JuRis DOCTOR.CoM: ARE FULL-TIME INTERNET SCHOOLS THE BEGINNING OF THE END FOR TRADITIONAL ?

Robert J. Salzer

I. INTRODUCTION home education via the Internet has spread like wild fire. 2 With literally hundreds of online col- of our Constitution and the If only the Framers leges teaching similar courses over the Internet, countless lawyers, judges and legislators who have one might think that offering graduate and doc- shaped its meaning over the past two centuries torate level courses would naturally progress from could see us now. Would any of them have be- Magellan's humble beginnings.3 But the pursuit lieved that one could have instantaneous access to of a juris degree is unlike other educa- virtually every documented statute, case or legal tional ventures, and the standards for admission opinion ever drafted? It is doubtful. With the In- and curriculum are locked into a paradigm, in ternet's seemingly endless potential, it was only a large part because of the American Bar Associa- matter of time before someone harnessed the ("ABA"). 4 technology to sneak under the iron gates of tradi- tion tional legal education. What once may have Formed in 1878, the ABA almost immediately fo- seemed like a fleeting and preposterous idea has cused their attention on legal education and by the traditionalists worried-and it should. 1921, had circulated its first Standards for Legal 5 "Distance learning" is defined as "the process of Education. With a regulated system firmly estab- extending learning, or delivering instructional re- lished, the ABA began lobbying states to draft stat- source-sharing opportunities, to locations away utes that would require their individual law 6 from a classroom, building or site, to another schools to conform to the ABA's model. The classroom, building or site by using video, audio, ABA also convinced many states to disallow legal computer, multimedia communications, or some practice by those who were not members of the 7 combination of these with other traditional deliv- bar association. Consequently, their control ex- ery methods."' Since Magellan.edu, the nation's tended over all aspects of legal education and first online undergraduate university, began offer- practice." While some states did not prescribe to ing distance learning classes in 1994, the idea of the ABA's requirements, most did, in effect per-

1 INSTRUCTIONAL TECINOLOGV COUNCIL, ITC's DEFINI- B. Shepherd & William G. Shepherd, Scholarly Restraints?ABA TION OF DISTANCE EDUCATION, at http://www.itcnetwork.org/ Accreditation and Legal Education, 19 CARDoZo L.R. 2094, 2094- definition.htln (last visited Mar. 16, 2003). 2100 (1998). 2 Although there have been online classes offered in 5 , STANDARDS FOR APPROVAL some capacity since 1981, Magellan is considered to be the OF LAW SCHOOLS AND INTERPRETATIONS, available at http:// first truly online university. See Technology Briefs, THE BUSI- www.abanet.org/legaled/standards/foreword.html (last vis- NESS MONTHLY, at http://www.bizmonthly.com/7_2001_fo- ited Oct. 15, 2003) [hereinafter ABA FOREWORD]. cus/21.html (July 2001). 6 George C. Leef, Why Law School Costs So Much, at http:/ -3 Heath Row, Do These Online Schools Make the Grade?, at /www.mises.org/fullarticle.asp?control= 1113 (last visited http://www.fastcompany.com/online/24/onlinesch.html Dec. 23, 2002) [hereinafter Leef]. (May 1999). 4 The ABA has been recognized since 1952 by the U.S. 7 Id. Department of Education as the governing body for accredi- 8 Shepherd & Shepherd, supra note 4 (stating the ABA tation of American Law Schools. They have come tinder at- has "exerted monopoly power not only over the market for tack in recent years for having too much control over not legal training, but also over three related markets: the market only the accreditation process, but also who law schools will for the hiring of law faculty, the market for legal services, and hire and how their curriculum is to be designed. See George each university's internal market for funding"). COMMLAW CONSPECTUS [Vol. 12 petuating the ° organization's stranglehold on legal will be forced to bend its rigid approach towards policies. ' accrediting those institutions it considers to be in- In 2001, a serious blow was dealt to the ABA's ferior and lacking in "proper training."'' "monopoly" over legal education. In v. American Bar Association, the U.S. District Court II. THE RAPID DEVELOPMENT OF for the District of Columbia determined that the INTERNET EDUCATION ABA had "restrained competition by fixing com- pensation levels of professional personnel at ABA- Although generally considered a relatively new approved schools and by acting in ways to limit invention, the Internet has been used in some ca- competition from non-ABA-approved schools."' 0 pacity for over thirty years, and e-mail was used as Despite this decision, little has changed. How- early as 1971.12 However, it was not until the ever, a new development in Internet education 1980s and 1990s that the Internet spread to the stands to pose a serious threat to both the ABA masses and gave a forum to the first Internet edu- and those who believe that the only way to earn a cational network and online research programs.' 3 legitimate law degree is through traditional legal The expansion of education through the In- education. ternet has increased dramatically over the past few On November 21, 2002, the Concord School of years.' 4 By 1998 there were over 1.3 million stu- Law graduated the country's first fourteen In- dents enrolled in distance learning programs, up ternet law school students, marking the first mon- 78% from 1995.15 The number of enrollees is pro- umental step towards what they hope will become jected to continue rising dramatically in the up- a revolution in legal education. This Comment coming years.16 Although the U.S. Department of will examine both the Internet and its immeasura- Education has not tracked the exact increase in ble impact on education of all types, especially le- the Internet student population, the financial gal education. The following section will explore numbers alone are evidence of the tremendous development of Internet education. Section III growth in the industry. In fact, distance educa- will scrutinize Internet law schools, including the tion generated $1.2 billion in 199917 and is pro- Concord Law School, and what effect these jected to be between $7 and 10 billion by 2003.18 schools will have on legal education as a whole. These figures indicate that an entirely new pop- Section IV will outline the history of the ABA and ulation of students are utilizing distance learn- how the Internet age is shaping its future. Finally, ing.19 The Internet "is allowing for the creation of this Comment will propose that although Internet learning communities that defy the constraints of legal education will not drastically affect most of time and distance as it provides access to knowl- the traditional law schools in the United States, it edge that was once difficult to obtain."20 Conve- will impact the ABA enough that the Association nience is not the only attractive feature of dis-

