Fighting Urban Blight, One Semester at a Time

A really cool collaborative and innovative course and student project!

the Future of Change

This past semester, as part of the Albany Law class “Law and Social Innovation: Creative Problem Solving,” law students and faculty and students from the University at Albany’s Rockefeller College of Public Affairs & Policy and the U Albany Center for Technology in Government, teamed up to work with the land banks in the capital region of New York State to develop strategies and programs to address their prospects for long-term sustainability.  Read a description of the class and the class project here.  Read the students’ final report for the class here.  And read what I have written about the class in the past — the approach and methodology — here.

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“Mixing It Up: Interweaving Lecture/Lesson and Retrieval Practice for Better Test Results.”

A colleague recently shared a blog entry given to secondary school students on better studying.  The blog encouraged students to engage with the material and practice retrieval as part of learning[i] – not quite labeling this active learning.   That entry aimed at high-schoolers is grounded in the idea, supported by studies, that most students in high school and college spend most of their “study” time re-reading and re-highlighting material.[ii] The re-reading and highlighting give students the “illusion” of having mastered the material”[iii]  instead of better enabling students to actually learn material.  This entry is a brief pitch for still more varied and active studying through retrieval practice and some optimism that some secondary schools are encouraging more practice learning of their students thereby better equipping them to be our students.

Retrieval practice or “testing effect” is a positive learning effect that occurs when students are tested or required to retrieve information while they are studying.[iv]  Accepting for this entry’s purpose study conclusions that retrieval practice aides learning, when and maybe how to engage in that retrieval practice seem apt questions.

A recent study by Weinstein, Nunes, and Karpicke, “On the Placement of Practice Questions During Study,” (2016) [v] assessed whether practicing retrieval interspersed within a lesson or unit or waiting until the end of a lesson or unit to practice retrieval led to the greatest learning.  The study also compared those students who had practiced some retrieval questions with students who did not have any retrieval practice questions but merely re-studied material in both online and live-class settings.  The study used three experiments to assess student memory during the study phase in quizzes and then after a delay in a test[vi].

The results were interesting and varied depending whether and when students had practice questions and then were tested. The results seemed also to vary depending on whether the material was presented online so students could interact with the material or was presented in a classroom, although the authors did not discuss this distinction[vii].  Students given practice questions interspersed in a lesson scored higher on an immediate post-lesson quiz than students given practice questions at the end of the lesson but right before the quiz. The authors attribute this difference to the closeness of the questions to the material presented, among other things.[viii]  For all three experiments, student scores on a test given after a delay of at least a week were roughly the same, though, regardless of whether students had practice questions during or at the end of a lecture.  The time delay before testing seemed to level out any interspersed-question-advantage over the short term so that groups who had received practice questions during a lecture and those who had practiced at the end of a lesson had similar delayed test scores.  Good news for mixing-up when to give practice questions.

But, in all three experiments, students who received some practice questions – whether during a lecture or at the end of a lesson – performed significantly better on a delayed test than did students who had no practice questions, but simply “re-studied” material.  Students who had no practice questions where they were called upon to practice retrieval and apply information, but merely re-studied their material, scored lowest on delayed tests.[ix]

This consistency – students performing better short-term with questions interspersed during lectures and long-term similarly with practice questions either interspersed or at the end –  led the authors to conclude that practice questions aided in student learning and left for future study whether practice questions interspersed during a lecture coupled with practice questions also given at the end might have the greatest benefit on delayed tests.[x]

The Weinstein study results and the suggestions for improving retention and possibly learning are interesting not only because they posit study tools that are demonstrably more effective than re-reading or highlighting alone, but because those results demonstrate the fluidity in the cognitive domain taxonomy upon which many base teaching or learning exercises. (Bloom’s or Bloom’s, Anderson’s, & Krathwohl’s cognitive taxonomy). Briefly, the taxonomy is a hierarchical[xi] classification or ordering of cognitive skills. The cognitive domain taxonomy is most often, though not always, visualized through pyramids with knowledge (Bloom’s) or remembering (Anderson-Krathwohl) at the base.  That pyramid, though, is not exactly representative of learning – at least on the college level, as these referenced studies seem to reflect.  What can also be inferred from the studies on retrieval practice, is that learning occurs not based on having the knowledge or remembering alone, but happens more effectively when the other, maybe even all other, classifications (create, evaluate, analyze, apply, understand) are engaged and interwoven in students’ active practice.  Put a different way:  students who rely on flash-cards or outlines alone will likely be less successful on tests than those who are more engaged in their learning.

As an example of interwoven practice, the handout, “A Brief Guide” mentioned above, set out five ways of studying the authors, based on studies, suggest would be more effective ways of learning than repeating or re-reading.  Those study tools include retrieval practice, questions & answers, concrete examples, spaced practice, and interleaving. Although the guide is aimed at secondary school-level students, the tools will sound familiar to those studying teaching and learning theory at undergraduate and graduate levels. Not surprisingly, the guide suggests that students use all the learning tools and not just re-study.

The first tool, retrieval practice, (remembering) is defined more narrowly in the guide than in the studies.  That first tool encourages students to try to recall what they have learned from a chapter by, among other things, creating flashcards.  The key to this retrieval practice, of course, is that the flash card creator be the student and not someone else, because the preparation of the cards is the stronger retrieval practice, not the repetition or recitation from the card.

The second and third tools, questions & answers and creating concrete examples for abstract concepts, encourage students to ask questions about material – not mere recall questions here, but questions about how and why and then relate those to life. (evaluate, analyze, apply, understand) The guide encourages students to self-study which would require students to practice all this questioning on their own and may or may not allow for verification.  The Weinstein study, though, demonstrates the efficacy of including those same kinds of questions and hypotheticals both during a class and after class, and in any event, demonstrates the importance of some practice questions whether during or after class.[xii]

The last two study tools involve spacing practice and mixing it up.  Spacing practice means to do some studying every day rather than cram before a test – something most law students seem to learn eventually even if through trial and error.  Mixing-it-up or “interleaving” means students are to challenge their thinking by making retrieval more difficult through practicing different topics during a given study period.

So, what can we gain from these studies and the guide? It seems the old cliché, “practice makes perfect” or at least proficient, is still valid.

I have to add I found it heartening that a handout such as this is being offered at the secondary school level, perhaps better preparing students for graduate school study.  And, while many schools have finished or nearly finished final exams, graduating 3Ls have the bar exam to look forward to, so, there is still time to improve study patterns.

[i] “How Should Students Revise:  A Brief Guide” https://chronotopeblog.com/2018/05/05/how-should-students-revise-a-brief-guide/  .

