Monday, June 7, 2021

Intellectual Dishonesty by the ABA Journal

Last week, the ABA Journal published an article on its daily site that was intellectually dishonest. 

7 tips to strengthen the mind through identifying and overcoming implicit bias by James Gray Robinson.

Intellectual dishonesty: "[T]he advocacy of a position which the advocate knows or believes to be false, or is the advocacy of a position which the advocate does not know to be true, and has not performed rigorous due diligence to insure the truthfulness of the position."  (here)  "IntellectualDishonesty doesn't necessarily mean lies or otherwise morally wrong deeds. However, in pursuing an intellectual endeavour one has to commit oneself to higher standards."  (Id.)  "Intellectual dishonesty is a failure to apply standards of rational evaluation that one is aware of, usually in a self-serving fashion. If one judges others more critically than oneself, that is intellectually dishonest. If one deflects criticism of a friend or ally simply because they are a friend or ally, that is intellectually dishonest. etc."  (here)  Professor Brian Leiter has recently declared, "Before imposing a requirement like this [bias and racism training for law students], the burden should be on the ABA to establish, and not simply assume, that such training is possible and efficacious."  (here)

The article states, "Implicit bias, which is a relatively recent concept in the psychiatric field, attempts to describe the unconscious prejudices and stereotypes we form without conscious awareness. It is human nature to have biases, whether we want to admit to them or not."  It continues, "The term “unconscious bias” was first used in 1995 by psychologists Mahzarin Banaji and Anthony Greenwald, when they argued that behavior is affected by unconscious associations and judgments. Biases are formed through our education and experiences, as well as our cultural history. Ironically, intelligence has nothing to do with it. In fact, the more intelligent one is, the higher the likelihood that they have implicit bias.

There is a test available online known as the Implicit Association Test, developed by Greenwald and Banaji, that has torn the cover off implicit bias. It demonstrates that our concepts of “good/bad,” “right/wrong” and “like/dislike” are the result of implicit bias, and no one is free from bias."

What is intellectually dishonest is that the article fails to note that their is a ton of evidence that disputes implicit bias theory and the implicit bias test in particular.  (Adam Lamparello, The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education; American Psychological Association, IAT: Fad or fabulous?; The seminal article that questions implicit bias theory:  here; here; here; here; and many, many more.

Professor Leiter has asserted, "“It [the IAT] doesn't measure implicit bias, and what it does measure doesn't correlate with discriminatory behavior. It's now well past the point where philosophers should be embarrassed to still be trafficking in this pseudo-science.”  (here)

APA article: "The IAT is not yet ready for prime time," says the University of Virginia's Greg Mitchell, PhD, JD, a Berkeley-trained social psychologist turned law professor. "I think this research is important research and the people doing it are very good scientists with noble intentions. But noble intentions don't make good public policy."

APA article: "Another reason IAT critics think that the Web site shouldn't provide feedback is because the measure is quite sensitive to the social context in which it's taken: In fact, people's scores often change from one test to another."

"What all these numbers mean is that there doesn’t appear to be any published evidence that the race IAT has test-retest reliability that is close to acceptable for real-world evaluation.”
“The second, more important point to emerge from this years-long meta-analytic melee is that both critics and proponents of the IAT now agree that the statistical evidence is simply too lacking for the test to be used to predict individual behavior.”  (here)

Adam Lamparello: "Specifically, recent empirical studies by social psychologists strongly suggest that implicit bias is not predictive of biased behavior. In fact, the science regarding implicit bias’s connection to biased behavior is so flawed that social psychologists doubt its validity and question the utility of policies that attempt to link implicit bias to biased behavior. You wouldn’t know this from reading the many law review articles concerning implicit bias, or from the orientation sessions where law students are taught to believe that implicit bias is the sine qua non of biased behavior."

In sum, my point is that those who have studied implicit bias and the implicit bias test strongly disagree about the test's validity.  In no way can anyone argue that the validity of the implicit bias test has been established.

Mr. Robinson is guilty of intellectual dishonesty because he hid the evidence and scholarship that is contradictory to his position.  His article implies that the implicit bias test is firmly established.  It isn't.

The editors of the ABA Journal are equally as guilty.  At best, they are sloppy.  At worst, they also are being intellectually dishonest.  I find it hard to believe that the editors of The ABA Journal were not aware of the strong criticisms of the implicit bias test.

The ABA Journal needs to publish an article that gives the criticisms of implicit bias theory.  Otherwise, they are just hacks, like on Fox News.

(Scott Fruehwald)

 


June 7, 2021 | Permalink | Comments (0)

Tuesday, May 25, 2021

Notice and Comment on ABA Proposed Racism Training Requirement.

The ABA Council has asked for comments on its proposed racism requirement, which I earlier discussed here.  You can find the Notice here.  You can send comments to Fernando.Mariduena@americanbar.org.

Here is the proposal:

Standard 303:

c) A law school shall provide training and education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation. For students engaged in law clinics or field placements, the second occasion for training and education will take place before or concurrent with their enrollment in clinical or field placement courses.

Interpretation 303-6: With respect to 303(a)(1), the importance of cross-cultural competency to professionally responsible representation and the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law should be among the values and responsibilities of the legal profession to which students are introduced.

Interpretation 303-7: Standard 303(c) may be satisfied by: (1) Orientation sessions for incoming students on bias, cross-cultural competency, and racism; (2) Guest lectures or trainings by experts in the areas of bias, cross-cultural competency, and racism; (3) Courses on racism and bias in the law; or (4) Other educational experiences that train students in cross-cultural competency. While law schools need not add a required upper-division course to satisfy this requirement, law schools must demonstrate that all law students are required to participate in a substantial activity designed to reinforce the skill of cultural competency and their obligation as future lawyers to work to eliminate racism in the legal profession.

(Scott Fruehwald)

May 25, 2021 | Permalink | Comments (0)

Monday, May 24, 2021

Revised Proposal for Professional Identity Training

The ABA Council of the Section of Legal Education and Admissions to the Bar met on May 14 to consider a proposal to add professional identity training to the law school curriculum.  The Council decided to resubmit the proposal for notice and comment because of suggested changes to the language of the proposal by commenters.  (here)

Here is the revised proposal:

(b) A law school shall provide substantial opportunities to students for:

(1) law clinics or field placement(s);

(2) student participation in pro bono legal services, including law-related public service activities.; and

(3) the development of a professional identity.

Interpretation 303-5

Professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice. Because developing a professional identity requires reflection and growth over time, students should have frequent opportunities during each year of law school and in a variety of courses and co-curricular and professional development activities.

I expect that the revised proposal will be sent out for notice and comment later this week or next week.  I will post again when it is.

(Scott Fruehwald)

Update: The Council has put out a call for Notice and Comment on the revised language.  You can find it here.

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May 24, 2021 | Permalink | Comments (0)

Monday, May 17, 2021

ABA Pushes Forward With Racism Training Requirement for Law Schools

News from last Friday's Council meeting:

ABA Pushes Forward With Racism Training Requirement for Law Schools by Karen Sloan.

"A requirement that law schools train students in 'bias, racism and cross-cultural competency' is among a slate of changes to the law school accreditation standards that the American Bar Association is weighing.'"

"Should law schools be required to train students in bias, racism, and cross-cultural competency? The American Bar Association is asking legal educators and the public to weigh in."

