Legal education: are the right things being taught?

The legal landscape is changing and questions are being raised about whether legal education is still fit for purpose. Lawyer 2B assembled some experts to give their views…

A law degree obviously needs to be academically rigorous. But should a law degree be viewed primarily as an academic or vocational course?

Professor Julian Webb, University of Warwick: I think it’s a false dichotomy. One thing we hear particularly from larger law firms and chambers is that they do want people with good academics and have a good grounding and sound knowledge of legal principles. The academic and vocational are entirely consistent.

We are operating in an increasingly complex, segmented, divergent market – both in terms of legal education and legal services. In that sense, there might well be an argument for saying that you need to keep the law degree reasonably broad or there’s a risk that students might specialise too much, and end up focusing on the wrong thing or the flavour of the month rather getting than a solid, wide-ranging grounding in law.


 

Professor Richard Moorhead, UCL: I think that it depends on the motivations of the particular student. There may be students who are very certain that they want to do a vocational degree and practice. But then there is a risk that they may have too narrow a perspective and it might not be as useful as they thought. When I was a student, some of the most interesting things I did were on the psychology of lawyering and the economics of lawyering. Those are the things that really stayed with me and enabled me to take a thoughtful, independent view on what goes on in practice.

Webb: Whatever students’ aspirations may be, only 40 per cent of them end up as lawyers. In a way you shouldn’t be gearing law degrees towards a narrow a range of jobs.

Crisp
Peter Crisp is a former barrister and dean of BPP Law School

Peter Crisp: dean of BPP Law School: Yes, the fact remains that well over half of law graduates do not take the subject any further. They don’t go on to do the Legal Practice Course (LPC) or Bar Professional Training Course (BPTC), they never go on to practice. At the moment, the undergrad law degree falls between two stalls. On the one hand it has to satisfy professional body requirements. On the other, it also needs to satisfy people who do not go into practice and find law interesting from a social, historical or psychological perspective: those are all perfectly legitimate lenses to look at law through. So for example, a module on women and the law is a very interesting, academically sound way of looking at how law and gender have interacted over the centuries. There is nothing wrong with that.

When BPP launched its law degree five years ago we needed to decide why anyone would come to do their LLB here. Why would they come to us? We had a strong postgraduate brand but no reputation at undergraduate level. We made the decision that our degree would take a professional slant. But that does not mean other approaches are wrong.

Webb: Is there scope for law schools to differentiate, more than they do currently? I think yes, absolutely – it would be exciting. I think that there is nothing wrong with having law schools that are more overtly vocational alongside schools that are more about providing really strong academic foundations.

John Flood
John Flood is Professor of International Law and Business at University College Dublin

John Flood, Professor of International Law and Business at University College Dublin: Whenever you look at university prospectuses, law is sold as a liberal education. I have yet to see what is liberal about it. That to me is complete nonsense. Most degrees are doctrinal and technical. As far as the content goes, there is to my knowledge no clear rationale for the electives. They exist due to historical accident, they are not an irreducible core.

I think it would be a great idea to have a liberal arts law degree. I would celebrate it, if somebody taught in a way that left the employability stuff out and focused on making it exciting. But what most schools do is say they’ll give you both – yet they don’t give you either.

Are we teaching the right things? No. I say that because the legal market is changing. Technology is changing. The use of algorithms to analyse cases, the use of big data – none of this is taught. Stanford University has a design school where people are demonstrating law in a graphical way. Law is in text form now but it could really lend itself to being represented graphically.

Can you teach commercial awareness or should it be learned on the job?

Crisp: I don’t think you can underestimate the importance of commercial awareness. People have to understand the profession they are entering. First, law firms are businesses. They are only successful if they are run successfully. You can be brilliant at the law, but if you are a rotten businessperson, you will fail. Students need to understand how law firms finance themselves, how billing works.

Clients do not come to a lawyer because they are interested in the law. They are not interested in the law. They have a problem and they want you to advise them and manage the risks of whatever they are doing.

Webb: This is a difficult question. To some extent, anything can be taught. But there is still a lot of uncertainty about what commercial awareness really means.

In some ways, even at the academic stage, I don’t have a problem with teaching a basic level of commercial awareness. It is really about understanding how the law works in context, within a socioeconomic environment. But equally it should not be the be-all and end-all.

One area where it does have value is that it might help reduce some of the gaps in cultural capital that some trainees have, particularly those from a less professional background, who have less idea of what offices and the corporate world are like. It might also help in developing a bit more of a diverse profession. You have to be careful about dismissing it as irrelevant at the academic stage because it is a determinant of who gets the job.

Richard Moorhead: I think the focus on commercial awareness is in some ways sensible and in some ways silly. I would agree that students need to be more aware generally of social, economic and psychological factors at work when they practice law. To be able to understand whether your involvement in a deal is dubious, you have to be able to understand the commercial structures you are working within. You need to understand the psychological processes behind negotiation.

There is significant importance is being aware of your environment but I think it is more than being commercially aware. I think you need context but limiting that to commercial awareness is too narrow.

Why did the recent Legal Education and Training Review (LETR) place such importance on ethics?

Julian Webb LETR
Julian Webb  is a professor at University of Warwick and led the Legal Education & Training Review’s research team

Webb: LETR proposed teaching ethics as a value system, as value of the law. It’s not about burdening students with regulation. At the academic stage we should not be teaching courses in professional conduct. The profession thinks that ethics should be a defining characteristic of a regulated profession such as law. Personally, I think a focus on ethics and values is perfectly in tune with the liberal foundation of the law degree.

