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Triple Treat
March 5th, 2013 / By Deborah J. Merritt
Coursera offers a platform for high-quality university courses delivered online. The company launched its first course less than a year ago, but has already reached 2.7 million participants. The platform now includes 62 universities located across four continents. Courses span a wide range of subjects and several languages. Imagine taking a course on Early Renaissance Architecture in Italy–from a regarded “Professore” at Sapienza University of Rome. Now imagine taking that course in your own living room, in English, for free. That’s Coursera.
As an educator, I’ve been curious about Coursera–but also vaguely uneasy. What does this type of massive online course mean for the future of education? Can it reduce the cost of legal education? Or will it further diminish the demand for our product? Does the Coursera pedagogy deploy techniques that we could borrow for smaller distance-learning initiatives? What happens when you mix high-quality educators with a type of education that some of us still associate with black-and-white televisions in the corner of a third grade classroom?
Now is your chance to explore some of those questions, while pursuing two other intellectual inquiries at the same time. I just signed up for Scott E. Page’s Coursera offering on Model Thinking. The course began on Monday, so you have time to join us.
Page is the Leonid Hurwicz Collegiate Professor of Complex Systems, Political Science, and Economics at the University of Michigan. He’s a distinguished scholar in the fields of game theory, organizational behavior, and institutional design. Some of you may know his book, The Difference, which offers an intriguing account of when diversity improves decision making. Page is also, as I’ve discovered from the first few online classes, an engaging lecturer.
Participating in Page’s course is giving me some ideas about online education. I’m tracking how he integrates lectures with readings. So far, so good: each stands alone but adds to the other. (The readings, by the way, are both free and easily downloadable from the course site). I’m experiencing the impact of hypotheticals that I answer during each lecture; I think they do engage me more in the material and add to my understanding. I’m also noting, of course, that every student is answering these questions; we’re not just listening to another student respond as we might in a lower-tech law classroom. I look forward to checking out the discussion forum and taking the quizzes.
Page’s offering is designed for tens of thousands of students; it’s a massive open online course (MOOC). The techniques used in that type of course won’t translate wholesale to every type of online offering. But I’m getting a sense of the possibilities–and some ideas for any online courses I design. That’s the first benefit of taking this course, learning something about online education.
The second benefit lies in learning about a series of social science models that touch upon legal issues. If you’ve wanted to know about Schelling’s segregation model, Granovetter’s collective behavior model, and others of their ilk, this course offers an excellent overview. So far, the lectures and readings are both comprehensible and focused; you’ll learn a lot with little wasted time. Page is especially skilled at illustrating the models in commonsense ways.
That brings me to my third, over-riding reason for taking Page’s course. Legal education rests on the premise that we teach students how to think like lawyers, and that this analytic frame adds value to many professional paths. Contemporary challenges to legal education question even that premise: Do we succeed in teaching students to think? I personally have little doubt that law school teaches students to think more critically. But do we offer special value compared to other graduate (or even undergraduate) programs? What analytic models do students learn in those other fields? Are those models equally valuable to the ones we teach in law? Are they more useful in a wider array of applications? Should we be teaching more different ways to think in law school? Or acknowledging that we offer just one of many valuable paths to success as a critical thinker?
I plan to use Page’s course as a way to think about thinking–how successful thinkers approach problems, how educators teach those approaches, and how law schools stack up compared to other disciplines. I’ll post from time to time about my reflections. Meanwhile, I hope to see you in class.
Analyzing Cases and Statutes
February 16th, 2013 / By Deborah J. Merritt
Whatever else we teach in law school, most professors and lawyers agree that we need to teach students how to analyze cases and statutes. Lawyers must be able to read those key products of our legal system; analyze their meaning; synthesize their rules; apply the rules to new situations; and recognize ambiguities or open questions.
