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Helen Brown[*]
I want to talk about competition at law school. Students compete frantically in their final year at secondary school for a law school place. Because of the ranking of sandstone, red brick and ‘yellow brick’[1] universities, students also compete for a place in a law school as high up the hierarchy as possible. Where the prominent mode of assessment is an end of year exam, students are pitted against each other in an individualistic pursuit of the highest marks. With the rapid expansion of the number of law schools and their increasing intake of students, they also compete frantically for employment in a contracting labour market. This ethos of individualism and competition is perfect training for lawyers who will bolster and perpetuate laissez-faire capitalism.
In this article, I advocate strategies to minimise this cult of individualism and competition among law students. This will help to produce lawyers who are alive to the issues of structural inequity in society, to the fact that law is a political tool which apportions power unevenly and to the need to pursue law reform and social justice for the disadvantaged. Through the use of clinical legal education programs, law schools can foster learning through collaboration, teamwork and cooperation. The power differential between student and teacher can be dramatically reduced and students can learn in a supportive, cooperative environment. However, if these alternative modes of teaching and learning are only encountered in an elective clinical subject, little will be done to displace the overarching ethos of competition and hierarchy in the law school of the early new millenium.
How can we foster a spirit of co-operation and collegiality among students when the ethos of law school is primarily one of survival and success for the fittest? I believe we should change the means of admission to law school, employ alternative teaching and learning methodologies, introduce more creative and flexible means of assessing students, and finally, we must consciously endeavour to minimise hierarchy and competition in the lecture theatre.
The last ten years in Australia have seen a massive increase both in the number of law schools and the number of law students. Statistics produced by the Centre for Legal Education, Sydney, reveal that in 1994, there were 21,665 Australian undergraduate law students, compared with 29,428 practising lawyers. Hence, nearly seven years ago the crop of law students had reached nearly three-quarters (74%) of the number of lawyers throughout Australia.[2] From 1987 to 1994, the number of law schools in Australia grew from 13 to 25.[3]
Another statistic: between 1988 and 1992, the number of law students increased by 60.7%. There was no corresponding growth in the number of business students, health students or in any other field.[4] Importantly, there has been no corresponding growth in employment opportunities for law graduates.[5] Accordingly, Australian law schools are turning out increasing numbers of law graduates into a market where they are competing for fewer jobs.
This massive expansion in law student numbers in an era of belt-tightening and contracting job opportunities must lead to increased anxiety among law students about their employment prospects. This in turn can lead to high levels of competition for good marks to maximise employment prospects in a contracting labour market.
Coinciding with the growth in law student numbers are significant cuts in government funding to universities. These two factors are, in fact, directly related. Since the late 1980s Commonwealth government funding for universities has been substantially reduced. This coincided with the introduction of a tax to be paid by students. The Higher Education Contribution Scheme (HECS) was introduced in 1989. This marked a significant policy shift from a federal government obligation to fund tertiary education to a commitment to recouping education costs from the student recipient. In addition, the basis on which funding to law schools is determined is now the number of effective full-time students enrolled (known as the EFTS: the number of effective full-time students). In the context of reduced funding, law schools had little option but to dramatically increase the number of students to gain adequate funding.
As Eugene Clark has noted, this had the unfortunate impact of promoting a return to large class sizes, fewer tutorials, assessment largely by exam only, and a return to a traditional ‘talk and chalk’ teaching methodology.[6] This return to traditional methods of teaching and assessment, in the face of larger class sizes, tends to minimise contact between student and teacher, further contributing to the hierarchical, individualist and competitive ethos among students.
The mode by which we select students for law school entry also fosters a competitive ethos among students before they are even offered at place at law school. In Victoria, students are offered tertiary places on the basis of their TER score in their final year of secondary school. This score is basically reached by adding up their marks for each subject, with some subjects being more heavily weighted than others. The top two or three percent of secondary students are offered a place in either law or medicine, depending on their preference.
This mode of selecting law students fosters an intensely competitive ethos before students even set foot in law school. Secondary school students know that they must be at the top of the pile throughout the State if they seek a place in a law school.
