Saturday, February 22, 2020

Critical Thinking and the Law School Socratic Method

I have received a couple of emails asking how I can claim in my critical thinking book (here) that law schools do not systematically teach critical thinking considering that law schools use the Socratic method.  The problem is that the Socratic method, as it is currently used in law schools, teaches deriving doctrine from cases and understanding that doctrine, not critical thinking.  For example, Professor Deborah Merritt has argued:

"The case method is legal education’s signature pedagogy. Law professors point to the method with pride, and that pride has considerable foundation. In theory, the case method accomplishes at least five pedagogic goals:

  1. It demonstrates that law is not static; law evolves through judicial interpretation. On some topics, students also see how the law evolves through legislation and administrative regulations.
  2. It teaches students how to read and synthesize judicial interpretations. Depending on the subject, students also learn how to read statutes and harmonize them with judicial opinions.
  3. It prepares students to advocate for changes in the law–primarily in the courts, but with some approaches that can be used with legislators and other decision-makers.
  4. It develops critical thinking skills (careful reading, analogical reasoning, identification of patterns and distinctions) that are transferable to many other contexts.
  5. It instructs students on the doctrinal principles discussed in the cases and accompanying statutes.

Can the case method accomplish all of these goals–especially when it is used in a large classroom with a single end-of-semester exam? I doubt that the method ever achieved as much as it claims, except perhaps for the highest achieving students in a classroom. Today, the method has been quietly subverted to accomplish primarily the fifth goal: instructing students on doctrinal principles. Law schools stake their value on teaching the other four cognitive skills listed above, but we deliver less of that learning than we believe."  (here)  Similarly, Professor Jessica Erickson has asserted, "The Socratic classroom has turned into a 'soft Socratic' space."  (here)

The other problem is that most academics don't know what critical thinking actually means; they use it in a general, vague sense.   Scholars who study critical thinking have defined what it means and what thinking processes it comprises.  Here are two good definitions: Critical thinking is “[t]he intellectually disciplined process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, and/or evaluating information gathered from, or generated by, observation, experience, reflection, reasoning, or communication, as a guide to belief and action.”  (here)  “It is . . . automatically questioning if the information presented is factual, reliable, evidence‑based, and unbiased.” (here)  Critical thinking is a set of processes, including metacognition, conceptualizing, synthesizing (constructing), asking questions, organizing, developing and evaluating alternatives, considering unintended results, planning, self-monitoring, reflection, spotting assumptions, evaluating inferences, exercising epistemic vigilance, supporting arguments with evidence, evaluation, skepticism, and self-direction.

As I show in my book, the Socratic method can be used to teach critical thinking systematically.  But as Professors Merritt and Erickson have asserted, as it is currently used in law school, it does not do this.

(Scott Fruehwald)

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February 22, 2020 | Permalink | Comments (0)

Leveraging Noncognitive Skills to Foster Bar Exam Success: An Analysis of the Efficacy of the Bar Passage Program at FIU Law

I have posted frequently on the great success that Florida International University graduates have had on the Florida bar exam.  It seems like every time the results come out they are at the top.  Now, the ABA has published a list of Law School Rankings By Bar Exam Overperformance,  and guess who came out number one nationally?  Georgia.  But FIU was number two.

Raul Ruiz, Assistant Professor of Academic Support at FIU, has posted an article on SSRN explaining some of the reasons for FIU's great success on the Florida bar exam: Leveraging Noncognitive Skills to Foster Bar Exam Success: An Analysis of the Efficacy of the Bar Passage Program at FIU Law.


"With falling bar exam passage rates, many law schools have implemented bar exam preparation programs but are still struggling to improve bar exam passage rates. The increase in law school matriculants with LSAT scores below 150 had a statistically significant negative correlation with national mean MBE scores, and with the new ABA standard 316 mandating a 75% bar passage rate, law schools are facing mounting pressure to ensure that their graduates are ready and able to pass their bar examination expeditiously or risk losing ABA accreditation.

