Open and Legal Education

There is no shortage of topics to write about when it comes to Legal Education in the 21st Century. Most of them encompass a huge amount of changes that are in process or on the horizon, which, depending on your outlook, can be taken as good news or bad. I think everyone can agree that it is a bit overwhelming to contemplate – especially since most of the changes such as governing body regulations, legal job markets and technological innovations are completely out of our hands and still be decided. Even the most pro-change reformer who would love to “skate to where the puck will be” can be frustrated by the fact that no one can agree on where that is.

Unlike my co-columnists on the SLAW Legal Education beat, I am neither a law school administrator nor a Canadian. The former will likely never happen and I will try to make up for the latter with well-placed hockey references and mentally pronouncing words such as “process” with the emphasis on the first syllable when I write. I anticipate that most of my columns in this space will concentrate on the micro rather than the macro – I want to reach the cross-border audience as well as make the most of my experiences in the classroom. I also will be doing this because, even though much of the coming changes in legal education are out of most of our hands, there are steps and practices each of us can implement today to be better prepared for the future, whatever it looks like. Nothing feels better than empowering yourself and realizing you CAN take action.

Before I get to specifics, however, I thought it would be useful to begin with a more macro topic. I am an enthusiast of all things open – Open Education, Open Educational Resources, Open Access, Open Source, to name a few of the options – and I believe that all have a place in legal education. As a matter of fact, I believe most are the solution or at least would be a benefit to most of the issues currently facing legal education. Of course, Open Education, Open Educational Resources (OER) and indeed, even the word Open itself as used in these and related terms require a bit of unpacking to understand fully.

The Francophones among you are lucky in that French (and it seems most European languages BUT English) separates out the meanings of the English word Free into Libre and Gratuit. To avoid the idea that no monetary cost is the only necessary trait, many Anglophones use the term “Open” to describe tools and resources that are libre and gratuit. David Wiley has developed a 5R Framework (link: to further flesh out the concept of Open. The 5Rs say that people may “Revise, Reuse, Remix, Redistribute and Retain” open content and tools.

To be truly open, something must not just have legal permissions allowing these Rs, but also a technological or physical format that also allows for it. For an extreme example, imagine a law review article carved into a stone block. The author may say “the content of this article is open – you can incorporate it into your courses or quote in your writing!” but as a practical matter, it will be difficult for you to use it or share it with anyone else. Not necessarily impossible – you could absolutely sit down in front of it and transcribe it by hand – but definitely difficult. A more common example will be a PDF on a website. An article in this format will have similar remixing and resuing issues, as anyone who has ever tried to cut/paste from a one can attest.

Open Education takes this concept of Open and applies it to the educational establishment. It seeks to remove all barriers to someone getting an education – again, not just cost, but things that some may not even realize is a barrier – location, admission standards, timing of courses, etc. Canada should be very proud of its Athabaskan University (link: which is a worldwide leader and pioneer in Open Education. It doesn’t currently have a Faculty of Law, but a girl can dream. The rise of MOOCs is another aspect of Open Education, but that’s another blog post for another day.

White tuition is certainly a great concern, the immediate costs borne by students in purchasing their casebooks and texts should not be forgotten Open Education practitioners often use something called Open Educational Resources (OER) to meet their mission. As with the other Opens, the price and students are not the only benefits and beneficiaries of OER.

In my six years of law school teaching, I don’t believe I ever used just one textbook and assigned every page in it in the order that it was presented. I would be very surprised to find someone that does. For my courses, there were a few books each semester plus materials on reserve in the library and we jumped around between them. Keeping the order and resources straight was a bother for all involved and at least once a semester a student either failed to bring the right book or read the pages in the wrong one.

While in the legal practice world many are discussing “the end of lawyers” and “the end of bespoke”, here in the legal education world, we are at the cusp of what could be the Age of the Bespoke Casebook. Imagine an online ecosystem like Pinterest or Tumblr, but instead of impossible to make recipes or pictures of Dr Who, it was filled with case law, law review articles, suggested syllabi, assessment questions and also gave you the opportunity to write your own material. You could pick and pin through the collection, edit your selections and create a casebook perfectly suited to your course’s needs. And, if you are feeling especially generous, you may be inclined to reshare your creation so that a fellow professor not as interested in bespoke, but just the free cost, could use it in their course. That’s OER in legal education. Unfortunately, such an ecosystem does not currently exist, but the collection of materials on CANLii (link: ) is a great start.

As I write this, international Open Education Week (link: has just wrapped up. I hope that by next year’s OEW, I will have some specifics of Open Education or OER in law schools to report.

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