THE PEDAGOGY OF PROBLEM SOLVING:
APPLYING COGNITIVE SCIENCE TO
TEACHING LEGAL PROBLEM
SOLVING
LARRY
0.
NATT GANTT, It
I. INTRODUCTION
Over the last five years, the legal education system has faced a
new call for instructional transformation as legal academics and law
school regulators forge a fresh debate over how law schools should educate their students.' Books such as the Carnegie Foundation's Educating Lawyers and Best Practicesfor Legal Education, published by
the Clinical Legal Education Association, ignited much of this recent
discussion. 2 The American Bar Association ("ABA") then fueled the
debate as it undertook a comprehensive review of its Standards for
Approval of Law Schools, including the standards relating to the law
school curriculum. 3
t Professor and Associate Dean for Student Affairs, Regent University School of
Law; M.Div., Gordon-Conwell Theological Seminary, 2000; J.D., Harvard Law School,
1994; A.B., Duke University, 1991. I would like to thank William Magee and Eric Bensinger for their research assistance in writing this Article. I would also like to thank
Regent University School of Law and the American Center for Law and Justice for their
funding of this research.
1. As evidence of the importance of this debate, the 2012 Annual Meeting of the
Association of American Law Schools included an all-day workshop on the "Future of
the Legal Profession and Legal Education: Changes in Law Practice: Implications for
Legal Education." See AALS Workshop on the Future of the Legal Professionand Legal
Education: Changes in Law Practice:Implications for Legal Education, AsS'N AM. L.
SCH. (Jan. 5, 2012), https://memberaccess.aals.org/eweb//DynamicPage.aspx?webcode=
TrkDetails&trk key=87clc971-1837-495a-bd43-59ffe07827ef. This workshop included
specific sessions on innovations in legal education and in law teaching. Id. Another
example of how the debate is taking shape is the development of Educating Tomorrow's
Lawyers ("ETL"), an initiative staffed and based at the Institute for the Advancement of
the American Legal System at the University of Denver. See Educating Tomorrow's
Lawyers, INST. FOR ADVANCEMENT AM. LEGAL Sys., http://educatingtomorrowslawyers.
du.edul (last visited Aug. 28, 2011). The mission of ETL is "[t]o encourage and facilitate
innovation in legal education in order to train new lawyers to the highest standards of
competence and professionalism," and ETL has partnered with a consortium of law
schools that are "committed to innovation in the spirit of the Carnegie Report." Id.
2.
Roy STUCKEY ET AL., CLINICAL LEGAL EDUC. ASS'N, BEST PRACTICES FOR LEGAL
EDUCATION: A VISION AND A ROAD MAP (2007), available at http://www.cleaweb.org/Resources/Documents/best-practices-cover.pdf; WILLIAM M. SULLIVAN ET AL., CARNEGIE
FOUND. FOR THE ADVANCEMENT OF TEACHING, EDUCATING LAwYERS: PREPARATION FOR
(2007).
3. The ABA began this review in September of 2008 through its Standards Review Committee formed under the Council of the Section of Legal Education and Admissions to the Bar. See Standards Review Committee, A.B.A., http://www.americanbar.
THE PROFESSION OF LAw
CREIGHTON LAW REVIEW
[Vol. 45
Legal education has traditionally focused on instructing students
how to "think like lawyers," but this recent discussion has placed increased emphasis on other instructional goals, including emphasis on
how law schools should teach their students to be effective "problem
solvers." 4 Although thinking like a lawyer has always involved, at its
core, problem solving, law schools and legal education regulators are
increasingly highlighting the development of problem solving skills in
students as an explicit instructional goal of legal curricula. 5 Standard
302 of the ABA Standards and Rules of Procedure for Approval of Law
Schools covers curriculum and currently provides that law schools
"shall require that each student receive substantial instruction in...
problem solving."6 The proposed revisions to Standard 302 add that
law schools shall establish "learning outcomes" for their students and
that one of these outcomes shall include "competency as an entry-level
practitioner in the . . . professional skills of . . .problem solving
[among others] .",7
One important step in this developing emphasis occurred when
Harvard Law School, the founding institution behind the traditional
case-method instructional model, instituted significant reforms to its
curriculum in 2006.8 Among other changes, the school adopted a firstyear course currently titled "Problem Solving Workshop," which foorg/groups/legal-education/committees/standardsjreview.html
(last visited Aug. 27,
2011).
4. See, e.g., STUCKEY ET AL., supra note 2, at 57 n.211 (reasoning that "helping
students become effective and responsible problem-solvers is the primary goal of legal
education").
5. See Larry 0. Natt Gantt, II, DeconstructingThinking Like a Lawyer: Analyzing
the Cognitive Components of the Analytical Mind, 29 CAMPBELL L. REV. 413 (2007)
(identifying in an appendix the key steps in legal problem solving); see also Gary L.
Blasi, What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions
of Theory, 45 J. LEGAL EDUC. 313, 323-29 (1995).
6. 2011-2012 STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF LAw
SCHOOLS 20 (ABA Section of Legal Educ. & Admissions to the Bar ed., 2011), available
at http://www.americanbar.org/content/dam/aba/publications/misc/legal-education/
Standards/2011_2012_abastandardschapter3.authcheckdam.pdf [hereinafter ABA
Standards]. Interpretation 302-2 adds "problem solving" as one of the "areas of instruction in professional skills that fulfill Standard 302(a)(4)." Id. at 21. That standard requires law schools to mandate that each student obtain "substantial instruction" in
"professional skills generally regarded as necessary for effective and reasonable participation in the legal profession." Id. at 20.
7. Drafts for Considerationat Committee Meetings: Chapter3 - Program of Legal
Education - Clean Copy, A.B.A. 1 (July 9-10, 2011), http://www.americanbar.orgtcontent/dam/aba/migrated/2011 build/legaleducation/committees/standardsreviewdocuments/july201lmeeting/20110621-ch_3-programoflegal-education-clean copy.auth
checkdam.pdf. Unlike the current standards, the proposed standards do not elaborate
in their interpretations the relevance of "problem solving" as a learning outcome. Id.
8. See HLS Faculty Unanimously Approves First-Year Curricular Reform,
HARVARD L. ScH. (Oct. 6, 2006), http://www.law.harvard.edu/news/2006/10/06-curriculum.html; see also Sacha Pfeiffer, Twas a Time for Change, Bos. GLOBE, May 7, 2006,
http://www.boston.com/business/articles/2006/05/07/twas_a-timeforchange/.
2012]
THE PEDAGOGY OF PROBLEM SOLVING
cuses on "complex problem solving" and allows students to "work on a
complex problem (or problems) beyond the bounds of any single doctrinal subject, explored through simulation and team work." 9 This curricular change recognizes a significant shift from the traditional casemethod model; and other law schools have adopted, or are considering,
similar changes to emphasize problem solving and skills development
in their curriculum. 10
In fact, since the 1970s, legal education has experienced enormous growth in the number of courses devoted to teaching law students practical skills, like legal research, oral advocacy, and
negotiations." Many of these skills courses include instruction in
problem solving, particularly many of the first-year "lawyering"
courses, which teach skills such as creative problem solving. 12 Law
schools also instituted clinical programs in order to provide opportuni13
ties for students to apply their analytical skills in a real-life context.
9. HLS Faculty Unanimously Approves First-Year CurricularReform, supra note
8; see also Elaine McArdle, A Curriculum of New Realities, HARVARD L. BuLL., Winter
2008, availableat http://www.law.harvard.edu/news/bulletin/2008/winter/feature-l.php
(discussing new curriculum); Problem Solving Workshop 1, HARVARD L. SCH., http:fl
www.law.harvard.edu/academics/curriculum/catalogindex.html?o=14952
(last visited
Aug. 31, 2011) ("The course is intended to help prepare you for the actual practice of law
by allowing you actively to engage in the sorts of discussions and activities that occupy
real lawyers every day, combining their knowledge of law with practical judgment to
help clients attain their goals within the bounds of the law.").
10. Pfeiffer, supra note 8; see also Larry Kramer, Stanford Law School Dean: We
Aim to Teach Our Students Not Just to Spot Problems, But to Solve Them, A.B.A. J.
LEGAL REBELS (Mar. 29, 2012, 8:00 AM), http://www.abajournal.com/legalrebels/article/
stanfordjlawschool deanlarrykramer/?utm source=maestro&utm_medium=email&
utm-campaign=weekly email (discussing changes Stanford Law School has adopted
since 2004 to improve its instruction in legal problem solving); infra note 16 and accompanying text. One example of a law school's comprehensive adoption of a specific curricular program that emphasizes problem solving is the SCALE® program at
Southwestern Law School. Two-year JD: SCALE®, Sw. L. SCH., http://www.swlaw.edul
academics/jd/scale (last visited Aug. 28, 2011). Even undergraduate institutions are implementing a new institutional shift towards instruction in problem solving. See Jeremy Caplan, As HarvardGoes. . ., TIME, Mar. 5, 2007, at 62-63.
11. In a November 2005 article in the AALS Newsletter, N. William Hines, then
president of the Association of American Law Schools ("AALS") listed the increase in
professional skills training in law schools as the fourth most important change in legal
education in the last 25 years. See N. William Hines, Ten Major Changes in Legal Education Over the Past25 Years, AALS NEWS (Ass'n Am. L. Sch., D.C.), Nov. 2005, available at http://www.aals.org/services_newsletter-presNovO5.php;
see also Robert
MacCrate, Symposium on the 21st Century Lawyer: Keynote Address-The 21st Century
Lawyer: Is There a Gap to be Narrowed?, 69 WASH. L. REV. 517, 520 (1994) ("The growth
of skills and values curriculum in law schools during the 1970s is unquestionably the
most significant development in legal education in the post-World War II era.").
12. See, e.g., Alan M. Lerner, Law & Lawyering in the Work Place: Building Better
Lawyers by Teaching Students to Exercise CriticalJudgment as Creative Problem Solvers, 32 AKRON L. REV. 107 (1999) (describing "Law & Lawyering in the Work Place"
course focusing on teaching problem solving).
13. See, e.g., MacCrate, supra note 11, at 520; Kurt M. Saunders & Linda Levine,
Learning to Think Like a Lawyer, 29 U.S.F. L. REV. 121, 130-31 (1994).
CREIGHTON LAW REVIEW
[Vol. 45
Many of these clinical courses include explicit instruction in problem
solving.14 Similarly, many law schools have instituted academic support programs ("ASPs") that emphasize teaching skills like problem
solving that make students successful in law school and in their future
careers.15 In sum, a survey of curricular offerings at ABA approved
law schools reveals that 113 schools, or 56.5% of schools approved to
solvconfer the J.D. degree, now make explicit reference to "problem
16
ing" in their course or program descriptions available online.
14. See, e.g., Lodestar Mediation Clinic, ARIz. ST. U.C.L., http://www.law.asu.edu/
clinics/Clinics/LodestarMediationClinic.aspx (last visited Aug. 12, 2011).
15. See, e.g., Richard Cabrera & Stephanie Zeman, Law School Academic Support
Programs - A Survey of Available Academic Support Programsfor the New Century, 26
WM. MITCHELL L. REV. 205 (2000) (describing a survey of ABA approved law schools
which found over ninety percent of the 151 respondent schools reported having some
type of program in academic support); Leslie Yalof Garfield & Kelly Koenig Levi, Finding Success in the "Cauldronof Competition": The Effectiveness of Academic Support
Programs, 2004 BYU EDUC. & L.J. 1 (2004).
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THE PEDAGOGY OF PROBLEM SOLVING
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SCH. L., http://law.scu.edu/academics/courses/collaborative-practice-319.cfm (last visited Aug. 9, 2011); Course Offerings Fall 2008 - Present, SEATTLE U. SCH. L., http://law.
seattleu.edu/xl471.xml (last visited Aug. 9, 2011) (providing course descriptions, including one for Client Counseling and Negotiation); First-Year & Upper-Level Course Descriptions 2010-2011, U.S.C. SCH. L. 14, http://www.law.sc.edulacademics/upper-level_
course.descriptions.pdf (last visited Aug. 9, 2011) (providing course descriptions, including one for Sales); Required Courses, S. TEX. C.L. Hous., http://www.stcl.edulregistrar/required.htm (last visited Aug. 9, 2011) (providing descriptions for required
courses, including Legal Research & Writing I); Lawyering Skills, S. ILL. U. SCH. L.,
http://www.law.siu.edu/Current%20Students/lawyerskills.php (last visited Aug. 9,
2011); Two-Year JD: Scale®,supra note 10; Mediation Clinic, ST. U. N.Y. BUFFALO L.
SCH., http://law.buffalo.edu/Academic-Programs_- AndResearch/default.asp?firstlevel=
1&secondlevel=l&filename=MediationClinic (last visited Aug. 3, 2011); Course Descriptions: Required Courses, STETSON U.C.L., http://www.law.stetson.eduloffices/registrar/
course-descriptions.php (last visited Aug. 9, 2011) (providing course descriptions, including one for Advanced Critical Thinking and Expression of Legal Analysis); Juris
Doctor Skills Menu Requirement, SUFFOLK U.L. SCH., http://www.law.suffolk.edu/academic/jd/skills.cfm (last visited Aug. 9, 2011); Director's Statement, SYRACUSE U.C.L.,
http://law.syr.edu/academics/academic-programs/clinical-legal-education/directorsstatement.aspx (last visited Aug. 9, 2011) (describing seminars to include an emphasis
on problem solving); Legal Research and Writing, TEMPLE U. BEASLEY SCH. L., http://
www.law.temple.edu/Pages/Faculty/LRW-Main.aspx (last visited Aug. 10, 2011);
Course Descriptions, U. TENN. C.L., http://www.law.utk.edu/administration/records/
course-descriptions.shtml (last visited Aug. 10, 2011) (providing course descriptions, including one for Environmental Law Clinic); Clinical Education at UT Law: GeneralInformation on Clinics and Internships, U. TEX. SCH. L., http://www.utexas.edu/law/
clinics/information.php (last visited Aug. 10, 2011); Course Descriptions,TEX. WESLEYAN
20
U. SCH. L. 40, http://www.law.txwes.edu/Portals/0/docs/11-12%20PPP%20Courses%
for%20Web.pdf (last visited Aug. 10, 2011) (providing course descriptions, including one
for Interviewing, Negotiation, & Collaborative Law); U. TOLEDO C.L., http://law.utoledo.
edu/students/pdf/CourseDescriptions.pdf (last visited Aug. 10, 2011) (providing course
descriptions, including one for LAWN 9910 - Legal Clinic); Course Description: Settling
CREIGHTON LAW REVIEW
[Vol. 45
Criticism of the traditional case method of instruction is not new.
Lawyers, even legal academics, often complain that law schools do not
17
adequately prepare students for the daily realities of law practice.
According to Emily A. Spieler, Dean of Northeastern University
School of Law:
The case method's claim to fame was that it taught people
how to think like a lawyer in terms of critical analysis and
Legal Disputes: Negotiation, Mediation & Mediation Representation, TouRo C.L.
CENTER, http://www.tourolaw.edu/Academics/coursedetails.aspx?id=704
(last visited
Aug. 10, 2011); Legal Research & Writing, TULANE U. ScH. L., http://www.law.tulane.
edu/tlsAcademicPrograms/courseDetail.aspx?id=1802&terms=problem%20solving
(last
visited Aug. 10, 2011); Historical Course List, U. UTAH C.L., http://www.law.utah.edu/
currentcourse-listI (last visited Aug. 10, 2011) (providing course descriptions, including
one for Comparative Dispute Resolution); Law School, VANDERBILT U.L. SCH. 22, http:l!
www.vanderbilt.edu/catalogs/law/law.pdf#courses (last visited Aug. 10, 2011) (providing
course descriptions, including one for Law 796 - Negotiation); All VLS Courses, VT. L.
ScH., http://www.vermontlaw.edu/Academics/Degrees/Al VLSCourses.htm?category=
&faculty=x6638&course=x1267 (last visited Aug. 10, 2011) (providing course descriptions, including one for Environmental Problem Solving); Display Catalog Courses, VILLANOVA U. SCH. L., https:l/novasis.villanova.edu/pls/bannerprd/bvckctlg.PDisplayLaw
Courses (last visited Aug. 10, 2011) (providing course descriptions, including one for
Criminal Prosecution 21st Century offered in the fall of 2011); Applied Problem Solving,
U. VA. SCH. L., http://www.law.virginia.edulawweb/course.nsf/PrCHPbS/112110001
(last visited Aug. 10, 2011); Student FAQs, WAKE FOREST U. SCH. L., http:/!elder-clinic.
law.wfu.edu/sfaq/ (last visited Aug. 10, 2011) (proving feedback on who should take a
clinic course); Course Descriptions,Negotiations - Study Abroad, Summer Law Program
in Barbados, WASHBURN U. SCH. L., http://washburnlaw.edu/curriculum/courses-n-s.
php (last visited Aug. 10, 2011) (providing course descriptions, including one for Remedies); Alumni Mentoring Program,WASHINGTON & LEE U. SaH. L., http://law.wlu.edu/
career/page.asp?pageid=1034 (last visited Aug. 10, 2011); Course Requirements for the
J.D., WASHINGTON U. SCH. L., http:/law.wustl.edu/academics/pages.aspx?id=8385 (last
visited Aug. 10, 2011) (providing course descriptions, including one for Legal Practice I);
Course Schedule and Descriptions,W. NEW ENG. U. SaH. L., http://wwwl.law.wne.edul
currentindex.cfm?selection=doc.8301&courselisting=alpha&term=Fall#
(last visited
Aug. 10, 2011) (providing course descriptions, including one for Legal Research & Writing); Legal Methods, WIDENER U. SCH. L., http://law.widener.edu/Academics/LegalMethods.aspx (last visited Aug. 10, 2011); Course Descriptions,WILLAMETTE U.C.L., http:l!
www.willamette.edu/wucl/programs/courses/descriptions.html
(last visited Aug. 10,
2011) (providing course descriptions, including one for Business Lawyering); Legal
Practice Center, WILLIAM MITCHELL C.L., http://www.wmitchell.edu/Legal-PracticeCenter/Legal-Practicum! (last visited Aug. 10, 2011) (providing a description of its Legal
Practicum: General Practice); ProgramDescription, U. Wis. L. SCH., http://law.wisc.edu/
lrw/program-description.html (last visited Apr. 13, 2012); Courses and Curriculum:
Academics, U. Wyo. C.L., http://www.uwyo.edulaw/current-students/courses-and-curriculumlindex.html (last visited Aug.10, 2011); YALE L. SCH., http://ylsinfo.law.yale.edu/
wsw/prereg/courseDetails.asp?cScope=Spring (last visited Aug. 10, 2011) (providing
course descriptions, including one for Community and Economic Development); see also
Center for Applied Legal Research, HOFSTRA L., http://law.hofstra.edu/centers/calr/ (last
visited Apr. 23, 2012) (describing the center as a "forum for studying theories of legal
reasoning, researching issues related to the solving of legal problems, decision-making
in practice, and the development of pedagogies to train law students for the practice of
law").
17. Pfeiffer, supra note 8; see Stephen J. Friedman, Why Can't Law Students Be
More Like Lawyers?, 37 U. TOL. L. REV. 81 (2005).
20121
THE PEDAGOGY OF PROBLEM SOLVING
understanding the way in which the judicial process resolves
issues, but it falls pretty far short of actually training people
to know how to be a lawyer.1 8
Similarly, Stephen J. Friedman, President of Pace University and
former Dean of Pace Law School, has written:
The classical paradigmatic relationship between legal education and training to be a lawyer is simple: the most important
function of law school education is to teach its students to
think like lawyers, and law firms will do the rest. I do not
gainsay the importance of learning to think like a lawyer. At
the same time, what is ordinarily meant by "thinking like a
lawyer" is a mode of analytical thinking that does not include
a host of other purely intellectual skills that are important
parts of the armament of a successful lawyer. 19
Other legal educators have further underscored that the recent
emphasis in legal education on the development of students' practical
the underlying
skills has overlooked a needed emphasis on developing
20
solving.
problem
legal
to
central
skills
intellectual
Indeed, if legal education is to educate students in how to be expert legal problem solvers, it must do more than teach doctrine because future lawyers must be self-learners as they solve the legal
problems they encounter in practice. 2 1 Legal instruction in skills, in
turn, should concentrate on cognitive skills like problem solving, not
just practical skills like writing or oral advocacy, because the cognitive
skills are foundational to the others. 22 Moreover, teaching important
skills builds students' self-confidence, and research has shown that
23
law students' self-confidence enhances their academic performance.
18. Pfeiffer, supra note 8.
19. Friedman, supra note 17, at 84.
20.
E.g., Anthony G. Amsterdam, Clinical Legal Education-A 21st Century Per-
spective, 34 J. LEGAL EDUC. 612, 612 (1984) (reasoning legal education has "failed to
develop in students ways of thinking within and about the role of lawyers-methods of
critical analysis, planning, and decision-making which are not themselves practical
skills but rather the conceptual foundation for practical skills and for much else, just as
case reading and doctrinal analysis are foundations for practical skills and for much
else").
21. See Kathy L. Cerminara, Remembering Arthur: Some Suggestions for Law
School Academic SupportPrograms, 21 T. MARSHALL L. REV. 249, 256 (1996) (reasoning
that teaching legal doctrine alone can create dependency problems "lead[ing] to students feeling as if they need tutoring and must depend on someone to help them learn");
cf Paula Lustbader, From Dreams to Reality: The Emerging Role of Law School Academic Support Programs, 31 U.S.F. L. REV. 839, 853 (1997) (contending that law school
academic support programs should focus on teaching students analytical skills rather
them teaching them legal doctrine).
