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