Crossing the Bar

Crossing the Bar--Serving Over the Net: Legal Education Over the Internet


by Josh Ard

Last summer a justice of the United States Supreme Court created a considerable controversy by criticizing a law school. On September 8, 1999, in a speech at Rutgers University, Justice Ruth Bader Ginsburg chastised Concord University School of Law, a school created by Kaplan, Inc., a wholly-owned subsidiary of the Washington Post. The school was criticized not for its political views. Not for the quality of its teaching. Not for the poor success rates of its students. Not for a lack of diversity in the student body. Not for the lack of civility at the school. Rather, the basis of the criticism was the means of delivery of legal education.

Concord is the first completely on-line law school in the United States. Her remarks about Concord were not very long:

Lectures at Concord exist only online, and they are available 24 hours a day, 7 days a week. Students follow the same curriculum and use the same casebooks as at a traditional law school, but their contact with other students is limited to "virtual" interaction, typically by e-mail or in chat rooms, it has been reported.

I greet the advent of the computer age and its manifold prospects for legal education with cautious optimism. On the one hand, if used as a supplement to classroom teaching and direct contact between students and instructors, the Internet can be an invaluable teaching tool. But I am uneasy about classes in which students learn entirely from home, in front of a computer screen, with no face-to-face interaction with other students or instructors. So much of legal education—and legal practice—is a shared enterprise, a genuinely interactive endeavor. The process inevitably loses something vital when students learn in isolation, even if they can engage in virtual interaction with peers and teachers. I am troubled by ventures like Concord, where a student can get a J.D. (although the school is still unaccredited) without ever laying eyes on a fellow student or professor. We should strive to ensure that the Internet remains a device for bringing people together and does not become a force for isolation. [Emphasis in the original; internal footnote omitted.]1

These remarks have led to a detailed dialogue about technology and legal education. One line of debate is whether Justice Ginsburg was factually correct. It appears to be an oversimplification to state that "students follow the same curriculum and use the same casebooks as at a traditional law school." First, given the rapid changes in the technology of teaching materials, even at traditional brick-and-mortar law schools, it is hard to make any meaningful comparisons regarding textbooks. The curricula, however, are the most important concern.

Candace Person, a Lansing attorney is Professor and Director of Health Programs at Concord. She reported that the curriculum design at Concord is much more intensive than at traditional law schools, a view that makes sense to anyone who has prepared any technologically-laden presentation, such as using PowerPoint.2 Much more is required than simply choosing a casebook, writing notes for lectures, and then writing a final exam. For example, professors at Concord have to develop self-testing modules for students to use in their coursework.

The more interesting discussions involve using Justice Ginsburg’s remarks to re-analyze traditional law schools. A long discussion is found at the JURIST3 website http://jurist.law.pitt.edu/colloq1.htm One participant picked up on Justice Ginsburg’s phrase to note that the only interaction many law students get in large lecture classes is to "lay eyes" on the professor.4 Students may get the interaction when called upon, but in large classes that might only happen twice a term. Otherwise, the experience is often as distant as could be. Many participants in the discussion say that there is more actual interaction at Concord because the system is set up to maximize communication among students and between students and faculty. The dean of Concord, Jack R. Goetz, states:

There is no question that the process loses something when someone learns in isolation, but with the on-line education that Concord has devised, nobody is learning in isolation. They are in small groups. They are in communities that we have set up. They have more interaction with the professor than you would get at a fixed-facility law school.5

Of course, both Dean Goetz and Justice Ginsburg were expressing their views without any apparent empirical investigation. A recent theoretical study presents a more balanced picture.6 In research on interactivity (encompassing communication, participation, and feedback), Brent Muirhead found both opportunities and challenges in on-line education. Both professors and students have some communication problems and some students are better equipped to learn on-line.

