Assessment and Problem-Based Learning in the Law Curriculum: The PREPS Framework

By Anil Balan

Assessment and Problem-Based Learning in the Law Curriculum addresses one of the big questions in legal education: how to adapt curriculum and assessment design for the skills development and employability agenda. The book explores the practical challenges faced by law schools in adapting to the evolving landscape of legal education, particularly in light of the introduction of the Solicitors’ Qualifying Examination (SQE). Drawing from rigorous independent research as well as scholarly literature, the book highlights the integration of vocational pedagogies such as authentic assessment and problem-based learning as particular areas of focus. Through a thorough examination of these areas, Balan provides practical insights, strategies and recommendations for improving legal education and preparing graduates for successful legal careers. By addressing the challenges of integrating vocational pedagogies, he provides a comprehensive guide for legal educators, administrators and policymakers seeking to improve legal education. The book will equip law schools with the knowledge, strategies and recommendations necessary to enhance the educational experience, to foster student success and to prepare graduates for the evolving demands of the legal profession. Assessment and Problem-Based Learning in the Law Curriculum thus offers a transformative vision of legal education and provides an indispensable resource for anyone seeking to create an inclusive and supportive educational environment that nurtures the holistic growth and success of law students.

• Language: English
• Publisher: London Publishing Partnership
• Release date: Sep 28, 2023
• ISBN: 9781913019969

Anil Balan

Anil Balan is a senior lecturer in professional legal education at the Dickson Poon School of Law, King’s College London. He holds bachelors and masters degrees in law and legal practice and masters and doctoral degrees in higher and professional education from Oxford, King’s and UCL. He was previously a principal lecturer in law at the University of East London (UEL) and course leader for the undergraduate law programme at UEL. He is also a senior fellow of the Higher Education Academy and an external examiner at the University of Chester. Anil practised as a solicitor in the fields of commercial litigation, corporate insolvency and family law at two large national firms for ten years before entering academia.

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Assessment and Problem-based Learning in the Law Curriculum

Assessment and Problem-based Learning in the Law Curriculum

The PREPS Framework

Anil Balan

London Publishing Partnership

Copyright © 2023 by Anil Balan

Published by London Publishing Partnership

www.londonpublishingpartnership.co.uk

All rights reserved

ISBN: 978-1-913019-94-5 (pbk)

ISBN: 978-1-913019-95-2 (ePDF)

ISBN: 978-1-913019-96-9 (ePUB)

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Contents

Preface: introduction and rationale

Part I: Authentic Assessment and PBL in legal education

Background and context

Vocational pedagogies

Research design and methods

Discussion of findings

Part II: THE PREPS FRAMEWORK

Preparing students for professional legal practice

Building resilience and improving engagement for widening participation students

Teacher and student adaptation to changing environments

Responding to challenges of vocational pedagogies

Integrating academic skills and vocational skills

Conclusions and recommendations

Notes

Sources

Preface: introduction and rationale

The priority given to skills development and employability by the relevant professional regulatory bodies for both higher education and legal practice has increased greatly in recent years. It is therefore timely to investigate the practical challenges brought about by the introduction of vocational pedagogies such as authentic assessment and problem-based learning (PBL) into the academic traditions of university law courses.

The impact of the employability agenda is perhaps felt most acutely at institutions such as my own former employer, the University of East London (UEL). At UEL I was the undergraduate course leader for law, and this was the primary institutional context for the empirical study that provides the foundation for this book – a study that was carried out in 2020 and 2021 as part of my doctoral thesis.1

UEL has a high population of students from ‘widening participation backgrounds’: this is a generic term used to signify students from non-traditional social, economic and ethnic backgrounds. Law teachers at UEL therefore face additional challenges in terms of teaching and assessing to meet the employability agenda, and with limited resources and less freedom, it is the ideal of a more rounded liberal education that suffers.

The incorporation of skills into law teaching is markedly different between ‘new’ (i.e. post-1992) institutions and older universities. A majority of the former expressly incorporate skills – such as drafting, interviewing, negotiation and communication – into dedicated modules or topics within modules; only a minority of the latter do this, and they are more likely to incorporate skills implicitly instead.2 The literature also suggests that in new universities the student experience has been more centred on vocational preparation and that, in contrast to their peers in older universities, who had grown apart from legal practitioners, the commercial function of the law degree was perhaps more keenly felt at new universities.3

As a new university, UEL therefore teaches skills in a different way from the older universities, in that it is explicit rather than implicit in the curriculum, with specific modules, and topics within modules, devoted to skills teaching. The more established tradition of teaching professional legal skills explicitly at a new university and the greater familiarity of its staff with vocational approaches provided a strong justification for a study in this context. The impetus for this research therefore came in part from my own practical experience: that of a law teacher at an institution that is directly and heavily influenced by the employability agenda.

