Friday, December 1, 2023
It’s the last day of classes. There is palpable stress in the air that can only be brought on by the collective dread of law school final exams. This time of year, I always seem to reflect on my own 1L fall exams. I remember a string of late nights spent furiously editing outlines. I can also clearly remember thinking to myself, “I’ll never have time to study if I don’t finish these!” Finally, I realized something was wrong with that picture. Isn’t creating a study tool supposed to help you study?
I felt an unbelievable amount of pressure to make outlines for every class. But the outline structure made it difficult for me to see the hierarchy of concepts, to synthesize the material (to cut an anecdote about a case felt like torture and a word document is endless anyway), or frankly to even review the material in a meaningful way. My strength in learning comes from my ability to see the big picture and make connections back to that structure. Working systematically on an outline each week, when many law classes are not taught with the big picture in mind, was painful. I was behind on my outlines, not because I wasn’t working hard or was procrastinating – I was behind because the process of outlining didn’t work for me. So, I did the unthinkable. I hit delete on all my outlines.
How did I manage to succeed on my final exams after I pressed delete? I created study tools that helped me see the big picture, synthesize rules, and think about how those rules apply to new scenarios. I made the same study tools I used successfully during my undergraduate career. I called them “concept pages.” They were single sheets of paper, each dedicated to a major concept in a class. They were messy with arrows connecting ideas. They also contained clear, concise rule statements and showed how the rules connected. I could make them quickly. They improved my understanding because they acted as a series of capstones on each major concept. They aren’t for everyone, but they worked for me. And that is my point.
Over the years, when students come to me panicked about the state of their outlines (not started, WAY too long, class notes with roman numerals that mean nothing to them, etc.), or crying because they will never finish their outlines in time to study for exams, I start the same conversation. “What if you tried something else? What type of study tool did you make in college? How do you like to organize material? Flow charts? Tables? Maybe something handwritten and messy?” I have seen many students do better in law school when they stop making outlines and start making something else. What would happen if we supported students to make the study tools that work best for them? If we gave them other options from day one? If we talked about creating study tools instead of using “outlining” as a synonym for law school success?
The best study tool to create is one that best organizes the information. For some topics that might be a short, traditional outline. For other topics, a table or flow chart will work better. We should be flexible about study tools because they need to flex around the subject matter and around individual needs. I’ve stopped telling students to outline. Instead, I ask what type of study tools they are working on and how the tools are working for them. Who’s with me?
Monday, February 13, 2023
I have spent the last few months helping to draft an internal document for my law school that is supposed to evaluate the current state of the entire upper-level curriculum and make some recommendations based on those assessments. I will preface my list below by stating that my school has been amazingly cognizant of the issues we’ve raised, but my little committee also did some outside research that identified these general issues. Writing this report has been both an overwhelming and incredibly nebulous task, but here are some things I’ve learned on the way to dropping off those 37 pages of love off to the higher powers:
- Some of our recommendations aren’t going to matter much if the NextGen bar exam is adopted by our state bar. No one will need to take Secured Transactions anymore….
- Students in academic distress will tend to stay there (Newton’s Law of Academic Warning?) because while we are (understandably) concerned about them passing the bar, we are sending them to classes that are quite similar to the ones that caused the initial distress. More big classes where the curve is required are not the answer to doing poorly in big classes where the curve is required. It is like giving students who are stuck in a ditch a shovel rather than a ladder.
- We should try to ensure that every student, and especially those in academic distress, has as many different types of legal instruction as possible: doctrinal, skills-based, experiential, transactional, etc. Students who are limited will not see themselves as lawyers, just mediocre law students. This isn’t good for their confidence while still in law school and it could honestly exacerbate mental health issues. If a large class, with a curved exam, that employs lectures doesn’t work for a student, why make that a big chunk of what they need to take to continue in law school?
- Smaller classes would most likely benefit both students and faculty. I think this is particularly true of classes required for students in academic difficulty, but I do not want my report to be the reason our Dean is sneaking out of the building to buy lottery tickets. Sure, more funding for all of this would be great, but then law school tuition would be out of reach for most and that is exactly what we are trying to avoid.
- While writing this report was time-consuming and sometimes frustrating, it is worthwhile to take the time to see where we are and make recommendations (big and small) that can take us to a better place. Sure, some of what we recommended was purely aspirational, but if the Dean gets the Powerball jackpot, you never know what is possible….
Monday, January 23, 2023
It is that time of year when ASP folks are inundated with students who have had an epiphany about their study habits -- usually brought on by grades that were less than stellar. It is also the time of year when students with grades that our law school is concerned about are told to come visit ASP. These students all have a few Cs and have been told that this GPA might not be good enough to continue after the first year. They are frightened, chastened, and often need the tissues and the chocolate I've stocked for this season. I have a general plan for working with these students-almost a template: go over the bad exams, let's see where the deficiencies are (not phrased that way!), and let's get started with building the skills to avoid them for the next set of exams. If the issue is output (lack of IRAC, multiple choice questions that were confusing, etc., time), I get them started on practice questions ASAP. If it is input (didn't outline, didn't study efficiently, missing classes, other distractions), I get them started on building better habits and practice. If it was a mental health issue, or some outside trauma, I ask if they are in a better place, make sure that they are getting help, and then send them to practice (but very gently). I'm sure you do something very similar. This is the bread and butter of ASP. Time-proven technology that is individualized for each student.
But (you knew there would be a but), what do you do with the students who come to you with very good grades? Recently, before I even got a chance to email the 1Ls who will be notified that they should be seeing me, another first year student asked to meet with me to discuss improving their grades. Their grades were: A, A-, A-, and the dreaded B+. I had some good advice about improving their social life--i.e., don't complain to anyone else about these grades--that I kept to myself. I also did not want to dismiss the student with a "those are great grades, whatever you are doing, keep doing it." Although, I will admit this was my first thought along with, "do you realize that there are students here who would kill for those grades????" All I could think of was that Michael Jackson song, "[k]eep on, with the force, don't stop. Don't stop 'til you get enough1." Sigh.
