Journal of Law School Computing
Volume 1, Issue 1
1999

Ronald Staudt^(*)

 

 

In April 1998, I served as the moderator of a working conference to explore opportunities to improve the US court system using Internet technology. The convening organization had invited judges, court administrators, court clerks, and librarians, who were technology leaders. The group was small enough to develop a sense of camaraderie during the two-day meeting. At one point in a heated discussion about computer based expert systems for pro se divorces, one of the judges made a Potter Stewart-like statement that ” We all knew where we want to go. We just need to work out the details.” I was struck by the obvious error in the statement. There was no agreement on whether facilitating more pro se divorces was a good idea. There were significant disputes about the means and even the wisdom of almost every proposed change in the court processes. But the camaraderie had been rapidly built and deeply felt. I think the sense of common purpose and fellowship grew from a core of optimism — typical American optimism — irrepressible belief in a better future from hard work and technology.

I offer this essay as a participant observer’s trace of some of the pedagogical insights that powered the activities of the Chicago-Kent Center for Law and Computers during its first 10 years. The insights arose out of my own optimism that technology, in the form of digital computing, would make law schools and law practice better.

 

Clinical Antecedents

From 1983 to 1994 I served as the Director of the Chicago-Kent Center for Law and Computers. In this role I became an evangelist for the benefits of the use of computer technology to improve the teaching and practice of law. Earlier, in 1978-80, I had worked with James Sprowl, then head of the American Bar Foundation’s Computer Project and later a colleague at Chicago-Kent, to investigate the use of automated practice systems and other computer tools to assist clinical legal education. The 1978 Chicago-Kent “Law Office of the Future Project” was aimed at using computers to improve the delivery mechanisms of routine legal services to those who were unable to afford lawyers. Optimism about the ability of computers to automate legal analysis and drafting was the fuel for the experiments. Using software engineered on a mainframe computer by Jim Sprowl, the clinical faculty at Chicago-Kent built five automated practice systems to draft documents for simple wills, uncontested divorces, guardianships, etc. Clinical students used these practice systems to prepare first drafts of client documents. The most frequently used system was the simple will system that served up 500 draft wills for senior citizens at Chicago’s Old Age Centers.

The Law Office of the Future Project predated the invention of personal computers. Terminals and printers wired to phone lines with acoustical couplers were the tools of information capture and output. My optimism was focused on the promise of automating the dull, repetitive and tedious tasks that lawyers must often perform to obtain a rather ministerial yet important result for a client. Computers were perfectly capable of handling these complex but not creative tasks if proper instructions could be written for the computers and if those instructions were properly and continually maintained to reflect changes in the law. I envisioned computers as able to leverage the research and judgment of good lawyers.

The pedagogical value was also based on this optimism. Clinical courses create special learning tension because students perform professional tasks for clients. This learning tension often motivates students and offers deep and driven learning experiences. Student work on practice systems might draw on this same source of student motivation and add analytical breadth. Student participation in the creation of practice systems would have the real world relevancy of clinical client work and also require extensive and thorough substantive analysis of all the answers that a client might offer in an interview. Mistakes would have real world impact. The intellectual endeavor would also be of challenging breadth.

Today, I am less convinced that practice systems can make a significant inroad into the law school curriculum. During the Law Office of the Future Project, students worked with clinical experts to help refine the practice systems. The work for a student of creating even a small practice system is difficult and narrow enough to tax the educational cost benefit analysis that surrounds the fight for a place in the law school curriculum. This type of project is likely to survive only as an advanced “independent study” or supervised deep research project.

My optimism in those days extended to a vision of a radically changed law profession. Greater productivity seemed within reach, lower legal fees and fewer lawyers. It appears that in the following 20 years, none of these changes have occurred. The number of lawyers grew, fees increased, ministerial work continued to be considered professional and essential to lawyer livelihood. Very few commercially viable practice systems have been built, even to this day.

I remain convinced, despite this evidence to the contrary, that optimism about practice system productivity in the legal profession is justified. Like many technology-driven changes discussed here, the insight may be good and the execution poor and the timing wrong. Practice system tools may need improvement. Professional disinterest driven by financial disincentives to adopt this time saving technology may be to blame. It may be almost impossible for most law firms to invest uncompensated time to build a practice system that will reduce the time it now takes to perform work for which the firm is paid an hourly fee. At the conference described in the opening paragraphs, the judges and court administrators were very enthusiastic about pro se practice systems that could eliminate the need for lawyers but improve the quality of court papers submitted by litigants themselves. Now that most litigants can use computers without fear, there is renewed optimism for this technology.

 

Legal Writing Antecedents

Personal computers emerged in the early 1980’s. By the middle of the decade the IBM PC was on the cover of Time magazine. Chicago-Kent, with IBM’s assistance, launched a set of projects to probe all the optimistic possibilities created by the IBM PC. Chicago-Kent’s proposal to IBM to fund its Center for Law and Computers described a wide range of innovations and deliverables. The law school agreed to build an IBM PC Classroom with 35 computers arrayed in the first teaching environment designed to teach law with computers. The centerpiece for IBM, however, was a Lawyer’s Microcomputer Toolkit and its companion Law Student Microcomputer Toolkit. IBM was fascinated by the PC software industry. New software companies like Ashton Tate, Inc. had made millions with d-Base and Lotus 123 spreadsheet program was the emerging software darling. IBM believed that in the engineering departments of IIT were youthful geniuses who would craft the next WordStar or the next VisiCalc.

