Sunday, April 5, 2020
Law school and the bar exam require immense mental toughness during regular preparation periods. Online learning combined with the stress from uncertainty magnifies that difficulty. Dr. Travis Bradberry wrote an article for Success magazine in 2016 describing 15 qualities mentally tough people exhibit. The list includes:
- Emotional Intelligence
- Neutralizing toxic people
- Embracing change
- Saying no
- Fear leads to regret
- Embracing failure
- Not dwelling on mistakes
- Others won't limit joy
- Won't limit the joy of others
- Get enough sleep
- Limit caffeine
- Relentlessly positive
All those qualities may not apply to law school or the current situation, but many of us could benefit from doing more of a few of them. Most of us should be more confident, say no more, embrace failure, not dwell on mistakes, exercise, get sleep, forgive, and stay positive. Check out the article for advice in each one of these areas. Most of us are trying to do much more now than a couple months ago. Be reasonable and take steps to stay mentally fresh.
Saturday, March 21, 2020
COVID-19 dramatically changed the way we all experience life. Social distancing and quarantines require using technology for work and education. Most of us utilize technology regularly through email, word processors, databases, etc., but fully online working and education is not the norm. Everyone will need to adjust to a new normal.
The new normal requires new engagement methods and instruction. I downloaded a free trial of a program to create interactive online lectures because I worried zoom wouldn't engage large classes. However, my attempts will probably have flaws. Many instructors will use zoom, and students will learn the material. They will also probably make some mistakes. The reality is everyone, instructors and students, will make mistakes.
Most of us know mistakes will happen. We even say we will cut students some slack. Will we cut ourselves slack though? In the past week, I saw more emails on the ASP listserv about online tools, best practices, conference calls, etc. than any other given week. I am overjoyed that our community is willing to help each other reach our students. The amount of information though is overwhelming. In the constant drive to reach every student and be flawless in our instruction, we may have unleashed an overwhelming flood of information. The tools are limitless, and instruction is happening now. Some may try to accumulate and evaluate all the tools to pick what will work best. I am not sure if that is the best practice in this moment.
Right now, our students need us mentally ready to help them through a difficult situation. We tell students to stay mentally fresh throughout a semester and the bar exam. We need to take the same advice right now. No system or tool is going to be perfect. Find one that will accomplish your goals, and commit to that for the rest of the semester. Students don't expect any of us to be perfect or have all the answers right now. What they expect is someone to help and be available. I am not discouraging seeking information. I heard the conference call last week was amazing. Definitely pay attention to information. Just don't overindulge to the exclusion of other important mental health activities during this crisis. Being present and there for each other and our students will have the biggest impact on their education.
I hope everyone is safe and healthy.
Tuesday, March 10, 2020
Just to be clear, law students are not dogs. Law students are people, full of humanity, volition, self-awareness, and agency. Dogs, in contrast, are full of caninity, impulsiveness, incomprehension, and opportunism. If a dog sees you after a one-week absence, she will yelp and leap excitedly, as if witnessing your literal resurrection from the dead. A law student, on the other hand, will just shrug, or perhaps nod, understanding that class only meets once a week, and that you are not killed and eaten by bears in between meetings.
Nevertheless, learning to be a better dog owner had helped me learn to be a better law student teacher, too. This is *not* because law students and dogs are similar. Law students have never bitten, drooled upon, or shed on me, and they do not think of squirrels as morsel-toys. No, what has helped has been the realization that I make some of the same mistakes with my puppy that I sometimes make with law students, but with dogs the consequences are more readily noticeable. Tula provides me with an immediate feedback loop that helps me realize the errors of my ways more quickly:
- Using inconsistent language. When I am walking my dog and she pulls ahead of me, I invariably find a variety of ways to show my disapproval. "Tula, come here." "Tula, back it up!" "Tula, no pulling." These all mean essentially the same thing to me, and, in a sense, they mean the same thing to Tula, as well, except from her perspective what they mean is nothing. Why? Because when I taught her to walk next to me, I told her to "Heel!". When I say "Heel!", she knows to walk alongside me. When I say "Back it up!", I might as well be speaking Orcish, and she merrily ignores me. Students are not so obvious when they are puzzled by a change in vocabulary, so I might not notice that I have confused them if I switch spontaneously from "meeting of the minds" to "mutual assent" without explanation. But an overeager German shepherd quickly promotes consistent terminology.
- Failing to spot trouble coming. A peaceful walk around the neighborhood can become a nerve-jangling melee of barking, yanking, and tangled leash if I do not notice the squirrel that my pooch has fixed her gaze upon or the approaching tween walking her poodle. Tula means well, but her fervent enthusiasm would lead her into trouble if I had not quickly learned to watch out for temptation. Law students, too, face hazards to their success -- substantive misunderstandings, time management issues, overconfidence, etc. --- but these dangers can smolder, unaddressed, for weeks or even months before finally leading to very visible, and sometimes catastrophic, misadventures. Having to learn to control a fanged furry beastie has impressed upon me the importance of spotting and dealing with trouble before it generates an emergency.
- Ignoring personality and mood. Every dog owner dreams of having the perfectly-behaved pet that responds instantly and consistently to every command, like a fuzzy predictable robot. I have seen a few of these animals -- they are really scary, like police K-9 dogs, trained through thousands of hours of repetition to such automaticity you can practically hear them barking, "I'll be back!" The rest of us all have to contend with real dogs. They mean well, really they do; but if your dog (like mine) is just a quivering bundle of excitement, then you have to accept that you cannot always turn your back on them after commanding them to sit. And if they are tired, or hungry, or frightened, then you have to adjust your expectations and adjust your guidance accordingly if you want to see the behavior you are used to seeing. If you don't, then you will see things go awry very quickly. Law students are not dogs, which have no control over the expressions of their moods or personalities; people, sometimes with very good reasons, can subdue their reactions. But those reactions matter -- they affect perception, motivation, and intention -- and their effects might show immediately, or might not make themselves clear until much later. A good teacher will attend to each individual student's personality and mood and adapt their teaching strategies to take them into account.
