Bradney

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The Rise and Rise of Legal Education

A. Bradney

Copyright © 1997 A. Bradney.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The increase in the number of articles and books on legal education raises the question is legal education becoming a separate area of enquiry in the same sense that land law or criminal law have traditionally been recognised as separate subjects. If legal education is now a separate field what does it look like and to what degree will its new status help or hinder progress in legal education? This article surveys the recent literature on legal education and compares it with writing previous eras. On the basis of previous work done on higher education it looks at the progress that writing in legal education has made towards disciplinary status.

Introduction

There has been a rise in interest in, and writing about, legal education in the 1980s and, more especially, the 1990s. This increase in interest raises two questions. First, has the study of legal education now become a separate discipline or area of enquiry within legal studies alongside the traditional fields like land law and the more modern interests such as gender? Secondly, if it has become a discipline or area of enquiry to what degree will this change advance legal education or hold its development back?

The New Interest

Writing in 1982, Twining commented that "[v]irtually no serious research on legal education has been undertaken in this country" (Twining 1982, p 212). At that time that was correct. Now, it would not be true. Demonstrations of such research and scholarship are legion. In no particular order, and without suggestion of any particular priority over things not instanced, one might mention the three conferences in January and February 1997 at the Institute of Advanced Legal Studies hosted by respectively the Law Discipline Network ("General Transferable Skills in the Law Curriculum"), the Socio-Legal Studies Association ("The Shape of Things to Come" on the future of the university law school) and the Institute itself ("Legal Education and Legal Theory") , the completion and publication of Harris and Jones' mammoth survey of the work of British university law schools (Harris and Jones 1997), the new National Centre for Legal Education at Warwick University which is intended to "encourage and support the pursuit of innovative teaching and learning methodologies in law". (NCLE Newsletter 1997, p. 1) and the sessions on legal education which are a regular feature of each Annual Conference of the Socio-Legal Studies Association. The Socio-Legal Studies Association has a specialist group for those interested in legal education and has linked with the Society for Research into Higher Education to provide a forum which will bring together those interested in legal education in the socio-legal community and those with similar interests in the wider academic community. The Society for Public Teachers of Law has a specialist sub-committee on legal education. The Association of Law Teachers has run conferences on legal education, has sponsored research on legal education (Harris and Bellerby with Leighton and Hodgson 1993; Leighton, Mortimer and Whatley 1995) and has regular sessions on the subject at its annual conferences. In 1997 the title of the annual BILETA conference was "The Future of Legal Education and Practice".

The Changing Quality of Work on Legal Education

The growth in interest in legal education has not merely been quantitative. There has also been an important change in the quality of much of the work that is being produced.

Historically, the legal academy has always shown some interest in the nature of its own work. Unsurprisingly, those who have been reflective about law, its nature, its content and its effect have also been self-reflective about the manner and purpose of their work. Essays and articles on legal education litter the history of the British legal academy. For example, in the first three decades after the Second World War articles in the Journal of the Society of Public Teachers of Law regularly focused on issues in legal education. Equally during these years, the presidential address given by the President of the SPTL (and subsequently published in the Journal) regularly addressed questions of legal education. The range of issues discussed in these and other places many ways mirrored current debate about legal education. It ranged from analysis of the purpose of legal education to questions about the everyday practice of teaching. In the first volume of the Journal of the Society of Public Teachers of Law, covering the years 1947 to 1951, articles ranged from Brown's brief discussion of the problems raised by students coming from different backgrounds and being of different ages (Brown 1947) to Stallybrass' analysis, based on the work of Newman, of the place of legal education in the university (Stallybrass 1948). Yet, if there is much that links the nature of debate about legal education now and debate in the past there is still more that radically separates the two eras.

