Law School Academic Support Blog

Who's Afraid of the Passive Voice?

“I used the passive voice. I am awaiting the legal writing police and will go peacefully.”

This is an actual text I sent a fellow Commissioner on a town-wide commission after sending an email expressing my disappointment that the recipients did not complete a task. Well, actually, I expressed disappointment in the task not being completed-which is, as we all know, different. I had originally written the email using the active voice, but I wanted to temper my statement by not appearing to attack the recipients. They are, after all, neither courts nor lawyers.

But here is a sacrilege I will unleash for the Academic Support audience only: sometimes, you can use the passive voice. In fact, sometimes, you should. As I await the ankle[1] bracelet that is surely coming for me, I will explain when and why you might be willing to be my partner in “crime.”

1. Distance. Sometimes your client (or other actors in your facts) have done terrible things. Or maybe, terrible things have happened, and your clients may or may not have played a role in causing them. For example, the pedestrian was hit by a vehicle vs. my client hit the pedestrian who was walking with the light in a crosswalk on a bright sunny day (with no glare). You are going to need this distance. Because your client sucks-or the facts are not favorable to them.
2. Tone: Sometimes, you would prefer not to assign blame as directly. For example,  this Court made the absolutely baffling decision to grant this this motion vs. Inexplicably, the decision was made to grant the motion. Courts don’t like being accused of misconduct.[2]
3. You don’t know who did something: you cannot place an actor in the role, so you speak of the facts as happening without attributing them to anyone.
4. You are trying to focus on the reaction to the circumstances and not the actor who created them: this comes in very handy during trials when you need to tell the Court and/or jury what a police officer knew when they stopped someone without having to say who told them that or even if it was true[3].
5. You are stating a commonly known truth: for example: using the passive voice is frowned upon.

As someone who works with a wide range of international (mostly LL.M.) students, I have found that there are some languages that tend to veer towards the passive voice (like many romance languages) and teaching these students to identify and use the active voice is a struggle for all of us. But I do tell them that finding the passive voice is as simple as looking at bumper stickers because, as we all know, “Shit Happens.”

(Liz Stillman)

 

[1] Maybe a wrist bracelet so I cannot no longer use the dreaded PV?

[2] And they are aware that the coded phrase, “with all due respect your honor,” means, “you are wrong here.” The first time a judge ever said, “I know what you mean by that,” I almost let excrement escape from my body (see, distance!).

[3] This is your hearsay “get out of jail free” card during suppression hearings. Works every time.

Once Around the Park and Home

There are a number of sources of the phrase, "once around the park and home," according to the Urban Dictionary.¹  I prefer to think it comes from an old Tony Bennett song: Please Driver (Once Around the Park Again).² The song is sung from the point of view of a man who has been dumped and is longing for his usual company around the park.  As Bennett says, "The trees tonight are snowy white. We drove around like this till dawn last New Years Eve."³ But let's be clear: driving around a park is a loop, you are not going to get anywhere new driving in circles, but you will take in the view. 

Just now, I met with a student who came in to chat about their (ungraded) property midterm and wanted me to take a look before the peer review occurred in the next property class.  Luckily there was a grading rubric and a copy of the question for me to follow along with-it has been a good long while since I took property. As I looked over what the professor was looking for and what the student had produced, I saw a large gap. The student had essentially spotted the issues and came to a correct (per the rubric) conclusion about each one but had not (with maybe two exceptions) mentioned any law or used the facts they were given to reach the conclusions.  They explained that they were only hoping to get the "correct answer" to each question. I gently pointed out that instead of IRAC, they had used IC-and that was only because I gave them credit for stating an issue because they had resolved it. On the rubric, 2 points were to each I, R, and C per question, but there were 4-6 points assigned for the analysis-and rightfully so.  Based on what I saw, they had scored badly. 

They were adamant that they knew the material. I agreed that it was more an output rather than input issue (putting law in students' heads is a different thing altogether), but unlike undergraduate exams (and ironically more like 7th grade geometry), they needed to show their work. On the one hand, I could see (but not really assume) that the student understood the class because they reached the correct conclusion, however, since all of our 1L exams are graded anonymously, their property professor would just be surprised entering the poor exam grade and could not know whose exam it was until that moment. On the other hand, it would be a shame to get an unsatisfactory grade on the exam despite knowing the material. It was a question of showing the work, contextualizing the conclusions by analyzing fact and law together, and just taking a minute to slow down and admire the scenery of IRAC as a format.