Yet, I would never turn away a student who asked for help-even if my knee jerk reaction was that they did not need it. So, I followed the protocol-I told them to go talk to the professors and ask what was good, what might have been better on the exams, and then to come back to me so we can start working on those things. I warned them that the professors might be seeing students with lower grades first so that they would need some patience. I'm guessing I'll see them again by late February-hopefully.
In a way, I respect this student's drive, and in another way, I am a little concerned about it as well. So rather than act as a surly gatekeeper to the ASP resources in this situation, I thought it might be a good idea to keep an eye on this student to remind them every now and then that the goal is learning. I fully understand that if their grades are worse in the spring, I might be considered the reason.
Academic support is more than academic. We all know it, so while this student may not need academic help, they do seem to need support. So, if I am their personal Stuart Smalley2 who helps them see that they are good enough, smart enough, and doggone it, they belong in law school, maybe that will be enough.
Thursday, January 19, 2023
Last fall at a conference I heard an idea that really stuck with me, and I’m still thinking about today. I had sort of intuited the idea before, but I had never heard anyone articulate it, and I’m still chewing on it months later: our students have a different relationship with knowledge than we did when we were students.
Those of us who completed our schooling before the ubiquity of smart phones used to have to know stuff. And to know stuff, we learned it was much easier to understand stuff—understand why it works a certain way, make connections to get to the answer, understand why A leads to B and that’s why C—than it was to simply memorize. And this was as true in our personal lives as in our educational pursuits. Remember how conversations about movies went, before IMDB? “What’s the name of that movie? The one with the actor I like? He was in that other movie with that actress, the one who played two versions of herself in that other movie?”* Not the most scholastic of examples, but it demonstrates one small way we practiced the skill of making connections to arrive at the needed information.
In contrast, students today largely have not needed to know information in the same way (that's not to say they don't know things, but that they haven't needed to know in the same way). They can always look it up on the spot, and so it they may not have had the same need to practice making connections and understanding as a means to remember and access necessary information. The entire contents of sets of encyclopedias and more have always been available with only a few thumbstrokes on their phones, so they could always just look it up.
If we believe that students today have a different relationship with knowledge than we did, it is not a long step to believing that they may also have a different relationship with understanding and learning. Before we can help students learn to think like lawyers, we may first need to talk explicitly about the importance of learning for understanding. (This concept as it applies to law school and the bar exam, and some excellent advice for how to implement it, was covered excellently in this blog about a year ago.)
I think we have all heard statements like, “students today don’t know how to think!!” generally, from kind and well-intentioned colleagues. What I think those types of statements intend to express is that learning and thinking are different now than when the speaker was in school. We can’t change the way our students have learned before they got to law school, and the thinking skills they had the opportunities to practice. But starting with the understanding that they may approach knowledge and remembering differently than we learned to can inform how we support our students for success in law school and the bar exam.
*Four Weddings and a Funeral, John Hannah, Gwyneth Paltrow, Sliding Doors.
Wednesday, December 7, 2022
That's my summary of a wonderful article sharing a helpful learning practice and the reasons behind it. In the article, Prof. Dawn Young at the University of Idaho shares that "working a hypo a day can help you grow a gigantic analytical muscle" because the daily practice helps organize thoughts, see patterns, and learn exam analysis skills. I wholeheartedly agree. Here's the link for the details: Brunette, J, "3 Reasons a Hypo a Day will Keep Bad Grades Away," National Jurist (Nov. 30, 2022) (quoting and referencing Prof. Dawn Young). (Scott Johns).
P.S. And, if you're in the midst of final exams, as many of you are at present, there's still ample time to start the habit, today. In fact, starring at your outlines, trying to memorize them, is not near as useful as using your outlines to solve hypes and past final exam problems. So take charge of your learning by courageously tackling and experiencing problems before you take on your remaining final exams.
Thursday, September 15, 2022
I heard a recent joke that goes something like this, in a conversation between an insurance agent and the insured homeowner:
- Agent: Hello.
- Insured: Hi. I'd like to report a theft from my house.
- Agent: I'm so sorry to hear the news. Let me take a look at your policy.
- Agent: Okay, tell me more. Did your house also catch on fire?
- Insured: Oh, no. Just a theft.
- Agent: Well, in that case, I'm so sorry. You're not covered.
- Insured: What do you mean I'm not covered? My policy says right here that it is fire and theft protection.
- Agent: Well, that's precisely right. You see, you bought fire and theft protection, not fire or theft protection. So, since you didn't also have a fire, you aren't covered. It's as clear as day.
All kidding aside, contracts are often like that, as is much of law.
So, as you study cases, statutes, and other legal materials, pay attention to the writing, the terms, and the connectors. Be curious. Think outside the box. Be on the lookout for ambiguities in the text because that's the heart of lawyering, precision. Parse the words, particularly criminal statutes. And, if you seen ambiguities, try to clear them up. And, don't forget to do the same on midterm exams and practice exams. That's because it's in the ambiguities in which the points are most heavily concentrated. And if you'd like more advice and exercise in how to become better at reading, check on Prof. Jane Griese's book on Critical Reading for Law School Success. It's the book that I wished I had had in law school. (SJ).
Thursday, June 2, 2022
"As it turns out, there's a way to improve student learning that even sullen teenagers won't complain about: Give them financial incentives to study hard:" so says Harvard economist Roland Fryer based on research in about 290 schools with about 36, 000 students. Fryer, R., "How to Make Up the Covid Learning Loss: Paying Students for Attendance, Behavior, and Homework Can Boost Achievement, WSJ (May 31, 2022).
