Never Let a Crisis Go to Waste: Teaching in Law Schools Today

Here are some brief comments I made today at a UB seminar on Teaching and Learning in the Classroom of the Future:

I’m not at all confident about predicting the future. It’s hard enough just seeing clearly what’s going on around us right now, especially when you’re operating at a high level of generality as we have been doing thus far. So what I’m going to do today is try to report to you on what’s going on in the discipline I’m familiar with: the study and practice of law.
Law schools have been slow to adopt technology. In some ways this is surprising: law was one of the first disciplines to have its corpus of fulltext research sources readily available online. LexisNexis launched in 1973, offering full text of all Ohio and New York cases. By 1980 it included full text collections of all U.S. federal and state cases. Now LexisNexis and WESTLAW, which started a few years after LexisNexis, include virtually all the information sources a lawyer needs to do his or her research, as well as a variety of litigation and law office management tools. So online text resources have been an integral part of both law practice, and the study of law, for over 30 years.
Beyond the use of fulltext research tools, however, law schools seem to have lagged behind our counterparts in undergraduate and K-12 education. In O’Brian Hall, many of our classrooms still have chalkboards, although they now also have computer projectors and Elmo visual presenters, and faculty are increasingly using them.
I think there are a couple of reasons for this. For one, law tends to be a somewhat conservative profession, in the sense that it tends to resist innovation. Law is built on precedent, and I think that years of training and practice in looking to how things have been done previously has to have some influence on how lawyers make choices outside of the classroom. Also, lawyers by nature and by training are pessimists. It’s our job to think of all the ways things can go wrong, and to take precautions against risk. Lawyers are risk-avoiders by nature and by nurture. That’s one of the reasons creative and entrepreneurial types don’t like lawyers: our job is to say “no, you can’t do that, and here’s why.”
In addition, my sense is that law students tend to be less technology-oriented than “digital natives” are generally assumed to be. Professor Gradel noted this morning that the research on learning styles has been at least partially debunked. However, I think some self-selection takes place among students who choose to go to law school. Law probably tends to attract and retain students who are linear thinkers, and who are comfortable with text. Yes, they all have smartphones and laptops and Kindles and iPads, but they are not, unlike Professor Gradel young learners, natural integrators. They seem to tend to compartmentalize, and many of them keep their online activities separate from their student/professional selves.
Moreover, universities—especially research universities—generally do not reward faculty who devote their time and efforts to improving pedagogy. As rankings and scholarly reputation become increasingly important in competing for scarce resources, teaching often takes a back seat.
So law schools tend to be slow to adopt new teaching technologies. Many law professors ban laptops in class, for a variety of reasons: students get distracted and claim they are effective multitaskers; they tend to transcribe rather than listening, thinking, and participating in class; and facing a wall of students hiding behind laptops is disheartening.
I tried banning laptops in my large classes last semester, but I didn’t feel that it made any discernable difference in the quality of classroom discussion, so this semester I went back to permitting them. I use KeyNote, the Mac alternative to PowerPoint, mostly for displaying images or textual headings as a sort of way-finding tool to help students orient to where we are in the class. I also have my classes audio recorded, so students who missed can listen at their own pace and, hopefully, participate more actively in class.
However, some of you may have heard some talk of a crisis in legal education. Fewer students are applying to law schools, and everyone is worried about our graduates finding jobs and paying off their student loans. Law schools are being forced to innovate in order to compete.
There has been some interest in “flipping the classroom.” I’m skeptical about this; the traditional Socratic method, where students read cases outside of class and teachers push them to analyze and respond to questions and hypotheticals in class, already flips the classroom—if students do the work, and if professors demand it of them. I haven’t seen evidence that students are more interested in viewing video lectures than they are in reading course materials.
There have been some experiments with distance and online learning in law schools, but those schools that are interested in online learning are limited by ABA accreditation standards that restrict the use of distance learning to no more than 15 hours toward the 64 credit hours required for graduation
However, there is movement to change the way we do things, much of it coming from outside the university. National and regional accrediting groups increasingly demand measurable assessment of learning. New ABA Law School Accreditation standards require that law schools establish “learning outcomes.”
In the area of technology, change is coming as well. ABA Ethics Rules on Competence (Model Rule 1.1, Comment [8]) require that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Just this week I’m talking to my Legal Ethics students about using the Blackboard SafeAssign feature to turn in their weekly assignments; if they have difficulty using an online submission tool, it’s their responsibility to work it out. I’m going to remind them that most courts now require online submission of all documents, and it’s not acceptable for a lawyer to email a brief to the judge and say “I couldn’t get it to work, I hope this is OK.”
So law schools are starting to be more open to innovation in teaching. A thousand flowers are blooming. Of course, many of those “flowers” are pet projects that are brought forth every time there’s an opportunity, and everybody thinks their pet project is the key to the future of legal education. But the upside is that law schools are now less likely to dismiss new ideas, and there is real room for creative change in law schools now and in the future.

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