Volume 5 Winter 2011 Number 2 - Charleston Law Review

!!!!!!"#$%&'!(!!!!!)*+,'-!./00!!!!!1%&2'-!.General IssueArticlesLearning Styles: What DifferenceDo the Differences Make?Aïda M. AlakaRich Man, Poor Man, Beggar Man,Thief: A History and Critique of theAttorney Billable HourCharles N. GeilichErrors in Judgment or How to GetDebts Discharged in Bankruptcy“(Il)legally”: A Matter of NoticeGloria J. Liddell &Pearson Liddell, Jr.Tax Aspects of Restructuring FinanciallyTroubled Partnerships and LLCs (with aFew Thoughts on Subchapter S Corporations)David NewmanAlternative Justifications for LawSchool Academic Support Programs:Self-Determination Theory, AutonomySupport, and Humanizing the Law SchoolLouis N. Schulze, Jr.

LEARNING STYLES: WHAT DIFFERENCE DOTHE DIFFERENCES MAKE?Aïda M. Alaka*I. INTRODUCTION ............................................................... 134II. LEARNING STYLES: A BRIEF OVERVIEW ................... 138A. A Complex Enterprise ...................................................... 140B. Theoretical Classifications ........................................... 1411. VAKT Theory .......................................................... 1452. Experiential Learning Theory ................................ 1483. Personality Typology .............................................. 150III. CRITICISM OF LEARNING STYLES .............................. 152A. The Validity and Reliability Questions ....................... 1531. Problems with VAKT .............................................. 1562. Limits of Experiential Inventories ......................... 1573. Relationship Between Personality and Learning.. 158B. Problems with the “Matching” Hypothesis ................. 159IV. IMPLICATIONS FOR LEGAL EDUCATION .................. 162V. CONCLUSION .................................................................... 170As the legal academy contemplates education reform, manyscholars are looking to education theory and best practices toguide curriculum and course design. This has resulted in thepublication of several law journal articles discussing differentaspects of learning theory, including learning styles. Broadlyspeaking, “learning styles” have been defined as “those cognitive,affective, and psychological behaviors that indicate how learnersinteract with and respond to the learning environment and howthey perceive, process, store, and recall what they are attemptingto learn.”Most law journal articles on learning styles presume thevalidity of the concept. However, the concept of learning styles is,and always has been, controversial. Many education psychologistsand others involved in researching educational theories are highlycritical of the notion that students possess fixed learning stylesthat teachers must address in order for students to learn. In the133

CHARLESTON LAW REVIEW [Volume 5last few years, two comprehensive literature reviews have beenconducted to assess the theoretical and research bases underlyingthe spectrum of learning style theories. And yet, many in legaleducation think of the existence of learning styles as being settledfact. They also think of them rather narrowly—primarily as aquestion of whether one has a visual, auditory, or kinestheticstyle—although many learning style theories exist.This Article explores the controversy surrounding learningstyles and presents the critical bases for the controversy. Itexplains that most disinterested researchers are particularlyskeptical of the “matching hypothesis”—that is, that one mustteach to specific styles. As the first article to address these issuesin the context of legal education, this Article presents a uniqueperspective for those who seek to enhance teaching and learning inlaw schools.I. INTRODUCTIONThe method and curriculum for teaching and learning lawhave been static and unyielding, but small fissures haveappeared in the pedagogical foundations of legal education.Despite an entrenched resistance to change, 1 developments in thepast few years signal that reform may be on the horizon. At thenational level, the Standards Review Committee of the AmericanBar Association has been promulgating new standards that focuson learning outcomes assessment measures. 2 At the institutional*Associate Professor of Law, Washburn University School of Law, Topeka,Kansas. The author thanks Lisa Wolf-Wendel, Ph.D., Professor, Department ofEducational Leadership and Policy Studies, University of Kansas and MichaelHunter Schwartz, Professor, Washburn University School of Law for theirreviews of and comments on this article. The author also thanks Nikolas J.Stavropoulos for his able research assistance.1. See WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATIONFOR THE PROFESSION OF LAW 18–20, 47–59 (2007). Legal education has been thesubject of several significant studies and criticism since 1914. “Critiques of thelimitations of the case-dialogue method . . . go back to the early twentiethcentury,” yet it remains the dominant form of legal instruction. Id. at 20.2. Standard 302—Learning Outcomes—is available at the ABA’swebsite. ABA STANDARDS FOR THE APPROVAL OF LAW SCHOOLS 302 (ProposedDraftMay5,2010),http://www.abanet.org/legaled/committees/Standards%20Review%20documents/Drafts%20for%20Consideration/Student%20Learning%20Out134

2011] Learning Styleslevel, many law schools are examining the efficacy of thetraditional first-year curriculum and modifying upper-levelcourse offerings to provide students with more opportunity todevelop the personal and professional skills necessary to practicelaw successfully. 3Furthermore, as interest has focused on how to teach and theenvironment in which teaching and learning occur, many whoare concerned about legal education are taking a closer look atindividual classrooms. 4 A heightened interest in matters ofpedagogy has accompanied the recognition that the traditionalcomes%20May%205%202010%20draft.doc (last visited Oct. 22, 2010).3. To empirically assess curricular change, a group of law school faculty isbeginning to work on A Survey of Law School Curricula 2002–2010 with thehope of completing the report in the winter of 2012. Catherine L. Carpenter,Updated Survey of Law School Curricula Is Planned, 41 SYLLABUS 1, 1 (Winter2010). The focus on curricular change acknowledges, at least in part, the call forgraduating lawyers with greater professional and practical skills. SULLIVAN ETAL., supra note 1, at 12–14 (noting the necessity of bridging the traditionallytaught analytical skills to the much needed practical skills). See generally ROYSTUCKEY ET AL., BEST PRACTICES FOR LEGAL EDUCATION: A VISION AND AROAD MAP (2007). According to a 2009 survey that the Institute for LawTeaching and Learning conducted, sixty-one law schools had revisedtheir curriculum in some manner or were contemplating reform. Chartof Legal Education Reform, INST. FOR L. TEACHING & LEARNING(May 2009), available at http://lawteaching.org/publications/ILTLchartoflegaleducationreform200905.pdf.4. The Institute for Law Teaching and Learning, for example, relaunchedin 2009 with the mission of improving the quality of law-school education andsupporting research and the development of materials to enhance teaching andlearning. INST. FOR L. TEACHING &LEARNING, http://lawteaching.org/about/ (lastvisited May 16, 2010). Additionally, some members of the academy arestudying the negative effects of traditional law school education on lawstudents. Their findings have resulted in a call to “humanize” legal educationto produce healthier lawyers. In 2007, the American Association of Law Schoolsapproved the formation of a new Section on Balance in Legal Education andthat year Washburn University School of Law hosted a two-day symposium onhumanizing legal education. The Winter 2007–2008 edition of the WashburnLaw Journal was devoted to scholarship presented at the symposium.Lawrence S. Krieger, Human Nature as a New Guiding Philosophy for LegalEducation and the Profession, 47 WASHBURN L.J. 247, 247–48 (2008); see alsoCarolyn Grose, Educating Lawyers and Best Practices for Legal Education:A Mandate to Humanize the Law School Experience, ALB. L. BLOGS (Jan.13, 2009), http://bestpracticeslegaled.albanylawblogs.org/2009/01/13/educatinglawyers-and-best-practices-for-legal-education-a-mandate-to-humanize-the-lawschool-experience/.135

CHARLESTON LAW REVIEW [Volume 5casebook and Socratic dialogue methods of teaching law mightlimit the ability of students to acquire the necessary skills tofunction in today’s legal environment. 5 Thus, as scholars withinthe legal academy look outside its boundaries for educationtheory and best practices, educational concepts such asmetacognition, 6 transfer of learning, 7 and self-directed learning 8are becoming more commonplace in the legal education lexicon.So, too, is the controversial concept of “learning styles,” whichgenerally speaking has been defined as “those cognitive,affective, and psychological behaviors that indicate how learners5. For example, the fall 2009 edition of Perspectives: Teaching LegalResearch and Writing contains an annotated bibliography on law teaching.Mary Olszewska & Thomas E. Baker, An Annotated Bibliography on LawTeaching, 18 PERSP.: TEACHING LEGAL RES. &WRITING 34 (2009); cf. ArturoLópez Torres & Mary Kay Lundwall, Moving Beyond Langdell II: An AnnotatedBibliography of Current Methods for Law Teaching, 35 GONZ. L.REV. 1 (2000)(containing extensive bibliography on teaching various subjects of law).6. The theory of metacognition, which comes from the field of educationalpsychology, refers to “the self-monitoring by an individual of his own uniquecognitive processes”; that is, “having both awareness and control over one’slearning and thinking.” Anthony S. Niedwiecki, Lawyers and Learning: AMetacognitive Approach to Legal Education, 13 WIDENER L. REV. 33, 35 (2006);see also Robin A. Boyle, Employing Active-Learning Techniques andMetacognition in Law School: Shifting Energy from Professor to Student, 81 U.DET. MERCY L. REV. 1 (2003); John M. A. DiPippa & Martha M. Peters, TheLawyering Process: An Example of Metacognition at Its Best, 10 CLINICAL L.REV. 311 (2004); Paul T. Wangerin, Learning Strategies for Law Students, 52ALB.L.REV. 471 (1988).7. “Transfer of learning” refers to the extent to which one is able totransfer skills and knowledge from one context to another. SARAH LEBERMAN ETAL., THE TRANSFER OF LEARNING: PARTICIPANTS’ PERSPECTIVES OF ADULTEDUCATION AND TRAINING 1 (2006); Michael Hunter Schwartz, Teaching Law byDesign: How Learning Theory and Instructional Design Can Inform and ReformLaw Teaching, 38 SAN DIEGO L. REV. 347, 366 (2001) [hereinafter Schwartz,Teaching Law by Design]. See generally Tonya Kowalski, True North:Navigating for the Transfer of Learning in Legal Education, 34 SEATTLE U. L.REV. (forthcoming 2010); Shirley Lung, The Problem Method: No SimpleSolution, 45 WILLAMETTE L. REV. 723, 740–48 (2009).8. “Self-Regulated Learning . . . is a cycle in which a student activelycontrols her behavior, motivation and thinking process, as she is engaged inacademic tasks.” MICHAEL HUNTER SCHWARTZ, EXPERT LEARNING FOR LAWSTUDENTS 27 (2d ed. 2008) [hereinafter SCHWARTZ, EXPERT LEARNING FOR LAWSTUDENTS]; see also Lung, supra note 7, at 736 (explaining that self-directedstudents “learn to identify gaps in their knowledge within a particular context,to assess their strengths and weaknesses, and to develop, control and adjusttheir own learning agendas accordingly”).136

2011] Learning Stylesinteract with and respond to the learning environment and howthey perceive, process, store, and recall what they are attemptingto learn.” 9This Article introduces some of the controversy surroundinglearning styles and considers the implications for legaleducation. 10 Its aim is to contribute to the discussion regardinglegal education and to raise questions regarding whether lawprofessors should embrace the whole-scale use of learning styleassessments and specific classroom interventions to teach tostudents’ self-reported styles. Part I of this Article offers anintroduction to the diversity of learning style theories, withparticular emphasis on those that appear most frequently inlegal education scholarship. Part II explores the criticismaddressed to learning style theories generally, and to theresearch that purports to suggest a positive correlation betweenteaching to students’ individual learning styles and learningoutcomes. Part III discusses the implications of that criticism forlegal education and examines the extent to which thinking aboutlearning styles can help instructors improve their teaching.9. M. H. Sam Jacobson, A Primer on Learning Styles: Reaching EveryStudent, 25 SEATTLE U. L. REV. 139, 142 (2001) [hereinafter Jacobson, A Primeron Learning Styles]. No single definition of learning styles exists, but theconcept embraces the notion that students have a diversity of predilections orapproaches for learning new material.10. The aim of this Article is not to conduct a comprehensive literaturereview or to produce a treatise on learning style theories; experts in variousfields have already done so. See, e.g., Frank Coffield et al., Should We Be UsingLearning Styles? What Research Has to Say to Practice, LEARNING &SKILLS RES.CENTRE (2004), available at https://crm.lsnlearning.org.uk/user/order.aspx?code=041540 (follow the “Download now” hyperlink; then follow the “Downloadwithout registering” hyperlink) [hereinafter Coffield, Should We Be UsingLearning Styles?] (examining the reliability and validity of thirteen learningstyles models); Frank Coffield et al., Learning Styles and Pedagogy in Post-16Learning: A Systematic and Critical Review, LEARNING &SKILLS RES. CENTRE(2004), available at https://crm.lsnlearning.org.uk/user/order.aspx?code=041543(follow the “Download now” hyperlink; then follow the “Download withoutregistering” hyperlink) [hereinafter Coffield, Learning Styles and Pedagogy inPost-16 Learning] (examining the pedagogical implications for learning stylestheories in higher education); Harold Pashler et al., Learning Styles: Conceptsand Evidence, 9 PSYCHOL. SCI. IN THE PUB. INT. 105 (2009) (analyzing whethereducational practices built around learning styles assessments are supported byscientific evidence); Jacobson, A Primer on Learning Styles, supra note 9(summarizing the main learning style theories).137

CHARLESTON LAW REVIEW [Volume 5II. LEARNING STYLES: A BRIEF OVERVIEWAs law professors strive to teach more effectively and toenhance their students’ ability to learn, discussion has focused onthe notion that they must understand and teach to theirstudents’ learning styles. Thus, just as some groups within thelegal profession are exploring the social, cultural, and economicmilieu of today’s law students, 11 some are also focusing onwhether intrinsic differences dictate how individual studentslearn. Indeed, many within the legal academy appear to haveembraced the notion that such differences exist and the parallelnotion that law school educators should discover and teach tothese learning styles. 1211. See, e.g., Joan Catherine Bohl, Generations X and Y in Law School:Practical Strategies for Teaching the “MTV/Google” Generation, 54 LOY.L.REV.775 (2008) (exploring the technological experiences of today’s law students andstrategies for incorporating those experiences into meaningful classroomdynamics); Gerald F. Hess, Listening to Our Students: Obstructing andEnhancing Learning in Law School, 31 U.S.F. L. REV. 941 (1997) (exploring howdiverse law students perceive their law school learning experiences); Alice K.Dueker, Diversity and Learning: Imagining a Pedagogy of Difference, 19 N.Y.U.REV. L.&SOC. CHANGE 101 (1991–1992); Joanne Ingham & Robin A. Boyle,Generation X in Law School: How These Law Students are Different from ThoseWho Teach Them, 56 J. LEGAL EDUC. 281 (2006) (presenting the results of amulti-year study of law students’ and law faculty’s learning styles); 18 THESECOND DRAFT: BULL. OF THE LEGAL WRITING INST. (Dec. 2003) (containingseveral articles devoted to teaching the current generation of law students).12. See generally Robin A. Boyle & Rita Dunn, Teaching Law StudentsThrough Individual Learning Styles, 62 ALB. L.REV. 213 (1998) [hereinafterBoyle & Dunn, Teaching Law Students] (noting the burgeoning interest inlearning styles in legal education); Robin Boyle, Jeffrey Minneti & AndreaHonigsfeld, Law Students Are Different from the General Population: EmpiricalFindings Regarding Learning Styles, 17 PERSP.: TEACHING LEGAL RES. &WRITING 153 (2009); Eric A. DeGroff & Kathleen A. McKee, Learning LikeLawyers: Addressing the Differences in Law Student Learning Styles, 2006 BYUEDUC. &L.J. 499 (2006); Jacobson, A Primer on Learning Styles, supra note 9;M. H. Sam Jacobson, Learning Styles and Lawyering: Using Learning Theory toOrganize Thinking and Writing, 2 J. ASS’N LEGAL WRITING DIRECTORS 27 (Fall2004); M. H. Sam Jacobson, How Law Students Absorb Information:Determining Modality in Learning Style, 8 LEGAL WRITING: J. LEGAL WRITINGINST. 175 (2002) [hereinafter Jacobson, How Law Students Absorb Information];Eileen B. Cohen, Teaching Legal Research to a Diverse Student Body, 85 LAWLIBR. J. 583 (1993); 22 THE SECOND DRAFT: BULL. OF THE LEGAL WRITING INST.(Spring 2008) (containing articles focused on “teaching to different learningstyles”).138

2011] Learning StylesThe concept of learning styles is broader than the recognitionthat tools of education have changed or that the current lawstudent population is more diverse than ever before: “The term‘learning styles’ refers to the concept that individuals differ inregard to what mode of instruction or study is most effective forthem.” 13 Radically different theories exist regarding how andwhy this occurs, which is one of the problems noted by critics.Some theorists suggest that learning styles are linked toneurological differences in the way people process information,while others maintain that they are linked to preferences forlearning related to prior experiences. 14 The latter draw uponclassic educational or psychological thinkers such as John Deweyand Carl Jung, while the former are often linked to assumptionsabout the role of such basic senses as seeing, hearing, andtouching in relation to learning. 15 These distinct theoreticalorientations are manifest in the lack of consistency acrossmodels. 1613. Pashler et al., supra note 10, at 105.14. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 23.15. See generally Coffield, Should We Be Using Learning Styles?, supranote 10, at 22 (classifying various learning styles theories); Jacobson, A Primeron Learning Styles, supra note 9, at 150–73 (examining the theoretical bases forseveral learning styles models). See also DAVID KOLB, EXPERIENTIAL LEARNING:EXPERIENCE AS THE SOURCE OF LEARNING AND DEVELOPMENT (1984) (examiningthe process of experiential learning based on research in psychology,philosophy, and physiology); RITA DUNN &KENNETH DUNN, TEACHING STUDENTSTHROUGH THEIR INDIVIDUAL LEARNING STYLES: APRACTICAL APPROACH (RestonPubl’g Co. 1978) (examining how cognitive experiences contribute to individuallearning styles); Walter L. Leite et al., Attempted Validation of the Scores of theVARK: Learning Styles Inventory with Multitrait–Multimethod ConfirmatoryFactor Analysis Models, 70 EDUC. AND PSYCHOL. MEASUREMENT 323 (2010)(examining the dimensionality of the VARK learning styles inventory).16. According to a leading proponent of one learning styles theory and itscorrelative assessment instruments, the reason so many learning styles theoriesexist is because “[d]ifferent pioneers recognized individual differences based ontheir particular experiences, named the characteristics they observed, anddescribed them in nomenclature that made sense to them.” Rita Dunn, RitaDunn Answers Questions on Learning Styles, 48 EDUC. LEADERSHIP 15, 15 (Oct.1990).139

CHARLESTON LAW REVIEW [Volume 5A. A Complex EnterpriseComplicating any study of learning styles is the fact that thelearning styles field is divided into three interconnected arenas ofactivity: “theoretical, pedagogical, and commercial.” 17 Thetheoretical activity is linked to empirical research and hasresulted in an array of learning style models and a plethora ofinstruments designed to test individual learning styles. 18 Thepedagogical activity involves the research into teaching andlearning that has been conducted across the disciplines of“psychology, . . . sociology, business studies, management andeducation.” 19 Finally, the field of learning styles is associatedwith a lucrative commercial enterprise. 20 The interrelatedness ofthe theoretical, pedagogical, and commercial facets exacerbatesthe problem of trying to impose order on this diverse—evenconfusing—field.At the outset, one must understand that many of the sameindividuals or organizations that market products relating tolearning styles are conducting much of the research supportingtheir learning style theories, measurement instruments, andstudies of intervention. Thus, learning style theorists are notcompletely disinterested from the commercial enterprises thathave emerged from their theories. 21 Rather, “the learning-styles17. Coffield, Should We Be Using Learning Styles?, supra note 10, at 2.18. Id.19. Id.20. Id.21. Associated with the field of learning styles is a “thriving set ofcommercial activities.” Pashler et al., supra note 10, at 106. One component ofthis activity is focused on publishing books and articles on learning styles,driven in part by the abundance of theories on the subject. Although a simpleweb search will produce learning style instruments that one can complete forfree, the other significant hub of activity centers on the “publishing and sellingof [learning style] measurement.” Id. For example, the Hay Group, which toutsitself as a “global management consulting firm that works with leaders totransform strategy into reality,” offers a variety of products designed to assessleadership, management, coaching styles, and personal values. See HAY GROUP,http://www.haygroup.com/au/about/index.aspx?ID=12253 (last visited Oct.22, 2010). The Hay Group’s Assessment and Development Tools catalogueis available online. Assessment and Development Tools, HAY GROUP,http://www.haygroup.com/Downloads/au/misc/Hay_Group_catalogue_2009_aunz_standard_res.pdf(last visited Oct. 22, 2010). It also markets Kolb’s Learning140

2011] Learning Stylesidea is actively promoted by vendors offering many differenttests, assessment devices, and online technologies to helpeducators identify their students’ learning styles and adapt theirinstructional approaches accordingly . . . .” 22 Despite thecommercial success of many of these products, disinterestedresearchers have long postulated that they lack scientific validityand provide scant benefit in the classroom. 23B. Theoretical ClassificationsThe adoption of the learning styles concept in legal educationpresumes the validity of learning style theories. Thispresumption is not entirely misplaced. The idea that differentstudents learn in different ways and, thus, have differentlearning styles has been studied for at least forty years 24 and hasenjoyed widespread popularity in education and beyond. 25 Whatmany in the legal academy might not understand, however, isStyle Inventory (LSI), the Boyatzis-Kolb Adaptive Style Inventory (ASI), andthe Boyatzis-Kolb Learning Skills Profile (LSP). Id. “Based on ExperientialLearning Theory, the LSI identifies your preferred learning style and helps youthink through the implications for: how you solve problems[,] how youcommunicate with others—at work or at home[, and] consider[s] a career thatfits your preferences.” Id. The LSI sells ten questionnaires and ten workbooksfor $175.00. Id. The ASI “[i]dentifies and develops people’s flexibilityin how they use their learning styles” and sells groups of tenassessments for $110.00. Products, HAY GROUP, http://www.haygroup.com/leadershipandtalentondemand/Products/Kolb_learning.aspx (last visited Oct.22, 2010). The LSP is an online tool, which “[h]elps your employees to assessthe match between their personal learning skills and their job demands.” Id.22. Pashler et al., supra note 10, at 106; see also Coffield, Should We BeUsing Learning Styles?, supra note 10, at 63 (noting that “fortunes are beingmade” in the development of learning styles associated products).23. See, e.g., Joel B. Stellwagen, A Challenge to the Learning StyleAdvocates, 74 CLEARING HOUSE 265, 267 (2001) (examining the disparitybetween the purported benefits of teaching to learning styles and the actualresearch results); Lynn Curry, A Critique of the Research on Learning Styles, 48EDUC. LEADERSHIP 50, 50 (1990); Walter Doyle & Barry Rutherford, ClassroomResearch on Matching Learning and Teaching Styles, 23 THEORY INTO PRAC. 20,24 (1984) (concluding that research is inadequate to support “the popularrhetoric of matching learning and teaching styles”).24. See, e.g., Coffield, Should We Be Using Learning Styles?, supra note 10,at 1.25. Pashler et al., supra note 10, at 106.141

CHARLESTON LAW REVIEW [Volume 5that the notion of learning styles has been, and continues to be,controversial within the research community. In fact, as noted inSection II, most independent research studies have been criticalof the concept, and no unanimity exists that educators shouldattempt to teach to students’ individual learning styles.Three key assumptions underlie the learning styles research,though not every model emphasizes the last:People differ consistently from each other in theirpreferences (e.g. emotional, environmental) for . . . waysof processing information (the “individual differences”assumption).These individual differences are measurable (the“measurement” assumption).Matching or mismatching students’ learning styles withinstructional techniques affects learning significantly (the“matching hypothesis”).26That different factors influence how any individual learns isundisputed. For example, individuals may possess differentspecific abilities, such as “verbal comprehension, word fluency,number facility, . . . and reasoning [skills].” 27 Prior learning canalso affect learning in specific contexts. 28 Beyond these learningdimensions, however, significant questions have arisen regardingwhether reliable data support the notion that individuals possessfixed styles that govern their ability to learn.That learning preferences exist is also perhaps undisputed;when asked, students will articulate preferences for variousmeans of “taking in new information and studying.” 29 Moreover,“questionnaires focusing on preferences have at least somepsychometric reliability”—individuals’ “score[s] on one daypredict[] their score[s] on another day.” 30 However, research does26. Aidan Moran, What Can Learning Styles Research Learn fromCognitive Psychology?, 11 EDUC.PSYCHOL.239, 240 (1991).27. Pashler et al., supra note 10, at 11011.28. Moran, supra note 26, at 242.29. Pashler et al., supra note 10, at 108.30. Id. But see Steven A. Stahl, Different Strokes for Different Folks? ACritique of Learning Styles, AM. EDUCATOR, Fall 1999, at 1, 4 (noting that the142

2011] Learning Stylesnot support the notion that assessing these preferences isnecessary to provide optimal instruction. In fact, much researchsuggests otherwise. 31Because people are different, the idea of individualizeddifferences in learning styles has intuitive appeal. 32 There is nosingle agreed-upon theory about what those differences are,however. A 2004 review of the research on learning stylesidentified seventy-one different models or theories of learningstyles. 33 This project, which examined in detail the thirteen mostinfluential models, 34 resulted in two comprehensive reports: onethat systematically and critically assessed the validity,reliability, and practical application of the individual models, 35and a second that explored the implications of the research forteaching and identified an agenda for further research (theCoffield Study). 36The Coffield Study found that most of the seventy-one modelscould be generally categorized within five “families” along acontinuum, with little agreement among them. 37 The overarchingreliability measures for the Dunn and Dunn and Myers-Briggs assessments arelower than one would expect from a diagnostic based on self-reporting).31. See, e.g., Myron H. Dembo & Keith Howard, Advice About the Use ofLearning Styles: A Major Myth in Education, 37 J. C. READING AND LEARNING101, 105–07 (2007) (discussing contrary research).32. Doyle & Rutherford, supra note 23, at 20; Stahl, supra note 30, at 1.33. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 1.34. After an exhaustive literature review, the authors chose to evaluateparticular theorists and studies based on whether (1) “The texts were widelyquoted and regarded as central to the field as a whole”; (2) “The learning stylesmodel was based on an explicit theory”; (3)“The publications wererepresentative of the literature and of the total range of models available ([e.g.]experiential, cognitive and brain dominance)”; (4) “The theory has [been] . . .productive . . . [and has led] to further research”; and (5) “Theinstrument/questionnaire/inventory” that measures the learning style “has beenwidely used by practitioners—teachers, tutors or managers.” Coffield, ShouldWe Be Using Learning Styles?, supra note 10, at 17.35. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 9, Figure 4.36. Coffield, Should We Be Using Learning Styles?, supra note 10, at 58.37. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 3, 1011. The authors acknowledged that the groupings were imperfectbecause the theoretical approaches were sometimes difficult to define. Id. at 10.Theorists from each family were chosen for in-depth study, which included,143

CHARLESTON LAW REVIEW [Volume 5theories articulated within these families are: (1) “Learningstyles and preferences are largely constitutionally based,including the four modalities,” which are commonly known by theacronym “VAKT,” or visual, auditory, kinesthetic, tactile; (2)“Learning styles reflect deep-seated features of the cognitivestructure, including ‘patterns of ability’”; (3) “Learning styles areone component of a relatively stable personality type”; (4)“Learning styles are flexibly stable learning preferences”; and (5)There are different “learning approaches, strategies, orientationsand conceptions of learning.” 38 Although some might talk ofa singular learning “style,” the fact is that learningstyle proponents promote conceptually different, and oftencontradictory, definitive “styles,” which may depend onsuch characteristics as individual “intelligence, personality,information processing mechanisms, social interaction needs, andinstructional preferences,” only some of which are amenable tochange. 39Of the thirteen models thoroughly examined in the CoffieldStudy, only a few appear to have an identifiable presence in thescholarship of legal education. These include the Dunn andDunn learning styles model, 40 the Kolb Learning Style Inventory(LSI), 41 and the Myers-Brigg Type Indicator, 42 although othersamong other things, in-depth analysis of the origins and influence of thetheories, analysis of the learning style instruments associated with the theories,evaluation of the reliability and validity of the measurements, implications forpedagogy, and empirical evidence for pedagogical impact. Id. at 11.38. Id. at 9, Figure 4.39. Jacobson, A Primer on Learning Styles, supra note 9, at 146 (citingCHARLES CLAXTON &PATRICIA MURRELL, LEARNING STYLES: IMPLICATIONS FORIMPROVING EDUCATIONAL PROCESSES 7 (1987)); see also Vernellia R. Randall, TheMyers-Briggs Type Indicator, First Year Law Students and Performance, 26CUMB. L. REV. 63, 7075 (1995) (summarizing the factors that influencelearning according to different learning theories); Jacobson, How Law StudentsAbsorb Information, supra note 12, at 176 (noting that “learning styles aredetermined by many things, some of which may not be very susceptible tochange, some of which may not be readily assessable, and some of which maynot be particularly relevant to the problems the student may be having inlearning law and legal analysis”).40. See, e.g., Boyle & Dunn, Teaching Law Students, supra note 12; Boyle,Minneti & Honigsfeld, supra note 12.41. See Steven Hartwell, Six Easy Pieces: Teaching Experientially, 41 SANDIEGO L. REV. 1011 (2004) (applying Kolb’s Experiential Learning model to the144

2011] Learning Styleshave been discussed. 43 For that reason, this Article will brieflyreview these three frameworks, each of which falls within adifferent learning style family. Whereas the Dunn and Dunnmodel conceives of learning styles and preferences as“constitutionally based,” 44 the Myers-Briggs theory views them as“one component of a relatively stable personality type.” 45 Kolb,on the other hand, views learning styles as “flexibly stablelearning preferences.” 46 Criticism of the theoretical bases oflearning styles, including the Dunn and Dunn, Kolb, and Myers-Briggs models, has focused on the research upon which thetheories are based. 471. VAKT Theorylaw clinic experience). In DeGroff & McKee, supra note 12, the authorsinvestigated whether the learning styles and learning modes of law students, asmeasured by Kolb’s Learning Styles Inventory, correlated with their analyticalskills, as measured by the LSAT, and their academic achievement during theirfirst year. They also investigated whether learning styles varied according tosuch factors as gender or ethnicity.42. Randall, supra note 39, at 75–77; M. H. Sam Jacobson, Using theMyers-Briggs Type Indicator to Assess Learning Style: Type or Stereotype?, 33WILLAMETTE L. REV. 261, 262–69 (1997) [hereinafter Jacobson, Using the Myers-Briggs Type Indicator].43. Jacobson, A Primer on Learning Styles, supra note 9, at 146(summarizing learning theories according to personal characteristics, such asintelligence, personality, and information processing); Jacobson, Using theMyers-Briggs Type Indicator, supra note 42, at 301–13 (rejecting the Myers-Briggs Type Indicator as a learning styles assessment tool in favor of PeterHoney’s and Alan Mumford’s Learning Styles questionnaire, which is derivedfrom Kolb’s Experiential Learning model).44. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 9, Figure 4.45. Id.46. Id.47. See, e.g., Curry, supra note 23, at 50; Stahl, supra note 30, at 2; see alsoinfra notes 104 and 138.145

CHARLESTON LAW REVIEW [Volume 5The Dunn and Dunn model, 48 with which many legaleducators have at least a glancing familiarity, investigatesstudents’ self-reported preferences for learning according toenvironmental, emotional, sociological, and physiologicalvariables. 49 Environmental variables include factors such assound, temperature, light, and seating design. 50 Emotionalvariables include motivation, persistence, and the need forstructure. 51 Sociological variables include preferences for workingalone or with peers or with authoritative or collegial adults. 52Although physiological variables include preferences for time ofday, mobility, and eating and drinking, it is perhaps the modalitypreferences that are most familiar—that is, whether individualsreport a preference for visual, auditory, kinesthetic, or tactilelearning. 53The latter idea is often referred to as VAKT or VAK, and itsessential premise is that learners differ with respect to basicsensory preferences and environmental stimuli. VAKT theorysuggests that there is a biological foundation to the self-identifiedpreferences that learners specify on various learning style48. The model was developed by the husband and wife team of KennethDunn and Rita Dunn. Dr. Kenneth Dunn received his doctorate inAdministration of Schools Systems from Columbia University and is a long-timeprofessor at City University of New York. See Curriculum Vitae of Kenneth J.Dunn, QUEENS C. OF THE CITY U. OF N.Y. INDEX OF FAC. CURRICULUM VITAE(2008), http://qcpages.qc.edu/ECP/FVitae/dunnvitae08.pdf. Dr. Rita Dunntaught at St. John’s University for over 40 years before her death in August2009. See Rita Dunn’s Obituary, N.Y. TIMES, Aug. 7–8, 2009 available athttp://www.legacy.com/obituaries/nytimes/obituary.aspx?page=lifestory&pid=131050944. Information about the Dunn and Dunn Learning Styles theory andcorrelated assessment instruments may be found at http://www.learningstyles.net/ (last visited Oct. 22, 2010).49. See Coffield, Learning Styles and Pedagogy in Post-16 Learning, supranote 10, at 22, Table 3; see also Boyle, Minneti & Honigsfeld, supra note 12, at157 (citing RITA DUNN & KENNETH DUNN, THE COMPLETE GUIDE TO THELEARNING STYLES INSERVICE SYSTEM 34 (1999)).50. See Coffield, Learning Styles and Pedagogy in Post-16 Learning, supranote 10, at 22, Table 3.51. Id.52. Id.53. Id. For a study of law students’ learning styles based on the Dunn andDunn model, see Boyle, Minneti & Honigsfeld, supra note 12.146

2011] Learning Stylesinstruments, 54 although its scientific research foundation hasbeen extensively critiqued. 55The Dunns are leading proponents of the theory thatteachers should teach to their students’ learning styles.According to the Dunn and Dunn model, “three-fifths of learningstyle is biologically imposed[;] . . . students with strongpreferences for specific learning style conditions/environments/approaches cannot flex . . . .” 56 Thus, teachers should assess thelearning styles of the students they teach and “teach them theway they learn.” 57 To assist teachers in that endeavor, the “Dunnand Dunn Learning-Style Model has spawned several diagnosticinstruments to identify learning style—the first was introducedin 1974.” 58 These assessments purport to “measure the patternsthrough which learning occurs in individual students; theysummarize the environmental, emotional, sociological,physiological, and global/analytic processing preferences that astudent has for learning.” 59 Although assessments measuretwenty-six variables, which are subdivided into six stimulusstrands, individuals are purportedly affected by six to fourteenelements. Those six to fourteen elements alone comprise anindividual’s learning style. 60It is important to note that the Dunns are neither medicalnor psychological researchers, but rather professional educators.They have focused the bulk of their work on development ofclassroom-based applications of various learning style theories54. See id.; see also Learning Styles: Online Learning Style Assessments& Community, http://www.learningstyles.net/en/about-us (last visited Oct. 22,2010).55. See Part II infra.56. Rita Dunn, Rita Dunn Answers Questions on Learning Styles, 48 EDUC.LEADERSHIP 15, 15–16 (Oct. 1990).57. Id. at 18.58. The Dunn and Dunn Learning-Styles Resource Brochure currentlyoffers for sale five diagnostic instruments, twenty-three publications, several“Contract Activity Packages,” and additional resources for students andteachers, including CDs, videos, and workshops. The brochure is available athttp://www.learningstyles.net (last visited Oct. 22, 2010).59. Pashler et al., supra note 10, at 107.60. Boyle, Minneti & Honigsfeld, supra note 12, at 157 (2009) (citing RITADUNN & KENNETH DUNN, THE COMPLETE GUIDE TO THE LEARNING STYLESINSERVICE SYSTEM 34 (1999)).147

CHARLESTON LAW REVIEW [Volume 5and assessment of student outcomes at different levels of theeducational system, including law schools. 61 Interestingly,despite its apparent acceptance in some law school circles, 62 theDunn and Dunn model has very little influence in highereducation generally.2. Experiential Learning TheoryDavid Kolb’s 63 experiential learning theory, upon which hebases his learning styles model, posits that learning occurs in “afour-stage cycle involving four adaptive learning modes—concrete experience, reflective observation, abstractconceptualization, and active experimentation.” 64 In his scheme,“concrete experience/abstract conceptualization and activeexperimentation/reflective observation are two distinctdimensions, each representing two dialectically opposed adaptiveorientations.” 65 Higher learning, and the acquisitionof knowledge, requires both grasping and transformingexperiences. 66 One’s heredity, past life experiences, andsocialization through family, education, and occupationalexperiences shape a person’s learning style preferences. 67Kolb’s theory does not have a major biological component, butinstead presents learning styles as continually subject to changeand development, depending upon circumstances and theconscious efforts of the learner. 68 Rather than suggest that61. Dunn and Dunn assessments are designed for different age groups.See http://www.learningstyles.net/en/our-assessments (last visited Oct. 22,2010). The “BE” or “Building Excellence” Survey is designed for individualsaged seventeen and above. See id.62. See Boyle, Minneti & Honigsfeld, supra note 12, at 156; Boyle & Dunn,supra note 12, at 223.63. David Kolb received his Ph.D. in social psychology from HarvardUniversity. He is a long-time faculty member at Case Western ReserveUniversity’s Weatherhead School of Management. See http://learningfromexperience.com/media/2010/08/David-Kolb-curriculum-vitae-2009.pdf.64. KOLB, supra note 15, at 40.65. Id. at 40–41.66. Id. at 26–29, 41.67. Id. at 76–77.68. Id. at 206; see also Coffield, Learning Styles and Pedagogy in Post-16Learning, supra note 10, at 64.148

2011] Learning Styleseducators simply adjust instruction to accommodate variouslearning styles, Kolb suggests that learners also should learn toadapt their preferences in order to succeed in a wide variety ofcircumstances. 69 In Kolb’s view, “[l]earning is the processwhereby knowledge is created through the transformation ofexperience.” 70Unlike the Dunns’ model, Kolb’s work has had relativelylittle impact on elementary and secondary education; hisinfluence has principally been felt in adult and corporateeducation. 71 Kolb’s LSI sorts learners into four categories linkedto his conceptualization of the “learning cycle” based onquestionnaires with fewer than twenty forced-choice answers. 72He argues that “convergers” prefer abstract conceptualizationand active experimentation, making practical applications ofideas; “divergers” value concrete experience and reflectiveobservation, generating ideas and alternative perspectives;“assimilators” like abstract conceptualization and reflectiveobservation, creating theoretical models with inductivereasoning; and “accommodators” like concrete experience andactive experimentation, doing things instead of studyingproblems. 73Proponents of Kolb’s assessment instrument suggest that itidentifies one’s cognitive learning preferences. 74 They also notethat academic exercises based on Kolb’s theory of experiential69. KOLB, supra note 15, at 200–02.70. Id. at 38.71. For example, via his website, Dr. Kolb offers workshops on experientiallearning to human resource and occupational design professionals as well astrainers and educators. See EXPERIENCE BASED LEARNING SYSTEMS, INC.,http://www.learningfromexperience.com (last visited Oct. 22, 2010). Moreover,one of his assessment instruments—the Learning Skills Profile—is specificallydesigned for occupational purposes. Tools, EXPERIENCE BASED LEARNINGSYSTEMS, http://www.learningfromexperience.com/tools (last visited Oct. 22,2010).72. See Coffield, Learning Styles and Pedagogy in Post-16 Learning, supranote 10, at 65.73. KOLB, supra note 15, at 77–78; see also Coffield, Learning Styles andPedagogy in Post-16 Learning, supra note 10, at 62–63.74. See DeGroff & McKee, supra note 12, at 517 (using Kolb’s LSI to“assess relationships among learning styles, LSAT scores, and law school GPAs”because the LSI specifically assesses cognitive “learning preferences”).149

CHARLESTON LAW REVIEW [Volume 5learning create and sustain interest in learning. 75 BecauseKolb’s learning styles are relatively stable but not fixed,awareness of individual learning styles presumably can helplearners to self-consciously expand their capacity to acquireknowledge and skills. 763. Personality TypologyWhile not linked to a theory of learning styles per se, theMyers-Briggs Type Indicator (MBTI) 77 is often used as a way ofcategorizing students with respect to preferences rather thantraits, abilities, or characters. 78 Its principal objective is to helpindividuals identify critical elements of their personalities. 79 TheMyers-Briggs typology model regards personality type as largelyinherent within individuals, including certain preferred ways ofthinking and acting. 80 The MBTI psychological differences divideinto four opposite pairs, or dichotomies, to create sixteen possiblepsychological types. The sixteen types are typically referred to75. See Hartwell, supra note 41, at 1032.76. But see Panayiota Metallidou & Maria Platsidou, Kolb’s LearningStyles Inventory—1985: Validity Issues and Relations with MetacognitiveKnowledge About Problem-Solving Strategies, 18 LEARNING AND INDIVIDUALDIFFERENCES 114, 114 (2008) (finding few significant correlations betweenlearning modes and metacognitive knowledge in problem solving strategies andcritiquing the construct validity of Kolb’s LSI).77. Developed by Isabel Briggs Myers and her mother Katherine Briggs,the purpose of the MBTI is to “make the theory of psychological types describedby C. G. Jung understandable and useful in people’s lives.” MYERS &BRIGGSFOUND., http://www.myersbriggs.org/my-mbti-personality-type/mbti-basics (lastvisited Oct. 22, 2010).78. Id.79. Id. Personalities are classified by individual preferences for “favoriteworld,” “information,” “decisions,” and “structure.” Id.80. Id. The measure of “extraversion” or “introversion” categorizesindividuals with respect to their preference for focusing on the “outer world” ortheir own “inner world”; the measure of “sensing” or “intuition” categorizesindividuals with respect to their preference for focusing on basic information orinterpreting and adding meaning to that information; the measure of “thinking”or “feeling” categorizes individuals with respect to their preference for focusingon logic and consistency or people and special circumstances; and the measureof “judging” or “perceiving” categorizes individuals with respect to theirpreference for “get[ting] things decided” or “stay[ing] open to new informationand options.” Id.150

2011] Learning Stylesby an abbreviation of four letters—the initial letters of each oftheir four type preferences. 81Of particular interest to educators, Myers-Briggs postulatesthat all people obtain and process information in distinctiveways. Some are seen as “sensing,” preferring evidence to“intuition,” while others prefer abstract ideas to concreteinformation. 82 Similarly, people process information differently,with some preferring “thinking” and others “feeling” in the waythey approach problems and resolve dilemmas. 83As the foregoing suggests, the MBTI would appear to havevery broad applicability in any number of educational settings. 84More widely used in adult and post-secondary education than inelementary and secondary schools, like Kolb’s LSI, it too is oftenseen as a self-diagnostic tool for learners interested in improvingtheir capacity to perform in a wide range of circumstances.According to one proponent of using the MBTI in law schools:Legal educators could use the MBTI to help students maximizethe learning experience by: (1) helping them to understand how81. See The 16 MBTI Types, MYERS & BRIGGS FOUND.,http://www.myersbriggs.org/my-mbti-personality-type/mbti-basics/the-16-mbtitypes.asp(last visited Oct. 22, 2010). For example, individuals who are “ISTJ,”or “I”/introverted, “S”/sensing, “T”/thinking, and “J”/judging, are “[q]uiet,serious, earn success by thoroughness and dependability. Practical, matter-offact,realistic, and responsible. Decide logically what should be done and worktoward it steadily, regardless of distractions. Take pleasure in makingeverything orderly and organized—their work, their home, their life. Valuetraditions and loyalty.” Id.82. MYERS &BRIGGS FOUND., supra note 77.83. See id. However, the MBTI has been criticized as an ineffectivemeasure of learning styles with a propensity to stereotype. See, e.g., Jacobson,Using the Myers-Briggs Type Indicator, supra note 42, at 262.84. In a study to “explore the relationship between learning style andperformance” at the University of Dayton School of Law, the author tested allentering law students with the MBTI. Randall, supra note 39, at 70. Theauthor found that students the MBTI classified as I/Introverted, N/intuitive,T/thinking, and J/judging (INTJ) “may have a relative, if not significant,advantage” in law school. Id. at 102. According to the Myers-Briggsclassification scheme INTJ individuals “[h]ave original minds and great drivefor implementing their ideas and achieving their goals. Quickly see patterns inexternal events and develop long-range explanatory perspectives. Whencommitted, organize a job and carry it through. Skeptical and independent,have high standards of competence and performance—for themselves andothers.” The 16 MBTI Types, supra note 81.151

CHARLESTON LAW REVIEW [Volume 5they learn best; (2) by helping them to understand how thelearning environment differs from their preferred learningmodes; and (3) by helping to determine activities and behaviorsto maximize their learning, notwithstanding any learning styledifferences. 85There is a small body of research on matching MBTI resultsfor teachers and students in higher education settings, but thereis very little suggesting that instructors should shiftinstructional styles of modalities to suit students with differingpersonality types. 86III. CRITICISM OF LEARNING STYLESDespite the popularity and intuitive appeal of learning styles,researchers have questioned the use of learning styles for wellover twenty years. 87 Among the questions explored byresearchers have been whether (1) learning styles instrumentsare valid and reliable; (2) students benefit when teachers try toteach to the students’ preferred learning styles; and (3) evidencesupports the notion “that understanding one’s learning styleimproves concentration, memory, self-confidence, and reducesanxiety, and leads to better grades.” 88 Much of the researchsuggests that the answers to all of these questions is “no,”because the instruments fail to “measure anything in particular,”are unreliable, and lack empirical evidence that their use has apositive pedagogical impact on learning. 89 These deficiencieshave led some to declare: “Learning styles don’t exist.” 9085. Randall, supra note 39, at 103.86. Others have noted that the MBTI is a deficient measure of learningstyle because it measures personality type, not cognitive style. See, e.g.,Jacobson, Using the Myers-Briggs Type Indicator, supra note 42, at 301.87. Dembo & Howard, supra note 31, at 101.88. Id. at 102.89. Id. at 103–05; see also Jacobson, Using the Myers-Briggs TypeIndicator, supra note 42, at 270 (noting concerns regarding the MBTI’s accuracyin grouping people, measuring what it claims to measure, and reliability inmeasuring what it does measure).90. For example, Daniel T. Willingham, a cognitive psychologist andprofessor at the University of Virginia, who has served on the editorial boardsof the Journal of Experimental Psychology: Human Perception and152

2011] Learning StylesA. The Validity and Reliability QuestionsEducators, cognitive psychologists, sociologists, and expertson professional development have conducted and publishedextensive analyses of the research foundation for learning styles.Much of this analysis has concluded that there is a lack ofscientifically valid inquiry to support the underlying bases for theindividual learning style theories and the related propositionsthat teaching intervention is necessary to teach to students’styles. They have also found that the associated instrumentslack reliability and validity. 91Critics of learning styles research acknowledge the “facevalidity,” or common-sense appeal, of some of the diagnosticinstruments. In other words, many learning styles theoriesattract support because they appeal “to the intuitive sense ofwhat ‘feels right.’” 92 They note, however, that the “forced-choicequestionnaires” common to learning styles instruments may notmeasure “anything in particular” or, worse, may measure“something completely different from what one intends toPerformance, Journal of Experimental Psychology: Learning, Memory, andCognition, and Behavioral and Cognitive Neuroscience Reviews, among others,has posted a video on YouTube titled “Learning Styles Don’t Exist.” dbw8m,Learning Styles Don’t Exist, YOUTUBE (Aug. 21, 2008), http://www.youtube.com/watch?v=sIv9rz2NTUk. The video briefly explores the appeal of learning stylestheory, and, focusing specifically on VAK, explains the fallacy of the theory. Id.His curriculum vitae and a link to his video may be found on his website,http://www.danielwillingham.com (last visited Oct. 22, 2010).91. “An instrument has validity if it measures what it claims to measure,”whereas “[a]n instrument is reliable if it produces the same result whenmeasuring the same thing.” Jacobson, Using the Myers-Briggs Type Indicator,supra note 42, at 280, 293; see also Vicki E. Snider, Learning Styles andLearning to Read: A Critique, 13 REMEDIAL AND SPECIAL EDUC. 6 (1992)(critiquing the application of learning styles in teaching students withdisabilities to read because, among other factors, learning styles are difficult toassess and there is a lack of convincing research to support the theories);Timothy J. Sewall, The Measurement of Learning Style: A Critique of FourAssessment Tools (1986) (examining the psychometric qualities of four learningstyles instruments, including the Kolb LSI and the Myers-Briggs TypeIndicator) available at http://eric.ed.gov/ERICWebPortal/search/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED267247&ERICExtSearch_SearchType_0=no&accno=ED267247.92. Dembo & Howard, supra note 31, at 103.153

