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Problem Based Learning and New Zealand Legal Education
Senior Lecturer, School of Law University of Waikato, Hamilton, New Zealand. email@example.com Copyright © Jacquelin Mackinnon 2006 First published in Web Journal of Current Legal Issues
The literature (and e-literature) on Problem Based Learning in Law suggests that this approach has been adopted with enthusiasm by some lecturers in the United Kingdom, Europe and Hong Kong. This article will explore the adoption of PBL approaches through the literature in order to draw some conclusions about the nature of PBL approaches in law and their relationship with institutional approaches to legal education. Problem Based Learning approaches are not visible in New Zealand. The article discusses the reasons for PBL‟s invisibility and PBL‟s appropriateness in the New Zealand legal education context now and in the future of legal work. Part of the New Zealand context is the participation of the indigenous people in legal education and consideration is given to whether PBL can benefit Māori law students. It is suggested that PBL approaches to learning law promote: Contextualisation Interdisciplinarity Integration of prior personal and/or professional knowledge Collaboration Enquiry skills Reflection and transition Self directed learning and self assessment Praxis. Problem Based Learning requires and fosters reflexive participants, who are sufficiently conceptually literate to read and critique key aspects of the social order and to understand their 1
own, and others‟ status and role in it. Reflexivity contributes to humanist as well as legal solutions to complex human problems. PBL approaches are consistent with legal education in an increasingly global employment market.
Introduction Characteristics of Problem Based Learning Advantages of Problem Based Learning Disadvantages of PBL approaches Theoretical drawbacks Institutional drawbacks “Partial” PBL Will Problem Based Learning be adopted by New Zealand Law Schools? The Law Schools and adoption of Problem Based Learning The New Zealand Universities and the adoption of Problem Based Learning Legal academics and adoption of Problem Based Learning Problem Based Learning and conceptions of teaching and learning. Legal Knowledge and Legal Pedagogy: resistance to PBL The Legal Profession and other employers The New Zealand Council of Legal Education Government and Funding Students Conclusion Bibliography
Problem Based Learning (PBL) approaches support the achievement of university legal education goals. These goals are articulated by the various stakeholders in university legal education. It would appear that there is a gulf between the rhetoric of university “goal-setting” and the reality of teaching and learning law in New Zealand that could be narrowed by the adoption of PBL. Law schools are not untouched by “massification” issues in higher education and a growing number of law lecturers are serious consumers of and contributors to higher education literature, yet PBL approaches to teaching and learning do not appear to be used in New Zealand law schools. There are serious barriers to implementing PBL approaches in New Zealand and some of those barriers may also exist in the United Kingdom, Australia and Hong Kong. This article sets out the benefits of PBL in the context of the increased number of heterogeneous students, and the rapidly changing world of legal work. PBL approaches are consistent with the idea (and ideal) of a liberal and humanistic legal education. In the New Zealand context, it is suggested that PBL can be an appropriate part of a bicultural approach to legal education. A bicultural approach to legal education requires an understanding of Māori principles and values, of beliefs about knowledge and the sharing of knowledge, and of ways of 2
learning. Problem Based Learning characteristics appear to be consistent with Māori pedagogies, although this area requires further research. Approaches to teaching and learning, however, which encourage critical examination of ourselves as law teachers and curriculum designers, and our discipline, are unlikely to find favour with university managers focussed outwards on servicing consumers and responding to “market demand”. This article is in two parts. The first looks at characteristics of PBL and their relevance to the education of legal knowledge workers. In the second part, a “stakeholder” analysis is used to identify barriers to PBL adoption in New Zealand. A stakeholder analysis reflects university education discourse in New Zealand. Also, it is appropriate to use a stakeholder analysis because of the clear evidence of past stakeholder influence on conceptions of teaching and learning law, and the development of undergraduate legal education in New Zealand. Such a methodology properly takes into account when considering change the interests of any current group or individual who can affect, or is affected by the achievement of changes to legal education (or any future group or individual whom one can predict will affect or will be affected by such achievement) and who has rights that can be violated or ought to be respected. (Evan and Freeman 1988, inter alia p100).
Characteristics of Problem Based Learning
The following characteristics are used to compare PBL with problem solving approaches to teaching and learning law: With PBL, the o problem is the first step in learning o problem is constructed by learners presented with “real-life” tasks o learners identify learning needs and methods of knowledge acquisition, helped by “capable peers” o new learning is then applied back to the problem and integrated into existing knowledge and skills as an iterative process o learner is central to the approach. (Boud and Feletti (Eds), 1991 et al.) With problem solving, the o problem follows topic/discipline information o problem is already constructed within topic/discipline boundaries o solutions reflect the topic boundaries and are based on taught materials o skills needed to solve problems may or may not have been taught o problem solving approach is teacher centred. A distinction is thus made between the use of problem solving in teaching and Problem Based Learning. Law schools have traditionally used problem solving for teaching and assessment. Problem solving in this context involves the application of knowledge already gained to hypothetical fact situations that give rise to legal issues. This is ordinarily done at the end of a conceptual unit or at the end of a course and assesses knowledge either formally (in examinations) or informally (within a tutorial group, for example). The lecturer assigns the reading required for the problem and the problem is distributed contemporaneously with the readings or at the end of the conceptual unit, or the problem appears in the final examination. The focus is on information provided by the teacher and evaluation of the solution proposed by
the student based on that information. The problem content is usually confined to the particular conceptual unit within a course (except where used in final examinations) and is unlikely to require an interdisciplinary or multiple legal category analysis. Students may, or may not, have learned problem solving skills and strategies prior to addressing the problem. Problem solving, as traditionally employed in law schools, is used to test learning that has already occurred and this is different from Problem Based Learning, which is used to motivate and focus knowledge and skills acquisition and reflection on learning.
