ALT - 47 Annual Conference – (Re) assessing Legal Education Lady Margaret Hall – Oxford University Topic Stream: The review (and assessment) of legal education Emeritus Professor David Barker AM1 The Review and Assessment of Legal Education within the Australian Context Abstract: Within the last decade Australian Legal Education has been subject to progressive periods of assessment by the Australian Learning and Teaching Council (ALTC) – now abolished, the Council of Australian Law Deans (CALD), the Law Admissions Consultative Committee (LACC) and the International Legal Advisory Council (ILSAC) together with various State admission boards. This paper not only reviews the contents of these various projects but seeks to make an assessment of the claims by the various authors as to how the approach and outcomes incorporated in the projects will affect the future of Australian legal education. Reflecting in particular on the aims expressed in the CALD/ALTC final Report on Learning and Teaching in the Discipline of Law this paper not only attempts to record exemplars of successful innovative practices currently in use within Australian law schools such as mapping the current diversity of student profiles and legal education programs, it also focuses on the development of Law Graduate Attributes and explores the settling of formal standards for Australian law schools. The paper also recognises the necessity for the introduction into any such study of the incorporation of Threshold Learning Outcomes (TLOs) within undergraduate and postgraduate law degree programs. The intention of this proposal is that TLOSs will assist Australian law schools in their implementation at the requisite qualification level. It is intended to place this review within the international context by taking account in particular of the Browne Review within the United Kingdom, and also in the United State of America, the Carnegie foundation for the Advancement of Teaching’s recent report: Educating Lawyers: Preparation for the Profession of Law in the United States. The proposer of this paper intends to draw on his experience of recent conference paper presentations on this topic together with both his editorial and book review experience in his capacity as the Editor of the Legal Education Digest 1. Introduction 1 PhD Student at Macquarie University 1 There is a great deal of similarity between the current dilemmas faced by legal educators throughout various common law jurisdictions, particularly Australia, England and Wales and the United States. Until recently for Australian legal educators there has been an undue effect of the Pearce Report2 which it has to be realised was published as long ago as 1987. Account has also to be taken of the outcomes of the Consultative Committee of State and Territorial Admitting Authorities formerly chaired by Justice Priestley of the NSW Supreme Court. This compiled a list of compulsory subjects for academic legal study which became known as the Priestley Eleven3 which was subsequently expanded to the Priestley Twelve to take account of practical legal training. 2. Australian Legal Education Constraints of space restrict the explanation of the manner in which legal education operates in Australia. Anyone requiring an in-depth exposition should read Chapter 2 Education, training and accountability contained in the Australian Law Reform Commission Report No 89 Managing Justice – A review of the federal civil justice system.4 This states that ‘Legal education in English speaking countries also has been affected by their traditional common law paradigm of private legal practice, regulation of the profession, the courts, and the appointment of senior practitioners (usually counsel) to the judiciary.’ It has generally been described as being ‘divided into three relatively discrete stages, involving (1) academic training at a university; (2) subsequent practical training with both institutional and in-service components; and (3) continuing education.’ Relevant to this discussion is the fact that with the rapid growth in the numbers of law undergraduates and law schools. In 1960, there were six university law schools, one in each State capital, but at the time of the publication of the Pearce Report in 1987 this number had increased to twelve law schools although it is difficult to keep pace with the establishment of new law schools, as at the last count, there were thirty four law schools, so that there has been an expectation for some form of national standards and/or accreditation. 3. The Establishment of National Standards – Council of Australian Law Deans Standards for Australian Law Schools In Chapter 2 of the ALRC Report 89 there is an interesting account of a previous attempt by the Law Council of Australia in 1994 to establish a National Appraisal and Standards Committee to accredit law schools and the reason why it failed. This was principally because of the ‘suggested composition of the Appraisal Committee (with only four of the eleven members being legal educators); the intrusive nature of the terms of reference, which 2 D Perarce et al Australian law schools: A discipline assessment for the Commonwealth Tertiary Education Commission AGPS Canberra (1987) (‘the Pearce Report). 3 Law Admission Consultative Committee (LACC) Compulsory Areas for Academic Legal Study (‘the Priestley eleven’). 4 The Australian Law Reform Commission, Managing Justice – A review of the federal civil justice system, Report No 89 (2000). 2 included internal matters of personnel and resource management; and the unexplained method for funding such a labour-intensive system.5 Since this occurrence there has been no serious attempt either by a central organisation or by any of the State Supreme Court Admission Bodies to exercise a form of control with regard to National Standards or the accreditation of law schools. However, in 2007 there was greater co-operation between the Law Council and CALD with regard to this question of the review of standards and accreditation. Following a meeting with all the relevant parties at the Law Convention in Sydney in 2007, the Law Council established a Legal Education committee which included representatives from CALD, ALTA, APLEC and ALSA to discuss mutual problems and developments relating to legal education. It also has to be appreciated that until this time, within CALD itself there had never been a generally accepted view with regard to a system of national standards or accreditation of law schools. To a certain extent this had been exacerbated in recent years by the strong competition between law schools for during and enrolment of fee-paying students. An outcome of this greater co-operation within CALD was the establishment of a CALD Standing committee on Standards and Accreditation which sought the assistance of Christopher Roper AM in the drafting of a document ‘Standards for Australian Law Schools.’6 Christopher Roper has had an outstanding record in legal education having been Head of both the Leo Cussen Institute in Melbourne and the College of Law in Sydney, the Director of the Centre for Legal Education and the College of Law Alliance and former Adjunct Professor at the City University, Hong Kong. A brief history of the standards project has been drafted by Professor Michael Coper, the then Chair of the Standards Committee, and was published on the 9 March 2008.7 To ensure that the exercise should be inclusive this was circulated with a copy of the ‘Standards’ to all Law Deans so that it could be considered at their appropriate law school meetings. The brief history is a useful explanation of the main standards document. It encapsulates the history and purpose of the CALD standards project. The most significant statement within this account is the paragraph which states: ‘It should be said immediately that the overwhelming purpose of the CALD standards project is to enhance the quality of Australian law schools in all of their diverse endeavours, and to do so by assisting all Australian law schools to strive for and reach a clearly articulated set of standards.’8 This was linked with the previous explanation regarding the project which was published in an edition of the ALTA Newsletter at the time which drew attention to the fact the standards project was part of , and within the context of, another CALD project funded by the former Carrick Institute for improving learning and teaching the discipline of law and reviewed later in this Paper.9 The paragraph concludes with: ‘The point is that the standards are intended to be beneficial, not punitive, they are written largely in general rather than tightly prescriptive terms, and allow for diversity in the different ways in which law schools might seek to fulful their particular 5 Ibid 123. Council of Australian Law Deans: Standards for Australian Law Schools Final Report (March 2008). 