Sunday, October 26, 2014

Book Review: Your Brain and Law School: A Context and Practice Book by Marybeth Herald I

Traditional legal education does not provide law students with the best way of learning the law.   In fact, one might say that traditional legal education hinders, rather than helps, law student learning.  Traditional law school teaching is based on methods that are over one hundred years old, and it ignores the advances that have been made in cognitive psychology and learning theory over the last thirty years.

A few of us in legal education reform have proposed teaching methods for law schools that draw on cognitive psychology and educational scholarship from other fields.  (e.g., here, here, and here)  Now, Marybeth Herald has taken this one step further: she has written a book for law students explaining how the brain learns and makes decisions and how these insights affect how students should approach law school.

Your Brain and Law School: A Context and Practice Book

(Carolina Academic Press 2014).

Professor Herald explains why she wrote this book: "Mastering the art of thinking like a lawyer requires some knowledge about the fundamentals of learning and thinking.  This book explains those fundamentals in the specific context of law school."  She continues, "knowledge of the learning process is a powerful tool."  "Not only is this information important for successfully navigating law school, but law practice requires lifelong learning. The sooner you understand the fundamental principles of how humans learn, the easier it will be to use these principles as you master any number of subjects in practice."  More specifically, "If you know and understand the process of learning and thinking— known as metacognition— you can use the best methods to survive and thrive in law school, even when others perceive law school as a threat to sanity. Rather than following or ignoring advice for law students (brief cases, don’t waste your time, make an outline, buy a commercial outline), you need to understand how your brain learns a new skill set and then devise a plan to maximize its potential. Moreover, if you understand why you should do certain things, you will have an incentive to do them, even when difficult, while your confused colleagues muddle through the process hoping for insight miraculously to descend upon them."  In other words, "If you understand why certain strategies are a waste of time, you will be able to work smarter."

Professor Herald covers two main topics in her book: 1) how your brain learns and 2) how the brain makes decisions.  This post will cover the first topic.  Tomorrow’s post will deal with the second one.

Professor Herald first discusses Daniel Kahneman’s distinction between the brain’s System 1 ("the brain’s quick intuitive mode") and System 2 ("the brain’s thoughtful mode.") She argues that one of the keys to succeeding in law school is to resist the easier pathways of System 1.  For example, students should fight the temptation to use "canned briefs" because briefing cases improves learning and analytical skills.  In fact, new learning actually changes the brain; "[y]our brain is refining the synaptic connections that allow you to perform this analytical work more easily."  In other words, by doing the hard work of case briefing using System 2, case briefing become automated, allowing the student to move on to more difficult tasks.

She also discusses Carol Dweck’s notion of the "Growth Mindset"–that a person can "grow" their brain through hard work and deliberate practice.  She notes that "attributing poor performance to a lack of ability begins a downward spiral [the Fixed Mindset]."  Instead, education researchers believe that "talent is overrated, and deliberate practice is often the less visible trait of a star."  She asserts, "Active participation in a process is crucial.  It is not possible to retain it if we don’t use it."  She adds, "Working on practice problems forces you to articulate your analysis."  

Professor Herald uses the Growth Mindset to give students advice on how they should deal with pre-class, in-class, and post-class periods.  Pre-class time is important because when writing briefs, "the brain has to process the information to write it and pay attention to it."  Similarly, class time offers "numerous opportunities to re-encode the information in our brain."  "It aims to bring out the nuances, problems, and difficulties with the reasoning."  In other words, students "have to engage System 2 thinking and justify the different result[s]." Finally she advises students to review a class’s material within 24 hours because "after 24 hours, the brain begins to lose the ability to retrieve the meaning of the material."  ("The curve of forgetting")

Professor Herald next presents the higher steps of reasoning of Bloom’s taxonomy–Remembering, Understanding, Applying, Analyzing, Evaluating, and Creating.  She emphasizes that learning is more than memorizing.  She analogizes learning the law to learning to drive: "[t]he point here is that you went through a series of steps beyond remembering rules to become a skilled driver."  She states that learners can make memorizing easier by actively engaging with the material.  She also shows students how to organize material by using schemas, and she urges students to make their own outlines of classes.  Finally, she discusses "chunking"–breaking material into small, related pieces, then logically linking the chunks for easy retrieval.

Professor Herald’s final topic for this section is testing and feedback.  She asserts that "Testing yourself–long before the professor even mentions it–will help you ace the class assessment."  She points out that "testing yourself on the application of these rules and your ability to analyze them in different situations offers the best opportunity to learn rules effectively."

Professor Herald advises students to seek out feedback.  She notes that "[c]ontinually embracing mistakes is a valuable key to success. . ."  Rather than fearing mistakes, students should understand that "[t]hroughout a successful learning process, mistakes will be made.  The change in tactics is to make them earlier rather than later, on practice exams rather than midterms, on midterms rather than finals, in law school rather than in practice."

In the first part of her book, Professor Herald has accomplished exactly what she set out to do–help students understand how the brain works and educational theory based on this process to help students become better learners.  She also helps students understand why difficult practices, such as case briefing and class outlining, are necessary for students to achieve their goals, which helps motivate them to do these things.

Professor Herald does the above in a clear and interesting manner.  While the material she discusses is difficult, students will have no problem understanding it because of the way she presents it.  Her presentation of cognitive psychology and learning theory is based on the latest research, and it gives an accurate picture of knowledge in those areas.  Professor Herald could have given a few more details in places, but more details might have interfered with her book’s clarity.

I hope that first year law professors will recommend Your Brain and Law School to their students.  I believe that students who read this book will have a significant advantage over those students who don’t.  Law professors should read this book, too.  It will teach them a few things about how they should be teaching their students.

(Scott Fruehwald)

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