Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

All the rules and ideas we fill our heads with… Teaching law or training lawyers?

In 1939, Robert Menzies gave the commencement speech at Canberra University College (which would later become the ANU Faculties).  The speech ought to be read by every undergraduate in the country; I had to get a copy brought up from the archives where all the little-read books rest in half sleep, half death.

He delivered the speech in April 1939, shortly after becoming Prime Minister and six months prior to entering Australia into the Second World War.  Menzies worries that the ‘barbaric philosophies of blood and iron are resurgent’ and that democracy is ‘on the defensive’, and he sees in universities part of the answer.

It is difficult, armed with hindsight, not to be cynical.  For all the universities in the Anglophone world, and for all of the leaders with degrees from those universities, there was a lot of sympathy with Nazism among the educated elite.  Their university studies did very little to disabuse them of their worst prejudices.  The same occurs today: how many students really change their minds about The Big Things during their studies?

Menzies gives seven defences of ‘pure’ academic learning.  One of those defences regards practical training and, in particular, the practical training of lawyers — a topic about which I spend a lot of time thinking.

Before I cover Menzies’ argument here, it is worth noting that this discussion takes on a variety of forms.  Down at the Law School at Deakin University, there has been a lot of debate — of varying degrees of hostility — about how a Law School should function.  Deakin made the decision to focus on key areas of legal scholarship, and made hiring and firing decisions accordingly.  Over on Stephen Matchett’s blog, Campus Morning Mail, he writes (crazy bold font all his):

More to law than Priestley’s Eleven

Deakin U law school has hired international academics, including scholars from the Sorbonne, LSE, Harvard, Stanford and Oxford. “These talented scholars also bring a record of research and work experience at the World Bank,UN agencies, and major law firms, to sit alongside the school’s Australian commercial, human rights, constitutional and resources law expertise – striking a balance between global priorities and local relevance, the university told CMM last month (December 12). But a learned reader wonders whether any of the learned new chums can practise law in Australia, which requires completing core subjects, known as the Priestley Eleven. If they haven’t, how can they teach they teach local students? “What is required of students should surely apply to those teaching as well,” the reader remarks.

CMM asked Deakin U about this and a spokesperson replied; “Deakin University employs researchers and academics from across the globe and will continue to do so as part of our commitment to hire the best talent possible so that we can contribute to a globally-connected world and offer our students the best teaching experience possible. Qualifications required for practising law differ from those necessary to conduct world-leading research and teaching, which is what our university aims to deliver. The new employees have trained at world-leading universities including Stanford, Harvard and Oxford, giving our students the best chance of succeeding in the international legal services market.”

The Priestley Eleven is a politically charged concept.  Every few years or so, there’s some argle bargle about what should be compulsory and what should not.  The current list is:

  1. Torts
  2. Contracts
  3. Property
  4. Equity
  5. Company law
  6. Criminal law and criminal procedure
  7. Evidence
  8. Civil procedure
  9. Constitutional Law
  10. Admin law
  11. Legal ethics and professional responsibility

Legal theory is missing from the list, and I think that is a major issue.  Similarly, Indigenous law is missing.  I would scrap legal ethics.

But one of the problems with this In/Out method of reasoning is the framework for degrees in Australia.  In order to be awarded this or that degree in Australia, you need to satisfy various regulatory requirements.  If you increase the number of mandatory subjects, you reduce the number of electives a student can undertake, reducing their ability to tailor an education to meet their needs.

But maybe that’s not a bad thing.  To return to Menzies:

[P]rofessional training has, particularly of recent years [1930s!], tended too much in the direction of the factual.  University courses are cluttered up with sheer exercises in memory, as if it were the mark of a competent doctor that he should be able to recite the contents of the Pharmacopoeia and of a sound lawyer that he should have got the Bills of Exchange Act by heart.  As a lawyer of some experience, I cannot conceive of a real legal training which does not, by the avenues of jurisprudence and legal history, penetrate to the real and dynamic spirit of the law.

I lost count of discussions I’ve had with other students who ‘just want to be taught the Act’.  Their argument is that future employers will just want you to apply the Act.  Choose subjects which are practical, which ‘teach you the Act’, and employers will snap you up, they said.

It is, no doubt, a result of privilege that I could disregard worrying about future employment as a motivating factor in my reasoning about what subjects to study.  I saw genuine concern in the faces of my colleagues that they really needed to do everything possible to put themselves ahead.  When I disagreed, I usually saw bewilderment — ‘How could you not care?  Why are you studying law?’ — but very occasionally I saw relief.  There was the look of a person who was happy for me to be a nogoodnik with fanciful idealism about the purpose of legal education because that was one person who wasn’t competing with them for jobs.

With that caveat in mind, I still disagree with the utilitarians on this one.  If you are taught the Act, your knowledge is useless the moment the Act changes.  Far better to be taught statutory interpretation so that you always have the skills to deal with malleable statutes.  There have been years where the most recent edition of the textbook has been wrong, even at the time of printing, due to rapid legislative change.

More importantly, it means that you only have skills for the jurisdiction of your Act.  Fine, you are the hero of the New South Welsh Crimes Act.  You even, due to some defect of personality, keep up to date with all its amendments.  But what good is that to you when your family wants to move to the UK, Canada, or the United States?  What good is a legal education that cements you to one particular area?

But even this takes something major for granted: that the purpose of a legal education is to be trained as a lawyer.

