Law School Academic Support Blog

Peer Pressure, Vaccine-or-Test Requirements, and Legal Analysis

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).

 

ASPalooza

Happy New Year!

I know that we are still basking in the (blue light) glow of the ASP sessions of the AALS annual meeting, but I wanted to make sure that I mentioned a few of the highlights (ones that I saw-I probably missed some important things since the AALS session schedule is like a Cheesecake Factory menu).

First, my amazing colleague at Suffolk University Law School, Sarah Schendel, was honored with the Trailblazer Award at the annual meeting of our section on January 4th. This was a richly deserved recognition of her scholarship and contributions to ASP! Also, we welcomed new leadership to our executive board and thanked our past leaders for their amazing work.

The Academic Support and Technology, Law and Legal Education Joint Program (Co-Sponsored by Pre-Law Education and Admission to Law School) panels on “Leveraging Technology to Increase Student Engagement in Online Courses” and “Who Should Own the Course Content Created for Online Delivery?” on January7th were informative and timely--considering that many schools will likely reopen remotely this spring (we are going remote for the first two weeks). Charles Calleros wonderfully explained the best practices to establish and maintain student engagement. I loved the idea of creating a more flipped experience with DIY videos paired with short quizzes that Martha Ertman discussed. Our own Louis Schulze’s methods of using the Zoom chat to empower students to be experts was incredibly interesting. The other methods he outlined to keep students engaged were really helpful as I organize classes for the upcoming semester.  Jane Grise’s discussion of how screens effect our reading and attention was something I will be absolutely be more cognizant of in planning my two weeks (hopefully!) of remote classes -she also presented us with an opportunity to get up and dance (well, she said to stretch, but it was a Friday and all).

The next panel on the ownership of created materials used in online delivery was eye-opening (and full of twists and turns). While the work-for-hire doctrine might make our scholarly writings and course materials (absent contractual provisions to the contrary), the property of the schools we work for since we are employees, the panelists (and some great questions from the crowd) have left me wondering who has rights to our created ASP study techniques and skills materials since these are mainly expressions of ideas and whether writing is actually within the scope of my employment. I will be looking at my employee handbook more carefully to determine our institutional intellectual property policies. I took three pages of notes on the applicable intellectual property law during this panel-and later this weekend, I’ll be sure to put them in outline form (little ASP humor).

All in all, I was reminded, yet again, of how amazing the ASP community is-we are intelligent, prolific, and generous.

(Liz Stillman)

New Perspectives

Raise your hand if you told your child to do something, they ignored you, and then 2 days later they thought someone else was brilliant for telling them the same thing (go ahead, raising your hand can be therapeutic).  Raise your hand if you provided a piece of advice to a law student, they didn't fully buy in, and then they "discovered" the same piece of advice later that semester from someone else. 

Most of us probably don't have another hand to hold up, so I will stop there.  I don't think ignoring our advice is malicious or failing to trust the speaker.  Sometimes, people need more persuasion to make changes.  Sometimes, a different way of conveying the same information helps people.  Either way, new or different perspectives help.

New or different perspectives help ASPers as well.  The regional ASP conferences are starting with registrations and calls for proposals.  I encourage everyone to think of a proposal and submit at least 1 this year.  You are doing amazing things in the classroom and individually with students.  Share that with the rest of us.  I understand many people worry they aren't doing unique things.  First, don't sell yourself short because you are creating unique experiences for students.  Also,  you may be able to provide a perspective others haven't seen or explain a different way to teach something that would help others.  Our community continually improves as we share ideas, activities, perspectives, and challenges together.  You can help contribute to that progress.  

We tell our students to stretch beyond their comfort zone.  I encourage many in ASP to stretch as well.  It will help you and many of us improve student experiences.

(Steven Foster)

The Magic Formula of Legal Writing

When you Google “magic formula,” you get a series of articles all referring to the “Magic Formula of Investing” which is based on a book written by Columbia University Professor Joel Greenblatt[1]. That formula is often defined on websites as, “… a simple, rules-based system designed to bring high returns within reach of the average investor.”[2]

The first set of 1L legal writing memos were due over the weekend. For our students, it was a closed objective memo involving essentially two issues, three cases, and one overarching statutory rule. I must have discussed and drawn the chart that accompanies my magic formula for legal writing easily twenty times in just the past week, in person on a 3x5 post-it note, or over Zoom. I have shared my formula possibly thousands of times over the years. I would describe it as a rules-based system designed to bring good analysis within the reach of the average legal writer.

