Sunday, June 28, 2020
An essay in the NY Times on the 16th-century, French philosopher Montaigne contains a paragraph that applies to how law schools should be teaching their students:
"More than a millennium earlier, thinkers like Epicurus and Seneca had already mapped out this path. Inscribing their words on the pages of his essays — as well as in the roof beams of his library — Montaigne grasped that, unlike philosophers in his day (or our own), these teachers sought not to inform their students, but instead to form them. As the classical scholar Pierre Hadot has argued, Stoicism and Epicureanism offered not airy abstractions but real-world “spiritual exercises.” Though the methods of these school varied, their mission was the same: to teach students how to master physics and ethics not as an end, but as the means to master their own selves and so better deal with life’s daily challenges, no less than its sudden catastrophes."
The idea behind the professional identity movement in legal education is the same as in Montaigne's essays--law schools should be forming students by helping them develop their professional identities. If law schools form their students, they will never again be accused of being trade schools.
Monday, June 15, 2020
The results were abysmal for American-American students on the February California bar exam. According to one headline, Only 5% Of Black First-Time Takers Passed February California Bar Exam, Compared To 52% Of Whites, 42% Of Asians, And 31% Of Hispanics. It is time that law schools do something about these terrible results. Simply stated, our minority communities need more lawyers.
The problem is that some California law schools are admitting students with low indicators, then doing nothing to help these students. Educational research has demonstrated that schools can help struggling students by using better teaching methods. I have summarized this research in my books, How to Grow a Lawyer (2018) (for deans and law professors) and How to Succeed in Law School (2019) (for law students). Law schools can help minority students succeed if they use the right approach. There is no reason for these dismal results.
Wednesday, June 10, 2020
Deep literacy (deep reading) is the beginning of legal reasoning and analysis. If our society losses it in general, what does this mean for the law?
The Erosion of Deep Literacy by Adam Garfinkle. Excerpts:
"Deep literacy is what happens when a reader engages with an extended piece of writing in such a way as to anticipate an author's direction and meaning, and engages what one already knows in a dialectical process with the text. The result, with any luck, is a fusion of writer and reader, with the potential to bear original insight."
"Deep literacy has wondrous effects, nurturing our capacity for abstract thought, enabling us to pose and answer difficult questions, empowering our creativity and imagination, and refining our capacity for empathy. It is also generative of successive new insight, as the brain's circuitry for reading recursively builds itself forward. It is and does all these things in part because it touches off a 'revolution in the brain,' meaning that it has distinctive and describable neurophysiological consequences."
"But it is also clear that something else has been lost. Nicholas Carr's 2010 book, The Shallows, begins with the author's irritation at his own truncated attention span for reading. Something neurophysiological is happening to us, he argued, and we don't know what it is. That must be the case, because if there is any law of neurophysiology, it is that the brain wires itself continuously in accordance with its every experience. A decade later, Carr's discomfort is shared by growing legions of frustrated, formerly serious readers."
"In her 2018 book, Reader, Come Home, Wolf uses cognitive neuroscience and developmental psycholinguistics to study the reading brain and literacy development, and in doing so, helps identify what is being lost."
"But beyond the addiction debate, few cognitive scientists doubt that so-called multitasking is merely the ability to get many things done quickly and poorly. And no one doubts that heavy screen use has destroyed attention spans."
"Beyond self-inflicted attention deficits, people who cannot deep read — or who do not use and hence lose the deep-reading skills they learned — typically suffer from an attenuated capability to comprehend and use abstract reasoning. In other words, if you can't, or don't, slow down sufficiently to focus quality attention — what Wolf calls "cognitive patience" — on a complex problem, you cannot effectively think about it."
"We know that prolonged and repetitive exposure to digital devices changes the way we think and behave in part because it changes us physically. The brain adapts to its environment. The devices clearly can be addictive; indeed, they are designed to be addictive."
"The knock-on issue thus becomes clear: It is hard to sustain the attention necessary for deep reading when we are distracted and exhausted from being both sped up and overloaded."