I showed the student the picture below (I took it this morning on the way to a haircut) and asked if they had ever taken a drive to look at the foliage (it is a very New England thing to do) and they said they had. I asked them where did you end up when you did that? What was your final destination? They couldn't recall but agreed that the drive was worthwhile. I made my "teachable moment noise"-which I can only assume is extremely annoying but unavoidable (sorry-not sorry). I told them that this is mainly the idea of law school essay exams:  you need to state the route (issue), take the best road (rule), and look for the reasons you have taken the trip (analysis). And where you end up is not nearly as important as the road you took and what you saw along the way (the good and the bad).  Getting from point A to point B without taking a detour into the rule and analysis is efficient but will leave you at point C (as a grade). 

 

In other words, the "correct answer" is the journey.

(Liz Stillman)

 

 

 

1. Urban Dictionary: Home James
2. 1954 HITS ARCHIVE: Please Driver (Once Around The Park Again) - Tony Bennett - YouTube,
3. Id. I mean who does not love Tony Bennett?

No regrets

As I sit here in my grungiest shorts and t-shirt--having taken off my adult style orientation outfit—I can pretend summer isn’t yet over for a minute. It has been a great summer and I am sad it is ending, and with it the promise of great academic productivity. Where did the time go? Summer always seems like an almost endless swath of free time stretching before you after graduation, but unlike Phineas and Ferb, I didn’t actually have “one hundred and four days of summer vacation.”[1]  I had maybe a week or two (if you string the days together) of completely unstructured time, so again, where did my time go from graduation until now?

1. I went to a conference in a state I do not live in and carried my laptop with me (rather than living in it for the conference). It was amazing to be with Academic Support people in person again. It was good to see the ASP family.[2]
2. I taught a boot camp type class for incoming accelerated students for six weeks. One of those weeks I was at the conference, so teaching in a hotel room was a new (and sort of exciting) thing for me. The highlight was showing my class The Alamo and the Federal Courthouse I could see from my window.
3. I found out that a friend had been diagnosed with lung cancer. I helped them deal with a surgery postponement and then the actual surgery (to the degree I could offer any help there, which is extremely doubtful). I baked and cooked and crossed the street with my offerings. When they asked me to take them for a walk after the surgery (evidently walking is the key to recovery), I asked if I should bring the 6 foot or retractable leash. They laughed-we walked. Every day until the pathology report and next surgeon’s appointment came and brought the one bit of good news that one could hope for in this situation—that it was over.
4. I went for a beach-y vacation with the whole family in a super quaint place that you need to take a boat to—and I survived the trip with my trusty behind-the-ear patch. I even survived the trip home immediately following a huge thunderstorm. Seriously, those patches are magic.
5. I supervised three students’ independent studies for their legal writing requirement.
6. I taught a week-long class for another group of starting students.
7. I watched the two children who were home for the summer work incredibly hard at their jobs. I am crazy proud.
8. I watched the one child who lives in another state continue to do amazing work in her job. She even interviewed the Secretary of Labor for an article she was writing from our house. The same house where she learned how to write. When she is more famous, I can answer all the press questions, like how tall was she in 2004?? I am crazy proud.
9. I went to my exercise class more often than usual. I picked up our farm share, went to the local pool, joined the long line for ice cream at the new local place (and ordered the same flavor each time because summer seems long enough to explore the whole menu), and ate outdoors.
10. Finally, I researched, outlined, and began writing an article which I now plan to finish before Halloween (deadlines that involve candy are much easier for me).

So, while the last entry was what I was hoping would be the most productive part of my summer “vacation,” it was not.

I have no regrets.

(Liz Stillman)

 

[1] https://www.youtube.com/watch?v=NkQrKxTFARM

[2] Shout out to the AASE Conference in San Antonio!!

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

ASP Exciting Works in Progress

This weekend, I attended the Central States Law Schools Association Scholarship Conference and ASP was well-represented. each speaker gave a talk highlighting their current works and sought feedback from the audience of faculty members. Here is just a sampling of the ASP presentations:

Cassie Christopher, Texas Tech School of Law
A Modern Diploma Privilege: A Path Rather Than a Gate

Michele Cooley, IU McKinney School of Law
But I’m Paying for This!: Student Consumerism and Its Impact on
Academic and Bar Support

Danielle Kocal, Pace Law School
A Professor's Guide to Teaching Gen Z

Blake Klinkner, Washburn School of Law
Is Discovery Becoming More Proportional? A Quantitative Assessment of
Discovery Orders Following the 2015 Proportionality Amendment to
Federal Rule of Civil Procedure 26

Leila Lawlor, Georgia State College of Law
Comparative Analysis of Graduation and Retention Rates

Chris Payne-Tsoupros
Curricular Tracking as a Denial of the “Free Appropriate Public Education”
Guaranteed to Students with Disabilities under the IDEA

I was delighted to see so many ASPers presenting Works in Progress, and I cannot wait to read and cite your published works! 

(Marsha Griggs)

Academic and Bar Support Scholarship Spotlight

New Scholarship:

Sarah Schendel, Listen! Amplifying the Experiences of Black Law School Graduates in 2020, __ Nebraska L. Rev. __ (forthcoming 2021).

