Technology-Based Experiential Learning - A Transnational Experimen
Technology-Based Experiential Learning - A Transnational Experimen
Technology-Based Experiential Learning - A Transnational Experimen
Technology—Based Experiential
Learning: A Transnational
Experiment
by Tahirih Lee
Introduction
With law school applications in the United States down by half in less than a
decade,2 what better time to look outside the United States for ways to respond?
The disappearance of applicants purportedly reflects widespread disaffection
with legal education, principally its allegedly flaccid correspondence with
what lawyers do.3 Institutions of higher learning around the world face
the problem of linking their education to jobs, and many have responded
with mandatory experiential components such as apprenticeships between
school and employment. But a high level of coordination with government
required by such apprenticeship systems puts them out of our reach.4 When
the Shanghai University of International Business and Economics lost the
Chinese government’s support for internships in international trade for all
the school’s graduates, an enterprising faculty member, Zhu Wei, looked to
technology for a solution and created a digital internship. Computerized
games like his would provide experiential learning to American law students
in a pedagogically controlled environment and remove most of the negative
risks of their use of technology in the classroom, such as Web surfing and
anonymous bullying.
Why turn to technology for ideas? It is not because the fastest-changing
component of education in that decade was the use of technology to replace the
4.For example, before beginning the practice of law in France, a graduate from a law school
there is required by national statute to complete 18 months of “practical training.” Loi 91
1197 du 27 novembre 1991 d’organisant la profession d’avocat [Law 91-1197 of November 27,
1999 on Organizing the Legal Profession], Journal Officiel de la République Française
[J.O.] [Official Gazette of France], Nov. 28, 1991, p. 15502. See European Commission,
Lawyers Training Systems in the EU: France (2014); Catherine Elliott & Catherine
Vernon, French Legal System 210-19 (2000); Les nouveaux Cahiers de doléances des Français,
Marianne, Aug. 29, 2014, at 29.
In Germany, upon completion of law school and a national examination, a prospective
lawyer must undergo a two-year period of practical training, the Referendariat, in which
students spend several months working in the courts, government, law firms and other
positions. The German Law on the Judiciary mandates that law schools arrange these
internships, whose details vary from state to state. See Deutsches Richtergesetz [German
Judiciary Act], April 19, 1972, BHBl. I at 713, § 5b (Ger.); European Commission, Lawyers
Training Systems in the EU: Germany (2014); Nigel Foster & Satish Sule, German
Legal System and Laws 85 (3d ed. 2002).
Both tracks in the United Kingdom’s law profession require two stages of practical
training, both overseen by their respective bar associations. Barristers, after graduating
from a university with an LL.B degree, take the “Bar Vocations Course,” and then enter
into a “pupillage.” Solicitors take the “Legal Practice Course” for one year following
law school and then a 2-year training contract. The Bar Training Regulations, The Bar
Tribunals & Adjudication Service 7 (Sept. 2013), http://www.tbtas.org.uk/wp-content/
uploads/2013/07/Bar-Training-Regulations-2013.pdf; SRA Training Regulations 2014,
Solicitors Regulation Authority (July 1, 2014), http://www.sra.org.uk/trainees/period-
recognised-training.page. See European Commission, Lawyers Training Systems in the
EU: England & Wales (2014); Pupillage, The Bar Council, http://www.barcouncil.org.
uk/becoming-a-barrister/how-to-become-a-barrister/pupillage/ (last visited Sept. 14, 2014);
Pupillage, Bar Standards Board, https://www.barstandardsboard.org.uk/qualifying-as-a-
barrister/pupillage/ (last visited Oct. 15, 2014).
Technology-Based Experiential Learning 457
notepad and pen,5 the book,6 the photocopy center,7 the overhead projector,8
the classroom, and the teacher.9 During that decade, technology, in the form
especially of personal computers connected to the Internet, took hold of
classrooms in American law schools. Despite calls for intelligent responses to
it,10 the upsurge of machines in law school classrooms did not fundamentally
change the way law teachers teach.11 The most pronounced change wrought
by increased access to the Internet has been to distance students from the
traditional educational experience offered by their professors. If professors
played a role in this distancing, it was one of enabler, by tolerating it.
Technology has not only failed to usher in improvements to legal education,
its indiscriminate use is also responsible for a deterioration of the law school
experience. Rampant abuses by students of technology have given it a bad
reputation in legal academe.12 I believe that the malaise of the surfing law
student is one of the reasons that law schools have fallen prey to accusations
5. See Pamela Lysaught & Danielle Istl, Integrating Technology: Teaching Students to Communicate in
Another Medium, 10 J. Legal Writing Inst. 163 (2004).
6. For discussions of electronic formats for reading in law schools, see Debra Moss Curtis &
Judith R. Karp, In a Case, On a Screen, Do They Remember What They’ve Seen? Critical Electronic Reading
in the Law Classroom, 30 Hamline L. Rev. 247 (2007); Robert Laurence, Casebooks are Toast, 26
Seattle U. L. Rev. 1 (2002).
7. See Joan MacLeod Heminway, Caught in (or on) the Web: A Review of Course Management Systems
for Legal Education, 16 Alb. L.J. Sci. & Tech. 265 (2006); Marie Stefanini Newman, Not the
Evil TWEN: How Online Course Management Software Supports Non-Linear Learning in Law Schools, 5 J.
High Tech. L. 183 (2005).
8. Apparently law professors use digital technology for displaying materials less extensively
than professors in the other professional schools. See Fred Galves, Will Video Kill the Radio Star?
