In this article, I argue that alternative assessments should be used in law schools to re-orientate student learning towards a broader, liberal arts education in law. Students should be given new assessments that challenge them to think for themselves about the origin of law, the purpose of law and the effect of law on society. This can include the teaching of ‘soft’ skills such as empathy, compassion, critical thinking and reflection. Law students should graduate with the capacity to reflect, critically, about the psychological and emotional effect of law on society, unpacking the ‘objective’ nature of judicial decision-making to reveal the subjective social forces underneath. It is only through building compassion and understanding that we can break down the current detached, clinical view of law that most students have by the time they graduate.[1] New assessment methods can help with this ‘human’ training, allowing students to engage with their own emotional reactions to cases, rather than barring them from feeling any emotion whatsoever.[2] Alternative assessments can also help teach students the social, political and economic side of law.[3]

The framework for this article is built upon the teaching of WPM Kennedy, the first dean of Toronto law school.[4] Kennedy suggested various different ways of assessing law not via the case method, but by innovative assessment tasks that challenged students to think about the law critically.[5] At the core of Kennedy’s teaching was the idea of law as a liberal art and law in context. Instead of lecturers forcing students to see law through a single method of instruction (the case method), students in Kennedy’s classes were to find their own method.[6] Instead of seeing law as objective and apolitical, students were encouraged to question the social purpose of law and the political ends it served.[7] Instead of being detached from the cases they read, students were encouraged to have an opinion.[8] Kennedy’s law school taught students to connect with the political and social forces that underpinned the legal system. To this end, he describes the role of law lecturers as follows:

The teacher of the law… is no longer merely a contemplative creature describing the law as it exists… Law must be designed, assessed, and taught, not in the abstract, but in the context of the complex relations and processes of modern society.[9]

Kennedy advanced the idea of law schools using more essays, critical thinking tasks, reflective tasks, law reform tasks, small class discussions and simulations. These assessments were all aimed at getting students to understand critiques of the law, reflections on the effect of law on society, the social function of law and how to enact law reform.[10] Taught in this way, students could understand the law in an interdisciplinary manner, seeing the “countless relationships” between law and other fields.[11] This helped them gain a greater understanding of law in context and a critical view of legal doctrine.

Australian law schools have been slow to adopt these kinds of assessment methods.[12] Unlike Kennedy, most Australian law schools still use the case method, invented in the late 1800s, as the main assessment tool in their curriculum.[13] Sturm and Guinier have suggested here that law school “culture is remarkably static, non-adaptive, and resistant to change, even in the face of strong pressure from significant constituents of legal education”.[14] Despite the widespread benefits of new and alternative methods of assessment – there is a strong allegiance to traditional teaching pedagogy.

This is despite the importance of assessment tasks in setting the tone of the curriculum. As B.R. Snyder discovered in the 1970s, university students value assessment tasks above everything else.[15] Students look to assessments to determine what matters in the curriculum and what does not. When asked about “all aspects of their studies,” students prioritize assessment tasks above teaching and learning.[16] Based on Snyder’s research, we can conclude that students in modern law schools will prioritize the case method and black letter law above everything else, if that is the main thing they are being tested on.[17] Arguments for introducing students to concepts of jurisprudence, ethics, justice or morality – through course guides, teaching or general guidance in the curriculum, are therefore not enough.[18] Unless specifically tested on it, students will not prioritize these aspects of law as important.[19] The only way to change what students prioritize in legal education is to change how they are being tested.

The first way to do this is to assess the law in context, to teach students to have an interdisciplinary idea of law through class discussions and broad lectures that move across multiple different fields. The second way is to teach critical thinking, via reading groups, questions in class and essays. The third is to teach reflection, via reflective tasks, journals, self and peer feedback. The fourth is to teach law reform, via critique in class and law reform tasks. The fifth is to teach in small classes, allowing students to get more personal feedback on assessment. Finally, the sixth is to use simulations and roleplays, to get students to see, visually, the impact of law on society.

1) Teaching Law in Context:

When WPM Kennedy founded Toronto law school, he declared boldly that it had “no professional ends to serve”.[20] Instead of teaching a narrow, black letter law curriculum, Kennedy aimed to teach the law in context.[21] He believed that law “should not be taught in vacuo [in a vacuum], apart from the other social sciences”.[22] Instead, lectures and class discussions should be used to take students beyond the law into politics, philosophy, history, sociology and so on.[23] Students would learn that the law comes from social forces, from politics, from our ideas on right and wrong and from social movements.[24] They would learn why the law exists, who benefits from it and who loses out. They would learn about the effects of the law on society. But most importantly, they would learn about how the law relates to other disciplines in the interplay between one field and another.

Today, we would call this an interdisciplinary legal education. Unlike the traditional case-based approach (which relies on “humiliating students if they bring in other ways of thinking or knowing about the world”) interdisciplinary legal education rewards students for drawing on other disciplines.[25] Although not a popular idea in Kennedy’s time, interdisciplinary legal education is expanding across US law schools today.[26] A new generation of young professors are entering the legal academy with a determination to relate law to other fields.[27] New programs are being created such as law and economics, law and literature, legal philosophy and legal history.[28] Professors are engaging with law students for the first time using “different ways of thinking about law… behavioral, economic or classical economic, sociological, philosophical, historical, critical, literary and so on”.[29] They are doing so on the basis that something is gained when combining law with other disciplines.[30]

There are many arguments for what exactly is gained. Some argue that interdisciplinarity gives students a broader, well-rounded understanding of how the law can change in response to social forces.[31] Others argue that interdisciplinarity allows students to see the effect of law on society.[32] Still others argue that interdisciplinarity is a new job requirement in the new, digital, globalized economy – where workers are expected to move across disciplines, languages and countries rapidly.[33] Whichever argument is used – there is a growing consensus that interdisciplinarity adds something to traditional methods of legal education.

But teaching in an interdisciplinary manner is harder than it seems. Despite a growing movement of interdisciplinary legal research, many law professors have themselves been taught in the old fashioned, traditional case method and struggle to change their teaching style accordingly.[34] As a result, “there is a norm… of teaching in a black letter law manner, despite what the professor is researching in their private time”.[35] Professors typically separate their “research and teaching,” expounding one thing “in their law review articles” while doing another in class.[36] This is reinforced by the conservatism of law faculties – many of whom remain wedded to the case method.[37] There is also some resistance or intransigence to the idea of marking assessments when the students themselves push beyond the discipline of law, as if this is somehow beyond the scope of the curriculum.[38]

One way to fix this is by getting professors to bring interdisciplinary discussions into their lectures. WPM Kennedy, for instance, used his lectures to take students beyond the law and into other fields. Speaking in front of groups of students, he drew extensively on his knowledge of “history, politics, current events” and various “prominent people he knew,” linking legal principles together with “problems in political science”.[39] The idea was to relate law to life, rather than life to law – to unpack for students the various interconnections between law and other fields.[40] His students were a big fan of this approach – which they called “excellent,” “always interesting, often funny,” and enjoyable, saying that Kennedy taught them to think critically and expansively about legal doctrine.[41] Professors can act as facilitators for interdisciplinarity in this way by bringing it into the classroom.

A second way to teach in an interdisciplinary manner is through class discussions. Markus Dubber, a modern successor to Kennedy at Toronto law school, takes this approach today.[42] In 2012 he established the Critical Analysis of Law (CAL) lab at Toronto law school.[43] The CAL lab is an interdisciplinary legal institute aiming to contextualize law for students through a law review, a student reading group, a student film group, research workshops, seminars and flash workshops.[44] The reading group in particular promotes class discussion on law as it relates to other disciplines.[45] Students are provided with virtual documents available for reading online and informal ‘read-in’ “sessions [are held] in the faculty”.[46] Students and professors come together to discuss various texts on legal education and teaching/learning the law with an eye to interdisciplinarity, relating law to politics, sociology and the broader social context.[47] The CAL film group likewise encourages class discussion – by getting students to watch topical films that shed insight into an aspect of law or critique current legal norms. Discussions after the film screenings have included questions about the rule of law, the role of the lawyer, law and order, freedom of speech, constitutional law, criminal law etc.[48] Law is here discussed in the context of popular culture – revealing similar psychological insights to the “law and literature” movement.

Kennedy himself was a fan of class discussions that joined the law with other disciplines. In classes on law and economics, he drew correlations “between the social and economic forces in society and those institutional and legal controls [on the economy]”.[49] In classes on law and philosophy, students were taught to relate basic theories of logic with the legal system.[50] In classes on political science, students were told to discuss the “great texts from Hobbes to Mill,” allowing them to question the purpose of law, or why we have law (to prevent anarchy, as a social contract, and so on).[51] Some of these classes were taught by professors with a background in economics or philosophy, as opposed to law. This had several distinct benefits. As Robin West puts it, having legal philosophers in law faculties gives students a far “richer understanding… of the relationship between law and our canonical works of political and moral philosophy, and a greater appreciation of the philosophical structure of law’s foundations”.[52] Bringing these other disciplines and texts into class discussions therefore enriches a student’s understanding of the legal system.