Conceptually, the Law Student Microcomputer Toolkit is the predecessor of the electronic casebook. The Toolkit was designed to pull together on one machine as many different professional functions as were then available in a computer. Again, with guidance and some programming from Jim Sprowl, the Chicago-Kent Computer Center built a menu program that could call up LEXIS, word processing, utilities from DOS to manage disks and files, and the computer lessons from CCALI.

Optimism was rampant in the personal computer marketplace and we were attracted to descriptions of a new set of software products that were called “thought processors.” Inspired by software guru Neil Larson and others who claimed that Houdini or Thinktank could improve drafting and thinking, we evaluated a series of these programs and eventually crafted an experimental legal writing curriculum that was designed to explore the limits of the power of computing to improve legal writing.

The experimental writing sections used a bundle of software organized by the Toolkit menu system. Its first iteration offered WordStar for word processing, Thinktank for thought capture and outlining, Crosstalk for telecommunications, RoseKey to enable key board shortcuts and some home grown macros to call and interact with the LEXIS desktop software. Later versions of this Toolkit substituted Framework for the word processor and outline processor because Framework offered macro and telecommunications as part of its integrated package. Even later we were delighted to learn that a company called Flexpractice had built an automated document processor on top of Framework. This allowed the program to bring the early insights of the clinical program into the Legal Drafting classes.

Two pedagogical processes were at the core of the early uses of PCs in the first-year Chicago-Kent Legal Writing curriculum: top-down and bottom-up outlining.

 

1. We taught students to organize writing assignments by building a top-down computer outline that could be expanded conceptually and filled with the detail of exposition. The computer offered easy restructuring of the outline as conceptual understanding emerged. Research notes and pieces of the writing assignment were organized easily in this structure. Later, students could grab pieces of electronic text from LEXIS to capture error free quotes for their writing papers.
2. Bottom-up outlining was an effort to map the available software tools to a rough model of case book learning. In an ideal Langdellian course students would read the full text of cases in chronological order and would work toward conceptual synthesis. We offered outlining to help students understand and capture the parts of a case – brief the case – and also to cluster cases under long descriptive categories that defined the common law emerging from the line of decisions. As students worked through the assigned readings for the semester, some developed organic outlines of their class notes using these tools. Students prepared maps of the course by using the outline feature to contain electronic case briefs prepared in advance of class and a recap of class notes typed into the emerging outline after class. We stressed that the computer program required explicit assignments of each piece of text, reading notes or class notes, into the outline of concepts. We were convinced that forcing students to think about the relative position of texts in the map of the course would improve their focus on larger synthesis issues and nudge them into more productive studying habits.

As I look back on the guidebooks that we wrote to help students implement these tools as they started law school, I am struck by the complexity of the material that we needed to teach before students could begin to be productive. Most students arrived in law school in 1987 unfamiliar with computers and totally ignorant of the software tools that we used to create these new improved learning opportunities. We taught them everything they needed to know to try these new technologies, from how to format a floppy disk to DOS file naming conventions. It is amazing that some of them learned all of this technology for the first time as they entered graduate school and used these new techniques to help navigate the tasks of the first year of law school.

 

An Early Experiment – An Electronic Casebook Companion

New hardware and software needed to launch the first electronic casebooks became available in the early 1990’s. For electronic casebooks to be convenient, the computer had to be as accessible as a book. First, notebook computers increased in power and reduced in price and weight to a point that made it possible for students to carry them everywhere. On the software side, hypertext tools, like HyperCard, HyperPad and FolioViews, emerged in more and more convenient and inexpensive packages. Hypertext software made it possible for an electronic author or teacher or student to create links between any two points in the texts of the law. Hypertext made it possible to build, in the computer, an image of the fabric of the primary sources, an image that could be navigated, annotated, and cross-referenced.

In my first attempt to harness this set of insights, we built a hypertext companion to a paper casebook. The companion was a repository of my teaching notes, the teaching notes of one of the authors of the casebook and a statutory supplement. The structure of the book was also represented in a series of electronic note cards that mapped to the table of contents of the book. Each note page had links pages higher and lower in the hierarchy and to LEXIS. We offered a link to the definitions of legal terms on each page. The assigned texts were available only in the print casebook except for a few late breaking cases that the students were told to download from LEXIS and store in the computer for class discussion.

