Legal Education Digest
41 Law Teacher 3, 2007, pp 260–274
The law school experience for both student and teacher can be both exciting and yet daunting. The law student may come from a family background where a university education is unknown. The law student may come from a cultural background where the challenges of gaining an education need to be balanced by family and or work pressures. For many studying to obtain a law degree it is a time in their lives whereby education, work and family all collide.
For the university teacher there is the challenge of teaching students how to think like lawyers, think critically and to provide a bridge between the learning environment of the law school and the practical reality of acting as lawyers upon entry into the legal profession. Law teachers need to, and usually do, acknowledge that their students have different learning preferences. While some are auditory learners, others are visual. Today’s law teachers need to find ways to reach both groups of students.
In this educational context it is useful to examine the manner in which law teaching is undertaken. The current accepted method of teaching law requires students to read appellate judicial decisions from a designated casebook or a reported case digest and attempt to identify the legal principle arising from the decision (case method). The teacher then questions students about the case as reported to elicit the facts, the reasoning and the ratio. This is sometimes referred to as Socratic although it has been pointed out that in a ‘pure Socratic dialogue, the questioner seeks, with the other participants, to find an answer that is unknown to all of them.’ Generally speaking then the method used in a law school does not fall within the purest context of what is meant to be Socratic.
In the law school context the method described as Socratic can also be combined with the use of lectures, which is content driven, to form the basis for law school instruction. The most obviousproblem with lectures is that it is driven by the lecturer and that there is at best passive learning by the student and there is very little, if any, engagement with students. Even so it would appear, from the United States experience that the use of lectures as part of delivering information is still widely used as a primary mode of teaching law. An interesting aspect of that academic study by Friedland is that the use of lectures by teachers is more common in the latter years of the law degree rather than in the earlier years. An underlying assumption by those teachers may be that, in latter years of study, there is a belief that the material to be covered is best covered through direct conveying through a lecture. The suggestion is that teachers see the ‘lecture method as a quick and easy way to cover substantive material.’
The lecture model, however does not appear to sit well with the general acceptance that students need to be actively engaged in the learning process rather than through passive learning. There is also the problem that students can easily find a good deal of such content through internet sites. If lecturing still forms an integral part of the teaching methodology then law teachers need to be careful to structure their lectures in a manner that will enrich the experience for the student. A more structured lecturing approach may include utilising the lecture notes already provided on the web based sites as a starting point to facilitate discussion, to promote critical thinking and to engage students during classroom time.
The above discussion revolves around teacher led learning. Regardless of whether the teacher utilises a lecture, the casebook method or a combination of the two in conjunction with a Socratic style of delivery the underpinning context is that the law teacher is driving and guiding the learning experience. There have been responses to such approaches with a general move towards facilitating a greater emphasis on student learning. Weaver has identified a number of the potential difficulties with the case method including that there are too many cases, which cases should be selected and the concentration on appellate judgments clouds the role that is played by the lawyer. Weaver then argues that the problem method, whereby students are required to examine a facts situation and work through suggested solutions, may be more appropriate as a means for student learning and assist in analysing statutory provisions. It is suggested that the problem method is more appropriate for a latter year unit of study where students have already a solid foundation and can apply themselves to a deeper learning of the law. It would seem that the problem method does have a role to play within a law school.
Interestingly enough the final comment by Weaver in his article provides an insight into the way forward for law teaching, particularly in the context of the different learning approaches of students and the move towards student centred learning. Weaver concludes that the problem method offers many potential benefits ‘but, only when used in conjunction with other methods, is it an effective way to teach law.’ The need to examine a variety of learning strategies is critical to effective law teaching. It also provides a basis to examine and explore various other methods to engage law students. This has also been realised through the adoption of methods such as role playing and mooting in the classroom context and practical legal placement programs outside the classroom context. It is in this overall teaching environment that the concept of storytelling as a teaching methodology can be explored.
Storytelling in the classroom could come from the experiences of the teacher providing insight to law students as to the practical implications of acting like a lawyer. This type of storytelling is useful in exploring current practical issues rather than focussing on case law that has been drawn out to the appellate level. However this approach is again teacher focussed and provides for the teacher to determine what aspects will be raised with the class. Storytelling could take the form of students retelling their experiences of how they have been affected by the legal process and more specifically to the content of the unit of law being studied. This type of storytelling has the advantage of allowing students to provide direction to the discussion. It has also been suggested that this storytelling provides an opportunity for law students to ‘understand the perspectives of minority groups and for initiating racial reform.’ As the discussion takes place within the classroom setting the teacher is also able to provide comments and insights to the stories being told. An experienced teacher may also be able to draw parallels with the stories and the content of the particular topic being studied at that time.