7 Michael Coper, A Brief History of the CALD Standards Project (March 2008). 8 Michael Coper, CALD Report , ALTA Newsletter (Summer 2008). 9 Ibid 2. 6 3 missions. The object is to lift the quality of our various contributions to the discipline of law as a whole, and work together to do so.’10 As to the standards themselves their relevance is incorporated in an unanimous resolution adopted by CALD at its first meeting in 2008 at the University of New South Wales, Faculty of Law, Sydney on the 4 March. Because of the location of the meeting the resolution has been entitled the ‘Coogee Sands’ Resolution.11 The Resolution , which is in three parts, commits members of CALD to the principle of the standards for Australian law schools as set out in the Roper Report. They have also agreed to a process of certification of compliance with the standards, and in particular with regard to identifying which of these should be core or minimum standards and which should be aspirational. With regard to the standards document much of it is concerned with matters which have been the cause of discussion and debate within most law schools over recent years. It is however important that such matters are now incorporated in an all embracing document subscribed to by the representatives of all Australian law schools. This means a commitment to graduate attributes, a clear understanding of curriculum design and educational methods, curriculum dissemination and assessment of students. More relevant within a document of this nature is that CALD is willing to define a basic requirement for academic staff, their profile and an outline of their duties. Even more significant is their willingness to define the basic expectations with respect to the law library or law collection, resources and infrastructure, the nexus between teaching and research, governance and administration of the law school. Because of a lack of consensus of its members in the past these were topics which CALD had been unwilling to consider as part of its remit. Statements such as ‘the the title of the academic head of the law school is dean’ and ‘the law school has a dedicated operational budget and the responsibility for managing it,’12 would have been considered unacceptable in a CALD resolution a few years ago. 4. Critique of the Standard for Australian Law Schools It was very interesting to observe the questions which were raised after the adoption of the Coogee Sands Resolution as to its acceptability within the legal education community. In an article in the May 2008 edition of the NSW Law Society Journal,13 Luke Slattery stated that ‘Australian legal education is set to undergo an historic overhaul as law school heads consider a controversial proposal to set both minimum and aspirational standards for incorporation into a national accreditation process.’ In this article he was adept in focusing on those issues which had divided members of CALD in the past, and which could create divisions in the future within CALD when it was to meet again later in the year. He based this on the view that some law deans might consider that the implementation of the recommended standards was a move ‘by deans from the Group-of-Eight law schools - to 10 Ibid 2.. CALD Meeting Special Resolution 2008/1 – Standards (2008) (‘the Coogee Sands Resolution’). 12 Ibid 13. 13 Luke Slattery ‘Law deans divided on standards proposal for acceditzation’ (2008) Vol 46 No 4 Law Society Journal 22. 11 4 stratify legal education and formalize and institutional hierarchy.14 There was also a view articulated by Professor Tryone Carlin, the then Dean of Law at Macquarie University concerning the danger that the Standards would result in ‘a move towards greater curriculum uniformity’.15 In contrast was the quotation by Arie Freberg, the Dean of Monash University’s Faculty of Law who stated that: ‘What’s important now is to maintain our national and international reputation. You’ve got to have some way of accrediting or backing up the quality of the lawyers we’re putting out.’16 Actually none of the concerns voiced by Slattery and Carlin transpired and the consensus view at the time was that if CALD had not developed this draft national charter of standards then the initiative would have been taken up by some other formal body such the Law Council of Australia or the Standing Committee of Attorneys-General (SCAG). Although this document did not create a form of self-regulation by CALD, it did mean that at the time there was a high probability, as was suggested by Professor Bill Ford, the CALD Chair, ‘that it will be available to the Law Admissions consultative committee, which will use it as the basis for its discussion on accreditation from jurisdiction to jurisdiction.’17 Up and until the current time of the writing of this paper there does not appear to have been a general implementation of the standards document by Australian law schools. However where it has been useful is in its use as a bench mark document for those universities such as the Royal Melbourne Institute of Technology University and Central Queensland University who have both recently introduced a law degree programme into their institution. 5. Complementary Related Project - Learning and Teaching in the Discipline of Law Building on the success of their major Report in 2008, Standards for Australian Law Schools, adopted by the Council of Australian Law Deans (CALD) in March 2008 and ratified by the ‘Coogee Sands’ Resolution, a complementary related project was finalised by CALD in 2009. Entitled: Learning and Teaching in the Discipline of Law: Achieving and sustaining Excellence in a Changed and Changing Environment, it was funded by the former Australian Learning and Teaching Council (ALTC). The contents of this Report (CALD/ALTC Report) are also the subject of this paper (subsequently referred to, for the sake of brevity, as the ‘CALD Project /Report’). By way of explanation with regard to the financing of the Project, funding was channelled through the Australian National University (ANU) which was the higher education institution in formal receipt of what are described as an ALTC Discipline-based Initiative (DBI) Grant Scheme funds. The motivation for this paper was the realization that it was only recently that CALD had become involved in the undertaking of or sponsoring research into legal education. The fact that CALD has been in existence for 32 years (originally established as an Interest Group of ALTA in 1978), makes its previous lack of willingness or enthusiasm to involve itself in such undertakings appear strange to an outsider, but to those who have been involved with 14 Ibid 22. Ibid. 16 Ibid. 17 Ibid 21. 15 5 operations of CALD it comes as no surprise. CALD, after all, is an association of the 34 law schools in Australia. Until recently there have been disparities in the size, status and the way in which these law schools have been funded by their respective universities. This has meant intensive competition between them for students, particularly international students, and also for the receipt of government funding especially with regard to Australian Research Council (ARC) grants. However recently there was a realization that if the CALD membership did not support their representative association in providing a united front in its negotiations with government organisations and in its dealings with similar discipline based associations and professional legal bodies such as the Law Council, then legal education would miss out in maintaining itself as a legitimate form of major study within the tertiary education sector. This semi-supportive approach may be illustrated by the background to the former Australian Universities Teaching (Committee) AUTC funded project on which the current project has been built – Learning Outcomes and Curriculum Development in Law18. The background to this project indicates that in the first instance it was supported by a minority of Australian law schools and it was only in the final stages that it received the general backing of CALD and was launched at the 2003 Commonwealth Law Conference in Melbourne. This Report will be referred to in fuller detail later in this paper. 