In the article describing the research team's results, the author suggests that the key was targeting inputs (reading assignments, being in class, completing homework) rather than outputs (exam scores or results) because many students don't feel like they can control results but that inputs are within their control. Id. All told, to put such an incentive to work in public schools would cost about $700 per year, which the author suggests (in my words) is small change compared to the roughly $13,000 on average spent per student per year for education.
I'm not so sure that paying students to read, practice, and learn makes sense because it feels like it's devaluing to the learning experience. However, "the research team found that students' achievements remained elevated even after our incentives were removed." Id. And, as the author suggests, we pay people to work so why not pay students to learn?
It's an interesting question. But truth be told, regardless of the daily incentives to learn, the key determinate for success in this large scale experiment was engaged learning on a daily basis. So, I think that the lesson for us in legal education is to incentivize learning to learn - not through cash incentives - but through making the learning experience challenging joyful and productively meaningful. That's hard work but that's our job.
As a suggestion on how to help incentivize learning, try building within your curriculum learning exercises using news events that relate to the subjects that students are studying. So, for example, in a tort class, one might explore possible product liability claims against companies manufacturing pulse oximeters because research indicates that the widespread use of these devices to determine whether one needed critical covid-19 care is racially biased, leading to under diagnosis of significant populations and likely premature deaths. Mosbergen, D., " Pulse Oximeters are Less Accurate Among Black, Hispanic, and Asian Covid Patients, WSJ (May 31, 2022). Oh, and there's another legal issue lurking in this article: "The Food and Drug Administration last year warned of potential pulse oximeter inaccuracies when used on people with dark skin pigmentation, but didn’t change the way it regulates the devices." Id. In other words, are there any constitutional issues against the regulatory authority?In other words, tie what we learn in the books to how we can use it to help others, now.
That's an incentive that I can buy in to. (Scott Johns).
Monday, April 25, 2022
This semester I changed up my assessments for my undergraduate law class. In the past, I had done oral arguments as a final assessment, but after witnessing paralyzing anxiety from more than a couple of students last semester, I decided that I was assessing mental health rather than legal argumentation skills. No one should be graded that way. So, this semester, students are writing a judicial opinion (pretending to be a U.S. Supreme Court justice) in the case of Carson v. Makin. This is a fun case for my undergraduates because it took place here in the First Circuit (nearby in Maine) and it is about high school (also temporally nearby for undergrads). The case is about Maine’s program for students in very rural areas that do not have a local public high school. Maine’s law allows parents to choose another public school in a different district, or a private school so long as the private school meets certain criteria in terms of state required curriculum, attendance, and our sticking point: that the school is “non-sectarian”. The case is a great example of free exercise clause litigation and students are really getting into it, but the very complicated issue of standing is one I have had to take off their plate because it is a bit too much for students who have not taken a course in Federal Courts. Essentially, the plaintiffs are parents who would like to send their kids to sectarian schools but because of the Maine law, they haven’t even tried to use the tuition assistance program. The schools that the parents want to send their children to have not agreed to follow Maine's other requirements either. So, you may be asking, how have they been injured? The attorneys for Maine asked this as well, in more than one case, and each time the District Court and First Circuit found that there was standing because, “[T]he plaintiffs’ injury in fact inheres in their having lost the “opportunity.”" It seems a little like tap dancing in the rain to find standing here, but there it is: a lost opportunity is sufficient injury to get the case before a court.
This decision made me think that we may be injuring our students who are on Academic Warning, Probation, guided curriculum, or whatever your school might call it. We do, of course, intend to help these students in terms of bar readiness and supervision to prevent further academic mishaps. We have a compelling academic interest in having students take this path. Our studies and experience show that it works. I really have no doubt that our process does improve our students’ chances overall. To that end, we have students take bar tested courses like Evidence, Commercial Law, Family Law, and Trusts and Estates once they have a GPA below a certain threshold.
But…these students are required to take another set of large, grade-curved classes that tend to have one high-stakes summative assessment at the end. This might be where things initially went wrong for them, so more of it may just dig the hole deeper for some. We also occupy their schedules with required courses that monopolize their time and credits each semester. Students in academic difficulty do not often get the green light to take a credit overload. There is less space, after satisfying the requirements, for courses that are not bar tested and may have alternate assessment schemes. Students who do well in their first year can then go on to choose courses that allow them to keep up or substantially improve their already good GPAs. Students flagged for warning or probation after the first year have a much harder time moving up in class rankings in subsequent years. Students in academic difficulty know that on-campus recruiting is not going to even consider them. Clinical opportunities may also be lost because of scheduling or because of academic status or both. Some students really need to take the engine apart and put it back together to understand how it works-and some students need to see what lawyering really is to reignite their underlying enthusiasm for continuing in law school. There is a hopelessness we are creating because these opportunities are lost.
Don’t get me wrong, I am not advocating that we abandon this process altogether. We do students a grave disservice if they are misled throughout law school to believe that they are on track for bar passage only to fail. We similarly do students no favors by continuing to take their tuition money when law school is clearly not for them. Perhaps, though, we can re-evaluate our methods. There are no easy answers here-just a request to be mindful of students who feel that they are drifting further away even as we are throwing them a lifesaver. They don’t want to just survive; they want the opportunity to get back on the ship.
 Carson v. Makin, 979 F.3d 21 (1st. Cir. 2020)
 Me. Stat. tit. 20–A, § 2(1) (2022).
 Carson, 979 F.3d at 26.
 Id. at 30 (citing Eulitt v. Me. Dept. of Educ., 386 F.3d 344 (1st. Cir. 2004)).
How’s my citation? Call 1-800-Bluebook to report it.
 Is this ideal for bar passage? Perhaps not.
