Wednesday, July 1, 2020

From Socrates to Selfies: Legal Education and the Metacognitive Revolution by Jaime Lee

This excellent article claims that metacognition is changing legal education, and I agree.  From Socrates to Selfies: Legal Education and the Metacognitive Revolution by Jaime Lee.


"Metacognitive thinking, a methodology for mastering intellectually challenging material, is revolutionizing legal education. Metacognition empowers people to increase their mental capabilities by discovering and correcting flaws in their thinking processes. For decades, legal educators have employed metacognitive strategies in specialized areas of the curriculum. Today, metacognition has the potential to transform legal education curriculum-wide.

Current scholarship is rich, generous, and creative in exploring how metacognition can be used to enrich specific sectors of the law curriculum. What is missing, however, is a holistic examination of how metacognitive theory and practice have developed across these different sectors, with the purpose of improving the theoretical framework and increasing its effectiveness. This Article comprehensively reviews the many facets of the metacognitive revolution, drawing parallels for the first time between experiential and non-experiential pedagogies and further relating them to recent accreditation mandates. It then addresses the likelihood that an important phase of the metacognitive revolution—the mandate to implement formative assessments with meaningful feedback—might be widely but poorly implemented, and thus cause more harm than benefit. To mitigate this problem, the Article suggests two new ways of conceptualizing what constitutes “meaningful feedback.” The first is that for feedback to be meaningful, it must be accompanied by metacognitive reflection. The second is that feedback takes on meaning when prefaced by the deconstruction and abstraction, or “naming,” of legal thinking processes. Both insights emerge only upon a holistic examination of metacognitive theory and practice as they have developed across disparate sectors of the legal curriculum."

(Scott Fruehwald)



July 1, 2020 | Permalink | Comments (0)

Sunday, June 28, 2020

Montaigne and Professional Identity in Legal Education

An essay in the NY Times on the 16th-century, French philosopher Montaigne contains a paragraph that applies to how law schools should be teaching their students:

"More than a millennium earlier, thinkers like Epicurus and Seneca had already mapped out this path. Inscribing their words on the pages of his essays — as well as in the roof beams of his library — Montaigne grasped that, unlike philosophers in his day (or our own), these teachers sought not to inform their students, but instead to form them. As the classical scholar Pierre Hadot has argued, Stoicism and Epicureanism offered not airy abstractions but real-world “spiritual exercises.” Though the methods of these school varied, their mission was the same: to teach students how to master physics and ethics not as an end, but as the means to master their own selves and so better deal with life’s daily challenges, no less than its sudden catastrophes."

The idea behind the professional identity movement in legal education is the same as in Montaigne's essays--law schools should be forming students by helping them develop their professional identities.  If law schools form their students, they will never again be accused of being trade schools.

(Scott Fruehwald)



June 28, 2020 | Permalink | Comments (0)

Monday, June 15, 2020

What to Do About the Abysmal Outcomes for African-American Students on the California Bar Exam

The results were abysmal for American-American students on the February California bar exam.  According to one headline, Only 5% Of Black First-Time Takers Passed February California Bar Exam, Compared To 52% Of Whites, 42% Of Asians, And 31% Of Hispanics.  It is time that law schools do something about these terrible results.  Simply stated, our minority communities need more lawyers.

The problem is that some California law schools are admitting students with low indicators, then doing nothing to help these students. Educational research has demonstrated that schools can help struggling students by using better teaching methods. I have summarized this research in my books, How to Grow a Lawyer (2018) (for deans and law professors) and How to Succeed in Law School (2019) (for law students). Law schools can help minority students succeed if they use the right approach. There is no reason for these dismal results.

(Scott Fruehwald)


June 15, 2020 | Permalink | Comments (0)

Wednesday, June 10, 2020

The Erosion of Deep Literacy by Adam Garfinkle

Deep literacy (deep reading) is the beginning of legal reasoning and analysis.  If our society losses it in general, what does this mean for the law?

The Erosion of Deep Literacy by Adam Garfinkle.  Excerpts:

"Deep literacy is what happens when a reader engages with an extended piece of writing in such a way as to anticipate an author's direction and meaning, and engages what one already knows in a dialectical process with the text. The result, with any luck, is a fusion of writer and reader, with the potential to bear original insight."

"Deep literacy has wondrous effects, nurturing our capacity for abstract thought, enabling us to pose and answer difficult questions, empowering our creativity and imagination, and refining our capacity for empathy. It is also generative of successive new insight, as the brain's circuitry for reading recursively builds itself forward. It is and does all these things in part because it touches off a 'revolution in the brain,' meaning that it has distinctive and describable neurophysiological consequences."

"But it is also clear that something else has been lost. Nicholas Carr's 2010 book, The Shallows, begins with the author's irritation at his own truncated attention span for reading. Something neurophysiological is happening to us, he argued, and we don't know what it is. That must be the case, because if there is any law of neurophysiology, it is that the brain wires itself continuously in accordance with its every experience. A decade later, Carr's discomfort is shared by growing legions of frustrated, formerly serious readers."

"In her 2018 book, Reader, Come Home, Wolf uses cognitive neuroscience and developmental psycholinguistics to study the reading brain and literacy development, and in doing so, helps identify what is being lost."

"But beyond the addiction debate, few cognitive scientists doubt that so-called multitasking is merely the ability to get many things done quickly and poorly. And no one doubts that heavy screen use has destroyed attention spans."

