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JILT 2001 (3) R Woods - Footnotes and References

'Order in the Virtual Law Classroom...'

R Woods

Footnotes and References

1. California permits unaccredited law schools to operate within the state, but this means that students who graduate from the law school at Concord University can only take the bar exam in California. Concord University's Law School is by far the boldest attempt at online legal education. It primarily uses video lectures along with professor-led discussion groups to facilitate online learning. Students work on the same types of assignments they would work on in residential programs and submit them via email. See also, 'The Concord Method'. Concord is the world's first internet-based law school. It started in 1998 with 180 students from Alaska to Switzerland (Mintz, 2001). Abraham Lincoln University in Los Angeles offers the J.D entirely through correspondence (snail mail) but uses downloaded audio lectures via Real Audio. The law school at William Howard Taft University in Santa Ana, California, offers the J.D via correspondence study as well but does not appear to utilize any internet-based delivery strategies like Abraham Lincoln and Concord University. See, 'The Witkin School of Law, Instructional Policies and Methods.

2. The ABA's hesitancy is surprising since research supports that the achievement on certain tests administered by course facilitators tends to be higher for students at a distance than for students in residential programs. See, e.g; Souder, 1993. At the same time, there appears to be no significant difference in regard to positive attitudes toward course material between students involved in distance versus traditional education (Martin and Rainey, 1993). Furthermore, the ABA's suspicion in regard to the effectiveness of distance education is surprising when one considers the numerous studies that have confirmed the effectiveness of distance education learning. See also the work of Dr Thomas L Russell, Director, Office of Instructional Telecommunications, North Carolina State University, who provides a summary of 248 studies between 1928 and 1996 comparing the effectiveness of distance (online) versus traditional delivery.

3. See ABA Memorandum, 1997. Note, however, as Dan Carnevale (2001) observes, there is a flawed assumption in attempting to make the distance experience the same as the on-campus experience: It's very common whenever a new medium comes out to compare it to the effectiveness of either face-to-face instruction or older media, because we're looking to answer the quality question: Is this is as good as or better than other techniques or approaches we have used?… . The primary assumption, which is flawed, is that the instructional effectiveness of each medium studied is constant across all content and all students. You're lumping all the students together, and you're ignoring their qualities and attributes as well as the qualities and attributes of the content. So by treating students, content, and instructional content as homogenous, we are ignoring some very important variables that we know for a fact do impact learning … [for example] cognitive styles, learning styles, instructional strategies, different methodologies for teaching particular levels of objectives and different domains.

4. Key characteristics of the Socratic method are discussed in greater detail below, infra, section titled, 'Traditional Law School Delivery Methods'.

5. Barry Courier, telephone interview by author, 18 January 2001 (emphasis added).

6. As Robin Widdison (1996) observes: 'Contrary to all the dire predictions, most academic staff had not been made redundant by the evolution of new generations of learning technology. Not so far, anyway'.

7. Most first-year courses depend primarily on the Socratic method to teach students to think like a lawyer, that is, to critically read and analyze case law. This leads some to conclude that law schools will offer most of the first-year courses in the traditional time-dependent/place-dependent manner, but may move to a more time-independent/place independent delivery model for some second and third year courses. See, Hoover, 1999. But as argued throughout this article, there is no need to limit delivery to second and third year courses if the key characteristics and objectives of the Socratic method and legal education as a whole can be approximated sufficiently in the online environment.

8. But while schools may indeed make such offerings, the current guidelines indicate credit cannot be given except in very limited circumstances. In any case, no student may earn more than three credits toward his or her degree via distance education. Barry Courier, telephone interview with author, 18 January 2001.

9. Synchronous computer-mediated communication is that interaction between parties that is simultaneous. For example, live chat rooms or live lectures using video conferencing technology (Glossary of Distance Education Terminology). Internet-based education that relies primarily on this form of delivery is referred to as time-dependent/place-independent learning, or 'extended classroom learning', (Norwood, 1995). The synchronous model is a primarily live, real-time delivery model very similar to live satellite or videoconferencing so popular in the 1980-1990s. Students gather in several campus locations across the country for real-time lectures. Instead of using satellite technology, online students receive lectures with the aid of desk-top video cameras or audio via the world wide web. Students are then assessed with tests and may even be required to participate in live chat or threaded discussion forums. Synchronous communication provides immediacy, faster problem solving, and increased opportunities for developing affective communication. As discussed throughout, ABA accredited law schools experimenting with J.D courses appear to rely primarily on a synchronous model of Internet-based course delivery with asynchronous components. The major Internet based synchronous tools are: (1) Internet voice telephone, (2) Video teleconferencing, (3) Microsoft's NetMeeting, (4) CuSeeMe, (5) Quicktime, (6) Text-based Chat systems, for e.g., Quarterdeck's Global Chat, WebChat, EarthWeb's fully Moderated Chat service, (8) Text-based Virtual Learning Environments, for example, Moos, University of Alberta's Walden Pond, Diversity University, (9) Graphical Virtual Reality environments, e.g; Palace , Alpha Worlds, Microsoft's Comic Chat, (10) Net-based virtual auditorium or lecture room systems, e.g; Centra Software's Symposium system, Place Ware's Auditorium system, Open University of the UK's Knowledge Media Institute's Stadium. (Anderson T, 1999).