Visual Learning and the Use of Display Technology in the Law School Classroom, 2004 U. Ill. J.L. Tech.
& Pol’y 195, 203-04 (2004).
9. For an attempt to tailor pedagogy to an online format, see Joseph A. Rosenberg, Confronting
Clichés in Online Instruction: Using a Hybrid Model to Teach Lawyering Skills, 12 SMU Sci. & Tech. L.
Rev. 19 (2008). For a discussion of law degrees offered entirely through online courses, see
Andrew S. Rosen, Concord University School of Law’s On-line Law Degree Program, 15 St. John’s J.
Legal Comment. 311 (2001). For a brief report on the increasing number of individual online
university-level courses, see Tamar Lewin, Students Rush to Web Classes, But Profits May be Much
Later, N.Y. Times, Jan. 7, 2013, at A1 [hereinafter Lewin, Students Rush to Web Classes]; Tamar
Lewin, Universities Abroad Join Partnerships on the Web, N.Y. Times, Feb. 21, 2013, at A18 (Coursera
added 29 universities from around the world to its consortium of developers of free online
courses).
10. For prominent examples of such clarion calls, see Paul L. Caron & Rafael Gely, Taking Back the
Law School Classroom: Using Technology to Foster Active Student Learning, 54 J. Legal Educ. 551, 554-56
(2004); Diana R. Donahoe, An Autobiography of a Digital Idea: From Waging War Against Laptops to
Engaging Students with Laptops, 59 J. Legal Educ. 485 (2010).
11. See Caron & Gely, supra note 10, at 554-56 (two law professors describe as widespread the
kind of watered-down Socratic method that is still used today, while students distanced
themselves from the dialogue in class by escaping into the Internet).
12. For a discussion of this negative reputation, see Kristen E. Murray, Let Them Use Laptops:
Debunking the Assumptions Underlying the Debate Over Laptops in the Classroom, 36 Okla. City U. L.
Rev. 185 (2011).
458 Journal of Legal Education
of abandoning their mission to train lawyers. When critics lament that law
professors are too “theoretical,”13 which is far from the truth at most law
schools, what they may mean is that law students do not feel engaged by their
classes. Simultaneously performing class-related and non-class-related tasks
in class dilutes the learning experience and leaves students less equipped to
practice law.14 The haphazard and incomplete integration of technology into
the classroom lowers the expectations of students. Students roaming around
on the Internet without having to put their computers to good use creates
an impression of wasted time that stretches throughout legal education, the
memory of which surely carries into life on the bench and at the bar and dims
the views of these legal professionals about the quality of legal education.
This current state of affairs can be remedied by a contraction of the liberty
afforded to each law school student. As much as possible, students must be
prevented from creating their own personalized educational experience and
from using technology to isolate themselves. Isolation results from a student’s
indiscriminate use of technology, which is tolerated by law school teachers and
administrators possibly in the pursuit of goals unrelated to sound pedagogy,
such as budget cuts, or expanding access to legal education through distance
learning,15 or appeasing students in exchange for high scores on teaching
evaluations, or creating an impression of high-tech for the rankings race. The
law teacher who allows students to touch technology in the classroom must
turn it into a gateway to a comprehensive, demanding, collaborative, and
all-consuming interactive experience that stimulates learning of key skills.16
Trends in technology generally, and those pioneered by educators right now,
including videoconferencing and distance learning that connects live classes
to remote guest speakers or students,17 point the way toward ways to improve
13. A stinging rebuke along these lines was published on the front page of The New York Times
near the end of 2011. See Segal, supra note 3.
14. For an observation of student surfing the Web and other electronic pastimes in the classroom,
see Diana R. Donahoe, supra note 10.
15. See, e.g., Abigail Cahak, Note, Beyond Brick-and-Mortar: How (Cautiously) Embracing Internet Law
Schools Can Help Bridge the Legal Access Gap, 2012 U. Ill. J.L. Tech. & Pol’y 495 (2012). For an
example of a call for distance learning to spread the influence of a particular area of U.S. law,
see Michael L. Perlin, An Internet-Based Mental Disability Law Program: Implications for Social Change
in Nations with Developing Economies, 30 Fordham Int’l L.J. 435 (2007).
16. The current use of tech as escape from learning the law should not mask the virtues of
tech for transforming legal education to meet the needs of a changing world. Getting rid
of personal computers—and whatever smaller devices will succeed them—is not a solution,
as students today are dependent upon them for a range of scholastic tasks, and personal
electronic devices are integral to the practice of law. For an extended argument that today’s
law students and lawyers access the law in ways that technology has fundamentally altered
from several decades ago, see Diana R. Donahoe, Bridging the Digital Divide Between Law Professor
and Law Student, 5 Va. J.L. & Tech 13 (2000).
17. Offering entire law courses online, which is called “distance learning,” depending on how it’s
done can either distance students from teachers or, by using videoconferencing and Skype,
enrich the interactions of students with students and teachers in remote locations without
removing the primary teacher from the classroom. Examples of the former abound. For a
Technology-Based Experiential Learning 459
rather than degrade that experience. And yet none of them ensures a use of
technology that, first, inhibits anonymity, and, second, minimizes students’
freedom and discretion.