This is the “magic formula” that I share with my students:

1. Start with a Rule. A well-synthesized, complete rule is the key to everything. Everything unspools from your rule. It shapes and orders your discussion of the cases and your analysis of the facts. The rule divides your small legal world into essentially yes and no. Some cases will fall on the yes side of the rule while others will be nos.
2. Your rule may come from more than one source. Cases, statutes, regulations etc. may all be relevant.
3. Do your research. You need to use cases on both sides of the rule divide.
4. Talk about cases in the past tense-they have no value but historical value. Precedent is about the past and how it shapes the decisions that will be made in the future (stare decisis).
5. Use the Facts, Holding, Reasoning (FHR) method of using cases in your writing. For example: In Claus, where a senior citizen was struck by a reindeer, the court held that the sleigh driver was not liable because plaintiff’s decedent was walking on the reindeer path. The court reasoned that "grandma" assumed the risk of walking on the path, and while the driver had less than ideal lighting conditions, a pedestrian on the path was not a foreseeable event. I know-I haven’t even decorated for Halloween yet and here I am putting a winter earworm in your head. I’m almost sorry.
6. While this is somewhat formulaic writing, you can control your narrative. We all teach this, but possibly in different ways. Here is where the chart below comes in handy. In paragraphs where you are explaining the law in your writing, think of this as the space where you place cases on a spectrum created by dividing your world by the rule (this would be E paragraphs in CREAC, and the first part of the A in IRAC). You should place your cases (using the FHR format) on this “spectrum” and then when doing your analysis later on (or soon thereafter in IRAC), put the facts of your current “case” on the spectrum as well. The place where I put the circle is where the facts in front of you go-this is the sweet spot-the facts are not a slam dunk “yes” like case 1, but better than case 2--while still staying on the side of the rule you want to be on. The court cases closer to yours are your positive analogies because the facts are more similar, and you distinguish the cases on the far side of the rule. You only create this “distance” by having a full spectrum. The key here is that you, as the writer, get to lay out the spectrum.

Honestly, this is probably old news to most of you. But on the off chance that this rules-based system brings good analysis within reach of the students you are working with, I feel it was worth putting out there.  Some might say there is no magic in legal writing, but as for me and grandpa, we believe.

(Liz Stillman)

 

[1]https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxla3JvbmVkZXNpZ258Z3g6MmI0OTZjZTI1OTNhZTMwNw

[2] https://www.investopedia.com/terms/m/magic-formula-investing.asp#the-bottom-line

Seasons of Law

A supermarket I go to occasionally has a little maze of seasonal items right at the entrance. This is a tricky way to entice you to purchase these colorful things at the beginning of your shopping trip when your cart is empty and/or perhaps a way to mollify any small child you have brought with you with something small to play with on the journey. Yesterday, when I arrived, I saw a sea of orange and black: candy as far as the eye could see. There were also some decorative scarecrows and rust colored “hardy mums,” (which I consider a challenge, but more on my lack of gardening skills in another post). In the middle of the maze, I saw a single display of popsicle shaped window clings, Whiffle bats, sunscreen, some mismatched kickboards, and s’mores skewers-all 50-75% off. Summer was on sale-despite the fact that there is at least another week of it on the calendar. I sighed and realized that we had actually already been in school for almost four weeks and the time had come for the seasonal shift from merely briefing cases to…(please read each of those periods as dun, dun, dunnn respectively): OUTLINING.

Now that students have covered at least one full topic in each class, the time has come for them to take those case briefs and carefully written class notes and knit them into a nice cozy outline for December exams or, more urgently, upcoming midterms. This is also a good time to start because it intersects with students learning how we use and talk about cases in their legal writing courses. The magic formula of how we use cases in memos and briefs: FHR (facts, holding, reasoning) is how they can incorporate the components of their case briefs into their outlines. This is really a win-win because they are practicing using the FHR formula for outlining in legal writing and vice versa. 

Now, I know you have probably discussed outlining at least twice already with students. We do it in a pre-orientation module, during orientation itself and have a class on it planned for the coming week. The number of times I say, “your outline should be rules based rather than case based” could be a drinking game at this point (not that I condone drinking while outlining as either effective or efficient).

How can we best communicate the message that it is currently prime outlining season to our students? I thought of the buzzer at the beginning of a swim meet heat, a ribbon cutting or even a giant banner, “START OUTLINING NOW!!!!” Maybe I should stand in front of the law school with a sandwich board that says, “Ask me about outlining-I’m not just an ASP professional, I’m a client!” Maybe we should perform, “Outlining the Musical,” with such tunes as:

“525,600 pages,

525,000 pages more,

525,600 pages

How do you make sense of a course in the law?”

Or even,

“Oh, it is time to start ‘lining,

Time to take a little of the briefs we’re writing,

Time to take time,

Because it’s already fall--exams are in just no time at all….”

(sincere apologies to Rent and Pippin).

Yet, we all know that no matter how or how often we sound the alarm at this point in the semester, we will still be talking with students who are just getting started in November. And while we will silently groan and do an internal face palm, we will advise those students to move as quickly as they can to ideally finish their hastily organized (but nonetheless helpful) outlines when classes end.

I expect that the next time I will need to think about getting students to begin outlining, the supermarket entrance will be aglow in red, pink and white: candy as far as the eye can see -- except for the candy canes in the center on sale.

(Liz Stillman)

Unmasking

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[1].

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[2] 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.

(Liz Stillman)

 

[1] 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.

[2] Intentional use of the passive voice.

Closing Night

Tonight will be closing night for my kitchen table classroom. The latest word from my school is that we will be teaching in person next semester, in our regular classrooms with the regular number of students. So, I will strike this set. I will pack up the books, papers, RBG and Kamala Harris action figures and bring them back to my “real” office in the next few weeks. I’ll store the mesh metal inbox and pen holder (that my nephew left behind when he finished college and didn’t want to drag back them to his home abroad) in the basement. I’ll unpack my box of “Zoom worthy” earrings and return the contents to my bedroom jewelry box. I don’t know what I will do with laptop stand, because I already had one in my office, but I’m sure I’ll find a place for it that will escape me when I need to find it again.

