Sonsteng, J O --- "Rate law professors: an objective and practical method for evaluating teaching and learning tools in law school courses" [2012] LegEdDig 47; (2012) 20(3) Legal Education Digest 48

• Rate law professors: an objective and practical method for evaluating teaching and learning tools in law school courses

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Rate law professors: an objective and practical method for evaluating teaching and learning tools in law school courses

J O Sonsteng

William Mitchell Legal Studies Research Paper No. 2012-14, 2012, pp 1-20

To be effective, law schools need to be guided by outcome statements. Under the current ABA standards, schools only need to prepare their students for the bar and to be ‘effective and responsible’ lawyers, not to demonstrate any specific desired abilities.

The ABA standards can be satisfied by requiring a course that has substantial professional skills incorporated into the curriculum. Under the interpretations of §302-3, incorporation of ‘substantial’ professional skills means that ‘instruction in professional skills must engage each student in skills performances that are assessed by the instructor’.

The Standards Review Committee of the ABA proposed that §302 be renamed ‘Learning Outcomes’. Under the proposed §302(a), law schools would be required to ‘identify, define, and disseminate’ the learning outcomes the institution desires its graduates to meet. The proposal requires that the learning outcomes include competency in understanding the substantive law, professional skills, written and oral communication, and ethical responsibility, as well as justice, honesty, and professionalism.

Successful educators agree that high expectations for all students, perhaps higher than they would credit themselves with being able to achieve, can have a dramatic impact on students’ performance. Teachers also need to clearly communicate their expectations to the students, and when possible, demonstrate their expectations through concrete examples of past student work which they find exemplary.

Student learning outcome/objectives ‘are statements that specify what learners will know or be able to do as a result of a learning activity,’ which are typically articulated as ‘knowledge, skills, and attitudes’. Learning outcomes help: (1) focus on the student’s behaviour desired to be changed; (2) serve as guidelines for assessments; (3) identify explicitly what should be learned; (4) and communicate to students what is desired to be accomplished.

Course designers, as members of the law school’s design team, must determine learning objectives and the manner in which the school will evaluate academic competence. \

Barbara Glesner Fines, associate dean at University of Missouri-Kansas City, identifies four categories of questions that help shape and design learning outcomes. First, to identify expectations about learning outcomes, professors should ask themselves why students take their course. Second, to identify the objective’s subject matter learning outcomes, professors should ask themselves what they consistently test in their exams and emphasise the most in their teachings. Third, to identify the skills learning outcomes, professors should ask what fundamental skills they hope the students will develop over the course of the class. Finally, to help identify the values and attitudes learning outcomes, professors should decide what professional values they hope to model in the course.

Learning styles are, ‘those cognitive, affective, and psychological behaviours that indicate how learners interact with and respond to their learning environments and how they perceive, process, store and recall what they are attempting to learn’.

The study of learning styles is extremely relevant to the legal education system because individual learning styles are considered to be a ‘determining factor for individual learner’s respective successes and failures in schooling situations’.

It is important for professional education programs to acknowledge and accommodate multiple learning styles. A system catering to one type of learner can limit a profession by allowing only a small percentage of students who happen to excel best under a predominant learning method to enter the job market successfully.

Educational theorist Malcolm Knowles was a pioneer in the study of adult learning and is one of the few people who disagreed with the traditional view of learners as being dependent on teachers and having little or no influence on the shape and direction of their learning. He articulated five characteristics of adult learners; these are applicable and representative of law students in the legal education system. First, he suggested that adults see themselves as self-directing human beings who are not dependent on an instructor’s will. Second, adults respond well when they are allowed significant involvement in the design of course material and experiences and will be committed to an activity in direct proportion to their participation in, or influence on, its planning. Third, when adults recognise a relationship between the subject of study and their developmental tasks, they will be much more motivated to learn. Fourth, adults acquire knowledge more easily if they can apply it immediately. Fifth, as adults mature, the motivation to learn becomes more internal.

Rita Dunn is another theorist that challenged the traditional education system. It was the common, but inaccurate, belief that students who were motivated concentrated during class lectures, completed all of the assignments, and studied, and would and could be successful and able to master law course requirements. This belief is universally accepted in law schools, regardless of how inaccurate it may be.

The factory model was a one-size fits-all approach; we now know that education is a much more amorphous process than the assembly line metaphor describes.

Learner-centred education focuses on the pre-existing knowledge, skills, beliefs, and experiences students bring to the classroom. Teachers in learner-centred environments engage students to discover their pre-existing knowledge and use that information to initiate discussions of the students’ differences in the context of education.

Knowledge-centred classrooms emphasise the importance of establishing a baseline of knowledge before moving on to complex problem solving. The importance of a strong substantive and theoretical foundation cannot be overlooked. The teacher must ascertain what the students do and do not know before the teacher can determine what must be taught. Law professors must strike a balance among requiring students to learn information, understand theory, and apply general concepts to real-life problems.