Decreasing the distance between students and teachers, and among
students, and thrusting them into situations where they must apply what they
have learned, are important parts of reining in pupils’ freedom and discretion
to levels where they do not interfere with learning, and digital games are
particularly well-suited to this. This is what Professor Zhu Wei at the Shanghai
University of International Business and Economics, and I at Florida State
University College of Law, have been undertaking together since 2001, in a
course that we jointly teach on international trade transactions.18 Known as the
International Trade Simulation, or ITS, it is the first and still only computerized
simulation of international trade transactions offered in a law school in the
United States.19 In a simulated environment that can be accessed on our server,
description and an analysis of an early example of the latter, see Helen Leskovac, Distance
Learning in Legal Education: Implications of Frame Relay Videoconferencing, 8 Alb. L.J. Sci. & Tech. 305
(1998). Other innovators have used videoconferencing to link their U.S.-based law class with
a law class in another country. Sandy D’Alemberte and Terry Coonan at the FSU College of
Law do this with classes in Russia, as did Chuck Irish, head of the University of Wisconsin’s
East Asian Legal Studies Center through 2011.
18. See Part III, infra.
19. Of course, Professor Zhu Wei and I are not alone in trying to use technology to improve
legal education. A vanguard of law teachers in the United States, working for the most
part independently, have devoted untold hours and years to innovating with technology to
improve legal education. Foremost among them would have to be the creators of CALI, the
major resource for computer-based learning in American law schools. Thirty-five years ago,
Roger Park and Russell Burris, while describing their work on computer-based exercises,
posited that computer-based simulations were possible. For this idea, and a history of the
early years of CALI and the larger movement that gave birth to it, written by its innovators, see
Roger Park & Russell Burris, Computer-Aided Instruction in Law: Theories, Techniques, and Trepidations,
1978 Am. B. Found. Res. J. 1 (1978). For a brief description of CALI’s genesis and its results
through the mid-1990s, see Michael A. Geist, Where Can You Go Today?: The Computerization of
Legal Education From Workbooks to the Web, 11 Harv. J.L. & Tech. 141, 144 (1997) (concluding that
the movement to add computerized exercises to law classrooms “has never achieved the
promise envisioned by its proponents . . . .”); Shelley Ross Saxer, One Professor’s Approach to
Increasing Technology Use in Legal Education, 6 Rich. J.L. & Tech. 21, 28 (1999) (these computer-
based exercises help students achieve an understanding of “black letter law” with less
instructional time put in by the teacher, but they do not “significantly” help students “think
independently” or “understand[s] the rationales underlying the law.” What is more, “[s]ome
educators believe that these exercises may actually work against these larger legal education
goals . . . .”). Diana Donahoe created an e-book whose links to videos allow students to
“listen to real oral arguments” and testimonials of alumni of the course, “see sample pages
[of secondary sources], move their mouse over them to find annotations and references, and
do exercises to test their knowledge and use of those materials.” See Donahoe, supra note 10,
at 503. Kathleen Elliott Vinson’s proposal to supplement courses’ written materials with
podcasts is creative and forward-looking. See Kathleen Elliott Vinson, What’s on Your Playlist?
The Power of Podcasts as a Pedagogical Tool, 2009 U. Ill. J.L. Tech. & Pol’y 405 (2009). These
innovations push the needle from passive toward active learning and thereby can be seen
as preliminary steps in the direction toward courses that offer a comprehensive professional
experience. But no one would argue that these programs increase the interaction between
460 Journal of Legal Education
23. See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and
State Courts, 1 J. Empirical Legal Stud. 459 (2004).
Technology-Based Experiential Learning 463
The quid pro quo includes options to live on campus in the twilight of their
careers in exchange for mentoring students.
For periods of a few months, most of the program is held on site, in any one
of the schools’ satellite campuses in the major cities of the world.24 The sessions
are so intense that it is normal for students to go back into the work world for
periods between each one to decompress and apply what they’ve learned. The
sessions are akin to preparing a world-class athlete for a competitive event.
Professors function like personal trainers or coaches, with lots of one-on-one
contact with students. These sessions are highly personalized and geared
toward guiding the students through complex simulations of transactions.
Groups of students in several of these global locations simultaneously enter
the nearly three-dimensional simulations via a Wii-like setup, where bodily
movements as well as speech are monitored and evaluated. Headsets like
the ones developed by Oculus Rift surround each student with the sounds
and “vivid, three-dimensional images”25 of various moments in a transaction.
Live audio and video connections, perhaps through a wearable computer
like Google Glass,26 allow students to communicate with fellow students and
professors playing roles in the simulation from remote locations.
Within the simulation are scenarios that offer experiences so like what
confronts international business lawyers that graduates of each series in
the program will be ready to join teams that negotiate for multinational
businesses. Their skills will be updated and sharpened in future stints on site
and continuous access from a distance to online corollaries to the simulations.
A great bifurcation in legal education will have been completed,27 with a
second type of training available to anyone in the world for little cost. Offered
24. New York University already has 13 campuses outside the United States, including the one
soon to open in Shanghai. See Ariel Kaminer, N.Y.U.’s Global Leader is Tested by Faculty at Home,
N.Y. Times, Mar. 10, 2013, at MB1.
25. Nick Wingfield, A Matter of Perception, N.Y. Times, Feb. 17, 2013, at B1, B4.
26. This product now being sold by Google is a computer integrated into a pair of eyeglass-like
frames. See Google Glass, http://www.google.com/glass/start/what-it-does/. It should not
surprise us that much of the technology that will be used by law schools will be attached
to the body in some way. Already we lash ourselves to our phones and tether ourselves to
our flash drives. Taking this trend of progressive intimacy between humans and technology,
microchips surgically implanted into each law student may not be far off.
