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Can This Tech Company Save Legal Education?

Feb. 3, 2016, 3:59 PM

Editor’s Note: The author of this post is a law professor whose research focuses on decision-making in the context of emerging legal technology.

By Brian Sheppard, Associate Professor at Seton Hall University School of Law

Everyone knows that the number of people attending law school is down, but fewer people know that, in response, law school faculties are shrinking too. Many law schools have dialed down their efforts to hire new faculty and dialed up their efforts to convince existing law professors to retire. While this “right-sizing” effort might be economically sensible, it has given rise to a new problem: law schools are finding it harder to offer all of the classes that they used to.

No matter how small law schools get, the American Bar Association’s (ABA) accreditation standards require them to offer “substantial instruction” in diverse areas such as substantive law, legal reasoning, writing, and the history and values of the profession. Adding to the pressure, many law students arrive at school with dreams of entering particular areas and expect that the law school will provide suitable preparation for those fields. Courses in international human rights, health care compliance, and admiralty might not appeal to everyone, but they are vital to those who plan to enter those fields.

Two conditions need to be satisfied in order for a law school class to happen: a lecturer competent to teach it and a critical mass of students enrolled in it. Some classes are sure bets. Almost all of the classes taken in the first-year of law school are mandatory, and several upper-level classes are practically required because employers or bar examiners expect students to take them. Because of the predictable demand for these classes, law schools have a ready supply of full-time law professors who are prepared to teach them.

The challenge comes from the many important courses that are highly specialized. These days, there are fewer full-time law professors ready to handle them and fewer students interested in taking them. In our right-sized era, staffing problems (trouble finding a ready -- and willing -- lecturer) and enrollment problems (trouble getting enough students in a class to make it worthwhile) will be more commonplace. A law school facing both problems with a course will likely drop it from their offerings. If this happens too often, however, that school might run afoul of the ABA standard or alienate law students and potential applicants. What can be done?

Enter iLaw, a tech company that specializes in online legal education. Their idea is simple: use technology to connect law schools to a stable of top law professors who have expertise in the courses they need. For a law school that faces both a staffing and an enrollment problem with a course, iLaw provides an expert who can fill the lecturing gap as well as the ability to pool students from various other law schools in order to make a full class.

Suppose a law school recently lost its sports law expert due to retirement, and there are no lawyers or teachers in the area who could serve as a worthy adjunct substitute. Suppose further that enrollment for the Sports Law course had been on the decline, but there are still three students who want to take it so that they can pursue their dream of becoming sports agents. With iLaw, the school can delegate its sports law teaching to an expert in the iLaw network, and in turn iLaw can create an online class of appropriate size by bringing enrolled students from other similarly situated law schools together. The law school pays iLaw for the course.

Given the trends at work in the academy, iLaw might be arriving on the scene at just the right time. Ken Randall, iLaw’s CEO, cut his teeth on online education while serving as Dean of the University of Alabama Law School. In an interview, he said that Alabama’s substantial climb in the rankings during his tenure came, in part, from an aggressive effort to create an online LLM (a masters degree in law) program. Before going online, the Alabama LLM program was $500K in the red, but after switching to internet delivery, the program generated a $1M surplus. Randall understands the revenue potential with online, and with iLaw he has set his sights on the bread-and-butter of law schools: JD courses.

Randall believes that broadband technology is mature enough to provide a high quality internet-based law school experience. Participating students log into an iLaw class in the same way that they would an online course delivered by their home law school. During a synchronous (live) class, the student will see the professor lecturing on her monitor. On the other side, the professor will see up to 6 students selected at random on her monitor, as well as an enlarged picture whenever any student chooses to chime in by speaking into her microphone. In addition, an iLaw staff member watches every minute of every synchronous class to spot any technical issues that might arise. iLaw has posted a lengthy and detailed list of best practices , many of which seek to guarantee a high degree of interactivity. For example, professors “will initiate interaction with students at least once every eight minutes” and “all students will be called on to use the microphone in a live class at least once in each course.”

