Thursday, February 7, 2019
Recently, I heard a discussion suggesting that bar passers do things differently in the final two weeks than those who are not successful on the bar exam. That got me thinking about what I've been seeing, at least anecdotally, in my 10-plus years working with students in preparing for their bar exams.
First, both groups tend to work extraordinarily hard in the last two weeks before their bar exams. So, what's the difference? It must be in the type of work that the two groups are doing. In short, during the final two weeks, it seems to me that bar passers tend to ramp up their practice with lots and lots of MBE questions and essays [while also creating super-short compact homespun study tools (2-3-page outlines, flashcards, or posters)]. In contrast, people who find themselves unsuccessful tend to focus on creating extra-bulky study tools and trying to memorize those study tools with very little continued practice of MBE questions and essays. In brief, one group is continuing to practice for the exam and the other group is focused on memorizing for the exam.
But, here's the rub:
It’s a perfectly natural feeling during the final two weeks of bar prep to want to focus solely (or mostly) on creating perfect study tools and trying to perfectly memorize all the law.
But, according to the educational psychologists, there’s something called “useful forgetfulness.” You see, when we jam packet our study tools with everything, we aren’t learning much of anything because we haven’t had to make any hard decisions about what to let go (what to “forget”). We’re just typing or handwriting or flowcharting like a scribe. But, when we purposefully decide that we are only going to make a super-short “starter” study tools (knowing that we can always add more rules as we work through more questions during the next couple of weeks), our decisions about what to put in our super-short study tools (and what to leave out) means that we actually empower ourselves to know both what we put in our study tools (and what we left out).
As a suggestion, tackle two subjects per day – one subject that is essay-only and one subject tested on both the essay and the MBE exam. Starting with one subject in the morning, using the most compact outline that your commercial course provides (and referencing the table of contents for each subject), create a super-short study tool with the goal of completing your study tool in 2 hours or less.
Here’s a tip:
If you think that you need a rule, don’t put it in because you can always add more later. Instead, only add a rule that you’ve seen countless times over and over. Just get it done. Move quickly. Don’t get stuck with definitions of elements, etc. Stick with the big picture umbrella rules. Think BIG picture. For example, be determined to get through all of contracts in 2 hours (from what law governs to remedies). As a suggestion, have just one rule for each item in the table of contents for your commercial bar review outline. Don't go deep sea diving. Stay on the surface. Then, in the remainder of the morning, work with your study tool through a handful of practice essays. In the afternoon, repeat the same tasks using a different subject (creating a snappy study tool and working through a few essays). Finally, in the evening, work through mixed sets of MBE questions.
In the last week before the bar exam, with most of your starter study tools completed, focus on talking through your study tool (for about one hour or so) and then working through lots and lots essay problems and MBE questions. As you practice in the last week, feel free to add rules that come up in practice essays and MBE questions to your study tool. As I heard one person explain it, your study tool becomes sort of a "bar diary" of your adventurous travels through essays and MBE questions (thanks Prof. Micah Yarbrough!). In short, you've created a study tool that has been time-tested and polished through the hard knock experiences of working and learning through lots of bar exam hypothetical problems.
So, for those of you taking the February 2019 bar exam, focus on practice first and foremost because you aren't going to be tested on your study tool. Rather, you're going to be testing on whether you can use your study tool to solve hypothetical problems. And, good luck on your bar exam! (Scott Johns).
P.S. For those taking the Uniform Bar Exam, there are 12 subjects as grouped by the bar examiners (I think there are 14 subjects in California, depending on how you count subjects):
* Business Associations (Corporations, Agency, Partnership, and LLC)
* Secured Transactions
* Federal Civil Procedure
* Family Law
* Wills & Trusts
* Conflicts of Law
* Constitutional Law
* Criminal Law & Procedure
Tuesday, February 5, 2019
Watching the Super Bowl on Sunday made me think of my students. By no means am I implying any similarity between football and the legal profession. After all, one is a grueling slugfest, featuring breathlessly intense clashes between aggressive competitors on behalf of highly partisan, sometimes even fanatically tribal, stakeholders, with pride and sometimes lots of money at stake. The other is just an athletic contest.
No, the reason I thought of my students was the sudden shift in the game in the fourth quarter. Through the first 50 minutes or so of play, the scores remained unusually low and very close. Neither team could gain a clear advantage, and with less than ten minutes remaining, the score was still only 3 to 3. Across the country, spectators were complaining about how stagnant and boring the game seemed.
Suddenly, within a minute or so of game time, everything changed. The Patriots called a play in which a receiver wound up open in the middle of the field, just beyond the Rams' defensive line, and Patriots' quarterback Tom Brady deftly passed the ball to him and gained several yards. By itself, the play was only mildly exciting, and then only because it provided comparatively more action than most of the preceding gameplay. But the Patriots realized right away that the Rams' defense, which up until that time had been pretty successful at confining the Patriots' forward motion, had not had anything in place to keep that lone receiver from appearing unguarded behind the defensive line. So for the next few plays, the Patriots ran essentially the same play, except for choosing a different receiver to run up the field each time. In the space of four plays, the team moved all the way down the field and set up the winning touchdown run.
From the Rams' point of view, everything was fine, until suddenly it wasn't. They were basically evenly matched with their opponents, in a game that looked like it might go into overtime -- and then, in less than a minute, everything fell apart. One weakness was exposed -- one play that they had no planned defense for -- and before they could adjust to it, the other side had taken advantage of that weakness and taken a significant lead. And the fact that they were in that distressing position left the team vulnerable to more trouble. They rushed and ran riskier plays, hoping to score their own tying touchdown in the short time they had left, and under this pressure the Rams' quarterback Jared Goff accidentally threw the ball into the hands of a Patriots defender, leading the Patriots to score an additional three points. The Rams went from having an even chance of winning to having no chance, all because of one weakness that wasn't addressed quickly enough.
In his fascinating book How We Die, the physician Sherwin B. Nuland explained that human death often follows a similar trajectory. Laypeople often imagine that those suffering from serious injury or illness usually experience a long but steady decline until they pass away. However, Nuland pointed out that at least as often, if not more so, the afflicted person manages the illness (or injury, if it is not so catastrophic that it simply kills them right away) fairly handily, with only slight decline or sometimes even with improvement, for days or even weeks. If nothing bad happens, then they might even make a full recovery. But if one thing goes wrong and isn't corrected quickly enough, it can cause significant damage, which itself leads to additional life-threatening complications, and in a short time the patient may spiral down past the point where any medical intervention will be enough to save him. An infected wound, for example, if not treated quickly enough, can lead to a generalized blood infection, which can cause a patient's kidneys, liver, and other organs to stop working properly, and the patient, who otherwise might have almost completely recovered from his initial injury, will die of multiple organ failure.
We see the same phenomenon in other realms than just sports and medicine, such as business and politics. In any complicated system, there can be long, steady declines, but the sudden drastic reversal, attributable to one or a small number of neglected infirmities, is often more likely.
And the life of a law student is pretty complicated. New information to learn, new ways to think about it, new tasks to perform, all while juggling stress and ambition and self-doubt and mountains of practicalities like housing and relationships and (painfully often) finances. We all know that a few students struggle right from the start, but very often students will be managing -- holding their own, even if not excelling -- and then they run into one tribulation they can't fix, and they can't handle. A course they can't wrap their head around. A romantic breakup. Lack of funds to buy textbooks. A death in the family. An extracurricular activity that takes up too much time.
