Thursday, January 28, 2021

New Book: Why President Trump Wouldn’t Concede, Why Robinson Cano Took PEDs, and How Advertisers and Social Media Manipulate Us: Cognitive Biases

E. Scott Fruehwald, New Book: Why President Trump Wouldn’t Concede, Why Robinson Cano Took PEDs, and How Advertisers and Social Media Manipulate Us: Cognitive Biases.

Why wouldn't President Trump concede the 2020 presidential election? Why did Robinson Cano and Lance Armstrong take peds? Why doesn't sexual harassment training work? How do advertisers and social media manipulate the public? The answer to all these questions in cognitive biases.

Brain biases clog up our thinking and allow us to be manipulated by others. The human thinking process is imperfect. The brain evolved. Parts of our brains today are remnants of the brains our early ancestors had, brains which had developed to survive under very different conditions from today. These remnants produce cognitive biases–ways of thinking that are different from reality. Individuals need to overcome their cognitive biases in order to think more clearly and avoid being manipulated by others. I have written this book for anyone who wants to understand cognitive biases and begin to overcome them.

Note: Although this book has a different title, it is basically a second edition of Overcoming Cognitive Biases: Thinking More Clearly and Avoiding Manipulation by Others (2017). I have changed the title because I have significantly changed the book’s emphasis and organization. I have centered this version around stories concerning cognitive biases, and how they make people act in strange and stupid ways. I believe that this new emphasis will better help the reader recognize and overcome cognitive biases, as well as being more entertaining. I have added a great deal of new material to this book (about 40%) and deleted material from the previous version.

(Scott Fruehwald)

January 28, 2021 | Permalink | Comments (0)

Thursday, January 7, 2021

Adam Lamparello: A Reply to Of Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy

I invited Adam Lamparello, a legal education expert and former Associate Dean for Experiential Learning and Associate Professor of Law at Indiana Tech Law School, to write a reply to the implicit bias portion of the Bahadur and Zhang article below.  Dean Lamparello has previously written an article on implicit bias, The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education.


After reading “Of Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy,” I commend the authors, Rory Bahadur and Liyun Zhang, for writing a timely and well-written article that addresses important questions regarding legal education and pedagogy. Indeed, this article can and should promote discussions on legal education, curricular reform, and student success. Having said that, I’d like to offer the following comments on the authors’ arguments:

First, the authors do not address sufficiently the substantial empirical evidence largely debunking and thus discredited learning style theory.[1] Indeed, there is a mountain of empirical evidence concluding that learning style theory is fatally flawed. The authors should explain precisely why this research is flawed, whether due to methodological problems, sampling size errors, a failure to consider other variables, or other limitations. Unfortunately, the article selectively cites sources that support the authors’ position but do not address the many sources that profoundly and credibly disagree with their position.

Second, the authors fail to operationalize “white privilege” or control for variables in the law school learning context that may affect whether whites enjoy any privilege at all. For example, how does white privilege benefit whites who are raised in poverty? Who have diagnosed mental illnesses? Who have diagnosed learning disabilities? Who have substance abuse issues? Who were raised in abusive households? And why should we assume that the Socratic Method inherently benefits all or even most whites? In short, the issue of whether “white privilege” exists in the law school learning environment, and whether this alleged “privilege” exists across all or most law schools, is an empirical question. Generalized statements, such as those claiming that the curriculum benefits white males and is the product of white privilege, are tantamount to making allegations without any proof whatsoever.

Third, the authors make no attempt to operationalize “implicit bias” or address the substantial empirical evidence suggesting that implicit bias theory is fatally flawed.[2] For example, the authors do not address the many studies demonstrating that implicit bias does not predict biased behavior and that the Implicit Association Test has little, if any, ability, to predict biased behavior. For example:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, ‘produce a challenge for this area of research.’[3]

Additionally, the authors fail to consider whether other variables, such as explicit bias (e.g., over racism, sexism, and homophobia) produce biased behavior, or attempt to quantify implicit bias’s role in biased behavior when considering these factors. Furthermore, the article selectively cites sources that support the authors’ position, but do not address the many sources that profoundly disagree with their position.

