New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 24 April 2015
Formal Legal Education: A Few Lessons
From The Past, Useful For The Future
Professor John H. Wade*
This note suggests (again) that some of the goals of legal education can be
discovered helpfully by observing excellent “lawyers”
diverse occupations) anecdotally and/or systematically. It repeats the
challenging question – what are the causes
of a person becoming an
excellent lawyer? There is nearly a century of criticism of formal university
legal education for allegedly
failing to contribute “enough” towards
the production of a sufficient number of “excellent” or even
“lawyers” (in the diversity of careers which
“lawyers” enter). How should we respond?
The note offers a quick quiz, to be answered quickly or slowly, to help
extract important educational goals and methods from the past
for the future.
From there, suggestions drawn from lessons of the past are presented as worthy
of regular incorporation into every
law school and university ecosystem.
ii. what iS ‘exceLLent Lawyering’ (within the diverSity OF ‘LegaL careerS’)?
Presumably the majority of law teachers and educational policy makers have
friends who, in our opinions, are model “lawyers”.
We respect them
for their character, integrity, perseverance, specialised technical knowledge,
breadth of knowledge, wisdom, range
of skilled and accessible friends,
adaptability, humility, assertiveness, humour, courage, listening, speaking and
writing skills.1 We would send our beloved relatives to them for
assistance. (Do we tell our law students with pride about these model friends of
These role models clearly define some of the key ultimate attributes we
are seeking to inculcate in law students, and ourselves,
as teachers. How often
are these long terms goals invisible to both staff and students; or devoured by
other intermediate goals of
law school such as funding, curriculum
“coverage”, grade hunt, and esteem accumulation?
* Director, Dispute Resolution Centre, Faculty of Law, Bond University, Gold Coast, Queensland, Australia.
1 Note the remarkable number of top measures of excellence which are
related to attitude and character. See J O Mudd and J W
“Professional Competence: A Study of New Lawyers” (1988) 49
The anecdotal or systematic sociology of “lawyering”, law offices
and lawyering excellence, rather than of “law”,
is another wave of
scholarship and teaching which has hardly touched Australia.2
Causation – what paths to excellent lawyering?
How were these ideal lawyers created? By what diversity of paths? By what
combinations of nature and nurture? What positive contribution
did their formal
legal education have towards expert or competent knowledge, skills and
character? This is an important, though humbling,
and mysterious question.
Probably one third of the best lawyers I know were not present at Sydney
University Law School in either
mind or body.3 They were leading busy
lives elsewhere for four years. (I know, because they borrowed my notes.)
Conversely, some of the worst lawyers
I know attended nearly every class. (They
also borrowed my notes.)
What standard theories on nature and nurture can be recycled from these
anecdotes? For example, law school experience has only marginal
the already very “bright” students; and is perhaps of only marginal
influence upon the already “failed”
in skill and character? If so,
why do we labour? Perhaps for the inspiration and enlightenment of the nebulous
in- betweens and the
“late-blossomers”? Or is the law school
experience largely irrelevant, as the intensive education of the market-place
will quickly push the pre-ordained good, bad and in-between to higher levels of
their dormant “potentials”?
iii. FOrmaL LegaL edUcatiOn – what iS it?
Formal “legal education” takes place in many contexts –
CLE, PLT, daily workshops in law firms and government departments,
accountants, valuers, doctors, university law and business faculties, both
undergraduate and postgraduate, some psychology,
criminology, dental and medical
faculties, tape, radio, TV and DVD “law” programs, the proliferation
internet sites, and a vast industry of “legal
publications” for all levels of interest.
2 E.g. L M Brown and T L Shaffer, “Toward a Jurisprudence for the Law Office” (1972) AmerJJuris 125; C D Kelso, “Steps Toward a Lawyer Oriented Jurisprudence: Problems, Promises, Procedures and Pitfalls” (1967) 19 U FloridaLR 552.
3 See more systematic evidence of law student “absence” in Australia and USA in Ziegert, Stephens and the Cramton Report discussed in J H Wade “Legal Education in Australia
– Anomie, Angst and Excellence” (1989) 39 J LegalEduc 189,
Of course, informal legal education is occurring each minute in
mega-blasts of observation, experience, reflected-upon-experience, questions,
of internet or hard copy snippets and tomes, TV and film soap
operas, and daily newspaper, internet and TV “news” about
which has entered a “legal” arena.
