#aplec2013 Day 1 – 3rd Parallel Session

South Sea Bubble: Will Law Enrolments Peak in Australia?

Gary Tamsitt

Australian National University

My impressions, tersely expressed. Errors and omissions are mine…

Started with talking about available evidence of law student numbers, including LLB and JDs. What sort of effects might we have if numbers decline. Background of legal education crisis in USA, trends in UK before moving to Australian context and likely future developments there.

Referred to recent literature from the USA – Morgan, Tamanaha, Harper, and Henderson’s ‘Blueprint for Change’. Decline in entry level lawyer jobs and effects of law school rankings on employment in USA. Chart – 1985-2011 decline of entry-level jobs. 2012 chart showing employment outcomes by ‘tiers’ of law schools. Decline less pronounced in top-tier schools, lower tier schools employment outcomes  – 41.5% not employed in legal profession. Notes USA is different professional culture and trajectory to Australia, but potential lessons here. Debates about tuition fees (expensive), gaming system to improve law school rankings, law schools shedding staff, enrolments down 25% on previous year, numbers sitting LSAT in USA are down 45%. Suggestion that law school rankings in Australia will become more and more important.

Asks, is this a temporary blip, or a structural change? Cites Susskind and Kritzer – fundamental changes to the way legal services are delivered and decline in traditional ‘bespoke’ lawyering – outsourcing legal processes, ‘back office’ work to other countries. Chart showing boom in ‘other legal services’ compared to relatively flat trajectory of traditional legal services (law offices).

Responses in USA – ‘law school too long!’ – suggestion that law course could be compressed into shorter course, to reduce costs. Liberalise standards for accreditation, greater scope of innovation, emphasis on “work-ready” lawyers.

UK – no evidence of decline in enrolments, but concern about shortage of trainee places. LETR – concerns about student diversity, fee increases. Moves to free up marketing legal services, alternative pathways to qualify to do legal work.

Australia – increase in number of law schools and law students. No clear evidence of decline in legal services market. Some evidence of decline in employment in large firms, and entry positions. Chart – Australian law school enrolments – slight dip in international student enrolments. Uneven data for law firm employment. Numbers of new solicitors in NSW (< 12 months employment) seems to have substantially declined.

Law students as proportion of population – USA 0.45%; UK 1.08%; Australia 1.43%. Combined degree structures attract many students not intending to practice law. JD enrolments more practice focused? Career destinations data out of date.

Expecting stratification amongst law schools – rankings – effect on employment outcomes – increased competition between students – innovative degree structures – JDs becoming more differentiated. Finances – teaching loads that allow time for research? Low commonwealth supported places funding for LLB compared to JD and LLM?




Reflections on ALTA Conference 2013

ALTA2013Overall I enjoyed this year’s ALTA conference at ANU (my third), interacting with familiar faces and making several new acquaintances. Personally, this was my most socially engaging ALTA conference so far.

Day One

First Keynote – Professor Carrie Menkel-Meadow

I developed a serious intellectual crush on Professor Carrie Menkel-Meadow (Georgetown Law, Washington DC) during her keynote address on the first day. Summarising the keynote here would be inadequate and many of her papers are freely available on SSRN, but one of the more recent, ‘Doing Good Instead of Doing Well? What Lawyers Could be Doing in a World of ‘Too Many’ Lawyers’ seems especially indicative, speaking to the idea that ‘lawyers and legal educators need to proactively reframe what is considered to be legal work and legal education for new ways of legal and human problem solving to be studied and learned’.


Melissa Castan (Monash Uni) and I co-presented a paper developed with Kate Galloway (James Cook Uni), ‘The Matrix as the Gatekeeper: Effective integration of online technologies in maximising research impact and engagement’. We hope to publish a full paper later, but in essence we spoke to our experience following the publication of our earlier article, ‘Interconnectedness, Multiplexity and the Global Student: The Role of Blogging and Micro Blogging in Opening Students’ Horizons’ The paper was picked up by the Australian Financial Review and enjoyed a substantial increase in abstract views and downloads. The experience caused us to reflect on how social media might be incorporated into considerations of quality, engagement and impact in research. The presentation was generally well received and hopefully we can develop this line of inquiry further.

