And now for something completely different: Statutory interpretation

And now for something completely different*

I started my LLM thesis when I was still in private practice. My thesis was designed to tackle a very practical black-letter law problem I had encountered in my practice as a property lawyer. In analysing the issues however, I branched out way beyond my comfort zone into some theoretical areas - law and economics, feminist legal theory and critical legal studies. Before developing my thesis proposal I had not even known that such things existed. This was a product of my largely doctrinal undergraduate experience and my immersion in commercial law practice.

During this time however I read Nick James' 'Brief History of Critique in Legal Education' - before I knew that legal education was even a thing. Now that I know a little more about legal education, Nick's paper continues to inform my thinking. It is a useful reminder to me that despite the monolithic appearance of the law and the appearance of solidity of the term 'the profession', that they are subject to change. As Nick's paper makes clear also, Australian legal education has been characterised by shifts between the practical and the academic, culminating in the ascendancy of the professional legal academic.

The degree remains subject to judicial oversight through the Law Admissions Consultative Committee ('LACC'). Its structure, moreover, must conform with the so-called Priestley 11, the 11 core subjects considered to represent the cohesive body of discipline knowledge requisite for legal practice.

Since the Priestleys were mandated in 1992 there have been a number of seismic shifts that have generated debate about their utility and relevance. There are greater numbers of law students not going on to practice; increasing globalisation of legal practice; increasing specialisation of practitioners; and growing emphasis on legal skills and soft skills rather than doctrinal content alone. LACC is presently considering whether to do a small adjustment to the Priestleys, but the question I'm interested in pursuing here is possibility of a Priestley 12 - the inclusion of statutory interpretation.

Changing Academic Requirements for Lawyers - Yes Please!

 

Better get a lawyer, son.

The Law Admissions Consultative Committee ('LACC') has called for submissions in its review of the academic requirements for admission to legal profession in Australia ('Review'). The Review is the latest in a series of discussions and mini-reviews over the past decade or so about Australian admission requirements. This has occurred largely against the background of calls by the judiciary for more emphasis on statutory interpretation in Australian law schools. The sequence of events: reports, submissions, recommendations etc as to statutory interpretation is canvassed in the Review.

At the same time, the Australian Productivity Commission has handed down a report into access to justice ('Report'). Chapter seven of the Report covers legal education and makes recommendations including that the Priestley 11 be reviewed (recommendation 7.1). The Priestley 11 are the core academic requirements for admission to practice in Australia, and must be taught by a law school to become an accredited degree.

The Report and the Review are interesting to read together. While obviously they are addressing different purposes, they contain inconsistencies that perhaps lay bare the conflicted status of the law degree. I might observe that Margaret Thornton has been exposing this for some decades now.

In this post I will focus on the LACC Review. In particular I respond to some of the questions it poses about the academic requirements. As a starting point though, I will outline the conflicts inherent in the very notion of legal education.

Steps to generate (digitally enhanced) change in legal education

Information exchange the old way*

My last two posts have featured a developing argument in favour of designing legal education within a 'digital context'. Initially I argued that the degree requires a shift from the silos of disciplinary categories to a more contextual approach to teaching and learning law. I then suggested that the imperatives of contemporary (and future) digital technologies and their integration into the fabric of our lives demanded a re-imagining of law and legal education within a digital context. Others have articulated this in different ways. See for example Paul Maharg; the IT Countrey Justice; Kris Greaves; and Richard Grant and Marc Lauritsen in the US context.

So far these are justifications for changing what we do but without much direction in how we might go about it. I'm cognisant of the reality for many academics that a lot of change is just hard work. However I believe that it is our job, our responsibility to keep abreast of change, to evaluate, to experiment and to lead. In this post I suggest a few steps that each of us can surely take to kick off a more wide-ranging change within the discipline.