A narrow band of formal legal education is that which takes place in
universities towards JD, LLB or other degrees.
A century of criticism and perceived “failure”
This above narrow type of formal university legal education in Western countries has been subject to an onslaught of criticism for over a century.4
The persistent critics are both insiders and outsiders – law students,
reform commissions, law faculty researchers, and government
agencies. If the
century of critics are even fifty percent correct, how can we hope to
“advance” into the future, when
on the dominant published
historical interpretation, we are building on regularly recycled ruins? Why
are the critics of this form of university legal education
so persistent and
harsh? Are our goals too high and too many?
If the last 100 years of university legal education have allegedly been so
bleak with only momentary glimpses of light, why not the
next 100 years also?
What has changed? To remind you of the bleak century of comment –
university law schools are criticized
(even more voluminously in the last two
1. On goals: too focussed on ephemeral rules; unnecessarily dividing
theory and practice; being amateur sociologists, economists, historians,
logicians and psychologists; isolated from “learned” disciplines,
physically, emotionally and intellectually; uncertain
what shibboleths like
“thinking like a lawyer” even mean; dictated to by ignorant and
ephemeral practitioner groups or
“customer” students; neglect or
nominalism in key areas such as ethics, service of the poor, cross cultural
international law, and especially skills; goal platitudes copied
into vision statements; student culture focussed on grades, not
academic culture focussed on bulk research productivity, not good teaching, or a
helpful educational ecosystem.
2. On methods: boring after first semester; intimidating;
humourless; ignorant of and disinterested in learning theory; isolated from
experience; individualistic; minimal group or cooperative learning;
neglecting insights from practitioners; replicating mistakes
of the past;
teacher-centred talking; insensitivity to multiple learning styles;
driven by power-point and potted summaries; restricting admission to the
already “bright”, thereby increasing chances
of status and success;
isolation of teachers and students and undue individualism; learning by
anecdote, devoid of systematic data
(eg the “litigation
3. On resources: under-funded; trapped by the Langdellian model of
large classes and cheap casebooks; a cash-cow for the university; talent
by “publish or perish” and the pursuit of research funding;
talent lost to a highly paid private sector.
4. On feedback: little ongoing feedback to students; lack of
resources or training for feedback; reduction to ranking by written issue-
exams; resistance to student feedback about “the system”;
little openness to constant student feedback in order to discuss
5. On educational ecosystem:5 increasingly managed by
short-term, top down, bonus-driven, shoot-the-messenger bureaucrats; with paying
students demanding value-for-money;
staffed by ageing academics; managing
increasing cultural and linguistic diversity; expecting more for less; possibly
of incoming educational “talent”; institutional
incentives to pursue research funding; increased expectations upon staff;
part-time staff; increased staff cynicism and distrust about
“change”; constant marketing; propaganda and deception
students and research funders; pseudo and real staff accountability to funders;
competitive pursuit of “esteem indicators”;
gradual and allegedly
“efficient” separation of research and teaching; preoccupation with
efficiency and the generation of income”; and
attempted accountability on those same measures;6 resistance to
change due in part to inertia, ageing, distrust, poor resources and perceived
5 The complex factors interacting in any educational environment are occasionally systematised as an “ecosystem”(pond or swamp). See outstanding translation of educational theory and practice for university teachers in P Ramsden, Learning to Teach in Higher Education (1992); and in J Biggs, Teaching for Quality Learning at University (1999).
