Monday, November 11, 2019
I have often criticized the use of the Socratic method in law school. I think that this traditional method of law school teaching is overused and that professors often apply it in a superficial manner. However, I also believe that proper use of the Socratic method is important in developing law students' legal reasoning and problem-solving abilities. It should be refined and employed with other teaching methods, such as problem-solving exercises, formative assessment, and metacognitive questioning.
Last week, I discussed a section of Deborah L. Borman & Catherine Haras, Something Borrowed: Interdisciplinary Strategies for Legal Education for its debunking of legal education neuromyths, particularly learning style theory. This article also has an important discussion of the continuing use of the Socratic method.
The authors write, "This criticism notwithstanding, the Socratic method employs many of the cognitive principles discussed in this paper: The Socratic method uniquely leverages prior knowledge, engages students in real-time practice and feedback, and incorporates testing as a social learning experience that is personally meaningful for students. Proponents generally agree that the Socratic method provides many benefits to teaching and learning, including the ability of professors to teach large bodies of students in an active manner; the development of cognitive skills, as in teaching students to “think like a lawyer”; the ability to help students hone their verbal communication skills; and proof that asking critical questions results in good analytical writing. The Socratic method at its best is an example of one education technique that law education does particularly well: teaching students to dialogue by increasing their self-awareness and practice. The Socratic method is a deeply metacognitive skill."
They continue, "as the conversation begins to explore disagreement and eventually becomes a dialogue, the aim is for disequilibrium, creating opportunities for renewed understanding that comes from difference. Disequilibrium brings new understanding to the topic under discussion, and at the conclusion of the dialogue equilibrium may again be restored. In an inquiry it is our disagreements as well as our agreements that shape the dialogue. In a dialogue, we aim for a renewed understanding that comes from exploring ideas in disequilibrium. In this process, we reconstruct our previous knowledge."
The authors then make a very important point, which is not usually discussed in connection with the application of the Socratic method: "Critical thinking is driven not by answers but by questions." The authors add, "A focus on answers defies critical thinking. Answers often signal a full stop in thought. Only when an answer generates a further question does thought continue its life as such. That is why only students who ask questions are thinking and learning."
The authors then present a method of adding question formulation to the Socratic method. I will let you read the details of their method in their article.
We have often stressed on this blog that, if law professors are going to continue to use the Socratic method, they need to do so in a more rigorous manner. In their article, professors Borman and Haras have presented an innovative approach to doing this.
Thursday, November 7, 2019
Something Borrowed: Interdisciplinary Strategies for Legal Education by Deborah L. Borman & Catherine Haras
The Journal of Legal Education has just published an exciting new article by Deborah L. Borman & Catherine Haras: Something Borrowed: Interdisciplinary Strategies for Legal Education. There is a lot to this article, but, in this post, I want to concentrate on a section that we have often discussed on this blog: educational neuromyths.
They begin, "In this article, we posit that while some traditional law education strategies and techniques are historically successful in developing critical-thinking abilities, additional teaching and learning theory and practice methods borrowed from other education disciplines are necessary for students to transfer learning from school into practice.” (Note: my co-blogger, Jim Levy, would say that this has been my mantra since I joined this blog in 2011).
They continue, "The neuromyth most closely held by faculty is the one widely associated with the classroom, the theory of learning styles. . . . The premise of learning styles is this: Students learn best by their expressed preference for a learning mode, whether visual, auditory, or kinesthetic." "It is true both that people exhibit preferences for receiving information and do not process information more effectively when they are taught according to that preferred learning style. In other words, there is a difference between the way we prefer to receive information (often these are emotional/ noncognitive choices) and the way we actually learn. Learning styles are associated with subjective, not objective, aspects of learning. The preference for how people study is not a learning style but is based upon typing, also little supported from primary research.”
“In the thirty years since learning styles theory was propagated, the myth has mushroomed in scholarly publications, graduate curricula, posters, conference papers and workshops. Rigorous research has failed to demonstrate that learning styles affect learning. Individual learners show preferences for the mode in which they receive information (e.g., visual, auditory, kinesthetic) but learn no better when they receive information this way. Neuroscientists and cognitive psychologists alike widely pan the theory.” (I have left out the footnotes in the above. However, the points in the article are supported by rigorous research.)
“In 2018, the theory of learning styles continues to be disproved, just as the theories continue to be believed. The consensus among researchers and learning theorists is that we are often poor judges of our own learning, something to keep in mind when we resist disbelieving neuromyths.” “Unfortunately, Pandora’s box has been open for thirty years. Misconceptions about learning abound. Many of these have found their way into classrooms, if not teaching scholarship.” (For why, see here.)
