Barnes, Jeffrey W --- "The Functions of Assessment: A Re" [1991] LegEdRev 10; (1990-91) 2(1) Legal Education Review 177
[*] Faculty of Law, Monash University. This article is based on talks given to meetings of the Teaching Interest Groups at Monash University and University of Melbourne law schools. Comments from participants assisted me. I am grateful also for the comments on a draft of this article made by my colleagues Professor Richard Fox and Mr John Glover, and by the anonymous referees.
© 1991. (1990–91) 2 Legal Educ Review 177.
[1] FCL Beighton & CM Maxwell, Student Attitudes to Undergraduate Assessment (1975) 18 Vestes 161; University of London Teaching Methods Unit, Improving Teaching in Higher Education (London: Methuen, 1976) at 96.
[2] A Miller, An Assessment of Assessment, in Schooling and Learning: How Interdependent (Australian Association for Research in Education, 1978) 400.
[3] WA Reynolds, Higher Learning in America: Aims and Realities, in Assessing the Outcomes of Higher Education: Proceedings of the 1986 ETS International Conference (Princeton: Educational Testing Service, 1987) at 7; JW Chandler, The Why, What, and Who of Assessment: The College Perspective, id at 11.
[4] DMR Tribe & AJ Tribe, Assessing Law Students (1986) 20 The Law Teacher 160; AJ Tribe & DMR Tribe, The Assessment of Students on Law Degrees in the Public Sector — Law Lecturers’ Views on Student Assessment (1988) 22 The Law Teacher 68.
[5] D Pearce, E Campbell& D Harding, 1 Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (Pearce Report) (Canberra: AGPS, 1987) at secs 3.49 ff.
[6] JA Bowden & P Ramsden, Assessment Practices and Student Learning (Melbourne: University of Melbourne, 1986) at 7.
[7] Pearce Report, supra note 5, at sec 3.51. The latest development in North America is the use of oral examinations in law: SI Friedland, Towards the Legitimacy of Oral Examinations in American Legal Education (1988) 39 Syracuse L Rev 627.
[8] Pearce Report, supra note 5, at secs 3.50–3.52. At sec 3.51 it was reported that “in all law schools except Macquarie and UNSW, a substantial majority of the subjects taught are assessed as to 50 per cent or more of the possible marks by means of formal end of year or semester examinations”. On American practice see Friedland, supra note 7, at 628; KP Cross, Using Assessment to Improve Instruction, in Educational Testing Service, supra note 3.
[9] Australia, Higher Education: A Policy and Discussion Paper (Canberra: AGPS, 1987); Department of Employment, Education and Training, Higher Education: A Policy Statement (Canberra: AGE, 1988).
[10] CR Williams, New Directions in Legal Education (1989) 63 LIJ 611.
[11] In this article assessment generally refers firstly to “summative” as opposed to “formative” assessment. According to GI Feletti, Assessment for Capability (1984) 21 Prog Learning Educ Tech 294, at 294–295, the former is formal and mandatory and demonstrates the acquisition of certain knowledge, skills, values and attitudes. The latter is voluntary, informal, and instituted for the purposes of providing feedback. Secondly, it refers to only the higher order decisions of what to assess and which criteria to use in the assessment, rather than with marking or grading issues of how to apply that criteria and doing the assessment itself: terminology adopted from J Heron, Assessment Revisited, in D Boud (ed), Developing Student Autonomy in Learning (London: Kogan Page, 1981) 55 at 66. For discussion of these lower order decisions, see HR Pollio & WL Humphreys, Grading Students, in JH McMillan (ed) Assessing Students’ Learning (San Francisco: Jossey-Bass, 1988) 85; D Newble & R Cannon, A Handbook for Teachers in Universities and Colleges: A Guide to Improving Teaching Methods (New York: Kogan Page, 1989) ch 6.
[12] J Heywood, Assessment in Higher Education, 1st ed (London: Wiley, 1977) at vii.
[13] D Watkins & B Morstain, The Educational Orientations of Lecturers and their Students: A Case Study of an Australian University (1980) 24 Aust Educ 155, at 160. No law lecturers were surveyed.
[14] Beighton & Maxwell, supra note 1.
[15] A majority (63 per cent) of the respondents did agree that the methods of assessment were generally satisfactory. However only law graduates were sampled. Two of the top three approval ratings were also at the only law schools rated by the Report as not dominated by examinations (Volume 4, sec 5.2.7). And all but five of the 77 respondents who made individual comments on assessment were highly critical of their experience, describing the assessment as “too academic”: id at sec 5.2.8.
[16] CJH Thomson, Objectives of Legal Education — An Alternative Approach (1978) 52 ALJ 83.