Part of the rationale for my empirical study was that the crucial perspective of law teachers on the challenges they face in teaching professional legal skills has not been given sufficient consideration. This is a significant gap, given that law teachers play a key role in effecting change within their institutions, and it suggests that the key findings of my research have the potential to have a major impact on legal skills teaching. A study that identifies how authentic teaching and assessment have been used previously, what challenges are faced and how these might be overcome also has wider significance for approaching legal skills teaching in the future. Specifically, the framework that emerged out of my study provides a set of guiding principles for incorporating authentic assessment and PBL into the law curriculum in order to prepare students for employment. These guiding principles are based on themes identified through empirical research: teaching for professional practice, teaching for resilience and engagement, teaching that adapts to the environment, teaching that responds to the challenges presented by vocational pedagogies, and teaching that integrates academic and vocational skills. I refer to these principles as the PREPS framework: shorthand for practice, resilience, environment, pedagogy and skills.

As I have already said, skills development and employability have become central aspects of legal education in recent years. This is because, as well as academic learning, students are increasingly expected to acquire training in reading, thinking, communicating and solving problems like a professional lawyer. This process mirrors developments in higher education more broadly, where the economic considerations of the value of an undergraduate degree have come to dominate debates about the quality of higher education. This is now such a prevalent way of thinking that the main educational purpose of a degree often now largely seems to be to prepare students for a future role in the workforce.

Following the mass expansion in higher education participation in the late 1980s and early 1990s, the issue of what key skills are relevant for employment (and throughout life) was the focus of the Dearing Report in 1997.4 Dearing defined a set of generic skills to enhance graduate employability – including communication, literacy and numeracy, and problem-solving, team-working and IT skills – and he recommended that the provision of such skills should become a central aim for higher education. Reflecting the influence of the Dearing Report, employability is also now used as a benchmark for evaluating universities, increasingly being regarded as a priority by the relevant professional and regulatory bodies for UK higher education. By addressing the employability and skills development agenda, this book should thereby have a favourable impact upon many law students, not just those who will become legal practitioners.

For law in particular, the report that came out of the Legal Education and Training Review (LETR)5 recommended that more emphasis on legal research skills, communication skills and writing for a range of purposes were desirable at all stages of legal education. Graduate employability is also a strong focus within both the Teaching Excellence Framework (TEF) and the Quality Assurance Agency’s Subject Benchmark Statement: Law,6 which identifies skills and attributes (as well as knowledge) as being key components of a law degree.

In 2015 the Solicitors’ Regulation Authority (the professional regulatory body for solicitors) issued a new competency statement identifying the standards required for solicitors. It included using language appropriately and showing sensitivity when needed. The Solicitors Qualifying Examination (SQE) is a new centralized assessment designed to test whether students have met the standards set out in this statement. It launched in 2021, and the first assessments took place during the 2021/22 academic year. Adapting my own personal and institutional practices to address the challenges presented by the SQE, which has a strong focus on professional legal skills, is therefore a practical concern for me as well as a research interest.

These recent changes in the approach to qualification introduced by the professional and regulatory bodies create new challenges both for universities and for students in relation to the acquisition of legal skills and the extent to which these elements should be incorporated into law degrees. In particular, it can be argued that the SQE places a greater responsibility than ever before on university law schools to prepare law students for entry into the legal profession rather than leaving this to vocational training providers, as was the case previously. The overall drive seems to be to create a pervasive context within which professional skills are developed. This provides a strong justification for developing a framework for teaching legal skills in order to prepare students for employment.

Although student engagement is key to any employability-­related curriculum reform, some commentators believe that law teachers hold the primary responsibility for effecting change.7 Part of the rationale for this book was that the crucial perspective of law teachers towards teaching professional legal skills – and the challenges they might face in doing so – has not been given sufficient consideration.

An issue to consider in this context is the potential friction between a liberal approach to legal education and a vocational one, with the traditional focus of the former mainly on preparing law students to develop into better citizens and the main aim of the latter being preparation for professional practice. Again, this is a tension that is reflected in higher education more broadly, with the problematic move towards understanding the value of a degree in purely economic terms having already been noted.8 If educational quality is linked solely to the earning potential of graduates after they leave university, this ignores the vital transformational impact of higher education in terms of shaping students’ sense of who they are, what they can do in the world, and the role of extraneous factors such as social privilege and perceived institutional prestige on shaping educational and employment outcomes.

Law teachers are likely to encounter this tension mainly in the context of curriculum design, particularly in relation to assessment and in terms of how much time should be devoted to teaching skills such as writing, research and advocacy as opposed to black letter law, i.e. the technical content of law degrees. Traditionally, university law schools in the UK have focused on the latter, with the former being regarded more as the preserve of ‘on-the-job’ training, with the legal professional bodies using an apprenticeship model under which aspiring legal professionals learned in the workplace from experienced practitioners.