6. Background to the CALD Project on the Future of Australian Legal Education The executive summary to the project document states that: ‘The key purpose has been to enhance and sustain excellence in teaching and learning in the discipline of law, through developing concrete and practical innovations which acknowledge diversity while also establishing an infrastructure to support sustainable change.’19 Compared to previous CALD publications it has to be realized that this is an all embracing document, which CALD needed to undertake if it was going to be able to assert the legitimacy of legal education as a discipline of equal standing with other disciplines, particularly within the Social Sciences and Humanities. This ongoing problem for the role of university law schools was reflected in the statement contained in the Australian Law Reform Discussion Paper 62 which said: ‘Law faculties are attractive propositions for universities, bringing prestige, professional links and excellent students, at a modest cost compared with comparable professional programs such as medicine, dentistry, veterinary science, architecture or engineering.’20 This ongoing complexity for those responsible for the conduct of legal education at the tertiary level was further emphasised in the same Report which stated: ‘To some extent, law is coming to be seen as a prestigious generalist degree that can prepare students for a variety of occupations. At the same time, law schools recognise their responsibility to provide the training necessary to prepare future legal practitioners and there is a trend towards increasing the proportion of time and resources devoted to professional Richard Johnstone and Vignaendra, ‘Learning Outcomes and Curriculum Development in Law’ (2003). [online] URL: http://www.cald.asn.au/docs. at 8 December 2009. 19 Susanne Owen and Garry Davis, Learning and Teaching in the Discipline of Law: Achieving and Sustaining Excellence in a Changed and Changing Environment, Australian Learning & Teaching Council, Council of Australian Law Deans, Report Finalisation: 2009, 3. 20 Australian Law Reform Commission Discussion Paper 62 Review of the Federal CivilJjustice System , Sydney 1999 ch 3 (ALRC DP 62) [ 3.13]. 18 6 skills training , whether through clinical or classroom based methods.’21 It can be seen from both these statements that the time was opportune for CALD to initiate a project which would ‘…closely examine[d] a number of areas associated with ensuring the provision of high quality legal education to achieve quality outcome for a diverse range of students entering upon a course of study in law.’22 The CALD Project is also impressive for the manner in which it has endeavoured to embrace the views of all those various stakeholders in legal education ranging from legal academics, law students, legal practitioners and members of judiciary to the legal community generally. Among its stated outcomes are an attempt to achieve a more coordinated approach between CALD and other legal organisations, examine graduate attributes and focus on law students attaining a full range of graduate qualities, particularly those associated with professional values, ethics and social responsibility. The CALD Project also highlights the ongoing awareness of psychological distress levels both within law schools and among members of the legal profession generally. Finally the CALD Project identifies the need to re-design the legal curriculum, ensuring that it becomes less prescriptive and more oriented towards the broader skills related to professional and personal attributes.23 7. Scoping and Methodologies Before attempting to evaluate the effectiveness of the CALD Project it is important to review the manner in which the authors conducted the extraction of the research information and data which underpinned the report. As highlighted in the opening stage of this conference paper, the Project acknowledges the contribution of the AUTC Project: Learning Outcomes and Curriculum Development in Law (Johnstone & Vignaendra, 2003) towards the success of the current Project. As an aside, I am in a position to support this acknowledgement having been the Chair of CALD when it launched the AUTC Report at the Melbourne Commonwealth Lawyers Conference in 2003. The Johnstone and Vignaendra 2003 Report was a major piece of research which has never received the appropriate recognition due to such a wide ranging undertaking. As the CALD Project states: ‘The report provided a stocktake of legal education developments in Australia and incorporated a wide range information including the identifying responses to changing circumstances, mapping revised teaching and assessment methods, gauging student awareness of expected learning outcomes, examining the impact of globalisation and changing information technologies on teaching and learning, identifying the role of professional experiences within curricula, outlining graduate employability and employer satisfaction, the impact of double/combined degrees and balance of undergraduate and postgraduate programs and highlighting ‘best practice’ in law teaching and learning. 24 In comparison the current CALD Project concentrates on a claimed enhancement and sustained excellence in teaching and learning in the discipline of law which has taken place 21 Ibid [3.14]. CALD/ALTC Report, above n 2, 3. 23 CALD/ALTC Report above n 2, 4. 24 Ibid 7. 22 7 over the past 20 years.25 It asserts that part of this is due to the proliferation of law schools in Australia with a consequent expansion of both law teacher and student diversity and multiple and diverse modes of legal study such as combined degrees, degrees for graduates of other disciplines, the fast tracking of degrees, and the development of flexible forms of delivery.26 The key trends supporting this development include: Practical legal training skills: Ethics, professionalism and service; Graduate Attributes; internationalism, and information technology (IT).27 The methodologies used involved all members of the academic community indentifying these key issues, incorporating updating workshops, regional roundtables, the sharing of ideas and mapping of current practices. Students were also asked to complete surveys relating to mental health issues, whilst legal academics completed updating surveys on ethics and professionalism.28 The contents of the CALD Project Report indicate that the project team made good use of their generous funding and contacts through the CALD network to utilise this support in the best way possible. The success of this coordinated approach is contained in Chapter 3 Overview of Project Reports, incorporating their findings and outputs, and Chapter 4 Law Students and Programs in Australia. The former contains case studies by which the project’s authors have been able to examine the emerging trends in both the various law curricula and course programs of all Australian law schools.29 Chapter 4 contains some extensive information regarding the statistics collected in respect of enrolments at the various Australian law schools.30 However, there are some disturbing omissions regarding some areas such as where one major law school has failed to supply any information regarding student enrolments. In some other tables there is what is described as incomplete data in respect of the breakdown of statistics relating to gender and age balance of law student enrolments in 2007 that being the last year for which such data was available31. However in comparison to the statistics and data contained in previous reports of this nature, the information collected here is impressive despite the caveat above regarding missing data. As the summary to Chapter 4 indicates: ‘The implications of this data are that, given the increasing number of law students and diversity of academic needs, including catering for part-time students and a greater number requiring external enrolment status and from wider age backgrounds, university law schools increasingly must make appropriate accommodations to programs and to teaching and learning.’32 The summary to Chapter 4 emphasises the need for legal education to adapt to the demands of increasing student enrolments and the wider socio-economic backgrounds of the average law student. It recognizes that law teachers will have to be more imaginative and respond to the changing requirements of modern law students. 25 Ibid. Ibid. 27 Ibid. 28 CALD/ALTC Report above n 2, 12. 29 Ibid 18. 13 Ibid 34. 31 Ibid. 32 Ibid 51. 