Advantages of Problem Based Learning
Problem Based Learning is a method of teaching and a way of learning. (Engle 1991, p23.) It has no set definition, but there are common conceptual elements to approaches to teaching and learning that self-identify, or have been identified, as Problem Based Learning. At its heart is the use of “real world” problems to motivate and focus learning. Problem Based Learning builds on research into the effectiveness of experiential learning and the accommodation of different learning styles. It values the acquisition of generic competencies with regard to learning that are necessary for a world where knowledge rapidly changes and is in line with the current emphasis on independent learning. (Boud, 1995; O‟Sullivan 1999.) It supports abstract thinking and critical thinking. It can provide learners with an opportunity to “examine the underlying structures and belief systems implicit within a discipline or profession…in order to not only understand the disciplinary area, but also its credence.” (Savin-Baden 2000, p 133). Learners can become reflexive practitioners. Problem Based Learning reflects a constructivist view of learning, where knowledge is constructed internally and tested through interaction with the outside world, and the Vygotskian social constructivist perspective which stresses the importance of social context for knowledge development. (Trigwell and Prosser, 1997 pp 241252.) PBL can help teachers and learners meet key challenges in tertiary education systems (including that in New Zealand) characterised by increasing student numbers, increasing numbers of students from “non-traditional backgrounds”, in line with policies of increased participation in higher education (Statement of Tertiary Education Priorities, 2005-2007 (NZ)), and highly instrumental curricula (arguably in reaction to funding constrains and students‟ demands (Brand: 1999, p 111)) Problem Based Learning is not new, having been employed in higher education institutions since the 1950s. The literature reviewed suggests that the adoption of Problem Based Learning is prevalent in First World countries and professional schools of study in tertiary institutions, for example McMaster University Department of Medicine, Canada and Maastricht Faculty of Law, The Netherlands. (Moust 1998, pp 5-36.) Yet there is comparatively little written about the use of Problem Based Learning in the discipline of Law in countries that share a legal education tradition with New Zealand. In 1997, Murdoch University School of Law, Australia (as well as Maastricht Faculty of Law) regarded Problem Based Learning as a new instructional approach for law. There is also evidence of confusion regarding the nature of Problem Based Learning amongst legal educators, who may believe that use of the case method or hypothetical questions is Problem Based Learning when it is not. (Tzannes 1997, pp180-197.)
The principal idea behind Problem Based Learning is “…that the starting point for learning should be a problem, a query or a puzzle that the learner wishes to solve”. (Boud 1985, pp 1318.) The problem, query or puzzle is the motivation for and focus of the learning. The motivation is due to interest in the subject matter. Students learn through discovery; discovery of the nature of the problem/issues, discovery of the processes required for issue identification, analysis, synthesis and evaluation of materials, and discovery of solutions. The teacher becomes the facilitator of discovery to a greater or lesser extent. (For a discussion on open and guided discovery see Swanson, Case and van der Vleuten 1991.) Problem Based Learning fosters scholarship and facilitates contributions to knowledge and to society at a time of accelerating and massive change (Engle 1991, p 23.) and reflects the articulated values and goals of higher education institutions in the Western tradition. Although there is no “check list” of practices, the literature reveals that the major conceptual elements of Problem Based Learning are: Contextualisation Interdisciplinarity Integration of prior personal and/or professional knowledge Collaboration Enquiry skills Reflection and transition Self directed learning and self assessment Praxis. Adoption of Problem Based Learning involves adoption of some or all of the above elements. The advantages of PBL are that it provides students with an experience that is closely aligned with the real world of legal work as we currently know it, where problems are unstructured and cover legal and non-legal issues; where problems are solved using current and new knowledge; where the knowledge of others may have to be found and integrated; and where the problem solver is motivated by personal and professional values. Reflexivity will enable students to be self-evaluating and self-aware, and to actively critique and transform the nature of legal work, instead of being passively accepting of change. The reflexive practitioner reflects on experiences and makes connections between the various elements of an experience. It is “reflection-inaction” and “reflection for action”: as the practitioner attempts to make sense of a puzzling phenomenon, the practitioner reflects on understandings implicit in the action and those understandings are surfaced, criticised, restructured and embodied in further action. (Jolly and Radcliffe 2000, p 3) This aspect of PBL is important if legal education is to be relevant to legal knowledge work as we now know it, and also relevant to contexts of which we can presently see only fragments through the work of Beck (2000), Beck, Giddens and Lash (1994), Castells (1996, 1997, 1998) and others. If the key challenges for university legal education are that it should be relevant beyond the legal profession as presently constructed, to take a collective law school-wide approach to integrate “matters such as legal theory, interdisciplinarity, ethics, general and legal skills, and issues of internationalisation, gender and indigeneity” (Keyes and Johnstone 2004, pp 537, 538), then the
characteristics of PBL approaches directly address these challenges. PBL is, however, not without its critics.
Disadvantages of PBL approaches
Adoption of PBL is not without its disadvantages and problems. The problems are, broadly theoretical and institutional.
