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Law schools are incorporating skills classes into their curriculums, and law teachers are integrating new techniques into their teaching. Subjects that were never taught before are now appearing in law school curriculums. In addition, some classes are smaller than before. Now for the last step–turning law professors into expert teachers. A group of education scholars has stated the following: Clearly, teaching is a skill, and like any skill, it must be practiced. Just as athletes wanting to improve their skills must identify personal strengths and weaknesses, set goals, and engage in focused practice to meet these goals, teachers must also examine their practices, set growth goals, and use focused practice and feedback to achieve these goals. These reflective processes are essential to the development of expertise in teaching.1 The above is especially true for law professors because law professors are generally not taught to how to be teachers;2 they lack pedagological-content knowledge (how to teach a particular course).3 Law professors must learn how to teach on their own. Law professors generally teach using the Socratic method, often combined with lecture. This consists of teaching students by asking them questions. In a typical law class, the professor will examine several appellate cases using this method, sometimes adding hypotheticals after each case. Many legal scholars have criticized the use of the Socratic/case method as an ineffective teaching method.4 Among the deficiencies in this method are 1) it does not teach students how to apply the law, 2) it focuses attention on one student at a time, while other students may not pay attention, 3) students become bored with the constant use of the Socratic method, 4) focusing just on appellate cases gives students an incomplete view of the legal context, and 5) many students 1
Electronic copy available at: http://ssrn.com/abstract=2115768
are intimidated by the Socratic method to the point that they have emotional problems. Simply stated, the Socratic method is not an effective way to learn most legal skills.5 Other scholars have criticized traditional methods of law school teaching as not preparing students for practice.6 Professor Schwartz has declared, “law school instruction as a whole,
remains locked in an instructional methodology of dubious merit.”7 More specifically, Best Practices, a recent critique of legal education, has argued, “Law schools cannot help students cultivate practical wisdom or judgment unless they give students opportunities to engage in legal problem-solving activities.”8 Finally, Professor Schultz has stated: “The limited focus of most law school classes on derivation of rules and policy considerations from appellate decisions cannot begin to approximate the thinking process of the competent attorney. Teaching students to think like attorneys loses much of its meaning if that thinking is not placed in the context of what lawyers actually do.”9 There is a growing number of law professors who think we can do better.10 For example, Professor Andrews has declared, “[s]tudents need to master the law, not merely understand the law.”11 Similarly, Professor Burgess has asserted, “By incorporating efficient and innovative teaching methods in law school, professors can teach more doctrine and more skills in the same amount of time.”12 Likewise, Professors Feinberg and Feldman have argued, “[w]hat is primarily missing in legal school is an educational environment that provides students with resources and the situations with which they can best learn. When given appropriate instruction, nearly all law students can achieve mastery–not merely competence–of the skills of the novice lawyer.”13 Finally, Professor Wegner has asked, “Have law schools limited their expectations of themselves and their students by focusing so heavily on certain educational objectives (comprehension, 2
Electronic copy available at: http://ssrn.com/abstract=2115768
analysis, and simple application), and giving others (such as more sophisticated forms of application, synthesis, and evaluation) short shrift?”14 In other words, it is not that our students are too lazy or lack the intelligence to master the law, it is that we are not using the proper teaching methods. This article applies cognitive psychology and learning theory to explain how to become an expert teacher.15 As Best Practices has asserted, “Members of a law school faculty should base their teaching decisions on research about effective teaching, or at least hypotheses grounded in research.”16 More specifically, “It is clear that a successful pedagogy that can serve as a basis for the enhancement of thinking will have to incorporate ideas about the way in which learners organize knowledge and internally represent it and the way these representations change and resist change when new information is encountered. Despite all of the gains that cognitive psychologists have made in understanding what happens when people learn, most teachers do not apply their knowledge of cognitive psychology.”17 This article begins by discussing the neurobiology of learning, then it uses this understanding to move onto educational theory and finally to the details on how to be an expert law teacher. Part II of this article addresses how humans learn (the neurobiology of learning) in order to provide the foundation for the rest of the article. Parts III and IV apply this learning theory to specific methods of improving teaching and learning. Part III examines the idea of “engaged teachers” and “engaged learners.” Part IV discusses how to become a “self-regulated” and “reflective” learner/teacher. Finally, Part V presents the attitudes and habits of expert law teachers, while Part VI covers what expert law teachers teach. Part II 3
The Neurobiology of Learning Thinking, learning, memory, and perception are physical processes in the brain.18 One can succinctly describe how these processes work: “Brain cells [neurons] fire in patterns.”19 This process is both electrical and neurochemical. Neurons work by passing on electrical charges to neurons that are connected to them by synapses (connections between neurons).20 The firing neuron sends a chemical signal call a neurotransmitter across the synaptic gap to other neurons.21 These signals either excite the neurons by increasing their electrical activity (causing them to fire) or inhibit their activity.22 Neurons interact to create complex representations, concepts, and processes.23 The brain is the result of both nature and nurture: “The macro-architecture of the brain is genetic, but the micro-architecture is environmental.”24 The brain is prewired “to receive input from the world in certain ways” and “to produce a defined set of motor movements.”25 (In addition, some neuroscientists believe that the brain is prewired with deep, universal mental mechanisms that provide a framework for specific behaviors, such as the primacy of family ties, the universality of dominance and violence, and human nature.)26 However, experience affects the brain on the micro-level by neural firing.27 In other words, genetics provides the framework; experience the details. Learning is part of the details. Cognitive psychologists have identified the basis of human learning: “learning is a relatively permanent change in a neuron.”28 Because neurons are changed by activity, “learning occurs when the firing ability of a neuron is changed.”29 Similarly, the synapses change with each firing, and linked neurons firing together strengthen the synapses.30 Importantly for learning, “Neurons grow or die and neural connections are created or eliminated based on which 4
ones are active.”31 When humans learn something, it becomes Knowledge stored in the brain–in long-term memory consisting of the firing potentials and interconnections of neurons.32 Professor Shell and his colleagues define Knowledge differently than it normally is in education scholarship: “Knowledge is everything we know. It not only means facts and concepts, but also problem solving skills, motor behaviors, and thinking processes.”33 They continue: “Knowledge . . . is entirely the result of the micro-architecture of the brain. . . . It is due to neural patterns in that region having been strengthened and weakened in ways that correspond to learning algebra, calculus, etc. The strengthening and weakening of neurons is learning. Thus, the microarchitecture of the brain and as a result, virtually all of our [K]nowledge is the result of learning.”34 Working memory is both the key to learning and the “bottle neck of learning.”35 Working memory has two functions–temporary storage and processing of information.36 Storage is the “process of turning a specific [sensory] input into a permanent trace” in the long-term memory.37 The senses receive a great deal of input, which is aggregated into sensory output and sent to the working memory.38 However, the working memory cannot handle all this sensory input, so one of its roles is “attention”–to process some of this input and ignore other parts.39 Attended memory activates neurons in a temporary memory area, which “creates a neural representation of the sensory input in working memory.”40 “Long-term potentiation” preserves this input for a few hours.41 “If the neural pattern does not decay, it activates a neural pattern in the cortical region that produces a permanent memory trace of the original input.”42 Working memory has only about four slots.43 However, these slots can hold from single 5
and this mainly depends on concentration. .53 This function also occurs when more than two inputs are involved in the pattern.49 Humans can focus attention. human brains store the appearance. .50 When the trace is the same as a neural pattern already in long-term memory.62 Working memory is substantially connected to and receives 6 .51 If this happens frequently.”60 Motivation affects working memory.48 Novelty and salience affect attention. it fires the neuron of the other one because the neurons are chained together (matching).59 In sum.letter to complex chunks (schemas).47 Attention directs sensory input. When one of inputs is retrieved. “when one part of a chain is matched. Thus.”45 From a neurobiological viewpoint.61 Just because working memory slots are available does not mean they are being used. chunks are neurons connected by synapses. and working memory recognizes it more quickly (called retrieval). the two inputs will form a neural pattern.54 The fact that this can continue infinitely “is how our knowledge of things and concepts are built.58 Consequently. taste. and it prevents a temporary memory from being erased.44 A chunk is “a connected grouping of [K]nowledge.”55 In other words. when a person sees an apple. she can also link to its smell and taste in a single slot. and it is strengthened in the long-term memory. the entire chain is activated because patterns are linked by chaining of neurons”56 (Pattern matching).”57 For example.52 When two sensory inputs are in working memory then stored in long-term memory. the pattern is fired. “the amount of knowledge potentially available for processing in working memory can become quite large.46 Working memory is devoted to a task when slots are available for input and attention or processing is directed to the slot. with the help of long-term memory and chunking. “learning is about connections. the pattern is further strengthened. and odor of an apple together.
2.”69 The remainder of this article will discuss learning theory that is consistent with the ULM. Dr.68 In sum. 4.’ They are more alert. These motivational influences determine the effort level that is put into learning. Working memory’s capacity for allocation is affected by prior Knowledge.66 They then set out five rules of learning: 1. Learning requires repetition.63 Emotion affects attention and allocation of working memory. “[t]hose who avoid the sin of intellectual sloth could be called “engaged. 2.input from the emotions. more intellectually 7 . rewards. Daniel Kahneman has developed the idea of the ‘engaged’ thinker. Some learning is effortless. “Teaching and instruction work when they create conditions that ultimately trigger learning neural mechanisms in students. Shell and his co-authors have developed the three basic principles of learning (the Unified Learning Model or ULM): 1. Learning is learning. “Motivation in working memory is derived from emotional inputs as well as from [K]nowledge that has been stored about previous performance. then use this learning theory to present specific ways of how to become an expert teacher. Learning is about connections.”65 Based on the above. Part III How to Become an Engaged Teacher and an Engaged Learner. 3. and ourself. Working memory allocation is directed by motivation. 5.64 More specifically. some requires effort. goals.67 3. New learning requires attention.70 He writes. Learning is a product of working memory allocation. The first step in becoming an expert teacher is to become an engaged teacher and an engaged learner because one cannot not satisfy the ULM without being engaged.
