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Test Author, The Wages of Testing, 82 Unyale L.J. 920 (1973).

Just over twenty years ago I gave a talk to the AALS called The Virtual Law School? Or, How the Internet Will De-skill the Professoriate, and Turn Your Law School Into a Conference Center. I came to the subject because I had been working on Internet law, learning about virtual worlds and e-commerce, and about the power of one-to-many communications. It seemed to me that a lot of what I had learned applied to education in general and to legal education in particular.

It didn’t happen. Or at least, it has not happened yet. In this essay I want to revisit my predictions from twenty years ago in order to investigate which were wrong and which were just premature. The massive convulsion now being forced on law teaching due to the social distancing required to prevent COVID-19 transmission presents an occasion in which we are all forced to rethink how we deliver law teaching. After discussing why my predictions failed to manifest before 2020, I will argue that unless this pandemic is brought under control quickly, the market for legal education may force some radical changes on us—whether we like it or not, and that in the main my earlier predictions were not wrong, just premature.

Back in 2000, I started my talk with hard truths which are no longer controversial but perhaps were not entirely fit for polite company when the law teaching industry was still very much in a go-go growth mentality: First, that law teaching is a business, therefore legal education has to worry about the bottom line. Second, that at least a private law school—which is where I found and still find myself—is just one of many ‘product lines’ for a private university. Third, that at least from the University’s point of view the law school is a “profit center.” And, fourth, that, as businesses go, law schools were a business with great structural problems.

Even in 2000 it was obvious that costs were out of control. Law school tuition was going up every year. Students were beginning to experience sticker shock and were graduating with ever higher levels of debt. Indeed, for the first time law schools were beginning to experience some customer resistance on price and this was leading to discounting competition between law schools. Meanwhile, student attitudes towards educational institutions were changing, leading to the rise of what became called the ‘consumer mentality’ in place of the ‘student mentality.’ And students from Harvard onward began to complain about the perceived hostility and unfriendliness of many law schools.

Law schools were also feeling pressure on the other end, from legal employers. The publication of the MacCrate report in 1992 inaugurated a new era of employer and clinician focus on skills training as opposed to traditional doctrinal courses. Whatever its merits, one thing was clear about most skills training – it was more expensive, because it required a considerably higher instructor-to-student ratio than ordinary teaching. So law schools were being squeezed by complaints about their costs, but also by expenses.

Distance learning seemed to be an answer. By the year 2000 it was increasingly widely used in higher education, notably the open University in the UK and London University, which offered law degrees by distance learning. In the United States, many undergraduate education programs offered some distance learning courses, and the Western Governors University was marketing itself as “Virtual U.” New York University’s school of continuing education unveiled what it called a “virtual college.” And Concord University School of Law, created by Kaplan, Inc., was in fact offering degrees only online, although with far from a full selection of courses, and without ABA accreditation.

Few law schools had gone anywhere near so far, but many were availing themselves of online resources to enhance their programs, whether posting online syllabi, using email and chat rooms as an extension of the classroom, or linking extension campuses to the main campuses for remote participation. And of course I and others were teaching classes about the Internet.

Some law school pioneers were taking things further such as by offering the same course to several schools at once. Peter Martin taught the same course at four law schools simultaneously. But early attempts to share curricular offerings ran into a number of problems. For example, law schools use different calendars, different grading systems, and different curving systems. Thus, attempts to grade students together created equity issues.

Despite these teething problems it seemed to me that the movement towards online teaching would only accelerate. One needed, I thought, to make only two assumptions: first that the technology would continue to improve quickly (which indeed the hardware did, if not so much the software), and second that the ABA would not be able to stand in the way—at least not for long.

There were a number of reasons to believe that the ABA would not be able to hold back the tide of distance learning. Already, ABA accreditation rules, long designed to hold the line against the dreaded correspondence-course-based law school, were beginning to change. More grandly, in a period where it seemed the Internet was going to change everything, and in which ABA accreditation rules had an uncanny resemblance to an anti-trust violation, it seemed possible to envision a radically different learning model. Perhaps law teaching could be rethought internet-style? Instead of having the ABA approve only degree-granting institutions which took responsibility for the bulk of a student’s teachings, and for setting degree requirements, we could imagine the growth of law schools that did little or no teaching of their own, but instead had students mix and match courses delivered by more traditionally accredited schools. The degree-granting body would set how many credits students would need to get a J.D., set distribution requirements, and perhaps set some rules about which courses, or which school’s courses, would count

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Cite as: Michael Froomkin, Testing of Version 5.6, JOTWELL (January 6, 2021) (reviewing Test Author, The Wages of Testing, 82 Unyale L.J. 920 (1973)), https://zetasec.jotwell.com/testing-of-version-5-6/.