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Watson, P --- "Leading change in legal education: interesting ideas for interesting times" [2013] LegEdDig 25; (2013) 21(2) Legal Education Digest 33


Leading change in legal education: interesting ideas for interesting times

P Watson

Legal Education Review, Vol. 22, No. 2, 2012, pp 199-231

Law schools generally appear to be engaging with curriculum redesign and renewal, not least because of externally imposed pressures in the form of Standards, Australian Qualifications Framework (AQF) requirements, Threshold Learning Outcomes (TLOs), and accreditation.

Good curriculum work must be guided by a clear vision, whether curriculum is understood in its broadest sense as a whole-of-institution transformative approach, meaning the ‘academic and social organizing device’, and the ‘glue that holds knowledge and the broader student experience together’, or in its narrower, more usual sense of the formal taught program of study. For convenience, the terms ‘broad curriculum’ and ‘taught curriculum’ are used to differentiate between these.

Achieving reform in the second ‘taught curriculum’ sense will be challenge enough, encompassing perhaps a five-year transition, already partly realised for most, to the new order as defined by Standards, AQF and Threshold Learning Outcomes. Designing ongoing review cycles and quality assurance processes will be the next challenge. For those who choose to stop here, the structural vision is already in place, and is likely to be achieved with the stimulus of top-down mandated change. One word of caution, however: top-down change needs grass roots input as well to avoid becoming merely ‘window dressing’. To be truly effective, outcomes and standards require communities of teachers to make sense of them together (take ownership), in relation to the particular nature of their students.

In response to the multiplicity of influential reports urging reform over the last two decades, both in Australia and abroad, change began percolating through the higher education sector, although at an uneven pace. The nature of the dissatisfaction is well known: too little emphasis on skills development, too little connection with the world of work, too strong a focus on doctrinal learning, and too much concentration on rationality and analytical thinking at the expense of moral and ethical concerns.

More recently, it has become apparent that law students are experiencing high levels of depression and poor emotional well-being that appear to be connected with their law school experience. In 2009, the Brain and Mind Research Institute (BMRI) established empirically that Australian law students were suffering disproportionately high levels of psychological distress, as compared with medical students and their age-matched non-student peers. Thirty five per cent of law students reported distress at high to very high levels. Similar concerns have been reported in the USA, where symptoms of psychological distress have been found to rise significantly in the first year of law studies, and persist throughout the degree to post-graduation.

In the new Australian environment of the Higher Education Quality and Regulatory Framework, which includes the establishment of the Tertiary Education Quality and Standards Agency (TEQSA), change is mandatory. In 2009 the Council of Australian Law Deans (CALD) published its Standards for Australian Law Schools. These were endorsed by the Law Admissions Consultative Committee (LACC), and contain a mixture of aspirational and threshold inputs and outcomes.

This was followed in 2010 by the Australian Learning and Teaching Council’s Bachelor of Laws Learning and Teaching Academic Standards Statement (the LLB LTAS Statement), articulating TLOs for Bachelor of Laws degree programs, based on award level descriptors defined in the AQF. The TLOs were endorsed by CALD in late 2010, and link with, but do not exactly replicate, the more aspirational CALD standards.

The six TLOs concern: Knowledge (encompassing the Priestley 11) (TLO 1); Ethics and professional responsibility (TLO 2); Thinking skills (TLO 3); Research skills (TLO 4); Communication and collaboration (TLO 5); and Self-management (TLO 6).

The concept of ‘Learning Organisations’ popularised by Peter Senge and other influential scholars is particularly apposite for higher education, where every individual (staff and student) is a professional learner with escalating skill levels. A Learning Organisation is one that facilitates the learning of all its members and continuously transforms itself. The basic rationale for such organisations is that in situations of rapid change, only those that are flexible, adaptive and productive will excel. For this to happen, it is argued, organisations need to ‘discover how to tap people’s commitment and capacity to learn at all levels.’

Senge views organisational leaders as designers, stewards and teachers, who are responsible for building organisations where people continually expand their capabilities to understand complexity, clarify vision, and improve shared mental models. Learning is the key characteristic as it enables the organisation to sense changes (both internal and external) and to adapt accordingly in the face of an increasingly discontinuous environment. The ‘dimension’ that distinguishes this learning from that in more traditional organisations is the mastery of five basic disciplines, which Senge identifies as: systems thinking; personal mastery; mental models; building shared vision; and team learning. The disciplines are ‘concerned with a shift of mind from seeing parts to seeing wholes, from seeing people as helpless reactors to seeing them as active participants in shaping their reality, from reacting to the present to creating the future’.

‘Mental models’ are ‘deeply ingrained assumptions, generalizations ... that influence how we understand the world and how we take action’, operating at the unconscious level to limit us to familiar ways of thinking and acting.