26 8 The trend in the report is unequivocal in encouraging law academics to adapt to these changing needs of law students: ‘There is pressure on legal academics to use more engaging approaches and to work demonstrably as facilitators of learning, scaffolding student experiences to provide opportunities for success such that the learning needs of all the variety of students are capable of being satisfied.’33 Further on in the summary this is reinforced by the statement that: ‘Rather today , in order to produce a more fully rounded law graduate, legal education must be oriented specifically to develop and nurture the desired qualities, alongside such knowledge acquisition as is deemed fundamental in these modern times….[T]hese are qualities rooted in professional skills and attitudes.’34 . 8. Graduate Attributes. Because of the greater pressure on Universities to produce graduates who are to become future members of the professions, in recent years there has been a need to focus on aspects such as knowledge, skills and personal attributes as part of their tertiary education. It is interesting to reflect that one of the first Educational Reviews in which this was highlighted was the Report of the Review Committee on Higher Education, Financing and Policy – 1998 – the West Review.35 This is reflected in the CALD Report in the following terms: ‘Critical thinking, communication and interpersonal skills, lifelong learning, independence, ethics and professionalism and leadership are some of the employability skills and Graduate Attributes which are consistently identified by universities and the various discipline areas.’36 The Report goes on to state that not only is legal education expected to take cognisance of these broader based university-specified Graduate Attributes but the law curriculum is also expected to meet the legal profession’s accreditation standards. Concerns have been expressed with regard to the creation of a dichotomy between the focus on content as required by the professional accreditation process versus the expectation of enlightened members of the legal community that there should be an emphasis on skills and values, as reiterated in the Australian Law Reform Commission (ALRC) Report, Managing Justice (2000), that: ‘legal education [should be] around what lawyers need to be able to do [rather than] what lawyers need know.37 However there is a consensus between the legal profession and legal educators regarding the need for lifelong learning within the profession which is an important competency within university Graduate Attributes. Chapter 5 of the CALD Report is a masterly exposition of all aspects of Graduate Attributes and of how they have been incorporated into the law curriculum. It summarises the 33 34 35 36 37 Ibid. Ibid. CALD/ALTC Report, above n 2, 54. Ibid. Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System Report No 89 (2000) [2.21]. 9 challenges facing legal educators with this phase: ‘The transformation of law teaching to include a broader focus on Reflection, Group work, Ethics and values formation and students undertaking work involving Role poses many challenges for academics learning new approaches.’38 The amount of work undertaken by many law schools within this area is set out within this Chapter and is an indication of the effect described as Collaborative learning from the regional roundtables39 which were convened in support of the CALD Project. This is reinforced by the following paragraph in the Report: ‘The regional round table meetings and analysis of Graduate Attributes documents from law schools indicated that there is widespread variation in the degrees to which Australian law schools have embedded Graduate Attributes in their curriculum. Nearly all law schools have developed some law-specific Graduate Attributes and aligned these with the Graduate Attributes of their respective universities.’40 9. Ethics Professionalism and Service As the appropriate chapter in the CALD Project Report points out, the original requirements of the ‘Priestley 11’ incorporated into the Uniform Admission Rules, did not mention Ethics by name but assumed that it would be provided for under the title of the subject ‘Professional Conduct (including basic Trust Accounting)..’ The account in the CALD Project Report reflects some of the confusion that has arisen in recent years as to the context for the teaching of ethics. As it states, there is no clear pattern which has arisen for the teaching of ethics in the LLB curriculum: Quoting the AUTC Learning Outcomes Report that: ‘Some Schools had ensured that ethics was dealt with at different points of the curriculum, and revisited frequently, and in other schools this appeared to be an aspiration, or an article of faith, but there were no formal arrangements to ensure a co-ordinated approach to the teaching of legal ethics, and its infusion through the curriculum.’41 The CALD Project Report draws on advice and recommendations relating to Ethics contained in the Admission Rules of the various State and Territory legal jurisdictions, the Law Admissions Consultative Committee (LACC), the Pearce Report, the Carnegie Report and the Australian Law Reform Committee Report No.89.42 There is a wealth of material relating to all aspects of Ethics and the manner in which it is and might be taught and assessed. This chapter is well supported in the Appendices – Attachment B. Some Innovations in Assessment in Legal Education. Section 2 Ethics B8 to B12, particularly with regard to B10 Ethical dilemma assessment task.43 It might have assisted the debate if the Project had included the approach which has been 38 39 40 41 42 43 CALD/ALTC Report, above n 2, 55. Ibid. CALD/ALTC Report above n 2, 56. Johnstone & Vignaendra, above n 2, 122. CALD/ALTC Report above n. 2, 89. Ibid B8 – B12. 10 adopted by the legal profession towards this aspect of professional responsibility. This could have included the Model Rules of Professional Conduct and Practice promulgated by the Law Council of Australia in February 2002 and regarded as a statement of ethical practising standards for legal practitioners. These are currently being updated by a reference body, the National Conduct Rules Reference Group, the outcomes of which are expected to result in a single set of Mutual Conduct Rules to be ultimately linked into the COAG National Legal Profession Project. In addition the New South Wales Law Society in 28 May 2009 proclaimed a Statement of Ethics which incorporated eight aspirational statements such as: ‘we act competently and diligently in the service of our clients; etc.’44 The latter part of the chapter is related to the ongoing debate of the role of ‘pro bono legal service’ within legal education. The CALD Project Report acknowledges that whilst: ‘CALD has professed a view in favour of experiential learning that can expose students to, and deepen, their understandings of a service culture to meet social disadvantage,’ it also states in the Project Report that: ‘In reference to the National Pro Bono Task Forces’s recommendation (National Pro Bono Task Force, 2001 32) that CALD consider the development of a national policy regarding pro bono as a mandatory part of legal education, CALD has indeed considered possible approaches. Although to date it has refrained from adopting a formal policy…’45. This ongoing reluctance by CALD to adopt a formal policy whereby all law students in Australia would have to become involved in pro bono programs of clinical legal education as part of their legal training was adversely commented upon by the Hon. Michael Kirby in his forward to the text Community Engagement in Contemporary Legal Education. This reported on a forum held at Bond University in November 2008 which considered the question as to whether Australian law schools should have any role in servicing legal needs and if so, how best it could be done?46 10. Legal Education and the Mental Wellbeing of Australian Law Students One of the goals of the CALD Project was the development of: ‘… baseline data regarding the mental wellbeing of law students including their understanding of relevant issues, personal experiences and knowledge of assistance mechanisms which are in place.’47 This also reflects the concerns of the legal profession whereby, for example, the New South Wales Law Society has been running a series of Seminars entitled: The Lawyers Guide to Sanity, Profitability and Wellbeing, to Regional Law Societies, dealing with the problems of mental wellbeing and stress of their members. The CALD Project Team sought professional advice in dealing with this topic, and liaising with and facilitating a study being undertaken by a research team led by Professor Ian Hickie of the Brain & Mind Research Institute at the University of Sydney.48 David Barker ‘Ethics and Professional Responsibility’ , (Paper presented to the City of Sydney Law Society, Sydney, February 2010). 