Article For June 2014

Michele R. Pistone and John J. Hoeffner, No Path But One: Law School Survival in an Age of Disruptive Technology, 59 Wayne Law Review 193 (2014).

Articles on technology and change in legal education are certainly not new. Yet with the stir over MOOCs (Massive Open Online Courses) making the previous debates on classroom laptops and the Internet seem more rudimentary even within a mere decade's time, the discussion on technology and law schools seem to be moving deeper and probing at the hearts of institutions rather than appearing as how-to pieces for dealing with students who access both Facebook and Westlaw at the same time they are staring at the lectern–or are supposed to be. The recent works of Professors William Henderson, David I.C. Thomson, and Richard Susskind come to mind as premonitions for the deeper institutional changes that technology is bringing and will continue to bring to a life in the law–whether that is in law teaching or practice.

In No Path But One: Law School Survival in an Age of Disruptive Technology, Villanova Law Professor Michele R. Pistone and attorney John J. Hoeffner, have written a timely article on-par with the aforementioned cadre. Professor Pistone also runs the website, legaledweb.com, and recently organized Igniting Law Teaching, a TEDx-styled conference at American University Washington College of Law that was devoted to bringing new innovations to law teaching. Together with Hoeffner, Pistone argues that "a once-in-a-century change" is happening now with technology in higher education. Accordingly, if traditional law schools do not respond effectively (and soon), then the risk of losing the foothold on legal education will be great and the risk of diluting the quality of available ways of educating lawyers will be even greater. However, Pistone and Hoeffner's idea of embracing technology is not the typical go-with-the-flow advice; instead their recommendation is more ambitious: law schools must improve the quality of legal education in a sustainable way that will also outpace cheaper and more flexible online competition. Whether one agrees with their assessment or not, it is an article that accurately contextualizes the reality that technology is exposing the critical flaws of traditional legal education more rapidly and openly than we have imagined.

Making an analogy between the powerhouse web-based bookseller Amazon.com and its physical competitors Barnes and Noble and the now-defunct Borders Books, Pistone and Hoeffner observe that "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." To change, law schools will need to own up to the weaknesses in legal education that have been espoused by the Langdellian/Socratic case method of teaching and "move the regulated 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." So in essence the big-picture view of their recommendation would be for law schools to migrate online "whatever educational content can be migrated online" as they concurrently expand their experiential learning programs.

To Pistone and Hoeffner, the goal of sustaining the traditional place-based law school is an important one to the quality of legal education because another model that might utilize working attorneys over full-time legal educators might offer a lower-quality experience. In this way, their message is similar to Georgetown Law Professor Robin West's pronouncement in her recent book on teaching law that the legal academy needs a healthy distance from the profession in order to effectively critique the law and the profession. However, Pistone and Hoeffner's nuances are examining the distance from an educational perspective, arguing that Langdell and university-based law schools emerged in the 19th century as a response to the failures of the apprenticeship model to adequately prepare attorneys and a need to create a uniform method of instruction. In this way, they see the move to cheaper online education that replaces place-based law schools as a potential step backwards to the same problems from the apprenticeship era.

But something's got to change, and according to Pistone and Hoeffner, it is the Langdellian educational model that must be altered-that model that once brought uniformity but at the risk of basing it within a faulty formalist logic about the science and autonomy of the common law tradition. It is not a secret that the Langdellian/Socratic case method had its critics as early as the initial decades of the 1900s, including famously the Realists who succeeded Langdell and the other Formalists. Pistone and Hoeffner prodigiously track the criticisms of the 1928 Alfred Reed report and its later successors in order to decisively make their suggestions on what and how to change. Their general approach is to act in a manner that can identify technological advances with urgency, that invites constant experimentation in the classroom for active learning, and that recognizes vulnerability of law schools honestly. Only with that general mindset can law schools choose the right path, which they argue is utterly discernible.

And that path is this: law schools must ride the speed of the technological evolution by becoming more adept at utilizing the technologies of the day in ways that capture the advances for new educational opportunities that technology provides; they must offer enhanced experiences of the physical building that law schools occupy that online providers cannot copy; they must reward and refine student use of new literacies rather than ignoring and lamenting such use; and they must always take maximum advantage of insights from the emerging field of the learning sciences.

Not all current scholarship on changing legal education incorporates discussions of technology. But thankfully Pistone and Hoeffner recognize technology's impact in the educational marketplace and how law schools need to physically and existentially evolve with technology to bring quality education to current and future law students. Insightfully written and thoroughly researched, Pistone and Hoeffner's article places a new spin on reinventing the wheel of legal education.
[Read fulltext at SSRN (938 KB PDF)]

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