Anticipating the Carnegie Report? The Griffith Law School Curriculum

1. Anticipating the Carnegie Report?The Griffith Law School Curriculum Richard Johnstone Socio-Legal Research Centre, Griffith Law School, Queensland, Australia SLRC and Griffith Law School

2. Overview of Australian legal education • Three “relatively discrete stages” (Weisbrot, 1990: 124-5) (1) academic training (usually undergraduate combined degree programs); (2) subsequent practical training (3) continuing education • Core course content closely controlled by the professional admission authorities : 11 compulsory ‘areas of knowledge’ • The ‘signature pedagogy’ has been the ‘lecture method’ plus final examination; but many teachers adopt a variety of methods and assessment tasks

3. Carnegie Report relevant because • Assumed that the subject matter of legal education was legal rules • Law considered to be an autonomous, quasi-scientific discipline • Aim of teaching was to impart the content of legal rules, with little attention to the teaching of legal ethics, legal theory, or generic or legal skills (apart from case reading and analysis, problem solving, legal research and writing, statutory interpretation, and mooting). • Students given little opportunity to construct their own meaning through activity and dialogue in a realistic context • Most students were assessed by end-of-year examinations • Law teachers work in isolation; little evidence of comprehensive curriculum design.

4. Significant changes since the late 1980s • Pearce Report 1987: Law schools • “should examine the adequacy of their attention to theoretical and critical perspectives, including the study of law in operation and the study of relations between law and other social forces” • should give greater attention to the means of providing more small group teaching • were encouraged to develop a culture of continuous self-improvement in which they examined their aims, their performance and looked to how they might improve themselves.

5. McInnes and Marginson 1994 follow-up assessment of the impact of the Pearce Report • all law schools surveyed had “embraced aspects of theory, reflection and the law in action” • consistent with an increased focus on skills acquisition across universities, law schools were paying more attention to skills teaching. • it generated critical reflection on the nature and content of courses and a commitment to skill development and quality teaching

6. Australian Law Reform Commission 1999 & 2000 • contemporary legal practice more internationalised, process-driven and teamwork reliant • legal education should now increasingly focus on what lawyers need ‘to be able to do’, rather than on what lawyers ‘need to know’ • professional skills training should not be a narrow technical or vocational exercise … [but] fully informed by theory, devoted to the refinement of the high order intellectual skills of students, and calculated to inculcate a sense of ethical propriety, and professional and social responsibility. • legal education should involve the development of high level professional skills and a deep appreciation of ethical standards and professional responsibility”

7. AUTC Stocktake Report 2001-2003: • A significant trend towards teaching generic and legal skills • A third take a ‘low-key’ approach, with no ‘stand alone’ skills subjects. Most focus on the fundamental skills, and many include more specific legal skills such as ADR and negotiation. • Some have an integrated skills program, with substantial clinical teaching programs and/or placements. Two schools were developing incremental, integrated and co-ordinated skills programs. • A few law schools have incorporated fully-fledged professional legal training programs within LLB programs

8. In almost all law schools legal ethics is now a compulsory stand alone subject in the law program. Some schools ensure that ethics is revisited frequently in the curriculum (ie a ‘pervasive’ approach). • Most law schools now give greater weight to legal theory (eg at least one compulsory legal theory subject; and some require/encourage, staff to incorporate theoretical perspectives into both core and elective subjects.)

9. Developments in teaching and learning • Some law teachers are conceptualising teaching as a non-hierarchical activity aimed at facilitating active student learning • Evidence of clearer learning objectives, alignment of learning objectives with assessment tasks, more varied assessment and teaching methods, more feedback, and increased use of teaching materials and methods to encourage active learning. • Many law schools also express a greater commitment to reducing class sizes; but many frustrated by inadequate resources. • Some attention to teaching support and development • But curriculum development generally lacks systematic co-ordination - individualism has triumphed over integration and co-ordination.

