Legal Skills Prof Blog

Who will march for Asian Americans after the killings in Atlanta?

My former Hofstra colleauge, Alafair Burke has a piece in the Washington Post about the recent violence against Asian-Americans.

Opinion: Who will march for Asian Americans after the killings in Atlanta? by Alafair Burke.

Excerpts:

"Between March 19, 2020, and Feb. 28, 2021, the nonprofit group Stop AAPI Hate collected 3,795 first-person accounts of incidents ranging from casually racist comments to vicious assaults. According to data from California State University at San Bernardino’s Center for the Study of Hate and Extremism, in 2020, anti-Asian hate crimes in 16 of the country’s largest cities increased almost 150 percent over the previous year, even as the overall number of hate crimes reported to the police declined."

"These are painful statistics and stories — especially when it feels like no one actually cares."

"Having marched in my share of streets, I am left asking, who will march for us? Racism against Asian Americans often goes unrecognized and unchallenged because of stereotypes that depict Asian Americans as people who don’t need protection from abuse — or who don’t deserve it."

"As I read the coverage of the Atlanta shootings, I was sad and angry and frustrated. I found myself thinking, If this were happening to any other racial group, we’d treat it differently."

I have been very concerned for my Asian-American friends since the beginning of the pandemic.  There is a lot of ignorance in our country.

(Scott Fruehwald)

The Myers-Briggs Personality Test and Theory-Induced Blindness in Legal Scholarship

Last week, I posted about my new article, Theory Induced Blindness in Legal Scholarship.  A couple of days ago, I ran across another article that questioned the Myers-Briggs personality test, which has been used in psychology, education and business for many years.  (here)

The article calls the test BS, then lists several reasons why:

• Reason 1: It Is Based on Carl Jung’s Ideas
• Reason 2: The Test Lacks Predictive Validity: It Does Not Predict Outcomes in the Real World
• Reason 3: Human Personality Falls Along Continua, Not Into Discrete Categories
• Reason 4: The Types Used by the MBTI Have Arbitrary Boundaries
• Reason 5: The Myers-Briggs Has Poor Reliability
• Reason 6: The Myers-Briggs Misleadingly Implies That There Are Big Differences Between Types and Minimal Differences Within a Type
• Reason 7: When You Turn a Continuous Variable Into a Categorical One, You Throw Away Information
• Reason 8: The MBTI Doesn’t Measure Neuroticism

The author then asks why people still believe in the test, stating "I'm not sure why the Myers-Briggs is so popular despite its shortcomings. But candidate reasons include: (1) it has excellent advertising and money to back it; (2) the test is easy to take, easy to administer and easy to calculate; (3) the results are easy to interpret and understand; (4) the test tactfully avoids telling the reader anything negative; and (5) some evidence hints that we might be cognitively disposed to think in terms of dichotomies and dualisms rather than continua (introverted vs. extraverted is more intuitive and less cognitively taxing than a continuum with an infinite number of points on it), leading us to prefer the cruder and less accurate model."

My answer: cognitive biases, especially theory-induced blindness.

(Scott Fruehwald)

My Comment to the ABA on the Proposal to Add Professional Identity Development to the Curriculum

 Council of the Section of Legal Education and Admissions

 March 3, 2021

Re: Modification of Standard 303

Dear Committee:

I enthusiastically support the proposal to add professional identity development to the law school curriculum.  This would be a significant change in legal education because professional identity training helps develop the inner lawyer.  It also helps students learn how to think like self-directed professionals.

Professional identity training is not like the standard law school ethics class.  Ethics involves learning the rules of professional conduct, much like students learn the rules in Civil Procedure.  In contrast, professional identity is a lawyer's personal legal morality, values, decision‑making process, and self‑consciousness in relation to the practices of the legal profession (legal culture).  The "difference between a lawyer told to be professional who acts in this way, and one who acts this way because of her professional identity, is that the lawyer herself believe[s] that these are the ways she should act."  (Benjamin V. Madison III) Professional identity development requires self‑reflection and the "nurturing of a sense of professional self‑consciousness."  (Id.)  In sum, professional identity provides the framework that a lawyer uses to make all her decisions.