From the abstract:

Law students graduating in 2020 faced a number of unusual challenges. However, perhaps no students faced more emotional, psychological, logistical, and financial challenges than Black law school graduates in 2020. In addition to changes in the administration of the bar exam (including the use of technology that struggled to recognize Black faces) and delays in the administration of the exam that led to anxiety and increased financial instability, Black communities were concurrently being disproportionately impacted by the COVID-19 pandemic. The pandemic led to increased care-taking responsibilities for many, concerns over the health of family members, and a lack of quiet and reliable space to study. Black law school graduates already struggling to juggle these challenges were also confronted with a rise in anti-Black police brutality, and the racist words and actions of politicians. As a result of this unprecedented series of stressors, many Black law graduates struggled to focus on studying for the bar, with some choosing to delay or abandon sitting for the bar altogether. Many expressed anger, disappointment, and betrayal at the profession they have worked so hard to enter. This Article summarizes the survey responses of over 120 Black law students who graduated in 2020 and were asked how the COVID pandemic and increased anti-Black violence impacted their health, education, and career aspirations. It seems likely that the impact of 2020 on the presence and wellbeing of Black lawyers in the legal profession will be felt for years to come. As professors, deans, lawyers, and policymakers reexamine the function of the bar exam and confront inequalities in legal education, we need to listen to these graduates’ experiences.

Foundational ASP Scholarship:  

Paula Lustbader, From Dreams to Reality: The Emerging Role of Law School Academic Support Programs, 31 U.S.F. L. Rev. 839 (1997)

From the abstract:

Reviews the history, rationale, development, and different program structures of Law School Academic Support Programs; briefly summarizes learning theory and explains how ASP can implement those theories to teach academic skills; and suggests that notwithstanding the significance of helping students develop solid academic skills, probably the most important work that ASP professionals do is to provide the non-academic support by making the human connection to students and believing in them.

 

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

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).

 

 

New: Academic and Bar Support Scholarship Spotlight

Good morning, everyone, and a big thanks to Steven and the ASP Blog crew for inviting me here again.  Every other Tuesday, I will be posting what will be called the "Academic and Bar Support Scholarship Spotlight."  In each post, I will highlight a publication from the academic and/ or bar exam support field. 

There will be two categories:  "ASP Foundational Scholarship" and "New Scholarship."  The first category will reintroduce the seminal pieces that developed the generally agreed upon "best practices" in the academic and bar support field.  

The second category of "New Scholarship" is self-explanatory but requires a quick note.  Traditionally, academic and bar support faculty have been reluctant to self-promote their scholarship.  Perhaps arising out of the "ASPish" moniker, this norm demonstrates the humility that sits at the epicenter of who we are as a community.  But, it has also left too much ASP/ Bar scholarship out of the spotlight.  I am hoping that this series can help solve that conundrum.    

Therefore, if you publish some form of scholarship on law school academic/ bar exam support, please send me a link.  I will also promote new scholarship referred or found independently, so if you read a new piece and find it helpful, please let me know.  

The format of the piece is not important.  Books, law review articles, online law review essays, shorter pieces ... all are welcome.  I also welcome suggestions for the ASP Foundational Scholarship category.  If a publication positively contributed to your understanding of our field, such that you think others should be aware of it, please let me know and send a link.  

Later today, I will post the first installment of the ASP Foundational Scholarship series.  No spoilers here, though; you'll have to wait for it.  

(Louis N. Schulze, Jr., FIU Law) 

Call for Proposals for Empire State Legal Writing Conference

While the conference is specific to Legal Writing, many in our community have insight in this area.  Check out the call below.

The 2021 Empire State Legal Writing Conference Wants YOU! 

The Empire State Legal Writing Conference is a biennial event dating back to 2010 (when we actually attended conferences in person). The Empire State Planning Committee is comprised of Legal Writing faculty and administrative staff from all over New York State. In addition to arguing about things like whether buffalo chicken wings are better in Buffalo or Brooklyn (ok we know who wins that one), we are also delighted to announce that we will be holding a two-day virtual conference on May 13 and 14.  

If you want to present, we want you!  While we friendly New Yorkers welcome proposals from legal writing faculty at all stages of their career, we particularly encourage proposals from newer legal writing faculty.  If you are a first time presenter afraid to take that leap, a committee member will happily assist you with your proposal. 

The Details. . .  

Cost: Free, free, free. In other words, no charge.   

I am new to teaching legal writing, should I submit a proposal? 

ABSOLUTELY! You are exactly the kind of presenter we are looking for.  Everyone has to start somewhere and the Empire State is the perfect place to start.  We will even assign you a mentor to help you prepare for your presentation, if you want.  

Does the conference have a theme? 