Changes in the tone and character of work in an individual academic area cannot, in any concrete, empirical sense, be proved. The difference between the majority of what was once written about legal education and the majority of what is now written about legal education can be only be illustrated. And, of course, what is true of the majority, now or then, is not true of everything written. A comparison of one particular form of production, the inaugural lecture, will, however, serve this illustrative function.

Both Hepple and Leighton have recently devoted their inaugural lectures to legal education (Hepple 1996; Leighton 1996). Both set out a view of legal education in the context of the first ACLEC report. Hepple concentrated on the law degree itself, Leighton on the law teacher. In an earlier era, in 1966, Grodecki entitled his inaugural lecture "Legal Education: Dilemmas and Opportunities" (Grodecki 1967). This painted a picture of legal education at a time when the author saw legal education as being at a cross-roads (Grodecki 1967, p 3). The similarity in the subject-matter in the three lectures is obvious; the distinction between lies in the footnotes. The written form of Hepple's lecture has 72 footnotes, Leighton's 27 and Grodecki's 14. (Hepple's lecture has not, at the time of writing, been formally published but photocopied copies have been widely circulated and referred to in academic literature. Both Leighton and Grodecki's lectures were published by their respective institutions.) The variance in footnotes is indicative not normative. A published lecture that contains fewer footnotes is not thereby less interesting or intellectually weaker. But it does suggest a lower level of engagement with the subject matter of the lecture. The issues raised in the three pieces are very similar. Indeed in one case both Grodecki and Hepple quote the same small passage from Kahn-Freund's 1966 article "Reflections on Legal Education" (Grodecki 1967, p 11; Hepple 1996, p 18). All three lectures draw on previous debate about legal education but the difference lies in the degree to which there is a sustained engagement with that work. Hepple and Leighton provided a sustained analysis (in Leighton's case drawing on her own previously published research) which is a contribution to what they understand to be an ongoing debate. Grodecki states a personal position designed to set the tone for a newly established law school.

The point here is not to argue that work in the first three decades after the Second World war was without merit or unworthy of publication. In their time they served a purpose. They indicated a line of thought and, sometimes, the focus for the work of a particular course or individual law school. But each lecture, each presidential address and each article was merely a pebble cast into a pool. They caused ripples but nothing remained after the ripples had passed. There was little attempt to build on the work of others within the law school or to look outside the law school for inspiration and intellectual sustenance. The principles of scholarship which such writers maintained in their substantive legal writing were forgotten when they contemplated legal education. If the SPTL's presidential addresses were indeed in part "learned contribution[s] on the subject of legal education" (Wade 1951, p 417) they were so largely in the sense that the presidents were learned men and they made a contribution to the subject not in the sense that their learning was evidenced by their contributions.

The important change in recent writing is in the quality of the scholarship or research that is brought to the writing. The stance on legal education that the writing takes is not germane to this point. Debate about legal education is so beset with divisions that it is tempting to think that even when writers say they agree about some matter it is only because they are unconscious of some already extant point of difference which divides them. However, in virtually every area of writing about legal education there has been a dramatic improvement in the quality of that which is being written. Writing is no longer simply either an anecdotal account of what the writer is doing in her or his own teaching or an ex cathedra pronouncement on the nature of legal education. There is, rather, a genuine attempt to connect with previous work, to enter into debate, to sustain argument by reference to wider scholarship or research into higher education of the psychology of learning and to ground empirical statements in properly thought out and thought through empirical investigation. This is not to say that all writing is of the same quality. The frivolous, the vague and the simply silly are still to be found. But this is so in the case of any area of legal writing and, indeed, is so in any area of academic writing. What is of note is the fact that there is now developing a form of writing relating to legal education that both accepts that, if we be dwarfs, still we can stand on the shoulders of giants before us and that, even if we are all dwarfs, we should make our shoulders serviceable for those who will follow; that there is now a form of writing that thinks in terms of the possibility of academic and intellectual progress and acknowledges the academic and intellectual past.

