THE NORTH CAROLINA STATE BAR

JOURNALWINTER

2008

IN THIS ISSUE

Ethical Implications of Outsourcing page 6The Future of Your Firm page 10

An Interview with Our New President page 26

THE NORTH CAROLINA STATE BAR JOURNAL 21

Back to the Future: Creating a21st Century Legal Education atElon Law School

B Y C A T H E R I N E D U N H A M , S T E V E F R I E D L A N D , A N D G E O R G E J O H N S O N

Viewing the envi-

ronment of tradi-

tional legal educa-

tion over the past

20 years from a current perch of global transforma-

tion, the picture almost seems to belong in an ear-

lier historical era. Traditional legal education was

linear, generic and without international or even national context. Law teachers taught primarily through lectures and the Socratic

Method. Students were expected to learn by listening to professors teach, taking notes in class and studying in the library. For most of

the 20th century, this traditional model of legal education remained dominant and static. Law students relied on casebooks and lecture

for course content and, until recent years, were expected to learn, record and analyze legal thought in longhand. Prior to the true advent

of the Internet and the portable computer, law student and faculty expectations of learning and process aligned neatly with few gaps or

divergences. The law school experience of students mirrored the law school experience of faculty.

The 21st century has brought multiplechanges in both the quality and quantity oflegal education. The law schools have had tomeet changing expectations of law practicein a world transformed by the internet, aneconomy dominated by oil and emergingpowers, and international competition forlegal work. Law schools saw they could nolonger merely offer a single course in inter-national law, point students toward the barexam only upon receiving a degree, or turnout students who neither had the skills topractice law nor understood what those skillswere.

These outside pressures on schools havebeen augmented by an inside pressure,namely, a new kind of law student. The 21stcentury student is proficient at numeroustypes of technology and is comfortablemulti-tasking. This modern student possess-es technical expertise that exceeds most lawfaculty's reach, exclusively uses the computerto record information, and expects to accessthe internet with ready ease for legal researchand all types of communication and infor-mation. The 21st century law studentevolves from another world of learning, sig-nificantly different from the educationalworld of their faculty.

Some law schools have recognized theneed to change their direction given theseexternal and internal pressures, and ElonUniversity School of Law is among them. Byadapting Elon University's highly successfulundergraduate model of engaged learning tothe law school environment, the nascent lawschool aims to achieve intellectual rigorwhile developing professional lawyers whowill thrive in the 21st Century.

BackgroundThe traditional model for legal learning

was formed in the late 19th and early 20thcenturies by Christopher ColumbusLangdell through his professorship anddeanship of the Harvard Law School.1

Langdell essentially created the academic tra-dition of law school out of a system that hadformerly focused on apprenticeships andpractical training at practitioner operatedschools.2 Although many academic lawschools were developing during Langdell'stime, it was really Harvard where the modelof understanding and teaching legal prece-dent developed. Langdell's model focused onthe case method of instruction, which pur-ported to teach the study of law through

analysis of prior cases.3 The idea of takingapart a judicial decision, analyzing thecourt's reasoning for the purpose of applyingthat process to another set of facts was, at thetime, revolutionary.

In most American law schools little haschanged in the teaching of substantive lawcourses since Langdell's day. Professors stillrely on the case method of instruction andmany faculty members continue to use a ver-sion of the Socratic method of instruction,an integral part of Langdell's teachingmodel.4 In a typical substantive law course,such as evidence or torts, the student learnsby reading edited cases in a casebook, attend-ing a class taught through some combinationof lecture and Socratic dialogue, and takingan end-of-term examination. In most classes,the entire grade for the course rests on thatsingle examination.

Generally, the Socratic and case methodsare considered hallmarks of "rigor" in legallearning, in part due to the hazing type cul-ture such methods engender. In addition, thetraditional model has spawned a culture ofindependent study, largely created by the tra-ditionally low number of law faculty per lawstudent. This culture of independent learn-ing evolved in a time when law studentsthemselves were very similarly situated indi-viduals, predominantly male, white, privi-leged, and with similar educational back-grounds.