One argument often made against interdisciplinarity is that it is somehow impossible or poorly thought out. Balkin, for example, critiques the various “law and ___” movements that have arisen in recent years, such as law and literature, law and economics and so on, as being taught in bad faith.[53] A real interdisciplinarity, he suggests, would be to see law as economics and law as literature.[54] The “and” dichotomy that is now popular maintains a strict separation between the disciplines that are being combined, with law on the one hand, and say, economics on the other.[55]

While this is a valid critique, it seems to miss the way in which interdisciplinarity brings other disciplines into classrooms to change the way students see the law. As Joel Modiri puts it, “philosophy, the critical social sciences, literature, history, and art enter legal discourse to disrupt the purported fixity and determinacy of law and legal discourse”.[56] Instead of being ‘rigid,’ law is revealed to be fluid and changeable according to the whims of social forces. In the words of the legal realists, interdisciplinarity can reveal that the law is “living”. During the height of Apartheid laws in South Africa, for example; art, music, political philosophy and other disciplines helped activists question the laws of segregation, in a manner that a strict black letter law approach would not.[57] Similar examples can be seen in the fight for women’s rights, gay rights, environmental rights and so on. To understand the law in its entirety requires an understanding of this interplay between law and other areas of knowledge, between law and society and law and social forces. It is perhaps true that the limit of the “law and ____” approach is to just bring a new viewpoint to the law, but perhaps a new viewpoint on law (one that transgresses the black letter law approach) is sufficient to get students to start to question what they are being taught.

A second counterargument is that interdisciplinarity reveals the effect of law on society. ‘Law and ____’ movements typically collide a new discipline with law to reveal the psychological, physical or social ramifications of the enforcement of legal norms.[58] As Weinrib puts it, “a medical misadventure, for example, may raise not only issues of liability, but also issues of economics, of sociology, of political science, of psychology, and so on”.[59] By bringing other disciplines into law school, law students can learn what happens after a case is decided. Who is affected and how, what economic and psychological damage is done to the victim or defendant, and so on. This brings the law much closer to the other discipline, and can result in students seeing law as economics, and so on.

Finally, some argue, in a traditional sense, that interdisciplinarity can also prepare law students for a growing diversity of international graduate jobs.[60] Typically, this argument is framed as follows: large, transnational companies require interdisciplinary thinking in the newly globalized world. Students need transferable skills to move between different countries, languages and offices.[61] Occasionally, the threat of automation is mentioned here, heightening the need for interdisciplinary skills.[62] Law schools owe it to their students to provide broad training to prepare students for the market.[63] I have argued against this kind of viewpoint in other parts of this thesis. Here, it is worth noting that this traditional view seems to be in conflict with the traditional view of protecting the case method as the dominant mode of teaching. If graduates need diverse skills, then surely assessments must change to meet those needs.

Despite some progress in bringing interdisciplinary thinking into law schools, there’s still a long way to go. Interdisciplinary subjects are too often left to electives, or one-off courses, rather than integrated as a core part of the curriculum. As Chemerinsky puts it: “few [law] schools, to my knowledge, make any coordinated effort to ensure that all students receive interdisciplinary instruction”.[64] Unlike WPM Kennedy, modern law schools fail to appreciate that interdisciplinary education must occur across all classes in order to be effective.[65] A whole of curriculum approach is necessary, to engage students with the idea that law is not isolated, or detached, from other disciplines. Interdisciplinary teaching can occur through lectures and class discussions and be assessed accordingly.

2) Critical Thinking Assessments:

A core component of WPM Kennedy’s teaching method was to teach students to think critically about the law. In a lecture in 1931, Kennedy told a group of students: “I wish you to consider that, behind each particular state, each particular law, there lies a political and social concept – the state, the law”.[66] Students were encouraged to ask questions about whose interests a statute served, where the law came from, who benefited from the law and who lost out, along with what social ends a law was meant to serve.[67] These critical questions revealed that the law was not objective and apolitical, but inherently subjective and political. The law was in fact active in shaping certain interests, setting up and determining the outcome of competition and thereby socially engineering our world.[68] It was nothing like a science, it was more of a system of power and social order. This kind of detached, critical understanding of law required students to learn critical thinking in class. Something that was a relatively new concept at the time.

Critical thinking has become something of a truism in university education since Kennedy’s days. In a 2013 study of 200 American provosts or vice presidents of universities, “critical thinking was one of the most frequently mentioned competencies… for both academic and career success.”.[69]

The problem is that no one can agree on what ‘critical thinking’ means exactly.[70] For the purpose of this discussion (and in line with WPM Kennedy and others), I define critical thinking as “challenging assumed wisdom” and seeing the intent, purpose and structure behind a text.[71] In this case, a legal text such as a judgment, statute or political decision. This might include a look at the history or political origin of the law, the motivation for the law, who benefits from the law and who lost out.[72] In other words, it is the idea of empowering students to see the hidden side of law, the underlying power structures, the underlying origins and the underlying motivations.[73] A critical education in law reveals, as Kennedy suggests, that the law is in fact subjective and political, rather than objective and apolitical.[74] Empowered by critical thinking, law students could gain the capacity to “ask pertinent questions, recognize and define problems, identify arguments on all sides… search for and use relevant data” and so on.[75] Ultimately, however, critical thinking should empower students to come to their own conclusions about the law they are learning (and thus, radically empower them to think for themselves).

In a law classroom, critical thinking can be taught by getting students to answer critical questions in class, working in reading groups or answering essay questions.

Critical Questions in Class:

To begin with, critical questions asked to students in class can interrogate the implications of a law, a student’s view of a law or different ways of viewing a law, such as a statute, case or political decision.[76] Historical inquiry can help students “overcome the closures and silences generated by orthodox and traditional theories” of law, and come to their own understanding of why a law was created in the first place.[77] This can, at its best, lead them to an understanding of “justice of the future,” through knowledge of the deep past.[78] Law is revealed to not be “a fully rational, technical fair and neutral body of rules,” but a product of society, social forces, politics, influence and power.[79] Without asking critical questions about the history and origin of law – students are unable to fully appreciate what made the law the way it is today.

One important question to ask is: what lies behind the law, aside from the legal authority itself? Students should be encouraged to “step back” from their preconceptions of the legal system and try to understand “not what the law is, but why it is and what it is for”.[80] This could include asking students to consider the political reality behind legal decisions, along with other social and economic “interests and powers”.[81] Laws typically benefit one group more than another, and social and power relations are formed along these lines. Questions related to this could include: Who created the law and where does it come from? Whose interests does a statute serve? Who benefits? Who loses?

Critical questions can also be asked to students regarding the history of law. Case law can be contextualised by asking students what was occurring at the time that a particular case was decided.[82] According to Justice Cardozo, law is “intelligible only in the light of history”.[83] The history surrounding a precedent often establishes why a law was created, what purpose it serves and whom benefits the most from it. To use an example, the police power in U.S. constitutional law empowers the states to create regulations for the “morals, safety and convenience” of the people.[84] A product of case law – the police power evolved over time in accordance with evolving definitions of “police”.[85] The word police in the 19th century came to mean not only a source of authority, but a protector of safety in the community.[86] The case law at the time therefore reflected a linguistic evolution of the word.[87] Historical questions about the law can also reveal the prevailing philosophical or social conditions that created law at a particular point in time in a particular country.[88] Law can embody the zeitgeist. The Civil Rights act of 1964, for example, embodied the zeitgeist of the civil rights movement, a protest movement pushing for equal rights for African Americans.[89] The act resulted in greater equality “in the American workforce” and went a long way to ensure an end to decades of racial discrimination in housing and politics.[90] It benefited both women and the African American community – ensuring equal rights and protections under the law.[91]

When asked critical questions in class, students need to be given the time to think properly about their answer, rather than responding immediately.[92] Surface answers should be avoided, and where possible, students should be tasked with going deeper behind the law. They shouldn’t be asked a follow-up question until they have answered the first question, and they shouldn’t be prompted to continue answering.[93] To assist with this, critical questions can also be asked of students outside of class on online discussion groups or eLearning software.[94] The benefit of doing this online is that students can answer anonymously, revealing their true impression of a text or law and any biases they find in the legal system. This is particularly true if students have a controversial opinion or an opinion that questions “the status quo” of legal authority.[95]

Critical questions about the law are already occurring in at least one class in UNSW Law School. Lucas Lixinski, a professor of law at UNSW, writes that he uses this style of questioning in his first year “Introducing Law and Justice” class.[96] As a first-year class, Lixinski uses the opportunity to get students to read “a list of questions that they should be asking of materials they read” throughout their law degree, including “cases, statutes [and] scholarly texts”.[97] He sees this “as a means to stimulate critical thinking”.[98] Questions asked to students include the following[99]:

Why is the law this way?

Who stands to gain? Who loses?

What does the law as is, miss?

What are its blind spots?

What do other people do faced with similar legal problems and why? Can we learn lessons there?

When was this case decided?

What was the broader context of this case?

What was the court / law-maker trying to say between the lines?

Who is the court / law-maker (white, male, property owner)?

What is this legal statement / assertion / rule a reaction to?

How does the private affect the public (and vice-versa)?

This list is not exhaustive but it gives some indication as to the type and style of questions that can be asked to get students to think critically about the law.

