Tuesday, February 7, 2012

Wegner on "Naming" and "Thinking Like a Lawyer" (Wegner 5)

Professor Wegner’s article, Reframing Legal Education’s "Wicked Problems," next discusses the power of "naming," offering an in-depth look at the nuances of "thinking like a lawyer" as understood by students and faculty members interviewed in connection with the Carnegie Report. She stresses the specific ways that first-year case-dialogue instruction forces students to deal with uncertainty, one of the critical dimensions of professional practice, and she unpacks the notion of "thinking like a lawyer."

Wegner begins with an examination of what thinking like a lawyer means to faculty and students: "the notion of thinking like a lawyer has more significance than most beginning students appreciate. It involves a certain kind of thinking (a form of reasoning that is situated in the legal context reflecting the needs and purposes of lawyers). It involves certain kinds of content and dynamics (case-based precedent, a changing society, and the interventions within the legal system). It also involves particular players (lawyers) with associated roles, responsibilities, and norms."

Based on the above examination, Wegner believes "that the traditional names associated with these strategies may blind many legal educators to the virtues and limitations of first year pedagogical practices." She thinks, "More conscious use and supplementation of the case-dialogue method can help students to master thinking like a lawyer more effectively, illuminate important aspects of law school assessment practices, and open space for innovation beyond the first year."

Wegner states that "To underscore the relationship between the raw materials (cases) and teaching techniques (dialogue), a new way of naming the traditional pedagogical process is needed." She argues that the "‘case-dialogue method’ more effectively captures the core learning and teaching dynamics that are at the heart of things." "First, instruction in traditional case-based forms of legal reasoning involves helping students master a set of key intellectual tasks associated not only with the law but also with higher-order thinking outside of the law (the intellectual tasks theme). Second, classroom dialogue involves a complex dance in which teachers bring to bear an array of subtle instructional tactics that render visible tacit understandings and misunderstandings much as a skilled artisan might guide an apprentice in the early stages of mastering a craft (the instructional tactics theme)."

Wegner first discusses Intellectual Tasks, Legal Reasoning and the Dynamic of Cases. Karl Llewellyn articulated the core tasks of legal reasoning in The Bramble Bush: 1) knowing and 2) comprehending what a court had decided, 3) analyzing the rule of the case and the court‘s interpretation of evidence, 4) applying precedent to other cases, and fathoming its impact on the real world, 5) relating and synthesizing cases as part of an evaluation of doctrine, and 6) evaluating a court‘s decision in terms of its desirability in broader terms. These correspond to psychologist Benjamin Bloom’s core cognitive capacities: 1) knowledge, 2) comprehension, 3) analysis, 4) application, 5) synthesis, 6) evaluation. Wegner declares, "These distinctive cognitive tasks and associated ‘levels of discussion’ are implicitly dynamic, since each step along the chain of thinking involves a cognitive process in and of itself."

Next, she discusses Instructional Tactics and The Dynamic of Dialogue. The dialogue of professor and students and its underlying dynamic of question and answer, comment and response, have rarely been explored. "The dialogue is part of an ongoing conversation between expert and novice, between master artisan and journeyman who seeks to learn." "In a sense, the dialogue of the legal case-dialogue method is embedded in the context of an apprenticeship system ." "Although the process of development parallels that found in traditional craft apprenticeships, it is less obvious because the complex cognitive patterns of teacher-experts are generally not explicit and are thus difficult for their student-novices to observe." Methods employed by expert teachers include: "‘Modeling’ by making cognition visible; ‘Coaching’ by providing guidance and feedback; ‘Scaffolding’ by providing support for students who have not yet reached the point of mastery; and ‘Fading’ by encouraging students when ready to proceed on their own." Student strategies include: "‘Articulating’ by providing explicit descriptions of their understanding so that it is no longer invisible; ‘Reflecting’ by pausing to consider what they know; and ‘Exploring’ by testing their understanding in next settings in which it might apply."

