Adapting law school learning to the 21st century: constructing improved learning environments

In this paper presented at Learning in Law Annual Conference 2008 Catherine Dunham and Steven Friedland (Elon University School of Law, USA) advocate greater use of e-learning, particularly in the classroom and via podcasts, as a way of meeting the challenges of legal education in the 21st century.

Legal education in the United States has been tradition bound for over a century. Its entrenched orthodoxy is focused on learning in the classroom, generally by the Socratic method. Teachers dispense written material and students study on their own, without much structure or assistance from their professors. Each course concludes with a final exam, with little prior feedback. The student responds by listening to the lectures, writing out notes in long hand and studying in the library.

These traditional methods offer too narrow a platform to serve lawyers well in the changing world of the 21st century, and there is a growing disparity between legal education and law as it is practicised. The 21st century student is changing too – s/he is proficient with a variety of technologies, from text messaging to iPod downloads to blogging during class.

The growing gulf between legal education and practice has prompted calls for change (Stuckey 2007; Sullivan 2007). The question is how to change legal education for the better – how to promote learning as well as preparing students for practice. One response suggests adapting how and where learning takes place as well as what is learned. Advances in technology provide opportunities for law schools to meet the changing demands of the 21st century, redesigning learning environments to provide an effective and efficient mechanism for revising entrenched practices.

Why change legal education?

Traditionally legal education has focused on legal analysis, often described as ‘thinking like a lawyer’. This cognitive objective left little room for the practical application of law or the role of professionalism, which were often relegated to the final year of legal education in the form of clinics and simulation classes, if at all. This restrictive educational path is increasingly recognised as unduly narrow and ineffective.

The lack of integrated theory and practice and the dearth of professional training have created a significant disjunctive between law school and lawyering, fostering a growing number of unsatisfied constituencies – from the law students within the process to the practicing attorneys who hire the students and then have to train them to the judges before whom the attorneys appear.

The majority of law faculty teaching in American law schools today received law degrees in the 20th century and share a relatively common law school experience. This commonality is perpetuated through the faculty recruiting process, which favours candidates from top tier law schools who share common academic credentials, such as law review and judicial clerkship experience (Redding 2003). In sum, law faculty exemplify the best and brightest of the 20th century law students, who read, scripted notes by hand, then sought class time as a means to develop and affirm critical analysis skills. This was the ideal model for learning set in motion at American legal education’s inception, and students who excel under this methodology are still regarded as the true intellects.

The 21st century law student is expected to adjust his/her learning techniques to these rigid expectations of success in law. However, s/he learns in a world of electronic data – accustomed to electronic data collections and constant access to materials via the Internet. This student rarely writes in long hand, often reads from the computer screen and almost never uses textual materials in the course of research. This student creates an individual learning environment in his/her computer, not tied to a physical study space such as the library carrel, but portable, moveable and often remotely accessible. When studying, the modern student segments his/her computer screen to view several different content items simultaneously. Rather than pondering a question for later study this student is accustomed to the immediate gratification of Wikipedia, Westlaw, Lexis and other sites, making information on endless topics available through simple searches.

The 21st century has brought a new kind of student to the law school. This modern student possesses technical expertise that exceeds most law faculty’s reach and evolves from another world of learning, significantly different from the educational world of their faculty. The generational gap resulting from changes in technology and expanded access to information constitutes what may possibly be the most significant gap between faculty and students in the entire tradition of the modern American law school.

(New learning environments can be created by using available and accessible technology or by refocusing the use of technology from an administrative aid for faculty to a tool for teaching. This new technology connects better to the 21st century law student and their modes of learning, including their expectations about where learning can occur. Technology is a tool to develop strong learning environments within and outside the classroom. These new learning environments provide an opportunity for both enhanced substantive learning and better use of new methods of learning.)

The Carnegie report (Sullivan 2007) suggests several structural modifications to bridge the gap, including the integration of theory and practice and making the teaching of the role of professionalism much more pervasive. This paper suggests a structural modification related to learning environments, the places and circumstances in which students learn. While the 20th century student would learn in class and in the library, the 21st century student can learn at a huge distance from school and through different media.

Reconstructing learning environments for the 21st century

A learning environment is the context in which students learn. It can influence both the quantity and quality of learning, further the specific aims of a particular pedagogy (such as role playing and simulation), or simply better the retention levels of students through repetition or neuropsychological assistance. If law students are to learn theory, practice and professionalism as suggested by the Carnegie report, the contexts of their learning should reflect and maximise these goals.

