Coper, M --- "Recent developments in Australian legal education" [2011] LegEdDig 38; (2011) 19(3) Legal Education Digest 22

• Recent developments in Australian legal education

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Recent developments in Australian legal education

M Coper

Australian National University College of Law Research Paper No. 10-85, 2010, pp 1-13

First of all, may I congratulate Chuo University on its 125^th anniversary. In the modern age, a time of rapid and relentless change, institutions of such longevity are rare. Begun in 1885 as the English Law School – Igirisu Horitsu Gakko – by 18 young attorneys and scholars led by Rokuichiro Masujima, the establishment of what is now Chuo University followed the establishment of a number of other private law schools, all responding to a perceived need to increase the legal training and professionalism of Japan’s judges and prosecutors. Given the close relationship between Japan and England at the time (despite the role of US Commodore Perry in the opening up of Japan to the world some 30 years earlier), the founders of Chuo University looked particularly to English law, and were evidently impressed by the ‘practical application’ and ‘flexibility’ of the precedent-based analogical reasoning of the common law. Historians have tended to characterise the spread of English law throughout the world in the 19^th century as largely the result of colonial imposition, as in the case of India, or colonial settlement, as in the case of Australia, but the example of the founding of Chuo University reminds us that it sometimes happened by choice.

Ties between Australia and Japan in the field of legal education are strong, particularly in relation to Chuo University – for example, ANU and Chuo have a long-standing and flourishing staff exchange program, and the late lamented Professor Mal Smith, of Melbourne University and then of Chuo University, was the first Australian, as far as I am aware, to hold a full-time faculty position and teach Japanese law in Japan – but the paths of legal education have been different in each country and deserve explication.

Had anyone drawn comparisons in 1885, no doubt the differences would have been as evident then as they are now. In Japan, the majority of judges and prosecutors were not legally trained. Such training as did exist was given in French law through a long eight-year course provided by the Department of Justice, half of which was language training, and it was the poor quality and conduct of the lawyers – the daigennin – that stimulated the growth of the private law schools. Australia in 1885 was 16 years away from becoming a nation; it was a collection of six British colonies, which were just beginning to take seriously the idea of federation (and were in part spurred on by the threat of increased French and German activity in the Pacific).

Since 1885, Australia, Japan, and indeed the entire world have obviously changed in multiple ways, almost beyond recognition, especially with the growth of communications, technology, and economic interdependence. This change has not necessarily been linear or universally for the better, and should not obscure or diminish past human achievements of time and place – many, for example, would see the late 19^th century as a pinnacle of romanticism in Western music and art. Moreover, in general terms, many of our aspirations will have remained unchanged – our aspiration for freedom and human rights, for example, was captured as perfectly in 1885 by the symbolism of the Statue of Liberty arriving in New York Harbour as it could be by any contemporary image today. But the world has changed, and with it the world of legal education.

Only three Australian law schools existed in 1885 – those at the Universities of Melbourne, Sydney, and Adelaide. Today there are 32 law schools in Australia, more than ten times as many as in 1885. Given Australia’s population of around 22 million people, on a per capita basis this is more than twice as many law schools as in the United States (200 accredited law schools for around 310 million people) and around three times as many as in China (620 law schools for around 1.3 billion people). The Australian ratio is about the same as that in Japan if one adds together the 90 or so undergraduate law faculties in Japan to the 74 graduate law schools (totalling 164 institutions for around 127 million people), but, as in the case of the US, is more than double if one confines the Japanese figure to the graduate law schools.

Many Australian law graduates do not enter mainstream legal practice, so the ratio of practising lawyers to population is a different calculation from the ratio of law graduates to population.

The relatively high number of law schools in Australia reflects strong growth generally in the tertiary education sector; high demand for law study from prospective students; and relatively light-handed government regulation, or at least the absence of constraints on the establishment of new law schools other than compliance with accreditation requirements.

The high demand from prospective students appears to come from multiple sources and does not necessarily reflect good information about what lawyers do. Some students are very idealistic and want to use the law (though with little idea of how) to make the world a better place, some are more materially focused on their own personal careers, and many have mixed motives; but whether they get their information from over-romanticised American television shows about trial lawyers, or from family and friends, or from careful research, there is no shortage of applicants.