"The ABA’s Council of the Section of Legal Education and Admission to the Bar on May 14 advanced a slate of proposed changes to its law school accreditation standards, including a mandate that law students receive training on racism and bias at least twice during their legal studies."

"Under the revised standard, law schools would have to provide training on bias, racism and cross-cultural competency at the beginning of their law school careers, and at least one other time after that. That requirement could be fulfilled during orientation, guest lectures, courses on racism and bias in the law, and other 'educational experiences,' according to the proposed standard. Students would have to complete both trainings before starting clinics or field placements."

"But it remains to be seen how a bias and racism training requirement for law students will be received beyond the legal educators who have been lobbying for the change. The Council voted to put the proposed new requirements out for public notice and comment without any discussion or debate during the public portion of its meeting. It’s on track to take up the matter again when it next meets in August, after the public has had the opportunity to submit feedback. If the Council adopts the changes in August, it would then go before the ABA’s House of Delegates in February. If the House votes in favor, then new standards would be in place for the fall of 2022."

(Scott Fruehwald)

Here is the proposed language:

Standard 303:

c) A law school shall provide training and education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation. For students engaged in law clinics or field placements, the second occasion for training and education will take place before or concurrent with their enrollment in clinical or field placement courses.

Interpretation 303-6: With respect to 303(a)(1), the importance of cross-cultural competency to professionally responsible representation and the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law should be among the values and responsibilities of the legal profession to which students are introduced.

Interpretation 303-7: Standard 303(c) may be satisfied by: (1) Orientation sessions for incoming students on bias, cross-cultural competency, and racism; (2) Guest lectures or trainings by experts in the areas of bias, cross-cultural competency, and racism; (3) Courses on racism and bias in the law; or (4) Other educational experiences that train students in cross-cultural competency. While law schools need not add a required upper-division course to satisfy this requirement, law schools must demonstrate that all law students are required to participate in a substantial activity designed to reinforce the skill of cultural competency and their obligation as future lawyers to work to eliminate racism in the legal profession.

 

 

 

 

May 17, 2021 | Permalink | Comments (0)

Tuesday, May 4, 2021

Cognitive Biases, Implicit Biases, and Student Feedback

I have stressed the importance of cognitive (or unconscious) bias training as a part of law students' professional identity development.  (See Understanding and Overcoming Cognitive Biases For Lawyers And Law Students: Becoming a Better Lawyer Through Cognitive Science (2018))  I think it is important for law students to understand that all humans--lawyers, clients, judges, and themselves--are susceptible to cognitive errors caused by how their brains evolved.

Cognitive biases (thinking or brain biases) are “a systematic error in thinking that affects the decisions and judgments that people make.”  (Kendra Cherry, What is a Cognitive Bias? Definitions and Examples, VeryWell (May 26, 2016). https://
www.verywell.com/what-is-a-cognitive-bias-2794963)  Overcoming cognitive biases can produce amazing results. For example, “Atul Gawande, an accomplished medical professional, recounts the results of an initiative at a major U.S. hospital, in which a test run showed that doctors skipped at least one of only 5 steps in 1/3 of certain surgery cases, after which nurses were given the authority and responsibility to catch doctors missing any steps in a simple checklist aimed at reducing central line infections. In the subsequent 15-month period, infection rates went from 11% to 0%, 8 deaths were avoided and some $2 million in avoidable costs were saved.”  (Wikipedia: Cognitive Bias Mitigation, https://en.wikipedia.org/wiki/Cognitive_bias_mitigation)

Anne Gordon has written an amazing article (with one major flaw) on biases and effective and fair student feedback. 

Better Than Our Biases: Using Psychological Research to Inform our Approach to Inclusive, Effective Feedback.  First, the abstract:

"As teaching faculty, we are obligated to create an inclusive learning environment for all students. When we fail to be thoughtful about our own bias, our teaching suffers – and students from under-represented backgrounds are left behind. This paper draws on legal, pedagogical, and psychological research to create a practical guide for clinical teaching faculty in understanding, examining, and mitigating our own biases, so that we may better teach and support our students. First, I discuss two kinds of bias that interfere with our decision-making and behavior: cognitive biases (such as confirmation bias, primacy and recency effects, and the halo effect) and implicit biases (stereotype and attitude-based), that arise from living in our culture. Second, I explain how our biases negatively affect our students:  both through the stereotype threat that students experience when interacting with biased teachers, and by our own failure to evaluate and give feedback appropriately, which in turn interferes with our students’ learning and future opportunities. The final section of this paper details practical steps for reducing our bias, including engaging in long-term debiasing, reducing the conditions that make us prone to bias (such as times of cognitive fatigue), and adopting processes that will keep us from falling back on our biases, (such as the use of rubrics). Acknowledging and mitigating our biases is possible, but we must make a concerted effort to do so in order to live up to our obligations to our students and our profession."

This article is thoroughly researched (with one exception), and the author applies critical thinking to her arguments (with the same exception).  Not only does she identify the problems, she offers several practical solutions to overcome cognitive biases in feedback and grading.

The one problem is her use of  "implicit bias" in her argument.  She defines cognitive biases as "errors of intuitive thought - shortcuts to decision-making that actually lead us to the wrong conclusion."  The cognitive biases she lists in her article include the Anchoring Bias, the Regency Effect, the Conformation Bias, the Halo Effect, the Bandwagon Effect, the Attractiveness Effect, the In-Group Bias, the Bias Blindspot, and the Objectivity Illusion.  These biases are well-supported by scientific studies, and Professor Gordon presents a detailed discussion of the biases.

She defines "implicit bias" as "a combination of attitude and stereotype biases, and "cognitive bias" as all other cognitive biases.  It is key that she recognizes this distinction because cognitive (unconscious, brain biases) and implicit bias because these two categories have distinct research lines.  In other words, researchers on cognitive biases do not generally study implicit biases.

As I said above, cognitive biases are strongly supported by rigorous, scientific studies.  The same is not true of implicit biases.  Scientists strongly disagree about the basis of implied bias theory.  

Adam Lamparello has written an excellent article on the problems with implicit biases: The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education.  Here is the abstract:

"Nowhere is the necessity of using empirical research methods and statistics in formulating legal arguments more obvious than in recent legal scholarship concerning implicit bias.

By way of background, the concept of implicit, or unconscious, bias has recently enjoyed its ‘fifteen minutes of fame,’ garnering substantial support from many scholars, including some law professors, who contend that implicit biases cause discriminatory behavior, including behaviors that disparately impact traditionally marginalized groups. Indeed, scholars have advocated for programs and policies that instruct incoming law students and faculty regarding the existence of its implicit bias and its alleged role in perpetuating overt and subtle racism.

But there is a problem – a very big problem – that plagues legal scholarship in this area and that casts doubt on these policies.

Specifically, recent empirical studies by social psychologists strongly suggest that implicit bias is not predictive of biased behavior. In fact, the science regarding implicit bias’s connection to biased behavior is so flawed that social psychologists doubt its validity and question the utility of policies that attempt to link implicit bias to biased behavior. You wouldn’t know this from reading the many law review articles concerning implicit bias, or from the orientation sessions where law students are taught to believe that implicit bias is the sine qua non of biased behavior."