Thursday, April 7, 2022
I read a recent article about memorization. What caught my attention was the headline: "Why We're All Forgetting More Things Right Now."
According to the article, "[o]ur brains are like computers with so many tabs open right now....This slows down our pressing power, and memory is one of the areas that falters." (Quoting neuroscientist Sara C. Mednick). As I look at my computer screen right now, that's not only my brain but my computer too. It might just be that the reason that we have difficulty creating and retrieving memories is that we aren't focusing our attention on the tasks at hand.
In summary of the article, here are four tips to improve memorization and memory:
- First, don't force memorization because frustrations then creep in and "override the parts of our brains that retrieve memories." Id. Instead, "take some deep breaths to calm your brain down and try again." Id.
- Second, don't multi-task. Id. In my own words, if a task is important, it deserves all of us, not just part of us. So practice paying attention and put yourself in a position to remove distractions.
- Third, develop brain calmness. Id. That means taking breaks, meaningful breaks, with others, with yourself, in nature, and get sleep because sleep "clears out the toxins that can clog [our] mental processing." Id.
- Fourth, "be socially present." Id. The article talks about approaching "conversation intentionally." Id. That requires a lot out of us, but those around us deserve our attention - completely and fully. And, I'd add, approach reading and learning and problem-solving in law school intentionally conversational. Take with the cases as though the judges are present before you. Speak out your study tools and outlines. Challenge yourself with flashcards or other problems.
So, take pauses, be kind to yourself and others, when present be really present, and put away the distractions.
Sometimes I think that is why writing is so beneficial for me. It takes focus, attention, and being truly present with the task at hand. It's also why I run from writing so often. I suppose, like many, I like to go from experience to experience, never really seeing, or really experiencing at all. That's not exactly the right path for a rewarding memory or life. (Scott Johns).
Thursday, March 3, 2022
As author Kathryn Rubino poses: "What if I told you there was one thing you could do in your 1L year that would improve your grades in all your classes?" Rubino, K., One Thing Can Improve All Your Law School Grades, Above the Law (May 2, 2016). Frankly, that sounds too good to be true.
"Well," as Rubino writes: "it isn't science fiction. There is...research from Dan Schwarcz and Dion Farganis at University of Minnesota Law School suggesting that law students who get individualized feedback from their professor in one subject are more likely to do better in ALL their classes (emphasis in original)." Id. Still have doubts about the power of individualized feedback to really change lives? Well here's a link to the research so that you can make up your own mind: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2772393
In my own case, I sometimes forget the power that one can have in the individual moments. As an academic support professional, sometimes I fear that I am looking in all of the wrong places, aiming for some momentous program that will change lives for the better. But sometimes the key to change is right in front of us, if we only look. Just one 1L faculty member, providing individualized feedback to just their students in that one class, can have life-changing impact for that professor's students - across the board. That's something to cheer about, and to get on board with too. (Scott Johns).
Monday, January 31, 2022
I would imagine that almost all of us in the ASP world see students who are in academic difficulty: those who are on warning, probation, and even double secret probation now and then. I know I work with students in classroom settings and one on one who have been told they must seek my help to stay in school. Some students are right on the (wrong) edge of the standards that would exclude them from these graduation conditions, and they are, usually, unhappy about the circumstances. And they are right-because some of the requirements and limitations may only serve to dig them deeper into the hole they barely fell into in the first place.
One example of this is a list of required classes that students must take depending on their GPA. The classes are carefully curated to correlate to bar passage. Yet, they also tend to be bigger upper-level classes (at least 40+ students), so chances are that there is a mandatory grading curve applied to these classes. Sometimes the grading curve (required by many schools especially in the 1L Year) may be the reason the student is in this predicament in the first place. And thus, students who might have easily dug themselves out of academic difficulty in their 2L year by being able to choose classes that are better suited to their interests and strengths, find themselves further entrenched. To make matters worse, these classes also tend to have one summative assessment to earn that curved grade. Sometimes the issues students face are far more exam related than comprehension related.
These same students are also often locked out of, or put at the bottom of the list for, clinics and other programs that give them experience (needed for graduation) and confidence (also needed for graduation). This is exactly the kind of class experience that students who struggle with exams need. This is where they could shine, if they could just reach the light switch.
A student who is currently occupying this space met with me last week and told me that she felt, particularly in light of the pandemic and the chaotic atmosphere of her first year, that she was being kicked while she was down. Even more disheartening, she felt that she was still being kicked while on her way back up. It reminded me of the song Dirty Laundry (Don Henley-and if you also remember this song, we are both officially pretty old). The chorus of this song, “kick ‘em when they’re up, kick ‘em when they’re down, kick ‘em all around,” is what came to mind in that moment. Considering the NextGen bar exam that incoming classes (next year’s incoming evening students at my school, for example) will be taking, perhaps we need to rethink how we handle students when they’re down. The new edition of the bar exam will emphasize competencies over memorization. While we will still all encounter students who may not be up to the task, there are many students clinging to edge of the cliff who are absolutely capable of finding solid ground-given the chance. Let’s throw them a rope. I don’t want students to think that we, “love it when people lose.”
 Ok--that is not a real thing, but I thought it was clever to slip in a reference to the movie Animal House and see if anyone noticed. Of course, explaining the reference in a footnote kind of defeats the humor….
Thursday, January 13, 2022
In working with bar applicants preparing for the February 2022 bar exam, I keep hearing concerns about analogical reasoning, one of the legal analysis skills tested on the bar exam. And, for first-year law students, many whom are taking persuasive legal writing courses this semester, analogical reasoning is a key persuasion method.
I noticed the power of analogical reasoning while reading an article describing the Supreme Court oral arguments last week in the vaccine requirement case. J. Bravin, et al, "Supreme Court Shows Skepticism over Biden Vaccine or Test Mandate," WSJ (Jan. 7., 2022).
