Wednesday, January 13, 2021

Cognitive Biases, Learning Styles, and the Bahadur/Zhang Article

As I mentioned below, Rory Bahadur and Liyun Zhang (here) have accused former legal writing professor Deborah Borman & educational expert Catherine Haras of implicit bias and white privilege because they published an article that debunks learning style theory.  (here)  They state, "Something Borrowed is an authoritatively written article. Yet, it also illustrates the ease with which superficial pedagogical research can translate into widely accepted and erroneous pedagogical recommendations due to entrenched implicit biases which perpetuate the exclusion of minority students from legal classrooms."

The authors also accuse Borman & Harris of suffering from the confirmation bias: "This ability to ignore certain powerful realities or information when it does not conform to majoritarian normativity is an example of confirmation bias."  They descibe the confirmation bias as, "a type of cognitive bias that involves favoring information that confirms one's previously existing beliefs or biases."

The biggest problem with the Bahadur/Zhang article is that it ignores the authors' own cognitive biases.  In other words, they suffer from the bias-blind spot: “The tendency to see oneself as less biased than other people, or to be able to identify more cognitive biases in others than in oneself.” (here)

First, the authors exhibit the confirmation bias: "The tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions."  They accuse Borman and Haras of focusing only on the evidence that supports their argument, but they are the ones guilty of the confirmation bias because they have ignored the avalanche of evidence that debunks learning style theory.  (In other words, they did not undertake superficial pedagogical research; Bahadur and Zhang did.)

They also exhibit the Semmelweis effect: "The tendency to reject new evidence that contradicts a paradigm."  Again, they are ignoring the mountain of evidence that refutes their position.  As Adam Lamparello has written below, "the authors do not address sufficiently the substantial empirical evidence largely debunking and thus discrediting learning style theory.[1] Indeed, there is a mountain of empirical evidence concluding that learning style theory is fatally flawed. The authors should explain precisely why this research is flawed, whether due to methodological problems, sampling size errors, a failure to consider other variables, or other limitations. Unfortunately, the article selectively cites sources that support the authors’ position but do not address the many sources that profoundly and credibly disagree with their position."

He added, "the authors make no attempt to operationalize “implicit bias” or address the substantial empirical evidence suggesting that implicit bias theory is fatally flawed.[2] For example, the authors do not address the many studies demonstrating that implicit bias does not predict biased behavior and that the Implicit Association Test has little, if any, ability, to predict biased behavior."

As I have written before, an open letter signed by 30 leading neuroscientists, cognitive scientists, psychologists and other prominent researchers and scholars declares that there is no evidence to support the notion that individual student learning styles exist such as the so-called "visual," "audio" or "kinesthetic" styles commonly identified by teachers.

Here is the letter in full:

There is widespread interest among teachers in the use of neuroscientific research findings in educational practice. However, there are also misconceptions and myths that are supposedly based on sound neuroscience that are prevalent in our schools. We wish to draw attention to this problem by focusing on an educational practice supposedly based on neuroscience that lacks sufficient evidence and so we believe should not be promoted or supported.

Generally known as “learning styles”, it is the belief that individuals can benefit from receiving information in their preferred format, based on a self-report questionnaire. This belief has much intuitive appeal because individuals are better at some things than others and ultimately there may be a brain basis for these differences. Learning styles promises to optimise education by tailoring materials to match the individual’s preferred mode of sensory information processing.

There are, however, a number of problems with the learning styles approach. First, there is no coherent framework of preferred learning styles. Usually, individuals are categorised into one of three preferred styles of auditory, visual or kinesthetic learners based on self-reports. One study found that there were more than 70 different models of learning styles including among others, “left v right brain,” “holistic v serialists,” “verbalisers v visualisers” and so on. The second problem is that categorising individuals can lead to the assumption of fixed or rigid learning style, which can impair motivation to apply oneself or adapt.

Finally, and most damning, is that there have been systematic studies of the effectiveness of learning styles that have consistently found either no evidence or very weak evidence to support the hypothesis that matching or “meshing” material in the appropriate format to an individual’s learning style is selectively more effective for educational attainment. Students will improve if they think about how they learn but not because material is matched to their supposed learning style. The Educational Endowment Foundation in the UK has concluded that learning styles is “Low impact for very low cost, based on limited evidence.”

These neuromyths may be ineffectual, but they are not low cost. We would submit that any activity that draws upon resources of time and money that could be better directed to evidence-based practices is costly and should be exposed and rejected. Such neuromyths create a false impression of individuals’ abilities, leading to expectations and excuses that are detrimental to learning in general, which is a cost in the long term.

One way forward is to draw attention to practices that are not evidence-based and to encourage neuroscientists and educationalists to promote the need for critical thinking when evaluating the claims for educational benefits supposedly based on neuroscience. As part of Brain Awareness Week that begins 13 March, we support neuroscientists going into schools to talk about their research but also to raise awareness of neuromyths.

You can find the signatories here.

In addition, my co-blogger, Jim Levy, published a post on learning styles and other neuromyths in 2019.  (here)  He stated,

The Chronicle of Higher Ed has an important article that every law professor who cares about teaching should read. The CHE article reports on the recently published “International Report: Neuromyths and Evidence-Based Practices in Higher Education” by the Online Learning Consortium which summarizes the results of a survey sent to thousands of teachers working in higher education to assess their awareness of several so-called "neuromyths" such as "listening to classical music increases reasoning ability," or "students learn best when they are taught according to their preferred learning styles," or whether one is “left-brained” or “right-brained” explains differences in how we learn.  Of these neuromyths, the most pervasive among those in higher education is that students learn best when we teach according to their self-perceived learning style. As the OLC study points out, there is no evidence to support the truth of this widely held belief. Of course, there's also no evidence to support the more fundamental point that so-called individual learning styles based on visual, auditory, kinesthetic, or similar preferences exist at all. (See here, here, here, here, and here). But perhaps the most important point to emerge from the OLC report is that continuing to adhere to these neuromyths may be detrimental to student learning because, for example, it encourages students to seek out information presented only in a particular way such as visually. This has led the study's authors to recommend that educators be disabused of these pernicious myths and instead adopt teaching practices informed by research and science.

