Sunday, November 22, 2020

Second Edition of "Developing Your Professional Identity"

I have just issued the second edition of my book Developing Your Professional Identity: Creating Your Inner Lawyer.  The second edition includes a new chapter on behavioral legal ethics, and it reflects the latest scholarship on professional identity development since the first edition.
(Scott Fruehwald)

November 22, 2020 | Permalink | Comments (0)

Friday, November 20, 2020

FIU Scores No. 1 on The Florida Bar, Again

Everyone knows that the administration of the Florida bar exam was a disaster this year.  Because of this, it was hard to predict what the results would be.  Well, they were pretty bad, but they were about the same as last year.  There was a 71.7 passage rate for first-time takers this year compared to 73.9% for last year.

Another thing that didn't change this year was the top-ranked law school: Florida International University with an 89.3% pass rate.  That's six consecutive years they have scored number one on the July exam.  As the National Jurist said last winter, "OK, this is getting ridiculous." (An Unexpected Leader).  FSU was second at 84.4% and UF was third at 83.9%.

What is even more ridiculous is that more law schools are not using the proven teaching approaches adopted by FIU.  As I have stated on this blog many, many times (Jim will attest to this), educational scholars have established what teaching approaches are effective and which are not.  (see my book, How to Grow A Lawyer for a detailed discussion)  There is a science to learning.  Law schools need to use it.

(Scott Fruehwald)




November 20, 2020 | Permalink | Comments (0)

Wednesday, November 18, 2020

How I Learned to Stop Worrying and Love Zoom - my embrace of online teaching (with pics!) - Part 1.

I've been blogging this semester about my journey from not liking Zoom at all back in August to figuring out how to use it to replicate a more traditional classroom experience for students. Accordingly, I thought I'd share some pics of the office videoconferencing set-up I settled upon. I intended this to be a single post but discovered that our blogging platform Typepad apparently can't accommodate more than a photo or two per post (even after I've compress them). So I've separated this post into several parts (here, here, here, and here) in order to be able to post pics to show how I've used Zoom to teach my legal research and writing class this semester in a less screen-centric, more personally engaging way. 

A bit of background that helps explain why I settled on this particular office set-up. As a department, the LRW profs at my school decided we'd teach the course this semester entirely online. Due to the need for social distancing in our classrooms, it meant there weren't any empty ones available from which I could teach my classes to an online audience or even record my lessons to be shown to students later. So I had to figure out a way to teach my LRW classes, and be effective doing it, from my desk. (As an aside, I much prefer to teach from my office at school rather than home as it puts me in a more serious, professional frame of mind. Plus at school I have access to any office equipment I need like photocopiers, scanners, and the IT and support staff).

I'll also note that before this summer, I didn't even own a video camera. I don't Skype, have rarely used Facetime and in general don't like videoconferencing. So, when we learned over the summer that we'd be teaching LRW entirely online this year, I had to gear up my office (and spare bedroom at home) and do it fast.  

Neither my office nor home desktops had cameras so I started by buying stand-alone ones mounted on a small footprint tripod to save precious desk space. After experimenting with Zoom at the end of the Spring semester when in-person classes were called, I added a second monitor and a pair of stand-alone video lights on tripods to make sure my lessons were adequately illuminated (if not always illuminating). To upgrade from my desktop's built-in (and crappy) speaker and microphone, I bought some upgraded (yet still inexpensive) standalone ones from Amazon. I love Bluetooth but figured it was better to buy USB speakers and microphone for any extra margin of reliability. In case they failed me during class (or anticipating there might be times when students wouldn't be able to hear me well enough), I also bought a headset with a built in microphone as a back-up. Altogether, my entire office set-up probably cost less than $500. It's amazing the amount of videoconferencing equipment you can buy on Amazon for a relatively small amount.

