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«I. INTRODUCTION Picture a first-semester legal writing classroom. Students re- ceive their first important graded assignment in law school. They ...»

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Carrie Sperling and Susan Shapcott*


Picture a first-semester legal writing classroom. Students re-

ceive their first important graded assignment in law school. They

anxiously flip through the pages of their office memo and see more markings on their papers than they have ever seen on any- thing they have written in the past. Their professor commented on their organization, their analysis, their use of authority, their grammar and punctuation, and even their citation. Overwhelmed by the feedback, students turn to the end of the memo to find their grade. Fixated on the score, one student immediately emails the professor. The email says, “Professor, I am shocked and dis- appointed in the grade I received on my memo. I received a B-, but I’m not a B- student. I would like to make an appointment with you to discuss my grade.” When the student meets with his professor, she asks if he read her comments and suggestions. She reminds him that this is just one assignment and that he can improve on the next assign- ment if he incorporates her feedback. The student seems defen- sive. He says he read the comments and he just didn’t feel like he deserved a B-. When the professor tries discussing each comment with him, he becomes argumentative, justifying his work in each * © 2012, Carrie Sperling and Susan Shapcott. All rights reserved. Carrie Sperling is an Associate Clinical Professor of Law at the Sandra Day O’Connor College of Law, Arizona State University. Susan Shapcott, a doctoral student at the University of Bath in the United Kingdom, holds an M.A. in educational psychology with a focus in learning from Arizona State University. The Authors would like to thank Jenifer Husman, for her guidance through the research on mindsets and learning, and Marcy Karin and Kimberly Holst for their input on early drafts. The Authors are also indebted to Terrill Pollman, Judy Stinson, Linda Edwards, Kirsten Davis, Jeanne Merino, Abigail Patthoff, ALWD’s Rocky Mountain Scholars’ Workshop, Louis Sirico, Steve Johansen, Christopher Rideout, Jill Ramsfield, Myra Orlen, Jim Sowerby, and the Legal Writing Institute’s Writers Work- shop.

40 The Journal of the Legal Writing Institute [Vol. 18 part of the memo. Finally, he changes the topic, claiming that he worked for a law firm before law school and often wrote memos for the lawyers there. Before he leaves her office, the student tells his professor that her grading is unfair and her standards unclear.

That same day, the professor meets with another student, one who received a C+ on the memo assignment. Instead of arguing for a change in his grade, this student wanted to know how to im- prove. After the shock and disappointment of the low grade, he said he carefully read the professor’s comments. He said he want- ed tomeet with her so he could be sure he understood what she was asking him to do on the next memo. As the meeting ends, the student thanks the professor. He tells her that he never had a professor spend so much time giving the kind of detailed feedback she had given him on his writing. He says he appreciates the time she took to help him improve.

This experience prompted the professor to post a question on the Legal Writing Institute’s listerv.1 She asked, “Why the different reactions? One student took ownership of the problem and accepted my suggestions for how to improve. The other student denies there’s a problem and fails to seriously consider my comments. I’d be willing to wager which student will learn more from law school and from summer jobs.”2 The posting led to dozens of similar responses. These professors, like other law professors, continue to see a vast distinction in students’ reactions to the feedback they provide. They see students thankful for critical feedback, who use the feedback to learn and improve. But they also see students who don’t seem to benefit from the feedback.

They either resist their professors’ guidance, often arguing defensively against it, or they become despondent, avoiding the professor rather than seeking help to improve.

1. Legal Writing Institute, Listservs, http://www.lwionline.org/mailing_lists.html (accessed July 29, 2011) (“The listserv is a closed discussion list intended to provide a forum in which scholars and teachers of legal writing can discuss topics in their field.... It now has approximately 600 subscribers. Only professional teachers of legal writing are eligible to join the listserv.”).

2. This scenario comes from a compilation of postings on the LWI listserv in June

2010. The authors used a literary strategy designed to provide an insider’s view without revealing the real characters represented by this somewhat fictionalized version of events.

For uses of this technique, see Michael Bamberger & Alan Shipnuck, The Swinger (Simon & Schuster 2011), and Joe Klein, Primary Colors: A Novel of Politics (Grand C. Publg.