In sum, the Bahadur/Zhang article suffers from the same biases that they accuse Borman and Haras of exhibiting.

(Scott Fruehwald)

P.S.  I am also disturbed that the authors quoted a post from a closed listserv.  Closed listservs are intended for the free and full discussion of topics within a field.  Quoting from a closed listserv hinders this process.  This practice seems highly unethical to me.

January 13, 2021 | Permalink | Comments (0)

Thursday, January 7, 2021

Adam Lamparello: A Reply to Of Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy

I invited Adam Lamparello, a legal education expert and former Associate Dean for Experiential Learning and Associate Professor of Law at Indiana Tech Law School, to write a reply to the implicit bias portion of the Bahadur and Zhang article below.  Dean Lamparello has previously written an article on implicit bias, The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education.


After reading “Of Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy,” I commend the authors, Rory Bahadur and Liyun Zhang, for writing a timely and well-written article that addresses important questions regarding legal education and pedagogy. Indeed, this article can and should promote discussions on legal education, curricular reform, and student success. Having said that, I’d like to offer the following comments on the authors’ arguments:

First, the authors do not address sufficiently the substantial empirical evidence largely debunking and thus discredited learning style theory.[1] Indeed, there is a mountain of empirical evidence concluding that learning style theory is fatally flawed. The authors should explain precisely why this research is flawed, whether due to methodological problems, sampling size errors, a failure to consider other variables, or other limitations. Unfortunately, the article selectively cites sources that support the authors’ position but do not address the many sources that profoundly and credibly disagree with their position.

Second, the authors fail to operationalize “white privilege” or control for variables in the law school learning context that may affect whether whites enjoy any privilege at all. For example, how does white privilege benefit whites who are raised in poverty? Who have diagnosed mental illnesses? Who have diagnosed learning disabilities? Who have substance abuse issues? Who were raised in abusive households? And why should we assume that the Socratic Method inherently benefits all or even most whites? In short, the issue of whether “white privilege” exists in the law school learning environment, and whether this alleged “privilege” exists across all or most law schools, is an empirical question. Generalized statements, such as those claiming that the curriculum benefits white males and is the product of white privilege, are tantamount to making allegations without any proof whatsoever.

Third, the authors make no attempt to operationalize “implicit bias” or address the substantial empirical evidence suggesting that implicit bias theory is fatally flawed.[2] For example, the authors do not address the many studies demonstrating that implicit bias does not predict biased behavior and that the Implicit Association Test has little, if any, ability, to predict biased behavior. For example:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, ‘produce a challenge for this area of research.’[3]

Additionally, the authors fail to consider whether other variables, such as explicit bias (e.g., over racism, sexism, and homophobia) produce biased behavior, or attempt to quantify implicit bias’s role in biased behavior when considering these factors. Furthermore, the article selectively cites sources that support the authors’ position, but do not address the many sources that profoundly disagree with their position.

Fourth, the authors fail to quantify the causal or correlative effect between white privilege, implicit bias, and law school success. For example, how do white privilege and implicit bias manifest in a first-year Torts or Contracts class at a particular law school? How do white privilege and implicit bias manifest in specific law schools and what is the degree of this manifestation among law schools? Surely, the existence or prevalence of such privilege, if it impacts law school performance and the quality of legal education, likely differs based on factors including, but not limited to, the diversity of an incoming class, the diversity of a law school’s faculty, the quality and accessibility of the professors, the quality of a school’s academic support program, incoming class profile (e.g., LSAT and GPA medians), and the policies regarding grading and attrition. Without such quantification, the authors’ arguments consist of normative generalizations absent sufficient factual justifications. And once again, the article selectively cites sources that support the authors’ position but do not address the many sources that profoundly disagree with their position.

Fifth, the authors’ condemnation of the Socratic Method lacks merit. The Socratic Method trains students to think analytically, which is perhaps the most important skill students need to be competent lawyers and which many students, especially those with low LSAT scores (yes, the LSAT matters), often lack.  Of course, the Socratic method alone is not sufficient, as active and engaged learning (as the authors rightfully endorse), formative and summative assessment, outcomes-based pedagogy, and professional identity and practical skills courses are all critical to developing competent graduates. But the Socratic method is a valuable and indispensable component of legal pedagogy because if students cannot think analytically, they will not succeed professionally.  

Sixth, the authors’ criticism of legal education and endorsement of learning style theory begs the question: what specific curriculum would the authors propose to address their concerns, maximize attainment of learning outcomes, increase bar passage rates, and produce competent lawyers? Unfortunately, the authors propose no such curriculum. Had they done so, they need not reinvent the wheel. Florida International University, which for several years has had the highest bar passage rate in Florida, is the best evidence of a curriculum that trains students to be excellent law students and lawyers. FIU does not admit students with woefully low LSAT scores. FIU provides robust academic support and bar preparation courses. FIU uses an outcomes and assessment-based pedagogy that relies on studies in cognitive neuroscience to maximize student learning.

Seventh, the authors disregard a simple but relevant fact: a law student’s success depends in substantial part on the individual choices that a student makes regarding, among other things, the time and effort dedicated to achieving success in law school and the legal profession. In short, mindset matters. Choices matter. Decisions matter. Relatedly, law schools must stop admitting students who are unlikely to succeed in a program of legal education or pass the bar exam. Otherwise, some law students will find themselves saddled with six-figure, non-dischargeable debt and struggling to find a job that pays above minimum wage. 

Ultimately, I commend the authors for writing about an important subject and sparking a timely and necessary discussion on issues confronting legal education. But the authors’ contentions lack empirical support. They present no empirical studies to supports their contentions and the articles on which they rely largely fail to do so. Without addressing the nuances and complexities of these issues – in an empirically-sound manner – little progress will be made.

