CommentaryHow do you ask a person to be the last person to die for a mistake?
That is the question American law school deans and their supervisors must consider as the fall term approaches. I pose this question to advocate for law schools to teach fully online in fall 2020 because a law school might take a conservative approach in the short term without serious jeopardy to their academic mission. Other disciplines operate under different parameters—I do not presume to advise a chemistry department with labs or a music department with recital halls.
Administrators should strategically reduce overall campus population density by teaching law online because law adapts well to distance learning, as explained below. Lowering student density on campus reduces the risk to our overall academic communities. A maintenance crew cleaning a needed chemistry lab is not exposed to the risk of infection from law school students.
Law school management must prepare to answer this question if they open classes in-person, despite reservations about safety, or the efficacy of social distancing measures. Harvard Law School and UC Berkeley Law School led with decisions to cancel in-person instruction for fall 2020. Other schools have taken notice and are in various stages of deciding the way forward, including hybrid learning approaches that mix in-person and online instruction, also designed to minimize risk, as an alternative to the risk mitigation strategy advocated for here. UC Irvine just announced a hybrid approach—all online for upper-division, with a choice given to incoming 1L students.
For 1L courses, a large classroom with active discussion is common—but not strictly necessary. Conventional wisdom suggests that a failure to hold in-person classes will result in a dramatic decline in first-year law school enrollment and, thus, tuition revenue. Financial ruin follows because law students will only pay for the in-person Socratic experience. Economics drives the decision to take the risk to open with in-person classes. The brunt of the risk is borne not only by students but also by faculty and staff—groups situated below the pay grade of the administrators sending them into harm’s way.
Suppose you, as the ultimate decisionmaker, are asked this question by a grieving family who lost a father, a mother, a son, or a daughter just after you closed the law campus when, after a few weeks, your precautionary measures failed to control the virus. Now, you point to your liability waivers and warning signage sprinkled throughout your campus. You mumble something about CDC guidelines, best practices, decisions made on available information at the time, etc. And, of course, you are very sorry. Maybe you have no legal liability.
Yet, in the back of your mind, you never shake the feeling that your decision was guided more by economics than by safety. The calculus of decision to re-open with in-person classes troubles you long after the crisis passes, whether you are a member of a board of trustees, a president, a provost, or a law dean—and rightfully so.
In law school, students learn that these kinds of tradeoffs appear in many areas of legal practice. They formed the core of almost every fraud I saw during my time on Wall Street. Bad decisions do not just involve the “bad man” identified by Oliver Wendell Holmes – good people do not speak up, they accept incomplete disclosure, and they chose to ignore problems which appear obvious in hindsight – a product of decisions made when all you have are difficult choices. All of us have been tempted to rationalize the indefensible. It is a form of magical thinking embraced by the weak who could choose better and, out of necessity, by the powerless. Fear clouds vision.
Eventually, when light shines on what occurred during your stewardship, however, the lethal effect of the decision becomes manifest. This is particularly so when the calculus of decision compared lives lost against the economic gain. Law students learn about a disastrous choice made in the design of the Ford Pinto, which exposed consumers to an increased risk of death to save money.
Those without conscience will sleep soundly. But for law school administrators, the decision will never sit well. They faced a moral choice and now doubt whether they adequately met the challenge. The absence of legal liability is almost beside the point.
This burden exceeds any financial challenge at a law school. I would rather reorganize a law school from the moral high ground than suffer these doubts. While sometimes there are only bad choices, some choices are better than others.
There is a better choice that law schools may follow—one that highlights both the new realities of legal practice and the best traditions of the legal profession. In this crisis, the legal academy has a choice to operate in a safer manner and we should seize that opportunity—to avoid the need to even engage in the types of calculations for a law school that landed Ford Motor Company in such trouble.
Explain that the COVID-19 crisis has forever altered the practice of law. The Supreme Court has conducted oral arguments by teleconference, parties now negotiate merger agreements on ZOOM, and law firms have re-negotiated leases to relinquish space in anticipation of increased remote work. With the cat out of the bag, law schools can emerge as leaders in teaching students how to adapt to a new professional environment.
Law schools can use online learning as one tool, among others, to prepare students for the practice of law in the 21st century. Post-crisis, innovative law schools will retain some distance learning courses to facilitate this instruction. Law students must master modern conferencing technology and develop increased awareness about problems of security, confidentiality, and client protection. Moreover, distance learning teaches the etiquette of appropriate online conduct. In sum, distance learning now contributes to future professional success. It is not a question of preparing for change. Change is here.
As a matter of our professional code, it is misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Build upon this idea of professionalism. Use the crisis to demonstrate the benefits of doing the right thing even in difficult, uncomfortable, and financially challenging conditions. Make it clear that your school will not engage in a bait and switch by promising in-person classes that may need to be cut short if circumstances worsen. Instead, emphasize your concern for safety and intense focus on effective pedagogy in life-threatening circumstances.
Tell prospective students that, for fall 2020, your law school is teaching entirely online. Introduce students to the concept of a “fiduciary duty” and explain how, as their educators, you are exercising particular caution and prudence because you feel a responsibility for them that takes priority over mere financial considerations.
Explain that you will move heaven and earth to provide a great first-year experience–your aim is to equal or exceed the in-person attention given before this health crisis. Tell students to save their money, and do not move near campus until in-person classes resume. Assure students that you have them fully covered with remote instruction for the fall.
Reach out to prospective students for whom distance learning might be a benefit—and offer to work with special needs. Encourage submission of personal statements describing circumstances that might benefit from distance learning—and take those into account in admissions and scholarship decisions.
Tell them that your law school is doing all these things because you want them to come this fall—and not postpone their dreams because of the pandemic. Tell them your law school is there to partner with them by keeping their lives protected–and their education on pace–despite the challenges. Be a responsible partner worthy of trust. Tell them that you do not ask them to sign self-serving waivers because they are not needed when you do the right thing by placing a priority on safety. The students will learn about the dubious value of coerced signatures in due course. (The equities of using waivers and coercing signatures are complex. Even if enforceable against a student, to the extent the student is more likely asymptomatic than the general population, the actual victim may be a family member, neighbor or other third party. The true burden is not even allocated between the nominal parties to the transaction. A law school opening that is not strictly necessary, but made for financial gain, is hard to reconcile, in justice, with placing a burden on non-consenting parties. It is a classic case of externality.)
Make your institution a role model by teaching this most important lesson about how adults confront adversity. And they will be prouder alumni of your school for how their institution confronted the crisis of a generation.
Law schools have a special obligation to lead from a high standard of ethics, compassion, and judgment. A law school has particular benefits as a professional school subject to ethical standards and a changing practice environment because it can advertise this approach to the crisis—one that is woven into the very fabric of legal education and the aspirational standards of the profession.
There is a bet I would cheerfully embrace: students will come to law school for distance learning if the school makes it clear it has its students’ back. Students will recognize this approach for what it is: protective of health, entirely forthright, and pedagogically sound. Students will see alternative approaches in a less favorable light. This suggests a way forward for law schools that turns a crisis into a teaching moment for future lawyers, as well as an advantage.
For more on COVID-19, see our special coverage.
William H. Widen is a Professor at the University of Miami School of Law in Coral Gables, Florida.
Suggested citation: William H. Widen, The Only Question for Law School Re-openings, JURIST – Academic Commentary, June 29, 2020, https://www.jurist.org/commentary/2020/06/william-widen-law-schools-reopening.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.
