Ways to teach statutory interpretation in every course

There has been a great deal of discussion about how to increase the competency of students with statutory interpretation, and a Good Practice Guide on what is involved at a curriculum level will shortly be released by the Council of Australian Law Deans. This post suggests some ways we can increase the level of engagement by students with statutes in a way that doesn’t detract from other class content.

As legal academics we all have a strong instinctive understanding of the centrality of legislation to all areas of law, but students may not have yet appreciated this. Partly this is because their textbooks, and much of the discussion in class revolve around the examination of legal judgments, and how the judges create and resolve legal issues.  While the judgments are extracted at length, the statutory basis for the discussion is often presented in summary or truncated form (understandably, it takes up a lot of pages to insert legislation).  Subconsciously, students are likely to see the legislation as less important.

Students should know how to read statutes, and make interpretive decisions.  They are exposed to this, and assessed on it in their first year courses.  But they may not be required to practice these skills in later courses and so can the skill can atrophy.   Below are a number of suggestions for how those first year skills can be built on by later courses.

In class:

  • Require students to identify the appropriate section being discussed in as much detail as we ask for the ‘facts of the case’.
  • Ask students what a provision means at the beginning of discussions – making them explain the meaning of all the words – not just the ones discussed in a case.
  • Require the students to acknowledge the meaning given to terms in definitions and dictionary sections
  • Ask them how the context of the surrounding sections/Act as a whole influences the meaning, and how that may have influenced a court interpreting it
  • Require students to identify the purpose of each Act/provision as a scene setting exercise before examining cases.
  • Encourage students to identify the court sanctioned approaches to interpretation they are using when they attempt to define the meaning of a section, and why they are choosing one approach or factor over another.

At the pointier end of the semester, knowledge of statutory interpretation could also be added to the way assessment is marked:

  • Make sure that compulsory sections of exams always include the need to define the meaning of legislative provisions as part of an answer
  • Remove marks from assessment answers that fail to identify the relevant provision before moving to the discussion of the legal issue raised
  • When an assessment involves the students having to interpret legislation for which there is no clear judicial interpretion/statement, award marks for articulation of the approach to statutory interpretation used in resolving the issue and the balancing of factors.

Alex Steel

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Student class prep – two classic film clips

On Monday classes start again (if you are reading this outside Australia – yes, we go into our second semester now – after the short winter break). But will students be prepared?  And if not – what do we do about it?  What should we do about it? As we prepare for those first classes, perhaps it might be entertaining to watch how that first day played out for two different students that were not prepared for class in two different classic law school films – one from 1973 and one from 2001.  The first is a classic scene from The Paper Chase ((I believe Hart was hiding behind a failure to prep for class).  The other, so very similar but many decades later, from Legally Blond (I too at law school had not known we were to read for the first class – I erroneously also assumed it would just be fluff). Clearly these films represent a different legal educational culture, one perhaps a good deal harsher, and one found within a postgrad professional degree, but still, perhaps . . . By Colin Picker PS.  Re the final line in the legally blond case (“no diversity jurisdiction”), one of my first cases when a judicial clerk at the US Court of Appeals was resolved by the determination that diversity jurisdiction did not exist – which no one in five years of litigation had noted (I too missed it)!  They also must have been thrown out of class.

Killing the lecture …

I was recently asked by the university to take part in a ‘fun’ debate amongst Associate Deans on the topic “The lecture is dead”.  Having said yes, I then discovered I had to debate the negative.  UNSW Law teaches interactive seminar style classes, not lectures.  So, arguing the opposite of what I believed, as a lawyer I tried to do the best for my client.  My argument was essentially that it was a useful adjunct to discursive learning – sort of where the flipped classroom models are heading.

The exercise though did raise for me some genuine questions about when lecture-style transmission of summarised, structured knowledge might be appropriate in an ideal law curriculum.  My thinking is running along these lines:

  • If lectures are the predominant form of teaching, students don’t read materials beforehand – why struggle through when you’ll get the answers in the lecture – the way everyone’s an expert after a 30 min TED talk. It kills the constructivist idea of building your own knowledge, and atrophies the skills of legal analysis and interpretation needed when reading cases and articles on your own in practice.
  • On the other hand, if a student is genuinely interested in a subject, and will critically listen and then go off to independently follow up ideas and confusions they have – then lectures might be a wonderfully efficient approach to introduce the landscape of an academic field. The student gets an overview of a subject without wasting time struggling through materials that aren’t in the end relevant to the student’s self-directed learning journey.  This sounds like a fantasy for undergraduates, but it is pretty close to what we all do when we attend conferences.  We pick the talks that interest us, and then follow up what’s relevant.

