This rather lengthy post synthesizes a number of my previous posts about the use of technology in the classroom. This post, however, adds to the equation how technologically proficient students will be better situated for the legal marketplace of the future. Rather than incorporating technology in the classroom because students today are wired to learn this way (I still think that is an important reason), technology in substantive doctrinal clases can actually help bridge the gap between theory and practice by engaging students in cognitive tasks that lawyers today require. I also sketch, in part, how I view the classroom of tomorrow.
The Gap Between Theory and Practice.
A 2010 study from NALP found that “experiential learning opportunities,” “hands-on” or “simulated learning opportunities,” are “instrumental in preparing new associates for the demands of the practice of law.” Yet, there exists a pedagogical schism in academia between so-called doctrinal classes (such as Contracts, Torts, or Criminal Law, etc.) and practical, or clinical courses (Trial Advocacy, Legal Writing, Externships, etc.). Professors teaching substantive classes focus extensively on the theoretical aspects, and often give short thrift to the practical implications of the subject matter. This, in part, stems from from the traditional Langdellian case model approach to education, tied with the Socratic Method, employed in one form or another since the late 19th Century.
An influential 2007 report from the Carnegie Foundation observed this trend, and proposed a framework to narrow this schism. As the report noted, to the extent that professors can “bridge the gap between the analytical and practical knowledge,” new attorneys would be better situated to compete in the marketplace and obtain the ever-so-important first job. The report, which suggests an “Integrative Model” for law schools seeks to combine the “[t]eaching of legal doctrine and analysis,” “several facets of practice,” and a focus on the “identity, values, and dispositions” of the legal profession. The “teaching of legal doctrine needs to become fully integrated into the curriculum,” rather than as a mere addenda. Indeed, with the legal market becoming more competitive–as more law schools churn out more lawyers–the skill set with which new attorneys graduate, becomes more and more important as a means to ensure employment.
What exactly are these ‘facets” of practice to be integrated? More importantly though, what are the “facets” of practice that attorneys of tomorrow will require?
Professor Larry RIbstein, in a very significant article titled Practicing Theory: Legal Education for the 21st Century (I blogged about it here) echoes my theory. He writes that law schools should encourage students to be “creators,” and not mere “mechanics.” “The only thing that is certain is that law schools may face, for the first time, the need to provide the type of education the market demands rather than serving lawyers’ and law professors’ preferences. Legal educators must respond to these demands by serving not just the existing U.S. market for legal services but also a global market for legal information.”
How does Ribstein suggest theory and practice should be incorporated? Building on the “Integrative Model” proposed in the Carnegie Foundation Report, Ribstein notes that substantive “courses should be taught with a view toward integrating even traditional lawyer work with the latest theory, either by practice/theory teams or by practitioners who have advanced degrees.”
Using Technology to Bridge The Gap
Law schools have been late to evolve. “Legal education significantly lags the rest of higher education in integrating online learning and other educational technologies into its programs,” Southwestern Law School Dean Bryant Garth said in a written statement announcing the formation of a consortium of six law schools that agreed to consider working on technology initiatives.
The legal service industry is evolving, and so must the legal education market. A recent article in the Times remarked that many legal jobs historically performed by attorneys (namely document review) could now be outsourced to computers, as well overseas. Despite Paul Krugman’s fears of this competition from our new robotic overloads, I am not as concerned as I noted that “the nature of legal jobs will change,” and new “Attorneys will have to think of how to create value, either through assembling good transactions or engaging in smart litigation.” This, in my mind, represents the “facets” of practice that can, and should be developed, particularly in doctrinal classes. A 2007 HLS report noted that lawyers who “find ways to exploit technology to mange” their work to “gather knowledge, manage teams, automate their practice, or some other opportunity as yet unidentified will see tremendous gains.”
The HLS report focussing on the “integrative” approach noted that one parter in a major law firms remarked that “The win-win-win situation is thinking about technology . . . not as an end in and of itself, [but] to train students in law.” Professors should strive to “enrich existing activities with appropriate technology learning opportunities.”
