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!

 

 

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

 

Can teaching be measured? #2

Carolyn Penfold

Following on from Justine Rogers’ 30th May post: ‘Can Teaching Be Measured’ I’m adding links to some articles on the topic. I think these questions are becoming increasingly important as universities seek ‘metrics’ by which to measure their work forces. The articles linked to below suggest that bias is a concern in teaching evaluations, which for me raises the question of whether those using the metrics will need to ‘correct’ for likely (or even just potential) bias. Check these out and let me know what you think:

https://www.insidehighered.com/news/2016/01/11/new-analysis-offers-more-evidence-against-student-evaluations-teaching

http://blogs.lse.ac.uk/impactofsocialsciences/2016/02/04/student-evaluations-of-teaching-gender-bias/

https://tcf.org/content/commentary/student-evaluations-skewed-women-minority-professors/

http://www.utstat.toronto.edu/reid/sta2201s/gender-teaching.pdf

 

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

A not so subtle metaphor

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Imagine if a faculty of science in Australia focused its undergraduate/foundational teaching on the science of the local flora and fauna.  Students would learn about kangaroos and eucalyptus tress, about achidnas and banksias, about the funnel-web spider and the Murray cod.  Of course, they would also learn about palm trees and dingos, about the cane toad and about invasive weeds.  While there would occasionally be upper level electives on comparative anatomy or botany or on species not found locally, those courses would be few and far between, perhaps largely left for specialised postgraduate or later studies.

Further, imagine if the science faculties around the world followed the same model and also focused their undergraduate/foundational degree programs on their own local flora and fauna. Such a situation of university science education might arise around the world if the primary jobs for science graduates were in managing and developing the local flora and fauna, with only occasional work involving foreign or trans-regional species (despite an increasingly interconnected world of flora and fauna).  It might be perpetuated by the senior people in the field, who set the employment regulations, and who believe such an intense grounding in local science is necessary for the successful work of the scientist and the country.

Such an approach to science education around the world would mean that it would be difficult for science graduates to move to other countries for work in their field – as they may lack the local knowledge demanded of them by employers and by the regulators of their field.  Further (local) studies would be required to then secure employment in that foreign country. If the flora and fauna were too radically different it might even be the case that the newly arrived science graduate would have to start over again, enrolling in the local foundational science degree.

In such a situation we should expect there to be little science student international mobility, especially into the undergraduate/foundational level. After all, why go to the trouble and expense to study the flora and fauna of another country – especially for three to four years when that knowledge will be unlikely to help secure a job back home.  Though, if the home has similar flora and fauna it may be that the undergraduate/foundational degree would be acceptable, providing enough substantive knowledge to permit successful work back home. Thus, science studies in California may be suitable for Mexico, or studies in Vietnam would be applicable in Cambodia.  But a degree in such a localised science course in Australia would not be of much use in Norway.

Perhaps another approach to science teaching might be to push for an undergraduate/foundational degree in world/comparative flora and fauna, focusing on holistic concepts and transferable skills, perhaps with a few upper level electives or specialized post graduate courses in the local flora and fauna that would then provide the detailed knowledge to work locally (though the basic courses should be sufficient to provide the ability to assimilate and understand the science of the local flora and fauna).  Such an approach might reflect an understanding that science is best taught by starting at an holistic and conceptual level, and then moving to the specific if necessary.  Such an approach accepts and understands that science  is more similar than different across the world.  Imagine if that is how science faculties actually taught.

By Colin Picker

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