Closing the Book

FLW

In this final installment of my occasional series on the past, present, and future of the law school casebook [first post here] [second post here] [third post here] [fourth post here], I’ll return to some crumbs that I left on the trail earlier, then take some swings at connecting them into some bigger payoffs. 

A 360-degree tour of the casebook, as one of the most durable tools in higher education (really!), yields some possibly interesting ideas about the future of legal education generally – and maybe even higher education.

First, let me briefly sum up the state of play, as I’ve laid it out up to this point.  The law school casebook published by for-profit publishers and priced at $250 or so per new copy remains the unquestioned gold standard of law school pedagogy.  Although a community of Open Access and Open Educational Resource producers supplies quality alternatives that substantially reduce law student costs, that community remains small.  Law professors in overwhelming numbers are wedded to the proprietary casebook model, for cultural and economic reasons.  Why?  Because its functional simplicity makes academic life easier.  Specifically, time spent imagining how to teach a law school course using alternative materials, and time spent actually implementing such a course, is time spent away from the things that drive legal academics’ economies of prestige:  research and scholarship, directed to journals and scholarly books. 

The overwhelming majority of OA/OER resources in law are modeled on the print casebook, meaning that the benefits of OER – while significant – accumulate entirely on the cost-of-attendance side of the ledger.  They don’t necessarily have any bigger impacts.

That explanation is consistent, I believe, with the fact that faculty and students who are more invested in other parts of the legal education enterprise than in scholarly research – law school clinics and other genres of experiential education; legal research and writing curricula – are far less likely than so-called “doctrinal” faculty to be wedded to the casebook. The casebook is a foundation of the current legal education status quo not only in the sense that it burdens law students with unnecessary financial costs.  It’s also a foundation of the current legal education status quo in the sense that it reinforces existing hierarchies that divide doctrinal faculty from clinical faculty and legal writing faculty.  The casebook allows the former to economize on teaching costs and invest more heavily in research; the latter are expected to invest substantially in pedagogy, via both methods and materials.  Research and scholarship in those communities may be possible, and it may be desired and desirable, but by design, it is made difficult.

That is not a causal claim.  I only suggest that the casebook helps to fix the current system in place.  And that’s a backward-looking view.  From the start of the series, my real interest has been the future.  What might a different world look like?

I’ve got a number of ideas here, all of them more or less speculative and all of them more or less descriptive (this thing might happen or could happen) rather than prescriptive (this thing should happen).

Premises

The premise is that casebooks are anchored in law schools and, for that matter, what textbooks are anchored in universities, because they are efficient teaching tools.  “Efficient” in a time-saving and (traditionally) cost-saving sense, not in an “effective pedagogy” sense.  The canonical or stereotypical university professor is expected to and wants to pursue a career of research and scholarship; teaching is the price of admission to that practice.  Whether that’s right or fair isn’t the point; the point is that this is how US universities have been designed since their invention in the late 1800s.  To be an effective and productive scholar, time invested in teaching has to be reduced to a manageable level, particularly when teachers are faced with classrooms filled with large numbers of students.  Comprehensive textbooks suit that need perfectly.

[Observers of and participants in contemporary battles over “adjunctification” and casualization of teaching in US colleges and universities are presently experiencing the apotheosis of the “economize on teaching and prioritize research” concept.  If you’re not in the privileged position of occupying a tenure-track or tenured position, then the university wants to squeeze every last penny out of the cost of supporting you as a teacher.]

The history of US law schools illustrates. Until the early 1970s, US law schools were largely teaching-driven.  Writing and producing casebooks, teaching tools par excellence, was highly valued not only economically but culturally and politically within law schools and within the legal profession.  Beginning in the early 1970s, as research universities generally turned toward valuing research and scholarship aligned with their post-war federal sponsorship funding model, law schools steered a path toward research and scholarship that had a more nominally social scientific character.  Within law schools, casebooks lost their professional cachet; they are not quasi-social scientific scholarship.  Instead of advancing the new-ish research-based mission of the school, casebooks became vehicles by which law professors could teach large numbers of students efficiently yet still produce scholarship to meet the university’s expectations.

I’ve painted with broad strokes; as a historian, I’m an Impressionist rather than a Photorealist. Every law school has followed its own somewhat unique path. But the portrait above tells us the following critical thing about the future of law schools specifically and about universities generally.  Pragmatically speaking, and especially for readers who are not members of the legal education or higher education sectors (which is to say, practicing lawyers, legaltech entrepreneurs, disruptors of other sorts, and present and prospective students), any reform and reconstruction efforts have to keep research and scholarship top of mind, even if they do not necessarily have to occupy top priority in any actual institutional setting.  “More experiential learning,” “more legaltech training,” “more experienced lawyers as teachers,” “shorter and/or less expensive time to degree” all make a lot of sense as prescriptions when it comes to the future of the legal profession – but in the university setting, the first mandate is:  How does this advance the research and scholarship agenda of the institution?