Another approach that could be utilised is to require students to write a story covering the basic principles from the content covered in the unit of study. Having students draft their own stories has the advantage of engaging students but it would be critical for the exercise to be well structured, with the teacher providing sufficient direction to students.
The above discussion utilises the notion of storytelling in the context of stories through the narrative (oral and written means) usually by students and also storytelling through the use of practical and real case studies usually by the teacher. This notion of stories and cases is explored by Carrie Menkel- Meadow and how they can be used to teach legal ethics. The suggestion is made that ‘cases and stories give us more information and more choices to consider than does the primary text of education the “completed” appellate case.’ The idea behind this argument would seem to be that the use of stories and cases in this context can provide a more realistic and concrete way of dealing with the content material. It would also seem to satisfy the goal of effective teaching in engaging students in the learning process.
These storytelling approaches can enrich the learning experience of students. A close evaluation also reveals that such storytelling is advocated as an alternative to the case method as described above in the introduction. However a re-examination of the case method may provide a platform for which a different form of storytelling may evolve.
There have been suggestions in the literature that there should be fewer cases selected for students to read. In this regard Clermont suggests that there should be an enriched case method whereby only the key cases are studied in line with the general notion of critical analysis. The suggestion is then made that there are other benefits from a closer examination of the relevant and central features of these key cases. There is an opportunity for students to look more closely at the roles played by the lawyers, to evaluate some of the policy aspects behind how the case led to being litigated.
This storytelling concept has been taken up by Caron in the Taxation Law arena. Caron suggests that as ‘the archaeological approach to storytelling is based on the available objective historical record of litigated cases, it avoids a recurrent criticism of narrative scholarship — that is based on subjective stories by individual authors and, this, cannot be tested and replicated by others.’
In essence the emphasis of this style of storytelling is on retelling the historical context of the facts that led to the litigation between the parties. The process does not allow for students themselves to be actively involved with the retelling of the stories behind these key cases. The question that arises is whether it may be more appropriate for students to be assigned to re tell the story behind the litigated key case to other students in the classroom context. The other question then arises how, if at all, the teacher is to be involved in this storytelling experience.
The approach suggested by Caron relies on experts telling the historical stories behind the cases. As noted by Mehrotra in a review of this model of teaching ‘by combing through the lower court decisions and transcripts, the litigants’ briefs, oral arguments, the occasional magazine and newspaper article, and even the archival papers of some of the justices, the authors provide an incredible amount of data about the broader circumstances that shaped some of these fundamental tax decisions.’
The approach taken in Tax Stories by the expert author is the same for each case. There is a discussion of the background of the decision including prior proceedings before the litigation reached the Supreme Court, the Supreme Court decision itself, the impact of the decision and the continuing importance of the decision today. This approach provides a convenient and easy to follow method for the student using the book as a resource
However it seems to me that a more interactive and engaging style of teaching may be realised if students were given the opportunity to read the appellate judgment of these fundamental cases and recite the facts, history of the parties, the underlying policy considerations to the rest of the class as part of a student led discussion.
Seizing upon this idea I decided to introduce a more concentrated attention on a number of landmark High Court decisions in the Income and General Deductions arena of the Revenue Tax course. The concentrated attention was designed so that assigned students would lead the discussion for the rest of the class. Interestingly enough when there was a call for members of the class to take part in this interactive idea, there was no shortage of volunteers wishing to be involved. These final year students were very much used to the pre set discussion problems that they may have become disinterested and had disengaged from the learning process. The storytelling exercise was added value. This contrasted with the usual lack of interest when students had been requested to prepare set problems.
The first case selected was a 1966 High Court decision: Scott v FCT. All students were asked to read the case for the following class as would normally be the situation while the assigned students were requested to prepare particular responses to set questions for the benefit of their classmates. An important aspect of this exercise was to request that all students of the class read the full judgment of the High Court and not just the extracts from the judgment that were provided in the prescribed Tax Casebook.
A small group of students were requested to ‘retell the story to the class.’ In doing so the students were requested to explore the factual issues, the relationships of the parties, how the conflict arose and how it was subsequently resolved. This group also had the opportunity to focus on the stories that the taxpayer and the Tax Commissioner presented to the court. The emphasis by this group was to examine the background and explore some of the underlying reasons why this particular matter was litigated. They were then required to recount what they had discovered from the full report of the case and any other associated information. From the perspective of storytelling it was important to emphasise to this group that there was associated information apart from the reported judgment. However in this particular case, the judge did go into lengthy detail as to the factual circumstances associated with the parties. This aspect provided students with a lead into being able to research the background associated with this memorial and develop an appreciation of the generous nature of the donor. So by examining the factual circumstances of the case and the associated actions by the parties a clearer story can be told.
