Monday, April 26, 2021

Explicit Instruction in Legal Education: Boon or Spoon? by Beth A. Brennan

I have previously argued against the traditional law school teaching technique of "hiding the ball."  ( How to Help Students from Disadvantaged Backgrounds Succeed in Law School)  Rather, research has shown that scaffolding, giving students part of the answer so that they can focus on what you want them to learn, is a much more efficient technique than implicit learning.  Likewise, while professors should draw information out of students' minds, they eventually need to summarize the material so that the students can see that they have learned the right things.

Beth A. Brennan has written an article in which she shows in detail that explicit teaching is better than implicit teaching.  She notes that explicit teaching is better for students who come in with weaker backgrounds; it helps them catch up better than hide the ball.

Explicit Instruction in Legal Education: Boon or Spoon? by Beth A. Brennan.


While legal education unquestionably hones students’ critical thinking skills, it also privileges students who are faster readers and have prior background knowledge or larger working memories. According to the prevailing mythology of law school pedagogy, students learn by struggling to find their way out of chaos. Only then is their learning deep enough to permit them to engage in critical thinking and legal reasoning.

Learning theory and research suggest this type of “inquiry” learning is not an effective way to introduce novice learners to a subject. Lacking basic substantive and procedural knowledge, students’ struggles are often unproductive and dispiriting.

Initial explicit instruction early in a student’s learning more predictably creates stable, accurate knowledge. Because higher-order thinking depends on having some knowledge, ensuring students have a strong foundation of substantive and procedural knowledge increases the likelihood that they will develop critical thinking skills.

However, legal education uniformly dismisses anything that looks like “spoon-feeding.” If the academy is going to incorporate learning theory into its pedagogy, it must understand and articulate the differences between spoon-feeding and explicit instruction.

This Article examines explicit instruction as a pedagogical tool for legal educators. Part I examines cognitive psychological theories of thinking and learning to understand the differences between spoon-feeding and explicit instruction and explain why initial explicit instruction is useful. Part II delves into the cognitive differences between novices and experts that support initial explicit instruction. Part III examines experts’ cognitive barriers to effective teaching. Part IV provides examples of how explicit instruction can be used in the law school classroom.

The Article concludes that the time is ripe for the academy to bring explicit instruction out of the shadows, and to incorporate initial explicit instruction into legal education.

(Scott Fruehwald)

P.S. Teaching explicitly is not "dumbing it down" for the weaker students.  Research has shown that all students benefit from properly structured explicit teaching.

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I agree completely, but I think providing upfront orientation is even more important than providing a summary at the end of a unit. Throwing students into a difficult case without first providing them some legal context is a form of hazing in my view, and not consistent the good habits in the practice of law, where an associate should consult a secondary source for general orientation on an unfamiliar topic before diving into primary authority in the controlling jurisdiction. I think it’s a closer question whether to provide students a summary at the end. That might be a task that should be left to the students if we have provided them with introductory orientation to a topic, opportunities to analyze and synthesize cases, and factually rich written exercises to make their learning more concrete.
To be clear, we do not hide the ball by exposing students to legal uncertainty. Even when we can form a consensus about the general rule that emerges from a synthesis of cases, the exercises should demonstrate that application of that rule to facts at the margin can create a real dispute with reasonable arguments for both sides. That’s why we have litigation and settlements, and why attorneys make a living trying to analogize and distinguish case law. Most essay questions will raise issues with facts in that gray area, inviting arguments for both sides, so it certainly is not hiding the ball to decide in class that the answer to a general legal question is “it depends” (on the specific facts of each case), or that the conclusion is debatable on specified facts.

Posted by: CHARLES R CALLEROS | Apr 27, 2021 10:02:10 AM

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