9 Leef, supra note 6. be affected will be corporate information technology training 10 United States v. Am. Bar Ass'n, 135 F. Supp. 2d 28, 29 and executive business education. Major increases in pro- (D. D.C. 2001). ductivity will need to wait for "more comprehensive innova- 11 Julia Scheeres, Virtual Degrees Virtually Tough, WIRED tions in the sector," and therefore the impact of the Internet NEWS, at http://www.wired.com/news/school/0,1383,54734, on education "in the near term is likely to remain rather 00.html (Aug. 28, 2002) [hereinafter Scheeres]. modest." See Austan Goolsbee, Education and the Internet, at 12 The Internet was developed in 1969 by the U.S. De- http://gsbwww.uchicago.edu/fac/austan.goolsbee/ fense Advanced Research Project Agency for military and re- research/educ.pdf (Sept. 2000) [hereinafter Goolsbee]. search purposes. Linda Harasim provides a table outlining 15 Id. at 6. the history of networks and online education, beginning with 16 Laura Carr, College Off-Campus, THE INDUSTRY STAN- the invention of the telegraph in 1861, and ending with the DARD, at http://www.thestandard.com/article/0,1902,18444, first large scale online education field trials in 1996. See 00.html (Sept. 13, 2000). Linda Harasim, Shift Happens: Online Education as a New Para- 17 Id. digm in Learning, VIRTUAL U., at http://virtual-u.cs.sfti.ca/ vuweb.new/papers/harasim-ihe novOO.pdf (last visited Feb. 18 See AMERICAN FEDERATION OF TEACHERS, AFT REPORT 2, 2003) [hereinafter Harasim]. RAISES CONCERNS OVER DISTANCE EDUCATION, at http://www. 13 Id. at 8. aft.org/publications/insideaft/previous/2001/090301.html 14 This growth in Internet education may taper off (last visited Nov. 3, 2003). shortly, as both supply and demand will likely have "signifi- 19 Elizabeth D. Kaiser, The Legal Implications of Online Uni- cant effects on the productivity of the educational system versities, 8 RICH. J.L. & TECH. 1, 19 (2002). only in limited areas" in the near term. Those most likely to 20 Id. 20041 Internet Law Schools tance education; generally the cost is far more connection.27 manageable in comparison to most colleges or 2 universities. ' Internet education has a very low III. BEYOND A BACHELOR'S DEGREE: marginal cost and providers can potentially reach ONLINE GRADUATE SCHOOL large audiences at a nominal price.22 Although online schools and distance learning are not likely Recent history has demonstrated that online to replace traditional universities entirely, these educational programs fail when they are haphaz- attributes may force traditional universities to be ardly thrown together. Carefully constructed on- ''more innovative and more attentive to the needs line undergraduate schools have been immensely ' 23 of the labor market." successful, while those that tried to jump on the However, such positive attributes are often "bandwagon" without properly preparing a for- 28 counterbalanced by certain negative aspects. The mat have failed. With the proven success of on- most glaring disadvantage of distance learning, line bachelors programs, it was only natural that putting aside the fact that one must possess the online graduate schools would follow. There are technological know-how and machinery to com- currently over 3,500 colleges and universities that mit to an online program, is the fact that partici- offer online courses, and many of those courses 29 pants lack any social interaction with other stu- are at a graduate level. dents or with professors. 24 Many feel interaction Although ('ID") degrees are often with other students that occurs in a traditional considered comparable to Masters of Business Ad- learning environment facilitates learning, in part, ministration ("MBA") in terms of course load and 30 through developing social skills. 25 Opponents be- difficulty, the popularity of online MBA pro- lieve if a school chooses to simply post reading as- grams has grown at a much faster rate than online 3 1 signments online and does nothing to initiate en- JD programs. While many claim this is explained hanced forms of learning, students will retain by the comparative higher quality of online MBA much less than they would in a traditional class- programs, some still think that like their legal 3 2 room setting.2 6 Additional problems include iden- counterparts, the education is second-rate. Pro- ponents of online MBA programs do not feel they tity verification and cheating, since it is difficult to 3 monitor who is on the other end of an Internet are in competition with traditional universities,

21 See William M. Bulkeley, Internet University is Accredited learning market continues to grow, but much of the momen- have gone belly-up, to Grant College Degrees, HAPPY CAREER, at http://www.happy tum has slowed. Many e-learning startups career.com/html/internet university is accredite.asp (last realizing the enormous costs of launching efficacious courses visited Mar. 17, 2003) (indicating that lower costs, specifically online. 'You can't build out the offerings of a great university in the instance of the University of Phoenix, which isthe na- overnight.'"). 29 Elisa Batista, Online Schools Mean Business, WIRED NEWS, tion's largest private university due in large part to their ex- tensive online class program, are attributable to the fact that at http://www.wired.com/news/business/0,1367,38262,00. core courses are taught by part-time professors that are free- html (Aug. 18, 2000) [hereinafter Batista]. TRANSFORMING PRACTICES, at lancing from other universities simply to earn extra money. 30 Derek Haskew, Mail Bag, This is far more economical for the online schools because http://www.transformingpractices.com/lc/lc8mailbag.html they are not straddled with having to pay multiple professors (last visited Mar. 17, 2003). Col- full-time salaries.). 31 Press Release, University of Maryland University 22 Goolsbee, supra note 14, at 3. lege, For Profits Start to Profit, at http://info.umuc.edu/ 23 Anna Kuchment, Dollars and Degrees, NEWSWEEK INT'L, mde/newsarc.htm (Jan. 2001). an Internet Jan. 13, 2003, at B6 (quoting Jamil Salmi). 32 See Scheeres, supra note 11, at 1. "[W] hile 24 Warren Rosser, Disadvantages of Online Education, PER- education may be alluring for wage slaves, stay-at-honie par- SONAL WEB PROJECT, at http://130.217.159.224/~wbrl/ ents, rural folks and agoraphobes, online schools still battle 2002%20files/disadvantage.html (last visited Mar. 17, 2003). the nagging perception that learning by modem is somehow 25 See id. ("[B]eing online means students don't meet inferior to learning in a classroom." Id. Virtual educations other people face to face, and all the social interaction takes are considered second-rate "because the people making hir- place through words typed onto a screen, and occasionally ing decisions all went to traditional schools and have misgiv- pictures which are 'posted' online. This is a disadvantage ings about online degrees, although there is no objective evi- which is difficult to isolate from any online learning environ- dence to support that." Id. ment."). '3 See Batista, supra note 29, at 2 ("'We do not feel we 26 Goolsbee, supra note 14, at 4. compete with the university,' said Donald Norman, author, 27 Id. Professor Emeritus of psychology from the University of Cali- 28 See Kendra Mayfield, Distance Learning Yet to Hit Home, fornia in San Diego, and President of Unext learning sys- WIRED NEWS, at http://www.wired.com/news/school/ tems. 'We offer courses to people that can't afford to go to 0,1383,45855,00.html (Sept. 5, 2001) ("Today, the distance universities because there are no universities nearby or, more COMMLAW CONSPECTUS [Vol. 12 and many seem convinced that it is becoming ir- prevent qualified students from pursuing online relevant where one received their MBA. They ar- degrees that, on paper, will be comparable to any 44 gue that there is no real difference between the full-time, top-tier MBA program. MBA degrees offered by schools online and those Duke University is not the only top-caliber 3 4 offered in traditional classroom settings. school to implement online programs. Stanford Part of the explanation for the success of online University offers an online engineering degree MBA programs is provided by Duke University's and Columbia University offers online graduate Fuqua School of Business, as its distance educa- degrees in numerous areas of study. Both the tion program has given tremendous credibility to University of Pennsylvania's Wharton School of online MBA programs. 35 Already one of the most Business and the University of London offer on- 36 prestigious MBA programs in the country, Duke line MBA programs. 45 The success of online busi- created the Fuqua Global Executive program in ness, engineering and other graduate schools 1996. 3 7 Although widely considered the most begs the question of why legal education is so far 38 prominent of the online programs, there are ca- behind the times. While there remains a signifi- veats that make the Fuqua School of Business un- cant gap between schools such as Fuqua School of like most other online programs. First, Fuqua's Business and the primitive online legal courses application process differs from typical online that have begun to surface, that gap is surely clos- MBA programs. For example, an applicant must ing. have at least ten years of professional experience and must be currently employed in a managerial position.39 Second, the hefty cost for the program IV. INTERNET LAW SCHOOLS eliminates it as a cheaper alternative to conven- A. Concord Law School tional MBA programs-the nineteen-month cur- riculum carries a price tag of $95,000.40 Third, the The history of Internet law schools begins and program includes a unique two-week residential ends with the Concord Law School ("Concord"), period where each student is required to attend as it is the first, and currently the only, institution orientation, classroom discussions, and partici- in the United States offering a JD degree entirely 41 pate in team projects on the Duke campus. This online. 4 6 Concord began operations in 1998 and residency is followed by ten to twelve weeks of "vir- is a division of Kaplan, Inc., a wholly owned sub- 47 tual course work."42 Over 700 students are cur- sidiary of the Washington Post Company. rently enrolled in Duke's Global Executive pro- Kaplan, Inc. was founded in 193848 to assist stu- 43 gram. This is a good indication that a large price dents in their preparation for the Scholastic Apti- tag and strict application requirements do not tude Test, and it has grown into one of the coun- important, they are too busy."'). formation technologies, and proficiency in both written and 34 Del Jones, More Students Get MBA 's Online, USA TODAY, spoken English). Feb. 11, 2003, at B3. 40 Langford, supra note 38. 35 Jeff Girion, E-Learning and the MBA: Changingthe Status 41 Global Executive, supra note 37, at 8. Quo of Business Education, E-LEARNING MAGAZINE, available at 42 Id. http://www.Itimagazine.com/ltimagazine/article/ar- 43 Del Jones, More Students Get MBAs Online, USA TODAY, ticleDetail.jsp?id=3935 Uune 1, 2001). at http://www.usatoday.com/money/perfi/college/2003-02- 36 Duke was ranked #11 in the country prior to the crea- 10-mba x.htm (last modified Feb. 10, 2003). tion of Fuqua. See John A. Byrne & David Leonhardt, The 44 Global Executive, supra note 37, at 2. Best B-Schools, BUSINESS WEEK, Oct. 21, 1996, at Al. 45 DEGREES OF SUCCESS, NEW PROGRAMS, at http:// 37 DUKE UNIVERSITY, THE FUQUA SCHOOL OF BUSINESS, www.degreeofsuccess.com/new.htm (last visited Mar. 17, THE DuKE MBA GLOBAL EXECUTIVE BROCHURE, available at 2003); Michael Cox, How Our Unique, No-nonsense, Real-world, http://www.fuqua.duke.edu/admin/extaff/news/publica- Online MBA, Masters, Ph.D., & DBA Programs Can Help You Get tions/pdf/gemba.pdf (last visited Mar. 19, 2003) [hereinaf- Extraordinary Results in Today's Ultra-Competitive Global Market- ter Global Executive]. place, at http://www.rushmore.edu (last visited Oct. 15, 38 Kimberly Langford, Do Online Degrees Measure Up?, at 2003). http://www.thedistancelearningexpo.com/articles.htm (last 46 CONCORD LAW SCHOOL, SCHOOL INFORMATION, availa- visited Mar. 17, 2003) [hereinafter Langford]. bleat http://www.concordlawschool.com (last visited Mar. 17, 39 See DUKE UNIVERSITY, THE FUQUA SCHOOL OF BUSINESS, 2003). EXECUTIVE MBA ADMISSIONS CRITERIA, available at http:// 47 id. www.fuqua.duke.edu/admin/executive/admissions/admer- 48 Windy Choi, Preparingfor the SAT's, URBAN JOURNALISM iteria.html (last visited Oct 15, 2003) (other admissions crite- WORKSHOP REPORTER, at http://www.has.vcu.edu/mac/ ria include: achievement in quantitative areas, including in- ujw02/satprep.htm (last visited Mar. 17, 2003). 2004] Internet Law Schools

