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Berard, Timothy J --- "The Relevance of the Social Sciences for Legal Education" [2009] LegEdRev 9; (2009) 19(1) Legal Education Review 189

THE RELEVANCE OF THE SOCIAL SCIENCES FOR LEGAL EDUCATION

TIMOTHY J BERARD*

I  INTRODUCTION

The relevance of social science for our understanding of law has been suggested by a disparate variety of scholars, including many associated with such interdisciplinary fields as law and political science, law and sociology, law and economics, law and anthropology, law and psychology, and law and history.1 Without in any way denigrating the relevance of traditional humanities disciplines such as philosophy and literature, which also have their established literatures on the law, many of the ‘law and ____’ fields represent a significant two-fold overlap between law and social science. First, the overlap reflects the intimate relations between legal phenomena and social, political, economic, cultural, psychological, historical, religious, linguistic, and other phenomena. Second, it reflects the existence and further potential of interdisciplinary scholarship, in that it is an overlap or potential overlap between the discipline of law and other disciplines which in part address legal institutions, legal professions, legal personnel, legal policies, legal arguments and legal decision-making, among other topics.2 Unfortunately, the overlaps which are so easily seen and appreciated in the reality of legal practice and which are increasingly recognised in the study of legal phenomena, are not reflected particularly well in legal education. This pedagogical lag prompts the following observations and suggestions on the potential contributions of the social sciences to legal education, both in the law school and in other, emerging, contexts of legal education.

The following discussion will suggest some of the many contributions which social sciences are making with respect to legal education, which they could make much more frequently and even more effectively given increased institutional and professional support for such curricular and pedagogical innovations. This article will not focus on how legal education can contribute to the social sciences, or how legal education can contribute to the goal of liberal education or the wider context of university communities and missions, or even on how social scientists would like legal education to be expanded. Rather, the focus of this article is on suggesting how the inclusion of social scientific perspectives on law could reduce the problems and gaps which legal scholars and legal organisations have themselves noted between legal education and the expressed needs of the legal profession. The article will then specifically consider the relevance of social science instruction for teaching or facilitating civics and public service; critical scholarship and reflective legal practice; professionalism and ethics; specialisation and multi-disciplinary practice; and skills training and orientation to legal practice.

Social scientific perspectives on law can complement more traditional law school pedagogies, either within the law school; within established programs of non-legal or pre-law education;3 or in other contexts such as paralegal education, joint degrees and continuing legal education. Thus students can gain valuable insights and skills relevant to legal education and legal careers in many educational settings, including settings in which law professors are largely unwilling or unable to teach, and in which social scientists are both willing and able to communicate knowledge and skills that have been identified by legal scholars, law schools and bar associations as relevant to the legal profession and legal education.

II  THE HISTORY OF SOCIAL SCIENCE IN LEGAL CURRICULA

There has always been some recognition in legal education, albeit often implicit, of the fundamental fact that law cannot be adequately understood in strictly legal terms.4 Both the understanding of case law and the understanding of statutory law can frequently involve considerations of historical context outside the legal realm. There is often a good deal of knowledge of political institutions involved in legal education; for example, with respect to the distinction between political and legal questions and the divergent roles of courts, legislatures and executives. In the United States (US), due largely to the influence of American legal realism, questions about whether and how the law can serve as an effective instrument of policy-making and governance have been part of academic legal discourse for many generations.5

During the last two generations, legal studies have further expanded due to two largely contemporaneous developments: expansion of ‘law and ____’ movement(s), and the rise of critical legal perspectives on law and legal education, drawing frequently upon social scientific themes such as inequality and ideology. Clark suggests, in the US context, that curricular reform beginning in the 1960s was in response to an influx of less acquiescent students.6 Some of the relevant developments have been observable in law school curricula in the form of occasional courses such as law and economics, law and society, legal history and policy analysis. These developments have also been observable in more occasional ways through references to critical legal studies, feminist jurisprudence and critical race theories of law, often within substantive courses addressing conventional legal doctrines. It remains true, however, that the relevance of social science in legal education is not well reflected in law school pedagogy and curricula.

This is not to say that relevant interdisciplinary scholars and courses cannot be found in many places, but such courses are rarely if ever treated as part of the core curriculum, let alone the first-year curriculum, and interdisciplinary credentials (such as advanced social science degrees) are rarely required of law school faculty members. The exclusion or marginality of social scientific contributions can also be taken as reflective of the limited ability of legal education to convey the complexity and importance of the relations between law and society, and the breadth of scholarship on legal phenomena.

There are certainly relevant variations across institutions, national borders, and historically, in the degree to which law students are exposed to social scientific knowledge and skills, but a general discussion is no less useful despite such variations. The fact that various readers will know much more about particular institutions or nations or historical developments than can or should be addressed here suggests that general comments can inspire or provoke more contextualised evaluation and consideration.7

One of the most relevant variations is the number of years of higher education required of law students, with the US being distinctive in its treatment of law as a graduate degree following a four-year undergraduate education. By contrast, European Union countries require from three to five years of academic training.8 Another consideration is that the US has produced a significant proportion of the interdisciplinary social scientific scholarship on law, and also a significant proportion of critical legal scholarship. Legal education in the US has also been subject to significant criticism and study, and has seen significant pedagogical developments such as the rise of clinical legal training and attention to skills training and theories of practice.9 In these respects, improving legal education by incorporating relevant social scientific instruction arguably should have been the most feasible in the US context, so the relative lack of development in this direction, to date, is significant in a comparative sense.

Arguably, legal education has suffered from a contradictory mission for as long as lawyers have tried to marry vocational training with university-based disciplinary education.10 The university affiliations of law schools and pedagogical reliance upon doctrinal analysis and the Socratic method of education have been crucial elements in the professionalisation of law. The professionalisation of law necessarily takes legal education beyond narrowly vocational interests in developing marketable legal skills, of the kind that were previously learned in apprenticeships.

For the last two generations especially, legal education has been criticised from many directions11 and for reasons that can be entirely contradictory. It is not difficult to find critiques of legal education as overly vocational, from those who want it to be more interdisciplinary, more critical, or more ethical. Nor is it difficult to find critiques of legal education as being insufficiently vocational, from those who want it to involve more skills training and to be more relevant to legal practice.

III LAW IS AN INTERDISCIPLINARY SUBJECT REQUIRING AN INTERDISCIPLINARY APPROACH

The basic premise of most arguments for multi- and inter-disciplinary legal studies (and by extension the relevance of such studies for legal education) is quite simply that legal phenomena and studies of legal phenomena are so various that they necessarily belie the artificial boundaries of established academic disciplines.12 Moreover, legal phenomena seem to be increasingly various and complex. With the rise of, for example, paralegal professions, competition between law firms and consulting firms for traditional legal work, increasing business interest in multi-disciplinary practice, and the increasing interest of law students in joint degrees, legal phenomena are arguably becoming inter-vocational as well as interdisciplinary. The discipline of law has never been up to the task of understanding law in all its facets, and this is becoming increasingly true and increasingly clear as distinctions between law, other vocations, professions and social systems become increasingly contested and confusing.13 While interdisciplinary scholarship has flourished and its relevance to legal education has not gone unnoticed, the incorporation of interdisciplinary teaching and learning into legal education has certainly not kept pace. Erwin Chemerinsky, Founding Dean of the law school at the University of California Irvine, observes:

The most important change in legal education since I was a law student thirty years ago is the recognition that law is inherently interdisciplinary … [but] [l]aw schools still do too little to bring these disciplines into their classes in a systematic way. Few schools, to my knowledge, make any coordinated effort to ensure that all students receive interdisciplinary instruction.14

Law schools have never attempted to study the full range of legal phenomena; rather, as Sarat observes, ‘[they] largely ignore broad regions of legal knowledge’.15 Morris describes the pedagogy of law as hermetic, suggesting that it needs to be increasingly interdisciplinary.16 It would not be appropriate for law schools as they are currently staffed to try to encompass the full range of legal studies,17 but there has been increasing recognition that traditional legal education, with its emphasis upon the analysis of legal doctrine, is too narrow a foundation for students’ subsequent professional careers. In a 1980 report, a Special Committee for a Study of Legal Education, associated with the American Bar Association, suggested an ambitious agenda for social science in legal education:

The interaction of law and social science is something with which the law student will want more than a passing familiarity. Ideally, this would include exposure to the methodology of the social sciences, including some statistics; the student should be equipped to exercise some critical judgment upon claims advanced by social scientists whether in economics, political science, sociology, psychology, or anthropology. Law is a social science. The other social sciences are vital to law, since law is preoccupied with human behavior and its implications.18