10. Asynchronous computer-mediated communication is that interaction between parties that does not take place simultaneously. For example, electronic mail and voice mail, or threaded discussions in a discussion forum (Glossary of Distance Education Terminology). Internet-based education that relies primarily on asynchronous communication is referred to as time-independent/place- independent learning, or 'classroom free' learning ( Norwood, 1995). In the asynchronous model students do not meet at a specific time or in a specific place, and no requirements for synchronous meetings are included as part of the course. Instead, instructors use web-based educational platforms, such as, to post course syllabi (complete with assigned readings and assignments), lectures and other course content in various forms. Following lectures (prepared in a variety of formats, see discussion related to lecture, infra, section titled, 'Seven Basic Instructional Strategies for Law Online'), and after doing the required readings, students are then directed to Discussion Boards where threaded discussions and other asynchronously-driven collaborative activities related to each week's assignments are facilitated by the instructor or instructional team members. (NOTE: see Fairhurst, 2000, for a discussion of how Blackboard can be used to facilitate collaborative learning in legal education). Students submit individual and group assignments via email and take computer-generated quizzes and exams online. This model seems to be part of a growing trend. See Mayer, 1999. The Harvard Law School, through the work of The Berkman Center for Internet & Society, offers several free courses over the Internet utilizing this basic approach. Harvard law faculty also use the Center to supplement activities in traditional residential settings, a common practice of many law schools. See, 'Berkman Center for Internet & Society, Related Courses'. Teaching modules for first year students are being developed as a supplement to residential courses. Using asynchronous, Internet-based tools to supplement residential learning does not make such learning part of the asynchronous model, since the primary instruction is synchronous in that it occurs face-to-face in the residential setting. For a more detailed description of Harvard's efforts, see 'The Bridge Project'. An asynchronous model of Internet-based instruction provides scheduling flexibility that allows student to pursue legal externships or other practical work opportunities and, as previously discussed, provides critical reflection at more sophisticated levels than is possible in the face-to-face setting. See, e.g; 'Hot Wiring Legal Ed', 2000.

11 . As early as 1996, California Western School of Law in San Diego (see Leskovac, 1998, Geist, 1997), and the University of Idaho, (Smith, 1996 ) were conducting experiments in online course delivery via video and teleconferencing.

12. Students can earn an LL.M in International Taxation entirely within the online setting. The Consultant's guidelines allow post J.D programs such as Regent's Online LL.M to be treated differently from traditional J.D programs. It is thus possible for law schools to offer the LL.M entirely in the online environment. The reasoning behind the different treatment of post J.D programs, according to the guidelines, is that by the time students reach post-J.D work, the necessary 'maturation and educational process involved in a J.D program have already occurred for the student' (ABA Memorandum,1997 ). The ABA, however, does not operationalize or otherwise objectify what such 'maturation' involves.

13. Prior to this offering Regent included, like other law schools, Internet-based components to their on-campus courses. For example, discussion boards were created for on-campus courses that allowed for ongoing discussion apart from regular class hours. Participation may be required as part of class participation, or may be optional.

14. On the international front, the law school at Strathclyde University, Scotland, offered the first-ever LL.M program over the Internet in 1994. One can earn an LL.B from the University of London through the world's first virtual LL.B program, through Semple Piggot, Rochez. Note also that law degrees have been awarded by correspondence for many years from the University of London External Degree program, and the British Open University, together with the College of Law offers a similar law degree, (Paliwala, 2001). A list of other online law degrees and certificate programs offered by law schools in common law jurisdictions can be found on the Jurist website.

15. One such project is Coventry University's IOLISplus project. IOLIS is a Windows-based, CD-rom driven, self-paced, computer assisted learning package developed by Warwick University, that includes self-test questions, ongoing online dialogue, a collection of workbooks, and a very large web-interactive resource book. IOLIS was designed, in part, to help legal educators determine how to enhance 'lawyer' skills necessary to the effective practice of law, for instance, 'problem solving, critical thinking and evaluation of argument' (Grantham 1999, 2001, Widdison, 1999).

16. Tom Diggs, interview by author, 23 February 2001. Moreover, as Rhode (2001 ) observes, the same can be said of professors teaching in residential programs: 'most law professors get no formal training in teaching… . Nor have legal academics show much interest in building on broader educational research about how students learn' (p.B-15). As a means of quality control, some institutions offering online programs, for example, Indiana Wesleyan University, require all online instructors to go through a basic course on online course design and delivery before teaching. This is required of every faculty, no matter how many years of online teaching experience he or she may have. After all, there's more to teaching online than simply learning how to navigate the course management platform.

17. See discussion related to research design and data collection, infra, 'Bringing it all Together and Planning for the Future'.

18. Arthur D Smith (1996) asked this question in his article, 'Virtual Law School - Does it Work?,' 12-14, although he answers it in a much different way than is answered herein.

19. For example, Johnson (2001b) remarks that: 'it is unclear that law schools can teach legal skills through an asynchronous (time-independent/place- independent) model'. However, he makes these comments without the benefit of empirical testing or without the benefit of reviewing other online settings where such skills training is indeed taking place.

20. Demonstrating the potential for skills training in the online setting is important since over the past several decades there has been growing concern among law professors and administrators over adequate skills training for law students. See, Silecchia, 1996, Uphoff et al, 1997.

21. Accordingly, a student will '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' (ABA Memorandum, 1997).

22. Ibid. See also the discussion related to the use of small groups to facilitate online discussion, infra, Section 2.

23. Note that nowhere do the standards imply that the Socratic method is or should be the only method to accomplish these objectives.

24. Ibid. In this sense, the learner is no longer seen as a 'passive recipient of information'; instead, he is 'a self-determining agent who actively selects information from the perceived environment, and who constructs new knowledge in the light of what that individual already knows,' (LeBrun and Johnstone, 1994).

25. See, Sheppard, 1997. See also discussion related to traditional law school method, infra.

26. At the same time, note that this 'guess what I'm thinking' approach (Rhode, 2001) is linked to an authoritarian and competitive dynamic (p.B-15) that can produce negative effects on the learning process. In the online setting, more importantly, this may work against the collaborative learning environment so necessary for quality learning. Law professors should thus be conscious of avoiding the overly combative exchange stereotypically associated with the formal Socratic dialogue and balance positive encouragement with critical responses. To be effective online, professors must build 'supportive' communication climates in the virtual classroom. See discussion related to facilitating online discussion, infra.

27. Black letter law is 'an informal term indicating the basic principles of law generally accepted by the courts and/or embodied in the statutes of a particular jurisdiction,' (Black, 1990).

28. According to Diana Laurillard (1993), quality online exchanges in threaded discussions are discursive. This means that each learner goes through a two-step process of interaction: first, he attempts to comprehend or understand the views of other participants in the discussion board, second, he then attempts to modify his postings in a way that helps the other participants better understand his views. This series of exchanges, or 'constructions,' if you will, is part of the construction of knowledge valued by constructivists. This exchange is similar to the type of Socratic dialogue that occurs between law professor and student in the face-to-face exchange. The student attempts to demonstrate his understanding of the reasoning behind a particular court's decision as he modifies his responses to the professor's repeated probing and questioning.