Only very recently has this traditional divide started to blur, and the change has brought with it particular problems for law teachers who wish to achieve the dual goals of encouraging deeper engagement among law students and contextualizing their classroom experiences. A central argument of this book is that skills – whether they are vocational (‘soft’ skills applied in practice, e.g. negotiation, advising, advocacy) or more traditionally academic (‘hard’ skills perceived as leading to the outcomes of a liberal legal education, e.g. reading, research, reasoning) – are mostly contextualized to their field of study rather than being wholly generic. Additionally, I argue that vocational pedagogies can potentially contextualize the development of legal skills and can help develop graduate attributes in the context of the discipline that is being studied. The use of the terms ‘academic skills’ and ‘vocational skills’, and even the distinction between the two, is recognized as problematic, however, and this will also be examined in this book.

The question, therefore, is not so much whether law programmes should increase the amount of legal skills teaching they provide, but rather how far-reaching this implementation should be in terms of curriculum and assessment design; the extent to which the most important stakeholders, such as law teachers, agree; and, ultimately, what approach this curriculum development should take. To address these issues, it is important to identify how teaching and assessment is being carried out at present, what challenges and opportunities are provided by current practices in this area, what needs to change, and how these changes are to be implemented, bearing in mind the practicalities that affect what interventions can be made, e.g. the effect of the coronavirus pandemic on face-to-face teaching (see below). Identifying and attempting to resolve these issues is a principal aim of this book, and I hope that addressing them will lead to wider implications for legal education in the context of the employability agenda, as well as recommendations for professional practice.

The ultimate aim of the study that provides the basis for this book was to develop a set of guidelines with a uniquely empirical basis: the PREPS framework, which is discussed in part II. This can be applied usefully by law teachers in the teaching of legal skills in order to prepare law students for employment by guiding the design of learning outcomes and assessment tasks in individual modules and throughout the law curriculum. As will be demonstrated in the chapters that follow, PBL and authentic assessment were the primary focus of my research because it is argued that assessment, both formative and summative, is an effective means of contextualizing employability skills in the curriculum, and authenticity is a key characteristic of assessment design that promotes employability. PBL and authentic assessment were therefore used in the study as lenses through which to examine the curriculum and the assessment design challenges that have been experienced in introducing vocational elements into academic courses.

Bearing in mind that the Covid-19 health crisis hit at the start of 2020, it is important to mention that the PREPS framework was developed in the context of an ongoing global pandemic. I was well aware that this might have an impact on not only the methodology of my study, but also its findings. I therefore anticipated some discussion of, for example, the shift to online teaching and assessment as a result of the pandemic, even if this was not the main focus of my research.

In just over three years, much has already been written about the effect of the pandemic on teaching and learning, both generally and in the context of legal education. It has been suggested that the challenging aspects of taking risks and making errors while learning to teach online seem to have been mitigated by a combination of more beneficial factors such as humility, empathy and even optimism among teachers. However, teachers have also said that transitioning online in the context of a pandemic distorts usual longitudinal perceptions of preparation and readiness. 9

Something that has been widely discussed is the significant impact that the pandemic had in 2020 on graduate employment: for example, leading law firms deferred their graduate recruitment programmes; staff were asked to buy leave; and hiring, salary and promotion freezes were announced. It has been argued that the repercussions of the Covid-19 pandemic may reverberate in the legal profession not only in the short and medium term, but for years to come.10 This may result in greater expectations being placed on graduate employability skills, e.g. with regard to information and communications technology (ICT) proficiency, problem-solving skills and resilience. There might be practical difficulties in meeting these challenges, and that is something that this book will help to uncover.

*

The rest of this book is divided into two main parts. Part I covers the theoretical basis and the context for the PREPS framework, as well as looking at the methodology for my research (including the approach to analysis and a discussion of the main findings of the empirical study). The participants in the empirical study were law teachers teaching legal skills to students from widening participation backgrounds, and the study’s findings therefore have particular relevance to widening participation institutions, which have tended to place a more explicit focus on legal skills teaching but which face additional challenges in terms of teaching and assessing to meet the employability agenda, with limited resources and less freedom. The findings of this research therefore have practical implications for the design of modules incorporating legal skills in the future, as well as being an original contribution to the literature in this field.

Part II is the main part of the book: it contains a detailed breakdown of the PREPS framework and how it can work in practice. This part can be read on its own, but part I does provide important background information for the framework. The PREPS framework can be usefully applied by law teachers to address the employability and skills development agenda within their institutions by guiding the design of module learning outcomes and classroom activities, and by helping with writing assessment tasks and criteria. An authentic teaching and assessment framework for legal education is particularly advantageous and timely given that, in light of wider developments in higher education and legal practice, law schools have become increasingly responsive to curriculum innovation in recent years as well as being more willing to try out new initiatives.

Rather than leading to major disruptive changes and interventions, the innovations proposed in this book can help to harness and build upon what may well already be taking place in law schools. As such, the potential impact of this book will be to allow the process of curriculum change within law schools to occur more smoothly than