"Beyond self-inflicted attention deficits, people who cannot deep read — or who do not use and hence lose the deep-reading skills they learned — typically suffer from an attenuated capability to comprehend and use abstract reasoning. In other words, if you can't, or don't, slow down sufficiently to focus quality attention — what Wolf calls "cognitive patience" — on a complex problem, you cannot effectively think about it."

"We know that prolonged and repetitive exposure to digital devices changes the way we think and behave in part because it changes us physically. The brain adapts to its environment. The devices clearly can be addictive; indeed, they are designed to be addictive."

"The knock-on issue thus becomes clear: It is hard to sustain the attention necessary for deep reading when we are distracted and exhausted from being both sped up and overloaded."

"A sadder and more troubling knock-on effect also reveals itself: If you do not deep read, you do not cultivate a capacity to think, imagine, and create; you therefore may not realize that anything more satisfying than a video game even exists."

"In science fiction, the typical worry is that machines will become human-like; the more pressing problem now is that, through the thinning out of our interactions, humans are becoming machine-like."

"The skimming and speed-reading in Z or F patterns that is characteristic of surfing the internet — the new norm for many — does not help enable critical content, if there is any, to sink into working memory. As reading method goes, it is the anti-deep; one barely gets wet at all."

"Only in the printed word can complicated truths be rationally conveyed."


Henry Kissinger noted one consequence of this development in the context of strategy:

Reading books requires you to form concepts, to train your mind to relationships....A book is a large intellectual construction; you can't hold it all in mind easily or at once. You have to struggle mentally to internalize it. Now there is no need to internalize because each fact can instantly be called up again on the computer. There is no context, no motive. Information is not knowledge. People are not readers but researchers, they float on the surface....This new thinking erases context. It disaggregates everything. All this makes strategic thinking about world order nearly impossible to achieve."

"But Kissinger is getting at something else here: namely, the sources of original thought. The deep-reading brain excels at making connections among analogical, inferential, and empathetic modes of reasoning, and knows how to associate them all with accumulated background knowledge. That constellation of sources and connections is what enables not just strategic thinking, but original thinking more broadly. So could it be that the failures of the American political class to fashion useful solutions to public- and foreign-policy challenges turn not just on polarization and hyper-partisanship, but also on the strong possibility that many of these non-deep readers are no longer able to think below the surface tension of a tweet?"

"Absence of thought as a mode of cognition likewise stifles imagination and feeds cultural insularity. Along with the technology-enabled prevalence of mediated interactions as opposed to face-to-face ones, insularity in turn conduces to the narrow "tribal" emotions of identity politics."

"Indeed, our developing the ability to deep read is part of what made us human."

As Hermann Hesse pointed out, "[w]ithout words, without writing, and without books there would be no history," and so "there could be no concept of humanity."

"Deep reading alone creates the possibility of a private internal dialogue with an author not physically present."

"In order for deep reading to exist there also must be deep writing."

"The capacity for abstract reasoning, too, is integral to liberal-democratic politics."

"The decline of deep literacy, combined with the relative rise in status of the superficially educated, may well be the main food stock for the illiberal nationalist forms of the contemporary populist bacillus . . ."

Conclusion: "The phenomenon of deep literacy can be a powerful explanatory factor for a range of theoretical and practical questions. No single factor explains anything entirely when it comes to the spiraling universe of social and political life, and it would be a stretch to claim that any of the above arguments amounts to a proof. But to omit deep literacy from the range of considered variables seems unwise. We should continue to generate new and more interesting questions to pose about deep literacy, and the meaning of its possible erosion, or transformation by novel means, in our own country and beyond."

(Scott Fruehwald)

June 10, 2020 | Permalink | Comments (0)

Wednesday, June 3, 2020

Harvard Law School to Continue Remote Teaching in the Fall

"In a series of messages to the HLS community today, Dean John F. Manning announced that the law school will continue remote teaching and learning for the fall 2020 semester."  @Harvard_Law  What will other law schools do?

(Scott Fruehwald)

June 3, 2020 | Permalink | Comments (0)

Online Interactive Legal Research Exercises by Eric Voigt

Eric Voigt has sent me information about his new online interactive legal research exercises on Core Knowledge for Lawyers.  He writes, "As you know, various law schools may hold fall classes entirely online or in a blended learning format. This new platform could be a valuable tool for instructors, students, and attorneys.

Core Knowledge has two types of assessment materials. First, this online platform contains multiple-choice questions from the end of each chapter of Legal Research Demystified. These questions test students' understanding of basic research concepts.

Second, Core Knowledge hosts interactive research exercises that students complete electronically. Each exercise involves one fact pattern in which students research on Westlaw or Lexis Advance and complete multiple research steps to reach a reliable conclusion on each client's legal question. Each exercise takes a student from start to finish of the research process for one legal issue. For example, for the Lexis Advance Common Law Research Exercise, students must create a research plan (Step 1), find state-specific secondary sources (Step 2), find relevant cases by using the LexisNexis Headnote System (Step 3), use Shepard's to find and validate cases (Step 4), and perform keyword searches in a caselaw database (Step 5). Throughout the process, students must evaluate the authorities found, including examining their relevance and the weight of authority.  

Core Knowledge automatically grades each answer and provides an explanation to students—similar to Core Grammar. As a result, a professor can provide instant feedback to students without increasing the instructor's workload.

The questions and exercises on Core Knowledge are based on Legal Research Demystified. Nonetheless, I am revising these online materials, so they could be assigned with any legal research book."