Senge argues that organisations need to develop the capacity to constantly bring to the surface and test mental models, promoting personal awareness and reflective skills, institutionalising regular practice with mental models, and developing a culture that promotes inquiry and challenges our thinking. Moving from personal reflective practice to organisational practice at the relatively modest level of a law school has the potential to dramatically change the culture, and open the way for fruitful discussion of other building blocks such as shared vision and team learning.

The notion of leadership as it relates to leading and embedding cultural and curriculum change in universities can be usefully extended beyond conventional positional leadership, to include ‘distributed’, ‘informal’, ‘emergent’ or ‘dispersed’ leadership, suggesting a less formalised model where the leader’s role is dissociated from the organisational hierarchy. The distributed leadership model proposes that individuals at all levels in an organisation and in all roles (not just those that are overtly ‘management’) can exert leadership influence over their colleagues and thus influence the overall leadership of the organisation.

Leadership here is regarded as a process of sense-making and direction-giving within a group, so that it is quite possible to conceive of emergent rather than predefined leadership, and to begin to break down management and doctrinal boundaries that exist in law schools between researchers, teachers, and students. Distributed leadership values working alongside, rather than replacing, formal leaders. It is characterised by: moving from a reliance on power and control to that of influence and autonomy; leadership that is collective and bottom-up, encouraging greater staff participation; and leadership that assumes a shared purpose through cycles of change.

Distributed leadership connotes distributed responsibility and accountability as well. Law schools need to develop a shared vision and sense of common purpose through a commonly owned aspirational culture, and that culture needs to be built into the structural design of the school’s activities in order to be translated into action.

This vision for legal education is therefore built around a whole-of-school culture that includes academics, students, administrators and legal practitioners as partners engaged in collaborative endeavours, including learning and teaching, research/scholarship, curriculum redesign, and community and professional outreach and engagement.

Scholarship (dissemination of research) and scholarly teaching practice would be integral, typified by ongoing inquiry, reflection, and discussion of educational design, pedagogy and curriculum knowledge.

A law school characterised by scholarly praxis well-grounded in theory and widely disseminated through publications, conference presentations, peer mentoring, active community engagement and interdisciplinary collaboration, will be perfectly positioned to embrace and embed change and innovation in a spiral of continuous renewal.

Irrespective of discipline, pedagogy should foster learners who are perpetually analytical, integrative of diverse interdisciplinary perspectives, collaborative, focused on innovation, and have a tendency towards autonomous lifelong inquiry and growth. This is essentially the ‘sustainable development’ model of learning.

Macquarie University has embedded sustainability as a ‘core value’, not only in the traditional areas of energy, water and waste, but also in learning and teaching, research and human resources. Sustainability is viewed as a ‘guiding principle within which the curriculum is developed.’ Note that the Sustainability principle specifically includes ‘commitment to continuous learning’ (lifelong learning), ‘creative and innovative’ capabilities, and ‘socially and environmentally active and responsible’ attitudes and behaviour.

Both ‘sustainability’ (the popular usage) and ‘sustainable development’ require a balance between economic, social and environmental concerns, with a strong social justice foundation. The central concepts are: integrated decision making, socio-cultural and economic equity, inclusion of all stakeholders, valuing services, and protection of endangered or weaker key elements. The Brundtland Commission Report defines sustainable development as ‘development which meets the needs of the present without compromising the ability of future generations to meet their own needs’. In that sense then, it balances wants against needs.

Learning in Law can be conceptualised in such a way that all the fundamental aspects of pedagogical praxis can be framed as ‘sustainable development of learning’ ideas.

Sustainable learning in law students mandates an inclusive partnership between learners, teachers, and employers, having regard to access and equity issues. Sustainable education aims to develop learners’ skills, abilities and motivation holistically rather than piecemeal. Student centred learning, and learning activities that promote autonomy and independence, as well as collaboration and interdependence, are key. Classic ‘law in context’ teaching elucidating the rationales for law, the greater context in which the legal order operates, and the relationship between law and society, is expanded to draw in, and on, skills from other disciplines, and though many law students are enrolled in combined degrees, much more can be done to integrate different doctrinal capabilities, such as scientific reasoning versus legal reasoning, or comparison of lawyers’ and historians’ use of evidence and primary sources. The ongoing relevance of legal professionals to problem solving, development of policy, and conflict resolution in communities depends on their ability to work collaboratively within diverse and complex groups, and to perceive, analyse and act upon multi-dimensional information.

Current enthusiasm for reform of legal curricula is potentially risky if undertaken without adequate foundation. To address this, curriculum reform must be precautionary (rather than cautious) – that is, well grounded in theory, evidence-based, and supported by learning about the learning process itself: meta-learning. The need to support learning with rigorous foundations is not limited to students: Macquarie Law School and many others have identified one of the biggest institutional challenges as being to provide resourcing for local curriculum analysis and for professional development of law teachers.