45 NSW Law Society ‘Statement of Ethics’ (2009). 44 46 Patrick Keyzer, Amy Kenworthy and Gail Wilson (eds) , Community Engagement in Contemporary Legal Education: Pro Bono, Clinical Legal Education and Service-Learning (2009), ii – viii. . 47 CALD/ALTC Report, above n 2, 119. 48 Ibid. 11 It is not the intention in this paper to replicate this Report. Suffice it to say that the research does reveal a connection between: ‘those studying (and practising) law and depression.’49 Whilst the Project Team endorses the recommendations of the Brain & Mind Research Report, it also adds two of its own recommendations with regard to the adequate preparation of law teaching staff to respond to and support students who are reporting or indicating signs of depression or mental distress, as well as balancing the competitive ethos which pervades law schools. 11. Infrastructure, Linkages and the Future - Legal Education Within Wider Higher Education and Context The titles of the final two chapters of the CALD Project Report provide a good lead into an evaluation and appropriateness of the Project and its relevance to the future development of Australian legal education. Within the former chapter: Infrastructure Linkages and the Future50 there is an identification of a workable infrastructure for current and ongoing consultation and engagement by CALD with key stakeholders in legal education. This chapter also sets out a comprehensive resume of these key stakeholders. Whilst there is an acceptance that at this stage the Project has been non-prescriptive and more concerned with the identification of a current practices in Australian legal education, it does recognize that one of the key goals of any reform must be to: ‘Commence a process for re-designing the law curriculum and approaches to the delivery of legal educations so that they will be sufficient to meet the needs of the coming generations of law students.’51 In my view one of the successful outcomes of the CALD Project has been the identification of the various practices involved in Australian legal education, but this can only be a starting point. As the Report acknowledges, there might be a need in certain instances for some of the outcomes which have been identified to become more prescriptive if this is appropriate. An example given is that of Standards for Australian Law Schools which will need to become more formalized in the future if they are going to have any lasting effect.52 Within the context of the identification of the various key stakeholders the Report examines the possible ways forward from the finalisation of its findings and concludes that this could be an expansion of the role of CALD itself, or the resourcing of a similar body such as the Centre for Legal Education or a recognition of the potential of the Australian Academy of Law. It recognizes that the Academy: ‘with its mixture of membership based upon exceptional distinction within the discipline [of law] and ex officio status from all three of the judiciary, the profession and academe….may be said to be uniquely placed not only to carry out the project work necessary to underpin discipline development in the future, but also engage in consultation across the discipline and prove authoritative weight than can coordinate and progress systemic developments within the discipline of law.’53 The final chapter: Legal Education Project Learning within Wider Higher Education Context 49 50 51 52 53 Ibid. Ibid 135. Ibid. CALD/ALTC Report n 2, 144. Ibid 145. 12 provides evidence of additional outcomes of the Project Report within the wider context of higher education and the Australian Learning and Teaching Council reporting requirements. Encouraging for everyone with a vested interest in the further development of legal education is the extent to which the Project Report has formed the basis for further work on the many topics included within the report such as Graduate Attributes and Ethics, Professionalism and Service. It has also served to break down the barriers between respective law schools stating that: ‘This has involved sharing ideas about various law schools’ directions and achievements in relation to Graduate Attributes and assessment topics, through involving law academics in workshops and regional round table to develop collaborative ideas and materials.’54 It also points the way for the future development of Australian legal education with the highlighting of factors which can lead to its success. These include: ‘The need for a clear and focussed plan and project management, including ongoing formative evaluation processes to ensure working systematically towards outcomes and deliverables.’55 - and ‘Raising awareness of innovations and building skills for individuals and across law schools, through working together and sharing materials across universities…Wider dissemination communication occurs through materials development and within conferences and other accessible publications and this has the potential to improve programs within the discipline on an Australia basis.’56 It is hoped that these outcomes and aspirations of the Project Report will form a firm basis for the increasing development of contemporary legal education in Australia. 12. Legal Education. The ever –enduring topic. Anyone having any interest or involvement in legal education whether as a law academic or as a legal practitioner will know that there is a perpetual ongoing debate with regard to the dispute between those advocates of a qualification in law giving rise to a liberal education versus the proponents of vocational legal training. In the view of Marlene Le Brun and Richard Johnstone57 this has created a problem for law teachers who are caught between the dilemma of attempting to justify the continuation of an education in law solely in terms of a liberal educational philosophy, whilst since from its infancy in common law countries, programs in law have oscillated between ‘training’ and ‘education’. It is the maintenance of this dichotomy between ‘training’ and ‘educating’, together with the varying role of legal education in an ever changing higher education system, that has given rise to a plethora of reports at both national and state level which have to be taken into account in any discussion relating to the current state of Australian legal education. These would include: The Pearce Report58, ALRC Report No.89 – Managing Justice,59 the Martin Report60 and the Bowen 54 Ibid 147. Ibid 148 56 Ibid 149 57 Marlene Le Brun and Richard Johnstone, The Quiet Revolution (Law Book Co. 1994). 58 D Pearce et al Australian law schools: A discipline assessment for the Commonwealth Tertiary Education Commission AGPS Canberra 1987 (Pearce report). 59 Australian Law Reform Commission, Managing Justice, Report No.89 (2000). 55 13 report.61 It could be argued that this debate has intensified recently with the negotiations for a National Legal Profession and its consequential effects as to the appropriate goal of legal education and how this might be affected by national economic policies and priorities. In this part of the paper it is intended to review a recent initiative to influence the development of legal education. This concerns the development of the Threshold Learning Outcomes (TLOs) for the Bachelor of Law (LLB) under the aegis of the Australian Learning and Teaching Council’s Learning and Teaching Academic Standards Project. Whilst this project will be warranting in-depth reviews both at this ALTA Conference and on other occasions, it is the intention of this paper to consider the validity of the criticisms of the project by Associate Professor Joachim Dietrich of Bond University in an article in the 30 March edition of The Australian newspaper.62 13. The Threshold Learning Outcomes (TLOs) for the Bachelor of Laws (LLB) Degree 63 The introduction of the topic of TLOs in respect of the LLB degree can seem to be a little eclectic after the excitement of a wide ranging debate over the practicalities of the teaching of law. However because of the criticisms of The Threshold Learning Outcomes exercise made by Joachim Dietrich last year in The Australian newspaper,64 I was of the view that this is yet another aspect of ongoing discussion as to the quality of law teaching which needs to be reviewed in the same context of a paper discussing the ever changing landscape of the provision of legal education. The Law and Teaching Academic Standards Project and in particular the TLOS in respect of the undergraduate law degree developed initially by the two ALTC Discipline Scholars Professor Mark Israel and Professor Sally Kift will be obviously reviewed in depth at this Conference both at the plenary and Legal Education Interest Group Sessions. I therefore intend to restrict my observations to those parts of the Project which have been the subject of criticism by Associate Professor Joachim Dietrich. The TLOs cover six aspects of expected standards to be incorporated in the LLB degree program. The intention of the project is that the TLOs will assist law schools in their implementation to enable demonstration of the learning outcomes at the requisite qualification level.65 The Threshold Learning Outcomes for the Bachelor of Laws are as set out below: TLO 1 : Knowledge. TLO 2: Ethics and professional responsibility. TLO 3: Thinking skills. Martin Report – Report on Tertiary Education in Australia of the Committee on the Future of Tertiary Education to the A.U.C. (1964). 