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

1

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,

2

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

4

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

5

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

8

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

11

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

12

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

13

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

15

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

16

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

17

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

18

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

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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

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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.

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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.

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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.”).

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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.

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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

45

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).

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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.”).

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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

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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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