GAMES FOR QUXZZING RECALL IN BUSINESS LAW COURSES

Debra Burke, Professor Mary h e Nixon, Associate Professor

Developing students’ critical thinking skills is a desirable goal for business law educators.’ Both deductive and inductive reasoning are utilized in examining court cases in a business law class? Students h t learn about a theoretical concept, such as consideration, by a defigitional explanation of the principle. For example, a case such as Humr u. Sidway3 may be assigned iu order to evaluate the legal parameters of consideration. In examining the court’s conclusion that a contract existed, students would be asked to ascertain why the nephew‘s conduct, which in a practical sense was beneficial, constituted a legal detriment. Gradually, through an examination of the decision and the reasons for it, students learn that consideration consists of either doing or promising to do an act that one is not legally required to

See generally Nancy Kubasek & M. Neil Brome, Integrating Critical Thinking into the Legal Environment of Business Chssroom, 14 J. LEGAL STUD. EDUC. 35 (1996) (discussing a method for integrating critical thinking into the legal environment classroom which focuses on cases); M. Neil Brome & Daniel R. Hansen, The Hasty Embrace of Crificd Thinking by Business Law Educators, 9 J. LEGAL STUD. EDUC. 515 (1991) (questioning the assumption that encouraging the appreciation of legal reasoning is tantamount to the development of critical thinking) .

Andrea Giampetro-Meyer & Nancy Kubasek, A Test of Critical Thinking Skills for Business Law and Legal Enuironment Studies, 9 J . Legal Stud. Educ. 501,504 (1991).

124 N.Y. 538,27 N.E. 256 (1891). In that case an uncIe promised his nephew $5,000 if he would refrain from swearing, drinking, gambling, and using tobacco until he was twenty-one years of age. The nephew refrained from these activities, which were legal at the time, for the requisite period. However, the executor of the uncle’s estate refused to perform the promise to pay, cIaiming that it was not supported by consideration.

308 i Vol. 15 i The Journal of Legal Studies Education

perform, or forbearing from engaging in an activity that one legally is free to do.

Deductive reasoning is employed as students are asked to examine rekospectively the decision of the court and its historical justifications. Inductive reasoning is then used to solidify the learning process through the presentation of a different hypothetical case which may be based upon an actual court case not assigned previously? In this manner students are asked to evaluate the situation using inductive reasoning, the same reasoning initially employed by the court in the example case. As one can ascertain, this pedagogical approach to learning the law

reinforces the concept of critical thinking. Students learn the law by reading and analyzing legal cases to determine the rule of law, as well as the reasoning behind the decision. "hose legal principles then may be applied to other cases. The higher-level mitical thinking skills of the cognitive domain, specifically those of analysis and synthesis are emphasized? Analysis is the ability to break down material into its component parts so that the ideas contained therein are made clear and the relationships between the ideas made explicit. Synthesis is the ability to put discrete parts together in order to form a new aggregate. The deductive reasoning process previously described inherently involves analysis. Students break down component parts of the case, identify separate issues of law, and analyze the relationship between these issues. Inductive reasoning, or the synthesis of the information contained in the conclusions deduced, then is used. Students apply the law to new areas within the same field, to new fact patterns in similar cases, or t o similar cases with varying fact patterns.

' For example, a scenario may be posited which suggests that the president of a company, Widgets, Inc., promised Ernie Employee a $10,000 bonus if he would take an early retirement. Students would then be required to determine, based upon the principles gleaned &om the preceding case, whether or not the promised $10,000 ia an unenforceable g i f t promise or a contractual obligation, and to justify their conclusion as well. ' Critical tbinkjng skills can be divided into six catemes rangingfiom the lower level skills of knowledge and comprehension, to the higher levels associated with application, analysis, synthesis, and evaluation. See g e n e d y B. BIDOM TAxoNoMy OF EDUCATIONAL OBJECTIVES !#iE CLASSIFICATION OF EDUCATIONAL GOALS (HANDBOOK k COGNITIVE DO-) (1956). See aLso M. Francis Reeves, Bloom's Global Pedagogical Goals, Business Ethics, and the Legal Environment of Business, 9 J. LEoAt m. EDUC. 176 (1991) (discussing Bloom's taxonomy and its application to teaching business ethics).

1997 f Quizzing Recall I 309

ANALYSIS SYNTHESIS

REASONING

DEDUCTIVE INDUCTIVE

This teaching method, like the law itself, is characterized by fluidity, flexibility, and the ability t o respond to our changing world. For example, the scientific community, by providing alternate means of reproduction, commensurately poses new legal dilemmas. Are surrogacy contracts legal? In evaluating such a new issue students must identify the appropriate or analogous precedent, delineate the facts of the surrogacy case, and apply the old precedent t o the new situation.

