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JILT 2001 (1) - David Thomas


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American Legal Education: Moving from the Classroom Without Paper to Instruction Without the Classroom?

David A. Thomas
Professor of Law
J. Reuben Clark Law School
Brigham Young University
THOMASD@lawgate.byu.edu

This is a revised version of a paper presented at the 15th Annual BILETA Conference, 13-14 April 2000,
University of Warwick, UK.

Abstract

The paper describes anecdotally the growing use of computer technology in American law schools. The author then reviews the current state of distance learning in American legal education, including accreditation restrictions the American Bar Association currently imposes on distance learning programs in US law schools. The author reviews in summary fashion the advantages and disadvantages of distance learning in the context of American legal education and describes how technology may be beneficially used even without distance learning programs. He describes the features of a paperless property law course he currently teaches to first year law students in a highly regarded American law school. This web-based law course incorporates technology to provide student attendance rolls and photos, full-text readings, written assignments, outlines and other study aids, past examinations and model answers, multi-media presentations, and e-mail communications, all enhancing the traditional classroom interaction that is so prominent in American legal education. The article concludes with some suggested guidelines for using computer resources in legal education.

Keywords: Distance Learning, Paperless Classroom, Legal Education, US.


This Commentary was published on 28 February 2001.

Citation: Thomas D, 'American Legal Education: Moving from the Classroom Without Paper to Instruction Without the Classroom?', Commentary, 2001 (1) The Journal of Information, Law and Technology (JILT) <http://elj.warwick.ac.uk/jilt/01-1/thomas.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_1/thomas/>.


1. Introduction

When I began my legal education in September 1967 at Duke University Law School in North Carolina, I put myself at the forefront of technological innovation in American law schools. I brought with me to the law school a brand new portable electric typewriter. Of course, typewriters were not new, but electric typewriters were still mostly behemoths and mostly used in office settings. My little portable electric I hoped to use at my student flat, where I would do most of my studying, intending to achieve wonderful efficiencies as I prepared briefs of cases and reading notes for classes. Of course, I could not bring it into the classrooms and clack away as the professors tried to lecture. When it came time for examinations at the end of the academic year, I considered myself truly advanced, as I became one of the first law students at Duke to obtain permission for using and to actually use my typewriter to write my examinations.

2. Growth of Computer Technology in American Law Schools

That stage, however, represented the outer limit of my technological sophistication for a number of years thereafter. Besides, as an attorney and eventually a law professor, I had secretaries and other assistants to do the kind of labor-intensive work I had done myself while in law school. And, I was never one of those what we so condescendingly call techno-geeks (or some other equally awful epithet), and I looked askance at those who became completely enamored of new technical processes, but never managed to pay much attention to substantive content. In 1979, after I had been a law professor for five years, our office adopted the latest word processing techniques, and I was pleasantly surprised to note that my scholarly productivity quickly increased by a factor of about four. In the two decades since that time, our law school, along with sister schools in American legal education, has made an enormous investment in what we call generally automation, so that now all work stations and all student study stations are linked through file servers and local intranets, with completely convenient communications through the internet and various national and worldwide databases.

In addition to revolutionizing the reach and efficiency of our classroom teaching, these advances have opened enormous opportunities for extending our teaching beyond the classroom and campus. This, in turn, has raised provocative issues about how important it really is to provide live and 'real time' instruction. Is distance learning the inevitable path of future progress, or is it merely a contradiction in terms? At the moment, it appears that American higher education in general, including legal education, has hesitated fully to embrace these brave now possibilities. This article will report on the current state of enthusiasm for distance learning among US legal educators, with emphasis on the most important issues attracting their attention.

Until those issues are more fully addressed and even resolved, technology may still have a profound impact on traditional instruction in conventional American law school classrooms. This article will review the technological innovations that seem to offer the most benefits in current American legal education practices, including some of the author's 'notes from the field.'

