Elite Machines What are the problems with Australian legal education that cause student depression and

dissatisfaction and how are they best addressed? The genesis of this paper is as a result of the observation of the heavily doctrinal focus of law degrees within Australia and more generally and how this affects student well-being and ultimately student outcomes.

Two questions What does society as a whole want lawyers and judges to do? and Why do law students choose to study law specifically? must be answered by law schools. The obvious corollaries to these questions - What do law students expect to gain from their law degree? (this may seem like a subtle distinction I will elaborate on this point later on) and What does role does the law school play in the legal profession? must also be answered. The second question, regarding the roles of lawyers and judges in society is hugely complex. However, if we look at it through the lens of the types of assessment within law schools we can see the types of skills that law schools teach as well as the ethics imparted and asked to be grappled with. Twining, in Law in Context makes uses a metaphor that makes elucidates the distinction between the two dominant conceptions of lawyers' roles a lawyer is in this conception either Pericles (the lawgiver, the enlightened policy-maker, the wise judge1) or a plumber (a master of certain specialised knowledge..and certain technical skills2). This distinction is a way of applying the types of perceptions of lawyers will hopefully be reconciled somewhat below. How does this distinction between the plumber and Pericles apply to the earlier question as to why law students study law? Plumbers aren't generally experts on the importance of the role of plumbing to peoples' lives, the role of sanitation in society etc. To make a bald assertion, plumbers don't usually become plumbers because of their passion for these outcomes of their profession. Lawyers on the other hand, are much more likely to enter the legal profession due to their political or moral concerns.3

1 William Twining, Law in Context, (Oxford University Press, 1997), 64. 2 Ibid. 3 ANU Law School Reform Committee, Breaking the Frozen Sea, 7.

Twining develops four ways in which legal education needs to be expanded,4 his first similar to the above questions regarding the place of lawyers in society, the second regards the rigidity of assessment, the third whether lawyering can be taught at all and the fourth proposes a systemic study of the legal education system. With these questions in mind I will analyse a number of proposed solutions from the perspective of educators, students and professionals in order to come to a conclusion as to the state of thinking in legal education and analyse the effectiveness of these positions. Goals There are three main areas of legal education, that are required Graduate Attributes that are extremely important but difficult to implement, being those of communication skills, legal ethics5 and critical thinking.6 Communication Students involved in the ANU Law School Reform Committee's report lamented the lack of opportunities to learn effective communication techniques7. This attribute is going to be addressed by emphasising the centrality of rhetorical devices to legal argument. Ethics Ethics are a very important Graduate Attribute to teach as there are perceptions within and beyond the legal academy that the ethical competencies of legal graduates...do not meet acceptable standards. Ethics are by nature difficult to define (for example they do not simply constitute professional practice responsibilities8) and teach as they can be divisive and necessarily contain concepts and ideas that are not a matter of consensus. The specific tools outlined below, the emphasis on rhetoric and deep case analysis as building blocks of a legal education allow for incorporation of ethics more easily than doctrinal approaches while still leaning heavily on the substantive law as the source of the ethical issues discussed.

4 William Twining, Law in Context, (Oxford University Press, 1997), 82-87 5 Sally Kift, Michelle Sanson, Jill Cowley Penelope Watson, Excellence and Innovation in Legal Education (LexisNexis Butterworths, 2011), 99. 6 Ibid., 69. 7 ANU Law School Reform Committee, Breaking the Frozen Sea, 26. 8 Michael Robertson, 'Embedding Ethics in Law Degrees' in Excellence and Innovation in Legal Education (LexisNexis Butterworths, 2011), 99.

Criticism Criticism, particularly critical theory as it relates to law, being the analysis of legal texts and how their interpretation by judges is ultimately justified is an obviously difficult issue. There is an approach offered by Nick James9 that gives an example of the types of levels of analysis that need to be taught which is expanded below in the specific notion of deep case analysis as a technique. Criticism is also tangentially taught by the premises that allow for rhetorical use of the law as outlined in the discussion below. These two foundational skills interact with each other in that in teaching rhetoric as the mode of legal argument and teaching deep case analysis both relate to the usage of an expert application of legal rhetoric in specific circumstances. Skills Rhetoric The common behavior of mankind is the system of reference by means of which we interpret an unknown language. - Ludwig Wittgenstein. The Law School Reform report makes an important distinction between professional skills and vocational skills, arguing that vocational skills will 'dumb down' legal education.10 Professional skills, such as rhetoric, particularly with regards to precision in communication were highlighted.11 The importance here is that rhetoric, and learning how to use legal reasoning as a tool to accomplish ends is essentially a more widely applicable and valuable skill than merely knowing the content of the law. These ends in themselves do not even need to be taught for rhetoric to be an effective tool. Communication is about understanding of an audience and being able to impart information to that audience or to convince it of a position at the most basic level. A basic example of this type of rhetorical strategy is the use proper names for one's own client in a courtroom and to use the generic term (e.g. plaintiff, defendant) for an opponent. This basic kind of psychologically influential rhetorical manoeuvre is often not systematised, but rather haphazardly alluded to. There are of course optional subjects within law degrees that deal with communication, and the