Fortunately, law school is no longer full ofsimilarly privileged and similarly educatedindividuals. At any given law school, the stu-dent population has racial diversity, genderdiversity, economic diversity, and education-al diversity. The academic backgrounds oflaw students can be and are very different.Also, legal education no longer suffers froma resource crisis, with students paying hightuitions and endowments reaching a recordlevel.5 So, the question becomes whetherlegal education should consider revising itstraditional practices to meet the needs of avery different time and a very different lawstudent population.

Why Legal Education is Readyfor Change

With America staring at continuing for-eign wars, global warming, and an econom-ic crisis of historic proportions, it is not"business as usual" for law schools. Instead,major tectonic shifts are being felt inside thewalls of even the most traditional schools.

These schools are starting to become con-scious of the fact that, to maintain competi-tiveness in the world of law practice and toimprove the efficiency of legal educationschool by school and course by course, lawschool tradition may need to be modified.

One key contributor to the need for edu-cational change is globalization. The 21stcentury phenomenon of globalizationresults from the unprecedented mobility ofgoods, services, capital, and ideas around theworld.6 The economy is increasingly inter-nationally interconnected,7 and the mod-ernization of law is inextricably tied to eco-nomic globalization.8 Traditional limita-tions on the geographic scope of law firmsare falling away,9 and the reality of localpractice is diminishing as even the localbusiness clients engage in the global econo-my. The arena is expanding, and a law stu-dent's goal must be to build a skill set opti-mal to serving as a participant in the globalmarket. It is important for law students tobe able to conduct themselves well, to knowtheir strengths and weaknesses, and to beaware of their representation in terms ofwhat they bring to the table. All must besought with global perspective and aware-ness, for the exclusion of the global contextruns the risk of making the profession of lawitself marginal or irrelevant.10 The legal pro-fession is increasingly challenged to serve asa global force providing structure andprocess for the complex world of the 21stcentury.11 Legal education should evolve toprepare lawyers to advance with the infor-mation era's intercontinental movementand operate effectively in the modern arenawhich spans the globe.

Another key contributor to the need forchange in legal education is the fact that stu-dents are not who they used to be. If legaleducation is to be effective, it must reachmodern students, not simply students from aprior era. It is difficult to generalize, but the21st century law student is probably moredemographically diverse, yet possesses possi-bly a more homogeneous set of learningskills. The 21st century student learns in aworld of electronic data, accustomed to elec-tronic data collections and constant access tomaterials via the internet. This student rarelywrites in longhand, often reads from thecomputer screen, and almost never uses tex-tual materials in the course of research. Thisstudent creates an individual learning envi-ronment in her computer, which is not tied

22 WINTER 2008

THE NORTH CAROLINA STATE BAR JOURNAL 23

to a physical study space such as the librarycarrel, but is portable, moveable, and oftenremotely accessible. When studying, themodern student segments her computerscreen to view several different content itemssimultaneously. Rather than ponder a ques-tion for later study; this student is accus-tomed to the immediate gratification ofWikipedia, Westlaw, Lexis and other sourcesites that make information on endless top-ics available through very simple searches.This student can sit behind his screen andinteract with people and materials otherwisenot available. Thus, the computer itself cre-ates a new learning environment for themodern student. This new environment isnot only an individual environment butextends to the classroom when studentsbring computers into classrooms, particular-ly when those classrooms have wireless accessto the internet.

The historically implemented mode oflegal learning encourages law students todevelop tunnel vision. Professionals havebeen pushed to become experts of theirrespective trades, and lawyers have beenpushed to develop extreme expertise in veryspecific and discrete subject areas. Visually,this model of education-to-practice resem-bles an isosceles triangle as the wide founda-tion of education narrows to a single point.As the individual approaches that taperedarea of proficiency, all interaction with andfeedback from others becomes noise. As aresult of the triangular model, creating ateam of experts resembles a pie with manyslices that represent the individuals whocomprise the team. The team is highly com-petent and skilled in terms of levels ofexpertise brought to the table, but there is lit-tle interaction between members of the teamwhere different perspectives on an issuewould complement each other instead ofindependently existing side by side.

