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Phillips, E et al --- "Exceeding the boundaries of formulaic assessment: innovation and creativity in the law school" [2011] LegEdDig 19; (2011) 19(2) Legal Education Digest 8

Exceeding the boundaries of formulaic assessment: innovation and creativity in the law school

E Phillips, S Clarke, S Crofts and A Laycock

The Law Teacher, Vol 44, No. 3, 2010, pp 334-364

It is an obvious truism that creative and innovative assessment regimes are an essential component of the architecture of teaching and learning in the twenty-first century Law School. The emphasis, however, has tended to focus on creative and exciting teaching methodologies which are not, then, mirrored by equally diverse assessment strategies. Too often the most innovative teaching is coupled with mundane assessments based on formulaic coursework and examinations.

The need to improve the quality of student learning is one of the drivers of diversity and innovation in assessment. It is a recurring theme in the literature, where it is noted that getting a close alignment between the teaching, the learning outcomes and the assessment will result in better learning on the part of the student.

The rest of this article will seek to explore the points made above and will set this discussion in the context of the experience of the Law and Criminology Department at Greenwich University. In particular, the article will then consider four areas where the authors have been responsible for forms of assessment that may rightly be described as innovative, or even (daringly), unique: (1) The use of a CPD mechanism in the teaching of the first year course on Legal Method; (2) The assessment of learning and research skills through a range of WebCT assignments; (3) The use of a web page assignment in the teaching of Land Law; and (4) An assessment regime for a final year Human Rights Law option which aims to make assessment an integral part of the learning experience.

Legal method: assessing experiential learning

In 2004, the Law Department at Greenwich radically altered the structure of skills teaching in the first year by changing the LLB programme so that a free-standing 30-credit (two-semester) Legal Method course could be introduced into the first year curriculum. This move was motivated by the Department’s consciousness that first year law students’ feelings of being alienated and discouraged often stem from the fact that they lack the essential skills necessary to engage adequately with the first year curriculum and that some were unable to manage the shift from what was expected of them at school to what was expected at university.

The syllabus for the new Legal Method course, however, could focus more heavily on language and writing skills, case and statute skills and research skills. The assessment regime incorporated a variety of tasks, including the writing of case notes, language exercises, exercises designed to test legal writing and citation skills, library and research exercises, presentational skills (including debates and moots) and employability skills. All these various tasks were then incorporated in a final Portfolio. For present purposes, this article focuses on one aspect of the Portfolio. This relates to a modified form of points accreditation, borrowed from systems of continuing professional development (CPD) with which the legal profession is currently familiar.

All students were required to acquire a minimum of 60 accredited points over the course of the academic year. The underlying rationale was to introduce an element of experiential learning into the first year. Experiential learning offers a paradigm mechanism for a direct student participation in the workings of the Law and offers an ideal context in which the Law student’s personal development is allied with a deeper understanding of, and engagement with, abstract concepts and principles.

Experiential learning has the following important elements: it possesses a quality of personal involvement and stimulates the feelings and cognitive aspects of personality; it is self-initiated, in that the impetus to learn comes from within; it is pervasive and can affect the learner’s entire personality; it is evaluated by the learner as satisfying a need; its essence is ‘meaning’.

Court visits were designed to be an essential part of the scheme for points accreditation. Students were expected to attend a range of courts and to write a short court attendance note.

Students are also encouraged to attend guest lectures in order to obtain accredited points.

One key aim of the points accreditation system adopted here, and its assessment regime, was to merge two aspects of the student learning experience: the transition from school to higher education and nurturing student autonomy. Hussey and Smith discuss the transitional changes experienced by students managing the awkward shift from school to higher education as follows:

These are large, complex transformations: they are made up of an array of lesser changes – in attitudes and values as well as in knowledge, beliefs, understandings and skills – and may nest among even larger transitions. A transition is a significant change in a student’s life, self-concept and learning: a shift from one state of understanding, development and maturity to another. They are judged of real significance by the students themselves, the educators, or other interested parties ... Transitions occur throughout the student’s educational experience, examples include the transition from school to higher education, leaving home and becoming an independent adult; from being a reluctant student to being keen and committed or vice versa. A student may undergo a transition from a passive and dependent learner to active and autonomous learner; from being an ill-informed novice to being a skilled and knowledgeable authority.

In allowing students the option to pursue their own choice of learning activity, while requiring a reflection of that activity’s contribution to their wider learning, the authors are confident that the system of points based accreditation fulfils the aim of integrating transitional change and autonomy.

