CELL Blog | Center for Engaged Learning in the Law

Should final exams be worth as much as 75% of a course grade? Perhaps not if we are trying to conduct humane authentic assessment. A recent higher education listserv contained postings about how to weight a final exam, including comments that weighting a final exam as much as 65% was a bit steep. Other contributors, all teachers committed to student-centered teaching and learning, suggested that around 33% was about right. One even noted that in law the only determinative was “Just the final exam. Talk about stress!” In practice it’s more valuable to stay on top of assignments rather than cram before a deadline. But don’t we – and the bar exam – teach and reinforce students cramming at the end? This semester I let my upper-level students work out how much the final would count – their choice: 20%. It means more assignments and assessments but they practice more often and, I hope, learn more.

Tuesday, March 25, 2008, 01:27 PM –
Posted by Michael Hunter Schwartz

I am in search of the best law teachers in this country, and I could use your help. I have the extraordinary opportunity to conduct a law professor-focused, follow-up study to Ken Bain’s wonderful WHAT THE BEST COLLEGE TEACHERS DO (Harvard University Press, 2004).

Thus, this posting is a solicitation of nominations. In particular, I am looking for teachers who consistently produce extraordinary learning, who change their students’ lives and whose instruction stays with students long after they graduate from law school.

I hope what I produce inspires you as much as Professor Bain’s work has inspired me. Over the next three years, I will be:
** soliciting nominations;
** gathering evidence of nominees’ excellence;
** paring the list of nominees to the most extraordinary law teachers; and then
** visiting law schools around the country, sitting in on classes, interviewing the nominees, and talking to focus groups of students and alumni; and then publishing what I have found in a book: WHAT THE BEST LAW TEACHERS DO (Harvard University Press, forthcoming 2011).

I have set up a web nomination process (although I will also accept nominations by phone, by e-mail, by regular mail, or in person). To nominate a candidate or learn more about this project, please go to http://washburnlaw.edu/bestlawteachers. Click on the link on the right side of the page to get to the nomination form.

To honor those who have been nominated, I have set up a website on which I will report the name of each nominee, the nominee’s institutional affiliation, and a few comments from the nominator. Here’s a link to that website: http://washburnlaw.edu/bestlawteachers/ … index.php.

I hope to gather as many nominations as possible, so I would appreciate any efforts to forward this message to your colleagues, listservs, students, and alumni. If you are a blogger, please post this information on your blog.

Feel free to e-mail me at michael.schwartz@washburn.edu if you have any questions. The names of nominators and nominees will be withheld upon request.

This blog may be the first of a few reactions to Prof. John Sonsteng’s essay, “A Legal Education Renaissance: A Practical Approach for the Twenty-First Century” (34 William Mitchell Law Review 303-472 (2007)).

The essay’s thesis is that our current method of educating future lawyers is old and wheezy. (It states that it’s older than blue jeans, so perhaps Prof. Sonsteng peeked into one of my dresser drawers.) However, his “Renaissance” primarily recounts the decades-old writings of educational theorists who promoted experiential learning, and collects together already-existing “innovative” law school course and programs.

We should applaud Prof. Sonsteng for encouraging continued curricular reform (or at least a dialogue about the need for curricular reform). But, despite its epic length and paradigm-shifting title, I don’t think anything here is the legal education equivalent of the apple falling on Newton’s head, Madame Curie discovering penecillin in a bit of mold, or Michelangelo painting the Sistine Chapel. I don’t think anything in the essay will prompt law school deans to heed its call for each law school to spend the next 17 years developing and continously revising ots own new curriculum. (And why should each law school have to do this for itself anyway? Not very efficient!)

Enough generalities, here are three specific concerns.

1. In the very first paragraph, the essay states that law schools should promise their students that upon graduation they will be prepared to practice law. If law schools do make that promise, many of their students may indeed practice law immediately upon graduation- as plaintiffs in a breach of contract action. Consider the myriads of ways in which law school graduates use their law degrees. Even those who could be said to be practicing law do very different things. So how can law schools promise that their students will be prepared to “practice law.” And at what level of practice? The essay cites studies showing that lawyers think they improve with experience– so to what level of expertise does the promise pertain? And why should law schools make that promise? Many students come to law school with no desire to practice law; should they be shunted elsewhere? To where– all law schools are to make the same promise? So right off the bat, the essay’s premise troubles me.

