Thursday, February 25, 2021
This week the Association for Academic Support Educators ("AASE") published Best Practices for Online Bar Exam Administration. AASE President, DeShun Harris, says that the best practices advocate for "procedures that ensure a fairer test for online test takers." The organization, established in 2014, urges state high courts and bar examiners to adopt these procedures. The AASE Bar Advocacy Chair, Marsha Griggs, says "many of the best practices that we identified are things that bar examiners are already doing." Yolonda Sewell, Vice President for Diversity, adds that in addition to the great strides that bar examiners have made in deploying an online exam, we seek to make sure that the online administration does not unfairly disadvantage any bar applicant on the basis of skin tone, race, gender orientation, biophysical conditions, disability, need for test accommodations, or socio-economic resources. The Best Practices are aimed to level the playing field, both among applicants of varied backgrounds, and between the online and in-person versions of the exam."
One of several effects of the COVID-19 pandemic, was that bar examiners and bar applicants questioned the wisdom and feasibility of administering in-person exams in the traditional large group format. In response to COVID-19 limitations, the first online bar examinations in the United States were administered between July and October 2020.
With but a few exceptions, the online exams were remotely proctored using artificial intelligence technology provided by a commercial vendor. As the exam dates approached many issues surfaced surrounding the use of facial recognition software and remote proctoring. One prominent issue was the number of complaints voiced from students who are people of color, asserting that the software did not recognize them. During and after the exam, other complaints sounded, ranging from data breaches, and poor technical support, to "flagging" hundreds or thousands of applicants for alleged cheating or "testing irregularities." At the extreme, some applicants reported having to sit in their own waste—as the exam instructions warned applicants about being out of view of the camera except during scheduled breaks—for fear of failing the exam. Additionally, there were reported issues with the technical delivery, submission, and scoring of the Multistate Performance Test, and jurisdictional scoring errors that wrongly identified applicants who earned passing scores as exam failures, and falsely notifying others who failed the exam that they had passed.
AASE lauds the efforts of bar examiners at the local and national levels for their flexibility and willingness to provide options for remote administration. While we defer to the proven expertise of the test-makers in determining matters related to exam content, scoring, accommodations and character and fitness eligibility, we add our collective expertise in assessment delivery, performance application, and enhancement pedagogies for non-traditional test takers. We recognize that online bar exam delivery will outlive the pandemic and current circumstances. We also believe all who play roles in the process of creating and delivering a bar exam, want the exam to be fair and effective. In light of those dual goals, we think the time is ripe for adoption of additional policies that are more than performative gestures toward a more diverse legal profession.
(Association of Academic Support Educators)
Tuesday, February 9, 2021
Here it is, Tuesday evening, and I am finally settling down to write another blogfest – this, like many weeks, despite having specifically placed this high enough up on my to-do list that I genuinely expected to be starting in the early afternoon. The problem – one I am sure we are all familiar with – is not the writing, but all the other things I had planned to finish beforehand, which took far longer than I had originally estimated they would. Fortunately, such difficulties are illustrative of this week’s topic of discussion – the planning fallacy and how to counteract it.
The planning fallacy is a simple psychological phenomenon: human beings’ predictions about the time needed to complete a future task are usually significant underestimations. In some cases, wild underestimations: for example, when construction began on the Sydney Opera House in 1959, it was expected to be completed by 1963, but the site was not actually finished until 1973. Daniel Kahneman and his partner Amos Tversky were the first to describe this phenomenon, more than forty years ago, and Kahneman writes about it in his wonderful book, Thinking, Fast and Slow. He explains it as a kind of optimism bias, a tendency of people to adopt the rosiest scenarios as they imagine how a task will proceed. Later scholars added other nuances to this explanation. One reason for this apparent optimism bias, for example, might be the self-serving human tendency, when considering similar past situations, to take personal credit for all the things that went right (and thus assume they will go right again in the future), but to attribute errors and delays to outside forces that they presume will not occur again.1 Nassem Taleb, in his book Antifragile, suggests it may not only be a psychological phenomenon, but also a consequence of a natural asymmetry: whenever circumstances or events cause a deviation from a well-laid-out plan, chances are far greater that the disruption will lead to delay than to expedition, so that the sum total of all deviations would always be expected to be postponement.
How many times have we seen the planning fallacy in action amongst our students? Just in the past month, I have met with returning students, vowing to perform better in this coming spring semester, who base this determination on unaccountably confident projections of all the steps they will complete to do so. I have worked with February bar examinees, noses to the grindstone, who despite their genuine efforts are finding themselves slipping behind their intended schedules. Not every student suffers from this bias, of course, and many of those who experience the bias don't actually suffer for it, either because they start with ambitious goals that leave plenty of leeway or because they find the extra time and energy to offset their underestimated projections. Still, every year brings a significant crop of students who do not perform as well as they might have, because they seriously underestimate how long it will take them to complete an essay test question, compile a useful outline, learn the rules governing a specific legal topic, research, draft, and edit a significant writing assignment, or attend to the demands of student organizations.
Fortunately, the psychologists and scientists who have studied the planning fallacy have suggested a few strategies that can be used to counteract it, and these strategies are easily adoptable -- or correspond to techniques already used -- by academic support professionals. In his book, Kahneman suggests the use of reference class forecasting -- that is, making predictions of the time needed to complete a task based not on a person's (or an entity's) internal sense of how long it should take them, but on observations of actual outcomes in prior similar situations. In other words, if I were going to build an opera house, I might start off by assuming I could get it done in a few years, but if I considered how long it took to build the one in Sydney (and of course in other locations), I should understand that it is likely to take more than a decade. Many of us do something at least adjacent to this with our students already -- providing them with estimates about how long they should expect to take to complete a case brief, for example, or to study for the MPRE -- but the idea of reference class forecasting suggests that it might be even more powerful to refer specifically to prior performances by other students. Instead of saying, "You should devote at least 24 hours," it might be more effective to say, "Last year, every student who devoted 4 hours a day, every Saturday and Sunday, for three weeks, completed this successfully."
Another suggestion is the use of the segmentation effect. It has been observed that a person's estimate of the total time it will take to complete a task will be longer -- and thus likely more accurate -- if they are asked to segment the task (break the task down into a number of sub-tasks), to estimate the time it will take to complete each sub-task, and then to add all those times together to come up with the total time.2 However, there is a cognitive cost to being mindful and particular enough to break complex tasks down into numerous sub-tasks, and, without help, this kind of approach may be hard to learn and sustain. Fortunately, this is just the kind of help we can give, especially to inexperienced students who may not be able to envision how a long-term task can be broken down, or even what all the steps involved might be. By providing students with a framework of what to expect, and encouraging them to think realistically about what it will take to build each part of that framework, we can help them to stay on track, or at least in the general vicinity of the track, by using the segmentation effect.
Finally, another tool that has been suggested to combat the planning fallacy is the implementation intention, a term coined by Peter Gollwitzer for a particular model of thinking about future actions. Encouraging people to think specifically about when, where, and how they will act towards their goal tends to make them more likely to move forward steadily, and in a timely way, towards them. For example, people who received a telephone call in which someone asked them what time they planned to vote, from where they would be heading to the polling place, and what they would be doing just before they left to vote -- all questions designed to prompt them to think about when, where, and how they would vote -- were more likely to vote than those who did not receive the phone call.3 The mental IF-->THEN statement (as in, "If I am aiming to take a practice exam, then I should get a copy of an old exam from the library on Friday") is the implementation intention that moves people apace towards their goals. This, too, is something that academic support professionals do, or can do. By querying students about the specifics of how they expect to achieve their long-term goals, we can induce them to map out their plans in advance, changing vague ambitions about what they would like to achieve into articulable steps (the implementation intentions) that they can follow methodically to their desired ends within the time they have available.
