It’s no secret that the legal industry is changing faster than ever before, and law schools have the difficult task of preparing graduates for life in practice without always knowing what that’s going to look like. For law schools it’s not just about keeping up, but about predicting the skills and knowledge students are going to need in five or so years’ time when they enter the profession.
Deans of law schools both old and new face the same problems. The University of NSW established its faculty of law in 1971. Professor George Williams AO is the latest to take on the position of dean, as of June 2016.
“Our challenge is a different one than the law firms in that we take students in on day one and our undergrads will emerge as lawyers about five years later, so we have to anticipate the skills they’ll need in five years,” Professor Williams says.
Swinburne University of Technology in Victoria is one of the latest universities to join the legal market, having launched a law school at the beginning of 2015.
“What I’m trying to do, and what I think every dean of every law school and indeed every educational institution really has to do, is to say ‘What are the particular skills and what’s the particular knowledge set that students need to graduate with in order to be effective in the 21st-century workplace?’,” says Professor Dan Hunter, the inaugural Swinburne Law School dean.
Theory v practice
While law degrees have traditionally been heavily based on theory, pressure is mounting for law schools to teach more practical skills in areas like technology and business, as well as soft skills such as communication and networking.
Law schools must try to achieve this fine balancing act while adhering to the regulations of the accrediting agencies.
The chair of the Council of Australian Law Deans (CALD), Professor Carolyn Evans, believes that theory will always be the basis of legal education.
Professor Evans, who is also the dean of Melbourne Law School at the University of Melbourne, says it is extremely important that students gain a strong theoretical grounding in the legal fundamentals.
“Law school is the only time when that’s possible. It’s not something that can be easily done by employers or done on the job, so I think it’s really critical that that is a core part of the curriculum,” she says.
“That said, we’ve never had more practical skills taught in law school across Australia than we do at the moment, and I think we’re always trying to strike that right balance between making sure students know enough of the substantive law to be useful lawyers, but also can develop the practical skills they need to be able to give clients what they want.”
Professor Evans says it’s almost impossible to strike a balance that will please everybody, and that all law schools can do is think about how to provide the best possible balance in their situation.
Professor Lesley Hitchens, who is the dean of law at the University of Technology Sydney, agrees wholeheartedly with Professor Evans’ position, saying there are a number of principles that need to be remembered when attempting to strike the best combination of theoretical and practical education.
“First of all in a university it is about the academic; the law degree is about the academic component of the requirements for practice, and I think we should never lose sight of that,” she says.
While acknowledging that lawyers need to develop new skills as the profession changes, Professor Hitchens believes it is difficult to fit in the teaching of those skills, and questions whether it is the universities’ responsibility.
“There can be a tendency for the law firms to say, ‘Oh, lawyers don’t have X, Y and Z skills’,” she says.
“We’re providing the legal education, then there’s the vocational component after that where they do their practical legal training, but it is a lifelong process.
“We are not producing the end product when we produce a legal graduate and I think it does have to be seen as a continuum.”
The newly established Swinburne Law School has taken a much more practical approach than its older counterparts. However, Professor Hunter says the regulators and accrediting agencies are holding universities back from being future-focused.
“Legal education is incredibly conservative, and it’s incredibly conservative because the regulators and the accrediting agencies have a model of how they want lawyers to look,” he says. “What they do is they say, ‘We’ll give your law school a right to graduate lawyers if you conform with this particular set of requirements’.”
According to Professor Hunter, those requirements are very prescriptive of the Priestley 11 and are focused on replicating the offerings that are already in the marketplace. “In order for me to get accreditation, it’s a lot easier if I look like Melbourne University, which has been around so many years, than if I look like something brand new that’s completely weird that they don’t recognise,” Professor Hunter says.
“What it means is that you end up with cookie-cutter institutions.”
Swinburne has managed to push the boundaries somewhat – it is partnering with Graduate Diploma of Legal Practice (GDLP) provider Leo Cussen Centre for Law to integrate PLT units into the university’s LLB, fast-tracking graduates into practice as of next year.