The need for a broader educational framework predictably comes to many scholars outside of law school, but it also occurs to law professors and law school deans. Richard Johnstone suggests that:

Learning about law involves seeing law as a phenomenon located in society and history, inter-connected with other political and cultural institutions … Legal phenomena can be studied and analyzed from all sorts of perspectives and legal education should be concerned with equipping students to perform these tasks.19

Charles Eisenmann, writing for the International Association of Legal Science in 1973, argues that ‘[l]aw teaching must necessarily be designed to convey an understanding of law in its totality, in all its aspects. It must aim and tend to cover every kind of problem relating to law.’20 Mark Tushnet, speaking about predicting how the law will be applied in particular circumstances, also offers relevant observations.21 Tushnet observes that case outcomes do have a predictability about them, but that there is a gap between the indeterminacy of the law and the predictability of legal outcomes. Tushnet observes further that the legal academy (in the US context) does not treat this gap as a pressing concern, but that the social sciences can be informative about how cases are resolved despite legal indeterminacy, including how they are resolved as if the outcomes were determined by applicable law.22

Another powerful argument for law student familiarity with the social sciences was offered by Bayless Manning, a past Dean of Stanford Law School. Manning suggested the ideal that a lawyer should have an awareness of the non-legal environment of legal issues:

By awareness of total non-legal environment, I refer to the first-class lawyer’s ability to comprehend the non-legal environment of the problem at hand, to evaluate the impact that non-legal considerations will have upon the outcome, and to perceive the ways in which the knowledge and insight of non-lawyers can be mobilized and brought to bear. Every legal problem arises in its own unique setting of economic and political considerations, historical and psychological forces; each legal situation raises its own problems of data accumulation, ordering, and weighting. The legal process is a part of a vast surrounding social process; the first-class lawyer never loses sight of that larger picture …23

It follows that lawyers should know when and how to call upon professionals from other disciplines, as Manning suggests. But it is also inherent in this ideal that the lawyer would have enough familiarity with the social sciences to know when another’s insights are relevant; whom to consult; what to ask of them; and how to employ the expertise in question.

More broadly, Packer and Ehrlich suggest that a proper study of law

focuses the student’s attention on the conception of a legal system; who operates in it, how they function, what impact they have, how the system changes, the impact the system has on other elements in our society, and vice versa. Here the effort is to give the student an idea of law as a social process, the functions it performs, the institutions involved, and how change takes place. It gives at least an introductory idea of the structures and processes involved in society’s efforts to shape and organize individual and group behavior — a view of law as an ordering process … a study of law opens up questions of how social ends and means interact and reveals the complications involved in attempting to create or recreate the ongoing, working institutions of a society. Theory and practice meet and interact. Values, ends, means, information, and theory all intersect. Such a study of law is not so much another discipline as an education in the relation of specific social problems to various sources of knowledge and modes of thought.24

This notion that the study of law is not one discipline, but rather the study of a substantive topic which is illuminated from a variety of disciplinary perspectives, is an insight worth preserving and implementing.

The knowledge and insight imparted by social science instruction in law may not always have an immediate payoff for law students in their careers, but can be helpful in a variety of practical as well as academic senses. A general knowledge-base in the social sciences can help students to maximise the professional benefits from a legal education and develop legal competence.25 Many employers/recruiters will appreciate lawyers with ‘meaningful exposure to broad societal issues’, as suggested by a report from the International Academy of Legal Studies in Business.26 Social science instruction in law also stands to contribute directly to students’ professional careers in that:

‘legal advice’ is rarely just that. The complexity of modern society increasingly creates … problems in which it is virtually impossible to separate the legal component from components more traditionally associated with other disciplines …27

These contentions will be supplemented with more specific discussions below.

IV  THE RELEVANCE OF SOCIAL SCIENCE PERSPECTIVES FOR PROMOTING CIVIC RESPONSIBILITY AND PUBLIC SERVICE

One of the most widely reported and discussed crises in legal education is the perceived failure of legal education to foster notions of civic responsibility and public service. Indeed, many suggest that even those law students who are motivated to study law partly for idealistic reasons of public service are frequently disabused of such notions before completing their degrees.28 Sarat argues, for example, that:

Law schools generally try hard to undo the naïve, innocent impulses of their entering students, in particular their impulse to think about law in moral or political terms. Much of the effort of law professors is devoted to differentiating law from moral reasoning or political argument, to focusing the mind of the would-be lawyer on the content of the positive law, and to teaching the skills of manipulating, distinguishing, and evading rules.29

Scheingold suggests a similar concern, noting that ‘law is not a parlor game, it is a social institution bound up with the most important dimensions of human freedom and oppression … the rule system is important primarily as it relates to societal goals; it is a means rather than an end.’30 Scheingold goes on to note that ‘lawyers are led to think of their services as a product which is sold rather than as a vital public necessity.’31 Liberal arts instruction in legal studies, according to Sarat, ‘provides an arena in which the complex, contingent, and varied ways in which law expresses, and/or represses, moral judgment and political position can be brought to the center of concern.’32 This is particularly true with respect to social scientific studies of law. Despite concerns to avoid indoctrinating students, and despite obstacles to teaching ‘civics’ such as the increasing consumerism and juridification of faculty–student relations,33 still the social sciences remain invaluable for engaging students with civic concerns. This is true whether engaging students means teaching them civic values, awakening an interest in questions of public life or exposing them to alternative perspectives on issues facing society and nation.

Law school education often does little to expand the understanding of law as a professional calling, and a form of public service and civic participation, for those students motivated primarily by salary and status. Another parallel concern is that law schools themselves are becoming increasingly corporate and vocational.34 The argument that legal education obfuscates the role of morality and politics in the law, and stunts or poisons students’ moral development with a servile careerism, is perhaps most associated with critical legal studies,35 critical race theory and feminist legal theory. More mainstream professional expressions of concern include increasing course offerings on professional responsibility and increasing opportunities for students to be exposed to clinical legal education, although these opportunities largely remain minimal and marginal (if not outright stigmatised) elements of legal education. The message that a lawyer’s responsibility is to represent clients and to handle legal business competently is a very ingrained element of legal education and professional ideology.36 This makes it a significant challenge to teach the ideals of civics and public service in the law school setting and within conventional law school coursework, in a way that would facilitate a broader sense of responsibility, whether this be understood as responsibility to the legal profession, to the legal system, to the public good, to justice or democracy, to underserved populations, or to other institutions, groups or principles of public life. But the difficulties of fostering such notions of civic responsibility and public service are astronomically greater due to law students’ lack of exposure to and engagement with social scientific research and discourse on law; the legal profession, law societies and bar associations; and legal education itself.

V CRITICAL SCHOLARSHIP AND REFLECTIVE LEGAL PRACTICE

A related concern shared by many critics of legal education, both outside and inside the legal profession, is that law students are not taught to question prevailing legal doctrine, established professional conventions, or the role of the legal profession in society. Not only is there an issue that students are not sufficiently exposed to critiques of legal doctrine and critical discussions of the legal profession but, more generally and importantly, law students are often not even led to reflect upon such issues. A legal education which is oriented to the professional status quo and the political and corporate establishment in an uninformed and unthinking manner leads naturally to a legal system staffed by practitioners who are neither critical nor particularly reflective about the social and political implications of the work they do, let alone the work that lawyers often avoid (pro bono work and staffing legal aid clinics, all varieties of public interest law, prosecution of white collar criminals, among other varieties). Johnstone suggests that law students ‘need to be able to “think like lawyers” and at the same time stand back and reflect on “how lawyers think”’.37 In 1983, Duncan Kennedy’s Legal Education and the Reproduction of Hierarchy brought critical legal studies to bear upon legal education. Kennedy suggested 20 years later that ‘the time for analysis and protest will come around again,’ implying that the time for critical scholarship had past, but certainly not for lack of problems to analyse and protest.38

The importance of understanding law in a critical and reflective manner is suggested by the ideological nature and function of law. As Granfield suggests, ‘[law] is a loose collection of propositions that constitute and reify ideas about such principles as rights, authority, obligations, and justice. Law then is ideological, and to study law … is to engage in a course study in ideology.’39 To be exposed to ideology in this manner without knowing that one is being exposed to ideology, without knowing what ideology is and what it does, would be indoctrination and would be inconsistent with any academic, liberal arts, or civic conception of legal education.

