Legal Skills Prof Blog

Legal Writing's Harmful Psyche by Kevin Bennardo.

Here is an article that is going to be widely-debated in the legal writing community: Legal Writing's Harmful Psyche by Kevin Bennardo.

Abstract

"This essay argues that many in the legal writing discipline view themselves in a way that is harmful to the discipline's success. First, the essay establishes that many legal writing professors view themselves as victims of oppression within the legal academy. Second, it relies on social psychology research to demonstrate that viewing oneself as a victim carries consequences. Groups that self-identify as victims tend to have an elevated sense of in-group solidarity and a diminished sense of personal responsibility. These attributes are both present in the legal writing community. Third, the essay demonstrates that these attributes are harmful in the context of an academic discipline. Robust internal criticism is important for the growth of an academic discipline because it allows those within the discipline to distinguish strong ideas from weak ones. As currently practiced, the elevated sense of in-group solidarity and the diminished sense of personal responsibility within the legal writing discipline result in a norm of protectionism that quells critical debate and internal disagreement to the detriment of the discipline. The essay’s conclusion suggests how the legal writing discipline can take steps to improve itself from within to alleviate the problem."

We welcome comments, but please keep them civil.

(Scott Fruehwald)

Quote of the Week

“[D]esigning educational experiences without an understanding of the brain [is] like designing a glove without an understanding of the human hand . . . .”

Tracey Tokuhama-Espinosa

(Scott Fruehwald)

Say What?: A How-To Guide on Providing Formative Assessment to Law Students Through Live Critique by Amanda L. Sholtis

Say What?: A How-To Guide on Providing Formative Assessment to Law Students Through Live Critique by Amanda L. Sholtis.

Abstract

The American Bar Association requires law schools to move beyond the traditional, single final exam and incorporate more assessment. One method law professors may use is live critique. Through live critique, the professor examines students’ work for the first time in front of students and reacts to it live. This article details the benefits of live critique for law students, which include enhanced learning, increased confidence, and practice-ready skills. It also describes how professors can boost the effectiveness and efficiency of their feedback by delivering it live. Finally, the article provides suggestions for professors in overcoming potential challenges and provides step-by-step guidance on how to integrate live critique into any law school course.

(Scott Fruehwald)

How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education by Harold Anthony Lloyd

How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education by Harold Anthony Lloyd.

Abstract

Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction."

How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols.

In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics.

(Scott Fruehwald)

Effectively Flipping the Classroom by Using Team-Based Learning by Adam Eckart

Effectively Flipping the Classroom by Using Team-Based Learning by Adam Eckart.

Abstract

Fostering student engagement in class is often chief among a professor’s goals. For this reason, many professors choose to “flip” their classroom in order to deliver content outside of class and spend more time on exercises and examples in class. When students do not engage with content outside of class, however, the benefits of the flipped classroom diminish. By pairing the flipped classroom with team-based learning, a learning technique that adds a student-completed “readiness assurance” assessment to the flipped classroom model, students are increasingly prepared for class and are more engaged with the material in class. This article discusses how professors can integrate team-based learning with a flipped classroom, the complementary nature of both approaches, and what type of modules and topics may be appropriate.

(Scott Fruehwald)

Quote of the Week

“Any conversation about effective teaching must begin with a consideration of how students learn.” Susan A. Ambrose et.al., How Learning Works: 7 Research-Based Principles for Smart Teaching 1 (2010)

(Scott Fruehwald)

Professor Robert Kuehn on additional data refuting the false claim that students who take clinical courses hurt their chances of passing the bar

Professor Robert Kuehn (WashULaw) has a much anticipated, forthcoming article in the Journal of Legal Education (here and here) that refutes the false assertion by some that students who take clinical courses undermine their chances of passing the bar. While we await the publication of that important article, Professor Kuehn has penned a short essay noting some additional data resulting from studies done by the California bar, Texas Tech School of Law, and U. Denver School of Law that further supports the conclusions reached by his own study. Professor Kuehn's essay, reprinted below, is also available here.  

Refuting the False Trope on Clinical Courses and Bar Passage

It has been observed that “the fewer the facts, the stronger the opinion.” Until recently, this could be said about the possible influence of enrollment in clinical courses on a student’s likelihood of passing the bar examination. While there was a shortage of empirical studies on any possible relationship, there have been plenty of opinions on how taking those courses might be harmful, opinions often reflected in graduation restrictions on clinical courses and requirements for bar subject-matter courses.

 

But, there are now significantly more facts to refute those opinions. Two recent, large-scale studies have both found no relationship between the number of law clinic or externship courses or credits a law graduate took and her likelihood of passing the bar exam.

 

In a forthcoming article in the Journal of Legal Education, academic records of ten years of law school graduates of Washington University in St. Louis and Wayne State University were reviewed for any relationship between the number of law clinic, externship, or, more generally, experiential courses or credits and bar passage. After first accounting for the possible influence of law school grades on bar passage (the most significant predictor of bar success), the study found no correlation at either school between law clinic or externship enrollment and bar passage — no relationship between participation in a law clinic or externship and passage, none between the number of clinical courses and passage, none between the number of clinical credits and passage, and no evidence that students graduating with lower GPAs were disproportionately enrolling in those courses as a way to avoid doctrinal courses (another not uncommon trope). This lack of any relationship was in spite of increased enrollment in experiential courses at both schools over the ten-year period and decreased enrollment in courses teaching material tested on the bar (referred to as bar subject-matter courses).

