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Electronic copy available at: http://ssrn.com/abstract=2115768
How to Become an Expert Law Teacher by Understanding The Neurobiology of Learningby Scott Fruehwald
Legal education is changing. Law schools are incorporating skills classes into their
curriculums, and law teachers are integrating new techniques into their teaching. Subjects that
were never taught before are now appearing in law school curriculums. In addition, some classes
are smaller than before. Now for the last step–turning law professors into expert teachers.
A group of education scholars has stated the following:
Clearly, teaching is a skill, and like any skill, it must be practiced. Just as athleteswanting to improve their skills must identify personal strengths and weaknesses,set goals, and engage in focused practice to meet these goals, teachers must alsoexamine their practices, set growth goals, and use focused practice and feedbackto achieve these goals. These reflective processes are essential to the developmentof expertise in teaching.1
The above is especially true for law professors because law professors are generally not taught to
how to be teachers; they lack pedagological-content knowledge (how to teach a particular2
course). Law professors must learn how to teach on their own.3
Law professors generally teach using the Socratic method, often combined with lecture.
This consists of teaching students by asking them questions. In a typical law class, the professor
will examine several appellate cases using this method, sometimes adding hypotheticals after
each case.
Many legal scholars have criticized the use of the Socratic/case method as an ineffective
teaching method. Among the deficiencies in this method are 1) it does not teach students how to4
apply the law, 2) it focuses attention on one student at a time, while other students may not pay
attention, 3) students become bored with the constant use of the Socratic method, 4) focusing just
on appellate cases gives students an incomplete view of the legal context, and 5) many students
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Electronic copy available at: http://ssrn.com/abstract=2115768
are intimidated by the Socratic method to the point that they have emotional problems. Simply
stated, the Socratic method is not an effective way to learn most legal skills. 5
Other scholars have criticized traditional methods of law school teaching as not preparing
students for practice. Professor Schwartz has declared, “law school instruction as a whole,6
remains locked in an instructional methodology of dubious merit.” More specifically, Best7
Practices, a recent critique of legal education, has argued, “Law schools cannot help students
cultivate practical wisdom or judgment unless they give students opportunities to engage in legal
problem-solving activities.” Finally, Professor Schultz has stated: “The limited focus of most8
law school classes on derivation of rules and policy considerations from appellate decisions
cannot begin to approximate the thinking process of the competent attorney. Teaching students
to think like attorneys loses much of its meaning if that thinking is not placed in the context of
what lawyers actually do.”9
There is a growing number of law professors who think we can do better. For example,10
Professor Andrews has declared, “[s]tudents need to master the law, not merely understand the
law.” Similarly, Professor Burgess has asserted, “By incorporating efficient and innovative11
teaching methods in law school, professors can teach more doctrine and more skills in the same
amount of time.” Likewise, Professors Feinberg and Feldman have argued, “[w]hat is primarily12
missing in legal school is an educational environment that provides students with resources and
the situations with which they can best learn. When given appropriate instruction, nearly all law
students can achieve mastery–not merely competence–of the skills of the novice lawyer.” 13
Finally, Professor Wegner has asked, “Have law schools limited their expectations of themselves
and their students by focusing so heavily on certain educational objectives (comprehension,
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analysis, and simple application), and giving others (such as more sophisticated forms of
application, synthesis, and evaluation) short shrift?” In other words, it is not that our students14
are too lazy or lack the intelligence to master the law, it is that we are not using the proper
teaching methods.
This article applies cognitive psychology and learning theory to explain how to become
an expert teacher. As Best Practices has asserted, “Members of a law school faculty should15
base their teaching decisions on research about effective teaching, or at least hypotheses
grounded in research.” More specifically, “It is clear that a successful pedagogy that can serve16
as a basis for the enhancement of thinking will have to incorporate ideas about the way in which
learners organize knowledge and internally represent it and the way these representations change
and resist change when new information is encountered. Despite all of the gains that cognitive
psychologists have made in understanding what happens when people learn, most teachers do not
apply their knowledge of cognitive psychology.”17
This article begins by discussing the neurobiology of learning, then it uses this
understanding to move onto educational theory and finally to the details on how to be an expert
law teacher. Part II of this article addresses how humans learn (the neurobiology of learning) in
order to provide the foundation for the rest of the article. Parts III and IV apply this learning
theory to specific methods of improving teaching and learning. Part III examines the idea of
“engaged teachers” and “engaged learners.” Part IV discusses how to become a “self-regulated”
and “reflective” learner/teacher. Finally, Part V presents the attitudes and habits of expert law
teachers, while Part VI covers what expert law teachers teach.
Part II
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The Neurobiology of Learning
Thinking, learning, memory, and perception are physical processes in the brain. One18
can succinctly describe how these processes work: “Brain cells [neurons] fire in patterns.” This19
process is both electrical and neurochemical. Neurons work by passing on electrical charges to
neurons that are connected to them by synapses (connections between neurons). The firing20
neuron sends a chemical signal call a neurotransmitter across the synaptic gap to other neurons. 21
These signals either excite the neurons by increasing their electrical activity (causing them to
fire) or inhibit their activity. Neurons interact to create complex representations, concepts, and22
processes.23
The brain is the result of both nature and nurture: “The macro-architecture of the brain is
genetic, but the micro-architecture is environmental.” The brain is prewired “to receive input24
from the world in certain ways” and “to produce a defined set of motor movements.” (In25
addition, some neuroscientists believe that the brain is prewired with deep, universal mental
mechanisms that provide a framework for specific behaviors, such as the primacy of family ties,
the universality of dominance and violence, and human nature.) However, experience affects26
the brain on the micro-level by neural firing. In other words, genetics provides the framework;27
experience the details. Learning is part of the details.
Cognitive psychologists have identified the basis of human learning: “learning is a
relatively permanent change in a neuron.” Because neurons are changed by activity, “learning28
occurs when the firing ability of a neuron is changed.” Similarly, the synapses change with29
each firing, and linked neurons firing together strengthen the synapses. Importantly for30
learning, “Neurons grow or die and neural connections are created or eliminated based on which
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ones are active.”31
When humans learn something, it becomes Knowledge stored in the brain–in long-term
memory consisting of the firing potentials and interconnections of neurons. Professor Shell and32
his colleagues define Knowledge differently than it normally is in education scholarship:
“Knowledge is everything we know. It not only means facts and concepts, but also problem
solving skills, motor behaviors, and thinking processes.” They continue: “Knowledge . . . is33
entirely the result of the micro-architecture of the brain. . . . It is due to neural patterns in that
region having been strengthened and weakened in ways that correspond to learning algebra,
calculus, etc. The strengthening and weakening of neurons is learning. Thus, the micro-
architecture of the brain and as a result, virtually all of our [K]nowledge is the result of
learning.”34
Working memory is both the key to learning and the “bottle neck of learning.” Working35
memory has two functions–temporary storage and processing of information. Storage is the36
“process of turning a specific [sensory] input into a permanent trace” in the long-term memory. 37
The senses receive a great deal of input, which is aggregated into sensory output and sent to the
working memory. However, the working memory cannot handle all this sensory input, so one38
of its roles is “attention”–to process some of this input and ignore other parts. Attended39
memory activates neurons in a temporary memory area, which “creates a neural representation of
the sensory input in working memory.” “Long-term potentiation” preserves this input for a few40
hours. “If the neural pattern does not decay, it activates a neural pattern in the cortical region41
that produces a permanent memory trace of the original input.”42
Working memory has only about four slots. However, these slots can hold from single43
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letter to complex chunks (schemas). A chunk is “a connected grouping of [K]nowledge.” 44 45
From a neurobiological viewpoint, chunks are neurons connected by synapses. 46
Working memory is devoted to a task when slots are available for input and attention or
processing is directed to the slot. Attention directs sensory input, and it prevents a temporary47
memory from being erased. Novelty and salience affect attention. Humans can focus48 49
attention, and this mainly depends on concentration.50
When the trace is the same as a neural pattern already in long-term memory, the pattern is
fired, and it is strengthened in the long-term memory. If this happens frequently, the pattern is51
further strengthened, and working memory recognizes it more quickly (called retrieval). When52
two sensory inputs are in working memory then stored in long-term memory, the two inputs will
form a neural pattern. When one of inputs is retrieved, it fires the neuron of the other one
because the neurons are chained together (matching). This function also occurs when more53
than two inputs are involved in the pattern. The fact that this can continue infinitely “is how54
our knowledge of things and concepts are built.” In other words, “when one part of a chain is55
matched, the entire chain is activated because patterns are linked by chaining of neurons” 56
(Pattern matching). Thus, with the help of long-term memory and chunking, “the amount of
knowledge potentially available for processing in working memory can become quite large. . .” 57
For example, human brains store the appearance, taste, and odor of an apple together. 58
Consequently, when a person sees an apple, she can also link to its smell and taste in a single
slot. In sum, “learning is about connections.”59 60
Motivation affects working memory. Just because working memory slots are available61
does not mean they are being used. Working memory is substantially connected to and receives62
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input from the emotions. Emotion affects attention and allocation of working memory. More63 64
specifically, “Motivation in working memory is derived from emotional inputs as well as from
[K]nowledge that has been stored about previous performance, goals, rewards, and ourself.
These motivational influences determine the effort level that is put into learning.”65
Based on the above, Dr. Shell and his co-authors have developed the three basic
principles of learning (the Unified Learning Model or ULM):
1. Learning is a product of working memory allocation.2. Working memory’s capacity for allocation is affected by prior Knowledge.3. Working memory allocation is directed by motivation.66
They then set out five rules of learning:
1. New learning requires attention.2. Learning requires repetition.67
3. Learning is about connections.4. Some learning is effortless; some requires effort.5. Learning is learning.68
In sum, “Teaching and instruction work when they create conditions that ultimately
trigger learning neural mechanisms in students.” The remainder of this article will discuss69
learning theory that is consistent with the ULM, then use this learning theory to present specific
ways of how to become an expert teacher.
Part IIIHow to Become an Engaged Teacher and an Engaged Learner.
The first step in becoming an expert teacher is to become an engaged teacher and an
engaged learner because one cannot not satisfy the ULM without being engaged. Daniel
Kahneman has developed the idea of the ‘engaged’ thinker. He writes, “[t]hose who avoid the70
sin of intellectual sloth could be called “engaged.’ They are more alert, more intellectually
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active, less willing to be satisfied with superficially attractive answers, more skeptical about their
intuitions.” In contrast, lazy thinkers are characterized by “a reluctance to invest more effort71
than is strictly necessary.”72
Kahneman’s idea of engaged and lazy thinkers is based on his concept of how the human
mind works. He believes that evolution produced two interactive modes of thinking:
System 1 operates automatically and quickly, with little or no effort and no senseof voluntary control.System 2 allocates attention to the effortful mental activities that demand it,including complex computations. The operations of System 2 are often associatedwith the subjective experience of agency, choice, and concentration.73
Thus, System 1 is unconscious, intuitive thought (automatic pilot), while slower System 2 is
conscious, rational thinking (effortful system). The reason that many thinkers are lazy is that
cognitive thought in System 2 requires a great deal of mental effort (ULM rule 4), and people
who are unmotivated do not expend that mental effort. In such a situation, lazy thinkers often74
adopt “a superficially plausible answer that comes readily to mind,” which comes from System 1
(which is subject to biases), rather than the correct answer that requires more work. Similarly,75
Professor Halpern has remarked, “[i]t is important to separate the disposition or willingness to
think critically from the ability to think critically. Some people may have excellent critical-
thinking skills and may recognize when the skills are needed, but they also may choose not to
engage in the effortful process of using them. This is the distinction between what people can do
and what they actually do in real-world contexts.” 76
Accordingly, to be an engaged teacher, a professor must have the discipline to overcome
the lazy thinking of System 2 and the biases of System 1. As Kahneman has declared, “[e]ven in
the absence of time pressure, maintaining a coherent train of thought requires discipline.”77
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The importance of being an engaged teacher is obvious. An engaged teacher gives more
to his students because he is more prepared. He thinks more about what he wants to accomplish
in class. He pays attention to each student in the class. He reflects on each class and whether
that class was effective. Most importantly, he cares that the students learn. I will give more
details of being an engaged teacher throughout this article.