CHARLESTON LAW REVIEW [Volume 5measure.” 93The root of the criticism is that the learning styles research isnot based on an experimental methodology that has scientificallyvalidated the application of theory to actual performance. In onerecent study, the Pashler Study, four cognitive psychologistswere “commissioned by Psychological Science in the PublicInterest to assess, as dispassionately as [they] could, the scientificevidence underlying practical application of learning-styleassessment in school contexts” by first determining whatevidence would be necessary to justify basing pedagogicalmethods on students’ learning styles, and then reviewing theliterature to determine if the evidence existed. 94The Pashler Study identified several criteria that theresearch needed to satisfy to be judged scientifically valid: First,learners should have been subdivided into groups by “learningstyle”; second, learners within each style group should have beenrandomly assigned at least two different learning methods; third,learners must have been given the same test for achievement;fourth, the test results would demonstrate that “the learningmethod that optimizes test performance [of] one learning-stylegroup is different than the learning method that optimizes thetest performance of a second learning-style group.” 95According to the Pashler Study, support for teachinginterventions based on learning styles required a crossoverinteraction between the learning style and teaching method, suchthat the method that proved most effective for one group was notthe same that proved most effective for another. 96 If the samelearning method optimized the test performance of both kinds oflearners, the result would militate against the need to customize93. Id. at 10304. For example, in some forced-choice learning stylesquestionnaires, nearly all takers choose the same answers: “Nearly everybodywould prefer a demonstration in a science class to an uninterrupted lecture.”Id. at 103. The critics explain that, though the choice could indicate that therespondents were “visual learners,” “if most respondents choose the sameanswer, then it does not really measure anything in particular except, perhaps,the ability to read the question.” Id.94. Pashler et al., supra note 10, at 106.95. Id. at 109.96. Id. at 10910.154

2011] Learning Stylesinstruction.After viewing the “vast” literature on learning styles, thePashler Study could identify only one research study that cameclose to meeting their research criteria and supporting thelearning styles theory. 97 That study’s findings were “less thancompelling,” however. 98 Although that 1999 research studyreported style-by-treatment interactions, the Pashler Studydetected serious methodological deficiencies. 99 Moreover, even ifthe methodological deficiencies were discounted, the studyprovided weak support for any of the learning style interventionscurrently marketed; the instructional interventions in the studydid not appear to match the most widely promoted and commonlyused learning styles interventions. 100The Pashler and Coffield studies, 101 which appear to beamong the most recent and comprehensive reviews of learningstyles research, are clearly not alone in finding a paucity ofscientifically valid support for learning styles theories. 102Spurred by the apparent dichotomy between the popularity of theconcept among education administrators and the shunning of itamong education researchers, one author was surprised by theconsistently negative findings of the research community. 103 Hisreview of research conducted in the 1990s revealed that“psychometric experts indeed had strong reservations aboutusing many of the popular learning style inventories,” including97. The study involved “gifted and talented” high school students whocompleted the “Sternberg Triarchic Abilities Test,” which rated the students’analytical, creative, and practical abilities. Id. at 111.98. Id.99. Though the study found style-by-treatment interactions (learning stylematched instructional method), outliers were excluded from the results, theresults were obtained using highly derived measures, and only one-third of thestudy’s subjects were classified in groups that produced the interactions. Id. at112.100. Thus, the study does not support interventions based on the Dunn andDunn, Kolb, or MBTI learning styles theories. Id. at 11112.101. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10; Coffield, Should We Be Using Learning Styles?, supra note 10.102. See, e.g., Moran, supra note 26 (noting the lack of valid research andthe atheoretical lack of conceptual rigor in the learning styles field); see also,e.g., references and accompanying discussion supra at notes 23, 30, & 76.103. Stellwagen, supra note 23, at 265.155

CHARLESTON LAW REVIEW [Volume 5the Dunn and Dunn and MBTI instruments. 104 Indeed, the Dunnand Dunn LSI has been called a “psychometric disaster.” 105Each model has its proponents, however, and each claims tohave scientifically valid research supporting their learning stylestheories and the instruments they market to test students’learning styles. 106 Because of the apparent popularity of theDunn and Dunn instruments, Kolb’s LSI, and the MBTI in legaleducation, this Article will briefly explore disinterestedassessments of those models. 1071. Problems with VAKTDespite its popularity, the Dunn and Dunn model has beendescribed as uniquely “anti-intellectual” because its “chiefprotagonist, Rita Dunn,” appears to believe that it is “incapableof being falsified” and that detractors of the model are somehow“immoral.” 108 Among its strengths, however, is the fact that itaffirms the learning potential of all students—particularly ifteachers cater to the students’ learning preferences. 109 It alsoencourages teachers to respect differences among students and touse a range of teaching methods and assessments, but “does notstigmatise [sic] different types of preferences.” 110On the other hand, the notion that learning stylesare essentially “biologically and developmentally imposed”characteristics 111 has been attacked as lacking sufficient104. Id. at 266.105. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 28.106. Each of their web sites advertise their products as validated throughresearch. See supra notes 48, 71, & 77.107. For detailed information regarding the Dunn and Dunn model, theresearch that supports and contradicts it, and its strengths and weaknesses, seeCoffield, Learning Styles and Pedagogy in Post-16 Learning, supra note 10, at1215, 2035. For the same information regarding Kolb’s model, see id. at 61–70 and for the same information regarding Myers-Briggs, see id. at 4752. TheCoffield Study also has an extensive bibliography and cites the research uponwhich its conclusions are based.108. Id. at 34 (internal quotation marks omitted).109. Id. at 32.110. Id. at 21, 33.111. Id. at 12 (internal quotation marks omitted).156

2011] Learning Stylesscientific foundation for the reasons discussed above. What isparticularly noteworthy is the absence of independent evaluationof the Dunn and Dunn model: According to the Coffield Study,Rita Dunn “reject[ed] . . . any evaluations that [were] ‘third party’and therefore carried out by people ‘uncertified and untrained inthe model.’” 112 For example, Professor Dunn rejected a negativemeta-analysis of the research purporting to support modalitypreferences because it excluded certain studies favorable to theLSI. The studies had been excluded because they were so“inadequate . . . [their] data were essentially meaningless,” whichresulted in only two of the Dunns’ studies being included in themeta-analysis. 113 It has been noted that much of the scholarshipsupporting the Dunn and Dunn model is comprised ofunpublished doctoral dissertations, undertaken particularlyunder the auspices of the St. John’s University center that RitaDunn directed. 1142. Limits of Experiential InventoriesKolb is credited with producing the first systematic andcomprehensive account of experiential learning, which, thoughrooted in the philosophies of others, has been described as“original and significant.” 115 As the Coffield Study noted, learningstyles under Kolb’s model are both flexible and static because hisexperiential learning theory recognizes the prospect for growthand development. 116 Among the strengths of his model is thenotion that students’ learning skills may improve with conscious112. Id. at 28 (quoting Rita Dunn, The Dunn & Dunn Learning Style Model:Theoretical Cornerstone, Research and Practical Applications, in BRIDGINGTHEORY AND PRACTICE 37 (S. Armstrong et al. eds., 2003)).113. Id. at 24 (internal quotation marks omitted); see also Kenneth A.Kavale & Gretchen B. LeFever, Dunn and Dunn Model of Learning-StylePreferences: Critique of the Lovelace Meta-Analysis, 101 J. EDUC. RES. 94 (2007)(criticizing the results of a meta-analysis that purported to support the Dunnand Dunn model).114. See Kavale & LeFever, supra note 113, at 9697. For an early critiqueof the Dunn and Dunn model, see Leonard Davidman, Learning Style: TheMyth, the Panacea, the Wisdom, 62 PHI DELTA KAPPAN 641, 642–44 (1981).115. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 63.116. Id. at 70.157

CHARLESTON LAW REVIEW [Volume 5reflection about learning. 117Kolb’s concept of learning styles, which is tied to his theory ofthe learning cycle, has had a significant impact on education andmanagement training. 118 Although he has modified his LSI overthe years, it too has been criticized as being invalid andunreliable. 119 It is noteworthy that his instrument categorizesstudents based on their choice of four possible words to completeeach of just twelve sentences. 120 Moreover, studies providecontradictory support for the proposition that different learningstyles responded differently to different instructional methods. 121The experimental evidence needed to fully support his theories islacking and, despite its relatively long history, “[p]roblems aboutreliability, validity and the learning cycle continue to dog [Kolb’s]model.” 1223. Relationship Between Personality and LearningLike the Dunn and Dunn and Kolb assessment instruments,the MBTI uses a forced-choice instrument to acquire informationfrom individuals. 123 Although it is generally accepted to befacially valid, with caveats, the construct validity of the MBTIhas been questioned. 124 Because it purports to assess personalityrather than cognitive controls or behavior specifically related tolearning, it is often excluded from learning styles studies. 125However, the MBTI has had a significant academic impact and ispopular in training and consulting, medicine, business,117. Id.118. Id. at 60.119. Id. at 6566.120. See id. at 64. For example, students are asked to complete the sentence“I learn best from” by ranking the following choices: “rational theories,”“personal relationships,” “a chance to try out and practice,” and “observation.”Students’ choices purportedly indicate their “preference for one pole or the otherof the two dialectics, conceptualizing/experiencing . . . and acting/reflecting.” Id.121. Id. at 6869.122. Id. at 70.123. MYERS &BRIGGS FOUND., supra note 77.124. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 48.125. Id.158

2011] Learning Stylesmanagement, and religious communities as a tool for both careerdevelopment and management. 126 It is often used in careercounseling and has been used to “steer students into ‘appropriate’areas of study” according to their personality type. 127According to the research review undertaken by the CoffieldStudy, much of the analytical and empirical studies related to theMBTI have been “uncritical and unreflective.” 128 The researchfoundation for its use as an accurate measure of learning styleand as an aid in teaching and learning is “inconclusive, at best,”and it remains unclear which components of the sixteenpersonality types are most germane for education. 129 Moreover,the Coffield team was troubled by the fact that the instrument,which was designed as a tool for greater self-awareness, “isincreasingly used by institutions to assess suitability, strengthsand weaknesses.” 130 This is notwithstanding the fact that acorrelation between personality type and performance has notbeen demonstrated in scientific studies. 131B. Problems with the “Matching” HypothesisSome, though not all, proponents of learning style theoriessuggest that teaching and learning are optimized when teachersand students identify students’ learning styles and whenteachers learn to teach to the many learning styles that might bepresent in their classrooms. 132 Given the bewildering array oflearning styles theories and measurement tools, teachers mightwell wonder how to teach to the seemingly unlimited learning126. Id. at 47.127. Id. at 51.128. Id.129. Id.130. Id.131. Id. But see Mary O. Borg & Stephen L. Shapiro, Personality Type andStudent Performance in Principles of Economics, 27 J. ECON. EDUC. 3, 3–4(1996) (correlating learning styles, teaching styles, and the MBTI in the studyof economics).132. Among the myriad benefits for students is that understanding learningstyles purportedly lets students “see new perspectives and increases theirtolerance for each other’s differences.” Pat Jaouen, Fostering Students’Awareness of Learning Styles, 48 EDUC.LEADERSHIP 14, 14 (Oct. 1990).159

CHARLESTON LAW REVIEW [Volume 5styles present in their classrooms. Moreover, a “teacher must . . .decide which dimension of learner style to consider important.” 133Thus, the question regarding styles is: “What difference do thedifferences make? In other words, which differences amonglearners have consequences for the outcomes of instruction?” 134The consensus of disinterested research is that “matching”teaching style to learning styles is not the panacea thateducators might hope for. Analyses of learning styles studieshave found little to no empirical support for the popular notionthat matching instructional materials to learning styles has apositive pedagogical effect. 135 As one research reviewerconcluded, “[t]he reason researchers roll their eyes at learningstyles is the utter failure to find that assessing children’slearning styles and matching to instructional methods has anyeffect on their learning.” 136Scholarly reviews from the 1970s and 1980s found that“basing instructional adaptations on student preferences does notimprove learning and may be detrimental”; that “cognitivesimilarities between students and teachers affect[] classroominteractions but [do] not influence achievement”; and either weakor non-existent support for the notion of matching modalitypreferences with teaching methods—in fact, some researchpointed to the effectiveness of teaching to the non-preferredmodality. 137 The more recent studies have confirmed thesefindings. 138133. Doyle & Rutherford, supra note 23, at 21.134. Id. at 22.135. In a summary of five research reviews dating to the late 1970sregarding the correlation between modality preferences and learning to read,one author concluded that “[o]ne cannot reliably measure children’s readingstyles and even if one could, matching children to reading programs by learningstyles does not improve their learning.” Stahl, supra note 30, at 2. Regardingthe research basis for one particular theorist’s articles, the author noted thatonly one was published, fifteen were doctoral dissertations, thirteen of whichcame from the theorist’s alma mater, and none of them had been published inpeer-reviewed journals. Id.136. Id. at 1.137. Doyle & Rutherford, supra note 23, at 22 (internal quotations omitted).138. See Coffield, Should We Be Using Learning Styles?, supra note 10, at3940 (reporting on a study that found the number of studies supporting thematching hypothesis was virtually the same as those that did not and noting160

2011] Learning StylesAlthough the Pashler Study found only tenuous support forthe notion that students benefit from style-specific teachinginterventions, 139 it found more support for the contraryconclusion. Several methodologically sound research studiesfailed to demonstrate a correlation between performance andinstructional methods based on reported modality preferences.The Pashler Study authors did not suggest that these negativefindings definitively refuted the learning styles hypothesis; theydid determine, however, that “these negative results, inconjunction with the virtual absence of positive findings, [ledthem] to conclude that any application of learning styles inclassrooms is unwarranted.” 140While the Pashler Study found the learning styles researchlacking scientific validity and support for the learning styleshypothesis, it did find greater, albeit imperfect, support for othergroup-by-treatment interactions. For example, a crossoverinteraction was observed in studies linking student aptitude anddegree of structured teaching; students with lower ability faredbetter when teaching methodologies were more structured andguided. 141 Similarly, there was some sound support for thenotion that students who believed they controlled their success orfailure performed better when their instruction was lessguided. 142Kolb, Myers-Briggs, and their proponents are less stridentregarding the benefits of matching, or style-by-treatmentinteractions, in education than Dunn and Dunn. Thus, thecriticism about the value of their models for education might alsobe less strident. Like the Pashler Study, however, the CoffieldStudy cautioned against the pedagogical use of any of these threemodels. 143 This is particularly important for those educatorsthat methodological issues are frequently present in the studies supporting aparticular theory).139. See generally Pashler et al., supra note 10 (summarizing the researchresults in the learning styles field).140. Pashler et al., supra note 10, at 112.141. Id. at 11315.142. Id. at 11516.143. For more information regarding the Coffield Study’s assessment of thepedagogical impact of the Dunn and Dunn model, see Coffield, Learning Styles161

CHARLESTON LAW REVIEW [Volume 5flirting with the use of the Dunn and Dunn instruments in theirclassrooms. As others have argued about the Dunn and Dunnmodel:The Learning Styles Based Education paradigm calls forthe teacher to focus on the student’s learning style whendeciding how to teach. This call is misleading . . . . Teaching isnot a dyadic relationship between teacher and student . . . [but]a triadic relationship made up of three critical and constantelements: teacher, student and subject matter.144In other words, the subject being taught or the topic beingaddressed in a classroom, or other educational setting, may bejust as important to the learning process as the experience,preferences, or capacities of the student. Different subjects andtopics, after all, may demand quite distinct teaching strategies,regardless of student abilities. This is a dimension of theteaching and learning process that VAK-based learning styletheories seem to overlook. 145IV. IMPLICATIONS FOR LEGAL EDUCATIONPerhaps because of their intuitive appeal, and the recognitionthat the Socratic Method is insufficient to teach the full spectrumof legal skills, learning styles theories have gained traction inlegal education. In light of the criticism aimed at legal educationand its over-reliance on the Socratic Method, 146 the import ofand Pedagogy in Post-16 Learning, supra note 10, at 3036; for its assessmentof Kolb, see id. at 6671; for its assessment of the MBTI, see id. at 5052.144. Id. at 29 (quoting Ronald Hyman & Barbara Rosoff, 23 Theory inPractice 35, 38 (1984)).145. See, e.g., Laura J. Massa & Richard E. Mayer, Testing the ATIHypothesis: Should Multimedia Instruction Accommodate Verbalizer-VisualizerCognitive Style?, 16 LEARNING AND INDIVIDUAL DIFFERENCES 321, 333–34 (2006)(finding little support for the “attribute-treatment interaction” hypothesis thatverbal and visual learners should be provided different kinds of multimediainstruction).146. See generally SULLIVAN ET AL., supra note 1; STUCKEY ET AL., supra note3; Michael Hunter Schwartz, Humanizing Legal Education: An Introduction toa Symposium Whose Time Came, 47 WASHBURN L.J. 235 (2008); Benjamin V.Madison, III, The Elephant in Law School Classrooms: Overuse of the SocraticMethod as an Obstacle to Teaching Modern Law Students, 85 U. DET. MERCY L.REV. 293 (2008); Paul Bateman, Toward Diversity in Teaching Methods in Law162

2011] Learning Stylesmany teaching and learning theories into the legal academy is apositive development. This is especially true when it is tied toindividual self-critical assessment of one’s teaching methods andthe search for creative alternatives. At the same time, it isimportant to understand that not all education theories,although popular in some circles, are accepted by the largerresearch community.Awareness of the learning styles controversy is important fora number of reasons. First, it means that law professors neednot develop lesson plans that target the spectrum of students’self-reported preferences. Such a goal would be unrealistic, inany event. Aside from the sheer number of possible learningstyles present in any given classroom, 147 little guidance existsregarding which learning styles “represent superficial, transientor whimsical reactions, and which represent deep-seatedcognitive preferences.” 148 As one cognitive psychologist asked:“[O]n what theoretical basis can a preference for eating ‘a snackas I study’ be equated in importance with a person’s emotionalreasons for learning something?” 149 Moreover, factors such asstudent and teacher ability, prior learning, relationship betweenteacher and student, task clarity, feedback, opportunities topractice, environmental conditions, 150 and dynamics within theclassroom affect how teachers teach and how students learn, 151Schools: Five Suggestions from the Back Row, 17 QUINNIPIAC L. REV. 397 (1997).147. As the Coffield Study observed, “[i]t is hard to imagine teachersroutinely changing their teaching style to accommodate up to 30 differentlearning styles in each classroom, or even to accommodate four . . . ; orresponding to the interactions among the 22 elements in the learning stylemake-up of each student in the Dunn and Dunn approach . . . .” Coffield, ShouldWe Be Using Learning Styles?, supra note 10, at 40; see also Doyle &Rutherford, supra note 23, at 21 (noting that the Dunn and Dunn LSI“generates virtually thousands of possible combinations for matching learningand teaching styles” and asking “[w]here does a teacher stop in the pursuit ofdiversity?”).148. Moran, supra note 26, at 241.149. Id. (internal citation omitted).150. Doyle & Rutherford, supra note 23, at 22; see also Schwartz, TeachingLaw by Design, supra note 7 (discussing the many factors relevant to effectivecourse design).151. See generally Walter Doyle, Classroom Effects, 18 THEORY INTOPRACTICE 138 (1979).163

CHARLESTON LAW REVIEW [Volume 5and they should be taken into consideration when designing acourse or curriculum.Additionally, law students need to develop all modalities tobe effective practitioners. To that end, teachers might even needto disabuse students of the notion that they cannot learn asubject or skill unless their learning preferences are taken intoaccount, and they might also have to guard against allowingstudents to skirt academic demands by catering to thosepreferences. 152 Some research suggests that individuals haveerroneous beliefs about their own learning processes, whichcause them to engage in inefficacious teaching and learningbehaviors. 153 That is not to say that learning disabilities andother individual differences that could impede particularstudents’ learning should not be appropriately accommodated, 154or that all students will benefit equally from the same teachingmethod in all circumstances. 155Beyond their dubious value as a guide for course design, theuse of learning styles assessments creates the possibility of152. See generally Davidman, supra note 114 (criticizing the Dunn andDunn approach for, among other things, failing to encourage teachers to explorethe meaning behind assessment results and for elevating students’ likes anddislikes above all else).153. See Pashler et al., supra note 10, at 117. For example, one studentrecently told this author that, because she is a “visual learner,” she does notlearn from reading text. Not only did she misunderstand the concept, but shemay have been setting the stage for failure. See infra note 170 andaccompanying text.154. See generally Jennifer Jolly-Ryan, Disabilities to Exceptional Abilities:Law Students with Disabilities, Nontraditional Learners, and the Law Teacheras a Learner, 6 NEV. L.J. 116 (2006); Alexis Anderson & Norah Wylie, Beyondthe ADA: How Clinics Can Assist Law Students with “Non-Visible” DisabilitiesTo Bridge The Accommodations Gap Between Classroom and Practice, 15CLINICAL L. REV. 1 (2008); Leah M. Christensen, Law Students Who LearnDifferently: A Narrative Case Study of Three Law Students with AttentionDeficit Disorder (ADD), 21 J.L. & HEALTH 45 (2008); Beverly Petersen Jennison,When Learning Styles Are Different: Suggestions for Teaching Law Studentswith Attention Deficit Disorder, 18 PERSP.: TEACHING LEGAL RES. AND WRITING97 (2010); Leah M. Christensen, Legal Reading and Success in Law School: TheReading Strategies of Law Students with Attention Deficit Disorder (ADD), 12SCHOLAR 173 (2010).155. See Coffield, Should We Be Using Learning Styles?, supra note 10, at44 (noting that traditional instructional methods fail many students, whichmight explain the popularity of the learning styles hypothesis).164

2011] Learning Stylespigeonholing students into a particular style, which could inhibitlearning and development. 156 Students and their teachers runthe risk—consciously or unconsciously—of creating artificialexpectations or limits regarding a particular student’s ability tolearn. 157 Rather than providing students with a ready excuse forwhy they “can’t” learn material, law teachers should insteadendeavor to assist students in taking control of their learning,whatever the environment or circumstances. 158Moreover, classroom effectiveness may depend more ondesigning course activities around the particular subject matterbeing taught. Just as different disciplines emphasize differentinstructional methods, so too might the optimal pedagogicalmethod vary across the multitude of courses within the lawschool curriculum. 159 Consideration of such matters as the skill-156. See Doyle & Rutherford, supra note 23, at 23 (noting that researchregarding how teachers handle classroom heterogeneity “indicate[s] thatdifferentiated instruction often leads to substantial differences in curriculumacross groups”).157. See Jacobson, Using the Myers-Briggs Type Indicator, supra note 42, at27080 (discussing the danger of stereotyping inherent in the MBTI). Thedanger of categorizing students may be compounded as law classrooms becomediverse. The Equal Justice Society is collaborating with the California TeachersAssociation to study the role of unconscious bias in the classroom. Research incognitive psychology suggests “that we all engage in a cognitive process called‘categorization’ to simplify and streamline how we perceive others (e.g., sex,race, or age). This process can lead to stereotype application that influences ourthoughts and behaviors towards members of certain groups.” Keith Kamisugi,EJS Co-Presents Unconscious Bias Panel at Writer’s Guild in LA, Introductionby Norman Lear, EQUAL JUSTICE SOCIETY (July 22, 2009), http://www.equaljusticesociety.org/2009/07/unconsciousbias-panel-wga/.158. In Expert Learning for Law Students, the author introduces students tothe primary methods of legal instruction and to teaching and learning theory toguide students in becoming effective self-regulated learners. In the section onlearning styles, the author suggests that certain learning style preferencesmight positively or negatively influence a student’s approach to many commonlaw school learning activities. The author does not suggest, however, thatstudents cannot learn the law if their “styles” are not catered to. SCHWARTZ,EXPERT LEARNING FOR LAW STUDENTS, supra note 8, at Chapter 6.159. The Pashler Study pointed out that the optimal instructional methodin a writing course might differ from that in a geometry course. While thewriting course might have a heavy verbal emphasis, the geometry course mighthave a heavier visual-spatial emphasis. See Pashler et al., supra note 10, at116. For a bibliography of teaching methodologies correlated with particularsubject matter, see Torres & Lundwall, supra note 5 (compiling a bibliography165

CHARLESTON LAW REVIEW [Volume 5acquisition goals of the course, course enrollment, difficultiesrelating to the “transfer” of skills and knowledge, and the prioreducational experiences of one’s students is also appropriate. 160Moreover, research suggests that utilizing multiple teachingtools, like visuals and physical objects, has instructional valuegenerally and is not necessarily linked to a particular style. 161 Inthe end, the purported learning style differences present in lawschool classrooms might make less of a difference to learningoutcomes than the purveyors of learning styles instrumentsmight lead one to believe.As noted in the Coffield Study:The popular appeal of the notion that since many peoplefind it hard to concentrate on a spoken presentation for morethan a few minutes, the presenters should use other forms ofinput to convey complex concepts does not mean that it ispossible to use bodily movements and the sense of touch toconvey the same material. Certainly there is value incombining text and graphics and in using video clips in manykinds of teaching and learning, but decisions about the formsin which meaning is represented are probably best made withall learners and the nature of the subject in mind, rather thantrying to devise methods to suit vaguely expressed individualpreferences. 162When considering reform, whether of an individual lawschool course or of the entire curriculum, a critical considerationis that:The lawyer of the next century will need to be able to diagnoseand analyze problems, to talk to and listen to people, toof articles describing specific pedagogical methods in forty-six categories).160. Pashler et al., supra note 10, at 117. See generally Schwartz, TeachingLaw by Design, supra note 7.161. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 13; see also Hillary Burgess, Deepening the Discourse Using the LegalMind’s Eye: Lessons from Neuroscience and Psychology That Optimize LawSchool Learning, 28 QUINNIPIAC L. REV. (forthcoming 2010) (available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1586113) (discussing theimportance of multimodal teaching methods, particularly visual aids, in lawschool teaching).162. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 13.166

2011] Learning Stylesfacilitate conversations, to negotiate effectively, to resolvedisputes, to understand and present complex material, to useever-changing technologies, to plan, to evaluate both economicand emotional components and consequences of humandecision-making, and to be creative—to use tried and truemethods when they are appropriate, but not to fear new andcategory-smashing ideas or solutions.163Thus, regardless of whether one is, in Kolb’s terms, a“converger” or “diverger,” or an “assimilator” or “accommodator,”lawyers must be able to think abstractly and use inductive anddeductive reasoning. Lawyers must also develop the skill toidentify how abstract principles can influence concrete actions.Truly, critical analysis, planning, and decision making are the“conceptual foundations” for many of the practical skills a lawyermust possess to be effective. 164Similarly, regardless of whether one self-identifies asa visual, auditory, kinesthetic, or tactile learner, lawyersregularly use each of those modalities in practice. They processinformation by reading and synthesizing legal authority anddocuments obtained during discovery, for example, and act onoral directives from clients, judges, and colleagues. Asprofessional writers, lawyers create myriad types of documents,including those that reflect their analysis of the law, theirunderstanding of clients’ goals, and their informed strategicchoices. Although personality might ultimately determine alawyer’s career choices and, thus, the frequency with which sheengages in particular activities, lawyers need to develop theability to obtain and use information across the spectrum ofidentified modalities. 165 The multi-faceted nature of lawyering163. STUCKEY ET AL., supra note 3, at 15 (quoting Carrie Menkel-Meadow,Taking Problem-Solving Pedagogy Seriously: A Response to the AttorneyGeneral, 49 J. LEGAL EDUC. 14, 14 (1999)).164. Id. (quoting Anthony G. Amsterdam, Clinical Education-Modes ofThinking, in A DIALOGUE ABOUT LEGAL EDUCATION AS IT APPROACHES THE 21STCENTURY 12 (1987)).165. According to David Kolb, studies show that while students “entercollege with predominant preferences for some learning styles over others, theyshow equal preferences for the four styles two years later.” KOLB, supra note15, at 206. He notes that “alumnae report having to learn in a variety of modesat work, and being able to adapt to continued and unguided learning situations167

CHARLESTON LAW REVIEW [Volume 5suggests that law teachers should stress the importance ofadaptability in learning rather than suggesting the supremacy ofone modality preference or another.As some of the research suggests, working against one’spreference might be more advantageous in particularcircumstances. 166 Certain learning styles proponents advocatedeliberately “mismatching” instructional methods and learningstyles to alleviate boredom and to allow students to experiencenew or unfamiliar learning styles. 167 David Kolb recommendsmismatching for realizing one of the goals of curriculum design—namely growth and creativity. He wrote:In addition to specialized developmental training, teachersoften have objectives concerning the growth and creativity oftheir students. In making students more “well-rounded,” theaim is to develop the weaknesses in the students’ learning styleto stimulate growth in their ability to learn from a variety oflearning perspectives. . . . The aim is to make the student selfrenewingand self-directed; to focus on integrative developmentwhere the person is highly developed in each of the fourlearning modes: active, reflective, abstract, and concrete. Herethe student is taught to experience the tension and conflictamong these orientations, for it is from the resolution of thesetensions that creativity springs.168Certainly, mastering law requires students to learn in each ofKolb’s modes. 169 However, recent empirical studies suggest thatdeveloping law students’ critical reading skills and literacy areparamount to successful law school performance. 170 Regardlessin a variety of settings.” Id. (citation omitted).166. See supra text accompanying note 135.167. Coffield, Should We Be Using Learning Styles?, supra note 10, at4142.168. KOLB, supra note 15, at 203.169. See generally SCHWARTZ, EXPERT LEARNING FOR LAW STUDENTS, supranote 8 (guiding students through the development of active and reflectivelearning techniques to master the abstract and concrete skills required foreffective performance); Schwartz, Teaching Law by Design, supra note 7 at 365–83 (guiding law teachers in course development and design to engage studentsfrom the syllabus to the final exam).170. See generally Dorothy H. Evensen et al., Developing an Assessment of168

2011] Learning Stylesof desire or preference, law students should understand thatlearning through reading is, and is likely to remain, the principlemethod by which they will absorb new information in law schooland beyond.On the other hand, if learning style assessments are used toassist students in becoming aware of their own learning andstudying practices, they have a role in legal education. 171Students should be cognizant of their approaches to learning sothat they can make adjustments to these practices whennecessary. 172 Although study habits that influence self-reportedlearning styles might optimize learning in a particular student’scase, the opposite is also possible. 173 In some cases, a studentmight learn more from working in a group despite his or herpreference for working alone. 174 In fact, although one study oflaw students’ learning styles reported that law students are lessFirst-Year Law Students’ Critical Case Reading and Reasoning Ability: Phase 2,LSAC RES. REP. SERIES (March 2008), available at http://www.lsacnet.org/LSACResources/Research/GR/GR-08-02.pdf; Leah M. Christensen, LegalReading and Success in Law School: An Empirical Study, 30 SEATTLE U. L. REV.603 (2007); Laurel Currie Oates, Leveling the Playing Field: Helping Students toSucceed by Helping Them Learn to Read as Expert Lawyers, 80 ST. JOHN’S L.REV. 227 (2006); Debra Moss Curtis & Judith R. Karp, “In a Case, in a Book,They Will Not Take a Second Look!” Critical Reading in the Legal WritingClassroom, 41 WILLAMETTE L. REV. 293 (2005).171. Although some scholars question whether metacognitive benefitsderive from knowing one’s learning style, the Coffield Study conceived of thepossibility they could. See Coffield, Should We Be Using Learning Styles?,supra note 10.172. See generally Kristina L. Niedringhaus, Teaching Better ResearchSkills by Teaching Metacognitive Ability, 18 PERSP.: TEACHING LEGAL RES. ANDWRITING 113 (2010) (discussing the importance of including metacognition inlegal education); Robin A. Boyle, Employing Active-Learning Techniques andMetacognition in Law School: Shifting Energy from Professor to Student, 81 U.DET. MERCY L. REV. 1 (2003) (discussing various active learning andmetacognition techniques for classroom use); Filippa Marullo Anzalone, It AllBegins with You: Improving Law School Learning Through Professional Self-Awareness and Critical Reflection, 24 HAMLINE L. REV. 325, 327 (2001)(discussing the “need to think . . . about the learning style differences of lawprofessors, and the resultant differences in teaching styles.”).173. See Coffield, Should We Be Using Learning Styles?, supra note 10, at50 (noting that instructors can guide students in developing effective studyhabits rather than require students to learn them through “trial and error”).174. Similarly, an individual’s learning style “preference” for late-nightstudy sessions over pizza does not necessarily make it the most advantageous.169

CHARLESTON LAW REVIEW [Volume 5likely to learn in small groups or teams than independently ascompared with the general student population, 175 some authorshave stressed the importance of cooperative learning experiencesin law school. 176V. CONCLUSIONIn a profession like law, which affords and demands life-longlearning, students need to acquire conscious and self-directedlearning methods to develop their talents and overcome theirweaknesses. 177 They must be open to considering new ways oflearning. Thus, if learning style assessments are presented as away to measure preferences or habits rather than immutable“styles,” they could assist law students in recognizing thestrengths and weaknesses in how they approach their legalstudies. This is particularly true if the identified “styles” areproperly contextualized; that is, if students understand the manyways in which critical information will be presented to them overthe course of their careers. For example, the importance ofcritical reading skills can be stressed for students who identify as“auditory” learners.Additionally, judging from the scholarship, those whoconsider law student learning styles appear to be at the forefrontof the movement away from empty mimicry of the traditionalcasebook method and Socratic Method. Although those methodshave certain pedagogical benefits, 178 the case has been made thatthey are not enough. By considering the diversity of learners intheir classroom, law faculties are developing creative and activeexercises designed to enhance the acquisition of critical legal175. Boyle, Minneti & Honigsfed, supra note 12, at 158–59.176. STUCKEY ET AL., supra note 3, at 88-89.177. Id. at 122–23. The metacognitive approach enables “learners to choosethe most appropriate learning strategy from a wide range of options to fit theparticular task in hand; but it remains an unanswered question as to how farlearning styles need to be incorporated into metacognitive approaches.” Coffield,Should We Be Using Learning Styles?, supra note 10, at 50.178. The use of evolving hypotheticals fosters analytical skills and assistsstudents in transferring legal principles learned in one factual setting toanother, for example.170

2011] Learning Stylesskills. Thus, students are learning to create contracts, ratherthan simply read about them, in their first year, 179 and they arebeing exposed to greater visual 180 and tactile stimuli as lawteachers employ multi-modal teaching techniques. 181 All lawstudents, regardless of their preferences, can benefit from thissort of attention to teaching, and concerns about student learningmay well lead to a re-evaluation of curricular goals, assessmenttools, teaching methods, and course relevance. 182 The use of avariety of teaching methods is more likely to develop the differentskills lawyers regularly use than any single method.Moreover, the focus on learning theory generally, as well aslearning styles specifically, enhances the professional skills oflaw school faculty who had no background in education theorybefore joining the academy. While the scientific basis of learningstyle assessments may be weak, there can be broadly heuristicvalue in considering the range of learning preferences in a lawschool class. The more that law students are exposed to activeteaching techniques, the more likely they are to be engaged intheir classrooms. By looking outside the narrow confines of thelegal academy, scholars are discovering and writing aboutpotential solutions to the problems they perceive in their179. See, e.g., Deborah A. Schmedemann, Finding a Happy Medium:Teaching Contract Creation in the First Year, 5 J. ASS’N LEGAL WRITINGDIRECTORS 177 (2008).180. See, e.g., Fred Galves, Will Video Kill the Radio Star? Visual Learningand the Use of Display Technology in the Law School Classroom, 2004 U. ILL.J.L. TECH. & POL’Y 195 (2004); Kristin B. Gerdy et al., Expanding OurClassroom Walls: Enhancing Teaching and Learning Through Technology, 11 J.LEGAL WRITING INST. 263 (2005); Karen L. Koch, “What Did I Just Do?” UsingStudent-Created Concept Maps or Flowcharts to Add a Reflective VisualComponent to Legal Research Assignments, 18 PERSP.: TEACHING LEGAL RES.AND WRITING 119 (2010).181. For an interesting and creative lesson plan designed to appeal tostudents’ learning styles preferences, see Jeffrey J. Minneti & Catherine J.Cameron, Teaching Every Student: A Demonstration Lesson That AdaptsInstruction to Students’ Learning Styles, 17 PERSP.: TEACHING LEGAL RES. &WRITING 161 (2009). The goal of the class session “was to assist students inwriting effective topic sentences for case description and argument paragraphs”in a first-year legal writing class. Id. at 161.182. Coffield, Learning Styles and Pedagogy in Post-16 Learning, supra note10, at 133.171

CHARLESTON LAW REVIEW [Volume 5classrooms. 183 Certainly, the volume of scholarship devoted topedagogy bodes well for the advancement of legal education.While the learning styles-matching hypothesis and theefficacy of learning style assessments have been sharplydisputed, recognizing the diversity of learners in the law schoolclassroom is beneficial. This is especially true as law schools aimfor inclusiveness and diversity within the student, staff, andfaculty populations. 184 Consideration of learning preferences canprovoke more creativity in legal education as educators grapplewith finding the optimal method for teaching within thediscipline. Students’ purported learning preferences are simplyone dimension of the diversity of factors that influence learning.183. See, e.g., Christine N. Coughlin et al., See One, Do One, Teach One:Dissecting the Use of Medical Education’s Signature Pedagogy in the LawSchool Curriculum, 26 GA. ST. U. L. REV. 361 (2010); Douglas K. Rush &Suzanne J. Schmitz, Universal Instructional Design: Engaging the Whole Class,19 WIDENER L.J. 183 (2009); Larry O. Natt Gantt, II, Deconstructing ThinkingLike a Lawyer: Analyzing the Cognitive Components of the Analytical Mind, 29CAMPBELL L. REV. 413 (2007).184. Prompted by the ABA Presidential Initiative Commission on Diversity,the ABA recently released its report and recommendations for increasingdiversity across the profession. See generally American Bar Association,Presidential Diversity Initiative, Diversity in the Legal Profession: TheNext Steps (2010), available at http://new.abanet.org/centers/diversity/PublicDocuments/Next%20steps%20Final-virtual%20Accessible%20042010.pdf;Gail S. Stephenson & Linda C. Fowler, Keeping It Real: Developing a Culturallyand Personally Relevant Legal Writing Curriculum, 10 J. GENDER RACE & JUST.67 (2006) (arguing for the consideration of diversity factors in course design).172

RICH MAN, POOR MAN, BEGGAR MAN, THIEF:A HISTORY AND CRITIQUE OF THEATTORNEY BILLABLE HOURCharles N. Geilich *I. THE BEGINNING OF TIME (-BASED BILLING) .......... 173II. TIME IS MONEY, IF BILLED PROPERLY ..................... 178III. WHAT HAPPENS TO TIME IN THE FUTURE? ............. 189I. THE BEGINNING OF TIME (-BASED BILLING)It may not have been a lawyer who first said “time is money,”but it should have been. In fact, while Benjamin Franklin iscredited with crafting that exact phrase, 1 a similar notion whichwould warm the heart of any “bill-by-the-hour” lawyer today wasuttered by a Greek orator, Antiphon, who wrote speeches forcriminal defendants, and who may thus be fairly thought of as apredecessor to the modern lawyer: “The most costly outlay istime.” 2He had no idea.However, it was not always so—particularly in the legalprofession. The ascendance of the billable hour is of fairly recentorigin in this country. While the occasional hourly fee may havebeen seen before, it was not until sometime in the mid-1960s that*Charles N. Geilich is an attorney in Dallas, Texas, specializing in themediation of family law cases. He received his J.D. from the Texas TechUniversity School of Law and his Bachelor of Journalism from The Universityof Texas. In addition to his law practice and other endeavors, Charles Geilich isalso a novelist. The opinions and errors in this Article belong to the author; thefacts are available on a computer near you. He may be contacted atcharles@dallasmediation.com.1. BENJAMIN FRANKLIN, ADVICE TO A YOUNG TRADESMAN (1748), reprintedin THE POLITICAL THOUGHT OF BENJAMIN FRANKLIN 51, 51 (Ralph L. Ketchamed., Hackett Publ’g Co. 2003) (1965).2. DAN FALK, IN SEARCH OF TIME: THE SCIENCE OF A CURIOUS DIMENSION,64, n.* (2008).173

CHARLESTON LAW REVIEW [Volume 5this method of attorney compensation hit its stride. 3 Given howthe billable hour quickly came to be considered the “traditional”method of billing, it is odd to consider that the document oftencredited with its acceptance in the legal community—anAmerican Bar Association (ABA) sponsored track (variouslycalled a “report” and a “pamphlet”) titled “The 1958 Lawyer andhis 1938 Dollar”—is known more as legend than fact. 4 As oneresearcher noted parenthetically, when discussing this document:At this point, one normally expects a formal citation.However, I regret to say that this little publication, I think of theAmerican Bar Association, has slipped beneath the Sands ofTime and no one has been able to locate any trace of it. Iremember it vividly, however, and bear in mind that thememories of fellows my age often are more reliable on events of40 years ago than on more current matters! 5Remember, Mr. Smith was writing in an ABA journal, LegalEconomics, about a prior ABA report and still could not locate acopy of the report. 6Its obscurity, however, has not prevented the report frombeing cited by the United States Supreme Court in Gisbrecht v.Barnhart. 7 In that case, the Court simply referred to the ABAreport’s findings that “attorneys’ earnings had failed to keep pacewith the rate of inflation; the report urged attorneys to record thehours spent on each case in order to ensure that fees ultimatelycharged afforded reasonable compensation for counsels’ efforts.” 8It must be noted that the Supreme Court reference paraphrases,rather than quotes, the report and relies on a 1959 reprint of thearticle. 9 A later Federal Claims Court case 10 also refers to the3. See William Kummel, A Market Approach to Law Firm Economics: ANew Model for Pricing, Billing, Compensation and Ownership in CorporateLegal Services, 1996 COLUM.BUS.L.REV. 379, 385 n.16 (1996).4. G. Wynn Smith, Jr., Toward Value Billing—an Artificial IntelligenceApproach, LEGAL ECON., Nov.–Dec. 1989, at 23, 23. Admittedly, this author wasunsuccessful in finding the document, even after contacting the American BarAssociation, which also failed to locate the document.5. Id.6. Id.7. 535 U.S. 789 (2002).8. Gisbrecht v. Barnhart, 535 U.S. 789, 800 (2002).9. Id.174

2011] Attorney Billable Hourdocument, but only as it was cited in a law review article 11 thatcited another law review article 12 that cited several othersecondary sources, including Mr. Smith’s article referencedabove. 13 This seminal document may, indeed, be lost beneath the“Sands of Time.” 14Regardless of how the billable hour emerged as the preferredmethod of billing in this country, a brief look at what precededthe billable hour may help put it in context. In Colonial times,for example, attorney compensation was governed bylegislation. 15 In 1796, the United States Supreme Court inArcambel v. Wiseman 16 reiterated what has come to be called“The American Rule,” which generally bars prevailing partiesfrom recovering attorneys’ fees from the opposing side in theabsence of a statute or enforceable contract providing for such anaward. 17 In other words, each party pays his own attorney unlesslegislation provides otherwise. 18 Even in citing that principle asthe prevailing one at the time, however, the Supreme Courtnoted that “even if that practice were [sic] not strictly correct inprinciple, it is entitled to the respect of the court, till [sic] it ischanged, or modified, by statute.” 19In fact, there were many statutes in Colonial America thatset the amount of compensation that could be charged by anattorney—both of his own client and of a defeated adversary. 20Those fees were none too charitable to the lawyers either, leadingto many complaints. 21 It may be that these relatively modest fee10. Beta Analytics Int’l, Inc. v. United States, 75 Fed. Cl. 155, 163 (2007).11. Stephen W. Jones & Melissa Beard Glover, The Attack on TraditionalBilling Practices, 20 U. ARK.LITTLE ROCK L. REV. 293, 29395 (1998).12. Kummel, supra note 3, at 385.13. See Smith, Jr., supra note 4, at 23.14. Id.15. See, e.g., John Leubsdorf, Toward a History of the American Rule onAttorney Fee Recovery, 47 LAW &CONTEMP.PROBS. 9, 9 (1984).16. 3 U.S. (3 Dall.) 306 (1796).17. Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306, 306 (1796).18. Id.19. Id.20. Leubsdorf, supra note 15, at 10.21. Id. at 11. Leubsdorf notes, however, that some lawyers at the timemanaged to work around the statutory limits by reaching agreements with their175

CHARLESTON LAW REVIEW [Volume 5allowances were a result of the low esteem in which lawyers wereheld in the Colonial era. 22It was not long before lawyers in the United States werebeing paid mostly by their own clients rather than by what theycould recover statutorily as “costs” from the defeated party. Asone state court surmised in 1836, when discussing statutesgoverning legal fees, “[w]hatever might have been true when theseveral statutes giving costs, [sic] were enacted, we cannot, atthis day, shut our eyes to the truth known by every body [sic],that taxable costs afford a very partial and inadequateremuneration for the necessary expenses of defending anunfounded suit . . . .” 23 By 1836, clients were already payingattorneys more in fees than prescribed by statute.In 1840, the Delaware Court of Errors and Appeals upheldand enforced a fee agreement between a lawyer and his client,making what was then a bold statement: “I affirm that it hasnever been regarded as the violation of any law, much less of anycriminal law of this State, for a lawyer to contract for acontingent feea portion of what was recovered.” 24So, by the middle of the nineteenth century in this country,lawyers were negotiating fees with their clients as “privatebusinessmen,” as Leubsdorf states. 25 What, though, were thosearrangements? Though no less a lawyer than Abraham Lincolnsaid, “a lawyer’s time is his stock in trade,” lawyers did not billclients by the hour. 26 For decades, lawyers made their moneyfrom a combination of collecting statutory (albeit low) fees fromthe losing side of litigation and from several other methods,“including set fees for particular tasks, annual retainers, adiscretionary ‘feels right’ amount, and contingency fees, whichthe American Bar Association (ABA) approved as ethical inown clients for extra-statutory rates in the form of “gifts,” and he cites JohnAdams as one who “managed to do pretty well.” Id.22. M.H. Hoeflich, Legal Fees in Ninteteenth-Century Kansas, 48 U. KAN.L. REV. 991, 991 (2000).23. Whipple v. Fuller, 11 Conn. 582, 585 (1836).24. Bayard v. McLane, 3 Del. (3 Harr.) 139, 159 (1840).25. Leubsdorf, supra note 15, at 17.26. Martin v. Univ. of S. Ala., 911 F.2d 604, 611 (11th Cir. 1990).176

2011] Attorney Billable Hour1908.” 27In the 1930s and 1940s, American lawyers began using“minimum fee schedules,” often published by local and state barassociations. 28 In the guise of being voluntary, these suggestedfees often became mandatory, and were even enforced bydisciplinary action if a bar association decided a lawyer wasundercutting the market. 29 For most of the twentieth century,the ABA had an ethical rule stating that it was unethical for alawyer to “undervalue” legal services. 30 This was not the firstappearance of minimum fee schedules. In the MassachusettsBay Colony, for instance, the Suffolk County Bar adopted aschedule of minimum fees. Among the requirements was that alawyer could charge no less than $20 for a divorce, although adivorce must have been quite difficult to achieve at that time andin that place. 31 In 1869, Kansas’s minimum fee schedule dictatedthat a will could cost no less than $10, and a letter prepared byan attorney would set a client back $1. 32It should be clear to a modern attorney that minimum feeschedules run afoul of antitrust law, and in fact, the UnitedStates Supreme Court ruled in 1940 that an agreement to fixprices is itself a violation of the Sherman Antitrust Act, even ifthe conspirators are in no position to carry out and enforce theagreement and even if the agreement leaves room for flexibility. 33The jig was finally up in the mid-1970s with the Goldfarbdecision, in which the United States Supreme Court said of aminimum fee schedule for lawyers in Fairfax County, Virginia,“respondents’ activities constitute a classic illustration of pricefixing.” 34 The Court similarly dismissed the bar association’sclaim that legal services are exempt from antitrust legislation as27. Ellen Freedman, Taking the Mystery Out of Setting and Raising Rates,28 PENN.LAW. 48, 48 (2006).28. Id.29. Id.30. CANONS OF PROF’L ETHICS Canon 12 (1908).31. Hoeflich, supra note 22, at 993.32. Id. at 997.33. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 21314 (1940).34. Goldfarb v. Va. State Bar, 421 U.S. 773, 783 (1975).177

