LESSONS FROM THE WEB

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The Web and Legal Education: What Kind of Innovation is It?

James R. Elkins, West Virginia University College of Law

"Innovation is ipso facto dangerous, for if it endangers nothing else, it endangers the safety of a satisfied mind." - Robert Grudin, The Grace of Great Things: Creativity and Innovation 143 (New York: Ticknor & Fields, 1990)

1. Legal education is a rather peculiar place when it comes to innovation. Law teachers have a great deal of autonomy, relatively light teaching loads, and some of us are known to study and make use of disciplines far and wide. With the demise of law as an autonomous discipline (or so proclaimed by none other than Richard Posner and celebrated by no small number of us), one might expect greater momentum in innovative change in legal education. Yet, there are still law school colleagues who act less on the basis of intersecting disciplinary perspectives in legal scholarship and far more on their autonomy as masters of small educational worlds in which nothing unexpected is allowed to intrude. With nothing unusual to perplex or to baffle them, our colleagues are indeed ruling masters of small universes.

2. Consider the following anecdotal evidence. I have had wide-ranging discussions over the past twenty years with law teaching colleagues about the possibility that some new, developing, or emerging trend in the world of discipline scholarship of which we have become aware might be used to inform, strengthen, broaden, or deepen our usual approaches to law school pedagogy. Early in my teaching career, it was simply jurisprudence I thought might be made a more focal part of law teaching and the law school curriculum. My colleagues assured me, with some satisfaction, that we all (or most of us) teach jurisprudence and that my concerns were exaggerated. A few years later, I began to trace the development of the "humanistic perspective" in the social sciences and participated in efforts to bring the perspective front and center in legal education. My colleagues again assured me, that we were, for all practical purposes, already engaged in humanistic teaching. They found nothing in the "humanistic perspective" to raise questions about their teaching. And so it goes, one innovation after another.

3. There is now, from various quarters, interest in still another innovation, the Web (sometimes referred to, some say mistakenly, as the Internet) which has captured our attention. How will colleagues, some who rule as sovereigns over their classroom universe and still others who acknowledge that law has no serious claim to being an autonomous discipline, deal with the possibilities and promises held forth by web-based teaching? It may, in this instance of innovation, be more difficult to say, "we are all already doing it." The use of the Web cannot be assumed or faked. You either use it or you don't.

4. The Web may (and I use the word may deliberately) turn out to be an innovation that simply cannot be ignored. For some colleagues, the effort will be to view the Web as little more than a fancy new tool, like chalkboards and overhead projectors. Still another possibility is that the Web may turn out to be more than a helpful new tool, it may be one of those technologies that fundamentally changes education. Many of the innovations which come our way as teachers can simply be ignored, the most useful can be adopted without changing the way we teach, and then there are innovations/technologies/tools that have so have a bearing on our identity and purposes that we have little choice but to change.

5. Consider Christopher Columbus Langdell's introduction of the case method and his efforts to locate legal training within the university and to have this training considered a form of education. Langdell's innovative methodology resulted not just in a new, optional pedagogical tool, but became the foundational basis for what was to become established conventional practice in American legal education. In these closing years of the 20^th century, and the decline of scholarly support for the proposition that law is an autonomous discipline, legal education seems perfectly poised for fundamental change of the sort Langdell initiated. Yet, most law teachers assume that the world of legal education will continue as it is today, and that while the Web is indeed new, it will not be allowed to intrude on our pedagogical complacency and cloistered ways.

6. I've been trying to figure out my colleagues (at least those I know best) and their seeming lack interest in the Web. My first impulse is to lay it to a mind-set that has us already knowing and doing everything that is truly worthwhile. This "we know it already" mind-set springs from the arrogance that streaks through so much of legal education. While most of my colleagues know something about the Web, few have actually immersed themselves in it. They know the Web the way some students read law cases, superficially. Absent the experience of being "taken" by the Web, immersing themselves in it, losing track of the hours and days, intrigued and admiring of the variety, style, and content of Web sites that revisit old ideas by new paths, heads swimming with images, fevered with new possibilities for teaching, its unlikely that the Web would be viewed as the kind of innovation Langdell left us.

7. And how do we decide whether to make use of the Web in our teaching? We might want to speculate about the reasons one might have for making the move toward the Web and reasons for leaving the Web to others to explore.

