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!

 

 

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.

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.

The “Good Lawyer” Quiz

Two of my former colleagues from the UMKC School of Law, Professors Nancy Levit and Douglas Linder, recently published a book entitled “The Good Lawyer“, Oxford University Press (2013), which  “[t]akes the reader on a fascinating and insightful tour across space and time to uncover the qualities that make for the best lawyers” and “[o]ffers suggestions for concrete quality reforms while also exploring broader ethical issues.”

This book is, in some ways, a successor to their previous “The Happy Lawyer: Making a Good Life in the Law”, Oxford University Press (2010).

Levit and Linder have now provided in the ABA Journal a fascinating quiz (with answers) that highlights some of the  critical and at times surprising findings in the “Good Lawyer”.  It can also be taken interactively online.

While the book and quiz are necessarily US-legal practice focused, they will still be highly relevant to the practice of law outside the US, especially in other common law countries.

Colin B. Picker

Do Charters ‘infantilise’ students?

Do charters infantilise students, as suggested in a recent article at the Times Higher Education? I think it probably depends on how it is done. Clarity in expectations is worthwhile and nothing is particularly wrong with contracts. I think at university, though, if you don’t know “I need to set aside time for private study”, you may just be in the wrong place. Better, I think, is a practical guide for students on how many hours they will need on average a week and/or how many hours of outside work is likely to put pressure on grades and/or life balance. I find students think they “need” to work 2-3 days a week, not necessarily for the money (obviously a different, and significant, issue), but because they think that it helps make them employable. We need to have conversations that help students make sensible choices so that university is not simply a pressurised study regime fit between days at work. I am not sure that charters are the best way to have such conversations.

Lyria Bennett Moses

Mindfulness in Legal Education

 

Justine Rogers

At a University whose motto is Never Stand Still, there is a growing group of educators trying to find room for, well, stillness. Facilitated by Dr Patricia Morgan, Senior Project Officer, Office of the Director, Student Life and Learning, UNSW, its aim: to integrate ‘contemplative education‘ within teaching and learning at UNSW. I heard about this group through their May symposium, Standing Still to Learn, where one of my colleagues and contributors to this blog, Professor Prue Vines, was speaking. You can watch her insightful talk here. There was also a couple of excellent talks by psychologists, Dr Craig Hassad and Dr Richard Chambers, from Monash University, where ‘mindfulness education’ is becoming a deliberate and pervasive part of the University’s teaching practice. From my understanding, contemplative and mindfulness education can involve different philosophies and methods, but both seek to cultivate awareness, a sense of being present and calm, and less reactive forms of teaching, learning and behaviour generally.

The Contemplative Education UNSW group meets monthly. To be part of the group, you can sign up here. The group sent around a summary of its last meeting, where Prue provided an Introduction of mindfulness into her first year law class: Continue reading

Aside

The New Legal Education

The teaching year has just started here, and for me personally, the teaching of a brand new course.

Beginning something offers the chance to see what we are doing as teachers of law close up, because for at least some period of time, it is not natural; it needs repeating and (re)getting used to.

Traditionally, legal education has been about training students to ‘think like a lawyer’; to develop supreme skills of analysis, meticulousness, reasoning and persuasion. Writers have identified the values that guide these skills, some of which, they argue, are harmful to the well-being of lawyers, the clients they serve, and their communities.

Indeed, for just and effective legal practice, what’s needed in legal education is a greater emphasis on broader cognitive, social, practical and ethical skills – indeed, an increased emphasis on competence and skills generally. Students also need opportunities to make these skills meaningful, in connection to others.

This isn’t ‘just’ the findings of a bunch of academics. The legal profession is beginning to support this thinking. The NSW Law Society is now restructuring its CPD program to reflect the contemporary reality that, as it states, these are not ‘soft’ skills, rather ‘fundamental’ ones that best serve the client. To do so, they’ve drawn on the analysis of Canadian lawyer and ‘legal futurist’, Jordan Furlong.

They ask, “So what exactly are the six new skills Furlong thinks need to be added to the [traditional] mix if we’re to create the complete modern lawyer?” They are:

1. Ability to Collaborate

2. Emotional Intelligence

3. Financial Literacy (adding a nice dimension to Colin’s recent post)

4. Project Management

5. Technology Affinity (um, not sure about this term and can hear the cries of gross commercialism from among more senior lawyers, – as with 3. – but it means being competent at using your computer, the internet and other mobile technology.)

6. Time Management

I would add ethics reflection and decision-making to the list. Also, I am fairly sure there are other aspects of justice and the law that, while more about substantive knowledge and attitudes, could be presented as related skills?

In any case, given its connections to mastery, social relatedness and the emotions of the individual, this set of skills has great potential to also support the well-being of lawyers and law students in ways that the traditional skills do not or do not do as fully. What do you think of the list? Whether we’re at the beginning of the year, or in the slightly wilder stage, does it seem like a useful and worthy guide for our teaching?

Justine Rogers