CHARLESTON LAW REVIEW [Volume 5being part of a “learned profession.” 35 The Sherman Act does notcontain a “learned profession” exception, and the Court refused toinfer such an exception. 36By the time the Goldfarb decision came down, minimum feeschedules had been largely replaced by the billable hour. 37However, as a result of the transition from the use of minimumfees, contingent fees, and percentage (or value) billing, the hourlybilling method did not start out in the form it eventuallyassumed. 38 “Initially, lawyers kept their time by client, notbecause they intended to bill the client for each hour, but for thepurpose of later determining a fair and proper fee.” 39 It was easy,then, for lawyers who were already keeping their time to thenstart charging by the hour.Why, though, is the demise of minimum fee schedulescredited with the rise of the billable hour? Could not Goldfarbjust as easily have led to a “flat fee revolution,” as long aslawyers competed fairly in setting their flat fees and did notadhere to a bar-established schedule? Perhaps, but as onecommentator claims, 40 the billable hour was gaining acceptanceanyway, and Goldfarb, along with legal commentary of thetime, 41 was merely the final blow. In fact, the United StatesJustice Department was investigating minimum fee schedulesaround the nation in the early 1970s and had threatened legalaction against bar associations. 42II. TIME IS MONEY, IF BILLED PROPERLYIt appears that, at least initially, charging by the hourseemed to address many of the inequities of not only the35. Id. at 786–87.36. Id. at 787.37. See F. Leary Davis, Back to the Future: The Buyer’s Market and theNeed for Law Firm Leadership, Creativity and Innovation, 16 CAMPBELL L. REV.147, 158 (1994).38. Id.39. Jones & Glover, supra note 11, at 294.40. Id. at 295.41. James K. Carroll, Comment, Minimum Fee Schedules: An AntitrustProblem, 48 TUL.L.REV. 682, 69596 (1974).42. Id. at 695.178

2011] Attorney Billable Hourminimum fee schedule but also of other forms of client billing.Instead of setting a flat rate, based on a minimum fee schedule orestablished by the lawyer or the firm, which would inherently betoo high for some cases (and, of course, too low for others), thehourly fee seemed to be a fair assessment of the actual time andeffort expended by a lawyer. Perhaps in the 1960s that was true.One commentator, comparing law school enrollments againstan expanding demand for legal services in the banking,insurance, and real estate sectors of the economy in the 1960sand 1970s, concluded that it was a “seller’s market” for lawyers. 43The theory is that lawyers were simply too busy to “churn” casesand inflate their billable hours in such a “seller’s market,” andthat there was no incentive for the lawyer to do so. 44 That mayor may not have been the case, but the evidence suggests thatclient complaints about “padded” hourly bills did not appearwidespread until later years. 45As law firms grew larger during the 1960s 46 and, thereafter,began upping the ante in new associate salaries, 47 the economicconditions under which lawyers practiced changeddramatically. 48 As their ranks, and thus the competition amongthemselves grew, the economic pressures under which lawyersfound themselves would have had a deleterious effect on anybilling system then in place, but, as it was, the hourly billing ratewas the prevalent system, so that is where stresses becameevident. Even the system of billing by the hour, under the bestcircumstances, contains inherent conflicts between the client andthe lawyer.43. Davis, supra note 37, at 148, 152.44. Id. at 159.45. See Jones & Glover, supra note 11, at 296.46. In 1975, the 100 largest law firms in the country employed a total of7,144 lawyers, which number reached 40,336 by 1990. Davis, supra note 37, at160.47. For example, in 1968, Cravath, Swaine, & Moore LLP offered their newassociates a then-surprising annual salary of $15,000, and the “new associatesalary wars” were underway. Davis, supra note 37, at 160; see also Daniel J.Cantor and Joel A. Rose, After the Revolution . . . in Legal Salaries, 17 THEPRACTICAL LAWYER 65 (1971).48. Davis, supra note 37, at 159.179

CHARLESTON LAW REVIEW [Volume 5Start with the question of what a client wants when he or shehires a lawyer. Whether the client is a large corporation seekinghelp in a securities transaction or an individual going through adivorce, there is no reason to think that a legal consumer wantsanything less than what a person buying a toaster at Walmartwants: value. As one commentator put it, “Overall, clients wantto pay a fair price for a reasonable amount of quality service.” 49The concept of the billable hour attempts to address that need bypricing the service—which is the product—based on the lawyer’seffort. Inherent in the hourly rate is recognition of the lawyer’sknowledge, competency, experience, and historical results insimilar matters. Thus, one lawyer may charge $400 per hourwhile another may charge $200 per hour for the same type oflegal work.Clients also want predictable legal fees that they can budgetfor, regardless of whether the client is Exxon Mobil or Jane Doe.Clients want to spend as little money as necessary to get thehighest quality legal representation that they can afford. This issimply another way of saying that, for all its declarations ofprofessionalism, lawyers provide a product not unlike Sony whenit sells a high-definition television set. As discussed in moredetail below, the average buyer of such a television is in noposition to look inside the set and determine its actual, asopposed to stated, quality, and the average legal consumer is inno position to determine whether a particular lawyer’s work is ofreasonable quality and reasonable price.Given the client’s demands, we turn next to what a lawyerwants in his career and in a particular case. While there is alegitimate argument to be made for the psychological returns ofpracticing law (although to find it one must wade throughextensive research reporting only the negative aspects of being alawyer), 50 from an economic perspective, a lawyer, like any otherprovider of goods and services, wants to make the most money heor she can. If a lawyer gets paid by the hour, what is the surest49. Jones & Glover, supra note 11, at 293.50. See, e.g., Susan Daicoff, Lawyer, Be Thyself: An Empirical Investigationof the Relationship Between the Ethic of Care, the Feeling DecisionmakingPreference, and Lawyer Wellbeing, 16 VA.J.SOC.POL’Y &L. 87 (2008).180

2011] Attorney Billable Hourway to make more money? If the lawyer has set his hourly rateas high as the market will bear, then it does not take aprofessional economist to understand that “billing more hours” isthe answer.The question then becomes, “How does a lawyer bill morehours?” Although some businesses may offer “longer hours,” 51under the current understanding of time, there are still onlytwenty-four hours in a day, and humans still must eat, sleep, andattend to various other duties, even while practicing law.Lawyers have managed, however, to bill an increasingnumber of hours to their clients over the years, reaching“unreasonably high levels in many firms” by the mid-1990s. 52There is no evidence to suggest that the profession has seen adecrease in the number of hours billed per year since then. Thereare several ways a lawyer can increase her billable hours otherthan actually working more hours in a day, and many of themserve to at least compromise the lawyer’s ethical and professionalresponsibilities.A lawyer can take longer than necessary to complete a task.This is a zero-sum game, however, if one considers that takinglonger on one task decreases the lawyer’s ability to bill otherclients—assuming, of course, that the lawyer is not doublebilling.This approach may work, though, for a lawyer who isstruggling to attract paying clients and chooses to bill as manyhours as possible to the one, or few, clients who pay well. Untilthat lawyer reaches her capacity in using all of the time availableto her, such an approach would indeed yield more revenue to thelawyer than a more efficient approach. After that point—again,assuming no double-billing and assuming that all the lawyer’sclients have an equal ability to pay—the lawyer would simply beincreasing revenue from one client while decreasing revenuefrom another client. Those assumptions, of course, prove artificial51. Gregg Easterbrook, New Key to Success: The Maroon, Tuesday MorningQuarterback, ESPN (Oct. 14, 2003), http://sports.espn.go.com/espn/page2/story?page=tmq/031014 (“The Bank of America branch near the Official Office ofTMQ, in downtown Washington, D.C., has a giant banner in the windowreading, LONGER HOURS. Longer than 60 minutes?”).52. ABA, COMM. ON BILLABLE HOURS REPORT 3 (2002), available athttp://www.abanet.org/careercounsel/billable/toolkit/bhcomplete.pdf.181

CHARLESTON LAW REVIEW [Volume 5in the real world.Another way to increase billable hours, for an individuallawyer or an entire firm, is to practice inefficiently. The billablehour system actually “penalizes the efficient and productivelawyer,” and while some have argued that inefficiency of thatsort would be accounted for in lower hourly rates, there is littleevidence to support that theory, and the ABA has stated that “inmost circumstances [sic] the rate differential does not come closeto accounting for the difference in experience and productivity.” 53After all, in a world in which you are paid for hours worked, whytry to be efficient when inefficiency pays better? 54What we have here is a situation that economists refer to as“moral hazard.” 55 The term, in its narrowest sense, describes asituation in which an insured person will take greater risks thanthey would without insurance, thus skewing the claims that theinsurer would otherwise have to pay. 56 The term has a broadermeaning, as well, in which it refers to any economic relationshipwhere the incentives of the respective parties are not consistent,or to any situation where one party simply takes advantage of asituation because he can. 57The specter of moral hazard in the arena of attorneys’billable hours is easy to see and was well summarized by ChiefJustice William Rehnquist: “The greater the pressure ofmaximization of income, the more likely some sort of ethicaldifficulties will be encountered—whether the firm consists of asolo practitioner or of several hundred lawyers.” 58 What makesthe concept of moral hazard so insidious in an attorney’s billablehours is another economic idea called “asymmetric information.”53. Id. at 6.54. See John A. Beach, The Rise and Fall of the Billable Hour, 59 ALA. L.REV. 941, 947 (1996) (“[F]ixation upon billable hours might even tempt anoccasional associate . . . to wallow for too long in the backwaters of imprecise‘research’. . . .”).55. THE ECONOMIST, Research Tools: Economics A–Z, available athttp://www.economist.com/research.economics/; then search “moral hazard”.56. Id.57. Belinda M. Smith, Time Norms in the Workplace: Their ExclusionaryEffect and Potential for Change, 11 COLUM.J.GENDER &L. 271, 286 (2002).58. Chief Justice William H. Rehnquist, Dedicatory Address: The LegalProfession Today, 62 IND.L.J. 151, 155 (1987).182

2011] Attorney Billable HourWithout turning this legal paper into an economics paper, abrief explanation is in order. “Asymmetric information” is justwhat it sounds like: One party to a transaction, or one party in arelationship, is privy to information that the other party is not. 59If the party with greater knowledge were perfectly ethical,asymmetric information would not be a problem because themore knowledgeable party would reveal her information to theother party or would simply not use the information to heradvantage. In fact, there are instances in which it is illegal forone to use asymmetric information to one’s advantage, likeinsider trading laws or required disclosures when selling ahouse. 60If a client or customer is at a disadvantage because he is onthe wrong side of asymmetric information, he may well make an“adverse selection.” That is, the client or customer may hire andcontinue to employ an attorney against his own economicinterests because the client or customer does not know what thelawyer knows and, thus, may not know the lawyer is takingadvantage of him.The obvious application of these economic theories to theattorney-client relationship, and specifically to hourly billing, isthat the lawyer knows how hard he is working (or not working)and how much effort is really required, but the client does not.Lawyers can use their “inside knowledge” to bill more hourson a case than is necessary to effectively represent the client; thisavenue has the advantage of soothing the conscience of thelawyer and her firm because, unlike padding a bill, the lawyercan say that the hours were actually worked. While attorneys aresupposed to “exercise ‘billing judgment’ by excluding time that isunproductive, excessive, [or] duplicative, . . . ” 61 it is not hard tosee that “billing judgment” is awfully subjective. 62 Financial59. THE ECONOMIST, supra note 55.60. Walter Williams, Insider Trading and Asymmetric Information,CAPITALISM MAGAZINE (July 15, 2003), available at http://www.Capitalismmagazine.com/index.php?news=2951.61. Harris v. Allstate Ins. Co., No. 07-8789, 2009 U.S. Dist. LEXIS 3724, at*7 (E.D. La. Jan. 12, 2009).62. Matthew D. Klaiber, A Uniform Fee-Setting System for CalculatingCourt-Awarded Attorneys’ Fees: Combining Ex Ante Rates with a Multifactor183

CHARLESTON LAW REVIEW [Volume 5incentive has a way of coloring one’s judgment.Actually, lawyers who complain about their brethren suingfor legal malpractice might want to thank those who sue. Anargument for doing “extra” work is that no stone may be leftunturned for fear of a legal malpractice suit for failing to doenough. Doctors may be familiar with this phenomenon, and theymay order more tests that some would judge unnecessary simplyfrom fear of a later malpractice suit claiming they did not orderthe necessary test or perform the necessary operation. In thisway, grievance committees and malpractice cases may have theunintended consequence of causing attorneys to take even moretime and bill even more hours, on a legal matter than they wouldhave otherwise, without any concomitant increase in the qualityof the legal representation.Another aspect of the inefficiency incentive for lawyers whobill by the hour is the disincentive to leverage technology. Noone can doubt that office technology has created a different worldfor all businesses, including law firms, since the billable hourbecame fashionable in the 1960s. And there is little doubt thatlawyers have adopted much of that technology. 63In theory, a lawyer who uses modern technology—particularly the use of Internet-based legal research instead of“hitting the books” in the library—would be more efficient doingthe same tasks as the pre-modern lawyer, and a lower hourlyrate should follow. Even if the lawyer must account, in settinghis hourly rate, for the overhead costs of buying the technology,the fact is that technology costs, for lawyers and everyone else,continue to decrease over the years. 64 It would be a losingargument to suggest that maintaining a monthly subscription toan online research service is more expensive in consistent,inflation-adjusted dollars than it was to maintain a full lawlibrary in the “olden” days, not even including the amount ofmonthly rent for the square footage taken up in an office by saidlaw library.Lodestar Method and a Performance-Based Mathematical Model, 66 MD.L.REV.228, 229 (2007).63. Chad Schatzle, Law Office Technology, NEV.LAWYER, Mar. 2008, at 32.64. Id.184

2011] Attorney Billable HourSo where has the promise of increased lawyer efficiencygone? As one commentator observed in 1998, increasing the useof technology in the legal profession should drive down attorneyrevenue unless the increased efficiency attracts additionalbusiness, law firms downsize like other businesses that seeincreased efficiency from technology, or clients agree to payhigher hourly rates. 65 Seen in this light, hourly billing creates adisincentive for any lawyer to modernize his or her practicebeyond the minimum necessary to keep up with clientdemands. 66 While the lawyer may be forced to use email andword processors because any client would expect no less, nothingincreases revenue like finding the slowest method of researchand case preparation. Again, the concept of asymmetricalinformation tells us that the client is in no position to knowwhether the lawyer is using the latest and most efficient methodsof legal research and passing the savings on to the client, whilethe average layperson can detect a problem with a lawyer whocopies case law in longhand from an actual book versus onesitting a computer.Furthermore, one benefit that should arise with the use oftechnology, particularly word processors, is building a databaseof forms from prior work that does not need to be replicated forlater clients. Once an attorney has drafted, say, a motion tomodify a child custody order based on a change of circumstances,that piece of work should not have to be recreated for the nextclient with the same issue. Simply changing some names anddates should take a fraction of the time that it took to create theentire document originally. Today’s computer software thatessentially allows the attorney, or paralegal, to plug ininformation that the program uses to create a form onlyincreases the efficiency. Given that the ABA has reiterated thata lawyer may not bill for more time than is actually used by thatlawyer, except for allowable rounding up to a minimum timeperiod, clients should be seeing a windfall of lower fees. 6765. Jones & Glover, supra note 11, at 296–97.66. Id. at 297.67. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 93-379(1993).185

CHARLESTON LAW REVIEW [Volume 5That has not happened. There is evidence that lawyers arebilling more hours than ever, although the evidence is easier tocome by in a large-firm context. 68 Studies of attorney billingshow a marked increase in the number of billable hours requiredof lawyers in a law firm context, and anecdotal, but widelyreported instances of hourly billing gone wild illustrate theproblem. 69 Former United States Attorney General WebsterHubbell, not a striving young associate but the managing partnerof one of Little Rock, Arkansas’s most prestigious law firms,served prison time for, in part, overbilling clients. 70 The WallStreet Journal reported on the accusations of an associate in aChicago law firm who had the temerity to report to a judge thathis firm, specifically a senior partner, had padded the firm’shours with at least 450 “phantom hours” at a cost to the client ofmore than $100,000. 71So, during the same years that faster, and ultimately lessexpensive, technology was becoming available to lawyers, theevidence is that lawyer’s billable hours increased rather thandecreased. 72 This happened even though there are many lawyersnow who report that they work “virtually,” that is without atraditional office and its overhead at all, relying on the Internetand other office technology to do their work. At least one lawfirm, Virtual Law Partners in San Francisco, bucked the trendand reported in 2009 that its forty lawyers have no physicaloffice, and that by saving on overhead with the efficient use oftechnology, they bill clients at an hourly rate of about half whatis charged by large firm lawyers with comparable experience. 73Clearly, leveraging technology to lower overhead expenses can bereflected in a lower hourly rate, even though it appears to be the68. Id.69. Susan Saab Fortney, Soul for Sale: An Empirical Study of AssociateSatisfaction, Law Firm Culture, and the Effects of Billable Hour Requirements,69 UMKC L. REV. 239, 241 (2000).70. Todd S. Purdum, Report Says Hubbell Defrauded Los Angeles byTaking Fees for Work He Never Did, N.Y. TIMES, June 24, 1997, at B11.71. Nathan Koppel, Lawyer’s Charge Opens Window on Bill Padding,WALL ST.J., Aug. 30, 2006, at B1.72. See, e.g., Koppel, supra note 71; Purdum, supra note 70.73. Stephanie Francis Ward, Virtually Practicing, A.B.A. J., June 2009,at 51.186

2011] Attorney Billable Hourexception. 74Is there anything, then, to keep hourly rates for attorneysand their overall fees in check? There is, and one must start withthe notion that law may be more of a business today than it wasin years past, but it is still also a profession. Every lawyerpracticing in this country is subject to his or her controlling bar’sethical rules. Also, other organizations, such as the ABA,publish, maintain, interpret and update model rules of ethicsthat are widely followed around the country.When it comes to attorney fees, Model Rule 1.5 states clearlythat an attorney shall not charge or collect an unreasonable fee. 75The rule then goes on to enumerate factors in determining thereasonableness of a fee, but the ABA—and, thus, the states thathave adopted the Model Rules, remain agnostic on the type of fee,whether hourly, contingent, flat or some combination. 76 Thecourts, too, have formulated rules and factors to be used indetermining whether a lawyer’s fee is reasonable, including theoft-cited “lodestar” factors enumerated in 1973 by the UnitedStates Court of Appeals for the Third Circuit. 77 The UnitedStates Supreme Court added that, in determining thereasonableness of a legal fee, and specifically of an hourly billingrate, a reviewing court should look to the prevailing rates in thelawyer’s community “for similar services by lawyers ofreasonably comparable skill, experience, and reputation.” 78A violation of a bar’s professional rules can lead to anattorney being reprimanded, and even disbarred, by that barassociation, so such rules and their enforcement should provide acheck on a lawyer’s temptation to bill unethically. In economicterms, these rules address the problem of asymmetricinformation and moral hazard.Are they, however, effective? For the individual lawyer whois caught and reprimanded, of course they are. While it is74. Id. at 52.75. MODEL RULES OF PROF’L CONDUCT R. 1.5 (2009).76. Id.77. Lindy Bros. Builders Inc. v. Am. Radiator & Standard Sanitary Corp.,487 F.2d 161, 168 (3d Cir. 1973).78. Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984).187

CHARLESTON LAW REVIEW [Volume 5impossible to quantify how many lawyers contemplated paddingtheir hourly billing charges and decided against it based on theirfear of running afoul of their bar’s ethical rules, a plain readingof Model Rule 1.5 shows that lawyers themselves are at leastcommitted to the ideal of reasonable fees. 79 As a pair ofcommentators point out though, “The fact that the professionregulates itself through a representative body that debates andacts on rule recommendations ensures that the Rules comportrather neatly with what lawyers are actually willing to do.” 80Furthermore, while it is presumably better to have ethicalrules than not, the consensus seems to be that lawyers as a wholeare still held in low public esteem, particularly with regard tofees. 81 It would appear, then, that if ethical rules have served asa brake on unethical billing practices, those rules have noteliminated such practices. There is also the occasional criminalprosecution of a lawyer for unethical billing, but, as in theWebster Hubbell case, such prosecutions tend to be part of largercases. 82 In the Hubbell case, for example, Mr. Hubbell wasalready under investigation by a federal special prosecutor foralleged improprieties involving land deals. 83 Also, in the Hubbellcase, the lawyer simply invented and billed for work that neverhappened, but a case of doing unnecessary work or billing toomuch time for work actually done would be more difficult toprosecute successfully. 84Turning again to an economics paradigm, one might wonderwhy the legal consumer market itself would not weed out andpunish inefficient and unethically-billing lawyers. The answergoes back, at least in part, to the concept of asymmetricinformation. If clients were aware that they were being billedunethically, they probably would protest, but a client hires an79. MODEL RULES OF PROF’L CONDUCT R. 1.5.80. Nelson P. Miller & Joan Vestrand, Of Shining Knights and CunningPettifoggers: The Symbolic World of the Model Rules of Professional Conduct,110 PENN ST.L.REV. 853, 857 (2006).81. Sharon B. Gardner, Project Runway–One Day You’re In as the Attorneyand the Next Day You’re Out!, 1 EST.PLAN.CMTY.PROP.L.J. 111, 135 (2006).82. See Purdum, supra note 70.83. Id.84. Id.188

2011] Attorney Billable Hourattorney in the first place because, presumably, the client is noteducated and skilled in the practice of law, at least not in thetype or complexity of law being entrusted to the lawyer. In mostinstances, the client is at the mercy of the lawyer, much like apatient is at the mercy of a doctor to do what is necessary, andrefrain from doing the unnecessary, using the doctor’s bestprofessional judgment. Thus, the consumer market for legalrepresentation is not well equipped to detect billing fraud.III. WHAT HAPPENS TO TIME IN THE FUTURE?While this Article is intended to assess the inherent problemswith the billable hour, there are alternatives to the billable hour,including charging a flat fee. In doing so, however, it must benoted that the potential for abuse is still present, given that alawyer could simply quote a fee that is far too high for the legalwork required. The lawyer may even do the work, albeitunnecessarily, in justification of the fee, as opposed to billing forwork not actually performed.Remember, the hourly rate worked well for many yearsbecause clients liked an itemized, detailed accounting of whattheir lawyers were doing for the fee, rather than simply receivinga statement “for services rendered.” There will be clients whofear abandoning an hourly billing system just for that reason. 85Critics have also advanced the argument that flat feearrangements create a conflict of interest between the lawyerand client because the lawyer may not want to perform “extra”work where there is no economic incentive of receiving greatercompensation for doing it. 86 The obvious retort is that theconflict in such a situation is certainly no greater than exists inan hourly billing context wherein the lawyer has an incentive todo more work than necessary. Flat fees, like any other fee, mustbe reasonable, with reasonableness determined by the samefactors applied to hourly fees, namely Model Rule 1.5 and the85. Jones & Glover, supra note 11, at 304.86. Peter Eggenberger, License to Bill = License to Kill? EthicalConsiderations on Lawyers’ Fees (with a View to Switzerland), 20 PENN ST.INT’LL. REV. 505, 52324 (2002).189

CHARLESTON LAW REVIEW [Volume 5lodestar standards. 87Therefore, if flat fees can be manipulated, they are stillsubject to the economic principles of moral hazard andasymmetric information, and if their reasonableness is to bedetermined by the same standards as those used for billablehours, then what is the advantage to the client, if any, in a flatfee arrangement?In a word, predictability. Yes, many of the same client risksapply to a flat fee as to a billable hour arrangement, but thesignificant difference is that a flat fee quoted up front, gives theclient the ability to shop around and compare the fee to whatother attorneys would charge for the same work. Achievingpredictability over legal costs and shifting some of the risks ofinefficiency from the client to the lawyer can be quite popularwith clients. 88It is beyond the scope of this article to detail all thecomplexities of flat fee arrangements, but one clear issue is thatboth client and lawyer must have an understanding of the workto be done and acknowledge that law can be complicated andvariables in a particular case may be hard to foresee. Still, thoseproblems tend to run to the lawyer more than to the client, asopposed to the billable hour situation where the deck is stackedin favor of the lawyer. This writer has no doubt that lawyers inflat fee arrangements will prove to be more efficient and bettertime managers than those billing by the hour.The hourly billing arrangement still prevails in today’s legalprofession, but it has been met with increasing resistance fromclients. Instances of lawyers committing outright fraud in theirhourly billing practices, while hard to quantify, have receivedcoverage in the news media when exposed, which has donenothing to improve the image of lawyers. 89 While the hourly feemay seem like it has been around forever, it has been theprevalent method of billing only since the 1960s, and its87. Douglas R. Richmond, Understanding Retainers and Flat Fees, 34 J.LEGAL PROF. 113, 134 (2009).88. Charles S. McCowan, Jr. & Esteban Herrera, Jr., Alternative FeeArrangements: Time for Consideration, 43 LA.B.J. 466, 467 (1996).89. See Purdum, supra note 70.190

2011] Attorney Billable Hourcriticisms, both from clients and the legal profession itself, onlyincrease.What billing method may eventually come to replace thehourly fee is not clear, but, as the saying goes, if somethingcannot go on forever, it will not.191

ERRORS IN JUDGMENT OR HOW TO GETDEBTS DISCHARGED IN BANKRUPTCY“(IL)LEGALLY”: A MATTER OF NOTICEGloria J. Liddell Pearson Liddell, Jr. **I. INTRODUCTION ............................................................... 194II. BANKRUPTCY CODE REQUIREMENTS TOCONDUCT ADVERSARIAL PROCEEDINGS ................. 198A. The Nature of Adversary Proceedings ........................ 1981. In General ................................................................ 1982. How Adversary Proceedings Are Conducted inBankruptcy Cases: Notice Requirements .............. 1993. Adversary Proceedings to DetermineDischargeability of Student Loans ......................... 201B. Adversary Proceedings to Determine the Validity,Priority, or Extent of a Lien ......................................... 203III. BANKRUPTCY NOTICE TO CREDITORREQUIREMENTS .............................................................. 204IV. LEGAL VERSUS ACTUAL NOTICE IN ANALOGOUSTYPES OF PROCEEDINGS .............................................. 207A. Service of Process ......................................................... 2091. Indiana—Actual Notice Wins ................................. 2092. Louisiana—Legal Notice Wins ............................... 212 Gloria J. Liddell, Assistant Professor, Business Law, Mississippi StateUniversity; J.D., Howard University, 1976; M.A.T., Clinical LegalEducation, Antioch University, 1985; B.S., Mathematics, District ofColumbia Teachers College, 1973. We wish to acknowledge the valuableeditorial assistance given to us by our brilliant son, Joshua Nelson Liddell, whohas gone to be with the Lord. He was an extraordinarily talented young manwho particularly enjoyed critiquing and editing our works. We loved him andmiss him dearly.Pearson Liddell, Jr., Associate Professor, Business Law, MississippiState University; J.D., Howard University, 1975; B.S., Accounting,Central (Ohio) State University, 1971.193

CHARLESTON LAW REVIEW [Volume 5B. Equitable Mortgages .................................................... 213C. Foreclosure Notice ........................................................ 2181. Actual Notice Wins ................................................. 2182. District of Columbia—Legal Notice Wins .............. 219V. A SCHWAB-ESPINOSA ANALYSIS ................................ 221A. Schwab Facts ................................................................ 221B. United States Supreme Court Decision ...................... 222C. Schwab Impact ............................................................. 223VI. CONCLUSION .................................................................... 226I. INTRODUCTIONDisclaimer: This Article should in no way be construed asendorsing purposeful attempts to have debts discharged throughconcealment, hindrance, or other fraudulent efforts. 1 Certainly,1. See 11 U.S.C. § 727(a) (2006) (“Discharge”), which provides in pertinentpart:194(a) The court shall grant the debtor a discharge, unless—(1) the debtor is not an individual;(2) the debtor, with intent to hinder, delay, or defraud a creditoror an officer of the estate charged with custody of property under thistitle, has transferred, removed, destroyed, mutilated, or concealed, orhas permitted to be transferred, removed, destroyed, mutilated, orconcealed—(A) property of the debtor, within one year before the date of thefiling of the petition; or(B) property of the estate, after the date of the filing of thepetition;(3) the debtor has concealed, destroyed, mutilated, falsified, orfailed to keep or preserve any recorded information, including books,documents, records, and papers, from which the debtor’s financialcondition or business transactions might be ascertained, unless suchact or failure to act was justified under all of the circumstances of thecase;(4) the debtor knowingly and fraudulently, in or in connectionwith the case—(A) made a false oath or account;(B) presented or used a false claim;(C) gave, offered, received, or attempted to obtain money,property, or advantage, or a promise of money, property, oradvantage, for acting or forbearing to act; or(D) withheld from an officer of the estate entitled to possessionunder this title, any recorded information, including books,documents, records, and papers, relating to the debtor’s property or

2011] Errors in Judgmentthere are serious penalties for any such efforts, includingcriminal penalties. 2financial affairs;(5) the debtor has failed to explain satisfactorily, beforedetermination of denial of discharge under this paragraph, any loss ofassets or deficiency of assets to meet the debtor’s liabilities;(6) the debtor has refused, in the case—(A) to obey any lawful order of the court, other than an order torespond to a material question or to testify;(B) on the ground of privilege against self-incrimination, torespond to a material question approved by the court or to testify,after the debtor has been granted immunity with respect to thematter concerning which such privilege was invoked; or(C) on a ground other than the properly invoked privilege againstself- incrimination, to respond to a material question approved by thecourt or to testify.Id.2. 18 U.S.C. § 152 (2006) (“Concealment of assets; false oaths and claims;bribery”):A person who—(1) knowingly and fraudulently conceals from a custodian,trustee, marshal, or other officer of the court charged with the controlor custody of property, or, in connection with a case under title 11,from creditors or the United States Trustee, any property belonging tothe estate of a debtor;(2) knowingly and fraudulently makes a false oath or account inor in relation to any case under title 11;(3) knowingly and fraudulently makes a false declaration,certificate, verification, or statement under penalty of perjury aspermitted under section 1746 of title 28, in or in relation to any caseunder title 11;(4) knowingly and fraudulently presents any false claim for proofagainst the estate of a debtor, or uses any such claim in any caseunder title 11, in a personal capacity or as or through an agent, proxy,or attorney;(5) knowingly and fraudulently receives any material amount ofproperty from a debtor after the filing of a case under title 11, withintent to defeat the provisions of title 11;(6) knowingly and fraudulently gives, offers, receives, or attemptsto obtain any money or property, remuneration, compensation,reward, advantage, or promise thereof for acting or forbearing to actin any case under title 11;(7) in a personal capacity or as an agent or officer of any personor corporation, in contemplation of a case under title 11 by or againstthe person or any other person or corporation, or with intent to defeatthe provisions of title 11, knowingly and fraudulently transfers orconceals any of his property or the property of such other person or195

CHARLESTON LAW REVIEW [Volume 5On March 23, 2010, the United States Supreme Courtdecided the case of United Student Aid Funds, Inc. v. Espinosa 3on writ of certiorari from the United States Court of Appeals forthe Ninth Circuit, 4 affirming the decision of that court. 5 By thiscase, a debtor was relieved of an obligation to pay a student loan,notwithstanding the fact that the debtor had not followed theprescribed procedure for obtaining a discharge of that debtpursuant to the U.S. Bankruptcy Code (the Code). 6 Studentloans are exempt from discharge unless not doing so wouldimpose an “undue hardship” upon the debtor. 7 The Federal Rules196corporation;(8) after the filing of a case under title 11 or in contemplationthereof, knowingly and fraudulently conceals, destroys, mutilates,falsifies, or makes a false entry in any recorded information (includingbooks, documents, records, and papers) relating to the property orfinancial affairs of a debtor; or(9) after the filing of a case under title 11, knowingly andfraudulently withholds from a custodian, trustee, marshal, or otherofficer of the court or a United States Trustee entitled to itspossession, any recorded information (including books, documents,records, and papers) relating to the property or financial affairs of adebtor;Shall be fined under this title, imprisoned not more than 5 years,or both. (emphasis added).Id.3. United Student Aid Funds, Inc. v. Espinosa (Espinosa), 559 U.S. ___,130 S. Ct. 1367 (2010).4. Espinosa v. United Student Aid Funds, Inc. (United Student AidFunds), 553 F.3d 1193 (9th Cir. 2008).5. Espinosa, 559 U.S. at ___, 130 S. Ct. at 1382.6. Id. at ___, 130 S. Ct. at 1380 (“Given the Code’s clear and self-executingrequirement for an undue hardship determination, the Bankruptcy Court’sfailure to find undue hardship before confirming Espinosa’s plan was legalerror. But the order remains enforceable and binding on United because Unitedhad notice of the error and failed to object or timely appeal.”) (internal citationsomitted). For a description of the procedure, see id. at ___, 130 S. Ct. at 1380–82.7. 11 U.S.C. § 523(a)(8) (2006):(a) A discharge under section 727, 1141, 1228(a), 1228(b), or1328(b) of this title does not discharge an individual debtor from anydebt—. . .(8) unless excepting such debt from discharge under thisparagraph would impose an undue hardship on the debtor and the

2011] Errors in Judgmentof Bankruptcy Procedure (Rules) provide the procedure for adebtor to initiate an adversary proceeding to determine thedischargeability of a debt. 8 In Espinosa, this proceeding was notconducted. 9 Instead, in this Chapter 13 case, the debtor providedfor the principal of the debt to be paid through the plan, but notthe interest. 10 The plan was confirmed by the bankruptcy court,and upon completion of the payments under the plan, theinterest was discharged. 11 No finding of “undue hardship” wasmade by the bankruptcy court. 12 The court opined that becausethe creditor had notice of the bankruptcy proceeding, the factId.debtor’s dependents, for—(A)(i) an educational benefit overpayment or loan made, insured,or guaranteed by a governmental unit, or made under any programfunded in whole or in part by a governmental unit or nonprofitinstitution; or(ii) an obligation to repay funds received as an educationalbenefit, scholarship, or stipend . . .8. FED.R.BANKR.P. 7001 (2006).An adversary proceeding is governed by the rules of this Part VII.The following are adversary proceedings: (1) a proceeding to recovermoney or property, other than a proceeding to compel the debtor todeliver property to the trustee, or a proceeding under § 554(b) or § 725of the Code, Rule 2017, or Rule 6002; (2) a proceeding to determine thevalidity, priority, or extent of a lien or other interest in property, otherthan a proceeding under Rule 4003(d); (3) a proceeding to obtainapproval under § 363(h) for the sale of both the interest of the estateand of a co-owner in property; (4) a proceeding to object to or revoke adischarge; (5) a proceeding to revoke an order of confirmation of achapter 11, chapter 12, or chapter 13 plan; (6) a proceeding todetermine the dischargeability of a debt; (7) a proceeding to obtain aninjunction or other equitable relief, except when a chapter 9, chapter11, chapter 12, or chapter 13 plan provides for the relief; (8) aproceeding to subordinate any allowed claim or interest, except whena chapter 9, chapter 11, chapter 12, or chapter 13 plan provides forsubordination; (9) a proceeding to obtain a declaratory judgmentrelating to any of the foregoing; or (10) a proceeding to determine aclaim or cause of action removed under 28 U.S.C. § 1452.Id. Certain of the other matters for which an adversary proceeding is requiredare discussed infra Part II.A.9. Espinosa, 559 U.S. at ___, 130 S. Ct. at 1374.10. Id.11. Id.12. Id.197

CHARLESTON LAW REVIEW [Volume 5that the debtor failed to comply with the Code’s provisions wasnot a hindrance to obtaining a discharge of that debt. 13This Article delves into this “quirk” in the law where,although a debtor in a bankruptcy proceeding may not havecomplied with the provisions of the Code, a discharge of certainaffected debts may nonetheless be allowed. We explore varioustypes of circumstances wherein the decision by the Court inEspinosa may be analogously applied to excuse the debtor’sregulatory compliance. The authors further explore statutorynotice requirements generally and how other courts have excusedde facto noncompliance with these statutory requirements.Of course, the unscrupulous debtor might view Espinosaopportunistically. Indeed, the Court itself acknowledged thispossibility by stating: “We acknowledge the potential for badfaithlitigation tactics.” 14 Hence, we note the negative impactthis decision may have upon creditors in bankruptcy cases. Yet,as the authors note, there are certainly adequate prophylacticmeasures in the Code to condemn any actions that might be donewith the fraudulent or dishonest intention of avoiding thepayment of a debt. 15 The authors conclude by providingregulatory and administrative suggestions to thwart any suchintended or unintended breaches of the Code.II. BANKRUPTCY CODE REQUIREMENTS TO CONDUCTADVERSARIAL PROCEEDINGSA. The Nature of Adversary Proceedings1. In GeneralThe Rules specify the types of matters for which anadversary proceeding must be conducted. 16 As mentioned in theintroductory discussion, 17 adversary proceedings are required by19813. Id. at ___, 130 S. Ct. at 1380.14. Id. at ___, 130 S. Ct. at 1382.15. E.g., 18 U.S.C. § 152(9) (2006).16. FED.R.BANKR.P. 7001 (2006).17. See supra Part I.

2011] Errors in Judgmentthe Rules to determine the dischargeability of debts. 18 The Coderequires that there be a determination of undue hardship torelieve the debtor of the obligation to pay such debts. 192. How Adversary Proceedings Are Conducted in BankruptcyCases: Notice RequirementsAdversary proceedings in bankruptcy cases are conductedmuch like any contested civil proceeding, with a few nuancespeculiar to bankruptcy. 20 In fact, for the most part, the FederalRules of Civil Procedure (FRCP) are incorporated by referenceinto the Rules. 21 For example, Rule 7004 of the Rules details theprocedures and requirements for a summons, service, proof ofservice, service of the complaint with the summons, and personaljurisdiction requirements. 22 Reference is made throughout Rule7004 to Rule 4 of the FRCP. 23 Rule 7004 generally expands whatis permitted by the FRCP, for instance, by allowing for service ofprocess to be made by first class postage prepaid mail. 24 TheFRCP are incorporated by reference into the Rules with respectto the manner in which pleadings and other papers are to beserved 25 and the pleadings allowed in adversary proceedings. 26There are other distinctions between the Rules and theFRCP; this Article is not intended to be exhaustive on this topic.A key distinction worth noting, however, is how Rule 7008(a) ofthe Rules incorporates by reference Rule 8 of the FRCP,concerning the general rules of pleading. 27A substantive dissimilarity between Rule 7008 of the Rulesand Rule 8 of the FRCP is the reference to core and non-core18. Id.19. 11 U.S.C. § 523(a)(8) (2006).20. See generally FED.R.BANKR.P. 7001.21. Id.22. FED.R.BANKR.P. 7004.23. FED. R.CIV. P. 4 (2006) (setting forth the requirements for service ofsummons and related jurisdictional matters).24. FED.R.BANKR.P. 7004(b).25. FED.R.BANKR.P. 7005.26. FED.R.BANKR.P. 7007.27. FED.R.BANKR.P. 7008(a).199

CHARLESTON LAW REVIEW [Volume 5proceedings. 28 Because bankruptcy courts are courts of limitedjurisdiction, deriving their authority from that granted to districtcourts, decisions by bankruptcy courts in non-core proceedingsare not considered “final orders.” 29 Instead, bankruptcy courtdecisions are proposed findings of fact and conclusions of lawsubmitted to the district court. 30 Rule 7008 of the Rules thusrequires: “In an adversary proceeding before a bankruptcy judge,the complaint, counterclaim, cross-claim, or third-partycomplaint shall contain a statement that the proceeding is core ornon-core and, if non-core, that the pleader does or does notconsent to entry of final orders or judgment by the bankruptcyjudge.” 3120028. Id.29. 28 U.S.C. § 157 (2006).Unlike courts that derive their authority from Article III of theU.S. Constitution, bankruptcy courts are courts of limited jurisdictionwhose authority is derivative of that granted to the district courts . . . .Cases under title 11, proceedings arising under title 11 of the U.S.Code and proceedings arising in a bankruptcy case are coreproceedings, while proceedings related to a case under title 11 arenoncore proceedings . . . .The distinction between core and non-core proceedings is criticalbecause a bankruptcy court is delegated the authority to enter ordersand judgments in core proceedings, subject to appellate review under28 U.S.C. § 158. However, when a proceeding is non-core, thebankruptcy court is limited to submitting proposed findings of factand conclusions of law, with the district court authorized to enter anyfinal order or judgment after de novo review.Thomas Michael Horan, A Primer on Bankruptcy Jurisdiction, AM.BANKR.INST.J., Sept. 2009, at 42, 42–43 (internal citations omitted).30. Id.31. FED. R. BANKR. P. 7008(a). In turn, Rule 7012(b) requires that aresponsive pleading “admit or deny an allegation that the proceeding is core ornon-core. If the response is that the proceeding i[s] non-core, it shall include astatement that the party does or does not consent to entry of final orders orjudgment by the bankruptcy judge.” FED.R.BANKR.P. 7012(b).

2011] Errors in Judgment3. Adversary Proceedings to Determine Dischargeability ofStudent Loans 32In the course of an adversary proceeding to determinedischargeability of a student loan, the relevant inquiry requiredby the Code, as noted earlier, is to ascertain whether the debtorwould suffer an “undue hardship” unless relieved of theobligation to pay the student loan, along with other debts thedebtor is allowed to discharge in the bankruptcy proceeding. 33When faced with the question of how to prove undue hardship inan adversary proceeding, courts have not always been consistent,particularly since such determinations inherently depend on thefacts. 3432. Student loans are no small matter. According to a previewer of theEspinosa case then pending before the United States Supreme Court:The Espinosa drama unfolds against the backdrop of high valuestudent loan markets and high volume consumer bankruptcy dockets.According to amici curiae briefs filed by the Educational CreditManagement Corporation (ECMC) and the National Council of HigherLoan Programs (NCHELP), which operate or represent student loanorganizations, the total value of loans in the two federally supportedstudent loan programs as of September 2007 is approximately $500billion.Ferve E. Ozturk, Supreme Court Preview: United Student Aid Funds Inc. v.Espinosa, AM BANKR.INST.J., Sept. 2009, at 40, 41.33. 11 U.S.C. § 523(a) (2006). It is worth noting that the passage of theHigher Education Amendments of 1998, Pub. L. No. 105-244, eliminated theseven year “safe harbor” provision that had previously existed so that virtuallyall students loans are now nondischargeable absent a finding of unduehardship. Thomas Yerbich, Discharge of Student Loans: A Quandary, 23ALASKA BAR RAG 11, 11 (1999). Moreover, the Bankruptcy Abuse Preventionand Consumer Protection Act of 2005 (BAPCPA), Pub. L. No 109-8, § 220, 119Stat. 23, 59 (codified at 11 U.S.C. § 523(a)(8)(B)) amended the Code in 2005 toinclude most private students loans as among the types of student loans thatcannot be discharged absent proving undue hardship. Before the passage ofBAPCPA, these private student loans were automatically dischargeable inbankruptcy just as most other types of debts. See 11 U.S.C. § 523(a)(8); see alsoTestimony of Rafael I. Pardo, AM.BANK.INST.J.,Nov. 2009, at10, 10.34. See Anthony P. Cali, Note, The “Special Circumstance” of Student LoanDebt Under the Bankruptcy Abuse Prevention and Consumer Protection Act of2005, 52 ARIZ.L.REV. 473, 479 (2010).Although more than one test exists for determining unduehardship, the Brunner test has become the most widely accepted. . . .201

CHARLESTON LAW REVIEW [Volume 5Proving undue hardship is a tough hurdle for a debtor toovercome. 35 No statutorily prescribed definition describes whatconstitutes undue hardship under the Code; therefore, a debtorcannot have any sense of assurance when commencing anadversary proceeding as to how a court may rule. 36 This factorweighs heavily upon an already financially overwhelmed debtorwho must decide whether to incur the additional expense, time,and emotional stress to proceed with the prosecution of anadversary proceeding with its separate filing fees, service fees,legal fees, and other intangible encumbrances. 37 A debtor maywell decide at that point to take the risk of attempting todischarge the student loan debt as a part of the plan, although acircumspect court or observant creditor likely would be alert to202The Brunner test requires a three-part showing in order tosupport a finding of undue hardship. The debtor must demonstrate:(1) that the debtor cannot maintain, based on current income andexpenses, a “minimal” standard of living for herself and herdependents if forced to repay the loans; (2) that additionalcircumstances exist indicating that this state of affairs is likely topersist for a significant portion of the repayment period of the studentloans; and (3) that the debtor has made good faith efforts to repay theloans.Id. (internal citations omitted).35. Id. at 478–79 (“In interpreting the undue hardship standard, mostcourts have set the bar for dischargeability fairly high. As a result, studentloan debt is extremely difficult to discharge in bankruptcy proceedings.”) (citingJonathan D. Glatter, That Student Loan, So Hard to Shake, N.Y. TIMES, Aug.24, 2008, http://www.nytimes.com/2008/08/24/business/24loans.html (notingthat student loan debt is more difficult to get rid of than credit card or otherdebt)).36. There are two issues of particular concern with the process fordischarging student loans in bankruptcy. See Cali, supra note 34, at 479. First,the discharge standard for student loans for undue hardship is undefined by theBankruptcy Code. Id. Because it is a vague and indeterminate standard,concerns arise that similarly situated debtors will obtain different treatmentgiven the inherent subjectivity of the standard. Id. Second, for a debtor toobtain a discharge of student loans, the debtor must initiate an adversaryproceeding against the creditor—essentially, a full-blown lawsuit. Becausebringing such a proceeding requires substantial monetary resources, debtors inbankruptcy, already in financial distress, face additional hurdles in obtaining adischarge of their student loans. Id.37. See id.