There are a number of models of PBL (Savin-Baden, 2000, p 124 et seq.) It has been argued that PBL, in many of its manifestations, is limited to the acquisition and organisation of relevant information for decision-making. Reflection and abstract conceptualisation may be unnecessary and the PBL experience inferior to “real” experiential learning. (Drinan 1991, p 315.) Against that, the acquisition of relevant information does involve the identification of relevant concepts. In the practical situations in which graduates will find themselves, a conceptual framework is constructed for the selection, analysis and organisation of information. When presented with a statement of facts, a lawyer must identify facts that give rise to legal issues and facts that give rise to non-legal issues and facts that are irrelevant to both legal and non-legal issues. To determine legal issues, lawyers must identify the subject matter of the dispute at various levels of abstraction; facts must be related to legal categories, and the people involved may have a special relationship in law or in fact. Available legal remedies are determined by the legal categories into which the facts fall and the application of the law related to the legal categories to those facts. Fact analysis in law, whether to avoid problems or solve problems involves both reflection and abstract conceptualisation. This is recognisably the broad process of finding solutions to problems described by Gagné (1966). Drinan‟s picture of PBL as shallow pragmatism is false. It is accepted that there is a lack of comparative evaluation of Problem Based Learning changes to curricula (Cawley 1991; Foster and Gilbert 1991) although some useful research has been done more recently. (Kwan Liddle 2004, p 55.)
PBL is resource intensive, both in design and in delivery. Law schools are by tradition conservative and like to stress their uniqueness, even amongst professional schools. The traditional problem solving approach adopted by law schools is not resource intensive and fits well with a teacher-centred, lecture plus tutorial approach to teaching and learning. Law schools in New Zealand have many more applicants than places and a low dropout rate. Unless there is an impetus for change, institutional support for the well designed incorporation of Problem Based Learning with its requirement for sound planning and trained staff is unlikely to be obtained. But evaluation and change should not take place only in reaction to identified difficulties. Lecturer workload models ought to include space for evaluation and re-design of courses. There is a wider institutional context which may militate against the adoption of Problem Based Learning. This context, to be found in Canada, Australia, Britain and the US, has been summarised as including longer hours of work, increased marking and pressure to publish, new 6
administrative tasks and the fragmentation of work time, loss of collegiality, alienation and stress, and "aging, malaise and marginality". (Knight and Trowler 2000, pp 69-83.) Problem Based Learning needs institutional support, but may succeed where the teaching team for a particular paper is committed to this way of learning. Any change to incorporate Problem Based Learning requires that all teachers involved are convinced that PBL approaches result in effective learning. These teachers have to have a conception of tertiary teaching and learning that translates into learner-driven classroom practices. Institutional drawbacks will be further considered in the analysis of stakeholder in New Zealand legal education. Despite these significant drawbacks (that PBL is misunderstood, resource intensive, and novel) there are examples of its successful introduction – even in a law school. Problem Based Learning: the Maastricht Law School as a model “Traditional” ideas about legal knowledge and legal pedagogy have not been insurmountable barriers to the adoption of a PBL curriculum at the Maastricht Law School. It is significant that PBL was a university-wide initiative, adopted by seven faculties. This introduces economies of scale in relation to staff development. It has been argued by Ian Murray and Maggi Savin-Baden (2000, p 107) that staff development needs to play a key role in any PBL implementation strategy. Staff require support to translate PBL characteristics into a coherent curriculum. Teaching as facilitation of learning may be a new concept for staff, and it requires different skills from teaching as “transmission”. Learning about PBL models the characteristics of a PBL approach when adopted at an institutional level; contextualisation, interdisciplinarity, integration of prior personal and/or professional knowledge, collaboration, enquiry skills, self directed learning and self assessment, and praxis are all required of staff moving towards the adoption of PBL. At Maastricht, PBL informs the whole of the four-year curriculum. This provides for their students a consistency in teaching and learning that breaks down any resistance to students engaging with PBL that can occur when PBL is used in one course or a part of a course. Interdisciplinarity in the Maastricht context occurs by requiring students to complete units on a specific theme, with content that cuts across traditional legal categories, for example public law and private law. The Maastricht Law School website gives access to sample problems from various units at < http://www.unimaas.nl/pbl >. The PBL characteristics of collaboration, enquiry skills, self directed learning and self assessment can be seen in the delivery of the Maastricht PBL process. Teachers across legal categories collaborate to produce teaching and learning resources. The resources include references to readings, and so the approach is not one of totally self directed learning. It is important for students in the early years of a law degree to have some assistance with materials. Students of law do not come to the discipline with prior knowledge in the same way as science, history or English students, especially if they are school leavers. Teachers‟ collaboration extends to teaching the “unit” and teaching and learning occurs in small-group tutorials (12 students), skills training “practicals” and lectures. Setting the problem in a “real world” context, rather than the “law school world” of single legal category problems is intended to stimulate self directed enquiry, collation and synthesis of information by the students and ability to apply knowledge to the problems. Reflection in the midst of and for action is important and reflexive insights contribute to both problem solutions and priorities for subsequent learning. (Jolly and Radcliffe
2000.) The learning process is iterative: the students are assisted to identify their learning goals and then to reach those goals. Reaching those goals prompts reflection, critical thinking and further questions and new goals. Tutorial groups have tutors trained as facilitators. Tutors provide questions rather than answers. Students are asked to reflect on their learning process and are provided with feedback. An article of this length cannot do justice to the rigour of the Maastricht approach (Moust 1998, p 5), but it can be seen that the new curriculum has the support of important stakeholders such as the university, the law faculty academic staff and the students. It can be inferred that staff and also students have moved beyond the “transmission/reception” idea of teaching and learning. (See also Yang Joel Wong 2003, p 157 as another example institutional support for curriculum change.)