Law schools have been frustrated by the lack of results with their internal bar exam preparation programs. They often struggle to identify why their students continue to fail the bar exam. Not much has been written about the theory, design, implementation, and evaluation of an effective law school bar exam preparation program. This paper will discuss each of those areas with the goal of helping law schools achieve an important milestone: increasing bar passage rates for their students and maintaining ABA accreditation.

This paper will discuss what has caused a decrease in bar exam scores nationwide and how the bar preparation program at the FIU College of Law has counteracted declining pass rates. The focus of the bar prep program at FIU will be discussed in detail, so other law schools may utilize those same concepts."

Congratulations to Georgia, FIU,  and the other law schools that placed at the top of the overperformance list.  Maybe someone at Georgia will write an article on how they did it.

(Scott Fruehwald)

February 22, 2020 | Permalink | Comments (0)

Monday, February 17, 2020

Communicating Explanatory Synthesis by Michael D. Murray

Communicating Explanatory Synthesis by Michael D. Murray.


The T-R-E-A-T paradigm and the doctrine of explanatory synthesis are both organizational methodologies and substantive theories designed to improve the substance of legal writing. The TREAT paradigm doctrine holds that the presentation of legal discourse in a carefully constructed order not only promotes clarity and satisfies audience expectations but also maximizes the communicative potential and persuasiveness of the substance of the material.

Explanatory synthesis (the “E” of TREAT) improves the substance of legal writing by combining precedents and revealing the factors and policies that determine the outcome of these precedents. Explanatory synthesis follows the path of inductive reasoning through exploration of the species of situations where a given legal rule has been applied to produce a concrete outcome (i.e., the cases), and derives the genera of principles of interpretation and application of the rule that can be presented in legal writing.

(Scott Fruehwald)

February 17, 2020 | Permalink | Comments (0)

Wednesday, February 12, 2020

Fate of Boise law school uncertain in light of Concordia U. closure

The fate of the recently ABA accredited Concordia University School of Law in Boise is uncertain after its parent school announced it would be closing the main campus in Portland, Oregon after 115 years. The law school's interim dean said she's been in discussions with "multiple institutions" about possibly taking over the law school but so far nothing concrete has emerged. At present, Concordia law school has about 150 students enrolled according to its website.  More details about the closure of Concordia University and the fate of the law school are available from the Idaho Business Review:

Concordia University in Portland to close; fate of downtown Boise law school unclear


Concordia University in Portland announced Monday that is shutting down its Portland campus after 115 years, though its leaders say they are in discussions to keep the School of Law in Boise operating.


In an interview with the Idaho Statesman, interim Concordia Law School Dean Latonia Haney Keith said leaders are talking with “multiple institutions” interested in taking over the law school. She said she could not publicly identify the schools.


But the University of Idaho is not among them. The U of I law school dean said he didn’t know Concordia Law’s future was in doubt until an Idaho Statesman reporter called seeking comment. The U of I operates a Boise branch of its law school in the former Ada County Courthouse.


“We have reached out to institutions that we thought have a mission alignment with us and our core values that really believe in what we’re doing here in Idaho,” Haney Keith said. “We’re hoping to be able to give more information in the next couple of weeks.”


School officials met with students to let them know about the situation before a public announcement was made at 11:15 a.m.


“We’ve asked for their patience as we work through this ,” said Keith, who has worked for the law school since 2015 and was named interim dean in August. “We will be meeting with them regularly and be as transparent as we possibly can throughout this process. But we want them to be really focused on their education.”


. . . . 

Continue reading here.



February 12, 2020 | Permalink | Comments (0)

Saturday, February 8, 2020

The Real Dangers of Cognitive Biases

I have written often, here and elsewhere, about the dangers of cognitive biases on lawyers and their clients.  Such dangers also exist in the every day world, sometimes with tragic consequences.

There is a story in the New York Post about a four-year-old boy who died from the flu when his mother ignored her physician's advice in favor of advice from an anti-vaccine group on Facebook.


