As the New Year begins and I look back on last semester’s first-year student work, I am struck with how challenging it is to guide students into a shared understanding of law and toward an ability to think critically about and evaluate that understanding. I also find myself actively searching for how to reach students in ways that go beyond helping them pass the bar or find a job. It’s hard enough to get first-year students to start with the same facts, let alone law. This hurdle exists in part because we come from different life experiences such as racial, gender-based, religious, geographic, social, economic, historic, or cultural group-based memberships that help shape how we understand the world[1]. But, beyond viewing the world through different life experiences, sometimes known as bubbles, people now also have their own “personal facts” which are either chosen or assimilated from what they see on social media, television, or are simply made up. And, as our society becomes more rigidly partisan, personal facts become more fixed and more firmly held by our students. Whereas in the context of teaching persuasion in the past, I might have labeled these fixed positions simply as “contrary” or “argumentative” and pushed students to develop skills of logic – case analysis, statutory interpretation, synthesis, and advocacy, something more is needed now. This era of personal facts adds another layer of difficulty to legal education beyond the lack of academic preparedness students bring to law school.[2]
Teaching law and its value in the context of our rule of law society[3] is itself fundamentally challenging, but that function is complicated by personal facts and is made even more difficult in schools that shift their focus to “student-centeredness”[4] which winds up elevating students’ opinions and then further validating their personal facts. The rise of student-centeredness goals in law schools reinforces a consumer-preference society and also enables students’ – later lawyers’ – ability to stray from the rule of law.[5] I take for granted for the moment here, that a rule of law society in which power is constrained by rules of law and where those rules have value beyond individual outcome preferences, is preferable to other paradigms[6]. To focus students on the law outside of themselves, professors in the past might have said “judges don’t care what ‘you’ think; they care about the law.” Today, though, if one of us tells a student that judges or we “don’t care” what they think, a student is all too likely to complain, choosing to ascribe some deep personal weight to a fictional lack of caring and then have their complaint heard and responded to, thus missing the lesson of law outside of themselves.[7] And – yes, I can and do find nicer ways of encouraging students to put aside their own bias, but at some point I am the one spending energy on figuring out how to get across a point in a manner that doesn’t hurt, insult, or otherwise upset a student rather than the student spending time on shifting their perspective and learning.
Student personal perspective today is particularly strong, not always shared, intensely personal, supported by personal facts, and often indulged. My self-aware upper-level students from the past would have recognized a distinction between personal facts and objective facts and easily distinguished the two. Personal facts are facts as the student wants them to be or that the student can find – usually on the Internet – to support their idea of what “should” be.[8] “Objective” facts for purposes of this contrast are facts that exist independently of whether a student is gathering them to make an argument and are usually found in clients’ words, documents, or in assignment or exam hypotheticals. Too much student-centeredness risks not disrupting a fixed mindset or the partisanship of personal facts.
So, as I prepare for next semester, I find myself wishing that, in addition to helping students learn rules of law, I could do more to get my students temporarily out of their own heads – individually and socially. Each semester, I contemplate the delicate balance between having students learn the law and helping them develop tools to think about the law’s role and how to move it toward making a better society. Lately, that balance has been upset further with personal facts. By “get out of their own heads,” I don’t mean students should develop dissociative disorder; nor do I mean students should permanently ignore their own thoughts. While I think that developing an adaptable mindset benefits students’ learning,[9] I am really concerned about the tendency students have to draw conclusions based on their own interpretation of a given scenario and their personal feeling about who should “win” and how inconsistent such a perspective is with a lawyer’s obligation to participate in and protect a system of justice for the public. I regularly now find myself trying to figure out how to encourage students to temporarily suspend personal facts and personal results[10] as their learning focus, to consider (not argue) what may make a better society, and to develop some empathy.
Since each student and student cohort comes from a different place – a different perspective – I am often off balance and searching for ideas to realign for educating future lawyers. Three strands have momentarily come together for me, though not exactly harmoniously – the allure of “expertise” as exemplified not only in some recent law school pedagogy[11] but generally in such well-received books as Anders Ericsson and Robert Pool’s Peak: Secrets from the New Science of Expertise (2016); words given after the passing of a president, and the reminder by a colleague of James Baldwin’s “A Talk to Teachers.” I think in re-assessing legal education, we might critically draw on what all of these have to offer us.