The Range of Writing About Legal Education

The rapid growth in interest in legal education and the wide variety of sources in which it is to be found means that it is easy to underestimate the quantity of literature that is available. The Law Teacher and the SPTL Reporter have long devoted themselves to publishing articles on legal education; to these two must now be added the Web Journal of Current Legal Issues which gives specific coverage to legal education. Journals such as Feminist Legal Studies, the Journal of Law and Society, Law and Critique. the International Journal of the Legal Profession and Legal Studies all have occasional articles of legal education. Increasingly work on legal education is published in the form of collected essays such as the two volumes edited by Birks and published by Oxford University Press (Birk, 1992; Birks 1996).

It would be a mistake to analyse the increase in interest in legal education purely in narrowly nationalistic terms. Writing about legal education published abroad has been a source of interest and inspiration for those concerned with domestic debates. The most obvious but far from unique example of this is to be seen in the case of Kennedy's article "Legal Education and the Reproduction of Hierarchy" published in the American Journal of Legal Education (Kennedy 1982). Kennedy's article was not only much discussed in America being cited, according to the LEXIS database, 94 times between publication and 1996 with a further 75 citations of an amended version published in Kairys' "The Politics of Law" (Kairys 1990); it has also been highly influential in the United Kingdom, leading, for example, to Stanley's "Training for the Hierarchy? Reflections on the British Experience of Legal Education" (Stanley 1988). Articles in the Journal of Legal Education and other foreign sources are, in this sense, as much a part of the British legal education field as is literature in domestic publications. Moreover, writing published abroad is not simply a resource for reflection by those interested in British legal education; some writing published abroad is a direct commentary on developments in British legal education (see, for example, Walker 1993). Equally, the international character of research and scholarship in legal education is emphasised by the fact that writing from abroad published in Britain can also be a direct commentary on developments in British legal education (see, for example, Arthurs 1997).

The increasing range of places where articles on legal education are published is mirrored by the increasing range of issues discussed with respect to legal education. It is the combination of the range of issues discussed and the quality of the work produced that gives rise to the suggestion that there is a new developing discipline of legal education. Just as it is impossible to give a definitive list of places where literature on legal education is published so it is impossible give a definitive list of issues discussed. However, some indication of the different directions in the debate is possible.

First, there has long been an interest in the nature of the university law school. This has both taken the form of empirical observations about what is to be found in law schools and conceptual arguments about the purpose and function of the law school; the former being important, but not determinant, for the latter. There have been a number of significant general empirical surveys. Those by Wilson and Wilson and Marsh (Wilson 1966; Wilson and Marsh 1975; Wilson 1993) were followed by, and have overlapped with, the ALT surveys (Harris and Bellerby with Leighton and Hodgson 1993; Leighton, Mortimer and Whatley 1995) The most recent general empirical study is the Harris and Jones survey (Harris and Jones 1997). Whilst questions other than those asked by Harris and Jones still remain and much further analysis of its results needs to be done the combination of the 26 pages of the questionnaire on which the survey is based (Harris and Jones 1997, p 42) and the 88 per cent response rate achieved (Harris and Jones 1997, p 45) is likely to mean that the Harris and Jones survey will provide a sound foundation for empirical analysis of British university law schools for some time to come. These general surveys have been supplemented by empirical examinations of particular areas such as the curriculum content of individual courses (for example, Barnett and Yach 1985; Snaith 1990), provision of services for students (Addison and Cownie 1992) and law school admissions policies (Lee, 1984).