The second group of students were asked to determine the legal principle of the decision. These students were then required to apply that principle or proposition to a question in the tutorial discussion questions and provide a workable solution. From the perspective of showing the importance of the decision it was necessary to illustrate or portray a proposition from the case.
The third group of students were asked to apply the principle or proposition to a situation today and how an individual client may need to structure an arrangement if they wished to give a gift to their legal professional. This exercise demonstrates the continuing importance of Scott’s case as there have been no legislative responses to the giving of unsolicited gifts. Students were asked to indicate to the class how the assessability or otherwise of such gifts would be dependent on the relationships underlying the basis for the gift and whether the legal professional or other professional for that matter may have already been fully remunerated for their services.
The class was led by these groups of students and there was no direct involvement by me as the teacher. This may have suited some students, particularly those students who are vocal in their views and can easily engage in class discussion. It may not have suited other students, who look to the teacher as providing clear and coherent discussion in a classroom. There is a fine line in providing an opportunity for students to discover their way through the historical basis of these stories and for a teacher to emphasise what is important for students as part of the learning experience.
The above storytelling model was also used for two other critically important income cases concerning the identification of a business activity and the assessability of profits made through that business activity. The cases selected, namely FCT v Whitfords Beach Pty Ltd and FCT v Myer Emporium Ltd deal with the central question of whether an amount is to be characterised as a capital receipt (not assessable before capital gains tax) and an income receipt (assessable as ordinary income).
Students were again asked to portray the story behind the factual circumstances of the litigation. In particular students were asked to look at the various lower court decisions that eventually led to the matter being resolved in the High Court. In the Australian judicial system, the High Court is the highest court in the legal system and there are no further avenues of appeal. This particular aspect was not covered in Scott’s case as the litigation in that case did not include a number of lower court decisions due to the judicial system in place at the time of that High Court decision. This additional element in the storytelling process provided added depth to the discussion and required the assigned students to explain this aspect of our legal system as it applied to Revenue Law. This was considered appropriate on the basis that this storytelling exercise was undertaken at about the halfway point of the teaching semester with students becoming more engaged in the content material of the course.
In Whitfords Beach Pty Ltd the taxpayer was a company formed by a group of fishermen who originally owned all the shares. The company acquired land next to some shacks (small recreational house) which allowed the fishermen access to the beach. This historical factual scenario was important for students to address as it set the whole scene for the dispute between the parties, namely the taxpayer company and the Revenue authorities and how to treat the profits made on the eventual disposal of the land. Focussing on this aspect of the facts shows through the retelling of the story the underlying basis for the original acquisition of the land, namely for recreational purposes, and why the taxpayer company was not interested in selling the land for a profit making purpose. This is in essence the notion of the story behind the litigation.
For the group of students retelling the story leading up to the litigation there was a need to investigate further than just the facts as retold in the High Court. For instance the particular land in question was on a Perth beach which, at the time of the case, was under developed and not zoned for development. Instead it was not uncommon for these shacks to be constructed as part of an overall recreational venture. At the time the emphasis on owning the land was on providing access to the beach where the shacks had been built. References to shacks being built on such beaches in Perth are referred to in relevant Perth Coastal Planning Strategies and also in the Legislative Assembly of Western Australia where it is clear that such structures were clearly for recreational purposes. On that basis the students are able to reject any suggestion that the taxpayer company had acquired the land for profit making purposes. However by recounting the story behind the change in the shareholding of the company and the subsequent change in direction as to the manner in which the land was to be held provides an insight into the litigation process.
As has been pointed out by Foley and Robbins a story is ‘an account of a character running into conflict, and the conflicts being resolved.’ So students were asked to recount the character (company taxpayer) and how that character ran into conflict with the Revenue authorities and how the conflict was resolved (final binding decision by the High Court). This element of the storytelling by the allocated students is somewhat more detailed than in Scott’s case as there are other underlying elements at play. By the time that the conflict had reached the High Court it was quite clear that the lawyers had defined the parameters of the dispute, namely the distinction between income and capital and how it was to relate to the profits made by the taxpayer company. As part of the storytelling exercise it was appropriate for students to focus on how the lawyers had thought about the conflict and how it was to be resolved by the High Court. As has been pointed out by Foley and Robbins ‘law school is not simply about learning legal analysis. It is — or should be — about learning to be a lawyer: about learning to win cases.’ In this regard, when students started discussing the legal issues arising from the story, it became necessary to determine the existing legal propositions that would eventually be utilised by the High Court to resolve the dispute. In the case of Whitfords Beach the legal proposition that was to be examined was whether the activities undertaken by the taxpayer company when it decided to sell the recreational land constituted a mere realisation of the land (capital receipt and at the time not assessable) or whether the activities themselves constituted the carrying of a business (income receipt).