First, curriculum design questions are generated: Which core values do we want future generations to adopt? Which attitudes to learning, to work, to legal practice and law, and to ethics, social justice and personal and corporate responsibility? Which cognitive skills need to be developed to facilitate this, such as creativity, innovation and collaborative and co-operative problem solving and working? Second, the concept of stewardship involves individual, group and community learning as an ongoing process between generations, and so capacity for intergenerational interaction depends, inter alia, on whether today’s graduates have intergenerational capabilities embedded into their own education. These include: (i) lifelong habits of inquiry, (ii) willingness and fitness for collaboration, and (iii) an intergenerational stewardship outlook as motivation for innovating in their discipline.

Embedding a sustainable curriculum depends heavily on stakeholder buy-in, which can be achieved by creating a culture of commitment to excellence in learning and teaching as core business, firmly linked to scholarship and professional learning and development, with embedded quality assurance processes and continual renewal.

The following section briefly describes a student/ staff collaboration to design and implement a structured peer tutoring and informal mentoring program called LAW-PAL at Macquarie University. This demonstrates the possibilities inherent in adopting a whole-of-school view of leadership, and the capacity of students to act as change agents.

The impetus for the program came from the students themselves, initially as a response to the BMRI findings on poor emotional well-being. They approached the author to allow them to conduct a two week mini trial of peer assisted learning in Torts in 2009. This progressed into a larger funded pilot study across three units in first semester 2010, and continued to expand rapidly, encompassing almost the entire core curriculum. In just under two years, it had become the largest PAL program in any Australian law school, unique in its emphasis on shared leadership, responsibility and decision-making – that is, total partnership, between one staff member and an expanding group of students. Diverse groups of mixed-ability and varied background students learn outside the formal classroom, through weekly peer assisted learning (PAL) sessions in which later year students voluntarily assist earlier year students to practice skills and deepen their understanding of legal content in a given subject. In the context of LAW-PAL, the term ‘session’ is used to differentiate student-run PAL classes from those offered by academics; the term ‘Leader’ refers to a later-year high-achieving student who is trained as a facilitator and takes responsibility for designing and managing the weekly sessions; the term ‘Learner’ refers to the students attending PAL sessions.

The program is built on the three pillars of autonomy, competence, and connectedness or relatedness, drawn from self-determination theory. This theory maintains that well-being is correlated with intrinsic motivation, or performing tasks and activities because they are inherently gratifying.

Teamwork is a key feature for PAL Leaders, who work in pairs in the classroom, co-operate in a larger subject team, and form part of the entire LAW-PAL community. In so doing they are supporting one another and modelling, as well as developing, the skills of collaboration and co-operation (connectedness). Group work is just as important for Learners, who typically interact in sessions in guided group activities such as problem solving, quizzes, interviews, games or role plays. Leaders are afforded high levels of autonomy, for example, as regards session planning and development of learning activities, and are encouraged and expected to be creative and innovative. They are supported throughout by: regular peer and staff observation and feedback; thorough training that includes learning theory and detailed pedagogy along with practical instruction and practice; guided reflection; class discussion and sharing of problems; and celebration of successes. The program enables students in leadership roles to achieve a cultural shift in self-concept, to embrace a vision of themselves as teachers and learners concurrently. It also enables those in Learner roles to see themselves transitioning into Leaders in the future, since LAW-PAL Leaders in third or fourth year may well occupy the roles of Leader (of an early year subject) and Learner (in a later year PAL session) concurrently.

LAW-PAL has been an outstanding success, with demand from potential student Leaders far outstripping available places. It has now been rolled into a larger Faculty based multi-disciplinary program. Engaging in LAW-PAL constantly reinforces Leaders’ prior learning, encouraging a more holistic or ‘big picture’ grasp of law and the legal curriculum. LAW-PAL promotes social inclusion and enhances student learning by ensuring a safe, positive and supportive experience for all students to maximise achievement levels, and by developing an inclusive culture and practice in the area of learning and teaching. The small session (class) sizes, peer Leaders, absence of assessment, voluntary attendance, informal friendly and welcoming atmosphere, emphasis on group work and collaborative activity, all encourage students to attend and participate, even those who might normally be more withdrawn.

The program progresses graduate capability objectives by creating opportunities for students to practice and develop leadership and teamwork capabilities, communication skills, and specific discipline skills.

For academics, learning to trust students with control of their learning, which necessarily means giving up some of our own control, can be challenging. Students, too, often find it challenging being expected to learn to collaborate and co-operate with one another, problem solve, take risks, and be proactive. However, in the LAW-PAL program the student Leaders, Co-ordinators and the academic staff member worked together as equal partners in every way with complete trust, produced remarkable results, and learned extensively from the interaction. This type of collaboration has the potential to be the richest and most rewarding experience in teaching, and is entirely consistent with the vision of a ‘broad curriculum’ discussed above.

Challenging our current mental models about organisations and the roles of different individuals within them will enable us to embrace a more collaborative culture, building capacity through shared leadership and shared decision making by all members of the law school community, broadly defined to include academics, students, practitioners and others.

What is offered here is a conceptual framework for action that integrates both top-down and grass roots approaches, working towards sustainable curriculum design within the overall goal of achieving integration of the various activities of law schools.


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