Critical Perspectives on the Scholarship of Assessment and Learning in Law
Assessment is an act of interpretation, not just measurement.1
In this Introduction, we set out some of the innovative practices and themes arising from assessment in legal education in England. It is fair to say that assessment theory has not attracted the same rigorous analysis and implementation that has attended the subject in other disciplines such as medical education. Much of the theoretical innovations tend to be syncretic, adaptations from other disciplines. Nevertheless, there are examples of genuine innovations when England is viewed alongside other jurisdictions, and where it has occurred we have noted it in this Introduction. Needless to say, but we shall say it anyway, the field is extensive and growing; and by no means all the innovations within the last several decades are listed here. We have attempted to be as contemporary as possible to our publication date of 2019, but inevitably there are many projects discussed in the book that are in the process of adaptation and change. Where possible, we give website resources so that readers can follow up the latest developments in any particular project.
It may be helpful for international audiences to know the broad outline of legal education in English higher education. The standard three-year LLB or Bachelor of Laws is the general law degree in England, studied at undergraduate level, and for graduates from other disciplines a one-year conversion Diploma is available (and of course there are part-time, block-release and distance-learning variants of these qualifications). They are ‘qualifying law degrees’ in that they contain the subjects required for admission to the legal professions. A minority of undergraduate law students go on to enter the professions. For those who wish to become solicitors they need to study a further course, the Legal Practice Course (LPC), followed by a two-year trainee contract with a legal service provider. Prospective barristers complete a one-year Bar Professional Training Course (BPTC), followed by ‘pupillage’, a year in training in barristers’ chambers. The professional training of solicitors is in the process of change, described in the Introduction below. Apart from these main routes there are many and complex routes into the legal professions in England and Wales, both the regulated and unregulated professions.
General influences on legal education in England
The last decade has seen a variety of pressures affecting the shape and content of higher education (HE) in England. The deployment and shaping influence of the National Student Survey (NSS),2 HE apprenticeships,3 the increasing commodification of HE,4 the tripling of student fees in 2010, the increasing pressure of regulatory interventions, the growing diversity of disciplines and interdisciplinary clusters in legal curricula, the expectations of students, the growing influence of New Managerialism and neoliberalism on the legal curriculum, the casualisation of legal educators – all these broad social and HE movements are having direct and indirect effects on the structure and content of legal curricula. More recently, faculty anger and sense of betrayal over changes to employment conditions, particularly alterations to pension arrangements and the steep and seemingly unstoppable rise of Vice Chancellor pay awards, may also have an effect on the legal curriculum.
Until recently within legal education, it seemed that little would change substantially in England. Law undergraduates proceeded into the profession but they also used their degree as a stepping stone into a variety of other professions and occupations. Non-law graduates took a one-year full-time conversion course that academically placed them at the same stage as law graduates: most of these were intent on a legal career and many law firms and sets of chambers favoured these more mature ‘well-rounded’ individuals who had freely chosen to pursue a legal career with arguably a more realistic view of the chances of success. Meanwhile, UK law schools as a whole encouraged applications for law degree programs on the basis that law enabled students to carry valuable transferable skills, including critical thinking and sociolegal analysis, into whatever might be their future life trajectories. Some larger schools offered a wide range of electives and encouraged innovative assessment methods, while others promoted legal skills by developing what were once seen as ‘extracurricular’ activities into mainstream assessment criteria for traditional subjects. The number and variety of clinics grew. Within curricula, much assessment was carried out via the critical essay, with the final-year dissertation developing research skills and of course the problem question in its myriad forms and guises.
Now, however, there is considerable change in the offing for assessment. We could cite two initiatives in particular: the Solicitors Regulation Authority (SRA) reforms to professional education, and the Teaching Excellence Framework (TEF). In England and Wales, after the research phase of the Legal Education and Training Review (LETR) Report, the SRA took the decision to alter radically the professional education and training regime for the qualification of solicitors in the jurisdiction.5 It has replaced the previous system of program and local assessment and traineeship, in place since the early 1990s, with a single assessment portal, the Solicitors Qualifying Examination (SQE), together with a period of Qualifying Work Experience (QWE).6 The SQE, which is closely modelled upon the already-existing Qualified Lawyers Transfer Scheme (QLTS – discussed below), focuses on knowledge and skills, and assessments will be conducted on a national basis by a third-party organisation, as is the case with QLTS at present.7
Assessment powerfully affects learning and its contexts, and this is no exception. While some law schools may remain unaffected by the changes, the undergraduate and postgraduate programs of many will be affected: for instance, the content and structures of degrees, the shape and size of staff provision, and probably also the size of student intakes and therefore the financial planning of law schools and institutions. While the SQE is still, at the time of writing, in the process of being developed and implemented, there is already a growing body of literature about it and its possible effects. Hall noted some problems with educational research methodology, while Davies widely critiqued the proposal; and Ching et al. commented similarly from a regulatory perspective.8 Davies observed that some law schools have moved the focus of their undergraduate curricula away from professional areas, while at the same time retaining a dependence on their qualifying status to recruit student numbers into their degree programs. He also noted the opportunities the proposals opened up for those law schools wishing to move away from what is currently a highly constrained professionally determined curriculum. Ching et al. described the change as one that moved away from the shared space approach advocated by LETR towards a more top-down hierarchical model of regulation that was unfit for either 21st-century legal professionalism or education.
The TEF is a development from government HE policy more generally, and will affect all aspects of the legal curriculum, particularly the undergraduate LLB degrees. The name mimics the Research Excellence Framework (REF) and, like early instances of the REF, the significance of the TEF perhaps lies less in the detail of current proposals and more in the establishment and gradual refinement of metrics and the metricisation of the teaching process than has been the case until now.9 TEF results are calculated using six core metrics, three of which are derived from the NSS and focus on student views of the quality of teaching, assessment and academic support. A fourth metric deals with institutional drop-out rates and the remainder are based upon post-graduation employment. Benchmarks were set for each metric, based upon the profile of the institution’s general student cohort. Currently the TEF applies three grades to institutional-level evaluation of teaching excellence. However, in the near future it will be applied at disciplinary levels within an institution.