In the past 15+ months of this pandemic, I have used this table as my classroom, my desk, the venue for our Thanksgiving dinner (once) and our Passover seders (twice). I have shared this table with my adult daughter as she worked at one end while I taught my classes at the other. She even did a cameo of me on April Fool’s Day before she headed back home (she does a dead-on imitation of my Zoom classroom patter). I cleared space for my younger daughter to finish her college exams this spring when they were sent home a few days early because of an uptick in positivity. I watched my son literally crawl behind me (numerous times) to get to the refrigerator during my class so he wouldn’t be seen. I wasn’t going to tell him that I had a virtual background on-or that we were in breakout rooms. We all needed more laughs. As the seasons changed, I learned how the light shifts in this space and how to avoid looking like an old detective show’s interrogation subject on Zoom during winter faculty meetings.

As the lights on this run begin to dim, I have been Googling dining tables and chairs because I just don’t want to look at this table anymore. I think it is ready to retire after 25 years, three children and over a year of being a classroom/home office. And yet, I hesitate to replace it just yet, because maybe it will look different when it isn’t doing so many jobs. Maybe, once this table is just (to very loosely paraphrase Freud) a table, I’ll be able to see it with new eyes. Maybe, I’d even miss it.

In the fall, I might miss having food, Coke Zero and coffee immediately available, or a bathroom that does not require a key. Will I miss the cat snoozing just outside of camera range or my dog punctuating my most important points (that coincided with mail or package delivery)? I don’t think I will miss the chaos of people walking through my classroom/office making noise or slamming doors. I don’t think I will miss my ritual morning clean-up of this space because in my “real” office, the only person who might leave debris on my desk would be me. Will I enjoy being alone in a quiet space after over a year of knowing where everyone in my immediate family is and what they are doing? Will people judge me if I sit at my desk and watch Gilmore Girls while I eat lunch at the office? And, to be utterly cliched, nothing beats the commute or current dress code. Change, even good change, is hard.

As part of my cleaning this morning, I pulled out my Swiffer. As I swabbed under the table, I realized that the chair that I had been sitting in all this time has left four distinct worn spots on the wooden floor. A scar left by the pandemic. I immediately started to google how to best erase or cover the spots but then I stopped. Like the ghost light left on after the theater is dark for the night, these spots need to stay.

(Elizabeth Stillman - Guest Blogger)

A Few Possible "Big Picture" Thoughts on ASP Best Practices

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).

Last Call

Have you ever been at a bar at last call, when they turn on the lights and what was a magical place in the darkness transforms into a dirty, tacky room that you would not have entered if you had seen it this way at the beginning? I think that is where our students are in this year of pandemic teaching and learning.

Yesterday, at the end of class, I told my students that I was there for them, I saw them and asked what I could do to help them get to the finish line this semester. We had about four minutes of class time left, and I wanted to acknowledge that our once-a-week class had two boxes left to check off before the semester ended. A student raised her small yellow emoji hand and asked, “where can I find the motivation to move forward? I seem to have lost it just when I need it.” There was a lot of nodding. Cameras that had been off for the past hour came back on. I sighed, took a deep breath, summoned my inner Kate McKinnon, and paraphrased her entirely accurate statement on the Dec. 20, 2020 episode of Saturday Night Live, "It's like the light at the end of the tunnel has shown us how stinky and bad the tunnel is." There is so much truth in this. Seeing what we have been through as we near the end of it is an exhausting place to be stuck as finals approach.

So, I tried to find something that might re-ignite motivation. I had to admit that the semester ending wasn’t enough of an incentive to get to the end of it. I had to also admit that there is no easy answer to that question except maybe, while it seems like a time where things don’t matter and that the pandemic blip will explain any so-so grades, the truth is that the pandemic excuse will have a pretty short half-life. So, I told them it does matter. The grades will start to matter; the approach they take to getting them will matter more, and most important of all: they matter. We have not given up on making sure they learn because their learning-even under these strange circumstances-will always be what matters.
I asked them to find a morsel of normalcy every day from now until exams end and make a list of these things. I showed them the flowers I bought at Trader Joes in cheerful shades of yellow, coral and orange and urged them to find something beautiful to look at when they are down. Spring is exactly the right time of year to see these things changing daily. I suggested going to the ocean (but no swimming yet, it is still cold here in Massachusetts!) and understanding in its vastness that they should, occasionally, feel that they can be small and not in control and that is okay. But I also told them that nothing I say is a one size fits all pep talk: flowers and water will not solve all problems and that my advice was not meant in any way to diminish their very real feelings of despair. I offered to meet individually with anyone who wanted a tailored pep talk. I reminded them about the counseling center and our Dean of Students office.

But truly, I had no answer that might find lost motivation. I am hoping it is merely misplaced and that time, light, flowers, waves, vaccines and kindness will help us find it.
In the meantime, I will pull out my virtual pom-poms, cheer students towards the goal and raise my glass to the day that we can consider this awful and now illuminated tunnel completely behind us.

