The “Dark Side” of Being a Lawyer

Bibliography on Education Reform, courtesy of Patricia Salkin

Fall is here and in addition to the start of the academic semester, the NYSBA Committee on Legal Education and Admission to the Bar is in high gear.  So much has been written about changes in legal education in a short period of time, it can be difficult to keep track of the books, articles, columns, posts, etc. Thanks to Touro Law librarian Laura Ross, a working bibliography on legal education reform has now been posted to SSRN for all to access. This is an ongoing work-in-progress, and Laura welcomes emails with suggestions for additions to the list.  Entries in the bibliography provide great starting points for discussion among faculty and law school constituents about the present but more important, the future, for individual law schools.  We hope you will use this to inform your teaching, scholarship and service to the school and community moving forward.  Those of us fortunate to be a part of the Academy have a wonderful opportunity at this moment in time to respond to a rapidly changing legal profession by making deliberate and informed reforms in the way we educate the next generation of lawyers.

Consider Pre-testing

The recently passed ABA accreditation standard 302 requires schools to report student learning outcomes. A learning outcome has been defined as something a student can do now that she could not do before [or that she can do better than she did before].

One classic way to measure learning is to give pre-tests. When the class begins, students are tested on  key aspects of learning the professor hopes the students will achieve  during the semester. Pre-test results can be compared to end-of-course results to see if, in fact, students’ learning improved. They also can be used by professors to help identify students’ strengths and weaknesses at the outset and to adjust our teaching accordingly. UNM Dean David Herring’s work on measuring cross-case reasoning is an excellent example of how professors can use pre/post tests to measure learning and improve teaching.

While pre-tests may provide learning outcome information, the more intriguing aspect of pre-tests is that they may, themselves, be a learning tool. A recent NY Times article reports studies indicating that pre-tests actually improve final exam performance.

The studies’ authors have multiple theories about why pre-tests improve learning. First, they hypothesize that pre-tests help students identify how they will have to think about and synthesize the material. Students begin the course with that information in hand and it shapes their studying.

Another theory is that we suffer from “fluency illusion” – we believe that we truly grasp the material because we have read and highlighted. A pre-test exposes weaknesses in both knowledge and application.

Additionally, there are biological explanations for why pre-tests improve student learning. The brain works via developing networks of associations. Pre-testing primes the brain to develop associations for the material in the pre-test so that when it is later covered in class, the brain can more easily link the new information to existing information.

In the studies presented in the NY Times article, the pre-tests were particularly helpful with multiple choice test performance, and a key to improved performance was providing students with the correct information shortly after they had taken the pre-tests

The value of pretests may depend upon the type of course and the skills and knowledge tested. Yet the idea has intriguing possibilities. Would a pre-test before we covered hearsay improve student learning of that difficult topic? Would a course pre-test on reading/interpreting statutes result in better student performance of this skill at the end of the semester? Would providing 1Ls with a mock exam and an annotated model answer shortly after they began law school improve overall first year exam performance?

Data from other disciplines suggests pre-testing primes students to learn the material and it provides teachers with data we can use to see if the learning occurred. The value of pre-tests in legal education is an idea that certainly merits further study.

Albany Law Dean Penny Andrews sent this our way for posting:

Ready to Learn, Beyond the Black Letter of the Law | By: Ray Brescia

In his recent op-ed for the National Law Journal, Ray Brescia discusses the need for upper-level classes in law school that afford students a chance to learn the art of the legal profession, and not just the tools of the trade.  Read: As School Year Begins, Think Outside the Tort.

Top Ten Things Law Professors Can Do This Year to Learn About EdTech

Let’s face it, the role that technology can play in the practice of law is becoming more evident – with predictive coding, eDiscovery, and companies like LexMachina that use legal analytics to, among other things, predict the outcome of patent litigation.  But many in the legal academy still cannot conceive of how technology can change legal education.  If you are in that camp or know others who are, let me suggest that we do not dismiss the potential for change in legal education without knowing more about the emerging field of edtech and the forces behind it.  Want to learn more?  Here are ten things you can do this year that might change your thinking about the role of technology in the future of legal education.  The suggestions come from my article, which has other suggestions as well.