Not all the jurisdictions of these isles are undergoing similar transformations such as the SQE and TEF. In Scotland there are no university fees charged for home students (a decision taken by the Scottish Government); and the SRA’s SQE does not apply to Scots legal education. The effects of the TEF, which is still voluntary in Scotland, may be mitigated by Scotland’s distinct Quality Enhancement Framework, with its emphasis on collaboration, institutional reflection, enhancement and greater student participation in Quality Enhancement processes.10
In Ireland, assessment has in some respects taken similar paths to England, but there are important infrastructural and cultural differences. While there is no precise data, the greater opportunity for freedom of teaching and assessment in a jurisdiction where there has been historically little centralised authority governing the undergraduate curriculum is both an advantage (more local creativity, less bureaucracy, for instance) and a disadvantage (it can be more difficult to align local practices with innovations and better practices internationally). Gopalan and Paris note the agility that this can foster in assessment and qualification – lawyer exchange programs for solicitors and trainees, reciprocal admission arrangements with several jurisdictions in Australasia and the USA, and the second part of the Law Society of Ireland’s professional qualification, the PPC II, is designed to satisfy the admission arrangements for England and Wales.11
One of the most significant social changes in our lifetimes has been the rise of the digital: digital economies, literacies, cultures, mobilities, educations, modes of travel and study, and access to online information. While the legal educational literature had already discussed small projects and larger instances of digital assessment design (e.g. the Warwick and Strathclyde initiatives in TLTP and SIMPLE), LETR was probably the first legal educational report in any Common Law jurisdiction to acknowledge the full force of the social changes that digital is bringing about.12 Not only was there a special report commissioned from a consultant expert (Richard Susskind), but the impact of digital education was considered throughout the report.13 In this volume we consider some of the innovations that digital is bringing about, notably but not only in Firth and Newbery-Jones’s chapter.
The history of the digital in assessment of learning in legal education has still to be written – indeed, the history of assessment in legal education, and the place of the digital domain in legal education generally, still await serious historical, jurisprudential and cultural analysis. As regards digital learning, Maharg and Nicol’s systematic survey of digital simulation point to the general patterns of use on, and effects in, digital simulation on legal education over the last 40 years or so.14 In the 1980s and early 1990s, computer-assisted learning and multiple-choice questions dominated, with academics limited in part by the desktop technologies then available, but also under the influence of educational theories based on machine and algorithmic paradigms – models of the brain as computer. The new century saw a move away from teaching machines to the emergence of constructivist approaches to assessment of learning. The social and connectivist aspects of learning and assessment began to be explored more holistically with technology that was much more powerful, along with collaborative models of inquiry and their assessment. Legal educators in England are still exploring that context.
Digital technology is now a deeply embedded function of all law school assessment, much as it has become embedded in our washing machines, cars, houses, indeed almost every aspect of our lives. Students use it in multiple forms to prepare for assessment (not only in learning management systems but in webcasts, and podcasts, and by using digital earphones, phones and many other devices). Academic staff use digital technologies to create assessments, professional staff use them to administer those assessments. It is probably fair to say, though, that much use of digital technology, in assessment as in learning, tends to conservative emulation of signature forms of assessment and learning. There are no major shifts in assessment practices in the jurisdiction brought about by digital innovation – the chapters outlined below are innovative in their designs, but they are still only instances of innovation, not general practice. The use of social media, mobile technologies, geo-locationary affordances, the development of multimedia fusion, the rise of AI and new machine learning – all that has made little impact to date on most forms of the conventional assessments undergone by law students in England. It remains to be seen whether a regulatory intervention such as the SQE Stages 1 and 2 described above will change that.
Innovations in assessment in English legal education
The last two decades of expansion in legal education in England have, however, seen a concomitant expansion in the methods of assessment used in law schools. The archive of the now-defunct UK Centre for Legal Education (which also hosted resources from other jurisdictions in these isles) gives a sense of the range and variety of assessment practices over the last 18 or so years.15 The valuable guide by Bone and Hinett, Assessment for Learning: A Guide for Law Teachers, sets out many useful issues that became the focus for conference sessions on the subject.16 The archived UKCLE’s website sets out a thorough taxonometric listing that has categories of resources listed under assessment by: e-assessment, formative, group, oral, outcomes-based, peer, self/peer and summative. This by no means exhausts the categories of resources the UKCLE held over its decade of high-profile work in legal education in the jurisdictions of the UK and Ireland (e.g. assessment by simulation and through clinic). More detailed assessment projects funded and undertaken by legal academics in association with the UKCLE included ‘A Practice Survey of the Teaching, Learning and Assessment of Law in Undergraduate Medical Education’, ‘Academic Misconduct in Legal Education’, ‘Evaluating ePortfolios in Law’, and ‘Formative Feedback’. All this valuable practical and theoretical work illustrates the range of interests and innovation in English legal education.
In addition, there were larger-scale assessment projects and initiatives undertaken since 2011 in England, and we shall briefly outline a number of them in this Introduction. One of the largest projects has been the establishment at York University Law School of an LLB problem-based learning (PBL) curriculum. PBL in legal education is not new – the University of Newcastle, Australia, and Maastricht Law School both had whole degree programs based upon it; more recently, The Australian National University College of Law designed an online PBL JD degree in Australian Law – a world-first. York’s program includes methods of assessment that adapt the new forms of learning on such programs.17 As Maharg pointed out, summarising the medical educational literature on the subject of PBL, the learning that students undertake on PBL is significantly enhanced if assessment takes account of the different contexts and activities that learners are familiar with; and the York curriculum adopts forms of assessment that are an integral part of the learning experiences students undergo.18 In that sense, the learning zone is also the assessment zone.