Dogs are terrible models for law students -- they do not read books, once one of them starts yapping they all have to jump in, and they would probably sleep through every class. But dog owners might have something useful to teach law professors.
Thursday, February 27, 2020
I love youth activities because they start out so spirited, often with a riddle, a challenge, or a song.
Recently, I realized that my some of the difficulties that students face is that they can easily avoid the obvious. That's because many students often lack confidence that they actually belong in law school, seeing themselves as imposters.
In working with children, youth leaders understand that the sense of inadequacy is omnipresent, especially with middle schoolers. So, in order to help build community and break down barriers to learning, leaders often start youth meetings with some adventurous fun. Call it team building if you want.
As academic support professionals, perhaps it might be helpful for us, likewise, to kick off workshops and classes with an "ice-breaker" of sorts because, let's face it, law school can share many of the insecurities of teenage life. So, below, is an exercise that might help your students relate to each other, laugh a bit, and learn perhaps even a little too.
As background, this week, most of my students missed a relatively easy essay issue dealing with consideration, even though it was right under their noses. That's because we really do often believe that we aren't smart enough to solve the problem or that they must be tricking us. But, sometimes the answer is right in front of us, if we just take the time to ponder it a bit. Nevertheless, we are often in a rush, because of time pressures, to start working on the problem at hand before we even understand the problem at hand.
With that background in mind, let your students know that you'd like to take a breather, and oh, let's say, work on a math problem for a moment. Not one that is too difficult, mind you. Just one from back from the days when you were taking algebra.
Then, scribble on the board: "Find x." Follow that with the equation: y = 2x/3 + 25. Then let them have at it. Oh, and make sure that they know that they are free to work in groups, after all, its a math problem!
At this point, a few engineers and scientists will be plugging away but most students will be frantically trying to figure out: "How do we solve for x?"
But note the "call" of the question. It's not to "solve" for x but rather to "find" x. And, just like that, one of your students will scream out I've got it! I've found x! That's when you ask the student to come to the board, with a marker in hand, and explain what they came up with. Watch with amazement as the student circles on the board where x is!
Back to my essay problem involving consideration. Based on a past bar exam essay, the problem involved a person who immediately risked her life to save a dog from a burning house. After the dog was rescued, a conversation ensued between the rescuer and the dog's owner with the owner learning that the rescuer wanted to go to paramedic school but couldn't afford it (no contract yet!). That's when things got exciting. The owner promised that she would pay for paramedic schooling because she wanted to "compensate" the rescuer for his heroism in rescuing her dog. Well, as things go on bar exam problems, the owner didn't pay and the rescuer, who was denied admission to the paramedic school, pursued a different line of education.
Most students explored lots of issues, including offer, acceptance, statute of frauds, mistake, conditions, anticipatory repudiation, and you name it. But, the key was in writing the issue: "The issue is whether the rescuer has any contract claims when the owner promised to pay for paramedic school to compensate the rescuer for a past act of heroism." In a nutshell, there was an issue concerning whether there was consideration based on the pre-existing duty rule and there was an issue concerning whether, assuming no consideration, whether the promise could be enforced under the material benefit rule and/or promissory estoppel. That was it. Once the students saw the answer, they then saw the facts that triggered that answer, and it all came down to writing the issue statement.
That's when I brought out the math problem below. Using this challenge, students were reminded that it's important to ask the right questions in order to get the right answers. And, in order to ask the right questions, we have to take time, before we write, to think. It was one of the most memorable learning exercises of all for my students because they all knew the rules of consideration and promissory estoppel but in their haste to solve the problem...they missed the problem. Love to have your thoughts on how the "Find x" exercise goes with your students! (Scott Johns)
Tuesday, January 28, 2020
It is an oddly resonant time of year.
This has been happening for the past week or so:
- A student comes to my office to talk. It's a 1L student, wrestling with a mix of shock and panic after receiving first-semester grades. They did not do as well as they had expected, and they are not sure what that means. Are they really smart enough for law school? Will they even make it through the first year? They are willing to work hard to improve, but they don't even know where to begin, and they are not sure that they will improve enough to make it. I explain that of course they need to take their grades seriously, and that they do have a good deal of progress to make, preferably as quickly as possible. However, I note, it is not unusual for students not to reach their fully potential right away, especially when transitioning into new types of tasks, and that they do have time to get themselves where they want to be, as long as they are diligent and thoughtful and make every effort to learn useful lessons from the disappointing evaluations they have received so far.
- Next, a recent graduate comes to my office to talk. It's someone preparing to take the bar exam in February, wrestling with a mix of shock and panic after receiving the results of their first simulated MBE exam. They did not do as well as they had expected, and they are not sure what that means. Are they really smart enough for the bar exam? Will they even pass? They are willing to work hard to improve, but they don't even know where to begin, and they are not sure that they will improve enough to make it. I explain that of course they need to take their score seriously, and that they do have a good deal of progress to make, preferably as quickly as possible. However, I note, it is not unusual for examinees not to reach their fully potential right away, especially when transitioning into new types of tasks, and that they do have time to get themselves where they want to be, as long as they are diligent and thoughtful and make every effort to learn useful lessons from the disappointing evaluations they have received so far.
- Next, another 1L student comes to my office to talk . . .