6 R Collier, “We’re all socio-legal now? Legal education, scholarship and the ‘global knowledge economy’ – reflections on the UK experience” (2004) 26 SydneyLR 503; M Thornton, “The idea of the university and the contemporary legal academy” (2004) 26
7 M Keyes and R Johnstone, “Changing legal education: rhetoric,
reality and prospects for the future” (2004) 26 SydneyLR
Is the law school glass half full, or half empty? It is certainly relative
deprivation when law schools are compared around the planet.8 The
avalanche of criticism, of course, implies multiple moderate or high
expectations and possibly increasing “enlightenment”
of both staff
and students. Are these expectations too high? What is a realistic quota of core
competencies (beyond propaganda) for
a university law school? My own subjective
impression is that the quality of legal education at my own law school is higher
on all measures, in contrast to the various law schools I
attended and taught at in Australia, Canada and USA between 1960s and
A quick quiz for legal educators
Set out below is a quick quiz to assist law teachers to clarify next
semester’s or next year’s goals, methods, resources
1. What are your current five greatest books ever written on law, which you
would recommend to every law student to read several
times? (How many times have
you read each of these?)
2. What are your current five greatest books on legal education which you
would recommend to every law teacher to read several times?
(How many times have
you read each of these?)
3. What are the current ten themes in each subject you teach which will be
eternal, even as ephemeral case law and statutes in that
subject ebb and flow?
What percentage of your past or current students can recite at least 7 of these
10 themes by rote?
4. What are your current five best law journal articles written in the last
100 years which you would recommend to every law teacher and student to read
multiple times? (How many times have you read each of
5. What are the five classical “types” of law teachers?9
Where do you fit at present in those five types? Why? Do you tell your
students regularly your where and why typology?
8 W Twining, “Developments in Legal Education: Beyond the Primary School Model” (1991)
2 LegalEducR 35.
9 Traditional legal textbook scholar; practitioner-scholar; clinical law
teacher; interdisciplinarian, activist teacher –
see E G Gee and D W
Jackson, “Bridging the Gap: Legal Education and Lawyer Competency”
(1977) BrighamYoungULR 695.
6. What were the features of the best personal educational experiences
which you have had? Why were they so good? Which of those
replicated in the classes which you currently teach?
7. What were the features of the worst educational experiences which you
have had? Why were they so bad? Which of those features
are replicated in the
classes which you currently teach?
8. What did you learn from your students last semester?
9. Which parts of your current work do you love?
10. Who was the best “lawyer” you have ever worked with (in
whatever capacity)? What attributes made him/her so good?
Which of those
attributes do your colleagues and students say are present in you?
Did you have difficulty answering these questions? You are not
11. Why are these questions so difficult to answer? Speculate – would
other “disciplines” of university study have
more or less difficulty
in answering an equivalent quiz?
v. BaSic LeSSOnS FrOm the paSt FOr the FUtUre
OF FOrmaL LegaL edUcatiOn
Amidst the constant babble of the critics, are there any basic lessons to
give university educators and policy makers some realistic
goals and methods?
Here are a few lessons from the past. There are no quick fixes here, especially
no technological quick fixes.
Rather the hard work of implementing
“old” truths. Consider each lesson ending with a
attempt to decide what changes or stability
might be needed in your teaching, at your law school and university (i.e. the
This is a form of budget-cutting, self-help,
unsupervised, distance learning.
The range of law school educational experiences which are most likely to
“succeed” (i.e. cause progress towards lawyering
excellence) for the
largest number of students:
1. Usually occur during voluntary non-assessable common tasks which involve
hard work, fun and relationships – clubs, societies,
2. Usually occur during informal conversations in corridors or over meals
between students, and between respected staff and students,
3. Usually occur where teachers add to the ecosystem the following
established qualities of “good teaching”, therefore....?
• Wanting to share your love of the subject
• Making the material stimulating
• Working at the student’s level
• Using clear explanations
• Making it clear what has to be understood and why
• Showing concern and respect for students
• Encouraging student independence
• Using appropriate assessment
• Giving high quality feedback
• Learning from students about the effects of
4. Usually occur where the following practices systematised in Africa in
the fifth century AD are incorporated into the ecosystem:
• Respect students
• When students demonstrate ignorance, inform obliquely as though
another asked a question
• Offer questions – ask how they would deal with a
• Hurry slowly?
• Teacher’s life must be an example
• NB. Begin with what student knows in his/her own life (x +
• Do not make the task too daunting (x + 7)
10 P Ramsden (1990-91) 2 LegalEducR 149, 151.
• Enthusiasm of a teacher is essential
• Speak in slang in order to “reach” hearers
• And yet language must also be polished and pleasant
• The learner’s curiosity and love for the subject should be “sparked”.