try's largest providers of educational assistance through online video lectures.55 Despite the lec- and training. 49 The company has expanded turers' lack of interaction with students, they have greatly over the past decade, and has acquired essentially molded the curriculum and course large information technology and publishing structure at Concord. 5 companies. 1 The third level consists of professors who are typically considered adjunct professors in tradi- tional systems. Among other things, these faculty B. Concord's Faculty members determine grades and answer student questions online. 56 Though not as widely known Despite having virtual classrooms, Concord's as some of the visiting lecturers, all professors campus is located in , taking its place have at least a J.D. degree and most are exper- among over thirty other based law 57 ienced law professors. schools. 5 1 However, many students enrolled in Concord will only see the campus a handful of 52 times in their four-year tenure. The same may or C. Concord's Curriculum may not be said of the faculty members. Concord's deans and directors, led by founder The basic JD program at Concord is on a part- Jack R. Goetz, are all graduates of esteemed law time basis and therefore requires four years of schools from across the country and many came study to complete the ninety-two credits necessary to Concord with experience as educational ad- for graduation. 5 8 The academic year at Concord is ministrators at the graduate level. 53 Similar to fifty-one consecutive weeks, with roughly fifteen to 59 other law schools, some of the deans and direc- eighteen study hours per week. tors take on lecturing duties in addition to their Concord's course requirements are no differ- administrative positions. These administrators ent from most traditional law schools in the are also responsible for supervising the "profes- United States. First year students are required to 54 sors" performances. take courses on Contracts, Torts, Criminal Law Concord's visiting and supplementary lecturers and Legal Writing & Test Taking. 60 The manner include many nationally acclaimed legal scholars in which classes are taken, on the other hand, is from across the country. These lecturers have no anything but traditional. Concord does utilize personal contact with the students, but rather de- conventional casebooks, but lectures are offered sign core courses that are delivered to students exclusively online. 61 Students may access lectures,