2011] Errors in Judgmentsuch an effort and perhaps forestall it. 38 This practice ispopularly known as “discharge by declaration.” 39 The Court inEspinosa put its stamp of imprimatur upon “discharges bydeclaration” where the debtor failed to follow the Rules basedupon a finding that proper notice had been afforded to thecreditor in that case. 40B. Adversary Proceedings to Determine the Validity,Priority, or Extent of a LienRule 7001(2) of the Rules sets forth the procedure forconducting adversary proceedings “to determine the validity,priority, or extent of a lien or other interest in property.” 41Rather than initiating an adversary proceeding, a debtor mayattempt to have the validity, priority, or extent of a debtor’s lienor other interest in property dealt with through a provision in aplan proposed pursuant to Chapter 13 of the Code. 42 Indeed, thisissue presented itself in several cases decided by circuit courtsfacing the same notice issue posed by Espinosa. 43The Third Circuit case of In re Mansaray-Ruffin 44 concerneda debtor who attempted to invalidate a lien on her primaryresidence in her Chapter 13 plan apparently based upon thedebtor’s challenge to the “validity” of the creditor’s lien. 45 Thedebtor asserted in a letter to that creditor several months prior tofiling bankruptcy that the creditor had violated a provision of the38. Espinosa v. United Student Aid Funds, 553 F.3d 1193, 1197 (9th Cir.2008).39. The Third Circuit termed it “a controversial debtor tactic that has cometo be known as ‘discharge by declaration.’” In re Mansaray-Ruffin, 530 F.3d 230,240 (3d Cir. 2008).40. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. ___, ___, 130 S.Ct. 1367, 1381–82 (2010).41. FED.R.BANKR.P. 7001(2).42. E.g., In re Mansaray-Ruffin, 530 F.3d 230 (3d Cir. 2008).43. In Espinosa the debtor sought to discharge the interest on a studentloan debt by providing for payment of the principal only through the plan, andno adversary proceeding was held. Espinosa, 559 U.S. at ___, 130 S. Ct. at1374.44. Mansaray, 530 F.3d at 230.45. Id. at 235.203

CHARLESTON LAW REVIEW [Volume 5Truth In Lending Act (TILA). 46 No adversary proceeding wascommenced by the debtor to contest the validity of the creditor’slien. 47 The court affirmed the district court’s holding that thelienholder’s lien was not invalidated and passed through thedebtor’s bankruptcy unaffected by the fact that the debtor hadattempted to categorize the lien as an unsecured claim. 48 In itsopinion, the Mansaray court cites opinions from several of itssister circuit courts that have similarly required that anadversary proceeding be conducted in matters governed by Rule7001. 49 Then, the Supreme Court considered this issue inEspinosa.III. BANKRUPTCY NOTICE TO CREDITOR REQUIREMENTSDebtors are required to provide notice to creditors that abankruptcy proceeding has been commenced by preparing a “Listof Creditors.” 50 The Code further requires that any noticerequired to be given by a debtor to a creditor contain the name,address, and last four digits of the taxpayer identificationnumber of the debtor. 51 Also, if, within the ninety days beforethe commencement of a voluntary case, a creditor supplies thedebtor with at least two communications sent to the debtor withthe current account number of the debtor and the address atwhich such creditor requests to receive correspondence, then anyrequired notice must be sent to that address and mustinclude the account number. 52 The foregoing are just examples46. Id. at 232.47. Id. at 242.48. Id. at 243.49. See id. at 240–42 (discussing and citing In re Banks, 299 F.3d 296 (4thCir. 2002); In re Ruehle, 412 F.3d 679 (6th Cir. 2005); and In re Hanson, 397F.3d 482 (7th Cir. 2005)).50. 11 U.S.C. § 521(a)(1)(A) (2006) (“The debtor shall file a list ofcreditors.”).51. 11 U.S.C. § 342(c)(1) (2006) (“If notice is required to be given by thedebtor to a creditor under this title, any rule, any applicable law, or any order ofthe court, such notice shall contain the name, address, and last 4 digits of thetaxpayer identification number of the debtor.”).52. 11 U.S.C. § 342(c)(2)(A) (“If, within the 90 days before thecommencement of a voluntary case, a creditor supplies the debtor in at least 2204

2011] Errors in Judgmentof the numerous notice requirements contained in theCode. 53What impact, if any, does failing to follow the Rules preciselyhave upon a debtor if in fact the creditor did receive actual noticeof the bankruptcy through some mechanism? The noticerequirements specifically state that notice has to be “brought tothe attention of such creditor,” 54 and failure to notify the creditoraccording to a reasonable procedure established by the creditor“shall not be considered to have been brought to the attention ofsuch creditor until such notice is received . . . .” 55 How doescommunications sent to the debtor with the current account number of thedebtor and the address at which such creditor requests to receivecorrespondence, then any notice required by this title to be sent by the debtor tosuch creditor shall be sent to such address and shall include such accountnumber.”).53. See also Andrew P. MacArthur, Pay to Play: The Poor’s Problems in theBAPCPA, 25 EMORY BANKR. DEV. J. 407, 448–49 (2009) (discussing noticeprovisions in the BAPCPA).The BAPCPA [Bankruptcy Abuse Prevention and ConsumerProtection Act of 2005] dded multiple notice requirements. First, anynotice given to a creditor requires the debtor's name, last four digits ofhis or her taxpayer identification number, and address. Second, if inat least two communications within ninety days of the debtorinitiating a voluntary case the creditor provides the debtor with anaddress and account number, then the notice must be sent to theaddress provided and contain the account number. Third, in chapters7 and 13 cases, if a creditor files a notice of address with the court anddebtor, then the debtor must send any notices to that address effectivefive days after receiving that notice of address.The fourth notice requirement is similar to the third, but itinvolves chapter 7 and 13 cases pending in the courts and providesthat the debtor must use the creditor's notice of address effectivethirty days after receipt rather than five days. Fifth, § 342(c) was“amended to remove the old provision that . . . a failure by the debtorto supply notice to creditors in the prescribed form did not invalidatethe notice.” Finally, for notice to be effective, the notice has to beprovided in accordance with § 342 or “brought to the attention” of thecreditor. If the creditor has established a procedure that isreasonable, then notice that does not comply with that procedure isnot considered to be brought to the attention of the creditor.Id. (internal citations omitted) (omission in original).54. 11 U.S.C. § 342(g)(1) (2006).55. Id.205

CHARLESTON LAW REVIEW [Volume 5Espinosa impact this situation, if at all? If the creditor receives“actual notice” of the proceeding, will this be deemed “Mullane”notice? 56 Is this an opportunity for a debtor to get away with notlisting a creditor or to not properly notice a creditor as requiredby the Code when the debtor knows and can prove that a creditorhas actual notice?One could make the argument that so long as the creditorhad actual notice that the debtor filed bankruptcy, Mullane hasbeen satisfied and due process has been accorded to thecreditor. 57 But the consequences can be significant. Assumingthe debtor acted innocently and, thus, cannot be found to havecommitted a deliberate act of fraud, hindrance, or other bad act,the debtor still may not be able to gain a discharge of thatparticular debt. 58 The Code contains a provision enumeratingexceptions to discharge. 59 Among those exceptions is a provisionId.Id.(1) Notice provided to a creditor by the debtor or the court otherthan in accordance with this section (excluding this subsection) shallnot be effective notice until such notice is brought to the attention ofsuch creditor. If such creditor designates a person or an organizationalsubdivision of such creditor to be responsible for receiving noticesunder this title and establishes reasonable procedures so that suchnotices receivable by such creditor are to be delivered to such personor such subdivision, then a notice provided to such creditor other thanin accordance with this section (excluding this subsection) shall not beconsidered to have been brought to the attention of such creditor untilsuch notice is received by such person or such subdivision.56. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950).57. Id.58. 11 U.S.C. § 523(a)(3)(A)–(B) (2006):(A) if such debt is not of a kind specified in paragraph (2), (4), or(6) of this subsection, timely filing of a proof of claim, unless suchcreditor had notice or actual knowledge of the case in time for suchtimely filing; or(B) if such debt is of a kind specified in paragraph (2), (4), or (6) ofthis subsection, timely filing of a proof of claim and timely request fora determination of dischargeability of such debt under one of suchparagraphs, unless such creditor had notice or actual knowledge of thecase in time for such timely filing and request.59. Id.206

2011] Errors in Judgmentexcepting from discharge any debt not “listed or scheduled” undercertain circumstances. 60 Notably, this statute contains anexception to this requirement if the creditor “had notice or actualknowledge of the case in time” 61 to, essentially, protect its rightsin the case. 62IV. LEGAL VERSUS ACTUAL NOTICE IN ANALOGOUSTYPES OF PROCEEDINGSAt the heart of Espinosa was “whether the BankruptcyCourt’s order confirming Espinosa’s plan is ‘void’ under FederalRule Civil Procedure 60(b)(4) because the Bankruptcy Courtconfirmed the plan without complying with” 63 the requirement ofcommencing “an adversary proceeding by serving a summons andcomplaint on [United Student Aid Funds].” 64 Essentially, Unitedalleged that the confirmation order was void because Unitedfailed to receive notice “reasonably calculated, under all thecircumstances, to apprise [United] of the pendency of the actionand afford [United] an opportunity to present [its] objections.” 65The notice must be designed to communicate proper informationin a timely manner in order for the party to have a reasonableopportunity to appear and defend. 66 The Mullane Courtsurmised that the essential concern of due process is that partiesare given ample opportunity to defend their rights. 67Accordingly, the Mullane Court found that while notice bypublication in a local newspaper is adequate as to unknown60. 11 U.S.C. § 523(a)(3).61. 11 U.S.C. § 523(a)(3)(A).62. Id.63. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. ___, ___, 130 S.Ct. 1367, 1376 (2010).64. Id. at ___, 130 S. Ct. at 1376.65. Id. at ___, 130 S. Ct. at 1378 (quoting Mullane v. Cent. Hanover Bank& Trust Co., 339 U.S. 306, 314 (1950)).66. See Mullane, 339 U.S. at 314 (citing Milliken v. Meyer, 311 U.S. 457(1940); Grannis v. Ordean, 234 U.S. 385 (1914); Priest v. Trs. of Las Vegas,New Mexico, 232 U.S. 604 (1914); Goodrich v. Ferris, 214 U.S. 71 (1909); Rollerv. Holly, 176 U.S. 398 (1900)).67. Mullane, 339 U.S. at 313, 315.207

CHARLESTON LAW REVIEW [Volume 5persons, it is not adequate as to known persons. 68 Constructivenotice is not sufficient. 69In Espinosa, however, the Court was not saddled with theburden of constructive notice 70 because United received actualnotice. 71 Under the Rules, the notice and a copy of the plan weremailed to United by the clerk of the bankruptcy court. 72 The plancontained a boldface type warning of “deadlines for filing a proofof claim or an objection to the plan.” 73 United’s notice isuncontroverted because United acted upon that notice by filing aproof of claim, but it failed to file an objection to the plan or anobjection to the lack of filing an adversary proceeding. 74 United’snotice did not stop there. The Chapter 13 trustee also mailedUnited a notice of the confirmation of the plan and gave Unitedthirty days to dispute its treatment. 75 United took no action. 76The Court held that on the facts of United’s notice by the clerk ofthe bankruptcy court and the Chapter 13 trustee it had sufficientopportunity to contest Espinosa’s confirmation. 77Interestingly, the Court said that this actual notice trumpedthe legal notice required under Rule 7004(b)(3). 78 Espinosa68. Id. at 318.69. Id. at 312–13. But see Jones v. Flowers, 547 U.S. 220, 225 (2006)(“[D]ue process does not require actual notice[.]”).70. See Espinosa, 559 U.S. at ___, 130 S. Ct. at 1375 (2010) (“[T]he Court ofAppeals held that although Espinosa’s failure to serve United with a summonsand complaint before seeking a discharge of his student loan debt violated theBankruptcy Rules, this defect in service was not a basis upon which to declarethe judgment void because United received actual notice of Espinosa’s plan andfailed to object.”).71. Id. at ___, 130 S. Ct. at 1375.72. Id. at ___, 130 S. Ct. at 1374; FED.R.BANKR.P. 2002(b) (“[T]he clerk . .. shall give the debtor . . . not less than 25 days notice by mail . . . for filingobjections . . . .”); FED. R.BANKR. P. 2002(g)(2) (“[T]he notices shall be mailed tothe address shown on the list of creditors or schedule of liabilities . . . .”); FED.R.BANKR. P. 3015(d) (“The plan or a summary of the plan shall be included witheach notice of the hearing on confirmation mailed pursuant to Rule 2002.”).73. Espinosa, 559 U.S. at ___, 130 S. Ct. at 1374 (warning that the planmight damage the creditor’s rights).74. Id.75. Id.76. Id.77. Id. at ___, 130 S. Ct. at 1380.78. See id. at ___, 130 S. Ct. at 1378 (The Court stated that “Espinosa’s208

2011] Errors in Judgmentshould have filed an adversary proceeding, but the violation ofthe rule did not violate United’s due process. 79 There have beenother instances where, in certain types of cases, a party has notcomplied with the “legal” requirements of notice, yet a court hasdeemed directly or indirectly that the Mullane standard had beenmet. 80 On the other hand, there have been cases where theopposite result had occurred. 81 We will here look at three suchareas of law: service of process, equitable mortgages, and noticeof foreclosure.A. Service of Process1. Indiana—Actual Notice WinsIndiana courts have allowed an imperfect service of processto be valid where the defendant received actual notice of thecomplaint. 82 In Munster v. Groce, 83 David Groce, an employee ofBusiness World, Inc. (BWI), and Joe Munster were involved in anautomobile accident on February 25, 2000. 84 In July 2001, BWIfailure to serve United with a summons and complaint deprived United of aright granted by a procedural rule. . . . [but] this deprivation did not amount toa violation of United’s constitutional right to due process.”); FED. R.BANKR. P.7004(b)(3) (2006) (Service may be made “by mailing a copy of the summons andcomplaint to the attention of . . . any other agent authorized by appointment orby law to receive service of process . . . .”).79. Espinosa, 559 U.S. at ___, 130 S. Ct. at 1380 (“Given the Code’s clearand self-executing requirement for an undue hardship determination, the[b]ankruptcy [c]ourt’s failure to find undue hardship before confirmingEspinosa’s plan was a legal error. But the order remains enforceable andbinding on United because United had notice of the error and failed to object ortimely appeal.”) (internal citation omitted).80. See, e.g., Munster v. Groce, 829 N.E.2d 52, 56, 64 (Ind. Ct. App. 2005)(finding that although a copy of the summons was not mailed to the director, asrequired by Indiana legal requirements, service was still sufficient under theMullane test).81. See, e.g., Scullin v. Prudential Ins. Co. of Am., 421 So. 2d 470, 472 (La.Ct. App. 1982) ( “[N]o valid judgment can be rendered in any case where thedefendant has not been informed of the suit against him by citation in strictcompliance with the law.”).82. See Munster, 829 N.E.2d at 63–64.83. Id.84. Id. at 56.209

CHARLESTON LAW REVIEW [Volume 5was dissolved. 85 Then, on February 15, 2002, Munster filed suitagainst Groce and BWI. 86 Munster attempted to serve Groce andBWI twice by certified mail and once through the Secretary ofState. 87 Each time the mail was returned undelivered. 88Somehow, BWI’s former insurer learned of the lawsuit and filedan answer on behalf of Groce and BWI asserting the affirmativedefenses of lack of personal jurisdiction, insufficiency of process,and insufficiency of service of process in December 2003. 89Further, on January 22, 2004, Groce and BWI filed a motion todismiss based on insufficiency of process and insufficiency ofservice of process. 90Eventually, a private investigator hired by Munster servedthe summons and complaint on George Mikesell, a director listedon BWI’s Articles of Incorporation, by leaving the summons andcomplaint with Mikesell’s wife at his residence on January 26,2004, 91 although a copy of the summons was supposed to bemailed to the Mikesell residence pursuant to Indiana Trial Rule4.1(B). 92 The investigator called Mikesell the next day to makesure he received the summons and complaint. 93 Although thecomplaint was against and addressed only to the corporation,BWI, 94 service was made on Mikesell, one of three BWI85. Id.86. Id.87. Id.88. Id.89. Id.90. Id.91. Id.92. Id. at 63 (discussing Indiana Trial Rule § 4.1 (2010), available athttp://www.in.gov/judiciary/rules/trial_proc/index.html#_Toc244662878 (statingin part that service can be completed as to an individual under (A)(3) by“leaving a copy of the summons and complaint at his dwelling house or usualplace of abode,” but under (B) service must then be followed with “send[ing] byfirst class mail, a copy of the summons without the complaint to the last knownaddress of the person being served . . . .”)).93. Id. at 56.94. See id. at 62, available at http://www.in.gov/legislative/ic/code/title23/ar1/ch45.html. Although BWI had been dissolved before service wasaccomplished, Indiana Code Section 23-1-45-5(b)(5) allows service upondissolved corporations. Id.210

2011] Errors in Judgmentdirectors. 95In Munster, the Indiana Court of Appeals allowed validservice of process on a corporation where the plaintiff failed tomail a copy of the summons to the defendant after the plaintiffhad left a copy of the summons and complaint at the defendant’sresidence pursuant to Indiana Trial Rule 4.1(A)(3) 96 because therecord showed that it was undisputed that the process servercalled the defendant the next day to make sure he received thesummons and complaint. 97 The court held that where thedefendant does not dispute having actually received thesummons and complaint the service will not be deemedineffective. 98To make matters more interesting, the court had recentlyheld in Volunteers of America v. Premier Auto 99 that IndianaTrial Rule 4.6(A) requires that service be directed to an executiveofficer and not solely to the corporation. 100 Because of thistechnical legal faux pas, the court held that Premier Auto’sservice upon Volunteers of America was insufficient for personaljurisdiction. 101The court in Munster distinguished the holding in Volunteersof America on the basis that in Volunteers of America the servicewas made by mail and no executive officer of Volunteers ofAmerica received actual notice. 102 On the contrary, service inMunster was hand-delivered, and the executive officer of BWIreceived actual notice. 103 Because of the actual notice, the courtignored the plain language of Indiana Trial Rule 4.6(A) and95. Id.96. Id. at 63.97. Id.98. Id. (citing Boczar v. Reuben, 742 N.E.2d 1010, 1016 (Ind. Ct. App.2001)).99. 755 N.E.2d 656 (Ind. Ct. App. 2001).100. Volunteers of Am. v. Premier Auto, 755 N.E.2d 656, 660 (Ind. Ct. App.2001) (citing Northwestern Nat’l Ins. Co. v. Mapps, 717 N.E.2d 947, 953 (Ind.Ct. App. 2001)).101. Id.102. Munster, 829 N.E.2d at 63–64.103. Id. at 64.211

CHARLESTON LAW REVIEW [Volume 5validated the service. 104In addressing Mullane concerns, the court said that “themethod of service on BWI was reasonably calculated so as toprovide it with notice of the lawsuit and, therefore, comports withthe Due Process Clause.” 105 Actual notice ruled the day,trumping the legal deficiencies. 1062. Louisiana—Legal Notice WinsIn Louisiana, actual notice was not enough to bring thedefendant under the jurisdiction of the court. 107 In Scullin v.Prudential Insurance Co., 108 the Louisiana Court of Appeals heldthat a defendant’s actual knowledge of the substance of acomplaint did not validate the failure of the plaintiff to properlyserve the complaint. 109 On December 4, 1979, Kenneth Scullinfiled suit against Prudential Insurance Co. and “Richard Roe,”unidentified defendant. 110 On March 21, 1980 Scullin filed hisfirst amended complaint naming Robert Bridgewater as “RichardRoe.” 111 This first amended complaint was served onBridgewater without attaching a copy of the original complaintthat was filed on December 4, 1979. 112 However, the firstamended complaint did incorporate the original complaint byreference. 113 On May 7, 1980, a default judgment was taken onthe first amended complaint. 114 On June 16, 1980, Scullin filed asecond amended complaint that again was served on Bridgewaterwithout a copy of the original complaint and again incorporatedthe original complaint by reference. 115 On June 25, 1980,104. Id.105. Id. (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,314 (1950)).106. Id.107. Scullin v. Prudential Ins. Co., 421 So. 2d 470, 472 (La. Ct. App. 1982).108. 421 So. 2d 470.109. Id. at 472.110. Id. at 471.111. Id.112. Id.113. Id.114. Id.115. Id.212

2011] Errors in JudgmentBridgewater filed an exception to the complaints for failure toobtain proper service. 116 Eventually, the second amendedcomplaint was dismissed, and the default judgment on the firstamended complaint was vacated. 117 Scullin appealed. 118Scullin contended that the first amended complaint wasenough to put Bridgewater on notice that there was an actionagainst him, especially since Bridgewater had actual notice of thecontents of the first amended complaint even before it was servedon him. 119 However, the court disagreed, citing Article 1201 ofthe Louisiana Code of Civil Procedure, which states: “Citationand service thereof are essential in all civil actions exceptsummary and executory proceedings. Without them allproceedings are absolutely null.” 120 The court stated that actualknowledge of a suit cannot be substituted for legally sufficientservice of process. 121 The Scullin court did not specificallyaddress Mullane, but the concerns regarding adequate noticewere the same. 122 The court stated that “[i]t is a fundamentalprinciple of our law that no valid judgment can be rendered inany case where the defendant has not been informed of the suitagainst him by citation in strict compliance with the law.” 123B. Equitable MortgagesSome states use the concept of equitable mortgages to allowactual notice to prevail over legal strictures. 124 All states havestatutes that deal with the priorities of interests taken in realproperty. 125 There are three general types of recording statutes:116. Id.117. Id. at 471–72.118. Id. at 472.119. Id.120. Id.121. Id.122. Id.123. Id.124. See Handler Constr., Inc v. CoreStates Bank, N.A., 633 A.2d 356, 361,364 (Del. 1993).125. See Charles Szypszak, Real Estate Records, the Captive Public, andOpportunities for the Public Good, 43 GONZ. L.REV. 5,24(2008)(discussing thereasons for having recording statutes and describing the three types of213

CHARLESTON LAW REVIEW [Volume 5notice, 126 race-notice, 127 and race. 128 In a notice state, a bona-fidepurchaser who gives value for the interest in land without actualnotice of a prior unrecorded mortgage has priority over theunrecorded mortgage. 129 In a race-notice state, a bona-fidepurchaser who gives value for the interest in land without actualnotice of a prior unrecorded mortgage has priority over theunrecorded mortgage only if the bona-fide purchaser records hermortgage first. 130 In a race state, the first person to record haspriority over all others. 131In race states, notice is not supposed to matter. 132 Whoeverrecords first is supposed to have priority as the plain language ofthe statutes clearly states. 133 However, such “pure” race statutesrecording statutes).126. Id.127. Id.128. Id.129. Id.130. Id.131. Id.132. See id.133. Only three states have race statutes: Delaware, Louisiana, and NorthCarolina. See 25 DEL. CODE tit. 25, § 2106 (2010), available at http://delcode.delaware.gov/title25/c021/index.shtml:214A mortgage, or a conveyance in the nature of a mortgage, of lands ortenements shall have priority according to the time of recording it inthe proper office, without respect to the time of its being sealed anddelivered, and shall be a lien from the time of recording it and notbefore.Id.LA. CIV. CODE art. 3338 (2010), available at http://www.legis.state.la.us/lss/lss.asp?doc=110389:The rights and obligations established or created by the followingwritten instruments are without effect as to a third person unless theinstrument is registered by recording it in the appropriate mortgageor conveyance records pursuant to the provisions of this Title:(1) An instrument that transfers an immovable or establishes areal right in or over an immovable.(2) The lease of an immovable.(3) An option or right of first refusal, or a contract to buy, sell, orlease an immovable or to establish a real right in or over animmovable.(4) An instrument that modifies, terminates, or transfers therights created or evidenced by the instruments described in

2011] Errors in Judgmentcan produce some very inequitable results, and courts sometimesstep in to prevent injustices, especially where a third party hasactual notice of the encumbrance against the property. 134 Suchwas the case in Hice v. Hi-Mil, Inc., 135 where the Supreme Courtof North Carolina held that a recorded deed could be reformedwhere the purchaser of the property had actual notice that thedeed should not have included the homeplace of the plaintiff. 136In Hice, the plaintiff Johnsie Hice, recently a widow, transferredfor value a tract of land containing 900 to 1,200 acres of land totwo buyers in 1971, one of whom was the plaintiff’s first cousinby marriage, Ray Hice. 137 The plaintiff’s attorney, who preparedthe deeds for the transfer, mistakenly included a 13-acre tract ofthe 25-acre homeplace of the plaintiff. 138 The deeds were dulyrecorded. Ray Hice later bought out the other buyer in 1973 andin that same year formed Hi-Mil, Inc. with a third buyer, JackMiller. 139 Ray Hice transferred the property to Hi-Mil, Inc. 140Both Ray Hice and Miller owned fifty percent of the corporationSubparagraphs (1) through (3) of this Article.Id.N.C. GEN. STAT. § 47-18(a) (2010), available at http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_47/GS_47-18.html:Id.No (i) conveyance of land, or (ii) contract to convey, or (iii) optionto convey, or (iv) lease of land for more than three years shall be validto pass any property interest as against lien creditors or purchasersfor a valuable consideration from the donor, bargainer or lesser butfrom the time of registration thereof in the county where the land lies,or if the land is located in more than one county, then in each countywhere any portion of the land lies to be effective as to the land in thatcounty. Unless otherwise stated either on the registered instrument oron a separate registered instrument duly executed by the party whosepriority interest is adversely affected, (i) instruments registered in theoffice of the register of deeds shall have priority based on the order ofregistration as determined by the time of registration . . . .134. See Hice v. Hi-Mil, Inc., 273 S.E.2d 268, 272–73 (N.C. 1981).135. 273 S.E.2d 268 (N.C. 1981).136. Id. at 272.137. Id. at 269.138. Id.139. Id. at 269–70.140. Id. at 270.215

CHARLESTON LAW REVIEW [Volume 5and served as officers and directors; however, Ray Hice had soldmost of his shares of Hi-Mil, Inc. to Miller before the plaintiffbrought her action for reformation. 141 In 1977, the mistake wasdiscovered, and in 1978, the plaintiff brought her action. 142Under the race statute, the issue of who owned the 13-acretract of land should have been settled with the filing of thedeed; 143 however, the court used its equitable powers to disregardthe direct effect of the statute. 144 Notice and race-notice statutesexplicitly provide the contingency of dealing with a bona fidepurchaser without knowledge of a mistake in the deed. 145 Racestatutes make no such provision. 146 Yet the Hice court held thatbecause Ray Hice, as an officer and director of Hi-Mil, Inc. at thetime he transferred the property to Hi-Mil, Inc., had actualknowledge of the mistake in the deed, Ray Hice’s knowledge wasimputed to Hi-Mil, Inc. 147 Therefore, Hi-Mil, Inc. had actualknowledge and could not be a bona fide purchaser withoutknowledge. 148 Again, actual notice ruled the day, trumping legaldeficiencies. 149The same result was had in the Delaware case of HandlerConstruction, Inc. v. CoreStates Bank, 150 where a mortgage inimproper form was recognized as an equitable mortgage andgiven full legal effect because the subsequent filer of a legallyvalid mortgage had actual and constructive notice of themortgage in improper form. 151 In Delaware, a valid mortgage atlaw must be sealed. 152 Furthermore, Delaware is a race-notice141. Id.142. Id.143. Id. at 270–73.144. Id.145. See supra note 125 and accompanying text.146. See supra notes 125 & 133 and accompanying text.147. Hice, 273 S.E. 2d at 272.148. Id.149. Id.150. 633 A.2d 356, 358 (Del. 1993).151. Handler Construction, Inc. v. CoreStates Bank, 633 A.2d 356, 367 (Del.1993).152. Monroe Park v. Metro. Life Ins. Co., 457 A.2d 734, 737 (Del. 1983).216

2011] Errors in Judgmentstate. 153 In Handler, CoreStates Bank (CoreStates) sought toforeclose on an unsealed recorded mortgage; 154 however, HandlerConstruction, Inc. (Handler) was the assignee of a sealedmortgage on the same property recorded subsequent to theCoreStates mortgage. 155 Handler filed its assignment fifteenminutes before CoreStates’ foreclosure sale and then attendedthe sale itself. 156 Handler then filed an action at law to nullifyCoreStates’ mortgage, but, after that, CoreStates filed a motionin chancery court to confirm its foreclosure sale and to dischargeHandler’s mortgage. 157 CoreStates’ motion was granted, 158 andHandler appealed. 159Handler’s contention was that since CoreStates’ mortgagewas not sealed as required by law, Handler had the first validlyrecorded mortgage. 160 Further, even if CoreStates’ mortgage wasconsidered a valid equitable mortgage, the chancery court lackedthe authority to discharge Handler’s valid legal mortgage. 161Under Delaware’s race statute, actual notice should beirrelevant, and the first to file wins; 162 however, the chancerycourt’s language seems to indicate otherwise. 163 The court heldthat CoreStates had a valid and enforceable equitable mortgagebecause Handler had both actual and constructive notice of theequitable mortgage. 164 While the court did not cite Mullane, thecourt did use notice concepts similar to Mullane, stating that anunsealed mortgage “provides ‘clear and undoubted’ notice of theprior lien interest of the first mortgagee.” 165153. Handler, 633 A.2d at 366.154. Id. at 358.155. Id.156. Id.157. Id. at 359.158. Id.159. Id. at 360.160. Id. at 363.161. Id. at 364.162. Id. at 366.163. See id. at 367.164. Id.165. Id. at 365 (quoting Hall v. Livingston, 3 Del Ch. 348, 396 (1869)).217

CHARLESTON LAW REVIEW [Volume 5Louisiana is a civil law state, but it does recognize equitablemortgages from common law states. 166 However, the authorscould not find a Louisiana case that concerned actual notice andlegal notice.C. Foreclosure Notice1. Actual Notice WinsColorado courts demonstrate that notice of foreclosure isanother area in which actual notice has prevailed where legalnotice seems to be required. 167 The Colorado Court of Appealsheld in Amos v. Aspen Alps 123 168 that failure of a bank to strictlycomply with the notice requirement of the foreclosure statute didnot nullify a foreclosure sale where an estate received actualnotice of the foreclosure sale. 169 In Amos, Betty G. Amos and herdeceased husband, Thomas Righetti, were the signers of amortgage to Equitable Bank. 170 Righetti died in 2002, and Amosand Brandy Righetti, Righetti’s daughter, were appointed copersonalrepresentatives. 171 Righetti’s interest was being heldunder his estate. 172 In 2006, Equitable Bank sought to forecloseon the mortgage because of an undisputed default. 173 Under Rule120 of the Colorado Rules of Civil Procedure (C.R.C.P.), a publictrustee is required to give fifteen days’ notice to all parties ofrecord, and the notice must be in strict compliance. 174 WhileAmos received notice in her individual capacity, neither Amosnor Brandy Righetti received notice in their capacities as co-166. Gates v. Gaither, 15 So. 50, 53 (La. 1894).167. Amos v. Aspen Alps 123, No. 08-CA-2009, 2010 WL 27401, at *4 (Colo.App. Jan. 7, 2010).168. Id. at *2.169. Id.170. Id. at *1.171. Id.172. Id.173. Id.174. Id. at *4 (citing Dews v. District Court, 648 P.2d 662, 664 (Colo. 1982)(holding the foreclosures under C.R.C.P. 120 require strict compliance to thenotice requirement)).218

2011] Errors in Judgmentpersonal representatives of the estate. 175 The foreclosure salewas held, but afterward Amos attempted to redeem the propertyand failed because the redemption payment was tendered out oftime. 176 Amos then sued to have the sale overturned based onfailure to give proper notice to the estate under C.R.C.P. 120. 177The court held that the foreclosure sale did not have to beoverturned because, although Amos did not receive notice instrict compliance with C.R.C.P. 120, the estate had receivedactual notice of the foreclosure sale through Amos and was notprejudiced by the lack of strict compliance. 178 The court did notspecifically cite Mullane; however, one of the principal cases usedto justify its decision, Lehner v. United States, 179 cites Mullanefor the proposition that even where a state has a strictcompliance foreclosure statute, a foreclosure sale will not beoverturned where the mortgagor received actual notice, whichgave the mortgagor an opportunity to come and defend againstthe sale. 180 Thus, Aspen Alps evinces that actual notice satisfiesthe Mullane standard and trumps the failure to legally complywith a statutory mandate. 1812. District of Columbia—Legal Notice WinsThe District of Columbia has a different view of compliancewith notices of foreclosure. 182 The District has a policy ofconstruing such notices in favor of the homeowner. 183 In Bank-Fund Federal Credit Union v. Cuellar, 184 the court held that anotice of foreclosure was deficient because the mortgagee failedto include the amount needed to cure the default in the notice of175. Id. at *1.176. Id.177. Id.178. Id. at *4.179. Lehner v. United States, 685 F.2d 1187, 1191 (9th Cir. 1982).180. Aspen Alps, 2010 WL 27401, at *6 (citing Lehner, 685 F.2d at 1190–91).181. Id.182. See, e.g., Bank-Fund Staff Fed. Credit Union v. Cuellar, 639 A.2d 561,563 (D.C. 1994).183. See id. at 570 (citing Independence Fed. Sav. Bank v. Huntley, 573A.2d 787, 788 (D.C. 1990)).184. 639 A.2d 561 (D.C. 1994).219

CHARLESTON LAW REVIEW [Volume 5foreclosure, even though the mortgagor had actual notice of theamount needed to cure. 185 In Cuellar, the Vivados, themortgagors, bought a single-family home in 1983 and were indefault by 1990. 186 On May 4, 1990, Bank-Fund, the mortgagee,started foreclosure proceedings and mailed proper notice to theVivados. 187 Included in the notice was the amount needed to curethe default: $46,397.73, plus expenses. 188 The foreclosure salewas set for June 6, 1990 but was stopped by an automatic stayin bankruptcy court. 189 Bank-Fund had the automatic staymodified and, again, proceeded with the foreclosure. 190 Themortgagee sent another notice to the Vivados; however, this timeit did not list an amount needed to cure the default because iterroneously believed that the property was being inhabited bynon-family members and, therefore, was rental property. 191 Aforeclosure sale was held on October 3, 1990, at which Bank-Fund purchased the property. 192 In April 1991, Bank-Fund filedsuit against the Vivados as wrongful holdovers, having failed tovacate the premises after the foreclosure sale. 193 The Vivadoscountered that the foreclosure was defective because they hadnot been given an amount to cure. 194 Bank-Fund responded that,although it did not give the Vivados an amount to cure in thesecond notice, it had given them the correct amount in the firstnotice. 195 The court held that, even though the Vivados hadactual notice, the policy of the court was to require strictcompliance to the notice statute; therefore, the foreclosure sale185. Bank-Fund Fed. Credit Union v. Cuellar, 639 A.2d 561, 570 (D.C.1994). In this case, the mortgagee also erroneously told the mortgagors thatthey did not have the right to cure but that issue was dealt with separately inthe opinion as an independent reason for holding in favor of the mortgagors. Id.186. Id. at 564.187. Id.188. Id.189. Id.190. Id.191. Id. at 564–67.192. Id. at 564–65.193. Id. at 565.194. Id.195. Id.220

2011] Errors in Judgmentwas nullified. 196V. A SCHWAB-ESPINOSA ANALYSISLess than three months after the United States SupremeCourt issued its ruling in Espinosa, the Court rendered anopinion in Schwab v. Reilly 197 on June 17, 2010, which in somerespects may be construed as dampening the impact of Espinosa.A. Schwab FactsIn Schwab, the debtor, Nadejda Reilly (Reilly) ran a cateringbusiness that led to her filing a Chapter 7 bankruptcy. 198 Shelisted her assets on Schedule B of the bankruptcy forms, whichincluded an itemized list of business equipment from her cookingbusiness with an estimated market value of $10,718. 199 OnSchedule C, Reilly claimed exemptions of $1,850 under thecategory of “implements, professional books, or tools, of [the]trade” and another $8,868 for equipment under the “wildcard”provision, both totaling $10,718; the same amount as the value ofher equipment on Schedule B. 200 In neither exemption categorydid she exceed the amount allowable within that exemptioncategory. 201 Before the completion of the meeting of creditors, anappraiser informed the Chapter 7 trustee, William G. Schwab,that the estimated value of the equipment was no less than$17,000. 202 Furthermore, during the meeting of creditors,Schwab informed Reilly of his intentions to sell her businessequipment, which Reilly vehemently protested. 203Rule 4003(b)(1) gives the trustee thirty days from theconclusion of the meeting of creditors to file any objections to196. Id. at 575.197. 560 U.S. ___, 130 S. Ct. 2652 (2010).198. Schwab v. Reilly, 560 U.S. ___, 130 S. Ct. 2652, 2657 (2010).199. Id.200. Id. at ___, 130 S Ct. at 2657–58.201. Id. at ___, 130 S. Ct. at 2657.202. Id. at ___, 130 S. Ct at 2671 (Ginsburg, J., dissenting).203. Id. at ___, 130 S. Ct. 2671 n.3.221

CHARLESTON LAW REVIEW [Volume 5exemptions. 204 Under §522(l) the trustee is required to file anobjection within the thirty-day period, or the property will beexempt. 205 Schwab failed to file his objection motion to allow himto auction the equipment within the thirty-day period. 206 Reillycontested the motion and filed a conditional motion saying shewanted her case dismissed if she had to sell her equipment. 207The bankruptcy court denied Schwab’s motion to auction theequipment and also denied Reilly’s conditional motion todismiss. 208 Both the district court and the Third Circuit agreedwith Reilly. 209 The rationale of the Third Circuit was thatSchwab was put on notice that Reilly intended to exempt all ofher equipment when she exempted the total value of theequipment on schedule C. 210 Therefore, Schwab was required toobject to the exemption within the thirty-day period in Rule4003(b)(1). 211B. United States Supreme Court DecisionThe United States Supreme Court disagreed with the lowercourts and reversed the bankruptcy court decision. 212 The Courtsaid that the Third Circuit failed to use the correct definition of“property” in § 522(l). 213 Whereas the Third Circuit defined theproperty as “the asset itself,” 214 the Court said that § 522(b)defines property as the debtor’s “interest” up to a specifiedamount within any particular category of exemptible assets. 215The Court then concluded that the debtor’s interest in theproperty is what the debtor estimated the value to be, in this case222204. FED.R.BANKR.P. 4003(b)(1) (2006).205. Schwab, 560 U.S. at ___, 130 S. Ct. at 2658.206. Id.207. Id.208. Id. at ___, 130 S. Ct. at 2659.209. Id.210. Id.211. Id.212. Id. at ___, 130 S. Ct. at 2659.213. Id. at ___, 130 S. Ct. at 2661–63.214. Id. at ___, 130 S. Ct. at 2661–62.215. Id. at ___, 130 S. Ct. at 2661–63.

2011] Errors in Judgment$10,718. 216 However, the true value may be more than the debtorestimated, in this case the $17,000 appraisal. 217 The Courtreasoned that the only interest the debtor had in the propertywas the $10,718 she claimed as an exemption. 218 Therefore, thetrustee had no notice that she was claiming the entire value ofthe property. 219 The debtor simply claimed the exemption valueof her interest in the property that was allowable by law. 220 TheCourt said that because the amounts claimed as exemptions onSchedule C were within the allowable amounts, the trustee hadno duty to file an objection to the exemption simply because thetotal amount claimed on Schedule C was identical to the totalamount claimed on Schedule B. 221 The Court stated that in orderto put the trustee on notice that she was claiming the entirevalue of the property, she must use clear language, such as, “‘fullfair market value’ or ‘100% of FMV.’” 222C. Schwab ImpactIn Espinosa, the Court held that even though the debtorshould have instituted an adversary proceeding to discharge theinterest on his student loan, failure to institute the adversaryproceeding was harmless error because the creditor was put onactual notice by putting the discharge of his student loan interestin the plan, thereby obligating the creditor to object to thedischarge of the student loan interest prior to the confirmation ofthe plan. 223 In Schwab, the Court held that even though thedebtor gave the Chapter 7 trustee actual notice that the propertyinterest she planned to exempt was the same as the property’sestimated value and that the total value of the property waslikely more than the debtor was claiming, this actual notice was216. Id. at ___, 130 S. Ct. at 2661–62.217. Id. at ___, 130 S. Ct. at 2671 (Ginsburg, J., dissenting).218. Id. at ___, 130 S. Ct. at 2671–72.219. Id. at ___, 130 S. Ct. at 2669 (majority opinion).220. Id. at ___, 130 S. Ct. at 2661.221. Id. at ___, 130 S. Ct. at 2662.222. Id. at ___, 130 S. Ct. at 2668.223. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. ___, ___, 130 S.Ct. 1367, 137778 (2010).223

CHARLESTON LAW REVIEW [Volume 5legally insufficient. 224 Thus, the Chapter 7 trustee was notobliged to object to the debtor’s exemption of property withinthirty days after the meeting of creditors. 225As we study the holdings of the Court in both cases, itbecomes clear that the essential nature of each case is whetherthe party potentially obligated to file an objection was givensufficient notice to trigger their objection obligation. Espinosaclearly rests on the notice issue because its holding is based uponMullane, 226 in that the notice in Espinosa was reasonablycalculated under the circumstances to warn United to act. 227Schwab is not so clearly a notice case at first glance, but it comesinto focus with proper scrutiny. 228Initially in Schwab, the Court talks about the definition ofproperty being the key to the resolution of this case; that is,whether property is the “asset itself” or an “interest” in thething. 229 The question here must be asked: “Why does the Courtneed to define property?” The answer is so that the Court candetermine whether the trustee was put on fair notice that Reillywas intending to exempt the entire value of the property. So,while the Court is overtly discussing the definition of property, itis covertly laying the foundation to determine adequate notice. 230If the Court had agreed with Reilly that the property was thething itself, as opposed to the interest in the disputed thing, thenthe fact that Reilly claimed the exemption value and the currentmarket value to be identical would have been fair warning to thetrustee that Reilly was claiming the full value of the property asexempt. 231 However, because the Court describes the property asthe debtor’s interest, the property is now bifurcated into theamount the debtor can claim as exempt, which is all she isentitled to, and the balance of the current market value, which is224224. Schwab, 560 U.S. at ___, 130 S. Ct. at 2677.225. Id.226. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950).227. Espinosa, 559 U.S. at ___, 130 S. Ct. at 1378.228. E.g., Schwab, 560 U.S. ___, 130 S. Ct. 2652.229. Id. at ___, 130 S. Ct. at 2659–64.230. Id. at ___, 130 S. Ct. at 2661–64.231. Id. at ___, 130 S. Ct. at 2660–61.

2011] Errors in Judgmentwhat the general unsecured creditors are entitled to. 232The troubling aspect of Schwab is the way the Courtdevalues actual notice. If all that was present in Schwab werethe facts and figures on Schedules B and C, then it would beunderstandable for the Court to assert that the trustee couldhave missed the nuanced implication that the amounts onSchedule B being equal to the amount on Schedule C meant thatthe debtor was taking an exemption in the entire property.However, the Court ignores the most potent factors that shouldhave led the trustee to know that Reilly was claiming anexemption in all of the property. 233 First, an appraiser told thetrustee that the property was undervalued. 234 Secondly, andmost importantly, the debtor told the trustee that she wasclaiming all of the property as exempt. 235 Failure of the Court toaddress the facts of actual notice to the trustee of Reilly’sintention to claim the entire value of the equipment coupled withthe trustee’s actual knowledge that the property may beundervalued on Schedule B seems almost surreal. When thetrustee informed Reilly at the meeting of creditors that he wasgoing to ask the bankruptcy court to allow him to auction theproperty, Reilly protested vehemently and stated unequivocallythat she wanted to exempt the entire value of the equipment. 236These facts are discussed in the dissent, 237 but the majoritytreats these most salient facts as the elephant in the room. Themajority mentions seemingly reluctantly the fact that the trusteeknew of the appraisal but then does not give the total picture. 238The majority says that the trustee knew about the appraisalbefore the end of the thirty-day period for objections, 239 but infact he knew about the appraisal before the thirty-day periodbegan. 240 Instead of broadening the scope of actual notice, the232. Id. at ___, 130 S. Ct. at 2661–62.233. Id. at ___, 130 S. Ct. at 2671–73 (Ginsburg, J., dissenting).234. Id. at ___, 130 S. Ct. at 2671.235. Id. at ___, 130 S. Ct. at 2672.236. Id. at ___, 130 S. Ct. at 2671 n.3.237. See id. at ___, 130 S. Ct. at 2671–72.238. Id. at ___, 130 S. Ct at 2658 (majority opinion).239. See id. at ___, 130 S. Ct. at 2658 n.2.240. See id. at ___, 130 S. Ct. at 2671 n.3 (Ginsburg, J., dissenting).225

CHARLESTON LAW REVIEW [Volume 5same Court in the same term beat a hasty retreat. It appearsthat the Court is obscuring facts in order to reach a preconceivedconclusion.In addition, by holding that the property of the debtor is aninterest, thereby narrowing the scope of notice, the Court alsodoes damage to the concept of a fresh start. 241 Because theproperty is bifurcated, the thirty-day notice only applies to theportion claimed as exempt by the debtor, and puts no timerestraint to objecting to the valuation of the property until thedebtor has received a discharge. 242 This uncertainty may causedebtors problems reorganizing and starting anew because, asJustice Ginsburg points out, the debtor may not be able to accepta job that requires transportation if the debtor does not know ifthe debtor’s car will be taken. 243VI. CONCLUSIONThe United States Supreme Court has spoken. It is not clearwhether the issue has been laid to rest. Time, of course, will tell.Yet, it appears that Mullane is the standard for determiningwhether a creditor is deemed to have received notice inbankruptcy cases—at least with respect to issues that mighthave been resolved in an adversary proceeding but were not, andwhere the creditor had actual notice that it should take steps toprotect its rights. 244 Whether this case will affect otherbankruptcy proceedings is not clear. Whether these principleswill be applied further outside of a bankruptcy context is alsounclear.What is clear is that creditors have been put on notice—although notice requirements may not have been complied withlegally, that is, in full compliance with the provisions of thebankruptcy laws—if they actually know that a debtor has filedbankruptcy, they should diligently proceed to protect their226241. Id. at ___, 130 S. Ct. at 2674–75.242. See id.243. Id. at ___, 130 S. Ct. at 2674.244. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950).

2011] Errors in Judgmentrights. 245Debtors, nonetheless, should not become complacent. As theauthors’ analysis of Schwab demonstrates, there is at least anindication that the Court may view varying circumstancesthrough a lens that may appear inconsistent with prior rulings.With so much potentially at stake, debtors should not want theircase, with all that may be hanging in the balance, to be the testcase that provides a basis for distinction and departure from theprinciples of Espinosa.245. E.g., United Student Aid Funds, Inc. v. Espinosa, 559 U.S. ___, 130 S.Ct. 1367 (2010).227

TAX ASPECTS OF RESTRUCTURINGFINANCIALLY TROUBLED PARTNERSHIPSAND LLCS (WITH A FEW THOUGHTS ONSUBCHAPTER S CORPORATIONS)David B. Newman I. INTRODUCTION ............................................................... 230II. DEBT MODIFICATIONS ................................................... 231A. Changes in Obligor or Security ................................... 232B. Changes in Yield of Debt Instrument ......................... 233C. Changes in Time of Payments ..................................... 234D. Alteration in the Nature or Characterizationsof the Instrument ......................................................... 235E. Changes in Accounting or Financial Covenants ......... 238III. TAX CONSEQUENCES OF MODIFICATIONS .............. 238A. Tax Consequences to Significant Modifications ofDebt Instruments ......................................................... 239B. Publicly Traded Debt vs. Non-Publicly Traded Debt . 241C. Contingent Payments on New Debt ............................ 243IV. TRANSFER OF PARTNERSHIP INTEREST INSATISFACTION OF A PARTNERSHIP DEBT ................ 245A. Participation Interest by Creditor Without Changeto Partner Status ........................................................ 247 David B. Newman is a tax attorney in private practice. He is a graduate ofNew York University, BS, in accounting and finance, 1962; Cornell Law School,JD, 1965; New York University School of Law, LLM Taxation, 1970; HarvardBusiness School, Advanced Management Program, 1986. He was a ManagingDirector at Bankers Trust Company (now Deutsche Bank) and Bank of Americain Capital Markets and Investment Banking for more than 33 years. He alsoworked for the Office of Associate Chief Counsel (International) IRS inWashington, D.C. Mr. Newman has written “Taxation of Financially DistressedBusinesses” and was a co-editor of “Taxation of Financial Instruments.” He hasalso authored a number of tax articles and has been a guest lecturer at HarvardLaw School, Cornell Law School, and various tax/business forums.229

CHARLESTON LAW REVIEW [Volume 5B. Transfer of Property Subject to NonrecourseIndebtedness ................................................................. 248C. Transfer of Property Subject to RecourseIndebtedness ................................................................. 249D. Timing of Cancellation of Debt .................................... 250E. Allocation of Cancellation of Indebtedness Incometo Partners .................................................................... 250F. Partner’s Acquisition of Partnership Debt fromLender ........................................................................... 253V. EXCLUSIONS OF CANCELLATION OFINDEBTEDNESS INCOME UNDER § 108 ...................... 256A. Purchase Price Adjustment Rule of § 108(e)(5) .......... 257B. Qualified Real Property Business Indebtedness(QRPBI)......................................................................... 258C. Attribute Reduction and § 1017(b)(3) .......................... 260D. Conversion of Distressed Partnership to a CCorporation ................................................................... 261VI. FINANCIALLY DISTRESSED S CORPORATIONS ....... 264A. Indebtedness Contributed to Capital .......................... 265B. Identity of a Lender ...................................................... 266C. Reacquisition of Debt Instruments ............................. 266D. Ordinary Income/Capital Gains Issues ....................... 267VII. CONCLUSION ..................................................................... 268I. INTRODUCTIONGiven the severe economic conditions over the last few years,taxpayers and their advisors are faced with a whole host ofeconomic and tax choices relating to the restructuring of troubledpartnerships, two or more member LLCs that operate inpartnership form for federal income tax purposes, andSubchapter S corporations. This Article will focus on the taxaspects of restructuring financially troubled partnerships andtwo or more member LLCs that carry on business as apartnership for tax purposes—with a few comments onSubchapter S corporations, primarily to note the difference in taxconsequences between a Subchapter S corporation and apartnership.230

2011] Tax Aspects—Financially Troubled EntitiesThere are many possible fact patterns whereby partnershipsand LLCs can undertake activities, modify instruments, orrestructure their affairs so that significant tax issues arise.Some of these transactions can pertain to debt modifications.Other transactions can be associated with the transfer ofproperty to a creditor to reduce either nonrecourse or recoursedebt, the sale of property by a debtor to a third party (and the useof the sales proceeds to retire debt), the purchase of nonrecoursedebt by one of the partners from the lender, and the admission ofnew investors, either as partners or non-partners. Still otherscan be associated with the exchange of a partnership interest insatisfaction of a portion of partnership debt. This Article willhighlight some of these situations and focus on the taxramifications for the debtor group and creditors. For purposes ofthis discussion, a two-member LLC that functions as apartnership for federal income tax purposes will be considered asa partnership.II. DEBT MODIFICATIONSA typical feature relating to the plight of a financiallytroubled partnership is some type of debt modification.Depending on the significance of such modification, serious taxramifications can arise.Section 61 of the Internal Revenue Code (Code) states thatgross income means all income derived from any source. 1 InCottage Savings Ass’n v. Commissioner, the Supreme Court heldthat there was a taxable exchange where two savings and loaninstitutions actually exchanged economically equivalentmortgage pools. 2 The Court’s decision was based on theproposition that the mortgages represented different propertyrights and the “respective possessors enjoy[ed] legal entitlementsthat are different in kind or extent.” 3 In response to taxpayerconcerns relating to the treatment of deemed exchanges, theInternal Revenue Service (Service) issued regulations under1. I.R.C. § 61(a) (2006).2. 499 U.S. 554, 556 (1991).3. Id. at 565.231

CHARLESTON LAW REVIEW [Volume 5§ 1001 addressing when a modification of a debt instrument willresult in a taxable exchange for purposes of Treas. Reg. § 1.1001-1(a).The material debt modification rules apply to an exchange ofan existing debt instrument for a new debt instrument, to anamendment of an existing debt instrument, or to indirecttransactions involving the issuer and holder that are effectuatedthrough transactions with third parties. 4 The regulations coverfive specific situations that could determine whether a significantmodification arises. The five situations are: (A) changes in obligoror security; (B) changes in the yield of a debt instrument; (C)changes in timing of payments; (D) an alteration in the nature orcharacterization of the instrument; and (E) changes inaccounting or financial covenants. 5A. Changes in Obligor or SecuritySubject to a limited number of exceptions, the substitution ofa new obligor on a recourse debt instrument constitutes asignificant modification. 6 The exceptions to the recourse rule are:(a) the new obligor is an acquiring corporation within themeaning of § 381 and the transaction does not result in a changein prepayment expectations; (b) the new obligor acquiressubstantially all of the assets of the original debtor and there isno change in prepayment expectations; and (c) the substitution ofa new obligor on a tax-exempt bond, where the new obligor isrelated to the original obligor and the collateral associated withthe transaction continues to include the original collateral. 7 Theregulations provide that a substitution “on a nonrecourse debtinstrument is not a significant modification.” 8With respect to changes in security or credit enhancement, amodification is substantial only if there is a change inprepayment expectations. 9 The general rule for nonrecourse debt2324. Treas. Reg. § 1.1001-3(a) (2009).5. § 1.1001-3(e).6. § 1.1001-3(e)(4)(i)(A).7. § 1.1001-3(e)(4)(i)(B)(D).8. § 1.1001-3(e)(4)(ii).9. § 1.1001-3(e)(4)(iv)(A).