How Elon is DifferentElon Law School endeavors to be a law

school with a difference, a difference thatextends from its theoretical underpinnings toits practical import. Perhaps the first modifi-cation involves abandonment of the symbol-ic goal of traditional legal education, whichwas to teach law students to "think like alawyer."12 Not only does this phrase relate toa time when the professional lacked racial,cultural, and economic diversity, it also failsto speak to students, or faculty, about the

process of legal learning. The goal in mod-ernizing legal education at Elon, therefore, isto maximize effective learning through anadaptation of traditional methods to themodern realities of students and the profes-sion.

The desired visual model at Elon of howa law school should move students from edu-cation-to-practice is not the triangledescribed above, but rather an hourglass.The broad foundation of knowledge tapersto high competency then gradually reopens

such that the individual is receptive to inter-action, feedback, and change from applica-tion of skills and integration of newapproaches. The modern model wouldrespond to the increasing importance andapplication of networking and interactionwith others, and a team can be composed ofhighly competent people who are open tofeedback and new approaches.

A. Offering a Learning-CenteredEducation

At Elon, the goal is to maximize effective

24 WINTER 2008

learning, which is different than maximizinggood teaching. Elon recognizes that teach-ing and learning are not an identity. Justbecause someone is teaching does not meansomeone is likewise learning.

A learning-centered education can havemany meanings. It is not student-centered.It is not about giving students what theywant (or feel entitled to), but rather aboutwhat they need. The goal is not to pandereducational goals to modern gadgetry andgimmickry. Rather, updating the portrait ofthe typical law student allows the institu-tions and faculty to refine the role of teach-ing and learning in the modern law schooland create learning environments bothwithin and without the actual law school,which better equip law students for contin-ued learning and professional practice in the21st century.

For example, if we know that the stu-dent yields or splits his or her screen toshare non-course and course content, weshould endeavor to fill all the windows.When teaching the substance of a case, wecan engage students in their world by call-ing on students to access related cases onWestlaw and Lexis, review a history or popculture reference on Wikipedia, or seek outsome detail related to the case or the noteson the internet. Also, with simple projec-tion technology and classroom internet

access, faculty can demonstrate the rela-tionship between content by projectingtheir own working outline on a split screenthat also includes the case itself and othercontent related to the course, such as ananalytical map. Learning-centered educa-tion is active. It does not just tell studentsabout information, but promotes learningby demonstrating law study and by coach-ing, rather than mandating, studentinvolvement.

B. Preparing for a Global PracticeThose who engage in legal education

should adapt domestic structures to be ableto keep pace with the movement of global-ization in best serving students,13 for differ-ent skills are now significant in interactingproductively and successfully. Born to inter-act remotely through technology, the aver-age law student is a "digital native," awarefrom birth of the limitless resource that isthe internet and intrinsically attuned to theinstantaneous nature of communicationthat is possible, often via devices that fit in apant pocket or a child's palm.14 "Digitalnative" students are beyond the stage ofinfatuation with access to sources distrib-uted globally. This broad scope of access istaken for granted, as globalization is not anexternal concept but what the student livesand breathes. To educate the student as if heor she was a "digital immigrant," adaptingto new technology, fails to take advantage ofthe natural intersection between the studentand the environment of the 21st centurymarketplace. It is hence vital that the studyof law is presented in the vernacular andmodes of the students.

The 21st century world is characterizedby extensive relations, and legal educationserves as a catalyst for personal growth andunderstanding of self in becoming a lawyer.As law firms expand, a lawyer may be incontact with people around the world andtravel to offices, conferences, and meetingsanywhere from Los Angeles to Geneva toTokyo. "Corporate homelessness" is cominginto play such that large firms are pushing atrend of disassociation from a headquarterscity in implementing national and globalstructures, with which it is possible to be anestablished institution in each city wherebusiness is conducted.15 Law students mustexamine and understand their limits toavoid being isolated or overextended in theworld of virtual practice. Finding that bal-ance is a personal issue to a degree, but is

also important that legal education activelyincorporates an understanding of thedemands of 21st century global practice intothe law school curriculum. Combining sub-stantive education directly with practicaleducation allows students to explore theirrole in practice from the first day of theirprofessional education.