Conceptual studies of legal education have shown the same kind of variation in scale and intent as is seen above in the case of empirical studies. On the one hand there have been a large number of studies looking at the purpose and function of law schools (for example, Bradney 1992; Savage and Watts 1996; Twining 1994). On the other hand some writers have looked not at what is done in individual courses (as in Barnett and Yach 1985; Snaith 1990 above) but at what should be done in those courses in the light of general educational theory or in the context of the nature of the law school (for example, Warrington 1984; Green, 1985 and Ward 1993). Whilst these studies often display a quite radical degree of disagreement about the function of the university law school they are, nevertheless, when taken together, central to any argument about an emerging discipline of legal education. Without a clear idea of purpose or function there can be only the most minimal development in legal education. Improving teaching, research and scholarship depends on knowing what the teaching, research and scholarship should aim to do. Thus in debating this question of purpose, and in linking that debate into wider debates about the nature of higher education and the nature of learning, legal education becomes more self-aware.

A particular focus for work in the new era of writing of legal education has been a concern with the process, nature and function of teaching and assessment. It is in this area that the gap between the new interest in legal education and the traditional concerns of the legal academy is most marked. The Index to the Journal of the Society of Public Teachers of Law for 1924 to 1938 and 1947 to 1980 shows a total of two articles on teaching and practice, four articles on teaching techniques (three of those written in the 1970s) and 9 articles on examinations. The Index does not disclose any other headings which relate to the manner of teaching. By way of comparison in the years 1990 to 1995 The Law Teacher, which was not published during most of the existence of the Journal of the Society of Public Teachers of Law, published 49 articles on teaching method, teaching techniques, assessment and so forth. Each year of The Law Teacher in the 1990s has seen almost as much publishing on direct teaching techniques and on assessment as was seen in the entire history of the Journal of the Society of Public Teachers of Law. This is not merely a factor of the increased rate of publishing in the field of legal education; it is also a matter of a change in proportions published. For example the 1990 Special Issue of the Law Teacher, the Silver Jubilee Collection "Developments in Legal Education 1987-89", contained 16 articles, 12 of which were devoted to teaching. Nor is this increase in writing about teaching simply a feature of the publishing policy of The Law Teacher. The Web Journal of Current Legal Issues regularly publishes articles on teaching practice (see, for example, Maughan 1996). The International Journal of the Legal Profession has published a number of articles on legal skills (see, for example, Nathanson 1996) whilst other pieces on teaching practice have been published elsewhere (see, for example, Macfarlane 1992). Moreover, the 1990s has shown the publication of a number of different collections of essays and monographs on issues related to teaching (for example, Jones 1994; Mackie, K, Gold, N and Twining, W, (eds) 1989; Maughan and Webb 1995; Webb and Maughan (eds) 1996). Finally, in this regard one should note that the new National Centre for Legal Education's remit is precisely "to encourage and support the pursuit of innovative teaching and learning methodologies in law" (NCLE 1997, p 1).

A New Discipline of Legal Education?

The above demonstrates the increase in interest in legal education, the width of that interest and, to some extent, the quality of the work done. Does that demonstrate the existence of a new discipline or area of academic work entitled legal education?

Becher surveyed the literature on what it is that makes something an academic discipline in his book "Academic Tribes and Territories" (Becher 1989, chp 2). He notes, "[t]he concept of an academic discipline is not altogether straightforward, in that, as in many concepts, it allows room for some uncertainties of application" (Becher 1989, p 19). Becher describes a number of variables taken from previous writer's work which, together or independently, can be taken to connote the existence of a separate discipline. Some of these variables relate to the intellectual coherence of the discipline and its sense of 'differentness' from the intellectual schemes of other disciplines. Other variables relate to more tangible factors about the social structure of the discipline. Thus, on the one hand particular ideas and terminology unique to one area of thought may suggest the existence of a discipline. On the other hand departmental structures devoted to a discipline, subject associations and specialist journals can suggest the same thing. No one item is, in itself, sufficient to justify the suggestion of the existence of a discipline: rather the interplay of a number of factors will work together to provide the evidence of the discipline.

