Tuesday, May 31, 2022

How Law Professors Can Help Their Students Overcome Pandemic Learning Damage

A few days ago, the New York Times published an article about college students "not being OK" two years into the pandemic (here).  Brian Leiter did a follow-up on his blog, asking for comments from higher ed professors.  (here)  Most of the commenters agreed that students were having significant problems with wellness and motivation.  Many noted that the quality of work had dropped precipitously.  Here are a few excerpts:

"It's the worst I've ever seen. Among my intro students, roughly a third either failed or had to be convinced to withdraw. They just don't do the work, despite both lenient deadlines and my being practically begging them to turn things in. And the mindlessness has increased exponentially. By 'mindlessness' I have in mind not stupidity, but just a refusal to think in any form."

"I am certain there is an increase in mental and emotional health issues among the students. I strongly suspect that this doesn't explain all of it, though. There seems also to have a been a cultural shift that explains some of this. I've found it increasingly difficult to teach well under these conditions, and anecdotally I know a lot of teachers who agree. I don't really know what to do."

"More and more, students simply neglect to do their work, with no explanation. There is far more absenteeism, and while cheating has always been an issue, students are far more blatant about it than I can ever remember. The administration and counseling department look with increasing disapproval on any sorts of deadlines for work or firm behavioral expectations. You rarely hear anyone suggest that teaching students to meet deadlines and establishing uniform expectations for student behavior might actually help them feel 'okay.'"

"Yes, the students were just as described last year. But, to echo what others above have already said, I have seen trends moving pretty steadily in this direction for about a decade now, little by little."

"Unfortunately, the reaction of many deans and professors to the pandemic has apparently been to make the standards even _more_ lax than they already were when this was going on. I have to wonder how much of that explains the drop to even further lows."

"The other thing I think I've been seeing, and this is in line with Justin's comment above, is that not only is cheating rampant, but it no longer, for many students, has anything like a moral valence. My students cheerfully tell me that they cheat in other classes, and some have even told me that they cheat in my class (seriously!)."

"I have to say that in 2018 I was truly shocked to find what I found where I had been hired as a postdoc. . . .  It was the oddest atmosphere--almost like a sleep-away camp or something. It just didn't at all feel the way a serious university community should. A number of the comments in this thread highlight what made me feel the way I did then, and evidently it has only worsened. "

Law students share these problems, and law professors need to deal with them.  We can't just ignore the situation and hope someone else will handle it.  We must deal with this problem in every class, with every student.

Wellness practice is a large part of the potential solution.  But, there are other things that professors must look at, including teaching metacognition, developing motivation, creating growth mindsets, and producing self-regulated learners.

1.  Metacognition:  Metacognition is thinking about thinking.  It allows students to control their own learning.  It “includes both knowledge of one’s knowledge, processes, cognitive and affective states, and the ability to consciously and deliberately monitor and regulate one’s knowledge, process, cognitive and affective states.”  (citations omitted; see below)

Notably, researchers believe that metacognitive skills are mainly learned, rather than innate; metacognition is programable general architecture. Most students do not acquire metacognitive skills on their own. Rather, they require a “coach” to develop expertise.

2.  Motivation:  Motivation is “the personal investment that an individual has in reaching a desired state or outcome.” Motivation drives the effort needed for learning. “Motivation is the fuel to learn.” Moreover, working memory allocation is directed by motivation. In short, motivation is an “academic enabler.”

There are two types of motivators for learning: cognitive motivators and emotional motivators. Cognitive motivators include “needs for the self, for recognition, achievement, esteem, respect, and confidence.” Because motivation is goal-directed, setting goals is the most important cognitive motivator.

What teachers need to instill in students to create motivation is learning goals (“goals directed at learning new knowledge or mastering a task or problem”; also referred to as “mastery goals”). With learning goals, students concentrate on competence and the inherent facets of a task, learning for learning’s sake, interest, challenge, and curiosity. Students with learning goals “are more likely to adopt study strategies that result in deeper understanding, to seek help when needed, to persist when faced with difficulty, and to seek out and feel comfortable with challenging tasks.”