[17] JP Powell, The Residues of Learning: Autobiographical Accounts by Graduates of the Impact of Higher Education (1985) 14 Higher Educ 127, at 140.
[18] G Lyons, Assessment Methods: the Time for Review (1979/80) Laura 31, at 33.
[19] Legal Education in Australia: The Submission of Australian Law School Deans to the Commonwealth Assessment Committee for the Discipline of Law (1986) (“Australian Law School Deans”) at 11.
[20] JH Wade, Legal Education in Australia — Anomie, Angst, and Excellence (1989) 39 J Legal Educ 189, at 199.
[21] Heywood, supra note 12 at 1; M Josephson, 1 Learning and Evaluation in Law School (1984) at 3; Lyons, supra note 18, at 35; G Loaker, Faculty as a Force to Improve Instruction Through Assessment, in JH McMillan (ed) Assessing Students’ Learning (1988), 19 at 23–29.
[22] See generally, AJ Pirie, Objectives in Legal Education: The Case for Systematic Instructional Design (1987) 37 J Legal Educ 576.
[23] University of London Teaching Methods Unit, supra note 1, at 120–121.
[24] The submission of the Australian Law School Deans to the Pearce Inquiry stated that “[i]t is axiomatic that assessment procedures should relate directly to course aims”: supra note 5, at 11.
[25] G Bergenhenegouwen, Hidden Curriculum in the University (1987) 16 Higher Educ 535.
[26] Id. At 536.
[27] Id; PC Kissam, Law School Examinations (1989) 42 Vanderbilt L Rev 433, at 451–452.
[28] RE Megarry, Law as Taught and Law as Practised (1966/67) 9 J Soc Pub Teachers Law 176, at 184.
[29] See also D Watkins, The Approaches to Learning of Australian Tertiary Students: A Replication (1986) 5 Higher Educ Res Develop 185, at 186.
[30] Bowden & Ramsden, supra note 6, at 2. In Victoria, final year students from 1991 onwards are to be assessed by a variety of mechanisms instead of solely by examination. Significantly, the debate over assessment has been the most controversial aspect of the new certificate: DN Caulley, CATS show well in trials, The Age 12 June 1990, at 20.
[31] C Ward, Designing a Scheme of Assessment (London: Stanley Thornes, 1980) at 29.
[32] Cf Feletti, supra note 11.
[33] Cf infra, at 202–204.
[34] Williams, supra note 10.
[35] Id at 612.
[36] Supra, at 180–182.
[37] Infra, at 213.
[38] Despite the pessimism of some teachers, the quality of teaching has been rated by students to be of “considerable importance” to their learning: D Watkins, How Students Explain Their Academic Performance (1985) 4 Higher Educ Res Develop 89, at 92. It also has a significant association with “deep” as opposed to “surface” approaches to learning: D Watkins, Student Perceptions of Factors Influencing Tertiary Learning (1984) 3 Higher Educ Res Develop 33, at 41.
[39] Watkins (1984), supra note 38, at 47–48.
[40] Loaker, supra note 21, at 26.
[41] Kissam, supra note 27, at 494–496.
[42] This is not easy to achieve even in smallish classes in view of “over participation” of male students: J Morgan, The Socratic Method: Silencing Cooperation (1989) 1 Legal Educ Rev 151; see further infra, at 195.
[43] See G Gibbs et al, 53 Interesting Things to do in Your Lecture (Bristol: Technical and Educational Services, 1985); Newble & Cannon, supra note 11, ch 1.
[44] Kissam, supra note 27, at 502.
[45] Id at 470.
[46] Beighton & Maxwell, supra note 1, at 163; D Thoday, How Undergraduates Work (1957) 11 Universities Quarterly 172, cited in Tribe and Tribe (1986) supra note 4, at 162.
[47] A D’Amato, The Decline and Fall of Law Teaching in the Age of Student Consumerism (1987) 37 J Legal Educ 461.
[48] Australian Law School Deans, supra note 19, at 6; University of London Teaching Methods Unit, supra note 1, at 109; Heron, supra note 11, at 58.
[49] Pearce Report, supra note 5, at secs 3.60–3.61.
[50] MS Knowles, Reface in D Boud (ed), Developing Student Autonomy in Learning (London, Kogan Page, 1981) at 8.
[51] Bowden & Ramsden, supra note 6, at 4–5.
[52] Australian Law School Deans, supra note 19; Pearce Report, supra note 5, at sec 1.52.
[53] E Gaudry & PG Power, A Study of Anxiety Level under Continuous and Terminal Assessment (1973) 11 Australian University 26.
[54] Watkins (1984, supra note 38, at 47–48.
