Critical thinking in legal education: What? Why? How? By Lucas Lixinski

by Lucas Lixinski

An article in today’s The Conversation asks whether universities really do a good job (or any job at all) of teaching critical thinking. While acknowledging that defining critical thinking is incredibly difficult, and that most definitions out there are vague at best, the article then moves to discussing whether universities actually teach critical thinking in the way they promise they do. In what seems like a job market that increasingly pays a premium for applicants who can demonstrate having learned critical thinking skills, there is a clear financial incentive (beyond the obvious intellectual one) to be more self-aware of what critical thinking is in our discipline, and how we actually go about teaching it.

 

What is critical thinking in law?

I will not by any means attempt to give an all-encompassing definition of critical thinking more broadly, nor critical thinking in the law. Instead, let me just say where I come from, and try and make sense of the landscape from there. The intention here is to start conversations and provoke reactions, rather than lay down the law (pardon the pun) on the matter.

 

In my opinion, critical thinking has to do with challenging assumed wisdom, and showing students how to do that themselves. In the law, as far as I can see, there are two ways in which I can do that. The first one is to focus on the contingencies of the law, whether they are economic, historical, or political. Things like the old adage that “the law is made largely by, and for the benefit of, white, male[, heterosexual, able-bodied] property owners” tends to be a great starting point to unravel those contingencies. As is the broader historical context of critical moments in the formation of the legal system (like the influence of Protestant ethics in the shaping of the Common Law and its approaches to labor and property, which is different from the way the mostly Catholic Civil Law jurisdictions behaved in Europe at around the same time).

 

Secondly, another way of critically thinking about the law, in my view, is to look into the background. More specifically, when we think about, say, a contract for the purchase of milk, the foreground body of rules operating is contract law. However, in the background there are a number of other bodies of law that influence what is possible for a contract (even though on paper contract law is still the quintessential guardian of private liberty), such as food security rules, (international) trade law if milk is considered to be a strategic product the production of which is incentivized, the corresponding tax arrangements, etc. Admittedly, it makes teaching a simple case daunting, but I always tell my students that I don’t need to have all the answers to those all the time, nor do they. But they need to be mindful of those knock-on effects of the simplest legal rule (sort of a “butterfly effect”, but in the law, and hopefully not creating any hurricanes anywhere).

 

How can we “teach” it?

If you haven’t caught on to it yet, let me out myself here. The way I think about critical thinking, and consequently teach it, is influenced by the way I think and write about the law more generally. Which is to say, I have a hard time dissociating critical thinking as an abstract and transferrable skill from critical legal studies, which is a specific way of theorizing and understanding the law. In other words, the way I conceptualize and “do” critical thinking is deeply influenced by my own bias as a critical scholar (well, much of the time anyway), which is framed by my politics, rather than my raw analytical ability. Assuming this neutrality is desirable (and the article on The Conversation referred to above suggests as much), how do I counter my own biases?

 

Maybe the assumption is that teaching a lefty orthodoxy induces critical thinking, in that it challenges status quo and conventional wisdom students come to the table with. So, maybe the way to teach critical thinking is to constantly challenge student’s assumptions. Except that those assumptions vary radically within a cohort, and change a lot throughout the degree. Which is to say, it may be safe to assume that a first-year undergraduate class at an elite university is made up of students whom you can assume espouse certain center- to right-leaning assumptions about the world, inherited from their parents and their upbringing. But, after spending a year being challenged on those assumptions, it may be that an upper level class needs to be re-presented with the Liberal version of the world. That is, of course, if critical thinking is to be conveyed through “thick descriptions” of reality as a means to understand and apply the law.

 

Which is to say, maybe the way to teach critical thinking is to make the teaching less about what I think, and more about playing devil’s advocate all the time to what students think. And that is a fair enough proposition in a student-centric model of education, but, if teaching is also meant to be (at least to some extent) research-driven (not to mention students’ insistence on “answers”), isn’t it my job to convey what I think after all? I constantly try to strike a balance between what I think and other opinions out there, and present them all, but I’m not sure I’m always successful.

 

This discussion brings to mind an old and still current debate about the purpose of legal education. Is legal education about teaching substantive knowledge of the law, or just skills (“thinking like a lawyer”)? I tend to think the latter, but, in considering the legal profession is subject to an increasingly strict regulatory environment, content is also incredibly important. It is also easier to measure and assess. Problem questions have a way of assessing critical thinking, but often enough (as people marking exams everywhere may attest to), answers to problem questions can too easily devolve into knowledge-spewing for significant segments of the student population.

