Further reflections on the FLIP Report – 2. legal education

The NSW FLIP Inquiry (see my previous post for initial reaction) also recognises that disruption of law has implications for legal education and training. It therefore looks at the need for change in legal education in Chapter 6 of the Report. A warning now: for me this was the most disappointing feature of the whole report. The Inquiry’s limited engagement here is reflective of what I consider to be a persistent failure (not just in Australia) in the profession, regulatory bodies and academia to engage deeply with the complex field of education and training policy. Note that the ‘policy’ word here is crucial to understanding my criticism. Lots of us do think deeply about how we teach/should teach specific areas of law; admission boards across the country take their job of assuring standards very seriously; no one argue legal education is irrelevant. But, there has been little fresh thinking in policy terms about the changing nature of legal work, and hence legal competence, and what needs to be regulated to assure competence (the core policy question). The Law Admission Consultative Committee started the task of asking the hard questions in 2015, but recognised that this process would need a more extensive review than it could then undertake; this is still in the pipeline.

Turning to the FLIP Report, the first thing that is striking about chapter 6 is just how little discussion there is. In three* quite brief pages, the report seeks to determine “the skills and areas of knowledge that were perceived as necessary for future legal practice” as well as identify the ‘extent’ to which these things are taught, and the where, when, and how of their teaching. The answer to that. of course, is not going to be found in two and a half pages. The Report does conclude that (p.6):

“In a changing environment, the skills and areas of knowledge likely to be of increasing importance for the graduate of the future include:

  • technology
  • practice-related skills (eg collaboration, advocacy/negotiation skills)
  • business skills/basic accounting and finance
  • project management
  • international and cross-border law
  • interdisciplinary experience
  • resilience, flexibility and ability to adapt to change.”

Beyond that, it offers no roadmap or substantive recommendations. To its credit, the Report calls for more research into what is actually being taught, and how these emerging areas might be taught and developed within ‘existing’ curricula.** However this also mean that, in the end, the Report rather shovels the problem off elsewhere, and actually says very little that is new.

The Report, perhaps unwittingly, also demonstrates the depth of the problem that legal education and training systems currently face. In the course of discussion, it juxtaposes three propositions. First it acknowledges that:

No existing areas of law or skills were identified as being able to be removed from the law degree, PLT [practical legal training] or CLE [continuing legal education]

This in and off itself is deeply problematic, but it then also recognises the desirability of producing both more consistently-trained, and more “practice-ready” graduates (p.77). What if these three things are actually incompatible?

Consistency is one of the current buzzwords. We have seen it in the context of US (ABA) debates around the need to move to competence-based standards, in the UK’s Legal Education and Training Review, and in the ongoing debate around legal education and training in Hong Kong. Inconsistency can be a problem, for sure. It makes it harder to make assumptions about what people do or don’t know. Does that make it a regulatory problem in itself? Or is it a regulatory problem only when it points to underlying failures of competence by some or all training providers? The latter is a lot harder to demonstrate.

Practice-readiness is an over-used phrase. It also needs to be considered somewhat critically. Much of the argument for practice-ready graduates is about economics, not enhancing competence. It is about the economic pressure on law firms to transfer more of the costs of training (which clients are less and less willing to pay) onto the trainees themselves. It also, I think, assumes a degree of homogeneity (so consistency and practice-readiness may actually be part of the same argument). In an increasingly segmented sector, is more homogeneity actually what we need? Can we produce a more homogeneous ‘product’, whilst also ‘creating’ graduate lawyers who are more flexible, creative, and better at not just managing but embracing change (see p.79)?  Practice-readiness as a concept is strikingly analogous to supermarket hot chicken. It is a consistent product, for sure; it is superficially attractive; it probably will save you time in the short term, but it is not as satisfying as the dish you could produce yourself with a bit more time and effort, and its not really something you would want to serve up to important guests (clients)!