49 Kaplan, Inc. has locations throughout the United and was recently awarded the Distinguished Recognition States, and it continues to provide preparation courses for 35 Award by the Distance Education and Training Counsel for different standardized tests and entrance exams. In addition, outstanding contributions in the advancement of distance Kaplan, Inc. provides after-school education centers, pro- education. Id. grams for students from K-12th grades, secondary education 54 Robert Oliphant, What About a Fifih Law School for Min- classes, post-secondary classes and various certification pro- nesota?, BENCH & BAR OF MINNESOTA, at http:// grams. Kaplan has served over three million students since www2.mnbar.org/benchandbar/2000/aprOO/essay.htm its inception. See KAPLAN, INC. COMPANY INFORMATION, at (Apr. 2000) [hereinafter Oliphant]. http://www.kaplan.com/about/index.html (last visited Mar. 55 These video lectures are offered by such professors as 17, 2003). Arthur Miller of Harvard,John Blum of the University of Chi- 50 For example, Kaplan recently purchased Dearborn cago, Rafael Guzman of the University of Arkansas, and Mary Publishing Group, Inc. and Perfect Access, Inc. Id. Cheh of the George Washington University. Id. at 3. 51 HUMBOLDT LEGAL RESOURCE CENTER, LAW SCHOOLS IN 56 Id. CALIFORNIA, available at http://www.htimboldt.edu/ 57 CONCORD UNIWRSITw SCHOOL OF LAW, 2003-2004 CAT- -legalctr/schools.htm (last visited Mar. 18, 2003). ALOG, available at http://www.concordlawschool.com/info/ 52 At the inaugural graduation ceremony for Concord in custom/concord/pdfs/cls-catalog.pdf (last visited Nov. 17, November 2002, those students in attendance were actually 2003) [hereinafter CONCORD CATALOG]. meeting face-to-face with other students and faculty for only 58 Id. the third time in four years. See Julia Scheeres, Law Grads 59 Id. at 7. Online, Bar None, WIRED NEWS, at http://www.wired.com/ 60 See id. new/print/0,1294,56512,00.html (Nov. 21, 2002) [hereinaf- 61 All lectures are viewable through streaming video, de- ter Law Grads Online]. fined as video that "passes from our computer to yours in real 53 Among the law schools attended by the 13 Deans and time, so you don't have to download the entire, very large file Administrators are UCLA, University of Chicago, Harvard before you can watch it. Otherwise, you might have to wait and Boston University. Goetz himself has over 20 years of hours until the file were completely downloaded onto your experience as a former professor of Evidence and Remedies computer." Id. at 6. COMMLAW CONSPECTUS [Vol. 12 assignments and any portions of the curriculum room conversations, which meet on a weekly ba- twenty-four hours a day, seven days a week. 62 In sis. addition to lectures, Concord features professor- 63 led chat room discussions during which students D. Concord's Research Facility may ask questions, discuss legal issues, and in- quire about assignments. 4 Students have access The study of law, in the words of Supreme to the curriculum through their "Personal Court Associate Justice Anthony M. Kennedy, "is a Homepage" that provides each student with an in- search for forms and shapes and language and an 65 teractive syllabus for their courses. idiom of expression," that involves "the process of Concord has implemented procedures to en- respect and preservation, restoration and renewal, sure students consistently keep pace with the creation and invention and progress, which is the course load. Each course is broken into "mod- mark of any decent and just and brilliant soci- ules" of roughly a week and a half.6 6 Before stu- ety."' 7 1 Traditionally, law students embark on this dents can progress in any course, they must pass a "search" at their university's law library. Although multiple-choice exam that tests material from the Concord has no library building, their students most recent module. 67 Furthermore, in an effort have access to the world's largest library research- to prevent students from moving beyond the pace ing tool: the Internet.72 Concord students openly of the course, Concord's computing system pre- rely on the Internet as their sole source of re- vents new modules from being explored before search and thus far have found everything they the quiz on the previous module is passed. 68 Any need despite the nonexistence of a library. 73 In "unusual" problems a student experiences in a fact, some argue that students enrolled in conven- given course are reported automatically to an ad- tional law schools are so Internet Technology ministrator, who then contacts the student indi- ("IT") literate that they quietly prefer traditional 74 vidually. 69 Internet research to traditional library research. Despite being a predominantly distant pro- Although many conventional law schools supple- gram, there is some human interaction at Con- ment student's research tools by providing access cord. Faculty members are regularly available for to online research databases such as Westlaw and questions via phone, e-mail and fax. 70 This, of Lexis, traditionalists refuse to believe a virtual li- course, is in addition to the aforementioned chat brary can replace what is lost when students are

62 Id. western University School of Law, Law Library Dedication 63 Merriam-Webster defines "chat room" as "a real time and Gala (Oct. 3, 1997). on-line interactive discussion group." MERRIAM-WEBSTER 72 ELECTRONIC INFORMATION LITERACY, LIBRARY & IN- COLLEGIATE DICTIONARY (10TH ed. 2002). TERNET RESEARCH, at http://www.ouc.bc.ca/library/eil 64 Professors may ask questions during chat room ses- search/internet.html (last modified Aug. 25, 2000). sions that are directed to the class as a whole and students 7- See CONCORD CATALOG, supra note 57, at 28. All the type replies that are transmitted to the professor's screen, materials students need to complete their coursework is avail- rather than to the entire group. At the professor's discre- able on the school's law library interface. The library in- tion, those answers and follow-up questions are then posted cludes all United States Supreme Court Cases, the U.S. Con- to the general chat room for other students to elaborate on stitution, all United States Codes, the Federal Rules of Evi- or question further. This format "provides students with an dence, the Federal Rules of Civil Procedure, codes of Profes- opportunity to construct legal arguments, ask questions, and sional Responsibility, all California codes and , and re- interact with their classmates and leaves complete academic cent appellate cases and law review articles. The Concord control of the chat room in the hands of the instructor." See Law Librarian is also available to assist students with their re- CONCORD CATALOG, supra note 57, at 6. See also Oliphant, search. Id. supra note 54, at 4. 74 See Nicholas Pengelley, The Virtual Law School Library, 65 CONCORD CATALOG, supra note 57, at 33. 29 INT'LJ. LEGAL INFO. 615 (2001). 66 Oliphant, supra note 54, at 3. This time the uncertainty is largely driven by the poten- 67 "The grading of multiple choice questions is instanta- tial advent of Web-based learning, and the as yet largely neous and explanatory answers function as teaching tools... undeveloped nature of the law school response to the in the first year, a student will answer hundreds of multiple- possibilities of education outside of the traditional class- choice questions and write answers to 18 essay questions. room model. Uncertainty is also due to the growing Each essay answer is submitted for grading and returned on- awareness that IT literacy is increasing rapidly among line with extensive, individual comments." Id. our user community, and that students in particular now 68 Id. prefer electronic sources of information over print 69 Id. sources which, increasingly, they can access from places 70 Id. other than the physical law library. 71 Justice Anthony M. Kennedy, Remarks at the South- Id. 2004] Internet Law Schools denied an actual library. 7 - administrators to maintain a traditional legal edu- cation through a unique medium, Concord has received a tremendous amount of criticism and E. The Cost of Learning at Home resistance from legal scholars, traditionalists, and One of the biggest appeals of distance learning even a Supreme Court Justice. While this criti- is the economic benefit to the student. The cost cism has not weakened Concord's efforts, it has of a three-year law school program, including certainly hindered their quest to gain accredita- housing, books and living expenses, is estimated tion. Concord has no delusions; it realizes the de- average upwards of $1 ,000. 76 Most students bate over the legitimacy of online legal schooling to 0 0 8 0 are forced to take out tremendous loans to cover is far from over. Yet, they persist and also ad- tuition costs, and full-time students at many ABA- dress their critics with logical responses while hop- re- accredited schools are not permitted to work ing it is only a matter of time before those more than twenty hours per week. 77 For students sponses are heard. Concord's President and looking for a legal education without the burdens Dean, Jack Goetz, says those who criticize the of debt, Concord offers an attractive alternative to school for not having what is necessary to offer a most other institutions. Annual tuition for the JD quality legal education are "ill informed on the 8 program is $7,350, not including the cost of books educational opportunity Concord offers." ' and computer equipment. 78 Factoring in the cost Harvard University, the nation's oldest continu- of books and personal expenses, four years at ously operating, and perhaps most prestigious law Concord costs approximately $32,000, or what school, has been indirectly involved with Con- many typical law schools cost in tuition for a sin- cord's program and has responded to the situa- gle year.7T Much of the disparity in price is ex- tion with unbridled disapproval. In 1998, revered plained by Concord's ability to reduce expenses Harvard Professor Arthur Miller agreed to record since they are not required to construct class- eleven Civil Procedure video lectures for Concord rooms, maintain facilities, or incur other costs a and endorsed Concord as a legitimate and unique 8 2 typical campus brimming with students requires. endeavor. In response, Harvard modified its Many traditional law schools have lost potential rules regarding conflicting commitments by 8- students to less expensive endeavors, perhaps professors to include Internet teaching. Harvard even Concord, by pricing themselves out of the also prevented Miller from producing any further market. lectures. Harvard claimed their actions were not financially or control-based, but were taken to prevent the "risk of diluting the value of a F. The Criticism of Concord Harvard education by making it seem Miller was