Reading Groups:

Critical reading groups that extend law students beyond class discussions as extra-curricular or seminar-based activities, are becoming increasingly common at various law schools today.[100] Typically, these reading groups arise out of an interdisciplinary framework (getting students to read about law in context), or from one of many new critical theories on law.[101] A popular framework is critical race theory, but reading groups also exist around law and feminism, economics, film and literature.[102] In each case, students are invited to a reading group centered on a specific set of readings that are critical of legal texts such as cases, statutes and/or political decisions.[103] Students are tasked with reading the texts, teasing out questions and interrogating “ideas, notions, theories [and] propositions” presented therein.[104] They then discuss the reading, in the manner of a tutorial or book club, in a critically engaging way.

Reading groups help students learn critical thinking skills by taking them beyond the normal curriculum into self-directed study. Typically, black letter law classes are hostile to the idea of critical thinking with regards to the law and interdisciplinarity. To quote Dean Spade: “it took years of social movement engagement for me to shed some of the internalized dominance behaviors I gained in law school, to remember how to think about solutions that cannot be won in law”.[105] One remedy to this common complaint is to introduce students to contrary perspectives while they are in law school, during critical reading groups.[106]

Examples of critical reading groups in law exist at the University of Toronto, Stanford, Harvard and Wits Law School.[107] Of these three, Toronto takes the broadest approach. Markus Dubber runs a reading group and seminar on critical thinking about the law, and “Perspectives on Law”.[108] In the seminars, students are given various readings that critique legal traditions. The reading includes topics such as: law in perspective, legal realism, legal processes, law and society, critical legal studies, law and gender, law and race, law and economics, law and literature, law and history, law and film and comparative law.[109] In each case, students are meant to read the works with a critical eye. They are meant to “step back from legal rules in various shapes and sizes… and, in this way, to gain some perspective(s) on “the law”: the better to assess it with””.[110] In a similar manner, Witts Law School has a ‘Critical Thinking Reading Group,’ which aims to get students to question legal texts and interrogate the author’s intention for bias, balance and validity in legal judgments.[111] This all-encompassing approach is meant to prepare students for their education in law, introducing them to all sorts of different perspectives and manners of understanding the legal system.

Other law schools take a narrower approach. Stanford, UCLA and Harvard have more focused reading groups on topics like critical race theory and feminist theory.[112] Critical race theory, as an example, aims to unpack the power structures behind the law that lead to institutional racism and discrimination.[113] It critiques traditional legal education by suggesting that “both liberal and critical legal theories marginalized the voices of racial minorities”.[114] Reading groups look at the founders of critical race theory such as “Richard Delgado, Jean Stephancic and Carol Aylward,” presenting them in contrast to other law thinkers.[115] This narrower approach has been criticized as being too prescriptive or ideological; it typically lends itself to giving students a new view of law, but not one that they have come up with by themselves.[116] Nevertheless, critical race theory and other new critical modes of thought do allow students to see the law from a new perspective, and to develop their critical thinking capacities.

c) Essays:

Critical thinking can also be taught by way of essay questions. Every law school in Australia uses essays as a form of assessment.[117] However, essays are not the central form of assessment.[118] That privilege goes to case problems.[119] However, essays could play a more central role in legal education, particularly if seeking to assess a student’s critical thinking ability in law.[120] In a liberal arts curriculum, essays would come to dominate law schools – getting students to compare and contrast, evaluate and analyse certain legal topics. In this section, I outline the various benefits of using essays as a tool for teaching critical thinking, before addressing potential drawbacks of the format.

Starting with the benefits, essays are generally acknowledged as an effective means of testing a student’s critical thinking on a subject matter.[121] They are seen as a more effective tool than other assessments when it comes to testing “analysis, synthesis, and evaluation”.[122] They help students to unpack an idea beyond mere rote memorisation or recitation.[123] In this sense, essays serve a different role from the more “objective” forms of assessments, like case problems.[124] When students are asked to respond to an essay question, they are tasked with coming to their own opinion backed up by relevant evidence.[125] This is unique from the case method, where students are encouraged to lean on the opinion of judges. As a result, essays can be an effective way for students to show their own perspective, and come to their own conclusions.

A secondary benefit of essays is that they encourage “reading around” a topic.[126] By nature, essays involve independent research and critical analysis of texts. A student’s individual research can go beyond the course curriculum, beyond the prescribed reading list. As a result, students who answer essays can learn an important skill of self-teaching, understanding new areas of a topic through research.[127] This can prepare them for the kind of independent mindset required for critical thinking.

Despite the benefits of essays, they remain a sidelined part of the law school curriculum. In Australian law schools today, case problems are still viewed as more ‘concrete’ and ‘relevant’ to students than essays.[128] Essays are viewed as too difficult to create, to write and mark by professors – who are otherwise preoccupied by both black letter law and their own professional research.[129] It is easier to teach a formal “doctrinalism” in law, focusing on “known knowledge and ‘right answers,’” than to teach via critically engaging essay tasks.[130] As a result of sidelining essays, “it is now possible to go through law school without having done a single research paper”.[131] Instead, essays are often replaced in part by short answer questions, multiple choices and problem questions.[132]

Essays are optional for the students. Not many take them up, probably a dozen a year out of 250 students – a very low percentage. – 3rd Generation law school.[133]

Essays are also viewed as incompatible with “market orthodoxy” or the broader neoliberal education agenda, where everything has to relate to a job or a technical skill or graduate attribute.[134] Although they do teach critical thinking, essays are not in themselves a technical skill, as with case problem questions. In fact, due to their critical and creative component, essays are generally seen as separate from professional skills altogether.[135] They may relate to the graduate attribute of communication, but again, so do less critical tasks.

In a cynical reading, students who answer too many critical essays questions may not make obedient employees upon graduation.[136] There is a fear that critical students will themselves ask too many employees of the law, their role of the lawyer and their firm.[137] This is reflected in part by what law firms ask law schools to teach. It is very rare for a law firm to ask for more essay questions, while it is very common for law firms to demand more practical, technical skills.[138] As I suggested earlier in this thesis – law schools are under immense pressure to obey the dictates of law firms on what to teach. Minimizing the role of essays is one way of doing just that.

A final objection to essays is levelled at the format itself. Comparative studies of essays versus other assessments reveal very marginal benefits to student learning when using essays.[139] Indeed, one off essays given at the end of semester may in fact be detrimental to students – as they are unlikely to pay attention to the feedback they receive.[140] For essays to be effective, they might have to be spread out on multiple occasions throughout the semester – in which case, the cost of time becomes insurmountable. Students are also highly resistant to reading and receiving feedback on essays – which has to be carefully curated to respond to an individual student’s needs.[141] There is no guarantee that students will read the feedback given, which is again why multiple rounds of essays are more effective – to incentivize learning.[142]

Despite popular conception, the essay might not be the most effective way to critically engage students. This is particularly true for one-off essays that do not allow students the possibility to improve over time. Used to their full potential, however, essays can empower students to think about the law, its origin, its purpose and its effect. The best essay questions can get students to think for themselves and allow students to think critically about the subject matter: in this case, the law.

3) Reflective Tasks:

When heading Toronto Law School, WPM Kennedy suggested that students pay attention to “what really happens” and the “reality” of law.[143] In other words, what the courts do and how it affects real people.[144] The impact of law on society is something that has historically been undervalued in the law curriculum. Properly understanding the law in this way requires a reflection on the psychological impact of law on real people, the emotional toll of law on real lawyers, and the impact of law on society. This requires a detachment from the case method approach of hypotheticals, and an engagement with the law as a real phenomenon with real consequences in the real world. The best way to do this is via reflective learning.

Reflective learning involves getting students to reflect on their own biases, pre-judgments and their own experiences.[145] In law schools, reflective learning can help students get beyond “surface learning” to a deeper understanding of the law.[146] Students can become “more conscious” of their own way of seeing the law and therefore more “critically reflective” of legal realities.[147] Over time, reflective learning can help students become “life-long learners” – able to continue learning and thinking critically about law after they graduate.[148] But this can only occur in an environment where students are able to challenge their own conceptions and those of their professors, “one in which they can construct their own knowledge framework”.[149] Reflective learning must also occur throughout the curriculum (rather than one-off subjects) to be effective.[150] If reflective learning appears in only one or two subjects, students will be resistant to it, as they will find it irrelevant to the rest of their studies.[151]

In law schools, reflective learning is best integrated across all subjects via various assessment tasks including: reflective statements, journals, peer and self-reflection and reflections on clinical legal placements.

Reflective statements and journals:

Students can be asked to reflect on the law they have learnt in class and present a reflective statement on the law, their emotional response to the law and the law’s effect on society.[152] They can be asked about specific laws and cases, or more generally, about the enforcement of law, the cost of law and so on. If seeking guidance, they should be asked to reflect on the most “critical” aspect of what they have learnt.[153] This could include the emotional impact of law on a particular party, client, themselves, or the role of the lawyer in a case, for example.