29. In constructivist learning environments, open-ended assessments are preferred over traditional (selected-response) assessments. Since emphasis in constructivist environments is on relationships, collaboration, inquiry and invention, over-reliance on tests that emphasize factual recall is not consistent with the nature of the learning that takes place in these environments, (Gergen, 1995, Salomon and Perkins, 1998).

30. Research reveals that the nature of the computer-mediated communication generally appears to both enhance and inhibit meaningful relationships, regardless of whether this occurs in educational or other contexts, Rheingold, 1993, p.3). The nature of online and off-line relationships has been compared (Parks and Roberts, 1998), and whether online relationships are real or not has been explored (Moon and Ness, 1996). Some scholars suggest that the current, predominantly text-based, interactions that take place on the Internet encourage 'shallow, impersonal and often hostile relationships' because vocal characteristics, facial expressions and physical appearance factors are 'filtered out' (Parks and Floyd, 1996, see also, Walther, 1992). Others argue that since computer-mediated communication reduces time and space barriers, and diminishes such inhibitors to communication as status, gender, race and other physical appearance factors, more intimate and sincere relationships can be formed (Parks and Floyd, 1996, Baym, 1995, Sproull and Kiesler, 1991). A number of scholars have reported how those involved in computer-mediated communication create additional communication cues, in the form of icons and textual cues, to lessen the barriers to developing relationships that the medium imposes (Walther, 1996, Walther, et al 1994, Walther and Burgoon, 1992, Reid, 1991 ). As such, computer-mediated communication may be no more than an 'option for social contact' among those who prefer communicating face-to-face, (Chesbro and Bonsall, 1989, p.221).

31. At the same time, Rourke et al (1999 ) suggest the need to discover an ideal level of social interaction that actually might be detrimental if it is exceeded.

32. Course structure, class size, feedback and previous experience with computer-mediated communication were found to influence online interactions (Vrasidas and McIsaac, 1999).

33. The author conducted a recent study that attempted to determine the optimal number of personal interactions necessary to maintain a supportive communication environment (Woods, 2002).

34 . Regent University, Residency Requirements, Center for Leadership Studies. This is an option for law schools in the future as they consider how to best incorporate online courses into the overall curriculum. Cohorts of online students could begin their first year of law school with a month-long summer residency designed to develop relationships with faculty and other students. This also affords an opportunity to take part in the residential classroom experience, which can be used to set the groundwork for what will happen in the online setting. For second and third year students, the residency may be scheduled for a shorter time period and allow for courses such as trial practice, appellate advocacy, or negotiations offered in modular format.

35. This provides the face-to-face interaction for modelling professional values and teaching skills that some critics insist must exist to some degree (Johnson, 2001b). The author discusses later how values can be built online using threaded discussion in ways that supplement training that might occur during on-campus summer residencies. See discussion related to Kohlberg's model of moral/cognitive development, infra (1976). See also Widdison, 1996.

36. As for the nature and quality of communities that emerge through online interactions, some contend that they promote greater self and collective growth, and that harmony and inclusiveness are fostered (Cutler, 1996, Featherstone and Burrows, 1995, Jones, S G 1995). Others argue that they are illusory (Robins, 1995, Meyrowitz, 1985, van Dijk, 1997, Ebersole and Woods, 2001) and fragmenting. Shields (1996) suggests that Internet actually undermines the 'psychological well being' of users, and that even moderate users experience higher levels of depression and loneliness than less frequent ones. This indicates a need to consider 'social factors in terms of how you design applications and services for technology' (Harmon, 1998).

37. This is not to be confused with self-directed learning, which is a valuable aspect of effective online delivery. Self-directed learning is defined by Conner, et al (1995) as: 'learning initiated and directed by the learner' (p.62). More specifically, it includes self-paced learning, independent learning, individualized learning and self-instruction. Knowles describes self-directed learning as usually taking place 'in association with various kinds of helpers, such as teachers, tutors, mentors, resource people, and peers' (Knowles, 1975, p.18). Whatever terminology is used, self-directed learning places the responsibility for learning directly on the learner. Independent learners are those who 'take the initiative in learning (proactive learners) learn more things, and learn better, than do people who sit at the feet of teachers passively waiting to be taught (reactive learners)'… . They enter into learning more purposefully and with greater motivation. They also tend to retain and make use of what they learn better and longer than do the reactive learners' (p.14). Similarly, 'learners participating in self-paced learning programs work harder, learn more, and retain more of what is learned ' (Kemp et al, 1994, p.143). Internet-based learning clearly supports the self-directed learner in pursuing individualized learning activities with a certain degree of self-pacing. This is especially true in the asynchronous model, where learners work at a convenient time and pace and can visit any number of libraries or archived databases and engage in dialogue with a host of legal professionals from lawyers to judges. Such activities lend themselves well to Legal Research and Writing courses that are designed to build critical writing and research skills lawyers need to effectively practice law. On top of individualized activities, the self-directed learner can even build writing skills in a collaborative fashion with fellow students and may publish on web pages with faculty.

38. See discussion related to self-directed learning, supra. Additionally, as mentioned earlier, the ABA guidelines emphasize the importance of collaborative group work in the legal education experience (ABA Memorandum, 1997).

39. 'Assessment is involved in the classroom when you engage the students and see the look of befuddlement on their faces...' (Carnevale, 2001b).

40. Summative assessment essentially means awarding grades for student products (Orlich et al, 1994, pp.29-30). When they are used for promotion, placement, certification and accountability, they are referred to as 'high stakes' (Rovai, 2000).

41. Instructors tend to use formative assessments to improve learning, not to provide quantifiable evidence for grading students. Formative assessments provide immediate feedback and help professors determine whether problems are emerging in the learning process (Orlich et al, 1994, pp.28-29). For a discussion of summative and formative evaluations in international legal education settings, see Fairhurst, 1999.

42. Oral case briefing is an example of formative assessments in the traditional law school setting. Faculty can quickly identify and correct problems with students' reasoning as the Socratic exchange unfolds. Instructors check the 'small steps' along the way as they dissect the facts, issues, rules and conclusions of each case. Each phase of the IRAC briefing process—where the student identifies the facts, issues and rules of law of each case before making application and drawing conclusions—affords instructors opportunities to check selected items and assess student progress. Importantly, when students realize that learning activities are being monitored continually throughout the semester in a formative manner, they tend to be more responsible in the learning process, which can help build a more positive and supportive learning environment (p.29), (Cf. Rhode, 2001 , p.B-15).

