Professors in high-tech law schools

Professors in high-tech law schools

From THE ROLE OF THE PROFESSOR IN THE HIGH-TECH LAW SCHOOL, by Steve Sheppard

In a high-tech law school, “Could not all classes in subject be taught by one faculty member over the Internet? Won’t this reduce all other faculty who teach to teaching assistants? The short answer is ‘yes.'(2)
In the future predicted by John Mayer and others, technology will not only provide the capability to fundamentally change law schools, but also present economic and political pressures that make such change practically unavoidable. In the face of the cost savings possible with electronic teaching materials of the kind pioneered by Ron Staudt, Mayer, and their fellow-travelers, and with research methods described by Jim Hoover, tomorrow’s law school dean will be under pressure from legislators, provosts, trustees and, increasingly in coming years, shareholders to out source or replace the most expensive components of legal Education . The most expensive components of the typical law school budget being library acquisitions costs and faculty salaries, it will not be hard to guess where the first axe blows will be aimed.

Having has taught both first-year courses using the case method and legal writing courses using intensive feedback, and being an avid consumer of the contents of law libraries, I look with great interest at such portents. My students have used CALI exercises to good effect, and they will use distance Learning courses for their bar examination review courses. On the other hand, my students are my students, and I am keenly aware of many of their needs and obstacles as they struggle to reach their goals, a pursuit that I have shared with them.

In that pursuit, I firmly believe that some part of legal Education can effectively be automated with an increase in the degree to which the student will comprehend and retain considerable portions of the law-school syllabus. On the other hand, I also believe that certain functions of a legal education must be the province of personal experience and cooperation both between the teacher and the student and among the students. These functions, I suspect, can never be automated, even by unthinkably powerful computers, without a fundamental loss to the profession, to the student, and to the public the student will one day serve. The question is, then, what these functions are, and whether they are reasons sufficient to limit or prevent technological alternatives to live classroom teaching.

Put another way, it is reasonable to assume that technology can allow distance Learning for some types of small seminar, then some types of large lecture, and, eventually, even for skills courses such as Advocacy and writing. Why, then, should these courses continue to be delivered by local professors in local schools?

One reason to continue to require personal instruction rather than automated access will be a technical requirement of state bar licensure, that law faculty representatives certify the character and fitness of their students to practice law. While this requirement today means little more than that a student has a record of few arrests or disciplinary incidents, the requirement at least trades on the notion that teachers know their students, which requires live teachers. This requirement alone, however, cannot justify either the whole corps of faculty for a school or the monopoly of schools for the requirement. Thus, the character and fitness rule is unlikely to long impede significant changes.

One reason not to automate might have been that the courses are hard to automate. This would be true if the course really followed a rich model of case method dialogue in the traditions of Langdell, Ames, and Wambaugh, whose searching questions and explorations of alternative approaches and policies may involve questions and answers that are too hard to predict to adequately program. However, this century has seen a steady erosion to the easier use of the casebook to support the class quiz, in which “what are the facts”and “what is the holding”provide a framework for decision trees and feedback loops that may not be easy to automate but for which automation is more than just possible.

One reason not to reduce the corps of faculty might be that the professor has an important role as scholar and public servant, and the law schools serve as unique resources for neutral expertise in the advancement of the law. This argument, already unappealing to anti-intellectuals and radical libertarians, depends upon the empirical truth of the statement, which is not always without doubt.

A more constant reason could be in response to the student’s desire for a focus of interest and a source for guidance in any given course, just as computer software companies that provide on-line and computer-driven help programs, telephone help lines, and detailed manuals are still augmented by live training programs for software users. The student likes having a local trainer, who can be questioned personally, even if the trainer has less information than an on-line source. Even so, to give vent to this demand by students insures that there is an instructor, but it does not insure that the instructor will have the breadth of knowledge or experience within narrow specialties expected currently. A live instructor facilitating distance and on-line learning may support many more courses than the 20th Century stand-up lecturer. Thus, a single teacher may be able, particularly with the aid of non-lawyer guidance and career-counseling specialists to teach four or five times the number of students.

In this way, the career of the law teacher might well follow the career of the small-town merchant. Where once each town supported a shoe store, men’s clothing store, women’s clothing store, and the like, the modern mass market has given the successors to the merchants running these stores a choice, if they wish to stay in the trade. Some very, very few have become specialists selling in a niche or producing mass-market goods; the bulk have become part-time employees of national retailers serving a multi-town market. The result has been a higher volume of available goods and variations in style of these goods, albeit with a sometimes lower quality and always lesser service, but available at lower cost.

So, too, may law professors find themselves faced with a choice, either to join the few national producers of instructional media or to compete for fewer local positions, of increasingly diminished cultural significance, as mere downstream providers of the nationally produced media. In some regard such a change would be similar to the local lecturer who builds a syllabus from a national case-book, but in other regards, it may more profoundly alter the role of the local teacher, whose students look and listen to other voices as those of authority.

What friction may resist such change, or at least alter its course? First is the need to teach local law in local schools. State-owned law schools will be especially unlikely to abandon their classes to multi-state and other national approaches exclusively, although a consortium approach could evolve to provide some of these services. Second is the need to teach particular skills that are hard to automate, such as analysis, research, and oratorical skills. Third, and a likely compelling reason if only for a time, will be the resistance of accrediting authorities. Still, none of these reasons seems to me to be as significant in drowning arguments from budget-cutters as are reasons rooted in the early days of the experience of university law professors.

In some regard, the division between the teaching functions that can be automated and those that cannot can be represented in the differences of emphasis between the teachings of Joseph Story and Simon Greenleaf, both Harvard professors in the 1830’s. Of course, both professors took a considerable interest in the professional development and personal lives of their students, for whose deportment as potential lawyers, they each took a personal responsibility. Even so, there was a critical difference of emphasis in their teaching. Greenleaf, while talking sometimes about the duty of the lawyer or the lawyer’s role in society, was essentially the careful expositor of the lecture, who drilled his students on the finest points of the black-letter law, ensuring that they had a comprehensive grasp of the details of each topic set for his syllabus. Story, while lecturing sometimes from his careful and detailed commentaries, was much more the embodiment of The Law, who told stories about lawyers and judges that emphasized character and the proper virtues of the lawyer.

Between the two, I suspect that there would be a far greater loss of chemistry in attempting to translate Story’s pedagogy from the personal to the impersonal frame. The loss of empathy between teacher and student in moving a live lecture to a computer may be similar to the loss that accompanies moving a play from the stage to the cinema screen, a loss more clear in considering the emotional resonance between actor and audience when thinking of a passionate soliloquy than considering a simple list of production credits.

So I suggest that, while much of the work done by Greenleaf may be mechanically replicable, the work particularly done by Story may not be. Students from whom the law demands character and fitness, drawn from a society that increasingly does not provide strong examples in this regard, must be provided examples in a compelling, personal way.

The irony of this suggestion is that the professoriate in recent decades has nearly surrendered this role, allowing greater distance between itself and the student polity and considering it an impossible, unnecessary, or unenforceable task.(7) Even so, it is precisely this role that is the most powerful reason for professors to continue in their tasks. So long as character, virtue, lawyerly style, and example remain little or no part of the professor’s teaching regime, the teacher may well be replaced by a machine.

Author: international

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