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

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, 296–97 (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 296–97; Aida M. Alaka, The

Grammar Wars Come to Law School, 59 J. LEGAL EDUC. 343, 343–44 (2010).

7

See PETER C. BROWN, HENRY L. ROEDIGER III & MARK A. MCDANIEL, MAKE IT STICK:

THE SCIENCE OF SUCCESSFUL LEARNING 16–17 (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 126–27; 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 1–2; 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 CBE—LIFE SCIENCES EDUC. 187, 187 (2011) (citing many

studies in recent years documenting a lack of critical thinking skills in college students).