An engaged teacher must also be an engaged learner. One reason that a professor must be
an engaged learner is that it takes many years of intense training to develop expertise. Expertise78
requires a powerful memory (Knowledge under the ULM). Kahneman has pointed out, “[t]he79
acquisition of expertise in complex tasks such as high-level chess, professional basketball, or
firefighting is intricate and slow because expertise in a domain is not a single skill but rather a
large collection of miniskills.” Kahneman estimates that it takes 10,000 hours of practice to80
become a chess master. Similarly, Best Practices has noted, “Developing problem-solving81
expertise requires repetitions of ‘training’ as against the hard world of consequences, of repeated
success and failure, and some inductive efforts at understanding what works and what does not,
what seems important and what does not.” The amount of time that it takes to become an82
expert is one of the reason that students often find their instruction to be poor. Law professors83
may be experts in a field, such as Contracts, but many of them are not experts at teaching
Contracts to novices (pedagological-content knowledge).
Being an engaged thinker or teacher requires deliberate practice. Education researchers
have identified two types of practice: practice to automaticity and deliberate practice. With the84
usual type of practice, the learner works at a skill to reach automaticity, after which the skill can
be executed with little effort. On the other hand, “individuals engaged in deliberate practice85
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tend to resist automaticity,” and they “strive to continuously achieve mastery of increasingly
higher levels of performance through the acquisition of more complex and refined cognitive
mechanisms.” Deliberate learners focus on the “not yet attained and challenging tasks beyond86
their current level of performance. . .” Deliberate practice is not easy, and it often results in87
failure. “Individuals are motivated to practice because practice improves performance.” In88 89
other words, engaged learners use deliberate practice to improve their engagement; they
challenge themselves. As two professors have argued, “only through deliberate practice, that
process of doing, erring, feedback, and incorporating that feedback into subsequent efforts, will
students become better learners, stronger performers, and, ultimately, experts in the field.”90
Deliberate practice helps learners develop schemas (ways to store Knowledge in
chunks). From a neurobiological viewpoint, such practice “causes [experts’] brains to develop91
better systems for storing, organizing, and accessing information in their area of expertise.”92
Geoff Colvin has identified the elements of deliberate practice. First, it must be designed
to specifically improve performance. A teacher is usually required for this because the learner93
lacks knowledge on how to formulate the design. Second, deliberate practice requires94
repetition. Third, feedback must be continuously available. Fourth, the practice must be95 96
highly demanding mentally. Finally, deliberate practice isn’t fun.97 98
In sum, because law professors are not generally taught to be teachers, the law professor
must teach herself through deliberate practice; she must become a self-regulated and reflective
learner/teacher.
Part IVHow to Become a Self-Regulated Reflective Learner/Teacher.
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A. How To Become a Self-Regulated Teacher.
An expert teacher is a self-regulated teacher. Self-regulated teachers/thinkers/learners99
“are intrinsically motivated, self-directing, self-monitoring, and self-evaluating.” “Self-100
regulation is a self-directive process and set of behaviors whereby learners transform their mental
abilities into skills and habits through a developmental process that emerges from guided practice
and feedback.” Self-regulated teachers “recognize when a skill is needed and [they have] the101
willingness to apply it.” Similarly, self-regulated teachers know themselves. They are102
inquisitive, open to new ideas, and take risks. They do not settle for the first answer, but always
consider alternatives. They admit when they are confused, and they try to clear up their
confusion before going on. Most importantly, self-regulated teachers/learners have learning103
strategies, and they focus more on the mastery of teaching than on salary. 104
Becoming an expert teacher is a process. Becoming a self-regulated thinker, learner, or
teacher begins with Bloom’s taxonomy (the six levels of cognition): “1) recall; 2) understanding;
3) application; 4) analysis; 5) synthesis; 6) evaluation.” Bloom’s taxonomy was intended to105
develop “higher order thinking skills,” instead of just recall of factual material.106
Using Bloom’s taxonomy, Professor Schwartz divided self-regulated learning into three
parts: forethought, performance, and reflection, then subdivided each of the parts. I have107
modified Schwartz’s categorization for self-regulated teaching.
The forethought stage involves the thought processes you undertake before you start
teaching–“task perception, self-efficacy, self-motivation, goal setting, and strategic planning.” 108
In the task stage, the teacher should perceive and react to the task. First, you should identify109
and classify the task, by perceiving its skill domain and the subject of the task For law110
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teaching, the skill domain will be a legal subject and the subject of the task is teaching a part of
that particular subject. For example, the task may concern teaching personal jurisdiction in Civil
Procedure. In addition, in the task stage, the teacher should react to the task, by determining how
much the teaching interests the teacher, establishing relevance to class goals, and relating the task
to prior knowledge.111
In the second forethought substage, the teacher “assesses her efficacy for accomplishing
the task.” Self-efficacy involves four factors: “(1) the [teacher’s] current skill level, (2) the112
extent to which she has witnessed modeling from peers and teachers. . ., (3) verbal persuasion
regarding the difficulty of the task, and (4) the [teacher’s] current psychological state.” A113
teacher should know their skill and experience levels. Having a positive attitude and confidence
in one’s self makes one a better teacher. If a teacher is not confident in her efficiency, she114
should do additional preparation for the class and learn more about effective teaching.
As is true under the ULM, self-motivation is a key to being a self-regulated teacher. A
teacher who wants to teach is more motivated than a teacher who teaches something just to earn a
salary. Setting goals is fundamental to motivation. Other ways to help self-motivation include115
replacing negative self-talk (usually from prior experiences) with “positive self-instruction and a
sense of self as an effective [teacher]” and developing new habits. Developing metacognitive116
strategies (ways to monitor one’s thinking; see below B) also helps motivation because using
them builds confidence.117
Based on the earlier stages, the reader then sets goals (purposes) for the teaching (the
desired outcome). It is often good to have a real world purpose when teaching. Why are you118 119
teaching this class and what do you want to accomplish? In coming up with a purpose, the
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teacher should be as specific as possible. “The purpose of this class is to teach personal
jurisdiction through three cases and supplementary material. By the end of the class, I want the
students to be able to synthesize the law of personal jurisdiction and apply it to real world
problems.”
Similarly, the teacher must consider the context of the teaching task. For example, how
does teaching personal jurisdiction relate to your goals in the class? How does this task relate to
other subjects the students have learned? How does this task relate to what lawyers do?
The final step in the forethought stage is developing a teaching strategy based on the
earlier substages. An expert not only has more domain knowledge than a novice, experts120
“bring knowledge to bear more effectively on problems within their domains of expertise than do
novices.” Similarly, “experts know which strategies and behaviors are generally effective121
within their domains of expertise, and they select the best or most effective strategy or behavior
for a particular situation.”122
Strategies are “set[s] of mental processes” used by a thinker to achieve a purpose. 123
Colvin has noted, “the best performers make the most specific technique-oriented plans.” In124
other words, strategies are ways to achieve your purpose. You should think about the steps you
will take in teaching a case and the tools you will use. It might help to write down your teaching
strategy for a class to help you form better strategies.
The performance stage is the actual teaching. This stage encompasses three processes:
(1) “attention-focusing,” (2) “the activity itself,” and (3) “the self-monitoring the [teacher]
performs as she implements her strategies and starts to learn.” Attention-focusing helps make125
the teaching productive. Self-regulated teachers are able to focus their attention. Having a126
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purpose or goal when teaching helps attention-focusing, as does being enthusiastic about
teaching. The best teachers focus not only on what they are doing, but on how the students are
reacting.
The activity substage is the actual teaching. I will have more on this substage throughout
this paper.
The final stage in teaching is the reflective stage. In this stage, the teacher critically
reflects on what she has taught and considers how effective the class was. The reflective stage127
is very important in helping a teacher improve their teaching. Did you accomplish your goals in
the class? Did the students fully understand the concepts? Did it take longer to teach the
concepts than it should have? If so, why? Did you give the students enough context
(background) before you discussed cases? What did you think the students got from the class?
Did you relate the class to the students’ prior knowledge? How did you feel about the class? Did
you learn something about your teaching? Self-regulated teachers feel better about themselves
because they learned something and accomplished their goals. Because reflection is so128
important, I will deal with it in more detail in the next subsection.
B. How to Become a Reflective Learner/Teacher.
An important part of being a expert law teacher is being a reflective learner/teacher. One
group of scholars has defined reflection as “an active thought process aimed at understanding and
subsequent improvement.” Furthermore, “reflection facilitates practioners to draw from their129
previous practice experience and to apply that which is relevant to new and unfamiliar practice
situations.” 130
Being a reflective learner/teacher starts at the metacognitive level, which is part of
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System 2. Metacognition involves “knowledge about one’s own knowledge and knowledge
about one’s own performance.” It allows “learners to understand and monitor their cognitive131
processes.” “Metacognition involves the understanding of how a task is performed.” Stated132 133
differently, ““Metacognition refers to awareness of one’s own knowledge— what one does and
doesn’t know—and one’s ability to understand, control, and manipulate one’s cognitive
processes. It includes knowing when and where to use particular strategies for learning and
problem solving as well as how and why to use specific strategies. Metacognition is the ability to
use prior knowledge to plan a strategy for approaching a learning task, take necessary steps to
problem solve, reflect on and evaluate results, and modify one’s approach as needed.” In sum,134
metacognition is one’s inner voice or inner critic, and an engaged thinker develops her inner
voice.
One way to develop this inner critic is to imagine how someone else would critique your
work. What would my dean say about my teaching? What would my colleagues say about my
teaching? What would my students say about my teaching?
Professor Dewitz has described metacognition in connection with reading: “Good readers
constantly monitor their reading, noting when comprehension is proceeding smoothly and when
difficulties occur. When comprehension breaks down, readers attempt to repair their problems
through rereading the text, summarizing, making inferences or consulting outside help.” 135
Professor Christensen has suggested that readers talk back to the text–question the text. For136
example, when reading a case, the reader should question a case’s reasoning and outcome and
think about alternative reasoning and outcomes (interrogate/debate the text), including drawing
inferences from the text. If you mark something in the text, be sure you know why you have
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highlighted that passage.
Metacognition consists of three parts: “The metacognitive component is comprised of
declarative [K]nowledge ([K]nowledge about oneself as a learner—the factors that influence
performance), procedural [K]nowledge ([K]nowledge about strategies and other procedures), and
conditional [K]nowledge ([K]nowledge of why and when to use a particular strategy).” 137
Metacognition can also be classified as to when it is used. “Reflection-in-action” concerns
changing behavior while in the midst of an action, while “reflection-on-action” comes after the
action. As Professor Schön has noted concerning reflection-in-action, “we can still make a138
difference to the situation at hand–our thinking serves to reshape what we are doing while we are
doing it.”139
A reflective law teacher monitors his teaching both while he is teaching and after class.
