Originally published in the The History of Legal Education in the United States Volume II by Salem Press, 1999. Amazon
Journal of Law School Computing
Volume 1, Issue 1
“All the notions we thought solid, all the values of civilised life, all that made for stability in international relations, all that made regularity in the economy…in a word, all that tended happily to limit the uncertainty of the morrow, all that gave nations and individuals some confidence in the morrow…all this seems badly compromised. I have consulted all the augurs I could find, of over species, and I have heard only vague words, contradictory prophecies, curiously feeble assurances. Never has humanity combined so much power with so much disorder, so much anxiety with so many playthings, so much knowledge with so much uncertainty.”(1)
A somewhat obscure sub-genre of science fiction deals with alternate histories. What if Kennedy wasn’t shot? What if The South won the Civil War? What if Napoleon won at Waterloo? I have found these stories fascinating because they always had basis in historical fact with one, small, though quite significant change in what actually did happen. The idea of conceiving of multiple, possible histories gives interesting perspective to the exercise of what possible histories are ahead of us.
I will use this essay to spin some alternate futures for legal education. All of them are plausible to varying degrees and all of them will come true, I believe, to a certain extent. I hope to highlight ideas and experiments that are incubating in legal education today that may mature into these possible futures and also comment on the motivations and barriers that will prevent or encourage these futures to come to pass.
The goal of this essay is not to offer strategic advice to those of us involved in legal education. The limits of this forum and the complexity and broadness of the task would render most advice to mere platitudes. Rather, I hope to stimulate some thinking about the future of legal education that will motivate an ongoing dialogue.
As the Executive Director of the Center for Computer-Assisted Legal Instruction(2), I am keenly interested in the future of legal education. CALI’s non-profit mission is to serve legal education with focus on the intelligent use of computer technology as an agent of change. My training, degrees and profession are in Information Technology and Computers. I am neither a lawyer nor a professional teacher. However, for more than seven years, I designed, built and managed the computer systems and services at a mid-western law school, and during that time, felt that I joined the community of legal educators as I listened, learned and endeavored to create systems that supported the needs of law school faculty.
In 1991, I organized the first conference to professionalize the area of computers in legal education.(3) In 1998, this conference will celebrate its 8th year and there are strong indicators that computer staffing in law schools has attained viability as an integral partner in legal education in the incredibly short time of less than a decade. At the very first conference, John Hankins, Network Manager at CICnet(4), boldly told a roomful of librarians, faculty and law school computing staff that in less than two years, we would all be “on” the Internet, (whatever that was) and that we should start planning for it right now. While planning the 1998 Conference, it was difficult to conceive of a session or presentation that did not, in some way, involve the Internet or the World-Wide-Web. The CALI Conference has portended many new advancements in the use of computer technology in legal education. The first Microsoft Windows graphical web-browser, Cello, was demonstrated in beta version by its author Tom Bruce of Cornell law school in 1993. The first electronic casebook, developed by Professor Ronald Staudt while President of CALI was unveiled at a CALI Conference. The first Electronic Library was exhibited at a CALI Conference(5) and the first windows-based word processor was displayed by a vendor at a CALI Conference.(6)
All of these foretold future directions of technology and their eventual application to legal education, but very few of these products exist today in the same form as they were first introduced. Technology, alone, does not create change. It can only make things possible. Change occurs because people use the technology to improve efficiency or educational impact on their students. The acceptance of new technologies is most powerful, however, when it changes the culture of the law school. A better way to put this is that rapid change occurs only when a critical mass accepts and uses a new technology. E-mail is an excellent example. If only 20% of a community had and used e-mail, it would quickly die out as a passing fad. But when everyone is connected, the value and potential for communication is exponentially greater and as more and more members of the community log on, the value becomes more and more apparent to everyone.
The number of computer technologies that have achieved critical mass in legal education today can be counted on one hand. Word processing, on-line legal research such as LEXIS or Westlaw, and electronic mail. Almost every law school has a web-page and hundreds of faculty are creating and using web-pages to support their courses, so it looks like this may achieve critical mass as well. The list of technologies that have not yet reached critical mass is quite a bit longer. Computer-based instruction(7), electronic casebooks(8), interactive video lessons, expert systems/artificial intelligence, computers in the classroom (either used by the faculty member to teach from or by the students to type, rather than write, their notes), natural language searching and computer-based exams are all present, but not yet integral to legal education like word processing, email and on-line research are.
