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Selective Attention

February 20th, 2016 / By

Want to see why it’s more difficult to multi-task than you think? Take a look at this video. It’s silly, but it shows how limited our attention is. Our brains aren’t video cameras that record everything within hearing and seeing distance; instead, we focus selectively on parts of the landscape. Other events–like all of those changes in the video–escape our notice.

This lesson is important for students who think they can follow a law school class while texting, reading for the next class, or (horrors) reviewing another professor’s law review submission. If their attention is focused on one of those activities, they will miss much of what happens in the classroom.

The phenomenon, however, also has implications for professors.

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Education and Employment

February 6th, 2016 / By

The ABA’s Council of the Section of Legal Education and Admissions to the Bar is once again considering amendments to Standards 304 and 305 in order to permit externship credit for paid work. As I have written before, I support that change. When granting academic credit, the quality of the experience counts–not whether the student was paid for the work.

I have heard about unpaid externships that offered very little educational content. Conversely, I know of terrific externship placements (with both nonprofit and for-profit employers) that required students to choose between academic credit and pay under our current rules. I see no clear line between pay and educational value. Nor does a black letter rule seem appropriate for a learned profession: Surely ethical educators can determine which externships deserve academic credit.

The debate, meanwhile, raises a more troubling issue. If education and paid employment are incompatible, as some comments on the ABA proposal suggest, then we have lost an essential element of our professionalism. It’s possible that we have lost that element, but I think it’s worth reflecting on the issue.

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Experiential Education and Bar Passage

January 22nd, 2016 / By

Robert Kuehn has written an excellent post about clinical courses and bar passage. He notes that Erica Moeser, President of the National Conference of Bar Examiners, suggested in print that declining bar passage rates might stem in part from the rise of experiential learning in law schools. NCBE’s Director of Testing and Research has made the same claim, noting that: “There has also been a trend toward incorporating non-core courses and clinical experiences into the law school curriculum. These, too, can take students’ time away from learning the core concepts that are tested on the bar examination.”

When Kuehn contacted Moeser to ask if she knew about any empirical research supporting this purported connection, she admitted that she knew of none. Nor did her testing staff. (more…)

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Peking University

January 18th, 2016 / By

In August 2012, the ABA’s Council of Legal Education and Admissions to the Bar decided not to accredit any law schools located outside the United States. Many observers assumed that action would put an end to Peking University’s upstart enterprise, a School of Transnational Law. Instead, the school, popularly known as “STL,” is thriving.

Philip McConnaughay and Colleen Toomey, STL’s Dean and Associate Dean, explain the school’s success in a recent paper. Their insights are important for anyone seeking to understand the globalization of law practice and legal education. The story of Peking University and STL also offers a cautionary tale about American protectionism.

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The Value of Clinics

January 9th, 2016 / By

I just returned from the AALS annual meeting, where I attended a session sponsored by the section on clinical education. The program, notably, was assigned to the “Bowery” conference room. For those not familiar with NY geography, the Bowery is a “city district known for cheap bars and derelicts.” It’s not clear why the Sheraton Midtown decided to name a conference room after that checkered locale.

We “derelicts” of legal education, however, assembled in our Bowery room to discuss the value of clinical education. We heard numerous thoughtful evaluations of clinics, including survey evidence about the value that students and employers place on this experience. We also listened to a particularly incisive presentation by Bob Kuehn on the costs of clinical education. As Bob has written in a forthcoming paper, clinical courses are not as expensive as many observers believe.

A particularly eloquent statement, however, came from a member of the audience. Every professional, he observed, develops lifelong values, attitudes, and habits of mind in their first professional workplace. Why wouldn’t law schools want to shape those values? Classroom discussion, Socratic questions, and exams go only so far. Don’t we want to shape our graduates as professionals? Why would we forego the chance to make those impressions?

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Agnotology

January 6th, 2016 / By

Never heard of it? Agnotology is the science of ignorance–or, more precisely, the study of how individuals and organizations willfully spread confusion. This article offers a quick overview. One of the most effective ways to nurture ignorance, the article explains, is to persuade people that a fact is disputed.