It almost doesn't matter what the problem is, because it's just the trigger. It starts the landslide that could pull the student down. Struggling in one course, for example, could pull the student's attention away from his other courses, leading to anxiety about not maintaining his GPA . . . and what started as one problem spirals into multiple problems.
The response, from an Academic Success perspective, has to be twofold. First, we need to be able to detect these kinds of issues as early as possible, before they turn into the equivalent of a touchdown by the other team or a raging blood infection. We need to have direct interaction with the students most at risk (incoming students, first-generation students, those in danger of financial difficulty, etc.), so we get to know them and encourage them to be forthcoming. We also need to develop strong networks among those in the faculty and student services who might pass along observations of possible distress.
Second, we need to have systems in place to help these students address these issues quickly, before they do become intractable. We are expected, of course, to handle purely academic issues on a moment's notice. But we should also be familiar with other means of support on campus and in the community, to be able to quickly refer students who need help in financial, psychological, spiritual, and other realms.
Time sometimes really is of the essence. None of us want to end up being Monday-morning quarterbacks, lamenting that if we had just changed our defense one play sooner, we could have saved the game.
Wednesday, January 30, 2019
I believe in the power of words. As the journalist and economist Henry Hazlitt wrote, "The richer and more copious one's vocabulary and the greater one's awareness of fine distinctions and subtle nuances of meaning, the more fertile and precise is likely to be one's thinking. Knowledge of things and knowledge of the words for them grow together." If we didn't already recognize this truth before law school, certainly our legal education inculcated this understanding of the immense power of language.
The power of naming applies not only to factual and intellectual concepts but also to management of our emotions. "[T]he greater one's awareness of fine distinctions and subtle nuances of meaning" of our emotions, the more capable we are of coping with the slings and arrows of our emotional lives. This is the concept behind the term "emotional granularity," as recently featured in a public radio story about controlling anger.
Emotional granularity boils down to naming emotions (whether positive or negative) with specificity. The more precise the language we use to describe our emotional states, the more likely we are to understand that emotion, and the greater our success in controlling it. Based on research begun in the 1990s and continuing into the present, Northeastern University psychologist Lisa Feldman Barrett and her colleagues have found that persons who use more specific terms to describe their emotional experiences actually experience those emotions more precisely. Instead of being "stressed" by a low grade or negative evaluation, for example, they may be furious, or indignant, or wearied, or despondent, or crestfallen, or disconsolate.
Those who can more precisely identify what they are feeling are better at regulating and coping with their emotions. In contrast, people who have trouble distinguishing whether they are "angry" or "anxious" or "depressed" or "afraid" have trouble finding the tools to deal with their experience, just like wailing toddlers may not be able to identify whether their distress comes from hunger, overstimulation, sleeplessness, loneliness, or fear.
Emotional granularity is, fortunately, a skill that can be learned, not just an attribute of persons blessed with sensitivity. Sometimes we think that the analytical skills we develop as lawyers have negative emotional effects, but here is an instance where the ability to consciously step back and analyze our emotions can have positive effects. (Indeed, research indicates that persons with high emotional granularity are not only happier but also healthier than the general population.) Moreover, building our emotional vocabulary can assist in and of itself. The more emotional concepts we learn (whether from perusing a trusty American/English dictionary or from exposing ourselves to concepts originating in other languages and cultures), the more our brains are primed to apply the concepts we know. And as Dr. Barrett notes, "The bigger your tool kit, the more flexibly your brain can anticipate and prescribe actions, and the better you can cope with life."
Friday, January 25, 2019
One of my students just showed me his Legal Board which creates shortcuts for common legal symbols, words, and more. You can buy either a full keyboard that includes the Legal Board function keys or you can buy the smaller Legal Pad version that includes just the function keys and can be plugged into your laptop. The student sang the praises of the product for the time-saving on footnotes, citations, and more when he is writing papers. The website is:Legal Keyboard. (Amy Jarmon)
Sunday, January 20, 2019
Perfectionism is often prevalent among our law students. It is not surprising that so many law students strive to be perfect. Our society goads them on. When they were in high school and college, they were the cream of the crop. They were taught that they needed to get all A grades, excel in athletics/debate/other activities, and be the president of organizations to get into the best college and the best graduate school. From the time they were very young, their parents pushed them into a plethora of after-school and weekend activities to pad their future resumes.
In their lives before law school, they could aim for perfection because they were typically heads and shoulders above their competition in getting good grades, garnering awards, and more. Now that the best and the brightest are among the best and the brightest, perfectionism can undermine their efforts and exacerbate a lot of negative traits. Perfection is impossible. Missing perfect leads to self-criticism, fear of failure, unrealistic expectations of self and others, and misery.
I wrote about the dangers of perfectionism in my October 20, 2018 post entitled Are you being sabotaged by perfectionism? The January 2019 issue of Law Practice Today has an article on Reining in Perfectionism showing the negatives of this trait when practicing lawyers fall into its grip. The personal and professional toll can be devastating.
We need to help our students achieve their academic potential, but we need to help them excel rather than aim to be perfect. (Amy Jarmon)
Friday, January 11, 2019
We have blogged about this issue in the past. Although most of the conversation in higher education centers on undergraduates, we all know law students who struggle financially and have had to choose other priorities than eating.
The U.S. Government Accountability Office published a new report on food insecurity on college campuses for low-income students: GAO Report on Food Insecurity. Articles in The Chronicle of Higher Education and Inside Higher Education have recently published stories on food insecurity. The links for The Chronicle are here: 3 Takeaways and Student Stories. The link for Inside Higher Ed is here: Federal Report on College Students and Hunger.
Although there is a focus in the report on how to get more eligible students lined up with the SNAP benefit, the truth is that there are a number of students who are ineligible for government programs and who have food insecurity. They are above the financial cut-offs, but do not have enough loan or other income to make ends meet every month. These are not students who do not know how to manage money or who live frivolously. They live very frugally, and juggle rent, utilities, tuition, fees, books, gas, prescriptions, and perhaps child care. The dollars run out before the days in the month do.
I can empathize. I well-remember end-of-the-month shortfalls waiting for the next stipend check during graduate school. I would spend the last week eating crackers and hot tea at my graduate assistant desk. I only bought essentials, paid bills, and ate a lot of soup, pasta, and stir fry the rest of month to stretch my dollars. Students these days are Ramen-noodle pros - no wonder the noodles are a bulk item at the food warehouses. (We won't even get into the good nutrition versus poor-nutrition foods debate.)
It is hard to study and focus your mind when you are hungry. So how do we help our students?
Certainly if they are eligible for SNAP, then information should be available to them to get them to sign up - despite the stigma they feel. In a few cases, they may be able to work with the financial aid office to review their aid budget for an increase - but if that just means increased loan eligibility, then students are often reticent to go that route. Some law schools have emergency loan funds with low or no interest. Our university has a food pantry available for students. Students comment that speakers and meetings where food is provided allow them to get some extra meals that week.
Maybe one of the best ways ASP'ers can help is to be more on alert to the possibility that some students are going hungry. Some gentle questioning and listening may provide us with previously overlooked opportunities to help our students get assistance in this area. (Amy Jarmon)
Thursday, January 10, 2019
At my law school, we're in the midst of the first week of classes after the long break. It seems like there's no time to pause. Everyone's busy and bustling; places to go and people to see. In fact, sometimes I wonder if we are moving so fast that we might be missing out in one of the best things in life - the present.