2. Even at its general level, the essay has a number of inconsistencies. Here’s one. Law schools should promise students that they will be prepared to practice law when they graduate. Fine, for the sake of argument. But the practice of law is often stressful, right? So why should stress-reduction be an important aspect of law school reform? (p. 339) Maybe law schools should promise to prepare graduates only for low-stress types of law practice?

3. The essay naively accepts the stated benefits of innovatiion at face value. For example, the essay points out that Syracuse offers a General Counsel Transition Course, that among other things teaches “decision-making, problem-solving, management of issues, common sense…” Without in any way criticizing this course, I think it’s fair to wonder whether it accomplishes its goals to such an extent that graduates are prepared to step in as corporate counsel upon graduation.

So after all these years in law teaching, I’m just another incrementalist? Rats!

This week, I will have two postings on teaching-related projects I hope you blog readers will find interesting. Later this week, I will announce a very interesting research project I am starting this month—for which I need your help.

Today, however, I will focus on a new series of law school casebooks to be published by Carolina Academic Press. The casebooks are being designed to implement the contextual and effective learning emphases of CLEA’s BEST PRACTICES IN LEGAL EDUCATION (2007) and of the Carnegie Foundation’s EDUCATING LAWYERS (2007). For example, BEST PRACTICES recommends that law professors set high expectations, “engage the students in active learning,” “give regular and prompt feedback,” “help students improve their self-directed learning skills,” “choose teaching methods that most effectively and efficiently achieve desired outcomes,” “employ multiple methods of instruction,” and, in particular, “use context-based instruction.”

Accordingly, books in this series will:

•    Emphasize active learning;
•    Make it easier for professors to create multiple opportunities for practice and feedback;
•    Use multiple methods of instruction;
•    Focus on the application of concepts in simulated law practice contexts with a particular emphasis on problem-solving;
•    Guide students’ development of self-directed learning strategies; and
•    Be explicit about the structure of the body of law, the text and public policy.

More concretely, here are some common features of the books:

Problem-Solving Focus : Each subject area will be introduced with a practical, law practice problem (presented as a memo from a partner, an e-mail query from a client, an excerpted transcript of a deposition or trial, a complaint that needs to be answered, etc.). The research shows that, when students read cases with such problems in mind, they are more likely to engage with the materials; they read the cases looking to learn things they feel they need to know. This approach is consistent with constructivist learning theory and research, which argues that students learn better in more authentic settings. It also provides context, which all students need so they understand why the things they are learning are valuable to learn.

In addition, at least one chapter in the books will be a “problem-solving” chapter that will focus on helping students weave together what they have learned to analyze more complicated problems a lawyer in each field might encounter.

Summary of Area of Law and Connections to Students’ Prior Knowledge : To provide the background knowledge the research shows expert legal readers need to develop before they read cases and because practicing lawyers develop background knowledge before delving into cases, the texts will provide an overview of the doctrinal area reflected in the cases before presenting the cases.

Inclusion of Learning Objectives and Lesson Overviews and Guidance as to the Big Picture of the Body of Law the Students are Learning : To empower students to control and evaluate their learning, the texts will provide students with learning objectives and overviews of how students will be learning form the text. Studies show that students learn better when they are told what they need to know and be able to do, how what they are learning fits in with what they already have learned, and how they will go about learning the new material.

Emphasis on Active Learning : The texts will engage the students in actively interacting with and thinking about what they are reading. Readers will be prompted to write, question, reflect, and analyze as they read their assignments.

