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Berns, Sandra --- "Through a glass darkly: legal education at century's turn" [2000] AltLawJl 102; (2000) 25(6) Alternative Law Journal 265

Through a glass darkly

legal education at century's turn.

Sandra Berns[*]

The Pierce Report[1] marked a watershed in legal education. It told legal academics (and others) what many had suspected for years — that overcrowded lecture theatres, rote learning, winner-take-all examinations and the time-honoured practice of recruiting local practitioners on a sessional basis to teach classes in their areas of expertise did not make for good education. While many of the most able students learned ‘in spite of’ legal education, many others, equally able, simply switched off. Student satisfaction, as measured by course experience questionnaires and by other mechanisms was minimal. Legal academics, long viewed as neither town nor gown, were neither highly regarded for their research expertise, indeed their work was often not seen as research at all, nor rewarded for their teaching and their ability to facilitate the learning of their students. While there were exceptions, and the pedagogical practices in some Australian universities were outstanding, these were the exceptions rather than the rule. For many universities, law schools were a useful ‘cash cow’, a convenient dumping ground for load arising from under-enrolments in other disciplines. Under resourced, because legal education was ‘cheap education’, lacking in research profile, legal education resembled one of Cinderella’s stepsisters.

Following the Pierce Report, many established law schools attempted (although hampered by pervasive under-resourcing) to radically re-evaluate their teaching practices and the content of their courses. New law schools appeared like mushrooms. The brief of several of the new law schools, including Griffith, my own, was to move legal education beyond the reductive rote learning which typified many law schools and to incorporate critical and contextual perspectives and a student-centred approach to legal education. A second, even more radical change was also beginning to take hold. Whereas once skills teaching had been largely confined to the time-honoured practice of mooting, and many law teachers assumed that legal reasoning and writing would (somehow) develop through the reading of cases and answering the ubiquitous hypothetical, skills teaching became increasingly important.[2] While this change in direction was welcome, it dramatically increased the cost pressures on many law schools.

Almost 15 years have passed since the Pierce Report. Legal education has changed, and changed for the better. The question today is not whether legal education can change, can become more involving and intellectually challenging for students and teachers alike, but whether those changes can be sustained in the face of the financial pressures facing the university sector.[3]

Some things have not changed. Law schools remain a useful ‘cash cow’ and a dumping ground for excess load in some universities. Funding, including library funding, is under increasing pressure, both from spiralling costs and currency fluctuations and from several rounds of unfunded enterprise bargaining salary increases. While some law schools, such as my own; remain well funded, increasing costs, particularly those associated with skills and clinical teaching, will ultimately erode that advantage unless new sources of funding can be found. New demands are becoming insistent — not least increasing pressure to secure outside funding — whether through funded consultancies and other research endeavours or through fee paying courses. In one response to these pressures, LLB degrees are being marketed as fee paying graduate entry degrees in several universities.

New educational technologies are emerging, for example, flexible learning, which have significant implications for time budgets and resources. Flexible learning is notoriously insusceptible to precise definition. While much of the current hype favours a technologically driven model, alternative modes of delivery including paper-based approaches remarkably similar to distance learning are also being styled flexible delivery. The unifying rationale appears to be directed towards making learning experiences available to students at the times and places that best suit them. While universities insist that flexible learning is not simply an upmarket term for distance learning and suggest that its aim is to replace the ‘information providing’ aspect of face-to-face teaching with student-centred flexible resources, much uncertainty and some scepticism remains.

In those law schools that have moved beyond lecturing as information delivery, many teachers are asking whether the ‘face to face’ modelling of legal and generic skills can be replaced with flexible modes of delivery without a significant diminution in quality. The purpose of education is to facilitate change and growth in the student. Some changes are tangible, others intangible. Skills development, the acquisition of both information and the habits of mind that facilitate ongoing learning and development are tangible and susceptible to more or less accurate measurement. The relational aspects of education, learning to work with peers in a collegial and professional manner, developing respect for persons, gaining a sense of social justice and responsibility for one’s actions and their effects are not tangible and are profoundly difficult to measure. These intangible qualities are fundamental to contemporary understandings of the lawyer as professional. They are also qualities that depend on face-to-face learning and therefore on an educational setting in which students engage with one another and with their teachers in intimate groups.

