Legal Skills Prof Blog

Langdell's Subjects

Here is a provocative new article by four leading legal education scholars:

 

Langdell's Subjects by Joan W. Howarth, Claudia Angelos, Mary Lu Bilek, and Deborah Jones Merritt.

 

"In search of answers to the question of what law should provide the foundation of understanding law as a tool for equity and social justice, this Essay explores the origins and constraints of today’s foundational curriculum; analyzes the staying power of that curriculum; describes a workshop we organized as part of the Detroit Mercy Law Review’s March 2024 symposium on legal education; and presents five proposals for new starting places in the required law school curriculum."

 

(Scott Fruehwald)

Best Legal Education Articles of 2024

 

I have posted the Best Legal Education Articles of 2024 on the TaxProf Blog.

Best,

Scott Fruehwald

Books to Help Struggling Law Students

It is that time of year when first-semester grades are starting to come in for first-year law students.  Many of these students are discovering that they didn't do as well as they hoped.  I have written several books to help these struggling law students.

Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals.

This book prepares law students for the practice of law by providing them with a firm foundation in legal reasoning, showing them how to apply legal reasoning skills to facts, and teaching them legal problem solving. I do this by focusing explicitly on the different types of legal reasoning and the types of miniskills needed to develop the different types of legal reasoning.  The chapters in this book present the different types of legal reasoning, the miniskills that are related to the different types of legal reasoning, and how to use these miniskills in combination.  Each chapter includes many exercises.

Chapter One discusses the five types of legal reasoning. Chapter Two teaches you how to be a critical and engaged reader and analyze cases, skills that are needed before you can learn the other miniskills in detail. Chapter Three concerns reasoning by analogy, which involves showing how your case is like a precedent case. Chapter Four examines rule-based reasoning, and how to apply rules to facts. Chapter Five involves synthesizing cases into rules, which is an important skill in establishing the law. Chapter Six investigates statutory interpretation. Chapter Seven brings the prior chapters together, by demonstrating how the different types of legal reasoning relate to the small-scale paradigm (how to organize a simple analysis). Chapter Eight fills in this paradigm by examining how to respond to opposing arguments and distinguish cases. Finally, Chapter Nine serves as a capstone to this book with its presentation of advanced problem solving and creative thinking. The appendices cover how the American legal system developed and canons of statutory construction.

One of the purposes of this book is to allow law students to learn legal skills independently. I want students to be able to get immediate feedback on their learning. Consequently, I have put answers to the exercises at the end of each chapter.

How To Succeed in Law School.

This book shows you what works, and, equally importantly, what doesn't work for succeeding in law school. The book begins by helping you develop a growth mindset and self-motivation. Then, it gives you study techniques that will help you learn efficiently and effectively, such as self-testing, interleaving, and spaced studying, as well as study techniques that are a waste of time. It explains how to read a legal text effectively and how to brief cases. It introduces you to the nuts and bolts of law school and gives you context for law school. It also explains wellness, which will help you survive the rigors of law school. Finally, it helps you become a metacognitive and self-regulated learner, which is important for doing well in law school and as a lawyer.

Legal Writing Exercises: A Practical Guide to Clear and Persuasive Writing for Lawyers. (Also available at the ABA Bookstore online.)

I wrote this book to help law students learn how to edit their legal writing.  Each major section of the book starts with an explanation of a core concept of good writing and is followed by numerous exercises. By working through these illustrative exercises, you'll learn how to write concise, powerful sentences; eliminate un-needed words; and structure and combine sentences and paragraphs to create clear and persuasive documents, letters, and other types of written communication.

Preface xi

Chapter 1
Introduction: General Principles of Writing and Editing 1
Chapter Goals 1
The Three Stages of Writing 2
The Pre-writing Stage 2
The Editing Stage 5
A Holistic Approach to Writing 7
Retrieval Exercises 10
Conclusion 10

Chapter 2
Active and Passive Sentences and Writing with Verbs 11
Chapter Goals 11
Use the Active Voice 12
Write with Verbs 18
Don’t Overuse the Verbs “To Be” or “To Have” 23
Avoid Complex Verb Constructions 25

Chapter 3
Editing for Wordiness 29
Chapter Goals 29
Edit Wordy Expressions 29
Eliminate Unnecessary Repetitions 37
Eliminate “There” or “It” Constructions 40
Eliminate Long Descriptive Phrases 42
Eliminate Wordy Negative Expressions 44
Shorten Introductory Phrases 46
Conclusion 49

