Thinking in legal educ

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Australian Law Schools: A Discipline assessment for the Commonwealth Tertiary Education Commission, Vol 1 (Australian Government Publishing Service, 1987).

38 Eugene Clark, Australian Legal Education a Decade After the Peace Report

(Australian Government Publishing Service, 1994).

39 Including the University of the Sunshine Coast, which is due to open its Law

School in 2014.

40 See generally, Glyn Davis, ‘The Rising Phoenix of Competition’ (2006) 11

Griffith Review 13, 21. Since the 1950s, the proportion of the community with a

University education has increased 23-fold. In 1950, there were 30,000 students
These changes have placed competing pressures on law schools. Firstly, there is pressure to broaden law degrees and reduce the focus on legal skills. This is because a large number of graduates do not end up practising law either because of the scarcity of legal jobs or because they never intended to do so. However, alongside this pressure to broaden the role of legal education is a countervailing pressure from the profession and students to ensure that graduates have the requisite skills to practise in an increasingly competitive job market.

Nickolas James describes the trend in the 1990s towards a

clinical or skills-based education’.41 The trend away from articles of clerkship and practical training within the profession has meant that on-the-job training has largely been replaced by the ‘virtual workplace’ and the ‘mock file’. Law firms hire graduates already admitted to practice, and they expect these students to be proficient in the practical skills required. The emphasis on ‘practical skills’ often pulls against attempts to introduce critical engagement with the law.

More generally, the pressure to teach skills competes with the traditional role of universities as places of free intellectual inquiry and critical thinking. This tension is not unique to Australian law schools. An influential review of US Law Schools, the 1992 MacCrate Report commissioned by the American Bar Association, observed:
Thus, a gap develops between the expectation and the reality, resulting in complaints and recriminations from legal educators and practicing lawyers. The lament of the practicing bar is a steady refrain: ‘They cant draft a contract, they cant write, they’ve never seen a summons, the professors have never been inside a courtroom.’ Law schools offer the traditional responses: ‘We teach them how to think, we’re not trade schools, we’re centers of scholarship and learning, practice is best taught by practitioners.’42
In response to such sentiments, many legal educators and professionals have emphasised the harmony between the goals of training good lawyers and teaching critical engagement with the

in Universities in Australia. In 2006, there were more than 940,000, including

228,000 international students. In 1988, the Labor Minister for Education, John Dawkins, consolidated 63 Higher Education providers into 36 universities. In doing so, the distinction between technical training and traditional university education disappeared at a formal level.

41 James, above n 17, 976.

42 American Bar Association, Section on Legal Education and Admissions to the Bar, Legal Education and Professional Development — An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (ABA, 1992).
law. This line of thinking is articulated by English Professor Sir Otto

Kahn-Freund, who argued:
There is in fact no contradiction between the needs of an academic professional education and those of a vocational training. English law does not consist of an uncoordinated mass of rules for practitioners which can only be learnt by rote. The unquestioning acceptance of judicial decisions or utterances is not part of the professional equipment of an English lawyer.43
We return to the core elements of a legal education in Part III of this article, where we explore this relationship between doctrine, theory and skills.

As we have already demonstrated, the professional regulation of Australian law schools has been predominantly concerned with the doctrinal content of law degrees. In 1994, the Law Council of Australia created a ‘Blueprint for the Structure of the Legal Profession’. The Blueprint included a list of 10 areas of law that needed to be studied for admission. The Council proposed that these subjects be taught ‘in the context of an overall course of study which provides: a well-rounded education in the law; a level of scholarship usually associated with a course leading to an undergraduate degree; a good grounding in the analytical, communication and other skills required of a lawyer in a modern society; and which placed the theory in a practical context.’44

The Law Admissions Consultative Committee, headed by Justice Priestley, expanded the list to 11 core subject areas criminal law and procedure, torts, contracts, property, equity, company law, administrative law, federal and state constitutional law, civil procedure, evidence, ethics and professional responsibility. The Law Council of Australia has since compared the academic requirements in Australia with those in other jurisdictions and considered options for reform.45
43 Extracted in J H Wade, ‘Legal Education in Australia Anomie, Angst, and Excellence’ (1989) 39 Journal of Legal Education 189, 195; see also Charles Sampford and David Wood, ‘Theoretical Dimensions of Legal Education’ in John Goldring, Charles Sampford and Ralph Simmonds (eds) New Foundations in Legal Education (Cavendish Publishing, 1998) 100, 115; Andrew Stewart, ‘Educating Australian Lawyers’ in Charles Sampford, Sophie Blencowe and Suzanne Condlln (eds), Educating Lawyers for a Less Adversarial System (Federation Press 1999)

132, 148-9.

44 Law Council of Australia, Blueprint for the Structure of the Legal Profession: A National Market for Legal Services (1994), 3
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