Friday, October 31, 2014
This is a new article from Professors Stephen Colbran (School of Business & Law at CQUniversity, Australia) and Anthony Gilding (Business Economics and Law, La Trobe University, Melbourne, Australia) and available at 63 J. Legal Educ. 405 (2014). From the introduction:
Whereas the capacity to grow and distribute food defined the agrarian economy, and the capacity to manufacture and distribute goods defined the industrial economy, the capacity to create and apply knowledge defines the post-industrial digital economy. In this context, sustainable prosperity depends on a society's capacity to create and apply knowledge to solve problems.
Universities continually look at quality assurance processes and the use of new technologies to increase participation and improve student outcomes. The combination of traditional practice associated with aging legal academics, the demands of digital natives and the ability of new technologies to disrupt accepted practices suggests that new teaching modes are needed. The situation is no starker than that presented by the advent of MOOCs--Massive Open Online Courses.
While it is not suggested that legal education in general will be provided through open online courses with participants numbering in the hundreds of thousands, these courses provide an opportunity to explore how universities, law schools and academic staff may change the way they teach and relate to students. Similarly the learning relationships between students also may change as a consequence of the new paradigm.
The adoption of broad teaching standards as part of quality assurance processes will result in aspects of teaching practice, curriculum development and the student learning environment becoming increasingly more public and transparent. It is likely new teaching models will need to both inform and conform to any framework of teaching standards adopted across the sector.
Initially, beyond political and social reasons, MOOCs may not seem an attractive option, especially to members of law teaching staffs who face ever increasing demands on their time, not least of which is research. However, there are many reasons why those engaged in legal education may want to develop these online courses across the higher education sector including:
• Marketing to potential future students. MOOCs increase exposure to potential students because the resources of the courses are open to all who may want to register. There is no requirement to complete assessment tasks unless the student is enrolled in an accredited program associated with the online course.
• Community engagement and outreach programs. Such programs often are designed to increase participation in higher education, especially for designated equity groups. MOOCs may provide potential students with greater exposure to legal education. Rather than just being a simple marketing strategy, the support provided through these online classes may include strategies targeting groups of students with different motivations for participation.
• Reputation building. Successful MOOCs may build individual, school and university reputations for providing quality legal advice and criticism within supportive and effective learning environments that foster the development of ongoing professional networks.
• Alumni development. For alumni, MOOCs provide a way of mentoring students and maintaining professional connections with their university and its teaching staff. It can be an avenue for giving back.
• Interaction with professional continuing legal education. The online concept suits continuing education since learning resources may be provided in a setting in which participants assemble professional networks to provide a forum for discussion of contemporary issues in the law. There is potential for a credentialed online course to provide mandatory continuing legal education points and cross-credit for higher legal qualifications.
• Networking and profile building. A MOOC provides participants with an opportunity to build extensive professional networks and specialties. Through the quality of their contributions to the professional network, participants can build a profile of their own work and that of their organization.
• Developing foundational skills. The open resources available through the online course, built on Web 3.0 tools, provide an opportunity for participants to develop literacies and skills fundamental to success in accredited legal programs. Web 3.0, or the semantic web as it is also known, moves from current unstructured or partially structured content to automated location, sharing and combination of vast quantities of otherwise inaccessible data. Participants can use the learning resources repeatedly until they demonstrate the competencies underlying success in the conventional legal curriculum.
• Try before you buy. MOOCs provide potential students with an opportunity to experience a course about the law before paying for and attending an accredited course. Reputations will be on the line as the quality of teaching materials and staff expertise are plain for all to see.
• Internationalization. MOOCs have the potential to establish links between law schools nationally and internationally. Imagine online courses featuring international experts from diverse cultures.
• Promoting access to justice. Online courses on certain topics may encourage access to justice by providing skills and knowledge that otherwise could only be obtained from a lawyer for a fee.