It is the nature of our jobs that we sometimes find ourselves trying to convey multiple messages -- sometimes contradictory -- at the same time. In January, this messaging consists of finding the right balance of intensity and perspective, of patience and urgency, of recognizing the effects of circumstance and shouldering the burden of personal responsibility. It can be tough in part because the people we counsel can be so different -- words that barely allay the anxiety of one person might be enough to lull another person into a false sense of self-confidence. Better to calm our advisees down just enough for them to be able to hear and take in our more practical suggestions about focusing on step-by-step goals, specific tasks, and formative assessments, which provide them not only with routes to get to where they want to be, but also help them strengthen their abilities to more accurately judge their performance and progress.
For those preparing for the February bar, it might also be worthwhile reminding them that they may have had similar moments of uncertainty when they first entered law school. They figured out enough to get obtain their J.D.s. Why should they doubt that they have the capacity to figure out how to clear that final hurdle?
Friday, January 10, 2020
The Section on Academic Support hosted a panel presentation on Friday, January 3, 2020 entitled Access to the Legal Profession as a Pillar of Democracy: Bar Exam Scores and the Future of Diversity at this year’s annual meeting of the Association of American Law Schools. The afternoon was expertly moderated by Melissa Hale of Loyola University Chicago, and the four invited speakers each offered a unique perspective on law student success.
Catherine “Cassie” Christopher of Texas Tech discussed her forthcoming article Normalizing Struggle. Steven Foster previously highlighted her article in his July 5 blog post, and the great article deserves a second mention here. Professor Christopher smartly observes that students who understand that struggling while learning is a normal part of the learning process are more likely to be successful in law school. She then offers concrete suggestions on how students, faculty, and law schools can help students not only normalize the struggle process, bust also more expressly differentiate struggle from failure.
Marsha Griggs of Washburn previewed her work-in-progress regarding law school student archetypes. Borrowing from social science literature, Professor Griggs posits that underperforming students typically fall into one of a handful of archetypes—that is a category with common characteristics. For example, “the student leader” may struggle because they have set unhelpfully low academic goals for themselves and few professors challenge these students to place a higher emphasis on their academics, incorrectly believing that because the student is so successful outside the classroom they will also naturally be successful in the classroom. For more on Professor Grigg’s work-in-progress and her experience as a first-time presenter, read her related blog post here.
Jane Grise of Kentucky has been busy crunching bar passage data with surprising results. She has observed that men consistently perform better on the MBE than women, and women perform better on the MEE/MPT that men. When the multiple-choice and writing scores are combined, some studies in Texas and California have found that the pass rates cancel each other out so that the scores do not differ substantially. An Ohio study did find that men passed at a higher rate than women. Professor Grise hopes to unravel the cause of the disparity in performance on the MBE and propose solutions to remedy the inequity.
Joan Howarth of Nevada Las Vegas also sees inequity in bar exam scoring, especially regarding UBE cut scores. She suggests that the UBE move to a uniform cut score of 260 (currently the lowest adopted cut score) arguing that there is no data to suggest the attorneys licensed with a passing score of 260 are less competent than attorneys licensed in jurisdictions with a higher cut score. If a uniform cut score of 260 were adopted a disproportionately higher number of minority applicants would be eligible for admittance to the bar, as the higher cut scores adversely impact minority applicants at a higher rate than white applicants.
The four speakers attracted an impressively large crowd. The 80-chair room was packed to capacity with additional folks electing to stand in the rear for the entire 1.5-hour (90 minute) presentation. Notably, when the presentations ended and the room was restricted to Section Members only for the business meeting, approximately three-quarters of the attendees left the room, indicating that most of the attendees were not members of ASP community—a pleasant and welcomed surprise to the ASP section members!
At the conclusion of the panel presentation, section members held their official business meeting. During the meeting, Jamie Kleppetsch of DePaul presented Laurie Zimet of UC Hastings with the Section Award, which is commonly viewed as the equivalent of a “lifetime achievement” award in the ASP community. Melissa Hale’s related blog post has more details on the award and Professor Zimet’s accomplishments.
(Kirsha Trychta, guest blogger)
Saturday, November 30, 2019
Over the past couple months, Scott Fruehwald and the team at the Legal Skills Prof Blog tackled different neuromyths that permeate legal education. I previously passed along one of the articles, but I thought I would compile a longer list for everyone's reading pleasure. I may have missed one, but here are the ones I have saved. Enjoy the reading.
Monday, November 18, 2019
You must not know ‘bout me. – Beyonce
Popular or “pop” culture is the aggregate of people’s beliefs and attitudes. More narrowly, pop culture” refers to the media of popular culture—movies and television shows as well as music, computer games, stage plays, novels, and the like. Pop culture influences all walks of daily life from social interactions and religious expression, to legal trends and classroom teaching. In a discussion of legal ethics in popular culture, one author suggests that the effectiveness of pop cultural works depends strongly on the imaginative identification of the audience with their heroes.1
When law students engage with pop culture products, the result is quite different from what occurs in other undergraduate or graduate courses.2 Since the early years of my teaching career, I have used pop culture references in my classroom to enhance my teaching and to make learning relatable to my students. To keep my references current and effective, I’ve had to add social media, hashtags, Insta®, Finsta, Netflix, shipping, shaming, and an uncountable number of terms to use and avoid, to my lexicon. In an attempt to connect with my students, I never hesitate to ask for explanation, demonstration, or example, when they use or present new terms or make what appears to be generally accepted reference to a pop figure. Each year in the classroom, I’ve learned – without judgment – something new that has served the greater purpose of understanding the mindset and frame of reference of the students whom we prepare to enter the legal profession.
Open mind notwithstanding, even I was not prepared for what happened in class last week. Brace yourselves. This news will not be easy to digest. A student did not know who Beyonce was. I found myself responding with an audible gasp when the student, commenting on a PowerPoint slide with an inserted photo of Queen Bey, said is that a picture of someone we are supposed to know?
