Kift, S --- "21st Century climate for change: curriculum design for quality learning engagement in law" [2009] LegEdDig 4; (2009) 17(1) Legal Education Digest 10

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21^st Century climate for change: curriculum design for quality learning engagement in law

S Kift

18 Legal Educ Rev, 2008, pp 1–30

Recent decades have witnessed dynamic change in the working environment of 21st century lawyers: legal practice has been transformed by external drivers such as globalisation, competitiveness and competition reform, information and communications technology, and by a determined move away from the adversarial system as the primary dispute resolution method. Similarly, the higher education sector has been subjected to relentless change from a range of (remarkably comparable) external drivers, and particularly by the demand that our students now graduate with a profile of knowledge, skills and attitudes that include, but go beyond, the disciplinary expertise or technical knowledge that traditionally formed the core of most university courses.

Legal educators face significant conceptual challenges in meeting persistent demands for curriculum innovation within new quality assurance frameworks. Further, at a time when higher education has renewed its focus on learning and teaching professionalism and the quality of the student experience, the current fraught reality for all — academics and students alike — is that we need to be more effective and efficient in our daily practices and educational engagements.

The changing patterns of student engagement or, perhaps more accurately, the effects of widening participation and the potential for student disengagement, have been subjected to considerable sector-wide investigation and reflection. Much international research has been conducted around (what is generically termed) the ‘first year experience’ (FYE) of commencing undergraduate students and the reasons behind instances of higher education non-completion. Most recently, in the United Kingdom, Mantz Yorke and Bernard Longden, reporting for the Higher Education Academy (HEA), found that, while a number of issues affecting student engagement and retention remain outside our institutional control, major factors are discernible as:

• the quality and organisation of teaching;

• program difficulty and students’ lack of preparedness to cope with it;

• poor choice of program, including lack of vocational relevance (specifically, it was found that 40 per cent of students who had little or no prior knowledge of their program considered withdrawal, whereas only 25 per cent of their better informed peers did so); and

• student worry over financing of their studies.

Yorke and Longden found broad similarities between the United Kingdom experience and the FYE of Australian students. The most recent Australian FYE data suggests that students will consider withdrawing because of a ‘complex interrelationship between course dissatisfaction, course preference, limited engagement, and student perceptions of academic staff and of the quality of teaching’.

Further, today’s students, who pay for their higher education and are ‘highly anxious about ... the debts they are accumulating’, will routinely go through several changes of career in their working lives, while research has consistently shown that only 50 to 60 per cent of law graduates will remain in longer term legal practice. As long as a decade ago, Sumitra Vignaendra identified that the most frequently used skills by law graduates in any type of law related employment were those of communication (both oral and written), time management, document management and computer skills. Legally specific skills, while important to private professional practice, were not the most frequently used.

If law schools are to produce globally portable citizens, able to engage effectively with knowledge generation and management in increasingly diverse and globalised workplaces, then their curriculum design and pedagogy must intentionally equip graduates with the knowledge, skills and attitudes required to self-manage learning for an unknowable future.

A further impetus to reconsider the validity of any heavy doctrinal emphasis in law curricula is the inexorable push, coming variously from government, employers, professional associations, students and, in Australia, from universities themselves, to equip students with ‘graduate attributes’. Graduate attributes have been defined as ‘the qualities, skills and understandings a university community expects its students to develop during their time at the institution and, consequently, shape the contribution they are able to make to their profession and as a citizen’.

In the decade since the West Review in Australia in 1998, almost every Australian university has defined these attributes and sought to integrate them into core curriculum in various ways.

Effective integration of skills and attitudes into learning and teaching design delivers higher quality learning outcomes for students (by explicitly equipping them with the intellectual rigour to use their technical knowledge to do what the modern workplace demands of them). It further secures a robust foundation for future careers and citizenship in the knowledge economy, where graduates will be continually challenged to learn and engage with new ideas that extend beyond the content of their university courses.

Against this background, the question must be asked whether legal education has kept pace with the climate that has changed so dynamically around it — the constitution and engagement of student cohorts, the globalised world of work and the growth of the knowledge economy, and movements in higher education thinking and practice.