That's when I got a bit of startle while reading the newspaper. It seems that there's value in staring the day-off slowly, without the frantic rush. According to a Norwegian think tank (as referenced in a newspaper article this past week), "staring the day with intentional slowness helps spark creative thinking," and that's something I sorely need, especially as an educator. E. Byron, "Wellness: What's the Rush? The Power of Slow Mornings," The Wall Street Journal, January 9, 2019, A22.
Unfortunately, too often, I start my day with my phone, checking email. And, let me be frank. With apologies to my email senders, I've never yet received any creative impulses or stirring messages from my dash to check my email at the start of each day. Instead, it seems like starting with email has left me chasing circles, getting nowhere fast. It's not that emails are not important; it's that emails should not dictate my priorities. People should.
Nevertheless, I seem to have this overwhelming habit to have to check my phone. And, apparently, I'm not alone. According to the same article, "[M]ore than 60% of [people] say that they look at their phone within 15 minutes of waking and check their phones about 52 times a day." Id. That sure seems like a lot...and a lot of wasteful checking, too.
So, here's some ideas to help you (and me) get our days started out strong. First, don't dare sleep with your phone. Rather, put it far away from you. Indeed, use an old-fashioned alarm clock to wake up in the morning, instead of putting your phone within arm's reach right at the beginning of your day. Second, turn it off. That's right. You be the pilot of your phone; take command. Let your phone work for you. You decide when it's time to turn on your phone to check your email, text messages, or social media accounts. Third, relax. Take deep breathes. Appreciate life. Take the opportunity at the beginning of the day to express gratitude. In short, start the day right by living in the present, fully alive and fully present. In my own case, that means that I'm choosing to turn out much of the noise in my life. And, interestingly, that's leading to more productive days, less fretting, more creative teaching ideas, increased opportunities for spontaneity in learning with my students, more time to listen to and be present with others, and just in general enjoy the moment. So, here's to starting out slower each day as the key to actually getting more done.
P.S. For more information about how smart phones impact our cognitive lives as learners, our emotional well-being, and even our biological and physiological selves, please see an article that I recently wrote based on a previous blog: http://www.dbadocket.org/wellness-corner-smart-phone-dilemma
Thursday, December 20, 2018
Congratulations December 2018 graduates! What a herculean achievement! Simply put, outstanding!
Nevertheless, I know that for many of you, right now it feels like a bit of a let down because you find yourself right back right back in the classroom as you prepare for your bar exam in February 2019.
That's exactly how I felt. Simply put, graduation felt a bit disingenuous as I had so much work left to be done to earn my law license. However, let me be frank. As you approach your bar studies, you are no longer a law student but a law school graduate. It may not feel like much of a difference, but its important to recognize - throughout these two months of your bar review learning - that you are a new person with a new professional identity, trained and well-seasoned to think through, analyze, and communicate solutions to vast arrays of legal scenarios.
Despite such remarkable progress as demonstrated by your law school graduation, many bar takers stumble in the first few weeks of bar prep, finding themselves increasing at odds with how to best learn and prepare themselves for the bar exam. I sure did. I spent much of the first few weeks trying to learn the law by, well, listening to professors talk about the law and watching professors talk about solving legal problems with the law. Big mistake! Cost me a lot of valuable time! That's why I write to you, dear law school graduate and now bar taker. Instead of focusing on learning the law, focus right from the get-go (i.e, that means right now, today!) on working through lots of practice problems each day. In short, I was, unfortunately, a "linear learner," as Professor Catherine Christopher says in her wonderful book entitled Tackling Texas Essays (Carolina Academic Press 2018): https://cap-press.com/books/
I. Linear Learning
Let me explain a bit about the difference between linear learning and recursive learning. As depicted by Professor Christopher in the diagram below from her book on successfully preparing for the bar exam , linear studying has a defined path. And, as a bonus, it sure looks nice and orderly, leading to the illusion of a direct straight-line path to success. Indeed, right now, many of you are focused (solely?) on watching videos, reviewing your notes, reading your commercial outlines, and making gigantic study tools. But, if you are like me, you aren't yet taking practice exams (or are only doing very few of them at the most).
Linear Learning (Professor Christopher 2018)
However, as explained by Professor Christopher, that's a big problem. Here's why. You'll end up spending most of the 8 - 10 week bar prep period doing very few practice problems, trying instead to master the law so perfectly so that you'll have enough confidence in the last few weeks to do well on practice problems. In short, you are afraid (I sure was!) to tackle practice problems because there's so much to know (and so many ways to make mistakes).
However, that's a big problem because it's in our mistakes that we learn best. We don't really learn by watching others. Who ever learned to play piano, play soccer, dance, or even litigate a case without practicing (which means "rehearing" and "acting out") what you hope to accomplish in the future with polish? No one prepares to become an expert without first being a novice.
But, as Professor Christopher comments, it feels really terrible, really terrible, to practice problems so early on because we make so many mistakes. But, if we delay practicing problems until the last few weeks possible, we make that practice much more of a high stake experience, in the words of Professor Christopher, such that there's no wiggle room for errors in our practicing experiences (so that there is no room for learning, either). In my opinion, linear studying leads to disappointment and frustration.
But, there's good news ahead, for those of you who engage in recursive learning.
II. Recursive Learning
Now here's a bit about recursive learning. As depicted in the diagram below from Professor Christopher's text, successfully preparing for the bar exam involves learning in a circular recursive process rather than a straight-line linear process.
Recursive Learning (Professor Christopher 2018)
As Professor Christopher explains, the first step - "reading and reviewing" - involves watching lectures, taking lectures notes, and reading outlines [about 4 hours or so per day].
But take note of second step in the circular process: "work to understand." That means that we get involved in the learning, we take center stage, so to speak, in our own learning by "work[ing] to understand the material" so that it becomes real to us. Just like learning a language, in which we start to start learning to speak and write a language by...speaking and writing a language! For bar takers, that means in this second stage that we make our own personal condensed notes or flashcards or other study tools to "help...get the information into [our] head[s]." (Here's a snappy suggestion: Just take hold of one (1) blank piece of paper, and, referencing your lecture notes in hand, write down, scribble, flowchart, and doodle the major take-aways from that day's lecture. Note: Don't let yourself get bogged down by trying to re-write your entire lecture notes; rather, focus only on big picture concepts because people pass the bar based on the big picture principles rather than the nitty picky details.). [about 1 hour or so per day].
The last step takes real bravery, discipline, and honesty too. And, it's vital for your learning. Start right away that very day, each day, by digging into actual bar exam questions, working through them one by one, using notes and outlines freely, and then reviewing practice answers afterwards to assess what went well along with concrete ways to improve with future practice problems. Here's a key tip for your practice sessions: Be super-curious when you miss a question; poke back around to the fact pattern - like a detective - to figure out whether you missed the question because you missed a rule or, more likely, you missed an important trigger fact in the fact pattern. So, for example, if you write a picture-perfect IRAC essay but then notice that the problem didn't involve that rule, go back and figure out where in the facts the correct rule was triggered. In short, don't just test yourself through practice problems but rather use the opportunity to learn through practice problems. [about 3 to 4 hours or so per day]. (Then, as illustrated by Professor Christopher's diagram, the next day we begin again with another bar review lecture.).