[ii] Karpicke, Butler, and Roediger, “Metacognitive strategies in student learning: Do students practice retrieval when the study on their own?” (2009). http://learninglab.psych.purdue.edu/downloads/2009_Karpicke_Butler_Roediger.pdf (citations omitted) (surveying student study strategies including rereading notes – the largest percentage of students; doing practice problems and using flashcards – second largest group; rewriting notes & studying with a group – the third most students; with “memorise”, next, followed by making outlines, practicing self-recall, and thinking of real life examples as a very distant last place for student self-reported learning strategies).

[iii] Koriat & Bjork, “Illusions of Competence in Monitoring One’s Own Knowledge” https://bjorklab.psych.ucla.edu/wp-content/uploads/sites/13/2016/07/Koriat_RBjork_2005.pdf .

[iv] Id. These studies, which focus on how to study, inevitably rely on the premise that of material stored in short term memory roughly half is lost following twenty-four hours, and that more successful learning requires information to be stored in longer term memory and made easily accessible – sometimes known as “working memory.” Baddley A.D., & Hitch, G. “Working Memory.” In G.H. Bower (ed.) The Psychology of Learning and Motivation:  Advances in Research and theory. (Vol. 8, pp.47-89) (1974).

[v] Weinstein, Nunes, & Karpicke, “On the Placement of Practice Questions During Study,” 22, J. Experimental Psych: Applied No. 1 72-84 (2016) http://learninglab.psych.purdue.edu/downloads/2016_Weinstein_Nunes_Karpicke_JEPA.pdf  To be sure, these experiments did not involve the kinds of material law students must master, and the authors did posit a distinction between content with differing levels of complexity.  The authors used written questions requiring short answers as their measuring tool – they did not include in the study any kind of oral Q & A or hypothetical examination as may be more common in law school.

[vi] Id. There are factors the study remained focused by ruling out such things as diverse educational background of students; prior knowledge of subject matter; variation in question difficulty, and complexity of learned material.  The students were undergraduate students; the subject matter was always the same; the questions asked required short answer responses, and the questions were identical across the experiment.  The authors leave open the impact of information complexity and different question requirements as unstudied.  The authors also note the possibility of a psychologically positive motivation for students who have had practice questions and received feedback when those students took the delayed test.  The authors posited that students who have already practiced successfully may be more motivated to be successful on the delayed test than those who have not.  The authors leave psychological benefit to future study.

[vii] The material taught and tested included In-Text Citation requirements APA style.

[viii] Perhaps this proximity reflects the general sense that short term memory is strongest during the first twenty-four hours after learning.

[ix] Id.

[x] See Weinstein, supra n. v.

[xi]  Bloom’s taxonomies were originally stacked – meaning that to achieve the next level of cognition, the first level must be achieved. Stacking is emphasized less today.

[xii] One of the suggestions the authors included was that students were more successful when they had immediate feedback – after practice questions compared with the delayed test results where feedback came after grading.

A professor speaks his truth to power

With thanks to Paul Caron at http://taxprof.typepad.com/  and in his words, “here is the remarkable letter written by Brian Mikulak and shared with his colleagues upon his retirement as a LRW professor at the University of San Francisco Law School”:

Dear [Dean],
As you know, I’m retiring at the end of this semester after nearly twenty-seven years of teaching as skills faculty in the law school. Trent has practiced environmental public interest law for nearly forty years, and particularly in this climate, he really needs to pass the torch to younger people with more stamina. We’ve sold our preposterously appreciated flat in the Mission and we’re expatriating. We’ll spend our first year in Latin America, our second in Italy, and figure out the rest on the road. We’re not sure whether we’ll come back.

I know it sounds cliche, but it has absolutely been a privilege and a terrific pleasure to have taught for the bulk of my legal career. The kids have been a fantastic and incredibly fulfilling part of my life. But as much as I’ll miss them—and as lucky as Trent and I have both been professionally—we want to launch our long-contemplated adventure while we’re still young enough to adventure.

I’ve collected my thoughts about my experience in the law school and the challenges it faces, and I want to share them with you and the rest of the law school community. I know what I’ve written is long, but after nearly twenty-seven years I think it’s time this subaltern spoke, and I ask you to hear me out.

Let me say at the outset that I respect scholarship and the people who produce it. I published one law review article many years ago. It wasn’t very long and it wasn’t published in a prestigious journal, but it took a great deal of energy and effort. I’ve now written a book I’m trying to get published. It’s not a scholarly work, but it is a serious book, and it, too, took a great deal of energy and effort. I very much appreciate our doctrinal faculty members’ role as scholars as well as teachers in the law school.

But I think your identity as scholars and your elite school formation have left most of you with an emotional need to believe that you’re vastly smarter than everyone else. So you tart up law in an attempt to make of it something more intellectual than it is. The result is that many of you teach in a needlessly opaque way that harms the students and the school.

Yes, law is often verbally and conceptually complex—maybe complicated would be a better word—but it’s always in a mechanical way. The language isn’t ornate and specialized because the concepts are too deep to convey more simply. The language and exaggerated formulations often veil political decision-making, and even when they don’t, they’re almost invariably more complicated than they need to be. Do you need a certain facility with words and a certain minimum capacity for abstract thought to do law? Of course. Are many of our current students borderline in these respects?

Obviously. Are their shortcomings matters of innate limitation or undeveloped skill? That’s a far murkier question. Some of our kids are privileged kids who don’t belong in law school if they couldn’t do better than us after enjoying all the advantages of parents with money and education. But in the last few years we’ve gotten increasing numbers of first generation college kids, immigrants’ kids and immigrant kids, the products of a dramatically more socio-economically diverse UC in the wake of the admissions changes wrought by Prop 209. I’ve welcomed these kids with open arms and view them as a renewal of the best of this school’s traditions and its original mission. This school was founded to serve kids too poor for Stanford and too ethnic for Berkeley. I couldn’t have been luckier in enjoying the recapture of that mission and purpose as the capstone of my teaching career.

I view this student cohort as all the more reason for the law school to finally tackle the antiquated beast of traditional legal pedagogy because that pedagogy needlessly imperils these kids. I distinctly remember feeling appalled by traditional law school pedagogy as a 1L, and I’ve never stopped feeling appalled. Demonstration and modeling are accepted, respected, and even required modes of pedagogy in every school of the university but the law school, where they continue to be marginalized if not maligned.

Legal think is a very particular—and very peculiar—kind of thinking, and it’s not very intellectual. It’s mechanical to the point of knee-jerk, it’s utilitarian but not very efficiently so, and it’s eminently small-minded. There’s a reason why they call it bean-counting. To paraphrase Mrs. Henry Adams on Henry James, legal think chews more than it bites off. When an undergraduate humanities professor assigns Homer’s Odyssey and then asks the class what entrancing sirens’ song keeps them from their respective journeys, the professor is teaching the students how to think. The law professor’s claim to teaching people how to think, on the other hand, isn’t just tenuous, it’s destructive.