This emphasis on practical experience is welcomed by law students, according to Australian Law Students’ Association (ALSA) president Paul Melican.
“Absolutely, the introduction of more practical elements is a good thing because when you speak to HR representatives they’re always talking about the employability of graduates and that they need to understand more practical aspects of the law,” Mr Melican says.
“Also, from the student perspective, it gives the students greater insight into what the roles will actually be like when they finish, and I think students really enjoy [practical training].”
Without diminishing the importance of the Priestley 11 and traditional skills such as legal reasoning, analysis, research and writing, Mr Melican believes we can no longer ignore the other vital elements of contemporary legal practice, such as interpersonal skills and reflective lawyering.
“We’ve got to have at least half the course being very traditional – essay-based and exam-based – but having those three, four or five subjects in a degree where you can do a client interview or do some negotiation brings so much more to the degree, it makes it interesting and fun,” he says.
Mr Melican says the practical legal training providers are the most innovative in terms of teaching the skills necessary to practice in today’s market.
“I think the PLT providers are really stepping up to the plate and are offering a lot more options and flexibility, which is great,” he says.
Law grad glut?
There are many people in the profession willing to stick up their hands and claim that there is a gross oversupply of law graduates in Australia. However, there are some that believe there is a lack of substantial evidence to support or disprove this claim.
“I think there is a sense [that there is an oversupply], and we read a lot of media or legal media commentary about this, but the data is not actually very clear,” Professor Hitchens explains.
“We’re not in a position to make a clear judgment about this because we are making a judgment at the moment on a fair degree of anecdotal evidence or how we feel about this, without really having concrete evidence about graduates and their career prospects.”
Professor Hitchens emphasises that the knowledge and skills taught in legal education are highly transferable, and that many law graduates don’t intend to pursue a career in law.
“Most of us would be providing legal education in law schools, obviously in part with a view to the fact that our students will pursue a career in practice, but also we’re very aware that students may use their legal education to pursue careers in other fields.”
She points to the Australian Graduate Survey 2015 as proof that, overall, law graduates are successful in finding employment, whether as lawyers or not.
Indeed, the survey shows 74.1 per cent of law graduates were in full-time employment within four months of completing their degrees, compared with 68.8 per cent of graduates overall.
“If you look at the Graduate Destination Survey, law is still one of the best-performing graduate outcomes for employment,” Professor Hitchens notes.
For this reason, she doesn’t see the need to curb or cap the number of law students in Australia.
“The profession has not, as perhaps some other professions have, said ‘We will only allow X number of graduates because not everyone’s going to practice’,” she says.
“I think you can’t later say, ‘Well there are too many and they can’t have that opportunity’. We can’t cut off those opportunities for other people just because we all got through the gate, as it were.”
Professor Hunter supports Professor Hitchens’ thoughts, noting that Australia doesn’t have a “planned economy”.
“I think a lot of the language around law grads is predicated on the idea that we’re sort of doing this workforce planning, like we’re in Singapore where there are 500 jobs in this year coming up in the legal profession [for example], so therefore we’ll have 500 places available in law schools,” he says.
“But we don’t do that, we don’t have a planned economy like that.”
Overall, Professor Hunter is unconcerned about the number of law graduates and feels that students are well informed of the reality of the legal market.
“Everyone seems to be beating their chests and saying ‘Oh it’s a terrible thing’, and it would be a terrible thing if every law grad wanted to go into the profession, or alternatively was badly advised that they could get into the profession, but I think that those days are over.
“In fact, I don’t think they ever existed,” he says. “So the idea that somehow it’s a crisis that there’s all these law grads, it’s b******t actually.”
Professor Williams, on the other hand, isn’t quite so quick to defend the number of students graduating with law degrees as totally acceptable.
“I think we have a real expectation problem in this area, and that is that the number of law students who enter study with the expectation and hope of getting a well-paying legal job is not matched by the jobs available, and it means that too many students are likely to be disappointed about the job opportunities involved,” Professor Williams says.
