AustLII Home | Databases | WorldLII | Search | Feedback

Legal Education Digest

Legal Education Digest
You are here:  AustLII >> Databases >> Legal Education Digest >> 2013 >> [2013] LegEdDig 38

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Bemellen van Gent, E V --- "Legal education: a new paradigm" [2013] LegEdDig 38; (2013) 21(3) Legal Education Digest 22


Legal education: a new paradigm

E V Bemellen van Gent

Bynkershoek Law Review, 2012, pp 2-18

In the past, between the years 1800 and 1950, legal education was a local, generalist, apprentice- based, non-corporate, and highly academic self-explanatory affair. Most of the legal professionals regarded themselves as involved in ex-post private law and criminal litigation/trials. Legal theory and the curriculum, correspondingly, could focus mainly on local private and criminal law contained in approximately 10,000 pages.

At the start of the 21st century a number of things have changed. Around 100 specialised areas of legal theory and practice have emerged, along with millions of pages of new material. The sources of these new rules are increasingly international and regional, especially in Europe. The legal profession has also industrialised. The sole practitioner is outnumbered by legal professionals that are mass producing legal services and legislative instruments, as well as adjudicative products. Client demand has changed the emphasis to be more focused on ex ante: preventing disputes. Employers are expecting more than ever that graduates are well on their way through this increased volume of material, plus well versed in critical thinking, advocacy and research techniques. Moreover, in the countries where legal education is subsidised, universities are expected to educate more pupils for less money, plus accepting lower entry qualifications favouring historically less privileged groups. This process includes attempts, again especially in Europe, to harmonise the higher education degree structure across states.

Law school traditions have not responded to these developments yet. The curriculum and teaching techniques have remained largely the same as in the 1800 to 1950 era.

The time is ready to change legal education drastically. To guide and justify that change, a modern, 21st century paradigm is required, addressing what the legal profession entails, what issues the legal profession deals with and what legal competences are required, to solve legal problems cheaply, efficiently and in a client friendly manner. Such a new paradigm should also provide the necessary assessment criteria evaluating which law graduates may be permitted access to legal practices, including the various professional bodies’ admission procedures but also corporate hiring practices for junior and senior positions.

The debate will improve if we acknowledge that law school prepares for more legal professions than that of the attorney-at-law/solicitor/barrister or equivalent. I will therefore give a new definition of the legal profession (A). Furthermore, to assess the value of any proposed changes in legal education I will provide a short overview of the changes in the profession, society, young employees and employers (B), as well as changes in learning methods (C) in order to identify the problem to which eventual changes might be the answer. This answer is Law School 4.0: a newly designed all inclusive law school that prepares for all junior positions in all Legal Practices (D). As guideline to the required outcome of such new curriculum I present to you a new efficient competence matrix (E). I conclude to present to you a selected list or ‘canon’ of legal issues that forms a method to determine what the content of (initial) legal education should be (F).

Putting the citizen that undergoes a legal system, or putting the customer of legal services at the heart of the reasoning, I have to re-define the word legal profession. In doing so, I argue that all persons that as a normal day job produce legal products (objective criterion) and regard themselves as jurist (subjective criterion), are to be considered Legal Professionals. On this point, I am inspired by the variety of ways people become a jurist on the globe: from eight years of state funded and examined academic legal education to no legal education at all, from a heavily regulated and test based mechanism to a liberalised market mechanism.

This definition requires also a definition of Legal Product: a piece of writing or oral presentation that deals with legally relevant facts and questions, that engages with sources of law to answer these questions and that comes to conclusions that focus on legal consequences, like ‘guilty or ‘innocent’ (in criminal law), ‘liable’ or ‘not-liable’ (in contract and tort law). A top twelve of Legal Products is:

(1) advice letter; (2) advice meeting; (3) summon letter; (4) indictment; (5) writ; (6) court pleading; (7) court judgment; (8) contract; (9) deed; (10) legislation/act of parliament; (11) executive branch directive/order; and (12) academic article.

Legal Professionals are further to be categorised as working in four distinctive practices. These four Legal Practices are: (1) Governmental Legal Practice; (2) Private Legal Practice; (3) Corporate Legal Practice and (4) General Interest/International Organisation Practice. The distinction between these practices lies in the interest each practice represents, ranging from that of the state, the individual person, an enterprise and the society at large respectively. Furthermore, the distinction in four practices helps to identify the requirements or competencies a Legal Professional should have. All in all, these definitions helps to approach the following discussion on the Legal Profession from a broader perspective than the ‘JD or LLM plus bar exam’ perspective.

The key question is when a person should be allowed to act as a jurist and to produce Legal Products, given the reality that this question matters in the light of the effects wrongful Legal Products can have on the lives of people. Why is this question a relevant question? Because the landscape changed dramatically, both in terms of the expectations of all Legal Practices and in terms of the expectations of the society. I argue that the current system of couple of years legal education and a bar exam does not satisfy these expectations and needs, as others argue also.