[1] See, e.g., Kirschner, Stop Propagating the Learning Styles Myth, Computers and Education 106 (2017) 166-171; American Psychological Association, Belief in Learning Styles Myth May Be Detrimental (May 30, 2019), available at: Belief in learning styles myth may be detrimental (; Newton, P., The Learning Styles Myth is Thriving in Higher Education, Front. Psychol., 15 December 2015 | This is just a small sample of the many empirical studies suggesting that learning style theory is meritless. Instead, the authors critique a single article to support their contention that students possess different learning styles. See Deborah Borman & Catherine Haras, Something Borrowed: Interdisciplinary Strategies for Legal Education, 68 J. LEGAL EDUC. 357 (2019).

[2] See Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from:; see also Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Bot (Aug. 2019), available at:

[3] Id. (internal citation omitted).

(Scott Fruehwald)

January 7, 2021 | Permalink | Comments (0)

Of Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy by Rory D. Bahadur & Liyun Zhang

Here is a new article that will surely create a great deal of controversy within legal education.  There is much I agree with, but there is also much with which I disagree.  Adam Lamparello has written a reply to the implicit bias portion of this article, which I have posted directly above.  Jim or I (or both of us) will comment on the learning styles portion shortly. 

Of Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy by Rory D. Bahadur & Liyun Zhang.


"Legal educators who deny the efficacy of utilizing learning style theory inaccurately support their dismissal through misunderstanding and misrepresenting the science supporting such techniques. These erroneous conclusions are often the result of implicit bias and dysconscious racism favoring dominant white male norms and privileges. Such denial is not only disingenuous and inaccurate, but also highly detrimental to legal education, perpetuating a system that discourages and devalues the contributions and efforts of minority students.
Learning style preferences are a product of a student’s cultural background. Legal educators who recognize this and adapt their teaching methods to accommodate the modal preferences of an increasingly diverse student population encourage student motivation, confidence and ultimately success. Those who embrace learning style theory do not suggest that students can only be taught, or learn, in their preferred mode. Instead, they recognize the proven value of introducing new subject matter to adult learners mindful of these differences.
This paper makes four recommendations toward increased understanding and effective use of multimodal teaching methods; (1) critically examine the misunderstanding and misapplication of scientific data that supports the effectiveness of adapting teaching methods to student learning preferences, including the prevalent nomenclature mistakes made by detractors that conflate the concepts of learning styles, preferences and methods, as well as the concepts of teaching and learning; (2) recognize implicit biases and other forms of racism that interfere with the ability to reach all students; (3) show respect for our culturally diverse students by acknowledging their differences and adapting our methods accordingly; and (4) encourage legal educators to engage in cross disciplinary collaboration with fields such as neuroscience and educational psychology which have already made headway in proving the learning benefits of multimodal instruction.
Ultimately, there are voices from the privileged teaching class of the academy mischaracterizing learning science and teaching strategies to validate the mainstream way we have taught in law schools for more than a century. This mischaracterization perpetuates the exclusion of minority students from legal education, and the mischaracterization is palatable and readily accepted because of implicit bias and systemic racism."

(Scott Fruehwald)

January 7, 2021 | Permalink | Comments (0)

Violations During the Pandemic of Law School Faculties’ Authority to Decide Methods of Instruction

Professor Richard Neumann has raised some important issues on how administrators have been handling the Covid-19 pandemic.

Violations During the Pandemic of Law School Faculties’ Authority to Decide Methods of Instruction by Richard K. Neumann.

"During the pandemic, some universities have required as much “in person” teaching as possible everywhere on campus — including a university’s law school. Universities and their administrators who did this were wrong for three reasons. First, their fears that students would not enroll unless taught “in person” turned out to be unfounded. National postgraduate and professional school enrollment, including law school enrollment, actually increased even though almost half the country’s colleges and universities began the fall semester or quickly went primarily or entirely online.

Second, these weren’t decisions about public health alone. They were also decisions about the quality of education. “In person” usually turned out to be an untested and primitive form of hybrid instruction that has no track record and has never been used on any scale before. During the pandemic the choice has never been between genuine “in person” teaching and online teaching. Public health concerns continually put some students online because of contagion risks. The real choice has been between fully online teaching (nobody in a classroom) and simultaneous hybrid teaching (some students in a classroom while others participate online). In many but not all situations, simultaneous hybrid teaching is demonstrably worse than fully online teaching.

Third, university administrators who made unilateral decisions about methods of instruction violated basic rules on shared governance under the nationally authoritative 1966 AAUP Statement on Government of Colleges and Universities. The AAUP has already begun investigating some colleges and universities on this basis. And to the extent a university’s unilateral decisions included a law school, the university’s actions also violated the American Bar Association’s accreditation standards and the Association of American Law Schools’ Bylaws. A law school needs ABA accreditation for its graduates to take the bar exam, and nearly all law schools are AALS members. The ABA accreditation standards and AALS Bylaws combine to require that decisions about modality — modes of teaching — be made by a law school’s faculty, not by administrators elsewhere and imposed on the law school."

(Scott Fruehwald)

January 7, 2021 | Permalink | Comments (0)

Monday, January 4, 2021

The Disparate Treatment of Clinical Law Faculty by Robert Kuehn

The Disparate Treatment of Clinical Law Faculty by Robert Kuehn.


"In her recent presidential message, Abolish the Academic Caste System, the president of the American Association of Law Schools (AALS) called on law schools to address the caste system within law faculties by providing parity in security of position and salary to non-tenure/tenure track faculty, such as the overwhelming majority of law clinic and externship instructors.[i] Data from the just completed Center for the Study of Applied Legal Education (CSALE) 2019-20 Survey of Applied Legal Education of  95% of law schools and 1,300 law clinic and externship instructors show widespread disparate treatment of clinical instructors (i.e., law clinic and externship instructors) and a lack of progress in providing parity between those who teach in law clinics and externships and those teaching doctrinal courses.[ii]"

Of course, the above is similarly true for legal writing faculty.