The Maastricht Law School is unusual in making PBL central to the law curriculum. A number of PBL law case studies and teaching notes have the following characteristics: PBL is used within one course or topic (e.g. Constitutional and Administrative Law at the Norwich Law School, University of East Anglia, UK; Applied Legal Studies at Hong Kong Polytechnic University, Hong Kong); Change is driven by like-minded law teachers (e.g. Company Law at Southampton Institute, UK) or an interdisciplinary group of academics (e.g. Faculty of Law, Queensland University of Technology, Australia); PBL and teaching law in context are seen as compatible (e.g. Division of Law, Macquarie University, Australia). Looking from the outside in, it is impossible to know why adoption of PBL approaches is not institutionally driven either at law faculty or university level in the particular examples cited. But Vivienne Brand‟s article (1999, p 109) on the impact of policy reforms in tertiary education on law teaching in Australia provides some insights that might be relevant to institutional attitudes to the adoption of PBL. Brand notes the false dichotomy of legal education that is driven by either “market requirements” or by “more realistic educational values”. (Brand 1999, p 109) Brand states that the Australian universities and their law schools were faced with economic policy reforms that forced them to “accommodate the market” by concentrating on a legal practice focus while broadening the curriculum to meet diversified student career interests, with changes in funding turning student stakeholders into clients.(Brand 1999, p 122.) Brand concludes that the impact of the policy reforms has resulted in the reinstitution of close connections between academics and the legal profession, an increasing integration of practical legal training into degree programmes, bigger class sizes, and inadequate funding for innovation. Law schools are offering naming rights to the legal profession in return for sponsorship. (Brand 1999, p 139.) It would appear that government, the legal profession and students are the dominant stakeholders in shaping legal education in Australia, with academic innovators far down the list of stakeholders to be accommodated. There is no meaningful support for innovations that have PBL‟s (more resource intensive) characteristics. The Australian experience is shared to a large extent by New Zealand.
Will Problem Based Learning be adopted by New Zealand Law Schools?
If the analysis of the advantages of the adoption of PBL and its relevance to present and future legal knowledge work is correct, then it is appropriate to consider whether PBL approaches are likely to be adopted by New Zealand law schools. Problem Based Learning approaches to learning law in New Zealand are not visible in the literature on PBL. This is not to say that partial adoption of PBL has not taken place. In the absence of evidence from the literature, it is difficult to conclude anything other than that PBL has not been adopted as central to the law curriculum. That law teaching is traditionally individualised and isolating is as true for New Zealand as elsewhere (Keyes and Johnstone 2004, p 542). Often there is little opportunity for discussion about teaching and learning within schools. It is even more difficult for an outsider to get a true and complete picture of the classroom experience and teacher initiatives within an LLB programme. For these reasons, this part of the article is focused on institutional adoption of PBL approaches as central to the law curriculum. As has been seen, influences on curriculum and teaching innovation can be grouped by stakeholders. A useful way of exploring advantages of and barriers to the adoption of PBL in New Zealand is to group them around the various stakeholders in New Zealand legal education. The dominant stakeholders in New Zealand university legal education are: The Law Schools Legal academics The Universities Law students The legal profession and other employers The NZ Council of Legal Education Government and its constituent parts.
The Law Schools and adoption of Problem Based Learning
Mary Keyes and Richard Johnstone, in their article “Changing Legal Education: Rhetoric, Reality, and Prospects for the Future” (2004, pp 537-538.) identify five dominant characteristics of the traditional model of legal education: It is teacher-focused, tertiary education qualifications or training is not supported, and teachers replicate their own learning experiences; It is almost entirely concerned with teaching legal rules in discrete subjects; Generic skills are given little express consideration; Law is an autonomous discipline, sui generis within the university; The needs of the legal profession are privileged; The law school experience is individualised. The traditional model has been subject to justified criticism in New Zealand as elsewhere, and such criticism was levelled in the Report which led to the birth of New Zealand‟s newest law school, at the University of Waikato. In 1988, the University of Waikato published Te Mātāhauariki, the Report of the Law School Committee of the University of Waikato. The Report argued for the establishment of a new
School of Law at the University of Waikato. Central to the Report was a recognition of the need for a legal education that reflects the needs and concerns of people in a bicultural society; that is accessible to both Pakeha and Maori (particularly those from the region served by the University of Waikato); and that has a “law and society” focus. The “law and society” perspective reflected LLB curricula in new law schools overseas (such as those at Warwick and Keele in the United Kingdom, and Monash and Macquarie in Australia) but was located in Te Mātāhauariki within the particular New Zealand context of the Treaty of Waitangi and the notion of “a partnership of good faith” that is central to the Treaty. The Report regarded as desirable the integration of law courses with courses from other disciplines. (Te Mātāhauariki 1988, pp 1, 14-17, 22-24.) Te Mātāhauariki followed upon a Report on the Reform of Professional Legal Training in New Zealand, prepared by Professor Neil