Law School 2.0

Of MOOCs and Legal Education

There has been much discussion in educational circles over the last couple of months about Massively Open Online Courses, or MOOCs.  It is believed that the ugly disruption at the University of Virginia in June involving the firing and subsequent rehiring of the President was partly due to a perceived reluctance to get UVA involved in offering MOOCs.  (I have addressed this in a previous blog post).  Today’s New York Times Magazine has an extensive cover story about these events, and notes that soon after the President’s rehiring, UVA announced that it was joining one of the MOOC consortiums (Coursera).

It seems that MOOCs have become the media darling of the moment in the education sphere.  Unfortunately, there is much misunderstanding and misinformation surrounding MOOCs. And for the purposes of this blog there remains the question of whether MOOCs have any applicability to legal education, and if so, what that might be.

As a starting point it is probably important to explain the terms that make up the acronym.  Massive refers to a large number of enrollees.  Open refers to the fact that these courses are typically offered to anyone in the world.  Online indicates that they are fully online courses, with no face-to-face contact.  Courses seems obvious, but is not; since enrollees can come and go, complete as much or as little as they want, and do not necessarily receive a grade or any transferrable credit, it stretches the term.

In practice, MOOCs are not new – they have been around for a half-dozen years or so.  MIT and Stanford have offered several technical courses in the form of MOOCs for several years.  One particularly popular one offers instruction in iPhone programming. Some of these courses have enrolled over 100,000 students. No money - or University credit - changes hands.

MOOCs offer something terrific and new in education. But the development and popularity of such courses is not a panacea for financial problems, and they are not as threatening to the enterprise as many seem to think.  MOOCs are being touted as both a financial savior and the end of education as we know it.  They are neither.

The Massive and Open aspects offer educational resources around the globe, for people to whom the possibility of taking a course of any kind at MIT was beyond remote.  Technology has made that miracle happen. And the Open-ness, from a pedagogical point of view, is a great thing, because it brings potentially disparate experiences and backgrounds into a virtual space that otherwise would be impossible on the ground.  If you believe that students in any course in any format learn a lot from each other, then you will probably view the Open aspect of MOOCs as creating educational opportunities that once did not exist.

There is a tendency in the press (including the Chronicle of Higher Education) with new technology to rush to two conclusions: 1) it will make a lot of money, and 2) it will change the world.  We do this, I think, because both have happened in the last 20 years.  A lot of money has been made, and things have changed.  But we forget that a lot of money has been invested in losing technologies, and while technology has changed how we do things, and sped things up, we still fundamentally interact with each other in the ways we always have. 

In my view, MOOCs are primarily a University marketing scheme on the one hand, and a public service on the other.  MIT and Stanford and Harvard and UVA (etc.) all want their “brand” to extend as far as possible around the world. Offering a few courses by their best professors is a good way to do that.  And our most elite institutions should be offering a public service of this kind to the world. I am glad they are.

But I am skeptical that these courses will ever make much money or replace higher education as we know it. 

While these courses might one day become monetized with advertisements or “tuition” payments, it seems unlikely that they will make enough money to be a significant source of income for a large University. This is because as soon as students are paying for credits, they need and expect professors who are involved in teaching the course, and teaching 100,000 students is not possible, no matter the technology in play.  Higher education discovered some time ago that there are financial reasons to have a high student to teacher ratio, but it more recently discovered that there are rarely good pedagogical reasons to do so. And there are other concerns about MOOCs. Many are of the poorest pedagogical design: "lecture capture" and quizzes and questions posted to a forum in the hopes another student might be able to answer. In part because of this, they have very high non-completion rates, and there are many opportunities to cheat.

The stark reality is that all of us in higher education are struggling with this uncontrovertible fact:

The educational system we have today was designed at a time when information was scarce.  Information is no longer scarce.  

This means that the one-to-many model breaks down in the new order. If anyone can get the information that used to be held by the few, then the few (the professors) have to retool and offer something different and better than (mostly) information transfer and summative assessment.

MOOCs are good at information transfer.  (They are also an example of how information is no longer scarce).  As professors retool to offer “higher order” teaching and learning on a smaller scale higher education gets better and more appropriate for the 21st Century, but not necessarily less costly.  MOOCs offer an unqualified good in that they allow for experimentation with online technologies, many of which can be used throughout traditional Universities - much more prevalently than they are now - to provide a better “product” without higher cost.  