"The mother of a Colorado preschooler who died from the flu ignored a doctor’s prescription and tried alternative, 'natural' methods recommended in an anti-vaccine Facebook group, according to reports.

The mother of the boy posted on a Facebook group — called “Stop Mandatory Vaccination” — that two of her four children had been diagnosed with the flu, leading a doctor to prescribe Tamiflu antiviral medication for the entire household, NBC News reports.

A third child — the woman’s 4-year-old son, who later died — had not been diagnosed with the flu at the time, but showed symptoms of a fever and had a seizure. Nevertheless, she ignored the doctor’s orders, she wrote.

'The doc prescribed tamaflu (sic) I did not pick it up,' the Facebook post read."

"Some of the suggestions she received included using breast milk, thyme and elderberry — all of which are not recommended by doctors to treat influenza. . ."

"Najee’s mother, meanwhile, told the station she feels as if she 'failed' her son."

This is a tragic story.  The mother wanted to do the best for her child.  How could she ignore her doctor's advice, instead using folk remedies from a Facebook Group?  Cognitive biases clouded her judgment.

Here are the cognitive biases that affected the parent's decision and the Facebook member's suggestions:

Confirmation bias: “The tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions.”

Optimism bias: “The tendency to be over-optimistic, overestimating favorable and pleasing outcomes.”

Ostrich effect: “Ignoring an obvious (negative) situation.”

Semmelweis reflex: “The tendency to reject new evidence that contradicts a paradigm.”

There is no simple answer to the problem of overcoming cognitive biases.  However, studies have shown that awareness of cognitive biases and other approaches can help significantly.  One other thing can help: never ignore your physician's advice.  If you don't like what your doctor is saying, go to another doctor.  But, never, never take medical advice from a group on the internet.

(Scott Fruehwald)


February 8, 2020 | Permalink | Comments (0)

Friday, February 7, 2020

How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why

Here is the table of contents to my new book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why:

Table of Contents

Preface v
1. Legal Education and Critical Thinking 1
2. Understanding Critical Thinking 13
3. The Domain-Specific Characteristics of the Law 45
4. Teaching Critical Thinking in Law School 71
5. Critical Thinking and the Socratic Method
as a Teaching`Technique in Legal Education 107
6. How to Improve Your Teaching with Critical Thinking 121
7. Teaching Critical Thinking in Legal Writing 133
8. Judges and Critical Thinking 143
9. Conclusion 157
Appendix A: Sample Socratic Dialogue 163
Appendix B: Sample Socratic Dialogue 177

(Scott Fruehwald)


February 7, 2020 | Permalink | Comments (0)

Wednesday, February 5, 2020

Registration is now open for Emory University School of Law's 7th biennial transactional legal skills conference June 5-6, 2020

The organizers of Emory's biennial transactional legal skills conference wanted our readers to know that registration for the June 5th to 6th conference is now open and the link, plus full details, are below. 



Emory’s Center for Transactional Law and Practice is delighted to announce its seventh biennial conference on the teaching of transactional law and skills.  The conference, entitled Hindsight, Insight, and Foresight:  Transactional Law and Skills Education in the 2020s,” will be held at Emory Law, beginning at 1:00 p.m. on Friday, June 5, 2020, and ending at 3:45 p.m. on Saturday, June 6, 2020.

Come together with your colleagues and friends in Atlanta to reflect upon transactional law and skills education and ponder the answers to three vital questions:


  • Where have we been?
  • What have we learned?
  • Where are we going?

Our keynote speaker – to be announced soon – will elaborate on our theme.  In addition, conference attendees will participate in a workshop to create a vision for transactional law and skills education in the 2020s (the “Vision Workshop”).  Finally, we will bestow the second Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills.  (For information about how to nominate yourself or someone else for this award, please click here.




We are accepting proposals immediately, but in no event later than 5 p.m. on Friday, March 20, 2020. 