Other technologies are still in the experimental stage and may soon come crashing out of the gates heading for the critical mass finishing line. These include distance learning, video-conferencing and web-based legal research to rival that of LEXIS and Westlaw. The Internet has been transporting text since its inception in the early 1970’s. The Web has brought us easy delivery of pictures and sound and crude animations and video. The logical conclusion of this advancement is real-time, effortless video delivery to and from any personal computer, television and cellular phone. It will happen. We are only biding our time, waiting for the fiber to be pulled, the satellites to be launched(9) and the technology to stabilize and standardize so that critical mass on a global scale may occur.
Legal education may or may not change, but it is in for quite an interesting ride as these experiments lead to new experiments and as the existing players and new players jockey for position. These new technologies will force us to re-examine the ways that we create, deliver and verify educational goals of our students. Technology will not cure all that ails us. In the short term, it will create many more problems than it solves while we grapple with the possibilities. This essay will examine some of those possibilities in the form of potential future directions for legal education.
Alternate Future: The Monolithic Law School
In the past several years, many colleges and universities around the globe have begun to offer for-credit courses that are taught almost entirely across the Internet. These courses use web pages for the syllabus and course readings, email for submission of assignments and student questions, chat rooms for real-time discussions, downloadable tutorials for self-study and on occasion, sound (and less frequently video) recordings of lectures available anytime, anywhere via the World-Wide-Web. Hundreds of faculty have supplemented their courses using these same technologies. The growth of these has been nothing short of explosive and LEXIS and West have contributed with products and services to support web-based course pages.(10) In early 1998, Harvard Law School and Arthur Miller began offering a non-credit course on Privacy in Cyberspace delivered entirely over the Internet which included a web site, email discussion and pre-recorded lectures delivered via the web. Harvard does not mince words regarding their goals:
“We are inaugurating a global cyber school, eventually to serve all languages and all ages.”(11)
Distance learning is not new. Correspondence courses, delivered by U.S. Mail have been around for over a century. What is new is the richness of interaction and the ease of delivery that can be achieved by faculty and schools. In anticipation of the unregulated growth of this phenomenon, the American Bar Association’s Section on Legal Education issued a set of Temporary Distance Education Guidelines on May 6, 1997. Normally not known for its rapid response, the ABA’s warp speed issuance of these guidelines legitimizes and even encourages experimentation in this new educational delivery medium. Not surprisingly, these same guidelines also reiterated the ABA’s refusal to grant permission to law schools to
“…grant credit for courses taken by correspondence study”.(12)
Despite this impediment, the logical extreme of this phenomenon was obvious to many as evidenced by articles and on-line discussions that have recently occurred in legal academia circles. Could not all classes in <fill in the blank> subject be taught by one faculty member over the Internet? Won’t this reduce all other faculty who teach <fill in the blank> to teaching assistants? The short answer is “yes”. In the recent past, cross-institution, experimental courses with a large digital component have been seminar courses in areas such as Intellectual Property, Indian Law and Law of the Internet. Online courses covering the core law school materials such as Civil Procedure, Contracts and Torts are sure to follow. In this future, one law school will offer all of its classes and faculty to law students around the world via the Information Superhighway. Real-time or digitized for later download, full motion video lectures will be delivered wherever the student connects. The technology exists to accomplish this today and it is not that expensive either. The largest costs are storage of the digitized video for later access and staff to operate the video cameras while the professor roams the classroom. A full television studio production facility would be more expensive, but not an entirely unlikely scenario. In this future, every classroom becomes a channel on the Harvard Law Interactive Cyberschool Network.
The quality of the online educational experience is still in question. Proponents of entirely electronic education still have to prove that the same educational goals are being met or exceeded. The groundwork is being laid in the experiments and pilot projects of today for future, for-credit, entirely online, legal education.
Law schools and CLE providers are already using audio and sometimes video delivery to augment their web pages to deliver legal education. The economies of scale make this future quite viable. One teacher, teaching to thousands of students. There are very few law schools that could sustain dominance in a global marketplace. It could only work from a top-tier institution with international prestige, plenty of resources and a lot of moxie. Harvard and perhaps a few other institutions might fit that description.
Localized monolithic law schools are possible on the state level. State legislatures, seeking to save money may become attracted to the idea of consolidating the resources of several schools into a single, online school. Salaries and infrastructure costs are reduced, every student is taught by the top instructor and the marginal cost of adding students to the class are minimal since the student is paying the freight on the delivery to their personal computer.
In 1996, a consortium of western states was formed to deliver online undergraduate curriculum from state universities(13). California decided to opt out of this consortium.