Assessment of learning and research skills

This part of the Legal Method course, dealing with learning and research skills, was taught by the Law Librarian, who was also responsible for the assessment of this component. The teaching was designed around four seminars throughout the academic year, dealing with the following subject areas: (1) Familiarity with and searching the Library catalogue; (2) Searching the law databases for cases and statutes; (3) Searching for journal articles; and (4) Finding and evaluating legal materials on the free internet.

Each seminar is linked to an online assessment. The assessment takes a combination of WebCT tools including quizzes, self-tests and discussion lists, as well as discussion and hands-on searching.

Alternative forms of assessment were also permitted. This involved an element of peer-assessment provided by the Lexis Student Associate and the Westlaw Student Representative, under the supervision of the Law Librarian.

The students keep online learning logs on the WebCT course where they reflect on their progress.

The web page assignment in Land Law

Land Law is traditionally regarded by both lecturers and students as a dry, black-letter and perhaps rather pompous subject.

One strategy adopted on the Land Law course at the University of Greenwich is to engage students very early in the course in a short piece of coursework which must be created as a web page and uploaded as a zip file into WebCT. The subject of the assignment is ‘What is land?’, and the students are instructed to take, or find, a photograph of an object or structure which may or may not form part of the land. They must then make an argument (in 500 words) as to whether or not their chosen object does or does not form part of the land. The web page must provide links to at least two legal sources, which take the place of references. This is an assessment set early in the course; it carries few marks (5 per cent), and is intended to bring out the creative side of the students and to engage them in the course, as well as to assess learning.

The web page assignment is received by students with a wide variety of responses. Some students, familiar with creating web pages and confident in their technical ability, are delighted. Some immediately ask to be excused from creating a web page on the grounds that they do not know how to start. Although this generates a level of anxiety, it also provides an opportunity for staff to spend time engaging with students in the very early stages of the course. Substantial reassurance is given by staff, both face-to-face and by way of assistance on the WebCT site, and a bulletin board is set up on which they can ask questions about the assignment and give each other assistance, particularly with technical matters. This encourages reciprocity and cooperation among the students from an early point in the course.

Apart from the first year that the assignment was set, the lecturer has had a bank of past web pages to show students when introducing the assignment. This demonstrates clearly to students the high expectations of the course, whilst simultaneously encouraging them that it is possible to meet those expectations. The assignment also respects diverse talents and ways of learning, as it gives more artistic or technically gifted students a rare opportunity to use their talents in the study of law.

The assignment captures study time outside the course because students have to think about the object they will choose and they must read the cases in order to consider how to apply the law to their chosen object, as well as to judge the uniqueness of their choice. Time is spent in class by the lecturer running a workshop to assist with the assignment in the week leading up to the hand-in deadline. It leads to productive learning activity because it does not require regurgitation, but rather application of the law.

The assignment does provide opportunity for interim feedback as it progresses, both on the WebCT bulletin boards and through interaction between student and lecturer informally. However, students may not value informal oral feedback, as they do not recognise it as such. Formal feedback is given when the assignment is returned by way of comments on the grading form. In addition, the best web sites are published on the WebCT site to allow others to view them, and a selection are shown during lecture time, with comments by the lecturer to indicate what is good about them.

Despite the occasional outbursts of despair, students generally reported enjoying the web page assignment, and were pleased when the resulting web pages were published on WebCT for others to see. They all agreed that they had learned a lot from it, and that they had a good sense of achievement. The interaction it produces between lecturer and students and between the students themselves gives a sense of shared enterprise and a common goal of doing well with this technical subject.

Deep legal pluralism to deep learning: an assessment regime for learning

Human Rights Law in the undergraduate curriculum

The coming into force in October 2000 of the Human Rights Act 1998, giving ‘further effect to the rights and freedoms guaranteed under the European Convention on Human Rights’, meant that the boundaries of the undergraduate Law curriculum would have to be extended. There was a growing demand not only in legal practice but in governmental and non-governmental organisations for graduates versed in Human Rights Law. Greenwich Law School’s response was to launch a third year Human Rights Law option in 2001 for those who might wish to specialise in this field.