Chapter 4
Emphasis, Clarity, and Specificity 51
Chapter Goals 51
Emphasis 51
Make Lists Clear 59
Avoid Clichés and Legal Jargon 61
Be Specific 64
Conclusion 73

Chapter 5
Combining Sentences and Editing Paragraphs 75
Chapter Goals 75
Recognizing Sentence Patterns and Combining
Sentences 76
Eliminate Redundant Sentences 89
Don’t Tread Water 90
Paragraph Editing Exercises 92
Do Not Overuse Particular Words within a Paragraph 95
Avoid Abrupt Verb Tense Changes 98
Conclusion 101

Chapter 6
Organizing Paragraphs and Creating Coherence 103
Chapter Goals 103
Introduction 103
Paragraph Unity 105
Organizing Paragraphs 112
Creating Coherence and Flow 119
Conclusion 127

Chapter 7
The Small-Scale Paradigm 129
Chapter Goals 129
Small-Scale Paradigm Defined 129
Small-Scale Paradigm Outline 130
Conclusion 130
Law 131
Application 133
Small-Scale Paradigm and Paragraphing Outline 138
More Complex Paradigm Outline 139
Finding Problems in the Small-Scale Paradigm 141
Counterargument and the Small-Scale Paradigm 149
Conclusion 151

Chapter 8
Large- and Medium-Scale Organization 153
Chapter Goals 153
Organization of a Discussion or Argument Section 154
Example: Negligence 155
Example: Intentional Infliction of Emotional Harm 155
Example: Intentional Infliction of Emotional Harm 156
Example: Fair Use Statute (Copyright) 157
Example: Fair Use 159
Articulating the Organization 160
Introduction 160
Headings and Subheadings 163
Thesis Paragraphs 166
Closure 168
Conclusion 169
Bringing It Together 170
Other Types of Medium- and Large-Scale Organization 172
Creating Continuity and Flow Between Paragraphs,
Subsections, and Sections 176

Chapter 9
Review 181
The Keys to Clear Legal Writing 181
Wrap Up 201

Glossary

(Scott Fruehwald)

Professional Identity in the Real World: W. Bradley Wendel, The Good Lawyers of January 6

W. Bradley Wendel (Cornell), The Good Lawyers of January 6.

This important new article demonstrates the importance of professional identity formation in the real world--the good and bad lawyers of January 6.  Does zealous representation of a client mean a lawyer can manipulate the legal rules to satisfy the desires of the client, no matter what harm that representation does, or are there considerations beyond the written ethical rules to society and the legal system?

Abstract

Much of the response by the community of legal ethics and professional responsibility scholars to the 2020 presidential election has been focused on the wrongs committed by lawyers like John Eastman, Jeffrey Clark, and Kenneth Chesebro, who created the alternate elector scheme to throw the decision regarding the election to the House of Representatives. Yet there was a group of lawyers, that I will refer to as the good lawyers of January 6, who forcefully and unequivocally opposed this plan, refused to cooperate in its execution, advised Vice President Mike Pence that it was not legally supportable, and in some cases threatened to resign in protest if President Trump went forward with it. These lawyers are, almost without exception, card-carrying movement conservatives, with pedigrees including clerkships for conservative Supreme Court Justices, membership in the Federalist Society, and service in prior Republican administrations. They include Greg Jacob, counsel to Vice President Pence; White House Counsel Pat Cipollone; White House Senior Advisor Eric Hershmann; retired federal judge J. Michael Luttig; Acting Attorney General Jeffrey Rosen; and Deputy Attorney General Richard Donoghue. 

As a normative legal ethics theorist I am interested in whether there a coherent and attractive ideal or set of principles of ethical conduct by lawyers that would align with the refusal of these lawyers to advice or assist in the overthrow of the election. The answer to this question may inform the way we regulate lawyers and seek to educate and inspire law students to promote the highest ideals of the profession. 

