Laura Dooley, JD
Professor of Law, Touro Law Center
In previous blog posts, education expert Dylan William, Dean Harry Ballan, and Professor Jack Graves began an important conversation about the use of short-form questions, particularly multiple-choice questions, to enhance learning and deliver immediate feedback to students.
In part II of their post, W&B use an example close to my heart to illustrate how a single distractor-driven multiple-choice question can reinforce student understanding of separate but related topics (I loved the example because I am an admitted, nay proud, procedure nerd). The example involves simple civil litigation in federal court and tests student understanding of the related concepts of joinder and jurisdiction in shaping a lawsuit. W&B describe how this seemingly straightforward question actually forces students to work through complicated rules, and indeed teaches “four rules in two minutes.”
Their blog post, along with Professor Graves’ (which expands upon B&W’s post by explaining the potency of the immediate “feedback loop”), got me thinking about a component of my classroom teaching I call “hypo hell” –a series of very short hypothetical problems presented typically on a single power-point slide. As I mentioned, I’m a confessed procedure nerd, and as such I enjoy digging into seemingly arcane and technical aspects of codes like the federal rules of civil procedure. Not surprisingly, perhaps, many students don’t necessarily share that enthusiasm, at least not at first. The bad news for those students is that such codes are essential texts with which they must engage if they want to succeed as attorneys (and pass the bar exam—the threshold to success). The good news is that the use of short-form questions—hypo hell—engages the students in ways they might not even realize. The process becomes less tedious, and more fun.
Most everyone likes puzzles (my incontrovertible evidence for this assertion is that whenever I get on a plane the first thing I do is check to see if the magazine crossword is available—and usually it isn’t!). Hypo hells are, essentially, puzzles that can be designed to force students to engage with texts that are not inherently engaging.
A time-honored practice in legal education is to use hypothetical scenarios to encourage students to extrapolate from the decided cases and statutes they are reading how courts might decide future cases. Professors (and bar examiners) devise hypos as predicates to both multiple-choice and essay questions to test student understanding of legal doctrines that derive from caselaw and codified texts. The example used by W&B in their blog post illustrates this. To answer the question correctly, students need to have mastered four rules of joinder and jurisdiction—and understand how those rules interact—a sophisticated analysis (especially given that some rules derive directly from texts and others from interpretations of texts). Hypo hells can help students get there by providing an abbreviated and accessible process on each rule that then serves as a building block toward the ultimate analysis. And, importantly, success in classroom hypo hells also builds student confidence in their own analytical abilities.
Here’s a very simple example, using one of the rules tested by the question W&B use in their blog post:
Rule 18 of the federal rules of civil procedure says simply that “A party asserting a claim . . . may join, as independent or alternative claims, as many claims as it has against an opposing party.” Admittedly, it’s not exactly The DaVinci Code—but it does answer one question necessary to solve the ultimate problem of whether a car accident claim can be brought in the same lawsuit with a defamation claim. Though the claims are unrelated, Rule 18 unmistakably allows their joinder. A hypo hell can in short order cement this concept for students by asking a series of simple questions about various related and unrelated claims joined under the rule—all would be acceptable. Having cemented this notion, the teacher can then combine it with a hypo hell about the requirements of diversity jurisdiction and ultimately to a sophisticated multiple- choice question indicative of what would be asked on the bar exam.
I’ve also found that using hypo hells to engage with essential texts invites deeper conversations about strategy. Students who self-select into higher education tend to have something of a competitive spirit, and those in professional schools are driven to understand how a particular concept can help them better perform later in their careers. Hypo hells place the students into the position of not just reading, but using, important texts. I often tell students that the federal rules are their friends. Hypo hells demonstrate why that is true.
To be sure, the ultimate goal is analysis far more sophisticated than anything a single hypo hell can accomplish. But to be able to perform that higher-level analysis, students must be comfortable with engaging necessary texts. We also might legitimately expect that students would have done that sort of text engagement during their class preparation. But a short classroom exercise—a hypo hell—can be a fruitful use of class time to establish common textual understanding and move on to more difficult analyses. Going to hell, it turns out, can be a good thing.