It is a natural human tendency to overestimate what can be done in a given period of time. By helping our students account for this tendency, even if we cannot help them complete everything, we can at least help them get in a position where they've done enough to succeed.
1(1995) It's About Time: Optimistic Predictions in Work and Love, European Review of Social Psychology, 6:1, 1-32,
Sunday, January 31, 2021
Some of you are getting your Fall grades, and for some of you this is the first time in getting law school grades. So let me assure you of something – your grades do not define you. If your grades make you happy, you should be proud. But they don’t define you. If your grades were not what you had hoped for, your grades do not define you. Your actions, the way you treat classmates, the cases you take on, the way you treat future clients and future colleagues – all of these things will define you. But your grades are not on that list.
Now, having said that, I’m well aware that grades are important, they help you get on things like law review, obtain clerkships and obtain your first jobs. So yes, they are important. But no, they do not define you.
So, if your grades are less than stellar, or not what you were hoping, pick yourself up and learn from your mistakes. The key is to not dwell on the mistakes, but learn from them. What can you do in the Spring to bring those grades up? Or, if you are happy with the grades, ensure that Spring grades are just as good? Try the following:
- Meet with your professors and review your exams. Even if you did fairly well, it’s worth looking over your exams with your professors. Talk about what you did well, and where you can improve. Many students focus on the fact that they correctly issue spotted, or came to the “correct” conclusion, when in reality, most professors are also looking at things like organization, and most importantly, how you came to the conclusions that you did!
Don’t be afraid to reach out. I talk to many students who are embarrassed, or a bit nervous. Your professors want you to improve and succeed. It is part of their job to review these exams with you, so please approach them!
A good starting point is this CALI lesson: How to Learn from Exams, by Melissa A Hale
- Take an honest look at this past semester, and self assess. This is incredibly important for your law school career, but also for your legal career. Learning to self assess performance is an invaluable skill that we all need.
- Did you read and brief all cases?
- How much time did you spend studying for each class?
- Did you meet with your professors during the semester, and talk about things you struggled to understand?
- Did you complete practice exams? If so, how many?
- Did you start outlining early or late?
Be honest with yourself in all of these questions. In addition ,think about other things that might have been happening, especially since we are currently in a pandemic:
- How was your mental health?
- Do you have test taking anxiety?
- Did you have a good place to study?
- If you are easily distracted, did you find ways to deal with that anxiety?
- Were there any life events that interfered with studying? Such as a break up, a death in the family, other personal turmoil? A health concern or health issue?
Again, this is a self reflection, so be completely honest. There is a CALI lessons that helps lead you through these issues, written by Renee Nicole Allen - Semester Self Assessment and Reflection - https://www.cali.org/lesson/18326
In addition, try the following:
Grit, Growth, and Why it matters, by Melissa A. Hale
Assessing Your Own Work, by Allie Robbins
Above all else, remember that while grades might open up some opportunities for some, even a few years into the future, they will not matter. And also remember, you can always learn and grow – whether you want to improve on something you did well, or learn from mistakes.
Tuesday, December 1, 2020
Now that Thanksgiving is past, most law students have started or are about to start preparing for final exams. With an entire semester of material to master, many try to prioritize what to spend their time on. Some concepts and rules, introduced early in the course, may feel tediously familiar through repetition, and students may feel they can afford not to spend time on them now, especially if they tested successfully on those points on the midterm. Experimental evidence suggests, however, that time could still be well spent, even on familiar material, if it is spent the right way.
Jeffrey D. Karpicke and Henry L. Roediger III, psychologists at Washington University, ran a series of tests of memory recall of lists of words, examining the effects of two distinct tasks that contribute to learning: studying and testing.1 Their first set of tests, similar to other experiments that had been done over the previous 40 years, sought to determine what combination of studying (in this case, visually reviewing lists of words to be memorized) and testing (writing down recalled words under time pressure) would produce the best learning. Some subjects were told to study a list of words, then were tested on their recall, then given another opportunity to study, and finally given one last test. These were identified as STST subjects. Other subjects were given disproportionate opportunities to study, or to test: either three study periods and one test (SSST) or one study period followed by three tests (STTT). The scientists then compared recall performance for different groups of subjects after the final test. Hopefully not surprising to either law students or Academic Success professionals, the subjects in the STST group had the best recall in the end. As other psychologists have observed, a mix of studying and testing produces the best learning.
What was new and interesting was the second phase of their testing, in which they variations on the STST pattern on new groups of subjects, and tested recall not just at the end of the four-step pattern, but also on an extra test given one week later. In addition to testing some volunteers using the original STST method (study, test, study, test), and to tweaking the order (but not the ratio) by giving some volunteers two study sessions followed by two test sessions (SSTT), the scientists tested a third set of volunteers by starting with the same size set of words in the first two steps (study, test), but then removing from the word list all the words successfully recalled at that point, and then asking the volunteers to study and then test using only the words not recalled in the first test. Using the reduced list of words was identified with a subscript "N", so this set of examinees was called "STSNTN". [This method is familiar to many who study (or recommend studying) with flash cards by removing from the deck each card you recall correctly, so that every new pass through the deck, you are only studying and testing yourself on the information you failed to recall the last time.] Finally, a fourth set of volunteers similarly started with a complete list of words, which they studied and were tested upon, and then spent a second study period studying only the reduced list (that is, again, they did not have to study any words they had already learned). However, on their second test, all of the words from the initial list were tested, even those that were not studied a second time. Thus, this was the "STSNT" group.
What Karpicke and Roediger discovered this time was that the STSNTN group clearly had the best recall after the second test -- in fact, among the fifteen subjects tested in this group, there was only a single instance of a word not being recalled. In other words, this group had the "fastest initial learning" of all, apparently because they focused both their studying and their testing on material that they had not previously learned. They learned the material more quickly than either group that studied and tested on all the words twice (STST and SSTT) or the group that studied only material that it had not previously learned, but tested on all the words twice (STSNT). And this has an intuitive appeal to those of us who have used flash cards -- if you focus on your gaps, you can overcome them more quickly, right?
However, the scientists also tested all the subjects one week later, asking them to recall all the words from their initial lists. And on this later test of long-term memory, the STSNTN group performed the worst. One might simply attribute this to those subjects having spent less total time and mental energy on the learning task, since they had a reduced word list for the second half of their learning. If that were the case, though, you would expect that the best long-term results would have been seen in the STST group, which studied and tested on full word lists twice. In fact, the long-term performance of the STSNT group was as good as, and in some cases better than, the performance of the STST group. This suggests that it does not matter so much whether you spend time studying material you already know, as long as make sure to continue to test yourself on that material along with the material you are continuing to learn.
So over the next few weeks, as our students work somewhere between diligently and frantically to prepare themselves for their final exams, it seems that the most efficient and effective use of their time will be to focus their study time (reviewing, rote memorization, consulting supplementary material, asking TAs and professors questions) on the things they are unsure of, but to continue to test themselves on everything in the syllabus.
1Jeffrey D. Karpicke & Henry L. Roediger III, Repeated retrieval during learning is the key to long-term retention, Journal of Memory and Language 57 (2007) 151-162.
Wednesday, November 25, 2020
To the Law Students, especially first years:
It's ok to take a break. I promise. I wanted to give you some great advice for exams, and since Victoria has written about so many tips for prepping for and writing the exams, my advice is to relax.
I know, I know, you have so much to do. But your brain really DOES retain information better if you give yourself breaks. I'm not suggesting that you don't do any work between now and Monday, but I am suggesting that you pace yourself, and do a few fun things for yourself as well. Netflix does have some great holiday movies coming out!