More specifically, first, "researchers have failed to delineate any meaningful distinction or definition distinguishing explicit (i.e., conscious) bias from implicit bias, and thus cannot explain why implicit, rather than explicit bias is the primary cause of overt and subtle discriminatory conduct. Put simply, the conclusion that implicit bias underlies certain types of discriminatory behavior is predicated on an inference –and nothing more."  "Additionally,and relatedly, such studies are based substantially on the theory of disparate impact, which asserts that, where marginalized groups are disproportionately affected by a policy or practice, that impact is likely due to discrimination (and implicit bias). If, for example, an employer hires more Caucasians than African-Americans, such conduct is often attributed to implicit bias, despite the fact that bias or non-discriminatory factors, such as interview performance, `fit' with an organization, and other intangible factors could be responsible for this disparity. In other words, quantifying the impact of implicit bias on discriminatory behaviors has proven elusive, thus rendering conclusions regarding its effect tenuous."

Second, "What's more, the extant measures of implicit bias are flawed and thus provide no reliable method by which to quantify the effects of implicit bias on biased behavior. For example, the most common measure of implicit bias is the Implicit Association Test (IAT), which purports to measure the strength of associations between concepts (e.g., African-American, Hispanic, or Muslim persons), valuations (e.g., good, bad), and stereotypes (e.g., smart, dumb). (Based on the results of this test, researchers assess the degree to which an individual harbors implicit biases toward particular groups. But recent research has revealed that the IAT is flawed. To begin with, the IAT sets arbitrary cutoff scores to determine whether an individual's responses reveal implicit biases, yet fails to provide any assessments of the differences, if any, between the many individuals who score above or below those cutoffs."  "Furthermore, IAT scores are arguably context-dependent, as the IAT produces different results for individuals when they complete the test multiple times. In essence, although results on the IAT are 'not as malleable as mood,' they are not as reliable as a personality trait."  Moreover, it is difficult to assess whether the IAT is measuring unconscious attitudes that reflect associations resulting from environmental influences. Finally, and as stated above, the IAT fails to meaningfully distinguish between implicit and explicit bias. As one scholar explains, 'the IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.'"

Finally,  "the IAT, and implicit bias generally, is weakly correlated to discriminatory behaviors."  "In fact, the evidence shows precisely the opposite: 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.'"

In sum, "As one social psychologist explains: Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance,what most implicit bias methods actually measure; their ability to predict discrimination is modest at best;their reliability is low; early claims about their power and immutability have proven unjustified."  Consequently, "This is not to say, of course, that implicit bias does not exist, or that it does not have a material impact on biased behavior. It is to say, however, that the IAT –and evidence supporting a connection between implicit bias and biased behavior –is, at best, premature and, at worst, untenable."

Why have so many scholars uncritically advocated implicit biases and implicit bias tests? Cognitive Biases--the Confirmation Bias, the Semmelweis Reflex, and the Bandwagon Effect.  Professor Gordon defines the confirmation bias as "the tendency to selectively search for information that confirms prior beliefs, hypotheses, or judgments." So, those who support implicit bias theory only look for evidence that supports their theory.  The Semmelweis reflex is "The tendency to reject new evidence that contradicts a paradigm."  (Wikipedia: List of Cognitive Biases)  This is the most important reason that the shaky implicit bias theory is so widely accepted.  Scholars who support the implicit bias theory simply ignore all contradictory evidence due to this cognitive bias.  Finally Gordon defines the bandwagon effect as "our tendency to have our attitudes and beliefs shaped by others, due to our innate desire for social harmony." To paraphrase Gordon: If one clinician has an opinion about a [theory], the other may be unconsciously swayed by that person's opinion and therefore less likely to speak up [about the flaws in the theory], even if her opinion differs."

In sum, one foundation of Gordon's article, cognitive bias theory, has firm scientific support, while the other, implicit bias theory, does not.   What does this mean for Gordon's suggestions and conclusions?  Not much.  Gordon's ideas for avoiding unfairness in feedback and grading are fully supported by cognitive bias theory.  She does not need implicit bias theory to support her conclusions.  For example, awareness of the primacy effect and the confirmation bias tells us that we shouldn't just evaluate a student on what she does at the beginning of the semester, but be prepared to change our opinion of that student as the semester progresses.  Similarly, awareness of the in-group bias tells us that we should be careful that we treat those who are not in our group as fairly as in-group members.

Professor Gordon has written an amazing article.  When we eliminate the one flaw in her article, we can follow her suggestions and give students fairer and more effective feedback.

(Scott Fruehwald)

Other sources criticizing implicit bias theory:

The Problem with Explicit Bias Training, Scientific American.

The False Science of Implicit Bias, WSJ.

Fred Oswald and Phillip E. Tetlock and colleagues, Predicting Ethnic and Racial Discrimination, Journal of Personality and Social Psychology, 2013.

 

May 4, 2021 | Permalink | Comments (2)

Thursday, April 29, 2021

Very Troubling Report on ABA Experiential Requirement

Robert Kuehn has produced a thorough, but troubling, report on the effect of the new six-credit requirement in ABA Standard 303(a)(3).  Simply stated, the new requirement has made very little change in law students' ability to take hands-on classes.

TaxProf Blog op-ed:  Implementation of the ABA’s New Experiential Training Requirement: More Whimper Than Bang, by Robert Kuehn

Excerpts:

"When the ABA adopted a new experiential training requirement in 2014, there was hope it would spur law schools to significantly change the way they prepared students for legal practice. The new six-credit requirement in ABA Standard 303(a)(3) was less than the fifteen credits proposed by some educators and did not include a mandate for a law clinic or externship experience. Nonetheless, the six credits were an improvement over the ABA’s previous “substantial instruction” in professional skills requirement.[1] But data from the initial implementation of the new experiential requirement suggest its effect has been more of a whimper than the bang some hoped for, with little evidence it has spurred legal education to enhance the ability of students to get hands-on training in professional skills."

"Data from the first two years of the new six-credit requirement in 2019 and 2020 show no increase in the positions available to students in clinics or simulations and even a decrease in actual enrollment in field placement courses, when normalized to address fluctuations in nationwide law school enrollment. While some law schools have made important changes to their curriculum, the graph below indicates that, on average, schools have not reported positive changes in law clinic, field placement, or simulation data since the ABA’s adoption of the new experiential standard in 2014."

"The New York Court of Appeals followed the ABA in 2015 with its own new skills competency standard for bar candidates, proclaiming that 'the goal of ensuring effective, ethical and responsible legal services in New York requires more than what the new ABA Standards provide. . . .'  The graph below shows that the New York competency standard, indeed, does not appear to have spurred New York’s law schools to noticeably enhance their professional skills training of students or to provide more training than schools in states following only the ABA requirement."

"Data from the recent Center for the Study of Applied Legal Education (CSALE) 2019-20 Survey of Applied Legal Education of 95% of law schools also show little measurable effect from the new experiential training standard."

Why has there been so little progress? "In both surveys, however, significant numbers of schools simply restructured existing courses to meet the experiential training definition, including merely relabeling parts of the first-year required legal writing course as 'experiential' or offering a one-credit simulation component to a doctrinal course."

In sum, "To the extent the ABA’s new six-credit experiential requirement was intended to provide law students with more meaningful hands-on training in important professional skills, its own data do not show that intended result. In addition, surveys of schools on their implementation of the new training requirement do not show significant gains in skills training as a result of the new accreditation standard."

Professor Kuehn asserts, "It is time for the ABA to address these deficiencies by at a minimum requiring schools to report actual enrollments in law clinic and simulation courses so that the ABA can truly judge the effect of its requirement and prospective applicants to law schools will not continue to be potentially deceived by reports of ethereal “available” law clinic opportunities.

