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PACKING THEM IN THE AISLES: MAKING USE OF MOOTS AS
PART OF COURSE DELIVERY
ANDREW LYNCH *
INTRODUCTION
Post-Pearce Report,1 many Australian law schools
have moved to embrace the teaching of legal skills with an enthusiasm that few
could have foreseen prior
to 1987, or indeed, in the immediate aftermath of that
Report.2 In many instances, it has been the
fourth-wave3 law schools which have been at the
forefront of this development.4 The incorporation of
skills into the undergraduate curriculum has always been a source of great
concern and debate.5 The teaching of skills “on
the run” as it were, is often seen to necessitate a corresponding lack of
attention to the
teaching of substantive law or theoretical
perspectives6 and, as a result, true “integration
of skills development, skills theory and practice, into a holistic and effective
educative
process has proceeded slowly”.7 A
dismissive attitude to the old liberal education versus skills training debate
has been adopted by those who now argue that the
“existing challenge that
confronts legal education ... is the integration of doctrine, theory and
practice into a unified,
coherent curriculum”.8
Accepting this as the task presently facing legal educators, the underlying
purpose of this paper is to demonstrate, by reference
to an example of the use
of moots in a Constitutional Law subject, that skills exercises can be used to
good effect as part of course
delivery to all students — not just those
performing the skill at any particular time.
Usually the only audience which
mooters have, aside from the specially-constituted Bench, are those few friends
or family who come
along to lend their support. In some cases these people may
not be welcome and the moot occurs in camera, as it were. But even when
there is
an audience, there is little suggestion that they are intended to benefit in any
way by observing the moot. Their role is
normally confined to the curious one of
silent cheersquad. Certainly, the idea that those present should be able to (or
would even
be remotely interested in attempting to) follow the arguments made by
counsel seems to have been given little credence. The fact
that the spectators
are rarely, if ever, provided with any information concerning the moot problem
indicates the neglect of the benefits
of mooting to the audience.
This seems
to reflect a rather limited appreciation of mooting and its power as an
educational device. While it is widely acknowledged
that moots provide skills
training for those students involved, this paper argues that moot programs which
are run in the context
of a particular area of study may be structured so as to
enhance the acquisition of knowledge of the substantive law by both the
participants and the audience.
This idea has been tested by the author
in delivering the Constitutional Law course at the University of Western Sydney,
Macarthur9 over the last two years. The findings from
that experience support the view that a mooting program provides, not only an
educational
experience for the mooters, but also serves as a means of engaging
the interest of the spectating students in a substantive topic
by situating that
topic in a discipline specific context, and one which is very different from
lectures or tutorials.
THE COMMONLY PERCEIVED ADVANTAGES OF MOOTING
Before examining the educational possibilities that mooting presents when one
considers spectators, it is helpful to quickly revisit
the advantages of the
exercise for its active participants. It is widely acknowledged that students
gain a number of generic skills
from mooting.10 These
can be grouped under the umbrella name of “communication skills” and
include the ability to present an oral argument
(whilst being
interrupted),11 to be capable of conveying meaning
through written expression and also to work as a team with the various forms of
communication
that entails — notably negotiation and
explanation.12 Of course, the very legal nature of the
exercise ensures that mooters must be competent legal researchers and confident
in their
knowledge and use of legal language.
None of this is surprising and
all these benefits of mooting have been appreciated (at least implicitly) since
the practice of mooting
evolved at the Inns of Court several centuries
ago.13 However, in recent times, attention has been
given to the substantive content of moots and how the exercise encourages
interest in,
and retention of, that material.14 This
would seem to be the case whether the content of the moot has previously been
taught to students or is in fact being exposed
to them for the first time as
part of an exercise in problem-based learning and knowledge construction.
An
example of the former situation (which may be called “confirmatory”)
is the undergraduate tax mooting program described
by Bentley when he says:
The advantage of an integrated skills program is that the substantive and
skills components can feed off each other while achieving
their own objectives
and learning outcomes. For example, a moot topic could focus on the difference
between capital and income. Students
acquire the substantive tax knowledge
through lectures and through preparation for the moot. They acquire the mooting
skills using
the substantive subject matter. They then demonstrate the learning
outcomes for both the substantive subject matter and the mooting
component
through their performance in each element of the
moot.15
The alternative approach to setting moot
problems is to have them deal with material which is initially foreign to the
students but
which they must learn in order to complete the task successfully.
