THE RISKS OF TECHNOLOGY IN THE LAW CLASSROOM: WHY THE NEXT GREAT DEVELOPMENT IN LEGAL EDUCATION MIGHT BE GOING LOW-TECH.

Author:Harris, Nikos
 
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INTRODUCTION

What comes to mind when one conjures up a picture of a modern law school classroom? The first image is likely that of uninterrupted rows of laptops behind which students are typing more information than they could record by hand and seamlessly using the Web to access the cases and statutes being discussed. An accompanying image is that of a professor on the other side of the silver wall, with his or her own laptop projecting notes onto large screens viewable from every seat in the wired amphitheater. The professor has also made lecture summaries electronically available to students to allow them to focus their attention on listening to the lecture, discussing policy, and solving hypothetical problems.

And what images come to mind when we enter a dated law school classroom? Students taking notes with pen and paper, struggling to write down material from a lecture delivered without accompanying text slides or online course notes. We might attribute these circumstances to a professor who has stubbornly refused to keep up with the times and has forced his or her students to be a part of this antiquated learning experience. (1)

However, there is also a developing body of literature which speaks to the significant benefits of a dated classroom, creating a strong case that it fosters an optimal learning environment. This research, particularly that which has emerged over the past five years, not only provides evidence of significant pedagogical benefits flowing from traditional lecturing and note-taking techniques, but also sets out that these advantages are critically important to the content and objectives of a legal education.

The focus of this article is on the risks posed by the use of laptops and certain types of instructor-provided notes in the law classroom. It does not seek to speak to the risks of using technology generally in legal education, and further does not attempt to settle the debate about whether these two technologies are on the whole more beneficial or detrimental to learning. Indeed, there is literature supporting the benefits of the technology used in the prototypical "modern" classroom, and many law professors teach very successfully with such tools. (2) These studies provide evidence that students can effectively take notes on laptops and that use of course slides can assist in comprehension. Electronic notes can be searched for specific content and are easily integrated into related notes from different lectures. Hand writers usually cannot take as fulsome notes as a typist, and handwritten notes can be lost and are not easily backed up. A full record of the content of a lecture captured by a typist, or available through a professor's course notes, may also assist students in later learning material which they were unable to fully process during the lecture. (3) It can also be argued that developing digital skills, including how to effectively use laptops, is essential for future legal practice. (4)

The modest contribution of this article is to review recent social-science literature documenting the risks posed by laptops and text-heavy course slides to the core aspects of a legal education. These articles and studies collectively provide a reasonable basis for making an informed choice to limit the use of these technologies in law classrooms. This article then discusses some practical approaches for attempting to bring about a low-tech revolution in the law classroom.

THE OBJECTIVES OF LEGAL EDUCATION

The goals and methods of legal education have been, and continue to be, the subject of much analysis and debate. Studies and commentators have called for law schools to cultivate numerous competencies, including practical legal skills, various areas of substantive legal knowledge, certain character traits, and the development of a professional identity. (5) However, it is broadly recognized that an essential component of a legal education is teaching students to engage in critical analysis and develop creative problem-solving skills. These skills require students to consider issues from different philosophical and academic perspectives and to have an adeptness with policy analysis. (6) Anthony Kronman describes how legal education seeks to develop the "moral imagination", (7) a process that results in students possessing "a broad familiarity with diverse and irreconcilable human goods coupled with an indefatigable willingness to enter the fray, hear the arguments, render judgment, and articulate the reasons that support it, even when all hope of moral certainty is gone." (8) In the well-known introduction to The Canon of American Legal Thought, David Kennedy and William Fisher describe how thinking like a lawyer requires being "comfortable with multiple, overlapping modes of analysis" and requires a "voracious interdisciplinary appetite of legal analysis, importing all manner of arguments from neighbouring disciplines, often deploying them in unfamiliar ways". (9)

As Professor Harry Arthurs persuasively argues, the importance of law schools fostering critical analysis and engaging with the varied areas of knowledge that students will need to become "artisans of legal change" (10) is increasing, rather than decreasing, with the rapid changes occurring in both the legal profession and society as a whole. Professor Arthurs concludes that:

The future of law schools, then, is to embrace their vocation as knowledge communities, to embed their JD and other educational programs within their larger mandate of aggregating, critiquing, and disseminating knowledge, and to pay attention to the challenge of rapid and profound changes in society and in law. (11) Law professors have the ambitious task of helping students to develop the ability to think critically and to infuse policy into their analyses within the relatively short time period spent in law school classrooms. It is this very ability to engage in deeper analytical reasoning which is put most at risk by the combination of student use of laptops and professor use of extensive electronic notes.

THE LAPTOP

One side of a low-tech revolution for law classrooms is replacing the use of laptops with handwritten notes. There is mounting evidence indicating that this change can increase student comprehension, support analytical reasoning, facilitate class discussion, and create a much more connected learning environment by avoiding the many distractions that stem from the combination of widespread laptop use and the availability of Wi-Fi in law school classrooms.

RAMPANT NONCOURSE USE

Internet and smartphone addiction in our society is not only being increasingly documented, (12) but is also on display in almost every facet of our day-to-day lives: a person crossing the street with a screen glued to his or her face; a cafe full of people staring into screens; a dinner guest busily tapping away at the table; an evening wasted by hours of meaningless Web surfing. A recent study found that people "tapped, swiped and clicked" their phones an average of 2,617 times a day, with the top 10% of the group doing so over 5000 times. (13) Teenagers are now spending an average of nine hours a day using phones and computers for various nonschool purposes. (14) Is there any reason to think that students in law school classrooms are immune to this reality? Does the significant expense of a legal education and the prospect of entering one of the most important and complex professions in our society result in students giving social media or online shopping a pass for an hour or two during a law school lecture? Unfortunately, the evidence suggests no. The anecdotal evidence gathered by individual professors (15) is now being documented with alarming results.

The first of many risks of laptop use in the law classroom is that they are routinely, and sometimes almost entirely, used for noncourse activities. Laptops not only provide instant access to the Internet, but also bombard the user with instant notifications of new messages or comments on social media to further tempt a resisting note taker. (16) While most professors assume that some portion of their students are engaged in nonclass activities, two studies provide clear evidence of the extent of the problem. Critically, neither of these studies relied on students to self-report noncourse use of laptops. (17) Instead, both collected direct evidence of how students used their computers in the classroom.

In the first study, Professor Jeff Sovern placed observers at the back of six law classrooms to document the laptop activities of those students choosing to use laptops. (18) The study found that, in upper-year classes, a stunning 58% of students were engaged in noncourse activities on their laptops for at least half of each class, on average. (19) Another 29% were using their laptops for noncourse purposes for more than five minutes but less than half the class. In sum, 87% of upper-year students were distracted by their laptops for more than five minutes each class. The statistics were only slightly less concerning for first-year classes: in the two first-year classes observed, just under a third and a quarter of students were using their laptops for noncourse purposes for between five minutes and half of the class. (20)

Professor Sovern also found that noncourse use of laptops increased in three key circumstances: when student questions were asked and answered, during policy discussions, and when the class was working through "problems and hypotheticals". (21) It appears that students who were resisting distraction found these circumstances to be opportune moments to join the rest of the students already engaged in social media, shopping, or messaging. Given that the development of policy analysis and problem-solving skills are centrally important to a legal education, this distraction has serious implications for the law classroom.

In the second study, Professor Susan Ravizza and her...

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