The authors also discuss other neuromyths. “This incredible neural interconnectivity makes the ‘left brain-right brain’ theory of personality highly improbable and thus roundly debunked by neuroscientists.” Similarly, “The idea that people use only ten percent of their brains is also a neuromyth. One cognitive scientist writes that the idea is, in the first place, impractical: ‘Brain tissue is metabolically expensive both to grow and to run, and it strains credulity to think that evolution would have permitted squandering of resources on a scale necessary to build and maintain such a massively underutilized organ.’ The ubiquity of the ten percent myth probably comes from journalistic treatments of scientific papers by early researchers of brain function.”
Finally, "It is also tempting to believe that our students, most of them digital natives, learn differently from the people who grew up before the internet. This myth is also refuted by neuroscience. The learning difference may be a result of technological pressures, which have wrongly influenced public perceptions: that students of this generation somehow learn differently from their forebears and should be taught differently."
The authors conclude: “No wonder it is so hard to give up the fallacies. They are ubiquitous, having been insinuated into everyday jargon and practice, including law, reemerging as a kind of folklore. The fallacies have become, to some extent, part of every teacher’s prior knowledge. And like all lightly held, hasty ideas, these fallacies may keep us from making real change in our classrooms.”
Professors Borman and Heras have done a great service to legal education by debunking these neuromyths in such an important journal. Hopefully, in the future, legal educators will look to cognitive science when adopting new teaching methods, rather than unsupported fads. (There’s my mantra again, Jim.)
A last word from the article, "eminent education researcher John Hattie, writes: 'We are all visual learners, and we all are auditory learners, not just some of us.'"
Monday, November 4, 2019
Georgia to join majority of states that require lawyers to possess professional competence in technology use
Robert Ambrogi's always timely and informative LawSites blog is reporting that the Board of Governors of the Georgia Bar has voted to approve a change to the Rules of Professional Conduct that would mandate a duty of competence when it comes to a lawyer's use of technology. The new rule is now open for public comment until December 1, 2019 at which point it will be submitted upon motion to the Georgia Supreme Court for approval. If adopted, Georgia will join 37 states, according to Mr. Ambrogi, that have embraced similar professional duties of technology competence. The proposed change to the state bar of Georgia's Rules of Professional Conduct states as follows:
 To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject. (emphasis added)
Mr. Ambrogi has more details about a lawyer's professional duty of technology competence here.
Friday, November 1, 2019
A major public health crisis has developed in this country because many parents wrongly believe that measles-mumps-rubella vaccines cause autism. This falsehood has caused a serious outbreak of measles in several parts of this country. This year (as of March 12), there has been at least 228 reported cases of measles, a potentially lethal disease, in the United States. WHO recently declared the anti-vaccine movement a top 10 health threat because of unnecessary measles outbreaks in several countries.
The anti-vaccine movement began in 1998 with a now withdrawn paper by discredited doctor Andrew Wakefield, which claimed a connection between childhood vaccinations and autism. Since the paper’s publication, numerous studies have confirmed the safety of MMR vaccines, while none have supported the paper’s conclusion.
Yet many parents, advocates, and professionals continue to claim that the MMR vaccine is unsafe. Why? The answer is cognitive biases–thinking errors that influence human decision-making and judgment. Copious information on the safety of vaccines by doctors, scientists, and the mass media has not been enough to eliminate the pernicious influence of the anti-vaccine myth. The public must be educated on how cognitive biases work and how they affect thinking to eliminate the anti-vaccine myth.
Cognitive scientists have made enormous advances in understanding how the human brain works, including how humans make cognitive errors. Human brains evolved just as physical characteristics did. Consequently, many of humans’ thinking processes developed for survival in primitive times. This process produced ways of thinking that are different from reality--cognitive biases.
According to Daniel Kahneman, humans use two types of thinking. System 1 is intuitive thinking, which operates automatically and controls the details of our lives, such as walking, eating, and driving. System 2 controls tasks that require conscious decision-making, such as buying a house, running a business, deciding whether to launch missiles. Cognitive biases occur when thinking relies uncritically on System 1 (intuition). So, anti-vaccinators are relying on their intuitions, which are unreliable, rather than conscious judgement, which is much more likely to reach the right conclusion.
The most important bias for the anti-vaccine myth is illusory correlation–assuming a connection between two unrelated events. (The individual perceives a cause and effect relationship when there is none.) With the autism myth, someone sees that a child with autism was vaccinated so she assumes that the vaccination caused the autism without any proof of a connection. This is like ancient man believing that a human sacrifice brought much needed rain.
Under the confirmation bias, people focus only on information that supports their position. For example, a person mentions five studies supporting her position, but ignores the ten studies that don’t. People also ignore faults with the studies that support their view. Anti-vaccinators only look for evidence that supports their position. In addition, this “evidence” is not based on scientific research, but on rumors and falsehoods.
