Not Your Mother's Discussion Board: Creating Engaging Discussion Boards in the Introductory Business Law Course

I. Introduction

Discussion boards have been around for more than two decades.1 They are a feature of most learning management systems (LMS)2 and are one of the earliest tools used in fully online classes, particularly for asynchronous classes. Although the prevalence of online instruction has grown exponentially,3 until the COVID-19 pandemic, which forced most higher education institutions to transition to online mode,4 many instructors had little experience with online courses. I was fortunate to have taught business law courses online prior to the spring 2020 semester and was able to use my experience when all my classes went online.5 The goal of this article is to provide guidance to instructors in using discussion boards to create an engaging and inclusive learning environment in their introductory business law courses and to share examples from my experience. Properly used, discussion boards can enhance student engagement and learning in both asynchronous and synchronous modes of teaching. The suggestions presented here demonstrate how discussion board exercises can be created for a variety of topics. Such exercises are scalable so that instructors can use them as a primary learning component or as one of a number of components.

Part II of this article discusses some of the benefits of using discussion boards. Part III presents some observations from the literature and from my own experience as to best practices for discussion boards and how discussion boards might be used in the online business law classroom. Part IV presents some specific examples of discussion boards I have used in my own classes.

II. Benefits of Using Discussion Boards

Discussion boards have come a long way from their initial conception as little more than bulletin or message boards where instructors and students might post and share information.6 Web 2.07 and other technological advances have made it possible for instructors to create dynamic and inclusive learning environments outside of the physical classroom. In this learning environment, students can independently explore the course materials and related topics while interacting with their instructor and each other.

Online teaching is most effective when the instructor is able to build a community of learners, particularly because students learning remotely may feel a sense of isolation and lack of connection with other students.8 There is agreement in the literature that discussion boards can help to accomplish this important objective.9 In Part IIIE.1, I present some suggestions about how discussion boards may be used specifically for community building at the beginning of the course. However, any discussion board has the potential to build community, as it will promote student interaction to some degree.

In undergraduate business law classes in particular, discussion boards can help facilitate learning outcomes that are likely among those of any business law course. These outcomes include the development of effective communication skills, critical thinking, and an understanding of basic legal terminology.10

For instance, discussion boards have the potential to combine the best aspects of face-to-face discussions and written assignments.11 To some extent, discussion board posts may have benefits even beyond an in-class discussion. For instance, discussion boards give students the time and the ability to reflect on what they wish to say, which they might not have in a classroom discussion.12 “[L]onger wait time between the student answers and the instructor's questions is related to greater student performance,” and such wait time is an inherent feature of an asynchronous discussion board.13 Students also have the ability to consult other sources to inform their contributions and enhance their critical thinking skills.14

Moreover, a discussion board can be a low-stakes writing assignment that gives students the opportunity to improve written communication skills.15 Knowing that not only the instructor but the entire class may read a student's post should provide additional incentive for the post to be well written.

Discussion boards can also be used to make online classes more inclusive by providing a platform for all voices to be “heard” and to amplify the voices of those who might not be heard in the face-to-face classroom.16 For instance, in my own teaching experience, a large proportion of my students have been non-native English speakers. Uncertain about their grasp of the language and often because of cultural factors, many of these students are shy about speaking in a face-to-face class. As others have found, that reticence may disappear in a discussion board.17 Even some native English speakers in my classes are hesitant about speaking in class or expressing an opinion, leaving the floor open for a few students to dominate the discussion. However, in an asynchronous discussion, introverted students may be more comfortable and willing to participate.18 Discussion boards also provide an opportunity to incorporate diversity into the curriculum. Well-constructed discussion boards can provide a platform where student contributions and perspectives can be recognized and treated with equal value.

Finally, as demonstrated in a 2014 article by Lucas Loafman and Barbara Altman,19 discussion boards can help an instructor in creating a course that meets Quality Matters Standards20 (“QM Standards”). For instance, QM Standards 1.7 and 1.8 reflect the importance of an instructor introduction (1.7) and of having the students introduce themselves (1.8). Discussion boards can be used to accomplish both of those aims.21 Similarly, discussion boards can be used as learning activities that promote both student–instructor and student–student interactions as required by QM Standard 5.2.22 Other QM Standards, such as making assessment criteria clear,23 are key in successfully designing discussion boards.