The Feminist Judgment Project is another example of a project that, like the PBL curriculum, is a teaching and learning project that has assessment dimensions to it. As Hunter points out, there are formative skills in judgment that are developed in such a project of rewriting, in students’ own assessment of feminist judgments, written over against the original judge’s judgment.19 Rosemary Auchmuty addressed the issues of assessment that were raised by her development of the technique within a property law subject.20 As the Feminist Judgments website confirms, this heuristic now has an international impact, with projects in Northern Ireland, Scotland, Australia, Aotearoa New Zealand, Canada, the USA and India.21 The project has many fascinating assessment aspects to it – the learning and assessment of judicial composition, including voice and tone, which is rarely attempted in undergraduate legal education; the interdisciplinary use of theory in legal judgment; and the assessment not just of writing content but of genre-based skills – analysis of its components, structure, voice, levels of argumentation, the balance of concision and complexity, and much else. There are also strong links that can be made to assessment elsewhere in the undergraduate degree of the skills of legal argument and legal research, which often takes place in specialist introductory courses. Finally, the project is a useful introduction in the undergraduate degree to learning a crucially important genre of professional legal writing, which is rarely encountered even in professional programs such as the LPC or the BPTC.
While extensive simulation is neither a signature pedagogy nor a signature assessment in law in the sense that it is for business or medical education, it nevertheless is another heuristic with strong assessment dimensions.22 The work of the Glasgow Graduate School of Law at the University of Strathclyde with SIMPLE (SIMulated Professional Learning Environment) demonstrated in research and practice how simulation could be used to assess knowledge, skills and values, and in both assessments of individual students’ work and assessments of the work of groups of students.23 There are many other forms of simulation, both face-to-face and online, that are used for learning; and some are used for assessment, too, either formative or summative assessment, as a recent edited collection demonstrated.24
Perhaps the most ambitious use of simulation as assessment lies in the development of the QLTS by the SRA in 2011. Concerned at the number of lawyers qualifying into England through the Qualifying Lawyers Transfer Test (a paper and pencil test of memory, with nothing of the assessment variety of the LLB, the LPC or traineeship), the SRA formed a working party that designed a new assessment consisting of a multiple-choice test (MCT) and an objective structured clinical assessment (OSCE).25 The MCT went much further than the existing use of such assessment on law degrees.26 It is now a 180-item, 5.5-hour test, digitally delivered and marked, and available worldwide. It assesses Part A of the SRA Day One Outcomes – effectively the foundation subjects of the qualifying law degree. It is scenario-based, with questions testing the application of legal principle, rather than memory of cases or legislation alone. The examination is also significant for its use of statistical analysis: the pass mark is set through a combination of the Angoff method and linear statistical equations, for example.27 It is easily the first of its kind in legal education in England for its design and reliance on extensive statistical techniques, and its implementation to scale.
The OSCE was based in part on the work of Maharg and colleagues at Strathclyde Law School, in the Simulated Client Initiative. In a correlative study conducted there with 14 trained simulated clients and over 250 students, the simulated clients (SCs) were proven to be as effective as staff in assessing the client-facing behaviours of students who interviewed the clients in a first interview concerning a legal matter.28 Medical educational methods influenced most stages of the design of the assessment – SCs were trained on specific scenarios, rigorously trained on assessment standards that comprised detailed behavioural components, and were also trained to give formative feedback to students as well as summatively assess their performances in interview. The assessment criteria were transparent to all involved in the process, which became more valid, reliable and robust as a consequence. Over 12 centres globally now have participated in the initiative, many adapting the techniques to suit local conditions.29 As a result of this, SCs now form a core function in the QLTS, and will do the same in the SQE. It may be that as a result of the SQE more law schools in England will take up the practice more widely, and become involved, too, in the use of statistical instruments, which hitherto law schools generally have been reluctant to adopt in the jurisdiction.30 It may also stimulate interest in multiple-choice questions (MCQs) not merely for formative assessment but also for summative assessment of knowledge.31
Clinic is becoming another major form of assessment in law schools. While clinical learning in England does not have the historical and substantial record it has in the USA, nevertheless it has grown rapidly and extensively, and includes housing clinics (e.g. Southampton Law School), immigration and asylum clinics (Liverpool Law School), a mandatory clinic in an undergraduate degree (Student Law Office, Northumbria Law School), pro bono clinics, Free Representation Units (City Law School) and commercial clinics. In the clinical literature there has been less focus on assessment, but nevertheless there are examples of the development of both theory and practice in the field in England.32 For Murray and Nelson, associated with the innovative mandatory law clinic on the LLB at Northumbria University, grade descriptors together with criterion-referenced assessment was an appropriate method to evaluate student performance. A special issue of the International Journal of Clinical Legal Education was given over to the subject. In the discussion of articles in the issue, the medical educationalist Cees van der Vleuten observed the importance of systemic planning of assessment within the curriculum: ‘Learning complex skills, experiential learning, assessment providing feedback, longitudinal monitoring and coaching are all important ingredients that mutually influence each other in a positive way. The ingredients provide the bricks of a highly powerful learning environment.’33 Kemp et al. pointed to the importance of reflection and reflective learning in clinical and pro bono activities. They also observe, quoting Gibbon and Grimes, that particular forms of assessment have resonance for experiential learning and clinic in particular – ‘learning portfolio; simulation tasks; oral examination; and online assessment of the appreciation of applicable professional standards’.34
Access to Justice (A2J) has been a theme gathering interest and momentum in English law schools. Cuts to funding in Legal Aid and the administration of justice generally have raised the profile of the subject as a focus for legal education and assessment. A2J emphasises specific aspects of a justice system, particularly its affordability, timeliness, accessibility and the ease with which one might understand and navigate the system. In most jurisdictions there is a generally acknowledged substantial unmet legal need, and some law schools are interested in providing innovative solutions and approaches to the problem. In England, following the example of the USA and Australia, over 30 Innocence Projects were set up.35 Assessment methods were varied. As Naughton describes one such at the University of Bristol, the project there was extra-curricular, though the Induction Unit of the course was assessed by a 1,500-word essay. In addition, third-year students could ‘elect to conduct their Research Project (Dissertation) on a related topic, adding a formal assessed element to the initiative’.36
In the past the solution to addressing unmet legal need usually involved face-to-face clinics; but more recently A2J and digital technology projects have combined to produce innovative solutions. Students who engage in A2J projects in the curriculum are assessed on that work. Thus in University College London’s Access to Justice and Community Engagement module (linked to the faculty’s Centre for Access to Justice), students conduct research into difficulties in using legal services, ‘be it due to exclusion from the legal process, lack of funds, lack of awareness of rights or lack of faith in the justice system’.37 Student work is assessed by 50 per cent research essay, 40 per cent journal entries and 10 per cent oral presentation. One might expect more innovative assessment procedures to be used in technological projects. One example of this may be Thanaraj and Sales’s work on a Virtual Law Clinic, which addresses technological literacy, clinical experience and access to justice issues through an online clinic.38 There is little detail on assessment to date, however, though one might expect this to be based on student case files.