Once the semester started, it only took me a class or two to decide I definitely didn't want my classes to consist entirely of PowerPoints and screen-shares. I also decided that the whiteboard feature built into Zoom was really balky and didn't work well for me at allAs I've noted before, when I'm teaching face-to-face in a traditional classroom, I like to move around a lot, going back and forth between the podium and the whiteboard, and walking the aisles to engage the students. I make heavy use of the whiteboards by projecting writing samples onto them which we can then edit as a class. But without being able to broadcast my classes from an actual classroom, I wanted to figure out another way to replicate that experience for students. The problem with teaching from my office is that I'm physically tied to the desk (and my desktop computer) in order to operate Zoom, show slides, share my screen, etc. Thus, I couldn't turn one of my office walls into a whiteboard. Instead, I decided to buy an easel and a bunch of smaller, portable whiteboards that I could switch in and out during class. 

The pics below (and in the related posts) tell the story. I'm curious how other readers have handled teaching by Zoom. Like me, have you tried to bend Zoom to make it more like a traditional classroom experience for students or instead more fully embraced it by making your teaching fit the platform? For what it's worth, my students have told me that they really appreciated that I've tried to make my classes less screen-centric by putting myself (and the whiteboards) on camera as much as possible. Nearly all of them said they didn't like spending class time watching nothing but screens and slides. 

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Dual monitors are de rigueur for teaching with Zoom. For me, using a single screen would be like trying to compete in the Indy 500 with a Yugo. Note also the standalone, USB microphone to the side of the left monitor and the (barely visible) pair of standalone USB speakers, one behind each of the monitors. All bought from Amazon and very inexpensive. I love Bluetooth devices but this time opted for the better reliability of USB accessories for the "classroom."  Not pictured is a USB headset with built-in mic that I can grab during class if students are  having trouble hearing me through the desktop mic.

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Note the stand-alone video camera mounted on a small footprint tripod to conserve precious desk space. Also shown is one of a pair of video filming lights also mounted on space-saving tripods with color filters that can help to set the mood, as needed, and illuminate any props (like books) or other visual aids I might use in class.

Continued in Part 2, below (unless I can figure out how to further compress the remaining pics to fit in a single post - I've tried several things already without success. If anyone has any advice about that, I'm all ears).


November 18, 2020 | Permalink | Comments (0)

How I Learned to Stop Worrying and Love Zoom - my embrace of online teaching (with pics!) - Part 2.

Continued from Part 1. Another pic of my office Zoom set-up. FYI, I also created a similar set-up at home in case my school suddenly had to close down due to a Covid outbreak (So far that hasn't happened. My school has done a really good job keeping us safe). It was time for me to upgrade my home desktop computer anyway and with some spare parts I bought on eBay I was able to convert my single, desk mounted monitor arm to a dual arm. Adding a new pair of USB speakers, a standalone microphone, and a spare headset (with built-in mic), I'm now ready to teach from home at the drop of a hat if necessary. Altogether, it's likely cost me less than a $1000.00 to fully upgrade both my home and office systems to be fully Zoom compliant. Too bad we can no longer itemize. Compressed 3rd pic

Above is the "brains" of the operation; several whiteboards purchased from Amazon that I can prepare with text and diagrams before class to illustrate key points for that day's lesson or leave 'em blank and write on them as we go. As you'll see in the next set of pics, I use an easel placed next to my desk to frame the whiteboards in front of the camera and can switch them in and out as we go. Students have told me they much prefer my use of the whiteboards to screen-shares and PowerPoints on Zoom. 

Continued in Part 3, below


November 18, 2020 | Permalink | Comments (0)

How I Learned to Stop Worrying and Love Zoom - my embrace of online teaching (with pics!) - Part 3

Below is a picture of one of my whiteboards in situ. The easel is from Amazon and lets me position the whiteboards directly in front of the camera. I bought several whiteboards, in two sizes, so I can rapidly switch them in and out during class as needed and thereby eliminate dead spots where I'd otherwise be erasing and writing (it's different in the classroom where you can better keep students' attention even with your back turned while writing on the board). Also note the aluminum (fake) Eames chair which was also a recent purchase since having an excellent, supportive desk chair is as critical to teaching by Zoom as a scalpel is to a surgeon. You can't operate without it.


