Huggins, A et al --- "Implementing the self-management threshold learning outcome for law: some intentional design strategies from the current curriculum toolbox" [2012] LegEdDig 24; (2012) 20(2) Legal Education Digest 27

• Implementing the self-management threshold learning outcome for law: some intentional design strategies from the current curriculum toolbox

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Implementing the self-management threshold learning outcome for law: some intentional design strategies from the current curriculum toolbox

A Huggins, S Kift and R Field

Legal Education Review, Vol. 21, No. 2, 2011, pp 183-216

There is a growing awareness of the high levels of psychological distress being experienced by law students and the practising profession in Australia. In this context, a Threshold Learning Outcome (TLO) on self-management has been included in the six TLOs recently articulated as minimum learning outcomes for all Australian graduates of the Bachelor of Laws degree (LLB). The TLOs have been endorsed by the Council of Australian Law Deans (CALD) and have received broad support from members of the judiciary and practising profession, representative bodies of the legal profession, law students and recent graduates, Legal Services Commissioners and the Law Admissions Consultative Committee.

TLO 6 ‘self-management’ states that:

Graduates of the Bachelor of Laws will be able to

a. learn and work independently, and

b. reflect on and assess their own capabilities and performance, and make use of feedback as appropriate, to support personal and professional development.

Two drivers for reform are particularly pertinent to understanding the development and significance of the TLOs for the discipline of law: the establishment of an independent quality and assurance agency for the Australian higher education sector; and a shift towards universities demonstrating standards-based outputs rather than inputs. As recommended by the Bradley Review, the Australian Government is currently developing a new Higher Education Quality and Regulatory Framework, which includes the establishment of the Tertiary Education Quality and Standards Agency (TEQSA).

Throughout 2010, Discipline Scholars, representing a range of broad discipline areas, including law, consulted extensively with diverse stakeholders to inform the development of the TLOs. The drafting process was also assisted by international experts and the work of similar projects both within and outside Australia. The final TLOs articulated for the LLB are set out in the Bachelor of Laws Learning and Teaching Academic Standards Statement (‘Standards Statement’) under the following six headings: (1) knowledge; (2) ethics and professional responsibility; (3) thinking skills; (4) research skills; (5) communication and collaboration; and (6) self-management.

In November 2010, CALD endorsed the Standards Statement as ‘an appropriate statement of the Threshold Learning Outcomes that are required of Bachelor of Law graduates from any Australian university’.

Recent empirical Australian studies highlight the elevated levels of psychological distress experienced by law students. The most comprehensive of these is a 2009 study by the Brain & Mind Research Institute which conducted a cross-sectional survey of 741 students from 13 Australian universities, 924 solicitors and 756 barristers. These Australian studies, which reflect well-documented trends amongst American law students and legal professionals, highlight that psychological wellbeing is a significant issue requiring prompt action from both law schools and legal employers.

The recent Australian research on the incidence, putative causes and onset of law students’ psychological distress detailed above adds weight to the importance of learning, teaching and assessing self-management in law schools.

TLO 6 emphasises the important place of self-management skills in legal curricula, and it responds to the ALRC’s recommendation that legal education be re-oriented around ‘what lawyers need to be able to do’.

Student engagement is increasingly understood as a critical issue for the overall quality of higher education in Australia and internationally. This is because high quality student learning, and deep learning outcomes, are made possible by curriculum design that engages students, and provides supportive, integrated and coordinated learning environments.

The importance of promoting student engagement has been established as critical in supporting student transition to the first year of legal education, and as one component of Kift’s transition pedagogy. It has also been established as a significant curriculum design principle for the final year of law and for an effective capstone experience.

Biggs identifies motivation, climate and learning activity as three categories of design orientation strategies that are central to achieving student engagement. In the parts below, these strategies are discussed as providing foundational curriculum design support for the learning, teaching and assessment of TLO 6 on self-management.

Legal curricula must be grounded in learning, teaching and assessment approaches that motivate students to learn if deep, effective and engaged learning is to take place around self-management knowledge, skills and attitudes. Four key areas of focus in curriculum design can assist with motivating student learning for acquisition of the self-management TLO.

First, it is important to engage the interest of students in the content aspect of legal curricula that connects with independent learning, reflection on their capabilities and performance, and their use of feedback.

Second, students will be motivated to learn and acquire the self-management TLO where law schools establish communities of learning practice that explicitly recognise the importance of independent learning, the process of reflection on students’ capabilities and performance, and the constructive use of feedback in legal education.