C. Cultivating a Professional Identity The recent Carnegie report on legal edu-

cation, "Educating Lawyers," criticized thetraditional model of legal education for itsnarrow cognitive-based approach to educa-tion, where students remained as students(and not lawyers) during most of their lawschool career.16 The report urged lawschools to integrate the cognitive with thepractical; to take law students and makethem practice as lawyers earlier in their edu-cation and in a broader way than was donebefore.

At Elon, we have brought lawyers intothe school as preceptors, reviving an ancientpractice where the preceptors mentor, givefeedback to and guide students throughouttheir first year of law school. In addition,there is a proposal to adopt week-longpracticums for first year students in theirfirst and second semesters of law school,which would allow all students to do somework as quasi-lawyers (under the guidanceand supervision of experienced, highly capa-ble attorneys) and to then write a significantpaper solving a legal problem related to oneof their first year courses. This program is anattempt to apply the Carnegie Report's sug-gestion about integrating legal theory andpractice in a committed and substantialfashion.

Also, Elon is developing and implement-ing a curriculum that interconnects lawstudy with the study of leadership. Studentsexamine leadership in all three years of thecurriculum, first focusing on their attributesas a potential leader, second exploring therole of a leader in connecting to others, andfinally experiencing leadership itself througha capstone project. The curricular designfollows the template developed at theCenter for Creative Leadership and is beingshepherded at Elon by Dean Emeritus LearyDavis and Professor John Alexander, formerExecutive Director of the Center forCreative Leadership. In the leadership pro-gram, students work on legal problem solv-ing by forming teams to research and adviseselected community non-profits on legal

THE NORTH CAROLINA STATE BAR JOURNAL 25

issues facing the organizations. The work iscompleted under the supervision of licensedattorneys and is presented to the client at theclose of the course. The capstone project,the culmination of the leadership course, isan extensive and detailed self-study, similarto a graduate thesis, wherein the studentexplores a community or legal issue fromthe vantage point of leadership study. Thefull leadership course is designed to preparestudents for modern practice, preparing stu-dents to think of the law in a global andcommunity context, rather than solely inthe academic context.

ConclusionA new educational venture provides

opportunities not otherwise available in anestablished setting. Seizing upon thoseopportunities, Elon University has designedits law school to be different than the tradi-tional law school. The Elon Law School isendeavoring to meet the challenges of 21stcentury law practice, incorporating, notdeemphasizing, the unique perspective ofthe 21st century student. The Law School isusing an innovative curriculum thatexplores law and leadership through the suc-cessful medium of engaged learning todevelop lawyers who possess extraordinarysubstantive legal knowledge alongside theself-awareness requisite to success in themodern, global practice.

Catherine Ross Dunham is an associateprofessor of law at the Elon University Schoolof Law. Professor Dunham is a licensed NorthCarolina attorney and a graduate of theUniversity of North Carolina and CampbellUniversity School of Law. She received herLLM from the University of Virginia. At Elon,Professor Dunham teaches civil procedure anddirects the Trial Practice Program.

Steve Friedland is a professor of law andsenior scholar at Elon University School of Lawand has written several books and articlesabout legal education. He received his JD fromHarvard Law School and L.LM and JSDdegrees from Columbia University School ofLaw.

George Johnson is interim dean and profes-sor of law at the Elon University School ofLaw. Dean Johnson is a graduate of AmherstCollege and the Columbia University School ofLaw. He is formerly the president of LeMoyne-Owen College in Tennessee and served on thelaw faculties of Howard University and the

George Mason University School of Law. AtElon, Dean Johnson teaches contracts and con-stitutional law.