Similarly, the Semmelweis reflex causes individuals to reject evidence that contradicts a strongly-held idea. Most Renaissance thinkers rejected Galileo’s observations because they were inconsistent with their strongly-held notion that the universe revolved around the Earth. Anti-vacinators ignore the avalanche of scientific evidence that demonstrates the safety of MMR vaccines because it contradicts their views on vaccines and autism.
Emotional reasoning was also important in creating the anti-vaccine myth. Emotional reasoning is allowing emotions to affect one’s interpretation of reality. Parents’ understandable need to protect their children caused them to let their emotions affect how they viewed vaccines.
Finally, the bandwagon effect helped spread the anti-vaccine myth. The bandwagon effect is the propensity to believe something because many other people do so. Social media has created a bandwagoning effect for the anti-vaccine myth.
How can we overcome cognitive biases, like those that created the anti-vaccine myth? First, many researchers believe just having knowledge of cognitive biases reduces their frequency. Second, slowing down one’s thinking can eliminate cognitive errors. With important decisions, you should check your System 1 intuitions with your System 2. Consider all evidence, even that which contradicts your ideas. Separate the objective from the subjective and avoid lazy thinking. Critically consider all reasonable alternatives. Add reflection and self-monitoring to your thinking processes. Create problem-solving strategies. Be able to explain your reasoning process. Consider the consequences of making a mistake. Third, don’t let emotions alter your thinking. Evaluate whether your decision is based on emotion or System 2 thinking. Fourth, understand that just because two events are connected in time does not mean that one event caused the other. Finally, exercises exist to help people overcome their cognitive biases.
It is tragic when parents learn their child is autistic. However, it does no good to blame the wrong cause (vaccines). The anti-vaccine myth only creates more problems by helping the spread of dangerous diseases.
Wednesday, October 30, 2019
Every year, in late September and early October, it starts to get cooler, the leaves turn into bright colors--and law porn starts to appear in everyone's mailboxes. Law porn, for those who still haven't checked their mailboxes since May, is academic marketing waste. It is a brochure from law school A proclaiming to the world how they prepare students to be practice-ready. It is a postcard from law school B declaring that they have the best program in medieval Icelandic law in the nation. Why do law schools send out law porn? To improve their rank in U.S. News! (Haven't you been paying attention.) But, it has absolutely no effect on any law school's rank. Why not? Because all recipients of law porn throw it in the waste basket, usually by their secretaries' desks. In other words, Nobody Reads Law Porn. NOBODY.
Now, a group of law professors has recognized that law porn is environmental waste. It kills trees, it fills up landfills, and it is the number three cause of global warming. Maybe the last sentence is a little exaggerated, but law porn does contribute to environmental waste. So, several law professors have started a petition to cut down on law school porn. You can find the petition at Law Prof Pledge To Reduce Academic Marketing Waste.
I would go further than the petition. We should not just reduce law porn; we should eliminate it completely. As I said above, nobody reads it. Moreover, in this modern age, with all kinds of great gadgets, marketing materials can be sent by email. (Not that I'm happy to get spam in my email.)
Law professors are supposed to be overwhelmingly liberal. A major part of the liberal agenda is to reduce global warming. Yet the law schools we work for spew out environmental waste. (Spew is definitely the right verb here.)
Stopping law porn is not going to save the planet by itself. But, if everyone does their small bit, it adds up.
Stop Law Porn Now!!!
Monday, October 21, 2019
On Friday, my co-blogger, Jim Levy, wrote a post on the pernicious effect of educational neuromyths. (here) Among the neuromyths he mentioned were "listening to classical music increases reasoning ability," "students learn best when they are taught according to their preferred learning styles," and whether one is “left-brained” or “right-brained” explains differences in how we learn. Jim's conclusion: "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."
Since so many cognitive scientists and educational experts have attacked these pernicious neuromyths, why are so many teachers clinging to them. As Jim and the authors of the Report point out, using these disproven techniques can damage student learning.
The answer is cognitive biases. Cognitive biases (thinking or brain biases) are “systematic error[s] in thinking that affect the decisions and judgments that people make.” (here at p.1)
The bias that most affects the adherence to educational neuromyths is the Semmelweis reflex. The Semmelweis reflex is “The tendency to reject new evidence that contradicts a paradigm.” (definitions from Wikipedia: List of Cognitive Biases) For example, anti-vaccinators believe that vaccines cause autism and other serious conditions. This belief is based on a discredited report that declared that vaccines cause autism. Despite the fact that scientists have proven that there is no connection between vaccines and autism, there is still a large group of people who cling to the vaccine myth. Anti-vaccinators include famous and/or well-educated people like Robert F. Kennedy, Jr., Alex Jones, Jenny McCarthy, Jessica Biel, and Rob Schneider. In fact, celebrities are partially responsible for creating the myth. Obviously, this is not a benign myth, as the recent outbreak of measles demonstrates.