The increasing emphasis on the ethical aspects of lawyering raises further questions. Ethics and ethical education are both interactive and relational. For this reason among others, they seem potentially incompatible with many of the flexible technologies currently advocated. The Internet, despite its potential for exponentially increasing access to information, often distances people from their ethical sensibilities and reduces their inhibitions as the rise of Internet stalking and on-line romances illustrates. Once our understanding of the ethics of lawyering moves beyond a narrow emphasis on professional ethics and encourages engagement with broader issues, face-to-face teaching seems essential. One cannot fully engage students in debate over moral and ethical dilemmas without providing an intimate forum for those debates and for role-plays and other interactive mechanisms for extending understandings. How, in the long term, this can happen in ways that meet student and university demands for flexible learning is not clear.

The rush to flexible learning also places at risk the camaraderie that can be a positive side of law school culture. As more learning takes place online and students struggle to balance full-time courses with the demands of part-time employment or parenting, it is increasingly difficult to schedule face-to-face time for interactive teaching and for teamwork by students. In the final year of their degrees, the very time when students typically choose their electives, the evidence suggests that at least one-quarter are in full-time employment and many others are in substantial part-time employment, perhaps up to 20 hours a week. These students are eager for methodologies that facilitate combining work and study, but little information is yet available regarding the impact on intangible learning and on the ethical dimension of law school life. Initial experiments with flexible learning suggests that while students welcome the increasing control over their learning provided by flexible resources some, particularly the younger students, miss the extended interaction with their peers and with teachers. These changes, both in teaching methods and in the composition of the student population are at the core of the challenges facing legal education as we move into the 21st century. Our challenge ultimately will be to identify an optimum balance between ‘click’ and ‘brick’ and to discover means of sustaining that balance within the resources available.[4]

Each year the university sector is being asked to do more with less: less time, fewer resources, and fewer permanent full-time staff. Insistently, the message from government focuses on training and on meeting the demands of industry and commerce rather than on education and the collegial pursuit of knowledge. The message coming from government seems actively hostile to the kind of critical and contextual education that forms the core of our teaching practice, preferring readily quantifiable measures of core skills in literacy and numeracy to critical thinking and a concern with issues of social justice. There is ongoing political hostility to critical understandings of the rule of law with an emphasis on the centrality of access to justice and a more nearly representative judiciary.

Griffith: then and now

When Griffith Law School was founded in 1992, its pedagogical brief struck at the traditions of legal education. First, and perhaps most important, it rejected reliance on traditional doctrinal categories as appropriate and intellectually credible. In place of the time-honoured pantheon of doctrinal categories, the Griffith curriculum focused on thematic areas, the law of obligations for example. Second, legal theory was mainstreamed, no longer an add-on jurisprudence class, but an integral part of every core subject. Students encountered critiques of law as they were learning the law. They were encouraged to explore a variety of critical methodologies: law and economics, feminist legal theory, critical legal theory, rights-based approaches, critical race theory and to examine the law in its social and political context. Third, and even more radically, hands-on training in basic legal skills — mooting, client interviewing, negotiation and mediation, legal research — was integrated into core subjects in each year. Finally, integrated degrees replaced the combined degrees that had become standard. In core subjects throughout the first three years some assessment items were explicitly interdisciplinary. The fourth year joint theory subject was co-taught. Students engaged directly with theoretical issues relevant both to law and to their other discipline, further developing their interdisciplinary skills and preparing them for a final year research project on a self-chosen topic directly relevant to both disciplines. The interdisciplinary focus significantly increased the complexity of the degree programs.

