Wolski, Bobette --- "Beyond Mooting: Designing an Advocacy, Ethics and Values Matrix for the Law School Curriculum" [2009] LegEdRev 3; (2009) 19(1) Legal Education Review 41
[*] Associate Professor of Law, Faculty of Law, Bond University.
[1] Gillespie notes that moot courts can be found throughout the Commonwealth, in the US and in Ireland (Gillespie’s research concerned mooting at law schools in the UK): Alisdair A Gillespie, ‘Mooting for Learning’ (2007) 5 Journal of Commonwealth Law and Legal Education 19, 19. The moot has even made its way to Sweden: see Jacob W F Sundberg, ‘Moot Court: An American Idea in a Nordic Setting’ (1997) 19 Justice System Journal 229.
[2] See, eg, Gillespie, above n 1, 35; Michael V Hernandez, ‘In Defense of Moot Court: A Response to “In Praise of Moot Court – Not!”’ (1998) 17 Review of Litigation 69, 74; Darby Dickerson, ‘In Re Moot Court’ (1999– 2000) 29 Stetson Law Review 1217, 1217–18; and Joel Butler and Rachel Mansted, ‘The Student as Apprentice: Bridging the Gap between Education, Skills and Practice’ (2008) 1 Journal of the Australian Law Teachers Association 287, 288.
[3] See, eg, John T Gaubatz, ‘Moot Court in the Modern Law School’ (1981) 31 Journal of Legal Education 87, 87; Alex Kozinski, ‘In Praise of Moot Court – Not!’ (1997) 97 Columbia Law Review 178, 180, 194; and Lee Stuesser, ‘Skills for the Masses: Bringing Clinical Skills to More Students at Less Cost’ (1992) 10 Journal of Professional Legal Education 119, 126.
[4] Gaubatz, above n 3, 88.
[5] Gillespie, above n 1, 23, 28, 35.
[6] Ibid 28, 35.
[7] Ibid 32–3 (Gillespie reports that moots were summatively assessed in all instances where moots were offered as a component of a skills-based module and in 83 per cent of all modules using moots — the percentage dropped to 83 per cent when allowance was made for discrete mooting modules ‘where it would be expected that more than one moot would be undertaken’). Also see Keyes and Whincop, who maintain that ‘the traditional moot is inherently summative’: Mary E Keyes and Michael J Whincop, ‘The Moot Reconceived: Some Theory and Evidence on Legal Skills’ [1997] LegEdRev 1; (1997) 8 Legal Education Review 1, 18.
[8] Gaubatz, above n 3, 91; Robert J Martineau, ‘Moot Court: Too Much Moot and Not Enough Court’ (1981) 67 American Bar Association Journal 1294, 1296. The reference to ‘neophyte skills’ is taken from Wade’s influential work, John H Wade, ‘Legal Skills Training: Some Thoughts on Terminology and Ongoing Challenges’ (1994) 5 Legal Education Review 173, 183.
[9] Gillespie, above n 1, 27. This concern is raised not only in relation to undergraduate law students in the UK and Australia. It has also been raised in relation to graduate law students in the US: see, eg, Martineau, above n 8, 1296. Generally, on the lack of systematic and incremental skills development in the law curriculum, see Wade, above n 8, 183.
[10] Della Thomson (ed), The Concise Oxford Dictionary Of Current English (9th ed, 1995) 883. For further discussion on the meaning of the noun ‘moot’, see Kozinski, above n 3, 194; and Terry Gygar and Anthony Cassimatis, Butterworths Skills Series — Mooting Manual (1997) 2.
[11] In the UK, see John Snape and Gary Watt, The Cavendish Guide to Mooting (2nd ed, 2000) 7–12; and Gillespie, above n 1, 19–20. For the history of mooting in Australia, see Gygar and Cassimatis, above n 10, 1–3; and Andrew Lynch, ‘Why do we Moot? Exploring the Role of Mooting in Legal Education’ [1996] LegEdRev 3; (1996) 7 Legal Education Review 67–70. On the history of mooting in the US, see Hernandez, above n 2, 75; Dickerson, above n 2, 1223; and Martineau, above n 8, 1294.
[12] See Lynch, above n 11, 73.
[13] Ibid 70.
[14] There are actually some six or seven points in the list of ‘key features’ provided by Lynch. Each of them is discussed in more detail below. Perhaps the most significant, when it comes to limiting the potential of a moot as a learning tool, is its focus on ‘points of law’.
[15] See Keyes and Whincop, above n 7, 2 (discussing the concept of the traditional moot).