One criticism of on-line education is that it doesn’t reflect the Socratic method as well as traditional law schools. It is true that on-line law schools are far from the model Athenian education, if only because they are not restricted to upper-class men of the dominant ethnic group in a society supported by slave labor. This openness is a continuation of a movement in modern legal education. Mike Semple Piggott, founder of the world’s first Internet-based law program (at the University of London) recalled earlier remarks of a British justice: "The Law is open to all...just like the doors of the Ritz Hotel."7 Most traditional law schools have made attempts to open doors widely to nontraditional students, many with great success. Proponents of on-line education argue that it expands the opportunities even more widely to those who could not physically come to an existing law school.

Socrates himself described his method as maieutic, that is, acting as a midwife. In one sense of the term, that describes a common caricature of law schools: The professor doesn’t produce learning and doesn’t plant the seed for learning. Rather, he is just there to watch in case any learning takes place. The Socratic method was not primarily a device for humiliation that some consider traditional law school classes to be, as in One L and The Paper Chase. Socrates didn’t ask questions just to allow himself to tell students that they had the answer wrong.8 Rather, he used questions as a device to further the learning process that had to be learner-directed. If learner-directed processes is the core of the Socratic method, the jury is still out on whether this ideal is more often achieved at Concord or brick-and-mortar law schools.

There are two traditional rationales for distance learning, of which on-line education is the latest incarnation. One is to expand access and the other is to cut costs. Clearly, on-line law schools can reach students who might not be able to physically attend,9 but it is not clear that more students can be served with the same resources. While any law school can achieve some economies of scale by having larger and larger lectures, the resources required to have interaction with all of these students become increasingly expensive as the number of students increases. Indeed, some research indicates that the maximum size of an on-line class should be no larger than 40.10

Low costs are apparently not achievable in the short-run, either. The highly-regarded Fuqua School of Business at Duke University offers both virtual and in-person MBA programs. The on-line program costs $89,700, while the in-person program is $52,400. Stanford classes are roughly 50 percent more expensive on-line than in-person. This is not surprising. In the first half of the 20th Century, universities found that quality correspondence education was more expensive than on-campus instruction.11

Concord, however, charges less than traditional law schools. The Concord explanation is that the costs are kept low to remain competitive because Concord students are not currently eligible for federal financial aid. Others may speculate about other rationales. Many of the dot-com companies are losing money now (to a large degree based on marketing expenses and attempts to gain maximum market share) in hopes of great rewards in the future. Kaplan may be using the expertise gained in Concord for some future plans: If not simply for enrollment growth, then possibly for pre- or post-law school trainings.12

Some of the higher costs of on-line education possibly are start-up costs that will not have to be repeated, leading to greater economy in the future, yet revisions will nevertheless be required. For example, Concord has spent a considerable amount of time and money in securing its website for students, but these efforts will probably have to continue as ways of defeating the current security are devised. Moreover, many courses in the law will have to be revamped regularly to reflect changes in the law. It may be that Internet education is more feasible for fields such as Shakespeare and art, where changes in the subject matter are presumably not as rapid as in the law. Of course, changes are less pronounced in certain areas of the law, such as personal property law.

Traditional brick-and-mortar law schools are concerned about the threats of Internet-based education. A. Michael Froomkin, a professor at the University of Miami School of Law, argued at the last annual meeting of the American Association of Law Schools that the Internet will have a profound effect on law schools.13 Some will be winners and some losers. He felt that the prestigious law schools, such as Harvard, will have the well-known brand names and will succeed; the losers will be the second- and third-tier law schools.

In other words, the Harvards will be the premium product and can attract the most business at the highest price. The others will have to compete on price and will have to cut costs, perhaps in the library and perhaps in faculty salary. In his view, some of the second- and third-tier law schools will close and their faculty will become graders and chat-room supervisors at the prestigious websites. While he may have a point, this is not the history of the Internet so far. Brick-and-mortar businesses with the greatest name recognition do not dominate the net. Amazon.com is dominant over Barnes and Noble. Moreover, all Internet retailers now compete much more on price than quality. If this were true for Internet education, then the cheapest school would be dominant, not the one with the best reputation.