"Three factors affect whether goals are motivating: 1) the subjective value of the goal, 2) the expectation for successful achievement of the goal (“expectancies”), and 3) whether the environment is supportive or unsupportive (“the environmental context”)." Professors can increase student motivation by 1) helping them create the subjective value of the goal, 2) helping them create the expectation for successful achievement of the goal, and 3) creating a positive learning environment.

3.  The Growth Mindset: A major impediment preventing students from succeeding in law school is that they often have the mindset that intelligence is fixed–that humans are born with a level of intelligence that is unchangeable during their lifetimes. If intelligence is unchangeable, why should I work hard? Recent research has shown that the fixed mindset is not correct, but that with hard work and the proper approach a normal student can increase their intelligence (fluid or malleable intelligence). As a leading expert in this field has stated, “[t]he view you adopt for yourself profoundly affects the way you lead your life.” One scholar has defined the growth mindset as being “based on the belief that your basic qualities are things you can cultivate through your efforts.” Law teachers must help their students overcome the fixed mindset.

Students who believe that intelligence is malleable get higher grades than those who don’t, so teachers must convince their students that the right kind of hard work pays off. As one scholar has declared, “[m]indsets are beliefs. They’re powerful beliefs, but they’re just something in your mind, and you can change your mind.” The major way of teaching students that intelligence is fluid is to address their beliefs directly. First, “[j]ust by knowing about the two mindsets you can think about reacting in a new way.” Another technique is to praise their effort rather than their ability. As one author has stated, “[p]raising process rather than ability ends the unspoken message that intelligence is not under the student’s control.” Another way to help students understand that intelligence is malleable is to use as examples famous scientists, athletes, authors, and entertainers who have succeed through hard work. Moreover, the professor needs to convince students that failure is part of learning–that even the greatest scientists failed before they achieved success.

4.  Self-Regulated Learning:  Self-regulated learners “are intrinsically motivated, self-directing, self-monitoring, and self-evaluating.” “Self-regulation is a self-directive process and set of behaviors whereby learners transform their mental abilities into skills and habits through a developmental process that emerges from guided practice and feedback.” Self-regulated learners “recognize when a skill is needed and [they have] the willingness to apply it.” Similarly, self-regulated learners know themselves. They are inquisitive, open to new ideas, and take risks. They do not settle for the first answer, but always consider alternatives. They admit when they are confused, and they try to clear up their confusion before going on. Most importantly, self-regulated learners have learning strategies, and they focus more on the mastery of learning rather than on external factors.

Few students come to law school as self-regulated learners. Professor Lemnson has pointed out that most students consider learning as something that happens to them through lectures and superficial readings. Passive observers do not make effective learners. The human mind is not a sponge.

Self-regulated learning consists of three parts: forethought, performance, and reflection. Each part encompasses detailed subparts.  Self- regulated learning requires 1) strategic knowledge, 2) knowledge about cognitive tasks, and 3) self-knowledge.  Self-testing is a key technique of self-regulated learners. Similarly, having students create concept maps or mind maps enhances self-regulation. Other techniques include think-alouds, reflection (with journaling), metacognitive questions, and evaluation.

Professors should give students self-regulated questions at the end of a course. These questions can include “how could I have prepared for class better?”, “how could I have studied for this class better?”, “how could I have gotten a better grade on the exam?” (This is especially important for first-year law students who should be absorbing new learning techniques.)

The above is as much as I can squeeze into a post.  I go into detail with all these techniques in How to Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students (2018).  The above quotes are from this book.

(Scott Fruehwald)

May 31, 2022 | Permalink | Comments (0)

New Law School Pedagogy Journal

From Emily Grant:

The Institute for Law Teaching and Learning is thrilled to be launching a new scholarly journal.  The Journal of Law Teaching and Learning will publish scholarly articles about pedagogy and will provide authors with rigorous peer review. We hope to publish our first issue in Fall 2023.

If you have a scholarly article that might fit the needs of The Journal of Law Teaching and Learning, please consider submitting it directly to us via email at [email protected] or through the Scholastica platform.


(Scott Fruehwald)

May 31, 2022 | Permalink | Comments (0)

Monday, May 16, 2022

Reminder: Open Source Book on Professional Identity Training for Law Faculty and Administrators

Reminder: Important new book on professional identity training: Neil Hamilton (St Thomas) & Louis Bilionis (Cincinnati), Law Student Professional Development and Formation: Bridging Law School, Student, and Employer Goals (Cambridge University Press 2022).  You can download this book for free here.