 Granting that this is somewhat speculative, my hypothesis is that a commitment to the rule of law is central to the professional identity of the lawyers who refused to lend their assistance to Trump’s “Stop the Steal” efforts. Of course, each of these lawyers may have acted for his own unique reasons, but the normative commitment shared by all of them is fidelity to the rule of law. The concept of the rule of law is, of course, a contested one in legal philosophy. Debates continue over matters such as formal or substantive definitions of the rule of law, the relationship between democracy and the rule of law, the problem of legal injustice, and whether a state that purports to respect the ideal of the rule of law must also respect certain substantive human rights.  However, there may be sufficient agreement on key features of the rule of law as it bears on the ethical obligations and professional identity of lawyers. The actions of the good lawyers of January 6 serve as a kind of ostensive definition of the ideal of the rule of law as a principle of ethical lawyering. The basis for these lawyers’ advice to Vice President Pence was a judgment that the constitution and federal election law, properly interpreted, simply did not support the position urged by Eastman, Clark, and Chesebro.

(Scott Fruehwald)

Bringing Legal Education Reform Into the First Year: A New Type of Torts Text

Bringing Legal Education Reform Into the First Year: A New Type of Torts Text by Scott Fruehwald.

Abstract

Legal education reform has reached the first year of law school. Reform of the first year of law school is vital because it lays the foundation for the second and third years, as well as legal practice. Of course, changes to the first year must be done properly, following the latest research in how students learn. You can’t just add a few skills experiences to the first year and hope that will work. The first year must start with the basics so that students are ready to solve more advanced problems. In other words, the first year needs to emphasis the legal reasoning process, how it is applied, and simple problem solving.

An important part of reforming the first year is to adopt text books that have been written with the new purpose of the first year in mind and that are based on general learning theory. This article discusses the lessons I learned about writing texts for first-year students from writing an experiential torts text, A Companion to Torts: Think Like a Torts Lawyer (2015). I believe that the keys to writing a first-year text are to 1) start the students out slowly and explicitly, 2) break legal reasoning (thinking like a lawyer) into its essential parts (deductive reasoning, reasoning by analogy, distinguishing, synthesis, and policy-based reasoning) and have students do exercises in each of these types of legal reasoning, 3) teach students how to apply law to facts, and 4) have the students solve increasingly harder problems using these skills.

The first half of this paper will present the theoretical basis for the exercises I used in my torts text. Part II will discuss the neurobiology of learning, which must be the foundation for any effective approach to education. Part III will examine the effectiveness of particular learning techniques in relation to the neurobiology of learning. Part IV will lay out “Bloom’s Taxonomy,” a description of the six stages of cognitive learning. The second half of this paper will then present how I wrote my torts text, based on the theory of the first half. Part V will discuss how to organize the text. Part VI will give the types of exercises that should be included in such a book. These exercises comprise retrieval exercises, issue-spotting exercises, legal reasoning exercises on rule-based reasoning, analogical reasoning, distinguishing cases, rule synthesis, and policy-based reasoning, reflection exercises, metacognitive exercises, professionalism and professional identity exercises, and extended problem-solving exercises.

(ESF)

Value-Centered Lawyering: Reshaping the Law School Curriculum to Promote Well-Being, Quality Client Representation, and a Thriving Legal Field

Here is a wonderful new paper on professional identity and well-being:

Value-Centered Lawyering: Reshaping the Law School Curriculum to Promote Well-Being, Quality Client Representation, and a Thriving Legal Field by Katya S. Cronin.

Abstract

"For three long and harrowing years in law school, students learn to think like lawyers, to put their clients first, to interpret the law as it stands, to deftly advocate for positions they do not believe in, and to strive for successful and prestigious careers. These lessons help them develop analytical and advocacy skills, creativity and perseverance, a strong work ethic, and ambition. But there is a darker side to these learning objectives. What law students often take away from their time in law school is that their own personal beliefs, values, and experiences are irrelevant to the practice of law. They quickly learn that they must serve clients and employers, however personally distasteful or damaging it may be to them. And they begin to measure their worth and success by the yardsticks of prestige and money. Hearing these consistent albeit subliminal messages, law students frequently disassociate from the expectations that their future careers should reflect their inner selves, and they soon find themselves trapped in jobs they consider morally taxing or meaningless. When faced with such recurring conflicts between their work obligations and personal values, or with an overarching feeling of professional meaninglessness, most lawyers experience chronic cognitive dissonance, turn to alcohol or controlled substances for comfort, or develop anxiety, depression, and a host of other emotional, mental, and physical ailments. They lose interest in their work, perform worse, and experience burnout, thus jeopardizing not only their own well-being, but also client outcomes and the stability of the legal field in the long run.