Legal education in a digital context

Technology of the past? Or for the future?*

In my last post, I reflected on the future of legal education. I focussed on the importance of learning law in broader contexts and one of those contexts I called digital literacy. It was this idea that attracted the most attention on Twitter, and one that I am starting to work with in our own curriculum.

While I am not an expert in digital technologies, I am interested in thinking progressively about the law and justice, and consequently about legal education. Others are expert in digital pedagogies, e-publishing, legal informatics, information visualisation, altmetrics, coding, e-discovery, intellectual property, e-commerce, e-research and the future of legal practice. I seek to draw together these spheres of thought to develop a coherent discipline-specific and overarching rationale for digital literacies to inform the law curriculum.

In this post I will develop the idea of digital literacy in the law curriculum. I will explain what I think it might mean as a broader context for the study of law: as a lens through which to develop knowledge, skills and attributes central to the discipline.

The future of legal education

Are lawyers prepared for the future?*

At the 2014 Australasian Law Teachers' Association conference, I will be participating in a plenary panel discussing 'Creating a Better Future for Legal Education'. In this post I outline some of my thoughts on this topic, in the hope that readers might share their own views and challenge my own.

My focus here will be on where I would like legal education to go in the next 10 years, and what changes legal academics need to make now to achieve that vision. In short, in my view legal education must challenge the existing silos of doctrinal specialisation and embrace the broader context of the law. This aligns with calls to break down barriers between university disciplines themselves, to deal with the 'big problems'.

Educating the legal profession about gender

'The woman lawyer will bring justice to her profession'*

The recently released NARS Report is the latest in a long list of studies of the pervasive sexism in the legal profession. It makes a number of excellent and practical recommendations to facilitate women's engagement in legal practice and consequently their retention and advancement.

There are various arguments for the retention and advancement of women practitioners - from gender equality, to sustainability of the profession, to the administration of justice. Despite this, and the decades of recommendations on equality, the legal profession remains as sexist as ever.

This period of mounting awareness of sexism as a problem has coincided with what Thornton regards as a prevalence of the corporatized law school. This has accompanied the scaling back of the critical project as a feature of legal education, including gender perspectives in law. At the same time in higher education more broadly, women's studies as a discipline have been wound back.

In light of what seems to be an urgent issue for the profession, is it now time for legal education to integrate gender into the curriculum?

Learning Land Law - and More

The mountains surrounding Cairns

Most legal practitioners when hearing 'land law' mentioned will roll their eyes.  Renowned as one of the most boring and archaic of the sub-disciplines taught in the law degree, they will recount their nightmares about the rule against perpetuities, future interests, and the doctrine of tenure.

But what if land law were taught differently?  What if land law, rather than representing an archaic and irrelevant list of rules were viewed through a different prism?

I confess to having practised in land law (property and commercial law and some native title) for some 16 years, and to having taught it since 2004.  But in all those years of experience, it is clear to me that this subject remains central to our understanding of the common law.  The subject lies at the intersection of law and sustainability - sustainability of governance, of society and culture, of the economy and of the environment.

Thinking Like a Lawyer – the Good the Bad and the Ugly

First year law students are invariably regaled with the mantra of learning to think like a lawyer: that law school is all about developing this skill.  As some have identified, 'thinking like a lawyer' is a nebulous concept at best, or at worst, a 'self-aggrandising sham...to justify the existence of a...special lawyer class'. 

There is however a mounting body of evidence to show that the culture of the law, including the way that lawyers think, is linked to stress experienced by law students and legal practitioners alike. (For example, see here and here.) 

While this creates issues for the sustainability of the legal profession as it sees an exodus of early- and mid-career practitioners, and women in particular, I believe it also takes a toll on the personal lives and relationships of lawyers.

Don't Throw the Baby out with the Bathwater: Work Placements for Student Learning

It was reported this week that the Fair Work Ombudsman was to launch an inquiry into unpaid internships to determine the place of such arrangements within employment law.  Certainly the reported stories told by students who have been exploited are indicative of a need to shore up the framework within which such work occurs.