74 In such a situation.”76 Accordingly.” which comes from System 1 (which is subject to biases).73 Thus. intuitive thought (automatic pilot). System 1 is unconscious. with little or no effort and no sense of voluntary control. The reason that many thinkers are lazy is that cognitive thought in System 2 requires a great deal of mental effort (ULM rule 4). to be an engaged teacher. “[i]t is important to separate the disposition or willingness to think critically from the ability to think critically.”77 8 . System 2 allocates attention to the effortful mental activities that demand it. This is the distinction between what people can do and what they actually do in real-world contexts. rather than the correct answer that requires more work. Some people may have excellent criticalthinking skills and may recognize when the skills are needed.active.75 Similarly. He believes that evolution produced two interactive modes of thinking: System 1 operates automatically and quickly. a professor must have the discipline to overcome the lazy thinking of System 2 and the biases of System 1. but they also may choose not to engage in the effortful process of using them. rational thinking (effortful system). maintaining a coherent train of thought requires discipline.”71 In contrast. “[e]ven in the absence of time pressure. Professor Halpern has remarked. The operations of System 2 are often associated with the subjective experience of agency. and concentration. lazy thinkers are characterized by “a reluctance to invest more effort than is strictly necessary. lazy thinkers often adopt “a superficially plausible answer that comes readily to mind. less willing to be satisfied with superficially attractive answers. while slower System 2 is conscious. choice. and people who are unmotivated do not expend that mental effort.”72 Kahneman’s idea of engaged and lazy thinkers is based on his concept of how the human mind works. including complex computations. As Kahneman has declared. more skeptical about their intuitions.
the learner works at a skill to reach automaticity.”80 Kahneman estimates that it takes 10. or firefighting is intricate and slow because expertise in a domain is not a single skill but rather a large collection of miniskills.000 hours of practice to become a chess master.83 Law professors may be experts in a field. such as Contracts. Most importantly. He pays attention to each student in the class. “Developing problem-solving expertise requires repetitions of ‘training’ as against the hard world of consequences.”82 The amount of time that it takes to become an expert is one of the reason that students often find their instruction to be poor. He thinks more about what he wants to accomplish in class. he cares that the students learn.78 Expertise requires a powerful memory (Knowledge under the ULM).The importance of being an engaged teacher is obvious. what seems important and what does not. professional basketball. after which the skill can be executed with little effort.84 With the usual type of practice. An engaged teacher must also be an engaged learner.81 Similarly. “[t]he acquisition of expertise in complex tasks such as high-level chess. “individuals engaged in deliberate practice 9 . I will give more details of being an engaged teacher throughout this article.79 Kahneman has pointed out. and some inductive efforts at understanding what works and what does not.85 On the other hand. Being an engaged thinker or teacher requires deliberate practice. An engaged teacher gives more to his students because he is more prepared. Education researchers have identified two types of practice: practice to automaticity and deliberate practice. He reflects on each class and whether that class was effective. of repeated success and failure. Best Practices has noted. One reason that a professor must be an engaged learner is that it takes many years of intense training to develop expertise. but many of them are not experts at teaching Contracts to novices (pedagological-content knowledge).
deliberate practice isn’t fun.”92 Geoff Colvin has identified the elements of deliberate practice. First. experts in the field. such practice “causes [experts’] brains to develop better systems for storing. engaged learners use deliberate practice to improve their engagement. will students become better learners. they challenge themselves. she must become a self-regulated and reflective learner/teacher.”90 Deliberate practice helps learners develop schemas (ways to store Knowledge in chunks). stronger performers. the practice must be highly demanding mentally. and accessing information in their area of expertise.” and they “strive to continuously achieve mastery of increasingly higher levels of performance through the acquisition of more complex and refined cognitive mechanisms. feedback.93 A teacher is usually required for this because the learner lacks knowledge on how to formulate the design.”89 In other words.94 Second. and incorporating that feedback into subsequent efforts. Part IV How to Become a Self-Regulated Reflective Learner/Teacher. that process of doing.tend to resist automaticity. and. it must be designed to specifically improve performance.”87 Deliberate practice is not easy. ultimately. because law professors are not generally taught to be teachers.97 Finally. and it often results in failure. . “only through deliberate practice.95 Third. . the law professor must teach herself through deliberate practice. feedback must be continuously available.98 In sum. As two professors have argued.”86 Deliberate learners focus on the “not yet attained and challenging tasks beyond their current level of performance.88 “Individuals are motivated to practice because practice improves performance. erring.91 From a neurobiological viewpoint. 10 .96 Fourth. organizing. deliberate practice requires repetition.
and they focus more on the mastery of teaching than on salary.107 I have modified Schwartz’s categorization for self-regulated teaching. self-directing. They are inquisitive.106 Using Bloom’s taxonomy. self-monitoring.”105 Bloom’s taxonomy was intended to develop “higher order thinking skills. and self-evaluating. self-regulated teachers know themselves. They do not settle for the first answer. 4) analysis.103 Most importantly. you should identify and classify the task. the teacher should perceive and react to the task. Professor Schwartz divided self-regulated learning into three parts: forethought. Becoming a self-regulated thinker. 3) application. by perceiving its skill domain and the subject of the task110 For law 11 . performance.” instead of just recall of factual material.”101 Self-regulated teachers “recognize when a skill is needed and [they have] the willingness to apply it. goal setting.”100 “Selfregulation 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. 5) synthesis. and take risks. and they try to clear up their confusion before going on.”102 Similarly. 6) evaluation. self-efficacy. open to new ideas. or teacher begins with Bloom’s taxonomy (the six levels of cognition): “1) recall.109 First.A. but always consider alternatives. and reflection.”108 In the task stage. self-regulated teachers/learners have learning strategies. learner. The forethought stage involves the thought processes you undertake before you start teaching–“task perception. and strategic planning. then subdivided each of the parts. An expert teacher is a self-regulated teacher. self-motivation. 2) understanding. How To Become a Self-Regulated Teacher. They admit when they are confused.99 Self-regulated teachers/thinkers/learners “are intrinsically motivated.104 Becoming an expert teacher is a process.
In addition. the task may concern teaching personal jurisdiction in Civil Procedure. the skill domain will be a legal subject and the subject of the task is teaching a part of that particular subject.114 If a teacher is not confident in her efficiency. Setting goals is fundamental to motivation..116 Developing metacognitive strategies (ways to monitor one’s thinking. establishing relevance to class goals. (3) verbal persuasion regarding the difficulty of the task. As is true under the ULM. . the 12 . Having a positive attitude and confidence in one’s self makes one a better teacher. For example.”112 Self-efficacy involves four factors: “(1) the [teacher’s] current skill level.111 In the second forethought substage.115 Other ways to help self-motivation include replacing negative self-talk (usually from prior experiences) with “positive self-instruction and a sense of self as an effective [teacher]” and developing new habits. A teacher who wants to teach is more motivated than a teacher who teaches something just to earn a salary.”113 A teacher should know their skill and experience levels. and (4) the [teacher’s] current psychological state. see below B) also helps motivation because using them builds confidence. (2) the extent to which she has witnessed modeling from peers and teachers. she should do additional preparation for the class and learn more about effective teaching. by determining how much the teaching interests the teacher. self-motivation is a key to being a self-regulated teacher. the reader then sets goals (purposes) for the teaching (the desired outcome).teaching. in the task stage. . the teacher should react to the task.119 Why are you teaching this class and what do you want to accomplish? In coming up with a purpose.118 It is often good to have a real world purpose when teaching. and relating the task to prior knowledge. the teacher “assesses her efficacy for accomplishing the task.117 Based on the earlier stages.
how does teaching personal jurisdiction relate to your goals in the class? How does this task relate to other subjects the students have learned? How does this task relate to what lawyers do? The final step in the forethought stage is developing a teaching strategy based on the earlier substages.123 Colvin has noted. This stage encompasses three processes: (1) “attention-focusing.” (2) “the activity itself. For example. By the end of the class. The performance stage is the actual teaching. It might help to write down your teaching strategy for a class to help you form better strategies.”122 Strategies are “set[s] of mental processes” used by a thinker to achieve a purpose.”125 Attention-focusing helps make the teaching productive.”124 In other words. experts “bring knowledge to bear more effectively on problems within their domains of expertise than do novices.126 Having a 13 . the teacher must consider the context of the teaching task. “experts know which strategies and behaviors are generally effective within their domains of expertise. “the best performers make the most specific technique-oriented plans.”121 Similarly. I want the students to be able to synthesize the law of personal jurisdiction and apply it to real world problems.teacher should be as specific as possible. and they select the best or most effective strategy or behavior for a particular situation. Self-regulated teachers are able to focus their attention.120 An expert not only has more domain knowledge than a novice.” Similarly. “The purpose of this class is to teach personal jurisdiction through three cases and supplementary material. strategies are ways to achieve your purpose. You should think about the steps you will take in teaching a case and the tools you will use.” and (3) “the self-monitoring the [teacher] performs as she implements her strategies and starts to learn.
I will have more on this substage throughout this paper. but on how the students are reacting.purpose or goal when teaching helps attention-focusing. One group of scholars has defined reflection as “an active thought process aimed at understanding and subsequent improvement. The best teachers focus not only on what they are doing.128 Because reflection is so important.127 The reflective stage is very important in helping a teacher improve their teaching. In this stage. the teacher critically reflects on what she has taught and considers how effective the class was. The activity substage is the actual teaching.”129 Furthermore. An important part of being a expert law teacher is being a reflective learner/teacher. B. which is part of 14 . Did you accomplish your goals in the class? Did the students fully understand the concepts? Did it take longer to teach the concepts than it should have? If so. I will deal with it in more detail in the next subsection. “reflection facilitates practioners to draw from their previous practice experience and to apply that which is relevant to new and unfamiliar practice situations. why? Did you give the students enough context (background) before you discussed cases? What did you think the students got from the class? Did you relate the class to the students’ prior knowledge? How did you feel about the class? Did you learn something about your teaching? Self-regulated teachers feel better about themselves because they learned something and accomplished their goals. as does being enthusiastic about teaching. How to Become a Reflective Learner/Teacher.”130 Being a reflective learner/teacher starts at the metacognitive level. The final stage in teaching is the reflective stage.
One way to develop this inner critic is to imagine how someone else would critique your work. when reading a case.”134 In sum.136 For example.”131 It allows “learners to understand and monitor their cognitive processes. Metacognition is the ability to use prior knowledge to plan a strategy for approaching a learning task. be sure you know why you have 15 .”135 Professor Christensen has suggested that readers talk back to the text–question the text. readers attempt to repair their problems through rereading the text. and an engaged thinker develops her inner voice. summarizing.System 2. take necessary steps to problem solve. and modify one’s approach as needed. the reader should question a case’s reasoning and outcome and think about alternative reasoning and outcomes (interrogate/debate the text). If you mark something in the text. noting when comprehension is proceeding smoothly and when difficulties occur.”132 “Metacognition involves the understanding of how a task is performed.”133 Stated differently. It includes knowing when and where to use particular strategies for learning and problem solving as well as how and why to use specific strategies. control. Metacognition involves “knowledge about one’s own knowledge and knowledge about one’s own performance. reflect on and evaluate results. and manipulate one’s cognitive processes. metacognition is one’s inner voice or inner critic. ““Metacognition refers to awareness of one’s own knowledge— what one does and doesn’t know—and one’s ability to understand. including drawing inferences from the text. making inferences or consulting outside help. What would my dean say about my teaching? What would my colleagues say about my teaching? What would my students say about my teaching? Professor Dewitz has described metacognition in connection with reading: “Good readers constantly monitor their reading. When comprehension breaks down.
or does the teacher need to reinforce an old topic? For example. He is capable of going in a different direction if the class needs to.138 As Professor Schön has noted concerning reflection-in-action. I heard of an example of how several 16 .”139 A reflective law teacher monitors his teaching both while he is teaching and after class. I liked to use Ronald Dworkin’s idea of the “chain novel”140 to teach how the common law developed.highlighted that passage. He tries a different teaching technique if the class is having problems. He is constantly aware of what is going on in class. when I started teaching. Metacognition consists of three parts: “The metacognitive component is comprised of declarative [K]nowledge ([K]nowledge about oneself as a learner—the factors that influence performance). “we can still make a difference to the situation at hand–our thinking serves to reshape what we are doing while we are doing it. The author of the second chapter was constrained by what the author of the first chapter did. and conditional [K]nowledge ([K]nowledge of why and when to use a particular strategy). He is aware if even a single student is having trouble understanding.”137 Metacognition can also be classified as to when it is used. After class. he reflects on the effectiveness of the class. “Reflection-in-action” concerns changing behavior while in the midst of an action. procedural [K]nowledge ([K]nowledge about strategies and other procedures). and the author of the second chapter constrained what later authors did. while “reflection-on-action” comes after the action. I told the students that a chain novel was where different authors wrote different chapters of a book. Did he get through to the students? Were his teaching techniques effective? Does he need to try something else next time? Is the class ready to go on to a new topic. (While I was in college.