The great news is that throughout this process, while you might not feel like you are doing much learning, you are really dancing with the materials, making them your own, developing and finessing your critical reading, organizational, and writing skills. In short, you are productively on the path to successfully preparing for your bar exam.
So, in the midst of this bar review season, take courage. Indeed, be of good cheer, as the holiday saying goes, because true learning takes its shape in you - step by step - through the daily process of recursive learning - (1) reviewing, (2) working to understand, and (3) then testing yourself through practices problems. To be personal, I wish I had known this at the outset of my bar prep season. So, feel free to step out of the "line" and learn! Oh, and congratulations again on your graduation from law school! What a wonderfully momentous accomplishment! (Scott Johns).
December 20, 2018 in Advice, Bar Exam Issues, Bar Exam Preparation, Bar Exams, Encouragement & Inspiration, Exams - Studying, Learning Styles, Stress & Anxiety, Study Tips - General | Permalink | Comments (0)
Monday, December 17, 2018
First semester finals are over. Joy, fear, anxiety, or some combination of all of those feelings are setting in. I send my 1Ls an email providing some guidance for the next few weeks. My email does tell students to ignore finals, but as Nancy’s post last week suggested, taking 10 minutes to cry over the final is also good advice. After that 10 minutes, my biggest suggestion is to relax and enjoy time with family. The relevant portions of the email are below. Do your best to enjoy your break!
“As you learned this semester, law school is extremely rigorous and stressful most of the time. Staying disciplined, studying, and taking exams is an accomplishment. Most people could not endure law school, so you should commend yourself. The art of overcoming stress and moving on to the next challenge requires positive reinforcement from both others and yourself. Every time you make it through a difficult task, overcome an obstacle, or reach a goal, celebrate your accomplishment. Many of you may not believe me for a few years, but law school only begins your difficult career. Taking the bar exam crams the stress into a short amount of time. After passing the bar, you get to practice law, which is even more time consuming and rigorous than law school. Everything you do now to create work/life balance, manage stress, and maintain sanity will be invaluable when you enter the legal profession. So, CELEBRATE (safely) and CONGRATULATE YOURSELF!!!
Many students ask what to do during the break to prepare for next semester. I generally suggest a few things. First, FORGET YOUR EXAMS. It doesn’t matter what you wrote now. You can’t change them. Don’t talk to other students about them. No one wrote a perfect answer and many students find “phantom” issues. Even if you completely missed an issue (which EVERYONE does), you can still get a decent grade. You turned in your test and can’t change your answers, so move on to my second suggestion. My second suggestion for the break is RELAX!!! You had a long, tiring semester. Spend time with family who haven’t heard from you in months. Spend time with your kids that haven’t seen you since finals started. Turn your cell phone back on and watch recorded episodes of your favorite TV Show. You need energy next semester, and now is the time to recharge. Lastly, you can read a book to help next semester. You can either choose a book about learning or a book about writing exams for law school. I don’t suggest trying to read them all because you will burn out before next semester starts. Try to just pick one. You have many options depending on what area you want to improve in. Books that I like for learning/general improvement are: Make It Stick, How We Learn, and Grit. There are numerous law school specific books for each of the different skills needed for success. I like How to Succeed in Law School, Expert Learning for Law Students, and Reading like a Lawyer. You have more context for those books now that you have been through a semester.
You accomplished great things over the past 4 ½ months. Enjoy your accomplishment (safely), and I can’t wait to see all of you again in January. Enjoy the break!”
Wednesday, December 12, 2018
It's inevitable. Coming out of any law school exam, someone will know they messed up -- or feel like they've messed up. The list of things that can go wrong in an exam seems endless, from random quirks of fate to "I knew better than this but did it anyway" scenarios. Sometimes folks already have the sinking feeling coming out of the exam; others are filled with confidence over their performance until they start discussing the exam with others.
If the person who messed up was you, what do you do?
Unlike a lot of people, I'm not going to tell you to ignore that sinking feeling. You want a pity party? -- go ahead and throw it. Whether you know you messed up or whether you merely feel bad about your performance, it's disingenuous for those of us on the outside to tell you not to worry. It's like someone sitting in a warm dry house advising you not to panic when you get lost in the woods. So feel free to wallow in your misery, as long as you follow these ground rules:
- Only one person is invited to the pity party. You.
- You have ten minutes to wallow. Period.
Your ten minutes is up. Feel better? I thought so. Your emotions may still be running high, however, going in one of two directions:
- It's not really my fault. The professor / the proctor / the tech person / the ________ (fill in your favorite scapegoat) messed up. I shouldn't have to pay for their mistakes.
- I am such an idiot. I don't belong here. I deserve to be thrown out. I should just disappear and not come back next semester.
Whichever is the case, now is your time to act like a lawyer. Be calm, be analytical, and spend your energy on solving problems, not on brooding about them.
Let's say the problem was caused or exacerbated by another person's actions. Was it a problem that's likely to recur? If by speaking up you can help prevent it from recurring during this exam period, by all means speak up, recognizing as you do that intelligent persons of good will can make mistakes. So focus not on blame -- "S/he did this which messed up my exam!" -- but on identifying a problem which might affect you or other test-takers in the future and on suggesting ways to prevent the problem.
Can you identify something discrete you personally did wrong? ("I skipped Question 5 but I didn't skip the scantron bubble for that question, so all my multiple choice answers are off by one"). After you have finished the exam, there will rarely be a chance of fixing the problem for that particular exam, but don't hesitate to calmly explain your problem to the exam coordinator in case there is a solution you hadn't considered. Communicate only with the exam coordinator -- writing a direct note to the professor, either in the exam itself or by a message after the exam, is never fruitful and may actually constitute an honor code violation by violating anonymity. Knowing that you made mistakes, accept yourself as a human, learn from the mistake and vow to not repeat it, forgive yourself, and move on.
In addition to things you know you messed up, you may feel you messed up based on your emotional reaction coming out of an exam ("I just flailed around and did awfully") or based on hearing others talk about the exam ("I didn't spot the same issue everyone else saw in the second essay"). Especially for 1Ls, neither one of these is an especially reliable way of analyzing your performance. Group post-mortems often get off track and usually freak people out unnecessarily, and your subjective reaction to an exam is rarely reliable. Step back from your own emotions (your pity party is already over, remember?) and view your reaction from the vantage point of a sympathetic outsider. Acknowledge that your very emotion shows that you care deeply about what you're doing. and practice self-compassion.
If you have a tendency to mull over your mistakes, real or imagined, now's the time to learn the lawyerly skill of harnessing those feelings toward improved performance. If you are still in the middle of exams, think about how you can apply what you learned from your mistake towards doing better on the next exam. If your semester's exams are over, practice empathetic self-reflection where you identify the type of mistakes you tend to make during exams and brainstorm ways of preventing those mistakes. Realize that worrying cannot help your grade: it will only distract you from paying attention to those ideas, experiences, and relationships you should be concentrating on now. Know that your both your successes and your mess-ups have the potential to move you along the path of becoming a better lawyer. (Nancy Luebbert)
Saturday, December 8, 2018
Hat tip to Susan Wawrose at the University of Dayton School of Law for alerting us to the third installment in the ABA's podcast series on law student well-being. The podcast (entitled Episode 3 on the web page) includes three parts (why a law student would benefit, ways to get started with mindfulness, how to overcome roadblocks) and a bonus 3-minute mindfulness exercise. The link to the ABA web page that has all three installments in the series is: ABA Law Student Well-Being Podcasts. (Amy Jarmon)
Thursday, December 6, 2018
Want to power up your learning to improve your final exam performance? Well, counterintuitively, that means that you just might need to take a break - a brief respite for your brain - by working out your heart instead.