In a passionate blog post, boeufblogginon wrote about the imperative to stop the exploitation in this field.  She pointed to the compulsory nature of such work experience for university qualification, and that:

For universities it has become a way of saving money. By including internships as a core “subject”, the university doesn’t have to pay for face to face teaching, but the internship will still generate income from these student hours for the tertiary institution concerned.

I have no quarrel with the importance of ensuring that students are not exploited, and ensuring that such internships take place in a way so as to protect students.  I do not dispute that many have experienced the kinds of dreadful conditions reported in the media, and by boeufblogginon. 

What I seek to do in this post is to highlight the genuine opportunities for work integrated learning that exist for students in universities around Australia.  In investigating abuses of the system, in my view it is important not to throw the baby out with the bathwater so to speak, and to ensure that we can continue to provide the opportunity for students to have supervised (and safe) learning opportunities in the workplace.

What is Work Integrated Learning ('WIL')?
I've used the definition of WIL from the Innovative Research Universities brochure.  (My own university is a member of this group.)

WIL stands for work integrated learning, an umbrella term used to describe a range of approaches that integrate theory with the practice of work within a purposefully designed curriculum. The most common form of WIL involves a student placement or project within a workplace. Universities, students and employers work together to design and create a learning experience that benefits all parties.  The student’s progress and learning outcomes are monitored and assessed by the university, with input from the employer.

Crucially in this definition are the terms 'purposefully designed curriculum' and the 'benefit (to) all parties'.  While the implication in boeufblogginon's post is that there is no educational input from the university, a WIL subject that incorporates work placement requires intensive educational input and is a deliberately designed and assessed program.  While in such programs there is no payment to the student, the credit points attaching to the subject will (in my experience) reflect the expected number of hours per week spent on that subject.  This would include time spent in the workplace as well as assessment tasks.  The placements are therefore not 9-5 daily.

Additionally, it is my understanding that for a subject to satisfy the HECS requirements, it must be educational and therefore supervised.  The university cannot claim as a subject an activity that has no educational validity and no university input or supervision.  That is not to say that there are institutions that fail this requirement.  However part of an inquiry into internships may need to canvass the ways in which universities are accountable for the educational design of such placements.

Is WIL exploitation?
It is possible to see WIL as a form of cheap (free) labour or exploitation in terms of financial reward, or as boeufblogginon pointed out, in terms of some kind of barter.  On the other hand, if it is seen as an educational opportunity (ie to advance student learning) then the perspective shifts.

In terms of the personal experiences of students that have been reported in the media, and as cited by boeufblogginon, there appears to be little if any educational component and these would naturally tend to support a claim of exploitation.  The power imbalance alone is sufficient to warrant such a claim. 

All I seek to do here is to differentiate a genuine educational opportunity (WIL) from these other experiences.

How is it educational?
There are a number of different types of WIL.  Examples are provided on the IRU website.  The one kind of WIL that I have observed (though not supervised) is a law work placement subject.  The coordinator identifies work places and gauges interest.  They provide a comprehensive information package to the employer about expectations and how the program works, and interviews each supervisor.

Students enrolled are first required to reflect upon what they would like to learn from their placement based on what they don't really know about the law or about practice.  Students formally apply to the workplace and are interviewed.  Students negotiate their own outcomes with the employer, and these are discussed with the coordinator.  The outcomes in the workplace will align with what the student seeks to learn.  The student is required to reflect periodically on their placement, identifying what they are learning as they go, interacting with fellow students and the coordinator.  They receive feedback from the coordinator along the way.  Reflection is identified as a key generic skill in the contemporary university graduate.

At the end of the placement, the students present a portfolio representing their learning and experience in the context of their work (naturally not breaching confidentiality).  The employer also provides a report confirming compliance with the placement requirements (though this is not assessed).

Feedback from students is overwhelmingly positive.  Likewise, my colleagues in the profession who have supervised students are keen to continue.  While not all students secure paid employment from the experience, some have.