Analysing the perspectives of the modern law student allows faculty to adapt learning environments to the processing of a new generation. The goal is not to pander educational goals to modern gadgetry and gimmickry. Rather, updating the portrait of the typical law student allows institutions and faculty to refine the role of teaching and learning in the modern law school and create learning environments both within and without the physical building, equipping students for continued learning and professional practice in the 21st century.

The computer creates a new learning environment for the modern student, an environment which is not only individual but which extends to the classroom when students bring computers into class, particularly when those classrooms have wireless access to the Internet. With the advent of other technologies such as blogging and podcasting the student has access to multiple portable learning environments.

Reconstructing the classroom learning environment

Computer use during class

Faculty discussions on student laptop use in class have reached a decibel level sufficient to generate a special place on the agenda of the 2008 Association of American Law Schools annual meeting, where one of the foci was whether there “may be potential through electronic media for law faculty to have more influence on the law than we now have by disseminating our expertise and scholarship primarily through articles, books or public testimony”. Many faculty have opted to ban laptop computers from their classrooms, reasoning that computer use creates a distraction for students. However, this position assumes the modern student learns or should learn in the traditional way – another approach is to view the classroom as a new, wired learning environment that offers more, not less, to faculty and student.

Dunham’s description (2007) of the wired classroom is apt to most faculty experience at American law schools with technically modernised facilities:

In one class, a 15 student seminar, the student sitting next to me spent the better part of the entire semester engaged in various sport websites, checking scores and sometimes actually placing bets. Since there is no stigma on this type of surfing during class, my fellow student made no attempt to hide these activities from me or from anyone. In the same small class, two students sitting next to each other engaged in an instant messaging conversation with each other throughout the class, resulting at times in outbursts of audible laughter, sighs, and deep breaths of disgust…[a]lthough some were more discreet, a simple walk around the table showed 15 screens of content unrelated to the course.

If we know that the student yields or splits his or her screen to share non-course and course content, perhaps we should endeavour to fill all the windows. When teaching the substance of a case, we can engage students in their world by calling on them to access related cases on Westlaw and Lexis, review a history or pop culture reference on Wikipedia, or seek out some detail related to the case or the notes on the Internet. (For example, when struggling to make Pennoyer v Neff relevant, students can search the history of the parties and the class can join in a lively discussion of Neff as the disbarred lawyer and bigamist to other discussions of quasi in rem jurisdiction.):

Also, with simple projection technology and classroom Internet access, faculty can demonstrate the relationship between content by projecting their own working outline onto a split screen that also includes the case itself and other content related to the course, such as an analytical map.

Multi-tasking and learning

Student use of a wired laptop in the classroom promotes multi-tasking, usually perceived as an enemy of learning. However, recent brain research has demonstrated that students are not necessarily learning less when performing muliple tasks, although it can affect their ability to apply what is learned to a later task.

A neurolimaging study conducted by the Poldrack Labs at the University of California demonstrated that the presence of a demanding secondary task during learning modulates the degree to which an individual solves a problem. Subjects were taught to perform a weather predicting task, and then asked to perform the task while recording the frequency of tones heard through headphones by pressing a button with their index finger, simulating a common multi-tasking scenario (texting). Performance of this secondary task impaired the subjects’ acquisition of knowledge in the primary task. “[E]ven if distraction does not decrease the overall level of learning, it can result in the acquisition of knowledge that can be applied less flexibly in new situations” (Foerde 2006).

Although the Poldrack study suggests the picture of the proficient multi-tasker may be a fiction, it also supports the thesis that using manipulations that enhance declarative learning, such as decreasing outside stimuli and enhancing study time, will enhance performance. By directing the student’s multi-tasking world in the classroom to content areas that relate to the course faculty are arguably decreasing, not enhancing, outside stimuli. Therefore, the risks of learning being undermined by split screen multi-tasking are reduced if faculty work within the wired classroom learning environment to adapt multiple levels of content to the course.

In short, faculty can use technology itself and the modern student’s comfort with technology to expand the two dimensional paper world of the classroom into a three dimensional learning environment.