We welcome you to present on any aspect of transactional law and skills education as long as you view it through the lens of our theme.  For example, if you present about a course, curriculum, or program, tell us how it’s worked, what you’ve learned, and how you envision it evolving over time.  Alternatively, you may want to focus on just one of the three questions.  For example, if you present a “Try-This” session, you may want to examine what you have learned from teaching the exercise a number of times – and even from preparing to teach it to your colleagues. 


We also welcome proposals that address the big picture.  Maybe you have a scheme to address the legal education system’s tendency to value litigation skills training above transactional skills training.  Perhaps you have experience moving a law school faculty and administration to give transactional law and skills education the attention it deserves.  Or maybe you believe that riding the wave of the future means teaching students particular topics or skills – such as how to be a leader or how to use technology.


Try-This Sessions.  Each Friday afternoon “Try-This Session” will be 45-minutes long and will feature one classroom activity and one individual presenter.


Panels.  Each Saturday session, except for one hour devoted to the Vision Workshop, will be approximately 90 minutes long and feature a panel presenting two or more topics grouped together for synergy. 


Please submit the proposal form electronically via the Emory Law website found here before 5 p.m. on March 20, 2020. 




As in prior years, some of the conference proceedings as well as the materials distributed by the speakers will be published in Transactions:  The Tennessee Journal of Business Law, a publication of the Clayton Center for Entrepreneurial Law of The University of Tennessee, a co-sponsor of the conference.



Both attendees and presenters must register for the Conference and pay the appropriate registration fee:  $250 (general); $200 (adjunct professor and new professor).  Note: A new professor is someone in their first three years of teaching.


The registration fee includes a pre-conference lunch beginning at 11:30 a.m., snacks, and a reception on June 5, and breakfast, lunch, and snacks on June 6. We are planning an optional Thursday evening reception (June 4) and Friday evening dinner (June 5) at an additional cost of $60 per person for the dinner.


Registration is now open for the Conference and the optional events here.



Attendees and presenters are responsible for their own travel arrangements and hotel accommodations. Special hotel rates for conference participants are available at the Emory Conference Center Hotel, less than one mile from the conference site at Emory Law. Subject to availability, rates are $159 per night. Free shuttle transportation will be provided between the Emory Conference Center Hotel and Emory Law.


To make a reservation at the special conference rate, call the Emory Conference Center Hotel at 800.933.6679 and mention “The Emory Law Transactional Conference.” Note: The hotel’s special conference rate expires at the end of the day on Thursday, May 14, 2020.  If you encounter any technical difficulties in submitting your proposal or in registering online, please contact Kelli Pittman, Program Coordinator, at or 404.727.3382.


We look forward to seeing you in June!

Sue Payne                          Katherine Koops                  Kelli Pittman

Executive Director                Assistant Director                 Program Coordinator


February 5, 2020 | Permalink | Comments (0)

Book Announcement: How to Teach Lawyers, Judges, and Law Students Critical Thinking

Today begins a new day for legal education.  It is the begininng of the systematic teaching of critical thinking in legal education.

How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why by E. Scott Fruehwald.

Critical thinking is essential for lawyers, judges, and law students. Yet law schools have never systematically taught critical thinking to their students. The main purpose of this book is to help law professors teach lawyers, judges, and law students how to become critical thinkers. It first explains critical thinking to professors, and, then, it shows how they can teach this knowledge to students. Lawyers, judges, and law students can also use this book to teach themselves critical thinking.

Chapter One introduces the reader to the need for critical thinking in the law, and it will give two methods of evaluating how critical thinking works within legal education. Chapter Two helps the reader understand the basics of critical thinking. Most scholars think that critical thinking is domain specific, so Chapter Three presents the domain of the law. Chapter Four applies critical thinking basics to law’s domain, and it shows how to teach critical thinking to lawyers, judges, and law students. Chapter Five shows how critical thinking processes can improve the use of the Socratic method in legal education. Chapter Six discusses how critical thinking can make law professors better teachers. Chapter Seven demonstrates how critical thinking can produce better legal writing professors. Chapter Eight focuses on judges and critical thinking. The final chapter brings everything together and highlights the most important aspects of teaching critical thinking to lawyers, judges, and law students. Two appendices contain sample Socratic dialogues that employ critical thinking. I have included examples, exercises, and problems on critical thinking throughout the book.

