Saturday, January 26, 2019

Developing a more pedagogically powerful and professionally authentic first-year learning experience

That's the topic addressed in a new article by Professor Jennifer Spreng (Saint Mary's) entitled  Suppose The Class Began The Day The Case Walked in The Door: Accepting Standard 314's Invitation To Imagine A More Powerful, Professionally Authentic First-Year Learning Experience and available at 95 U. Det. Mercy L. Rev. 421 (2018). From the introduction:

It is the first day of the first term of the first year. The professor announces: a new client has an initial consult in two weeks. The class needs to prepare.
So, meet Lee Taylor!
Uh, no ... not the picture of the woman in the wedding dress. That's not Lee. That is an ad from Southern Living magazine for the fictional blockbuster prescription diet drug, Aspire. Lee is a forty-something mother whose doctor prescribed Aspire to help her “lose that extra twenty pounds” before her daughter's wedding.
Lee lost the weight but she did not attend the wedding. She was recovering from a heart attack brought on by mitral valve damage. A disturbing New England Journal of Medicine article published photographs of other long-term Aspire patients' heart valves. All had valve damage that looked just like Lee's. Nothing in Aspire's label, package, insert, or patient medication guide indicates it causes heart valve damage.
The class starts with a high-level overview of torts with cases about liability arising from defective drugs and moves onto personal jurisdiction. Students “join” four-member law firms. “Plaintiffs' firms” interview Lee and begin preparing a draft complaint. “Defendants' firms” negotiate a joint defense agreement.
Identifying the proper defendants is not easy. The leading American pharmaceutical company, Kimberly-Robb, Inc. manufactures Aspire but purchases the active ingredient, optimiscin, from “Andorran Pharmaceutical Group,” four corporations located in the tiny European Principality of Andorra. Did Kimberly-Robb know of any defects in optimiscin? What about the doctor who prescribed it? Or Lee Taylor's family pharmacist?
Time passes, and students think more deeply. If Lee's pharmacist knew Aspire was dangerous, did he have had a duty to warn her? What evidence would show that Aspire causes heart valve damage? Can a drug manufacturer rely on the doctor's prescription decision to protect it from liability for failure to warn if the manufacturer is advertising the drug directly to consumers? Does an American court even have jurisdiction to enter a judgment against a shadowy corporate group from a country many students have never even heard of?
The litigation requires that students create oral and written products to demonstrate their developing intellectual and professional capacities. As the year progresses, students draft pleadings, follow rules of service, conduct discovery, and make and respond to written motions. They gather “trial notebooks” or portfolios some will use in internships and job searching.
Welcome to Introduction to Civil Litigation, an innovative, ten-credit, first-year, year-long course prototype integrating Torts, Civil Procedure and the “Taylor v. Andorran Pharmaceutical Laboratoires” litigation simulation. Anchoring substantial instruction in a practice-based simulation is not unknown even in first-year, doctrinal law school courses, but it is still unusual. Yet this respected form of authentic instruction and assessment may be on its way to a law school near you.
The American Bar Association's 2014-15 revised Standards and Rules of Procedure for Approval of Law Schools made three major changes in the requirements for a school's program of education. First, the new Standards evaluate schools based on students' success in achieving desired “learning outcomes.” Second, the Standards prioritize preparation for the practice of law. Finally, new Standard 314 mandates that law schools assess student learning prior to the end of a course, when such “formative assessment” may help improve their learning. Because formative assessment helps students acquire the knowledge and capacities needed to demonstrate their competence at the desired learning outcomes, a school's program of formative assessment is at the heart of the instructional process in an outcomes-based curriculum.
This article argues that in context, Standard 314 invites faculty to imagine a more pedagogically powerful and professionally authentic first-year learning experience, perhaps anchoring substantial instruction in a program of authentic formative assessment such as the Taylor v. Andorran Pharmaceuticals Laboratoires litigation simulation. Part II describes types of assessment, when assessment supports learning, and why authentic assessment enhances a curriculum to achieve practice-preparation learning outcomes. Part III tracks and explains the emergence of professional practice and formative assessment in the ABA's accreditation standards. Part IV explores how Introduction to Civil Litigation anchors substantial first-year instruction in an authentic program of formative assessment, Taylor v. Andorran Pharmaceutical Laboratoires. Part V discusses what taking this no-longer-imaginary model from “experimental” to “established” might look like. The article concludes that faculties should RSVP “yes” to the ABA's invitation and commit to provide such a first-year curriculum model.


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