27. David Van Zandt, Dean of Northwestern University Law School, presciently alluded to
this possibility in an address at Southwestern University Law School. See David Van Zandt,
The Evolution of J.D. Programs—Is Non-Traditional Becoming More Traditional?: Keynote Address
Transcript, 38 Sw. L. Rev 607, 610 (2009) (although “legal education remains focused on
the ‘one-size-fits-all’ idea of preparing students who can do any type of legal work,” full-time
salaries of new lawyers showed not one, but two, spikes, the lower salary spike less than
half of the higher one. The fact that the average starting salary for lawyers in private law
practice has fallen by 35 percent in the past four years may more than likely represent a more
substantial dip for some new lawyers than others). See also Rick Schmitt, Price and Perils of JD:
Is Law School Worth It?, 27 Washington Law. 22, 24 (2013).
464 Journal of Legal Education
28. Nearly a decade and a half ago, Stephen M. Johnson surmised that technology would
not substantially change the way law is taught, but predicted that each law school would
develop fully online courses to educate the non-matriculated public. See Stephen M.
Johnson, www.lawschool.edu: Legal Education in the Digital Age, 2000 Wis. L. Rev. 85, 124 (2000).
Law schools that continue to use scholars to educate students on site, however, will probably
find themselves unable to fund the development of such online courses without significantly
increasing tuition for the on-site students. Even if a fee could be charged for the courses,
as Professor Johnson posited thirteen years ago would be possible if necessary, substantial
funds would have be invested long before the fees came in. See id. at 124. Institutions that
have to start from scratch would thereby impoverish initiatives to update the on-site legal
education.
29. Some commercial contracting and negotiation is conducted by non-lawyers. See Thomas D.
Morgan, The Changing Face of Legal Education: Its Impact on What it Means to be a Lawyer, 45 Akron
L. Rev. 811, 818 (2012).
30. Substituting computer-based lectures and exercises for live teachers is popular already
for law school degree programs that target people who cannot afford to suspend their
paying jobs to pursue the law degree. See Joyce D. Saltalamachia, Podcasts, PowerPoint, and
Pedagogy: Using Technology to Teach the Part-Time Student, 53 N.Y.L. Sch. L. Rev. 893 (2008-2009).
The wholly Internet-based law school Concord by the Kaplan company, also seems to be
recruiting students from lower-income populations. See Robert E. Oliphant, Will Internet
Driven Concord University Law School Revolutionize Traditional Law School Teaching?, 27 Wm. Mitchell
L. Rev. 841 (2000). Whether commercial businesses or long-established universities will
run these programs is hard to tell at this point. “Coursera,” a private company run by
academics, is proliferating wholly online university courses around the world by serving as a
clearinghouse and basic facilitator. See Lewin, Students Rush to Web Classes, supra note 9. Thus it
is a kind of hybrid of corporate and academic institutions.
Technology-Based Experiential Learning 465
II. Why More Technology in the Classroom has not Fulfilled the Needs
of Students, Employers, and Clients
No doubt many of our colleagues’ innovations in teaching technology
have enhanced the learning experience. Yet these uses in the classroom of
technology, both display and interactive, adopted since we opened up our
classrooms to the Internet, all function like a Band-Aid on an open wound.
They attempt, in short-lived and uncoordinated increments, to draw our
students’ attention back to the task at hand, without doing away with the
source of the distraction itself.
Even success at drawing focus upon the subject of discussion amounts
to a Pyrrhic victory, because such measures fall well short of delivering
comprehensive and coherent learning experiences. Like the earlier, technology-
free formats where live lectures dominated, PowerPoints and downloads from
the Internet still relegate students to the passive position of an audience.
Writing is disconnected from the lawyers’ final product. Thinking and analysis
expressed orally in class are divorced from the context within which lawyers
operate. Students are left on their own to figure out how to take an active role
in learning.31 They do not piece together fragments on their own and are nearly
incapable of the deep thinking and complete focus required for legal problem-
solving.32
Law schools throughout the United States deliver doses of experiential
learning through clinics; externships and internships; extracurricular
competitions such as moot court, mock trial, and Jessup; and some of the
practice-related classes taught by practitioners in the capacity of adjunct
professor. Students flock to these experiences,33 potential employers demand
more of them,34 and law deans are expanding such offerings.35 In clinics,
however, rarely are the clients the type that provide the bulk of legal fees in the
world of practice and will bring funding into the law school, now as donors or
in the future in the role of the employers of alumni who donate. The learning
experience in the clinics is unpredictable, its quality tied in part to chance and
31. Paul Caron and Rafael Gely argue that the Socratic method presupposes that students will
learn on their own, and will figure out on their own how they should learn. See Caron & Gely,
supra note 10, at 555.
32. A survey taken at Pace Law School found that its electronic blackboard did not conclusively
improve teaching. See Newman, supra note 7, at 213.
33. See Sullivan et al., supra note 1, at 41 (interviews of CUNY’s and NYU’s law students
showed that they thought highly of the clinics and aimed to enter them in their third year
of law school); Engaging Legal Education: Moving Beyond the Status Quo, Legal School Survey
of Student Engagement 15 (2006), http://lssse.iub.edu/2006_Annual_Report/pdf/
LSSSE_2006_Annual_Report.pdf (85 percent of 1Ls surveyed planned to participate or
already had participated in a clinic or fieldwork; 64 percent of 3Ls reported that they were
then participating or had already participated).