Dr Noeleen McNamara (University of Southern Queensland) presented ‘Engagement of Distance Law Students Through the Learning Management System: Core and elective courses’. Noeleen reported a detailed statistical study that compared student access to online tutorials (downloadable mp3 files) with their subject grades. Interestingly, several ‘fail’ students had accessed all or most tutorials whereas at least one HD student had accessed none at all. There were some differences between results for LLB and JD students. Following this presentation I personally reflected how valuable a qualitative study of participants’ narratives about how they engaged with the online tutorials might be for informing future use of online tutorials.

Dr Helen Sungaila (James Cook University) presented a paper jointly developed with Peter Boulot, ‘The MOOCS Have Arrived: But where does the real challenge lie?’ This was a very entertaining account of Helen’s experience in grappling with the scripting and design of an online simulation project, and her interactions with those advising her, including a scriptwriter and a virtual reality engineer. For me, this presentation highlighted how interactions between lawyers and non-lawyers in legal education can be puzzling, frustrating but ultimately instructive and generative.

Elen Seymour and Assoc Prof Michael Blissenden (both from University of Western Sydney) jointly presented ‘Gatekeeper of Learning in the Digital Age’, which was an account of their experience in working with an arrange of digital applications to create and deliver online instruction. A key takeaway message for me is that a plethora of cheap or free applications are available, but one needs to think carefully about how to incorporate such applications into instruction so they best serve the purpose of student learning. Conference technology inhibited their ability to provide a ‘live’ demonstration of the applications, but did not diminish their message. I think, however, conference organisers need to incorporate robust presentation technology as resources for presenters, with ICT increasingly a subject in presentations.

After lunch I attended a presentation by Dr Leonie Kelleher and Mr Hubert Algie (both of Kellehers Australia) ‘The Gatekeepers of the Law: Revisiting the roles of academics, students and the profession’, in which each presented a case study. Hubert’s case study involved engaging the profession to help young lawyers learn and improve advocacy skills. Leonie’s case study involved students engaging with a remote aboriginal community, mediated by an aboriginal elder. Both case studies provide examples of taking learning outside of the classroom and interacting with (what I call) ‘actuals’ to generate insights that promote and enrich student learning.

Dr Chris Trevitt (Australia National University) presented a paper jointly developed with Lynn Du Moulin (ANU), ‘Gatekeepers Meet Stakeholder Interests: Managing the tensions arising from the changing nature of professional dialogues in legal education’. The paper explored the gatekeeping role legal educators experience through dialogues with various stakeholders, involving attributes of power, legitimacy and urgency. Stakeholders identified include teachers, learners, learning institution, professional regulators, the profession and its clients, and the wider higher education milieu. They examined student assessment and teacher evaluation as ‘two particular settings where tensions and opportunities for dialogue arise.’ I am very interested in this work and I see intersections with my own research concerning PLT practitioners’ engagement with scholarship of teaching.

The final plenary on Day 1 was entitled ‘Law Teachers as Gatekeepers—How effectively are legal educators teaching students about the role of lawyers and the nature of legal practice’. The panel included Prof Kim Economides, Tim Bugg, Jemima Roe, and Bradley Chenoweth. One comment that stood out for me and elicited questions from the floor seemed to indicate innovations in legal education might be inhibited by conservative regulators. This is an important topic I hope to follow up in my own research.

Day Two

Unfortunately, I missed the first keynote on Day 2 – Professor Frank Brennan SJ AO, (Australian Catholic University and ANU). His topic was ‘Law Teachers as Gatekeepers of Law, Public Morality and Human Rights: equipping our students for moral argument in a pluralistic legal environment. I understand that specific mention was made of land rights, native title, and the law concerning asylum seekers.

First presentation I attended on Day 2 was Michael McShane’s ‘Should Law School Focus on the Discipline or the Profession of Law?’. Michael explored intersections with between learner theory (e.g. Vygotsky), themes in the Carnegie Report (‘Educating Lawyers: Preparation for the Profession of Law’), documents produced by the ALTC and the threshold learning outcomes. One of the ideas that resonated with me was the connection between notions of ‘metacognition’ (how learners manage their own learning) and the ‘market’. There wasn’t time for Michael to fully develop this in the presentation. My understanding is that metacognition might be appropriated as part of an industrialised approach in which the learner ‘bears the cost’ through learner-centred approaches. This reminded me of Foucault’s concept of governmentality and self-government as a way of shifting the management burdens in power relations. Interesting area.