The restructuring of the curriculum had a number of consequences. Many of the thematic subjects that resulted were much larger and more complex than the ‘standard’ one-semester 10 or 12 credit point unit. Contact hours were high. While the division between large groups (with a maximum of about 130 students) and small groups (with a maximum of 15–20 students) was retained, the large groups were not lectures but encompassed a variety of pedagogical approaches, including role plays, buzz groups and report backs. The primary aim was not information delivery, but modelling and experiential learning. Similarly small groups were not simply tutorials designed to revise and reinforce material presented in large groups and in readings, but introduced new material and encouraged students to explore it in a hands-on fashion. Again, a variety of pedagogical methodologies were employed and emphasis was placed on participation and engagement. Team teaching was the norm, and full-time permanent members of staff did almost all of the teaching. Continuous assessment was standard. Students were assessed on a wide range of written and oral exercises as well as the more usual examinations and research assignments. In leaderless (and teacherless) groups, called Offices, group exercises were the norm.

Both the degree structure and the assessment regime assumed abundant support staff and teaching loads that were largely stable and relatively moderate. Over time, we have learned to do more with less. Throughout the university sector, academic staff carry increasing administrative responsibilities. The ubiquitous PC may have liberated us from the drudgery (and sometimes indecipherability) of hand-written lecture notes, but it has also ‘liberated’ us from the secretarial support routinely available in the past. Inevitably, it has led to new expectations — for example that academics enter marks on spreadsheets for direct uploading into student administration.

Because of the complexity of our curriculum, sessional teachers, sometimes but not always postgraduate students, have become a necessity. The original teaching team model at Griffith was collegial, all teaching staff involved in the subject meeting regularly and working from a unified conception of content and approach. Marking was shared by team members and moderated to ensure equity. As sessional teachers join teaching teams, the task of coordination and moderation becomes more complex and more demanding, significantly adding to the administrative burden faced by subject convenors.

Through a glass darkly

While our original emphasis on integrated degrees rather than combined degrees and on the importance of a critical and contextual perspective remains with us, many things have changed. Increasingly, legal education at Griffith is differentiated, not simply by integration, but by its emphasis on carefully staged training in both legal and generic skills, by an extensive and recently expanded clinical program, and by a sustained effort to ensure that students explore the ethical aspects of lawyering from a critical and contextual perspective. From our origins as a single campus law school with an intake of 80 students in each cohort, we have matured to a two-campus law school with a total intake of 180 students. Next year, for the first time, it will be possible for all of our students to complete their entire degree at their preferred campus.

The composition of the student body is also changing, and becoming more diverse.[5] Some of these changes are heartening. Using standard measures, our intake of low socio-economic status (LSES) students is broadly reflective of the prevalence of LSES people in our catchment area suggesting that we are reaching a population traditionally under-represented in law school. More importantly, their progression and retention rates are similar to those of the student body as a whole, almost certainly because of our emphasis on student-centred learning and student support. The gender balance is also changing as women increasingly gain access to what was once a male domain. This year, quite remarkably, almost three out of every four commencing students were women. Although we do not yet know the reasons for this change, this is an extremely interesting development and suggests that Griffith is becoming an increasingly woman friendly environment.

Other changes are more typical of those throughout higher education and some are disturbing. Differential HECS and the penetration of the prevailing user pays philosophy into academia have altered student attitudes. Students are increasingly results oriented, outstanding results, particularly in ‘practical’ and ‘commercial’ subjects, being equated to employability. Increasingly we are teaching students who self-consciously position themselves as consumers and seek a particular kind of educational product. Some make it clear that they expect to be ‘provided’ with the required information and resist the inclusion of materials requiring critical thinking and the exercise of judgment, particularly where those materials challenge their beliefs about the nature of law. Involving students with this mind-set in a reflective educational practice that emphasises critical thinking and open-ended analysis and discovery rather than right answers is challenging and sometimes difficult.