(Scott Fruehwald)

June 3, 2020 | Permalink | Comments (0)

Monday, June 1, 2020

"Law Professor takes 1L Zoom Oral Arguments Nationwide" (and here's how she did it)

I'm passing this along for a colleague (and though it may be too late for this year's 1L spring oral argument exercises, it's its valuable advice for those upper class moot court arguments and competition that'll be happening this fall when we'll most likely still be in lockdown mode): 

"In mid-March when law schools across the country converted to an online-only course format as a result of the COVID-19 international pandemic, skills faculty were faced with making fast decisions about holding final oral arguments, the typical capstone activity in persuasive writing courses.

In an unofficial poll of 76 schools, 46% writing programs canceled oral arguments altogether, while 80% of those programs forged ahead, deciding to hold oral arguments on the zoom platform. Most faculty interacting on the Legal Writing Institute professional listserv wrote that they arranged to judge arguments themselves, to have teaching assistants judge arguments, or secured some local attorneys to judge arguments.

Many months prior to the world health crisis, UALR Professor Debbie Borman arranged to hold final arguments in the Federal District Court for the Eastern District of Arkansas, as she did in the spring of 2019.  Professor Borman recruited numerous practicing attorney members of the Little Rock Woods Inn of Court to judge arguments. But once the Federal Courts announced closure and she moved the arguments online, the volunteer judges dropped off.

Screen Shot 2020-04-14 at 9.44.47 AM

That is when Professor Borman got global: if arguments were remote, why limit judges to Little Rock?

Professor Borman went to work recruiting attorneys and judges from Chicago, Denver, Kansas City, and New York. In addition to the committed few from Little Rock that included a Federal District Judge, a Little Rock Circuit Court judge, and several practitioners, Prof. Borman recruited a panel of three former students from the first class she ever taught at DePaul College of Law in 2006; a former teaching assistant and a former student from Denver Law; a former student from UIC John Marshall, a practicing attorney who clerked in both the federal district and circuit courts, and attorneys in appellate and other fields of practice.

Allison Kort, a former law professor, judged one virtual argument. Kort is an appellate attorney in Kansas City and provided the link to zoom arguments in the Kansas Supreme Court the Saturday just prior to Professor Borman’s scheduled arguments. Students (and the professor) were able to view an identical appellate argument format and virtual logistics in action.

Judges found the experience both enjoyable and realistic:

Evan Smola, a partner in a Chicago law firm, and one of Prof. Borman’s students from her 2006 class said: “The best part of this whole process is that it precisely mirrors what is happening now in courts: parties are appearing for real arguments via zoom and Skype. Adapting legal education to an evolving legal world is critical for educators and their students.”

Jamie Dening, Prof. Borman’s former student from the University of Denver, now a New York practitioner said: “I had a lot of fun.”

Mike Rief, an Arkansas Circuit Court judge said, “it was a pleasure to judge. All of the students were well-prepared and did a good job on a new platform that all of us are going to have to learn how to navigate.”

Students also extolled their virtual experiences:

I felt as though arguing in front of judges from different areas of the country and with different expertise pushed me to consider how my argument might be perceived and evaluated from all sorts of perspectives. – Caitlyn Brainard

Professor Borman’s innovation in arranging this experience with judges around the country is a testament to her dedication to the legal profession and her desire to prepare her students for practice by developing our ability to adapt.  - Sloane Stine

One student who was nervous about the zoom format was surprised at the ease of the argument:

For students like myself who struggle with public speaking, I was able to adjust settings to focus on the judge asking the question without any distractions. Overall it was a great experience and I honestly don’t think I would have been able to perform as well if the arguments were in person. – Vahid Sacirovic

Professor Borman is pleased that her last creative endeavor in experiential learning was so very successful.

“I loved it,” she said, “working with attorney friends and colleagues from all over the country was the ultimate great reward. My UALR students had the opportunity to learn from successful practicing attorneys with a wide field of experience in practice, judging, teaching, and clerking. The variety of feedback will serve students well in their careers.”

At the end of this semester Professor Borman will “retire” from teaching and return to practice in the Civil Appeals Division of the Office of the Illinois Attorney General."


June 1, 2020 | Permalink | Comments (0)

Sunday, May 31, 2020

Behavioral Ethics, Deception, and Legal Negotiation by Russell B. Korobkin

Here is an excellent article on behavioral legal ethics and legal negotiations:

Behavioral Ethics, Deception, and Legal Negotiation by Russell B. Korobkin.


"Research in the field of behavioral ethics finds that much unethical behavior is not the result of conscious amorality. Rather, cognitive and motivational biases enable and even encourage people who consider themselves to be pro-social to act badly without ever recognizing the shortcomings of their behavior. This Article, delivered as the annual Chris Beecroft, Jr. Memorial Lecture on Dispute Resolution at the UNLV Boyd School of Law, explores how the findings of behavioral ethics can help to better understand, predict, and potentially combat unethical behavior in legal negotiation. Its admittedly pessimistic conclusion is that legal negotiation is an activity that is likely to be rife with behavior that is unethical, or at least presses hard against ethical boundaries.

The Article summarizes the core findings of behavioral ethics research, explains why this research suggests that deceptive behavior will be common in negotiation, argues that the agency role played by lawyers in legal negotiation likely also encourages unethical behavior, and, finally, propose steps that lawmakers or negotiators themselves might take to reduce the amount of deceptive behavior in legal negotiation.'

