Thursday, April 29, 2021

Very Troubling Report on ABA Experiential Requirement

Robert Kuehn has produced a thorough, but troubling, report on the effect of the new six-credit requirement in ABA Standard 303(a)(3).  Simply stated, the new requirement has made very little change in law students' ability to take hands-on classes.

TaxProf Blog op-ed:  Implementation of the ABA’s New Experiential Training Requirement: More Whimper Than Bang, by Robert Kuehn

Excerpts:

"When the ABA adopted a new experiential training requirement in 2014, there was hope it would spur law schools to significantly change the way they prepared students for legal practice. The new six-credit requirement in ABA Standard 303(a)(3) was less than the fifteen credits proposed by some educators and did not include a mandate for a law clinic or externship experience. Nonetheless, the six credits were an improvement over the ABA’s previous “substantial instruction” in professional skills requirement.[1] But data from the initial implementation of the new experiential requirement suggest its effect has been more of a whimper than the bang some hoped for, with little evidence it has spurred legal education to enhance the ability of students to get hands-on training in professional skills."

"Data from the first two years of the new six-credit requirement in 2019 and 2020 show no increase in the positions available to students in clinics or simulations and even a decrease in actual enrollment in field placement courses, when normalized to address fluctuations in nationwide law school enrollment. While some law schools have made important changes to their curriculum, the graph below indicates that, on average, schools have not reported positive changes in law clinic, field placement, or simulation data since the ABA’s adoption of the new experiential standard in 2014."

"The New York Court of Appeals followed the ABA in 2015 with its own new skills competency standard for bar candidates, proclaiming that 'the goal of ensuring effective, ethical and responsible legal services in New York requires more than what the new ABA Standards provide. . . .'  The graph below shows that the New York competency standard, indeed, does not appear to have spurred New York’s law schools to noticeably enhance their professional skills training of students or to provide more training than schools in states following only the ABA requirement."

"Data from the recent Center for the Study of Applied Legal Education (CSALE) 2019-20 Survey of Applied Legal Education of 95% of law schools also show little measurable effect from the new experiential training standard."

Why has there been so little progress? "In both surveys, however, significant numbers of schools simply restructured existing courses to meet the experiential training definition, including merely relabeling parts of the first-year required legal writing course as 'experiential' or offering a one-credit simulation component to a doctrinal course."

In sum, "To the extent the ABA’s new six-credit experiential requirement was intended to provide law students with more meaningful hands-on training in important professional skills, its own data do not show that intended result. In addition, surveys of schools on their implementation of the new training requirement do not show significant gains in skills training as a result of the new accreditation standard."

Professor Kuehn asserts, "It is time for the ABA to address these deficiencies by at a minimum requiring schools to report actual enrollments in law clinic and simulation courses so that the ABA can truly judge the effect of its requirement and prospective applicants to law schools will not continue to be potentially deceived by reports of ethereal “available” law clinic opportunities.

Yet students, and the clients they will soon represent in practice, deserve more than just enhanced reporting requirements. The ABA’s six-credit experiential requirement remains far below the skills training other professional schools require of their students. Two recent studies on legal education have highlighted the need for greatly enhanced skills training, including mandatory clinical training prior to bar licensing. The ABA should heed these calls for reform and revisit the proposals for fifteen-credits of experiential coursework and a mandatory, live-client clinical experience for all J.D. students."

(Scott Fruehwald)

 

 

April 29, 2021 | Permalink | Comments (1)

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.

Abstract

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.

April 26, 2021 | Permalink | Comments (1)

Saturday, April 24, 2021

Idea Laundering in Legal Scholarship

Yesterday, Eugene Volokh had an interesting post on the Volokh Blog.  In an article discussing mass shootings, he noted that an article in a major law journal (apparently, Yale) observed, "White men have committed the vast majority of mass shootings in the United States during the last thirty years."   Volokh checked the original statistics, and he found that this claim was wrong.  He declared, "But when one goes to the source, one sees that it reports 107 mass shootings, for 103 of which the shooter's race was indicated. But of those 103, 60 were white: 58%, hardly a 'vast majority.'"  (Also, 58% is slightly less than the percentages of whites in the overall population.)