(Scott Fruehwald)

May 16, 2022 | Permalink | Comments (0)

Saturday, May 14, 2022

Learning How to Distinguish Cases: A Basic Skill for Lawyers and Law Students

One of the legal education reforms that I have advocated is explicitly teaching miniskills, such as rule-based reasoning, analogical reasoning, and case synthesis.  I think that students need to master these skills before moving on to more advanced types of legal reasoning.  Studies have shown that second- and third-year law students have problems with these and other miniskills.  (E.g., here)

One miniskill that is rarely taught in depth in law school is distinguishing cases.  Yet, this skill is basic for competent lawyers.

A lawyer can distinguish a case based on the facts or based on the reasoning/policy (or preferably both). 

In distinguishing cases, the attorney demonstrates that the facts of case A (the precedent case) are not substantially similar to the facts of case B (your case) so that the rule from case A does not apply to case B.   In other words, distinguishing cases is the opposite of reasoning by analogy. With reasoning by analogy, the advocate shows that the facts of case A (the precedent case) are substantially similar to the facts of case B (your case) so that the rule of case A applies to case B.

Distinguishing cases involves distinctions of degree so the lawyer must make the dissimilarities convincing.  The opposing attorney will try to argue that the cases are similar enough for the rules to apply to both.

Judge Aldisert has developed criteria to test analogies:

* The acceptability of the analogy varies proportionally with the number of correlates that have been identified.

* The acceptability of the analogy depends on the number of positive resembles (similarities) and negative resemblances (dissimilarities).

* The acceptability of the analogy is influenced by the relevance of the purported analogies. An argument based on a single relevant analogy with a single instance will be more cogent than one which points out a dozen irrelevant resemblances.  (Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 280 (Nat. Instit. Trial Advoc. 1996))

This test can be modified to apply to distinguishing cases: in making an attempt to distinguish a case convincing, find as many relevant distinguishing features as possible and compare the relevant differences with the relevant similarities.

An advocate can also distinguish cases based on the reasoning or policy of the cases. Case A (the precedent case) is distinguishable from case B because the policy (or the reasoning) behind case A is different than the policy (or the reasoning) of case B so the rule from case A does not apply to case B.

For more on distinguishing cases, including examples and exercises, see E. Scott Fruehwald, Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals 186-96 (2020)

(Scott Fruehwald)


May 14, 2022 | Permalink | Comments (0)

Monday, May 9, 2022

The Economic Value of Law Clinic Legal Assistance by Robert Kuehn

"Each year law school clinics provide free legal assistance to tens of thousands of clients, most of whom would otherwise go unrepresented. The work of clinic students and faculty allows clients to advance or defend their rights or obtain assistance or funds to which they are entitled, assistance that is in many ways invaluable to clients and their communities. While the benefits of clinic work can be difficult to monetize, it is possible to estimate the dollar value of the millions of hours of free legal assistance law clinics provide each year to individuals, governmental agencies, and non-profit organizations. As explained below, law clinic students alone provide tens of millions of dollars in pro bono legal services each year."

Conclusion: " Public service is a core value of legal education[12] and pro bono legal activities a professional responsibility of law professors.[13] Although schools often bemoan their costs, law clinics play a primary role in fulfilling these ideals by providing local communities with millions of hours of much-needed legal assistance and hundreds of millions of dollars in free services each year."

Read the rest here.

(Scott Fruehwald)

May 9, 2022 | Permalink | Comments (0)

Saturday, May 7, 2022

What We Do: The Life and Work of The Legal Writing Professor by David I. C. Thomson

When Deb Green, James Garland,  and I started teaching legal writing at the University of Alabama, Dean Randall suggested we present a faculty forum about what legal writing professors do.  He wanted us to demonstrate that legal writing professors did more than just teach grammar and that we provided significant value to Alabama law students.  The forum was a great success, and most of our doctrinal colleagues accepted us as essential members of the faculty.

Professor David Thomson has just written an article that does the same thing for all law schools and professors:

What We Do: The Life and Work of The Legal Writing Professor.

This is a comprehensive article, which tells what, how, and, especially, why legal writing professors do (it).  Every law school administrator and faculty should read this article.  Also, it should be emailed to every new legal writing professor with their acceptance letter.