Many understand that the generic skills they will acquire in a legal education will make them employable across a wide range of occupations beyond mainstream legal practice, in the civil service, in corporations, in industry, and so on. My law school is currently doing some work in tracking Australian law graduate career destinations, but our general impression, based on past studies, is that only about half of the students entering law school do so with a clear intention to practise law, though significantly more than that finish up in law-related jobs.

Of course, the very shift from apprenticeship to university-based legal education was always likely to create tensions between theory and practice, between general education and professional education, and between knowledge and skills. However, the practical and professional focus persisted in Australia for a long time, even after the universities got into the act. Until the growth in student numbers made office-based practical training unsustainable, law students would typically attend university lectures in the early morning and late evening, but work during the day in a law office as an ‘articled clerk’. Even the lectures were typically given, not by full-time professors and scholars, but by practising lawyers before and after their working day. It has been only in the last three decades or so that Australian law schools have become populated predominantly by full-time law teachers, whose aspiration also to undertake research and produce serious scholarship has contributed significantly to development of the study of law as a robust intellectual discipline in its own right, capable of taking its place amongst the more established disciplines of the humanities and social sciences such as history, philosophy, economics, psychology, political science, and so on.

In order not to allow the growth of university-based legal education to result in the theoretical aspect overwhelming the practical, there has been a strong resurgence of interest in clinical legal education, or, to state the matter in more general terms, experiential hands-on learning. Interestingly, this is in a way a reversion to the apprenticeship approach of earlier times, though within a more professional and ordered context and learning environment. The chief obstacle is the additional cost of clinical education given the need for lower student/staff ratios.

One factor that has allowed Australian law schools to focus on the academic study of law is that, after graduation, a further period of practical legal training is required for admission to legal practice. Since the demise of the articled clerk system, this practical legal training has been provided both by some law schools and some independent organisations. Law school graduates who have completed their practical training, and who are certified to be of sufficient moral character, may then be admitted to practice, with no further constraint other than the imperative of finding a job and, in the initial years of practice, at least as a solicitor, working under the supervision of another lawyer. Judges and prosecutors are not separately trained from the beginning of their careers, but gravitate to those positions after accumulating experience in legal practice.

As to the tension between law in isolation and law in context, a distinctive element of Australian legal education in recent times has been the common pattern of study in which, after graduation from high school, students undertake a law degree (the LLB) and a non-law degree simultaneously, whether the non-law degree be in arts, economics, commerce, science, or some other field of study (this twinning arrangement is sometimes referred to as a ‘combined degree’ program). Typically, on this approach, five years of full-time study, incorporating the equivalent of three years of law study, will result in the award of two degrees. In this respect, the combined degree approach may achieve a similar outcome to the graduate-entry approach of the JD: the JD student is deemed to have acquired, through his or her prior degree, the contextual background for law that the LLB student is acquiring contemporaneously. The JD student is a more mature entrant to the study of law than the LLB student – but is not necessarily better equipped than the LLB student at the end of that study.

The pattern or structure of law study in Australia is one thing; the content of the law curriculum is another. Here, there have been a number of noticeable shifts over time. But one change really stands out, and that is the response of the law curriculum in Australia to globalisation. Consequently, the curriculum is exhibiting increasingly more international and comparative material.

The other change that stands out is the shift from a predominantly knowledge-based curriculum to one that seeks to balance the acquisition of knowledge, skills, and values. I have already mentioned the serious interest in clinical legal education. But the emphasis on skills in the modern Australian law curriculum goes well beyond this, to a more general concern to develop the skills of research, analysis, independent and critical thought, problem-solving, communication, advocacy, negotiation, and so on.

Even more controversial is the inculcation of professional and ethical values, an issue that was addressed recently in the US in the Carnegie Report. In Australia, this is an issue that is beginning to be taken very seriously, but much work needs to be done on both the theory and practice of the effective transmission and acquisition of values. I am talking here not just of lawyer/client ethical duties, but of the broader notion of professional responsibility, encompassing an ethos of public service, whether in the form of pro bono practice, contribution to law reform, or any of the myriad of ways in which lawyers can use their specialised knowledge and skill altruistically in the service of society.