(Elizabeth Stillman - Guest Blogger)

Missing Spring Break

I don’t know about your law school, but we did not have a regular week-long spring break this year. Instead, perhaps as an afterthought, we were awarded a one-day reprieve which occurred on St. Patrick’s Day…in Boston (people who have ever lived in Boston will know what I mean).

I truly understand why we did not have our usual break. We are part of a university that has undergraduates, as well as a business school, and we did not want students leaving and returning to campus in the middle of a pandemic, especially since these students are most likely to be vaccinated in the last wave. As a result, we started a week later in January to allow more self-quarantining and to keep our end dates and commencement on schedule. One Wednesday in the middle of March made sense from a strategic planning point of view.

And yet, this is the week I have spent the most time talking to tearful and anxious students who have hit a wall. This is also the week that students have disappeared from my radar and I have had the most correspondence with our Dean of Students Office about students I am worried about. I have begun starting my emails to them with, “me again...” and ending them with, “again, sorry to add something else to your plate.” Joni Mitchell was absolutely right when she said, “Don't it always seem to go; That you don't know what you've got till it's gone.[1]” Sigh.

The one class I teach on Wednesdays is a one-credit MPT driven class. We meet for about an hour at the utter apex of the workweek: high noon. I am never sure if I should ask how everyone’s weekend was or whether I should wish them a good one-it is an awkward time for small talk. I’d like to think that this class, at its silly time, is an oasis in an otherwise Zoomful chaos. Since spring “break,” fell on our class day, I told the students in this class that I would consider the day sacred and assign no new work or have any assignments due, so long as they each did something that gave them joy and send me a picture to prove it. I wanted students to think that the one “assignment” they had, for the one day of break they had, was to do one thing that brought them joy. In return, I promised I would send them my proof as well.

As usual, this class of students did not disappoint. The first picture I received was of an absolutely adorable baby and the caption, “I’m spending some time with my niece!” This was followed by a selfie of a student driving a few dogs to the dog park-even the basset hound looked cheerful. So far, I have received photos of snuggly kittens, excited meetings with friends, a birthday cake, a recent publication, a dog who had lost a battle with a skunk but smiled at a bath, a bubble bath drawn and ready (for a human), a map of a five-mile run, and a pizza from a favorite place shared with a favorite person. The picture of a visit with a grandmother--for the first time in a year-- made me cry. In return, my students got a series of shots from me that included: a recipe, my gathered ingredients, batter in a pan, and, finally, my son eating a gooey brownie. The fact that not everyone was in a position to engage in happy activities was not lost on me either-there are no consequences or penalties for not sending the picture and pictures were sent only to me, not the whole class.

While our Wednesday off was something, it was also clear that one day was not enough of a break for students in times that are already fraught. It is not enough time for a student to turn away from the pressure of law school and then, refreshed, turn back to finish up the semester. Everything we do these days seems both rushed and suspended in time, abbreviated and yet drawn out. I worry that we will crawl over the finish line at the end of the semester at exactly the time students need to summon the energy to run. Safety and wellness do not belong on opposite sides of the same scale and I hope that we are not forced to weigh them against each other again. Next year, may we all find ourselves somewhere with, “a pink hotel, a boutique, and a swingin' hot spot[2]” for spring break.

(Elizabeth Stillman - Guest Blogger)

 

[1] https://www.youtube.com/watch?v=2595abcvh2M (last accessed March 19, 2021).

[2] Id.

Predictions Are Hard, Especially About the Future

Here it is, Tuesday evening, and I am finally settling down to write another blogfest – this, like many weeks, despite having specifically placed this high enough up on my to-do list that I genuinely expected to be starting in the early afternoon. The problem – one I am sure we are all familiar with – is not the writing, but all the other things I had planned to finish beforehand, which took far longer than I had originally estimated they would. Fortunately, such difficulties are illustrative of this week’s topic of discussion – the planning fallacy and how to counteract it.

The planning fallacy is a simple psychological phenomenon: human beings’ predictions about the time needed to complete a future task are usually significant underestimations. In some cases, wild underestimations: for example, when construction began on the Sydney Opera House in 1959, it was expected to be completed by 1963, but the site was not actually finished until 1973. Daniel Kahneman and his partner Amos Tversky were the first to describe this phenomenon, more than forty years ago, and Kahneman writes about it in his wonderful book, Thinking, Fast and Slow. He explains it as a kind of optimism bias, a tendency of people to adopt the rosiest scenarios as they imagine how a task will proceed.  Later scholars added other nuances to this explanation.  One reason for this apparent optimism bias, for example, might be the self-serving human tendency, when considering similar past situations, to take personal credit for all the things that went right (and thus assume they will go right again in the future), but to attribute errors and delays to outside forces that they presume will not occur again.¹  Nassem Taleb, in his book Antifragile, suggests it may not only be a psychological phenomenon, but also a consequence of a natural asymmetry: whenever circumstances or events cause a deviation from a well-laid-out plan, chances are far greater that the disruption will lead to delay than to expedition, so that the sum total of all deviations would always be expected to be postponement.

