Something has been bothering me about how law is taught at undergraduate level in the UK (and in many other countries). Most of it, especially at non-honours level, is focused on content.
This may not, at first blush, seem cause for concern. What is wrong with content? Nothing. It is worth considering the volume of content.
It is essential, of course, that the basic principles of a legal subject area are imparted, so that students understand how it works, how it fits together. But do students need to know more than this? We tend to go much further than basic principles; we teach detail. Not all of it, of course, but arguably much more than we need to.
My question about content arises because of a shortage of something else: context. We assume the solution is to manufacture scenarios for students. So we dream up fictitious characters who get into (sometimes rather wild) legal difficulties, describe them in a paragraph or two, and ask students to resolve them.
There is nothing wrong with this approach, as such. There is perhaps a better approach to the question of context: to learn the principles and the application of the law through transactions.
By transactions, I don’t just mean contracts, but the mechanisms within which the law is applied. And I don’t just mean part of a transaction, but from beginning to end, so that the student understands where and how the legal principles apply throughout. Contract is however the easiest subject by which to demonstrate the transactional model.
Students would be given a contract, and the law taught through the life of that contract. To a non-lawyer this might seem obvious. To a legal academic, alarm bells may already be ringing. But these are the alarm bells of habit, not of logic.
Under a transactional learning model, students would start with the correspondence preceding the contract, and whether (and in which circumstances) a valid contract is formed. They would move to consider what its terms are, then their meaning (interpretation) and onwards to circumstances of breach and remedies for breach. The whole course, and the principles of contract law, would be taught through this transaction (or more than one).
The idea is that the principles would be taught as the contract unfolds, at each stage of the transaction. By the end of the course the students have seen a whole contract, from before its existence to after its termination. They would visualise the principles as fitting into this transaction.
This model of learning can be applied to most subjects. For example, family law could be taught through a divorce “transaction”, perhaps along with adoption or cohabitation; and criminal law through the study of a number of criminal charges.
There are several benefits to this approach:
- It is less abstract than traditional teaching. Students can see how the principles apply, not just what they are. This is likely to make the learning process more engaging, enjoyable and memorable.
- It allows the application of problem-solving skills in a more even and realistic way than is currently done. Rather than punctuating weeks of lectures on content with intermittent scenarios, the whole learning experience is a scenario.
- Problem-solving skills are far more likely to be of use in professional life than volumes of content, most of which is practically obscure and difficult to retain for any period of time.
- This form of learning is compatible with other alternative forms. These include problem-based learning (a form of student-centred collaborative learning: see, for example, the YouTube video PBL at Universiteit Maastricht), and flipped learning, where students are provided with material (usually pre-recorded lectures) before class, and class time is spent on deepening knowledge. The latter method is associated with the idea that lectures are not an effective way to learn: see John Bergmann’s discussion of this method on YouTube.
Some may worry that a shift towards transactional learning would mean students would know less law, diluting their ability to spot issues in practice. There are a number of problems with this argument.
First, a good proportion of the material currently taught arises rarely in practice.
Secondly, the content taught may well be out of date by the time the students practise law. Technique, on the other hand, does not age.
Thirdly, lawyers can look up content. I can’t think of a time in practice when I lamented discarding my (illegible) lecture notes because a point I needed was not covered in textbooks. It is enough that students are aware of the general principles, that there are times when something should be checked and how to do that.
Fourthly, most client advice does not give rise to fine legal points. Rather, where a problem arises, the solution is usually obvious, resolved (at most) with some thought and possibly brief confirmation with some legal sources. There are exceptions, of course, but it seems illogical to build much of the method of legal education around these. Better, surely, to design it to equip future lawyers to deal with what they will face 90% of the time, not the other 10% (and I am being generous here; a more realistic split might be 99% and 1%, even in contentious business).
Fifthly, is learning more legal content really the best way to train lawyers to spot issues? Arguably a transactional approach would better equip lawyers to do this. It would improve interpretation and problem-solving skills, as well as attention to detail: all skills that would allow better detection and resolution of issues, when compared with a greater knowledge of legal detail.
Role of the Diploma
One argument against a transactional approach in the law degree is that this is what the Diploma in Professional Legal Practice is for. But it makes little sense to cram the practice of the law into a quarter, or a fifth, of the time spent at university. It seems more sensible to introduce it from day one. This allows the skills in (for example) analysis and problem-solving to be acquired over a longer period through repeated practice, and to bed in, so that by the time of the Diploma more advanced practical work can be undertaken.