Gold, currently of the University of Windsor, Canada. Te Mātāhauariki makes reference to the section of Professor Gold‟s report that refers to the LLB curriculum existing in New Zealand at the time. Professor Gold observed that a law in context curriculum was a requirement of modern legal education. (Gold 1987, 19) The focus of this Report is the need for reform to achieve a satisfactory level of training for legal practice. However, in the part of this Report that addresses the LLB curriculum, Professor Gold further states that undergraduate level legal study requires the acquisition of cognitive skills and strategies which are more or less common to all higher level disciplines. He identifies problem solving as an important skill set and states: In the best of all possible worlds it is a general legal education which prepares graduates to face and adapt to change in all aspects of their lives, but especially throughout their legal careers. Law is anything but static: It is effective lawyers who can respond to the dynamic forces with which they are bound to be faced…In the end, we are reminded the law degree is a general preparation for a variety of professional and career options: it must be enabling in varied ways. (Gold 1987, pp 17 and 19) Both Te Mātāhauariki and the Report on the Reform of Professional Legal Training in New Zealand identify the nature of legal education in the 1980s to be the provision of a professional legal education, which is conceptually-centred, contextual and interdisciplinary, and which (identified in Te Mātāhauariki) required a bicultural approach. Legal education was to share the purposes of higher education generally (reflecting the acceptance of Law as a “proper” university discipline, whilst ensuring that it remained an appropriate pathway to legal practice). The vision of legal education indicated by both Reports was adopted at Waikato and, over time, by the other New Zealand Law Schools. This can be seen in the statements that the Law Schools make about their legal education goals. But as with the Reports cited by Keyes and Johnstone (2004, p 543), Te Mātāhauariki and the Report on the Reform of Professional Legal Training in New Zealand do not specifically address the particular teaching and learning methods that should follow the adoption of their recommendations. Nearly twenty years on from these Reports, it is possible to identify law schools‟ teaching and learning goals in documents in the public domain. In the modern environment of university strategic documents, New Zealand law schools have become more accustomed to producing strategic or business plans that make commitments to excellence in teaching. The following are presented as examples:
The Victoria University of Wellington Strategic Plan, 2002-06 summarises its approach to teaching as: provid[ing] to students an excellent education across all areas of law. At its centre this should teach students how to apply the techniques of legal analysis rigorously and critically, to any issue they may come across, with a keen appreciation of its social, cultural, economic, and political context. The Waikato Law School has a teaching and learning plan which aligns with the School‟s Business Plan, the University of Waikato Teaching and Learning Framework and the University‟s Profile 2005-2007 document. The plan identifies the need to promote, identify, support, and enhance excellence in teaching and learning at an international standard, consistent with the School‟s vision, mission and values. Its general mission is to provide legal education and research programmes of high quality pursuant to its founding goals of professionalism, biculturalism and the study of law in context. If New Zealand legal education is to be conceptually-centred, contextual and interdisciplinary, and bicultural, then one would expect there to have been a movement away from the dominant characteristics of the traditional model identified by Keyes and Johnstone. It is argued that the law schools ought to make PBL approaches central to the LLB curriculum. The PBL characteristics of contextualisation, interdisciplinarity, integration of prior personal and/or professional knowledge, collaboration, enquiry skills, reflection and transition, self directed learning and self assessment, and praxis are clearly consonant with the articulated goals and aspirations of New Zealand law schools. The New Zealand law schools are often in the position of having to react to external pressures that militate against innovation rather than having either the freedom or the support necessary to make fundamental changes in support of a particular vision of legal education. Innovations such as signalling approval of a generalist higher education through approving the double degree, and crediting “non-law” papers towards the LLB in the first and second years of study are supported because of the income that the other schools within the universities derive from enrolments. Innovation that requires greater resources for the law schools would run contrary to the position that law schools which follow the traditional model of legal education are inexpensive and are able to cross-subsidise schools perceived as requiring greater funding. At the same time the law schools must be protective of the “differences” of the discipline. The schools promote, internally and externally, their research into legal rules and doctrine and the ways in which this discipline specific knowledge serves society, which position meets the expectations of the legal profession and the New Zealand Council of Legal Education. Through programme design and the electives offered, they appear to reproduce the positivist paradigm of law and lawyering, sometimes consciously to emphasise their role in preparing students for the traditional idea of the practice of law (in response to concerns expressed by the legal profession and perceptions of what students want), or because change is expensive, risky and constrained by the requirements for admission to the profession as set out by the New Zealand Council of Legal Education (Professional Examinations in Law Regulations 1987). Of these pressures, funding is the most important.