 

So, what to do?

I honestly don’t know, and invite other people’s views on the matter. As far as I can see, I will keep on trying to challenge students at every turn (and have they challenge me), but being mindful that my opinion counts, while certainly not the only one that does.

 

In one of my classes (an Introduction to the Legal System-type class, called “Introducing Law and Justice”), I have the privilege of talking to students in one of their early contacts with the legal discipline. And in doing that I present students with a list of questions that they should be asking of materials they read (cases, statutes, scholarly texts) as a means to stimulate critical thinking:

–        Why is the law this way?

–        Who stands to gain?

–        Who loses?

–        What does the law as is miss? What are its blind spots?

–        What do other people do faced with similar legal problems, and why? Can we learn lessons there?

–        When was this case decided? What was the broader context around this case?

–        What was the court / law-maker trying to say between the lines?

–        Who is the court / law-maker (white, male, property owner)?

–        What is this legal statement / assertion / rule a reaction to?

–        How does the private affect the public (and vice-versa)?

 

That strikes me as a fairly useful checklist to spark critical thinking, on the models above. But are there other ways of doing that in law teaching? Let me hear your thoughts!

 

 

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Smart Casual teaching development modules now available

An innovative resource for specifically developed for sessional law teachers (but able to support permanent staff as well!) is now online.

The Modules

The first five modules of the Smart Casual suite of online modules to support sessional colleagues with law specific teaching strategies are now available at https://smartlawteacher.org/modules.  They are:

  • Reading Law
  • Critical Thinking
  • Legal Problem Solving
  • Student Engagement
  • Feedback

They are supported by an introductory module that highlights four themes that run through the modules and are key to legal education: diversity, internationalisation, digital literacy and gender.

A further four modules will be available in the coming months:

  • Wellness
  • Communication and Collaboration
  • Legal Ethics and Professional Responsibility
  • Indigenous Peoples and the Law

Format

The modules are written in Articulate Storyline with links to video clips and are designed to allow viewers to either work through the slides sequentially or skip to areas of interest.    Modules take around an hour to work through, but can be skimmed for relevant content much more quickly.

The modules are designed to have a peer-to-peer approach, recognising the experience that sessional colleagues bring to their teaching.  They feature a range of short videos from sessional staff themselves discussing the issues in the modules.  The use of reflective questions throughout the modules means the modules can also be used a conversation starters for peer discussions.

Background

Smart Casual involves a collaboration of academics from five Australian law schools producing a suite of professional development modules for sessional teachers of law. Half of all teaching in Australian higher education is provided by sessional staff (and possibly more in law schools), so the quality of sessional teaching is critical to student learning, retention and progress. However, national research suggests that support and training for sessional teachers remains inadequate.

In law, this problem is compounded by the need for staff to teach discipline-specific skills and content to students destined for a socially-bounded profession. Yet sessional law teachers are often time-poor full-time practitioners weakly connected to the tertiary sector. The distinct nature of these sessional staff and the discipline-specific learning outcomes required in law demand discipline-specific sessional staff training.

The project was funded by grants from the Australian Government’s Office of Learning and Teaching.  The  project team is:

  • Mary Heath, Associate Professor, Flinders University (Project Leader);
  • Kate Galloway, Assistant Professor, Faculty of Law, Bond University.
  • Anne Hewitt, Associate Professor, Adelaide Law School, University of Adelaide;
  • Mark Israel, Adjunct Professor of Law and Criminology, Flinders University; Visiting Academic, School of Social Sciences, University of Western Australia;
  • Natalie Skead, Associate Professor, University of Western Australia;
  • Alex Steel, Professor, University of New South Wales

 

Innovation for the next generation of legal education: student-led video production

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How can legal education be enhanced through student-led video production? How effective is it for class learning? And what are benefits and challenges that this form of blended learning poses for environmental law and legal education more generally?

These questions were explored by Cameron Holley and Amelia Thorpe in a recent UNSW Law Learning & Teaching seminar where they presented the findings from their Learning and Teaching Innovation grant entitled: ‘Updating legal education with blended classrooms: lessons from student-led resource development’.

The premise:

  • Videos are one of most popular form of online media teaching (particularly in MOOCs) 
  • Facilitate thinking and problem solving

–creative challenge of using moving images and sound to communicate a topic

–filmmaking skills, but also research, collaborative working, problem solving, technology, and organisational skills

  • Inspire, engage and foster deep learning

–Videos as part of student-centred learning activities benefit motivation, opportunities for deeper learning, learner autonomy, communication skills,

  • Authentic learning opportunities

–method for students to construct concepts and learning about real life issues relevant to them

  • Assist with mastery learning

–providing learning resources for future cohorts

What did they do?