This was the strategy that cigarette companies adopted to rebuff scientific studies showing tobacco’s killer effects. The companies couldn’t prove that the studies were wrong; instead, they focused on creating doubt. As long as cigarette manufacturers could maintain an air of controversy over tobacco’s effects, smokers would persuade themselves that smoking was not dangerous. Companies managed to maintain this air of “controversy” long after scientists agreed on the health risks of smoking.

Agnotologists warn that the internet facilitates the spread of ignorance. Disagreements arise readily online, and interested parties leverage those arguments to create an illusion of uncertainty. As long as experts appear to disagree over an issue, less informed individuals feel comfortable picking either side–even if an overwhelming majority of experts in the field endorses one side of the debate.

It’s a useful insight, especially for those of us who educate law students. We teach students that there are two or more sides to almost every question. That’s a key lesson for future lawyers to master, but perhaps we should impart a caveat learned from agnotology: Recognizing two sides can also be a way of obfuscating truth.

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Fluid-Intelligence Affirmative Action

September 13th, 2015 / By

I wrote in a recent post that many affirmative action programs reflect a belief in fixed intelligence. In these programs, faculty assume that affirmative-action admits have less ability than their white peers. That ability, faculty further assume, condemns those admittees to low law school grades. In addition, the presence of less qualified minority students may aggravate the stereotype threat that can impair performance by all minority students–leading to still lower performance overall.

I then, however, explained that a belief in fixed intelligence is mistaken. Intelligence is much more fluid than many individuals understand. Adopting a fluid-intelligence mindset, moreover, can itself enhance achievement. This brings us to the questions: How does a belief in fluid intelligence affect our concept of affirmative action? And how might those beliefs affect the performance of minority students?

Conceptualizing Affirmative Action

When viewed with a fluid-intelligence perspective, affirmative action programs take on a very different character than the one I described earlier. This perspective, first, assumes that college grades and LSAT scores do not fully reflect the existing intelligence of minority students. Stereotype threat, economic disadvantage, cultural signals, and other forces can reduce a minority student’s performance when compared to that of a white student with similar abilities. Thus, the true ability level of an admitted minority student may be higher than that of white students with similar scores.

Second, the fluid-intelligence perspective assumes that the minority student’s capabilities will grow throughout law school. Education expands intellectual ability, and law school offers a particularly rigorous form of education. The minority student, like white students, will be more capable at graduation than at admission.

Finally, and most important, the fluid-intelligence perspective suggests that the minority student has more potential for growth than the white student with similar credentials. Why? Because almost all minority students have been hampered by a lifetime of implicit bias and stereotype threat. They are also more likely than white students to have suffered from low-income backgrounds, few role models, and inadequate schools. All of these factors can reduce the ability that an individual displays in college or on the LSAT, but they don’t erase the potential for achievement gains.

A good affirmative action program assumes that, if we place minority students in an intellectually challenging but supportive environment, and if we eliminate the stereotype threat and implicit bias in that environment, the minority student will make greater intellectual gains than a white student who enters that environment with the same initial achievement level.

The same, of course, can be true for some white students. Some of them suffer from inferior schools, few role models, and stereotype threats of their own. These students will also benefit disproportionately from a challenging, supportive academic environment. The gaps for minority students, however, tend to be much, much larger. The potential for gain, likewise, is much greater.

The Theory In Action

This three-part discussion, I hope, shows that affirmative action programs need not create stereotype threat or harm minority students. On the contrary, properly conceptualized programs recognize the ability of minority students to make greater gains than similarly credentialed classmates.

What, then, holds them back? Why did Alexia Marks and Scott Moss find that minority law students receive lower grades than white classmates with similar entering credentials? The answer almost certainly lies in our failure to create the type of academic environment described above.

I invite law professors and administrators to reflect on their own attitudes. How many of us believe that intelligence is fixed? That belief can negatively affect student learning.

If we believe in fluid intelligence, do we recognize that minority students may be able to make special gains during law school? Do we eagerly embrace that possibility, working to create the conditions that will bring those gains to life? Are we giving students wise feedback that affirms their ability to meet high standards? The outcomes described by Marks and Moss suggest that we’re not doing nearly as much as we could.

To what extent, finally, does our traditional culture hamper the intellectual development of all students–and of minority students in particular? A lack of individualized feedback, strict grading curves, and overt tracking (e.g., election to the primary law review) probably reinforce notions of fixed intelligence.