9 Nick James, 'Embedding Graduate Attributes within Subjects: Critical Thinking in Excellence and Innovation in Legal Education, above n 8, 83. 10 ANU Law School Reform Committee, Breaking the Frozen Sea: The Case for Reforming Legal Education at the Australian National University College of Law (Report launched 29 March 2011) <http://lawschoolreform.com/files/lsr_breakingthefrozensea.pdf>, 11, also: Margaret Thornton, Privatising the Public University: The Case of Law, (Routledge, 2012), 100. 11 ANU Law School Reform Committee, Breaking the Frozen Sea, 26-27.

question as to whether these should remain optional is a live one.12 The optional nature of these components is interesting as one of the justifications used is that some students may not intend pursuing employment in the legal profession.13 (it is conceded that negotiation and dispute resolution are seen applicable to other areas). This argument appears to be at odds with the required learning of much of the substantive material within the law degree. If a law degree must accommodate students not intending with regard to specific legal skills, skills such as oration in the form of mooting or negotiation and dispute resolution, even compulsory clinical practice would easily be more applicable across a variety of professions than specific legal knowledge is. Knowing your audience when communicating is yet another valuable skill that the legal professional can use, but that is very difficult to account for in teaching. An extremely skilled legal advocate is going to use the knowledge that they have of the composition of a court, their dispositions, pet peeves etc. to their advantage this is in and of itself then a valuable skill. The teaching of the positive use of rhetoric as a means of achieving goals in the legal profession or otherwise is a means of eliminating many of the negative aspects of critical theory14, whilst still allowing for the questioning of doctrinal certainties. The centrality of rhetoric to the legal decision making process is emphasised by thinkers such as Stanley Fish15, who essentially disregards the dichotomy between doctrinal black letter law and the absolutely relativistic the critique of the critical legal studies movement, instead seeing the law not as philosophical discourse, but rather as situational, practical problem-solving based on evidence. In this sense law can be viewed in a similar fashion to Wittgenstein's view on language in that we cannot define any aspect of it entirely satisfactorily (words do not have fixed definitions), but we nonetheless use it all of the time. This non-mechanistic way of viewing legal discourse is seen by Fish as liberating and productive in that it does not preclude either the functioning of the legal system as it stands, or criticisms of the legal system. Once a law student, lawyer or judge has based enough of their self worth, their understanding and simply spending enough of their time analysing legal problems they start to internalise these processes as integral to their identity and personality such that ideas like critical theory become such an attack on their entire existence, on the idea that there can be anything of worth at all. An
12 Sally Kift et. al., Excellence and Innovation in Legal Education, above n 8, 44. 13 Ibid. 14 Harry T. Edwards, 'The Growing Disjunction between Legal Education and the Legal Profession', (1992), 91(1) Michigan Law Review, 34-78. 15 Gary A. Olson, Justifying Belief: Stanley Fish and the Work of Rhetoric, (State University of New York Press, 2002).