Bringing the two parts together, "The distinctive dynamics of case-based legal reasoning and dialogue-based instructional interaction come together in important and energizing ways. As professors determine how best to use key cases, they take into account the context of their material, their particular day‘s objectives, and the extent of student mastery given the progress of the academic year. At each step in the process of discussion teachers may adopt different stances of interaction with their students (modeling, coaching, scaffolding, fading), calling forth different student responses as appropriate to an individual‘s or the class‘s overall understanding and needs." Thus, "A deeper understanding of the dynamics of the case-dialogue method provides important insights about the role of that pedagogical approach in encouraging student learning."

Important questions, however, remain. First, "thinking like a lawyer involves an array of sophisticated intellectual tasks that are generally not named or described explicitly, but which correspond to widely-recognized cognitive tasks associated with higher-order thinking often familiar to those students with strong earlier academic preparation and less well-known to others with more non-traditional backgrounds. Would explicitly naming and addressing these issues make a difference in student performance?" Second (analysis), what are the implications of the case-dialogue method with regard to students‘ understandings of other aspects of the law (such as statutes)? Third, (application), "if students are not afforded opportunities to develop skills relating to application of legal principles in complex scenarios, what are the implications for the legitimacy of law exams?" Fourth (synthesis), "students generally receive little formal instruction about or practice in synthesizing complex ideas. . . . [However,] students are often expected to engage in complex synthesis of ideas in order to perform well on law school exams. What is the significance of this disjunction?" Fifth (evaluation), students "are rarely asked to engage in external critiques of the law emphasizing such considerations as fairness or justice, leaving the impression that these topics are of little concern or importance, and providing little chance for them to develop their abilities to evaluate such matters on their own." Sixth (assessment), "faculty members need to give careful attention to how their assessment techniques actually correspond with the intellectual tasks that they expect of students in their first year classrooms."

Wegner concludes that "law schools have historically been weak in articulating their institutional goals, recognizing and confronting comprehensive educational challenges facing their students, and committing to ongoing assessment of the effectiveness of their instructional programs. If it becomes possible to confront wicked problems associated with naming and taking responsibility for student learning, year-by-year and throughout the complete three-year law school program, significant results might be gained. Until law schools are willing to recognize that they must find and name the invisible dimensions of the educational process (as Millie had to name Rumpelstiltskin because her humanity and child‘s welfare depended upon it), it is unlikely that significant improvements in legal education will result."

Before concluding, I would like to stress three of Wegner’s points. First, we need to make legal reasoning explicit. Second, we need to emphasize case synthesis considerably more than we have.  Finally, Wegner's analysis shows the need to teach miniskills in order to help students attain expertise.

(Scott Fruehwald)


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I applaud all serious discussion of how to improve law school outcomes. From my perspective as a teacher in the notorious "fourth year of law school (paid for by law firms and agencies employing newly-minted attorneys)," please consider these two consistent observations from practicing lawyers.

1. Almost every week I hear stories from young associates that they did not participate in class discussion in law school. The same students always spoke up in class, were prepared to talk, and enjoyed the verbal jousting. But many students, including those recounting the story, remained quiet. In effect, they put off having to learn to talk instead of write, assuming it wouldn't be that difficult to learn it later. Whether transactionals or litigators (potential litigators in big firms, since they have little chance of speaking in court), they tell the same story.

2. Practitioners in trial skills training struggle to ask open-ended questions. They simply do not have the proper syntax and grammar on the tips of their tongues. Leading questions are equally challenging. What part of learning to think like lawyers are they learning if they cannot think of the form of questions?

As law schools begin, as you put it here, "recognizing and confronting comprehensive educational challenges facing their students," some of them are simpler than you think. Please help law students speak extemporaneously in plain, vernacular English. Reading and reciting get them nowhere.

Kind regards,
Marsha H.

Posted by: Marsha Hunter | Feb 8, 2012 6:45:35 AM

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