Continued in Part 4, below. 


November 18, 2020 | Permalink | Comments (0)

How I Learned to Stop Worrying and Love Zoom - my embrace of online teaching (with pics!) - Part 4

Continued . . .  Below is a shot taken from the vantage point of the captain's chair. I bought an old school, telescoping pointer to use in class with the whiteboards. Using it is fun and reminds me of those scenes from old WW-II movies where generals are seen pushing around miniature tanks and armies on a map while plotting a pincer movement

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Continue below for the final installment.


November 18, 2020 | Permalink | Comments (0)

How I Learned to Stop Worrying and Love Zoom - my embrace of online teaching (with pics!) - Part 5

The final installment . . . . I keep several whiteboards close by my chair so I can grab them at the right moments to show them to students on the easel next to my desk (and in front of the camera). As I've blogged about before (here and here), this requires a lot more prep and planning on my part since I have to consider before class starts how I want to use the whiteboards and what I want to write on them in contrast to a traditional, face-to-face classroom where it all flows much more extemporaneously. 

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So that's the solution I've come up with to try to recreate the engagement, physicality, and connection between teacher and students in a traditional classroom given that we're all required to teach via Zoom. My students said they've liked my approach, especially given the alternative of a class consisting entirely of slides and screen-shares. But I'd also love to hear what you've done to address the challenges of teaching via Zoom (especially in a skills course like LRW) and, if you're interested and willing to share, please note in the comments below your ideas, strategies and approaches.


November 18, 2020 | Permalink | Comments (0)

Sunday, November 15, 2020

How teaching with Zoom is like "The Hollywood Squares"

If you grew up in the 70s and spent a sick day at home from school watching TV, then you must remember "The Hollywood Squares" (along with "Let's Make a Deal," "Green Acres," "Petticoat Junction," "The Dick Van Dyke Show," "Lost in Space," and many others . . . especially if you grew-up in the NJ-NY-CT tri-state area). Now that the semester is almost over (at least for me) and the final classes have a more relaxed vibe, I've only now made the connection between Zoom and "The Hollywood Squares" (no doubt other children of the 70s made this connection way before me). It's more evident if, like me, your Zooming with a desktop dual monitor set-up where you put your slides and screen-shares on one monitor and all your thumbnails of students on the other. 

Zoom as Hollywood Squares-2

In keeping with the more relaxed tone of class last week, I deftly slipped into vintage game show mode by calling on students thusly:

"Let's go with Brittany [Rose Marie] for the win!" 

"How about Sam [Charley Weaver] for the block!"

"This time I'd like to go with Christine [Paul Lynde], please."

 ". . . . And it's the Secret Square!"

Of course, I got blank stares from all my students and therefore had to explain what "The Hollywood Squares" is/was before sending them off to YouTube to check it out for themselves. Though I don't think my students got the humor, they seemed to enjoy how much fun I was having playing Peter Marshall in class. 


November 15, 2020 | Permalink | Comments (0)

Thursday, November 12, 2020

Some observations about conducting student conferences via Zoom during a pandemic

These are historic times. Me and every other legal educator is having to learn new ways to teach due to the pandemic and do it fast. Zoom is now a permanent part of our collective teaching repertoire. This blog has been a good opportunity for me to jot down some observations and impressions about how the semester’s going while they’re still fresh in my mind. There’s no doubt that Zoom as a teaching modality will be with us long after the pandemic ends. So I thought it might be helpful to those interested in law school pedagogy to record some of these impressions here. Who knows? Maybe these anecdotal observations will later prove useful to commentators and scholars of law school pedagogy.