Oyiela Litaba (Monash) presented ‘(Ab)using the Court System: Helping our students to get it right’ and described a learning task involving role play. Students were ‘cast’ for roles in a civil litigation fact situation involving ethical dilemmas, including a junior solicitor charged with carriage of a commercial litigation matter apparently lacking merit. Oyiela described the difficulty of resolving a dilemma in which a junior lawyer is directed to do something they perceive as breaching professional ethics. Very interesting discussion about how to manage this in a teaching situation.

Katherine Curnow (University of Queensland) presented ‘Putting Civil Procedure into Action: Investigating the effects of implementing an experiential learning tutorial program’. This was an interesting report on an innovation involving face-to-face experiential learning components with some online components.

Dr Brendan Gogarty (University of Tasmania) presented ‘Practicing the Study of Public Law. A skills based teaching and learning model for undergraduate law students’. Brendan’s model was evolved after considerable experimentation and combines online and face-to-face experiential components that include interactions with members of the profession and fact situations drawn from live High Court matters. A great example of how to incorporate public online materials from the High Court into learning content. It is also clear that Brendan is carefully evaluating each stage of development and each component of this model. Ambitious and demanding and worth watching over time.

Assoc Prof Gary Tamsitt (ANU) examined and compared data from the USA and Australia  in his presentation, ‘South Sea Bubble: Will law enrolments peak in Australia?’ At present law school enrolments are rising in Australia (falling in the USA), but it appears that graduate positions are diminishing in Australia. Several aspects complicate comparisons (career trajectories for law graduates in the USA might differ from those in Australia), and it is difficult to get good national data concerning graduate employment in Australia. Interesting empirical study that I will follow for my own research.

In his presentation, ‘‘If You Can’t Beat Them, Join Them’: Appropriating vocationalism in the law school’, Prof Nick James (Bond University) spoke about the rise of vocationalism in law schools and the need to preserve academic spaces that are not focused on producing practising lawyers. Nick suggested that one strategy is for academics to ‘appropriate’ the notion of ‘professionalism’ by showing ways in which insights produced by the academy are integral to a holistic notion of professionalism.

Final keynote – Professor Paul Maharg, ANU
Paul spoke to his theme of ‘Space, absence, silence: learning and the regulation of legal education’. Drawing on concepts from the arts, reader-response theory, relational perspective, knowledge objects, affective socio-linguistics, Paul demonstrated how concepts of space and absence can inform approaches to teaching and learning, and regulation of legal education too. He suggests that ‘shared space is an approach that can improve regulation and  the quality of legal education. This could involve ‘participative regulation’ where the regulator acts as a quality enhancer rather than a quality assurer, focusing on ‘culture shifts towards innovation, imagination, change for a democratic society’.

I thought that was a pretty good note on which to end the conference.


Is the Lecturer in the Room?

LER_Article2012 The Legal Education Review has published an article I co-authored with Dr Julianne Lynch last year.* The article reports on a practitioner-initiated study of student satisfaction with online discussions in practical legal training. I undertook the study under Dr Lynch’s supervision as part of my master degree in professional education and training in 2011. An abstract is available here. Undertaking the study (and obtaining ethics approval) was a significant learning experience for me. Research that focuses on teaching and learning is quite a different experience from the doctrinal research that lawyers often do. The challenge of recruiting participants for this study highlighted for me some of the difficulties in undertaking this type of practitioner research. Writing the journal article was also an important learning experience, and I am much indebted to Dr Lynch’s supervision together with the editorial committee at the Legal Education Review, and the two anonymous reviewers. I have resolved to work harder at improving my academic writing! I hope the article would be a useful springboard for anyone contemplating similar research involving online discussions in legal education or practical legal training

*Kristoffer Greaves and Julianne Lynch, ‘Is The Lecturer In The Room? A Study Of Student Satisfaction With Online Discussion Within Practical Legal Training’ (2012) 22(1&2) Legal Education Review 147.


