02 Sep Dynamism in Legal Education: Can Law Schools Capitalise on the Learning Revolution?
The eminent jurist Harry Arthurs opens a provocative article — Law and Learning in an Era of Globalisation — with a binary. He splits legal scholars into pools of optimists and pessimists, classifying them according to their perception of the trajectory of legal education.
“The optimists amongst us assume that human hands — our hands — shape legal education, that legal education shapes the law, and that law shapes the world. The pessimists contend that the process works in reverse, that the forces of political economy ultimately have their way with law as a system of social ordering, as a cultural phenomenon and an intellectual enterprise, and as the subject or object of study in law schools.”Harry Arthurs (2009)
Arthurs argues that globalisation has transformed social relations. Technology’s compression of time and space facilitated the denationalisation of production, itself made possible by the redistribution of regulatory authority beyond the nation-state (a chicken and egg dynamic). Alongside the deification of the market is the demonisation of the state, two tendencies that induced a shift toward market-friendly legality, ironically coming at the expense of the laws adopted by previous generations to safeguard people against dislocations endemic to a market economy. He implies that the transnational will soon trump the national, if it hasn’t already.
Legal academics as legal pedagogues, Arthurs suggests, play a paradoxical role in these developments: acclimatising students to the underlying logic on one end while trying to save them from its indoctrinating tendencies on the other. Scholars, students, and legal actors at large define themselves — and the law — based upon the assumptions they bring to theatres, chambers, and courtrooms. If their understanding of law is intertwined with a globalised (neoliberal) capitalist imaginary, then the battle is already lost, at least according to the pessimists in the room, Arthurs included.
I first read this piece 10 years ago. I thought — and think — his critique of globalisation and the subjugation of law to capital is incontestable, such that I continue to assign the article in a range of courses, encouraging students to reflect on the correlative between developments in law and swings in legal education. Yet, while I agreed with Arthurs’ representation of neoliberal legality, I doubted the validity of his portrayal of learning. He conveys much about the substance of legal education, but little about the form, presuming a hierarchical and transactional model that is difficult to defend either historically or normatively.
Since the industrial revolution, we’ve traversed varying stages of a learning era, a unique period in human history denoted by the reconceptualisation of learning from elitist hobby to civilisational endeavour. The time-space compression played its part, establishing a digital landscape that accelerated the trend, yielding in the process new definitions of both knowledge and learning. While I was doubtful of Arthurs’ thesis a decade ago, I am wholly sceptical of it today for it’s clear to anyone involved in education that learning is in flux, maybe even in turmoil.* Many of the go-to institutions of the previous century are at war with themselves, simultaneously playing the part of savage, victim, and saviour in the disruption of the learning landscape.
In this essay, I wish to introduce some characteristics of the learning era to legal scholars, chiefly because I worry that the opportunity is passing us by. I begin by explaining how a learning revolution is materialising, focusing on four core transformations. Next, I evaluate some of the implications of these changes for legal education. I end by suggesting that the dynamism of the moment is a chance for legal academics and law schools to break with the command model of education that has historically guided legal pedagogy.
Many jurists, myself included, find jettisoning the command model difficult, despite its incompatibility with the modes of learning mushrooming today. We are not necessarily devoted to a hierarchical modality; rather, we are ill-equipped to conceptualise an alternative because of law’s inherent quality as a coercive force, a problematic compounded by the authoritarian character of law schools. Despite the incongruence of coercion and authoritarianism with the learning era, both factors retain a firm grip over the direction of legal pedagogy, no matter how counterproductive. I believe the learning revolution presents viable pathways for the re-imagination of legal education in ways that capitalise on the evolutionary trends. I should mention that this essay is more reflective than argumentative for I, too, am grappling with these transformations, the outcomes of which remain unknown. Perhaps the only thing we can be certain of is that academics must refresh their ideas about how we organise learning to account for the changes underway.**
From Hierarchical to Distributed Learning
In one of his final lectures, the late pedagogue Richard Elmore identifies some changes to learning occasioned by the ongoing revolution. Combined, these changes pose an existential challenge to formal institutions of education including, foremost, law schools.
First, observe the proliferation of content. To use a hackneyed example, users upload over 500 hours of video to YouTube every minute. To use a more obscure though equally compelling statistic, contributors to Opinio Juris have penned nearly 12,000 blogposts since its inception, which translates to 700 per annum or two per day. The democratisation of the production of content has obliterated our understanding of authorities, curricula, and even knowledge. Gates and gatekeepers are in retreat and, in their wake, we discover fresh sources of learning (though Arthurs might argue that they’ve simply moved the goalposts). Digital access remains a challenge for many, and it would be callous to ignore this. But even this barrier is ebbing with points of access multiplying the world over.