A reflective statement is less about getting to a “correct” answer and more about documenting one’s emotions. When reflecting on the emotional impact of law on parties to a case, for example, students should be encouraged to empathize and put themselves in the shoes of the victim or defendant.[154] This involves an engagement with their emotions, morals and values that is usually discouraged in law school, but one that takes learning to a more ‘real’ plane of meaning – learning that is critically engaged with society.[155] It is important that law students learn empathy in the sense that they need to empathize with future clients. But it is also important more generally, as reflection helps build and create interpersonal dynamics (understanding how people relate to each other, talk to each other, empathize with each other).[156] Reflection therefore not only makes law students better students, but also better people.

This flows on to reflective statements that concern the role of the lawyer and students’ feelings about that role. One way to get students to reflect about the role of the lawyer is to give them “moral dilemmas that practicing lawyers face” on a daily basis.[157] Writing a reflective statement on the dilemma, students would be able to engage with their own opinion on how they would act in that particular situation. This established in greater detail below under “simulations”. It has been argued that “the best lawyers are guided by a strong moral compass”.[158] One way of gaining said moral compass is through reflection on the ethical and professional role one is going to serve in their working life. University is the best time for this reflection, before working life has even begun.

A one-off reflective statement in class however, is insufficient in creating a deeper reflective process. Typically, a proper reflective requires students to “grapple with an issue, share it with others” and come to a new understanding.[159] This requires a lengthier deliberative process, or in other words, a longer thought process about the task at hand. Multiple reflective statements over time, or a reflective journal, as suggested below, might be a more effective way.[160]

This is where long-running reflective journals come in. Instead of being given a one-off reflective task, students can be asked to create reflective journals about the law and their experience learning the law.[161] These multiple tasks allow a student to look back at their opinions and how those opinions or emotions change over time.[162] The format of these longform reflections is not necessarily important, they can be “learning journals, logs [or] diaries, structured or unstructured”.[163] What is important is that students engage in a deliberative, reflection process over time and learn something from these multiple entries.[164]

The Council of Australian Law Deans have proposed the following example of a reflective task[165]:

Complete 250-word weekly reflective narrative writing tasks related to lecture/tutorial materials such as:

law in context, or

specific skills displayed in performance of a task such as writing/group work/study skills, or

practical legal knowledge (substantive law and procedures) and write an answer to tutorial problem.

This example focuses mainly on professional skills, but a very similar reflection exercise can be applied more generally to a student’s emotional impressions about the law itself. One area where this is pertinent is in controversial or emotionally-charged areas of law. Students might want to reflect on their emotional reaction to politically charged legal issues, cases, legal technicalities and whether or not they view the outcome of a case as just (this will be discussed in further detail below). These opinions might indeed shift across the course of a semester or a three-year degree, and students can thereby understand their own positions, biases and prejudices regarding the law.

Peer and Self-Reflection :

One of the most difficult aspects of reflective tasks is that they need to be free from judgment. In order to reflect honestly, students need to feel “free to say things which might otherwise appear stupid or ‘un-cool’”.[166] This might include an emotional reaction to a case or law, a novel idea about the role of a lawyer and so on. This requires the right sort of environment in class, one that is “conducive to quality discussion”.[167] In this sense, the typical assessment marked by a tutor or professor might not be the best approach to reflection. Instead, students could be asked to assess their own work or that of their peers.

Peer and self-reflection are similar to a typical reflective statement, only the marking of the assessment is done by students themselves.[168] In peer reflection, students “can compare notes with each other, learning how different people can reflect on the same law or the same experience in a different way.[169] This can deepen the reflection process beyond what students can do as individuals.[170] Self-reflection, by contrast, gives students the benefit of anonymity, to reflect back on their own experiences and mark themselves on the quality of that reflection.[171] Self-reflection is an essential life skill that helps students find “creative responses to complex problems”.[172] Whether through self or peer reflection, the task can benefit from repetition – either allowing the student themselves to track their own change of opinion over time, or for the class to understand shifting attitudes to the law and the role of the lawyer over time.[173]

Self-reflection is most useful for topics that are emotionally charged and difficult to discuss in the wider classroom environment.[174] For example, rape law has historically been avoided by tutors and professors in law school out of a general “discomfort” with discussing the topic.[175] There is a fear that students in class may have been victims of sexual assault and that they might be “triggered” with flashbacks from any discussion.[176] The rise of “trigger warnings” at places like Oxford law school has in part, addressed this concern.[177] A trigger warning is a warning, prior to a discussion, that a certain topic might make students uncomfortable.[178] At Oxford law school, students are given trigger warnings prior to discussions about rape law and sexual consent.[179] It may be argued that these topics are unsuitable for a classroom discussion – in which case self-reflection offers a way out; a way for students to reflect on a topic by themselves, in a non-confrontational manner. Students can be asked to reflect about laws on rape and other emotionally charged issues at home, through assigned reading and self-assessment, while discussing fewer distressing topics in class.

Another way to assess self and peer reflection is via clinical legal education. Students who work in legal clinics during their time in law school can be asked to reflect on their experiences at the clinic.[180] This can involve asking questions to themselves and to others about their role in the clinic, the effect of law on their clients and the emotional impact of law on their clients.[181] Clinical legal education lends itself to this reflective process much more than regular class due to the firsthand nature of students encountering the legal system in practice. Group discussion can also occur with other students who are completing similar legal clinic placements. Comparative group discussions of the clinical legal education experience can reveal new insights that students would not have come to themselves and allow for social bonding over shared lived experiences.[182] In terms of assessment, students can be asked to create reflective journals of their clinical legal education experience, reflecting on how their attitudes to law, the role of the lawyer and their clients changed over the course of the placement.[183]

The limit of the clinical legal education approach is typically the same everywhere: the small number of students involved. Even in law schools with established legal clinics, very few students end up being selected to take part in the program.[184] These students are also frequently selected under specific criteria that make them unrepresentative of the student body as a whole.[185] Hence, while it may be the best venue for peer and self-reflection, clinical legal education provides only a limited opportunity to engage the student body.

4) Law Reform Tasks:

Instead of accepting the law’s authority at face value – law students should be involved in a rigorous critique of cases, statutes and legal norms.[186] Having properly engaged in legal critique, students can then proceed to pose new law reform measures in class. In the words of WPM Kennedy, “we must turn out graduates in law with a courage to criticise what is accepted”.[187] If we do not do this, corrupt, unjust and immoral laws will continue to exist uncontested by the very people with knowledge of the legal system, graduate lawyers.[188]

To engage in law reform, students can be confronted with questions in class on current laws such as: is the law effective, is the law measuring up to its social aims and is the law just? They should then be asked to come up with new legislative proposals, either in groups or in the form of a mock legislative assembly, debating proposed changes.[189] Not only would this empower students to think critically about the law, it would also teach them significant lessons about the law-making process. Instead of seeing the law as passive or divine, students will learn that the law is flawed but salvageable and that the law can change.

It is worth responding to a common objection here. Opponents of teaching law reform in class typically say that the law should only be criticized by students after they already know the law.[190] This approach, however, is counterproductive. If law can only be criticized by students who already know the law – then legal education becomes a system of reinforcing “an uncritical, authoritarian acceptance of law as a series of rules” while students are learning them.[191] By the time students reach their final year (when critique is viewed as acceptable by traditionalists) the “ideological groundwork has been done,” and the students are already resistant to the very idea of critiquing the law.[192] After spending so many years accepting the law at face value, it is difficult to expect students to suddenly understand how to critique it.[193] Furthermore, law faculties tend to then treat law reform as an optional extra and not essential to student learning.[194] For this reason, it is important for students to be able to critique the law throughout their degree, as they are learning about it, and to propose law reform at the same time.

There are three essential questions for students to ask when critiquing a particular law. These are: is the law effective, is the law matching its social aims and is the law just?

Is the law effective?

According to Justice Halsbury: “every lawyer must acknowledge that the law is not always logical at all”.[195] In this, he means that the law has defects and flaws and can act in a manner that defies logic.[196] When asking whether a law is effective, we are asking whether it matches up to its logical intention. In statutory interpretation, this is often linked to the idea of legislative intent; that the people who created a law have a logical intention of how that law should work in practice.[197] Poorly worded or badly framed legislation will not achieve the effect intended, and thus result in illogical or inconsistent outcomes. Here, we do not concern ourselves with the political aims of a statute (reducing poverty, ending crime and so on, discussed further below), but with a stricter practical consideration of whether the law works. The Law Society of Western Australia provides clear guidance in this regard, presenting a list of features for what makes a law effective (supported by other cited sources).[198] In their words, an effective law is:

Known to the public Acceptable in the community Able to be enforced Stable Able to be changed Applied consistently Able to resolve disputes

This list, although not comprehensive, is a good starting point for our discussion. The first two items (known to the public, acceptable to the community) relate to the rule of law, and the idea that the law should be understood and reinforced by community consensus.[199] Although ignorance is no excuse in the law, it is important for the public to know what punishments exist for breaking the law.[200] The second two points (able to be enforced, stable) relate to the nature of law as a rule that must govern society.[201] A law that is unenforceable is not strictly speaking, a law at all. The last three points relate to the nature of law as a part of our democracy, something that can be changed by consensus, applied under the rule of law, and help to resolve conflict.[202]

A law which fails all of the above points can be called ineffective on the face of it. It is this very kind of law that most requires reform and revision. As a technical point, changing laws that are not effective is not strictly speaking “law reform” but “law revision”.[203] According to the Commonwealth Secretariat, “law reform is about substance, while law reform is about form”.[204] In critiquing whether or not the law is effective, students look to the form of the law and ask questions about wording, structure, framing and intent. This is very different from a typical law reform task, which would look at changing the substance of the law (from a high tax rate to a low tax rate, say, or from one kind of regulation to another). The task for students in “law revision” is to modify the law in order to achieve its original objective.[205] This is closer to the role of a judge when judging statutory interpretation and parliamentary intent, than it is to a politician who proposes a brand-new law.[206] The latter will be discussed in greater detail below.

