Online learning and law schools

An editorial in today's New York Times appropriately cautions against a wholesale, reflexive move toward online courses in higher education, and the caution is especially appropriate in the context of legal education.

As anyone following developments in legal education knows, law schools are, like other components of higher education, scrambling to find ways to cut skyrocketing costs.  I'd be surprised if many law schools don't consider increased reliance on online courses as a cost-cutting measure.  But many of the drawbacks of online education are magnified in the law school context.

The Times editorial mentions one such drawback:  the inability of at-risk students to get individualized attention from instructors in an online-only format.  Law schools, particularly (but not exclusively) those outside the "elite" top twenty or thirty, have at-risk students just like undergraduate institutions do.  These students often are surprised to find themselves at risk; most law students performed well in undergrad.  But learning the law is a challenging and unfamiliar process, very different from most undergraduate programs, and many previously strong students have trouble with it.  The best way to overcome those difficulties usually is to meet face-to-face with professors and academic support personnel; another good technique is to form study groups with fellow students.  None of these steps is easy to take in an online-only world.

And there is another consideration that is, if not unique to law schools, then especially salient in that context.  Legal education, even in a large lecture course, typically is more interactive than undergraduate education, and for good reason.  In my first-year Civil Procedure and Constitutional Law courses, for example, I spend a lot of class time calling on students without advance notice and asking them questions relating to the cases and other materials we have read.  The point of this technique -- often (and sometimes pejoratively) called "the Socratic method" -- is fourfold.

First, I want to make the presentation of the material more interesting by teasing out the central points interactively rather than declaring them didactically.  If the Socratic method is done well, not only the student "on call" but the other students in the classroom will try to think of answers to the questions the instructor poses and will attempt to predict where the instructor is going with a line of questioning.  This is a kind of active learning that I believe is more effective, most of the time, than passively listening to a lecture and taking notes.

Second, I want to give students experience thinking on their feet under pressure -- something virtually every lawyer will be called upon to do in practice, some of them quite regularly indeed.

Third, I want the students to know they're not alone in their frequent confusion.  When an on-call student struggles a bit (maybe a lot) with an answer, other struggling students realize there's nothing wrong with the process of struggle:  Everyone goes through it.  Of course this benefit too depends entirely on doing Socratic right; an instructor who humiliates a struggling student sends the message that struggle is unacceptable rather than a natural part of learning.

And fourth -- particularly in my first-year courses -- I want the students to get the message that preparation is essential.  An unprepared student will be embarrassed if he or she is called on, and that's not a bad thing.  Lawyers, after all, can't go to court or attend a meeting with a client unprepared.  Better to be momentarily embarrassed in front of a sympathetic group of fellow students than to cost your client a case or your firm a client.

None of these goals can be achieved to anywhere near the same degree in an online format, at least not until "virtual classroom" technology makes dramatic improvements.  Which is not to say that online instruction won't work for some aspects of the law-school curriculum -- specialized upper-level courses, perhaps.  But it is to suggest that law schools should strongly resist the trend toward online education in the context of first-year and other building-block courses.  To take these courses out of the live classroom would be to drain them of much of their value in training future lawyers.

A post-law school residency requirement?

John Farmer, dean of the law school at Rutgers-Newark and a distinguished practitioner, proposes in the New York Times a requirement that law-school graduates apprentice for two years in a sort of residency program like that required of medical grads.

While there are many details to be worked out -- chief among them the far greater number of law graduates than medical graduates -- I like the basic substance of Farmer's proposal.  It would at least begin to redress two huge structural problems in the existing legal market.

The first problem is the mismatch between demand (lots of demand for low-cost legal services; not so much for high-cost ones) and supply (lots of law grads with enormous debt; not enough high-paying jobs available to help them pay it off).  Requiring a two-year legal residency after law school, while suspending debt payment for that period, would allow recent grads to meet a wide variety of legal needs at relatively low cost, thus fulfilling much currently unmet demand.  And while it wouldn't make graduates' debts go away, it would at least make recent grads more marketable, by giving them the kind of experience paying employers are looking for.