As a bit of background, the Court was considering two issues, first, whether the federal executive branch had power through OSHA via Congressional authorization to mandate covid-19 vaccines in workplaces with more than 100 employees, and second, whether the federal executive branch through its Medicare and Medicaid Office had congressional authorization to mandate covid-19 vaccines for medical personnel working in medical settings and receiving funds from the federal government.
The U.S. Supreme Court split the issues (with a split court too). In a 6-3 decision, the Court held that OSHA did not have the regulatory power to mandate vaccines in large workplaces while, in contrast, in a 5-4 decision, the Court held that the executive branch has such power in the medical field for those receiving federal government medicare and medicaid funding.
Already, we see a tension between the two holdings. Those tensions require explanations and that's where you, as an attorney, are critical. It's your explanation of similarities or differences that constitutes analogical reasoning. And, to the extent that your explanation of those differences or similarities is persuasive is what I call "analogical reasoning as a form of peer pressure." In short, analogical reasoning suggests that you have friends, powerful friends and powerful tradition that backs the position that you are now arguing on behalf of your client.
Take last Friday's oral argument over the "vaccine or test" requirement. In the workplace requirement case, Justice Sotomayor asked of attorneys: "What’s the difference between this [vaccine or test requirement] and telling employers, where sparks are flying in the workplace, your workers have to wear a mask?" Id.
In other words, the Justice is asking an analogical question, seeking an explanation as to why the vaccine requirements are any different than other normative OSHA workplace safety requirements, such as masks to protect industrial workers from flying sparks and fire hazards. That's not an easy question to answer. It requires much of us - curiosity, courage, and showing connections.
The premise behind the question is that no one doubts that OSHA has congressional authority to regular workplace hazards with reasonable tools to prevent harm that, at the same time, allow workers to complete their work successfully. Masks to prevent workers from suffering eye injuries due to flying sparks is just such a prototypical regulation that is, obviously, permissible. That's the "peer pressure" component. Once that is settled, the party who opposes the vaccine or test requirement now has the burden to show how covid-19 is different from other types of workplace hazards, such as flying sparks. It's not impossible to do but it requires deep thinking.
As a tip, you might try an exercise, listing in one column the precedent situation (masks to prevent spark hazards) and the other column the disputed situation (vaccines to prevent virus hazards). Then, under each column, brainstorm possible differences and similarities, as many as possible. Once you've finished brainstorming, now look for connections that might explain how the two situations are similar (and why) and for differences that might explain how the two situations are dissimilar (and why).
The art of analogical reasoning is then explaining which of those two (similarities or differences) is more persuasive, moving, and powerful and why that is the case. That's analogical reasoning.
For the OSHA requirement, we might say that the two situations (masks for spark mitigation versus vaccines for virus mitigation) are similar in that both are hazards that are preventable, that are prevalent in the workplace because of the close working conditions between workers and the hazards faced, and that the workplace situation exacerbates the hazards because of the duration of time that workers are present in the workplace. In contrast, one might say that the two situations (masks for spark mitigation versus vaccines for virus mitigation) are dissimilar in that sparks are hazards not common to the public at large, tied specifically to the type of work done, and limited to particular workplace activities while the virus is widespread regardless of whether one is working or not, the virus is not the byproduct, like sparks are, of producing products or services for the employers, and that the virus is not limited to specific workplace activities but is present everywhere and in all such that if OSHA has that power it has virtually unbridled power, at least one might say.
At bottom, analogical reasoning is about using comparisons and contrasts to bedrock principles and trying to extend or prevent extension of those principles to new or novel situations. In short, it's a form of peer pressure, which, in my own case, is one of the most powerful pressures of all. So be friendly when you engage in analogical reasoning. Don't press too hard. Let your explanations do the pressing. (Scott Johns).
Thursday, September 30, 2021
Often times I see but I don't. Perhaps an analogy will explain.
It's bear season where I live. But the bears are awful hard to spot, despite their large size. It seems that their big paws tend to distribute weight so that they move with stealth-like grace as they forage among the mountain berries, shrubs and trees. They tend to make not much more noise than a trifling breeze or a bird at work building a nest.
But I have a secret weapon to spot the bears - my dog.
You see, a few weeks back, while hiking, Maisey came to a screeching halt, sat perfectly still, and sniffed the mountain breeze. A sniff here and a sniff there. I was like, "Come on Maisey, let's get going." But she sat, still.
After about 5 minutes of waiting silently, I finally noticed a slight rustle down the hillside from the trail. Not much of anything. But then another rustle and another and another, all ever so silent. Suddenly, I saw what Maisey had sensed all along before. A bear, foraging in the scrub oaks. For the next twenty minutes or so, I watched the bear slowly eat its way down the hillside before I finally lost sight. But the lesson wasn't lost on me. I would not have seen that bear by myself. I needed the sense of another, one with keener senses than me.
I think law school is bit like that.
As law students, we can re-read our papers or our notes or our midterm answers and not really see what we really wrote. It's sort of like we are blinded by our own senses, by our own sight.
However, much like my experience on the trail scouting for bears, as law students, we have available to us, just for the asking, people who have keener senses than us, finely tuned, who can take a look at our work and thus open us up to a whole other way of seeing and experiencing things. In short, we can turn to our faculty and academic support teams to help us - as learners - see what's really in our answers (and what isn't).
So, as law students, don't feel like you need to go it alone in law school, at all. Freely reach out to others for help. Let experts review your work. Get feedback from your professors and your ASP team at your law school. You'll be surprised at what you'll see. It probably won't be a bear, but I can guarantee that it will help you become a better attorney. And that's what we are here for -- for you. (Scott Johns).