The practice of applying principles in any discipline, be it management, writing, or law, engages students in that discipline much more than any lecture format? Research suggests that such teaching is more effective than lecturing because it has a significant impact on the students' motivation, and some impact on learning.' This method, like business case teaching, redefines the meaning of learning from the recall of content to the process or use of ideas to solve problems? While business law professors cannot forget the dual purposes of a law case, to serve as both an illustration of the law and a starting point for analysis, students, nevertheless, learn from experience and learn experiences. Through the use of cases and hypotheticals, students become intricately involved in a process of active learning.

Analyze Factual Settings Cope with Ambiguity

Transmit Ideas Through Discussion Integrate Theorywith Reality Verify Critical Thinking Skills LEARiWNG!

' Douglas M. Catron, A Case'fir Cases, kI3.C.A BULL., March 198q at 21. ' See Franz Bocker, Is Case Teaching More Efictive than Lecture Teaching in Business Admhktratbn? An Ezpbratou AnnZysis, INTERFACES SeptMct. 1987, at 68 (discussing case method teaching). ' Richard F. Elmore, Cumculum and Case Notes, 18 J. POL. ANALYSIS & MGMT. 175 (1989).

310 1 Vol. 15 1 The Jouml of Legal Studies Education

Nevertheless, before higher order skills such as problem solving can be utilized, certain definitional concepts must be mastered. Learning facts and definitions engages the lower levels of cognitive domain, those of knowledge and comprehension? Knowledge is defined as "behaviors and test situations which emphasize remembering, either by recognition or recall, of ideas, material, or phenomena."" It also may involve the recall of trends and sequences, methods and processes, principles and theories, and patterns o r structures.1' Teaching at a knowledge level involves "the recall of a wide range of material &om specific facts to complete theories, but all that is required is the bringing to mind of the appropriate Comprehension is the ability to appropriate information.ls

Before higher levels of the cognitive domain can be exercised using analysis and synthesis, certain facts and definitions must be mastered through knowledge and comprehension. For example, in legal cases a working knowledge of the court system and the vocabulary used in court opinions is necessary. Students should be able to master such terminology on their own. However, in concentrating on the higher critical thinking skills, professors can be unpleasantIy surprised t o discover that a rudimentary working vocabulary has not been acquired and is a source of confusion for students.

Games which test concept mastery represent a fun way for students to internalize definitions which are needed for the more in-depth analysis and synthesis required for higher order critical thinking.14 Games are also a valuable way of verifying that learning has occurred.'s A game format not only brings an element of fun t o the learning process, but it appeals as well to the competitive instincts of students.I6

See J. David Reitzel, Critical !l'hinking and the Business Law Curriculum. 9 J. LEGAL STVD. EDUC. 471,474478 (1991) (discussing J. DEWEY, HOW WE l"K (1933).

lo Bloom, supra note 6. at 62. Further, at higher levels, remembering is only one part of a more complex process

rs NORMANE. GRONLUND, STATINGO~CTNESFORCLASSROOM WSTRUCI'ION 36 (1978). I' Id at 90. I' Of course some instructional games, such as those involving strategy, can engage

higher order skills. See A New perspective on business games, PERSONNEL MGMT., June 1988, at 61 (discussing business simuIation games).

l5 As such, games are an excellent activity to use in reviewing information prior to a test. For an example of such an exercise see Ida M. Jones, Final Pursuit, 7 J. LEGAL STUD. EDUC. 73 (1988-89).

l6 See, eg., Julianna Nelson, The Market Ethic M a d Dilemmas and Microeconomics, 11 J. BUS. ETHICS 317 (1992) (describing the organization of a classroom game based on business ethics which uses brief cases written as multiple choice questions); Darcy E. Hitchock, Brtikling Instructional Games, TRAINING, Mar. 1988, at 34-39 (discussing how to create and develop instructional games to enhance the learning process).

of relating, judging, and reorganizing that which is remembered. Id

1997 1 Quizzing Recall I311

The authors have adapted two well-known games, BINGO! and JEOPARDY!" for use in legal studies classes which quiz students on the definitions they subsequently will be asked to apply." While this approach should not be used routinely because the process can be time- consuming and is not designed to develop higher order skills, it can be used as valuable and interesting diversion.