(Scott Fruehwald)

January 4, 2021 | Permalink | Comments (0)

Tuesday, December 29, 2020

Mary Walsh Fitzpatrick & Rosemary Queenan, Professional Identity Formation, Leadership and Exploration of Self

Here is an excellent new article on professional identity formation, which focuses on the development of the self: Mary Walsh Fitzpatrick & Rosemary Queenan, Professional Identity Formation, Leadership and Exploration of Self.


The value-neutral approach to legal professionalism that prioritizes the duty to zealously advocate for clients within the bounds of the law, sometimes with disregard for individual values and morals, has resulted in a decoupling of one’s individual values from our understanding of the values of the legal professional. Such detachment of personal from professional values has resulted in a dissonance that impedes professional identity formation by failing to provide students and lawyers with the opportunity to understand how their individual values fit within the framework of professional values. The importance of professional identity formation as a concept that should be given greater focus in legal education is well-supported by the Carnegie Report and a wealth of research stewarded by The Holloran Center at the University at St. Thomas. Such research shows that supporting the growth of professional identity formation increases lawyer effectiveness. There are various stages of professional identity formation in members of the legal profession, the characteristics of which include: an internalized moral code characterized by deep responsibility to others, particularly the client; integrity/honesty; internalized standards of excellence at lawyering skills; ongoing solicitation of feedback and self-reflection; independent professional judgment and counsel to the client; adherence to ethical codes; and public service. Many of these characteristics of professional identity formation are also the focus of the study of leadership, but that discipline offers further insights into how to marry personal and professional values, which, at times, appears lacking in the formation of lawyer professional identity. Experts in leadership, such as Marshall Ganz, have suggested that by exploring our “story of self” — the “challenges we have faced, choices we have made, and what we have learned from the outcomes” — we can communicate our values and inspire others to act.

In this Article, we propose that one way in which law schools can address the disconnect between one’s internal values and the values of the legal profession is to explore established leadership principles, such as emotional intelligence and ethical decision making, in the context of exploring one’s “story of self.” This Article, through a careful description and analysis of “Lawyers as Leaders: The Practice of Leadership,” a course that draws from the study of leadership in business and executive training programs, will explore the ways that the lessons of leadership development, in particular using the story-of-self frame, help improve the formation of professional identity in law students, which serves as a strong foundation upon which such students can further shape and refine their identities throughout their careers. In “Lawyers as Leaders,” we reinforce self-reflection, self-awareness, and self-direction as tools to develop values of fairness, honesty and trust. Through readings, simulations, and group projects centered on teamwork, communication and the exploration of self, students are required to reflect upon and assess their deeply personal values, based upon their individual backgrounds and experiences, and connect those values to the profession and their responsibilities to their colleagues, clients, organizations and society as a whole.

(Scott Fruehwald)

December 29, 2020 | Permalink | Comments (0)

Sunday, December 13, 2020

Mentor/Coach: The Most Effective Curriculum to Foster Each Student's Professional Development and Formation by Neil W. Hamilton

Mentor/Coach: The Most Effective Curriculum to Foster Each Student's Professional Development and Formation by Neil W. Hamilton

Professor Neil Hamilton begins his new article on teaching professional identity to law students with the following sentence: "Law schools must give more attention to fostering each student’s growth toward both ownership of the student’s own continuous development and the relationship skills that clients and legal employers need."  In my opinion, this sentence lays out one of the essential goals of a twenty-first century legal education.

    In this article Professor Hamilton presents a curriculum for achieving this goal.  Here is the abstract to his article:

"Law schools must give more attention to fostering each student’s growth toward both ownership of the student’s own continuous development and the relationship skills that clients and legal employers need. A fast-growing number of law schools (almost a third of all law schools) are moving in this direction and experimenting with required professional development and formation curriculum in the 1L year to respond to concerns about bar passage, post-graduation employment outcomes, and student well-being. Since many disadvantaged students in particular need help to grow toward later stages of both ownership of professional development and relationship skills, law schools considering a Diversity, Equity, and Inclusion (DEI) initiative should give attention to required professional development and formation curriculum as part of the initiative. These skills are also important for initiatives to foster student wellbeing.

Part II of the article outlines the principles supported by empirical research that can guide curriculum development for these new student professional development and formation initiatives. The principles point toward a one-on-one continuous mentoring/coaching model as the most effective curriculum to foster each student’s growth toward later stages of these two foundational learning outcomes. Part II analyzes why combining themes from the mentoring literature and from the coaching literature to create a mentor/coach model makes the most sense to foster growth toward these outcomes. Part III outlines the principles that should inform the mentor/coach interaction with the mentee/coachee students. Part IV provides important considerations in mentor/coach selection and training. Part IV also considers how to minimize the budgetary impact of a continuous mentor/coach model for each student by gradual steps in a long-term strategic plan."

I would like to emphasize one point in the above.  Professor Hamilton asserts that such a program would particularly help disadvantaged students.  I agree strongly with this statement.  Throughout my scholarship on legal education, I have stressed that the innovations in legal education would help students from disadvantaged groups the most.  (e.g., here)  Instead of complaining how poorly minority students do on the bar, law schools and law professors need to adopt these educational innovations so minority students will do better.

(Scott Fruehwald)

December 13, 2020 | Permalink | Comments (0)

Friday, December 11, 2020

Julie Interdonato, The Consummate Legal Education: Teaching Analysis as Doctrine

I have long stressed the importance of teaching the cognitive basics in law school.  Here is an excellent article on the subject:

Julie Interdonato (Cardozo), The Consummate Legal Education: Teaching Analysis as Doctrine


This paper addresses the necessity and means of developing analysis and its written expression as an independent topic of study throughout students’ law school tenure. “Doctrine,” as it appears in the above title, is defined as the transcendent analytic concepts that underlie the common law, and the modality of their application in the law’s constant evolution. The purpose of presenting analysis in this context is to enhance analytic instruction presently provided in law school, and thereby take students one step further in their education, into the realm of the practicing attorney. In this manner, educators, building on the case law method, maximize students’ sophisticated, lawyerly thinking to the degree the practicing bar demands of recent graduates seated at their desks as new professionals.