3. The Feeble Beginnings of Distance Learning in US Legal Education

All of the new technological advances enable us to reduce some of the burden, expense and tedium of teaching law classes in the traditional way, but the traditional way in fact remains the universal methodology for teaching law in the US Professors appear in their classrooms, they profess before the students, they ask the students to answer questions, they answer questions posed by the students, the students study and prepare for class, they come to class, they listen, they answer questions posed to them by their professors, they ask questions posed by their professors, they review class and reading notes and other materials, they write papers which they submit for editing, and they sit for examinations. So the traditional way of teaching persists, but any thoughtful observer perceives immediately that the new electronic processes open the way for law classes to be taught in non-traditional ways. The most common non-traditional possibility for teaching law classes is usually labeled under the euphemistic term of distance learning.

American legal educators are still hesitant to embrace distance learning in law schools, either philosophically or pragmatically. Reasons are wide-ranging and idiosyncratic, from idealistic notions about the unique virtues of live instruction to crass fears about reduced opportunities to become members of the academy. These reservations are manifest in limitations imposed on distance learning experiments in American law schools by the legal education accreditation authority, the American Bar Association.

4. American Accreditation Restrictions on Distance Learning Programs

As might be expected, the American legal education establishment is fundamentally resistant to any massive movement toward distance learning. Nor, understandably, would most law professors blithely accept the virtues of distance learning, when in consequence the professors would become dinosaurs.

In American legal education, distance learning is moving very cautiously. To survey this situation, we begin with the official accrediting agency for all US law schools, the American Bar Association through its Section on Legal Education and Admissions to the Bar. And the starting point is the long-observed accreditation Standard 304(g), that approved law schools may not grant credit for courses taken by correspondence study. Nevertheless, the section's Accreditation Committee has approved Temporary Distance Education Guidelines for American law schools. These guidelines authorize law schools to provide some experimental distance learning courses by following the applicable guidelines from the Accreditation Committee. It is also possible to obtain waivers or approvals to establish courses outside the guidelines. From all such courses, the Accreditation Committee will gather information enabling it to suggest permanent standards for distance learning.

This careful and cautious approach is dictated by the ABA's Principles for Distance Education, which stress interaction between faculty and students:

Educating a student for a Juris Doctor degree is professional education of a most distinct variety. It involves more than the mere delivery of information or simply learning facts, history or even logic. During a law school education a student is expected to participate in a learning community whereby he or she will ultimately learn, experience, and develop skills and knowledge that will advance the legal system, society, and his or her career. This law school experience involves interaction with faculty not only in the classroom, but also in other places and at other times. Students also learn from each other by inquiry and challenge, review and study groups. In sum, law school is an educational process in which a student matures with the law and his or her ability to use and develop it[1].

This emphasis on personal interaction between law students and law faculty members, however, must not ignore modern developments:

As new methods of education develop, legal educators must be aware and ready to implement them in order to provide the best possible legal education to the greatest viable student body. In the last few years various methods of distance education have become available and, certainly, more will present themselves in the future. As legal educators we must consider which of these new methodologies provide appropriate legal education tools[2].

Perhaps the most important guideline these experimental courses must follow is under the heading of 'Site of reception':

Experiments in which education programs will be disseminated from one law school and received at another law school will generally comply with the principles of legal education as stated above. Also, if the locale at which the legal education program is received has a law faculty of significant size, a student body of significant size and a library or information resource center of significant size, the program will generally comply with these principles of legal education. Thus, course received at a law school facility from non-law school sites or other educational institutions will generally comply with these principles. It is not necessarily true that a faculty member must be present in the classroom or other reception facility.

On the other hand delivery of course work to a person's home or office would generally not be in compliance with these principles. Similarly, delivery to a site which merely has technical personnel to operate and maintain educational and transmission equipment, but does not have a law faculty, is not in compliance with the above principles. . . Also, because of the special developmental and interactive nature of first year courses, use of distance education for such course work will not usually be approved at the present time under these guidelines[3].

The guidelines also require interactivity between students and faculty, but are silent on the ways that interactivity may be carried out:

'As stated above, interaction between student and faculty is a crucial element to legal education. Thus such interaction will be required'[4].