emphasis on rhetoric is beneficial in that it is not only a practical skill but also a means of incorporating ethics into legal education. If lawyering is a rhetorical game of sorts16, then the teaching of rhetoric thus facilitates the discussion and framing of legal ethics. However, there is a clear disjunct here if black letter, doctrinal law is viewed as having an inherent logic to it, then accounting for varying dispositions, methods of interpretation, even areas of interest of particular decision makers is clearly problematic, not to mention much more difficult. Here the dominant strategy requires a certain degree of generic deference to convention in order to achieve an impression in the reader of a lack of agency and a diminution of the identity of the speaker. This is highly problematic as it divorces the student from a recognition of their identity and agency which in turn results in an inability to use psychologically effective rhetorical strategies. This mode of discourse evokes Foucauldian ideas regarding the internalisation of powerdynamics.17 The medium with which law students are forced to express themselves in this way constitutes a process that eliminates their agency. This relates back to rhetoric in an interesting way, in that certain types of rhetoric are viewed as appropriate for legal discussion and other kinds are viewed as inappropriate. This type of self-negation, might help to explain the feelings of students cited in the report18 - particularly the statistic that only 38% of the students in the study identified as feeling better about themselves.19 Black letter assessment of law also tends to place a great emphasis on brevity, efficiency, clarity and speed in coming to conclusions. While this is clearly an important facet of the legal process, particularly when billable hours are instituted and a great weight of expectation is placed upon efficiency within the profession. This is yet another facet of legal education that can cause students to become disillusioned.20 An emphasis on speed over reflection engenders a simplicity in the reasoning process of law students. While this is obviously a useful skill working under pressure it causes a lack of reflective capacity,21 or at very least a lack of appreciation of reflection. This relates back to the problem of depression within law schools depression is dominantly seen by psychologists being characterised by learned helplessness.22 The repeated exposure to situations
16 Jack L. Sammons, 'The Radical Ethics of Legal Rhetoricians', (1997), 32(1), Valparaiso University Law Review, 93103. 17 Matthew Ball, 'Foucault Goes to Law School : Using Foucault to Examine Australian Legal Education,' (2009) (Paper presented at Foucault : 25 Years On, 25 June 2009, University of South Australia, Adelaide. 18 ANU Law School Reform Committee, Breaking the Frozen Sea: The Case for Reforming Legal Education at the Australian National University College of Law, 58-61. 19 Ibid, 58. 20 21 Sally Kift et. al., Excellence and Innovation in Legal Education, above n 8, 81. 22 Massimiliano Tani and Prue Vines, 'Law Students' Attitudes to Education: Pointers to Depression in Legal Education and the Profession' (2009), 19(3), Legal Education., 6.

that beg for either knee-jerk emotional reactions or contemplative reflection and the requirement that the student does not either become agitated emotionally or diverge into ethical discussion as a matter of efficiency, causes law students to feel unable to express themselves effectively. A sense of agency can be regained if legal analysis is taught as a skill that can be used instrumentally to service the desires of the lawyer. The distinction being made here is that the unpacking of a legal scenario as a problem to be solved is an unhealthy way of looking at a legal scenario, a method of analysis based on the student's desired outcome that takes into account the legal realities would be more helpful. Regardless of the real ability of a point to be won, the tools, legal and rhetorical need to be emphasised. Deep Case Analysis This is a more specific example of a method of instruction that balances the doctrinal and the critical by jettisoning a breadth of knowledge for a method of acquiring information. This is an analysis of the way in which Patrick Keyzer's conception of deeper case theory23 addresses many of the problems above. An in depth analysis of the reasoning of judges use in cases is one of the best methods of addressing both the development of a coherent and practical skill-set24 as well as giving a location for the meta-analysis of legal reasoning. One way that this can be done is by basing at least some of the assessment in compulsory courses on in-depth analysis of a single case and the different judges' reasoning methods within it. The thinking behind this is that, for one thing, cases by necessity include the authorities in the area of law and elucidations of the rules and application by either analogy or distinction. Judges grapple with precedents in the same way that lawyers do, the fact that they are able to make decisions doesn't of necessity make their reasoning process distinct from the argument of a lawyer in favour of a client's position. Analysing fewer cases more deeply gives more insight into the legal reasoning process than skimming a larger amount of cases to give a more comprehensive and in-depth analysis of the legal issues.25 Looking concretely at what the law is (in their application of legal principles to certain fact scenarios) and the way that judges use it is more important than learning lists of cases to use as precedents in specific scenarios. Cases aren't useful tools in legal argument merely as ratio decidendi to use as precedents, but are also useful as ways of showing the type of reasoning that different judges use, and thus the type of reasoning that lawyers are able to use. There can be an
23 Patrick Keyzer, 'Using 'Deeper' Case Method to Introduce Legal Theory and Context', in Sally Kift, Michelle Sanson, Jill Cowley Penelope Watson, Excellence and Innovation in Legal Education (LexisNexis Butterworths, 2011), 295. 24 Ibid, 298-299 25 ANU Law School Reform Committee, Breaking the Frozen Sea, 26.