Trubek and Plager argue, for example, that ‘[l]egal studies research requires us to stand aside from the reproduction of practitioners, to stand aside from the way things are at the moment, free to question and criticise.’40 While not arguing that it is impossible to accomplish this goal in law school, they suggest that it is very difficult to achieve the distance needed to criticise. Trubek and Plager argue for ‘an alternative institution within the university … with the mission of producing knowledge about law.’41 Kahn makes a parallel call for a new discipline.42

While an alternative institution or a new discipline may be appealing or promising for a number of reasons, the reality for the vast majority of law students now and in the foreseeable future is that they have a much better chance of receiving this type of education either by continuing reforms within law schools, or by engaging in interdisciplinary studies which partly or completely step outside the law school curriculum into other available institutions and disciplines. In either case, existing social scientific approaches to law will be central, contributing the bulk of the empirical research relevant to a critical study of law and many of the available pedagogical resources and reference points, including much of the theory and criticism which would inevitably be involved. As Goodman and Silbey contend, the goal of liberal arts education should be that ‘concerns about money and power are, as much as possible, made topics, rather than determinants, of discussion.’43 If the role of money and power in the legal profession is to be made a topic of discussion, the relevance of social sciences such as economics, sociology and political science cannot be questioned.

Even central elements of ‘insider’ legal criticism, such as the indeterminacy of legal rules stressed by critical legal studies, cannot be properly understood without drawing extensively upon social scientific contributions such as those on ideologies and legitimacy (legal formalism as a legitimising ideology); professions (lawyers and judges as members of professions with economic, political and bureaucratic interests in portraying their work as applying pre-given rules in a neutral, scientific or mechanical fashion); and discretion (interpretation and application of legal rules as involving discretionary decision-making in institutional contexts). As Sarat notes:

When the indeterminacy of legal language is thus exposed, students confront law as something more than a system of rules. They see it as a system of human choices and moral or political judgments shaped, constrained by, and constructed out of social institutions and practices.44

This is a central lesson to be learned from critical legal studies; but the lesson would be rather superficial without being informed and illustrated by a range of social scientific insights and observations which reference the social institutions and practices referred to by Sarat. In addition, the cynicism which often results from legal education45 is due in part to the fact that many law school professors have more competence to teach the manipulation of legal rules or to critique legal ideologies than they have to educate students to understand or appreciate informal institutional processes and discretionary decision-making as involving much more than arbitrary, discriminatory or self-serving case handling.

Increasing the critical and reflective approaches to law in legal education would not only answer a perceived need, but would also contribute to a variety of more specific pedagogical goals which have been discussed in the literature on legal education. One consequence of such reforms would be a more effective and more interdisciplinary teaching of theory.46 Hunt notes that legal education could emulate the social sciences in trying to integrate theory throughout the curriculum at different levels of instruction as well as with respect to a variety of substantive topics.47 The theories of the social sciences themselves will be applicable to legal study in many cases, and could therefore serve as more than an illustration of how to teach theory, but also of many of the theories which are helpful for understanding legal phenomena. Exposure to social science would also provide experience with a variety of types of reasoning, including not only theoretical but also methodological reasoning from a variety of social sciences, which would stand to complement skills in legal reasoning and analysis.48

Another contribution consists of making legal education more accessible and more interesting to a variety of students, with non-traditional students arguably deserving special mention. As Banks observes:

Students bring their own meanings and ideological backgrounds, beliefs and histories with them to the classroom. These beliefs are suffused with their own class, race, ethnic, gender and sexuality-specific interests, through which they engage in learning and which colour and shape their needs and their understanding of information.49

Whether students are privileged or marginalised, they often learn more effectively by having their beliefs and their interests addressed rather than ignored. These beliefs and interests can be addressed by acknowledging the relevance of social identities and group relations for the understanding of the legal profession and the legal system,50 and by covering social issues and social problems which many students will be motivated to study and discuss.51 Such issues are not merely ‘hooks’ to catch students’ attention — they are also issues which can enrich teaching and learning about law and the legal profession, because they represent topics where personal interests and legal scholarship are likely to overlap in interesting and informative ways.

Legal education therefore stands to benefit greatly from increasingly critical and reflective approaches to law. Critical and reflective questions about law will speak to or increase many students’ motivation to learn,52 and they will also lead to a higher quality of graduates. More critical and reflective graduates will be capable not only of solving conventional legal problems instrumentally, but also of reflective practice involving a greater ability to draw connections between general knowledge and particular cases, and increasing potential for adapting previous knowledge and skills to new situations.53 Perhaps most importantly, cultivating critical and reflective skills will counteract a widely perceived shortcoming in legal education. Legal scholarship in the social sciences, among other liberal arts disciplines, seeks ‘to reconnect what professional legal education seeks to separate’,54 with beneficial results for legal education and the legal profession.

VI PROFESSIONALISM AND ETHICS

A related set of concerns over legal education has to do with legal professionalism and ethics. Lawyers have long been criticised for insufficient respect for ethics, a concern which has been expressed more and more frequently with reference to the ethical codes of professional associations and the more informal ethical expectations of society for lawyers as members of a profession. And while it is undeniable that the law has become more and more professionalised, including the development of ethical codes for the profession, it is much less clear that the professionalisation of law has led to a proportionally greater respect for ethics in legal practice. The conference program introducing a plenary session at the 1999 meeting of the Association of American Law Schools stated:

Concerns about professionalism have never been greater, both within and outside the bar. Recent commentary describes a profession ‘lost,’ ‘betrayed,’ ‘in crisis,’ or ‘in decline.’ Most Americans register serious doubts about lawyers’ honesty, integrity, and compassion. And most lawyers perceive significant problems in legal practice, such as increasing adversarial abuses; chronic inadequacies in bar regulatory processes; persistent bias based on race, gender, and sexual orientation; and insufficient access to legal services for low- and middle-income citizens.55

More recently, the Carnegie Foundation report, Educating Lawyers, suggests that ‘[a] focus on the formation of professionals would give renewed prominence to the ideals and commitments that have historically defined the legal profession in America.’56 Apropos of ethics, this report states ‘[t]here is evidence that law school typically blares a set of salient, if unintentional, messages that undercut the likely success of efforts to make students more attentive to ethical matters.’57 Another recent review of legal education in the US asserts that ‘[l]aw schools do not currently foster professional conduct; just the opposite. Some fundamental changes are needed if law schools want to teach professionalism effectively.’58

These concerns are by no means limited to the US. Economides reports that ‘every recent major review of legal education throughout the common law world has called upon law schools to promote understanding of legal ethics and fundamental lawyering values at all stages of the educational continuum.’59

Although many law schools have added various courses in professional responsibility and/or ethics, these steps have not sufficiently addressed the relevant concerns. The content, even when it is mandatory, is generally too little, too late, and also too marginal to the course of legal education. Bell argues that ‘[v]iewed more generally ethics is about encouraging self-critical awareness that is appropriate to any reflective professional.’60 Questions of instruction in ethics and professionalism therefore overlap with questions about teaching critical perspectives and fostering reflective practitioners of the law. Neither can be taught effectively without the other, and neither can be taught by an add-on course as if these questions were supplemental.61

Although many of the concerns about professionalism and ethics in legal education have been voiced by those inside the legal profession and from within the ranks of law faculties, and although some steps have been taken within law schools to combat this problem, social science instruction is a resource which has largely been left unexplored. Yet social science is invaluable both for informing students of the social facts and conditions which occasion ethical decision-making, and for offering them a rigorous and informative framework in which to discuss professionalism and ethics. Henderson notes that:

To effectively act in accordance with professional norms, students must have basic knowledge of the role of law and lawyers in our society, the rules of professional conduct, and the reasons for those rules.62

While bar associations and other specifically legal institutions occasionally sponsor or facilitate research into such questions, and such research is at times recommended as having pedagogical value,63 it is the social sciences including sociology and political science which offer the bulk of the relevant research.

With respect to social scientific research, the teaching of professional responsibility and ethics is greatly enhanced by factual information relating to such matters; for example, how few legal services are available to the poor or the middle class; how much these legal services are needed; the social costs of white collar crime and political corruption; the institutional environments and pressures which facilitate or motivate unethical behaviour.