Are there ways to change these academic traditions? Or to create new approaches that override their impact? Can we cultivate a belief in fluid intelligence–among both students and faculty–that will give more students an opportunity to grow their intelligence? That is one of the challenges facing law schools.

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Is Intelligence Fixed?

September 8th, 2015 / By

This post is part of a series discussing the challenges that minority students face in law school. You can read previous posts here, here, and here. As I noted in my most recent post, our beliefs about intelligence can affect both student performance and the impact of affirmative action programs. I also suggested that many law students and professors believe that intelligence is fixed. Indeed, the law school culture seems to promote that belief. But is intelligence really fixed?

We know that the expression of intelligence is not fixed. Individuals exhibit different degrees of intelligence under different circumstances. The phenomenon of stereotype threat illustrates that fact: individuals exhibit lower levels of intelligence when tested under circumstances suggesting that members of their identity group are expected to perform poorly.

But does intelligence itself vary? Or does it remain fixed, defining an outer limit of each individual’s potential? One answer is that it doesn’t matter much. If context can affect the expression of intelligence, as happens with stereotype threat, we can focus first on developing academic contexts that enhance the expression of intelligence among all students. Perhaps we can secure sufficient gains in the expression of intelligence–for both minority and white students–that we need not worry whether their underlying intelligence is fixed.

There is, however, significant evidence that intelligence is not fixed. There is equally important evidence that our beliefs about intelligence affect academic performance.

Fluid Intelligence

The psychologist Scott Barry Kaufman dismisses the notion of fixed intelligence as a myth. “The bottom line,” he writes, “is that intelligence was never, and will never, be fixed at birth.” Intelligence grows over the lifetime and even over generations. There is little doubt that intelligence is fluid.

Fluid does not mean completely unrestrained. As Kaufman notes in the article linked above, intelligence as measured by IQ tests remains relatively stable over an individual’s lifetime. This means that individuals at the bottom, middle, and top of the IQ scale tend to retain those relative positions–even as the intelligence of all individuals increases with age and experience. Still, there is considerable fluctuation in those relative positions, especially if individuals are exposed to enriching experiences (or removed from constrictive environments).

This has important implications for legal education. If intelligence is not fixed, then some of our traditional practices look educationally suspect. Our lack of feedback, for example, deprives students of opportunities to enhance their legal intelligence. Our assumption that skills like client counseling reflect innate personality traits similarly prevents us from expanding students’ intelligence by coaching them in these abilities.

But there’s more: Our very belief in fixed intelligence can restrain student achievement.

Fixed and Growth Mindsets

Stanford psychologist Carol Dweck has led a decades-long exploration of the relationship between achievement and beliefs about intelligence. Her work, summarized in the popular book Mindset, shows that people who believe in fluid intelligence (a “growth mindset”) achieve more than those who believe that intelligence is fixed (the “fixed mindset”).

Encouraging students to adopt a growth mindset, therefore, can spur achievement. Dweck and her colleagues have illustrated this effect in numerous studies. Their most recent effort demonstrates the feasibility of low-cost, large-scale interventions to achieve significant gains in student achievement.

This line of scholarship has even more profound implications for legal education. Our grading scales and culture seem to nourish the belief that legal aptitude is fixed. First-year performance constrains employment prospects for many students, signaling that the ability they demonstrated that year is an accurate measure of their long-term potential. Similarly, many students express frustration that they receive middling grades whether they study a little or a lot. Without more individualized feedback, they conclude that their abilities are fixed and that hard work is pointless.

Research by Dweck and other psychologists suggests that, if we could reform our culture to change these mindsets, all of our students would achieve more. That in itself would be a laudable goal.

Back to Affirmative Action

I started these posts, however, by exploring the particular plight of minority students. In my last post, I extended that journey to consider the impact of affirmative action programs. As I noted there, programs rooted in a fixed-intelligence belief may depress the grades of minority students (although those programs may still confer other benefits by opening doors to more elite schools).

In my next and final post of this series, I will describe a different type of affirmative action program–one committed to a belief in fluid intelligence. As we’ll see, that type of program could enhance performance by minority students. A culture endorsing fluid intelligence, furthermore, could improve achievement among all law students.