10. The Griffith Law Curriculum • Griffith curriculum review report 2004 drew from the ‘best practice’ curriculum developments identified in the ‘Stocktake’ report • Grappled with the issues articulated by the Carnegie Report; reinforced a commitment to teaching legal theory, and to Indigenous legal issues and internationalisation • an Australian example of a comprehensive and integrated approach to revising a curriculum, drawing on ideas of ‘institutional intentionality’ to enable ‘an integration of student learning of theoretical and practical legal knowledge and professional identity,’ but including legal theory, teamwork, internationalisation and Indigenous legal issues.

11. Begin with the end in mind: The Griffith Graduate • Envisaged the Griffith law graduate as both an ethical problem solver using the institutions of law, and as a critical observer of the legal system capable of addressing questions of social and legal justice. • This ethos is articulated through a number of generic and discipline-specific capabilities.

12. A Griffith Law Graduate should have • Legal knowledge: (i) a broad & systematic understanding of the main doctrinal principles in core areas of law • Legal theory & interdisciplinarity: (ii) have developed a generic expertise in critical analysis & evaluation from legal & interdisciplinary perspectives; (iii) be able to write and research about law from perspective of at least one other discipline; (iv) be committed to & able to use law as a tool for social justice

13. Group work: (v) be able to work effectively & co-operatively as a member of a co-operative group, including in leadership roles • Legal Ethics: (vi) possess personal and professional integrity & a well developed capacity to exercise critical judgment

14. Generic and legal skills: (vii) have developed self-reliance & the ability to undertake independent lifelong learning, assume responsibility and make decisions (viii) Be a client-focused, reflective practitioner, competent in fundamental legal skills, including oral & written communication; (ix) when faced with legal problems, be able to identify the central issues; use effective research strategies using current technologies to retrieve material; analyse, evaluate and apply relevant principles to address identified issues; and develop solutions to these issues and strategies to implement them; (x) be able to take creative & innovative approaches to legal analysis & to resolving a broad range of legal problems

15. Internationalisation: (xi) Be a globally mobile graduate with a multi-jural mind, understand what it takes to be a global citizen, and have skills in cross-cultural communication • Indigenous issues: (xii) Understand the interface between the white Australian legal system and Indigenous legal systems, be aware of historically privileged nature of white institutions & the impact of white law on Indigenous people

16. Diversity: (xiii) be able to relate to, empathise and deal with a wide range of clients and co-workers; (xiv) be sensitive to gender, ethnic, cultural and religious differences, aware of the role of stereotypes and how they structure thought, and not hold stereotypical views of others; (xv) understand the importance of being actively engaged in the community, and understand how to become actively involved in community work

17. Incremental development ofgraduate attributes through ‘vertical subjects’ • key attributes developed and embedded throughout the degree, not confined to ‘one off’ courses - Vertical subjects in (a) legal theory and interdisciplinarity; (b) group work, (c) ethics (professional responsibility rules; ethical decision-making); (d) generic and legal skills (including interviewing & advising, negotiation, drafting, advocacy, time & workplace management, diplomacy) (e) internationalisations; and (f) Indigenous issues

18. In each vertical subject students should be required: 1. in the early years of the undergraduate program to engage with the basic principles governing its subject matter and skills, 2. in later years to engage with more advanced principles and skills, and the relationship between these principles and skills and other principles and skills; 3. at all stages of the program to use and practice the principles; and 4. at all stages to undertake assessment tasks in relation to the skill and/or subject matter

19. Assessment of vertical subjects • Recognised that assessment defines the de facto curriculum • Assess student performance in each of stage of the vertical subject • Each subject team to select assessment activities to determine students’ progress towards the specified learning objectives for the vertical subject, and which are integrated into the substantive law course ie some assessment tasks will be used twice – in relation to the substantive course and in relation to the vertical subject

20. Key principles in design of assessment tasks • Assessment activities should be an intrinsic part of ongoing learning, rather than something done at the end of teaching • Instructions for each assessment activity must clearly express assessment criteria; and appropriate feedback should be provided • Need to broaden the range of assessment methods • Design assessment tasks which can simultaneously assess understanding and the application of substantive material and assessing competence in generic and legal skills and the development of attitudes – ‘smart’ assessment • Don’t over-assess: in general no more than two summative assessment activities in each course.

