What will enhance legal education in Scotland?

by Paul Maharg on 13/11/2009

Was live-blogging Enhancing Legal Education in Scotland, a legal ed conference hosted by UKCLE last week — kudos to Julian Webb and his team for organising it, for it's difficult to bring together the disparate elements of Scots legal education — but my own afternoon session and then many other thoughts intervened, so I've delayed this posting.  Account of the day and reflections on Scottish legal education below the fold…

Julian kicked off proceedings, and introduced the new Scotland Consultant for UKCLE, Michael Bromby (who's doing a fine job on the Directions blog, by the way).  Alastair Robertson, of HEA Scotland followed, giving a general overview of HE issues, drawing on Ramsden's three critical areas that are the focus of Ramsden's contribution (see point 8) to the Denham Report.  

Margaret Ross was next up, giving a careful overview of the Scottish landscape (which she aptly described as rocky, given current economic conditions and other factors).  She revealed attitudes that were barriers to women in the profession in the early twentieth century (particularly remarks from the Scottish Law Agents Society regarding hiring of women if there weren't enough men coming back from WW1…), and described well the situation regarding the LLB degree today, with its dual role of providing legal education in a general sense (however one defines that) and as education for the profession.  

After Margaret, Liz Campbell and Collette Paterson gave an overview of the Law Society's recent progress with the new professional education curriculum in Scotland, as well as progress on the definition of the Foundation degree (or LLB).  There's much change, much of it for the better, and major challenges ahead for those of us involved in professional education in Scotland — PEAT 1 & 2 providers, training firms, and CPD providers.  

After lunch the afternoon consisted of workshops — I convened one on the PEAT 1 Community of Practice (more of which in a later post — meanwhile, introductory slides on Slideshare); Fiona Cownie on staff development; and Kevin Kerrigan on the exempting law degree at Northumbria which, for my money is one of the best undergrad law curriculum designs around in the UK at present.  The event wound up with a panel of Margaret, Liz and myself, where we commented on the day's activities.  

But on the train back home to Glasgow, I became aware of other things I wanted to say about the day, less about the day's activities and more about the audience.  One little passage stuck in my mind.  Someone raised the question of student literacy, which was defined as being deficit in basic grammar, spelling etc.  There were various contributions from the floor, with me arguing for feedback as a key element to improve matters. 

I'll come back to this particular issue below.  The exchange, though, was symptomatic of a deeper issue that had to to less with students and more with staff, namely the extent to which staff engage with the research on pedagogy, on rhetoric, on student composition and reading, on professionalism, on education as a discipline, as a critique, as a way of being and much else — something I deal with in chapter 2 of my book Transforming Legal Education.  As this event showed (and others I attended recently — see Zeugma posting on the ALT conference) legal educators seem to know comparatively little about these bodies of research, or if they do they don't let on at conferences.  It's critical that we read research and then as a community of educators discuss it and begin to build on it, add to it, draw from it what will enhance our practice as educators.  Thinking about it afterwards, I was struck by how few references to any research there were throughout the day.  This isn't really good enough.  If we're to raise the standard of legal education in Scotland, we need to be reading challenging, thoughtful, rigorous, inspirational research that takes our own practice forward.  Only by doing this can we prepare to engage with students, other professions, other jurisdictions and regulatory bodies such as our Law Society, who in turn interface with the Scottish Executive and other stakeholders.  In more detail, we need to be doing three things:  

1.    Intellectual inquiry into legal education
On Arterian & Paul's regular summary of legal educational research on SSRN (I find it invaluable), I came across an article by Nick James, Australian Legal Education and the Instability of Critique.  Nick analyses how the term 'critique' is used in legal educational texts, in the process seeing legal education as a 'dynamic nexus of at least six distinct and competing discourses: doctrinalism, vocationalism, corporatism, liberalism, pedagogicalism and radicalism.'  There's much that's fascinating in this article, and at almost every turn I find something to agree / disagree with.  The analysis of 'pedagogicalism' for instance doesn't go that far — it doesn't take into account the rich seam of critical literature that seeks to open up pedagogical debate (Postareff & Lindblom-Ylanne 2008, eg).  Nevertheless, reading James' work made me more thoughtful about my own writing and practice.  The article also provides a rich summary of the recent history of legal education in Australia — the footnotes are crowded with references to Australian legal educators: Neil Gold, Richard Johnstone, Marlene Le Brun, Margaret Thornton, Sally Kift, Adrian Evans, Jeff Giddings, etc as well as UK commentators such as Twining.  The article reveals the depth and range of Australian legal educational thought, the vigour of the debate, the intellectual depth of it and the siting of the debate within an international context.  