Fourth, the authors fail to quantify the causal or correlative effect between white privilege, implicit bias, and law school success. For example, how do white privilege and implicit bias manifest in a first-year Torts or Contracts class at a particular law school? How do white privilege and implicit bias manifest in specific law schools and what is the degree of this manifestation among law schools? Surely, the existence or prevalence of such privilege, if it impacts law school performance and the quality of legal education, likely differs based on factors including, but not limited to, the diversity of an incoming class, the diversity of a law school’s faculty, the quality and accessibility of the professors, the quality of a school’s academic support program, incoming class profile (e.g., LSAT and GPA medians), and the policies regarding grading and attrition. Without such quantification, the authors’ arguments consist of normative generalizations absent sufficient factual justifications. And once again, the article selectively cites sources that support the authors’ position but do not address the many sources that profoundly disagree with their position.

Fifth, the authors’ condemnation of the Socratic Method lacks merit. The Socratic Method trains students to think analytically, which is perhaps the most important skill students need to be competent lawyers and which many students, especially those with low LSAT scores (yes, the LSAT matters), often lack.  Of course, the Socratic method alone is not sufficient, as active and engaged learning (as the authors rightfully endorse), formative and summative assessment, outcomes-based pedagogy, and professional identity and practical skills courses are all critical to developing competent graduates. But the Socratic method is a valuable and indispensable component of legal pedagogy because if students cannot think analytically, they will not succeed professionally.  

Sixth, the authors’ criticism of legal education and endorsement of learning style theory begs the question: what specific curriculum would the authors propose to address their concerns, maximize attainment of learning outcomes, increase bar passage rates, and produce competent lawyers? Unfortunately, the authors propose no such curriculum. Had they done so, they need not reinvent the wheel. Florida International University, which for several years has had the highest bar passage rate in Florida, is the best evidence of a curriculum that trains students to be excellent law students and lawyers. FIU does not admit students with woefully low LSAT scores. FIU provides robust academic support and bar preparation courses. FIU uses an outcomes and assessment-based pedagogy that relies on studies in cognitive neuroscience to maximize student learning.

Seventh, the authors disregard a simple but relevant fact: a law student’s success depends in substantial part on the individual choices that a student makes regarding, among other things, the time and effort dedicated to achieving success in law school and the legal profession. In short, mindset matters. Choices matter. Decisions matter. Relatedly, law schools must stop admitting students who are unlikely to succeed in a program of legal education or pass the bar exam. Otherwise, some law students will find themselves saddled with six-figure, non-dischargeable debt and struggling to find a job that pays above minimum wage. 

Ultimately, I commend the authors for writing about an important subject and sparking a timely and necessary discussion on issues confronting legal education. But the authors’ contentions lack empirical support. They present no empirical studies to supports their contentions and the articles on which they rely largely fail to do so. Without addressing the nuances and complexities of these issues – in an empirically-sound manner – little progress will be made.

[1] See, e.g., Kirschner, Stop Propagating the Learning Styles Myth, Computers and Education 106 (2017) 166-171; American Psychological Association, Belief in Learning Styles Myth May Be Detrimental (May 30, 2019), available at: Belief in learning styles myth may be detrimental (; Newton, P., The Learning Styles Myth is Thriving in Higher Education, Front. Psychol., 15 December 2015 | This is just a small sample of the many empirical studies suggesting that learning style theory is meritless. Instead, the authors critique a single article to support their contention that students possess different learning styles. See Deborah Borman & Catherine Haras, Something Borrowed: Interdisciplinary Strategies for Legal Education, 68 J. LEGAL EDUC. 357 (2019).

[2] See Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from:; see also Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Bot (Aug. 2019), available at:

[3] Id. (internal citation omitted).

(Scott Fruehwald)

January 7, 2021 | Permalink | Comments (0)

Of Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy by Rory D. Bahadur & Liyun Zhang

Here is a new article that will surely create a great deal of controversy within legal education.  There is much I agree with, but there is also much with which I disagree.  Adam Lamparello has written a reply to the implicit bias portion of this article, which I have posted directly above.  Jim or I (or both of us) will comment on the learning styles portion shortly. 

Of Socratic Teaching and Learning Styles: Exposing the Pervasiveness of Implicit Bias and White Privilege in Legal Pedagogy by Rory D. Bahadur & Liyun Zhang.


