Smarter Law Learning: Using Cognitive Science to Maximize Law Learning

Author:Jennifer M. Cooper
Position:Visiting Assistant Professor of Lawyering Skills, Seattle University School of Law; J.D. from Seattle University School of Law, magna cum laude; B.A. in Theatre from Louisiana State University.
Pages:551-590
SUMMARY

An examination on how law schools can use empirical research findings in law school classrooms to maximize students and their legal learning.

 
FREE EXCERPT
552 CAPITAL UNIVERSITY LAW REVIEW [44:551
schools to lower admission standards.
3
Law schools are inheriting more
less-prepared students for the study of law than ever before.
4
Many students entering law school lack strong critical thinking skills for
legal educators to build on.
5
Moreover, compared to previous student
populations, these students often have poor and ineffective study habits,
weak critical thinking and writing skills, and are thus less academically
3
This is because LSAT scores are declining, combined with a steep decrease in law
school applicants. See Natalie Kitroeff, Law School Applications Set to Hit 15-Year Low,
BLOOMBERG (Mar. 19, 2015, 11:38 AM), http://www.bloomberg.com/news/articles/2015-03-
19/law-school-applications-will-hit-their-lowest-point-in-15-years. The brightest college
graduates are no longer applying to law school. As of January 23, 2015, there were 168,887
applications from 24,097 applicants, representing a 7.3% decline in applicants from 2014.
Brian Leiter, Latest LSAC Report On Law School Applications, LAW PROFESSOR BLOGS
NETWORK (Jan. 29, 2015), http://leiterlawschool.typepad.com/leiter/2015/01/latest-lsac-
report-on-law-school-applications.html; Vivian Chen, Best and Brightest? Or Dumb and
Dumber?, AM. LAW. (Feb. 11, 2015), http://www.americanlawyer.com/the-
careerist/id=1202715673998/Best-and-Brightest. Although most top tier schools are less
affected and continue to attract high-quality candidates, mid-level and bottom-tier schools
will be the hardest hit. See Natalie Kitroeff, Getting Into Law School Is Easier Than It Used
to Be, and That’s Not Good, BLOOMBERG BUS., http ://www.bloomberg.com/news/
articles/2015-01-06/getting-into-law-school-is-easier-than-it-used-to-be-and-thats-not-good
(last updated Jan. 9, 2015, 10:57 AM).
4
See Cath aleen A. Roach, Is the Sky Fa lling? Ruminations on Incoming Law Student
Prepa redness (and Implications for the Profession) in the Wake of Recent National and Other
Reports, 11 J. LEGAL WRITING INST. 295, 29697 (2005).
[W]e must ask, . . . “is the preparedness level of our incoming law
students in the next one to ten years de clining, and if so, how
dramatically?” In particular, how does less exposure to writing and
reading affect what first-year law students bring to our law schools
regar dless of their LSAT standardized test scores?
Id. Susan Stuart & Ruth Vance, Bringing a Knife to the Gunfight: The Academically
Underprepa red Law Student & Legal Education Reform, 48 VAL. U. L. REV. 1, 41 (2013).
5
See Goodwin, supra note 1; Bartholomew, supra note 1, at 904.
At the Association of American Law Schools conference in January, a
number of professors voiced concern about these cultural shifts, their
impacts in the classroom, and law schools’ roles in perpetuating the
trends by placing high value on LSAT scores. According to some
conference participants, students’ writing skills are the worst they have
ever encountered.
Goodwin, supra note 1.
2016] COGNITIVE SCIENCE IN LAW LEARNING 553
prepared for the case method and Socratic method.
6
Most alarmingly, these
students have “illusions of competence” in their reading, writing, and study
habits, leading them to rely on improvised and ineffective study strategies.
7
These students have also been trained that there is a “right answer”
through more emphasis on standardized testing and less emphasis on
rigorous reading and writing tasks.
8
These deficiencies result in a reduced
6
See S tuart & Vance, supra note 4, at 41; James Etienne Viator, Legal Education’s
Perfect Storm: Law Students’ Poor Writing and Legal Analysis Skills Collide with Dismal
Employment Prospects, Creating the Urgent Need to Reconfigure the First-Year Curriculum,
61 CATH. U. L. REV. 735, 737 (2012); Roach, supra note 4, at 29697; Aida M. Alaka, The
Grammar Wars Come to Law School, 59 J. LEGAL EDUC. 343, 34344 (2010).
7
See PETER C. BROWN, HENRY L. ROEDIGER III & MARK A. MCDANIEL, MAKE IT STICK:
THE SCIENCE OF SUCCESSFUL LEARNING 1617 (2014) [hereinafter MAKE IT STICK];
BENEDICT CAREY, HOW WE LEARN: THE SURPRISING TRUTH ABOUT WHEN, WHERE, AND WHY
IT HAPPENS 82 (2 014); ACADEMICALLY ADRIFT, supra note 1, at 12627; Jennifer McCabe,
Metacognitive Awareness of Learning Strategies in Under graduates, 39 MEMORY &
