The importance of engaging in interleaved, formative assessments to understand and retain new material is well established.1 Academic support and bar preparation professionals know it (and preach it), doctrinal faculty know it, and students know it. When talking with students who are academically struggling, I regularly ask about the extent to which students are engaging in formative assessments. Nearly every student responds with something similar to “I know I should, but I don’t.” The students seem to make decisions and act in ways that are inconsistent with their own values and interests. I’ve seen similar behaviors in my studies of consumers’ decisions around environmentally responsible practices, and I’ve written in the past about how behavioral economics offers explanations for consumers’ suboptimal decisions and actions and solutions for dealing with them. My work in the environmental regulations sphere got me thinking about whether some of the same principles might apply to law students’ decisions and actions around preparing for class and exams. Preliminary research revealed that our colleagues in K-12 and undergraduate education are a bit ahead of those of us in legal education. Those educators have applied behavioral economic principles—specifically choice architecture interventions–to a range of student behaviors, from the completion of financial aid paperwork to enrollment in college and class attendance and retention in school.2
Building on their work, I set out to explore whether behavioral economics offered any solutions to help law students make decisions and engage in actions that are in their own best interests. I’m in the midst of responding to a set of four questions: (1) What do I want students to do?; (2) Why aren’t they doing it on their own?; (3) Which intervention, if any, will best help students exhibit the desired behavior?; and (4) Who will be the source of the intervention?3
What do I want students to do?
Responding to the first question was easy—as noted above, there is wide and well-established support for the practice of engaging in interleaved practice questions to assimilate new material. In the context of law school and particularly academic support and bar preparation, essay and multiple-choice questions are especially important.
Why aren’t they doing it on their own?
Responding to the second question was not as easy. Rather than rely on anecdata, I generated a survey that asked students about the value they place on engaging in practice questions, whether they complete as many practice questions during the semester as they plan to at the start, and if not, what obstacles keep them from doing so.4 I also asked about whether students obtained feedback on their responses and whether they found the feedback helpful. I administered the survey to 2L students during the middle of their fall semester. My thinking was that this group of students had likely well-established study habits around practice questions. 213 students were invited to respond to the survey, 64 did so, and of those, 55 fully completed the survey. In a separate piece, I will summarize the students’ survey responses. For the purposes of this article, I note that students recognized the importance of engaging in practice questions, and students generally acknowledged that they did not complete as many questions during the semester as they planned to at the start of the semester. Students’ reasons for not doing so clustered in two areas: a sense of cognitive dissonance and making decisions about study practices that spring from ineffective, if not errant mindsets.
Cognitive dissonance arises when individuals sense a conflict between two competing values or interests.5 Law students often experience cognitive dissonance when they make decisions about whether to spend study time reading and briefing for class or preparing for exams by engaging in essay and multiple-choice questions. Each is of great interest and value to the students, but often the immediacy and urgency of preparing for class draws students into spending their best study time, if not all their study time, reading and briefing for class. Students generally recognize that doing so may adversely impact their exam performance, giving rise to the conflict in interests and values, but they resolve the conflict by telling themselves that they will be able to prepare for exams tomorrow, or the next day, or the next week, or the next month. And so they focus their time and attention on preparing for class and do not invest the time they should during the semester preparing for exams.
Mindsets significantly impact student behavior and choices. Two have a particularly strong impact on law students’ choices: fixed mindset and imposter syndrome or lack of a sense of belonging. Students operating with a fixed mindset avoid engaging in practice essay and multiple-choice questions for several reasons, including a belief that their performance on the questions will indicate whether they have the innate capacity to learn the material or that engaging with the questions is a waste of time because they are not proficient with the question format and will never be proficient with the format. Students making choices from an imposter syndrome or lack of a sense of belonging mindset avoid engaging in practice questions because they believe that their performance on the questions will confirm their belief that they are outsiders who do not belong in law school.
Which intervention, if any, will best help students exhibit the desired behavior?
Having identified what I want students to do and isolated why students are not doing it, my attention next turned to the third question—which intervention is best? Behavioral economics interventions involve choice architecture interventions—interventions that shape the decision landscape that students operate in and students’ decision-making competencies. Two such interventions are nudges and boosts.