Perhaps the greatest changes are those driven by technology and the burgeoning of the Internet. Technological advances and the explosion of on-line legal materials have transformed legal research. Much of this is enormously positive, allowing students to access legal information and conduct research in places and at times convenient to them. Inevitably, it poses new challenges. Equity of access to on-line information has become a critical issue. Some law students are among the information rich, having grown up with home computers and Internet access. Others are among the information poor, finding it necessary to rely on university-funded computer facilities and to compete for access. Finding a way to minimise the gap between the information rich and the information poor is critical.

The technological revolution, for all its benefits, also has a darker side. An increasing awareness of technology and its uses has created a generation of Internet savvy students, some of whom use Internet resources for plagiarism in their quest for marks. These ‘new’ forms of plagiarism are extraordinarily difficult to prove, given the array of resources available online and the difficulty inherent in identifying the precise resource misused. Some of my colleagues believe that the problem has become serious enough to require a further re-evaluation of assessment methods and an attempt to curtail reliance on assessment methods that lend themselves to this sort of plagiarism. The difficulty is this. In many subject areas, the forms of assessment most likely to challenge and extend students and to encourage critical and reflective thinking are those for which a determined student can locate online resources that can be appropriated without acknowledgment. While most law teachers are familiar with current literature in their areas of expertise and often recognise plagiarised materials from textual sources, the array of information available on the web and the forms of assistance available for a modest fee are vast. How we deal with this challenge while ensuring that assessment includes components that extend research skills and encourage critical thought is not yet certain. This particular challenge is one facing the university sector as a whole and is one about which we ought to be profoundly concerned.

Despite the difficulties and the pace of change, I remain heartened by our continuing progress in curriculum development and by the degree to which staff members remain committed to excellence in teaching and to the vision of a progressive law school. We have embarked on a staged review of our core subjects in all years of the degree to ensure that they continue to represent contemporary best practice and that learning is appropriately sequenced from year to year. Our review of our foundation subject has just been completed, and the committee responsible has recommended a number of structural changes to complement last year’s content restructuring. This process will be ongoing and designed to ensure that the core curriculum provides the best possible foundation for further learning.

Some four years ago, we undertook a skills inventory to ensure that skills were introduced at the most appropriate point in the degree and reinforced in subsequent years. Following the skills inventory, the ‘lead skill’ approach was implemented.[6] Each year now features a lead skill that is taught and reinforced in the relevant core subject or subjects. During their degree all students participate in at least four moots, learn the basics of client interviewing and negotiation and develop a working knowledge of mediation and conciliation. Skills introduced in subjects in the early years of the degree are revisited in later years, ensuring that they are developed and honed in a structured manner, the material in later years building on and refining that initially taught. Systematic education in both generic and legally specific skills empowers our graduates to work effectively in a variety of settings, both legal and non-legal, and provides a foundation for continuing learning.

Against the background of challenges to traditional conceptions of lawyering and concerns that law schools inculcate an adversarial mind-set in graduates, units on the ethics of lawyering are gradually being incorporated in all core subjects. Taking professional ethics seriously means taking it beyond the formal instruction in professional ethics and trust accounting required by the Priestly Eleven. Students must be encouraged to examine the ethical issues confronting lawyers and the community in the various areas of legal practice in which they are likely to engage. This will force them to confront potential conflicts between their responsibilities as barristers or solicitors and an ethical and critical understanding of lawyering. Increasing, the adversarial system is itself called into question. We continue to grapple with the implicit conflict between an adversarial mind-set, seemingly essential in preparing a case for litigation, and the increasing pressure to resolve disputes without recourse to litigation and to encourage conciliation and mediation. Our emphasis on the ethics of lawyering is designed to ensure that our students are aware of these potential conflicts and equipped to critically evaluate current practices while taking up their roles as professionals.