Yes - the theme is there is no theme; we want to encourage presentations on a wide range of topics.  We encourage both individual presentations and panels. 

What types of presentations and panels are you looking for? 

We are looking for presentations and panels on a wide variety of topics - some ideas include: 

• Transitioning from online to in-class, lessons imparted; 
• A panel discussion for legal writing professors who teach classes outside the discipline; 
• A panel for legal writing professors who publish outside of the discipline; 
• Ideas for teaching effectively (this can include a specific exercise or problem that you used that worked well); 
• Techniques for providing meaningful feedback; 

Or anything else you can come up with - the New York City skyline is the limit! 

Will we be going to see a Broadway show, or visiting Niagara Falls? 

Very funny, but look at the bright side- you don’t have to wear a suit when you present. 

Deadline and Submission Instructions for the Presentations  

Submit proposals to Anne Goldstein at [email protected] and Antonella Milevski at  [email protected] by 5:00 pm on Friday, February 12.  

Please use the following for the email subject matter line [if multiple presenters, please use the name of the person submitting the proposal]: EmpireState2021.LastName.FirstName 

Submit the proposal in word, using the same name as the email subject matter line. 

Proposals should include the following information: 

1. The presenters’ names, titles, school affiliations, email addresses, and cell phone numbers (in case of technical glitches). 
2. The title of the presentation. 
3. A description of no more than 250 words.  
4. A description of no more than 2-3 sentences for the program. 
5. The preferred length and format of session (panel/presentation/etc.). In an effort to accommodate as many speakers as possible, we are contemplating sessions of different lengths, with different numbers of speakers. We think we may have some sessions of 20 minutes, and others at 45 minutes.  

Deadline and Submission Instructions for Scholars’ Work in Progress  

We welcome your participation if you have either: 1) an idea for an article and would like to receive feedback and suggestions before jumping into the research/writing progress; or 2) if you anticipate having a draft of an article by May 2021 and would like feedback on the draft from other legal writing scholars (participants will circulate drafts in advance). 

Submit description of either category (1) or (2) to Anne Goldstein at [email protected] and Antonella Milevski at [email protected] by 5:00 pm on Friday, February 12. 

Please use the following for the email subject matter line [if co-authors, please use the name of the person submitting the work]: EmpireStateScholars2021.LastName.FirstName 

Submit the proposal in Word, using the same name as the email subject matter line. 

Descriptions should include the following information: 

1. The authors’ names, titles, school affiliations, email addresses, and cell phone numbers (in case of technical glitches); 
2. A description of no more than 250 words; and 
3. Whether you will be workshopping: 
1.  an idea for an article or 
2.  an article draft in progress (see explanation above). 

 

ASP Writers' Block on August 3rd

Kris Franklin is hosting another ASP Writers' Block zoom meeting on August 3rd at 11am est.  This will be a dedicated work session. Expect to meet in a small group of colleagues who will cycle through two pomodoros (25-minute worktime increments) in which we will turn off our email and work in a focused way on whatever project needs doing and is nourishing us in this difficult summer (scholarship is great, but does not have to be what you spend this time working on!). Afterwards, we will briefly share our progress on our individual projects and get supportive feedback from other group members.

You can find the information in the google group or you can email Kris Franklin at [email protected].

 

 

What I've Learned

One year ago this month, I wrote my first post for the ASP blog. And while it seems like only yesterday that I began my quest to bombard readers with my weekly musings, I have decided to step aside to make room for other voices to be heard through this forum. Today will be my last post as a regular contributing editor, and I will use this opportunity to reflect on the wonderful learning and growth experience that the year has brought.

I’ve learned that:

Education and advocacy are not parallel paths, but rather an important intersection at which the most effective teachers are found. I left a high stakes commercial litigation practice for a role in academic support. I naively believed that an effective teacher had to be dispassionate and objective and more focused on pedagogy than on legal advocacy or controversial topics. However, I grew to realize that the very skills that made me an effective lawyer still guided me in the classroom to teach my students and to open their minds to new perspectives. My realization was affirmed when ASP whiz, Kirsha Trychta, reminded us that the courtroom and the law school classroom are not that different.

Anger can have a productive place in legal education and scholarship. I don’t have to conceal or suppress my passion to be effective as a scholar. I am angry on behalf of every summer (or fall) 2020 bar taker. I am bothered by states that are so tethered to tradition that they refuse to consider the obstacles and challenges of preparing for a bar exam during a pandemic. It troubles me to see law schools close the doors to their libraries and study spaces, and yet expect 2020 bar takers to perform without the benefit of quiet study space and access to internet and printing. I am flat out disgusted by the notion of forcing law students to assume the risk of death to take the bar exam. And I waive my finger to shame the states that have abandoned exam repeaters and that waited or are still waiting to announce changes to the exam dates and format after the bar study period has begun. These states have essentially moved the finish line mid-race, and our future lawyers deserve better. But thanks to the vocal efforts of others who have channeled their righteous anger into productive advocacy and scholarship, I’ve seen states like Indiana, Michigan, Nevada, Utah, and Washington emerge as progressive bar exam leaders in response to a crisis.