As I generally understand it, the idea of expert learning is that by developing “mental representations” of what is needed to think clearly about something, getting outside of one’s comfort zone, and by deliberately practicing (trying, receiving feedback, thinking about what one did, and trying again only differently) one can develop new and significantly better skills.[12] Where there are well-defined standards of performance, expert learning of skills makes sense. So, for example, extending the skill of memorization through expert learning makes sense in the context of law school – we want students to memorize the rules of law. Deliberative practice in learning rules is also attractive because it can be taught by that which is arguably familiar to us: “breaking learning down into a series well-specified skills, designing exercises to teach each of these skills in the correct order, and using feedback to monitor progress.”[13] A key component of expert learning, too, is its emphasis on adaptability[14]– the student requirements of willingness to try, make mistakes, get feedback, and try again differently. But note – the skills developed through mental representations and deliberate practice work best when achievement can be measured by objective assessment. Ericcson provides several examples of those situations amenable to this expert learning including chess masters who are able to develop mental representations of different chunks of a game, recall, and use those chunks; athletes; physicists; surgeons, and those who develop perfect pitch in music.[15] In these examples, it is easy to see how memorizing rules, outlining, IRAC patterning, and trial skills are all amenable to expert learning.
In my attempt at balancing, though, I have found expert learning falls short of what is needed for legal education because of student perspective in two ways – first in students’ learning the law outside themselves at all and second in students’ learning to evaluate the law. Generally, deliberative learning requires an eagerness or at least a willingness to be wrong and receive feedback from an expert – something that Ruth Vance and others suggest may not be first on the list of today’s law students.[16] Vance asserts today’s law students’ education has been compromised by a focus on testing. She also observes though, that despite arguably weaker academic preparation for law school, students nevertheless share the following traits: high self-esteem, confidence, a belief that one is special, and a sense of entitlement[17] fully consistent with personal facts. Thus, a first challenge to expert learning theory is the inability or unwillingness of students to “get out of their own heads” in the sense that they may be overconfident.[18] This challenge is compounded when overconfidence occurs at the same time as when people are swayed by factors other than education, experience, or seniority, such as friendliness, and attractiveness, and conscious or unconscious bias.[19] Such judging[20] of another’s competence or expertise allows students to reject expert feedback and preserve their own self-evaluation.[21]
Even where the skills to be learned are amenable to deliberative learning and students can get outside of their own heads and accept expert feedback, the evaluative or critical aspect of learning law on the other hand is not easily amenable to expert learning techniques. Where skills are not yet well-articulated or where assessment is based on judgment rather than or in addition to some objective criteria, such deliberative learning is more difficult.
My colleague’s reminder of Mr. Baldwin’s “A Talk to Teachers” prompted me to consider how developing critical judgment, because it is derived from experience, specifically calls for something beyond deliberative learning. Mr. Baldwin’s words, looking at unshared group history and the dissonance between experience and what is taught, point to how difficult it continues to be to help students develop that judgment. Baldwin states, “The paradox of education is precisely this – that as one begins to become conscious one begins to examine the society in which he is being educated. The purpose of education, finally, is to create in a person the ability to look at the world for himself, to make his own decisions. … But no society is really anxious to have that kind of person around. What societies really, ideally, want is a citizenry which will simply obey the rules of society.”[22] We are, no doubt in divisive times, but I think the growing tendency of people to be “judgy,[23]” where people believe only or primarily in their own personal reality, adds a third layer of separation of students from being full participants in our justice system even beyond the systemic concerns raised by Baldwin and others. But, accepting Baldwin’s premise or even just accepting that our students need to get out of their own heads in order to fulfill their obligations as lawyers in our society, means we need to teach critical thinking in a way that prompts awareness of others, and that integrates critical inward evaluation with outward assessment. And, having personal facts, fake news, and confirmation bias become normalized in law school discourse makes glaringly obvious the existence of such entrenched positions, but may also provide an opportunity for change. This moment also affords a chance for us to check our own preconceptions.
As law faculty, of course we need to be teaching our students to think critically so they can participate in addressing social issues, but critical thinking in the sense of what officers of our legal system must do is not an easily objectifiable skill.[24] Critical thinking is generally considered a compilation of the skills of conceptualizing, analyzing, synthesizing, applying, and evaluating information. As such, it does at first sound as though it is a skill learned by deliberative practice because those sub-skills are capable of assessment. Moreover, the aspect of deliberative learning that calls for students to go outside their comfort zone, if they will, is important and useful here to critical thinking. However, what makes critical thinking ultimately so ill-suited yet for deliberative learning is that it inevitably requires one to consider ideas through experience, and we all come from different perspectives; we do not share fundamental experiences, and, our experiences may set us toward conflicting goals. Moreover, the present contracting of perspective to personal facts narrows thinking while widening our differences. Mr. Baldwin’s admonition to examine society should take on greater urgency today because not only are there bubble-differences between us, we have strengthening sub-bubbles of personal facts. Depending on the accuracy of Vance and others’ assessments of law students’ egocentrism, however, little is available to motivate those students[25] to put aside their reluctance to fail[26]or sense of entitlement in order to get outside of their own heads to truly examine society. That our students are adults further increases the challenge. Studies show that the human brain is much more flexible before the age of six than it is in an adult,[27]though the brain remains somewhat malleable. And, while many have suggested metacognition, self-monitoring of one’s own cognition, as a means of progressing toward both being able to accept feedback and to empathize,[28] day-to-day interactions may leave faculty resigned to a conclusion that students do not see the value in change or may even “double down” on their position. This “double down” can easily mimic deliberative learning – practice until having ingrained some pattern or skill – especially where so many are already inclined toward personal facts and entitlement.