If you are a first year, it's also important to put things in perspective. Yes, grades are important, we can't get around that issue. But so is your mental and physical health. It's tempting to put so much pressure on yourself, and you need to realize that as long as you are doing your best, that's all we can ask of you.
Also, don't be afraid to ask for help. From your professors. From your Academic Support people. From a Dean of Students. We all want to see you succeed, and we will do what we can to make that happen. If you don't know how to ask for help, that's ok too. It's a good idea to start with someone like your Academic Support person, or your Dean of Students. Literally go in and say "I'm having a hard time, and I don't know how to ask for help." We will help you! Promise!
And speaking of help, if you are entitled to non standard testing accommodations, and especially if you have used them in other situations, please reach out and ask for them! For some schools, it might be late in the process, but it can't hurt to at least see what's possible.
Finally, practice! Don't go into your exams having never practiced one. The more practice exams you do, the better you will feel, and it WILL be reflected in your grades.
To my Academic Support Colleagues:
We need to take this advice as well! We are so good at advising our students on how to take care of their mental health, how important it is to take time for breaks, and to do things for themselves. But we don't always take our own advice. Hypocrites, the lot of us. The AASE programming board put on a fantastic workshop about how we should be helping ourselves, and each other, so take this as an important reminder. Especially, if you are like me, your list of things that must get done this weekend is a mile long. I'm going to try to take my own advice and do the best I can, while also spending some time with my husband, and maybe watching a Christmas movie or two! I hope all of you do the same.
Finally, I've been doing a month of gratitude. Each day, on facebook, I note one thing I'm grateful for. I started doing this a few years ago, as it is a really good way to boost serotonin and put things in perspective. This year I felt it was especially important, since this year has not been one of the best. So, I want all of you to know that I'm incredibly grateful for this community, and I'm thankful for each of you. Your wisdom and expertise, your friendship and support.
Happy Thanksgiving To All!
Monday, November 23, 2020
Continuing last week’s post, students looking to develop and/or refine their exam-taking plan of attack may want to consider the following:
- Reading and dissecting the fact pattern. Once you have selected a question, begin by reading the prompt closely. If you know what the “ask” is upfront, you can read with more intention. You also avoid the surprise of reading the fact pattern, reaching the prompt, and having to re-read the fact pattern again because the prompt asks something you did not expect. Next, read the fact pattern carefully. As you read, question everything! There are not a lot of “extra” facts in a law school fact pattern so ask yourself what your professor wanted you to take away from each sentence. Are the facts triggering an issue? Are they relevant to your analysis of an issue? Are they relevant to a counterargument? Does the framing of the facts create an ambiguity ripe for analysis? Remember, if an issue is triggered by the facts, you are expected to analyze it in your response. Pay special attention to names, dates, dollar amounts, and quoted/excerpted language. If your professor took the time to give someone a name, that name should probably appear somewhere in your answer. If your professor gives you a specific date or dollar amount, such details might have legal significance (e.g., statutes of limitation, timing for contract formation, statutory period for adverse possession, time to serve a responsive pleading, amount in controversy requirement, applicability of the statute of frauds for goods transactions). Finally, if your professor takes the time to tell you exactly what something or someone said, there is likely a reason why.
- Tracking issues. The facts will trigger multiple issues in each exam question so your attack plan should include a method of keeping track of the issues that you spot (e.g., by numbering, creating an issue list in the margins). As a rule of thumb, you should plan to spend roughly 15 minutes per hour that is suggested on your pre-write phase: reading, issue spotting, and “outlining” your answer (i.e. ordering the issues and creating an exam structure). Do not skimp on this time. Professors can tell when students do not outline their answers because such responses are often poorly organized. The exam-taking experience is also much more frenetic for the student.
- Tracking facts. Consider how you might create visual cues to identify the specific facts that are relevant to each issue you spot. You could use a color-coding method, numbering method, symbol method, etc. to identify the facts from the fact pattern that are relevant to your analysis of each issue. Do not overcomplicate this process—choose a method that is efficient and functional. Incorporating a method for tracking facts can be an especially helpful practice when you encounter a long fact pattern because it can reduce the amount of time you spend re-reading the fact pattern in search of facts relevant to your analysis.
- Ordering issues. The order in which issues appear in a fact pattern probably will not be the same order that makes the most sense, structurally, for your analyses to appear in your answer. Consequently, your plan of attack should include a step for ordering the issues you spot. Keep in mind any directives your professor gives you in the prompt about ordering (e.g., beginning with the strongest claim, analyze all claims Tanya can bring against Sasha). If you have a broad prompt that contains no directives about how to order issues (e.g., analyze all potential claims), then the relationships among or chronology of concepts can help with ordering.
- Creating an answer skeleton. Once you have ordered the issues you spotted, create headings in your exam answer. Consider whether each issue you spotted will need its own heading and whether particular issues should be grouped together under one heading. Keep your headings short and sweet—they need not be in complete sentences.
- Fleshing out your answer skeleton. Before you begin adding the meat to the bones of your answer skeleton, consider the order in which you fill in your answer skeleton. Though it may make sense, structurally, for issues to be arranged in a particular order, you should analyze issues from biggest/most obvious to smallest/least obvious. The more obvious an issue is, the higher the likelihood that your professor expects most—if not all—students to spot and analyze the issue in their answers. The more time and space in the fact pattern your professor devotes to articulating facts relevant to the analysis of a specific issue, the more there is to unpack and analyze (and thus, the bigger the issue).
While there is no magic blueprint for creating an effective plan of attack, these points will help students develop an effective exam strategy. The more a student practices and works to refine their attack plan, the more poised and prepared that student will be when exam day arrives. Students may not have control over what facts they will encounter on the exam or how their professors will test them on a given issue, but they do have control over their overall preparedness for the exam and development of a system for taking the exam. So, to students I say: focus on that which is within your control.
(Victoria McCoy Dunkley)
Thursday, November 19, 2020
The best way to prepare for final exams is to work through lots of practice exams. That's because we learn best through the experience of testing ourselves. So here's a link, organized by subject matter, with past bar exam essays (and answer materials). You can freely share these exam materials free-of-charge with your students as they prepare for their final exams, courtesy of the Colorado Supreme Court: https://www.law.du.edu/academics/academic-achievement-program#colorado-exam-essays
Questions Arranged by Subject
- Administrative Law
- Civil Procedure
- Constitutional Law
- Criminal Law
- Criminal Procedure
- Family Law
- UCC Article 2 – Sales
- UCC Article 3 – Commercial Paper
- UCC Article 9 – Secured Transactions
- Wills and Trusts
Monday, November 16, 2020
When preparing for law school exams, law students frequently develop a framework for analyzing particular issues they may encounter on an exam. They also often plan how to use their outline, casebook, and rulebook during open-book exams. Indeed, many of us have seen (perhaps even created): elaborate flowcharts for a choice of law or battle of the forms analysis; lists of steps/questions to guide a personal jurisdiction, equal protection, or parol evidence rule analysis; and mind maps for navigating negligence claims. We have seen casebooks and rulebooks bursting with colorful tabbies, and outlines complete with tabs, indices, and tables of contents.
An oft-overlooked aspect of exam preparation, however, is a broader strategy for how to take the exam. Where is the checklist of steps students will take to navigate the exam? What will they do when the exam clock begins ticking? Students who develop, practice, and refine a plan of attack build exam-taking muscle memory that pays dividends on exam day. Quieted is the sense of panic and amplified is the sense of know-how.