Yet students, and the clients they will soon represent in practice, deserve more than just enhanced reporting requirements. The ABA’s six-credit experiential requirement remains far below the skills training other professional schools require of their students. Two recent studies on legal education have highlighted the need for greatly enhanced skills training, including mandatory clinical training prior to bar licensing. The ABA should heed these calls for reform and revisit the proposals for fifteen-credits of experiential coursework and a mandatory, live-client clinical experience for all J.D. students."

(Scott Fruehwald)

 

 

April 29, 2021 | Permalink | Comments (0)

Monday, April 26, 2021

Explicit Instruction in Legal Education: Boon or Spoon? by Beth A. Brennan

I have previously argued against the traditional law school teaching technique of "hiding the ball."  ( How to Help Students from Disadvantaged Backgrounds Succeed in Law School)  Rather, research has shown that scaffolding, giving students part of the answer so that they can focus on what you want them to learn, is a much more efficient technique than implicit learning.  Likewise, while professors should draw information out of students' minds, they eventually need to summarize the material so that the students can see that they have learned the right things.

Beth A. Brennan has written an article in which she shows in detail that explicit teaching is better than implicit teaching.  She notes that explicit teaching is better for students who come in with weaker backgrounds; it helps them catch up better than hide the ball.

Explicit Instruction in Legal Education: Boon or Spoon? by Beth A. Brennan.

Abstract

While legal education unquestionably hones students’ critical thinking skills, it also privileges students who are faster readers and have prior background knowledge or larger working memories. According to the prevailing mythology of law school pedagogy, students learn by struggling to find their way out of chaos. Only then is their learning deep enough to permit them to engage in critical thinking and legal reasoning.

Learning theory and research suggest this type of “inquiry” learning is not an effective way to introduce novice learners to a subject. Lacking basic substantive and procedural knowledge, students’ struggles are often unproductive and dispiriting.

Initial explicit instruction early in a student’s learning more predictably creates stable, accurate knowledge. Because higher-order thinking depends on having some knowledge, ensuring students have a strong foundation of substantive and procedural knowledge increases the likelihood that they will develop critical thinking skills.

However, legal education uniformly dismisses anything that looks like “spoon-feeding.” If the academy is going to incorporate learning theory into its pedagogy, it must understand and articulate the differences between spoon-feeding and explicit instruction.

This Article examines explicit instruction as a pedagogical tool for legal educators. Part I examines cognitive psychological theories of thinking and learning to understand the differences between spoon-feeding and explicit instruction and explain why initial explicit instruction is useful. Part II delves into the cognitive differences between novices and experts that support initial explicit instruction. Part III examines experts’ cognitive barriers to effective teaching. Part IV provides examples of how explicit instruction can be used in the law school classroom.

The Article concludes that the time is ripe for the academy to bring explicit instruction out of the shadows, and to incorporate initial explicit instruction into legal education.

(Scott Fruehwald)

P.S. Teaching explicitly is not "dumbing it down" for the weaker students.  Research has shown that all students benefit from properly structured explicit teaching.

April 26, 2021 | Permalink | Comments (1)

Saturday, April 24, 2021

Idea Laundering in Legal Scholarship

Yesterday, Eugene Volokh had an interesting post on the Volokh Blog.  In an article discussing mass shootings, he noted that an article in a major law journal (apparently, Yale) observed, "White men have committed the vast majority of mass shootings in the United States during the last thirty years."   Volokh checked the original statistics, and he found that this claim was wrong.  He declared, "But when one goes to the source, one sees that it reports 107 mass shootings, for 103 of which the shooter's race was indicated. But of those 103, 60 were white: 58%, hardly a 'vast majority.'"  (Also, 58% is slightly less than the percentages of whites in the overall population.)

He then argued, "That, though, is the point: Even seemingly credible sources, such as a serious scholar in a serious academic journal, make errors. If you're writing on the subject and relying on the source, don't let their errors become your errors: Read, quote, and check the original source, going as far back in the chain of citations as is feasible."  Consequently, "I often urge my students to always read, quote, and cite original sources, rather than relying even on seemingly trustworthy intermediate sources (such as law review articles or court opinions)."

Great advice!  I would go one step further, however, and check for "idea laundering."

A recent article has observed, "Idea laundering refers to a process that may be growing more common in academic publishing. It involves the capture of peer review processes by activists to create the false impression that certain ideologically and rhetorically useful claims have scientific credibility, even when, by conventional scientific standards of rigor, logic, and strong evidence, the claims command no credence.

The process at its most extreme works like this. Some idea is presented or even claimed to be true in a book chapter or article, with little or no evidence. It might even be done reasonably, as speculation, or it might involve a researcher leaping to an unjustified conclusion based on weak evidence. The idea, now published in a peer reviewed journal, can now be cited by other researchers publishing in other peer reviewed journals as 'evidence' for the validity of the claim. In the total absence of validity evidence, new researchers can then further cite one another's peer reviewed publications in support of the claim."

The authors then apply idea laundering to microaggressions: "The CMC appears to be a product of idea laundering because it is currently ricocheting through psychology scholarship and the broader culture as if its validity has already been scientifically established. The problem is, discovery that the emperor has no clothes (at least not yet) requires the deep dive into primary sources that most writers are not inclined to, or don't have time to, undertake."

The authors declare that "What's needed is 'severe testing.' A severe test is one that will find flaws in a claim, including alternative explanations, if they are present. After surviving severe testing, application of claims to the real world then require additional research that is plausibly described as an order of magnitude more difficult. For example, far more validity work is needed to identify which types of behaviors consistently stem from prejudice and are perceived as slights."

Idea laundering has also been observed by the popular press.  For example an article in the Wall Street Journal stated, "You’ve almost certainly heard some of the following terms: cisgender, fat shaming, heteronormativity, intersectionality, patriarchy, rape culture and whiteness.

The reason you’ve heard them is that politically engaged academicians have been developing concepts like these for more than 30 years, and all that time they’ve been percolating. Only recently have they begun to emerge in mainstream culture. These academicians accomplish this by passing off their ideas as knowledge; that is, as if these terms describe facts about the world and social reality. And while some of these ideas may contain bits of truth, they aren’t scientific. By and large, they’re the musings of ideologues."

Of course, idea laundering is not limited to the far left.  Paul Campos has asserted concerning claims that Kamala Harris was not an American citizen, "All this is about idea laundering. It's about using right wing money to hijack American research universities, so their academic reputations can be exploited to put a cultural stamp of approval on the most extreme forms of cultural and political reaction."

In other words, it's about making the kind of thing Eastman is paid to disseminate academically respectable enough so that it has to be taken seriously as part of academic and cultural discourse - because refusing to do so would then just be an example of how PC Cancel Culture is inimical to the free and open exchange of ideas."

Finally, idea laundering is not limited to ideological writings; it can appear in neutral writing.  For example, I have written a great deal on the neuromyth of preferred learning styles.  (Theory-Induced Blindness in Legal Scholarship) The reason this neuromyth multiplied is because secondary sources copied other secondary sources without going back to the original scientific research and checking for dissenting views.

In sum, idea laundering can be a significant problem in scholarship, including legal scholarship.  A rigorous scholar checks original sources to establish the accuracy of facts and to determine whether idea laundering has occurred.  Legal scholars need to adopt this and other critical thinking techniques.