Given current public partisanship and the trend of law schools to be consumer driven, there is also a concern for a lack of will to really challenge student self-perception when to do so may not be considered student-centered and/or is inconsistent with the consumer-oriented positioning of one’s school[29]. It seems we now spend plenty of time and effort on “learning strategies” and “assessments” that are designed to help students “learn” the law and prepare students for that single assessment – the bar exam. I am, however, concerned we will have helped students deliberatively learn strategies and meet objectives that are capable of easy assessment, but will not have met the broader challenge of teaching critical thinking with the purpose of improving society, something beyond passing the bar or getting a job.
As I reflect in preparation for next semester, I have seen that in memorizing the rules and laying out IRAC or CREAC or whatever the requested formula, students have improved over the past several years. I have found that when my students have practiced taking multiple choice questions over the semester, are given the answers with explanations, and repeat the process, they are more successful on multiple choice exam questions than in years past when I did not have them repeat practice as much.[30] On the other hand, I have yet to see an equal growth in critical thinking. In these times, true critical thinking seems much more important than ever. Because of the extreme partisan positioning of the times, strong student egocentrism, and the consumer focus of law schools, we as faculty have to do more to cultivate empathy, a willingness to be wrong, a willingness to challenge what others say are “facts” and to pierce the bubbles with which people surround themselves, so they can see a much, much larger picture. Finding the will to participate in and teach critical thinking that is not necessarily designed to pass the bar exam seems challenging.
Which brings me to my third thread – the passing of a president and the words spoken to honor that service. These words referred to a leader who “believed in causes larger than” self; one who made “the lives of nations freer, better, warmer, and nobler,’ and who believed that “much is expected to whom much is given.”[31] Words such as these are aspirational for how we may wish to be remembered and may help re-clarify goals. As legal education over the past twenty years shifted its goals to be more consistent with a business model, it may have helped students to be more law-firm ready and useful to employers, but, to me, times seem to call for something greater than job preparation – more in line with our responsibility to the broader justice system. We need to not accept the status quo. We need to get out of our own heads and to help our students to get out of theirs and work for causes larger than themselves. And I’ll be honest – I welcome all comers with ideas for how we can do this.
[1] Some have labeled these perspectives as “bubbles.” Here, most of the discussion in this entry does not focus on the different life starting points that are racial, religious, geographic, social, economic, or gender based but is meant to focus instead on what I consider to be the self-constructed world of individuals that seems to be gaining a more prominent place in the “learning” students bring to law school.
[2] See e.g., Susan Stuart & Ruth Vance, Bringing A Knife to the Gunfight: The Academically Underprepared Law Student & Legal Education Reform, 48 Val. U.L. Rev. 41, 57-59 (2013). The authors provide extensive citation to studies demonstrating the under-preparedness of students for law school.
[3] Defining “rule of law,” has been the subject of much literature over time – from the Roman era to today and by a range of authors from academicians to those in the military. For a quick survey of that literature, see Arthur H. Garrison, The Traditions and History of the Meaning of the Rule of Law, 12 Geo. J. L. Pub. Pol’y 565 (2014).
[4] The rise of “student-centeredness” language appears to have begun somewhere in the early 2000’s. Just some of the law schools that have declared a student-centered institution or atmosphere include Syracuse, Capital, Southern Illinois University School of Law, Gonzaga, Cleveland-Marshall, Albany Law School, Loyola Marymount, Richmond Law School, Southwestern, Rutgers, Lincoln Memorial, and Washington & Lee. (google search “student-centeredness” and “law school” December 2018)
[5] As first articulated by such innovators as Tony Amsterdam and at our school in the creation of programs designed to contextualize law for students, and as built by learning theorists such as Gerald Hess and others from Gonzaga, student-centered learning had been meant to encourage law faculty to vary teaching style. Where teaching style was primarily teacher-in-control, student-centered learning encouraged greater interaction with the material and with each other. The value of interactive-learning is real; the way the term “student-centered” has been hijacked is likewise real.
[6] I recognize those rules are not inviolable; a discussion of whether and how to undergo a systemic change is well beyond the scope of this entry.
[7] There is a growing body of literature on how student evaluations tend to be biased toward what students like, biased against groups, and mainly a popularity contest – failure of which alone may result in loss of position or lack of an offer.
[8] Other synonymous terms include confirmation or opinion bias. Having personal facts supports one’s ability to be “judgy.” See infra n.20.