Nudges target specific behaviors, such as responding to practice essay and multiple-choice questions to prepare for exams, and nudges steer individuals toward those behaviors.6 Rather than expose students’ cognitive biases or weaknesses, nudges reverse or leverage them so that students, perhaps unwittingly, find themselves choosing to engage in the behaviors.7 Nudges can be classified as educative and non-educative.8 People tend to prefer educative nudges because the nudges “increase people’s capacity to exercise their own agency.”9
Educative nudges can provide decision information and/or decision assistance.10 Decision information nudges include making the information associated with the decision more accessible or providing social reference points for the decision.11 Examples include labels, warnings, and testimonials. In the context of practice question engagement, such nudges include (1) providing clarity on the kinds of questions that will appear on graded assessments and linking the graded questions to sources of practice questions or (2) sharing sample study calendars that reflect time spent reading and briefing for class and time spent engaging in practice questions. Decision assistance focuses on students’ self-regulation failures and includes reminders, commitment support, goal-setting, and accountability.12 In the context of practice question engagement, such assistance could come in the form of reminders from professors about the importance of engaging in practice questions, asking students to set particular goals for the completion of practice questions, holding students accountable for their goals through behavioral contracts, and seeking class-wide commitment to regularly engage in the questions.
Non-educative nudges impact the structure of decisions by adjusting the options available to students and/or the range or composition of the options.13 The clearest example of such nudges is a default-based choice architecture.14 In such a scheme, all students engage in a particular behavior, unless they affirmatively select not to. Defaults leverage the human tendency to prefer the status quo.15 In the context of practice-question engagement a default intervention would require students to regularly complete sets of practice questions, unless they prefer to submit their briefs/notes from their class reading prior to class. Non-educative nudges might also limit the options available to students, for example by requiring students to select and respond to a set of practice questions from a list of possible questions.
Nudges have been criticized as “local” and “short-term” fixes to choice architecture.16 They tend to be local because the interventions have a very close relationship to students’ decision landscape. They may be short-termed because once the nudge is removed, students may not continue to exhibit the desired behavior. Other critics note that nudges assume students’ decision-making skills are fixed or, at a minimum, too costly to change, and nudges may not allow students to learn from their mistakes.17 Others are concerned that nudges are rooted in a paternalistic assumption that the educators know best what students need to do to experience academic success.
Nudges have been used and studied at all levels, with most empirical work happening at the undergraduate level. Results have been mixed. The most effective nudges are those that impact yes/no single point in time decisions, such as whether to complete a FAFSA form, seek financial aid, or apply to a particular type of school.18 In the context of academic support interventions, nudges, including reminders, online academic coaching, online coaching with intensive follow-up communications via text, and in-person regular meetings with coaches, have not significantly impacted students’ academic performance, though they have favorably impacted students’ sense of subjective well-being and the extent to which students believe the university cares for the student.19
In response to the critique of nudges, some scholars argue that boosts may be a more effective intervention.20 Boosts target students’ decision-making competencies and empower students by equipping them with the knowledge and skills they need to make more desirable decisions. Nudges, in contrast, steer students toward desired behaviors.21
Boosts are classified as short-term or long-term.22 Short-term boosts develop competencies that are limited to a particular context.23 For example, a professor might offer students insight into best practices for learning a particular topic and why those practices are important. Short-term boosts overlap with educative nudges because both provide information designed to impact choice. Long-term boosts, theoretically, permanently change students’ decision-making because they add a new decision-making competence or enhance an existing one.24 Long-term boost examples include (1) teaching students about the science of brain health and the importance of taking “brain breaks” while studying and (2) the importance of engaging in mindfulness practices, especially as high-stakes exams approach. Boosts are a relatively new choice architecture tool. They have not been well-studied in education.
Who will be the source of the intervention?