(Scott Fruehwald)

February 5, 2020 | Permalink | Comments (0)

Wednesday, January 29, 2020

Legal Writing's Harmful Psyche by Kevin Bennardo.

Here is an article that is going to be widely-debated in the legal writing community: Legal Writing's Harmful Psyche by Kevin Bennardo.


"This essay argues that many in the legal writing discipline view themselves in a way that is harmful to the discipline's success. First, the essay establishes that many legal writing professors view themselves as victims of oppression within the legal academy. Second, it relies on social psychology research to demonstrate that viewing oneself as a victim carries consequences. Groups that self-identify as victims tend to have an elevated sense of in-group solidarity and a diminished sense of personal responsibility. These attributes are both present in the legal writing community. Third, the essay demonstrates that these attributes are harmful in the context of an academic discipline. Robust internal criticism is important for the growth of an academic discipline because it allows those within the discipline to distinguish strong ideas from weak ones. As currently practiced, the elevated sense of in-group solidarity and the diminished sense of personal responsibility within the legal writing discipline result in a norm of protectionism that quells critical debate and internal disagreement to the detriment of the discipline. The essay’s conclusion suggests how the legal writing discipline can take steps to improve itself from within to alleviate the problem."

We welcome comments, but please keep them civil.

(Scott Fruehwald)

January 29, 2020 | Permalink | Comments (0)

Thursday, January 23, 2020

Quote of the Week

“[D]esigning educational experiences without an understanding of the brain [is] like designing a glove without an understanding of the human hand . . . .”

Tracey Tokuhama-Espinosa

(Scott Fruehwald)

January 23, 2020 | Permalink | Comments (0)

Monday, January 20, 2020

Say What?: A How-To Guide on Providing Formative Assessment to Law Students Through Live Critique by Amanda L. Sholtis

Say What?: A How-To Guide on Providing Formative Assessment to Law Students Through Live Critique by Amanda L. Sholtis.


The American Bar Association requires law schools to move beyond the traditional, single final exam and incorporate more assessment. One method law professors may use is live critique. Through live critique, the professor examines students’ work for the first time in front of students and reacts to it live. This article details the benefits of live critique for law students, which include enhanced learning, increased confidence, and practice-ready skills. It also describes how professors can boost the effectiveness and efficiency of their feedback by delivering it live. Finally, the article provides suggestions for professors in overcoming potential challenges and provides step-by-step guidance on how to integrate live critique into any law school course.

(Scott Fruehwald)

January 20, 2020 | Permalink | Comments (0)

How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education by Harold Anthony Lloyd

How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education by Harold Anthony Lloyd.


Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction."

How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols.

In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics.

(Scott Fruehwald)

January 20, 2020 | Permalink | Comments (0)

Saturday, January 18, 2020

Effectively Flipping the Classroom by Using Team-Based Learning by Adam Eckart

Effectively Flipping the Classroom by Using Team-Based Learning by Adam Eckart.


Fostering student engagement in class is often chief among a professor’s goals. For this reason, many professors choose to “flip” their classroom in order to deliver content outside of class and spend more time on exercises and examples in class. When students do not engage with content outside of class, however, the benefits of the flipped classroom diminish. By pairing the flipped classroom with team-based learning, a learning technique that adds a student-completed “readiness assurance” assessment to the flipped classroom model, students are increasingly prepared for class and are more engaged with the material in class. This article discusses how professors can integrate team-based learning with a flipped classroom, the complementary nature of both approaches, and what type of modules and topics may be appropriate.