JEOPARDY! A replica of the jeopardy board should be placed on the blackboard or

on an overhead projector screen, so it can be erased as the game progresses.'g As the students select their question, the instructor must erase the appropriate square. The instructor can read the question from a photocopy of the actual boards and cross the questions out as they are asked. One square may be pre-selected t o be the Daily Double. If chosen, the student group may bet the desired number of points and need not compete with the other groups for the answer t o that question. Students should be divided into four groups of no more than four students. For larger classes, the boards may be split into two parts and/or more games played. A nonparticipating student should assist each team in keeping track of their points, and one student umpire should assist the instructor in determining which group rang their call bell first. For the final jeopardy question the teams should be allowed to bet the number of points desired, not t o exceed the total number of points they earned during the game. The instructor can play a recorded tape of the final jeopardy tune &om the actual television game show to time the groups' response, or alternatively allow them about one minute. A face-off iird jeopardy can be played for the winners of all the games with test bonus points awarded to the wimer(s) based on their finishing place. All answers, of course, must be phrased in the form of a question throughout the game. Sample gameboards are included in Appendix 2.

BINGO! The instructor should distribute to students a BINGO type card with

twenty-five squares?' Students are then asked t o fill out the squares in ink with numbers ranging from one t o thirty, one number per square.

I' The inspiration for these games came from an article, Pktying Games Spices up l'kaining Reuiew Sesswns, " m G , Dec. 1993, at 15-16. The idea was modified and adapted to Iegal environment classes. '' If a particularly lengthy or complex court case is to be analyzed in depth, these

games can also be used to quiz the students' knowledge of the pertinent facts. Mastering facts, like definitions, involves the lower levels of the cognitive domain which these games are designed to validate.

See Appendix 1 for a model. See Appendix 3, BINGO BOARD.

312 1 Vol. 15 1 The Journal of Legal Studies Education

"Lucky numbers" can be used more than once, but not more than three times?' The instructor then draws from a hat slips of paper with numbers from one to thirty each wit31 a dest ion. The instructor calls out the number and reads the definition. If a student has a number on his or her card, the student records in the square the word being definedF2 The first student who fills five squares in a straight line (like tic-tac-toe) wins, subject to verification of the correctness of the words recorded. Ifthe instructor wishes to continue the exercise after the first person wins, simply ask winners to turn in their cards after they believe they have the appropriate responses. Do not verify the correctness of the words in &ont of the other players. Winners can be awarded extra points on tests.

Alternatively, if cheating is a concern the professor could distribute cards with pre-

See Appendix 4 for a List of words and definitions which could be used in a WiuS and selected numbers.

Estates" unit.

1997 1 Quizzing Recall / 313

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314 I Vol. 15 J The Journal ofLegal Studies Education

Where opinions Jurisdiction which from Ihc US Supreme Counm hearcaws betwen published citizens of two

allows courts to

Appendix 2: LAW GAMES

A. INTRODUCTION TO LAW

Principle: "Do not Name for a National disturb what is decision which is organization which s d c d " the firn trains pcnons IO

announcement of a arbitrate &certifies

coun decisions M published

I differentstates I I rulcoftarv I itsmembers W h c ~ federal ha! I Amount which I Term used to I Laws passcd by a I ADR wherein

must be in mnmvmy before a federal cow can hear a case between citizcns of

describe the jury sclcction process

legisldive body at panics tuch a the state or federal mutually agreeable level molurion through

facilitation

I Iwostates I I I Whneopinions I Federal court I Writ by which the I The law I Act D& by

US. Rcpons (or Lawyers Edition or

trom thcfederai circuit c o w s of appeal M publiihcd The name of a case & volume & page number wheq a decision is nportcd

Amen-can Compmmirc Diversity of S t m dccbis Precedent Jurisdiction Arbirratmn

To research a case to determine i f i t has been followed. cited or overruled

RipOKCr)

Fcderal Supplement Federal Reporter

jurisdiction which may raise constitutional

judges who generally hear an appcal at the

possessed by rrial coum & by the U.S. s u p m e Court wirh respect to cases involving

575,000 Voir Dirc staturcs Medialion

Federal Qucstion Certiorari Common Law Federal Arbitration

I S U p ~ C C W t I exercises jurisdiction

Deeision reached by all judges of a fedcral circuit COUR of appeals

When lawycrs work for h e

determined by Co&es in I925 cow which mecs to cncouagc rbe it origin to England use of arbination

The supnme law Private procading of the land subject rrrtmblimg a Vial (0 interpretation by which usually WUK involve C O Q O ~ ~ C

Law anributable to administrative which an agencies abbreviakd

decision makm Type of ADR in

presentation is conducted before a summoned jury

I I I FMAL JEOPARDY "BIRTH CERTIFICATE": The article of the Constitution in which vested in the Supreme Court and lower courts as Congress may establish.

