Professor Jonathan Zittrain on the promise of open legal education
Jonathan Zittrain is the George Bemis Professor of International Law at Harvard Law School. He is also a professor at the Harvard Kennedy School of Government, a professor of computer science at the Harvard School of Engineering and Applied Sciences, director of the Harvard Law School Library, and co-founder and director of Harvard’s Berkman Klein Center for Internet & Society. He is also a founder of the H2O platform. We recently talked about how he uses H2O in his classroom and his take on the benefits and opportunities of open legal education technologies.
What are your primary areas of teaching and research?
I teach Torts, as well as a number of courses about the digital space: privacy, property, and speech online; the ethics of artificial intelligence; and the digital online architectures, including who controls them, and how they in turn shape us.
What prompted the development of H2O and your own decision to start teaching with H2O?
I was interested in developing and using H2O in my own classroom for a few reasons. From the student’s point of view, especially in law where 90% of the contents of a casebook are public domain materials - written opinions by judges, paid for by tax dollars - the fact that those books go for $250 or $300 a pop per course just seems usurious.
Further, it’s interesting how much, in order to fit a case into a casebook, you understandably need to trim it and take out a bunch of stuff. But certainly the judge writing the opinion thought that all the words were needed. So, through H2O’s case annotation tool, there’s a simple mechanism to create an ellipsis when the teacher removes a section of the case that students can then click on and in an instant see what they’re missing. I have found when I’m assigning an opinion that it’s the perfect balance in highlighting the most important parts while trusting the student to know when that extra context would be helpful.
I think it’s also helpful from the teacher’s point of view to not have to choose between creating the entire course from scratch with bespoke materials on the one hand, or just saying alright here’s my textbook and the biggest thing the teacher is deciding is which pages to assign. Instead, H2O allows me to look at several different casebooks on, say, torts, and then drag and drop the sections I want to use to build a syllabus that I can further adapt and balance for my students. By leveraging H2O content that has been created previously, faculty members can build a course that is much more tailored to what they want to emphasize and teach without that faculty member having to become an outright textbook author.
What changed, if anything, about your teaching once you started using H2O?
One thing that I cherish about H2O is the ability to pull up the case at the time people are talking about it. When a student would say, ‘I think so and so said such and such,’ I can ask, ‘great, where in the case do you see that?’ And I can search for it in the case right there on the screen, jump to that part of the case, and we can all read it together. In law, where we put great weight on the text itself, to be able to have the case on the screen and get everybody used to talking about it, scrutinizing it, and highlighting it as we go feels much more tactile and interactive than each of us just having the books in front of us and leaning over them separately trying to find the passage.
What do you see as some of the greatest benefits to open legal education resources like H2O?
I think the biggest benefit of open legal education resources like H2O is the ability to explore ways of building and sorting knowledge that aren’t mediated through market transactions. Markets can be magical, but they’re not the only way to get stuff done in the world. So much of what we’re trying to capture as educators in many academic disciplines is a flavor of the joys of being a practitioner in that discipline. This is not typically reflected in textbooks, which are by design static and meant for broad audiences.
What projects like H2O can encourage is the development of educational communities around ideas, exchanging new ideas in ways that aren’t just suggestions to one another but examples for others to take or leave as they please in the form of an openly-licensed and easy to manipulate casebook or playlist. To have the technology make that labor easy is a liberating way to think about the community of practitioners and scholars that we want students to become a part of. Having made the texts of all the cases available through the Caselaw Access Project, and then to build, ideally, nearly invisible technology so that you can quickly assemble, edit, share out, and collaborate with others, is giving community its best shot as a modality at the table alongside markets.
H2O makes it easy to adjust material - how do you see professors being able to leverage that in their classrooms?
In a first-year law class there’s a heavy proportion of cases that are the tried and true old favorites. Cases might be in there from the 19th century that sometimes are meant to trace the evolution of a doctrine - in which case having the historical primary sources is really quite something - and other times it might be a form of, well, if it was good enough for me it’ll be good enough for you, too. But there can be a real question of how to make a course more contemporary or more connected to students’ existing lives and concerns. There may also be opportunities to tailor a course towards law and ‘blank,’ whether it be law and economics, law and gender, law and race - topics that have changed and interacted with the law in lots of different ways over time. With H2O which is very easy to change and update, instructors may address these concerns and topics by having one module that speaks to a specific area of the law, or they may choose to season an entire syllabus with different cases that illustrate some of those law and ‘blank’ dynamics.
How else do you hope to see the H2O platform and community develop in the next 3-5 years?
It would be great to see an entire first year curriculum with lots of variations and flavors available to choose from. It could include classes large and small, different interpretations of old standbys like corporations or constitutional law, and then nifty syllabi for interesting mash-ups of classes or areas of inquiry that are so small that they couldn’t yet support the market for a casebook. And here you could build different variations on what individuals have found to be compelling in those less trafficked areas.
I’d also love to see new linkages among faculty at different schools so that there’s a neat way of giving and earning credit from others. This might take the form of automatic genealogies that allow faculty to say, ‘I put together some materials and now those materials are featured at 40 some schools.’ If we could start to track and show some of that, it could become a really compelling way of showing your tenure committee or your colleagues that assembling a widely used H2O playlist is every bit as influential and important as the kinds of traditional scholarship that tend to be valued more highly in those contexts.
What advice do you have for other professors considering using H2O?
There are plenty of ways to dip one’s toe into the water. An instructor may use it to add supplemental materials to the textbook assigned. If they are going to give up the book they assigned and adopt an H2O casebook wholesale, there’s an ability to fairly easily create a print-on-demand casebook by mixing and matching from existing books on H2O. For professors who are especially concerned about their students having a tactile, physical book, they can follow that process to provide a book to their students for $30 or $40 instead of $300. The students may never see H2O, but they’ll know they have a textbook that better reflects exactly what their teacher means to teach and that this better tailored casebook saves them hundreds of dollars.