III. Promoting Successful Discussion Board Experiences

For many undergraduate business law students, an introductory business law course is their first foray into law. Some students may equate the challenges associated with learning complex legal topics and terminology with learning a foreign language.24 Similar to learning a new language, learning the law requires engagement in listening, speaking, reading, and writing. Using discussion boards provides an opportunity for all students to learn to speak the language of law.

A discussion board exercise generally begins with a “prompt,” that is, something to which students are asked to respond. There are a variety of models for the nature of the prompt and the expectations regarding student responses. Although the prompt may be provided by the instructor, some instructors assign student “facilitators” who are responsible for creating the prompt and responding to the responses of other students.25 In my classes, I create the prompts. I use discussion boards as one of the learning activities for a topic and each prompt involves a discrete topic or topics. In some courses, instructors use discussion boards for ongoing extended exploration of particular topics.26 For an introductory business law course, this is usually not feasible because of the number of topics covered over the course of the semester.27

For each exercise, my approach is to require students to respond to the prompt and then to respond to the post of at least one of their classmates.28 Research suggests that restricting students’ access to the initial posts of other students, until they have made their own posts, tends to lead to a better quality of initial posts from students.29 That is the procedure I follow by staggering the due dates for the initial post and response post.

In another model, instructors report success using a “3R” format. In that model, over the course of a week, students were required to respond to an instructor-created post, react to the posts of other students and reply to students who reacted to their posts.30 The study found higher levels of participation and engagement when contrasted with what was termed an “open-ended” discussion board.31 In the open-ended model, students were told to respond to the post, “discuss with classmates and wrap up the discussion” by the end of the week.32

Discussion boards can also be used within smaller groups of students, with or without bringing the results of group discussions to the larger group. They may also be used as a significant or even primary learning component for a topic. In her comprehensive article dealing with instructor presence in online courses, Ida M. Jones provided excellent examples of how this might be done.33 In a one-unit asynchronous undergraduate course, students were given online readings and a list of questions. The students were divided into groups, and each group used its discussion board to develop group answers to the questions.34 Subsequent to these exercises, each student took a quiz, comprised of a random selection of the questions that were previously posed to the class groups and had to submit the group answer.35 The student's grade on the quiz was based largely on their contributions to developing the group answers and their grade in the course was entirely based on their quiz grades.36 Students were then asked to engage in an asynchronous discussion with the whole class, with questions suggested by the instructor.37

In a graduate course or similarly designed undergraduate course, discussion boards can play an important but somewhat less significant role if the course includes some synchronous discussions as well as other written assignments.38 In the model used by Ida M. Jones, students were given a brief introduction to the topic, a list of readings, and a description of the tasks to be performed for the topic.39 Students were then required to create a document, using the group discussion board, which responded to questions or a scenario.40 The final documents were then posted for the whole class to review on the class discussion board.41

In another study, the instructors experimented with two hybrid business organizations courses using both the conventional discussion board model and what they termed a “suspense model to facilitate two discussion board exercises in each course.”42 In the suspense model, rather than giving students all information about the scenario at the outset, for one assignment, the groups received information over time “in a manner that more closely mimics how information is typically received outside the more artificial setting of a classroom environment.”43 All discussions took place asynchronously within the group discussion board.44 Interestingly, although the quantity of student participation was greater with the suspense model, the quality of the postings appeared to be better in the conventional model.45

Giving students clear guidelines about what is expected is essential.46 Students should be provided with rules and rubrics in advance that clearly express instructor expectations.47 Examples of rubrics can be found online with a simple Google search and also in the literature48 but should be tailored for the particular class. That is, the instructor should determine what categories they wish to evaluate and then determine the criteria for each category. For instance, in one study, in order to develop a rubric, a group of instructors in a program first determined the categories for evaluation, such as content of the initial post and the response, frequency of responses, clarity and mechanics.49 They then determined the criteria for which a post would be considered excellent, proficient, marginal, or unacceptable in each category and the point allocation.50

This is not truly a rubric but provides clear guidelines about what is expected and can be a useful model for students in giving more than a perfunctory response to the posts of their classmates. Of course, a traditional rubric can be designed to illustrate how well the student meets each of the criteria in this model.