acknowledgement that judges have agendas and use the tools of legal reasoning to service their agendas, but to de-legitimise these tools does not influence the way that they are used.26 An analysis of judgement on its own terms is an effective and useful skill when compared to flat application of doctrine or theoretical analysis abstracted from legal practise. Judges do a kind of reasoning, with a number of interpretive methodologies (possibly as many as there are judges), have political opinions that influence their use of these methodologies. In learning about judges' perceptions of the law and their approaches to precedent, interpretation and as a part of government students can gain a grasp of many of the doctrinal and theoretical problems (particularly if a theoretical framework is likewise given). This can come down to talking about the concrete findings of the legal system rather than abstracting them to doctrine divorced from entire cases as useful ratios, or conversely turning legal analysis into sociological or political analysis. Problems Funding One of the most significant challenges that faces the incorporation of some of these methods for dealing with problems within legal education is that of funding. As public funding of universities has decreased and deferred payment has been instituted as the primary source of university funding, a market model of the university has emerged. This model shifts the focus of the university from being a place of learning in its broadest sense to the a focus of university being a place of training and qualification acquisition. This change has resulted in a cultural shift that has motivated many of the criticisms levelled at the law school by students within the ANU report, and ironically probably gave rise to the kind of thinking that gave rise to the report. What is meant by this is that the report instituted by the students of ANU can be seen as an example of a class action lawsuit of sorts, an expression of consumer frustration with the product that law schools are providing. The skills versus knowledge distinction discussed thus far feeds into this discussion of funding. Knowledge, as in knowledge of a certain amount of curricula or specific vocational knowledge is more easily marketable than the types of skills mentioned above. Oration and critical thinking are abstract notions that aren't easily quantifiable. Knowledge on the other hand is easily commodified, even moreso than knowledge, professional qualifications are extremely easy to package and commodify.

26 Gary A. Olson, Justifying Belief, above n 13, 73.

Flexibility A corollary of the problem of funding is the problem of the multitude of different types of legal students, including international students for whom English may not be a first language and the problems of students engaged in full time work. Some of the solutions alluded to above, including the teaching of criticism through deep case analysis and particularly the teaching of rhetoric, create problems for these students for international students in the focus on spoken language and for students that are engaged in full-time work the problem of the compulsory contact time required by these kinds of teaching. The former is a difficult problem that is a complex issue that is beyond the scope of this paper, but the problems for the latter raise an interesting and important point. The point being related to the above dumbing down of the law degree, the isolation from educators and other students that students feel and the lack of skill based learning. Continual assessment and compulsory class time that teach skills are integral parts of other disciplines but absent from legal education. Many of the factors above feed into each other, students feel a sense of isolation due to competition, a sense that the law school is elitist and thus do not engage with optional class time. The desire by students for flexibility is in itself an indicator of these problems, the very notion that law school is a component of a person's life unimportant enough to prioritise work or social commitments above it is problematic in and of itself. The idea that it would be possible to teach scientific experimentation purely theoretically would appear anathema and ludicrous to a science department, in the same manner the idea that law can be taught without student engagement should likewise be considered highly undesirable. This insistence on flexibility echoes the sentiments of those such as Margaret Thornton who see the rise of free market ideas in the education system such as the notion of consumer choice.27 This notion of consumer choice relates back to funding as mentioned above and ironically weakens the type of degree that a law school is able to offer. This desire for flexibility can easily be read as a desire for a student to disengage from learning while still acquiring qualifications and access to resources. Conclusions As an addendum that has to be made regarding my difficulty as a law student in assessing many aspects of my own education in a way that is fair and balanced. This is obviously by no means comprehensive, but boils down what are probably personal biases and observations into universals offers solutions that resonate with me personally, being a final year law student who has completed
27Margaret Thornton, Privatising the Public University: The Case of Law, (Routledge, 2012).

the compulsory curriculum but is still viscerally aware of the feeling of being a law student, which obviously colours the focus of this paper. The shunting of electives, the problems of minorities and the requirements of the legal profession in a pragmatic sense are obviously not covered in the depth required. This discussion of the issues related to legal education, the problems of balancing the different interests of students, academics and the legal profession's requirements is incredibly complex, and these ideas attempt to offer one solution that addresses many of the discomforts felt by students in particular outlines in the ANU Law School Reform paper referred to throughout, as well as arguments from the area of critical legal theory generally in a way that is compatible within the current legal structures.