The content may be dealt with in lectures or tutorials subsequently
or it may be
covered solely through the moot. Definitely more challenging for the mooters,
the educational theory behind such an
approach is best identified as a form of
constructivism — the active attainment of knowledge through the
student’s exercise
of their own initiative and work (hence the label
“constructivist” seems appropriate). In particular, such moot
programs
are problem-based learning in its purest
form.16
The acknowledgment that mooting assists
student understanding of substantive law as well as developing a multitude of
practical skills,
may seem obvious, however, as noted above, these have been
identified as outcomes for those students actually involved — the
mooters.
This paper seeks to look at moots from the neglected angle of the spectator. In
essence it does this by asking two questions:
CONSTITUTIONAL LAW MOOTS
AT
UWS MACARTHUR — 1997
All core subjects of the Bachelor of Laws curriculum at UWS Macarthur must
feature a 25% skills component. This means that in each
of these subjects, a
quarter of the teaching time and the assessment must relate to a specified legal
skill. For example, in Introduction
to Law, students receive instruction in
legal research techniques for (on average) one hour a week and must complete a
substantial
legal research exercise known as a “pathfinder” which is
weighted at 25% of the total marks available for the subject.
The skill which is
concentrated upon in Constitutional Law is mooting which is worth 30% in total.
The slightly higher weighting
was a recognition of the very high demands which
mooting makes upon students in contrast to some other legal
skills.17 Additionally, there comes a point where
immutable delineation between substantive content and skills is both unrealistic
and negative.18 The students were marked just as much
on their understanding of the legal issues involved in answering the moot
problem as on their
advocacy and court etiquette.
In 1997 a number of changes
were made to the delivery of the subject with the aim of pacing mooting
throughout the semester19 rather than the previous
system of the moots being clumped at the end of the course where they occurred
not only in the designated
skills hour but also the two hour blocks set aside
for tutorials. Once that decision had been made, it was only logical that some
sort of relationship should be established between the lectures, tutorials and
skills sessions. As most of the skills sessions would
be given over to the
hearing of moots, it made sense for the moots to concern material already
covered in lectures and tutorials
so that there would be some definite
connection between all three arms of the course. Thus a model was adopted under
which a topic
would be lectured upon in, say, week five of semester. The
students then prepared for a tutorial on this topic in week six and, finally,
witnessed four of their classmates perform a moot concerned with this area of
the law in week seven.
There were two attractive features of this approach.
Firstly, it enabled the benefits that Bentley found in his undergraduate tax
program20 — the reinforcement of student
understanding of lectured topics through preparation for the moot, and the
assessment of students
in the professional context provided by the moot court.
This, of course, comes at the price of foregoing the benefits of asking students
to actively construct their own knowledge in addressing a moot problem dealing
with issues they are unfamiliar with, as described
above. This is the difficult
choice which faces anyone who is devising a moot program. Essentially, it is a
question answered by
the context surrounding the program. In this instance,
where the moots are but a part of a larger subject, the limitations of the
subject must also apply to the moot program. Ultimately, the factor which
determined that the Constitutional Law moots would be confirmatory,
rather than
constructivist, was the limited time available to teach the course, with the
corresponding demand which that imposes
upon students to assimilate a lot of
information quite quickly.
Secondly, looking beyond the issue of the
mooters’ learning, it presented an opportunity for what may be best
described as informed
spectating. Essentially, all this does is seek to extend
some of the benefits of mooting to the audience. Surely their understanding
of a
legal topic can be improved by watching others debate the correct application of
the law to a problem? We often request our
students to make tutorial
presentations to each other. The fact that a moot is situated in an extremely
legal environment —
unlike lectures or tutorials — should only
strengthen the learning experience for all concerned.21
To that end, over the course of semester, all students watched the moots
of their colleagues in the same skills/tutorial group.22
They were provided with the moot problem about 15-20 minutes before the
moot actually commenced and given that time to read
it.23 The moot problem was based around the topic
covered in tutorials in the preceding week and lectured upon the week prior to
that.
Any significant educational benefit to the audience is absent if the
moots are constructivist in nature. If the students have not
studied a topic in
the subject but some of their number answer a moot problem on it, the two groups
— mooters and audience
— are not operating from a remotely similar
knowledge base. In these instances, the audience is too far removed from the
issues
under discussion and will gain little from hearing a series of complex
arguments on a topic with which they are unfamiliar. It was
only by adopting a
confirmatory role for the moots that there was any possibility of them assuming
the role of a third form of delivery
of the subject matter.
DO INFORMED SPECTATORS LEARN FROM OBSERVING MOOTS?
Having described how the moot program was integrated into the Constitutional
Law course so as to assist student understanding of the
substantive content
through the participation in and watching of moots, the next question
must obviously be: did it work? There is no justification for packing the
gallery of a moot court with students
if they are not going to learn anything
but merely cause distraction and add to the anxiety of the mooters.