(Scott Fruehwald)

 

 

April 24, 2021 | Permalink | Comments (0)

Wednesday, April 21, 2021

Formation Without Identity: Avoiding a Wrong Turn in the Professionalism Movement by Eli Wald

I have mentioned several times that the Council of the Section of Legal Education and Admissions to the Bar has proposed a change to Standard 303 that would require law schools to provide substantial opportunities for "the development of professional identity."  (here)  I anticipate that the Council will take up the matter at their May meeting.

Just in time, Eli Wald has posted an important article on professional identity: Formation Without Identity: Avoiding a Wrong Turn in the Professionalism Movement.  The key point of the article is that law schools should teach professional identity in a contextualized manner: "Introducing students to generalized responsibilities and values of the profession such as competence, loyalty, justice, equality, fairness, integrity,and ongoing professional learning cannot serve as a suitable professional foundation because the practice of law is increasingly diverse and contextualized. Different lawyers experience the responsibilities and values of the profession in radically different ways, because attorneys practice in many areas of law with varying organizational structures and serve distinct types of clients with contrasting objectives. In short, although professional identity formation must be grounded in the core responsibilities and values of the profession, it must also acknowledge and introduce students to the immense variety of professional roles, circumstances,and contexts in which professional identity is forged and tested."

I agree with Professor Wald; law schools shouldn't teach professional identity from an abstract, one size fits all point of view.  I think he has done an excellent job of dividing the legal profession into different areas and showing how professional identity works in these areas.  I also feel that he has shown how law schools can effectively teach professional identity in a contextualized manner.

I go one step further in my book, Developing Your Professional Identity: Creating Your Inner Lawyer (2015, 2020).  I advocated that law schools help students develop their individual professional identities.  In the Preface I wrote, " I want you to think about who you will be as a lawyer–to consciously develop your professional identity. You need to reflect on how you will fit into the legal world. What are the ethics, practices, and conventions of the legal world? How do I fit my personal morality into this world?"  Throughout the book, I created exercises to help students do this.

With the new ABA proposal, legal education stands at a cross-roads.  Do we continue to educate students in the abstract manner we have in the past, or do we prepare students for the complicated realities of the 21th century world?  Society depends on how the ABA Council and legal educators answer this question.

(Scott Fruehwald)

Abstract

Critics calling for a law school reform agenda centered around integrating skills and formation of professional identity into the mainstream of legal education may have their day. External pressures, including increasingly competitive practice realities, heightened client sophistication, new technologies, rising stratification within the profession, and attorney under- and unemployment are opening the door for policy entrepreneurs to begin the process of reforming legal education.

At this defining moment of its existence, however, the professionalism movement grounded in the 2007 Carnegie report titled Educating Lawyers is at risk of making a mistake that may thwart its compelling agenda. Rather than base their identity formation schema on the actual professional identity of lawyers, Educating Lawyers and its advocates have accepted the abstract professional identity rhetoric of the organized bar as the basis of their model. This abstract rhetoric, impressive and well-rehearsed as it may be, is divorced from the actual identities of lawyers and therefore cannot adequately ground the identity formation of law students.

Introducing students to generalized values of the profession such as competence, loyalty, justice, equality, fairness, integrity, and ongoing professional learning cannot serve as a suitable professional foundation because the practice of law is increasingly diverse and contextualized. Different lawyers experience the responsibilities of the profession in radically different ways, because attorneys practice in many areas of law with varying organizational structures and serve distinct types of clients with contrasting objectives. Although professional identity formation must be grounded in the core values of the profession, it must also acknowledge and introduce students to the immense variety of professional roles, circumstances, and contexts in which professional identity is forged and tested. In particular, in the face of increasingly competitive practice realities stressing competence, zeal, loyalty to clients, and instrumental reasoning while deemphasizing morality, justice, equality, and the public interest, law schools must instill these core latter commitments of the profession in their students in context.

This article argues that the professionalism movement must avoid developing an integrated model of legal education relying on the abstract professional identity rhetoric of the organized bar and the existing elite law school model. Rather, reform efforts must be centered upon developing a contextual model that considers how actual lawyers experience professional responsibilities and values: that is, how they develop professional identities. Specifically, because most students, graduates of non-elite law schools, are likely to experience such duties and values in circumstances different than their elite counterparts, non-elite law schools must not accept the elite paradigm “as is.” Instead, they must develop a model that introduces their students to the professional challenges they are likely to encounter. Elite law schools, in turn, must revise their traditional client-centered instrumentalist model and commit to inculcating the duties and values of morality, justice, equality, and commitment to the public interest in the contexts in which their students will experience them. The article offers a blueprint for professional identity formation for the majority of non-elite law schools and the mainstream of legal education, as well as for elite law schools.

April 21, 2021 | Permalink | Comments (0)

Saturday, April 17, 2021

Microaggression Theory Debunked?

There are many pop, pseudo-scientific theories floating around out there.  One that I have written about extensively is the disproven theory that students have "learning preferences."  (Theory-Induced Blindness in Legal Scholarship).  Now, a law professor and a leading psychologist have written an article that tries to debunk microaggression theory. Read the article, and decide for yourself.

Microaggressions, Questionable Science, and Free Speech by Edward Cantu & Lee Jussim.

Abstract

The topic of microaggressions is hot currently. Diversity administrators regularly propagate lists of alleged microaggressions and express confidence that listed items reflect what some psychologists claim they do: racism that is, at the very least, unconscious in the mind of the speaker. Legal academics are increasingly leveraging microaggression research in theorizing law and proposing legal change. But how scientifically legitimate are claims by some psychologists about what acts constitute microaggressions? The authors—one a law professor, the other a psychologist—argue that the answer is “not much.” In this article, the authors dissect the studies, and critique the claims, of microaggression researchers. They then explore the ideological glue that seems to hold the current microaggression construct together, and that best explains its propagative success. They close by warning of the socially caustic and legally pernicious effects the current microaggression construct can cause if academics, administrators, and the broader culture continue to subscribe to it without healthy skepticism.

Excerpts:

"By “current microaggression construct” (hereafter CMC), we mean the current definition of microaggressions and the set of claims microaggression researchers make about them, the most important of which are claims about what acts count as microaggressions and why."

"One risk is that, after some claim becomes a popular research topic in another field, but before research establishes that claim as valid, it will take off like wildfire in legal scholarship without sufficient gatekeeping. This is what has happened with microaggressions: educators, scholars, and administrators have accepted the CMC as valid even though psychologists have not established its scientific legitimacy."

"The possible reasons for this are manifold. First, academics and administrators may have a willingness to accept a claim at face value because they deem the concept to be useful—ideologically, for example—such that confirmation bias cancels vigilance."

" In short, it is a mistake to believe that, merely because an idea appears frequently in academic publications, it constitutes scientific fact."

"After reviewing scholarship in which psychologists attempt to confirm the legitimacy of the CMC, and in which they debate the issue with dissenting psychologists, we conclude that the current operationalization of the CMC in social justice discourse, legal scholarship, and education administration is significantly unwarranted."

"We are also concerned about how the current propagation of the CMC, given its lack of adequate bases and therefore its limited utility, might have the primary effect of proving socially caustic—and therefore counterproductive in the quest for social justice—without countervailing benefits."

"Therefore, we recommend that scholars and administrators—and everyone else for that matter—generally refrain from relying on commonly propagated lists of microaggressions as reflecting anything meaningful, at least until psychologists perform the significant amount of empirical work left to be done to render the CMC scientifically valid and useful."

"There is little to no basis for academics and administrators to responsibly accept commonly propagated lists of microaggressions as reflecting actual microaggressions."

