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)

Saturday, February 27, 2021

Comparative Legal Rhetoric by Lucy A. Jewel

Here is an excellent new article on rhetoric by Lucy Jewel: Comparative Legal Rhetoric.

Abstract

This paper theorizes a new discipline, comparative legal rhetoric, which can accomplish two important goals. First, in a society broken down by intractable polarization and win/lose dichotomies, comparative legal rhetoric identifies alternative, nontraditional and non-Western ways to communicate and persuade. How we talk is deeply connected to how we see the world. If we take a break from the win/lose argument structure that defines Western legal communication, we can uncover opportunities for understanding and healing. Second, a study of comparative legal rhetoric can generate cross-cultural understanding. This new discipline contains a trove of knowledge about how persuasion works in different cultures. Comparative legal rhetoric might also identify universal modes of persuasion, which would be useful knowledge for any law advocate.

In Part One of the paper, I briefly explain why the comparative study of legal rhetoric is important and how traditional legal rhetoric often fails to achieve justice and equality. In Part Two, I provide a foundational introduction to the feeder disciplines that inform the new discipline of comparative legal rhetoric––legal rhetoric, comparative law, comparative rhetoric, and comparative cognitive psychology. Part Three explores lessons that comparative legal rhetoric can teach, studying rhetorical practices located outside of mainstream U.S. culture, including Navajo legal rhetoric, Quaker rhetoric, restorative rhetoric, and citizen’s rhetoric. Studying and applying these new communication processes can help solve disputes in a way that fosters more empathy, equity, and justice.

(Scott Fruehwald)

 

February 27, 2021 | Permalink | Comments (0)

Saturday, February 20, 2021

Quote of the Week

The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.

William Arthur Ward

(ESF)

February 20, 2021 | Permalink | Comments (0)

Thursday, January 28, 2021

New Book: Why President Trump Wouldn’t Concede, Why Robinson Cano Took PEDs, and How Advertisers and Social Media Manipulate Us: Cognitive Biases

E. Scott Fruehwald, New Book: Why President Trump Wouldn’t Concede, Why Robinson Cano Took PEDs, and How Advertisers and Social Media Manipulate Us: Cognitive Biases.

Why wouldn't President Trump concede the 2020 presidential election? Why did Robinson Cano and Lance Armstrong take peds? Why doesn't sexual harassment training work? How do advertisers and social media manipulate the public? The answer to all these questions in cognitive biases.

Brain biases clog up our thinking and allow us to be manipulated by others. The human thinking process is imperfect. The brain evolved. Parts of our brains today are remnants of the brains our early ancestors had, brains which had developed to survive under very different conditions from today. These remnants produce cognitive biases–ways of thinking that are different from reality. Individuals need to overcome their cognitive biases in order to think more clearly and avoid being manipulated by others. I have written this book for anyone who wants to understand cognitive biases and begin to overcome them.

Note: Although this book has a different title, it is basically a second edition of Overcoming Cognitive Biases: Thinking More Clearly and Avoiding Manipulation by Others (2017). I have changed the title because I have significantly changed the book’s emphasis and organization. I have centered this version around stories concerning cognitive biases, and how they make people act in strange and stupid ways. I believe that this new emphasis will better help the reader recognize and overcome cognitive biases, as well as being more entertaining. I have added a great deal of new material to this book (about 40%) and deleted material from the previous version.

(Scott Fruehwald)

January 28, 2021 | Permalink | Comments (0)

Thursday, January 7, 2021

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

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

 

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

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

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

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

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

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

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

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

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

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

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

[1] See, e.g., Kirschner, Stop Propagating the Learning Styles Myth, Computers and Education 106 (2017) 166-171; American Psychological Association, Belief in Learning Styles Myth May Be Detrimental (May 30, 2019), available at: Belief in learning styles myth may be detrimental (apa.org); Newton, P., The Learning Styles Myth is Thriving in Higher Education, Front. Psychol., 15 December 2015 | https://doi.org/10.3389/fpsyg.2015.01908. This is just a small sample of the many empirical studies suggesting that learning style theory is meritless. Instead, the authors critique a single article to support their contention that students possess different learning styles. See Deborah Borman & Catherine Haras, Something Borrowed: Interdisciplinary Strategies for Legal Education, 68 J. LEGAL EDUC. 357 (2019).

[2] See Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807; see also Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Bot (Aug. 2019), available at: https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/.

[3] Id. (internal citation omitted).

(Scott Fruehwald)

January 7, 2021 | Permalink | Comments (0)

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

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

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

Abstract

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

(Scott Fruehwald)

January 7, 2021 | Permalink | Comments (0)

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

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

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

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

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

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

(Scott Fruehwald)

January 7, 2021 | Permalink | Comments (0)

Monday, January 4, 2021

The Disparate Treatment of Clinical Law Faculty by Robert Kuehn

The Disparate Treatment of Clinical Law Faculty by Robert Kuehn.

Excerpt:

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

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

(Scott Fruehwald)

January 4, 2021 | Permalink | Comments (0)

Tuesday, December 29, 2020

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

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

Abstract

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

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

(Scott Fruehwald)

December 29, 2020 | Permalink | Comments (0)

Sunday, December 13, 2020

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

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

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

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

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

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

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

(Scott Fruehwald)

December 13, 2020 | Permalink | Comments (0)

Friday, December 11, 2020

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

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

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

Abstract

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

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

(Scott Fruehwald)

December 11, 2020 | Permalink | Comments (0)