Emphasis on Developing Students’ Self-Regulated Learning Skills : Studies of learning across all educational disciplines strongly suggest that students are more likely to move towards expertise when their instruction facilitates their application of cognitive strategies to learning their course material. The texts will include exercises that ask students to create their own graphic organizers, classroom note-taking guides, self-generated problems, visual concept metaphors, problem-solving methodologies, checklists, etc. First-year texts will provide greater scaffolding for students’ use of these strategies, and upper-division texts, while continuing to emphasize the need for such activities, will place greater responsibility for them on the students.

Use of Multiple Instructional Strategies : The texts and teachers’ manuals will make it easy for users to adopt multiple instructional strategies, including small group work, think-pair-share, free writing, Socratic questioning and discovery sequence instruction.

Careful Sequencing of Cases and Materials to Help Students Build Towards Mastery : The texts will be carefully sequenced with a focus on building students’ skills.

Integrated Opportunities for Practice and Feedback : Practice and feedback are crucial prerequisites to mastery; the texts will provide multiple opportunities for practice and feedback with respect to the core skills on which students will be tested—spotting issues, applying the rules, applying and distinguishing cases and analyzing with policy. Many such problems will be included in the texts and teacher’s manuals. By providing such questions and answers as a resource to professors and students, these texts will encourage professors to integrate such questions on their course webpages and classroom PowerPoint presentations.

You should not be surprised to learn that all of the law professor bloggers for this blog are authoring casebooks for this series: Steve Friedland will be writing a criminal law text; Barbara Glesner-Fines will be writing a professional responsibility text; Gerry Hess will be writing a civil procedure text; Sophie Sparrow and I will be writing a remedies text, and I will be writing a contracts text. I expect the Contracts text will be finished by November 2008.

The faculty of my school invited the director of the undergraduate teaching and learning institute, Peter Felten, to speak with us this past week. He was very helpful and I left the room with new ideas and perspectives. He talked mostly about metacognition and how people learn. He recommended a book that might not make the “Oprah Book Club,” but would have a chance to make its law equivalent. It is accessible not only in the way it is written, but also because it can be read on-line. The book, “How People Learn: Bridging Research and Practice” (The National Academy Press 2000)(M. Suzanne Donovan, John D. Bransford and James W. Pellegrino, Editors), can be found at www.nap.edu/catalog. As Peter noted in his presentation, Chapters 2 (Key Findings) and 3 (Responses from the Education and Policy Communities) are particularly useful.

Peter’s site also has some terrific resources. If interested, go to http://org.elon.edu/catl/resources.html.(Peter has no idea I am promoting him, his site or his material.)

–Steve Friedland

Years ago, an educational consultant came to a law school to help the faculty become better teachers. She sat in the back of several classes over a few days. At the end of the class, she asked each professor, “Who in the room is acting like a lawyer?”

The professor was certainly acting like a lawyer. Students who volunteered or were called on were acting like lawyers, answering questions and making arguments. That left many students not speaking, not participating in the discussion. The fantasy, of course, is that everyone not speaking in class is vicariously participating, answering questions silently, asking follow-up questions to the teacher, and following every piece of the discussion. We know the reality is different. This is what the consultant was getting at. Perhaps seventy-five to eighty percent of the class was not acting like a lawyer.

I try to keep asking myself this question when I am preparing for and teaching class. Who in the room is acting like a lawyer? If it appears that I am talking to much, having that question in the back of my mind prompts me to use an active learning exercise. It also helps me keep my focus – if I am wondering how I can get more students to act like a lawyer in class, I am thinking about what the students are learning, not just about what I am doing and whether I am doing ok.

Who in the room is acting like a lawyer? Perhaps another question might be why aren’t more students acting like lawyers? Is it, as Kerri Sigler suggests, because they have hit the wall and it is no longer fun? Is it the amount of material we ask students to work through? The lack of variety in how we teach? The nature of the students’ day until class? The hard part is coming up with the materials that allow most students to be acting like lawyers. It’s hard to develop the kind of questions and learning exercises that don’t themselves become old, tired and dull. But if we want students to be lawyers, then we should give them as many opportunities as possible to practice those skills.