As with so many things, there is no singular “right” way to develop a successful plan of attack and a student’s plan may not look the same for each class. However, students looking to develop and/or refine their exam-taking plan of attack may want to consider the following:
- Types of Assessments. Consider whether your exam will consist of multiple-choice questions, essay questions, short answer questions, etc. If you have a mix of multiple-choice questions and essays, consider working through the multiple-choice section first. There is typically more unpacking to do in a law school essay than you can possibly complete in the time allotted. If you begin with the essays (rather than the multiple-choice), you run the risk of exceeding your allotted time for essays and, as a result, not having adequate time to carefully work through the multiple-choice questions. If you do not know what types of assessments will be included on each of your exams, ASK. ASK NOW. If your final exam has a multiple-choice component, also ask about the number of questions and suggested time allocation in order to get a sense of the pacing. Work toward achieving that pace via practice and be sure that your plan of attack accounts for the multiple-choice component of your exam.
- Choosing where to begin. It is likely that you will encounter more than one fact pattern on your final exam, so your plan of attack should include a strategy for choosing where to begin. You should not plan to automatically proceed in the order the questions are presented. In other words, you do not have to do Question 1 first simply because it’s labeled “Question 1.” Instead, get a sense of the exam by skimming each fact pattern, noting the time suggested for each question. In choosing where to begin, adopt a methodology that best suits you. For students who prefer to ease into the exam and build confidence as they go, an uphill approach might be a good fit. Those students would begin by answering the question they perceive to be “easier” and work their way up to the harder questions. For students who prefer to get the “hard” stuff out of the way first, when they are most alert and there is a low likelihood of exam fatigue, then a downhill approach might be a better fit. Those students would begin by answering the question they perceive to be “harder” (or, perhaps, more rigorous because it has the longest suggested time) and work their way down to the easier questions.
(Victoria McCoy Dunkley)
Thursday, October 1, 2020
I had a chance to spend a bit of today on the hiking trails. The forests are alive, the colors vibrant, as the winds tickle the aspen trees with the cooling approach of autumn skies.
Despite the majesty of the landscape, I spent much of the time out-of-breathe, which gave me a chance to pause. It was in the moments of rest when I saw much more than as I hiked, as my senses took in the environs, with my ears perked up with every little rustle in the leaves. It seemed as if everywhere I turned there was life on the move preparing for winter's homecoming. I was amazed, though, that the chipmunks, birds, and squirrels didn't seem to rush about their business. Instead, the animals of the forest seemed to work steadily but methodically, unhurried, as they prepared their stores of nuts and harvest foods for the winter darkness.
To my surprise, there might be something that we can learn about learning from observations of the forest animals.
According to a recent research article, the fast-paced speed of typing might not be as beneficial as the slower-paced steadiness of handwriting in enhancing learning and memory. As stated by one of the authors Prof. Van Der Meer:
"The use of pen and paper gives the brain more 'hooks' to hang your memories on. Writing by hand creates much more activity in the sensorimotor parts of the brain. A lot of senses are activated by pressing the pen on paper, seeing the letters you write and hearing the sound you make while writing. These sense experiences create contact between different parts of the brain and open the brain up for learning. We both learn better and remember better." https://medicalxpress.com/news/2020-10-kids-smarter.html.
Practically speaking, Prof. Van Der Meer suggests writing essays via typing (i.e., exam answers) but taking notes via handwriting:
"The intricate hand movements and the shaping of letters are beneficial in several ways. If you use a keyboard, you use the same movement for each letter. Writing by hand requires control of your fine motor skills and senses. It's important to put the brain in a learning state as often as possible. I would use a keyboard to write an essay, but I'd take notes by hand during a lecture." Id.
For more information: Eva Ose Askvik et al., The Importance of Cursive Handwriting Over Typewriting for Learning in the Classroom: A High-Density EEG Study of 12-Year-Old Children and Young Adults, Frontiers in Psychology (2020). DOI: 10.3389/fpsyg.2020.01810
Thursday, September 10, 2020
First Year Law Students:
It's not too early (or too late) to start creating your own personal handy-dandy study tools.
But, you ask, how?
Well, here's a suggestion for creating your study tools from scratch in just 6 easy steps!
But first, let's lay the groundwork.
Why should you create a study tool especially with so many other tasks at hand that demand your attention in law school?
There are at least two reasons.
First, the process of creating your own study tool creates a sort of "mental harness" for your thoughts. It serves to bring you back to the big picture of what you have been studying the past few weeks or so. And, that's important because your final exams are going to ask you to ponder through and problem-solve hypothetical legal problems based on the readings, conversations, and your own post-class thoughts that you can bring to bear on the subject.
Second, the process of creating your own study tool develops your abilities to synthesize, analogize, and solve problems….skills that YOU will be demonstrating on your final exams (and in your future practice of law too). In essence, your study tools are an organized collection of pre-written, organized answers in preparation for tackling the hypothetical problems that your professor might ask on your final exam.
So, let's set out the 6 steps:
1. Grab Your Personal Study Tool Kit Support Team!
That means surrounding yourself with your casebook, your class syllabus, and your class notes. They are your "team members" to work with you to help you create your own personal study tool. Here's a tip: Pay particular attention to the topics in the table of contents and your syllabus. The casebook authors and your professors are giving you an organizational tool that you can use to build your own study tool. And, in a pinch, which I have often found myself in, I make a copy of the table of contents, blow it up a bit, and then annotate it with the steps below. Voila!
2. Create the Big Picture Skeleton for Your Study Tool!
That's right. It might look like a skeleton. Not pretty at all. That's okay. Remember, it's in the process of creating your study tool that leads to learning. So, relax and enjoy the mess. My outlines were always, well, miserable, at least from the point of view of others. But, because I created them, they were just perfect for my own personal use. Here's a tip: Use the table of contents and class syllabus to insert the big picture topics and sub-topics into your study tool.
3. Insert the Rules!
Be bold. Be daring. Be adventuresome. If you see something that looks like a rule, whether from a statute or from a common law principle, for example, such as "all contracts require an offer, acceptance, and consideration," just put it into your study tool. Bravo!
4. Break-up the Rules into Elements (i.e., Sections).
Most rules have multiple-parts. So, for example, using the rule stated above for the three requirements to create a contract, there are three (3) requirements! (1) Offer; (2) Acceptance; and, (3) Consideration. Over the course of the term, you will have read plenty of cases about each of those three requirements, so give the requirements "breathing room" by giving each requirement its own "holding" place in your study tool or outlines.
5. Insert Case Blurbs, Hypos, and Public Policy Reasons!
Within each section for a legal element or requirement, make a brief insertion of the cases, then next the hypothetical problems that were posed in your classes, and finally, any public policy reasons that might support (or defeat) the purpose of the legal element or requirement. Here's a tip: A "case blurb" is just that…a quick blurb containing a brief phrase about the material facts (to help you recall the case) and a short sentence or two that summarizes that holding (decision) of the court and it's rationale or motive in reaching that decision. Try to use the word "because" in your case blurb…because….that forces you to get to the heart of the principle behind that particular case that you are inserting into your study tool.
6. Take Your Study Tool for a Test Flight!
Yes, you might crash. In fact, if you are like me, you will crash! But, just grab hold of some old hypothetical problems or final exam questions and - this is important - see if you can outline and write out a sample answer using your study tool. Then, just refine your study tool based on what your learned by using your study tool to test fly another old practice exam question or two. Not sure where to find practice problems? Well, first check with your professor and library for copies of old final exams. Second, check out this site containing old bar exam questions organized by subject matter:
Finally, let me make set the record straight. You don't have to make an outline as your study tool. Rather, your study tool can be an outline…or a flowchart…or a set of flashcards. And there's more great news. There are no perfect study tools, so feel free to experiment. Indeed, what's important is that it is YOUR study tool that YOU built from YOUR own handiwork. So feel free to let your artistic creative side flow as you make your study tools.