Is this an adequate or appropriate way to select law students? There is no natural or inevitable correlation between excellent marks at secondary school and the abilities needed to practice law. I suggest that these high entry requirements simply feed into elitist notions about the social status of the legal profession without an adequate connection to the skills required to practice law.
Indeed, some recent writings suggest that rather than academic excellence, the substantive skills needed for adequate lawyering are communication, listening and counselling skills.[7] An ability to perform well in an exam-based culture at school does not in any way measure an ability to handle the lawyer–client interface with empathy, sensitivity, respect and tact. It focuses exclusively on written rather than verbal skills. To illustrate a point, let me quote from a recent graduate who was interviewed for Professor Margaret Thornton’s book Dissonance and Distrust: Women in the Legal Profession. The student spoke about her legal education thus:
You were spoonfed. I mean this. I don’t know if it is just this law school or law schools all around Australia but it was disappointing … it was like High School again … I used to be horrified about the way people took notes in all lectures. Every single word, you know, and they do it now in the last year, and that’s the way they pass — and they are top ‘A’ students — just throwing lecturers’ ideas back at them. I mean any idiot can do law and any idiot can get a law degree.[8] [My emphasis]
It is her last statement that most interests me. Can I suggest that it doesn’t take intelligence to get a law degree, just a willingness to conform to the rigours of the discipline and to jump through all the requisite hoops? The reality that only the most successful of students are accepted into law school simply reinforces elitist notions about lawyerly intelligence and privilege.
Is it too ridiculous to suggest that entry requirements be changed from a focus on exam marks to an ability to communicate? Perhaps we could combine an academic assessment with a face-to-face interview and an assessment of the applicant’s voluntary and paid work experience.
Neither the Australian legal profession, nor the Australian law student population reflects the socio-economic, class, ethnicity, race or gender composition of the society at large.[9] Andrew Goldsmith refers to an unpublished survey of Monash law students undertaken in 1990 by Dr Gay Baldwin. He says the findings indicate that the demographics of law students has become more elitist and exclusive. For example, the number of students who attended private schools had risen from 61.2% in 1982 to 74.6% in 1990. Law students with parents in managerial or professional employment had risen from 70.5% in 1982 to 76.7% in 1990.[10] Eugene Clark has also noted the lack of access to legal education for Aboriginals, migrants, lower socio-ecomonic groups and other underprivileged Australians.[11] One can safely speculate that the introduction of the Higher Education Contribution Scheme in 1989 and the decision in 1996 to charge law students the highest rate of HECS tax has done little to improve access to tertiary education for public school, working class, disabled, migrant, indigenous and poor students.[12]
The elitist demographics of the law student population ensure that our socially privileged legal profession will simply continue to reproduce itself. Law faculties are populated by those already at the top of the social hierarchy. Small wonder that lawyer jokes abound and lawyers are rated lower in popularity than used-car salespeople!
In 1982, Duncan Kennedy, one of the prominent critical legal scholars, wrote an incisive, provocative indictment of the perpetuation of hierarchy in legal education.[13] Given the reversion to large lectures as the dominant teaching methodology and the enduring tendency to use exam-based assessment, his indictment is unfortunately still compelling 18 years later.
We only have to turn to the accounts of law students themselves for confirmation of their alienation and dissatisfaction with traditional teaching and its inherent hierarchy, individualism and competitiveness. Miranda Stewart conducted in-depth interviews with 12 of her peers who had just completed their law degree at Sydney University. She recounts that they were unanimously damning about ‘the division and indifference, hierarchy and competition’ that pervaded the law school.[14] In terms of the hierarchy imposed in the law school, she describes the layout of the law school building, a 14-storey office block where the student and classroom facilities are on the first three levels and the staff offices are up on the 11th, 12th and 13th storeys.[15] The design and layout of the building geographically reinforced the notion that the staff are distant and removed and higher up the law school ladder than the students.