There are three well-recognised models of how people learn: behaviourism, cognitivism and constructivism. The constructivist theory is the most current learning theory. Constructivists believe that learning is ‘an interpretive, recursive building process by active learners interacting with the physical and social world’. They believe that all new knowledge is constructed upon the ‘pre-existing mental models’ of the individual. Because incoming law students do not start out with a ‘clean slate;’ the students ‘filter and modify the law school experience through their existing knowledge and understandings of the world’.

Dunn and Dunn, created by Rita Dunn, is one of the most commonly cited learning style theories. Dunn and Dunn define a learning style as ‘the way a person concentrates on, processes, internalizes, and remembers new difficult academic information or skills’, and also as ‘the way in which an individual reacts to 23 elements in five basic strands:’ (1) Immediate Environment (sound, light, temperature, and design); (2) Emotionality (motivation, persistence, responsibility/conformity, and need for internal or external structure); (3) Sociological (learning alone, in a pair, as part of a small group or team, with peers, or with an authoritative or collegial adult; also in a variety of ways or in a consistent pattern); (4) Physiological (auditory, visual, tactual and/or kinaesthetic perceptual preferences; food or liquid intake needs; time-of-day energy levels; mobility needs); and (5) Indications of Global or Analytic Processing Inclinations (through correlation with sound, light, design, persistence, peer-orientation, and intake scores).

A growing number of law professors agree that students do not all learn in the same way, which leads to the conclusion that law professors should avoid adopting an across-the-board teaching method. In addition, students prefer to learn in a variety of ways so they don’t become bored quickly by engaging in the same patterns and routines. To accommodate students’ individual learning styles, varying homework assignments and assessments can be incorporated into teaching. A variety of assignments can be used, such as in-class or take-home assignments, as well as collaborative or individual assignments. The variety in assignments provides individual assessments for each student and helps students determine the type of homework assignments in which they excel.

Law schools should use a diagnostic assessment to help them understand their students’ various learning styles. Once the learning styles are discovered, professors can tailor their instruction to accommodate the students learning needs.

Isabel Myers and Katherine Briggs created the Myers-Briggs Type Indicator (MBTI). They applied the personality theory of Carl Jung. Jung concluded there were, ‘Major differences in the way people perceived (sensation versus intuition), the way they made decisions (logical thinking versus imaginative feelings), and how active or reflective they were while interacting (extroversion versus introversion)’.

The MBTI categorises students with respect to ‘preferences rather than traits, abilities, or characters’. These categorisations help individuals identify critical elements of their personality, forming a student’s individual learning style. The MBTI takes learners and categorises them as being one of two different types of categories based on personality: extravert or introvert, sensing or intuition, thinking or feeling, and judging or perceiving. Extraverts want to ‘interact with the external world of people and things around them. They prefer active involvement with the learning process’. Introverts ‘tend to be more reflective learners, prefer the subjective energy that comes from within themselves, such as ideas, feelings, thoughts or perceptions’.

Some learners ‘take in information through their five senses and focus on the facts and details in a situation’. Other learners rely on intuition, or the ‘sixth sense’, and tend to be creative and imaginative. This is similar to learners who perceive by thinking versus feeling.

People also make decisions by using their judgment or their perceptions. Those who use judgement ‘want to check objective data with their own beliefs’. They are focused on the value-oriented judgements. Perceivers ‘tend to use cause-and-effect reasoning that is based on logic and objective appraisal’.

Learners are placed in one of two different spectrums, creating 16 possible MBTI profiles. These profiles tend to present personality preferences showing that ‘all people obtain and process information in distinctive ways’. Knowing which profile a learner is distinguishes the individual’s learning style.

The use of the Myer’s Briggs Type Indicator (MBTI) will allow law schools to recognise, accept, and understand the diversity of students with regards to learning styles so that each student’s strengths and weaknesses can be discovered. The use of the MBTI will assist professors at improving and using a variety of teaching skills and methods, rather than relying on a single method. Without the use of a learning style assessment, professors will be operating classrooms blindly, instead of reaching students with different learning styles.

Gerald F. Hess suggests that an effective learning environment consists of eight components, ‘[R]espect, expectation, support, collaboration, inclusion, engagement, delight, and feedback’. ‘The more elements present, the more likely the environment will be conducive to learning’. In a respectful environment, teachers and students ‘participate in a dialogue, explore ideas, and solve problems creatively’. Students must be willing to confront challenging tasks with no intimidation or humiliation, which may cause withdrawal from participation and learning. Collaboration is accomplished through the creation of cooperative learning environments, including cooperation among students and teachers in course design, delivery, and evaluation.

Core to collaborative learning are several assumptions, including the ideas of shared authority and the notion that ‘knowledge is socially constructed, not received’. Ultimately, collaborative learning rests on the fundamental principle that ‘through peer interaction, what individuals learn is more qualitatively different than what they would learn on their own’.

The benefits of cooperative learning are well-documented. ‘Research on adult learners has revealed that cooperative learning – learning that takes place when peers share experiences and insights – is not only the most common type of adult learning, it is perhaps the most effective style’. In a cooperative learning environment, students interact while the teacher, acting as a ‘guide on the side’, makes decisions, develops the lessons, monitors and intervenes, evaluates and processes.

A cooperative learning environment can improve student participation, preparation for class, and skill development.