"Microaggression researchers’ fundamental challenge is one they so far have failed to meet: they have not provided sound scientific bases for labeling as microaggressions most of the items they so label."

"As such, the legitimacy of lists of microaggressions depends on researchers being able to divine objectively racist meaning in facially innocuous acts that others cannot detect. And the propagative success of the CMC has relied on the public believing that researchers are able to do just this. This assumed ability to discern hidden forces and essences in social phenomena is now common in social justice discourse and critical academic theory."

"Notwithstanding, the evidence to support the claim of intrinsic racism is non-existent. Such evidence is conceivably obtainable. Researchers would need to: (1) assess levels of racism among a group of Whites; (2) assess whether those levels of racism perfectly or very substantially correlate with the likelihood of microaggression commission; and (3) rule out alternative explanations for the commission of alleged microaggressions. Nothing provided so far by microaggression researchers comes close to meeting this threshold. Rather, researchers seem to simply assume the respective embedded meanings, and therefore declare statements and questions to be microaggressions essentially by fiat."

"Of course, the assumption of embedded racist meanings is not stated as an assumption, but a reliance on intuitive assumptions is what researchers’ methodology in this regard seems to boil down to."

"Of course, this methodology simply makes the study participants’ intuition controlling rather than the researchers’, but the problem remains: this subjective self-reporting is clearly insufficient for showing that listed microaggressive items have objectively embedded in them racist messages. It merely demonstrates that some POC suspect such subtle racism is at play when hearing some listed microaggressions."

"In short, the methodology generally employed to generate lists of microaggressions has been to simply ask POC or other psychologists (“diversity experts” for example) to think of ways in which racism can subtly manifest in language, then to generate examples of statements or questions that they intuitively conclude reflect this subtle racism. The problem with this methodology should be obvious: how do we know the respondents are correct?"

"So the problem remains: microaggression researchers, no matter how many times they respond to criticism, seem to be unable to substantiate their designation of listed acts as microaggressions consistent with their own definitions of the phenomenon. The intractability—and the significantly discrediting nature—of this evidentiary problem with the CMC is highlighted when one engages in steelmanning attempts to reconstruct the methodology of the CMC in order to ground the relevant conclusions in something measureable and verifiable."

"Idea laundering refers to a process that may be growing more common in academic publishing. It involves the capture of peer review processes by activists to create the false impression that certain ideologically and rhetorically useful claims have scientific credibility, even when, by conventional scientific standards of rigor, logic, and strong evidence, the claims command no credence."

"The process at its most extreme works like this. Some idea is presented or even claimed to be true in a book chapter or article, with little or no evidence. It might even be done reasonably, as speculation, or it might involve a researcher leaping to an unjustified conclusion based on weak evidence. The idea, now published in a peer reviewed journal, can now be cited by other researchers publishing in other peer reviewed journals as “evidence” for the validity of the claim. In the total absence of validity evidence, new researchers can then further cite one another’s peer reviewed publications in support of the claim."

"The CMC appears to be a product of idea laundering because it is currently ricocheting through psychology scholarship and the broader culture as if its validity has already been scientifically established. The problem is, discovery that the emperor has no clothes (at least not yet) requires the deep dive into primary sources that most writers are not inclined to, or don’t have time to, undertake."

"What’s needed is “severe testing.” A severe test is one that will find flaws in a claim, including alternative explanations, if they are present. After surviving severe testing, application of claims to the real world then require additional research that is plausibly described as an order of magnitude more difficult. For example, far more validity work is needed to identify which types of behaviors consistently stem from prejudice and are perceived as slights."

"At this point, it should be sufficiently clear that researchers have not come close to meeting their central premise about embedded meanings. Researchers rather assume the validity of the premise, and this assumption is the thread that holds the CMC together. Without it, the CMC would reduce to simply lists of items that people do or say that could be inspired by, or interpreted as, racist. But such a construct would be next to useless for obvious reasons."

"In short, we are concerned that the CMC can be disruptive to what arguably is the most significant prerequisite to effectively combat bigotry: interpersonal connection, goodwill, charity, and a reflexive humanism (as opposed to a reflexive emphasis on difference). In light of this, we think greater vigilance about the integrity of knowledge production is needed, especially when it comes to socially controversial, complicated, and sensitive topics such as the nature and extent of subtle racism."

If you have an opinion concerning this article, please post a comment.  I am very curious as to what legal scholars think about this article.

(Scott Fruehwald)

April 17, 2021 | Permalink | Comments (0)

Thursday, April 15, 2021

The Unsettling Truth about Our Legal System: What the Mind Sciences Can Teach Teenagers About Criminal Injustice by Adam Benforado

Here is an excellent article on how cognitive biases affect criminal justice.

The Unsettling Truth about Our Legal System: What the Mind Sciences Can Teach Teenagers About Criminal Injustice by Adam Benforado.

Abstract

Young people deserve to be told the truth, even the painful truths that shake their faith in our existing institutions and norms. As a law professor, I see one of my main jobs as teaching skepticism. The best lawyers have a skeptical eye. The problem is that in law there is a particularly strong deference to the status quo—indeed, to the past. My students come in assuming that the cases in my Criminal Law casebook were all decided correctly and that the criminal code provisions we study are fair and effective. They assume that the people who gave us our laws, precedents, and procedures were smarter and more enlightened than they are. That’s a dangerous mindset and we would do well—all of us—to combat it. In nearly every other field of inquiry innovation is encouraged and rewarded. So why not in law?

(Scott Fruehwald)

April 15, 2021 | Permalink | Comments (0)

Monday, April 12, 2021

Adding Professional Identity to The Law School Curriculum

Last month, I mentioned that the Council of the Section of Legal Education and Admissions to the Bar had proposed a change to Standard 303 that would require law schools to provide substantial opportunities for "the development of professional identity."  (here)  The comment period has now closed.

There were a large number of comments, most of which were positive. (here)  The most important comment came from the Holloran Center: "The Center strongly endorses the Council's proposed revisions to Standards 303."

However, the Center did note that the interpretation needed to be more focused. ''We propose the modest changes to Interpretation 303-5 discussed below to bring the Interpretation's language into line with the scholarship on fostering each student's formation of a professional identity."

Here is the Council's proposed interpretation: "Professional identity includes, but is not limited to, the knowledge, skills, values and morals, goals, and personality traits considered foundational to successful legal practice. Students should have frequent opportunities to develop their professional identity during their time in law school, starting in the first year. These opportunities should not take place solely in one course but should be varied across the curriculum as well as in co-curricular and professional development activities as the development of a professional identity requires student reflection and growth over time."

Here is the Center's suggested change: "Professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice. Students should have frequent opportunities to develop their professional identity during their time in law school, starting in the first year. These opportunities should not take place solely in one course but should be varied across the curriculum as well as in co-curricular and professional development activities as the development of a professional identity requires student reflection and growth over time."

(Sorry, I could not reproduce the Center's marked up version on this platform  You can find it here.)