Thursday, June 11, 2020
You've heard the quip: "Which comes first? The chicken or the egg?"
"Well," continues the pun, "I'll let you know. I just ordered one of each from Amazon."
With respect to memorization, I think that we can say that memorization comes last. But what comes before memorization then?
As Professor Melissa Hale indicates, the words "memory," "memorization," and "remember" all have - at their roots - stories, and the memories that then come out of those lived experiences is what we can "memories." Hale, M., "Memory Tips," Law School Academic Support Blog (Jun. 10, 2020). So, memorization is preceded by stories and stories are produced through experiences.
Consequently, for those preparing for bar exams, don't focus on memorization at all, at least for now. Rather, as Prof. Hale writes, focus on learning, experiencing, and sharing in the stories that are wrapped into the many essay and multiple-choice questions that you are practicing. Id.
Learn from them. Experience them. Talk to them. Wrestle with them, too.
Then, when it comes time to work on memorization, in the final two weeks of bar prep, you'll have something real to recall, something memorable and tangible, because you will have experienced those rules, not in the abstract, but in the context of experienced narratives. That way, when it comes time for your bar exam, you'll have more than just the law to talk about; you'll also be able to show how to apply the law to solve bar exam problems.
And, back to the pun shared at the beginning of this little blog, that's something to smile about. (Scott Johns)
Wednesday, June 10, 2020
I keep getting asked about memorization for the bar exam. Specifically, “How on earth am I supposed to memorize all of this?” and “Do you have any tips on memorization?”
So, here we go!
First of all, memorization is a bad word. I hate it. You want to remember, or recall, but not memorize. Why do I make a big deal about this? Well, for a couple reasons.
First, our brain is awful at memorization. Briefly, we have short term memory, long term memory, and memory retrieval. Short term memory can also be called working memory. It’s like a short picture that only lasts minutes. Next is long term memory, where memories are stored. And finally, memory retrieval, which is what you are concerned with for the bar exam. This is also the most difficult to achieve. So, your aim isn’t really to “memorize”, but to remember and recall.
Also, if you focus on memorization, instead of learning, you will get overwhelmed and stressed. So, reframe the idea in your mind for more success.
So, what CAN you do?
The power of Story and Emotion
Memory is often tied to stories, and strong emotions. This is why our autobiographical information is easy to recall. We might smell a certain food, and fondly remember a lovely family celebration we had as a child. These memories are typically vivid and strong. That’s because we process them as stories, not facts. If you are at a party, you don’t focus on individual details to remember, like the color of the walls, or the music playing, and consciously try to memorize it. You remember it because it’s happening to you, it’s a story. In addition, you are more likely to have a vivid memory of that party if you are feeling a strong emotion, usually intense happiness. (Carey, 2014) or (Tyng, Amin, Saad, & Malik, 2017)
So, how do you make this work for bar review? The act of studying doesn’t make for a good story, and you aren’t likely to feel very strong emotions. Maybe frustration, or stress, but those actual have a counterproductive impact on memory. So, it’s up to you to manufacture stories and happiness. Don’t just stare at outlines, or black letter law. Do more and more practice questions, which are stories. Or, even better, make up new hypotheticals of your own, the more ridiculous the better. If you’ve seen me lecture on any bar topic, you know I love crazy stories. I’m sure my students often roll their eyes, and wonder why I’m being ridiculous. But it’s to help with memory. The more absurd or ridiculous my examples, the more likely you are to remember the law.
Also, manufacture happiness, as much as you can. Studies have shown that test subjects that are placed in a room with simple smiling faces do better on memory. So, surround yourself with happy photos or pictures of your pets. Call one another on zoom and make up ridiculous hypotheticals until you are all laughing.
Speaking of stories, practice! Each MBE fact pattern, and each essay hypothetical, are stories! So, not only will practice make you better at tackling the essays or MBE questions, but practice gives your brain
stories to hold on to. The examples will help your memory! If you are trying to memorize the rule for parol evidence, doing 10 MBE questions, and really learning from each question, will serve you better than reviewing your outline over and over again.
In cognitive psychology, chunking is a process by which individual pieces of an information set are broken down and then grouped together in a meaningful whole. The word chunking comes from a 1956 paper by George A. Miller, "The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information". This was because the brain can typically only remember 7-8 items at once.
So, what does chunking information mean for you? Well, let’s think of a grocery list.i
So, you have to buy the following:
You might want to chunk by meal. For example, Bread goes with turkey and cheese, and maybe tomato. Milk goes with Cereal, and maybe those go together with orange juice. As I’ve listed it, the items are random, so there is no way to remember them. Or there is, but it’s very difficult. But grouping by the meals will help your memory.
Alternatively, you can group by where the items are in the store. It is likely that the orange juice and milk are together, and the so are the bread and cereal, and the turkey and cheese.
So, the first step in chunking is to think about how you will need to use the information. This is one reasons I place practice so highly. When you go to memorize the law, you can’t memorize it in a vacuum. You have to think about how you will be using it, and then chunk from there.
Our brain learns more effectively if we space out information. So, this is more support for my theory that breaks are magic! Think of it like this, if you are building a brick wall, you need to let the motor in between the bricks dry before you stack too high. Similarly, you let one coat of paint dry before you put on another. You get the idea.
So, while studying for the bar, space out your studying. While it might feel like you don’t have time, you need the space to solidify your knowledge.
Take breaks! I wrote an entire blog about this last week. But your brain can only process and remember so much at once. Essentially, if you are reading 50 pages of outline, without a break, you are only likely to remember the first and last few pages. That’s a waste of time! Take frequent breaks, and break up what you do. The more active you are, the better.
Write an essay with open notes. Do a set of 5 MBE questions, and then review the applicable law. Mix up subjects. All of that will help with memory.
General Mental Health
Finally, I mentioned before that if you are frustrated or stressed, that doesn’t help with memory. That means you have to take care of yourself mentally while you are studying. This is going to vary for everyone, but make your mental health a priority. And if you feel yourself getting frustrated or overwhelmed, see above and take a break!
Finally, remember that your aim is to learn, not merely memorize! Also, this is just meant to be a primer, and is already too long for a blog post. There is so much more to be said about various memory techniques.
Carey, B. (2014). How We Learn: The Suprising Truth About When, Where, and Why It Happens. New York: Random House.
Tyng, C. M., Amin, H. U., Saad, M. N., & Malik, A. S. (2017). The Influences of Emotion on Learning and Memory. Frong Psychology.
i I completely took this idea from Paula Manning at the 2015 AASE Conference in Chicago, and have been using it ever since!
Thursday, May 28, 2020
That might be an overreach. But not by much. I only witnessed - at the most - 3 different flowers along the nearby hiking trail. Another hiker, who I met along the way, exploded with joy that she had spotted 44 different flowers along the same identical path, many of which were rarely seen during the short Colorado spring season. Same path; different eyes.
That experience left me wondering what else I am missing in this journey of life. Much, I suspect. Especially in these times with much of my face hidden behind a bandana. You see, I had a different purpose in mind on the hiking trail. And that resulted in a different pace and a much different outcome.
My fellow hiker's words hit home with respect to bar prep. Much of the colloquial wisdom is to practice testing yourself, constantly, as you prepare for your bar exam. Watch the clock, and my oh my, certainly don't take a timeout to research a bit of law when you are stumped. But, if in your bar prep you are driven by working the clock, you'll miss much. And what you miss is the opportunity to learn to improve critical reading and problem-solving skills because developing those skills takes lots of time and concentration - just like my fellow hiker spotting 44 flowers in beautiful bloom along the trail.