Another cognitive bias that helps perpetuate learning neuromyths is the confirmation bias. The confirmation bias is "The tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions." Under this bias, people who hold a false or questionable notion only look for evidence that confirms their notion.
Finally, there is the bandwagon effect--"The tendency to do (or believe) things because many other people do (or believe) the same." As I noted above, the bandwagon effect had a great deal to do with the perpetuation of the vaccination myth.
These biases also apply to educational neuromyths. For example, the learning styles neuromyth ("students learn best when they are taught according to their preferred learning styles,") was very popular during the 1990s and early 2000s. Around 2009, scientists and educators began to look at learning style theory more closely, and their studies have disproven the theory. For example, "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) Moreover, a significant "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." Similarly, "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."
The Semmelweis reflex has caused educators to cling to the learning styles theory myth because our minds tend to reject new evidence that contradicts a paradigm, even though the evidence concerning learning styles theory is overwhelming. The confirmation bias has a similar effect on learning theory adherents. Finally, as stated above, the theory was popular for a time, so the bandwagon effect has aided its continuation.
The main reason that I wrote the above is the harmful effect that learning neuromyths can have on students, especially learning styles theory. The most important lesson from this is that is that we must base our teaching on educational research predicated on how the brain learns (cognitive science), not ancient lore.
Friday, October 18, 2019
There's a great article on curiosity today in the NY Times by Daniel Willingham. I always thought that curiosity was one of the keys to learning; he agrees.
"Curiosity feels like it’s outside your control, and trying to direct it sounds as ill conceived as forcing yourself to find a joke funny. But if you understand what prompts curiosity, you may be able to channel it a little better."
"Across evolutionary time, curious animals were more likely to survive because they learned about their environments; a forager that occasionally skipped a reliable feeding ground to explore might find an even better place to eat."
"Humans, too, will forgo a known payoff to investigate the unknown."
"Therefore, evolution has left us with a brain that can reward itself; satisfying curiosity feelspleasurable, so you explore the environment even when you don’t expect any concrete payoff."
"What’s more, curiosity doesn’t just ensure new opportunities for learning, it enhances learning itself. In a recent experiment, subjects read trivia questions and rated how curious each made them feel. Later, they saw the questions again, each followed by a photograph of a face, and judged whether that person looked like he or she would know the answer. In a surprise final memory test for the faces, subjects better remembered those appearing after trivia questions that made them curious. Curiosity causes a brain state that amplifies learning."
"This function of curiosity — to heighten memory — is the key to understanding why we’re curious about some things and not others. We feel most curious when exploration will yield the most learning."
"We’re maximally curious when we sense that the environment offers new information in the right proportion to complement what we already know."
"Einstein famously advised a young student to “never lose a holy curiosity.” Given our evolutionary history, there’s little danger any of us will. The challenge is changing its focus from the momentary to something more enduring."
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 (I know my co-blogger Scott is going to have something to say about that!).
Here are some of the key findings from the Online Learning Consortium Report:
- The survey respondents indicated they found scientific knowledge about the brain and its influence on learning to be interesting and valuable to their teaching practice, course development, and professional development.
- Correct responses to the 23 statements, which included neuromyths and general information about the brain, ranged from 11% to 94% for instructors, instructional designers, and administrators.
- Neuromyths to which respondents were most susceptible included:
• Listening to classical music increases reasoning ability.
• A primary indicator of dyslexia is seeing letters backwards.
• Individuals learn better when they receive information in their preferred learning styles (e.g., auditory, visual, kinesthetic).
• Some of us are “left-brained” and some are “right-brained” due to hemispheric dominance, and this helps explain differences in how we learn.
• We only use 10% of our brain.
- Correct responses to the 28 statements representing evidence-based practices from the learning sciences and MBE science ranged from 26% to 99% for instructors, instructional designers, and administrators.
- Evidence-based practices to which respondents had the greatest awareness included:
• Emotions can affect human cognitive processes, including attention, learning and memory, reasoning, and problem-solving.
• Explaining the purpose of a learning activity helps engage students in that activity.
• Maintaining a positive atmosphere in the classroom helps promote learning.
• Stress can impair the ability of the brain to encode and recall memories.
• Meaningful feedback accelerates learning.
- Instructional designers had greater awareness of neuromyths, knowledge about the brain, and evidence-based practices than instructors and administrators.
