Wednesday, September 21, 2022
Beth A. Brennan (Montana), Explicit Instruction in Legal Education: Boon or Spoon?, 52 U. Mem. L. Rev. 1 (2021):
While legal education unquestionably hones students’ critical thinking skills, it also privileges students who are faster readers and have prior background knowledge or larger working memories. According to the prevailing mythology of law school pedagogy, students learn by struggling to find their way out of chaos. Only then is their learning deep enough to permit them to engage in critical thinking and legal reasoning.
Learning theory and research suggest this type of “inquiry” learning is not an effective way to introduce novice learners to a subject. Lacking basic substantive and procedural knowledge, students’ struggles are often unproductive and dispiriting.
Initial explicit instruction early in a student’s learning more predictably creates stable, accurate knowledge. Because higher-order thinking depends on having some knowledge, ensuring students have a strong foundation of substantive and procedural knowledge increases the likelihood that they will develop critical thinking skills.
However, legal education uniformly dismisses anything that looks like “spoon-feeding.” If the academy is going to incorporate learning theory into its pedagogy, it must understand and articulate the differences between spoon-feeding and explicit instruction.
This Article examines explicit instruction as a pedagogical tool for legal educators. Part I examines cognitive psychological theories of thinking and learning to understand the differences between spoon-feeding and explicit instruction and explain why initial explicit instruction is useful. Part II delves into the cognitive differences between novices and experts that support initial explicit instruction. Part III examines experts’ cognitive barriers to effective teaching. Part IV provides examples of how explicit instruction can be used in the law school classroom.
The Article concludes that the time is ripe for the academy to bring explicit instruction out of the shadows, and to incorporate initial explicit instruction into legal education.