Bridging The Gap Between Theory and Practice in Doctrinal Classes
In Law School 2.0, Professor David Thomson predicted that “[l]ong-brewing dissatisfaction with law school programs and profound alterations in legal practice will combine with a new and different generation of students leveraging advances in web technology to produce changes in legal education of a sort that we have never seen before.” Thomson also notes how “the legal profession is increasingly driven by technology and efficiency,”–skills students but are lacking. “Clients are demanding immediate access to their attorneys and more and more legal work is conducted via e-mail. The days of the long opinion letter on expensive letterhead stationery are fast fading into the past.” Indeed, the opinion e-mail, written in a short period of time (at a much lower billable cost) is the desired form of client communication. The future composition of the legal profession is largely unknowable–“legal careers enjoyed by today’s students will change direction because of yet more sophisticated technologies developed during the course of their careers, and likely more than once.” What is certain, however, is “[t]he current forms of teaching in law school are not sufficient to prepare students for the technological challenges they will face in the 21st Century.”
Professor Thomson recognized that many of the proposed changes are not properly focused:
Further, many of the more significant curricular changes are reaching small groups of students and show no evidence of being scalable to larger numbers. Worse, none of these curricular changes leverage technology in any coordinated fashion as part of the curricular design. And none of them seem to recognize that law schools are dealing with a new kind of student, the Millennials for whom technology is central to their lives, and for whom technology will be vital to their lives as practicing attorneys.
The 2007 Clinical Legal Education Association Report “call[ed] on law schools to make a commitment to improve the preparation of their students for practice, clarify and expand their educational objectives, improve and diversify methods for delivering instruction, and give more attention to evaluate the success of their programs of instruction.” Specifically, law schools should “develop competence, that is, the ability to resolve legal problems effectively and responsibly.”
The 2007 report from the Berkman Center for Internet & Society at Harvard Law School, titled “New Skills, New Learning: Legal Education and the Promise of Technology,” made a number of important findings about the state of technology in legal education today, concluding that “today’s workplace demands skills that the traditional law school curriculum does not cover.” Unsurprisingly, “legal educators seriously under-utilize new technologies.” Even though “many attorneys work in complex teams distributed across multiple offices,” only “12 percent of law students report working in groups on class projects.” Law firms a “role to play in ensuring that attorneys are prepared for a technologically-mediated world.” Students who engage in “class-oriented computing activities are more likely to participate in class discussions, synthesize concepts form different courses, and work hard to meet faculty expectations than students who frequently participate in diversionary computing activities.” Indeed, students in the former category are “slightly less likely to come to class unprepared.” (Interestingly, “90% of first-year students regularly come to class unprepared,” while “25% of 3Ls frequently come to class unprepared.”) Unsurprisingly, 3Ls are more likely to use laptops for “diversionary” uses. The 2010 Annual Survey of Student Engagement in Law School, titled In Class and Beyond found that “academic engagement declines over the course of students’ three-year tenure in law school.”
Laptop Usage in the Classroom
Articles on whether laptops in the classroom distract students are premised on an environment where all of the information is coming from the professor–“the sage on the stage.” The 2008 LSSE survey divides usage of laptops in class to “class-oriented use” and “diversionary use.” This dichotomy is false. The 2008 LSEE titled Preparing 21st Century Lawyers, found that “when used for academic purposes, computers in the classroom can be an asset to student engagement.” The study found that “class-oriented computer use correlates highly with self-reported student gains in a variety of areas, including critical and analytical thinking.”
But what if the professor, recognizing that students can receive information from other sources–utilizes the laptops in the class discussion, and promotes the information gathering and meta-lawyering skills that practicing attorneys need. Now, professors have opened up a new world of pedagogy.
Yet many of these proposals focus on using technology in clinical, or practical classes. It is often unclear “who should teach desired [technological] knowledge or skills.” For example, the 2007 Harvard Law School report suggests that schools utilize “authentic practice technologies to support law school clinical programs” and students should “learn through computer simulation [that] mirror . . . legal practice settings . . . to experience . . . real-world casework.” The 2011Future Ed Conference, co-sponsored by the New York Law School and the Harvard Law School (article here) awarded “fictional” funding for the sole purpose of building such a simulation, dubbed Apps for Justice. In the HLS report, several interviewees “expressed skepticisms that law school professors, who may lack significant practice experience, could teach such skills competently or keep up with the state of the art.” What about in doctrinal classes that teach substantive topics?