- There were no significant differences in (a) awareness of neuromyths and knowledge about the brain, or (b) evidence-based practices and demographic categories including: educational modality (i.e., teaching or developing courses for on-campus, blended/hybrid, online), institution level (two-year, four-year), institution
type (public, private, for-profit), instructor role (full-time, part-time), number of years teaching, number of years as an instructional designer, gender, age, or time since highest degree completed.
- Reading journals related to neuroscience, psychology, and MBE science increased awareness of (a) neuromyths and general information about the brain, and (b) evidence-based practices.
- Professional development is a predictor of awareness of (a) neuromyths and general knowledge about the brain, and (b) evidence-based practices among higher education instructors, instructional designers, and administrators.
Thursday, October 17, 2019
As regular readers of this blog know, I have been researching cognitive biases and lawyers for the last couple of years. Cognitive biases can cause attorneys to make egregious errors. The same is true for doctors, as this article demonstrates:
New York Times, Rx for Doctors: Stop With the Urine Tests.
"The tests often are positive in people without symptoms, particularly older patients. The result: overtreatment with antibiotics."
"Yet such test results, signifying what’s known in doctor-talk as asymptomatic bacteriuria, frequently lead to unnecessary treatment with antibiotics."
“We now recognize that there’s a strong cognitive bias,” said Dr. Christine Soong, head of hospital medicine at Sinai Health System in Toronto and co-author of a recent editorial on the subject in JAMA Internal Medicine. “Once a clinician sees bacteria in the urine, the reflex is, you can’t ignore it. You want to treat it.”
"Now, the campaign has changed from trying to prevent needless treatment to trying to curtail the testing that prompts it. If concerned doctors can’t dissuade their colleagues from treating these non-infections, they’re trying to discourage them from ordering urine tests in the first place."
As you can see, cognitive biases can cause doctors to over-prescribe antibiotics, which can harm patients.
It is similar for lawyers. Cognitive biases can cause lawyers to misdiagnose legal problems. Consequently, it is important that law professors introduce their students to cognitive biases before they graduate.
Wednesday, October 16, 2019
For those interested in the debate over whether and how AI will impact legal practice (including replacing the need for attorneys when it comes to the more routine tasks associated with practicing law), there's this article from today's New York Times reporting on a robotic hand that was trained to solve a Rubik's Cube. Given that the AI programmers gave the robot the equivalent of 10,000 years to practice the task, query whether this is really a reflection of artificial learning or instead an example of the infinite monkey theorem. On the other hand (no pun intended), the article points out the researchers did not program into the robot every possible hand or finger movement needed to manipulate the Rubik's Cube (which could have taken centuries) so in that sense, the robot did indeed engage in some bona fide learning to be able to successfully solve the puzzle.
A five-fingered feat could show important progress in A.I. research. It is also a stunt.
Last week, on the third floor of a small building in San Francisco’s Mission District, a woman scrambled the tiles of a Rubik’s Cube and placed it in the palm of a robotic hand.
The hand began to move, gingerly spinning the tiles with its thumb and four long fingers. Each movement was small, slow and unsteady. But soon, the colors started to align. Four minutes later, with one more twist, it unscrambled the last few tiles, and a cheer went up from a long line of researchers watching nearby.
The researchers worked for a prominent artificial intelligence lab, OpenAI, and they had spent several months training their robotic hand for this task.
Though it could be dismissed as an attention-grabbing stunt, the feat was another step forward for robotics research. Many researchers believe it was an indication that they could train machines to perform far more complex tasks. That could lead to robots that can reliably sort through packages in a warehouse or to cars that can make decisions on their own.
Though it could be dismissed as an attention-grabbing stunt, the feat was another step forward for robotics research. Many researchers believe it was an indication that they could train machines to perform far more complex tasks. That could lead to robots that can reliably sort through packages in a warehouse or to cars that can make decisions on their own.
. . . .
“This is an interesting and positive step forward, but it is really important not to exaggerate it,” said Ken Goldberg, a professor at the University of California, Berkeley, who explores similar techniques.
A robot that can solve a Rubik’s Cube is not new. Researchers previously designed machines specifically for the task — devices that look nothing like a hand — and they can solve the puzzle in less than a second. But building devices that work like a human hand is a painstaking process in which engineers spend months laying down rules that define each tiny movement.
The OpenAI project was an achievement of sorts because its researchers did not program each movement into their robotic hand. That might take decades, if not centuries, considering the complexity of a mechanical device with a thumb and four fingers. The lab’s researchers built a computer system that learned to solve the Rubik’s Cube largely on its own.
. . . .
Continue reading here.