Law fits into the arguments above at two different levels. Clearly a discipline, though with increasing elements of interdisciplinarity (Thomas 1997), law has also long seen itself as being divided within itself. Thus, there are family lawyers, land lawyers, legal theorists and so forth. These internal divisions have been characterised first by subject areas (for example, criminal lawyer rather than tort lawyer) but also, increasingly, by methodological approach (for example, doctrinal rather than Critical Legal Studies). Their existence is verifiable by reference to the range of different matters noted by Becher. There are specialist journals relating to particular areas or particular approaches to law (for example, the Criminal Law Review or Law and Critique). There are specialist professional associations which again either relate to particular areas or to particular approaches to law (for example, the Intellectual Property panel of the SPTL and the Association of Legal and Social Philosophy). Particular courses are taught or are taught within the context of a particular methodology. Finally, areas and approaches distinguish themselves by their use of distinctive conceptual terminology.

Looked at in the most rigorous fashion the study of legal education is not a separate discipline or area. To use Becher and Kogan's terminology, for example, it is not a "basic unit" in the way that sociology is because it rarely has a corporate life of its own (Becher and Kogan 1992, p 85). (The Centre for Legal Education at Warwick University might constitute such a corporate focus but it is, as yet, uncertain how many of those involved in the study of legal education will be associated with the Centre and how close any association will be.) Equally, it is unlikely that anyone would want to argue that the study of legal education can be separated out from law in the way that it might be possible to argue for the separation of statistics from mathematics (Becher 1989, p 19). However, such arguments would also apply to the long accepted divisions of land law or critical legal studies. Whilst within the university law is frequently accorded faculty status it is not, except in Scotland, then divided into separate departments. What is at issue is whether they study of legal education is, or is becoming, a separate discipline in the same way and to the same degree that, for example, company law and company lawyers or doctrinal law and doctrinal lawyers are separate from their fellow in the legal academy.

Providing the evidence that the study of legal education is, or is on the road to becoming, a separate discipline in the terms above is largely to rehearse the early section of this article on the new interest in legal education. Some individual academics now identify themselves as being wholly or partly concerned with researching into or teaching about issues related to the study of legal education. There are now the specialist associations, the subject-specific journals, the international interchange of ideas and the common currency of argument which is associated with a different discipline within law. The numbers of individuals, journals and associations compared with the longer-established divisions. Nevertheless they do exist and they are showing signs of rapid growth. The question then is, is this to the advantage or disadvantage of legal education?

Opportunities and Risks

The first opportunity offered by the development of legal education as a separate discipline can be extrapolated from a comment in Bell's 1996 article on legal skills. Bell argues that some of the difficulties in dealing with and talking about skills in the curriculum

As Grimes has noted "[a] lively, if not yet extensive debate on the relevance and content of legal skills programmes, on both undergraduate and vocational courses has been and is taking place" (Grimes 1995). However, whether the teaching of skills is seen as irrelevant to the work of the legal academy or central to it, or whether a position is taken at some point between these poles, Bell's "commonalty" is vital to the debate. If we do not talk about the same things we talk not with but past each other. To put the matter on a somewhat more sophisticated level academic discourse in universities has always presumed, through the conventions of lectures, conferences seminars and even the act of publication, the possibility of conversation and community (Davies p 27; Feldman, p 516). This in turn presumes the possibility of a common language which makes communication possible. The existence of a discipline of legal education, with the attendant interchange of argument, both gives the possibility of examining and clarifying our language and also provides a disciplinary procedure which helps to ensure that that language is used correctly. This applies not just to arguments about skills but to all aspects of debate about legal education.

The second opportunity offered by a discipline of legal education is the status that it brings to the subject. Reflection, including self-reflection, is not just a way of producing improved efficiency in one's work; it is also a moral duty incumbent upon one as an human being (Aristotle 1976, pp 75-76). Every academic should be thinking about the nature of their work in all its aspects. Every academic, because they are an academic and because they are human, should both be thinking about the function of the university and the mechanics of better teaching. However, we know that not every academic will choose the subject for their published research in accordance with moral duty. Work is done, at least in part and at least for most academics, in order to secure reputation. "[T]he main currency for the academic is not power...but reputation" (Becher 1989, p 52). Reputation is the result not just of the quality of the work done but of the importance attributed to the area within which the work is done. If the study of land law is seen as a discipline but the study of legal education is not more people, for career reasons, are likely to work in land law than to work in the study of legal education. The growth of a discipline of the study of legal education is thus likely to attract more people to work in the area. This in turn increases the quantity, and therefore possibly the quality, of the work done. This then increases the claim of the area to disciplinary status and thus the area grows.