 

Tragically, such scenarios are the norm, not the exception. Something needs to change. This essay explores what and how in three parts. Part I examines the symptoms of an ailing legal profession. Part  II traces the root cause of lawyer unhappiness and aimlessness to the law school curriculum and its shortcomings in supporting law students’ and lawyers’ burgeoning professional identities. This section challenges the choice to de-emphasize personal values in the classroom, the unquestioning and unqualified insistence on client- centered lawyering, and the system of external rewards and validation as the predominant law school narratives. Finally, Part III argues that, alongside teaching students to think like lawyers, to serve their clients, and to work hard, we also need to teach them how to fulfill a paramount duty to themselves—to choose careers, job opportunities, and clients aligned with their values and sense of purpose. This section proposes simple modifications to the legal curriculum that would promote frequent value-focused self-reflection and reinforce the perception that lawyers are not merely instruments of client service, but people with unique backgrounds, experiences, and personal values that can and should factor in building their professional identities."

 

(Scott Fruehwald)

 

Beyond "Hard" Skills: Teaching Outward-and Inward-Facing Character-Based Skills to 1Ls in Light of ABA Standard 303 (B)(3)'s Professional Identity

Here is an excellent new article on professional identity teaching:

Beyond "Hard" Skills: Teaching Outward-and Inward-Facing Character-Based Skills to 1Ls in Light of ABA Standard 303 (B)(3)'s Professional Identity by Marni Goldstein Caputo & Kathleen Luz.

"In this article, we share some ways in which we have adjusted our teaching to comply with Standard 303(b)(3) by addressing professional identity formation through the vehicles of outward-facing and inward-facing character-based skills. We believe that if law students do not intentionally start exploring their professional identities as soon as they step foot into law school, they run the risk of believing that legal education and practice are somehow separate from their inner, personal identities as lawyers when, of course, they are, and ought to be, enmeshed. By injecting skills into the 1L curriculum that force both the development and exploration of professional identity, we seek to avoid this type of fragmentation. We further believe that both inward-facing and outward facing skills are critical to helping students navigate the choices they must make as practicing attorneys. By introducing students to these skills early in their law school career, we hope we are helping to create thoughtful, empathetic, purposeful, and well-balanced lawyers, better equipped to represent their clients and thus, concurrently, providing them opportunities to consider their professional identities as they develop these skills and forecast how they might be used in practice."

(Scott Fruehwald)

Developing Your Professional Identity: Creating Your Inner Lawyer (2015)

Incredible Idea for Self-Regulated Learning Exercise in Legal Writing Class

I stress the importance of developing self-regulated learning in my legal education books. If you can teach students how to learn on their own, they will become life-long learners.

 

Susan Tanner and Roderick have come up with an incredible idea for self-regulated learning in legal writing class: The Legal Writing Manual: Self-Regulated Learning for First-Year Law Students, "a capstone project in her first-year legal writing course, which tasks students with instructing others in processes and practices for composing legal memoranda and appellate briefs." (abstract here) "The experience of articulating instructions for legal writing encourages students to self-regulate their learning by re-thinking knowledge and practices for legal writing." I look forward to seeing the final article!

 

(Scott Fruehwald)

Professional Identity Formation and the NextGen Bar Open Opportunities for Law Student and Law School Success by Neil W. Hamilton

Professor Neil W. Hamilton has written an important new article on professional identity formation and the NextGen Bar.

Professional Identity Formation and the NextGen Bar Open Opportunities for Law Student and Law School Success.

Abstract

All law faculty, staff, and students want students and graduates to be successful with respect to: (1) academic performance; (2) bar passage; (3) meaningful post-graduation employment; and (4) excellent service to clients and the legal system.  Both the 2022 changes to ABA accreditation Standard 303 and the ongoing implementation of the NextGen Bar starting in five states in 2026 and ten more states in 2027 open substantial opportunities for law students and law schools to achieve more success at these four goals. 

 

The 2022 revision to accreditation Standard 303 requires that each law school must provide substantial opportunities each year for students to explore the core values of the profession that are foundational to successful legal practice.  The National Conference of Bar Examiners and many state supreme courts, based on empirical evidence, are now moving to the NextGen Bar that encompasses a broader range of skills necessary for newly licensed lawyers successfully to practice law than the current bar examination. 

 

These two changes are asking law faculty and staff to think about legal education in two fundamentally different ways to help students achieve greater success at the four goals above. The first fundamental change is that the organized bar through accreditation and the state supreme courts through the bar examination are signalling that law schools must give more attention (1) to each student's reflective exploration of the professional values foundational to successful legal practice, and (2) development of a wider range of  foundational lawyering skills beyond the thinking like a lawyer skills including client counseling, client relationship, negotiation and dispute resolution, and investigation skills.  