Without this, teaching is useless.
• Change position, style and method regularly to combat
• People learn best by “doing”
• Excellence is learned by being in the presence of excellence
• Sometimes, learning takes place best by random wandering of ideas
and questions (ie no structure at all). This produces a certain tension
and frustration, which may lead to a requested exposition. To expound
early is to avoid the preparation of the necessary tension and
• “Do not rely too much on authority, especially mine.” “Have the
confidence to find your own knowledge.”
• Informal learning, in the corridors, on walks, and while working
is far more memorable than formal learning
• A teacher should express joy at intellectual liveliness of
• A teacher should be constantly learning as (s)he
Put one or more √ next to the above practices if you think
they are already occurring; one or more ? if you think they are
The writer knows that regular reflection on friends and role models who are
“excellent lawyers” provides some ongoing
answers to the century of
debate over what are appropriate goals for any law school? Of course this
requires that we find, and anthropologically
spend time with such excellent
Likewise, the humbling attempt to write out answers to the questions in
Section IV of this article will assist to both challenge and
teaching and learning methods for next semester.
11 G Howie, Educational Theory and Practice in St Augustine
References to Repetitive Critiques of Legal Education
ABA, Legal Education and Professional Development (Chicago: ABA, 1992)
(The McCrate Report).
Abel, R, “Between Market and State: The Legal Profession in Turmoil” (1989)
52 Mod L Rev 285.
Abel, R, “The Decline of Professionalism?” (1986) 49 Mod L Rev
Allen, FA, “Humanistic Legal Education: The Quiet Crisis”, in Essays on
Legal Education, ed Neil Gold, 9 (Toronto: Butterworths,
ALRC, Managing Justice, Report No 89 (Canberra: AGPS, 2000) ch 2
“Education, Training and Accountability”.
American Bar Association, Law Schools and Professional Education (Chicago: ABA, 1980) (Cramton Report).
Biggs, J, “Teaching for Better Learning”  LegEdRev 8; (1990-91) 2 Legal Educ Rev 133. Biggs, J, Teaching for Quality Learning at University (Buckingham: SRHE
and Open University Press, 1999).
Bok, D, “A Flawed System of Law Practice and Law Teaching” (1983)
33 J Legal Educ 570.
Brown, PM, “The Quiet Revolution in the American Law Profession” (1986)
24 Fordham Urb L Rev 855.
Collier, R, “We’re all socio-legal now? Legal education, scholarship and the
‘global knowledge economy’ – reflections on the UK experience” (2004)
 SydLawRw 25; 26 Sydney L Rev 503.
Cooper, JH, “The Law School Way” (1975) 27 J Legal Educ
Costin, F, “Lecturing Versus Other Methods of Teaching: A Review of
Research” (1972) 3 Brit J Educ Tech 4.
Cramton, RC, “The Current State of the Law Curriculum” (1982) 32 J Legal
Educ 321, 331.
Cramton, RC, “The Ordinary Religion of the Law School Classroom” (1978)
29 J Legal Educ 247.
Dallimore, S, “The Socratic Method – More Harm Than Good (1977) 3
J Contemp L 177.
Gee, EG and Jackson, DW, “Bridging the Gap: Legal Education and Lawyer
Competency” (1977) Brigham Young UL Rev 695.
Gibbs, G, Habeshaw, S and Habeshaw, T, 53 Interesting Things to Do in Your
Lectures (Bristol: Technical and Educational Services Ltd,
Gibbs, G, “Twenty Terrible Reasons for Lecturing” (Occasional
Paper, Birmingham, 1982).
Gorman, RA, “Legal Education at the End of the Century: An
Introduction” (1982) 32 J Legal Educ 315.
Kahn-Freund, O, “Reflections on Legal Education” (1966) 29 Mod L Rev
Kennedy, D, “How the Law School Fails: A Polemic” (1970) 1
Yale J L & Soc Action 71.
Keys, M and Johnstone, R, “Changing legal education: rhetoric, reality
and prospects for the future”  SydLawRw 26; (2004) 26 Sydney L Rev 537.