you know how changes in the system’s inputs will affect the outputs–that is how the events that just happened will create events that are about to happen.”145 Part V The Attitudes and Habits of Expert Law Teachers.famous authors wrote a pornographic chain novel as a spoof and that the spoof fooled critics.” (Set the stage for 17 . I might have kept teaching this example my entire career with the students being confused. This analogy fell flat with the students.141 As Colvin has pointed out. (This is similar to setting goals under the ULM. reflective learners employ mental models to organize a domain.143 Finally. Effective teachers develop attitudes and habits. they just didn’t seem to grasp the concept of the chain novel. reflective learners use mental models to help distinguish relevant from irrelevant information. Finally. “A mental model not only enables remarkable recall. “Since a mental model is understanding of how your domain functions as a system. First. reflective learners employ mental models to “project what will happen next.) An example of an attitude is “I will be a student-oriented teacher.) I then analogized the chain novel to the development of the common law. it helps top performers understand new information better than average performers.”142 Second. If I had not been a reflective teacher. reflective learners use mental models as a framework on which to hang their knowledge of a domain.” A habit to help develop this attitude is “I will introduce the subject of the class and its goals at the beginning and summarize the class at the end. since they see it not as an isolated bit of data but as part of a large and comprehensible picture. who communicates effectively to her students. but eventually I had to drop the chain novel as a way to teach the evolution of the common law. I tried to teach it differently.”144 Colvin has asserted.
the class and reinforce at the end. then I am only making hollow noises. doing scholarship helps expert teachers grow because it increases their [K]nowledge and helps them make connections. For instance. a law professor could focus on improving a couple of aspects of teaching every semester. and show extraordinary persistence with regard to both. (for example. Professor Hess has written. If I give everything I have to teaching—even sacrificing my own well-being—but do so for my own pride and satisfaction rather than for your deliberate benefit. but do not exhibit a suitable willingness to adapt my activities to your needs and interests. once a week for a half-hour or after each class for ten minutes) teachers can develop the habit of reflection and reap many benefits of reflective practice. My teaching is not for show but to help you equip yourself with meaningful skills and purpose. the attitudes and habits of an effective teacher satisfy the factors of the ULM by focusing working memory allocation.148 An expert teacher improves his teaching over a lifetime by setting growth goals (attitude). one semester a teacher could concentrate on using multimedia materials better in the classroom. skills. while in another semester the teacher could work on dealing with students individually. then I have really done nothing.149 For example. and planning instruction. It is you who should be enlarged in your heart.)146 Here is the attitude of an effective. Educators recommend that self-regulated learners keep a journal. engaging prior knowledge. then my teaching means nothing. Also.147 In sum. student-focused teacher: If I have the capability of speaking in an articulate or even inspiring manner. not me in my claims of teaching expertise. setting goals. If I exercise unusual foresight and insight. and providing motivation. Another way for law teachers to improve their teaching is to keep a journal about their teaching experiences (habit). and the same is true for expert teachers. recording ideas. but do not bend my capabilities to your service. and understanding. Journals can serve as a useful device for creating a comprehensive account of the teacher’s experience. compassion. Journal writing helps teachers to clarify 18 . By writing regularly in a journal.
”152 Stated more simply: domain transfer is applying existing skills to a new situation.155 “Information that is associated with material being learned can function as an effective retrieval cue when the learning is completed. where it can be consciously considered. to evaluate the effectiveness of instructional practices. so information about a thinking skill can move into working memory.150 Similarly. students learn to actively focus on the structure of problems or arguments so the underlying characteristics become salient. it is an analogical skill. reflective teachers observe others teach and invite other teachers to critique their teaching.157 Professor Kowalski writes. how information is stored in long term-memory. Teachers can use journals to analyze problems and to work through the strong emotions that accompany teaching.”154 This hinges upon how the skill was originally learned. training the brain to search for knowledge that can be generalized and applied to solve 19 .their assumptions and theories about teaching and learning. Professor Halpern describes the process of developing domain-transfer skills: “When critical-thinking skills are taught so that they transfer appropriately and spontaneously. and how it was used. instead of the domain-specific surface characteristics.153 “The key to this process “involves the ability of external cues to trigger retrieval processes in long-term memory. and to identify alternative methods to use in the future. Journals can be a vehicle for teachers to integrate their personal and professional selves and to engage in a lifelong. reflective learning process.151 Expert teachers develop the habit of employing their skills across domains (domain transfer).”156 One can effectively organize material in long-term memory by developing “interconnected knowledge structures” (schemas)–relating concepts to other concepts. the better a pervasive schematic can illuminate the differences between patterns in situations. “The more schemas a person has available for comparison.
Teachers can develop their domain-transfer skills in several ways. which he has already “sunk” a lot of money into.162 20 . Similarly. A creative thinker would then be able to transfer sunk-cost concepts to dissimilar situations. any solution to the transfer problem in law school must involve the search for highly inclusive metaschematics that can span multiple contexts. Therefore. think about the ways what you are reading relates to other concepts. think about how that case relates to other relevant cases and critique the reasoning. Under the sunk-cost theory. Finally. as well as stimulate students to access those cognitive maps through learner motivation and metacognitive strategies. “The goal of transferable thinking skills would be achieved if students recognize sunk-costs arguments when they are being made in totally different settings and can apply what has been learned about these arguments in the new settings. such as Congress spending additional money on a defective missile system. or a man marrying a girlfriend because they have already spent so much time together. the previous investment is irrelevant. . principles. Likewise. .160 She writes. concepts.159 Halpern uses sunk costs–“The general idea . that prior investments are not relevant to decisions about future costs”–as an example. Halpern suggests using authentic materials (materials that are similar to real world situations) to aid transfer. skills. which it has already spent millions on. question the text.a new problem. charting or diagraming an organization helps you remember it. attitudes. and dispositions. and think of alternatives. because human beings tie their learning to very specific patterns. First. when reading a case. when you are reading.”161 Her first example of a sunk cost is a friend who is investing $500 to repair a beat-up. old car.”158 The following cognitive areas are transferable: knowledge (substantive law).
Likewise. the student will be.”164 An engaged teacher has an enthusiastic attitude about teaching. students become motivated when they attribute their success to their efforts. The transfer could also be transferring a method of solving a property problem to a contracts problem. and they attend teaching conferences. In neurobiological terms. “Students 21 . Engaged teachers study their areas of expertise. Expert teachers develop the attitude that “I will motivate my students” because. applying principles from statutes and cases to drafting contracts is transfer.167 Expert teachers also make learning “visible. as noted in Part II. If the teacher is bored with the material. however. expert teachers encourage students to meet with them frequently. Setting educational goals is a habit that motivates students. Professor Wegner has asserted. as noted above.166 Teachers facilitate this through frequent feedback.Examples of domain transfer in the law would be transferring concepts of fairness from tort law to contracts law or transferring concepts of federalism to choice of law. too. as well as how to be better teachers. and they evaluate whether they have attained those goals.168 Likewise. engagement with teaching is essential in order to engage students. They seek feedback on their teaching.”165 The first key to motivating students. using a teaching technique from one area in another area is transfer. “a student’s working memory must be allocated to the working task. motivation is one of the keys to effective use of working memory under the ULM. is to be an enthusiastic teacher. “At the end of the day.171 As Best Practices has stated. Engaged teachers critically read their student evaluations.163 Finally. Moreover.169 “Goals motivate their own attainment.”170 Expert teachers set out their goals before the semester and before each class.” and they have deliberate discussions with students about their self-efficacy. They read articles on legal education.
the teacher must convince the students that they can attain the goal. Expert teachers employ the habit of focusing “on specific steps of instructional strategy” and developing fluency with that strategy. such as reading. 22 .175 Expert teachers motivate their students to become engaged and active learners in the classroom.176 They help their students chunk their knowledge and make connections. Teachers should also use multi-modal techniques–“learning material through multiple means. Learning is also enhanced when students understand why certain instructional and assessment methods are employed. students shouldn’t surf the net or daydream during class or allow distractions when studying.177 In other words. It is especially important that new law students understand that the development of professional expertise is the ultimate objective and that it will take time and hard work to achieve it. just sitting in class and paying minimal attention is useless. This includes incorporating experiential techniques.173 Likewise. They realize that learning requires attention and effort so they help their students develop these skills.”174 Of course. the higher the performance. They warn their students against multitasking because multitasking affects the slots available in working memory. listening.179 A variety of teaching approaches helps keep students engaged and focuses their attention. “the higher the goal that is set for the performance.”172 In other words. rather than goals of just getting through the class or a good grade. students learn better when they have learning goals.178 Expert law teachers use a variety of teaching strategies in each class.are more motivated to learn as part of a community of learners if they understand the long term and intermediate objectives of the program of instruction. and making adaptions to that strategy. law students learn doctrine better when they apply that doctrine.
students are more interested in learning when the information they are studying is placed in a context they care about. simulations. Another way is to use problem-solving exercises.writing. playing a role helps focus the student’s working memory (attention). legal education needs more real world experiences. Professor Maranville has explained why context-based teaching is important: “First. practicing.186 Under the ULM. skills courses. judge. Expert teachers have the habit of including context-based teaching in their classrooms because context helps create connections. such as prosecutor.181 Doctrinal teachers can also add drafting skills to their classes. which is also an important skill for law students. A final way is to help students think in a role. in learning information. defense attorney.187 23 .”182 In addition. such as having students draft contract clauses in Contracts or interrogatories at the end of a unit on Products Liability. teachers can discuss causes of action and defenses then diagram them on the board or using Powerpoint. or contract drafter. and it helps the students transform the material. Third. Second. and especially significant for the law school context.”184 Consequently. they increase the likelihood that students will understand the information. and viewing images. which take a case from the initial client interview to the appellate decision. On the micro-level. one way to incorporate context-based learning into doctrinal classes is to use case files. we may organize and store it in memory differently for the purpose of studying for a test than we do in order to retrieve it for legal practice. creating context aids domain-transfer skills. when teachers provide context for their students.185 Clinics. and externships are the large-scale ways of doing this.”180 For example.183 “The seemingly obvious solution to [improving] transfer would be to have students use their knowledge in situations where it will need to be used in the real world.