(Scott Fruehwald)

January 18, 2020 | Permalink | Comments (0)

Sunday, January 12, 2020

Quote of the Week

“Any conversation about effective teaching must begin with a consideration of how students learn.” Susan A. Ambrose, How Learning Works: 7 Research-Based Principles for Smart Teaching 1 (2010)

(Scott Fruehwald)

January 12, 2020 | Permalink | Comments (0)

Wednesday, January 8, 2020

Professor Robert Kuehn on additional data refuting the false claim that students who take clinical courses hurt their chances of passing the bar

Professor Robert Kuehn (WashULaw) has a much anticipated, forthcoming article in the Journal of Legal Education (here and here) that refutes the false assertion by some that students who take clinical courses undermine their chances of passing the bar. While we await the publication of that important article, Professor Kuehn has penned a short essay noting some additional data resulting from studies done by the California bar, Texas Tech School of Law, and U. Denver School of Law that further supports the conclusions reached by his own study. Professor Kuehn's essay, reprinted below, is also available here.  

Refuting the False Trope on Clinical Courses and Bar Passage

It has been observed that “the fewer the facts, the stronger the opinion.” Until recently, this could be said about the possible influence of enrollment in clinical courses on a student’s likelihood of passing the bar examination. While there was a shortage of empirical studies on any possible relationship, there have been plenty of opinions on how taking those courses might be harmful, opinions often reflected in graduation restrictions on clinical courses and requirements for bar subject-matter courses.


But, there are now significantly more facts to refute those opinions. Two recent, large-scale studies have both found no relationship between the number of law clinic or externship courses or credits a law graduate took and her likelihood of passing the bar exam.


In a forthcoming article in the Journal of Legal Education, academic records of ten years of law school graduates of Washington University in St. Louis and Wayne State University were reviewed for any relationship between the number of law clinic, externship, or, more generally, experiential courses or credits and bar passage. After first accounting for the possible influence of law school grades on bar passage (the most significant predictor of bar success), the study found no correlation at either school between law clinic or externship enrollment and bar passage — no relationship between participation in a law clinic or externship and passage, none between the number of clinical courses and passage, none between the number of clinical credits and passage, and no evidence that students graduating with lower GPAs were disproportionately enrolling in those courses as a way to avoid doctrinal courses (another not uncommon trope). This lack of any relationship was in spite of increased enrollment in experiential courses at both schools over the ten-year period and decreased enrollment in courses teaching material tested on the bar (referred to as bar subject-matter courses).


The article notes that nationwide data on experiential course enrollment and bar passage also belie any claim the two are related. That data indicate that as enrollment in experiential courses was increasing from 2006-2016, bar passage percentages were fairly steady and that the recent decline in passage coincided with decreased, not increased, enrollment in those courses.


recent study commissioned by the California State Bar found a similar lack of relationship between law clinic and externship courses and bar exam performance. The study reviewed law school coursework and performance on three July exams for over 7,500 bar applicants from eleven California schools. It found no relationship between the number of academic credits from law clinic courses and exam performance, either across all schools or even when reviewing schools separately. Similarly, there was no relationship between the number of externship or internship credits and performance, again when examined across all schools or within schools. The broad range of entering credentials at the eleven schools, and lack of a relationship even within those schools, indicates that the results should be applicable to most law schools, including those with lower LSATs and undergraduate GPAs for entering students.


The study results from Washington University/Wayne State and the California State Bar are similar to smaller studies at Texas Tech and the University of Denver that also reported no statistically significant relationship between enrollment in a law clinic or externship course and bar passage.


The Washington University/Wayne State and California State Bar studies further revealed that opinions about the value of bar subject-matter courses should be moderated. There were small correlations at both schools between the number of bar subject courses and bar passage. But this result (explaining less than 5% of the variability in bar outcomes) was only for low performing students and additional courses showed no marginal benefit once students took the school’s average number of bar courses.


The California State Bar study focused on whether taking a specific course was related to performance on the bar exam topic taught in those courses. It found that neither attendance nor performance in courses covering any of the 13 bar-related topics was related to performance on the corresponding California bar exam or Multistate Bar Exam content covering that subject.


Studies at other schools also indicate that enrollment in bar subject-related courses do not support broad claims about the benefit of taking those courses.


