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Oliver R. Goodenough

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Educating Digital Lawyers

Posted: 01/03/12 03:39 PM ET

America's law professors are gathering in Washington, D.C., this week for their annual meeting of the Association of American Law Schools (AALS). While self-criticism and self-examination are not always the strengths of the legal academy, this year is different. A contraction in applications and placement prospects and the critical assault in the popular media have served to concentrate the minds of the professorate around the future of the profession and the ways law schools educate for that profession. In fact, the AALS program offers a full-day workshop around just these topics.

It's about time. The basic framework of legal education as taught in most American law schools is more than 100 years old. The "Langdellian Revolution" that introduced the case method of teaching, a core first-year curriculum of contract, tort, property, criminal law and civil procedure, and an accompanying mode of analysis and argumentation about how to derive rules from legal opinions was initiated at Harvard in the 1870s and spread during the latter decades of the 19th century. Yes, we have made important additions and modifications, clinical education being a notable element, but these have not threatened the Langdellian core of most of our programs. The influence of the Langdellian approach goes beyond education and has shaped, in a co-evolved system of feedback between teaching and practice, the way we argue about law in court, how we approach scholarship and the very conceptual foundations of the American justice system.

Most lawyers are so steeped in this tradition that we take it as a given, but it was not always so. The elaborated case method as we have come to know it was made possible by technological innovation -- the spread of cheap, mechanized printing in the second half of the 19th century. The preoccupation with textual analysis that is the hallmark of the case method and at the center of Langdell's "science of law" needed easy access to large blocks of text to thrive. It is no coincidence that the West Publishing Company was founded in 1876, the same decade that Langdell's innovations started at Harvard, and that its reporter system was initiated in the 1880s. The availability of a large volume of case reports through a commercial service like West enabled the spread of a jurisprudence that was founded on the analysis of these cases. This evolving jurisprudence, and the education that matched it, fed the demand for the reporters. An intellectual movement coincided with enabling technology and dovetailed with an effective pedagogy to create an extraordinarily stable, interlocking system.

But this stability is disintegrating around us, driven in significant part by a 21st century revolution in technology. The information, communication and processing innovations that we bundle under the "digital" label are, like cheap printing before it, creating a wealth of new possibilities for how we can define, deliver and teach that set of rules and enforcement mechanisms we call law. While specific prediction about what the new world will look like is hard, the general prediction that we are entering into a period of extensive change seems trivially obvious. What is less obvious is whether the members of the AALS will lead the charge or get dragged, moaning and pontificating, into a new age of legal education. As workers across many fields of our evolving economy know, restructuring is painful. Creative destruction often comes at the expense of those most competent in the old system.

The exciting realization that AALS attendees should take to heart is that the outlines of the future of law are open to our design. The question of space is huge. Some relate to government. What does government become as legislation and regulation open up to digital means of access and participation? Do we move to an era of expanded referendum-style law-making where internet voting gives direct, almost instant access to the popular will? What is digital Administrative Procedure? What would a constitutional convention look like if we let eBay design it?

Other questions relate to practice. What do lawyers do when the means of interacting to create legal arrangements like corporations, wills, leases and even families become a set of software options delivered by mobile devices? Does lawyering when it becomes a help desk-style click through in a software platform that automates most standard legal processes? What will dispute resolution look like when the full digitization of discovery migrates the process of fact determination out of a courtroom and into a software platform? Do juries -- the original crowd sourcing -- become a technologically selected and delivered wiki system?

And some questions center on legal education specifically. What will the new method of teaching be that dovetails with this new world of government and law, the true successor to the case method? Will it evolve from distance learning technology? Will it be informed by the emerging cognitive science of education? How will it interact with the ways our incoming generation "digital native" law students experience the world through social networking and other on-demand communication? What subjects will we teach? Will computer programming be an essential element in jurisprudence? Or will it be the new "legal writing?" And what will students need to know about "big data?"

A further question interests those of us whose futures are directly tied to the academy: Who will be the next Langdell, and whose programs will be the model for meeting the challenges and opportunities of educating digital lawyers? The game is on, and Harvard can be taken.