Only in the scholastic environment is there the capacity to devote both time and purpose exclusively to detailed, continual, analytic training. In this context, professors assume the role of both teacher and senior partner, at once playing devil’s advocate and sharing their own thought processes as experienced professionals. Instruction necessarily runs concurrently with that of the traditional law school courses, thereby enhancing student aptitude in every area of legal study, and engendering a paradigm of legal education that raises the bar of analytic acumen for future generations.

(Scott Fruehwald)

December 11, 2020 | Permalink | Comments (0)

My journey this semester from "hating" Zoom to "OK, I can make this work . . . ."

Over the fall semester that just concluded, I've been blogging about my experience teaching a legal research and writing course via Zoom for the first time due to the pandemic. As I explained in the first of these posts, last spring our LRW department elected to teach the course entirely online as opposed to adopting a hybrid approach where we'd be in a classroom teaching to students who wanted to attend in person while simultaneously broadcasting the lessons to those at home who preferred to attend via Zoom.  I also taught one of those hybrid courses this semester too (an upper-level seminar using what our school calls the "BlendFlex" model) but unlike some other schools, the LRW profs here had to teach the course entirely online without the option of being able to broadcast from an actual classroom (due to the demand on classroom space because of social distancing requirements, once our department made the decision to teach the course online, we forfeited the ability to do it from a classroom).  

For me, teaching LRW from my office desk without the physicality of a normal classroom presented real challenges given the way I like to teach.  By the end of the first class or two, I already knew it wasn't going to work to my satisfaction and that I'd have to make some changes if I wanted the class to be a success. I used this blog to document my journey from not liking Zoom at all at the start of the semester to begrudgingly embracing it by the end. Indeed, in one of my final posts on the topic, I talked about discovering how much I liked Zoom for holding individual students writing conferences and may continue to offer that as an option once we return to "normal" teaching. 

I think many of us over the past semester have faced the dilemma of whether to bend our teaching style to fit the constraints and limitations of Zoom, or instead whether we should try to bend Zoom to better fit the way we like to teach. I choose the latter and documented that journey in the posts below. By the end of the semester, I was "OK" with the way things had worked out. My overall impression is that for the most motivated students, they can still learn well via this platform (though I think all of us would much prefer to be in a traditional classroom). The downside I observed is that with less motivated students, or the ones who have more difficulty staying on task, they can more easily get lost and fall behind in a Zoom class. This was reflected in my grades for the semester. In years past, the final grades would typically reflect a relatively even distribution from a few students at the very top, to the majority in the middle, and another small group at the bottom. But this semester, the distribution looks much more like a bimodal one with a larger group of students at both ends while there are few in the middle. Of course one semester is not dispositive and my observations are merely anecdotal but I share them nonetheless. 

Insofar as any readers would find the journey I document below either interesting or would gain something from the challenges I faced and tried to overcome in teaching a hands-on, legal skills course via Zoom, I've collected those posts that start with me "hating" Zoom to eventually making my peace with it. They are organized chronologically starting with the beginning of the semester to it's conclusion a few weeks ago. At the very least, it was a good learning experience for me that required me to reflect on nearly everything I was doing in the classroom, more carefully plan each lesson to maximize efficiency and impact, and forced me to stretch as a teacher. I'm sure my teaching will be incrementally better going forward as a result of this experience. 

So without further ado, below is a recap of my posts from the semester that just concluded documenting my journey using Zoom for the first time to teach a hands-on legal skills course along with other relevant notes and observations tossed in along the way.

Stay safe during the break!


December 11, 2020 | Permalink | Comments (0)

Thursday, December 10, 2020

Reply to Jim

I agree that this is an excellent article.  One of the authors has posted a version of the article that is not behind a paywall here.

(Scott Fruehwald)

December 10, 2020 | Permalink | Comments (0)

Wednesday, December 9, 2020

A great new article that provides a cognitive science based framework for teaching

I have a feeling my co-blogger Scott is going to love this one (it's right up his alley). It's a new article I stumbled across called "The Cognitive Challenges of Effective Teaching" by Professors Stephen L. Chew (Stamford) and William J. Cerbin (U. Wisc.) that pulls together an extensive body of cognitive science research into a nine point framework to guide and inform classroom teaching. It's a really great, one stop primer for any teacher (new or experienced) who's interested in research-based strategies for improving their teaching. I included the abstract below, but essentially the article asserts that there are nine "cognitive challenges" that all teachers face when it comes to helping students learn, identifies each one, provides a practical example to illustrate it, discusses a strategy for dealing with it, and then provides recommendations for further readings for those inclined to take a deeper dive. 

More specifically, the nine "cognitive challenges" identified by the authors include:

  • Student mental mindset
  • Metacognition and self-regulation
  • Student fear and mistrust
  • Insufficient prior knowledge
  • [Student] Misconceptions
  • Ineffective learning strategies
  • Transfer of learning
  • Constraints of selective attention
  • Constraints of mental effort and working memory

Among the several ways I found this article especially helpful and practical, was the use of concrete examples that illustrate each "challenge" and how to address them. For instance, on the topic of "misconceptions," the authors note that a challenge many teachers face is to disabuse students of the beliefs that stand in the way of their own learning. The example they use is the student who comes to see the professor after class to complain that "you explain everything using words. I'm more of a visual learner . . . . You need to use more pictures and diagrams in your lectures so people like me can learn better." The authors discuss how these misconceptions about learning styles negatively affect student learning and suggest a practical strategy for addressing it.