Silence is debilitating. Like so many others, I was taught to make myself smaller, to nod in agreement, and avoid topics that would make others uncomfortable. The untenured should be seen, not heard. I am the person that I am because of my collective experiences. Stifling my stories and my diverse perspective would be a disservice to my calling and to the next generation of lawyers who need to be met with a disheartening dose of racial reality. As soon as I showed the courage to speak up and step out of other people’s comfort zones, I found that I was not alone. My ASP colleagues, like Scott Johns, Louis Schulze, and Beth Kaimowitz and others, were right there speaking out too.

Glass ceilings become sunroofs once you break through them. In the last few years, I have seen more and more of my ASP colleagues earn tenure or assume tenure track roles. And while a job title or classification, will never measure one’s competence or value, our communal pushes for equity are visibly evident. ASP authors continue to make meaningful contributions to scholarship in pedagogy and beyond. Thank you to Renee Allen, Cassie Christopher, DeShun Harris, Raul Ruiz, and the many, many, many others who I can’t name but whose work I’ve read and admired. With varied voices, we are paving the way to enhanced recognition and status in the academy, and with mentorship and writing support we are forming the next wave of formidable ASP bloggers, scholars, textbook authors, and full professors.

(Marsha Griggs)

Academic Archetypes: The Overconfident Student*

Overconfidence has become a new norm in legal education. More and more students are entering and graduating from law schools with self-perceptions that exceed their proven competencies. We cannot know whether law school attracts overconfidence or breeds it, but studies show that overconfident personality types abound in law schools.[1] Productive overconfidence can yield high rewards through the generation of a “can-do” mindset. This type of benign overconfidence prompts a scholar to submit a paper proposal and commit to presenting at a conference or symposium before completing a substantial draft of the work. This rather common phenomenon allows us to believe, based on past successes or purely aspirational hopes, that the commitment to deliver by a stated deadline will force our hand to keyboard to produce the committed work.

However, it is the malignant overconfidence that has seemingly become pandemic in the law school environment. The overconfident student archetype personifies a counterproductive level of self-assuredness that presents a challenge to law school faculty, those manning academic intervention programs, and the professional development and career services teams. The overconfident student has a distorted self-perception that internalizes affirmation, from any source, and dismisses constructive criticism. If ever forced to reckon with a shortcoming, the overconfident student code shifts it to an endearing quirk.

The risk to students in this archetype is that their overconfidence prevents them from seeing anything inconsistent with their self-perceptions. The overconfident student views success as any score above rock bottom. Because failure and poor performance will be attributed to teacher error or incompetence and to hyper-competitive student peers, low formative grades and below-mean performance will not register as warning signs for potential failure.

We all face overconfidence in the law school environment. And we can all play a role to combat the failure risks that it carries. First, we can and should set degree advising goals for students who exhibit counterproductive overconfidence. From ASP to Career Services to doctrinal office hours, we can identify GPA means for internships or clerkships in the student’s field of interest. We can present statistics that show bar passage results based on LGPA and class quartile ranking, and comparatively identify where the student is trending. We can demonstrate through alumni testimonials or raw data (if collected and maintained) the added difficulty of learning bar tested content through self-study or bar review instead of taking bar subjects while in law school. This type of blunt force mathematical trauma may be the only thing that resonates with the overconfident student type, because it presents facts and raw data that cannot be dismissed as assumption or overcome with misplaced self-assuredness.

(Marsha Griggs)

*Excerpted from Academic Archetypes, a work in progress by Marsha Griggs, Associate Professor, Washburn School of Law.

[1] Jonathan F. Schulz,  and Christian Thoni, Overconfidence and Career Choice, PLoS ONE 11(1): e0145126. doi:10.1371 (2016). 

Making Real Connections

We’re more connected through social media than ever before . . . [yet] we’re losing our ability to think and feel. It’s hurting our personal connections and making us more distant and lonely.  – Dallas Morning News Editorial Board

This week I recount the sad story of the late Ronald Wayne White. Who was Ronald Wayne White? His name may not ring a bell. White was not a celebrity or public figure. If Ronald Wayne White is known for anything, it is for being unknown. According to published reports, White was found dead inside his apartment this month. Medical examiner reports confirmed that his death had been undiscovered for three years. There are indeed unanswered questions surrounding this late discovered death, but the sad fact is that a man “apparently went missing for three years and no one noticed he was gone.”¹

White’s tragic story is an opportunity for us to examine our connections to others. Those who attend and work inside law schools are subject to a special kind of isolation that is par for the course. Based on the volumes of reading, outlining, researching, writing, editing, and memorizing that is required to succeed in law school, we expect students and faculty to work in isolation for long stretches of time. The top students regale in finding that isolated corner hidden deep in the stacks of the fourth floor of the library where no one comes near to make a sound or disturb the concentration necessary to maintain top student status. I too am guilty of lauding solitude. I have, with giddiness, told my colleagues how much I look forward to holiday breaks alone at home to make some headway on my writing project.