With respect to teaching professionalism, it is important to recognise that the study of professions is a social scientific endeavour. As Packer and Ehrlich note, law professors often have only a minimal understanding of what a profession is,64 and they may even be ‘remarkably vague and inarticulate about the purposes of law school’.65 David Wilkins goes so far as to suggest that ‘the law school’s systematic and pervasive failure to study and to teach about the profession’ amounts to an ethical failure to serve students, the bar and society.66 While social scientists are generally not members of the legal profession and therefore lack ‘standing’ in many respects to teach about the content of law or how to do legal work, lawyers and law professors are generally not familiar with social scientific studies of their own profession which do discuss such issues as: what makes law a profession, the role of lawyers and the legal profession in society, and the role of legal education and law schools in the professionalisation of legal work (including the important relationships between law, politics, and economics).

Lawyers and legal scholars can be very good at talking and writing about values, but legal education arguably does much more to prepare students to discuss values rhetorically than to hold or practice values. Indeed, a common complaint about legal education is not just that it does not adequately teach values, but that it essentially unteaches values.67 The MacCrate Report,68 as a good example, illustrates both the importance of values for the legal profession, and the tendency to emphasise service to clients, which can certainly lead to a narrow or superficial conception of professional values.69 The MacCrate Report delineates broad fundamental values of the profession, especially the second set of values they discuss:

(2) As a member of a profession that bears special responsibilities for the quality of justice, a lawyer should be committed to values of: (2.1) Promoting justice, fairness, and morality in one’s own daily practice; (2.2) Contributing to the profession’s fulfillment of its responsibility to ensure that adequate legal services are provided to those who cannot afford to pay for them; (2.3) Contributing to the profession’s fulfillment of its responsibility to enhance the capacity of law and legal institutions to do justice.

The third set of values has to do with improving the profession, including through ‘striving to rid the profession of bias … and to rectify the effects of these biases.’70 Social science education can certainly contribute to the training and professional development of competent lawyers. More obviously, social sciences provide invaluable resources for understanding problems and controversies in legal systems and the legal profession such as access to legal services, differential treatment of white collar defendants versus street criminals, the representation of women and minorities in the legal profession and throughout the legal system, and the uses and abuses of discretion. In a follow-up article, MacCrate has noted that ‘continuing attention and effort need to be devoted to improving law school instruction in the values that lend purpose to a law school education and the profession for which it prepares.’71

Cramton puts the matter baldly but incisively when he argues:

My defense for putting larger normative questions on our teaching agenda rests on a notion that a university law school has a broader function than a cooking institute, a barber college, or some other trade-oriented technical school.72

Continuing, he observes that:

To the extent that law students and lawyers become single-mindedly absorbed in status and gain, law ceases to be a profession, and the law school becomes merely another training school. As law, medicine, and other professions become commercialised, we experience what can only be called the deprofessionalisation of the professions.73

The social sciences, and especially sociology, have addressed the professionalisation of occupations including legal and criminal justice occupations, and are thereby leading sources of insight on the political, economic, cultural and other forces at play in occupational and professional domains, including those that undermine professional ideals.

The reflections of Goldsmith on his own professional education and acculturation in the Australian system are very illustrative of the gap in legal education which could be filled by greater attention to social scientific scholarship on the law. Goldsmith recalls of his legal education that, ‘for the most part, the connections between “thinking like a lawyer” and the rest of human experience were left hanging or left out completely’.74 He found that his legal education lacked the exposure to the sociology of the legal profession which would have prepared him better for the process of finding employment. Further, once he found employment, he ran afoul of pressure to persuade his criminal clients to plead guilty more often, which lesson he admits he might have learned much more quickly had he been exposed to relevant literature including Blumberg’s famous article on the practice of law as a confidence game, which introduces students to the importance of the courtroom work-group.75 Drawing on these and other experiences, Goldsmith observes that:

the relationship between traditional legal education and legal knowledge has been, and continues to be in many quarters, strangely perverse. While lawyers in practice operate largely according to a body of shared, informal legal knowledge, there has been little or no pressure from either the student consumers or the prospective employers of law graduates, in particular the profession, to acknowledge the value of it in law school.76

VII SPECIALISATION AND MULTI-DISCIPLINARY PRACTICE

In their report to the Carnegie Commission on Higher Education, Packer and Ehrlich argue that:

up to the present, legal education and admissions to the bar and bar organization have combined to force the profession, at least on the surface, into a common mold, based largely on obsolescent patterns of practice. This has greatly inhibited the formal recognition … that lawyers, after all, are not members of a homogenous profession … We believe that the supposed homogeneity is spurious and that the profession, including education for it, must respond to existing diversity and to the pressure for more and must acknowledge the need for specialization and the development of paraprofessional careers. These themes will recur.77

These themes recur not only in Packer and Ehrlich’s report, but also in discussions of legal education in the US and abroad, despite some progress such as increasing opportunities for joint degrees and paralegal degrees.

Allen observes that traditional legal research is relevant but itself insufficient for understanding law as a part of public policy, and concludes that ‘the ideal of law as public policy may steer us, however slowly, to those departments of the university in which methodologies for the study and evaluation of public policy have long been developing.’78 He also states that ‘the demands on legal education will become increasingly numerous and diverse’.79 Allen calls for law schools to become more pluralistic communities, while acknowledging that such a prospect would meet with resistance.80 The relevance or need for more diverse, interdisciplinary legal education has been noted by a variety of others, in a variety of contexts.81

Wilkins, for example, argues that recent curricular innovations in legal education are still insufficient to close the gap between legal education and legal practice.82 Wilkins calls for:

systematic and rigorous quantitative and qualitative research about the profession’s institutions, organizations, norms, and practices, and how each of these ‘arenas of professionalism’ is evolving — and should evolve — to confront the demands of an increasingly globalized market for legal services. This research, in turn, should form the basis for a whole new kind of pedagogy. At its core, this pedagogy should emphasize how organizational structures, norms, and practices shape individual careers and influence the practical meaning of substantive legal rules and professional commitments.83

Wilkins implies that law schools do relatively little to prepare their students for legal careers, but even less do they help law students understand ‘the large-scale economic, social and cultural forces that are reshaping the profession their students are about to enter’.84

More recently, Daly has commented on the rise of multi-disciplinary practice, which has occurred largely outside the context of law firms, posing a challenge to law firms, the legal profession, and legal education.85 Daly’s overarching concern is that ‘[t]he complexity of modern society increasingly creates a superabundance of problems in which it is virtually impossible to separate the legal component from components more traditionally associated with other disciplines.’86 In practical terms, she notes the blurring of boundaries between law and other disciplines, and increasing needs of clients for an integration of legal and non-legal advice.87 She remarks that ‘[t]he professional service firms … increasingly offer services that mimic those that law firms have traditionally offered corporate clients, such as merger and acquisition advice, human resources counseling, and litigation support.’88 On another front, Daly observes that ‘[l]awyers who provide services to individuals and small businesses see their client base shrinking as financial planners, accountants, banks, and social workers offer services and products remarkably similar to those traditionally labeled “legal”.’89 She calls for a broadening of legal education to ‘provide more emphasis on teaching and research about legal careers and the different segments of the legal profession’, and more regular focus on interdisciplinary as well as theoretical training.90

Duxbury makes a complementary point, that the law and society movement has made impressive and important contributions in showing ‘how the operation of law is very different from what one would expect were one only to study the law itself’,91 but he also expresses regret that the contributions of law and society scholarship have been undervalued in traditional legal scholarship.

VIII SKILLS TRAINING AND ORIENTATION TO LEGAL PRACTICE

The blurring of boundaries between legal and other varieties of knowledge and skill, associated with increasing diversity and specialisation in legal careers, and the increasing importance of multi-disciplinary practice, has as a corollary that traditional legal education risks becoming further and further removed from relevant skills training and the realities of professional legal practice. This is true despite increasing emphasis on skills-training and clinical courses,92 since changes in the legal profession can certainly outpace changes in legal curricula. A concern with a gap between legal education and legal practice is a longstanding concern which persists93 despite the curricular innovations which have been introduced at various times in various national contexts.