At the
end of the moot program in 1997, the students were surveyed and asked three
questions as well as invited to make any general
comments. The statistical
results and a representative sample of student responses help to indicate their
attitude towards the program
and explain the reasons behind the changes
implemented in 1998. Of the three questions, it is the second which is of
primary interest
to this paper (Watching other moots assisted you in
understanding the subject matter of Constitutional Law?) but the responses to
question 1 complement the earlier discussion about moots
generally.24
Question 1: Performing in moots in Constitutional Law was a valuable experience.
[Total Responses: 56 (1997)]
These figures are
hardly surprising given what we already know about the (normally retrospective)
fondness which students have for
mooting.25 Some of the
comments on the survey forms explain these figures and lend further support to
the numerous advantages of mooting identified
earlier:
And from a student who wanted to cover all bases:
– It allowed me to practically apply my knowledge
– It was an enjoyable challenge
– A good practical experience
– Allowed me to gain more experience in legal research.
From establishing that most students found value in their mooting experience, the next question focussed upon their role as spectators across the semester.
Question 2: Watching other moots assisted you in understanding the subject
matter of Constitutional Law.
[Total Responses: 57
(1997)]
An immediate glance at these
results indicates that they are much more evenly spread out and hence require a
more thorough analysis.
Further complexity arises because the comments which
students wrote do not bear a great relationship to the numerical ranking they
gave in response to the question. It is almost as if there are two scales in
operation. Student A may give a score of 1 but when
asked “why” may
have given a very similar response to Student B who gave a score of 3. This
works the other way also
— Student A may give a score of 5, but still
express reservations echoing the response of someone who gave a score of 3. The
3 mark is clearly the focal point and all sorts of comments — highly
critical and highly favourable congregate there. To clarify
matters, each quote
below will indicate what score the particular student gave in answer to the
question.
Firstly, it is probably best to start with the negative reactions.
In a lot of these, the students were very honest and volunteered
that the reason
the spectating was unsuccessful was due to their own lack of interest. This does
not invalidate their feedback on
this aspect of the program but is a very real
factor to be considered in evaluating the educational benefits of watching the
mooting
of others:
Responses which highlighted a more intrinsic problem with the concept of moot spectating were of the following kind:
The audience’s feeling of alienation from the moot due to
a less detailed understanding of the issues involved is something
that needs to
be solved if spectating is to be beneficial. Whilst it is obvious that students
will have a much deeper knowledge of
the topic covered in their own moot, it was
anticipated that the broad issues raised in the questions would not be beyond
the basic
understanding students should have of an area through lectures,
tutorials and their own reading. Clearly, for some students, this
was not the
case.
A number of the survey responses were critical of the way in which the
audience was provided with information regarding the moots.
As stated above, the
fact problem was distributed to non-mooting students at the conclusion of their
tutorial and about 15 minutes
prior to the hearing of the moot. As only two of
the six questions were over a page in length, it was thought that there would be
plenty of time for students to read them and have a fairly good idea of what was
to unfold in the Moot Court. It seems this was an
error of judgment:
The last comment was echoed in several responses, however, it is just not feasible in terms of administrative time and expenditure, though it would have the potential to enhance the experience for those students who chose to prepare properly. Not all the students advocated an early distribution of the moot problems, as the following response demonstrates:
However, the overall impression gained was that the
moot question should be made available much earlier and this was done in 1998.
This can only serve to maximise the potential benefits of
spectating26 for those students who wish to read it and
will make no difference for those others who do not read the question until the
hearing
of the moot itself.
The suggestion that some discussion of the
question occur prior to or after the moot was supported by several of the
responses:
These comments highlight two things: the student perception
that some guidance, additional to the mere distribution of the moot problems,
was required for the spectators, and the necessity of providing adequate
opportunity for reflection on the moot for the whole group.
Whilst timetable
constraints prevented a review of the moot immediately after the judgments were
handed down, time should have been
allocated in the tutorial in the following
week to review the moot. This realisation led to significant redesign of the
course which
is described below.
Before looking at the more positive
feedback, it should be mentioned that there was only one response which
indicated a dislike of
the spectating aspect on the ground of inappropriateness
— “private moots would have given more confidence (considering
this
is our first year of law)”. This is an issue that has to be considered and
the adoption of spectators in a first-time
moot program should be approached
with a degree of caution. In the case of this subject, almost all of its cohort
have already completed
a bail application exercise in Criminal Law (which does
occur in private) and so it was felt that as they were at least familiar
with
the moot court and its formalities they would not be as uncomfortable as
students completely fresh to public speaking of this
sort. Certainly there was
little comment or complaint from any of the mooters about the presence of the
audience. Rather it was the
spectators who tended to find reasons why they
should not be there!