"A sadder and more troubling knock-on effect also reveals itself: If you do not deep read, you do not cultivate a capacity to think, imagine, and create; you therefore may not realize that anything more satisfying than a video game even exists."
"In science fiction, the typical worry is that machines will become human-like; the more pressing problem now is that, through the thinning out of our interactions, humans are becoming machine-like."
"The skimming and speed-reading in Z or F patterns that is characteristic of surfing the internet — the new norm for many — does not help enable critical content, if there is any, to sink into working memory. As reading method goes, it is the anti-deep; one barely gets wet at all."
"Only in the printed word can complicated truths be rationally conveyed."
Henry Kissinger noted one consequence of this development in the context of strategy:
Reading books requires you to form concepts, to train your mind to relationships....A book is a large intellectual construction; you can't hold it all in mind easily or at once. You have to struggle mentally to internalize it. Now there is no need to internalize because each fact can instantly be called up again on the computer. There is no context, no motive. Information is not knowledge. People are not readers but researchers, they float on the surface....This new thinking erases context. It disaggregates everything. All this makes strategic thinking about world order nearly impossible to achieve."
"But Kissinger is getting at something else here: namely, the sources of original thought. The deep-reading brain excels at making connections among analogical, inferential, and empathetic modes of reasoning, and knows how to associate them all with accumulated background knowledge. That constellation of sources and connections is what enables not just strategic thinking, but original thinking more broadly. So could it be that the failures of the American political class to fashion useful solutions to public- and foreign-policy challenges turn not just on polarization and hyper-partisanship, but also on the strong possibility that many of these non-deep readers are no longer able to think below the surface tension of a tweet?"
"Absence of thought as a mode of cognition likewise stifles imagination and feeds cultural insularity. Along with the technology-enabled prevalence of mediated interactions as opposed to face-to-face ones, insularity in turn conduces to the narrow "tribal" emotions of identity politics."
"Indeed, our developing the ability to deep read is part of what made us human."
As Hermann Hesse pointed out, "[w]ithout words, without writing, and without books there would be no history," and so "there could be no concept of humanity."
"Deep reading alone creates the possibility of a private internal dialogue with an author not physically present."
"In order for deep reading to exist there also must be deep writing."
"The capacity for abstract reasoning, too, is integral to liberal-democratic politics."
"The decline of deep literacy, combined with the relative rise in status of the superficially educated, may well be the main food stock for the illiberal nationalist forms of the contemporary populist bacillus . . ."
Conclusion: "The phenomenon of deep literacy can be a powerful explanatory factor for a range of theoretical and practical questions. No single factor explains anything entirely when it comes to the spiraling universe of social and political life, and it would be a stretch to claim that any of the above arguments amounts to a proof. But to omit deep literacy from the range of considered variables seems unwise. We should continue to generate new and more interesting questions to pose about deep literacy, and the meaning of its possible erosion, or transformation by novel means, in our own country and beyond."
Wednesday, June 3, 2020
Eric Voigt has sent me information about his new online interactive legal research exercises on Core Knowledge for Lawyers. He writes, "As you know, various law schools may hold fall classes entirely online or in a blended learning format. This new platform could be a valuable tool for instructors, students, and attorneys.
Core Knowledge has two types of assessment materials. First, this online platform contains multiple-choice questions from the end of each chapter of Legal Research Demystified. These questions test students' understanding of basic research concepts.
Second, Core Knowledge hosts interactive research exercises that students complete electronically. Each exercise involves one fact pattern in which students research on Westlaw or Lexis Advance and complete multiple research steps to reach a reliable conclusion on each client's legal question. Each exercise takes a student from start to finish of the research process for one legal issue. For example, for the Lexis Advance Common Law Research Exercise, students must create a research plan (Step 1), find state-specific secondary sources (Step 2), find relevant cases by using the LexisNexis Headnote System (Step 3), use Shepard's to find and validate cases (Step 4), and perform keyword searches in a caselaw database (Step 5). Throughout the process, students must evaluate the authorities found, including examining their relevance and the weight of authority.
Core Knowledge automatically grades each answer and provides an explanation to students—similar to Core Grammar. As a result, a professor can provide instant feedback to students without increasing the instructor's workload.