[9] See e.g., Sue Schapcott, Sarah Davis, and Lane Hanson, “The Jury Is In: Law Schools Foster Students’ Fixed Mindsets” 42 Law & Psychol. Rev. 1 (2018) addressing the connection between mindset toward intelligence and professional success. There, the authors describe Carol Dweck’s “mindset” theory as “one’s perception of the ability to change a trait, characteristic, or skill.” The authors also summarize research on how students’ mindsets – either growth or fixed – lead to the students’ approach to learning. For example, students with fixed mindsets, the authors state “are motivated by a need to demonstrate their intelligence. … are more likely to engage in [easy] tasks, … attribute failure to the stupidity of others.” (internal citations omitted).
[10] See e.g., Ruth Vance and Susan Stuart, Of Moby Dick and Tartar Sauce: The Academically Underprepared Law Student and the Curse of Overconfidence,” 53 Duq. L. Rev. 133 (2014). This article focuses on addressing the changed preparedness of students arising from inadequacies in their education from being taught to pass standardized tests so that schools receive funding under the “No Child Left Behind Act” 20 U.S.C. 6301 (2006) to their habit of multi-tasking, and shortened attention spans. More importantly for my purposes here, the article discusses the student mind-set that has emphasized the student as consumer who is competent enough to determine whether the student has been taught well and the consequences thereof. Id. at 143 (citing Catherine J. Wasson & Barbara J. Tyler, How Metacognitive Deficiencies of Law Students Lead to Biased Ratings of Law Professors, 28 Touro L. Rev. 1305, 1316 (2012).
[11] For example, Michael Hunter Schwartz has done work on expert learning. Michael Hunter Schwartz, Expert Learning for Law School, (3d ed. 2018).
[12] Anders Ericcson and Robert Pool, Peal: Secrets from the New Science of Expertise p. 253-254 (2016). Expert learning theory is relatively new having been developed from the 1980-1990’s.
[13] Ericsson, supra n. 12 at p. 224.
[14] Adaptability seems to be synonymous with “growth mindset” as contrasted with “fixed mindset.”
[15] An interesting note is that musicians who have practiced since before they were six years old have more developed corpus callosum than those who haven’t practiced since that age. That part of the brain is responsible for integrating language and for lateralizing language to the left side of the brain which correlates with higher IQ.
[16] See generally Vance, supra n. 10.
[17] Vance, supra n.10 at 134-135 (internal citations omitted).
[18] Of concern is an even more deeply held personal belief and reluctance to rely on experts that is appearing out concern for “fake news” which is that one can’t trust anything. This range of skepticism or perspective narrowing is a whole other topic.
[19] Vance, supra n.10.
[20] The term “judgy” has its own Urban Dictionary meaning: “As adjective describing a person or their general attitude when they profoundly believe their own reality is the only one, or primary one, in existence, resulting in constant judgment of others (as opposed to ‘being judgmental’ where one consciously draws a judgment on a particular subject.” https://www.urbandictionary.com/define.php?term=Judgy .
[21] Much literature has been devoted to how student bias toward or against a professor interferes with their ability to learn from that professor.
[22] From James Baldwin “A Talk to Teachers” 1963. Unquestionably, many are deeply invested in the status quo.
[23] See n.22.
[24] It goes without saying, though it is said in the Model Rules Preamble, that lawyers have a special obligation to the legal system where they are officers and to society in general.
[25] Or for that matter, faculty and administrative colleagues.
[26] This has been the experience of those who grew up when everyone got a trophy for participating. This is not to say those children didn’t sense the flaws in that system, but is merely to note that this participation reward system has been prevalent for a couple of decades and many have written on its effect on motivation. See, e.g., Vance, supra, n. 10.
[27] Ericsson, supra n. 12 at loc. 134.
[28] Barbara Kalinowski, “Logic Ab Initio: A Functional Approach to Improve Law Students’ Critical Thinking Skills,” 221 Legal Writing: J. Legal Writing Inst. 109 (2018); Patti Alleva, Jennifer A. Gundlach, “Learning Intentionally and the Metacognitive Task,” 65 J. Legal Educ. 710 (2016).
[29] And, of course, when to do so would call for drastic structural change. See e.g, Nicole Truesdell, “Front Line in the Fight Against White Supremacy,” Inside Higher Ed December 22, 2017. https://www.insidehighered.com/advice/2017/12/22/faculty-trained-speak-about-systems-oppression-should-not-be-required-be-neutral .
[30] I have used LawClass Feedback for three semesters now and have seen improvement, but correlation is not causation and I have far too small a sample or repetitions to draw conclusions.
[31] Jon Meacham’s eulogy of George H.W. Bush https://www.c-span.org/video/?c4764801/jon-meacham-delivers-eulogy-president-george-hw-bush-state-funeral .
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Best Practices for Legal Education 