Endnotes1. Robert Bocking Stevens, Law School:Legal Education

in America from the 1850s to the 1980s (G. EdwardWhite ed., University of North Carolina Press 2001)(1983).

2. Id. at 20-28.

3. Id. at 53 ("The Langdell approach not only limiteditself strictly to legal rules but also involved theassumption that principles were best discovered inappellate court opinion." This assumption underlaywhat became known as "the case method.")

4. Id. at 53. ("Teaching at Harvard Law School underLangdell's influence consisted of the professor and alarge number of students analyzing appellate deci-sions, primarily in terms of doctrinal logic. Thisenterprise became entangled with the question-and-answer technique … a merger that rather preten-tiously came to be known as the Socratic method.").

5. See American Bar Association statistics on public andprivate law school tuitions; www.abanet.org/legaled/statistics/charts/stats%20-%205.pdf. In 2005, theaverage tuition for a non-resident student at an ABAapproved public law school was $22,507.00 and theaverage tuition at an ABA approved public lawschool was $30,250.00. For information on lawschool endowments, see Top 20 Law Schools by Sizeof Endowment, dated September 20, 2006, "BrianLeiter's Law School Reports," http://leiter-lawschool.typepad.com/leiter/2006/09/top_20_law_scho.html.

6. Global Policy Forum, Defining Globalizationwww.globalpolicy.org/globaliz/define/index.htm(last visited Oct. 6, 2008); see also Global PolicyForum, Globalization of the Economy, www.glob-alpolicy.org/globaliz/econ/index.htm (last visitedOct. 6, 2008).

7. See Globalization of the Economy, Global PolicyForum

8. Terence C. Halliday & Pavel Osinsky, Globalizationof Law, 32 Ann. Rev. of Soc., 447, (2006).

9. Doron F. Ezickson, Law Firms, Clients Should Gain

from Globalization, Boston Globe, Nov. 3, 2002available at www.globalpolicy.org/globaliz/law/intllaw/1103bostonlaw.htm

10. Winston P. Nagan, The Global Challenge To LegalEducation: Training Lawyers For A New Paradigm OfEconomic, Political And Legal-Cultural Expectations InThe 21st Century at 11 (July 23-24, 2004) availableat www.nsulaw.nova.edu/international/caribbean/documents/caribbean%20speech.doc

11. Id.

12. The singular focus of law study on thinking like alawyer, epitomized in films such as "The PaperChase" (Thompson Films 1973), implied that thesheer quantity of time required to learn to think likea lawyer related to its quality. In contrast, the popu-lar culture also intimated that each person had a limitand that some or many students were not minimallyqualified to become a lawyer no matter how hardthey tried.

13. Parikshit Dasgupta, Globalization of Law andPractices (Mar. 6, 2003) available at www.legalservi-ceindia.com/

14. See Marc Prensky, Listen to the Natives, Educ.Leadership, Vol. 63, No. 4 (Dec. 2005/Jan. 2006)("I've coined the term digital native to refer totoday's students (2001). They are native speakers oftechnology, fluent in the digital language of comput-ers, video games, and the Internet. I refer to those ofus who were not born into the digital world as digi-tal immigrants. We have adopted many aspects of thetechnology, but just like those who learn another lan-guage later in life, we retain an "accent" because westill have one foot in the past. We will read a manu-al, for example, to understand a program before wethink to let the program teach itself. Our accent fromthe predigital world often makes it difficult for us toeffectively communicate with our students.").

15. Kevin Livingston, For Firms, There's No Place That'sHome, The Recorder/Cal Law, Aug. 2, 1999.

16. See e.g., William M. Sullivan, Anne Colby, JudithWelch Wegner, Lloyd Bond, and Lee S. Schulman,Carnegie Foundation Report: Educating Lawyers:Preparation for the Profession of Law, (John Wileyand Sons, 2007). See also Roy Stuckey and others,Best Practices for Legal Education: A Vision and a RoadMap, Clinical Legal Education, 2007.