To date there is little exploration in legal education assessment in England of more sophisticated use of digital contexts for assessment. It may have been expected from the statistical and machine learning work of researchers such as Daniel Katz in the USA that legal argument might be a fertile ground for experimentation, but it would appear not. One promising avenue of research may well be the development of analytic frameworks for assessing legal argumentation, based on work carried out in science and medical education; but to date at least the challenge has not been taken up in English law schools.39
The organisation of legal educational research culture
In these initiatives and others in England, we can see the emergence of individual examples of innovation in assessment, and clusters of theory and practice, one enriching the other – in simulation, feminist judgements and in clinic, for example. It is probably fair to say, though, that many of the difficulties facing innovation and assessment lie less with innovation and innovators, and more with a lack of systemic initiatives and analysis; and indeed the same could be said of legal education in all the jurisdictions in these isles.
If we compare the situation in law with medical education we can see a very different habitus. In an organisation such as the Association of Medical Educators in Europe (AMEE), there are rich arrays of resources made available to all levels of medical educators, from novices to senior management. There are regular events on specific areas of medical education, and an annual conference with hundreds of delegates attending, globally. The resources are developed within clusters and taxonomies, often addressed to specific groups of readers or users. Thus one publication genre, Best Evidence in Medical Education (BEME), is aimed at researchers interested in knowing more about specific fields of research. Policy briefings are aimed at policymakers, regulators and professional bodies, and often summarise globally the results of systematic summaries of research on medical educational issues. Often Special Interest Groups, or SIGs, take forward the work of drafting such pieces, and their work is part of a rich theoretical and practical habitus where the connections within the research culture are many, complex and contribute to the intellectual health and vigour of the whole. In BEME, in AMEE’s policy papers and in the AMEE Guides there are extensive items on assessment. In the latter category, for example (currently standing at around 121 published items), 18 deal principally with assessment, and the topic is mentioned in many others.
Medical educational culture also supports the development of professional consultancy services. In the field of assessment, for example, there is the Health Professional Assessment Consultancy, which comprises a core team that have worked in many aspects of assessment in medical education. Such bodies contribute not just to the literature and practice but the developing policies in medical education, too.
This brief summary of some of the features of legal education assessment in England reveals a pattern of examples of innovative practice and the adaptation of innovative theory from other disciplines, notably medical education and of course education itself. Often the patterns arise from specific forms of learning and teaching that stimulate renewed interest in assessment. Nevertheless it is probably fair to say that while innovation does take place in this way, the majority of practice in most law schools is currently still conventional in structure and content. It is doubtful if infrastructural initiatives such as the TEF will do much to encourage innovation and change. The points made by Bone and Hinett back in 2002 still apply 17 years later: there is a need to diversify assessment, to reflect deeply on the nature and purpose of assessment, and to develop capacities such as judgment in legal education.40 Their call is not far from that of Epstein and Hundert in medical education, where these authors defined competence in medicine as ‘the habitual and judicious use of communication, knowledge, technical skills, clinical reasoning, emotions, values, and reflection in daily practice for the benefit of the individuals and communities being served’,41 and whose subsequent work is based upon that definition.42 There is a need for legal and medical educators, and educators in many other disciplines, in the arts and social sciences in particular, to learn from each other’s assessment theories and practices, and allow interdisciplinary innovation to flourish.
Summary of chapters
The chapters in this first volume of the Assessment in Legal Education series were given as papers at an Association of Law Teachers (ALT) assessment workshop held in the Institute for Advanced Legal Studies, University of London – a day organised by Alison Bone, and productive of many innovative ideas and practices. A number of the contributors were persuaded to write up their papers for publication.43 In this first volume, our focus on England as a jurisdiction arose in part because of contributions at the initial workshop, and in part because, as the book developed, so too did the series internationally, and the political developments arising from the politics of legal education, the academy and the profession and, much more widely, the political pressures upon higher education (HE) in the last two decades or so.
In the first chapter, Paul Maharg and Julian Webb give a brief overview of legal education reform in the world of Common Law legal education, focusing on current activity in England. They describe in outline the problems as analysed by the Legal Education and Training Review (LETR), and the LETR Report’s approaches to these problems. One of these is the difficulty of attaining change that is successful and can be sustained – the process of challenging hegemonies can be problematic. They then take two examples that depend in part on an interdisciplinary reading of assessment, namely client-centred assessment of students’ interviewing skills by simulated clients, and the future of digital simulation assessment, in the immersive context of online digital simulations. Throughout, they draw from the literature on standards and standardisation, which they identify (as did LETR) as one of the critical debates facing not just academic staff designing their curricula, but regulators and accreditors of undergraduate, postgraduate professional and lifelong legal education. They argue that all of us working in this field need a much more nuanced and developed concept of the relationships between standards and standardisation, between learning and assessment.