 

The second fundamental change is that an effective curriculum to foster each student's growth toward later stages of development regarding both exploration of the professional values foundational to successful legal practice and the four new foundational NextGen Bar skills will happen principally together in authentic professional experiences (that are or mimic actual professional work) combined with coaching, feedback, guided reflection, and an action plan for the student to go to the next level on a skill.  The thinking like a lawyer curriculum and the authentic professional experiences curriculum must be coordinated to foster each student's growth step by step towards being a newly licensed lawyer. 

 

(Scott Fruehwald) 

20 principles from psychology for teaching and learning of students

Here is a helpful list of psychological principles for teaching and learning:

 

Principle 1. Students’ beliefs or perceptions about intelligence and ability affect their cognitive functioning and learning.

Principle 2. What students already know affects their learning.

Principle 3. Students’ cognitive development and learning are not limited by general stages of development.

Principle 4. Learning is based on context, so generalizing learning to new contexts is not spontaneous but instead needs to be facilitated.

Principle 5. Acquiring long-term knowledge and skill is largely dependent on practice.

Principle 6. Clear, explanatory, and timely feedback to students is important for learning.

Principle 7. Students’ self-regulation assists learning, and self-regulatory skills can be taught.

Principle 8. Student creativity can be fostered.

Principle 9. Students tend to enjoy learning and perform better when they are more intrinsically than extrinsically motivated to achieve.

Principle 10. Students persist in the face of challenging tasks and process information more deeply when they adopt mastery goals rather than performance goals.

Principle 11. Teachers’ expectations about their students affect students’ opportunities to learn, their motivation, and their learning outcomes.

Principle 12. Setting goals that are short term (proximal), specific, and moderately challenging enhances motivation more than establishing goals that are long term (distal), general, and overly challenging.

Principle 13. Learning is situated within multiple social contexts.

Principle 14. Interpersonal relationships and communication are critical to both the teaching– learning process and the social-emotional development of students.

Principle 15. Emotional well-being influences educational performance, learning, and development.

Principle 16. Expectations for classroom conduct and social interaction are learned and can be taught using proven principles of behavior and effective classroom instruction.

Principle 17. Effective classroom management is based on (a) setting and communicating high expectations, (b) consistently nurturing positive relationships, and (c) providing a high level of student support.

Principle 18. Formative and summative assessments are both important and useful but require different approaches and interpretations.

Principle 19. Students’ skills, knowledge, and abilities are best measured with assessment processes grounded in psychological science with well-defined standards for quality and fairness.

Principle 20. Making sense of assessment data depends on clear, appropriate, and fair interpretation.

 

(From TOP 20 PRINCIPLES FROM PSYCHOLOGY FOR PreK–12 TEACHING AND LEARNING Coalition for Psychology in Schools and Education)

 

I use these principles, along with many other learning principles, in my book How To Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students (2018).

 

(Scott Fruehwald)

 

Improving First-Year Doctrinal Classes

While legal scholars have written a great deal on improving legal education by adding experiential classes to the second and third years of law school, it is equally as important that law professors make changes in how they teach first-year doctrinal classes. The Langdellian approach to teaching was developed in the nineteenth century, and we have learned a great deal about effective teaching since then. Moreover, law students today are vastly different than the ones Langdell faced in his classroom.

First, professors should not abandon the Socratic Method; it remains a very effective method of teaching students doctrine and “how to think like a lawyer.” However, professors should add active teaching approaches to their repertoire. One active approach is to sometimes use a flipped classroom, in which students learn the material from lectures posted online, and class time is devoted to doing problem solving exercises.

Professors need to add problem solving exercises [see below] to all first-year classes. Students need to not only know the law; they must be able to apply the law to facts. I would suggest that professors give a major problem at the end of each unit, with a problem at least once a week. Alternatives could include several short problems in each class, or short analytical papers every couple of weeks. Professors should also do mini skills exercises in class to develop techniques like rule-based reasoning (deductive reasoning), analogical reasoning, distinguishing cases, synthesis, and policy-based reasoning. For example, studies have shown that second- and third-year students are generally weak at synthesizing cases. Legal publishers have recently started publishing textbooks that law professors can use as sources for exercises. Also, professors could have students identify the types of reasoning a judge is using when they discuss cases in class.