COGNITION 462, 462 (2011).
[C]ollege professors routinely encounter students who have never written
anything more than short answers on exams, who do not read much at all,
who lack foundational skills in math and s cience, yet are completely
convinced of their abilit ies and resist any criticism of their work, to the
point of tears and tantrums: “Bu t I earned nothing but A’s in high
school,” and “Your demands are unreasonable.”
Thomas H. Benton, A Perfect Storm in Undergradua te Education, P art I, CHRON. HIGHER
EDUC. (Feb. 20, 2011), http://chronicle.com/article/A-Perfect-Storm-in/126451.
8
Crit ics argue that the rise of standardized testing created students who look for the
“right” answer instead of analyzing multiple possible “good” answers. See Susan Fanetti,
Kathy M. Bushrow & David L. DeWeese, Closing the Gap Between High School Writing
Instruction a nd College Writing Expectations, 99 ENG. J. 77, 78 (2010). The most crucial
obstacle between test writing and learning:
Standardized testing, to be standardized, must create questions and
answers that leave no room for interpretation. Such rigid questions and
answers remove the importance of context from literacy practices and
allow for no independent meaning making from students. Yet it is in that
moment when an individual makes meaning in writing and reading in a
specific cultural context that identity and literacy come together.
Id. (citing Bronwyn T. Williams, Standar dized Students: The Problems with Writing for Tests
Instead of People, 49 J. ADOLESCENT & ADULT LITERACY 152, 154 (2005). See also
Goodwin, supra note 1 (“Teaching to the test overshadows (if not supplants) teaching critical
thinking, higher-order reasoning, and the development of creative-writing skills.”).
554 CAPITAL UNIVERSITY LAW REVIEW [44:551
ability to quickly develop critical thinking skills when students are immersed
in the law school learning environment and create the need for remediation
before the real teaching of legal analysis can begin.
9
Yet, legal education has been slow to adapt to the modern students’
learning habits.
10
Law schools expect to educate students using the same
Socratic and case methods designed for a population of students whose
undergraduate institutions adequately prepared them.
11
Law schools have a
choice: maintain the status quo in legal education and continue lamenting
the quality of incoming students, or modernize legal education with
meaningful changes that acknowledge students’ inadequacies but use
cognitive science to improve learning outcomes.
Part II discusses how undergraduate students are “academically adrift,”
lacking skills in critical thinking and problem solving as well as effective
writing and study habits. Part III summarizes the empirical research on
study behaviors, specifically which study behaviors are correlated with
academic success. Part IV examines how law schools can use these
empirical research findings in law school classrooms to maximize law
learning.
II. ACADEMICALLY ADRIFT WITH ILLUSIONS OF COMPETENCE
During their undergraduate education, the majority of students are not
developing effective critical thinking, analytical reasoning, or written
communication skills.
12
Undergraduate students enter law school without
truly knowing how to study or learn, leading to improvised study methods,
9
See Bartholomew, supr a note 1, at 905 (“This lack of foundational skills takes its toll
in law school. For example, strong fundamental reading abilities are essential. A deficit in
basic reading skills forces law students to devote extra time to meet even baseline
expectations. Reading for law school is notably different than other disciplines.”); Roach,
supra note 4, at 297; Stuart & Vance, supr a note 4, at 41.
10
See E. Scott Fru ehwald, How to Help Students fro m Disadvantaged Backgrounds
Succeed in Law School, 1 TEX. A&M L. REV. 83, 83 (2013) (“[L]aw school has changed little
in reaction to the new kinds of students it must educate.”); Benjamin V. M adison, III, The
Elephant in Law School Classrooms: Overuse of the Socratic Method as an Obstacle to
Teaching Modern Law Students, 85 U. DET. MERCY L. REV. 293, 295 (2007).
11
See Madison, supra note 10.
12
See IMPROVING UNDERGRADUATE LEARNING, supra note 1, at 1; ACADEMICALLY
ADRIFT, supra note 1, at 12; Kathrin F. Stanger-Hall, Floyd W. Shockley & Rachel E.
Wilson, Teaching Students How to Study: A Workshop on Information Processing a nd Self-
Testing Helps Students Learn, 10 CBELIFE SCIENCES EDUC. 187, 187 (2011) (citing many
studies in recent years documenting a lack of critical thinking skills in college students).

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