Third, students can be motivated to learn and acquire the self-management TLO by harnessing student engagement with assessment, and by using assessment for learning.

Fourth, an important way to motivate student learning and acquisition of the self-management TLO is to capitalise on effective feedback techniques. Effective feedback involves providing quality and timely feedback to students, both formally and informally.

The second category of design orientation offered by Biggs as central to achieving student engagement is providing a positive learning climate for student engagement. This category connects with Ramsden’s fifth principle of effective teaching which calls for the creation of a learning environment that encourages independence, control and active engagement.

Providing an engaged learning climate will address student feelings of isolation, lack of support, or an absence of a sense of belonging or institutional fit, simultaneously enhancing student learning for acquisition of the self-management TLO and fostering law students’ psychological wellbeing.

Biggs’ third category of curriculum design orientation that is central to achieving student engagement with the self-management TLO involves promoting learning activity. Biggs identifies ‘learner activity and interacting with others’ as two critical characteristics of rich, and therefore engaging, learning and teaching environments.

Actively engaging students in their learning is part of Ramsden’s fifth principle of effective teaching. In the learning and teaching of selfmanagement, a focus on discursive, active and collaborative learning aimed at engaging students with ‘the content of learning tasks’ in a way that enables them ‘to reach understanding’ is important. Engaging learning activities can be teacher-directed, peer-directed or self-directed.

Significantly, where legal education environments provide autonomy support, law students have an opportunity to articulate their points of view, take responsibility for the choices they make and understand and integrate the rationale behind the aspects of their legal education over which they have no control. The following discussion outlines how different aspects of curriculum design can be harnessed to support law students’ autonomy and allow them scope to develop and exercise their self-management skills.

Assessment that is designed to provide law students with a degree of choice within the inherent constraints of a formal legal education aligns with part (a) of the self-management TLO by promoting law students’ abilities to ‘learn and work independently’.

One of the ways in which assessment can encourage law students’ independent learning and autonomy is by providing student choice around some aspects of their assessment tasks. When students are given choices about their assessment, they may experience a sense of ‘empowerment’ with regard to their learning at university. Of course, a balance must be struck between giving students some autonomy in relation to assessment and feedback, and teacher time and resource constraints. However, despite workload, resourcing and institutional constraints, whenever possible, students should be allowed some leeway to shape their assessment in ways that are meaningful to them. This approach can enhance student engagement and encourage independent learning approaches, while allowing students to cultivate their self-management capacities.

It is not always possible or desirable for students to have choice regarding some aspects of their law degree, including required readings and some assessment tasks. Regardless of whether students have some say in their assessment, curriculum design can be used to support student autonomy by clearly setting out what is expected of students in assessment items and providing clear feedback and rationales for marks awarded. Assessment that is clear about what is expected of students, in terms of academic language, conventions and standards for tertiary legal education, allows students to understand what is required of them, and to self-manage their time and study approaches accordingly. Significantly, such assessment practices enhance students’ perceptions of autonomy support, foster their self-management capacities, and facilitate their academic achievement.

Similarly, effective feedback practices can promote law students’ ability to self-manage in future assessment tasks. Effective feedback promotes students’ ability to ‘reflect on and assess their own capabilities and performance’ and to ‘make use of feedback as appropriate’ as required under the self-management TLO.

Creating opportunities for law students to provide feedback on the learning and teaching environment throughout each subject allows students to exercise and develop their self-management capacities and reflects law teachers’ willingness to consider their students’ perspectives. While many universities require students to complete formal teacher evaluations at the end of a subject, teachers can also elicit informal, anonymous feedback once or more throughout a semester. When put into place, however, this simple process may simultaneously provide students with an opportunity to articulate their viewpoints and demonstrate their ability to ‘reflect on and assess their own capabilities and performance’. It may also enhance students’ sense of agency and empowerment in their learning environment, and reinforce that learning is a shared responsibility between teaching staff and students.

Enhancing student interest in, and engagement with, program content by designing authentic assessment tasks is another avenue through which law teachers can take into account diverse student perspectives and promote self-management of their learning and careers.

Law students’ sense of autonomy, purpose and motivation in relation to their law degrees and future careers may be enhanced by assessment tasks that introduce them to the types of issues faced in the real world of legal practice. Exposed to some of the realities of legal practice, law students are better placed to make informed, volitional choices about their law studies and careers, including choices about electives and graduate opportunities. Significantly, this supports self-management by providing experiences that can inform students’ autonomous and authentic decision-making.