Monday, September 20, 2021
One of the ways we support our students who are on academic warning or probation is to require them to take a second-year course in Legal Analysis and Methods. The title is vague enough to appear on a transcript without stigma to the student and, as a side benefit, it also gives us a lot of latitude in what we teach in the course. In my section of Methods, I teach study and exam skills as well as a smidge of legal writing, a dash of argumentation, and a bissel of statutory construction/interpretation. I also conference with students one-on-one towards the beginning of the semester to check in on an ungraded “getting to know you” assignment and to try to understand how they got stuck, I mean were fortunate enough to enroll, in this class.
I had a set “script” for these conferences. At the beginning of each conference, we discussed the ungraded assignment (there is written feedback for everyone as well). I thanked each student for doing a great job in our simulated legislature class last week (seriously, the Massachusetts legislature could learn from them). Then, I asked about the other classes they are taking to see where there might be stress points.
Finally, I ask about the elephant in the room, “How do you find yourself on Academic Warning/Probation?” I intentionally use the passive voice. If a student says they had some “personal problems,” I do not ask for details, I just ask if the issues are resolved (or resolving), and if our Dean of Students’ office is aware of them just in case they need some higher power intervention. If a student says they had issues on exams, I make a note of the type of exam it was for future classes on exam skills. Now granted, I knew some of the students coming into these conferences because we met regularly last year. Other than now knowing how tall they really are and confirming that they do indeed have legs, I didn’t need to hear how they got here, but I did need to know how they were doing now.
This year, like all years, I take notes of these meetings. As I flipped through the legal pad for these conferences after meeting with my 22 students, I saw one word show up at the end of my notetaking for every single student, “Zoom.” This was the always part of the answer to how they found themselves in academic trouble.
Zoom or remote learning wasn’t the whole problem for most students: it was Zoom plus. Students told me that last year was not academically successful because of Zoom plus: ADD, ADHD, anxiety, dyslexia, having COVID, having a family member with COVID, having a chaotic living situation, having a bad internet connection, and so on. But remote learning was, as one student put it, “at least 30-40% of the issue.” Everyone in the remote learning situation-those of us teaching and the students learning- were all trying our best. The bottom line is that remote learning does not work for everyone. These students were concerned that when they take the bar, they will not have learned enough in their first-year classes to get them into a passing range. They felt that they were building their law school houses on weak foundations. This is a valid concern. Going through two (or three for evening students) more years of law school feeling like you are perpetually trying to overcome a deficit will also take a toll on confidence.
I am not saying that remote learning is universally negative either. I had students last year that thrived in a remote learning environment, as well as students who were very nervous about returning in-person because of the pandemic. Remote learning allows broader access for students; I think that is the promise of remote learning going forward. A student can, for example, attend a law school in a place they cannot afford to move to (like Boston) or attend school when health or family issues might otherwise prove an insurmountable barrier. And this is not even close to a complete list of pluses.
Yet, the students who preferred remote learning are just simply not the students I am seeing in academic distress right now. I am not asserting that my 22 student class is a representative sample of all law students but they are mine to teach and I need to know where things fell apart for them before they came to me. The current in-person situation has pluses and minuses as well. Students report that are much happier to be back in-person--but also stuck in a position of navigating the 2L curriculum with a 1L understanding of law school culture. Some of them have spent less time in the building than the 1L students who came to school before classes started for orientation-- a few more cracks in the foundation that will need filling. One student thought that being called an upperclassman was laughable because they felt they had very little to offer the incoming class in terms of wisdom and “the ways” of law school. And yet, they hoped that the expertise they did have was, and would continue to be, obsolete. I hope so too.
As academic support folks, we know there have always been (and will most likely be) students who are in academic distress. Some have had family issues, relationship issues, a failure to understand the time investment etc., but it seems that today’s students have all of these troubles plus Zoom.
 Bissel means just a little bit in Yiddish, https://www.dailywritingtips.com/the-yiddish-handbook-40-words-you-should-know/
Thursday, September 16, 2021
Recently, Professor Liz Stillman (Suffolk Law) provided excellent guidance and encouragement on creating study tools. Stillman, L, "Seasons of Law," Law School ASP Blog (Sep. 12, 2021).
If you are wondering what that might look like, take a quick dash over to Suffolk's Law's academic support materials. https://www.suffolk.edu/-/media/suffolk/documents/law/academics/academic-support/acadsupport-creating-an-outline_pdftxt.pdf?la=en&hash=2678C2FDA2AAF306EDC4BF80613AD174A77679B0
In just a flash, you'll be able to get the big picture view along with concrete guidance on how to best create your own study tools in preparation for upcoming midterm exams. (Scott Johns).
Thursday, September 9, 2021
I've read a lot of articles and books about teaching and learning. But, as others have pointed out, reading is not really learning. So, if I'm honest, they've not tended to lead to better teaching. However, I recently joined a small class as a student. That's when the lessons, principles, and methods that I've read so much about began to take root in me. In particular, I started to notice something special about how to teach because I was no longer the teacher but the student who was learning and growing.
I loved this teacher's method because the teacher would read a portion of text and then asks us what we saw. In other words, it was learner-centered teaching. The star of the action was not the teacher but us as our teacher guided us by asking us to see, learn, think, create, reflect, interpret, explain, test, hypothesize, analogize, critique, extrapolate, and create meaning. And, the best part of this class has been that we've been doing all of this as a group in community with each other. Not in competition but in cooperation in which each voice adds to the whole of what we learn. And, one of my favorite moments is seeing my teacher takes notes as we converse about what we see in the text. That suggests to me that if I am not learning from my students, they aren't learning either. It's absolutely thrilling to be a student guided by such wonderful teaching.
So, if you feel stymied in your role as a teacher, you might see what you can learn by joining a class as a student. It's a lesson that is guaranteed to produce results.