Another problem for law schools is that the infrastructure of the Internet is expensive. John Brennan, Vice President for Technology at Thomas M. Cooley Law School, fears that independent law schools might not be able to raise the money. Schools may feel compelled to show that they are technologically up-to-date. Schools, such as Cooley, which have emphasized access for qualified, nontraditional students, may feel a particular pull towards Internet instruction. State-funded schools could have greater resources for the huge start-up costs. Of course, state legislatures might not see the need for such expenditures and might abandon the Internet. According to Donald Noble,14 universities essentially abandoned quality correspondence education when the true costs were realized.

The future is likely to be interesting.

Footnotes

1 Available on-line at http://rutgers-newark.rutgers.edu/occ/speech.htm

2 This seems to be the general pattern in on-line education. Faculty members typically report that it takes more time and more technical skill to present courses in a distance-education format, according to a study reported in the Chronicle of Higher Education. Sarah Carr, ‘‘Teaching Distance Courses is Rewarding, Survey of Instructors Finds.’’ Available at http://chronicle.com/free/2000/02/2000031501u.htm

3 JURIST is a law information Internet site sponsored by the University of Pittsburgh School of Law.

4 It is interesting to note that the United States Supreme Court is one of the last courts not to allow television. The idea that participants themselves can appear remotely on a television monitor is probably not within their radar, although this possibility will be realized in the new Ingham County courtrooms.

5 Sarah Carr, "Logging in with Jack R. Goetz: Founding Dean of On-line Law School Defends Its Approach." The Chronicle of Higher Education. Available on-line at http://www.chronicle.com/free/v46/i20/20a040502.htm

6 Brent Muirhead, "Interactivity in a Graduate Distance Education School." Educational Technology & Society 3(1)2000. Available on-line at http://ifets.ieee.org/periodical/vol_1_2000/muirhead.html

7 Found in a discussion in JURIST, cited above.

8 Several scholars have noted the relationships between education and punishment, especially Michel Foucault in Discipline and Punish: The Birth of the Prison, translated from the French by Alan Sheridan. New York: Pantheon Books, 1977. Note that the essence of the Socratic method, questioning [used as the topic for the Socratic method in the Library of Congress subject matter listings], is used in the name of one of the more famous reigns of terror, the Spanish Inquisition. Several participants in the JURIST discussion noted the tradition of humiliation and corporal punishment in traditional British education.

9 Traditional law schools have made much progress in increasing access. For example, Thomas M. Cooley is the first law school to have a weekend option approved by the ABA. Some students maintain their family at home and commute over a thousand miles part of the week to attend law school.

10 According to a report "The Online Pedagogy Report" from the University of Illinois, as discussed in the Los Angeles Times on-line edition.

11 The facts are detailed by Donald R. Noble, "Digital Diploma Mills, Part IV: Rehearsal for the Revolution." Available on-line at http://www.communication.ucsd.edu/dl/ddm4.html Mr. Noble’s views are described in an article in the Chronicle of Higher Education: Jeffrey R. Young, "David Noble’s Battle to Defend the ‘Sacred Space’ of the Classroom." March 31, 2000. Available on-line at http://chronicle.com/free/v46i30/30a00101.htm

12 On-line education would seem to be ideal for many CLE programs and might be equally suitable for bar review courses.

13 His speech is summarized in an article of the Chronicle of Higher Education. Wendy Leibowitz, "Law Professors Told to Expect Competition From Virtual Learning," The Chronicle of Higher Education, Jan. 21, 2000. Available on-line at http://www.chronicle.com/free/v46/i20/20a04501.htm

14 Noble, n 11.

All columns are the opinion of the writer and do not represent the position of the Legal Education Committee.



Josh Ard
Josh Ard is litigation director at the Sixty Plus Elderlaw Clinic of Thomas M. Cooley Law School. He is an officer in the Elder Law and Advocacy Section of the State Bar and a member of the Legal Education and Unauthorized Practice of Law committees. He holds a Ph.D. from UCLA and a J.D. from Thomas M. Cooley Law School.


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