This is not to say we can’t or shouldn’t make some changes, or even get closer to the ‘ideal’ of practice-readiness, but to do so we need to recognise two things:

  1. Law teaching is subject to the laws of physics. So long as degrees and PLTs operate within the time-space continuum, there is a limit to what can be added before other things have to be removed. Core content tends to expand rather than contract, and legal education reviews (I speak from direct experience) have struggled to counteract the flow. The Flip Report, to be fair, recognises the problem, but (unsurprisingly), offers no solution. We need to have a proper, evidence-based, discussion about the nature and boundaries of initial competence, in the context of an increasingly segmented legal services market.
  2. It will likely cost much more. If we are serious about practice-readiness, and meaningful assessment of competence, we need to look to medicine. Law schools would need to become more like teaching hospitals, and (final) assessments more practice-based. The (English) Solicitors Regulation Authority’s (SRA) plan for part 2 of their proposed Solicitors’ Qualifying Exam (SQE) is a good example of the latter. Unfortunately, it is paired with a Part 1 assessment that has failed to address the problem of an ill-defined notion of competence within an ever-expanding knowledge base. Consequently I predict Part 1 of the SQE is an accident waiting to happen.

We need to do better.

*There are actually four in total, but I’m discounting the descriptions of hackathons and law apps courses; great innovations though they are, they do not actually address most of the underlying policy issues.
**Note that the Report does not call for us to review the possibly quite dismal consequences (eg, for wellbeing, creativity and deep learning) of much traditional law teaching and learning.

 

 

 

Some thoughts on the proposed SQE and its implications for the English law degree

I highly recommend Richard Moorhead’s blog on the recently published consultation by the Solicitors’ Regulation Authority on the  standardised competence assessment for all those seeking qualification as a solicitor in England and Wales. In this post I just want to add a few thoughts of my own to the conversation. I’m also conscious that the SRA’s work is of interest to a wider audience than the UK. Here in Australia, for example, the Law Admissions Consultative Committee is continuing to follow post-LETR developments in England closely. The Hong Kong Law Society has also proposed the introduction of a Common Entrance Exam, though the scope of the HK proposal is less radical, and debate has, for now, been paused and rolled into a wider review of legal education and training that is now underway.* In this post I intend to reflect only the possible implications of the SRA proposal for the English qualifying law degree (QLD) – not least because I want avoid anything that might appear to pre-judge the Hong Kong debate.

The SRA consultation paper starts from three possible, broad, models for a potential qualification regime (para 11):

  • Option 1: Continuing to prescribe a limited number of pathways to qualification, the details of which we specify, which are aligned to the Statement of Solicitor Competence Statement, Statement of Legal Knowledge, and Threshold Standard

  • Option 2: Rather than prescribing a limited number of pathways, authorising any training pathway developed by a training provider which enables a candidate to demonstrate they can perform the activities set out in the Statement of Solicitor Competence to the standard required in the Threshold Standard.

  • Option 3: Developing a centralised assessment of competence that all candidates are required to undertake prior to qualification, again aligned to the Statement of Solicitor Competence, Statement of Legal Knowledge and Threshold Standard.

Option 1 represents largely a continuation of the status quo; option 2, I suggest, comes closer to the base position advanced in the 2013 LETR Report, while Option 3 is the SRA’s preferred approach for reasons essentially of cost, consistency and flexibility/diversity. The paper offers some compelling arguments for its preferences, and some balanced evaluation of the options, though I felt overall that it was perhaps a little more robust in critiquing options 1 and 2 than it’s preferred option 3 – though it does also, rightly, point out that none of the options are mutually exclusive (and indeed the LETR Report could be seen as recognising the value of elements of both options 2 and 3 – the latter notably in the use of standardised clients in skills assessments).

Much of the detail (and hence the devil) of the preferred approach remains to be developed. The paper is clear that the SRA anticipates a separate two-part assessment of knowledge and skills. The modularised assessment of knowledge must be completed first, and would be assessessed via computer-based objective testing. The second part would involve standardised practical exercises akin to the standardised clinical  assessments used by medical schools and in the current Qualified Lawyer Transfer Scheme. The paper is relatively open on the question whether, and if so how much, work experience should be required before the Part 2 assessments are completed.