“…With pre-eminent high-tech and entertainment industries as well as prestigious universities, he said, California is in a unique position to set up its own world-class online network.”(14)
Given California’s size, the state is arguably in a position to do this, but the competition for students won’t stay within state boundaries. Similar, for-profit ventures have also been launched to compete for the tuition dollars of cyber-savvy students working through high school today(15), and I will cover that further on in this article.
The biggest barrier to for-credit, online, law school is accreditation from the ABA, but if it can be demonstrated that the quality of education is the same or even better, then things may change. Online education may also meet other needs that will support its growth and accreditation. The Americans with Disabilities Act requires schools to make reasonable accommodations to disabled students. Making changes to infrastructure such as classrooms, staircases and laboratories is quite expensive, but with cyber education, the classroom is the student’s home, so few accommodations may be necessary. Online school can provide equal access to minorities and probably for less money. In this future, University of California Board of Regents v. American Bar Association is inevitable.
Consolidating all law schools in a state means you need less faculty, less infrastructure and less staff. Downsized faculty and clerical workers unions will fight this. The tenure system will have to be re-evaluated, weakened or dismantled. Since its inception, tenure has come up for critical scrutiny many times. The coincidence of the current rumblings about the tenure system and the rise of online education may provide the flashpoint for its final downfall. There will be monolithic law schools in the future – either state-sponsored mega-schools or prestige extensions of existing market leaders. What will the rest of us do in response to remain competitive?
Alternate Future: Law School Mini-Consortia
When the going gets tough, the tough join forces. If a single law school or a group of state-run law schools can go online to attract students from the global applicant pool, then it is possible, even necessary, for small groups of law schools to form mini-consortia that leverage strengths of each member of the consortium. This is a route for private schools seeking competitive advantage in the future.
A small collection of law schools of equivalent stature could join forces to deliver the best they have to offer. Students would not attend a single school, but a consortium, taking classes from…well, it wouldn’t matter from the student’s viewpoint. The law schools would have resource-sharing agreements and would normalize their curriculums, tuition and schedules to accommodate the students. Teaching in specialized areas would be stronger overall as faculty from each law school would combine to form virtual centers of excellence in such areas as Environmental Law, Intellectual Property and Labor/Employment. One person departments would be a thing of the past. Some attrition among faculty would naturally occur, but more among non-teaching staff. Why have multiple Admissions, Registrars, Career Services and Libraries? Local infrastructures would be reduced or converted to occasional on-site training sessions in the practice of law. Libraries and librarians are especially vulnerable as more primary and secondary material becomes available online.
Despite all the excitement over online education, there are compelling reasons for not delivering all legal education online. Practical skills training, such as that offered by clinics, are becoming increasingly important. Many states are experimenting with a practical component to the bar exam to bridge the gap between academia and practice. The Canadians and Europeans require law school graduates to “apprentice” for a year before being allowed entry to the Bar.(16) The increasing importance of legal writing and analysis skills may not translate well into the cyber-realm.
A geographically dispersed mini-consortia could leverage its under-utilized buildings and classrooms to provide office space and training to students for the practical portion of their education. Clinics would flourish as every student is required to spend several weeks a year working real cases with real clients fulfilling the practical component of their education and preparing for the practice portion of the bar exam. “Boot camps” for legal writing, moot court and skills training that resemble today’s intensive trial advocacy courses would increase to meet these needs. A consortium of the top private law schools in the major legal market areas like New York, Chicago, Los Angeles and Houston could present a formidable front to the state-consortiums or the monolithic law school described in the first future above. Given the globalization of law practice, you might add London, Tokyo, and Hamburg to that mix.
Local law schools have always had the advantage of handling the variations in state laws that exist. It might be difficult for a student in Nebraska to take courses from a consortia that doesn’t offer any focus on the student’s home state. Law schools may learn some things from the for-profit bar preparation companies that are expert at teaching this material – at least as far as passing the bar is concerned.
Again, economies of scale make this future possible, but competitive pressures for a dwindling, quality applicant pool are more compelling reasons. The 1990’s has been a period of merger-mania as markets and companies consolidate and globalize. In the legal education arena alone, the number of legal publishers has been tremendously reduced as Reed-Elsivere and Thomson have gobbled up Lexis-Nexis, Matthew Bender, Shepards, West and others in just the past several years. Education will become more commercialized and commodity-like. Private law schools have the further advantage of initiating these coalitions themselves in contrast to state schools where the pressure may come from above in response to cost-cutting. Where is this economic and competitive pressure coming from? Aren’t there enough law schools already?
