What’s Coming in 2011…?

Malcolm Gladwell famously explored the “Tipping Point” in his 2000 book. This is the moment when an innovation, or pilot, or fad hits the “boiling point,” takes hold, goes viral and/or enters the mainstream. When I was growing up, I found these moments were defined by how we listened to music – the move away from 8-track tapes and vinyl to cassette tapes, and then from cassettes to CDs, from Walkmans to iPods, and so forth.  And, of course, sometimes the old becomes new again (hence the return to the cool of vinyl).  In each case, there was a moment at the beginning when the mainstream critics said “that will never catch on” and a moment at the end when the mainstream critics proclaimed “we all knew this was a game changer.” The progress of innovation is rarely steady or clear and is littered with important failure (does anyone remember Betamax or AOL?). It does not take a visionary to predict that electric and fuel cell cars will one day displace cars which run on fossil fuel, but that is not to say we know when and for what reason the tipping point will be reached. Anyone who has seen the excellent documentary, Who Killed the Electric Car, will know for every one step forward there may be two steps back (though, tellingly, that same director is now at work on The Revenge of the Electric Car).

So, with that backdrop in mind, what tipping points in legal education are we likely to reach in 2011?

First, I think 2011 may be the tipping point, if not for the digital law school, at least for the electronic casebook. Many faculty members at Osgoode (and elsewhere) have been using only electronic course materials for years, though most still rely on electronic materials to supplement their print coursebooks, or as an ancillary set of academic resources. But as the numbers of students grow who are used to e-books, and doing most of their reading on screens of one kind or another, the appetite and need for print materials is waning. I saw this occur with exam-writing ten years ago. The first year we introduced typing exams rather than hand-writing them, it was as an accommodation for someone who could show they were disadvantaged by the requirement to write with a pen. Within a few years, a critical mass were typing exams, and now only a small handful still write by hand (mostly mature students who are simply used to it or those who could show they were disadvantaged by the requirement to type).

Technology is not the only tipping point we are likely to cross in 2011. We will also, I think, move more deeply and more broadly to the pedagogy of experiential learning. Ever since the Carnegie Foundation Report (which itself was reflecting a trend rather than inspiring one), legal education has been veering more to joining theory to practice. This has special resonance for Osgoode, which for much of its first century was defined by the tension between legal education as learning a profession and legal education as an exploration of legal ideas in social, political and economic context. The question for many schools is whether a law school can excel at both, and more importantly, have each aspect of legal education reinforce and enrich the other. I think the answer is emphatically “yes,” and 2011 likely will be defined by new curricular initiatives which pursue this goal.

Finally, I think the justice system is itself nearing a tipping point. The classic narrative of the common law justice system has involved the impartial resolution of adversarial disputes through government funded courts presided over by independent and generalist judges. With major reform initiatives planned or underway in Ontario from the Attorney General, from the Courts, Tribunals and Regulators, from the Law Society, Law Commission, Law Foundation, and from public interest organizations such as PBLO and CLEO, the exceptions to the justice system are becoming the norm (hence, ADR as a term of art is increasingly becoming an oxymoron).

Dispute resolution increasingly is and will in the future take place outside of courtrooms, through diversion programs to mediation and arbitration, collaborative law approaches, on-line public legal education and advice clinics, administrative adjudication and greater prevention and avoidance through quasi-independent agencies in fields such as consumer protection. The role of lawyers in this changing environment is also under stress, whether through the rise of paralegals, outsourcing and unbundled legal services. The growing variation of dispute resolution takes much of the advocacy and creative lawyering outside of courtrooms, and creates new settings where talented lawyers may be more in demand than ever. In many cases, these reforms may take dispute resolution outside of public interest settings altogether, and raise the compelling question of what precisely the public interest in private dispute resolution is and ought to be.

Mediation may meet the needs of many people with problems to solve, but does not give rise to an accessible jurisprudence. This raises the question of how much of legal education should be based on appellate case law and academic commentaries on that case law, and how much legal education should be generated by, and tailored to a broader view of problem-solving through legal principles. Whatever the ultimate direction of the justice system, the new year promises to be eventful for legal education.

I hope all of you find all the best kind of adventures in 2011.