“That’s not to say they won’t get good jobs, in fact the record is that a law degree is an excellent preparation for a range of careers, but it’s true that many are actually seeking a legal career and I think that universities need to do more to educate students about the job options available at the end.
“The problem lies in the mismatch of expectation with reality and I think we can only sustain the number of students if we do a better job at helping them understand the reality of the job market.”
Linked to the expectation problem to which Professor Williams alludes is the rising number of universities offering law degrees across the country.
“There is also a problem in Australia in terms of the university sector being geared towards producing enormous numbers of legal graduates because there are particular drivers and incentives for the universities to do so,” he says.
The attractive federal government funding model for law schools can override the important questions universities should be asking when considering launching a law faculty, according to Professor Williams, such as “‘Do we need more legal graduates?’, ‘Can we supply them jobs?’ and ‘[What are] the expectations?’”.
“Law is prestigious but cheap, with high fees attached at the government level, and that’s a drive sometimes of perverse and unfortunate behaviours,” he says.
“This can drive university outcomes that may not be in the national interests, or may not be in the interests of the students themselves, and I think that explains the proliferation that we’ve seen.”
Currently there are 38 universities in Australia with law schools, as well as two non-university providers that offer accredited law degrees, according to the CALD.
As chair of the CALD, Professor Evans points out that while Australia does have a large number of law schools, they cater to different types of students.
“We do have a particularly high number of law schools in Australia, but they also do serve different needs and different communities. So again there are real benefits that come with a diversity of law schools and there’s probably room then for reasonable debate about exactly how many is the optimal number,” she explains. “I don’t think we’ll be seeing many more because there just aren’t that many more universities where it would be possible.”
Federation University Australia is the only one of the 39 member institutions of Universities Australia that does not yet contain a law school.
Mr Melican, who is currently studying a Juris Doctor at RMIT, is pleased that Australia has a variety of offerings but shares concerns about the quality of all courses.
“I think legal education has gone through a period of change over the last five to 10 years and the rate of change has been increasing with the number of additional courses that are being offered,” he says.
While applauding the law schools that have entered the market recently and have succeeded in offering students something different, Mr Melican says there are some courses that are falling short.
“There’s probably a few online JD offerings, in particular, that there are some concerns around quality from various people doing those degrees, or often from the face-to-face students in comparing what their course is with what the online offering is,” he says.
“Also there’s a lack of support for online offerings. It might be a good offering in terms of the lectures that are available online, but then there’s nowhere really to go for that extra support that people might need.”
Professor Hunter adds that if law schools don’t offer quality courses, they simply won’t attract students.
“If those university law schools don’t deliver good outcomes for students, then eventually the students won’t go there. That’s how the market works,” he says.
In an environment where all universities are hungry for enrolments, they are looking to open new programs that will attract students. However, Professor Hunter points out that simply opening a law school does not guarantee that students will be interested.
“There’s an assumption that all you’ve got to do is open a law school, hang out a sign that says ‘law school open for business’ and thousands of students will flock to you, but they don’t,” he says.
“So you’re competing for people who have already decided that they’re going to do law, and then it’s just competition amongst a range of players in that space, where you hope that you are providing a better option for the same price as competitors. That’s the nature of a competitive marketplace, it’s called capitalism.”
Setting the bar
With large numbers of students and law schools, another question worth considering is how high the bar should be when it comes to admissions.
Law degrees have notoriously high ATAR requirements, but there is a growing emphasis on the need to assess potential students on a number of qualities beyond their rank.
Professor Hitchens explains that the ATAR is usually set high because it’s one way to cull the numbers, but that it’s important to consider alternatives to ensure diversity.
“A lot of people want to do law and that does tend to mean that the ATAR sets the limits fairly high,” she says.
“To my mind what’s important is diversity and inclusion – that we’re trying to provide opportunities to those who might not come through the normal path or might not be at a school that’s able to have a strong academic focus, that we provide opportunities for students to come through.”
While Mr Melican agrees that opening up the entry requirements to ensure diversity is a positive step, he says it’s even more vital that students are aware of what’s required to complete a law degree.
