Clive Walker, LEGAL EDUCATION IN ENGLAND AND WALES, 72 Oregon Law Review 943 (1993)

The last official survey of university law teaching in England and Wales was the Ormrod Report in 1971. The Report discovered that legal education had been transformed since 1945 from a rather peripheral, professionally-oriented area of university life into an important and popular academic discipline. The changes since 1971 have been equally far- reaching.

One factor has been the expansion of the law student intake which has continued apace; the figure of 5000 recorded in 1971 has more than doubled. The increase in admissions has been influenced by the government's policy decision to increase the percentage of eighteen year-olds entering higher education from about twenty-five percent in 1989 to about thirty-three percent in 2000, resulting in an overall fifty-eight percent increase in student numbers. In order to implement this policy, universities will have to encourage applicants who are older and/or less qualified.

The expansion is not confined to the thirty-four university law faculties. Perhaps the most growth in recent years has occurred in the polytechnic sector of higher education. By the beginning of this decade there were almost as many law faculties and students at polytechnics as there were at universities. Polytechnics were mainly created in the late 1960s and 1970s by amalgamations of local technical colleges. They were granted an autonomous status similar to universities by the Education Reform Act of 1988 and were then transformed into full fledged universities by the Further and Higher Education Act of 1992. These "new universities" differ in conception from universities in that they align closer to business and industry and place less emphasis on original research. However, these characteristics, which produced what was termed a "binary divide" in higher education, have long been blurred in reality, hence the formal abolition of the distinction in 1992.

The increased number of law schools has encouraged not only increased student intakes but also diversity in courses and course content. As for the latter, the demands of the legal professional regulators (the Law Society for solicitors and the Bar Council for barristers) substantially shape law school syllabi. Both bodies require undergraduate courses in six "core" subjects (constitutional law, contract, torts, land law, trusts, and criminal law) in order for students to qualify for exemptions from later professional examinations. However, these bodies have largely resisted calls to increase their requirements, and law teachers have used this flexibility to increase the range of optional specialist subjects available.

Regarding diversity in degree schemes, there is a great interest in enticing to law school not only undergraduate students, but postgraduates and practising lawyers. Postgraduate study in law at universities consists of either research thesis only or course work plus a dissertation. The number of pure research students, often motivated by the prospect of an academic career, is increasing but remains relatively low. Rather, more students enroll for postgraduate courses; some are gaining their first taste of law while others are adding further specialities. Thus, many law faculties now offer mastership courses and a wide variety of specialist short programmes. However, the most common form of postgraduate legal study (undertaken by seventy-five percent of graduates) is the professional skills-based courses and examinations set by the Law Society (for solicitors) and Bar Council (for barristers) and taught by the Colleges of Law (for solicitor), the Bar School (for barristers), a number of "new" universities, and a few universities. After obtaining these qualifications, lawyers undergo an apprentice lasting two years as trainee solicitors or one year as pupil barristers. Some university law schools will soon enter the field of teaching the solicitor's year-long postgraduate courses, a market which has hitherto been confined to the Law Society, affiliated Colleges of Law, and a handful of "new" universities.

A further development is that many universities are in the process of converting to modular and semester based courses, following the American model. One of the principal advantages this change will achieve is that it will open up law courses in universities to non-law undergraduates.

On a less positive note, the chronic state underfunding of universities over the past decade and the need to chose new markets may have a concurrent impact upon course development. In order to compensate for the lack of public money, university law faculties have turned especially to the lucrative overseas student market and to charitable donations from practitioners. Both tactics have proved worthwhile, but problematic. Recruiting foreign students has tended to produce staff instability because they pay only for fixed- term, rather than permanent, staff who are unlikely to contribute significantly to course development or research. Likewise, outside funding tends to emanate from rich corporate/commercial lawyers who expect the funded post- holder to specialise in those areas, thereby stunting the development of other areas of law. Clearly, it can no longer be maintained, as it was in 1950, that " t he subject of legal education is one which has aroused singularly little interest in England in recent years." However, it might now be considered what the impact has been on teaching methods.