Reasons for Using the Web

Reasons for Leaving the Web to Others

"I'll give the Web a try; it seems to be catching on and is fashionable these days."	"The Web is fashionable now, but I'm not interested in fashionable ideas and pseudo-innovative teaching methodologies."
"I must learn more about the Web. I'm afraid I'll be left behind by more technologically adventurous colleagues and even by students who seem to increasingly be interested in and knowledgeable about the Web."	"There's no reason to be concerned about being left behind since the kind of teaching I do--careful reading of judicial opinions, developing a strong sense of the doctrinal developments in law, precise articulation of rules of law established in judicial opinions, application of judicial and statutory rules to new fact patterns--is always in short supply and cannot be taught by machines (even by computers)."
"I want to learn more about the Web because law students are increasingly being asked to work with computers, both in law school, and in their firms. Computerized legal research is now the order of the day and computers are increasingly a tool used to manage complex cases, and will increasingly play a role in all our work and litigation."	"We cannot let ourselves become prisoners of our student's expectations about the use of technology, or anything else. We should not abrogate our role as teachers, since, by learning and experience, we know better than our students what is appropriate for legal training."
"In using the Web, I hope to become more efficient as a teacher. The Web may be exactly what we need to help students focus on materials and issues that will most benefit them in the practice of law."	"The virtue of good teaching does not lie in efficiency, or indeed, the search for ever new methods to provide more information to still larger numbers of students. Neither teaching methods nor curriculum should be based on a crude utilitarian calculus. Teaching is always one-to-one and mind-to-mind. It requires individual commitment and 'local knowledge,' neither of which are fungible commodities or likely to be found in abundant supply with the advent of computers."
"Students learn in different ways. We may help different kinds of students with different learning styles be better learners if we make use of the Web."	"There is recurrent talk about individuals as learners, and today, much talk about learning strategies. There is, in truth, only one way to learn; every student must walk the same path. There is no technology, no methodology, that makes learning easy or free of frustration. "Learning is a time-consuming labor, a matter of commitment, hope, failure, and perseverance. "Learning requires development of basic cognitive skills, improved thinking (rational analysis), enhanced writing skills (achieved only by practice that develops into habit), and knowing how to put "learning" to use in the real world. No, there is only one way to learning and the promise of short-cuts by way of new methodologies and technologies should be viewed skeptically."
"Actually, I'm interested in the Web more as a matter of intellectual curiosity than anything else. I'm curious about the Web because I have always tried to make change a part of my teaching and want to continue to do so."	"We do not need new technology to demonstrate intellectual curiosity. It is the care and attention we pay particular texts and the quality of the questions we present our students, our willingness to take up again and again, old texts with new students that must command allegiance. It is not the intellectual curiosity of the teacher that is at stake in learning, but that of the student. Good teachers are not necessarily intellectual adventurers."

8. In Zen and the Art of Motorcycle Maintenance (1974), Robert Pirsig tells of riding motorcycles with his friends, John and Sylvia, and discovering, that his friends know nothing about motorcycles, indeed, refuse to learn even the most rudimentary basics of motorcycle maintenance. The result is that they leave motorcycle maintenance to the mechanics even while they experience all manner of frustration and break-downs. Pirsig finds this both peculiar, and at times, annoying. The situation, according to Pirsig, appeared initially as a rather "minor difference" but, like a bad tooth, not easily forgotten. As Pirsig mulls over the problem of this "minor difference" between friends, he begins to see that their different approaches to motorcycles had a deeper meaning, that underlying the difference was a more fundamental divergence in their visions of reality. Pirsig concluded that he and his friends had different visions of reality and they "don't match and they don't fit and they don't really have much of anything to do with one another. That's quite a situation. You might say there's a little problem here." (Zen and the Art of Motorcycle Maintenance, at 61). We may have something of a similar revelation of divergent pedagogical world-views in the emerging Web/non-Web camps in legal education. What may initially appear as "minor differences" may turn out to reveal more fundamental differences.

9. Should my colleagues try to make use of the web in their teaching? My response is yes, but the yes says as much about me and my sense of myself as a teacher as it does the Web. In adopting or ignoring the Web we say something about who we are as teachers, about our views of legal education, and about what we think is going on in legal education and what we hope to see happen in legal education in the new century.

10. Let me make clear--I am not a computer junkie and do not view computers as sacred objects. My own focus in teaching--the illumination, exploration, and reflection on the promises and pitfalls of a life in law--does not depend upon computers. I have taken up with the Web, as with other innovations, not from love of technology, but rather to keep myself and my teaching alive.

Endnote: The views expressed here were first presented to my own faculty in October, 1998. The web-site created to accompany the presentation, "Teaching With the Web," can be found at http://www.wvu.edu/~lawfac/jelkins/teach.html.

Previous columns in this series:

• Web Publication of Early Case Law: Decisions from the Courts of New South Wales, Australia
  Bruce Kercher, Macquarie University School of Law, Sydney, AUSTRALIA
• The Creation of the E-Book on International Finance and Development: A Journey into Cyberspace
  Enrique Carrasco, University of Iowa College of Law
• The Virtual Teacher
  Patrick Wiseman, Georgia State University College of Law
• Build It, and They Will Come: Using a Web Page as an Effective Extension of Your Classroom and Faculty Office
  Pedro Malavet, University of Florida School of Law
• The Rewards and Risks of Authoring a Web Site
  Barbara Glesner-Fines, University of Missouri-Kansas City School of Law
• Teaching With the Web
  Jerry Kang, UCLA School of Law
• Re-thinking Electronic Casebooks
  Gary Neustadter, Santa Clara University School of Law
• Planning a Law School Web Site
  Mark Gould, Faculty of Law, University of Bristol, UK
• Takeovers that Overtake the Traditional Classroom: Web-based Simulations as a Law School Learning Environment
  Robert Lawless, University of Missouri-Columbia School of Law
• Copyright, Academia and the New Scholarship
  Kim Dayton, University of Kansas School of Law
• The Four Corners of the Academic Website World
  William Slomanson, Thomas Jefferson School of Law