As I’ve blogged before, when the semester began I really didn’t like Zoom at all. It was unclear to me how, and whether, I’d be able to adapt many of the things I do in the classroom to an online platform. In part that’s because I have a very “physical” teaching style in that I like to frequently move between the whiteboard and podium as well as walk the aisles to better engage with students. But as I also said at the time, these extraordinary circumstances present a challenge that will require us to grow as teachers. We’d have to find ways to innovate and improvise, and ultimately become better teachers to overcome some of the shortcomings of Zoom as an educational platform. Among other things, I purchased several portable whiteboards, some dry-erase pens, an easel, and a pointer, to put myself on camera as much as possible during class to replicate for students the physicality of a traditional classroom. Students have told me they prefer this approach to the marathon slideshow presentations that comprise some of their other classes. While I’m happy my students are enjoying class, I still believe that a physical classroom is the best place to teach a legal skills class like LRW.

But when it comes to other aspects of my class like the individual student writing conferences, I’m liking Zoom much more than I expected. Having just completed a full round of half-hour conferences with twenty-two students, I’m quite pleased with the overall result. I can’t say Zoom is better than meeting in-person, but I definitely have the impression that it’s a very good alternative. One thing that’s missing from the Zoom experience is the ability to read some student body language and other visual cues that let me know whether they’re getting it and what they’re getting hung up on. On the other hand, the video conferences seemed to establish a more relaxed atmosphere compared to meeting face-to-face that enhanced their effectiveness. Whether it was due to the convenience of students not having to rush between classes to get to my office or instead the benefit to them of being surrounded by the comforts of home, the conferences definitely seemed to have a subtly more relaxed vibe which helped, I think.

Another aspect of the conferences which worked well on Zoom was reviewing drafts with students. I always require students to submit a rough draft of the pending writing assignment before meeting with me. As I’m fond of telling them: “No shirt. No shoes. No draft. No dice!” Despite the fact that a traditional in-person conference works well when we sit side-by-side to go over their drafts, it may have worked even better with my dual monitor office set-up that lets me put the student’s draft on one screen while we talk about it on the other. I also used the digital highlighting function in Word to great effect by using various colors (i.e. yellow, green, and blue) to highlight and make distinct points. Even the students who don’t like learning via Zoom said they found the writing conferences a much better use of the platform.

The experience has made me think that when we eventually return to classroom teaching sometime next fall, assuming the new vaccine works as expected and there's adequate distribution, I’ll likely continue to offer students the option of conferencing via Zoom instead of in-person. As of this post, it’s nearly the end of the semester for me, at least with respect to my LRW course which ends a bit earlier than my other, upper level class. Looking back over the semester, I can definitely say that having to teach under these circumstances has pushed me to think hard about my classroom approach over the years, reassess those methods, and try new things. Offering students the option of writing conferences via Zoom, especially with a dual desktop monitor set-up, is definitely going to be an valuable addition to my teacher’s tool box going forward.


November 12, 2020 | Permalink | Comments (0)

Wednesday, November 11, 2020

Op-Ed: Why Won't Trump Concede? by Scott Fruehwald

Over a week has passed since the election, and it is clear that Joe Biden will become the next president on January 20, 2021. Yet President Trump refuses to concede. Why won’t Trump face reality? The answer is cognitive biases, which affect human thinking and decision-making.

Over the past few years, I have been studying cognitive biases, and now I can see them everywhere. (Here and here). Trump is not the only one suffering from cognitive biases; they affect all humans to some extent. They are pervasive in both our public and private lives. They affect how we see politics, do our jobs, and relate to others. They are not related to intelligence; very intelligent people suffer from brain biases. For example, very intelligent people believe the anti-vaccine myth, including famous and/or well-educated people like Robert F. Kennedy, Jr., Alex Jones, Jenny McCarthy, Jessica Biel, and Rob Schneider.

In recent years, cognitive scientists have made enormous advances in understanding how the human brain works, including how humans make cognitive errors. Human brains evolved just like physical characteristics, such as opposable thumbs, did. Consequently, many human thinking processes developed for survival in primitive times. This process produced ways of thinking that are different from reality--cognitive biases.