The traditional pattern of law teaching in universities relies heavily upon a mixture of lectures and tutorials. Lectures (commonly two per week per subject) serve a number of purposes. The first is to convey a body of knowledge to a large audience usually numbering between 30 and 250.

No doubt, students could derive much of the information delivered in the lecture from published sources. It follows that lectures are often not compulsory. If the student chooses by design or default to take the hard road to enlightenment, then so be it. However, it is quicker and less arduous for the listener to leave that task to the lecturer, who can thereby provide a sound and interesting basic framework for the subject. In addition, the lecturer can provide a sensible and structured guide (by way of written handouts) to enable the student to later research the subject to a more advanced level than was possible in the lecture hour.

In any event, a good lecture will do more than paraphrase a textbook. It can provide a helpful updating service on the latest cases and developments. In some cases, the lecturer may be a leading researcher in the subject and therefore able to impart expert insights and information not yet available in the books. Most lecturing, particularly in the major courses, is staffed by experienced faculty, although even quite junior faculty members can expect to undertake some classes. The lecturer may choose to put forward challenging views or criticisms which stimulate more debate than the private study of books is likely to achieve. Nevertheless, the audience is usually passive. The weight of numbers and the very size of lecture venues make it difficult to engage in any dialogue, though many lecturers will at least invite questions at natural pauses in the presentation, and a more relaxed atmosphere often de facto prevails in lecture classes of smaller sizes.

Having compiled a written commentary on the law through lectures and lecture-directed research, the student is then expected to delve further into selected areas of the syllabus by way of "tutorials" or "seminars." These terms are often used interchangeably, though seminars often are conducted with larger groups. In some universities, tutorials are held with individual students. The purpose of these forms of teaching (usually one hourly session per subject per fortnight) is at least two-fold.

First, it requires students to expand their knowledge. The student is expected to derive a sophisticated understanding of particular legal areas via a written programme of directed reading and questions produced by the tutor. Second, unlike the lecture, the tutorial is meant to be interactive. In a good tutorial, the student will be prepared to discuss the area of law being addressed and to ask questions where areas of doubt persist.

Tutorials are especially important for newly recruited students, who are likely to be less able to study independently or to volunteer confidently that they are experiencing difficulties. In this way, an important product of tutorials is the monitoring of the progress of students. Attendance is, therefore, compulsory. It follows that subjects taught in later years, especially if the lecture group is not large, may not always carry a full tutorial programme matching the foregoing paradigm.

The traditional combination of lectures and tutorials still forms the essence of university law teaching today. However, some innovations have been made and, because of the pressures described earlier, may flourish.

One such advancement has been the introduction of the case method classes so beloved in American law schools, often through the initiative of English academics who have spent time in that environment. Case classes are beneficial in that they demand a greater degree of independent research, alacrity of thought and oral deftness than lecture classes.

Nevertheless, the case method has not become predominant in England. It rarely features in more than one or two subjects (out of four or five) per year and may be altogether absent from some faculties. One factor is simply tradition, but sounder explanations include the desire not to unduly increase students' workload, the impossibility of finding the extra staff to handle groups of manageable size, and the absence of suitably meaty cases to discuss in many areas of English law. For example, in the absence of constitutional review in English law, large areas of the constitution are determined by conventional practices or by statute, and court cases tend to deal with narrow, technical points. No doubt, broad hypothetical problems could be presented, but they are seen as the appropriate focus of tutorials.

Some of the desirable attributes of case classes, such as the encouragement of research skills, have alternatively been pursued by the development of project work as an element of the law degree. Projects may take the form of dissertations which replace one of the four or five taught courses per annum, or alternatively, may consist of presentations in class. Active learning in task-based groups offers another worthwhile approach, as it provides training in collaboration, interpersonal relations, leadership, and management skills. More generally, the pressure on staff resources described earlier has provided an impetus toward the grading of students' term-time essays and contributions in class, activities previously viewed as simply training for examinations.