With many UK law graduates pursuing a career outside the profession, it might be said that an increased concentration on legal transactions would be misplaced. In fact, the reverse is true. Such concentration would suit graduates who go into other areas, since it would involve teaching global professional skills. These include analysing documents, problem solving, attention to detail and written and oral presentation – essential skills in any professional discipline.
Further, the law applies everywhere. An understanding of legal principles will stand any professional in good stead. I cannot think of a university subject which applies so broadly across all professional areas. Perhaps that explains why so many LLB graduates secure employment in other disciplines.
It might be said that a transactional approach would “dumb down” legal education, such that lawyers would be less able to challenge the law and argue for reform. This too is questionable. If law graduates have seen how the law applies, this makes them more likely to spot problems with it.
Secondly, more conceptual problems can be explored in honours (and masters) study. The transactional approach can be adopted in ordinary level subjects.
Thirdly, there is a danger of intellectual snobbery: assuming that practical issues in the law are of lesser value than more conceptual issues. Both are important, but most law graduates will not work as academics or in law reform bodies. Higher level study exists for those who hope to.
The transactional approach would enhance certain practical legal skills, which are crucial but at present often neglected. For instance, statutory interpretation. Some lawyers simply do not know how to perform this task properly. A transactional approach can be used to require students to navigate their way around a statute, gaining an understanding of how it is composed and realising that a focus only on the relevant provision is misguided. This can be played out within practical scenarios right across ordinary level subjects.
Interpreting case law is another key area to which a rigorous approach can be taken under this method, for example where there is conflicting case law.
One major practical issue with a transactional approach is resources. Undergraduate UK law school classes are often large, and the approach might appear to involve more input than traditional lectures and tutorials. This need not be the case. Pre-recorded lectures, delivered ahead of classes as part of “flipped learning” (see above), can allow more student contact time in smaller groups. The use of recorded lectures has been imposed by COVID-19 and it is clearly a perfectly good, indeed possibly better way (as suggested earlier), to deliver core content.
The broader context: a community approach
So far, I have discussed the transactional approach within individual subject areas. It is possible to build on it by connecting subject areas together. Core ordinary level subjects could be taught on the basis of a “family” or “community” (perhaps a street or neighbourhood) who encounter legal issues such as family breakdown, consumer disputes, company formation, criminal charges, property disputes, debt, personal injury and employment law. This would make learning more interesting and memorable and help bind the disparate subjects of the LLB together, while allowing students to grasp the reality of legal problems: they happen in everyday life, not at the extremes.
This would require a major effort in coordination, and may be too ambitious for most institutions. A more realistic alternative (perhaps as a starting point) might be to group two or three subjects in this way.
Dispute resolution: a possible vehicle?
An alternative way to teach transactionally could be, in part, to deliver material through the eyes of disputes. Students could then consider not only the applicable law, but also how best to resolve the dispute.
This would allow the introduction of techniques around negotiation, mediation and adjudicative methods at an early stage in legal education, demonstrating how the law does not operate in a vacuum. It might even be possible to compress “black letter” law into (say) one academic year, followed by another year (or more) of delivery within a dispute resolution context on the subjects learned in year one: traditional learning followed by applied learning.
Although certain core subjects would have to be followed initially, the second half of the degree (for those taking honours) could consist of electives, some ordinary, some honours, with a requirement to take some of each type. This would have the benefit (to my mind) of avoiding the teaching of all basic legal subjects to all students, though if structured carefully, good coverage could be maintained.
Clinical legal studies
Clinical legal studies are very valuable, not least in allowing students to have contact with real clients. However pointing to such courses as the solution ignores the facts that they are (a) usually elective, therefore not all students will benefit from them; and (b) of limited scope, not filtered through the whole legal educational experience. They offer a complement to what could be a more integrated transactional approach, not a substitute.
I offer these suggestions in the hope of starting a broad conversation on whether, and if so how, we can improve on educating future professionals in law. The answer may be that the status quo is the best way. If so, that is fine. At least we will have come to that point not through apathy and habit, but having conducted a rigorous debate. I invite any comments, with a view to a structured examination of the issues: email@example.com
Now, get back to handling your transactions!
Professor Derek P Auchie, Chair in Dispute Process Law, University of Aberdeen; solicitor and tribunal chair
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