 The Center wrote, "The reason for these modest changes is that the Council's proposed Interpretation 303-5 language is overbroad in saying that "Professional identity includes, but is not limited to: the knowledge, skills, values, morals, goals and personality traits considered foundational to successful legal practice." The concept of a student's formation of a professional identity is most clearly articulated in the five Carnegie Foundation for the Advancement of Teaching's studies of higher education for the professions: clergy (2006); lawyers (2007); engineers (2009); nurses(2010); and physicians (2010). In these five studies the Carnegie Foundation defined the formation of a professional identity in the context of the three general apprenticeships that the new entrant to each profession endeavors to master: the cognitive apprenticeship, the practical apprenticeship, and the apprenticeship of professional formation. The cognitive apprenticeship "focuses the student on the knowledge and way of thinking of the profession." In other words, the cognitive apprenticeship concentrates on the analytical skills unique to each profession applied to the doctrinal knowledge of that profession. The second apprenticeship is "a practical apprenticeship to learn skilled know-how and clinical reasoning." These are the practical (not analytical) skills necessary for effective practice and include, for example, all the relationship skills necessary to engage with clients and colleagues. This apprenticeship usually involves practice-based learning. The third apprenticeship is the apprenticeship of formation of a professional identity, which "introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible."

The most important element of a professional identity is internalizing a deep responsibility to the person served (the client) and society in the area of the profession's responsibility. The formation of a professional identity is "an on-going self-reflective process involving habits of thinking, feeling, and acting.” It is a lifelong commitment to continued progress toward excellence and the values and guiding principles of the profession.

The Council’s proposed Interpretation 303-5 defining professional identity includes all three apprenticeships: “knowledge” – the first apprenticeship; “skills” – the second apprenticeship; and “values” and “morals” – the third apprenticeship. We recommend clarifying that professional identity “focuses on what it means to be a lawyer and the special obligations that lawyers have to their clients and society. The development of professional identity should involve an intentional exploration of the values and guiding principles considered foundational to successful legal practice.”

In addition, since the publication of Educating Lawyers in 2007, and particularly in the last several years, with the 2014 Survey of Law Student Well Being11 and the Report of the National Task Force on Lawyer Well Being,2 there has been much greater awareness that the well-being of law students and lawyers is profoundly important to the legal profession and to the clients that lawyers serve. We believe “well-being practices” are just as important to understanding what it means to be a lawyer and to prepare oneself for long-term success as a lawyer as the values and guiding principles that are already referenced in this clause. We therefore recommend inclusion of “well-being practices” as part of this sentence describing professional identity."  (I omitted the footnotes because they do not reproduce well on this platform.  You can find them at the link above.)

Several other commenters agreed with the Holloran Center's more focused language, including an extended comment by the Regent Center for Ethical Formation.  (here). 

As I have stated before, I strongly support this proposal.  Law students need to learn about what it means to be a lawyer as much as they need to learn legal rules and how to apply them.  I also support the Holloran Center's more-focused revision to the interpretation.

(Scott Fruehwald)

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April 12, 2021 | Permalink | Comments (0)

Monday, April 5, 2021

The Many Problems of the U.S. News Law School Rankings. Is it time to end them?

You have probably heard about the many problems with the U.S. New Law School rankings this year.  In fact they were so bad that Brian Leiter was able to pull off a convincing April Fool's joke about them last week.  (here)  In any event, Derek Muller wrote a serious critique of the problems:

The USNWR law school rankings are deeply wounded--will law schools have the coordination to finish them off?

Excerpts:

"But this is, perhaps, the moment for law schools seeking to finish off the USNWR rankings. In the last month, USNWR has had four separate methodological alternations between the preliminary release of rankings and the final release."

"But if there’s a moment to topple USNWR law school rankings, it is now. We’ll see if law schools do so."

(Scott Fruehwald)

 

April 5, 2021 | Permalink | Comments (0)

Saturday, April 3, 2021

The Science of Successful Teaching: Incorporating Mind, Brain, and Education Research into the Legal Writing Course by N.E. Millar

I have long advocated the use of brain science as the basis of legal pedagogy.  Here is a very good article on the subject:

The Science of Successful Teaching: Incorporating Mind, Brain, and Education Research into the Legal Writing Course by N.E. Millar

Abstract

Despite more than 200 years of legal education, “there is almost no quantitative pedagogical research focused specifically on legal education and [its] dominant teaching and learning techniques.” 3 As a consequence, legal educators frequently turn to research in other fields to help inform best practices in law schools. 4

One such field, the emerging discipline of mind, brain, and education (“MBE”) science, offers valuable insights into how the human brain works, how humans learn, and how teachers can teach to optimize learning. While MBE research applies to all facets of teaching and to all subjects, this paper explores its relationship to a specific law school topic that is both increasingly important and difficult to teach: instruction on fundamental writing mechanics in a first-year legal writing course.

As discussed in this article, clear writing is essential to effective lawyering, yet instruction on writing mechanics--the building blocks of clarity--poses unique challenges to law schools and law professors. One way to surmount these challenges is to apply MBE research to teaching mechanics in order to make this instruction more effective.

(Scott Fruehwald)

April 3, 2021 | Permalink | Comments (0)

Friday, April 2, 2021

Bend It Like Beckham? Using Cognitive Science To Inform Online Legal Research and Writing Pedagogy During The Pandemic by James B. Levy

I have been absorbed in finishing a couple of articles recently, so it's time to catch up with this blog.  Let's start with a wonderful new article by my co-blogger, Jim Levy.

Bend It Like Beckham? Using Cognitive Science To Inform Online Legal Research and Writing Pedagogy During The Pandemic by James B. Levy.

Abstract

This article has been submitted for publication in a forthcoming volume of the Nova Law Review devoted to a symposium it sponsored and was held virtually on February 26, 2021 entitled "Engaging LRW Students In The ‘New Normal’ – Teaching In The Time Of COVID." It discusses strategies for adapting legal research and writing lessons developed for the classroom to online videoconferencing platforms like Zoom in response to the shift to online legal education in Spring 2020 due to the COVID crisis. Also included in this article is a section discussing an oft overlooked topic in the literature about online legal education concerning issues to consider in selecting tech equipment for our desktop classrooms that may enhance our effectiveness as online teachers. With respect to online legal research and writing pedagogy, this article suggests an approach informed by principles of cognitive science to make use of online videoconferencing tools in ways that actively engage students, that strive to make our teaching as multimodal as possible given the constraints of these platforms, and that reminds us of the importance of establishing a supportive classroom environment given the stress that students have faced due to the pandemic. This article also incorporates the results of several studies in a small but growing body of empirical research that has examined the effectiveness of remote online teaching during the pandemic in the context of undergraduate and non-law school graduate degree programs. As a result, this article provides a good snapshot of what researchers have concluded works, and doesn’t work, with respect to teaching via a videoconferencing platform in a time of COVID. The author would like to thank the student members of the Nova Law Review for encouraging me to write this article.

(Scott Fruehwald)

 

April 2, 2021 | Permalink | Comments (0)

Thursday, March 18, 2021

Who will march for Asian Americans after the killings in Atlanta?

My former Hofstra colleauge, Alafair Burke has a piece in the Washington Post about the recent violence against Asian-Americans.

Opinion: Who will march for Asian Americans after the killings in Atlanta? by Alafair Burke.

Excerpts:

"Between March 19, 2020, and Feb. 28, 2021, the nonprofit group Stop AAPI Hate collected 3,795 first-person accounts of incidents ranging from casually racist comments to vicious assaults. According to data from California State University at San Bernardino’s Center for the Study of Hate and Extremism, in 2020, anti-Asian hate crimes in 16 of the country’s largest cities increased almost 150 percent over the previous year, even as the overall number of hate crimes reported to the police declined."

"These are painful statistics and stories — especially when it feels like no one actually cares."