The realisation by law schools of the importance of preparing students for the practice of law has led to a more practical approach to teaching. For example, collaborative learning is utilised in law school curriculum, clinic programs, the use of technology to encourage collaboration, and applying the medical school model of learn one, do one, teach one.

Students must engage in active learning. This finding is consistent with the idea of experiential learning, or learning-by-doing, which theorists agree is highly preferable to passive absorption of concepts. David Kolb of Case Western University provided a great deal of insight into the way we learn. Methods that provide students opportunities for self-assessment and improvement are effective because the students are given tools that empower them to take control of the learning process.

Simulation-based courses effectively allow learning to take place in a context that gives critical meaning to the subject matter. When students learn through the performance of actual lawyering tasks, they are able to encode learning in distinctive, active, and multiple ways.

In 1946, educationist Edgar Dale developed a learning theory known as the ‘Cone of Experience’. In the Cone of Experience, the base of the cone represents the learner as a participant in actual or simulated experience and the top of the cone represents the learner as a mere observer of symbols that represent an event (e.g, reading words on a page). Dale theorised that learners retain more information by what they do, and his model supports the theory.

In addition to illustrating the effectiveness of various methods of instruction, the Cone of Experience can be used to gauge a student’s retention. As one begins to utilise methods found at or near the base of the cone, more learning takes place and more information is retained.

Dale’s Cone of Learning strongly supports action-learning techniques such as simulations and role-plays, which can result in up to 90 per cent retention.

Law students benefit from the self-direction of experiential learning and the opportunity to connect substantive course material to skills that will be valuable to future practice. When students learn from experience, they continue to learn from experience throughout their careers.

It is not feasible to teach the entire breadth of legal theory and practice skills in a three year education. While the traditional legal education introduces law students to a variety of substantive legal areas, most of the relevant substantive law they will deal with in their career will be learned during legal practice.

Through a variety of self-discovery teaching techniques, professors are able to give students the knowledge base and skills necessary to guide them to acquire conceptual knowledge on their own and to be better prepared to practice law. Central to the theory of self-discovery is the notion that students will naturally want to devise an answer to complex problems.

American legal education has undergone a number of changes. Early focus was on the clerking system; a clerk was essentially an apprentice to an attorney who performed tasks from copying papers to preparing for presentation of cases. From there, two innovations appeared on the American scene: the teaching of law within the university framework and the rise of private law schools. This continued largely until 1870, when Christopher Columbus Langdell was appointed to Harvard Law School and introduced a method of teaching that would permanently change legal education.

However, much has changed since Langdell first introduced the method and it has found many critics. One view is the method fails because lawyers increasingly need to think in and across more settings, with more degrees of freedom, than appear in the universe established by appellate decisions and the traditional questions arising from them. The Socratic method may rely too heavily on appellate cases, given that we live in a world in which more of the law comes from statutes, regulations, and rules. A concern among some is what [students] crucially lack, is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills; unless they acquire legal imagination somewhere other than in our appellate-case-method classrooms, they will be poorer lawyers than they should be. The ‘true work’ of a lawyer has to do with solving the problem of clients and not legal theory, and hence the

Socratic method is inefficient in teaching doctrinal rules.

The concept of the process of education has changed since Langdell’s time. A plethora of

technological education tools have been created. Many arenas of education take advantage of these tools to facilitate learning and improve performance. The Socratic method simply relies on the casebook and the professor, without potential benefits from the use of educational technology.

Though the Socratic method depends on student participation, students are often reluctant to give input, often due to some sort of fear. A Socratic professor aims for ‘productive discomfort,’ not panic and intimidation. Unfortunately, professors sometimes get carried away during the discourse and often will reprimand students (for lack of preparedness or for simply missing the point) in such a way that is both embarrassing and harsh, further hindering participation.

The Socratic method as it is relies too heavily on appellate decisions, does not account for individual learning styles, and may discourage student participation. For many students, a teaching style that legitimises alternative forms of participation, respects all perspectives, and broadens the educational dialogue makes them better advocates by deepening their knowledge of the world around them as well as enhancing their understanding of the implications of their claims. It is crucial that students learn black letter law, the theory behind the law, and the ability to think quickly and creatively. However, it is also vital that students know how to apply the law and theory in a real-life setting.

Courses can be structured in a variety of ways in order to take advantage of self-discovery learning concepts. By presenting students with decisions from which they are supposed to derive underlying legal concepts, the Langdell method teaches students to learn legal reasoning on their own.

Self- discovery principles and legal practice simulations also apply when students are placed in an environment in which they learn through experience has a similar effect when students learn they are encouraged to engage actively in their education. Legal practice takes self-discovery learning principles to their logical end, by ensuring not only that students learn the information that is required, but also can put that knowledge to use.

Part of a good clinical education is building in a process for self-evaluation by the students. Teaching in a clinical atmosphere can be challenging for professors used to more traditional classrooms because they are forced to take on a different role. Rather than the hierarchical structure of a traditional classroom, clinical professors must play the more limited role of a facilitator. The professor in this case is more of a peer and guide, ensuring that the students have the proper resources so that they can learn through their own experiences.