Is the law living up to its social aims?

The second way of approaching law reform is to get students to consider a law’s social aims and whether the law is living up to those social aims. WPM Kennedy suggested that legislators frequently fail to achieve the social aims they seek by ignoring unintended consequences of the law, and various “social implications” of the law they are drafting.[207] It is up to law students, in Kennedy’s view, to correct the legislator through a critique of the law.[208] If the legislator has failed to achieve a social aim, then the critical law student must ask: how can that aim be achieved with law reform? Kennedy outlined this idea as follows:

We take each concept, each rule, and we bring it, not before a court of justice but before the court of social purposes and we ask how far it is serving society. Here the student comes full force… and here he sinks or swims.[209]

The student is tested not on whether they know the law, but on whether the law is matching its social purposes – and it here that they “sink” or “swim” in terms of the marks they will receive in assessment. In creating this style of assessment, Kennedy was heavily inspired by Roscoe Pound, the Dean of Harvard Law School from 1916 to 1936.[210] Pound was a firm believer in the ‘social aims’ approach to law reform. The primary social aim, for Pound, was that satisfaction of “human needs” or “wants”.[211] This was a modified utilitarian view, analogous to Jeremy Bentham’s utility.[212] However, where Bentham valued happiness or desire, Pound valued human “interests,” a more pragmatic and measurable phenomenon.[213] Where Bentham might ask: what kind of law would make us happy, Pound would ask: is the law serving the interests of humans, is it meeting our needs and desires? If the law failed this precipitous test, it would require reform in order to realign itself with this social aim. Pound admits here that it is difficult to satisfy “infinite human needs” with a finite system of law.[214] The aim of law, however, is to get as far as possible to satisfying as many of humanity’s needs as possible.[215] ‘Social’ in this sense means the satisfying of society – to create the optimal conditions for human flourishing. What constitutes a ‘human need’ is of course, contestable, and it is worth noting that these terms are sometimes quite vague and difficult to pin down. It may well be that different students would come up with different human needs when asked to define the term. In classes on law reform, it would be up to the students to consider what “human interests” and “human needs” a law is failing to live up to in this way.[216] Professors need not dictate exact definitions of this for students, as this can be part of the exercise.

Justice Cardozo, another source of inspiration for Kennedy, offers guidance on how the law can change to meet social aims (once those aims are identified). Cardozo believed that there was a danger in seeing law as static and unchangeable with regards to the social demands of its time.[217] He had a malleable view of precedent, stating: “when the social needs demand one settlement rather than another, there are times when we must bend symmetry, ignore history, and bend custom in the pursuit of other and larger ends”.[218] The law, is “nothing absolute,” and indeed “all is fluid and changeable. There is an endless ‘becoming’” when it comes to law and the legal system, molding to social aims that shift and change over time.[219] Cardozo closely mirrored the Greek philosopher Heraclitus, who believed everything was in a constant state of flux, so much so that, “you could not step twice into the same river”.[220] The law is also seen to be in a state of flux, never to be the same twice, over the course of time.

The task of a law reformer in a state of flux is to understand that the law must change in accordance with social change. Law reforms can therefore be proposed accordingly. For a student, this means understanding the social mores of their own time – and placing the law within that context to discover if it needs to be changed to fit new social aims that did not exist before.

One way to teach a student about the social aims of law is through in-class discussions. At the University of San Francisco, Joshua Rosenberg learnt this the hard way. At first, he attempted to teach his classes by lecturing them about various social aims attributable to classical, black letter law courses.[221] For example, in “tax courses [he] tried to convince [students] that its wrong to overtax the poor and undertax the wealthy; in contracts classes [he] stressed that it’s important to enter into contracts in good faith”.[222] The problem with this approach is that it is too one-sided. By his own reckoning, students became disengaged when simply lectured to about the morality of the legal system.[223]

What is more important is to have a two-sided discussion, where students themselves can think about the social aim of a particular law. If a class is framed around “a commitment to transformation, renewal and justice,” then students themselves can provide the content of what is to be transformed, renewed and made just.[224] Students can be introduced to a problem (e.g. “entrenched hierarchies of power”) but it is up to students themselves to question whether equality is a proper social aim, or whether power is for everyone, or whether a particular law apportions power unfairly.[225] In other words, it is not enough to simply give students the answers. A critically engaged law course allows students to think about the answers for themselves.

It is worth responding to a common objection here. Opponents of teaching the social aims of law often point to the fact that some law is private and aimed at private, not public, purposes. In such a case, the social aim of law is seen as irrelevant. This is flawed in two respects. Firstly, all law, even private law, is made through a public process – whether it be by legislative action or judicial decisions.[226] Therefore, all law is governed by the public interest.[227] Secondly, private law, in governing the relations between individuals, ends up governing the relations between humans in a society at large. The law of tort is about individual wrongdoing, but it is also about establishing a public insurance system that benefits the greatest number of people.[228] Rules of private conduct, conducted en masse, become rules of public conduct. In this sense, “all law is public law”.[229] Therefore, all law should be measured by the public, social aims it serves. As a result, all forms of law are susceptible to the kind of sustained critique required in a law reform class on the social aims of law.

Is the law just?

A final way of approaching law reform is to get students to consider a law’s content and whether the law is just. John Rawls suggests here that “laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust”.[230] It is up to law students, some argue, to correct the legislator’s unjust provisions through a critique of the law in class.[231] If the legislator has failed to achieve a just law, then the critical law student must ask: how can justice be achieved through law reform? To use an example: a law might allow for the keeping of slaves. The law might be well written, easily enforceable, and meet the above criteria (in (a) is the law effective?), but nevertheless, the law will be unjust on the face of it.[232] The task of a law student in a law reform class is therefore to ask whether the law (no matter how effective it may be) is nevertheless unjust.

Unfortunately, the concept of justice is sidelined in most law schools today.[233] As Weinrib puts it: “students are not encouraged to even ponder, let alone develop arguments” on whether the laws they are studying are just.[234] Questions of justice are “routinely marginalized or discouraged” in the curriculum.[235] Students are not meant to suggest alternative laws. Law professors do not even ask students whether the law they are learning is substantively just, nor whether a statutory interpretation is just, nor whether a law “offends a student’s [own] sense of justice” on a personal level.[236] Instead, students are expected to approach the law in a cold, detached manner, separating their ideals of justice from their study of the law. This process in itself can breed a sense of immorality and cognitive dissonance. As law student Xavier Sanchez puts it:

The attitude that surprised me the most during my first semester was the dismissal of the idea that as law students we were to be concerned about fairness and justice… So when my professors told me, maybe only half-seriously, that we don’t do justice here at law school, they were referring to the idea that the student should view the law as the bad man… The bad man does not care that the law is just, but he is interested in what the law means to his material circumstances.[237]

If law school makes students see the law “as the bad man,” then it follows that law graduates may go on to become bad people in society. A common view of the general public is that all lawyers should be concerned with the idea of justice in society.[238] But how can lawyers be concerned about justice, fairness and morality if they are never introduced to the idea in their legal training?

The current status quo exists despite a large craving among the student body for core classes on justice and law reform. A recent survey of Harvard Law students, for example, found that the vast majority of students wanted classes on justice.[239] Students were asked: ‘is it the responsibility of law schools to teach law students about justice?’.[240] The vast majority said yes, it is.[241] One student said that “laws are meaningless without the concept of justice”.[242] Still another said that “the role of a law school is to enable its graduates to advance the causes of justice”.[243] Students, in this view, are meant to graduate as law reformers – able to take their critical eye to the laws around them. Far from seeing the law as something set in stone, students are meant to learn that the law can become just over time.[244] This then falls to the law schools to facilitate this process. In the words of WPM Kennedy:

We must breed a race of graduates in law able to utilise the spirit of law reform for the highest uses… a courage to criticize what is accepted, to construct what is necessary for new situations, new developments and new duties both at home and abroad.[245]

To create a law reform class about justice, it is important to establish what justice actually means.[246] There are many different theories of justice that have emerged over the years. Broadly speaking, they can be split into four schools of thought: procedural justice, distributive justice, justice as capability or rights and justice as human needs. All of these theories come from leading philosophers and legal scholars including Rawls and Dworkin (distributive justice), Nussbaum and Sen (justice as capability), Nozick (justice as rights), Socrates and Pound (justice as human needs). I will briefly address each of these theories in turn, before turning to a discussion on how they can be used to critically analyse the law and promote law reform. These theories are complicated and have entire books written about them, so the following section will contain only brief summaries rather than comprehensive accounts.