22. See Gantt, supra note 5, at 422-23.
23. See CAROLYN JANE INOUYE, UNDERSTANDING THE LAW SCHOOL EXPERIENCE: ENHANCING STUDENT ACHIEVEMENT AND SATISFACTION 141 (1989) (unpublished Ph.D. dissertation, University of California, Los Angeles) (on file with UCLA Library, University
CREIGHTON LAW REVIEW
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Several legal scholars have discussed problem solving and its relevance to legal education. 24 In much of this discussion, scholars have
offered an expansive definition of the skills law students should develop in order to solve legal problems. 2 5 Many have used the term
"creative problem solving" to stress how solving clients' problems often
requires non-legal and multidisciplinary approaches. 26 Others have
presented broad approaches to problem solving that are intended to
apply in various contexts, legal and otherwise. 2 7 What is not compreof California, Los Angeles) ("A student's self-rating of exam-taking ability was positively
related to GPA .... Thus, the more confident students were about their exam-taking
abilities, the higher their first-term grades.").
24. See, e.g., Alan M. Lerner, Using Our Brains: What Cognitive Science and Social
Psychology Teach Us About Teaching Law Students to Make Ethical, ProfessionallyResponsible Choices, 23 QUINNIPIAc L. REV. 643, 695-97 (2004) (discussing the benefits of
using a problem-based learning approach, rather than the Langdellian case method, to
teach students how to solve complex problems); Stephen Nathanson, Developing Legal
Problem-Solving Skills, 44 J. LEGAL EDUC. 215, 215 (1994) (reasoning how teachers
need "to synthesize general problem-solving skills and context-specific knowledge"). See
generally Janet Reno, Lawyers as Problem Solvers: Keynote Address to the AALS, 49 J.
LEGAL EDUC. 5, 5-6 (1999).
25. See, e.g., Linda Morton, A New Approach to Health Care ADR: Training Law
Students to Be Problem Solvers in the Health Care Context, 21 GA. ST. U. L. REV. 965,
968-69 (2005) ("Problem solving .... is a more flexible, multidisciplinary approach to
understanding and resolving problems. Problem solving involves numerous core skills,
attitudes, and values, in addition to knowledge of processes."). Morton, in fact, provides
a detailed list of the facets of problem solving:
Problem solving skills include listening, collaborating, empathizing, working in
teams, seeing the big picture, fact-finding, communicating, consensus building,
making good judgments, creative thinking, assessing needs, working with
other disciplines, and asking the right questions. Problem solving attitudes
involve being open-minded, resilient, persistent, non-judgmental, humble, respectful, curious, trusting, aware of one's perspective and bias, able to accept
criticism, willing to change, willing to deal with ambiguity, and willing to explore and stretch one's limits. Values, which certainly overlap with skills and
attitudes, include respect for relationships, respect for differences, respect for
culture, respect for others' knowledge, appreciation for decentralized decisionmaking, willingness to admit one's limitations, inclusiveness, creativity, selfawareness, and self-reflection.
Id. at 970-71.
26. E.g., James M. Cooper, Towards a New Architecture:Creative Problem Solving
and the Evolution of Law, 34 CAL. W. L. REV. 297, 312 (1998) ("[P]roblems may be prevented or solved more effectively by professionals from many disciplines joining together."); Janeen Kerper, Creative Problem Solving vs. The Case Method: A Marvelous
Adventure in Which Winnie-the-Pooh Meets Mrs. Palsgraf,34 CAL. W. L. REV. 351, 354
(1998) ("[P]roblems are viewed as multidimensional, often requiring nonlegal or multidisciplinary solutions.").
27. See, e.g., Katherine R. Kruse, Biting Off What They Can Chew: Strategiesfor
Involving Students in Problem-Solving Beyond Individual Client Representation, 8
CLINICAL L. REV. 405, 422 (2002) (delineating four stages in a well-known prototype of a
problem-solving heuristic: identifying the problem, exploring solutions, developing and
implementing a strategy, and revising that strategy in the light of newly acquired information); Linda Morton, Teaching Creative Problem Solving: A ParadigmaticApproach,
34 CAL. W. L. REV. 375, 381 (1998) (offering a "visual model for creative problem solving" that consists of identifying and understanding the problem; choosing, posing and
implementing solutions; and analyzing the results, in sequence, with each step subject
20121
THE PEDAGOGY OF PROBLEM SOLVING
hensively analyzed in these discussions is the heart of legal problem
solving skills, the analytical and critical thinking skills that make up
the cognitive components of thinking like a lawyer. 28 Such cognitive
components include linear thinking, searching for coherence, crafting
arguments, attending to detail, assessing relevance, perceiving ambiguity, dissecting thought, seeing others' perspectives, and logical
thinking. 2 9 In the language of educational and cognitive psychologists, what is overlooked is the basic "procedural knowledge" that is
30
important to solving legal problems.
In this effort to equip students with the skills needed to be expert
legal problem solvers, legal educators should learn from educational
and cognitive psychologists' extensive examination of what it means to
be an "expert" in any discipline. Experts in every discipline are characterized by the following attributes: "large, organized schematic networks within a particular domain of expertise, choosing efficiently
from a large repertoire of useful strategies, quickly constructing a detailed integrated mental model of a problem, performing skills in a
highly automated fashion, and carefully monitoring the difficulty of
problems and one's ability to solve problems." 3 1 Such research has
to re-examination through values, interests, investigation and analysis of how to prevent a recurrence of the problem); Kimberly O'Leary, Using "Difference Analysis" to
Teach Problem-Solving, 4 CLINICAL L. REV. 65, 81 (1997) (expanding the phase known
as "solution-finding" into a sequence of investigations into how actions, which could be
taken to address the client's needs, affect others). See generally WAYNE W. REEVES,
COGNITION AND COMPLEXITY: THE COGNITIVE SCIENCE OF MANAGING COMPLEXITY 111
(1996); ARTHUR B. VAN GUNDY, CREATIVE PROBLEM SOLVING: A GUIDE FOR TRAINERS AND
MANAGEMENT 64 (1987); Jonathan Baron, Reflective Thinking as a Goal of Education, 5
INTELLIGENCE 291, 295 (1981).
28. See Gantt, supra note 5, at 422-23.
29. Id. at 479. Relevant cognitive components also include higher order intellectual skills, such as "ends-mean thinking, information acquisition, and contingency planning." See Amsterdam, supra note 20, at 614-15. These skills are more difficult to teach
than the core skills of legal analysis noted above. Developing such skills is certainly a
proper goal of legal education, but it is a secondary goal behind the core skill
development.
30. See Gregory Schraw, Knowledge: Structures and Processes, in HANDBOOK OF
EDUCATIONAL PSYCHOLOGY 245, 249 (Patricia A. Alexander & Philip H. Winne eds., 2d
ed. 2006) (defining "procedural knowledge" as "knowledge about how to do things").
Psychologists define problem solving generally as "cognitive processing directed at
achieving a goal when no solution method is obvious to the problem solver." Richard E.
Mayer & Merlin C. Wittrock, Problem Solving, in HANDBOOK OF EDUCATIONAL PSYCHOL-
OGY, supra, at 287. Problem solving involves both creative and critical thinking. Creative thinking pertains to "generating ideas that could be used to solve a problem"
whereas critical thinking pertains to "evaluating ideas that could be used to solve a
problem." Id. Psychologists also call "procedural knowledge," as it relates to problem
solving, knowledge about "strategies." Michael Pressley & Karen R. Harris, Cognitive
Strategies Instruction:From Basic Research to Classroom Instruction, in HANDBOOK OF
EDUCATIONAL PSYCHOLOGY, supra, at 265, 266.
31. Schraw, supra note 30, at 255 (citing R.J. Sternberg, Metacognition, Abilities,
and Developing Expertise: What Makes an Expert Student?, in METACOGNITION IN
CREIGHTON LAW REVIEW
[Vol. 45
also demonstrated that experts pass through three stages in their acquisition of expertise: knowledge accumulation, knowledge integration, and automation and tuning. 32 Law schools have historically
focused on the first stage. 3 3 Further examination is needed, however,
on how law schools can improve their instruction in stages two and
three.
In order to analyze how law schools can best teach legal problem
solving, this Article draws upon the volumes of research in cognitive
and educational psychology on problem solving and upon the hundreds of student evaluations since 2002 of Regent University School of
Law's Summer Academic Success Program and Academic Orientation. 34 This Article operates from the assumption that legal education
is, at least in significant part, about teaching students how to solve
legal problems. 35 From this assumption, this Article first considers
the research on how problem solving skills can be taught in a way that
enables students to transfer the skills to other contexts. This Article
specifically looks at law school and undergraduate studies that support the contextualized teaching of problem solving skills. This Article next considers the extent to which problem solving instruction
hinges on students' doctrinal knowledge. In the analysis, it discusses
studies that suggest that legal educators must provide students with a
firm foundation in doctrinal knowledge, also called "domain knowlLEARNING AND INSTRUCTION: THEORY, RESEARCH, AND PRACTICE 247-60 (H.J. Hartman
ed., 2001)).
32. Id. at 256.
33. Amsterdam, supra note 20, at 618.
34. As Director of Regent's Academic Success Program, I revised our Summer Academic Success Program and our Academic Orientation in 2002. In these programs, students spend their class time alternating between two components, a doctrinal
component and a skills component. In the doctrinal component, professors who teach
specific subject areas, such Contracts, Torts, Property, or Constitutional Law, teach students discrete legal concepts in those areas. Students have eight classes taught by two
professors in two subject areas during the Summer ASP, and they have two classes
taught by one professor in one subject area during Academic Orientation. In the skills
component, Gloria Whittico, Associate Director of Academic Success, and I complement
the doctrinal component by using the material covered in that section as a vehicle to
discuss specific skills that will enhance students' law school learning experience, such
as techniques for briefing cases, outlining courses, and preparing for and taking law
school examinations. Both programs also include examination on the doctrinal material
covered-two exams in the Summer ASP and one in Academic Orientation. See L.O.
Natt Gantt, II, ContextualizingAcademic Support, LEARNING CURVE (Ass'n of Am. Law
Sch. Section on Academic Support), Fall 2009, at 7-8, available at http://www.aals.org/
documents/sections/academicsupportlLearningCurve2009l2Fall.pdf.
35. See Gantt, supra note 5, at 437-39. Teaching problem solving is not unique to
the law school context. Educational psychologists, in fact, agree that "meaningful learning" in any discipline involves teaching students how to apply the knowledge they are
learning to solve new problems. Mayer & Wittrock, supra note 30, at 289.
20121
THE PEDAGOGY OF PROBLEM SOLVING
edge," 36 before those students can most effectively learn problem solving skills. This Article then considers the role "deliberate practice"
should play in teaching legal problem solving. 3 7 This Article examines how legal education can provide students with such practice opportunities and, in turn, increase their self-regulation in the learning
process. Finally, this Article recognizes that, unless hours are added
to law school curricular requirements, increases in effective problem
solving instruction will most likely result in decreases in doctrinal
content coverage. This Article therefore concludes by discussing options for curricular change and by suggesting considerations for legal
educators as they seek to find the appropriate balance between doctrinal content coverage and problem solving instruction.
II.
PROBLEM SOLVING TRANSER
Given that legal education should develop good legal problem
solvers, legal education must train its students how to transfer the
knowledge they learn in the classroom to new situations in a professional setting. Educational and cognitive psychologists now recognize
that problem solving transfer occurs best when instructors teach students generalizable principles and strategies that can be applied to
various problems. 38 Specific issues regarding how best to teach
knowledge transfer, however, have generated extensive discussion
among educational and cognitive psychologists. 39 This psychological
research will first be discussed, and then relevant studies in the legal
context and applications to law school pedagogy will be examined.
A.
CONTEXTUALIZING PROBLEM SOLVING
In assessing knowledge transfer, a first question that arises is the
extent to which education in legal problem solving should be taught in
a specific doctrinal context. Educators and cognitive psychologists
have considered generally this issue of whether problem solving skills
need to be taught in the context of specific subject matter relevant to
the goals of the instruction at issue. 40 The researchers have debated
whether instructors can teach "executive learning skills" such as prob36. See Stefan H. Krieger, Domain Knowledge and the Teaching of Creative Problem Solving, 11 CLINICAL L. REV. 149, 153 (2004).
37. See K. Anders Ericsson, The Acquisition of Expert Performance and Problem
Solving, Construction and Modification of Mediating Mechanisms Through Deliberate
Practice, in THE PSYCHOLOGY OF PROBLEM SOLVING 31-83 (J.E. Davidson & R.J. Stemberg eds., 2003) (discussing, among other topics, what psychologists call "deliberate
practice").
38. RICHARD E. MAYER, LEARNING AND INSTRUCTION 28-30 (2d ed. 2008).
39. See, e.g., Mayer & Wittrock, supra note 30, at 289-99.
40. See, e.g., Susan D. Bennett, Embracing the Ill-Structured Problem in a Community Economic Development Clinic, 9 CLINICAL L. REV. 45, 65-66 (2002).
CREIGHTON LAW REVIEW
[Vol. 45
lem solving successfully through "detached" training, where instruction concentrates on the transferable learning strategy itself, or
whether students will only internalize such skills when they learn
them in the context of a specific subject matter through "embedded"
training. 4 1 An example of such "detached" training would be a standalone course on legal problem solving, whereas an example of "embedded" training would be a Professional Responsibility course where the
legal ethics rules are discussed and then are directly applied in the
42
classroom discussion to various ethical problems.
As a general principle, the psychological research demonstrates
that students more effectively learn problem solving skills when they
are taught within a specific doctrinal domain as opposed to a standalone environment. 4 3 Even this embedded approach, however, has
two evident weaknesses that must be overcome in order to foster
knowledge transfer. First, the combination of instruction in doctrine
44
and problem solving may "disrupt processing" of doctrinal material.
This issue is analyzed later in Section III. Second, because the problem solving skills are taught in a specific context, students may have
difficulty perceiving how the skills can be transferred beyond the specific context in which they learned it. 45 This issue is discussed below.
The issue of transfer and contextualization relates to a powerful
movement in educational and cognitive psychology called "situated
learning." 46 Situated learning emphasizes the theory that "[m]uch of
what is learned is specific to the situation in which it is learned."47 In
several studies, researchers have found that individuals who practice
specific skills, like mathematic computational skills, in real-life situations are not able at times to transfer those skills to problems in a
41. Sharon J. Derry & Debra A. Murphy, DesigningSystems That Train Learning
Ability: From Theory to Practice, 56 REV. EDUC. RES. 1, 26, 31 (1986).
42. Cf. id. at 26-27 (providing an example of detached training as an actual multidisciplinary college course titled "Patterns of Problem Solving" and an example of embedded training as a course on interpersonal communication that addresses strategies
for solving interpersonal problems). The Harvard Law School course titled "Problem
Solving Workshop" appears to be detached training. See supra notes 8-9 and accompanying text.
43. Mayer & Wittrock, supra note 30, at 299.
44. Derry & Murphy, supra note 41, at 31.
45. Id.; see also Andrea A. Curcio, Gregory Todd Jones & Tanya M. Washington,
Does PracticeMake Perfect?An EmpiricalExaminationof the Impact of PracticeEssays
on Essay Exam Performance, 35 FLA. ST. U. L. REV. 271, 306-08 (2008) (finding that
completing writing exercises and receiving feedback on those exercises in one doctrinal
class did not lead law students to perform better in their other classes).
46. See, e.g., John R. Anderson et al., Situated Learning and Education, EDUC. RESEARCHER, May 1996, at 5, 5.
47. Id.
20121
THE PEDAGOGY OF PROBLEM SOLVING
school context. 48 On the other hand, researchers in other studies have
found that the individuals were able to transfer learning across contexts. 49 For instance, numerous studies have found modest to sizeable
correlations between school achievement and work performance, even
after controlling for the effects of general ability measures. 50
Educational experts have determined that the effectiveness of
context-bound learning depends on the type of knowledge being acquired and the way the material is studied. 5 1 From this general proposition, researchers have found that knowledge is more contextbound when it is taught in just a single context.5 2 Furthermore, researchers have identified other variables that affect the amount of
knowledge transfer. First, studies have shown that transfer is a function of the degree to which the transfer task and target task share
cognitive and symbolic elements. 53 Second, studies have indicated
that transference increases by increasing the number of analogs from
one to two and by suggesting that problem solvers look to the transfer
task in finding a solution to the target task. 54 Several studies have
drawn from these conclusions and found that instructors can improve
transfer when they provide students with multiple examples and explicitly encourage students to reflect on how the knowledge might be
transferred. 55 Indeed, this explicit encouragement seems important
as further research has confirmed that learning is enhanced by the
instructor's facility in creating an environment in which learners feel
safe to discuss, evaluate, and experiment with the concepts being
taught such that they have a self-conscious awareness of transferabil56
ity issues.
48.
Id. at 6 (analyzing studies discussed in JEAN LAVE, COGNITION IN PRACTICE,
MIND, MATHEMATICS, AND CULTURE IN EVERYDAY LIFE (1988) and T.N. Carraher et al.,
Mathematics in the Streets and in the Schools, 3 BRIT. J. DEVELOPMENTAL PSYCHOL. 21
(1985)).
49. Anderson et al., supra note 46, at 6.
50. E.g., M. Boissiere et al., Earnings, Schooling, Ability, and Cognitive Skills, 75
AM. ECON. REV. 1016 (1985); John E. Hunter & Ronda F. Hunter, Validity and Utility of
Alternative Predictorsof Job Performance, PSYCHOL. BULL., Jan. 1984, at 72.
51. Anderson et al., supra note 46, at 7-8.
52. R.A. Bjork & A. Richardson-Klavehn, On the Puzzling Relationship Between
Environmental Context and Human Memory, in CURRENT ISSUES IN COGNITIVE
313, 317-18 (C. Izawa ed.,
1989).
53. MARK. K. SINGLEY & JOHN R. ANDERSON, TRANSFER OF COGNITIVE SKILL 3, 248
(1989).
54. Mary L. Gick & Keith J. Holyoak, Schema Induction and Analogical Transfer,
COGNITIVE PSYCHOL., Jan. 1983, at 1.
55. Anderson et al., supra note 46, at 7.
56. See Bennett, supra note 40, at 66-67 (citing Amy Edmondson et al., Speeding
Up Team Learning, HARVARD BUS. REV., Oct. 2001, at 125). Edmondson and her coauthors also underscore the importance of team-building to learning, but her supporting
study goes more to how team learning can best be structured than to arguing that team
PROCESSES: THE TULANE FLOWEREE SYMPOSIUM ON COGNITION
CREIGHTON LAW REVIEW
[Vol. 45
A related research focus has been the extent to which the "training by abstraction" in traditional classroom settings benefits learning
versus training in a clinical or apprenticeship context. Although educational psychologists have lauded the benefits of clinical training, researchers have found that, in certain instances, abstract instruction
can result in successful transfer while clinical, or "concrete," instruction can result in a failure to transfer. 5 7 Educational psychologists
John Anderson, Lynne Reder, and Herbert Simon thus offer a framework for assessing whether abstract or concrete instruction is to be
preferred:
If abstract training is given, learners must . . .absorb the
money and time costs of obtaining supplemental training for
each distinct application. But if very specific training is
given, they must completely retrain for each application.
Which is to be preferred, and to what extent, depends on a
balance among (a) the cost of the more general abstract training, (b) the cost of the specific training, (c) the cost of the supplemental training, and (d) the range of jobs over which the
learner is likely to have occasion to apply what was learned.
Someone who will spend years performing a single set of very
specific tasks might be well advised to focus on specific training. But if the cost of supplemental training is not large (i.e.,
if there is substantial transfer over range of tasks), if technological or other changes are likely to alter tasks substantially
over the years, of if the range of tasks the learner is likely to
address over time is substantial, then abstract training with
58
supplemental applications training is clearly preferable.
In this debate, many cognitive psychologists add that learning occurs best when instructors combine abstract instruction with concrete
examples illustrating the principles from that instruction. 59 Some
add that this hybrid approach is particularly effective when students
would be required to apply the principles in a variety of often unpre60
dictable real-world tasks.
On the type of concrete illustrations that should be used, cognitive
psychologists have discussed whether such illustrations should be "authentic" problems such as those the students might face in everyday
life. Some have advocated for the use of such problems. 6 1 Others
learning is a necessary component to effective educational environments generally. Edmondson et al., supra, at 127-32.
57. Anderson et al., supra note 46, at 8.
58. Id.
59. Id. at 8-9.
60. Id. at 9.
61. See, e.g., John Seely Brown et al., Situated Cognition and the Culture of Learning, EDUC. RESEARCHER, Jan.-Feb. 1989, at 34; Richard Lesh & Susan J. Ramon,
Trends, Goals, and Prioritiesin Mathematics Assessment, in AMERICAN ASSOCIATION FOR
2012]
THE PEDAGOGY OF PROBLEM SOLVING
have similarly argued that students learn best when they face complex, social problems that reflect real-life situations. 62 In contrast,
others have responded that such authenticity is not critical and that
the main goal should be to motivate students so that they are engaged
in the underlying cognitive processes that will transfer.6 3 They similarly contend that learning need not be situated in complex, social
problems because substantial research supports the conclusion that
learning is more effective when specific, relevant tasks are isolated as
much as possible from the main task; but they add that learning in a
complex, social context may be important to motivate students so they
64
can see how their learning applies in such a context.