• Demystifying the law. MOOCs' ability to reach a wide audience combined with topics in plain English will help expose laymen to the law, potentially peeling back millennia of legal jargon and practice. The potential for enhancing access to justice should not be ignored.
There is little doubt that modern learning models are challenging for both student and teacher. But this question remains: How will law schools adapt to these changes?
From Daily Worth:
Recent research from the University of British Columbia found that narcissists are more successful in job interviews than their more modest counterparts. In the study, 72 participants responded to a questionnaire measuring their levels of narcissism and then were videotaped as they simulated being interviewed for a job. The videos were later evaluated by 222 raters, who appraised the self-promoters as the most attractive applicants.
This posting (here) offers tips on making eye contact, using good body language, being upbeat, interviewing the interviewer, highlighting accomplishments, and deflecting weakspots.
Thursday, October 30, 2014
How to Be the World's Best Law Professor by Warren Binford.
Abstract: This essay is based on a TedX-style presentation at the 2014 Ignite Law Teaching Conference organized by LegalED and hosted at American University Washington College of Law. The presentation summarized some of the latest and most consistent findings in educational research about which teaching and learning methods increase retention and comprehension and which ones do not, and then compared them to the dominant methods used in legal education. The results challenge legal educators who are committed to their students' success to reconsider their own teaching practices, their advice to students regarding effective study methods, as well as the current structure of legal education overall.
At Vitae, David Gooblar offers his choices in annotated form.
As law professors, we can find ourselves limited to resources designed for the law school community. This list, aimed at the undergraduate level, permits us to expand our horizons and perhaps come across new ideas. You can access the list here
Wednesday, October 29, 2014
California Bar soliciting public comment on new competency skills training requirements for law students/grads
You can find the Report of the Task Force of the California Bar on Admissions Regulation Reforms here (setting forth the proposal which includes enhanced skills training during law school, a 50 hour mandatory pro bono requirement, and post-bar admission competency training). Comments on the proposed requirements are due November 3, 2014 via the State Bar of California website. The California Bar Journal provides more details:
The Board of Trustees is seeking public comment on a draft plan to implement new competency skills training requirements aimed at better preparing lawyers for the profession.
The proposal calls for:
- 15 units of practice-based experiential training during law school/apprenticeship option
- 50 hours of pro bono/reduced fee legal services
- 10 hours of additional competency training MCLE (minimum continuing legal education) in the first year of admission
The plan was developed by the Task Force on Admissions Regulation Reform Phase II, a 30-member panel chaired by former State Bar President Jon B. Streeter and comprised of attorneys, judges, academics and pro bono directors. Since December, the group has held eight public hearings and sought input from interested parties.
“This is a major milestone for this task force,” State Bar President Craig Holden said after the board’s executive committee authorized the public comment Sept. 29. “I look forward to getting the public’s input on this.”
Comments are due Nov. 3 and may be submitted via email email@example.com or mailed to Teri Greenman, Executive Offices, The State Bar of California, 845 S. Figueroa St., 5th Floor, Los Angeles, CA 90017.
The board is expected to take up the issue at its next meeting, Nov. 6-7 in San Francisco.
The bar first began moving toward requiring more practical skills training for admission to the bar in February 2012, when the board created the Task Force on Admissions Regulation Reform Phase I, also chaired by Streeter.
The ranking is out (for what it’s worth). Here are the top ten:
United States Cambridge, MA
United States Cambridge, MA
United States Berkeley, CA
United States Stanford, CA
United Kingdom Oxford
United Kingdom Cambridge
United States Pasadena, CA
United States Los Angeles, CA
United States Chicago, IL
United States New York, NY
You can find more here.
The switch would also make it easier for lawyers to move in and out of New York without having to take tests anywhere else. The proposal is known as the Uniform Bar Examination and it is used by 14 states right now. The New York Court of Appeals will weigh the pros and cons of switching to this test. A lawyer who passes the uniform test in one state is permitted to transfer the score they earn to another jurisdiction that participates in the test, but there are some exceptions.
