Peter W. Martin, Jane M.G. Foster Professor of Law &
Co-Director Legal Information Institute, Cornell
Prepared for the April 2000 Conference of the
Commonwealth Legal Education Association
I. Introduction
At last year's CLEA meeting I presented a paper that explored how digital technology could be used by both law schools and individual law faculty members to assemble and distribute course readings.[n1] I began with the premise that despite the wide range of educational practices in law schools around the globe, assigned readings held an important place.
Whether the regular meetings between faculty members and students are conducted in large gatherings or small, through lecture or more interactive techniques, our pedagogy presses against texts the students are expected to read -- all of them, the same texts, more or less at the same time.
That paper reviewed the numerous drawbacks of commercially prepared and distributed course books and explored ways in which law teachers could draw on and contribute to the Net's rapidly evolving virtual law library to achieve cheaper, more appropriate and timely readings.
This successor paper turns to several other components that comprise most law school courses and ways that digital technology can be deployed, cost effectively, to loosen the grip of "the classroom" on our delivery of legal education. Higher education is abuzz with talk about "distance learning" -- talk that is at once hopeful and fearful, and generally more focused on specific technology and potential "new markets" than on pedagogical aims and suitable new means. This paper can be understood as being about "distance education" but none of the techniques it covers need to be practiced at a great distance. Indeed, all warrant consideration by schools with large resident student populations as supplements to or partial substitutes for classroom based instruction.
These reflections rest on personal experience. For three successive years, 1996-1999, I taught a law school course via the Internet with students at four different U.S. law schools. This coming year our Legal Information Institute will offer two courses, in a somewhat different format, to students at larger number of institutions. This paper attempts to summarize what I have learned about teaching without a physical classroom and to explain the judgments about technology and pedagogy that are shaping the LII's "distance learning" offerings for 2000-2001.
As I observed last year:
Whatever the level of technology support, student preparation, or other factors, university-based legal education as it is commonly practiced is assembled from a core set of activities and inputs. How these are assembled (the curriculum) varies considerably from one national setting to another. Individual inputs -- including notably the prior background, existing skills, relative affluence, and educational expectations of incoming students -- can also vary enormously from school to school, country to country. But amidst this variance lie a very consistent set of constituent elements. They relate to the nature of the work we expect of our students, how we assist their learning, and the means we use to measure their performance and progression.
Alongside assigned readings, regular meetings with students are an important common feature. Such meetings serve numerous purposes and sometimes carry names that reflect distinctly different uses of the time and space -- "lectures" or "tutorial" sessions, for example. In addition to the evident purposes these meetings serve, they fulfill a number of less obvious functions that any pattern of education that "loosens the grip of the classroom" must find other ways to achieve.
II. Using Digital Technology to Supplement or Supplant Classroom Meetings
A. The Linked Online Lecture
1. On Demand Teacher Presentation on a Course Topic
Some U.S. law teachers may bristle at the suggestion that they lecture in class, holding firmly to the view that they practice the "Socratic method." When pressed, however, most would acknowledge that they, like their colleagues in countries where lectures are a regular part of curricular design, devote substantial portions of their meetings with students to presenting prepared material. Depending on the time, topic, student background, and adequacy of the assigned text they lecture in order to: place the readings and topic in historic or local context, summarize the sometimes conficting views of legal scholars not represented in the text, focus student attention on certain key themes or points, present one or more problems for student reflection and later discussion, report on recent legal developments. While the teacher speaks on these and other matters, the presentation may well involve more than the spoken word. It is not uncommon for the teacher to draw student attention to particular passages in the assigned reading or draw diagrams, key terms, and a lecture outline on the chalk board or some equivalent.
The computer-based technology I shall use to address you in Australia offers a powerful alternative to gathering students in a room for such presentation purposes.