Monday, October 14, 2019
This article argues "no" - at least not when it comes to uniquely human skills like empathy, imagination, and creativity. (But see this new book by Professor Arthur Miller - no, not that one - who argues that when it comes to creativity, AI will eventually surpass the human ability to create in truly novel ways). The article, by Professors Julie A. Oseid (St. Thomas - Minn.), Amy Vorenberg (UNH), and Melissa Love Koenig (Marquette) is called Ok, Google, Will Artificial Intelligence Replace Human Lawyering? and is available at 102 Marq. L. Rev. 1269 (2019) and here on SSRN. From the abstract:
Will Artificial Intelligence (AI) replace human lawyering? The answer is no. Despite worries that AI is getting so sophisticated that it could take over the profession, there is little cause for concern. Indeed, the surge of AI in the legal field has crystalized the real essence of effective lawyering. The lawyer’s craft goes beyond what AI can do because we listen with empathy to clients’ stories, strategize to find that story that might not be obvious, thoughtfully use our imagination and judgment to decide which story will appeal to an audience, and creatively tell those winning stories.
This article reviews the current state of AI in legal practice and contrasts that with the essence of exclusively human lawyering skills—empathy, imagination, and creativity. As examples, we use three Supreme Court cases to illustrate these skills.
Saturday, October 12, 2019
Here is an interesting article that goes below the surface to examine gender equity in law school admissions.
Deborah Jones Merritt & Kyle P. McEntee, Gender Equity in Law School Enrollment: An Elusive Goal.
Women finally make up more than half of law students nationwide, but that milestone masks significant gender inequities in law school enrollment. Women constitute an even larger percentage of the potential applicant pool: for almost two decades, they have earned more than 57% of all college degrees. As we show in this article, women are less likely than men to apply to law school — or to be admitted if they do apply. Equally troubling, women attend less prestigious law schools than men. The law schools that open the most employment doors for their graduates enroll significantly fewer women than schools with worse job outcomes and weaker access to the legal profession.
We explore here the factors that may contribute to this ongoing gender gap in law school attendance. We also propose several strategies for closing the gap. Enrollment equity alone will not put women on an equal footing with men; a sizable literature probes gender biases that pervade the law school environment. Recognizing and addressing the enrollment gap in legal education, however, is an essential first step toward improving the representation of women throughout the legal profession.
Friday, October 11, 2019
Based on law school trial competition data compiled by Professor Joe Lester at Faulkner University School of Law and published by Fordham University School of Law. The ranking methodology is as follows:
"Point allocation for all single-tournament national competitions is as follows: 3 points for winning the competition, 2 points for making it to the final round, and 1 point for making it to the semi-final round. For exclusively regional tournaments (AAJ Regionals, TYLA Regionals, Chester Bedall), each winning team is allocated 3 points. No points are allocated for regional finalists or semi-finalists.
For AAJ Nationals and TYLA Nationals, where all participating teams won regional qualifiers, the points are allocated as follows: 4 points for winning the competition, 3 points for making it to the final round, and 2 points for making it to the semi-final round. Additional weight is not given to other “selective” national competitions because each competition employs their own unique rubric for school selection and do not share the unquestionable objectivity of a regional tournament qualifier."
And here are the rankings themselves:
Tuesday, October 8, 2019
This sounds truly innovative - a program that will focus on ways law schools can adopt a holistic approach to the training and development of lawyers not only during law school but throughout their careers including a "Five-Year-Out Academy." Here's an excerpt from U. Penn's press release describing the initiative in more detail:
To advance its mission of educating the next generation of lawyers and catalyzing change throughout the profession, Penn Law is launching the Future of the Profession Initiative. The Initiative will “Teach, Lead, and Transform” by examining new ways law schools can adopt a holistic vision for the formation of lawyers – both during law school and throughout their careers to create true Lifelong Learning for Penn Law lawyers. The Initiative will lead profession-wide conversations about a changing legal landscape and create a destination for future-oriented and creative professionals from an array of disciplines to address disconnects among clients, lawyers, and legal systems.
The Future of the Profession Initiative, working with its Board of Advisors, has developed several upcoming events and projects, including a “Five-Year-Out Academy” to support the career acceleration of Penn Law graduates entering the next stage of their careers, a Dean’s Innovation Prize competition to support exceptional ideas for innovating in legal service delivery, a “Future of the Profession” symposium that will bring together thought leaders from the legal sector and other industries, an entrepreneurs-in-residence program, and the launch of a podcast featuring conversations about change.
“As lawyers, we find ourselves at an important inflection point in the history of our profession,” noted Penn Law Dean and Bernard G. Segal Professor of Law Ted Ruger. “Change in the legal field is accelerating as technology evolves, new entrants join the industry, the practice of law becomes more globalized, regulatory frameworks governing lawyers shift, and attorneys approach their careers differently. As a result, law school applicants, students, and graduates are thinking in new ways about how they imagine their careers, underscoring the need for a solution that promotes innovation, thought leadership, and enhanced interdisciplinary education and engagement.”