You see, research shows that vigorous exercise, even if just for 10 minutes right prior to an exam, improves academic performance. And, there's more great news. The research also shows that exercise boosts your mood and optimism, and that, in turn, leads to more resiliency in learning, which, in turn again, improves academic performance. In short, exercise is in the center of a great big circle of connections between your body, your heart, and your mind.
So, rather than just focusing all of your energies in preparation for exams on your mental work, let your body and heart take up some of that cognitive load as you sweat it up a bit. Feel free to hit the trail, or the bike, or just run up and down the stairs at your law school every hour or so. Indeed, as the research shows, even just a 10 minute exercise brain break right before your next exam can increase your exam performance. Not convinced? We'll, here's a handy article by Marcus Conyers, Ph.D., and Donna Wilson, Ph.D., entitled "Smart Moves: Powering up the Brain with Physical Activity." http://www.kappancommoncore.org
So, why not follow the evidence to help boost your learning by taking frequent exercise brain breaks - breaks that tap into the power of your whole self - your mind, body, and heart - to best optimize your learning. And, rest assured as you take your brain breaks while exercising, the science is behind you. (Scott Johns).
Tuesday, November 20, 2018
Law students about to head into their final exams -- especially those in their first year, facing this challenge for the first time -- are often weary, anxious, and despondent. Simultaneously burdened with too much to learn and too little time, they may feel like the universe is conspiring against them. And some of them, in a sense, may be right.
The tilt of the Earth's axis and its movement around the Sun are responsible for our seasons, and, by chance or design, fall semester exams take place just as we are sliding into the winter solstice -- the day on which we in the Northern Hemisphere have the shortest day and receive the least amount of sunlight. Two years ago, when I was teaching in Southern California, we received just under 10 hours of daylight on the solstice (December 21). Now that I'm teaching in Buffalo, New York, we're already down to only 9 1/2 hours of daylight, and we'll get down to only 9 hours of light and 15 hours of darkness before the sun starts coming back. It is little wonder that folks in the higher latitudes experience more instances of Seasonal Affective Disorder.
Seasonal Affective Disorder, or SAD, is a recognized mood disorder in which sufferers experience mood distortions -- most commonly, depression -- at particular times of the year. Most commonly, these symptoms peak in the wintertime, and while the causes are not well understood, it seems very likely that the diminished amount of sunlight is a key trigger. This may explain why SAD affects 8-10% of the population in states like New Hampshire and Alaska, but only 2% of the population in Florida. Overall, about 6% of U.S. adults suffer from full-blown SAD, and another 14% suffer a milder, "subsyndromal" version. This means that, on the average, one out of every five people -- including your students -- are clinically affected by the oncoming gloom.
When SAD manifests, as it usually does, as a type of depression, its symptoms (and those of its milder variant) are those of depression, including low energy and motivation, feelings of helplessness, withdrawal from social interaction, oversleeping, and difficulty concentrating or making decisions. Any one of these symptoms would be a serious obstacle to success on final exams. To have to bear a whole cluster of these decisions, on top of the intensity, stress, and anxiety normally experienced in law school, can be potentially debilitating.
Thus, it is important for Academic Success educators to observe their students with particular care as the autumn gloom descends. Students who had seemed poised and optimistic in September might start to appear morose, scattered, or resigned as finals approach. Of course, finals themselves can have a depressive effect, and after a semester of hard work, even the most buoyant student might be observed to sink a bit. That is normal. But if a student seems to be so down that it is pervasively affecting the quality of their work, consider offering the following suggestions:
- Light: One reason that the diminished rays of the sun are felt to be a key trigger is the strong evidence that light therapy -- regular additional exposure to direct sunlight or to specially-made artificial lamps -- has a beneficial effect. Spending additional time outdoors can provide the necessary sunlight supplement -- if winter clouds do not interfere. If the weather doesn't cooperate, light therapy lamps can be purchased online or in department and specialty stores for less than $50. Either way, 30 to 60 minutes of extra light every day -- something that might be easily done while studying -- often helps SAD victims recover (particularly when combined with other treatments, as listed below).
- Exercise: Moderate aerobic exercise also appears to be helpful, particularly in combination with light therapy. A walk outdoors or a 20-minute run on a treadmill under the glow of a light therapy lamp provides better relief than just light alone. Exercise provides other benefits to students approaching the finals ordeal. Regular workouts can alleviate stress and improve concentration, so a student with SAD who exercises and uses a light therapy lamp every day may actually end up in a better position than they were before they were affected by SAD.
- Professional treatment: Students contending with a particularly nasty manifestation of SAD -- one that does not improve with light therapy and exercise, and that causes feelings of worthlessness or thoughts of self-harm, or prevents a student from attending class or from undertaking basic preparation for exams -- should be referred or encouraged to seek professional help. Counselors can provide talk therapy, and physicians can prescribe drugs that, in conjunction with exercise and/or light therapy, may provide additional help in overcoming SAD.
The good news is that, since SAD is seasonal, almost everyone suffering from it in November will probably get over it by February, as the days start to lengthen after Christmas passes. But to help them get to that place, we sometimes have to help students recognize that they are suffering from a treatable condition, and we have to help them find the solution that works for them.
Friday, November 16, 2018
During the demands of final papers, exam review, and practice questions, it is very easy to become so focused on intellectual "in your head" matters that all other aspects become blurs. Classmates who are typically collegial can become overly competitive. Intellectual discussions can degenerate into power struggles to show who is superior and always right. Unintended insults, judgmental put-downs, and clipped responses reflect the stress of the semester as students speak without thinking.
Students handle the end-of-semester stress in differing ways. They can either give in to negativity or persevere with positivity. By taking intentional steps, it is possible to stay personally positive and contribute to a positive environment for others. Our thoughts and actions can build our resilience, grit, calm, and focus.
- Count your blessings. As a law student, you have the privilege of gaining professional skills that will make a significant difference in the lives of your clients in the future. You will be their hope in crises and injustice. You will be someone's hero many times over your career.
- Make a list of encouraging quotes, scriptures, or sayings to read first thing in the morning and last thing at night. These positive affirmations will frame your mindset at both ends of the day.
- Model collegiality for your classmates: offer your class notes to a student who has been ill; share information about a good study aid; explain a legal concept to a confused classmate; compliment a classmate on a good in-class answer.
- Spread random acts of kindness throughout your day: hold the door for a classmate loaded down with books; buy a soda for the student behind you at the vending machine; smile and say good morning to a tired classmate; offer a slice of your pizza to someone with no lunch.
- Say "please" and "thank you" often throughout the day. And look the person in the eye when you do so. Politeness can get lost in the rush, but it is gold to those who are recognized in the process.
- At the end of the day, make a list of three things you did for others - however small they may be. Your humanity towards others will warm your heart and contribute to your outlook.
- Take care of yourself. Positive coping results from regular sleep every night, healthy food, and exercise. You are part of an academic marathon and not a sprint right now. Pace yourself.