Change that mandate, and we have a different ballgame.  But change at that level would have to come from elsewhere, not from within law. Just about all US law schools have essentially zero leverage at the university-level bargaining table, because just about all US law schools are drains on university budgets, and just about all US law schools, with their student-edited, non-peer-reviewed, and non-sponsorship attracting research profiles, add very little to their parent universities’ scholarly reputations. 

Payoffs

1/ How can we raise the stakes, the game, and the status of clinical faculty, other experiential faculty, and legal research and writing faculty? Outsiders critique US law schools for being insufficiently tied to professional practice; the faculty involved have often campaigned for improvements in their political and cultural status within legal education, meaning eligibility for tenure and inclusion in faculty governance, among other things.  Paradoxically, this is an area where the casebook form could help.  Tenure standards at almost all law schools are derivative of tenure standards at their parent universities (a handful of US law schools have no parent universities; their tenure standards are usually set with reference to what other law schools do, so universities’ research expectations usually echo there as well).  Universities’ tenure standards almost always prioritize scholarly production and quality over other criteria.  So in practical terms, the institutional status of experiential faculty and their political ambitions largely depend on their ability to produce scholarship, and their ability to produce scholarship depends on reducing the time they commit to teaching.  Standardized materials – casebooks! – would be extremely helpful in that project.

I don’t like that payoff, and I doubt that many others (especially experiential faculty) like it much, either. It’s not a serious proposal. But I include it, even lead with it, because it illustrates this point: An enormous amount of macro re-thinking of educational institutions depends on awareness of their micro-foundations. If we simply work within or re-build on top of those foundations, there are gains to be achieved, but we may also be led to some places that many people don’t want to go.

My more serious self-critique here is that I don’t buy the assumption that there is a productive future of legal education built on its co-existing three faculty silos: doctrinal, clinical, and legal writing.  Looking ahead, in the medium- to long-term, that co-existing siloed structure isn’t economically viable; it’s not useful to students, the profession or to society; and it’s not likely to generate important research and scholarship.  I won’t defend those points here.  I may come back to them in a future series. 

2/  Instead of raising the stakes of inter-silo competition inside current law schools, I’d prefer to reorganize how and where different modes of teaching happen. (This is a pragmatic point, not an ideological one, but it’s difficult to separate those two views neatly.) We might do that in different ways.

One, long on the table, is simply to divide teaching faculty from research faculty within a given law school, and/or to divide law students on a training-to-practice track from law students on a training-to-become-researchers track. Casebooks and similar tools would have their place on the research/training-to-become-researchers side of the house; one would expect to see more pegadogical innovation on the teaching faculty/training-to-practice side of the house.  A handful of US law schools have started to experiment with these sorts of approaches.

A second would be to push the use of casebooks and a lot of introductory teaching further down into the earlier stages of the educational process to take advantage of economies of scale and to capitalize on the efforts of legal practitioners who want to teach but who neither need nor want to pursue full-time teaching, or research of any sort. For US legal education, that might mean moving a lot of the introductory material into undergraduate education. Both more sophisticated experiential training – labs and other things as well as clinics – and (some) robust teaching that aligns with research practices of full-time faculty would be reserved to one or more years of post-graduate professional or researcher education.  Casebooks up front (simply to save on expense, not to privilege research), customized pegadogy in the back, so to speak. This strategy would have the virtue of offering some legal training to prospective graduates who want to work in the legal industry but who have no interest in the more advanced study needed to prepare to become licensed practitioners.  I suspect that it would substantially reduce the cost of student attendance generally.

A third would be to divorce the training-for-licensure legal educational process entirely from its current home in the university, or at least from its current home in the professional training ground of the post-graduate law school.  The casebook model persists because it underwrites the scholarly expectations of the university.  Yet licensing rules currently bind US law students university-based legal education in all but a handful of contexts (i.e., passing a bar exam is essentially mandatory in every jurisdiction; sitting for the bar exam almost always requires a JD from an accredited law school; and almost all accredited law schools are affiliated with universities).  Change licensing pathways, and institutional re-design becomes easier to imagine.  Licensing reform movements are at last starting to get underway in the US.  In Canada, the UK, and Australia, the legal profession has made more progress in either stepping away from the bar exam, and/or stepping away from a university-based legal education as a prerequisite for licensure.  An enormous amount of this post relies on the existence and priorities of research universities as intellectual and economic infrastructure for undergraduate and post-graduate education.  But much of US higher education is undertaken in institutions that still prioritize teaching over research (or say that they do) – universities further down the status hierarchy, colleges of many sorts.  More US legal education could live there, rather than in research universities.  (Some does; some US law schools are parts of universities that host only a handful of other graduate or PhD programs.)  US legal education could be provided in stand-alone “training to licensure” institutes.

Those ideas aren’t entirely new, nor are they tractable in the near term. (The fact that they’ve been around for a while in one form or another offers a hint as to their tractability.)  They all involve big institutional redesign of one sort or another.  They all come with substantial transition costs, political barriers, and equity concerns.  Under any of these models, many US JD programs, which are already quite small, might get smaller still. 