A case disembodied into a law school casebook doesn’t work for timeless contemplation like a work of art because it’s not a work of art. It’s a utilitarian document in a cumbersome administrative system written not just for those who speak the language, not even just for those who speak the dialect, but for the lawyers directly involved in the matter. Handing a group of newbies a stack of appellate opinions and quizzing them on the in-speak in those opinions is a stupid way to teach people how to be lawyers, and it’s no less stupid for being time-honored. But it certainly does set up a power dynamic that keeps the kids in thrall of the professor.

Old hands don’t speak in-speak because they’re smart; they speak in-speak because they’re old hands. Newbies aren’t confounded by in-speak because they’re stupid; they’re confounded by in-speak because they’re newbies. Traditional law school pedagogy willfully conflates experience with intelligence. Professor Kingsfield wasn’t just a nasty old man, he was an intellectual fraud. An updated, kinder, gentler version of Professor Kingsfield is no less fraudulent for being less unpleasant. When a law professor assigns Pennoyer v. Neff in a void of abstraction and then expects the class to discern what from the tangle of technical in-speak subsequently emerged as doctrine and what fell into obscurity, the professor is demanding divination in the guise of demanding thought. The answer doesn’t come from a process of careful reasoning; it comes from acquired knowledge of the evolution of the doctrine that might just as reasonably have evolved differently.

It would be far more efficient and effective to sum up and explain what the rules have evolved to, and then to assign a problem and the cases that would control to show how courts go about adjudication. Tell them what the rule is, explain it, and walk them through the courts’ application of it in the first few cases assigned for the day, then ask them how the rule was applied in the remaining cases and move to the day’s factual problem. When it’s their turn—after you’ve turned the lights on—it’s totally appropriate to push, to demand, to cold-call. I certainly have. But when you demand divination in the guise of demanding thought, you pretend to a room full of newbies that you got the answer by sheer application of reason to the text.

Feigning knowledge of the answer by sheer application of reason to the text gratifies the teacher by leaving the students with the impression that the teacher is brilliant. But when teachers do that, they leave students feeling stupid, confused, and utterly adrift. The teacher’s ego gratification comes at the expense of panic and tailspin on the students’ part, and it’s especially destructive panic and tail-spin. It causes them to believe what they need to do here is immeasurably deep when in fact it’s shallow: They need to recognize what rules are triggered by the fact pattern, then quickly and superficially bat the most obvious facts back and forth and proceed to the next issue to do the same before time is called.

When a professor masquerades acquired knowledge as innate capacity, there’s no kid the professor is more likely to derail than the first-generation college kid from a lower-class background. These kids’ lives are freighted with reasons to doubt their capacity, and professional school is already an alien and intimidating environment for them.

I had a superfund lawyer’s kid in class a few years ago, and she wasn’t very smart. She wound up on academic probation after the first semester, and came to see me about it that January. When we discussed her status, the first thing out of her mouth was, “I know I can do this.” I get lower class kids on academic probation in my office every January. I can’t count the number of times the first thing I’ve heard these kids say was, “I don’t know if I can do this.” One of my recent students is the child of immigrant farmworkers who was first exposed to English in grade school. She writes it with greater fluency and style than most of my lawyers’ kids, but she was on academic probation in her first year. I could’ve predicted the classes she’d do well in—and those she’d do poorly in—based on the pedagogy of the professors who taught her first semester.

A couple of years ago Carol and I tag-teamed a student we particularly wanted to see succeed. He was a Latino floor refinisher’s kid who went to Berkeley. A kid like that doesn’t get to a school like that because of who his parents are. He definitely had the intellectual capacity to do law. And he absolutely was not a jerk-off; he worked very hard, and consistently so. His work was always in the clouds, and the task was to reel him down to earth. We would talk him down, and give him examples of what he needed to do. At one particularly telling moment, frustrated and still resistant, he blurted out, “It can’t be that simple!” So in addition to doing our own jobs, skills faculty have to, if you’ll pardon my French, un-fuck the kids’ heads after doctrinal teachers’ pedagogy convinces them legal analysis has to be inscrutably intellectual.

In the past, our students, like most law students at most law schools, muddled through. They taught themselves the rules and taught themselves how to write an issue-spotting exam. But it’s hardly a paean to the pedagogy that students made it through in spite of it rather than because of it.

Our doctrinal faculty need to think critically about the institutions where they believe they learned to think critically and I believe they learned to think alike. Elite education is first and foremost about assuring privileged kids that they’re better than everyone else and thus entitled to lead. If you’re smart and progressive, didn’t you notice that?

If you think I’m exaggerating about the composition of elite campuses, you probably missed the NYT Upshot piece about a recent study by Berkeley, Stanford, and Brown economists showing that dozens of top-ranked schools, including half the Ivy League, enroll more kids from the top one percent of the income spectrum than the bottom sixty. It includes a spiffy interactive feature that allows you to type in a school to get its top one to bottom sixty ratio. The study showed that kids from the top one percent have one in four odds of elite school admission, with those odds steadily, correspondingly, and stunningly declining as you descend the class hierarchy. The odds drop below one in a hundred at the sixtieth percentile, still significantly above median, and get worse from there down.

That study confirmed what I’ve known experientially ever since I set foot on an elite campus over forty years ago. I grew up in a Catholic-ethnic factory town in New England that has long since become an eastern Rust Belt town. I was one of four from a class of over four hundred at my factory town public high school to get to an elite college, and I was the only one of the four who was First Generation College. I naively expected to find there a campus full of top students from ordinary schools in ordinary working towns across the country, but found instead a world of kids whose elite degrees might as well have been printed along with their birth certificates.

I certainly did not grow up poor. But before you object that your background is just middle class, let’s acknowledge that the untenable elasticity in American use of that label isn’t an accident; it’s propaganda. Here’s what the real middle looks like: a median wage a bit above thirty grand and a median household income below sixty. As to education, two-thirds of American adults lack a bachelor’s degree and only the top five percent have a Ph.D. or a professional degree. If you were a kid forty years ago, for perspective consider that median family income in the mid-70s was about twelve grand. My family’s was nine. And we shared the company of about 85 percent of Americans as a household not headed by a college graduate. My sources are readily available census data on the web.

Yes, you worked hard to get your degrees. You dutifully, at times arduously stepped to the choreography your parents laid out for you to get where you are.[Fn.154: I know there are septuagenarian meritocrats on the faculty—Jews who broke the glass ceiling. But their progeny aren’t meritocrats; they’re aristocrats. That’s generally how it works.] But the vast majority of the population can’t get to Harvard by stepping to parental choreography because their parents don’t know the way, much less what steps to take on it, and because elite education, maybe college education at all, is culturally foreign if not out-rightly alien to them. What role does our doctrinal faculty play in that kind of alienation?