Professors should assign short drafting assignments in first-year classes. For example, students could draft complaints, written discovery, and other pleadings in Civil Procedure. Similarly, students could write contract clauses in Contracts. Students will understand contracts principles much better if they have experience drafting contracts clauses.

First-year professors also need to help law students develop their metacognitive skills—thinking about thinking. Professors can use metacognitive questions to help students be conscious about how they reason, think about their problem solving strategies, and even improve their study habits. Examples of metacognitive questions include: 1) how do you read a case?, 2) is your case reading method the most effective it can be?, 3) will the strategy you used to solve this problem work for the other problem?, and 4) will the study methods you used in undergraduate school be effective in law school?.

Finally, law students need detailed formative assessment. Students need to know as soon as possible what they are doing wrong so that they don’t continue the same mistakes. Also, studies have shown that students retain more with frequent formative assessment. Such assessment can include pop quizzes, short papers, problem solving exercises, and self-formative assessment from texts.

Here is suggestion for teaching a first-year torts class: Have the students read several cases on false imprisonment. Before class, they should synthesize a test for false imprisonment in writing. In class, professors should help the students learn false-imprisonment doctrine, using the Socratic Method or lecture. Then, work through several problems in class. Finally, have the students do a short paper in which they must solve a false-imprisonment problem.

Education researchers have uncovered a new world of effective educational approaches. First-year professors need to use these techniques to better prepare students for the second and third years of law school and to turn out better lawyers.

Scott Fruehwald

Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals: Fruehwald, E. Scott: 9798668582976: Amazon.com: Books

A Companion to Torts: Learning to Think Like a Torts Lawyer by Doing Exercises: Fruehwald, E. Scott: 9798392955442: Amazon.com: Books

 

 

An Easy Way to Comply with ABA Standard 208

On February 5, 2024, the ABA's House of Delegates adopted Standard 208, which requires that law schools adopt, publish, and adhere to academic freedom and free expression policies, afford due process to those accused of violating academic freedom policies, and proscribe disruptive conduct that hinders free expression.  Law schools are now studying how to satisfy this standard.

This is an easy way to comply with Standard 208: adopt the Chicago Principles.  (here)  110 Universities and colleges have adopted the Chicago Principles.  (here)

(Scott Fruehwald)

Chicago Principles:

Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the
University. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas.

In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even
loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

New Law Teaching Journal: The Journal of Law Teaching and Learning

The Institute for Law Teaching and Learning has begun publishing a journal on legal education:

The Journal Of Law Teaching and Learning.

"The Journal is a peer-edited publication dedicated to high-quality articles designed to enhance law teaching. The Journal has an emphasis on full length scholarly articles but will also publish quality essays, books reviews, and other shorter form scholarly works. The Journal staff and Editorial Board of nationally recognized legal pedagogy scholars conduct selection, edits, and peer review of all publications."

Contact

Michael T. Colatrella Jr., Professor of Law, University of the Pacific, McGeorge School of Law, Editor-in-Chief, [email protected]

Emily Grant, Associate Dean for Academic Affairs and Professor of Law, Washburn University School of Law, Managing Editor, [email protected]

Lindsey P. Gustafson, Associate Dean for Academic Affairs & Arkansas Bar Foundation Professor of Law, UA Little Rock William H. Bowen School of Law, Managing Editor, [email protected]

(Scott Fruehwald)

Torts Exercises for Law Students

A Companion to Torts: Learning to Think Like a Torts Lawyer by Doing Exercises by E. Scott Fruehwald.

This book takes a revolutionary approach to learning torts law: its goal is to teach law students to think like torts lawyers. Thinking like a lawyer means solving a problem to produce a legal solution. This process involves using several types of reasoning in combination, including synthesis, rule-based reasoning, analogical reasoning, distinguishing cases, policy-based reasoning, and creativity. A torts lawyer uses these reasoning methods to solve torts problems. This book includes a variety of torts exercises on the different types of legal reasoning to achieve the goal of teaching students to think like torts lawyers.

 

This book is a supplement to torts casebooks and textbooks. Its main audience is first-year law students who are taking torts. It may be required by a professor, or students may use it as a supplement to the class to improve their torts skills and general legal reasoning skills. This book will also be useful for incoming law students who want to develop their torts and legal reasoning skills before they attend law school. Law school begins quickly on the first day, and it is better to be ahead than behind. Finally, this book will also help law graduates who are preparing for the bar, academic support staff who want to help students improve their legal reasoning skills, and practitioners who want to refine their legal reasoning skills.