While a certain degree of do-not-disturb-mode is both necessary and beneficial for productivity, I worry that we have become desensitized to isolation. We are all at risk of transcending deep focus into dangerous seclusion. Our law students, especially those who are far from home, or those who have no stable home to claim, are not immune to the risk. Loneliness is not a state of friendlessness, it is a position of lacked connection. People who are married, students in study groups, and faculty who interact well with colleagues can still suffer from debilitating loneliness that can only be cured with meaningful connection.

Connectivity cannot be measured by “likes” and social media followers alone. Please check on your students, your colleagues, and yourselves. If you have students who are far from home or without family, why not invite them to Thanksgiving dinner? Likewise, if there are international students in your program who are removed from our culture, maybe treat them to a meal over break. Perhaps your need to develop a work in progress or meet an article submission deadline can be morphed into an opportunity to interact with your colleagues by planning a “write-in.” Faculty colleagues from all disciplines can find an agreed window of time just to get together to write. Sometimes the camaraderie of shared presence and singleness of purpose can act as a proxy for interaction. Maybe extend your shared driveway morning wave, by baking (or buying) cookies and delivering them to a neighbor or senior citizen on your block that you have not spoken words to in years. Real connections don’t have to be big to be meaningful, they just have to be made.

(Marsha Griggs)

1 A man was found in his apartment three years after his death – and what it can teach us about loneliness (Dallas Morning News Editorial, November 21, 2019).

Let's Write!

Start writing, no matter what. The water does not flow until the faucet is turned on. — Louis L’Amour

Scholarly writing is the professional currency of academia that buys the respect and recognition that is needed to advance. In some career tracts, writing and publication are required. In others, optional writing can be easily pushed to the back burner of an otherwise busy day, week, year . . . career.

It is a challenge, to say the least, to find time to write when you have skills courses to teach that require multiple formative assessments over the span of the semester. On top of a course load with more grading and feedback expectations than other faculty may experience, ASPers typically have endless days with a steady stream of student appointments and walk-ins. But then there’s summer. NB: In ASP world, “summer” can be that eight to 17-day period between the bar exam and new student orientation where we: build our new class preps, learn about changes to the bar and prepare presentations to our faculty and administration re the same, or possibly squeeze in a week to tend to a home project or health condition that we’ve neglected all year.

Great idea, but who has time for it really? Honestly, we don’t have time to write with all the pressing demands on our time; but we can make time to write on topics about which we are passionate and knowledgeable. Joining a writing group, whether through AASE or on your university campus, is a great first step. As a member of a writing group, you will find opportunities to receive supportive guidance and feedback on your writing.

A possible second step is to use your own appointment/calendaring protocol to carve out one hour per day or a 3-hour weekly block for writing and self-expression. ASP writing can also be intimidating to those of us without a doctrinal area of expertise. But it does not have to be. There is no Blue Book rule that says ASPers must write about pedagogy, testing, or learning. We all have general levels of doctrinal expertise or we could not help students to succeed in law school and on the bar exam. It would not be a huge leap to expand on a favorite doctrinal area and research and write on ambiguous rules or inappropriate application of policy.

I’ve never done this before; I’m not sure how to. ASP writing might be most daunting to first-generation lawyers and law professors. It is important to not self-exclude oneself by concluding that you don’t know where to being or to question whether anyone would be interested in what you have to say. If you are not yet ready to submit a journal article, please consider the array of other outlets for your writing including, but certainly not limited to, The Learning Curve (published by the AALS section on Academic Support), Raising the Bar (published by AccessLex), the Law Teaching Blog (hosted by the Institution for Law Teaching and Learning), and your local bar journal newsletters and state bar publications. You can present your work-in-progress at conferences to get ideas to improve your work before submission. Pan this Blog and the ASP listserv for calls.

You do not have to know today what you will write, when you’ll make time to do it, or where you will be published. First things, first. Pick up a pen and notepad or blank journal that you’ve squirreled away in a dresser drawer. Pull out that laptop and create a new folder in your drive called “Writing”. And write. Just write. If you are an outliner, build an outline. If you don’t know where to begin write journal-style entries about a topic that you disagree with or strongly advocate for. Write about something that you’ve been trying to convince your faculty to adopt. Brag about something that your law school does better than everyone else. Write about something entirely non-legal (your kids’ learning process, your journey to patience, struggles with emotional well-being, etc.) and then make analogous parallels into law teaching and the needs of our students. Your first draft writing need not be perfect, polished, or persuasive. It can be deficient, descriptive, and underdeveloped. But it must be written to be improved and shared with the world.

