Legal warming

I confess to being underwhelmed by the 104 page Breaking The Frozen Sea: The case for reforming legal education at the Australian National University report [PDF] regarding law teaching at the ANU, one of those documents that - as yet - seems to have been discussed more often than it has actually been read.

Melanie Poole, the lead author, comments that -

Kafka wrote that 'a book must be an axe to break the frozen sea of our soul'. I hope that this report can remind us, as a law school community, of how powerful and transformative the law can be. Even the firm hand of stare decisis cannot enclose the human minds and human souls that create, defend, contest and interpret the law. As we study the rules, we should also reflect on our own role in shaping them. As we learn how to 'think like lawyers', let's also cultivate our capacity to think like human beings. As we confront the frozen sea of legal education, let's raise our axes high.

One immediate response might be that 'thinking like a lawyer' and 'thinking like human beings' are not antithetical. Thinking like a lawyer - it's somewhat unclear what that involves - may be useful in protecting and improving the lot of human beings, and indeed of non-human beings. Another response might be to ask whether legal teaching - or 'the law' - is a frozen sea, and whether the cold is determined by the legal profession and Australian society rather than by the Law Dean, the Vice-Chancellor and the academics. The report doesn’t go very far in addressing "how powerful and transformative the law can be": students in search of a reminder about power and transformation would be better off reading Brown's recent biography of Michael Kirby.

Ms Poole argues that -

Law schools are places where many of the world's smartest, most privileged, most powerful (or about-to-be-powerful) people accumulate. But instead of focusing on the things that really matter, instead of developing our capacities as problem solvers, peacemakers, activists or great leaders, we are taught a narrow set of technical, commercially oriented skills. Instead of learning to collaborate with others - that it is amazing what can get done when it doesn't matter who gets the credit - we learn that we should compete, fiercely self-promote and reproduce hierarchy. And instead of opening the door to the wide world of opportunities that awaits us, law schools foster the misleading conception that the 'real world' of law is found only in corporate practice.

That is hardly an original lament. More importantly, it elides questions about student responsibility, about the appropriateness of student expectations and about the role of the legal profession.

The report refers to "a remarkable level of dissatisfaction and cynicism amongst law students and young lawyers across Australia and the English speaking world". Remarkable? Remarkable relative to what? More remarkable than in the past? More remarkable than other professions? Or of blue-collar trades? How much of the dissatisfaction is attributable to what the report expresses as -

While some students cite the prestige and earning capacity of a law degree, other students voiced a desire to use their knowledge and skills to change society. Importantly, students acknowledged that their motivations for pursuing a law degree were not clearly defined. Many students took up the degree to test it out, or because they understood law to be a versatile degree, or – in a remarkable number of cases – 'because they got the grade for it'.

A remarkable number? Perhaps law teaching should be at the postgrad level only, with entry after a humanities degree or several years in the workforce as an adult. A smaller cohort of self-involved, naive and and aimless princesses might reduce the collective angst.

The authors comment that -

Students felt that a lack of meaningful assessment feedback reduced their ability to learn and to improve themselves. Students said they sacrificed their personal lives to study harder, and that when this failed to produce results, they felt inadequate, insecure and frustrated. ... Students found problems with the highly individualist and often adversarial nature of law school assessment practices. While it should be acknowledged that some students 'thrive' on healthy competition, many students stated that student isolation was bolstered by a focus on individual assessment instead of collaborative forms of assessment. Students stated that the banded grading system reinforces this unhealthy competition by ensuring that a few people are 'winners' and most others are 'losers'.

Regrettably there is no acknowledgement of challenges regarding "collaborative forms of assessment". The proposed solution seems to be -

the use of 'democratic learning'. Democratic learning is student-centred and student-contextualised education in which staff and students work together to create the learning environment environment. Staff and students would be equal members in a community of shared educational purpose. ... [and] student-facilitated learning. In this method, later-year students facilitate newer students’ education, encouraging peer-to-peer learning

Fortunately the P2P reference isn't accompanied by other education 2.0 buzzwords.

The report calls on ANU Law to

1. Recognise that the purpose of legal education is as multifaceted and diverse as its stakeholders.

2. Foster this diversity within legal education by:

2.1 Embedding critical perspectives into the curriculum;
2.2 Providing students with meaningful opportunities to reflect on their reasons for attending law school;
2.3 Ensuring that staff and student deliberation on the purpose of legal education is systematically fostered.

3. Provide diverse learning opportunities by:

3.1 Increasing opportunities for clinical placements;
3.2 Encouraging opportunities for civic and workplace involvement (ie volunteer work and work experience);
3.3 Moving extra-curricular activities such as mooting, negotiations and client interviews into the core curriculum;
3.4 Including activities such as submission writing, negotiation and advocacy in assessment.

4. Foster more engaging tutorials by:

4.1 Rearranging tutorial rooms so that students are facing each other [!];
4.2 Providing tutors with guidance on facilitation techniques and methods to engage students in discussion;
4.3 Appointing tutors based on their teaching ability in addition to their expertise in substantive law;
4.4 Allocating marks for tutorial participation where it is clearly tied to learning outcomes and provides an opportunity for genuine, interactive and intellectually engaging participation.

5. Reduce lecture sizes by any means (ie through lecture streams in large compulsory courses).

6. Ensure consistent and high quality teaching through a teaching evaluation process that places increased emphasis on student feedback.

7. Enable students to assess how they have met their own learning goals rather than simply assessing the quality of 'service delivery'.

8. Restructure the curriculum to achieve a greater balance between doctrinal material, diverse learning environments and activities and the study of law in a social, political, historical and cultural context.

9. Adopt a holistic, whole of degree, approach to assessment to provide students with the full range of competencies and skills identified in the ANU College of Law's Graduate Attributes document.

10. Increase the variety of assessment that students are required to complete (ie to include group work, oral assessment and clinical placements).

11. Increase the variety of written assessment that students are required to complete (ie to include case notes, written submissions, policy documents, reports and reflections).

12. Ensure standardised and transparent assessment processes by:

12.1 Providing clear and thorough information on assessment requirements, including the criteria on which an assignment will be assessed;
12.2 Providing constructive feedback, with reference to the assessment criteria, which indicates to students how they can improve their performance.

13. Abolish banded grading and replace it with an alternative grading system (ie a pass/fail system). The ANU College of Law should conduct an additional thorough review of its grading policy.

14. Create a dedicated course to develop legal reading, writing and reasoning skills.

15. Improve student access to teaching staff and encourage increased mentoring by staff.

16. Instigate a mentor program with professionals outside the spheres of academic and corporate law.

17. Enable students to learn and improve through assessment by:

17.1 Ensuring routine and standardised transparency and feedback on assessment;
17.2 Providing model answers to assessment tasks;
17.3 Reducing emphasis on highly weighted individual exams;
17.4 Increasing use of smaller, continuous and collaborative assessment tasks.

18. Augment teaching of critical thinking, from the beginning of the law degree by:

18.1 Making critical perspectives part of assessment;
18.2 Making some critical courses mandatory;
18.3 Communicating the value of trans-disciplinary perspectives to students.