Alternate Future: Invasion of the Barbarians
The answer in this future is “no, there are not enough law schools.” Many pundits decry the glut of lawyers in the United States today and the National Association for Law Placement’s recent statistics show that since 1990 law school graduates have increased while those finding jobs in private practice has decreased.(17)
If they are not practicing law, what are all these lawyers going to do? Some will start businesses in the lucrative field of legal education. Legal education is a profitable business. The cost of infrastructure, compared with other areas of study such as chemistry and physics, is quite low. The materials for the study of law are largely in the public domain and almost all primary and many secondary sources are available online or on CD-ROM. No other area of study can boast such thorough digitization. Law schools are often described as the cash cows of private universities.
The faculty of these virtual, private, for-profit law schools would be made up of lawyers tired of practice or better yet, partners taking early retirement from their practice. They have made their money and may see this as a way to contribute to the greater good of society. Lawyers with extensive experience and excellent speaking skills from many trials and litigations could be courted by for-profit firms seeking quality faculty who are not steeped in scholarship. Their reputation and experience in practice would be a selling point to students looking for law degree that gives them a solid, practical understanding of the law. Many business schools advertise that their faculty work for the Fortune 1000 offering “real world” experience in the classroom. Medical students are taught by practicing physicians in teaching hospitals, why should law be different? Perhaps experienced faculty and librarians who have been down-sized in the previously discussed futures will find employment with a for-profit firm offering better benefits, better working conditions and no scholarship requirement or tenure pressure.
For-profit law schools will have less compunction and more flexibility to offer their educational services to other markets such as CLE, foreign businesses and white-collar workers who need to understand some area of law that impacts their jobs. As legal matters pervade our everyday lives, from crime to child care, from taxes to traffic tickets and from sexual harassment to small business, everyday people are intensely curious about the law and many are realizing that they will be more valuable in the job market or better able to perform their current jobs if they have a better understanding of the legal system. A law degree is not their goal. Today, there are few products aimed at this market. Other factors motivate a broader marketplace for legal education in the future. More people will seek legal education to start businesses, defend themselves against lawsuits, create social change or advocate a political issue. Legal literacy may become another fundamentally required skill to be an engaged citizen in a democratic society of the future. For-profit law schools will meet this demand. Extremely low overhead, practical education, flexible hours and a money-back guarantee will overcome the lack of history, tradition and prestige offered by today’s law schools.
The ABA has recently accredited a for-profit law schools and there are others in the process of obtaining accreditation.(18) Alternatively, there are a few examples of for-profit law schools offering correspondence study today over the Internet, but no one seems to be taking them seriously for now. Accreditation with the ABA will be a serious barrier, but if that gets cracked by establishment law schools to allow them to deliver legal education online, then the door will be opened for the barbarians as well.
It’s hard to get seriously worried about a group of unemployed lawyers forming up to compete with our venerable institutions of legal education, but what if these lawyers are well-funded, backed by a name-brand steeped in tradition and already possessing vast online experience and resources?
Alternate Future: Law School, Inc.
Welcome to Law School, Incorporated. Instead of small, entrepreneurial start-ups entering the legal education market, large, well-funded and established, corporate entities will. These could include Reed-Elsivere, Thomson or established continuing legal education publishers like the Practising Law Institute. Other possible candidates are BarBri, large accounting firms like Peat Marwick, Ernst & Young or Arthur Andersen that employ more lawyers than even the largest law firms or large law firms seeking to diversify their portfolios.
Many law schools employ adjunct faculty that are already employees at large law firms. A large enough law firm could leverage these teachers to offer courses to potential clients or as a recruiting angle for new associates. Many states require lawyers to take continuing legal educational courses and allow teachers of these seminars to receive credit for their presentations. Law firm teachers can offer the firm’s in-house expertise as a selling point as well. They would not only teach the theory of law, but could provide intimate access to the practice of law as well. Practical skills could be gained on real cases, the school is a law firm, so no need to add a clinic and the cases would not all be pro-bono either.
These entities have sufficient resources to fund for-profit legal education ventures and many are invested heavily in educational delivery systems already, both traditional and online. The legal publishers have larger libraries of source materials than any single law school and they understand the legal education market better than any commercial entity. Given that it would be a bold move to directly compete with established legal education academia, partnerships are likely. Many professional sports teams now play in stadiums that have been renamed to reflect their corporate sponsorships(19). These ideas may stick in the craw of venerable educational institutions that will not compromise their values for the bottom line, but if the right combination of competitive pressures, global opportunity and economic incentive can be found, is the Lexis-Nexis-Harvard Cyberschool or the Baker & McKenzie Online Law School so inconceivable? In the past, such partnerships have been kept at arm’s length, but the future is all about new collaborations that leverage the reputations and strengths of the partners. Law faculty would never allow advertising in their classrooms by a vendor, but they are more complacent about vendor presence in their virtual classrooms when they use online services to deliver course materials to their students. For-profit, online law schools would be seeking students that could also become clients, customers and employees.