43. Note that simulations of the kind discussed in relation to role plays, projects, guided design, and the like (see discussion infra) are significant in that they integrate more skills training into the overall curriculum and allow professors to build into students a wider range of skills than is possible using the traditional law school delivery methods (Rhode, 2001 p.B-15).

44. Performance assessments have been associated with a standards model, which emphasizes a variety of ways for students to demonstrate their mastery of course objectives. A standards model, in comparison to other models, looks at what a student does, versus what he or she knows, in order to determine whether course objectives have been satisfied (Taylor, 1994).

45. See discussion related to self-directed learning, supra.

46. The specifics related to several of these performance-based activities are discussed in Part II, 'Multiple Instructional Strategies for Effective Delivery of Online Legal Education: Constructing Multiple Instructional Strategies for Legal Education,' infra.

47. Students demonstrate their knowledge and skills by reciting cases along the basic IRAC formula—Issues, Rules, Application, and Conclusion—in a Socratic exchange with the instructor (Vandervilt 1981, pp.22-23). These exchanges are treated formatively in that students do not typically receive grades for 'briefing,' although they may be considered part of student participation grade.

48.The summative assessment in most law school classes is 'high stakes' and comes in the form of an essay exam similar to the format found on most state bar exams. In addition to student participation grades, which constitute a small percentage of the students' overall grade, the final exam is often the student's only graded product throughout the semester.

49. The Consortium of College Testing Centers (CCTC) was formed to support proctored testing at decentralized locations throughout the United States. Students can take exams in paper-pencil and even online formats in some locations. See also Carnevale, 1999a.

50. IntegriGuard provides free and fee-based services to help instructors detect and prevent plagiarism. One of its services,, checks for matching text in other writings on the Internet and sends an email report to the instructor. Student writings are added to a database against which future comparisons can be made. Another one of IntegriGuard's services,, is a free plagiarism check that allows instructors to analyze suspicious text for originality. Instructors then receive a report via email of their results. is another online service available to instructors and uses 'Document Source Analysis,' which employs 'a set of powerful algorithms to create a 'digital fingerprint' of any text document'. For a more detailed discussion of these and other sites, see Carnevale, 1999b. A recently developed service for detecting digital plagiarism is . Of course, the services just listed can also be used to detect plagiarism by students in on-campus courses.

51. For this reason, as well as others discussed later, instructors would do well to include asynchronous exchanges. These exchanges can serve as an 'electronic record,' or sorts, that may be used at a future date to substantiate a claim of plagiarism.

52. Most course management, web-based platforms, such as E-college and Blackboard, have built-in live chat functions. Others, such as WebBoard, even have pagers that enable instructors to identify which students are online and page them instantly for live chat.

53. Many law professors give multiple-choice exams similar to the long-fact pattern questions students face on the bar examination. Such testing can at times be more rigorous than the open-ended essay format if properly constructed.

54., one of the most popular online course management software platforms, allows two basic options: you can build an online quiz within the course itself, or you can create a pool of questions and then select from those which ones you want to use for that particular course. The pool of questions is then transferable to other courses. The quizzes or exams can be set up for automatic grading of multiple choice, matching, true false, short answer, and the like. For short essays, instructor intervention for the grade is required. WebCT and E-college have a similar quiz/exam generating function.

55. Building in student choice is a critical part of the adult learning process. See, discussion related to self-directed learning, supra.

56. A learning contract is 'a formal agreement written by a learner which details what will be learned, how the learning will be accomplished, the period of time involved, and the specific evaluation criteria to be used in judging the completion of the learning' (Bonnell and Caffarella 1999, p.134). In using learning contracts, instructors seek 'to adapt educational needs to individual student needs, and are a viable option when there is diversity in learner needs and interests' (p.133).

57. Knowles (1999) explains that learning contracts can result in an increase of accountability, since the learning contract provides 'more functional and validated evidence of the learning outcomes' (p.46).

58. For example, learning contracts may provide a deeper involvement by the learner in the learning activities—activities that they themselves have been involved in planning. After learners pass through the initial stage of confusion and anxiety associated with developing a contract, they will 'get excited about carrying out their own plans' (Knowles, 1999, p.46).

59. The instructor might place a model (sample) learning contract (along with instructions) on the web using the 'Course Documents' or 'Course Materials' section provided the course management platform. A separate discussion room in the Discussion Board may also be set up so students can brainstorm ideas for learning contracts. This provides built-in collaboration.

60. For example, in a course on drafting contracts, a learning contract serves a dual purpose. Not only does it provide a clear set of expectations for the learner, but in writing and reviewing the contract collaboratively the learner is 'performing' the very subject matter the learning contract is designed to facilitate. The learning contract can even be designed according to traditional contract sections and headings, use traditional language, and so forth, to further bring the learning activity into the real-world. In a course on negotiations, the class can negotiate certain objectives in accordance with stated techniques presented by the instructor or discussed in the readings. Such activities are critically important since according to some critics, current law school delivery methods do not sufficiently focus on or teach critical legal skills such as drafting and negotiating (Rhode, 2001, p.B-15). Thus, the online setting enables legal educators to develop skills that may not be developed consistently in most residential programs by integrating skills into non-skills courses.

61. The interested reader is encouraged to consult the following: Keefe, 1987, 1991, Reiff, 1992, Dunn and Griggs, 2000, Tileston, 2000, Celli, 1998, Honey and Keefe, 1988.

62. Crockett and Petersons (1990) are among those who have focused on audio tutorial packages designed specially for certain distance courses. They warn that although use of such 'technological interfaces' may increase retention rates and overall learning, they 'should be something that aids, something that does not attract attention and energy to itself' (p.54). Studies such as this one usually have been concerned with the use of taped rather than streamed audio over the Internet.

63. Computer assisted teaching in law schools has been used since the late 1960s. In one early version, the student plays the role of a judge as the computer prints out the transcript of a mock trial complete with direct and cross examination questions. The computer notes when an objection as occurred and asks the students to make ruling on the objection using the keyboard (sustained/overruled). The computer asks the students to say why. The computer responds by stating correct/incorrect (Dutile, 1981, p.146).