Pulitzer-Prize winner, Daniel Kahneman has explained how cognitive biases arise in his book Thinking: Fact and Slow (2013). Humans use two types of thinking: System 1 is intuitive thinking, which operates automatically and controls the many details of our lives, such as walking, eating, and driving a car. System 2 controls tasks that require conscious decision-making and judgment, such as buying a house, running a business, deciding whether to launch missiles against the enemy. Cognitive biases occur when human thinking relies uncritically on System 1 (intuition). So, President Trump is relying on his intuitions, which are unreliable, rather than conscious judgement, which is much more likely to reach the right conclusion.

The most important bias affecting President Trump’s thinking is the “confirmation bias.” Under this bias, people focus only on information that supports their position. For example, a person mentions five studies that supports her position, but ignores the ten studies that don’t. People also ignore the faults with the studies that support their view.

President Trump thought that he was going to win this election. Some of the results on election night did show that the election was leaning towards him. However, as the night went on, and vote counting continued, the voting shifted in Biden’s favor. Because of the confirmation bias, which we all suffer from, he continued to think that he was going to win. He focused on the good news, rather than the bad. He even believed the unsubstantiated rumors of voter fraud and miraculously-appearing ballots.

His thinking was also affected by the Semmelweis effect, which causes individuals to reject evidence that contradicts a strongly-held idea. For example, Renaissance theologians rejected Galileo’s observations because they were inconsistent with their strongly-held notion that the universe revolved around the Earth. Trump, similarly rejected the evidence that he was losing the election. This evidence was fraudulent or the counting process was flawed.

Emotional reasoning also affected how Trump viewed the election’s outcome. Emotional reasoning is allowing emotions to affect one’s interpretation of reality. President Trump has a large emotional investment in the outcome of this election. Is it any wonder that he is letting his emotions affect how he views the results?

President Trump is also suffering from “the illusion of control.” Our brains often think that we have more control over a situation than we actually do. For example, a businessperson may think her company has submitted the winning bid, but she has no control over what the other bidders bid. A president may think that he has control over the outcome of an election, but, in reality, millions affect the result.

Finally, people often believe that they are acting properly or ethically when they are not. Behavioral ethicists call this ethical (or moral) blindness–unintentional unethical conduct. With moral blindness, people condemn unethical behavior, while being unable to see it in themselves. For example, a lawyer may think that lying to the court is repugnant, but he does so himself because he doesn’t realize he is lying or can rationalize his lying. In other words, a person thinks she can act objectively in a certain situation, but her emotions prevent her from acting objectively. In this case, President Trump may be suffering from moral blindness. He is thinking what he is doing is right, but he is unconsciously acting improperly.

How can we overcome cognitive biases? First, many researchers believe that just having knowledge of cognitive biases reduces their frequency. Second, slowing down one’s thinking can eliminate cognitive errors. In other words, with important decisions, you should check your System 1 intuitions with your System 2. Consider all evidence, even that which contradicts your ideas. Separate the objective from the subjective and avoid lazy thinking. Critically consider all reasonable alternatives. Add reflection and self-monitoring to your usual thinking processes. Create problem-solving strategies. Be able to explain your reasoning process. Consider the consequences of making a mistake. (What are the consequences of President Trump not timely admitting that he lost the election?) Third, don’t let emotions get in the way of your thinking. Evaluate whether your decision is based on emotion or System 2 thinking. Fourth, understand that you can’t control most situations. Finally, look for ethical blindness in your thinking.

I do not mean to single out President Trump for his failure to recognize his cognitive biases. They are a common impediment to human thinking and decision making. They have caused poor policy decisions, famines, wars, and countless human suffering. Our society needs to be aware of these problems in human thinking so that we can avoid many of the problems they cause.