So lectures let you opt out and choose your own path.  Active learning approaches – seminars, workshops, group assignments, do the opposite.  They require engagement with all the material.

So that suggests to me that active learning, small group approaches are necessary for degrees that qualify for practice – LLB and JD; but lectures with little required reading or follow-up are ideal for post-graduate self-directed learning where the classes are just a scaffold – the sort of degree that the LLM used to be (that is before the AQF thought it was either something on the conveyor belt to a PhD or another trade qualification).

Of course universities have long been teaching it the other way around.

Alex Steel

The End of Content? For All?

When I was at law school we were often explicitly told that the professor would not teach us the “black letter” law, for we were told that we were intelligent enough to find it and understand it ourselves.  Rather, she would instead attempt to stretch our understandings and skills across the field – perhaps using content as the backdrop.

This did not mean we were not tested on the content come exam time.  Similarly, we all knew that the Bar Exam waiting beyond the gates of the law school would also not let us just spin deep thoughts for answers.  But, our professors seemed to be correct in that last minute reading of the substantive content usually sufficed quite well in the exams – and even in the Bar Exam (admittedly that last minute was across many months – filling the massive gaps in our substantive knowledge – e.g., I never studied commercial law or criminal procedure prior to the bar prep course).

But what about post law school?  We did not really know what to expect from practice, but most of us found that once in practice, the work we most enjoyed and sought out was that for which there were no clear substantive law or answers.  Finding the law was consigned to summer clerks/associates and to the paralegals. Once again, substantive content seemed not to be an important factor.  Certainly, where it was the clients would not pay five hundred dollars an hour.

Of course, many readers will have early into this post criticized it as a reflection of an elite and privileged educational and practice background, not applicable to most law students or practitioners.  That critique may have been true at one time.  Though I would argue it was not entirely true even in the past.

BUT, I wonder if today the critique still has any validity.  Content is today easily and instantly available from ever more sophisticated search algorithms (e.g. Google), devices (I-Phones) or from off-shore legal service providers (e.g. in India).  True, knowing to ask a question, what that question should be and then how to structure the question may need some substantive context, but even then it is less critical than it used to be and may itself be derived from general inquiries. Furthermore, with law increasingly dynamic, today’s substantive content is tomorrow’s overruled law (by statute, regulations or judicial decision).

One may argue that the above is more applicable to the more/most sophisticated and complex aspects of our field than to perhaps the ordinary run-of-the-mill parts of practice (I do not use the word mundane, for the work can be both interesting and critical to society).  Thus, when a family comes in to create a will, the solicitor should know the basics of will drafting (and tax).  But, after doing one or two of those wills (or before, but in preparation for that sort of business) the intelligent solicitor will know the necessary content. Similarly, the barrister arguing in court must know the rules of evidence, but for an intelligent barrister that should not take long.  In other words, intelligent practitioners will quickly and easily pick up the substantive law needed.  So, once again, content is not a major part of the value added by the intelligent practitioner.

If the above is correct, then should there be a major rethink of the role of content in legal education?  Many have already argued for less content, with greater focus on skills training and deeper analysis of the background of the content (socio-legal etc).  But, should those moves go even further? Should content be relegated to a more consistent secondary or tertiary role in legal education – useful mainly for examples or testing the skills or analysis of the students? And especially for elite law schools, where the abilities of the students should be both taken for granted and respected?

Is content dead or dying?  And not just for the elite or sophisticated practice?  But for all?

By Colin Picker

Teaching focussed staff in research intensive universities?

Many universities, including those which see themselves as research intensive, have been struggling with the place of ‘research only’ and ‘teaching only’ staff in recent years. Some are keen to establish ‘teaching only’ or ‘teaching focussed’ positions, while others are concerned that this will lead to a second class of citizens, the teaching hacks who carry the greatest burden in educating students, but have no prospects for real career progression and get none of the spoils of researchers. Some say that casual or sessional staff are already employed as ‘teaching only’ and hence we don’t need continuing ‘teaching focussed’ academic staff.

I note that while UNSW’s new Vice Chancellor seems keen on the idea of ‘teaching focussed’ appointments, the proposed new Enterprise Agreement does not introduce true teaching focussed positions, but continues the arrangement of prior Agreements:

“All teaching and research academic staff will be provided with the opportunity to undertake the full range of academic duties commensurate with the classification level to which they have been appointed. It is recognised that at a given point in an academic career, an employee may agree with their supervisor to perform a predominantly teaching or research role for a defined period due to the performance strengths or preferences of the employee.”

Should we have teaching focussed appointments? Should we have research focussed appointments? Should everyone do everything? Should roles be amenable to change over time? I’d love to hear your views.

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