I have to say that by comparison, Scotland's recent contributions to the literature over the last four decades or so look pretty meagre.  If UKCLE were to follow up this first event with another, then we probably would want a focus on evidence and research — reading it, understanding it, discussing it and producing it.

2.    Research & meta-reviews
A quick way for us to get into the literature is to make use of meta-reviews (aka meta-analytic reviews, narrative reviews and best-evidence syntheses) which in the broadest sense are summaries of prior research.  Some journals make this a specialism, eg Educational Research Review, published by EARLI (European Association for Research on Learning and Instruction).  We need to locate them, read and discuss them, as well as producing them ourselves.  Karen Barton and I produced a wide-ranging one for simulation; and Karen, Patricia and I are producing a me
ta-review for Simulation & Gaming on simulation in legal education, going back four decades.  We also need meta-reviews of Scottish legal educational resources — we need to produce them, to introduce others to what we've been discussing over the last half century or so, and to use them to help us explain ourselves to ourselves (more of this below).

In the conference exchange on student literacy I mentioned above, for instance, no one referenced the ton of research on student writing that stretches back over four decades, ever since Perelman's New Rhetoric initiative; the recent academic literacies debates in the UK; the substantial research carried out in the US on student writing and reading by James Stratman, Dorothy Deegan, Leah Christensen (also here), Elizabeth Mertz and many others; or the dynamic initiatives of Duke, CUNY, Stanford to name only a few, and the debates in popular Higher Ed press about real achievement in the field and what constitutes legal literacy.  Nor is it simply a matter of 'pedagogicalism' to quote James (the issue of literacy, any literacy, never is): the approaches and debates are part of a wider argument about the nature of legal education and its function in society — a debate that in the States stretches back to New Realism and beyond, and revived recently, with figures such as Mertz to the forefront in it.  

3.    Historical research
Margaret Ross quoted from the minutes of the Scottish Law Agents Society — if I recall aright this was the only piece of historical reference in the plenary sessions.  We have excellent historical research in Scotland in the substantial work of  John Cairns, David Sellar, and many other colleagues who have their research networks (Scottish Legal History Group for example), which focus largely though not wholly on legal education in Renaissance – Enlightenment Scotland.  And while there is some research into later nineteenth- and twentieth-century legal education in Scotland, we need to know a lot more of what was happening in Scotland, particularly in a trans-jurisdictional context, so that we can compare what happens in Scotland with England, Canada, Australia, USA, civil systems, etc.  And we need to be keeping extensive records ourselves of what we're doing now, for future generations.  The GGSL for example was a unique initiative in the last decade of the twentieth century.  Where is its history, and if we don't have an account of it how can we tell in the future what it has bequeathed, if anything, to Scottish legal education in the twenty-first century?

There's an oft-quoted passage from Alasdair Gray's novel Lanark (and here), reproduced below.  The character Duncan Thaw's words about Glasgow, often applied to Scottish imaginative culture, also apply to Scottish legal education in the widest sense:

"Glasgow is a magnificent city," said McAlpin.  "Why do we hardly ever notice that?"  "Because nobody imagines living here," said Thaw.  McAlpin lit a cigarette and said, "If you want to explain that I'll certainly listen."

"Then think of Florence, Paris, London, New York.  Nobody visiting them for the first time is a stranger because he's already visited them in paintings, novels, history books and films.  But if a city hasn't been used by an artist not even the inhabitants live there imaginatively.  What is Glasgow to most of us?  A house, the place we work, a fottball park or golf course, some pubs and connecting streets.  That's all.  No, I'm wrong, there's also the cinema and library.  And when our imagination needs exercise we use these to visit London, Paris, Rome under the Caesars, the American West at the turn of the century, anywhere but here and now.  Imaginatively Glasgow exists as a music-hall song and a few bad novels.  That's all we've given to the world outside.  It's all we've given to ourselves." (Lanark, 1981, pp.241-2)

What does Scottish legal education exist as, to the rest of the world?  What have we given to the world outside?  What have we given to ourselves?  When we imagine our future, what should it be?  These are some of the hard questions we need to answer.  And while UKCLE can play a role in helping us to do that, we really need to make a start for ourselves.


Gray, Alasdair, (1981) Lanark: A Life in Four Books, Canongate Publishing, Edinburgh.

Postareff, L., Lindblom-Ylanne, S. (2008) Variation in teachers' descriptions of teaching: broadening the understanding of teaching in higher education, Learning and Instruction, 18, 2, 109-120.

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