Oh, and as a side note, some of my worst classes as a teacher have been when I over-prepared so much that I left no room for my students to learn. I'm not saying don't prepare, but teaching requires us to listen, to reflect, and to learn with our students. It's a conversation in relationship with each other. And, that's risky because it means that, if we are honest, we don't have all of the answers or even all of the questions. And that's okay. We don't have to be perfect as teachers - being present in learning with our students is more than enough. (Scott Johns).
Saturday, August 28, 2021
Since classes started last week, we have had a lot of chatter on our faculty list-serv about teaching while masked. Last year, most faculty members taught unmasked from home, so this is new for them. Yes, your mask gets gross after about thirty minutes and, also, yes, it is hard to be understood and understand students when everyone is masked. Yet, it is nice to be back in a classroom and feel that energy even when I am not sure I could pick my students out in a line-up. I was contemplating a blog entry about the best masks for teaching or learning in classes that are longer than one hour-but I am still doing that research.
But what about the other masks that we are all wearing in class? The ones that do not obscure our noses and mouths, but rather the ones that obscure how we feel or our point of view? I am usually concerned about the things I can’t see about students even when their faces are visible to me. I know that my students on academic warning are multi-faceted and that they find themselves on academic warning for a number of reasons-many of which many not be academic. I want to see them regardless of how we are conducting classes.
So, I asked them to show me who they are behind the mask. I didn’t have anyone unmask in the classroom, but the first request for the class was to take a survey (not an assignment because I was asking some questions that might be considered more personal than students are comfortable answering). I had started doing this last fall during remote teaching to ascertain technology and space constraints on the advice of my amazing department chair for my undergraduate classes. I threw in a few fun questions like whether or not talking about the ending of Bridgerton or Wandavision would be a spoiler and which one of my pets they would like to see come to class for a visit (I underestimated the number of guinea pig fans, but she made her cameo nonetheless).
This year’s survey was a little different but began with the usual getting to know you questions like names, what you would like to be called, pronouns etc.. I asked about what they will miss most about remote learning (the commute was the number one answer there, followed closely by snacks). I asked open ended questions about things they think I should know about their learning style and ways we can make our class a community. I asked about what things outside of school might impact their academics and about what skills/knowledge they hoped to leave the class with. I got some very thoughtful and helpful ideas about what I could do to make this a useful class. I know students had to give up another class to take this required class and knowing what students want from it and how they would like it to happen is incredibly valuable information. This class doesn’t work without buy-in from students, so knowing what they are shopping for is always better.
Finally, I asked about attending the class in-person. It was the last question in the survey. The question prompt was “In person learning is:”. Unlike other multiple-choice questions they will encounter this year (and beyond), there were no wrong answers and you could check as many as applied. The choices I offered were: “Amazing”, “New for Me for Law School”, “Scary”, and “A lot and I am Overwhelmed”. Out of the twenty students who answered the survey (from a class of 22), 14 said this was new for them, 5 said it was scary, 4 said it was overwhelming and slightly more than half (11) thought it was amazing. Interestingly, but not surprisingly, no one checked just one answer. In retrospect, maybe I should have offered an “All of the Above” option because that is the option I would have chosen.
I still may not be able to recognize everyone when (and if) we unmask at some point, but for now, I see them clearly.
 The masks with the clear mouth area creep me out. I get a beginning of Rocky Horror coupled with Pennywise vibe from those, so they will not be appearing on that list.
 Intentional use of the passive voice.
Thursday, August 19, 2021
In follow-up to Professor Victoria McCoy Dunkley's outstanding blog post entitled "Be in Your Bag (of Questions) as a 1L Reader," here's some thoughts about how you might use your senses to help make sense of the cases that you are assigned for class reading: https://lawprofessors.typepad.com/academic_support/2021/08/be-in-your-bag-of-questions-as-a-1l-reader.html
But first a story...
I've been doing a lot of walking. In fact, I've walked about 380 miles from Denver to Durango on the Colorado Trail (I still have about 120 miles to go of high altitude terrain). As a person who fractured my back two summers ago in a car accident, I'm a slow mover and that's okay.
You see, as Professor Denise DeForest at Colorado Law quips, when you find yourself lost, "slow down, stop, and sit on a log." I love logs, rocks, and boulders. My favorite time on the trail is resting. But, as I sit on a log recuperating, my senses come alive. I start to hear buzzing. I spot all kinds and manners of activity that I missed while hiking, like the scurry of ants preparing for the fall mountaintop snow storms. My hands feel the bark of the downed log that has become my lounging spot. In short, just because I stopped doesn't mean that I stopped learning and experiencing. Rather, by slowing down and stopping, I saw more than I did while moving.
There's a lot to be gleaned from these sorts of experiences. Most of our lives, let's be honest, are lived in haste. As though there's no time to waste. But critical reading takes pondering time; it takes using your senses to experience what the parties might have felt like when they litigated the case that you are reading, what they might have exclaimed or cursed when the decision came out, how the court might have explored and explained how they viewed the case and the facts.
So, in follow-up to yesterday's excellent blog post on 1L reading, feel free to journey through and with the cases. Situation yourself in them. Be expressive, feel free to be combatant and skeptical, let yourself run wild, so to speak, as you give voice to what you are seeing, as you learn and question and interpret what you are reading. That's learning. In other words, it's going to take time. But it is not wasted time at all.
That being said, I spent all of first-year of law school super-afraid (really most of law school) because I'm not good speaker or a reader (I was a mathematician in college). And, the gold lettering on most of the case books - with lots of red and black - psyched me out.
But not all that is gold glitters. Much of what you read is, well, not very well-written or good or even just. So take aim at it. Don't let the cases fool you. You belong in law school, which means that your voice and life counts. Share it with others. And, as you journey through reading, let me know what you are learning. I'd love to hear from you! (Scott Johns).