Behavioral legal ethics has become a key topic in the legal ethics field.  Korobin says this about BLE:

"This Article contributes to this literature by viewing legal negotiation through the lens of social science research in the field of 'behavioral ethics.' The core finding of body of research is that much unethical behavior is not attributable to the classic Holmesian 'bad man,' who is consciously amoral—that is, interested only in his own gratification and completely unconcerned with the interests of other individuals or societal norms and expectations. Rather, cognitive and motivational biases often enable and even encourage people who care about other individuals and society more generally, rather than just themselves, to act in ways neutral observers would view as unethical, without ever recognizing their behavior as such."

(Scott Fruehwald)

May 31, 2020 | Permalink | Comments (0)

Thursday, May 28, 2020

Legal Writing as a Discipline: Past, Present, and Future by Jan M. Levine

As new legal writing professors enter the profession, they need to know about the history of the legal writing movement.  This movement has had a tremendous impact on legal education and preparing lawyers for the 21st Century.  Here is a chapter from the ABA Legal Writing Sourcebook, 3rd ed. on the history of legal writing in the academy:

Legal Writing as a Discipline: Past, Present, and Future by Jan M. Levine.


"Legal research and legal writing, particularly for persuasive purposes, have been a part of a lawyer’s stock in trade at least as far back as ancient Greece and Rome.46 But that history has not always been marked by laudable achievements. The written work of English lawyers was often ridiculed as obtuse, obfuscatory, and unintelligible. Unfortunately, American lawyers, in their turn, have received much of the same ridicule.Only in the past four decades has legal education in America devoted much attention to professional training in legal writing."

(Scott Fruehwald)

May 28, 2020 | Permalink | Comments (0)

Friday, May 22, 2020

AALS President Darby Dickerson: Promoting Candor with Critical Thinking

Darby Dickerson has made the power of words her theme for her year as President of AALS.  (here)  In her column in the Spring 2020 AALS News, she writes about Promoting Candor.

She declares, "'Candor' refers to being open and honest, or forthright. Candor has traditionally been central to the legal profession. The Model Rules of Professional Conduct, for example, call for lawyers to 'render candid advice,' exhibit candor toward the tribunal, avoid making false statements of material fact or law to a third person; and, if serving as prosecutors, disclose exculpatory evidence. Candor helps the legal profession earn public trust. It helps us to pursue justice. But the value of candor seems to be eroding, especially in the face of ubiquitous spin control."

She continues, "Because law schools start teaching persuasive techniques in the first year, faculty should develop and use techniques to teach students the value of candor and help them find the line between acceptable persuasion—when an advocate argues zealously, accurately, and honestly for the client—and tactics that can harm their clients, the judicial system, and the profession."

Dean Dickerson next discusses ideas to promote candor: modeling candor in our classrooms, welcoming diverse perspectives, encouraging students to be curious and ask questions, discussing spin and deceptive techniques, incorporating ethical issues into assignments, adding courses on data and statistics to the law school curriculum, teaching information literacy, and doubling down on critical thinking.

Concerning critical thinking she writes, "Professors must ensure that they are teaching students to think critically. Critical thinking is deep thinking that helps us question whether information presented is reliable, fact-based, evidence-based, and unbiased. In February 2020, Scott Fruehwald released How Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton Asked Why. In that book, he reminds us that critical thinking can help overcome superficial and biased thinking; help determine when more information is needed; help understand multiple perspectives; and help recognize manipulation. Consequently, helping students master critical thinking is a powerful tool to promote candor."

I am very happy that Dean Dickerson stresses critical thinking as an important part of the law school curriculum, and I thank her for mentioning my book.  True critical thinking is not generally a part of law school teaching, but it needs to be.  I urge all law school professors to incorporate critical thinking into their classes.  Once you understand what critical thinking is, incorporating it is not hard.  It is more like developing a good habit than anything else.

(Scott Fruehwald)

May 22, 2020 | Permalink | Comments (0)

Thursday, May 21, 2020

Teaching Legal Analysis: A Tale from the Front by Charles Splawn

Here is an excellent article on how to teach legal analysis:

Teaching Legal Analysis: A Tale from the Front by Charles Splawn.

"Legal analysis is the foundational skill of lawyering, and it is at least part of what captivated us as law students. But because legal analysis is as much art as science, explaining it—now as teachers—can be a somewhat elusive process. Inspired by a colleague’s simple but effective presentation at a conference I attended four years ago, and armed with a great textbook, I have embarked on a teaching journey that has been remarkably fulfilling—for my students and for me.

While the specific approach I have developed is not earth-shattering, it nonetheless offers some solid techniques and addresses some of the difficulties in cultivating singular focus and intense scrutiny in our millennial law students. I hope that sharing my teaching experience will be helpful to those charged with the task of teaching legal analysis. I note also that the principles explored herein could fruitfully be applied in other contexts. For instance, an abbreviated series of legal analysis exercises deployed in a pre-1L program could provide a wonderful foundation for more effective 1L learning. Similarly, the course content I describe below could be parceled out in academic support workshops or one-on-one meetings, giving the academic support professional a tried and true, turn-key platform to develop students’ analytical skills.