I propose a more “integrative” approach–incorporate the very skills new attorneys will need in doctrinal or substantive classes.
Millenials in Law School
Students today simply learn differently today. As Professor Thomson notes, this new generation of students should be taught in a manner that reflects their learning styles:
Put another way, the students of the future will need to know not just how to “think like a lawyer” — the traditional pedagogical goal — but how to “act like and be a lawyer.” To effectively do this, we will have to invent “Legal Pedagogy 2.0” where, at a minimum, we teachers become less “the sage on the stage” and more “the guide on the side.” Merely transferring content from the podium to expectant student containers is insufficient. The old approach is based on the out of date assumption that information is scarce when that is no longer true. It will not connect with the new generation of law students, and it will insufficiently employ the benefits of technology for teaching and communicating effectively with them. Worse, and it will insufficiently prepare them for the practice in which they are going to live and grow. The changes being discussed are profound and cannot be accomplished without leveraging emerging technologies. Fortunately, the need and the means are coming together at the same time.
A guide on the side, or as I have dubbed it, an “aggregator” of information, is how I view the professor of tomorrow, rather than the “sage on the stage” or a Langdellian Oracle (see here, here, and here).
Some may worry that promoting electronic communication will be detrimental to attorneys who have to interact with clients in person. No doubt new attorneys will need interpersonal skills, but today the vast majority of communications with clients–if young attorneys take to clients at all (not very common at large firms)–is electronic, primarily via e-mail. “E-mail is the practical tool through which significant legal work occurs.” Instead of teaching students to write legal memorandums, shouldn’t legal writing professors ask students to write short, concise e-mails? In some cases, attorneys are expected to reply to a client’s e-mail within an hour (see here and here). There is no time to IRAC. They cost less, get the message across, and respond to the client’s demands of instant contact.
Intimiate knowledge of electronic discovery tools is essential for all litigation and transactions. In fact, the burgeoning “online dispute resolution (ODR) is emerging as a distinct dub discipline that recognizes how negotiating via an asynchronous, low “emotional bandwidth” medium like email significantly differs from the same activity conducted face-to-face.” Further, “collaboratively editing a document across several offices in different time zones” will supplant the traditional, isolated work product of attorneys of the past.
The Skills of the Attorney of Tomorrow
The HLS report identified four skills that attorneys in a “changing work environment” will need to master. First, “knowledge-generating” skills refers to the “process whereby professionals pann useful information from the silt of data, and then apply that information as actionable knowledge.” Second, “techno-social skills” will “enable professionals to work with colleagues through the medium of technology.” Third, “meta-practice” skills “involve the translation of one-off practice into system of practice.” For example, rather than re-inventing the wheel by writing memorandums or pleadings from scratch, law firms that have in place a repository of ready-to-use documents, or even better, attorneys who are able to find samples available online, are suited for “meta-lawyering.” Additionally, attorneys will need to be able to “filter, assess, and act upon good information,” and learn to “discern valuable information from useless data” as they “convert information into actionable knowledge” (see here). My proposal hones each of these skills during the course of a substantive lecture.
The Law Classroom of Tomorrow
Imagine the classroom of tomorrow.
I envision using a customized set of readings available electronically for use on an e-reader. No need to purchase or carry around cumbersome and expensive textbooks. All materials would be posted before class; no hiding the ball (see here and here). The readings would consist of edited-down versions of cases, followed by a number of supplemental sources–excerpts from law review articles, contemporary news accounts (to learn how the case affected the people and places involved), and a series of hypothetical questions (that will be further explored during class). Additionally, I will tap into my vast Constitutional Places database of photographs, videos, and podcasts to provide ample media to make the cases come alive. Finally, because the resource is electronic, it can be updated during the course of the year to draw students’ attention to recent cases from the Supreme Court, and lower courts, that touch on these topics.