How many times have we seen the planning fallacy in action amongst our students? Just in the past month, I have met with returning students, vowing to perform better in this coming spring semester, who base this determination on unaccountably confident projections of all the steps they will complete to do so.  I have worked with February bar examinees, noses to the grindstone, who despite their genuine efforts are finding themselves slipping behind their intended schedules.  Not every student suffers from this bias, of course, and many of those who experience the bias don't actually suffer for it, either because they start with ambitious goals that leave plenty of leeway or because they find the extra time and energy to offset their underestimated projections.  Still, every year brings a significant crop of students who do not perform as well as they might have, because they seriously underestimate how long it will take them to complete an essay test question, compile a useful outline, learn the rules governing a specific legal topic, research, draft, and edit a significant writing assignment, or attend to the demands of student organizations.

Fortunately, the psychologists and scientists who have studied the planning fallacy have suggested a few strategies that can be used to counteract it, and these strategies are easily adoptable -- or correspond to techniques already used -- by academic support professionals.  In his book, Kahneman suggests the use of reference class forecasting -- that is, making predictions of the time needed to complete a task based not on a person's (or an entity's) internal sense of how long it should take them, but on observations of actual outcomes in prior similar situations.  In other words, if I were going to build an opera house, I might start off by assuming I could get it done in a few years, but if I considered how long it took to build the one in Sydney (and of course in other locations), I should understand that it is likely to take more than a decade.  Many of us do something at least adjacent to this with our students already -- providing them with estimates about how long they should expect to take to complete a case brief, for example, or to study for the MPRE -- but the idea of reference class forecasting suggests that it might be even more powerful to refer specifically to prior performances by other students.  Instead of saying, "You should devote at least 24 hours," it might be more effective to say, "Last year, every student who devoted 4 hours a day, every Saturday and Sunday, for three weeks, completed this successfully."

Another suggestion is the use of the segmentation effect. It has been observed that a person's estimate of the total time it will take to complete a task will be longer -- and thus likely more accurate -- if they are asked to segment the task (break the task down into a number of sub-tasks), to estimate the time it will take to complete each sub-task, and then to add all those times together to come up with the total time.²  However, there is a cognitive cost to being mindful and particular enough to break complex tasks down into numerous sub-tasks, and, without help, this kind of approach may be hard to learn and sustain.  Fortunately, this is just the kind of help we can give, especially to inexperienced students who may not be able to envision how a long-term task can be broken down, or even what all the steps involved might be.  By providing students with a framework of what to expect, and encouraging them to think realistically about what it will take to build each part of that framework, we can help them to stay on track, or at least in the general vicinity of the track, by using the segmentation effect.

Finally, another tool that has been suggested to combat the planning fallacy is the implementation intention, a term coined by Peter Gollwitzer for a particular model of thinking about future actions.  Encouraging people to think specifically about when, where, and how they will act towards their goal tends to make them more likely to move forward steadily, and in a timely way, towards them.  For example, people who received a telephone call in which someone asked them what time they planned to vote, from where they would be heading to the polling place, and what they would be doing just before they left to vote -- all questions designed to prompt them to think about when, where, and how they would vote -- were more likely to vote than those who did not receive the phone call.³  The mental IF-->THEN statement (as in, "If I am aiming to take a practice exam, then I should get a copy of an old exam from the library on Friday") is the implementation intention that moves people apace towards their goals.  This, too, is something that academic support professionals do, or can do.  By querying students about the specifics of how they expect to achieve their long-term goals, we can induce them to map out their plans in advance, changing vague ambitions about what they would like to achieve into articulable steps (the implementation intentions) that they can follow methodically to their desired ends within the time they have available.

It is a natural human tendency to overestimate what can be done in a given period of time. By helping our students account for this tendency, even if we cannot help them complete everything, we can at least help them get in a position where they've done enough to succeed. 

[Bill MacDonald]

¹Roger Buehler, Dale Griffin & Michael Ross (1995) It's About Time: Optimistic Predictions in Work and Love, European Review of Social Psychology, 6:1, 1-32, DOI: 10.1080/14792779343000112.

²Forsyth, D.K., Burt, C.D.B. Allocating time to future tasks: The effect of task segmentation on planning fallacy bias. Memory & Cognition 36, 791–798 (2008). https://doi.org/10.3758/MC.36.4.791

³Nickerson, D. W., & Rogers, T. (2010). Do You Have a Voting Plan?: Implementation Intentions, Voter Turnout, and Organic Plan Making. Psychological Science , 21 (2), 194-199.

Sometimes, "One Must First Make a Mistake and Then Put It Right."

There is something about this time of year – perhaps the sweeping winter landscape, perhaps the complex and dramatic tale that is law school – something that makes me think of the golden age of Russian literature. Where would jurisprudence be without The Government Inspector or Crime and Punishment? And of course, the most important line in literature for academic success professionals comes at the start of Tolstoy’s Anna Karenina:

                Happy families are all alike.  Each unhappy family is unhappy in its own way.

The idea captured in this line has been recognized as a generalizable “Anna Karenina Principle”: In many systems, enterprises, or entities, a significant flaw in one or any combination of factors can lead to failure, while success depends on a certain similarity of strength in each of those factors. There is a satisfying monotony to success. But there are thousands of ways to fall short.

Tolstoy was not the first to think of this, or even to articulate it.  Aristotle says, in his unputdownable classic Nicomachean Ethics, put it this way:

                It is possible to fail in many ways . . . while to succeed is possible only in one way.