I was also struck by the section discussing the significance of student "fear and mistrust" of the professor, how that can be a significant impediment to learning, and strategies for dealing with it. Given that many 1L students complain that their professors are "hiding the ball," (I don't think we are; instead it's the nature of the subject matter and the pedagogy we employ to teach them how to dissect cases), it's got to be one of the biggest "cognitive challenges" we face as legal educators. Yet off the top of my head, I don't recall much law school scholarship on the importance of establishing classroom trust with students (dealing with "fear," yes; but "trust" not so much). Nonetheless, I suspect most of us intuitively understand the significance of fear and mistrust and employ strategies for addressing them.

I was also heartened to read the section on "knowledge transfer" which the authors describe as perhaps the most daunting of the nine "cognitive challenge" we face and the one where we're likely to have the least success.  Earlier this semester I was lamenting how discouraged I felt as a teacher after a bright idea I had for improving student knowledge transfer on what should have been a straightforward matter fell completely flat. It made me doubt my career choice and the very purpose of my professional life. But after reading Professors Chew and Cerbin describe knowledge transfer as "the Great White Whale" of classroom pedagogy, I'm able to step back from the ledge and accept that perhaps my life's work hasn't been a total waste after all.

Anyway, here's the abstract:

The authors describe a research-based conceptual framework of how students learn that can guide the design, implementation, and troubleshooting of teaching practice. The framework consists of nine interacting cognitive challenges that teachers need to address to enhance student learning. These challenges include student mental mindset, metacognition and self-regulation, student fear and mistrust, prior knowledge, misconceptions, ineffective learning strategies, transfer of learning, constraints of selective attention, and the constraints of mental effort and working memory. The challenges are described with recommendations on how to address each one. What is effective for one situation may not be effective in others, and no single teaching method will always be optimal for all teachers, students, topics, and educational contexts. The teacher’s task is to manage this complex interaction successfully.

You can download the article here. I suggest that you do.


December 9, 2020 | Permalink | Comments (0)

Tuesday, December 8, 2020

Constitution: The Darwinian Evolution of a Societal Structure by Fábio Portela Lopes de Almeida

Constitution: The Darwinian Evolution of a Societal Structure by Fábio Portela Lopes de Almeida.  E-Library


The emergence of modern societies organised according to legal constitutions is an evolutionary puzzle. Homo sapiens are the only animal species capable of living in large-scale, cooperative societies whose members are genetically unrelated individuals. But neither sociological nor biological models can adequately explain this unique feature of contemporary human societies. Recently, gene-culture co-evolutionary theory explained the emergence of human institutions, which takes into account the reciprocal influence between culture and innate psychology in the course of human evolution. Relying on this account of contemporary evolutionary theory, this book advances the claim that constitutions are a complex adaptation grounded in both our innate social psychology and specific social institutions. Constitutionalism evolved as a societal adaptation, necessary to provide a unified symbolic moral system expected by human psychology in pluralistic moral societies. More than that, constitutions also structured modern society to deal with the evolutionary pressures coming from the fast-paced changes occurring, among others, in legal and economic systems. This book develops a novel, interdisciplinary perspective about the evolution of law and the role played by constitutions in the emergence of complex contemporary societies.


(Scott Fruehwald)

December 8, 2020 | Permalink | Comments (0)

Sunday, December 6, 2020

Abolish the Academic Caste System by By AALS President Darby Dickerson

President's Message: Abolish the Academic Caste System by Dean Darby Dickerson.


"Any caste system is insidious. But most, if not all, law schools have them. In many schools, the caste system means that many individuals are not recognized appropriately or compensated fairly for their contributions. At some schools, non-tenure-track (NTT) faculty carry a disproportionate share of the teaching and service loads so that others can focus on research."

"But the division of labor is not the true problem. Many individuals in NTT roles are passionate about teaching and serving, even if they also produce or desire to produce scholarship. And in any workplace, people in different positions perform different tasks, even if the tasks are equally important. Instead, the real problems are the inequities in pay, security, and respect—and the harm the caste system inflicts on our academic programs."

"We need to eliminate the caste system—a system meant to divide—from legal education. We need to recognize the similarities in and value of the work we all perform and appreciate, not denigrate, the differences. Raising some up does not diminish the work of others. Instead, it improves the whole of legal education. Because I’ve worked at three schools that have made significant progress in improving status for legal writing professionals, clinicians, academic support specialists, librarians, and staff, I know that abolishing the caste system is both a realistic call for action and one that will benefit our students and the legal profession."

(Scott Fruehwald)

December 6, 2020 | Permalink | Comments (0)

2021 Nova Law School Symposium: “Engaging LRW Students In The ‘New Normal’ – Teaching In A Time Of Crisis”

The deadline for presentation proposals and paper submission abstracts is December 15 for a February 26, 2021 symposium.  Here are the details:

Nova Southeastern University Shepard Broad College of Law and the Nova Law Review seek submissions for its annual Symposium to be held Feb. 26, 2021. During these challenging times, it is important to discuss and examine the underlying political, social, health, technological, and legal issues that impact us all as professors, students, practitioners, and students.

“Engaging LRW Students in the ‘New Normal’ – Teaching in a Time of Crisis” will address both the challenges and opportunities presented by teaching legal research and writing (LRW) in a time of great change. It will examine the various ways LRW pedagogy has been impacted by technology, politics, and contemporary anti-racism initiatives, as well as the impact of COVID-19 on these developments. It will also examine the ways in which these various issues intersect in the LRW classroom and how LRW professors can address them.