Consistent with the conservative approach of these guidelines, most US law professors continue to insist on the virtues of personal instruction in a live classroom setting, even when other academics have completely accepted the sufficiency of their mere electronic presence. Several factors are driving that acceptance, which factors legal educators are also beginning to recognize. Thus, the distance learning dialogue in US legal education is being informed by the following realities:

  • Non-traditional learning has become a more commonplace element in higher education;
     

  • Diversity in types of educational opportunities is increasing;
     

  • The number of unique environments where educational opportunities are offered is increasing;
     

  • The concern and demand for equitable services for all students in higher education, no matter where the 'classroom' may be is increasing;
     

  • Technological innovations in transmitting information and delivering courses are increasing;
     

  • In some areas, central campus enrollments are decreasing;
     

  • Higher education is always searching for more cost-effective ways to operate;
     

  • The virtual or all-electronic university has appeared and is rapidly developing, with no physical campus of its own[5].

5. Advantages and Disadvantages of Distance Learning

With such restraining guidelines from the American law schools' official accrediting agency, it is not surprising that distance learning projects in legal education and distance learning dialogue in legal literature are barely launched. As expressed by the authors of the current definitive annotated bibliography on the subject:

[T[he legal literature on distance education has yet to unfold in this country. Other countries such as the United Kingdom, Australia, and South Africa, however, have long embraced distance education... [A] small [26 annotations] yet nascent body of literature which has emerged in the United States in the last couple of years unmistakably indicates a growing interest in distance education by the nation's law schools[6].

In general, the potential advantages of distance education that could be especially meaningful to American law school faculties may be summarized as follows:

  • Fewer faculty members may be able to reach and teach more students;
     

  • The absence of an instructor may impel students to more rapidly develop independence in exploring and analyzing legal issues;
     

  • Distance learning enables easier access to a broader range of relevant expertise (the best example being able to electronically 'borrow' an expert faculty member from another law school, if one's own faculty is temporarily missing the needed expert);
     

  • Distance learning facilitates students communicating with students at other law schools, injecting a stronger element of healthy diversity into the overall educational experience[7].

The most cogent statement of distance learning's principal disadvantage is stated below:

The most obvious is the loss of proximity. When the instructor and the students are simultaneously physically present in the same room, the interaction has an immediacy and spontaneity that even the most sophisticated video conferencing systems cannot approach. The instructor and students are more readily responsive to each other, and group dynamics can lead both the instructor and students to insights that might not occur, or would occur less frequently, outside the group. Further, a teacher is not merely a conveyor of information; a teacher - a good one, at least - is also a model of intellectual and professional virtues such as responsibility, thoroughness, and tolerance. These virtues are most effectively on display when teacher and student are present in the same classroom[8].

6. Summary Evaluation

Without attempting to summarize and reconcile all of the competing considerations impacting on decisions to develop distance learning, I conclude with one guide that seems more important than them all. I accept the preference for live instruction. I also accept the wonderful opportunities proffered by distance education to extend instruction to persons and places where otherwise no instruction at all would be available. This leads me to conclude that distance learning should not be employed in place of already established live instruction programs, either actual or readily available. Instead, the best use of distance learning programs is to extend the instruction to situations where otherwise no instruction at all would be available. I leave the attribution of academic credit and progress toward various academic degrees and certifications under those disparate circumstances to those wiser than I.

7. Exploiting Technology Outside the Distance Learning Paradigm

The debate over distance education in American legal education, and eventually a sensible accommodation of the competing viewpoints will emerge. It is beyond the purpose of this article to forecast how or when that will occur. Until it does occur, however, American legal educators are busy integrating as much technology as possible into their pedagogy. Each of us teachers must experience our own epiphany about how this will occur in our professional lives. The challenge for older faculty members may be acute.

All of this technological advancing has happened so swiftly that senior persons such as myself, who will never be as computer literate as our children and grandchildren (or even our younger siblings), are tempted to simply stand aside and watch it all in wonder. Yet, in the concluding section of this article I convey the conviction that even modest attempts by us bashful novices to incorporate these technical capabilities into our professional routines can be startlingly effective and can open up remarkable resources to our students, enabling them to learn more efficiently and proficiently than ever before. I will cite my own experience as a model, not because it represents the furthest advancements of technology in the American law school classroom, but because it represents a modest effort, well within the reach of even ordinary, traditional law teachers.

