Keyes, M; Johnstone, R --- "Changing Legal Education: Rhetoric, Reality, and Prospects for the Future" [2005] LegEdDig 27; (2005) 13(4) Legal Education Digest 15

Changing Legal Education: Rhetoric, Reality, and Prospects for the Future

M Keyes & R Johnstone

[2005] LegEdDig 27; (2005) 13(4) Legal Education Digest 15

26 Sydney L Rev 4, 2004, pp 537–564

The purpose of this article is critically to assess the nature and extent of changes which have occurred in Australian undergraduate legal education since the late-1980s. The authors argue that change has been uneven, often temporary, and has struggled entirely to transcend the traditional model of legal education. They then argue that there are significant impediments to change in Australian law schools: in the form of demands of students and the legal profession; the unwillingness of many academics to look beyond protecting their own subjects to engage in broader collective curriculum development and to engage with the educational literature; and the inadequate resourcing of law schools. We conclude with some key challenges facing tertiary legal educators.

Understanding the traditional model of legal education is necessary in order to enable us to identify and understand the factors which have affected and limited change, and provide a background to the authors’ suggestions as to some desirable developments for the future of legal education. The traditional model has five dominant characteristics.

The first characteristic is the teacher-focused nature of legal education. Teachers are not required to have any qualifications in teaching, and very few teachers have any familiarity with the literature on learning and teaching. There are three negative consequences of the teacher-focused nature of traditional legal education. The first is that it leads governments and universities to believe that legal education is inexpensive to provide. Second, students are treated amorphously and as though they are homogenous. The third consequence of the teacher focus is that students’ experience of learning is not taken seriously. The assumption is that if the teacher teaches, then the students will learn: if they do not do so successfully, it is the students’ fault.

The second characteristic of traditional legal education concerns what is taught. Traditional legal education is almost entirely concerned with the transmission of content knowledge and, more particularly, with teaching legal rules, especially those drawn from case law. The traditional law curriculum gives little express consideration to generic skills or legal skills, ethics, theory, attitudes and values, interdisciplinary perspectives on law, or the international aspects and implications of law and legal practice. The third characteristic of the traditional model is the strong conviction that law is an autonomous discipline; quasi-scientific in nature. Lawyers have little, if anything, to learn from other disciplines and interdisciplinary studies are regarded as having limited value, at best.

The fourth characteristic of traditional legal education is the close relationship between legal practitioners and the academy, with the dominant consideration in curriculum design being the responsibility of the academy to prepare students to work in the private legal profession, thereby uncritically endorsing and perpetuating the status quo. The fifth characteristic is that the law school experience is individualised and isolating for both teachers and students. There is little room for collaboration with other teachers and students are given no opportunity in their formal education to learn from and with each other.

Modern learning theory indicates that teachers’ expectations should be clearly explained in terms which are readily understood and applied by students. Good teaching requires teachers to engage with students at their own level of understanding, motivating them to learn by stimulating their interest in the subject. Rather than being remote from students, and treating them as homogenous, teachers should respect students, be aware of diversity in the student body, and respond to that diversity appropriately in the selection of teaching material and activities. Student diversity relates not only to gender and racial, social and cultural background, but also to different learning styles, which has clear implications for the selection of learning activities and assessment. Finally, one of the most important implications of the student focus mandated by modern educational research is that students’ experience of learning should be closely evaluated by teachers, and that appropriate modifications to teaching should be made in the light of that evidence.

Law schools have, due largely to the commodification of higher education, become even more vulnerable to the demands and expectations of students and employers of law graduates. Market pressures, including student demands for greater flexibility in teaching arrangements and accelerated progress through the LLB program, have resulted in most law schools adopting intensive modes of teaching. There has been a notable change in thinking about the objectives and substance of legal education in the last 20 years. During the 1980s, law schools began to move away from their traditional ‘trade school’ approach, towards the classic, liberal model of university education. Whereas in the traditional law curriculum the teaching of skills was confined to legal analysis and reasoning, legal research, legal writing and mooting, as a byproduct of teaching in substantive law subjects, most law schools now pay greater attention a wider range of skills, although there is still disagreement about the importance of practical legal skills.

The corporatisation of universities has led to the perception of students as consumers. This perception legitimises student demands as to the content and delivery of the law curriculum and exposes the vulnerability of some law schools to these demands. Although some student demands are justified and require attention in curriculum development, others may undermine important educational goals. The less well established law schools may be driven by actual or perceived student demand to alter their programs and subjects in ways which are not necessarily desirable — for example, as some law schools have done, to permit school leavers to undertake a straight law degree, or to minimise or exclude the kinds of topics and skills which some students perceive as irrelevant to legal practice.

At the level of individual teachers, two factors inhibit change. The first is individual teachers’ concern to protect the status quo with their subjects, based perhaps on a combination of insufficient resources, increasing workloads and inertia. The second factor which prevents teachers from advocating and implementing profound changes to legal education is a general lack of awareness of or concern for the educational literature, its implications for teaching practices, and an actual or perceived inability to implement change.

Legal education must be about much more than a narrow, teacher and subject matter focused approach to learning the law; it must also be about more than merely preparing students for work in private legal practice. The challenge for law schools is to embed, or integrate, legal and generic skills, ethics, and legal theory within their law curricula, so that law students are provided with a coordinated and incremental approach to developing their knowledge and skills. Teaching and learning theory provides useful principles, or guidelines, to help law teachers move away from the traditional teaching as transmission model to a student-focused approach which helps students to construct their own knowledge by engaging deeply with learning through activities.

One of the greatest challenges for the development of legal education may be to redress the present focus on individualism, as it affects both students and teachers. Individualism is pervasive in legal education, both in terms of how legal academics work and in terms of how students learn and are assessed. Even if individual teachers are willing to incorporate cooperative learning into their subjects, they are likely to meet resistance as most students are socialised into individual learning in pre-tertiary education.

Although recent changes to legal education appear impressive, this impression is largely formed by reference to the low benchmark provided by the traditional model, which has dominated legal education in Australia for far too long. The existing debate about the future direction of legal education is certainly progressive in part, challenging to the academy, and provides much scope for improvement. However, this debate is framed by an assumption which prevents real progress: that the dominant purpose of legal education is preparation for legal practice. Even more problematic is the limited extent to which this debate engages with teaching and learning issues — questions about what good teaching is, and how it is necessary to enrich an understanding of law and to promote student learning.