2012] Fixing Students' Fixed Mindsets 41 The listserv exchange brought life to a question that nags many legal writing professors. Why do students react so differently to the feedback they receive? And is there some way to deliver feedback so that all students use it to improve their performance?

Although students’ reactions to feedback continue to baffle many legal writing professors, the questions are empirical rather than philosophical, and the answer lies in decades of established research in educational, social, and cognitive psychology. This research has been broadly applied in different fields to improve students’ performance.3 Students’ reactions to feedback are guided by the implicit beliefs they hold about intelligence.4 As the research demonstrates, students’ implicit beliefs about intelligence predict how they respond.5 Some students believe that intelligence is a fixed trait, that it remains fairly stable over the course of one’s lifetime.6 Others believe that intelligence is malleable, that people can significantly increase their intelligence during their lives.7 Researchers refer to people who believe that intelligence is a fixed entity as having a fixed or entity mindset, and they refer to people who believe that intelligence is malleable as having an incremental mindset.8 These different belief systems not only drive their reaction to feedback, but they also affect students’ goal orientation, effort, and persistence. As legal writing professors, we must first understand why students react to feedback in different way in order to craft lasting solutions that will improve our effectiveness as teachers.

For years, legal writing professors have been expressing their dismay about students’ reactions to feedback. More recently, legal educators have become more focused on assessment and feedback in legal education.9 A growing chorus of authors and experts

3. Infra pt. II (discussing studies linking mindset and students’ reactions to difficulty in academic settings).

4. Sandra Graham, Implicit Theories as Conceptualized by an Attribution Researcher, 6 Psychol. Inquiry 294, 294 (1995).

5. Id.

6. Carol S. Dweck & Ellen L. Leggett, A Social-Cognitive Approach to Motivation and Personality, 95 Psychol. Rev. 256, 259 (1988).

7. Id.

8. Carol S. Dweck, Mindset: The New Psychology of Success 11 (Ballantine Bks. 2006) (defining a fixed mind set); Daniel C. Molden & Carol S. Dweck, Finding Meaning in Psychology: A Lay Theories Approach to Self-Regulation, Social Perception, and Social Development, 61 Am. Psychologist 192, 193 (2006).

9. See e.g. Gerald Hess & Steven Friedland, Techniques for Teaching Law 285–290 42 The Journal of the Legal Writing Institute [Vol. 18 has recommended that law schools change the way they assess students.10 The American Bar Association also entered the debate, and it will soon prompt a sea change in law school assessment by requiring law schools to “apply a variety of formative and summative assessment methods across the curriculum to provide meaningful feedback to students.”11 However, these changes have (Carolina Academic Press 1999); Gregory S. Munro, Outcomes Assessment for Law Schools (Inst. L. Sch. Teaching 2000); William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 162–184 (Wiley 2007) [hereinafter Carnegie Report]; Ron M.

Aizen, Student Author, Four Ways to Better 1L Assessments, 54 Duke L.J. 765 (2004);

Daniel L. Barnett, Triage in the Trenches of the Legal Writing Course: The Theory and Methodology of Analytical Critique, 38 U. Tol. L. Rev. 651 (2007); Robin A. Boyle & Rita Dunn, Teaching Law Students through Individual Learning Styles, 62 Alb. L. Rev. 213 (1998); Leah M. Christensen, Enhancing Law School Success: A Study of Goal Orientations, Academic Achievement and the Declining Self-Efficacy of Our Law Students, 33 L. & Psychol. Rev. 57 (2009); Andrea A. Curcio, Assessing Differently and Using Empirical Studies to See If It Makes a Difference: Can Law Schools Do It Better? 27 Quinnipiac L.

Rev. 899 (2009); Kirsten K. Davis, Building Credibility in the Margins: An Ethos-Based Perspective for Commenting on Student Papers, 12 Leg. Writing 73 (2006); Steven Friedland, A Critical Inquiry into the Traditional Uses of Law School Evaluation, 23 Pace L.