I’m genuinely flummoxed by what seems to be the unique severity of the doctrinal faculty’s snobbery. You guys even sneer at John because he’s not an academic, and he’s obviously vastly more accomplished than the rest of you put together. He was an Undersecretary in Obama’s cabinet, for Christ’s sake! In my twenty-seven years of teaching in the law school, very few doctrinal faculty members have ever treated me with the respect John does in a completely natural, matter-of-course way. And no, I’m not saying that to suck up to John. Talk to Brand about how much I suck up to Deans. Talk to Peter about how much I suck up to bosses generally.

While your education is certainly a big part of it, that alone doesn’t explain the phenomenon. My husband went to Harvard Law School, and while he and his Harvard friends absolutely have egos, none of them behave with the imperiousness that seems unique to academics. Over the years, when I’ve found myself in the elevator with a thirty-something I didn’t recognize with an officious, rushed, self-important air who avoided eye contact with me and grudgingly and uncomfortably acknowledged me when I introduced myself, I’ve generally assumed I had just met the latest doctrinal faculty hire. I’m sorry to say I can’t remember having been wrong about that.

It certainly was harder to make my way alone and uphill, but I’m glad I wasn’t born to the upper middle class. It must be like having been born in a 19th century novel. Your way was paved, but that meant someone else charted your course. Your way was paid, but that meant someone else held the purse strings. If you’ve never really known freedom and self-determination, I can understand that you would flog status as consolation.

Increasingly I’ve come to the conclusion that insecurity compounds the imperiousness of high birth and elite education. I can’t imagine a more charitable explanation for our doctrinal faculty’s disrespect of the skills faculty. For people as obsessed with status as most of you guys are, it must be a source of considerable anxiety that you teach at my alma mater and not yours. And for people who never tire of presenting themselves as progressive, you guys aren’t very good at letting subalterns speak.

The law school recently got the highest ranking it’s ever gotten: The Princeton Review ranked us number five in the country for academic support for minority students. The reason for that ranking has a name: Carol Wilson. For nearly thirty years she’s specialized in academic support for those students with the lowest admissions indicators in the in-coming class, and for those who fall into academic probation after the first semester. She’s engineered the stunning success of low- income and minority students with dauntingly low test scores and undergraduate grades, enabling them to emerge as some of our most illustrious alums. Those alums include the incomparable Cupcake Brown, a former junkie who became a big firm lawyer, Alameda County Chief Public Defender Brendon Woods, Federal Magistrate Candace Westmore, and my personal hero, Judge Advocate General Jophiel Phillips, a young man I’ll always feel honored to have taught.

It’s not hyperbole to say that it was institutional dysfunction to exclude from academic policy-making the teacher in the law school who enabled this kind of success for students who arrived with the lowest scores and grades in their classes. Her expertise is precisely what the law school most needs in navigating through its current peril. And yet you guys are so jealous of power and so into school snobbery that you exclude Carol, and Richard Sakai, and the rest of the skills faculty from policy-making.

Carol is the child of an auto-body man and a homemaker from a logging town in rural Oregon. Richard is a gardener’s kid. Do you guys seriously believe that you would have wound up at Harvard, Boalt, or NYU had you started out as children of auto-body men or gardeners?

I’m sure you’ll want to attribute the recent encouraging news about the Bar to doctrinal faculty answering questions for a couple of hours per week in the library pending the bar in the summer, while ignoring the fact that Richard Sakai and Rod Fong spent the rest of those weeks working one-on-one with kids who sought their help in substantially increased numbers, probably because last year’s pass rate put the fear of God in them. Time will tell whose efforts made the difference.

What I’ve consistently found with every post-crisis class is that while their written work is generally inferior, considerably inferior, to my students’ written work several years ago, their spring term moot court oral argument is just as strikingly and just as consistently superior. Might that be because our students in the past came more consistently from households and schools where serious attention to written work was part of a regime rigidly and relentlessly imposed, but debate skill typically was not? Might more of our current students conversely come from households and schools where rote academic preparation for higher education was relatively rare, but fluid and far less parentally scripted interpersonal exchange was more common? Might these differences be more about culture and class than intelligence?

I’m not sure of the answers to these questions, but I frankly feel troubled and offended by the presumption many on our faculty bring both to the questions how and why they came to be elite educated, and whether those not bred to a polished level of reading and writing are or are not capable of it. Of course it’s easier to teach kids who’ve been bred to assimilate abstract thought and to dutifully manipulate it according to the conventions of one or another discipline. But if doctrinal faculty want critical thinking and nuanced analysis on every question except who’s smart and who isn’t, we have a moral as well as an empirical problem.

I know that more than a few of you will want to dismiss what I’m saying about elite education as sour grapes, so I’ll share with you that after going on a four-year outside merit scholarship to Wesleyan undergrad, I got into a Ph.D. program at Duke, and scored in the 98th percentile on the LSAT. I didn’t come here to get my J.D. because this was the highest ranked school I could get into. I came here to work my way through night school because my employer offered tuition reimbursement and I wanted to continue to avoid educational debt.

I don’t, however, think that high test scores and the schooling high test scores facilitate mean what most of you want to believe they mean. I don’t dismiss the significance of those scores; the correlation between a school’s LSAT median and its pass rate is undeniable. But what they measure is not the limit of innate capacity; they measure academic skills learned to date. And even that they often enough mistake. Had your LSAT cut-off been in place when Cupcake applied, we would’ve rejected her.

I know precisely how and why I made my unlikely journey, and it’s not the tale of an ubermensch. I was the little fag who was afraid of the ball, but most of all I was afraid of the violent menace of the bully boys at school, not to mention my father and big brother—and that triggered the serendipity that landed me at Wesleyan. I certainly wasn’t averse to books, but I hid out in the public library to be physically safe and so wound up inadvertently spending the bulk of my childhood reading. As the physical menace faded in high school, the overwhelming pressure to conform in heterosexual dating and lusting sent me fleeing back to the library, which remained my escape and my refuge. Without the hostility that sequestered me in the library, I would never have wound up at an elite school—maybe not even in college at all.

While I was always regarded as the strongest student in the class, school, like the library, was my refuge and safe space. Teachers were rational, sometimes even kind, and the system of rewards and punishments was actually something I could control with my behavior, and so I eagerly did. I engaged at school.

I can fairly say I out-performed the few other kids who also engaged, but what about the defiant kids who completely rejected school and refused to cooperate? And what about the bulk of the kids in between, who submitted and went through the motions, but half-heartedly and half disengaged? I can’t say I’m smarter because I outperformed kids who weren’t trying, or trying very hard. So what do I really know about how smart they were and how smart I am?

How about you? If you’re the child of moneyed and educated parents, your native language lab was a dining table attended by parents with graduate degrees, you went to schools full of comparably situated kids that left the schools of the other ninety if not ninetyfive percent in the dust, and your sophisticated and financially enabled parents moved heaven and earth the moment you seemed to falter on the path to elite education, are you really so special for having arrived as delivered?