It’s not clear how much credence we should give to this work – no one even knows for sure which Nicomachus the book was dedicated to, since both Aristotle’s father and his son had that name – and we surely can’t take literally the intimation that everyone with a 3.5 GPA or above is exactly alike. But just as surely, each unhappy law student is unhappy in their own way.

Drawing a parallel between struggling law students and Anna Karenina might seem thoughtless or even risky, given Anna’s unhappy ending in the second-to-last part of the book. But there’s a reason the book does not end there. In the final part of the book, Levin, friend of Anna’s brother, comes to realize that, despite his past familial unhappiness, he has the capacity to build a happy family, despite the ways in which he knows he may continue to fall short, because he has the power to continue to keep working at it.

Besides evoking the Russian steppes (well, at least here in Buffalo), this time of year also delivers fall semester grades, and, thus, some unhappy law students. It is one of the privileges and challenges of this job that I get to know students well enough to learn their own ways of being unhappy. There is a kind of shivery tension in the air as students work with me, often for the first time since arriving at law school, to face their unhappy grades, with hope or shame or defiance or resignation. No one wants to remain unhappy, but not everyone wants to hear that their way of being unhappy is unique. To be sure, some students do want to hear that; individuality can be inspiring.  But other students are hoping for the magic bullet, the one tool or book or trick or advice that will fix every problem. Still other students are discouraged by the idea that their issue, or combination of issues, makes them unique, as if that is proof of their fear that they alone among their classmates were not really meant for law school. The most important thing to remind all these students is that uncovering how each of them is unique is the first step towards helping them to discover how to be happy law students.

And, after all, as Tolstoy also said in Anna Karenina:

                Spring is the time of plans and projects.

[Bill MacDonald]

Best School Moments

Education week interviewed students and posted their responses to the question "What was the best moment you ever had in the classroom?"  You can read the 3rd part in the series here.  It has 3 students' responses, and I think they are illuminating.  Here are quick excerpts:

Student 1 - Something teachers or students can learn from my experience is that we have to overcome our fears and not let them control ourselves because we can’t know our capabilities if we are afraid.

Student 2 - When I wrote my first poem in freshman year. I realized that it was fun and unique. I felt like I wanted to write more and more. When I performed my first poem to that class I found my passion.

Student 3 - This experience showed me the extent a relationship with your classmates and your teacher can go....

While not surprising, I noticed that none of the students talked about a specific piece of information.  Only one of them referred to teaching style (#3), and even that student came away highlighting the relationship with students and the teacher.  I wanted to highlight these responses as we enter our classrooms (many of which are virtual).  Students will need doctrinal information, but in the end, they will remember more about the relationship and human skills we helped them build.  They probably won't remember all those rules after the bar exam, but they will remember the time we took to help them prepare.  None of our classes will be perfect this semester, but we can be the professor that makes a lasting difference with the connection we make with them.  Have a great semester!

(Steven Foster)

Academic and Bar Support Scholarship Spotlight

ASP Foundational Scholarship Series:  This series focuses on the seminal ASP/ Bar Exam scholarship that contributed to the development of academic and bar support best practices.  

For the first-ever post in this series, I was stuck between two choices.  So, I chose both:  

1.    Knaplund & Sanders, The Art and Science of Academic Support, 45 J. Legal Educ. 157 (1995). 

This article was one of the earliest and most robust empirical analyses of law school academic support programs.  It helped ASP faculty defend the then-controversial pedagogy of "contextualized academic support" and answer the question "Why should we spend money on an ASP?"

From the introduction:

• Our analysis of seven distinct academic support initiatives at UCLA shows that support can substantially and demonstrably improve both short-term and long-term academic performance, but the effects vary markedly across UCLA's programs.

• The variation in academic effectiveness across UCLA's programs follows distinct patterns that yield definite guidance on the pedagogy of academic support.

• We found some evidence that academic support programs can have valuable benefits apart from their impact on grades.

2.     Russell McClain, Helping Our Students Reach Their Full Potential: The Insidious Consequences of Ignoring Stereotype Threat, 17 Rutgers Race & L. Rev. 1 (2016).

Coupled with Professor McClain's conference presentations on this subject and a related TEDx Talk, this article was the first to analyze the phenomenon of stereotype threat specifically as it pertains to law students.  It serves as a crucial resource for ASP faculty, and all others, to understand their potential in ameliorating the effects of implicit bias in the law school classroom.

From the article abstract:

A psychological phenomenon may be a significant cause of academic underachievement by minorities in law school. This phenomenon, called stereotype threat, occurs as a result of the fear of confirming a negative group stereotype....  When subject to this threat — as a consequence of being confronted with environmental or explicit triggers — people do worse in academic settings than they otherwise are capable of doing. In this article, I explore the implications of the research on stereotype threat for law schools and make several recommendations to deal with the threat.

There are natural implications for law school admissions, of course. If a portion of our applicant pool is affected by stereotype threat, then we cannot trust the accuracy of the metrics we typically use in law school admissions, i.e., prior academic performance and LSAT scores of law school applicants. Indeed, those credentials actually may under-evaluate the academic potential of these applicants, who are often minority students. This should cause law schools to reevaluate their admissions policies.