Should New York accept the proposal, it would triple the number of people taking the uniform test in the country. The New York Court of Appeals will vote on the plan following a public comment period that comes to a conclusion in November.
“New York would be a national leader as the first large state in terms of bar applicants to administer this test,” states the proposal by the New York State Board of Law Examiners.
You can read more here.
Tuesday, October 28, 2014
On how to succeed from day one. A digital version of this Special Report from the NYLJ is available here. Below is an index and synopsis of the articles included.
Gillad Matiteyahu, an associate at Cadwalader, Wickersham & Taft, describes how to make the most of your first year by setting goals, improving your networking skills, and using the latest technological tools that can increase your efficiency and lifehack your career.
Allegra J. Lawrence-Hardy, a partner at Sutherland Asbill & Brennan, writes: Use visibility as an opportunity. Being authentic and cultivating self-awareness is a cornerstone of business development.
Jamie Diaferia, president of Infinite Spada, and Jesse Dungan, a client supervisor with the company, write: In this new and different post-recession legal landscape, the need for young attorneys to market themselves is essential.
William T. McCaffery, a partner at L'Abbate, Balkan, Colavita & Contini in Garden City, writes: Any attorney can elevate the level of his own practice by adhering to some basic principles like honesty, hard work, and determination.
Why do people confuse the two? “Its” is possessive, like “his” and “hers.”
The pen is his.
The book is hers.
The company went bankrupt. Its president has disappeared.
“It’s” is a contraction, meaning “It is”
It’s a problem.
It’s cold outside.
Here’s the best shorthand advice:
In formal writing, we do not use contractions. Therefore, you will not use “it’s” except when quoting dialogue. Otherwise, you will use “its.”
Monday, October 27, 2014
In the second part of her book, Marybeth Herald discusses the decision-making process and the brain’s flaws that affect that process, based on recent discoveries by cognitive scientists. She points out that "[h]uman beings . . . are not always rational decision-makers." Because part of a lawyer’s job is to persuade judges, juries, and others, law students need to learn about the brain’s built in biases, including their own. She writes, "The ability to understand the intricacies of human decision-making is an essential, but largely unexamined, skill required of the successful lawyer."
Because the brain generally works fast, it can miss important details and the nuances of an idea. In other words, the brain filters. This is very important to lawyers since cases are won or lost on the details. Herald advises,"To avoid missing the details, you have to be willing to take the time to read carefully, examine assumptions, and contrast any dissenting opinions."
Another problem with our brains is that humans rely too much on gut reactions. Herald notes, "Gut reactions may be based on stereotypes, cognitive biases (as described below), or incomplete information that can lead you too the wrong conclusion in law school and legal practice." She continues, "Although most students have gut reactions to cases involving the death penalty, abortion, and flag burning, when forced to articulate the reasoning behind the stance, simple inconsistencies or gapping holes in reasoning may be exposed because many relevant factors have not been considered." Herald thinks that "a more skeptical attitude can help you uncover hidden and perhaps incorrect assumptions across a variety of issues."
Herald then discusses cognitive biases that can lead one’s thinking astray, including 1) the framing bias, 2) the egocentric bias, 3) the confirmation bias, selective perception, and rationalization, and 4) the availability bias. Herald asserts that "[u]nderstanding our thought processes is critical to success in both law school and practice in order to avoid falling prey to erroneous assumptions that could lead you and your clients astray within the legal system."
How a problem is framed affects our perception of that problem. Herald defines frames as "mental models that provide a starting point for our brains to assess an abstract problem." She adds, "Framing is important for law students to understand because lawyers are in the business of shaping preferences of clients, opposing counsel, legislatures, juries, and judges." Understanding the framing bias helps one overcome its effects. Moreover, understanding framing helps a lawyer be persuasive in his or her own arguments. Herald writes, "Both sides may work with the same basic facts and law, but will use different angles of reference to shape preferences. When seeking to persuade, you know what answer you want, and now you need to work backward to the necessary question."