not a product. Learning should be a journey.Another part of context is what a student already knows. As two professors have declared. Validity means that an assessment tool must accomplish the purpose for which it was intended. reliability. nor reliable. This influence may well be of greater importance than the impact of teaching materials.193 The authors of Best Practices state.195 Formative assessment helps students learn in steps. A single do-or-die final essay exam given under time pressure at the end of the semester fails all three criteria. law students receive feedback only after they take their semester finals. or fairness of their exams. It is neither valid. “committed practice. Reliability means the test or measuring procedure yields the same results on repeated trials. and this assessment often doesn’t match what they were taught in class. law teachers rarely test for the validity.. rather than just summative.192 In addition. Engaging a student’s existing knowledge and employing it creates connections and helps develop reflective thinkers. and it helps them 24 .’”196 Feedback helps students see they are progressing to their goals.194 Law teachers should use formative. while summative assessment is used after instruction (i. not a destination. too often. nor fair.e. followed by constructive feedback followed by more committed practice is ‘a recipe for success. it makes learning a process.”191 However. and fairness. reliability.189 Remember that evaluation is the last element of Bloom’s taxonomy. the end of semester law school exam).188 Expert teachers have the habit of giving their students frequent feedback and assessment. Formative assessment is used during learning with feedback at several points in the course.190 Some legal educators believe that assessment is the most important part of learning: “Assessment methods and requirements probably have a greater influence on how and what students learn than any other single factor. Effective assessment exhibits qualities of validity. assessment.
instead of letter grades. essay exams. demonstrate skills and other forms of “open-ended” assignments allow students to engage in problem-solving and critical thinking that underlies the construction of larger knowledge structures in memory and the creation of new connections.” “basic competence.200 To accomplish the above. teachers should use a variety of assessment devices: problemsolving exercises.”204 Third.205 For example. assessment by practicing attorneys.198 It also helps students focus on learning goals. videotaping. First. solve problems. which helps short term memory. the assessment tool should be valid and reliable–it should allow “the teacher to draw inferences about the matters that the test purports to assess.” and “it should it should accurately rate those who have learned as having learned and those who have not learned as having not learned. Asking students to compare and contrast discrete concepts. the teacher can use categories. appraisal of in-class performance.” “intermediate competence. transfer knowledge to new contexts and situations. multiple choice exams. end of the semester exams. the assessment should inform students of their learning and professional development. set of requirements: “Effective formative feedback to students has four characteristics: specific (based 25 .199 Finally.203 Second.develop the ability to provide feedback for themselves.201 Be innovative: how about a one minute in-class paper?202 There are several other requirements for effective assessment. the teacher should be clear about the assessment’s goal.197 Formative assessment helps students attend to learning. short papers. in-term exams. write essays. longer papers. formative assessment creates connections: Assessment fosters creating these connected patterns by requiring students to connect and combine information and skills they are learning. and team-work exercises and assessment.” and “advanced proficiency. oral exams. and it helps long-term memory by repetition.”206 Professor Hess states a different. but equally important. such as “limited proficiency.
which is vital in practice. it also helps students to develop the ability to deal with new types of problems. corrective (points out weaknesses and strategies for improvement). Professors Schwartz and Riebe have several think-aloud exercises in their Contracts book. The first goal of any expert law teacher should be to help their students become selfregulating and reflective learners.”207 An expert teacher employs think-aloud techniques. positive (identifies student strengths).on explicit criteria).209 A think aloud forces the student to verbalize all the steps in the problemsolving process.213 While learning selfregulation and reflection can be difficult for students. In a typical think-aloud exercise. Think-aloud exercises help students develop problem-solving skills and come up with creative answers. Think aloud may reflect what is being attended to in working memory. the student “talks through” a problem (hypothetical) with his teacher or another person. Furthermore. and this aids recall.210 It also helps students build step-by-step strategies to solve problems. “coaches” (law professors) can help students develop metacognitive skills.211 Part VI What Expert Law Teachers Teach. and timely (before the next assessment).208 A student should ask himself questions during the think-aloud process to help develop his reflective skills.”215 26 .214 “A coach is usually someone whose relationship with the individual allows them to give honest and unbiased assessments of the individual’s performance and whose knowledge in the field allows them to choose or design practice activities that will be most effective at helping the subject move to higher and higher levels of skill.212 Teaching students how to learn is just as important as teaching students substance because lawyers must be life-long learners.
they can help them along the road to mastery. paraphrasing aids storage and retrieval from long-term memory. I would advise law students to spend 1/3rd of their time preparing for class.222 Consequently. A teacher should instill attitudes and habits in his students. eventually learning to assess whether they are at the mastery level. We were told in law school that we should spend three hours of study for each classroom hour.221 Extended repetition is necessary for retrieval. repetition helps create long-term memory.223 Similarly. while one teacher in one class cannot completely develop expert learners. For example. an expert teacher helps students develop metacognitive skills–“thinking about one’s own thinking. one attitude to instill in students in a legal writing class is “to be reader-oriented writers. Humans 27 .”217 Self-monitoring significantly enhances learning outcomes. As noted above. Of course.220 this helps them reinforce long-term memory and create connections. I believe that law students spend too much time preparing for class and not enough time reflecting on what they have learned.To begin.”216 As Professor Andrews has stated. More importantly.218 One way to develop reflective learners is to ask questions that cause students to reflect on what they have learned.” One way for students to develop this attitude is to adopt the habit of carefully editing their work while putting themselves in the shoes of the reader. at least four repetitions each at least once within a day for a final exam. and 1/3 of their time synthesizing the materials. which is still good advice. An expert teacher should give their students study habits.219 Another way is to require that students keep a journal concerning their learning experiences. 1/3rd of their time reflecting on what they learned in class (usually the same day as the class). “Law students must learn how to selfassess both their own study habits and the level of their knowledge.
Similarly. Law and Literature. a teacher should advise their students to rewrite that day’s notes every evening. and give each other hypotheticals (think-aloud exercises). study groups can help students become self-regulated learners.remember things better in long-term memory when it is altered in the memory (deep versus surface learning). such as “flow charts that depict logical flows in the analytical process.225 Likewise. I require students to turn in a draft of their final papers 28 . Students have formed studies groups for many years. For example. Students can also interact using Twitter or text messaging.226 Almost anything that forces the students to restate ideas and concepts will aid learning.” “concept maps that visually express the concepts among the ideas under study.” and “deeply structured course outlines that the hierarchical relations among the concepts being studied” helps retention in long-term memory and making connections. They can serve as a way that students can improve their critical skills. Water Law.227 students can learn from each other. they might consider this fun. having the students create graphical organizers. but are these study groups as effective as they can be? Study groups generally help their members prepare for class and review for exams. I have taught several law classes using a “writers’ workshop” format (Contractual Drafting. Professor Ruskell describes the method he uses: For the past few years. students should synthesize the materials themselves rather than relying on commercial outlines.224 Thus. do problem-solving exercises. In other words. and Art Law). Study groups or even just two students can criticize cases. thus helping them be able to critique their own work. Since many students Twitter. Expert teachers teach their students how to critique the work of others. An expert teacher encourages her students to work together. there is much more that study groups can do. As part of the class. rather than work. Yet.
228 A law teacher should not just teach the “cognitive apprenticeship. procedures. Teachers also need to teach problem-solving skills (miniskills) in addition to case analysis: rule-based reasoning (deductive). and I ask the other students to read the work and provide at least one type-written page of comments (aside from anything they might write directly on the text). it forces students to process material creating larger chunks and connections. and it helps develop 29 . it provides repetitions that strengthens long-term memory. and cognitive strategies in a unique way within a domain of content to solve previously unencountered problems. Legal problem solving often “involves identifying and evaluating the analytical arguments reasonable lawyers would make with respect to the particular set of legal issues presented by a fact pattern and then predicting how a court would assess those arguments and resolve each issue.”231 Problem solving is a good teaching tool because problem solving requires active participation (not just observation).or a particular contract. it helps students to develop the ability to transform knowledge. it furnishes variety keeping students better engaged and attended. and synthesis (inductive) reasoning. and it facilitates self-reflective learning. declarative knowledge.232 Lawyers are problem solvers.234 Using problem-solving exercises helps students learn better.229 She should also teach how that knowledge applies to facts–problem solving.”233 A client comes to an attorney with a specific problem that needs a practical legal solution. distinguishing cases. it challenges students to develop legal skills in context rather than relying on knowing legal rules. analogical reasoning. usually using the Socratic/case method.230 Problem solving is “the ability to combine previously learned principles. not an argument on concerning which rule is best under a law and economics approach.” which focuses on expert knowledge and modes of thinking. They also come to the next class prepared to discuss the work.
”240 Repetition of the if-then chain (problem solving) facilitates speed and accuracy of learning because repetition increases neural firing speed.241 This. but problem solving and other skills training is necessary to develop procedural Knowledge. which are necessary for complex thinking.”239 This if-then relationship is the essence of legal problem solving–lawyers “develop chains of action in response to certain states of the world (conditions) that move to alternative outcomes to acceptable results. In addition. as well as domain-transfer skills.domain-transfer skills. while procedural Knowledge is “behavior.235 Declarative Knowledge is “what we commonly think of as facts and concepts” (“Knowledge what”).243 It is often better for teachers to use worked examples or guided practice before students 30 . “Procedural [K]nowledge refers to knowing how to complete a task. education researchers distinguish between “declarative” Knowledge and “procedural” Knowledge. problem solving exercises help the long-term memory link chunks into larger knowledge networks arranged hierarchically (schemas). Students cannot master the law without procedural learning. develops automaticity. Procedural Knowledge produces action.”237 Traditional law school teaching is good at developing declarative Knowledge.” both muscle movements and cognitive thinking (“Knowledge how”). including knowing different methods of completing the task and when to use different procedures.”236 More specifically. in turn. which increases the speed of an action since these automatic actions no longer need attention in the working memory.238 Declarative Knowledge and procedural Knowledge have an if-then relationship–“if something is present do something.242 Finally.
249 For example.”251 For example.solve problems on their own. rather than the proper procedural chain. analogical reasoning (comparisons). and write up analyzes.250 As one education specialist has asserted. As Professor Niedwiecki has written. a skills professor should give her student a step-by-step method for problem solving. and policy-based reasoning. when teaching issue spotting have you ever told your students. Students need efficient organizational systems that help them link and group ideas (create chunks and schemas). law teachers need to teach skills explicitly. distinguishing cases (the opposite of reasoning by analogy). explicitly learning 31 . which seems to hide the thinking process behind legal reasoning. a legal writing professor should give his students a paradigm for small-scale organization. and when they do so.247 In addition. so that they can see the proper approach.248 Experts teachers help their students develop step-by-step processes to problem solve.”246 In addition.244 In other words. analyze legal materials. they will stick with the trial and error approach in the future. “The key to issue spotting is the ability to see connections between authority (including policy) and facts in complex settings”?252 Among the miniskills that law teachers need to teach explicitly are legal reading. Unlike the Socratic/case method. “Thinking skills need to be explicitly and consciously taught and then used with many types of examples so that the skill aspect and its appropriate use are clarified and emphasized. deductive reasoning (synthesis). Similarly. students often use a trial and error problem-solving strategy. case analysis. rule-based reasoning (deductive or syllogistic reasoning). they should explicitly expose their own thought processes to the students245 because students need to understand the “mental processing necessary to perform the observable tasks. hands on learning should be reinforced by follow-up practice or review so that the hands on learning will be reinforced in long-term memory (so it won’t “decay”).