[16] This is a fairly typical structure for a moot. On the position in Australia, see Lynch, above n 11, 70–1 (discussing the mooting programs at the University of Queensland, Griffith University and Queensland University of Technology). In the US, see Dickerson, above n 2, 1220–1; Charles Chase McCarter, ‘Questions and Answers Regarding Moot Court’ (1982–83) 12 Stetson Law Review 759, 766–7; Frank Tuerkheimer, ‘A More Realistic Approach to Teaching Appellate Advocacy’ (1995) 45 Journal of Legal Education 113, 113. The same format is used in law schools in South Africa: see Pam Watson and Jonathan Klaaren, ‘An Exploratory Investigation into the Impact of Learning in Moot Court in the Legal Education Curriculum’ (2002) 119 South African Law Journal 548, 553.
[17] Gillespie, above n 1, 20; Snape and Watt, above n 11, 2.
[18] Duncan Bentley, ‘Mooting in an Undergraduate Tax Program’ (1996) 7 Legal Education Review 98, 113. Some moots allow for three students to present for ‘each side’. See, eg, the Australian Law Students Association moot and the ELSA World Trade Organization Law Moot. On the practice of splitting issues: see Kozinski, above n 3, 192.
[19] Keyes and Whincop, above n 7, 16; Bentley, above n 18, 112–13.
[20] Thomson, above n 10, 463.
[21] The emphasis on appeal moots is found in law schools in all jurisdictions. In the UK, see A T H Smith (ed), Glanville Williams: Learning the Law (12th ed, 2002) 194; Gillespie, above n 1, 20; Snape and Watt, above n 11, 20. In Australia, see Marlene Le Brun and Richard Johnstone, The Quiet Revolution — Improving Student Learning in Law (1994) 307; Gygar and Cassimatis, above n 10, 8; Bentley, above n 18, 113. The position is the same in law schools in the US and Canada: see William H Kenety, ‘Observations on Teaching Appellate Advocacy’ (1995) 45 Journal of Legal Education 582, 584; Tuerkheimer, above n 16, 113–14; Stuesser, above n 3, 126; Kozinski, above n 3, 178, 190; Hernandez, above n 2, 73; Martineau, above n 8, 1294; Dickerson, above n 2, 1218; Charles R Knerr, Andrew S Sommerman and Suzy K Rogers, ‘Undergraduate Moot Court in American Colleges and Universities’ (2008) 19 Journal of Legal Studies Education 27, 27–8. There are some exceptions: see, eg, the ELSA World Trade Organization moot, which is a first instance case heard before a panel of trade law specialists; the Willem C Vis moot on international commercial arbitration, which is heard before an arbitral panel; the Philip C Jessup International Law Moot Court Competition and the Manfred Lachs Space Law Moot Competition, both of which are before the ‘International Court of Justice’. While the list of exceptions may seem long, only a minority of students take part in these competitions.
[22] In the UK, see Smith, above n 21, 194; Gillespie, above n 1, 20. In Australia, see Gygar and Cassimatis, above n 10, 15. In the US, see Kozinski, above n 3, 190; Gaubatz, above n 3, 88 (who notes that ‘programs tend to have an infatuation with the Supreme Court of the United States’); Kenety, above n 21, 582; Knerr, Sommerman and Rogers, above n 21, 30–32; Dickerson, above n 2, 1218 (although Dickerson points out that sometimes even the court and jurisdiction is fictitious; eg, the moot might be set before a hypothetical Supreme Court named after a law school).
[23] This explanation is offered by Snape and Watt, above n 11, 20. They state that, ‘[w]ith rare exceptions, a moot must take place in an appellate court because the mooters will be arguing points of law rather than questions of fact’. The exceptions to which they refer are ‘most international mooting competitions’.
[24] Martineau, above n 8, 1294–5.
[25] Ibid 1294.
[26] Snape and Watt, above n 11, 20.
[27] Graeme Broadbent, ‘Mooting: Big Event or Regular Occurrence?’ (Paper presented at the ALT Annual Conference, Durham, 2001) quoted in Gillespie, above n 1, 22.
[28] Karl Mackie, ‘Lawyer’s Skills: Educational Skills’ in Karl Mackie, Neil Gold and William Twining, Learning Lawyers Skills (1989) 11, 18.
[29] Le Brun and Johnstone, above n 21, 307.
[30] William M Sullivan et al, Educating Lawyers: Preparation for the Profession of Law (2007) 145.
[31] Gygar and Cassimatis, above n 10, 3–5; Dickerson, above n 2, 1218–19; Keyes and Whincop, above n 7, 16; Lynch, above n 11, 78; Gillespie, above n 1, 23; Hernandez, above n 2, 72; Knerr, Sommerman and Rogers, above n 21, 31–3; Watson and Klaaren, above n 16, 553.
