Will Legal Education Change Post-2020?
The famed book review issue of the Michigan Law Review feels like a reminder of better days. As this issue goes to print, a shocking 554,103 people have died of COVID-19 in the United States alone, the country seems to have begun a long-overdue national reckoning on race, climate change and economic inequality continue to ravage the country, and our Capitol was stormed by insurrectionists with the encouragement of the president of the United States. In the usual year, a scholar would happily pick up this volume and delight in its contents. This year, one marvels at the scholars who managed to finish their reviews on time.
The editors have asked me to reflect on how 2020, particularly the pandemic, will change legal education. Like most institutions, law schools have undergone a stress test over the past year. During the early days of the pandemic, every school put a centuries-old teaching tradition online, often within the space of a single week. Most thought that the pace of change would slow down in April. It didn’t. For months, COVID generated crisis after crisis. Schools had to deal with budgetary shortfalls, a stock market crash, job losses, postponements of the bar exam, the loss of virtually all of their international students, and the terrible hardships that COVID caused for students, staff, and faculty. To top it all off, any school that—like Yale—brought its students back in the fall for in-person learning had to invent new forms of teaching for the classroom and an entirely new set of communal rules for campus interactions. Even though the pandemic has not yet lifted, one can already make out the ways in which law schools’ adaptations to the pandemic will eventually be structured into legal education’s gene sequence.
I. Legal Education Writ Small
There is no doubt that 2020 will have at least some effect on legal education writ small. Here I believe we’ll see a story of continuity and change. The pandemic seems unlikely to change what we do but likely to change how we do it.
It might seem strange to suggest that a period of enormous upheaval would lead to continuity rather than change. Adaptation is part of the COVID story, but only a part of it. That is because the chaos the pandemic engendered forced every school worth its salt to shove all else aside and relentlessly focus on what mattered most: Teaching. Ideas. Service.1A dean’s list of institutional priorities also included protecting the staff from layoffs even in the midst of a brutal budgeting season. Deans are always grateful for their staff members, and their devotion to their schools has never been more evident. We owe them a debt, and every dean I know has done her best to repay it.
As painful as it is to set aside all of the wonderful things law schools can do, it is also clarifying. Some institutions spend a lot of time crafting mission statements. But a crisis makes clear that a streamlined, if painful, strategy for figuring out your mission is deciding what you aren’t going to do. COVID deaning has been illuminating, to say the least.
Even as schools reoriented themselves around their core mission, they were forced to change how they carried out that mission. The ones that adapted most easily were those with a restless gene.2And resources, of course. The difference that resources can make is a constant in legal education, so I will not discuss their importance at length given that the aim of the Foreword is to talk about change across the spectrum. But it would be obtuse not to acknowledge the importance of resources in times of trouble, especially as the dean of a school where they are so plentiful. Restless institutions do not seek change for its own sake; they seek change in order to keep the institution itself. Restless institutions—and the change deans who lead them—can be exhausting in a usual year, but they have their uses during a pandemic. Schools accustomed to a dynamic relationship between the past and the future have found it easier to adapt to the needs of the present. And COVID deaning is simply change deaning on steroids.
As the pandemic unfolded, some administrators were too paralyzed to plan effectively. They lacked the ability “to meet [their] trouble,” to butcher a line from Much Ado About Nothing.3William Shakespeare, Much Ado About Nothing act 1, sc. 1, l. 94–95. Unable to adapt, their impulse was simply to do what we’ve always done . . . except on Zoom.
The administrators who had an easier time handling the pandemic focused not on what they usually did but on why they did it in the first place. Put more simply, they tried to figure out what magic they’d been trying to achieve, and then they set out to achieve it in some other way.
It doesn’t take long to realize what’s magic and what isn’t about legal education. If you look to what law schools worked to preserve in the midst of chaos, budgetary pressures, and personal stress, you’ll quickly see what matters.