Another innovative feature in the teaching of law in England has been the employment of distance learning techniques. To date, these have mainly featured in courses for external, part-time undergraduates and postgraduates. Such students may be presented initially with extensive work sheets and guidance notes, and their endeavours are supplemented by study evenings or weekends.

The pressures on universities described earlier are likely to accentuate the drift away from lectures and tutorials. For example, a larger and more diverse student intake creates difficulty offering both small group attention via the tutorial as well as standardised teaching via a lecture. Consequently, the next decade of law teaching in England will likely reflect two trends.

First, there will be an increasing emphasis on the teaching and assessment of lawyerly skills rather than lawyerly knowledge. The Law Society has already adopted this objective in its recently redesigned professional course for graduates, which will emphasise such talents as advocacy, negotiation, interviewing, and the drafting of documents. Universities will eventually want their own courses to reflect this emphasis. Not only will it give their students a better chance of passing their later professional examinations, but it will also reflect the sound warning from the Ormrod Report in 1971:

[A]ttempts should not be made to give the student a comprehensive coverage of all the law which he may require in practice, but rather to provide him with the equipment which he will need and can use throughout his professional life to ascertain the law as and when he wants it.

The second predicted trend is an increase in student-directed learning. Instilling a rudimentary knowledge of legal retrieval systems such as LEXIS is already commonplace, and the next step would be to make this type of technology more widely available and to introduce forms of computer-assisted learning packages and video programmes. Little progress has yet been achieved, but considerable interest in the possibilities exists among law academics, many of whom are now familiar with personal computing.

Although paradoxical, the strengths of English university law schools have also ultimately proved to be their weaknesses. Thus, their strengths have been the high quality of staff and students, as well as their independence from undue pressure from either government or the legal profession. Yet, these characteristics have equally excited charges of elitism and remoteness. Accordingly, the challenge now facing university law teachers is to cater effectively to all the potential customers of legal education, including articulate and highly motivated undergraduates and postgraduates, jaded professionals, and inquisitive citizens.

This task can only be achieved by fundamental changes both in outlook and structure. As for outlook, there has traditionally persisted a sharp divide between the liberal/contextual and vocational/technical approaches to legal studies, with the older universities tending to favour the former over the latter. Representative of this narrow view is the following statement:

The position of university law departments is not merely a matter of geography. It should be an indication of the intellectual concerns of its members. A university law department is as much, and in the same way, a part of the university as it is a department of English or economics. Those working in such departments are not, whatever their qualifications, lawyers: they are legal academics.

Even if this demarcation is breaking down because of the desire to secure the best of both worlds, as now seems to be happening in universities, the structural obstacles remain. Law schools can only be expected to embrace all markets if resources are available to expand staff, libraries, and teaching space. Because the current government favours expansion without any pro rata increase in public investment, it is difficult to see how the changes desired can be secured with the degree or speed of success they deserve.

In summary, there is abundant evidence of rapid and exciting change in English universities over the past two decades. The student body is now quite different in size and profile. The degree schemes and teaching methods have diversified and become far more adventurous. Yet, without adequate public funding, the fear must be that it is the quality of education services which have changed the most, and not necessarily for the better. The Government has responded to the dangers of downgrading the quality of output by instituting a system of quality control. Thus, the Higher Education Funding Council of England, the public body through which governmental funds are channelled to universities, has established a Quality Assessment Committee to undertake reviews of the quality of teaching delivery. However, its first attempts to carry out this mission, beginning in mid-1992, have revealed a breathtaking level of muddle, incompetence, and ineptitude which have rendered its reports on quality largely valueless.

Despite all the pressure and failings in the English university system, there can still be found many instances of excellent and innovating teaching. The best university law faculties can be identified as those which have a commitment to staff development, have not allowed themselves to be swamped by student numbers, and, above all, still maintain the symbiotic relationship between research and teaching, which marks true universities as distinct from other forms of higher education.