The development of methods that respond to these changes and enhance the way Penn Law prepares its lawyers will build upon new Penn Law initiatives that include the integration of lawyer well-being into the curriculum and robust professional development programming for students and alumni.
The Initiative will also investigate how the same dynamic forces that will shape the way Penn Law lawyers practice in the future create opportunities for innovative thinkers from across disciplines to design solutions that make legal systems accessible to a broad and diverse client base, an estimated 90 percent of whom currently lack meaningful access. Penn Law’s Initiative will approach this access to justice crisis by extending its innovative leadership into the profession to work across disciplines and design new solutions, consistent with Penn’s guiding principle of “Advancing Knowledge for Good.”
“Penn Law—because of its future-oriented approach to legal education and its position within a mature innovation ecosystem in the broader Penn community—is uniquely situated to host forward-thinking and creative minds to develop new models and tools that will reduce disconnects to the legal system, and by extension, will grow access across the income spectrum to better serve all clients,” said Jennifer Leonard L’04, Chief Innovation Officer and Executive Director of Penn Law’s Future of the Profession Initiative. “This initiative will be the hub that brings together students from across disciplines, practicing attorneys, and experienced professionals from fields like engineering, business, design, education, and the sciences to think in new and translational ways, all with an aim to serve the public good.”
. . . .
Board member Sozi Tulante expressed enthusiasm about the Initiative’s launch, noting “Now more than ever the profession is undergoing exciting and challenging change on a number of fronts. These shifts demand active collaboration among law schools, employers, lawyers, clients and other stakeholders in the legal system to think in new ways about how lawyers evolve throughout their careers. We also need to consider how we can learn and adopt from our peers in other professions better ways to serve the many clients whose needs now go unmet. This exciting Initiative embodies that partnership and will be the powerful connector that advances all of these interests.”
Hat tip to ATL.
Sunday, October 6, 2019
U. Cincinnati College of Law and Fortune 500 bank collaborate to create first of its kind in-house counsel fellowship
Perhaps this collaboration will serve as a model for other law schools and legal employers who ordinarily don't hire directly out of law school. From UC News:
The first of its kind fellowship gives newly minted graduates a chance to go in-house straight out of law school
Two University of Cincinnati College of Law class of 2019 graduates have joined Fifth Third Bank’s legal department as part of a new fellowship program that will provide them in-house experience directly out of law school.
Created in collaboration with Susan B. Zaunbrecher, executive vice president, chief legal officer & corporate secretary at Fifth-Third (and a UC Law alumna), this fellowship program will be a model for similar ventures at other Fortune 500 companies, helping retain the best talent in the region and opening doors for new attorneys.
“We saw an opportunity that would support rising legal stars, benefiting fellow alumni as well as Fifth Third,” said Zaunbrecher. “As a Cincinnati company, we recognize the importance of attracting and retaining diverse talent in our region. We are thrilled to provide hands-on, meaningful work experiences for our UC Law fellows that will help them embark on their legal careers.”
The fellowships are a two-year, set-term apprenticeship program for new graduates, helping them hone their legal skills as they enter the profession. In addition to learning the field, they will be mentored by seasoned attorneys along the way. New fellows will be chosen every two years as the program grows.
Zahki Davis ’19 and Marissa Lee ‘19 joined Fifth Third as inaugural fellows this year. Davis is working in mergers and acquisitions, and Lee is working in regulatory affairs.
. . . .
“These innovative fellowships will have a lasting impact on our students as they start their career journeys. Innovation has always been a part of our DNA at Cincinnati Law. This is yet another example of that,” said Verna Williams, dean of the College of Law. “I’m thankful to Susan Zaunbrecher and Fifth Third for the forward-thinking vision in creating these opportunities for our students.”
Mina Jones Jefferson, associate dean and director of the law school’s Center for Professional Development, and the individual who helped create the program, agreed. “This collaboration will allow us to operationalize the Bearcat Promise – helping students design a customized path to their ideal future,” said Jefferson. “Traditionally opportunities like this aren’t available to new law graduates, and now they have immediate access to a Fortune 500 legal department. This experience will jumpstart their careers.”
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Continue reading here.
Friday, October 4, 2019
Finding the Goldilocks Zone: Negotiating Your First Employment Contract in Legal Academia by Darby Dickerson
Here is some great advice on how to negotiate your first legal academic contract:
This WIP is for individuals, particularly women, who are about to negotiate their first employment offers in legal academia (whether tenure-line or non-tenure-line). The goal is to hit the "Goldilocks Zone" where you negotiate to strike the best balance to meet your needs and your law school's needs.