The proposed scope of the knowledge assessments is broad. It will encompass ethics and professional conduct, wills and probate, taxation, business law and practice, property law, torts, criminal law and evidence, criminal litigation, civil litigation, contract law, trusts and equitable wrongs, constitutional law, EU law, human rights, and the English legal system (para. 41). The assessments are to be modularised, to facilitate “integration with other education and training programmes.” There is, however, no discussion at this stage of the broader assessment framework, prerequistes and sequencing of modules, or of the frequency of assessments.

Implications for the QLD

The paper is very clear that possession of a law degree should not be a basis for any exemptions from the knowledge (or skills) requirements of the SQE. In short, if this proposal goes through, the QLD as we currently think of it is dead – at least for the solicitors’ profession.

I agree with Moorhead that, if these proposals go through, we are likely to see the creation of a more divergent education and training playing field: possibly with growing differences between traditional liberal and what Moorhead calls ‘almost practice ready’ law degrees, plus a greater variety of postgraduate and, I would add, possibly non-graduate (in structure, though potentially graduate in level) options such as apprenticeships.

The consequences of all this for the law school sector as a whole are potentially substantial, and may be very serious. They include:

Recruitment: Law has undoubtedly grown as an academic subject on the back of its professional status and recognition. Even though less than 50% (and I suspect in some post-92 law schools the proportion could be 30% or even lower) actually make it to being a solicitor, between 60%-70% appear to enter law school with solicitor/barrister ambitions. Recruitment implications of the loss of QLD status are thus both potentially significant and very hard to judge. Will regulation reshape the market for training, or will the market for training adapt as minimally as possible to the regulation? There are significant vested interests involved, including the elite law schools, and the big LPC providers who will not let a multi-million pound business simply disappear overnight. Much may depend on how the elite law firms and their ‘preferred suppliers’, the elite law schools respond to these changes, and whether they (continue to) function as a congeries of reputational interests. (The reputational risks of marginalising the law degree are not addressed in the SRA paper. In the LETR research phase, by contrast,  quite a lot was made of the reputational importance of the graduate standing of the profession in the international marketplace. Whether ‘graduateness’ without the Oxbridge or Russell group badge carries the same cachet is moot). If some form of LLB + LPC remains a significant pathway, the recruitment effects may be mitigated – at least for some parts of the sector. If it doesn’t, the future becomes infinitely more difficult to predict.

Expansion of the knowledge-base – The new knowledge base essentially represents an amalgam of the knowledge requirements of the QLD and LPC. It thus reflects the continuing influence of the reserved areas of practice and thereby excludes much of what many (especially commercial) solicitors do. For those who want to develop nearly-practice ready degrees, it might not change the game that much from the current exempting degree model. However, that assessment also depends in large part on how much current flexibility over (QLD) content is reduced by the so-far unwritten assessment framework. To expect the  academic community to vote on the options in the absence of this seems rather like asking turkeys to vote for something that may or may not be Christmas; you really would like to know first.

Doubling-up of assessment burden: those who continue to do degrees are likely to be confronted with a growing assessment burden. Under the preferred model university assessments will not count for the SQE, and it would be a radical change of policy for universities to accept entirely external assessments as part of a (concurrent) degree. Moreover, the fact that the SRA currently sees SQE assessments as both pass/fail and sitting outside the Framework for Higher Education Qualifications (FHEQ) (see paras 57-58) makes any inclusion by recognition a less, not more likely, prospect. The impact, including diversity impact, of the scale, scope, timing, frequency and cost of SQE assessments on law students specifically appears not to have been addressed at this stage.

Implications for innovation and diversity of intellectual approaches: a drift towards nearly practice ready degrees may have significant ‘unintended’ (or from the SRA’s point of view, ‘none of our concern’) consequences for academic law. Joint degrees may decline because they simply cannot address enough of the SQE ‘core’ knowledge. Unless a clear secondary market develops in SQE test preparation (a matter which in itself may have some diversity implications), universities are also likely to find themselves under some pressure to teach to the test. That is likely to (further) undermine socio-legal, theoretical or other alternative intellectual approaches to doctrinal legal analysis. (Recall that the LETR Report data highlighted the limited value professionals attached to jurisprudential or socio-legal content/ approaches.)