34. See Segal, supra note 3.
35. See, e.g., Farmer, supra note 3 (Rutgers is soon to add a “postgraduate, nonprofit law clinic/
firm staffed by recent graduates, under supervision . . . .”).
466 Journal of Legal Education
teachers at Columbia and Yale, by the 1930s, were recasting their focus to
methods from the social sciences.40
What is more, even the case method, requiring semi-active participation
of students at best, is no longer used without extensive supplementing by
lecture, which, of course, reduces students to a passive position. Far from
teaching theory, as asserted by some journalists and lawyers,41 practitioners of
the Socratic method now water down the content of the subject matter and
their teaching standards in an effort to become more concrete and practice-
oriented.42 Lecturing is cookie dough, and question-answer dialogue is the
chocolate chips, periodically studding the proceedings. A right or wrong
answer is sought, clues are given in swift success so that the right answer is
quickly produced, and the exchange ceases. Although this fosters passive
rather than active learning, most of us do it, for a number of reasons.43 As a
century ago, little topical ground can be covered with the Socratic method, and
coherence is a gratification that must be delayed.44 Student evaluations, which
play a role in the advancement of professors’ careers, read more positively when
students are happier, and students are on the whole happier when they are not
challenged or asked to wait to feel competent. With lecture, students are lulled
into a false sense of mastery. Lecture speeds up the voyage of discovery in the
cases and therefore is also easier on the teacher,45 who must spend ever more
time on writing and publishing. The students’ false sense of accomplishment
means fewer questions, fewer office hours, and fewer complaints and angst-
ridden discussions about grades and performance and expectations.46
both common law and civil law countries. Lambert was an astute and informed outsider,
well-positioned to critique the case method. See id. at 8.
40. See Laura Kalman, The Dark Ages, in History of the Yale Law School: The Tercentennial
Lectures 154, 155 (Anthony T. Kronman ed., 2004).
41. See Segal supra note 3, (law schools are known for their long-standing emphasis on theoretical
rather than practical knowledge).
42. The large-scale survey of law students conducted by Bryant Garth, et al., showed that fully
“[f]our in five students said that their coursework substantially emphasized (“quite a bit”
or “very much”) applying theories or concepts to practical problems or new situations.”
Engaging Legal Education: Moving Beyond the Status Quo, supra note 33, at 10.
43. There are, no doubt, law professors who brilliantly deploy some version of the Socratic
method to inculcate a deep understanding of the law and of how to use it, and there are
law students who learn a great deal about the law from nearly any course. But the brilliant
Socratic teachers and the successfully self-teaching students are too much in the minority to
rest upon them the future success of legal education.
44. See Lambert & Wasserman, supra note 39, at 1-3 (“In reality the case method is a very slow
teaching method.”).
45. See id. at 3-4 (“[T]he activity of the teacher using the case method is largely absorbed by the
very great number of hours of work which this method imposes on him.”).
46. In the eyes of several influential law scholars who look down upon the case method, lecture
is not a cheap substitute, but a helpful medium through which to dispense a great deal of
distilled learning. Peter Birks, a renowned authority on restitution, believed that elaborate,
468 Journal of Legal Education
Since I entered law school as a student nearly thirty years ago, the
predominant pedagogy in law schools has changed little,47 mixing the famous
Socratic-style dialogue between teacher and student with lecture. Even the
pioneering CALI computer-based exercises for law classes did not aim to
change the prevailing pedagogy. As early as the 1970s, Roger Park created
exercises for applying the concepts introduced in Civil Procedure. “The
ideal,” he wrote in 2004, “is creation of a classroom-like Socratic dialogue….
[The exercises] cannot reproduce the spontaneity and flexibility of the live
classroom, but they can be a useful supplement.”48
Perhaps the proportion of lecture in that mix rose over that time, as
teachers became subject to the results of student evaluations, which inevitably
discouraged pressure from teachers toward more active learning. Another
pressure toward lecture might be its utility in bringing in references to
disciplines outside the strict confines of the law, to economics, sociology,
and history, for example. Yet another force at work here might be the general
convergence between the common law and civil law systems, as astutely noted
by John Henry Merryman.49 Such a convergence would logically include
pedagogies in law schools. Whatever the reasons, however, the move toward
lecture and away from an interactive dialogue did nothing to inhibit the
freedom and anonymity of law students to drift from the task at hand.50
hierarchical relationships defined each area of the law, and that this overarching structure
gave vital meaning to every area of the law. See, e.g., Peter Birks, Definition and Division: A
Meditation on Institutes 3.13, in The Classifications of Obligations 1 (Peter Birks ed., 1997).
Mirjan Damaska developed an extensive critique of the common law system. In it, he argued
that lectures allow a teacher to reveal the cathedral-like structure of a legal system, which
cannot be seen through the haphazard, detail-oriented approach of the case method. For
his most detailed analysis of common law systems, see Mirjan R. Damaska, The Faces of
Justice and State Authority: A Comparative Approach to the Legal Process (1986).
47. Similar views about the lack of change in legal pedagogy were voiced several years ago. See
Sullivan et al., supra note 1, at 76 (“[T]oday’s trend is to supplement rather than replace the
inherited reliance on [the Socratic method].”); Camille Broussard, Teaching With Technology: Is
the Pedagogical Fulcrum Shifting?, 53 N.Y.L. Sch. L. Rev. 903 (2008-2009); Deborah J. Merritt,
Legal Education in the Age of Cognitive Science and Advanced Classroom Technology, 14 B.U. J. Sci. &
Tech. L. 39, 41 (2008).