The first is teaching. Some complain that law schools are predominantly research institutions, with teaching serving as a side gig to pay the bills. What happened in schools across the country belies that claim. It was nothing short of moving to witness how much time and energy professors put into revamping their teaching and figuring out how to make online and hybrid classes as engaging as possible. And while law schools might sometimes seem impersonal to students, I know from conversations with many fellow deans that our faculty members worried incessantly about what their students were going through and brainstorming about how best to help.
One moment that captured for me the fierce devotion professors have for their students took place over the summer. The Trump Administration had briefly issued a senseless and cruel directive requiring international students to attend in-person classes in order to maintain their visa status.4See U.S. Immigr. & Customs Enf’t, Broadcast Message: COVID-19 and Fall 2020 (July 6, 2020) (on file with the Michigan Law Review); see also SEVP Modifies Temporary Exemptions for Nonimmigrant Students Taking Online Courses During Fall 2020 Semester, U.S. Immigr. & Customs Enf’t (July 6, 2020), https://www.ice.gov/news/releases/sevp-modifies-temporary-exemptions-nonimmigrant-students-taking-online-courses-during [https://perma.cc/Y4UH-2T3T]. Even at schools like Yale, where in-person classes were slated for the fall, the policy created the possibility that international students might be forced to leave the country at the height of a pandemic simply because public health conditions required a university to go online. Over the next two days, my deputy dean and I spoke with almost everyone on our faculty. Every single one of my colleagues volunteered that if the Law School had to go online, they would nonetheless offer an in-person, one-on-one tutorial to our international students to protect them from deportation. One of my colleagues—who for age and health reasons was sheltering at home—told me that he would teach outside in the snow if he had to.
I expect the changes in law school pedagogy to stick. That is not to say that classes will remain online when the pandemic subsides. But the pandemic led to many collective conversations about pedagogy. We have all thought a great deal harder about structuring class discussions, adapting to different learning styles, varying the pace of class, and conveying information in new and engaging ways. We discovered that flipped classrooms can sometimes work, and that they are certainly superior for the training sessions supplied by academic affairs, career development offices, and the like. Finally, the regular introduction of visitors was for some an act of desperation—an effort to make yet another Zoom class feel livelier. But it made us realize that technology gives us a means of bringing the world into our classrooms.
The conversations about educational equity that took place across the country also seem likely to spur sustained change. If faculty members were unaware of the pernicious ways that inequality shapes educational outcomes before the pandemic, I do not see how they can have missed that lesson during 2020 after they witnessed the challenges some students faced. For this reason, I expect that law schools will do more to shore up their financial and institutional support for groups of students facing predictable and identifiable challenges, such as first geners and students of color.5One predictable challenge going forward should be to recognize that students will face unpredictable burdens. Financial aid is wonderful, but students also need safety-net funds as well. Needless to say, wealthy and middle-class families serve as a safety net for their children when unexpected costs arise. We must be attentive to the students who don’t just lack such a safety net but are effectively serving as the safety net for their own family members.
While these healthy forms of change seem likely to endure, the pandemic has also provided a keen reminder why we value having our students live and learn in the same space. Over the last year, we’ve all managed to MacGyver a virtual legal classroom. But a lot of professional learning takes place outside the classroom. The pandemic has not allowed for random hallway conversations, lunchtime gossip sessions, late-night debates, and many other forms of peer-to-peer interactions that deepen learning outside the classroom and help shape students’ personal and professional outlook. Moreover, those schools that taught through a hybrid model found that one (partial) remedy for inequality is bringing everyone to campus, where schools can better attend to their students’ housing, healthcare, mental health, and technological needs. I very much hope that law schools will take advantage of the flexibility that Zoom supplies to offer classes by professors who can’t be in residence and to pool resources to create specialized classes that they could not otherwise offer regularly. But it would be surprising, to say the least, to discover that every school teaches virtually twenty-five years from now.