Live blogging during class

Laura Appleman (Willamette University School of Law) has shared her experiences with student live blogging. With her permission a first year student experimented with live blogging in class, creating a blog which facilitated discourse about the class while it was going on. Students could comment on the professor and the class, raise questions and seek clarification from each other on the blog – in essence the online equivalent of a student discussion during class.

How does this new micro learning environment affect the classroom? Will allowing live blogging in class engage students in the class, assuming their conversation relates to the class, or will it offer an additional distraction to students whose full attention should be focused on the class? In any event, when evaluating the proper response to a student’s request to live blog, faculty should consider the perspective of the modern student to determine the impact of live content-based conversation on the classroom learning environment.

Reconstructing learning environments outside the classroom

The environment outside the classroom where students study and learn has changed as well. A student’s individual learning environment can be more important than the classroom learning environment because of the amount of learning that happens individually.

The modern student learns within a portable individual learning environment. Student learning is no longer a function of place – rather it is a function of access. Whereas the 20th century law student competed for a carrel in the library or staked out a physical space at home or school as the location of study and thought, the 21st century law student carries this place with him in the form of a laptop computer with Internet access. Although s/he may prefer a certain physical location for study, s/he can and does study and learn everywhere the computer goes.

In the past faculty had limited opportunities to influence the students’ individual learning environments, and students relied heavily on outside sources, including commercial outlines and study materials. This reliance permits the student to substitute the analytical and critical judgment of an unknown academic for the guidance of their professor. In an ideal teaching situation faculty would be able to construct effective learning environments inside and outside the classroom.

Technology offers at least two ways for faculty to imprint methods of study and learning onto students’ individual learning environments – virtual learning environments and podcasting.

Virtual learning environments

Virtual learning environments (VLEs) have become a fixture in higher education – the issue is no longer how they should be used, but rather whether the technology is being used not only to deliver substance but as a connection to the learning environment outside the classroom.

VLEs such as Blackboard and TWEN (The West Education Network) have migrated to legal education from undergraduate education, where a less paper driven approach to learning is more commonplace than in law. Since the student migrates to law school from the undergraduate environment s/he is often accustomed to accessing and using a course website. Law faculty can take advantage of this by designing Web-based courses reflecting the preferred organisation of the class.

The content areas of most VLEs allow for the posting of Word documents, PDF and Excel files and PowerPoint presentations – if course content is posted electronically in a manner demonstrating strong analytical organisation of a topic the student is provided with a bank of course materials organised in a manner demonstrating the course’s educational goals. For example, folders can be set up to organise content on a topic, such as subject matter jurisdiction. The subject matter jurisdiction folder can contain all the materials that would fit under that heading in an outline, even if related topics are not covered chronologically in the course. If the professor chooses to discuss supplemental jurisdiction at the end of the course in connection with joinder, s/he could elect to include the supplemental jurisdiction materials in a folder with content on subject matter jurisdiction to demonstrate the link between jurisdictional topics.

The VLE can be accessed during class as a vehicle to present materials. The professor can pre-load links and materials, directing students to preferred study sources. Most VLEs also allow for the sharing of materials among course members by providing discussion boards and e-mail groups. By directing students to the VLE for materials and communication related to the class, the faculty member is designing a new learning environment for students to access while working individually.

If questions and answers are posted on the course discussion board students will access that board for information, benefiting from other students’ questions. Students can also be directed through internal links – the professor can direct a student to another place within the course, perhaps a posted document or presentation, in response to a question. Although this communication can happen individually between the professor and student, if the professor directs communication through the course discussion board all students benefit. With consistent use the VLE course can become the portable learning environment for the class, available to students any time they study.

The real utility of VLEs is to redistribute the focus of the classroom learning environment. Classes can be restructured from containing all the substantive information to perhaps containing only a substantial amount, with the rest accessed from the VLE. Also, the course website can be used as a tool to reaffirm points made in class through the posting of review problems and other materials, thus sustaining the substantive content of the class as the student moves from the classroom learning environment to the individual learning environment.

Podcasting: the portable learning environment

Podcasting adds mobility to the student’s external learning environment, speaking directly to the attributes of the modern law student. Two teaching uses can be determined – audio and video recording of lectures and audio recording of supplemental material.