discuss it with other students. She describes the class as: The basic plan involves an in-class brief that the class works on together.these miniskills helps students transfer them to new situations. one law teacher has come up with a creative way to teach skills explicitly.”256 These authors distinguished “between knowledge-telling and knowledge-transforming when students write essays. and then the students do the same on their own with a different “out-of-class” problem. and at the same time see other students’ thinking processes. Two learning psychologists have noted.255 Expert teachers also teach their students to synthesize materials. discuss it. This distinction is consistent with the idea that the construction of mental models is the key to students' deeper understanding of subject matter. The goal is to force students to articulate the thinking that is often done alone and unconsciously. Synthesizing materials helps law students learn better. students may benefit conceptually from learning tasks that promote the construction of a situation model.254 For example. whereas transformation is regarded as a more active and constructive process in which the writer relates the contents of sources in new ways by making novel connections within source material as well as connections to the reader's knowledge. piece by piece. such as using a textbase. Telling is regarded as a passive transfer of information from text to paper. including thinking. Knowledge-telling thus likely involves a relatively superficial interaction with the textbase. Working and discussing together to create one in-class product. the students become more consciously aware of the thinking process. We do one portion of the thinking or writing process each week in class as a group. the students need to be drilled and drilled in these skills.253 In addition. whereas knowledge transforming may involve a more conceptual interaction with the writer’s 32 . [such as a single treatise] would not lead to better understanding. “In particular. whereas tasks that can be performed with a more superficial representation of the text.
what resources are needed. and a specific argument writing task.”261 Another way to develop transfer skills with a new task is to determine what skills are involved including the details. the teacher could have the students synthesize several cases on consideration. and (3) successful transfer is largely dependent on the student’s own motivations and attitudes toward learning. and goals.situation model of the text contents. writing tasks must require knowledge-transforming and not just knowledge-telling. as well as law practice. to apply formal legal analysis to problems they face. developing domain transfer skills is important for law students.262 Moreover. Professor Kowalski has asserted. As was true for expert teachers. (2) students need practice.”258 For example. One way to achieve this. roles. and how this task relates to existing knowledge.”260 From the meta-level. [so that] they are more likely to anticipate applications for their learning and to draw from past experience in new situations. Similarly. and time to incubate in order to build their ability to transfer. transfer is aided by understanding purpose.”259 According to Kowalski. is to give students access to a variety of sources.263 Professors can also 33 . including both rote and deep understanding. (1) transfer requires a large knowledge base in several areas of study. drill. teachers can develop transfer skills by training students “to see that all of their courses. and so on. that requires them to construct their own take on the information they read. a contracts professor could have her students synthesize the materials on the parole evidence rule from at least three different treatises or encyclopedias. as we have demonstrated. as well as metacognition about his own learning process and how it works. “‘Transfer of learning’ is at the very essence of what lawyers do every day.”257 They concluded: The results suggest “that in order for students to gain a deeper understanding of the subject matter. call for them to be good advocates.
For example. Creativity is also part of the legal thinking process. and remain flexible enough to recognize the need for continuing change and new paradigms for lifelong learning. Another transfer exercise would be to have students write a summary judgment brief then change it into an appellate brief.employ questions to students that serve as cues for students to draw on existing knowledge.264 Finally. such as from micro-economics to contracts. Another form of creative thinking is lateral thinking–thinking outside the box. reflecting on an area will make transfer of knowledge and skills of that area to another domain easier. Likewise. Second. Of course. A harder example of transfer is to have students transfer a learning strategy from one course to a very different course. Legal writing professors could do a simple transfer exercise by asking students how writing persuasive point headings are like writing persuasive questions presented. a student could transfer skills learned in writing an objective memorandum to exams.”266 In college. a student could take a deposition or write interrogatories in a Corporations class. then discuss which of those uses are practical and useful. I learned a twostep approach to creativity. A further example of transfer would be to have students transfer a principle they learned in Legal Ethics to an ethics problem in Corporations. As Professor Halpern has averred. Similarly. First.265 and expert teachers teach their students how to be creative. criticize the results.267 The 34 . a twenty-first century worker must be “someone who can carry out multistep operations. the ultimate goal is for students to be able to transfer knowledge and skills learned in law school to law practice. think about as many uses for a clothes line as possible. “brainstorm” to come up with as many ideas as possible with out being critical in any way. efficiently acquire new information. manipulate abstract and complex symbols and ideas.
MICHAEL HUNTER SCHWARTZ & DENISE RIEBE . and more specifically at the beginning of each chapter. He is not stopped by the difficulty of a problem. He steps outside the confines of logic (logic can only take us so far) and the protocols of a field to find a better answer. “Academic responsibility should be taken seriously by everyone at the school. Professor Stuckey has written: It is the first law school textbook I’ve seen where it is obvious that the authors really want to help students understand what they are supposed to be learning in the course.268 They should teach their students ethics.”270 Fortunately. Finally. the authors tell students the learning objectives of the course. expert teachers serve as professional and ethical role models for their students. nor the fact that others say it can’t be done.269 As Best Practices has asserted. “The book is not only designed to help students develop their traditional case reading 35 . There is no hiding the ball in this book. there are a number of sources that can provide law teachers ideas and materials for teaching skills and using new approaches to legal education. They also explain the governing principles of contract law. A similar code of professionalism should apply to faculty and staff. First.creative thinker sees things no one else sees. and they should help them become professionals. with each book containing a multitude of practical exercises. CONTRACTS AND PRACTICE : A CONTEXT AND PRACTICE CASEBOOK (2009). They even use graphics to give students a visual sense of the concepts of contract law and their relation to each other.271 Speaking of one of the books in this series. and students should be expected to conduct themselves as professionals from the moment they enter law school guided by a student code of professionalism. Carolina Academic Press has published a series of case books. generally at the beginning of the book.272 He added. Right up front. Students will know where they are and where they are going–and why.
and the ethics of discovery. it will also help students study and practice their problem-solving skills in contexts that lawyers might encounter in practice. hybrid/blended/on-line 36 . or a trial practice course. This book can be used as a text for a discovery course or as a supplement to a civil procedure class. Thomson (Lexis/Nexis 2010). respond to interrogatories. There is a wealth of information in each chapter concerning discovery techniques. etc. which includes course portfolios by expert teachers. Lexis/Nexis has a series of supplementary texts.” Similarly. including how to answer discover. . which is part of the series: Thomson organizes the book around each of the major discovery devices. It would also be of great value to practitioners who were not lucky enough to have had someone like Professor Thomson in law school.”277 They have a very useful website. which supplement the hard-bound ones. . teaching strategies (assessment/exams/assignments. There are also on-line materials.273 As one reviewer wrote concerning Discovery Practice by David I. The information contained concisely here would take years for a litigator to learn in practice. strategy for using that technique. . cooperative learning. that contain lots of problem-solving exercises.and analytical skills.274 The Institute for Law Teaching and Learning has yearly conferences on law teaching. presents the federal rules. Each chapter relates to a products liability problem at the end of the book. cognitive research: applications. I highly recommend this book. and they require students to write interrogatories. a pretrial litigation class. I am especially impressed by the great amount of strategy advice.276 Educating Tomorrow’s Lawyer’s (an initiative of the Institute for the Advancement of the American Legal System) “is dedicated to advancing legal education that trains new lawyers to the highest standards of competence and professionalism. simulations. as well as the concentration on the ethics of discovery.275 and they publish The Law Teacher. In each chapter. which has many articles on how to improve teaching.C. he gives an excellent introduction to each topic. the Skills and Values series. then has exercises applying the topic of that chapter.
she could demonstrate a problem-solving exercise applying that synthesis to a set of facts. of course. let’s imagine how an expert teacher might teach a unit (several classes) on personal jurisdiction in a civil procedure class.278 Finally. She could then assign the students to do problem-solving exercises before the next class. and voices from the field. she might assign the students to read the personal jurisdiction chapter in a civil procedure treatise and have a class discussion and further synthesis using that reading.289 To conclude this section. integrating technology. she could go over three key cases. a blog.279 In addition. she would spend considerable time setting up the goals and strategies of the class and preparing for the class. professional law teaching organizations like the Legal Writing Institute.284 Law Schooled.0. She would also assign the students readings or other tasks for the unit.285 Best Practices for Legal Education.283 the Legal Writing Prof Blog. There are also several blogs on legal education.280 the Association of Legal Writing Directors.286 Law School Innovation. Subsequently. The professor might verbalize her thinking process when analyzing the first case. the Center for Excellence in Teaching at Albany Law School sponsors conferences.288 and the Legal Whiteboard. and they have a helpful website. then go over them in class. Then. At the beginning of the first class.learning.287 Law School 2.281 and the Clinical Legal Education Association282 have frequent conferences that encompass skills teaching and legal education. learning theories: applications. using a Socratic teaching approach. First.290 then let the students analyze the other two cases.291 The class discussion could 37 . Next. she could have the class synthesize the law of personal jurisdiction from the three cases. Next. including the goals of the unit. she would introduce the subject. including the Legal Skills Prof Blog. verbalizing her mental steps in the problem-solving process. rubrics).
292 Being an expert teacher does not mean that the teacher adopt a single teaching method. 38 . She could even have a class debate that applies the law on personal jurisdiction. I have discovered a great deal about the needs of beginning law students. she might have the students write a short paper that brings together what they have learned or create a flow chart on personal jurisdiction. I have worked individually with first-year students in academic trouble.include the analysis of several hypotheticals and litigation strategy and ethics concerning personal jurisdiction. practice motion oral arguments and mock exams. I have experimented with different forms of instruction to help students learn not only the law of procedure but also the skills necessary to succeed in law school and in practice. Conclusion One law professor has described how she became a master teacher: In my 18 years teaching Civil Procedure to first-year law students. Nevertheless. a self-regulated teacher. I formed a summer academic support program in which I teach both the law and legal study skills to a small group of incoming law students. being an expert teacher requires that the teacher be an engaged teacher. The students could follow up on this with discussions in their study groups. I have used written essays. and a reflective learner/teacher. individual conferences. pleading drafting. Finally. group exercises. there are many different types of expert teachers.