I am not arguing here that a student needs to choose one version of justice from the following list, but instead that students should consider various different theories of justice, before deciding whether a law is just or unjust.

i) Procedural Justice

The first kind of justice is procedural justice. Procedural justice can be distinguished from substantive justice (whether an outcome is just). For procedural justice, what matters is the fairness of the process, rather than the fairness of the outcome.[247] Procedural justice will sometimes lead to a just outcome, but this is not always the case.[248] In Australia for example, people have the right to a fair trial (something typically associated with procedural justice), but this does not guarantee a fair outcome once the trial is over.[249] A lack of evidence, a bad law or various other factors could lead to an unjust outcome even if a defendant has the right to defend themselves appropriately.

Procedural justice is closely tied to the law’s legitimacy. If the law is not procedurally just, then it typically lacks legitimacy in the eyes of the people.[250] This is the primary reason why law that is not procedurally just requires reform. Confidence in the legal system and the judiciary is a central plank of a secular, democratic society.[251] When processes such as trials, arrests, sentences and so on are unjust, the law typically moves towards illegitimacy, authoritarianism and dictatorship.[252] Unjust procedures have been linked historically to authoritarian regimes in places like the old Soviet Union, the Philippines and Indonesia.[253] Examples include secret trials, lack of due process, lack of appeals and lack of a fair hearing.[254] In places such as these, the public lose faith with the law itself, fearing any engagement with legal authorities, including the police.[255] Eventually, this leads to a disengagement with the law and a lack of voluntary compliance with the law.[256] If it goes on for long enough, the law’s illegitimacy can disintegrate into a state of civil disobedience and/or revolution.[257]

“But how can I be under arrest? And how come it’s like this?”

“Now you’re starting again,” said the policeman, dipping a piece of buttered bread in the honeypot. “We don’t answer questions like that.”

– An example of procedural injustice from Kafka’s The Trial.[258]

There are many factors that determine whether a law or legal system facilitates procedural justice. A non-exhaustive list includes factors like: transparency, efficiency, fairness, access to justice, due process, the right of appeal, the right to a hearing, neutrality and impartiality.[259] All of these factors can be applied to the decision-making process of judges, to the law itself and the to the ways in which people interact with the legal system via the courts, the police, and so on. The question is whether the process by which people access, use and are subject to the law is one that is procedurally just according to the above criteria. In a law reform class, this can be posed as a series of questions, as follows:

Is the law transparent?

Is the law fair?

Is the law efficient?

Is the law accessible?

Has there been due process?

Is there a right to a hearing?

Is there a right of appeal?

Has the legal decision been made impartially?

This list is of course, not exhaustive. However, it is a starting point for an analysis on whether a particular law, case or legal system is procedurally just or not. It is worth noting here that even if the outcome of a law or case is seen as just, the law can still be viewed as procedurally unjust if the process itself was unjust or corrupted in some way.[260] The integrity of the justice system is more important than specific outcomes, and moreover, the common saying is accurate: a broken clock shows the right time twice a day.

ii) Distributive Justice

The second kind of justice is distributive justice. Here, I consider the wide version of distributive justice advocated by Rawls and Dworkin. In Rawls’ view, laws should be created with the aim of ensuring equality by distributing income and wealth evenly across society to provide for equality of opportunity, but not equality of outcome.[261] Rawls argues that law should be free from any inequalities, unless those inequalities benefit the worst off in society (the poor, the needy and so on).[262] Any law which does not do so can be viewed as unjust. Any law that is unjust should be “reformed or abolished,” in his view.[263]

To determine whether a law is unjust, Rawls poses a thought experiment: the veil of ignorance.[264] The idea can be summarized as follows: imagine that you are born into a room without knowing what gender you are, what class you belong to or any other defining feature about you as a person.[265] When you leave the room, you will be born into the world in your actual circumstances, with a new class, gender and so on. Within that room, you have to decide the rules and laws that will govern society.[266] According to Rawls, without knowing what background or class you belong to, there will be a natural inclination to demand for equality of opportunity between all people, so that you will benefit even if you end up poor and of the lower classes, and not be excessively punished if rich.[267] In other words, you will advocate for equality of opportunity, the idea that you will be judged by merit, not birth. The theory has since been replicated in scientific studies/experiments, although reservations exist on whether the first step (taking yourself outside of your own background) can ever actually occur.[268]

According to Dworkin, the veil of ignorance includes various ‘in-built’ aspects of humanity that help certain people get ahead once the competition starts – such as intelligence, memory, genetic capabilities etc, that go beyond class, race and so on.[269] Therefore, instead of just giving people the same access to resources at the starting line of the competition (equality of opportunity), they should be given the same access to resources continuously (equality of outcome).[270] Continued equality needs to be ensured (or insured, by his logic) beyond the start of the competition through a continual redistribution of goods.[271]

Whether taking Dworkin or Rawls’ view, clearly the law can be analysed from the perspective of distributive justice and determined just or unjust accordingly. There are two points to this analysis, taken from a very rudimentary perspective:

A law can be seen as just if it ensures equality of opportunity and/or outcome between people under the law.[272]

Inequalities in law can only be justified if they benefit the weakest/lowest/poorest of society.[273]

Any statute or case can be analysed under this paradigm. This makes it a useful tool in the hands of students in a law reform class.

iii) Justice as capability and/or individual rights:

The third kind of justice is justice as capability. Here, I consider the version of justice as capability established by Nussbaum and Sen. As opposed to distributive justice, which is about distributing wealth and resources equally, justice as capability suggests that the law should ensure people are capable of certain things.[274] For Sen, distributing resources between people would never work because people are too different from one another.[275] A man who cannot walk, for instance, does not require greater access to certain walker-friendly resources (such as, perhaps parks or running tracks).[276] Instead of providing everyone with resources they may or may not need, Sen argues, we should be ensuring people’s “real or effective opportunities to do what they want to do and be who they want to be”.[277] In other words, justice should protect certain fundamental human capabilities and ensure certain freedoms.[278] Here, Sen suggests that “people should have effective possibilities to shape their own life” and choose the capabilities which are important to them as individuals.[279] He does not specify what those capabilities are exactly.

Here, Nussbaum provides a greater degree of guidance. Rather than leaving it up to the individual, she specifies various specific capabilities that should be protected by the law. These include: life, bodily health/integrity, the senses, imagination and thought, emotions, practical reason, affiliation, play, connection with nature and political and material control over one’s own environment.[280] The aim should always be for “equal freedom”: the idea that people have these capabilities under the law that make them equal to others in society.[281] These capabilities need to be locked down in the legal system – so that, for example, if someone has freedom of speech today they keep it tomorrow.[282] This is why Nussbaum emphasizes the importance of constitutional protections of capabilities, linking a country’s constitution with a country’s freedom.[283]

There are some similarities here with the idea of justice as human rights in international law. In other words, the idea that justice is there to protect the rights (legal, political, cultural, economic) of individuals and groups in society.[284] Instead of measuring justice by means of resources or means, justice is measured on the basis of whether the law protects those individual rights.[285] Law reform, under this rubric, is necessary when an individual’s rights are under threat due to the law, judges or legal institutions.[286] In a law reform class, we might ask questions such as:

Is the law protecting fundamental human capabilities?

Is the law protecting fundamental rights and/or human rights?

If the answer to both questions is no, then the law is clearly in need of reform.

iv) Justice as human needs:

The final version of justice worth mentioning is the idea of justice as human needs. Here, I consider the version of justice as human needs advocated by Socrates and Roscoe Pound. The Socratic ideal of justice in The Republic was the idea that justice sought to meet basic human necessities or needs in order to empower people to fulfill certain roles in society.[287] A just man is someone who fulfills their role in society and thereby attains virtue.[288] He does so by using personal resources for the attainment of justice, wisdom and virtue.[289] A just society is one that encourages individuals to be just in the same manner.[290]

Here, it is worth considering a related view by Roscoe Pound. Pound believed that justice involved the satisfaction of “human needs” or “wants”.[291] This was a similar form of personal justice; the idea that society must create laws with proper social aims, in order to best fulfill the individual’s needs.[292] As established above, in classes on law reform, it would be up to the students to consider what “human interests” and “human needs” a law is failing to live up to in this way.[293] Professors need not dictate exact definitions of ‘need’ for students, as this can be part of the exercise. Students could also consider, via Socrates, whether the laws that exist today enable individuals to be just, wise and virtuous by fulfilling basic human necessities.[294] It might be argued here that unless basic needs, necessities and wants are met – humans cannot reach their full potential. Therefore, the law must help people to reach this full potential by providing the basic necessities of life.

In a law reform class, students could be asked the following:

Is the law fulfilling basic human necessities?

Is the law fulfilling basic human needs?

Various social movements throughout history have sought to reform the law based on the idea of injustice.[295] Common examples include the civil rights movement, the gay rights movement and the feminist movement. These movements have arisen even in highly functioning Western democracies with highly effective legislators.[296] We can conclude from this that every country requires lawyers to examine bad laws, and that law students, regardless of where they are, can be involved in this process.

Step 2 – Reform the Law:

Critiquing the law alone is not enough. A true education requires the chance to build, to create anew. If we critique something as not true, or failing in some way, intellectualism requires that we pose something that is true and something that might, in fact, succeed in its place.[297] After critiquing the law according to the criteria above ((1) Is the law effective? (2) Does the law meet its social aims? (3) Is the law just?), students should be empowered to suggest new law reform, amendments or the abolition of existing law.