The anxiety has begun…

*The Hong Kong Review under the auspices of the Standing Committee on Legal Education and Training is being undertaken by a panel comprising Justice KH Woo, Professor ATH (Tony) Smith and myself.

 

Implementing the LETR

I was sorry to miss the latest Westminster Legal Policy Forum (WLPF) event in London on 5 November, but unfortunately I was otherwise occupied in the southern hemisphere. The event was timely, given that the SRA has recently published its consultation on its draft competences and the BSB have also just given us some further detail of their training strategy (though still not a lot – HT here to Steven Vaughan’s recent guest blog on Richard Moorhead’s Lawyer Watch).

The WLPF summarised the event as follows:

Sessions brought together key stakeholders working across the current legal education and training framework – including colleges, universities, careers advisory services, vocational training providers and regulators – alongside law firms, chambers and wider legal employers. Delegates had particular opportunity to consider the prospects for developing new qualification pathways and access routes to legal professions, as well as possible changes to competency frameworks and Continuing Professional Development. Sessions also focused on current proposals to streamline regulatory involvement in education and training processes, and the challenges ahead for a revised framework in supporting both innovation and standards.

The work of the LETR research team is, of course, long-finished, but it was good to see that my colleague on the team Professor Avrom Sherr was invited to open the event and did so, in his own words, by going provocatively “off message”, not least on the challenge to the representative bodies to maintain their relevance after the Legal Services Act; on the tendency of the LETR to be about “regulation, regulation, regulation” rather than “education, education, education”, and on the potential boringness of the SRA’s competence statement. This all bodes rather well for our joint Upjohn Lecture in January 2015!

I have storified all the tweets I could track from the WLPF event here (in reverse chronology):

Judge Posner, J.S. Mill and Same-Sex Marriage

Sometimes the gods of happy coincidence smile down on us as law teachers. This last week I have been working with my Legal Theory students on rights and freedom, and on Thursday Judge Richard Posner handed down the (unanimous) decision of the US Court of Appeals, Seventh Circuit in Baskin v Bogan, striking down legislative bans on same-sex marriage in the states of Indiana and Wisconsin.

In a closely argued 40-page opinion Judge Posner finds that the states’ bans breach the Equal Protection Clause of the US Constitution. The case does not address the argument that gay marriage should be permitted as a fundamental right. The decision thus sits within a framework of classical Equal Protection ‘suspect class’ legal analysis. It finds that the same-sex-marriage bans discriminate on the basis of sexual orientation, and that such classification, being based on an immutable characteristic of the group discriminated against, proceeds along ‘suspect lines’. Consequently the obligation falls on the states seeking to uphold the ban to rebut the presumption that they have breached the Equal Protection Clause, by showing that they have a compelling justification for their marriage limitations. This, in the court’s judgment, Indiana and Wisconsin both wholly failed to do. ‘Simples’ as a certain meerkat might say.

In truth, attempts to defend same-sex marriage bans have been facing a struggle in the US ever since the possibility of direct moral condemnation of homosexuality was precluded by Lawrence v. Texas. The defendants arguments in Baskin v Bogan were objectively weak, and there can be little question that Posner does an effective and at times humorously serious job of highlighting the implausibility (if not absurdity) of the arguments and hence the irrationality of the states’ discrimination. The analysis is littered with some extremely pithy observations – one of the most striking perhaps being that bans on same-sex marriage are even more onerous than bans on interracial marriage because they allow gay people no real prospect of marriage at all, whereas intra-racial marriages were at least permitted (p. 29).

But it’s in its reasoning and its (unusually) explicit philosophical basis that the judgment gets interesting for my purposes. In the course of argument Posner reframes the case within a distinctly Millian consequentialism, arguing that legal intervention is only justified where the act complained of causes harm to another’s person or interests. This can be seen in three key points of the judgment. First, Posner establishes that the denial of same-sex marriage causes significant harms (economic and psychological) to members of the gay community. Secondly, he rejects the idea (in the absence of any concrete evidence to the contrary) that permitting same-sex marriage of itself undermines the institution of marriage in expressly Millian terms:

We know that many people want to enter into a same-sex marriage (there are millions of homosexual Americans, though of course not all of them want to marry), and that forbidding them to do so imposes a heavy cost, financial and emotional, on them and their children. What Wisconsin has not told us is whether any heterosexuals have been harmed by same-sex marriage. Obviously many people are distressed by the idea or reality of such marriage; otherwise these two cases wouldn’t be here. But there is a difference, famously emphasized by John Stuart Mill in On Liberty (1869), between the distress that is caused by an assault, or a theft of property, or an invasion of privacy, or for that matter discrimination, and the distress that is caused by behavior that disgusts some people but does no (other) harm to them. Mill argued that neither law (government regulation) nor morality (condemnation by public opinion) has any proper concern with acts that, unlike a punch in the nose, inflict no temporal harm on another person without consent or justification. The qualification temporal is key. To be the basis of legal or moral concern, Mill argued, the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual….

….[W]hile many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts. (33-34).

Thirdly, Posner then turns to the argument that the primary or sole reason for marriage law

 is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility. The state recognizes that some or even many homosexuals want to enter into same-sex marriages, but points out that many people want to enter into relations that government refuses to enforce or protect (friendship being a notable example). Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homosexual sex cannot result in unintended births. (15)

 Posner addresses this claim over more than six pages of argument which, he asserts, demonstrate that the grounds advanced by lawyers for the two states “are not only conjectural; they are totally implausible.” He achieves this in two ways, by highlighting logical fallacies and inconsistencies in the argument, eg:

At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure. (19-20)

 

and by countering the evidential grounds relied on, eg:

The state’s claim that conventional marriage is the solution to that problem is belied by the state’s experience with births out of wedlock. Accidental pregnancies are found among married couples as well as unmarried couples, and among individuals who are not in a committed relationship and have sexual intercourse that results in an unintended pregnancy. But the state believes that married couples are less likely to abandon a child of the marriage even if the child’s birth was unintended. So if the state’s policy of trying to channel procreative sex into marriage were succeeding, we would expect a drop in the percentage of children born to an unmarried woman, or at least not an increase in that percentage. Yet in fact that percentage has been rising even since Indiana in 1997 reenacted its prohibition of same-sex marriage…. There is no indication that these states’ laws, ostensibly aimed at channeling procreation into marriage, have had any such effect. (23-24)

In both cases the sum effect is to demonstrate that the claimed benefits of the discriminatory policy do not or cannot justify the harms caused.

In the end, the Indiana and Wisconsin claims do not really constitute a hard case in the classical sense, but they are of interest in demonstrating how a judge can directly employ philosophical reasoning. I think they can also help highlight both the extent to which ‘harm’ itself can be a slippery concept, and that cases will often involve assessing competing harms, (as Posner observes, the state must be able to demonstrate that “the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” – p.5) rather than the straightforward choice between harm and no-harm that much of Mill seems to assume. Doubtless Posner would also contend that his consequentialism provides a more objective mechanism for dealing with such issues than a lengthy debate about fundamental rights or human dignity, but we are still left with the limitations of a consequentialist approach. The extent to which Posner’s approach relies on evidence of benefit/detriment is, arguably, one of its strengths – so long as the evidence is there, and is reliable, but what if the harms are finely balanced, or both sides are reduced equally to conjecture? Moreover, despite some fairly critical comments about elements of the defendants’ attempts to link marriage and parenting, Posner’s own reasoning relies heavily on the benefits of marital status to the adopted children of same-sex families, an argument that potentially falls flat in contexts where gay couples are still denied the right to adopt as well as the right to marry.

 

 

Plus ca change

In the week that the “iconoclastic” (according to Legal Business ) Professor Nigel Savage announces his pending retirement as President of the University of Law, it is interesting to reflect on the words of another senior vocational provider, commenting on the need to develop a more effective system of blended learning between the classroom and the office for the training of would-be solicitors:

…. a reform in this direction will eventually be forced upon the profession by the growing complexity of the law and the absurdity of spending many thousands a year on an official system of legal education which is debarred by out-of-date restrictions from giving of its best.