Presentation in November – APLEC 2012 – Hobart

‘Skills’ in LLB Threshold Learning Outcomes and Competency Standards for Entry-Level Lawyers – a Comparison using CAQDAS

I am presenting a brief paper at the Australasian Professional Legal Education Council conference hosted by the University of Tasmania Law School from  8 November 2012.  The abstract follows:

This study analysed the Threshold Learning Outcomes (“TLOs) specified in the Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010, and the Competency Standards for Entry-Level Lawyers for Practical Legal Training, as updated by the Australasian Professional Legal Education Council and Law Admissions Consultative Committee in February 2002 (“Competency Standards”). Qualitative analysis was undertaken using the NVivo computer assisted qualitative data analysis software (“CAQDAS”), to investigate how skills were categorised and defined in each of the documents. The data were then analysed to compare the respective categorisation and definition of skills, and to identify potential complements, overlaps, conflicts, gaps, or blind spots, between the TLOs and the Competency Standards. The findings, and the methodology adopted, might provide insights for future instructional design, content, and delivery of Practical Legal Training programs, and for future reviews of the TLOs and Competency Standards.


Elements of Critical Legal Studies and the Law & Society Movement

As part of my PhD research I am interested to reflect on the epistemologies of the critical legal studies (“CLS”) and law & society movements (“LSM”) in locating where my own project might be situated in the context of law research.  Here are two videos, Part One and Part Two that are my ‘concept maps’ of the elements of these two ‘critical’ movements.


The Colloquium Document

PhD Workspace
A focused workspace?

As part of my PhD candidature I must complete a 10,000 word colloquium document and present at a colloquium within the first 12 months of candidature. From my perspective it is partly a ‘gate-keeping’ procedure to ensure candidates are progressing and focusing their project, and that the research is on balance likely to make a ‘substantial original contribution to knowledge’.

My colloquium presentation is unlikely to take place until February 2013, but I thought I would start drafting the document now, given that I have already undertaken a lot of reading about the subject matter (a scholarship of teaching in practical legal training), and toward developing a theoretical framework for the project (at this stage I am drawing on Bourdieu’s theoretical tools, and de Certeau’s concept of practices in everyday life and ‘le perruque’). I have decided on undertaking a qualitative methodology, combining policy research (looking at the law and policy underlying practical legal training) and narrative inquiry (learning from PLT teachers’ narratives about how they moved into practical legal training and what they have to say about scholarship of teaching). I have also been reading up on grounded theory approaches to research and the Glaser/Strauss debate about ’emergence’ and ‘forcing’ of theory from the data. I have undertaken some training with the NVivo computer assisted qualitative data analysis software (CAQDAS), with some more advanced training timetabled later in August 2012. I have to say that I have found NVivo very interesting to work with, and I will write a separate post about this soon.

I have found that working on my colloquium document this week has been a very useful exercise. The process has helped me to get a sense of ‘where am I up to’ since starting the candidature on 31 March 2012, and it has highlighted several strengths and weaknesses in my work and reflection undertaken so far. ‘Strengths’, in reminding me just how much reading and reflection and note-taking I have already done, and how this has contributed to my knowledge. ‘Weaknesses’, in identifying gaps and blind spots in my theorising, and also in the ‘logistics’ of my research.

I am now thinking that I should have started drafting this colloquium document much earlier and used it in conjunction with a reflective approach of memo-writing, so that the document provides a focused ‘space’ for my work. That said, I am pleased that I have started it now, 4-5 months into the candidature, rather than later. I guess that some might say there is a danger of feeling ‘locked-in’ to what is in the colloquium document, but I think that if I remind myself that it is a dynamic document in every aspect, then that should not be a problem.

So, if you are a PhD candidate, what is your approach to the colloquium document? Do you think that starting on it early as part of a reflective approach is a good idea?


Taking into account ‘affect’ in Practical Legal Training

This post is an edited version of a comment that I posted to the Practical Legal Training Educators Australia discussion group.

I recently finished re-reading Julian Webb’s chapter, ‘The Body in (E)motion: Thinking through Embodiment in Legal Education’ in Paul Maharg and Caroline Maughan (eds), Affect and Legal Education – Emotion in Learning and Teaching the Law, Emerging Legal Learning (Ashgate, 2011) 211.