My own “rubric” differs from a more conventional rubric because it provides the maximum points available for each group of criteria rather than giving performance levels.55 In addition, the criteria are expressed as questions rather than declaratory sentences. Over time, I have found that this type of “rubric” has been the most useful for students in understanding my expectations because it gives them evaluative questions to ask themselves as they review their responses and replies. In addition to the rubric and information in the syllabus, I provide students with examples and links to articles regarding creating strong initial posts and responses to their classmates.56

I grade students based on the “rubric,” which I provide to them at the beginning of the course. Students are advised that the point value assigned to the initial post is primarily based on their ability to take and support a position in response to the prompt. A student's grade on the response post to a classmate is based on the degree to which the student brings something additional to the exchange. Simply expressing agreement in the response post is not sufficient.

More specifically, for the initial post, I allocate points toward the following factors: (i) cohesiveness of the argument,57 (ii) utilization of logical reasoning and evidence (cites to text and/or outside sources), and (iii) whether the post was submitted on time and is eight to twelve sentences in length with no spelling or grammatical errors.58 For the response post, I consider: (i) responsiveness of the post to the classmate's post, (ii) whether the response post introduces new ideas, poses thoughtful questions or provides an opposing opinion that moves the conversation forward, and (iii) whether the post was submitted on time and is eight to twelve sentences in length with no spelling or grammatical errors. The discussion board grade comprises 60% for the initial post and 40% for the response post. Therefore, a student completing only one portion of the assignment cannot receive a passing score, emphasizing the importance of engagement.59

It is important for instructors to modulate their participation in the discussion boards. Studies have shown that participation has a direct impact on student engagement and performance.62 Instructor “presence,” including grading of discussion board posts, tends to increase student participation.63 One study suggests that students may more freely express their thoughts and opinions in responding to other students when the instructor does not initially respond to each post.64 As a rule, I do not provide feedback on the initial posts of my students until after they have provided a response to at least one of their classmates. Many of the LMSs, such as Blackboard®, allow you to set the parameters as to when the required discussion board posts are complete and ready to be commented on and graded by the instructor.65

My students want timely grading and meaningful feedback in response to their posts, especially at the beginning of the course when they are still gauging class expectations. My feedback to students informs them of any deficiencies they may have had in meeting the requirements of the rubric. I also take on the role of devil's advocate and provide comments meant to encourage exploration of aspects of the legal issue that they may not have considered or may be divergent from their own position. Students will frequently respond to my comments, although they are not required to do so.

I do not limit myself to using only the features of the discussion board provided through the institutional LMS. There are a number of other collaborative learning tools that can be integrated into the LMS or used outside of the LMS. VoiceThread®, FlipGrid®, and Discord®66 are applications that can be used to facilitate asynchronous class discussions. One feature that distinguishes these applications is that they offer students the ability to communicate, collaborate, and comment by video or voice, in addition to text, increasing the possibilities for online student engagement. Moreover, viewing and uploading videos and PowerPoint® slides to a digital LMS platform may often be a slow process because the data are stored on the institution's server. By contrast, VoiceThread®, FlipGrid®, and Discord® are all cloud-based applications, which can reduce problems of speed.67 Hypothes.is® is another wonderful tool for the business law online classroom. The tool allows students to collaboratively annotate legal cases and other documents.

In several years of experience crafting discussion boards, I have discovered that “the prompt's the thing.”69 The nature of the prompt is critical to student interest, participation, and the quality of student posts.70 Discussion board questions that do not necessarily have a “right” answer and require students to create arguments to support their positions are more likely to result in higher-order thinking.71 This type of prompt, of course, is the meat and potatoes of a law course. Open-ended prompts may also make students more willing to contribute their perspectives to discussion boards by eliminating the fear of negative feedback for getting the wrong answer as a barrier to participation.72

Given the importance of building a sense of community in online classes,73 this is an important aspect of my discussion boards. For me, this process begins with class introductions.74 Providing a platform where I can meet my students and have them learn a little bit about me and each other at the beginning of the course has helped us to make connections and recognize commonalities.

I utilize VoiceThread® for a discussion board to facilitate student introductions. In the “Welcome to the Class” component, students are instructed to view my introduction, to post videos of themselves and then to respond to at least two of their classmates using either the text, voice or video feature. In their introduction, students are asked to include answers to a series of questions—their names, majors, where they grew up, and one word that best describes them and why. After students have submitted their introductions, I respond to each of the students, commenting on something from their videos and welcoming them to the class. The exercise sets the tone for the semester as it is their first interaction with me and with the other students in the class. In my synchronous online courses, I find the introductions to be a helpful way to remember students’ names, as I am able to connect each name with a personal fact. In asynchronous courses, this initial interaction is critical, as it is the first, and in some cases the only, opportunity for students to see each other.75