The most common use, the recording of lectures, has been found to be less useful (Deal 2006). Students shun video lecture podcasting for several reasons (Brittain 2006). First, they prefer an audio-only format they can access while on the move. Also, they correctly note that if the original lecture is not beneficial then the recording provides nothing extra. All technology conveniences aside, if the classroom environment does not promote learning, then the podcast of a lecture will fail to enable students to create a better individual learning environment. Another commonly noted shortcoming of lecture podcasts is the inability to hear questions or discussions (Lane 2006) – thus lecture podcasting may be of very little use in a law class that regularly employs the Socratic method of group discussion.

One faculty fear of podcasting lectures is that access to recordings will reduce class attendance. Brittain (2006) found that only a small percentage (7.5%) of students use podcasts as a substitute for class attendance – the majority use it at home, rather than in a mobile environment or with a portable device. Hence lecture podcasting is not adding anything to the individual learning environment other than a repeat of the actual class.

The real potential of podcasting is achieved by developing podcasts of supplementary materials designed specifically for the class (Deal 2006). Using podcasts as supplemental materials has a much better track record of positively influencing student learning outcomes and performance (Kutz 2007, Barret 2006). plemental podcasts are often more thoughtfully approached, designed with clear educational goals in mind and created specifically to take advantage of the podcast format. They can be used to restructure classroom time by interpreting one or two important topics and offering questions for analysis (Barbazon 2006), allowing students to supplement their own learning environment based on the learning outcomes set by the instructor. Brittain (2006) found that supplemental material podcasts are more commonly accessed on an i-Pod or other portable medium, supporting the use of supplemental material podcasts as tools to enhance the individual’s learning environment.

Supplemental material podcasts can also be used to develop listening as a skill. In a study involving students at an American medical school, instructors used audio podcasts to supplement other instruction on the detection of heart murmurs in patients. Recordings of classical examples of heart murmurs were interspersed with educational materials made available to students in MP3 format. The study found that medical students who listened to approximately 500 repetitions of each type of murmur fared almost three times better in tests than students who had only traditional instruction. In legal education supplemental podcasts could be used to aid students in developing key legal skills, such as counselling, listening and communicating, basic tenets of traditional skills instruction.

“The true value of podcasting is its potential not necessarily to educate better but to educate further.” Use of a podcast as a supplemental learning material offers faculty the opportunity to connect students to material through another venue. Also, audio podcasting meets the needs of different learning styles. For example, an audio podcast can aid a primarily aural learner, thus providing that student a unique means to create his or her own learning environment.

If faculty focus on an educational goal then look to technology as a means to achieve the goal, the technology becomes a tool for learning rather than a modern gimmick. The decision to use a podcast or VLE is no different than deciding whether to describe a concept orally or write a chart on the board. At its essence, the goal is education not technology education. If we allow the technology generation gap to inhibit good instruction, we are turning a blind eye to new media that connect law students better to each other and the profession – and to us.

References

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• Barbazon T (2006) Socrates in earpods?: the Ipodification of education Fast Capitalism 2(1)
• Barret M et al (2006) The power of repetition in mastering cardiac auscultation American Journal of Medicine 119:73-75
• Brittain S et al (2006) Podcasting lectures EDUCAUSE Quarterly 29(3) (research based on a pilot study conducted at the University of Michigan School of Dentistry)
• Deal A (2006) Podcasting: a teaching with technology white paper (EDUCAUSE Connect)
• Dunham C (2007) ‘Stretching towards the future: a view of laptop computers in the classroom from both sides of the screen’ The Law Teacher Spring
• Foerde K, Knowlton B & Poldrack R (2006) Modulation of competing memory systems by distraction (PDF file) Proceedings of the National Academy of Sciences 103(31):11778-11783
• Kutz B, Fenwick J & Ellsworth C (2007) Using podcasts and tablet PCs in computer science (Proceedings of the 45th ACM Annual Southeast Regional Conference)
• Lane C (2006) UW podcasting: evaluation of year one (PDF file; report by the Office of Learning Technologies, University of Washington)
• Malan D (2007) Podcasting computer science ACM SIGCSE Bulletin 39(1)
• Redding R (2003) ‘Where did you go to law school? Gatekeeping for the professionals and its implications for legal education’ Journal of Legal Education 53:594
• Stuckey R & others (2007) Best practices for legal education (PDF file) New York: Clinical Legal Education Association
• Sullivan W, Colby A, Wegner J, Bond L & Schulman L (2007) Educating lawyers: preparation for the profession of law (Carnegie report) San Franciso: Jossey-Bass

Last Modified: 9 July 2010