Where teachers are not scarce and computers are such a high tech alternative may seem a remote possibility, and in other settings the attractions may come linked to important qualifications. Putting both issues of implementation and other drawbacks to one side for the moment, consider what a digitally recorded lecture linked to the assigned text and other relevant materials can mean for students. Most obviously this form of delivery means that students need not all gather in the same place and the same time for the lecture. A related benefit is that the professor who is assigned both a day and an evening section of the same course need not repeat the same lecture twice. The tight integration of text or other illustrative material and lecture provides a capability that only high-tech lecture halls and nimble presenters can offer. To illustrate, in my on-line copyright course, I shall be able to discuss section 102 of the U.S. copyright act and place its text directly in front of the students as I do so. Furthermore, since this is a text on the Web and includes hypertext links to all related portions of the act I can follow one or more of those paths or a student can. Even as I am speaking about section 102, a student can observe that the word "fixed" is linked and pause the lecture in order to inspect the definition of that term in section 101. In my on-line course on Social Security law I can bring up a table prepared by the administering agency, as I discuss the relative importance of the program's spouse benefits for men and women.
In either case, students can exercise a degree of control over the pace of presentation that no lecture hall allows. Imagine a student intervening during a lecture to say, "Professor, would you please be quiet for a minute while I think about what you just said and reread the text of the statute along with associated definitions?" Is it more or less unthinkable than a student request that the teacher repeat the point she has just devoted 5 minutes to developing -- for any reason, ranging from a belief that her views and the text may conflict to the student's having lost concentration? Streaming audio and streaming video allow the student to break in, in pursuit of greater understanding or mastery, in precisely these ways. A student can pause the professor, replay all or a portion of a lecture, and even return to a topic that still puzzles toward the end of the course.
What about cost and technology barriers? They may seem greater than they are, although surely there are many law school settings where implementing such a multi-media lecture would require major technology investment. There are two sides to the technology access equation. The students need access to computers that can deliver sound through speakers or a set of headphones and have a CD-ROM drive or network connection or both. A few years ago, new computers did not necessarily come with sound or a CD-ROM drive; today most do. As for preparing lectures for digital delivery, the technology is now within the reach of most law schools and computer-experienced faculty. For my on-line lectures next year (and for this CLEA presentation) I am using software that runs on an ordinary pentium class computer, costs $69.95, and requires very little time to learn. (As is generally true, the challenge is not learning how to run the software but figuring out exactly what to say and what to have on the screen at the time. In short, the content, not the novel delivery system is the big issue.)
There are related pedagogical issues that past experience with both classroom and on-line teaching prompts me to identify. Most of us lecture to the clock as much as to the topic. Whether the lecture period is 50 minutes in length, 70, or 120 that will often be both too long and too short. The period is too short every time the teacher is in the middle of a topic when time has run out. It is too long for students who need a pause after one point is complete before being ready to think about the next.
My conviction, reflected in the design of the on-line courses I am preparing for next year, is that the presentation elements ought to be broken up into modules that will run, uninterrupted for no more than 20 minutes but that these modules should fit the topic rather than some arbitrary length.
2. Recycling Valuable Content
Many of us like to see ourselves as delivering unique, freshly crafted education day by day, course by course, year by year. We may draw upon information products prepared by others, as well as assorted tools and props but the verbs we use to describe our work, "teach" and "educate" connote real time, ad hoc, interactive service.
When honest with ourselves, we know that much of this is mythology. What to successive cohorts of students appears fresh, even hand-tailored to their needs often has a significant core of recycled content. (Students are often far more aware of this than we may suspect.) The potential gains available from converting discrete portions of that content into pre-programmed course modules are compelling large. The vision is of a shift from a lecturer at the front of the room speaking from slightly revised notes each year to recorded presentations by skilled lecturers distributed on disk or served on-demand from the Internet. Properly structured in modular digital format, these lectures, too, can be revised as appropriate every year. The critical difference is that only the changed portions need to be repeated by the lecturer. That holds the prospect or the threat of freeing up faculty time for other educational applications.