Sounds familiar? But the rub is the quote’s not from one of Nigel’s competitors at Kaplan or BPP, or any other current LPC provider, it was said by Dr G.R.Y. (Geoffrey) Radcliffe, Principal of the Law Society’s School of Law and Fellow of New College, Oxford in July 1939 during his Presidential address to the Society of Public Teachers of Law. Moreover, it referred to an even earlier proposal of the Cardiff Law Society that the (then) five year period of articles should be organised on what we might today call a sandwich model, layering sequential ten month blocks at law school, with 15 month blocks in the office. No disrespect to much that Nigel Savage has achieved, but given that 75 years on we are still engaged in variations of the same debate, how do we define iconoclasm in legal education? And when we’ve worked that out, could someone please tell the journos at Legal Business?

Holding a mirror up to nature

Rather belatedly I have caught up with a discussion over at Richard Moorhead’s Lawyer watch blog, in which Richard looks at the College of Law’s new two year LLB and questions the extent to which it is likely to be as different from other LLBs as it claims to be. A critical point in Richard’s argument is that

The real, intellectual difference between the College’s approach and the traditional law school’s approach is most likely between the College’s emphasis on teaching students in the practical utility of law. In the College this is likely to lead to solid practical teaching of solid practical legal skills in determinedly practical contexts. A bit of this is a good thing.  In fact, problem based learning is well established in some undergraduate curricula already.  But to concentrate on this to the exlcusion of everything else?  That gives me concerns.  Students are likely to be well trained in a mechanistic way but will they be inspired?  Will they understand the broader picture? Will they develop critical thinking skills?  The key thing that an excellent University education provides beyond the basics is those moments of inspiration, where the student’s world view may be genuinely transformed.

This post generated a number of interesting responses, including a thoughtful post from the College’s Scott Slorach. Amongst a range of points, Scott takes on Richard’s concern that the College will not address the ‘broader picture’, as follows:  

The broader picture is the understanding of the practical, contemporary contexts in which legal principles are applied in order to facilitate transactions, assert rights, allocate risk, seek remedies, govern businesses, define relationships, and so on. Providing this broader picture of the interests of individuals and businesses, and how practising lawyers use the law to maintain, develop and protect these interests is paramount to a deep understanding. I agree with you entirely that an excellent education should be one which provides the “spark [which] is necessary for life-long learning, commitment to professional ideals and to produce the truly exceptional individuals who can cope with transformative change. It is also necessary for the quality of university as a life experience.” I believe that providing students with the aforementioned broader picture will create an environment where the sparks will be in the form of “Now I see why…”, “So that’s how you can…”, etc. That is, understanding not only what the law is, and why the law is as it is, but, most importantly, how it can be used practically for the benefit of individuals and businesses. It is this latter relevance which can provide understanding and continued motivation to learn from the start.

Now we could, of course, just mutter that there is room for many approaches and respect the virtues of a thousand flowers blooming and leave it at that, but I can’t help but wonder if there isn’t something fundamentally a bit troubling about Scott’s response.

I agree absolutely that degree level education needs to address the various dimensions of “what”, “how” and “why”, but I am concerned that what Scott offers is (i) not necessarily a “broader picture” – though it may be different from what many law schools currently offer – and (ii) both (as that paragraph demonstrates) an elision of the how and the why, and a prioritisation of a particular how that may be ethically troubling. If we present law in a primarily vocational setting that emphasises the ‘use of law for the benefit of individuals and businesses’ that seems to fit rather well with the utilitarian ethos of the times. It is pragmatic in a way that may well attract students focused on their future job prospects, though they may not actually have a great grasp of what will best equip them for the marketplace, and it may be moot whether any law degree presently fits that bill (which is, of course, one of the questions LETR is looking at). But is it what our students, and society, actually need a higher legal education to be?

At the risk of over-simplifying the issues, I worry that Scott risks prioritising a hired gun model of lawyering, by narrowing students’ understanding of the social context in which law operates to the horizon of the prospective client. Doesn’t a deeper and broader understanding of context require a grasp of the wider social functions and moral ambitions of law, and doesn’t the examination of that require some commitment among teachers of law to understanding and researching ‘law in action’ (a wider concept than law in practice?) and, dare I say it, a philosophy of both law and education, not just training? Law degrees probably should engage with the practice of law more, and I absolutely agree that understanding ‘why’ in a practical context can be a really useful trigger. But its not the only one. A wider understanding of the social context enables us to shine a critical light on, not just hold a mirror up to nature. And isn’t that the way it should be?   

