Podcast: Is law school teaching enough critical thinking?
In this week's The Lawyers Weekly Show, we take a look at the typical law school education offered by Australian universities and its perceived pitfalls in the eyes of a recent graduate.
Our host, Lawyers Weekly journalist Lara Bullock, is joined by Sydney University law graduate Joshua Krook, who recently published a book titled Legal Education, Privatization and the Market: The Decline of Justice, Fairness and Morality in Australian Law Schools.
Mr Krook discusses the rise of neoliberalism in Australia and how that has led to the privatisation of universities and an increasing focus on providing skills-based education.
He also criticises the typical ‘problem question’ assignment method and suggests that students should be encouraged to look beyond the application of the law to the effects it has on real people, and also to consider where there may be a need for law reform.
Law schools must review their approach to educating Australia's future lawyers sooner rather than later, according to Mr Krook, to prevent the production of detached and uncritical graduates.
Intro: Welcome to the Lawyer's Weekly Podcast for an in-depth look at the issues facing the legal profession. This is your host, Lara Bullock.
Lara Bullock: Welcome to the Lawyer's Weekly Show. I'm your host Lara Bullock. Today we have law graduate, Josh Krook, with us to talk about law school education. Welcome Josh.
Josh Krook: Hi, nice to be here.
Lara Bullock: Josh, you recently wrote a book titled "Legal Education, Privatization and the Market: The Decline of Justice, Fairness, and Morality in Australian Law Schools". Tell us a little bit more about how the book came about.
Josh Krook: Last year I graduated from Sydney University Law School. About in the middle of my studies, but really right from the beginning, I started having questions about the kind of education I was being given. It seemed liked the only thing we were being taught to do was to learn what the law was and apply it in new situations but we were never asked to justify the law or question it or critically engage with it in any sustained way. That's kind of where the book about.
I was frustrated in this way and I thought ... I was looking at different models of legal education and how it could be improved. I was looking at what they were doing over at Harvard, shifting away from this focus on problem questions, which I'm sure we'll get into and moving towards more of a focus on justice, fairness and morality as the things that underpin law and the things that create law to begin with.
Lara Bullock: Give me a quick summary of what the book covers.
Josh Krook: There are three main parts to the book, I suppose. The first part is an overview of how Australian legal education has changed over time. Historically several governments have cut funding to the universities broadly. This has resulted in universities focusing more on skills acquisition, on graduate attributes, on all of these things that have become buzz words basically at the universities.
Legal education has gone with that shift. It has changed from a focus on critically engaging with the law to producing the right style of graduates that could best serve the market. Which is different to the founding principles of universities which is to be about knowledge and knowledge accumulation and generally learning for learning's sake. There's been this big shift away from that as a bit old fashioned almost.
Lara Bullock: They're just more churning out graduates on a conveyor belt, all the same?
Josh Krook: Yeah, yeah, with the same skills. It's a focus on skills as opposed to knowledge.
Lara Bullock: Okay, what does a typical law school education look like these days? What exactly are the law students being taught in their degrees?
Josh Krook: One of the main things that you're taught, and I think this goes back to what was founded at Harvard back in the day. In the late 1800's there was a Professor called Christopher Langdell. He came up with this idea of the problem question format where you learn what the law is and you're given a new hypothetical situation and you have to apply the current to that new hypothetical situation. That's the bulk of what legal education in Australia is about today. That model went around the entire world, came to Australia in the late 1800's as well, and it's been here ever since. It basically teaches you that essential skill of learning the law and then applying it. It's really that simple.
The bulk of legal education in Australia is focused on the priestly 11 subjects which are the core admission requirements that all law schools have to teach in Australia to create qualified lawyers. Those subjects are primarily black letter law which is, again, this strict applying of legal principles to hypothetical situations and it doesn't really go beyond that. It doesn't really ever allow you to criticize the law or suggest law reform or do anything of that nature. Legal education today is more about learning that basic skill.
Lara Bullock: By focusing on this problem question method of assignments, does that create an unrealistic expectation of what the real world of law is like?
Josh Krook: I think it does. I think it does in a number of ways. I think the main way is that you're dealing with hypothetical situations. You aren't actually dealing with real cases in real life. I think a lot of academics and a lot of law schools have really criticized this and said that there should be a focus on clinical legal education which is basically like having a legal clinic at the law school where people can engage with real clients and see real situations.
I think the biggest problem with problem question assessments and that model of thinking is that hypothetical questions don't actually show you the ramification of your answer, if that makes sense. You answer a question – and this is the biggest flaw at the moment – you answer a question but you don't see what the result of your answer is. You could have a property law question where someone gains a house and someone loses a house but you don't actually see the real life ramifications of that decision.
Lara Bullock: You don't see the effects that it has on the real people that are the clients you'll actually be dealing with as a lawyer?
Josh Krook: Right. I think this creates a disconnect when law students graduate and go into the legal profession, that they can't actually relate to clients on a one-on-one basis in an authentic way because they've dealt largely with hypotheticals and they don't really anticipate, for one thing, the psychological stress that a lot of law cases give to people in the real world and the actual pragmatic effects of law once it's enacted. It goes beyond just whether the law is right or wrong but it also goes to the practical implications of enforcing it.