 

(Scott Fruehwald)

 

 

 

 

An Empirical Study of the Relationship Between Metacognitive Skills, Performance in a Bar Prep Course and Bar Passage

An Empirical Study of the Relationship Between Metacognitive Skills, Performance in a Bar Prep Course and Bar Passage by Jennifer A. Gundlach & Jessica R. Santangelo.

Abstract

This article builds on our prior research about metacognition and its importance for law students’ learning. We hypothesized that given our past findings about the relationship between metacognition and academic performance during the first year of law school, it was possible that metacognition might also play an important role in success with a third-year bar preparation course and/or on the bar exam.

Our current study documents law students’ metacognitive skills during a final-semester bar prep course and examines the relationship between those students’ metacognitive skills and performance in the course and bar passage. We found that students are capable of gaining metacognitive knowledge and regulation skills during law school and even as late as the last semester of law school. We also found evidence that instruction and prompts to practice metacognitive regulation during the first year of law school had a long-term impact on students’ continued use of those skills in their final semester. This evidence is important because we also found, as we have in prior studies, that students’ success in a final-semester 3L bar preparation course, as well as their cumulative law school GPA, is associated with their level of metacognitive knowledge and regulation skills. While we did not find evidence of a direct relationship between metacognitive skills and bar passage, there was a relationship between bar passage and both course performance and cumulative GPA. Accordingly, we contend that metacognitive skills are an indirect support of bar passage given that they contribute to academic success, which in turn supports success on the bar exam. We conclude that, based on the relationship between metacognitive skills, academic success in law school, and bar passage, law schools have an ethical obligation to support law faculty in explicitly and intentionally incorporating metacognitive skills instruction into the law curriculum.

(Scott Fruehwald)

Raising the Bar: The NextGen Bar Exam and Contract Drafting by Karen J. Sneddon & Susan Chesler

The NextGen Bar Exam will require law schools to teach students differently throughout the curriculum.  This article discusses the NextGen Bar and contract drafting:

Raising the Bar: The NextGen Bar Exam and Contract Drafting by Karen J. Sneddon & Susan Chesler.

Abstract

Set to debut in July 2026, the NextGen Bar Exam will test a broad range of foundational lawyering skills needed in today’s practice of law, including contract interpretation, drafting, and revising. According to the National Conference of Bar Examiners (NCBE), this exam is designed to balance the skills and knowledge needed in litigation and transactional legal practice. More specifically, the foundational skills that will be tested include drafting and revising contract provisions consistent with the facts, the law, and the client’s objectives, interests, and constraints. The NCBE has indicated that the examinees’ knowledge of the doctrinal subject matter topics, like Contracts, will be tested using these, and other, foundational skills. Bar takers will therefore be required to perform these lawyering skills as a way of proving their knowledge on topics such as contract formation, contract modification, interpretation, breach, and remedies. For the first time, in order to succeed on the bar exam, every law student will need to know how to draft and revise contract provisions.

This article discusses and dissects the content scope for the NextGen Bar Exam, outlining the areas of legal knowledge, practical skills, and abilities that will be covered. As this overview illustrates, law schools can no longer ignore contract drafting skills or relegate the teaching of contract drafting to an elective, upper-level legal writing course of 20 students or less. To facilitate incorporation of contract drafting skills into a range of courses, this article presents examples of a wide variety of in-class and out-of-class exercises and assignments along with possible assessment methods that law professors can integrate into their existing courses, whether that course is a first-year required course, an upper-level doctrinal subject-matter course, a skills course, or a clinic. This article will then present an in-depth analysis of simulated NextGen-style prompts and questions based upon a single hypothetical that allows students to complete a number of client-centered lawyering tasks. Transactional skills are finally getting the recognition they deserve. This article provides concrete guidance to ensure that law schools – and law students - are ready for it.

(Scott Fruehwald)

New Book: Brain Science for Lawyers, Judges, and Policymakers

Here is an important new book on the use of brain science in the law:

Brain Science for Lawyers, Judges, and Policymakers by Owen D. Jones, Jeffrey D. Schall, Francis X. Shen, Morris B. Hoffman, Anthony D. Wagner.

