Effective Learning and Teaching in Law

Roger Burridge, Karen Hinett, Abdul Paliwala, Tracey Varnava

• Publisher: Routledge
• Year: 2003
• ISBN:
  9781135726966
• Edition: 1
• Topic: Education
• Subtopic: Education General

Effective Learning and Teaching in Law will provide all law teaching professionals with practical, authoritative guidance and advice on the successful teaching of their subject in both university settings and as part of professional training and practice. Written to promote the development of and recognition of the professional role of the law teacher, this book will help educators equip law students of law with the intellectual and practical skills required to succeed in their studies. Key coverage includes assessment, the design and planning of learning activities, the use of IT in legal education and developing suitable learning environments.The book is edited by a leading team of legal educators for the UK Centre for Legal Education (UKCLE) at the University of Warwick, and includes expert contributions from leading figures in the field. It will be essential reading for anyone involved with legal education today and will be particularly relevant for those developing their teaching career, or seeking professional accreditation.

1
Revising legal education

Tracey Varnava and Roger Burridge

Introduction

There are certain enduring features of the landscape inhabited by legal education in the United Kingdom that are commonly reprised in writings on the subject. Often presented in oppositional terms, the features described generally include: academic/vocational; new/old university; teaching/research; skills/knowledge; City/citizen; Bar/Law Society and so on. Whilst analysis of sources of tension is useful to highlight trends and challenge positions, it suffers from a tendency to oversimplification and may obscure, rather than illuminate, alternative strategies. Not faint-hearted, the purpose of this book is to move beyond the conflict between the disparate agendas of those with an interest in the form and content of the law degree, to sketch fresh identities for law teachers. This chapter will set out to meet this objective by revising legal education: both by reassessing the arguments proposed by the main protagonists and by proposing new ambitions for law teachers in the 21st century.

The leading contenders for influence over legal education development are the legal professions, the law schools and Higher Education theorists and policymakers. Despite the claims of some of their representatives, it is important to recognise at the outset that there is no unanimously supported agenda attributable to these bodies. The professions are riven by the competing needs of the high street and the City, barristers and solicitors and the struggle for market share and graduate supply. The law schools are aligned largely according to their ability to attract the best quality entrants; the recruitment potential of their graduates amongst leading City firms; and the vagaries of HE funding that ensure the ruins of the binary divide stay visible years after the formal wall has been demolished.

Higher Education policy is produced amid struggles between institution and state over audit, accountability and sustainable funding. The purpose and function of universities is gradually being reshaped, prompting questions and anxieties about the status and role of the individual academic. It is not the purpose here to attempt to re-present the respective positions of these different factions. Not only would this merely serve to retread old ground but it would also no doubt provoke further dispute about the accuracy of any description offered. We seek instead to draw, from the debate core issues that need to be addressed if progress is to be made towards building a consensus about the future development of legal education. We advocate a more proactive and influential role for the law teacher as a professional exponent of effective learning and teaching practice. Our assessment of what are the core issues and our depiction of the development of the role of the law teacher are, of course, also subject to challenge. However, it is based on our experience of working with law teachers and listening to their perspectives on the current and future shape of legal education.

In Section 1 we look at the context within which any attempt to reformulate the debate about the future direction of legal education must be set. We examine in particular the influence of Higher Education policy, the legal professions, and the law school. We extract what we see as the key issues to be addressed if progress is to be made beyond the familiar points of contention between these various stakeholders in legal education. The combination of these influences creates peculiar challenges for legal education and, we would suggest, unique opportunities for responding to current trends and developing needs. Section 2 examines how law schools are currently responding to these issues and suggests the adoption of fresh perspectives to enable new responses to old problems. Section 3 explores the role of the law teacher as a reflective professional and argues that the development of this identity is central to asserting a leading, rather than subordinate, role in the future of legal education.

Section 1 Setting the context

Higher Education policy

The past decade has witnessed major upheaval in the Higher Education system, characterised by a number of initiatives that seek to remodel universities for new and more diverse purposes. We concentrate here on the effects of revisions that have particular significance for the learning and teaching of law since they bring with them the potential for development beyond the bounds of the traditional law degree.