And it is here that I take issue with some of the fear about MOOCs.  In an opinion piece in the NYTimes, entitled The Trouble with Online Education, a professor at UVA said this:

Online education is a one-size-fits-all endeavor. It tends to be a monologue and not a dialog.

This is complete bunk, written by someone who obviously has no experience teaching online.  It is the worst sort of generalization that comes from ignorance of the subject, and it is not the sort of research and thoughtfulness you would expect (and hope for) from a UVA Professor.

As someone who has taught many online courses, I can say that - properly designed and developed - they can be better than “ground” courses in some ways, and often are.  But, they are not a financial panacea because the best online courses are no larger than 15 students.  It is not the technology that gets in the way of good teaching, but rather class size and careful pedagogical design.  I wrote about this extensively in Law School 2.0 (at pp. 110-120). Here is one excerpt from that section:

As a substantive pedagogical matter, when I have conducted these “live” classes [where everyone is online together at the same time] I have found them to take the point of difference between an online class and a “ground” class very near to the vanishing point. 

It is interesting that the President of the University of Southern California (USC) recently issued a letter stating unequivocally that: “USC will not offer online degrees in the undergraduate level.” (Emphasis in original).  The argument there is that so much of the ideal undergraduate experience is broader than what is just learned in the classroom, and if they did offer such a degree, much of that would be lost.  The letter goes on to extoll the benefits - and successful experience USC has had - offering online learning at the graduate level, across many of its schools.  So perhaps there is an appropriate distinction between college and graduate school. But even at the college level, some online teaching can be effective, and improve what has gone before.  Note that the President of USC said they will not offer online degrees.

In legal education, we have the ABA limitations that apply to online instruction.  The ABA allows a law school graduate to have taken no more than 12 credits in online courses, and none of those during the first year.  I suspect when we as legal educators become facile with teaching online, and use best practices in online pedagogical design, that restraint will be relaxed.  

Even with that limitation, law professors seem to be reacting with fear rather than curiosity. But curiosity would serve them better.  The “flipped” classroom is an example of something we could all be doing more of today.  The basic information that might be captured in a lecture: that information can be easily put online. This could free up at least some of the “classroom” time for more workshop-based learning, with higher quality one-on-one time with the professor.  This is not hard, it just takes retooling.  And it's probably more fun.  Importantly, it is not a MOOC.  It’s not massive and it’s not open.  And it is not fully online either - it is a hybrid pedagogical design.

Perhaps Harvard Law School will offer a MOOC in American Law Systems (or similar).  That would be a great thing, an international marketing coup and a public service.  But it will not be the new model for legal education.  Instead of fearing MOOCs, we should strive to learn from them, and incorporate the best they have to offer in our schools.  We will improve the product, without increasing cost.  Given all the criticism of legal education - of it being an overpriced product not sufficiently tuned to the needs of practice - both developments would help.

The Practicality of Practicums

The February issue of The Docket, a montly publication of the Colorado Bar Association, includes an article by a former student, Beth A. Tomerlin.  The article, The Practicality of Practicums: Thinking and Acting Like a Lawyer, One Class at a Time, describes the Discovery Practicum course that I have taught at DU Law School for nearly 20 years.  Beth was a student of mine in Lawyering Process in her first year, and took the Discovery course in her second year.  She graduated from the law school in 2007.

Needless to say, it is gratifying to read what a student has written after taking one of your courses, particularly when it is written from the perspective of having been out in practice for several years.  But this is especially true when it makes such a convicing case about how the course helped her be prepared for practice.  For any teacher, seeing a student succeed with what you taught them is immensely gratifying. For a teacher like me who has given so many years to this sort of teaching - well, it doesn't get better.

Although I have to say, it takes some getting used to. I first taught this course almost 20 years ago at DU, as an adjunct professor. I felt like I was about as alone as alone could be. I thought it was working, and my students seemed to think so too (for the most part).  I tweaked the course over the years, and when I joined the full-time faculty in 2003 I revived the course in the curriculum, and have taught it once or twice a year since then.