B.
PEDAGOGICAL IMPLICATIONS
From this review of the foundational research in educational and
cognitive psychology, the question arises of which specific instructional strategies in the law school context lead most effectively to
problem solving transfer. Relevant studies have often taken place in
the context of evaluating the academic support programs ("ASPs") of
undergraduate institutions and law schools. 6 5 The growth of ASPs in
66
both the undergraduate and law school contexts has been extensive.
They serve as ripe environments to assess problem solving development because many such programs specifically seek to improve stu67
dents' skills related to problem solving and critical thinking.
THE ADVANCEMENT OF SCIENCE: ASSESSMENT OF AUTHENTIC PERFORMANCE IN SCHOOL
MATHEMATICS 3, 14-15 (Richard Lesh & Susan J. Lamon eds., 1992).
62. See JEAN LAvE & ETIENNE WENGER, SITUATED LEARNING: LEGITIMATE PERIPHERAL PARTICIPATION 35 (John Seely Brown et al. eds., 1991); Richard Lesh & J.S.
Zawajeski, Problem Solving, in TEACHING MATHEMATICS IN GRADES K-8: RESEARCH-
BASED METHODS 49-88 (Thomas R. Post ed., 1992); Lauren B. Resnick, The 1987 Presidential Address: Learning In School and Out, EDUC. RESEARCHER, Dec. 1987, at 13-20.
63. Anderson et al., supra note 46, at 8-9.
64. Id. at 9; see also infra notes 286-88 and accompanying text (noting that Millennials are particularly inspired to learn when instructors use authentic illustrations).
Researchers have also tested the benefits of cooperative, or group, learning over individual learning, but such studies have been inconclusive. Anderson et al., supranote 46, at
9-10.
65. Although studies have occurred in the context of law school ASPs, effective
problem solving must be taught throughout the law school curriculum and not confined
to the school's ASP. Cf Adam G. Todd, Academic Support Programs:Effective Approach
Through a Systemic Approach, 38 GONZ. L. REv. 187, 191 (2003) ("Academic assistance
programs can potentially act as substitutes for meaningful change in the rest of the law
school institution by 'enabling' the rest of the faculty to continue 'dysfunctional' teaching methods and assessment techniques.").
66. Cynthia Schmidt & Ann L. lijima, A Compass for Success: A New Directionfor
Academic Support Programs,4 CARDOZO PUB. L. POL'Y & ETHICS J. 651, 651-52 (2006).
67. Law school ASP designs have been discussed in the legal literature. See id.
For an example of a well-developed undergraduate academic support program, see information on the Center for Academic Support at the University of Southern California.
Center for Academic Support, U. S. CAL., http://sait.usc.edu/academicsupport/center-
CREIGHTON LAW REVIEW
[Vol. 45
Studies in the undergraduate context are first discussed briefly and
then studies in the law school context are analyzed.
1.
UndergraduateStudies
Colleges began offering academic support as early as the late
1800s, and these efforts expanded in the 1950s and 1960s as many
such programs began to address students' emotional as well as academic needs and began to target minority students. 68 Numerous
studies have examined the effectiveness of such programs at the undergraduate level. 6 9 Some studies have found that they benefited the
academic performance of the participants but that the participants
still experienced high levels of anxiety. 70 Others have found that college ASPs are most successful when they address not only students'
academic needs but also their social and cultural needs. 7 1 In a comprehensive survey of this research on such programs, Mary E. Levin
and Joel Levin concluded that "virtually every successful" ASP designed to increase retention of at-risk minority students focused on
developing students' study skills and tactics for test preparation and
did so within an "integrated model wherein domain-specific skills are
taught in conjunction with the courses that students are currently
to the studies of
taking."72 This model of integration relates directly
3
7
ASPs in the law school context discussed below.
programs/index.html (last visited Aug. 12, 2011). This program includes a course titled
"Education Psychology 110: Motivation and Learning Strategies," which includes "cognitive psychology and motivation theory to improve students' learning in different academic disciplines." See Center for Academic Support: Structured CurriculumProgram,
U. S. CAL., http://www.usc.edu/student-affairs/asn/scp.htm (last visited Aug. 12, 2011).
68. See Chen-Lin C. Kulik et al., College Programs for High-risk and Disadvantaged Students: A Meta-analysis of Findings, 53 REv. EDUC. RES. 397, 397-98 (1983).
69. See Kristine S. Knaplund & Richard H. Sander, The Art and Science of Academic Support, 45 J. LEGAL EDUC. 157, 202 (1995); see also Li Cao & John L. Nietfeld,
College Students' Metacognitive Awareness of Difficulties in Learning Class Content
Does Not Automatically Lead to Adjustment of Study Strategies, 7 AUSTL. J. EDUC. &
DEV. PSYCHOL. 31, 32-33 (2007).
70. Cao & Nietfeld, supra note 69, at 32-33.
71. R. Denise Myers, College Success Programs,PATHWAYS TO C. NETWORK, http://
www.pathwaystocollege.netlpdf/CollegeSuccessPrograms.pdf (last visited Aug. 12,
2011).
72. Mary C. Levin & Joel R. Levin, A Critical Examination of Academic Retention
Programsfor At-Risk Minority College Students, 32 J. C. STUDENT DEV. 323, 327 (1991);
see also Paul T. Wangerin, Law School Academic Support Programs,40 HASTINGS L.J.
771, 773-74 (1989) (reasoning that undergraduate programs "have been at least somewhat effective"). Kulik's study found that the effect of undergraduate academic support
programs "ranged in magnitude from high positive to moderate negative in the total
pool of studies." Kulik et al., supra note 68, at 401-03. It found a number of factors were
"significantly related to GPA" and concluded "GPA effects were higher for newer programs, for programs that did not involve remedial or developmental studies, [and] when
the GPAs came from the first year of college." Id.
73. See Knaplund & Sander, supra note 69, at 203.
2012]
THE PEDAGOGY OF PROBLEM SOLVING
2. Law School Studies
a. UCLA Program
Studies of law school ASPs have similarly pointed to the importance of linking academic support to doctrinal course material. 74 In
their landmark work in the field of academic support, Kristine
Knaplund and Richard Sander studied the effectiveness of various academic support initiatives at UCLA School of Law, including a summer program, a first-spring course, tutoring, exam workshops, review
sessions, a probation course, and faculty-led study groups. 7 5 Of these
initiatives, the one found to have the greatest effect on students' longterm academic performance was the first-spring course. 76 This course
was a three-credit course offered to first-year students in their spring
semester. In the course, instructors taught the students various
learning skills using examples from the material the students were
covering in their doctrinal courses. 77 Although Knaplund and Sander
were not able to isolate all the variables that distinguished the firstspring course from their other initiatives, the authors reasoned that
the course's success could be traced to the fact that it taught "specific
74. Much of the evaluation of law school academic support programs did not include sophisticated, empirical analysis of the programs. Such analysis is difficult for
several reasons, including most notably the difficulty in finding a valid control group.
See Schmidt & Iijima, supra note 66, at 654-66 (identifying several reasons why law
schools have not empirically evaluated their programs). For instance, at Regent, se-
lected students are required to participate in the ASP based on "their LSAT score, undergraduate GPA, or other factors, such as their undergraduate major or the time since
they have been enrolled in an academic program." See Academic Success Program,REGENT U. ScH. L., http://www.regent.edu/acad/schlaw/academics/academicsuccess/ASPabout.cfm (last visited Aug. 31, 2011). No valid control group of students is available
because no students with similar academic indicators are not in the ASP.
75. Knaplund & Sander, supra note 69, at 172. For an earlier empirical analysis of
a law school academic support program, see Charles L. Finke, Affirmative Action in Law
School Academic Support Programs, 39 J. LEGAL EDUC. 55 (1989). In his study, Finke
analyzed the success of a first-year academic support program at the University of Oregon School of Law by comparing the participants' actual first-year performance with the
performance as would have been predicted based on their LSAT scores. He found that
three classes of ASP students appeared to have achieved average class ranks from nine
to twenty-nine places higher than predicted. Id. at 66. He also compared the academic
performance of students in the program with the performance of students who attended
the school before the program was started. Id. at 69. Paul T. Wangerin has specifically
criticized Finke's methodology. He reasoned that the first comparison was too dependent on LSAT scores and undergraduate GPAs, which are only partially predictive of
academic success, and that the second comparison did not properly account for changes
in the admissions policies. Paul T. Wangerin, A Little Assistance Regarding Academic
Assistance Programs:An Introduction to Academic Assistance Programs, 21 J. CONTEMP. L. 169, 175 n.11 (1995).
76. Knaplund & Sander, supra note 69, at 172-73.
77. Id. at 225 app. B, 226 n.2.
718
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[Vol. 45
skills in a concrete and familiar substantive context."7 8 They specifically emphasized the fact that the skills were taught in the context of
courses the students were taking at that time. 79 They also highlighted that the two features of all the UCLA programs that had longterm academic effects were programs that focused on learning methods, like techniques for how to prepare for examinations, and that integrated such discussions into the substantive course work.8 0
Knaplund and Sander compared these results with their analysis
of the summer component of UCLA's academic support program.
Their summer program was held for two weeks almost immediately
before the fall semester began. 8 ' All diversity students were invited
to participate in the program, and then of those who applied, selection
was based on the weakness of an applicant's academic indicators, including an admissions amalgam of LSAT and grades and other factors
82
indicating that the student was likely to benefit from the program.
The students attended ten two-hour lectures, led by nine UCLA
faculty members. After two introductory lectures on the legal system,
the lectures addressed cases with a common subject matter. Students
participated in the discussions and, over the course of the two weeks,
completed eight writing assignments (ranging from 200 to 400 words)
that built upon the themes from the previous day's lectures. Faculty
83
members evaluated the papers and provided same-day feedback.
Students furthermore attended three or four workshops on how to
take exams, and they completed three exams, one under timed conditions.8 4 Finally, students attended sessions that addressed nonacademic aspects of law school, and they attended social activities in
order to familiarize themselves with each other and with the law
school experience.8 5
Knaplund and Sander found that, despite the "wide array of interlocking, well-supported, and carefully conceived purposes" of the pro78. Id. at 174. Knaplund and Sander opined that the small class size also contributed to the class success, both because it enhanced class rapport and because it allowed
the instructor to give immediate, detailed, individualized feedback. Id. at app. B at 234.
79. Id. at 202-03.
80. Id. Knaplund and Sander stress that, along with class size, linking instruction
with contemporaneous doctrinal courses is a critical component for success and contrast
their conclusion with the theories of academic support expert Paul Wangerin, who did
not stress the doctrinal link in his suggestions for academic support programs. See id.
at 205. Moreover, they emphasize that, contrary to suggestions from the Law School
Admission Council, sensitive and interactive teaching is not enough to lead to a successful academic support program. See id. at 205-06.
81. Id. at 179-80.
82. Id. at 180 & n.57.
83. Id. at 180, 184 (describing how the assignments "tend to be more like problemsolving exercises than like full-fledged memos or briefs").
84. Id. at 180.
85. Id. at 181.
2012]
THE PEDAGOGY OF PROBLEM SOLVING
86
gram, it had only a modest and temporary impact on student grades.
Specifically, they found that participation in the summer program
moderately improved students' first-semester grades, by an average of
one point in their GPA.8 7 During the second semester, however, these
gains were largely lost as students in the program lost ground relative
88
The impact on the
to their classmates who were not in the program.
89
inconclusive.
second and third years was
In comparing these results with those of the first-spring course,
Knaplund and Sander observe that while both programs had moderate short-term effects, the effects of the summer program disappeared
90
over time while the effects of the first-spring course grew. They contend that one of the important differences between the two courses is
that the summer program "creates its own world of substantive law"
because each day the students had a different lecturer who addressed
different areas of law around a common subject matter, like topics related to family law and the relationship between spouses. 9 1 Although
the authors recognize that this variety gives students exposure to different teaching styles and aspects of the law school curriculum, they
conclude that the approach is "too abstract" to have a lasting impact
on grades. 9 2 Moreover, in contrast to the first-spring course, the summer program instructors spent less time on explicit analysis of the
93
learning process.
86. Id. The authors did note, however, that the program had a positive impact on
retention in that students who participated in the program were less likely to drop out
of school voluntarily. They also highlighted that, in qualitative surveys about the program, students were uniformly positive. See id. at 197-98; E-mail from Kristine S.
Knaplund, Professor of Law, Pepperdine Univ. Sch. of Law, to author (May 11, 2007,
17:57 EST) (on file with author).
87. Knaplund & Sander, supra note 69, at 182.
88. Id.
89. Id. The authors stated that the coefficients for that timeframe were not statistically significant and thus the results were unclear as to whether the program did not
affect students' GPA or did so by an increase of 0.51. Id. at 182 & n.63.
90. Id. at 182.
91. Id. at 183. In describing the broad doctrinal nature of the course, Knaplund
and Sander report:
Students read early contracts cases which struck down premarital agreements
as promoting divorce, and torts cases which eliminated California's doctrine of
interspousal immunity. They also read two evidence cases which discuss application of a rule in a family law fact pattern, and a statute on marital property.
At the same time, the students are exposed to a succession of skills: first how to
read and brief a case, then how to read a series of cases, how to distinguish
cases, and how to read a statute. The final class uses Marvin v. Marvin, 557
P.2d 106 (Cal. 1976), the California "palimony" decision, to discuss the role of
policy.
Id. at 180 n.58.
92. Id. at 183.
93. Id. They added that such explicit instruction may be difficult before law school
has begun because students do not have a set of examples they can employ to augment
the class discussions. Id.
720
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[Vol. 45
From these results, Knaplund and Sander reinforce their conclusion: "[Alcademic support is not effective in empowering students academically when its lessons are taught in isolation from courses to
which students can immediately transfer and apply what they have
learned." 9 4 They add that instruction in learning methods should be
explicit and that repeated practice in applying these methods, with
95
feedback on these practice exercises, is important.
These authors' conclusions underscore the benefits of contextualization but highlight that problem solving transfer can be achieved
through a stand-alone course if such instruction is done well. UCLA's
first-spring course was in many ways a "detached" environment in
that instructors taught the problem solving skills in a separate course
that focused on skill development and covered skills relevant to several legal doctrinal contexts. 9 6 In the most successful of the three iterations of that course, moreover, the instructor "spen[t] as much time
97
as possible explicitly explaining the learning process to students."
That iteration of the course, however, was fundamentally "embedded"
in that the instructor used concrete illustrations from material the
students were covering at the time in their doctrinal classes and created incentives for the students to do well on practice questions by
allowing them to opt-out of the follow-up class on the questions if they
made above a certain score. 9 8
UCLA thus adopted an embedded instructional model that educational psychologists have later advocated in the design of successful
problem solving programs. 9 9 Specifically, problem solving expert
Richard C. Mayer contends that problem solving instruction should
include four basic features: (1) "Focus on a few well-defined skills"; (2)
"Contextualize the skills within authentic tasks"; (3) "Personalize the
skills through social interaction and language-based discussion of the
process of problem solving"; and (4) "Accelerate the skills so that students learn them along with lower-level skills."10 0 Legal educators
must consider each of these features as they seek to teach legal problem solving skills.
94. Id.
95. Id. at 207.
96. See id. at 178-79.
97. Id. at 179.
98. Id. at 177-78 (reasoning "teaching students the concept in a familiar (or even
pressing) substantive setting decisively helps them to learn it").
99. See MAYER, supra note 38, at 454.
100. Id.
2012]
b.
THE PEDAGOGY OF PROBLEM SOLVING
Pace Law School Program
In 2004 Leslie Yalof Garfield and Kelly Koenig Levi published a
comprehensive study analyzing the effect of Pace University School of
Law's ASP on students who participated in the program between 1997
and 2001.101 The authors evaluated the effectiveness of three components of their ASP: "(1) the Individual Skills Development ('ISD'); (2)
the First Year Skills Workshop Series ('Workshop Series'); and (3) the
Dean's Scholar Program." 10 2 In the ISD, students met one-on-one
with an ASP instructor at the school. During these meetings, the instructor provided instruction to enhance the student's study and preparation skills; and for students beyond the first semester, the
instructor also assigned students practice essay questions to complete
and then reviewed those questions with the students. 10 3 In the Workshop Series, ASP professionals conducted workshops open to all firstyear students during the first semester. These workshops addressed a
series of skills including case reading and briefing, note-taking, course
outlining, exam preparation, and exam-taking. 10 4 The workshops
were voluntary and were not for credit.' 0 5 In the Dean's Scholar Program, upper-level students served as teaching assistants. These
scholars conducted weekly study groups and held a weekly office hour
for each of the first-year doctrinal courses. In their meetings, scholars
sought to hone students' substantive knowledge and analytical skills
10 6
by focusing on course outlining and exam writing.
Garfield and Levi found that each of the three components led to
statistically significant academic benefits to those students who participated. First, the students as a whole who participated in the ISD
significantly improved their GPA during their semester of participation and the semester thereafter. 10 7 Second, the students as a whole
who participated in the Workshop Series had a significantly higher
first-semester and cumulative GPA than non-participants.' 0 8 Third,
101. Garfield & Levi, supra note 15, at 16.
102. Id. at 11.
103. Id. at 12-13. During the first semester, students met "regularly and sometimes
less frequently"; during later semesters, students tended to meet weekly with the instructor. Id.
104. Id. at 13.
105. Id.
106. See id. at 13-14.
107. Id. at 20-23. The authors also discussed the effect of the ISD on student retention and first-time bar passage; the results showed a positive effect but were not statistically significant. Id. at 23-24.
108. Id. at 24-25. The authors also discussed how students participating in the
Workshop Series had a 100% retention rate versus a 91.6% rate overall. Id. at 25.
These results regarding the Workshop Series are suspect, however, because the comparison between participants and non-participants does not appear to be controlled for
other predictors of law school academic success, like LSAT score. Id. at 24 n.87.
CREIGHTON LAW REVIEW
[Vol. 45
for three of the five years, students as a whole who participated in the
Dean's Scholar Program outperformed non-participants with comparable LSAT scores. 10 9 Overall, the authors found that students benefited the most from the ISD, followed by the Workshop Series, and
then the Dean's Scholar program. 110 The authors therefore concluded
that students benefit the most from ASP services that provide the
highest level of interaction with an ASP instructor. 1 1 '
Unlike Knaplund and Sander, Garfield and Levi did not discuss
the extent to which ASP services need to be contextualized in order to
promote academic success. Garfield and Levi did stress, however, that
the various services in their program have an "emphasis on skills development." 1 2 They add that the Dean's Scholars and ASP instructors did not "tutor" students in the doctrinal areas of law, and they
noted that the doctrinal materials used in the Workshop Series included Criminal Law materials that were not part of the first-year
Criminal Law curriculum. 113 This programmatic emphasis on skills,
however, does not detract from the fact that, as described in their
study, Pace's services remained contextualized in doctrinal knowledge
relevant to the students receiving the services. For instance, in the
ISD and the Dean's Scholar program, the instructors taught students
principles of outlining and how to answer hypothetical essay questions
in the context of the material those students were actually covering in
those classes. 1 14 Thus, although the instructors were emphasizing
skills and not doctrine, they were using examples and exercises that
related directly to the students' relevant domain knowledge. In this
way, the ISD and Dean's Scholar program related to the first-spring
course offered at UCLA.
The contextualization of the Workshop Series was less direct because instructors in the series used examples that did not directly relate to what the students were studying in their Criminal Law
course. 1 15 It cannot be said, however, that the skills being taught
were completely un-contextualized from the domain knowledge the
students were developing. During the years the Workshop Series was
109. See id. at 27-28. The authors attributed the lack of positive effect in two of the
five years to the fact that in those years "the administration of the program was not
unified, and there was little coordination between the Dean's Scholar sessions and the
academic support professional." Id. at 28. The authors also noted that the students
who participated in this component had a higher retention rate than those with comparable LSAT scores who did not. Id. at 29-30. The program did not have an effect on
first-time bar passage. See id. at 30.
110. Id. at 37.
111. Id.
112. Id. at 14.
113. Id. at 14-15.
114. See id. at 12-14.
115. See id. at 14-15.
20121
THE PEDAGOGY OF PROBLEM SOLVING
studied, Pace students received instruction in Criminal Law during
their first year. 1 16 Therefore, although the precise doctrinal concepts
were not the same as those the students were studying in their Criminal Law course, they undeniably related to them. As noted above, the
educational research demonstrates that cognitive transfer depends on
the degree to which the transfer task and target task share cognitive
and symbolic elements and analogical similarities' 17 and the degree
to which instructors encourage students to reflect on how the knowledge might be transferred. 118 The concepts in the workshops shared
such elements with the concepts in the doctrinal classes, and the ASP
instructors explicitly encouraged students to think about such transfer. The necessary contextualization therefore took place to promote
transfer. 119
c.
