ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Thursday, April 23, 2015

On Issue-Spotting and Hiding the Ball

As for the series on law school instruction and law schools in general that Jeremy started here recently: count me in!

I agree with Jeremy’s views that issue-spotting is very important in helping students develop their “practical skills,” as the industry now so extensively calls for.  As Jeremy and Professor Bruckner do, I also never give up trying to have the students correctly issue spot, which in my book not only means spotting what the issues are, but also omitting from their tests and in-class analyses what I call “misfires” (non-issues).  In my opinion, the latter is very necessary not only for bar taking purposes, but also in “real life” where attorneys often face not only strict time limits, but also word limits.

But I’ll honestly admit that my students very often fail my expectation on final tests.  Some cannot correctly spot the issues at all.  Many have a hard time focusing on those aspects of the issues that are crucial and instead treat all issues and elements under a “checklist” approach overwriting the minor issues and treating major issues conclusorily.  Yet others seem to cram in as many issues as they can think of “just in case” they were on the test (yes, I have thought about imposing a word limit on the tests, but worry about doing so for fear of giving any misleading indication of how many words they “should” write, even if indirectly so on my part). 

Maybe all this is my fault … but maybe it isn’t (this too will hopefully add to Professor Bruckner’s probably rhetorical question on how to teach issue-spotting skills).  Every semester, I post approximately a dozen or so take-home problems with highly detailed answer rubrics.  I only use textbooks that have numerous practice problems long and short.  I review these in class.  I also review, in class, numerous other problems that I created myself.  I give the students numerous hints to use commercial essay and other test practice sources.  Yes, all this on top of teaching the doctrinal material.  All this is certainly not “hiding the ball.”  Frankly, I don’t really know what more a law professor can realistically do (other than, of course, trying different practice methods, where relevant, to challenge both oneself and the students and to see what may work better as expectations and the student body change).

So what seems to be the problem?  As I see it, it doesn’t help that at least private law schools at the bottom half of the ranking system have to accept students with lower indicia of success than earlier.  But even that hardly explains the problem (who knows what really does).  Some law schools have to offer remedial writing classes and various other types of extensive academic support to students in their first semesters and beyond.  Some of the problem, in my opinion, clearly stems from the undergraduate-level education our students receive.  In large part, this makes extensive use of multiple-choice questions for assessments and not, as future lawyers would benefit from, paper or essay-writing tests or exercises.  Thus, undergraduate-level schools neither teach students how to spot "issues" from "scratch" nor do they teach them how to write about these.  Numerous time have my students told me that they have not really written anything major before arriving in law school.

Why is that, then?  Isn’t that problem one of time and resources; in other words, the fact that not just law professors, but probably most university professors, are required to research and write extensively in addition to teaching and providing service to their institutions?  For example, see Jeremy’s comments on his busy work schedule here.  Something has to give in some contexts.  At the undergraduate level, maybe it’s creating and grading essays and instead resorting to machine-graded multiple-choice questions and not challenging students sufficiently to consider what the crux of a given academic problem is.  Just a thought.  I am, of course, not saying that we should not conduct research.  I am saying, though, that I find it frustrating that lower-level educations, even renowned ones, cannot seem to figure out how to use whatever resources they do, after all, have to train their students in something as seemingly simple as how to write and how to think critically.

At the law school level, some “handholding” and various types of practical assistance is, of course, acceptable.  But to me, the general trend in legal education seems to be moving towards a large extent of explaining, demonstrating, giving examples, setting forth goals, assessments, and so forth.  I agree with what Jeremy said in an earlier post that we should at some point worry about converting the law school education process into one that resembles undergraduate-style (or high school style!) education.

Recall that the United States is not an island unto itself.  Many studies show that our educational system is falling behind international trends.  Where in many other nations in the world (developed and developing), students are expected to come up with, for example, quite advanced research and writing projects for their degrees, we are - at least in some law schools - teaching students just how to write, and what to write about.  This is a sad slippery slope.  Until the American educational sector as such improves, I agree that we should do what we can to motivate and help our students.  But I also increasingly wish that our “millennial” students would take matters into their own hands more and take true ownership of learning what they need to learn for a given project or class with less handholding, albeit of course still some guidance.  Nothing less than that will be expected from them in practice.