Stewart summarises the opinions of her peers as follows:
The single most criticised aspect of our education was the atmosphere of competition. We all feel that academic and job competitiveness pervades SULS.[16]
She described the annual practice of putting up a ‘merit list’ in the main foyer at the start of each year which lists by name, from top to bottom, the academic ranking of each student entering their final year.[17] This practice was said to epitomise the competitive ethos that pervaded the law school. This public and explicit ranking of students clearly serves to foster and entrench a competitive ethos, pitting student against student.
Similarly, Jennifer Howard, writing to praise clinical teaching methodology, is equally damning of the competition and isolation embedded in traditional teaching methods. She says:
The traditional Socratic method emphasises client-less analysis in a situation of competition and isolation, and in the process seriously undermines students’ confidence and self-esteem.[18]
She goes on to remark that traditional methods create a learning environment where the code is ‘survival of the fittest’, noting that teamwork and collaboration are essential skills for the practising lawyer. She says:
By encouraging a constant state of competition, the traditional method of legal education implicitly supports a system where it is ‘every man for himself’. The traditional approach offers little, if any, opportunity for students to develop skills necessary for teamwork. This learned isolation is ultimately to the students’ disadvantage, because, in truth, most lawyers …depend on collaboration with others to achieve their goals.[19]
What few accounts there are from law students clearly indicate enormous dissatisfaction with the competitive, individualist ethos fostered by traditional teaching and assessment methodologies.
I have already alluded to the growth in law student numbers and the flow-on reversion to traditional teaching methodologies. Increased student numbers has led to an over-reliance on exam-based assessment. Exams entail frantic cramming and regurgitation in a pressure-packed three hours, with little long-term retention of subject matter. Given the recent emphasis on student-centred learning and new teaching methodologies,[20] it is paradoxical that the three-hour final exam still predominates in law schools.
There is no doubt that alternative assessment modes can be more time consuming and resource intensive. But if we are committed to producing quality lawyers, capable of working co-operatively in the workplace and able to listen and communicate effectively with clients, we cannot be content to simply administer exams. I advocate modes of assessment where students work with each other, rather than being pitted in a fierce competition against each other. For example, ask students to work in groups to present a paper to the class. Divide them into teams to debate a hot topic in the subject. There is nothing to prevent class papers being set where the students work as a team to prepare a written paper. Needless to say, it takes careful planning and groundwork to encourage students to learn in a collaborative manner. I try to lay the groundwork for collegial learning from the first class each semester. Students sit in a circle with all desks facing each other. I simply join the circle, rather than imparting knowledge from a great height behind a podium. Class discussion is encouraged on the explicit basis that no-one talks over the top of another, that respect for peers is shown at all times and that space is allowed for the quieter, more reluctant students to contribute.
Because a large part of the course is devoted to communication, listening and interviewing techniques, we do a lot of role plays and team-work exercises to demonstrate and practice the skills being learnt. Students are encouraged to provide constructive feedback to their colleagues following each role-play. While the prospect of performing in front of their peers is daunting at first, my students’ written evaluations and their comments to me at the end of semester universally indicate they enjoyed this method of learning and assessment.
The research of Goldsmith,[21] Stover[22] and Granfield[23] all indicate that as their law studies progress, students tend more and more to see law as a game. They adopt what is described as a ‘game-centred approach’ to law. Does this follow from a curriculum that dwells in the main on appellate decisions, rather than the nuts and bolts of client interaction? If students perceive that practising law is a game, then we should ask them to consider very carefully which team they wish to join. Do they wish to work for mining companies, banks, multinationals and insurance companies in the central business district? Or do they rather seek to help and empower the poor and disadvantaged? If they choose the former, they will almost certainly be acting against the interests of the disadvantaged and the powerless. If students regard law as a game, then we had better make explicit the politics and the economic consequences of a game which reinforces the status quo. The game is not just about victory for your team; it can be about basic human rights, such as livelihood, freedom from incarceration and discrimination, income, shelter and freedom from harassment or violence. If it is a game, then the stakes are high and one wants to play for a team one respects and admires. We should urge our students to articulate the consequences of this game-centred paradigm.