Despite the efforts by Concord's founders and

75 Charlotte Bynum and Claire Germain, Legal Research in 80 Jack Goetz, Interactivity Remains the Key to Successful On- the Internet Age, CORNELL LAW FORUM, at http:// line Learning, at http://jurist.law.pitt.edu/lessons/les- www.lawschool.cornell.edu/lawlibrary/What isNew/in- nov00.htm (last visited Feb. 25, 2003). ternetage.htm (last modified Apr. 2000). See also Bob Hoo- 81 Id. ver, Librarians Get Truth-in-Internet Challenge, PIITSBURGH 82 Arthur Miller was the first professor at Harvard to of- PosT-GAzETTE, June 1, 2001, at C2. See alsoJamie McKenzie, fer an experimental course online, appropriately entitled, The New Library in the Wired School, E-SCHOOL NEWS, at http:// "Privacy in Cyberspace." His endorsement of Concord, newlibrary.org/nll.html (Oct. 1999). which remains on their website says in part: 76 See ABA COMMISSION ON LOAN REPAYMENT AND FOR- One of my latest endeavors involves Concord Law GIVENESS, Lifting the Burdening: Law Student Debt as a Bar- School. Concord represents this focus on providing legal rier to Public Service (2003). education to those who thought a law degree out of 77 See AMERICAN BAR ASSOCIATION PROGRAM OF LEGAL ED- reach. The school is at the forefront of educational tech- UCATION, at http://www.abanet.org/legaled/standards/ nology because of its use of the Internet to conduct its chapter3.html (last visited Nov. 3, 2003); see also Mississippi law classes. I am proud to be associated with Concord BAR: LAW AS A CAREER, at http://www.msbar.org/career.html because of its bold attempt to do what no one has done (last visited Mar. 18, 2003). before. 78 CONCORD CATALOG, supra note 57, at 21. See CONCORD LAw SCHOOL, FACULIY AND LECTURERS, at http:/ 79 See, e.g., Jerome Pandell, NU's Annual Tuition Increase /www.concordlawschool.com/info/custom/concord/ Below National Average, THE DAILY NORTHWESTERN, at http:// faculty/index.asp (last visited Mar. 18, 2003). www.dailynorthwestern.com/vnews/display.v/ART/2003/ 8" See Mark Clayton, HarvardDraws a Line in the Cybersand, 02/25/3e5b7dcfb83f3 (Feb. 25, 2003). CHRISTIAN SCIENCE MONITOR,Jan. 23, 2001, at 15. COMMLAW CONSPECTUS [Vol. 12 on the Concord faculty as well as at Harvard."8 4 dividual students to discuss a case or statute, is all While Professor Miller agreed to discontinue his but lost over the Internet.8 8 While that fact is un- association with Concord, he said the policy of- deniable, the true question is whether this teach- 8 5 fended academic freedom. ing method is necessary in law school. The uproar created by Harvard is not the only Numerous law review articles have been entirely highly publicized denouncement of Concord. devoted to the advantages and disadvantages of Perhaps more upsetting were the specific attacks the Socratic Method. Although it is impossible to made by Supreme Court Justice Ruth Bader Gins- do an in-depth analysis of this teaching style, it burg. While speaking at the dedication of the suffices to say that it has received great criticism as Rutgers University Center for Law and Justice in being more of a "hazing" technique despite many September of 1999, Ginsburg noted she was professor's beliefs that it teaches students to 8 9 mostly pleased with the opportunities afforded by "think like a lawyer." For example, "[i]n a court- the Internet. Then she addressed those things room, if you are asked a question by a judge, you she did not find pleasing: can't say 'I need a day or so to look that up on the I am uneasy about classes in which students learn en- Web."' 9 0 While true that one cannot use the In- tirely from home, in front of a computer screen, with no face-to-face interaction with other students and in- ternet for research in the heat of litigation, it is structors .... So much of legal education and legal questionable whether the Socratic Method makes practice is a shared enterprise, a genuine interactive en- students any more prepared to answer questions deavor. The process inevitably loses something vital when students learn in isolation, even if they can en- in the courtroom. Goetz seems to feel it does not, gage in virtual interaction with their peers and teach- stating that Concord's writing and research as- 8 6 ers. signments teach sufficiently "clear thinking."9 1 The remarks implicitly denounced Concord since Furthermore, he infers that the Socratic style is they were, and are, the only institution to offer less beneficial than the Concord method: such a program. Dean Goetz responded immedi- "[mlostly today you have 110 people stuffed in a ately to Ginsburg's comments, stating "the reality lecture room and one professor engaged in a So- is that many law schools still have first-year classes cratic dialogue with one student."92 The only cer- of seventy or eighty people in which a student has tainty when examining the battle between So- very little interaction with the professor."8 7 He cratic teaching and Internet education is that further noted that Concord students do interact much of the burden lies on legal professors to em- with classmates and professors through e-mail, brace the available technology, while accepting telephone and online discussions. that "traditional" methods are not necessarily the One of the more frequent and less publicized best methods.9 3 In addition, no logical explana- criticisms of Concord is that the Socratic Method, tion has been offered to explain the value of the i.e., the traditional form of law school teaching Socratic method to those students who have no during which the professor randomly calls on in- future in litigation.

84 Id. 93 Peter Tillers, There is Something Foul in Legal Education. 85 Jay Lindsay, Harvard Considering Tightening Rules for And the Internet is Part of the Cure, at http://jurist.law.pitt.edu/ Faculty's Internet Ventures, AP NEWSWIREs, Apr. 25, 2000 ("The lessons/lesdec00.htm (last visited Mar. 18, 2003). question is whether my contract bounds me exclusively to Yes, many law teachers in the U.S. still use the 'Socratic Harvard Law School, or whether I have free choice."). Method.' But this question-and-answer procedure does 86 Katherine S. Mangan, Justice Ginsberg Raises Questions not really significantly change the master-servant nature About Internet-Only Law School, THE CHRONICLE OF HIGHER ED- of the educational experience at law schools; 'Socrates' UCATION, at http://chronicle.com/free/99/09/ still runs the show and the questioning does not amount 99091302t.htm (Sept. 13, 1999) (quoting James Hoover, As- to free inquiry. The Internet, however, holds the prom- sociate Dean, Columbia University School of Law). ise, if not the guarantee, of a more equal, a more free- 87 Id. spirited, a more truly exploratory educational experi- 88 William S. Ramsey, On-Line Law School, at http://wil- ence. This is so if only because e-mail Internet discus- liamramseylaw.com/pages/on-linelawschool.html (last vis- sion allows each participant to speak as often as any ited Jan. 17, 2003) [hereinafter Ramsey]. other member of the group, and the physical trappings 89 Id. of the usual classroom, which make the teacher the 91 Pamela Mendels, Test PreparationCompany Offers Virtual center of attention, are absent. However, the Internet Law Degree, at http://pages.nyu.edu/-fmhl/classes/innova- by itself cannot free the consumers of legal education tions-in-highered/kaplanlaw.HTM (Sept. 23, 1998). from intellectual servility. The teacher must want to use 91 Id. this new educational instrument in a liberating way. 92 Id. Id. 2004] Internet Law Schools