DORTHY H. JUDITH WELCH WEGNER. Paula Lustbader. REV .AL. 4. Law Teaching). 13 WIDENER L. Lawyers and Learning: A Metacognitive Approach to Legal Education. 17/1 THE LAW TEACHER 12. L. HARV . LLOYD BOND & LEE S. Teaching Law Students to be Self-Regulated Learners. Anthony Niedwiecki. Additionally. L. ST . Learning as Top Priority in the Law School Classroom. 595.”). 38 SAN DIEGO L. 9.com/sol3/papers.C. SHELL ET . 40 (2006). 7. AL.lsac. 839. The Law School Critique in Historical Perspective. 10. supra note . at *2-3 (2012). REV . ANNE COLBY . Law Teaching. DEVELOPING AN ASSESSMENT OF FIRST -YEAR LAW STUDENTS’ CRITICAL CASE REASONING AND REASONING ABILITY : PHASE 2 http://www.. 64 (1992). DUANE F. DCL L.. Report of the Task Force on the Future of the Legal Profession 38 (2011) (“Too many law students and recent graduates are not as well prepared for the profession as they might be. Professor Burgess has argued. Michael Hunter Schwartz. EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (Jossey-Bass 2007) [hereinafter CARNEGIE REPORT ]. BECOMING A REFLECTIVE TEACHER 1 (2012).AL. THE UNIFIED LEARNING MODEL: HOW MOTIVATIONAL. many law schools do not offer significant teaching mentorship programs.” Hillary Burgess. REV . Schwartz.g. How Do Lawyers Really Think? 42 J. Erwin Chemerinsky. 1 (2011).pdf at1 (2008).. 17/2 THE LAW TEACHER 1. MARZANO ET . REV . 2003 MICH . The Challenges of ‘Innovative’ Teaching. 8. ROBERT J. Schultz. Benjamin Spencer. 347 (2001) (hereinafter Schwartz. 449-51 (2003) 39 . Rethinking Legal Education. SHULMAN . BEST PRACTICES IN LEGAL EDUCATION 150 (2007) [hereinafter BEST PRACTICES]. see generally WILLIAM M. “One of the biggest obstacles to meeting best practices in teaching is that law professors are traditionally given no formal instruction on teaching and learning theories.” Id. From Dreams to Reality: The Emerging Role of Law School Academic Support Programs. 31 U.F. New York State Bar Association. 57.L. LEG . COGNITIVE . 6. at 597). E. Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching. Nancy L. Nearly every class used basic lecture and exam structure. Michael Hunter Schwartz. 2.1. EVENSEN ET .S. 855 (1997).REV .”).org/lsacresources/Research/GR/GR-08-02.cfm?abstract_id=2017114. 447. AND NEUROBIOLOGICAL SCIENCES INFORM BEST TEACHING PRACTICES 179 (2010).R. 12 (2010) (“When classes began. I was disheartened to find that few courses used teaching methodologies or course formats driving learning in ways I knew to be effective. SULLIVAN .. ROY STUCKEY ET AL.ssrn. 3. at 349. C. EDUC. especially with mentors who have been trained in the art and science of teaching. 5. http://papers. 595 (2008) (“[T]here is no way to reform legal education in any meaningful way without giving law students far more experience in the practice of law. 33. A. see also Samira Guyot.
see also GEOFF COLVIN . Four Simple Lessons about the Needs of First-Year Law Students. Id. I will use synapse when I am referring to the connections between neurons. supra note . Value of Variety: An Organizing Principle to Enhance Teaching and Learning. supra note .” Gerald F. 3 (2010) [hereinafter Burgess.[hereinafter Schwartz. 867. The brain has two main functions: 1) “to take in and save information about the world from the senses. THE BRAIN AND THE MEANING OF LIFE 42-66 (2010). at 8-9. THAGARD . 40 . SHELL ET . 61 RUTGERS L.. Teaching Law Students]. and Metacognitive Monitoring.J. REV .” SHELL ET . at 12. Jay Feinman & Marc Feldman. THAGARD .AL.A. at 44. 17. 449. 22. Halpern. at 8-9. “Cognitivists explain learning by focusing on the development of cognitive structures and processes in the human brain.” and 2) “produce motor outputs that generate functional behaviors in the world. 20. 3 ELON L. Deepening the Discourse Using The Legal Mind’s Eye: Lessons from Neuroscience and Psychology that Optimize Law School Learning. 451 (1998). This is especially important since law schools are currently accepting students with lower indicators (LSAT and G. Diane F. PSYCH . Pedagogy and Politics. REV . I will use connections in its more general meaning. at 44-45. at 45. Wegner. TALENT IS OVERRATED : WHAT REALLY SEPARATES WORLD -CLASS PERFORMERS FROM EVERYBODY ELSE (2008). 896-97 (1985).. 53 AM . 67 (2011) [hereinafter Hess. 1. 73 GEO . REV . 19. Carol Andrews. 14. Value of Variety]. supra note . 23. at 44 (quoting Steven Pinker). Reframing Legal Education’s Wicked Problems. Hillary Burgess. L. Teaching Critical Thinking for Transfer across Domains: Dispositions. 16. 11.. 4 (2012). Structure Training. Id. supra note . 875. PAUL THAGARD . Deepening the Discourse].P. at 132. BEST PRACTICES. at 46-50. supra note .AL. 21. supra note . Skills. 12. 13.) because law school applications have dropped. Hess. Id. The parts of the brain associated with learning are located mainly in the cortex. 18/2 THE LAW TEACHER 4. Judith W. 938 (2009). 29 QUINNIPIAC L. 18. Id.AL. at 7. 65. See also SHELL ET . 15.
Id... at 10. at 11. NEUROSCIENCE. Id. 28. SHELL ET .. 35. Id. Dr. Id. 38. at 10. supra note . Professor Pinker points out that “the brain changes when we learn. Id.AL. at 33. As the authors assert. 36.. To avoid confusion.24. SHELL ET . 31. 19. at 1. 27. 40. at 7. Id.AL. 34. at 10. Id. Id. Id. 33.AL. THE BLANK SLATE : THE MODERN DENIAL OF HUMAN NATURE 85 (2002). supra note . at 3. at 11. 10-13. supra note . and “knowledge” when I am using the general meaning. Id. It appears to be a collection of brain regions in the prefrontal cortex along with other structures such as the hippocampus. 30. LAW AND HUMAN BEHAVIOR: A STUDY IN BEHAVORIAL BIOLOGY . In this book. Shell and his co-authors have produced a unified model of learning that synthesizes research on learning theory. Id. 37. I will employ “Knowledge” when I am using the Shell meaning. 26. supra note . at 103. Id. at 8. at 9. Id.AL. EDWIN SCOTT FRUEHWALD . at 2. 39. 41. 25. at 2. 42. “What the ULM does is bring these disparate topics together under a single umbrella. 29. Id. SHELL ET . 41 . Id. AND THE LAW 14-16 (2011).” Id. “Working memory does not have a clearly defined anatomical area. see also SHELL ET .” STEVEN PINKER. Id. 32.
but if they are not motivated to focus their attention on the learning task.. 58. 48.. 60. at 66 (“Students may have all their working memory capacity available. Id. Id. supra note . Id. at 21. at 20. at 41 (“When students form connections between information in their long-term memory. at 57. at 27. at 12. 50. Id. 53. A Central Capacity Limit to the Simultaneous Storage of Visual and Auditory Arrays in Working Memory. 47. Id. they can chunk the entire schema into one memory slot. 52. at 3. 13. Id. SHELL ET . they likely will not learn anything. at 27. at 28..AL. 59. 22. 46. Id. Id.43. at 35. Deepening the Discourse. Id. Pattern matching is usually not exact. Id. SHELL ET . 54. see generally J.” Id. 44. 57. Id. Id. See supra note and accompanying text. at 20.”). at 20. see also Burgess. “Chunks dramatically expand working memory capacity. at 27. 61. 56. Id. at 22. 24. 29. Id. supra note . 663 (2007). Id. at 12. 136 J.”). Scott Saults & Nelson Cohen. Id. 42 . 62. and allocate their capacity to that task. GEN . 45. Id. 49. supra note . EXPER. at 12. 51. Id. PSYCH . 55.AL.
76. at 46. 67. 68. Id.AL. supra note . 77. Id. at 61-2.63. 73. 69. Id. KAHNEMAN . Repetition is most effective when there is variety in the repetition. Id. at 452. supra note . Id. “All neurons learn the same way and processing of the information. Id.” Id. Id. at 40. at 45-46. supra note . except for the last one. at 15. at 3. The 2011 Survey of Law Student Engagement found that “Forty percent of students felt their legal education had contributed ‘only some or very little to their acquisition of job or work43 . 75. These are self-explanatory. Id. at 7. at 142. supra note . DANIEL KAHNEMAN . The ULM is a micro-level cognitive model. 81. at 238. at 13. 64. 70. Repetition is much more than rote memorization or “drill and kill. 79. Id. Contextualizing also helps give variety to repetition. 72. THINKING . Id. 82. at 20-21. 80. at 65. Concerning the last one the authors state. Id. Id. 65. Id. 74. Id. 78. at 14-15. SHELL ET . KAHNEMAN . supra note . at 31. supra note . Halpern. COLVIN . see also MARZANO . FAST AND SLOW 46 (2011). at 41-46. Id. at 14.. 71. 83. at 238. at 16.” Id. This does not mean that all students learn everything equally. supra note . 66. at 99. BEST PRACTICES. at 181.
100 Psych. 86. Students Happy with Law School Experience. (“Top performers repeat their practice activities to a stultifying extent. Corie Rosen & Hillary Burgess. Id. supra note . at 24. Id. supra note .. 90.. The Role of Deliberative Practice in the Acquisition of Expert Performance. al.law. with Caveats. at 7. Id. Expert Performance. 84.jsp?id=1202538236462&slreturn=1) (Jan. and Academic Success. (“Deliberate practice is above all an effort of focus and concentration. al. see also COLVIN . 85. Anders Ericsson et.com/jsp/nlj/PubArticleNLJ. Rev. 2012). K. COLVIN . at 7 (quoting K. supra note .. supra note .AL. 87. THE LEARNING CURVE 2. (“There’s a reason why the world’s best golfers still go to teachers. Giftedness and Evidence for Reproducibly Superior Performance: An Account Based on the Expert Performance Framework. 92. at 6. we force ourselves to see–or get others to tell us–exactly what still isn’t right so we can repeat the most painful and difficult parts of what we’ve just done. supra note . 94. 44 .”).J. 88. (http://www. L. 363.”)... More than Merely Doing: Deliberate Practice. Id. Id. see also SHELL ET . 4 (Spring 2010). at 69.”). 95. 97. MARZANO . supra note . at 71-72.AL. Id. 24 (2007) [hereinafter Ericsson et. 368 (1993). at 63. NAT . Id.related knowledge and skills. at 7. 93. 99. MARZANO . Feedback. at 70.). SHELL ET . MARZANO . at 156-57. Being a self-regulated teacher satisfies the ULM.’” Karen Sloan. Id. at 156. supra note . Anders Ericsson et. 12. at 67. supra note . Ericsson et al. al. Expert Performance]. 18 HIGH ABILITY STUDIES 3. MARZANO . 91. 89. 96. supra note . 98.. at 6-7. at 71 (“After each repetition.
supra note . during the work. 112.. Teaching Law Students.. at *30.ed. at 454. see also COLVIN . Stratman. 67 UMKC L. Introducing Law Students to Bloom’s Taxonomy. https://teal. When Law Students Read Cases: Exploring Relations between Professional Legal 45 . JUST WRITE GUIDE . rather than merely preparing for class. see also COLVIN . at 116-17 ([T]he poorest performers don’t set goals at all. 103. at 116-21 (Before the work. 115. etc. supra note . 102. at 457.. Id. Schwartz.”). 109. 21 (2012). 110. at 455. 367. supra note . Id. at 75-76.AL. 111. Schwartz. at 456. Gerald F.gov/resources at * 29 (2012). at 21. REV . at 472. Teaching Law Students. Id. Teaching Law Students. at 76. Id. supra note . after the work). James Stratman posits that students understand more when they read with a “real world purpose” (as a judge. 118. Schwartz. 385 (1998). at 452. Positive emotions affect self-efficacy. 106. SHELL ET . at 74-76. 119. see also SHELL ET . supra note . at *29. The Legal Educator’s Guide to Periodicals on Teaching and Learning. 117. 105. Id. 116. 471. 18/2 THE LAW TEACHER 21. Id. 101. James F. Hess. supra note . Id. JUST WRITE GUIDE .AL. Schwartz. 108. supra note . supra note . 107. Carol Tyler Fox. Halpern. supra note . Teaching Law Students. 104. they just slog through their work. at 453-54. Teaching Excellence in Adult Literacy.). an advocate. JUST WRITE GUIDE .100. 113. 114. supra note . supra note . at *33. Id.