[55] University of London Teaching Methods Unit, supra note 1, at ch 6.
[56] A 1986 study at the Australian National University found results “which were much more in accord with the avowed aims of tertiary education”: Watkins, supra note 29, at 188. Cf Powell, supra note 17, who, after reviewing the literature and his own empirical research, is sceptical of many of the educational benefits often assumed to be brought about by higher education.
[57] Infra, at 193–196.
[58] But see Powell, supra note 17, at 128 who cites studies which show a substantial loss in the ability to recall “factual” information. “Naive” ideas also remained, the changes in conceptual knowledge being “superficial” and “linguistic”: id.
[59] On the development of theoretical dimensions in substantive law subjects, see C Sampford and D Wood, Legal Theory and Legal Education — The Next Step [1989] LegEdRev 10; (1989) 1 Legal Educ Rev 107.
[60] Although clinical legal education tends to be relegated to the final years of the law school, it could sensibly form part of every subject, with few exceptions. See further, infra, at 202.
[61] See generally W Twining, Legal Skills and Legal Education (1988) 22 The Law Teacher 4.
[62] Australian Law School Deans, supra note 19, at 4. But a theoretical and uncritical education is the “norm”: Sampford and Wood, supra note 59, at 132,134n; Powell, supra note 17, at 140.
[63] Sampford and Wood, supra note 59, at 39.
[64] G Watson, Writing a Thesis: A Guide to Long Essays and Dissertations (London: Longman, 1987) at 9.
[65] Id.
[66] Twining, supra note 61, at 13.
[67] KS Bean, Writing Assignments in Law School Classes (1987) 37 J Legal Educ 276.
[68] SL Hayes & RA Hayes, Towards Objective Assessment of Class Participation (1973) 12 J Soc Pub Teachers Law 323; R Sappideen, Evaluating Class Participation: Some Reflections on the University of New South Wales and Macquarie University Experience (1982) 16 The Law Teacher 179.
[69] Friedland, supra note 7, at 634–635.
[70] Australian Law School Deans, supra note 19, at 8.
[71] Heywood, supra note 12, at vii.
[72] D’Amato, supra note 47, at 464. The author also describes learning as an “antipleasure experience” but this seems an exaggeration.
[73] Bean, supra note 67, at 277; cf Tribe and Tribe (1986) supra note 4, at 162.
[74] It has been argued that student deference to law teachers lies behind the reluctance to take this step: Kissam, supra note 27, at 472.
[75] LF Del Duca & DB King, Student Examination Answers: Educational Tool or Incinerator Fuel? (1961) 13 J Legal Educ 499, at 500.
[76] C Symons, More Crosses than Ticks: An Assessment of Assessment (1989) 35 Educ Link 5, at 6–7, 8.
[77] Ward, supra note 31, at 6.
[78] Tribe and Tribe (1986), supra note 4, at 161. —
[79] See further Cross, supra note 8.
[80] Kissam, supra note 27, at 488.
[81] University of London Teaching Methods Unit, supra note 1, at 99.
[82] Gaudry & Power, supra note 53; see also GAH Benjamin et al, The Role of Legal Education in Producing Psychological Distress Among Law Students and Lawyers [l986] Am Bar Foundation Res J 225.
[83] Supra note 6, at 2.
[84] University of London Teaching Methods Unit, supra note 1, at 103.
[85] D’Amato, supra note 47.
[86] Miller, supra note 2.
[87] See “coordinated setting” and “fair procedures”, infra, at 212.
[88] See further Kissam, supra note 27.
[89] TH Greco, Is There Really a Difference Between Criterion-Referenced and Norm-Referenced Measurements (1974) 14 (12) Educ Technology 22.
[90] N Preston, The Dawkins et a1 Managerial Assessment Push (1989) 35 Educ Links 21, at 22.
[91] See generally A Hunt, The Rise and Ruse of Administrative Law and Scholarship (1985) 48 Mod L Rev 293, at 295–296. Cf M Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (OUP, 1991).
[92] See further Kissam, supra note 27, at 481–482.
[93] Id, at 453n.
[94] See M Krygier, Law as Tradition (1986) 5 Law and Philos 237, at 251.
[95] Morgan, supra note 42.
[96] See further, id at 161–162.
[97] Supra note 27, at 457.
[98] C Falkus, How’s It Going, Sport? in R Braddon (ed) Australia Fair? Recollections, Observations and Irreverence (1984) 65, at 69.
[99] Kissam, supra note 27, at 48243.
[100] Infra, at 204–207.
[101] See generally F Bates, The Law Teacher’s Dilemma (1983) 17 The Law Teacher 151.