The New Zealand Universities and the adoption of Problem Based Learning
Making PBL central to the law curriculum will require the support of the universities, most importantly in the area of funding. An examination of the documents regulating the operation of the universities shows that there is no regulatory barrier to adoption of PBL and significant evidence that PBL would support achievement of the universities‟ goals. In New Zealand, only five of the eight universities provide the LLB degree. The universities operate under charters and in accordance with profiles. Both of these documents have prescribed formats under the Education Act 1989 (NZ). Section 160 gives the universities independence and freedom consistent with efficiency, accountability and the national interest. The Act is to preserve and enhance academic freedom and institutional autonomy. “Academic freedom” is defined in traditional terms: the universities‟ mission is intellectual inquiry and dissemination of knowledge, they appoint their own staff, engage in research, regulate the subject matter of courses and “…teach and assess students in the manner they consider best promotes learning”. The price to be paid is found in s 161(3) (b) which deals with accountability and the proper use of resources. The provisions of the Education Act 1989 support a bland university purpose and recognise university education as a public good. Government is identified as a stakeholder in university education. University charters state the university‟s purpose, role and contribution. Drawing from these documents, one can add further New Zealand stakeholders in university education. These stakeholders include regional communities, Pacific Islanders (staff and students) Māori students and Māori iwi (as tangata whenua, the indigenous people of the region). The University of Canterbury Charter Goals specifically mention Asian students, staff and communities in the Canterbury region. New Zealand universities receive statutory direction about their role in educating students. The information about purpose and stakeholders contained in the Act and the related charters and profiles provides an important context for law schools when undertaking curriculum review and development. Schools are required to operate within and contribute to the university “mission” in an explicit way. The needs of the various communities are an important consideration when seeking university support for resource intensive innovation such as adoption of PBL. It is argued that the characteristics of PBL can assist quality teaching and learning for some of the communities recognised as stake holders. Commitment to Māori is an important part of the universities‟ documentation, reflecting the tangata whenua (first peoples) status of Māori. A bicultural approach to legal education requires an understanding of Māori principles and values (kaupapa Māori), and beliefs about knowledge and the sharing of knowledge. In traditional Māori society (an oral tradition) much of the formal teaching and learning followed the transmission model. Tohunga (experts who were repositories of tribal knowledge) transferred knowledge by recitations that were learned by those chosen as the next generation of knowledge holders. (Te Aho and Mackinnon 2004, p 260) However, participation, experience and questioning were also important ways of learning and students could attend meetings where tohunga debated and investigated the truth of knowledge held. (Hemara 2000, pp 15, 21) Joan Metge describes a learning strategy, which she calls “education through exposure”. (1983.) This involved exposing students to situations in which they were required to identify the context of their situation and solve problems that arose, supported by teachers. Hemara identifies elements
of constructivism within Māori pedagogies (2000, p 37) where learners are guided to zones of proximal development, as well as elements of peer assessment. (Hemara 2000, p 39.) Teachers and learners learned from each other. (Hemara 2000, p 45) It is suggested that teaching and learning approaches that are consonant with traditional practices would assist Māori achievement in the study of law. This assertion is supported by the existence of Wānanga such as Te Wānanga o Aotearoa. Wānanga are New Zealand Tertiary Education Institutions that provide tertiary education in a Māori cultural environment (but none of them offer an LLB programme). Te Wānanga o Aotearoa‟s Charter refers to a collaborative learning environment and a commitment to “[e]nsure [that] kaiako [mentors or teachers] and kaitiaki [guardians] have the resources and training necessary to support learner success holistically. The concept of kaiako as both teacher and student is key to relationships with students”. (www.twoa.ac.nz). The Problem Based Learning characteristics of collaboration, enquiry skills, reflection and transition, are clearly relevant to supporting Māori achievement, and adoption of PBL by law schools could be clearly linked to universities charters and profiles. The insurmountable barrier to university support for adoption of PBL by law schools may again be funding. New Zealand universities‟ income is predominantly from Government funding per equivalent full time student, supplemented by tuition fees (the fee levels are presently capped). The universities are competing for students at a time of rising employment. In the year to September 2005, the number of full-time equivalent employees (FTEs) increased 4.0 percent and filled jobs increased 3.5 per cent. (Statistics New Zealand Quarterly Employment Survey, September 2005 Quarter.) As previously stated, law schools are often regarded as a means of cross-subsidising less “cost effective” schools and in the absence of a concerted demand for PBL from dominant stakeholders universities are unlikely to agree to greater resources for law teaching and learning.
Legal academics and adoption of Problem Based Learning
Problem Based Learning approaches to legal education cannot be central to the law curriculum without the full support of all legal academics within a law school, even if there is an institutional “push” for PBL adoption. Unless the institutional stakeholders provide real support for professional development, address issues of increased workload, and explain to the profession and to students that PBL approaches produce graduates with enhanced attributes and the necessary doctrinal knowledge and legal skills, then legal academics will be justified in choosing to make less onerous changes to their teaching practice. Adopting PBL approaches often requires a change in conceptions of teaching and learning, and ideas about legal knowledge and legal pedagogy.
Problem Based Learning and conceptions of teaching and learning.
There is a strong relationship between conceptions of teaching and approaches to teaching. (Trigwell and Prosser 1996, p 282.) Problem Based Learning is likely to be seen to be without validity where the prevalent conception of tertiary teaching and learning is the transmission of
legal knowledge from expert to neophyte rather than as facilitating cognitive and affective growth. Change to Problem Based Learning practices would require commitment to conceptions of teaching and learning that value teaching as making student learning possible. For Problem Based Learning practices to be successful, such conceptions ought not to be undermined by teachers of papers where PBL practices are deemed inappropriate, nor should there be a dislocation between such conceptions and the wider institutional view of teaching and learning. Problem Based Learning is likely to be effective in an institution which states its commitment to law-in-context teaching and where staff and students are committed to interdisciplinary perspectives.