It is time to put away the misinformed trope of participation in law clinic and externship courses harming a student’s chances of passing the bar exam and let the facts do the talking. Law schools should recognize and students should be told they can obtain valuable preparation for the practice of law by enrolling in clinical courses without affecting their likelihood of passing the bar exam.


- Robert Kuehn, Washington University School of Law



January 8, 2020 | Permalink | Comments (0)

Tuesday, January 7, 2020

Meta is Better by Anne E. Mullins

Here is an important article on metacognition and deep learning: Meta is Better by Anne E. Mullins.


Meta is Better, 49 N. D. L. Rev. 324 (2019), argues that a broad-based metacognitive approach to foundational legal writing courses promotes deep self-regulated student learning. Metacognition can be much more than a nice add-on to a course. Used most effectively, metacognition becomes the alpha and omega of the learning partnership. The professor explicitly teaches students about metacognition, uses metacognitive techniques in class, and adopts a metacognitive approach to the role of professor.

A tribute to Professor Patti Alleva, longtime proponent of deep learning through metacognition, the Article first identifies and explores the unique challenges of teaching and learning legal writing. In Part II, the Article demonstrates how to take a broad-based metacognitive approach to foundational legal writing courses through being explicit about metacognition, providing a framework for self-critique based in metacognition, modeling metacognitive skills, and using assessment to encourage monitoring of learning.

Part III places metacognition and legal writing into the larger law school curricular context and argues that law schools ask incoming students to do too much, too soon, and in too little time. The compressed nature of traditional curricular design forces legal writing professors into a high-stakes conundrum with student education, constantly choosing what skills to teach and how deeply to teach them. A de-compressed first year curriculum along with a robust upper-level writing curriculum would alleviate this tension and promote student learning.

(Scott Fruehwald)


January 7, 2020 | Permalink | Comments (0)

Monday, January 6, 2020

The worst ed-tech debacles of the past decade

The blogger and author Audrey Watters (who is a self-described Cassandra of educational technology) has used the start of the new decade as an opportunity to look back over the past 10 years and chronicle what she calls the top 100 ed-tech "failures and f#%& -ups and flawed ideas." Her detailed list covers everything from "the flipped classroom" (#92) to "op-eds on banning classroom laptops" (#90) to "TurnItIn (and the cheating detection racket)" (#57) to "Brain Training" (# 56). Of course there's no shortage of overhyped classroom technologies and trends making her list which ensures IBM's Watson (#40) will never want for company.  Check out Ms. Watters full list here and see if your favorite classroom technology will be remembered as a ground-breaking innovation that makes teaching and learning easier and better or instead is a failed experiment that will be relegated to the dustbin of overhyped classroom technologies.   


January 6, 2020 | Permalink | Comments (0)

Wednesday, January 1, 2020

Research Across the Curriculum: Using Cognitive Science to Answer the Call for Better Legal Research Instruction by Tenielle Fordyce-Ruff

Research Across the Curriculum: Using Cognitive Science to Answer the Call for Better Legal Research Instruction by Tenielle Fordyce-Ruff.

"This article explores why and how law schools can use principles from cognitive psychology to respond to the need for graduates to have competency in legal research skills by adopting legal research across the curriculum. This article first explores the history of the tension between increasing skills instruction and doctrinal teaching, the academy’s response to criticisms about the lack of skills instruction, and how this response has led to an undervaluing of skills instruction within the academy and by law students. It then turns to calls for better research instruction, specifically the call for including legal research across the curriculum and the challenges to implementing such a curricular change. Next, it examines the competencies a legal researcher needs to possess and the current placement and state of legal research instruction in the academy and reviews the changes in legal research resources. It then examines cognitive science and psychology to examine how students learn best. Finally, it argues that including research across the curriculum would allow students to achieve the needed competency in legal research without placing undue burdens on law faculties."