 

The article notes that nationwide data on experiential course enrollment and bar passage also belie any claim the two are related. That data indicate that as enrollment in experiential courses was increasing from 2006-2016, bar passage percentages were fairly steady and that the recent decline in passage coincided with decreased, not increased, enrollment in those courses.

 

A recent study commissioned by the California State Bar found a similar lack of relationship between law clinic and externship courses and bar exam performance. The study reviewed law school coursework and performance on three July exams for over 7,500 bar applicants from eleven California schools. It found no relationship between the number of academic credits from law clinic courses and exam performance, either across all schools or even when reviewing schools separately. Similarly, there was no relationship between the number of externship or internship credits and performance, again when examined across all schools or within schools. The broad range of entering credentials at the eleven schools, and lack of a relationship even within those schools, indicates that the results should be applicable to most law schools, including those with lower LSATs and undergraduate GPAs for entering students.

 

The study results from Washington University/Wayne State and the California State Bar are similar to smaller studies at Texas Tech and the University of Denver that also reported no statistically significant relationship between enrollment in a law clinic or externship course and bar passage.

 

The Washington University/Wayne State and California State Bar studies further revealed that opinions about the value of bar subject-matter courses should be moderated. There were small correlations at both schools between the number of bar subject courses and bar passage. But this result (explaining less than 5% of the variability in bar outcomes) was only for low performing students and additional courses showed no marginal benefit once students took the school’s average number of bar courses.

 

The California State Bar study focused on whether taking a specific course was related to performance on the bar exam topic taught in those courses. It found that neither attendance nor performance in courses covering any of the 13 bar-related topics was related to performance on the corresponding California bar exam or Multistate Bar Exam content covering that subject.

 

Studies at other schools also indicate that enrollment in bar subject-related courses do not support broad claims about the benefit of taking those courses.

 

It is time to put away the misinformed trope of participation in law clinic and externship courses harming a student’s chances of passing the bar exam and let the facts do the talking. Law schools should recognize and students should be told they can obtain valuable preparation for the practice of law by enrolling in clinical courses without affecting their likelihood of passing the bar exam.

 

- Robert Kuehn, Washington University School of Law

 

(jbl).

Meta is Better by Anne E. Mullins

Here is an important article on metacognition and deep learning: Meta is Better by Anne E. Mullins.

Abstract

Meta is Better, 49 N. D. L. Rev. 324 (2019), argues that a broad-based metacognitive approach to foundational legal writing courses promotes deep self-regulated student learning. Metacognition can be much more than a nice add-on to a course. Used most effectively, metacognition becomes the alpha and omega of the learning partnership. The professor explicitly teaches students about metacognition, uses metacognitive techniques in class, and adopts a metacognitive approach to the role of professor.

A tribute to Professor Patti Alleva, longtime proponent of deep learning through metacognition, the Article first identifies and explores the unique challenges of teaching and learning legal writing. In Part II, the Article demonstrates how to take a broad-based metacognitive approach to foundational legal writing courses through being explicit about metacognition, providing a framework for self-critique based in metacognition, modeling metacognitive skills, and using assessment to encourage monitoring of learning.

Part III places metacognition and legal writing into the larger law school curricular context and argues that law schools ask incoming students to do too much, too soon, and in too little time. The compressed nature of traditional curricular design forces legal writing professors into a high-stakes conundrum with student education, constantly choosing what skills to teach and how deeply to teach them. A de-compressed first year curriculum along with a robust upper-level writing curriculum would alleviate this tension and promote student learning.

(Scott Fruehwald)

 

The worst ed-tech debacles of the past decade

The blogger and author Audrey Watters (who is a self-described Cassandra of educational technology) has used the start of the new decade as an opportunity to look back over the past 10 years and chronicle what she calls the top 100 ed-tech "failures and f#%& -ups and flawed ideas." Her detailed list covers everything from "the flipped classroom" (#92) to "op-eds on banning classroom laptops" (#90) to "TurnItIn (and the cheating detection racket)" (#57) to "Brain Training" (# 56). Of course there's no shortage of overhyped classroom technologies and trends making her list which ensures IBM's Watson (#40) will never want for company.  Check out Ms. Watters full list here and see if your favorite classroom technology will be remembered as a ground-breaking innovation that makes teaching and learning easier and better or instead is a failed experiment that will be relegated to the dustbin of overhyped classroom technologies.   

(jbl).

Research Across the Curriculum: Using Cognitive Science to Answer the Call for Better Legal Research Instruction by Tenielle Fordyce-Ruff

Research Across the Curriculum: Using Cognitive Science to Answer the Call for Better Legal Research Instruction by Tenielle Fordyce-Ruff.

"This article explores why and how law schools can use principles from cognitive psychology to respond to the need for graduates to have competency in legal research skills by adopting legal research across the curriculum. This article first explores the history of the tension between increasing skills instruction and doctrinal teaching, the academy’s response to criticisms about the lack of skills instruction, and how this response has led to an undervaluing of skills instruction within the academy and by law students. It then turns to calls for better research instruction, specifically the call for including legal research across the curriculum and the challenges to implementing such a curricular change. Next, it examines the competencies a legal researcher needs to possess and the current placement and state of legal research instruction in the academy and reviews the changes in legal research resources. It then examines cognitive science and psychology to examine how students learn best. Finally, it argues that including research across the curriculum would allow students to achieve the needed competency in legal research without placing undue burdens on law faculties."

(Scott Fruehwald)