8. Creating a Paperless Classroom Experience in Law School

First of all, I give you a bit of background. The law school at Brigham Young University is relatively young, having opened its doors in September, 1973. With outstanding support from its sponsoring institutions and a strong appeal to students who were loyal to those institutions, it quickly moved to the leading ranks of American law schools. Today, in terms of students admissions, it is about the 12th most selective law school of the 180 American law schools. Each one of the 150 new students admitted in each year's entering class is required to bring a laptop computer meeting certain specifications. When they arrive, each is assigned a study carrel solely for his or her own use, and which carrel is so wired that when the student laptop is programmed and plugged in, the student has total electronic connection with the institutional and outside cyberworld. By this I mean that each student has fingertip and cost free access to all appropriate law school, university and worldwide databases and search engines. The student carrels are located in the midst of the law library bookstacks, but the students may also search from their carrels the LEXIS and WESTLAW databases, automated academic library catalogs, both law and general, throughout the US and around the world, and, of course, complete access to the internet.

The wonderment of this overwhelming wealth of resources[9] has, I fear, sometimes caused us to overlook some of the more mundane internal applications of these assets which can make a dramatic difference in how well we do our traditional teaching and training work in the law school. May I illustrate:

Our law school now has a web site, which is now a completely common thing to do. From this home page on the law school's web site, we provide links to huge amounts of institutional information that we have traditionally provided in print form. The electronic version is, of course, more effectively kept up to date. From here I click on the link for curriculum, and from there to the link for course materials, which brings us to a current list of courses offered at the law school during the academic year. Each course has its own 'home page,' which is the gateway to any and all of the materials the professor would normally provide to the students. For my first year property law course I have provided links from the property 'home page' to the course syllabus, the course schedule, past final examinations (with model answers and grading sheets, which the students may use as practice exams), the American Bar Association's Model Rules of Professional Responsibility (which we address several times during each semester), and some additional materials I have written to give assistance with the especially challenging subjects of future interests and the rule against perpetuities, among others. I also provide readings in addition to our usual casebook. These are taken from my own publications, which minimizes plagiarism and copyright problems, and are provided here in full text and footnotes. For almost every class session I require the students to complete a comprehension review, consisting of focusing their class preparation on a series of review topics, and then responding to several questions about the most important subjects covered during that hour, answers to be submitted a few hours after the class session is conducted. The comprehension reviews also function as a study guide for examination preparation.

None of these materials are provided to the students in paper form. The entire content of the course, other than the casebook, is laid out before them and available for their perusal right from the beginning of each semester. The comprehension reviews are submitted and corrected by a teaching assistant, and this is currently done in paper form, but all of this can easily be done and likely will in the future be done electronically. All of this is provided to the students without charge, and its provision is cost-free to the institution. Anybody may access this material from any place in the world where they have an internet connection.

Two further illustrations show how expansive is the range of materials and benefits made available by use of these web pages. In my legal history course, in addition to the course schedule and syllabus (which is quite detailed in this case), I provide the full text of all the assigned readings, as well as some supplemental, optional readings, on line, with copyright permissions taken care of, so once again students need not purchase a textbook or other print materials for the class, and they have full access to all of the semester's reading materials. In my advanced legal writing course, all of the assignments and exercises are posted on the web page for this course, along with some enrichment materials, and this has enabled some of the more enterprising students to work ahead and at their own pace. This easily accessible information also enables students to decide more intelligently if they even want to take the course in the first place.

In addition to all of these rather mundane but essential postings, these facilities offer the capability of presenting a huge array of graphic material. I love to take photographs of sites where some of the leading cases that we study took place. I can present these photos, or digital camera and camcorder images and even video clips on a large screen before a large class, if I want to spike up student interest in this way.

The same internal networking arrangements that make these resources so easily and inexpensively available to the students also open one other facility that is changing the way students and teachers interact, and that is e-mail. Although I stay after class to answer questions, and I keep office hours for the same purpose, what has hugely increased each year is the number of e-mail messages I receive from students who are using their laptops while studying at their carrels. It's not that we're that far apart. My office is on the fourth floor and their carrels are in the library on the third floor, but the convenience of their being able to pose their questions without having to locate me or disrupt something else I am doing is very significant. I have had to make only a little change in my routines to get into the habit of checking my e-mail frequently and responding immediately to the students' law-related questions. These are wonderful teaching moments, and the students are further encouraged to expand their curiosity and generate even more questions[10]. As e-mail communication grows, it may make sense to arrange for all members of the class to receive copies of questions and answers transmitted between students and teacher and teaching assistants. At the same time, all participants need to guard against unnecessary loss of personal interaction.