For this phase of the project, I am working with two 1L property professors. Several weeks ago, I administered a survey designed to capture a baseline level of practice question engagement in both property sections. In consultation with the faculty, we have identified 2 nudges and 2 boosts that we plan to use in one of the professor’s classes. At the end of the semester, I will administer the survey again, and perhaps find that the students in the section where the interventions occurred engaged in as many (or more) practice questions as they’d planned to at the start of the semester. The nudges include: (1) the professor will eliminate reading pages/topic coverage from the syllabus and instead require students to spend the time they would have spent reading for class engaging with practice questions, telling the students that he has done so because he believes that the students should prioritize practice question engagement; and (2) as the practice question assignments draw near, the professor will remind students to complete the questions and emphasize their importance to the students’ learning. The boosts will be two brief video presentations. One video will explain the impact of a growth mindset on studying and the importance of cultivating and maintaining a sense of belonging. The other will include testimonials of upper-level students explaining, from a growth-mindset perspective, why they engaged in practice questions, how they modified their study practices to regularly include practice questions, and how doing so (regardless of how they performed on the questions) helped them feel less like imposters and more like they belonged in the law school classroom.
Stay tuned for the results of my project. In the meantime, consider drawing up a choice architecture project of your own and share it with me; I’d love to hear about it.
1 Jennifer M. Cooper & Regan A.R. Gurung, Smarter Law Study Habits: An Empirical Analysis of Law Learning Strategies and Relationship with Law GPA, 62 St. Louis U. L. J. 361, 388 (2018); Louis N. Schulze, Jr., Using Science to Build Better Learners: One School’s Successful Efforts to Raise its Bar Passage Rates in an Era of Decline, 68 J. Legal Educ. 230, 232-33 (2019).
2 See, e.g., Philip Oreopoulos, Promises and Limitations of Nudging in Education, IZA Inst. of Lab. Econ. Discussion Paper Series Number 13718 (Sep. 2020) (curating and summarizing recent studies).
3 Saugato Datta & Sendhil Mullainathan, Behavioral Design: A New Approach to Development Policy, CGD Pol’y Paper 016, Washington D.C. Ctr. for Global Dev. (2012); Robert Muncher, Max Vetter, & Thomas Scheuerle, A Review and Taxonomy of Choice Architecture Techniques, 29 J. Behav. Dec. Making, 511, 512-13 (2016).
4 Survey on file with the author. Feel free to request a copy, if you wish.
5 Pauline H. Tesler, Goodbye Homo Economicus: Cognitive Dissonance, Brain Science, and Highly Effective Practice, 38 Hofstra L. Rev. 635, 639 (2009).
6 Ralph Hertwig & Till Grune-Yanoff, Nudging and Boosting: Steering or Empowering Good Decisions, 12(6) Persp. on Psychol. Sci. 973, 973 (2017).
7 Id. at 977.
8 Id. at 976.
9 Cass R. Sunstein, People Prefer System 2 Nudges (Kind of), 66 Duke L. J. 121, 129 (2016) (defining educative nudges and linking them to system 2 thinking).
10 Hertwig & Grune-Yanoff, supra note 7, at 977; Muncher, Vetter, & Scheuerle, supra n. 4, at 514-15.
11 Muncher, Vetter, & Scheuerle, supra note 4, at 514-15.
12 Hertwig & Grune-Yanoff, supra note 7, at 977; Muncher, Vetter, & Scheuerle, supra note 4, at 519.
13 Hertwig & Grune-Yanoff, supra note 7, at 977.
14 Id.; Muncher, Vetter, & Scheuerle, supra note 4, at 516.
15 Muncher, Vetter, & Scheuerle, supra note 4, at 516.
16 Peter H. Huang, Boost: Improving Mindfulness, Thinking, and Diversity, 10 Wm. & Mary Bus. L. Rev. 139, 150-51 (2018).
17 Id. at 155-56.
18 Oreopoulos, supra note 3, at 3-4.
19 Philip Oreopoulos & Uros Petronijevic, The Remarkable Unresponsiveness of College Students to Nudging and What we Can Learn From It, Nat’l Bureau of Econ. Res. Working Paper 26059 at 5-6 (2019).
20 Huang, supra note 17, at 143; Hertwig & Grune-Yanoff, supra note 7, at 974.
21 Huang, supra note 17, at 164.
22 Hertwig & Grune-Yanoff, supra note 7, at 977.