Where is legal education headed in the next decade, year, or even months? After a century or more of relative stability in both doctrinal content and pedagogical method, suddenly everything is up in the air as a perfect storm of change sweeps through. The storm is marked by the confluence of many factors, including technological advance, shrinking job prospects, escalating tuition and costs, regulatory change, and heightened competition. Nationally, law school applications have dropped more than 20 percent over the past two years. Suddenly, the secure world of law school teaching is facing the kind of restructuring that has battered other economic sectors trying to adapt to global competition and an economic downturn. Remember the movie poster from The Perfect Storm, with the fishing boat halfway up the side of the towering wave, seconds from disaster? That could be us. Law schools are in an alarming spot, and they will need to adapt quickly to properly serve their students and thus to survive and prosper once again.
Law schools are latecomers to this era of change. Throughout higher education, there's an emerging universe of innovation, full of new forms of learning at a distance, new technologies to link up students and faculty, new ways to train for employment and to perfect skills, new goals of competence as citizens and as participants in an information-based economy. Evoking another classic analogy, the problem of the blind men and the elephant, it seems that everyone has a piece of the puzzle, a fragment of the question, a corner of the solution. Can we have teachers deliver their lectures across distances by synchronous video, like Stanford, Harvard, and MIT? Can we use e-book formats that make our casebooks electronically available for the Kindle or iPad? Can we embed our skill-training simulations in interactive games? The answer in each case is yes, but in each case we're asking an insufficient question. The challenge isn't whether we can somehow map the new possibilities onto our old categories. Is this funny, twisty thing that moves and slithers the body of a snake? Rather, we need to invent ways to realize the goals of modern education in the new modalities and forms on their own terms, uncoupled from the old structures of classroom, text, and homework. In the process, we will create new forms of pedagogy and new goals for learning that will connect our students with a richer, more nuanced, and increasingly capable understanding of the complicated world of 21st century law. That snaky thing is in fact a trunk, part of a new and wondrous beast we've never seen before, and the sooner we start looking at the elephant as a whole, the faster legal education can get through its danger zone and on to what it needs to look like next.
Modern education aims at achieving several complementary goals. As the Carnegie Report on law school teaching demonstrates, the list for legal training can be pretty expansive. For the purposes of this essay, we suggest a simplified set of categories. At an overarching level, legal education should help our students to master some domain of knowledge about law and to become adept at applying that knowledge in a successful career helping clients and solving the societal challenges that we entrust to the legal system for resolution. A corollary to this is that we should lay the foundation for passing the bar exam, or meeting whatever qualification hurdle the future may hold. At a more granular level, we can identify four components often present in the process of acquiring this knowledge and capacity: First, our students must learn doctrinal content, exploring deeply the concepts, methodologies, and categories of necessary legal fields. Second, students must have that deep content framed and explicated for them. They need guidance to develop an appreciation of how all those facts and concepts work together and to put them into context in our economic, social, and political life. Third, students must commit a sufficiency of the content, with the help of the framework, to memory. They must absorb enough information, so that they can manipulate it deftly in different situations. Finally, students must practice the application of that information until they perfect the necessary skills. Practice cements the knowledge, and gives it action.
While we believe these fundamental elements of learning are a valid description (exploring deep facts, framing the knowledge, memorizing and metabolizing information, and putting it all into practice), it would be a mistake to view the elements as necessarily linked to particular modalities of delivery just because we have had a century or more of relative stability in our pedagogical model. For generations, since the development of mechanized printing in the 19th century, exposure to deep facts was a task allocated to textbooks. Framing was done by faculty lectures. Memorization was done in the privacy of one's room through drill. Practice was done through homework or repetitive exercises. It was not always so, of course. Before texts were available, much more of the drill, practice, and rote learning was done in class. The technological advance of the text opened up a different, probably more productive, allocation. Nor does it have to be so. Developments in experiential learning have already opened up legal instruction to a new mix.
Just as printing allowed texts from the McGuffey Reader to the Langdellian casebook to change education in the 19th century, advances in technology and pedagogical theory are shaking it all up in our 21st century world. With computers, Internet connectivity, and changing paradigms, the elements and modalities need not line up in the traditional forms. Deep knowledge of information -- particularly rapidly changing information -- may not come from a textbook, but from the Internet, from peer reporters, or from metadata sites scraping and compiling information heretofore unavailable. Framing may still be done by faculty and other learned experts, but not through lectures. The "sage on the stage" (or the equivalent video feed) may morph into an "FAQ" service, a dashboard equipped mentor or resource manager, or a participatory companion or learning architect instead of an isolated knowledge superior. Practice and content memorization may be combined into interactive games where students build skills and learn information as they increase aptitude and understanding.