I had long since replaced my references to 8-track tapes, the Sony Walkman®, Peyton Place, public pay phones, and phone numbers like Davis 8-4476 in my lectures. But this? How could anyone walking the earth today not know who Beyonce is? I feared that the utter lack of recognition could stir the Beyhive, and possibly devalue my communicative currency.
As I came to my senses from the sheer shock of it all, I remembered these wise words: the most important focus is on how students are experiencing learning and perceiving the teacher’s actions. As a corrective measure, I’ll get myself in formation and add this experience as another installment to my post about knowing your audience, as a reminder that an example, a visual aid, a personal or pop culture reference is only as effective as the perception of the audience.
1William H. Simon, Moral Pluck: Legal Ethics in Popular Culture, 101 Col. L. Rev. 421, 440 (2001).
2Michael Asimow, The Mirror and the Lamp: The Law and Popular Culture Seminar, 68 Journal of Legal Education 115-116 (2018).
Sunday, November 17, 2019
Pay for play is a big topic in college sports right now. The NCAA vaguely capitulated to some form of monetizing likeness for college athletes, but they haven't established the rules governing the situation. Very few people believe the new rules will be much better than the current encyclopedia of regulations. However, performance incentives seem to be right around the corner. Players are about to have an incentive to perform better to sale more jerseys and get advertising deals. Will the incentives work?
This post will not be about the NCAA proclamation, even though I could write a law review article on my views of college athlete compensation. The incentive discussion is interesting to me for bar prep. All bar review companies provide a fundamental statistic about bar preparation that we already knew. The more students study, the more likely they pass the exam. The question then becomes, what is the best way to encourage them to study. One thought is to pay them. Would it work?
I don't have a definitive answer to whether that strategy will work. I understand the logic that if doing the homework is what matters, then paying someone to do the homework should lead to passing. Many parents pay kids to take out the trash or for good grades, so why not pay bar takers to do homework. Unfortunately, my anecdotal experience runs counter to what seems logical. I offered incentives, bar review scholarships, iPads, etc., to attend a bar prep program. Over a few years, prize winners had the worst pass rate of any demographic at the law school. The statistic was so bad, I stopped incentivizing attendance. I still didn't have the science based answer though.
Recently during a discussion about improving bar pass rates, Mike Sims of BARBRI told me to watch Daniel Pink's Ted Talk. You can watch it here. Pink collected numerous research studies and wrote a book about motivation. His argument is individuals must have internal motivation to do creative tasks. If/then rewards are a terrible way to motivate someone for these creative tasks. The research he cites indicates if/then rewards not only demotivate people for continued hard work after the incentive expires, the reward also leads to worse performance. The talk is about 20 minutes. I then downloaded and listened to his audiobook Drive. He expands on that topic, and my experience tends to follow his findings. Incentives and rewards haven't worked for me.
The even better news is that Pink gives the solution to building internal motivation. He argues individuals should get autonomy. The autonomy concept seems to compliment self-regulated learning practices. The book is interesting. I highly recommend it.
As we embark on the February bar prep season (yes it is really here), I encourage everyone to work with students to help him/her establish their own purpose for passing the bar. Internal motivation is the hardest to build, but it is also the foundation for the resiliency needed for success.
Thursday, November 7, 2019
It's quite common for most of us learn to prepare for final exams...by, unfortunately, not actually preparing for final exams.
If you're like me, I just never quite feel like I know enough law to start practicing problems.
But if we wait until we feel like we know enough, we'll run smack out of time to practice exams because most of our time will be spent instead on creating and reviewing our study tools (rather than using our study tools to help us navigate through "test flights" of practice final exam problems).
And that's a problem because professors don't test on the quality of your outlines but rather on whether you can use the law in your study tools to solve legal problems.
But that's great news because...
Solving legal problems is a skill that you can learn through practice! [Like any skill, it just takes pondering, puzzling, and practicing through lots of simulated exam problems to develop expertise as a legal problem-solver.] So, this harvest season as you turn towards final exam preparations, focus much of your learning on working through practice final exam problems.
As such, the best source of practice exam problems is to ask your professor for sample exam problems. If none (or only a few available), feel free to ask your professor and academic support department if they can suggest additional practice problems. Finally, if you still can't find practice problems, feel free to work through past bar exam essays. To get started, here's some links for some nifty old bar exam essays, organized by subject, complete with hypothetical scenarios and analysis:
Thursday, October 31, 2019
Thanks to the work of social psychologists Gregory Walton (Stanford) and Timothy Wilson (Univ. of Virginia), here's a wonderful searchable database of research articles about interventions to concretely improve learning, life, and community.
And there's more great news...
It's a free! In fact, it's one of my go-to sources as I look for ways to enhance student learning.
Sunday, October 27, 2019
The Legal Skills Prof. Blog had 2 excellent posts last week regarding metacognition. The posts discuss different commonly held myths by students and faculty that have detrimental effects on learning. My experience is not only do these myths exist, but the hardest thing to overcome is the entrenched nature of the beliefs. As the posts suggest, students tend to continually slide into comfort over scientifically proven methods. I highly encourage reading the 2 posts.
Tuesday, October 15, 2019
I have been reading about the concept of "community of inquiry", a model that attempts to explain how, in a variety of contexts, groups of individuals work together to share and develop knowledge. The concept originated as a philosophical explanation of the process of scientific inquiry, but has come to be applied in other areas, including education. One of the foundational premises that distinguishes the community of inquiry model from more traditional epistemological theories is that knowledge should not be conceived of as fixed and absolute truth that can be discerned by any single rational observer, but instead as a contingent and potentially fluid understanding of truth that depends upon common agreement in a social context for its legitimacy. It is not hard to see the value of such a premise in learning and teaching the law.
