Assessment in Legal Education – new book series

Today ANU Press has published Assessment in Legal Education. Critical Perspectives on the Scholarship of Assessment and Learning in Law. Vol 1: England.  It’s the first volume in a series, this volume edited by Alison Bone and myself.  The series editors are Craig Collins and Vivien Holmes (ANU College of Law); I’m consultant editor.  ANU Press is an open-access university press: the book is published online and you can download in various formats, or you can order a paper copy of the book.  The title pretty much says what it’s about, and in the rest of the post I’ll say more about the context of the series and this volume.

One of the earliest impressions I had about legal educational research, back in the early 1990s, was how little creativity there was around assessment.  Having just finished my law degree at Glasgow University Law School in 1992, where assessment, then, was an almost unrelieved diet of closed book examinations, I was aware of how bad curricular and assessment thinking could be; and a brief project on learning and assessment in Scots law schools, carried out for the UKCLE, confirmed the uniform lack of creativity across many law schools.  That brief project set me reflecting about my own experience as a student – at Glasgow we students knew so little about how assessment was carried out elsewhere in Scotland than in our law school – and as a member of faculty in my first post in Glasgow Caledonian University, I knew so little about how law schools beyond my law school and beyond Scotland assessed student learning, or the design thinking behind forms of assessment.

With an interest in digital technologies that stemmed from work on early hypertext systems in the late 1980s, I was aware of the lack of  information in that field too; and once I joined the BILETA Executive I supported the BILETA initiatives to provide information about the new  contexts of learning, teaching and assessment. The digital domain was transforming communications and almost every aspect of our students’ lives, yet there was so little change in faculty teaching practices across the jurisdictions of these isles.^[1]

It was clear to me from those reports that one of the effects of a transition to digital education was a rethinking of how we do conventional education as we reflect upon ways to shift from analogue to digital.  The same was true of assessment: re-imagining practices anew helped to re-design the conventional.  But we also required information and debate about assessment cultures generally in a jurisdiction; and we needed exemplars of innovation and change, and discussion around them – all this was required if we were to improve assessment.

As I began to work abroad, first with colleagues in the Netherlands, in Ireland and later in Hong Kong, Australia and Canada, it also became clear that there was very little comparative information on assessment across jurisdictions.  In working with Dutch colleagues at Utrecht, the Vrei Universiteit, Amsterdam, Delft TU and other law schools, I had to learn what Dutch assessment practices were, understand why they had evolved as they did, and how they were changing or not, so that I could understand the learning and teaching cultures of Dutch law schools.  Since we were involved in the development of new forms of assessment by simulation, we all needed to know much more about what others elsewhere in and beyond Europe were doing in assessment, too.

These conversations and lacunae stayed with me.  After discussions with colleagues in the PEARL centre (Profession, Education and Regulation in Law) at ANU College of Law, the idea of the book series gradually evolved, one focused on the assessment we carry out of students in our care.  The series is based upon five jurisdictions: England, Canada, Australia, USA and a volume on the three smaller jurisdictions of Ireland, Singapore and Hong Kong.  We (ie the editors Craig Collins, Vivien Holmes and myself) hope to publish the volumes in the following order:

We are aware that there are few Asian, and no African, Caribbean, South American or Pacific Ocean Common Law jurisdictions included in this list. Our series was limited in terms of resource and is, after all, an experiment; and should we have more resource in the future then further Common Law together with civilian jurisdictions would be the focus of a second series.^[2]

The first volume in the series comprises a Preface where Vivien, Craig and myself, set out the methodological approach of the series, followed by an Introduction, authored by Alison Bone and myself, that explores some of main themes of recent years in assessment in English legal education.  My co-editor, Alison Bone, is well-known for her research on legal education, and particularly her expertise on assessment (many years ago Alison, Nick Johnson and I worked on assessment projects for the Law Society of Scotland).  This is followed by a first chapter that explores some of the complex themes arising from regulation, regulatory cultures and assessment in English law schools (authored by Julian Webb and myself).  Finally there are four in-depth examples of assessment innovations in the jurisdiction in the last decade or so.

In future volumes we’d like to repeat the three-part structure: an overall Introduction to assessment themes, a first chapter on assessment and regulation in the jurisdiction, and examples of innovations in assessment from the jurisdiction.   The first chapter is important, for one of the most significant influences on assessment in legal education is that of regulation external to the law school.  To take the example of England, we have the regulatory field of HE generally (eg QAA, the TEF, the NSS, for example), the effects of legal regulatory pressures imposed on legal education by professional bodies, eg by the Bar Standards Board (BSB) or the Solicitors Regulation Authority (most notably the Solicitors Qualifying Examination); and there are pressures exerted upon regulators by government and oversight regulators.  And a significant element of that influence comprises, as Steven Vaughan’s research reveals, the misreadings by law school faculty of what regulation does and doesn’t allow us to do in the way of assessment.  All these regulatory initiatives, codes and mandates have bodies of theory behind them that we need to analyse and debate, as well as the effects of regulation on assessment.

But while this is important, the structure of each volume has been planned so that there is also space for jurisdictional editors to develop themes in the Introduction that can then be taken up in more depth or in more contrasts within the regulatory chapter and the exemplars of assessment innovation.  The series editors want volume editors to be using their own expert local knowledge: to be setting their own agendas and have the space to invite chapters from those working in either legal education assessment or theory, or both.  Or indeed to invite those legal educators working with different professional education fields such as medical educators, or with other disciplines such as the Humanities.  The extended introduction also gives editors the space to expand on their views of the history of assessment and its future in the jurisdiction under discussion.