The Decision Please

Dtcisiin reached when a dispute has been mediated suaarfully

Opinion wimn by ajudgc who disagrees wirh the decision of rbe majority

Decision wriacn by a judge who a m w i t h t h e majority. but for different masons W i o n made by an arbitrator

Docvine which gives courts the power to w i e w acts of legidativc bodies

udicial power is

I Jurisdiction I I I Act Citation I Three I EnBanc I h t i t u t i o n I MiniTrial Sheppardizc I Original I PmBono I Adminislralivc I Summay Jury

I I I ~cgu~at ionz Trial I FINAL JEOPARDY: Article III

1997 I Quizzing Recall / 315

Judgment Compensalory

me b u l l The decision of a

Ewninafion Cross Examination Complaint Slander Probable C a w Comparative Evidence summoru FalSC Arraignment NcgIigent

The oKicial decision by judge in a lawsuit tried without a jury

Actual measurable damages sufTcrcd by an individual as a rault of 8 wmni$itl act Damages imposed as punishment for intentionally commitring a wrongful act A corn order mquating a wmngdoa to stop d o i n g a d n u t

Imprisonment

- FINAL JEOPAI foreseeable

Infliction of

B. LEGAL PROCESS AND OTHER CONCEPTS

Intalcional The Trial Civil Proccdun Tom

afterthccfoscofa activities

jury's verdict of a lawsuit the pcnonal

DY: "IT'S YOUR FAULT': Requirement of a neglii

Criminal Law Negligence

custody the negligence of the injured party led to the injury

refafer the The cca%Onahle The dcfcnse which belief that a crime has been ntgligcncc of the committed injured pany to the

negligence of the Puson beinRsucd

The act of charging Mental suffering a person with a m l a s l y caused crime & asking for by another's that puson's plea u ~ m m c outrageous

The formal, written accusation by a grand jury that a cutain person committed a crime A k W n statmcnt by a dha attorney charging that a Person committed

behavior The violation o f a statute which establishes a standard of farc

h i n for %e thing speaks for irsclf" which allow an inference of nedinence - -

aminorcrime I nce case which requires harm to be

WHAT IS. . * 7 (ANSWERS) f Verdict Plaintiff Libel I -red I Convibutow

I 1 Mental Disrroz Punitive Invarion of Privacy Indictment Negligence Per Se lniunction I mov I DirEDvcry Conversion Information FINAL JEOPARDY Proximate Cause

1997 I Quizzing Recall 1317

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318 / Vol. 15 / The Jourml of Legal Studies Education

Appendix 4

WILLS & ESTATES

Testate Distribution - The distribution that is made when the decedent leaves a

Testator - The name of a man who makes a will LegacyBequest - A gift of personal property Devisee - Beneficiary of real property under a will Testamentary Intent - Desire to make a provision that will be effective only upon

Attestation - Act of witnessing the execution of a will Holographic Will - Last testament that is written by a testatrix entirely by hand Publication - The act of the testator of informing the attesting witness that the

document which is signed before them is the testator’s will Codicil - Separate writing that amends a will Nuncupative - Oral will made & declared by the testator in the presence of

Disinheritance - Act of excluding a person or persons from an estate General Legacies - Bequests of certain sums of unspecified money Specific Legacies - Bequests of identified property Adeemed - Specifically bequeathed property which is sold or given away by the

Antilapse Statutes - Laws which provide that the heirs of deceased beneficiary may

Lineals - Blood descendants of the decedent Right of Escheat - Right of the state to take property which has not been distributed Collateral Heirs - Persons who are not descendants of the decedent but who are

related through a common ancestor Per Capita Distribution - Distribution of estate where all distributees stand in the

same degree of relationship with each receiving the same share Distribution Per Stirpes - When distributees stand in different degrees of

relationship & distribution is made in as many equal parts as there are family lines

valid will

death

witnesses

testator prior to death

take the legacy in place of the deceased’s beneficiary

Executrix - A woman named in a will to administer the estate of a decedent Letters Testamentary - A court grants these in the appointment of an executor or

Letters of Administration - A court grants these in appointing a personal

Administrator Pendente Lite - Temporary administrator who serves during the

Surcharge - Order imposing liability for misconduct of an executor if a failure to

Settlor - Owner of the property who creates a trust

executrix

representative for a person who died without a will

litigation of a contested will for the purpose of preserving the estate

act causes loss to the estate

1997 I Quizzing Recall I319

Deed of trust - Written instrument creating a trust Trustee - Manager of a trust estate Inter Vivos Trust - Name of trust created to take effect within the lifetime of the.

Spendthrift Trust - Restricted trust whereby the beneficiary cannot assign, nor settlor

creditors reach, the interest