Nigel Firth and Craig Newbery-Jones explain how reflective practice can be used to develop a variety of general transferable skills, specific employability skills and collective legal values in their redesign of a core law module – Dispute Resolution Skills – in Plymouth University’s LLB program. The chapter addresses how the redesign was motivated by the changes recommended in LETR. The authors describe student reflections on their ongoing tasks (involving a case study on which they worked as a team as if they were trainee lawyers), which they were required to deliver bi-weekly. These were video-recorded, a format that encouraged interaction and promoted digital literacy. The students did not therefore undergo substantial summative assessment at the end of the course but a series of ongoing assessments where they reflected and fed forward their understanding into later tasks. Apart from some hiccups involving the technology used for the vlogs, students were hugely supportive of the new module and the authors deployed YouTube to assess their students.
In his chapter, Nigel Duncan has examined the development of assessment for the Bar between 1975 and 2017. His review offers a fascinating analysis of how traditional examinations were used to assessing a vocational course. With the development of understanding of how best to assess skills and the methodologies by which this could be done (‘constructive alignment’ of learning and assessment, for example, and what that meant in detail for the courses and for students), the chapter critically examines how the assessment has shifted. There are a number of examples from old and new assessments and the chapter also considers proposed developments and their potential impact.
Egle Dagilyte and Peter Coe argue that traditional examination papers taken in a time-constrained environment are hardly the best preparation for any professional skills development. They favour take-home examinations, not to replace, but to add to and enhance the ‘normal’ examination experience. These examinations test such skills as time management, integrity and ethics, research skills and work–life balance, to say nothing of technological challenges. Their paper analyses the use of such examinations at their own and other higher education organisations across undergraduate and postgraduate programs. It examines the advantages and disadvantages of such assessments and concludes that, if carefully designed, such examinations are a useful addition to the usual assessment methods, while noting that there is comparatively little pedagogic research into their use and effectiveness. There is useful practical advice in annexes for those considering using this assessment format.
Rachel Dunn and Richard Glancey explore how the use of legal policy and law reform in assessment enables students to develop their skills in an innovative context. Policy clinics operate throughout legal education but are still comparatively rare in England. Northumbria University’s policy clinic, known as the Student Law Think Tank, responds to consultation papers, delivering their reports in person. Students develop their research skills, legal writing and, importantly, are aware that their work makes a difference. The Civil Liberties module, which is the focus of this paper, took the concept of policy clinic and applied it to the module, giving students the choice of topic and allocating them into small groups. Students are told that if their work is of a sufficiently high standard it will be sent to the intended recipient as the think tank responses. The paper explains how it was necessary to develop students’ group work and problem-based learning to improve their responses. Results improved dramatically as did students’ enjoyment of the module. The problems associated with assessment of groups are analysed, as are the pedagogical credentials of using policy projects as assessment. The authors note the challenges of this mode of assessment and how it is used successfully in other disciplines.
Though they may appear quite different in subject matter and focus, there are many fascinating cross-cutting themes throughout the chapters. Duncan’s work on ‘constructive alignment’ in Bar education raises the wider question of whether there ought to be more constructive alignment between undergraduate LLB programs and professional programs in England – a point raised by Maharg and Webb, and implicit in Glancey and Dunn. Another example of such alignment might be the work being done at Northumbria University Law School in using simulated or standardised clients to prepare students for mandatory clinic work in the undergraduate LLB program.
Policy and standards have never been more debated in legal education than they are now; and the work of Glancey and Dunn shows how this might involve students. In many respects policy units such as Northumbria’s Student Law Think Tank have a valuable role to play in countering the baleful hegemony of the National Student Survey and the newly introduced Teaching Excellence Framework. Too often student voices are confined, muted and dispersed in the highly politicised, processed forms of course or program evaluations.44 Assessment too can render students all too often inarticulate, but this is certainly not the case in Firth and Newbery-Jones’s chapter, or that of Coe and Dagilyte.
The assessment of legal education should entail students learning the intellectual apprenticeship of critical thought applied to their own experiences of education. There are many examples of this in other disciplines. In the history of science, Hasok Chang’s work remains a valuable example. As part of their assessment in the subject at University College London, Chang’s students collaborated on writing a book that was a social and scientific history of chlorine – how it was perceived and used in science, medicine, technology and war. Drafts of the chapters were passed down from one year cohort to the next (Chang called this the ‘inheritance principle’), and the book was eventually published.45 The research community that the project enabled was a powerful and simultaneous mode of both learning and assessment. Following the model of Glancey and Dunn, and applying it to legal education, could empower students in the critical debates surrounding the nature and future of legal education, indeed of higher education generally.46 And not before time: the increasingly hegemonic neoliberalist and consumerist conception of education requires constant challenging where ‘[t]he value of a university education is the income it enables you to earn minus the cost of acquiring that education’.47 Assessment can play a critical role in that challenge.
Dagilyte and Coe’s chapter echoes a number of the points made by Firth and Newbery-Jones on the subject of skills development; and also by Maharg and Webb, on the subject of the lack of rigorous research on the topic. This is a point that could be made more generally about the research that is carried out upon assessment in both jurisdictions. It also challenges the hegemonic categorisation of forms of legal education and how their reproduction goes relatively uncontested. And yet, as the Preface points out above, reproduction contains the seeds of its own transformation; and we can see such transformation of assessment practices in all these chapters.
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Findley KA, ‘Assessing Experiential Legal Education: A Response to Professor Yackee’ (2015) Wisconsin Law Review 627.