He then argued, "That, though, is the point: Even seemingly credible sources, such as a serious scholar in a serious academic journal, make errors. If you're writing on the subject and relying on the source, don't let their errors become your errors: Read, quote, and check the original source, going as far back in the chain of citations as is feasible."  Consequently, "I often urge my students to always read, quote, and cite original sources, rather than relying even on seemingly trustworthy intermediate sources (such as law review articles or court opinions)."

Great advice!  I would go one step further, however, and check for "idea laundering."

A recent article has observed, "Idea laundering refers to a process that may be growing more common in academic publishing. It involves the capture of peer review processes by activists to create the false impression that certain ideologically and rhetorically useful claims have scientific credibility, even when, by conventional scientific standards of rigor, logic, and strong evidence, the claims command no credence.

The process at its most extreme works like this. Some idea is presented or even claimed to be true in a book chapter or article, with little or no evidence. It might even be done reasonably, as speculation, or it might involve a researcher leaping to an unjustified conclusion based on weak evidence. The idea, now published in a peer reviewed journal, can now be cited by other researchers publishing in other peer reviewed journals as 'evidence' for the validity of the claim. In the total absence of validity evidence, new researchers can then further cite one another's peer reviewed publications in support of the claim."

The authors then apply idea laundering to microaggressions: "The CMC appears to be a product of idea laundering because it is currently ricocheting through psychology scholarship and the broader culture as if its validity has already been scientifically established. The problem is, discovery that the emperor has no clothes (at least not yet) requires the deep dive into primary sources that most writers are not inclined to, or don't have time to, undertake."

The authors declare that "What's needed is 'severe testing.' A severe test is one that will find flaws in a claim, including alternative explanations, if they are present. After surviving severe testing, application of claims to the real world then require additional research that is plausibly described as an order of magnitude more difficult. For example, far more validity work is needed to identify which types of behaviors consistently stem from prejudice and are perceived as slights."

Idea laundering has also been observed by the popular press.  For example an article in the Wall Street Journal stated, "You’ve almost certainly heard some of the following terms: cisgender, fat shaming, heteronormativity, intersectionality, patriarchy, rape culture and whiteness.

The reason you’ve heard them is that politically engaged academicians have been developing concepts like these for more than 30 years, and all that time they’ve been percolating. Only recently have they begun to emerge in mainstream culture. These academicians accomplish this by passing off their ideas as knowledge; that is, as if these terms describe facts about the world and social reality. And while some of these ideas may contain bits of truth, they aren’t scientific. By and large, they’re the musings of ideologues."

Of course, idea laundering is not limited to the far left.  Paul Campos has asserted concerning claims that Kamala Harris was not an American citizen, "All this is about idea laundering. It's about using right wing money to hijack American research universities, so their academic reputations can be exploited to put a cultural stamp of approval on the most extreme forms of cultural and political reaction."

In other words, it's about making the kind of thing Eastman is paid to disseminate academically respectable enough so that it has to be taken seriously as part of academic and cultural discourse - because refusing to do so would then just be an example of how PC Cancel Culture is inimical to the free and open exchange of ideas."

Finally, idea laundering is not limited to ideological writings; it can appear in neutral writing.  For example, I have written a great deal on the neuromyth of preferred learning styles.  (Theory-Induced Blindness in Legal Scholarship) The reason this neuromyth multiplied is because secondary sources copied other secondary sources without going back to the original scientific research and checking for dissenting views.

In sum, idea laundering can be a significant problem in scholarship, including legal scholarship.  A rigorous scholar checks original sources to establish the accuracy of facts and to determine whether idea laundering has occurred.  Legal scholars need to adopt this and other critical thinking techniques.

(Scott Fruehwald)

 

 

April 24, 2021 | Permalink | Comments (0)

Wednesday, April 21, 2021

Formation Without Identity: Avoiding a Wrong Turn in the Professionalism Movement by Eli Wald

I have mentioned several times that 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)  I anticipate that the Council will take up the matter at their May meeting.