Legal Knowledge and Legal Pedagogy: resistance to PBL
Adoption of a PBL curriculum challenges ideas about the law curriculum, legal knowledge and legal pedagogy held by legal academics and other dominant stakeholders. Rhodes-Little has identified that with the fusion of the pathway to the legal profession and the pathway to the LLB degree (a reflection of political and economic stakeholder interests), doctrinal exegesis became the dominant approach to legal education. The “compulsory/optional course” dichotomy (where certain courses are compulsory for admission to the LLB and others are optional) reinforces political and economic interests of the dominant societal groups e.g. property law/family law, contracts/employment law, as does the public/private dichotomy central to liberalism, for example the distinction between contracts and private arrangements. The affective dimensions of life do not appear in the context of objective, neutral laws. The positivist, formalist dimensions of law are perpetuated by the structure of the law curriculum, legal academics and law students due to the homogeneity of interests and values; law students are inducted into the concepts, techniques and customs of the discipline as defined by the profession. Those students who find the discipline consonant with their prior personal and professional knowledge are successful. Those who find dissonance have difficulty. (Rhodes-Little 1991, pp 55, 58.) The reflexive dimension of Problem Based Learning challenges hegemonic practices and meets with resistance from stakeholders. Past attempts to integrate law and social sciences in response to the American Realist Movement attacks on the objective, neutral nature of law failed to produce true interdisciplinarity. “Interdisciplinarity” has caused difficulties in creating or developing and implementing new curricula. The legal academic who is expert in another discipline is presently a rarity; “interdisciplinarity may amount to no more than a vacuous form of eclecticism”. (Thornton 1991, p 17.) The rise in many universities of the “double” degree (where law remains formally and actually unconnected) does not equate to the rise of interdisciplinarity. Interdisciplinarity has, at the Maastricht Law School, been translated into a curriculum that transcends the usual legal categories, but is not connected to disciplines outwith law. That interdisciplinarity is beneficial is accepted at Griffith University, Australia, which does have an integrated Law and Environmental Science degree, at least in the final year. (Godden and Dale 2000, p 239.) New legal pedagogy requires consideration of new ideas of legal knowledge that question objectivity and rationalism and are antipathetic to the positivist and formalist legal traditions that have the support of the universities, legal academics, law students and the legal profession as dominant stakeholders. Universities want students: it is a recurrent theme that the funding of law
schools is posited on a transmissive model that is cheap, holding down fees. Students want credentials that translate into jobs. The legal profession wants doctrinal knowledge and legal practice skills. The government in New Zealand wants economic contributors and managers of the existing legal system. Conceptions of legal knowledge and legal pedagogy can be barriers to PBL adoption at a curriculum level. Interdisciplinarity and true collaboration can be seen as superfluous to stakeholder requirements. At the very least, time constrains both curriculum content and pedagogical approaches. And “knowing that” competes for time with “knowing how to”. Selfdirected, reflective learning conflicts with credentialing. What we teach in law and how we teach law in New Zealand appears to reflect the current requirements of dominant stakeholders and not the characteristics of PBL.
The Legal Profession and other employers
Although a high percentage of law graduates no longer choose private practice as a career, the legal profession nevertheless dominates the shaping of the LLB curriculum. It does this in part through making well known its preferences for the sort of graduates it wants the universities to produce. Unlike the UK profession, the New Zealand profession is only open to graduates with an LLB degree. The profession, as yet, has little experience of graduates who are well grounded in other disciplines, and this breeds a conservatism in the profession which seems intent on replicating itself. The other avenue through which the profession influences the curriculum and teaching methods is via the Council of Legal Education discussed below. The profession – but not governmental departments or other employers who might be better disposed towards interdisciplinary law and policy graduates or generalist problem solvers – is well represented on the Council. As has already been suggested, the legal knowledge worker in the 21st Century must be prepared for and equipped to shape the “brave new world of [legal] work”. (Beck 2000.) Legal educators can serve the profession and other employers by preparing legal knowledge workers to participate and survive as “intelligent citizens in a globalising polity; and to serve as ethical professionals in the changing and uncertain world of globalised practice.” (Havemann and Mackinnon 2002, pp 65, 69.) Legal education must foster both critical and technological literacies, and reflexivity in preparation for changes from formal work and full employment: “the future is becoming more open”. (Beck 2000, pp 21 and 22.) It is critical to the adoption of PBL that legal educators are prepared to educate employers about their future needs, rather than react to employer demands.
The New Zealand Council of Legal Education
The New Zealand Council of Legal Education is a creature of statute. At its inception, its membership reflected the recognised stakeholders in legal education in the 1930s, the legal profession and the University, with majority membership lying with the profession. The dominant influence within the Council was important given the nature of the powers of the Council. The Council of Legal Education was given the power to make recommendations to the Academic Board of the University
“with respect to any matter relating to legal education; and in particular may make recommendations with respect to the courses of study, the examination, and the educational and practical qualifications of candidates for admission”. (New Zealand University Amendment Act, s 3(2).) It was difficult for these recommendations to be ignored. Essentially, in 1930 the legal profession appeared to relinquish control of legal education to the University through the Law Practitioners Amendment Act 1930 and yet retained its place as a dominant influence on legal education through the New Zealand University Amendment Act 1930 and the establishment of the Council of Legal Education. The Council remains an influential stakeholder in New Zealand legal education under the Professional Examinations in Law Regulations 1987 (NZ). The regulations require that candidates for admission to the legal profession have satisfied the LLB requirements. Each of the university law schools has had the degree programme approved by the Council and the degree programmes must include specified “core‟” courses. These “core” courses are compulsory for admission to the LLB degree at each of the five universities that offer the degree. The syllabus for each of these courses is set by the New Zealand Council of Legal Education and any proposed prescription change is subject to both university and Council approval. It is an objective of the Council to oversee the coverage and quality of legal education in New Zealand, especially (but not solely) with reference to maintaining standards for candidates for admission as barristers and solicitors. More significantly for present purposes, the Council also appoints examination moderators for “core” courses from the legal profession and the judiciary and it requires that the core courses all have traditional three hour examinations. The moderators must approve examination questions and marking. The Council currently comprises a New Zealand Law Students‟ Association nominee, a Minister of Justice nominee, the Deans of the five law schools ex officio, three members of the judiciary and five member of the legal profession. Without wishing to imply “block voting”, law school Deans are outnumbered by the judiciary and the legal profession, and the degree of oversight of curricula is surprising. Innovation can be contentious, particularly in light of the competitive environment in which universities operate. If changes to the “core” courses in one law school are put forward, these changes may be perceived as giving that school a competitive advantage. There is a temptation, at least, to impede innovation unless all of the law Deans are in agreement and all have the resources to implement change. Even if an important change such as making PBL central to the LLB in a truly interdisciplinary form were to be approved by the Council, for a single school to make such a change would be risky. The school would be “out of step” in the eyes of prospective students, who might prefer the known to the new. Since funding follows students, funding could be cut and the conditions for operating a PBL environment successfully (in terms of professional development, for example) would no longer exist. Historically, funding was an important issue that led to reliance upon the involvement of the legal profession in university based legal education. Funding remains an issue for innovation in legal education. As indicated by Brand, (1999, p 109) and as previously discussed in relation to other stakeholders, issues of funding can underlie reluctance to innovate.