Now we can return to Deakin University.  Think about the mental content of the person who worries that all the lecturers at Deakin Law School should also be able to practice law in the local jurisdiction.  Think about the sort of person who thinks that teaching the Priestley Eleven means teaching students how to apply the law as it is today so that they can go work for the local solicitor on the nearest high street.  There is the sort of person who doesn’t value legal scholarship in Menzies’ sense, but who wants to train lawyers for the local area.  A local area which, we should all remember, has no jobs.

I want to spend my whole life writing about law.  I want to get the public excited about legal issues, and to help them to express their ideas about how the law should work.  I want to take popular intuitions about law and pull them apart to see what the guts look like — are they just hiding petty prejudices, or are they actually better than the scholarly accounts?  And how do folk legal intuitions operate more effectively to regulate behaviour than actual legislation and court decisions?

But none of that is available to me if scholarship is devalued to promote the conveyor belt of training lawyers.

But we can, and should, go even further than that.

Perhaps we should reject my plea for legal scholarship on purely practical grounds.  The vast majority of people studying law want to become lawyers.  A minority aspire to be champion lawyers, but the bulk of them just want a respectable pay packet at the end of the day.  Ps make degrees.  These students try — often incorrectly — to guess what future employers want.  Maybe they even try to guess who their future employers are.

Wouldn’t it be better if universities took on this burden for students?  The student of today does not know what skills they will need to maximise their opportunities when they hit the workforce, but universities do.  There is a lot of research into future legal jobs, generally finding that the future legal workforce will be more global and more corporate, with a greater need for lawyers with skills in data analysis and statistics.  There is a pressing need for lawyers with skills in international relations and with language skills, lawyers that companies can use to solve problems through non-legal options.

Framed differently, wouldn’t it be better if universities made a decision about what sort of students they want to produce and attract students with similar aspirations?  The University of Marktopia wants to produce law students with skills in big data analysis, so all of its law courses have some component which involves applied statistics.  The University of Markistan wants to produce law students who are global leaders, so all of its law courses have a Great Work set as required reading and assessment involves using legal analysis to interrogate an issue in the text.  The University of Markopolis wants to produce law students who will be an asset to the marginalised, so all of its law courses focus on economic and social inequality.

Why don’t we have this already?  I think one of the reasons is that universities are a bit scared of students.  If you don’t give students what they want, they punish the university in student satisfaction scores.  But can a student identify a good education?  I’ve been in a class that I thought was really disappointing — the lecturer was constantly unprepared and he talked utter, utter nonsense as a consequence — but other students thought it was a good class: the assessments were easy and he was a lenient marker.  Conversely, one of my favourite classes was absolutely punishing and I got marked harshly.  When I recommended the class to others, they were hesitant because it might ruin their GPA.

The other reason is that there’s risk involved.  Deakin University decided it wanted to be known for particular areas of law and was going to invest time and money into achieving that outcome.  But it’s an exhausting process.  Far easier to just coast along and continue as you always have.  Most students want to be mediocre.  They want their degree and they want it with the least amount of fuss.  Practically all students now have to balance work with study, meaning there’s less desire to put energy towards the non-essential stuff.  They just want the Act, not the data, or novels, or class theory.

I know the sort of lecturer that I want to be, but I would be lying if I weren’t worried that I won’t find students who want the sort of education that I value.  It’s all very well for Menzies to champion scholarship —

‘academic learning’ as it is sometimes half-contemptuously designated, is one of those civilised and civilising things which the world needs as never before.  And it is needed the more largely because we are so frequently unconscious of the need.  […] Let me defend a so-called useless scholarship on the great grounds that it represents a sanity badly needed in an insane world; that it stands for a due proportion in life and living; that it develops the human and imperishable elements in man; that it points the moral that the mere mechanics of life can never be the sole vocation of the human spirit.

— when the global economy is fucked, there are no jobs, and governments want universities for the sole purpose of servicing the fucked economy.  We spend a fortune ‘protecting the borders’ and keeping a standing army, but for what?  Are we merely protecting the borders because the borders are fragile, or do we want to protect something worthwhile within the borders?  Do we fight wars overseas simply because wars need to be fought, or is it because we hope that there might come a time when there’s not going to be a next war?

For most people, the reality is that there is no bigger purpose.  We protect borders because we want stability; we fight wars because we want stability; we go to university because we want stability.  Don’t rock the boat.  Menzies isn’t speaking to the marginalised in society; he is talking to the end of town that, in 1939, could afford to indulge themselves for three years without employment.

So that’s where I’m at with my current thinking on legal education.  I want to believe in noble purpose where learned friends were taught both to be learned and to be friends.  I want to believe in a legal education which produces legal scholars rather than mere lawyers.  And, most of all, I want to believe in a university system which challenges people to be something different rather than pandering to the people that they are.  But I live in a world of practical people: universities fearing stricture from both students and governments; students wanting to be employable without ever being given the tools to shape that employability; governments wanting universities to train human resources.  And all of this is in the context of a seriously broken economic system.  Universities trying to cut costs; students needing to balance work and study; and governments abandoning a generation to the severe human waste of market forces.

And, even thought this picture is bleak, I’m still optimistic.  The world could (and will probably) get a lot worse, but it also means we have opportunities to rebuild things differently and grow new centres of learning.  I just wish a broader range of people were engaged with the conversation.

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