Law students are in a prime position to play this role in our society. Law graduates go on to become some of “the most influential policy-makers,” entering roles in government, business and politics.[298] They work as “administrative lawyers, executive branch lawyers, legislative aides or legislators”.[299] Hence, law schools have an obligation to prepare law graduates for the role they will play in shaping the law and reforming it accordance with the social, political and legal demands of their time.[300] It might be argued that upon graduation, “every lawyer should promote justice”.[301] To do so, they have to ask questions on justice in class.[302] Law school is the primary opportunity to teach students that law must be reformed to become an instrument “in the service of mankind,” rather than an instrument for personal enrichment.[303] Students, upon graduation can take a leading role in this regard, developing new ways of thinking about the law, new ideas and new plans for how the law should work for society.[304]

“New standards must be developed in all fields of human endeavor which will be in harmony with the new social philosophy of the age… the legal technique and mastery necessary to cope with these new demands have been unable to keep pace with these theories.”[305]

So how is law reform to be taught in a law school? One suggestion is to give students an entire class on law reform, where they enact the critique above, before being assessed on possible ways of reforming the law. Giroux suggests a research-heavy subject, where students conduct “critical research” on a given law “within the realm of social justice”.[306] This can be completed in a group, before group members come together to collaborate on a new law.[307] Professors can facilitate this process through in-class discussions over “the substantive justice of whatever piece of law is under review,” along with discussions of effectiveness and the social aims of law.[308]

Whilst this process might at first appear “chaotic,” it is important to remember that law schools already do this with regards to “public policy”.[309] Students are already allowed to propose new policy reasons for why a law might be innefective, or to investigate the policy reasons behind a law.[310] Hence there is no reason why this cannot be done with the broader theme of law reform.[311] Law students could also be asked in class to look to the history of a particular law in order to understand it in context – this can then inform their reform initiatives in a manner similar to a public policy debate.[312]

Another way to teach law reform is by creating a mock legislative assembly. In a mock legislative assembly, students would act as politicians and legislators – arguing over proposed law reform and suggesting alternatives.[313] One such assembly existed at the first American law school, the College of William and Mary in Virginia.[314] Under the leadership of George Wythe, the college established a mock legislative assembly at the school, where students debated legislative proposals, proposed amendments and law reform and learnt about legislative procedures, all while Wythe acted “as speaker of the house”.[315] He trained students to read further in the fields of government and public policy, which they then used in the assembly to argue over bills.[316] Students not only learnt to propose laws, but they learnt the procedures of government, law-making and legislating – all of which are crucial components of a legal education.[317]

Finally, Giroux suggests an even more radical alternative: that law students be formed into committees to actually advise government regulatory bodies.[318] Paired up with supervisory professors, students could form groups to “engage in research and provide recommendations for actual legal reform”.[319] They could be assessed on the research component of their work, whilst simultaneously providing a public service and engaging directly with the law-making bodies of government.[320] This is the “clinical legal education” version of law reform – one which is at once immensely practical and yet useful in developing a student’s conceptual understanding of how the law can change in response to certain political, legal and social forces.

5) Small Class Sizes:

One of the essential components for any of the above teaching methods is a small class size. Small classes are often directly compared to large 200+ person lecture halls, with personal, individualized learning on the one hand and dehumanized, detached learning on the other.[321] The personal, small class approach is seen as essential for a critical, liberal arts education.[322] Professors teaching a handful of students are able to “devote sufficient attention to each one so as to fully explore and develop his or her intellectual abilities”.[323] This can lead to an acquirement of knowledge and cognition that far exceeds that achieved in traditional lecture halls.[324]

One example where this has proven accurate is with WPM Kennedy at Toronto Law School. In the 1930s, WPM Kennedy insisted on adopting a small class for the teaching of his liberal arts curriculum in law.[325] He had “few if any formal lectures,” and instead opted for working “at problems in small groups with students”.[326] According to one of his students, classes would consist of “12 or 14” people, taking place in Kennedy’s personal office.[327] Students would be given topics to work on for the next week, and they would come back a week later to present a paper to the class.[328] This paper was then criticized directly by Dean Kennedy, and questions were asked by him and other students.[329] The students benefited “enormously from the intellectual discussions that took place” in these small classes.[330] Indeed, they were the kind of discussions that are simply impossible in a large lecture hall. Kennedy also ran a Law Club once a month, “at which an expert lawyer or jurist” presented a problem for an hour before holding a discussion with the students”.[331] This was not a club for academics or PhD students alone, but was open to all law students in the student body.[332] Guest speakers included Dean Roscoe Pound of Harvard, Professor Manley Hudson of Harvard, Owen Dixon (future Chief Justice of the High Court of Australia) and lawyers J.J. Robinette and Joseph Sedgwick.[333]

It is worth noting the similarities between Kennedy’s approach to small classes and that of Oxford law school. Oxford has a long history of limiting its classes to 1 – 3 students for undergraduate tutorials, something that is unheard of at other universities.[334] Like Kennedy, at Oxford, students write papers each week which are then looked at in tutorial by professors and other students.[335] While larger classes take place for seminars and lectures, the cohort of an entire LLM year group, as an example, is only 50 students.[336] Only 42% of Oxford students as a whole have one hour of class or more each week with over 100 other students in the class.[337] Small class sizes of this nature can drastically increase student satisfaction with their courses and reduce the feeling of alienation and isolation on campus.[338] However, for small classes to be effective, professors need to adopt teaching methods that suit that environment.[339] Merely lecturing to a smaller class is an ineffective technique.[340] Personal, collaborative styles of teaching can be the most rewarding in this environment, and can most benefit students who want to think critically about their education. It is also worth noting that while such class sizes might be possible at Oxford and Cambridge, less prestigious universities struggle to reduce class sizes to below 30, let alone 1 – 3 students.[341]

In Australia, UNSW Law School has led the way in achieving smaller class sizes. Classes in undergraduate law typically have between 30 – 44 students, and there is an increasing focus on trying to limit the number of large scale lectures.[342] On the other hand, Sydney Law School increased its class sizes from 40 to 70 in 2007, off the back of increased demands from students wanting to study law.[343] At the time, the increase in class size was condemned for limiting the amount of personal time each student would have with their professor.[344] There remains ongoing tensions in Australia over class size and the effectiveness of teaching. In 2017, for example, the University of Queensland cut the intake of new law students in order to reduce class sizes, from 235 to 185 students per year group.[345] According to the dean, this was to facilitate “small group teaching” and a more personalised learning environment.[346] A similar claim was made by the dean of Notre Dame law school, which has an average class size of 31 students.[347] The dean explained his reasoning as follows:

An essential requirement of any lawyer is the ability to consider and explain an argument. This is a skill which is difficult to foster in huge lecture theatres overflowing with students.[348]

Australian law schools are joining a broader, global movement towards “reducing class size” and encouraging “interactive” forms of teaching.[349] In recent years, Harvard and Columbia law schools have reduced their year cohort size from 120 to 80 students.[350] There is a broader push amongst various law schools in America, including Vanderbilt, to reduce class sizes and focus on “problem-orientated pedagogy” in small classes.[351] Some of this is intentional, while some of it has been the result of various economic crises (and the student debt crisis in America), making law school a less promising option for students, decreasing enrolments and thereby decreasing class size.[352] The smaller classes in Connecticut law schools, for example, are forcing a renewed emphasis on experiential learning, practical learning and clinical legal education.[353]

However, the principle benefit of small class sizes is that discussed above – the opportunity for in-class discussions and debate on the law. With smaller classes, students would be empowered to question the law more frequently, pose objections and critique legal norms.[354] The smaller the class, the freer a student can feel to express their opinion, to get feedback from the professor and to debate with other students in the class.[355]

6) Roleplays (Real and Virtual) in Law Schools:

Another alternative method of teaching law is via simulation or roleplay, a style of teaching which can both enhance critical thinking and a student’s capacity for empathy.[356] A simulation or roleplay is a class activity where students act out a given role in class. Law schools are brimming with simulation activities, including mock trials, treaty negotiations, model UN assemblies and mock legislative assemblies. Typically, roleplays and simulations have been used solely for the teaching of job-related skills.[357] The Inns of Court in London, for instance, held ‘mock trials’ as early as the 14th century, to teach students the practical skills involved in litigation.[358] The College of William & Mary in Virginia held mock legislative assemblies in 1779, to teach students the practical skills of political governance.[359] Today, law schools around the world are going beyond vocational skills training to experiment with the use of digital technology to create new, virtual simulations that teach non-technical skills. This includes the use of gamification, virtual reality and augmented reality.

In this section, I argue that simulations should be used for their broader potential to teach students ‘human-orientated’ skills. These include the skills of empathy and compassion. They also include imparting the knowledge of the origin of law and the effects of law on society. I argue, in part, that simulations are unique in their capacity to engage students in the ‘real world’ effect of law, unlike other, traditional teaching methods.