Which leads to the second current problem:  Most legal clients, and thus many legal employers, are no longer willing to subsidize the training of newly-minted lawyers fresh from law school, and law schools are not particularly well suited to supply the hands-on training in diverse areas that clients and employers want.  A residency requirement would provide the practical training that employers won't and law schools can't.

I also like the proposal because of its source:  someone inside the legal academy who also seems likely to have credibility among practitioners.  (According to the brief bio following the Times op-ed, Dean Farmer was "a former attorney general of New Jersey and senior counsel to the 9/11 Commission" before accepting the Rutgers-Newark deanship.)  There is a danger that the current crises in legal practice and legal education will be "addressed" with simplistic panaceas (e.g., doing away with the third year of law school) and scapegoating (e.g., blaming law professors for everything).  Both tendencies are on display in this disappointingly sloppy and one-sided Times article from Feb. 10, which reports a series of complaints and tentative suggestions aired at an ABA task-force meeting in Dallas as if they were consensus recommendations of the ABA.

Real reform is going to take cooperation among the law schools (including their faculties), the bar, and the bodies charged with setting standards for admission to practice (the state supreme court in most states), all of whom are partially to blame for the current state of things, and all of whom will have to pitch in to create solutions.  Many law schools (mine included) are working hard to rethink their roles and their methods in light of the changes in the market they serve.  Dean Farmer's proposal is a good example of this, and it deserves to be taken seriously.

R.I.P. Ronald Dworkin, 1931-2013

Extremely sad news today that Ronald Dworkin has died.  (I assume the Times will supplement this notice with a more extensive obituary soon.)  Dworkin was one of the most influential legal philosophers of the past century, notable for the importance of his views to central debates in jurisprudence, for his influence on constitutional theory, and for his dissemination of ideas in legal theory to a broader audience through his books and outlets such as the New York Review of Books.  Larry Solum's entry on Dworkin's death is here; I'm sure many will follow.

UPDATE:  Here is a link to the Times's full obituary of Dworkin.

News of his death prompted me to look back through my files -- the few remaining ones that consist of paper documents -- in an attempt to locate a letter I remembered receiving from Dworkin following the publication of my first law review article.  I found the letter, dated July 16, 1996.  (Almost seventeen years ago, which seems a very long time, though perhaps not that long when you consider that we were still communicating almost exclusively by "snail mail" back then.)

I had sent Dworkin a copy of the article -- published in the Yale Law Journal, an incredibly lucky strike for a first article and one I'm still trying to live up to -- in part because a large section of it was devoted to critiquing an aspect of Dworkin's well-known "law as integrity" concept.  Dworkin's reply was short and polite, though not entirely sweet:

Dear Professor Peters,

I appreciate your sending me a copy of your article Foolish Consistency, and I look forward to reading it.  Just glancing at it I found the remark that I think integrity distinct from both justice and equality.  I do think it is distinct from justice, as I defined that term, rather specially.  But not from equality:  on the contrary I think of integrity as a mode or aspect of equality, deriving from the requirements of a community of equals.  I just mention this, though I will probably discover, when reading the article, that the verbal point makes no difference to your argument.

Thanks again.

Sincerely,

Ronald Dworkin

That is the entirety of the letter, and it is the only time I can be said to have "communicated with" Ronald Dworkin.  I was utterly thrilled by it, despite the nit he picked with my characterization of his arguments and not least of which because he referred to me as "Professor Peters" in the salutation.  (At the time I was a mere Fellow.)  Dworkin was one of my intellectual heroes -- still is, I suppose.

I don't know whether Dworkin did in fact discover that his "verbal point" made no difference to my arguments, or even if he ever read the article at all.  I responded to his letter with a more extensive letter of my own, explaining my interpretation of "integrity" and inviting him (if that's the word) to comment further on my paper.  I didn't hear back from him.  But that one brief missive remains, in its own way, a highlight of my career.