- Take control of what you can control, and let the other things go. None of us is perfect. We can only do our best each day under that day's circumstances. The next day is a new start, and we can embrace that new start for it's possibilities.
- If you start to give in to the stress, get some help. Talk to family. Check in with a professor, dean, or ASP professional to get your perspective back and make a study plan.
Best wishes for the remainder of the semester. (Amy Jarmon)
Monday, November 12, 2018
Last Friday, I experienced the pure joy of coaching an 8 year old flag football game at 9:30pm with the wind chill in the 20s. The temperature was the same for both teams, but everyone in attendance could see the difference between how the teams handled the conditions. One team bounced around with everyone running to the ball, celebrating, and having a good time. The other team shivered, jogged, and repeatedly shook their hands to try to stay warm. Most of those kids couldn’t feel their hands by the 2nd quarter, and as you would guess, they lost the game.
I witnessed a similar event a few years ago during the College Softball World Series. In the final series, Oklahoma played Alabama. Oklahoma dominated teams most of the year. They had the best hitter and pitcher in the country. During the second game of the best of 3 series, the heavens opened and rain drenched everything. Oklahoma made a few bad plays, and then, the umpire delayed the game until the rain subsided. During the rain delay, Alabama bounced around their dugout. They danced and sang through the whole delay. Oklahoma mulled around with their heads down from the couple bad plays. After the rain delay, Alabama trounced the Sooners. They subsequently won game 3 the next day for the National Championship beating an Oklahoma team that the following year with similar players was arguably one of the best in history.
The ability to respond to undesirable conditions is critical from elementary school to elite athletes. The same is true for law school final exams. The conditions will be similar for most students. Everyone is taking the same exam. Everyone has the same amount of time between the last day of class and final exams. Some people may have slightly different obligations during finals, but most students are on a similar playing field for finals. The ability to embrace the situation can make a difference in performance on finals.
I tell students every semester that final exams are as much a test of mental strength and discipline as they are a test of legal knowledge and analysis. The key is to embrace the grind of finals. Complaining about the exam, the amount of time, or unknown expectations is the equivalent of shivering on the field. Letting those thoughts creep in gives the final exam the edge before the test begins. Complaining students are the ones sleeping on coaches around the law school or finding every excuse necessary to not study. Making the final harder than it is becomes a self-fulfilling prophecy causing lower performance.
Overcoming negativity makes an impact of scores. Michael Hunter Schwartz developed a program for pre-law students many years ago where he described how high self-efficacy leads to persistence. Worry and other negative emotions don’t promote self-efficacy and tend to harm persistence. Persistence, or the grind, is what leads to improvement and readiness for exams. Final exams are hard. There is an unknown element. However, that is true for everyone taking the exam.
Embrace the grind by planning. As I have posted before, writing down a detailed monthly, weekly, and daily plan can make finals more manageable. The unknown causes some people stress because of the lack of control. Take that control back with a plan of attack. Plan for the whole study period from now through the last final. At the beginning of each day, plan the hours of the day. Take adequate breaks to mentally refresh and eat. Finish at a reasonable time each night. Grab momentum with the areas you can control, which should alleviate some stress. Remember, the vast majority of exams will come from material discussed in class. Exam period is a review of what everyone already experienced throughout the semester.
Start each day with positive affirmations to stop the negative emotion spiral before it starts. Be confident with statements about the ability to succeed, completing the necessary tasks, and overcoming obstacles. Focus affirmations on the study process or overcoming obstacles. Statements about the ability to study hard material or previous hard tasks can motivate anyone to push through the tasks for that day. Exams are a culmination of studies throughout a long period of time. Don’t focus affirmations on final exam results, which is unattainable on a given day. Focus on attainable goals for that day, for example “I am always able to recite sections of my outline after a few hours of study. I will be able to do that by lunch.” Affirmations on attainable goals builds over time for an impact on final exams.
Hard conditions can affect anyone, and law school exam conditions are difficult. However, planning and positivity can put everyone in the best possible position for success. The goal is to be able to walk into the exam with your head up and not shivering. Embrace the opportunity to demonstrate your ability on each exam.
Thursday, November 8, 2018
I'm worried about final exams. To be frank, I don't like the word "final." I have to say that the word "final" particularly bothered me in my previous aviation career, where air traffic controllers clear airliners for the "final approach to runway 18." I just didn't want that to be my final approach. I hoped to have at least a few more years in aviation.
But, here's the biggest rub that I have with final exams.
Because law students frequently have only a few mid-term exams to assess their learning (and to therefore improve before their final exams), final exams are, well, too final to make an improvement in one's learning. In fact, I suspect that the term "final exams" tends to lead to more of a fixed mindset with respect to our law students' learning. They get their grades, often weeks after finals, and most students - it seems - never review their exams to identify what they did that was good (nor to look for ways to improve in the next round of final exams).
Nevertheless, it's not just final exams that can be a hurdle in improving learning for the future.
Our feedback can be too.
As summarized by Jennifer Gonzalez in her blog "The Cult of Pedagogy," where she writes that "[r]eally, the experience of school could be described as one long feedback session, where every day, people show up with the goal of improving, while other people tell them how to do it. And it doesn’t always go well. As we give and receive feedback, people get defensive. Feelings get hurt. Too often, the improvements we’re going for don’t happen, because the feedback isn’t given in a way that the receiver can embrace." https://www.cultofpedagogy.com/feedforward/. In short, feedback might just stunt growth, which is another way of saying that feedback might stunt learning.
But, there's great news!
Rather than providing our students with more and more feedback, we might consider providing them with "feedforward" instead.
But first, here are the problems with feedback. Feedback focuses on the past. It focuses on the negative without necessarily providing ways forward to improve. It focuses on being stuck rather than helping people get unstuck. Indeed, as outlined by Jennifer Gonzalez, there are at least three ways that feedback hinders learning:
• First, citing to author and educator Joe Hirsch, feedback shuts down our "mental dashboards." In my words, it crashes our brain. That's because the "red marks" and the many comments to "change this" or to "change that" tend to cause us to believe that all is lost; there's no hope for us. We just don't see a way forward because, frankly, we are stunned with a horrible feeling that we just don't get it...and never will. We are locked in the past. The future is hidden from us.
• Second, citing again to Joe Hirsch, feedback tends to reinforce negative thoughts because the comments tend to lead us to believe that we are stuck in a sort of "learned hopelessness" in which we cannot change our future. Rather than building a growth mindset in our students, feedback that is focused solely on what our students have done in the past creates a fixed mindset with students believing that there's little that they can do to improve their learning in the future.
• Third, citing again to Joe Hirsch, we tend to approach feedback with a single-minded crystalized focus to see what grades or marks or numbers we received (rather than seeing feedback as providing us with helpful and hopeful positive tools forward to achieve better grades in the future). In short, despite all the feedback given, students tend to see and internalize their grades first, and, because first impressions lead to lasting impressions, feedback often falls short in producing improvements in learning for future assessments. Too often, the grades on feedback crystalize into final exam grades, too.
In contrast, "feedforward" focus on the future. It takes the work of today and provides insights, comments, and tips framed in a communicative, generative way that leads to improvement in the future. It is forward looking; never backward looking. Feedforward believes in the future - a bright future - and provides particular ways for our students to move forward towards that future of improvements in their learning.
So, what is "feedforward?"