Let me share a secret. Rare is it that people run out of time on the bar exam. Oh it happens. But it's not because they didn't practice with the clock. Rather, it's often because the gambled with proven strategies to tackle their bar exams. They grabbed hold of the essays and then spent precious time looking for their favorites. Or, they hit the multiple-choice bubbling along the way while leaving many answer choices blank, with a long list of questions that they'd like to come back to, in the event that they have more time left at the end. On the bar exam, you don't have time to look at questions twice (or even more). Rather, just solve them one-at-a-time as they appear in the materials.
I know, you're saying, "Well, how am I going to get faster if I don't practice with the clock?" I'm not saying never practice with the clock, but the time to do so is much later, mostly only with mock bar exams, and mostly only in the last two weeks or so. In my experience, if you work on getting faster, you'll be super-fast but also often super-wrong because you haven't worked on seeing the patterns and observing the commas, the phrases, and the many nuances that are the heart of doing well on the bar exams.
Let me make it concrete. I have never seen a person fail the bar exam because they didn't know enough law or weren't really speedy enough. Rather, when people do not pass the bar exam, they tend to write about issues that weren't asked by the problems. That's because they worked mostly for speed through as many problems with goal of constantly testing themselves. "Am I passing yet? Is that good enough? I've got to get up that trail, so to speak, as fast as possible."
Instead, let go of the clock. Spend time in the midst of the problems. Question the questions. Puzzle over them. Ponder and probe the language, the phraseology, the paragraph breaks, and the format of the questions. In short, for the first six weeks of bar prep, practicing problems to learn with just an occasional check-in mock bar exam to see how you are doing. That way you'll be sure to see what's hidden in plain sight. And, that's the key to doing well on the bar exam. To locate and expose, what one of my recent students brilliantly called the "undertones" of the problems...that are really in plain sight...if only we take the time to learn to see.
(Scott Johns - University of Denver).
Tuesday, May 19, 2020
In a normal year, my students would all have begun their bar preparation yesterday, coasting on their post-graduation-ceremony momentum right into a seat in front of the first of many lecturers. But in New York, and more than a third of all U.S. jurisdictions (in which -- again, in a normal year -- more than half of all July examinees would be sitting for the exam), the date of the bar examination has been postponed for six weeks or more, leaving bar students in those jurisdictions with the gift they hate most of all: uncertainty.
What is to be done with all this extra time? Bar preparation companies cannot agree: some are simply administering their typical ten-week program, just starting it six weeks later than usual, while others have reworked their program schedule, starting it earlier and drawing it out over a longer period, but with shorter study days. Employers, many contending with their own virus-induced crises, have added variables to the new graduates' calculations, some allowing their new employees to start early and then take time off, others expecting hirees to adhere to their original early-August start dates, and still others unnervingly withdrawing their employment offers indefinitely. Even we bar support specialists can only make well-educated guesses about how to make use of six extra weeks. We have no data, no direct experience of how a delay like this will affect individual students or the testing cohort as a whole. How much more study can a student put in without burning out? Should the extra time be spread across all aspects of bar study, or should certain skills or subjects receive more attention? Will MBE scores increase overall for those who take the test in September? Decrease? Will the bell curve spread out? Will this hurt or help examinees?
Sensibly, 43 more days of prep time should be seen as a boon. In a normal year for bar study, isn't time the most precious resource of all? In my discussions with students, I have suggested they think of this extra time the way they might think of an unexpected financial windfall. You don't have to spend it all in one place. You might devote a large chunk of it to bar study -- that is, after all, the primary focus of the summer -- but how you specifically budget it depends on your own circumstances. An examinee facing financial pressures might choose to work for a few weeks, then begin studying a few weeks early. Someone eager to get started studying might begin this week, but set aside a week or two, at strategically placed spots on the calendar, to put study aside, connect with family and friends, or do whatever else helps them refill their gas tank. It's important not to let the time slip by unnoticed -- it would be bad to turn off the TV one night near the end of June and realize you had not done any bar study -- and that's why it's important to budget the time and actually create a schedule. And that, for some, is what seems to turn this temporal windfall into a vexation. In order to budget, you have to make choices.
No one wants their bar prep period to feel like playing endless rounds of "The Lady or the Tiger?" At every step: choose the right path, and you will be rewarded with contented knowledge and testing skills; choose the wrong path, and you will be mauled by a ravenous UBE with MPT fangs and MBE claws. In a normal year, examinees only have to be certain that the regimented bar study course they have chosen, which has worked for thousands of examinees before them, will continue to reliably work for them. This summer, though, because so much is unregimented, some examinees are anxious about being uncertain about so much more. Am I studying enough? Am I studying too much? Am I studying too early? Am I studying the right things, in the right way, for the right amount of time?
Two propositions can help people in such a tizzy of uncertainty. First, assure them that they are not feeling this uncertainty because of some character flaw that prevents them from making definitive choices. They are not losing their heads while all about them are keeping theirs. This is an inherently uncertain situation -- we can't even be assured the exam will actually be administered in September! -- and so there is no single "correct" choice. The best they can do is what they've been training to do for the past three years: exercise good judgment based on competent authority and relevant facts. As long as they are not just guessing, as long as they are talking to us and their mentors and their instructors and applying what they learn to what they already know about themselves and the task before them, they can at least make a good choice.
Second, help them subdue the perception that they are overwhelmed by uncertainty by reminding them of what is certain. The content and structure of the bar examination remains the same (well, except in Indiana), as do generally those of the reputable bar courses designed to prepare examinees for the test. They still have their law degrees, and the skill, intelligence, and diligence that helped them earn those degrees. They have a community of classmates, instructors, and mentors who they can rely on to share perspective and feedback on the decisions they do make. They have a certain task, they have certain abilities, and they have certain resources. In the face of uncertainty, those are best certainties to have.
Monday, May 11, 2020
In response to the mounting uncertainty about the administration of the July 2020 bar exam, Indiana has moved its exam online.
By order of the Indiana Supreme Court published May 7, 2020, Indiana will offer a one-day online exam in late July. According to law.com “that makes Indiana the first jurisdiction to commit to an online July exam, and the first to say it is creating its own version of the licensing test.” Indiana was one of the last states to adopt the Multistate Bar Exam, and had, for years, given a purely “state-made” exam. Today, the Indiana exam includes multistate content and state specific essays, so the bar examiners likely have an arsenal of potential test content. Other states, like California and Massachusetts, have made nods towards an online exam, but have not publicly defined what their exam would look like or when it would be administered. Both California and Massachusetts have postponed their July exam until September.
Indiana may soon have company. The Chief Justice of the Nevada Supreme Court filed a petition recommending a temporary modification of its July 2020 bar exam to an online format. The petition is based on a recommendation from the Nevada Board of Law Examiners (BLE). The Nevada BLE proposed to administer a two-day, fully online, exam consisting of eight essays and one Nevada performance test. The Nevada proposal excludes multiple-choice questions. If accepted, Nevada will join California and Pennsylvania in administering its own performance test. The Nevada proposal is open for public comment. Anyone wishing to support (or oppose) the proposal should email the Clerk of the Nevada Supreme Court. Like Indiana, Nevada uses both multistate content and administers a state law essay exam.
The COVID-19 pandemic has added new layers of stress to the already hectic workloads of the academic support community. ASPers are affected by the pandemic in ways that our doctrinal colleagues are not. Traditionally, we are the ones from whom students seek counsel and clarity about the bar exam and how to prepare for it. Our ability to respond to those questions has been upended by proposed delays and the looming threat that a face-to-face exam cannot be administered in either July or September. All we know now is that we really don't know what will happen or how our students should best prepare. Added to the worry about whether there can be a bar exam at all, is how our students will fare on the exam and what our pass rates will look like.