2011] Tax Aspects—Financially Troubled Entitiesinstruments is stricter because the creditor can look only to thecollateral for repayment of interest and principal on theinstrument. However, a number of exceptions exist for situationsinvolving similarly valued collateral and improvements tocollateral. 10 For example, a significant modification does not takeplace where the collateral is fungible or where the units pledgedare not important as an economic matter, e.g., financialinstruments of a particular type and rating or improvements tothe property securing the nonrecourse debt instrument. 11B. Changes in Yield of Debt InstrumentPutting to one side contingent debt instruments, a significantmodification occurs with regard to a fixed-rate debt instrument,instruments with alternative payment schedules, debtinstruments such as demand loans that provide for a fixed yield,and variable-rate instruments if the interest rate varies from therate on the unmodified instrument by more than twenty-fivebasis points or five percent of the annual yield of the unmodifiedinstrument, whichever is greater. 12 Contingent debt instrumentsare tested under the “facts and circumstances” test. 13The yield on the modified debt instrument is equal to theadjusted issue price of the unmodified instrument, “increased byany accrued but unpaid interest and decreased by any accruedbond issuance premium” that has not been taken into account. 14The resulting figure is then increased or decreased “to reflectpayments made to the issuer or to the holder as consideration forthe modification.” 15 A reasonable prepayment penalty for a prorata prepayment is not considered as consideration for themodification. 16 As far as testing for the yield on a variable-debtinstrument is concerned, the annual yield is equivalent to thefixed-rate debt instrument, which is constructed based on the10. See, e.g., § 1.1001-3(e)(4)(iv)(B).11. Id.12. § 1.1001-3(e)(2)(ii)(A)(B).13. § 1.1001-3(e)(1).14. § 1.1001-3(e)(2)(iii).15. § 1.1001-3(e)(2)(iii)(A)(1).16. § 1.1001-3(e)(2)(iii)(B).233

CHARLESTON LAW REVIEW [Volume 5terms of the instrument on the modification date. 17C. Changes in Time of Payments“A modification that changes the timing of payments . . . dueunder a debt instrument is a significant modification if it resultsin the material deferral of scheduled payments.” 18 Under thegeneral rule for changes in payments, materiality of the deferralis based on a “facts and circumstances” test. 19 The regulationsprovide for a safe harbor period in a situation in which thedeferred payments “extend for a period equal to the lesser of fiveyears or [fifty] percent of the original term of the instrument.” 20The safe harbor rule should be of material benefit to manytroubled partnerships by permitting the interested parties ameaningful time period to turn around the business.An acceleration of future interest payments, as contrasted toa pro rata prepayment of remaining payments, may constitute asignificant modification under the “facts and circumstances” testif the prepayment does not take place according to the terms ofthe instrument or at the option of either party. 21 A pro rataprepayment of the remaining payments is treated as a partialrepayment of the principal of the debt obligation, and gain or lossis determined by assuming that the original debt instrumentconsists of two instruments—one that is retired and one that isoutstanding. 22 One must then allocate the adjusted issue price,adjusted basis, and accrued but unpaid original issue discount ofthe original instrument between the two instruments. 2323417. § 1.1001-3(e)(2)(iv).18. § 1.1001-3(e)(3)(i).19. Id.20. § 1.1001-3(e)(3)(ii).21. Cf. § 1.1001-3(c)(l)(ii).22. Treas. Reg. § 1.1275-2(f)(1) (2001).23. Id.

2011] Tax Aspects—Financially Troubled EntitiesD. Alteration in the Nature or Characterizationsof the InstrumentThe regulations provide that where the terms of a debtinstrument are modified in such a manner that it results in theinstrument no longer being considered a debt, then suchmodification is significant. 24 However, any deterioration of theobligor’s financial condition between the issue date of theinstrument and the date of the modification is not taken intoaccount for purposes of determining whether the instrumentshould be treated as debt unless “there is a substitution of a newobligor or the addition or deletion of a co-obligor” in connectionwith the modification. 25 Thus, it seems clear that simpledeterioration in the financial condition of an enterprise shouldnot occasion a substantial modification. The carve-out in theregulations for deterioration in the financial condition of theentity is not coupled with a specific event that triggers asignificant modification, such as a material change in the yield. 26One might then ask whether the coupling of such a specific eventand the deterioration of the entity should have any adverse effecton the nature of the debt instrument. The answer to thisquestion should be no, because the deterioration of the entity is aneutral event and, in addition, this conclusion is based onfavorable language in the preamble to the final regulations. 27As an example of a change from recourse to nonrecourse, theregulations cover a situation “in which the issuer is released fromall liability to make payments on the debt instrument[,]” whichalso includes an obligation to contribute additional securities to a24. § 1.1001-3(e)(5)(i).25. Id.26. Id.27. The applicable language in the preamble provides that: “The finalregulations . . . [provide] a rule that for purposes of this regulation, unless thereis a substitution of a new obligor, any deterioration in the financial condition ofthe issuer is not considered in determining whether the modified instrument isproperly characterized as debt.” Modifications of Debt Instruments, 61 Fed.Reg. 32926, 32929 (June 26, 1996) (to be codified at 26 C.F.R. pt. 1).235

CHARLESTON LAW REVIEW [Volume 5trust if such contribution would be necessary to keep theinstrument current. 28 Likewise, a change from recourse tononrecourse constitutes a significant modification under theregulations. 29The regulations under § 1001 do not set forth definitionalrules for recourse and nonrecourse debt. 30 However, it iscommonly understood that a recourse debt instrument is one inwhich the debtor is personally liable for payment. 31 In anonrecourse setting, the debtor is not personally liable for thepayment, and the creditor’s only remedies are to securepossession of the property or require the property be sold. 32 Inthe case of a debt instrument issued by a LLC in which themembers are special purpose entities, there may be no practicaldifference between recourse and nonrecourse where, for example,the asset held by the LLC is a single asset.The partnership regulations frame the definitions of recourseand nonrecourse obligations in a different manner. A partnershiprecourse liability is one in which the partner or a related partybears the economic risk or loss, and a nonrecourse liability is onein which no partner or related person bears the economic risk ofloss for that liability. 33 The partnership definitions should notcontrol because the partnership area is concerned about policyconsiderations that may be quite different from those under §1001.There are situations in which a partnership forms adisregarded entity in the form of a limited liability company, andsuch entity then borrows money to purchase assets by means ofrecourse debt. The issue here is whether the recourse debt of thedisregarded entity should be classified as nonrecourse debt of thepartnership for tax purposes. In this type of fact pattern, thepartnership that owns the disregarded entity is not liable for the23628. § 1.1001-3(e)(5)(ii).29. Id.30. See § 1.1001.31. See BLACK’S LAW DICTIONARY 1389 (9th ed. 2009).32. See id. at 157.33. Treas. Reg. § 1.752-1(a) (2006); see also Treas. Reg. § 1.752-2(a)(2009).

2011] Tax Aspects—Financially Troubled Entitiesdisregarded entity’s debts. 34 The simplest case should be one inwhich the disregarded entity holds only one asset, for example,land—the loan from the bank is recourse, and the bank can seekrecovery of its indebtedness only against the land. 35 This lookslike a classic nonrecourse loan situation, and the loan should, inthe author’s opinion, be classified for tax purposes as nonrecoursedebt of the partnership that is secured by the land held by thedisregarded entity.The difficult cases relate to situations in which thedisregarded entity owns multiple assets. Let us first consider thecase in which a disregarded entity (say, a limited liabilitycompany) created by a partnership borrows on a recourse basis,and the disregarded entity has multiple operating assets. In thisfirst situation, let us assume the creditor does not have recourserights against either assets acquired after the date the loan isentered into against a pool of assets that may change over time.The fundamental legal argument in support of the propositionthat the debt is nonrecourse debt of the partnership for taxpurposes is the fact that the partnership is not personally liablefor the debts of the disregarded entity under state law. 36 Thisview is articulated by a number of leading tax commentators. 37Moreover, the Service issued a Field Service Advice, which holdsthat a “limited recourse loan” should be characterized asnonrecourse for purposes of Treas. Reg. § 1.1001-2, primarily onthe grounds that the creditor’s rights were not as great as if theloan had been a recourse loan. 38The far more difficult case arises in a fact pattern in whichthe creditor can exercise its rights against assets of thedisregarded entity acquired after the loan has been entered into34. For example, a state limited liability company.35. This result occurs under state limited liability provisions.36. § 1.752-1(a).37. Terence Floyd Cuff, Indebtedness of a Disregarded Entity, 81 TAXES,Mar. 2003, at 303, 340 (Mar. 2003); Philip B. Wright, Disregarded EntitiesIssues and Opportunities, 703 PRAC.L.INST./TAX 61, 8485 (2006).38. I.R.S. Field Serv. Adv. 200135002 (Apr. 10, 2001) (involving a limitedrecourse loan where the creditor could not have attached the debtor’s assetsthat were not mentioned in the loan agreement. The loan was considerednonrecourse for purposes of Treas. Reg. § 1.1001-2).237

CHARLESTON LAW REVIEW [Volume 5and a situation in which the creditor has rights over a pool ofassets that may change over time. This situation looks a lot like arecourse loan, despite the fact that the partnership is notpersonally liable for the disregarded entity’s debt under statelaw. 39 In this case, the creditor’s rights are far reaching, andthere is obviously a real risk that the disregarded entity’srecourse loan could be treated as recourse to the partnership byviewing the disregarded entity simply as a division of theowner. 40 At the very least, such a fact pattern would raiseconcerns at the Service, despite the fact that the partnership isnot liable for the debts of the disregarded entity. One argumentthat could be raised by the Service would be a substantiveargument in which the mere form of the transaction should notbe respected where the overriding realities of the transactionmirror a recourse loan. Nevertheless, the taxpayer can stillassert that the loan should be treated as a nonrecourse loan onthe theory that the creditor can seek only recovery of its debtagainst the assets of the disregarded entity. It may also make adifference if the value of the assets that exceed the original loanis only slightly in excess of the face amount of the loan, ascontrasted to a situation in which the original assets, coupledwith after-acquired assets, are greatly in excess of the faceamount of the loan.E. Changes in Accounting or Financial CovenantsThe regulations provide that a change or modification to thecustomary accounting or financial covenants is not a significantmodification. 41III. TAX CONSEQUENCES OF MODIFICATIONSIf the modification does not constitute one of the significantmodifications under the rules previously discussed, then suchmodification is tested under the general facts and circumstances39. Under state law limited liability provisions.40. Marc D. Teitelbaum, A Disregarded Entity Must Be Taken intoAccount, 773 PRAC.L.INST./TAX 9, 39 (2007).41. Treas. Reg. § 1.1001-3(e)(6) (2009).238

2011] Tax Aspects—Financially Troubled Entitiestest. 42 If a modification of one of the “specific” rules “is effectiveonly upon the occurrence of a substantial contingency,” thesignificant modification test is to be applied under the generalrule. 43 If a degree of change relating to one of the specific rules isnot great enough to cause a significant modification, then suchchange cannot constitute a significant modification under thegeneral rule. 44 Also, modifications of different terms of a debtinstrument, none of which would constitute a significantmodification under the specific rules, do not collectively result ina significant modification. 45 If the changes are effectuated at onepoint in time or if there are a series of modifications over time(e.g., changes in the maturity date), the cumulative effect canresult in a significant modification. 46 Thus, the modificationbecomes significant “at the time that the cumulative modificationwould be significant . . . .” 47The Service has ruled that breaking an obligation into smallproportionate instruments does not constitute a substantialmodification. 48 If one splits an obligation into two or more newobligations where the new obligations are not proportional toeach other, such break-up should not trigger a significantmodification, provided that the payments are the same as theoriginal instrument. This should be the case because there wouldbe no material deferral of scheduled payments.A. Tax Consequences to Significant Modifications ofDebt InstrumentsIn the event that there has been a significant modification ofthe debt instrument, the transaction is characterized as a42. § 1.1001-3(f)(1)(i); see also § 1.1001-3(e)(1) (weighing whether “the legalrights or obligations that are altered and the degree to which they are alteredare economically significant”).43. § 1.1001-3(f)(1)(ii).44. § 1.1001-3(f)(2).45. § 1.1001-3(f)(4).46. § 1.1001-3(f)(3).47. Id.48. I.R.S. Priv. Ltr. Rul. 98-19-043 (Feb. 11, 1998).239

CHARLESTON LAW REVIEW [Volume 5satisfaction of the old instrument for the new instrument. 49From the perspective of the lender, the first issue to be addressedis cancellation of indebtedness income. The debtor is treated ashaving satisfied the original indebtedness with an amount ofmoney equal to the issue price of the new instrument forpurposes of determining the debtor’s cancellation of indebtednessincome. 50 Accordingly, the debtor will realize cancellation ofindebtedness income if the issue price of the new instrument isless than the adjusted issue price of the original instrument. 51Cancellation of indebtedness income is considered to be anitem of income at the partnership level and is allocatedseparately to each partner. 52 The tax basis of a partner’s interestin the partnership is increased by his distributive share oftaxable income and exempt income. 53 Assuming that cancellationof indebtedness income is not excluded under one of the generalexceptions, then such income will increase the partner’s tax basisin his partnership interest. 54 Furthermore, any decrease in apartner’s share of liabilities of a partnership, which wouldinclude a reduction resulting from cancellation of debt, isconsidered as a distribution of money to the partner by thepartnership. 55 In turn, another section of the Code provides thatany distribution of money by a partnership to the partner, otherthan in liquidation of a partner’s interest, reduces the partner’stax basis in his partnership interest (but the reduction cannotresult in a negative basis). 56 To the extent that the distributionof money exceeds the partner’s basis in his partnership interest,the excess is treated as gain. 57The deemed distribution under § 752(b) is treated as anadvance against a partner’s distributive share of income underTreas. Reg. § 1.731-1(a)(1)(ii) and made on the last day of the24049. § 1.1001-3(b).50. I.R.C. § 108(e)(10)(A) (2006).51. § 1.1001-1(a); I.R.C. § 108e(10)(A).52. See I.R.C. § 702(a).53. I.R.C. § 705(a).54. I.R.C. § 705(a)(1)(A)55. I.R.C. § 752(b).56. I.R.C. § 733(1).57. I.R.C. § 731(a).

2011] Tax Aspects—Financially Troubled Entitiespartnership taxable year. 58 Thus, the reduction in basistriggered by the cancellation of indebtedness income can beutilized as an offset against the basis increase occasioned by thebasis step up attributable to the cancellation of indebtednessincome.If a partner’s distributive share of cancellation ofindebtedness income is in the same proportion as his share ofliabilities, then the amount of the basis step up concerning thecancellation of indebtedness income will exactly offset the declinein partnership debt. However, the partner will still havecancellation of indebtedness income to include as taxable income.If the percentages are not shared in the same proportions, then apartner can pick up gain as well as be taxed on cancellation ofindebtedness income.B. Publicly Traded Debt vs. Non-Publicly Traded DebtThe determination of the issue price is based on whether thenew debt is publicly traded or non-publicly traded. 59 However, asa practical matter, the vast majority of cases will involve nonpubliclytraded debt instruments.Where new publicly traded debt instruments are issued inexchange for publicly traded debt instruments that have beensubjected to a “significant modification,” the issue price of thenew debt instruments equates to the fair market value of the olddebt instrument. 60 This transaction places the debtor on a markto-marketrule. Assume for example that the old debt has aprincipal amount of $1,000,000 and a fair market value of$900,000. Further assume a substantial modification by way ofdeferral of payments. The issue price of the new debt is $900,000.Upon the deemed exchange of the old debt instrument for thenew debt instrument, the new instrument has a tax basis of$900,000, the lender realizes a loss of $100,000, and the debtorrealizes cancellation of indebtedness income of the same amount.58. Rev. Rul. 94-4, 1994-1 C.B. 195.59. I.R.C. §§ 1273–1274.60. I.R.C. § 1273(b)(3).241

CHARLESTON LAW REVIEW [Volume 5On the above facts, the lender has original issue discount of$100,000, representing the difference between the excess of thestated redemption price at maturity and the issue price. 61Original issue discount is deductible by the issuer over the life ofthe instrument on a constant yield basis. 62 Similarly, the holderof the debt obligation must include original issue discount overthe life of the instrument on the same yield basis. 63The rules governing non-publicly traded debt instrumentsare different because of the absence of a publicly traded market,which can be easily used to determine value. Section 1273 and1274 governs the determination of the adjusted issue price of thenew debt instrument that is exchanged for the non-publiclytraded debt instrument. 64 If the new instrument provides forinterest at a rate at least equal to the applicable federal rate, 65then the issue price generally will be the stated principalamount, assuming that the original creditor holds theinstrument. 66 Accordingly, the issue price in this type of factpattern will equate to the stated principal amount. 67 If we goback to our original example where there was a deemed exchangeand the only substantial modification was the deferral ofpayments, the issue price of the new debt obligation is$1,000,000. One does not take into account the fair market valueof the original debt obligation, and the new obligation is thereforenot marked to market. Accordingly, the debtor does not realizecancellation of indebtedness income, and the creditor does notrealize a gain or loss on the transaction.The tax results are different, however, if the interest rate onthe new debt instrument is less than the applicable federal rate.If we use the same facts as before, but modify the significant61. I.R.C. § 1273(a)(1).62. I.R.C. § 163(e)(1).63. I.R.C. § 1272(a)(1).64. I.R.C. § 1273(b)(4) and § 1274.65. I.R.C. § 1274(d) (The federal short-term, mid-term, and long-term ratesare determined by the Secretary during each calendar month and each isapplied based on the term of the debt instrument and thereby deemed theapplicable federal rate).66. I.R.C. § 1273(b)(4).67. Id.242

2011] Tax Aspects—Financially Troubled Entitiesmodification event so that the yield on the debt instrument isreduced to a level below the applicable federal rate, then theissue price of the new debt instrument equates to the imputedprincipal amount. 68 The imputed principal amount is equal tothe sum of the present value of all payments due under the newinstrument, determined by using a discount rate that is equal tothe applicable federal rate, compounded semiannually. 69What if we use the same example but substitute a lower yieldfor a deferral of payments and assume that the principal of thenew debt instrument equals $940,000? On these facts, the lenderis deemed to receive an amount equal to the value of the newdebt instrument, or $940,000, and the lender generates a loss of$60,000. The debtor realizes cancellation of indebtedness incomeof $60,000. The new debt instrument also has original issuediscount of $60,000.C. Contingent Payments on New DebtThe regulations issued under § 1275 provide special rules tocover situations in which there are contingent payments, and therules distinguish between debt issued for publicly tradedproperty and debt issued for non-publicly traded property. 70However, these rules exempt a situation in which there is aremote likelihood that the contingency will occur or that thecontingency will not occur. 71 In addition, the regulations have acarve-out for incidental contingencies. 72 An incidentalcontingency is one in which the potential amount of thecontingency is insignificant when compared to the expectedamount of remaining payments on the obligation. 73If the modified debt instrument falls under the rules forpublicly traded property, then the interest on the contingentpayment debt instrument must be computed using the68. I.R.C. § 1274(a)(2).69. I.R.C. § 1274(b).70. I.R.C. § 1275.71. Treas. Reg. § 1.1275-2(h)(2) (2001).72. § 1.1275-2(h)(3).73. Id.243

CHARLESTON LAW REVIEW [Volume 5noncontingent bond method. 74 This method specifies that theamount of interest that must be reported is determined byconstructing a projected payment schedule for the new debtinstrument and applying rules similar to those for accruingoriginal issue discount on a noncontingent debt instrument. Ifthe contingent payments do not equate to the projectedpayments, one must adjust the income or deductions to accountfor the differences. 75If the new debt instrument falls within the coverage of a nonpubliclytraded debt instrument, the contingent payments arenot included in the issue price. 76 The noncontingent paymentsare treated as a separate debt instrument, and the issue price ofthe new debt instrument is the lesser of the instrument’snoncontingent principal payments and the sum of the presentvalues of the noncontingent payments. 77Putting to one side a special rule for certain delayedcontingent payments, a contingent payment is treated as apayment of principal in an amount equal to the present value ofthe payment, determined by discounting the payment at the testrate from the date the payment is made to the issue date. 78 Thetest rate is the three-month applicable federal rate. 79 The amountin excess of the amount treated as principal is treated asinterest. 80There is a special rule for certain delayed contingentpayments which provides that if a contingent payment becomesfixed more than six months before the payment is due, the issuerand holder are viewed as having issued a separate debtinstrument on the date that the payment becomes fixed. 81 Thematurity date is the due date of the payment. 82 The statedprincipal amount of this instrument is the amount of the24474. I.R.C. § 1273; § 1.1275-4(a)(1)-(b)(1).75. § 1.1275-4(b)(2).76. § 1.1274-2(g).77. § 1.1275-4(c)(3).78. § 1.1275-4(c)(4)(ii).79. § 1.1274-4(a).80. § 1.1275-4(c)(4)(ii).81. § 1.1275-4(c)(4)(iii).82. Id.

2011] Tax Aspects—Financially Troubled Entitiespayment that becomes fixed. 83IV. TRANSFER OF PARTNERSHIP INTEREST INSATISFACTION OF A PARTNERSHIP DEBTNext we will examine a situation in which a partnershiptransfers a capital or profits interest in the partnership to acreditor in satisfaction of its recourse or nonrecourse liabilities.In this situation, the borrower may transfer a partnershipinterest to a creditor in exchange for the cancellation of recourseor nonrecourse debt. The cancellation of indebtedness income willbe realized just as though the partnership had discharged thedebt with cash in an amount equal to the value of thepartnership interest. Where a partnership transfers a capital orprofits interest to a creditor in satisfaction of its recourse ornonrecourse debt, the partnership is treated as having satisfiedthe indebtedness with an amount of money equal to the fairmarket value of such interest. 84 Any discharge of indebtednessincome is to be allocated to the partners immediately before thedischarge. 85 In this type of transaction, the lender may ask for anadditional participation or, in the case of a LLC, some type ofequity kicker. Another possibility is to give the lender an equityinterest in exchange for a reduction in the debt, but provide forsome type of option mechanism so that the existing partners canacquire the newly admitted partner’s interest at certain specifiedvalue levels. A mechanism that includes additional slices of aprofits interest, an equity kicker, or an option mechanism couldbenefit all parties and may reduce the amount of cancellation ofindebtedness income as well.The reduction in the partners’ indebtedness has taxconsequences for the partners. To begin with, any decrease in apartner’s share of partnership indebtedness is treated as “adistribution of money to the partners by the partnership.” 86 Thedeemed cash distribution is taxable to the partner to the extent83. Id.84. I.R.C. § 108(e)(8)(B) (2006).85. Id.86. I.R.C. § 752(b).245

CHARLESTON LAW REVIEW [Volume 5that the deemed cash distribution exceeds the adjusted basis ofthe partner’s interest in the partnership immediately before thedistribution. 87 On the other hand, the partner should receive astep-up in his outside basis for his partnership interest. 88 Thus,one should have offsetting basis adjustments, but the partnershould realize discharge of indebtedness income.The admission of a creditor in satisfaction of a portion ofnonrecourse debt may result in a reallocation of debt among thepartners. In this connection, Treas. Reg. § 1.752-2(c) provides asfollows:(c) Partner or related person as lender[—](1) In general[—]Apartner bears the economic risk of loss for a partnershipliability to the extent that the partner or a related personmakes (or acquires an interest in) a nonrecourse loan to thepartnership and the economic risk of loss for the liability is notborne by another partner. 89So assume that a creditor is admitted to a partnership inpartial satisfaction of existing nonrecourse debt. The creditor isnow both a creditor and a partner in the partnership. Theremaining portion of the nonrecourse debt should be treated asrecourse to the creditor pursuant to the above-cited regulation. 90Thus, there should be a shifting of the remaining portion of thenonrecourse debt from the other partners to the creditor-partner.Because the other partners reduce their allocation of nonrecoursedebt, they are also allocated fewer deductions attributable tosuch nonrecourse debt.The admission of the creditor as a partner in exchange for aportion of nonrecourse debt should also trigger a revaluation ofpartnership property. The resulting capital accounts must bebased on § 704(c) principles. 91 This adjustment is necessary inorder to ensure that the book values are properly reflected sothat the partners will share the tax items arising from theproperties in a manner that accords with principles under §24687. I.R.C. § 731(a).88. I.R.C. § 705(a).89. Treas. Reg. § 1.752-2(c)(1) (2009).90. Id.91. Treas. Reg. § 1.704-(1)(b)(2)(iv)(f)(g) (2006).

2011] Tax Aspects—Financially Troubled Entities704(c). 92 In other words, a book-up is necessary in order to havecapital accounts that reflect any unrealized appreciation ordepreciation in partnership property. For example, assume thatthe partnership has unrealized appreciation in its assets beforethe exchange of a partnership interest to a creditor insatisfaction of a portion of the partnership debt. Absent a bookup,if the appreciated property is later sold and the appreciationis captured, the existing partners will not receive their propershare of the appreciation.As a general rule, § 706(d) of the Code permits a dailyproration method or an interim-closing-of-the-books methodwhen an interest in a partnership changes during the course of ayear. 93 However, § 108(e)(8)(B) overrides this partnership rule byspecifying that debt discharge income is only allocated to thosewho are partners immediately before the debt discharge. 94 Thisundoubtedly means that only an interim closing is permitted.A. Participation Interest by Creditor Without Change toPartner StatusGiven some of the potential pitfalls in a creditor becoming apartner and taking on liabilities of a partnership, creditors areexploring various ways of securing participation interestswithout having to take on the formal status of a partner. Onepotential way to accomplish this goal is to acquire a contingentinterest in the affairs of the business. This contingent interestmay be based on cash flow or a contingent payout attributable toproceeds generated on the sale of assets. If structured properly,this type of feature should be treated as an interest that givesrise to interest income. One important point for planningpurposes is that one does not wish to effectuate a change thatresults in the reallocation of debt, thereby triggering deemeddistributions under § 731. 9592. Id.93. I.R.C. § 706(d).94. I.R.C. § 108(e)(8)(B).95. I.R.C. § 731.247

CHARLESTON LAW REVIEW [Volume 5As a general rule, a creditor does not have a partnershipinterest by virtue of holding a debt instrument that provides thecreditor with the opportunity to secure a participation inprofits. 96 On the other hand, this is a sensitive issue, anddebt/equity issues pertaining to such issues as the performance ofservices, the sharing of profits and losses, the intent of theparties, and the sharing of capital are important factors. TheService has ruled that where parties owned an apartmentbuilding and retained a management company to provide variousmanagement services, no partnership resulted because the coowners’management was not great enough to rise to the level ofa partnership. 97If there is a net profits interest associated with the debtinterest and the totality of the instrument results in a situationin which the creditor has exchanged its interest for a partnershipinterest, then a number of factors will become relevant. First,the purported interest payments are treated as distributions andare not deductible when paid by the partnership. Also, aspreviously discussed, there is a reduction in the original partners’sharing in liabilities. 98 Such a re-allocation of debt can lead to adeemed distribution of money. 99B. Transfer of Property Subject to Nonrecourse IndebtednessAnother option for the partnership is to transfer propertysubject to nonrecourse indebtedness to the lender in fullsatisfaction of the nonrecourse debt. The partnership willrecognize gain on this transaction based on the differencebetween the principal amount of the nonrecourse debt and thetax basis of the property. 100 This result is based on the fact thatthe amount realized is considered to be the outstanding principalamount of the debt obligation, notwithstanding the fact that thefair market value of the property is less than the amount of the24896. See I.R.C. § 385(c) for factors relating to debt and equity.97. Rev. Rul. 75-374, 1975-2 C.B. 261 (1975).98. I.R.C. § 752(b).99. I.R.C. § 731.100. Treas. Reg. § 1.1001-2(a)–(b) (2009).

2011] Tax Aspects—Financially Troubled Entitiesnonrecourse debt. 101 The entire amount of the gain is considereda gain recognized under § 1001, and no portion of the gainconstitutes cancellation of indebtedness income. 102 For planningpurposes, one should consider whether the property should beexchanged in cancellation of the indebtedness, which results ingain as contrasted to, e.g., a debt modification (where theindebtedness being forgiven constitutes cancellation ofindebtedness income). There could be a two-step arrangement.For example, a partial debt cancellation could be followed by atransfer of the property in extinguishment of the debt. Theapplicable factors here are tax rates, possible capital lossesincurred by the partners, and the ability to spread cancellation ofindebtedness income over a number of years if the transactiontakes place before January 1, 2011.C. Transfer of Property Subject to Recourse IndebtednessWhere there is a disposition of property subject to recourseindebtedness, including a transfer to the lender in completesatisfaction of the debt, then the tax rules call for a bifurcationanalysis. 103 In the first step, the partnership will generate gain orloss on the difference between the fair market value of theproperty and the property’s tax basis. 104 The important pointhere is that the income generated is gain and not cancellation ofindebtedness income. In the second step, if the recourse debt is inexcess of the fair market value of the property, the partnershipwill realize cancellation of indebtedness income. 105 Thebankruptcy rule and the insolvency rule for cancellation ofindebtedness income apply at the partner level and not thepartnership level. Accordingly, if the partners are solvent, there101. See, e.g., Comm’r v. Tufts, 461 U.S. 300 (1983); Crane v. Comm’r, 331U.S. 1 (1947); see also Treas. Reg. § 1.1001-2(c), Example 7 (2009); I.R.C.§ 7701(g) (2006).102. I.R.C. § 7701(g) (fair market value of property deemed equal to amountof nonrecourse indebtedness); see also Treas. Reg. § 1.1001-1 (2009).103. Treas. Reg. § 1.1001-2(c).104. Treas. Reg. § 1.1001-2(a); Rev. Rul. 90-16, 1990-1 C.B. 12; Gehl v.Comm’r, 102 T.C. 784 (1994).105. § 1.1001-2(c), Example 8; Rev. Rul. 90-16, 1990-1 C.B. 12.249

CHARLESTON LAW REVIEW [Volume 5will be no opportunity for attribution reduction. 106D. Timing of Cancellation of DebtGenerally speaking, there should not be a significant issuewith regard to the time when cancellation of indebtedness incomeis realized. In the typical case, it is realized at the point in timewhen the debt is satisfied for an amount less than the principalamount owed. In the case of debt instruments that are publiclytraded, the date is when the issuer acquires the obligations, evenif the debt obligations are not retired at that point. 107 Since thefocus is on situations in which there is a restructuring of thepartnership’s debt, it should be clear when the triggering eventoccurs. Outside of this area, cancellation of indebtedness incomeis realized based on a facts and circumstances approach. 108 Thisis usually evidenced by a satisfaction agreement between thedebtor and the creditor, 109 on the date of court approval of asettlement between the parties 110 when the statute of limitationshas expired, and the creditor can no longer collect theobligation. 111 Or, it is evidenced by some other event that usuallyinvolves a situation in which the creditor has written off theclaim and the debtor has shown that it did not intend to satisfythe claim. 112E. Allocation of Cancellation of Indebtedness Incometo PartnersCancellation of indebtedness income constitutes an elementof the partner’s distributive share of income and it would seem,at first blush, that it should be allocated in accordance with themanner in which the partners share profits under the terms of250106. I.R.C. § 108(d)(6) (2006).107. Mont., Wyo. & S. R.R. v. Comm’r, 31 B.T.A. 62 (1934).108. Cuzzi v. Comm’r, 88 T.C. 435 (1987).109. Seay v. Comm’r., 33 T.C.M. (CCH) 1406, 1407 (1974).110. Exch. Sec. Bank v. United States, 492 F.2d 1096, 1097 (5th Cir. 1974).111. Sec. Co. v. United States, 85 F. Supp. 532, 532 (S.D.N.Y. 1948).112. Marcus Estate v. Comm’r., 34 T.C.M. (CCH) 38, 39 (1975).

2011] Tax Aspects—Financially Troubled Entitiesthe partnership agreement. 113 On the other hand, one mightargue that a fairer result would be to allocate the cancellation ofindebtedness income back to the partners based on the samepercentage in which they share the debt. There is no specificstatutory rule that covers this case. The answer, as discussed ina revenue ruling, turns on whether the allocation has substantialeconomic effect under § 704 and the regulations within thatsection. 114Revenue Ruling 92-97 relates to a hypothetical case in whichpartners A and B form a general partnership, and A contributes$10x and B contributes $90x to the AB Partnership. 115 Thepartners share profits equally, but losses are allocated 10% to Aand 90% to B. 116 The partnership uses the $100x and $900x inloan proceeds to acquire property for $1,000x. $90x of the debt isallocated to A, and the remaining $810x is allocated to Bpursuant to the rules governing § 752. 117 After five years thepartnership breaks even, and the property is fully depreciated.However, the property’s value has declined so greatly that thelender cancels the debt. Depreciation deductions are allocated10% to A and 90% to B. Although the partners agreed toliquidate based on the positive capital account balances, thepartnership agreement did not provide for an unconditionaldeficit restoration obligation. The partners are required torestore deficit capital accounts only to the extent that it isnecessary to pay creditors. Neither partner has an obligation tomake a contribution to satisfy the other partner’s positive capitalaccount upon liquidation.Based on the foregoing facts, A has a negative capital accountof $90x, and B has a negative capital account of $810. As a resultof the debt cancellation, the partners are not obligated to restoretheir deficit capital accounts. Because the debt is cancelled, bothpartners will receive a deemed distribution of money equal to$90x in A’s case and $810x in B’s case.113. I.R.C. § 702(a)(8) (2006).114. I.R.C. § 704(b)(2).115. Rev. Rul. 92-97, 1992-2 C.B. 124.116. Id.117. Id.251

CHARLESTON LAW REVIEW [Volume 5In analyzing the above facts, there are two potential ways inwhich the cancellation of indebtedness income could be allocated.First, the income could be allocated based on the partnershipincome allocations. If this were done, then the $900x of incomewould be allocated equally between the two partners. As a result,A would be left with a positive capital account of $360x, and Bwould have a positive capital account of $360x. The allocation,however, does not have an economic effect because thepartnership agreement did not provide for an independent deficitrestoration obligation that could be triggered to satisfy the otherpartner’s positive capital account. Additionally, the debtcancellation eliminated the partners’ obligation to restore adeficit capital account. In the absence of an independent deficitrestoration obligation to satisfy positive capital accounts inliquidation, A is left with a positive capital account of $360x, butB is not obligated to restore A’s capital account to $360x. Thus,the allocation based on income allocations has no economic effect.The other way to analyze the problem is to require thecancellation of indebtedness income to be allocated in the sameratio as the decrease in the partners’ share of liabilities under §752. 118 In this case, the income allocated to A would be $90x andto B, $810x. Such a result would accord with economic effectunder § 704. 119 In this situation, the partners’ bases in theirpartnership interests would be increased in accordance with thesame ratios that govern their decrease in their shares ofpartnership liabilities. 120 Accordingly, the deemed distributionsof money to each partner is increased by amounts that exactlyequate to the decrease in bases occasioned by the decrease inshare of partnership liabilities. 121An allocation to a partner of a share of the cancellationindebtedness that differs from the partner’s share of cancelleddebt has substantial economic effect only if: “(1) the deficitrestoration obligations covering any negative capital accountbalances resulting from the [debt cancellation] income allocation252118. I.R.C. § 752(b).119. I.R.C. § 704.120. I.R.C. § 752(b).121. Id.

2011] Tax Aspects—Financially Troubled Entitiescan be invoked to satisfy other partners’ . . . capital accountbalances; (2) the requirements of the economic effect [tests are]are otherwise met; and (3) substantiality [is] independentlyestablished.” 122The typical partnership agreement does not provide for anunconditional restoration obligation. Rather, the typicalpartnership agreement simply provides for a qualified incomeoffset. Thus, in a fact pattern similar to that discussed above, anallocation of cancellation of indebtedness income based on anallocation pursuant to a profits interest would not have economiceffect.F. Partner’s Acquisition of Partnership Debt from LenderOne other situation that should be mentioned is where apartner acquires nonrecourse debt from the lender, but the debtis not extinguished. There are two fact patterns that are worthexploring. In the first situation, assume that A, B, and C arepartners in the ABC Partnership. A and B have a profits interestof 24% each and share losses in the same ratio. Partner C has a52% interest in profits and shares loss in the same ratio.Further, assume that the partnership has nonrecourse debt of$4,000, the property has a fair market value of $2,000, and C canacquire the nonrecourse debt for $1,500. Also, assume that thereis no independent restoration obligation in the partnershipagreement.The first point that should be noted is that if C acquires thenonrecourse debt from the lender, C will be considered a “relatedparty” for purposes of the related party rules. 123 In this type offact pattern, the acquisition of the debt instrument by the relatedparty from the lender results in the realization by the debtor ofcancellation of indebtedness income. 124 The standard fordetermining whether a party is “related” is set forth in §§ 267(b)and 707(b)(1). 125 C is related to the ABC Partnership because C122. Rev. Rul. 92-97, 1992-2 C.B. 124.123. I.R.C. § 108(e)(4).124. I.R.C. § 108(e)(4)(A).125. Id.253

CHARLESTON LAW REVIEW [Volume 5has more than a 50% interest in profits and capital—the Section707 test is framed as either more than 50% of the capital or morethan 50% of profits. 126Based on the related party rule in § 108, cancellation ofindebtedness income of $2,500 is realized. The cancellation ofindebtedness income is allocated to the partners in the ratio of24% to A, 24% to B and 52% to C. 127 If the transaction takesplace in 2010, then under § 108(i) the cancellation ofindebtedness income can be deferred and included in grossincome ratably over the five taxable year period beginning in2010. 128 If the transaction is effectuated in 2011, then the incomeis included in full in 2011. 129The nonrecourse debt instrument acquired by C is subject tocertain correlative adjustments pursuant to Treas. Reg. § 1.108-2(g)(1). 130 The partnership’s indebtedness is treated as newindebtedness issued by the partnership to C on the deemedissuance date. The new indebtedness is deemed issued with anissue price equal to the amount that C paid for the obligation,which in this case is $1,500. The indebtedness still has a statedredemption price of $4,000. The excess of the stated redemptionprice over the issue price ($4,000 less $1,500 or $2,500) is originalissue discount and is “deductible by the debtor [partnership] andincludible in the gross income of the related holder.” 131The nonrecourse debt of $1,500, which is held by C, istransformed into partner nonrecourse debt. Under the rules of§ 752, this debt, in effect, becomes recourse debt. C bears theeconomic risk of loss for this partnership liability because C hasacquired a nonrecourse loan to the partnership, and the economicrisk of loss for the liability is not borne by the other partners (Aand B). 132 C will receive a step up in tax basis to his partnershipinterest pursuant to 752(a). 133 On the other hand, there will be a254126. I.R.C. § 707(b).127. See the discussion concerning Rev. Rul. 92-97, supra note 122.128. I.R.C. § 108(i).129. See id.130. Treas. Reg. § 1.108-2(g)(1) (2009).131. Id.132. Treas. Reg. § 1.752-2(c)(l) (2009).133. I.R.C. § 752(a) (2006).

2011] Tax Aspects—Financially Troubled Entitiesdecrease in A’s and B’s share of partnership indebtedness, andsuch decrease will be treated as a distribution of money by thepartnership to each of A and C. 134 If the deemed distributionexceeds the partner’s basis in his partnership interest, then suchexcess will constitute gain and will be fully includible in incomein the year that the deemed distribution occurs. 135 The gain willresult in a step-up in tax basis in the partner’s basis in hispartnership interest. 136The reader will note, however, that C is holding an obligationwith a stated redemption price of $4,000, which exceeds the fairmarket value of the assets of the partnership. Assuming that theoutlook for the partnership is not particularly robust, it wouldseem that the parties should have first sought to modify theprincipal amount of the nonrecourse debt to some manageablelevel and then pursued the acquisition of the nonrecourse debtobligation. In this connection, C is facing a potential situation inwhich the principal amount of the debt may have to be reduced.In this fact pattern, C is exposed to the possibility of generating asignificant amount of cancellation of indebtedness income.The next example uses the same facts as the example aboveexcept the percentage interests for profits and losses are asfollows: 26% to A, 26% to B, and 48% to C. If C now acquires thenonrecourse indebtedness for $1,500, C will not be a relatedparty. Thus, there will be no cancellation of the indebtednessincome generated on the transaction. On the other hand, C willhold partner nonrecourse debt because C is a partner and thecreditor on such indebtedness. 137 As a consequence of suchpurchase, there will be a shift in liabilities such that all ofindebtedness will be shifted over to C, thereby increasing hisbasis in his partnership interest. Both A and B will decreasetheir share of the partnership debt to zero, and such decreasewill trigger a deemed distribution. 138 To the extent that thedeemed distribution exceeds the basis of A’s or B’s partnership134. I.R.C. § 752(b); I.R.C. § 731(a).135. I.R.C. § 731(a).136. I.R.C. § 705(a)(1).137. § 1.752-2(c)(1).138. I.R.C. § 752(b).255

CHARLESTON LAW REVIEW [Volume 5interest, such partner will recognize gain on the transaction. 139The gain will then be added to the partner’s basis in hispartnership interest. 140Although C has increased his basis in his partnershipinterest to reflect the “recourse” nature of the debt, C still facesthe issue of a potential income hit in the event that the principalof the debt is decreased in a debt modification. However, at thisstage of events, C is able to shelter himself from any income hit.V. EXCLUSIONS OF CANCELLATION OF INDEBTEDNESSINCOME UNDER § 108Section 108 provides for a detailed list of rules, which caneliminate or mitigate taxability of cancellation of indebtednessincome. 141 The first set of rules pertains to bankruptcy andinsolvency. In this regard, cancellation of indebtedness income isnot included in gross income if the discharge occurs in a Title 11case. 142 A Title 11 case is a “case under title 11 of the[Bankruptcy Code] but only if the taxpayer is under thejurisdiction of the court in such case, and the discharge ofindebtedness is granted by the court or is pursuant to a planapproved by the court.” 143 Section 108(a)(1)(B) provides thatcancellation of indebtedness income is not included in grossincome if the taxpayer is insolvent. 144 The term insolvent isdefined by the Code to mean the “excess of liabilities over the fairmarket value of assets.” 145The exclusions listed above will not be of real practical usebecause the bankruptcy and insolvency exclusions apply only atthe partner level—not the partnership level. 146 Since this Articleis concerned with the restructuring of partnerships and LLCs256139. I.R.C. § 731(a).140. I.R.C. § 705(a)(1)(A).141. I.R.C. § 108.142. I.R.C. § 108(a)(1)(A).143. I.R.C. § 108(d)(2).144. I.R.C. § 108(a)(1)(B).145. I.R.C. § 108(d)(3).146. I.R.C. § 108(d)(6).