“Whilst we should be trying to open the opportunity up to as many people as possible, there is a concern that if the entry requirements are set too low, that too many people that are not capable of finishing the degree will start the degree and they’ll end up with a large HECS debt and nothing really to show for it,” he says.
“That’s more where I would be concerned: making sure that potential students are ready and aware of the commitment that is going to be required and making sure that they’re capable of it.”
UNSW Law recently made the bold move of introducing a Law Admission Test (LAT) for people wanting to study a law degree from 2017 onwards. Professor Williams says the university introduced the LAT for a number of reasons.
“One is that we do not believe that the ATAR is always the best predictor of who will make a great lawyer. It privileges academic excellence, which clearly is one important criterion, but we’re concerned that using that as the key criterion alone, we’re effectively culling people who may not achieve that for good reasons,” he says.
“Unfortunately academic excellence often relates to which school you’ve been able to go to, how well you’ve been prepared for the test, and some people may not have had the same educational opportunities but could be great lawyers.”
The LAT will assess participants on a range of skills and their results will be used in conjunction with their ATARs to determine whether they are accepted.
“It will mean that we will take students in on a lower ATAR who would not otherwise have got in, if they can demonstrate the skills on this test. Conversely, some students who have done brilliantly on the ATAR won’t get a place with us if they don’t do as well on this test,” Professor Williams explains.
“What we’re hoping is not just to get greater diversity and a greater and broader profile of people who can be great lawyers, but also people who might display other strengths – and that might be creative thinking, lateral problem solving, even resilience qualities that increasingly will be needed by legal graduates.”
What’s to come
Universities must be future-focused if they want to produce lawyers that will succeed in the years to come, and there are many ways law schools could change to ensure this. Professor Hunter thinks that law schools should be given greater curriculum flexibility, in conjunction with the introduction of exit testing.
“We should have a lot more flexibility in terms of the way that the institutions deliver legal instruction, but then have a lot more emphasis upon ensuring the graduates of those institutions are actually able to do these things,” he says.
“If we had exit testing then every institution should be given a little bit more freedom and then we would actually look at whether or not a particular person graduating from an institution can do the job effectively.”
Professor Hitchens would also like to see the accrediting agencies come up to speed and allow law schools to start exploring alternatives in their curriculums.
“Admission authorities tend to take a rather conservative view and think it’s simply about subjects, or areas of learning if you like, but I think it would be good [if] we could have a broader debate about these issues, about what it is we should really be doing in that academic component of the law schools,” she says.
“The firms and so forth often have their view, but they’re often not that well engaged with the admission authorities either. So without getting me into terrible hot water, that, I think, is something that could be addressed.”
Professor Evans hopes that law firms will work together with law schools to achieve mutually beneficial outcomes.
“I think it can be quite easy for some people to simply criticise legal education and have a wish list of everything that could be included in a curriculum without really engaging what the trade-offs might be, such as what would you lose from the curriculum, how much more would it cost, all of those issues,” she says.
“I’d like to see relationships between law schools and law firms be more like a partnership or a client relationship, where we’re both really trying to see what we can bring of value to the table.”
Meanwhile, Mr Melican proposes a system of two law degrees: one for those pursuing a career in law and one for those hoping to use the skills in other careers.
“There’s a possibility of having a general law degree, something that was combined, perhaps, with some business skills to give you something more similar to an MBA, and then still having a specialised law degree that we all do at the moment that leads to being able to act as an Australian legal professional,” he says.
While the debate continues and it’s likely that there will always be room for improvement, Professor Evans says that in a global context, Australian legal education is high on the scale.
“There’s actually some very, very fine legal education going on in Australia at the moment and you can see that when you travel to London or Hong Kong or New York, where people talk about how well-educated and well-trained Australian lawyers are compared to some of the best students from some of the other similar countries from around the world,” she says.
“I think we should beware of being unduly pessimistic about legal education. It’s always good to think about how we can and should improve and do things better, but the evidence at the moment is that on a global scale our students actually get a very good-quality legal education.”