JURIST - Hunter: Dead Professors Walking

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Dead Professors Walking

Dan Hunter, Wharton School, University of Pennsylvania

A little over a year ago I experienced an epiphany at a conference on the Internet and distance education. It was a troubling vision of what teaching law might be like in years to come. Imagine an Online Law School that combines the best that we have in the physical realm, with the benefits of vast opportunities that cyberspace can deliver. A world-famous professor presents a class on Civil Procedure via the web, giving the students the benefit of his vast knowledge and charisma. Students virtually “attend” these classes, as well as undertaking structured writing and learning exercises, and get involved in study groups via instant message and streaming audio dialogs. The exercises, exams and assignments are all extensively graded and commented upon by a group of poorly-paid teaching assistants called “assistant professors” who provide the contact and feedback necessary for student learning. Large numbers of students from around the world enroll in these classes, at less cost than physical law schools, and they have better learning outcomes than in most physical law schools. In the end they graduate with a degree from an institution recognized as one of the best in the world.

With the exception of the final sentence, this is not a vision of the distant future, but is, essentially, what is available today from Concord Law School. Concord is careful to insist that it attracts students from outside the physical-law-school demographic, but only a fool would believe that this is going to last forever. Whatever Concord’s intentions, it is not the only possible disruptive player. Other virtual law schools will inevitably spring up, once they discover that Concord’s enrolments have soared from the teens to over five hundred in less than two years - just as some physical law schools are cutting their entering class size. Moreover, physical law schools are increasingly turning to courseware or ‘virtual learning environments’ to supplement the learning in their physical classes, and increasingly as a way of extending the market for their product. The future of law schools, and the people who work in them, is intricately bound up in the Internet, and the methods of teaching and learning using it.

I’m not interested here in arguing about whether it is possible to deliver appropriate, good, or even tolerably effective legal education via the Internet. For one thing, there is so little thought given in physical law schools to the learning outcomes of students using traditional methods that, frankly, the vast majority of law professors, lawyers, and judges are not qualified to make any comment at all. Any discussion on the problems with web-based legal education should start with the laundry-list of problems with its physical counterpart. But this aside, as the online tools become more compelling, as students begin to demand them, and as law deans and university presidents see the cost differential between this form of teaching and the wholly-physical method, the tide will, I think, be irresistible.

So this is not a polemic on e-teaching. My interest is much more selfish. I want to know what these changes will mean to the structure of law schools, what the legal professoriate will look like and what it will do, and specifically, what are my long-term employment prospects. For if law schools of the near-ish future are going to be fewer in number, and comprised of a small cadre of brand-name professors and a large cohort of piece-work teaching assistants, then I’d better be prepared to take a pay-cut, or start looking for a new way to put food on the table.

In order to understand what these changes might be, I began looking at some of the structural features of law schools, and compared these with the features of industries which had been radically altered by e-commerce. What I found was hardly reassuring.

The Workshop and the Production Line

Physical law schools are currently run a little like craft workshops. Large numbers of well-paid, skilled craftspeople turn out a small number of incredibly expensive, and beautifully made, products, delighting in the fact that they’re getting paid for doing what they love. We all love beautifully-crafted objects, but few of us can afford them. The history of the late 19th and early 20th Century is a history of the industrialization of labor and output, the rise of the assembly-line and mass-production, and the relegation of craftsmanship to luxury items like Swiss watches and Murano glassware. The latter part of the 20th Century saw the industrialization of service functions, like banking, administration, health care, and so forth. And the first part of this Century has seen the movement of these functions into the virtual space.

Each of these movements has been driven by a simple observation: that if you provide a comparable or better product at lower cost, you will survive and your competitor won’t. It is this brute fact of our market economy which law schools currently face. A legal education is a very expensive, hand-crafted, luxury item. This is true pretty-much everywhere in the world - even in countries which subsidize legal education, such as those in Europe, the cost of the education is hugh even if the eventual recipient doesn’t bear it. Law schools have been able to survive, in part, because their product can eventually make the purchaser some money. But then there is also the convenient fact that there has been no mass-produced replacement. Distance education has not, to date, been a compelling educational experience, nor has there been a buck in delivering it.

Internet delivery and e-commerce developments are going to change this. The online teaching methods are becoming better, and the education provided will probably become comparable with, if not better than, its physical counterpart. The initial cost of building online law schools is great. But there is an insanely large amount of venture capital sloshing about, and it doesn’t mind throwing millions of dollars at a completely untapped market. And once built, online law schools scale a lot better than physical ones: the first student of the online school may cost a million bucks to teach, but (assuming the kind of structure outlined above) the second through 100,000th costs a fraction of the cost of teaching the same students in physical law schools.

This observation won’t be lost on physical schools. Not only will we see other, wholly virtual, disruptive players like Concord, we will see well-financed, international branded institutions extending their reach through this technology. Call them the Ivy League Click-and-Mortarboards. More students will have access to better schools, and better education. Brands will matter - both at the institutional and faculty level. Some lower and middle tier law schools will close, upper tier schools will change character. Some, perhaps many, well-paid law professors won’t have the brand recognition to justify their salaries, and will be replaced by more cost effective teaching assistants and distance methods.

Everything we think we know about the eternal verities of law schools and legal teaching will be up for grabs.

Putting the Brakes On

Though the pressures pushing towards virtual law schools are powerful, there are counteracting forces. If we’re lucky, and these counterbalances are strong enough, law schools may remain much as they are now.