Why do students have so much trouble with these tasks, even in the third year of law school? These are difficult tasks, but they’re hardly insurmountable. Talented graduate students should be able to grasp them in less than three years. The answer, I think, is that we don’t teach these skills nearly as well as we assume. If we really wanted to teach students to analyze cases and statutes, we would adopt different methods. Here are some of my thoughts on that:
1. Modern courses in Legal Writing explicitly teach students how to analyze and synthesize legal materials, but doctrinal courses rarely do. The typical doctrinal course expects students to learn these skills simply by trying until they get it right. Without explicit instruction or individual feedback, students who get the wrong answers in class (or are mystified by their classmate’s correct answers) don’t know where they are going wrong.
2. The right answers in a doctrinal class usually require knowledge of the doctrine–not knowledge of how to deduce that doctrine from a case or statute. Students who are struggling for answers, therefore, usually turn to doctrinal study guides; they rarely seek additional help in analyzing and synthesizing legal materials.
3. Students learn what we test. Although we may say that our doctrinal courses teach students how to analyze legal materials, we rarely test those skills directly. How many doctrinal courses give students a new case or statute to analyze during the final? The Multistate Performance Test does that on the bar exam, but we rarely do it in law school. Our doctrinal courses test students on doctrine and issue spotting (within a defined doctrinal area), not on analyzing or synthesizing legal materials.
4. Thirty-five years ago, students might have had to analyze and synthesize in order to learn the doctrine and issue-spotting tested on exams. When I attended law school (1977-80), Gilbert’s outlines were sold discretely out of a single student’s locker. They weren’t very good, and there were no other study guides on the market. Today, each subject boasts a half dozen or more study guides–many of them quite good. Websites like Outline Depot allow students to exchange outlines keyed to an individual professor’s class. I’ve looked at the outlines for my Evidence class and, again, they’re pretty good. If we test students on issue spotting and doctrine, then it makes sense to study the doctrine and issues that the professor stresses in class. It’s not necessary to analyze and synthesize cases or statutes.
5. Today, when the doctrine is readily available, we tell students that they should read all of the cases and statutes for their doctrinal courses because that’s a good way to refine their lawyering skills. But that’s such an unrealistic path that students quickly tire of it. Many casebooks include just fragments of cases or statutes, so the students learn little about analysis. If cases are drawn from multiple jurisdictions, students don’t learn real synthesis; they learn to synthesize a blended rule from cases handpicked by the casebook author.
Most important, no practicing lawyer would proceed as we suggest. Close analysis of cases and statutes take significant time; a practicing lawyer would save that time for when it is necessary. For established doctrine, the lawyer would rely upon treatises, other authoritative summaries, or her own accumulated knowledge. The lawyer would read only the newest cases and statutes (those that have not yet been fully analyzed) or the ones with potential ambiguities related to her case.
Students quickly grasp that the law school way of learning doctrine, by reading a case for almost every point, is unrealistic. It’s also tedious and unnecessary, so they don’t do it. In my experience, upper-level students read assigned cases or statutes very lightly–if at all. They know that the bottom line holding will be most important for class discussion and the exam; they also know that a quick read, class notes, or a study guide will provide that information most of the time. If the case is a more complicated one that requires close reading, they’ll learn that in class when the professor embarrasses someone through socratic questioning–and the professor will eventually reveal the nuances.
In other words, I think we discourage students from flexing their analytic skills by demanding that performance when it’s not necessary. If we saved case and statutory analysis for the materials that demand close scrutiny, students would be more likely to engage in that process and learn from it.
The number of cases and statutes requiring close scrutiny varies by subject matter. Constitutional law requires close reading of more cases than Evidence does. (I’ve taught both courses, so speak from experience there.) Some code courses require almost daily analysis of code sections, but very little case analysis. We should be careful, though, in assuming that all of our subjects require daily case or statutory analysis; many of them don’t. If we want to hone analytic skills in our doctrinal classes, we could do so more realistically by requiring those skills only for the material that demands it.
6. If we are serious about honing case and statutory analysis in doctrinal courses, we should be willing to give more individual feedback–or to create online modules to do that. Listening to the professor question another student is not a very effective way to learn close analysis. Instead, we could require every student to complete online exercises related to key cases or statutes. Using fairly rudimentary software, we could ask every student to (a) highlight case language that expresses a court’s holding; (b) highlight language that expresses ambiguities or openings for future distinctions; (c) answer questions about how hypothetical problems might be resolved under a case or statute; and (d) point to the specific language supporting conclusions about those hypotheticals. In each case, the software could tell the student what she had gotten right or wrong.