Simply put, it's coaching students about their current performance with heart-felt questions and insights that get our students thinking for themselves about how they can improve their learning for the future.
Curious? Rather than going through the six steps in providing helpful "feedforward" to our students, let me just point me to you the steps as cited by Jennifer Gonzalez in her blog article about "Feedforward," available at: https://www.cultofpedagogy.com/feedforward/.
And, one last thought...
As academic support professionals, this month is a great opportunity. In particular, nothing really needs to be "final" about final exams. That's because we can provide our students with opportunities to receive positive "feedforward" well before final exams - via practice exams, exam writing workshops, academic support small group tutoring sessions, etc. - such that our students will learn to improve well before they take their final exams. Indeed, the key to a great final exam experience is to have great "feedforward" experiences on the way to taking final exams. So cheers to the future - our students futures! (Scott Johns).
Wednesday, October 31, 2018
A note arrived in my office last week. It said, "Thank you for believing in me when I didn't believe in myself. I do belong here." I doubt the most experienced academic support professional could have received such a message without getting a little misty-eyed. For me, this note helped turn a sad time into a day of joy.
Later that same day, I talked with a law student who has earned a Ph.D. in the university of hard knocks. If ever a person had reason to be embittered by the hand life dealt her, it would be this woman, but instead she radiates joy. She's a true friend to her classmates, the custodians, the dean, and everyone in between. She mentioned keeping a gratitude journal, so I asked about it. She told me the last thing she does every evening is write in a gratitude journal. She keeps each entry short -- just a sentence or two. She said the gratitude journal profoundly affects the way she looks at life. "I won't lie," she said. "Some days it's been hard to write something in there. But even on the worst days there's always something to be grateful for. It makes my life better to think about this every day."
Gratitude transforms lives -- not only the life of the person receiving the thanks, but even more the life of the person who is grateful. Consciously choosing joy can change your outlook on school, work, and life.
Most of us entered law school (whether two months or forty years ago) because we wanted to use the power of the law to help others. But law school and law practice have a way of dragging us down. Stress piles on -- from lower-than-expected evaluations, heavy workloads, pointed critiques, looming deadlines, and the sheer mental effort of constantly being logical and analytical. We end up swathing ourselves in a suffocating miasma of negativity. Our optimistic mission of serving others devolves into a pessimistic, painful grind of grubbing for grades instead of reaching for understanding, of grasping for prestigious positions rather than seeking opportunities to be of service.
Like the penetrating sunshine, consciously practicing gratitude can help dispel the miasma by recharacterizing our experiences. An extra-long homework assignment turns from a chore into an opportunity for effective reading; a heavy work assignment turns from a burden into a chance to practice efficiency. Professors' comments in class turn from cutting criticisms into helpful critiques which will help us become better lawyers; interactions with challenging peers turn from obnoxious situations into practice in people management skills.
In a famous TED talk, Amy Cuddy discusses how adopting a powerful body language can actually help you feel and act empowered. Likewise, consciously spending time being grateful will turn you into a happier, more positive person. In her practical book, A Short & Happy Guide to Being a Law Student, Paula Franzese writes, "Say thank you countless times a day. . . . Your day will move in the direction of your focal point. Focus on the good in your midst and the good to come."
Here's a concrete suggestion for 1Ls worried about fall semester finals -- look forward to your finals with gladness instead of trepidation. After all, you don't have to take exams. You get to take exams. You have the opportunity to strut your stuff by showing your professor -- and yourself -- how much you have learned in a few months and how far you have progressed on the road of thinking, writing, and acting like a lawyer. And that is definitely something worth celebrating. Write it down in your gratitude journal and rejoice in another great day. (Nancy Luebbert)
Sunday, October 28, 2018
For the past two weeks I have met many new first-year students. Feedback on midterms, practice questions, or legal practice assignments has begun. So students who previously had thought they did not need assistance - or at least were delaying assistance - have taken the plunge. Some have realized they need better time management routines for more study time. Some have realized they definitely need to start or catch up on outlines. Some have asked about IRAC or multiple-choice assistance. Some have realized that they need to curb procrastination. Some are just anxious and wondering if they should be more or less anxious than they currently are.
Other students, both 1L and upper-division, are returning for 10,000-mile checkups. We are tweaking their previous time management routines for more study time now that they are more efficient and effective at class preparation and outlines. We are exploring the different tasks that all make up exam review. We are discussing how to condense their outlines into attack outlines or how to add visual organizers for some learners. Memory strategies have been a popular topic with these students who have made progress on black letter law, but have a few stumbling blocks. 2Ls and 3Ls are thinking ahead to exam schedules and evaluating courses in that light.
And with both the new and returning students, there are good measures of dispelling rumors about grading for 1Ls (the grapevine is especially bizarre right now), praising progress and wise decisions, and motivating the procrastinators. In some cases I am dispensing tissues, in some cases packets or handouts, and in some I just let them vent before we look for solutions.
The students who are pretty much on target leave with renewed confidence and strategies. The students who are catching up but not in critical shape leave having regrouped. The students who are getting close to a danger zone leave with a reality check and a plan - and usually follow-up appointments.
For now, ASP is a bit like a local medical clinic: some need vitamins or a bandaid; some need an ace bandage or cold remedy; a few need crutches or a walking boot. Right now no epidemics or massive injuries have crossed the threshold.
But I have been doing ASP enough years to know that the triage cases will show up right at the end - just before and after Thanksgiving Break. And like any good ER doctor, I will try everything I can to save the patients. (Amy Jarmon)
Thursday, October 25, 2018
My dog loves rabbit trails. Luckily for the rabbits, at least thus far, the trails have never led to rabbits.
That got me thinking about exam writing and rabbit trails.
But first, a bit of background...
I find that most bar exam takers who do not pass the bar exam write brilliantly well-organized professional essay answers. The rules are crisp; the IRAC is polished. But, in most cases, some of the answers are unresponsive to the fact patterns at hand. In other words, its as though the fact patterns were irrelevant to answering some of the particular essay questions. Instead of finding the "rabbits" in the essays, they followed "rabbit trails" leading to no where. And, it's often that way on law school exams too.
Take this summer's first essay question on the Uniform Bar Exam (UBE), available free-of-charge at https://www.ncbex.org/July2018Essays.
The fact problem was set in the world of constitutional law. As specified in the fact problem, the essay expressly indicated that US Supreme Court had recently found that Congress was within its power under the interstate commerce clause (ICC) to punish marijuana use. On the other hand, the fact problem indicated that a number of states were (and have) legalized marijuana use both for medicinal purposes and recreational purposes.
Frustrated by state decriminalization of marijuana, the fact pattern specified that Congress enacted a federal drug abuse prevention statute. Pertinent to the essay problem, one section of the statute required state law enforcement officers to investigate whether anyone within their custody, even on matters unrelated to controlled substance violations, was under the influence of marijuana and then make reports to the federal government. The other section of the statute, as specified in the fact pattern, provided that Congress would restrict federal law enforcement grants to states which decriminalized marijuana use. The fact pattern went on to indicate that a State had recently decriminalized marijuana use and would therefore be subject to a loss of approximately $10 million dollars in annual federal grant money out of a state budget of about $600 million total of state law enforcement spending. Based on this fact pattern, bar exam applicants were told to analyze whether each of these two statutes were constitutional as applied to this particular state's situation.