[32] In the US, see the recommendations of the American Bar Association, Section on Legal Education and Admissions to the Bar, Legal Education and Professional Development — An Educational Continuum (Report of The Task Force on Law Schools and the Profession: Narrowing the Gap, 1992) 138–41 (the MacCrate Report); and, more recently, Roy Stuckey et al, Best Practices for Legal Education: A Vision and a Road Map (2007) 60–7 (the Stuckey Report). In the UK, see the Lord Chancellor’s Advisory Committee on Legal Education and Conduct, First Report on Legal Education and Training (1996) [1.19] and [2.4] (the ACLEC Report); Andrew Boon, ‘Ethics in Legal Education and Training: Four Reports, Three Jurisdictions and a Prospectus’ (2002) 5 Legal Ethics 34, 56; Fiona Cownie, ‘Alternative Values in Legal Education’ (2003) 6 Legal Ethics 159, 171. In Australia, see the Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) recommendation 2, ch 2 (the ALRC Report 89); Richard Johnstone and Sumitra Vignaendra, Learning Outcomes and Curriculum Development in Law: A Report Commissioned by the Australian Universities Teaching Committee (2003) 118. For a more general discussion on the need to teach ethics, values and professional responsibility in the law curriculum, see David Weisbrot, ‘Taking Skills Seriously: Reforming Australian Legal Education’ (2004) 29 Alternative Law Journal 266; Paul O’Shea, ‘The Complete Law School: Avoiding the Production of “Half-Lawyers”’ (2004) 29 Alternative Law Journal 272.
[33] For a definition of ‘legal ethics teaching’, see June Chapman, ‘Why Teach Legal Ethics to Undergraduates?’ (2002) 5 Legal Ethics 68, 71. See also Lawrence S Krieger, ‘The Inseparability of Professionalism and Personal Satisfaction: Perspectives on Values, Integrity and Happiness’ (2005) 11 Clinical Law Review 425, 436.
[34] Eleanor W Myers, ‘Teaching Good and Teaching Well: Integrating Values with Theory and Practice’ (1997) 47 Journal of Legal Education 401, 408–10; Russell G Pearce, ‘MacCrate’s Missed Opportunity: The MacCrate Report’s Failure to Advance Professional Values’ (2002– 2003) 23 Pace Law Review 575, 579; Richard A Matasar, ‘Skills and Values Education: Debate about the Continuum Continues’ (2002– 2003) 46 New York Law School Law Review 395, 411; Bethany Rubin Henderson, ‘Asking the Lost Question: What is the Purpose of Law School?’ (2003) 53 Journal of Legal Education 48, 62–3. In particular, for a summary of relevant literature, see Roger Burridge and Julian Webb, ‘The Values of Common Law Legal Education: Rethinking Rules, Responsibilities, Relationships and Roles in the Law School’ (2007) 10 Legal Ethics 72, 90.
[35] The Stuckey Report, above n 32, 31.
[36] Ibid 125. For more on the values that we should include in our instructional design: see, eg, the MacCrate Report, above n 32, 140–1; the ACLEC Report, above n 32, [1.21], [1.5], [2.4]; the Stuckey Report, above n 32, 60–1, 66–7; Pearce, above n 34, 579; Matasar, above n 34, 425; Adrian Evans and Josephine Palermo, ‘Preparing Australia’s Future Lawyers: An Exposition of Changing Values over Time in the Context of Teaching about Ethical Dilemmas’ [2006] DeakinLawRw 5; (2006) 11 Deakin Law Review 103, 109.
[37]On competing values, see Evans and Palermo, above n 36, 109.
[38] Andrew Boon, ‘History is Past Politics: A Critique of the Legal Skills Movement in England and Wales’ (1998) 25 Journal of Law and Society 151, 167.
[39] Ibid.
[40] Mackie, above n 28, 9.
[41] Sullivan et al, above n 30, 195.
[42] Ibid.
[43] Ibid. Stuckey and his associates also emphasise the need to develop knowledge, skills and values progressively, sequentially and systematically: the Stuckey Report, above n 32, 69–70.
[44] The Stuckey Report, above n 32, 74; Sullivan et al, above n 30, 126–61. In the UK, see Julian Webb, ‘Developing Ethical Lawyers: Can Legal Education Enhance Access to Justice?’ (1999) 33 The Law Teacher 284, 285–6. For the position in Australia, see G Villalta Puig, ‘Legal Ethics in Australian Law Schools’ (2008) 42 The Law Teacher 29, 30.
[45] Michael Robertson, ‘Challenges in the Design of Legal Ethics Learning Systems: An Educational Perspective’ (2005) 8 Legal Ethics 222, 237.
[46] Deborah L Rhodes, ‘Ethics by the Pervasive Method’ (1992) 42 Journal of Legal Education 31, 50. Also see O’Shea, above n 32, 272 who argues for the formal integration of ‘values’ and ‘ethics’ into the teaching of all the core ‘black letter’ subjects.
[47] Rhodes, above n 46, 50.
[48] Bruce A Green, ‘Less is More: Teaching Legal Ethics in Context’ (1997– 1998) 39 William & Mary Law Review 357, 360–1, 378–9.
[49] Ibid 388; Alice M Noble-Allgire, ‘Desegregating the Law School Curriculum: How to Integrate More of the Skills and Values Identified by the MacCrate Report into a Doctrinal Course’ (2002– 2003) 3 Nevada Law Journal 32, 37.