If these online courses offer an equivalent pedagogical experience to in-person classes, there could be many instances in which iLaw allows everyone to win: law students get to take a course that would not have been offered otherwise; law schools can expand their course offerings; law professors get the opportunity to generate supplemental income by teaching an iLaw course; and, of course, iLaw makes money through the purchase.

The jury is still out on whether online law school courses teach as well as in-person courses do, but there is reason to believe that they can. Though they did not specifically consider law school performance, numerous studies have provided evidence that students taking online courses in higher education can score as well on tests as students taking the same courses in person. Of course, there is more to learning than test scores, and there are certainly aspects of legal education that would suffer from a purely online experience—networking with faculty, engaging in work-study arrangements, developing lasting friendships with fellow students, and getting career and personal counseling from the school, to name just a few. But no one, iLaw included, is expecting these distance-learning arrangements to supplant law schools. These are not the MOOCs (massively open online courses) that doomsayers like Clayton Christensen or Kevin Carey believe will “end” college as we know it . To the contrary, iLaw relies on law school cooperation, and its classes are far from massive.

If iLaw is going to disrupt anything it would be adjunct law teaching. When full-time faculty members are not the best teaching option, law schools have typically looked to adjunct lecturers. Because the JD distance learning market is so uncluttered, Randall sees adjuncts as his primary competition. Aside from their ability to teach in the same room as their students, adjuncts have another potential advantage over iLaw: they are often willing to work cheap. Though iLaw has a flexible pricing model, an adjunct-taught course is sometimes less expensive than the same iLaw course. Randall is not overly worried, however, because he believes his professors often bring more expertise and better teaching methods to the table. He further believes that technological advancement and economies of scale will someday give iLaw the freedom to create lower pricing options. For now, at least, seasoned experts who moonlight as law school adjuncts probably have little to fear.

More worrisome is that distance learning providers eager to enter this market are likely to be for-profit entities. Carey wrote in The Chronicle Of Higher Education that “as new modes of online higher education develop, the ecosystem of start-up capital and innovation . . . will organize around them.” iLaw is a component of the InfiLaw system. InfiLaw has received a fair share of negative press in connection with its ownership of three for-profit law schools. Commentators have pointed out that graduates of the InfiLaw schools face an unsettling combination of low prospects for employment and bar passage but high tuition debt, with some describing their business model as a “scam.”

It would be unfair to assume that iLaw’s relationship to the InfiLaw schools means that students will experience bad outcomes through its distance learning offerings. It would also be unfair to assume that any for-profit ventures in legal education will perform poorly. Even so, it would be folly to assume that structural profit motives have no bearing on law student interests at all.

A company that is beholden to investors, many of whom lack a prevailing interest in educational outcomes, is vulnerable to volatile shifts in capital and influence. The recent collapse of for-profit institutions Corinthian Colleges and Anthem Education, for example, revealed that lenders can exercise great power in fundamental institutional decisions. Were a great investor sell-off to occur in the middle of a semester, students enrolled in that company’s online courses might be victimized. Thereafter, they are likely to direct blame at their own law school rather than at the distance-learning provider.

In light of this risk, law schools would be wise to limit the degree of leverage that businesses have over their educational offerings. Some schools might feel more pressure to cater to business interests than others. When it comes to distance education like that offered by iLaw, however, the ABA’s accreditation standards cap the number of credits that any law student may receive at 15 (or about 1/6 of the credits required to graduate). The cap is a useful safeguard, potentially striking a balance between giving students welcome new options and keeping in check any temptation for law schools to strip in-person teaching from full-time faculty as a cost-savings measure. iLaw may be more expensive than an adjunct, but it is likely less expensive than a full-time professor.

For his part, Randall agrees that a balance between distance and in-person education is critical, though he would like to see the cap increase as online programs prove their quality, “You want to make sure [law school teaching] is top quality, but you want an inclusive and economical education for students. Online can help.”

It could help, particularly if its progress is watched closely and regulated with student interests in mind.