One could probably find general agreement in Australia that actively engaged students learn best, but disagreement on what methods best promote that active engagement. To some, the formal lecture is a good opportunity for a clear and well-structured analysis, synthesis and presentation of complicated material not otherwise easily accessible, which gives the student a useful framework for understanding the law. To others, the formal lecture is the passive transmission of knowledge by a remote authority figure, which loses the interest of the students and inhibits their critical capacities. To some, the Socratic method compels the interest and intellectual engagement of the students, treats the students more democratically as participants in the learning process, and promotes the skills of argumentation. To others, the Socratic method can be just as authoritarian as, indeed even more overbearing than, the formal lecture, and inhibit student learning through humiliation. To some, distance learning is remote, isolating, and the antithesis of student engagement. To others, one-on-one online interaction between teacher and student, and real-time electronic communication amongst the students, produces more engagement than the passivity and one-way communication of a formal lecture.

There are no easy or dogmatic answers here, but we are in Australia beginning to listen to the educational experts rather than, as has been the tradition, simply teach intuitively according to the dictates of our hunches, our personality and predisposition, and our experimentation, often by trial and error. We would not, I think, want to lose entirely our intuition in judging how best to connect our expertise and enthusiasm with the learning needs and desires of the students, but the educational experts tell us that there is a wide diversity of learning styles, methods and preferences amongst our students, and imposing any single teaching method is bound to be less than optimal.

It is worth noting in passing that Australian law schools today are complex and diverse institutions, many of which do much more than teach the LLB or JD, that is, the primary degrees that qualify their holders for admission to legal practice. Many law schools have extensive postgraduate programs, both coursework and research, which attract students wishing to broaden or deepen their knowledge of the law, to specialise, to upskill and make themselves more marketable, or just to pursue an intellectual interest.

Historically, Australian universities have been subject to audit and quality assurance certification on a regular basis. This system is currently being revamped, but has ensured that Australian law schools, which are all embedded in universities, are themselves part of wider quality-assured institutions. Professional accreditation for the law schools – that is, recognition of their graduates for the purpose of admission to legal practice – is an additional process, and has been a matter for the admitting authority, usually the Supreme Court, in each state.

A few years ago, the Council of Australian Law Deans (CALD), of which I was then Chair, decided that Australian law schools should have a more comprehensive set of standards. There was no concern that the performance of the law schools was below par; rather, it was felt important to articulate common standards against which we could all aspire to raise quality as high as possible; to compete internationally and assure the rest of the world of the quality of Australian law schools; and to be the architects of our own aspirations rather than have standards imposed exclusively by government or the profession.

Consequently, a set of standards, ambitiously covering not only curriculum and legal education but also matters like the law school mission, staffing, library, resources, governance, management, and evaluation, was adopted in 2009. A mechanism for implementation was also adopted, and the inaugural Law School Standards Committee is currently in the process of being appointed.

Ultimately, the ability of Australian law schools to achieve their aspirations in relation to the highest possible standards will depend on how well they are funded. All but three of Australia’s 32 law schools are public institutions, yet the proportion of funding that comes from the public purse has become very small as compared with the proportion raised by way of student fees, especially for those law schools with large fee-paying postgraduate programs or large numbers of international students. However, access to private fees does not guarantee good or even adequate law school funding; the student contribution to the cost of an undergraduate place is capped, and capped at less than full cost, and some Vice Chancellors are inclined to withhold a large proportion of all student fees in the name of university overheads. This means that some law schools will have better access to resources than others.

The present Chair of CALD and I have argued strongly for greater public funding, in recognition of legal education as a public good and of the value that lawyers add to society. However, while the demand for legal education remains so strong, even when it is paid for mainly out of the pockets of the students, there is no compelling economic need for the government to inject public funds. Unfortunately, this will make our aspirations of quality harder to achieve, because, for example, of the higher cost of innovations like clinical legal education and other forms of experiential learning, and of supporting opportunities for overseas exchange programs, participation in international student competitions, and the like.