Just. Write.

(^©Marsha Griggs)

CSLSA Annual Conference

Do you have a great writing idea but don't know how to get started, or a project that you've started but pushed aside for other tasks? Bring your great writing idea or very rough draft to the Central States Law Schools Association ("CSLSA") annual conference September 20-21, 2019, at the University of Toledo College of Law. CSLSA is a regional organization of law schools dedicated to providing a supportive forum for conversation and collaboration with respect to scholarly activity by law school academics. CSLSA recognizes that scholarship ideas come in many shapes and stages, so presentations are welcome, whether just an early-stage idea or a completed draft.  CSLSA is about helping you grow as a scholar, so you’ll enjoy a relaxed and encouraging environment where you can ask questions and get helpful feedback on your work. At the CSLSA conference, faculty from across the country and around the world come together to collaborate and forge lasting connections. Finding childcare can be challenging, and your children are welcome at the law school while the conference is being held.  If you need help finding a local childcare provider, please contact the CSLSA president at [email protected]. Registration is free to faculty and staff at member schools. For a list of member schools and registration information visit the CSLSA website.

Let's WRITE!

To His Coy 1L Students

O, why must IRAC dominate the page

When brilliant students try to write a bit,

Their eloquence confined, as in a cage,

Restricting scope and rhetoric and wit?

 

O, why must you capitulate to rote?

Abandon your unique persuasive voices?

Unless -- the logic these formats connote

Provides you with a better set of choices . . . ?

 

If you surrender to formality

You’ll find the structure helps you to direct

Your argument to only what is key,

And lets the reader know what to expect.

 

A writer who’s committed to a norm

Ironically is freed up to perform.

 

[Bill MacDonald]

Summer/Fall 2018 Learning Curve and Winter/Spring 2019 Submission Announcement

Dear Colleagues:

 

The editors of The Learning Curve are pleased to publish Summer/Fall 2018 edition which is [linked below]. In this edition, you will find articles related to the theme of diversity. We hope you will find these authors’ articles as insightful as we did as editors.

 

We are currently considering articles for the Winter/Spring 2019 issue, and we want to hear from you! We encourage both new and seasoned ASP professionals to submit their work.

 

We are publishing a general issue so we are considering all ideas related to academic support. If you have a classroom activity you would like to share, individual counseling techniques, advice for the academic support professional, and any other ideas, we want to hear from you!

 

Please ensure that your articles are applicable to our wide readership. Principles that apply broadly — i.e., to all teaching or support program environments — are especially welcome. While we always want to be supportive of your work, we discourage articles that focus solely on advertising for an individual school’s program.

 

Please send inquiries or your article submission to [email protected] by no later than December 15, 2019. (Please do not send inquiries to the Gmail account, as it is not regularly monitored.) Attach your submission to your message as a Word file. Please do not send a hard-copy manuscript or paste a manuscript into the body of an email message.

 

Articles should be 500 to 2,000 words in length, with light references, if appropriate. Please include any references in a references list at the end of your manuscript, not in footnotes. (See articles in this issue for examples.)

We look forward to reading your work and learning from you!

 

-The Editors

 

DeShun Harris, Executive Editor

Kevin Sherrill, Associate Editor

Sarira Sadeghi, Assistant Editor

Nancy Reeves, Technology Editor*

 

*Special thanks to Christina Chong (outgoing Technology Editor) for her contributions to this edition.

  Download Learning Curve Summer Fall 2018

IRACs All the Way Down

To lawyers, law students, and professors, the IRAC formula is as commonplace a tool as yellow highlighters or The Blue Book.  Some may tout or prefer one of its dozens of variations, particularly in specific situations, but at heart, they all do the same basic job of providing a reliable structure for building an argument.  It may take some time for students to internalize that structure and use it consistently.  Once they do, however, some students lean on it heavily, as a way of making sure all the expected components of their analysis (Issue, Rule, Application, Conclusion) are included.  Other students may see it with more anxiety, as a set of expectations imposed by certain professors; they may worry that if they don't use IRAC, they won't receive full credit in their essay responses.

In either case, students can sometimes be stymied when trying to adhere to IRAC format in an essay test response that requires multiple pieces of analysis, like a rule with multiple elements.  For example, trying to fit a discussion of a negligence claim into one big IRAC paragraph -- as some students may feel they are required to do -- may start off well, as the student correctly identifies the question of negligence as the issue and the requirement to show duty, breach, causation, and damages as the rule.  But then the application section may become messy, as the student tries to write about each element.  If more than one element depends on tricky or subtle facts, or if there are multiple arguments and counterarguments to some elements, then the student may struggle to control multiple threads of analysis, without additional structure, in an enormous paragraph that spreads over two or three pages.  The student may lose some of those threads, and so might the reader.