This Article will explore four key aspects of the course I have entitled “Mastering Legal Analysis.” The first key aspect is the necessity of introducing (or at least re-introducing) students to the classification of information and the examination of inferences, both of which are essentially ways of figuring out the relationship between the concepts that lurk behind our terminology. Second is the deliberate and thorough deconstruction of the process of legal analysis itself—breaking an often-inscrutable monolith into discrete, manageable tasks. Third is a summary of the overarching strategy and specific techniques by which my students are challenged to move through a wonderfully practice-oriented textbook. Finally, I describe how student engagement in this cumulative process culminates in a longish office memorandum that serves both as proof of the skills they’ve acquired and a template for the union of thinking and communication that will help them in law school, on the bar exam, and in the practice of law."

Professor Splawn stresses the explicit training of analysis, and his article includes some excellent exercises.

(Scott Fruehwald)


May 21, 2020 | Permalink | Comments (0)

Monday, May 18, 2020

A Sneaky Peek at CSALE 2019-20: Clinical Law Faculty and Their Courses by Robert R. Kuehn

Here is a sneak peek at the The Center for the Study of Applied Legal Education (CSALE) tri-annual survey of clinical legal education.

From Robert Kuehn: "As you may know, every three years the Center for the Study of Applied Legal Education (CSALE) conducts a nationwide survey of clinical education programs, courses, and faculty. The first phase of CSALE’s 2019-20 Survey, the CSALE Master Survey, was completed in the fall by over 94% of law schools. The second phase, the CSALE Sub-Survey, seeks detailed information from law clinic and externship faculty on their courses and employment status. The blog posting shares some important results from the Master Survey about law school programs and policies and and the status of clinical faculty. CSALE will publish a detailed report on the complete CSALE 2019-20 Survey of Applied Legal Education, its fifth, in late summer."

There is a lot of important information in the "sneak" peak.  Thanks to Bob and his colleagues for doing so much hard work.

Update: I am very bothered by this sentence: "Ten percent of schools simply restructured an existing legal research and writing course to now be considered experiential." While this may satisfy the literal language of standard 303, it does not satisfy its spirit. I hope that site visit committees will take a close look at this practice with the schools they visit and that the Council will consider revising this language to prevent the practice.

(Scott Fruehwald)

May 18, 2020 | Permalink | Comments (0)

Friday, May 15, 2020

Speaking the Truth: Supporting Authentic Advocacy with Professional Identity Formation by Laura A. Webb

Professional identity training is essential to producing an effective lawyer, who can serve his or her clients and society.  Here is an excellent article on professional identity formation.

Speaking the Truth: Supporting Authentic Advocacy with Professional Identity Formation by Laura A. Webb


"When law students are asked to articulate legal rules in a persuasive communication such as a brief, they may experience internal tension. Their version of the rule, as framed to benefit a particular client’s position, may be different from the way they would articulate the rule if they were not taking on an advocate’s role. The conflict between those two versions of a legal rule leads some students to wonder if advocacy itself is deceptive, if an advocate’s role requires one to sacrifice ethics for success, and if ancient Greek philosophers were correct when they derided persuasive communication as “trickery and magic,” and criticized advocates for making arguments that were “artfully written but not truthfully meant.” This tension is not unique to students. All advocates must ask themselves whether they can provide a true and accurate version of the law (truthful law) and simultaneously articulate a version of the law that will help their clients. This question speaks to the very nature of law and what it means to be a lawyer. If the question is not successfully resolved, students and lawyers are more susceptible to the cynicism and discontent that permeates the legal profession.

Using Plato’s denunciation of rhetoric and rhetoricians as a starting point, Part I of this Article will explore how the first year of law school may create and exacerbate tension between law students’ desire to advocate on behalf of their clients and their desire to truthfully communicate the law. Part II will explore how law school could resolve this tension with an explicit discussion of legal determinacy and the lawyer’s role in creating law: what students need to hear, when they need to hear it, and where that conversation might be placed within the curriculum. The Article will identify the developing area of professional identity formation as a natural location for an effective discussion, which would ideally occur within the first year of studies. In that discussion, law students can explore a view of lawyers as meaning-makers and truth-tellers: rhetoricians who understand and are faithful to the true essence of a law but are also able to create alternatives within the scope of that true law. Students and lawyers can integrate their own identities into this professional identity, and maintain authenticity in their advocacy."

(Scott Fruehwald)

May 15, 2020 | Permalink | Comments (0)

Wednesday, May 13, 2020

That Does Not Compute, President Winick

When I was a little kid, my friends and I loved "Lost in Space."  Our favorite line was "That Does Not Compute, Dr. Smith," which the robot said whenever Dr. Smith said anything illogical.

Mitchel L. Winick (President & Dean, Monterey College of Law) has made a similar illogical statement in an article on the recent abysmal California bar exam results.  TaxProf Blog op-ed:  Occam’s Razor: The Broken California Bar Exam.  In fact, the results on the February Cal. exam were the worst in history.  (here)

President Winick uses Occam's Razor to explain these terrible results.  According to Occam's Razor, the simplest solution is most likely the right one.  Winick states, "We could believe that all 40+ California law schools suddenly and inexplicably became incapable of teaching substantive bar tested subjects . . . or perhaps the California Bar Exam grading and scoring system is broken."  He continues, "Alternatively, we could believe that California law schools conspired to intentionally destroy the profession by systematically seeking out and selecting students who had little or no ability to successfully study and understand the principles of law . . . or perhaps the California Bar Exam grading and scoring system is broken.  etc., etc."  He concludes that the California bar exam is broken.