61 Sir Nigel Bowen et al Inquiry into Legal Education in New South Wales (1979). 62 Joachim Dietrich, ‘Law threshold lowers the bar’, The Australian, 30 March 2011, 32. 63 Mark Israel and Sally Kift, ‘ Bachelor of Law Standards’ , Learning and Teaching Academic Standards Projects ( Australian Learning and Teaching Council 2010) 64 Joachim Dietrich above n 2. 65 Israel and Kift above n 52, 9. 60 14 TLO 4: Research skills. TLO 5: Communication and collaboration. TLO 6. Self-management.66 In his article Joachim Dietrich states that: …the project was always going to be self-fulfilling and self-justificatory…it became clear that most associate deans favoured an approach that the threshold standards were to be as broad and general as possible. In the view of many, that would render them meaningless. And that is exactly what has happened.67 In his criticism Joachim Dietrich focuses on: TLO 1. Knowledge, TLO 3. Thinking Skills, and TLO 5. Communication and collaboration.68 In his criticisms of these three specific TLOs, Joachim Dietrich uses such expressions as in respect of TLO 1: It is difficult to understand what this means other than that a law graduate must know some law. No attempt is made to indicate what the fundamental areas are, or what depth of knowledge and understanding must be acquired and demonstrated.69 Regarding TLO 3: This is perhaps the most meaningless of all the threshold learning outcomes. With no indicators as to the level of such skill, it adds little to the sort of very general graduate outcomes that universities like to assert.70 Relating to TLO 5: …Communication merely requires that graduates communicate in ways that are effective, appropriate and persuasive and that they collaborate effectively. Effective collaboration may well be desirable in graduates, but can one really assess or measure the effectiveness of such collaboration?71 His article culminates with the statement: The threshold learning standards are so widely drawn almost any criticism can be met with a nod to the outcomes and an assertion they are being complied with. Given the generality and banality of them, who could disagree? Obviously at some stage in the future the convenors of the LTAS Project and, in particular, the two relevant ALTC Discipline Scholars will respond to these criticisms. However it is appropriate to draw the attention of everyone who is involved with developing TLOs at the tertiary level to be aware of detailed notes which are attached to each Threshold Learning Outcomes. The accompanying statements in the Notes explains that they are: …intended to offer non-prescriptive guidance on how to interpret the TLOs.72 And that: …it is not the role of the LTAS project to tell law schools how they should go about the learning, teaching or assessment of their students.73 I consider that in the context of the criticism of the TLOs Project, the response has to be that despite all the hyperbole that seems to surround the topic: … the core of legal education, as John Bell has stated: lies in a distinct subject-matter and distinct methods of dealing with it. [That] legal education is not just the study of law, but a study which also inculcates the 66 67 68 69 70 71 72 73 Ibid 10. Joachim Dietrich above n.2.. Ibid. Ibid. Ibid. Ibid. Israel and Kift above n 52, 11. Ibid. 15 ability to make use of law, to analyse it, and to criticize it as a member of the legal community.74 If it is recognised that in the statement by Anne Trimmer, the former President of the Law Council of Australia that there has been and has to be a growing acceptance: … towards national standard setting in all aspects of regulation of the legal profession then an element of regulation is the development of uniform standards in the content of a law degree.75 Then one should further add her additional comment: By writing of uniformity I am not advocating that all programs be identical – diversity provides competitive choice for students. However, minimum competency standards will ensure that all graduating lawyers have covered similar material with a similar degree of teaching resources76. This leads the discussion on to the future influence of TLOs on the law degree. In this respect the last word may be left to Professor Jill McKeough, the Chairperson of the Council of Australian Law Deans, who stated in a letter to the Higher Education Supplement of The Australian newspaper that: The Legal Admissions Consultative Committee has recommended these TLOs as requirements admission to legal practice. Embedding and assessing the TLOs will be a challenge for some institutions producing law graduates, but will lead to a closer match between graduates of university law schools and the needs of our society and economy. The professionalism and competence of a sound and ethical lawyer with the threshold skills the TLOs enshrine add value and is an important investment in Australia’s future.77 14. Comparative Studies with Law Schools in America and in England and Wales In the modern era of legal education no common law jurisdiction for the training of lawyers can ignore what is happening within other common law jurisdictions. For Australia major influences will be those of the United States and England and Wales (for the sake of brevity to be described as England or the English legal system). In these times of modern communication it would be difficult for any legal system to ignore what is happening elsewhere or to refuse to take account of innovations in teaching or training of law students or the changing patterns or redevelopment of law schools. 15. Rethinking [American] Legal Education for the 21st Century78 This was the title adopted for one of the Association of American law Schools (AALS) Plenary Sessions at their Annual Meeting held in New York in January 2008. It related to the publication in March 2007 by the Carnegie Foundation for the Advancement of Teaching which recommended ‘the better integration of analytical thinking and formal theory with more practical knowledge and greater emphasis on the values underlying the formation of 74 75 76 77 78 John Bell above n 32, 905. Anne Trimmer, ‘The Legal Profession In 2010-Issues For Legal Education’ (2001) 2 UTS Law Review 3. Ibid. Jill McKeough, Letter to the Editor, The Australian – Higher Education (Sydney), 6 April 2011, 33. Association of American Law Schools Annual Meeting Program (2008) 57. 16 professional identity.’79 In comparing the ongoing state of law schools in the United States with Australian law schools, it is interesting to note that the American law schools have an accepted procedure conducted in accordance with the American Bar Association (ABA) Standards for approval/accreditation of law schools. There is an additional process for law schools also seeking membership of the AALS. It would appear that whilst the current underlying problem for Australian law schools is the question of recognition and the imposing of standards, the contrary appears to be the problem facing law schools in the USA. Whilst North America has a well established and accepted structure for the recognition of law schools and the maintenance of standards, the problem for their law schools and the legal profession is the development and acceptance of generally accepted programs in practical legal skills. 