Beyond San Jose State: Legal Ed Innovation Should be Handled with Care  By Riaz Tejani

Educational “innovation” should be approached with care. In today’s legal ed crisis, this is especially true. High-tech innovation is seductive to law teaching because it seems to have arguably worked in legal practice, business, communication, and security and law enforcement.

Curricular innovation is appealing because it most clearly marks a break between law school past and law school future. But as innovation begins to flow in greater supply (Paul Lippe “D-Day for Law School Deans,” ABA Journal May 1, 2013) we might want to keep asking what demand this supply is actually meeting.

Based on quantitative indicators from markets in law hiring and school applications some demand is there: the “system” is broken. But what of qualitative markers? At first blush the question was about practical skills: what skills were being developed and imparted to students? And who cultivated those skills: full-time faculty or adjunct teacher/practitioners? These were fair questions, and teaching innovation may address them. But skills were not the only qualitative issue. In a recent post, Elizabeth Chambliss flagged socialization as perhaps a deeper one. As she explained, law socialization has fascinated popular culture, strongly affected the life course for generations of students, and structured law practice in ways not contemplated by the professors most responsible for it. These observations evoke dichotomies about vocational versus liberal education, and cultural capital versus utile information. In the law school context, with “survival” of many institutions as a letifmotif, innovation has been pushed without confronting these basic dualities. As a result, new technics and tactics in law classrooms and law school business offices do not address the underlying concern Chambliss has identified.

The push for innovation seems to want to make legal education more informational and less reflexive. The stakes are high and were addressed in a lively debate back in 2011. As Kevin Maillard wrote at the time, “At the risk of sounding ‘liberal artsy,’ law school should emphasize educated citizenship. It prepares people to become leaders in our society, which makes it imperative that they be rigorously trained as thinkers. They will become stewards of policies that affect our everyday lives: in our schools, our jobs and our families. All of this responsibility, in diverse fields, comes from legal education.” (Kevin Maillard, “It’s Not a Trade School”, New York Times, 6/7/2012) Maillard anticipated those who doubt the use-value of a social philosophical law study. Against them, he said, the purpose is not to track students into discrete legal vocations but to build critical thinking to enable their own selection of career paths and social causes. In the move to a more vocational law classroom, educated citizenship for future leaders would be the first casualty.

In one sense, this argument addresses socialization. If the responsibility we share as professors is simply to create a more educated civic player, then we are not responsible for individual students’ choice to enter BigLaw, or a deregulation lobby. But, alternatively, the “educated citizen” may act as a trope that defers the kind of reflection writers like Elizabeth Mertz and Annelise Riles have previously called for. Who would question the value of informed civic participation? Educated citizenship becomes a mythology—didactic in the way it forestalls questioning what law teaching and professional formation really do.

Meanwhile, alongside educated citizenship, teaching innovation becomes a second mythology: more efficient and exciting conveyance of information—legal doctrines, procedural sequences, and operational skills—further sidestep the problem of socialization and sorting. As innovators place greater emphasis upon the information itself, the teacher, the technology, and the materials simply become tools to better transmit it. This is appealing to several stakeholders. First, students enjoy the informational clarity where “hiding the ball” may have once been status quo. When professors rest upon the “critical thinking” objective, students become frustrated about being asked at times to teach themselves.

A focus on teaching innovations further benefits school administrations by backgrounding professors in the learning process and business model. If the instructor becomes merely a conduit for units of information, her personality and her idiosyncrasies factor less into the process, add less value, and warrant less autonomy. Twisting McLuhan, “the message controls the medium.” This point was recently stressed in the San Jose State Philosophy Department’s open letter to Harvard massive open online course (MOOC) instructor Michael Sandel (“The Document: ‘An Open Letter to Professor Michael Sandel From the Philosophy Department at San Jose State U.’, May 2, 2013). The letter was in response to a university administration plan to license taped lectures from the private company EdX for showing to SJSU undergraduates. The philosophy faculty asked a pointed question we should all be asking of all such innovations: “What would our students learn about justice through a purchased blended course from a private vendor?”
The SJSU affair raised another concern. With de-emphasis of live, flesh and blood scholar-teachers at the university level, what becomes of the professional educator and faculty governance? A stream of recent articles on tenure and academic recruiting do not bode well at all. According to one piece, 33,655 PhD recipients are now on food stamps and other welfare (Bonnie Kavoussi, “Number Of PhD Recipients Using Food Stamps Surged During Recession: Report,” Huffington Post, 5/7/2012). By another’s estimate, (Joshua Rothman, “The Impossible Decision,” The New Yorker, 4/23/2013), only one in four graduate students ever end up with tenure now.

These tensions—between educational business models and governance—came to a head in two other recent high-profile cases. At the University of Virginia, President Teresa Sullivan was initially ousted by the school’s Board for her apparent resistance to the commercialization of the university through programs paralleling Harvard’s and MIT’s. At NYU, university faculty registered a vote of “no confidence” against their president John Sexton for his vast expansion plan. Interestingly, the NYU School of Law faculty separately voted in favor of Sexton a month later (Connor Durkin, “The NYU School of Law Votes Confidence in John Sexton,” New York Times, 4/4/2013).
The UVA and NYU cases exemplify a confrontation over the soul of higher learning generally, with schools of law included as a particularly poignant example. Institutions must maintain viability in a climate of shrinking public support, enrollments, and budgets—this is familiar thinking. But their primary role to educate and socialize cannot be ignored (without repercussions) in order to meet market demands. The battle is as much about direction as it is about substance: who will steer the ship and what maps will they use? It once seemed too simplistic to characterize this opposition as one between scholarship and business. Less so every day.