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Fruehwald, E S --- "How to become an expert law teacher by understanding the neurobiology of learning" [2013] LegEdDig 43; (2013) 21(3) Legal Education Digest 40


How to become an expert law teacher by understanding the neurobiology of learning

E S Fruehwald

Independent SSRN, 2012, pp 1-57

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. Now for the last step – turning law professors into expert teachers.

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 criticised 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 to 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 are intimidated by the Socratic method to the point that they have emotional problems.

As Best Practices has asserted, ‘Members of a law school faculty should base their teaching decisions on research about effective teaching, or at least hypotheses grounded in research.’

Thinking, learning, memory, and perception are physical processes in the brain. One can succinctly describe how these processes work: ‘Brain cells [neurons] fire in patterns’. The firing neuron sends a chemical signal call a neurotransmitter across the synaptic gap to other neurons. Neurons interact to create complex representations, concepts, and processes.

The brain is the result of both nature and nurture: ‘The macro-architecture of the brain is genetic, but the micro-architecture is environmental.’ In other words, genetics provides the framework; experience the details. Learning is part of the details.

Importantly for learning, ‘Neurons grow or die and neural connections are created or eliminated based on which ones are active.’

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 and 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 behaviours, and thinking processes.’

Working memory is both the key to learning and the ‘bottle neck of learning’. Working memory has two functions – temporary storage and processing of information. Storage is the ‘process of turning a specific [sensory] input into a permanent trace’ in the long-term memory. However, the working memory cannot handle all this sensory input, so one of its roles is ‘attention’ – to process some of this input and ignore other parts. ‘If the neural pattern does not decay, it activates a neural pattern in the cortical region that produces a permanent memory trace of the original input.’

Working memory has only about four slots. However, these slots can hold from single letter to complex chunks (schemas).

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 is further strengthened, and working memory recognises it more quickly (called retrieval). The fact that this can continue infinitely ‘is how our knowledge of things and concepts are built.’ In sum, ‘learning is about connections’.

Working memory is substantially connected to and receives input from the emotions. More 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.’

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; and (3) Working memory allocation is directed by motivation.

They then set out five rules of learning: (1) New learning requires attention; (2) Learning requires repetition; (3) Learning is about connections; (4) Some learning is effortless; some requires effort; and (5) Learning is learning.

The first step in becoming an expert teacher is to become an engaged teacher and an engaged learner. Daniel Kahneman has developed the idea of the ‘engaged’ thinker. He writes, ‘[t]hose who avoid the sin of intellectual sloth could be called “engaged.” They are more alert, more intellectually active, less willing to be satisfied with superficially attractive answers, more skeptical about their intuitions.’ In contrast, lazy thinkers are characterised by ‘a reluctance to invest more effort than is strictly necessary.’

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 sense of voluntary control. System 2 allocates attention to the effortful mental activities that demand it, including complex computations. The operations of System 2 are often associated with the subjective experience of agency, choice, and concentration.

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 often 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.

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.

An engaged teacher gives more to his students because he is more prepared. He reflects on each class and whether that class was effective. Most importantly, he cares that the students learn.

An engaged teacher must also be an engaged learner. Law professors may be experts in a field, such as Contracts, but many of them are not experts at teaching Contracts to novices (pedagogical- content knowledge).

Being an engaged thinker or teacher requires deliberate practice. With the 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 practice 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.’

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.

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; and (6) evaluation.

Using Bloom’s taxonomy, Professor Schwartz divided self-regulated learning into three parts: forethought, performance, and reflection, then subdivided each of the parts. I have 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’. First, you should identify and classify the task, by perceiving its skill domain and the subject of the task. For Law 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 the second forethought sub-stage, the teacher ‘assesses her efficacy for accomplishing the task’. A teacher should know their skill and experience levels. If a teacher is not confident in her efficiency, she should do additional preparation for the class and learn more about effective teaching.

Based on the earlier stages, the reader then sets goals (purposes) for the teaching (the desired outcome). In coming up with a purpose, the 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 synthesise 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 sub-stages.

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.’ Having a purpose or goal when teaching helps attention-focusing, as does being enthusiastic about teaching.

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 stage is very important in helping a teacher improve their teaching.

Being a reflective learner/teacher starts at the metacognitive level, which is part of System 2. 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, metacognition is one’s inner voice or inner critic, and an engaged thinker develops her inner voice.

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 of 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 knowledge and helps them make connections. Another way for law teachers to improve their teaching is to keep a journal about their teaching experiences (habit).

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: domain transfer is applying existing skills to a new situation; it is an analogical skill. The key 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.’ ‘One can effectively organise material in long-term memory by developing ‘interconnected knowledge structures’ (schemas) – relating concepts to other concepts. Professor Kowalski writes, ‘The more schemas a person has available for comparison, the better a pervasive schematic can illuminate the differences between patterns in situations, training the brain to search for knowledge that can be generalised and applied to solve a new problem’.

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. Finally, Halpern suggests using authentic materials (materials that are similar to real world situations) to aid transfer.

An engaged teacher has an enthusiastic 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.

If the teacher is bored with the material, the student will be, too.

Expert law teachers use a variety of teaching strategies in each class. A variety of teaching approaches 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, writing, practicing, and viewing images.’

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 is also an important skill for law students. ‘The seemingly obvious solution to [improving] transfer would be to have students use their knowledge in situations where it will need to be used in the real world.’

Consequently, legal education needs more real world experiences. Clinics, skills 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. A final way is to help students think in a role, such as prosecutor, defence attorney, judge, or contract drafter.

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.

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; it makes learning a process, not a product. Feedback helps students see they are progressing to their goals, and it helps them develop the ability to provide feedback for themselves. Formative assessment helps students attend to learning, which helps short term memory, and it helps long-term memory by repetition.

Teaching students how to learn is just as important as teaching students substance because lawyers must be life-long learners.

One way to develop reflective learners is to ask questions that cause students to reflect on what they have learned. Another way is to require that students keep a journal concerning their learning experiences; this helps them reinforce long-term memory and create connections.

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 should also teach how that knowledge applies to facts – problem solving. Problem solving is ‘the 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 active 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.

It is often better for teachers to use worked examples or guided practice before students solve problems on their own, so that they can see the proper approach. In other words, they should explicitly expose their own thought processes to the students because students need to understand the ‘mental processing necessary to perform the observable tasks.’ In 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’).

Creativity is also part of the legal thinking process, and expert teachers teach their students how to be creative. In college, I learned a twostep approach to creativity. First, ‘brainstorm’ to come up with as many ideas as possible without being critical in any way. Second, criticise the results.

Finally, expert teachers serve as professional and ethical role models for their students. They should teach their students ethics, and they should help them become professionals.

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.


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