Community of inquiry is too rich and intricate a concept to be explicated entirely in a single blog post. However, one aspect of community of interest theory, as applied to education, is easy to grasp, and potentially a helpful way to examine the robustness of a course, workshop, or other legal educational experience.
In this schema, a meaningful and effective educational experience depends on three interdependent elements:
- Social presence: This is the ability of those in the community of interest to perceive others, and to be perceived themselves, as real individuals in that community. This facilitates interaction and collaboration. Notably, this concept arose early in consideration of online learning platforms, where social presence may not arise naturally. At the same time, even in live classrooms, factors such as a teacher's openness and receptivity, opportunities for students to be heard, and activities and platforms through which students can work together can all enhance social presence.
- Cognitive presence: This is the extent to which the necessary "raw materials" are available and accessible for members of the community to use to construct and confirm meaning and thus to develop their own knowledge. These raw materials include reading materials, lectures, experimentation, feedback, and the like -- much of what traditional models of education consider to be the greater part of education.
- Teaching presence: In the law school context, teaching presence usually refers to the carrying out of two essential functions by the professor or lecturer: first, the design of the educational experience, including the selection of content and activities; and second, the facilitation of that educational experience, meaning the real-time execution of those activities and provision of assessment arising from them.
In the broadest terms possible, these three presences correspond to the people who will learn, the stuff they are supposed to learn, and the teacher who will help them learn it. What I think is useful about this model is that it suggests1 that we can look at pairs of these elements to help us determine how to improve three sometimes noticeably troublesome aspects of the learning experience: climate in the classroom, productivity of discourse, and transmission of content.
- Climate in the classroom is defined by the intersection of teaching presence and social presence. Thus, problems with climate (inattention, unruliness, anxiety, competition, etc.) can be addressed by considering changes not just to how the teacher is leading the class (teaching presence), but also to the structures that facilitate social participation.
- Productivity of discourse is defined by the intersection of social presence and cognitive presence. Here, then, the sense that students are not making the best use of their opportunities to interact with the teacher and with each other can be addressed by considering changes not just to the structures that facilitate social participation, but also to the raw materials that are available and accessible to the students to use for discourse.
- Transmission of content is defined by the interaction of cognitive presence and social presence. If students do not seem to be absorbing enough of the information provided in class for them to be able to build upon what they already know to construct new meaning, this can be addressed by considering changes not just to the raw materials that are available and accessible, but also to how the teacher is leading the class.
There is a lot more to explore in the community of inquiry model; this handy and practical way to think about possible ways to improve classroom experience seemed like a good place to start.
Monday, October 14, 2019
Consider the disturbing possibility that in law there is no ball or that, if there is one, no one has a really good account of what it looks like. – Pierre Schlag
The Socratic method is an iconic hallmark of legal education. Even in the face of evolving pedagogy, the Socratic method continues to be regarded as an excellent instructional tool that develops important skills and teaches students to think quickly. Yet, the Socratic method remains one of the most widely used, and possibly equally misused, tools relied upon by law faculty.
Taken to extremes, some scholars espouse the position that Socratic-style teaching should deliberately induce confusion in learners. Professor Rick Hills distinguishes “hopeless confusion” from “productive confusion” the latter in which the instructor “helps the student recognize that the way out of confusion is through focused thought and problem solving, by providing necessary information and suggesting strategies when appropriate.”1 Regardless of the distinction, students are likely to interpret instructor-induced confusion as withholding essential information or “hiding the ball.”
In his article by the same title, Pierre Schlag identifies the ironic significance of the “hiding the ball” metaphor: instead of promoting curiosity in new law students, it seduces their attention away from fundamental inquiry into law. Law students seem to prefer direct instruction that identifies the general rules and their distinctions. Professors commonly refer to this instructive style as “bar review.” Professor Hills recounted, [e]very once in a while, I engage in this “bar review” style lecturing just to make it easier. When I do, my [course evaluations] predictably tick up.2
Hills’ example begs the question to what extent should student preferences be considered in establishing legal education norms. In the face of changing enrollment demographics and declining bar passage, would being more direct with learning deliverables produce more practice ready graduates, or would it dilute the quality of legal education as we know it? Washburn Law Professor Jeffrey Jackson says that the Socratic method should not be the sole means for teaching law, but it can be a complementary tool to other methods of teaching, like Legal Writing and Analysis. By using a combination of teaching methods that provide a variety of approaches, the learning experience of law students can be greatly enhanced.3 Professor Jackson’s model allows for the type of multi-modal instruction that today’s law students deserve.
1 Roderick M. Hills, Jr., William T. Comfort III Professor of Law, New York University School of Law, In defense of hiding the ball in law school classes: Does being confused help you learn stuff?
2 Pierre Schlag, Hiding the Ball, 71 N.Y.U. L. Rev. 1681 (1996).
3 Jeffrey D. Jackson, Socrates and Langdell In Legal Writing: Is the Socratic Method a Proper Tool for Legal Writing Courses?, 43 Cal. W. L. Rev. 267 (2007).
Tuesday, October 8, 2019
One of my favorite seasons of the academic year runs between the last week of September and Halloween. In terms of academic meteorology, conditions are ideal for the formation of manageable disturbances, especially among first-year students: after a warming period of several weeks, they become a bit unsettled due to some mid-term squalls, but they retain a great deal of stored energy and begin to show signs of increasing organization, giving them plenty of room to develop before being overtaken by the late fall gloom that presages the tempest of finals.
Most of the students who breeze into my office at this time possess the three things I value most in my advisees: the motivation to try to improve their legal writing and/or analysis, the belief that they actually can improve, and the time to devote to that improvement. Earlier in the year, they may have more time but, without having received any feedback on their work, less motivation to improve. Come November, with finals looming, they may have motivation to spare, but a dearth of time, and, in some cases, a stunted belief in their own ability to improve. But right now, a lot of students have that ideal blend of motivation, belief, and time.