64. The use of such computer-assisted technology can facilitate active learning and further help instructors satisfy the basic components of the Socratic method, i.e., feedback, immediacy, participation, critical thinking. See Park and Burris, 1977, p.153, and Henn and Platt, 1977. However, they are limited in the level or sophistication of instructor feedback. They should therefore be used in conjunction with other forms of asynchronous or synchronous discussion formats, which do enable the same if not greater levels of sophistication and flexibility present in live feedback.

65. Fairhurst (2000), (quoting Ehrmann) observes that: 'Communication technologies… can strengthen faculty interactions with all students, but especially with shy students who are reluctant to ask questions or challenge the teacher directly'.

66. Again, the legal education via computer-mediated communication offers opportunities for multi-tasking where critical legal skills are being injected simultaneously with delivery of content. The legal skills noted in conjunction with this footnote have long been considered critical to legal education. See, for example, Silecchia, 1996, pp.245, 247-248, and Friedland, 1996, p.27.

67 . Race also plays a role in learning styles. See, Hale-Benson, 1986. Other cultural variables, such as nationality, can influence learning as well. See discussion, footnote 111, infra.

68. Most men (and some women) seem to develop in discussion formats along an autonomous, separate, or independent pattern. This means that most men engage in a debate-style of interaction. Most women, in comparison, develop along a second pattern or path, which is a more relational, connected, or interdependent path. This means that women prefer more 'collegial' or supportive exchanges. See Belenky et al, 1986.

69. The importance of being aware of different discursive styles is discussed below, infra. See accompanying footnotes.

70. See section below related to facilitation and assessment of small group discussion, infra, sub-section titled, 'Seven Basic Instructional Strategies for Law Online'.

71. For example, The Center for Distance Learning at Empire State College in New York offered a three-month pilot online course that used discussion lists and email. The course was presented totally online and utilized discussion lists and e-mail. The results indicated that the work submitted by the online students 'was found to be superior, both as to breadth of research and quality of analysis, to work submitted by a previous non-computer class' (Azarmsa, 1993, p.138). According to the researchers, the Empire State study supports the idea that effective online education depends upon learning activities appropriately structured and facilitated as well as increased access to additional resources and information (Azarmsa, 1993).

72. 'Most learning activities that teachers use to guide learning in the face-to-face classroom can be adapted for use in the virtual classroom' (Anderson T, 1999).

73. Law professors indeed have 'widely disparate views about the learning process' (Friedland, 1996, p.3).

74. Rhode remarks that the traditional delivery methods in law schools are leaving students with 'personal difficulties that set the stage for problems in their future practices'. It is estimated that '20-40 percent of those who graduate leave with some psychological dysfunction including depression, substance abuse, and various stress-related disorders'. And while researchers might argue that such problems can not be directly attributed to the Socratic method itself, Rhode responds by saying that 'such problems are not inherent byproducts of a demanding professional education; medical students do not experience similar difficulties' ( Rhode, 2001, p.B-15).

75. 'The dominant approach at most law schools is a combination of lecture and Socratic dialogue, with a focus on doctrinal analysis' (Rhode, 2001, p.B-15).

76 . The small group format is used extensively by professors in the skills courses (49 percent reported using it). Role playing is another popular method used in the skills courses at most law schools (81 percent reported using it) (Friedland, 1996, pp.27,29-30).

77. These categories of thinking skills are part of Bloom's Taxonomy, a widely used vehicle to teach higher order reasoning and thinking skills to students. Bloom's taxonomy includes six basic levels: knowledge, comprehension, application, analysis, synthesis, and evaluation (Orlich et al, 1994, pp.109-127). Students begin with a knowledge and comprehension of the substantive law, which form the basis for more complex (higher order thinking) processes as law professors engage students in application, analysis, synthesis and evaluation of existing case law (see, Friedland 1996, p.3). Thus, law professors are engaged in teaching both micro thinking skills (such as application and analysis) and more inclusive macro thinking skills, which include problem-solving and decision-making. (see, Beyer, 1988).

78. The case study method is based on the assumption of a 'unitary, principled system of objective doctrine that seemed or were made to seem to provide consistent responses' (Stevens, 1983, p.55).

79. The e-learning model is a hybrid of the first two models that is primarily asynchronous but incorporates synchronous components to satisfy specific learning objectives, accommodate different learning styles, build critical relationships between faculty and students, and foster online community. This model recognizes as one of its foundational bedrocks the proposition that as faculty incorporate information technologies into the fabric of learning, learning must become more collaborative, more contextual and more active. See Batson and Bass, 1996. Note that some institutions, like the University of Massachusetts, prefer to refer to their online efforts as 'ecumenical' instead of asynchronous or synchronous' (Carr, 2001).

80 . Concord uses video lectures as well. See, footnote 1, supra.

81. See, discussion related to visual/non-visual learning styles, supra, sub-section titled, 'Learning Styles'.

82. NetMeeting is a Microsoft product that allows for both synchronous and asynchronous forms of sharing. The Whiteboard lets you collaborate in real time with others via graphic information. NetMeeting's audio and video conferencing features let you communicate with anyone on the Internet. Live chat lets you conduct real-time conversations via text, with as many people as you like. Additionally, the Microsoft Internet Directory is a Web site provided and maintained by Microsoft to locate people to call on the Internet. This functions like a 'pager,' of sorts, that some course management platforms, like WebBoard, have built in already. Furthermore, file transfer in NetMeeting lets you send one or more files in the background during a NetMeeting audio or video conference. NetMeeting's Program Sharing feature lets you flexibly share multiple programs during a conference and retain greater control over the way they're used. Remote Desktop Sharing lets you operate a computer from a remote location. NetMeeting also affords you the flexibility to send a mail message to a NetMeeting user or initiate a NetMeeting call directly from your mail address book.

83. Note that some, for example, Jones and Scully (1996) question the depth of learning that hypertext can actually promote.

84. See, Geist, 1997 , pp.165-68, 180. Posting too much material on the Web sites may, however, lead to information overload. See, Warner et al, 1998, p.154.