It is not like this is rocket science or anything. It can be done with virtually any law school course. It is based on the simple proposition of "Learn and Do."  Learn the rules and the cases - the applicable doctrine - and then practice it in between classes.  In my experience, this is best accomplished when the course is designed as what I call a "whole course simulation," organized around a rich problem set.

It is this kind of course that really needs new teaching materials, since a traditional casebook just won't work.  That is why I have been serving as Series Editor on the Skills & Values Series with Lexis for the last several years, and why I authored the S&V book for Discovery.  Although you could use it in several different ways, it is designed to support this kind of whole course simulation (as are the other S&V texts).

In the Discovery course, students read the rule, applicable cases, and some information about strategy and context before class (some of which is in that print book shown above, and some of which is in the Webcourse for the book online), then we review and discuss that material in class, and then the students engage in a mock litigation and *use* the discovery tools and strategies we have learned about in class.  Each week, they prepare a discovery document and serve it on their opposing counsel. The next week we learn about the next discovery rule, and then we practice that one.  I give them feedback on each assignment. Later in the semester they take, defend, and act as a witness in a deposition (with student court reporters taking down the transcript).  And at the end of the course they settle the case in settlement negotiations, and the final paper is their settlement agreement.

There are many advantages of teaching in this way. For starters, it's more fun.  For the teacher as well as the students. As a result, both are more engaged, and engaged learners are learning more. Students love this approach (you may read some of my student evaluations at the link below). Imagine such a course with a professor lecturing about the rules and strategy during class, with students taking a final exam for 100% of the grade.  Well, I suppose students could learn the rules and cases in the traditional class (although I don't think they would learn more substance than what my students learn anyway), but the retention rate would be awful. And they would never actually learn how to draft the discovery documents they will soon be asked to draft in practice.

But don't believe me! Read Beth's article - it's all in there.

When I read the Carnegie Report in 2007 I was gratified to see it argue in favor of more law school courses in which Doctrine, Skills, and Professional Identity are integrated. Because that perfectly describes the goal of the course design for the Discovery Practicum. Students learn the doctrine - be assured of that. But they also begin to develop their skills of using the doctrine (and hone their legal writing skills too - always a good thing). Perhaps most importantly, the simulation creates situations in which the students are called upon to begin to develop their professional identities. What kind of lawyer do they want to be? How will they behave when this situation arises in practice? A typical law school course can *ask* students questions like that, but until they are put in a situation that requires them to confront their own decision making process, they won't really know what their answer will be.  I think that when the Carnegie Report called upon law schools to do a better job integrating Professional identity formation into the curriculum, this is the sort of opportunity they were referring to.

In sum, it is nice that the course is getting some attention, finally. But mostly I am proud of Beth, for working hard in law school, thinking through what she needed out of the experience, and now for making her way in her career. And I am proud that she feels like she received a good education at the DU Law School.  Her article is a good rebuke to David Segal's most recent article in the New York Times, which had the headline: "What They Don't Teach You in Law School: Lawyering."  Ha.

If you would like to learn more about how the Discovery course works, read Beth's article, and take a look at the teaching portfolio on the Educating Tomorrow's Lawyers website.  Also, please feel free to contact me with any questions - I would be glad to help in any way I can.

Article on eTextbooks in Legal Technology News

 

In the Legal Technology News this week Evan Koblentz published an article entitled: Apple, Publishers, Open-Source Dictate Law School Textbook Evolution.  It is a helpful article about the possibilities for future law school textbooks.  It quotes me, as well as John Mayer from CALI.  

As Evan suggests, no one really knows what the future will bring, or the timing of it.  But it does seem that the era of the traditional law school textbook is on the wane.

As I have said before (in the LS2 book and elsewhere), we often think of new technologies as replacing, rather than as being additive.  It makes for good media - "the sky is falling," and all that - but more often, new technologies are additive. We still have records and CDs after all.  We will still have books - a far more useful technology than either records or CDs - for a long, long time.  

The interesting dynamic in the law school textbook market is found in the combination of forces.  We know we need to teach in a different way - not, by and large, the casebook-bound way.  So we need new teaching materials at the same time as the technology is maturing to support the delivery of learning material in new and more effective ways.  It is in the combination of these forces that interesting things will happen.  Will the answer be found in hybrid books (print and online), at least for some time?  Will it be found in eBooks? Will it be found in interactive iBooks? Inquiring minds want to know.