The Symposium presents an opportunity for academics, practitioners, and students representing a variety of perspectives to explore these timely and vitally important issues. In particular, we encourage interdisciplinary presentations, but it is not a requirement. Authors and presenters are invited to submit proposals on topics including, but not limited to, the following:


• Effective strategies for Zoom and similar platforms
• Creating teacher and student connections
• Best practices and the future of online LRW pedagogy
• A defense or critique of online learning


• Supporting student and faculty wellness during a pandemic
• The impact of professional status on working conditions
• Maintaining course rigor for students dealing with challenging times


• Incorporating anti-racism initiatives into the LRW classroom
• Supporting cultural humility in the classroom
• Developing an integrated approach to social justice pedagogy

Submissions & Important Dates:

Abstracts Due Dec. 15, 2020
Articles Due Feb. 7, 2021
Symposium Date Feb. 26, 2021

➢ All materials should be submitted to Nova Law Review at


Law Review Published Article: The Nova Law Review will review, edit, and publish submissions in the 2021 Symposium issue. Articles, as well as case studies and abstracts of research in progress, will be considered for the symposium program for presentation purposes. However, only complete articles will be published in the law review. Abstracts for these papers will be due no later than the Dec. 15, 2020 deadline and will be accepted on a rolling basis until that time.

Presentations (Without Publication) based on Abstracts: The Nova Law Review will review and select presentations for the symposium. If you are interested in presenting without submitting a publishable article, an abstract of the presentation must be submitted by the Dec. 15, 2020 deadline and will be accepted on a rolling basis until that time.


About NSU Law’s Legal Research and Writing Program: The Nova Southeastern University Shepard Broad College of Law Legal Research and Writing Program is ranked 2nd in Florida and 18th nationally. The NSU LRW Program is dedicated to offering students a student-centered approach to legal writing instruction that integrates legal analysis with practical skills and professionalism. Recently, Professor Camille Lamar Campbell was awarded the 2020 Legal Writing Institute’s inaugural Influential Teaching Award. The innovative LRW Student Outreach Program was also honored in 2020 with the Florida Bar Group Professionalism Award.

For More Information Please Contact:, or the individuals below:

Olympia Duhart, Director of the NSU Law LRW Program, at

Richard Sena, Editor-in-Chief, Nova Law Review,

Hunter Scharf, Lead Articles Editor, Nova Law Review,

Karen Rose, Director of Alumni Relations,


December 6, 2020 | Permalink | Comments (0)

Tuesday, December 1, 2020

Could We Create a New Bar Exam? by Deborah Jones Merritt

Deborah Jones Merritt has posted an excellent article on the bar exam on the Best Practices for Legal Education Blog: Could We Create a New Bar Exam?.


Here’s just one modest proposal that would significantly improve the validity of the bar exam:

  • Maintain the Multistate Professional Responsibility Exam (MPRE), which tests knowledge of basic principles of professional conduct, but make the exam open book. No one can wind their way through the dense rules of professional conduct and commentary without previous study, so an open-book exam won’t make the test “too easy.” On the contrary, an open-book exam would encourage new lawyers to check the rules and commentary whenever they face a conduct issue. That’s a habit we want to encourage, not discourage.
  • Maintain two performance tests like the ones currently prepared by NCBE, but allow 3 hours (rather than 90 minutes) for each test. Expanding the time frame would make these tests more realistic measures of minimum competence. It might also make grading more reliable because graders would be faced with real-world products produced under realistic time constraints.
  • Create a 3-hour research exam that consists of multiple-choice or fill-in-the-blank questions. This exam would test the kind of quick research that lawyers do routinely: What is the statute of limitations for medical malpractice in Ohio? Does a will need witnesses to be valid in Texas? Give candidates access to any online tools they desire to do this research.
  • Create a 3-hour, multiple-choice exam that tests (a) basic understanding of U.S. legal processes and sources of law OR (b) a single substantive subject (such as civil procedure, contracts, business law, or family law). If the latter, consider giving candidates a choice of the area in which they wish to test.

(Scott Fruehwald)

December 1, 2020 | Permalink | Comments (0)

Sunday, November 22, 2020

Second Edition of "Developing Your Professional Identity"

I have just issued the second edition of my book Developing Your Professional Identity: Creating Your Inner Lawyer.  The second edition includes a new chapter on behavioral legal ethics, and it reflects the latest scholarship on professional identity development since the first edition.
(Scott Fruehwald)

November 22, 2020 | Permalink | Comments (0)

Friday, November 20, 2020

FIU Scores No. 1 on The Florida Bar, Again

Everyone knows that the administration of the Florida bar exam was a disaster this year.  Because of this, it was hard to predict what the results would be.  Well, they were pretty bad, but they were about the same as last year.  There was a 71.7 passage rate for first-time takers this year compared to 73.9% for last year.

Another thing that didn't change this year was the top-ranked law school: Florida International University with an 89.3% pass rate.  That's six consecutive years they have scored number one on the July exam.  As the National Jurist said last winter, "OK, this is getting ridiculous." (An Unexpected Leader).  FSU was second at 84.4% and UF was third at 83.9%.

What is even more ridiculous is that more law schools are not using the proven teaching approaches adopted by FIU.  As I have stated on this blog many, many times (Jim will attest to this), educational scholars have established what teaching approaches are effective and which are not.  (see my book, How to Grow A Lawyer for a detailed discussion)  There is a science to learning.  Law schools need to use it.

(Scott Fruehwald)




November 20, 2020 | Permalink | Comments (0)

Wednesday, November 18, 2020

How I Learned to Stop Worrying and Love Zoom - my embrace of online teaching (with pics!) - Part 1.

I've been blogging this semester about my journey from not liking Zoom at all back in August to figuring out how to use it to replicate a more traditional classroom experience for students. Accordingly, I thought I'd share some pics of the office videoconferencing set-up I settled upon. I intended this to be a single post but discovered that our blogging platform Typepad apparently can't accommodate more than a photo or two per post (even after I've compress them). So I've separated this post into several parts (here, here, here, and here) in order to be able to post pics to show how I've used Zoom to teach my legal research and writing class this semester in a less screen-centric, more personally engaging way. 