William Mitchell Program
In the most statistically robust study of a law school ASP, Cynthia
Schmidt and Ann L. Iijima at William Mitchell School of Law began in
2003 an evaluation of the school's ASP, called "Compass." The school
instituted the program in the fall of 2000, and the program targeted
students considered at-risk because of certain indicators of their potential academic performance. 120 To be admitted, these students
116. During the time of the study, Pace did not have a stand-alone first-year course
in Criminal Law; it combined instruction in Criminal Law with its first-year course in
legal analysis and writing. See e-mail from Horace E. Anderson, Jr., Assoc. Dean for
Academic Affairs, Pace University School of Law, to author (June 5, 2012, 11:42 EST)
(on file with author). For a description of the combined course, see Detailed Course
Information, PACE U., https://bannerss.pace.edu/prod/bwckctlg.p-disp-course-detail?
cat_termin=200920&subjcodein=LAW&crsenumbin=622A (last visited June 5,
2012).
117. See SINGLEY & ANDERSON, supra note 53, at 3, 248; Gick & Holyoak, supra note
54, at 1.
118. Anderson et al., supra note 46, at 7.
119. It is noteworthy, however, that the positive effect of the Workshop Series was
not as great as the ISD. See Garfield & Levi, supra note 15, at 37. One reason may be
that the contextualization was not as keen in the Workshop Series as the ISD.
120. Schmidt & Iijima, supra note 66, at 657 & n.33. Applicants were selected for
Compass based on their "admissions index." Id. To determine an applicant's index, the
school first considered the applicant's "predicted first year average" ("PFYA") based on
the algorithm the Law School Admission Council ("LSAC") uses which gives specific
weight to the applicant's LSAT scores and undergraduate GPA. The school then used
each applicant's PFYA, together with other predictors of academic ability, for instance
whether grades increased or decreased during the undergraduate years and the
strength of the LSAT writing sample, to obtain the applicant's "academic score." The
school also gave each applicant a "non-academic" score, considering factors such as motivation, extra-curricular activities, work experience, and whether the applicant overcame disadvantages. It combined the academic and non-academic scores to determine
the applicant's admissions index. Id. at 656 n.32. In 2007, the school changed the name
of the Compass courses to Legal Reasoning Workshop I and I and amended other attributes of the program, such as the number students who are accepted to participate.
CREIGHTON LAW REVIEW
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agreed to participate in Compass and dropped one of the doctrinal
classes they normally would have taken during their first year. The
program met weekly for one hour each week. Using material covered
in Torts, "the students learn[ed] to read and brief cases, synthesize
rules, develop outlines, and take essay exams. The students work[ed]
both individually and in small groups, [and] complete[d] weekly written assignments." 12 1 Compass professors graded these weekly assignments and provided one-on-one coaching two or three times to their
12 2
students during the semester.
The authors evaluated the success of Compass by analyzing the
1 23
first-year average GPA ("FYA") of the program participants.
Twenty-eight students participated in the program in 2000, the year
that was analyzed because it was able to be matched properly with a
control group from students who matriculated in 1999.124 Data from
twenty-two of these students was included in the study. 12 5 The authors first found that thirteen of the twenty-two Compass students
126
earned FYAs that were higher than their predicted FYA ("PFYA").
The authors next found that Compass students earned FYAs that
were significantly higher than those in the control group; specifically,
Compass students earned an average FYA of 2.41 whereas the control
group earned an average FYA of 2.2.127 The authors were not able to
assess the effectiveness of the program after the first year because of
the methodological problems with comparing Compass and non-Compass students' GPAs after the first year and their academic probation
and dismissal rates.128
In reflecting on their results and offering suggestions for law
school ASPs, Schmidt and lijima argued that academic support programs "should focus on honing students' analytical skills rather than
on tutoring them on legal doctrine." 12 9 Moreover, they contended that
such programs should work in conjunction with students' doctrinal
See e-mail from Sally Zusman, Dir. of the Academic Achievement Program, William
Mitchell Coll. of Law, to author (June 6, 2012, 15:32 EST) (on file with author).
121. Id. at 657.
122. Id. at 657.
123. Id. at 660.
124. Id. at 658-59, 672.
125. See id. at 663, 668-69 (discussing why certain students were excluded and the
issues involved in finding a proper control for the study). For instance, the authors
excluded certain students because they had law degrees or law school credits from other
countries. Id. at 666.
126. Id. at 669. Recall that the school computed PFYA based on the LSAC algorithm. See supra note 120 and accompanying text.
127. Id. at 669-70 & n.82. This difference was present even after factoring in the
effect that PFYA has on FYA, which was necessary because the control group had
higher PFYAs than the Compass students. See id. at 672.
128. See id. at 672 & n.88.
129. Id. at 675.
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THE PEDAGOGY OF PROBLEM SOLVING
classes and should ground the "teaching of the skills in material the
130
students are already covering" in their classes.
In sum, these authors' recommendations support Knaplund and
Sander's findings that stress a hybrid approach where problem solving
skills are separately emphasized but are directly tied to a doctrinal
course context that is relevant to the students' other coursework at
the time. They also follow the general recommendations of the educational and cognitive psychologists, which allow for a hybrid approach
where concrete illustrations are enabled to be authentic because they
are tied to specific domains in which the students are otherwise being
instructed. 13 1 Specifically, these illustrations are effective because
they relate to tasks the students are expected to perform later in their
doctrinal classes.1 32 Finally, these recommendations supplement the
conclusions from Garfield and Levi in recommending that ASPs
should emphasize skills development and not just focus on doctrinal
review.
d.
University of Richmond Program
In addition to these above studies of law school ASPs, Linda Jellum and Emmeline Paulette Reeves conducted a comprehensive study
of the bar support program at the University of Richmond School of
Law. 133 Although their study focused on Richmond's services to help
students pass the bar examination and not the school's services to
help them succeed in law school, the study nevertheless relates to the
question of the importance of contextualization of learning. State bar
examinations assess both doctrinal knowledge and skills like writing
and analytical thinking. 13 4 Therefore, the degree to which the teaching of those skills is contextualized would presumably relate to the
success of the program. In fact, Richmond's program is highly contextualized. The program not only covers essay-writing and test-taking
skills that are relevant to the bar examination; it also offers classes
that provide substantive review of certain bar subjects and individual
130. Id. at 675-76.
131. See, e.g., MAYER, supra note 38, at 425.
132. Id. at 408.
133. Linda Jellum & Emmeline Paulette Reeves, Cool Data on a Hot Issue: Empirical Evidence that a Law School Bar Support Program Enhances Bar Performance, 5
NEV. L.J. 646 (2005).
134. See Gantt, supra note 5, at 433-36 (surveying information from state boards of
bar examiners which shows that bar examinations test such skills as whether applicants can discern which facts are relevant and whether they can write an answer that is
well-reasoned and logically organized).
726
CREIGHTON LAW REVIEW
[Vol. 45
"tutoring" in which the instructor "teach[es] substantive rules of
35
law."1
Based on data from students taking the July 2001 to July 2004
bar examinations, the authors concluded that the bar support program resulted in a statistically significant improvement in the firsttime bar passage rates of Richmond's graduates. 13 6 They further
found that the program had the greatest effect on those students graduating in the bottom half of their class. 137 Given the program's intentional mixture of doctrinal tutoring and skill development, it is
impossible to isolate whether the improvement was linked more to one
factor or the other. 138 The combination of the two, however, certainly
led to robust results, thus supporting the general proposition that skill
development is most enhanced when taught in a contextualized
manner.
e.
Results from Other Schools
13 9
Given the difficulty of conducting statistically robust studies,
other law schools have conducted less comprehensive studies, but
135. Jellum & Reeves, supra note 133, at 661-63. The program also teaches time
management skills. Id. at 682.
136. Id. at 671-72. The authors specifically compared the test-takers during that
period with the test-takers who sat for the exam at some point from July 1997 through
February 2001. In comparing these two groups, the authors found that the passage rate
increased 6.2 percentage points or 8.5%. Id. at 669, 672. The authors conducted statistical analyses to rule out that the increase was the result of (1) increased selectivity in
admissions criteria; (2) increased academic performance of students overall during the
test period; or (3) decrease in the difficulty of the bar exam. Id. at 673-77.
137. See id. at 671. This comparison did not control for any motivational differences
that may have been present between the participants and non-participants because instituting such controls would have randomly excluded some students from participating. See e-mail from Emmeline Paulette Reeves, Assoc. Professor for Academic Success,
Univ. of Richmond Sch. of Law, to author (May 15, 2007, 13:24 EST) (on file with author). The authors found that the participation in the program did not statistically improve the first-time passage rate of those who were in the top half of their graduating
class. See Jellum & Reeves, supra note 133, at 679-80. These results contrast with the
results from the Pace study, which found that students at all different class ranks benefited equally from ASP participation. See Garfield & Levi, supra note 15, at 36. This
difference may be due, in part, to the fact that, as Jellum and Reeves suggest, many of
the students in the top half of Richmond's class would have passed the bar exam in any
event. See Jellum & Reeves, supra note 133, at 679. These students thus have essentially no room for improvement in terms of passage rate. In contrast, even students in
the top half of the class could improve their GPAs; those students are not all near or at a
4.0.
138. In fact, neither factor may have been as important as the emotional benefit
students who participated in the program received. Jellum and Reeves discussed how
students in the program receive tips on stress management and other issues in order to
build the students' confidence. Id. at 665.
139. See Schmidt & Iijima, supra note 66, at 654-55. For instance, Adam Todd
wrote a comprehensive article discussing the changes to the ASP at Northern Kentucky
University's Salmon P. Chase College of Law. He reported that after implementing the
20121
THE PEDAGOGY OF PROBLEM SOLVING
727
these studies similarly point to the benefits of integrating problem
solving instruction into a doctrinal course context. For instance,
Michael Hunter Schwartz conducted a study at Western State College
of Law in which he compared two types of ASP instruction. One section of students received academic support instruction that was integrated into several of their doctrinal courses, and one section received
the law school's regular academic support instruction. 140 Schwartz
found that the students who received the integrated academic support
attained first-year GPAs that were twenty percent higher than their
colleagues in the other section. 14 1 In another study at St. Thomas
University School of Law, Rory Bahadur analyzed the impact of the
school's "active learning methodologies," similar to the problem solving instructional techniques described above, on first-time bar passage. 142 Prior to the commencement of the program, the school's firsttime passage rate on the Florida bar exam was fifty-two percent and
thirty-three percent the last time and next to the last time it had been
given. 14 3 The first group of students to be introduced to this academic
support methodology attained a first-time passage rate of seventy-four
percent. 1 44 Bahadur reported that no other "identifiable or tangible
institutional changes" occurred for the recent group except for the
changes in the new academic support model. 145 Finally, other law
schools report success with their academic support program efforts
that have been integrated within a doctrinal course context. 14 6 The
changes, the school's bar passage rate "improved dramatically." Adam G. Todd, Academic Support Programs:Effective Support Through a Systemic Approach, 38 GONZ. L.
REV. 187, 189 (2003). The relationship between the ASP and the rate increase, however, cannot be determined because the school also instituted other changes at the same
time, including tightening its academic probation and dismissal policy and increasing
the number of required courses. Id. at 212.
140. E-mail from Michael Hunter Schwartz, Assoc. Dean for Faculty & Academic
Dev., Washburn Univ. Sch. of Law, to author (Apr. 20, 2007, 18:06 EST) (on file with
author).
141. Id. To control for bias, the same Criminal Law professor taught both sections
and graded the essays blindly and the same Civil Procedure multiple-choice final was
given to both sections. Id. Also, the other professors for the two sections were carefully
selected to control for bias. See e-mail from Michael Hunter Schwartz, Assoc. Dean for
Faculty & Academic Dev., Washburn Univ. Sch. of Law, to Herbert N. Rainy, Dir. &
Professor of Academic Support, Suffolk University Law School (Apr. 25, 2007, 11:44
EST) (on file with author).
142. Posting of Rory Bahadur, [email protected], to [email protected].
edu (Apr. 16, 2007, 11:37 EST) (on file with author).
143. Id.
144. Id.
145. Id.
146. For instance, Regent's Summer Academic Success Program and Academic Orientation adopted a new integrated approach in 2002. See supra note 34 and accompanying text. Student feedback in the program evaluations over this ten-year period has
been overwhelmingly positive. In fact, these programs have become increasingly integrated over the years, as discussion of the doctrinal material in the skills component
CREIGHTON LAW REVIEW
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benefit of these efforts has led new schools to consider adopting ASP
components that are tied expressly to doctrinal courses the students
47
are taking at the time.1
3.
General CurricularRecommendations
The above discussion highlights how educational programs that
tie instruction in domain knowledge with instruction in problem solving skills are the most successful in promoting meaningful learning.
In the law school context, the ASP studies discussed above provide the
most comprehensive evidence supporting this benefit, but anecdotal
evidence from non-ASP doctrinal classes similarly support the bene148
fits of tying problem solving instruction into doctrinal coursework.
Even when such connection is present in instructional design,
however, legal instructors must ensure that they explicitly discuss
with their students how to make those connections between analytical
has expanded due to students' being highly interested in seeing how the specific study
skills at issue relate to the material covered in the doctrinal component. Also, since
1987, Seattle University School of Law has conducted for incoming students a summer
course that combines Criminal Law with academic support classes. See SEATTLE UNIv.
SCH. OF LAw, ACCESS ADMISSION PROGRAM AND ACADEMIC RESOURCE CENTER
(2009),
available at http://www.law.seattleu.edu/Documents/academicresourcecenter/2010ARCFlyer.pdf. Paula Lustbader reports that the program has been "very successful." E-mail
from Paula Lustbader, Professor of Law & Dir. of the Academic Res. Ctr. at Seattle
Univ. Sch. of Law, to author (Apr. 21, 2007 13:11 EST) (on file with author).
147. For instance, in the fall of 2006, I introduced a new component to Regent University School of Law's ASP which relates to the skill of problem solving. Two of my
colleagues, Eric DeGroffand Kathleen McKee, and I developed a workshop titled "Problem Solving for Exam Success." In the workshop, we distributed to the students an
analytical framework for a particular area of Property law. The students then divided
into small groups of three, and we asked them to work through two hypothetical fact
patterns that required them to apply the framework to solve the implicated issues. We
then discussed the problems in the large group. Student feedback on the workshop has
been positive, and I believe the workshop has underscored to them the importance of
problem solving to academic success in law school. See L.O. Natt Gantt, II, Seeing the
Forestand Solving Legal Problems, LEARNING CuRvE (Ass'n of Am. Law Sch. Section on
Academic Support), Fall 2006, at 13, 15, available at http://www.law.umkc.edulfaculty/
profiles/glesnerfines/asp/Fall2006LearningCurve.pdf; see e-mail from Herbert N. Rainy,
Dir. & Professor of Academic Support, Suffolk Univ. Law Sch., to author (Apr. 25, 2007
11:44 EST) (on file with author) (discussing integrated programs at various schools).
148. In addition to his ASP studies, Michael Hunter Schwartz reports that direct
integration of active learning, problem solving methodologies in the Contracts class he
teaches has increased his students' performance. He specifically employs "multiple opportunities for practice and feedback, free writing, think-pair-share, practice MBE
questions integrated into [his] PowerPoint slides, active student engagement in [his]
course webpage, use of graphic organizers, use of Classroom Assessment Techniques,
etc." E-mail from Michael Hunter Schwartz to Herbert N. Ramy, supra note 141. As of
2007, Schwartz had taught Contracts for 16 years; in comparing his student performance from the eight years before he instituted these new teaching methods to the eight
years after, he found that student performance on multiple-choice exam questions improved 10% and student performance on essay exam questions improved 23% to 35%
(based on the year). Id.
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THE PEDAGOGY OF PROBLEM SOLVING
729
skills and doctrinal understanding. For instance, in considering this
issue of learning transfer, legal scholar Susan Bennett has contended
that in legal education "transferability depends on the care which the
teacher takes in making the learning lessons explicit across the
14 9
boundaries of discrete experiences."
Legal educators thus must consider the extent to which they
make these connections explicit. Emphasizing such connections does
not mean that instructors must create a passive learning environment
in which the students are not challenged in the classroom. Rather,
instructors must take care not to assume that students necessarily see
those connections; students often fail to see the forest for the trees. 150
Law school teachers need to create a rich, active learning environment
for their students, who may disengage either because the instructor is
merely transmitting information to them or because the instructor is
leaving such holes in the instruction that the students are lost in making the connections. Instructors can bridge this gap by discussing
with their students explicit step-by-step problem-solving or decisionmaking frameworks and then challenging the students to develop and
apply these frameworks.
Recent works on law school teaching have emphasized instruction
in problem solving and have identified specific practices to help educators make their teaching properly contextualized.1 5 1 Legal instructors will undoubtedly vary their techniques as they search for
techniques that complement their personal styles, but research discussed above overwhelmingly encourages legal educators to pursue
that search. Contextualization is key, and law schools must continue
to find new ways to coordinate the discussion of doctrinal knowledge
with the discussion of procedural knowledge as it relates to the formation of problem solving skills.
III.
THE ROLE OF DOMAIN KNOWLEDGE
In addition to the issue of the contextualization of problem solving, legal educators must confront a question of sequence. That is,
although the above discussion highlights that students must receive
149. Bennett, supra note 40, at 65.
150. See Gantt, supra note 147, at 13-15.
151. See STUCKEY ET AL., supra note 2, at 141-57 (including a section on methods for
employing "context-based" education); LEARNING CURVE (Ass'n of Am. Law Sch. Section
on Academic Support), Fall 2009, available at http://www.aals.org/documents/sections/
academicsupport/LearningCurve2009l2Fall.pdf (presenting thematic issue including
several articles discussing models for integrating academic support instruction, including problem solving instruction, into doctrinal course contexts); see also Tonya Kowalski, True North: Navigating for the Transfer of Learning in Legal Education, 34
SEATTLE U. L. REV. 51 (2010) (discussing an approach legal educators can use throughout the curriculum to enhance students' transfer of learning).
CREIGHTON LAW REVIEW
[Vol. 45
instruction both in doctrine and in problem solving, legal educators
must consider the extent to which students need a foundation in that
doctrinal subject matter, or domain knowledge, before they are explicitly instructed in problem solving skills. This section first analyzes
studies in educational and cognitive psychology that have considered
the relationship between domain knowledge and the development of
expertise. 1 52 The section then considers the implications of these
studies on pedagogy in the law school context.
A.
EXPERTISE AND DOMAIN KNOWLEDGE
Domain knowledge is the firm foundation for doctrinal knowledge. 153 Domain knowledge is specifically defined as the "explicit
knowledge of the concepts, principles, and structures of thinking
about the particular domain in which the problem arises."154 This
type of knowledge is contrasted with "procedural" knowledge, which is
knowledge "about how to do things.' 5 5 This distinction between domain and procedural knowledge has been described as the distinction
between "knowing that" and "knowing how."1 5 6 Procedural knowledge often is acquired through experience and becomes "tacit" knowledge when the knower cannot fully express this knowledge
verbally. 15 7 In cognitive science studies, the concept of an expert "refers to an individual who surpasses competency in a domain .... A
domain expert ... possesses an extensive, accessible knowledge base
that is organized for use in practice and is tuned to the particular
problems at hand." 158 Research on expertise analyzes how novices
152. See, e.g., Jennifer Wiley, Expertiseas Mental Set: The Effects of Domain Knowledge in Creative Problem Solving, 26 MEMORY & COGNITION 716, 716-18 (1998) (reviewing studies in fields ranging from chess to baseball expertise).
153. See supra note 36 and accompanying text.
154. Krieger, supra note 36, at 153 (citing Vimla L. Patel, Josd F. Arocha & David R.
Kaufman, Expertise and Tacit Knowledge in Medicine, in TACIT KNOWLEDGE IN PROFES-
SIONAL PRACTICE 75, 77-78 (Robert H. Sternberg & Joseph A. Horvath eds., 1999)). Educational and cognitive psychologists also refer to this type of knowledge as "declarative
knowledge." See Schraw, supra note 30, at 247 (defining declarative knowledge as "a
broad category that includes facts, concepts, and the relationships between concepts
that lead to an integrated understanding of a domain of knowledge").
155. Schraw, supra note 30, at 248; see also Dennis J. Devine & Steve W.J. Kozlowski, Domain-SpecificKnowledge and Task Characteristicsin Decision Making, 64 ORGANIZATIONAL
BEHAV. & HUM. DECISION PROCESSES
294, 294 (1995) (distinguishing
between "declarative" and "procedural" knowledge).
156. Patel, Arocha & Kaufman, supra note 154, at 78.
157. Krieger, supra note 36, at 153; see also Joseph A. Horvath, Tacit Knowledge in
the Professions, Preface to TACIT KNOWLEDGE IN PROFESSIONAL PRACTICE, supra note
154, at ix, ix.
158. Patel, Arocha & Kaufman, supra note 154, at 79.
2012]
THE PEDAGOGY OF PROBLEM SOLVING
and experts solve hypothetical problems, 159 and how individuals with
160
different levels of expertise perform in practical settings.
This research concludes that a person must adequately understand the domain knowledge in an area to be an expert or creative
problem solver in that area. 16 1 Having this well-integrated domain
knowledge is necessary to effective problem solving of both "wellstructured" problems (like geometric proofs) and "ill-structured"
problems (like most legal problems, which possess multiple solutions).1 6 2 Scholars reason that experts who have a good grasp of the
subject matter exhibit a "baseline tolerance for ambiguity" as well as a
"willingness to confront irregularities" and a "learned instinct for finding 'complementarity' or congruence among seemingly isolated
facts." 1 63 In applying this research to the law school context, Stefan
Krieger contends that "in ordinary professional situations, a practitioner needs to acquire sufficient knowledge in a field to know how to
frame the question, evaluate information, generate options, and exe164
cute a plan effectively."