Despite all of the above feedback, it is just as
apparent that some students found spectating extremely worthwhile. The
statistics
display a general balance in the responses and on the high side of
the score of 3 the favourable comments reflect the advantages
of spectating
which the course was designed to achieve:
Interestingly, the concerns examined earlier where some students felt that the moot had the potential to cause confusion due to the presentation of the law from two opposing sides, were seen by some of the higher scoring students to be a strength:
In all, the responses to this question can
be construed in a number of ways. Statistically, the percentage of students who
indicated
that watching moots assisted their understanding of Constitutional Law
in some way is encouraging — 80.7% of the responses
gave a score of 3-5 on
this question. However, one should be mindful that over 70% of those responses
are clumped at the midway point
of 3 and, as noted above, a numerical response
of 3 was not always accompanied by a positive response to the benefits of
observing
the moot.
That a proportion of the student body viewed the exercise
as without benefit is interesting — but it is hardly surprising. In
the
eyes of staff involved, it did not seem to justify the abandonment of moot
spectating in future offerings of the course —
especially in light of the
favourable reception it received with many other students. Instead it stimulated
us to adopt strategies
which would hopefully overcome some of the perceived
weaknesses in the program. The challenges for the 1998 teaching team were
twofold.
Firstly, to address the organisational gripes which students expressed
about distribution of moot information. Secondly, and far
more intimidating, to
combat student disinterest and boredom and provide encouragement for
spectators.
A CONSIDERED REVISION — 1998
The heavy emphasis on skills at UWS Macarthur can often mean that when one
attempts to revise that component of a subject the rest
of the course must
inevitably be redesigned also. This was very much the case with Constitutional
Law. The key to increasing student
interest in the moots they watched was
obviously to make them more relevant to the remainder of the course. To this end
the coverage
of a topic changed from the weekly progression of
lecture/tutorial/moot which was described above. A re-ordering occurred so that
a topic would be covered, again across the span of three weeks, but using a
lecture/moot/tutorial sequence. The placement of the
moot between the two
traditional means of delivery was designed to enable a full debriefing of the
moot problem in the subsequent
tutorial. The aim of this was twofold —
firstly, students were made aware that they would be expected to discuss the
problem
in the tutorial and would be asked about what the mooters had said in
relation to it. They were given the problem a full week in
advance of the actual
moot and told to prepare an answer to it for discussion in the tutorial, two
weeks later. Obviously, there
was now a reasonable incentive for closely
following the proceedings in the moot court. Secondly, by discussing the problem
after
the moot, staff were able to clarify particular issues that may have
become confusing in the course of the legal
submissions.27
In order to best evaluate the success
of these changes, the moot program survey was slightly expanded in order to be
more precise.
To overcome any possible confusion over the results of the
question which asked whether spectating assisted an understanding of the
subject
matter of Constitutional Law, a new question addressing just the skills aspect
of spectating was included. A question on
the tutorial debriefing of the moot
problem was also added. Before examining the responses to these, it is
worthwhile to “set
the scene” as it were by seeing how students
answered the initial question:
Question 1: Performing in moots in Constitutional Law was a valuable experience.
[Total Responses: 56 (1997) 89 (1998)]
The 1998 results are
not dramatically at variance with those of 1997 — there are still no
students who will rate the
value of the experience as a 1 or 2. The drop of 5
responses and the corresponding increases in 3 responses is hardly pleasing,
however.
The comments which students made do not provide any clear explanation
for this and it may well be just a consequence of the larger
student numbers.
There may also be an element of lack of novelty value — by the time
students moot in Constitutional Law at
UWS Macarthur they have already performed
in the moot court twice — a viva exam and a bail application having
already been
assessed. It will be interesting to see whether the 1998 spread of
statistics remains roughly fixed or whether it is just an anomaly
of that
particular cohort.
Do the 1998 Survey Results Provide (greater) Support for Moot Spectating?
Turning to the central issue of this paper, the teaching team were obviously very curious to see whether students reacted favourably to the spectating component of the moot program — especially in light of the changes we had made in order to improve it. There were three questions asked of students in order to determine this — the first addressing the benefits of watching others do the moot rather than following what they said:
Question 2: Watching other moots assisted you in familiarising yourself with techniques.
[Total Responses = 89]
The results for this question are hardly surprising as it was anticipated that the number of favourable responses would be high. As one student succinctly put it, “Always helpful to see how others stuff up and what they do well”. Other comments showed a more thoughtful response but really were variations on this theme:
Clearly,
there is an enormous benefit if students can learn from each other in this way.