9. Some Computer Use Guidelines

As technology becomes a more universal part of higher and professional education processes, balancing such competing values grows in importance. A recent article on teaching law with computers closes with 'six questions to guide the choice of technology,' which questions seem to give appropriate weight to pedagogical considerations:

(1) Is there a clear pedagogical rationale for using the technology? Making the rationale clear to yourself - and your students - leads to optimum use.

(2) Have you integrated the technology into overall pedagogical plan in a way that avoids information overload?

(3) Can you master the technology to the point where you can use it easily and without distraction?

(4) Is the failure rate of the technology law enough so that it promises to be relatively trouble-free in the classroom?

(5) If and when the technology does fail, can you quickly and easily arrange your plans to compensate for the failure?

(6) Do you have a reliable, fairly current computing environment, including a computer network and competent support staff in adequate numbers?[11]

10. Conclusion

Officially, legal educators in the United States remain ambivalent and tentative about distance learning. Even with technical capability available and on hand in most cases, the broad philosophic commitment to distance learning does not seem to be emerging among either the professional associations nor among individual professors. Nevertheless, even while waiting for that to happen, significant enhancements in traditional programs of legal instruction are occurring through adoption of and adaptation to technology. Law schools are providing their students with fully connected work stations and are requiring or strongly recommending that incoming students arrive equipped with good quality laptops. This enables professors to publish all class materials, including publications in full text, on web sites; to distribute and receive assignments; to incorporate more readily into their teaching items of current scholarship, legislation and jurisprudence; to negotiate questions and answers, thus expanding exponentially the 'teaching moments'; and, of course, to introduce a full audio-visual element into their classroom teaching. If they can make progress in this effort, while still preserving the precious occasions for live interaction with students and colleagues, and to recognize and adapt to the limits and restraints of each institution's technology environment, I foresee steady, incremental but enormously beneficial changes ahead for the way legal education is conducted in the United States.

Footnotes

1. Section of Legal Educ. & Admissions to the Bar, Am. Bar Ass'n, Memorandum D9697-59: Distance Education (May 6, 1997) (also at <http://www.abanet.org/legaled/distance.html>).

2. Id. at Section 1.

3. Id.

4. Id. at Section 5.

5. ACRL [Association of College and Research Libraries} Distance Learning Section Guidelines Committee, 'ACRL Guidelines for Distance Learning Library Services', 59 College & Research Libraries News 689-694 (1998) (also available at <http://www.ala.org/acrl/guides/distlrng.html>).

6. Arturo Lopez Torres and W. Clinton Sterling, 'Will Law Schools Go the Distance? An Annotated Bibliography on Distance Education in Law', 91 Law Library Journal 655-692 (1999). Included in the 26 annotations related specifically to law schools is Phil Huxley, 'The LL.B. (Distance Learning) Degree of Nottingham Law School: Origin and Development', 29 Law Librarian 204-206 (1997).

7. Id. at 164-165.

8. Id.

9. Perhaps the most recent and striking example of technology-equipped law school classrooms in the US is found in the David J. Sargent Hall of Suffolk University Law School in Boston, Massachusetts. This law school administration, while acknowledging that its new building 'incorporates state-of-the-art technology in facilities that are extremely attractive and highly functional', has retained a proper focus in its expressed hope that they can now better achieve their 'educational and academic aspirations'. Cover letter from Dean Robert H. Smith, April 2000.

10. See Jane Elizabeth Zanglein and Katherine Austin Stalcup, 'Te(a)chnology: Web-Based Instruction in Legal Skills Courses', 49 Journal of Legal Education 480-503 (Dec. 1999).

11. Richard Warner, Stephen D.Sowle, and Will Sadler, 'Teaching Law with Computers', 24 Rutgers Computer and Technology Law Journal 107, 171 (1998).

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