Legal Skills Prof Blog

Monday, February 29, 2016

Self-Formative Assessment Texts

Last week, I wrote about two posts by Professor David Thomson on formative assessment. (here) Formative assessment in law classes has recently become an important topic because education researchers have discovered its usefulness in better educating students and because the ABA is implementing a new standard that requires formative assessment in law school. The biggest problem with formative assessment is that it is time intensive for law professors. I propose "self-formative texts" (texts with exercises and answers) to correct part of this problem.

First, I am not proposing that students be given simple multiple-choice tests with the only feedback being the correct letter answer. Such tests do students little good. As Professor Thomson wrote in his posts, "It seems to me that all of the automated tools provided by vendors – such 'formative assessment tools' seem to be the current hot item in the law school publishing space - will inevitably fall short of the true meaning of the term 'formative assessment.'"

Rather, I propose a new type of textbook that uses self-formative assessment exercises to help students develop their legal reasoning and legal problem-solving skills. It is based on the discovery that students need many exercises in a skill to master that skill and that some skills are part of more complicated ones. In addition, students need practice and feedback in combination, and they need it at the proper time.

Others have written about the need for formative assessment: “Continuous evaluation is the most powerful way to maintain, expand and enhance professional competence.” (Margareta Wilhelmsson et.al., How to Think about Interprofessional Competence: A Metacognitive Model, 26 Journal of Interprofessional Care 2, 9-10 (2012)) Likewise, “The purpose of feedback is to help learners achieve a desired level of performance.” (Susan Ambrose et.al., How Learning Works: 7 Research-Based Principles for Smart Teaching 137 (2010)) “[M]ore frequent feedback leads to more efficient learning because it helps students stay on track and address their errors before they become entrenched.” “Generally speaking, both professors and students underestimate the need for practice.” (Id. at 135)

Moreover, as Best Practices has observed, “It takes time to develop expertise in legal problem-solving. Problem-solving skills can be developed only by actually working through the process of resolving problems. Developing problem-solving expertise requires repetitions of ‘training’ as against the hard world of consequences, of repeated success and failure, and some inductive efforts at understanding what works and what does not, what seems important and what does not.” Similarly, "Practicing or rehearsing improves retention, especially when it is distributed practice. By distributing practices, the learner associates the material with many different contexts rather than the one context afforded by mass practice." (Karen J. Sneddon, Beyond Chalk and Talk: The Law Classroom of the Future, 38 Ohio N. U. L. Rev. 257, 266 (2011))

In addition, formative assessment should develop all stages of Bloom's Taxonomy: 1) remember, 2) understand, 3) apply, 4) analyze, 5) evaluate, and 6) create.

Over the last three years, I have written three self-formative texts: Think Like A Lawyer: Legal Reasoning For Law Students and Business Professionals (ABA Pub. 2013), Legal Writing Exercises: A Practical Guide to Clear and Persuasive Writing for Lawyers (ABA Pub. 2014), and A Companion to Torts: How to Think Like A Torts Lawyer (2015). In these books, I developed a wide-variety of exercises based on Bloom's Taxonomy in order to help students develop long-term memory, create connections among ideas, and perfect skills.

Types of exercises:

Retrieval Exercises, a type of self-testing, requiring students to retrieve knowledge from long-term memory. Retrieval exercises can be simple questions.
Examples:
Question. Write down the elements of negligence.
Question. What are the defenses to battery?
Questions will become more complex as the semester progresses.
Example:
Question. Make a chart with all the intentional torts and all the defenses to each tort. (Ex. Battery: consent, necessity, defense of others, etc.) Try to do this drawing based only on your memory.
Issue Spotting is the foundational skill for first-year law students because it helps them identify the essential features of the analysis. While traditional Socratic classes do teach issue spotting, many students struggle with this skill because they have to learn it within long cases. Having short issue-spotting exercises would help many law students become proficient with this skill more quickly. Practice makes perfect.
Legal Reasoning Exercises: Legal reasoning divides into five miniskills: 1) rule-based reasoning (deductive reasoning), 2) analogical reasoning, 3) distinguishing cases, 4) synthesis (inductive reasoning), and 5) policy-based reasoning. Students need to do many exercises in all five types of legal reasoning in order to become competent legal problem solvers.
One way to help your students understand the five types of legal reasoning is to require them to identify the type or types of legal reasoning a judge is using when they read a case. The students should do so in detail, for example, showing how the reasoning by analogy works. They should also evaluate whether the judge used the legal reasoning technique convincingly. Other examples:
Problem. Label the following types of legal reasoning.
1. A contract requires an offer and an acceptance to be binding. In this case, the plaintiff’s letter of July 15 was an offer, and the defendant’s phone call on July 16 accepted that offer. Thus, the contract was binding.
2. Smith held that someone who grabs a hat out of another person’s hand can be liable for battery. In our case, the defendant grabbed a plate out of our client’s hand, which is like grabbing a hat out of a person’s hand. Therefore, the defendant should be liable for battery.
Multiple Choice Exercises:
You can also create legal reasoning or retrieval exercises as multiple choice exercises.
Examples:
Problem. Choose the best answer. Peggy complained several times about a broken lock on her apartment building’s front door. Despite the fact that he knew the building was in a dangerous neighborhood, the landlord failed to fix the lock. Sven, a resident of the building, propped open the front door of the apartment door as he was moving out. While the door was propped open, a thief entered the building and stole Peggy’s television and computer. Can Peggy recover from her landlord for negligence?
A. No. A landlord does not owe a duty to his tenants to protect their property.
B. No. Sven’s negligence was a superceding cause.
C. No. Peggy should have bought a better lock for her door.
D. Yes. In most jurisdictions, a landlord is strictly liable for the safety of his tenants.
Exercises with Specific Types of Legal Reasoning:
A. Rule-based reasoning: Rule-based reasoning involves applying a rule (a statute, a case holding, or an administrative regulation) to a set of facts. Examples: Application Exercises (Rule-Based Reasoning): Application exercises are a type of rule-based reasoning. Application exercises present students a short factual scenario and require them to apply their legal knowledge to answer a question concerning the facts. In other words, they are mini problem-solving exercises.
B. Analogical Reasoning Exercises: Reasoning by analogy involves finding similarities (comparison of the specific to the specific). With legal reasoning by analogy, one argues that the facts of the precedent case are like the facts of the current case so that the rule of the precedent case should apply to the current case. (A lawyer can also argue using analogy between policies.) Because two cases are rarely exactly the same, one must convince the reader that the facts of the two cases are similar enough that the rule from the precedent case should apply to the present one. There are several ways to structure analogical reasoning exercises.
C. Distinguishing Cases: In distinguishing cases, one argues that the facts of the precedent case are not like the facts of the present case so that the rule from the precedent case does not apply to the present case. In other words, it is the opposite of analogical reasoning. As with analogical reasoning, it is a question of degree. Being able to see subtle differences (discrimination skills), as is required with distinguishing cases, is a key skill in the ability to organize knowledge.
D. Synthesis Exercises: Rule synthesis involves using holdings from several related cases to come up with a general rule. It is a type of inductive reasoning (going from the specific to the general). The law is like a jigsaw puzzle, and a lawyer must assemble the pieces. To synthesize a rule, you should look at the similarities among the facts of the precedent cases and the differences among the facts of those cases. You should also look at the reasoning behind the holdings.
E. Policy-Based Reasoning: With policy-based reasoning, the lawyer argues that applying a particular rule to a case would create a precedent that is good for society. For example, in early products liability cases, lawyers argued for strict liability when a product injured a consumer because manufacturers could better spread the cost of injuries than consumers. One can also use policy-based reasoning with reasoning by analogy. For instance, one could argue that the policy behind the rule in the precedent case also applies to the present case so the rule from the precedent case should also apply to the present case.
Reflection Questions: Reflection questions (a type of elaborative interrogation) help students think about why certain rules exist or why certain policies exist. They help students develop the ability to see the deep features of organization. Examples:
Question. Why is consent a defense to an intentional tort?
Question. Why do courts use a reasonable person standard for negligence? Would a subjective standard be better? Why or why not?
Miscellaneous Exercises: You can be creative with the type of exercise you use for particular content.
Examples: Exercise. Identify the Defense. Identify the defense or doctrine for the following hypos (contributory negligence, last clear chance, pure comparative negligence, modified comparative negligence, assumption of risk, failure to mitigate, automobile guest statute). Exercise: Relating Concepts
1. Are there any contract doctrines that resemble strict liability?
2. Are there any criminal law doctrines that resemble tort strict liability?
Metacognitive Questions: Metacognition involves understanding how one thinks–the cognitive processes that a person uses when they are undertaking a mental task. Examples.
1. Do you think about how you study? Are your study methods effective?
2. How do you prepare for torts class? After doing so, do you feel prepared for class?
3. What do you do after class? Do you review your notes? Write in a journal? Relate what you have learned in this class to earlier classes? Reflect on what you’ve learn? Do you create visual learning tools (graphic organizers) to help you study?
4. Do I always have clear goals when I tackle a problem?
5. Do I have an effective case analysis strategy?
6. What would my legal writing professor think about how I have written up my analysis?
7. How would an opposing lawyer attack my arguments?
8. Do I set learning goals?
9. Do I use different learning techniques depending on the situation?
10. Do you critically assess what is being said in class, or do you just try to absorb it?
Problem-Solving Exercises: Complex problem-solving exercises bring the above exercises together.

These are just some of the examples of the types of exercises a textbook could use for self-formative assessment. Toady's law students need more practice in legal reasoning and problem solving.

Some may think that having a textbook on torts or contracts with exercises to the extent advocated above is “overdoing it.” However, cognitive psychologists and learning specialists would disagree. As Professor Ambrose and her colleagues have observed, “Generally speaking, both professors and students underestimate the need for practice.” (Ambrose at 135)

(Scott Fruehwald)

P.S. Most U.S. law libraries own at least one of my books.

February 29, 2016 | Permalink | Comments (0)

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