see also COLVIN .”). eds. at 117. Studies of Expertise from Psychological Perspectives. & SOC. COLVIN . Schwartz. L. in THE CAMBRIDGE HANDBOOK OF EXPERTISE AND EXPERT PERFORMANCE 55 (K. MARZANO . 131. self-question. Legal Reading. supra note . L. just as a pianist may focus on improving a particular passage.al. at 42-43. 126. supra note . 132..U.. supra note . including teaching. J. supra note .” JUST WRITE GUIDE . JUST WRITE GUIDE . 129. 10 (1995). search for important information. Lyons ed.. CHANGE 225. Schwartz. supra note . 2006). Anders Ericsson et. 23 N. “Strategies help make explicit the routines and techniques employed by effective learners so that all learners can be more effective.”). Id. A Prototype of Expert Teaching. Schwartz. 122. supra note . 123. summarize. 124. at 458. make inferences. at 460-61. The same is true for all types of thinking. at 117 ([T]he best performers are focused on how they get better at some specific element of the work. P. Peter Dewitz.. at 608.”). 121. at 458-59. supra note . Teaching Law Students. see also COLVIN .AL. Robert Sternberg et. 228 (1997) (Strategic readers “set a purpose for reading. Law Teaching. al. al. 46 . 128. at *39. at 457. 133. Legal Education: A Problem of Learning from Text. Niedwiecki. 127. in HANDBOOK OF REFLECTION AND REFLECTIVE INQUIRY : MAPPING A WAY OF KNOWING FOR PROFESSIONAL REFLECTIVE INQUIRY 177 (N. 125. 24 EDUC. 2010). supra note . RESEARCHER 9.Reasoning Roles and Problem Detection.Y. REV . 34 DISCOURSE PROCESSES 57 (2002). Teaching Law Students. supra note . 2006). 120. Id. at 11. REFLECTIVE PRACTICE TO IMPROVE SCHOOLS: AN ACTION GUIDE FOR EDUCATORS 4 (2d ed. supra note .al.. Feltovich et. Marian Murphy et.. at *41. at 162. at 117 (“the most important self-regulatory skill that top performers use during their work is self observation. 130. JENNIFER YORK-BARR ET . See Christensen. supra note . Reflective Inquiry in Social Work Education. and monitor the developing meaning.
137. at 124. MARZANO . Are We the Teachers We Think We Are? Observing Others Teach–Lessons for the Teacher.AL. LAW ’S EMPIRE 228-32 (1986). 12/1 THE LAW TEACHER 3. at 229. SCHÖN . 146. supra note . 51 SEATTLE U. Halpern. 151. Miller. Hess. 143. Christensen. 443. 149. and it helps students make connections. Id. 609 (2007). 144. supra note . and Programs.. 51.134. 141. 142. 145. Principles. True North: Navigating for the Transfer of Learning in Legal Education. Gerald F.. 140. REV . SHELL ET . 30 SEATTLE U. see also SHELL ET . THE REFLECTIVE PRACTITIONER 26 (1987). at 30. at 123. at 116. supra note . Improving Teaching and Learning in Law School: Faculty Development Research.AL. REV . at *32. supra note . 51. at 129. I have discerned that one reason novice law students fail is because they lack this skill. 148. SHELL ET . at 5.AL. 152. JUST WRITE GUIDE . 17/1 THE LAW TEACHER 7. Id. 12 WIDENER L. 7 (2011). at 180. Leah M. at 453. 153. Legal Reading and Success in Law School: An Empirical Study. 79 (2010). MARZANO . Id. Summarizing at the end of class helps the students retain the material through repetition. 135. L. 147. DONALD A. REV .. Teaching Philosophy Statement of Nelson P. Tonya Kowalski. Id. at 151. JUST WRITE GUIDE . 454 (2006). 136. at 13. supra note . 47 . Dewitz. 150. Sophie Sparrow. 139. supra note . supra note . L. 138. supra note . supra note . supra note . 603. RONALD DWORKIN . 3 (2004). Id. COLVIN .
for each of a countless number of specific situations. JUST WRITE GUIDE . at 12. at *28. at 453. at 979. supra note . Id. supra note . Halpern. 171. 159. 162.”) Schemata store information. supra note . at 454. 165. SHELL ET . supra note . 161. 169.). Value of Variety. 48 . supra note . Wegner. 172.. supra note . at *28. at 373 (“These structures contain slots. the professor should share these goals with their students. at 55. Id. 167. theoretically organized like a card catalogue. at 69. *30. Halpern. at 453. JUST WRITE GUIDE . at 65. 170.. Of course.154. procedures. Id. SHELL ET .”).” Guyot. Kowalski. see also Hess. supra note . preferably in writing. 166. (Comparing schemata to computer programs. at 115. 164. at 130.AL. 155. Id. Id. 163. 157. supra note . supra note . supra note . 168. Halpern. supra note . and subprocedures. supra note . at 54. 156. 160. at 71 (“Teachers should write learning objectives for courses they teach and for individual class sessions. at 453.AL. at 118. The brain organizes information in data structures in longterm memory (“schemata”). supra note . Id. see also Kowalski.. supra note . Schwartz. BEST PRACTICES. 158. Teaching Law Students. Id. Schwartz. supra note . at 419. “Learning theory and research at every academic level tells us that meaningful feedback about a learner’s skill or knowledge is the connection which drives learning.
” Burgess. 179. supra note . 184. SHELL ET . KAHNEMAN . see also Christensen. SHELL ET .AL.AL. such as negotiation or even legal research. The student hears the information and can store it just long enough to follow along with the conversation. at 52. For example. 183. Maranville. See generally Hess. at 14-15. at 27. at 81 (“Empirical research establishes the effectiveness of multiple-sense. McMunigal. but instead emphasizes the practice¯context in which multiple strategies.173. Value of Variety. at 31-38. Id. Diagraming Crimes. at 69. Deepening the Discourse.. supra note . If the cell phone conversation starts to demand working memory allocation. Professor Wegner has similarly written. supra note . Professor Burgess presents a key point for classroom learning. supra note . LEG . So. 174. Kevin C. MARZANO .. Burgess. at 65. In addition. 185. supra note . “Working memory explains why students believe that they are learning when they attempt to focus simultaneously on email and what the professor is saying. Infusing Passion and Context into the Traditional Curriculum through Experiential Learning. see below notes . 177. at 45. EDUC. 178. Id.” Wegner. “Active learning and authentic experiences in which students are acting like lawyers enhance motivation and interest for most students. skills. supra note .. 51. Value of Variety. Id. supra note . SHELL ET . SHELL ET . 12/1 THE LAW TEACHER 1. the driving may become unsafe. 180. 176. 175. Deepening the Discourse.” Hess. “The emphasis on engagement in¯complex practice places the focus where it should be.”). at 118-19. supra note . and tools must be employed.AL. supra note . 49 . Deborah A.. at 884. and the information is gone forever. 56 (2001). not in individual¯practice skills. the key is getting the student to see th learning goal. a student can hate statistics. 182. supra note . Id. at 82.. 1-2 (2004).AL. at 121. supra note . 51 J. at 48 (“It’s a good choice when state legislatures pass laws concerning the use of cell phones while driving. Value of Variety. but can learn it if he has the goal of learning statistics so the can analyze research data. supra note .and accompanying text.”). A student doesn’t even have to interested in the subject or enjoy the learning if they have a learning goal. Id. at 53. but forgets what was said quickly. active methods of learning. at 636-40. see also Hess. supra note . 181.
Schwartz. at 241. She added: “We can assign our students specific purposes (other than preparing for class) for which to read any given case. at 407. 190. Professor Sparrow notes. Id. at 239. at 124. the current assessment practices used by most law teachers are abominable. at 913. ALISON BONE . at 408. NATIONAL CENTRE FOR LEGAL EDUCATION . 193. that is what should be tested. at 87-88. supra note . James Stratman thinks that students understand more when they read with a “real world purpose” (as a judge.” Wegner.AL. since the goal of law schools is to graduate competent lawyers. supra note . except perhaps in legal writing and research courses. SHELL ET .”). at 636. supra note . and while they may be scored. 189. SHELL ET . supra note . affects the reliability of those exams. have multiple and varied opportunities to practice meeting performance criteria.. at 406. supra note . at 884. at 613). at 57. supra note .. at 612-14. 191. students know what they are expected to learn. supra note . 188.). Id. Value of Variety. SHELL ET . Professor Schwartz similarly points out that the traditional law school exam fails because it doesn’t test competency. he thinks that the failure to create several testing items for each learning objectives.186. 16/1 THE LAW TEACHER 1. see also KAHNEMAN . Schwartz. at 236-39 (“In sum. 1999). Similarly. supra note . see also BEST PRACTICES. “experts on learning tell us that the most effective learning environments are ‘assessment centered’ In those environments. Likewise. see also Christensen.” Id. supra note .AL. Law Teaching. 192. at 142-43. Law Teaching. supra note . Stratman. supra note .” Sophie Sparrow. an advocate. at 2.. supra note . and receive feedback on meeting those criteria. BEST PRACTICES. supra note . 196. supra note . as in traditional law school exams. Schwartz. 634-636 (“Problem recognition rates for the three real world-roles were consistently better than those for the class recitation task. 194.AL. Taking a Small Step to More Assessments. ENSURING SUCCESSFUL ASSESSMENT 3 (Roger Burridge & Tracey Varnava eds.). at 115. at 255 (“Their purpose is purely educational. at 375. 197. at 239.. supra note . 195. 187. Wegner. supra note . supra note . see also Hess.. at 141. Rosen & Burgess. 1 (2009).” Id. see also Hess. 143. Professor Wegner has called formative assessment “learning from experience. they are not used to assign grades or rank students. understand the criteria used to evaluate their performance. a practice 50 . rather than merely preparing for class. etc. They also learn how to use the feedback to improve their learning. Law Teaching. Value of Variety.AL. supra note . at 87 (Formative assessment provides students an opportunity to perform (for example. BEST PRACTICES. SHELL ET .