The more I have worked with students, the more I have come to see that the most important characteristic of time is not quantity but distribution. It is usually more helpful for me to meet with a student for 30 minutes every week than for 60 or even 90 minutes every two weeks. The quicker, more frequent meetings not only help the student feel more connected. Shorter meetings also force us to focus our work on one or two main skills each week. With more time, it might be tempting to try to cover every weakness in a student's repertoire -- active reading, organization of information, grammar, argument structure, analytical content, judgment, persuasive diction, etc. -- but this can be overwhelming. A student trying to improve in a dozen areas at once may not make progress in any of them. It is too much to think about, and there may be little sense of prioritization.
But when a student walks away from a discussion of their work with one or two clear messages about how to improve in one or two specific tasks, that makes their job for the week focused and manageable. And if that's why they focus on in their homework between meetings, then we can start the next meeting by looking for the improvement in those areas, and then follow up by addressing one or two new areas for improvement that can build upon the previous week. Timely feedback on, and immediate use of, the skills that a student works on is the best way to both hone and retain those skills. Thus, with appropriate exercises to complete between meetings, a student can make and preserve more progress in two hours of meeting time spread out over four weekly meetings than in two or even three hours of meeting time split between one meeting in week one and a follow-up meeting in week four.
After Halloween, the demands of writing assignments due, the stress of upcoming finals, and the interruptions of the holidays make it a lot more difficult to arrange these kinds of punchy weekly meetings. Now is the time to encourage your students to take advantage of the calm before the academic storm.
Monday, September 30, 2019
Titles are granted, positions are given, but it’s respect that earns you credibility. - Lolly Daskal
This is the second in a series of weekly blog posts addressing the basics of effective teaching. Last week, I addressed the importance of knowing your audience, whether from the podium of a classroom or on a larger stage. It is equally important to establish your credibility in the classroom in a manner that fosters learning and builds student rapport.
A teacher is viewed as the subject matter expert in the classroom, whether the audience is a class of third-graders, or third-year law students battling Secured Transactions. But, deference to one’s subject matter expertise can be extinguished with the speed of a hand raise. How we answer questions, or if we answer them at all, matters. Authority is not credibility. While authority may be bestowed or presumed, credibility is earned - one interaction after another. True expertise is evidenced by our ability to field and answer questions, and it can be wholly undermined by our failure or refusal to do the same.
Recent experiences have, for me, sounded the call for a return to the basics of quality teaching. To ensure that our students are well-prepared to pass state bar exams, academic support professors try to develop and maintain subject matter expertise in legal licensure exams. Yet, to my great shock and frustration, the well-reasoned questions of scholars soldiering in the trenches of bar prep have been dismissed and derided by those at the helm of bar examination. When questioned about exam scaling and essay equating, I’ve heard psychometric experts say you’ll just have to trust us. Which begs my point: expertise without earned credibility hobbles the vital relationship between those who have information and those with whom the information needs to be shared.
In legal analysis and bar essay writing, we tell students to use the facts. We teach them to not assume that the grader knows the facts. Effective teachers and presenters, likewise, do not assume that the audience has the facts. Under no circumstance will good teachers be dismissive of student questions. Strong teachers are not afraid to be questioned about the factual basis for their research and conclusions. In fact, they welcome a circumstance for intellectual challenge; they are fulfilled by the opportunity to teach, explain, and enlighten.
As law professors we are shepherding the next generation into the legal profession. Just as we would never silence the earnest question of a student in our class, we must speak persistence to power and not allow our own questions to go unanswered. When laws, policies, Restatements, changes to testing protocols, and impediments to educational access are proposed, we must take audience with those empowered to enact change. We must seek clarity and reason, because we cannot effectively teach that which we do not ourselves understand.
Tuesday, September 24, 2019
Last year, one of my international students brought to me a response she had written to a mid-tern exam question. She was wholly perplexed, because the professor had given her a low score on this particular response, and yet, even in looking at the notes the professor had written on her paper, she could not fathom where she had gone wrong. Bizarrely, the more the two of us discussed her essay, the more confused I became about why she had written what she had written. Finally, and wholly by accident, I stumbled across the source of the trouble. At one point the exam question referred to someone being "served", and my student had not recognized this usage as being connected with "service of process". The latter term she understood, but she read the off-hand and abbreviated statement that "X was served" as some form of hospitality, not legal action. ("Have some tea!") This was partly because English was her second language, and undoubtedly also partly because she did not grow up watching movie and TV shows in which frumpy anonymous operatives walk up to the protagonists, slap envelopes against their chests, and say, "You've been served!" For much of our discussion, it had not even occurred to me that this could be a source of confusion, and of course there was no way the student could have known it herself.
I thought about this episode last week, when I was attending a conference hosted by the NCBE, in which some of the presenters were discussing the ongoing evolution of the development of MBE and MEE questions. Part of that evolution includes the elimination, or at least minimization, of the use of terms whose meaning was not tied to the practice of law and might not be recognized by all of the examinees. An example given involved a torts question involving a car that had been damaged in a collision. In the original question, the defendant was identified as "Union Pacific", and it was apparent that the rest of the question was written with the assumption that examinees would recognize Union Pacific as a company that operated railroads, and that therefore the collision under consideration was between a car and a locomotive. The newer, improved version of the question simply referred to the defendant as "a railroad company", thus providing the information needed for proper analysis to all examinees.