The MacCrate Report on Legal Education and Professional Development, compiled by the American Bar Association section of Legal Education and Admissions to the Bar, mentions many skills which could arguably be cultivated more effectively by interdisciplinary training.94 The report discusses 10 sets of skills under the rubric of fundamental lawyering skills, only two of which seem to be unique to traditional legal education (being skills involving the identification of legal issues and case litigation). Other skills which are deemed fundamental lawyering skills include the ability to identify and respond to problems, ‘knowledge of the nature of legal rules and institutions’, knowledge of ethics, and skills relevant to factual investigation, effective communication, negotiation, and efficient management. The more recent Carnegie Foundation report, Educating Lawyers, referring primarily but not exclusively to US legal education, notes ‘the increasingly urgent need to bridge the gap between analytical and practical knowledge.’95 Another recent report from the US states simply that ‘most law schools are not committed to preparing students for practice.’96

With respect to the handling of factual questions and issues in particular, traditional legal education and legal practice have both been criticised as deficient. Twining refers to a widely acknowledged imbalance ‘between the amount of attention that is devoted to disputed questions of law in upper courts and the amount that is devoted to disputed questions of fact in trials at first instance, in other tribunals, and in legal processes generally.’97 He later remarks on the orthodox tradition in evidence scholarship that it has ‘devoted far more attention to the rules of admissibility than to questions about the collection, processing, presentation, and weighting of information that reaches the decision makers.’98 Ten years later Twining welcomed a ‘new evidence scholarship’, including increasing use of statistical arguments in court, but he was unfortunately optimistic when he predicted that standard conceptions of lawyerly competence would include mastery of economics and statistics by the year 2000.99

Addressing overlapping concerns about the gaps in legal education, Wilkins suggests that legal education would benefit from the adoption of the case study method as used in business school and public policy schools. He notes that such case studies ‘would go a long way toward helping law students learn to identify and resolve the ethical, strategic, career, and policy issues that they will face as practitioners.’100 Such case studies would address the need for greater skills training, in coordination with a more meaningful introduction to the variety of legal practice.

At the same time as legal practice has become more diverse and arguably less distinctive vis-à-vis other professional services, the study of the legal profession and legal institutions by social scientists and others outside the law school setting has expanded considerably. These interdisciplinary studies have generally not dealt with skills training101 so much as a variety of other topics which, while typically not vocational in interest, very often offer valuable lessons about the law which would be useful in a legal education. Teitelbaum corrects the tendency to think of relevant social science as involving only evaluations of the social impacts of law, although that continues to be an important tradition of social science research. He observes that:

studies of municipal courts, juvenile courts, police departments, and administrative agencies … tell us something about official actors, about the context in which they operate, about the cases and clients they treat, about the formal and informal strategies they employ to manage their responsibilities, about the power relationships that characterize agency function, and about the costs to the agency, parties, and professional personnel of resort to that agency. From such research we have learned something, but not enough, about the costs of litigation and its relative unavailability to various communities, the independent interests of law-dispensing agencies which are extrinsic to formal assumptions about the administration of law, the ways in which discretion mediates between formal requirements and institutional interests, and the power systematically wielded in litigative settings by institutional, as opposed to individual, participants.102

As Trubek and Plager remark about the narrow nature of legal education, ‘[p]art of the reason law schools have been the problem has been the definition of the curriculum as the teaching of rules, not their social meaning.’103 They argue that ‘[i]f we thought of legal education as teaching lawyers about what happens, how things work, what works and does not work, then the legal studies approach would fit more easily into the curriculum.’104 This observation dovetails nicely with Johnstone’s remark that ‘[t]raditional legal education has required students to apply legal principles to facts but has ignored the more socio-legal issues relating to the way that the law is implemented or enforced in practice.’105 Social science scholarship thus stands to contribute to legal education in a variety of manners, from technical and applied skills such as how to use empirical research methods in gathering evidence or assessing claims, to illuminating such questions as the impacts of law on clients and society, the lived realities of legal practice, the social organisation of the legal profession, the role of the lawyer and the legal profession in society, and the ideological dimensions of legal education, even predicting the contours of future legal developments,106 among many others.

IX HAS THERE BEEN NO PROGRESS?

The persistent and significant criticism of legal education, observable for example with respect to the US, the UK, Australia and Canada, does not mean that no progress has been made or that no prospects exist. Overall, however, the positive developments seem to be either marginal features of legal education or vulnerable to backsliding, or both. For example, socio-legal scholarship seems to have been institutionalised in UK law schools more so than in other national contexts, but Collier observes that ‘there is, at best, a patchy and minimal training program in socio-legal methods’ and the institutionalisation of socio-legal scholarship, especially of a more critical or theoretical variety, is by no means secure in the face of new economic and administrative pressures on higher education.107 Cownie also documents the institutionalisation of socio-legal scholars in British law schools, but then notes that a significant number of respondents in her study of a law faculty were concerned that law students were not being introduced to other disciplines relevant for studying law.108

Writing from the US, Connolly notes that ‘many law schools have increased the number of interdisciplinary classes in the last two decades’ but also notes that ‘interdisciplinary work can make instructors feel marginalised’ and notes that dual degree and specialised programs offering interdisciplinary training ‘reach a limited number of students’.109 Referring to the impact of the MacCrate report and other bar association efforts on American legal education, Pearce argues that ‘[a]side from generating a professionalism industry, the professionalism campaign has had little or no effect on how lawyers understand their role or how the public perceives lawyers.’110

Writing largely about the Australian context, Thornton notes that, despite the intellectual vibrancy of legal scholarship since the 1970s, ‘the new scholarship remained marginal to the primary purpose of the law school, that is, the training of legal professionals’.111 She notes also the reversion of a number of law schools to a ‘straight’ law degree, at the expense of the broader education that had been emphasised for a period, and the negative influence of market pressures on critical legal scholars.112

So, despite increased prominence and availability of interdisciplinary scholarship, and despite the large number of legal scholars oriented to social scientific theories, themes or methods, there is an understanding, conveyed repeatedly in professional discourse and literature, that the social sciences are not well integrated into legal education. Where social scientific instruction has been made available, for example, through elective courses, selection of faculty mentors, or specialised degree programs, it is typically not required and thus has been exceptional.

X WHERE TO FROM HERE?

What opportunities are there for infusing additional social scientific content and insight into legal education? The opportunities will naturally vary across national and institutional contexts, but it may be helpful to succinctly suggest a wide variety of opportunities, hopefully facilitating recognition that in most if not all institutional and national contexts, at least several opportunities may be feasible.

A first consideration is what can occur within law schools, and in many cases there could simply be further development of practices such as hiring faculty members with social science credentials, offering more electives with social science content within law school and/or facilitating coursework in social science departments, offering more joint degree or multi-disciplinary programs or putting more resources towards those already existing. Law libraries and librarians could potentially play a significant role in providing law professors and law students with relevant resources and guidance. Textbook or casebook authors and publishers could provide a great service by providing law faculties with more interdisciplinary resources in the form of pedagogical materials that offer social scientific contributions without presupposing prior social scientific training by students or faculty. The increasing integration of social scientific scholarship into law schools could also be supported by expanding the variety of initiatives related to faculty professional development and curricular development. Ultimately, the possibility of integrating social scientific contributions into first year and required courses suggests a vital opportunity to recognise social science as a relevant resource for accomplishing the basic pedagogical and professional objectives of law school; social science is much more than another flavour among the variety of elective courses, faculty advisors or specialised degree programs available to students.

Law schools certainly have an important role to play in the evolution of legal education, but as currently organised and staffed, their efforts would predictably be slow and incomplete relative to both the critiques of legal education and the benefits of an increasingly inter-disciplinary legal education. Part of the constraint is simply the limited time students spend in any one degree program and the limited number of courses they can take. Other contexts and opportunities of legal education need to be considered as complementary to the experiences and functions of law school. In the US, where law students take four years of undergraduate coursework prior to law school, the institutional timing and location of potential interdisciplinary legal education is a relatively easy question.113 In other national contexts, as well as in the US, additional opportunities for exposure to social scientific scholarship could involve greater use and diversity of continuing legal education, and potentially on-the-job-training programs as well. Of course, the existence of paralegal professionals and paralegal training programs suggests another important venue and resource for integrating social science scholarship into legal education, broadly conceived.

When we think of opportunities for making legal education more interdisciplinary, then, we need to think of law school courses; law school faculty; law school libraries; law school textbooks; and also beyond the confines of law school, looking to pre-law education; joint-degree and multi-disciplinary programs; continuing legal education; on-the-job training; and paralegal training. Wherever people do legal work, whether as lawyers, paralegals, or judges, their work stands to benefit from interdisciplinary legal education and training, and this can be facilitated by many means in many types of educational and professional settings.