The story of continuity and change seems likely to hold for schools’ research mission as well. While faculty rarely underestimate the magic of our shared intellectual life, the pandemic made clear how central it is to who we are. As with other schools, there was an enormous sense of relief when Yale’s first faculty workshop on Zoom went off without a hitch. As the pandemic stretched from weeks to months, even schools with powerful workshop cultures discovered more faculty—and more enthusiastic faculty—in attendance. The fact that we have been generating and talking about ideas since last March has provided an important form of sustenance for all.
If change occurs when the pandemic lifts, we should not expect all academic discussions to go virtual. One would hope that conferences will be offered virtually more often, something that matters for equity as well as the environment. But I don’t expect a similar change to take place within the walls of a school. Zoom workshops can be excellent, but they are not a substitute for the chance to wander into your colleagues’ office and bang a half-formed notion into an idea. Scholars from Jane Jacobs6See Jane Jacobs, The Death and Life of Great American Cities (1961). to Ed Glaeser7See Agglomeration Economics (Edward L. Glaeser ed., 2010). have tried to capture the magic that chance interactions and human connections can achieve in cities. Their insights hold for small places, too.
Thus, if there is more fundamental change in the wake of the pandemic, it may be in our academic habits. The pandemic has completely reoriented our calendars, with speaking events and conferences canceled or at least shortened. I don’t think this shift will augur an immediate increase in scholarly productivity. Most faculty shifted their time from scholarship to childcare, family members in need, or just their own mental health. But when normalcy resumes, will we return to our old pace? I’m not sure. When one of my colleagues arrived at Yale and witnessed the hubbub of daily events, he observed that everyone needed to do less and to do less well. I laughed at the time, but COVID may have proved him right. Centers and conferences and speaking events are all wonderful, of course. But when there are too many of them, they can fritter away our time and fracture our shared communal life. Perhaps we will all focus more on the quotidian delights of a scholarly life—workshops, colleagues down the hall, and time to write.
Service is another form of magic that has sustained law school communities during the pandemic, much of it taking place through clinics. What made that magic all the more powerful during this moment is that our students and faculty were protecting others from many of the same forces that were buffeting their own lives. Faculty and students who felt isolated and siloed were able to work collaboratively and connect to their communities. During the early months of the pandemic, for instance, it gave us all a great deal of hope to know that Yale students were suing to depopulate ICE facilities8WIRAC Suit Seeks Release of ICE Detainees Due to Coronavirus Threat, Yale L. Sch. (Mar. 27, 2020), https://law.yale.edu/yls-today/news/wirac-suit-seeks-release-ice-detainees-due-coronavirus-threat [https://perma.cc/9JXP-4EPX]. and prisons9CJAC Wins Speedy Release of Medically Vulnerable Individuals from Federal Prison in Danbury, Yale L. Sch. (Dec. 11, 2020), https://law.yale.edu/yls-today/news/cjac-wins-speedy-release-medically-vulnerable-individuals-federal-prison-danbury [https://perma.cc/3CEY-VSJT]; Vets Clinic Files Suit on Behalf of 80-Year-Old Incarcerated Disabled Veteran, Yale L. Sch. (Apr. 22, 2020), https://law.yale.edu/yls-today/news/vets-clinic-files-suit-behalf-80-year-old-incarcerated-disabled-veteran [https://perma.cc/QY9D-9F6K]; see also CT Veterans Organizations Urge State to Protect Incarcerated Veterans Against COVID-19, Yale L. Sch. (Nov. 11, 2020), https://law.yale.edu/yls-today/news/ct-veterans-organizations-urge-state-protect-incarcerated-veterans-against-covid-19 [https://perma.cc/P5XA-U4WC]. while others were plastering New Haven with flyers in an effort to reach community members in need.10Clinic Students Provide Resources for Greater New Haven Businesses and Nonprofits, Yale L. Sch. (Apr. 20, 2020), https://law.yale.edu/yls-today/news/clinic-students-provide-resources-greater-new-haven-businesses-and-nonprofits [https://perma.cc/S3HQ-QTDE]; Robert