A bit of background that helps explain why I settled on this particular office set-up. As a department, the LRW profs at my school decided we'd teach the course this semester entirely online. Due to the need for social distancing in our classrooms, it meant there weren't any empty ones available from which I could teach my classes to an online audience or even record my lessons to be shown to students later. So I had to figure out a way to teach my LRW classes, and be effective doing it, from my desk. (As an aside, I much prefer to teach from my office at school rather than home as it puts me in a more serious, professional frame of mind. Plus at school I have access to any office equipment I need like photocopiers, scanners, and the IT and support staff).

I'll also note that before this summer, I didn't even own a video camera. I don't Skype, have rarely used Facetime and in general don't like videoconferencing. So, when we learned over the summer that we'd be teaching LRW entirely online this year, I had to gear up my office (and spare bedroom at home) and do it fast.  

Neither my office nor home desktops had cameras so I started by buying stand-alone ones mounted on a small footprint tripod to save precious desk space. After experimenting with Zoom at the end of the Spring semester when in-person classes were called, I added a second monitor and a pair of stand-alone video lights on tripods to make sure my lessons were adequately illuminated (if not always illuminating). To upgrade from my desktop's built-in (and crappy) speaker and microphone, I bought some upgraded (yet still inexpensive) standalone ones from Amazon. I love Bluetooth but figured it was better to buy USB speakers and microphone for any extra margin of reliability. In case they failed me during class (or anticipating there might be times when students wouldn't be able to hear me well enough), I also bought a headset with a built in microphone as a back-up. Altogether, my entire office set-up probably cost less than $500. It's amazing the amount of videoconferencing equipment you can buy on Amazon for a relatively small amount.

Once the semester started, it only took me a class or two to decide I definitely didn't want my classes to consist entirely of PowerPoints and screen-shares. I also decided that the whiteboard feature built into Zoom was really balky and didn't work well for me at allAs I've noted before, when I'm teaching face-to-face in a traditional classroom, I like to move around a lot, going back and forth between the podium and the whiteboard, and walking the aisles to engage the students. I make heavy use of the whiteboards by projecting writing samples onto them which we can then edit as a class. But without being able to broadcast my classes from an actual classroom, I wanted to figure out another way to replicate that experience for students. The problem with teaching from my office is that I'm physically tied to the desk (and my desktop computer) in order to operate Zoom, show slides, share my screen, etc. Thus, I couldn't turn one of my office walls into a whiteboard. Instead, I decided to buy an easel and a bunch of smaller, portable whiteboards that I could switch in and out during class. 

The pics below (and in the related posts) tell the story. I'm curious how other readers have handled teaching by Zoom. Like me, have you tried to bend Zoom to make it more like a traditional classroom experience for students or instead more fully embraced it by making your teaching fit the platform? For what it's worth, my students have told me that they really appreciated that I've tried to make my classes less screen-centric by putting myself (and the whiteboards) on camera as much as possible. Nearly all of them said they didn't like spending class time watching nothing but screens and slides. 

Compressed 3245

Dual monitors are de rigueur for teaching with Zoom. For me, using a single screen would be like trying to compete in the Indy 500 with a Yugo. Note also the standalone, USB microphone to the side of the left monitor and the (barely visible) pair of standalone USB speakers, one behind each of the monitors. All bought from Amazon and very inexpensive. I love Bluetooth devices but this time opted for the better reliability of USB accessories for the "classroom."  Not pictured is a USB headset with built-in mic that I can grab during class if students are  having trouble hearing me through the desktop mic.

Compressed 3250

Note the stand-alone video camera mounted on a small footprint tripod to conserve precious desk space. Also shown is one of a pair of video filming lights also mounted on space-saving tripods with color filters that can help to set the mood, as needed, and illuminate any props (like books) or other visual aids I might use in class.

Continued in Part 2, below (unless I can figure out how to further compress the remaining pics to fit in a single post - I've tried several things already without success. If anyone has any advice about that, I'm all ears).


November 18, 2020 | Permalink | Comments (0)

How I Learned to Stop Worrying and Love Zoom - my embrace of online teaching (with pics!) - Part 2.

Continued from Part 1. Another pic of my office Zoom set-up. FYI, I also created a similar set-up at home in case my school suddenly had to close down due to a Covid outbreak (So far that hasn't happened. My school has done a really good job keeping us safe). It was time for me to upgrade my home desktop computer anyway and with some spare parts I bought on eBay I was able to convert my single, desk mounted monitor arm to a dual arm. Adding a new pair of USB speakers, a standalone microphone, and a spare headset (with built-in mic), I'm now ready to teach from home at the drop of a hat if necessary. Altogether, it's likely cost me less than a $1000.00 to fully upgrade both my home and office systems to be fully Zoom compliant. Too bad we can no longer itemize. Compressed 3rd pic

Above is the "brains" of the operation; several whiteboards purchased from Amazon that I can prepare with text and diagrams before class to illustrate key points for that day's lesson or leave 'em blank and write on them as we go. As you'll see in the next set of pics, I use an easel placed next to my desk to frame the whiteboards in front of the camera and can switch them in and out as we go. Students have told me they much prefer my use of the whiteboards to screen-shares and PowerPoints on Zoom. 

Continued in Part 3, below


November 18, 2020 | Permalink | Comments (0)

How I Learned to Stop Worrying and Love Zoom - my embrace of online teaching (with pics!) - Part 3

Below is a picture of one of my whiteboards in situ. The easel is from Amazon and lets me position the whiteboards directly in front of the camera. I bought several whiteboards, in two sizes, so I can rapidly switch them in and out during class as needed and thereby eliminate dead spots where I'd otherwise be erasing and writing (it's different in the classroom where you can better keep students' attention even with your back turned while writing on the board). Also note the aluminum (fake) Eames chair which was also a recent purchase since having an excellent, supportive desk chair is as critical to teaching by Zoom as a scalpel is to a surgeon. You can't operate without it.


Continued in Part 4, below. 


November 18, 2020 | Permalink | Comments (0)