XI CONCLUSION

Legal education is too often circumscribed by a narrow professional ideology about what type of education is relevant to the study of law and the practice of law. It is too rarely involved in the type of broad and critical self-examination of the law and the legal profession that might enable legal education and educational institutions to develop and demonstrate much-needed autonomy with respect to the most immediate pressures of the profession — the state and the market.114 Such self-examination, Goldsmith observes, ‘is just as vital to a vibrant and healthy profession as it is to the values of the university or indeed to what might be considered the public interest.’115 It is precisely because the law is in many important respects not independent and not autonomous with respect to social facts and social institutions, and is itself a social fact and social institution, that legal education cannot be independent and autonomous from relevant social scientific scholarship on legal institutions, legal personnel, legal processes, legal education, and other legal phenomena.

Legal scholarship and legal education have, to some degree, although very inconsistently, acknowledged and incorporated social scientific concerns or social scientific scholarship into legal scholarship and legal education. Different schools of legal thought have raised social scientific issues about the effectiveness of law, or the ideological nature of law, or the way law works in practice. These issues range from legal realism to critical legal studies and other critical approaches, to the new interest in ‘empirical legal studies’ (which have a much longer and richer history than this novel label). The degree of interdisciplinary social scientific and socio-legal scholarship and learning actually incorporated within legal education has, by comparison, been extremely modest. For example, Allen suggests that the social realist agenda has failed to significantly impact research and teaching in law schools.116 Duxbury implies that the ‘outsider’ perspectives in legal scholarship, such as Gay-legal, Latino and critical race literatures are largely theoretical in nature and risk ‘losing their shine’ if they do not evolve into ambitious empirical projects.117 Getman suggests that even the interests of legal scholars in economics, political science and critical legal studies do not generally or necessarily translate into empirical legal scholarship.118 Of the law professors and legal scholars who do explore empirical issues, the exploration is not always sustained, and can amount to no more than what Rhode refers to as ‘armchair empiricism’ centred on anecdotal data.119 Other relevant contributions from the social sciences, including theoretical and critical treatments of law as well as empirical scholarship, are also liable to be neglected. Legal scholars’ attention to social science is therefore not only too infrequent, but when it does happen it does not necessarily go beyond an interdisciplinary citation, in the manner of tipping the hat towards the boundaries of legal scholarship. The real-world complexity and importance of law requires that law be the subject of interdisciplinary scholarship, and a corollary of this is that legal education needs to become much more interdisciplinary.

The often-cited ‘gap’ between legal education and practice points not just to a professional concern with legal training in line with vocational interests and pressures, but also to an academic and humanistic concern that legal education fails to incorporate much available scholarly knowledge about legal institutions, legal professions, and legal work. While legal education has traditionally emphasised legal doctrine and ‘law on the books’, there are both professional and scholarly reasons to pay more respectful attention to the social context of law, and to law in action. The social sciences stand to teach law students much more about the practical realities of their profession, and illuminate these practical realities in a broader, more reflective and critical manner. The challenge will be to identify the opportunities to integrate social scientific contributions more extensively and consistently into legal education. This will likely involve taking a longer and more integrative view of when legal education might start, how long it can continue, and the diversity of faculty, degree programs and institutions which might be involved. There is clearly room for improvement in legal education, and much social scientific work that speaks to one or another challenge to legal education, so perhaps it is not unrealistic to hope that the future of legal education will see increasing integration and cooperation across disciplinary and institutional boundaries.


[*] Associate Professor, Faculty of Law, Monash University. The author acknowledges the support of the Victorian Law Foundation who provided a small grant to assist in the research for this paper, and Abdul Mohamed Rahman Saleh, who provided research assistance under the terms of the grant.

[1] The Legal Profession (Admission) Rules 2008 (Vic). The proposed changes are discussed in Gaye Lansdell and Rachel Chrapot, ‘Training New Lawyers: Reflections and Future Directions for Training Victorian Lawyers’ (2007) 1 Alternative Law Journal Monograph 1 77, 80–3.

[2] Department of Justice (Victoria), Review of Legal Education Report: Pre-Admission and Continuing Legal Education (2006).

[3] PLT can be the final stage of law qualifications for students wishing to practise law. Historically, this stage has either been fulfilled by articles of clerkships or traineeships and/or by completion of a course covering practical skills and competencies across common legal transactional areas. Such courses may be offered by universities or by private organisations. The range of Australian courses is set out in: Department of Justice (Victoria), above n 2, app.

[4] Department of Justice (Victoria), above n 2, 58.

[5] Trevor Farrow, ‘Sustainable Professionalism’ (2008) 46 Osgoode Hall Law Journal 51, 54; Margaret Thornton, ‘The Law School, the Market and the New Knowledge Economy’ (2007) 17(1–[1991] LegEdRev 1; 2) Legal Education Review 1, 18.

[6] This culminated in the release of the ‘Pearce Report’ in 1987 which recommended major changes to the study of law in Australia: Dennis Pearce, Enid Campbell and Don Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (A Summary) (1987).

[7] Marlene Le Brun and Richard Johnstone, The Quiet Revolution: Improving Student Learning in Law (1994).

[8] It was during this time that many university-based legal practice courses were established at, for example, Monash University, Flinders University, University of Wollongong, and University of Western Sydney. Many of these courses worked in tandem with the traditional law degree, allowing students to enrol in PLT in their final year of law studies. The SCALES legal clinic at Murdoch University (first established in the late 1990s) was also born out of this era.

[9] Expressed by his Honour Chief Justice French of the High Court of Australia in ‘Swapping Ideas: The Academy, the Judiciary and the Profession’ (Paper presented at the Australian Academy of Law 2008 Symposium Series, Melbourne, Victoria, 1 December 2008) 13–21. This view has also been expressed in the US in the ‘Carnegie Report’ released in 2007: William Sullivan et al, Educating Lawyers: Preparation for the Profession of Law (2007) 6, 94, 243 (Carnegie Report). See also David Chavkin, ‘Experience is the Only Teacher: Meeting the Challenge of the Carnegie Foundation Report’ (2008) 16 Washington C L Research Paper 2, 23–4.

[10] For example, there have been changes to curriculum coverage, assessment modes, attendance statistics due to the posting of materials online and associated declines in teacher–student contact: see Margaret Thornton, ‘The Idea of the University and the Contemporary Legal Academy’ [2004] SydLawRw 24; (2004) 26 Sydney Law Review 481, 483–4; Thornton, ‘The Law School, the Market and the New Knowledge Economy’, above n 5, 1, 10–15; John Tarrant, ‘Teaching Time-Savvy Students’ (2007) 13 James Cook University Review 64, 66.

[11] In terms of numbers of students, there were 11,254 enrolled in law in 1984: Dennis Pearce, Enid Campbell and Don Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (1987) vol 2, 447. In 2000, there were 36,331 enrolled in law and legal studies: Department of Education, Training and Youth Affairs, Higher Education Students Time Series Tables: Selected Higher Education Statistics 2000 (2000). The increasing student body in law in Victoria is discussed in Department of Justice (Victoria), above n 2, 24.

[12] Michael Geist, ‘Where Can You Go Today? The Computerization of Legal Education from Workbooks to the Web’ (1997) 11 Harvard Journal of Law and Technology 141, 143–4; Andrew Smith, Peter Ling and Doug Hill, ‘Adoption of Multiple Modes of Delivery in Australian Universities’ (2006) 3(2) Journal of University Teaching and Learning Practice 67, 68; Tarrant, above n 10, 64.

[13] Vivienne Brand, ‘Decline in the Reform of Law Teaching? The Impact of Policy Reforms in Tertiary Education’ (1999) Legal Education Review 109, 139–40; Mary Keyes and Richard Johnstone, ‘Changing Legal Education: Rhetoric, Reality and Prospects for the Future’ [2004] SydLawRw 26; (2004) 26(4) Sydney Law Review 537, 538; Thornton, ‘The Idea of the University and the Contemporary Legal Academy’, above n 10, 484. The Monash PDLP ceased in 2009 due, in part, to these factors. Prior to this in 2007 the Law School also withdrew its Skills, Ethics and Research courses (SERs), removing key vocational elements from the curriculum.

[14] Roger Burridge and Julian Webb, ‘The Values of Common Law Education: Rethinking Rules, Responsibilities, Relationships and Roles in Law Schools’ (2007) 10(1) Legal Ethics 72, 74–5.

[15] John Zerelli, ‘Reflections on Legal Education and Philosophy: The Critical Role of Theory in Practice’ (2007) 1– 2 Legal Education Review 103, 107.