That is the title of an excellent book by Maryellen Weimer, who is a national leader in teaching, learning, and faculty development in higher education. This little gem of a book (201 pages) delivers the what, why, and how of learner-centered teaching. Weimer’s Learner Centered Teaching arose out of her review of the vast literature on student learning in higher education. She identifies five aspects of learner-centered teaching: (1) balance of power, (2) role of content, (3) role of the teacher, (4) responsibility for learning, and (5) evaluation purpose and processes. In clear, concise language, Weimer explores each of these concepts and provides examples from college classrooms.

Too busy to read a book? Maryellen has you covered. She is the editor of The Teaching Professor, a monthly newsletter on teaching and learning. Most issues are 6-8 pages long and contain 8-12 short articles containing helpful ideas for teachers. Most of the ideas are directly applicable to law teachers. For example, the January 2008 issue contained articles on:
•    Leading effective discussions
•    Dealing with students who over-participate
•    Effects of hurtful comments on student evaluations
•    Student attention spans.

Learner-Centered Teaching is published by Jossey-Bass – www.josseybass.com.
The Teaching Professor is published by Magna Publications – www.magnapubs.com.

(By the way, I met MaryEllen Weimer only one time – more than ten years ago at an Institute for Law School Teaching conference at Gonzaga. She has no idea that I am posting this blog.)

Unlike most law school students, I truly reveled in my 1L year and became, to my own utter shock and amusement, something akin to the class clown. It was nothing unusual to see me stroll in wearing pink pinstriped Chuck Taylors with my best suit while playing the air guitar to some 80’s rock tune on my iPod; nor to hear me crack the class jokes or laugh myself into tears at some unintended double-entendre regarding how the ripeness doctrine seeks to prevent premature adjudication in interstate intercourse. Most notably, however, was the sound of a bouncing racquetball that followed me wherever I went, joyfully announcing my presence to professors and students alike. In short, I was just darn happy to be alive and learning law.

But somewhere in the course of my 2L year (through which I am still struggling), and completely without noticing when or why or how, I realized something had changed. I didn’t wear the Chucks anymore. I didn’t wear the “Pure Genius” tee-shirt (circa WalMart 2007) under my best blazer. I didn’t crack the class jokes. My iPod droned out ballads that wondered where all the good times had gone. And I never, EVER bounced my ball.

What happened??? All these realizations hit me one day quite out of the blue, and I had no answer to “why”. I realized my visits to my favorite faculty member(s), which were once exuberant outpourings of witty bliss, had become sessions at the guidance counselor’s office, filled with heavy sighs and pleas for aspirin to kill a chronic headache. I realized my classes, which once had thrilled me with their sheer intellectual challenges, were now pure drudgery. And I realized I just wasn’t having any fun any more, concurrently wondering what the point was in continuing…

And that’s what law school does to you: it sucks the qi (the life force inherent in all things, for those of you unfamiliar with the brilliance of my past posts) right out of you. And it sucks the qi right out of everyone around you, too, so there’s no one objective left to tell you, “Hey! You there with the ball: BOUNCE IT!”

But perhaps it doesn’t have to. Perhaps law school, like Seuss’s Christmas, could mean “a little bit more.” Perhaps activities like the Evidence Academy Awards from the previous post or our own SBA Gag Awards could become school traditions just as important as the Book Awards, and maybe, if they did, they could lift the gloom a little. Maybe our professors – now largely immune to the perils of law student life – could see our unusual gloom and point it out, assuring us law school is a whole lot better for those who enjoy it. And maybe we, the students, in striving to be those self-regulated learner types (also blogged about earlier) prone to self-assessment, could take a moment or two more than we normally do to ask questions more important than how we could improve our latest memo; but rather to ask whether we’re still the people we started out as in this legal journey and, if not, whether the change has been for the better.

In the meantime, to those of you who own Chuck Taylors (students and professor alike), I say: wear them. To those of you with pithy tee-shirts: by all means, combine them with your best suit jacket. To ye class clowns: some jokes are too good to go un-heckled, so heckle on. To those of you prone to unabashedly playing air guitar to 80’s hair bands in the hallways: rock on. And, most importantly, to those of you who carry racquetballs with you: BOUNCE ON!