Lara Bullock: Going back to something you mentioned earlier about law students needing to learn how to be more critical and actually question the law itself, why is that important?
Josh Krook: There are a number of foundational principles that law schools should be based on. One of the main ones in Australia, I think, is that we're part of a democracy. We're an open society. Law students are really going to be some of the only people in society that have that intimate knowledge and familiarity with the law and how it works. Having law students graduate and then be able to criticize the law means that, for one thing, the government won't be able to take away people's rights very easily. They won't be able to get away with some sort of legislation that doesn't really have a positive effect in society because there will be this whole class of law student graduates who'll be able to criticize the law and understand the law.
I think beyond that, I think that fundamental to legal education should be the idea that you get to understand where the law comes from. The law is not an abstract concept. If you learn it in this hypothetical way, you learn it as an abstract concept. It's something that just exists. You take it and you apply it. If you see being a lawyer like that, I think that's a very negative process. One thing, you're going to be surprised when the government of the day changes the law because that's never accounted for in the curriculum.
I found it quite fascinating at law school when changes in the law came about there was no way for law school to deal with those changes. It was almost outside the scope of legal education to imagine that the law would change.
Lara Bullock: The curriculum is so narrow focused that as soon as a change happens, they don't really know what to do with it?
Josh Krook: It's almost a panic. You can't really adapt to those changes because you aren't looking at the law as a fluid system that changes over time, that comes from somewhere and that is basically not static, it's constantly changing. That's the reason we elect politicians, to change the law. That's one of the inherent problems.
Lara Bullock: Do you think there should be more of a focus on statute law at law schools?
Josh Krook: I think that's definitely the case. What Harvard has done since Christopher Langdell, since the problem question format came about, they've actually in recent years moved away from problem questions. They've moved towards a focus on statute law. They've moved towards a focus on law reform and critical analysis of the law. They've said, a lot of the tutors and lecturers at Harvard have said that case law method is too narrow in its focus. The law today is primarily based on statute so focusing predominantly on case law doesn't make much sense.
I think when you do focus on the statute, you do get more of an insight into how law comes about, you get an insight into the political process, you get an insight into Australia's government system and you really understand that law is a dynamic process because statute law is constantly changing.
Lara Bullock: Looking to the future, do you think that Australian law schools should be taking a lead from Harvard and also changing their focus away from case law and more towards statute law?
Josh Krook: I think there are a couple of things that can be done. I don't think they necessarily have to do that. I think there needs to be more of a focus on statute law, definitely, because statute law is so much more relevant today than it was in the late 1800's. Law is famously slow at adapting to change.
Lara Bullock: Definitely.
Josh Krook: Law schools are no different. Adapting to the statute law as a new reality is a good start. I think problem questions can be used if students are given the opportunity to go beyond them. One thing that I pose in my book is the idea that after you answer a problem question you're asked what are the practical effects of your answer. So that students actually engage with, okay, I've answered this, I've applied the law, now what's that law going to do? Then, if that's a negative effect whether that law should be changed. Those, I think, are two more questions that could almost be added at the end that get you more of a critical understanding of law and go beyond the blind application of law without thinking about it.
Lara Bullock: Just encouraging the students to look deeper and actually look at the ramifications of what their decisions can be?
Josh Krook: Right. I think that gets to a fundamental question of whether law schools should allow students the possibility of evaluating whether laws are good or bad. At the moment they don't. You go through law school and you never get an opportunity to say, except in electives maybe in your final year once you've already been taught everything, that a law is a good thing or a bad thing. In terms of fairly objective metrics, of whether it encourages justice or fairness or equality or any of these metrics. Whether law school should be based on that style of education.
Lara Bullock: That's really interesting Josh. How else do you think law schools should be looking to change their curriculum in the future?
Josh Krook: Well, I think one really fascinating quote that I read from Duncan Kennedy who wrote about this in the 80's, was this idea that the actual intellectual content of the law seems to consist of learning the rules, what they are and how they should be enforced while rooting for the occasional judge who's willing to make them more humane. I think it's really interesting in law school today, in Australia this is particularly the case, there's a celebrity kind of cultish following to Justice Kirby, as you may know.
Lara Bullock: Yes.
Josh Krook: He's very well celebrated in law school. I think that students need to go beyond just the celebration of judges who are willing to criticize the law, to themselves criticize the law. I think that's the shift that needs to take place. From celebrating from a distance the people who are willing to do it, to students actively engaging in that process. Of looking at what it is, critically engaging with whether it's good or bad, and actually coming to some solutions on law reform.
Lara Bullock: Definitely, so making those decisions on their own and not just following others who have done so before them?
Josh Krook: Right. I think it's good to be inspired but I think there's a further step that could be taken.
Lara Bullock: Definitely. Obviously law schools are facing some major challenges in figuring out how to best educate the lawyers of the future. It will be really interesting to see how things play out. Thanks for coming in today, Josh, really appreciate it.
Josh Krook: Thanks for having me.
Lara Bullock: Thank you all for listening to the Lawyer's Weekly Show.