Brain science in the form of neuroscientific evidence now appears frequently in courtrooms and policy discussions alike. Many legal issues are at stake, such as how to separate the best uses of brain science information from those that are potentially biasing or misleading. It is crucial to evaluate brain science evidence in light of relevant legal standards (such as the Daubert and Frye Rules).

Brain Science for Lawyers, Judges, and Policymakers responds to this rapidly changing legal landscape, providing a user-friendly introduction to the fundamentals of neuroscience for lawyers, advocates, judges, legal academics, and policymakers. It features detailed but clear illustrations, as well as a comprehensive and accessible overview of developments in legally relevant neuroscience. Readers will learn brain science terms, how to understand and discuss brain structure and function in legally relevant contexts, and how to avoid over- or under-interpreting neuroscientific evidence.

The book begins with a survey of the kinds of litigation, legislation, and regulation where neuroscience is currently being used. It provides accessible descriptions of basic brain anatomy and brain function as well as an overview of how modern technologies can reveal the brain structures and brain functions of individuals. It finishes with cautions and limitations, including timely and thought-provoking observations about where the future of neurolaw might lead. Throughout, the authors offer clear and concise guidance on understanding both the promise and the limitations of using brain science in law and policymaking.

(Scott Fruehwald)

Should We End the Use of the Bluebook?

An Old-Fashioned Bluebook Burning by Paul A. Gowder.

Abstract

This essay argues for an end to law's infamously Byzantine and bloated citation manual, the Bluebook. The very features that make the Bluebook distinctive when compared to citation systems in other academic fields are also those that inflict vast amounts of unnecessary if not downright harmful labor on its users.

The root of the problem is its obsolescence: the Bluebook was designed for a system in which legal scholarship was primarily consumed in print and for material where the doctrinal epistemology of authority predominated.

Today, legal scholarship is primarily consumed electronically, and it largely shares an epistemology of credence with other scholarly disciplines. (Nor are its hundreds of pages of rules particularly useful for practicing lawyers and judges, who sensibly disregard most of it anyway.)

At a minimum, the signals, typographical rules, abbreviations, and cross-references need to be put out of their misery; when those are gone what is left would be practically indistinguishable from the sensible citation systems of other fields, as it should be. Also, we should automate as much as possible---and that turns out to be quite a lot.

(Scott Fruehwald)

A New Parlor Is Open: Legal Writing Faculty Must Develop Scholarship on Generative AI And Legal Writing

Here is an important new article on AI and legal scholarship by Professor Kirsten Davis:

 

A New Parlor Is Open: Legal Writing Faculty Must Develop Scholarship on Generative AI And Legal Writing

 

"As legal communication experts, legal writing faculty are well-situated to be frequent and assertive speakers in this conversation and to author scholarship that will substantially alter and define the discipline of legal writing for many years to come."

 

"[M]y goal in inviting legal writing scholars to develop the conversation about the impact of generative AI on legal writing is to establish a discursive space where scholars can explore the issues that are ripe and relevant for exploration."

 

"The training and interests of legal writing faculty are well-suited for this research."

 

"Generative AI represents the kind of revolutionary innovation that marks the beginning of a paradigm shift because it is destined to change the thinking about (at least) some of the legal writing field’s fundamental concepts and practices."

 

(Scott Fruehwald)

The Rule of Law, The Lawyer's Role as a Public Citizen, and Professional Identity: How Fostering the Development of Professional Identity Can Help Law Schools Address the Crisis Facing American Democracy by Kendall Kerew

The Rule of Law, The Lawyer's Role as a Public Citizen, and Professional Identity: How Fostering the Development of Professional Identity Can Help Law Schools Address the Crisis Facing American Democracy by Kendall Kerew.

American democracy is in crisis. The January 6, 2021, attack on the U.S. Capitol must serve as a renewed wake-up call for the legal profession. We can no longer keep our heads down, focused solely or even primarily on serving our clients, without being mindful that what we do every day as lawyers starts and ends with our duty to uphold the rule of law and our system of justice. We must acknowledge that lawyers are the ones who have put democracy at risk. Lawyers are the ones who, in their role as zealous advocates, attempted to overturn the 2020 election without a legal basis for doing so. In California, former Professor John Eastman is facing disbarment for multiple counts of seeking to mislead the court and moral turpitude (misrepresentation), and for one count of “fail[ure] to support the . . . law[] of the United States.” In her disciplinary decision, Judge Yvette D. Roland stated, “[v]igorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law.”

(Scott Fruehwald)