The most obvious force comes from accreditation requirements. In the US, the ABA tells law schools what to teach, how to do it, how long to do it for, what clothes to wear while doing it, and what type of chairs must be in the Dean’s office. Law schools in other countries are not typically as much in the thrall of the trade association as in the US; but law schools in many if not most jurisdictions have accreditation requirements overseen by legal trade associations. Online law schools will have to satisfy the requirements of bar associations before they can compete for the same students as schools which have already satisfied accreditation requirements.

The ABA’s Temporary Distance Education Guidelines allow some limited experiments with Internet learning initiatives by accredited law schools. However it is clear that there is heavy emphasis on the word “experimental”. Wholly online law schools need not apply: The ABA’s Rule 304(f) states that “a law school shall not grant credit for study by correspondence.” The physical attributes attendant on ABA accreditation- the numbers and type of books and seats which must be in the library, the size, shape, and number of classrooms and other physical plant, the color of paint to be used on the walls in the Faculty lounge - are both amusingly anachronistic, and an extremely effective bar on the widespread creation of virtual law schools in the US.

While accreditation requirements will inevitably slow the rollout of the technology, they’re unlikely to last forever, or even very long. As soon as the influential, rich, physical schools decide to pile into the virtual space, I suspect that accreditation requirements will magically unravel.

Other forces may provide a longer-term brake on the technology. We may eventually discover that there are some learning outcomes which are impossible to generate in a computer-mediated environment. Some suggest, for example, that the learning generated by an intense Socratic dialog is impossible to create in the online world. I’m skeptical of this view, but at least it helps me sleep at night. I’d be more confident if I were a high-energy experimental physicist: it’s harder for a student to smash atoms in her bedroom than it is for her to learn law.

The best defense is, perhaps, the importance to students of a generational rite of passage, of going away to a school to work together to learn within a like-minded community of scholars. This is a strong force, and an altogether positive one. But I fear that it will not be enough. As the teenage devotees of AOL’s and ICQ’s instant messaging show, community isn’t necessarily built in realspace. Further, generational passage is more likely to be important for undergraduate degrees (which law is in many countries); but in the US law is a graduate, vocational education. And when there are cheaper and better online educations available, the inchoate benefits of the rite of passage is going to seem a little pricey at $30,000 per annum.

Dead Professors Walking?

I previously taught at law schools, and recently moved to a business school. One of the unexpected differences between the two types of institutions is that B-schools self-consciously apply the same management techniques to the running of the institution as they teach to their MBAs. In the last year I’ve been to three or four discussions on how my institution would survive a disruptive e-commerce player in the business school market, what are exemplars of good teaching in this virtual space, whether other comparable physical institutions are moving into this field, what the prospects are for the institution, how we might forestall any obvious disasters, and so on.

I haven’t noticed much discussion amongst law schools in similar vein. I have a few ideas why this might be so: it all seems so far off, technology is not something that most law professors care about, “we don’t do distance education in my institution”, “online law schools are a joke”, etc etc.

I think ignoring this issue is a mistake. Sticking your head in the sand is not going to make the future go away; it just means you’ll have no say in how the future plays out.

Law schools may not change much with the advent of new technology, and law professors might continue to operate in exactly the way we have done so for decades. I may still be well-rewarded for teaching a little, and researching a lot. Each Fall I may continue to dust-off the same set of teaching notes, suit-up for battle, and go forth into the lecture hall, to welcome my new students to their first class. I may continue to wander the leafy grounds of my university, watching as some students race off to their physical classes, some walk to the library, and others lie on the grass looking up at the clouds.

I may be wrong in everything I have suggested here.

I hope so.

© 2000 by Dan Hunter. All rights reserved.
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The views expressed in this column are solely those of its author, and do not reflect those of JURIST, its Advisory Board, its staff or its host institutions.
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Talkback

An extraordinarily perceptive column!
Peter Tillers
Cardozo School of Law
Since 1996, I have been teaching a Distance Learning course in screenwriting at California State University Dominguez Hills. I also teach a televised course on American Society & Television. It is broadcast LIVE on Southern California cable systems and on-line using the Rotor interactive system.
It should be mentioned that CSUDH is technologically advanced and dedicated to the field of distance learning. In fact,when Forbes Magazine looked at more than 1200 Distance Learning programs in the US, they placed CSUDH in the top 10.
At the end of the first year I taught the on-line class, I was asked to serve on a PBS Advisory Board for a Satellite conference in conjunction with the Dallas Community College District. As part of that appointment, I wrote a primer for professors who were seeking the best method of taking their courses on-line.
Having come to the field of teaching from a lengthy career as a screenwriter, I did not bring any preconceived notions or bad habits. I had a need to stay home with three young children - one of whom had been injured at birth and suffered from multiple disabilities - yet I wanted to continue in some professional capacity.
I have to say that my students respond extremely well to the course I designed. Furthermore, they have a very high success rate in regard to their finished product.
I believe that the major reason teachers are resistant to Distance Learning courses has little to do with the "quality" of the educational experience - and everything to do with the amount of work that is required for the professor to design and run an effective on-line course. Furthermore, the potential for peer review is very frightening to professors who have any level of insecurity regarding their own performance. In an on-line course, EVERYTHING is committed to writing. That means that it can be reviewed by colleagues and supervisors. For example, if a student complains about the kind of response that the professor is giving them, the department chair can actually SEE the response and reach an objective conclusion.
I have three sons. The oldest is 14. By the time he enters college, I expect that at least half of his course work will be done on-line - even though we live in the heart of Los Angeles, a mere stone's throw from UCLA. It simply has to happen in order to facilitate the logistics of an expanding student body.
Catherine Bacos Clinch
CSUDH - Center for Mediated Instruction & Distance Learning
Los Angeles, California

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