The questions and exercises on Core Knowledge are based on Legal Research Demystified. Nonetheless, I am revising these online materials, so they could be assigned with any legal research book."
Monday, June 1, 2020
I'm passing this along for a colleague (and though it may be too late for this year's 1L spring oral argument exercises, it's its valuable advice for those upper class moot court arguments and competition that'll be happening this fall when we'll most likely still be in lockdown mode):
"In mid-March when law schools across the country converted to an online-only course format as a result of the COVID-19 international pandemic, skills faculty were faced with making fast decisions about holding final oral arguments, the typical capstone activity in persuasive writing courses.
In an unofficial poll of 76 schools, 46% writing programs canceled oral arguments altogether, while 80% of those programs forged ahead, deciding to hold oral arguments on the zoom platform. Most faculty interacting on the Legal Writing Institute professional listserv wrote that they arranged to judge arguments themselves, to have teaching assistants judge arguments, or secured some local attorneys to judge arguments.
Many months prior to the world health crisis, UALR Professor Debbie Borman arranged to hold final arguments in the Federal District Court for the Eastern District of Arkansas, as she did in the spring of 2019. Professor Borman recruited numerous practicing attorney members of the Little Rock Woods Inn of Court to judge arguments. But once the Federal Courts announced closure and she moved the arguments online, the volunteer judges dropped off.
That is when Professor Borman got global: if arguments were remote, why limit judges to Little Rock?
Professor Borman went to work recruiting attorneys and judges from Chicago, Denver, Kansas City, and New York. In addition to the committed few from Little Rock that included a Federal District Judge, a Little Rock Circuit Court judge, and several practitioners, Prof. Borman recruited a panel of three former students from the first class she ever taught at DePaul College of Law in 2006; a former teaching assistant and a former student from Denver Law; a former student from UIC John Marshall, a practicing attorney who clerked in both the federal district and circuit courts, and attorneys in appellate and other fields of practice.
Allison Kort, a former law professor, judged one virtual argument. Kort is an appellate attorney in Kansas City and provided the link to zoom arguments in the Kansas Supreme Court the Saturday just prior to Professor Borman’s scheduled arguments. Students (and the professor) were able to view an identical appellate argument format and virtual logistics in action.
Judges found the experience both enjoyable and realistic:
Evan Smola, a partner in a Chicago law firm, and one of Prof. Borman’s students from her 2006 class said: “The best part of this whole process is that it precisely mirrors what is happening now in courts: parties are appearing for real arguments via zoom and Skype. Adapting legal education to an evolving legal world is critical for educators and their students.”
Jamie Dening, Prof. Borman’s former student from the University of Denver, now a New York practitioner said: “I had a lot of fun.”
Mike Rief, an Arkansas Circuit Court judge said, “it was a pleasure to judge. All of the students were well-prepared and did a good job on a new platform that all of us are going to have to learn how to navigate.”
Students also extolled their virtual experiences:
I felt as though arguing in front of judges from different areas of the country and with different expertise pushed me to consider how my argument might be perceived and evaluated from all sorts of perspectives. – Caitlyn Brainard
Professor Borman’s innovation in arranging this experience with judges around the country is a testament to her dedication to the legal profession and her desire to prepare her students for practice by developing our ability to adapt. - Sloane Stine
One student who was nervous about the zoom format was surprised at the ease of the argument:
For students like myself who struggle with public speaking, I was able to adjust settings to focus on the judge asking the question without any distractions. Overall it was a great experience and I honestly don’t think I would have been able to perform as well if the arguments were in person. – Vahid Sacirovic
Professor Borman is pleased that her last creative endeavor in experiential learning was so very successful.
“I loved it,” she said, “working with attorney friends and colleagues from all over the country was the ultimate great reward. My UALR students had the opportunity to learn from successful practicing attorneys with a wide field of experience in practice, judging, teaching, and clerking. The variety of feedback will serve students well in their careers.”
At the end of this semester Professor Borman will “retire” from teaching and return to practice in the Civil Appeals Division of the Office of the Illinois Attorney General."