Teaching ODR… Whose Job Is It?

A few months ago, a subscriber to John Gregory’s listserv (which every IT law enthusiast should subscribe to) sent a message regarding how the impact of IT on the legal profession was being taught (or rather wasn’t being taught) in Universities across the country.

Of course, that very question has preoccupied lawyers and legal scholars alike for two decades with regard to IT law, i.e. whether it should be treated as a subject in and of itself (in which case it usually isn’t a mandatory class, meaning that students can go through law school without hearing the word “Internet” in a legal context), or if the digital medium should simply be addressed in basic textbooks and general courses and classes.

Without picking a side in the “Law of the horse” debate that opposed Justice Frank H. Easterbrook and Lawrence Lessig, it seems that the later has won out for what seem to be mostly pragmatic reasons. The legal community still often treats IT law like a red-headed stepchild and, therefore, doesn’t let it permeate through the carefully constructed walls of “classic” legal spheres (contracts, liability, criminal law, constitutional law, etc.). It’s actually very disheartening to see that treaties on liability won’t discuss online liability while ecommerce is often left out of contract teachings. One could, even today, spend weeks in a law library and not read one sentence on the impact of technology on the law, unless they stumble upon the IT law section. Therefore, it seems that those of us who have an interest in IT law must treat it like a topic in and of itself, even if we don’t believe that should be the case.

This statement may not reflect what is going on elsewhere in Canada, but, in Quebec, it seems difficult to dispute. For example, even though the Act to Establish a Legal Framework for Information Technology has been around for over a decade now, it’s astounding how many lawyers are still simply unaware of its existence. Although, again, we don’t want to generalise and claim that this is a country wide problem, the fact that Ontario’s Electronic Commerce Act has only been quoted three times by the courts in that province leads one to think that the situation is not restricted to the borders of La belle province.

Which brings us back to our initial premise. Can this lack of enthusiasm for IT as a legal object, but also as a tool within the legal system, be caused by how it is being taught? The argument could be made that this is the case and that some law professors are simply out of touch since they refuse to adapt to the times, but the counterargument could be that they need not address particular technologies, but simply legal principles. Furthermore, it’s easy to cast blame on law faculties, but, truth be told, law students that are used to taking notes on their laptops, recording their classes on their iPhones and even taking certain exams online are often subject to a rude awakening the day after they pass the Bar. Courtrooms across the country are still (for the most part) ill equipped when it comes to technology and, although this is slowly changing, the institutionalisation of the technological trial is still many years away. Since this is the case, can law professors who ignore technology in their teachings really be criticised for transmitting legal knowledge that, although somewhat outdated from a societal standpoint, still reflects current legal “standards”?

The same observations can be made as it regards online dispute resolution (ODR). Although, as discussed in our previous posts, many private entities and public bodies have made great strides in the field, ODR remains on the outskirts of accepted dispute resolution mechanisms and, therefore, accepted teachings.

This invites the question: Should Universities teach the Law how it’s been practiced over the years (and, in most cases, is still being practiced), or should they act as agents of change and teach it as it most likely will evolve in the next few decades? This debate, although it focuses on a relatively new topic, isn’t totally original. During the renaissance, European universities were faced with a similar dilemma since they taught Roman law while it wasn’t the law of the land. They obviously eventually chose to follow the tides… Here the shift isn’t really as strong. We’re not advocating for a new legal system, simply new legal objects and tools.

The astute reader will have guessed by now that we err on the side of change. Law faculties shouldn’t simply be professional schools, they should help the legal profession move forwards by forcing it to adapt to the society in which it is evolving. Law students should learn to master technological tools such as ODR platforms and efiling, otherwise, they will be ill-equipped when the change come. And it will come. Cash-strapped departments of justice around the world are making sure of it. Therefore, if lawyers don’t learn to adapt to the current technological shift, legal services will become as irrelevant as the horseshoe industry after the invention of the automobile. We wouldn’t – to steal a line from Richard Susskind – herald “the end of lawyers” just yet, but between high legal costs and inefficient practices, individuals are less and less inclined to use our services.

It is for these reasons that the Cyberjustice Laboratory has put together a Summer school program on cyberjustice, i.e. on “the integration of information and communication technologies into judicial or extrajudicial dispute resolution processes”.

The Cyberjustice Laboratory Summer School will be held from June 8^th to the 14^th of this year at the Université de Montréal. It is a unique event which will introduce law students, as well as professionals within the legal community (lawyers, judges, court administrators, etc.) to different IT related themes such as the impact of new technologies (e-discovery and videoconference) on traditional justice mechanisms and ADR; the role already played by technology in Canadian courtrooms and around the world; as well as a look at what the future holds.

Time will tell if this effort will prove fruitful, but we do see it as a step in the right direction…

For more information on the program, please follow this link: http://laboratoiredecyberjustice.org/en/SummerSchool.