Conference on New Ideas for Experienced Teachers

June 9–13, 2001
Calgary, Alberta, Canada

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Ronald W. Staudt

1. Introduction

On November 20, 1999, Peter Martin and Charlie Nesson faced each other in Indianapolis to debate the potential use of distance learning in law schools. Peter was working through a series of experimental courses that permitted asynchronous instruction over the web. Charlie took the position that law school would be damaged if this type of education were permitted to undermine the traditional campus community of physically proximate teachers and learners. Peter pushed the view that students were abandoning the learning community for jobs and other avocations soon after their first year. Charlie, with a twinkle in his eye, responded that the current system could not so bad if it produced excellent legal minds like Peter’s. In a rejoinder that I cannot shake out of my mind, Peter said, “A tree will grow in a crack in a boulder!” I am writing an article with that wonderful title.

The Setting

Distance learning is the darling of the press and academic administrators. It is touted as the learning methodology of the new millennium, better suited for the students born with computers in their homes and elementary schools. Administrators see it as a vehicle for income enhancement, a set of new educational products that can be built to leverage the investment in excellent tenured faculties. Others envision distance learning as a way to reduce the cost of, and concomitantly increase the access to, prestige educational credentials for those who cannot afford residential campus instruction. Still others see it as a new bonanza of post-graduate profit, driven by demand from an aging population eager for new challenges but tied to locations and employment that make pursuit of an advanced degree or certificate too onerous.

Distance learning has established an impressive foothold in universities. Led by the wholly distance learning Open University with almost a quarter of a million students, there are hundreds of distance learning initiatives now in place. The most visible distance learning initiative in legal education is, of course, Concord School of Law, a wholly owned subsidiary of Kaplan, Inc.

The Quest for Quality

My colleague, Richard Warner, has written an article describing the distance learning opportunities in legal education. His analogy is that distance learning is a Ford to the campus degree program’s Cadillac. He sees distance legal learning as less effective but much more affordable and therefore much more accessible. It is this view, I believe, that makes the tough position of the ABA accreditors difficult to overcome. The ABA Consultant’s Office has permitted limited experimentation with distance learning. While there are proposals to expand the freedom of accredited schools to offer distance learning courses as part of their curriculum, there is not the slightest glimmer of hope that the ABA will accredit Concord in its current all web, all distance format. So long as the proponents of distance instruction propose it as an inferior but less expensive alternative to real legal education, the restrictions that require 45,000 minutes of instruction within the same building complex that houses “physical facilities” adequate for its current needs and future growth.

In 1999 at the request of the dean of Chicago-Kent, a small group of faculty members worked to find an approach to distance learning that harvested its advantages without the limitations it imposed. We emerged with a hybrid model of JD instruction that many of us found exciting and filled with promise. The premise was quite simple: offer the full 56,000 minutes now required by the ABA for residential instruction in our state-of-the-art law school building in Chicago, but concentrate the instruction into intense periods, 3-8 days long, bridged by copious use of distance learning tools.

For six months we worked on this model focusing our attention on the first year courses. As we progressed, I became convinced that this new hybrid offered significant advantages over the current methods in place today. If current law school methods were a Cadillac, this new set of learning tools could be, at least for the right group of students, a Ferrari.

2. Chicago-Kent’s eJD Initiative, a Once And Future Hybrid

In February 2000 Chicago-Kent considered a new type of hybrid JD degree program loosely based on the MBA executive programs now offered by top business schools. The key feature of the program was that it provided the same number of contact hours on site at the law school as the current part-time JD program. In the new proposal, part time students might choose from a course that schedules classes that meet at the law school for 7 days of instruction, ten hours per day, at the start of the semester, three days in the middle of the semester and 7 days at the end of the semester. In between these intense on-site days, distance learning tools could be used to teach, including: internet enabled instruction, group work via chat or videoconference or asynchronous threaded discussion tools, computer mediated instruction, mentoring sessions via telephone or video conference or web chat, etc.

As we worked to add detail to this sketchy proposal, it quickly became clear to many of us that the key innovations were not the distance learning components but the intense periods of instruction at the beginning, middle and end of the semester. More detailed reactions to the hybrid program are included in Appendix A.

3. Exercise for those attending the Calgary Workshop

During the workshop small teams of attendees will map the learning and teaching structures that they would use to implement a hybrid program at a hypothetical law school. Each group will discuss the prospective educational advantages and risks of the hybrid program.

Appendix A

Notes from a Chicago-Kent Faculty Committee Discussion of the proposed eJD Program

Some of the early reactions and issues raised by the Chicago-Kent faculty committees reviewing this proposal are as follows:

The group concentrated on the first year curriculum and gave special attention to the first few weeks of law school. Several innovative ideas for this law school launch were developed to take advantage of the NITA style time intensity that the new format would offer. For example, the first week or ten days could be structured around three rich simulations:

Taste of a Lawsuit

Taste of a Crime.

Taste of a Deal

The first of the intense periods should focus on the skills that are now developed in the context of the existing courses. These skills are now addressed in the first 6 hours of the Legal Writing curriculum. The group developed the following list of skills and knowledge that ought to be the target of the initial intense session:

Skills

How to read an appellate opinion

Identification of the relevant parties
Identification of the rule of law
Identification of the relevant facts
Understanding that facts matter
How to apply the rule to the facts
How to justify the rule

Understanding the precedent system
How to read a statute
Analogical reasoning
Written expression
Verbal expression

Levels of Courts
Sources of authority
Doctrine

• Some advantages that this model could deliver include the ability to teach courses in a more integrated fashion combining those parts of Torts and Criminal Law that conceptually overlap, for example.
• It was agreed by all that the intense periods could not be days of 10 hours of typical classroom instruction packed end to end. These intense periods called for experience based instruction with Socratic classroom periods interspersed.
• There was a widely shared concern about the gestation issue. Our understanding of the mechanism of learning in law school is quite primitive and we are not able with certainty to identify the skills and knowledge that can be learned more rapidly with more intense effort and those skills and knowledge that might require periods of weeks or even months of reflection, review and gestation.
• There was significant enthusiasm for the possibility of implementing an Oxford/Cambridge style tutorial approach to the distance learning periods between the intense sessions. This mentoring could be delivered over the web or by telephone. Its purpose and approach could be a varied as the tutorials now taught at Oxford or Cambridge and it would be designed to engage each individual student in dialog and interaction with the faculty.
• Because the distance learning communication from student to faculty and student to student will be largely written, the substantive courses might be envisioned, in part, as a more pervasive legal writing curriculum.
• Because the intense periods are uniquely amenable to the techniques of our Trial Advocacy program, the program might naturally deliver more and better trial advocacy and appellate advocacy experiences. This might also be driven by the need to be sure that values of the profession are modeled and stressed during the in person/on site part of the instruction.