In Australia, we appear to have reached a situation in which public investment is so low that the government (whether on the right or the left of politics) is willing to let the market play out unconstrained. In Japan, public investment in the training of lawyers who pass the Bar Examination may inhibit such a hands-off approach. In any event, there does seem to be a serious mismatch in Japan right now between the restricted flow of lawyers into the profession and the permitted establishment of the large number of professional law schools in 2004 and 2005 (as compared, say, with the more restrained approach in Korea). Moreover, the Japanese situation is not assisted or alleviated by the argument that has some traction in Australia, that law graduates may usefully deploy their generic legal skills more widely in other, non-legal occupations; this may well apply to the graduates of the Japanese law faculties, but given the existence of those faculties, the law schools must inevitably be seen as having a much sharper focus on the production of graduates for legal practice.

Finally, I just want to mention the issues surrounding the development of the JD degree in Australia. In some ways, this connects with the discussion above, for if the JD develops in parallel with, rather than supersedes, the LLB, there might be some similarities with the situation in Japan. However, the situation in Australia is perhaps more complicated, as the LLB also qualifies its graduates for admission to legal practice, and of course, as noted above, the level of public investment is low.

Nearly half of the Australian law schools have introduced the graduate-entry JD. For some, it has replaced or will replace the LLB. For others, it is in addition to the LLB. Some charge full fees, some have the same ‘Commonwealth Supported Places’ as the LLB (a small government contribution and a larger, but capped, student contribution), and some have a combination of both. Overlaid on top of all of this, a current government enquiry threatens to classify the JD as undergraduate rather than postgraduate, which, on current arrangements, would preclude the charging of full fees, and thus destroy those JD programs so based.

At the ANU, our chief motivation in introducing the JD was to devise a program that connected better with the distinctive attributes and additional maturity that graduates bring to their study of law, as compared with the younger cohort of students coming straight from secondary school. It should also be said that Australian law schools generally have been attracted to the JD because of the full-fee revenue stream it can produce. This is not an end in itself, and most of my fellow Deans deplore the low level of public funding that produces the need to go down the path of charging private fees. It is rather a necessity to support quality legal education, in a situation in which the combined government and capped student contribution to the cost of an LLB place is well under the true cost.

Having said that, it is a strange situation we now find ourselves in, in which most Australian law schools that have introduced the JD degree are running that program as well as, rather than instead of, the LLB. Melbourne Law School offers, and the University of Western Australia will offer, only the JD, on the American model, and that shift from undergraduate to graduate education for professional legal training is entirely understandable and familiar. But for the Australian law schools offering both the JD and the LLB – with, unlike the Japanese situation, both qualifying their graduates for legal practice – it is a delicate juggling act, that may or may not prove to be sustainable. The dilemma is that the two degrees must be differentiated if their separate existence is to be justified, yet they must also have a certain commonality if both are to satisfy professional accreditation requirements. And the LLB students are anxious that the prestige of and regard for the LLB should not be diminished by the growth of the JD. We are endeavouring at the ANU to give the two degrees ‘parity of esteem’, but how this might play out in the future is uncertain.

Putting aside the current volatility of the formal structures and the uncertain future of the JD, I am optimistic that Australian legal education is making good progress on two key propositions that are central to its future development: first, that legal education should embrace internationalisation and develop a more global concept of the unity of lawyers’ work, and, secondly, that we are educating our lawyers not merely to be good technical lawyers who are excellent and ethical exponents of the lawyers’ craft, but also to be active in using their knowledge and skills to promote law reform and social justice, to be leaders in their communities, and to aspire to a life of public service, in the best traditions of membership of an honourable profession.

Chuo University began 125 years ago as the English Law School, but soon contributed to the development of Japanese law and today is one of Japan’s leading law schools. English law dominated the Australian landscape 125 years ago, but as Australia matured as a nation, home-grown Australian law displaced English law, and Australian scholars from the 1970s on began to produce books on Australian law to reduce reliance on the English texts. The wheel is still turning, as we pay more attention today in both countries to international developments and global perspectives.