159. See, e.g., Douglas A. Hershey et al., The Effects of Expertise on FinancialProblem Solving: Evidence for Goal-Directed, Problem-Solving Scripts, 46 ORGANIZATIONAL
BEHAV. & HUM. DECISION PROCESSES 77 (1990) (examining how subjects with differing
experience in financial planning determined whether a couple should open an Individual Retirement Account).
160. See, e.g., David R. Kaufman & Vimla L. Patel, The Nature of Expertise in the
Clinical Interview: Interactive Medical Problem Solving, in PROCEEDINGS OF THE TENTH
ANNUAL CONFERENCE OF THE COGNITIVE SCIENCE SOCIETY 461 (1988) (studying how phy-
sicians and medical students at varying levels of training diagnosed volunteer patients).
161. See Krieger, supra note 36, at 165-66; Patel, Arocha & Kaufman, supra note
154, at 76 ("[W~e argue for the importance of domain knowledge in the acquisition of
medical expertise."); Robert W. Weisberg, Problem Solving & Creativity, in THE NATURE
OF CREATIVITY: CONTEMPORARY PSYCHOLOGICAL PERSPECTIVES 155 (Robert J. Sternberg
ed., 1988) ("[R]esearch indicates that rather than being independent of past experience,
truly efficient problem solving comes about only when an individual has acquired a deep
knowledge of the domain in question."); Wiley, supra note 152, at 716 ("The possession
of a large body of domain knowledge is central to expertise.").
162. Namsoo Shin et al., Predictorsof Well-Structured and Ill-Structured Problem
Solving in an Astronomy Simulation, 40 J. RES. ScI. TEACHING 6, 7-8, 26 (2003). For
domain knowledge to be "well-integrated," individuals have organized their knowledge
in way that helps them solve problems. See Ching-Huei Chen & Amy C. Bradshaw, The
Effect of Web-Based Question Prompts on Scaffolding Knowledge Integration in IllStructuredProblem Solving, 39 J. RES. ON TECH. EDUC. 359, 361-62 (2007). Other relevant critical components to solving ill-structured problems are the ability to justify proposed solutions and facility in metacognitive processes, like planning and selfmonitoring. Shin et al., supra, at 9, 27-28.
163. Bennett, supra note 40, at 61-62 (quoting Patricia Kennedy Arlin, Wisdom: The
Art of Problem Finding,in WISDOM: ITS NATURE, ORIGINS, AND DEVELOPMENT 230, 235-
36 (Robert J. Sternberg ed., 1990)); see also REEVES, supra note 27, at 111 (describing
various tools learners use to acquire a grasp of the domain while integrating loads of
incoming information).
164. Krieger, supra note 36, at 166.
CREIGHTON LAW REVIEW
[Vol. 45
Finding that domain knowledge is important to problem solving
does not explain how such knowledge enhances problem solving. To
that end, cognitive psychological research has also analyzed how experts employ the domain knowledge in problem solving. Such studies
have underscored that simply increasing an individual's domain
knowledge does not result in a perfectly correlated enhancement in his
or her problem solving. Problem solving is not solely determined by
the amount of one's knowledge. 16 5 Expert problem solving is neither
simply applying powerful search algorithms to an extensive knowledge base nor merely accessing patterns of recognition drawn from domain knowledge and past experience. 166 In sum, researchers in this
area have concluded that "it is not the amount of domain knowledge
amassed, the ability to apply problem solving methods to that knowledge, or the capacity to discover patterns similar to that knowledge
that is crucial to expert problem solving. Rather, it is the way that
16 7
domain knowledge is organized."
Educational and cognitive psychologists recognize generally that
all individuals organize domain knowledge based on "schema."'16 Expert problem solvers, however, have well-developed schemata, which
16 9
they internalize and then access according to particular problems.
Researchers conclude that these schemata organize experts' knowledge so they can quickly and efficiently access their memory and find
potential solutions to problems. 170 According to studies on expertise,
165. See Devine & Kozlowski, supra note 155, at 295.
166. See TERESA M. AMABILE, CREATIVITY IN CONTEXT 87 (1996); Devine & Kozlowski, supra note 155, at 295; Peter A. Frensch & Robert J. Sternberg, Expertise and Intelligent Thinking: When Is It Worse to Know Better?, in 5 ADVANCES IN THE PSYCHOLOGY
OF HUMAN INTELLIGENCE 161 (Robert J. Sternberg ed., 1989); Vimla L. Patel & Guy J.
Groen, The General & Specific Nature of Medical Expertise:A CriticalLook, in TOWARD
A GENERAL THEORY OF EXPERTISE 115 (K. Anders Ericsson & Jacqui Smith eds., 1991).
167. Krieger, supra note 36, at 167.
168. Educational psychologist Gregory Schraw calls schema "one of the most important organizational units of memory" and defines the term as "an organized body of
information about some distinct domain of knowledge." Schraw, supra note 30, at 248.
169. Hershey et al., supra note 159, at 80; Paula Lustbader, Construction Sites,
Building Types, and Bridging Gaps: A Cognitive Theory of LearningProgressionof Law
Students, 33 WILLAMETTE L. REV. 315, 326-27 (1997); Vimla L. Patel et al., Conceptual
Change in the Biomedical and Health Sciences Domain, in 5 ADVANCES IN INSTRUCTIONAL PSYCHOLOGY 335 (Robert Glaser ed., 2000).
170. See Hershey et al., supra note 159, at 80; Lustbader, supra note 169, at 326-27;
Wiley, supra note 152, at 716-17. Experts' use of schemata has a downside, however.
Specifically, experts are vulnerable to "fixation effects," in which they commit decisionmaking error when they simplify a problem by problematically fitting new variables
into their existing schema. See Krieger, supra note 36, at 175-76 (quoting Frensch &
Sternberg, supra note 166, at 176). Similarly, experts' use of schemata also can hinder
their ability to remember all the information about a problem. Because they immediately discern relevant versus irrelevant information, they are less likely than intermediates (those between novices and experts) to recall the exact information in a
problem. Krieger, supra note 36, at 175-76 (citing Wiley, supra note 152, at 716-17).
2012]
THE PEDAGOGY OF PROBLEM SOLVING
experts confronting a new problem devote a substantial amount of
time analyzing the structure of the problem in order to match the
problem with known "scripts."17 Scripts are "extended action sequences" or "solution paths," which individuals use to solve
problems. 172 Everyone has thousands of scripts; the difference is that
expert problem solvers have well-developed scripts that help them
73
solve complex problems in their domain of expertise1
In solving problems, experts' use of domain knowledge is critical.
First, they use the knowledge to help them disregard irrelevant information in the problem and guide their search for additional relevant
information.' 7 4 Second, although they develop schemata from both
their domain knowledge and past experience, the domain knowledge
75
provides an important organizing framework for that development. 1
For instance, increased domain knowledge gives the problem solvers
176
important contextual information that enhances problem solving.
171. See, e.g., Frensch & Sternberg, supranote 166, at 161. Cognitive psychologists
also theorize expert problem-solving is incremental in that experts first recognize similarities between a given problem and their stored knowledge about past situations and
then, when a proposed solution is determined to be insufficient, recast the problem, seek
to retrieve additional information, and attempt to find other solutions. See, e.g., Arthur
J. Cropley, Creativity and Cognition: ProducingEffective Novelty, 21 ROEPER REV. 253,
258 (1999); Patel & Groen, supra note 166, at 93; Weisberg, supra note 161, at 152.
172. Frensch & Sternberg, supra note 166, at 161; Schraw, supra note 30, at 249.
Scripts and schemata are analogous. Whereas individuals use schemata to organize
domain knowledge, they use scripts to organize procedural knowledge. Schraw, supra
note 30, at 249.
173. See Schraw, supra note 30, at 249-50 (discussing how scripts, for instance, enable doctors to perform complicated operations).
174. Krieger, supra note 36, at 168 & n.82 (citing Vimla Patel et al., Reasoning and
Instruction in Medical Curricula, 10 COGNITION & INSTRUCTION 335 (1993)) (highlighting parenthetically a study of medical students that found that intermediate students
used more information to solve a problem than experts because the experts seemingly
were able to filter out irrelevant information whereas the "use of irrelevant information
by intermediates appear[ed] to be a sign that knowledge is becoming reorganized").
175. See Krieger, supra note 36, at 169 (citing, Patel et al., supra note 169, at 335)
("Domain knowledge provides the mechanization for understanding and identifying
problem structure"). Cognitive psychologists add that domain knowledge becomes
"tacit" knowledge as the problem solver develops the scripts and schemata for handling
different types of problems. Patel, Arocha & Kaufman, supra note 154, at 76-77.
176. Krieger, supra note 36, at 170 (citing Devine & Kozlowski, supra note 155, at
296). One study in the legal field supports this reasoning. Specifically, the study found
that experienced lawyers solved legal problems more ably than law students even when
both groups were provided with the same legal materials and fact problem. See Ian
Weinstein, Lawyering in the State of Nature: Instinct and Automaticity in Legal Problem Solving, 23 VT. L. REV. 1, 37-38 (1998). Scholars concluded that this difference was
because the experienced lawyers had more informed contextual knowledge that gave
them a larger context for interpreting the law and facts in the particular problem. Krieger, supra note 36, at 171; Weinstein, supra, at 37-38. This research supports the general proposition that effective learners first seek to understand the context of a problem
before focusing on its details. See RUTH ANN MCKINNEY, READING LIKE A LAWYER: TIME
SAVING STRATEGIES FOR READING LAW
LIKE
AN EXPERT 105 (2005).
CREIGHTON LAW REVIEW
[Vol. 45
Such knowledge also facilitates collaborative problem solving by giving solvers a language they can use to communicate with their colleagues. 17 7 Furthermore, such knowledge promotes creative problem
solving because it gives expert solvers the framework needed both to
178
consider new ideas and still to move towards the solution.
In terms of the decision-making process itself, sophisticated schemata enable experts to engage in "forward reasoning," in which a
problem solver "draw[s] inferences from available data . . . and sequentially mov[es] toward the solution of a problem without having to
explicitly test and evaluate hypotheses."1 79 For instance, studies
show that, unlike medical residents, senior physicians interviewing a
patient use their schemata to filter out irrelevant information and
reach a potential diagnosis relatively quickly and then seek more information to confirm that diagnosis.' 8 0 This decision-making process
contrasts with "backward reasoning," which is more often used by novices and occurs when the solver "identifies goals and then formulates
different hypotheses to relate the goals to the known information,
working 'back' from the goals to find a relationship that fits the known
information."' 81 Cognitive research has shown that forward reasoning is more highly correlated with accurate problem solving than is
backward reasoning. 18 2 This higher correlation likely stems from the
fact that backward reasoning is slower and puts heavier demands on
18 3
the solver's working memory.
177. Krieger, supra note 36, at 172 (citing Carrie Menkel Meadow, Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education, 6 HARv.
NEGOT. L. REV. 97, 141 (2001)).
178. Krieger, supra note 36, at 173-75 (citing MIHALY CSIKSZENTMIHALYI, CREATIVITY: FLOW AND THE PSYCHOLOGY OF DISCOVERY AND INVENTION 90 (1996)) ("You cannot
transform a domain unless you first thoroughly understand how it works."). This notion
is a more sophisticated version of the adage I use with my students: "You can't run
before you can walk."
179. Patel, Arocha & Kaufman, supra note 154, at 82. When experts face novel or
particularly difficult problems, however, they may not be able to rely on existing schemata. They therefore must engage in backward reasoning and will use their domain
knowledge as "reference points" as they test hypotheses. Krieger, supra note 36, at 17273 (citing, inter alia, Vimla Patel & David R. Kaufman, ClinicalReasoning & Biomedical Knowledge: Implications for Teaching, in CLINICAL REASONING IN THE HEALTH PRO-
FESSIONS 121 (Joy Higgs & Mark Jones eds., 1995)).
180. See Krieger, supra note 36, at 177-78 (citing David F. Kaufman & Vimla L.
Patel, The Nature of Expertise in the Clinical Interview: Interactive Medical Problem
Solving, in PROCEEDINGS OF THE TENTH ANNUAL CONFERENCE OF THE COGNITIVE SCIENCE SOCIETY 461, 532 (1988); Vimla L. Patel & Guy J. Groen, Developmental Accounts
of the Transition from Medical Student to Doctor: Some Problems and Suggestions, 25
MED. EDUC. 527, 530 (1991)).
181. Weinstein, supra note 176, at 27; cf Bennett, supra note 40, at 54-55 (contrasting novice and expert problem solving).
182. See Krieger, supra note 36, at 169-70 (discussing study involving problem solvers in the medical field).
183. See Patel & Groen, supra note 166, at 94.
2012]
THE PEDAGOGY OF PROBLEM SOLVING
In sum, studies from cognitive psychology show that domain-specific knowledge enhances problem solving by: (1) enabling individuals
to develop powerful schemata and scripts that help them solve
problems; (2) leading individuals to engage in efficient forms of forward reasoning that expedite the problem solving process; and (3) propromote
viding individuals with language structures 8 that
4
collaborative problem solving and creative solutions.'
B.
PEDAGOGICAL IMPLICATIONS
1.
Medical School Research on Instructional Sequence
In light of these aspects of expert problem solving and the role of
domain knowledge in such development, legal instructors must ask
how they can best integrate domain knowledge and procedural knowledge in the law school classroom. Section II of this Article stresses the
idea that the two must be integrated. 185 Insightful research on how
they should be integrated has been conducted in the field of medical
education.
That research, conducted by Vimla Patel and her colleagues at
McGill University's Centre for Medical Education, compared the reasoning processes and diagnostic accuracy of medical students and
graduates from two different medical schools. The two institutions
studied employed different pedagogical approaches. One school used a
conventional curriculum, in which students spent one and one-half
years learning basic science before they were exposed to problem solving in the clinical context. The students learned this material in separate disciplined based courses. Instructors used illustrative clinical
primary mode of instruction was
problems in these courses, but 8the
6
the traditional lecture method.'
The other school utilized a "problem-based learning" curriculum,
in which students learned basic science in the context of clinical
problems. In this program, students were introduced to patients during their first term and were "presented with a series of health care
problems requiring their solution, the understanding of underlying
physical, biological and behavioural principles, the appropriate collection of data and the critical appraisal of evidence."18 7 Students addressed the scientific principles and the clinical concepts in a setting
184. See Krieger, supra note 36, at 177.
185. See supra notes 38-151 and accompanying text.
186. Krieger, supra note 36, at 178 (surveying the Patel research); see also Patel et
al., supra note 169, at 331.
187. Krieger, supra note 36, at 178 & n. 153 (quoting Education Methods, MCMASTER
U., http://fhs.mcmaster.ca/mdprog/education-methods.html (last visited June 5, 2012)).
CREIGHTON LAW REVIEW
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that did not clearly differentiate between the two.' 8 8 Moreover, this
institution focused on small-group and self-directed learning methods
as opposed to the lecture and supervised teaching formats at the con89
ventional institution.'
In their research, Patel and her colleagues found that students
and graduates educated in the conventional curriculum evidenced a
greater tendency to employ forward reasoning in their problem solving
and to provide higher quality explanations for their diagnoses than
those educated in the problem-based curriculum. 190 The conventionally educated students also mastered the basic scientific principles
better than their counterparts. 19 1 The researchers hypothesized that
the conventional curriculum was more successful in these regards because it provided its students with a well-organized knowledge base
through which to organize their clinical problems. 19 2 These students,
in contrast to those in the problem-based curriculum, acquired the
needed expert scripts and therefore could engage in effective forward
reasoning. 19 3 Patel and her colleagues further reasoned that the
problem-based curriculum was less effective because it conflated the
different reasoning skills that are involved in understanding scientific
194
processes and making clinical diagnoses.
Patel and her colleagues did observe that the conventionally educated students evidenced the downside of forward reasoning that occurs when scripts hinder the problem solvers' ability to see and correct
errors in their thought process. In such cases, they prematurely stop
195
their reasoning process and fail to consider alternative hypotheses.
Students educated in a problem solving context were better able to
amend their hypotheses and learn from experience to correct their
mistakes. 19 6 The researchers therefore opine that conventionally educated students should be better educated by increasing their instruc-
188. See Patel et al., supra note 169, at 341.
189. Vimla Patel, Guy J. Groen & Geoffrey R. Norman, Effects of Conventional and
Problem-BasedMedical Curriculaon Problem Solving, 66 ACAD. MED. 380, 380 (1991).
190. Mark Neal Aaronson & Stefan H. Krieger, Teaching Problem-Solving Lawyering: An Exchange of Ideas, 11 CLINICAL L. REV. 485, 494 (2005).
191. Krieger, supra note 36, at 182-83.
192. Patel et al., supra note 169, at 342.
193. Id.
194. See Patel et al., supra note 174, at 375 ("[C]linical knowledge is based on a
complex taxonomy that relates disease symptoms to underlying pathology. In contrast,
the biomedical sciences are based on general principles defining chains of causal
mechanisms.").
195. See Krieger, supra note 36, at 183-84.
196. See Patel et al., supra note 169, at 352.
20121
THE PEDAGOGY OF PROBLEM SOLVING
tion in explicit techniques they can use in diagnostic problem
197
solving.
An additional insight the researchers gleaned from their studies
relates to the principle in cognitive psychology of cognitive load. Cognitive psychologists have learned that the amount of information the
nervous system can process at any one time is limited. 198 Cognitive
load theory considers these limits and addresses how different cognitive resources are utilized during the learning process. 199 In particular, the theory advances that some instructional methods place too
many cognitive demands on students and therefore actually impede
20 0
learning.
Patel and her researchers drew upon such theory to posit that the
medical students taught under problem-based instruction experienced
cognitive load and therefore were not able to grasp the scientific
knowledge base as well as the students taught under the conventional
curriculum. 20 1 In reaching this conclusion, they pointed to other research showing that some instruction methods that focus on teaching
problem solving skills problematically divert attention from other important aspects of the problem that are essential to learning. 20 2 This
conclusion emphasizes the principle, noted above, that problem solving knowledge and knowledge of core scientific concepts involve two
different modes of cognition. 20 3 Students who therefore are expected
to learn both knowledge structures at the same time may have their
attentive resources strained to the point that they may not be able to
master either well. 20 4 This conclusion also reflects the reasoning,
noted above, of cognitive and educational psychologists who remain
197. Jos6 F. Arocha & Vimla L. Patel, Novice Diagnostic Reasoning in Medicine:
Accounting for Evidence, 4 J. LEARNING Sci. 355, 380 (1995).
198. See MIHALY CSIKSZENTMIHALYI, FLOW: THE PSYCHOLOGY OF OPTIMAL EXPERIENCE 28 (1990).
199. See Paul Chandler & John Sweller, Cognitive Load and the Format of Instruction, 8 COGNITION & INSTRUCTION 294, 295 (1991); see also Hillary Burgess, Deepening
the Disclosure Using the Legal Mind's Eye: Lessons from Neuroscience and Psychology
that Optimize Law School Learning, 29 QuImNPiAC L. REV. 1, 40-43 (2011) (discussing
the application of cognitive load theory to law student learning).
200. Burgess, supra note 199, at 40. The principle of cognitive load appears more
and more relevant as modern society exposes individuals generally to more and more
information. See World's Data More Than Doubling Every Two Years-Driving Big
Data Opportunity, New IT Roles, EMC CORP. (June 28, 2011), http://www.emc.comI
about/news/press/2011i20110628-01.htm [hereinafter World's Data] (discussing a June
2011 study sponsored by EMC and conducted by the research firm, IDC, which found
that the world's digital information "is more than doubling every two years-with a
colossal 1.8 zettabytes to be created and replicated in 2011").
201. Patel et al., supra note 169, at 342.
202. See Krieger, supra note 36, at 184-85 (discussing problem solving studies).
203. See supra notes 154-57 and accompanying text.
204. Patel et al., Conceptual Change, supra note 169, at 335.
CREIGHTON LAW REVIEW
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concerned that embedded problem solving instruction may "disrupt
20 5
processing" of doctrinal material.
2. Implications for Legal Instruction
a.
Content of Domain Knowledge
Stefan Krieger, Professor at Hofstra University School of Law,
has drawn upon this medical school research to consider how legal
instruction can best teach students. Krieger first opines that this research supports the notion that legal instruction must include a doctrinal base to educate its students properly. Beginning with
instruction in problem solving skills is not enough: "A person must
learn how to think inside the box before venturing to think outside of
it."
20 6
Krieger's position makes sense. Indeed, in engaging in legal problem solving, individuals must early in the process engage in a sophisticated process of determining relevance. 20 7 Some scholars who have
analyzed relevance have started from the position that the lawyer
knows the legal rules at issue and thus is focused on discerning relevant facts based on those rules. 20 8 Lawyers who have such a domain
knowledge base are more likely to have well-developed schemata they
can employ in assessing relevance and solving legal problems. 20 9 Legal educators should therefore engage in problem solving applications
only after they have adequately introduced the domain knowledge at
issue to students. This position relates particularly to orientation and
academic support programs ("ASPs") and to detached skills-based
courses, like the first-year legal writing course. Based on the psychological research, instructors in these areas should consider crafting assignments that are tied to students' doctrinal courses so that students
are likely to have the domain knowledge needed in order for them to
get the most out of the explicit problem solving instruction. Specifically regarding orientation programs, instructors should provide instruction in the relevant legal doctrine-even if only very briefbefore they address problem solving skills, like exam-taking, tied to
2 10
that area.
