Legal Ed's Futures: No. 44 (Dan Hunter)

How to Disrupt (Part 1)

Everyone needs a hobby, and thus I often daydream by thinking about how I’d disrupt myself.

By which I mean that, although I think that my law school is pretty forward-looking, as I keep reminding myself the way that we teach law and the way that law schools exist within the university is just an historical accident. The trick then is to puzzle out why we’re still doing things the old-fashioned and expensive way, and to ask what small change could have a snowballing effect on the bigger stuff, disrupting all of it. There are so many inter-related aspects of legal education that it’s almost impossible to pick the features that we could change to make a huge difference. But here are my two contenders:

(1) The hour-long class.

(2) The exam.

These two elements of education lead to a range of interesting artefacts. First off, they create the need for the law school and the entire accreditation matrix that Dan R has so neatly described. We assume that someone has to warrant that some feckless student—let’s call him “Dan Hunter”—has done enough study (and even turned up to enough classes) that he can be said to know something about Civil Procedure. To warrant this we need a Civ Pro professor who is qualified to give that attestation on the basis of the final exam (or other similar assessment mechanism). That professor needs, of course, to operate within a law school that can be trusted to provide that attestation properly, and eventually to award Hunter a JD. Which means that we need to establish standards for that sort of high quality law school—which standards will generally demand high quality (and expensive) physical plant and libraries, and the need for various administrators and deans and sub-deans and so on to coordinate and report on meeting the standards. This means that we also need an Accreditation Industrial Complex to coordinate all this, with the highpoint being the expense of paying well-qualified ex-deans and other similar worthies to fly to Pittsburgh to do site visits to ensure that Mike M is adequately teaching his class.

Most of the law school structure I just described comes from the baseline assumption that we have to have an exam. [1] But the hour-long class is equally implicated, I think, in the expense of law school operations. This isn’t so much because it assumes a well-paid professor is needed to teach class (and also write fascinating articles)—although that’s part of it, natch—but rather because it’s the procrustean bed that we’ve strapped ourselves to. It’s really hard to innovate if we have to provide a certain number of credit/contact hours of instruction. The hour becomes the prototype and every other type of learning is a deformation from that, correspondingly to be cut up or stretched, reassembled to fit into that awkward shape. If you start with the prototype of a physical instructor teaching for an hour, even the most interesting alternatives tend to be modeled on those lines. As a result, “innovative” legal education looks a lot like a slightly higher-tech version of Langdell’s impoverished vision. And it means that you can’t really deliver learning more cheaply than we already do. A significant number of Australian law schools offer online law degrees leading to legal practice, and a small number of US schools like Concord offer online degrees that can lead to practice in California (but not elsewhere in the States, of course). Australian online degrees usually cost about the same as their physical counterparts, and online US schools cost about the same as in-state tuition at the law schools of public universities. Why aren’t they much cheaper? Well, these degrees work with a regular semester, and the teaching still cleaves to the same model as we see in the physical environment. A professor will give a lecture—albeit maybe via podcast or multicast streamed video—once or twice a week. The professor or her TAs will typically undertake some sort of tutorial or seminars, and they will usually give out assessment tasks in the standard way. Although it’s possible to cut costs slightly with this model, especially by avoiding the costs of research and/or tenure, the school is still hiring faculty members to teach in a more-or-less standard way. At the end of the day, no matter how many tweaks you make to this model, it’s not going to deliver much cheaper instruction.

I think therefore that we can say pretty clearly that the exam and the hour-long class focus our attention on the inputs (the teaching) when we should be focusing on the outputs (the learning). And they also make us think that our product is the law degree, when it should be the lawyer who emerges at the end. As a result, these two features mean that almost any innovation that occurs within a law school is going to be pretty lame.

Luckily, there exists a simple, well-established, and well-validated pedagogical alternative that doesn’t suffer from this problem: Mastery-Based Learning (MBL).

MBL (or Competency-Based Learning) is, as everyone knows, the approach championed by Benjamin Bloom (Learning For Mastery) and Fred Keller (A Personalized System of Instruction) in the 1960s which divides student learning into modules of instruction, and focuses on student mastery of the material one module at a time. Students only progress onto the next module once they’ve mastered the material, not because the class has “moved on.” Although the approach fell out of favor in the traditional school classroom in the 1980s and 1990s, we see echoes of it in the Montessori and Steiner approaches to schooling, and to a lesser extent in the more recent development of MOOCs.

There are two things about MBL that interest me: (1) It’s virtually impossible to implement in the current law school environment; and (2) It allows for a lot more innovation in student learning.

As to the first point, this is intriguing because it explains why it isn’t common in law schools, even though you’d think it would be. Of course, it may be unused in law schools for a range of other reasons, including that it is possible that it may not work in legal education at all. But I suspect not.

On the second point, decoupling student learning from time, and away from the classroom and exams, gives us a lot more scope for imaginative ways of having students learn. We could use Peerceptiv, or SWORD, or crowdsourcing, or AI, or better MOOCs. Maybe one or more of these will provide a better alternative to lectures or the Socratic dialog. If some of these approaches work, then I’m 100% certain that we can drop the cost of student learning, since we would decouple the learning from the presence of the faculty members, which amounts to the vast majority of the costs of all law school. I’m actually convinced actually that we could drop the cost pretty close to zero through a commitment to MBL and the application of innovative techniques to student learning, but only if the student were prepared to take a long time to generate mastery of the legal material. Alternatively, students could pay law schools an amount to speed their progression through to admission to the bar, and law schools (or independent professors) could compete on bar passage rates and career prospects as they do now.

Perhaps the most interesting thing about MBL is that there is a bastardized version of it within the bar exam. But for the reasons that Joan Howath trenchantly observes, no version of the bar exam actually tests mastery; they all just test what is easy to assess, like rote learning and basic fact extraction/law application. For us to move to an actual MBL environment accreditors would have to change their approach radically and actually spend some money on assessing whether those taking the bar actually were capable of practising law. It’s certainly possible to test for this, but it’s expensive. Of course, they could pay for this using all the money that students would save on going to law school—and on all the money that would be freed up from law school closures…

Like I said at the beginning, I often daydream about how to disrupt myself. Although, I have to say that the vision outlined here isn’t so much a daydream, as a night horror. I can usually put myself back to sleep, however, by reminding myself that I can always rely on the conservatism of the profession and the regulators to slow things down so that I can outrun the lion…

---Notes---

[1] By “exam” I just mean any form of assessment that leads to a formal attestation that the feckless student, Dan Hunter, understands Civ Pro or Con Law or whatever. This can take many forms, and you’re all familiar with them.  

Dan Hunter (Swinburne, Australia)