–students asked to identify a recent development in environmental law that is not already covered in the prescribed text book

–required to produce a short video, no longer than 10 minutes, that portrays the subject matter of a recent environmental law development and reflects thoughtfully on in its implications for achieving ecologically sustainable development

–low risk – 5% for trial (would be more in future)

–outcomes and process assessed

–small teams of 4-6 students

  • to assist: three iPads made available and guide sheets on a suggested timeline, working in small groups, and media production.
  • videos shown to the class as a set late in semester.

–roughly 40% of class already had experience with technology

The Results?

Cameron and Amelia showed examples of videos that demonstrated highly engaged, deep learning among the student groups, with a strikingly high level of production value!

The presentation drew on empirical data collected from student interviews and surveys, as well as teacher and peer reflections. It rounded off by critically examining the strengths and weaknesses of student produced videos as a tool for blended learning, before a lot of us in attendance decided we all want to try it out in our courses!

For those who wish to experiment with similar innovations, view the student data, or track the sources for the above,  their slides are available here: Holley_Thorpe_UNSWLaw_video.

Can Teaching be Measured?

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By Justine Rogers

Last week UNSW had its second ‘Great Debate’, introduced last year as a fun, accessible way for the UNSW community to explore a serious and stirring topic. (For a post on last year’s, click here)

Each team: professor-manager, non-prof academic, and student.

The topic: Of Course Teaching Can be Measured (it’s a 5.3!).

I was on the affirmative (which I knew going in would be tough).

Given it was a private event for staff and students, I’ve written this assuming some version of the Chatham House Rule applies.

The affirmative’s arguments were:

  1. Teaching can be measured, albeit imperfectly, and certainly better and more reliably than it is now.
  2. Teaching needs to be measured to enhance the quality, rewards and status of teaching.

The negative’s arguments were:

  1. Teaching cannot be measured, only learning experiences and learning outcomes can. 
  2. Teaching measures are flawed and unreliable.

The negative committed to the empirical questions, whereas I tried (unsuccessfully in the 4 or so mins we had) to engage both sides in the wider empirical and normative argument suggested in affirmative point 2: whether there is some positive correlation between measurement, and motivation, quality and status, and therefore whether a more robust measurement of teaching is worthwhile.

I wish we’d had the format and time to examine this: whether this is true, or whether, using research measures as example, such measures have too many biases, perverse incentives, and inefficient and/or demoralising effects to be of real value (even if it entails superficial value). 

I will share my main arguments here, some of which I am fairly convinced, many posed as part of my role on the affirmative side, and some raised in the spirit of fun and provocation. Above all, I think the topic raised several questions left that need to be contemplated, many of which I’ve posted below – so please share your thoughts!

Continue reading “Can Teaching be Measured?”

What lawyers actually do in practice (at least in the US)

SSRN has recently posted a great ethnographic study of young US lawyers in terms of what they actually do in the office.

Sinsheimer, Ann and Herring, David J., Lawyers at Work: A Study of the Reading, Writing, and Communication Practices of Legal Professionals (March 14, 2016). Legal Writing Journal, Vol. 21, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2016-11.

It includes great evidence of lawyers dealing with the following (SSRN pinpoints):

  • Using close reading and skimming strategies (pp13ff)
  • Strategic reading (p23, 30ff)
  • Reading from computer screens (p26) but using printed materials by preference (p24)
  • Huge use of email for written communication (p45ff)
  • Use of precedents (p48)
  • Reviewing and revising constantly (p49ff), being meticulous (p50)
  • Research/writing nexus (p51ff)
  • Interpersonal skills and stress in the office (p58ff)
  • Time-management (p60ff)
  • Cross cultural communication (p64)
  • Developing professional identities (p66ff)
  • Suggestions for curriculum change (p24, 71)

It’s a wonderful collection of vignettes and data that help to flesh out what we are often  trying to impress on students are the real skills they need in preparing for legal practice environments.