205. Derry & Murphy, supra note 41, at 31; see also supra note 44 and accompanying text.
206. Krieger, supra note 36, at 186; see also STUCKEY ET AL., supra note 2, at 74
(quoting Krieger to affirm the position that law students must have sufficient knowledge of legal doctrine before they can begin legal problem solving).
207. Gantt, supra note 5, at 445-48.
208. See, e.g., STEVEN J. BURTON, AN INTRODUCTION TO LAW AND LEGAL REASONING
98 (3d ed. 2007).
209. Krieger, supra note 36, at 189.
210. For instance, during Regent's orientation program, students have two classes
in Property law, taught by one of the Property professors, before they are asked to out-
2012]
THE PEDAGOGY OF PROBLEM SOLVING
Moreover, based on the research noted above, such a knowledge
base helps decision-makers in other ways. First, it creates a common
language they can use to discuss the problem with both colleagues and
adversaries. 2 1 1 Because legal language necessitates precision, legal
decision-makers need a refined knowledge base to ensure they are
speaking the same language. Second, this knowledge base helps decision-makers facing novel situations develop new research strategies or
revise their arguments so as to narrow or expand the law. 2 12 In contrast, lawyers who do not know the relevant rules that apply to a situation must employ heuristics or other problem solving techniques
that, while helpful for efficiency's sake, may lead to problematic decision-making errors. 2 13 Legal educators thus must be intentional
about instructing students in the "language of the law" as it relates to
the doctrinal material at issue so that the students can develop the
mental schemata that facilitate their discourse with others. Orientation programs similarly should expose students at least to foundational legal terms and highlight the need for students to take seriously
the importance of understanding the precise meaning of the legal
2 14
terms they encounter.
Given that domain knowledge is critical to expert problem solving, the question arises what domain knowledge is essential to legal
problem solving. The question cannot be answered absolutely for all
line and discuss exam-taking strategies on that material. See Gantt, supra note 34, at
8; cf. Paula Lustbader, You Are Not in Kansas Anymore: Orientation Programs Can
Help Students Fly Over the Rainbow, 47 WASHBURN L.J. 327, 344-49 (2008) (advocating
that effective orientation programs should provide incoming students with a doctrinal
context" for any study skills exercises that are discussed during the program).
211. See Krieger, supra note 36, at 189; see also supra note 177 and accompanying
text.
212. See Krieger, supra note 36, at 189.
213. For instance, legal thinkers may employ the "representative heuristic," in
which thinkers are asked to judge whether "an object or event A belongs to class or
process B." See Amos Tverksy & Daniel Kahneman, Judgment Under Uncertainty:
Heuristics and Biases, in JUDGMENT AND DECISION MAKING: AN INTERDISCIPLINARY
READER 38, 55 (Terry Connolly, Hal R. Arkes & Kenneth R. Hammond eds., 1986).
This heuristic is akin to analogical reasoning ... and is subject to similar pitfalls of such reasoning in that thinkers overlook the fact that similarities between items are significant depending on the relevance, quantity, and quality
of those similarities. Empirical research on this heuristic confirms that individuals rely on the similarities they perceive between A and B regardless of
information they have learned on the prior probability of outcomes, on sample
size, or on other important criteria.
Gantt, supra note 5, at 452-53.
214. For instance, in Regent's Summer Academic Success Program and orientation
program, the instructors always pick out at least one legal term in the cases the students are reading (such as "writ of certiorari") and call on a student to define the term.
This exercise underscores to the students the importance of knowing the precise meanings of the terms they encounter in their reading. See Gantt, supra note 5, at 455 n.201
(discussing an apple exercise conducted during these programs in which students are
confronted with how terms like "red" are not as obvious in meaning as one might think).
CREIGHTON LAW REVIEW
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legal contexts because law is becoming increasingly complex and the
combinations of caselaw, statutes, regulations, and the like that may
be implicated by legal problems are as numerous as the number of
problems themselves. Despite this limitation, certain tenets of domain knowledge may be so broadly applicable that they could be considered as essential domain knowledge for all new lawyers. Indeed, in
his comprehensive work on domain knowledge in the legal context,
Krieger reasons that "principles of legal reasoning" are properly con2 15
sidered basic domain knowledge for lawyers.
In an earlier article, I identified key cognitive components of what
it means to think like a lawyer. 2 16 Although the article did not frame
these components in terms of principles of domain knowledge, the
components can be recast in such a way. Those components might
then be supplemented with additional, foundational principles. 2 17 In
this vein, Best Practices for Legal Education discusses foundational
principles of knowledge that all law school graduates should possess. 218 These principles include domain knowledge principles like
"the law of contract and tort and of parties' obligations, rights, and
219
remedies."
The work, however, also includes other concepts that relate to
principles that would not traditionally be seen as legal domain knowledge. 220 Indeed, recent literature on legal problem solving would add
that the basic domain knowledge needed for effective lawyering includes more than legal doctrine and legal reasoning principles. 22 1 In
general, these scholars contend that legal education concentrates too
heavily on rule-based problem solving in the adversarial context and
therefore overlooks the "emotional and relational components of the
lawyering process" and overall stifles creative problem solving, ignoring the "human context of legal cases." 22 2 For instance, one theorist
215. Krieger, supra note 36, at 155. Although Krieger makes this observation, he
does not attempt defining what specific principles are key because such an inquiry was
beyond the scope of his article.
216. See generally Gantt, supra note 5, at 436-78; see also supra note 29 and accompanying text.
217. Identifying all the types of domain knowledge that are foundational to legal
thinking was beyond the scope of the previous article because that article focused on
particular cognitive processes in legal thinking and not on legal reasoning principles per
se.
218. STUCKEY ET AL., supra note 2, at 65-91.
219. Id. at 73 (discussing other core doctrinal principles related to "knowledge" and
'understanding" of the law).
220. See id. at 72 (reasoning that graduates should demonstrate self-efficacy).
221. See Morton, supra note 27, at 384. "Myshort-term goal in teaching a creative
problem solving component in my classes is to engage the students in thinking
processes in addition to that of legal analysis . . . ." Id. (emphasis added).
222. Krieger, supra note 36, at 158-62 (surveying research on legal problem solving).
Thomas D. Barton has considered this issue extensively and has written that "[tihe
2012]
THE PEDAGOGY OF PROBLEM SOLVING
contends that basic skills essential to effective lawyering include "relational reasoning." 22 3 The necessity of such skills is debatable, but
recent efforts to define the extent of domain knowledge all law school
graduates should have is critical in light of the importance of having
the right knowledge base as a precursor to mastering problem solving.
Therefore, if law schools desire to graduate students with skills in
"practical judgment" and "relational reasoning," they must ensure
they are educating students with the domain knowledge needed to ac224
quire those skills.
b.
Brainstorming
Many legal educators recommend that teaching legal problem
solving should involve the use of brainstorming and similar tech2 25
niques in order to foster students' creativity as they solve problems.
Specifically, these educators encourage students to resist the impulse
to prejudge how to solve the problem based on the first thought that
comes to them. 2 2 6 Instead, they recommend that students suspend
judgment when they face a problem and develop alternative hypotheses through "reverse thinking, random stimulation, developing origi2 27
nal analogies, and brainstorming."
common law tends to approach human problems with a flattened vision of humanity" in
which "problems have been defined exclusively by the procedures contemplated to solve
the problem." Thomas D. Barton, CreativeProblem Solving: Purpose,Meaning and Values, 34 CAL. W. L. REV. 273, 283, 293 (1998); see also Laurie Morin & Louise Howells,
The Reflective Judgment Project, 9 CLINICAL L. REV. 623, 628 (2003) ("The creative problem solving model recognizes that human problems rarely require only a legal solution,
and that not all legal problems should result in a lawsuit and adversarial positioning.").
Barton has also asserted that problem solving in legal education often overlooks the
political and social context of people's problems. Barton, supra, at 285.
223. See Kerper, supra note 26, at 353, 355.
224. See STUCKEY ET AL., supra note 2, at 67-70 (recommending that all law school
graduates should "demonstrate practical judgment").
225.
See, e.g., ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 25-27
(1996); Michael McDonnell, Playing Beyond the Rules: A Realistic and Rhetoric-Based
Approach to Researching the Law and Solving Legal Problems, 67 UMKC L. REV. 285,
308-10 (1998); Menkel-Meadow, supra note 177, at 135-36 (recommending instructors
in conventional courses "teach alternative ways of structuring and solving legal
problems" and "push students to look for multiple possibilities and directions that [a]
case could have taken"); O'Leary, supra note 27, at 65, 94-95; Janet Weinstein & Linda
Morton, Stuck in a Rut: The Role of Creative Thinking in Problem Solving and Legal
Education, 9 CLINICAL L. REV. 835, 872-76 (2003). These recommendations follow the
general tenets of social problem solving theory which hold that 'brainstorming as many
potential solutions to a problem as possible will maximize the likelihood that the optimal solution will surface." E. Lea Johnston, RepresentationalCompetence: Defining the
Limits of the Right to Self-Representation at Trial, 86 NOTRE DAME L. REV. 523, 557
(2011).
226. See, e.g., HAYDOCK ET AL., supra note 225, at 26.
227. McDonnell, supra note 225, at 309.
CREIGHTON LAW REVIEW
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Based on the cognitive psychology research discussed above, Stefan Krieger opines that such recommendations are questionable. He
writes:
Although no one can dispute the virtues of teaching students
to develop creative, alternative solutions to legal problems,
the cognitive psychology studies raise serious questions
whether encouraging students to engage in brainstorming
and similar techniques achieves that goal. Obviously, because most students are hampered by their limited knowledge of the law and inexperience, their ability to engage in
extensive brainstorming in a simulation or clinical course is
very limited and can be very time-consuming. But more importantly, the studies suggest that teaching students to use
routinely hypothetico-deductive problem-solving techniques
efficient and effective methods of
trains them in the 2less
28
backward reasoning.
From this position, Krieger reasons that law schools should spend
less time encouraging students to brainstorm all the possible hypotheses when they face a problem and more time instructing students on
how to analyze problems such that their "first thoughts" about a problem prove to be accurate assessments of that problem. 22 9 He adds
that the cognitive psychology studies show that students are more
likely to develop accurate "first thoughts" through instruction in relevant doctrinal knowledge than in problem solving methods and that
inadequate doctrinal instruction paired with problem solving instruction may actually impede skills acquisition due to excessive cognitive
23 0
load.
Research on law school academic support programs supports
Krieger's recommendation. In considering the benefits of ASP summer programs, Knaplund and Sander reason that even if summer programs try to anticipate doctrines to be discussed during the first year,
"it seems unlikely that students can simultaneously acclimate themselves to the case method, learn substantive law, and diagnose any
weaknesses in their own approach that prevent them from learning as
much as they can." 23 1 These remarks reflect the principle of cognitive
228. Krieger, supra note 36, at 191.
229. Id. at 192 ("While in some difficult or out-of-the ordinary cases, exacting deductive reasoning, involving full-fledged hypotheses generation and evaluation may be required, the use of such an approach on a routine basis can be highly inefficient and
ineffective.").
230. Id. at 192 ("Understanding the problem may be more important than developing alternative hypotheses for solving it.").
231. Knaplund & Sander, supra note 69, at 178, 206 (adding that "the secret, it
seems, is to have students really understand a learning concept before asking them to
transfer it to other subjects; and teaching students the concept in a familiar (or even
pressing) substantive setting decisively helps them to learn it").
20121
THE PEDAGOGY OF PROBLEM SOLVING
load. 232 Krieger, Knaplund, and Sander, however, overlook the fact
2 33
that cognitive load can be avoided by limiting the skills in focus.
Therefore, if legal instructors are not able to provide students with a
sufficient foundation in domain knowledge in order to instruct students in multiple skills, they should focus
on a few well-defined skills
2 34
in their problem solving instruction.
c. Script Development
The above discussion highlights how legal education should concentrate on script development as a framework for any brainstorming
necessary in creative problem solving. Research in the medical context provides insight into teaching script development. From their research, Patel and her associates contend that instructors seeking to
help students develop such scripts "need[I to be able to articulate
knowledge . . . that would normally be tacit for a practitioner not en-
gaged in instruction."23 5 They recommend that instructors need to
help demystify expert reasoning by making each step in that reasoning process explicit. 23 6 Similarly, instructors need to teach students
how to articulate the explicit steps in their reasoning process so that
23 7
the students can craft problem solving scripts.
From this research, Krieger opines that legal instructors need to
help students use their domain knowledge to structure problem solving frameworks. 238 He specifically suggests that law school skills
training courses should focus on problem solving in areas, such as
first-year foundational subjects, in which students have knowledge of
both the relevant substantive and procedural rules. 23 9 He adds that
232. See supra notes 198-205 and accompanying text.
233. See MAYER, supra note 38, at 425.
234. See id.
235. Patel et al., supra note 154, at 89.
236. Id.
237. Id. (contending that "[e]xperienced physicians have evolved specific heuristics
that can be conveyed to medical trainees through effective clinical teaching").
238. Krieger, supra note 36, at 200. Krieger reasons, "Legal rules and doctrine are
not just a 'tool' in the lawyer's toolbox; they provide the overall framework for the compartments in the box." Id. (footnote omitted) (citing Kerper, supra note 26, at 355).
239. Id. at 201. Krieger adds that such script development would be hindered in
areas of law that involve complex statutory or administrative structures or multiple
structures or forums. Id. The UCLA School of Law provides an example of a course
that teaches problem solving after the students are thoroughly educated in the doctrinal
course context. Course Description:Law 446: Clinical: Venture Capital Formationand
Financing, U. CAL. L.A. SCH. L., http://www.law.ucla.edu/academic-programs-andcourses/curriculum/course-descriptions/Pageslaw-446-clinical-venture-capital-formation-and-financing.aspx (last visited Aug. 12, 2011) (describing simulation course in
which students gain "the analytical tools needed for evaluating the form of entity appropriate for the start-up company" after completing courses in Federal Income Taxation
and Business Associations).
CREIGHTON LAW REVIEW
[Vol. 45
students' need for a knowledge base may not be alleviated simply by
"giving the students the applicable law," either by providing them
with the relevant sections of the law or by teaching students the relevant law in an intensive lecture that does not allow students time to
reflect on the information being presented. 240 Indeed, evidence from
law school courses related to problem solving supports the position
that students need more than brief instruction or a brief review of material in order to engage in complex problem solving on that
24 1
material.
Krieger also reasons that students' inadequate knowledge base
can stifle their creative problem solving because they experience increased anxiety and an absence of the psychological "flow experience"
that occurs when individuals feel they have the skills needed to complete the task before them. 2 42 Studies have shown that many law students already undergo psychological distress that impedes their
academic success in law school and that this distress begins in their
first year. 24 3 Instructors thus can work to alleviate some of this anxi240. Krieger, supra note 36, at 202. Krieger reasons:
Such an approach probably can provide students with an adequate foundation
for the performance of particular skills (for example, witness examination in a
trial advocacy course) or for routine case tasks (for example, filing papers). But
it is unlikely that this approach can effectively teach legal problem-solving
skills. The development of problem-solving schemata requires a more extensive knowledge base than that provided by a few pages of relevant statutory or
case materials or a mini-course front loaded at the beginning of a clinical
course.
Id. But see Morin & Howells, supra note 222, at 674-75 (reasoning that law students
need a knowledge base to develop problem solving schemata but can acquire such a base
with readings relevant to the legal context).
241. From 2001 to 2006, Regent colleagues and I taught to graduating students a
course titled "Advanced Legal Reasoning, Analysis & Writing." In the course, my coinstructors and I presented students with a written summary of the law in a discrete
area and then assigned them a hypothetical essay question based on that law. See L.O.
Natt Gantt, II, Regent Offers Course on Advanced Legal Reasoning, LEARNING CURVE
(Ass'n of Am. Law Sch. Section on Academic Support), Spring 2002, at 3, available at
http://www.law.umkc.edu/faculty/profiles/glesnerfines/asp/Learningcurvespring202.
pdf. The course was designed to hone students' analytical and writing skills, but instructors sometimes found that, although the summary contained all the law needed to
answer the question, students had difficultly answering the question because they had
not grasped the relevant law from the summary. The issue for these students was
therefore not necessarily inadequate procedural knowledge in problem solving but inadequate doctrinal knowledge in the area of law at issue.
242. Krieger, supra note 36, at 203-04 (citing CsIKszENTMIHALYI, supra note 198, at
49, 97).
243. Lustbader, supra note 210, at 352 n. 147 (citing Michael E. Carney, Narcissistic
Concerns in the EducationalExperience of Law Students, 18 J. PSYCHIATRY & L. 9, 9
(1990); Thomas A. Dye, Law School's Contribution to Civility and Character,L. PRAc.
MGMT., Oct. 1996, at 40, 42; B.A. Glesner, Fearand Loathing in the Law Schools, 23
CoNN.L. REV. 627, 631 (1991); Peter Kutulakis, Stress and Competence:From Law Student to Professional, 21 CAP. U. L. REV. 835, 836 (1992); Cathaleen A. Roach, A River
Runs Through It: Tapping into the Informational Stream to Move Students from Isola-
20121
THE PEDAGOGY OF PROBLEM SOLVING
ety as related to knowledge acquisition by focusing on instruction in
domain knowledge as a way to foster a conducive problem solving environment. 2 4" Instructors leading first-year orientation programs and
first-semester courses particularly might consider spending more time
providing students with a domain context before asking them to en24 5
gage in problem solving on the material at issue.
Despite this importance of students' script development, teaching
such development is not as easy as might be imagined. Research has
shown that instructors sometimes suffer from the "expert blind spot
effect," in which experts view solving problems from their perspective
rather than from the perspective of the novice students. 24 6 This effect
may lead educators with expertise in the subject matter "to use the
powerful organizing principles, formalisms, and methods of analysis
that serve as the foundation of that discipline as guiding principles for
their students' conceptual development and instruction, rather than
being guided by knowledge of the learning needs and developmental
profiles of novices." 24 7 This effect relates to the fact that much of the
knowledge that pertains to script development is deemed "tacit"
knowledge, which, as noted above, is knowledge grounded in experience that helps individuals solve problems but is often difficult to articulate. 24 8 Indeed, cognitive psychologists examining legal problem
solving have recognized that such tacit knowledge influences much of
tion to Autonomy, 36 ARIZ. L. REV. 667, 667 (1994); James B. Taylor, Law School Stress
and the "DformationProfessionelle,"27 J. LEGAL EDUC. 251, 251 (1975)); Kennon M.
Sheldon & Lawrence S. Krieger, Understandingthe Negative Effects of Legal Education
on Law Students: A Longitudinal Test of Self-Determination Theory, 33 PERSONALITY &
SOC. PSYCHOL. BULL. 883, 884 (2007); see also Vinita Bali, Helping Students Recognize
and Survive Fear in Law School, LEARNING CURVE (Ass'n of Am. Law Sch. Section on
Academic Support), Spring 2006, at 5, 6, available at http://law2.umkc.edu/faculty/
profiles/glesnerfines/asp/Spring2006LearningCurve.pdf (contrasting good fear and bad
fear and reasoning that law school promotes bad fear in first-year students because "[iun
law school the longevity of the fear, loss of control, and uncertainty are generally protracted over an entire semester").
244. See Krieger, supra note 36, at 204-05. Psychological studies on flow indicate
that creative problem solving is enhanced when the environment allows for easy access
to the specific domain. CSIKSZENTMIHALYI, supra note 178, at 127-45.
245. This position is not to say that law schools should not, even from the first day of
orientation, challenge students to think analytically and in a manner that develops
their problem solving skills; rather, law schools should reflect on whether students have
an adequate domain knowledge base to engage in the problem solving exercises at issue
and consider beginning with exercises that draw upon students' general knowledge or
upon legal principles that are easily accessible. See supra note 214 and accompanying
text (discussing the apple exercise used during Regent orientation).
246. Mitchell J. Nathan & Anthony Petrosino, Expert Blind Spot Among Preservice
Teachers, 40 AM. EDUC. REs. J. 905, 906 (2003).
247. Id.
248. See Nancy S. Nestor-Baker & Wayne K. Hoy, Tacit Knowledge of School Superintendents: Its Nature, Meaning, and Content, 37 EDUC. ADMIN. Q. 86, 86 (2001).
CREIGHTON LAW REVIEW
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the process. 24 9 As Patel suggests, legal educators must take time to
deconstruct their problem solving processes so that they can better
educate their students. Once they are able to articulate their own
problem solving frameworks, they will be better able to communicate
250
these processes to students.
d.
Teaching Cognitive Flexibility
As noted above, expert reasoning can hinder accurate problem
solving in that the use of scripts and schemata can cause problem
solvers to be inflexible in their approach and overlook relevant information that someone employing less efficient backward reasoning
would likely see. 25 1 Cognitive psychologists suggest that, to join the
benefits of scripting and flexibility, problem solvers need to learn how
to "proceduralize flexibility." 25 2 Effective problem solvers must be
able to differentiate between those situations in which they can use
their schemata and those in which they need to adjust their proce249. See Garry Marchant & John Robinson, Is Knowing the Tax Code All It Takes to
be a Tax Expert? On the Development of Legal Expertise, in TACIT KNOWLEDGE IN PROFESSIONAL PRACTICE 3 (1999).