But most likely it will be a combination of these, for different learning goals, and used in different ways for different courses, over a long period of time.  The market is not disappearing only to replaced with a phoenix rising from the sand. The market is fracturing.  Which, of course, presents opportunities for all of us.  Publishers, Authors, and Teachers.

Another article about Legal Education Reform

Yet another article summarizing the discussion about change in legal education, this time by Karen Sloan in the National Law Journal.

This one at least emphasizes the role that employers play in all of this.  If they continue to just hire the "top" students from the "top" schools, they will hinder the reform they say is needed.  Not addressed is how we need to finish our own curricular reform, and certify competency in certain areas before the employers are likely to change.  That's something that isn't discussed much, but is needed. 

What are the learning outcomes of your law school?  Has your faculty articulated those?  Most have not, but if yours has, what are you doing to measure achievment of those outcomes?  Once we can say what it is that we are teaching our students, and have some measurement of how we are doing (other than the bar exam, which has its own issues), then we can demand that employers pay attention to our students, and allege with some authority that they are better prepared than the "top" students at the "top" law schools.

Storytelling is Fundamental

For those who are interested in the storytelling aspects of lawyering, this post might interest. In it, a cognitive neuroscientist suggests that storytelling is fundamental to us as humans, and explains that his research indicates it is based in a left brain function called "the Interpreter." An illustrative quote:

"...narrative coherence helps us to navigate the world – to know where we're coming from and where we're headed. It tells us where to place our trust and why."

Your Storytelling Brain

The University of Denver hosted the Third Applied Legal Storytelling Conference on July 8 - 10, 2011. Session descriptions, with handouts and video of each session, can be found here.

Article about ETL in CBA Legal Newsletter

A brief article I wrote about the Educating Tomorrow's Lawyers project of IAALS was published by the Colorado Bar Assocation today.  Entitled: The Educating Tomorrow's Lawyers Project at IAALS at DU, it describes the Discovery law course I have taught at Denver Law since 1992.  It is a course that is consistent with the recommendations of the Carnegie Report, since it integrates doctrine, skills, and professional identity. And it describes how this course fits with changes that are being discussed for legal education as part of the ETL project.  If you would like to read the article, you can find it here.  A teaching portfolio for the course, with a syllabus, assessment tools, and video of students in the course, can be found on the ETL site.

Rethinking the Legal Profession

Interesting Editorial page piece in Thursday's NYTimes by Adam Cohen: "With the Downturn, It's Time to Rethink the Legal Profession."  You will find it here.  

Adam suggests that the bloodbath currently happening in the legal profession as a result of the economic downturn provides an opening for real change to happen in how legal services are delivered by large law firms.  Over the last decade, the "arms race" explosion in starting compensation for new attorneys has caused some of the problems law firms are currently experiencing.  But so has the culture of partners making huge sums of money on the backs of new associates.  The current financial structure of law firms - which once were able to weather economic downturns fairly well - has left them vulnerable this time around.

Adam argues that the current economic climate is the perfect time to address some of these ills in the profession.  Perhaps starting salaries will be reduced in the coming years.  And he suggests there may be several other forms of a "silver lining" to this particular cloud, such as more talented attorneys going into public service, and if legal fees are reduced, that will benefit everyone - from the corporation to consumers.

Near the end of his piece, he suggests that these forces may also have an effect on legal education.  Certainly, if our graduates can not expect the huge sums of money that many of them commanded in the past, that may put pressure on our tuition rates, and increase the need for scholarships and loan forgiveness programs for public service.  But he also cites the Carnegie report and encourages better use of the second and third years in law school as a way of providing greater value for the cost.  

Although my book went to press before the full implications of the financial crisis had been revealed, I have always thought that the economics of legal education (and the profession) will be the primary drivers of whatever change we might have.  If indeed we have a sustained period of downward pressure on tuition, and a greater focus on value (from the students' point of view) and preparation for practice (from the law firms' point of view), this will increase pressure to leverage technology to more efficiently and effectively deliver legal education.