CONTRACTS: A CONTEXT AND PRACTICE CASEBOOK 71-20 (2009). Id.AL. Printrich ed. 206. SHELL ET .g. the ULM is about selfregulation. supra note . 1995). first attempt at an oral argument) and get feedback (e. SHELL ET . Progress in Practice: Using Concepts from Motivational and Self-Regulated Learning Research to Improve Chemistry Instruction.AL. 211. in press (2012). 4) they do not monitor the success of what they are doing by determining when they have studied enough. 5) they do not always use all of the relevant information. at 161. supra note . BRIAN P. 6) they often use step51 . He has noted that students often come to law school lacking metacognitive skills: “1) they don’t know when a task is easy or difficult. 200. 201.” Niedwiecki. Professor Niedwiecki has averred. supra note . 63. 203. supra note . at 245-46.. at 240. at 245. but an effective assessment device in skills classes or clinics.” SHELL ET . at 34. BEST PRACTICES. at 143-44. COPPOLA . Id. Krieger & Serge Martinez. 210.. MICHAEL HUNTER SCHWARTZ & DENISE RIEBE .. which of these works best depends on the class. For example. oral exams might be unwieldy in large class.exam.AL. supra note . Id. 89-90 (Paul R. Of course. supra note . 202. “that at its heart. Id. Value of Variety.. Id. 199. at 41. at 143. 243. Id. Performance Isn’t Everything: The Importance of Conceptual Competence in Outcome Assessment of Experiential Learning. “Lawyers never stop learning. paper draft. in NEW DIRECTIONS FOR TEACHING AND LEARNING : UNDERSTANDING SELFREGULATED LEARNING NO .. 198. JUST WRITE GUIDE . Professor Shell and his colleagues have declared. 209. SCHWARTZ & RIEBE . at 23. supra note . at 90. at 720-30. see also Stefan H.”). a score sheet or comments). Hess. 19 CLINICAL L. at 241. Similarly. 2) they do not fully understand when they are confused or do not fully understand a particular concept. 208. supra note . 3) they do not always know how long some task may take and what they need to do. 212. 204. REV . 205. at 258. 207. at 145.
“The most effective learners are self-regulating learners because these adept learners are able to plan. See also Wegner. their learning is likely to be more superficial and last for a shorter period of time. 483.. at 2 (“Professors must teach so that their students can retain their learning for a lifelong career in law. Teaching Law Students. at 8. at 5.AL. Although commercial outlines or other study aids can provide feedback as to whether students have accurately synthesized a rule. Law Teaching. at 135. supra note . at 45. Deepening the Discourse.. at least into long-term memory potentiation. Deepening the Discourse. at 24-25. supra note .” Id.. Id. 218. at 62. supra note . SHELL ET . See also Andrews. at 277. supra note . supra note . MARZANO . at 26. supra note . supra note . at 377 (“Students learn new material better when it is presented graphically.”). at 37 (“This research would suggest that the processes of synthesizing cases and creating an outline helps the student store her understanding of the rule of law in long-term memory more effectively than reading a commercial outline. Burgess. even when they ultimately turn out to be incorrect. 219. 216. BEST PRACTICES. SHELL ET .AL. supra note . supra note . at 379. monitor. 222. by way of hierarchy and flow charts. if students use them in lieu of synthesizing cases. visual 52 . 224. Schwartz.”). 213. Andrews. 214. supra note . supra note . SHELL ET . Schwartz.AL. 217. 215. see also Niedwiecki. at 934 (“‘Coaching’ by providing guidance and feedback. supra note . Professor Niedwiecki has argued. supra note . 221. “ Any time working memory temporarily held contents. at 376. at 25-26. at 4-5.”) 226. at 480. supra note . 225. supra note . and 7) they often jump to preliminary conclusions that guide their complete analysis.” Id. see also Part IV. Law Teaching. supra note . B above. 220. at 3 (“Because of the way the brain is designed. 223. see also Burgess.). Deepening the Discourse.” Niedwiecki. MARZANO .by-step approaches without thinking about why they used the particular approach. the result of that manipulation appears to be stored. at 8.” Niedwiecki. supra note . at 44. supra note . at 24. and modify cognition at various stages during knowledge acquisition. Schwartz. see also Burgess.
supra note . This process of recognition may create a new organization of elements in working memory that triggers a pattern match. at 28. SHELL ET . supra note . supra note .AL. 232. 240. 236. at 276. Professor Hess adds that “Declarative [K]nowledge is a prerequisite to more sophisticated types of learning. supra note . THE CARNEGIE REPORT . Id. BEST PRACTICES. at 43. Law Teaching. at 9.” BEST PRACTICES. 237.”). procedural learning includes the sequence of questions appropriate to determine whether evidence is admissible hearsay or the legal research steps to determine whether there is a statute or regulation on point. at 277. 53 . 1999). 227. The Problem Method: No Simple Solutions. BEST PRACTICES declared. deepen understanding.AL.. 231. supra note . Concerning the first year of law school. at 54 (“One of the key processes of working memory is to connect input in working memory storage together in different ways. 238. see also Wegner. 234. Professor Wegner has noted the false dichotomy between theory and practice. at 73. Id. Finally.” Hess. Schwartz. 775 (2009). 228. at 43-44. See supra notes . at 39. at 29. Deepening the Discourse. Wegner.aids increase efficient learning. Professor Shell and his colleagues pointed out. 45 Williamette L. 239. Value of Variety.AL. This is because “the visual function of short-term memory expands the verbal function of short-term memory. INSTRUCTIONAL DESIGN 132 (2d ed. supra note . Shirley Lung.”).. at 39-45. Wicked Problems. As noted above. supra note . supra note . at 139. Professor Hess gives an example: “For example.” Hess.” Id. SHELL ET . 229.” SHELL ET . see also SHELL ET . Burgess. Professor Kahneman thinks that expertise requires the development of many miniskills.and accompanying text.. supra note. supra note . supra note . at 969. PATRICIA L. 230. 233. 18/1 THE LAW TEACHER 7. especially discussion of problems should be the prevalent method of instruction. 7 (2011). 235. at 74.AL. RAGAN . at 397. supra note . and enhance long-term retention. Alex Rushkell. supra note . Teaching Student’s How to Evaluate a Written Work’s Quality. at 974-76. Value of Variety. “That’s why pilots and physicians train with simulators. SMITH & TILLMAN J. at 45. 743. Id. “Context-based instruction. Rev..
” 16/1 THE LAW TEACHER 4. Wegner. Charles. supra note . The Carnegie Report stressed the need for making analytical skills explicit. Niedwiecki. at 49. 243.241. 253. 59 J. supra note . at 33. 251.” COLVIN . Automaticity is basically the same as Kahneman’s System 1.AL. Law Teaching. Id. 5-7 (2011). at 52. Miller & Bradley J. Barbara Blumenfeld. Deepening the Discourse. supra note . 252. SHELL ET . at 934. 259. Id. supra note . Halpern.. at 58. 250. Constructing Arguments from Multiple Sources: Tasks that Promoting Understanding and Not Just Memory for Text. supra note . at 55. 242. at 61. at 55. 249. 256. at 241. Id. Teaching Issue Spotting Explicitly. Id.4 (2009). 192 (2009). Leg.. 182. Voss. Jennifer Wiley & James F. supra note . Schwartz. supra note . 54 . see also Schwartz.AL. at 309. PSYCH . SHELL ET . Meeting the Carnegie Report’s Challenge to Make Legal Analysis Explicit: Subsidiary Skills to the IRAC Framework. 257. Id. see also Nelson P. Colvin remarks that “Practice activities are worthless without useful feedback about the results. supra note 12. at 47-48. See KAHNEMAN . at 46-47. at 11. Id. Educ. 120. at 378. 18/1 THE LAW TEACHER 3. Niedwiecki. THE CARNEGIE REPORT . supra note . This article also has other helpful advice. Law Teaching. David Nadvorney & Deborah Zelesne. 258. 254. 301 (1999). 246. 255. at 415-16. supra note . Teaching Thinking and the Legal Creative Process. Burgess. at 165. such as how to relate subissues. Professor Wegner calls this “modeling”–making cognition visible. 26. 245. 91 J. at 55. EDUC. supra note . 247. Kowalski. Id. 248. 301. 244. at 118. at 454. supra note . supra note .
Blumenfeld. BEST PRACTICES. passivity and unproductive competition to create a different kind of culture that fosters intrinsic motivation and in turn improves the deteriorating professionalism of the bar?” Wegner. “Could the dynamics of law school classes be reshaped to move beyond the current culture of silence. at 56 (We want the students to have “the capacity to transform the perception of law school from a collection of disparate courses to a continuum of thematically-related elements.com/p/CAP. Professor Wegner has asked. supra note . supra note . Id. at 939. 265.typepad.cap-press. at http://www. humanistic motives (serving justice. Roy Stuckey. 55 .com/store/catalog/catalog. especially the faculty. EDWARD DE BONO . Carolina Academic Press. at 277. and staff. at 147. administration. Professor Kowalski suggests that adopting altruistic. Review: Discovery Practice by David I. 273. 271. at 77. 272. The Carolina Academic Press: Context and Practice Series casebooks include “professional development reflection questions” in each chapter. Colvin has declared. See generally. Skills & Values Series. supra note . at 450. helping a client) can aid transfer.”).”) 269. Id. 3 (2009). COLVIN . supra note . Id. at least according to one line of thinking. at 58-59. “Creativity and innovation may even be the key to future economic prosperity of America and other developed countries. Context and Practice Series. 266.com/legal_skills/2012/01/review-discovery-practice-by-david-ic-tho mson.lexisnexis. supra note . 264. supra note . Id. Lexis/Nexis. Thomson. 261. at 58. at 129 (“Law schools will be unable to instill a commitment to professionalism in their students if a commitment to professionalism is not evident in the words and conduct of the faculty. Contracts: A Context and Practice Casebook. LATERAL THINKING CREATIVITY : STEP BY STEP (1970). BEST PRACTICES. Wicked Problems. Legal Skills Prof Blog at http://lawprofessors. 2012). 16/1 THE LAW TEACHER 3. Id. at http://www.260. 270. 267. Halpern.C.”). 274. at 58. at 3.html (January 12. 262.jsp?id=cat80154. 268. 263.
277.com/legalwhiteboard/. Educating Tomorrow’s Lawyers.lwionline. http://lawprofessors. validate student participation. ideas. at 64.du. Niedwiecki. Id. BEST PRACTICES describes class discussion as “Discussion is a non-hierarchical technique.typepad.org/. 290.typepad.edu/.com/legalwriting/. http://lawschooled. 283. http://www. http://www.org/lawteacher/index.org/. They continue.com/legal_skills/. 276.edu/sub. Institute for Law Teaching and Learning. Educating Tomorrow’s Lawyers. and allow time for reflection.alwd. “ETL leverages the Carnegie Model and the work of law schools and professors committed to legal education reform to align legal education with the needs of an evolving profession by providing a supported platform for shared learning.du.org/.php. http://lawprofessors.typepad. 285. supra note . Students’ opinions.” BEST PRACTICES. Discussion features two-way spoken communication between students and teacher and direct interaction among students themselves.php?navigation_id=1709. ongoing measurement and collective implementation. keep the professor’s views to himself. http://lsi. http://lawprofessors. The Law Teacher.edu/about-etl/.com/lsi/. Center for Excellence in Teaching (CELT). at http://lawteaching. at http://www. 286.org/index. experimentation. at http://lawteaching. http://www. 284. A key to effective discussions is to have clear goals for the discussion. unlike Socratic dialogue and lecture. and experiences are valued as well as their understanding of assigned readings. http://bestpracticeslegaled.org/.org/.275. ask lots of focused questions. 288.” 278. 56 . at 227-31. 280.typepad. maintain a somewhat democratic classroom.cleaweb.albanylawblogs. Why ETL? at http://educatingtomorrowslawyers.lawschool2. at 226. 287. 282.org/. 291. 289. 279.albanylaw. supra note . 281. http://www.php. at http://educatingtomorrowslawyers.
supra note . at 4. Andrews. Professor Rice does not call herself a master teacher. 57 . this is my description based on her approach.292. Rather.
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