Access to Higher Education

By 2010, the government aims to enable 50 per cent of young people to benefit from Higher Education. Law remains popular with those applying to study at university. It is notable, however, that despite attempts to benchmark degrees and reassure employers, parents and students that all honours degrees in law are equal, the reality within the current funding climate is destined to be different. Students are well aware that a second class degree from one of the élite universities is more marketable than the equivalent or better from a new university. The legal professions are known to prefer to recruit from the ‘old’ university sector. In this sense, therefore, students do not have a wider choice than previously: there are just more students vying for places in the ‘best’ law schools.

The irony of the application of this ‘fitness for the professions’ criterion is not lost on those who teach law in newer universities. It is they on the whole who are most proactive in equipping their students with vocational skills and it is they who are more interested in professional legal education, both by providing the lucrative LPC and BVC and being more ready to undertake research in the field (Leighton, 1998). Since the newer universities tend to be more successful at recruiting from educationally and otherwise disadvantaged sections of society, the professions’ insistence on seeking their entrants primarily from the older, established law schools has grave implications for the administration of justice.

If we are to take these implications seriously and genuinely seek to widen access, not only to Higher Education but also to the legal professions, a radical change in attitude is called for. Policy-makers need to add weight to their professed commitment to widening access by providing recognition, through additional funding, to those universities that recruit students from less privileged backgrounds. The status and contribution of these institutions needs to be promoted. In an increasingly diverse system, there should be room for institutions that fulfil different needs and interests with each being recognised for the value added by their endeavours. The recruitment policies of the legal professions may be harder to influence through direct intervention but it is clear that the legitimacy and relevance of the law is compromised without adherence by the professions to principles of fairness and equality.

The expansion in the proportion of students entering Higher Education has had other effects in terms of the disorientation of the curriculum, as programmes and courses are adjusted to appeal to a wider range of interests and experience. The widespread adoption of a modular system has had a tendency to dislocate the student’s experience of the degree programme, undermining the holistic approach to learning that ‘seeks to identify and preserve the overall framework and structure of knowledge’ (Webb, 1996:38. See also Marton, 1988 and below). If law schools ever sought to provide a coherent undergraduate curriculum in accordance with their own rather than the professions’ concept of core content, such an objective is less attainable in a modular world than previously. This fracturing of the degree programme also raises concerns about the depth of knowledge that can be fostered and the piecemeal and disconnected understanding that results. The increase in assessment tasks exacerbates this problem and promotes a surface, and instrumental approach to learning (see Chapter 3).

However, despite these concerns, modularization can be the vehicle for positive progress through the redesign of the curriculum and the increase in choice available to the individual student. The change to a modular system should prompt a complete review of the curriculum to enable students to both choose a route to suit their individual interests and also to graduate with a degree that continues to reflect achievement in areas of knowledge that are fundamental to the understanding of law. This is no easy task and demands that law teachers discuss and plan the curriculum and have a shared idea of what they value as the fundamentals of a law degree. Chapter 3 describes this process in relation to assessment and suggests the use of learning matrices to ensure coverage of essential elements of the degree. Another positive outcome of the competition resultant upon the drive for more students and more funding has been the expansion of the range of options offered by law schools, providing more mixed degrees and generally developing more opportunities for law teaching.

RAE and subject review

Whilst the more intrusive aspects of subject review have been modified and a new approach is contemplated, the previous approaches had exerted considerable pressure for documenting and tracking learning and teaching procedures. The future form of the Research Assessment Exercise is also uncertain but efforts to evaluate the research value of university departments are likely to continue in some form. The Law panel significantly revised their criteria for RAE to include legal education scholarship following consultation with their colleagues. It may take much more than acknowledgement by the RAE panel of the possibility that learning and teaching are capable of becoming the object of research and scholarship to effect a cultural shift in career focus amongst teachers and law schools. The panel’s acknowledgement is nonetheless a signal to university administrations that teaching and learning development can be compatible with research prowess.