He is constantly aware of what is going on in class. He is aware if even a single student is having
trouble understanding. He is capable of going in a different direction if the class needs to. He
tries a different teaching technique if the class is having problems. After class, he reflects on the
effectiveness of the class. Did he get through to the students? Were his teaching techniques
effective? Does he need to try something else next time? Is the class ready to go on to a new
topic, or does the teacher need to reinforce an old topic?
For example, when I started teaching, I liked to use Ronald Dworkin’s idea of the “chain
novel” to teach how the common law developed. I told the students that a chain novel was140
where different authors wrote different chapters of a book. The author of the second chapter was
constrained by what the author of the first chapter did, and the author of the second chapter
constrained what later authors did. (While I was in college, I heard of an example of how several
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famous authors wrote a pornographic chain novel as a spoof and that the spoof fooled critics.) I
then analogized the chain novel to the development of the common law. This analogy fell flat
with the students; they just didn’t seem to grasp the concept of the chain novel. I tried to teach it
differently, but eventually I had to drop the chain novel as a way to teach the evolution of the
common law. If I had not been a reflective teacher, I might have kept teaching this example my
entire career with the students being confused.
Finally, reflective learners employ mental models to organize a domain. First, reflective
learners use mental models as a framework on which to hang their knowledge of a domain. As141
Colvin has pointed out, “A mental model not only enables remarkable recall, it helps top
performers understand new information better than average performers, since they see it not as an
isolated bit of data but as part of a large and comprehensible picture.” Second, reflective142
learners use mental models to help distinguish relevant from irrelevant information. Finally,143
reflective learners employ mental models to “project what will happen next.” Colvin has144
asserted, “Since a mental model is understanding of how your domain functions as a system, you
know how changes in the system’s inputs will affect the outputs–that is how the events that just
happened will create events that are about to happen.” 145
Part VThe Attitudes and Habits of Expert Law Teachers.
Effective teachers develop attitudes and habits. (This is similar to setting goals under the
ULM.) An example of an attitude is “I will be a student-oriented teacher, who communicates
effectively to her students.” A habit to help develop this attitude is “I will introduce the subject
of the class and its goals at the beginning and summarize the class at the end.” (Set the stage for
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the class and reinforce at the end.)146
Here is the attitude of an effective, student-focused teacher:
If I have the capability of speaking in an articulate or even inspiring manner, butdo not exhibit a suitable willingness to adapt my activities to your needs andinterests, then I am only making hollow noises. My teaching is not for show butto help you equip yourself with meaningful skills and purpose. If I exerciseunusual foresight and insight, and show extraordinary persistence with regard toboth, but do not bend my capabilities to your service, then my teaching meansnothing. It is you who should be enlarged in your heart, skills, compassion, andunderstanding, not me in my claims of teaching expertise. If I give everything Ihave to teaching—even sacrificing my own well-being—but do so for my ownpride and satisfaction rather than for your deliberate benefit, then I have reallydone nothing.147
In sum, the attitudes and habits of an effective teacher satisfy the factors of the ULM by focusing
working memory allocation, engaging prior knowledge, and providing motivation. 148
An expert teacher improves his teaching over a lifetime by setting growth goals
(attitude). For example, a law professor could focus on improving a couple of aspects of149
teaching every semester. For instance, one semester a teacher could concentrate on using
multimedia materials better in the classroom, while in another semester the teacher could work
on dealing with students individually. Also, doing scholarship helps expert teachers grow
because it increases their [K]nowledge and helps them make connections.
Another way for law teachers to improve their teaching is to keep a journal about their
teaching experiences (habit). Educators recommend that self-regulated learners keep a journal,
and the same is true for expert teachers. Professor Hess has written,
By writing regularly in a journal, (for example, once a week for a half-hour orafter each class for ten minutes) teachers can develop the habit of reflection andreap many benefits of reflective practice. Journals can serve as a useful device forcreating a comprehensive account of the teacher’s experience, recording ideas,setting goals, and planning instruction. Journal writing helps teachers to clarify
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their assumptions and theories about teaching and learning, to evaluate theeffectiveness of instructional practices, and to identify alternative methods to usein the future. Teachers can use journals to analyze problems and to work throughthe strong emotions that accompany teaching. Journals can be a vehicle forteachers to integrate their personal and professional selves and to engage in alifelong, reflective learning process. 150
Similarly, reflective teachers observe others teach and invite other teachers to critique their
teaching.151
Expert teachers develop the habit of employing their skills across domains (domain
transfer). Professor Halpern describes the process of developing domain-transfer skills: “When
critical-thinking skills are taught so that they transfer appropriately and spontaneously, students
learn to actively focus on the structure of problems or arguments so the underlying characteristics
become salient, instead of the domain-specific surface characteristics.” Stated more simply:152
domain transfer is applying existing skills to a new situation; it is an analogical skill. “The key153
to this process “involves the ability of external cues to trigger retrieval processes in long-term
memory, so information about a thinking skill can move into working memory, where it can be
consciously considered.” This hinges upon how the skill was originally learned, how154
information is stored in long term-memory, and how it was used. “Information that is155
associated with material being learned can function as an effective retrieval cue when the
learning is completed.” One can effectively organize material in long-term memory by156
developing “interconnected knowledge structures” (schemas)–relating concepts to other
concepts. Professor Kowalski writes, “The more schemas a person has available for157
comparison, the better a pervasive schematic can illuminate the differences between patterns in
situations, training the brain to search for knowledge that can be generalized and applied to solve
19
a new problem. Therefore, because human beings tie their learning to very specific patterns, any
solution to the transfer problem in law school must involve the search for highly inclusive meta-
schematics that can span multiple contexts, as well as stimulate students to access those cognitive
maps through learner motivation and metacognitive strategies.” The following cognitive areas158
are transferable: knowledge (substantive law), skills, concepts, attitudes, principles, and
dispositions.159
Halpern uses sunk costs–“The general idea . . . that prior investments are not relevant to
decisions about future costs”–as an example. She writes, “The goal of transferable thinking160
skills would be achieved if students recognize sunk-costs arguments when they are being made in
totally different settings and can apply what has been learned about these arguments in the new
settings.” Her first example of a sunk cost is a friend who is investing $500 to repair a beat-up,161
old car, which he has already “sunk” a lot of money into. Under the sunk-cost theory, the
previous investment is irrelevant. A creative thinker would then be able to transfer sunk-cost
concepts to dissimilar situations, such as Congress spending additional money on a defective
missile system, which it has already spent millions on, or a man marrying a girlfriend because
they have already spent so much time together.
Teachers can develop their domain-transfer skills in several ways. First, when you are
reading, think about the ways what you are reading relates to other concepts, question the text,
and think of alternatives. Similarly, when reading a case, think about how that case relates to
other relevant cases and critique the reasoning. Likewise, charting or diagraming an organization
helps you remember it. Finally, Halpern suggests using authentic materials (materials that are
similar to real world situations) to aid transfer.162
20
Examples of domain transfer in the law would be transferring concepts of fairness from
tort law to contracts law or transferring concepts of federalism to choice of law. The transfer
could also be transferring a method of solving a property problem to a contracts problem.
Likewise, applying principles from statutes and cases to drafting contracts is transfer. 163
Finally, using a teaching technique from one area in another area is transfer.
Professor Wegner has asserted, “At the end of the day, however, engagement with
teaching is essential in order to engage students.” An engaged teacher has an enthusiastic164
attitude about teaching. Engaged teachers study their areas of expertise, as well as how to be
better teachers. They read articles on legal education, and they attend teaching conferences.
They seek feedback on their teaching. Engaged teachers critically read their student evaluations.
Expert teachers develop the attitude that “I will motivate my students” because, as noted
in Part II, motivation is one of the keys to effective use of working memory under the ULM. In
neurobiological terms, “a student’s working memory must be allocated to the working task.” 165
The first key to motivating students, as noted above, is to be an enthusiastic teacher. If the
teacher is bored with the material, the student will be, too. Moreover, students become
motivated when they attribute their success to their efforts. Teachers facilitate this through166
frequent feedback. Expert teachers also make learning “visible,” and they have deliberate167
discussions with students about their self-efficacy. Likewise, expert teachers encourage168
students to meet with them frequently.
Setting educational goals is a habit that motivates students; “Goals motivate their own169
attainment.” Expert teachers set out their goals before the semester and before each class, and170
they evaluate whether they have attained those goals. As Best Practices has stated, “Students171
21
are more motivated to learn as part of a community of learners if they understand the long term
and intermediate objectives of the program of instruction. Learning is also enhanced when
students understand why certain instructional and assessment methods are employed. It is
especially important that new law students understand that the development of professional
expertise is the ultimate objective and that it will take time and hard work to achieve it.” In172
other words, students learn better when they have learning goals, rather than goals of just getting
through the class or a good grade. Likewise, “the higher the goal that is set for the173
performance, the higher the performance.” Of course, the teacher must convince the students174
that they can attain the goal.175
Expert teachers motivate their students to become engaged and active learners in the
classroom. They realize that learning requires attention and effort so they help their students
develop these skills, just sitting in class and paying minimal attention is useless. They help176
their students chunk their knowledge and make connections. They warn their students against
multitasking because multitasking affects the slots available in working memory. In other177
words, students shouldn’t surf the net or daydream during class or allow distractions when
studying.
Expert teachers employ the habit of focusing “on specific steps of instructional strategy”
and developing fluency with that strategy, and making adaptions to that strategy. Expert law178
teachers use a variety of teaching strategies in each class. A variety of teaching approaches179
helps keep students engaged and focuses their attention. This includes incorporating experiential
techniques; law students learn doctrine better when they apply that doctrine. Teachers should also
use multi-modal techniques–“learning material through multiple means, such as reading, listening,
22
writing, practicing, and viewing images.” For example, teachers can discuss causes of action180
and defenses then diagram them on the board or using Powerpoint. Doctrinal teachers can also181
add drafting skills to their classes, such as having students draft contract clauses in Contracts or
interrogatories at the end of a unit on Products Liability.