Historically, law schools have used simulations as a form of vocational skills training, without much regard for their other potential uses. Generally, simulations have been seen as a means of getting students to ‘act out’ the part of a lawyer at work.[360] Mock trials for example, involve law students acting out the role of an attorney for a defendant in a hypothetical, fictionalized case. Frequently, law simulations (like mock trials) are said to help students tackle real-world work-related problems.[361] A student acting out the role of an attorney in a mock trial, for instance, gains real-world knowledge of the practical skills involved in litigation; preparing for court, making arguments in court and posing objections to opposing counsel in court. They do so without posing any risks to clients or law firms.[362] Simulations are therefore a safe way to practice and hone professional skills.[363] Indeed, “simulations are employed to a greater extent in the vocational institutions where emphasis is placed on advocacy, negotiation and arbitration skills,” rather than soft skills like communication or critical thinking.[364]

Little thought has been given to the potential for simulations to go beyond vocational skills training to a more theoretical or abstract level – to the bestowing of empathy, compassion or ethical integrity. The American Bar Association mandates that all American law schools offer “one or more experiential courses” including a “simulation course”.[365] Simulation courses are expected to teach students “doctrine, theory, skills and legal ethics”. [366] The Australian Council for Educational Research suggests “that experiential learning allows students to develop a better awareness of the workplace and how it relates to… academic learning”.[367] In each case, simulations are viewed as mainly beneficial for training students for their future jobs.

In 2011, the Carnegie Report made clear that vocational skills training in law school is not enough.[368] Law students also need to “consider their professional identity and social and ethical values”.[369] The teaching of values can occur via simulated experiences of professional situations. Students could act out a professional role in class and receive feedback from professors as to the way they enact that role (either ethically or unethically).[370] Roleplaying in teams can get students to realize “the need for trust and mutual respect [between colleagues]… aspects of professionalism that are rarely [seen] in the conventional legal curriculum”.[371]

Simulations can also teach students to be “reflective” about their professional role.[372] Not only about their own work but the role of the “prosecutor, the defence and the judge” in the courtroom.[373] By roleplaying as each of these different parties, students can become more objective about how the different parties to a legal dispute interact. While taking on one role could encourage subjectivity and bias, taking on multiple roles gives students a broader, clear picture of how the legal system actually functions.

At their best, simulations can go beyond critical thinking to raise questions about the effect of law on real people. In one relevant example, Professor Richard Ingleby created a simulation of marital disputes in family law. Students acted as parties to the marital dispute.[374] This helped them understand how family law affected real families. Ingleby’s simulation highlighted “the role of the legal profession in out-of-court activity”.[375] Technical skills are important, he suggests. But how should lawyers behave when dealing with complicated emotional circumstances? How should lawyers comfort a client who is currently going through a difficult divorce? These tough, psychological questions rarely get answered in the traditional curriculum. One way to answer them is through simulated roleplaying.

Simulations can also help teach students about the role of law in broader society. According to the 2003 Carnegie Report, simulations “are effective in developing students’ civic and political knowledge, civic and political skills and civic attitudes”.[376] By simulating the political process, for example, law students can gain an understanding of the origin of law, the creation of law and debates about law reform. This can heighten their civic and political knowledge, whilst teaching them valuable skills of critical analysis and communication. As an example, an American simulation called CityWorks, aimed to teach high school students their constitutional rights.[377] Researchers on the project initially found that high school students were bored by civics, which they felt was irrelevant to their lives.[378] By running a civics simulation, however, they managed to engage students in a form of “participatory citizenship,” which made students more interested in serving their community.[379] Projects like this could restore the idea of a lawyer as a ‘public servant,’ there to uphold the law for society.

Any situation where political parties agree to negotiate on the terms of a law or agreement can be turned into a class simulation, for example, in the case of international law treaties.[380] By simulating a political process, students become aware that that process exists – and that it creates law. A treaty agreement can be acted out in a classroom as a form of role-play, where students get to see how both sides of a negotiation use political and legal arguments to argue their side of the case.[381] The resultant legal document is revealed to be an outcome of the political process established in class. Law students learn that law has an origin, that it can be changed and that it can be reformed.

Simulations can also teach law students about social justice, empathy and compassion for another’s point of view. Indeed, social justice “simulations posit specific social justice problems, such as the detention of a political dissident or the introduction of regressive media laws”.[382] In a recent example, students in a law class learnt about the real-world process of lobbying for law reform, with regards to self-determination in West Papua.[383] Law students played the role of stakeholders to the dispute. Exercises included: tactical mapping, fishbowl interviews and lobbying/protesting.[384] Tactical mapping involved receiving a newspaper article and identifying local actors, discussing the nature of the actors’ relationship and coming up with tactics that each group would try on particular stakeholders Fishbowl interviews involved mock interviews about human rights violations. Role Play was used extensively in these tasks, allowing students to represent particular stakeholders to the legal crisis: e.g. NGO groups, government groups etc. Fake protests were conducted too, to emphasize the social element of law.[385] In no other law classroom would a student gain an understanding of so many stakeholders, how the law affects them and how they each, individually seek law reform.

It is this process of placing students in a stakeholder’s shoes that best exemplifies how roleplay builds empathy. In another relevant example, Horan and Taylor-Sands created a “Litigation in Action” project – a simulated dispute resolution on DVD.[386] Students were separated into groups and shown a video clip on alternative dispute resolution theory.[387] They were then tasked with roleplaying a stakeholder to the dispute, including the “client, lawyer and/or mediator”.[388] Students were shown to be more “lively” in class than usual, after watching the video clips, including students who did not normally participate.[389] The interactive nature of the simulation made students interact with each other in a more social way.[390] In the end, students gained a greater understanding of ADR, stakeholders and a greater empathy for those undergoing the ADR process. This mitigated the usually “dry” task of teaching civil procedure, and in fact, taught students much more than technical knowledge alone.[391]

Virtual Learning Environments/Video Games as Simulation:

A virtual simulation is a simulation that takes place in a virtual environment, on computers, online or in a video game. Examples include refugee simulations, prison simulations and courtroom simulations.[392] Virtual simulations have an even greater capacity for teaching empathy, compassion and an understanding of the effect of law on society than physical simulations – because they take students into the virtual body of a stakeholder. Virtual simulations have been shown to increase empathy towards outsider groups, such as refugees.[393] The immersive nature of new, virtual technologies – such as virtual reality and augmented reality assist with this process. [394] By taking students outside of their own bodies (visually, through audio and film), they allow students to speak, explore and act as someone else. [395] This gives students an understanding of the ‘day in the life’ of the person they are embodying.[396] In the case of a refugee, a divorcee or a criminal, this can be a very humbling experience – understanding the very human reality of law. This leads students to a greater capacity for empathy towards their future clients.

Historically, law schools “have been slow to integrate new technology in the classroom”.[397] This is despite widespread studies done by law academics about the benefits of new technology. [398] As early as the 1990s, law academics began researching the use of virtual environments for the teaching of law.[399] Sutherland, the inventor of computer graphics, foresaw the possibility of these kinds of simulations as early as 1963.[400] The advent of computers was meant to transform legal education away from books and towards digital experiences.[401] Students were meant to become digital natives, plugged into a vast hoard of knowledge from around the world. Very few of these dreams and aspirations became a reality. Today, it is relatively rare for law schools to use virtual simulations.[402]

At the same time, there is a growing awareness of the capacity for virtual simulations to go beyond the traditional curriculum.[403] Simulations are more engaging than traditional instruction by lecture, tutorial or rote learning.[404] They are experiential, and allow students to experience the difficulties faced by lawyers.[405] Simulations help test whether students have internalized knowledge from the classroom.[406] Role plays can create exciting environments where students feel more personally engaged with, and related to, the processes of legal decision-making, current legal issues or moral and ethical dilemmas.[407]

There are a few law schools that have attempted to create virtual simulations – often for very vocational uses. In the 1990s Paul Maharg was involved in an early experimental virtual law world called “SIMPLE”.[408] SIMPLE stands for SIMulated Professional Learning Environment.[409] The simulation placed students in the virtual world called “ardcalloch,” a place filled with legal disputes and frustrated litigants.[410] Students are tasked with negotiating “pre-litigation settlements,” “carry[ing] on legal research” and representing clients.[411] It was very similar to a legal clinic, including the fact that students were supervised by actual lawyers.[412]

Although SIMPLE was established as a vocational project (to teach students about the job of being a lawyer), it had a significant side effect: teaching students how to be ethical.[413] Students learnt the ethics involved in “gathering and disclosing information relating to a client” and gained experience in “practice-based ethics”.[414] They also learnt, in terms of “values and attitudes” what it meant to be a solicitor in Scotland at the time, simply by “interacting with [virtual] clients [and] modelling themselves on their practitioner-tutors”.[415] Practical mentorship from lawyers on the exercise gave students important lessons in professionalism, courtesy and client service – all of which would be seen as vital ‘soft skills’.[416] The SIMPLE project revealed that virtual simulations can go beyond vocational training towards the training of soft skills in law students.

In another relevant virtual simulation called PAJD, two online virtual law firms were established.[417] Students were given the task of acting as lawyers in these virtual law firms. They were introduced “Students were introduced to ‘practice activities’ typical in legal firms such as meeting partners to discuss files and take instructions, an