2011] Tax Aspects—Financially Troubled Entities(taxable as partnerships), the basic assumption is that thepartners of the partnership or the members of the LLC are notbankrupt or insolvent.A. Purchase Price Adjustment Rule of § 108(e)(5)Section 108(e)(5) provides a special rule for a reduction toseller financing. 147 Such reduction in financing does not result incancellation of indebtedness income to the purchaser, and theprotection is not available if the purchaser is insolvent or inbankruptcy at the time of the reduction. 148 This rule is applied atthe partnership level, in contrast to the rules for bankruptcy andinsolvency. 149 Although this exclusion allows the debtor toreduce the basis in the property in contrast to recognizingcancellation of indebtedness income, the debt must be owed tothe original creditor, instead of a third-party creditor. 150 Thisresult is primarily based on the purchase price adjustmentexception created in Bowers v. Kerbaugh-Empire Co., a case thathas been discredited. 151A question arises as to whether the partners’ bases in theirpartnership interests should be increased by the allocation ofcancellation of indebtedness income. A denial of such an increasewould be based on the theory that a partnership level allocationdoes not result in an allocation of cancellation of indebtednessincome to the partners. In this connection, the Service hasapplied § 108(e)(5) at the partnership level without regard to theparties’ solvency. 152 A contrary position would argue that therelief in question is analogous to tax-free income under§ 705(a)(1)(B), where debt forgiveness of nonrecourse debt147. I.R.C. § 108(e)(5) (the seller of the property provided the financing andtook back a debt instrument).148. I.R.C. § 108(e).149. See I.R.S. Tech. Adv. Mem. 85-04-005 (Mar. 12, 1985); I.R.S. Priv. Ltr.Rul. 90-37-033 (Jun. 18, 1990); Rev. Rul. 92-92, 1992-2 C.B. 505.150. Rev. Rul. 92-99, 1992-2 C.B. 35; Preslar v. Comm’r., 167 F.3d 1323,1331 (10th Cir. 1999).151. Bowers v. Kerbaugh-Empire Co., 271 U.S. 170, 175 (1926). Kerbaugh-Empire has not been followed by subsequent decisions. E.g., Vukasovich, Inc. v.Comm’r, 790 F.2d 1409, 1414 (9th Cir. 1986).152. Tech. Adv. Mem., supra note 149.257

CHARLESTON LAW REVIEW [Volume 5exceeds the basis of the assets subject to the debt. 153B. Qualified Real Property Business Indebtedness (QRPBI)Section 108(a)(1)(d) has an exclusion for qualified realproperty business indebtedness (QRPBI). 154 This provision canbe applied by partnerships and LLCs to exclude cancellation ofindebtedness income where the indebtedness was incurred orassumed by the taxpayer in connection with real property used ina trade or business. 155 This can also be applied if theindebtedness is secured by the real property or the indebtednesswas incurred or assumed before January 1, 1993, or if incurredor assumed after such date is “qualified acquisitionindebtedness.” 156 Although the statute does not define a “tradeor business,” that term is defined elsewhere in the Code, andthere is no reason the definition should not apply to similarlanguage found in § 108. 157 The term “property used in the tradeor business” means property used in the trade or business that issubject to an allowance for depreciation; because it is held formore than one year; it is not inventory or property held primarilyfor sale to customers in the ordinary course of business. 158 Theexclusion for QRPBI is elective, and the election is made on Form982. 159As previously noted, indebtedness incurred or assumed afterJanuary 1, 1993 must constitute “qualified acquisitionindebtedness.” 160 The term “qualified acquisition indebtedness”is defined as indebtedness incurred or assumed to acquire,153. See Eric C. Green & Ray Sparkman, Consequences of Discharge ofNonrecourse Indebtedness, 67 J. TAX’N. 18 (1987). But see Estate of Newman v.Comm’r., 934 F.2d 426, 430 (2d Cir. 1991) (rejecting an increase in basis inpartnership interest under I.R.C. § 705(a)(1)(B) (2006) involving debt dischargeat partnership level involving insolvency exception).154. I.R.C. § 108(a)(1)(d) (2006).155. Id.156. I.R.C. § 108(c)(3).157. See generally Treas. Reg. § 1.162-1 (1960).158. I.R.C. § 1231(b)(1).159. I.R.C. § 108(c)(3)(C).160. I.R.C. § 108(c)(3)(B).258

2011] Tax Aspects—Financially Troubled Entitiesconstruct, reconstruct, or substantially improve such property. 161There are two principal limitations applicable to QRPBI. Theamount of QRPBI that can be excluded from gross income cannotexceed the outstanding principal amount of the indebtednessimmediately before the discharge over the fair market value ofthe real property used in the trade or business reduced by theoutstanding principal amount of any other real property businessindebtedness that secures the property at the time the debt isdischarged. 162 The regulations provide that the outstandingprincipal amount means the principal amount of indebtednesstogether with all additional amounts owed that, immediatelyprior to the discharge, are equivalent to principal; unamortizedpremium and discount are not included in principal. 163The second limitation provides that the amount of QRPBIexcluded from gross income cannot exceed the aggregate adjustedbases of depreciable real property held by the taxpayerimmediately before the discharge (other than depreciable realproperty acquired in contemplation of the discharge) reduced bythe sum of any (a) depreciation claimed for the taxable year thatthe taxpayer excluded the cancellation of indebtedness incomefrom gross income, and (b) reductions to the adjusted bases ofdepreciable real property required under §§ 108(b) and 108(g) forthe same taxable year. 164If the taxpayer makes the election to exclude QRPBI fromgross income, then the taxpayer must reduce the basis of thetaxpayer’s depreciable real property. 165 This reduction in the taxbasis has the effect of spreading depreciation deductions overtime, as contrasted to bunching debt discharge income in oneyear. The Code provides that the basis reduction must be madeas of the time immediately before the property is disposed or, ifearlier than the beginning of the taxable year, following thetaxable year of the debt discharge. 166161. I.R.C. § 108(c)(4).162. I.R.C. § 108(c)(2)(A).163. Treas. Reg. § 1.108-2(e)(2)(iii) (2009).164. I.R.C. § 108(c)(2)(B).165. I.R.C. § 1017(a).166. I.R.C. § 1017(b)(3)(F).259

CHARLESTON LAW REVIEW [Volume 5C. Attribute Reduction and § 1017(b)(3)Where there is exclusion from gross income attributable to adischarge in a Title 11 case or an insolvency situation, a taxpayermay be able to take advantage of the tax attribution rules. 167However, these provisions are of no real significance in thesituations being discussed, because the exemption only applies atthe partner level. 168 On the other hand, the attribution reductionrules pertain to the case in which there is discharge of QRPBIunder § 108(c)(1). Where there is an election to reduce the basisof depreciable property under § 108(b)(5), then any interest of apartner in a partnership is treated as depreciable property to theextent of the partner’s proportionate interest in the depreciableproperty held by such partnership, provided that there is acorresponding reduction in the partnership’s basis in depreciableproperty with respect to such partner. 169As a general rule, a partner may choose whether or not torequest that a partnership reduce the inside basis of itsdepreciable real property with respect to such partner, and thepartnership may grant or withhold such consent, in its solediscretion. A request by the partner must be made before thedue date for filing the taxpayer’s federal return for the taxableyear in which the taxpayer has cancellation of indebtednessincome that is excluded from gross income under § 108(a). 170 Apartnership must consent to reduce its partners’ shares of insidebases with respect to a discharged indebtedness if consent isrequested with respect to such indebtedness by partners owning,directly or indirectly, an aggregate of more than 80% of thecapital and profits interests of the partnership or five or fewerpartners owning, directly or indirectly, an aggregate of more than50% of the capital and profits interests of the partnership. 171 Forexample, if there is a cancellation of partnership indebtednessthat is secured by real property used in a trade or business, and260167. I.R.C. § 108; see also I.R.C. § 1017.168. I.R.C. § 108(d)(6).169. Treas. Reg. § 1.1017-1(g)(2)(ii)(A) (2009).170. § 1.1017-1(g)(2)(i).171. § 1.1017-1(g)(2)(ii)(C).

2011] Tax Aspects—Financially Troubled Entitiesif partners owning in the aggregate 85% of the capital and profitsinterests of the partnership make an election to excludecancellation of indebtedness income, the partnership is requiredto make the required reductions in those partners’ shares ofinside bases. A consenting partnership statement must beincluded with the filing of the partnership return for the taxableyear following the year that ends with or within the taxable yearthe taxpayer excludes the cancellation of indebtedness income. 172A partner’s proportionate share of the partnership’s basis indepreciable real property is equal to the sum of the partner’s §743(b) basis adjustments to items of depreciable real propertyand the common basis depreciation deductions that arereasonably expected to be allocated to the partner over theproperty’s remaining useful life. 173 The assumptions made by thepartnership in determining the reasonably expected allocation ofdepreciation deductions must be consistent for each partner. 174D. Conversion of Distressed Partnership to a C CorporationPresumably, consideration will be given to a conversion of thedistressed partnership to a corporation in order to trap income atthe corporate level or to take advantage of the exemption rulesunder § 108 for bankruptcy or insolvency. The conversioncould take the form of three basic fact patterns. 175 In the firstsituation, the partnership would contribute its assets to a newcorporation in exchange for stock and the assumption of theliabilities of the corporation. 176 The stock of the new corporationwould then be distributed to the partners. The second techniqueinvolves liquidation by the partnership of its assets andliabilities, followed by a contribution of assets and liabilities to anew corporation in exchange for the corporation’s stock. 177 Thethird situation is one in which the partners transfer theirpartnership interests to a new corporation in exchange for the172. § 1.1017-1(g)(2)(iii)(A).173. § 1.1017-1(g)(iv)(A)(1).174. § 1.1017-(g)(2)(iv)(A).175. I.R.C. § 351 (2006).176. Id.177. Id.261

CHARLESTON LAW REVIEW [Volume 5corporation’s stock. All three transactions are governed by§ 351. 178There are, however, a number of problems associated with aproposed conversion to corporate form. First, in these types ofdistressed asset situations, one usually finds that the aggregatedliabilities to be assumed by the corporation are in excess of theaggregated adjusted tax bases of the properties. 179 Althoughthere is a general rule that a corporation’s assumption ofliabilities does not constitute “boot” under § 351, there is a carveoutfor liabilities in excess of boot. 180 Under § 357(c) where theliabilities assumed by the corporation exceed the total of theadjusted tax bases of the properties transferred in the exchange,the taxpayer will recognize gain upon the exchange. 181 Thisproblem will not be cured by a contemporaneous transfer of highbasis assets by the partners because the bases of these separatelycontributed assets are not counted for purposes of the § 357(c)analysis. 182 If there is a significant § 357(c) problem, a directcontribution of assets by the partnership will be out of thequestion.If the parties utilize the second alternative, which is aliquidation by the partnership followed by a contribution ofassets to the corporation, then the partnership will not recognizegain or loss. 183 A partner will not recognize gain or loss on theliquidation except to the extent any money distributed exceedsthe partner’s tax basis in his partnership interest immediatelybefore the distribution. 184 The former partners will recognizegain on the subsequent transfer of assets and liabilities to a newcorporation if there is an excess of liabilities over basis of assets178. Id.; see, e.g., Rev. Rul. 2004-59, 2004-1 C.B. 1050 (involving a situationin which a partnership converts to a corporation pursuant to a state lawformless conversion statute).179. I.R.C. § 357 (2006).180. See I.R.C. § 357(c).181. Id.182. I.R.C. § 357(c)(1).183. I.R.C. § 731(b).184. I.R.C. § 731(a)(1). However, there is a special rule relating to therecognition of losses where money, unrealized receivables, and inventory aredistributed. See I.R.C. § 731(a)(2).262

2011] Tax Aspects—Financially Troubled Entitiesunder § 357(c). On the other hand, if appreciated assets are alsocontributed, then the § 357(c) issue is resolved at the partnerlevel, and there may be only a small problem or no problem at allwith respect to the issue of liabilities in excess of basis.If the transaction is structured as a transfer of partnershipinterests by the partners to a corporation in exchange for stock,the transaction will be subject to § 351 and there will be no gainrecognized by the partners, provided there is no boot. 185 On theother hand, if liabilities exceed tax basis of assets, there shouldbe boot by reason of the fact that the liabilities of the partnershipshould be attributed to the partners and subjected to gain under§ 357(c). 186In addition to the § 357(c) problem, one must also considerthe application of § 269. 187 Section 269(a) provides that if ataxpayer acquires control of a corporation, “and the principalpurpose of the acquisition was the evasion or avoidance of federalincome tax by securing the benefit of a deduction, credit, or otherallowance that such person of corporation would not otherwiseenjoy, then the Secretary [of the Service] may disallow suchdeduction, credit or other allowance.” 188 There is an extendedbody of case law concerning this section, and in many cases thetaxpayer has prevailed. 189 Without reviewing such section andthe cases pertaining thereto, there is a far greater problem. Thisproblem relates to the codification of the economic substancedoctrine in new § 7701(o), which came into effect on March 20,2010. 190The new statute requires a transaction to satisfy bothobjective and subjective elements in order to pass the economicsubstance doctrine. 191 The economic substance doctrine was185. I.R.C. § 357(c)(1)(A).186. Rev. Rul. 80-323, 1980-2 C.B. 124.187. See I.R.C. § 269.188. I.R.C. § 269(a).189. See, e.g., Supreme Inv. Corp. v. United States, 468 F.2d 270 (5th Cir.1972); see also World Serv. Life Ins. Co. v. United States, 471 F.2d 247 (8th Cir.1973).190. The Health Care and Education Reconciliation Act of 2010 added I.R.C.§ 7701(o).191. I.R.C. § 7701(o).263

CHARLESTON LAW REVIEW [Volume 5based on judicially developed case law, and under such case lawthe taxpayer could be denied the tax results if the transactionlacked substance or economic reality. Given the tax objectives ofthe conversion, it would appear that the taxpayer would have avery difficult time trying to circumvent the new statute.VI. FINANCIALLY DISTRESSED S CORPORATIONSThis portion of the paper will address issues similar to thoseraised in the partnership or LLC context, but the focus will be onthe financially distressed S corporation. For purposes ofdiscussion, it is assumed that the S corporation commencedbusiness as a S corporation and was not originally a Ccorporation. One important difference between a partnership anda S corporation is that the insolvency test for a partnership is atthe partner level and not at the partnership level. On the otherhand, the insolvency test under § 108 applies at the corporatelevel, thereby allowing the taxpayer to take advantage of theinsolvency exception under such section. 192In view of the fact that a S corporation is a conduit for taxpurposes, taxable cancellation of indebtedness income will not betaxable at the entity level, and such income will be spread on apro rata basis to each of the shareholders. 193 Taxable cancellationof indebtedness income should result in an increase in theshareholder’s basis. 194 Because the S corporation cannotdistribute cancellation of indebtedness income, such incomeshould increase the corporation’s accumulated adjustmentsaccount. 195In the case of an insolvent S corporation, cancellation ofindebtedness income is not taxable. 196 As a tradeoff for beingable to deduct this from taxable income, the S corporation isrequired to reduce tax attributes. 197 The most significant assetsthat can be reduced in terms of tax attributes relates to the bases264192. I.R.C. § 108(d)(7)(A) (2006).193. I.R.C. § 1377(a)(1)(B).194. I.R.C. § 1367(a)(1).195. I.R.C. § 1368(e)(1)(A).196. I.R.C. § 108(a)(1)(B).197. I.R.C. § 108(b)(1).

2011] Tax Aspects—Financially Troubled Entitiesof assets held by the corporation. 198Tax attribute reduction is applied at the corporate level andany cancellation of indebtedness income of a S corporation that isexempt under § 108(a) does not pass through to the shareholdersof the corporation under § 1366(a). 199 Moreover, any loss ordeduction of a S corporation that is disallowed for the taxableyear in which the debt discharge occurs is treated as a netoperating loss for purposes of § 108(b)(2)(A) (relating to taxattribute reduction rules). 200In Gitlitz v. Commissioner, 201 the Supreme Court held thatcancellation of indebtedness income of a S corporation was to beallocated to the shareholders and result in an increase in thebasis of their shares. 202 The increased basis in stock allowedsuspended losses of the corporation to pass through to theshareholders before the corporation is required to reduce its taxattributes (including the suspended losses). 203 Section 108(d)(7)reversed the result in Gitlitz. As a result of the change, excludedcancellation of indebtedness income will not increase the stockbasis of a S corporation shareholder and, thus, will not allowsuch shareholder to utilize losses that would otherwise haveconstituted suspended losses (the suspended losses would then beavailable to be used for attribute reduction). In effect, the newrule prohibits the use of excluded income to generate a basisstep-up, and then use such shield to trigger attribute reduction.A. Indebtedness Contributed to CapitalIn the case of a C corporation, a capital contribution of debt istreated as though the corporation had satisfied the indebtednesswith an amount of money equal to the shareholder’s adjustedbasis in the indebtedness. 204 The rule is different in the case of aS corporation. The Code allows a contributing S shareholder to198. I.R.C. § 108 (b)(2)(E)(i).199. I.R.C. § 108(d)(7)(A); I.R.C. § 1366(a).200. I.R.C. § 108(d)(7)(B).201. 531 U.S. 206 (2001).202. Gitlitz v. Comm’r, 531 U.S. 206, 220 (2001).203. Id.204. I.R.C. § 108(e)(6)(B); I.R.C. § 108(d)(7)(c).265

CHARLESTON LAW REVIEW [Volume 5use his original basis for the debt, and not reduce such amountby any adjustments under § 1367(b)(2). The shareholder shouldincrease his basis in the stock by his basis in the contributeddebt. 205In the case of a partnership, if the partnership transfers acapital or profits interest to a creditor in satisfaction of itsrecourse or nonrecourse indebtedness, the partnership will betreated as having satisfied the debt with an amount of moneyequal to the fair market value of the partnership interest. 206 Thisrule also applies to corporations, but in the context of new capitalbeing exchanged for debt. 207B. Identity of a LenderGiven the wide use of securitization vehicles, a creditor of adistressed asset might be a real estate mortgage investmentvehicle (REMIC), a real estate investment trust (a REIT), or aregulated investment company (RIC). In the case of a REMIC,the service provider may be constrained in terms of the flexibilitythat it has to modify debt instruments. REITs and RICs may faceproblems in terms of altering debt investments due to thepresence of foreign investors, tax-exempt entities and certaintests concerning the characterization of the income that is beinggenerated.C. Reacquisition of Debt InstrumentsSection 108(i), added by the American Recovery andReinvestment Act of 2009, permits partnerships and otherdebtors to defer cancellation of indebtedness income from certaintypes of discharges occurring in 2009 and 2011. 208 Assuming thatthere is an election attributable to an applicable debt instrument,the debt discharge income will be includible in gross incomeratably over a five-year period. 209 As a general rule, § 108(i)(2)266205. I.R.C. § 108(d)(7)(C).206. I.R.C. § 108(e)(8).207. Id.208. I.R.C. § 108(i)(1).209. Id.

2011] Tax Aspects—Financially Troubled Entitiesmandates an adjustment for original issue discount accruingwith respect to a debt instrument that is issued in exchange forthe original debt instrument. 210An “applicable debt instrument” is defined as any debtinstrument not “issued by a C corporation or any other person inconnection with” carrying on a trade or business. 211 “Debtinstruments” include any “bond, debenture, note certificate, orany other instrument or contractual arrangement constitutingindebtedness . . . .” 212A “reacquisition” of a debt instrument is defined as an“acquisition” of a permissible debt instrument by: (a) the debtoror (b) a “related” party to the debtor, and the term “acquisition”includes: (i) an acquisition of a debt instrument for cash; (ii) theexchange of a debt instrument for another debt instrument(including an exchange relating from a debt modification); (iii)the exchange of a partnership interest for a debt instrument; (iv)the contribution of a debt instrument to the capital of the issuer;and (v) the complete forgiveness of a debt instrument by a holderof the debt obligation. 213The statutory exclusions for qualified real property businessindebtedness do not apply to the cancellation of a taxpayer thatmakes the § 108(i) election for the year in which the taxpayermakes the election or any subsequent year. 214 The taxpayermakes the § 108(i) election, which is irrevocable, by attaching astatement to the taxpayer’s return for the taxable year in whichthe reacquisition occurs. 215D. Ordinary Income/Capital Gains IssuesTo the extent that a partner will generate income, taxplanning should focus on ordinary income versus capital gain210. I.R.C. § 108(i)(2).211. I.R.C. § 108(i)(3)(A).212. I.R.C. § 108(i)(3)(B).213. I.R.C. § 108(i)(4).214. I.R.C. § 108 (i)(5)(C). A similar rationale applies to the statutoryexclusions for insolvency, bankruptcy and qualified farm indebtedness. Seegenerally I.R.C. § 108.215. I.R.C. § 108(i)(5)(B).267

CHARLESTON LAW REVIEW [Volume 5rates and whether, for example, a partner can absorb a deemeddistribution. 216 More specifically, cancellation of indebtednessincome constitutes ordinary income, whereas gain generatedunder § 731 is capital gain. If the partner has capital losses onother transactions, the capital gain can be applied to soak upsuch capital losses.In the event that a solvent partner has significant basis inhis partnership interest, such partner may be able to absorb adeemed § 752 distribution, which is far more advantageous thanbeing subjected to ordinary taxation in the case of cancellation ofindebtedness income.VII. CONCLUSIONThis Article has attempted to highlight a number of issuesand problems that may very well occur in the context ofrestructuring troubled debt. In addition to technical problems,there is always the issue of whether a debtor has a goodrelationship with his creditor in order to increase the chances ofworking out these thorny economic and tax problems. Finally, inthe event that the debtor and creditor cannot come to terms on aworkout arrangement, a bankruptcy filing may be called for. Oneclear benefit of bankruptcy is that it allows the parties additionaltime to effectuate a consensual reorganization or a cram downpursuant to Chapter 11.268216. I.R.C. § 752.

ALTERNATIVE JUSTIFICATIONS FOR LAWSCHOOL ACADEMIC SUPPORT PROGRAMS:SELF-DETERMINATION THEORY, AUTONOMYSUPPORT, AND HUMANIZING THELAW SCHOOLLouis N. Schulze, Jr. I. INTRODUCTION ............................................................... 271II. WHAT IS LAW SCHOOL ACADEMIC SUPPORT? ......... 273A. Law School Academic Support Programs ................... 274B. A Brief History of Law School Academic Support ...... 274C. The Current Methodologies of ProvidingAcademic Support ........................................................ 2781. Pre-Law School Academic Support Methods ......... 2792. First-Year Academic Support Methods .................. 2803. Upper-Class Academic Support Methods .............. 2854. Post-Law School Academic Support Methods ........ 288III. WHAT IS “HUMANIZING LEGAL EDUCATION”? ........ 288A. A Brief History of the Humanizing Movement ............ 289B. What Is “Humanizing Legal Education”? .................... 290C. Why Humanize Legal Education? ................................ 2941. Improving Student Learning .................................. 2942. Creating an Environment Less PsychologicallyHarmful to Students ............................................... 2963. Providing an Environment More Open toFemale Law Students and Students of Color ........ 298 Associate Professor of Law and Director, Academic Excellence Program, NewEngland Law | Boston. I extend my thanks to Professors Elizabeth Bloom andLawrence Friedman (both of New England Law | Boston), Ruth Ann McKinney(of University of North Carolina School of Law), and Michael Hunter Schwartz(of Washburn University School of Law) for their insight on this piece. I alsothank those who commented upon my Work-in-Progress presentation of thispaper at the Law School Admissions Council, Academic Assistance Workshop,Elon University School of Law in June of 2010. My research assistant, NicoleDapcic, significantly improved this paper, and I thank Dean John O’Brien andNew England Law | Boston for supporting this project.269

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5IV. WHAT ARE SELF-DETERMINATION THEORYAND AUTONOMY SUPPORT? ......................................... 300A. What Is Self-Determination Theory? ........................... 300B. What Is Autonomy Support? ........................................ 303V. ANALYSIS: HOW ACADEMIC SUPPORTHUMANIZES THE LAW SCHOOL, FULFILLS SELF-DETERMINATION THEORY, AND INCREASESAUTONOMY SUPPORT .................................................... 305A. Academic Support’s Role in Humanizingthe Law School ............................................................. 3051. Humanizing Tenet Number One: “Do No Harm” .. 306a. ASP Skills Workshops Helping to“Do No Harm” .................................................... 306b. ASP Career Advice as Helping to“Do No Harm” .................................................... 307c. ASP Community Building as Helping to“Do No Harm” .................................................... 3092. Humanizing Tenet Number Two: “TeachStudents, Not Subjects” .......................................... 310a. Individualized Academic Counseling as “TeachStudents, Not Subjects” .................................... 310b. ASP Collaborative Methods as “TeachingStudents, Not Subjects” ................................... 313c. ASP Focus on Learning Styles Theory as“Teach Students, Not Subjects” ........................ 3153. Humanizing Tenet Number Three: “Peaceand Justice” ............................................................. 317B. Academic Support’s Role in EmpoweringStudent Self-Determination and in IncreasingPerceived Autonomy Support ...................................... 3201. Self-Determination Theory FacetNumber One: Competence ...................................... 3212. Self-Determination Theory FacetNumber Two: Autonomy ......................................... 3233. Self-Determination Theory FacetNumber Three: Relatedness ................................... 327270

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supporta.How Law Schools Traditionally Failat Providing Relatedness ................................. 327b. Academic Support Methods’ Rolein Providing Relatedness ................................. 327VI. CONCLUSION ...................................................................... 330I. INTRODUCTIONA problem exists in law schools on the issue of academicsupport. While some schools now include extensive academicsupport opportunities within their curricula, many other schoolsdevote few resources to this endeavor while simultaneouslyadvertising to the contrary on their websites. Although manylaw schools boast of pervasive academic support services forstudents, oftentimes the truth is that one administrator orfaculty member serves as the sole avenue of academic support,and that person’s overall duties dwarf the amount of time theyspend on support. So why do some schools find it crucial toadvertise academic support but fail to fund it adequately?Perhaps a law school administration’s reticence to commitsubstantially to academic support is predicated upon an inabilityof those programs to guarantee demonstrable results. Althougha dean’s definition of the term “results” might differ from that ofthe faculty, generally both parties want to see two things: betteracademic performance by the law school’s students and anincrease in the rate at which the school’s graduates pass the barexamination. As a result, proponents of academic supportprograms have generated articles attesting to demonstrateempirical evidence of such results. 1 Meanwhile, naysayers1. See Leslie Yalof Garfield & Kelly Koenig Levi, Finding Success in the“Cauldron of Competition”: The Effectiveness of Academic Support Programs,2004 BYU EDUC. &L.J. 1, 24 (2004) (arguing that “there was a significantdifference between” the first-semester GPA of the participants in the WorkshopSeries to those of all non-participants); Linda Jellum & Emmeline PauletteReeves, Cool Data on a Hot Issue: Empirical Evidence that a Law School BarSupport Program Enhances Bar Performance, 5 NEV. L.J. 646, 648 (2005)(“[S]tatistical analysis supports the conclusion that a bar support program[housed within the ASP] has improved the University of Richmond School ofLaw’s bar passage rate.”); Adam G. Todd, Academic Support Programs: EffectiveSupport Through a Systemic Approach, 38 GONZ. L.REV. 187, 189 (2002–2003)271

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5criticize the empiricism of such articles 2 and suggest thatacademic support is not cost-effective because it fails to converteach underperforming student into a successful one. Settingaside for a moment the important project of empirically provingthe impact of academic support, the question arises whetherother factors might justify the expansion of these sorts ofservices. This Article examines alternative justifications for lawschool academic support programs (ASPs) beyond statisticalanalyses of grade point average (GPA) or bar passageimprovement.This Article’s thesis is two-fold. First, ASPs help humanizethe law school environment. By providing a source ofencouragement and assistance in an environment too oftendevoid of any positive support, ASPs can leave students feelingthat their law school actually cares whether they succeed. Forthose in academia who believe that providing a more humane lawschool environment is an admirable and worthwhile goal, thisArticle serves to prove that ASPs contribute to providing thatenvironment. Second, ASPs help a law school satisfy conditionsof self-determination theory (SDT) and, relatedly, provide“autonomy support.” There are three factors generally associatedwith autonomy support: (1) choice—professors of the law schoolprovide students with as much choice as possible; (2) rationale—when providing choice is not feasible, professors or the law schoolexplain why; and (3) perspective—professors or the law schooldemonstrate that they care about the viewpoints of the students. 3In a recent study, students who experience “greater autonomysupport had greater basic need satisfaction, performed better—asmeasured by (normalized) grade achievement and passage oftheir bar examination, had more internal motivation when(“As a result of [Chase College of Law expanding ASPs and other services,] barpassage has improved dramatically.”).2. See Jonathan L. Entin, Scholarship About Teaching, 73 CHI.-KENT L.REV. 847, 855–56 (1998) (arguing that “one-shot case studies” and “static-groupcomparisons” are not reliable in determining internal validity—whether theeducational program made a difference—and external validity—whether theresults can be reproduced by the general population).3. Gerald F. Hess, Collaborative Course Design: Not My Course, Not TheirCourse, but Our Course, 47 WASHBURN L.J. 367, 369 (2008) (discussing SDT).272

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportseeking a lawyer position, and were happier.” 4 As such, if anASP provides autonomy support, it will indirectly provide anincreased likelihood of real learning and thus professionalsuccess.Part II of this Article further explores what is meant by ASP;it chronicles the historical development of law school ASPs andexplains some of the methods these programs now employ. PartIII discusses the “Humanizing the Law School” movement anddescribes the general philosophies and goals of the project,allowing a subsequent demonstration of how ASPs fulfill thesegoals. Part IV focuses on the psychological concepts of SDT andautonomy support. Part V analyzes exactly how the methods ofacademic support fulfill the goals of the humanizing movementand lead to an increase in perceived autonomy support instudents; it refers to specific examples of law school ASP methodsto prove this point. Part VI concludes that more schools shouldadopt or expand ASPs and introduces an empirical study testingthe dual theses of this Article that will be published in asubsequent piece.II. WHAT IS LAW SCHOOL ACADEMIC SUPPORT?Proving the thesis that ASPs humanize legal education,enhance self-determination, and provide autonomy supportrequires the initial step of defining these terms. Unfortunately,these three terms may be foreign to many members of the legalacademy. ASPs all too frequently are virtually hidden fromfaculty at many law schools, oftentimes due to ASP professionals’relatively marginalized position in the hierarchy of the lawschool structure. This is a disservice to all because, upon closerinspection, many doctrinal faculty would find that ASPprofessionals share many of the same methods and goals astraditional casebook instructors. As such, with the hope ofshedding light on such common ground, this section details theterm ASP.4. Lawrence S. Krieger, Human Nature as a New Guiding Philosophy forLegal Education and the Profession, 47 WASHBURN L.J. 247, 262 (2008).273

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5A. Law School Academic Support ProgramsThe term ASP has come to mean different things to differentpeople. At one school it can include a focus purely on bar passagerate; at another school an ASP can focus almost exclusively onsupporting first-year students. The success of an ASP dependslargely upon tailoring its structure around the needs andresources of the law school it serves. Accordingly, defining theterm ASP is difficult.Nonetheless, scholars have offered several possibilities.Professor Sheilah Vance defines an ASP as “a comprehensiveprogram designed to help law students succeed academicallythrough a combination of substantive legal instruction, studyskills, legal analysis, legal writing, and attention to learningstyles.” 5 This serves as an adequate starting place, but for amore detailed understanding of what ASPs are all about, onemust look at their historical development and understand whatthey offer now.B. A Brief History of Law School Academic SupportUnlike other sectors of the academy, law schools were slowerto adopt academic support. Perhaps this is not surprising giventhe sink-or-swim mentality of the traditional law school or thehardscrabble attitude of many lawyers. Undergraduate academicsupport efforts began in the 1960s in an attempt to provideacademic counseling to struggling students. 6 These programsworked with at-risk students, and most in the field urged a onesize-fits-allmethodology focused on remedying poor study skills. 7After initial reports of favorable results, more thorough empiricalanalyses demonstrated that most of the success attained by suchprograms was either short-lived or overstated. 85. Sheilah Vance, Should the Academic Support Professional Look toCounseling Theory and Practice to Help Students Achieve?, 69 UMKC L. REV.499, 503 n.24 (2001).6. Paul T. Wangerin, Law School Academic Support Programs, 40HASTINGS L.J. 771, 773 (1989).7. Id.8. Id.274

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic SupportIn response, undergraduate ASPs went back to the drawingboard. Evidence emerged in the 1970s that programs tailored toaddress students’ individual weaknesses and strengths providedactual long-term benefits. 9 This effort begat the now commonpractice of beginning academic support efforts with anindividualized assessment of the root causes of a student’sacademic difficulties. 10 Other methods soon developed that led tostatistically demonstrable positive results. 11 Although debatestill exists on the efficacy of undergraduate academic support, itis generally accepted that a sophisticated program using effectivemethodology can lead to significant and real improvements instudents’ success.Law schools finally caught on fully during the 1980s withisolated academic support efforts arising out of legal writingprograms, the Black Law Students Association, and othergroups. 12 Although other predecessors existed, 13 academic9. Id. at 773–74.10. Id. at 778.11. Id. at 781–83. For instance, Professor John Roueche of the Universityof Texas proved that casual programs (those run informally and part-time byprofessors) showed little effectiveness. Id. at 781. Further, faculty participationin such programs had to be voluntary and not compulsory. Id. Roueche alsoshowed that successful programs also usually include a course on study skills,provide academic credit to participants, and use the assistance of peer orstudent tutors. Id. at 781–83. See generally JOHN E. ROUECHE ET AL., COLLEGERESPONSES TO LOW-ACHIEVING STUDENTS: ANATIONAL STUDY (1984) (conductinga national study seeking to discover and report how American colleges anduniversities organize, staff, and operate various programs to meet the needs oflow-achieving students).12. See Ellen Yankiver Suni, Academic Support at the Crossroads: FromMinority Retention to Bar Prep and Beyond—Will Academic Support ChangeLegal Education or Itself Be Fundamentally Changed?, 73 UMKC L. REV. 497,497–98 (2004) (“Academic support as a concept emerged in the 1980’s, largely asan outgrowth of the influx of minorities into law school and the desire todiversify the legal profession and legal education.”). The literature on the originof the law school academic support movement is a bit unclear as to the decadewhen the movement started. Compare Jean Boylan, The Admission NumbersAre Up: Is Academic Support Really Necessary?, 26 J. JUV. L.1, 1–2 (2006)(asserting that law school ASPs began in the 1960s), and Kathy L. Cerminara,Remembering Arthur: Some Suggestions for Law School Academic SupportPrograms, 21 T. MARSHALL L. REV. 249, 252 (1996) (“Law schools began todevelop academic support programs to assist students admitted under theiraffirmative action admissions programs in the 1960s and 1970s.”), with RichardCabrera & Stephanie Zeman, Law School Academic Support Programs—A275

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5support as a movement dawned with the Access 2000conference, 14 gained momentum with a full day mini-workshop atthe Association of American Law Schools (AALS) meeting in1989, 15 and coalesced in earnest in 1992 with the Law SchoolSurvey of Available Academic Support Programs for the New Century, 26 WM.MITCHELL L. REV. 205, 205 (2000) (“[ASPs] are relatively new phenomena atUnited States law schools. [ASPs] in law schools began as an attempt toemulate undergraduate programs which began in the early 1960s . . . .”). A fairaccount of the situation would recognize that law school ASPs can trace theirroots to responses to the needs created by the affirmative action initiatives ofthe 1960s. See Leslie Yalof Garfield, The Academic Support Student in the Year2010, 69 UMKC L. REV. 491, 492 (2001). For instance, in 1966, Harvard’ssummer program recruited students from southern black colleges andintroduced them to the possibility of applying to law school and pursuing a legalcareer. Albert Y. Muratsuchi, Race, Class, and UCLA School of LawAdmissions, 1967–1994, 16 CHICANO-LATINO L. REV. 90, 92 (1995). Whileisolated efforts such as these existed, the academic support movement, per se,really did not get its collective foot in the door, systemically until the 1980s. SeeGarfield & Levi, supra note 1, at 1 (noting the adoption of ASPs at law schools“[f]or the past three decades”).13. For instance, the first centralized effort at providing academic supportby means of a pre-law school program emerged in the Council on LegalEducation Opportunity (CLEO) Institutes. Starting in the 1960s, the CLEOSummer Institute could be characterized as the predecessor to the academicsupport movement in that, like current pre-law school initiatives offered byASPs, CLEO offered minority students a “rigorous pre-law preparatorysummer” experience aimed at introducing students to law school, lawprofessors, and law school exams. Elizabeth Rindskopf Parker & Sarah E.Redfield, Law Schools Cannot Be Effective in Isolation, 2005 BYU EDUC. &L.J.1, 11 (2005) (internal quotation marks omitted); see also Wangerin, supra note6, at 775 (“CLEO administrators invite minority students with inadequatestandardized test scores and undergraduate grades to attend free summerprograms.”).14. See Paula Lustbader, From Dreams to Reality: The Emerging Role ofLaw School Academic Support Programs, 31 U.S.F. L. REV. 839, 842 & n.12(1997). Access 2000: The Challenge to Insure Diversity in the Legal Professionwas the first major conference at which law school ASP issues were discussed.Id.; see also Judith J. Devine & Jennifer D. Odom, Do Academic SupportPrograms Reduce the Attrition Rate of First-Year Law Students?, 29 T.MARSHALL L. REV. 209, 214 n.22 (2004) (stating that the Law School AdmissionsCouncil “committed funds and personnel for ASP workshops and an ASP guidefor law schools”).15. Lustbader, supra note 14, at 842. Other “round table” forums wereorganized at subsequent AALS annual conferences, all focusing on the emergingfield of law school academic assistance. Id. Also, the Law School AdmissionsCouncil “committee on minority affairs . . . promote[d] the proliferation of ASPsby retaining a consultant who: researched existing programs to collect a variety276

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic SupportAdmission Council’s five-day institute at the University ofColorado in Boulder. 16An early goal in this movement was finding a model ASPframework. In hindsight, this appears to be a similar misstep tothat taken by undergraduate ASPs, which focused for some timeon a “one-size-fits-all” model of academic counseling. 17 Just asundergraduate academic support professionals realized thatacademic counseling had to be individualized to fit each student’sneeds, law school academic support professionals realized thateach law school “must consider the unique needs of its students,faculty, administration, and institution, as well as the availableresources.” 18 As the academic support movement solidified, thedevelopment of custom-tailored ASPs became a central facet ofmainstream thinking.The ASP movement has flourished in the last decade. 19 Mostlaw schools now have an ASP, 20 and many have a multi-facetedprogram design. 21 The American Association of Law Schoolsof program designs, instructional materials, and administrative models; createda manual for ASPs; [and] traveled to numerous schools to help them develop aprogram . . . .” Id.16. Id.; Suni, supra note 12, at 498. The Academic Assistance TrainingWorkshop in June of 1992 “was a Mecca for ASP professionals because it gavethem the opportunity to break through their respective isolation, and it createda synergy that carried professionals and their programs to unimagined newheights.” Lustbader, supra note 14, at 842; see also Suni, supra note 12, at 498(noting that previously many ASP professionals worked in “isolation at theirschools” and suggesting the ASP movement emerged “[a]s a result ofnetworking and information-sharing at that conference”).17. See supra notes 6–11 and accompanying text.18. Lustbader, supra note 14, at 842 n.13.19. See Suni, supra note 12, at 498 (stating that almost all schools nowreport having some form of academic support).20. Kevin H. Smith, Program Evaluation: Defining and Measuring“Success” in Academic Support Programs, 2003 MICH. ST. U.DET. C.L. L.REV.177, 178 (2003) (“The number of law schools with [ASPs] increased dramaticallyover the past decade. The vast majority of ABA-accredited law schools nowoffer some form of [ASP].”).21. See, e.g., Academic Advising, N.Y.L. SCH., http://www.nyls.edu/academics/academic_advising (last visited Oct. 23, 2010) (including a pre-lawschool summer legal methods course, weekly tutorial meetings with upper-classTeaching Fellows, a writing specialist, and Community Advising Groups);Academic Year Program, SEATTLE U. SCH. L., http://www.law.seattleu.edu/Academics/Academic_Resource_Center/Program_Overview/Academic_Year_Pro277

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5includes a section for Academic Support, 22 the Law SchoolAdmissions Council sponsors a biennial national workshop andmore frequent regional workshops, 23 and regional consortiums ofacademic support professionals have emerged. 24 The next sectionexplores the curricular design of these relatively new ASPs.C. The Current Methodologies of Providing Academic SupportAs previously mentioned, law schools must choose theacademic support methods that best suit their students, faculty,and curricula. As a result, law school academic support methodsaround the nation are diverse. Nonetheless, some methods havebecome mainstream, while others are more innovative.The methodologies of the law school academic supportcommunity can be sorted into four temporal categories: (1) prelawschool academic support, (2) first-year academic support, (3)upper-class academic support, and (4) post-law school academicsupport. 25 These categories will be discussed briefly in turn.gram.xml (last visited Oct. 23, 2010) (including first-year orientationworkshops, the use of second and third-year Teaching Assistants, and a barexam strategy workshop); Support, NEW ENG. L.|BOS., http://www.nesl.edu/exceptional/support.cfm (last visited Oct. 23, 2010) (including a first-year“Academic Excellence” class, a for-credit second year “Legal Analysis” class forstudents who underperformed in the first year, and a for-credit bar preparationcourse in the final semester of law school).22. See Association of American Law Schools Section on Academic Support,UMKC SCH. L., http://www.law.umkc.edu/faculty/profiles/glesnerfines/asp/asp.htm (last visited Oct. 22, 2010).23. See Suni, supra note 12, at 498 n.11. The biennial conferencesincluded Boulder in 1992, William & Mary in 1993, Hofstra in 1997, KansasCity in 2000, Seattle in 2002, Las Vegas in 2005, Miami in 2007, and St. Louisin 2009. Id. (Boulder in 1992, William & Mary in 1993, Hofstra in 1997, KansasCity in 2000, Seattle in 2002, Las Vegas in 2005); LSAC Academic AssistanceTraining Workshop Update, LAW SCH. ACAD. SUPPORT BLOG(Apr. 28, 2009), http://lawprofessors.typepad.com/academic_support/2009/04/lsac-academic-assistance-training-workshop-update.html (St. Louis in 2009);Great ASP Workshop in Miami, LAW SCH. ACAD. SUPPORT BLOG (June 25, 2007),http://lawprofessors.typepad.com/academic_support/2007/06/great-asp-works.html (Miami in 2007).24. See, e.g., BY-LAWS OF THE NEW ENGLAND CONSORTIUM OF ACADEMICSUPPORT PROFESSIONALS (NECASP) (2009) (on file with author).25. See Ricardo Villarosa & Ruth Ann McKinney, Conference Presentation:The Five W’s of Strong Academic Support Programs 2 (2008) (on file withauthor).278

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Support1. Pre-Law School Academic Support MethodsPre-law school academic support methods usually includeprograms that occur prior to the regular law school orientation.These programs introduce students to the various concepts theywill face in the near future: how law school classes are conducted,how legal problems are analyzed, how legal reasoning isachieved, etcetera. 26 Studies of these programs show mixedresults. Shorter pre-orientation programs usually show littleevidence of impact on students’ law school grades. 27 Moreexpansive programs, by contrast, such as the CLEO SummerInstitute, 28 show better results. 29 Regardless of any impact upongrades, these programs often have intangible yet important,consequences such as community-building, easing theapprehension of starting law school, providing a substantive26. See Cabrera & Zeman, supra note 12, at 210; see also Jean Boylan,Crossing the Divide: Why Law Schools Should Offer Summer Programs for Non-Traditional Students, 5 SCHOLAR 21, 27–30 (2002) (describing the types of inhousesummer programs as: (1) those focusing on legal skills; (2) those includingsubstantive classes; and (3) those providing mini-introductions to the law schoolenvironment).27. See Kristine S. Knaplund & Richard H. Sander, The Art and Science ofAcademic Support, 45 J. LEGAL EDUC. 157, 172–73 (1995) (“[T]he summerprogram [at one law school] clearly ha[d] no important effect on the academicperformance of students after their first semester of law school . . . .”).28. See What Is CLEO, CLEO SCHOLARS, http://www.cleoscholars.com/index.cfm?fuseaction=Page.viewPage&pageId=498&parentID=482&nodeID=2(last visited Oct. 22, 2010). CLEO was founded in 1968 “as a non-profit projectof the ABA Fund for Justice and Education to expand opportunities for minorityand low-income students to attend law school.” Id. CLEO offers a six-week,Pre-Law Summer Institute at a number of law school campuses. Id. TheSummer Institute is described as follows: “[d]esigned to evaluate the student’scapacity for learning the law while simultaneously acclimating them to the lawschool process, the curriculum is taught by full-time law professors andsimulates the rigors of the first year of law school.” What Is CLEO?, A.B.A.,http://www.abanet.org/cleo/whatis.html (last visited Oct. 22, 2010).29. Eulius Simien, The Law School Admission Test as a Barrier to AlmostTwenty Years of Affirmative Action, 12 T. MARSHALL L. REV. 359, 383–84 (1987)(focusing on law school graduation rate of CLEO alumnae as indicative of itssuccess). But see Knaplund & Sander, supra note 27, at 183 n.65 (suggesting,based on data admittedly lacking statistical significance, that the CLEOSummer Institute did not provide measurable academic improvement toparticipants).279

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5head-start, and supporting non-traditional law students. 302. First-Year Academic Support MethodsFirst-year academic support methods are myriad. Someprograms focus initially on students with academicindicators showing a potential for the need for assistance. 31Other programs focus primarily on minority or non-traditionallaw students. 32 Still other programs take a different approach,remaining open to all students and slowly narrowing in onstudents whose law school performance indicates the need forsupport. 33Oftentimes, the decision of which style of program toimplement depends upon the individual law school’s philosophyregarding the potential stigma students might feel as a result ofthe ASP. 34 For instance, a program focusing strictly on students30. See Boylan, supra note 26, at 26 (calling for all law schools to adoptpre-law school programs to offset the disadvantage suffered by students lackingcultural exposure to the Socratic method).31. See Garfield, supra note 12, at 494–96.32. See id.; see also Paula Lustbader, Walk the Talk: Creating LearningCommunities to Promote a Pedagogy of Justice, 4 SEATTLE J. SOC.JUST. 613, 629(2006) (noting that the ASP at Seattle University School of Law is for nontraditionalstudents).33. Dionne L. Koller, Legal Writing and Academic Support: Timing IsEverything, 53 CLEV. ST. L.REV. 51, 54–55 (2005–2006). For instance, manyASPs provide weekly or occasional workshops in the first semester, open to allstudents, which focus on study skills all students need, such as outlining, casebriefing,reading cases, etcetera. See, e.g., id. at 55. These programs oftenemploy individual counseling only at the behest of the student or if a professorrefers a student due to the observation of the need for support. Id. In thesecond semester, though, these programs may begin to target students forindividual counseling of other remedial measures based upon a student’sunderperformance on mid-year exams. Id. In this way, any stigmatizationeffect is not an artificial “self-fulfilling prophecy” because the student receiveddeficient grades prior to individual targeting for academic support. See CynthiaSchmidt & Ann L. Iijima, A Compass for Success: A New Direction for AcademicSupport Programs, 4 CARDOZO PUB. L.POL’Y &ETHICS J. 651, 680–81 (2006)(“[T]eachers’ expectations of students are communicated to the students byvarious cues, and that students respond to those cues by performing up or downto those expectations.”).34. Chris K. Iijima, Separating Support from Betrayal: Examining theIntersections of Racialized Legal Pedagogy, Academic Support, andSubordination, 33 IND. L.REV. 737, 773 (2000) (noting the stigma associated280

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportwith lower academic indicators, such as LSAT scores orundergraduate GPA, may run the risk of sending the message tothose students that the law school believes they are unlikely tosucceed or that such students have a history of failing at the lawschool. 35 As a result, some ASPs will eschew this approach toavoid any potential “self-fulfilling prophecy” 36 that studentstagged with the stigma of working with a “remedial” programultimately might fail because the school implicitly told them theywould fail.Philosophy aside, first-year ASPs employ a myriad ofdifferent methodological techniques. These include tutoring orguided study groups by successful upper-class students,workshops on study or exam skills, academic counseling,regularized classes, advising or mentoring programs, resourcelibraries, and faculty-provided feedback on student work. 37with participating in ASPs as a critical issue).35. See Koller, supra note 33, at 54–55 (discussing the stigma potentiallycreated by targeting students for academic support prior to signs of need); Todd,supra note 1, at 190 (arguing that a poorly run or underfunded ASP canactually harm students and hinder improvement in the legal academy).36. Schmidt & Iijima, supra note 33, at 680. This phenomenon occurswhen a student receives implicit or explicit input from the law school, causingthe student to believe that he or she has been “diagnosed” as likely to fail. Seeid. at 681. This student then internalizes this message, made all the morepowerful by the fact that professional educators (themselves trained in law)have come to this conclusion. The internalization of this message leads to thebelief by the student that, regardless of their hard work, they are destined tofail. As a result, the student works less diligently or, in the alternative, simplyencounters a diminished self-esteem regarding their academics; in either case,the student underperforms not due to any real deficiency they possessedentering the law school, but instead due to the perceived belief that they havebeen tagged as destined to fail. See id. (suggesting that “the stigma of offeringacademic support” can cause students to “perform down to their own loweredexpectations and to their perception of the law school’s expectations”).37. Cabrera & Zeman, supra note 12, at 209–10. An initial decision to bemade is whether to employ large classroom academic support, individualacademic support, or both. Large classroom academic support usually includesinstruction relevant to all first-year students. Topics often include outlining,case-briefing, reading cases, legal analysis, and others. See Ollivette E. Mencer,New Directions in Academic Support and Legal Training: Looking Back,Forging Ahead, 31 S.U. L. REV. 47, 51–54 (2004). The theory is that instead offorcing students to rely on the law school rumor mill to learn these skills,academic support classes provide centralized instruction so as to control themessage and lead students towards best practices. In theory, this does away281