It is a frequent criticism of law school teaching that the focus is almost exclusively on appellate decisions, without any focus on the political, social, local or historical context. Indeed, it was in response to this criticism that clinical programs were first introduced into the law school curriculum. As our students work with clients at the local community legal service, the focus is inherently far removed from appellate decisions. Instead, students focus on interviewing clients, gathering evidence, preparing cases for hearing and empowering clients to pursue remedies through a practical application of the law. In subjects such as the one I teach at La Trobe University, class sizes are smaller, assessment in continual rather than exam-based and the hierarchy between teacher and student is minimised.
However, it is not sufficient to simply offer an elective subject where alternative teaching and learning methodologies are employed if, in the main, traditional teaching and assessment methodologies continue to prevail. I advocate that small class sizes, collaborative learning techniques and non-exam-based assessment should permeate the entire law course if law scholars and teachers wish to produce socially responsible lawyers versed in social justice and the need for law reform rather than social Darwinist notions of competition unto death. We then have substantive methods to explicitly teach access to justice and the need for a redistribution of power in society. However, if we continue to use large lecture theatres and exam-based assessment, we simply bolster the status quo in a market where the dominant paradigm is laissez-faire capitalism.
References
[*] Helen Brown teaches in the School of Law & Legal Studies, La Trobe University and is a supervising Solicitor at the West Heidelberg Community Legal Service. In her subject, Clinical Legal Education, she teaches eight students a semester, using collaborative learning and a continual assessment model.
[1] See Howe, A., ‘Law out of Context (Or Who’s Afraid of Sex and Violence in Legal Education)’, in this issue, (2000) 25(6) Alt.LJ, 274.
[2] Goldsmith, A., ‘Warning: Law Schools Can Endanger Your Health’[1995] MonashULawRw 11; , (1995) 21(2) Monash University Law Review, 272, footnote 1.
[3] Goldsmith, above, ref 2, p.272, footnote 2.
[4] Clark, E., ‘Report: Australian Legal Education a Decade After the Pierce Report’[1997] LegEdRev 10; , (1997) 8(2) Legal Education Review, 213 at 216.
[5] Le Brun, M. and Johnston, R., The Quiet (R)evolution. Improving Student Learning In Law, Law Book Company, 1994, p.24.
[6] Clark, above, ref 4, p.220.
[7] See for example, Handley, R., and Considine, D., ‘Introducing a Client-Centred Focus into the Law School Curriculum’[1996] LegEdRev 8; , (1996) 7(2) Legal Education Review, 193.
[8] Thornton, Margaret, Dissonance and Distrust: Women in the Legal Profession, Oxford University Press, 1996, p.92.
[9] See Bird, G., The Process of Law In Australia: Intercultural Perspectives, 2nd edn, Butterworths, 1993, p.198; and Weisbrot, D., Australian Lawyers, Longman Cheshire, 1990, pp.80–93.
[10] Goldsmith, A., above, ref 2, p.278.
[11] Clark, above, ref. 4, p.217.
[12] Clark, above, ref 4, p.218.
[13] Kennedy, Duncan, ‘Legal Education and the Reproduction of Hierarchy’, (1982) 32 Journal of Legal Education 591; Kennedy, D., ‘Legal Education as Training for Hierarchy in David Kairys (ed.), The Politics of Law: A Progressive Critique, Parthenon Books, 1982.
[14] Stewart, Miranda, ‘Conflict and Connection at Sydney University Law School’[1992] MelbULawRw 20; , (1992) 18 Melbourne University Law Review, 828 at 837.
[15] Stewart, above, ref 14, p.837.
[16] Stewart, above, ref, 14, p.841.
[17] Stewart, above, ref 4, p.841.
[18] Howard, J., ‘Learning to ‘Think Like a Lawyer’ Through Experience’, (1995) 2 Clinical Law Review, 167 at 172.
[19] Howard, above, ref 18, p.174.
[20] Le Brun and Johnston, above, ref 5.
[21] Goldsmith, above, ref 2.
[22] Stover, R., Making it and Breaking it: The Fate of Public Interest Commitment During Law School, University of Illinois Press, Chicago, 1989.
[23] Granfield, R., Making Elite Lawyers: Visions of Law at Harvard and Beyond, Routledge, 1992.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2000/105.html