Your qi may very well depend on it…

As my previous (and only other) blog entry suggested an exercise for a first class in a Civil Procedure course, it seems fair for my second entry to describe how I typically conclude a course in Evidence.

For some years I have ended courses by bestowing my version of the Academy Awards on deserving students. Using a list of award categories that you can easily find on movie-related websites, I conduct a brief awards ceremony during which I bestow “awards” (if Tootsie Rolls and the like can be considered awards) on a few students whose classroom efforts merit them.

By way of example, here are a few awards I handed out at the end of my Fall 2007 Evidence course:

Student A received an award for Best Public Service Short Feature for starting one class with a riveting promo for a student organization’s upcoming activity.

Student B received an award for Best Foreign Language Short Story for remembering 2 of the 3 elements of res ipsa loquitur.

Student C received an award for Best Animated Feature for waving his arm in the air more often than any other student.

Student D received an award as Best Supporting Actor for reminding me on two occasions during the semester that I had not yet assigned a problem to him to discuss in class.

Students E and F received an award for Best Achievement in Sound Mixing for most in-class whispering.

The categories are of course fluid and they vary from course to course depending on classroom happenings and my ability to remember them. (Keeping track of award-worthy events as they happen is obviously a good idea, but apparently beyond my capacity.)

Last classes are generally poignant events for me. Our little community, artificial and brief as it may be, will never exist again. An awards ceremony is upbeat, and an enjoyable way to review some of what took place while sending almost everyone out of the classroom with a smile on their face.

In my last entry, I blogged about what self-regulated learning is and the evidence that supports my belief that law professors can teach their students to be self-regulated learners. In this entry, I hope to suggest how law professors can integrated self-regulated learning instruction in their regular teaching.

Let me start by noting that the research unquestionably demonstrates that students are much more likely to become expert, self-regulated learners if their instruction in these skills is integrated into their regular coursework. Stand-alone instruction in this area, if it isn’t reinforced in students’ regular courses, doesn’t work. Any guess why not?

So, here are four things law professors can do (I have more, but four seems like a good number for a posting):

(1) Explain to students what self-regulated learning is and have them do some reading about it so the students and the professor have a common lexicon for discussing students’ development of this skill set.

(2) Engage students in activities aimed at each of the three phases. For example, when giving students an assignment, ask them to set a mastery goal for that assignment and then to plan how they will achieve that goal. Similarly, one day in class, mid-discussion, startle the students and then ask them to write about what they were thinking the moment before you startled them. You can then link the fact that many of them were not thinking about the class discussion (sorry, folks, many were but many weren’t) to the idea that, during the implementation phase, students need to be consciously self-monitoring their own comprehension. Along a similar vein, if a student struggles in class to explain a case, you can ask what the student jotted down about that confusion and reinforce students who struggled but knew they didn’t understand (I often say to my students, “Good lawyers know when they don’t know.” Finally, after a practice test, graded paper or exam, you can ask students to reflect on why they did or did not do as well as they would have liked to do and how their results will influence their future learning efforts.

(3) Model reflection in your own work as a teacher. One easy way to do so is to openly acknowledge a mediocre class session and explain your role as the teacher in that outcome and how you will change in response. Another way to do so is to use classroom assessment techniques, such as asking your students (anonymously and in writing) o summarize the key ideas covered in class that day or to identify what has confused them in class so far. If you explicitly respond with an e-mail or short explanation that ties your reflections on their comments to your actions in adding additional instruction, students will see how reflection influences your work as a professional.

(4) Integrate learning strategies instruction in your teaching. Ask students to prepare for class using one or more strategies and discuss their responses in class. For example, have students create a hierarchy chart for one body of law and an outline of another and then reflect on which worked better for them. Another activity I have found to be very useful is to ask students to come to class with paraphrases of doctrine or with examples and non-examples of a concept (e.g., come to class with three statements a court unquestionably characterize as offers and three that are similar in all trivial respects but lack an essential feature of an offer); if students understand material well enough to paraphrase it or generate examples and non-examples, they understand the concept well.