And are you really so special for having attained fluency in a rarified language that you’ve gotten paid to read, write, and speak for decades? How could you believe that knowing how to do what you’ve done for a job for years makes you smarter than someone who’s never done it before? Accretion of knowledge is supposed to produce wisdom, not snobbery. And the terrible irony is that when you rank what you do high and what other people do low, when you believe yourself superior for having mastered a job you’ve long done, and when you sneer at people who don’t know what you know, you’re buying into a social ideology that ultimately degrades what you do.

Upper class people have always appropriated anything culturally defined as high whether or not they have any autonomous inclination toward it or any natural facility at it. They sully reflective undertaking as a prestige totem. Professional class and rich parents shove books and art down the throats of even their most ill-suited and resistant children so their children can wear cultivation as a badge of social superiority in adulthood. Caste isn’t just about dispossession and disrespect for those born low; it’s also about distortion of culture and perversion of psychology for those born high.

The children of Tiger Moms aren’t born, they’re bred. And if Mom’s a tiger, Junior is likely a sheep, though an excellent one. I highly recommend to our faculty Bill Deriesewicz’s best-selling book, Excellent Sheep. And I’m attaching the chapter from my manuscript entitled The Social Distribution of Intelligence. If you can’t hear it from me, maybe you can hear it from Bill since he’s an Ivy League faculty brat who got his Ph.D. at Columbia and taught at Yale. He’s someone you’d claim as one of your own, so you can’t dismiss him as readily as you can dismiss me.

Working class and underclass people, in turn, typically respond to social and psychological ownership of higher education by the high born with defensive rejection. They get the message that university education isn’t their cultural property and, without the benefit of a casebook, they understand that property is held to the exclusion of others. They often view higher education as a set-up for humiliation and failure because, for them, it often is.

While most on the faculty got where they got because of their breeding, the farmworkers’ kid and the floor refinisher’s kid who sit before you got here despite their breeding. You can’t get from where they started to here without the intellectual capacity to do law. But faculty certainly could be too arrogant, too insular, and too socially incompetent to teach them. Take a break from laureling one another for the lines you’ve crossed and consider how short a distance you’ve travelled before you dismiss our current students as stupid.

Being in your classroom at all is emotionally and culturally freighted for a kid like this. And when the going gets rough he can’t fall back on the people back home. The people back home don’t know the terrain and they can’t help. Some of the people back home even view him as a traitor and would take satisfaction in his failure. For him it would also be horrific loss of face to turn to them because he was always the child who could, and suddenly he feels like he can’t. In fact, as the child who could he’s likely being called on to rescue them in one way or another on the assumption that school is something he’s got down because he always did.

Subjecting this kid to traditional law school pedagogy is Dickensian. I’m not remotely suggesting he should be spared rigor; he’s entitled to rigor. But anyone who can’t do rigor with respect shouldn’t be teaching here, if anywhere. If you make people who don’t know what you know feel stupid, you’re not a teacher. I’ve begun each academic year telling my students the difference between them and me in this context has way more to do with experience than it has to do with intelligence. “If I couldn’t run circles around a room full of newbies after years of teaching,” I say, “I’d have to be pretty fucking stupid.”

It’s really important that you understand that I’m not making a case for disadvantage. I’m not asking you to turn on the missionary shtick, which is one of the uglier expressions of educated liberal upper-middle class culture. These kids don’t need your condescension any more than they need your arrogance. I’m asking you to climb out of your insularity and conceit and drop both the arrogance and the condescension. I’m asking you do to something far more difficult and far more radical than being a liberal missionary: I’m asking you to renounce your belief in your innate personal superiority. That belief is the social class equivalent of white supremacy, and it’s morally vile.

But it’s the belief that motivates and animates your social class. When you pressed me for my views after a curricular reform meeting last spring, [Dean], I started to explain my view of the fundamental problem: that you and most of your colleagues are culturally and emotionally invested in believing that you’re vastly smarter than everyone else.

You physically recoiled when I said that. That’s how deep your belief that you’re some sort of intellectual ubermensch goes, and that’s why I’m writing with a jackhammer: I’m trying to reach you, and to reach your colleagues. I’ve used the word stupid liberally in what I’m writing because I’ve noted how easily that word flows from your lips. One thing I’ve always liked about you, [Dean], is that you actually say what most of your colleagues tacitly think.

There’s a lot about the culture I came from that’s ugly. There’s tribalism and xenophobia, there’s subordination of women and violence and substance abuse. And some of what’s ugly about it is even formally institutionalized: I lapsed as a practicing Catholic decades ago not just because I refused to abjure my sexuality but also because of the Church’s institutional misogyny and its historical role as colonizer of the heart in the grand sweep of Western imperialism—a historical role the last two papacies shockingly seemed to affirm.

I suppose it’s easier for me to be frank about the evil in my culture of origin because I left it as a matter of self-preservation. Having been born, educated, and employed all on the same rung of the ladder, on the other hand, it’s hard for you to muster critical perspective on your own cultural assumptions and to distinguish between them and something closer to objectivity in the way someone with multiple cultural perspectives can. But that’s all the more reason for me to ask again: How about you? What about your culture is ugly? What were you bred to believe that’s morally and empirically wrong?

People who owe high educational and social status to social and economic heredity have a long and ugly history of biologizing their status, of believing and socially asserting that their social and economic patrimony is instead some sort of innate superiority unique to them or to their families. They essentialize human intelligence because they inherited its trappings and the conventional modes of its social expression. And they drive their children mercilessly to validate their pretension to innate superiority. If you think I’m exaggerating or being unfair, consider that New York City now has advanced placement kindergarten—and advanced placement kindergarten test prepping. If you aren’t repulsed by that, your moral sensibility and mine are irreconcilable.

Protest your liberal politics all you want; what you and most of your colleagues believe about yourselves and about other people puts you in bed with Charles Murray. When people back home tell me that at least Republicans are up front about who they are, I can’t argue with them.

In the social world I grew up in, you could be better than other people at something. But the minute you crossed the line into belief that what you excelled at somehow meant that you were better than other people, you got smacked down, smacked down hard and smacked down fast. In that way, at least, the social morality of the culture I came from is better, vastly better, than your culture’s. I came from a culture of solidarity while you and most of your colleagues come from a culture of virtuosity. You’ve almost completely excluded from the faculty anyone from a culture of solidarity in the name of your superiority and our inferiority, and in so doing you’ve fundamentally subverted the traditional educational enterprise of this school.