G. Concord and the Bar Exam While some states prohibit graduates from unac- credited schools from practicing law, some states The ABA's refusal to grant Concord Law School have promulgated exceptions for these students. accreditation initially precluded Concord gradu- For example, in June of 1998, the Wisconsin Su- ates from taking the bar exam in almost every preme Court amended its Bar Admission rules: 4 state.9' This is not a problem for students who are (1I An applicant who has been awarded a first profes- only interested in studying law for the supplemen- sional degree in law from one of the following tary knowledge they will apply in their pre-existing [shall be eligible to take the ]: careers.95 For everyone else at Concord it is a ma- (a) A law school that is fully or provisionally ap- proved by the American Bar Association at the jor problem. While states vary with regard to their time of the applicant's graduation. qualifications for legal practice, most require pass- (b) A law school whose graduates are eligible to ing a state bar exam, which is predicated on hav- take the bar examination of the state, territory or District of Columbia in which the law school ing graduated from an accredited law school. In is located, provided the applicant has passed

California, students have the opportunity to take the bar examination of and has been9 9admitted the state bar exam despite not having graduated to practice in that or another state. from an accredited university, provided a few re- Similarly, Maryland allows anyone who had quirements are met. First, students enrolled in an practiced law for five of the previous seven years unaccredited program, like Concord, must regis- as a lawyer, law teacher or judge to become a ter with the California Committee of Bar Examin- member of the Maryland bar, provided practition- ers within ninety days of beginning classes. 96 Stu- ers pay the requisite fee and pass a separate 00 dents are also required to take, and pass, the exam. 1 "baby bar" exam. The "baby bar" follows the first Both the Wisconsin and Maryland statutes are year of study and is only given to students attend- excellent examples of how individual states can ing unaccredited schools. If the student does not avoid shunning graduates of distance programs, pass, he or she cannot sit for the California State such as Concord, while still ensuring that those in- bar exam after graduation. 9 7 Statistics show that dividuals are sufficiently trained, educated and unaccredited programs generally have a "baby qualified to practice.10 ' bar" pass rate of under 30%.98 This figure indi- cates there is little harm in allowing students to sit H. Why is Concord So Far Behind the Rest? for the bar since California's "baby bar" system weeds out students who are unlikely candidates to One of the more obvious deficiencies of dis- pass the real exam. tance legal education is the absence of available Passing both the "baby bar" and full bar exami- programs. Concord is presently the only purely nation in California despite graduating from an online law school, although some lesser programs unaccredited school allows one to practice law in currently exist to supplement traditional legal California among graduates of Stanford and programs. For example, there are some "Con- UCLA. Although it may be more difficult to waive cordesque" legal institutions in other countries, into other states, it is not an automatic hindrance. and a few unaccredited law schools in the U.S.102

94 Ramsey, supra note 88. 11/guest.html (Nov. 2001). 95 Robert Lee, a 62 year-old who is one of Concord's first 100 See MD. CODE,ADMIS., RULE 13, (2003). graduates, says, "I live in a small town where there is no law 101 See SJCL, ACCREDITATION, at http://www.sjcl.edu/ad- school, and I run a very busy medical practice. This is the ditionalreq.html (last visited Mar. 18, 2003) (outlining the only opportunity I have to study law, which has been my states that allow graduates of non-ABA-accredited schools to dream for a long time. This is a dream come true. Hopefully take their bar exams provided additional requirements are this will allow me to help my patients get the care they need." met). See Law Grads Online, supra note 52. 102 Numerous institutions offering online legal programs 96 CAL. ADMIS. CODE, RULE V §2 (2003); see also CONCORD exist outside of the United States, such as the Charles Sturt CATALOG, supra, note 57. University located in Wagga Wagga, Australia and De 97 See CAL. ADMiS. CODE, RULE VII. Montford University in Leicester, England. They offer a list 98 Michael Finney, Do Online Law Schools Match Up to of partially online legal programs offered by accredited law Traditional Class?, at http://abclocal.go.com/kgo/news/ schools in the United States including the University of Ala- 7 oys/022403_7oys-online-law.html. bama and the University of Wisconsin. See Law: GraduateDis- 99 WIs. STAT. §40.04(1) (1998); see alsoJeffrey S. Kinsler, tance Programs, at http://www.gradschools.com/listings/dis- Correspondence Law School Grads May Practice in Wisconsin, Wis- tance/lawdistance.html (last visited Oct. 15, 2003); see also CONSIN LAWYER, at http://www.wisbar.org/wislawmag/2001/ Degrees-Online.corn, at http://www.degrees-online.com/Profes- COMMLAW CONSPECTUS [Vol. 12