 

 

Paolo Freire and Testing Assumptions

Recently I saw an article in a newspaper raging about how Paolo Freire had taught South Americans to take ‘left wing’ views. The fact that the South Americans Paolo Freire was working with were amongst the most downtrodden and poor of those in South America seems to have passed the author by. What Paolo Freire taught those people was to ask questions and not to simply accept answers without testing them. This is a fundamental aspect of education. It may or may not lead to revolution; but it will lead to change of some kind. The outrage at the ‘political’ nature of this sort of education is based on the idea that things should stay the same. The people who want things to stay the same are usually those who are benefiting from it.

In first year teaching we often have very bright students who have been well trained and who can answer questions within a given set of parameters very quickly. But some of them have never really used the excellent brain they were given. We can take the opportunity to let them see what it is like to really use your brain. The secret is simple – it is to ask questions, and to keep on asking questions, and when the answers come, it is to test those answers against material which you know to be true – because you asked questions about it and tested the answers.

In my first year law classes I try to have one two hour class where we only have questions. As usual they are required to do their reading. I choose something from the reading, eg a case, and tell them that they need to think of a question which would illuminate this reading. WE go round the class, each asking a question. There are no answers. I do not answer and I do not permit them to answer. They have to keep asking questions. I write the questions on the whiteboard. Normally they think once everyone has asked a question that there are no more, but I don’t let them stop. As we keep going and they struggle to come up with questions their questions change quality and become larger and often more about evaluation; they find themselves asking profound questions about the item, going into philosophical questions, historical questions and beyond.

After this we spend some time looking at all the questions on the whiteboard and I ask them questions about the questions –

  • Which questions have a yes/no answer?
  • Which questions can be answered with certainty?
  • Which questions are historical?
  • Which questions evaluate something?
  • How else could you think about these questions?
  • What assumptions underlie these questions?

I find that this class has a significant effect on my students. They seem to suddenly understand the process of analysis that is required in university work when many of them did not before. And they have learned new types of questions and I hear these questioned repeated later on in the semester as they take them on as their own.

This is the kind of education that Paolo Freire wanted to begin with. Neil Postman and Charles Weingartner wrote a book about it called Teaching as a Subversive Activity. I wish I were brave enough to run more of my classes like this instead of assuming my students may need more content explained to them.

PRUE VINES

Empathic imagination as an intellectual tool

I think we think we miss a vital element of education. In Australia we talk about values to children in primary school and talk about respect and so on, then in highschool it is done less and then in legal education we talk about ethics, but we do not focus on the critical intellectual skill which is required before ethics can work.
I am talking about the use of our empathic imagination. This is what is also known as ‘walking in their shoes’. I am not talking about sympathy which is feeling sorry for a person and treating them as a victim. I am talking about understanding what life is like for someone else. There is neurological evidence that this begins in a child with the ‘mirror neurons’ which develop as the child realises that there are other people in the world who also feel. People who cannot understand this are called ‘sociopaths’. We have far too many of them… but I am talking about why in a legal education you might encourage developing empathic imagination as an intellectual tool.
Two classic scenarios can illustrate why this is useful in a legal education. First, the assessment of damages for personal injury. This requires a careful, reasoned approach to the question ‘what is life like for this person who is not me?’ For example, if this person has lost a leg, how will they respond to life? Careful thought about their position will reveal that they will not be able to pop down to the shops the way they used to, that their job which required working will no longer be possible, and that everything else which required walking is no longer possible. If hiking was their major hobby then not only will they not be able to do it, there will be a major hole in their life – friendships developed through hiking may collapse, a whole social life may be destroyed. I need not go on. This is ordinary stuff for lawyers, but the failure to do it well can be the difference between damages which will really help the situation and damages which won’t.
Another classic scenario is to have people in one class see what life is like for another , for men to see what life is like for women and vice versa, for non-Aboriginal people to see what life is like for Aboriginal people. Again, this is not about sympathy, which can merely emphasise victimhood. This is about clear-eyed consideration of all the factors which flow logically from the situation. This must be practised. It must be thought about hard, and it requires us to check our assumptions about how things work.
A classic example of this going wrong is where the High Court assessed damages in Sharman v Evans (1977) 138 CLR 563. The plaintiff had become a high level quadriplegic. Apart from losing all her employment prospects, she could not sit up, feed herself and had lost the power of speech. She had complete knowledge of her situation. Gibbs and Stephens JJ (at [27]) thought her general damages should be reduced from the high level awarded by the trial judge because:
‘The present plaintiff still possesses powers of enjoyment through the use of her senses; her sight, her hearing and her taste are unaffected and in place of sport, entertainment, cosmetics and clothes she may find pleasure in recorded music, in a movie projector and the hire of films, in days spent on drives in a chauffeured car, perhaps in special foods. She can thus experience pleasure and ward off melancholia by such distractions as may be to her taste and within her means. Many of her former modes of enjoyment are closed to her but some new ones remain to be explored and from which she will be capable of deriving pleasure. ‘
Each year when I teach damages and read this paragraph to my students I hear them gasp in disbelief. At that stage I know they are exercising empathic imagination, but were the judges? I believe they were blinded by their fear of over-compensation.
Teaching this needs to be done as a skill which needs to be practiced. One has to imagine what life is like in a certain set of circumstances and then taking the logical intellectual steps which follow. This should be the bedrock of social justice – not woolly emotionalism, but a clear-eyed view of reality.