In class, we could discuss more advanced points about these cases or statutes, knowing that each student had read the underlying source closely enough to answer the required questions. We could also discuss points that many students missed, since the software could aggregate those responses. And we could examine the novel insights that some students might have generated. E.g., perhaps one student saw ambiguous language that the professor missed in creating the exercise.
In sum, I think we have a long way to go if we aim to teach case/statute analysis and synthesis in our doctrinal courses. Currently, we teach primarily doctrine in those courses–and there are more efficient ways to teach doctrine than through the case method. If we really focused on teaching analysis/synthesis in some courses, we could teach those skills more efficiently as well.
AP Study of the Economy
January 27th, 2013 / By Deborah J. Merritt
As we plan for the future, law schools wonder about general economic trends. Is the economy recovering? If so, will it create more jobs for lawyers? How soon? The Associated Press recently published a three-part series with troubling answers to those questions. You can find the three articles here:
The bottom line from this series: The economy is recovering in some ways, but technology is wiping out middle-class jobs–and is starting to chip away at higher paying jobs as well. Here are some of the facts that the AP researchers cite to support these conclusions:
** 7.5 million American jobs were lost in the Great Recession, and less than half of them have been restored. The figures, however, are even starker for middle-class jobs. Half of the jobs lost during the recession (about 3.75 million) were middle-class ones. Only 70,000 middle-class jobs have been restored.
** Technology has been cutting jobs for more than three decades. The losses started in manufacturing, but have moved aggressively into office, retail, and other service occupations.
** Top companies (those in Standard & Poor’s 500 stock index) earned one-third more profit in 2012 than they did the year before the Great Recession. But by relying on technology, those companies employ a half million fewer workers today than they did in 2007.
** Start-ups are launching with one-third fewer employees than they needed in the 1990s. Technology combined with outsourcing (which is, in turn, supported by technology) allows these companies to thrive with fewer workers. Since start-ups are a major source of new jobs in our economy, this trend is particularly disturbing.
** We are on the brink of even more dramatic workplace changes prompted by technology. Google’s self-driving cars have now logged 300,000 road miles without a single accident. What happens to the middle class when driver-less cars replace truck drivers, bus drivers, and cab drivers? What ripple effects will that technology have on commuters, insurance companies, and countless of other industries? One hint: It may be much easier to resolve insurance claims from driver-less cars because all of the data will be stored.
** Although technology creates new jobs, computers have been eliminating many more jobs than they create. For one measure of this, consider these facts: Three software giants (Apple, Google, and Facebook) together employ only 138,300 people worldwide. That’s less than a quarter of the workers (600,000) that General Motors employed during the 1970s. And GM itself produces many more cars today with only a third of its former workforce.
What do these trends mean for the future of legal employment? I explore some possibilities below.
Direct Client Loss
When we talk about demand for legal services, we often focus on large corporate clients. Those are the ones who pay the highest fees and support the most lucrative jobs for law graduates. But those clients have never supported the bulk of our graduates. According to analyses done by Harvard Law School’s Program on the Legal Profession, only 15% of U.S. lawyers worked in the 250 largest law firms–serving the biggest corporate clients–in 2007. Since 2007, of course, large law firms have downsized; the percentage of attorneys practicing for BigLaw today probably is less than 15%.
Where do other lawyers go? Some work for mid-sized firms, corporations, government, or public-interest groups, but a substantial number work alone or as members of very small firms. According to the Harvard analysis, more than a third (35%) of all lawyers work in solo practice. Those attorneys, as well as many of those practicing in the smallest firms, devote much of their effort to individual clients and small businesses.
The middle class and small businesses once sustained these lawyers–more than a third of our graduates–by paying them to handle home closings, divorces, child custody disputes, criminal defense, consumer issues, wills, probate, business formation, contract issues, small claims, and workplace disputes. That work has already diminished. Middle-class clients and small businesses have balked at the high cost of legal services, turning to pro se representation and online companies like Rocket Lawyer and LegalZoom.