250. See Gantt, supra note 147, at 15 (discussing the benefits of presenting problem
solving frameworks to students).
251. The tendency has been discussed extensively both in general psychological
studies and in legal commentaries. See Devine & Kozlowski, supra note 155, at 295;
Frensch & Sternberg, supra note 166, at 169, 176; Hershey et al., supra note 159, at 98;
Eric J. Johnson, Expertise and Decisionmaking Under Uncertainty: Performance and
Process, in THE NATURE OF EXPERTISE 209, 217 (Michelene T.H. Chi et al. eds., 1988)
(reporting how experts evaluating the applications of medical students seeking internships tend-not always with the best results-to overlook information considered irrelevant based on their past experience with medical school curricula and previous
applications); Marchant & Robinson, supra note 249, at 15 ("[E]ven in the legal environment, proceduralization may occur that blinds the expert to the different or unusual
circumstances that may occur."); Keith E. Stanovich, The FundamentalComputational
Biases of Human Cognition: Heuristics That (Sometimes) Impair Decision Making and
Problem Solving, in THE PSYCHOLOGY OF PROBLEM SOLVING 291-342 (J. E. Davidson &
R.J. Sternberg eds., 2003) (finding how experts may project knowledge such they use
heuristics to lead to flawed conclusions); Weinstein & Morton, supra note 225, at 841,
845 ("The more we do something, the stronger or more dominant we make the pathways; the more ingrained the thinking pattern, the 'deeper' the 'ruts' in our minds become."); Wiley, supra note 152, at 727. This rigidity can lead expert attorneys to
evaluate problems "bivalently," such as "guilty/not guilty," and consequently fail to analyze all relevant considerations. Bennett, supra note 40, at 56; Paul Brest & Linda
Hamilton Krieger, Lawyers as Problem Solvers, 72 TEMP. L. REV. 811, 823-24 (1999)
(observing how experienced lawyers may overlook factual nuances due to assumptions
they make about the analogies between their instant client's case and stock facts stored
in schemata); David Chavkin, Fuzzy Thinking: A Borrowed Paradigmfor Crisper Lawyering, 4 CLINICAL L. REV. 163, 182 (1997) (discussing the occurrence of "bivalent" or
"either/or" thinking among attorneys); see cf Gantt, supra note 5, at 452 (citing Tverksy
& Kahneman, supra note 213, at 39-46) (discussing how the utilization of some heuristics can lead to flawed reasoning).
252. Frensch & Sternberg, supra note 166, at 182.
THE PEDAGOGY OF PROBLEM SOLVING
20121
dures to address complex or unusual problems. 25 3 From this research, Krieger reasons, "The real value of skills training in law
schools ... may not be so much to train students in special problemsolving techniques as to assist them in learning how to determine
when to use schemas in problem-solving and when to adapt or modify
them."254
Krieger's suggestion relates to the recommendation by legal scholars that law schools should train students in the elusive principle of
"practical judgment."2 55 Training in such judgment is difficult because such judgment is inherently context specific and often involves
256
tacit knowledge that relies heavily on experience and observation.
Some legal scholars contend that, to teach such judgment, law schools
should provide students with more simulation-based courses and
clinical experiences.257
In any increased emphasis on instruction in practical judgment,
however, law schools must consider how such instruction takes time
away from core instruction in domain knowledge, which is foundational to problem solving and in which law schools seem better
equipped to instruct. Moreover, legal education must not overlook
that all professions to some extent train their new members through
2 58
the experiential observations they make as they begin their career.
Indeed, if law schools determine that education in practical judgment
and practical skills should be increased, one recently proposed option
is for law schools to open their own law firms that hire their recent
253.
254.
255.
Krieger, supra note 36, at 205.
Id. at 206.
See STUCKEY ET AL., supra note 2, at 149; cf MARJORIE M. SHULTZ &
ZEDECK, LSAC
FINAL REPORT:
IDENTIFICATION,
DEVELOPMENT,
SHELDON
AND VALIDATION
OF
PREDICTORS FOR SUCCESSFUL LAWYERING 18-19, 26-27 (2008), available at http://www.
law.berkeley.edu/files/LSACREPORTfinal-12.pdf (conducting comprehensive survey on
behalf of the LSAC that listed "practical judgment" as one of the twenty-six effectiveness factors for successful lawyering).
256. See STUCKEY ET AL., supra note 2, at 149; see also Edmund B. Spaeth, Jr., What
a Lawyer Needs to Learn, in TACIT KNOWLEDGE IN PROFESSIONAL PRACTICE, supra note
154, at 21.
257. See STUCKEY ET AL., supra note 2, at 150-57. Although the study did not assess
students' improvement in "practical judgment" explicitly, Stefan Krieger conducted an
empirical study of whether clinical legal education improved students' problem solving
skills based on other measures. The study had mixed findings, finding that clinical
education had both benefits and limitations in developing such skills. See Stefan H.
Krieger, The Effect of Clinical Education on Law Student Reasoning: An Empirical
Study, 35 WM. MITCHELL L. REV. 359, 394-98 (2008).
258. See Marchant & Robinson, supra note 249, at 3 ("[Iun the end, the legal profession, like most other professions, relies on the ad hoc nature of experience to guide junior members of the profession in the development of their expertise and competence as
legal practitioners.").
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graduates, who would work there for fixed periods before moving to
259
other career opportunities.
Regardless of whether instruction in practical judgment is a curricular emphasis, legal instructors could use more modest techniques
to teach flexibility in problem solving. For instance, instructors could
promote flexibility by discussing at least one comprehensive problem
solving framework relating to doctrinal information to which the students have already been exposed. The instructors then could explain
how that framework applies to a complex problem, preferably an actual case or dispute.2 60 By explicitly applying a problem solving
framework to a complex problem, instructors would be promoting flexibility and contextualizing their instruction in a way that fosters students' problem solving transfer to other areas.
IV.
A.
THE ROLE OF PRACTICE
PSYCHOLOGICAL RESEARCH ON EXPERT PERFORMANCE
In addition to the above pedagogical principles relating to the development of expertise, over thirty years of research in educational
and cognitive psychology have shown that "experts are made, not
born." 26 1 Specifically, although talent and intelligence are factors in
expertise, individuals who become high-level experts do so primarily
due to many hours of sustained and deliberate effort. 26 2 K. Anders
Ericsson, a Florida State University professor who has been called
"the expert on experts,"2 63 posits the "ten-year rule," which shows that
even innately talented individuals need ten years of deliberate practice in domain-related activities to acquire true expertise. 26 4 Other
researchers surveying various fields have similarly concluded that ten
259. See Karen Sloan, What If Law Schools Opened Their Own Law Firms?, NAT'L
L.J. (Aug. 17, 2011), http:/www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202511523234
&slreturn=l&hbxlogin=1.
260. Cf STUCiEY ET AL., supra note 2, at 153 (describing specific methods instructors could use to expose first-year students to law practice without much expense or
time).
261. Schraw, supra note 30, at 257.
262. Id. (adding that "[s]ustained practice even without pronounced native ability
may be sufficient for very high levels of skill development"). Educational and cognitive
psychologists have differed on the extent to which deliberate practice and talent interact to lead to expertise. Id. at 257-58. Some researchers emphasize the role of deliberate practice. See, e.g., Ericsson, supra note 37, at 31-83. Others emphasize the role of
talent. See, e.g., Ellen Winner, The Origins and Ends of Giftedness, 55 Am.PSYCHOLOGIST 159 (2000). Nevertheless, most psychologists recognize that deliberate practice at
least plays a role in the development of expertise. See, e.g., Devine & Kozlowski, supra
note 155, at 294; Schraw, supra note 30, at 255.
263. Christopher Percy Collier, The Expert on Experts:An Expert Guide to Expertise,
FAST COMPANY, Nov. 2006, at 116 (interviewing Ericsson about his findings).
264. Ericsson, supra note 37, at 65.
20121
THE PEDAGOGY OF PROBLEM SOLVING
thousand hours is the special number of hours needed of practice for
26 5
high-level expertise.
The common expression "practice makes perfect" conveys this
general sentiment that more practice is better. Psychological studies
that have examined the development of expert problem solving, however, show that individuals who obtain domain-specific knowledge and
remain active in that domain do not necessarily achieve the same level
of performance. 2 66 Empirical research of individuals in many different disciplines shows that individuals engaged in problem solving
often stagnate in their development when they reach a level of "generalized automaticity" in which the skills involved in problem solving
become fixated as individuals lose conscious control over the skills and
fail to modify them intentionally. 267 Experts who rise above this stagnation deliberately acquire and refine the cognitive skills important to
the problem solving at issue. Essentially, they consistently set new
goals for themselves and engage in cognitive problem solving by ascertaining what aspects of their current performance need to be changed
in order to advance. 26 s For instance, studies of chess experts demonstrate that they consistently challenge themselves, spending as much
26 9
as four to five hours a day studying games between chess masters.
Practice or experience in a domain generally does not lead to expert performance; "successful practice requires identifying specific
goals for how to change the performance." 270 Ericsson therefore reasons that a critical component in the development of expert problem
solving is "deliberate practice." 27 1 Individuals moving toward expertise take advantage of constructive feedback from others, as they engage in a process in which practice is followed by feedback and then by
265.
MALCOLM GLADWELL, OUTLIERS: THE STORY OF SUCCESS 39-40 (2008) (quoting
neurologist, Daniel Levitin, as writing "[tihe emerging picture from such studies is that
ten thousand hours of practice is required to achieve the level of mastery associated
with being a world-class expert-in anything").
266. Ericsson, supra note 37, at 61.
267. Id. at 61, 74 ("[Once a sufficient level of experience and knowledge has been
attained, the relation between additional experience and performance is weak.").
268. Id. at 66-67.
269. Id. at 70-71 (citing K. Anders Ericsson et al., The Role of DeliberatePractice in
the Acquisition of Expert Performance, 100 PsYCHOL. REv.363 (1993)).
270. Id. at 73 (emphasis added). Research in perceptual-motor domains, like piano
and ballet, further shows that individuals who fail to master the fundamentals correctly
in the beginning face obstacles down the road when imprecision in the fundamentals
will frustrate performance. Id. at 70. Legal educators might analogize these results to
law school instruction in order to advocate that law schools must concentrate on training law students in the fundamentals of legal doctrine and analysis so that they have
the building blocks needed to perform complex legal problem solving.
271. Id. at 63.
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more practice and so on. 2 7 2 Experts then exhibit high levels of selfregulatory knowledge because they continually assess their perform2 73
ance, identify weaknesses, and make corresponding adjustments.
In surveying the research on deliberate practice, Geoff Colvin has
summarized the principle by the following elements:
It is activity designed specifically to improve performance,
often with a teacher's help; it can be repeated a lot; feedback
on results is continuously available; it's highly demanding
mentally, whether the activity is purely intellectual, such as
or heavily physical, such
chess or business-related activities,
274
as sports; and it isn't much fun.
In relating these findings to the educational context, educational
research has proven that successful learners engage in metacognitive
strategies in which they continually monitor and then regulate and
improve their tactics for learning. 275 Such processes are called "selfregulated learning." 276 In order for learners to engage in such strategies, they need to have metacognitive knowledge, or knowledge about
their own thinking process. 27 7 This knowledge translates in the classroom environment into knowledge about what the learners know or do
2 78
not know about a certain subject.
In seeking to improve their learning, students engage in a variety
of particular tactics. Research has indicated that, in general, certain
tactics are more effective than others. For instance, reading and re272.
GEOFF COLVIN, TALENT IS OVERRATED: WHAT REALLY SEPARATES WORLD-CLASS
PERFORMERS FROM EVERYONE ELSE 70 (2008); see also Corie L. Rosen & Hillary Burgess,
More than Merely Doing: Deliberate Practice,Feedback, and Academic Success, LEARNING CURVE (Ass'n of Am. Law Sch. Section on Academic Support), Spring 2011, at 2-4
(discussing the importance of practice and feedback to law students' academic success).
273. Ericsson, supra note 37, at 75. Ericsson also emphasizes that "planning" and
"anticipation" are important attributes of expert problem solving. Id. at 61.
274. COLVIN, supra note 272, at 70, quoted in Rosen & Burgess, supra note 272, at 2.
Ericsson applied this principle of deliberate practice in discussing an expert in
medicine:
Medical diagnosticians see a patient once or twice, make an assessment in an
effort to solve a particularly difficult case, and then they move on. They may
never see him or her again. I recently interviewed a highly successful diagnostician who works very differently. He spends a lot of his own time checking up
on his patients, taking extensive notes on what he's thinking at the time of
diagnosis, and checking back to see how accurate he is. This extra step he
created gives him a significant advantage compared with his peers. It lets him
better understand how and when he's improving.
Collier, supra note 263, at 106.
275. See Cao & Nietfeld, supra note 69, at 31-32; Elaine M. Justice & Teresa M.
Dornan, Metacognitive Differences Between Traditional-Age and Nontraditional-Age
College Students, 51 ADULT EDUC. Q. 236, 238 (2001).
276. Cao & Nietfeld, supra note 69, at 31; see also MICHAEL HUNTER SCHWARTZ, ExPERT LEARNING FOR LAw STUDENTS 27-32 (2005) (discussing three phases in the self-
regulated learning cycle).
277. Cao & Nietfeld, supra note 69, at 31.
278. Id. at 32.
20121
THE PEDAGOGY OF PROBLEM SOLVING
reading the textbook is an ineffective approach to learning because it
is not active and does not lead to deep processing of the informabetween
tion. 27 9 In contrast, research has found positive correlations
28 0
active learning tactics and academic performance.
B.
IMPLICATIONS FOR LAW SCHOOL PEDAGOGY
Law school is not designed to graduate "expert" legal problem
solvers because, as noted, practical judgment develops over time and
with experience. 2 8 Moreover, the vast majority of the ten thousand
hours of practice needed for high-level expertise are better saved for
the professional work setting as law school curricula are already being
asked to do more and more. 28 2 With this said, legal education must do
its part in promoting problem solving expertise among its students by
providing them with an instructional environment that helps them develop expert skills. Legal education must provide problem solving
practice opportunities during law school, and given the primary role of
"deliberate practice" in the development of expertise, legal instructors
must concentrate on the extent to which they provide students with
such practice opportunities. The elements summarized by Colvin are
important to highlight in the context of developing problem solving
skills.
28 3
First, the practice must be designed to improve performance.
Classic legal instruction primarily provides students with practice opportunities in the classroom, as it follows the educational research
showing that effective learning involves both instruction in domain
knowledge and working with that knowledge through concrete illustrations. 28 4 Indeed, the traditional law school class hypothetical helps
279. See, e.g., Fergus I.M. Craik & Endel Tulving, Depth of Processingand the Retention of Words in Episodic Memory, 104 J. Experimental Psychol.: Gen. 268 (1975);
A.M. Mackenzie, ExaminationPreparation,Anxiety and Examination Performance in a
Group of Adult Students, 13 INT'L J. LIFELONG EDUC. 373 (1994). Derek Bok, in his 2005
book UnderachievingColleges, cites findings that students remember just twenty percent of the content of class lectures a week later. Caplan, supra note 10, at 63.
280. Cao & Nietfeld, supra note 69, at 32 (listing such active learning strategies as
making chapter notes, outlining, and coming to office hours").
281. See supra notes 255-59 and accompanying text.
282. For instance, given the growing prominence in the role of the regulatory state,
law schools are increasingly requiring courses in administrative law or related topics.
See, e.g., McArdle, supranote 9 (describing how Harvard Law School revised its curriculum in 2008 to require its first-year students to take a course in legislation and regulation). See also STUCKEY ET AL., supra note 2, at 73 (describing one aspect of the core
knowledge of the law which law school graduates should possess as knowledge of "the
regulatory and fiscal framework within which business and other legal transactions and
financial services are conducted").
283. COLVIN, supra note 272, at 67.
284. See supra note 280 and accompanying text.
CREIGHTON LAW REVIEW
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students apply the rules they are learning to novel situations. 28 5 As a
way to improve such illustrations to enhance learning and ultimately
performance, cognitive psychologists add that instructors should employ "authentic" illustrations situated in complex contexts that motivate students towards learning. 28 6 Furthermore, more and more law
students are "Millennials," the generation that graduated from high
school in 2000 or later.28 7 Millennials, compared with earlier generational groupings, are more inspired to learn when they see how their
school-related tasks are strongly connected to real-life, authentic situations. 28 8 To provide deliberate practice, illustrations and hypotheticals (indeed any practice opportunities) must also be in students'
28 9
"learning zone" as opposed to their "comfort zone" or "panic zone."
Legal instructors therefore should test students' domain knowledge by
pressing them to think about authentic, line-drawing scenarios that
challenge their understanding of the material. These scenarios, however, should not be so complex that they require students to use either
problem solving skills or domain knowledge in which they have not
been instructed; in facing such scenarios, students will be unable to
connect their domain knowledge to the scenario in order to reach a
solution. To highlight another of Colvin's elements, the practice must
be "demanding mentally" but not so demanding as to frustrate the
learning process.
Working through good illustrations in class, however, does not
alone constitute deliberate practice for legal problem solving. Practice
must indeed be practice; that is, students must actually work through
the skills that are important to effective legal problem solving. A list
of such skills used in legal problem solving is undoubtedly lengthy and
potentially open-ended. 2 90 In focusing the discussion in this Article on
285.
See
RUTA
K.
STROPUS & CHARLOTTE
D.
TAYLOR, BRIDGING THE GAP BETWEEN
39 (2d ed. 2009) (discussing the
relevance of hypotheticals to the instruction in law school classrooms).
286. See Anderson et al., supra note 46, at 9 (discussing arguments advocating that
learning in a complex, social context is important to motivate students because they can
see how their learning applies in such a context).
287. Lustbader, supra note 210, at 339-40.
288. Angela Provitera McGlynn, Teaching Millennials: Greater Need for StudentCentered Learning, 16 HIsP. OUTLOOK HIGHER EDUC. 19 (2005), condensed in Teaching
Millennials, Our Newest CulturalCohort, EDUC. DIG., Dec. 2005, at 12, 15-16, cited in
Lustbader, supra note 210, at 340 n.75.
289. COLVIN, supra note 272, at 68 (providing terms adopted by Noel Tichy, a professor at the University of Michigan Ross School of Business). To be in the "learning zone,"
practice must push individuals to develop skills that are "just out of reach." Id.
290. For instance, legal scholars have addressed numerous other aspects of developing problem-solving skills, such as the extent to which students should develop their
"problem-finding" skills in attacking real-word, complex, ill-structured problems. See
Bennett, supra note 40, at 45-82; see also supra notes 215-24 and accompanying text
(discussing suggestions on the domain knowledge necessary for effective lawyering).
COLLEGE AND LAW SCHOOL: STRATEGIES FOR SUCCESS
20121
THE PEDAGOGY OF PROBLEM SOLVING
the core cognitive attributes important to legal problem solving, however, the question still arises whether students' listening to and thinking about hypotheticals in class provides them with the practice
necessary to gain expert performance. Research across many disci291
plines suggests the answer is no.
Even if students are exposed to instructional techniques, like hypotheticals, that enhance their metacognitive awareness, they may
not adjust their learning strategies in order to improve their understanding of the doctrinal material. For instance, recent research on
undergraduates found that the students' metacognitive awareness of
difficulties in learning the class material did not automatically cause
them to change their study strategies. 2 92 Specifically, in research on
students taking an educational psychology course in their junior and
senior year, the students did not vary their study strategies based on
the different kinds of learning difficulties they faced in the course.
They consistently used rehearsal strategies, such as "reread[ing the]
textbook chapter and study[ing] the lecture notes," even when they
encountered more challenging problems in the course, such as analyz29 3
ing the classroom scenarios.
Instructors therefore cannot rely on students' metacognitive
awareness of their lack of understanding of course material to lead
them to choose effective study strategies. 2 94 At the law school level,
where developing problem solving skills is key, instructors must be
intentional about creating an educational environment that gives students insights into how best they should study. 29 5 Moreover, instrucThis Article focuses on how instructors can help students develop problem-solving skills
in typical classroom setting where problems are more "well-structured." Cf. Bennett,
supra note 40, at 53 (contrasting the two types of problems). Of course, students may
have to develop skills beyond those addressed in this Article to solve the complex
problems they face in day-to-day lawyering.
291. See supra notes 263-74 and accompanying text (discussing the research of Anders Ericsson and others on expertise).
292. Cao & Nietfeld, supra note 69, at 31.
293. Id. at 38-39. The study involved ninety-four college students at a mid-size university in the southeastern United States. Id. at 33.
294. This proposition assumes that students, in fact, have such metacognitive
awareness. In my work with students as part of our Academic Success Program, I tell
them that "the power of denial is incredible" because students often deceive themselves
into thinking that they understand the course material better than they actually do (an
example of the general principle that we tend to judge ourselves by our intentions and
not our actions although we tend to judge others by their actions and not their intentions). Students therefore first must become aware of their comprehension difficulties
before they can choose the most effective strategies to increase their knowledge and
improve their performance.
295. See STUCKEY ET AL., supra note 2, at 127-28 (stating that legal education should
help its students "improve their self-directed learning skills"). Not all instructor intervention is equally effective. Some research has shown instructors' efforts at promoting
students' metacognitive awareness affects the students' metacognitive monitoring. See,
754
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tors must consider how their assessment tools impact students' study
2 96
strategies and metacognitive awareness.