3. Reconfiguring Presentations for Different Audiences
Modularity also holds promise of a second form of reuse. The classroom lecture is premised on an assumed core audience. If delivered to a mixed group of domestic and international students or professional degree candidates and interested students from other disciplines or professional study programs, a fixed lecture necessarily reaches some more effectively than others. It is my conviction that by breaking lecture content into suitable prerecorded modules it should be possible to assemble separate versions of a course on the same general topic for distinct student groups -- ranging from lawyers pursuing ongoing professional development through domestic law students to students and professionals in other fields. Both subjects on which Cornell's Legal Information Institute will be offering on-line courses next year -- Copyright Law and Social Security -- have this potential.
B. The Tutorial and Other Forms of Interactive Teaching
America's only on-line law school, a for-profit subsidiary of the Kaplan Corporation, itself a subsidiary of the Washington Post has succeeded in providing far higher levels of teacher access, student evaluation and feedback than most conventional institutions do. It has separated the presentation function and faculty from the tutorial function. Class lectures are recorded by faculty members from other institutions (and subsequently revised) for on-demand, on-line playback. Concord's "real-time" faculty does no lecturing but conducts on-line discussions, evaluates student written work, and grades the final exams. Each student's progress through the assigned material and performances is closely monitored so that lapses in engagement or comprehension are caught and responded to in timely fashion. In short, by dividing the traditional law school course in civil procedure or criminal law into a pre-packaged, reusable commodity and an interactive service component Concord is able to keep costs (and tuition) down even while it offers very attractive faculty-student ratios and a highly interactive experience.
Our Legal Information Institute courses will attempt similar results using a slightly different set of on-line tools. Their principal components will include:
The principal trade-off in this model is that of face-to-face oral exchange for written exchange. All the points, ideas, and tentative solutions a student will offer for teacher, fellow-student, or programmatic response will be presented in written form. For some students this will, no doubt, be a traumatic shift; for others, a totally welcome one. Given the ever greater use of e-mail and other forms of electronically mediated written communication in law and other spheres most law students recognize that, however, unfamiliar this is an important skill to develop.
C. Other Functions of Regular Meetings
1. Pacing with Student Accountability and Evaluation
Classroom meetings serve an important pacing function. In theory, at least, we don't simply present our students with a set of inputs and the task of achieving mastery by the end of the term. Tomorrow's meeting and next Tuesday's, whether lecture or discussion, will generally be taught with an assumption of student preparation. Students who haven't done the assigned work "on time" know that they will receive less value from the meeting and may perhaps be uncovered as unprepared before teacher and peers. Importantly, discussion sessions also allow self-appraisal. Whether or not the student expresses herself, she can gauge her level of understanding against the contributions of others and the teacher's comments.
2. A Framework for Student-Student Exchange
Since the class meeting metronome marks a parallel progression across the same ground for all students in a course, it maximizes the possibilities for student-student exchange. Residential institutions, particularly, emphasize the value of the learning that occurs informally in the hallway, dining facility or student residence as students discuss the next day's assignment or the most recent class with one another.
3. The Challenge of Achieving Similar Results without the Classroom
To begin, many students have been so conditioned by prior educational experience that they tightly associate education with the physical and other cues of the classroom. Particularly students who are dividing their time and attention between courses conducted with conventional classroom meetings and others that use these digital alternatives are likely for some time to view "virtual classrooms" as less real than physical ones. Given that conditioning and the natural tendency toward procrastination, on-line education needs to be constructed with serious attention to the pacing, accountability and self-appraisal functions noted above. The courses we shall offer next year will have regular required student participation points. In theory teacher time gained by recording the presentation or lecture element of a course can be re-deployed in this direction.