Further shrinkage of the middle class may decimate that group’s demand for legal services. At the same time, start-up businesses that use technology (rather than new workers) for their accounting, human resources, and other support staff, will be increasingly comfortable with online legal advice. The trends identified by the AP study bode very ill for the lawyers who serve middle-class and small-business clients.
Some of these lawyers will find work in the online companies that are seizing this sector. The genius of those companies, however, is that they are able to provide legal services with many fewer attorneys; that is why they cost less. With the middle class contracting, it is very unlikely that this client base will grow sufficiently to support even the lawyers currently serving them–much less new lawyers in the future.
Larger Economic Upheaval
Law schools and their graduates might hope that large corporate clients will take the place of middle-class and small-business clients who no longer want our services. But the experts cited by the AP study suggest that we are in the early stages of a wrenching economic shift. Our largest economic challenge isn’t housing, banks, foreign competition, or the deficit; it’s computers that replace human workers. The accelerating capacity of information technology will displace an untold number of jobs during the next decade. Consider just the dislocation that will occur from driver-less cars, a technology that may secure significant success during the next decade.
The economists interviewed by the AP researchers offered three possible scenarios for evolution of the U.S. economy in the face of continuing technological change. The most positive of these, provided by Nobel Prize winner Joseph Stiglitz, is that information technology will cause the same dramatic upheavals that the industrial revolution generated in the nineteenth and early twentieth centuries. Those dislocations could culminate in a cataclysmic collapse similar to the Great Depression. Stiglitz’s forecast is optimistic only because he sees the economy eventually returning to health, just as the U.S. and other advanced economies did after World War II. He’s clear, though, that we may remain in the current “doldrums for half a decade, for a decade, or for longer.”
Andrew McAfee, a principal research scientist at MIT’s Sloan School of Management, offers a gloomier prediction. McAfee suggests that technology will fuel the growing gap between top-paying jobs and low-skilled ones. Technology will allow a small number of workers to reap greater returns, but it will relegate an increasing number to low-paid jobs or unemployment. That’s bad for the bulk of workers, and it’s bad for the economy as well. Without a large, prosperous middle class, how will the economy keep growing?
The gloomiest prediction comes from former Treasury Secretary Lawrence Summers and software entrepreneur Martin Ford. They envision a future in which a majority of citizens cannot find productive work. Technology will produce wonderful benefits, but humans won’t be able to earn enough to consume those fruits.
Whichever scenario you prefer, the next five to ten years offer lots of economic risk. Some parts of the economy may rebound, but there is likely to be significant economic turmoil. That turmoil will keep corporate employers cautious, pushing all parts of their workforce for greater productivity at less cost. Lawyers are part of that workforce, so we’re unlikely to see any return to the boom times of corporate spending.
Legal Work
The AP series doesn’t focus on lawyers, but technology is affecting our workplaces as much as any other. A lawyer equipped with a computer, internet, electronic databases, and cell phone can work much more quickly than one with yellow pads and a row of hard bound books. For a while, lawyers were able to retain the extra profit generated by those increases in productivity. We could charge our clients more for the same minutes, because we did so much more during those minutes.
But market competition, especially the intense competition spurred by the forces outlined above, has shifted the technology bonus to the consumers of legal services. We now produce much of our legal work more quickly and efficiently–but we must offer it at the same or lower prices. With lawyers doing more in less time, we don’t need as many lawyers. The oversupply of lawyers has further pushed price competition, reinforcing the cycle.
The changes we’ve seen so far, furthermore, are just the beginning. Predictive coding is poised to replace armies of lawyers who now conduct document review. Document automation makes drafting legal instruments quicker and smarter–while requiring fewer attorneys. Richard Susskind’s latest book outlines many of the other changes that technology will bring to the legal community during the next decade.
Conclusion
General economic trends offer little refuge for lawyers or legal educators hoping for a rebound in our own job market. Middle-class clients and small businesses are likely to support fewer lawyers during the coming years. The economy as a whole faces great challenges, so corporate clients will continue to demand more value for money. And technology will do an increasing variety of legal work, displacing more lawyers.