Expert teachers have the habit of including context-based teaching in their classrooms
because context helps create connections. Professor Maranville has explained why context-based
teaching is important: “First, students are more interested in learning when the information they
are studying is placed in a context they care about. Second, when teachers provide context for
their students, they increase the likelihood that students will understand the information. Third,
and especially significant for the law school context, in learning information, we may organize
and store it in memory differently for the purpose of studying for a test than we do in order to
retrieve it for legal practice.” In addition, creating context aids domain-transfer skills, which is182
also an important skill for law students. “The seemingly obvious solution to [improving]183
transfer would be to have students use their knowledge in situations where it will need to be used
in the real world.”184
Consequently, legal education needs more real world experiences. Clinics, skills185
courses, simulations, and externships are the large-scale ways of doing this. On the micro-level,
one way to incorporate context-based learning into doctrinal classes is to use case files, which
take a case from the initial client interview to the appellate decision. Another way is to use
problem-solving exercises. A final way is to help students think in a role, such as prosecutor,
defense attorney, judge, or contract drafter. Under the ULM, playing a role helps focus the186
student’s working memory (attention), and it helps the students transform the material.187
23
Another part of context is what a student already knows. Engaging a student’s existing
knowledge and employing it creates connections and helps develop reflective thinkers.188
Expert teachers have the habit of giving their students frequent feedback and
assessment. Remember that evaluation is the last element of Bloom’s taxonomy. Some legal189 190
educators believe that assessment is the most important part of learning: “Assessment methods
and requirements probably have a greater influence on how and what students learn than any other
single factor. This influence may well be of greater importance than the impact of teaching
materials.” However, too often, law students receive feedback only after they take their191
semester finals, and this assessment often doesn’t match what they were taught in class. In192
addition, law teachers rarely test for the validity, reliability, or fairness of their exams. The193
authors of Best Practices state,
Effective assessment exhibits qualities of validity, reliability, and fairness. Validity means that an assessment tool must accomplish the purpose for which itwas intended. Reliability means the test or measuring procedure yields the sameresults on repeated trials. A single do-or-die final essay exam given under timepressure at the end of the semester fails all three criteria. It is neither valid, norreliable, nor fair.194
Law teachers should use formative, rather than just summative, assessment. Learning
should be a journey, not a destination. Formative assessment is used during learning with
feedback at several points in the course, while summative assessment is used after instruction
(i.e., the end of semester law school exam). Formative assessment helps students learn in steps;195
it makes learning a process, not a product. As two professors have declared, “committed practice,
followed by constructive feedback followed by more committed practice is ‘a recipe for
success.’” Feedback helps students see they are progressing to their goals, and it helps them196
24
develop the ability to provide feedback for themselves. Formative assessment helps students197
attend to learning, which helps short term memory, and it helps long-term memory by
repetition. It also helps students focus on learning goals. Finally, formative assessment198 199
creates connections:
Assessment fosters creating these connected patterns by requiring students to connect andcombine information and skills they are learning. Asking students to compare and contrastdiscrete concepts, solve problems, transfer knowledge to new contexts and situations,write essays, demonstrate skills and other forms of “open-ended” assignments allowstudents to engage in problem-solving and critical thinking that underlies the constructionof larger knowledge structures in memory and the creation of new connections.200
To accomplish the above, teachers should use a variety of assessment devices: problem-
solving exercises, short papers, longer papers, in-term exams, end of the semester exams,
appraisal of in-class performance, oral exams, multiple choice exams, essay exams, videotaping,
assessment by practicing attorneys, and team-work exercises and assessment. Be innovative:201
how about a one minute in-class paper?202
There are several other requirements for effective assessment. First, the teacher should be
clear about the assessment’s goal. Second, the assessment tool should be valid and reliable–it203
should allow “the teacher to draw inferences about the matters that the test purports to assess,”
and “it should it should accurately rate those who have learned as having learned and those who
have not learned as having not learned.” Third, the assessment should inform students of their204
learning and professional development. For example, instead of letter grades, the teacher can205
use categories, such as “limited proficiency,” “basic competence,” “intermediate competence,”
and “advanced proficiency.” Professor Hess states a different, but equally important, set of206
requirements: “Effective formative feedback to students has four characteristics: specific (based
25
on explicit criteria); positive (identifies student strengths); corrective (points out weaknesses and
strategies for improvement); and timely (before the next assessment).” 207
An expert teacher employs think-aloud techniques. Think-aloud exercises help students
develop problem-solving skills and come up with creative answers. In a typical think-aloud
exercise, the student “talks through” a problem (hypothetical) with his teacher or another
person. A student should ask himself questions during the think-aloud process to help develop208
his reflective skills. A think aloud forces the student to verbalize all the steps in the problem-209
solving process. Think aloud may reflect what is being attended to in working memory, and this
aids recall. It also helps students build step-by-step strategies to solve problems. Furthermore,210
it also helps students to develop the ability to deal with new types of problems, which is vital in
practice. Professors Schwartz and Riebe have several think-aloud exercises in their Contracts
book. 211
Part VIWhat Expert Law Teachers Teach.
The first goal of any expert law teacher should be to help their students become self-
regulating and reflective learners. Teaching students how to learn is just as important as212
teaching students substance because lawyers must be life-long learners. While learning self-213
regulation and reflection can be difficult for students, “coaches” (law professors) can help
students develop metacognitive skills. “A coach is usually someone whose relationship with214
the individual allows them to give honest and unbiased assessments of the individual’s
performance and whose knowledge in the field allows them to choose or design practice activities
that will be most effective at helping the subject move to higher and higher levels of skill.”215
26
To begin, an expert teacher helps students develop metacognitive skills–“thinking about
one’s own thinking.” As Professor Andrews has stated, “Law students must learn how to self-216
assess both their own study habits and the level of their knowledge, eventually learning to assess
whether they are at the mastery level.” Self-monitoring significantly enhances learning217
outcomes. One way to develop reflective learners is to ask questions that cause students to218
reflect on what they have learned. Another way is to require that students keep a journal219
concerning their learning experiences; this helps them reinforce long-term memory and create220
connections. Of course, while one teacher in one class cannot completely develop expert learners,
they can help them along the road to mastery.
A teacher should instill attitudes and habits in his students. For example, one attitude to
instill in students in a legal writing class is “to be reader-oriented writers.” One way for students
to develop this attitude is to adopt the habit of carefully editing their work while putting
themselves in the shoes of the reader.
An expert teacher should give their students study habits. As noted above, repetition helps
create long-term memory. Extended repetition is necessary for retrieval, at least four221
repetitions each at least once within a day for a final exam. Consequently, I believe that law222
students spend too much time preparing for class and not enough time reflecting on what they
have learned. We were told in law school that we should spend three hours of study for each
classroom hour, which is still good advice. More importantly, I would advise law students to
spend 1/3rd of their time preparing for class, 1/3rd of their time reflecting on what they learned in
class (usually the same day as the class), and 1/3 of their time synthesizing the materials.223
Similarly, paraphrasing aids storage and retrieval from long-term memory. Humans
27
remember things better in long-term memory when it is altered in the memory (deep versus
surface learning). Thus, a teacher should advise their students to rewrite that day’s notes every224
evening. Similarly, students should synthesize the materials themselves rather than relying on
commercial outlines. Likewise, having the students create graphical organizers, such as “flow225
charts that depict logical flows in the analytical process,” “concept maps that visually express the
concepts among the ideas under study,” and “deeply structured course outlines that the
hierarchical relations among the concepts being studied” helps retention in long-term memory and
making connections. Almost anything that forces the students to restate ideas and concepts will226
aid learning.
An expert teacher encourages her students to work together; students can learn from227
each other. Students have formed studies groups for many years, but are these study groups as
effective as they can be? Study groups generally help their members prepare for class and review
for exams. Yet, there is much more that study groups can do. They can serve as a way that
students can improve their critical skills. Study groups or even just two students can criticize
cases, do problem-solving exercises, and give each other hypotheticals (think-aloud exercises). In
other words, study groups can help students become self-regulated learners. Students can also
interact using Twitter or text messaging. Since many students Twitter, they might consider this
fun, rather than work.
Expert teachers teach their students how to critique the work of others, thus helping them
be able to critique their own work. For example, Professor Ruskell describes the method he uses:
For the past few years, I have taught several law classes using a “writers’workshop” format (Contractual Drafting, Water Law, Law and Literature, and ArtLaw). As part of the class, I require students to turn in a draft of their final papers
28
or a particular contract, and I ask the other students to read the work and provide atleast one type-written page of comments (aside from anything they might writedirectly on the text). They also come to the next class prepared to discuss thework.228
A law teacher should not just teach the “cognitive apprenticeship,” which focuses on
expert knowledge and modes of thinking, usually using the Socratic/case method. She should229
also teach how that knowledge applies to facts–problem solving. Problem solving is “the230
ability to combine previously learned principles, procedures, declarative knowledge, and cognitive
strategies in a unique way within a domain of content to solve previously unencountered
problems.” Problem solving is a good teaching tool because problem solving requires active231
participation (not just observation), it challenges students to develop legal skills in context rather
than relying on knowing legal rules, and it facilitates self-reflective learning. 232
Lawyers are problem solvers. Legal problem solving often “involves identifying and
evaluating the analytical arguments reasonable lawyers would make with respect to the particular
set of legal issues presented by a fact pattern and then predicting how a court would assess those
arguments and resolve each issue.” A client comes to an attorney with a specific problem that233
needs a practical legal solution, not an argument on concerning which rule is best under a law and
economics approach. Teachers also need to teach problem-solving skills (miniskills) in addition
to case analysis: rule-based reasoning (deductive), analogical reasoning, distinguishing cases, and
synthesis (inductive) reasoning. Using problem-solving exercises helps students learn better; it234
provides repetitions that strengthens long-term memory, it furnishes variety keeping students
better engaged and attended, it forces students to process material creating larger chunks and
connections, it helps students to develop the ability to transform knowledge, and it helps develop
29
domain-transfer skills.
In addition, education researchers distinguish between “declarative” Knowledge and
“procedural” Knowledge. Declarative Knowledge is “what we commonly think of as facts and235
concepts” (“Knowledge what”), while procedural Knowledge is “behavior,” both muscle
movements and cognitive thinking (“Knowledge how”).” More specifically, “Procedural236
[K]nowledge refers to knowing how to complete a task, including knowing different methods of
completing the task and when to use different procedures.” Traditional law school teaching is237
good at developing declarative Knowledge, but problem solving and other skills training is
necessary to develop procedural Knowledge. Students cannot master the law without procedural
learning.
Procedural Knowledge produces action. Declarative Knowledge and procedural238
Knowledge have an if-then relationship–“if something is present do something.” This if-then239
relationship is the essence of legal problem solving–lawyers “develop chains of action in response
to certain states of the world (conditions) that move to alternative outcomes to acceptable
results.” Repetition of the if-then chain (problem solving) facilitates speed and accuracy of240
learning because repetition increases neural firing speed, as well as domain-transfer skills. 241
This, in turn, develops automaticity, which increases the speed of an action since these automatic
actions no longer need attention in the working memory.242
Finally, problem solving exercises help the long-term memory link chunks into larger
knowledge networks arranged hierarchically (schemas), which are necessary for complex
thinking.243
It is often better for teachers to use worked examples or guided practice before students
30
solve problems on their own, so that they can see the proper approach. In other words, they244
should explicitly expose their own thought processes to the students because students need to245
understand the “mental processing necessary to perform the observable tasks.” In addition,246
students often use a trial and error problem-solving strategy, rather than the proper procedural
chain, and when they do so, they will stick with the trial and error approach in the future. In247
addition, hands on learning should be reinforced by follow-up practice or review so that the hands
on learning will be reinforced in long-term memory (so it won’t “decay”).248
Experts teachers help their students develop step-by-step processes to problem solve,
analyze legal materials, and write up analyzes. Students need efficient organizational systems that
help them link and group ideas (create chunks and schemas). For example, a legal writing249
professor should give his students a paradigm for small-scale organization. Similarly, a skills
professor should give her student a step-by-step method for problem solving.
Unlike the Socratic/case method, which seems to hide the thinking process behind legal
reasoning, law teachers need to teach skills explicitly. As one education specialist has asserted,250
“Thinking skills need to be explicitly and consciously taught and then used with many types of
examples so that the skill aspect and its appropriate use are clarified and emphasized.” For251
example, when teaching issue spotting have you ever told your students, “The key to issue
spotting is the ability to see connections between authority (including policy) and facts in complex
settings”? Among the miniskills that law teachers need to teach explicitly are legal reading,252
case analysis, rule-based reasoning (deductive or syllogistic reasoning), analogical reasoning
(comparisons), distinguishing cases (the opposite of reasoning by analogy), deductive reasoning
(synthesis), and policy-based reasoning. As Professor Niedwiecki has written, explicitly learning
31
these miniskills helps students transfer them to new situations. In addition, the students need to253
be drilled and drilled in these skills. 254
For example, one law teacher has come up with a creative way to teach skills explicitly.