[50] Chapman, above n 33, 82.
[51] The ‘large lecture method is once again favoured because of the pressure to transmit basic doctrine’: Margaret Thornton, ‘The Idea of the University and the Contemporary Legal Academy’ [2004] SydLawRw 24; (2004) 26 Sydney Law Review 481, 486; Mary E Keyes and Richard Johnstone, ‘Changing Legal Education: Rhetoric, Reality, and Prospects for the Future’ [2004] SydLawRw 26; (2004) 26 Sydney Law Review 537, 552.
[52] Even small group tutorials are threatened: Thornton, above n 51, 486; and Keyes and Johnstone, above n 51, 552.
[53] Ross Hyams, ‘The Teaching of Skills: Rebuilding — Not Just Tinkering Around the Edges’ (1995) 13 Journal of Professional Legal Education 63, 71.
[54] Kathy Mack, ‘Bringing Clinical Learning into a Conventional Classroom’ [1993] LegEdRev 4; (1993) 4 Legal Education Review, 89, 91.
[55] Boon notes that ‘[a]mong those addressing the issue of how to teach ethics there is almost universal agreement that clinical courses provide the most effective vehicle’: Boon, above n 32, 60. For more on the potential benefits of clinic and simulation courses, see, generally, Roy Stuckey, ‘Teaching with Purpose: Defining and Achieving Desired Outcomes in Clinical Law Courses’ (2006– 2007) 13 Clinical Law Review 807, 827.
[56] See, eg, statistics given by Boon, above n 32, 63. This is also the case in Australian law schools where Robertson predicts that clinics ‘will continue to be rationed into the foreseeable future’: above n 45, 233. For further information on the position in Australia (and the resource problems associated with clinical courses), see Lyndal Taylor, ‘Skills Skills — Kind Inclusion and Learning in Law School’ (2001) 3 University of Technology, Sydney Law Review <http://www.austlii.edu.au/au/journals/UTSLRev/2001> at 23 December 2009.
[57] Richard Grimes, ‘The Theory and Practice of Clinical Legal Education’ in Julian Webb and Caroline Maughan (eds), Teaching Lawyers’ Skills (1996) 142.
[58] Stuckey, above n 55, 809–10, 812; Sullivan et al, above n 30, 28; and the Stuckey Report, above n 32, 133.
[59]David Kolb, Experiential Learning: Experience as the Source of Learning and Development (1984) 20–1. Kolb’s model builds on the work of earlier educational theorists: see Caroline Maughan, ‘Learning How to Learn: The Skills Developer’s Guide to Experiential Learning’ in Webb and Maughan, above n 57, 70; Ron Downs, ‘Experiential Learning: In a Practical Legal Training Course’ (1989) 7 Journal Of Professional Legal Education 141, 142–4; Graham Gibbs, Learning By Doing: A Guide to Teaching and Learning Methods (1988) 9.
[60] For an overview of Kolb’s four stage experiential learning model, see Gibbs, above n 59, 40; Maughan, above n 59, 63–4, 70–1. For more detailed discussion on experiential learning, see Susan W Weil and Ian McGill (eds), Making Sense of Experiential Learning: Diversity in Theory and Practice (1989) 12; David Boud, Rosemary Keogh and David Walker (eds), What is Reflection in Learning, Introduction to Reflection: Turning Experience into Learning (1985) 12–13.
[61] The term ‘theory’ as used here refers to the concepts and categories that individuals use to predict, explain, and extract information from episodes of experience in a systematic way: Gary L Blasi, ‘Teaching Lawyering as an Intellectual Project’ (1996) 14 Journal of Professional Legal Education 65, 68. There are a multiplicity of theories that inform skilled behaviour and a variety of perspectives from which it can be examined (eg, professional, ethical or social justice contexts): Carrie Menkel-Meadow, ‘Narrowing the Gap by Narrowing the Field: What’s Missing from the MacCrate Report — Of Skills, Legal Science and Being a Human Being’ (1994) 69 Washington Law Review 593, 609–10.
[62]Mackie, above n 28, 20.
[63] Richard Johnstone, Jenny Paterson and Kim Rubenstein, Improving Criteria and Feedback in Student Assessment in Law (1998) 6–7; Mackie, above n 28, 17; Gibbs, above n 59, 28.
[64]Gibbs, above n 59, 51; Derek Rowntree, Assessing Students: How Shall We Know Them? (2nd ed, 1987) 26. Generally, on the characteristics of effective feedback: see Maughan, above n 59, 87–9; Johnstone, Paterson and Rubenstein, above n 63, 39–41.
[65] For a detailed explanation of the process of reflection, see Gibbs, above n 59, 40; Caroline Maughan and Julian Webb, ‘Taking Reflection Seriously: How Was it for Us?’ in Webb and Maughan, above n 57, 261; see generally, Boud, Keogh and Walker, above n 60.
[66] Rowntree, above n 64, 122.