Just in time, Eli Wald has posted an important article on professional identity: Formation Without Identity: Avoiding a Wrong Turn in the Professionalism Movement.  The key point of the article is that law schools should teach professional identity in a contextualized manner: "Introducing students to generalized responsibilities and values of the profession such as competence, loyalty, justice, equality, fairness, integrity,and ongoing professional learning cannot serve as a suitable professional foundation because the practice of law is increasingly diverse and contextualized. Different lawyers experience the responsibilities and values of the profession in radically different ways, because attorneys practice in many areas of law with varying organizational structures and serve distinct types of clients with contrasting objectives. In short, although professional identity formation must be grounded in the core responsibilities and values of the profession, it must also acknowledge and introduce students to the immense variety of professional roles, circumstances,and contexts in which professional identity is forged and tested."

I agree with Professor Wald; law schools shouldn't teach professional identity from an abstract, one size fits all point of view.  I think he has done an excellent job of dividing the legal profession into different areas and showing how professional identity works in these areas.  I also feel that he has shown how law schools can effectively teach professional identity in a contextualized manner.

I go one step further in my book, Developing Your Professional Identity: Creating Your Inner Lawyer (2015, 2020).  I advocated that law schools help students develop their individual professional identities.  In the Preface I wrote, " I want you to think about who you will be as a lawyer–to consciously develop your professional identity. You need to reflect on how you will fit into the legal world. What are the ethics, practices, and conventions of the legal world? How do I fit my personal morality into this world?"  Throughout the book, I created exercises to help students do this.

With the new ABA proposal, legal education stands at a cross-roads.  Do we continue to educate students in the abstract manner we have in the past, or do we prepare students for the complicated realities of the 21th century world?  Society depends on how the ABA Council and legal educators answer this question.

(Scott Fruehwald)

Abstract

Critics calling for a law school reform agenda centered around integrating skills and formation of professional identity into the mainstream of legal education may have their day. External pressures, including increasingly competitive practice realities, heightened client sophistication, new technologies, rising stratification within the profession, and attorney under- and unemployment are opening the door for policy entrepreneurs to begin the process of reforming legal education.

At this defining moment of its existence, however, the professionalism movement grounded in the 2007 Carnegie report titled Educating Lawyers is at risk of making a mistake that may thwart its compelling agenda. Rather than base their identity formation schema on the actual professional identity of lawyers, Educating Lawyers and its advocates have accepted the abstract professional identity rhetoric of the organized bar as the basis of their model. This abstract rhetoric, impressive and well-rehearsed as it may be, is divorced from the actual identities of lawyers and therefore cannot adequately ground the identity formation of law students.

Introducing students to generalized values of the profession such as competence, loyalty, justice, equality, fairness, integrity, and ongoing professional learning cannot serve as a suitable professional foundation because the practice of law is increasingly diverse and contextualized. Different lawyers experience the responsibilities of the profession in radically different ways, because attorneys practice in many areas of law with varying organizational structures and serve distinct types of clients with contrasting objectives. Although professional identity formation must be grounded in the core values of the profession, it must also acknowledge and introduce students to the immense variety of professional roles, circumstances, and contexts in which professional identity is forged and tested. In particular, in the face of increasingly competitive practice realities stressing competence, zeal, loyalty to clients, and instrumental reasoning while deemphasizing morality, justice, equality, and the public interest, law schools must instill these core latter commitments of the profession in their students in context.

This article argues that the professionalism movement must avoid developing an integrated model of legal education relying on the abstract professional identity rhetoric of the organized bar and the existing elite law school model. Rather, reform efforts must be centered upon developing a contextual model that considers how actual lawyers experience professional responsibilities and values: that is, how they develop professional identities. Specifically, because most students, graduates of non-elite law schools, are likely to experience such duties and values in circumstances different than their elite counterparts, non-elite law schools must not accept the elite paradigm “as is.” Instead, they must develop a model that introduces their students to the professional challenges they are likely to encounter. Elite law schools, in turn, must revise their traditional client-centered instrumentalist model and commit to inculcating the duties and values of morality, justice, equality, and commitment to the public interest in the contexts in which their students will experience them. The article offers a blueprint for professional identity formation for the majority of non-elite law schools and the mainstream of legal education, as well as for elite law schools.