These statistics support this but it must
be acknowledged that they are an
incidental result of this study and it was not our original intention to
demonstrate anything so
extremely obvious in the first place. Even so, it is
worth considering whether we enable our students to learn from each other enough
in the skills area. Even ignoring the possible academic benefits of following a
moot, the absorption of advocacy skills would seem
enough of a reason in its own
right for leaving the doors to the moot court open and encouraging the existence
of an audience.
A small percentage of people tended to disagree with the
proposition, seemingly for reasons of alienation from the process and a lack
of
constructive guidance:
These are fair comments but it seems
rather undesirable to give feedback to a (first time) mooting student in full
view of their peers.
It also seems a little unnecessary given the preparation
provided to students at the start of the program which should enable them
to be
pretty good judges of a mooter’s performance. Do they really need to have
it pointed out to them that John seemed poorly
prepared and could not answer
simple questions and that Sarah made irritating clicking noises with her pen?
Surely their exposure
to various videos and instruction books should enable them
to spot this behaviour as undesirable without having to publicly embarrass
the
student at such an early stage of their career. The responses of a majority of
students made it clear that they were able to
discern the good performances from
the bad through watching enough of the moots and also by identifying the
attitude of the bench.
However, giving students more detailed instruction on how
to critically peer evaluate moot performances might ensure less confusion
for
some.
Having ensured that survey respondents would not confuse the
observation of advocacy with their understanding of the academic content
of the
moot, the students were then asked the same question as their 1997
counterparts:
Question 3: Watching other moots assisted you in understanding the subject matter of Constitutional Law.
[Total Responses: 57 (1997) 89 (1998)]
A number of observations may be drawn from these results. Firstly, they are
more evenly spread across the five possible responses
than those of 1997, with
over 30% of students expressing disagreement with the proposition. Not only is
this a fairly high percentage
in its own right, but it is a substantial increase
on last year’s figure of 20%. This may be explained due to the difference
between the 1997 and 1998 surveys. The suspicion that some 1997 students
answered this question thinking of the advocacy aspects
and not the subject
matter seems to have been well founded. Hence, the appearance of the new
question 2 above leads to a more accurate
portrayal of student feeling on this
question in 1998.
That said, there are still 70% of students who either agree
strongly with the proposition or are neutral about it. And so while it
must be
acknowledged that there are a greater number of negative responses, there are
also slightly more students prepared to circle
4 or 5 indicating agreement with
the proposition. The 1998 results are more polarised than those of 1997 yet
overall they do not
signify a particularly strong case for abandonment of moot
spectating in Constitutional Law — especially when they are taken
in
conjunction with the figures from question 2 which indicate that most students
benefited from exposure to the practice of mooting.
The fact that a fair
proportion also learnt something about the law as well, seems to support
continuation of this feature of the
course.
Many of the written responses
confirmed what had been said by the 1997 cohort. This was especially the case
with respect to the interest
factor of students and the difficulties in
following what was going on — for a number of reasons:
There was a slight trend amongst the 1998 students to throw blame for the failure of the spectating on to the inadequacy of the participants!
All these criticisms are valid — it is difficult to learn from any presentation if you have trouble hearing the speaker and the material is poorly presented. However, even in making this point, these respondents acknowledge that there were other mooters who were clear, well-read and illuminating speakers. Other students added praise whilst also recognising the limitations of what was being attempted:
While the statistics and written responses indicate little real difference between the views of the 1997 and 1998 cohorts about the value of spectating, the 1998 students had an altogether different course structure — namely the holding of the relevant tutorial in the week following the moot to enable discussion of the problem. They may not all have been wildly enthusiastic about the spectating, but this new aspect seemed to be more warmly received:
Question 4: The analysis of the question in tutorials in the following week was a valuable part of the moot program.