If a computer can make a left turn against oncoming traffic, what other feats can it accomplish? You may think that it’s harder to think like a lawyer than like a driver, but consider the number of datapoints a computer must weigh to make that left-hand turn. Legal judgments depend on identifying data and recognizing patterns; computers have shown their skill at both of those tasks.
I’m not a Luddite: I love computers and all that they have done for us. I wouldn’t halt the march of technology for a minute, and I can’t wait to get one of those driver-less cars. But if we want to plan seriously for the future of law schools and the legal profession, we have to consider the trends documented in the AP study. Through the lens of history, it’s easy to see all of the changes that the industrial revolution wrought. It may be harder to see broad socio-economic forces as we live through them.
Take This Job and Count It
January 19th, 2013 / By Deborah J. Merritt
In an article in the Journal of Legal Metrics, two Law School Transparency team members outline LST’s methodology for the LST Score Reports, an online tool designed to improve decisions by prospective law students. LST uses employment outcomes, projected costs, and admissions stats to help prospective students navigate their law school options.
Kyle McEntee and Derek Tokaz, the authors of both this paper and the online tool, resist the urge to rank schools on a national scale. Instead, they sort schools by where their graduates work post-graduation, allowing applicants to consider schools by geographic profile. The reports then use reader-friendly terms, like the percentage of graduates who secured full-time legal jobs, to help prospective students make educated decisions about which schools, if any, can meet their needs.
McEntee and Tokaz designed the reports to help prospective law students, but this article has important information for legal educators as well. The U.S. News rankings won’t disappear any time soon, but I think prospective students will begin looking at LST’s Score Reports in addition to the rankings. The reports contain more nuanced information, which prospective applicants will value; they also try to direct applicants into deeper exploration of their law school options.
As McEntee and Tokaz show, employment scores correlate imperfectly with U.S. News rank. As applicants begin to consider these scores, together with more transparent employment information on the schools’ websites, some schools will benefit while others suffer. Schools that under-perform their U.S. News score in job placement may want to explore why. Prospective students certainly will.
The other lesson for educators is that the vast majority of legal hiring is local. Students tend to stay in the city, state, and general region where they earned their law degree. As employers increasingly demand internships and unpaid apprenticeships, this trend may become even more dominant. It is hard to work part-time for a firm in one city while attending class in another. It’s far from impossible these days, with internet commuting, but students who lack face-time with prospective employers will be at a disadvantage. It’s also daunting to relocate after law school without a job in hand.
Law schools may find this information discouraging; most schools cherish their “national reputation” and want to extend it. It’s important to recognize, however, that the best job opportunities for graduates may be local ones. Time that a school spends promoting its national brand may deliver less return for graduates than time spent at local bar meetings.
On the bright side, schools should understand that a “national reputation” can co-exist with primarily local placement rates. That, in fact, is the reality for a vast number of law schools today. People around the country have heard about many law schools, even when those schools place most of their graduates locally. National reputation takes many forms and can pay off in many ways–even for graduates in later years. One lesson that I take from McEntee and Tokaz’s paper, however, is that schools should focus more diligently on their local, state, and regional reputations. That’s where the majority of job opportunities for graduates will lie.
Law School Disruption
December 28th, 2012 / By Deborah J. Merritt
Campbell explores two disruptive forces undermining conventional legal education: new educational models (particularly online learning) and the expanding provision of legal services by non-lawyers. On the first, he asks: “What do universities sell for their tuition dollars in a world where world-class instruction is free?” On the second he notes: “Amazon has not succeeded in monopolizing book sales, but it took enough away so that Borders was no longer a profitable business.”
Law professors often scoff at these predictions of disruptive change, but the forces that Campbell describes are real: It is time to pay attention. Campbell offers a useful introduction to the major disruptions threatening legal education. He also offers a short description of his home institution, the innovative Peking University School of Transnational Law. Expect to hear more about a law school that graduates bilingual (English/Mandarin) lawyers ready to counsel clients on both U.S. and Chinese law.
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