Rev. 147 (2002); Kristin Gerdy, Teacher, Coach, Cheerleader, and Judge: Promoting Learning through Learner-Centered Assessment, 94 L. Libr. J. 59 (2002); Jane Kent Gionfriddo, The “Reasonable Zone of Right Answers”: Analytical Feedback on Student Writing, 40 Gonz. L. Rev. 427 (2005); Victor Goode, There Is a Method(ology) to This Madness: A Review and Analysis of Feedback in the Clinical Process, 53 Okla. L. Rev. 223 (2000); Bonita London et al., Psychological Theories of Educational Engagement: A Multi-Method Approach to Studying Individual Engagement and Institutional Change, 60 Vand. L. Rev. 455 (2007); Ellie Margolis & Susan L. DeJarnatt, Moving beyond Product to Process: Building a Better LRW Program, 46 Santa Clara L. Rev. 93, 117 (2005); Allison D. Martin & Kevin L. Rand, The Future’s So Bright, I Gotta Wear Shades: Law School through the Lens of Hope, 48 Duq. L. Rev. 203 (2010); Susan E. Provenzano & Lesley S. Kagan, Teaching in Reverse: A Positive Approach to Analytical Errors in 1L Writing, 39 Loy. U. Chi. L.J. 123 (2007); Sheila Rodriguez, Using Feedback Theory to Help Novice Legal Writers Develop Expertise, 86 Det. Mercy L. Rev. 207 (2008–2009); Michael Hunter Schwartz, Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching, 38 San Diego L. Rev. 347, 349 (2001); Greg Sergienko, New Modes of Assessment, 38 San Diego L. Rev. 463 (2001); John O. Sonsteng et al., A Legal Education Renaissance: A Practical Approach for the Twenty-First Century, 34 Wm. Mitchell L. Rev.

303 (2007); Sophie M. Sparrow, Describing the Ball: Improve Teaching by Using RubricsExplicit Grading Criteria, 2004 Mich. St. L. Rev. 1, 5; Susan E. Thrower, Teaching Legal Writing through Subject-Matter Specialties: A Reconception of Writing Across the Curriculum, 13 Leg. Writing 3 (2007); Christine M. Venter, Analyze This: Using Taxonomies to “Scaffold” Students' Legal Thinking and Writing Skills, 57 Mercer L. Rev. 621 (2006);

Judith Welch Wegner, Reframing Legal Education’s “Wicked Problems”, 61 Rutgers L. Rev.

867, 886 (2009); Catherine L. Carpenter et al., Report of the Outcome Measures Committee 9 (ABA Sec. of Leg. Educ. & Admis. to B. 2008) [hereinafter ABA Report of Outcome Measures Committee]. The entire fall 2010 edition of The Legal Writing Institute’s semiannual newsletter, The Second Draft, was devoted to assessment. See Assessment, 24 Second Draft (Fall 2010).

10. See e.g. Munro, supra n. 9, at 4–5; Carnegie Report, supra n. 9, at 162–184; Curcio, supra n. 9, at 899–900; Schwartz, supra n. 9, at 504.

11. ABA Standards Review Committee, Proposed Guideline 304 (July 2011) (available 2012] Fixing Students' Fixed Mindsets 43 missed fundamental concerns that should precede any discussion about feedback: how will students view it, will they learn from it, and could more feedback actually harm some students. Thus far, proposed changes in law school assessment do not address the crucial problem that precedes any form of assessment—that problem is students’ implicit beliefs about intelligence or, as more popularly called, their mindset.

Diverse fields ranging from athletics to engineering to business have used mindset research to improve performance.12 However, this research has gone largely unnoticed in legal education,13 with legal educators still relatively perplexed when students behave in unsurprising ways. Before any form of assessment can succeed as a useful learning tool, law schools must dive into the deep well of established research to understand what lies beneath students’ responses to feedback. Therefore, before law schools adopt costly changes to curriculum, they should address students’ mindsets and their effects on students’ learning. Furthermore, legal writing professors are in a unique position to assist law schools in this new endeavor. They provide students with critical feedback, memorialized in writing, very early in their law school experience.14 Therefore, the way writing professors approach mindset and feedback have potentially profound effects on at http://www.americanbar.org/groups/legal_education/committees/standards_review.html) [ABA Proposed Guideline 304].

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