The Human Rights Law option ‘teaching’ curriculum and methodology is informed by the jurisprudence and pedagogy of the Southern African Women’s Law (SAWL) movement. Its authors, faced with problems created by conflicts between colonial and customary law and between these recognised laws and actual local custom and practice, adapted the methodology of Women’s Law to analyse the content and effectiveness of particular laws in specific areas relating to Family and Human Rights Law and, in so doing, developed identifiable new principles about the nature of law: firstly, that custom and practices, though traditionally not recognised as law, are a form of law; secondly, that ‘the law can be properly evaluated or appraised only if, in addition to understanding the intentions and the rationale behind the law, one also has an insight into the consequences of the law on individuals’ and, thirdly, that students should be equipped with the methodology to identify the role played by customs and practices in whatever field they may be working.

The Law teachers in the movement devised a one year postgraduate Women’s Law Diploma course at the University of Zimbabwe for government officials, civil servants and lawyers involved in legal reforms in Human Rights from countries all over Africa. The course put into practice the SAWL contention that the way to understand the law, and therefore to suggest satisfactory ways of providing lasting solutions to problems, such as the spread of AIDS or the maintenance of widows, is by means of giving legal advice and then monitoring the efficacy of that advice when applied – or, as is often the case, not applied – by the recipient. Such observations then provide evidence of the degree to which the ‘black-letter’ law is successful and the foundations for a reform ‘program’. These teaching methods resulted in deep learning at its best heightening the student’s awareness of how law operates or often fails to do so.

The provision of an opportunity for the student to conduct his/her own investigation into the operation of one area of Human Rights Law in practice and to contribute to an in-house publication on current issues in human rights or, if good enough, to submit to a journal for publication was adopted as a vehicle suited to the UK undergraduate curriculum to achieve deep learning in Human Rights Law.

The production of a high quality journal article fit for publication is the ultimate goal of the course for each student. The ‘reality’ of that goal and the opportunity it offers to the student to pursue a human rights issue of interest, often one which affects the student personally, almost invariably inspires a strong commitment in the student whatever his or her ability, which is sustained throughout the course.

This coursework assessment has three components: a completed journal article (80 per cent); an online article preparation journal (10 per cent) and continuous assessment for the completion of all stages of article production (10 per cent).

The WebCT journal topic discussion facility is used for the student’s journal. Access to it is open to the student and the tutor only. Both can post entries. For each preparation activity students are required to make a brief entry commenting on his/her preparation activity and noting down what further action he/she needs to take as a result of what he/she has found in that session.

The continuous assessment element for completion of all stages of the article programme is designed to ensure that students engage fully in the production process since it is involvement in these stages that will provide the skills and understanding for students to become competent and confident Human Rights Law specialists. There are five key stages: (1) Literature search and determination of article working title; (2) Proposal; (3) Presentation; (4) Submission of draft article to tutor for editing; and (5) Proof-reading and Editing Workshop.

Though the presentation and the proposal could have been formally assessed, the prime learning outcomes of these stages should be the acquisition of new skills and an increase in confidence which will facilitate the student in achieving the final goal of an article fit for publication. Excluding all these stages from the assessment regime provides the tutor with a free hand to give detailed advice and, if necessary, to ensure that each student produces ‘public’ material of a good quality.


The nature of assessment profoundly affects what, and how, students learn: assessment drives learning. The assessment strategies set out in this article, in their departure from the traditional examination-and-coursework model, have sought primarily to improve and foster effective learning which is long-term and continuing in nature, and whose impact will, hopefully, permeate future learning.

This is not to say that the authors do not recognise certain limitations. The chief of these is long-term research into the effectiveness of the assessment strategies chosen. This would require follow-up research which, at present, is not viable as well as being subject to a number of insurmountable variables. The authors hope, nonetheless, that this research will be feasible in the future.

McDowell observes that ‘Assessment is clearly under challenge in contemporary society with competing theories, diverse practices and many conflicting demands coming from a wide range of stakeholders’. The design of innovative assessment techniques must, of necessity, rise to a number of challenges. These include: (1) Ensuring academic rigour, as well as the ability to withstand external scrutiny; (2) Meeting student expectation in terms of feedback that is timely and appropriate; and (3) Choice of assessment strategies that are ‘fit for purpose’.

The authors are confident that these challenges have been met. In particular the authors are confident that the assessment strategies they have chosen assess precisely what should be assessed. Elton and Laurillard make the apt observation that ‘the quickest way to change student learning is to change the assessment system’.

It is the authors’, albeit preliminary, findings that the assessment methods described here have had the effect they intended on the nature of the students’ learning experience.

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