Legal education: a reply

Like most other things, law teaching has been significantly affected by the COVID-19 pandemic. In this regard the article “Legal education: discontent with content” (Journal, February 2021, 16) by Derek Auchie, Professor of Dispute Process Law at the University of Aberdeen, is timely. He is right to seek a debate on how law teaching may be improved in the future.

Within certain limits, including the Law Society of Scotland’s required syllabus, there should not be a mindset that things should automatically return to how they were before. As law teachers at two other Scottish universities we welcome the opportunity to contribute to this discussion. We do so from the standpoint of being specialists in property law.

The “transactional” approach in outline

In his article, Professor Auchie expresses concern at the amount of detail which Scottish undergraduate law students are expected to learn. He argues that it would be better to move to a more “transactional” approach to legal education. As we understand it, this means learning law through the medium of concrete legal transactions, that is to say ”the mechanisms within which the law is applied”.

Thus, the law of contract would be studied by following a specific contract through all its stages, from initial negotiations to interpretation and enforcement of its terms. Criminal law would be taught through the study of specific criminal charges. The aim is “to learn the principles and the application of the law through transactions”.

At the same time, the actual quantity of law studied would be significantly reduced. Indeed, Auchie goes as far as to suggest that black letter law might even be compressed at ordinary level into the first year of the LLB, followed by a second year in which subjects are studied in a dispute resolution context. There would be no need to teach ”all basic legal subjects to all students”. In summary, the study of legal technique is much more important than the study of legal rules.

We have sympathy with some of these views. Certainly, if we as law teachers were producing graduates with no notion of how the law works in practice, we would deserve criticism. Again, it is self-evident that there is far too much law for the LLB degree to do more than scratch the surface. There is therefore a debate to be had about what we include and how it is taught. Nonetheless, we are not persuaded that Professor Auchie’s proposals, if implemented, would represent an improvement in legal education in this country.

Appropriateness for all subjects

A preliminary point is that the transactional approach works better with some subjects than others. It is less easy perhaps to see legal system, public law or legal theory being taught in this way. By contrast, the law of contract, as Auchie discusses, is a natural fit. Use is already made of this sort of approach in suitable circumstances, and we wonder if he overestimates the extent to which current teaching approaches are radically different from what is envisaged.

For example, in the contract law course at Edinburgh Law School, Professor Hector MacQueen perhaps unsurprisingly takes the same structure to the subject as his MacQueen and Thomson on Contract Law in Scotland (5th ed, 2020). Thus he considers formation, before moving on to content, performance and then breach. This is the same ”life cycle” approach as Auchie suggests, albeit he proposes this should be done under reference to a specific example of a contract which students would be given.

A similar approach is also currently taken in property law in both of the authors’ institutions where, for example, missives of sale, the content of a disposition, and land registration are taught in that order, with reference being made to the Scottish Standard Clauses and ScotLIS. Nonetheless, we believe that there are dangers in wholesale adoption of Auchie’s proposal.

Theory and practice

Our principal objection is that it would fail to give students a sufficient conceptual underpinning of subjects. We disagree with the apparent assertion that conceptual issues are more relevant to academics and law reform bodies. As an aside, when one of us was a Law Commissioner practical issues were often intertwined with conceptual ones. For example, there are diverging views amongst agricultural and commercial practitioners over the implications of a lease being extinguished by the doctrine of confusion if the tenant buys the land. 

Professor Auchie suggests that it is only essential for the basic principles to be taught. Expecting students to know particular detail beyond that is unnecessary. Of course, this is a question of scale. We think the danger here is of metaphorically skipping across the top of a subject. Thus, presumably in the sale of land example above there would be little focus on conceptually important rules such as s 86 of the Land Registration etc (Scotland) Act 2012, on the basis that few transactions engage these. The nemo plus (or nemo dat) rule, we would assume, is so fundamental that it would be taught, but there may be no time for the exceptions to it, of which s 86 is one.

At a wider level, a transactional approach risks producing lawyers who are very good at filling in forms (something on which the Diploma in Professional Legal Practice rightly focuses), but who have little real understanding of what they are doing, and who falter if a difficult point of law arises. Our fundamental point is made in the title to a book produced as a tribute to one of our own teachers: A J M Steven, R G Anderson and J MacLeod (eds), Nothing so Practical as a Good Theory: Festschrift for George L Gretton (2017).

Difficult issues

Auchie’s claim that perhaps only 1% of legal practice involves difficult legal issues is debatable. Even if it is correct, it does not follow that the balance in legal education should be the same. Much of just about any job is routine in nature. Goalkeepers spend most of the match standing in the penalty area, waiting to be called into action, but they undergo countless hours of training on how to save a shot. It often makes sense to focus attention on things that are difficult to master.

There is of course no getting away from the fact that law is complex. Any difficult body of knowledge can only be understood through focused, in-depth engagement. For example, although difficult issues of mens rea rarely arise in criminal practice, what kind of criminal lawyer would not recognise such an issue when it does arise? It is hard to see how the necessary understanding could ever be acquired in a piecemeal fashion as issues happened to arise in particular cases, as opposed to focused consideration of mens rea itself.

It is true of course that much of what is learned in law school is forgotten by the time the student emerges into practice. The brain can only retain a finite amount of information. However, that does not mean the effort was useless. A person trying to build physical strength does not have to remember every press-up in order to benefit from it. In much the same way, engagement with legal material builds the necessary mental muscles.

We agree that where difficult points arise, it is possible to look things up. Not all issues are covered in legal literature, though, and the Scottish legal profession has not always been even as well off for literature as it is now. There is even a risk that Professor Auchie’s proposals could reduce the number of people able to write the law books of the future, because of a lack of exposure to sufficient detail at undergraduate level.

Moving forward

We would not therefore support a move towards the transactional approach which is envisaged. This is not because we are complacent, or some form of legal luddites. In recent years both of us have written new ordinary level property law textbooks because we felt there was a clear need for this. We each frequently teach cases using Google Streetview, which allows students to see the locus.

We accept that we need to monitor the level of detail that we impart, taking account of changes in practice and society. For example, negotiable instruments have now been dropped from the commercial law course because of their increasing disuse due to digitalisation. This was possible because the Law Society of Scotland removed them from its syllabus, and therefore the Society too has a role here. The possibilities of linkages between courses justify consideration, but we think there are risks of superficiality when teaching more than one thing at the one time. 

On a wider level, Professor Auchie also questions whether we should return to live lectures once health restrictions allow, or keep to pre-recorded materials. While attitudes to this vary, we both see great value in live large group teaching, even if this is online. It offers the opportunity for engagement between teacher and student. The sea (or pond at 9am on a Friday) of faces in a lecture theatre will react if the lesson is not comprehensible, and a different form of explanation can then be tried.

At its best a live lecture can entertain and inspire. Those who go on to study subjects at a deeper level, including for a doctorate, often do so because the subject was expounded in an engaging way at ordinary level. In our experience at least, this is more difficult in a podcast. We are not convinced that only having small group live teaching is as good, and as Auchie accepts, there are clear human resourcing issues here.

He closes his article by expressing the hope of “starting a broad conversation on whether, and if so how, we can improve on educating future professionals in law”. We welcome this. After all, we have a shared aim here, of having legal education in Scotland be the best it can be. We accordingly offer these comments in the same spirit.