Here is the abstract:

The life of the legal writing professor in today’s law schools is a challenging yet rewarding one. Out of necessity, over the last thirty years the pedagogy of legal writing has expanded to include much more than just writing skills—it has become every law student’s introduction to a broad set of basic lawyering skills and is more appropriately styled the Lawyering Process (LP). The increasing gravity and responsibility of the Lawyering Process course has led to expansion of credits given to the course and gradually to greater status and equity to the faculty who teach it, although most of us still lag the benefits and privileges of our tenured colleagues. Because of the dramatic evolution of the course and in the professionalism of the faculty who teach it, many traditional tenure-track faculty members do not really know or understand what we do now. This Article seeks to fill that gap — to bring our colleagues up to date on what we teach and how. It also seeks to help our colleagues understand what sort of support we want and need to be even better and more effective at teaching this critical course in law school. Finally, it is hoped that this Article will be helpful to faculty new to the task of teaching the Lawyering Process course so they will have a more complete understanding of the joys and challenges that await.

Update: Upon rereading Professor Thomson's article, I think it is one of the most important articles ever written on legal writing.

(Scott Fruehwald)

May 7, 2022 | Permalink | Comments (0)

Tuesday, May 3, 2022

"Teaching" Professional Identity: A New Book for Administrators and Professors

Professors Neil W. Hamilton and Louis D. Bilionis, two leaders of the professional identity development movement,  have just published a book to help administrators and law professors satisfy the new ABA requirement that professional identity training be included in the law school curriculum:

Law Student Professional Development and Formation: Bridging Law School, Student, and Employer Goals

You can download the book for free here.

    The authors write, "This book is written for law school faculty, staff, and administrators who would like to see their school more effectively help each student to understand, accept, and internalize the following:

1. Ownership of continuous professional development toward excellence at the major competencies that clients, employers, and the legal system need;

2. a deep responsibility and service orientation to others, especially the client;

3. a client-centered problem-solving approach and good judgment that ground each student’s responsibility and service to the client; and

4. well-being practices.

Chapters 2 and 3 focus on strategic planning to realize the foregoing benefits at your school. "Chapter 2 explains and stresses the importance of purposefulness in the law school’s efforts to help students to realize the four PD&F goals. The reader will find a framework for bringing that purposefulness to work in the law school. Chapter 3 explores how competency-based education can serve as a possible framework for purposeful support of students toward the four goals."

"Chapters 4 and 5 focus on practical implementation steps to realize the benefits we just outlined at your law school. Chapter 4 brings forward ten principles from the literature on higher education that should inform the development of any law school curriculum to foster each student’s progressive growth toward later stages of development on the four PD&F goals. Chapter 5 stays with the practical, turning attention to how interested faculty, staff, and administrators can lead their school toward more purposeful support of students and their PD&F goals."

The authors emphasize that professional identity development requires a new approach to learning: "Law professors contemplating what their school can do to better help students in their formation of professional identity likely will presuppose that the answers involve some form of transmission of knowledge by the faculty to students. After all, isn’t that what teaching is, and isn’t teaching what a law school does?

Framing the law school’s capacities that way defines legal education and the law school’s appropriate functions too narrowly. Teaching as it is customarily envisioned – the transmission of expert knowledge by a professor who imparts doctrinal wisdom and hones student skills in analysis and synthesis – figures enormously. But the education of the American lawyer involves more. Other kinds of experiences are formative for the developing lawyer and thus, in a real and meaningful sense, an integral part of the legal education. The challenge for law schools is twofold: to see legal education in those broader terms and to recognize that society expects law schools to take responsibility for legal education in those broader terms."

They continue: "Accepting this responsibility means embracing a leadership challenge. The question is not so much what additional expert knowledge the law faculty can convey, but rather what the school as a whole can do to maximize the formative potential of the pre-professional-employment period – what diverse talents, techniques, and resources it can muster and deploy."  (emphasis added)

This requires three steps.  "First, it is necessary to be frank about the period for which the law school bears responsibility. . . . The period really begins not with matriculation but with increasingly intensive recruitment and admissions processes that initiate the student’s professional socialization. The period ends not at graduation but with the passing of the bar examination and the securing of a job – activities that law schools support with expanded postgraduation services. And those summers are not 'breaks' that punctuate the period but months designated for realworld experiences that schools promote and facilitate, and even create and subsidize, because they are central to development."