Fry E and Wakeford R, ‘Can We Really Have Confidence in a Centralised Solicitors Qualifying Exam? The Example of the Qualified Lawyers Transfer Scheme’ (2017) 51 The Law Teacher 98.
Gibbons J, ‘Oh the Irony! A Reflective Report on the Assessment of Reflective Reports on an LLB Programme’ (2015) 49 The Law Teacher 176.
——, ‘Exploring Conceptual Legal Knowledge Building in Law Students’ Reflective Reports Using Theoretical Constructs from the Sociology of Education: What, How and Why?’ (2018) 52 The Law Teacher 38.
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Grimes R (ed), Re-Thinking Legal Education under the Civil and Common Law: A Road Map for Constructive Change (1st edition, Routledge 2017).
Hall E, ‘Notes on the SRA Report of the Consultation on the Solicitors Qualifying Exam: “Comment Is Free, but Facts Are Sacred” 1’ (2017) 51 The Law Teacher 364.
Haywood J and others, ‘Use of TLTP Materials in UK Higher Education’ (1999) <www.homepages.ed.ac.uk/jhaywood/reports/TLTPreport.pdf> accessed 30 October 2018.
Huang V, ‘An Australian Study Comparing the Use of Multiple-Choice Questionnaires with Assignments as Interim, Summative Law School Assessment’ (2007) 42 Assessment & Evaluation in Higher Education 580.
‘Innocence Network UK (INUK)’ <www.innocencenetwork.org.uk/> accessed 2 November 2018.
Kemp DV, Munk DT and Gower S, ‘Clinical Legal Education and Experiential Learning: Looking to the Future’ (The University of Manchester 2016).
Kherag, S, ‘HIST2500 Syllabus’ (Sean Kheraj: Canadian History and Environment, 2018) <www.seankheraj.com/hist2500/>.
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——, ‘Abdul Paliwala: An Appreciation’ (2013) 4 European Journal of Law and Technology 6.
——, ‘“Democracy Begins in Conversation”: The Phenomenology of Problem-Based Learning and Legal Education’ (2015) 24 Nottingham Law Journal 94.
——, ‘50 Years of Assessment in Legal Education – liveblog’, <http://paulmaharg.com/2015/01/30/50-years-of-assessment-in-legal-education-liveblog/> accessed 29 January 2018.
——, ‘50 Years of Assessment in Legal Education – pm’, <http://paulmaharg.com/2015/01/30/50-years-of-assessment-in-legal-education-liveblog-pm/> accessed 29 January 2018.
—— and Nicol E, ‘Simulation and Technology in Legal Education: A Systematic Review and Future Research Programme’ in Caroline Strevens, Richard Grimes and Edward Phillips (eds), Legal Education: Simulation in Theory and Practice (Ashgate Publishing 2014).
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Webb J and others, ‘Setting Standards. The Future of Legal Services Education and Training Regulation in England and Wales’ (SRA, BSB, IPS 2013).
2 For some of the debates, see Roger Bennett and Suzanne Kane, ‘Students’ Interpretations of the Meanings of Questionnaire Items in the National Student Survey’ (2014) 20 Quality in Higher Education 129; and Jacqueline HS Cheng and Herbert W Marsh, ‘National Student Survey: Are Differences between Universities and Courses Reliable and Meaningful?’ (2010) 36 Oxford Review of Education 693.
3 See for instance Keith Burnett and Nigel Thrift, ‘The Future of Higher Vocational Education: Advanced Apprenticeships: Uniting Universities and Industry in Manufacturing the UK’s Economic Future’ (VOCEDplus 2017) <www.voced.edu.au/content/ngv:68212> accessed 14 May 2018; and T Coole and others, ‘The Effect of the Apprenticeships on UK Higher Education’, EDULEARN17 Proceedings (2017) <https://library.iated.org/view/COOLE2017EFF> accessed 14 May 2018.
4 The literature is extensive. See, for example, Mark Olssen and Michael A Peters, ‘Neoliberalism, Higher Education and the Knowledge Economy: From the Free Market to Knowledge Capitalism’ (2005) 20 Journal of Education Policy 313; Rajani Naidoo and Ian Jamieson, ‘Empowering Participants or Corroding Learning? Towards a Research Agenda on the Impact of Student Consumerism in Higher Education’ (2005) 20 Journal of Education Policy 267.
8 Elaine Hall, ‘Notes on the SRA Report of the Consultation on the Solicitors Qualifying Exam: “Comment Is Free, but Facts Are Sacred”1’ (2017) 51 The Law Teacher 364. Mark Davies, ‘Changes to the Training of English and Welsh Lawyers: Implications for the Future of University Law Schools’ (2018) 52 The Law Teacher 100. Jane Ching and others, ‘LETR Five Years Later’ (2018) forthcoming The Law Teacher.
9 Office for Students, ‘Teaching–Office for Students’ (13 February 2018) <www.officeforstudents.org.uk/advice-and-guidance/teaching/> accessed 17 September 2018.
10 Frank Coton, ‘TEF: A View from Scotland. Higher Education Academy’ (Higher Education Academy, nd) <www.heacademy.ac.uk/blog/tef-view-scotland-professor-frank-coton-university-glasgow> accessed 18 September 2018.
11 Sandeep Gopalan and Marie-Luce Paris, ‘Small Goes Global: The Internationalisation of Legal Education in Ireland’ in Christophe Jamin and William van Caenegem (eds), The Internationalisation of Legal Education (Springer 2016) <https://papers.ssrn.com/abstract=2798624>.
