The Effect of Indeterminacy on Transfer and its Importance for Legal Education

My major criticism of current legal education is that the way it is taught does not allow easy knowledge and skills transfer to the domain of law practice.  Legal education mainly teaches students to be appellate lawyers and legal philosophers. The typical lawyer is not an appellate lawyer or a philosopher. Thus, law schools do not teach their students in a way that is best for the knowledge retrieval they will need as practicing attorneys. For example, students learn contract principles in law school, but the typical first-year contracts class does not teach students how to use this knowledge to draft a contract. When a lawyer starts to draft contracts in practice, she will be lost because of the way she has contract law stored in her long-term memory. In other words, the way that contract law is stored in a law student’s long-term memory does not transfer well to drafting contracts. Similarly, Torts may help a student write an appellate brief on a torts question, but the typical Torts class does not provide the knowledge organization to make it easy to draft interrogatories in a torts case. The torts doctrine is not organized in a manner in long-term memory that will transfer easily to drafting interrogatories.  (here)

Joshua D. Kahn & Erik James Girvan have undertaken a study of how indeterminacy affects transfer: Applying Rules and Standards Accurately: Indeterminacy and Transfer Among Adult Learners.  I cannot overstate how important this study is and how it can be used as a model for the study of effectiveness of legal education methods.

Abstract:     

"This paper introduces the construct of indeterminacy and describes its effects on transfer in adult education. Indeterminacy is characterized as a type of stimulus-response relationship in which the stimulus evokes a response that requires secondary and/or ongoing judgments as opposed to evoking a concrete, pre-determined response. Following a brief overview of research on transfer in which we highlight the neglect of a systematic study of the construct, we review extant literature from different disciplines in which indeterminacy has been recognized as playing an important role. During this process, we distinguish it from uncertainty and ambiguity. Based upon the review, we hypothesize and provide empirical evidence suggesting that indeterminacy diminishes transfer. On this basis, we argue that understanding, measuring, and controlling indeterminacy is important for the study and design of effective adult education programs."

 

Excerpts:

 

"In professional contexts, transfer has been defined as a 'learned behavior that must be generalized to the job context and maintained over a period of time on the job.'"

 

"The above examples illustrate commonplace situations in which people are expected to apply instruction on how to make discretionary judgments in a different setting from which they were trained. That is, they are expected to transfer what they learn."

 

"Based upon the review, we hypothesize and provide empirical evidence suggesting that indeterminacy diminishes transfer. On this basis, we argue that understanding, measuring, and controlling indeterminacy is important for the study and design of effective adult education programs."

 

(Scott Fruehwald)