[Total responses = 89]
Students tended to agreed with the
proposition for fairly obvious reasons, indicating that the change in the order
of modes of delivery
was successful:
This feedback aspect of the subsequent examination of moot problems in tutorials was highlighted by a number of students. This was an agreeable outcome and one not really appreciated at the time of the course’s design. The teaching team was primarily motivated by the need to clarify the legal issues, but, of course, in doing so we necessarily gave plenty of informal feedback to the students upon their understanding of the moot topic:
However, while all of this was very positive, we had become aware of a significant flaw in the course design during semester and the students also commented on this quite heavily in completing the surveys. The teaching of a particular topic over three weeks through the various mediums of lecture, moot and, finally, tutorial was needlessly drawn out. Given that moot and tutorial were taught in a three hour block, there seemed no good reason not to have a topic covered in both those formats in the one week. So rather than having the moot on topic y and then following that immediately with a tutorial on topic x (the subject of the moot from the week before), it would have made far more sense to have had the moot on topic y occurring just before the tutorial on that same area. This would have had two results. Firstly, students would come to the moots better prepared as they had to discuss the question in the tutorial immediately after. That students tended to read up on a topic before the tutorial and not the moot was confirmed by one survey response which said, “The Follow Up tutorial is the more valuable part since by this time you have read the relevant materials”. Presumably this greater understanding of the area would improve the students’ chances of following what was going on in the moot and also their interest level. Secondly, it would make the discussion of the moot problem far easier as it would not be relying on memories of an event occurring a week earlier:
Student criticism of this aspect of the program is justified. It may now seem incredibly obvious that the moot and tutorial should have been on the same topic in the one week, but at the time that we were redesigning the course, the legacy of 1997’s week-by-week approach did not seem so undesirable. It had not been the source of negative feedback and the realisation that the other changes would not be happily accommodated by that earlier style did not come until too late. There was also a lingering fondness for development of a topic across three weeks as it was perceived that it would allow time for deep understanding to develop — but, of course, when it necessarily means there is more than one topic “on the go” at any particular time, it was in fact more likely to overwhelm students. The fact that we didn’t get it right in 1998 is unfortunate but is a natural consequence of trial and error. Certainly the reordering and availability of an examination of the question was a vast improvement on what had been done in 1997 and raised the moots from the position of an occasionally baffling postscript to an integral part of a student’s experience of a particular topic. Putting the moots before the tutorials was clearly the right approach — in future there needs to be less time between these two so as to compress the coverage of the topic to a two week span.
CONCLUSION
The introduction to this article made it clear that its purpose was really to
describe just one attempt to achieve a closer integration
between the teaching
of substantive law and skills. There are undoubtedly many other stories that
could be told. Also as certain,
is the room for continual improvement and
development. The changes that have occurred in the delivery of this one subject
at UWS
Macarthur have been fairly significant, yet it is clear that there is so
much more that can be done. In particular, stronger efforts
should be made to
ensure that theory is not lost in a sea of doctrine and skills. At present there
is a substantial portion of the
course devoted to an examination of the tenets
of Western legal theory which underpin the Westminster system of government, but
perhaps
this material could be enhanced by a greater connection to the material
covered in the moots, or at least the reflection upon them.
Overall, I would
suggest that the experience of spectating moots at UWSM has been a valuable one.
It is educationally sound and, despite
student protestations at the time and the
occasional sleeper in the audience, the survey results indicate that there are
benefits
to be gained by those students who are prepared to devote a little
preparation and energy to making the most of their spectating
role. A tighter
course structure can assist students to do this. The role of feedback can also
receive more emphasis. The potential
then exists for students to approach their
studies in Constitutional Law in a manner which prepares for, and facilitates,
learning
through a variety of contexts thus enabling a deeper understanding of
all facets of the course.
APPENDIX 1
Question 5: The Mooting Program was well organised and the instructions and expectations were made clear.
[Total Responses: 55 (1997) 89 (1998)]
* Faculty of Law, University of Western Sydney,
Macarthur. The author wishes to gratefully acknowledge the contributions made to
the
mooting program in Constitutional Law by Susan Fitzpatrick (the course
co-ordinator at UWS Hawkesbury), Rita Shackel and Cameron
Stewart. This article
reports on the ongoing development of the mooting program at UWS Macarthur and
builds upon a conference paper
presented by Susan Fitzpatrick and myself at
ALTA’98. Susan’s input on that paper, and thus her influence on this
one,
is acknowledged with thanks. The author alone is responsible for the
contents of this paper.
© 2000. [1999] LegEdRev 4; (1999) 10 Legal Educ Rev 83.
1 D Pearce et al, Australian Law Schools — A Discipline Assessment for the Commonwealth Tertiary Education Committee, AGPS, Canberra, 1987. I am somewhat wary about referring to the Pearce Report within the very first words of this paper as its age is starting to show. But as my reference demonstrates, its significance as a landmark remains despite the growing irrelevance of much of its content. To peruse its pages now is truly to read an historical document. The landscape of legal academia has altered dramatically since 1987. The conversion of the CAEs to universities, the survival of the law school at Macquarie and the creation of several new Faculties elsewhere (in contradiction of the Report) have combined to create a great temporal distance in the last twelve years. The most touching evidence of the Report assuming the status of archival resource is found in paragraph 16.53 with the statement that “for all law schools a minimum target staff:student ratio of 18:1 is essential” (at 641).
