We all probably have experience with students resisting learning. My earliest encounter with this occurred in my first year of teaching when two police officers were enrolled in my evening division legal writing class. The spring assignment just so happened to be a criminal law problem, and the two officers rejoiced.
As we worked through the problem, however, these two intelligent, hard-working students struggled. They were incredulous when the class as a whole decided that self-defense was a subjective rule, and they exclaimed that they each had handled dozens of cases where self-defense required an analysis of “the reasonable person” – a decidedly non-subjective test. Despite my explanation that the Model Penal Code had a different rule than our common law jurisdiction, these students' first drafts of the assignments were not so much appellate briefs but instead polemics against subjectivity in self-defense. Luckily the draft was not worth many points, and the two soon better understood the idea that different jurisdictions have different rules.
But I have observed this dynamic repeatedly. I have seen paralegals insist that a demurer cannot possibly be a motion at the beginning of litigation to clear out actions failing to state a claim. (That is the purpose of FRCP 12(b)(6), after all). I have had English majors resist CREAC or IRAC for sake of the liberal arts essay structure. And despite honors-level performance in law school and years of experience, a few foreign-trained lawyers underperformed because common law rule synthesis cannot possibly be a thing. I could go on and on.
In thinking through these struggles, I started considering what I called “cognitive resistance.”[1] This phenomenon leads to students subconsciously challenging pre-learned knowledge to frustrate the adoption of new knowledge that is inconsistent with prior learning. This idea fits into the constructivist theory of learning, that: “[L]earners build new knowledge upon the foundation of previous learning. This prior knowledge influences what new or modified knowledge an individual will construct from new learning experiences.”[2]
I think of this theoretical concept as a giant Tetris screen, where prior knowledge sits at the bottom of the display, and the falling shapes represent new knowledge. When learners successfully manipulate those shapes into the structure below, they “fit” with the prior knowledge, integrate seamlessly into it, and foster the development of greater understanding. When improperly manipulated, possibly due to errant conceptualization of the prior knowledge, the shapes stick out and prevent additional learning from “fitting” into the now blocked gaps below. I theorize that this blocking of the gaps is the cognitive resistance that my police officer students encountered.
So what do we do about this? I have taken two interconnected approaches. First, I explain to the students the nature of their confusion and expose them to legal authority proving the point. For instance, I show them the exact words in the MPC that establish a subjective rule. I have them read the FRCP even though they have yet to study Civil Procedure. I sketch out an annotated diagram of IRAC and compare it to the visual representation of the classic liberal arts essays. I have them rewrite the work in a manner that properly arranges the concept. As such, I have them experience the knowledge integration rather than have them take my word for it. This approach comports with the constructivist theory’s pedagogical method of problem-based learning.[3]
The second approach I take is the more important one. I simply explain to students this theory of cognitive resistance. In so doing, I take away the zero-sum-game that they are wrong or that I am wrong. I replace these negative affective emotions[4] with a less confrontational message that their confusion is not due to a lack of aptitude but instead a normal and documented phenomenon[5] that they can overcome.
I will be honest; this does not always work. There are powerful emotional forces at play here, especially for nervous 1Ls who negatively self-judge for even the tiniest learning struggles. As Professor Cassie Christopher explains, the projection of perfection message we send in legal education is that any degree of struggle a student might experience demonstrates their unsuitability for law practice.[6] Cognitive resistance certainly “fits” within this negative conceptualization and blocks our attempts to foster growth in potentially excellent future lawyers.
It does not to be that way, though. Understanding cognitive resistance and directly addressing it would help unblock the mental logjam and could foster better student success.
(Louis Schulze, FIU Law)
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[1] Others also have called this "learning resistance" or "resistance to knowledge restructuring." See Lewandowsky, S., Kalish, M., & Griffiths, T. L. (2000). Competing strategies in categorization: Expediency and resistance to knowledge restructuring. Journal of Experimental Psychology: Learning, Memory, and Cognition, 26(6), 1666–1684.
[2] Phillips, D. C. (1995). The good, the bad, and the ugly: The many faces of constructivism. Educational researcher, 24(7), 5-12.
[4] B. Kort, R. Reilly and R. W. Picard, "An affective model of interplay between emotions and learning: reengineering educational pedagogy-building a learning companion," Proceedings IEEE International Conference on Advanced Learning Technologies, 2001, pp. 43-46.
[5] See Lewendowsky, supra, note 1. This study found that injecting previously undisclosed complexity into a learning pattern midstream produced less learning than introducing the additional information at the beginning. The authors called this "resistance to knowledge restructuring."
Catherine M. Christopher, Normalizing Struggle, 27 Ark. L. Rev. 73 (2020).