The final opportunity afforded by the development of a discipline of the study of legal education is the possibility of building a coherent research strategy. Writing in 1983, Leighton and Sheinman commented adversely on the "piece-meal" nature of empirical research into legal education at that date (Leighton and Sheinman 1986, p 8). Building that coherence raises severe intellectual difficulties. Mackie has argued for the advantages of a "managed" research strategy into legal education where research is directed into predetermined areas of inquiry (Mackie 1990). Such a suggestion finds a place in a stream of writing which has argued that there are increasing constraints on individual researchers and their research; that research is frequently managed by fund-providers, government and others (Kogan and Henkel 1992; Scott 1984, pp 229-235). As against this, however, it is important to note those who have argued that history shows that the management of a research agenda is, at best, difficult and, more often, disastrous (Russell 1993, pp 75-79). In any area or discipline to know what it is that should be researched into; to know that, not just for oneself, but for everyone; to know it, not tentatively but certainly, is to know a lot; is probably to know more than anyone, in fact, does know. In most of the natural sciences and in some areas of the social sciences financial exigencies have meant that research management has become a fact of life. This does not demonstrate that such an approach is desirable. It might merely mean that in some areas where research needs considerable financial backing selectivity and management are, at present, inevitable. In other areas of the academy the dominant ideology still holds to the notion that, if research is inherently creative, it is contradictory to think that the creative direction can be, to any great degree fixed, before the process has begun. Nonetheless, it is possible to identify areas that have consistently been identified as being in need of research. Thus, for example, both Leighton and Sheinman and Barrett have, in separate articles, called for research into the relationship between the student experience and their subsequent careers (Leighton and Sheinman 1986, p 8; Barrett 1990, p 6) whilst Barrett, like Bell above, has directed attention to the need to clarify terms used in argument about legal education (Barrett 199, p 6; Bell 1996, p 9). Equally, there are areas where there is at the moment an obvious short-fall in our data. Thus, for example, whilst there is still room for further surveys of law schools based on questionnaires there seems to be a greater need to supplement this quantitative data with qualitative data based upon interviews and observations of law schools. The discussion inherent in the life of a discipline can allow for a consensus to develop about the significant areas of research that need to be done whilst allowing the individual the freedom to pursue their own ideas at the same time; thus individual's research programmes can meld into a coherent but unconstraining discipline.

Each opportunity offered by the emergence of a discipline of the study of legal education is at the same time a threat. A common language is not simply a pure good. It can also limit the possibilities of argument and conceal the realities of the subject-matter under discussion. Words deceive at the same time that they describe. Concepts, once determined, only allow for analysis within their own terms (Brandom 1979, p 194). Thought can be creative and produce wholly novel ideas but a common language can be as much a bar as an aid to this process. "There is always the danger that in times of rapid change we may continue to carry on debates in the outdates terminology of past argument, the quaint assumptions of no-longer-relevant positions." (Mackie 1990, p 139). Disciplines can, through their social structures, create paradigms that ignore their own intellectual shortcomings (Kuhn 1970). The ostensible freedom to select one's own research agenda can be subverted by a refusal to publish or take seriously issues and arguments outside those deemed important by the discipline. Nevertheless, notwithstanding these dangers, legal education is likely to be better served now that consideration of its own process is given as high a status as the substantive areas that it examines than it was when most articles on legal education were the musings of an otherwise idle afternoon.

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