12 Webb and others (n 10). The TLTP (Teaching and Learning with Technology Projects was a UK-wide government and Higher Education Funding Council initiative in the early 1990s to develop information and communications technologies within learning, teaching and assessment in HE. Typically, disciplinary sets of courseware were designed and constructed by subject experts, educational and technological designers, and law was one of the disciplines involved. See Jeff Haywood and others, ‘Use of TLTP Materials in UK Higher Education’ (1999) <www.homepages.ed.ac.uk/jhaywood/reports/TLTPreport.pdf> accessed 30 October 2018; Abdul Paliwala, ‘Co-operative Development of CAL Materials: A Case Study of IOLIS’ (1998) 3 Journal of Information Law and Technology <https://warwick.ac.uk/fac/soc/law/elj/jilt/1998_3/paliwala/> accessed 21 October 2018; Paul Maharg, ‘Abdul Paliwala: An Appreciation’ (2013) 4 European Journal of Law and Technology 6. The SIMPLE (SIMulated Professional Learning Environment) was a digital simulation environment developed at Strathclyde University, and funded by the JISC (Joint Information Systems Committee, www.jisc.ac.uk/) and the Higher Education Academy (www.heacademy.ac.uk/) through the UK Centre for Legal Education at Warwick, in the period 2006–08. See <http://simplecommunity.org> for background and the project’s final report.
13 In one of the rare instances of bibliographical mapping in the field of legal education in any jurisdiction, Pearl Goldman compiled an invaluable annotated bibliography of technology research in legal education. See Pearl Goldman, ‘Legal Education and Technology II: An Annotated Bibliography’ (Shepard Broad Law Centre 2008) <http://ssrn.com/abstract=1338741>.
14 Paul Maharg and Emma Nicol, ‘Simulation and Technology in Legal Education: A Systematic Review and Future Research Programme’ in Caroline Strevens, Richard Grimes and Edward Phillips (eds), Legal Education: Simulation in Theory and Practice (Ashgate Publishing 2014).
15 See ‘UKCLE: UK Centre for Legal Education Website Archive’ <https://ials.sas.ac.uk/library/archives/ials-archives-collections/ukcle-uk-centre-legal-education-website-archive> accessed 17 September 2018.
16 Bone A and Hinett K, Assessment for Learning: A Guide for Law Teachers (UK Centre for Legal Education 2002).
17 Jenny Gibbons, ‘Oh the Irony! A Reflective Report on the Assessment of Reflective Reports on an LLB Programme’ (2015) 49 The Law Teacher 176; Jenny Gibbons, ‘Exploring Conceptual Legal Knowledge Building in Law Students’ Reflective Reports Using Theoretical Constructs from the Sociology of Education: What, How and Why?’ (2018) 52 The Law Teacher 38.
18 Gibbons (n 17). For proof of the positive effects that can be achieved when a curriculum uses forms of assessment that are integral to student learning experiences on a program, see Paul Maharg, ‘Democracy Begins in Conversation’: The Phenomenology of Problem-Based Learning and Legal Education’ (2015) 24 The Nottingham Law Journal 94.
21 See <https://blogs.kent.ac.uk/law-news/2018/11/29/feminist-judgments-project-writes-feminist-judgments-for-leading-cases-in-english-law/> accessed 16 July 2018, and related links.
22 On signature pedagogies, see LS Shulman, ‘Signature Pedagogies in the Professions’ (2005) Daedalus, Summer, 52–59.
24 Caroline Strevens, Richard Grimes and Edward Phillips, Legal Education. Simulation in Theory and Practice (Routledge, London, Emerging Legal Education 2014).
25 Maharg was part of the working party that developed the assessment, which as well as SRA staff included academics involved with both undergraduate and postgraduate professional legal education, solicitors from a variety of practice backgrounds, and a medical educationalist, Kathy Boursicot, then from St George’s University of London, now inter alia Director of the Health Professional Assessment Consultancy (see below). For information on the OSCE, see ‘OSCE – Objective Structured Clinical Examination – Kaplan QLTS’ <https://qlts.kaplan.co.uk/the-assessment/osce> accessed 24 August 2018.
26 For a prominent US example, see the Bar Exam MCQs – Susan Case and Beth Donahue, ‘Developing High-Quality Multiple Choice Questions for Assessment in Legal Education’ (2008) 58 Journal of Legal Education 372. Note that Susan Case was Director of Testing for the National Conference of Bar Examiners, and Beth Donahue the MBE Program Director at NCBE. While NCBE practices have been critiqued by other legal educationalists, the level of sophistication in both the debates and in NCBE practices goes far beyond the competence of the great majority of law schools in England. For a recent example of that extensive debate in the USA, see Suzanne Darrow Kleinhaus, ‘A Reply to the National Conference of Bar Examiners: More Talk, No Answers, so Keep on Shopping’  SSRN Electronic Journal <www.ssrn.com/abstract=2943516> accessed 24 August 2018.
27 Eileen Fry and Richard Wakeford, ‘Can We Really Have Confidence in a Centralised Solicitors Qualifying Exam? The Example of the Qualified Lawyers Transfer Scheme’ (2017) 51 The Law Teacher 98.
28 Karen Barton and others, ‘Valuing What Clients Think: Standardized Clients and the Assessment of Communicative Competence’ (2006) 13 Clinical Law Review 1.
29 The Australian National University used video conference to host the interviews online; for example, while at Northumbria University Law School Maharg and others developed the training template for training SCs for second and subsequent interviews in the same matter (documentation on file with Maharg). In the same law school, SCs were used to help students transition in their third year from the first two relatively academic years of the LLB into the mandatory clinic of the fourth-year exempting degree.
30 Other jurisdictions have been more interested in researching the assessment method. In Australia, for example, see Vicki Huang, ‘An Australian Study Comparing the Use of Multiple-Choice Questionnaires with Assignments as Interim, Summative Law School Assessment’ (2007) 42 Assessment & Evaluation in Higher Education 580; Noeleen McNamara and Eola Barnett, ‘Learning in Law: Using multiple-choice questions (MCQs) for Summative Assessment in Core Law Courses’ (2012) 17 International Journal of Organisational Behaviour 46.