April 21, 2021 | Permalink | Comments (0)

Saturday, April 17, 2021

Microaggression Theory Debunked?

There are many pop, pseudo-scientific theories floating around out there.  One that I have written about extensively is the disproven theory that students have "learning preferences."  (Theory-Induced Blindness in Legal Scholarship).  Now, a law professor and a leading psychologist have written an article that tries to debunk microaggression theory. Read the article, and decide for yourself.

Microaggressions, Questionable Science, and Free Speech by Edward Cantu & Lee Jussim.

Abstract

The topic of microaggressions is hot currently. Diversity administrators regularly propagate lists of alleged microaggressions and express confidence that listed items reflect what some psychologists claim they do: racism that is, at the very least, unconscious in the mind of the speaker. Legal academics are increasingly leveraging microaggression research in theorizing law and proposing legal change. But how scientifically legitimate are claims by some psychologists about what acts constitute microaggressions? The authors—one a law professor, the other a psychologist—argue that the answer is “not much.” In this article, the authors dissect the studies, and critique the claims, of microaggression researchers. They then explore the ideological glue that seems to hold the current microaggression construct together, and that best explains its propagative success. They close by warning of the socially caustic and legally pernicious effects the current microaggression construct can cause if academics, administrators, and the broader culture continue to subscribe to it without healthy skepticism.

Excerpts:

"By “current microaggression construct” (hereafter CMC), we mean the current definition of microaggressions and the set of claims microaggression researchers make about them, the most important of which are claims about what acts count as microaggressions and why."

"One risk is that, after some claim becomes a popular research topic in another field, but before research establishes that claim as valid, it will take off like wildfire in legal scholarship without sufficient gatekeeping. This is what has happened with microaggressions: educators, scholars, and administrators have accepted the CMC as valid even though psychologists have not established its scientific legitimacy."

"The possible reasons for this are manifold. First, academics and administrators may have a willingness to accept a claim at face value because they deem the concept to be useful—ideologically, for example—such that confirmation bias cancels vigilance."

" In short, it is a mistake to believe that, merely because an idea appears frequently in academic publications, it constitutes scientific fact."

"After reviewing scholarship in which psychologists attempt to confirm the legitimacy of the CMC, and in which they debate the issue with dissenting psychologists, we conclude that the current operationalization of the CMC in social justice discourse, legal scholarship, and education administration is significantly unwarranted."

"We are also concerned about how the current propagation of the CMC, given its lack of adequate bases and therefore its limited utility, might have the primary effect of proving socially caustic—and therefore counterproductive in the quest for social justice—without countervailing benefits."

"Therefore, we recommend that scholars and administrators—and everyone else for that matter—generally refrain from relying on commonly propagated lists of microaggressions as reflecting anything meaningful, at least until psychologists perform the significant amount of empirical work left to be done to render the CMC scientifically valid and useful."

"There is little to no basis for academics and administrators to responsibly accept commonly propagated lists of microaggressions as reflecting actual microaggressions."

"Microaggression researchers’ fundamental challenge is one they so far have failed to meet: they have not provided sound scientific bases for labeling as microaggressions most of the items they so label."

"As such, the legitimacy of lists of microaggressions depends on researchers being able to divine objectively racist meaning in facially innocuous acts that others cannot detect. And the propagative success of the CMC has relied on the public believing that researchers are able to do just this. This assumed ability to discern hidden forces and essences in social phenomena is now common in social justice discourse and critical academic theory."

"Notwithstanding, the evidence to support the claim of intrinsic racism is non-existent. Such evidence is conceivably obtainable. Researchers would need to: (1) assess levels of racism among a group of Whites; (2) assess whether those levels of racism perfectly or very substantially correlate with the likelihood of microaggression commission; and (3) rule out alternative explanations for the commission of alleged microaggressions. Nothing provided so far by microaggression researchers comes close to meeting this threshold. Rather, researchers seem to simply assume the respective embedded meanings, and therefore declare statements and questions to be microaggressions essentially by fiat."

"Of course, the assumption of embedded racist meanings is not stated as an assumption, but a reliance on intuitive assumptions is what researchers’ methodology in this regard seems to boil down to."