The Society of American Law Teachers (SALT) called for suspension of ABA Standard 316 mandating that law schools maintain a 75% bar passage rate to remain in compliance. We can reasonably anticipate that bar pass rates will be lower in 2020 than in recent prior years. Students are under extreme stress dealing with pandemic related adjustments, fear of contracting the virus, and fear of spreading it to loved ones. Summer bar takers lack of access to law schools, public libraries, and quiet coffee shops for bar study, because they are not open to the public. Some may be battling illness themselves. Moreover, the administration of three separate exams with comparative and wholistic grading will also likely skew the exam outcomes and lead to a higher number of bar failures than would have occurred had all candidates taken the exam in the same administration. The Bar Advocacy Committee supports the SALT position and will present a letter to the Executive Board of the Association of Academic Support Educators (AASE) for signature, delivery, and public posting.
In the past, New York has been the state to follow, in terms of bar exam policy and development. Not so, anymore, as the limited seating debacle has cast a cloud of embarrassment and incompetence over the empire state. Who knew that we would see such progressive and compassionate bar policy leadership coming from Utah, Indiana, and now, hopefully, Nevada! It just goes to show that good ideas aren’t tied to population or politics—good ideas stem from compassionate effective leadership. And there is still room for more leaders with regard to the July 2020 exam.
Thursday, May 7, 2020
I once had a teacher tell me to never read good books. Never ever. And why not?
Because if I spent my time reading good books (or doing good things), then I wouldn't have time left to read the really great books (or do the really great things of life).
That's a lesson that has never left my side.
In bar prep, I'm convinced that too many are trying to do too much, and, in the process of doing good tasks, they aren't doing the great things that are really important for success on the bar exam. Let me be frank. You don't have time in bar prep to do good things. But, you have plenty of time to do the really great things, the things that produce fruitful learning.
With that in mind, here's a few tips:
- Do less reading and more pondering the law, how it works or doesn't, and what it means to you as a person.
- Do less note-taking and more puzzling through problems to learn the law.
- Do less testing and more practicing, feeling free to work problems over slowly, reading them out loud if you'd like, as you develop confidence and competence in your own voice as an expert problem-solver.
That's just a few suggestions.
But, rather than hear it from me, a teacher, I thought I'd share the wisdom of a recent successful bar-taker in that person's own words. After all, they say that a picture is worth a thousand words (but the wise words from the heart & mind of a recent bar taker -- who wants to share with YOU what she/he learned through re-taking the bar exam -- is worth a priceless fortune).
Advice for First-Time Bar Takers:
- Practice way more than you think! If you are wondering whether you should watch a lecture or do a practice question, do the practice question.
- Let go of memorizing everything. It is impossible. Learn what your weak areas are and spend more time with those subjects.
- You will feel like you know nothing until approximately the last week of bar prep. Somehow, magically, it does come together. I promise.
- Do all the bar prep practice tests.
- Think really hard about who you want to study with. This is not the time to do something different from how you handled law school.
- Come up with a plan and stick to it. The bar prep calendar is really helpful for this. Decide how many practice questions you want to do everyday and do it. But if you are starting to burn out, be OK with taking breaks. It's a marathon!
Advice for Fresh Start Re-Takers:
- First, I am so sorry that you have been dealt this card. There is no question that it hurts. Take care of yourself and do things that make you happy.
- As you begin planning your next round of bar prep, make sure to work with the law school to identify the weak aspects of your exam answers. This will help define ways you can “work smarter” instead of “work harder.”
- Also work with the law school to identify new ways to study. It might be changing up your study tool or how you review your answers. For me, studying ALONE the second round vastly improved my scores. I think studying alone boosted my confidence because it required me to look up answers to my own mistakes. I also stopped comparing myself to friends.
- Ditch the bar prep lectures. Use that time to practice WAY MORE MBE and MEE practice questions. I probably tripled the amount of practice questions I did during my second round of bar prep.
- Log your progress. I was way more intentional about compiling lists of rules I kept missing on MBE questions. This helped me to keep track of weak areas so I could spend more time learning the law in specific subjects.
- Spend timing thinking about any testing anxiety you might have. Adding mindfulness meditations to my study plan helped a ton!
That brings me back to the start of this little essay. How do you know what are the really great books to read (or the great things to do)? That's were wisdom comes in. Reach out to a person you trust, on your faculty or staff or from a colleague or mentor who knows you as a person from head to toe. The advice that I've shared in this blog is from such a person, who, although he/she doesn't know you, knows you, because she/he has cared enough to share with you the lessons learned through the process. So, you have a friend who is rooting for you (and that includes me too!).
Monday, May 4, 2020
Imbroglio: A complicated situation; a sequence of events so absurd, complicated, and uncommon as to be unbelievable.
Merriam-Webster might as well add a footnote to the July 2020 bar exam administration as an example of the term “imbroglio.” No other term can accurately describe the debacle that surrounds the upcoming bar exam. Blog, essays, and the exasperated cries of bar candidates—summed up in one word. One word with an applicability of meaning that has become self-evident.
A complicated situation – Our nation has become embattled by a contagion that shows no sign of relenting. Across the country, stay at home orders are in place to mitigate the spread of the deadly coronavirus. In states with large numbers of bar takers, there is no safe way to administer the bar exam in the traditional format. Yet, bar examiners and the American Bar Association insist on a bar exam as screening tool for entry into the practice of law.
A sequence of events so absurd – Some states postponed the July exam. Some states canceled it altogether. Some states propose to offer a bar exam in early September; others in late September; others have postponed the exam “indefinitely.” No matter what the states propose, the National Conference of Bar Examiners (“NCBE”) will let us know on May 5, 2020 whether there will be any multistate or uniform exams released in July. States that have adopted the Uniform Bar Exam (“UBE”) are powerless to administer any exam in July if the NCBE won’t provide the questions, because UBE states don’t write their own bar exams anymore.
Complicated – Epidemiologists tell us that the virus comes in waves. Even with proposed and announced dates for the bar exam, COVID-19 may make it impossible or unwise to administer it in the late summer or early fall. But bar takers cannot afford to wait until there is certainty to begin studying. Many will begin bar study this month, for an exam that may or may not take place. They will study in places that are not libraries or law schools, because those places are closed.
Uncommon – COVID-19 presents an unprecedented situation that will impact the flow of new attorneys into the profession at a time when there will be an increased need for legal services. Extraordinary times call for extraordinary measures, like emergency diploma privilege. Utah adopted a sensible emergency diploma privilege, but the ABA and the NCBE discourage other states from following suit.
Unbelievable – Just when we thought things could not possibly get any worse, the New York Board of Law Examiners announced that it may not have enough room to allow bar applicants from out of state law schools to sit for the exam that it hopes to administer on September 30 – October 1. In that same announcement, and with hold-my-beer momentum, the New York bar officials strongly encouraged candidates “to consider sitting for the UBE in other jurisdictions.” That this advice was given without regard for the COVID precautions of other states, and at a time when very few other states were still accepting applications, defies comprehension.
I won’t ask, “what could happen next?”
 ABA STANDING COMMITEEE ON BAR ACTIVITIES AND SERVICES LAW STUDENT DIVISION RESOLUTION [sic] (04/07/020) “the Resolution does not . . . modify or limit the historic and longstanding policy of the ABA supporting the use of a bar examination as an important criterion for admission to the bar.”