After students are admitted, law school provides fertile ground within which stereotype threat can flourish. This, of course, means that the performance of minorities in law school — in class, on exams, and in other areas — is likely to be diminished, such that many minorities will not perform up to their academic capacity. And, obviously, we would expect this same dynamic to play out on the bar exam.

Law schools can address stereotype threat at each of these levels, and they should do so. This article lays out a framework for understanding and dealing with the threat.

(Louis N. Schulze, Jr., FIU Law).

 

 

Illusive Teaching

I just got out of class.  An online zoom class, not surprisingly.  But, in reflection of the first class, I had a bit of a surprise.  I did a whole lot of talking and talking and then, even more, talking.  You see, I took a glance at the audio transcript file.  And it was quite an eye-popper. 

I did most of the talking, which means that my students did very little.  

It makes me wonder whether I left enough time in the midst of my words for my students to learn.  I once heard a brilliant teacher say something to the effect that "the less that I talk the more that they [my students] learn."

Of course, as the saying goes, the "proof is in the pudding."  

Which leads to my next surprise.  I try to end classes with asking students one thing that they learned along with one thing that they didn't understand.  Well as you might expect, I didn't leave enough time for the last question because, you guessed it, I spent too much time talking.

But, in response to the first question, what they learned, well, they learned about what I liked (snickers!) and where I ate lunch on the first day of the bar exam (the liquor store since I forgot my lunch), etc.  In other words, it seems like they learned a great deal about me but perhaps not as much about bar preparation, which is the subject of our course.

Lesson learned, especially for online teaching...speak less and listen more.  In short, trust them to learn by learning together, as a team, rather than just trying to pound information into their heads.  I sure learned a lot today.  Next class...my students are going to learn plenty too!  (Scott Johns)

ASP Presentations at AALS

It is AALS Annual Meeting week and the Section on Academic Support is holding 3 programs and the business meeting.  This year the section is holding 1 main program and 2 co-sponsored programs.  

Main Program

Wed, Jan. 6, 2:45 pm - 5:30 pm EST - Section on Academic Support and Real Estate Transactions Joint Program: "The Changing Architecture of Legal Education: Real Estate Transactions as a Case Study."

Co-sponsored 1

Thurs, Jan. 7, 2:45 pm - 4 pm EST - Empirical Study of Legal Education & the Legal Profession, Academic Support, PreLegal Education & Admission to Law School, and Student Services: "An Empirical Look at Influences on Access to Legal Education & the Profession."

Co-sponsored 2

Sat, Jan 9, 1:15 pm - 2:30 pm EST - Section for the Law School Dean and Academic Support: "COVID-19 and the Bar Exam: Supporting our Graduates."

Section Business Meeting

The ASP section business meeting will be held on Wed., Jan. 6, at 5:30 pm EST immediately following the main program.  The business meeting is NOT part of the main program login.  The main program platform does not allow for discussion.

 

12 Students on Zoom

As we enter the holiday season, we seem to measure things in dozens. To that end, and in that spirit (and as a respite from grading…), here are the 12 Students You Meet on Zoom:

1. The First One There: this student comes before I have even poured the coffee I will need for the class. And then they leave because they are alone. And then they come back. And now I have four separate recordings for the class-three are about 38 seconds long.
2. The Gamer: he (or she) has the headphones/mic combo and gamer chair set up like all the folks on YouTube videos that your 15 year old son watches. They may actually be playing a game online with your 15 year-old son during class…..
3. The Snuggler: she (or he) is all comfy cozy in their fluffy bed during class. Their face is sideways because sitting up is a lot. Probably not taking any notes….
4. The Snacker: they did bring enough to share but….
5. Video off/audio on: Um. We can hear their mom telling them something even if we cannot see them (rolling their eyes no doubt). No worries, I muted you both.
6. Computer only attending class: no video, no audio, no student. I called on them after asking them to turn on the video three or four times. No answer. I ended class but didn’t end the meeting and they were still there-or were they ever there? The emailed questions later in the week make me believe not…..
7. The Chatter: the syllabus actually says that any private chats will show up in my transcript of the chat. I don’t care if you think my hair looks weird today. Actually, I do. Ouch.
8. The Harry Potter Painting: they are off screen and then they are back and then they are off again. I am waiting for them to show up in another person’s square…with a sword….and a pony.
9. The Traveller: they are moving from room to room hunting the elusive wifi. Wascally wifi….or walking around outside and taking us with them. Sadly, it will not count towards my daily steps…
10. The Mobile Classroom: They are in a minivan-in the driver’s seat, but when we go into breakout rooms I have a weird vision of them physically driving over to another parking spot. I’m actually impressed at how spacious and clean the van is compared to my house.
11. The Pet Sharer: I love your dogs and cats. I had no idea you had a whole bunch of birds until you unmuted yourself and the noise made all three of my cats come running to my laptop. Still, it was a delightful chaos.
12. The Student doing the best they can under the circumstances: that’s everyone. I would like to thank my students for their patience and understanding during the garbage collection/mail or package delivery/fire engine barking as well as the occasional meowing and tail in your face. This is hard-and we made it work.