For most of its history this school’s teachers were their students’ social if not situational equals. The professor of course wielded the power in the classroom, but he came from the same social and ethnic group as his students so he didn’t view himself as a superior species. He could be a taskmaster without compromising his camaraderie and solidarity with his students. Over the course of the past few decades, the law school devolved into a school for the also-ran children of Mill Valley, Piedmont, and Hillsborough. During those same decades, its doctrinal faculty became populated by people from elite schools, schools that have always been socially and economically exclusive.

And during those same past few decades this country has suffered a harrowing reversion to pre-New-Deal class structure. We’re as economically stratified today as we were in the first Gilded Age. The tier of schools whose degrees have become a de facto prerequisite for a doctrinal faculty position in our law school have also reverted to their Gilded Age socio-economic composition—not that they ever varied from it in any significant way.

Since the crisis, I’ve been thrilled to see the law school begin to return to its roots in enrolling working-class, underclass, and immigrant kids in much greater numbers. These kids required recalibration of my teaching and much more work, but I was never happier and more satisfied in my job than I’ve been for these past few years. I’ve savored my work with the kids who could, the kids from unlikely circumstances who got to Cal and from there to my classroom. If you can’t find intelligence in these kids it’s because you can’t find intelligence beyond the social and economic mirror. Unreflective presumption about who’s smart and who isn’t is certainly flattering to the egos of those with the conventional social trappings of intellectual superiority, but it’s not honest. Anyone morally and socially fit to teach at this school has to start from that premise.

I’ve walked into the classroom presuming that I knew how to do something my students didn’t. And I’ve understood, morally, that that knowledge and experience didn’t and doesn’t make me superior to them, but just more knowledgeable and experienced. I didn’t throw out that baby from my native cultural formation with the bathwater of tribalism and sex-phobia, despite your culture’s profound influence on my life and my otherwise substantial assimilation to it. I think that’s why I’ve been able to learn from my students and they’ve been able to learn from me. They know when you genuinely respect them and want to engage with them, and if you do they’ll let you in. Then you get the fun and satisfaction of a wonderful and productive intimacy with them. If you’re lucky, the bond grows into something not entirely unlike a love affair. But you’ll never be able to effectively teach them until and unless you recognize how much you have to learn from them. Without that mutual respect—and that humility—you’ll never connect with them in a meaningful way.

I don’t remotely know how it feels to be non-white in American society. I do know intimately how it feels suddenly to be in a foreign and intimidating educational environment, abruptly to feel stupid and incompetent there, and to spin into panic and confusion. And of course I know the profound and harrowing otherness of growing up gay in a clannish, provincial, Catholic ethnic factory town many decades ago.

My life experience has left me emotionally attuned to otherness and vulnerability in my students, even when I’m quite literally ignorant of their experience. This is why and how I’ve learned so much from them. I’ve always known there’s so much they know and understand that I don’t. We’ve coached each other. I could never have been their teacher without also having been their student. You can’t either. If you can’t learn in a way you didn’t on an elite campus and in your childhood preparation for an elite campus—if you have a hard time learning in a way that’s not culturally familiar to you—welcome to their world with you as their teachers. How would you like it if they dismissed you as stupid because you don’t understand them?

If you teach in a way that, as a practical matter, is socially exclusionary, you’re not teaching other people how to think; you’re practicing the bigotry that’s at the core of your social class’ selfreplication. And if you won’t deconstruct your own breeding, you’re the ones whose thinking needs some work. If the modern scholarship of social relations teaches us anything, it teaches that much of what were believed to be biological verities are instead social constructs. So how does that insight apply to your purportedly innate intellectual superiority, [Dean], and the purportedly innate intellectual superiority of your colleagues? Is that the rare instance of biological verity, or is it social construct?

But deconstructing your breeding is subversive for excellent sheep. It’s scary to take off the blinders that have always kept you trained on the next rung up, the blinders firmly affixed to your head by your parents and maybe firmly affixed to their heads by theirs. Looking around instead of always and only up risks the singlemindedness that got you where you are.

I think this, more than greed or self-aggrandizement, is behind the professional class mania for remaining always busy. If you allowed yourself a free moment you might actually think outside the mill of professionalized thought. And that, of course, is fraught with risk that you’ll become distracted from the climb. Looking around instead of always and only up risks reflection about what you’re doing and imperils the climb with the menace of ambivalence. But this is the stuff of moral deliberation, and if you won’t do it you shouldn’t be teaching anybody anything. If you won’t do it you should use your fancy degree to get lots of money and power at a law firm where moral deliberation is derided as sophomoric.

I’m not saying I think there’s no natural variation in human intelligence. But could it be more obvious that its social measurement and assignment are profoundly political? When have the socially dominant ever failed to pronounce themselves innately intellectually superior, and innately superior in virtually all ways? Hitler’s hissy fit when Jesse Owens won was nothing new when it happened and it’s nothing old now. The sex-based math performance gap has steadily shrunk with the educational advancement of women. The race-based gap in standardized test scores has steadily shrunk with social policy enhancing the status of a self-perpetuating black upper middle class to something more closely approximating the status of a longstanding, self-perpetuating white upper middle class. And the class-based gap in standardized test scores has steadily widened with the reversion to pre-New Deal class stratification this country has suffered in the past forty years. So much for biological verity. My money’s on social construction—and it was long before I knew that was what academics called it.

In this context, the only morally safe and empirically sound way to proceed is with the objective acknowledgement that you know how to do stuff your students don’t. Whether they don’t or don’t yet depends rather dramatically on you. If you pollute the classroom with the conceit of innate personal superiority, the kids will very likely validate it for you. And because that conceit is the animating belief of your social class, your class’ dominance of the doctrinal faculty is a moral and practical disaster for this school and for others like it.

In my teaching career I’ve tried to renew and modernize this school’s tradition of camaraderie and shared sense of identity between teacher and student built on the social if not the situational equality of teachers and students. I’ve tried to do this in a twentyfirst century context where the teacher isn’t an Irish Jesuit but an openly gay man and the students aren’t all Irish and Italian SI boys but the majority minority kids of a post Prop. 209 UC system enrolling vastly more first generation college students from ordinary working families than it did in your day and vastly more than Eastern schools ever have or ever will.

The sociological composition of the doctrinal faculty is the biggest impediment to the renewal of the law school I believe in and have attempted to live in my teaching. My moral sensibility shouldn’t be under siege and my cultural perspective shouldn’t be extirpated on the law faculty of a Jesuit school because you can’t seem to find anyone you think is as smart as you in the social realm I came from. Have your culture of conceit at Harvard; a school like USF should be a haven for the culture of solidarity that built it.

The university should set a goal of proportionality by class background in the composition of the law faculty. In service of this policy the university administration should institute a rebuttable presumption that elite-schooled faculty candidates are morally and socially unqualified to teach here.