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Affirmative Action and Fixed Intelligence

September 6th, 2015 / By

I wrote this summer about a study demonstrating a worrisome trend among minority law students: They received lower grades than white peers with similar LSAT scores, undergraduate achievements, and work experience. Part of the problem, I suggested in a second post, may stem from the psychological phenomenon of stereotype threat. When individuals are placed in situations in which a group stereotype suggests that they will perform badly, they do just that. Remove the stereotype threat and performance improves to match that of other individuals with similar experience and abilities.

Stereotype threat arises in part from the implicit racial bias that permeates our culture. If professors, classmates, friends, and family members see minority students as less capable than white ones, those perceptions can become self-fulfilling prophecies. Unconscious bias, unfortunately, is invisible only to the holders of that bias; targets readily perceive the negative assumptions and respond to them.

What About Affirmative Action?

How does affirmative action affect this dynamic? Some critics of affirmative action suggest that special admissions programs simply aggravate stereotype threat–ultimately harming the students they intend to help. Minority students, they reason, know that at least some members of their group lack the credentials of white students; they are “less qualified” to attend law school than their peers. This knowledge, critics reason, will trigger an extreme form of stereotype threat. Knowing that their racial/ethnic group is less qualified than the dominant white group–and that professors know this–minority students will perform poorly.

Does this phenomenon explain the poor performance of minority students in law schools? Should we abandon all traces of affirmative action to improve the achievements of minority students?

Not from my perspective. Instead, we need to examine our own attitudes toward affirmative action. Those attitudes, which inform a law school’s culture, spell the difference between programs that assist minority students and those that may harm them. To explain this, we also need to explore the nature of intelligence: Is an individual’s intelligence fixed at some point early in life? Or is it fluid? I will explore these issues in a series of posts.

Fixed-Intelligence Affirmative Action

Many critics of affirmative action assume that intelligence is fixed. When we admit minority students with lower LSAT scores than their white classmates, these critics assume, we know that the minority students will perform more poorly in law school. They have less law-related intelligence (as measured by LSAT tests) and, thus, are fated to lower performance.

These critics acknowledge that intelligence is not the only factor affecting achievement. Hard work, catch-up tutoring, and faculty encouragement, they concede, may improve a student’s grades. In their view, however, this simply adds to the cost of affirmative action programs. Schools must devote special resources to tutoring programs, and faculty must provide special encouragement to minority students. The pay-off, from the critics’ perspective, is small. Minority students, they argue, would fare better if they attended schools where their fixed intelligence matched that of their white peers.

Many supporters of affirmative action programs also believe in fixed intelligence. These supporters quietly assume that minority students have less law-related intelligence than their white peers, but they blame that difference on historical and contemporary discrimination. Since society has damaged minority students, these professors reason, we owe them special consideration in admissions. We should give them the opportunities they might have had if they had not experienced a lifetime of overt and subtle discrimination. With hard work, special tutoring, and faculty encouragement, at least some of these students will achieve more than their predictors indicate. Even those who finish near the bottom of the class will benefit from the reputation and network connections of a more prestigious school than one they might have attended without affirmative action.

These attitudes, whether expressed critically or supportively, may well reduce the performance of minority students. In addition to creating stereotype threat, these attitudes tell minority students: “Intelligence is fixed by the time students enter law school and, for whatever reason, yours is lower than that of your classmates.” As we’ll see in my next post, belief in fixed intelligence harms students as much as stereotype threat. Minority students, therefore, suffer a double injury when surrounded by these attitudes.

These attitudes, it’s important to note, need not be overt to affect students. Few professors announce to their classes: “Your intelligence is fixed. You’ve either got it or you don’t. See you at the end of the semester.” The beliefs, however, are there. Law school, in fact, seems centered on a theory of fixed intelligence. Our focus on LSAT scores (aggravated by the US News ranking competition), the lack of feedback designed to enhance performance, and the strict grading curves suggest that we believe our students’ intelligence is fixed.

Add assumptions about low-performing minority students to that mix, and you have a recipe for stereotype threat and reduced performance–even among minority students with entering credentials that match those of white peers.