It has been said that ‘the use of reflection in law school teaching acts as both an antidote to the dissociative elements of the law school experience and as a step toward incorporation of the intellectual and the emotional; it is a step toward integration of the whole person into the learning process itself.’ To date, however, there has been relatively little attention paid in the legal education literature to ‘dealing specifically with (reflective practice)’. When reflective practice in law teaching has been considered, it has usually been in the context of clinical legal education.

Although reflective practice may not be commonly harnessed in legal education, the process offers great potential for supporting learning and teaching in the context of TLO 6.

Reflective practice has been identified as a useful tool for encouraging students to become more conscious of their own approaches to learning, to become life-long learners, and to learn self-direction.

In this context, it is also noteworthy that reflective practice can support the development of students’ critical thinking skills. Such skills can also assist with the construction of the students’ nascent legal professional identity. For law students, developing such an identity is important to self-management because it provides them with a sense of meaning and purpose to their studies. The capacity to reflect purposefully on their capabilities and performance may therefore assist students to achieve a sense of fit and place, not only in the tertiary legal education learning environment, but also more broadly in the context of their perspectives on the legal profession itself.

There are a number of learning and teaching activities and approaches that can assist students to develop reflective practice skills. These include self and peer assessment, problem-based learning, reflective essays and journals, and personal development portfolios or ePortfolios. However, for reflective practice to be used as a tool to support student acquisition of self-management skills, it is not appropriate or sufficient simply to adopt one of these strategies in an ad hoc way. Rather, a structured and integrated, whole-of-curriculum, design approach must underpin the inculcation of reflective activities. Below, we propose an approach for using reflective practice to support student acquisition of TLO 6 which is consistent with the conceptual framework of engagement articulated above, and which also addresses the mechanics of the reflective process.

A positive, structured approach to the learning and teaching of reflective practice involves four steps: first, providing students with instruction on reflection; second, intervening in the students’ reflective practice by creating structures and protocols to help them to reflect; third, using criterion-referenced assessment to enhance the design of reflective activities; and fourth, providing feedback on the students’ reflections.

The first step of providing instruction on reflection recognises that, for effective learning to occur through reflective activities, the skills to engage in reflective practice must be explicitly taught. It cannot be assumed that students will know how to ‘do’ reflection. Before law students are asked to engage in reflective practice, it is therefore critical to ensure that they are instructed in how to do so.

The second step of a structured approach to using reflective practice to support student acquisition of TLO 6 involves intervening in the students’ reflective practice by creating structures and protocols to guide their reflections. To achieve this, examples should be provided that demonstrate good and poor reflective writing in the context of self-management.

Step three of a structured approach to learning and teaching reflective practice is developing a well-written CRA rubric to enhance the intentional design process. Examples of good practice in developing reflective practice assessment and CRAs have been collated and are available through the ALTC priority project, ‘Developing Reflective Approaches to Writing’.

Once students have engaged in a reflective exercise, it is critical that they receive appropriate levels of feedback on their efforts. Step four of a structured approach to the learning and teaching of reflective practice therefore concerns the provision of feedback. Constructive feedback, always critical to student learning, is particularly central to supporting student learning of self-management skills.

In order to implement this stepped approach in a coherent and cohesive manner, and to enable student achievement of robust program learning outcomes on graduation, a whole-of-curriculum approach should be adopted for integrating reflective practice to support graduation-ready acquisition of the self-management TLO. Harnessing the structured process discussed above, the remainder of this Part will suggest an intentional approach to developing reflective practice in the foundational context of a first-year subject; a critical plank on which a whole-of-curriculum approach may then be built in an integrated and incremental fashion for assurance of students’ program learning outcomes.

Once a suitable first-year subject has been identified in a law school’s curriculum map as the appropriate locus for embedding reflective practice at the introductory level of developmental sequencing, students should be provided with early and explicit instruction on the reflective process and then engage in an initial reflective activity. This activity could involve them thinking about what they already know regarding a particular subject area of the law and its potential professional application. In this first reflective activity, students might be asked to reflect, not only on their own understanding of the particular legal area (or lack of such an understanding), but also on how they see their possible future practice in, or engagement with, that area fitting with their own developing sense of professional legal identity.

This first reflective exercise can be used to acknowledge the importance of students’ own values and personal beliefs in connection with the more ‘technical rational’ content of the legal curriculum. Further, it can positively involve students in recognising what they already know ‘well enough or whether they need to learn more in order to understand a particular aspect of the law’. This provides students with an early opportunity to self-assess and take responsibility for the development of their own capabilities and performance as required by TLO 6.