This “study tool” was not received with enthusiasm. Most students tried the tool to humor the professor and then continued their former study and note-taking behavior. My contemporaneous evaluation pointed to student unfamiliarity with graphical interfaces and mice as significant barriers. Looking back, it is obvious that this computer outline of the casebook did not offer enough power to make its use valuable to students. It built on the outlining insights from the legal writing classes by adapting a note-taking machine for a particular course. At best, it helped to organize notes taken in class if those notes neatly fit into the book’s table of contents. The students found the statutory supplement, definitions and the convenient links to LEXIS interesting, but there was no compelling functionality offered.

 

The First Electronic Casebook – Computer Law on Disk

Casebooks are the predominant tools used by faculty to help them teach skills and impart information. Casebooks are conceptually simple. They offer to faculty adopters and their students:

1. a structure for assigned readings,
2. editing of published texts to focus attention on the parts of those texts deemed most relevant by the teacher and
3. authored instructional texts in the form of explanation, analysis, questions, problems or citations to suggestions for additional reading.

The electronic casebooks developed at Chicago-Kent and emulated by the commercial publishers offer some new techniques for reaching these pedagogical goals. The rules, the texts from which they are derived and the texts used to explore legal analysis are all available in digital form. By virtue of the online systems, LEXIS and Westlaw, most of the internal references can be instantly available in full text if the student is connected to a network or phone line. Using software like FolioViews the computer can offer endless editing, easy linking of any text segment to any other, and easy restructuring of the conceptual structures through outline management.

 

My optimism drove a belief that these tools permitted the author, teacher and student to be interactive with an electronic artifact. I also believe that the artifact itself can be expected to have verisimilitude. The electronic representation of the law delivered in electronic form can be conceptually more true to the nature law itself than flat text in paper form. This more natural artifact, it seemed to me, would offer pedagogical benefits to those who were learning the law for the first time. It would support a more Langdellian pedagogy by allowing a student to wander through the linked texts in the exact relationships defined by the authors of the texts. A more detailed description of the insights about the parallels between law, hypertext and artificial intelligence that fired my imagination can be found in “Legal Mindstorms: Lawyers, Computers and Powerful Ideas.” (31 Jurimetrics J. 171 (1991)).

Electronic teaching materials in law could offer two other new capabilities: First, the electronic casebook could become a tool for group learning projects. Teachers could modify and reorganize an electronic casebook with ease, make it their own and adapt it to their own style of pedagogy. Students could be given assignments to do deep research and analysis of pieces of the course and offer electronic notes to the class to enhance the texts presented in the course. Second, ubiquitous connectivity delivered by local area networking and the introduction of the Internet added interactive communications power that paper could never offer. Asynchronous communication with the professor or the study group with precise reference to the texts in question could make the electronic casebook itself a repository for electronic discussion.

In 1992, I prepared a completely electronic casebook, using the same HyperPad technology described above, for a course called Law and Computers. The major change from the “companion” approach was that all of the assigned readings were available in the notebook computer in electronic form and nowhere else. In the following year, we rebuilt the same electronic course materials in FolioViews, a software platform used by many publishers in law and accounting to distribute material on CD-ROM. This FolioViews version of the Computer Law on Disk course became the prototype for many of the electronic casebooks now in “circulation.” Chicago-Kent used these new course materials to launch a small experimental section of its first year class starting in 1994-5. In 1995-6, a full section of 100 students entering Chicago-Kent was furnished electronic versions of as many of their casebooks as possible.

There are some detailed accounts of Chicago-Kent’s early efforts to build electronic teaching materials and the first electronic casebooks. My own account in “Does the Grandmother Come with It? Teaching and Practicing Law in the 21st Century” (44 Case Western Reserve L. Rev 499(1994)) is my best effort to present the issues. Richard Warner’s piece “Teaching Electronically: The Chicago-Kent Experiment” (20 Puget Sound L. Rev. 383 (1997)) is more objective and a superb presentation of the current state of the art. Peter Martin studied the Chicago-Kent “E-Learn” section and wrote a detailed evaluation and analysis of that most thorough experiment in the pervasive use of electronic casebooks. His account is available in 1998 on the Internet at www.law.cornell.edu/papers/kentrprf.htm.

 

Postscript

It is too early to write a recapitulation of the success or failure of electronic casebooks. We are living the early history of these emerging tools for pedagogy. From 1994 through 1998, I left academic life and managed the product development activities of LEXIS-NEXIS. During that time I helped LEXIS-NEXIS launch electronic products, including a series of electronic casebooks modeled on the Chicago-Kent prototypes. With the perspective of those four years out of the classroom in a business environment, I am more convinced than ever that optimism about the power of technology to make things better is a powerful force. Inside LEXIS-NEXIS, as well as in the Center for Law and Computers at Chicago-Kent, the sustaining drive to try new tools, new products, new courses, new approaches to pedagogy bubbled up from this simple optimism. Often, that optimism was misplaced. Frequently, the new thing went badly. In retrospect, it may have been better to wait a bit before pushing this or that new invention into the classroom or library. But, thankfully, I believe that this optimism in the benefits of new technology is irrepressible. It certainly is in me.

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*. Ronald Staudt is Professor of Law at the Chicago-Kent College of Law of the Illinois Institute of Technology and vice President for Technology Development, LEXIS-NEXIS.