Another Way

Fortunately, it doesn’t have to be this way. There is a way to conceptualize affirmative action programs that is both more cognitively accurate and more supportive of minority students. If we can reform our law school culture to embrace the reality of fluid intelligence, we will reveal the true justification for affirmative action programs, allow minority students to reach their full potential, and improve learning for all students. In my next two posts, I will explore the concept of fluid intelligence and how it can inform our beliefs about affirmative action.

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Our Own Worst Critics

August 28th, 2015 / By

The journal Science just published a study reporting that top scientists were unable to reproduce the results claimed by 75% of social psychology studies and 50% of cognitive psychology ones. All of the studies appeared in top-ranked journals.

Some scientists, I’m sure, are reeling that their work has been challenged. But I like the attitude expressed by Brian Nosek, a prominent researcher who led the reproduction study. “Scepticism is a core part of science,” he told journalists, “and we need to embrace it. . . . We should be our own worst critics,”

I would say the same about legal education. Skepticism is a core part of our method. We teach students to question their assumptions, as well as the precedents they read. At faculty workshops, we question the presenter’s results and offer competing theses. Practicing lawyers must learn to be even more skeptical than we are; clients shade the truth, witnesses lie, and opposing lawyers omit relevant facts. Skeptical questions are the foundation of our profession.

Yet we are remarkably resistant to questions about legal education. Suggestions that our curriculum focuses too heavily on appellate practice; that education in other practice skills would improve client representation; that we tout big firm lawyers (and their salaries) more eagerly than small ones; that tuition and tenured faculty salaries have increased markedly, while teaching loads have fallen; that legal scholars devote almost no time to studying the delivery of legal services and ways to streamline those services; or even that the hallowed Socratic method may not be quite as engaging to students as it is to professors–these and other criticisms meet waves of resistance rather than eager discussion. Note that I say “discussion” rather than “acceptance.” I am inclined to agree with the criticisms noted here, but I am amazed by the reluctance of some scholars even to entertain these questions.

Legal educators are finally making progress; we are more willing to consider the fact that legal education might–just might–be capable of improvement. It’s sad, though, that this new openness has stemmed primarily from market forces rather than an innate commitment to improvement. Ten years ago, it was hard to get many educators to discuss even the possibility of flaws in legal education. Only after remarkable downturns in jobs and applicants have we become receptive to reflection.

That reflection has led to promising innovations, but our work has just begun. We need to know much more about the impact of those innovations, as well as about some of the traditional classroom models they have replaced. We need to continue learning about the work our graduates do and the legal needs that remain unmet. State supreme courts have given us the virtually exclusive power to choose future lawyers, along with the responsibility of providing their foundational education. It’s a weighty responsibility that will bring it’s own reward if we do it right.

Law schools don’t need a $1 million communications effort to improve our public image. We need a genuine commitment to identifying and solving problems within legal education and the profession. If we have an extra $5,000 per law school, I suggest we spend that money on initiatives that will inform and improve legal education–not on PR. Here are just a few suggestions:

1. Evaluate the outcomes of legal incubators for both new lawyers and clients. Do these initiatives succeed in launching new lawyers into practice? Are they able to address low- and moderate-income needs?

2. What other practice models show promise in matching lawyers with under-served clients? individual schools–or a national organization like the AALS–could offer seed grants to scholars who are exploring alternative structures for the delivery of legal services. Which structures show the most promise for closing the justice gap? What kind of work do lawyers do within those structures? How can law schools best educate lawyers for those roles?

3. Sponsor faculty workshops that will educate faculty on what skills like interviewing, counseling, fact gathering, and negotiation really entail. I was amazed to read last night that some faculty think that these are “motor” skills rather than “thinking” ones. We need to educate faculty about these essential skills, which are as important to law practice as appellate-style reasoning. These skills also require as much “thinking” as any other work in law school.

4. Create workshops that will teach practitioners how to educate new lawyers. The conventional law school classroom offers a poor model for workplace education. Too many senior lawyers try to emulate Kingsfield, barking questions and criticisms rather than giving guidance. Clinical professors know how to educate new lawyers while engaged in active client representation. With a modest amount of funding, they could educate practitioners in those pedagogies.

Do good work, and the good press follows.

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