Thursday, April 30, 2020
Often times I hear students suggest that what they are learning in law school seems so unmoored to the reality of the world, especially in the midst of this pandemic. I wonder. Could there be a way to connect law school learning to real life experiences? More to the point, to the extent that students feel that way, that might be our fault for failing to use the latest news events as tools to facilitate and enhance our students' learning.
So, here are a few examples of some rich possibilities to help bring the gap between academics and practice as students finish their online classes and prepare for their upcoming final exams:
I. Retrieval Practice - Fed Civil Procedure (Venue):
Perhaps this ongoing story caught your eye about the Cuban doctors suing the Pan American Health Organization, an agency of the United Nations in federal court in Miami, Florida. Cuban Doctors Who Worked in Brazil Sue International Organization Alleging Forced Labor, Miami Herald (Nov. 30, 2018).
According to recent press reports, this class action is pending a decision by the judge as to whether to transfer venue to Washington, DC, from Miami, Florida.
Here's some of the questions that I asked students: (1) What's the standard for a request to transfer venue? (2) What's the rule for the initial venue choice? (3) What are the basic requirements for a class action case?
II. Retrieval Practice - Property and Contract Law (Marketable Title & Contract Defenses):
Here's one for the 1L students preparing for final exams. It seems that a Chinese company is suing a South Korean company in State Court in Delaware to compel (i.e, for an order of specific performance) the defendant to close on a real estate deal to buy a portfolio of 15 luxury U.S. hotels. https://www.wsj.com/articles/former-anbang-unit-suing-south-korea-s-mirae-for-failure-to-close-on-5-8-billion-hotel-portfolio-purchase-11588006092?mod=searchresults.
According to the news article, the defendant asserted two grounds for its refusal to close the deal as justification for its breach of a property sales contract. First, the defendant argues that the COVID-19 pandemic serves as valid contract defense of impossibility to perform. Second, the defendant argues that the title for the hotel group was unmarketable at the time of closing earlier this month because a "California individual had secretly created fake deeds [that] purported to transfer ownership of at least six hotels in California [in the hotel group]. Id.
Here's some questions to ask of students? (1) What's marketable title mean? (2) Is the defendant entitled to a contract defense to prevent specific performance? (3) is this lawsuit a common law contract case or a UCC Article 2 case and why?
According to a recent media report, several individuals have filed suit against the California governor alleging that the governor ordered the state police to stop issuing permits for protests on the state capital grounds while "noting the Capital in Sacramento has hosted a variety of [other] demonstrations." https://www.msn.com/en-us/news/us/california-faces-civil-rights-lawsuit-after-highway-patrol-bans-rallies-at-state-capitol-over-coronavirus/ar-BB13lbI7.
The plaintiffs alleged violations of their First Amendment rights, presumably on grounds that the state capital park area is a public forum in which few restrictions of speech are permissible. There also seems to be lurking an equal protection issue based on allegations of differential treatment based on the content of protesters' messages.
Here's a few questions that come to mind? (1) What's a public forum? (2) What's the test for speech restrictions on a public forum? (3) What test would you use for equal protection analysis?
Here's one last suggestion...
With final exams soon to begin, the news is a great way to (a) mix up practice with a variety of different subject matters; (b) help students issue spot and analyze legal issues; (c) develop and strengthen student confidence as problem-solving subject matter experts; (d) encourage students that what they are learning today is valuable for their tomorrows; (e) energize students in practical ways to incorporate retrieval practice and analysis in their final exam preparations; and, (f) help students see how lawyers, the judicial system, and litigants interact in the public sphere to shape social and political policies. So, keep your eye out for the latest news. It almost always has a few legal issues or more buried in it. (Scott Johns).
Tuesday, April 7, 2020
The last few weeks have been extraordinary in dizzying ways. A massive and abrupt shift to online teaching; a disruptive delay in administration of the bar examination; increased academic, professional, and/or personal responsibilities; fears for one's health or the health of loved ones; actual physical illness; loss of income; loss of planned employment or experiential opportunities; long-term economic uncertainty; social isolation and loneliness -- any one of these would be distractingly stressful to a student or teacher under ordinary circumstances, and many of us and our students are facing most of them simultaneously.
The saving grace has been the correspondingly extraordinary response -- demonstrations of grit, resourcefulness, generosity, and positivity -- that the situation has generated. Administrators and technicians working 16-hour days to keep classes and resources flowing. Educators implementing and sharing creative solutions to the problems of distance learning, and making special efforts to keep students engaged. Students accepting their changed circumstances with remarkable flexibility, increased effort, and gracious understanding. And, as a backdrop, millions of people, throughout the country and the world, working, sharing, and cooperating towards common goals.
But these last few weeks are really the first few weeks. To many they seem much longer already, but everyone -- law schools included -- faces an even more extended period of disruption and deprivation. That burst of energy and goodwill with which our students faced the initial transformation will have its limits. Even our own stockpiles of buoyancy and resilience are going to be threatened.
That is normal. It is really a form of culture shock, and as anyone who has experienced culture shock can tell you, there will be a cycle of highs and lows until we fully acclimate to our new world. We can all deal with these, one way or another, but the best way is with open eyes and thoughtful consideration. Expect at some point to feel exhaustion and discouragement in ourselves, and to recognize them in our students and colleagues.
Plan for it if you can -- be thinking ahead about when (soon!) you can take some time for yourself, and about how you can encourage your students to do the same. Classes will be over in a few weeks, exams a few weeks after that; a little downtime right about now, and then after exams are over, can help to stretch everyone's reserves.
Reaching out to others for support -- sharing or trading tasks, enjoying a little social time (like a virtual happy hour), or even just mutual commiseration about how tough it has been -- should be a little more manageable at this point, now that we have all familiarized ourselves with our new schedules, our formerly unfamiliar conferencing tools, and the proper guidelines for face-to-face-but-still-six-feet-away interactions.
And, most importantly, don't let the next plunge in spirits catch anyone by surprise. Let your students know -- gently, not with a sense of foreboding -- that it would be natural to start feeling low at some point, and that the feeling will not be permanent, and that you can be there for them while it lasts. Help them to focus on the tasks that will help them not only get through the next several months, but also accomplish things they will be proud to talk about years later. And remember that you will not be immune, and that taking care of yourself is another way to help you take care of your students.
Thursday, March 5, 2020
Every once in awhile I have a "aha" moment. I stumbled into this one, and I'm not the same because of it.
As background, a student reached after having failed the MPRE on multiple tries despite having watched commercial bar review lectures, creating personal study tools, and working lots and lots of practice questions.
I was so impressed with the student's preparatory efforts. The student had created spectacular blackletter study tools. The student knew the law backwards and forwards and could retrieve rules in a flash. And yet, the student missed question after question despite lots of practice in working through and analyzing problems.
That's when it came to me.
My student had learned the law - cold - but was still missing questions because the student had not learned the culture of how the law was tested. Based on my student's prior experiences as an attorney, I asked how my student had learned to solve legal problems as an attorney. My student explained that the key was in learning the culture of how the law applied to client problems.
Likewise, I suggested that perhaps the key to success on the MPRE lies in learning the legal culture of the MPRE. With this thought in mind, my student focused preparation efforts anew on learning MPRE culture rather than MPRE law. And guess what? The student passed the MPRE with flying colors!
Based on this admittedly anecdotal experience, my sense is that many students do not pass the MPRE because they focus on learning the wrong thing. They try to learn the law without learning the socio-legal context of how the law applies - the culture of the law.
With this thought in mind, I now suggest to students that they work through practice problems as armchair legal sociologists to learn the culture of what is being tested. In short, in my opinion, the MPRE doesn't really test the law as much as it tests the legal culture of the law. (Scott Johns).