She describes the class as:
The basic plan involves an in-class brief that the class works on together, piece bypiece, including thinking. We do one portion of the thinking or writing processeach week in class as a group, discuss it, and then the students do the same on theirown with a different “out-of-class” problem. The goal is to force students toarticulate the thinking that is often done alone and unconsciously, discuss it withother students, and at the same time see other students’ thinking processes. Working and discussing together to create one in-class product, the studentsbecome more consciously aware of the thinking process.255
Expert teachers also teach their students to synthesize materials. Synthesizing materials
helps law students learn better. Two learning psychologists have noted, “In particular, students
may benefit conceptually from learning tasks that promote the construction of a situation model,
whereas tasks that can be performed with a more superficial representation of the text, such as
using a textbase, [such as a single treatise] would not lead to better understanding. This distinction
is consistent with the idea that the construction of mental models is the key to students' deeper
understanding of subject matter.” These authors distinguished “between knowledge-telling and256
knowledge-transforming when students write essays. Telling is regarded as a passive transfer of
information from text to paper, whereas transformation is regarded as a more active and
constructive process in which the writer relates the contents of sources in new ways by making
novel connections within source material as well as connections to the reader's knowledge.
Knowledge-telling thus likely involves a relatively superficial interaction with the textbase,
whereas knowledge transforming may involve a more conceptual interaction with the writer’s
32
situation model of the text contents.” They concluded: The results suggest “that in order for257
students to gain a deeper understanding of the subject matter, writing tasks must require
knowledge-transforming and not just knowledge-telling. One way to achieve this, as we have
demonstrated, is to give students access to a variety of sources, and a specific argument writing
task, that requires them to construct their own take on the information they read.” For example,258
a contracts professor could have her students synthesize the materials on the parole evidence rule
from at least three different treatises or encyclopedias. Similarly, the teacher could have the
students synthesize several cases on consideration.
As was true for expert teachers, developing domain transfer skills is important for law
students. Professor Kowalski has asserted, “‘Transfer of learning’ is at the very essence of what
lawyers do every day.” According to Kowalski, (1) transfer requires a large knowledge base in259
several areas of study, including both rote and deep understanding; (2) students need practice,
drill, and time to incubate in order to build their ability to transfer; and (3) successful transfer is
largely dependent on the student’s own motivations and attitudes toward learning, as well as
metacognition about his own learning process and how it works.”260
From the meta-level, teachers can develop transfer skills by training students “to see that
all of their courses, as well as law practice, call for them to be good advocates, to apply formal
legal analysis to problems they face, and so on, [so that] they are more likely to anticipate
applications for their learning and to draw from past experience in new situations.” Another261
way to develop transfer skills with a new task is to determine what skills are involved including
the details, what resources are needed, and how this task relates to existing knowledge. 262
Moreover, transfer is aided by understanding purpose, roles, and goals. Professors can also263
33
employ questions to students that serve as cues for students to draw on existing knowledge. 264
Finally, reflecting on an area will make transfer of knowledge and skills of that area to another
domain easier.
Legal writing professors could do a simple transfer exercise by asking students how
writing persuasive point headings are like writing persuasive questions presented. Another
transfer exercise would be to have students write a summary judgment brief then change it into an
appellate brief. A further example of transfer would be to have students transfer a principle they
learned in Legal Ethics to an ethics problem in Corporations. Likewise, a student could transfer
skills learned in writing an objective memorandum to exams. Similarly, a student could take a
deposition or write interrogatories in a Corporations class. A harder example of transfer is to have
students transfer a learning strategy from one course to a very different course, such as from
micro-economics to contracts. Of course, the ultimate goal is for students to be able to transfer
knowledge and skills learned in law school to law practice.
Creativity is also part of the legal thinking process, and expert teachers teach their265
students how to be creative. As Professor Halpern has averred, a twenty-first century worker must
be “someone who can carry out multistep operations, manipulate abstract and complex symbols
and ideas, efficiently acquire new information, and remain flexible enough to recognize the need
for continuing change and new paradigms for lifelong learning.” In college, I learned a two-266
step approach to creativity. First, “brainstorm” to come up with as many ideas as possible with
out being critical in any way. Second, criticize the results. For example, think about as many uses
for a clothes line as possible, then discuss which of those uses are practical and useful.
Another form of creative thinking is lateral thinking–thinking outside the box. The267
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creative thinker sees things no one else sees. He steps outside the confines of logic (logic can
only take us so far) and the protocols of a field to find a better answer. He is not stopped by the
difficulty of a problem, nor the fact that others say it can’t be done.
Finally, expert teachers serve as professional and ethical role models for their students. 268
They should teach their students ethics, and they should help them become professionals. As269
Best Practices has asserted, “Academic responsibility should be taken seriously by everyone at the
school, and students should be expected to conduct themselves as professionals from the moment
they enter law school guided by a student code of professionalism. A similar code of
professionalism should apply to faculty and staff.”270
Fortunately, there are a number of sources that can provide law teachers ideas and
materials for teaching skills and using new approaches to legal education. First, Carolina
Academic Press has published a series of case books, with each book containing a multitude of
practical exercises. Speaking of one of the books in this series, MICHAEL HUNTER SCHWARTZ271
& DENISE RIEBE, CONTRACTS AND PRACTICE: A CONTEXT AND PRACTICE CASEBOOK (2009),
Professor Stuckey has written:
It is the first law school textbook I’ve seen where it is obvious thatthe authors really want to help students understand what they aresupposed to be learning in the course. Right up front, the authorstell students the learning objectives of the course. They also explainthe governing principles of contract law, generally at the beginningof the book, and more specifically at the beginning of each chapter. They even use graphics to give students a visual sense of theconcepts of contract law and their relation to each other. There isno hiding the ball in this book. Students will know where they areand where they are going–and why.272
He added, “The book is not only designed to help students develop their traditional case reading
35
and analytical skills; it will also help students study and practice their problem-solving skills in
contexts that lawyers might encounter in practice.”
Similarly, Lexis/Nexis has a series of supplementary texts, the Skills and Values series,
that contain lots of problem-solving exercises. As one reviewer wrote concerning Discovery273
Practice by David I.C. Thomson (Lexis/Nexis 2010), which is part of the series:
Thomson organizes the book around each of the major discovery devices,including how to answer discover. In each chapter, he gives an excellentintroduction to each topic, presents the federal rules, then has exercises applyingthe topic of that chapter. There are also on-line materials, which supplement thehard-bound ones. Each chapter relates to a products liability problem at the end ofthe book, and they require students to write interrogatories, respond tointerrogatories, etc. . . .
There is a wealth of information in each chapter concerning discovery techniques,strategy for using that technique, and the ethics of discovery. The informationcontained concisely here would take years for a litigator to learn in practice. I amespecially impressed by the great amount of strategy advice, as well as theconcentration on the ethics of discovery.
I highly recommend this book. This book can be used as a text for a discoverycourse or as a supplement to a civil procedure class, a pretrial litigation class, or atrial practice course. It would also be of great value to practitioners who were notlucky enough to have had someone like Professor Thomson in law school.274
The Institute for Law Teaching and Learning has yearly conferences on law teaching,275
and they publish The Law Teacher, which has many articles on how to improve teaching. 276
Educating Tomorrow’s Lawyer’s (an initiative of the Institute for the Advancement of the
American Legal System) “is dedicated to advancing legal education that trains new lawyers to the
highest standards of competence and professionalism.” They have a very useful website, which277
includes course portfolios by expert teachers, teaching strategies (assessment/exams/assignments,
cognitive research: applications, cooperative learning, simulations, hybrid/blended/on-line
36
learning, integrating technology, learning theories: applications, rubrics), a blog, and voices from
the field. Finally, the Center for Excellence in Teaching at Albany Law School sponsors278
conferences, and they have a helpful website. In addition, professional law teaching279
organizations like the Legal Writing Institute, the Association of Legal Writing Directors, and280 281
the Clinical Legal Education Association have frequent conferences that encompass skills282
teaching and legal education.
There are also several blogs on legal education, including the Legal Skills Prof Blog, the283
Legal Writing Prof Blog, Law Schooled, Best Practices for Legal Education, Law School284 285 286
Innovation, Law School 2.0, and the Legal Whiteboard. 287 288 289
To conclude this section, let’s imagine how an expert teacher might teach a unit (several
classes) on personal jurisdiction in a civil procedure class. First, of course, she would spend
considerable time setting up the goals and strategies of the class and preparing for the class. She
would also assign the students readings or other tasks for the unit. At the beginning of the first
class, she would introduce the subject, including the goals of the unit. Next, she could go over
three key cases, using a Socratic teaching approach. The professor might verbalize her thinking
process when analyzing the first case, then let the students analyze the other two cases. Then,290
she could have the class synthesize the law of personal jurisdiction from the three cases. Next,
she could demonstrate a problem-solving exercise applying that synthesis to a set of facts,
verbalizing her mental steps in the problem-solving process. She could then assign the students to
do problem-solving exercises before the next class, then go over them in class. Subsequently, she
might assign the students to read the personal jurisdiction chapter in a civil procedure treatise and
have a class discussion and further synthesis using that reading. The class discussion could291
37
include the analysis of several hypotheticals and litigation strategy and ethics concerning personal
jurisdiction. The students could follow up on this with discussions in their study groups. Finally,
she might have the students write a short paper that brings together what they have learned or
create a flow chart on personal jurisdiction. She could even have a class debate that applies the
law on personal jurisdiction.
Conclusion
One law professor has described how she became a master teacher:
In my 18 years teaching Civil Procedure to first-year law students, I haveexperimented with different forms of instruction to help students learn not only thelaw of procedure but also the skills necessary to succeed in law school and inpractice. I have used written essays, group exercises, pleading drafting, individualconferences, practice motion oral arguments and mock exams. I have workedindividually with first-year students in academic trouble. I formed a summeracademic support program in which I teach both the law and legal study skills to asmall group of incoming law students. I have discovered a great deal about theneeds of beginning law students.292
Being an expert teacher does not mean that the teacher adopt a single teaching method;
there are many different types of expert teachers. Nevertheless, being an expert teacher requires
that the teacher be an engaged teacher, a self-regulated teacher, and a reflective learner/teacher.
38
1. ROBERT J. MARZANO ET.AL, BECOMING A REFLECTIVE TEACHER 1 (2012).
2. Professor Burgess has argued, “One of the biggest obstacles to meeting best practices inteaching is that law professors are traditionally given no formal instruction on teaching andlearning theories. Additionally, many law schools do not offer significant teaching mentorshipprograms, especially with mentors who have been trained in the art and science of teaching.” Hillary Burgess, The Challenges of ‘Innovative’ Teaching, 17/2 THE LAW TEACHER 1, 1 (2011);see also Samira Guyot, Learning as Top Priority in the Law School Classroom, 17/1 THE LAW
TEACHER 12, 12 (2010) (“When classes began, I was disheartened to find that few courses usedteaching methodologies or course formats driving learning in ways I knew to be effective. Nearlyevery class used basic lecture and exam structure.”).