Discussion at that point livened up a bit, as presenters and participants brainstormed about other terminology that question writers should considered changing in order to make their questions more accessible. These tended to fall into a few categories:
- References to people, businesses, locations -- generally, things that could be identified with proper nouns -- that might be recognized by some people (but not all people) as possessing some characteristic relevant to the legal analysis. For example, a question that named Gregory Hines as a plaintiff in a case in which his feet were injured might reflect the expectation that examinees would recognize Hines was famously a dancer, and that therefore a foot injury might generate greater damages to him than to an average person. A question that mentions "Reno" might rest on the assumption that everyone knows Reno is in Nevada and gambling is legal there.
- References to technology, fads, or news items from two or more decades ago that most of us who were alive and adult at that time would instantly recognize, but the significance of which might be totally lost on people currently in their 20s. A question that depends on the operation of an answering machine or the effect of a slap bracelet may only be accessible to a portion of the testing population.
- Specialized terms for everyday objects that nevertheless are not commonly used in conversation. A question that depends on knowing the difference between a banister and a balustrade, or between a lintel and a gable, is probably going to lose a portion of the examinees.
It can be hard, when writing exam questions or practice questions, to resist the temptation to make a clever reference or to give examinees the chance for a moment of recognition. But our tests are not supposed to be tests of any vocabulary but legal vocabulary. If an examinee misses the opportunity to demonstrate that he knows the appropriate rule, and can apply it skillful to relevant facts, because he did not have access to the full meaning of the fact pattern so that he could recognize the issue that leads to that rule, then the examinee has been unfairly denied a chance to shine.
Monday, September 23, 2019
The most important knowledge teachers need to do good work is a knowledge of how students are experiencing learning and perceiving their teacher’s actions. ~ Steven Brookfield
I love innovative pedagogy. Tools like mind maps, retrieval practice, spaced repetition, and self-directed leaning strategies have been game changers in higher education. I am always looking for ways to enhance and improve my teaching. But innovation is an enhancement to, and not a replacement for, the most basic tenets of quality classroom teaching. In this series of weekly blog posts, I will address teaching basics that are the telltale traits of effective teachers.
- Know your audience
We cannot afford to make assumptions about the knowledge or background of the students in our classes. Recently, I attended a conference planned for academic support and bar prep professionals. The first few hours of the conference were devoted almost entirely to explaining basic components of the bar exam. I concluded that the presenters either underestimated the skill and experience of the audience or failed to tailor a previously used presentation for the present audience. My perception of audience reaction to the content and delivery was a combination of polite appreciation, genuine curiosity, and suppressed rage. As audience participants, we have both the luxury and opportunity to make critical assessments of the projected and realized learning outcomes. But a seat on the other side of the podium also yields an enlightened perspective on effective learning strategies.
Rather than disconnect myself entirely from the redundancy of the content presented, I used the time to introspectively examine whether I had made the same mistakes. To my deep chagrin, I had. Insert hand raise emoji. I teach an early bar prep course, enrollment in which is restricted to students in their final year of law school. Because I cannot cover all the bar exam subjects in the time allotted for class, I select a few subjects. Routinely included in my course coverage are Property, Torts, Evidence, and Criminal Law. Although I intentionally include required courses, and stray away from electives that not all students will have taken, I failed to thoroughly research my audience this semester. In so doing, I did not discover, until after class had begun, that two students in my class had not yet completed the required course in Evidence.
One student was concurrently enrolled in Evidence and my course, the other had decided to wait until next semester to complete their requirements. I gut-wrenched at the thought of their polite, yet passive, frustration with me as I assigned practice questions testing hearsay - a topic with which they had no prior exposure. Of course, there are many law schools who do not require coursework in Evidence, and a corresponding number of students who learn/study the evidentiary rules for the first time during bar prep. Pedagogically, however, had I taken the time (actually a lot of time) to review the transcripts of the students enrolled in my class, I could have scheduled assignments that equally serve and challenge them all. Even though time consuming, doing my homework on my audience is just as important as being well studied in the subject matter that I teach. Suddenly my frustration with another’s seeming underestimation of my knowledge base was supplanted with embarrassment by my own overestimation of my students’.
Saturday, September 21, 2019
Multiple golf instructors told me over the years that "feel isn't real." The idea is what we think we are doing is not what our body is actually doing. A common instructional tool with golf is for a student to over-emphasize or exaggerate a new move in the swing to get a better feel. Our students are experiencing a similar phenomenon.
The Legal Skills Prof. Blog had a post last week about a new Harvard study relating to students perceptions of their learning. Not shockingly, students felt better with passive teaching but performed worse on subsequent exams. I encourage everyone to read the blog post here. I plan to send it to my students as well. As an Oklahoma Supreme Court Justice told a few of us recently, "if it isn't hard, it isn't worth doing."
Tuesday, September 10, 2019
I was in my office, polishing that day's lecture for my 1L class, when the alien appeared soundlessly outside my door, as tall and dazzling as the ones I had seen on the news. They had been on Earth for two weeks now, appearing one by one or in small groups -- at the United Nations, in research laboratories, in churches and legislatures and boardrooms and newsrooms -- each time sharing a book, or a piece of art, or a technological contraption, describing briefly the gift they were giving, and then disappearing has suddenly as they had come. The world's armies and scientists had confirmed that a huge spacecraft was parked at the L4 point in the moon's orbit, and it was presumed that was the aliens' home base. But no one knew how they were coming down to the planet. Or why, precisely.
My alien was huge -- as he stepped into my office, he had to bend forward stiffly to fit through the door frame, and even then his broad shoulders brushed the door jambs on each side. It was like watching a rockslide. But once inside, he lifted his craggy head and smiled. With his chalky skin, and an enormous row of teeth that shimmered like the effervescent material of his robes, he looked like a James Bond villain who had repented and joined a Las Vegas monastery.
"You teach," he said, in a deep stony voice that seemed to simultaneously ask and answer the question. I nodded dumbly. He then pulled from a fold of his robes what looked like a dark packet of some kind, and held it out to me. As I took it, I realized it was a book, hand bound in rich Corinthian leather, with words embossed in silver across the front: TO SERVE LAW STUDENTS.