(Elizabeth Stillman - Guest Blogger)

 

 

Building a New Bar Exam and Cognitive Science in Teaching Articles

The Legal Skills Prof. Blog had 2 great posts recently that I want to pass along.  The first is about a piece written by Deborah Jones Merritt.  She advocates for a new bar exam that would be significantly more statistically valid.  The Legal Skills post is here.  You can also read her full article Building a Better Bar:  The 12 Building Blocks of Minimum Competence.

The other post relates to cognitive challenges in teaching.  It begins with "I have a feeling my co-blogger Scott is going to love this one (it's right up his alley). It's a new article I stumbled across called "The Cognitive Challenges of Effective Teaching" by Professors Stephen L. Chew (Stamford) and William J. Cerbin (U. Wisc.) that pulls together an extensive body of cognitive science research into a nine point framework to guide and inform classroom teaching."  The post is a great summary of the 9 points, and the full article is worth the read.

(Steven Foster)

A Little Kindness

One of the books that I have read with my children (and without them because it is that good) is Wonder by R. J. Palacio. It is the story of a child with significant facial abnormalities and how he navigates attending school for the first time as a fifth grader. It is not a great book to read on the subway if public crying is not your thing. One of the things I loved about Wonder was that it was full of warm-hearted quotes, but the ones that really resonate with me in these pandemic times are about kindness, "When given the choice between being right and being kind, choose kind," (Dr. Wayne Dyer) and a variation of this quote from J.M. Barrie, “[b]e kinder than necessary because everyone you meet is fighting some kind of battle.”

I have about seventy-five students I am responsible for this semester: sixty are undergraduate law majors and the rest are law students. Throughout this entirely remote semester, and especially as we move into exam season, I am trying to live by the words quoted above. What does it mean to be kind in these unprecedented days of legal education? Sadly, the answers are becoming clearer as we get closer to not needing to know anymore.

I wonder how to balance teaching important material, assessing learning of that material and yet not causing any additional stress to students who are already in uncharted waters. I do students no favors by not teaching the subject because, after all, this pandemic will end someday and not knowing what they should know after taking my class is not ideal. I also do students no favors by being rigid for what seems to be no reason other than to maintain the usual power dynamic in a “classroom.”  Nothing usual is going on right now, and yet the normalcy of learning may be comforting. How can I make what I teach relevant in a topsy-turvy world?

I will preface my argument for extra kindness with the recognition that I am a bit of a mush even in the best of times: I will accept late work (if students ask for the extension prior to the due date), I will find ways to add extra credit for students who really need more points to pass and I will meet with students really early and fairly late in the day. I am not a doormat though: if you lie or cheat, the well of good will runs dry.

Here’s the thing though, the battles that students have been fighting since March are both obvious and hidden. There is the elephant in the room (wearing his mask and six feet away from the other battles in the room): Covid-19, but there are also so many other occupants of this space. There are students who don’t have the equipment, wi-fi, personal bandwidth or private space to be productive in remote classes. There are students who are ashamed of their living space, or who are sharing that space with siblings, parents, and roommates. There are students who are learning while parenting students who are also trying to learn remotely. There are students with executive function issues who are really struggling to stay organized and focused when the class content is coming from so many different sources. And then there is the student who attends class from inside his car because he needs to drive his grandmother to chemotherapy (public transportation and taxis are not safe at the moment) and our class is during her regularly scheduled appointment. There is the student who lost a close family friend to suicide the week before a scheduled oral argument about a case involving bullying another person to commit suicide; a student who had to fly home to Ghana due to a family emergency; a student whose wife is immune-compromised who was exposed to the virus at work and they live with her older parents, and so on.

I would argue that kindness is the only answer to balancing all the competing interests in teaching in these times. Asking for and accepting help teaches students maturity. For pre-law and law students, learning to advocate, even if for themselves, is a skill that is absolutely necessary but hard to assess. Understanding that most people will do the right thing given the necessary information is also an imperative, and yet ephemeral, lesson. This is where modeling kindness can be an unexpected but powerful aid to teaching.

So, I am doing my best to teach and model kindness as part of the hidden curriculum in these classes. I am accepting all work until the last minute. If you ask me to turn it in late, the answer is yes and there is no penalty. I may even track you down to make sure you ask. If you need to do your oral argument about a different case because the assigned one is too hard to read about, then so be it. I’ve stopped using a virtual background because I want students to know that I am sitting at my kitchen table in my messy and chaotic house. My students have seen (and mainly heard) all my pets and children. I am not pretending that anything we are doing is normal, but I am teaching within this paradigm and not despite it. I want my students to learn that there are some things that are more important than classroom hierarchy, and yet I also want them to learn that being an attorney means that, for the most part, you will be working with and for humans-who all have battles. When our class could be an immersive escape from the world, I hope it was; but where it could be an oasis acknowledging the reality of this time, I hope it was that too. When we get to a point in this pandemic where we can safely be caught crying on public transportation, I will have to find a new balance and I hope my students will have acquired the resilience to find one as well.

(Guest Post - Elizabeth Stillman)

Imposter Syndrome

Many of us try to help students with imposter syndrome.  A colleague from CALI (Hat tip to Deb Quentel) passed along an article about imposter syndrome in the classroom.  Check it out here.

(Steven Foster)