So here’s something at a smaller and less obviously disruptive scale, a way to get past casebooks and chip away at the political economics of law school faculty silos.  It’s entirely anecdotal and personal to me, and I share it primarily to illustrate the idea that there are things that individual professors can do, if they want to do something new and different (many do not) or if they have new and different thrust upon them (as some increasingly do). Other professors are inventing new identities and pathways for themselves, and I’m interested in hearing about their stories, too. 

Again, I begin with the fact that the economics of time allocated to teaching rather than research tend to support the casebook economy.  If I’m rewarded for publishing rather than teaching, I’ll cut down on time in teaching, and that means using a casebook.  Even if I use OER or OA materials, if I use materials other than OA casebooks, then I’ve simply added to my teaching time.  I can take that time away from scholarship – or from other things, such as family, or sleep, or health, or fun.

If, however, time in teaching is the same as time in research – not “time invested in quality teaching is counted toward tenure and promotion,” not “syllabi and teaching materials are scholarly products equivalent to journal articles,” but “what I do is develop intellectual  infrastructures and resources that pay off concretely and concurrently in both teaching materials and scholarly works” – then I’ve gone some ways down a path that effectively (if only conceptually) abolishes the traditional distinction in academic time commitment between “teaching” and “research.”  I’ve created a path that potentially integrates traditional legal analysis and thinking (both in teaching and in research) with modern inter-, cross-, multi-, trans-, and post-disciplinary professional expectations.  That blend can be applied in the classroom, in the field, and in the journal.  That is:  how many problems these days are simply and purely “legal” problems?

Notably, I still get publications out of the deal.

That’s highly conceptual, and as concept it may be a puzzler, so let me give the illustration from my own experience. 

A number of years ago, I gave up traditional, print casebooks.  I still teach courses in IP law that give every outward appearance (in the course catalog, and on transcripts) of being “standard” law school doctrinal courses.  [As all academics know, once the course is in the catalog, it’s a lot easier unilaterally to change its contents than to change the course title or the course description.]  And I teach from and with judicial cases, along with other primary legal materials.  Increasingly, I blend those materials with a host of “found” materials from “non-legal” sources.  Also, I don’t give comprehensive final exams; I assess my students based on short open-ended, problem-based writing assignments.  What looks “traditional” on the outside has gotten progressively more a-typical on the inside.  Everything is still a work in progress.

My own take on my teaching product and process is that I’m headed back to the future, in a very 1930s “Law and Society,” Willard Hurst sense.  I’m not inventing anything truly new.  I’m simply evolving my teaching flexibly – given my not feeling tethered to the casebook code – to suit what I perceive to be the needs and interests of the profession, of broader society, and my students.

Essentially at the same time (so: What is cause? What is effect?), my research and scholarship has taken on a quite explicitly heterogeneous cast, to the point that in writing and speaking I sometimes feel only loosely tethered to my legal training.  For a time, I felt as if I had a dual identity, one as a law professor (in the classroom), and another as a researcher (in journals and books), increasingly in partnership with colleagues, rather than solo.  I’ve come to believe that I’m part of a group of law faculty – and faculty in other fields, as we find one another over shared interests in futurism and blended work – who sense that the essentially 19th century disciplinary structure of modern education is failing us and our students.  I’ve wandered into conversations with colleagues in law and elsewhere whose primary interests lie in experiential education.  And into other conversations with colleagues whose primary interests lie in design, leadership, emotional intelligence, and collaborative work and project management.

To bring this back to my initial point about silos, here’s the thing:  The hours that I spend reading, thinking, and writing for my research turn out to be the very same hours that I spend updating and evolving my courses.  There’s a classic line that better researchers and scholars make better teachers, because they develop passion, depth, and sophistication about their fields that they can use to inspire their students.  That may be right.  But my observation differs a bit.  My observation is that my research is my teaching, and vice versa.  I’m learning that teaching isn’t a cost of my research, or vice versa.  What I pursue is one investment, multiple applications. I haven’t developed a seamless strategy for this, and I don’t even always do it well. But it’s the trajectory that I’ve been on for a while.

I’m atypical (I think) and even speculative in a lot of this thinking and its effects.  But I’m not alone. I’m a little disruptive.  I have a growing community of disruptively like-minded teachers and researchers.  I have an institutional home in a law school.  My intellectual and cultural home lies in an unformed, emerging academic and professional collective both inside and outside of law schools.

Is any of our collective imagineering likely to come to anything?  Is my experience generalizable in any way?  Or better – in any ways?  Am I right in predicting that the casebook is an emblem of what is keeping legal education – even higher education – from evolving into its future self?

I only know two things:  Frustrated as I obviously am with a lot of the legacy institutions of legal education and higher education, I’m having as much fun teaching (and researching) as I ever have, more than 20 years into this career.  And my students and graduates seem to like what I do a great deal.