[16] Thornton, ‘The Law School, the Market and the New Knowledge Economy’, above n 5, 7; Tarrant, above n 10, 66; Zerelli, above n 15, 107.

[17] PLT began in Australia in the early 1970s (at approximately the same time that the first distance learning courses were set up at the Australian National University). Nearly all jurisdictions followed suit, with the exception of Western Australia and the Northern Territory: see Julie Pastellas and Kay Maxwell, ‘Blending Educational Tools and Strategies: Integrating Online Learning in Practical Legal Training Programs’ (Paper presented at OLT-2005 Conference, Queensland University of Technology, Brisbane, Queensland, 27 September 2005) 201, 202.

[18] As reflected in Monash University, Course Handbook 2008, Postgraduate Diploma of Legal Practice Skills and Ethics (2008) 6. See also Department of Justice (Victoria), above n 2. The course content for the PDLP was taken from Australasian Professional Legal Education Council, Competency Standards for Entry Level Lawyers (first published 2000, revised ed, 2002) (APLEC Competencies), which reflects the common design of PLT courses across Australia.

[19] Landmark cases have highlighted the imperfection of lawyers: White Industries v Flower and Hart (a firm) [1998] FCA 806; [1998] 156 ALR 169; McCabe v British American Tobacco [2002] VSCA 197; Legal Services Commissioner v Mullins [2006] LPT 012. Deficient legal education has been blamed for rogue lawyers (on Watergate, see Andrew Watson, ‘Lawyers and Professionalism: A Further Psychiatric Perspective on Legal Education’ (1975) 8 Journal Legal Reference 248, n 3). As a response, in part, to the public concern about lawyers there have been changes to some admission requirements. For example, under the Legal Profession (Admission) Rules 2008 (Vic), applicants for admission in Victoria must provide a report by an academic institution as to any academic misconduct (r 5.02(1)(c)(v)) and a police criminal record check (r 5.02(1)(iv)).

[20] APLEC Competencies, above n 18. See also Department of Justice (Victoria), above n 2, ch 8 for discussion of more rigorous continuing professional development requirements across Australian States and Territories.

[21] Pastellas and Maxwell, above n 17, 202.

[22] In 2005, the Victorian Council of Legal Education expressed concern about the introduction of online courses for pre-admission training in Victoria: see Department of Justice (Victoria), above n 2, 58.

[23] American Bar Association (ABA), Legal Education and Professional Development: Report of the Task Force on Law Schools and the Profession (1992) (MacCrate Report).

[24] In the context of the MacCrate Report, the obligation to pervasively educate future lawyers in skills and ethics is clear: Deborah Rhode, ‘Ethics by the Pervasive Method’ (1992) 42(3) Journal of Legal Education 31, 31.

[25] Diana Gleason, Distance Education in Law School: The Train has Left the Station (Research Paper, University of Nevada Las Vegas, 2009) 1, 3–4.

[26] This was certainly one of the driving forces in the establishment of the Monash PDLP online course: Submission of Dean of Monash Law to Chairperson, Council of Legal Education, Victoria, 13 December 2004.

[27] Gary Tamsitt and Lynn Du Moulin, ‘The PLT Revolution’ Lawyers Weekly (Sydney), 17 September 2004, 12, 13.

[28] Legal practice is now characterised by an increasing number of large multi-state corporate law firms, an increase in in-house lawyers and specialist law firms and client cells, whereas there has been a decline in the generalist firms. Innovation in the form of online systems both in and out of court is increasing but at the same time there is also increasing pressure on lawyers raising time–life balance issues. See examples of this as discussed in Tamsitt and Du Moulin: ibid; Richard Abel, ‘The Decline of Professionalism’ (1986) 49 Modern Law Review 1; Peter Martin, ‘Information Technology and US Legal Education: Opportunities, Challenges, and Threats’ (2002) 54(2) Journal of Legal Education 509; Colin James, ‘“Lawyers” Well-Being and Professional Legal Education’ (2008) 1 Law Teacher 85.

[29] Roy Stuckey, ‘Preparing Students to Practice Law: A Global Problem in Need of Global Solutions’ (2002) 43 South Texas Law Review 649, 660–2.

[30] Smith, Ling and Hill, above n 12, 68.

[31] Rebecca Enyon, ‘The Use of ICTs for Teaching and Learning in Law Education: Some Innovators’ Perspectives’ (2006) 3 Web Journal of Current Legal Issues 1, 5; David Poyton, ‘Integrating C & IT into the Delivery of a Law Module: A Reflective Look at Two Postgraduate Modules Delivered in the 2000/2001 Academic Year’ (2001) 3 Journal of Information, Law, and Technology <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_3/poyton> at 23 December 2009.

[32] For references dedicated to the discussion of this emerging phenomenon, see Terry Flew, New Media — An Introduction (2002); Chris Jones, Maria Zenios and Jill Griffiths, Academic Use of Digital Resources: Disciplinary Differences and the Issue of Progression (Paper presented at the Fourth International Conference on Networked Learning, Sheffield University, 5-7 April, 2004); Pat Maier, Using Technology in Learning and Teaching (1998); Peter Massingham and Tony Herrington, ‘Does Attendance Matter? An Examination of Student Attitudes, Participation, Performance and Attendance’ (2006) 3(2) Journal of University Teaching and Learning Practice 82, 85.

[33] Kellie Harpley, ‘The More Things Change’, Lawyers Weekly (Sydney), 24 February 2006, 18–20.

[34] Anne Ditcher and Sally Hunter, ‘The Instrumental Student: An Increasing Problem?’ in Lesley Richardson and John Lidstone (eds), Flexible Learning for a Flexible Society — Proceedings of ASET-HERDSA 2000 Conference, Toowoomba, Qld, 2–5 July 2000 (2000) 202, 202; Sara Dolnicar, ‘What Makes Students Attend Lectures? The Shift Towards Pragmatism in Undergraduate Lecture Attendance’ in Jim Wiley and Peter Thirkell (eds), Conference Proceedings of the Australian and New Zealand Marketing Academy — ANZMAC 2004, 29 November – 1 December 2004 (2004) 1, 2; Eve Coxon et al (eds), The Politics of Learning and Teaching in Aoetara, New Zealand (1994) 13.

[35] Tarrant, above n 10, 72.

[36] In fact, the importance of this area to the profession generally is illustrated by the fact that the Law Foundation of Victoria provided a grant to undertake the research described in this article. The author believes that legal education in Australia requires revamping by the legal profession generally but, as this is unlikely in the short term, this paper focuses on the current system and the recent evolution of online delivery.

[37] Maurice Galton, ‘Big Change Questions: Should Pedagogical Change Be Mandated? Dumbing Down on Classroom Standards: The Perils of a Technician’s Approach to Pedagogy’ (2002) 1 Journal of Educational Change 189.

[38] Roy Stuckey, Best Practices for Legal Education (2007) 2; Chavkin, above n 9, 23–4; Keyes and Johnstone, above n 13, 538; Zerelli, above n 15, 106; Thornton, ‘The Law School, the Market and the New Knowledge Economy’, above n 5, 18.

[39] Thornton, ‘The Law School, the Market and the New Knowledge Economy’, above n 5, 22, where the author espouses the concern that just by ‘pressing computer buttons … technology tends to glide over multifaceted and conflictual ethical problems’. In relation to loss of professionalism, see Farrow, above n 5, 54.

[40] See Thornton, ‘The Idea of the University and the Contemporary Legal Academy’, above n 10, 484.

[41] If a student is independent he/she can probably cope with this sort of learning — the Monash experience has been that the modern learner is not independent and needs guidance: see also Thornton, ‘The Law School, the Market and the New Knowledge Economy’, above n 5, 18; Ditcher and Hunter, above n 34, 202; Peter Martin, ‘Cornell’s Experience of Running Online, Inter-School Law Courses — An FAQ’ (2005) 39(1) Law Teacher 70.

[42] Thornton, ‘The Law School, the Market and the New Knowledge Economy’, above n 5, 18–20. Ditcher and Hunter express a similar view in their study, above n 34, 202.

[43] Lisa Emerson and Bruce R McKay, ‘Subjective Cognitive Workload, Interactivity and Feedback in a Web-Based Writing Program’ (2006) 3(1) Journal of University Teaching and Learning Practice 1, 2.

[44] Massingham and Herrington, above n 32, 96.

[45] Rob Nadolski and Jurgen Woretshofer, ‘The Use of ICT in the Training of Legal Skills’ (2005) 39 Law Teacher 29, 41–2.