(Scott Fruehwald)

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November 11, 2020 | Permalink | Comments (0)

Monday, November 9, 2020

Some observations about law student performance in a legal skills course taught via Zoom

I thought I’d jot down some observations about how students seem to be doing in my legal research and writing course this semester which I’m teaching for the first time via Zoom. Since Zoom is likely to be with us for a while as a law school teaching platform even after the pandemic ends, I thought it would be interesting to compare experiences when it comes to student work since that's one way to assess how effective we’re being as teachers using Zoom.

But first, to briefly follow-up on my post from last week where I expressed disappointment with my students for their failure to apply the lessons learned from one assignment to the next, a few of them reached out to me after getting their papers back to apologize for their poor performance and acknowledge that they didn’t work hard enough. It definitely brightened my mood as it lets me know we can collaborate productively together to improve the quality of the work going forward and that these students will do just fine. In fact, I feel that I can pretty accurately predict how students are going to do based on their openness to constructive feedback and willingness to acknowledge they may need to work harder. So, perhaps my little experiment to get students to better transfer one lesson to the next worked better than I first thought.  

Regarding my observations about student performance this semester on the big, key writing assignments I’ve taught via Zoom, I started the semester like a lot of us not liking Zoom at all and believing it was a poor substitute for in-person, classroom teaching (here and here). Though I still believe teaching in a physical classroom is (much) better, I’ve warmed up to Zoom quite a bit (though I still find it exhausting). I think I’ve gotten better at teaching via Zoom and have developed a good repertoire involving the use of slides, screen shares and putting myself on camera with a traditional whiteboard and dry-erase pens. With a dual monitor set-up at work, I’m able to work with slides during class on one of them while also keeping all my students’ faces on the other monitor so I can call on them or try to engage them in other ways. I didn’t expect to think that Zoom may in fact be a more direct and immediate way to connect with students when their attention seems to drift or as a means to "check-in" to ensure they’re following along. Until last week, my impression was that class was going a tad better than expected and I was even liking Zoom a bit.

But that was before I finished grading the first major, substantive writing assignment of the semester which yielded a disappointing yet clear pattern with respect to the quality of those papers. At the top end, I had more good papers than usual and the best of them were as strong, if not stronger, than they’ve been in the past. But on the bottom end, I also had more weak papers than usual and those students seemed more lost than in the past. Under normal circumstances, I tend to have a more even distribution of grades with a small number at the top, the bulk spread across the middle and a few outliers at the bottom. But this time the distribution of student grades was strikingly bimodal with less than a handful in the middle.

I attribute this to the fact that I’ve worked hard to simplify several aspects of my course this year (e.g., for the written memorandum assignments I only require students to brief two cases in their “rule” section rather than the usual three or more) to accommodate the limitations of teaching via Zoom. I’ve also given students more guidance than usual including finding ways to simplify and better elucidate nearly everything I do in the classroom. I think the better, stronger students took advantage of those opportunities and as a result did really good work. I also think that despite my subjective impression that class was going better than expected and Zoom was helping me hold students more accountable in class, that wasn’t the case. For the weaker or less motivated students, I think Zoom makes it easier for them to check-out compared to a traditional classroom setting. If that’s true, it would be consistent with some metastudies of online undergraduate programs that found self-motivated students perform the best in online classes while weaker or less-motivated students do worse in comparison to traditional, in-person classes. So I’m curious about the experience of others this year when it comes to the quality of student work in your Zoom classes compared to traditional, in-person ones.


November 9, 2020 | Permalink | Comments (0)

Thursday, November 5, 2020

Great Quote on Legal Education

Ask Not What You Can Do For Your Students; Ask What Your Students Can Do For Themselves.

Louis Schulze

(Scott Fruehwald)

November 5, 2020 | Permalink | Comments (0)

Wednesday, November 4, 2020

Yesterday's Election and Cognitive Biases

As of this afternoon, yesterday's election has not been decided.  However, one thing is clear: The pundits and the pollsters got it wrong again.  As the NY Post noted, "The pollsters were wrong again — why do we listen to them?"  See also Media has a meltdown as Biden fails to deliver a landslide.

