THE IMPACT OF TECHNOLOGY ON LEGAL EDUCATION^[1]

Anna Williams Shavers, University of Nebraska, United States

 

 

 

            I recall that when I first entered law teaching, I attended a presentation in which the law professor demonstrated creative ways of using technology and multimedia to enhance the traditional Socratic method of teaching law.  He carried in a heavy audio tape player and played for us some excerpts of oral arguments before the Supreme Court.  He explained to us the process of obtaining the tapes and described the excitement that might be generated in the classroom.  The audience all seemed to be scribbling down this important resource information and eager to try out this innovative technique.  This occurred just a little over a decade ago.  Since that time the impact of technology on law teaching has increased dramatically.   In recognition of this phenomenon, the Association of American Law Schools ("AALS") included technology and changing legal education as one of the major issues of the 21^st Century for discussion in a workshop held in January 2000.

 

            Here I identify five primary areas in which either there have been changes or where there is a need for discussion about the necessity or desirability of change.  These are (1) Curriculum and Substantive Course Content, (2) The Classroom/Teaching the Law, (3) Faculty Rewards and Recognition, (4) Accessing Legal Information, and (5) The Increased Costs to Legal Education.

 

Changes in the Curriculum and Substantive Course Content      

 

            While there is no uniform agreement on the ideal legal curriculum, traditionally there have been some subjects included in each school’s core curriculum and a general agreement on the desired substantive content of the courses.   These include basic core curriculum first-year common-law courses, torts, contracts, and property, as well as criminal law, civil procedure, legal writing and research, administrative law and constitutional law.   There has also been substantial agreement on the optional courses offered in the upper years.  The American Bar Association (“ABA”)      maintains oversight of law school curriculum through its accreditation process, but only provides goals rather than specific requirements.  Issues of content and methodology are generally considered decisions for the individual schools and individual law teachers.

 

            Decisions to integrate legal issues presented by the new technology into the legal curriculum are evidenced both in the change in substantive content to courses and the addition of new courses to the curriculum.  For example, the substantive content may now include in Administrative Law a discussion of the jurisdiction of the Federal Trade Commission to bring charges of internet privacy violations, in Civil Procedure issues of personal jurisdictional based upon sales over the internet, in Intellectual Property issues created by the ease of international access to creations, in Constitutional Law First Amendment issues unique to the internet, and in Regulation the regulation of business methods patents. 

 

Course additions include courses that involve a detailed consideration of a subset of issues presented in another course, specific courses that deal only with technology issues or courses that are consistent with the "law and ... " course phenomenon started in the1980s.^[2]   Some of the courses include Internet and Society at Harvard Law, Seminar on Internet Governance at the University of Miami, The Law of CyberSpace at Temple University, CyberLaw at the University of Nebraska, Regulation of the Internet at the University of Texas, The Law of Information Privacy at Georgetown, and Online Commercial Transactions at Southern Methodist University School of Law.

 

            A survey conducted by the AALS Committee on Curriculum and Research found that with respect to courses and seminars added to the curriculum between fall 1994 and spring 1997, intellectual property and technology related courses were among the top 25 areas of curricular growth and that adjuncts taught a higher percentage of new courses in intellectual property and technology than other courses.^[3]                                        

                                                           

The Classroom/Teaching the Law

 

            The use of technology in law schools is creating changes in the law professor’s delivery in the classroom as well as the system of intercommunications among the faculty and students outside of the classroom.

 

            The case method, developed by Christopher Columbus Langdell and implemented at Harvard in the 1870's has shaped legal education in the modern university-based law school.^[4]    The Langdellian approach rejected the lecture method used in most college classrooms and embraced the Socratic method as the preferred model for law teaching and appellate judicial decisions as the preferred vehicle.  There has been significant disagreement over the value and limits of the Socratic method which is stereotypically described as the process where the professor poses a question, a student is required to pose a plausible answer, and in response, the professor attempts to test or refute the answer by posing another question or presenting a hypothetical situation for application. 

           

            Critics describe the process as one of forcing students to teach themselves in a search that resembles hiding the ball in a shell game.  Critics also suggest that this method of learning is not appropriate for the various learning styles of students.  Its supporters find virtue in engaging students in a dialogue and characterize the method as an attempt to educate by posing questions and engaging in a cooperative search for truth through the development of critical thinking.   It is also argued that the Socratic method is fiscally as well as pedagogically sound since large classes can participate in the required legal reasoning and analysis even though only one student is responding because of the anticipation that any student may be called upon at any moment.  The method has also generally encouraged the use of small student groups outside of the classroom to continue the classroom dialogue.

 

            Especially in the upper levels, many law teachers have adopted other teaching methods such as the problem method and skills courses to promote the analytic thinking needed for the practice of law.   The case reading and interpretation, doctrinal analysis and application, logical conceptualization and criticism are maintained but the dialogue results from a discussion of problems or mock or actual experiences rather than use of the Socratic method.