Storace, Yale Law Clinic Students Help Small Businesses Navigate COVID-19 Pandemic, Conn. L. Trib. (Apr. 29, 2020, 4:46 PM), https://www.law.com/ctlawtribune/2020/04/29/yale-law-clinic-students-help-small-businesses-navigate-covid-19-pandemic [https://perma.cc/7V7D-W8XT]. During the last few weeks of the fall semester, as the second wave of the pandemic began to crest, suits brought by our clinics helped reinstate DACA in its entirety,11Federal Court Orders DACA Program Restored in WIRAC Case, Yale L. Sch. (Dec. 4, 2020), https://law.yale.edu/yls-today/news/federal-court-orders-daca-program-restored-wirac-case [https://perma.cc/BMQ6-46CU]. block President Trump’s cruel public-charge rule in the Ninth Circuit,12SFALP Students Win in Ninth Circuit, Blocking “Public Charge” Rule, Yale L. Sch. (Dec. 3, 2020), https://law.yale.edu/yls-today/news/sfalp-students-win-ninth-circuit-blocking-public-charge-rule [https://perma.cc/35LJ-P3CR]. and enabled thousands of veterans with PTSD to seek honorable discharges.13See Veterans Clinic Secures Major Settlement in Army Class Action, Yale L. Sch. (Nov. 18, 2020), https://law.yale.edu/yls-today/news/veterans-clinic-secures-major-settlement-army-class-action [https://perma.cc/8P7V-7U4P]. Service has always been a touchstone of our profession, and COVID has made clear its necessity.
While we’ve seen many forms of innovation, from oral arguments over Zoom to video testimonials, here too change will be limited. There are many ways to make clinics work online,14Emma Sokoloff-Rubin, Strategies for Remote Clinical Supervision, Clinical L. Prof Blog (Aug. 20, 2020), https://lawprofessors.typepad.com/clinic_prof/2020/08/emma-sokoloff-rubin-strategies-for-remote-clinical-supervision.html [https://perma.cc/DVS8-VFQB]. and it would be helpful to relieve lawyers of the need to travel so often. The courts’ increasing comfort with technology might allow clinics to venture beyond their traditional local focus and find new arenas for their work. But virtual lawyering will not work for many clinics as long as the technological divide persists. Moreover, if you think for a moment about how hard it is to read facial expressions and emotions on Zoom, you will know that the intensive pedagogy that is the hallmark of clinics should ideally take place in person. The same is true of any work done with those who have suffered trauma. For most clinics, human interaction is what turns a lawyer-client relationship into a partnership.
You’ll quickly see a common thread in this brief and decidedly preliminary analysis of the future. As much as the pandemic has forced us to imagine doing things differently, it has also been an important reminder of what we’ve lost in doing so. What one might call the “commonplace civilization”15I borrow the phrase from Frederick Olmsted, who thought a good deal about the relationship between humanity and shared space. For a lovely essay connecting the two, see Adam Gopnik, Olmsted’s Trip, New Yorker, Mar. 31, 1997, at 96, https://www.newyorker.com/magazine/1997/03/31/olmsteds-trip [https://perma.cc/7ZLE-W8Q4]. of law schools matters to our mission, whether it be teaching, research, or service. Teaching, research, and service are empty endeavors in the absence of a robust and engaged community. Thus, if I had to use a single word to describe what deans worked hardest to preserve over the last year, it is community.
That is why COVID deaning is, at bottom, an exercise in mourning. Over the last year, whenever administrators presented a plan for the first time to faculty or students, the response would often be to reject the plan, even condemn it. Some of those arguments went to the merits. But as often as not, those arguments were a sign that people were trying to process just how short of the ideal our options have fallen during COVID. That resistance has been enormously frustrating to the administrators, who spent time and energy weighing the costs and benefits and choosing the best (albeit suboptimal) option. But to my mind, the second-guessing is best understood as evidence that law school administrators were just a bit farther ahead in the process of mourning than everyone else.
II. Legal Education Writ Large
I will confess that as I penned Part I, I was worried that I was indulging in a bad law-student habit: resisting the hypothetical. One would think that a once-in-a-century pandemic would be the most important event of 2020 to change legal education.