In addition to facilitating student introductions, I utilize discussion boards to encourage community engagement in other ways. In fully face-to-face classes, interactions often take place organically between instructors and students and among students before and after class. However, students often have questions that they meant to ask during class or that arise when they are engaging with the material independently. Students also sometimes seek help from other students. To capture these questions and ensure the questions are answered, I set up a Question and Answer (“Q&A”) discussion board on which students can pose questions to the instructor about the course and assignments. To my surprise, students have used that board to voluntarily answer the questions of their classmates. It has provided an unexpected avenue for peer interaction, collaboration, and support. The Q&A discussion board has the added benefit of providing answers to students who may have had the same question. Students are advised that private matters should be directly addressed to me through email. I explain that I will respond to emails and posts within twenty-four to forty-eight hours.

In face-to-face classes, students are able to connect and exchange contact information. Doing so is more of a challenge in the online environment. I create a “Virtual Buddies” discussion board, where students are invited to exchange contact information that they are comfortable sharing and the days and times that they are available to receive contact with other classmates. The LMS also allows students to create and participate in group chats where they can discuss class assignments and other topics relevant to the course. Many students also decide to create private group chats through their text messaging services, such as WeChat and Slack. The opportunity to connect with other students is particularly important in my online asynchronous classes, since students do not have the same opportunities for engagement as they would have in face-to-face learning environments.

In choosing my discussion board topics, I consider how I can engage my students to think beyond the typical hypotheticals and cases presented in the text. By drawing on examples at the outer limits of the law, students are challenged to apply legal principles to fact patterns that do not fit neatly into the law. For example, in the self-driving car and monkey selfie discussion boards, discussed below,81 students are asked to stretch beyond the parameters of the law. In my experience, these types of open prompts spur critical thinking and reasoning among students—the basis of what is often referred to as thinking like a lawyer.

The Socratic method is often utilized in law school to train students to engage with the material, ask questions, think critically, and reach their own conclusions.82 Matt Hlinak demonstrated how the Socratic method could be used in an online discussion board in an undergraduate legal studies class.83 In one example presented, he had students read two articles and post on whether Justice Elena Kagan should have recused herself from consideration of the Patient Protection and Affordable Care Act of 2010, given her role in the Obama administration.84 After students made their initial responses, he posed challenges to the conclusion that most students had reached.85 He found that in response, students “conduct[ed] research and marshal[led] arguments in support of their positions,”86 a good example of one of the benefits of asynchronous discussion.

IV. Examples of Discussion Boards in the Business Law Classroom

My discussion board prompt, “Is the Coronavirus Making Your Business Sick,” was designed to have students examine the contract law implications of “force majeure” clauses during the COVID-19 pandemic.88 It was given as an assignment in the module covering contract performance, breach, and discharge.89 The beginning of the prompt shows a picture of the earth in a surgical mask, coughing. The prompt then provides a brief discussion of the devastating impact of the pandemic on business. Taking into account the numerous breaches of contract that have resulted, students are asked to consider whether the coronavirus pandemic should protect contracting parties from their duty to perform, even if a contract's force majeure clause does not specifically mention “disease.” The goal is to have students present a legal argument that weighs the primacy of the contract against the exigencies of the pandemic.

I introduced this prompt at the beginning of the COVID-19 pandemic and continue to receive a high level of response from students. In addressing the legal issues of contracts, many students reflected on the social and economic upheaval they personally experienced due to the COVID-19 pandemic, as workers and, in some cases, as business owners. In doing so, one student questioned the relevance of referring to it as an “Act of God Clause.” “What if you don't believe in God?” he questioned. Such response makes clear the level of thought that a discussion board prompt may provoke.

The discussion board prompt, “That's Not Funny,”90 is designed to have students analyze the enforceability of a liquidated damage clause by taking the clause out of a more complex commercial contract and placing it in a more relatable situation of attending a show or a concert. This discussion board is assigned in connection with the exploration of contractual remedies. The beginning of the prompt shows a clownish comedian figure with a microphone. The prompt then provides a brief discussion of the Nondisclosure and Confidentiality Agreement with a $1 million liquidated damages clause that comedian Pete Davidson required his audience to sign to deter the unauthorized disclosure of jokes or information regarding his performance. Building upon their understanding of liquidated damages and basic knowledge of nondisclosure agreements, the students were asked to consider whether the contract would be enforceable and whether liquidated damages clauses are effective in deterring breaches of contract.

