Final thoughts: UNSW legal education research conference

by Paul Maharg on 06/12/2017

This was a great conference.  I so enjoyed being back in Australia, meeting up with colleagues and friends again, and hearing what they were doing.  I wanted it to go on for days.  The programme is a tribute to the typical creativity and energy that legal educators in Australian law schools are putting into legal education, and into legal education research.  You know it’s high quality when you look at the programme and can’t decide which of the streams you want to attend.  Of the ones I attended the writing skills session stayed with me (see below).  And oddly enough Jenny Buchan et al’s MOOC session, described here, also stayed in mind.  I’m surprised at that because I’ve generally thought of MOOCs as being rather conventional in their methods, and I’ve been uninterested in them for the most part, while acknowledging everything that Stephen Downes, one of my digital ed heroes, has written about them.[1]  I should really rethink.  I think it was way the whole course was well designed, for flexibility and re-use, that I was impressed with.

But three other things remained with me.  First, the conversation I had afterwards with Jenny about her MOOC, where I asked her what platform she had used.  I’d only seen the bits from the presentation but I kind of guessed it was Futurelearn (that’s the UK OU’s platform).  Jenny said they started with Coursera but for a variety of reasons switched to Futurelearn.  I think that there’s a significant difference now between the functionality of Futurelearn and some of the other platforms.  Second, and thinking about what Jenny said, I was struck by the pacing and tempo of the course.  They seemed to have got that just right.  Pacing on something as large as a MOOC might not appear to be one of the critical features of design, but actually I think it’s one of the unregarded skills of legal educational design no matter what form the educational intervention takes.  On a MOOC there’s a balance to be struck between going too slow, and boring/irritating students, and rushing the course, and confusing/irritating students.  I’ve never designed one, but I did study in one, described on this blog post here.  and reflected further on the subsequent post.  Added to that is the extra difficulty of the much wider range of students’ mixed abilities on a MOOC than you would find on, eg, a third year elective on international franchise law.  Jenny and her team seemed to be managing that well – kudos to them.

Third, there’s the problem, that I referred to at questions, of open resources.  Jenny noted that students came up against paywall problems.  A MOOC is wide open to the world.  Perhaps only a small proportion of the student body will have privileged access via a university library to online books and articles, and if the others try to read them without such access, particularly articles, they are asked to pay exorbitant amounts.  I’ve written about this before – here, and here, and especially here – and here’s an extract from the last post to illustrate how serious the situation is:

Research should be open.  Plain and simple.  […]  Publishers don’t contribute at all financially to the massive effort of producing research: our universities, ultimately the public in a variety of ways, pay for that.  But Elsevier and others cream off grotesque profits through their journal publications divisions from already hard-pressed libraries, profit that goes straight into shareholders’ pockets.  They close down research from the general public who have paid for that research, in order to maximise shareholder profit — the public pay to have research produced, then have to pay again to read it.  And pay a third time if they want to read it for free.  The Dutch government put pressure on Elsevier to open access, but in the end settled for what’s really a highly compromised deal.  Back in 2013 the New Yorker summed up Elsevier’s general approach, and it’s only got worse since then:

Elsevier […] is infamous for restricting the flow of scientific information so it can sell research papers for as much as fifty dollars a piece, generating profit margins of thirty-six per cent and netting the company billions of dollars in revenue annually. The company has fought legislation designed to open up academic research, offered scholars money to file positive reviews, sued libraries for oversharing, and allegedly published fake journals on behalf of the pharmaceuticals industry.

MOOCs simply shine a brighter light on a situation that our institutional subscription services allow us to safely ignore.  But if your course is flung open to the world, how is the world going to read the research you want it to read?  As a designer you pour effort and institutional funds into creating a MOOC that will be free at point of access, only for publishers to be charging 50 bucks or whatever per article.  Mitigatory tweaking of the system won’t work for MOOCs (and remember what MOOC stands for – Massive Open Online Course).  Research, like law itself, should be open and free.  Nothing less.  And being in UNSW, the home, jointly with UTS, of that stunning example of open source, namely AUSTLII, only made the issue more pointed.

Another session I thought about later was the one on writing skills.  This blog is about rhetoric amongst other things, largely because that was a large part of my Arts education, and I’ve always been interested in it, not least because it’s been a core of western and northern education for well over two millennia.  The work of Pippa Ryan on the use of discourse markers to help students understand good writing practices, and Sandra Noakes on locating good practice pedagogy to support law student writing was both innovative and exhibited a strong sense of the research work in the field, which was elegantly and economically folded into their work.  Listening to them, and summarising their presentations for the blog I was carried back to my home disciplines, and revisiting the tough challenges that that research presented legal education, all the more poignant because for many centuries the two disciplines of rhetoric and law were so close and intermingled.

So – with reference to Pippa’s work on discourse markers, and to take that work to another stage, I wondered whether an improved structural or rhetorical skill enables students to better memorise, recall, manipulate legal argument? I recalled Kintsch’s work on what he called ‘textbase’ and ‘situation model’. Readers who formed an adequate textbase performed well on memory tasks. They were able to reproduce the text, even to summarise it. But readers whose situation model – that is, their knowledge of the external context of the remembered text—remained deficient, were unable to use the recalled text in tasks requiring inferential acts. As Kintsch says, ‘there is an important difference between just remembering a text and learning from it to perform some kind of action’.[2]  In her description of sophisticated models of support for students’ writing Sandra described much of what we were doing back in the 1980s on The University and Its Ways programme I described in my plenary.

The conference showcased so much good work across the field of legal education, and research coming out of that work – it was so heartening to be there and listen to the intellectual work, the ingenuity, the wit and sheer hard perseverance that went into it all.  And yet there are significant problems that remain for our research in legal education, and they don’t get any better.  Here’s part of my abstract, where I describe the situation:

In almost every common law jurisdiction the review of legal education has become more sophisticated and more complex.  It has not been matched by concomitant increase in the sophistication and complexity of the empirical research base, nor in the organisation of that research.  As we pointed out in the LETR Report (2013), there are significant gaps in legal educational research.  There is little co-ordination of research initiatives between academy and regulators on a sustained basis.  There is little organisation by the academy of the increasing volume of research that it produces on legal education: a significant lack of longitudinal studies, very few ongoing and sustained data studies, no meta-reviews, almost no systematic reviews of literature, almost no policy paper series, little in the way of a stream of historical literature on legal education that feeds into current developments and future innovation.  Such lack of organisation and the thin historical awareness that it gives rise to, I argue, constitutes a bar to the development of a rich legal educational research paradigm, and seriously affects our ability to generate, curate and argue from evidence-based data.

I’ll be writing up my plenary later, and I’ll support these claims and demonstrate the effects that they have on our discipline.  For now, though, I should say that the Themis initiative, jointly with Julian and Alex and others in due course, is designed to help remedy the situation; and I’ll be writing more about that on this blog and elsewhere.

Finally, the conference was a tribute to the creativity and energy of the conference team at UNSW.  A huge thanks to Alex Steel, Ben Golding, Rebecca Crosby and the rest of the team for inviting me, and for putting on a great event.  It was a privilege to be there.  There was mention of publication, and another conference in the future (once the team has recovered…).  Don’t miss it.

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