In addition, in 2007, the Carnegie Report, designated three "apprenticeships" for educating today's lawyers: 1) the "cognitive apprenticeship," which focuses on expert knowledge and modes of thinking, 2) the "apprenticeship of practice," which educates students in "the forms of expert practice shared by competent practitioners," and 3) the "apprenticeship of identity and purpose," which "introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible."  The Report concluded that current legal education does a good job teaching the first apprenticeship, but a poor one teaching the other two.  Adding professional identity development to the curriculum would help cure the lacuna in the third apprenticeship.

Materials to teach professional identity training are already available.  There are two books on professional identity development:  Patrick Emery Longan, Daisy Hurst Floyd, Timothy W. Floyd, The Formation of Professional Identity: The Path from Student to Lawyer (2019) and E. Scott Fruehwald, Developing Your Professional Identity: Creating Your Inner Lawyer (2015), as well as several law review articles.

Best,

Scott Fruehwald

Theory-Induced Blindness in Legal Scholarship

I have just posted a new article on SSRN:

 

Theory-Induced Blindness in Legal Scholarship.

 

The truth matters, and, consequently, how scholars seek the truth also matters. Scholars use theory as a framework to help them attain the truth. Accordingly, a scholar's theoretical approach must be accurate; it must not be tainted in any way. Theory-induced blindness taints truth-seeking. Theory-induced blindness has contaminated legal scholarship in many ways.

This article will examine theory-induced blindness in legal scholarship and demonstrate how it has affected the truth of that scholarship on both ends of the ideological spectrum. Part II will introduce the basics of theory-induced blindness. Parts III-VII will present examples of theory-induced blindness in Classical Legal Thought, writing legal history, traditional law and economics, post-modern legal scholars' social constructionist arguments, and two professors' defense of learning style theory. Finally, the conclusion will discuss discuss the best solution for avoiding theory-induced blindness--evaluating theories with critical thinking.

 

(Scott Fruehwald)

ABA Proposes to Add Professional Identity Training to Law School Opportunities

We have advocated the addition of professional identity training to the law school curriculum many times on this blog.  Despite our efforts and those of many others, only a few law schools offer professional identity training.  This may soon change.  The Council of the Section of Legal Education and Admissions to the Bar has proposed a change to Standard 303 that would require law schools to provide substantial opportunities for "the development of professional identity."  (here)

Here is the proposed change to Standard 303:

Standard 303. CURRICULUM:. . .

(b) A law school shall provide substantial opportunities to students for:

(3) the development of a professional identity.

New Interpretation 303(5) would state:

"Professional identity includes, but is not limited to, the knowledge, skills, values and morals, goals, and personality traits considered foundational to successful legal practice. Students should have frequent opportunities to develop their professional identity during their time in law school, starting in the first year. These opportunities should not take place solely in one course but should be varied across the curriculum as well as in co-curricular and professional development activities as the development of a professional identity requires student reflection and growth over time."

If adopted, this program would be a significant change in the law school curriculum.  Professional identity development is very different from the current legal ethics class.  Ethics is the rules of professional conduct, while professionalism is the ability to act in a professional manner, such as politeness, thoroughness, and getting work done on time. In contrast, professional identity is a lawyer’s personal legal morality, values, decision-making process, and self-consciousness in relation to the practices of the legal profession (legal culture).  It is the “difference between a lawyer told to be professional who acts in this way, and one who acts this way because of her professional identity, is that the lawyer herself believe that these are the ways she should act."  (Benjamin V. Madison III)  It requires self-reflection and the "nurturing of of a sense of professional self-consciousness.  (Id.)  In sum, professional identity provides the framework that a lawyer uses to make all her decisions.

I strongly support the adoption of this proposal.  You can send comments on the proposal to Fernando.Mariduena@americanbar.org until March 31.

(Scott Fruehwald)