"The second step is to draw into view the diverse formative experiences that occur (or could occur) in that pre-professional-employment period, together with the varied times, spaces, and talents associated with those experiences. These represent the assets that can be committed to supporting students in the formation of their professional identity. By inventorying the experiences carefully, and associating each experience with one or more of the competencies that the school sees as integral to its working conception of professional identity, the school can see with clarity the student’s development opportunities and the functions they serve."

"A richer picture of the pre-professional-employment period allows the law school to move to the third step – the formulation of purposeful strategies to fortify each formation experience and to unite them all in a coherent, staged, sequenced, and supported whole that maximizes the benefits for students."

This stage has two dimensions.  "On a more general level, relationships and collaborations need to be forged among the many people and organizations that afford students formation experiences. Lines of communication between these parties need to be opened. Ways of coordinating, enhancing, reinforcing, and leveraging their varied efforts need to be imagined and implemented. These things will not occur unless the law school takes the lead in spearheading them. On the finer level of specific strategies and actions, appraisals of the value and potential of each formation experience need to be conducted. What pedagogies can be introduced around each experience – before, during, and after it – to maximize its benefit? Who among the many, from the school’s faculty and staff to stakeholders and participants outside the school, are best situated to help the student maximize that experience, and in what way may they help? What formative assessment opportunities are presented by the experience? What developmental milestones, or assessments that might later be bundled into a summative assessment, might be involved?"

The authors further develop how professional identity training should occur.  "What Dr. Robert Sternszus has said for medical education holds for law: '[T]he role of professional education should be to guide and support learners in the process of identity formation, rather than ensuring that learners understand medical [or legal] professionalism and demonstrate professional behaviors.'  Students need experiences as active participants in situations that signal the profession’s shared values, beliefs, and behaviors. They need encouragement to make the process of their identity formation their own and to reflect on the process as it unfolds. They need assistance in comprehending what they are going through."

"This calls for teachers who can curate and coach. By curating, we mean staging the experiences and environments that will promote professional identity development, connecting them conceptually to one another in an intelligently sequenced fashion, and guiding students through them with a framework that helps the students understand their own development through the process."

"'Coaching is the thread that runs through the entire apprenticeship experience and involves helping individuals while they attempt to learn or perform a task. It includes directing learner attention, providing ongoing suggestions and feedback, structuring tasks and activities, and providing additional challenges or problems. Coaches explain activities in terms of the learners’ understanding and background knowledge, and they provide additional directions about how, when, and why to proceed; they also identify errors, misconceptions, or faulty reasoning in learners’ thinking and help to correct them. In situated learning environments, advice and guidance help students ... to maximize use of their own cognitive resources and knowledge, an important component in becoming a professional.'"

The authors stress that professional identity development should not only be across-the-curriculum, but throughout the entire law school.  For example, "Law school colleagues working in the career services area have much to gain by implementing professional identity formation initiatives in their work with students."

The above only gives a sample of the detail about professional identity training that is in Hamilton's and Bilionis's book.  As someone who has been studying professional identity training for the last few years, I can attest that the advice they give in their book will help administrators and faculty create a new approach to legal education.

(Scott Fruehwald)

Note: The authors recommend two of my books to help students develop their professional identities. (p. 126) “Models and guides are available to make initiative practicable, easy to execute, efficient, compatible with one's practices and values, and likely to succeed - the criteria that make it easier for people to change and innovate.8

Fn. 8: See Bilionis, supra note 1, at 612-16. For example, Scott Fruehwald has a number of useful professional identity exercises in his book, How to Grow a Lawyer 166-95 [(2018). Fruehwald also has many useful reflection questions on professional identity and self-regulated learning in his book, Developing Your Professional Identity: Creating Your Inner Lawyer 1-39 (2015)."

I should point out that the "How to Grow" book is intended for law professors and administrators, while "Developing Your Professional Identity" is written for law students.  I believe that the best way to teach professional identity is through reflection questions.  Both books include lots of reflection questions.



May 3, 2022 | Permalink | Comments (0)