One often-discussed way to create an environment that promotes
students' metacognition relates to another of Colvin's elements of deliberate practice: Instructors must give the right level of feedback to
their students. Educational researchers agree that frequent, prompt
feedback and assessment promote effective learning. 29 7 Learning has,
in fact, been called a "loop in which teachers facilitate students' active
learning, students perform, and teachers provide feedback that shows
students how their learning and performance can be improved."29 s
Assessment at the end of the semester often does not accomplish this
goal; therefore, assessment must also be "formative" in providing students with feedback during the learning process so that they can com299
plete the learning loop.
Legal educators have endorsed the use of practice problems and
exercises in the course context. 300 Working through such problems
provides students with important practice that prepares them for the
final exam and future problems. Effective deliberate practice, however, requires learners to engage in sophisticated self-reflection, planning, and redirection. 30 1 Law students who are likely still learning
the domain knowledge at issue cannot engage in such self-assessment;
teacher feedback is therefore critical.
Methods to improve student feedback in law school have recently
garnered much attention in the legal literature. 30 2 In an effort to ene.g., Robert G. Curley et al., RelationshipsBetween Study Activities and Achievement as
a Function of GradeLevel and Course Characteristics,12 CONTEMP. EDUC. PSYCHOL. 324
(1987). The Cao and Nietfeld study discussed in the text, however, did not show such a
correlation. Cao & Nietfeld, supra note 69, at 39. In particular, the students in their
study as a whole failed to exhibit metacognitive awareness even though the instructors
"intentionally introduced the concept of metacognitive knowledge and skills, utilized
weekly monitoring exercises to prompt students' reflection on their understanding and
selection of study strategies, and provided feedback on students' test performances
throughout the semester." Id.
296. See Cao & Nietfeld, supra note 69, at 40 (discussing the relationship between
course assessment and study strategy); Curley et al., supra note 295, at 384 (discussing
the relationship between course assessment and study strategy).
297. See, e.g., Mary Deane Sorcinelli, Research Findings on the Seven Principles,in
APPLYING THE SEVEN PRINCIPLES OF GOOD PRACTICE IN UNDERGRADUATE EDUCATION 13,
18 (Arthur W. Chickering & Zelda Gamson eds., 1991).
298.
Gerald F. Hess, Heads and Hearts: The Teaching and Learning Environment in
Law School, 52 J. LEGAL EDUC. 75, 105 (2002).
299. Id. at 105-06.
300. See, e.g., id. at 107-09; Terri LeClercq, Principle4: Good PracticeGives Prompt
Feedback, 49 J. LEGAL EDUC. 418, 419 (1999); Paula Lustbader, Teach in Context: Responding to Diverse Student Voices Helps All Students Learn, 48 J. LEGAL EDUC. 402,
410-11 (1998).
301. See supra notes 271-73 and accompanying text.
302. For instance, the January 2011 issue of The Learning Curve, the newsletter of
the Association of American Law Schools Section on Academic Support, contains several
20121
THE PEDAGOGY OF PROBLEM SOLVING
courage legal instructors feeling overwhelmed with the prospect of
giving extensive, individualized feedback to every student, Terri
LeClercq in her article in the Journal of Legal Education offers sev30 3
eral suggestions for feedback techniques that are not burdensome.
Although she rightly contends that some feedback is better than none,
the evidence is overwhelming that frequent, individualized feedback is
304
what is most effective.
Legal educators may therefore seek to strike this balance by shifting some of the intentional feedback to law students themselves. The
research indicates that students have difficulty developing self-regulated knowledge without instructor guidance, 30 5 but requiring students to complete certain tasks during the course can at least enhance
the self-regulation process. 30 6 Legal instructors could, for instance,
require students to complete practice problems during the semester;
and as opposed to giving them individualized feedback, the instructors
could provide students with sample answers they would use to assess
their own responses. Instructors could also require students to form
feedback groups in which students shared responses with each other
and then used the sample answers to assess their classmates' responses. 30 7 Regardless of the specific form of feedback, the research
on deliberate practice underscores that law schools are not giving stuarticles discussing methods to improve student feedback. See LEARNING CURVE (Ass'n of
Am. Law Sch. Section on Academic Support), Jan. 2011, available at http://www.aals.
org/documents/sections/academicsupport/LearningCurveJan20l1.pdf; see also STUCKEY
ET AL., supra note 2, at 235-63; SULLIVAN ET AL., supra note 2, at 162-84 (providing a
critique of traditional law school student assessment techniques).
303. See LeClercq, supra note 300, at 418-21. In a world of constant time pressure,
learners are charged with assessing how to make such practice most effective and how
to know when time spent on additional practice would be better spent elsewhere. Such
issues of efficiency and prioritization are perhaps the most difficult to teach in the classroom because their answers depend on so many variables that apply uniquely to each
student.
304. See, e.g., Victor M. Goode, There Is a Method(ology) to this Madness: A Review
and Analysis of Feedback in the ClinicalProcess, 53 OKLA. L. REV. 223, 236 (2000) (discussing the consensus among clinical law faculty that feedback should be frequent and
timely); Susanne P. Lajoie, Transitions and Trajectoriesfor Studies of Expertise, EDUC.
RESEARCHER, Nov. 2003, at 21, 22-23 (analyzing the role of feedback in developing expertise); LeClercq, supra note 300, at 418 (citing Arthur W. Chickering & Zelda F. Gamson, Seven Principles for Good Practice in UndergraduateEducation, 39 AM. Assoc.
HIGHER EDUC. & ACCREDITATION BULL. 3, 5 (1987), available at http://www.aahea.org/
articles/sevenprinciples1987.htm (emphasizing the importance of frequent feedback)).
305. See supra notes 292-93 and accompanying text.
306. Stuckey, for instance, recommends that students be required to keep reflective
journals in at least one course during the first semester of law school. STUCKEY ET AL.,
supra note 2, at 128.
307. These strategies would not be as effective as individualized feedback from the
instructor, but they recognize the importance of students' developing their own skills in
being able objectively to evaluate their own work and the work of others. Cf. Owasso
Indep. Sch. Dist. No. 1-011 v. Falvo, 534 U.S. 426, 433-34 (2002) (holding that student
peer grading did not violate the Family Educational Rights and Privacy Act ("FERPA"),
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dents the practice needed for problem solving in the profession unless
schools provide them proper feedback while they are in school. 30 8
Finally, as Colvin highlights, deliberate practice must be repeated
a lot.3 0 9 Indeed, the ten-year rule and ten-thousand-hour principle
stress that a little practice does not produce experts-likely even experts in training. Although the process of developing legal problem
solving expertise is different from hitting hundreds of golf balls a day
to become a pro golfer, it is more analogous than one might think. The
basic principle still applies that a huge amount of practice is needed
for expertise. Legal educators thus must critically consider the extent
to which law school is providing this practice, and in turn, they must
revisit the apparent tension between the amount of time they devote
to practice in problem solving skills versus the amount of time they
devote to instruction in domain knowledge, or "course coverage."
V. EFFECTS ON COURSE COVERAGE
Discussions like those in this Article on how to improve law school
pedagogy may frustrate many legal instructors. The old adage "easier
said than done" comes to mind given the pressures legal educators
face to cover a certain amount of domain knowledge, or doctrinal content, in their classes. In her book, Learner-CenterTeaching, Maryellen Weimer surveys the literature on learning to discuss the role of
content in instruction. She powerfully argues that higher education's
"race to cover content" has negative effects on both students and their
instructors. 310 She adds that "so much knowledge exists now that it is
impossible to teach students everything they need to know about anything" and that therefore teaching students how to be lifelong learners
is critical in today's educational landscape. 31 1 Content, for Weimer,
serves the dual roles of establishing a knowledge base and advancing
3 12
learning.
Teaching content is not separate from teaching learning. As discussed, extensive research in educational and cognitive psychology
reasoning that such grading can serve important educational goals, including enhancing students' understanding of the material being assessed).
308. See supra note 300 and accompanying text (providing specific suggestions on
how to improve feedback).
309.
310.
COLVIN, supra note 272, at 69.
MARYELLEN WEIMER, LEARNER-CENTERED TEACHING: FIVE KEY CHANGES TO
PRACTICE 47-49 (2002); see also STUCKEY ET AL., supra note 2, at 66 (advocating that
legal education should train students in "self-reflection and lifelong learning skills").
311. WEIMER, supra note 310, at 49. Weimer adds, "If we aim to be learner-centered, content still needs to be a focal point of the universe, but it can no longer be the
exclusive center, the only or even most important variable when it comes to instructional decision making." Id. at 50.
312. Id. at 51.
2012]
THE PEDAGOGY OF PROBLEM SOLVING
has demonstrated that students learn how to be better learners when
those skills are taught in a doctrinal context. 31 3 This research underscores the benefit of what has become known as "active learning," in
which students are actively engaged in the learning process by engaging in various techniques to get multiple senses involved during
3 14
learning.
Underlying the assertion that content serves dual roles, however,
is the question of whether instructors can cover the same amount of
content and then simply "add-on" that coverage with instruction in
learning. As Weimer recognizes, "[Slome content must go." 3 15 The
plain reality is that effective problem solving instruction takes timeclass time. 3 16 In a classic article on legal education, Anthony Amsterdam recognized that law schools cannot increase their emphasis on
developing students' analytical and problem solving skills without
sacrificing some doctrinal coverage. 3 17 Writing in 1984 on what he
hoped law schools would look like in the twenty-first century, he
remarked:
[B]y the mid-nineties . .. [p]eople began to ask why do we
need to teach case reading and doctrinal analysis to the same
students twenty-nine times sub nom. torts, contracts, criminal law, admiralty, antitrust, civil rights, corporations, commercial law, conflict of laws, trusts, securities regulation, and
so forth? Given the substantive proliferation, complexity,
and fast-paced growth of modern law, it had been impossible
to teach students the corpus juris, in any meaningful sense,
Was it not therefore a wiser delong before the 1980s ....
ployment of scarce teaching resources to devote some of them
to giving students a broader range of legal analytic methods
313. See supra Part II. In addition to the studies discussed in Part II, studies of
remedial programs in education generally have shown that students do not acquire
learning skills nearly as well absent a doctrinal course context. WEIMER, supra note
310, at 53 ("There is not much motivation to think critically when there is no legitimate
content to think about. There is not much motivation to work on skills that prepare for
future encounters with content.").
314. See id. at 52-53 (describing active learning generally as "that large repertoire of
strategies and techniques designed to involve and engage students"). When I teach students how to be active learners, I emphasize how they should use more than one of their
senses as they learn by, for instance, taking notes on course reading, developing questions about the material during reading, talking about the course material with fellow
students, and crafting charts, outlines, or diagrams on the material.
315. Id. at 54. Weimer adds, "Faculty are bright, curious, intrinsically motivated
learners. If we cannot figure out how to organize our content more efficiently so that we
have five minutes now and then to work on . . . developing our students as learners,
then nobody can." Id. at 71.
316. Even adopting the "shortcut" suggestions in this Article, focusing expressly on
problem solving skills undeniably takes time away from class time that could be spent
in discussing additional doctrinal material.
317. See Amsterdam, supra note 20, at 618.
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and skills, which would enable the students more effectively
law, as they
to acquire, understand, and use the substantive
3 1s
needed it, after they got out of law school?
Amsterdam acknowledged the political ramifications of such an
allocation redeployment, but he likely underestimated the growing
pressure law schools would face in the twenty-first century to prepare
students for the bar examination. 319 From the rise in influence of law
school rankings to the changes in American Bar Association accreditation standards, law schools are facing mounting pressure to increase
the bar passage rates of their students. 3 20 Such pressure, in part, has
fueled the rise of law school academic support and bar support programs; through such programs, law schools can provide overt instruction in learning or review of bar subject material, and they often do so
as an additional program beyond the regular doctrinal course context
so that students are exposed to the same amount of content as before
321
the program's institution.
Even if these "add-on" approaches effectively contextualize skills
development, they overlook the difficult issues of how problem solving
methodologies can be better incorporated directly into doctrinal
courses and what content coverage will have to be removed if done so.
In his article titled "Teaching Reasoning," Vincent Blasi cogently argues that law schools are so focused on content coverage that they are
318. Id.
319. See WEIMER, supra note 310, at 67.
320. See Jellum & Reeves, supra note 133, at 647 (reasoning that "many law schools
have become increasingly concerned about the bar passages [sic] rates of their graduates"). For instance, in 2007 the American Bar Association changed its Standards for
Approval of Law Schools to codify specific bar passage rate standards with which a law
school must comply in order to demonstrate, pursuant to Standard 301, that it is "maintain[ing] an educational program that prepares its students for admission to the bar."
See ABA Standards,supra note 6, at 18-20. The Standards Review Committee is currently considering adding an interpretation to Standard 301 to clarify that even satisfying the specific bar passage rate standards is not conclusive evidence that a school has
complied with Standard 301. See SRC April '12 Meeting Materials,A.B.A. STANDARDS
REV. COMMITTEE, http://www.americanbar.orgfcontent/dam/aba/migrated/2011_build/legal-education/committees/standards-review-documents/april2012/
20120404_aprill2-src meeting-materials.authcheckdam.pdf (last visited May 2, 2012).
321. For instance, Regent adopted for classes graduating in 2011 and later a new
curriculum that requires many students to take a two-credit bar preparation course.
See also Jellum & Reeves, supra note 133, at 647-48, 660-61 (noting that many law
schools are instituting programs explicitly designed to improve the bar passage rate of
their graduates and that many of these programs are connected with the schools' ASP).
Certain ASPs do include instruction that is within a doctrinal course context. For instance, Seattle University School of Law conducts a seven-week ASP summer program
prior to the first year in which participants take a Criminal Law course that covers not
only doctrinal course material but also "academic and professional skills development."
See SEATTLE UNIV. SCH. OF LAw, supra note 146; see also e-mail from Paula Lustbader to
author, supra note 146 (discussing the program, which, in addition to covering substantive doctrine, "focuses on and explains various techniques of law school classroom
pedagogy and their intended educational effects for students").
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failing to teach students how to engage in "sustained analysis" where
they patiently can track a commentator's argument on one issue from
start to ultimate resolution. 3 22 He adds that this failure relates to law
schools' failure at prioritization-that legal instructors are too resistant to leave their "pedagogic[al] projects on the cutting room
32 3
floor."
Roy Stuckey and others in Best Practices for Legal Education similarly recognize that most law school curricula "emphasize
teaching substantive law far beyond core knowledge and skill and far
beyond what typical law school graduates need to know and understand on their first day of practice." 32 4 They recommend that law
schools and bar examiners "reconsider" the amount of doctrinal knowledge lawyers should have when they begin practice. 32 5 Such reconsideration by bar examiners would likely lead to reconsideration by law
schools, for schools often make curricular choices in response to the
specific content coverage of the bar examinations their students
32 6
The rise of the Multistate Performance Test is a promising
take.
start to reforming the bar examination so that it focuses less on doctrinal knowledge and more on problem solving, and similar reform ef3 27
forts should be encouraged.
In addition to any such reforms, prioritizing the goals of legal education is certainly more important now than ever before as the information overload in modern society increases. 3 28 To address this
prioritization, when Harvard added three new courses to its first-year
322. Vincent Blasi, Teaching Reasoning, 74 CHI.-KENT L. REv. 647, 647-48 (1999).
Blasi's approach resembles the approach offered by Stephen Friedman. Friedman contends that law schools should present "practice-oriented education" in which students
take several courses in a particular area in order to develop an understanding of the
area's "conceptual regime." Friedman, supra note 17, at 93. He adds that even though
students will focus on one regime, learning to navigate such a regime is a skill the students can transfer to another practice area. Id. at 91.
323. Blasi, supra note 322, at 653.
324. STUCKEY ET AL., supra note 2, at 75.
325. Id. at 76.
326. Since 2000, Regent University School of Law, for instance, has instituted several curricular reforms in response to its analysis of the subjects tested on state bar
examinations and its students' performance on those examinations.
327. The Multistate Performance Test ("MPT") states that it primarily tests the
skill of "problem solving." See 2012 MULTISTATE PERFORMANCE TEST INFORMATION
BOOKLET 6 (2012), available at http://www.ncbex.org/assets/mediafiles/InformationBooklets/MPTIB2012.pdf. Thirty-three states, as well as the District of Columbia,
Guam, and Northern Mariana Islands, now use the MPT as part of their bar examination. See MPT Jurisdictions,NAT'L CONF. BAR EXAMINERS, http://www.ncbex.org/multistate-tests/mptmpt-jurisdictions/ (last visited May 4, 2012). Two more are set to adopt
the test by February 2014. Id.
328. See World's Data, supra note 200 (discussing the growing amount of digital
information transmitted each year). This information overload has led to the proliferation of multitasking, which studies show is less efficient than focusing on a single task
at a time. See, e.g., Joshua S. Rubenstein et al., Executive Control of Cognitive Processes
in Task Switching, 27 J. EXPERIMENTAL PSYCHOL.: HUM. PERCEPTION & PERFORMANCE
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curriculum, including the problem solving course described above, it
reduced from five to four the number of credits for the first-year doctrinal courses-property, contracts, torts, criminal law, and civil procedure. 3 29 Others have addressed this prioritization by proposing
aggressive changes to law school curricula that, for instance, transform the third year into an apprentice-type program that focuses
solely on simulation and experiential-based instruction. 33 0 In this prioritization, however, hours allocated to required courses need not be
cut or course offerings of upper-level courses that are not simulation
or experiential-based need not be trimmed. Instructors, instead, may
adopt Blasi's suggestion of scrutinizing the content coverage in individual currently-offered classes to make sure that coverage is balanced with explicit problem solving instruction. Whatever approaches
legal educators adopt, they must take seriously the commitment to
problem solving instruction. As addressed above, they must properly
contextualize their discussion of problem solving and adequately
ground students in domain knowledge so that their students can develop the necessary problem solving skills.
VI.
CONCLUSION
Legal education is on the brink of a renaissance. 3 3 1 One important factor in this impending change is a renewed recognition of the
fundamental principle that teaching students how to think like lawyers involves teaching them how to solve problems like lawyers. Best
practices for law school teachers now emphasize the importance of in3 32
structional models that promote students' problem solving skills.
Problem-based education has been adopted in other professional
school contexts, like business and medical schools, 33 3 and law schools
763-97 (2001) (finding multitasking to create inefficiencies in the switching of various
tasks). Modeling prioritization thus has taken on new significance.
329. McArdle, supra note 9.
330. For instance, Washington and Lee School of Law recently transformed its curriculum by adopting a third-year program that is "entirely based on learning through
engagement-combining practicum courses, practice simulations, client interactions,
the formation of professional identity and the cultivation of practice skills." See About
the J.D. Program at W&L, WASHINGTON & LEE U., http://law.wlu.edu/admissions/
page.asp?pageid=311 (last visited Sept. 2, 2011); see also STUCKEY ET AL., supra note 2,
at 280-81 (recommending a third-year curriculum in which "most courses could be organized as simulated law firms in which students work individually and in groups to
solve legal problems").
331. See, e.g., Lauren Carasik, Renaissance or Retrenchment: Legal Education at a
Crossroads, 44 IND. L. REv. 735, 736-38 (2011) (arguing the legal education is a crossroads that may lead to renaissance or retrenchment depending on how the legal academy responds to the calls and pressures for change).
332. STUCKEY ET AL., supra note 2, at 141-57.
333. Id. at 145.
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THE PEDAGOGY OF PROBLEM SOLVING
should thus critically reflect on how problem solving instruction
should be enhanced in their curricula.
In this reflection, legal educators must not overlook foundational
principles in educational and cognitive psychology, where research on
problem solving is flourishing. Law schools must first recognize that,
in order to promote problem solving transfer, instruction in problem
solving must be properly contextualized in a doctrinal course where
instructors offer students multiple analogs and explicitly discuss with
students the issues that impact how the knowledge might be transferred. 334 In this recognition, law schools must acknowledge that
stand-alone courses or academic support programs focusing on problem solving can be successful in developing that skill but only if they
are explicitly tied to domain knowledge that relates to material in students' doctrinal classes. Second, law schools must accept that solid
education in domain knowledge is a precondition to skill development
in problem solving. They therefore must wrestle with the balance between skills and doctrine and examine whether their skills and
clinical instruction is requiring students to engage in problem solving
for which they have an inadequate doctrinal base. 33 5 Finally, law
schools must appreciate the role of deliberate practice in problem solving development. They must consider how deliberate practice relates
to metacognitive awareness and how they can utilize new techniques
to improve feedback and assessment so that students can become selfregulated learners.
Educational and cognitive psychology undoubtedly has much
more to say about how legal instruction can be improved. 3 36 The primary principles discussed in this Article represent a good place to
start serious reexamination of law schools' problem solving instruction. Recent literature proclaims the benefits of instruction in legal
problem solving;3 37 now law schools must implement such instruction
and confront the costs it may exact on doctrinal coverage. Perhaps
Anthony Amsterdam's description will come true after all.
334. See Anderson et al., supra note 46, at 7.
335. See supra Part III.
336. See, e.g., Mayer & Wittrock, supra note 30, at 289-96 (discussing particular
instructional methods that enhance problem solving).
337. See, e.g., STUCKEY ET AL., supra note 2, at 141-46; see also Myron Moskovitz,
Beyond the Case Method: It's Time to Teach with Problems, 42 J. LEGAL EDUC. 241
(1992) (providing the foundational discussion for much of the recent literature on problem solving instruction in law schools).
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