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Barker, D --- "From the Editor" [2007] LegEdDig 39; (2007) 15(3) Legal Education Digest 3

From the Editor

Professor David Barker AM

[2007] LegEdDig 39; (2007) 15(3) Legal Education Digest 3

The proliferation of publications relating to legal education is an indication of the growing importance of this genre for the development of future legal practitioners. This does of course lead to problems for the Editorial Staff of the Digest as to how they decide on the limited number of articles which can be published in each edition. As Editor I am also faced with the additional challenge of selecting a published text for review which has both a wide appeal and relevance for the readers of the Digest. In this respect we always welcome feedback from our readers as to the nature and scope of the articles chosen to be digested and published.

The book review in this edition refers to Practical Legal Skills by Hyams, Campbell and Evans. This relates in particular to the teaching of ‘lawyers skills’ which is currently a controversial topic as to its place in the law school curriculum.

In the first of two articles to be digested under Clinical Legal Education, Berenson focuses on a primer for ‘in-house’ clinics whereby the supervision of the students’ case work is conducted within the law school. This is as compared to the normal practice of such supervision being undertaken by ‘externship’ clinics. An additional value to students using this primer is the incorporation of a brief history of civil legal aid for poor people in America. This history has the advantage of putting into context the value of clinical legal education for the student. In complete contrast, Phan traces the development of clinical legal education in China, where the state has imposed a new law which enforces a mandatory obligation on lawyers to engage in legal aid. Of interest to those involved in practical legal training is the effect that this law has had on Chinese law students requiring them to become involved in the practice of poverty law. The article examines the influence of a Ford Foundation initiative whereby a Committee of Chinese Clinical Legal Educators (‘CCLE’) was established to promote a more participatory, interactive (hudong) clinical model for Chinese clinicians. The expected long-term aim of the programs is the development of ‘justice-oriented clinics’ which respond positively to the challenges posed by the 1992 MacCrate Report of ‘striving to promote justice, fairness and morality.’

Under Computer Assisted Instruction, Nevers raises the question as to whether it should be librarians, and not the representatives of the suppliers of online legal information systems, who should provide the training in computerised assisted legal research (CALR). In a thought provoking discussion, Nevers examines the development of CALR from the late 1970s onwards and explains the reasons, both economic and technical, whereby the teaching of CALR has fluctuated between librarians, law academics and the representatives of commercial vendors of online legal information systems. This discussion involves not only the technical mastery of CALR but the whole issue of legal research and its place in the law school curriculum.

It is unusual for the opportunity to arise for the Digest to publish an article under the heading Cultural Perspectives. However, Brostoff reflects on the challenges faced by law academics when teaching international law students’ programs involving U.S. law and legal reasoning. The increasing globalisation of legal education and practice means that U.S. law academics have to adapt their teaching styles depending on whether they are teaching U.S. law to students overseas or in the United States itself. The conclusion reached in the article is that such a process can result in both international students and teachers enriching their understanding of both law and its cultural underpinnings in the U.S. and the students’ home countries.

This theme of globalisation is carried through to Jensen’s article under Curriculum which questions the current trend to internationalise this area of law. The author expresses his concern that ongoing emphasis on transnational legal education needs to be based on the study of a relevant national legal system. If this does not occur then inevitably international, transnational and comparative ideas will replace, rather than supplement, instruction in the American legal system.

In direct contradiction, Nottage’s topic, classified under Individual Subjects/Areas of Law, relates to the pressures on legal education systems world-wide to reform. Particular emphasis is placed on how this impacts on arbitration law and practice in Australia. The author argues that teaching arbitration at universities should not be primarily focused on teaching students to become arbitrators. It should be more concerned with nurturing the ‘fundamental lawyering skills advocated in the ‘MacCrate Report’. The fact that this Report features in more than one article in this edition of the Digest is unsurprising in view of its influence since it was first published.

After much discussion, the article by Zeppos has been classified under Legal Education Generally. Although its title is the Future of Legal Education, its contents are mostly concerned with a wide-ranging review of the purpose of law schools, their funding and how they should re-conceptualise themselves in the future.

Legal Ethics is obviously an on-going and much publicised topic within legal education journals. In this edition we consider Hyatt’s concern regarding the growing disconnection between legal education and the practice of law. This has to be balanced against Chavkin’s response to the Carnegie Foundation Report whereby he proposes a replicable model of ethics education; this model endeavours to be both affordable and manageable within the financial and other realities of American legal education.

Under the classification Minority Groups, Barnes reviews the analysis by Professor Richard Sander in the Stanford Law Review of the outcomes of Grutter v. Bollinger in the American Supreme Court. This upheld some affirmative action programs in U.S. legal education as constitutional, whilst Sander had developed a mismatch hypothesis in respect of this decision whereby an adverse number of black law students systematically under perform in American law schools. Barnes argues that this analysis does not withstand scrutiny. Whilst the author considers the mismatch hypothesis is not an unreasonable theory, their view is that the theory is unrelated to race but is more suited to the comparison of performance of students with the same absolute credentials across a variety of law schools. Whilst the article therefore refutes the mismatch theory in its relationship to race, it advances the theory that race-based barriers are explicitly related to race. The author states that they have attempted to clear away the confusion surrounding the mismatch theory and its relationship to affirmative action policies.

In an intriguing article on the ways that war effects legal education within the heading Planning & Development, Waters reviews the role which legal education plays both during conflict and its ability to adapt to post-conflict reality. In respect of the latter the author gives examples of instances where legal education has been able to quickly re-establish itself following conflict despite the logistical challenges which often arise in such situations.

On the topic of Skills, Southerland considers the current state of legal writing within the law curriculum and proposes a strategy for improvements which would encourage accuracy, clarity and brevity. This should lead to a heightened interest by students in legal materials and in their ability to express themselves quickly and accurately.

The two concluding articles involve Teaching Methods & Media. In the first, Rakoff & Minow return to the never ending topic of the Case Method form of teaching. They are principally concerned with improving Langdell’s system of teaching by introducing the business school model, incorporating materials from legal practitioners and including these materials in the first-year curriculum rather than reserving them for capstone courses. In the second article under this heading, Barnett is concerned with improving feedback on student writing in law schools. The author’s goal is for law academics to examine the different critiquing forms which are available and to encourage the use of some form of electronic feedback for students.

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