It should be noted that there has been no shortage of advice and examination of these issues in the legal context. From as early as the 1970s, a plethora of reports has been produced across many jurisdictions (for example, the United States, England, Australia, Scotland, Canada, Hong Kong), most of which have exhorted a reorientation of the traditional approaches to legal education, essentially from a content focus and towards skills and values acquisition and training. With the exception of some interesting developments in the area of transnational legal curricula, by and large the international academy has paid scant regard to this building clamour for curriculum transformation (though the Australian response has probably been the most positive). As a result, the more recent analyses have started to criticise the academy’s reluctance to embrace change. In particular, two 2007 reports out of the United States — one by the Carnegie Foundation for the Advancement of Teaching, in its professional education series, entitled Educating Lawyers: Preparation for the Profession of Law (the ‘Carnegie Report’) and the other by the United States Clinical Legal Education Association entitled Best Practices for Legal Education: A Vision and a Road Map (the Best Practices Report) — have focused a great deal of international attention on desirable approaches to curriculum and course design in legal education, particularly in the United States context, but with an accompanying analysis that is easily transferable to other jurisdictions. Finally, a number of reviews are current even at the time of writing, perhaps most significantly in the Australian context, the Council of Australian Law Deans’ (CALD) initiative around the setting of Law School Standards for quality assurance and benchmarking purposes, and the associated formation of a Law Schools Standards Committee.

Broad, recurrent themes evident in the discipline reviews of law include:

• Emphasising that what lawyers need to do is at least as important as what lawyers need to know — a rebalancing from traditional content focus to skills and values acquisition — and that legal education should be underpinned by a pervasive approach to legal professionalism that facilitates, inter alia, reflection on ‘the values of the [legal] culture’;

• Recognition of the effects of changing patterns of student engagement and the diversity of commencing cohorts;

• Reference to deeper understandings of the nature of student learning and the facilitation of active learning, which have demanded a more professional approach to university teaching;

• Recognition of the impact of internationalisation and globalisation on legal education;

• Encouragement towards a more liberal education that embeds contextual, interdisciplinary and theoretical approaches in core curriculum;

• Alarm at the widening disjunct between the academy and practice and calls for their re-integration; and

• Concern at the lack of attention paid to the continuum of legal education and its staged articulation — from law school, through the Legal Practice Course (LPC), and into Continuing Legal Education (CLE) — as a lifelong and life-wide process.

A constant refrain, hinted at in many of the above, is the perpetually uneasy relationship between the study and the practice of law: at one level, the aspirational balance to be struck between a liberal education and the knowing, the doing, and the practice — between the academic and the vocational — and, at another, more practical, level, how the ‘contexts of actual legal practice’ might more efficaciously be enacted in contemporary curriculum design. Too many schools rest easy with the status quo and have declined to embark on an informed and principled reconsideration of the law degree’s program objectives, its contemporary role in the formation of professional identity, and how it prepares students for global citizenship and the modern world of work.

In these various ways, the law curriculum might be reconceptualised as a broad-based liberal (legal) education that will prepare students for the 21st century workplace and practice, and as ‘intellectually and morally responsible citizens’. Integrative curriculum approaches suggest that when we claim to inculcate our students with the cognitive habits of ‘thinking like a lawyer’, such an outcome is not to the exclusion of ‘thinking like a lawyer in practice settings’ nor alien to a concomitant interrogation of what it is to assume the lawyering role and deploy lawyering capabilities responsibly.

If we can agree that the purpose of the law degree is to embed knowledge, skills and attributes (underpinned by pervasive professionalism) for student whole-of-program development and acquisition, then it is trite but true to require that the curriculum response must be systematic, coherent and comprehensive.

As Queensland University of Technology found when it embarked on this type of major curriculum renewal in the late 1990s, it was necessary to map the integration of knowledge, skills and attitudes in an incremental way across the entire degree program and then turn to assuring the valid alignment between what was being taught, how it was taught and how that learning was assessed.

This whole-of-program mapping is now a process upon which almost every law school in Australia (and certainly most disciplines in the sector) has either embarked or is currently implementing. Broadly, this curriculum approach starts with a whole program matrix onto which the discipline’s desirable knowledge, skills and attitudes are carefully mapped for multiple learning opportunities and contexts, which increase in complexity over the course of the degree program.