Published reflection within the legal education community on teaching quality evaluation has been critical of the tendency towards a more prescriptive curriculum. According to some writers, subject review in particular, and HE audit in general, is antithetical to the aspirations of liberal intellectual enquiry and undergraduate learning. Specifically, the drive to equip graduates with knowledge and competencies for employment is seen as no part of the purpose of Higher Education (see, for example, Bradney, 2001). These sentiments will find some support amongst colleagues, as much for the resentment that teachers may feel for the cumulative chores involved in quality assurance and the audit trail. Against this, the positive fallout from subject review has included attention to learning outcomes, clear articulation of degree and module programmes and a general focus on the process of learning that many would argue was long overdue.

Graduate skills and abilities

The creation, on 8 June 2001, of the Department for Education and Skills underlines the government’s commitment to placing skills firmly within the education brief. Skills are variously preceded with words such as ‘key’, ‘core’ and ‘transferable’ and the lists of the skills that these terms encompass vary depending on who has put them together. For our purposes here, the law benchmark statement, as the most recent consideration of the kinds of skills that may properly be found within the law graduate’s armoury, will be relied upon.

The law benchmark statement identifies what may be termed ‘abilities’ as well as skills that are labelled as ‘key’. The abilities include: application and problem solving; sources and research; analysis, synthesis, critical judgement and evaluation; autonomy and the ability to learn. The last of these is described as ‘… perhaps the key feature of graduateness’ (QAA, 2000:7). The key skills set out in the benchmark statement include: communication and literacy; numeracy; information technology; teamworking. Some commentators have questioned the value of skills teaching and suspect that it both narrows the focus of academic inquiry as well as diverting it from its proper mission; the pursuit of knowledge in its own right (see for example, Bradney, 1992, 1995; Toddington, 1995).

Despite criticism from some quarters, the teaching of skills in the undergraduate curriculum has a fairly robust history (Gold et al, 1989; Webb and Maughan eds, 1996). The ACLEC report (1996) confirmed the role for skills development in the undergraduate curriculum:

[a] liberal and humane legal education…implies that students are engaged in active rather than passive learning, and are enabled to develop intellectually by means of significant study in depth of issues and problems…and that the teaching of appropriate and defined skills is undertaken in a way which combines practical knowledge with theoretical understanding

(ACLEC, 1996:23. Emphasis in the original.)

Indeed, many believe that law as a discipline is uniquely suited to the development of skills, however defined. Being able to ‘think like a lawyer’ is considered one of the main aims of undergraduate study both by those who espouse the liberal education ideal and by those who see it as the first step on the road to a career in law. However, the skills that ‘thinking like a lawyer’ encompasses (analysis, synthesis, reasoning, communication and problem solving) are not, in fact, uniquely promoted within law but are emblematic of Higher Education more generally (see, for example, Twining, 1994:181).

Employability

The report of the National Committee of Inquiry into Higher Education (the Dearing Report, 1997) clearly recognised the role of Higher Education in the development of people, society and the economy. The value of a university education is now more clearly judged by how employable graduates are, rather than some less defined appreciation of the general good of Higher Education. In legal education there have been ongoing debates between the academy and the professions about the form and content of the undergraduate degree as a preparation for a professional career in law. The concentration in Higher Education policy, too, on the appropriate outcomes of a degree programme, has required some further consideration of the role of the various stages of legal education in contributing to the acquisition of the knowledge and skills required for the practice of law. We turn now, therefore, to a consideration of the influence of the legal professions on the form and content of legal education, particularly at the undergraduate stage.

Influence of the legal professions

It is clear that since the Dearing Report the face of Higher Education is firmly set in the vocational direction. During the 1990s the legal professions promoted competence and lawyer performance in place of programmes that had required the assimilation of additional knowledge of procedures (Boon, 1998). They dev...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• About the editors
• Acknowledgements
• Forewords
• Preface
• 1: Revising legal education
• 2: Learning law and legal expertise by experience
• 3: Diversifying assessment and developing judgement in legal education
• 4: Negotiating the learning process with electronic resources
• 5: Responsibility and ethics in professional legal education
• 6: The Human Rights Act and the UK law school
• 7: Law teaching for other programmes
• 8: The new advocacy: implications for legal education and teaching practice
• 9: Space, time and (e)motions of learning