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Thanks for the further dialogue about issue-spotting and for your specific tips.

I'm curious why you (and Jeremy) seem so critical of the notion that of "converting the law school education process into one that resembles undergraduate-style (or high school style!) education." Particularly since you seem to think that our students used to--but are no longer--receiving an excellent education before they arrive in your classroom. Let's take that notion as true. What do we do about it? We could simply lament the declining caliber of students and point fingers at their prior education. But that's no solution. Why isn't one solution to model the law school classroom, in part, on the types of educational experiences our students used to get in college/high school? If they are coming to us less prepared, then I think we should consider meeting them where they are and trying to accelerate their learning so that they "catch up" by graduation. Even if that means, that I use techniques that my wife used to use with her high school students when she was a teacher. Obviously, this isn't the only possible response. The most common response appears to be to outsource the remediation to an academic support team. But, this seems to conflict with Jeremy's notion of breaking down the walls between skills, writing, and doctrine. In any case, I think that if our students are leaving class without achieving the basic skills that we think they ought to achieve, then professors need to carefully consider whether our methods are in need of revision.

Relatedly, I also think you may be wrong about the expectations of practice. Not as a historical matter, but as a prospective one. If our students graduate--en masse--as less qualified to be attorneys, that doesn't mean they won't find jobs as attorneys. Everyone predicts a continued need for tens of thousands of new lawyers every year. If the problem is systemic academic under-preparedness, the expectations of those in law practice seem just (or more) likely to change as anything else.

Posted by: Matthew Bruckner | Apr 24, 2015 6:36:23 AM

To the extent that I agree with Myanna that we should not be replicating educational approaches that are appropriate for secondary school or college, let me say this:

I think educators at all levels work really hard.
I think educators at the college level are trying to get students to the point where they grasp the massive amounts of material to which students are exposed in college courses.
College education rarely asks students to take the next step, which is to apply multiple, distinct complexes of rules and theories to unique factual scenarios.
To the extent that there are deficiencies in students’ preparedness for law school, I think it unlikely that the best solution is to replicate the pedagogical approaches responsible for those deficiencies.

Posted by: Jeremy Telman | Apr 24, 2015 9:21:03 AM

Thanks, Jeremy and Matthew, for your interesting comments on my blog.

Matthew, as mentioned in my blog, I agree that we may have to shift our methods until we find something that works for this generation that has recognized different skills and expectations than prior generations. I think we all want to help our students become as ready as skilled and knowledgeable as possible by graduation even if, as you say, we meet them where they are when they enter law school. But the problem is if we can (continue to) do just that. Remember that there are currently much talk about, for example, reducing law school to just two years instead of three. Also, when you say that “the expectations of those in law practice seem just (or more) likely to change as anything else” I agree, but not with where you seem to be coming from with that statement, namely that hiring practitioners will be expecting less from our graduates, not more. The opposite is true. See the extensive literature about the legal industry calling for us to create “practice-ready” attorneys and not wanting to foot the bill for new attorneys learning skills that the industry thinks we can and should impart to our students in law school.

Is all that possible? Maybe. I will certainly try my hardest. Just remember that at the same time, law students almost unanimously already complain of too heavy study loads. I don’t know how much more we can expect them to absorb in perhaps as little as semesters. Remember that in other Western nations, legal educations take as much as seven years or more, not two.

As for your comment that “[e]veryone predicts a continued need for tens of thousands of new lawyers every year,” I’ll blog about that separately in a few days. I basically agree, but that need could almost be supplied by law schools in just one state; California. As the related joke goes: If you get pulled over in California, police officers will not ask you to see your driver license, they’ll just ask for your bar number.

Have a great weekend!

Posted by: Myanna Dellinger | Apr 24, 2015 1:26:03 PM

Some folks say we should reduce law school to 2 years. Some folks say that we should create more practice-ready graduates. I haven't read anything that suggests we can do both at the same time.

Frankly, if the market demands tens of thousands of new attorneys every year and law schools don't produce that many "practice-ready" graduates each year, law firms may be unhappy but it's not clear to me what their other options will be. It's also unclear that law firms really care about "practice-ready." see, e.g.,

Posted by: Matthew Bruckner | Apr 27, 2015 6:30:10 AM