                         

            The increasing use of technology in education and in the dissemination of information has presented new opportunities for legal education.  However, it is difficult to assess whether use of new technology enhances or inhibits the learning of legal skills.^[5]

 

            The proliferation of technology tools includes the legal databases, the Internet, computer networks, listservs,^[6] web-based instruction, e-mail, projection systems in classrooms, computer-assisted instruction, and conferencing tools.^[7]  Even with all of these tools, initial surveys indicate that only a small percentage of law teachers use any technology to enhance their classroom teaching.^[8]  Perhaps this is consistent with the statement made twenty years ago by Thomas Shaffer and Robert S. Redmount, commenting on legal educators' resistance to change,  "Innovation in legal education comes hard, is limited in scope and permission, and generally dies young."^[9]

                                               

            There are numerous reasons for considering the use of technology tools in legal education.  These include the recognition of different learning styles (for example, the use of classroom computer projections may help the student who learns best through visual cues.), the incorporation of new learning experiences, accommodation of disabled students,^[10] the ability to access information that is not readily available at the researcher’s location, engaging in multi-party discussions with colleagues around the world, communication with students outside of the classroom, and the provision of courses to students in distant locations.   This latter category, commonly referred to as Distance Education, is perhaps the most controversial.  All of the others can be adopted or not by law teachers without much, if any concern about violating legal education standards. 

 

            Distance education takes advantage of technology that is being widely used in a number of educational settings.   The technology includes web-based instruction, closed circuit television, videocassettes, teleconferencing, videoconferencing, and internet links.   Students are able to take classes from professors located at other law schools across the country or across the world, from remote sites or even their homes.   As a result of a study of distance learning techniques and their possible effect on legal education, the ABA Accreditation Committee issued Temporary Distance Education Guidelines in 1997.^[11]    The guidelines express a disfavor for programs that would separate the student from an active learning community in a law school and are consistent with the ABA's Standard 304(g) which prohibits giving credit for correspondence study.   The guidelines do not prohibit distance education and can be read to encourage experimentation with the technology within the context of an approved law school program.

 

            The Report of the Task Force on Law Schools and the Profession: Narrowing the Gap 241 (Chicago, 1992) by the ABA Section of Legal Education and Admissions to the Bar, Legal Education and Professional Development--An Educational Continuum, [commonly referred to as the MacCrate Report] prompted some law teachers to use technology to incorporate practical learning experiences into their courses.^[12]

           

            A number of projects have developed that seek to explore the use of technology in legal education, assist law schools with this endeavor, and examine the uses of technology in education.  These include The Center for Computer-Assisted Legal Instruction (“CALI”) created in 1982 at the University of Minnesota Law School and Harvard Law School, now with offices at Minnesota and Chicago-Kent;^[13] and the recently created JURIST: The Legal Education Network™ directed by Professor Bernard J. Hibbitts, University of Pittsburgh School of Law;^[14] and The Berkman Center for Internet & Society established at Harvard.^[15] 

 

            CALI originally focused on the creation of computer-based exercises and sharing them among law schools.  Its activities now cover the breadth of technology issues in legal education and it hosts an annual conference for law school computing.  JURIST was originally referred to as the “Law Professor’s Network”, but is now more broadly described as the Legal Education Network for law professors, students, lawyers, judges, journalists and citizens.   In addition to general legal information, its web site provides links to faculty web pages and other faculty resource materials.  The Berkman Center describes its mission as follows:

The Berkman Center's mission is to explore and understand cyberspace, its development, dynamics, norms, standards, and need or lack thereof for laws and sanctions.   We are a research center, premised on the observation that what we seek to learn is not already recorded. Our method is to build out into cyberspace, record data as we go, self-study, and publish. Our mode is entrepreneurial non-profit. ^[16]

In addition, faculty members are providing information about their individual experiences on their web pages and in law review articles.^[17]           

 

Faculty Rewards and Recognition

 

            Law faculties are typically expected to engage in teaching, scholarship and service.  Traditionally, the greatest reward is attached to performance in scholarship.  While there is some consideration of giving more recognition to the “scholarship of teaching”, it is unclear whether faculty time spent in the development of or use of technology teaching methods will be considered in the reward structure. 

 

Even modest use of technology presents issues for faculty.  In some instances, faculty may view the use of technology as a reduction in the rewards previously available.  For example, placing a computer on the desk of each faculty member for a number of institutions has meant a decrease in the availability of secretarial assistance.

           

            The reluctance of some faculty to incorporate technology into their teaching may be due in part to the lack of recognition and rewards.  Another factor may be the perception that technological change is not a major factor in the provision of quality legal education.^[18]

 

Accessing Legal Information

 

            The availability of computer networks, information databases, CD-ROM, and the internet has transformed legal research.  This availability presents issues with respect to the appropriate level of library materials to be maintained in electronic or print,^[19] whether electronic materials must be supplemented with print materials, instruction in legal research and writing, and the implications of the ease of access to legal information by the general public for the teaching and practice of law.

 

Cost of Legal Education

 

            All of the technology discussed above cost money.  Many law schools have had to face these increasing costs at a time of retrenchment in funding from state legislatures or a reduction in student enrollment.  This has led some law schools to adopt various methods to generate the necessary funds.  These include tuition increases, fund-raising, requests to university administrations, and student fee assessments.   The costs are associated with the acquisition of equipment, training and the restructuring of jobs or the hiring to new personnel to handle the technology.  In addition to the increase in fees and tuition, students are incurring the expense of purchasing the computers needed to perform some routine assignments as well as participate in technology oriented classes.  Some schools have required computer or laptop purchases.^[20]

 

Conclusion

 

            New technologies present the opportunity for the exploration of new methods of teaching in law schools.  The many unanswered questions raised herein illustrate the need for further exploration and study of the use of technology.  It should be noted, that those who liked the idea presented above of having students listen to Supreme Court arguments can now accomplish this by accessing the Northwestern University Supreme Court website, Oyez, which has oral arguments that can be listed to over the internet.[21]