An appreciation of the role of competing lawyers assists students to understand the legal issues and how they may prepare their own briefs for their clients when they graduate from law school. In the context of the actual High Court decision in Whitfords Beach it was also necessary for students to examine its ongoing importance. Considering that the High Court decision is used as a basis for legal argument in the area of the taxation of profits arising from a business activity illustrates the need for students to clearly understand its context and the fact that redevelopment of recreational or residential land can lead to the profits from that transaction as being assessable as a business activity.
The case of Myer Emporium Ltd provided students with a complex array of facts to recount. The background to the facts was also quite complicated and required a close evaluation of how a series of transactions entered into by the company led to a conflict with the Revenue authorities. Although the taxpayer was carrying on a business and there would be an expectation that profits generated would be business profits the taxpayer claimed that the profits derived were capital in nature and that the mere realisation principle applied. On the surface the facts tended to support this assertion. However when students looked to the structure of the series of transactions entered into by the taxpayer, as parent company, with its related companies, then a different perspective is ascertained and a different dimension of the story emerges. And it is this dimension of the story that the students can retell to their class mates. It should always be remembered that ‘the resolution of any individual case in the law relies heavily on a court’s adoption of a particular story, one that makes sense, is true to what the listeners know about the world, and hangs together.’
Students can then see the litigation as the end result of the story and the need for an independent judge to determine the result and from a perspective of the legal system lay down a relevant legal proposition. Seen in this light storytelling is the critical element of the teaching process and provides a foundation for students to engage in the learning process. As noted by Coulter and Michael ‘storytelling can be perceived as tangible when individual awareness advances storytelling into the educational content of the curriculum.’ On this basis storytelling is itself the teaching methodology.
It is recognised that teacher reflection on the processes utilised in their teaching methods is important. In this context I prepared a student feedback sheet to capture student appraisal of the storytelling exercises by their peers. The first three questions asked for the students to indicate whether they felt the storytelling approach for the Whitfords Beach and Myer Emporium cases helped them in their understanding of the legal issues and the underlying factual issues. The final question asked whether the student was able to identify with the position of the parties and how the litigation led to the decision by the court.
Of the 90 students in my classes 60 students participated. The majority of those students (approximately 95 per cent) provided positive feedback, indicating that the exercise was clearly worthwhile. A closer examination of their responses indicated that 10 of those students had reflected more deeply about the exercise and provided a more beneficial response.
Although the response by students was positive there were another 10 students who specifically made reference to the need for the teacher to assist in the discussion and provide necessary direction. On reflection this does appear to be appropriate. Students are comfortable with their peers participating but are also looking to the teacher to provide guidance as to what is important in the discussion. On that basis I ensured that, with the next storytelling activity, I led discussion as to the continuing importance of the case today.
In the area of whether travel expenditure can be deductible the leading case of Lunney v FCT; Hayley v FCT was selected. Nominated students were again asked to recite and retell the factual story surrounding both taxpayers and identify the legal principle arising from the full High Court decision. The teacher led discussion revolved around the question of why this case was so important in the area of travelling expenses and the continuing relevance in today’s complex and busy society. The week after this exercise in class I again requested students to provide feedback.
The feedback was again very positive with comments such as: ‘The storytelling broke the case down, provided expansion and more detail to brief casebook.’
In the context of whether students found it helpful that the teacher assisted the discussion and if so how, the response was overwhelming in favour.
However even though students were in favour of this storytelling approach there were still comments from a number of students that indicated that they preferred other methods as part of the teaching of the unit. This could be resolved by requiring students to present their stories from the cases in a variety of ways, including the use of visual aids or even through the use of drama.
By having students examine the historical context and the underlying rationale for the nature of the dispute of seminal cases in an area of the law, the students are able to ignite interest and engage in the learning process. Students also can appreciate the reasons why the dispute escalated to involve the court processes and examine the litigation techniques utilised by the various legal advocates. Retelling the story behind the case in the classroom also enables the teacher to assist in the process and where necessary streamline the discussion. The end result is a more interactive and engaging learning experience for all concerned. In essence, it provides a foundation for a teaching pedagogy in today’s law classrooms