3. DUANE F. SHELL ET.AL., THE UNIFIED LEARNING MODEL: HOW MOTIVATIONAL, COGNITIVE,AND NEUROBIOLOGICAL SCIENCES INFORM BEST TEACHING PRACTICES 179 (2010).
4. DORTHY H. EVENSEN ET. AL., DEVELOPING AN ASSESSMENT OF FIRST-YEAR LAW STUDENTS’CRITICAL CASE REASONING AND REASONING ABILITY: PHASE 2http://www.lsac.org/lsacresources/Research/GR/GR-08-02.pdf at1 (2008).
5. Paula Lustbader, From Dreams to Reality: The Emerging Role of Law School AcademicSupport Programs, 31 U.S.F. L. REV. 839, 855 (1997).
6. E.g., A. Benjamin Spencer, The Law School Critique in Historical Perspective,http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017114, at *2-3 (2012); New York StateBar Association, Report of the Task Force on the Future of the Legal Profession 38 (2011) (“Toomany law students and recent graduates are not as well prepared for the profession as they mightbe.”); Erwin Chemerinsky, Rethinking Legal Education, HARV. C.R.C.L. L.REV. 595, 595 (2008)(“[T]here is no way to reform legal education in any meaningful way without giving law studentsfar more experience in the practice of law.” Id. at 597); Michael Hunter Schwartz, Teaching Lawby Design: How Learning Theory and Instructional Design Can Inform and Reform LawTeaching, 38 SAN DIEGO L. REV. 347 (2001) (hereinafter Schwartz, Law Teaching); seegenerally WILLIAM M. SULLIVAN, ANNE COLBY, JUDITH WELCH WEGNER, LLOYD BOND & LEE
S. SHULMAN, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (Jossey-Bass2007) [hereinafter CARNEGIE REPORT].
7. Schwartz, Law Teaching, supra note , at 349.
8. ROY STUCKEY ET AL., BEST PRACTICES IN LEGAL EDUCATION 150 (2007) [hereinafter BEST
PRACTICES].
9. Nancy L. Schultz, How Do Lawyers Really Think? 42 J. LEG. EDUC. 57, 64 (1992).
10. Anthony Niedwiecki, Lawyers and Learning: A Metacognitive Approach to LegalEducation, 13 WIDENER L. REV. 33, 40 (2006); Michael Hunter Schwartz, Teaching LawStudents to be Self-Regulated Learners, 2003 MICH. ST. DCL L. REV. 447, 449-51 (2003)
39
[hereinafter Schwartz, Teaching Law Students].
11. Carol Andrews, Four Simple Lessons about the Needs of First-Year Law Students, 18/2 THE
LAW TEACHER 4, 4 (2012).
12. Hillary Burgess, Deepening the Discourse Using The Legal Mind’s Eye: Lessons fromNeuroscience and Psychology that Optimize Law School Learning, 29 QUINNIPIAC L. REV. 1, 3(2010) [hereinafter Burgess, Deepening the Discourse].
13. Jay Feinman & Marc Feldman, Pedagogy and Politics, 73 GEO. L.J. 875, 896-97 (1985); seealso GEOFF COLVIN, TALENT IS OVERRATED: WHAT REALLY SEPARATES WORLD-CLASS
PERFORMERS FROM EVERYBODY ELSE (2008). This is especially important since law schools arecurrently accepting students with lower indicators (LSAT and G.P.A.) because law schoolapplications have dropped.
14. Judith W. Wegner, Reframing Legal Education’s Wicked Problems, 61 RUTGERS L. REV.867, 938 (2009).
15. “Cognitivists explain learning by focusing on the development of cognitive structures andprocesses in the human brain.” Gerald F. Hess, Value of Variety: An Organizing Principle toEnhance Teaching and Learning, 3 ELON L. REV. 65, 67 (2011) [hereinafter Hess, Value ofVariety].
16. BEST PRACTICES, supra note , at 132.
17. Diane F. Halpern, Teaching Critical Thinking for Transfer across Domains: Dispositions,Skills, Structure Training, and Metacognitive Monitoring, 53 AM. PSYCH. 449, 451 (1998).
18. PAUL THAGARD, THE BRAIN AND THE MEANING OF LIFE 42-66 (2010). The brain has twomain functions: 1) “to take in and save information about the world from the senses,” and 2)“produce motor outputs that generate functional behaviors in the world.” SHELL ET.AL., supranote , at 8-9. The parts of the brain associated with learning are located mainly in the cortex. Id.at 7.
19. THAGARD, supra note , at 44 (quoting Steven Pinker). See also SHELL ET.AL., supra note , at8-9.
20. THAGARD, supra note , at 44. I will use synapse when I am referring to the connectionsbetween neurons. I will use connections in its more general meaning.
21. Id. at 44-45.
22. Id. at 45.
23. Id. at 46-50; SHELL ET.AL., supra note , at 12.
40
24. Id. at 10.
25. Id.
26. EDWIN SCOTT FRUEHWALD, LAW AND HUMAN BEHAVIOR: A STUDY IN BEHAVORIAL
BIOLOGY, NEUROSCIENCE, AND THE LAW 14-16 (2011); see also SHELL ET.AL., supra note , at103.
27. SHELL ET.AL., supra note , at 10.
28. SHELL ET.AL., supra note , at 7. In this book, Dr. Shell and his co-authors have produced aunified model of learning that synthesizes research on learning theory. As the authors assert,“What the ULM does is bring these disparate topics together under a single umbrella. Id. at 1.
Professor Pinker points out that “the brain changes when we learn.” STEVEN PINKER,THE BLANK SLATE: THE MODERN DENIAL OF HUMAN NATURE 85 (2002).
29. SHELL ET.AL., supra note , at 8.
30. Id. at 9.
31. Id.
32. Id. at 33.
33. Id. at 2. To avoid confusion, I will employ “Knowledge” when I am using the Shellmeaning, and “knowledge” when I am using the general meaning.
34. Id. at 10.
35. Id. at 3, 10-13. “Working memory does not have a clearly defined anatomical area. Itappears to be a collection of brain regions in the prefrontal cortex along with other structuressuch as the hippocampus.” Id. at 11.
36. Id. at 2, 19.
37. Id. at 11.
38. Id.
39. Id.
40. Id.
41. Id.
42. Id.
41
43. Id. at 27; see generally J. Scott Saults & Nelson Cohen, A Central Capacity Limit to theSimultaneous Storage of Visual and Auditory Arrays in Working Memory, 136 J. EXPER. PSYCH.,GEN. 663 (2007).
44. SHELL ET.AL., supra note , at 27. “Chunks dramatically expand working memorycapacity.” Id. at 28; see also Burgess, Deepening the Discourse, supra note , at 41 (“Whenstudents form connections between information in their long-term memory, they can chunk theentire schema into one memory slot.”).
45. SHELL ET.AL., supra note , at 27.
46. See supra note and accompanying text.
47. Id. at 22.
48. Id. at 21, 24.
49. Id. at 20.
50. Id. at 20, 29.
51. Id. at 12, 22.
52. Id. at 12.
53. Id.
54. Id.
55. Id.
56. Id. Pattern matching is usually not exact. Id. at 35.
57. Id. at 57.
58. Id. at 12.
59. Id.
60. Id. at 20.
61. Id. at 3, 13.
62. Id. at 66 (“Students may have all their working memory capacity available, but if they are notmotivated to focus their attention on the learning task, and allocate their capacity to that task,they likely will not learn anything.”).
42
63. Id. at 13.
64. Id.
65. Id. at 14.
66. Id. at 3. The ULM is a micro-level cognitive model. Id. at 65.
67. Repetition is much more than rote memorization or “drill and kill.” Id. at 181. Repetition ismost effective when there is variety in the repetition. Contextualizing also helps give variety torepetition. Id.
68. Id. at 14-15. These are self-explanatory, except for the last one. Concerning the last one theauthors state, “All neurons learn the same way and processing of the information. This does notmean that all students learn everything equally.” Id. at 15.
69. Id. at 16.
70. DANIEL KAHNEMAN, THINKING, FAST AND SLOW 46 (2011).
71. Id. at 46.
72. Id. at 31.
73. Id. at 20-21.
74. Id. at 41-46.
75. Id. at 45-46.
76. Halpern, supra note , at 452.
77. KAHNEMAN, supra note , at 40.
78. Id. at 238; see also MARZANO, supra note , at 7; COLVIN, supra note , at 61-2.
79. SHELL ET.AL., supra note , at 99.
80. KAHNEMAN, supra note , at 238.
81. Id.
82. BEST PRACTICES, supra note , at 142.
83. The 2011 Survey of Law Student Engagement found that “Forty percent of students felt theirlegal education had contributed ‘only some or very little to their acquisition of job or work-
43
related knowledge and skills.’” Karen Sloan, Students Happy with Law School Experience, withCaveats, NAT. L.J.(http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202538236462&slreturn=1) (Jan. 12,2012).
84. MARZANO, supra note , at 6-7; SHELL ET.AL., supra note , at 156-57.
85. MARZANO, supra note , at 6.
86. Id. at 7 (quoting K. Anders Ericsson et. al., Giftedness and Evidence for ReproduciblySuperior Performance: An Account Based on the Expert Performance Framework, 18 HIGH
ABILITY STUDIES 3, 24 (2007) [hereinafter Ericsson et. al., Expert Performance]; see alsoCOLVIN, supra note , at 63.
87. Ericsson et al., Expert Performance, supra note , at 24; see also SHELL ET.AL., supra note , at156.
88. MARZANO, supra note , at 7.
89. K. Anders Ericsson et, al., The Role of Deliberative Practice in the Acquisition of ExpertPerformance, 100 Psych. Rev. 363, 368 (1993).
90. Corie Rosen & Hillary Burgess, More than Merely Doing: Deliberate Practice, Feedback,and Academic Success, THE LEARNING CURVE 2, 4 (Spring 2010).
91. MARZANO, supra note , at 7.
92. Id.
93. COLVIN, supra note , at 67.
94. Id. (“There’s a reason why the world’s best golfers still go to teachers.”).
95. Id. at 69. (“Top performers repeat their practice activities to a stultifying extent.”).
96. Id. at 70.
97. Id. (“Deliberate practice is above all an effort of focus and concentration.”).
98. Id. at 71 (“After each repetition, we force ourselves to see–or get others to tell us–exactlywhat still isn’t right so we can repeat the most painful and difficult parts of what we’ve just done. Id. at 71-72.).
99. Being a self-regulated teacher satisfies the ULM.
44
100. Gerald F. Hess, The Legal Educator’s Guide to Periodicals on Teaching and Learning, 67UMKC L. REV. 367, 385 (1998).
101. Teaching Excellence in Adult Literacy, JUST WRITE GUIDE, https://teal.ed.gov/resources at* 29 (2012).
102. Halpern, supra note , at 452.
103. Schwartz, Teaching Law Students, supra note , at 472.
104. Id. at 453-54, 471.
105. Carol Tyler Fox, Introducing Law Students to Bloom’s Taxonomy, 18/2 THE LAW TEACHER
21, 21 (2012).
106. Id. at 21.
107. Schwartz, Teaching Law Students, supra note , at 454; see also COLVIN, supra note , at116-21 (Before the work, during the work, after the work).