Love lectures?

A recent New York Times opinion piece goes slightly against the learning and teaching orthodoxy but arguing in FAVOUR of lectures – http://mobile.nytimes.com/2015/10/18/opinion/sunday/lecture-me-really.html. It looks at some of the advantages of a lecture format, particularly in the humanities, including teaching students how to listen critically, take notes that summarise ideas and arguments, and learn to understand before commenting/opining.

In law, there is some information that is best communicated through lecture elements, but my classes run in a more “Socratic” or questioning style (having been partially trained in the US), with problem-solving, group discussions and class debate. So I don’t do a lot of pure “lecture” although there is some content that I do present in this way.

But it got me thinking. I would probably be frustrated if I wanted to learn something in an area with which I wasn’t familiar (say at a conference or seminar) and the speaker adopted an “active learning” approach. Sometimes all you want to do is hear someone knowledgeable about something deliver an engaging, interesting and informative “lecture”. And when listening to such, I am rarely “passive” but usually constantly questioning them (initially in my head and eventually by raising my hand in question time). Of course, one difference is that I already know how to “do” legal reasoning, so that is not what I am learning. But the same could be said of later year students too.

So, my question is this: When are lectures the best way to teach?

 

Lyria Bennett Moses

Postcard from Mexico

Anna Cody

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Experiencing another law school, and particularly another legal clinic using clinical education methodology is always eye opening.   For the last 9 months I have been collaborating with the National Autonomous University of Mexico, Human Rights program legal clinic. It has given me some fascinating insights into both the Mexican legal and political system, as well as what it’s like to be a law student in the biggest public university in Latin America.

The clinic here focuses on access to information in migration matters and disability rights cases. They have made over 100 access to information claims with some success but which demonstrate how un-transparent the immigration detention system is.  And as most clients are from Central America and are on their way to the USA, the clients don’t want to stay in Mexico to pursue their legal rights when they are mistreated, tortured or detained illegally. The disability rights cases challenge the automatic use of ‘guardianship’ for many people with disability. They have also supported various people seeking de-institutionalisation. Students are an integral part of these cases, researching them, interviewing and advising clients and representing clients in court. Cases in Mexico are mostly run on the papers without oral evidence, submissions or argument.

Three insights

1. Students, the world over, thrive when given responsibility for their legal work, and are supported in their learning by thorough and effective supervision. The students in Mexico are given a lot of responsibility and in order to succeed in this, they need intensive support from their supervisor who meets with them, drafts documents and discusses some of the pitfalls of the civil system. Writing in plain language is even more of a challenge in Mexico than in Australia where students receive little training in how to communicate effectively.

2.  Despite the various criticisms of Australian ethical frameworks and regulatory system, having some ethical rulings and requirements are definitely preferable to not having any at all. In Mexico there is no ethical code to guide and regulate lawyers. It is a real discussion between supervisor and students about how to influence a judge and whether or not paying bribes is appropriate. The fact that this can be discussed openly is a tribute to both teacher and students. And yet for an Australian lawyer this explicit form of “influencing” by bribe is shocking. It strikes me how hard it is to continue to act in good faith as a lawyer and to believe in a legal system which relies on bribery. This has meant some fascinating discussions with students about what our role is within a legal system as lawyers.

3. When we are working with clients with disability and teaching students about their and our own ableism, it’s essential to design a clinical course with people with disability at the centre. This means integrating speakers, readings, class content which has people with disability giving their perspectives. One of the most powerful classes which the Mexican clinic teaches its clinical students provides perspectives of people with disability, who are not clients. The clinic invites a member of the Colectivo Chuhcan, a collective formed by and for people with psycho-social disability to discuss their experiences of the health and legal system in order to give students an insight into these issues.

These are just 3 of the insights of my time in Mexico, on sabbatical from UNSW.

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