[67] Ibid 200.
[68] Keyes and Whincop, above n 7, 10–11; Rowntree, above n 64, 200.
[69] Jay M Feinman, ‘Simulations: An Introduction’ (1995) 45 Journal of Legal Education 469, 471. This is one of the reasons that skills are so often taught in conjunction with substantive law courses.
[70] Julian Webb, ‘Why Theory Matters’ in Webb and Maughan, above n 57, 44; the Stuckey Report, above n 32, 133.
[71] David A Binder and Paul Bergman, ‘Taking Lawyering Skills Training Seriously’ (2003) 10 Clinical Law Review 191, 215.
[72] Ibid.
[73] Paul J Spiegelman, ‘Integrating Doctrine, Theory and Practice in the Law School Curriculum: The Logic of Jake’s Ladder in the Context of Amy’s Web’ (1988) 38 Journal of Legal Education 243, 260.
[74] Sullivan et al, above n 30, 158–9. See the Stuckey Report, above n 32, 135 for objectives that can be achieved through use of simulation-based courses. Also see Myers, above n 34, 401.
[75] The Stuckey Report, above n 32, 133.
[76] For definitions and discussion of the potential educational value of simulations, see Robyn M Duncan, ‘Teaching Legal Skills for Transfer of Learning: Is Simulation the Answer?’ (1984) 2 Journal of Professional Legal Education 64, 68; Russell Stewart, ‘Making Simulating Stimulating’ (1985) 3 Journal of Professional Legal Education 51, 53; Spiegelman, above n 73, 263; Robert Park, ‘Appropriate Methods for the Teaching of Legal Skills in Practical Training Courses’ (1990) 8 Journal of Professional Legal Education 161, 175–6; Feinman, above n 69, 470.
[77] Cyril O Houle, Continuing Learning in the Professions (1980) 220, quoted in Stewart, above n 76, 51; Binder and Bergman, above n 71, 215. See also Stuckey on the importance of having students perform ‘the tasks that lawyers perform’: Stuckey, above n 55, 816.
[78] John B Biggs, ‘Teaching for Better Learning’ (1990–[1991] LegEdRev 8; 1991) 2 Legal Education Review 133, 142; Mackie, above n 28, 15. Kift confirms that it is ‘the learner’s conception of future practice’ which is important: Sally Kift, ‘Lawyering Skills: Finding their Place in Legal Education’ [1997] LegEdRev 2; (1997) 8 Legal Education Review 43, 58.
[79] Biggs, above n 78, 142.
[80] David A Binder, Albert J Moore and Paul Bergman, ‘A Dispositions Course: Tackling the Challenge of Teaching for Professional Skills Transfer’ (2006– 2007) 13 Clinical Law Review 871, 886.
[81] Mackie, above n 28, 17, 19.
[82] Lynch, above n 11 (describing the mooting programs at University of Queensland, Queensland University of Technology and Griffith University Law Schools); Keyes and Whincop, above n 7 (critiquing the traditional moot); Bentley, above n 18 (describing the use of moots in an elective tax law course at Bond University Law School); and, most recently, Butler and Mansted, above n 2 (describing a new appellate advocacy and mooting elective at Bond University Law School). Reference can also be made to a number of mooting manuals (eg, Gygar and Cassimatis, above n 10) and to more general literature on skills teaching and learning which addresses mooting, but only in passing.
[83] See Keyes and Whincop, whose main concern was the lack of formative feedback in traditional mooting: Keyes and Whincop, above n 7, 15. They propose ‘the formative moot’ as an alternative procedure. The only other potentially negative comment about moots in Australia is raised in the research conducted by Lynch, who found that students experienced a great deal of stress (and terror) in undertaking moots: Lynch, above n 11, 88.
[84] During this period, the author and at least one other member of faculty observed student performances in 20 moots each semester for six successive semesters (making a total of 120 moots). The same faculty members examined supporting documentation prepared by students for their moots and observed the debriefing sessions conducted by assessors and students after each moot. At the completion of the course containing moots, students were required to complete an evaluation form pertaining to the moot exercise. Originals of all documentation are on file with the author.
[85] Gygar and Cassimatis, above n 10, 5.
[86] Duncan notes that we live in a factually-ambiguous world characterised by uncertainty and value-conflicts: Nigel Duncan, ‘The Skill of Learning: Implications of the ACLEC First Report for Teaching Skills on Undergraduate Law Courses’ (1997) 5 Web Journal of Current Legal Issues 1, 4.
[87] Gaubatz, above n 3, 99.
[88] See Kozinski, above n 3, 188 (he attributes the problem directly to the format of the moot). Also see Gaubatz, above n 3, 99; and Hernandez who notes that moots ‘commonly focus primarily, if not exclusively, on pure issues of law’: Hernandez, above n 2, 73.
[89] Kenety, above n 21, 582.
[90] Martineau, above n 8, 1297.
[91] Duncan, above n 86, 4.