108. Schwartz, Teaching Law Students, supra note , at 455.
109. Id. at 456.
110. Id.
111. Id.
112. Id.; see also SHELL ET.AL., supra note , at 74-76.
113. JUST WRITE GUIDE, supra note , at *29.
114. Positive emotions affect self-efficacy. SHELL ET.AL., supra note , at 75-76.
115. Id. at 76.
116. JUST WRITE GUIDE, supra note , at *30.
117. Id. at *33.
118. Schwartz, Teaching Law Students, supra note , at 457; see also COLVIN, supra note , at116-17 ([T]he poorest performers don’t set goals at all; they just slog through their work.”).
119. James Stratman posits that students understand more when they read with a “real worldpurpose” (as a judge, an advocate, etc.), rather than merely preparing for class. James F.Stratman, When Law Students Read Cases: Exploring Relations between Professional Legal
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Reasoning Roles and Problem Detection, 34 DISCOURSE PROCESSES 57 (2002). The same is truefor all types of thinking, including teaching.
120. Schwartz, Teaching Law Students, supra note , at 457; Peter Dewitz, Legal Education: AProblem of Learning from Text, 23 N.Y.U. L. REV. L. & SOC. CHANGE 225, 228 (1997) (Strategicreaders “set a purpose for reading, self-question, search for important information, makeinferences, summarize, and monitor the developing meaning.”). “Strategies help make explicitthe routines and techniques employed by effective learners so that all learners can be moreeffective.” JUST WRITE GUIDE, supra note , at *39.
121. Robert Sternberg et.al., A Prototype of Expert Teaching, 24 EDUC. RESEARCHER 9, 10(1995).
122. MARZANO, supra note , at 11.
123. See Christensen, Legal Reading, supra note , at 608; see also COLVIN, supra note , at 117([T]he best performers are focused on how they get better at some specific element of the work,just as a pianist may focus on improving a particular passage.”).
124. COLVIN, supra note , at 117.
125. Schwartz, Teaching Law Students, supra note , at 458.
126. Id. at 458-59.
127. Id. at 460-61.
128. Schwartz, Law Teaching, supra note , at 162; see also COLVIN, supra note , at 117 (“themost important self-regulatory skill that top performers use during their work is selfobservation.”).
129. JENNIFER YORK-BARR ET.AL., REFLECTIVE PRACTICE TO IMPROVE SCHOOLS: AN ACTION
GUIDE FOR EDUCATORS 4 (2d ed., 2006).
130. Marian Murphy et.al., Reflective Inquiry in Social Work Education, in HANDBOOK OF
REFLECTION AND REFLECTIVE INQUIRY: MAPPING A WAY OF KNOWING FOR PROFESSIONAL
REFLECTIVE INQUIRY 177 (N. Lyons ed., 2010).
131. P. J. Feltovich et. al, Studies of Expertise from Psychological Perspectives, in THE
CAMBRIDGE HANDBOOK OF EXPERTISE AND EXPERT PERFORMANCE 55 (K. Anders Ericsson et.al. eds., 2006).
132. JUST WRITE GUIDE, supra note , at *41.
133. Niedwiecki, supra note , at 42-43.
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134. JUST WRITE GUIDE, supra note , at *32.
135. Dewitz, supra note , at 229.
136. Leah M. Christensen, Legal Reading and Success in Law School: An Empirical Study, 30SEATTLE U. L. REV. 603, 609 (2007).
137. JUST WRITE GUIDE, supra note , at 30.
138. MARZANO, supra note , at 5.
139. DONALD A. SCHÖN, THE REFLECTIVE PRACTITIONER 26 (1987).
140. RONALD DWORKIN, LAW’S EMPIRE 228-32 (1986).
141. COLVIN, supra note , at 123.
142. Id.
143. Id. I have discerned that one reason novice law students fail is because they lack this skill.
144. Id. at 124.
145. Id.
146. SHELL ET.AL., supra note , at 129. Summarizing at the end of class helps the students retainthe material through repetition, and it helps students make connections. Id. at 151.
147. Teaching Philosophy Statement of Nelson P. Miller, 17/1 THE LAW TEACHER 7, 7 (2011).
148. SHELL ET.AL., supra note , at 116.
149. MARZANO, supra note , at 13.
150. Gerald F. Hess, Improving Teaching and Learning in Law School: Faculty DevelopmentResearch, Principles, and Programs, 12 WIDENER L. REV. 443, 454 (2006).
151. Sophie Sparrow, Are We the Teachers We Think We Are? Observing Others Teach–Lessonsfor the Teacher, 12/1 THE LAW TEACHER 3, 3 (2004); see also SHELL ET.AL., supra note , at 180.
152. Halpern, supra note , at 453.
153. Tonya Kowalski, True North: Navigating for the Transfer of Learning in Legal Education,51 SEATTLE U. L. REV. 51, 51, 79 (2010).
47
154. Halpern, supra note , at 453. The brain organizes information in data structures in long-term memory (“schemata”). Schwartz, Teaching Law Students, supra note , at 373 (“Thesestructures contain slots, theoretically organized like a card catalogue, for each of a countlessnumber of specific situations.”) Schemata store information, procedures, and subprocedures. Id.(Comparing schemata to computer programs.).
155. Halpern, supra note , at 453.
156. Id.
157. Id.; see also Kowalski, supra note , at 54.
158. Kowalski, supra note , at 55.
159. Id. at 65.
160. Halpern, supra note , at 453.
161. Id.
162. Id. at 454.
163. Schwartz, supra note , at 419.
164. Wegner, supra note , at 979.
165. SHELL ET.AL., supra note , at 115.
166. JUST WRITE GUIDE, supra note , at *28.
167. “Learning theory and research at every academic level tells us that meaningful feedbackabout a learner’s skill or knowledge is the connection which drives learning.” Guyot, supra note ,at 12.
168. JUST WRITE GUIDE, supra note , at *28, *30.
169. SHELL ET.AL., supra note , at 69.
170. Id. at 118.
171. Of course, the professor should share these goals with their students, preferably in writing.
172. BEST PRACTICES, supra note , at 130; see also Hess, Value of Variety, supra note , at 71(“Teachers should write learning objectives for courses they teach and for individual classsessions.”).
48
173. SHELL ET.AL., supra note , at 118-19. A student doesn’t even have to interested in thesubject or enjoy the learning if they have a learning goal. Id. For example, a student can hatestatistics, but can learn it if he has the goal of learning statistics so the can analyze research data. Id. So, the key is getting the student to see th learning goal. Id.
174. Id. at 69.
175. Id. at 121.
176. Professor Burgess presents a key point for classroom learning, “Working memory explainswhy students believe that they are learning when they attempt to focus simultaneously on emailand what the professor is saying. The student hears the information and can store it just longenough to follow along with the conversation, but forgets what was said quickly, and theinformation is gone forever.” Burgess, Deepening the Discourse, supra note , at 27.
177. KAHNEMAN. supra note , at 31-38; SHELL ET.AL., supra note , at 48 (“It’s a good choicewhen state legislatures pass laws concerning the use of cell phones while driving. If the cellphone conversation starts to demand working memory allocation, the driving may becomeunsafe.”).
178. MARZANO, supra note , at 14-15.
179. See generally Hess, Value of Variety, supra note , at 65.
180. Burgess, Deepening the Discourse, supra note , at 45; see also Hess, Value of Variety,supra note , at 81 (“Empirical research establishes the effectiveness of multiple-sense, activemethods of learning.”).
181. Kevin C. McMunigal, Diagraming Crimes, 12/1 THE LAW TEACHER 1, 1-2 (2004).
182. Deborah A. Maranville, Infusing Passion and Context into the Traditional Curriculumthrough Experiential Learning, 51 J. LEG. EDUC. 51, 56 (2001); see also Christensen, supra note, at 636-40.
183. SHELL ET.AL., supra note , at 52; see below notes - and accompanying text..
184. SHELL ET.AL., supra note , at 53. Professor Wegner has similarly written, “The emphasison engagement in¯complex practice places the focus where it should be, not inindividual¯practice skills. such as negotiation or even legal research, but instead emphasizes thepractice¯context in which multiple strategies, skills, and tools must be employed.” Wegner,supra note , at 884.
185. In addition, “Active learning and authentic experiences in which students are acting likelawyers enhance motivation and interest for most students.” Hess, Value of Variety, supra note ,at 82.
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186. Wegner, supra note , at 913.
187. James Stratman thinks that students understand more when they read with a “real worldpurpose” (as a judge, an advocate, etc.), rather than merely preparing for class. Stratman, supranote , at 57; see also Christensen, supra note , at 612-14, 634-636 (“Problem recognition rates forthe three real world-roles were consistently better than those for the class recitation task.” Id. at613). She added: “We can assign our students specific purposes (other than preparing for class)for which to read any given case. Id. at 636.
188. SHELL ET.AL., supra note , at 115; Schwartz, Law Teaching, supra note , at 375.
189. Professor Sparrow notes, “experts on learning tell us that the most effective learningenvironments are ‘assessment centered’ In those environments, students know what they areexpected to learn, understand the criteria used to evaluate their performance, have multiple andvaried opportunities to practice meeting performance criteria, and receive feedback on meetingthose criteria. They also learn how to use the feedback to improve their learning.” SophieSparrow, Taking a Small Step to More Assessments, 16/1 THE LAW TEACHER 1, 1 (2009); seealso KAHNEMAN, supra note , at 241.
190. SHELL ET.AL., supra note , at 141.
191. ALISON BONE, NATIONAL CENTRE FOR LEGAL EDUCATION, ENSURING SUCCESSFUL
ASSESSMENT 3 (Roger Burridge & Tracey Varnava eds., 1999). Similarly, Professor Wegner hascalled formative assessment “learning from experience.” Wegner, supra note , at 884.
192. BEST PRACTICES, supra note , at 236-39 (“In sum, except perhaps in legal writing andresearch courses, the current assessment practices used by most law teachers are abominable.” Id. at 239.). Professor Schwartz similarly points out that the traditional law school exam failsbecause it doesn’t test competency; since the goal of law schools is to graduate competentlawyers, that is what should be tested. Schwartz, Law Teaching, supra note , at 406. Likewise,he thinks that the failure to create several testing items for each learning objectives, as intraditional law school exams, affects the reliability of those exams. Id. at 407.
193. Schwartz, Law Teaching, supra note , at 408.
194. BEST PRACTICES, supra note , at 239; see also Hess, Value of Variety, supra note , at 87-88.
195. SHELL ET.AL., supra note , at 142-43; see also BEST PRACTICES, supra note , at 255 (“Theirpurpose is purely educational, and while they may be scored, they are not used to assign grades orrank students.”).
196. Rosen & Burgess, supra note , at 2.
197. SHELL ET.AL., supra note , at 124, 143; see also Hess, Value of Variety, supra note , at 87(Formative assessment provides students an opportunity to perform (for example, a practice
50
exam, paper draft, first attempt at an oral argument) and get feedback (e.g., a score sheet orcomments).”).
198. SHELL ET.AL., supra note , at 143-44.
199. Id. at 143.
200. Id. at 145.
201. Of course, which of these works best depends on the class. For example, oral exams mightbe unwieldy in large class, but an effective assessment device in skills classes or clinics.
202. BEST PRACTICES, supra note , at 258.
203. Id. at 240.
204. Id. at 241, 243.
205. Id. at 245.
206. Id. at 245-46.
207. Hess, Value of Variety, supra note , at 90.
208. MICHAEL HUNTER SCHWARTZ & DENISE RIEBE, CONTRACTS: A CONTEXT AND PRACTICE
CASEBOOK 71-20 (2009); see also Stefan H. Krieger & Serge Martinez, Performance Isn’tEverything: The Importance of Conceptual Competence in Outcome Assessment of ExperientialLearning, 19 CLINICAL L. REV. in press (2012); BRIAN P. COPPOLA, Progress in Practice: UsingConcepts from Motivational and Self-Regulated Learning Research to Improve ChemistryInstruction, in NEW DIRECTIONS FOR TEACHING AND LEARNING: UNDERSTANDING SELF-REGULATED LEARNING NO. 63, 89-90 (Paul R. Printrich ed., 1995).
