<aside> <img src="/icons/info-alternate_gray.svg" alt="/icons/info-alternate_gray.svg" width="40px" /> A curriculum review is one of those times that come around every 5 - 10 years when an institution, a faculty, or a school stops to take a look at the what, why, and how of what it is teaching. It is a time of reflection, sometimes confrontation, but also renewal, renovation, and sometimes innovation. I wrote the following in August 2023 on the back of discussions and musing on what it means to teach skills in a law curriculum in an undergraduate course in an Australian university law school. Views are my own, names changed to protect the innocent etc.
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INTRODUCTION
Educational Design emphasises the structuring and delivery of units rather than specific content decisions that are made by subject matter experts. Here, I discuss how a new curriculum might be implemented, to integrate legal skills teaching alongside doctrine and black letter law. I frame the discussion of implementation by identifying and describing the challenges that emerge when considering how to translate a new curricular model into classroom practice.
The initial challenge is recognising the inherent professional nature of the Bachelor of Laws (LLB) degree. As a prerequisite to legal practice, the LLB curriculum is both an academic or scholarly undertaking and an opportunity for students to learn the skills that they will use in legal practice[1]. Students’ knowledge and skills must be rigorously assessed for comprehension, and crucially, they must receive feedback on progress at regular intervals. This ensures a continual loop of learning, evaluation, and improvement, preparing students for the real-world rigours of legal practice. Subsequently, the implementation of a new curriculum model needs to address the ambiguity and sometimes contention that surrounds the term skill as it relates to legal education.
At its core, a legal skill can be understood as the manifestation of theoretical (legal) knowledge as practice-based actions and behaviours i.e., the performance of foundational tasks required of practising lawyers. In most, if not all cases, a skill is underpinned by theory. In turn, that theory is (usually) the result of research reported in the literature. Making sure the connection between research, theory, and skills is explicitly taught is key for supporting students’ mastery and aligning instructors’[2] efforts with the goals of the curriculum review, policy, and classroom practice. The alignment of instructor efforts with a new curriculum is especially important since the teaching of doctrine combined with the implicit and explicit modelling of legal skills is also a vehicle for exposing students to the ethical (and legal?) obligations of practising lawyers.
Practical consideration of how skills can be embedded within a curriculum is also necessary. The literature on legal education contains numerous discussions about the optimal way to integrate legal skills into the curriculum. Some scholars advocate for weaving them throughout the course, arguing for a more integrated approach. Others see merit in compartmentalising skills into distinct subjects. Embedding skills throughout the curriculum allows for teaching them in the context of substantive law and doctrine. Discreet individual units allow for a more focused exploration of each skill, facilitating deeper comprehension and mastery. However, there is no consensus in the literature (legal education or otherwise) as to which is the “better” approach. Each of these options is elaborated on below, emphasising their significance in terms of the implementation of a new LLB curriculum.
A SCHOLAR’S PROFESSIONAL DEGREE
A law degree is undeniably an academic and scholarly pursuit, historically connected to study in the humanities[3], exploring the philosophical, socio-political, historical, and sociological underpinnings of legal systems. Legal education delves deep into jurisprudence, which entails a philosophical understanding of the nature of law and justice in society[4]. This is evidenced by students analysing past cases, and developing their ability to think critically, debate, and derive legal precedents[5] – activities that are all intrinsically academic.
Conversely, a professional law degree serves as a platform for developing authentic (real-world) practice and is characterised by a curriculum that incorporates practical components like simulations, moots, internships, and community legal clinics – activities that allow students to apply theoretical knowledge in practical scenarios[6]. The inclusion of legal ethics, professional conduct, and practical legal skills training (like drafting, negotiation, and client counselling) underscores the role a professional law degree plays as a primer to practice.
This dimension of legal education cannot be understated.
Martin and Hess describes this epistemological duopoly of knowing versus knowing how as an important part of preparing students for practice – a core goal of legal education – and creating effective professionals through knowledge, skills, and values[7].
With that in mind, it is important to clarify that skill in this context is not a diminutive term. It represents an holistic blend of understanding, reasoning, analysis, communication, and actions/behaviours that are indispensable in legal practice. Necessarily, the curriculum needs to address students’ ability to perform the foundational tasks required of them as practising lawyers. This is not a contentious position. The challenge is deciding where exactly should the teaching of skills be placed in the curriculum to yield the best learning outcomes for students. What approach will lead to graduates being effective professionals[8]?
INTEGRATED V. DISCREET SKILLS TEACHING[9]
There are several ways of describing skills teaching reported in the literature on legal education. It is just as accurate to label these approaches as combined and separate (or stand-alone)[10] and there are advantages and disadvantages to both (a challenge faced by curriculum designers in many other disciplines[11]). Table 1, below, outlines the two approaches and describes some of the advantages and disadvantages.
Table 1. Integrated v. Discreet Approaches to Skills Teaching in Legal Education
| APPROACH | INTEGRATED APPROACH | DISCREET APPROACH |
|---|---|---|
| Definition | “combined”. Skills are incorporated into the curriculum and taught in combination with substantive law subjects. Skills and substance can be designed to feed off each other while achieving their own objectives and learning outcomesnotion://www.notion.so/Skills-in-Law-da4b165f433f4c8c8721d7587fda47bd#_ftn12. | Skills are incorporated into the curriculum as discrete subjects or units. Although skill units are often based in substantive law, they are not attached or confined to any designated substantive law subject, and they are not necessarily designed to further substantive law objectives |
| Advantages | -Integrated skills teaching allows students to see and practice skills within the context of the substantive law unit. | |
| -There are multiple sub-approaches to the kinds of integration that take place in Australian law schoolsnotion://www.notion.so/Skills-in-Law-da4b165f433f4c8c8721d7587fda47bd#_ftn13. | ||
| -This is the current practice at the Sydney Law School. As such, there is an opportunity to formalise the approach, recognising colleague’s practice and asking colleagues to inform/inspire through sharing practice. | - Provides students with a solid foundation in learning the general methods, principles and criteria for using skills. |
I would favour a discreet approach. From a (somewhat pragmatic) educational design perspective, dedicating specific units, for example in the first year, limits the scope of design and development work required for curriculum implementation. Many law schools have a potentially small pool of instructors who have the experience and/or willingness to undertake skills-based teaching but this allows for more in-depth collaborations between instructors and between instructors and educational designers, to the benefit of delivery. Nevertheless, skills teaching cannot be confined to a dedicated first-year unit alone. Students need to be continually reminded of, retaught, offered practice opportunities, and have their skills assessed throughout subsequent years of study. Even where a discreet approach is used, a change in mindset and classroom practice is required across all curriculum levels and among all instructors.
The ghettoisation of skills to “something done in first-year” would be an undesirable outcome of a curriculum review. Instead, the view should be that discreet, individual units allow for a more focused exploration of each skill, facilitating deeper comprehension and mastery. By isolating specific skills, each receives the comprehensive attention it deserves, and students are well-prepared in every aspect of their future practice.
Like the discussion of skills, discussion of the resistance to the implementation of skills teaching in law schools is recorded in the literature regularly over many decades, regardless of the approach being considered[14]. While the diverse perspectives expressed about the use of the term skill or legal skills, among colleagues is to be respected, it is often challenging to understand these reservations.