[92] Ibid 5.
[93] See, eg, Cownie, above n 32, 161 (where she notes that there are many views on the proper nature and purpose of the university law school). Also see the Stuckey Report, above n 32, 28; Sullivan et al, above n 30, 13; Andras Jakab, ‘Dilemmas of Legal Education: A Comparative Overview’ (2007) 57 Journal of Legal Education 253, 264 (where the author concludes that different countries have adopted different solutions to the issues of goals, content and methodologies).
[94] Keyes and Whincop, above n 7, 13. Also see Dennis Pearce, Enid Campbell and Don Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (1987) 58; John de Groot, ‘Acquiring Basic Legal Skills and Knowledge: What and Where?’ (1994) 12 Journal of Professional Legal Education 1, 1; William Twining, Law in Context: Enlarging a Discipline (1997) 194; Wade, above n 8, 175; John Goldring, ‘The Future of Legal Education: Why? And How? Doubtful Assumptions and Unfulfilled Expectations’ (1993) 11 Journal of Professional Legal Education 149, 150. For more general discussion on the purposes of law school, see Taylor, above n 56.
[95] See references above notes 32–43.
[96] Gaubatz, above n 3, 88.
[97] Ibid; Martineau, above n 8, 1297; Kozinski, above n 3, 191.
[98] Gaubatz, above n 3, 88.
[99] Kozinski, above n 3, 191.
[100] Martineau, above n 8, 1297.
[101] Kozinski, above n 3, 192.
[102] It is acknowledged that some international mooting competitions place heavy emphasis on written submissions or memorials. However, this is not normally the case with moots that take place within the curriculum. On the lack of emphasis given to the written component of traditional moots in law schools in Australia, see Keyes and Whincop, above n 7, 21–2. In the US, see Kenety, above n 21, 584; Kozinski, above n 3, 186; Hernandez, above n 2, 80, all of whom argue that insufficient attention is given to written argument.
[103] There is a direct relationship between assessment, motivation and positive learning outcomes: see Johnstone, Paterson and Rubenstein, above n 63, 7–8; Rowntree, above n 64, 22. Keyes and Whincop also observe that students have little motivation to develop written skills when the traditional moot format is used: Keyes and Whincop, above n 7, 21.
[104] Kozinski, above n 3, 186.
[105] Lord Alexander of Weedon, ‘The Art of Advocacy’ (1991) 9 Bar News — The Journal of the New South Wales Bar Association 14, 14. Generally, on the role and importance of written submissions, see James L Glissan, Advocacy in Practice (2005) 195.
[106] This trend is likely to continue: see Justice Michael D Kirby, ‘Ten Rules of Appellate Advocacy’ (1995) 69 Australian Law Journal 974, 975; David F Jackson, ‘Practice in the High Court of Australia’ (1996– 1997) 15 Australian Bar Review 187, 198.
[107] See, eg, Gaubatz, above n 3, 87; Martineau, above n 8, 1297; Stuesser, above n 3, 126.
[108] For relevant statistics on the number of appeals to the High Court of Australia, see Jackson, ‘Practice in the High Court of Australia’, above n 106, 197–8. Gillespie agrees that it could be many years before a barrister appears before the Court of Appeal and much longer still before they appear before the House of Lords in the UK: Gillespie, above n 1, 20.
[109] Bond University School of Law’s Student Evaluation Forms of substantive courses containing moots taught in the period 1996–97.
[110] Kenety, above n 21, 582–4; Tuerkheimer, above n 16, 113–15; Kozinski, above n 3, 178, 190.
[111] For example, Dickerson states that ‘[m]oot court is an activity in which students practice appellate advocacy skills’: Dickerson, above n 2, 1218; while Gygar and Cassimatis use the phrases ‘university mooting program’ and ‘university appellate advocacy program’ interchangeably: Gygar and Cassimatis, above n 10, 6.
[112] Gillespie, above n 1, 19.
[113] Alisdair A Gillespie and Gary Watt, Mooting for Learning (2006) UK Centre for Legal Education <http://www.ukcle.ac.uk/research/projects/gillespie2.html> at 23 December 2009. Unfortunately, Gillespie and Watt did not ask institutions to indicate whether or not mooting was compulsory; nor did they ask them to indicate how mooting competitions were accommodated within the curriculum, if at all.
[114] Gillespie, above n 1, 22.
[115] The results of the survey do not indicate whether students are given a pass/fail grade or ranked.
[116] Gillespie, above n 1, 32–4; Keyes and Whincop, above n 7, 18.
[117] Gillespie, above n 1, 33–4.
[118] Ibid 27.
[119] These results are based on a survey of the course requirements, course offerings and newsletters published by university law schools in Australia (viewed at 11 October 2008), and on published literature such as the stocktake of legal education conducted by Johnstone and Vignaendra, above n 32, 133-55; Gygar and Cassimatis, above n 10, 129; Keyes and Whincop, above n 7, 16; and Lynch, above n 11, 72.