1 6 However, the number of online legal programs hundred lawyers from twenty-one states. 0 The comprises only a small percentage of the total founder's mission was to assist in the "advance- number of online graduate programs offered in ment of the science of jurisprudence, the promo- 10 3 the United States. tion of the administration of justice and a uni- 10 7 Another shortcoming of online legal education formity of legislation throughout the country."' is that no prestigious school has taken a chance by They immediately established the Standing Com- offering an online program similar to Duke Uni- mittee on Legal Education and Admissions to the versity's Fuqua School of Business. However, Bar to help mold American legal education.°10 By Duke University School of Law is currently exam- 1900, the ABA had played a major part in the cre- ining Fuqua's program to learn what works, what ation of the Association of American Law Schools does not, and what they might be able to put into ("AALS"), through which it was given minor regu- practice in future legal education distance pro- latory power over membership requirements.10 9 1 4 grams. 0 In addition, the law school currently In 1921, they established the "Standards for Legal implements programs that are the groundwork Education",I"' and since then the ABA has been for an online course curriculum, and there is a regarded as the primary guardian of the Ameri- strong likelihood that Duke will soon become one can legal system. of the first major law schools to dive headfirst into Today, the ABA admits over 50,000 new mem- 5 the world of online legal education.10 bers per year and has a total membership of over Seemingly, the only thing stopping Duke from 350,000 members.'11 Membership is open to any providing an online JD program is the same thing attorney admitted to practice and in good stand- that has prevented other legal online programs ing before the bar of any state or territory of the from approaching the success of online MBA and United States. 12 Similar to the ABA's original other online graduate programs: the ABA. mission statement, today's ABA strives "to be the national representative of the legal profession, serving the public and the profession by promot- V. THE AMERICAN BAR ASSOCIATION ing justice, professional excellence and respect 3 A. History for the law."'' Despite the ABA's stated intentions, there has Founded in 1878, the ABA began with only one sional/Law/ (last visited Oct. 15, 2003). 108 See ABA FOREWORD, supra note 5. 103 US. News and World Reports claims there will be over 109 The AALS is a non-profit association of 164 law 200 institutions offering online graduate degrees in addition schools committed to "the improvement of the legal profes- to 150 offering online undergraduate degrees by next year. sion through legal education." It is "legal education's princi- They also list over forty online business degrees available pal representative to the federal government and to other na- from accredited institutions as compared to no accredited tional higher education organizations and learned societies." online law degrees. SeeJames M. Pethokoukis, E-Learn and See id. See also AALS, PURPOSE AND DESCRIPTION, at http:// Earn, U.S. NEWS & WORLD REPORT, June 24, 2003, at 36. See www.aals.org/about.html (last visited Mar. 18, 2003). also U.S. NEWS & WORLD REPORT, E-LEARNING, ONLINE GRAD- 110 See ABA FOREwoRD, supra note 5. UATE DEGREES: Business, at http://www.usnews.com/usnews/ 111 See BRIEF HISTORY OF THE AMERICAN BAR ASSOCIATION, edu/elearning/tables/mbareg-prof.htm (last visited Nov. supra note 106. 17, 2003). 112 Id. The following are eligible to join the ABA as asso- 104 Richard A. Danner, Strategic Planning for Distance ciates: non-lawyer judges, federal court executives, bar associ- Learning in Legal Education: Initial Thoughts on a Role for Librar- ation executives, law school educators, criminal justice pro- ies, at http://www.law.duke.edu/fac/danner/paper5.html fessionals, members of administrative agencies, industrial or- (last visited Mar. 20, 2003). ganization economists, law office administrators, legal assist- 105 Currently Duke Law School requires all of its stu- ants, law librarians and members of Association-approved law dents to own portable computers. Furthermore, Professor school boards of visitors. Members of the legal profession in David Lange uses student produced video assignments to other nations who have not been admitted to the practice of supplement his intellectual property and entertainment law law in the United States can become international associates. courses, and Professor Michael Byer uses video conferencing Id. in his International Dispute Seminar to present guest lectur- 113 The goals of the ABA are: ers from Cambridge University. See id. * Promote improvement in the American system ofjus- 106 LECTRIC LAW LIBRARY, BRIEF HIsToRY OF THE AMERI- tice; CAN BAR ASSOCIATION, available at http://www.lectlaw.com/ * Promote meaningful access to legal representation files/att05.htm (last visited Mar. 18, 2003) [hereinafter BRIEF and the American system ofjustice for all persons re- HISTORY OF THE AMERICAN BAR ASSOCIATION]. gardless of their economic or social condition; 107 Id. * Provide ongoing leadership in improving the law to 2004] Internet Law Schools been an increasing number of lawyers and law stu- them. 118 dents who feel that the ABA abuses its power, and In response, the AALS, which was regulated in that regulation or even the abolishment of the part by the ABA, began to deny membership to ABA is necessary to truly ensure fairness in the proprietary schools.' 9 Shortly thereafter, the competitive world of legal education. ABA and deans of elite law schools formed an "al- For more than half a century, and especially liance" in their attempt to limit the number of during the past twenty years, the American Bar As- new lawyers by eliminating proprietary law sociation has administered the accreditation sys- schools. 1210 tem for law schools. This system arose out of suc- Since the ABA claimed to represent the entire cessful efforts during the Great Depression by a legal profession, by 1941 they were able to con- combination of elite law professors, law schools, vince forty-one states to enact legislation that re- and lawyers to limit competition in each of the quired graduation from an ABA-accredited school three related markets for law faculty, legal train- as a prerequisite for the bar exam. 2 1 With this ing, and legal services. Once it was firmly estab- legislation in place, the ABA has wielded the lished, this system reduced compensation in the power to determine who is worthy of accredita- markets for legal training and for law faculty, in- tion for over sixty years. In that time, the ABA has creased benefits for law faculty, and insulated ex- convinced all but four of the fifty states that their isting lawyers from new competition.' 14 stamp of approval should be required before a 122 student may sit for the bar exam. B. The ABA and Accreditation C. United States v. ABA From about 1890 to 1930, the number of law schools in the United States tripled, and the num- ber of law students increased over 800%. 115 Dur- Despite the ABA monopoly throughout much ing most of this period, clerking for a law firm or of the twentieth century, numerous lawsuits were apprenticing for an established lawyer was the filed against it in the last twenty years. Many of only requirement before one was permitted to these suits were feeble attempts to convince the courts to compel the ABA to soften their rigid re- take the relatively simple bar exams.' 16 However, the increasing numbers of schools and students quirements for accreditation approval. The most produced attorneys that posed a threat to estab- notable of these suits involved the United States 7 lished lawyers. 1 government, represented by the Department of Since the desire on the part of young men to study law Justice ("DOJ"), and the result put a dent in the has become so great . . . teaching law has become a ABA's invincibility. thriving and profitable industry .... The competition Provoked by antitrust claims against the ABA by of such [graduates of new proprietary law schools] be- the Massachusetts School of Law, which had been tween themselves and others of their own better equipped has a tendency to lower the compensation for denied accreditation by the ABA in 1993, the DOJ professional labor and decrease the earning of all of thoroughly investigated the ABA's accreditation

serve the changing needs of society; and the judiciary as fundamental to a free society. o Increase public understanding of and respect for the See AMERICAN BAR ASSOCIATION, ABA HISTORY, at http:// law, the legal process and the role of the legal profes- www.abanet.org/media/overview/phistory.html (last visited sion; Nov. 3, 2003). o Achieve the highest standards of professionalism, '14 Shepherd & Shepherd, supra note 4, at 2094-2096. competence, and ethical conduct; 115 Id. at 2115. o Serve as the national representative of the legal pro- 116 Id. Until 1927, law school education was not a bar fession; requirement. In fact, over one forth of the states required no o Provide benefits, programs and services which pro- formal education beyond high school and over thirty did not mote professional growth and enhance the quality of even require a high school diploma. Id. at 2114-15. life of the members; 117 Id. o Advance the rule of law in the world; 118 Id. at 2115, 2116. o Promote full and equal participation in the legal pro- ''9 Id. at 2116. fession by minorities and women; 120 Id. at 2117. o Preserve and enhance the ideals of the legal profes- 121 Id. at 2122. sion as a common calling and its dedication to public 122 Currently, only California, Tennessee, Alabama and service; Massachusetts allow graduates of non-ABA-accredited schools " Preserve the independence of the legal profession to take their bar exams. See Leef, supra note 6. COMMLAW CONSPECTUS [Vol. 12

12 process and filed suit.I The suit was settled after Although this section seems to offer hope that a extensive negotiations, and the ABA agreed to re- distance program less intense than Concord's may linquish some of its control over the legal educa- receive accreditation if offered in conjunction tion field.124 Among the agreed upon terms were with a more traditional curriculum, one needs three that specifically regarded accreditation: (1) only to look at ABA Standard 306: the ABA may no longer take any action that at- (d) A law school shall not grant a student more than tempts to regulate or standardize the salaries of four credit hours in any term, nor more than a to- tal of 12 credit hours, toward a J.D. degree for law professors; (2) the ABA may not prevent an courses qualifying tinder this Standard. institution from existing for-profit; and (3) the (e) No student shall enroll in courses qualifying for ABA may not prevent accredited schools from ac- credit under this Standard until that student has completed instruction equivalent to 28 credit cepting transfer credits from unaccredited 25 hours towards the J.D. degree. schools.' (f) No credit otherwise may be given toward the J.D. 1 2 8 While the victory against the ABA was signifi- degree for any distance education course. cant in that it both instituted significant changes While the exceptions outlined for distance and made it more popular for law schools to voice learning do indicate some flexibility in the ABA's their criticism, the organization continues to be traditionally rigid standards, they still signify that the accreditation gatekeeper. Despite their claim the ABA is far from accepting a purely online of being nothing more than "an impartial ob- school. Jack Goetz sees the ABA's exceptions as server that contributes unbiased information an indication that they are "moving glacially" to- about law schools' characteristics to consumers," wards accrediting Concord, although he claims to that has "no animus against unaccredited law be "happy they're moving at all."' 2 9 He optimisti- schools," it is their "unbiased information" that cally adds, "Someday they'll see the light."'' 31 As has kept Concord and other prospective distance far as the ABA is concerned, that day is not in the programs outside of the gates looking in. immediate future. According to Barry Currier, the ABA's Deputy Consultant on legal education, Concord has offered no convincing reason why it D. Why Distance Learning Has Been Denied should be accredited. "The bottom line is that Accreditation lawyers need to have proper training," says Cur- Distance law schools are not accredited by the rier.' 3 He insists that some day the proper train- ABA for two specific reasons: ABA Standards for ing for accreditation may exist online, but Con- Approval of Law School Standards 304 and 305. cord's lack of face-to-face interaction indicates To be eligible for accreditation, a school must that it is "not there yet."' 3 2 With the ABA's track provide a student with no fewer than 56,000 min- record, one must wonder if Concord ever will be utes of instruction time prior to graduation, with accredited. at least 45,000 of these minutes offered by "at- tendance in regularly scheduled class sessions at VI. CONCLUSION: HOW THE ABA COULD the law school conferring the degree."' '" MAKE PEACE WITH DISTANCE Under ABA Standard 306(c): EDUCATION WHILE PRESERVING A law school may award credit for distance education and may count that credit towards the 45,000 minutes ITSELF of instruction required by Standard 304(b) if: (1) there is ample interaction with the instructor and other stu- The twentieth century began with the ABA's dents both inside and outside the formal structure of rise in prominence to unprecedented heights and the course throughout its duration; and (2) there is am- ple monitoring of student effort and accomplishment ended with multiple lawsuits and harsh criti- 12 7 as the course progresses. cism.' 3 - If the ABA hopes to maintain control of