I think Julian Webb makes a compelling argument (at p 227) that, ‘By enabling our students to get social in the classroom, to come together in a more structured and reflective way, group learning can actively support their social and moral development, and – maybe, just maybe – enhance their ability to become ‘better’ social actors…’

This chapter follows nicely from Graham Ferris and Rebecca Huxley-Binns’ chapter, ‘What Students Care About and Why We Should Care’ in the same book. They rightly argue at p 195, ‘…that those delivering education should explicitly and deliberately consider the purposes of learners, meaning the things they do or might value, or care about, or strive for. Whilst the choice of purpose is that of the learner, we can use our experience and knowledge of teaching law in higher education to facilitate purpose, choice or value adoption or rejection.’

It seems to me that these positions are applicable to the practical legal training environment, not just the academy. That said, some might be understandably concerned about leaning too far toward what students care about and losing sight of the integrity of the training and the PLT accreditation. This is the ‘springboard’ for my following comments.

Taking the skills workshop situation as an example, we can design the instruction and plan certain learning objectives for this experiential learning experience.
There may be ‘global’ objectives embodied by ‘global’ statements in the Competency Standards for Entry-Level Lawyers; ‘instructional’ objectives the students’ performance goals, the conditions for that performance, and the the criterion for satisfactory performance. We can frame specific educational objectives as a subject-verb-object sentence: ‘[During the role-play interview] the student will be able to obtain all instructions necessary [to commence work on the client’s problem and to provide preliminary advice in plain language]’. We could specify what ‘plain language’ means in this context (e.g. we could decide to exclude ‘txt-speech’, and explain why – notions of professionalism, regularity, respect, integrity, etc.) Here, I’ve drawn on Mager, R.F., Preparing Instructional Objectives. 1997, Atlanta, Georgia, USA: CEP Press.

It is also possible to explicitly plan the learning across different levels of processing (e.g. retrieval, comprehension, analysis, knowledge utilisation, meta-cognition, and the self-system/affective level) across different domains of learning (information, mental procedures, psychomotor procedures). Here, I’ve drawn on Marzano, R.J. and J.S. Kendall, eds. The New Taxonomy of Educational Objectives. 2nd ed. 2007, Corwin Press: Thousand Oaks, California. I have previously blogged about this taxonomy.

Taking the above into account when planning the workshop, we can decide to adopt certain evidence-based teaching methods, such as advanced organisers, graphic organisers, whole-class interactive or co-operative learning approaches, and use a range of media to do this. I am drawing on Petty, Geoff, Evidence-based Teaching – A Practical Approach (Nelson Thornes, 2nd ed, 2009) here. Of course, it is important that the material and methods we use are ‘authentic’ and relevant to the learning objectives.

When we actually ‘perform’ or ‘deliver’ the workshop, ‘stuff’ comes up during discussions or arising out of the practice role-play interviews. It may be the student asks a question about how to handle a certain situation, or a student recalls an analogous situation from their volunteer legal work or graduate placement. We might respond by opening the question up to discussion, or share an illustrative ‘war story’ anecdote from our own practice to give an example of how we solved a problem. These are usually good opportunities to employ, and model, ‘reflection-in-action’, and ‘reflection-on-action’ approaches to teaching, learning and professional practice. I am thinking about the work of Chris Argyris and Donald Schön, but in particular Schön’s book., Educating the reflective practitioner, Jossey-Bass higher education series. (Jossey-Bass, 1st pbk. print. ed, 1990). Peter Senge is also good to read about this – Senge, Peter M., The Fifth Discipline – The Art & Practice of the Learning Organisation (Doubleday Business, 2nd ed, 2006).

These interactions have social as well as educational qualities; both of which involve the students emotionally to some extent.

Running through all of this, from planning to delivery, are considerations concerning the affective domain / self-system level of processing learning. What students want and feel is relevant to emotionally driven judgements about whether the learning task is important and relevant to their learning goals and their ability to complete the learning task: motivation to learn = value x expectancy. This can be especially important with adult learners who can resist what they perceive as ‘supplementary’ learning (Atherton, James, ‘Resistance to Learning: A Discussion Based on Participants in In-Service Professional Training Programme’ (1999) 51(1) Journal of Vocational Education and Training: The Vocational Aspect of Education 77).