The university should also end the doctrinal faculty’s exclusion of skills faculty, librarians, and program administrators from voting rights. The skills faculty, the librarians, and program administrators are a far more genuinely diverse group with a much more respectful and productive connection to the students than the doctrinal faculty.

There’s an urgent practical reason for ending the doctrinal faculty’s monopoly on institutional power in the law school as well: The school’s current peril is about student outcomes, not SSRN rankings. Morality aside, exclusively empowering the faction of the law school with an overwhelming stake in the latter and disdain for what they view as the yeoman’s labor necessary to improve the former is just plain bad institutional policy.

When I said at the outset of this message that it’s been a privilege and a great pleasure to teach our students, I wasn’t mouthing a retirement platitude. Of course not my every interaction with my kids has been great, but the joy I’ve experienced from knowing my students and from the intimacy of teaching beginners left me in tears when I broke my news in my last classes. I’m looking forward to getting drunk with my kids before Trent and I launch.

I think getting to do something that engages and satisfies you and that bonds you to the people you do it with is lucking out—and I did in my teaching career. But for too many on the doctrinal faculty, it’s all about the next rung up. I’m sure many of you would ditch this school in a heartbeat for a higher-ranked school—if you could. I distinctly remember being taunted by a tenured faculty member, many years ago, for my lack of ambition because I just wanted to teach what I’ve taught.

So if you were really smart and you had ambition, you’d want to teach in an amphitheater of eighty kids where you can’t create and enjoy and profit from the intimacy of a small seminar. And you wouldn’t want to experience the wonderful and engaging intimacy of coaching bewildered and insecure newbies because there’s more prestige and status to be had in teaching upper division doctrinal law.

That’s the way most on the doctrinal faculty were bred to think, and the way you guys unreflectively continue to think. And that’s why I think you’re the ones who need to be taught how to think. It’s also why you don’t deserve these kids if this school isn’t your first choice.

I guess ambition is relative. I like my native culture’s understanding of it better than yours.

Sincerely,
Brian

Gerald P. Lopez (UCLA), Transform—Don’t Just Tinker With—Legal Education (Part Two), 24 Clinical L. Rev. 247, 404-21 (2018

New Blog on Leadership for Lawyers, Law Students, and Legal Educators

Readers of this blog may be interested in following the new blog Leading as Lawyers. Recognizing that all lawyers are called upon to lead, the blog explores leadership and professional development topics of interest to law students, lawyers, and legal educators. The first posts on this new blog have explored topics like self awareness, leadership in developing diversity in an organization, and addressing novel situations with authenticity, competence and candor.

Mandatory Professional Skills Training: What a Long Strange Trip It’s Been

 

By Robert Kuehn, Washington University School of Law

 

The ABA first adopted standards for accreditation of law schools in 1921. But, as explained in a recent article by my colleague Peter Joy,[1] it was not until 1993 that schools were required to provide a program of education that would prepare students for the practice of law, not simply for admission to the bar. And not until 2005 did schools have to begin to ensure that each J.D. student receives instruction in the professional skills necessary for effective participation in the legal profession. Even then, the ABA determined that a student needs only “one solid credit” hour of skills training to be considered adequately prepared to begin the practice of law.

Since the adoption of a professional skills requirement, law school enrollment has declined precipitously, graduates have struggled to find employment, and bar passage rates have dropped in many states. In the midst of this turbulent period, in 2014 the ABA recognized the inadequacy of its one-credit skills requirement and adopted a six-credit experiential requirement that will apply to graduates starting next year. With a decade of mandatory professional skills training now completed, it is a good time to examine enrollment trends in law clinic, externship, and simulation courses over the past ten classes of law students.

Reviewing data submitted to the ABA in annual questionnaires certified by each school’s dean to be true, accurate, and complete,[2] there has been significant growth in enrollment in experiential courses since academic year 2005-2006. Total enrollment in law clinic, externship, and simulation courses has increased by almost 25% over the past ten years,

1
Some of the growth before 2011 might be attributable to increased law school enrollment. But, as seen below, the rate of increased participation in experiential courses has far outpaced law school enrollment, which is down by over 20%. It is also of note that the growth in experiential course enrollment started even before the first group of graduates were subject to the new one-credit professional skills requirement so this increased enrollment was fueled by much more than that requirement.

 

2

 

This experiential course growth independent of law school enrollment is illustrated in the next two graphs, which track enrollment growth per upper-level student. Although down slightly the last few years, upper-level students enrolled in an average of 2.06 experiential courses in 2015-16, a 57% increase in enrollment per student over the ten-year period.

3
Law clinic and externship enrollment reflect this growth. Clinic enrollment is up 57% and externship up 74% (the ABA stopped requiring schools to report actual law clinic positions “filled” after 2016; only purported positions “available” is now reported). Enrollment in externships has always exceeded clinic enrollment but was particularly strong beginning in 2011, a time when graduate employment rates dropped significantly.

4

Some have suggested that the recent drop in bar passage may be due to increased enrollment in experiential courses and the possible substitution by students of skills courses for typical doctrinal coursework. However, the next graph indicates that bar passage rates were fairly steady from 2006-2013,[3] a time when experiential course enrollment increased by over 50%, and the recent decline in bar passage coincided with decreased experiential enrollment. In addition, David Moss (Wayne State) and I will be publishing the results of our joint study of ten years of law graduate performance on the bar exam which finds no association (positive or negative) between taking experiential courses and passing the bar.
5

Others posit that rather than the increase in experiential course enrollment, the bar passage decline may be due to the decreased LSAT credentials of entering J.D. students, an association seen in the next graph plotting the median LSAT of entering students against bar exam results three years later.

 

6

 

When the ABA was debating the increase in required experiential coursework in 2014, it also considered a request to require every student to obtain a real-life practice experience through a law clinic or externship. Although the ABA declined to require every J.D. student to graduate with a clinical experience, there has nonetheless been a dramatic increase in the number of schools that require or guarantee enrollment in a law clinic or externship course before graduation, increasing from just 12 schools in 2005 to 68 in 2017:

 

7

 

Because of the growth in available positions for students in law clinic and externship courses over the past decade, many more schools also could easily require or guarantee a clinical experience to every student. In their most recent reports to the ABA, 90% of schools had sufficient capacity in their existing law clinic and externship courses to adopt a requirement or guarantee without adding any additional courses or slots for students. Yet, only 33% of schools currently ensure that each graduate may have a clinical experience in spite of evidence showing that a clinical experience can be provided to all students without the need to increase tuition.[4]

 

8

 

It took the ABA over 70 years to recognize that the purpose of law schools, like all other professional schools, is to prepare its graduates for successful entry into their profession, not just success on a licensing exam. The recent adoption of a skills requirement was an important step toward that preparation. But, a mere six credits is hardly sufficient training in the “professional skills needed for competent and ethical participatin as a member of the legal profession” that the accreditation standards require.[5] Let’s hope it’s not another 70 years before law students are finally provided the enhanced professional skills training that they truly need to successfully begin the practice of law and is common in other professional schools, including a mandatory clinical experience for all graduates.