Kissam, PC, The Discipline of Law Schools: The Making of Modern Lawyers
(Durham: Carolina Academic Press, 2003).
Larsen, MS, The Rise of Professionalism: A Sociological Analysis
(Berkeley: U California Press, 1977).
Lasswell, HD and McDougal, MS, “Legal Education and Public Policy:
Professional Training in the Public Interest” (1943) 52 Yale L J
Le Brun, M and Johnstone, R, The Quiet Revolution – Improving Student
Learning in Law (Sydney: The Law Book Company, 1994).
Levine, M (ed.), Legal Education (Sydney: Dartmouth, 1993). See also
the helpful bibliography in this book.
Mager, RF, Preparing Instructional Objectives, 2nd ed
(Belmont, California: David S Lake, 1984).
Marton, F and Satjo, R, “On Qualitative Differences in Learning, Outcome and
Process” (1976) 46 British Journal of Educational Psychology
4-11. McDonald, P (ed.), Settling Up (Melbourne: Prentice-Hall,
McFarland, DD, “Self-Images of Law Professors: Rethinking the Schism in
Legal Education” (1985) 35 J Legal Educ 232.
Mohr, AJ & Rodgers, KJ, “Legal Education: Some Student Reflections”
(1973) 25 J Legal Educ 403.
Mudd, JO, “Beyond Rationalism: Performance-Referenced Legal
Education” (1986) 36 J Legal Educ 189.
Pearce, DE, Campbell, E and Harding, D, Australian Law Schools: A
Discipline Assessment for the Commonwealth Tertiary Education Commission
(Canberra: AGPS, 1987). (Pearce Report)
Ramsden, P, “Evaluating and Improving Teaching in Higher
Education”  LegEdRev 9; (1990-91) 2 Legal Educ Rev 149.
Ramsden, P, Learning to Teach in Higher Education (London: Routledge,
Richardson, J, “Does Anyone Care for More Hemlock” (1973) 25 J Legal
Riley, F., “The Practice of Law: An Identity Crisis” (1989) 27 L Soc’y J (NSW) 50.
Schon, DA, The Reflective Practitioner (New York: Basic Books, 1983). Social Sciences and Humanities Research Council of Canada, Law and
Learning (Ottawa, 1983) (Arthurs Report).
Stevens, R, “Law Schools and Law Students” (1973) 59 Va L Rev 551. Taylor, JB, “Law School Stress and the ‘Deformation Professionelle’” (1975)
27 J Legal Educ 251.
Thornton, M “The idea of the university and the contemporary legal
academy”  SydLawRw 24; (2004) 26 Sydney L Rev 481.
Tomasic, RA (ed.), Understanding Lawyers: Perspectives on the Legal
Profession in Australia (Sydney, 1978).
Twining, W, Blackstone’s Tower: The English Law School (London: Stevens
& Sons/Sweet and Maxwell, 1994).
Twining, W, Law in Context: Enlarging a Discipline (Oxford: Clarendon
Twining, W, The Great Juristic Bazaar (Vermont: Ashgate,
Twining, W, “Developments in Legal Education: Beyond the Primary School
Model” (1991) 2 Legal Ed Rev 35.
Twining, WL, “Pericles and the Plumber” (1967) 83 LQ Rev
Wade, JH, “Legal Education in Australia – Anomie, Angst and
Excellence” (1989) 39 J Legal Educ 189.
Wade, JH, “Legal Skills Training: Some Thoughts on Terminology and
Ongoing Challenges” (1994) 5 Legal Ed Rev 173.
Wade, JH, “Meet MIRAT: Legal Reasoning Fragmented into Learnable
Chunks” (1991) 2 Legal Ed Rev 283.
Wade, JH, “Re-inventing the Pyramid: A Process for Teaching and Learning in Mediation Courses” (2000) 38 Family and Conciliation Courts Review
Wade, JH, “The Behaviour of Family Lawyers and Implications for Legal
Education” (1989) 1 Legal Ed Rev 165.
Wade, JH, “Writing Theses and Reports: TCAGONARM – an acronym for
Structure” (1999) Bond Law Rev 1.
Watson, AS, “The Quest for Professional Competence: Psychological
Aspects of Legal Education” (1968) 37 U Cinn L Rev 93.