48. Roger C. Park & Douglas D. McFarland, Computer-Aided Exercises on Civil
Procedure vi (5th ed. 2004). For the 5th edition of his book Douglas McFarland added
exercises to Roger’s. This statement by Park may embody a more conservative vision of
what the computer-based exercises could do from the one he voiced with Russ Burris in
1978. It was possible that in a computer-run exercise they maintained in that earlier time,
“the student sees actors perform the role of judge, jury, and lawyers. The student can be
required to make decisions during the trial and communicate them to the computer. The
computer could be programmed so that the student’s decision controls the subsequent video
presentation.” Park & Burris, supra note 19, at 23-24.
49. John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal
Systems of Western Europe and Latin America (2d ed. 1985).
50. Another way of describing these twin problems of too much freedom and anonymity by law
students can be found in Rogelio Lasso, From the Paper Chase to the Digital Chase: Technology and
the Challenge of Teaching 21st Century Law Students, 43 Santa Clara L. Rev. 1, 27-28 (2002).
Technology-Based Experiential Learning 469
research papers suffered from the digital distractions of websites and programs
unrelated to litigation.
Many of my colleagues developed computer-based displays of diligently
digested material from their courses to stimulate and guide their students.
PowerPoint grew in popularity, but unfortunately too often morphed into a
crib sheet more than an invitation to delve deeper into analysis. Graphs, photos,
and video clips proliferated on the Internet and were easily downloadable
onto the computer that projects onto the screen at the front of the classroom.
Computer programs with exercises on law subjects could be purchased for
use,54 but with diminishing credits for first-year courses, it was difficult to find
room for these additional materials.55 But nothing in the accessible technology
was more interactive than the live mock client interviews, depositions, and
summary judgment hearings that I staged in class with the help of alumni and
volunteers from the class. Programs and remote controls that allowed students
to vote on questions posed by the teacher enticed students to participate
more actively in their learning,56 though in a semi-passive stance of answering
questions posed by the teacher, and at a price deemed beyond the budget of
our law school.
Distance learning programs are part of this problematic use of technology.
After a period of skepticism, it is catching on now with universities because
their administrations have finally identified a strategy that promises future
earnings in excess of the significant upfront costs of launching and running
these courses.57 But such courses will not improve the quality of legal education
if they simply provide learning tools for students to use in isolation, decreasing
the contact with the teacher from traditional courses. Educators outside the
law school are worried about the high attrition rates of students in purely
online courses.58 These online courses are caught on the horns of a dilemma:
The more you attempt to make these courses more interactive by recreating as
54. See Park & McFarland, supra note 48.
55. Such difficulties, and others, with the exercises, were shared by others. See Geist, supra note
19, at 146-57.
56. Roger Park and Paul Caron have been proponents of this technology. See Caron & Gely, supra
note 10; Roger Park, Reflections on Teaching Evidence With an Audience Response System, 75 Brook. L.
Rev. 1315 (2010).
57. See Thomas L. Friedman, The Professors’ Big Stage, N.Y. Times, Mar. 8, 2013, at A23 (highlighting
this “MOOC revolution”). For a discussion of this skepticism and partial embrace by law
schools of online law courses, see Robert J. Salzer, Juris Doctor.Com: Are Full-Time Internet Law
Schools the Beginning of the End for Traditional Legal Education?, 12 Commlaw Conspectus 10 (2004).
For a discussion of the costs associated with creating and running an online course on health
law nearly a decade ago, see Fentiman, supra note 51, at 61-65.
58. Editorial, The Trouble with Online College, N.Y. Times, Feb. 19, 2013, at A22.
Technology-Based Experiential Learning 471
59. One can infer this dilemma from the writing of an advocate of distance learning courses
in law. See Daniel C. Powell, Five Recommendations to Law Schools Offering Legal Instruction over
the Internet, 11 J. Tech. L. & Pol’y 285, 298 (2006)(“The problem with web-conferencing
is that the software design and the traffic on the common Internet make it too difficult
for instructors and students to both communicate in actual time and to move between
supporting documents. Instructors in a web conference have to teach and move through
documents while processing web chat or audio questions that may arrive after they
were relevant to the discussion. These delays on the common Internet along with those
associated with clicking through links for documents disrupt the presentation of material
and discussion of the subject matter. Similarly, live discussion boards and chat rooms also
provide immediate access to instructors but do not provide a good venue for the entire class
to participate.”). For a similar account, see Ellen S. Podgor, Teaching a Live Synchronous Distance
Learning Course: A Student Focused Approach, 2006 U. Ill. J.L. Tech. & Pol’y 263, 270 (2006).
60. See Daniel J. Morrissey, Saving Legal Education, 56 J. Legal Educ. 254 (2006) (distance
education is offered as the primary way to save law schools from going out of business).
472 Journal of Legal Education
and a dozen other crucial legally significant forms along the way. Teachers
played the roles of the large institutions.
The benefit to our students in the law school was obvious from the start.
Their understanding of international trade transactions went beyond simply
memorizing provisions of the CISG or court cases about carrier liability, the
standard fare provided by casebooks on international business transactions for
the past several decades. Now they would proactively find the opportunities
to transact and shepherd the transaction from beginning to end. They learned
how to move the deal forward in ways that complied with internationally
recognized customs and private institutions that routinely finance and reduce
the risk of the deal going bad. As lawyers, alums of this course would therefore
be able to offer strategic advice to traders to help them avoid legal problems,
rather than only wait to step in to adjudicate already complex and entrenched
problems with the transaction at a time when truly helpful and satisfying
solutions are beyond reach.