Crisp: This profession demands incredibly high standard of probity and ethical behaviour and the earlier students start learning that, the better. It is absolutely crucial that the highest standards of behaviour are expected and demanded from professionals in law. It is utterly central.

Moorhead: We need to get students thinking early about what sort of role a lawyer has. They have to think about what their role is, what their obligations are, and they need to develop an independent sense of what that might mean. I think students can enter into practice without any substantial grounding in that way of thinking, but in firms, the pressure to earn money and please clients means that they do not then have the opportunity to develop an independent way of thinking about what they should really be doing.

Should the BPTC and LPC be fused with pupillage and the training contract?

Webb: This is my personal view: I would say that as an educator that if you are trying to develop vocational knowledge and skills then the closer you are to the work environment, the better. I am really in favour of integrating the vocational stage as much as we can into the practising environment.

Crisp: It does not suit a lot of firms’ practices. If your practice is dominated by transactional work then taking people out of the office can be challenging logistically. Firms prefer to have trainees ready rather than a work-in-progress. They do not know everything when they arrive but they have a very sound foundation.

Webb: I acknowledge that there are more challenges in fusing the BPTC and pupillage than in fusing the LPC and the training contract. I think it is a bigger cultural shift, and smaller chambers do not have the training infrastructure. Moreover, I am not sure if the work lends itself to a flexible approach – it would be harder to duck out of chambers for training, for example.

I think that those arguments are far less strong in the solicitors’ profession, particularly at larger firms. I think the benefits you would get in terms of making junior lawyers ready for practice greatly outweigh the challenges. One of the problems we keep hearing about with the existing courses is the extent to which trainees are having to substantially relearn things once they get into the work environment.

Richard Moorhead
Richard Moorhead is Professor of Law and Professional Ethics at UCL

Moorhead: I have always advocated that we should seek to integrate postgraduate training into the workplace, both for financial and for educational reasons. When you are really trying to train for work and understand the importance of that training then you need to have that as close as possible to the actual model.

Flood: The problem with the LPC and BPTC is that they are mechanical. So sure, let’s mix them up with pupillage and the training contract to make them more relevant. What I think is unfair on students is that they have to go through their law degree, their LPC and then a training contract before they are qualified. That to me is a big cheat. I would go the American way – you graduate from law school, and then you’re qualified. You do other stuff on top of that. Otherwise you get people stuck in the bottleneck. 

Webb: I think that fusion is also a possible way of avoiding so many people gambling money on a course with no guarantee of employment. But you have to think about the potential diversity impact of that. How do you create opportunities for people to qualify outside of existing framework? Packages of work-based learning is something that I would want to encourage. I would not want to close off opportunities.

The legal education market is becoming increasingly global. Many universities offer dual qualifications. How common will that become and how much value would you place on it? 

Webb: Thinking about the law as a global phenomenon is interesting. Some law schools are taking a more global approach. I think it gives you a very different mindset and a different set of resources to think about law in practice.

If you look at global legal practice now, in lots of ways it is already de-nationalised. So the jurisdiction you train in often does not have a massive bearing on your work. English and New York lawyers have an advantage when it comes to corporate law anyway. I don’t know if lawyers are necessarily going to require dual qualification in future.

Crisp: I think that with commercial contracts, English law will continue to be dominant. We always hear from firms that although being dual-qualified is nice to have, it is in no way central to their requirements for trainees. I think understanding other jurisdictions is very valuable, with international regulatory compliance growing like nobody’s business, not least in the EU. Some students ask me if they should dual-qualify in New York. My answer is no – not unless you intend to practice there.

Claire Weaver

Sponsor’s comment: Clare Weaver, senior marketing manager, Oxford University Press

The discussions in the article and the video all link back to the central question of the piece: whether the right things are being taught.

What comes across loud and clear from all the contributors is that legal education is multidimensional and complex, and that there is no simple answer. The one thing everyone does agree on however is that there is no such thing as a typical law degree.

Perhaps legal education has always been a topic of debate and discussion; it’s just that now more than ever questions about what the law degree should set out to do, and what the law school experience should equip students with are being asked.

Perhaps we should not just be asking whether the right things are being taught, but whether the right things are being taught well? If we ask you, the law student, we’re sure to get a range of opinions, but each of you would link your learning experience to the same thing; whether you had an inspirational law teacher.

The academics in the video are all great teachers; Odette Hutchinson was named Law Teacher of the Year in 2014 and Graham Virgo and Dawn Watkins were finalists in the same competition. They all see teaching as something much more than delivering lectures or marking essays.  They’ve inspired, engaged, and enthused their students. They may no longer be able to recall cases and recite legislation, but their past students will always remember the bigger lessons learned from having had them as their teachers.

As the legal education and legal services market changes, there is pressure on you as a law graduate to stand out, to have a fuller CV than the next candidate, to demonstrate employability skills, to display commercial awareness, and be ethically conscious.  

Good lecturers will be rising to the challenge too, going beyond a doctrinal presentation of their subject so they can add real value. That might be by being an effective careers adviser or business mentor, or maintaining and cultivating links with industry to equip you with skills and opportunities that will make you stand out beyond law school.

Don’t just think of your lecturer as a mouthpiece; learn from them, great teaching is always a two-way process. Your teachers are perhaps the greatest resource you have to draw on at law school so use them and the opportunities they provide. Learn from them as people, question them as individuals, and debate with them as critical thinkers.

Oxford University Press sponsors Law Teacher of the Year, a national award which sets out to reward and recognize the lasting influence of great law teaching.

If you have an inspirational law teacher, tell us about them in the comments section, or consider nominating them for Law Teacher of the Year.

Further reading…