2 As McInnis and Marginson remind us, “the only explicit formal suggestion given by the Pearce Committee to law schools on aims and objectives was a clear message that they should ‘examine the adequacy of their attention to theoretical and critical perspectives’”. C McInnis & S Marginson, Australian Law Schools After the 1987 Pearce Report, AGPS, Canberra, 1994 at 157.
3 “Fourth wave” is a reference to the post-1987 law schools, though admittedly the terminology, which is derived from C McInnis & S Marginson, id. at 99 has the potential to create confusion. The pre-Martin Report 1964 law schools are “first wave” while those that came after are “second wave”. But as McInnis & Marginson point out, Macquarie and La Trobe are so ideologically distinct from the remainder of the second wave that they can be said to form “a distinctive third wave in legal education”. The confusion arises because it seems that the second and third waves were occurring roughly simultaneously. Curiously, McGinnis & Marginson themselves, ignore the distinction of a third wave in the presentation of tabled information at the end of their work.
4 See the review of skills development in the law schools after 1987 found at C McGinnis & S Marginson, id. at 168-170. The authors do not make any direct conclusions about their comparisons between the pre and post-Pearce law schools’ attitudes towards skills training. However, phrases such as “the new schools responded strongly to this item” (skills of oral expression and legal advocacy); “overall, the skill of drafting was integral to the new school courses”; and “all but one of the new schools responding to the survey identified subjects specifically designated to develop negotiation and interpersonal skills” indicate that the fourth wave schools were at least keeping up with their pre-1987 counterparts if not seriously surpassing them in commitment to skills teaching.
Wade acknowledges the role of new law schools in the development of the “third wave of skills” (these are waves distinct from those used to categorise the schools themselves) but places this as occurring in the 1980s. JH Wade, “Legal Skills Training: Some Thoughts on Terminology and Ongoing Challenges” (1994) 5 Legal Educ Rev 173 at 180. I would suggest that the findings of both the Pearce Committee and McInnis & Marginson, aside from the fact that the “new law schools” only started to emerge at the beginning of this decade, indicate that the increased presence of skills in law undergraduate programs has certainly occurred well into the 1990s and in a much more enthusiastic way than prior to 1987.
5 S Kift, “Lawyering Skills: Finding their Place in Legal Education” [1997] LegEdRev 2; (1997) 8 Legal Educ Rev 43 at 43-45; K Mack, “Bringing Clinical Learning into a Conventional Classroom” [1993] LegEdRev 4; (1993) 4 Legal Educ Rev 89 at 89-90; and M Le Brun & R Johnstone, The Quiet Revolution: Improving Student Learning in Law, Law Book Company, Sydney, 1994 at 169.
6 As Spiegelman says, “much of the call for reform in legal education can be seen as a conflict between theorists, who want to move toward more sophisticated abstraction, and practice-oriented teachers, who want to move toward more concrete learning”. P Spiegelman, “Integrating Doctrine, Theory and Practice in Law School Curriculum: The Logic of Jake’s Ladder in the Context of Amy’s Web” (1988) 38 J Legal Educ 243 at 245. Some key literature in this area includes W Twining, “Pericles and the Plumber” (1967) 83 LQ Rev 396; N Jackling, “Academic and Practical Legal Education: Where Next?” 4 Journal of Professional Legal Education 1; J Goldring, “Academic and Practical Legal Education: Where Next? — An Academic Lawyer’s Response to Noel Jackling” 5 Journal of Professional Legal Education 105.
7 S Kift, above n 5 at 44.
8 P Spiegelman, above n 6 at 245 where he also says, “If it were necessary to choose among teaching doctrine, teaching practice, and teaching theory, then a continuing debate might make sense”. See also K Mack, above n 5; K Mack, “Integrating Procedure, ADR and Skills: New Teaching and Learning for New Dispute Resolution Processes” [1998] LegEdRev 4; (1998) 9 Legal Educ Rev 83.
9 The same course structure was employed for the delivery of Constitutional Law at UWS Hawkesbury. Students undertaking Bachelor of Commerce/Law degrees at UWS Hawkesbury complete a number of subjects from the law program at UWS Macarthur as part of their undergraduate course, before transferring to UWSM to complete their combined law degree. Constitutional Law is one of the UWSM subjects taught by the staff at UWSH.