[120] Lucia A Silecchia, ‘Legal Skills Training in the First Year of Law School: Research? Writing? Analysis? Or More?’ (1996) 100 Dickinson Law Review 245, 249; Gaubatz, above n 3, 90; McCarter, above n 16, 759; Martineau, above n 8, 1295; Dickerson, above n 2, 1218.
[121] Silecchia, above n 120, 249. Generally, for a discussion of the position in law schools in the US, see Knerr, Sommerman and Rogers, above n 21, 27; and Dickerson, above n 2, 1218. On skills teaching generally in US law schools: see Sullivan et al, above n 30, 87–8.
[122] Dickerson, above n 2, 1223; Knerr, Sommerman and Rogers, above n 21, app.
[123] This appears to be a fairly common way for schools to accommodate major mooting competitions within the curriculum: see references above n 119. The competitions in this category include the Philip C Jessup International Law Moot Court Competition, the ELSA Moot Competition on WTO Law, the Willem C Vis International Commercial Arbitration Moot, and the International Maritime Law Arbitration Moot Competition.
[124] The first model has been used for many years at the University of Queensland, Australia.
[125] Lynch, above n 11, 73.
[126] Gygar and Cassimatis, above n 10, 128–9; Lynch, above n 11, 72–3.
[127] Gillespie, above n 1, 35.
[128] Both Griffith University Law School and Bond University Law School use this model.
[129] William Twining, ‘Preparing Lawyers for the Twenty-First Century’ [1992] LegEdRev 1; (1992) 3 Legal Education Review 1, 2.
[130] For example, the authors of the Stuckey report urge us to develop a program of instruction which integrates the teaching of theory, doctrine and practice: see the Stuckey Report, above n 32, 71.
[131] Stuesser, above n 3, 119; Lynch, above n 11, 91, 93; Noel Jackling, ‘Academic and Practical Legal Education: Where Next?’ (1986) 4 Journal of Professional Legal Education 1, 4; Keyes and Whincop, above n 7, 34. Generally, on deep, achieving and surface approaches to learning, see Biggs, above n 78, 138–40; Gordon Joughin and David Gardiner, A Framework for Teaching and Learning Law (1996) 5.
[132] Susan L DeJarnatt, ‘In re MacCrate: Using Consumer Bankruptcy as a Context for Learning in Advanced Legal Writing’ (2000) 50 Journal of Legal Education 56, 56; Philip A Jones, ‘We’re All Reflective Practitioners Now: Reflections on Professional Education’ in Webb and Maughan, above n 57, 292–3; Spiegelman, above n 73, 262.
[133] Bentley, above n 18, 109 (describing the use of moots in a tax law course at Bond University Law School).
[134] Lynch, above n 11, 72 (describing the first moot in the curriculum at Griffith University Law School).
[135] It has been argued that not all law students want to become lawyers and that they might not want to develop the skills involved in mooting. This argument loses sight of the potential for moots to develop substantive law, and ethics and values, in addition to skills. It also overlooks the fact that almost all of the skills developed through mooting are generic in nature: see Penny Crofts, ‘Crossing the Theory/Practice Divide: Community-Based Problem Solving’ [2001] UTSLawRw 6; (2001) 3 UTS Law Review 40, 40, 46; Kift, above n 78, 52–3. On the relationship between generic skills and legally-specific skills, see William Twining, ‘Taking Skills Seriously’ in Mackie, Gold and Twining, above n 28, 4.
[136] Feedback has been described as ‘evaluative information which may be used by students in reflecting upon and improving their performance in a learning activity’: Keyes and Whincop, above n 7, 10.
[137] Formative assessment is designed primarily to assist students to learn. It usually occurs as part of a progressive or ongoing learning exercise. Summative assessment is designed primarily to test and certify achievement and generally results in provision of a grade to students. It is usually associated with terminal activities such as end of semester exams. However, in practice, assessment is rarely purely formative or summative in nature and the teaching–learning and certification aspects of assessment are often linked: see Rowntree, above n 64, 122; Johnstone, Paterson and Rubenstein, above n 63, 7.
[138] This does not always occur. The author completed two discrete mooting subjects as part of her law degree and neither one of them incorporated formative feedback.
[139] Gillespie, above n 1, 33–4.
[140] Gillespie, above n 1, 30; Keyes and Whincop, above n 7, 2, 37. The time and resource demanding nature of the model proposed by Keyes and Whincop (which requires a commitment in excess of five to six hours for each moot) might preclude its use in compulsory courses with large student enrolments.
[141] Gillespie, above n 1, 33.
[142] These concerns are raised not only in relation to undergraduate law students in the UK and Australia: see, eg, Gillespie, above n 1, 27. They have also been raised in relation to graduate law students in the US: see, eg, Martineau, above n 8, 1296; Gaubatz, above n 3, 91.