85. Most new PC's can be purchased with a CD-ROM component that lets them save to the CD-ROM. CD-ROM 'burners,' or producers, can be added on to current PCs at a reasonable price.

86. Critics argue that delivery of lectures over the Internet provides few opportunities for active learning (Johnson, 2001b). However, when lectures are designed well in advance and in accordance with sound principles of online delivery as discussed herein, numerous opportunities for interaction are available.

87. Computer-assisted, interactive learning tutorials are not new in the study of law, for example, Computer-assisted Legal Research (CALR) and Computer-assisted Legal Instruction (CALI). See, Park and Burris, 1997, pp.91, 100, Geist, 1997, pp.41,51, Sheppard, 1997, p.637.

88. See, for example, Lodder and Verheij, 1999. These models help build legal argument and critical thinking skills. Follow-up discussion under the instructor's supervision may function as a form of summative assessment or evaluation of the effectiveness of the learning modules.

89. See, Warner et al, 1998, p.162 and Leskovac, 1998, p.306. For an example of video conferencing options, see Interactive Video Conferencing in Distance Education, University of Idaho, Guide No.10. See also the list of synchronous tools listed in footnote 9, supra.

90. For example, following the lecture, students would be directed to specifically designed discussion fora where they would be required to make comments and ask questions based on the lecture. See Norwood, 1995, pp.293,301-03. Students could be asked to provide a one-two page summary of the key points covered in the lecture. These activities could be turned into assessments, for example, as part of a final portfolio, or counted toward 'class participation'.

91. See, e.g; Johnson, 2001a. In this example, speakers made presentations at participating law schools (11 total) and took part in discussion lists with students from those schools following the presentation. The format of the presentation was downloaded text and audio over the Internet.

92. For example, (1) listservs set up for students that deal with a particular topic (asynchronous), (2) asynchronous bulletin board discussion lists, (3) Synchronous communication can be offered by utilizing chat rooms or Multi-user Domains (MUDs) or Multi-user Object Oriented Environments (MOOs). See discussion, footnotes 9 and 10, supra.

93. Multiple modes or delivery platforms create administrative problems in the areas of technical support service. A single system supports co-instructor and team-teaching models. A single system also lets administrators in most cases create an unlimited amount of courses (with relative ease) in order to meet the growing needs of a program.

94. Ibid, p.42. As a general rule, a first time instructor might handle a smaller course, about 15, and subsequent courses might be increased to the regular on-campus size of about 30.

95. Optimal group size depends, in part, on the nature and function of the group. Common sizes for small groups are five, seven, or nine, but a variety of factors must be considered when determining the appropriate size. See, Shepherd, 1964, p.4, Corey and Corey, 1997, p.116. As the size of the group increases, the number of interactions increases, which may increase tension as dominant-submissive relationships develop, and sub-groups may tend to form (Napier and Gershenfeld, 1985, pp.44-45). As a general rule of thumb, an ideal size for small group discussion would be somewhere between 5-7 members (cf, Napier and Gershenfeld, 1985, p.46, Shepherd, 1964 p.4, Goodall, 1990, p.22, Gulley, 1964, p.105). In the online setting, a student responds to assigned questions within his individual discussion group, although he is encouraged to review the discussion occurring in other groups as well. The instructor then participates in each group's discussion, asking questions and probing deeper along the way, and provides a wrap-up of each week's discussion. Commonalities and connections between groups are noted. This approach to facilitating discussion allows not only allows instructors to manage larger class size but to engage in multiple exchanges when necessary and provide detailed feedback along the way.

96. Boettcher (1998) suggests that discussion groups online can be used to encourage students to learn from each other and in the process can help build a sense of community (p.43). In the process of building community online, faculty must concentrate more on leading online discussion and promoting collaborative learning that empowers group learners than course design and lectures (Young, 1997, pp.A26-A28). Instructors must play the part of 'provocateur' instead of 'academician' (Parker, 1999). Rohfeld and Hiemstra (1995, pp.91-104) suggest introducing participants to each other, matching them with partners, and assigning group projects to build group rapport and cohesion. However, some students, accustomed to traditional models or paradigms of classroom instruction, have indicated a reluctance to participate in online discussions and learn from fellow students (Cooper 1999). Therefore, 'student satisfaction numbers are generally higher when faculty have time to communicate with them… interaction with faculty generally creates a sense of personalization and customization of learning' (Boettcher, 1998, p.43).

97. Most students after the first semester drop out of the habit of preparing written briefs, which are usually required, and simply 'book brief;' that is, they write notes in the margins of the textbook that contain the basic IRAC information rather than writing out each brief on a separate piece of paper. Using the online case brief method would insure continued participation in the briefing process, which is used to help build skills students will need as lawyers.

98. Netiquette is 'Network etiquette, or the set of informal rules of [communication] behavior that have evolved in Cyberspace, including the Internet and online services' (Net Dictionary). Examples of netiquette would include: not 'flaming' or attacking individuals with harsh or rude language, keeping replies short and to the point, taking turns when participating in synchronous group discussion, indicating a desire to participate in live chat by typing an agreed upon symbol, being respectful toward others with divergent views, not over-replying or posting too frequently in select discussion rooms, and so forth.

99. Group video-conferencing and desktop video-conferencing are the closest approximations to the actual traditional classroom experience (Leskovac, 1998, p.306). Additionally, summer residencies along a cohort model can supplement online case briefing in its various forms with live demonstrations of these skills.

100. In the group mode, all groups could be required to attend the scheduled chat time, at which time the instructor would select a specific group to engage in live dialogue. Other groups would observe, but not participate unless called upon. As a variation of this mode, one group could be called upon to provide the facts, another the issues, still another the rules of law. This 'all-group' format adds to the public pressure and immediacy one might feel in the residential setting. Following the briefing, each group could be directed to an assigned asynchronous discussion room or live chat with other group members. Of course, an audio or video version could also be experimented with in the group mode as in the individual mode.

101. See discussion, supra , in sub-section titled, 'Assessment'.

102. For example, if each student is required to respond in the small group setting, it allows more students to participate than ever would be possible in the residential setting. In the typical law classroom, given the average size of most law courses, students may be called upon to brief two to three cases at most during a given semester. Participation thereafter is usually voluntary with a handful of students dominating discussion time. More introverted students will not participate unless called upon by the professor, despite any damage this may have on his or her 'participation grade'. Since the final exam (along with the mid-term in some cases) garners the overwhelming majority of weight, students can perform exceptionally well in most law school courses during the first and second year without participating any more than when called upon.