10 Only in very recent times has mooting been subject to serious criticism about its ability to teach useful legal skills which adequately prepare students for legal practice. This is found in A Kozinski, “In Praise of Moot Court — NOT!” (1997) 97 Colum L Rev 178. Although Kozinski is addressing the use of mooting in most American law schools, there seems no reason why his views should not extend to most moot programs in Australia. Kozinski’s article is a timely attack on our complacent assumptions that moots provide students with “real world” experience. However, the article fails to appreciate the significance of contextual variables upon skills training in the undergraduate curriculum. Speaking as one who is obliged to conduct moots with first year students, I can foresee disastrous consequences of an application of Kozinski’s school of hard knocks style of mooting in such an environment. So, whilst Kozinski has provided a fresh perspective in the sparse literature on moots, I submit that many of the suggestions he makes may only have value in moot programs at an advanced level — perhaps even beyond the undergraduate curriculum altogether and at the stage of professional training only. That said, I do not deny that most undergraduate skills training is noticeably artificial when contrasted with the reality of practice. See J Costinis, “The MacCrate Report: Of Loaves, Fishes, and the Future of American Legal Education” (1993) 43 J Legal Educ 157 at 171-5.
11 See T Gygar & A Cassimatis, Mooting Manual, Butterworths, Sydney, 1997 at 3-4; J Snape & G Watt, The Cavendish Guide to Mooting, Cavendish Publishing Limited, London, 1997 at 11-12. The latter publication tends to present the art of moot presentation as a uniquely legal skill and the authors talk of “the presence of a certain nebulousness — an indefinable quality” which enables lawyers to “explain simply and clearly what may be very complex legal material” (at 11-12). However, the view of Bentley seems preferable when he states that “the skills identified as essential to good lawyering are not exclusive to the legal profession. The skills are often defined in different terms in other disciplines, but the content is essentially similar”. D Bentley, “Mooting in an Undergraduate Tax Program” [1996] LegEdRev 4; (1996) 7(1) Legal Education Review 97 at 99.
12 T Gygar & A Cassimatis, above n 11 at 4; J Snape & G Watt, above n 11 at 12-13; A Lynch, “Why do we Moot? Exploring the Role of Mooting in Legal Education” [1996] LegEdRev 3; (1996) 7(1) Legal Education Review 67 at 86-88.
13 See generally W R Prest, The Inns of Court under Elizabeth I and the Early Stuarts 1590-1640, Longman, London, 1972; and WJV Windeyer, Lectures on Legal History, 2nd ed., Law Book Co., Sydney, 1957 at 137-139.
14 A Lynch, above n 12; D Bentley, above n 11 at 117; JT Gaubatz, “Moot Court in the Modern Law School” (1981) 21 J Legal Educ 87 at 89.
15 D Bentley, above n 11 at 104. This approach is similar to that adopted in the Constitutional Law course at UWS Macarthur which will be described in detail below, however, the focus of this paper is upon the learning experience for spectators of the moot.
16 For an overview of the educational theory relevant to moots, see A Lynch, above n 12 at 74-81. See also S Kift, above n 5 at 59-71; M Le Brun & R Johnstone, above n 5 at 71-80 for discussion of constructivism. It goes almost without saying that either kind of moot — confirmatory or constructivist — is an example of experiential learning for the mooters. See DA Kolb, Experiential Learning: Experience as The Source of Learning and Development, Prentice-Hall Inc, New Jersey, 1984. This concept is also explained in all three of the above sources.
17 In 1997 the 30% was split evenly — 15% for oral argument and 15% for written submission. In 1998 the teaching team decided it was desirable to tip the balance in favour of the oral work required of students. Hence this component was weighted at 20% and the written submission was worth 10%.
18 Above n 8.
19 All subjects at UWS Macarthur are one semester in length.
20 See quote accompanying n 15.
21 The importance of presenting knowledge in some context related to its use is discussed by JS Brown, A Collins & P Dugid, “Situated Cognition and the Culture of Learning” (1989) (Jan-Feb) Educ Researcher 32.
22 Fortunately in 1997 the numbers in the groups facilitated this in almost all cases. Most groups were of 24 students each and with four students appearing weekly in one of six moots, the moot program was completed with only a few extra moots needed to accommodate extra students. In 1998 however, student numbers rose to about 32 in each skills group with the result that many more extra moots had to be held outside of contact hours. These moots had no audiences.
23 Student feedback on this aspect of the program was fairly critical and shall be examined below.
24 The third question asked of students was their views about the general organisation of the program and the results for this are contained in Appendix 1. This information is included solely to give some indication about the program which has been the source of the data analysed below.
25 See the section above titled “The Commonly Perceived Advantages of Mooting”.
26 Survey responses considered below, indicate that there may actually be some, despite the comments considered so far!
27 Obviously, this process calls for tact on the part of the tutor. In providing a legal answer, great care should be taken not to be too harsh on some of the more outlandish submissions which counsel have made.
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