To the extent that numbers of students at a single location are working on the same course during the same block of time, informal student-student exchange can occur in the same way it does with classroom-based courses. Indeed, it may, in some ways, be encouraged. The experience with programmed computer tutorials suggests that they may produce better educational outcomes when students work them as a team, discussing choices as they are presented. Student-student discussion is out of place while a lecture is in progress, but with lectures that can be paused and rerun at will that need not be the case.
My experience working with groups of students at scattered other law school sites persuaded me that it was possible to generate very useful local discussions within the framework of a formal full class exchange that channeled only a fraction of them. In the courses, I shall offer this coming year, having regular local discussion meetings will be a recommendation, though not a requirement.
III. Using These Tools to Redefine Our Institutions
Inescapably, technology shapes the categories we use to discuss and think about human activity. The set of activities we think of as "education" and those we refer to as "research or information gathering" will likely blur together as they converge on the same set of digital technologies.
The successful U.S. providers of continuing professional education in law have increasingly become publishers of print materials, audio and video tapes to the point that most provide more "education" in this form than through live programs. These materials share the characteristic that they allow the learner to choose the time, place, and topic. Long term, I think it probable that the our Institute's web publications and LII-developed distance learning courses will interweave. We envision integrating introductory "learning" modules with the LII's "Law about ..." pages (administrative law, contracts, and so on) as well as its deeper libraries. At the topmost level these learning modules would involve no teacher-student interaction or evaluation. They would also, however, provide a pathway to richer levels of content and interactivity -- distance learning options, if you will -- available to those with a need or the desire to go further.
These tools for classroom-free teaching are capable of penetrating geographical, political, and institutional boundaries that previously seemed utterly defining. In theory they might enable law faculties to expand their reach, to play a role in the education of additional categories of students, both students of the same age and educational background and aims as those they currently enroll -- being no longer limited to individuals who can travel to the university to sit in its classrooms and use its library -- and other groups as well. More generally, they might lead some of our institutions to a radical change in how we conceive of their student bodies, faculties, and research possibilities. We might, for example, come to view academics, lawyers, and judges situated anywhere on the globe as prospective presenters, commentators, and mentors for students. For their part, students might come to view individual courses or programs offered by widely scattered institutions as accessible components of their legal education, without any thought of having to move from place to place. Significantly, all of this could occur across national boundaries.
In one sense the pressures for dramatic change in the means of delivering legal education seem large, for the potential gains are enormous. The overhead generated by the physical environment of higher education -- the library facilities, classrooms, and student spaces of all kinds along with the staff involved in their operation -- constitute a major part of the explicit cost of university-based legal education. The time and place requirements that limit the formal education process to students who are resident during a term and to groups of students able to assemble in scheduled meetings (not conflicting with other course sessions) impose additional implicit costs on those students who are able to enroll. They also effectively exclude others from the educational process. Classroom centered programs produce a heavy scheduling burden, forcing unhappy trade-offs on students, faculty members, and curriculum planners. Creating the course and exam schedules for even a modest sized U.S. law school is a task of near industrial complexity. And the segmented educational program we are accustomed to, chunked in courses of standard length and pedagogy, is in no small part a consequence of rather than the reason why we march students through our degree programs in measured time, to a near military beat.
Digital distribution of course materials and networked communication linking faculty with students (and students with each other) has the potential for liberating legal education from many of these costs and rigidities. Students can be offered instruction where they are. Their faculty or instructional team can itself be spatially distributed and can include lawyers and judges in addition to "resident" full-time academics. This should permit students (and legal employers) to mix professional employment and education in ways not presently possible.
With the capacity to educate at a distance, law schools could and therefore law schools might expand their reach in other directions, offering programs aimed at a huge variety of new audiences. With it much easier to teach non-resident students, who have not committed to a multi-year program, law faculties might play a greater role in continuing professional education on the one hand and the education of students not headed toward professional roles in law on the other.
1. P. Martin, Reducing the Cost and Improving the Quality
of Course Materials Through Technology (1998)
< http://www.law.cornell.edu/papers/clea98.htm
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