103. See, Geist, 1997, p.170. See also, Rhode, 2001, p.B-15. Also, note how easy it is to encourage and support reflective interaction in the asynchronous discussion mode. The quality of exchanges can occur at a more 'sophisticated level' ('Hot Wiring Legal Ed', 2000). This is not the typical expression in most residential exchanges, where discussion tends to be spontaneous. See also, Harasim, 1989.

104. See, discussion, infra, related to apprenticeship and externships, sub-section titled, 'Apprenticeship (Mentorships, Externships, Clinics)'.

105. The method helps 'facilitate legal analysis and critical thinking' (Friedland, 1996, p.30).

106. This type of role-play might also exist in a virtual reality, non-conferencing mode. For example, see Widdison, 1996.

107 . Rhode (2001) observes that current methods for delivering legal education in the residential setting do not, 'despite recent improvements, … focus sufficient attention on practical skills such as interviewing, counselling, negotiating, drafting, and problem solving' (p.B-15). Many of the instructional strategies described herein are uniquely designed to enhance such practical skills.

108. See the discussion under the section titled, 'Learning Styles', as it relates to gender, supra.

109. Gender differences in discursive style should not diminish the 'equalizing' benefit provided by internet-based educational opportunities as it relates to gender, geography, or physical handicapping. As McComb explains, group work via computer-mediated communication 'equalizes control among participants, (providing) identical access to and control of the CMC environment' (McComb, 1994, p.165).

110. Use of a discussion rubric similar to that found in Rovai (2000) can help foster equity in online discussions by establishing standards for interaction.

111. For instance, the discursive pattern of American English is typically 'linear deductive' or 'general-specific'. This pattern focuses on the 'bottom-line' or getting to the point and expects all information offered in the discourse to either support or refute the 'point' (Oi and Kamimura, 1995). Japanese discursive styles are more 'circular' and flexible than linear. Communicators offer repeated, polite hints that will show the listener they way to the point. See e.g; Dodd, 1998, pp.46-48. Opening exercises during the first week of class where students offer brief biographies and other culturally relevant information may help bring awareness to differences before in-depth discussion begins. A comment by the professor following this opening exercise as it relates to subsequent discussion could be made as a class announcement or through email. In any case, the instructor should model awareness and sensitivity in his interaction with students at all times.

112. Learners have come to expect 'world class service and user friendliness' in the education processes (Dolence and Norris, 1995, p.46).

113 . See also the discussion related to learning styles, supra, in the sub-section titled, 'Learning Styles'.

114. As for frequency of interaction, facilitators should not dominate the interaction and should not enter the threaded discussions too soon. To avoid feeling too overwhelmed, the instructor should let the dialogue build to its natural progression rather than immediately responding to questions, allowing other students to respond to other students first. Discussion should be frequently monitored and quality posts should be identified for additional question and answer using the Socratic style. In this way, discussion can function like a mini-tutorial or seminar. The instructor not only determines the topic and activities to be discussed by focusing in on a specific thread, but he also encourages substantive interactions on the issues presented and helps shape the conversation toward challenging the conclusions drawn by the court. Throughout, all students should receive some form of feedback and summaries of the week's discussion (Hiemstra, 1998). Students could be required to provide summaries of weekly discussion. The summaries can then be graded or considered as part of student participation.

115. Law schools have the responsibility, according to the ABA (ABA Memorandum, 1997) and AALS standards to teach values and professionalism and to train students to be ethical lawyers.

116. Other critics are skeptical that the traditional law school classroom experience is adequately preparing students to be professional and ethical attorneys. See, e.g; Lilly, 1997, and Haddon, 1994.

117. See discussion, supra, 'Facilitating Learning and Cultivating Relationships in Online Instruction'.

118. Of course, audio and video conferencing components can be integrated to provide real-time opportunities for modelling legal professionalism as well. Such modes could be used to supplement textual exchanges, or vice versa.

119. The typical problem book gives students detailed hypotheticals, supplemental legal documents, and other materials that might appear in a typical case file (Sheppard, 1997, p.623).

120 . In the case study method, cases with a 'dramatic effect' are selected from required student casebooks for special emphasis by the instructor. This is a pedagogical device that cannot be neglected in the online setting (Stevens, p.55).

121. This is a valuable skill associated with client counselling and case planning. See, Friedland, 1996, p.27.

122. For example, Blackboard has a Group Pages option as part of the Communication Control Panel that lets instructors set up private group pages apart from the regularly scheduled discussion fora.

123. The Center for Instructional Design and Technology at Regent University is producing case vignettes as part of a video library that can be used by faculty across campus. These cases are 5-10 minute scripted scenarios that can be analyzed by students in a number of disciplines. The cases are interactive in that they include questions for discussion and reflective prompts.

124. A portfolio is a type of project that includes self-directed learning and some guided design as well. In the portfolio, each student is assigned to create a collation of diverse resources—for example, books, websites, professional journals, academic journals, pop-culture articles, and so forth) on particular topic or set of topics into manageable, usable data. For example, in a class titled, 'Principles of Lifelong Learning and Development,' the portfolio assignment asked students to compile information that addresses the following: What is the adult learning process? How does this differ from children? What are the specific needs for adult learners? Special needs for adult learners: Strategies for test taking; Strategies for note taking; Strategies for effective reading? What is needed today and in the future to facilitate adult lifelong learning? What is your ultimate career goal? What paths will lead you there? Once a student gathers a wide variety of sources that address each area, the portfolio is presented as a written report to be delivered to the instructor electronically as an email attachment. Students could also be directed to submit their portfolio to other students for peer feedback prior to final submission.

125. Ibid. As Carnevale explains, projects are designed to simulate tasks that an employee might undertake in a real job. For an associate degree in applied science, information technology, and network administration, for example, students plan computer networks for small companies. The students present this plan in a five-page essay that details technical and financial requirements for enacting the plan, similar to a report an employee would present to a manager at such a company (Carnevale, 2001b ).