Government and Funding
State funding of the public universities is based on the number of “equivalent full-time students” (EFTS) enrolled, creating competition for students. Apart from private funding, the remainder of a university‟s teaching budget comes from fees payable by students. The Government has the ability to, and has in the past, “capped” student fees at a particular level thereby inhibiting funding growth for universities from that quarter. Students are able to obtain Government loans at “less than commercial” rates of interest. Funding per student in New Zealand is contracting and the mechanisms have created competition among universities and amongst the law schools. The universities look to the law schools for low cost education in a high demand discipline. Law schools are again looking to the legal profession for funding and the profession also has input into curriculum through the Council of Legal Education. Each of the law schools also has input into the curricula of all of the law schools through the Council. The dominant stakeholder analysis suggests that PBL is unlikely to be supported at an institutional level in the current funding climate.
Innovation in teaching and learning is undertaken for the benefit of students, yet in some ways students are the stakeholders who have had the least direct impact on decisions about teaching and learning law. “Traditional” law students were accepting of the traditional model of legal education as it met the expectations that students had of studying law. Even if uninspired by the traditional model, students had few avenues of complaint. A lecture where knowledge is transmitted to the students provides no opportunity for student participation. Tutorials aimed at testing the knowledge received by students are not conducive to questioning law‟s meanings and values. Even in these more enlightened times, there is little space in the curriculum for reflection and challenge by students due to moves towards semesterisation and intensive teaching, and student appraisals serve too many purposes other than providing feedback on student learning. New Zealand students, however, have been paying university fees for a decade or more. They have adopted some of the characteristics of consumers, demanding “recognised quality” for low cost and often minimal personal effort. They are sensitive to the expectations of the employment market and yet wary of the unconventional. At least in the case of school-leavers, their knowledge of universities, their standing and their teaching methods is obtained second-hand. In Law in particular, their choice of university is greatly influenced by those who graduated a generation or more previously and who value tradition. Ironically this may give the more longstanding law schools greater scope for innovation with less likelihood of (potential) student resistance, than a newer one which is already prejudged as a risk. Indeed, the small number of law schools supports homogeneity rather than diversity in legal education approaches. With increasing numbers of students from “non-traditional” backgrounds and students identifying as Māori, there are signs that challenges to the traditional model of legal education will grow. As graduates, these people are increasingly important influences within other legal education stakeholder groups.
Problem Based Learning approaches require analysis from perspectives that are, in whole or in part, new to the learners; ideas already formed may be modified or rejected; participants are 17
motivated by the relevance of the task; learning includes the ability to formulate the problem itself in the light of multiple perspectives (including that with which one self-identifies) and disciplines. The personality, attitudes and values of each of the participants, as well as his or her professional aspirations, and discipline knowledge and skills, can be legitimated and acknowledged as having worth in contributing to problem formulation and solution. In this context, the law teacher is also a participator whose ideas, problem formulations and solutions, are open to challenge and change. Problem Based Learning approaches require reflexive participants; those who are sufficiently conceptually literate to read and critique key aspects of the social order and to understand their own and others‟ status and role in it (including understanding any conflict between the personal “self” and the professional “self”). Reflexivity contributes to humanist as well as to legal solutions to complex human problems and is essential to professional citizenship participation in the globalising market and society at a time of transition from a work society to a risk society. The dominant stakeholder analysis suggests that a PBL-centred curriculum is unlikely to be strongly “championed” by any of the main stakeholder groups in New Zealand, despite evidence that its characteristics have benefits for all of them. PBL has at least three factors working against its adoption in legal education: it is misunderstood; it is resource intensive; it is a break with tradition. Nevertheless, each of the major stakeholders has an interest in the production of more capable graduates by the law schools. Among them, the opinion setters are the members of the legal profession, although the purse strings are held by the universities. If both stakeholders can be shown that PBL is more effective in educating initiative-taking, capable law graduates from diverse backgrounds, the other stakeholders will be more able to “fall into line”. That will only happen when employable students come through a system in which they are exposed to at least some PBL approaches. And that depends on legal academics. If PBL approaches gain momentum in legal education, through adoption and evaluation and the publication of findings, and through reflection on and re-thinking of the essential characteristics of PBL, then institutional stakeholders may re-prioritise budgets and legal education “clients” may demand curriculum change.
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