In this way, we hope that the series offers three types of information about assessment: a broad platform for comparison as the jurisdictional volumes are published serially; at the same time some degree of ordered information about assessment within a jurisdiction, and also creative spaces for the discussion of innovation and radical new projects.  The series could also provide a springboard for both future thinking and retrospectives.  We hope it would be possible, for example, that once the series is finished, we could compare the initial chapters on regulation across jurisdictions.  Such comparison is essential to critical understandings of comparative legal education.  In this regard, the font design of the cover (see above) expresses the focus of the series.  It’s about assessment in legal education which involves praxis, but the focus is also on offering critical perspectives on the scholarship of learning and assessment – hence the larger prominence given to the sub-title on the cover page.

There are at least four audiences for the series: students, faculty and others in HE, regulators and those in other disciplines and professions interested in assessment in legal education.  Originally borne out of my experience as a student, the series has to be addressed to those who are our future in the academy and the professions; but we hope it will also help students re-imagine the current reality of assessment they are undergoing which, in many if not all jurisdictions, could be a lot more effective, creative and engaging than it presently is for them.  It’s also addressed to faculty, school administrators and others to help them achieve creative innovation.  And it’s written for regulators: as we co-authors pointed out in the LETR report, the ‘shared space’ approach is essential to good governance in regulation of legal education and for the democratic future of legal education.  I hope that the series will in a small way contribute to enhancing that space, which is becoming increasingly pressurised, not least in economic and political terms.

Two examples of how politics and assessment intertwine…  The first is the attempt by a number of regulators (SRA and the Law Society of Hong Kong for example) to retrench from regulation of professional legal education and create a common assessment regime for entry to the professions.  It’s highly problematic: it reduces the sophistications of professional learnings, is the opposite of a shared space approach to regulation, and offers no vision of democratic engagement but instead a highly constrained interpretation of accountability to public interest where power is concentrated in the hands of the regulator.  The second example is legal education in Ireland, currently undergoing considerable change at the professional stage, given the remit of the new regulator, and the new and highly volatile context of Brexit upon the Irish economy and the legal profession.^[3] This affects Irish legal education in both the short and long terms.  In the long term, it may be the case that Ireland, the largest common law jurisdiction in the EU after those of the UK, will become more civilian in its legal cultures, while legal education itself will integrate much more with civilian systems, as Ireland becomes a bridge for CL and civilian educational practices and approaches.  In both examples above, the current political contexts which are of course entirely different, will profoundly affect legal education assessment and curricula in those jurisdictions: they need analysis and discussion if we are to re-imagine both assessment and curricula.

Finally I hope the series will also be a contribution to the better ordering of research literature in legal education.  As I’ve said elsewhere a number of times, that literature is disturbingly chaotic: we need to organise it better for ourselves, for our students, regulators, policy-makers and others. This series is one small attempt to begin that long process.

These are hopes and wishes for the future.  For now, I would like to thank ANU Press for their assistance in getting the project off the ground, and especially Emily Hazlewood, who I’ve known from my days as Chair of ANU College of Law Editorial Board of the ANU Press. Emily was invaluable in keeping the book on track.  I’d like to thank my series co-editors Craig and Vivien for their insights and support; and my co-editor Alison for helping to pull the volume together and her comments on the project generally and expertise on individual chapters; and to our reviewers of the book drafts.  My thanks to our authors who bore with much patience the effects on me of illness as well as of moving employments (four) continents (three) and houses (two) during the course of evolving the series and editing this first volume.  Julian Webb, Nigel Firth, Craig Newbery-Jones, Nigel Duncan, Egle Dagilyte, Peter Coe, Rachel Dunn, Richard Glancey – now you can see your work in print I hope you agree it was worth the wait…   Final and most heartfelt thanks to my family, sons Euan and Magnus, and Nicola, without whom…

And you dear reader, please take advantage of ANU Press’s excellent free and digital-first approach to scholarly publication (surely a model for other university presses) – download the digital copy and have a look.  Any comments, queries, feel free to post here.

1. ^[1]The reports gave at least an indication of what was happening, and why, in law schools; and what else might be achieved.  Information on issues such as VLEs is still very patchy, as we pointed out in the LETR Report, and as Sefton Bloxham, Patricia McKellar and I pointed out some time ago in a report to UKCLE – see the published summary report.  The excellent work of JISC and others is remedying some of the gaps, however – see for example the UCISA 2018 Survey of Technology Enhanced Learning: Case Studies.↩
2. ^[2]The Canadian volume will of course reflect the situation in that jurisdiction with both civilian and CL traditions of legal education practised there.↩
3. ^[3]The new regulator is the Legal Services Regulation Authority, established by the Legal Services Regulation Act 2015.  For an extensive report on professional legal education in Ireland including the effects of Brexit and the new regulatory regime, authored for the Law Society of Ireland by Jane Ching, Jenny Crewe and myself, see this Report (pdf of 204 pages).  For the report’s literature review, see the  Comparative Analysis of the literature on Irish professional education (pdf of 233 pages).↩