123 Shepherd & Shepherd, supra note 4, at 2154. 127 Id. 124 Id. 128 Id. at STANDARD 306. 125 United States v. Am. Bar Ass'n, 934 F. Supp. 435, 435- 129 Law Grads Online, supra note 52, at 2. 437 (D. D.C. 1996). 130 Id. 126 AMERICAN BAR ASSOCIATION, STANDARDS FOR AP- 131 Scheeres, supra note 11, at 2. PROVAL OF LAw SCHOOLS, STANDARD 304(b), available at http:/ 132 Id. /www.abanet.org/legaled/standards/chapter3.hml (last Nis- 13 3 See generally Am.Bar Assn, 934 F. Supp. at 435. See also ited Oct. 15, 2003). Florida Bd. of Bar Examiners ex rel. Barry Univ. School of 20041 Internet Law Schools

legal education in any capacity in the twenty-first tion before one is permitted to take the bar exam, century, changes are in order. inaccredited law schools could petition state leg- This Comment examined the Concord School islatures to repeal such legislation. of Law because it is an ideal example of the most Some argue the system as it stands is both extreme form of distance learning-precisely under and over-inclusive and that states actually what the ABA fears most. While Concord has re- hamper the legal profession by limiting the bar ceived a tremendous amount of attention for its exam to ABA-accredited graduates. 3 4 Should op- groundbreaking efforts, law schools that exist en- ponents succeed in convincing states currently re- tirely in cyberspace will not undermine traditional quiring ABA accreditation to include distance systems, nor will they lure multitudes of students learning programs, a domino effect could occur away from traditional programs, regardless of across the country within the next few decades. whether or not they receive accreditation. Con- Though it is unlikely that all forty-six states cur- cord and similar programs will attract students ei- rently requiring ABA accreditation as a prerequi- ther looking to get a legal education on their own site to the bar exam will overturn their legislation, time, or those who simply do not meet the stan- the ABA has indicated that it is aware that dards of more selective programs. changes in distance education are in order. Their Despite the optimism ofJack Goetz, and regard- acceptance of token distance learning credits at less of what changes the ABA has in store, it is accredited schools is certainly a step in the right highly unlikely that Concord or any other entirely direction. Whether it is the beginning of a revQlu- online legal education provider will ever receive tion or a one-time bending of their traditional ABA accreditation. Although it has taken great rules is entirely their decision. The ABA's defense strides to provide interaction among students and for its accreditation policies, that they actually are a curriculum that is comparable to those of many trying to protect consumers from being "ex- ABA accredited universities, Concord is so far be- ploited" by insufficient programs, becomes less hind the current ABA Standards that to accredit it convincing as the cost of education at ABA-ac- would go against everything the ABA has taught credited institutions continues to soar. 135 The over the last two decades. To date, there is no in- ABA's further insistence that it is crucial for stu- dication that the U.S. has any intention of pub- dents to learn in an environment where they can licly supporting distance education or endorsing meet face-to-face with teachers and students has Concord in a suit against the ABA. never been substantiated with a concrete explana- That does not necessarily leave Concord or its tion for why such interaction is a necessity in legal successors without remedy. Should the criticism education. The ABA is fortunate that as the gov- continue simultaneously with the ABA's stubborn erning body they do not have to justify their rea- reluctance to change with the times, unaccredited soning, as they might be hard pressed to do so in schools, both traditional and Internet-based, may regard to this claim. However, the animosity begin looking to state legislators for assistance. building against the ABA indicates that they Similar to the manner in which the ABA and should start formulating an explanation for their deans from elite schools petitioned state legisla- policies soon, as the need to defend themselves tures to enact legislation requiring ABA accredita- continues to grow.

Law, 821 So. 2d 1050 (Fla. 2002). curred when most lawyers received no law school train- 134 See Shepherd & Shepherd, supra note 4, at 2251-52. ing. The recent malaise in the legal profession, in which The accreditation requirement is unfair and inefficient lawyers have become perceived as greedy parasites, has because it is both overinclusive and underinclusive. It is occurred during the same period that law school train- overinclusive because it excludes students who would be- ing became dominant. come excellent lawyers even without attendance at an Similarly, the accreditation requirement is underinclu- ABA-approved school. These students could receive ad- sive because it fails to exclude from the profession those equate training by private study, by apprenticeship, or by who have attended an ABA-approved school, but who study at cheaper unaccredited schools. The present sys- nonetheless are not fit for practice. It is inevitable that tem would have excluded both Abraham Lincoln and all some students from ABA schools become less effective of our founding fathers and early presidents who were lawyers than would students who lack the credentials or lawyers. Indeed, many recall a golden age of lawyering, money to attend an ABA school. when lawyers were responsible professionals who de- Id. lighted in public service. This golden age is instructive, 1'5 Id. at 2253. even if the nostalgia may be partly exaggerated. It oc- COMMLAW CONSPECTUS [Vol. 12

Many wish the ABA would simply provide im- will settle. Neither side will ever totally agree, but partial and unbiased information so that people the ABA will be forced to bend its restrictions to could make their own choices as opposed to "sup- the unstoppable force that is distance education. pressing competition."' 36 Unfortunately, the ABA While Concord may never receive accreditation, would never reduce itself to such a level unless it legal programs analogous to Duke's Fuqua School was forced off of its perch by anti-ABA legislation. of Business are on the way. Those who thought More realistically, one should hope the ABA's ac- they would never see the ABA's armor kink might ceptance of distance education grows directly in be surprised, but it would not be the first time. correlation with the online education industry. Who in the ABA would have been surprised to While a grudge match between the ABA and its hear a law student sitting in his living room was innumerable opponents seems like it will be a re- receiving a lecture from a Harvard Professor? ality in the near future, the two sides will eventu- Doubtfully any of them, but times change and so ally mirror the result in ABA v. United States. they must the American Bar Association.

136 Id. at 2255.