[143] The Johnstone and Vignaendra report mentions three law schools where moots are offered in the first year program: see Johnstone and Vignaendra, above n 32, 133–55. Moots have also been offered in the first year program at Griffith University Law School: Lynch, above n 11, 72; Keyes and Whincop, above n 7, 16; and at the Queensland University of Technology Law School: Lynch, above n 11, 72.
[144] Gaubatz, above n 3, 91; Martineau, above n 8, 1296; McCarter, above n 16 (where the author discusses the moot court experience of a first-year research and writing course which he claims is required at many schools in the US).
[145] Martineau, above n 8, 1296.
[146] Ibid.
[147] Ibid.
[148] Ibid.
[149] This is how some students described their experiences of mooting in a survey conducted by Lynch: see Lynch, above n 11, 88, 91.
[150]Biggs, above n 78, 138–40; Joughin and Gardiner, above n 131, 5; Paul Ramsden, Learning to Teach in Higher Education (2nd ed, 2003) ch 4.
[151] Mackie, above n 28, 9.
[152] Gaubatz, above n 3, 91.
[153] Martineau, above n 8, 1296.
[154] Ibid. Also see Stuesser, above n 3, 126.
[155] Martineau, above n 8, 1297.
[156] For a detailed description of this skills program: see Bobette Wolski, ‘Why, How and What to Practice: Integrating Skills Teaching and Learning in the Undergraduate Law Curriculum’ (2002) 52 Journal of Legal Education 287.
[157] This approach to learning (referred to as an incremental or building block approach or as scaffolding) is one way of creating ‘linked progression in the structure of skills learning’: Mackie, above n 28, 16, 18.
[158] This review was conducted using the same methodology as that used for the Bond University Law School 1996–97 mooting program review. Original documentation is on file with the author. In fact, each advocacy component is evaluated, separately from the substantive course in which it is contained, each time it is taught using student evaluation forms. The evaluation form is designed to elicit qualitative comments from students, using a series of open-ended questions. Students are also asked to comment on things they liked and did not like about the component, and on any changes they would like to see made to it.
[159] For a discussion of the concepts of case theory and theme, see David Napley, The Technique of Persuasion (4th ed, 1991) 9; Thomas A Mauet and Les A McCrimmon, Fundamentals of Trial Techniques (2001) 9–11; Kirby, above n 106, 971–2.
[160] On an advocate’s duties to the client, to the court and to the public, see Richard Du Cann, The Art of the Advocate (1993) 43–9; Napley, above n 159, 66–72.
[161] See, eg, the tests set out in David F Jackson, ‘Appellate Advocacy’ (1991– 1992) 8 Australian Bar Review 245, 248–9.
[162] On the requirements of a well-drafted ground of appeal: see ibid 247–50.
[163] Students have further opportunity for oral appellate argument in several internal and external mooting competitions.
[164] Generally, on the challenges associated with teaching and learning skills at law school, see Wade, above n 8, 183–90; Wolski, above n 156.
[165] Wade, above n 8, 183; Hyams, above n 53, 75; Vivienne Brand, ‘Decline in the Reform of Law Teaching?: The Impact of Policy Reforms in Tertiary Education’ (1999) 10 Legal Education Review 109, 122–3.
[166] Wade, above n 8, 189; Twining, Law in Context: Enlarging a Discipline, above n 94, 190.
[167] A range of specialist skills-based and substantive law electives is offered for students who have a special interest in a particular field.
[168] Twining, Law in Context: Enlarging a Discipline, above n 94, 194; Stuckey, above n 55, 820.
[169]A term used by DeJarnatt to describe the effect of teaching advanced legal writing within the context of a single substantive law course: see DeJarnatt, above n 132, 56. See also Noble-Allgire, above n 49, 36–7.
[170] The word ‘matrix’ seems appropriate to describe this structure. The term is defined in the Oxford Dictionary as ‘a rectangular array of elements in rows and columns that is treated as a single entity’: Thomson, above n 10, 841.
[171] Student practice is recorded and students are encouraged to watch their ‘taped’ performance. On the potential advantages and disadvantages of using video recordings, see Gibbs, above n 59, 41; Johnstone, Paterson and Rubenstein, above n 63, 52; Rowntree, above n 64, 138; Steven Lubet, ‘Advocacy Education: The Case for Structural Knowledge’ (1991) 66 Notre Dame Law Review 721, 734.
[172] Rowntree allowed for the possibility that further teaching and subsequent assessment might take place in the following term: Rowntree, above n 64, 122.
[173] It is not necessary for students to repeat the whole subject Legal Skills but only those components which they initially failed.
[174] Opinions are divided on whether a pass/fail grading system is more appropriate for skills than a traditional grading system: see, eg, Myers, above n 34, 411; John K De Groot, Producing a Competent Lawyer — Alternatives Available (1995) 74. See, generally, Charles B Craver, ‘The Impact of a Pass/Fail Option on Negotiation Course Performance’ (1998) 48 Journal of Legal Education 176.