 

 

 

 

[1] Peter A. Joy, The Uneasy History of Experiential Education in U.S. Law Schools, ___ Dick. L. Rev. ___ (forthcoming 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3129111.

[2] Enrollment data available at http://www.abarequireddisclosures.org (2011-2017) and ABA-LSAC Official Guide to ABA-Approved Law Schools (2005-2010).

[3] Bar exam statistics available at http://www.ncbex.org/publications/statistics/statistics-archives.

[4] Robert R. Kuehn, Universal Clinical Legal Education: Necessary and Feasible, 53 Wash. U. J.L. & Pol’y 89 (2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2942888.

[5] Am. Bar Ass’n, 2017-2018 Standards and Rules of Procedure for Approval of Law Schools, Std. 302(d), available at https://www.americanbar.org/groups/legal_education/resources/standards.html.

Keeping Up with the Henthorns

Written by Albany Law School Professor, Melissa Breger.

Keeping up with current case law can be a true treasure trove for classroom teaching. It can breathe life into an otherwise ordinary topic. And truth is so often more compelling than fiction.

A few years ago, while reading the Evidence Law Faculty ListServ, I learned about the case of US v. Harold Henthorn. (Thank you to Ann Murphy, Gongaza Law!)

 Henthorn had been recently tried federally for the intentional murder of his wife, Toni Henthorn. He claimed his wife of 12 years, Toni, accidentally fell off a remote 100-foot cliff in Colorado. The team of AUSAs on the case wrote a brilliant motion to try to introduce FRE 404(b) evidence. The motion was granted.

Click here to review the motion.

The prosecution sought to introduce:

  1. Evidence that Lynn Henthorn, also Harold’s well-insured (former) wife of 12 years, “accidentally” and mysteriously died under a Jeep in the middle of the night in a remote location;
  2. Evidence that Harold took out very hefty life insurance policies as beneficiary for his wives, as well as for his former sister-in-law (of whom he was also romantically interested); and
  3. Evidence that a 40-foot wooden beam “accidentally” hit Toni Henthorn from the roof of the remote lake cabin in the middle of the woods some years earlier.

The trial court agreed to allow in the previous events where Lynn died and Toni was injured, and the fact that life insurance was taken out on both of Henthorn’s wives with himself as a beneficiary. The Court did not allow in the claims that Henthorn also took out an insurance policy on his sister-in-law’s life. The Court required limiting instructions on the pieces of evidence it allowed in at trial.

In class, I explain to the law students the story of the Henthorn family, but I do not have them actually read the cases or the motions until after we have discussed the case in class. (After class, all of these materials are posted and distributed). In the classroom, I have the law students analyze each piece of evidence that the prosecution is trying to enter into evidence under FRE 404(b).

Click here to review Rule 404(b).

This exercise offers a rich, nuanced vehicle for discussion to explore the very important Rule of Evidence, FRE 404(b), in comprehensive detail. The rule, also misleadingly called the Rule of “PRIOR BAD ACTS” reads:

Character Evidence.

404 (bCrimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

At the same time there were eerie similarities between the events, there were also obvious differences. The defense certainly had much room to dispute the idea that there was any common plan or scheme here. The events were also decades apart in timing.   The trial court allowed in the acts with limited instructions that they be considered only under “planning, intent, and lack of accident.”

When the 10th Circuit reviewed the case, the Court noted that prior events were “extraordinarily similar to the charged offense.” In terms of the large span of years between the events, the Court noted “acts “quite remote to the crime[] charged have frequently been deemed by us and our sister circuits to be relevant if they were sufficiently similar to those crimes.”

Click here to review the 10th circuit case.

The case, while truly tragic and disturbing, has provided future lawyers with a wealth of material for learning complicated concepts about FRE 404(b), The Doctrine of Chances and the admissibility of prior crimes, wrongs and other acts.

 

 

 

 

Drafting Exams With Test-Taking Speed in Mind

It’s time to write final exams again. It’s also time to struggle with what role test-taking speed should play in our assessments.

William Henderson’s Study

As Professor William Henderson’s ground-breaking study demonstrates, test-taking speed – how fast students can read and answer test questions– is often an independent variable when students take in-class timed law school exams.

As Professor Henderson cautions, given the high stakes nature of law school exams, we need to be cognizant of the test-taking speed variable and consciously decide whether it is one we think is important in terms of the substance or skills being assessed. As he notes, test-taking speed may have limited relationship to how lawyers use doctrine and legal analysis and it also may have a discriminatory impact.

Potential Solutions

Some faculty members address the test-taking speed issue by giving take-home exams or papers. Others do not want to give take home exams for a host of reasons, including the belief that the material does not lend itself to a take-home exam or concerns about policing academic honesty.   For those of us giving timed, in-class exams, are there ways to decrease the impact of test taking speed? Below I share a few ideas. I also invite those of you who have grappled with this issue to share what you are doing.

A. Pre-release exam instructions

One way to help students at least prepare for time constraints is to release exam instructions ahead of time. In many classes, the exam  instructions identify how many questions and provide suggested time allocations. This information, shared in advance, can help students plan their time before they take the test.

B. Pre-release a couple of questions

In addition to pre-releasing instructions, 24 hours before an exam, I pre-release a couple of short answer questions [worth 10-15% of the total raw score points]. This allows students to prepare answers to those questions ahead of time.  For those questions, I minimize the test-taking speed issue.

I allow collaboration on the pre-released questions so I do not need to police students. I also warn students about the dangers of collaboration and letting others lead you down the wrong path.

C. Time yourself

I also take the test myself, timing how long it takes me to answer a question or set of questions. I double or triple the time allotted based upon how long it took me, or in some cases how long it took a colleague who gave my exam a test run. For example, if it takes a professor about two minutes per question for a set of multiple choice questions, I allot four to five minutes per question for my students.

Some may argue that allowing five minutes per multiple choice question does not prepare students for the bar exam – an exam in which students have under two minutes to answer often fairly complex multiple choice questions. That point is correct and it raises the interesting question of whether one’s course grade should be capturing bar exam taking skills.  It also raises the bigger question about whether test-taking speed is a variable that we, and bar examiners, should be assessing.

Reliability and Validity concerns

Significant time to answer a question necessarily means a test with fewer questions. For some, this prompts reliability and validity issues [fewer questions may reduce the reliability and thus the validity of an exam]. On the other hand,  test-taking speed as an independent variable also raises questions about test validity.

Making Sure We Understand the Issues

These are complicated issues and different faculty may have different answers to the test-taking speed questions. The key is not necessarily how we answer these questions – it is that we are asking ourselves the questions as we draft our exams.

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