Curriculum renewal of this magnitude is complex and a significant culture shift for staff, students and employers alike, pockets of whom may be resistant for various reasons that require careful change management.

Academic workloads in a research-intensive environment, where scholarly teaching and the scholarship of teaching are still not necessarily well understood or valued, is a major constraint, the amelioration of which requires significant ‘learning leadership’.

A useful strategy is to use integrating devices across the law degree, including, for example: teaching teams working across years to ensure incremental development for increasing complexity; the provision of multiple opportunities and contexts across the program for students to develop and enhance their acquisition of learning objectives; the harnessing of learning, teaching and assessment approaches for integration; and the engagement of relevant stakeholders in the process, including the profession, sessional teaching staff, graduates and students.

More recently, some newer curriculum imperatives have also presented; specifically, the articulation and enactment of the teaching/ research nexus, and the desirability of building in more opportunities for both peer-to-peer interaction, and the harnessing of the ePortfolio — akin to the United Kingdom’s Personal Development Planning (PDP). Given continuing massification and the diversity of the entering cohort, it is also incumbent upon us to pay greater attention to the early and intentional development of our students ‘tertiary literacies’ (in the legal context especially, the academic literacies of skills in reading, referencing, listening, writing, and presenting orally — though information and computer literacies are also relevant — and, increasingly, cultural literacy).

In the modern age, it would be further remiss not to refer to one final area deserving of our consideration: creativity. Business literature and economic policy now make frequent calls for enhanced ‘creativity’ in the workplace, while innovating on the basis of creative ideas is a key aspect of recent knowledge economy discourse. While no definitive definition of ‘creativity’ has yet emerged, it has been suggested that ‘creativity embodies generic attributes including communication, team-work, problem solving, cultural understanding, and decision making skills’.

In this regard, it is important for us not to conflate critical thinking and problem-solving skills (with which legal educators claim familiarity) with creative thinking; though it may well be that the higher order, abstract ranges of the former skills stretch towards the creative capability.

Preparing our graduates for modern citizenship and the 21st century workplace requires significant qualitative, if not transformative, change to our current learning, teaching and assessment practices. It is what the student does (as opposed to is) with the various resources and inputs they are given — how they construct their own understandings and new knowledge, ways of doing and professional identity — that is critical.

Legal educators will need to be newly skilful in their design of these learning-centred approaches and embrace the understanding that ‘[l]earning takes place through the active behaviour of the student; it is what [they] do that [they] learn, not what the teacher does’.

Critical to the efficacy of any pedagogical approach adopted is how we frame our assessment practices.

Once we settle, finally, the objectives and purpose of the law degree, the alignment question for us to address is — what do we really expect our students to learn, to do and to value and how do we best assess for that?

In adopting the various integrative approaches suggested here, an underpinning philosophy should be an intention to manage the entirety of the student experience proactively for engagement, satisfaction and learning success.

The possibilities around these ideas for harnessing and linking curricula and co-curricula domains to inspire, motivate and engage law students is currently an underdeveloped area of legal education. Similarly, learning framed as an active and collaborative social experience with other students and teachers could and should be exploited with greater intentionality.

In the United States, John Gardner has urged a focus on reflection, integration and closure as a mechanism to improve the ‘senior year experience’ to support student success and transition to life after graduation.

Carnegie contextualises this thinking to legal education by advocating the provision of a capstone opportunity, in the final law year, for students to ‘develop specialised knowledge, engage in advanced clinical training, and work with faculty and peers in serious, comprehensive reflection on their educational experience and their strategies for career and future professional growth’.

Most students enter law school naturally idealistic and positive about their legal future and with a degree of altruistic intent regarding the potential value and meaning of their prospective lawyering work. Unfortunately, the tradition has been for law school to quickly instil an ethos of lawyering replete with the negative messages Carnegie has identified, leading many students to conclude that they must set aside their values, compassion, and moral and social consciousness as aspects more likely to hinder than help ‘successful’ lawyering or, at best, as secondary to it.

Implementing a new vision for a liberal legal education that will better prepare students as professionals and citizens for the modern (legal) world will require leadership and moral courage from us all. But the choice is either leadership for responsive integration or the perpetuation of disengagement for contemporary professional irrelevance into which we will sink in the face of a perfect legal education storm.