I would not rely on the Socratic Dialog. My class will enhance collaborative learning.
The Socratic method focuses on grilling individual students. I never understood the purpose of asking the same student question-after-question. There are so many students in the class who are neglected. “Socratic dialogue between professor and student emphasizes and rewards individual work and thinking.” A 2008 Survey conducted by LSSEE found that “about 60% of students report that their school places a substantial emphasis on memorizing facts, ideas, or methods to repeat them in pretty much the same form.” The 2010 LSSE survey found that “24% of students said that their coursework placed a strong emphasis on memorizing facts, ideas or methods from courses and readings so that the student could repeat them in pretty much the same fomr.” Likewise, legal writing projects are accomplished individually, and in some schools, students are prohibited from discussing the issue with anyone else.
This makes little sense. In law firms, 78% of attorneys belong to one or more teams. The 2010 LSSE survey revealed that “fewer than 60% of law students generally felt prepared to work with colleagues as part of a legal team.” Why are law schools forcing students to work in silos when professors should be developing collaborative skills–the very skills that web 2.0 and collaborative technology promotes?
I would leave open a live-chatroom during the classroom (perhaps using Twitter, or some other similar service that allows me to easily track participation) (I have blogged about this approach here, here, and here). Students would be able to ask questions, answer questions, and chat with one another during the class. If one student is talking, and another student has a comment, he can politely enter it into the chat without interrupting his peer. As the Professor, I can facilitate the discussion, and decide which comments to bring to the fore and which to ignore. If one student is struggling, students will be encouraged to help our their friends, and share answers. Building this collaborative environment will help prepare new attorneys for practice where they are not expected to work alone, but rather, will come to rely on collegial colleagues. Further, a livechat will enable students who may be “quiet” to participate effectively.
Lectures would consist of a free-flowing (yet structured in advance) discussion with a series of rapid fire questions.
Rather than using a boring powerpoint, I will ask students to copy and paste into the livechat the relevant text (a statute, case citation, or even key sentence in a case). This allows students to participate, feel involved, and enables visual learners to prosper.
I would not call on students to “recite” the case. This is trivial, and wastes time, as students usually don’t get the facts right, and the professor usually restates it. No sense going over the obvious. What I will ask students to do is apply their knowledge in a fast-paced environment to quickly “discern valuable information from useless data.”
For example, assume we finished exploring a Supreme Court precedent that was somewhat vague. I would then ask the students a variation of that holding with different facts. But rather than keeping it abstract, I would ground the hypothetical in an actual Circuit Court case. I would ask the students, in real time, to find that case, and explain how faithfully the Circuit Court followed the Supreme Court precedent. This would require the students to quickly Shepardize the supreme court case, and limit the results with some keywords that I will casually mention. Then, the students will have to quickly scan the headnotes of the case, synthesize the holding, and explain it. This is a skill that any practicing attorney would be well served to know: working quickly to find the info you are looking for!
At the beginning of the semester, no doubt, students will be flustered and find this quite difficult. But this can, if done properly, be done in about a minute or so. Students can even learn to use Google and other free tools to find this info faster than with Westlaw. Students who find the case first can enter the citation to the livechat, and answer the question. If I can teach a student to apply a constitutional principle in a short period of time by finding relevant lower court precedents, I will feel confident that I have bridged this gap. This helps to connect theory and doctrine. This allows students to “generate value in innovative ways.”
I have several more ideas along this line, but this will suffice for now.
The discussion does not end when the bell rings. I would continue to engage the students in discussion after class using Twitter with an appropriate hashtag. This forces students to keep their answers concise (140 characters), and allows them to freely engage in discussion with their colleagues. Additionally, following class I will share with the students additional hypothetical type questions that relate to the precedents learned.
This model requires minimal foundational or structural changes in the way substantive courses are taught. Rather, this approach only requires a tweaking of the traditional case method to adapt to the future needs of the legal marketplace, and nourishes in students the “creator,” rather than the mere “mechanic” mindset of the future. These approaches, unlike simulations, which are “difficult and expensive,”
This post provides a research agenda for an article I am working on, as well as my developing teaching philosophy. I will keep you posted.