"Legal educators who deny the efficacy of utilizing learning style theory inaccurately support their dismissal through misunderstanding and misrepresenting the science supporting such techniques. These erroneous conclusions are often the result of implicit bias and dysconscious racism favoring dominant white male norms and privileges. Such denial is not only disingenuous and inaccurate, but also highly detrimental to legal education, perpetuating a system that discourages and devalues the contributions and efforts of minority students.
Learning style preferences are a product of a student’s cultural background. Legal educators who recognize this and adapt their teaching methods to accommodate the modal preferences of an increasingly diverse student population encourage student motivation, confidence and ultimately success. Those who embrace learning style theory do not suggest that students can only be taught, or learn, in their preferred mode. Instead, they recognize the proven value of introducing new subject matter to adult learners mindful of these differences.
This paper makes four recommendations toward increased understanding and effective use of multimodal teaching methods; (1) critically examine the misunderstanding and misapplication of scientific data that supports the effectiveness of adapting teaching methods to student learning preferences, including the prevalent nomenclature mistakes made by detractors that conflate the concepts of learning styles, preferences and methods, as well as the concepts of teaching and learning; (2) recognize implicit biases and other forms of racism that interfere with the ability to reach all students; (3) show respect for our culturally diverse students by acknowledging their differences and adapting our methods accordingly; and (4) encourage legal educators to engage in cross disciplinary collaboration with fields such as neuroscience and educational psychology which have already made headway in proving the learning benefits of multimodal instruction.
Ultimately, there are voices from the privileged teaching class of the academy mischaracterizing learning science and teaching strategies to validate the mainstream way we have taught in law schools for more than a century. This mischaracterization perpetuates the exclusion of minority students from legal education, and the mischaracterization is palatable and readily accepted because of implicit bias and systemic racism."

(Scott Fruehwald)

January 7, 2021 | Permalink | Comments (0)

Violations During the Pandemic of Law School Faculties’ Authority to Decide Methods of Instruction

Professor Richard Neumann has raised some important issues on how administrators have been handling the Covid-19 pandemic.

Violations During the Pandemic of Law School Faculties’ Authority to Decide Methods of Instruction by Richard K. Neumann.

"During the pandemic, some universities have required as much “in person” teaching as possible everywhere on campus — including a university’s law school. Universities and their administrators who did this were wrong for three reasons. First, their fears that students would not enroll unless taught “in person” turned out to be unfounded. National postgraduate and professional school enrollment, including law school enrollment, actually increased even though almost half the country’s colleges and universities began the fall semester or quickly went primarily or entirely online.

Second, these weren’t decisions about public health alone. They were also decisions about the quality of education. “In person” usually turned out to be an untested and primitive form of hybrid instruction that has no track record and has never been used on any scale before. During the pandemic the choice has never been between genuine “in person” teaching and online teaching. Public health concerns continually put some students online because of contagion risks. The real choice has been between fully online teaching (nobody in a classroom) and simultaneous hybrid teaching (some students in a classroom while others participate online). In many but not all situations, simultaneous hybrid teaching is demonstrably worse than fully online teaching.

Third, university administrators who made unilateral decisions about methods of instruction violated basic rules on shared governance under the nationally authoritative 1966 AAUP Statement on Government of Colleges and Universities. The AAUP has already begun investigating some colleges and universities on this basis. And to the extent a university’s unilateral decisions included a law school, the university’s actions also violated the American Bar Association’s accreditation standards and the Association of American Law Schools’ Bylaws. A law school needs ABA accreditation for its graduates to take the bar exam, and nearly all law schools are AALS members. The ABA accreditation standards and AALS Bylaws combine to require that decisions about modality — modes of teaching — be made by a law school’s faculty, not by administrators elsewhere and imposed on the law school."

(Scott Fruehwald)

January 7, 2021 | Permalink | Comments (0)

Monday, January 4, 2021

The Disparate Treatment of Clinical Law Faculty by Robert Kuehn

The Disparate Treatment of Clinical Law Faculty by Robert Kuehn.


"In her recent presidential message, Abolish the Academic Caste System, the president of the American Association of Law Schools (AALS) called on law schools to address the caste system within law faculties by providing parity in security of position and salary to non-tenure/tenure track faculty, such as the overwhelming majority of law clinic and externship instructors.[i] Data from the just completed Center for the Study of Applied Legal Education (CSALE) 2019-20 Survey of Applied Legal Education of  95% of law schools and 1,300 law clinic and externship instructors show widespread disparate treatment of clinical instructors (i.e., law clinic and externship instructors) and a lack of progress in providing parity between those who teach in law clinics and externships and those teaching doctrinal courses.[ii]"

Of course, the above is similarly true for legal writing faculty.

(Scott Fruehwald)

January 4, 2021 | Permalink | Comments (0)