It wasn’t. At least I hope not.
For legal education writ small, COVID-19 will change how we do some things, but if anything it’s generated more appreciation of our core mission. The remainder of 2020, however, has cast doubts on just about everything, including our core mission. For me, then, the most important question is whether 2020 will change legal education writ large.
It feels a bit silly to name what else has occurred during 2020. In case some poor soul stumbles across this Foreword a few decades from now, let me name just a few of the stories that have been on our minds this year. The nation seems to be engaged in a centuries-overdue reckoning on race.16See supra note 2; see also, e.g., Bryan Schonfeld & Sam Winter-Levy, After This Summer’s Protests, Americans Think Differently About Race. That Could Last for Generations., Wash. Post: Monkey Cage (Oct. 12, 2020, 7:00 AM), https://www.washingtonpost.com/politics/2020/10/12/after-this-summers-protests-americans-think-differently-about-race-that-could-last-generations [https://perma.cc/N58H-46QT]. The pandemic has amplified the pernicious effects of economic inequality and structural racism.17See, e.g., Vida Abedi et al., Racial, Economic, and Health Inequality and COVID-19 Infection in the United States, 8 J. Racial & Ethnic Health Disparities (forthcoming 2021), https://doi.org/10.1007/s40615-020-00833-4 [https://perma.cc/28F3-6BF9]; Tim F. Liao & Fernando De Maio, Association of Social and Economic Inequality with Coronavirus Disease 2019 Incidence and Mortality Across US Counties, JAMA Network Open (Jan. 20, 2021), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2775303 [https://perma.cc/2T26-C65W]; Shaun Ossei-Owusu, Coronavirus and the Politics of Disposability, Bos. Rev. (Apr. 8, 2020), http://bostonreview.net/class-inequality-race-politics/shaun-ossei-owusu-coronavirus-and-politics-disposability [https://perma.cc/22EX-AGPR]; Covid-19 and Inequality, Inequality.org, https://inequality.org/facts/inequality-and-covid-19 [https://perma.cc/867R-VDTL]; Elizabeth Wrigley-Field, US Racial Inequality May Be as Deadly as COVID-19, 117 Proc. Nat’l Acad. Scis. 21854 (2020); Rajan Menon & Jeffrey Kucik, We’re Not All in It Together, Bos. Rev. (May 18, 2020), http://bostonreview.net/class-inequality/rajan-menon-jeffrey-kucik-were-not-all-it-together [https://perma.cc/M8PR-EW64]; Colin Gordon, Walter Johnson, Jason Q. Purnell & Jamala Rogers, COVID-19 and the Color Line, Bos. Rev. (May 1, 2020), http://bostonreview.net/race/colin-gordon-walter-johnson-jason-q-purnell-jamala-rogers-covid-19-and-color-line [https://perma.cc/RF8G-3SZH]. 2020 is tied for the warmest year on record,18Henry Fountain, 2020 Ties 2016 as Hottest Yet, European Analysis Shows, N.Y. Times (Jan. 15, 2021), https://www.nytimes.com/2021/01/08/climate/hottest-year-ever.html [https://perma.cc/J425-3AZY]. and climate change continues to ravage the globe. Throughout the last few years, our political system has been subject to a stress test, with high levels of political polarization and institutional norms challenged at every turn. The end of President Trump’s term was marked by a violent mob storming the United States Capitol to overturn the results of a free and fair election. In the days and months following the election, members of our own profession attacked the legitimacy of a free and fair election without facts or evidence, deliberately misled the public about our democratic process, and disregarded the risk and reality of violence. In doing so they betrayed the core values of our profession.19See A Message from Dean Gerken on Joint Law Deans’ Statement, Yale L. Sch. (Jan. 12, 2021), https://law.yale.edu/yls-today/news/message-dean-gerken-joint-law-deans-statement [https://perma.cc/9UBP-EEKG].