Second, just as we’ve democratised content production, so too have we disseminated the teaching task. Formal teachers remain both pervasive and perennial, but we are no longer the only game in town. Who amongst us doesn’t turn to Wikipedia, YouTube, Twitter, Upwork, and other platforms I am unaware of when seeking to learn about a topic? Learners are less enamoured with ‘who’ than they are with ‘what’: does this source possess or embody the expertise to support my learning? Learners wish to have their thinking stimulated, and are not wedded to the curious proposition that the lecture theatre is the ideal place for this to transpire. As a result, teaching is scattering, manifesting less as a monologic offering and more as a dialogic activity.
The third transformation appears antithetical to the first two: learning is more bespoke and personalised than what emerged during the industrial era. To be sure, the universalisation of primary, secondary, and (in some places) tertiary education is an achievement that rivals the seven wonders of the world, combined. To illustrate, consider that between 1950 and 2020 or in three generations, China raised its literacy rate from 20% to 97%, while nearly trebling the size of its population to 1.4 billion. I know not of an adjective in any language that can do justice to this feat. However, the trade-off to universal approaches to education is the flattening impetus: standardised curricula, assessments, entrance and exit exams, and admissions criteria are essential to a universalised system, whether in China, France, Egypt, or Cuba. Learners are disadvantaged by standardisation as it fails to account for their experiences, knowledge, learning styles, or aspirations, demanding that they follow and keep pace with a random group. Institutions are incapable of establishing an environment that is responsive to difference, or at least not to a meaningful degree. Most accommodations are piecemeal and designed to counter an overt disadvantage, rather than to adapt learning to individual circumstances. Today, this is changing. Because of the two layers of democratisation detailed above, individuals can craft learning programmes better suited to their identities and purposes. Moreover, instead of joining educational spaces because of common geography or enrolment, the revolution sprouts learning communities united around common learning interests.
A fourth transformation is the emergence of learning spaces, constituted as horizontal networks of people rather than vertical relationships between authorities and students. Just as the compression of time and space enabled the denationalisation of production, so too has it disentangled learning from institutions and individual teachers. Learners migrate into new spaces — physical or virtual — forming networks that are more flexible, sometimes heterarchical, and thus more compatible to the kind of creativity and innovation that hierarchical organisations are known to suffocate.
Like it or lump it, we are neck deep in a brave new era of learning, hence my repeat use of the term revolution. We are experiencing a meta-level transformation: learning is happening everywhere. Institutions still play a key part, but they’ve lost the monopoly. People can now choose where, when, what, and with whom they wish to learn. Further, they no longer need to comply with the demands of the group or the impositions of the institution, encumbrances which often sabotage their learning. They can come and go as they please, join new networks when they tire of old ones, or create fresh ones if they feel underrepresented. Institutions might not be passengers just yet, but they lost the reins to the way learning is happening in society.
I return to Arthurs. He is on point: changes to law and lawmaking precipitated by globalisation have forced legal academics to rethink the substance of what we teach. But how do we as educators account for the changes occasioned by similar forces to the way people learn? What does this learning revolution mean for the manner in which law schools practise education and facilitate the development of learners?
Law School: Where Progressive Pedagogy is Laid to Rest
For many law professors and students, the preceding will sound fantastical, maybe even heretical. Law is not just an authoritarian instrument, but the authoritarian instrument; one authority to rule them all. This premise is part and parcel of modernity and the emergence of the nation-state as the absolute sovereign, whether God is placed above, beneath, or tucked away to the left of the legislature. By extension, legal education as conceptualised is inimical to today’s innovations. We teach students that to apply, practise, and even make the law, they must learn the law, by which we mean become familiar with the legal frame and the associated logic (to think like a lawyer). Failing this, what type of aspiring lawyers will we graduate? We’ve thrown them in the deep end without teaching them to swim. I’m building a straw argument, but I am drawing upon familiar protests of colleagues and students to non-hierarchical approaches to lecturing that some academics have trialled in their classrooms (including me).
Yet, those who insist on an orthodox approach to teaching the law often presuppose answers to highly debatable questions about the nature and organisation of learning. Consider the following questions and some hypothetical answers:
What is learning?
A collective pursuit; an innate biological imperative; a social aspiration; or the transfer-acquisition of knowledge
What is the purpose of learning?