16. The Carnegie Foundation for the Advancement of Teaching – the Carnegie Report80 During the sessions conducted at the 2008 AALS Conference on legal education there was, to quote the introduction to one of the sessions – ‘a growing sense among legal educators that it is time to re-think legal education. Dissatisfaction with the Langellian model, now over a century old, has combined with enthusiasm about new approaches to both content and pedagogy to produce a potential turning point in the way we educate our students.’81 Educating Lawyers [The Carnegie Report] is the outcome of a wide ranging research project carried out in North America, both the United States and Canada where a research team spent two semesters (one year) observing the activities of 16 law schools. These law schools were chosen for their diversity or geographic location. Some were selective, one focused on black students, two enrolled Native Americans/first Nation peoples, whilst others were selected because they represented particular strengths in legal education. The research recognised that if there was to be revitalization of the legal profession then this would emanate from the law schools which were the only single experience shared by all legal professionals. Because of the obvious prescription relating to the length of a conference paper of this nature it is intended to focus on the Summary of the Report. Incorporated within the Summary is an Introduction; Overview of Legal Education; five Key Observations; Seven Recommendations; Examples from the Field and The Rewards of Innovation. Both the Introduction and the Overview recognize the strengths of American law schools but question whether these are reflected in the legal profession. The summary states that: ‘Today, however, critics of the legal profession, both from within and without, have pointed to a great profession suffering from varying degrees of confusion and demoralization. A reawakening of professional elan must include revitalizing legal preparation.’82 This questioning of any co-operation between the legal academy and the legal profession is 79 Ibid 57. William Sullivan et al Educating Lawyers – Preparation for the Profession of Law (2007) (‘the Carnegie Report on Educating Lawyers’) 81 Ibid 4. 82 William Sullivan et al Educating Lawyers: Preparation for the Profession of Law. Summary (2007) 3. 80 17 continued into the Overview which states that the challenge with which legal education is faced is the ‘Linking the interests of legal educators with the needs of legal practitioners and with the public the profession is pledge to serve.’83 These opening pages are preoccupied with the legacy of the Socratic case book method originally established at Harvard by both Christopher Columbus Langdell and Charles William Eliot. In the view of the Carnegie Report editors, whatever the merits of the case book method it should be replaced in the final half of the Law Degree Program with a strong skills based course linked to a solid ethical grounding. The Five Key Observations are a snapshot of the research team’s view of current North American legal education. These are as set out below: Observation 1: Law School Provides Rapid Socialization into the Standard of Legal Thinking. Observation 2: Law Schools Rely Heavily on One Way of Teaching to Accomplish the Socialization Process. Observation 3: The Case-Dialogue Method of Teaching Has Valuable Strengths but Also Unintended Consequences.84 These first three observations are used to express the views in the Report that there are two major limitations of legal education as currently practised in the United States. These are that: ‘Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.’ And: 2. ‘Law schools fail to complement the focus on skill in legal analyses with effective support for developing ethical and social skills.’85 Observation 4: Assessment of Student Learning remains Underdeveloped. This observation is concerned with law schools using assessment in its summative form in sorting and selecting students ensuring basic forms of competence but not in its formative concept. In the view of the research Team: ‘Although contemporary learning theory suggests that educational effort is significantly enhanced by the use of formative assessment, law schools make little use of it. Formative assessments directed toward improved learning ought to be a primary form of assessment in legal education.86 Observation 5 Legal Education Approaches Improvement Incrementally, Not Comprehensively. This final observation laments the lack of a comprehensive effort to improve legal education programs. This has meant that practical legal skills have occupied a relatively subordinate place in the curriculum of most law schools with ‘lawyering’ and professionalism being treated as an additive and not an integrative way by those responsible for enhancing law school programs.87 17. The Carnegie Report – Toward a More Integrative Model: A Historic Opportunity to Advance Legal Education. 83 Ibid 4 Ibid 5. 85 Ibid 6. 86 Ibid 7. 87 Ibid . 84 18 The Report acknowledges that law schools can only provide for the beginning and not for the full development of a students’ professional legal career. However it is the view of the Report that currently law schools are failing to provide a dynamic curriculum that will ‘bridge the gap between analytical and practical knowledge.’88 In a telling paragraph the Report encapsulates the outcomes of its research by stating that: ‘Legal education needs to be responsive to both the needs of our time and recent knowledge about how learning takes place; it needs to combine the elements of legal professional responsibility. Legal education should seek to unite the two sides of legal knowledge: formal knowledge and experience of practice.’89 To achieve these objectives the report makes seven Recommendations: Recommendation 1 Offer an Integrated Curriculum. Recommendation 2 Join “Lawyering,” Professionalism and Legal Analysis from the Start. Recommendation 3 Make Better use of the Second and Third Years of Law School. Recommendation 4 Support Faculty to Work Across the Curriculum. Recommendation 5 Design the Program so that Students – and Faculty – Weave Together Disparate Kinds of Knowledge and Skill. Recommendation 6 Recognize a Common Purpose. Recommendation 7 Work together, Within and across Institutions. In making these Recommendations the Report recognises that there are now some American law schools which are already addressing these commendations and cites the examples of both New York University and City University of New York who have developed a close interrelationship between doctrinal and lawyering courses. 18. The Carnegie Report – The Rewards of Innovation The Report ends with the expectation that: ‘greater coherence and integration in the law school experience is not only a worthy project for the benefit of students; it can also incite faculty creativity and cohesion.’90 To the outside observer it is obvious that such reforms as recommended are not a simple or effortless process, but such a Report as this does focus the mind and encourages legal educators to develop innovative improvements in teaching and learning. As the Report concludes: ‘The calling of legal educators is a high one – to prepare future professionals with enough understanding, skill and judgment to support the vast and complicated system of the law needed to sustain the United States as a free society worth of its citizens’ loyalty.’91 19. The Carnegie Report – Outcomes 88 Ibid 8. Ibid 90 Ibid 11. 91 Ibid. 89 19 As would be expected, a document such as the Carnegie Report has attracted a great deal of discussion and speculation. Some critics, such as James R. Mexeiner in an Essay entitled: Educating Lawyers Now and Then92 comparing the 2007 with a previous Carnegie Foundation Report in 1914 (The Redlich Report) is of the view that: ‘whilst they are similar in their analysis of American legal education the 2007 Report is relatively modest in its recommendations as compared to the earlier Report. The Redlich Report attempted to invigorate the principle of social justice in the life of the American people.’93 As is the case with modern forms of criticism there are numerous blogs posted which are highly crucial. In www.elsblog.org – Bringing Methods to Our Madness – there is concern that the Report does not deal with the question of major systemic change to the American legal system viz: ‘Rather major systemic change requires, at a minimum: 1. A careful assessment of the institutional incentives that have created and perpetuates the current system 2. Creative strategies for breaking down or subverting those institutional corces in a way that produces a greater good. Unfortunately, the Carnegie Report touches on #1 only briefly; and #2 is entirely absent. I am hoping that the Carnegie Center working group, which is being formed to help execute the study, can address these issues. To that end, I am writing this post. [Disclosure: via my law school, I am a member of the working group]’94 In the Northeastern