Thursday, August 12, 2021
Congratulations as you begin to embark on your legal education as entering first year law students! It's an exciting time!
But, as others have pointed out, amidst the buzz, there can also be a lot of anxiety. Stress especially seems to mount at the most inopportune times, like when we've been assigned lots of stiff reading in preparation for our first law school classes.
So, here's a few suggestions about how to read for classes.
But first, I have a confession...
I hear voices. Not all of the time, mind you. But, definitely at the most inconvenient of times...like when I'm trying to read! [I think this is called sub-vocalization.] You see, I can only read as fast as I speak (and I don't tend to speak very fast unless I'm excited or nervous, which I often am, particularly when I'm trying to digest dense legal materials).
Indeed, I'm not a very good reader. To be frank, when someone asks me to work with them through a reading passage (whether a case, a statute, a multiple-choice problem or an essay prompt), I really want to go in hiding, into a "sound chamber" so to speak, so that I can read slowly and not so-silently, as I work out the meaning of the text through hearing. That's because as I hear the words the words become alive, the punctuation marks spring up from the page into my voice, and the paragraph breaks give me a chance to catch my breath and digest what I've just vocalized. But that takes time.
In short, if you haven't caught the gist of what I am saying, I feel like I am a poor reader because I am a slow reader.
So here's my first tip: Rushed reading is not reading. To paraphrase Socrate's famous line that the "unexamined life is not worth living," an "unexamined case" is not worth reading. In other words, in law school, it's not how fast you read but what your learn about the law and legal problem-solving as you read. To cut to the chase, reading is about examining the cases and the statutes and the legal texts assigned in law school. It takes lots of time so plan on it. To put it bluntly, it means "cross-examine" the cases, asking questions, evaluating the arguments and analysis, and then forming your own opinion about those arguments.
Second, don't let the "gold" bindings on the fancy case books and the big name judges that signed the cases intimidate you. In my opinion, many of the cases in the casebook are just wrong because, to be honest, there's no perfect opinion. There are always weaknesses. So be bold and give it your best shot and challenge the opinion.
Third, realize that reading is a skill; it's not something that comes natural to us, especially critical legal reading. But that's great news because, as a skill, it is something that we can learn to do and learn to do well. In other words, believe in yourself.
Fourth, don't just dive into the cases. Instead, model what expert readers do prior to reading by engaging in pre-reading strategies. Take a look at where the case is located in the syllabus and in the casebook table of contents. Based on that placement, try to predict the purpose behind being assigned to read that case. Then, get to know the players. Learn something about the case from the case caption, which might be as simple as the jurisdiction (state or location) in which the dispute took place. Then skim the case to capture the sorts of sections of the case and how it looks organizationally. Finally, here's my favorite pre-reading strategy: Peek at the end of the case to see how it comes out.
Fifth, read with your heart. Recognize that behind each case lies real individuals and organizations with heart-felt disputes that they couldn't resolve without going to court. Put yourself in the shoes of the parties. Let the facts as related by the court speak to you. As you read, look up words that you don't know. Write the meaning of those words in your own words. Then feel free to draw lots of pictures and diagrams to help you visualize what is happening. Realize that each case is subject to multiple interpretations so you have much more freedom than you might think at first to really dialogue with the text. Indeed, try to catch mistakes by the court. Talk back to the court and with the court as you read the opinions.
Finally, realize that reading doesn't stop after you read. Instead, after reading, be an explorer to construct your own meaning of the case. As a suggestion, compile a list of questions that you would like to have asked the court or the advocates. Or, summarize in your own words what you think the case stands for (and why it was assigned for your course). Or, evaluate the case as to whether its reasoning was puzzling, or startling, or settling (and why). Or, conjure up different facts to test how the decision might have been impacted in different circumstances. Then, to wrap up, synthesis a one sentence statement or phrase for what you've learned from the case, such as: "Vosburg (involving a schoolhouse kick) stands for the proposition that people are liable for battery even when they don't intend to harm anyone as long as they intended the contact because the purpose of battery is to protect people from - not just harmful contacts - but from all contacts that interfere with another's bodily integrity as a co-human being."
Before I let you go, let me say a word about speed.
You don't get faster at reading cases by trying to read fast.
Rather, over time, much like water as it heats slowly on the oven range, using these strategies won't feel like much of an improvement...at all. Instead, if you're like me, you'll feel like it's taking a lot more time, energy, and perspiration to learn to be a critical legal reader. And, it is!
But, by going slow, conversationally with the text, through practice in pre-reading strategies, then reading the text with robust gusto, and finally polishing off the reading by making sense and connections with the text for future use, you'll end up becoming a faster reader without even trying. Indeed, much like learning to ride a bike, you'll surely fall lots and get bruises along the way. That's okay because learning is difficult work. But, just like learning to ride a bike, once you get the hang of it, you'll be well on your way to being a better legal reader (and a better advocate on behalf of your future clients too). (Scott Johns).
Thursday, July 1, 2021
Ah, just about the middle of the summer. It's sort of like the 7th inning stretch in baseball, a time to stand, sing, and refocus a bit. Especially with so many of us working with so many of our recent graduates as they prepare for remote and in-person bar exams. It's an opportunity for a quick breather before the final three weeks of bar prep polish and work.
Personally, this weekend is an opportunity for me to step back a bit, to take a look at what I ought to really be focused on, to ask how would others view the programs that I am responsible for delivering to our students and graduates.
Well, to be honest, I'm a bit afraid to ask others. But, as I think about preparing for the upcoming academic year, I thought I'd share the follow as food for thought about "ASP Best Practices." I'd love to hear your suggestions and comments too. P.S. Thanks to Visiting Prof. Chris Newman (DU Law) for development of this slide and his insights too. (Scott Johns).