With the help of the Dean of the Florida State University College of Law,
Donald Weidner, in 2001 we began to offer the course about once a year, and
through the fall of 2012 have taught it seven times. Dean Weidner signed a
cooperation agreement with the Shanghai Institute of Foreign Trade, which
provided for free use by FSU of the software package developed by Professor
Zhu and committed Professor Zhu’s staff to full support of FSU in teaching
the course and running the simulation from his SCICIB. The agreement also
promised input from me of data on products manufactured in the United
States and U.S. customs regulations, which I provided.
The course begins with a training period, where Professors Zhu Wei,
accompanied in various semesters by his assistants Professor Cheng Jie and
Professor Tan Ying, and I walk our students through the technical terms of
international trade, the process of calculating prices of commodities and of
insurance coverage for them during shipment, of shipping costs, the key terms
for contracts for international sales of goods, and the options afforded by
different kinds of bills of lading and means of payment. An operation guide
summarizes much of this, so that during the simulation students can refer to it
as well as to their notes. The nuts and bolts of trading are put in context with
lectures surveying the history of China’s experience with international trade
and of China’s trade law, and an introduction to the dynamics of negotiation
and of communication within and among trading companies and between
trading companies and other entities in an international supply chain, and of
dispute resolution.
Meanwhile, students form their trading companies with classmates and
create an identity and mission for the companies. For a fee, they register the
name and address of the company and the names and positions held by each
student, and attach a charter that details the range of responsibilities for
operating the company each student expects to cover. They receive start-up
capital and may take out loans at a modest interest rate. We show them where
to find a list of fees, a catalog that serves as the universe of all commodities
Technology-Based Experiential Learning 473
that can be traded, and a posting that includes contact information for the
major players in the United States, including the manufacturers, the retailers,
the bank, the carrier, inland transportation, express mail, and the insurance
company.
After a few weeks of training, the simulation begins, and students log on to
the platform to begin their quest for deals, sales, and profits. Students search
the simulation for leads to demand for imported or exported goods and follow
up on those leads with letters of inquiry by email and Skype sessions. To drum
up interest in the products that they sell, students may create advertisements,
both written and video-based, and websites that catalog their goods. They
sleuth out the contact information for Chinese and Taiwanese trading
companies and email them letters of inquiry along with these ads. They very
quickly develop organizational systems to handle the massive volume of
correspondence.
Once the terms of a deal are agreed upon, the crux of the students’ work lies
in the computer platform, where they fill out contracts and execute them, fill out
applications for various types of financing from the bank, apply for insurance
coverage, book shipping space, and load the goods for export to be shipped
or transport imported goods into their warehouses for domestic resale. Behind
many of these processes lies a teacher, who, playing the role of bank, insurance
company, carrier, and domestic purchaser, receives the application forms and
other documents and scrutinizes them for accuracy and comprehensiveness.
A back-and-forth may ensue between the institution and the student for an
amendment to a document. Amendments cost the students not just time, but
also money, in the form of fees to the institution that demands them. As in the
real world of trade, delays in securing Letters of Credit before the expiration
can nix all the potential profit on the deal.
Students themselves see the progress they make as the simulation moves
along. The costly amendments to documents tend to be more frequent and
lengthier in the beginning of the simulation when students are learning how
to write the documents. As the steps in the transaction come to feel more
routine to the student, the teachers, acting as the bank, the domestic buyer,
and occasionally as trading companies, impose new demands that require
research into the product or more complex calculations. The sums in the bank
accounts of the trading companies serve as another benchmark of progress.
The financial reports that students write in the last several weeks of the course
break out the details of total sales and profits in a way that directly informs the
students about how well they performed.
Supplementing the computer-based platform are weekly live video sessions
that link students and teachers in Shanghai and Tallahassee in real time. All
but one of these are devoted to bringing together the American, Chinese
and Taiwanese students to negotiate terms of their imports and exports. In
the final joint, live session, all students report to their company’s board of
directors about the trading activities for that quarter. The board is a panel of
real traders or lawyers who work in international trade; some join us in our
474 Journal of Legal Education
61. The substantial survey of law students in 2006 headed by Bryant Garth found a strong
connection between the amount of feedback students receive from teachers and the students’
sense of progress: “Students who received prompt feedback from faculty reported greater
gains in their ability to synthesize and apply concepts and ideas.” Engaging Legal Education:
Moving Beyond the Status Quo, supra note 33, at 11.
Technology-Based Experiential Learning 475
a cartel, motivated by the view that the Chinese students’ aggressive and
sophisticated bargaining proved them to be the real competitors of the FSU
students’ companies, and highly organized competitors, at that. Although
that insight was a good one, the cartel fell apart a couple of weeks before the
end of the course. A lack of internal transparency about the distribution of
profits, the belated discovery of a lack of evenhandedness in doling out each
company’s responsibilities, and some free-riding by the self-appointed leaders
of the cartel combined to deal fatal blows to the organization.62 Otherwise,
FSU’s students have avoided alliances, even in weaker forms. The FSU teams
compete with one another for a finite number of deals, and this usually leads
to a high degree of distrust among the teams.