Accreditation would be an important issue, but these commercial entities have proven their willingness to litigate as part of their business development. Technologically and developmentally, this future is the most probable of all. Culturally and politically, it is also the most problematic. Legal education is at least a billion dollar industry and profits from books and online databases is being assaulted by all the free access to information that can had for $19.95 per month on the World-Wide-Web. Is it accidental where www.lawschool.com takes you?
Legal Education: 2003
Now that I’ve thoroughly frightened you, let me say that I doubt that any of these futures will come to pass in any significant degree for at least five years. Changes in education move at glacial speed and the long history of tradition and prestige that law schools enjoy today gives them a powerful momentum that will be difficult to overcome.
There are other reasons why none of these futures may be realized at all. The chaos brought about by rapid change may cause people to cling to known entities and locally trusted institutions. Law schools may hunker-down and weather out the vast changes occurring all around them. A “back-to-basics” movement in education could re-energize law schools to return to smaller student bodies and more personalized attention paid to students. Schools may pick and choose more delicately which technologies they choose to integrate into legal education. Lawyers, law schools and state bar organizations may circle the wagons and effectively repulse the assaults on their right to be the gatekeepers to the practice of law. Lawyering is more than a job or a profession. Lawyers are supposed to have public duties and ethics that transcend personal wishes or money. Lawyers are servants of society-at-large and the rule of law. Can these ideas be effectively passed on to law students from schools whose motives are less than pure? The training of students to think like lawyers occurs through immersion in the study of law. The transformation of legal education to more student-centered learning may run counter to this notion. It may be harder to mold minds via cyberspace.
The next five years will find legal education and all of its participants doing business as usual. There is a lot of infrastructure building happening and a lot of experimentation in computer-integrated legal education. Hundreds of faculty have supplemented their courses with web pages. More and more law schools have someone with “Director” in their title managing computing services and you would be hard pressed to find a law school that didn’t have a web page and didn’t have email for each and every one of its students, faculty and staff.
Law schools will spend the next five years consolidating their understanding of new, web-based technologies to support existing classes, distance learning experiments, local and overseas partnerships and administrative efficiencies. Publishers such as Thomson and Reed-Elsivere, non-profits such as CALI and institutional initiatives such as Cornell’s Legal Information Institute, Harvard’s Berkman Center and others will not be idle either. I suspect these will be extremely busy times for all players as we struggle to understand how best to use technology to serve legal education, as the faculty culture becomes more sophisticated in its use of computers and the Internet and the tools leverage more power into the hands of everyone.
If you read the last section and were relieved to learn that you can duck your head for five more years, then you have read me wrong. The successful schools are already on the path to the future. Experiments may lead to failures, but each mistake teaches us more about how the system can work when it is scaled up to include an entire faculty and student body. Experience will be a stern teacher, but will reward the tenacious student. The technologies, programs and services that will seem to burst upon the scene in 2003 are in incubation today being refined, reworked and re-engineered. The successful institutions will have spent the intervening time educating themselves by re-examining every facet of the educational delivery process. Schools with scarce resources should realize that computer-integrated learning is a growth area and should not be underfunded or cordoned off from the “real” education that goes on day after day. The time for gurus, entrepreneurs and change-agents is drawing to a close as we will all have responsibilities in creating and managing change. You can sit by the side of the road and wait to learn from others mistakes, but then you will not be building the habits and tolerance into your institution’s culture that the rapid degree of technology change requires. Peter Schwartz, in his seminal book, The Art of the Long View,(20) advises us that
“… the point is not to ‘pick one preferred future,’…Nor is the point to find the most probable future and adapt to it or ‘bet the company’ on it. Rather, the point is to make strategic decisions that will be sound for all plausible futures”.(21)
This would be difficult to do if we are not actively engaged in exploring the possibilities of new technologies today in legal education. The future will be decided by our actions today and the actions we take today will determine which future we get.
9. The recent decision by LEXIS to stop distributing Folio Views for free to law schools does not bode well for this technology in the Folio format. HTML-based publishing is a likely successor, however.
12. From http://cyber.law.harvard.edu/metaschool.html, the web site for the Berkman Center for Internet & Society, visited in the summer of 1998.
13. Temporary Distance Learning Guidelines, American Bar Association Section on Legal Education, www.abanet.org.
14. Western Governors University at www.westgov.org visited in the summer of 1998.