126. Such learning activities, which are ideally suited for online delivery, seem especially appropriate given student complaints about the inadequacy of the law school experience when it comes to training them how to function in the daily practice of law. For example, students complain that the courses that they take during law school don't sufficiently prepare them to do such real-life lawyering things as counsel clients, draft contracts or agreements, or try cases. See, Trail and Underwood, 1996.

127. Kimeldorf, 1995. Law students are often shielded from the social, historical and political contexts in which the law develops. As one critic observes, missing from the case study method—with its dominant text comprised of appellate cases—is the 'factual context needed to understand how law interacts with life' (Rhode, 2001, p.B-15). Students do not get exposure to how parties affect the lawyers and how the lawyers affect the parties. Small group work of the kind described herein, for example, role-play, guided design, project method, panel and symposium, enable students to come into contact with the real-life contexts that characterize the practice of law. For that reason, such strategies should also be incorporated into residential programs.

128. In the Delphi Technique, the collective opinion of legal experts is used to forecast future events. It usually requires a 'panel of experts on the social or technological trend(s) of interest,' (Stewart and Shamdasani, 1990, p.24). For example, the future of Tort reforms under the George W. Bush presidency. Brainstorming and synectics are both good techniques when the goal is to encourage new, creative ideas. For a description of each, see, Ibid, pp.24-27.

129. See discussion related to Kohlberg's model, supra.

130. The ABA Distance Guidelines strongly encourage the use of distance education to enhance externships and clinical opportunities (ABA Memorandum, 1997).

131. Ibid. Friedland (1996) identifies these lawyering skills as among those law professors most desire to teach their students (p.27). Also, note how increased faculty-to-student and student-to-student collaboration is consistent with the ABA's principles of quality distance education. See discussion, see Part I, section titled, 'Principles and Practices of Quality Online Legal Education'.

132. Paliwala and Clark, 1990. Since the mid 1990s, the United Kingdom has been at the forefront of law courseware development using C&IT. For example the Computer Teaching Initiative (CTI) Law Technology Centre spawned several discipline-based projects for co-ordinating and supporting technological advances in legal education (Paliwala, 1998).

133. Summer residencies are used by Regent University's Center for Leadership Studies to help build community and establish relationships among students and between students and faculty. They are used to supplement the proven relationship and community-building activities occurring in the online environment.

134. But while the use of online technology in law schools is advantageous since it can open the door to greater use of interdisciplinary collaboration in the form of role-plays and out-of-class projects, as well as opportunities for skills training, the incentive structure for pedagogical innovation may be lacking in most law schools. As Deborah Rhode, Professor at Stanford Law School remarks: 'the problem with [such] strategies is generally not that they are unaffordable but rather that they are insufficiently rewarded … and improvements in the curriculum usually are not well reflected in law-school rankings … nor is excellence in teaching the path to greatest recognition for individual faculty members' (Rhode, 2001, p.B-15).

135. See, e.g; Dunn, 2000, p.35. About 80% of the cost for most higher education is for personnel. Law schools are no exception. Faculty salaries are usually the biggest expense in most law school budgets. See, Sheppard, 1999, Twigg and Oblinger, 1996. At the same time, law professors should not work against online legal education out of fear of losing their on-campus jobs to online instructors. For a humorous explanation, see Young, 2001.

136. See, footnote 1, supra.

137. See, e.g; Warner et al, 1998, p.107,109. Note that the large-class Socratic formats have 'inherent limits' in that they 'discourage participation from too many students, particular women and minorities….' (Rhode, 2001, p.B-15), see also, Widdison, 1996.

138. Paliwala, 2001, see also, Fairhurst, 2000 . Fairhurst does make some comparison between distance learning students and part-time, traditional, students (1999).

139. An example of this type of research may be found in Grantham (2000).

140. Fairhurst (2000) draws some preliminary comparisons between distance learners and conventional part-time students. He also draws some comparisons between undergraduate and graduate students.

141. In one assessment researchers suggested that students prefer face-to-face methods over online methods. See Dearing, 1997.

142. Email surveys could be sent to each student at the end of the course and could ask questions such as: Which method seemed most rigorous? Which method best approximated the experiences you had in the face-to-face law setting? Which method allowed for the greatest interaction with the instructor?, and the like.

143. See, generally, Creswell, 1998. Students could be interviewed, or debriefed following the course. Biographical and phenomenological designs may prove helpful. Focus groups could be used as well, and the data collected used to improve delivery for subsequent classes.

144. Students are randomly assigned to specific discussion groups at the beginning of the semester. The discussion groups are then exposed to different instructional strategies for a given period of time. All conditions in the course remain the same for the groups except the different instructional strategies being used. The same post-test is then administered at the end of the stated period to each group. The mean score for each group is determined separately and compared using an appropriate statistical test to determine whether the use of a particular instructional strategy resulted in significantly different scores between the groups on the post-test.

145. In this variation, students are assessed in a given area, for example, using a critical thinking skills or values inventory, and then post-tested on the same set of skills following the instructor's use of a particular instructional strategy. Appropriate statistical tests are then used to determine whether there is a significant difference between groups in regard to performance that can be attributed to the particular instructional strategy.

146. The successful integration of online classes with a traditional or residential curriculum depends upon the 'utilization of tiers of developmental teaching and learning' (Ellsworth, 1995, p.34). 'Each plane of such learning requires mastery of the previous level' (p.34). According to Ellsworth, the first level focuses on the objectives of the course and expectations and how online learning activities fit into the overall course. These are the kinds of information especially well-suited for the Learning Contract described above, supra, (pp.16-17). See also, Anderson, Boud and Sampson, 1996. It is important at this stage that e-learners 'see the connection between what is being taught (the content) and the vehicles (methods and media) for that teaching' (Ellsworth, 1995, p.34). The second level involves learning how to use the technologies, for example, the 'how to' operational-level tasks; [which include] the rules of interaction' (p.34). The third involves 'proficiency and mastery of the tools to the extent that they become second nature' (Ibid). This third level results in 'problem solving, information gathering, negotiating, and turning in assignments' (Ibid). Faculty and student proficiency with the various technologies, for instance, NetMeeting, Quick Time, or other multi-media plug-ins, including video conferencing technology, and the like, is necessary to avoid creating frustrating communications barrier that may impede learning.


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