[102] A “liberal” education is one of the express objectives of the Monash University Law School: 1 Monash University Calendar 1989 (Melbourne: Monash University, 1988) at 7/2.
[103] Professor Ivan Shearer, former Dean of the Faculty of Law, University of New South Wales, The Law Report, Radio National, 17 July 1990.
[104] Supra note 19, at 4.
[105] Thomson, supra note 16.
[106] Supra note 5, at para 3.49.
[107] Bates, supra note 101, at 160.
[108] F Bates, “Like an Unwelcome Guest”: The Moral Crisis in Modern Legal Education (1984) 18 The Law Teacher 181 at 193.
[109] F Bates, The Responsibility of the Law School (1981) 15 The Law Teacher 172 at 178.
[110] Wade, supra note 20, at 194,195.
[111] Sampford & Wood, supra note 59, at 3311.
[112] Id at 33.
[113] Id at 39n.
[114] Id at 40.
[115] A Hunt, The Case for Critical Legal Education (1986) 20 The Law Teacher 10, at 16–17; RW Gordon, Critical Legal Studies as a Teaching Method, Against the Background of the Intellectual Politics of Modern Legal Education in the United States [1989] LegEdRev 6; (1989) 1 Legal Educ Rev 59, at 76–77.
[116] Supra note 20, at 195.
[117] Supra, at 185–186.
[118] Infra, at 212.
[119] Information kindly supplied by MS V Waller (Monash Orientation Scheme for Aborigines at Monash University) and my colleague Ms A Frayman.
[120] See generally, G Bird, The Process of Law in Australia: Intercultural Perspectives (Sydney: Butterworths, 1988).
[121] But see DA Bell, Law School Exams and Minority Group Students (1981) 7 Black L J 304.
[122] PJ Hams & JO Buckle, Philosophies of Law and the Law Teacher (1976) 10 The Law Teacher 1.
[123] J MacFarlane, M Jeeves &A Boon, Education for Life or for Work? (1987) 137 New L J 835.
[124] See note 141, infra
[125] Watkins, supra note 29, at 189. Law students were not surveyed.
[126] See further Kissam, supra note 27.
[127] Gaudry & Power, supra note 53.
[128] Bowden & Ramsden, supra note 6, at 1
[129] Powell, supra note 17, at 140.
[130] Id at 128,140.
[131] Kissam, supra note 27, at 477–478.
[132] University of London Teaching Methods Unit, supra note 1, at 98.
[133] Kissam, supra note 27, at 483–484.
[134] Id at 458–461.
[135] Id at 451.
[136] Sec 3.52.
[137] Bean, supra note 67, at 277.
[138] Queensland Institute of Technology, cited in Pearce Report, supra note 5, at sec 3.51; id at sec 3.53.
[139] Beighton & Maxwell, supra note 1, at 164.
[140] University of London Teaching Methods Unit, supra note 1, at 102–103; Kissam, supra note 27, at 453; cf submission of Queensland Institute of Technology cited in Pearce Report, supra note 5, at sec 3.51.
[141] Examinations have traditionally been much vaunted for their reliability, but this advantage, if it exists, is a relative one, since there is a long record of research documenting the weaknesses of examinations in yielding consistent results or of measuring what it was intended to measure: Tribe &Tribe (1986), supra note 4, at 164–165. Examinations are also biased in favour of students whose background is “traditional privilege”: PS Broadfoot, cited in JC Mathews, Examinations: A Commentary (London: Allen and Unwin, 1985) at 34.
[142] Kissam, supra note 27, at 457.
[143] D Weisbrot, Australian Lawyers (Melbourne: Longman Cheshire, 1990) at 19.
[144] Supra note 27, at 479.
[145] Weisbrot, supra note 143, at 19.
[146] Pearce Report, supra note 5, at sec 3.53.
[147] Id at secs 3.53,3.55; Friedland, supra note 7, at 630.
[148] Williams, supra note 10, at 611.
[149] Supra note 11.
[150] Sampford & Wood, supra note 59, at 38.
[151] Pearce Report, supra note 5, at sec 3.61.
[152] See R Beard, Teaching and Learning in Higher Education, 3rd ed (Harmondsworth: Penguin, 1976) at 17–21; WG Perry, Forms of Intellectual and Ethical Development in the College Years: A Scheme (New York: Holt, Rinehart and Winston, 1970).
[153] In the case of a one semester subject, three different modes would be a desirable maximum.
[154] Cf Pearce Report, supra note 5, at sec 3.55. It favoured “differing means” of assessment such as “not less than one” research assignment. But the authors retreated to the position that “staff resources may not be able to encompass them”.
[155] Symons, supra note 76, at 8.