 

Creativity and assessment

With the demise of UKCLE, I have got drawn into a bit more teaching this term than in recent years – even with the buyout for LETR. And I have to say I’m really enjoying it, I’ve got a nice mix of undergraduate legal theory, postgrad teaching on a module we call Foundations of Socio-Legal Theory and Research, and a joint Law and Business module – Critical Issues in Law and Management (CILM) – that my colleague Grier Palmer (Warwick Business School) has developed. CILM is one of those great modules where content in a way comes second to process. It is primarily a vehicle for developing creativity and critical thinking, and so we use a lot of student-centred activity and presentation work, a bit of open-space learning, and assess through an essay, book review, and a set of reflective logs. Its quite experimental for both the students and those of us teachng on it!

One of our experiments this year, which is linked to a larger project on case-based learning that Grier and I are involved in for Warwick’s Institute for Advanced Teaching and Learning (with colleagues from education, health, and the Medical School), has been to create a case study around the notorious Bhopal gas tragedy. Twenty-seven years after the original explosion at the Union Carbide plant in Bhopal, this is still having a massive impact on the lives of its victims  As a case study it is a massively rich and powerful teaching resource. There are lots of primary and secondary materials available, and it provides a good vehcle for exploring a range of related legal, business and human rights issues.

We decided to run the Bhopal case as a student-led activity – we have a group of 10 CILM students who take the course as a 30 credit module, rather than the usual 24. So, their ‘6 CATS project’ this year was to lead the rest of the class in preparing to stage and then staging a Peoples’ Tribunal hearing on the continuing impact of the Bhopal tragedy. This work was spread over four weeks and integrated into the class time, starting with a briefing session for the 30 CATS students  in week 1, followed by a ‘book review’ session for the whole class – discussing and critically analysing a range of academic literature on the Bhopal tragedy. That in turn was followed in week 3 by a student-led session in which the 30 CATS team briefed and worked with their 24 credit peers on planning the tribunal. The tribunal itself was then held in week 4, over a two hour teaching slot.

We haven’t yet seen the 30 CATS students reflective pieces on this activity, but my initial sense is that it was reasonably successful, and something I would like to further develop. One of the great things about it was that, with a cohort of around 50 students on the module, we had two iterations of both the planning session and the Tribunal itself. This really gave the 30 CATS students an opportunity to reflect on what worked well and what didn’t, and to take action almost immediately to implement change. This worked really well in the planning session, so that the second was noticeably more structured, better managed and more dynamic – a great example of how students can really very quickly learn from experience. Interestingly, though the 30 CATS students are assessed on the whole process, not just the Tribunal, a lot of the assessment anxiety clearly homed in around the tribunal performance itself. One manifestation of this was that, though there was some really great content, the event was closely scripted and lacked a bit of the dynamism and creativity we were hoping to see. This isn’t meant as a criticism of the students; they could see it for themselves, and it one point in the second iteration, they ‘let go’ of the script and engaged in a bit of improvisation, and in that moment brought a wholly different energy to the activity .

For me it raises some interesting challenges. The assessment context clearly had a chilling effect and encouraged the students who were being assessed to play it a bit safe, even though that involved an element of discrepant reasoning, since they also knew that creativity was something they would get credit for. As a teacher, I want to maximise the opportunities for my students to think and act ‘outside of the box’, and to get credit for it; I don’t want to marginalise creativity by treating it as unassessable. I I therefore want to create a  space for enabling and encouraging risk-taking, and now I’m wondering whether that needs to be constructed as somewhere safe, or maybe it does need to be slightly edgy? I also want to get inside and disrupt that kind of intuitive cost-benefit thinking which drives them to play safe, and, I suspect, is ingrained by years of traditional assessment practices. I can already see that we may have left a gap between creativity and risk-taking, both conceptually and in terms of getting the message across about what we were looking for from this asssessment. So, a bit of work to be done!