Wednesday, April 15, 2015
SLOs and Why I Hide the Ball (and Why You Don't Have To)
Allowing students to think through fact patters dynamically and identify legal issues is an acceptable teaching method; however, some professors take it too far. They actually mislead students by providing incorrect information and incomplete answers. They then grade students according to who is able to unscramble the misleading morass that they have provided. The result of this unfairness is that students who know to ignore these professors' lectures because they get the tip early from family members who are lawyers etc get the better grades while some students who would actually make better lawyers get lower grades. Law school is supposed to test intelligence and what these professors often end up testing is who got the "tip off" first.
Posted by: Guest | Apr 16, 2015 9:52:38 AM
I agree that some aspects of how legal education is supposed to be changing are highly problematic. One is the "dumbing down" aspect of it such as spelling out things in detail for the students, as Jeremy writes about here. Combine that with, for example, institutional requirements that a certain amount of student obtain not only passing grades, but also grades _above_ a certain level, and you have an untenable and unacceptable situation. In "real life," employees must perform at the A level every day. Law schools should reflect that reality and not require so much handholding just for students to figure out the basics. The American educational system is in crisis for good reason.
Posted by: Myanna Dellinger | Apr 16, 2015 10:38:55 AM
Some day our students may be able to review an entire transaction and see the additional issues that are worth looking at. IMO, that day is not the first day of law school in our contracts class. Nor was it at the end of their first semester. We'll see how they do on the final... Until they demonstrate greater competency with this skill, however, it seems reasonable to provide a more supportive learning environment.
I have a related question. How do you teach issue-spotting? Do you give feedback to students about their issue-spotting skills so that they can adjust their method and improve those skills? I'm new to teaching contracts and I haven't found many good exercises for teaching this (undoubtedly) crucial skill.
Posted by: Matthew Bruckner | Apr 21, 2015 6:32:32 AM
It is very exciting to get comments on the blog, so I want to respond to everyone and thank them for their comments.
Otto: Thanks for your support! I’m not sure I agree with you about criminal law and torts. Your client in a torts case or in a criminal case knows a version of the facts, but she does not know all of the legal ramifications of those facts. In a torts case, the client is unlikely to be aware of statutory remedies, for example, and in both cases there may be defenses of which your client is unaware.
Guest: There are many ways to be a good instructor and an infinite and entertaining (in retrospect) variety of ways to be a terrible instructor. I’m sorry that you had some bad experiences that go in the latter category but what you are describing would be a problem regardless of the instructor’s pedagogical approach.
Myanna: I take your point about dumbing down the curriculum. I am not opposed to all versions of dumbing down. I think I teach now in much more straightforward, real-world focused way than I did when I started teaching law, and I think it is far more effective for my students and challenges them in a way that I think is far more conducive to their grasp of the material. I have nothing to say in this context about your second point, which seems to be about grade inflation.
Matthew: I think you think you disagree with me, but I agree with you. I do not expect my students to be fully developed on the first day or at the end of the first year (or really at the end of law school, despite all the sloganeering about having students “practice-ready”). One of my points is that law schools have to push back against the profession and resist the notion that practicing attorneys have no roll in the training and professional development of new lawyers.
As to your question, that is a great segue to my next post, which will be about the integration of skills and doctrinal teaching. For now, I will say that my colleagues in legal writing help students develop their issue-spotting skills, but I use the Socratic method to do so. I ask students to tell me what they think the issue(s) is/are for every case, and we usually have some discussion about what the real issue(s) is/are and how you go about spotting it/them. Ideally, I would collect and comment on case briefs and sit down with students to talk over that written work, and I will talk about why I do not do so in the next post.
Posted by: Jeremy Telman | Apr 21, 2015 7:41:34 AM
Dear Author, I agree with your response to my original comment. I would only add that the "hide the ball" method makes it much easier and acceptable for professors to carry out such acts. The method also makes it near impossible for students to challenge professors who "cross the line" when they employ the method.
Posted by: Guest | Apr 21, 2015 2:23:47 PM
Thanks for your response, Jeremy. I look forward to learning more about how you help students develop this skill. Perhaps you'll even consider writing something up (or encouraging your colleagues to do so) about the concrete ways in which you teach this skill, give feedback to students, and assess their development. I've read through some of the teaching and learning literature looking for ideas and haven't found much that is terribly useful (at least in my view). Frankly, I've come to the conclusion that the best way to teach "issue-spotting" is to create an environment in which the students can teach themselves the substantive law well enough that the issues just "pop" off the page at them.
To the point raised in your post though, even experienced lawyers benefit from headnotes on cases, reading treatises, learning to pick up on contextual clues, etc. And your casebook likely has a table of contents that situates the case you're reading in class within a range of issues and sub-issues. I suppose that if you situate the case for the students, there is a risk that students will stop trying to pick up these contextual clues for themselves. But if you don't, there is also a risk that students won't ever appreciate why you read a case in the first instance, etc.
We definitely practice reading cases, extracting relevant facts and issues, understanding a case' procedural history in my 1L contracts class. But by second semester, I'm giving them the issue flat out and then we spend the whole class working on legal analysis trying to understand why the court reached the conclusion that it did.
Posted by: Matthew Bruckner | Apr 21, 2015 2:40:01 PM
Right on! Your comments are especially relevant to the study of contracts. With contracts, lawyers are called in to problem-solve before the deal is done, unlike tort and criminal law (the other nearly universal first-year courses), where lawyers aren't involved until after the deed is done. Spoon-fed students will not be up for the task.
Posted by: otto stockmeyer | Apr 16, 2015 6:51:59 AM