To gain access to knowledge; to participate in a community; to flourish as a person; or to socialise citizens
What is worth learning?
Whatevermatters to the community; whatever matters to the individual; the skills needed to contribute to society; or the skills needed to meet predetermined standards
How does learning happen?
When guided by experts; by navigating distinct viewpoints; by absorbing the overriding values; by expanding an individual knowledge base; or by expanding a collective knowledge base
How do people learn best?
When motivated; with competent teachers; when they choose what they learn; when well fed; or when surrounded by likeminded or opposing learners
Neither my questions nor hypothetical answers are facetious. Each question compels us to reflect on what we believe are the goals and preferred strategies to learning. There are clear points of tension between the answers, yet the ones we select will inform the design of our programmes, not to mention the expectations we have of students and they come to have of themselves.
Institutions in general and law schools in particular tend toward command or hierarchical models of learnings where: i) the acquisition of content takes priority; ii) individuals are responsible for their success, often measured against fixed criteria; iii) individuals follow instructions and respond to the demands of authorities; and iv) success is contingent on the breadth and depth of assimilation. Contrast the command model with the distributed variety spreading today where: i) the chief goal is personal growth; ii) learners choose what they value and wish to learn; iii) individuals are intrinsically driven to learn and to teach others; and iv) success is contingent on achieving the individual’s ambition.
Classifications are schematic by nature and these two models of learning are not oil and water. There is a little of both in most teachers and learners, but there are also tendencies and trajectories. And what is evident in legal education is that our hierarchical tendencies conflict with the distributed trajectory that learning is on.
Layered Learning as a Path to Utopian Law
Is there a way of reconciling legal education’s tendency toward hierarchical teaching with learning’s horizontal trajectory? My sense is that we can only answer this question in the affirmative, lest we wish to fossilise. I also believe that it’s less about the duality between optimism and pessimism, Keynesian and neoliberal legality, or positivist, critical, and Third World approaches to legal education. Rather, it’s about reflecting as individual academics and communities of scholars about how we can adapt our craft to the social and evolutionary trends manifesting around us.
For example, in the UK, the Solicitors Regulation Authority has chosen to delink qualification for the practice of law from the LLB, substituting the degree with two iterations of a Solicitors Qualification Examinations. Having always felt the tension between the academic and vocational components of legal education, their divorce feels salutary, at least from a learning perspective. Indeed, without commenting on the structural implications of this rupture, I wish to suggest that the reform of pathways to qualification — the UK is not alone — should inspire legal academics to adopt a more nuanced approach toward learning about the law.
There is no shortage of options for improvement, but consider this single example. Because of our new found autonomy, legal academics might begin to think about how we distinguish learning that destabilises (e.g. self-awareness) from learning we measure (e.g. interpretations of due process); learning that scaffolds (e.g. case analysis) from learning that liberates (e.g. utopian law); and perhaps learning that institutions insist upon (e.g. grounded in scholarly works) from learning students want (e.g. from a panoply of sources). Through a layered lens, we come to appreciate that knowledge does not fit within a chronological structure — basic to advanced — or that assimilating and reporting information is not indicative of understanding. Rather, these are normative presumptions that we make about what we think matters. I’m willing to wager that whatever answers London-based colleagues come up with, will differ from those in Beijing, Accra, and Singapore. I’m also certain that today’s answers are far removed from last year’s not to mention the ones we’ll offer in a decade. If there is anything about the learning revolution that all can agree on is its dynamism and uncertainty.
As a legal academic, I’ve often found this type of dynamic thinking challenging for my pedagogy, and far more so that the disruptions of neoliberalism. Law might not be static, but it is a slow-moving beast or, as I tell students, the reform of law and of legal education moves at pace with molasses travelling uphill in Nunavut. It is easy to succumb to law’s deadening character when practising our pedagogy. The consequence, of course, is that legal thinkers quickly find themselves out of step with the advances happening around us. I recall a biologist describing a fundamental feature of all living things: they change over time. In biochemical terms, equilibrium is death. For legal academics and law schools in particular, I suppose the question of whether we embrace change or hold the course is one of life and death. I wonder if Arthurs would consider me an optimist or a pessimist.
*I am indebted to Edx for the evolution of my thinking on learning (this is not a plug). I am an avid consumer of MOOCs, and our colleagues have collaborated with this platform to produce a vast compendium of courses on the intricacies of teaching and learning.
**I invite collaboration from colleagues far and wide. Perhaps a working group? Reach out! (email@example.com)