1.  Catch up on some important reading.  Read David Thomson, Law School 2.0: Legal Education for the Digital Age (2009).  Also, read the work of Bill Henderson, including A Blueprint for Change, 40 Pepperdine L. Rev. 461 (2013) and Andrew P. Morriss & William D. Henderson, Measuring Outcomes: Post-Graduation Measures of Success in the U.S. News & World Report Law School Rankings, 83 Indiana L. J. 791 (2008). Read David Barnhizer’s article, Redesigning the American Law School, 2010 Mich. St. L. Rev. 249 (2010). 

2.  Read, too, assessments about how technology has impacted and will continue to impact higher education generally, works such as Disrupting College: How Disruptive Innovation Can Deliver Quality and Affordability to Postsecondary Education, and The Department of Education’s Meta-Analysis and Review of Online Learning Studies

3.  Learn about the millennial generation who are “born digital” and how their more networked and connected lives affect the way they approach learning.  A great book on this topic is by John Palfrey and Urs Gasser of Harvard Law’s Beckman Center on Internet and Society, Born Digital: Understanding the First Generation of Digital Natives (2008).  Think about the implications of the fact that between 2000 and 2002, the largest group of first time internet users were between two and five years old, placing the oldest members of this group in college now – and in law school soon.  Begin to understand how the emerging “participatory culture” is changing what one needs to learn to be fully prepared to function in the twenty-first century.  You can do this by reading Henry Jenkins, Confronting the Challenges of Participatory Culture: Media Education for the 21st Century (MacArthur Foundation)

4.  Begin to explore the potential for law schools to employ teaching methods that use technology to a greatly enhanced degree.  For example, read about flipping the classroom, a teaching methodology that blends online lectures (which students view at their own pace as homework) with in-class instruction, as it is used in K-12 education, Jonathan Bergmann & Aaron Sams, Flip Your Classroom: Reach Every Student in Every Class Every Day (ISTE/ASCD, 2012), or watch these videos on flipped learning in legal education.  By migrating lectures to the web, flipped learning can free face-to-face classtime for active learning, including Socratic dialogues, drafting exercises, simulations and role plays.  

5.  Investigate innovations in adaptive learning, a technique using computer software first to assess what a student knows and then to adapt the content taught to the knowledge level of the student, thus providing a more personalized learning experience for each individual.  Computer-based adaptive learning is already being used by the Kaplan test preparation company for college students planning to take the LSAT and GMAT; by Khan Academy for younger students; and by many companies, such as Knewton, for a wide range of users.  

6.  Consider the impact that gaming can have on education.  Follow the work of Jeannette Eicks (Vermont) and Stephanie Kimbro (Stanford), both of whom are working on projects that involve gaming and law.  Read James Gee, What Video Games Have to Teach Us About Learning and Literacy (2003); James Gee, Good Video Games and Good Learning, at  Educational games are available for a variety of topics, including civics, see (a game-based website started for former Supreme Court Justice, Sandra Day O’Connor); climate change, see; national conflicts, see; and even algebra, see

7.  Monitor the impact that recent decisions by law schools to develop online programs for non-JD degrees has on programs at other schools, such as the decision by graduate tax law programs at, among others, Alabama, Georgetown, NYU, Villanova, and Boston University to offer their programs online. Read Distance Learning in Legal Education:  A Summary of Delivery Models, Regulatory issues and Recommended Practices. Attend a meeting of the Distance Learning in Legal Education Working Group, organized by Vermont Law School professors Rebecca Purdom and Oliver Goodenough.  The group meets three times a year, once in the fall (which is in a few weeks at William Mitchell School of Law), once during the AALS Annual Meeting, and a third time in the spring.  

8.  Monitor the effectiveness and reaction of law graduates who take online bar preparation courses such as Themis. 

9.  Explore some of the new apps being developed for iPads and Androids to teach legal concepts.  Law Stack is an Apple app for legal research loaded with various federal statutes.  Law School Dojo, by Stanford Law’s Margaret Hagan, is an app with quizzes on legal concepts for a range of subject matters, including contracts, torts, civil procedure and international law.