Let's deal with the first statutory section - the federal requirement ordering state law enforcement officers to conduct investigations and make reports. The key to figuring out where to go, i.e., to avoid the "rabbit trail," was to write out a good issue statement, perhaps as follows:
"The issue is whether Congress had constitutional authority when it requires state law enforcement officers to conduct investigations and make reports unrelated to state law enforcement purposes."
In this fact pattern, there's no issue that Congress did not have the commerce clause power because the fact pattern foreclosed that issue, once and for all, with its initial recognition of US Supreme Court precedent specifying that Congress had the power to regulate marijuana use. And, if Congress has the power to regulate marijuana use, it certainly has powers related to that under the "necessary and proper" clause. So, the focus must be elsewhere in answering this problem. As the issue statement makes clear, it's a federalism issue, namely, whether Congress can force states to do the work of the federal government. That's a 10th Amendment issue. In brief, Congress is limited in its ability to commandeer the states, which is precisely what this first section tries to do. It's unconstitutional, at least in my reading of it.
Let's take on the second statutory section - the federal spending restriction of law enforcement grants towards states that decriminalize marijuana. Once again, the key is to start with a sharp issue to avoid the "rabbit trails." Here, we might write as follows:
"The issue is whether Congress had constitutional authority when - as applied to the state at hand in this fact pattern - Congress cut off a federal law enforcement grant in the amount of $10 million out of a state budget of $600 million in state law enforcement spending."
Do you see the issue? It's lurking in the facts stated in the issue statement. Once again, this is a federalism issue. There's no issue that Congress can't spend money for the public welfare, particularly because the state in this fact pattern wants to receive the federal grant money. Rather, the issue is whether these "strings" constitute commandeering of the states by Congress in violation of the 10th Amendment. One could probably come out either way, but I think that the better answer based on Supreme Court precedent is that spending restrictions to encourage states to enact policies and law that comport with federal law are constitutional as long as states have a real choice as to whether to enact new favorable state laws to the federal government or give up the spending grants. In this fact pattern, the amount of money that the state will lose as a result of decriminalization of marijuana is only a small percentage of the entire amount that the state spends on law enforcement, which means that the state has a real meaningful choice to take the federal grant and comply with federal objectives or to refuse the federal grant and still have significant state law enforcement funding. It's constitutional, at least in my analysis.
Despite the fact that this essay problem was centered on federalism issues based on the 10th Amendment, a number of people talked about the commerce clause or equal protection concerns, neither of which were raised by the fact pattern. I can understand why. Bar takers have memorized so much law that they tend to put all of the law that they can think of without thinking through the problem first of all, especially because of the time pressures. But, I have a tip that can help preempt that sort of "rule dump." It's writing out an old-fashioned legal writing issue statement before beginning to write.
Here's what I mean by an old-fashioned issue statement. As set out by Ruta Stropus and Charlotte Taylor in their book "Bridging the Gap Between College and Law School," a great issue statement can take on the form as follows:
"The issue is whether [legal subject-verb-object] + when + [material facts]."
Take a look back at my issue statements. Do I start with the legal issue? Do I have the legal actor as a noun, a verb, and the legal object, here, as to the unconstitutionality of congressional action? Do I then add in a handful of hand-picked material facts from the fact pattern? You bet. In my own case, if I don't take time to work through crafting such an issue statement, I'm lost in most essay problems. I just start writing in circles, moving around in "rabbit trails" so to speak, without really understanding the fact pattern at hand or the questions presented in the essay scenario. In short, I ramble.
So, whether you are a bar taker or a law student preparing for mid-term exams, take a pause before you begin to write out your essays. Hunt for some "red hot" material facts to put down in paper as an issue statement. After all, it's what lawyers do best; they spot issues, the precise issues that are needed for solving their clients' problems. So, as you learn to think like a lawyer, practice like a lawyer too by taking time out to craft, identify, and precisely specify the exact issues posed in your midterms, final exams, or your bar exam essays. It's worth the time. Indeed, you'll be mighty glad because you'll find that you'll avoid the "rabbit trails" found on most essay exams and instead you'll be finding the rabbits themselves. (Scott Johns).
With apologies to T.S. Eliot, April is not the cruellest month -- October is, at least for first-year law students. The first heady glow and excitement of arriving at law school has faded. Many students experience the shock of no longer being straight-A students as legal writing and midterm grades roll in. The workload steadily increases, as do professors' expectations. For 1Ls who feel like they are barely treading water to keep up with class preparation, it seems downright oppressive to hear they should be adding practice problems, outlining, and other long-term study methods to their weekly schedule, not to mention attending professional events and polishing their resumes to apply for summer internships and externships. Added into this evil brew can be depression, anxiety, substance abuse, loneliness, or any number of other reactions to stress.
What's a 1L to do? The first thing, as Dean Jarmon observed last week, is put aside perfectionism and instead focus on realistic goals. Establish routines, whether you do so by sheer will power, calendaring, habit stacking as discussed by Professor Foster, using resolutions charts, or some other method.
But what if, after all your diligent work, you still feel lost, or confused, or overwhelmed, or panicked? What do you do?
Ask for help.
Many law students are reluctant to ask for help because they think it shows weakness. Nothing could be further from the truth. Asking for help is a professional skill which good lawyers practice constantly. An associate asks a partner for advice on how to handle a particular client. A lawyer consults the clerk of the court in advance to ensure filings are done correctly. An experienced lawyer calls bar counsel for advice when a thorny ethical issue emerges. A lawyer who recognizes that anxiety disorder is affecting her/his performance gets in touch with the state's Lawyer Assistance Program. All of these are everyday examples of lawyers asking for help. Appropriately asking for help sends the message, "I care enough about this to spend time learning to do it the best way I can, and I value your expertise."
If you are experiencing a mental health or substance use crisis, ask for help as soon as you realize you have a problem. While you can go straight to your institution's counseling center or your state's Lawyer Assistance Program, it is also appropriate to talk with any trusted person at your law school. Not only do they know you personally, but many faculty and staff have taken Mental Health First Aid training and are equipped to assist you. Likewise, talk with someone immediately if illness, injury, or major family issues have affected or may affect your ability to do the work of a law student. You will get not only a sympathetic ear but also practical suggestions.
Be just as professional in asking for help as you are in other aspects of law school life. Figure out what you need and frame your request narrowly. Professors don't react well to a student coming into office hours saying, "I don't get torts," but they will gladly work with you if you narrow your problem to "I've gone over the casebook and the CALI lessons, but I'm still confused about the causation rules involving multiple actors." In particular, your academic support professor is an invaluable resource to help you balance the academic demands of law school with the equally compelling demands of being a whole human being.
Most faculty and staff are not only willing but happy to help you if you are respectful of them and the demands on their time. But one circumstance bears special mention -- what we call "forum shopping" at my law school. Forum shopping occurs when a student asks one faculty or staff member for help but doesn't like the advice s/he receives. Without telling anyone that s/he asked another person first, the student then asks the identical question to a second person, and sometimes a third and a fourth. Forum shopping shows an extreme lack of respect for faculty and staff. Not only does the first person feel disrespected, but subsequent helpers can waste hours of time starting from ground zero when they don't know what guidance you've already received. Don't be afraid to seek multiple perspectives -- just let everyone know who you've asked and what advice you received.
Finally, don't forget to thank people for the help they've given you. This, too, is a mark of professionalism. (Nancy Luebbert)