You don't need to be a computer or a PhD in logic to discern that President Winick's logic does not compute.  In trying to determine why the bar exam result was so abysmal, you look to see what input or inputs have changed.  Only one input changed; California schools on the average have been admitting students with lower and lower GPAs and LSAT scores.  (here)  Nothing else has changed.  The pass/fail cut off has not changed for many years.  Consequently, the only explanation for the February results is that California law schools on the average have been admitting weaker and weaker students.

Of course, President Winick is the president and dean of a non-ABA California law school.  Under Occam's Razor, the simplest explanation for Winick's faulty logic is that he is not a disinterested observer.

As I have stated many, many, many, many, many times before, the only way for California law schools to raise their bar pass scores without raising the quality of their students is to better educate their students using established educational techniques.  I have laid out a plan for doing so in my book, How To Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students (2018). Also, as I have stated many, many, many, many, many times before, FIU has produced amazing bar pass results.  (here)

Finally, maybe the California bar should look at the non-ABA accredited law schools.  Such schools had a 17% pass rate for first-time takers on the February exam and a 26% rate for last July.  Are the California accredited schools supplying value to their students and the California bar?  Of course, not all non-ABA accredited schools had such dismal results.  For example, Glendale University College of Law had a 64% pass rate for first-time takers last July.

(Scott Fruehwald) 


May 13, 2020 | Permalink | Comments (0)

Tuesday, May 5, 2020

Rational Charitable Giving

In my book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why, I emphasize the importance of using critical thinking in the law.  Of course, critical thinking applies to countless aspects of our lives, even ones we would never connect with critical thinking.  One of these is charitable giving.  Do you use critical thinking when you donate money to charities?

There is a new social movement called effective altruism that applies critical thinking to charitable giving.  The best introduction is a short lecture by Eric Gastfriend.  (here at 46:23).  Effective altruism is "doing the most good you can for the world given the resources you have." 68% of donors do not research the charities they give to, and only 3% give based on relative performance of the charities.  This has several results.  First, donors do not know the charities that need funds the most.  For example, heart disease charities receive only a small percentage of donations in the health charity pool, despite the fact that it is the leading cause of death.  Second, donors do not ask whether a charity is causing, not merely correlating, with positive change.  Third, donors do not know which charities are most cost-effective--which ones get the most bang for a buck.  For example, it costs $40,000 to train a guide dog.  For the same amount, third world countries can restore the vision of 1,000 people through cataract surgery.  Finally, donors do not ask whether the charity is having a positive effect.  In fact, "1) the vast majority of social programs and services have not yet been rigorously evaluated, and 2) of those that have been rigorously evaluated, most (perhaps 75% or more), including those backed by expert opinion and less-rigorous studies, turn out to produce small or no effects, and, in some cases negative effects."  (here)

Of course, many people will not have the time to do the research necessary for effective altruism.  Fortunately, others have done this with some charities.  The Life You Can Save, Effective Altruism, Give Well.

In sum, when donating to charities adopt an evidence-based mindset.

Here is another introduction to effective altruism.

(Scott Fruehwald)

May 5, 2020 | Permalink | Comments (0)

Monday, May 4, 2020

A call for a virtual summit on online legal education and the importance of active learning

Former Northwestern Dean, Daniel Rodriguez, has called for a virtual summit on online legal education.  He wrote, "Bottom line, our universities and law schools may not be able to function as they did pre-March 2020. . . .  We are going to need to develop some fundamentally creative and responsible strategies to deal with this temporary new normal.  .  . .  What I want to suggest is that we would do well to convene a big summit, in a virtual form, to discuss comprehensively, tactically, and in a data-driven way, how we might deliver excellent legal education in an online format (entirely, partially, to some of our vulnerable students)."

He concluded, "We need to do something big. Fingers crossed that the fall will bring relief is not the answer. This strategic endeavor for how to maintain educational quality with fundamentally different pedagogy is a massive undertaking, one that falls squarely under the rubric of worst-case scenario contingency planning. But if we are not intentional and inclusive about this conversation, we could find our proud system of legal education imperiled, or at least knocked seriously back on its heels."

I agree with Dean Rodriguez.  If law schools must remain online this fall because of the coronavirus, they need to plan now to retain the quality of legal education.

I would like to emphasize the importance of active learning as a part of online instruction.  Active Learning: "With active learning, teachers involve their students directly in the learning process. It is the opposite of passive learning, like listening to a lecture. In the class-room, active learning can include asking students questions about what they have read, doing exercises, asking students to reflect on what they just learned, and doing collaboration exercises. Active learning while studying includes self-testing, organizing and rewriting notes, creating a class outline, and doing self-correcting exercises."  (here)  Active learning is effective because students remember more, are better able to apply the knowledge, and are better able to deal with complex problems.  (Id.)  Students who are in classes with active learning classes outperform those in traditional lectures on identical exams.  (E.g., here) My book, How To Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students, discusses in detail which active learning techniques work well and which learning techniques don't.

Problem solving exercises are an especially good teaching tool because problem solving requires active participation (not just observation), it challenges students to develop legal skills in context rather than relying on knowing legal rules, and it facilitates self-reflective learning.  (here) You don't have to reinvent the wheel; there are a lot of good exercises out there. I particularly recommend the the Context and Practice Series from Carolina Academic Press.  (here, here)

I have written a torts exercise book, A Companion to Torts: How to Think Like a Torts Lawyer, which would work well in an online class because it includes exercises on both the micro-, medium-, and macro-level.  "This book takes a new approach to learning torts law: its goal is to teach law students to think like torts lawyers. Thinking like a lawyer means solving a problem to produce a legal solution. This process involves using several types of reasoning in combination, including synthesis, rule-based reasoning, analogical reasoning, distinguishing cases, policy-based reasoning, and creativity. A torts lawyer uses these reasoning methods to solve torts problems. This book will include a variety of torts exercises on the different types of legal reasoning to achieve the goal of teaching students to think like torts lawyers. This book is a supplement to torts casebooks and textbooks."