"Having marched in my share of streets, I am left asking, who will march for us? Racism against Asian Americans often goes unrecognized and unchallenged because of stereotypes that depict Asian Americans as people who don’t need protection from abuse — or who don’t deserve it."

"As I read the coverage of the Atlanta shootings, I was sad and angry and frustrated. I found myself thinking, If this were happening to any other racial group, we’d treat it differently."

I have been very concerned for my Asian-American friends since the beginning of the pandemic.  There is a lot of ignorance in our country.

(Scott Fruehwald)

March 18, 2021 | Permalink | Comments (0)

Monday, March 15, 2021

The Myers-Briggs Personality Test and Theory-Induced Blindness in Legal Scholarship

Last week, I posted about my new article, Theory Induced Blindness in Legal Scholarship.  A couple of days ago, I ran across another article that questioned the Myers-Briggs personality test, which has been used in psychology, education and business for many years.  (here)

The article calls the test BS, then lists several reasons why:

  • Reason 1: It Is Based on Carl Jung’s Ideas
  • Reason 2: The Test Lacks Predictive Validity: It Does Not Predict Outcomes in the Real World
  • Reason 3: Human Personality Falls Along Continua, Not Into Discrete Categories
  • Reason 4: The Types Used by the MBTI Have Arbitrary Boundaries
  • Reason 5: The Myers-Briggs Has Poor Reliability
  • Reason 6: The Myers-Briggs Misleadingly Implies That There Are Big Differences Between Types and Minimal Differences Within a Type
  • Reason 7: When You Turn a Continuous Variable Into a Categorical One, You Throw Away Information
  • Reason 8: The MBTI Doesn’t Measure Neuroticism

The author then asks why people still believe in the test, stating "I'm not sure why the Myers-Briggs is so popular despite its shortcomings. But candidate reasons include: (1) it has excellent advertising and money to back it; (2) the test is easy to take, easy to administer and easy to calculate; (3) the results are easy to interpret and understand; (4) the test tactfully avoids telling the reader anything negative; and (5) some evidence hints that we might be cognitively disposed to think in terms of dichotomies and dualisms rather than continua (introverted vs. extraverted is more intuitive and less cognitively taxing than a continuum with an infinite number of points on it), leading us to prefer the cruder and less accurate model."

My answer: cognitive biases, especially theory-induced blindness.

(Scott Fruehwald)

March 15, 2021 | Permalink | Comments (0)

Friday, March 12, 2021

My Comment to the ABA on the Proposal to Add Professional Identity Development to the Curriculum

 Council of the Section of Legal Education and Admissions

 March 3, 2021

Re: Modification of Standard 303

Dear Committee:

I enthusiastically support the proposal to add professional identity development to the law school curriculum.  This would be a significant change in legal education because professional identity training helps develop the inner lawyer.  It also helps students learn how to think like self-directed professionals.

Professional identity training is not like the standard law school ethics class.  Ethics involves learning the rules of professional conduct, much like students learn the rules in Civil Procedure.  In contrast, professional identity is a lawyer's personal legal morality, values, decision‑making process, and self‑consciousness in relation to the practices of the legal profession (legal culture).  The "difference between a lawyer told to be professional who acts in this way, and one who acts this way because of her professional identity, is that the lawyer herself believe[s] that these are the ways she should act."  (Benjamin V. Madison III) Professional identity development requires self‑reflection and the "nurturing of a sense of professional self‑consciousness."  (Id.)  In sum, professional identity provides the framework that a lawyer uses to make all her decisions.

In addition, in 2007, the Carnegie Report, designated three "apprenticeships" for educating today's lawyers: 1) the "cognitive apprenticeship," which focuses on expert knowledge and modes of thinking, 2) the "apprenticeship of practice," which educates students in "the forms of expert practice shared by competent practitioners," and 3) the "apprenticeship of identity and purpose," which "introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible."  The Report concluded that current legal education does a good job teaching the first apprenticeship, but a poor one teaching the other two.  Adding professional identity development to the curriculum would help cure the lacuna in the third apprenticeship.

Materials to teach professional identity training are already available.  There are two books on professional identity development:  Patrick Emery Longan, Daisy Hurst Floyd, Timothy W. Floyd, The Formation of Professional Identity: The Path from Student to Lawyer (2019) and E. Scott Fruehwald, Developing Your Professional Identity: Creating Your Inner Lawyer (2015), as well as several law review articles.

Best,

Scott Fruehwald

March 12, 2021 | Permalink | Comments (0)

Wednesday, March 10, 2021

Theory-Induced Blindness in Legal Scholarship

I have just posted a new article on SSRN:
 
 
The truth matters, and, consequently, how scholars seek the truth also matters. Scholars use theory as a framework to help them attain the truth. Accordingly, a scholar's theoretical approach must be accurate; it must not be tainted in any way. Theory-induced blindness taints truth-seeking. Theory-induced blindness has contaminated legal scholarship in many ways.

This article will examine theory-induced blindness in legal scholarship and demonstrate how it has affected the truth of that scholarship on both ends of the ideological spectrum. Part II will introduce the basics of theory-induced blindness. Parts III-VII will present examples of theory-induced blindness in Classical Legal Thought, writing legal history, traditional law and economics, post-modern legal scholars' social constructionist arguments, and two professors' defense of learning style theory. Finally, the conclusion will discuss discuss the best solution for avoiding theory-induced blindness--evaluating theories with critical thinking.
 
(Scott Fruehwald)

March 10, 2021 | Permalink | Comments (0)

Tuesday, March 2, 2021

ABA Proposes to Add Professional Identity Training to Law School Opportunities

We have advocated the addition of professional identity training to the law school curriculum many times on this blog.  Despite our efforts and those of many others, only a few law schools offer professional identity training.  This may soon change.  The Council of the Section of Legal Education and Admissions to the Bar has proposed a change to Standard 303 that would require law schools to provide substantial opportunities for "the development of professional identity."  (here)

Here is the proposed change to Standard 303:

Standard 303. CURRICULUM:. . .

(b) A law school shall provide substantial opportunities to students for:

(3) the development of a professional identity.

New Interpretation 303(5) would state:

"Professional identity includes, but is not limited to, the knowledge, skills, values and morals, goals, and personality traits considered foundational to successful legal practice. Students should have frequent opportunities to develop their professional identity during their time in law school, starting in the first year. These opportunities should not take place solely in one course but should be varied across the curriculum as well as in co-curricular and professional development activities as the development of a professional identity requires student reflection and growth over time."

If adopted, this program would be a significant change in the law school curriculum.  Professional identity development is very different from the current legal ethics class.  Ethics is the rules of professional conduct, while professionalism is the ability to act in a professional manner, such as politeness, thoroughness, and getting work done on time. In contrast, professional identity is a lawyer’s personal legal morality, values, decision-making process, and self-consciousness in relation to the practices of the legal profession (legal culture).  It is the “difference between a lawyer told to be professional who acts in this way, and one who acts this way because of her professional identity, is that the lawyer herself believe that these are the ways she should act."  (Benjamin V. Madison III)  It requires self-reflection and the "nurturing of of a sense of professional self-consciousness.  (Id.)  In sum, professional identity provides the framework that a lawyer uses to make all her decisions.

I strongly support the adoption of this proposal.  You can send comments on the proposal to Fernando.Mariduena@americanbar.org until March 31.

(Scott Fruehwald)

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March 2, 2021 | Permalink | Comments (0)