10.  Register for and attend the 2015 AALS Clinical Conference, May 4-7 in beautiful Rancho Mirage, CA.  The theme of the conference is the “New Normal.” One of the three tracks for the conference is devoted to the future in the “new normal,” both for the practice of law and for legal education. As to law practice, we hope to address how professors can understand the rapid and profound technological change that could well remake law practice and how those changes can advance our work for social justice. We want to explore how changes in service delivery and structure of law practices can and should impact our teaching. And we hope to address how professors can better use technological advances and insights from learning sciences in their teaching. 

The internet, the driver of all the changes and developments noted above, is a technology and a tool that, for the reach and extent of its often disruptive and its often liberating effects, can be compared only with the printing press.  When writing of Gutenberg’s invention, Elizabeth Eisenstein, a careful and meticulous historian of immense reputation, wrote (favorably quoting Renaissance scholar Myron Gilmore) in her two-volume magnum opus, The Printing Press as an Agent of Change, that “’[i]t opened new horizons in education and in the communication of ideas. Its effects were sooner or later felt in every department of human activity.’” As I explain in my recent article, I strongly believe that “[s]o too it is, or sooner or later shall be, with the internet.”

Are there things I am missing?  Add them in the comments below.

Legal Education and Professional Identity, by Steve Friedland

I participated in a discussion group about teaching the formation of professional identity at the Southeastern Association of Law Schools (SEALS) conference in early August, led by Professors Ben Madison of Regent University School of Law and David Thomson of the University of Denver Sturm College of Law.  It was clear there was lots of passion in the room to engage students in the formation of professional identity directly and throughout law school.  The real question was how to do it.  There were some very good ideas of how to do it within the parameters of traditional classes, such as Professional Ethics, and how to do it outside of classes by affecting the culture of a school and its environments.

One of the main problems in this area, it seems to me, is that the notion of ‘professionalism’ is often a foreign concept to students; after all, until someone becomes a lawyer, how will they understand what this means?  This is where learning science comes into play, specifically experiential education, the kind advocated by David Kolb in his famous experiential learning cycle way back in 1984.  Kolb suggested that experience should be used as a learning tool in stages. An experience serves as the first stage, and is then followed by reflection, abstraction and theorization, and finally, the transfer of knowledge to new problems or questions.

This learning cycle fits into real life quite well.  If one is learning to drive, for example, then it is important to progress from the classroom to the passenger seat to the driver’s seat.  Of course, the ‘driver’s seat’ need not be attached to a two thousand pounds of nuts, bolts and engine, but can at first be behind the wheel of a simulator.  Simulation and exercises in legal education also can serve as a platform for the formation of professional identity.  For example, a simulated oral argument about a case could involve two teams of students asked to argue different positions.  This division into groups requires collaborative work and presents an opportunity to explore how professionals participate and communicate on teams.

Students also could be given non-legal exercises that raise professional identity issues.  If students were walking home from school one night and see a $20 bill sticking out of an ATM machine with no one else around, would they take it?  Why or why not?  Does it matter whether the students were now working in a courthouse where the ATM is located or working as a lawyer for the bank that owns the ATM?

From a different perspective, what if the students were mountain climbing in the Andes Mountains and were roped up with the person closest to them in the entire world at 20,000 feet. In this hypo, the person roped to the student slips and falls off of the mountain.  The only way the student can save him or herself is to cut the rope, leading to a long fall for person #2.  Would the student cut the rope?  This question raises professional ethics of a different kind — what is the mountain climber code in this situation?  Also, what factors would the student consider in making such a decision? (A somewhat similar situation actually occurred in real life with two mountain climbers high in the Andes.  The mountain climber on the mountain cut the rope and the other climber, dangling below, fell, but survived.  I would have loved to have eavesdropped on their conversation at the bottom of the mountain. See Touching the Void (2003), based on a 1988 book by Joe Simpson of the same name.)

All told, the formation of professional identity can help students connect with and maintain the values that might have landed them in law school in the first place.  And it could weave into the understanding of law the importance of the lawyer’s role within the system – and how service to others might require a different application of values than service to oneself.


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