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5Once academic counseling is initiated, it still can take manydifferent forms. One format is driven by the philosophy that thegoal of academic support should be to help students understandhow to teach themselves to learn more efficiently. This sort ofacademic counseling often focuses on meta-cognition—thinkingabout thinking, 38 focusing students on their preferred learningstyle, 39 and creating “self-learners”—students able to teachthemselves. 40 This approach plays into the notion of autonomywith the competition for the “best” outlines because all students have access tothe methodology of outlining. This, in turn, then humanizes the law school. SeeBarbara Glesner Fines, Fundamental Principles and Challenges of HumanizingLegal Education, 47 WASHBURN L.J. 313, 316 (2008) (“Legal education cannottruly be humanized while so many faculty members are wedded to aneducational philosophy grounded in a competitive ethos.”); Michael HunterSchwartz, Humanizing Legal Education: An Introduction to a SymposiumWhose Time Came, 47 WASHBURN L.J. 235, 235–36 (2008) [hereinafterSchwartz, Humanizing Legal Education] (“[L]aw schools should demonstraterespect for students, provide a supportive environment, encouragecollaboration, produce graduates who ‘nurture quality of life,’ ‘support studentautonomy,’ provide increased practice and feedback, meet the needs of allstudents by varying teaching methodologies, teach ‘self-reflection and lifelonglearning skills’ and ‘self-directed learning skills,’ and produce graduates whodemonstrate self-efficacy.”).Individualized academic support, by contrast, focuses on a student’sparticular strengths and weaknesses, thus necessitating an initial discussionwith the student aimed at discerning where academic support measures can betargeted. As a matter of resource conservation, many programs must choose tomake individual counseling available only to students with a demonstrateddeficiency, such as underperformance on mid-year exams. See Mencer, supra.But see Todd, supra note 1, at 192 (“Focusing solely on those students at thebottom of the law school class, unfortunately, has a tendency to marginalizethem.”). Otherwise, if academic counseling was available to all students, thoseat the top of the class, who are always hungry for any source of an edge, mightmonopolize the time of the academic support faculty at the expense of the moreevasive students at the bottom of the class who are more in need of suchcounseling.38. “Metacognition is a learner’s awareness of the learning process itself.”Jacquelyn H. Slotkin, An Institutional Commitment to Minorities and Diversity:The Evolution of a Law School Academic Support Program, 12 T.M. COOLEY L.REV. 559, 569 (1995); see Robin A. Boyle, Employing Active-Learning Techniquesand Metacognition in Law School: Shifting Energy from Professor to Student, 81U. DET. MERCY L. REV. 1, 2 (2003) (encouraging law professors to vary theirteaching styles to encompass active learning).39. See Robin A. Boyle & Rita Dunn, Teaching Law Students ThroughIndividual Learning Styles, 62 ALB.L.REV. 213, 245–46 (1998).40. See Paula Lustbader, Construction Sites, Building Types, and Bridging282

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportsupport because it posits the student as the party ultimatelyresponsible for decision making in the learning process. 41Another form of individual academic counseling is based onthe view that many underperforming students may need anauthority figure to hold them accountable for keeping up with thestudying and practicing techniques employed by students at thetop of the class. In this model, the academic support professor“assigns” the student study or practice work, indicating the “duedate” for such work. Obviously, the goal is not to add additionalwork to the student’s schedule, 42 but to assign the work thatother students are doing on their own initiative. For instance, astudent needing this sort of support might be required to attendher next academic support meeting having completed her Tortsoutline, ten multiple choice questions in each class, and oneContracts essay. These are study methods other students are—or should be—completing, but some students might need to hearthis message explicitly or have a set due date for motivation.When students complete these assignments, they then see theimprovements they have made in terms of their ability to processlaw, analyze legal problems, and teach themselves how to impactthe efficiency and effectiveness of their studies. In this way,academic support provides students with the ability to achievecompetence, a central facet of SDT.Another consideration in sculpting the methodology of thefirst-year component of an ASP is the degree to which theprogram should integrate doctrinal material. 43 The normativeGaps: A Cognitive Theory of the Learning Progression of Law Students, 33WILLAMETTE L. REV. 315, 319–30 (1997); Michael Hunter Schwartz, TeachingLaw Students to Be Self-Regulated Learners, 2003 MICH. ST. DCLL.REV. 447,452 (2003) [hereinafter Schwartz, Teaching Law Students]; see also Robin A.Boyle, Law Students with Attention Deficit Disorder: How to Reach Them, Howto Teach Them, 39 J. MARSHALL L. REV. 349, 373–77 (2006) (suggesting lawprofessors vary traditional teaching methods to reach students with attentiondeficit disorder).41. See infra Part V.A.2.42. In fact, it has been noted that assigning additional work to theschedule of underperforming law students can be detrimental to their likelihoodof success. See Mencer, supra note 37, at 53, 74.43. See Elizabeth M. Bloom & Louis N. Schulze, Jr., Integrating DoctrinalMaterial and Faculty into Academic Support Courses, LEARNING CURVE (Am.Ass’n of Law Sch. Section on Academic Support), Fall 2009, at 13, available at283

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5question this issue raises—should we integrate doctrinalmaterial in academic support?—is easily answered. Empiricalevidence suggests that academic support is more effective thecloser an ASP works with the actual cases and rules covered indoctrinal classes. 44 The problem arises, however, becauseintegrating substantive law sometimes raises objections fromdoctrinal faculty. 45 It has been stated that academic supportprofessionals often receive a “subtle” message from doctrinalfaculty: “Do what you need to help students, but don’t interferewith my teaching.” 46 Sometimes this message is not so subtle. 47Dealing with this political situation often depends upon one’sstatus at the institution. If the academic support professional istenured or has the strong support of the faculty oradministration, integration of doctrinal materials into the ASPmay be possible notwithstanding objections from some individualfaculty members. If the academic support professional is not sosituated, then he or she should consider adopting methods thatdispel objections but nonetheless accomplish the goal ofestablishing an effective program. Such methods might includeco-teaching ASP classes with doctrinal faculty who advocate forhttp://www.aals.org/documents/sections/academicsupport/LearningCurve200912Fall.pdf.44. See Knaplund & Sander, supra note 27, at 177 (discussing thestatistical improvements in the ASP program at UCLA when “Professor A” tiedthe substance of her ASP class more closely “to the specific problems herstudents were grappling with in their other courses”). One method to achievethis goal includes using in-class practice exams based upon cases studentsrecently covered in their other courses. Id. Another method would be to have aworkshop or guided study-group in which the members of the academic supportclass must explain to the academic support professor a certain area of law theyrecently learned.45. See Suni, supra note 12, at 504–05 & n.54. On the other hand, manylaw schools and many professors are showing an increased acceptance of theimportance of academic support and in breaking the hierarchical structuresthat once impeded pedagogical improvement. Anecdotally, many academicsupport professionals report that doctrinal professors are willing to assist inASP problem-drafting, co-teaching of classes, and fully integrating theresources of the ASP. The Academic Excellence Program directed by the authorhas benefited from the full commitment of the faculty and administration of thelaw school.46. Id. at 505 n.54.47. Id. at 505 n.53.284

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportacademic support, teaching an elective class that incorporatesacademic support methods, or coordinating materials withdoctrinal faculty who approve of academic support. 48Nonetheless, the notion of providing contextualized orintegrated academic support supplies the notion of “competence.”Relatedness is one of the facets of SDT. Part V explains howacademic support helps fulfill this as well.3. Upper-Class Academic Support MethodsMany schools focus their academic support methods on thefirst year. The justification for this focus likely is that the ASPwill help students transition into law school and successfullypass the first year. However, many schools have started to offeracademic support in the subsequent years of law school. Forinstance, schools such as Northeastern University Law School,the University of Connecticut School of Law, and New EnglandLaw | Boston offer upper-division courses specifically aimed atstudents who underperformed in their first year of law school. 49These classes are often directly linked with doctrinal courses,such as Professional Responsibility, Remedies, and Evidence. 50The goals of such a class are to continue to provide support tostudents throughout law school, thus improving their practiceskills, raising their GPAs, 51 and increasing the students’48. See Bloom & Schulze, supra note 43, at 14; Todd, supra note 1,at 200–01.49. See Academic Success Program, NE. U. SCH. L., http://www.northeastern.edu/law/academics/curriculum/asp/index.html (last visited Oct. 21,2010); Guide to Student Services, U. CONN. SCH. L., http://www.law.uconn.edu/student-handbook/guide-student-services (last visited Oct. 21, 2010); AcademicExcellence, NEW ENG. L. | BOS., http://www.nesl.edu/exceptional/academic_excellence.cfm (last visited Oct. 21, 2010).50. See Melinda Drew, Academic Success Program: Guide to Academic andDisability Services, NE. UNIV. SCH. L.,4 (2009–2010), http://www.northeastern.edu/law/pdfs/academics/aspguide.pdf; Course Descriptions, NEW ENG. L.|BOS.,http://www.nesl.edu/students/registrar_courses.cfm (last visited Oct. 21, 2010);Advanced Legal Methods, U. CONN. SCH. L., http://www.law.uconn.edu/academics/courses/1098-7550-10 (last visited Oct. 21, 2010).51. At New England Law | Boston, the first year of the “Legal Analysis”course met these goals. Students who chose to enroll in the courseoutperformed similarly situated students in several ways: in the grades theyreceived in their Evidence course (which all second-year students take285

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5likelihood of passing the bar exam. 52A related issue is on the rise. Law school ASPs have startedto offer bar preparation courses for seniors. The American BarAssociation recently abolished its rule banning such courses fromreceiving credit, 53 and more changes are likely on the way. Thus,contemporaneously); in overall GPA; and in terms of whether they improvedtheir GPA. See Memorandum from Louis Schulze, Assistant Professor of Law &Dir., Academic Excellence Program, New England Law | Bos., to J. Greenberg,Assoc. Dean, New England Law | Bos. (Jan. 30, 2010) (on file with author)(documenting Legal Analysis course statistics). As a result, the next year theclass was offered saw a 60% increase in enrollment of eligible students. Id.52. One difficult decision arises, however. ASPs often must struggle withthe question whether to grade such courses, to provide academic credit forthem, or both. See Lustbader, supra note 14, at 841 n.11 (describing the variousASPs schools utilize). Many argue that the role of an academic supportprofessional should be to provide supportive assistance to students as they worktowards mastery of the law and success in law school—in other words, being inthe students’ corner. Id. at 841. Providing academic credit and grading thesecourses, by contrast, posits the academic support professional as less of anadvocate and more of a traditional law school professor—objectively andneutrally grading students without regard to any notion of assistive goals. Seeid. at 859 (advocating a student-centered pedagogy).On the other hand, providing credit for the course allows students toreceive academic support within their course load rather than on top of it.Some of the most effective academic support is that which provides studentswith in-depth legal analysis opportunities and extensive feedback. Requiringstudents to write essays, complete numerous multiple choice questions, or otherprojects will likely result in half-hearted efforts unless that work leads tocredits and grading. The students take the assignments and feedback muchmore seriously if they will affect their GPAs. Furthermore, graded and forcreditacademic support classes also lend implicit gravitas to the ASP. Gradingand crediting an ASP class leave students with the impression that the lawschool values the class and the efforts of the ASP professional. See Todd, supranote 1, at 190 (citing Ruta K. Stropus, Mend It, Bend It, and Extend It: The Fateof Traditional Law School Methodology in the 21st Century, 27 LOY.U.CHI.L.J.449, 484–88 (1996)); see also Leah M. Christensen, Enhancing Law SchoolSuccess: A Study of Goal Orientations, Academic Achievement and the DecliningSelf-Efficacy of our Law Students, 33 LAW & PSYCHOL. REV. 57, 81 (2009)(“Minimally, the curve increases competition and devalues learning overperformance.”); Louis N. Schulze, Jr., Balancing Law Student Privacy Interestsand Progressive Pedagogy: Dispelling the Myth that FERPA Prohibits Cutting-Edge Academic Support Methodologies, 19 WIDENER L.J. 215, 243–45 (2009)(“[G]raded, for-credit, upper-class academic support courses violate [the FamilyEducation Rights Privacy Act] . . . .”).53. The American Bar Association, which governs law school accreditation,resolved to delete Interpretation 302–7 of the Standards for Approval of LawSchools concerning bar examination preparation courses. See SECTION OF LEGAL286

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportmany law schools are implementing for-credit and graded barpreparation courses for students. 54 California Western School ofLaw (CWSL), for instance, has implemented such a program. 55“CWSL’s pre-bar review course introduces students to the barexamination. It continues to refine students’ essay and multiplechoiceexam-taking skills, as well as introducing students to theperformance exam.” 56EDUC. &ADMISSIONS TO THE BAR, AM. BAR ASS’N, REPORT TO THE HOUSE OFDELEGATES, at 1, 1 (2008), available at http://www.abanet.org/legaled/standards/noticeandcomment/%2044118_%201.DOC. That interpretation hadprovided that: “If a law school grants academic credit for a bar examinationpreparation course, such credit may not be counted toward the minimumrequirements for graduation established in Standard 304. A law school may notrequire successful completion of a bar examination preparation course as acondition of graduation.” Id. at 2. With its deletion, schools are now free toprovide credit for such courses and require them for graduation. See LeighJones, More Schools Offer Bar Prep Courses, NAT’L L.J. (Sept. 10, 2008),http://www.law.com/jsp/article.jsp?id=1202424397151.54. See E-mail from James A. Janda, Dir., Peer Mentoring & BarPreparation Programs, Suffolk Univ. Law Sch., to author (Aug. 4, 2009, 12:17CST) (on file with author) [hereinafter Janda E-mail]; see also Schulze, supranote 52, at 245 (“[M]any schools have created for-credit and/or graded barcourses . . . .”).55. California Western Bar Review Program, CAL. W.SCH. L.|SAN DIEGO,http://www.cwsl.edu/main/default.asp?nav=academic_support.asp&body=academic_support/BarReviewHomepage.asp (last visited Oct. 21, 2010).56. Id. Through various ASP contexts, many schools require or stronglyrecommend ASP courses to students who have struggled academically in lawschool. This raises the issue of whether requiring struggling students to takean ASP class will lead to stigma, thus leading to the self-fulfilling prophecyeffect discussed previously. See supra notes 34–36 and accompanying text.Although bar preparation courses are unlikely to face this problem becausestudents across the GPA range are likely to enroll in the class, ASPprofessionals teaching for-credit or graded courses open only to those onacademic probation must deal with the “stigma” issue. See Schmidt & Iijima,supra note 33, at 675–76 (suggesting law professors focus on students’analytical skills to decrease the remedial nature of the program and reduce theassociated stigma). If such a course is open only to students in the bottom ofthe class, simply entering the classroom discloses to all other participants theacademic status of every other participant. In other words, everyone in theroom knows that everyone else is in the bottom of the class.As a result, some ASP professionals shy away from required ASPclasses or those open only to students on academic probation. Many schoolsinstead focus on private, individual academic counseling for such students, thusensuring confidentiality and a lack of institutionally created “outing.” On theother hand, the classroom environment has distinct advantages which287

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 54. Post-Law School Academic Support MethodsMost post-law school academic support measures consist ofcontinued assistance for students as they prepare for the barexam. For many schools, this occurs between graduation and agraduate’s first bar exam. 57 A growing area of concern, however,is law schools’ efforts to assist graduates who failed the barexam. 58 Many schools attempt to reach out to such graduates,but a desire to not be identified as having failed the bar preventsmany graduates from using these services.III. WHAT IS “HUMANIZING LEGAL EDUCATION”?To understand how ASPs benefit law students in ways otherthan just academic success, an investigation into these“alternative justifications” is necessary. Here, the first suchalternative justification—humanizing legal education—will bediscussed. “Humanizing legal education” refers to a growingmovement within the legal academy to study and improve theindividual academic counseling lacks. For instance, group work is inherentlyimpossible if an ASP avoids classroom work. Second, the classroomenvironment allows the ASP professional to teach concepts to large numbers ofpeople rather than having to repeat the concept dozens of times in individualacademic counseling. Furthermore, in an interactive classroom, students canlearn from each others’ questions and thoughts; while in individual academiccounseling, students learn only from the ASP professional, thus reinforcing thecommon misperception amongst law students that the professors are theholders of knowledge, while students are not capable of self-directed learning.See id. at 676 (noting that “a focus on legal doctrine may create dependencyproblems” making students feel they need tutoring or should depend onsomeone to help them learn); Christensen, supranote 52, at 82–83 (encouragingcooperative learning). Like first-year academic support methods, upper-classacademic support requires an examination of these complex issues.57. See, e.g., Bar Exam Preparation, ST. LOUIS U. SCH. L.,http://law.slu.edu/academics/bar_exam/index.html (last visited Oct. 21, 2010);Bar Preparation, U. RICH. SCH. L., http://law.richmond.edu/academics/upperlevel/bar.html(last visited Oct. 21, 2010) (offering a bar preparation courseduring the semester as well as weekly bar preparation counseling and tutoringduring the bar study period).58. See Memorandum from William R. Rakes, Chair, Am. Bar. Ass’nSection of Legal Educ. & Admissions to the Bar, to the Deans of ABA-ApprovedLaw Sch. 4 (June 18, 2007), available at http://www.abanet.org/legaled/standards/Proposed%20Standards%20Commentary/Prop%20New%20Int%20301-6_June192007.pdf.288

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportnegative impact that law school has on many students.A. A Brief History of the Humanizing MovementThe humanizing legal education movement likely had itsgenesis in 1986 when Andrew Benjamin first documented therole of legal education in psychologically harming its students. 59Legal scholars then began examining not only whether lawschool tended to cause distress in students, but also the causes ofthat distress. These efforts included notable articles byProfessors Barbara Glesner Fines and Lawrence Krieger. 60Momentum began to build, which culminated in severalgalvanizing events. First, the AALS created a section called“Balance in Legal Education.” 61 Second, the section initiated aListserv designed to expand communication about humanenessbetween like-minded educators. 62 Finally, in 2007, WashburnUniversity School of Law held a symposium focusing onhumanizing legal education. 63 Instead of a few isolated scholarsfocusing on this subject, now large groups of legal educatorscutting across all genres of the law work together to move toward59. See Schwartz, Humanizing Legal Education, supra note 37, at 235(citing G. Andrew H. Benjamin et al., The Role of Legal Education in ProducingPsychological Distress Among Law Students and Lawyers, 1986 AM. B.FOUND.RES.J. 225). The Benjamin study empirically demonstrated the psychologicallyharmful effects of law school. The psychopathological symptom responses ofstudents prior to law school were similar to the normal population. During lawschool and after graduation, however, symptom levels elevated significantly.60. See B.A. Glesner, Fear and Loathing in the Law Schools, 23 CONN. L.REV. 627, 630 (1991) (noting that the “extreme pressure of legal educationinterferes with learning, teaches inappropriate interpersonal skills, andencourages counterproductive behaviors and attitudes among students”);Lawrence S. Krieger, Institutional Denial About the Dark Side of Law School,and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J.LEGAL EDUC. 112, 112–13 (2002) (noting faculty denial of law studentdepression and suggesting “individual and collective faculty approaches” toremedy the situation).61. Bruce J. Winick, Greetings from the Chair, EQUIPOISE (Ass’n of Am.Law Sch. Section on Balance in Legal Educ.), Dec. 2009, at 1, available athttp://www.aals.org/documents/sections/balance/BalanceInLegalEdDec_09.pdf.62. Humanizing Ideas, FLA. ST. U., http://humanizingideas.law.fsu.edu/default.asp (last visited Dec. 13, 2010).63. See Schwartz, Humanizing Legal Education, supra note 37, at 236.289

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5the goal of providing an environment more conducive to thehealthy study of the law.B. What Is “Humanizing Legal Education”?Finding a universal definition of what constituteshumanizing legal education has proven elusive. Perhaps themost comprehensive definition of the term, really more of amission statement, comes from the Web site which serves as theepicenter of the movement. It states that:Humanizing legal education is an initiative shared by legaleducators seeking to maximize the overall health, well beingand career satisfaction of law students and lawyers. We findcause for concern in our observations of law students and inthe research on, and reports of, problems in the legalprofession—including dissatisfaction, depression, excessivework, substance abuse and eroding professionalism. We areinterested in the ways legal education is conducted, the impactthose choices may have on the attitudes, values, health andwell being of law students, and the possible relationshipbetween each of those matters and the problems experiencedby our graduates in the profession. Through scholarship, Webbaseddiscussion, empirical research and conferences, we hopeto inform the development of innovative teaching methodswhen appropriate. 64Professor Glesner Fines incorporates three principles into herdefinition of humanizing legal education: (1) “do no harm”; 65 (2)“teach students, not . . . subjects”; 66 and (3) “peace and justice.” 67The first principle is that law schools should “do no harm”:“[L]aw schools need to identify negative stressors in the lawschool environment, reduce or eliminate those as much aspossible, and help the students to manage those that cannot beeliminated.” 68 Implicit in this principle is the notion that some64. Humanizing Law School, FLA. ST. U.C.L., http://www.law.fsu.edu/academic_programs/humanizing_lawschool.html (last visited Oct. 21, 2010).65. Fines, supra note 37, at 313–17.66. Id. at 318–21.67. Id. at 322–23.68. Id. at 313–14.290

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportstressors cannot be eliminated. Thus, one might say that lawschools should eliminate stressors that are pedagogicallyunnecessary while empowering students to cope with thestressors that are necessary for a rigorous education. Forinstance, exams cause stress, but they certainly cannot beeliminated. Furthermore, frequent formative assessment 69 mightcause stress, but it is actually a method pedagogically preferableto one exam at the end of a course representing the totality ofone’s grade. In that instance, frequent formative assessment,while increasing the number of stressors students face, willultimately reduce the aggregate quantity of stress created by onesummative assessment. It also provides a more rigorouseducation because students are tested more frequently. In thisway, humanizing can both prevent psychological harm tostudents and provide rigorous training. 70Professor Glesner Fines’s second principle of humanizing isthe notion of teaching students, not subjects. 71 Put another way,law schools should move—like most of the rest of the academy—toward a student-centered educational model. Initiatives in thisarea include training students how to teach themselves, 72teaching students to discern their preferred learning style, 73understanding generational differences in learning, 74 and69. “Formative assessment is the evaluation of student performanceduring a learning process of prescribed term, while final [or summative]assessment is evaluation at the end of the term.” Jay M. Feinman, Law SchoolGrading, 65 UMKC L. REV. 647, 647 (1997); see also ROY STUCKEY ET AL., BESTPRACTICES FOR LEGAL EDUCATION 255 (2007) (encouraging the use of formativeassessments throughout the semester).70. Another more subtle example of the principle of “do no harm” couldinclude expanding this to “permit no vicarious harm.” For instance, ProfessorRebecca Flanagan details how law school bullying undermines learning andcreates an emotional impediment to successful legal education. See RebeccaFlanagan, Lucifer Goes to Law School: Towards Explaining and MinimizingLaw Student Peer-to-Peer Harassment and Intimidation, 47 WASHBURN L.J.453, 453–57 (2008) (discussing the impact of student bullying in law schools andexplaining faculty or administration-based solutions).71. Fines, supra note 37, at 318–22.72. See generally Schwartz, Teaching Law Students, supra note 40(explaining the process of Self-Regulated Learning).73. MARTHA M. PETERS & DON C. PETERS, JURIS TYPES: LEARNING LAWTHROUGH SELF-UNDERSTANDING 9–10 (2007).74. Susan K. McClellan, Externships for Millenial Generation Law291

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5training students to reflect consciously about what it means to bean ethical and moral lawyer. 75 Law school education shouldfocus not only on the substance of the law, but also upon givingstudents the tools to develop as professionals. 76Professor Glesner Fines’s third principle of the humanizingmovement centers upon problem-solving and justice. 77 ToStudents: Bridging the Generation Gap, 15 CLINICAL L. REV. 255, 259–61 (2008)(describing the varied learning traits of Millennial, Generation X, Baby Boomer,and GI generation members and applying those traits in the context ofexternship).75. Steven K. Berenson, Educating Millennial Law Students for PublicObligation, 1 CHARLOTTE L. REV. 51, 66–70 (2008).76. Illustrating this principle leads one to consider a frequently discussedquirk about law school learning. For decades, first-year students complainedthat legal education forced them to divorce themselves from emotion, morality,and their intrinsic sense of what is just. See Todd David Peterson & ElizabethWaters Peterson, Stemming the Tide of Law Student Depression: What LawSchools Need to Learn from the Science of Positive Psychology, 9 YALE J. HEALTHPOL’Y L. & ETHICS 357, 379 (2009). Instead, they were told that proper legalargumentation eschews “feelings” or “emotions” and instead requires relianceupon pure, objective, rational justifications. See id. Indeed, legal thinking doesrequire one primarily to assert arguments directly related to purely objectivejustifications—focusing upon the plain meaning of a statute, or upon caseprecedent. But, that mandate does not require resort solely to objectiverationalism, to the exclusion of arguments based upon “justice.” For decades,law schools have churned out lawyers too devoid of any connection to commonsense or to a community’s sense of justice. This has led to absurd examples oflawyers presenting arguments with strict adherence to objective rules, butignoring the fact that their non-lawyer clients or non-lawyer jurors still retaincommon sense.For instance, a few years ago, the lawyers representing theArchdiocese of Boston in litigation alleging sexual abuse by priests included intheir Answer to the Complaint an affirmative defense that garnered widespreadcondemnation. The Answer stated that the plaintiffs’ damages, if any, werecaused by the negligence of the plaintiff —an alleged victim of child sexualabuse—or his parents. Although there is no doubt such an affirmative defensewould serve most defendants in a tort action well, in this case it was aquestionable tactic, and Cardinal Bernard Law receded from it both indeposition and by amending the Answer to strike the affirmative defense. SeeDeposition of Cardinal Bernard Law, BOSTON GLOBE (Oct. 16, 2002),http://www.boston.com/globe/spotlight/abuse/shanley/law_deposition/101602_entire.htm.A humanized legal education both attempts to indoctrinate theclassical view of the (allegedly) rational, objective nature of law, and helps todevelop a student’s sense of practicing law with a retained sense of decency andmorality (albeit subjective).77. Professor Glesner Fines actually uses the phrase “Peace and Justice.”292

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportdemonstrate this principle, consider a pedagogy lacking a focuson these values. The traditional law school pedagogy dealsalmost strictly with the “zero-sum game” model of litigation,leaving students with the sense that every legal matter results ina clear winner and a clear loser. This situation emanates fromthe casebook model of teaching, where students learn everythingthey know about law by reading the details of litigated cases inwhich, ultimately, one party was the conqueror while the otherwas the vanquished. Even in conflicts with subtle shades of gray,where several parties may be somewhat blameworthy, theclassical view would declare one party the winner and one partythe loser often based upon a hyper-technical classification of theparty’s actions into one legal doctrine or another. Often neophytelaw students (and even experienced attorneys) are aghast at theseemingly random results of cases that seem contrary to theirinitial sense of the morally correct outcomes. We teach them,though, that law is the all-knowing and objective source ofneutral, principled decision making, which allows and requiresstraight-thinking lawyers to abandon that initial subjective,morality-based sense of outcome that might lead their analysisastray. 78Instead, students need to learn that the practice of law, evenat the highest level, is filled with problem-solvers and “fixers.”Classes like Alternative Dispute Resolution, Negotiation, andclinical courses show students that a lawyer’s role often is tonegotiate with opposing parties to create a solution to a conflictthat bears less risk and expense than submitting the dispute tothe sometimes random outcomes generated by litigation. In sodoing, this educational model mitigates the effect of the casebookFines, supra note 37, at 322. Perhaps some would prefer an alternate wordingof this principle. Just as the AALS Section on Humanizing Law Schoolschanged its name to “Balance in Legal Education” due to unwanted perceptions,defining the humanizing movement with the terms “peace and justice” may beoff-putting to some who would otherwise be predisposed to support humanizinglaw schools. As a result, one might argue that humanizing legal educationschools should include a focus upon “problem-solving and justice.”78. See M. H. Sam Jacobson, The Curse of Tradition in the Law SchoolClassroom: What Casebook Professors Can Learn from Those Professors WhoTeach Legal Writing, 61 MERCER L. REV. 899, 908–14 (2010) (listing the manydisadvantages of a purely casebook method of legal education).293

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5method’s seemingly monolithic message of zero-sum gaming andinstead posits the soon-to-be lawyer as someone able to drawupon her skills to fix problems rather than exacerbate themthrough winner-take-all litigation. This would humanize legaleducation. 79C. Why Humanize Legal Education?Scholars have noted numerous reasons why legal educationwould benefit from humanizing efforts. These reasons include:(1) improving student learning, (2) creating an environment lesspsychologically harmful to students, and (3) providing anenvironment more open to female law students and students ofcolor.1. Improving Student LearningThe first justification for humanizing law schools is the effectof legal education upon students’ learning. Humanizingtechniques can include slight modifications of the SocraticMethod that undermine its negative effects while stillcapitalizing on its benefits. 80 For instance, Dean Jennifer Rosatoof Northern Illinois University College of Law posits that simplyproviding positive reinforcement in a classroom discussion usingthe Socratic Method can create rigorous discussion in whichstudents must find their own answers, while simultaneouslyrecognizing good ideas. 81 Furthermore, cooperative work can beincluded within a Socratic dialogue to alleviate the intimidationfactor of classroom interrogation, while also modeling theprofessional behavior of group problem solving that studentsmust master to be successful lawyers. 82 Finally, Dean Rosato79. See Fines, supra note 37, at 319 n.28 (“Several scholars advocate for amore client-centered approach to lawyering, wherein the lawyer exercises an‘ethic of care’ in her role as counselor.”).80. See Jennifer L. Rosato, The Socratic Method and Women Law Students:Humanize, Don’t Feminize, 7 S. CAL. REV. L.&WOMEN’S STUD. 37, 59–62 (1997)(advocating on behalf of retaining the Socratic Method but modifying it toinclude more humane features).81. See id. at 60.82. See id. at 60–61. For example, imagine that a professor poses a294

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportalso asserts that humanizing the Socratic Method can helpdemystify the learning process. 83 The Socratic Method, sheclaims, has the tendency to “mystify the learning process” bycreating a hide-the-ball mentality, in which the professor knowsthe answer to the line of questioning but withholds it. 84 A bettertechnique is to “debrief” the students after a Socratic discussionby explaining why the professor asked certain questions, thusbetter illuminating the logical steps the students may havemissed. 85 In this way, the professor achieves the SocraticMethod’s goal of student self-enlightenment, while at the sametime providing a clear, less mysterious process. 86 This is just oneof the countless ways that humanizing legal education canhypothetical. Rather than calling on a student to solve the hypotheticalimmediately on the heels of its description, a professor can give the class twominutes of “conference time” to discuss the analysis with colleagues. Thus,instead of wasting five minutes of class time flailing around trying to coaxmediocre answers out of shell-shocked students, the two minute conference(which is very similar to the professional skill of conferencing with otherassociates or partners) gives students a few seconds to compose their thoughtsand provide strong answers. Far from wasting time, this tactic allows a class tomove into deeper waters at an even faster rate. See Christensen, supra note 52,at 81–82 (providing examples of reform that would increase “collaborative orcooperative learning experiences”); Patricia Mell, Taking Socrates’ Pulse: Doesthe Socratic Method Have Continuing Vitality in 2002?, 81 MICH. BAR J. 46, 46(2002), available at http://www.michbar.org/journal/pdf/pdf4article442.pdf(“[L]essons [regarding how to problem solve as a lawyer] are ill suited forSocratic [M]ethod classrooms and are most effectively learned in small groupsettings.”).83. Rosato, supra note 80, at 61–62.84. Id.; see also Deborah L. Rhode, Missing Questions: FeministPerspectives on Legal Education, 45 STAN. L.REV. 1547, 1555 (1993)(describingthe law school version of the Socratic Method as a game of “guess what I’mthinking”).85. Rosato, supra note 80, at 62. Some might say that this “debriefing”could take up a lot of class time, and that time ought to be devoted to substance.See id. This concern is easily solved by Academic Support. See Bloom &Schulze, supra note 43, at 13. Many ASPs include programs in which successfulupper-class law students serve as Teaching Assistants or Study Group Guidesto first-year students. Garfield & Levi, supra note 1, at 7. These TAs or Guidescould easily conduct the “debriefing” in the study group setting, thus savingvaluable class time. This technique helps prove that ASPs can be critical inhumanizing the law school environment. See Garfield & Levi, supra note 1, at 8(discussing TA programs at Denver Law School, Santa Clara School of Law,UCLA Law School, Miami Law School, and Hastings College of Law).86. Rosato, supra note 80, at 62.295

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5enhance learning.2. Creating an Environment Less Psychologically Harmfulto StudentsAnother justification for humanizing law schools is to curtailthe negative psychological ramifications that the traditional lawschool environment has upon law students. Many in the field ofteaching law posit that change is unnecessary because it wouldsoften an environment where students must be prepared for thehard life of the practice of law. 87 In addition to ignoring the factthat humanizing the law school can actually make the learningprocess more rigorous rather than less, 88 the argument alsoignores two things: (1) it is the traditional law schoolenvironment that has made the practice of law increasingly lesscollegial, 89 and (2) documented evidence shows that pedagogicallyunnecessary psychological trauma is the result of the traditionallaw school methodology. 9087. Robert M. Lloyd, Hard Law Firms and Soft Law Schools, 83 N.C. L.REV. 667, 677 (2005) (“Unfortunately, today’s [s]oft law schools do not preparetheir graduates for . . . reality. In most law schools, performance is optional.While the practice of law has been getting [h]arder, law schools have beengetting [s]ofter.”). Professor Lloyd takes issue with the wholesale abandonmentor watering-down of the Socratic method in law school. Id. at 680–83. He notesthat while this method was rejected because it was too intimidating andadversarial, the practice of law has actually become more intimidating andadversarial. Id. at 681. In sum, one can presume that Professor Lloyd mightreject the “humanizing” movement as one that “softens” the law schoolexperience.88. After all, the Socratic Method keeps only one student on the hot seat,while the others may relax. Imagine a pedagogy that, while less intimidating,still forces the entire class to engage in rigorous legal analysis.89. See Paul T. Hayden, Applying Client-Lawyer Models in LegalEducation, 21 LEGAL STUD. F. 301, 320 (1997); Roger E. Schechter, ChangingLaw Schools to Make Less Nasty Lawyers, 10 GEO. J.LEGAL ETHICS 367, 381(1997). But see Michael Vitiello, Professor Kingsfield: The Most MisunderstoodCharacter in Literature, 33 HOFSTRA L. REV. 955, 993 (2005) (pointing out thatlawyer incivility has increased while use of the “traditional” Socratic methodhas declined).90. Kennon M. Sheldon & Lawrence S. Krieger, Does Legal EducationHave Undermining Effects on Law Students? Evaluating Changes inMotivation, Values, and Well-Being, 22 BEHAV.SCI.&L. 261, 261 (2004).296

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic SupportFor instance, Professors Sheldon and Krieger establishedthat, although law students enter law school with levels ofdepression, anxiety, and drug and alcohol abuse similar to thosein other fields of graduate study, the first year of law schoolchanges this. 91 First-year law students’ levels of depression,anxiety, and substance abuse increase at a rate well beyond thatof those in other graduate studies. 92 Sheldon and Krieger’sanalyses “showed that participants experienced large reductionsin positive affect, life satisfaction, and overall [subjective wellbeing],and large increases in negative affect, depression, andphysical symptoms” in the first year of law school. 93 Unlike otherresearchers, Sheldon and Krieger did not attribute the causationof these psychological manifestations to the Socratic Methodalone. Instead, they traced these problems to a far wider array ofnegative factors in the law school education: (1) the lack offormative assessment, feedback, or both; (2) competition foracademic superiority due to rigidly imposed grading curves; (3)purely hierarchical markers of worth; (4) teaching methods thatare isolating; and (5) average GPAs far lower thanundergraduate norms. 94 The study found that even while thestudents’ mental health worsened, students moved away fromintrinsic motivation—making oneself happy—toward extrinsicmotivation—proving oneself to others. 95This shift and its correlated effects upon mental health seemto dovetail with the negative aspects of legal education.Humanizing the law school environment would, obviously,directly affect intrinsic and extrinsic motivation and help tooffset the negative elements of a law school environment.91. Id. at 262.92. Id.93. Id. at 272.94. Id. at 262, 281. One might argue that the fifth factor is a function ofgrade inflation at the undergraduate levels. As undergraduate institutionsfight for better scores in the all-important U.S. News & World Report rankingsby making student-consumers happy with high grades, rigorousness and actuallearning decline. Law schools will soon catch on to this trend, as already we seeevidence of grade inflation at the law school level. Catherine Rampell, In LawSchools, Grades Go Up, Just like That, N.Y. TIMES (June 21, 2010),http://www.nytimes.com/2010/06/22/business/22law.html.95. Sheldon & Krieger, supra note 90, at 281.297

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 53. Providing an Environment More Open to Female LawStudents and Students of ColorA further justification for humanizing law schools is tocounterbalance the traditional law school environment’s negativeimpact upon women and students of color. Scholars havechallenged legal education, claiming that it disproportionatelynegatively impacts women, students of color, and lesbian, gay,bisexual, transgendered, or questioning students. 96For instance, a comprehensive study using both qualitativeand quantitative methods 97 found that despite similar enteringcredentials, 98 female students at Yale Law School spoke lessoften in class, 99 were less likely to form professionally beneficialrelationships with professors, 100 and were treated differently ingeneral. 101 Thus, if a law school employs the Socratic Methodexclusively, or even pervasively, then excluding groups ofstudents from speaking in class undermines that group’slikelihood of attaining an education as rigorous as those groupswho are encouraged to speak in class.Bashi and Iskander suggest humanizing legal education,without calling it such, to remedy this situation by “invest[ing] inpedagogy.” 102 They point out that the traditional law schoolenvironment with its zero-sum game model and a singular focuson case law rewards only the students who best digest thelitigation model of conflict resolution. 103 Despite the fact that96. See Janice L. Austin et al., Results from a Survey: Gay, Lesbian, andBisexual Students’ Attitudes About Law School, 48 J. LEGAL EDUC. 157, 164–67(1998); Sari Bashi & Maryana Iskander, Why Legal Education Is FailingWomen, 18 YALE J.L. & FEMINISM 389, 391–92 (2006); Morrison Torrey, YetAnother Gender Study? A Critique of the Harvard Study and a Proposal forChange, 13 WM.&MARY J. WOMEN &L. 795, 796 (2007); Morrison Torrey et al.,What Every First-Year Female Law Student Should Know, 7 COLUM. J.GENDER&L. 267, 275 (1998).97. Bashi & Iskander, supra note 96, at 400.98. Id. at 397.99. Id. at 405.100. Id. at 415, 422.101. Id. at 391.102. Id. at 434.103. See id. at 435–36.298

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportmodern practice requires mastery of other modes of disputeresolution, such as mediation, settlement, and negotiation, noneof these skills are rewarded in the traditional law school. 104Thus, “law schools neglect cognitive skills traditionallyassociated with women, including contextual reasoning,relational skills, and narrative intelligence.” 105Furthermore, Professor Carole J. Buckner notes that:Most African American students are highly parent and teachermotivated, and [they] prefer collegial authority figures presentwhile learning. The academic achievement of African Americanstudents improves when teachers use cooperative rather thancompetitive learning strategies because such approachesparallel the context for learning found in their cultures. Withcooperative learning groups and more symmetrical teacherstudentinteraction, classroom discussions increase in degreeand intensity. 106She further states that:The Hispanic cultural emphasis on cooperation in theaccomplishment of goals can leave Hispanic students feelinguncomfortable in a traditionally competitive style classroom.Hispanic students benefit from instructional methods includingcooperative or group learning, and through techniques ofhumanizing the curriculum through use of humor, fantasy, ordrama, personalized rewards, modeling, informal classdiscussion, and global emphasis on concepts rather thanattention to details. Both Hispanic and African Americanlearners prefer a highly emotive, dramatic style of instructionwhich may result from the prominence of storytelling and theuse of affective expressions and communal values of theirtraditional cultures. Hispanic learners benefit from deemphasison the question and answer format and the104. Id. at 435.105. Id. at 435–36.106. Carole J. Buckner, Realizing Grutter v. Bollinger’s “CompellingEducational Benefits of Diversity”—Transforming Aspirational Rhetoric intoExperience, 72 UMKC L. REV. 877, 911 (2004) (footnotes omitted) (internalquotation marks omitted).299

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5avoidance of debating as an instructional technique. 107Thus, a pedagogy that focuses solely on the Socratic Methodignores the field of learning styles and inherently ignoresHispanic and African-American learners. Humanizing the lawschool environment, however, recognizes all members of the lawschool community.IV. WHAT ARE SELF-DETERMINATION THEORY ANDAUTONOMY SUPPORT?Self-determination theory (SDT) is “a meta-theory forframing motivational studies, a formal theory that definesintrinsic and varied extrinsic sources of motivation, and adescription of the respective roles of intrinsic and types ofextrinsic motivation in cognitive and social development and inindividual differences.” 108 SDT generally holds that whenstudents experience competence, autonomy, and relatedness—when they understand and appreciate the motivation for aneducational task that might seem unhelpful and uninteresting—they tend to learn better from that task. 109 The related concept ofautonomy support, in turn, holds that students who perceive agreater degree of support from their teachers and schools—inthat they feel that they have active control over choices in theireducational pursuits—fare better in learning.A. What Is Self-Determination Theory?According to SDT, all human beings need to experienceautonomy, competence, and relatedness to thrive and maximizetheir potential. 110 Put another way, people need to feel that they107. Id. at 906 (emphasis added) (footnotes omitted) (internal quotationmarks omitted).108. Self-Determination Theory, U. ROCHESTER, http://www.psych.rochester.edu/SDT/theory.php (last visited Oct 22, 2010).109. See Richard M. Ryan & Edward L. Deci, Self-Determination Theoryand the Facilitation of Intrinsic Motivation, Social Development, and Well-Being, 55 AM.PSYCHOLOGIST 68, 76 (2000).110. Marylène Gagné & Edward L. Deci, Self-Determination Theory andWork Motivation, 26 J. ORGANIZATIONAL BEHAV. 331, 336–37 (2005).300

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportare working or learning in a manner of their own choice(autonomy); they are good at what they do or at least can becomegood at it (competence); and their work or learning has purposeand allows them to relate meaningfully to others (relatedness). 111All three of these factors of SDT are relevant to legal education,but autonomy support seems to provide the most fertile groundfor result-oriented law school pedagogical reform. This will bediscussed further below.Regarding SDT, in a recent study of the impact of externallyprovided motivation for learners, Dr. Hyungshim Jangdemonstrated the importance of this concept. 112 One hundredthirty-six undergraduate students were given a relativelyuninteresting lesson for twenty minutes. 113 Some received arationale for the lesson, others did not. 114 Those whoreceived a rationale prior to the lesson showed “greateridentified regulation, interest-enhancing strategies, behavioralengagement, and conceptual learning.” 115 Therefore, connectingstudents to an understanding of why they must learn using themethod chosen actually results in better learning. 116111. Kennon M. Sheldon & Lawrence S. Krieger, Understanding theNegative Effects of Legal Education on Law Students: A Longitudinal Test ofSelf-Determination Theory, 33 PERSONALITY &SOC. PSYCHOL. BULL. 883, 885(2007), available at http://www.immagic.com/eLibrary/ARCHIVES/GENERAL/SAGEP_UK/S070504S.pdf.112. Hyungshim Jang, Supporting Students’ Motivation, Engagement, andLearning During an Uninteresting Activity, 100 J. EDUC. PSYCHOL. 798, 798(2008), available at http://psycnet.apa.org/index.cfm?fa=main.doiLanding&uid=2008-16034-006.113. Id.114. Id.115. Id.116. See Emily Zimmerman, An Interdisciplinary Framework forUnderstanding and Cultivating Law Student Enthusiasm, 58 DEPAUL L. REV.851, 886–88 (2009) (noting a general shift in students’ motivations during thedisorienting first year of law school). Self-determination theorists’ solution tothis age-old dilemma would be to demystify the process. Sheldon & Krieger,supra note 111, at 884. A student swimming in a sea of disconnectedness wouldlearn the material better if someone simply explained that, by reading the case,you are forced to learn the legal analytical method of arguing two sides of alegal problem. Id. While indirectly learning the substance of the law fromreading the case, you also learn the dialectical process of the law by reading thecourt’s analysis of both parties’ arguments. Boyle, supra note 38, at 14–15.Rather than alienating large swaths of a class, self-determination theorists301

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5This theory translates to legal education in a meaningfulway. Students often come to law school thinking that they willlearn “the laws,” perhaps in some sequential order of importance.They are soon dismayed when their syllabi direct them tocomplete tasks seemingly unconnected with the goal of learningdescriptive definitions of each law. The student that thinks hewill learn “what the law is” is frequently disoriented by a flood oftasks focused more on rewiring the student’s analyticalmethodology. Thus, many students in the first semester find themajority of law school tasks to be inconsistent with what theythought they needed to learn to practice law. They may ask:“Why read this case about a contract from 1889 when I could justwould recommend explicitly explaining this process to students to demystify thelearning process, create greater learning motivation, and engage students to bemore cognizant of their mission. See Zimmerman, supra, at 909 (recommendinginstruction which promotes a feeling of connectivity between law students andtheir work to cultivate intrinsic motivation); Lustbader, supra note 14, at 844(arguing that ASP faculty work “to help students retain a sense of self-worthand to demystify the learning process”).Professors set in their ways might posit two objections. First, with allthe material on the first-year agenda, how can doctrinal professors possiblydevote time to something which, for decades, has been left to students’ implicitlearning? See Bloom & Schulze, supra note 43, at 14–16 (discussing challengesto getting faculty on board with integrated learning). See Jacobson, supra note78, at 900–05 (noting the external and internal influences contributing to thelack of change within law school pedagogy). That answer leads to the thesis ofthis Article: Instead of having doctrinal professors change their ways, simplyinclude an ASP whose central purpose is to demystify the process of learninglaw.Second, what of the age-old tradition of law student selfenlightenment?See Lloyd, supra note 87, at 677 (arguing that law schools havebeen shifting away from “hard” law school teaching methods). Should weabandon the project of forcing students to teach themselves of the macroorganizationof law school learning? Should they not figure out for themselvesthe nature of law school pedagogy? Should we spoon-feed this generation,because understanding the big picture is just too in-depth for such a “give-mewhat-I-need-now”generation? The answer is “no.” See id. at 681–84; Ruta K.Stropus, Mend It, Bend It, and Extend It: The Fate of Traditional Law SchoolMethodology in the 21st Century, 27 LOY. U.CHI. L.J. 449, 487 (1996). I am notsuggesting that we reduce all legal learning to lectures on what the law “is.”What I suggest is that instead of playing a strict game of pretending thatnothing in law school is all that different from other learning, we give studentsthe tools to unravel this mysterious new learning method. SDT and autonomysupport would provide a sensible middle ground in this respect, which isdiscussed next.302

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportread my state’s statute on how contracts are formed?” Likeautonomy support, law schools’ failure to comport with SDTresults in frustration, disconnectedness, and ultimately lessthan-optimalpedagogy.B. What Is Autonomy Support?Krieger and Sheldon assert that autonomy support has threefacets:(a) choice provision, in which the authority providessubordinates with as much choice as possible within theconstraints of the task and situation; (b) meaningful rationaleprovision, in which the authority explains the situation incases where no choice can be provided; and (c) perspectivetaking,in which the authority shows that he or she is aware of,and cares about, the point of view of the subordinate. 117In the law school setting, these three factors translate to: (1)faculty or administrative actions that provide as muchmeaningful choice to students as possible; (2) where meaningfulchoice is not pedagogically sound or is otherwise unavailable,then the students should receive an explanation as to why choiceis not available; and (3) the overt demonstration of respect andunderstanding for student perspectives and preferences. 118Sheldon and Krieger have demonstrated the positive effectsof law school environments that provide autonomy support andthe negative effects that are unnecessarily controlling. In onestudy, they empirically compared the autonomy support at twovery different law schools. 119 At the first law school, facultyhiring criteria focused upon scholarship, not teaching skills. 120By contrast, the second law school focused on practice experienceand demonstrated teaching ability. 121 Also, in contrast to the117. Sheldon & Krieger, supra note 111, at 884.118. See Justine A. Dunlap, “I’d Just As Soon Flunk You As Look at You?”The Evolution to Humanizing in a Large Classroom, 47 WASHBURN L.J. 389,402 (2008).119. Sheldon & Krieger, supra note 111, at 883.120. Id. at 886.121. Id.303

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5first school, the second provided more seminars for faculty onteaching skills, had many more faculty teaching skills courses,and integrated both skills and theory teachers within onefaculty—as opposed to a rigid hierarchy favoring the non-skillsteachers. 122 The second school also offered more skills courses inthe curriculum and included a co-curricular requirement whichfocused on students’ professional development and theiremotional and mental health concerns. 123 In short, the secondlaw school focused more blatantly on the interests and prioritiesof its students.Sheldon and Krieger demonstrated in their rigorousempirical study, controlling for a number of demographicvariables, that students at the second law school reported greaterperceived autonomy support. 124 The students at that schoolperformed better in law school (as measured by GPA) and barpassage rate despite being a lower-ranked law school with lowerincoming indicators. 125 Sheldon and Krieger postulated thatstudents at the second school simply learned more as a resultof feeling more support. 126 They noted that “[s]uch aninterpretation would be consistent with past SDT experimentalfindings that autonomy-supportive educational contexts producegreater cognitive flexibility and conceptual learning.” 127A simple example highlights the power of autonomy support.In most American law schools, the first-year curriculum isuniform for all students. Obviously, this deprives students ofchoosing their classes, something to which they have likelybecome accustomed in college. To a degree, this underminesstudents’ sense of autonomy, presumably a negative repercussionof mandating the first-year curriculum. However, law schoolscould provide autonomy support by explicitly explainingrationales for this situation—these are the core courses that allstudents must learn to become lawyers—and somehow304122. Id.123. Id.124. Id. at 888–90.125. Id.126. Id.127. Id. at 891 (citation omitted).