The changes in the Legal Profession I refer to are (1) the increase in total numbers of Legal Professionals; (2) the increase in the use of legal services by the communities on the globe or the awareness that relationships could be seen through a legal perspective and corresponding procedures; (3) the democratisation of legal knowledge through the internet; (4) the increased service level demand of customers due to among others email; (5) the tendency to create Legal Products in teams; (6) the tendency to specialise in niche areas of law; (7) the increase of transnational aspects in many Legal Practices; and more generally (8) the hope of each employer that candidates are ready to produce value as of day one.

From the perspective of the society I can add moreover (1) the expectation that Legal Products are taking the socio-economic situation or cultural sensitivities into account; (2) the expectation that in the creation of Legal Products knowledge and insight of other disciplines are taken into account; (3) the expectation that for instance judges avoid tunnel vision or narrow-mindedness in their appreciation of evidence; (4) the expectation that also disadvantaged persons can have access to justice; (5) the expectation that Legal Products should be cheaper; and more generally (6) that the Legal Profession is becoming more and more demystified. Moreover, the expectations expand also in the area of compliance with (7) United Nations standards; (8) good citizenship; and (9) ethical standards.

Now that we will discuss legal education today, I wish to add the expectation of students also: (1) to have a dynamic student time; (2) to be enlightened; (3) to meet depth; and (4) to be prepared for a job as Legal Professional. And expanding into the early years of a career, young Legal Professionals expect job satisfaction in terms of (5) realisation of personal goals; (6) adherence to ethical standards; (7) room for flexibility in working hours; and (8) flexibility in changing to other Legal Practices.

In the long list of expectations towards Legal Professionals, the expectation of each employer may not miss: (1) analytical skills; (2) creativity; (3) experience (or wisdom); (4) knowledge of relevant areas of law; (5) research and learning skills; and in broad terms (6) professionalism.

The scope of this article does not allow to dwell on the pedagogical innovations of the last few decades. I focus on learning outcomes. And I focus on problem based learning in the sense that I present to you today, a method, a ‘canon’, how to identify problems, read: legal issues, that should be included in (initial) legal education, with the exclusion of other topics, ultimate to the detriment of current faculty structures.

I do compare law school to other professional education, like music conservatories. Very telling, the success of that education is measured 100 per cent on the outcome: is the graduate able to perform Mozart & Beethoven to the liking of the public or not. Similar to that, also graduating jurists should be able to have the equivalent outcome: to produce Legal Products in a competent way, regardless whether that legal education is labelled undergraduate or graduate, LLB, LLM or JD, and/or regardless whether it takes three, four or five years. The alternative is less persuasive, being the outsourcing of important parts of the legal education to the employer, who translates the costs of same to unjustified or at least undisclosed higher prices of the Legal Products.

In general terms the legal industry has produced a few standards in the context of learning outcomes. I refer to the recent Carnegie 2007 Law School Report and the European 2002 Dublin Descriptors, with respectively three general standards (Analysis, Skills, Ethics) and five standards (Knowledge, Application of Knowledge, Judgment, Communication, and Transfer). Although these standards for learning outcomes are appealing and cover indeed the essence of the legal education, both are too broad to function as a guideline, and lack any system related to the actual work in Legal Practices. As alternative I present here the Bynkershoek Competence Matrix, which could function as such general concrete guideline for law schools. Each competence is defined as a cluster of knowledge, skills, insight and attitude.

This matrix can be visualised by a Greek temple, with General Professional Competencies and Language as fundament. The columns of the temple represent Legal Analysis, Legal Advice, LegalRepresentation and Legal Regulation. The roof of the Greek temple consists of Legal Products and Legal Professionals.

Legal Analysis, the thinking as a jurist, is one of the universal features of the Legal Profession. Not un-similar to the tradition of all judges, being a central Legal Profession, this Legal Analysis consists of the diagnosis of the legal issue, with the determination of the legally relevant facts and legal relevant questions. Subsequently, the applicable law is identified and through deliberations and by testing the elements of the legal rules on the facts, it is established what answer to the legal questions should be given. The Legal Analysis ends with the important step of a jurist to come to a decision or conclusion. Another description of the steps of Legal Analysis is the abbreviation IRAC (issue, rule, analysis, conclusion), used in North American Law Schools.

The first result of Legal Analysis is the competence of Legal Advice. In this category the letters of advice and advice meetings fall. The second result of Legal Analysis should be Legal Representation. In this category the summons, indictments, writs, pleadings etc. fall. Subsequently, many legal problem or procedures end with the competence of Legal Regulation. This category consists of Legal Products as judgments and legislation/acts of parliament, as well as contracts, deeds and other arrangements between private actors.

No system without exceptions. If no concrete interest is at stake or in all other situations that these three competencies do not cover the work of a Legal Professional, the competence of Other Legal Products & Research is available. This competence consists of Legal Products like academic articles, objective writing within a legal organisation (memorandum) etc.

It is not so difficult to imagine the specific characteristics of these competencies, since they appeal to both the process of analysis in the Legal Profession as to the production of Legal Products.