Appropriate boundaries
Subjects such as the one I have described, or other WIL programs elsewhere, should be open to scrutiny.  Because they are part of an educational qualification, such programs must be educational and be designed to promote student learning within the discipline. 

There is no room for the kinds of exploitative internships quoted in the media, and particularly not in the context of higher education.  However in ensuring proper protection for students undertaking internships, thought needs to be given also to legitimate workplace participation for student learning.  Hopefully the inquiry will clarify for educators, students and employers just how we can appropriately provide such opportunities.

Professionalism and Sustainability in Lawyering

I have not long returned from the beautiful city of Vancouver in Canada, having attended the eighth International Conference on Environmental, Cultural, Economic and Social Sustainability.  What has been interesting about the conference has been the capacity of quite diverse academic and professional disciplines to converge in terms of their theoretical approach.  That is to say, each presenter at the conference offered the opportunity to re-imagine an aspect of our world in terms of sustainability.

One aspect of thinking about sustainability that struck me in particular from a number of presentations is the dimension of what I'll call professional thinking.  For example one speaker discussed the effect of sustainability assessment tools in architecture competitions on the design of sustainable buildings.  Her point, as I understood it, was that a more 'checklist' approach to architecture may detract from a more wholistic or qualitative approach.  The latter approach would take into consideration factors that could impact (positively) more completely in terms of sustainability or eco-design.

Another speaker discussed the role of tertiary education in teaching our teachers.  Amongst his points was that our graduates need humility and gratitude: teaching involves gratitude for the opportunity to serve and is humbling in the recognition of the centrality of the teacher's role.  Such attitudes, in conjunction with a keen sense of community, lend themselves to a philosophy and approach as a professional that embody interconnectedness and engagement with both community and the natural world - preconditions for educating youth in and for sustainability.

Both these discussions resonated in terms of legal education and indeed the practice of law.  The revision of the LLB at my own institution involves embedding sustainability as an overarching concept: a lens through which to learn the content mandated by our professional bodies.  But importantly, it also provides a pedagogy or a strategy or approach for teaching that aligns with what I took from the two discussions above.

The legal profession in Australia has for some years been asking why so few women are partners in private practice; why there are so few non-metropolitan practitioners; why (law) student wellness is such an issue; why there are high reported rates of practitioner mental unwellness...

Based on these now well-known issues, there are moves in legal education to incorporate different ways of teaching law: methods of teaching that encourage resilience, a reflective approach to practice and self-management.  These intersect with a greater emphasis on ethics - a move away from a traditional approach to ethics as a set of professional regulatory rules, to a more embedded approach that incorporates also 'soft' skills in communication and a more qualitative understanding of the nature of professionalism.  It seems that the academy and the profession is in agreement about the need for a new approach (see eg here).

And so to what I took from the speakers at the sustainability conference.  If we continue to teach our law students rules without context, and abstracted legal reasoning without attention to self, we run the risk of leaving a profession that is unsustainable. One which cannot support the justice system and serve society. One in which it is not sustainable for individuals to continue to practise.   Sustainability is a complex concept and poses particular problems for lawyers who prefer to have a tight definition; and who see sustainability in law merely in terms of environmental regulation.

Sustainability is much more than this.  It relates to our world and our place in it.  It relates to law as justice in both human, environmental and ecological terms.  It relates to our profession and to society; practitioner and client.  It relates to our personal and our professional self.  All of these aspects are inter-related and it is our responsibility to educate professionals who have the capacity to understand this and to experience these facets in a wholistic way.

Knowing laws does not make a professional and as with criteria for an architecture competition, adherence to a checklist of laws will not address wider and contextual issues that represent the essence of lawyering.  As with teacher education, humility and gratitude embody the intersection of personal and professional, or two sides of the same coin.  Our students deserve the opportunity to engage in their development during their study of law, and our profession and society deserves graduates who have this capacity.