With the egocentric bias, an individual believes that he or she is "less likely to be biased than others are." Herald suggests that "[t]o avoid being blindsided by the bias, successful attorneys must be aware of not only their own bias, but everyone else’s egocentric bias." It is especially important to manage one’s clients’ biases.
A confirmation bias is "the tendency to seek out evidence that confirms our pre-existing beliefs." While the confirmation bias keeps us happy, an attorney must search for contrary evidence in order to make accurate decisions. As Herald points out, "[t]he inability to see the other side (or sides) of the story could be a big problem in both law school . . . and law practice. . ."
Finally, the availability bias occurs when individuals make decisions based on information that is the most psychologically available to recall. It "leads us to estimate the frequency or probability of an event based on how easy or difficult it is to imagine the event occurring." Herald warns, "With knowledge of the availability bias, we should be cautious of making decisions that draw on anecdotal experience versus reliable and valid studies lacking these stories." Of course, judges and jurors also frequently suffer from the availability bias. "Awareness of the availability bias allows a lawyer to more effectively tailor arguments on the behalf of clients."
Like the first part of the book, the second part on decision-making clearly presents difficult subject matter for law students. While a great deal has been published on this subject, Herald’s book is the first to comprehensibly address this material to law students and show how these insights of brain science apply to learning and practicing the law. Considering that lawyers must deal with decision-making every day, law students need to learn how the mind makes decisions and the flaws in that process.
Herald best summarizes why her book is important:
"[I]t is critical to get your brain on board for the project. If you do not have a grasp of your brain’s operating systems, you lose control of the journey. Be the pilot, not the passenger as you navigate law school."
Indeed it can according to a new study, partly funded by Mars bar, published in the Journal of Nature Neuroscience as reported by the New York Times. According to the study, which was headed by a Columbia University Medical Center neurologist, participants ranging in age from 50 to 69 who drank a mixture of antioxidants found in chocolate called cocoa flavanols performed on memory tests the equivalent of people who were 20 to 30 years younger. Participants also showed improvement in pattern recognition functions like remembering faces or where the car is parked. To get the same results yourself, however, you'd have to start mainlining 300 grams of dark chocolate per day, for 3 months straight. That's the equivalent of 7 dark chocolate bars per day or, alternatively, you could start chugging 100 grams of baking chocolate or unsweetened cocoa powder each day for 90 days straight. Hey, I like chocolate too but in this case I think I'll deal with the memory loss instead.
You can check out the full story via the New York Times here.
And check out Mars Center for Cocoa Science here - who knew?
Recently, I posted information about the latest scandal involving the Pennsylvania Supreme Court (here). Now, Justice Seamus McCaffery, the center of the controversy, has resigned. Here are excerpts from the report by the Philadelphia Daily News:
Seamus McCaffery, a former Philadelphia police officer elected in 2007 to the state's highest court, is retiring today, one week after four of his fellow justices voted to suspend him from the bench.
McCaffery, 64, has been in a long and rancorous feud with fellow Philadelphian, Chief Justice Ron Castille, who must step down on Dec. 31 because he has reached the mandatory retirement age of 70.
Castille was one of the four votes to suspend McCaffery last Monday after another justice, J. Michael Eakin all but accused McCaffery of extortion a week before.
McCaffery was snared in the porn scandal that has been blossoming at the state Attorney General's Office, leading to the resignations of four former top deputies to Gov. Corbett.
You can read more here.
This scandal is just the latest in a series that has arisen in the Pennsylvania judicial system. In my opinion, a major cause is a system that elects judges by popular vote. I also blame a state political structure that gives so much power to the court system without sufficient checks. I am not in a position to determine whether Pennsylvania’s political culture is more unfortunate than that of other states.