The paper begins with information about why women are less likely than men to negotiate employment offers and offers strategies to consider as they negotiate with their potential dean.
The paper then explains more than two dozen potential terms of an entry-level offer, with advice about what may or may not be typical or reasonable under the circumstances. Examples include starting date and bridge summer compensation, base salary, course packages, teaching load, credit toward tenure, and spousal hires.
The remainder of the paper explains how to hit the "Goldilocks Zone" in your specific negotiation. Topics include understanding your negotiating partner (i.e., understanding the dean's role, perspective, and restrictions), conducting research (e.g., how do you find out more about salary ranges), identifying your needs and establishing your priorities, and developing your BATNA.
Tuesday, October 1, 2019
We reported last week that the LSAT has now gone fully digital. No more will students be required to use a No. 2 pencil to fill out those pesky little circles but instead everyone will complete the law school admissions test using a tablet. And now the National Conference of Bar Examiners has announced that beginning with the March 2020 administration of the MPRE, that too will be fully digital with test-takers completing their answers on computers supplied by the designated testing sites. During the upcoming November administration of the MPRE, some takesr will be using computers while others will complete it via the analog method. Here's the announcement sent by the NCBE today to law school deans:
We would like to share a few important reminders about changes for this November’s MPRE administration and for the 2020 MPRE as we continue to transition the MPRE from paper-based to computer-based testing.
· November 2019 For the November 2019 administration of the MPRE, most candidates will be assigned to take the exam on paper at a testing center administered by LSAC. Some candidates will be assigned to take the exam on computers provided by Pearson VUE at its testing centers.
· 2020 Changes Beginning with the March 2020 administration, all candidates will take the computer-based exam at Pearson VUE testing centers. The 2020 MPRE will be administered on two weekdays per administration rather than on Saturdays.
· New Accommodations Process A new MPRE test accommodations process has been implemented for 2020. Information about the new process will be available in early October at http://www.ncbex.org/exams/mpre/ada-accommodations/.
2020 Registration Updated information regarding the 2020 registration process and test day policies will be posted in late November at www.ncbex.org/exams/mpre/
Save the date! Emory's biennial conference on transactional law and skills will be held on June 5-6, 2020
Here are the details:
Emory’s Center for Transactional Law and Practice is excited to announce the date for its seventh biennial conference on the teaching of transactional law and skills. The conference will be held at Emory Law, on Friday, June 5, 2020, and Saturday, June 6, 2020.
More information will be forthcoming on the Call for Proposals, the Call for Nominations for the Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills, open registration, and travel accommodations. We are looking forward to seeing all of you on June 5 and 6, 2020!
Monday, September 30, 2019
An opinion column by Jane Rosenzweig, the Director of the Writing Center at Harvard, published in Friday's New York Times that argues the whistleblower complaint is an exemplar of effective writing because the author gets to the point, makes good use of subheadings, uses topic sentences well, and uses the active voice. Sage advice every legal writer should follow. Here's an excerpt from the full column:
His complaint offers lessons on how to make a point.
I can’t tell you what’s going to happen to his blockbuster complaint about the president’s behavior, but I can tell you that the whistle-blower’s college writing instructor would be very proud of him.
As a writing instructor myself for 20 years, I look at the complaint and see a model of clear writing that offers important lessons for aspiring writers. Here are a few:
The whistle-blower gets right to the point.
We know right away what his purpose is and why we should care. He wastes no time on background or pleasantries before stating that he is writing to report “an ‘urgent’ concern.” And then he immediately states it:
“In the course of my official duties, I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.”
The whistle-blower uses subheadings to make sure we can connect the dots.
Most subheadings don’t do much to enhance a document. The whistle-blower’s subheadings do what the best subheadings do: They structure the complaint and provide a clear outline of what the document contains:
I. The 25 July Presidential phone call
II. Efforts to restrict access to records related to the call
III. Ongoing concerns
IV. Circumstances leading up to the 25 July Presidential phone call
The bonus of good subheadings is that they serve as a guide for writing the rest of the document. Even if you’re writing something less formal, you can use subheadings to organize your document and then remove them before you share it.
The whistle-blower gets an A for his topic sentences.
. . . .
Continue reading here.
The Bar Examiner has an article on how five law schools significantly raised their bar pass scores.
The five law schools are Florida International University, University of Massachusetts, University of New Hampshire, University of North Carolina, and University of Utah.
Any law school can raise their bar pass scores by using the same methods as these five law schools. The key is that they drew on the latest in adult educational research and emphasized active learning. Not only do these techniques help schools raise bar pass scores, but they help law schools turn out significantly better students.