"What is this?" I said aloud, not to the alien but to myself. I looked up at him, and with a nod he let me know that it was permissible to open the book. I ran my hand over the cover -- I had never felt a volume so warm, so soothing, like a puppy's belly -- and I lifted the book to look at the words inside. Then I felt the strangest sensation. The characters on the page made no sense at all to me; they might have been Cyrillic or katakana or Ge'ez jumbled together for all I knew. But somehow, touching that warm cover, I knew what the text meant. I knew what I was meant to do -- that afternoon, in class, with the entire 1L class before me. I would --
A sudden high-pitched gasp interrupted my reverie, and I reflexively slammed the book shut. In the hallway, eyes agape, stood my student assistant, Patty. She looked from my alien to me and back again, not sure what she should do next. Before I could say either "Run!" or "Come in!", the alien resolved the situation. He growled, "Teach, you," and then vanished. It was like a light bulb burning out -- a brief flare, and then instantly the room seemed darkened by his absence. But he left the book.
Patty ran in. "Professor MacDonald, was that an alien? What did it leave you?" She came around to my side of the desk, like a referee repositioning herself, so she could read the cover.
"It says, 'TO SERVE LAW STUDENTS,'" I pointed out. "That's what I do. I think it's a gift to help me do more for my students." I flipped open the book, turning the pages without touching the cover. "The language -- well, it all looks like gibberish to me. But the book . . . spoke to me somehow. I'm taking it with me to class this afternoon."
Patty's brow wrinkled. "I can't read any of this, but it looks like it might be some kind of code." She pulled out her phone. "Can I scan the pages? Maybe I can figure out what it says."
I nodded, and Patty snapped images of the two visible pages. I turned the rest of the pages slowly, giving her time to capture the entire text. It didn't take long. The pages were large and the font small, so there were only about forty pages total. Patty never touched the cover, so I don't think she "felt" the meaning of the book the way I did. But I thought that might be better -- perhaps, uninfluenced by that perception, she might be able to come up with a more precise, more literal translation of the text. I told her of my intention to bring the text to my 1L class that afternoon, and Patty, who enjoyed British crossword puzzles, happily left to try to crack the code.
Two hours later, I was standing at the podium at the front of our largest classroom, getting ready to teach the entire class of first-year law students. Since the start of the school year, I had been introducing them to the particular challenges and expectations of law school, with the goal of making sure that each of them would be fully prepared by the end of the semester for the final exams that would determine their GPAs, and perhaps their fates. Mine was the only class in which every 1L student was enrolled. This was a boon, because it gave me the chance to introduce Academic Success and the resources available there to all of our students. It gave me an opportunity to lay for every student the groundwork for successful performance, no matter how much familiarity they had had upon matriculation with the practice of law, law school, or even just basic sound study habits. But it was also a challenge, because it meant holding the attention of, and delivering value to, 150+ students with different aptitudes, different levels of familiarity or experience, and different degrees of confidence in their abilities. I would lose some of those students if I moved too quickly, and I would lose some of those students if I moved too slowly, and I wasn't sure there was a pace that would keep everyone engaged.
But today! Today I had the book, and it was telling me how TO SERVE LAW STUDENTS, and as the second hand swept around the face of the clock at the back of the room, bringing us closer and closer to the official start of class, I began to salivate with anticipation. I knew this would be . . . delicious.
The hand crossed the 11, and as it neared the 12, I opened my mouth and took a full breath. Gripping the book, I prepared to begin. But just as the red hand reached its zenith, a door at the back of the room slammed open, and Patty stumbled in, breathless and wild-eyed, clutching a batch of paper in one hand. Every head in the room swiveled to look at her, but she looked past them all. Her eyes found me at the podium, where I had instinctively pulled the book to my chest, and she called out. "Professor MacDonald, put it down! You can't use that book! IT'S A COOKBOOK!"
There was a jittery fluttering, like the sound of 150 startled sparrows, as the students all turned their heads back to me.
"Um, not exactly," I said. "It's more like a menu."
The sparrows rustled uneasily, as if they were about to fly.
"But look," I continued, turning to the students, "you're not on the menu. It's a menu for you. Look, all teachers know a bunch of recipes that we can use to help this student construct a useful case brief or to help that student learn to support her analysis with facts. And if I'm working one-on-one with a student, or working with a small group of students who are all craving the same helping, it's great to be able to focus on a particular recipe. But with a big group like this, I have to do more than just work through one recipe at a time. The students who have already mastered that recipe, who've had their fill of that dish, will stop paying attention. Sure, there are some basic recipes I have to make sure everyone knows, because maybe there are some students who thought they had learned it already, but they are actually missing some ingredients. Or maybe they just never learned it. But to keep everyone else in the class engaged, I have to put those recipes in the context of the wider menu. Are there variations that people can try once they've mastered the basic recipe? Maybe variations for particular occasions or circumstances? Are there more advanced recipes that build on the basic recipe? I can't teach these all in this class, but I can let you all know they exist."
The students relaxed, nestling in their seats.
"In a big class like this, it helps to move back and forth between the recipes and the menu. To make sure everyone knows how to do certain things, but also to remind people that there are always more recipes to learn if they feel they've already mastered the basics."
"Ohhhhh." It was Patty, in the back of the room, examining the papers in her hand. "I see where I went wrong. A menu, not a cookbook! And yet--"
There was a flash, and then the alien was there in the back of the room, standing next to Patty. Over the excited murmuring of the class, I heard his gravelly voice say to Patty, "You clever. Only human to decode Kanamit script. Come to our ship. We would like to toast you." He offered her his hand. She reached up to take it.
Before I could warn her, there was a flash, and they were both gone.