Four years ago, I wrote about why the pundits had gotten the 2016 presidential election so wrong: "On November 9, 2016, political experts woke up to a great shock: Donald Trump had been elected President. Most experts had predicted a victory for his opponent, Hillary Clinton. For example, election expert, Nate Silver, gave Clinton a 70% chance of winning just a day before the election. The New York Times gave her an 85% chance of winning the election. The same New York Times article gave Trump a 33% chance of taking Florida, an 11% chance of carrying West Virginia, and a 6% chance of winning Michigan, states he won. Overall, Trump won a clear victory in the electoral college (306 to 232). Why were the prognosticators so wrong?
The answer: Cognitive biases (thinking or brain biases)–“a systematic error in thinking that affects the decisions and judgments that people make.” In 2011, Daniel Kahneman wrote a book for the general public intended to "improve the ability to identify and understand errors of judgment and choice [cognitive biases], in others and eventually in ourselves, by providing a richer and more precise language to discuss them." (See Overcoming Cognitive Biases: Thinking More Clearly and Avoiding Manipulation by Others (2017)).  (I have also written a cognitive bias book for the law: Understanding and Overcoming Cognitive Biases For Lawyers And Law Students: Becoming a Better Lawyer Through Cognitive Science (2018).)

The additional question raised by the two above articles is why do we listen to the polls when we know they are so often wrong? The NY Post declared, "Claire McCaskill, the former Missouri senator who lost her seat in 2018 after going batspit crazy about opposing everything Donald Trump did, right down to spastically trying to block him from making routine cabinet picks, demonstrating that she had no clue about Trump’s vast popularity in her state, admitted that Democrats had managed to talk themselves into believing Trump is a lot less popular than he is." (here)  The article added, "As Jake Tapper memorably put it on CNN, “You can’t get high on your own supply.” That supply was the media-polling complex, an echo chamber in which professional Democrats and their friends who rule the culture kept singing chorus after chorus of “We Are the Champions” before the game had even started."  (Id.)

Finally, "We were giddy because the map felt like it was expanding,” McCaskill sheepishly admitted. “It looked like all kinds of different paths that we could get there.” Meaning: The Democrats actually thought they were going to capture Florida. Hey, the pollsters told them that, and pollsters never get anything wrong when it comes to Donald J. Trump, do they?"

To put it in scientific terms, the pundits who were predicting a landslide Democratic victory got it wrong because of cognitive biases.  They suffered from the conformation bias: "The tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions." (Wikipedia) They also suffered from the semmelweis reflex: "The tendency to reject new evidence that contradicts a paradigm." (Wikipedia).  Finally, they exhibited emotional reasoning: "Letting your feelings guide your interpretation of reality."

In sum, it is very important that lawyers, prognosticators, and policy makers understand how cognitive biases can affect human thinking.  Otherwise, we will continue to make the same harmful mistakes that we have in the past.

(Scott Fruehwald)

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November 4, 2020 | Permalink | Comments (0)

Monday, November 2, 2020

A technique (not) for helping students transfer knowledge and the fallacy of common sense

One of the most important goals we're all trying to accomplish in our legal skills classrooms is to impart lessons to students that they’ll retain and be able to apply to the problems they’ll later encounter in practice. It’s what cognitive scientists refer to as “transferability.” For example, when I teach research skills in my legal writing class, my goal is to not just help students find the cases they need for the office memo assignment of the moment, I also want them to learn a method and process to help them solve the unique research problems they'll face as attorneys. 

Thus, the way I teach LRW skills is informed by the goal of transferability. I want students to learn both the mechanical steps involved in, for example, formulating Boolean search strings and selecting the right databases, and also the cognitive habits of an expert researcher who develops the mental protocols and checklists needed to ensure they haven’t missed anything.