"Of course, this methodology simply makes the study participants’ intuition controlling rather than the researchers’, but the problem remains: this subjective self-reporting is clearly insufficient for showing that listed microaggressive items have objectively embedded in them racist messages. It merely demonstrates that some POC suspect such subtle racism is at play when hearing some listed microaggressions."

"In short, the methodology generally employed to generate lists of microaggressions has been to simply ask POC or other psychologists (“diversity experts” for example) to think of ways in which racism can subtly manifest in language, then to generate examples of statements or questions that they intuitively conclude reflect this subtle racism. The problem with this methodology should be obvious: how do we know the respondents are correct?"

"So the problem remains: microaggression researchers, no matter how many times they respond to criticism, seem to be unable to substantiate their designation of listed acts as microaggressions consistent with their own definitions of the phenomenon. The intractability—and the significantly discrediting nature—of this evidentiary problem with the CMC is highlighted when one engages in steelmanning attempts to reconstruct the methodology of the CMC in order to ground the relevant conclusions in something measureable and verifiable."

"Idea laundering refers to a process that may be growing more common in academic publishing. It involves the capture of peer review processes by activists to create the false impression that certain ideologically and rhetorically useful claims have scientific credibility, even when, by conventional scientific standards of rigor, logic, and strong evidence, the claims command no credence."

"The process at its most extreme works like this. Some idea is presented or even claimed to be true in a book chapter or article, with little or no evidence. It might even be done reasonably, as speculation, or it might involve a researcher leaping to an unjustified conclusion based on weak evidence. The idea, now published in a peer reviewed journal, can now be cited by other researchers publishing in other peer reviewed journals as “evidence” for the validity of the claim. In the total absence of validity evidence, new researchers can then further cite one another’s peer reviewed publications in support of the claim."

"The CMC appears to be a product of idea laundering because it is currently ricocheting through psychology scholarship and the broader culture as if its validity has already been scientifically established. The problem is, discovery that the emperor has no clothes (at least not yet) requires the deep dive into primary sources that most writers are not inclined to, or don’t have time to, undertake."

"What’s needed is “severe testing.” A severe test is one that will find flaws in a claim, including alternative explanations, if they are present. After surviving severe testing, application of claims to the real world then require additional research that is plausibly described as an order of magnitude more difficult. For example, far more validity work is needed to identify which types of behaviors consistently stem from prejudice and are perceived as slights."

"At this point, it should be sufficiently clear that researchers have not come close to meeting their central premise about embedded meanings. Researchers rather assume the validity of the premise, and this assumption is the thread that holds the CMC together. Without it, the CMC would reduce to simply lists of items that people do or say that could be inspired by, or interpreted as, racist. But such a construct would be next to useless for obvious reasons."

"In short, we are concerned that the CMC can be disruptive to what arguably is the most significant prerequisite to effectively combat bigotry: interpersonal connection, goodwill, charity, and a reflexive humanism (as opposed to a reflexive emphasis on difference). In light of this, we think greater vigilance about the integrity of knowledge production is needed, especially when it comes to socially controversial, complicated, and sensitive topics such as the nature and extent of subtle racism."

If you have an opinion concerning this article, please post a comment.  I am very curious as to what legal scholars think about this article.

(Scott Fruehwald)

April 17, 2021 | Permalink | Comments (0)

Thursday, April 15, 2021

The Unsettling Truth about Our Legal System: What the Mind Sciences Can Teach Teenagers About Criminal Injustice by Adam Benforado

Here is an excellent article on how cognitive biases affect criminal justice.

The Unsettling Truth about Our Legal System: What the Mind Sciences Can Teach Teenagers About Criminal Injustice by Adam Benforado.

Abstract

Young people deserve to be told the truth, even the painful truths that shake their faith in our existing institutions and norms. As a law professor, I see one of my main jobs as teaching skepticism. The best lawyers have a skeptical eye. The problem is that in law there is a particularly strong deference to the status quo—indeed, to the past. My students come in assuming that the cases in my Criminal Law casebook were all decided correctly and that the criminal code provisions we study are fair and effective. They assume that the people who gave us our laws, precedents, and procedures were smarter and more enlightened than they are. That’s a dangerous mindset and we would do well—all of us—to combat it. In nearly every other field of inquiry innovation is encouraged and rewarded. So why not in law?