21. Example: Group Work Vertical Subject • Level 1 of subject placed in a first year course (with oral advocacy and related legal drafting of outlines of argument ), for which learning objectives include: By the end of this course, students should • Understand the benefits of group work and how groups function; • Understand how effective groups work; • Be able to work with other students to complete specific and limited tasks; • Be able to work with one student over several weeks in resolving a complex legal problem, interpreting and applying assessment criteria, and jointly preparing a written outline of argument; • Have completed a written reflection on the effectiveness of their group work and discussed that reflection with their partner.

22. Stage 2 (2nd year course) • Introduced to (a) literature dealing with the impact of learning, communication, participation and work styles on effective group work in large and small groups; and (b) the ideas of feedback and process gain, which are applied in small group work in the context of legal problem solving and drafting. • These activities culminate in an assessable moot. • Students work in groups of two in preparation for the moot; in one week, they would work together with another group to give constructive feedback. • This moot tests skills in problem solving, team work, oral advocacy and legal drafting, assessed at an intermediate level.

23. Learning objectives for the course include: At the end of this course student should: • be able to identify group objectives by reference to a set activity, determine a process for monitoring achievement of those objectives, and reflect on the extent to which those objectives were achieved; • be able to explain the purposes of giving and receiving feedback, • be able to give detailed written and oral feedback on a draft outline of argument by reference to stated assessment criteria; • be able to work with another student to produce an outline of argument which addresses the criteria and responds to the feedback given by another group;

24. 5. be able to work with another student in preparing a team oral presentation which is internally coherent, 6. be able to give oral and written feedback to another student on their oral presentation, and be able to apply feedback given by another student to improve one’s oral presentation; 7. have reflected on the effectiveness of their group work and discussed that reflection with their partner.

25. Stage 3 (3rd year course) • Students are introduced to literature on leadership of groups, resolving conflict, and group work models in large and small groups, and apply this in small groups. • Students work with one other student to complete a moot. The moot assesses students’ skills in problem solving, team work, oral advocacy and legal drafting, at a highly advanced level (i.e. the level appropriate for a first year practitioner). This moot concentrates on a high level of professional veracity; legal practitioners compose the majority of judges on the bench.

26. Learning objectives for the course include: at the end of this course student should: • understand different models of group work; • understand the characteristics of effective leadership and the role of leadership in effective group work; • understand the role of conflict in groups, and be familiar with effective strategies for constructively resolving conflict; • be able to determine an appropriate model of group work for a particular task, and show leadership in applying that model to complete a particular task; • be able to anticipate when and how conflict may arise in a group, and be able to to resolve conflict if it arises;

27. 6. be able to work with another student to jointly prepare a written outline of argument to a standard which would be acceptable in litigation in the Supreme Court; 7. be able to work with another student to jointly agree a model of group work which is appropriate to complete the voir dire moot; and 8. have reflected with another student on the effectiveness of that model of group work.

28. Conclusion • Aimed to be resource neutral (measured in teaching hours) • Example of comprehensive and integrated approach • Relying heavily on collegiality: leadership and implementation (especially negotiation, resourcing and evaluation) crucial • Maximise opportunities for social constructivist approach to learning - 3 key elements: practice in real settings (experience), the opportunity to develop personal interpretations of experiences (construction of meaning by the learner), and the opportunity to negotiate meaning (collaboration)(M H Schwartz, “Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching” (2001) 38 San Diego Law Review 347, 380)