Finally, law schools need to teach their students effective study techniques.  The techniques students used in high school and college, which they learned by trial and error, don't produce effective lawyers.  Effective techniques include self-testing, spaced learning, repetition, interleaving, journaling, etc.  Researchers have demonstrated that several common study techniques are ineffective, including summarization, highlighting, the keyword mnemonic, imagery use for text learning, and just rereading.  I teach students effective study techniques in detail in my book, How to Succeed in Law School.

Of course, active learning is just one of the topics that needs to covered in a summit on online legal education.  However, it is probably the most important one for the effectiveness of online education.

(Scott Fruehwald)


May 4, 2020 | Permalink | Comments (0)

Thursday, April 23, 2020

preLaw Magazine's 2020 law school rankings for practical skills training

Below is the 2020 preLaw Magazine's rankings for "best practical legal skills training." The magazine assesses each school according to a number of data points that focus on practical skills curricular offerings like clinics, externships, simulation courses, pro bono hours and moot court participation.  The magazine gives the largest weight in its overall scoring (32%) to the number of clinical offerings.  It then asked schools to provide the number of students who completed a clinic in 2018-19. If a student was enrolled in two semesters, that counted as two. Extra credit was given to schools where clinical work is guaranteed or required. 

Externships were weighted at 25% of the overall rankings score with the magazine asking schools how many students completed one in 2018-19. Again, if a student had two externships, that counted as two. Simulation courses accounted for 20% of the overall score with preLaw asking schools to provide total enrollment figures for such courses.

Moot court and pro bono hours accounted for 10% of the total rankings score. If a school required pro bono hours, it got extra credit.

Finally, the magazine gave 10% to additional practical training offerings, such as required legal writing.  It asked schools to provide it with such information as the schools saw fit.

If schools did not reply, the magazine relied on ABA data.

Schools were then grouped based on their overall scores as "A+," "A," "A-," or "B+" and then ranked individually within those groups. The rankings for the "A+" schools are below.  See the magazine here for the rankings of schools in "A," "A-," and "B+" groups. 

  1. Northeastern University
  2. St. Thomas University - Mn.
  3. Baylor University 
  4. University of Minnesota 
  5. University of Denver 
  6. Brooklyn Law School
  7. Elon University 
  8. Brigham Young University 
  9. Case Western Reserve University 
  10. Pepperdine University 
  11. University of Arizona 
  12. Liberty University School of Law 
  13. Florida Coastal School of Law 
  14. Chapman Fowler School of Law 
  15. Southwestern Law School 
  16. University of Georgia
  17. North Carolina Central University 
  18. University of Colorado 
  19. UC - Irvine 


April 23, 2020 | Permalink | Comments (1)

Wednesday, April 22, 2020

The Best Solution to Global Warming from the Perspective of Critical Thinking.

I have just watched a lecture (Climate Change: Guest lecture by Solomon Goldstein-Rose) that contains the best solution to global warming that I have seen.  (He has also written a book The 100% Solution: A Plan for Solving Climate Change (2020).)  It is the best solution because it follows the established criteria for critical thinking, as I set out in my book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why (2020).

The plan is to get harmful emissions to 0% by 2050, a common goal of environmentalists.  Professor Goldstein-Rose began by looking at all sources of global warming, not just the ones we usually think about like motor vehicles.  For example, agriculture and deforestation account for 17% of the harm.  He does this because the world needs to deal with all the kinds of emissions if it is to achieve the 2050 goal.  He also declares that the world needs to have a realistic picture of the quantity of emissions.  For instance, electricity generation will not remain at 2020 levels, but it will grow significantly as world economies grow.

His most insightful observation is that creating a solution just for the United States will not stem the danger of global warming because the U.S. accounts for only a small percentage of greenhouse gases.  About 2/3rds of greenhouse gases will come from developing countries by 2050 if nothing is done.  The U.S. can afford to get its emissions to 0% by 2050, but other countries will not because of the high cost.  The solution: concentrate on lowering the cost of green solutions.  For example, electric cars will eliminate the emissions from vehicles that use fossil fuels.  However, the initial cost of electric cars is significantly higher than traditional automobiles.  Consequently, consumers in developing countries will not buy them.  However, if the cost goes down to where electric cars cost less than traditional ones, consumers will buy them.  How do you bring down the cost?  Simple economics: the more units produced the lower the costs.  The same principle applies to other sources of harmful emissions, such as electricity generation.  In sum, governmental incentives need to be directed at bringing down the costs of green solutions.

The above is just a small part of Professor Goldstein-Rose's plan to solve global warming.  Listen to his lecture or buy his book.  Government planners should do both.

Why an I convinced by this solution?  There are countless other solutions to global warming out there.

I am convinced because he has carefully followed the principles of critical thinking.  First, he has considered the problem from all angles, and he has asked the right questions.  As I mentioned above, he started by identifying all sources of global warming, not just the ones that activists usually talk about.  Second, he has identified all reasonable alternatives and carefully evaluated each one, a key part of critical thinking.  Finally, he has considered the consequences of his proposals, such as how to deal with the politics of solving global warming.