Law Magazine the Dean, Professor Emily A. Spieler welcomes the Report stating that: ‘Teaching legal doctrine is not enough: teaching skills and values to burgeoning lawyers is critical to training great practitioners – central to the future health of the profession and the legal system’95 20. The English Experience It was in 2005 at the Commonwealth Law Conference that I last gave a paper which involved a comparison of legal education in Australia and England and Wales (for the sake of brevity the descriptive words ‘English’ and ‘England’ are deemed to include ‘Welsh’ and ‘Wales’ although there will still be instances when legal developments in the Principality have to be distinguished from those in England). At that time it was still acceptable to quote the Ormrod Review of 1971 and the Benson Report on Legal Services of 1979. In 1988 the Marre Committee had criticised legal education for not providing an adequate knowledge of the ‘core subjects’, for failing to give students the basic skill of being able to present written arguments, to conduct research, and present oral arguments, and for not placing law in its social, commercial and European contexts.’96 It was during this period that the Lord Chancellor’s Advisory Committee on Legal Education 92 James R. Educating Lawyers Now and Then (2007). Bringing Methods to Our Madness (2007) http://www.elsblog.org (2007). 94 Ibid. 95 Emily A Speiler, ‘Deans Message’ (2007) (Summer Edition) Northeastern Law Magazine. 96 Andrew Halpin and Philip Palmers, Acquiring Values, New law Journal Vol 146 No. 6760 (1988) 1357-58. 93 20 and Conduct (ACLEC) was established in April 1991 under the Courts and Legal Services Act 1990. Its review of legal education commenced in 1992 with the First Report on Legal Education and Training, being published in April 1996, followed in 1997, by a Second Report, Continuing professional development for solicitors and barristers. These were followed by a number of further reports until the Committee was disbanded in 1999 and was replaced by the Legal Services Board. It is only the intention within the context of this paper to comment on recent reviews and reports which could have an effect on the future of English legal education. A starting point to such an account would have to be the reforms brought about by the Legal Services Act 2007 which was described by Professor Leighton as; ‘The most radical piece of legislation for a very long time in terms of both the structure and the role of the existing legal profession and for legal education.’97 In the view of Patricia Leighton this legislation also gave rise to the setting up of the ‘The Legal Education and Training Review (LETR), 2011-2012 , previously described as ‘The Review 2020’, an initiative of the Solicitors Regulation Authority (SRA); the Bar Standards Board (BSB) and the Institute of Legal Executives Professional Standards (IPS).98 The brief for the Review was to: ‘Report on the main challenges and changes that will influence the shape of the future legal services sector and determine the legal services education and training system (s) necessary to underpin that structure.’99 The cautionary note mentioned in the article by Patricia Leighton as to the lack of effect of previous reviews, other than the Ormrod Review, involving legal education in England should be heeded, particularly as a recent internet report - 17 October 2011 - stated that: ‘Speaking at a debate on legal education London last week, former Appeal Court Judge Sir Mark Potter, who with Dame Janet Gaymer chairs the LETR’S consultation steering panel, said his panel had met just once so far in a purely introductory exercise and would meet again next month. On the LETRS’s likely finish date, Sir Mark hinted that it could slip into 2013. He was still hopeful it could meet the end-of-2012 deadline, but warned: That may be somewhat ambitious.’100 A complementary paper drafted by Professor John Flood for the Legal Services Board – ‘Legal Education in the Global Context – Challenges from Globalization, Technology and Changes in Government Regulation’ examines English legal education in the context that: ‘English lawyers have traditionally enjoyed high standing in the world but the question arises will changes introduced by the Legal Service Act 2007 and potential changes arising from the SRA-BSB-Ilex review of legal education damage that reputation? ‘101 It is also relevant to comment upon the Final Report and Recommendations of: ‘The Nuffield Inquiry on Empirical Legal Research – Law in the Real World: Improving Our Understanding of How Law Works.’102 In its conclusions the Report states that in addition to: 97 Patricia Leighton, The Legal Education and Training Review (LETR), 2011-2012, The Law Teacher Vol 45 No. 3, (2011) 361. 98 Ibid. 99 http://www.legal futures.co.uk/regulation/legal-executives/education. 100 Ibid. 101 John Flood, Legal Education in the Global Context – Challenges from Globalization, Technology and Changes in Government Regulation, University of Westminster (2011). 102 Hazel Genn, Martin Partington and Salle Wheeler (eds) Law in the Real World: Improving Our Understanding of How Law Work s, The Nuffield Inquiry on Empirical Legal Research (2006). 21 ‘The absence of sustained and predictable funding stream for empirical work in non-criminal law,’ there is a need for: ‘Creating change in a few centres of excellence to achieve the critical mass of researchers that we feel is need if the empirical legal research community is to become self-sustaining.’103 There is of course still the need to take account of the Browne Review of Higher Education Funding.104 The Review recommended that the cap of £3,290 tuition fees a year charged by universities should be removed, that the point at which tuition fees loans should be paid back be raised from £15,000 a year to £21,000 a year, that the repayment loans scheme provide that loans be paid back at 9% with respect to any income earned over £21,000 and that parttime students should have an equal entitlement to tuition under the Student Finance Plan. These recommendations were mainly accepted by the Government except that they rejected the proposal to completely remove the tuition fees cap but raised it to £9,000 whilst adjusting the rate of interest in respect of the paying back of the interest on student loans. In the view of Andrew Francis who has expressed the opinion that: ‘Part-time law students are more broadly marginalized in their experience of legal education,’105 this proposal ‘to move towards greater equalization of the fee regime of part-time and full-time students, is to be welcomed.’106 21. A Comparative View /Is there a Conclusion? There is a view, often expressed by legal academics, that all the criticisms and expressed dissatisfaction with the legal profession and its low standing within the community are often referred back to perceived inefficiencies in legal education and consequently reflect poorly on the status of academic lawyers. Whilst this might have been true of legal education in most common law countries in the period prior to the Second World War, as William Twining, a highly regarded English law academic has stated that in respect of legal education in England and Wales: ‘the contrast with developments after the Second World War could hardly be greater. In business terms, legal education as an industry has diversified and in 1994 was at least 25-30 times as productive as it was in 1945.’107 The modern experience of legal education as expressed in this paper reflects the concern of the legal community, whether in Australia, the United States or in England and Wales, as to how legal education will respond to the continuing on-going challenges. Andrew Francis has described these challenges as: ‘core legal knowledge, forming the foundation of a collective project of legal professionalism, in an age of multi-disciplinary and cross-jurisdictional practice.’108 There is also the influence of globalisation and the interconnectedness of law teaching across the common law jurisdictions particularly as reflected in those selected within this paper. It is the hope of this presenter that this examination of recent and current research 103 Ibid 39. Browne, J, An Independent Review of Higher Education Funding and Student Finance, (2010). 105 Andrew Francis, At the Edge of the Law, Ashgate (2011) 43. 106 Ibid. 107 W. Twining, Blackstones’s Tower: the English Law School (Sweet & Maxwell, 1994) 25-26. 108 Francis, above n 105, 1 104 22 projects, reviews and reforms will have stimulated the interest of the participants at this conference. 23 24 25