One of the pitfalls of putting experts in charge of teaching neophytes is that we may forget to make explicit some of the steps involved in performing a particular skill because they have become so internalized and second nature to us due to our status as experts yet our students don't share the same assumptions. In other words, we assume what is “common sense” to us because of our expertise will also be common sense to our students. Consequently, one aspect of my teaching that I’m always trying to improve is to become more self-aware of the assumptions I’m making that aren’t yet “common sense” for my students. For instance, early in my teaching career I realized that lawyers and students understand the process of self-editing differently. When a lawyer edits her own writing, she’ll revisit and question every aspect of it including large scale organization, small scale organization, word choice, citation form, and most importantly the theories advanced and the substantive ideas expressed.  Many law students, on the other hand, understand the editing process in a totally different way. They tend to approach it much more superficially by changing a word here and there or correcting typos. So my job is to more explicitly describe what I mean when I tell students to edit their written work including providing concrete examples of how an expert approaches the task.

But despite having worked hard to become more self-aware about how I may be inadvertently making assumptions about what is, and what is not, “common sense” to my students, every once in a while I still have one of those mini epiphanies where I recognize that something that I thought was self-evident to students, might not be so.

A case in point; I often use brief quizzes in class to more actively engage students in the material. For example, I’ll give a quiz (or sometimes multiple quizzes in a single class, carefully sequenced) about aspects of legal research, writing their memo assignments, citation form, or whatever topic of the moment I want to better reinforce. After administering the quiz(s), we’ll then go over it together focusing on the points I want students to take away from the exercise. Just recently I gave students a quiz on citations based on the most common errors I’ve seen in the past as a way of heading off students making those same mistakes again this time around (i.e. mechanical stuff like underlining case names but not statutes, using string cites in the thesis paragraphs but not in “application,” etc.).

Of course I have always assumed that students understand that the point of these quizzes is not for me to create make-work for them but instead to help embed the lessons I want them to apply generally in the course moving forward. That’s common sense, right?  Well, it recently occurred to me that even though it seems like that should be the case, maybe it isn’t for some students. So I decided to include a couple of questions in my most recent quiz on avoiding common citation errors to make that expectation more explicit for the pending office memo assignment. I even added a soupcon of humor figuring that might make the lesson “stickier” if only because it makes it more memorable. To wit, I added the following questions at the end of the quiz:

    Question # 10

A. The point of this exercise is (choose the correct answer):

i. To forget the answers as soon as you’ve finished.

ii. Apply what you learned about citation placement and form to every assignment in this course moving forward.

B. If you don’t apply the lessons learned from this quiz to memo assignment # 1 (choose the correct answer):

i. Your professor will be so happy and proud.

ii. Your professor will become sad, despondent, and question the very meaning and purpose of his life.

By now, I’ve finished grading the office memo assignments to which this quiz related. As the quiz prophetically suggested, I’m now sad, despondent, and questioning the very meaning and purpose of my life. That’s because even though the vast majority of students got most of the quiz questions correct (it was a take-home, open book quiz that they had 24 hours to complete which I reviewed with them in class afterward), they didn’t transfer the knowledge gained to the office memo assignment I just finished grading (where maybe half the class incorrectly underlined statutes or failed to use string cites as instructed). Heck, 5 to 10% of the class even got Question 10(B) wrong!

I’m not sure what to try next to improve transferability. But this experience is a reminder to me that despite having devoted nearly 24 years trying to become a better teacher including reading and publishing quite a bit about law school pedagogy, attending numerous teaching conferences, presenting at those conferences, having the benefit of new-fangled teaching theories and loads of empirical work, as well as being able to leverage the expertise of relevant fields like cognitive science, the most insightful thing I’ve yet read about law school teaching remains an article from 1948 that I read at the start of my teaching career almost 24 years ago: Lighthouse No Good by Professor William L. Prosser. It’s now 2020 and despite all the advancements in law school pedagogy and the kind of classroom technology available to us that Prosser could never have dreamed of, it seems to still be the case, just as he observed more than 80 years ago, that no matter what we do as teachers, the fog keeps coming in just the same.



November 2, 2020 | Permalink | Comments (0)