The solution also satisfies the key criteria of critical thinking I set out in my book:

A. It is metacognitive and reflective.
B. It is evaluative.
C. It is skeptical and moderately distrusting.
D. It is analytic.
E. It tries to be unbiased and open-minded.
F. It is effortful, potentially time-consuming, and mentally taxing.
G. It requires domain-specific expertise.

In my book and in this blog, I have stressed the importance of using critical thinking in the law.  Professor Goldstein-Rose has provided a perfect example of critical thinking in public policy.

(Scott Fruehwald)

51Ok9x4D6GL._SX365_BO1 204 203 200_

April 22, 2020 | Permalink | Comments (0)

Thursday, April 16, 2020

The Evidence-Based Mindset for Legal Scholarship: A Key to Critical Thinking

When I was writing my book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, But Newton Asked Why, I discovered that one of the essential aspects of critical thinking was grounding statements, ideas, arguments, and conclusions with rigorously-evaluated  evidence.  I noted that "Students inability to support a conclusion should tell them that their conclusion may be faulty."  Students (and others) should develop a habit of checking to see whether their work is solidly based in evidence.

Today, I found a term for this habit: the evidence-based mindset.  (From a lecture by Steven Pinker.)  All legal scholars should adopt this mindset.

Adam Lamparello has written an article that demonstrates why legal scholars need to adopt this mindset, especially those scholars who do studies based on sociological or scientific methods. (The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education)  The article declares, "Empirical research methods and statistics should be incorporated into legal scholarship and the law school curriculum, preferably in the legal writing curriculum. . . .  Law students (and legal scholars) should be more like social scientists. They should learn to conduct empirical research and to distinguish between credible and flawed empirical research, (particularly regarding methodological flaws) because doing [so] is imperative to making persuasive and credible arguments. After all, how can lawyers be effective social justice advocates if they are not well-versed in social science research? Moreover, the legal writing classroom is an appropriate environment in which to teach empirical research and statistical methods because it is where students learn how to research, write, communicate, and formulate persuasive arguments. Ultimately, that should be the goal of legal education."

Lamparello asserts, "recent empirical studies by social psychologists strongly suggest that implicit bias is not predictive of biased behavior. In fact, the science regarding implicit bias’s connection to biased behavior is so flawed that social psychologists doubt its validity and question the utility of policies that attempt to link implicit bias to biased behavior. You wouldn’t know this from reading the many law reviews articles concerning implicit bias, or from the orientation sessions where law students are taught to believe that implicit bias is the sine qua non of biased behavior."  He continues, "Ultimately, before legal scholars and law school administrators can credibly claim that implicit bias predicted biased behavior, they must address the substantial body of social science research, particularly by social psychologists, concluding that they are wrong."  He then goes into the details about the flaws in implicit bias theory.  He concludes, "Quite frankly, it seems that legal scholarship in this area is driven by personal agendas rather than an honest search for truth."

Thomas Abt presented a lecture on urban violence in Steven Pinker's Rationality class at Harvard that demonstrates the importance of making policy-based decisions based on the evidence-based mindset.  (here)  He defines evidence as "Information about a question that is generated through systematic data collection, research, or program evaluation using accepted scientific methods that are documented and replicable."  (Note that he uses critical thinking criteria within this definition.)  He notes that the benefits of of evidence-informed policy are objectivity, accuracy, consistency, and transparency.   He adds that the key to the scientific method is that you show your work.  (I strongly recommend you watch the entire video.)

In sum, law professors need to adopt an evidence-based mindset for legal scholarship and use the proper critical tools for their area of study.  (The caveat is, of course, that the evidence -based mindset is not appropriate for all areas of legal scholarship.)  Using evidence, rather than relying on unreliable intuition, will lead to more accurate results.  Our intuition may make us think that implicit bias theory is true, but the evidence-based mindset may show that our intuition has lead us astray.  Beware of the confirmation bias.

(Scott Fruehwald)   

April 16, 2020 | Permalink | Comments (0)

Wednesday, April 15, 2020

How to Fix Legal Scholarmush by Adam J. Kolber

Here is a fascinating paper about confusion in legal scholarship concerning descriptive and normative claims: How to Fix Legal Scholarmush by Adam J. Kolber.


Legal scholars often fail to distinguish descriptive claims about what the law is from normative claims about what it ought to be. The distinction couldn’t be more important, yet scholars frequently mix it up, leading them to mistake legal authority for moral authority, treat current law as a justification for itself, and generally use rhetorical strategies more appropriate for legal practice than scholarship. As a result, scholars sometimes talk past each other, generating not scholarship but scholarmush.

In recent years, legal scholarship has been criticized as too theoretical. When it comes to normative legal scholarship, however, the criticism is off the mark. We need more careful attention to theory, otherwise we’re left with what we have too much of now: claims with no solid normative grounding that amount to little more than opinions. We have no shortage of opinions, and simply producing more opinions will not make scholarship more practical.

Of course, centuries-old disputes in jurisprudence have struggled to untangle the precise relationship between law and morality, but my message is simple: Scholars must be more clear, transparent, and rigorous about which of their claims are descriptive and which are normative (and what sort of normativity is at issue). By being more precise, we can hope to stop talking past each other and develop more objective criteria for evaluating both scholarship and public policy more generally.

(Scott Fruehwald)

April 15, 2020 | Permalink | Comments (0)