All of these issues matter to what we do as professional schools, academic centers, and institutions of power. Each raises foundational questions about what we think, write, and teach about. These problems are a sign of institutional failure, democratic failure, law’s failures, and the failure of the institutions that train the profession.
These problems are also not new. They have had many fine minds working on them, sometimes for decades. 2020 has not raised these issues for the first time. But it has brought home for many more of us that whatever we have done thus far, it hasn’t been nearly enough.
As a result, conversations among faculty, students, and alumni feel different. There is a deeply felt need to do more, do better. Almost everyone is trying to push harder and dig deeper. The call for change is far more urgent, and many more are taking it up. We may even have reached a moment when the conversation has fundamentally changed, when it would be unthinkable not to engage with issues that even serious scholars had previously set to one side. Schools are exploring ways to embed questions of race and economic inequality into the curriculum, with an aim to improve not just the breadth of coverage but the depth of discussion. Law schools are creating new workshops, centers, and clinics.20See, e.g., Julia Brown, Center for Law and Racial Justice to Open Next Fall, Yale Daily News (Oct. 21, 2020, 12:37 AM), https://yaledailynews.com/blog/2020/10/21/Salovey-announces-creation-of-new-center-for-law-and-racial-justice [https://perma.cc/6HPV-XHFJ]; Mellon Foundation, Justice Collaboratory Announce Million Book Project, Yale L. Sch. (June 30, 2020), https://law.yale.edu/yls-today/news/mellon-foundation-justice-collaboratory-announce-million-book-project [https://perma.cc/BBA8-7E62]; Yale to Launch Center Focused on Health and Mass Incarceration, Yale L. Sch. (June 29, 2020), https://law.yale.edu/yls-today/news/yale-launch-center-focused-health-and-mass-incarceration [https://perma.cc/CP74-VTHF]; John Manning, Standing Together at HLS, Harv. L. Sch., https://hls.harvard.edu/standing-together-at-hls [https://perma.cc/8DCU-F8T3]; Advisory Board to Examine Race and Racism at Michigan Law Announced, Univ. Mich. L. Sch. (July 24, 2020), https://www.law.umich.edu/newsandinfo/features/Pages/Advisory-Board-to-Examine-Race-and-Racism-at-Michigan-Law-Announced_07242020.aspx [https://perma.cc/3SEY-V8F5]. And at least at Yale, we are thinking about how to teach ethical decisionmaking outside the narrow bounds of our professional ethics courses.21See A Message from Dean Gerken on Joint Law Deans’ Statement, supra note 22.
It’s hard to know what comes next, and I think it’s important for all of us to admit that fact. The problems raised by the events of 2020 are incredibly hard to solve. By definition, structural problems don’t lend themselves to easy solutions. No institution is immune from them. Even when good-hearted, well-meaning people are involved, these problems get played out again and again in a fashion that is both unpredictable and entirely predictable.
Moreover, the solutions law schools have pursued thus far have fallen into conventional buckets—curricular, research, clinical. Should that fact lead us to despair, because these strategies seem modest when compared to the problem? Or should it give us hope, because our ultimate aim is to weave these issues into the warp and woof of legal education? Will these discussions lead to new fields of inquiry? Deeper engagement with the communities we inhabit? Changes in the way we teach, research, and practice? Will the politics and socioeconomics of 2020 change law schools in a way that a pandemic could not?
In Gertrude and Claudius, the king is described as “all answer, with no question.”22John Updike, Gertrude and Claudius 59 (2000). *Dean and Sol & Lillian Goldman Professor of Law, Yale Law School, and proud Michigan Law grad. I owe thanks to a number of kind colleagues, including Muneer Ahmad, Miriam Gohara, Gregg Gonsalves, Doug Kysar, Tracey Meares, Sam Moyn, and Michael Wishnie. Mistakes are my own. Most law professors these days are just the opposite. It is humbling, to say the least.
And so we end 2020 humbled, filled with doubt, and haunted by our failures.
It’s a start, at least.