AALS Panel Preview: Teaching Commercial Law in the 21

Kara Bruce, Professor of Law, University of Toledo College of Law

This year’s AALS Annual Meeting features a number of dynamic panels for the commercial law crowd.  Offerings include an update from the joint Uniform Law Commission and American Law Institute task force on potential UCC amendments to address emerging technologies,[1] a heavy-hitting panel considering “the next post-crisis financial reform,”[2] and a works-in-progress series featuring the work of junior consumer law scholars. The Financial Institutions Section will also host an offsite virtual scholarship workshop on the afternoon of January 6.[3]

I am looking forward to a panel co-sponsored by the Sections on Commercial and Consumer Law, Teaching Methods, and Technology, Law, and Legal Education, titled Teaching Commercial Law in the 21st Century.[4]  Perhaps because commercial law subjects are so difficult for students to access, I have found that my commercial law colleagues are particularly thoughtful teachers, and I invariably pick up good ideas from my discussions with them.

This panel, like many good pedagogical exercises, arose from the consideration of educational outcomes.  Two of our panelists, John McGarvey and Bill Henning, are members of the American Law Institute and Uniform Law Commission’s Permanent Editorial Board, which addresses interpretive problems with the UCC and recommends amendments to the Code.  In that capacity, they have observed several recent appellate court decisions that have flubbed application of core commercial law concepts.  These high-profile cases have led them to question how law schools are preparing graduates in the area of commercial law.  And thus, the panel was born.  Carliss Chatman and I were invited to join what we hope will be an engaging Q&A-style conversation.

Given that no professor can cover the entirety of their chosen field in a survey-style course, our panelists will share what skills and competencies they prioritize in their courses.  We will share techniques for integrating developing technologies, racial justice, and practice skills into the commercial law curriculum.  We will also consider how administrative-level decision-making can support our goal of producing graduates with a baseline competency in commercial law.

Teaching commercial law in the best of times often involves dragging students though a dense thicket of statutory text.  These challenges are magnified during a pandemic, when our students (and perhaps we) may face loss, grief, financial instability, tension, and other hardships.  The panel will conclude by discussing strategies for teaching effectively through the COVID-19 crisis.

We hope that readers of the Best Practices Blog will join us for this panel and contribute to the discussion.  If there are topics you’d like the panelists to address, please reach out to me at kara.bruce@utoledo.edu.


[1] Section on Commercial and Consumer Law, Co-Sponsored by Financial Institutions and Consumer Financial Services: Commercial Law in the 21st Century, Tuesday, January 5, at 11:00 a.m. EST.  See Program for more details. 

[2] Section on Financial Institutions and Consumer Financial Services, Co-Sponsored by Commercial and Consumer Law: The Next Post-Crisis Financial Reform, Tuesday, January 5, at 1:15 p.m. EST.  See Program for more details. 

[3] The panel will take place via zoom from 1-5 p.m. EST on January 6.  Please contact Patricia McCoy for log-in details and additional information.

[4] Section on Commercial and Consumer Law, Co-Sponsored by Teaching Methods and Technology, Law and Legal Education: Teaching Commercial Law in the 21st Century, Tuesday, January 5, at 4:15 p.m. EST.  See Program for more details. 

A rose by any other name: Evaluation and Assessment at Cross Purposes

A barrier to developing, improving, or sharing our assessment practices is the confusion surrounding the vocabulary of assessment.  Whenever it occurs or by whatever method, assessment is simply the process of discovering what and how well students have learned and then using that information to improve. One can quickly become mired in a sea of words that feel like jargon, with assumptions that confuse and distort the real meaning of this otherwise familiar practice of all good instructors. Part of the problem is that the language is not our own and so, by its very adoption, reinforces the impression that assessment is an intrusion into our classrooms.  Because these confusions are so destructive to the ability of an institution to move forward with assessment, we must either work to make this vocabulary our own or develop a different vocabulary for the same ideas.

Even though discovering what students have learned in order to improve teaching is a natural part of a good teacher’s practice, law schools are having difficulty in knowing exactly what this talk of assessment means. Faculty frequently mistake outcomes assessment for something more complex, unusual, or even sinister. “Assessment” becomes confused with “evaluation” (as in program or teacher evaluation) or “standardized testing,” and, before long, we are thinking of K-12 school district funding decisions based a “No Child Left Behind” external control of education.

There is a fundamental difference between assessing student learning for the purposes of program or teacher evaluation and assessing student learning for the purposes of improving that learning.  If we are assessing for accountability, we collect data (e.g., pass rates) about students learning outcomes that we do not necessarily control (e.g. bar exams) so that we can report that data to external constituencies (e.g. accreditors). In contrast, if we are assessing for student learning, we observe evidence (e.g., essays, performances) of student learning outcomes that we have designed ourselves so that we can interpret and use that evidence to improve the learning of our students.  When accountability to those outside the learning process is the driving force behind assessment, the temptation may be to assess only those learning outcomes that we know students have mastered and avoid looking for places where learning could be significantly improved.  We might skew our teaching and curricula away from learning outcomes we truly care about to more closely match the learning outcomes we believe outsiders consider important.  Of course that already does happen to some degree.  The influence of ABA standards of accreditation and bar examinations on curricula is so obvious we may not even recognize the degree to which our faculty control of the program of legal education is directed by these learning outcomes and assessment methods.

It is against this backdrop of fear that some law teachers approach the topic of outcomes assessment.  However, resisting assessment out of a concern that others will rob law faculty of their freedom means giving up one of the most powerful tools to protect that freedom. If a faculty can clearly communicate the learning goals they have for their students, and can demonstrate how their program of legal education leads to more students accomplishing those learning goals at higher levels of mastery, that proof of learning can become powerful tool for demonstrating accountability: to the students, the academy, the bar, and the public. That is not to say that assessment for accountability will not be required or should not be undertaken with seriousness of purpose and honesty in method.  Assessment for improving student learning, however, should be just as important, if not more so, so that we can be accountable to ourselves and our students.

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