Teaching for Tomorrow: Utilizing Technology to Implement the Reforms of Maccrate, Carnegie, and Best Practices

• Publication year: 2021

92 Nebraska L. Rev. 46. Teaching for Tomorrow: Utilizing Technology to Implement the Reforms of MacCrate, Carnegie, and Best Practices

Teaching for Tomorrow: Utilizing Technology to Implement the Reforms of MacCrate, Carnegie, and Best Practices

Stephen M. Johnson(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 47

II. Background ........................................... 48
A. The Langdellian Model and Calls for Reform ....... 48
1. The MacCrate Report .......................... 50
2. The Carnegie Report ........................... 51
3. Best Practices .................................. 52
B. The Central Role of Technology in the Reform of Law School Pedagogy .............................. 53
1. Gen-Xers, Millennials, and Technology ......... 53
2. Economics and Accessibility .................... 58
3. Technology as a Practice Skill for Lawyers ..... 60

III. Calls for Reform ...................................... 61
A. Reforming Assessment ............................ 61
1. The Technological Tools for Reform ............ 63
B. Reforming Classroom Instructional Methods andSimulations ....................................... 67
1. New Instructional Methods and Technology . . . . 68
2. Simulations and Technology ................... 73
a. Value of Simulations ....................... 73
b. Computerized Simulations ................. 74
C. Reforming Instructional Materials-The NextGeneration of Course Books ....................... 77

IV. Teaching Students to Use Technology ................. 82

V. Conclusion ............................................ 84

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I. INTRODUCTION

More than a half century ago, famed educator John Dewey predicted that, "[I]f we teach today's students as we taught yesterday's, we rob them of tomorrow."(fn1) While Dewey was not referring to legal education, the legal education community has echoed his call for reform for decades.(fn2) Critics routinely assert that the "Socratic Method" and Christopher Columbus Langdell's "Case Method"(fn3) that are still employed by many law professors(fn4) fail to provide students with a variety of important skills that are necessary to practice law.(fn5) Further, critics argue that those traditional methods fail to adequately focus students on the important issues of professionalism in the practice of law.(fn6) Major studies by the American Bar Association (ABA), the Carnegie Foundation for the Advancement of Teaching, and the Clinical Legal Education Association concluded law schools need to reform legal education to provide more focus on training students in professionalism and practical skills.(fn7) The studies do not call for the elimination of the Case Method or Socratic Method, but they do stress the need for integration of new methods of instruction and assessment, especially after the first year of law school.(fn8) Curricular change tends to move glacially in academia, and fundamental changes in pedagogy arrive even more slowly, if at all. Nevertheless, many law schools have been reviewing their curricula and discussing and implementing at least some modest reforms in response to the most recent reports.(fn9)

Due to the nature of the students who are currently enrolled in or planning to attend law school, the economic realities of the modern practice of law, and the legal job market, technology needs to play a central role in the reform of legal education.(fn10) The reformed law school classroom will likely look significantly different than the traditional 1L Langdellian classroom. Simulations and other instructional methods that focus on developing skills will become more prevalent

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and technology will significantly enhance them.(fn11) Technology itself is an important skill that lawyers must master to effectively practice law.(fn12) Therefore, there will likely be additional focus in law schools on training students in the technology that is central to practice.(fn13) Educators will likely incorporate more formative assessment into courses, and technology will facilitate that.(fn14) Furthermore, professors will need new course books and materials to facilitate the new instructional models, and technology will be key to the development of successful and effective materials to replace the traditional materials.(fn15)

Part II of this article examines the development of the Langdellian method of instruction and the criticisms to the approach that have culminated in the calls for reform by the ABA, Carnegie Foundation, and Clinical Legal Education Association. Part II continues by focusing on the reasons why technology should play a central role in implementing the reforms petitioned by those organizations. The rest of the article provides examples of how technology can facilitate some of those reforms. Part III focuses on reforming assessment, the instructional models, and the instructional materials used in the classroom. Finally, Part IV explores the value of technological capabilities as skills in practice and the manner in which law schools might train students in those skills.

II. BACKGROUND

A. The Langdellian Model and Calls for Reform

At the end of the nineteenth century, Christopher Columbus Lang-dell, Dean of Harvard Law School, revolutionized law school pedagogy by introducing the Case Method of instruction.(fn16) Instead of simply learning and memorizing a series of rules from books of laws, students learning through the Case Method read selected common law appellate cases from a new generation of casebooks and dissected the cases to discover the general principles of law derived from them.(fn17) Law professors trained students to identify the important facts and distill

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the holdings in the cases by asking students a series of direct questions in a dialogue commonly referred to as the Socratic Method.(fn18) The Case Method, together with the Socratic Method, quickly became the predominant method of law school instruction across the coun-try.(fn19) Although new forms of pedagogy have significantly supplemented or replaced the Case Method in many law school classes, it still remains the predominant approach in first-year classes.(fn20) Supporters of the Case Method argue that it teaches students to think logically, critically, and carefully-or in other words, to "think like a lawyer."(fn21)

Despite its broad adoption within a relatively brief time period, the Case Method has been strongly criticized on a variety of grounds for almost as long as it has been utilized. Challenges to the pedagogy in the 1920s and 1930s came from the Legal Realists, who viewed law as an art, rather than a science.(fn22) Where Dean Langdell's approach encouraged students to view the common law rules as a value-free system of objective, black-letter rules that were scientifically discovered, the Legal Realists argued that legal principles are malleable and can be interpreted and applied to effect positive social change.(fn23) By urging academics to focus on the interrelationship between social policies and laws and on the impact the interpretation of laws can have on society, the Legal Realists began to move law faculty toward a greater focus on teaching the issues of professionalism and on the impact of lawyers' decisions in practice.(fn24)

Recently, critics have routinely complained that the Langdellian Method does not provide sufficient instruction in skills other than critical thinking, and therefore, it does not adequately prepare students for the practice of law.(fn25) While few reformers argue for a wholesale return to the system of apprenticeships that were the predominant precursor to a legal career in the early years of our nation, critics point out that apprenticeships provide valuable instruction in practical skills and help students understand that the major focus in a legal

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practice will be on clients, rather than case law.(fn26) Critics also complain that the Langdellian Method disproportionately alienates women and minorities and that a focus on any pedagogical method as the nearly exclusive method of instruction is unwise in light of students' diversity of learning styles.(fn27)

Although the Case Method remains a cornerstone of law school pedagogy, especially in first-year classes, several influential reports over the past twenty years have accelerated the adoption of alternative approaches to the Case Method.

1. The MacCrate Report

In 1992, the American Bar Association Task Force on Law Schools and the Profession issued Legal Education and Professional Development, a report that criticized law schools for failing to prepare students for the practice of law.(fn28) The Task Force on Law Schools, of which Robert MacCrate was the chair, spent three years preparing the report by surveying practicing lawyers and law professors.(fn29) The report is now commonly referred to as the MacCrate Report . It recommends reform of curricula and teaching methods to "systematically integrate the study of skills and values with the study of substantive law and theory."(fn30) It identifies ten fundamental lawyering skills, four fundamental values, and sixty-four recommendations for reform.(fn31) While the report stresses the importance of integrating instruction in these skills and values throughout the curriculum, it also stresses the importance of clinical legal education as a means of teaching skills and values.(fn32) Commentators suggest that the...