Monday, March 26, 2018
“Start at the Very Beginning”: Mastering Cognitive Skills (Legal Reasoning and Problem-Solving) in the First Year of Law School
As I recently mentioned, the PrawfsBlawg is having a symposium on Mike Madison’s For a New Year: An Invitation Regarding Law, Legal Education, and Imagining the Future. There have been some excellent pieces in the symposium. However, it doesn’t have a lot on the most important aspect of legal education reform–the delivery of instruction to students. I think it is especially important to look at how law schools should deliver instruction in the first year because this provides the basis for everything else.
One of Professor Madison’s five themes is professional preparation. Professional preparation begins with the first year of law school. Musicians began by learning scales and chords. Chess players begin by learning chess moves. Baseball players begin by learning how to bat, throw, and field. Lawyers begin with the cognitive basics of legal reasoning and problem-solving.
Law schools should teach their students the five main types of legal reasoning (rule-based reasoning, reasoning by analogy, distinguishing, synthesis, and policy-based reasoning) at the beginning of the first year, and they should then go into the details of legal reasoning and legal analysis throughout the year. Students cannot master advanced legal skills, such as trial practice, brief writing, negotiating, deposition taking, without first thoroughly absorbing the basics of legal reasoning. After the students have mastered these skills, law schools should then teach how to apply these skills through problem-solving.
Law professors should teach these basic skills through a variety of approaches. The Socratic method and case method are an important part of developing students’ cognitive skills. However, professors should employ additional approaches to fully develop first-year students’ abilities. Active learning is the key. With active learning, students retain more knowledge and can better use that knowledge. Active learning techniques include solving problems in class and formative assessment. Professors should also help their students develop better metacognitive skills and better study techniques. For example, studies have shown that self-testing is much more effective than just re-reading. Similarly, spaced learning (studying material throughout the term) is much more effective than cramming.
Professors should also teach their students how to read critically. Reading is thinking; reading is a process. Engaged readers divide reading into three stages: forethought, performance, reflection. The forethought stage involves task perception, self-efficacy, self-motivation, goal setting, and strategic planning. Most important for this stage is identifying the purpose of the reading, putting the reading in context (relating it to prior knowledge), and devising a strategy for the reading. The performance stage encompasses three processes: (1) “attention-focusing,” (2) “the activity itself,” and (3) the “self-monitoring” the student performs while implementing her strategies and understanding the text. In the final stage, readers critically reflect on what they’ve read and consider the implications of the reading. In all these stages the reader should reflect on what they are reading, relate the reading to prior knowledge, and challenge the author. It is particularly important while reading cases to identify the type of reasoning the judge is using and to consider alternatives to the judge’s arguments.
In most areas of human success, this success begins by mastering the basics. You can’t build a strong building without a firm foundation. The first year of law school is the most important one for twenty-first century attorneys.