(Scott Fruehwald)

April 15, 2021 | Permalink | Comments (0)

Monday, April 12, 2021

Adding Professional Identity to The Law School Curriculum

Last month, I mentioned that the Council of the Section of Legal Education and Admissions to the Bar had proposed a change to Standard 303 that would require law schools to provide substantial opportunities for "the development of professional identity."  (here)  The comment period has now closed.

There were a large number of comments, most of which were positive. (here)  The most important comment came from the Holloran Center: "The Center strongly endorses the Council's proposed revisions to Standards 303."

However, the Center did note that the interpretation needed to be more focused. ''We propose the modest changes to Interpretation 303-5 discussed below to bring the Interpretation's language into line with the scholarship on fostering each student's formation of a professional identity."

Here is the Council's proposed interpretation: "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."

Here is the Center's suggested change: "Professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices 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."

(Sorry, I could not reproduce the Center's marked up version on this platform  You can find it here.)

 The Center wrote, "The reason for these modest changes is that the Council's proposed Interpretation 303-5 language is overbroad in saying that "Professional identity includes, but is not limited to: the knowledge, skills, values, morals, goals and personality traits considered foundational to successful legal practice." The concept of a student's formation of a professional identity is most clearly articulated in the five Carnegie Foundation for the Advancement of Teaching's studies of higher education for the professions: clergy (2006); lawyers (2007); engineers (2009); nurses(2010); and physicians (2010). In these five studies the Carnegie Foundation defined the formation of a professional identity in the context of the three general apprenticeships that the new entrant to each profession endeavors to master: the cognitive apprenticeship, the practical apprenticeship, and the apprenticeship of professional formation. The cognitive apprenticeship "focuses the student on the knowledge and way of thinking of the profession." In other words, the cognitive apprenticeship concentrates on the analytical skills unique to each profession applied to the doctrinal knowledge of that profession. The second apprenticeship is "a practical apprenticeship to learn skilled know-how and clinical reasoning." These are the practical (not analytical) skills necessary for effective practice and include, for example, all the relationship skills necessary to engage with clients and colleagues. This apprenticeship usually involves practice-based learning. The third apprenticeship is the apprenticeship of formation of a professional identity, which "introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible."

The most important element of a professional identity is internalizing a deep responsibility to the person served (the client) and society in the area of the profession's responsibility. The formation of a professional identity is "an on-going self-reflective process involving habits of thinking, feeling, and acting.” It is a lifelong commitment to continued progress toward excellence and the values and guiding principles of the profession.

The Council’s proposed Interpretation 303-5 defining professional identity includes all three apprenticeships: “knowledge” – the first apprenticeship; “skills” – the second apprenticeship; and “values” and “morals” – the third apprenticeship. We recommend clarifying that professional identity “focuses on what it means to be a lawyer and the special obligations that lawyers have to their clients and society. The development of professional identity should involve an intentional exploration of the values and guiding principles considered foundational to successful legal practice.”

In addition, since the publication of Educating Lawyers in 2007, and particularly in the last several years, with the 2014 Survey of Law Student Well Being11 and the Report of the National Task Force on Lawyer Well Being,2 there has been much greater awareness that the well-being of law students and lawyers is profoundly important to the legal profession and to the clients that lawyers serve. We believe “well-being practices” are just as important to understanding what it means to be a lawyer and to prepare oneself for long-term success as a lawyer as the values and guiding principles that are already referenced in this clause. We therefore recommend inclusion of “well-being practices” as part of this sentence describing professional identity."  (I omitted the footnotes because they do not reproduce well on this platform.  You can find them at the link above.)

Several other commenters agreed with the Holloran Center's more focused language, including an extended comment by the Regent Center for Ethical Formation.  (here). 

As I have stated before, I strongly support this proposal.  Law students need to learn about what it means to be a lawyer as much as they need to learn legal rules and how to apply them.  I also support the Holloran Center's more-focused revision to the interpretation.