While the emphasis on legal and generic skills and on the ethics of lawyering add to the complexity of an already complex curriculum, these are essential for taking legal education forward into the new millennium. The skills and habits of mind we hope these will generate, while essential to those who embark on professional practice, are also of critical importance to those who pursue other career choices. They are also critical to those who may, in the future, play a role in reshaping the legal profession and making it more responsive to the needs of an increasingly complex community for which questions of access to justice are becoming acute.

While our small size is among our greatest advantages in providing a progressive and student friendly setting for teaching and learning, it is not without costs. Some years ago, we made a conscious choice to develop a high quality clinical program, one that has expanded significantly since it began. Students can currently access clinical placements in three programs funded entirely from law school funds and in two additional programs for which we have received funding from the Commonwealth Attorney-General. Our clinical program, building as it does on extensive skills training within the core curriculum, is an achievement of which we are proud.[7]

Shaping our non-clinical elective program within the constraints provided by student demand, the available resources and staff expertise and interests is an ongoing challenge. Demand for practice-oriented electives such as Commercial Law remains high as do student expectations that electives will be available that are relevant to their second degree. Balancing these demands with our conviction that certain electives are essential to an intellectually credible law school is challenging. Because students are enrolled in both law subjects and subjects in their other degree until their final year, many students are unable to take any elective subjects until late in their degrees, making it difficult to rotate elective offerings. Similarly, the challenging nature of our core curriculum with its emphasis on critical thinking and legal theory together with the fact that jurisprudence is compulsory has significantly limited the demand for theoretical electives. As a consequence, we find it difficult to offer some electives that might otherwise seem obvious, such as Critical Race Theory and Feminist Jurisprudence.

Inevitably our vision exceeds what it is possible to accomplish. We have succeeded in remaining innovative and in maintaining our commitment to excellence in legal education. Compared to many law schools, our annual intake is relatively small, facilitating learning partnerships between teachers and students and avoiding the anonymity that sometimes seems inevitable in larger institutions. Our size, and the nature of our curriculum gives us an ideal institutional setting for educating future lawyers to challenge existing institutional structures rather that to become complicit in sustaining them. Griffith remains committed to this vision, a commitment reflected in its curriculum and in our approach to teaching and learning. If we face difficult times, as do all law schools, particularly given the apparent hostility of the present government to education (as opposed to training), we do so with our academic program on track and with our collegiality and commitment to scholarship and to education undiminished.


[*] Sandra Berns teaches in the School of Law at Griffith University, Queensland.

[1] Commonwealth Tertiary Education Commission, ‘Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission’ (Pierce Report), Canberra, AGPS, 1997. See further, McInnis, C. and Marginson, S., ‘Australian Law Schools after the 1987 Pierce Report’, Canberra, AGPS, 1994.

[2] Kift, S., ‘Lawyering Skills: Finding their Place in Legal Education’[1997] LegEdRev 2; , (1997) 8 Legal Education Review 43. Kift provides a comprehensive review of the literature in this area.

[3] Clark, E., ‘Report: Australian Legal Education a Decade After the Pierce Report’, (1997) 8 Legal Education Review 213, offers a pessimistic view of the difficulties facing law schools in the face of this cost cutting.

[4] Harris, D., McLaren, J., Pue, W.W., Bronitt, S. and Holloway, I., ‘"Community without Propinquity" — Teaching Legal History Intercontinentally’, 10 (1999) Legal Educ Rev 1 offers a somewhat more sanguine view while acknowledging the limits of the new medium. See also Goldring, J., ‘Coping with the Virtual Campus: Some Hints and Opportunities for Legal Education’[1995] LegEdRev 5; , (1995) 6 Legal Education Review 91.

[5] Lustbader, P., ‘Teach in Context: Responding to Diverse Student Voices Helps all Students Learn’, (1998) 48 Journal of Legal Education 402 talks about both the challenges and the benefits of this increasing diversity.

[6] Giddings, J., ‘A Circle Game: Issues in Australian Clinical Legal Education’[1999] LegEdRev 2; , (1999) 10 Legal Education Review 33, 49–50.

[7] Giddings, J., above, pp.47–50.

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