January 22, 2015
In “Canada isn’t ready for an online law school” (Canadian Legal Newswire, Dec 15, 2014), Philip Bryden gives two reasons that Canada isn’t moving toward online or distance legal education, despite its “democratizing possibilities”. First, the oversupply of qualified applicants for the traditional in-person experience means that law schools don’t have to change to fill the available seats. Second, there is concern that if an investment in physical facilities is not required, “for profit” providers may move into legal education. If profit is the motive, quality may suffer.
Further, Bryden notes, the Federation of Law Societies of Canada currently requires that Canadian law schools offer “…primarily in-person instruction and learning and/or instruction and learning that involves direct interaction between instructors and students.”
Although Bryden doesn’t say so directly, all of this would suggest there’s no pressing reason in 2015 to get serious about digital legal education. I say we need to get serious. As educators working in public institutions, we have a duty to use the tools at our disposal to continuously improve legal education and make it more accessible if we can. If we don’t, others will.
First, let’s put to rest the idea that the regulators are preventing change in this area. The FLSC interprets the “primarily” in “primarily in-person instruction” as 2/3 of a law degree. Further, instruction “that involves direct interaction between instructors and students” – such as the direct-to-desktop live videoconferencing employed in Osgoode’s Professional LLM programs – is OK too. So using those kinds of tools, even more than 1/3 of the degree could be offered other than “in-person”. As it stands, however, I don’t think there’s a Canadian JD program that is even close to the 1/3 mark.
So why do we need to get serious now?
For one, Bryden is dead-on about the “democratizing possibilities”. Demand for legal education may be holding steady (for now) but accessibility is a growing concern. These days, you have to be either wealthy or willing to take on a pile of debt in an uncertain job market. Using digital tools to teach and learn parts of the curriculum can open the door to those for whom family obligations, location, and other tough breaks such as working class parents make attending school full time in person for three years following an undergraduate degree impossible.
Another reason is that digital tools open new possibilities for enriching and improving teaching and learning. Although there is a large body of research to support the superiority of active over passive learning, a great deal of legal education is passive. Although face-to-face education is the benchmark for quality, it’s possible to go through a traditional face-to-face law school education, say nothing in class for three years, and still perform well academically. When a course is designed so that reading is followed by on-line discussion forums, students are required to engage and it’s easier for thoughtful but quiet students to do so by giving them time to craft their comments. There’s also opportunity for vicarious learning through participation in discussion forums.
All of this can be designed in an asynchronous format, so that students and online mediators (who stimulate discussion and direct students back to the readings when discussion strays) can participate at different times and from different time zones. When this kind of teaching and learning is coupled with face-to-face modules (in a “hybrid” model), the mix is a powerful one. A colleague (a Canadian law school alumna) who completed a hybrid graduate degree at Oxford based on a hybrid model, went in a skeptic and came out a convert. The degree and quality of the student engagement online “just blew [her] mind”.
Courses designed to be delivered asynchronously open up new possibilities for participation by students and instructors from all over the world. We have a taste of this in our synchronous desktop video-conferencing in the LLM, where students join classes from across Canada and often outside of Canada. How wonderful to have perspectives from a Crown in Iqaluit, another Crown in Fredericton and a defence lawyer in Kingston, all in the same class! As wonderful as it is, though, it’s time-bound and limited. My colleague’s Oxford tutor in the asynchronous modules was in New Zealand! Not all courses benefit from students and instructors who are spread across the country and the globe – but think of the possibilities!
Some law professors in Canada have been experimenting with “flipped classrooms”, where students watch video-taped lectures and do readings before class; class time is devoted to discussion, problem-based exercises and other activities designed for active learning, rather than lectures. We recently piloted a flipped classroom model for a Legal Research and Writing course, designed by Shelley Kierstead and Sharon Wang. Although the pilot involved a small sample of students (27), all but one rated the video lectures as a 4 or 5 on a 5 point scale of usefulness (how many casebooks would get a similar rating?). Our digital platform also provided analytics, so we were able to see at what points throughout the course the students engaged with the materials. The course was designed so that students would do readings and watch the videos before class, and every student did. They also referred back to the videos frequently, with predictable peaks in activity before assignments were due. (Of course, one key benefit of the recorded lectures is that they can keep them for reference throughout their studies, and watch them as many times as they need to.) Our plan is to interview the students and use all of the data to improve the design of the course.
We’re learning, as others have, that well-designed online or hybrid learning experiences aren’t created quickly or on a dime. The technology doesn’t have to be expensive – but the upfront investment in instructional design and creating digital assets, whether an internal or outsourced cost, is not insignificant. If you want to do more than videotape instructors, and employ gamification and other interactive elements found in some of the most engaging online instruction, there is also a significant investment in design and programming. It’s just a myth that high quality online or hybrid programs are quick and easy to design – yet another reason to get cracking.
Finally, a big reason there is no rush to change is the lack of good models, particularly at the JD level. But thoughtful models with significant investment in design are coming. One notable recent development is this month’s launch of the first ABA-accredited hybrid law program at William Mitchell College of Law in Minnesota, an alternative to its existing three year face-to-face degree. Expect more “whole program” innovation using digital tools, soon.
Perhaps these changes elsewhere will not affect us. But it’s just not plausible that the digital revolution that has upended every aspect of our lives won’t have a dramatic impact on legal education as we know it. In the words of Professor Paul Maharg, Director of the Center for Legal Education and the Profession at Australian National University College of Law, and a leading educationalist in legal education,
Face-to-face education won’t ever disappear; but it will warp, change in the digital air; and institutions who don’t think seriously about their place in the new ecology will find that their potential students, under more financial pressure and given more choice in our times than they ever had before, will migrate to institutions who do think seriously about digital.
Let’s not sit back because we still have lots of applications and think the way we do things now seems just fine. Let’s start planning, piloting and improving digital legal education. We have tools. We have no regulatory obstacles to doing more than we do now. We’re seeing ways that digital can promote active learning. So what’s stopping us?
Assistant Dean and Executive Director, OsgoodePD