforming on an exam, a student might say “I knew that course backwards and forwards.” The problem, though, is that she only knew what she knew … she was blissfully unaware of the things she did not even know she did not know. How does a student fix this problem when she does not even know what she is missing?
The answer is metacognition. Roughly speaking, metacognition the practice of skeptically monitoring one’s own knowledge, learning, and progress. That skepticism – always pushing back on that “illusion of mastery” – compels the student to explore her learning assumptions and root out the things she did not even know she did not know. If, for instance, she takes a practice problem and gets it wrong due to a doctrinal misunderstanding, she just discovered a misunderstanding that otherwise might have hurt her performance on an exam.
Students need extrinsic sources to support metacognition. If the knowledge they have gained from the traditional sources has left them with (unknown) learning gaps, it is patently illogical to guide them back to those same sources. By imposing a blanket policy against the tools of metacognition (tools like Joe Glannon’s questions in his fantastic E&E series), the professor has just undercut one of the most powerful tools of learning.
But, what about the problem of conflicting sources? Each professor likely has certain nuances that differ from the sea of supplements out there. I would rebut this argument on two grounds. First, this is why we should lead students towards “hornbooks” and not “supplements.” Focusing on hornbooks, i.e., sources written by professors who are experts in their fields, reduces the chance that multiple sources will lead to doctrinal discrepancies. I also lead students away from “supplements,” sources not written by professors, because I have observed doctrinal errors or difference in nuance in these sources.
Second, I think it is key not to let the perfect be the enemy of the very, very, very good. Although slight distinctions might exist between one professor and another, it is entirely rational to believe that the law in required courses is settled to the degree that any doctrinal distinctions between faculty and quality hornbooks will be limited in number and de minimus in scope. The benefits of metacognition are so great that we should not undermine metacognitive practice just because of slight differences in nuance. See generally Preston, et al., Teaching 'Thinking Like a Lawyer': Metacognition and Law Students, 2014 BYU L. Rev. 1053 (2015) (noting the importance of teaching law students the skills of metacognition).
Banning outside sources undermines the crucial skill of metacognition and, in turn, leaves students without these important skills as they become practitioners. They become dependent on the “sage on the stage,” which after law school takes the form of the law firm partner who has little time to lecture to a neophyte lawyer who lacks the skills to find answers herself.
In my next post, I will continue to line up arguments that push back on the practice of banning outside sources.