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportexpressing respect for students’ opinions regarding thisconstraint—by providing legal writing sections devoted to certaindoctrinal concentrations and then allowing students to choosetheir legal writing section. Except for a few schools, concertedefforts towards providing autonomy support are rare.V. ANALYSIS: HOW ACADEMIC SUPPORT HUMANIZESTHE LAW SCHOOL, FULFILLS SELF-DETERMINATIONTHEORY, AND INCREASES AUTONOMY SUPPORTJust as ASPs are diverse, so too are the justifications forhumanizing the law school environment, enhancing selfdetermination,and providing autonomy support. This Partdiscusses how ASPs contribute to these goals.A. Academic Support’s Role in Humanizing the Law SchoolThis section details the ways in which academic supporthumanizes the law school environment. Recall the three basictenets of humanizing: (1) do no harm; (2) teach students, notsubjects; and (3) peace and justice. 128 “Do no harm” meansidentifying sources of negative stress, reducing or eliminatingthose stressors, and helping students manage those stressorsthat cannot be eliminated. 129 “Teach students, not subjects”means altering the law school environment from a focus ondoctrine to a focus on students; this includes teaching holisticallyby valuing students’ differences, their diverse intelligences, andtheir common needs. 130 In short, it means moving from a onesize-fits-allpedagogy towards to a utilitarian theory of optimizingthe learning potential of many individuals in a group. Finally,“peace and justice” means shifting towards a focus on problemsolving and away from the implicit message of law as inherentlya zero-sum game. 131 Thus, it provides a connection betweendoctrine and what students can do with doctrine as lawyers.128. See Fines, supra note 37, at 313–22.129. Id. at 314.130. Id. at 318–22.131. Id. at 322–23.305

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 51. Humanizing Tenet Number One: “Do No Harm”Under the principle of “do no harm,” many commentatorsanalyze how the negative side of competition in law schoolscreates psychological harm. 132 Mandatory grading curves, thelaw school rumor mill, class rankings, limited access to lawreview, and preferred access to career services are commonthemes in this discussion. 133 ASPs combat these problems inseveral ways.a. ASP Skills Workshops Helping to “Do No Harm”Students suffer substantial amounts of stress from having toplay the “information access” game in law school. 134 Becausemany law schools fail to provide information on study skills, butfaculty occasionally comment on the importance of such skills,students compete for access to the “best” resources. The purchaseand possession of the “perfect” study aid, creation and possessionof the “perfect” outline, and access to a professor’s mindsetregarding the “perfect” construction of an essay answer oftenoccupy a great deal of students’ time. The law school rumor millis often the only source of information on these resources.Providing ASP classes on these topics takes that process outof the law school rumor mill because all students have access tothe methods of creating strong outlines, thus ending thecompetition for best sources. For instance, at New England Law| Boston, the Academic Excellence Program classes include asession on proper outlining techniques and explain that it is theprocess of outlining, not the mere possession of a good one, thatleads to success. 135 It also includes instruction and feedback on132. Lynn C. Herndon, Help You, Help Me: Why Law Students Need PeerTeaching, 78 UMKC L. REV. 809, 810 (2010). “[N]egative perceptions” aboutlaw school “include the overwhelming workload, intimidating classroomdynamics, excessive competition, astronomical debt, personal isolation, lack offeedback, and the nearly exclusive emphasis on linear, logical, doctrinalanalysis.” Id. (internal quotation marks omitted).133. Christensen, supra note 52, at 81 (“Minimally, the curve increasescompetition and devalues learning over performance.”).134. Id. at 78–79.135. See Louis N. Schulze, Jr., Academic Excellence (Fall 2010) Syllabus (on306

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supporthow to write a proper essay response and coordinates theseclasses with doctrinal professors to provide students withenhanced opportunities to get the official word on thefundamentals of proper legal analysis. 136 Finally, the Programholds a mock exam just prior to first-year midterm exams to givestudents a first-person experience with expectations of law schoolexams. 137 Thus, because students have an opportunity toexperience the practice of examinations in a consequence-freeenvironment, the stress they encounter during real exams isreduced.In this way, these methods typify the notion of “do no harm.”They identify competition over access to information as anegative stressor and attempt to eliminate that stressor byproviding the information that fills the information access gap.In so doing, these programs advance the first principle ofhumanizing.b. ASP Career Advice as Helping to “Do No Harm”Another way that ASPs alleviate the negative psychologicalimpact of law school is by providing outlets of understanding forunderperforming students. In the conventional law schoolenvironment, those who underperform during the first year oftenare left to fend for themselves in terms of future employment. Bycontrast, the limited resources of such outlets—including careerservices, law review, and judicial clerkship advising—are usuallyreserved for students at the top of the class. This “disappearingcareer services effect” leaves underperforming students with theimplicit message that their lower grades result in the law schoolnot really caring about their future employment.An example of a program mitigating this problem is theAcademic Achievement Program (AAP) at The University of IowaCollege of Law. 138 The program director, Brian Farrell, conductsa workshop for students at the beginning of their secondfile with author).136. See Bloom & Schulze, supra note 43, at 13–14.137. Id. at 14.138. Academic Achievement Program, UNIV. IOWA COLL. L., http://www.law.uiowa.edu/academics/academic-achievement.php (last visited on Oct. 23, 2010).307

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5semester entitled “Defining Success.” 139 This presentation isgeared towards students whose grades after mid-year examsmight not put them at the top of the class. 140 Rather than leavethese students alone to deal with the anxiety of facing anuncertain employment future, Iowa’s AAP attempts to equipthem with skills to move forward. 141 In this joint programbetween the AAP and the career services office, students are firstencouraged to recognize and accept their situation rather thanrationalize about it. 142 At the same time, students are reassuredthat their grades do not define them as people. 143 Hearing thismessage explicitly from the law school likely avoids thedehumanizing impact of facing these grades in the absence ofsuch a comment. 144Second, students are counseled on what exactly their gradesmight mean; while many students might be worried that a fewBs could result in the termination of their efforts towards being alawyer, the workshop instead paints a more realistic picture ofthe possibility of future employment. 145 It also providesencouragement in the form of data on the possibility of “grademobility” and on the fact that many students graduating towardthe bottom of the class still find lucrative employment. 146 Thepresenters then ask students to consider what career goals arepractically available to them and what measures they can take inthe next twenty-four hours, and in the longer term, to make itmore likely that they can reach these goals. 147 Students areexplicitly given the opportunity to meet individually with theAAP director, the career services office, or both. 148 The strategicpartnership between the AAP and career services specifically139. See Telephone Interview with Brian Farrell, Dir. of AcademicAchievement, Univ. of Iowa Coll. of Law (June 14, 2010).140. Id.141. Id.142. Id.143. Id.144. Id.145. Id.146. Id.147. Id.148. Id.308

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportnegates the “disappearing career services” effect.This program typifies the goal of “do no harm.” Recognizingthat underperformance is a stressor related to futureemployment and knowing that this stressor cannot be eliminated(after all, by definition 50% of students must be in the bottomhalf of the class), Iowa Law attempts to provide students withthe skills to manage this negative stressor. In so doing, thisprogram advances the goal of humanizing the law schoolexperience.c. ASP Community Building as Helping to “Do No Harm”An additional means by which ASPs help alleviate thenegative psychological impact of law school is by providinglearning in an environment more encouraging to many womenand students of color. For instance, the primary purpose ofSeattle University School of Law’s Academic Resource Center(ARC) “is to help diverse and non-traditional students adjust,succeed, and excel in law school.” 149 Its mission “involvesacculturating and empowering those who may or do feeldisenfranchised by the law school experience.” 150 The ARCachieves this goal by providing a for-credit, seven-week course inthe summer before a student’s first year, combining criminal law,legal writing, and study strategies. 151 The program continuesassisting these students through the academic year by means ofstudy sessions, workshops, and work with student teachingassistants. 152 The students in the program report that “itprovide[s] them with a safe haven, which enable[s] them to retaina sense of themselves and feel there [is] a place for them in thelegal community.” 153In this way, the Seattle Law ARC program contributes to thehumanization of the law school environment. By providing a149. Program Overview, SEATTLE U. SCH. L., http://www.law.seattleu.edu/Academics/Academic_Resource_Center/Program_Overview.xml (last visited Oct.20, 2010).150. Id.151. Id.152. Id.153. Id.309

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5resource for diverse and non-traditional law students to integrateinto the legal community, ARC counteracts the problemsdiscussed previously of the alienation of women and minoritystudents by traditional law school methodologies. 1542. Humanizing Tenet Number Two: “Teach Students,Not Subjects”Fundamentally, the notion of “teaching students, notsubjects” means refocusing the delivery of knowledge from onesize-fits-allto pedagogy more focused on reaching individuals. Itmeans making the learning process more accessible to as manystudents as possible, instead of distributing knowledge in theway most preferred by the one person in the classroom whosetask is not to learn—the teacher.One way in which academic support “teaches students, notsubjects,” is by its focus on individual students. The conventionallaw school, it can be argued, focuses on a teacher-centeredclassroom: 155 The professor is the leader, the source of knowledge,and the person who requires answers and analysis fromstudents. If a learner does not understand a concept, questionsoften receive the response of another question. Although thismay force students to think for themselves and to be self-taughtlearners, taken to its extreme, it deprives students of animportant facet of the learning experience. ASPs counteract thisproblem in several ways.a. Individualized Academic Counseling as “Teach Students,Not Subjects”The academic support method of providing individualizedacademic counseling focuses on students, not subjects. Oneexample of this method occurs in Suffolk University Law School’sAcademic Support Program. That program prioritizes anacademic support method focused on individual academiccounseling. Each ASP faculty member is available to all students310154. See supra Part III.C.3.155. See Herndon, supra note 132, at 813.

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportin the law school for such counseling, but the majority ofindividual meetings are with underperforming students, studentsreferred to the ASP by professors, or students on probation. 156The purpose of such meetings is to help students create anIndividualized Learning Plan (ILP). 157This process starts with an intake meeting in which the ASPfaculty member mainly listens to the student describe what sheis doing to study, what she is not doing to study, and what herfears and concerns might be. 158 After assessing the strengthsand weaknesses of the student’s study methods, the ASP facultymember gives the student one small task to accomplish prior tothe student’s next meeting. 159 The purpose of such a modeststart, which often includes simple tasks such as recording a“study diary” or spending an hour a day on post-class review, isto give the student an easily achievable initial success uponwhich to build future successes of a broader nature. 160In a subsequent meeting, the SUASP faculty member workswith the student to create an ILP. 161 This ILP will focus oncounterbalancing the student’s weaknesses while capitalizing onher strengths. 162 Emphasis is placed primarily on creating anindividualized daily study schedule, which guides the student inapplying important skills like properly reading cases, takingeffective notes in class, and post-class review. 163 The rest of thesemester, the student returns on a regular basis—anywhere fromweekly to monthly, depending on the student’s needs—forfeedback on assignments, review of whether the student isproperly following the plan, and insight into the level ofimprovement. 164 Oftentimes, the ASP professor will need to156. See Telephone Interview with Herb Ramy, Dir. & Professor ofAcademic Support, Suffolk Univ. Law Sch. (June 25, 2010).157. Id.158. Id.159. Id.160. Id.161. Id.162. Id.163. Id.164. Id. Another important facet of the SUASP professor’s role is to discernwhether a student is suffering from personal, emotional, or psychological issues.311

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5provide either critical feedback, if the student’s work ethic ormethods are lacking, or positive feedback if the student ismaking progress. 165 In this way, the ASP professor carefullyprovides feedback aimed at ensuring that the students areworking to their optimal potential. 166At the end of the semester, the ASP professor meets with thestudent prior to exams. 167 In this meeting, the professor citesspecific examples of how the student improved over thesemester. 168 The professor might compare the student’s firstpractice essay of the semester to the student’s final essay,showing the vast amount of improvement in the student’sskills. 169 In this way, the ASP provides the student with positiveencouragement and a sense of optimism as she enters theexamination period. 170This type of individual academic counseling demonstratesacademic support’s impact in achieving the “teach students, notsubjects” goal and humanizing the law school environment.First, by working individually with students, academiccounseling mitigates the negative impact of the one-size-fits-alltendency of the rest of the law school environment. For instance,Suffolk Law is one of the biggest law schools in the country, andits status as an urban school might result in students feeling theimpact of large class sizes. 171 The ASP provides students withId. If so, the SUASP professor can choose to work directly with the student orto refer him to centralized professional counseling resources. Id. This decisionis fraught with challenges. For instance, if the SUASP professor does not referthe student to professional help, the risk exists that the student’s condition willdeteriorate without treatment. In the alternative, if the SUASP professor doesrefer the student, students can sometimes misperceive this referral as theSUASP professor “washing his hands” of the student. Id. To counteract this,Professor Ramy explicitly tells students that he will continue to meet with thestudent on academic issues, but that the referral is to ensure that the studentreceives resources that might be beyond the expertise of the SUASP professor.See id.165. Id.166. See id.167. Id.168. Id.169. Id.170. See id.171. See id.312

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportthe resource of one-on-one meetings with a faculty member, thusconnecting the student more intimately with the law school.Second, by working with students to develop their own ILP, theASP focuses on the student’s learning as an individual, not justanother member of the herd who should be able to learn in theexact same way as the other students in her section. Finally, byproviding encouragement and feedback—both positive andconstructively negative—to struggling students, the ASP signalsthe law school’s sincere dedication to its students’ success. 172b. ASP Collaborative Methods as “Teaching Students,Not Subjects”Although the conventional law school’s teacher-centeredclassroom forges a self-reliant mentality under the auspices ofmimicking the learning process in the practice of law, in truththis is a misconception. In the practice of law, lawyers oftenlearn by means of collaboration, not isolation. So, another wayASP focuses on “students not subjects” is through the use ofcollaborative and cooperative methods to a greater degree thandoctrinal classes. 173 Specifically, many schools provide academicsupport through peer-learning methods, thus providingcooperative and collaborative learning.The University of Miami School of Law offers extensive peerfacilitatedstudy sessions through its Academic Achievement172. Id. Professor Ramy specifically brought up a negative trend inacademic support methods. As ASPs become more plentiful throughout thenation, many schools seek to provide academic support to more students withthe same amount of (or fewer) resources. See id. This resource crunch forcesacademic support professionals to eliminate or minimize the amount ofindividualized academic counseling in favor of one-size-fits-all large classroomacademic support. Id. While it is encouraging that academic support hasbecome so mainstream that law schools are comfortable with ASP professorsteaching entire first-year classes, the impact of individualized academiccounseling on humanizing law schools is minimized. See id. He urges,therefore, that law school ASPs retain as much individualized academiccounseling as possible, noting that an ASP professor is much more likely toobtain important information about a student in an individual meeting than ina classroom filled with dozens of other students. Id.173. See Herndon, supra note 132, at 825.313

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5Program. 174 Through “Dean’s Fellows Study Groups,” first-yearstudents have the opportunity to work weekly in study groupsfacilitated by academically successful upper-class students. 175These Dean’s Fellows receive training in active learningtechniques and in learning styles theory, 176 (a topic addressedbelow). 177 The selection of the Dean’s Fellows is a collaborationbetween the program director and the doctrinal professor towhom the Fellow will be assigned. 178 The Dean’s Fellows attendthe class sessions of that course and then subsequently meetwith first-year students in a less formal environment. 179Importantly, the law school supports this program to the degreethat it is open to every first-year student, and about 90% of thosestudents actually participate. 180This program demonstrates the humanizing ideal of“teaching students, not subjects.” Rather than leaving novicelearners alone to struggle through their misunderstanding of thelaw, the Dean’s Fellows provide a less intimidating environmentso that students can work through their conceptualization oflegal doctrines in a forum that fosters interactive questioning,focuses on individual learning aptitude, and provides cooperativeand collaborative support. Commentators assert that peerteachingbenefits both the tutor and the novice learner. 181 Itbuilds confidence and empathy, reduces the social isolation of theSocratic Method, and promotes active learning rather thanpassive learning, which is less effective. 182 In this way, theDean’s Fellows program at the University of Miami School of174. See Dean’s Fellow Study Groups, U. MIAMI SCH. L., http://www.law.miami.edu/aap/aap_02.php?op=2 (last visited Oct. 20, 2010).175. See E-mail from Joanne Harvest Koren, Dir., Academic AchievementProgram, Univ. of Miami Sch. of Law, to author (June 15, 2010, 16:40 CST) (onfile with author) [hereinafter Koren E-mail].176. Id.177. See infra Part V.B.3.178. Koren E-mail, supra note 175.179. Id.180. Id.181. See Herndon, supra note 132, at 819. Ms. Herndon discusses studentlearning groups, and asserts that they enhance humanizing, self-regulatedlearning, collaborative learning, and cooperative learning. See id. at 822–29.182. Id. at 819.314

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic SupportLaw is an example of another academic support method thatadvances the goal of humanizing law school.c. ASP Focus on Learning Styles Theory as “Teach Students,Not Subjects”Another academic support method that fosters the “teachstudents, not subjects” mentality is the focus on individuallearning styles. Learning style theory relates to “the way inwhich an individual begins to concentrate on, process,internalize, and remember new and difficult academicinformation or skills.” 183 Relating to the field of metacognition,learning styles theory has led many educators to understandbetter that each student in a classroom learns differently. Forinstance, the VARK instrument, created by Neil Fleming, “is aquestionnaire that provides users with a profile of their learningpreferences. These preferences are about the ways that theywant to take-in and give-out information.” 184 Although verysimple, VARK generally informs respondents whether they arevisual, auditory, read-write, kinesthetic, or multimodallearners. 185 It also informs respondents whether their preferencefor one or two particular learning styles is particularly strong. 186Other learning styles models include the Myers-Briggs TypeIndicator; David Kolb’s Learning-Style Inventory; HowardGardner’s Multiple Intelligence Theory; Daniel Goleman’sEmotional Intelligence; and the Dunn and Dunn Learning StyleModel. 187Regardless which theoretical model is used, academicsupport’s adoption of a philosophy of focusing on an individual183. Joanne Ingham & Robin A. Boyle, Generation X in Law School: HowThese Law Students Are Different from Those Who Teach Them, 56 J. LEGALEDUC. 281, 282 (2006).184. Frequently Asked Questions, VARK, http://www.vark-learn.com/english/page.asp?p=faq (follow “What is VARK?” hyperlink) (last visited Oct. 23,2010).185. See The VARK Categories, VARK, http://www.vark-learn.com/english/page.asp?p=categories (last visited Dec. 13, 2010).186. Understanding the Results, VARK, http://www.vark-learn.com/english/page.asp?p=understanding results (last visited Dec. 13, 2010).187. Ingham & Boyle, supra note 183, at 283.315

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5student’s preferred (and often subconscious) learning style thusfocuses on teaching students rather than subjects. For instance,at Oklahoma City University School of Law, the Study forSuccess Program includes several elements using learning stylestheory to enhance students’ success and individualize the lawschool learning process. 188 In the Foundational Skills Series, aseries of workshops open to all students with a target audience ofthe first-year students, attendees learn the scientific basis andtheories behind preferred learning styles. 189 They then useeither the VARK instrument 190 or learning-styles-online.com 191 todetermine whether they are visual, auditory, read-write,kinesthetic, or “multimodal” learners. 192 The instructor thenexplains examples of how to accomplish certain law school studytasks in a more effective way, using one’s preferred learningstyle. 193Rather than teaching all students to outline in thetraditional way—a hierarchical written system organizingdoctrinal material using roman numerals, then capital letters,etcetera, the academic support professional shows differentmethods of outlining which accommodate each learning style. 194While read-write learners are taught the alpha-numeric,hierarchical outlining method, visual learners are taught how tocreate a “mind map” of course material in a way that comportswith their absorption style that leans towards visualrepresentations. 195 These students are also referred to softwaresuch as FreeMind or Mind Manager. 196 Auditory learners aretaught how to “talk through” doctrinal material and even to188. E-mail from Chelsea M. Baldwin, Assistant Dir., AcademicAchievement, Okla. City Univ. Sch. of Law, to author (July 7, 2010, 14:55 CST)(on file with author) [hereinafter Baldwin E-mail].189. Id.190. See VARK, http://www.vark-learn.com (last visited Dec. 13, 2010).191. Discover Your Learning Styles—Graphically!, LEARNING-STYLES-ONLINE.COM, http://www.learning-styles-online.com (last visited July 28, 2010).192. Baldwin E-mail, supra note 188.193. Id.194. Id.195. Id.196. Id.316

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportrecord this information by means of a digital voice recorder. 197Finally, kinesthetic learners are taught how to write an outlineas a series of flashcards or how to make a master outline on agiant scroll of butcher paper. 198 Underperforming students whowork with the Study for Success Program in the spring are urgedto journal the ways that they tweak their study methods tocomport with their preferred learning style. 199This type of instruction demonstrates an academic supportmethod that humanizes the law school environment by “teachingstudents, not subjects.” By teaching students both how todetermine their preferred learning style and how to alter theirstudy methods to create better absorption of material, thismethod customizes the learning environment for each individualstudent. This stands in contrast to the traditional law schoolenvironment, in which students learn through the law schoolrumor mill that there are only two ways to study law: readingcases (or hornbooks) and outlining. That traditional approach,which focuses strictly on read-write learners, ignores all otherlearners—visual, audial, kinesthetic, or multimodal—who mightturn out to be outstanding lawyers if not forced to digest the onesize-fits-allmentality of the traditional law school. This methodhumanizes the law school and increases the likelihood ofstudents’ success.3. Humanizing Tenet Number Three: “Peace and Justice”The definition of “peace and justice” might best be describedas follows: “The call to humanize legal education is part of amuch larger call to humanize the profession by recapturing theessence of professional values—peacemaking, problem solving,and justice work.” 200 As discussed previously, each of thesevalues gets little to no mention in the traditional law schoolcurriculum, and specifically during the first year. Peacemakingis virtually ignored, as students’ primary vision of law practice is197. Id.198. Id.199. Id.200. Fines, supra note 37, at 322.317

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5through the lens of appellate decisions—a venue in whichlitigants are making war, not peace. Problem solving is givenshort shrift as well, given that students are inundated with zerosumgame analysis and never given the opportunity to solveclients’ problems—except perhaps in a clinic. Finally, “justicework” is a term completely absent from the traditional law schoolenvironment, as it is viewed as a subjective, irrational enterprisebest stamped out early in one’s law school career. 201On this same front, Professor Paula Lustbader identifiesthree dimensions of justice that impact law school learning:distributive, commutative, and social. 202 She argues that lawschools violate distributive justice in their admissions practices,merit scholarship practices, and pedagogical practices. 203 Sheargues that the traditional law school environment violatescommutative justice (fundamental fairness) by providing nolearning choices in the first year; forcing students to ignore theirlearning styles; providing little, if any, feedback and only oneformal assessment of their learning; and abstracting thediscourse so as to ignore the particulars of many students’ lives,201. See Lustbader, supra note 32, at 613–14 (detailing the alienatingexperience of a first-year law student encouraged to divorce herself from herbeliefs).202. Id. at 615. Distributive justice considers whether the distribution ofopportunity is equitable. Id. Commutative justice focuses on whether therelation between one party and another is fundamentally fair, particularlywhen there is a power imbalance between the parties. Id. at 618. Social justicemeans that “persons have an obligation to be active and productive participantsin the life of society and that society has a duty to enable them to participate inthis way.” Id. at 620.203. Id. at 617–18. Granting merit scholarships on the grounds of highLSAT scores violates distributive justice: less wealthy students are less likely tobe able to afford an expensive preparation course and they are less likely toreceive a scholarship. Id. at 617. These students need to earn money duringlaw school: they must have a job during law school, thus limiting the timeavailable to study. Id. at 617–18. Maintaining a job means they have lessstudy time, impacting their grades. Id. at 618. Finally, on-campus interviewsgo to students with strong GPAs, so less wealthy students thus have less accessto the better jobs. Id. She also argues that the traditional law schoolenvironment violates distributive justice by favoring students who can excel ina pedagogical context focusing on the Socratic Method, limited feedback, and asingle examination. Id.318

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportvalues, and interests. 204 Finally, she argues that the traditionallaw school violates social justice by lacking diversity, failing tofoster civility, and suppressing the classroom participation ofcertain groups. 205 The upshot with each of these dimensions ofjustice is that the traditional law school environment fails tocreate a learning community to promote a pedagogy of justice.ASPs can help to remedy this problem. At Seattle UniversitySchool of Law, the Academic Resource Center (ARC), forinstance, focuses on creating “learning communities,” an“intentional grouping[] of students for the purpose of creatingpositive learning environments that support learning andencourage a sense of belonging among the group members.” 206“An effective learning community respects and values diversity,includes an integration of knowledge and learning, practicesactive learning, provides assessment and reflection, and supportscommunity.” 207To effectuate these ideals, the ARC provides a seven-weeksummer course and a tutorial program during the academic yearavailable to students admitted through an alternativeadmissions program. 208 The alternative admissions programadmits students who do not meet the law school’s traditionalrequirements for LSAT or undergraduate GPA; students “whohave been culturally, economically, or historically disadvantaged;who have not been in an academic setting for a number of years;or who have learning or physical disabilities.” 209By giving a path of access to non-traditional students, theARC comports with distributive justice. 210 It comports withcommutative justice (fundamental fairness) by changing the204. Id. at 618–20.205. Id. at 620–21. Professor Lustbader details two alienating experiencesshe witnessed while in law school and remarks on how those experiencesimpinged upon her ability to learn. Id. at 621–23.206. Id. at 625.207. Id. at 626.208. Id. at 629. The summer course, which occurs pre-matriculation,focuses on criminal law, legal writing, study skills, and legal analysis. ProgramOverview, supra note 149.209. Lustbader, supra note 32, at 629.210. Id.319

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5learning environments for its students by providing morefeedback, contextualizing learning into more individualizedmessages, and promoting (rather than repressing) students’understanding of their preferred learning styles. 211 It comportswith social justice by promoting diversity (both in the law schooland the profession), promoting civility by supporting community,and encouraging class participation by empowering students tovocalize their learning in a more comfortable environment. 212The ARC gives students an object-lesson by showcasing rolemodel lawyers who practice their craft with justice in mind. Inthis way, this method humanizes the law school and increasesthe likelihood of students’ success. 213B. Academic Support’s Role in Empowering StudentSelf-Determination and in Increasing PerceivedAutonomy SupportThis section details the ways academic support helps providean environment of student self-determination and helps increaseperceived autonomy support. To review, self-determination is atheory of human motivation “concerned with supporting ournatural or intrinsic tendencies to behave in effective and healthyways.” 214 It holds that education methods providing learnerswith a sense of competence, autonomy, and relatedness are moreeffective and more psychologically sound in terms of theimpact on students. 215 Regarding competence, SDT supportspedagogical methods which permit students to feel that they aregood at what they learn or at least can become good at it. 216Autonomy refers to the psychological need to feel in control of211. See id.212. See id.213. See id. at 630. In fact, the ARC has been tremendously successful.About 650 students admitted under the program are now practicing law,despite traditional entry indicators indicating that they would not succeed. Id.Two ARC students have been named faculty scholars, one graduated first in hisclass, and many have ended up in the top twenty percent of their classes. Id.214. Self-Determination Theory, supra note 108.215. See supra Part IV.216. Id.320

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportone’s learning outcomes. 217 Relatedness focuses on the degree towhich the pedagogical method promotes the feeling ofinterconnectedness with others and that the learning will lead toa greater ability to use the skills to interact with other people. 218This section analyzes academic support’s impact on these factors.1. Self-Determination Theory Facet Number One: CompetenceProviding competence in pedagogical methods cuts both waysin the legal academy. While many students report that lawschool empowers them, many others report being made to feelincompetent and unable to grasp legal doctrine. 219 It may be fairto say that legal educators spend too little time pondering how toinstill in students the feeling of competence. This lack of positivefeedback, coupled with many forms of implicit negative feedback,may hinder students’ success and negatively impact theirpsychological well-being.Studies have shown that positive feedback promotes aperson’s intrinsic motivation to succeed at a given task, 220 whilenegative feedback has the opposite effect by underminingpeoples’ need for competence. 221 Thus, because positive feedbackis so lacking in most law schools while negative feedback is farmore common, any law school pedagogy supplying positivefeedback would be valuable in terms of supporting students’intrinsic motivation to succeed.Traditionally, law school exams, once finished, provided onlysummative—not formative—assessment. 222 The opportunity is217. Id.218. Id.219. Lustbader, supra note 32, at 614.220. Edward L. Deci, Effects of Externally Mediated Rewards on IntrinsicMotivation, 18 J. PERSONALITY &SOC.PSYCHOL. 105, 114 (1971).221. See Robert J. Vallerand & Greg Reid, On the Causal Effects ofPerceived Competence on Intrinsic Motivation: A Test of Cognitive EvaluationTheory, 6 J. SPORT PSYCHOL. 94, 99 (1984).222. WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FORTHE PROFESSION OF LAW 164 (2007). Summative assessment is feedback thatserves only to inform a student of his or her proficiency in a subject after thecompletion of study. Id. Formative assessment, by contrast, is feedback in theintermediate stages of learning seeking to provide learners with guidance on321

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5lost, therefore, to provide students both with an idea of what theydid well and what they could have done better. ASPs remedythat problem by turning summative assessment into formativeassessment, without a time-cost to doctrinal faculty, by providingboth positive and constructively critical feedback on students’work. 223At the University of Connecticut School of Law and NewEngland Law | Boston, for instance, students meet withacademic support professors for feedback on their mid-year examessays. 224 Students are required to obtain, read, and criticallyanalyze their mid-year essays before submitting the essays toacademic support faculty with whom they later meet. 225 Duringthat meeting, ASP faculty work with the student to identifystrengths and weaknesses in the student’s work. 226 Because thepurpose of such a meeting is not to reteach doctrine, 227 theaspects of critique usually focus on isolating examples of thetheir current proficiency in a subject as well as what they must do to improve.Id.223. See Bloom & Schulze, supra note 43, at 14–15.224. See id. at 13; E-mail from Rebecca Flanagan, Coordinator, AcademicSuccess Programming, Univ. of Conn. Sch. of Law, to author (June 29, 2010,15:08 EST) (on file with author) [hereinafter Flanagan E-mail].225. See Bloom & Schulze, supra note 43, at 13 (New England Law |Boston); Flanagan E-mail, supra note 224 (University of Connecticut School ofLaw).226. See Bloom & Schulze, supra note 43, at 13; Flanagan E-mail, supranote 224.227. See Bloom & Schulze, supra note 43, at 14–15. A debate exists in theacademic support field regarding the role of doctrine in law school academicsupport. While it is widely acknowledged that there is significant peril in “reteaching”doctrine, the wholesale schism between doctrine and skills is equallyquestionable. See id. As such, many in the field advocate for “contextualized”or “integrated” academic support, meaning that academic support attempts toimprove students’ skills by means of problems and activities in the context ofsubject matter recently learned in doctrinal courses. See id. at 16. A relatedthesis is that academic support professionals should avoid methods that focuson “tutoring” students. Id. at 14–15. There are two reasons for this. First,tutoring may implicitly place the responsibility for learning in the hands of thetutor, rather than the student. Id. This is especially detrimental for the studyof law, since a substantial part of legal education is teaching students how toteach themselves the law. Id. Second, tutoring by an instructor other than thestudent’s professor could fail to account for crucial doctrinal nuancesconstituting an important part of the professor’s grading. See id. at 16.Further scholarship on these issues is warranted.322

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportstudent’s skills and weaknesses. 228 These examples can includea failure to use specific facts to analyze the problem, a failure toargue both sides of an argument, or an instance where thestudent otherwise jumped to a conclusion without sufficientanalysis. 229Professor Paula Manning of Western State University of Lawwrites in a forthcoming article that these sorts of academicsupport feedback can:(1) build students up by showing appreciation, respect andunderstanding for their work; (2) develop students’ selfunderstandingand reflection skills—helping students to focuson non-competitive, achievable learning goals, i.e., doing theirbest and learning the material rather than on beating everyoneelse; and (3) to build self-efficacy, instilling in . . . students thebelief that success was within their grasp, so long as theypersisted in their efforts. 230In this way, ASP methods provide students with competencein an environment otherwise unlikely to meet this crucialpsychological need.2. Self-Determination Theory Facet Number Two: AutonomyAutonomy support has three separate aspects: (1) “choiceprovision, in which the authority provides subordinates with asmuch choice as possible within the constraints of the task andsituation;” 231 (2) “meaningful rationale provision, in which theauthority explains the situation in cases where no choice can beprovided;” 232 and (3) “perspective-taking, in which the authorityshows that [he or she] is aware of, and cares about, the point ofview of the subordinate.” 233 The traditional law school228. See id.; Flanagan E-mail, supra note 224.229. See Bloom & Schulze, supra note 43, at 13; Flanagan E-mail, supranote 224.230. Paula Manning, Affective, Effective Feedback, LEARNING CURVE (Am.Ass’n of Law Sch. Section on Academic Support) (forthcoming 2010) (on file withauthor).231. Sheldon & Krieger, supra note 111, at 884.232. Id.233. Id.323

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5environment basically is an object-lesson in how not to provideautonomy support. There is little, if any, choice provision in thefirst year: 234 students may not select their courses; they arepresented with one method to learn the law—read cases, readhornbooks, write outlines; and they are even taught that there isjust one way to think about law. Possibly of more importance,the second aspect of autonomy support is absent: Studentsusually never learn why there is no choice provision. If studentswere given an explanation as to why classes are all mandatory—because the bar exam focuses on these subjects and they are theuniversally foundational subjects—at least that would providesome autonomy. Instead, students are expected to do as they aretold, even if it means studying five subjects in which they havelittle interest. Finally, in the traditional law school environment,students often lack any indication that authority figures (faculty)care about their points of view.Once again, ASPs go a long way in ameliorating thissituation. In terms of choice provision and the traditional lawschool implicitly telling students that there is just one way tolearn the law, ASPs provide students with a deeperunderstanding of alternative ways to learn the law. As discussedpreviously, ASPs’ focus on learning styles theory provides choicesto students in terms of how they learn law: 235 visual, auditory,read-write, and kinesthetic learners can all tweak their studyprocedures to work with, rather than against, the way that theirbrains process information.Some ASPs take this a step further by providing instructionto students not only on how best to work with their individuallearning styles, but also how to determine and study inaccordance with their personality typology. 236 The essence ofpersonality typology, perhaps best typified by the work of C. G.Jung, Katherine Briggs, and Isabel Briggs Myers, is that “muchseemingly random variation in . . . behavior is actually quiteorderly and consistent, being due to basic differences in the ways234. Lustbader, supra note 32, at 618–19.235. See supra notes 188–99 and accompanying text.236. See Telephone Interview with Martha Peters, Professor of Legal Educ.,Elon Univ. Sch. of Law (June 29, 2010) (on file with author).324

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportindividuals prefer to use their perception and judgment.” 237Briggs and Briggs Myers developed the Myers-Briggs TypeIndicator (MBTI), which some ASPs use to help individualsunderstand their basic preferences “of each of the fourdichotomies specified or implicit in Jung’s theory” and to identifyand describe “the [sixteen] distinctive personality types thatresult from the interactions among the preferences.” 238 In usingthis instrument in law school, ASPs give students an even deeperunderstanding of how they, as individuals, learn new material,interact with others, and process information.For instance, at Elon University School of Law, the AcademicSkills Program incorporates personality typology in the lawschool orientation program. 239 During a half-day program,students focus on understanding the results of their MBTI test,which they have completed prior to the orientation. 240 A studentalso has the opportunity to self-assess his personality type andconsider why his self-assessment might differ from his MBTIresults. 241 Dr. Martha Peters, the Director of the Academic SkillsProgram, then conducts a series of exercises related to law schoolskills to demonstrate the utility of meta-cognition based onpersonality typology in law school studies. 242 For instance, sheseparates the introverts from the extroverts in the law schoollobby, and, as the introverts wait quietly for the exercise whilethe extroverts all talk with each other, Dr. Peters then discussesthe impact on law study of being either an introvert orextrovert. 243 Students are then further divided based upon theother personality dichotomies, such as intuitive versus sensing,and Dr. Peters discusses the impact of that particular personalitytype. 244237. MBTI Basics, MYERS &BRIGGS FOUND., http://www.myersbriggs.org/my-mbti-personality-type/mbti-basics (last visited Oct. 23, 2010).238. Id.239. Telephone Interview with Martha Peters, supra note 236.240. Academic Skills Program, ELON U. SCH. L., http://www.elon.edu/eweb/law/development/default1.xhtml (last visited July 30, 2010).241. Telephone Interview with Martha Peters, supra note 236.242. Id.243. Id.244. Id.325

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5Upper class students representing the various personalitytypes speak to the new class about what adjustments they madeto their studies due to their personality types, and Dr. Peterssubsequently works with individual students to help themunderstand what strengths and weaknesses might help orhinder their performance. 245 For instance, dominant intuitivepersonalities focus on patterns, not details. 246 Students with astrong intuitive personality type, therefore, can miss specificfacts in a multiple choice question because those facts do notmatch with the pattern they are observing. 247 Dominant sensors,by contrast, often fail to connect with the big picture; they takecases one at a time, and the doctrine stays within those caseswithout being related more broadly to other areas. 248 Dr. Petersworks with students in the area of personality typology, throughthe Academic Skills Program’s orientation sessions andsubsequent “LET’s Study” program, thus helping studentsproactively choose an optimal study method to optimize theirlearning based upon their individual personality types.In this way, Elon Law’s Academic Skills Program enhancesstudents’ autonomy. Rather than having to face law school in aone-size-fits-all mentality, students receive the explicit messagein the first days of law school that their individual learning skillsare important. This provides the “choice provision” aspect ofautonomy support.Furthermore, this program also fulfills autonomy support’s“perspective-taking” aspect. It does so by demonstratingexplicitly to students that the law school is aware of and caresabout each student’s point of view towards learning. Byproviding this autonomy support, Elon’s Academic SkillsProgram enhances the likelihood that students will succeed byconnecting them with intrinsic motivation—the satisfactionachieved through competence and mastery—rather than forcingthem to rely on the less efficacious extrinsic motivation—fear oflow grades or low class rank.326245. Id.246. Id.247. Id.248. Id.

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Support3. Self-Determination Theory Facet Number Three: RelatednessRelatedness in education means providing learners with asense that “they are relating meaningfully to others in the[learning] process, that is, connecting with the selves of otherpeople.” 249 Like competence and autonomy, relatedness is afundamental need of humans that has been compared “to aplant’s need for sunlight, soil, and water.” 250 In an educationalsetting, it means the connection to others in the learning process;in the legal education setting, it could mean connection to othersin the lawyering process.a. How Law Schools Traditionally Fail at Providing RelatednessLaw schools traditionally do a poor job of providing either ofthese types of relatedness. Mandatory grading curves andcompetition for the “prizes” of law school—law reviewmembership, clerkships, and career services assistance—alienates students from one another and undermines a lawschool’s ability to capitalize on the potential of human interactionin learning. Furthermore, law schools’ devotion to the casemethod and to doctrine at the expense of skills divorces studentsfrom their natural inclination to engage in lawyering; studentsspend the better part of a year of law school utterly separatedfrom fundamental lawyering skills—counseling, interviewing,and negotiating—that might connect them to practice and thuspeople. This section demonstrates how ASPs mitigate thatproblem.b. Academic Support Methods’ Role in Providing RelatednessASPs frequently employ methods that connect students toother learners and to the practice of law. This Article alreadydiscussed peer teaching methods used in ASPs and argued thatsuch programs help humanize the law school environment. 251These methods also promote relatedness as they link students to249. Sheldon & Krieger, supra note 111, at 885.250. Id.251. See supra Part V.A.2.b.327

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5one another, thus providing an essential nexus of compassionand shared understanding between two learners. Other ASPmethods have the same impact.For instance, at Capital University Law School, the AcademicSuccess Program spearheads a two-week pre-matriculationprogram designed, in part, to humanize the law schoolenvironment. 252 In addition to sessions on law school skills, theprogram offers a series of sessions ultimately serving to providestudents with a sense of relatedness. 253 First, the ASP runs a“Networking Bingo” collaborative exercise that forces students towork on a skill set—interpersonal relations—mostly ignoredin law school. 254 Not only does this exercise allow students torelate better to a skill they must employ in practice, but it alsoallows students to meet one another in an in-depth way, forgingbonds that will carry them through their challenging years in lawschool. 255Second, the Academic Success Program Director teaches aclass session during the pre-matriculation program on how towrite a proper handwritten thank you note and the benefits ofdoing so. 256 Each student is instructed to bring the name andaddress of someone who helped them get to law school. 257Students write the thank-you note, address it, and the ASP mailsit for them. 258 Students then form working groups; each studenttells the story of the person who helped them get to law schooland why they chose that person to receive their note. 259 Not only252. See E-mail from J. Joseph Bodine, Jr., Dir. & Professor, AcademicSupport Program, Capital Univ. Law Sch., to author (June 25, 2010, 06:07 EST)(on file with author) [hereinafter Bodine E-mail].253. Id.254. Id. This exercise derives from one created by the National Associationfor Law Placement, Inc. (NALP). See What Is NALP?, NALP: ASS’N FOR LEGALCAREER PROFS., http://www.nalp.org/whatisnalp (last visited Oct. 22, 2010)(“NALP is dedicated to facilitating legal career counseling and planning,recruitment and retention, and the professional development of law studentsand lawyers.”).255. See Bodine E-mail, supra note 252.256. Id.257. Id.258. Id.259. Id.328

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportdoes this session teach an important skill in lawyering—communicating with those who have given assistance—studentsbecome more connected to each other by hearing how eachstudent struggled to make it to law school.The final session in the series is intended to train studentson a skill they will need in law school and which many lawyerswill need in practice: how to deal with difficult language andsubject matter. 260 Students receive group training, using GeorgeCarlin’s infamous list of words not permitted on television, 261 onhow to communicate with others even when doing so requiressocially impolite language. 262 Students are then asked to pairwith a student they do not know and work through anexplanation of a very short case that requires them to quote thetestimony of a forensic pathologist who testified about injuries intwo terrible sexual assault cases. 263 Although students initiallyapproach this exercise tentatively, they soon develop the abilityto converse professionally on the subject matter and establishfriendships that connect them throughout law school. 264 In thethree years Capital has been running this session, the Directorhas needed to add an hour to the exercise because students wereso engaged by the process of working on real-life lawyeringskills. 265Each of the sessions in Capital Law’s pre-matriculationprograms serves the needs of relatedness. In each activitystudents work with other students on exercises designed to bringthem together in a learning environment of collaboration, ratherthan the traditional law school environment of competition,detachment, and solitude. By connecting the students with eachother, these exercises allow students to tap into the intrinsicallymotivating sense of interpersonal connectedness that will helpthem persevere through law school. In so doing, this cooperativelearning exercise cultivates students’ investment in each others’260. Id.261. FCC v. Pacifica Found., 438 U.S. 726, 751–55 (1978) (containing atranscript of Carlin’s monologue entitled “Filthy Words”).262. Bodine E-mail, supra note 252.263. Id.264. Id.265. Id.329

SCHULZE FINAL.doc1/20/2011 6:14PMCHARLESTON LAW REVIEW [Volume 5success, a concept called positive interdependence. 266 This is thecrux of relatedness, and recent studies have proved thatcollaborative learning is more effective than competitivelearning. 267Also, these exercises connect students to an ultimate sense ofpurpose in their learning that allows them to see how they willrelate in the future to clients, jurors, and other professionals byexposing students to practice skills usually ignored in law school:Professional communication. Instead of being sequestered for ayear away from these aspects of a lawyer’s professional life,exposure to methods of professional communication allowsstudents to see how the concepts covered in their doctrinalclasses might be expressed to their constituents in the future.Unlike the traditional law school’s tendency to deflate students,this aspect of relatedness empowers them to succeed.VI. CONCLUSIONThis Article set out to demonstrate the multiple academicand quasi-academic benefits of law school academic support. Forthose in the academy genuinely concerned about the well-being ofour students, this Article establishes that ASPs instill selfdetermination,promote autonomy support, and contribute to thegoal of humanizing the law school environment. As such,students will be more successful, both academically andpersonally, if law schools implement and expand ASPs.To prove this thesis empirically, I conducted surveys ofstudents at the law school where I teach. 268 The surveyinstrument questions separated students into three groups: thosewho participated substantially in our ASP classes, those whosomewhat participated in those programs, and those who barelyparticipated or did not participate at all. The initial results fromthis study show that those who participate substantially in266. See Roger T. Johnson & David W. Johnson, An Overview of CooperativeLearning, in CREATIVITY AND COLLABORATIVE LEARNING: APRACTICAL GUIDE TOEMPOWERING STUDENTS AND TEACHERS 31, 33 (Jacqueline S. Thousand et al.eds., 1st ed. 1994).267. See id. at 38.268. I will detail this study and its results in a subsequent article.330

SCHULZE FINAL.doc1/20/2011 6:14PM2011] Law School Academic Supportacademic support classes show higher levels of perceivedautonomy support, a greater degree of perceived selfdetermination,and a higher likelihood of perceiving our lawschool as humane. This is despite the fact that many of ourprograms focus on students who have underperformed in lawschool—a group one would expect to show lower degrees of theclassifications above.In the meantime, I conclude with the following: “Legaleducators, it seems, are quite willing to assume that traditionalSocratic classes are cost-effective, but they want tangibleevidence to justify academic support.” 269 This double-standard isall the more vexing given the studies showing that traditionallaw school methods—including the Socratic Method—are weakerin pedagogical value; harmful to women and minorities; andprobably the source of unlimited stress, mental health problems,alcohol and drug dependence, and unhappiness. 270 Nonetheless,the double-standard exists, and although reform efforts aregaining momentum, the status quo continues to persist. Despitethis, ASPs can serve as a vital source for offsetting the negativeaspects of law school, helping to foster a more efficacious learningenvironment, and leading to healthier, happier graduates.269. See Knaplund & Sander, supra note 27, at 162.270. See Morrison Torrey, You Call That Education?, 19 WIS. WOMEN’S L.J.93, 104–08 (2004) (criticizing the Socratic Method).331