This is an unsurprising consequence of the emphasis on sticking to an overall IRAC format: students, for comfort or consistency, might feel compelled to turn every argument into a unitary IRAC.  This may be less of a problem for long-term projects, like a legal research and writing memo, where a student may be given more instruction about formatting and will have opportunities to rewrite and edit their essays.  But on a timed assignment, like a final exam, the urge to create one big IRAC argument -- or the fear of not doing so -- can slow students down and inhibit clarity.

One way to help students improve their relationships with IRAC is to point out that a well-reasoned argument can have layers of IRACs built into it.  The Application portion, after all, is where the meat of the analysis appears, and if that analysis requires that the student examine multiple elements, each element could be discussed in its own separate sub-IRAC paragraph.  To use the negligence example:

Issue: Negligence claim
Rule: Duty, Breach, Causation, Damages
Application:
    Issue₁: Duty
    Rule₁: [e.g., Obligation to act as reasonably prudent person under circumstances]
    Application₁: [Application of rule to specific facts]
    Conclusion₁ re: Duty
    Issue₂: Breach
    Rule₂
    Application₂
    Conclusion₂ re: Breach
    [etc.]
Conclusion re: Negligence claim

This layering of IRACs allows students to take advantage of the order imposed by the format, while still providing the flexibility to address separate sub-issues separately.  Theoretically, the layering could continue indefinitely, if certain elements have sub-elements to consider:

    Issue₃: Causation
    Rule₃: Actual cause and Proximate cause
    Application₃:
        Issue_3A: Actual cause
        Rule_3A
        Application_3A
        Conclusion_3A re: Actual cause
        Issue_3B: Proximate cause
        Rule_3B
        Application_3B
        Conclusion_3B re: Proximate cause
    Conclusion₃ re: Causation

This layering of IRACs may not always be the most artful way to organize a legal discussion, but in an exam situation in which students are trying to maximize speed, completeness, and clarity simultaneously, it can provide an efficient way for them to put together a complex analysis.

(Bill MacDonald)

Reminder: August 15th Deadline for Submissions to the Learning Curve

Partial text from a June 15th posting to the ASP listserv:

We are currently considering articles for the Summer/Fall 2018 issue, and we want to hear from you! We encourage both new and seasoned ASP professionals to submit their work.

We are particularly interested in submissions surrounding the theme of supporting diverse students. Do you have orientation, class, or workshop exercises that focus on creating an inclusive environment? Do you have techniques to support students on an individual basis? Do you have a unique way of collaborating with student groups to create a sense of belonging? Is there a subset of students you've identified and supported who are diverse in ways that people overlook? 

Please send your article submission to [email protected] by no later than August 15, 2018. (Please do not send inquiries to the Gmail account, as it is not regularly monitored.) Attach your submission to your message as a Word file. Please do not send a hard-copy manuscript or paste a manuscript into the body of an email message.

Articles should be 500 to 2,000 words in length, with light references, if appropriate. Please include any references in a references list at the end of your manuscript, not in footnotes. (See articles in this issue for examples.)

We look forward to reading your work and learning from you!

Regards,

The Editors

DeShun Harris, Executive Editor*

Kevin Sherrill, Associate Editor

Christina Chong, Technology Editor

Call for Articles for the Winter Issue of The Learning Curve

For our upcoming Winter issue, we are particularly interested in submissions surrounding the issue’s themes of academic advising, counseling, and troubleshooting performance issues our students' experience. Are you doing something innovative outside of the classroom that helps motivate a new generation of law students? Do you have classroom exercises that promote the positive effects of supportive peer groups? Do you use technology to facilitate difficult conversations with students who are performing at a level they find acceptable?

Please ensure that your articles are applicable to our wide readership. Principles that apply broadly — i.e., to all teaching or support program environments — are especially welcome. While we always want to be supportive of your work, we discourage articles that focus solely on advertising for an individual school’s program.

Please send your article submission to [email protected] by no later than December 1, 2017. (Please do not send inquiries to the Gmail account, as it is not regularly monitored.) Attach your submission to your message as a Word file. Please do not send a hard-copy manuscript or paste a manuscript into the body of an email message.

Articles should be 500 to 2,000 words in length, with light references, if appropriate. Please include any references in a references list at the end of your manuscript, not in footnotes. (See articles in this issue for examples.)

We look forward to reading your work and learning from you!

Regards,

The Editors

Chelsea Baldwin, Executive Editor

DeShun Harris, Associate Editor

Christina Chong, Technology Editor