Of course, the goals themselves may recombine and rearrange as technology opens wider opportunities. Imagine a "book" that includes both content, access to a content guide (a teacher), and interactive games at certain levels to ensure that both knowledge and skills (are they different at this level?) grow as information becomes more complicated. Imagine an interactive training game where the learners could work in a one-player environment until they mastered certain skills, then invite other students and instructors -- or even live clients and the public -- to interact in space. The mock trial or oral argument, kept as a special, often one-time event because of its costs to organize and deliver, could become a repetitive exercise in a world of computer driven simulation, an exercise in which all the elements of doctrinal and skills learning can play out together.
Take the example of evidence. In the traditional world of legal education, an Evidence class would consist of a textbook, a professor who would lecture (or, using Socratic method, call on students throughout class), a few written supplemental materials, and an exam at the end of the semester on the principles of evidence. In the contemporary world, at more progressive schools, an adjunct instructor might oversee a "lab" one or two hours each week to give students practice using those rules.
Here's just one possible vision of how learning evidence might work in the future: Imagine a game that includes all the rules of evidence. You learn each rule by following a simple scenario, and, through trial and error and in-game tutoring, you advance to the next rule. In this game, you start as the sole player, a young attorney tasked with getting evidence in at trial. You arrive in the courtroom before trial, and work with the court clerk to ensure your evidence is correctly tagged. Then, as trial begins, you move evidence in and navigate the objections of opposing counsel and the decisions of the judge. At each interval, you take a turn as the opposing counsel, objecting to evidence brought in by the other side.
As the game progresses and the students increase their ability and confidence, they can invite others to play roles within the game. Instead of a computer simulation of opposing counsel, their roommate (or class rival) can stand in and give live and spontaneous objections and arguments to their attempts to submit evidence. Another student or instructor can join is as the judge and practice making appropriate calls. The game could be expanded to include other schools and even host moot-court competitions among rival institutions.
Where are the old textbooks that deliver content? In the game, the texts (including the rules, the deciding cases, and more) would be interactive text and click-through or drop-down visual elements, available to students at the start of each module and as needed in the middle of practice sessions. Where is the framer, the teacher? That person will carefully guide the development of the game, framing each exercise to ensure that students go down the right path, setting up careful feedback loops within the game to ensure students get the right message. Constant monitoring as the game develops and students participate will also be key instructor roles. Individualized progress will be readily available and can be displayed graphically on an instructor "dashboard." Where is the memorization? Interestingly, students "memorize" best -- that is, metabolize, internalize, and retain information -- when they learn it in the context of practice. And as for practice? A well-designed game will give students so many possible variables of response and learning, that they should be able to inexhaustibly practice the use of content and the skill. When they master the game's initial knowledge goals, the game can morph to a platform for multi-player action and give students increased opportunities to explore and expand their knowledge in both collaborative and competitive settings.
So is the game a class? A text? A simulation? Homework? Again, these aren't the right questions. Is the learning experience delivered locally at a residential school, as part of a distance learning experience, or in some as yet un-tried blend? We don't fully know yet, but law schools will increasingly be forced to find out as they compete to provide value. And will the economics of legal education change dramatically? Many, thinking of the free Internet offerings of a Stanford and MIT, imagine that the costs of education will fall dramatically. Short-sighted law school deans, by contrast, may envision distance programs as a quick fix for increasing revenues with little additional marginal cost. Both views may prove wrong. Quality is still likely to require interactivity with sources of expert knowledge, also known as faculty, and costs may not drop as fully as some predict.
The new synthesis will challenge not just schools but learning material producers as well. As the once lucrative market for casebooks comes under increasing pressure, publishers will face the need to find the capital to develop expensive new products like our imagined interactive Evidence game. But the pricing structures for using the materials may change as well. Rather than selling single copies, should the developer of the game platform go into partnership with the school that houses it as part of its educational experience? Is the school/materials distinction itself going to blur? Interesting times indeed.
As we recreate legal education in the current context of challenge and change, we will be most successful if we don't get too hung up on the old labels and divisions of labor. We probably need the same things to happen (content delivery, framing, memorization, practice), but we don't need them to happen in the old way or in the old order. We need to be willing to move the pieces around, turning the classroom inside out and upside down, so that new instruction approaches don't simply parallel old style learning, but rather that new models evolve that meet our ultimate goals even more effectively, with improvements in both outcomes and price. The freedom -- and the necessity -- to imagine is there, and law schools and other participants in legal education that embrace the opportunity are the ones likely to prosper in the decades ahead.
Rebecca Purdom is Assistant Dean of Environmental Programs, Director of Distance Learning, and Associate Professor of Law at Vermont Law School
Oliver Goodenough is Professor of Law at Vermont Law School and a Faculty Fellow at the Berkman Center for Internet & Society, Harvard University