31 Due to the lack of reliable data here as in many areas of legal education, it is impossible to know how many law schools make use of MCQs in their assessment regimes. There is evidence in the research literature that for some time the method has been implemented successfully. See, for example, Peter Alldridge, ‘Multiple Choice Examining in Law’ (1997) 31 The Law Teacher 167. Alldridge’s relatively early article describes not only the successful use of MCQs but hosting them on computer networks as well. Greg Allen made the case for formative use of MCQs: ‘a means by which deep learning can be stimulated and tested with sufficient rigour, and are therefore a suitable method of formative assessment at undergraduate level. It is also argued that there are significant advantages to be gained from making the MCQs and feedback available to students online’. Greg Allen, ‘The Use of Multiple‐choice Questions as a Form of Formative Assessment on an Undergraduate Law Module’ (2008) 42 The Law Teacher 180.
32 See, for example, Linden Thomas and others (eds), Reimagining Clinical Legal Education (Hart Publishing 2018); Richard Grimes (ed), Re-Thinking Legal Education under the Civil and Common Law: A Road Map for Constructive Change (1st edition, Routledge 2017). Recently there has been development of a model called Community Legal Companionship, where there is collaboration between a ‘social justice project involving law students, legal services providers, third sector advice agencies and law courts’. The authors point to the necessity under the Solicitors Qualifying Examination, Stage 2, to demonstrate competencies including ‘client interviewing, advocacy/oral communication, case and matter analysis, legal research and legal drafting’, and note that these competencies are present within the activities that students undertake in their work as Community Legal Companions. Ben Waters and Jeannette Ashton, ‘A Study into Situated Learning through Community Legal Companionship’ (2018) 25 International Journal of Clinical Legal Education.
33 Cees PM van der Vleuten, ‘Assessment in the Legal and Medical Domain: Two Sides of a Coin’ (2016) 23(1) International Journal of Clinical Legal Education <www.northumbriajournals.co.uk/index.php/ijcle/article/view/494/895>.
34 Vicky Kemp, Tine Munk and Suzanne Gower, ‘Clinical Legal Education and Experiential Learning: Looking to the Future’ (The University of Manchester 2016) 20.
36 Michael Naughton, ‘Wrongful Convictions and Innocence Projects in the UK: Help, Hope and Education’ (2006) European Journal of Current Legal Issues <www.bailii.org/uk/other/journals/WebJCLI/2006/issue3/index.html>. Carmack and Wallace in a valuable article on their Innocence Case Review course at the University of Central Missouri note what such a project may assess in criminal justice students: ‘lawyering skills, critical thinking and analysis, case management, and fact-finding’: Benecia Carmack and Don Wallace, ‘Teaching an Innocence Case Review Course to Undergraduate Students’ (2018) Journal of Criminal Justice Education 3. They go on to list many more qualities and skills, citing Findley and others (Kenneth A Findley, ‘Assessing Experiential Legal Education: A Response to Professor Yackee’ (2015) Wisconsin Law Review 627). The authors point to the need to provide ‘early- and mid-term formative assessments to the students’, and the use of reading assignments as assessments.
37 UCL Faculty of Law, Access to Justice and Community Engagement <www.ucl.ac.uk/laws/study/undergraduate/modules/access-justice-and-community-engagement-laws3025> accessed 22 June 2018.
38 Ann Thanaraj and Michael Sales, ‘Lawyering in a Digital Age: A Practice Report Introducing the Virtual Law Clinic at Cumbria Practice Report: Teaching and Learning in Clinic’ (2015) 22 International Journal of Clinical Legal Education [ci].
39 See for instance Douglas B Clark and others, ‘Analytic Frameworks for Assessing Dialogic Argumentation in Online Learning Environments’ (2007) 19 Educational Psychology Review 343; Victor Sampson, Jonathon Grooms and Joi Phelps Walker, ‘Argument-Driven Inquiry as a Way to Help Students Learn How to Participate in Scientific Argumentation and Craft Written Arguments: An Exploratory Study’ (2011) 95 Science Education 217.
40 Bone and Hinett (n 16).
41 RM Epstein and EM Hundert, ‘Defining and Assessing Professional Competence’ (2002) 287 Journal of the American Medical Association 226.
42 RM Epstein, ‘Assessment in Medical Education’ (2007) 356 The New England Journal of Medicine 387.
43 For liveblogs of the event, see Paul Maharg, ‘50 Years of Assessment in Legal Education – liveblog’, <http://paulmaharg.com/2015/01/30/50-years-of-assessment-in-legal-education-liveblog/> and ‘50 Years of Assessment in Legal Education – pm’, <http://paulmaharg.com/2015/01/30/50-years-of-assessment-in-legal-education-liveblog-pm/> accessed 29 January 2018.
44 By contrast, it should be noted that the SPARQs (Student Partnerships in Quality Scotland – see www.sparqs.ac.uk/) that are an essential element of the Scottish HE system of Quality Enhancement (QE) allow for much more freedom of expression as well as space to develop viewpoints and arguments; and the system of QE gives higher status to student voicings of their experiences.
45 See Hasok Chang, ‘Turning an Undergraduate Class into a Professional Research Community’ (2007) 10 Teaching in Higher Education 387. See also the work of the Canadian historian Sean Kheraj, at Sean Kheraj, ‘HIST 2500 Syllabus’ (Sean Kheraj: Canadian History and Environment, 2018) <www.seankheraj.com/hist2500/>.
46 In this respect it is useful to bear in mind the controversial example of ANU students who published a report into legal education at ANU College of Law in 2010: A Boag and others, Breaking the Frozen Sea: The Case for Reforming Legal Education at the Australian National University (ANU Law School Reform Committee 2010).
47 Stefan Collini, ‘Sold Out’, The London Review of Books, 24 October 2013, 3–12. Collini is summarising the Coalition government policy in the UK with regard to HE fees in England and Wales. In Scotland fees were abolished by the Scottish National Party government, but that has created other problems for HE institutions in that nation.