According to empirical research, the answer is yes. Articles with either an abstract or a table of contents generate more citations. Articles with both generate even more. Here is the abstract of the article, Should Your Law Review Article Have an Abstract and Table of Contents?, by Lee Petherbridge & Christopher Anthony Cotropia:
To explore whether abstracts and tables of contents impact the scholarly influence of academic work in the field of legal studies we analyze the impact of these document elements on citation to articles published in top 100 law reviews. We observe that on average both abstracts and tables of contents associate with large increases in scholarly influence. Compared to articles that use neither document element, articles that include just an abstract are cited on average roughly 50% more, and articles that include just a table of contents roughly 30% more. Including both document elements corresponds to the largest increase in citation, over 70%. The Article discusses the title question, and in view of the magnitude and persistence of document element effects and evidence indicating that document elements offer an independent explanation of scholarly influence, answers it in the affirmative. It concludes by offering a hypothesis capable of explaining the effects of abstracts and tables of contents. Specifically, that both of these document elements work by reducing cognitive burdens researchers experience when performing research tasks, although sometimes in different ways.
Sunday, October 26, 2014
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.
Some of our readers may not be aware that the ABA Student Lawyer Division maintains one-stop website with information about the four annual law student practical legal skills competitions it sponsors including the Arbitration Competition, the Client Counseling Competition, the National Appellate Advocacy Competition, the Negotiation Competition. The website includes everything you need to know about each of these competitions with links to designated homepages for each one. You can find entry forms, deadlines, information about buying videos of the national championship rounds (which include the judges' evaluations) as well as links to the list of national champions, regional champions, team and individual rankings from the previous year. Check it all out here.
Yes, U.S. News will extend its tentacles farther on October 28.. Here are excerpts from its announcement:
The 2015 Best Global Universities rankings will show which universities are the best globally, as well as those that are highly ranked in certain countries and regions and are leaders in key academic subject areas. These new rankings – which focus specifically on schools' academic research and reputation overall and not their separate undergraduate or graduate programs – will allow prospective students to accurately compare institutions around the world.
To produce the rankings, which are powered by Thomson Reuters InCitesTM research analytics solutions, U.S. News will use a methodology that focuses on factors that measure research performance. Specifically, the ranking indicators will include those that measure a university's global and regional reputation; academic research performance using bibliometric indicators such as citations and publications; and school-level data on faculty and Ph.D. graduates.
The overall Best Global Universities rankings will encompass the top 500 universities spread out across 49 countries. In addition, U.S. News will publish four regional rankings that will show the top universities in Europe, Asia, Australia/New Zealand and Latin America. There will also be country-specific rankings highlighting the top schools in 11 countries with a large number of ranked schools: Canada, China, France, Germany, Italy, Japan, Netherlands, South Korea, Spain, Sweden and United Kingdom.
You can read more here. Can’t wait.
When assigning legal writing assignments, I have found it helpful to ask the students to include a commentary explaining why they wrote the assignment the way they did. For example, did they have trouble with their large scale organization? Did they have trouble with the content? How did they resolve any difficult challenges? Did they like the assignment?
Without a commentary, I may think that a student did a miserable job. With a commentary, I may realize that their work product was the result of considerable reflection. I also may learn that the student misunderstood my directions or something that I taught and that I need to do a better job.
Saturday, October 25, 2014
At a recent symposium at my school, Professor Kevin Walsh, a former SCOTUS clerk, offered advice on getting the Court and its clerks to pay attention to your amicus brief.
Today, the Court receives an enormous number of amicus briefs, many simply repeat the arguments in the main briefs. They get minimal attention. As an advocate, your job is to get the Court's readers to realize immediately that your brief has something significant to offer. How? Draft the Table of Contents to get the Court's attention.
I always have told students to view every part of a brief as an effort at advocacy. I have emphasized the importance of the Summary of Argument. I now also will encourage them to pay particular attention to the Table of Contents.