[46] Daniel J Shelley, Louis B Swartz and Michele T Cole, ‘A Comparative Analysis of Online and Traditional Business Law Courses’ (2007) 3(1) International Journal of Information and Communication Technology Education 10, 15, where results from a number of studies are considered.

[47] Smith, Ling and Hill, above n 12, 72.

[48] Maurli Shanker and Michael Hu, ‘A Framework for Distance Education Effectiveness: Using a Business Statistics Course’ (2006) 1(2) International Journal of Web-Based Learning and Teaching Technologies 1, 16.

[49] See Sarah Lambert and Chris Brewer, ‘1st, 2nd and 3rd Generation Implementations of an eLearning Design: Re-Use from Postgraduate Law to Block/Online Engineering Course’ (2007) 2(2) Journal of Learning Design 70, 72; Jennifer Ireland, ‘Blended Learning in Intellectual Property: The Best of Both Worlds’ (2008) 18 Legal Education Review 139, 139–40; Liz Polding, ‘Delivering Blended Legal Learning by Open Source Methods’ (2007) 1 Journal of Information, Law and Technology [5]; Pastellas and Maxwell, above n 17, 207.

[50] Lambert and Brewer, above n 49, 72. See also Sandra Wills, ‘Strategic Planning for Blended eLearning’ (Paper presented at the 7th International Conference on Information Technology Based Higher Education & Training, Sydney, July 2006) <http://ro.uow.edu.au/asdpapers/36> at 23 December 2009.

[51] Allan Chay says he knows of no study that can categorically say that there is a difference in learning outcomes between the two modes: Allan Chay, ‘PLT the National Challenge’, Lawyers Weekly (Sydney), 5 November 2004.

[52] Confirmed in the MacCrate Report, above n 23, 3 and the Carnegie Report, above n 9, 6. In the US, Code of Recommended Standards for Bar Examiners of the National Conference of Bar Examiners and ABA Section of Legal Education and Admissions to the Bar (US) r 6, under the section headed ‘Law School Education’, makes it clear that applicants will not be eligible to take the bar examination if they have engaged in correspondence (or online) study. Also Standard 304(g) of Legal Education and Admissions clearly states that approved law schools must not grant credit for courses taken by correspondence. Thus, US universities run law distance courses at their ‘peril’ in the sense that they may lose their all-important ABA accreditation for incorporating such content.

[53] Catherine Dunkle and Lidia Leite, ‘Hybrid Courses for Adults: Evaluating the Theoretical Background’ in Richard Ferdig et al (eds), Proceedings of Society for Information Technology and Teacher Education International Conference (2004) 900.

[54] Also observed by Pastellas and Maxwell, above n 17, 205.

[55] Poyton, above n 31, [14]. See also Ken Cheng-Choo, who said that interactivity is a crucial factor in effective learning: Ken Cheng-Choo, ‘The Challenge of Developing Engaging Interactive Tertiary Online Language Materials Based on Instructional Design and Learning Principles’ in Kate Deller-Evans and Peter Zeegers (eds), Refereed Proceedings of the 2003 Biannual Language and Academic Skills in Higher Education Conference, 24–25 November 2003 (2003) 149–59.

[56] Roslin Brennan, ‘One Size Doesn’t Fit All: The Pedagogy of Online Delivery in Australia’ in Hugh Guthrie (ed), Online Learning: Research Readings (2003) 55, 63–4. See also Steven F Tello, ‘An Analysis of Student Persistence in Online Education’ (2007) 3(3) International Journal of Information and Communication Technology Education 47, which found the drop-out rate in online courses to be fairly high and cautioned about the need to develop strategies to facilitate student persistence in online courses.

[57] See Keyes and Johnstone, above n 13, 539.

[58] Leonard Webster, Joanna Becker and Kerryn Jackson, ‘Professional Legal Accreditation Online — An Innovative Approach to an Online Learning Community’ (Paper presented at the Third Pan-Commonwealth Forum on Open Learning, Dunedin, New Zealand, 2004) 3, which suggests that controls need to be built into the online programs to monitor student progress.

[59] Jack R Goetz, ‘Interactivity Remains the Key to Successful Online Learning’ <http://jurist.law.pitt.edu/lessons/lesnov00.htm> at 23 December 2009.

[60] Tamsitt and Du Moulin, above n 27, 12.

[61] Ibid 13.

[62] Lambert and Brewer, above n 49, 72.

[63] Ditcher and Hunter, above n 34, 5; Bernadette Richards, ‘Alice Comes to Law School: The Internet as a Teaching Tool’ [2003] LegEdRev 7; (2003) 14 Legal Education Review 115, 123.

[64] Winnie Wade, ‘Introduction’ in Winnie Wade et al (eds), Flexible Learning in Higher Education (1994) 1, 1–5.

[65] Peter Martin, ‘Cornell’s Experience of Running Online, Inter-School Law Courses — An FAQ’, above n 41, 78.

[66] The increasing number of university students working in full-time and part-time capacities and the impact that has on educational design is discussed in Tarrant, above n 10, 71.

[67] Polding, above n 49, [29].

[68] Lillian Corbin, ‘Learning in Cyberspace: Succession Law Online’ (2004) 11(1) Murdoch University Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/v11n1/corbin111nf.html> at 23 December 2009.

[69] Enyon, above n 31, 10; Pastellas and Maxwell, above n 17, 205.

[70] Pastellas and Maxwell, above n 17, 205.

[71] Department of Justice (Victoria), above n 2.

[72] Richard Besley, CEO Board of Examiners, ‘Admission to Practice in Victoria’ (Speech delivered at the Monash University Law Students, Lawyers, Ethics and Society, Melbourne, 23 October 2009).

[73] Monash University discontinued its PDLP (in all its versions) in 2009 due to a number of factors, including a change in strategic direction for the faculty. This followed a similar move by University of Queensland in 2006: Letter from Dean, Law Faculty of University of Queensland to APLEC Executive, November 2006.

[74] Richards, above n 63, 131.

[75] David Spencer and Samantha Hardy, ‘Deal or No Deal: Teaching On-Line Negotiation to Law Students’ (2008) 8(1) Queensland University Technology Law and Justice Journal 93, 100.

[76] Peter Albion and Petrea Redmond, ‘Returning the Favour: Using Insights from Online Learning to Enhance On-Campus courses’ in Caroline Crawford et al (eds), Proceedings of Society for Information Technology and Teacher Education International Conference 2006 (2006) 2458, 2460.

[77] David Boud and Michael Prosser, ‘Key Principles for High Quality Student Learning in Higher Education from a Learning Perspective’ (2002) 39(3) Educational Media International 238, 239.

[78] John Biggs ‘Teaching for Better Learning’ (1989– 1990) 2(2) Legal Education Review 133, 144.

[79] Wade, above n 64, 5; Corbin, above n 68.

[80] Robert Lloyd, ‘Investigating a New Way to Teach Law: A Computer-Based Commercial Law Course’ (2000) 50(4) Journal of Legal Education 587, 590, which discusses the costs in terms of workload for staff using discussion boards.

[81] Gaye Lansdell, ‘The “Flexible Learning” Paradigm: Have We Forsaken Quality and Professionalism for Technological Convenience in the Training of Lawyers in the 21st Century?’ in Angela Ragusa (ed), Interaction in Communication Technologies and Virtual Learning Environments: Human Factors (2009) ch 6.

[82] Thomas Keefe, ‘Using Technology to Enhance a Course: The Importance of Interaction’ (2003) 1 EDUCAUSE Quarterly 24, 27.

[83] Wade, above n 64, 1–5.

[84] D Randy Garrison and Terry Anderson, E-Learning in the 21st Century: A Framework for Research and Practice (2003).

[85] Scott Slorach and Phillip Knott, ‘The Development of Skills Teaching and Assessment on the English Legal Practice Course — A Nottingham Law School Perspective’ (1996) 14(2) Journal of Professional Legal Education 189; see also Anne Macduff and Lynn Du Moulin, ‘New Challenges in Legal Education: Developing an Appropriate Response to the Issue of Student Workload’ (2008) 18 Legal Education Review 179, 195.

[86] Diana Laurillard, Rethinking University Teaching (1993).

[87] Lansdell, above n 81.

[88] Chavkin, above n 9, 53, 195, states that experiential learning in the face-to-face mode is required to develop the sense of professionalism.

[89] As set out in Recommendation 10: Department of Justice (Victoria), above n 2, 50.