To cope with the pressures of the market, some FSU students seek exclusive
relationships with Chinese trading companies. During the training phase of
the course, my lectures on communication and negotiation within Chinese
business culture aim to equip our students with the means to build such
relationships. Despite the information in these lectures, many FSU students
enter the simulation believing that simply offering to engage in an exclusive
relationship will automatically result in one. They are soon surprised at
how many forms of exclusivity there are and are surprised at how difficult
it is to form, in a free market, a truly exclusive business relationship. Their
disappointment helps them absorb the lesson that exclusive relationships
usually require deep trust built up over long periods of time using cues from
their partners’ culture. Misplaced trust leads to exploitation that saps the
unwitting FSU students of time and money. The severity of such consequences
drives home an appreciation of multiple meanings and intentions behind the
words of their Chinese partners.
Shortening the distance between students and their foreign counterparts
reduced our students’ anonymity and freedom in very helpful ways. They
could not afford to zone out or to multitask during the work of the simulation;
otherwise, opportunities for sales would pass them by and profits would fail
to materialize. Unprofessional behavior occurred in transparent settings, so
that it could quickly be identified and corrected. FSU students benefited
from meaningful interactions with the Chinese professors, who helped them
not just with lectures but by giving personalized answers to our students’
questions by email. FSU students received feedback from additional sources,
namely me, the American professor, and entrepreneurs and lawyers who work
in international trade. This multifaceted feedback broadened the students’
experience of the skills that international commodities traders need. During
dozens of hours of collaboration, Chinese students forged bonds with the
FSU students that endured beyond the course. Many FSU students had
epiphanies while interacting with the Chinese students, because they were
able to experience the sophistication and intelligence of these counterparts
and thereby gain an appreciation of them and use them as models for their
62. See Karma Dickens, “IndraNet Trading Company Operational Report Summary,” (Dec.
13, 2002) (on file with author).
476 Journal of Legal Education
own work. Other epiphanies occurred while daily seeking strategies to help
overcome problems with the language barrier and with the difference in time
zones.
Zhu Wei’s philosophy about education, developed over nearly thirty years,
infuses the course. As he sees it, students will not be prepared for work in
international business unless they have practiced working on the transactions
themselves. Merely memorizing relevant terms and a list of steps in a
transaction do not go far enough.63 He developed this conviction out of his
own experience. While a student at the Shanghai Institute of Foreign Trade
(SIFT), he worked for six months as an intern in a government-run trading
company that specialized in the export of down garments to the U.S. and
Canada. China’s vast national bureaucracy at the time included most of the
trading companies throughout the country, and therefore these companies
were not in a position to refuse these assignments, which were made for all
students in China’s several foreign trade universities. Professor Zhu learned a
great deal that was essential to his later work for about three years as a trader for
the Shanghai Stationery and Sporting Goods Import & Export Corporation
and an additional two years as a manager for CITIC Tech Shanghai in charge
of importing telecommunication equipment.64
As China’s trading companies were spun off from the government and
privatized, the internships dried up, and graduates of China’s foreign trade
universities embarked upon their careers needing a great deal more training
from their superiors. This is why, soon after he joined the faculty at SIFT,
he founded SCICIB, whose staff of a dozen or so young, energetic teachers
creates and teaches simulation-based courses in international trade. He sought
and obtained funding from the Shanghai Municipal Council to develop
several software packages that contain extensive simulations, one of a global
supply chain that reaches between countries. Several hundred students have
taken the ITS course since 1994.
At first, he developed a simulation that inserted a Chinese student into a
Chinese trading company and took him or her through the steps of canned
international trade transactions, with the foreign buyer played by the computer.
To date, about 16,000 people have completed this course. Then he created an
English version of that course in which a foreigner does the work of an intern
in a Chinese trading company. About 1,000 French and German students have
traveled to SCICIB’s headquarters in western Shanghai to take this course,65
an exodus that proves that the approach of this simulation has made SIFT
attractive to European students looking for places to study in China.
63. Interview with Zhu Wei, Professor, Shanghai Inst. of Foreign Trade (SIFT), in
Tallahassee, Fla. (Sept. 20, 2012).
64. See email from Zhu Wei, Professor, Shanghai Inst. of Foreign Trade (SIFT), to author
(Mar. 3, 2013) (on file with author, 7:07PM).
65. See email from Zhu Wei, Professor, Shanghai Inst. of Foreign Trade (SIFT), to author
(Mar. 3, 2013) (on file with author, 7:07PM).
Technology-Based Experiential Learning 477
of what can be done about it. Alums routinely report to me that they learned
more in this class than in any other.
69. See Galanter, supra note 23; Segal, supra note 3 (law firms in the United States have seen “a
historic decline in hiring.”). For several case studies that show a globalization of services.
See Anupam Chander, Trade 2.0, 34 Yale J. Int’l L. 281 (2009). Some law educators, about
six years ago, saw it quite differently, concluding that “American society has become more
dependent on the legal profession for its functioning than ever before.” See Sullivan et
al., supra note 1, at 1. As the book was written on the eve of the global economic downturn,
when applications to law schools were still increasing, perhaps the authors’ appreciation of
the hard work of law professors allowed them to assume that their efforts were resulting in
well-trained lawyers and a broad swath of society willing to pay top dollar for their services.
A more pessimistic view was voiced just three years later. See David Barnhizer, Redesigning the
American Law School, 2010 Mich. St. L. Rev. 249 (2010). Barnhizer asserts that “logic suggests
strongly that there are too many lawyers in the United States,” id. at 283, and predicts
“increasing pressures from non-traditional competitive sources without traditional law
degrees to have a share in the business that has been limited to licensed lawyers.” Id. at 256.
Technology-Based Experiential Learning 479
70. For a lengthy development of this insight, see Damaska, supra note 46.