That education in LE/PR in Australian law schools is increasing in importance was evident. And the Fellowship was timely – in some ways, the schedule could not have been better. To give but two examples: as noted above, just before the Victorian workshop was held, the Faculty of Law at Monash University was awarded a Monash University grant to embed the teaching of LE/PR into the undergraduate law curriculum. A number of other law schools were considering introducing, or increasing the content and coverage of subjects on, LE/PR during the term of the Fellowship.
Despite these positive indications, the long-term future of teaching and learning in LE/PR in Australian law schools may prove disappointing for reasons that I canvass below.
What is it (Epistemology)? In What Direction Should LE/PR Education Go?
The inclusion of LE/PR into law curricula in Australia is of relatively recent origin. In 1999/2000, not all Australian law schools taught LE/PR. Even though the definition of what LE/PR entails was left as broad as possible so that its scope could be discussed in the workshops, participants of the workshops reached no consensus about what LE/PR education is or should be. As a result, without a consensus of definition, it is difficult to determine exactly what is happening, what is being offered, and what directions education in Legal Ethics and Professional Responsibility should take.
Some Australian law schools that do offer courses in the subject regard LE/PR as “yet another law subject” – one solely concerned with rules, codes of conduct, and regulations. Not all see it as providing an essential underpinning for the study of law generally.
Since academic staff at some Australian law schools see LE/PR education in terms of a positivistic epistemology, learning in the affective dimension and changes in student behaviour are not likely to occur, thus limiting the potential benefits that education in LE/PR can bring.
The number of individual teachers and institutions openly committed in thought and in action to the introduction and development of LE/PR in Australian law schools is still relatively small.
Not many individuals actually teach LE/PR in their law schools so the pool of possible staff resources is small, providing challenges to heads of schools and deans when the LE/PR teacher takes leave, changes employment, retires, or resigns.
Inadequate Commitment and Enthusiasm?
That the impetus for change has been external in some cases rather than internal appears to have affected curriculum and teaching innovations in Australia. By way of contrast, change in law curricula in LE/PR in the USA appears to have been driven by the actions of individual teachers working in prestigious institutions such as Deborah Rhode, David Luban, William Simon, and Jim Moliterno to name just four. In Australia, it appears that many academics have been reactive rather than proactive in introducing LE/PR into the curricula. In short, academia in Australia has not been a leader in teaching/learning in this area of law.9
Some Australian law schools that have actually introduced the subject into the law curriculum appear to be relatively uncommitted to its development, success, and continuation.
Not all law schools offer as much LE/PR as some law teachers think appropriate. Those who have offered LE/PR for some time argued strongly in the workshops for an increase in contact-hours and in content, although they saw such changes as unlikely, given other priorities and financial constraints.
The majority of law teachers who attended workshops appeared to advocate the adoption of the pervasive approach in the teaching of LE/PR, although no law school has adopted this approach with any great success. There was little time left in the workshops to consider how to introduce this curricular change, although there was considerable interest in doing so. Only one workshop addressed strategies for effectuating and managing change, although this issue was of particular interest to American scholars.
The teaching/learning innovations that have been initiated in the USA and have been written about so convincingly have not been adopted in Australia for the most part. Rather, as noted above, some Australian institutions have included LE/PR in the LLB curriculum as if it were simply another law subject, one whose teaching and assessment was unproblematic.
Even though many law teachers who promote LE/PR as a subject currently are senior, tenured members of staff, their influence on the development of LE/PR education appears to be less than one might have expected from the positions that they hold. The immediate need of some of these individuals, as expressed in the workshops, is in keeping their institutions/law schools afloat, rather than increasing curriculum offerings and enhancing teaching/learning initiatives.
Overall, of long-term concern is the reality that insufficient attention appears to have been given to the continuity or further development of LE/PR in Australian law schools.10 Some teachers reported that they have no time to think about arrangements to enable the continuation of the teaching of LE/PR. Few appeared to have considered problems of the “ghettoisation” of LE/PR teaching that has plagued some curriculum and staff development initiatives in a few American law schools. In Australia, the attention is on the “here and now,” with little thought given to the management and the impact of change generally, and to LE/PR education particularly.
Although many academics espouse the importance of LE/PR education as a laudable teaching/learning outcome, there is a noticeable gap between “talk” and “action.” In at least three law schools surveyed, there appears to be a chasm between what the Deans/Heads of School report is being done in LE/PR and what the teachers who actually teach LE/PR say is actually being attempted or achieved. In one case, reports of what was being achieved did not reflect what was happening in practice. One law school was reported to have adopted the pervasive method of teaching of LE/PR, yet there was no concrete evidence to support the statement. One law school Dean reported initiatives in the LE/PR arena that appeared to surprise the staff of that law school who attended the workshop. A few Deans/Heads of School seemed to be unaware of what subjects are actually being offered in their law schools.