Ziegert, KA, Students in Law School – A Preliminary Documentation (Sydney
University Law School, 1986).
Ziegert, KA, Students in Law School: Some Data on the Accumulation of
Advantage (Sydney University Law School, 1985).
One example set of (fluctuating) answers to the
Quick Quiz in “Formal Legal Education”
1. Greatest law books?
• K. Llewellyn, The Bramble Bush (New York: Oceana,
• T.E. Atkinson, Law of Wills (St Paul: West, 1953)
• D. Pruitt and S. Kim, Social Conflict: Escalation, Stalemate and Settlement
3rd ed. (New York: McGraw Hill, 2003)
2. Greatest education books for legal educators?
P. Ramsden, Learning to Teach in Higher Education (London: Routledge,
J. Biggs, Teaching for Quality Learning at University (Buckingham: SRHE
and Open University Press, 1999)
Cramton Report, Law Schools and Professional Education (Chicago: ABA,
W. Twining, Law in Context: Enlarging a Discipline (Oxford: Clarendon
R.F. Mager, Preparing Instructional Objectives (Belmont, California: David
S Lake, 1984)
McCrate Report, Legal Education and Professional Development (Chicago:
3. Ten eternal themes in your subjects?
Eg Recurrent Themes in Family Law
• Female poverty
• Private and public obligations to support families – the
• Commercial versus family interests
• The movement from discretion to rule (and back again)
• Violence in the home
• Self help, contempt and enforcement dilemmas
• Responding to pluralism, and the unorthodox.
• The unified Family Court – grasping a vision
• Conflict management – a smorgasbord of approaches
• Power over children’s lives
4. Five best Law Journal articles?
• W. Twining, “Pericles and the Plumber” (1967) 83
• M. Galanter, “Reading the Landscape of Disputes” (1983) 31 UCLA Law
5. Five types of law teachers?
• Traditional legal text-book scholar
• Practitioner – scholar
• Clinical law teacher
Practitioner – scholar because this is interesting; challenging; enables reflective
writing and examples in classroom. Yes, I tell students this.
6. Best personal educational experiences?
Eccentricity; funny; jokes; weird-clothes; drama; mastery of subject;
succinct; excellent memory; classical “scholar”;
promotes alternative views; interactive; small groups; fun; realisation of other
ways to learn; student motivation
(“I want to be here”); stinging
comments which prompt me to achieve; make me believe I can achieve; obvious love
interested in me; “opens new world to me”; casual
encounters with teachers; sense of accountability; modelled what is
feedback and chance to try again; high expectations.
7. Worst education of experiences?
Diet of lectures; no active participation; lack of expertise of teachers;
institutional pressures to give courses to inexperienced
teachers; felt uncared
for; no “options”; zero feedback; disinterested in subject matter
kept “busy” writing notes; vastness of classes; anonymity;
“coverage” of course: assumed prior knowledge which
did not exist;
loss of confidence cycle; failure to attach “new” knowledge to
existing knowledge; constant note-taking;
teacher not interested in what is
being done; cynicism of other students.
(All these factors can be fitted into Biggs’ Ecosystem of
8. What did I learn from my students last semester?
Keep summarising; giving concrete illustrations; chat in corridors; define
goals of each class more clearly.
9. Which parts of my current work do I love?
Practising as a mediator; writing reflectively on these experiences; my
colleagues; most of my students; finding excellent interdisciplinarians.
10. Who was best lawyer I have worked with? Why?
My first master solicitor; my second law dean; two commercial law partners,
one family law partner in Sydney and Brisbane.
Good listeners; enjoyed people; patient; high standards of personal
behaviour; energetic; good sense of humour; meticulous about detail
documents; well-connected; memorised by rote some broad legal principles;
11. Why are these questions so difficult to answer?
Perhaps because we do not ask them frequently? Also legal studies often appear to be a mass of facts and shifting rules; isolation means little sharing of joint “themes” and little self reflection on grand themes; or classics. Perhaps some other disciplines would have more established “classic” works and stages of development to answer questions 1-4. Questions 5-11 would be equally difficult or easy in other disciplines?