Obviously, and almost not contested, the heart of each Legal Professional consist of knowledge of the law or the knowledge of potential answers to legal questions.

What do we mean with that, now that more than 100 times more law and laws exist since the design of the current law school system, now that most law graduates do not remember precise parts of the law that was taught in law school anyway? How should we make a selection out of the about one million legal issues and rules that can exist in any given jurisdiction?

In quite a few jurisdictions this question is partly subject to the regulatory framework of the profession of bar licensed lawyers. There, constitutional law, criminal law, contract law and tort law, both substantive and procedural, are the measure stick. But that only applies to the academic phase of legal education. In subsequent professional pre-bar-exam education other elements of the competencies are developed, like writing, advocacy and general professional skills.

I argue that a ‘canon’ of legally relevant issues would help this discussion, and allows to form Top-10, Top-15 or Top-100 lists that can guide the design of three, four, or, say, eight year curricula. The benefit of such ‘canon’ is also, that all types of issues are identified, prior to looking at the current status quo of law, which status quo depends on what parties now deem necessary to litigate on or what parliaments now deem necessary to legislate on.

The ‘canon’ of legal issues can be visualised by a gyroscope. In the centre of the gyroscope a disc appears, with on that disc the division on four Legal Practices. The axis of the gyroscope represents all the issues of human beings. One ‘gimbal’ of the gyroscope represents the issues of governments, one of enterprises and the last represents the issues of the society at large.

Issues of Humans: (1) Birth; (2) Family; (3) Food & Water; (4) Health & Education; (5) Property;

(6) Labour; (7) Housing; (8) Goods & Services; (9) Development & Expression; and (10) Death.

Issues of Government: (1) Status & protection people; (2) Territory (Defense of); (3) Constitution;

(4) Judicial Branch; (5) Parliament; (6) Administration & tax; (7) Other Agencies; (8) Health &

Education; (9) Criminal Justice; (10) Infrastructure; (11) Economy & Trade; (12) Development;

(13) Property (registration); (14) Reserve; and (15) Transnational cooperation.

Issues of Businesses: (1) Incorporation; (2) Organs; (3) Capital; (4) Investment – Research & Development; (5) Labor; (6) Markets; (7) Production; (8) Regulators; (9) Creditors; (10) Taxation;

(11) Corruption; (12) Corporate Social Responsibility; (13) Liability; (14) Insolvency; and

(15) Liquidation.

Challenges of Our Age: (1) Overpopulation; (2) Poor health; (3) Food & Water shortage;

(4) Endangered animals; (5) Climate change; (6) Energy crisis; (7) Weapons; (8) Corruption;

(9) Inhuman treatment; (10) War; (11) Poverty; (12) Gender inequality; (13) Freedom of belief;

(14) Access to education; and (15) Failed states.

As a summary of these legal issues I can mention: birth, death, health, labor, property and contracting as topics typically relevant for every individual person; I can mention the defense of the territory, the administration of justice, the collection of taxes and the fostering of economic infrastructure as classic domains of any government; I can mention the articles of incorporation, the issuing of shares, the responsibilities of agents, the development and distribution of products and services, the payment of taxes and the dealing with litigation as dominant legal issues around enterprises; and I can mention the potential over population, nuclear arms, shortages of water and food, wars, poverty, gender inequality and limitations to freedom of belief as issues of our time. In total this ‘canon’ lists 55 issues.

Each issue can be subdivided in corresponding legal questions: around the issue of birth, legal questions on the birthing itself, legal capacity and nationality can be asked; around the issue of property legal questions on acquisition, disturbance of neighbours and hypothec can be asked; around the issue of taxation, legal questions on the taxable subject matter, exceptions and collection can be asked. If all of the 55 issues are subdivided in three, the result is a first batch 165 legal questions and corresponding legal rules. As example, if you would want to give law students a one year introduction to relevant topics in the Legal Profession, and a year would be 40 study weeks, less assessment time, so say 30 lecture weeks, each week should then contain 5.5 topic, a bit more than one per day. If we would increase the amount of legal questions with 100 per cent we would end of with a bit more than two topics per day.

Faithful to the ambition to keep and foster the good parts of legal tradition, I argue that the order of these legal rules may follow the well-known division of areas of law we all know: public law, criminal law, private law, with all its subdivisions. I suggest repeating that division three times: one time for the international level, one time for the regional or federal level and one time for the state level. International level: Public International Law, International Criminal Law, Private International Law. Regional level: Public European law, European Civil Law, and European Private Law. National or State level: National Public Law, National Criminal Law, and National Private Law.

There are enough good reasons to innovate legal education, to contribute to the emancipation of the legal profession as global profession and to expect more of each and every Legal Professional. To that end it helps to stop talking about one Legal Profession, but to divide the profession in four Legal Practices, distinct in their interest, in who is paying and partly distinct in their products.

Furthermore, it is crucial to identify the competencies that are needed to produce these Legal Products in a 21st century fashion, paying tribute to the expectations of society, customer, young professional and employer.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/LegEdDig/2013/38.html