I use a discussion board on the topic of deceptive advertising in connection with our coverage of the topic of administrative agencies.91 The prompt includes an attention-grabbing example of deceptive advertising, provides guidance regarding the elements of deceptive advertising and also links to the relevant guidance provided on the Federal Trade Commission's (“FTC”) website.92 Students are asked to post an example of deceptive advertising. They may post the image or the link to an image or YouTube video. They are also asked to clearly explain why they believe the ad to be deceptive, being sure to reference the applicable FTC guidelines. The response post to a classmate is essentially a critique of a classmate's analysis because a student should respond by discussing whether the advertisement is deceptive. In both cases, students are reminded to support their posts by referencing the FTC's guidelines.

Negligence and product liability are topics that are covered in many introductory business law curricula. My discussion board post, Pushing the Limits of Tort Law,93 is introduced to elicit responses from students that reflect deeper thinking and critical analysis of the application of product liability law to new technologies that incorporate AI. The prompt opens with a cartoon image of a salesman standing in front of a car explaining to a potential customer that their “self-driving car always protects you even if it has to run over pedestrians—we think it's a killer feature.”94

This discussion board places the issue of negligence at the intersection of technology and the law and is based on a news article from Forbes magazine.95 Students are asked to consider one of the many complex legal issues related to AI and self-driving car technology. In this scenario, a family owns a self-driving hybrid vehicle equipped with machine-learning technology that allows it to teach itself the most efficient way to operate. The car is designed to teach itself to always start the day with a full battery. One day, the car's owners forget to plug the car in for the night and the car decides that the most “efficient” way to charge its battery is to run the gasoline motor. So, when the car runs its motor in the garage, it releases harmful carbon monoxide gas that results in the asphyxiation of the family. In the prompt, students are asked to apply the negligence doctrine to determine who, if anyone, should be liable for this tragic accident. The vehicle manufacturer? The software provider? The car's designer? The car itself? Although I chose to focus on this particular set of facts, an instructor could revise or substitute any number of different scenarios. For instance, the prompt could also be expanded to ask students to reflect on the ethical implications of AI.

Intellectual property is a topic that might be taught in an introductory business law course. It is a topic that students typically have the least amount of experience with, but ultimately may find the most useful, particularly if the student has opened or plans to open their own business.96 To the extent that time allows, I include this area of the law as part of our course content, as the pace of technological advancement of AI, non-fungible tokens or NFTs and the Metaverse have made this area ripe for discussion.97

In introducing the Naruto v. Slater98 case (also known as “the Monkey Selfie Case”) to my students in a discussion board,99 my goal is to have students think critically about the application of copyright law and how such protections are created. In the discussion board, I provide a “smiling” photo of the Crested Macaque Monkey and a brief discussion of the case, which involves a monkey who took a photographer's unattended camera and unwittingly snapped selfies while he was checking it out. The photographer put the selfies into a book and sold it commercially. People for the Ethical Treatment of Animals (PETA) brought a lawsuit against the photographer for copyright infringement. Ultimately, the court held that monkeys cannot own a copyright because copyright law does not apply to non-humans. My students are always encouraged to think critically about legal outcomes, as there is always the possibility that a court can (and sometimes does) reach the wrong conclusion. The prompt encourages students to explore the nature of copyright rights and protections, as well as certain ethical concerns by asking them to consider the following questions—whether a monkey should own a copyright and what does it mean to be human.

This prompt typically receives very strong responses from students. I attribute this in part to the layering of questions in such a way that students, in answering the subsequent questions, are engaged to reflect on their prior answer. For example, if monkeys cannot own copyright because they are not human, the follow-up question asks students to explore what it means to be human. As one student commented, “while the court said that Naruto cannot own a copyright because he is not human, that does not mean that he is not capable of complex emotions. Can elephants see how the application of color appears on blank canvas? Are they not intentional with their brush strokes? The Professor asked us to consider what it is to be human and I am still trying to figure it out.”

V. Conclusion

As I hope these examples have shown, engaging discussion boards can be created for many of the topics covered in an introductory business law course.

Discussion boards are a useful tool in teaching business law, particularly in an online course, and a helpful complement to other teaching strategies that may be used in a course. Although effective discussion boards require some work on the part of the instructor, both in construction and otherwise, the benefits to students and the contribution to the sense of community in the online context are well worth the effort.