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'.

Why the Great Barrier Reef should have legal standing

The Reef is under threat and needs our protection

Friday saw the announcement that the Great Barrier Reef Marine Park Authority ('GBRMPA') had approved dumping of dredging spoil within the boundaries of the marine park. This followed the Commonwealth's go-ahead for the construction of the world's biggest coal terminal at Abbot Point, off Bowen, to facilitate mining in Queensland's coal-rich Bowen Basin.

The decisions were made in the context of the Great Barrier Reef Marine Park Act which, under s2A (1) apparently aims to:

provide for the long term protection and conservation of the environment, biodiversity, and heritage values of the Great Barrier Reef Region.

Despite the Minister's assurances that the decisions have been made based on 'the science' and the dumping will be subject to rigorous conditions, the very fact of the decisions by both the Commonwealth government and GBRMPA call into question the real intent of the Act.

The Ecology of Land Regulation in Queensland

In the last couple of weeks, the Queensland government has passed changes to tree clearing legislation and introduced provisions allowing cattle to graze in certain national parks and reserves. Both changes represent a regulatory shift in land use priorities relating to biodiversity and conservation and the ecological sustainability of industrial farming that threaten legislative and policy progress on ecological sustainability.

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.

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.

Unbundling Interests in Land

It used to be that 'a man's house is his castle' and indeed this aphorism is reflected in the common law doctrine of cuius est solum, eius est usque ad coelum et ad inferos or he who owns the soil is theirs up to heaven and down to hell. Increasingly however this doctrine has been narrowed as interests in land have become unbundled.

I draw a distinction here between the recognition that one cannot literally own 'up to heaven' or 'down to hell' and what is considered to constitute 'land'.  

Originally the only reservation in a grant of land was the royal metals, gold and silver, which were reserved to the Crown.  That is to say, one would own the 'land' except for any gold/silver contained in it.  In Australia, various other minerals and metals were extracted from land over time - not by mining, but through legislative reservation of minerals for the Crown.  This resulted in creation of one subject of property rights - land - and a second subject of property rights - minerals.

Likewise, the common law recognised riparian rights - rights to water that flowed over or adjacent to land.  So water was considered to be part of the land.  This too has become 'unbundled', creating yet another subject of property rights.

The contemporary clash over coal seam gas in Australia represents another dimension of this progressive unbundling whereby the landowner loses control over access to resources under the ground and according to some landowners, also lose control over permissions to access land: they 'don't have a choice' in giving permission for the gas wells.

The result, as reported in The Weekend Australian there is an alliance between environmentalists and farmers both of whom reject coal seam gas as an interference in the farmers' control over farmlands.

The consequence of unbundling of property rights in this context is the creation of another market for private property interests (coal seam gas) that ostensibly directly competes with an existing private property interest (land ownership).  While there may not be anything inherently wrong with a private property interest or market (depending on your ideological persuasion of course) what does need to be considered here is the foundation that justifies the making of laws that allow this direct competition.

If private property interests are to be elevated above all else (a libertarian view of property) then there seems to be an inherent conflict between the pre-existing (private) property rights of the landowner and the subsequent interests of the coal seam gas rights holders.  Perhaps such competition is regarded as putting resources to their highest use (see eg Adam Smith and comparative advantage).  In this case, the law's granting of permission to extract coal seam gas will presumably be based on a public interest argument - that this land is put to more productive use by coal seam gas extraction than from farming.  Coal seam gas extraction seeks to meet global demand for energy production - a pressing public need.

The arguments by farmers and environmentalists challenge this.  These arguments seem to be based not just on protection of pre-existing private property, but are likewise public interest arguments about the utility of food production, land quality and wider environmental protection.  On this basis, not only is there a private property competition, there is also a competition for public goods.

It is my observation that these private/public issues are becoming increasingly prevalent, particularly in the context of the unbundling of property rights in land.  Where globalisation of problems - climate change, environmental degradation, human rights, sustainability, energy production - result in the need for national public responses, it is interesting to note the solutions proposed often, though not always, utilise private property interests and free market mechanisms.