No Path But One: Law School Survival in an Age of Disruptive Technology
77 Pages Posted: 2 Apr 2014 Last revised: 15 Jul 2017
Date Written: 2013
Traditional law schools are in danger of disruption if they fail to understand that technology will enable – indeed, is now enabling – new legal education competition to emerge. The new competition will be highly flexible, unencumbered by expensive legacy costs and, because it will reside mainly online, so scalable that no traditional law school will be immune from its impact. In undergraduate college education, venture capitalists and universities themselves have poured substantial resources into various forms of online education learning, and several state governors have pressured the public universities of their respective states to utilize online learning to provide a college education at greatly reduced cost. The same forces eventually will direct or increase their attention to legal education. When they do, traditional law schools had better not be focused merely on remaining one step ahead of competitor schools.
In our view, there is an opportunity to preserve the traditional place-based law school. To seize that opportunity law schools must commit themselves to an educational model that, to a greatly heightened degree, attempts to remedy flaws in the traditional school that have been identified over and over again in a series of measured and independent studies ranging across almost a century.
We reach this conclusion via the following chain of reasoning. To make a long story short (the long version is the full article), law schools have strengths and weaknesses, each of which, in general, have been long understood. We discuss both in, respectively, Section I (strengths) and Section II (weaknesses). The shortcomings, namely, an extremely narrow focus that leaves most practical skills completely ignored or given only cursory treatment, has been defended in recent years more often out of necessity than out of conviction. Law school is expensive, and to teach more practical skills, the argument goes, would make it more expensive still. In the current environment, the argument continues, such a course is simply not feasible.
The problem with this viewpoint is that in the service of an assumed practicality, it dooms law schools both to mediocrity and to extinction. Professor Henderson is correct when he states that “the most serious problem [law schools face today] is inadequate quality.”
After having reviewed the strengths and weaknesses of law schools in Sections I and II, Section III briefly illustrates the speed with which the internet has unsettled and upended industry after industry, including industries many times larger and richer than legal education. We then assert that the internet is likely to continue to propel unsettling change of this type for some time, and that law schools will not be immune.
Later in the article we rebut several counter-arguments to our view; however, to forestall misunderstanding, we address the most consequential counter-argument first. That argument proceeds as follows: “Law schools have, more or less, a government-granted monopoly over legal education that is enforced through bar rules that limit admission to graduates of approved schools and through accreditation rules that, among other things, limit distance learning to a few courses. Bookstores did not have anything like those protections – law schools accordingly are not similarly situated – they are safe from internet-based competition – the comparison to other industries is, therefore, inapt.” To the extent that this argument suggests that current regulatory advantages obviate the need for law schools to make fundamental changes in order to assure their survival against current or future online competition, we believe it is incorrect.
As other industries have discovered, internet companies do not merely emerge as new competitors on a particular playing field, but they also have demonstrated the ability to change the rules governing what takes place on that field. As the cost advantages of distance learning become more pronounced, as distance learning techniques and technologies improve, as distance learning companies become larger and more well established, and as the distance learning experience becomes more commonplace among undergraduates, the chance that the regulatory moat protecting law schools will be left undisturbed will decrease – all else remaining equal.
The chance that the regulatory status quo will prevail – again, all else remaining equal – begins to approach zero when one realizes that, by their choice to adhere to a basic curriculum and pedagogic approach that is little changed since the 19th century, law schools have substantially increased their vulnerability to internet competition. Some industries, of course, are little bothered by the emergence of digital culture. If a barber has nightmares, they probably are not internet based. The problem for law schools – and the reason that the internet could become a living nightmare for them – is that the analytical and doctrinal training law schools have emphasized for more than a century is precisely the legal training that is most amenable to being taught over the internet. Indeed, in every school, the essence and greater part of the great majority of courses could effectively (or serviceably) be replicated online. Under these circumstances, as online education develops elsewhere, law schools will find that they cannot credibly or persuasively make or maintain the argument that they should be insulated from online competition.
That is the bad news for law schools. The good news is that circumstances can change – all else does not have to remain equal. Law schools have the luxury of having a choice – which may remain available only a short time – as to whether, in the age of the internet, they want to become more like barbers or stay, vis-à-vis their vulnerability to internet competition, like traditional booksellers.
The first step to choosing survival begins with the candid admission that a uniformity of approach and a system-wide concentration on an extremely limited range of legal skills has assured mediocrity in legal education, in the same way that a golf school would be mediocre if it presumed to provide a “tournament ready” golf education but taught only putting. The existence of a well-regarded, century-long line of criticism of law schools on precisely these grounds lends this admission a fair amount of credibility. Such an admission paves the way for schools then to argue that the accreditation of online law schools, whose ambition is simply to replicate the curriculum of the traditional school, is undesirable because it necessarily would perpetuate and extend mediocrity – and this at the very moment, the argument must continue, that traditional law schools have, for the first time, the potential to move beyond mediocrity. Indeed, if law schools hope to maintain credibility throughout the entire line of this argument, by the time the question of accreditation of online schools arises seriously before law school accreditors – and that day is coming soon – law schools must already have taken substantial steps toward realizing their potential to move beyond mediocrity.
What is the source of this new potential? The same technologies that threaten law schools also could be employed to help protect them from “pure” online competition. The next paragraph explains how this could be so, after beginning with a discussion of what law schools must do to raise the quality of the education they provide.
In brief, traditional law schools must move the norm in legal education to a place where online schools cannot follow, by mandating the extensive teaching of the many practical lawyering skills that require, to be taught effectively, face-to-face, in-person interactions. As noted earlier, such an attempt to improve the quality of legal education brings with it cost objections. The realities of cost constitute a measure of the challenge that must be undertaken, but they cannot be allowed to stall legal education reform efforts, for adherence to the mediocrity of the status quo will work only to accelerate the eventual triumph of online law schools. Does the need for reform and the reality of cost pressures place law schools between a rock and a hard place? Yes it does, and to deny the dilemma is to engage in wishful thinking. What law schools face, in the end, is a real life testing of the aphorism that “necessity is the mother of invention.” The only way forward is to innovate. In this day and age, the locus of innovation is the internet. Considering all of these factors together, the mission becomes plain: at the same time that law schools expand their clinical and other experiential course offerings, they also must dedicate themselves to migrating online whatever educational content can be migrated online. They can pursue this objective alone and in a consortium of like-minded schools. They can utilize publicly available web materials, with the professor acting as an aggregator and guide, and they can develop original materials. There are many options, but the ultimate task is not optional: law schools must utilize the internet to drive down costs.
Although this end is commonly achieved in business, success is not inevitable. Reaching the goal will require enormous effort and creativity, and the firm rejection of some comforting shibboleths. Accordingly, Section IV begins with some advice on how to foster, within a law school, creative thinking about the school and its educational mission (to be followed by creative action), and discusses habits of thought that could undermine a creative response to the current situation. See infra, Section IV(A). The second half of Section IV then concludes the article with a number of suggestions designed to keep law schools on the right path as they progress toward the necessary goal of making law school both more broadly practical and more internet-based. See infra, Section IV(B). Our approach, we note again, not only will raise the quality of a law school education, but is the only way to ensure the survival of the only institution capable of providing an enhanced legal education, the place-based law school.
Keywords: legal education, law schools, pedagogy, online education, online learning, legal education reform, law school history, distance learning, blended learning, technology, internet
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