209. JUST WRITE GUIDE, supra note , at 34.
210. SHELL ET.AL., supra note , at 23.
211. SCHWARTZ & RIEBE, supra note , at 720-30.
212. Professor Shell and his colleagues have declared, “that at its heart, the ULM is about self-regulation.” SHELL ET.AL., supra note , at 161. Similarly, Professor Niedwiecki has averred,“Lawyers never stop learning.” Niedwiecki, supra note , at 41. He has noted that students oftencome to law school lacking metacognitive skills: “1) they don’t know when a task is easy ordifficult; 2) they do not fully understand when they are confused or do not fully understand aparticular concept; 3) they do not always know how long some task may take and what they needto do; 4) they do not monitor the success of what they are doing by determining when they havestudied enough; 5) they do not always use all of the relevant information; 6) they often use step-
51
by-step approaches without thinking about why they used the particular approach; and 7) theyoften jump to preliminary conclusions that guide their complete analysis, even when theyultimately turn out to be incorrect.” Niedwiecki, supra note , at 45.
213. Professor Niedwiecki has argued, “The most effective learners are self-regulatinglearners because these adept learners are able to plan, monitor, and modify cognition at variousstages during knowledge acquisition.” Niedwiecki, supra note , at 44; see also Burgess,Deepening the Discourse, supra note , at 2 (“Professors must teach so that their students canretain their learning for a lifelong career in law.”).
214. MARZANO, supra note , at 8; see also Niedwiecki, supra note , at 62.
215. MARZANO, supra note , at 8. See also Wegner, supra note , at 934 (“‘Coaching’ byproviding guidance and feedback.”).
216. Schwartz, Law Teaching, supra note , at 376; see also Part IV, B above.
217. Andrews, supra note , at 5.
218. Schwartz, Teaching Law Students, supra note , at 480, 483.
219. SHELL ET.AL., supra note , at 135.
220. BEST PRACTICES, supra note , at 277.
221. SHELL ET.AL., supra note , at 24.
222. Id. at 24-25.
223. See also Andrews, supra note , at 4-5.
224. SHELL ET.AL., supra note , at 25-26. “ Any time working memory temporarily heldcontents, the result of that manipulation appears to be stored, at least into long-term memorypotentiation.” Id. at 26.
225. Burgess, Deepening the Discourse, supra note , at 37 (“This research would suggest thatthe processes of synthesizing cases and creating an outline helps the student store herunderstanding of the rule of law in long-term memory more effectively than reading acommercial outline. Although commercial outlines or other study aids can provide feedback asto whether students have accurately synthesized a rule, if students use them in lieu ofsynthesizing cases, their learning is likely to be more superficial and last for a shorter period oftime.”)
226. Schwartz, Law Teaching, supra note , at 377 (“Students learn new material better when it ispresented graphically, by way of hierarchy and flow charts.” Id. at 379.); see also Burgess,Deepening the Discourse, supra note , at 3 (“Because of the way the brain is designed, visual
52
aids increase efficient learning, deepen understanding, and enhance long-term retention.”). Thisis because “the visual function of short-term memory expands the verbal function of short-termmemory.” Id. at 29.
227. BEST PRACTICES, supra note , at 277.
228. Alex Rushkell, Teaching Student’s How to Evaluate a Written Work’s Quality, 18/1 THE
LAW TEACHER 7, 7 (2011).
229. THE CARNEGIE REPORT, supra note , at 28.
230. Concerning the first year of law school, BEST PRACTICES declared, “Context-basedinstruction, especially discussion of problems should be the prevalent method of instruction.” BEST PRACTICES, supra note , at 276. Professor Shell and his colleagues pointed out, “That’swhy pilots and physicians train with simulators.” SHELL ET.AL., supra note , at 139. Finally,Professor Wegner has noted the false dichotomy between theory and practice. Wegner, WickedProblems, supra note , at 969.
231. PATRICIA L. SMITH & TILLMAN J. RAGAN, INSTRUCTIONAL DESIGN 132 (2d ed. 1999); seealso SHELL ET.AL., supra note , at 54 (“One of the key processes of working memory is toconnect input in working memory storage together in different ways. This process of recognitionmay create a new organization of elements in working memory that triggers a pattern match.”).
232. Shirley Lung, The Problem Method: No Simple Solutions, 45 Williamette L. Rev. 743, 775(2009); see also Wegner, supra note , at 974-76.
233. Schwartz, Law Teaching, supra note, at 397.
234. As noted above, Professor Kahneman thinks that expertise requires the development ofmany miniskills. See supra notes - and accompanying text.
235. SHELL ET.AL., supra note , at 39-45.
236. Id. at 39. Professor Hess adds that “Declarative [K]nowledge is a prerequisite to moresophisticated types of learning.” Hess, Value of Variety, supra note , at 73.
237. Burgess, Deepening the Discourse, supra note , at 9. Professor Hess gives an example:“For example, procedural learning includes the sequence of questions appropriate to determinewhether evidence is admissible hearsay or the legal research steps to determine whether there is astatute or regulation on point.” Hess, Value of Variety, supra note , at 74.
238. SHELL ET.AL., supra note , at 43.
239. Id. at 43-44.
240. Id. at 45.
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241. Id. at 46-47.
242. Id. at 47-48. Automaticity is basically the same as Kahneman’s System 1.
243. Id. at 49.
244. Id. at 55, 120; see also Schwartz, Law Teaching, supra note , at 415-16. Professor Wegnercalls this “modeling”–making cognition visible. Wegner, supra note , at 934.
245. SHELL ET.AL., supra note , at 165.
246. Schwartz, Law Teaching, supra note , at 378.
247. SHELL ET.AL., supra note , at 55.
248. Id. at 55, 182. Colvin remarks that “Practice activities are worthless without usefulfeedback about the results.” COLVIN, supra note , at 118.
249. Burgess, Deepening the Discourse, supra note , at 33.
250. The Carnegie Report stressed the need for making analytical skills explicit. THE CARNEGIE
REPORT, supra note , at 11, 26; see also Nelson P. Miller & Bradley J. Charles, Meeting theCarnegie Report’s Challenge to Make Legal Analysis Explicit: Subsidiary Skills to the IRACFramework, 59 J. Leg. Educ. 192 (2009); Niedwiecki, supra note , at 58.
251. Halpern, supra note 12, at 454.
252. David Nadvorney & Deborah Zelesne, Teaching Issue Spotting Explicitly,” 16/1 THE LAW
TEACHER 4,4 (2009). This article also has other helpful advice, such as how to relate subissues.
253. Niedwiecki, supra note , at 61.
254. See KAHNEMAN, supra note , at 241.
255. Barbara Blumenfeld, Teaching Thinking and the Legal Creative Process, 18/1 THE LAW
TEACHER 3, 5-7 (2011).
256. Jennifer Wiley & James F. Voss, Constructing Arguments from Multiple Sources: Tasksthat Promoting Understanding and Not Just Memory for Text, 91 J. EDUC. PSYCH. 301, 301(1999).
257. Id.
258. Id. at 309.
259. Kowalski, supra note , at 52.
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260. Id. at 77.
261. Id. at 56 (We want the students to have “the capacity to transform the perception of lawschool from a collection of disparate courses to a continuum of thematically-related elements.”).
262. Id. at 58.
263. Professor Kowalski suggests that adopting altruistic, humanistic motives (serving justice,helping a client) can aid transfer. Id. at 58.
264. Id. at 58-59.
265. Blumenfeld, supra note , at 3. Colvin has declared, “Creativity and innovation may even bethe key to future economic prosperity of America and other developed countries, at leastaccording to one line of thinking.”). COLVIN, supra note , at 147.
266. Halpern, supra note , at 450.
267. See generally, EDWARD DE BONO, LATERAL THINKING CREATIVITY: STEP BY STEP (1970).
268. BEST PRACTICES, supra note , at 129 (“Law schools will be unable to instill a commitmentto professionalism in their students if a commitment to professionalism is not evident in thewords and conduct of the faculty, administration, and staff, especially the faculty.”)
269. The Carolina Academic Press: Context and Practice Series casebooks include “professionaldevelopment reflection questions” in each chapter.
270. BEST PRACTICES, supra note , at 277. Professor Wegner has asked, “Could the dynamics oflaw school classes be reshaped to move beyond the current culture of silence, passivity andunproductive competition to create a different kind of culture that fosters intrinsic motivation andin turn improves the deteriorating professionalism of the bar?” Wegner, Wicked Problems, supranote , at 939.
271. Carolina Academic Press, Context and Practice Series, athttp://www.cap-press.com/p/CAP.
272. Roy Stuckey, Contracts: A Context and Practice Casebook, 16/1 THE LAW TEACHER 3, 3(2009).
273. Lexis/Nexis, Skills & Values Series, athttp://www.lexisnexis.com/store/catalog/catalog.jsp?id=cat80154.
274. Review: Discovery Practice by David I.C. Thomson, Legal Skills Prof Blog athttp://lawprofessors.typepad.com/legal_skills/2012/01/review-discovery-practice-by-david-ic-thomson.html (January 12, 2012).
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275. Institute for Law Teaching and Learning, at http://lawteaching.org/index.php.
276. The Law Teacher, at http://lawteaching.org/lawteacher/index.php.
277. Educating Tomorrow’s Lawyers, Why ETL? athttp://educatingtomorrowslawyers.du.edu/about-etl/. They continue, “ETL leverages theCarnegie Model and the work of law schools and professors committed to legal education reformto align legal education with the needs of an evolving profession by providing a supportedplatform for shared learning, experimentation, ongoing measurement and collectiveimplementation.”
278. Educating Tomorrow’s Lawyers, at http://educatingtomorrowslawyers.du.edu/.
279. Center for Excellence in Teaching (CELT), athttp://www.albanylaw.edu/sub.php?navigation_id=1709.
280. http://www.lwionline.org/.
281. http://www.alwd.org/.
282. http://www.cleaweb.org/.
283. http://lawprofessors.typepad.com/legal_skills/.
284. http://lawprofessors.typepad.com/legalwriting/.
285. http://lawschooled.org/.
286. http://bestpracticeslegaled.albanylawblogs.org/.
287. http://lsi.typepad.com/lsi/.
288. http://www.lawschool2.org/.
289. http://lawprofessors.typepad.com/legalwhiteboard/.
290. Niedwiecki, supra note , at 64.
291. BEST PRACTICES describes class discussion as “Discussion is a non-hierarchical technique,unlike Socratic dialogue and lecture. Students’ opinions, ideas, and experiences are valued aswell as their understanding of assigned readings. Discussion features two-way spokencommunication between students and teacher and direct interaction among students themselves.” BEST PRACTICES, supra note , at 226. A key to effective discussions is to have clear goals for thediscussion, ask lots of focused questions, maintain a somewhat democratic classroom, validatestudent participation, keep the professor’s views to himself, and allow time for reflection. Id. at227-31.
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292. Andrews, supra note , at 4. Professor Rice does not call herself a master teacher. Rather,this is my description based on her approach.
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