(Scott Fruehwald)

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April 12, 2021 | Permalink | Comments (0)

Monday, April 5, 2021

The Many Problems of the U.S. News Law School Rankings. Is it time to end them?

You have probably heard about the many problems with the U.S. New Law School rankings this year.  In fact they were so bad that Brian Leiter was able to pull off a convincing April Fool's joke about them last week.  (here)  In any event, Derek Muller wrote a serious critique of the problems:

The USNWR law school rankings are deeply wounded--will law schools have the coordination to finish them off?

Excerpts:

"But this is, perhaps, the moment for law schools seeking to finish off the USNWR rankings. In the last month, USNWR has had four separate methodological alternations between the preliminary release of rankings and the final release."

"But if there’s a moment to topple USNWR law school rankings, it is now. We’ll see if law schools do so."

(Scott Fruehwald)

 

April 5, 2021 | Permalink | Comments (0)

Saturday, April 3, 2021

The Science of Successful Teaching: Incorporating Mind, Brain, and Education Research into the Legal Writing Course by N.E. Millar

I have long advocated the use of brain science as the basis of legal pedagogy.  Here is a very good article on the subject:

The Science of Successful Teaching: Incorporating Mind, Brain, and Education Research into the Legal Writing Course by N.E. Millar

Abstract

Despite more than 200 years of legal education, “there is almost no quantitative pedagogical research focused specifically on legal education and [its] dominant teaching and learning techniques.” 3 As a consequence, legal educators frequently turn to research in other fields to help inform best practices in law schools. 4

One such field, the emerging discipline of mind, brain, and education (“MBE”) science, offers valuable insights into how the human brain works, how humans learn, and how teachers can teach to optimize learning. While MBE research applies to all facets of teaching and to all subjects, this paper explores its relationship to a specific law school topic that is both increasingly important and difficult to teach: instruction on fundamental writing mechanics in a first-year legal writing course.

As discussed in this article, clear writing is essential to effective lawyering, yet instruction on writing mechanics--the building blocks of clarity--poses unique challenges to law schools and law professors. One way to surmount these challenges is to apply MBE research to teaching mechanics in order to make this instruction more effective.

(Scott Fruehwald)

April 3, 2021 | Permalink | Comments (0)

Friday, April 2, 2021

Bend It Like Beckham? Using Cognitive Science To Inform Online Legal Research and Writing Pedagogy During The Pandemic by James B. Levy

I have been absorbed in finishing a couple of articles recently, so it's time to catch up with this blog.  Let's start with a wonderful new article by my co-blogger, Jim Levy.

Bend It Like Beckham? Using Cognitive Science To Inform Online Legal Research and Writing Pedagogy During The Pandemic by James B. Levy.

Abstract

This article has been submitted for publication in a forthcoming volume of the Nova Law Review devoted to a symposium it sponsored and was held virtually on February 26, 2021 entitled "Engaging LRW Students In The ‘New Normal’ – Teaching In The Time Of COVID." It discusses strategies for adapting legal research and writing lessons developed for the classroom to online videoconferencing platforms like Zoom in response to the shift to online legal education in Spring 2020 due to the COVID crisis. Also included in this article is a section discussing an oft overlooked topic in the literature about online legal education concerning issues to consider in selecting tech equipment for our desktop classrooms that may enhance our effectiveness as online teachers. With respect to online legal research and writing pedagogy, this article suggests an approach informed by principles of cognitive science to make use of online videoconferencing tools in ways that actively engage students, that strive to make our teaching as multimodal as possible given the constraints of these platforms, and that reminds us of the importance of establishing a supportive classroom environment given the stress that students have faced due to the pandemic. This article also incorporates the results of several studies in a small but growing body of empirical research that has examined the effectiveness of remote online teaching during the pandemic in the context of undergraduate and non-law school graduate degree programs. As a result, this article provides a good snapshot of what researchers have concluded works, and doesn’t work, with respect to teaching via a videoconferencing platform in a time of COVID. The author would like to thank the student members of the Nova Law Review for encouraging me to write this article.

(Scott Fruehwald)

 

April 2, 2021 | Permalink | Comments (0)