(Scott Fruehwald)


January 1, 2020 | Permalink | Comments (0)

Monday, December 30, 2019

New York Times reports on study confirming academics work through the holidays

At the risk of stating the obvious (and insofar as that's not already so, studies like this help to shine a light on what some may not realize), the New York Times is reporting on a recent study published in the British Medical Journal finding that academics typically work weekends and holidays as dictated by their workloads. The study has limitations - it's confined to research scientists and bases its conclusions about the work habits of academics solely on the volume of scholarly manuscripts submitted and peer-reviewed over weekends and holidays. The "publish or perish" component of an academic's life is only one of the many responsibilities that consume weekends and holidays which the BMJ study does not account for like grading student work, prepping for class (or the new semester), committee obligations, extra-university service obligations, speaking engagements, etc., etc. But don't get me wrong, I'm not complaining about the workload since I feel truly blessed for the opportunity to work in academia, though concededly there are some malingerers and others who don't really work that hard (see Professor Brian Tamanaha's Failing Law Schools for proof). Speaking for myself, however, I work nearly every weekend and most holidays so my reaction to the BMJ study is a shrug of "so what?" But at least it offers some hard evidence you can share with family, friends, and that very special someone who may now better understand and appreciate the pressures of the job and will cut you just a little more slack when you have to spend New Year's Eve or your Sundays working. ;-)

Anyway, below is an excerpt of the NYT's article; you can access the underlying the BMJ study here.

There’s No Winter Break From ‘Publish or Perish’

An analysis of submissions to two top journals showed that scientists in the U.S. were highly likely to be working during holidays.


Jay Van Bavel, a social neuroscientist at New York University, is vowing not to work during the Christmas holidays.


A few years ago, Dr. Van Bavel had agreed to conduct peer review on a couple of manuscripts before the end of the semester. But he got really busy and ended up having to do one on Christmas Day and another on New Year’s Eve, while his family was visiting.


“I felt like I let down myself and my family,” said Dr. Van Bavel, who gets asked to conduct peer-review 100 to 200 times a year. But he says he has now learned his lesson, and is not planning to do any work in the Christmas holidays this year, except perhaps the odd email.


If Dr. Van Bavel holds to his vow, he’ll beat the trend of many of his colleagues. While you might be setting an out-of-office message and backing away from your keyboard as the winter holidays set in, many researchers in academia can be found working straight through the season. Scientists based in the United States are, in fact, the third most likely to work during holidays, behind only their counterparts in Belgium and Japan, according to a study published Thursday in BMJ.


The study — aiming to quantify some of the overwork and burnout experienced by researchers in the sciences — examined nearly 50,000 manuscript submissions and more than 75,000 peer-review submissions to BMJ and its sister journal, BMJ Open. More than a tenth of U.S.-based researchers who submitted manuscripts and peer review reports to journals did so during the holidays.


At the same time, researchers in China lead the world in working on weekends, where more than a fifth of academics submitted papers and peer-review reports, followed by those based in Japan, Italy and Spain. More than a tenth of researchers in the United States turned in studies on weekends, and more than 15 percent conducted peer review.


Scandinavian nations had the best work-life balance. Scientists in Sweden were least likely to work during holidays, and those in Norway generally kept their weekends free.


Adrian Barnett, a statistician and metascience researcher at Queensland University of Technology in Australia, who co-wrote the analysis, thought of conducting the analysis while submitting a paper on the weekend.


“This is a real marker of how hard I’m working,” he said.


The study has shortcomings. Among them, it only accounts for manuscript submissions and peer review, just two of many tasks on an academic’s plate, for instance.


Continue reading here (subscription may be required).


December 30, 2019 | Permalink | Comments (0)

Friday, December 27, 2019

Best Legal Education Articles of 2019

At the end of every year, I post my selection of the best legal education articles of the year on the TaxProf Blog.  You can find this year's list at  If you think I have omitted an important article, please feel free to add it in the comments.
This year I added my thoughts on legal education.  My piece raises concern about the lack of professional identity teaching at most law schools, and it presents a reason as to why law professors are slow in adopting legal reforms.
(Scott Fruehwald)

December 27, 2019 | Permalink | Comments (0)