Some tend to focus on these aspects in relation to initial engagement, but I think they’re equally important to student satisfaction with the learning and could possibly affect their feelings about continuing professional education. In other words, what we do during the interactions is relevant to the immediate educational objective, but also could affect young lawyers’ commitment to life-long learning, and either impinge or enhance their satisfaction with their professional development, and their chosen profession. I think these factors are also relevant in training entry-level lawyers to pursue thinking about ethics and professional responsibility.

So, I agree that it is important to be clear about what are our teaching and learning goals in facilitating our students construction of themselves as lawyers; I think it is important that we are able to justify our instructional decision-making; it seems to me that both of those propositions involve developing our understanding of the affective domain of learning in practical legal training so we can continually improve the way we train lawyers.


‘Transactional Learning Environment’ and ‘Developing Professional Character’, in Affect and Legal Education

Karen Barton and Fiona Westwood’s chapter, ‘Developing Professional Character – Trust, Values and Learning’ in Paul Maharg and Caroline Maughan (eds), Affect and Legal Education – Emotion in Learning and Teaching the Law, Emerging Legal Learning (Ashgate, 2011) 235, is a very good read.

This is a copy of my post to the LinkedIn discussion group, Practical Legal Training Educators Australia.

The chapter has helpful introductory parts about the ‘repositioning of professionalism and the role of legal education’ (p 237), and ‘mastering the craft of lawyering’ using the ‘head, hand and heart’ metaphor (p 238). The authors identify 4 categories of student ‘firms’ that emerge in the transactional legal education environment, in a learning/trust matrix, where each firm has a mix ‘high’ or ‘low’ levels of trust and learning (p 242). The objective, of course, is to develop high trust/high learning student firms (p 244). The authors describe some of the strategies taken as part of an early intervention approach to identify student firms that seem to be tending toward low trust and/or low learning types. These include training of practice management tutors, and techniques to encourage reflective practices amongst the students including reflection on own individual and group work styles and common values (pp 244-8).

Selfishly perhaps, I wanted to know a bit more detail about actual student-student interactions and tutor-student interactions given the importance of ‘forming a team’ (p 246) and that ‘shared values were an integral part’ of the activity (p 247). At p 247, the authors note that ‘…our students did not choose their fellow team members … it was important that they learned to feel secure with each other … this feeling of security was facilitated by their initial discussions.’ It would be good to see more information in the article about those initial discussions, the medium through which they were conducted, and the strategies and methods used to facilitate them, given the importance of those discussions to setting up the activity, as reflected in the student quotes, particularly one on p 251, ‘My concern for the success of the firm began from its inception…’.


Research Tool Tip

I use EndNote for recording references and bibliographic details, and type my research notes into the Endnote research note field for that reference (I also add a pdf of journal articles etc in the figures field). This way I can save a research note with a page or pinpoint reference, and the research note is always attached to that reference. An added bonus is that the entire database can be backed up regularly to avoid future heartache.

But there’s more, I am using Scrivener to write ‘scraps’ and chapters; these can be sorted a bit like index cards and then eventually exported to Word as a final document.
In Scrivener, there is a research folder to which you can drag documents for ease of reference when working on your scraps/chapters.

Experimenting with Endnote this morning, I find I can easily export a single reference with its bibliographic details and all of the content of the research notes field to a text or RTF document. This document can then be dragged to the research folder in Scrivener, so you can easily switch between the research note and the scrap on which you are working.

The method: In Endnote, finish working on the reference and close the reference. Select the reference in the list of references in the main window. Go to File > Export > Type in a unique name for the export file > Select the location to save the file (I use Desktop) > Save as Text Only or RTF > in Output Style, select ‘Show All Fields’ > make sure the ‘Export Selected References’ checkbox is checked > Click ‘Save’. A text document or RTF document will save to your desktop.

I am also using Evernote to save internet pages and info – those items can be sorted and filed in Evernote, and then exported from Evernote as a document to be dragged into the research folder in Scrivener.

Of course, annotated PDF documents can also be dragged into the Scrivener research folder, together with other media such as audio and movie files.