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    Mackinnon, Problem Based Learning and New Zealand Legal Education [2006] 3 Web JCLI

    http://webjcli.ncl.ac.uk/2006/issue3/mackinnon3.html

    Problem Based Learning and New Zealand Legal Education

    Jacquelin Mackinnon

    Senior Lecturer, School of Law

    University of Waikato, Hamilton, New Zealand.

    [email protected]

    Copyright Jacquelin Mackinnon 2006First published in Web Journal of Current Legal Issues

    SummaryThe literature (and e-literature) on Problem Based Learning in Law suggests that this approach

    has been adopted with enthusiasm by some lecturers in the United Kingdom, Europe and Hong

    Kong. This article will explore the adoption of PBL approaches through the literature in order todraw some conclusions about the nature of PBL approaches in law and their relationship withinstitutional approaches to legal education. Problem Based Learning approaches are not visible

    in New Zealand. The article discusses the reasons for PBLs invisibility and PBLs

    appropriateness in the New Zealand legal education context now and in the future of legal work.Part of the New Zealand context is the participation of the indigenous people in legal education

    and consideration is given to whether PBL can benefit Mori law students.

    It is suggested that PBL approaches to learning law promote:

    Contextualisation

    Interdisciplinarity

    Integration of prior personal and/or professional knowledge

    Collaboration Enquiry skills

    Reflection and transition

    Self directed learning and self assessment

    Praxis.

    Problem Based Learning requires and fosters reflexive participants, who are sufficiently

    conceptually literate to read and critique key aspects of the social order and to understand their

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    own, and others status and role in it. Reflexivity contributes to humanist as well as legal

    solutions to complex human problems. PBL approaches are consistent with legal education in anincreasingly global employment market.

    Contents

    Introduction

    Characteristics of Problem Based Learning

    Advantages of Problem Based LearningDisadvantages of PBL approaches

    Theoretical drawbacks

    Institutional drawbacks

    Partial PBLWill Problem Based Learning be adopted by New Zealand Law Schools?

    The Law Schools and adoption of Problem Based Learning

    The New Zealand Universities and the adoption of Problem Based LearningLegal academics and adoption of Problem Based Learning

    Problem Based Learning and conceptions of teaching and learning.

    Legal Knowledge and Legal Pedagogy: resistance to PBL

    The Legal Profession and other employersThe New Zealand Council of Legal Education

    Government and Funding

    StudentsConclusion

    Bibliography

    Introduction

    Problem Based Learning (PBL) approaches support the achievement of university legal

    education goals. These goals are articulated by the various stakeholders in university legal

    education. It would appear that there is a gulf between the rhetoric of university goal-settingand the reality of teaching and learning law in New Zealand that could be narrowed by the

    adoption of PBL. Law schools are not untouched by massification issues in higher education

    and a growing number of law lecturers are serious consumers of and contributors to higher

    education literature, yet PBL approaches to teaching and learning do not appear to be used in

    New Zealand law schools. There are serious barriers to implementing PBL approaches in NewZealand and some of those barriers may also exist in the United Kingdom, Australia and Hong

    Kong. This article sets out the benefits of PBL in the context of the increased number ofheterogeneous students, and the rapidly changing world of legal work. PBL approaches are

    consistent with the idea (and ideal) of a liberal and humanistic legal education. In the New

    Zealand context, it is suggested that PBL can be an appropriate part of a bicultural approach to

    legal education. A bicultural approach to legal education requires an understanding of Moriprinciples and values, of beliefs about knowledge and the sharing of knowledge, and of ways of

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    learning. Problem Based Learning characteristics appear to be consistent with Mori pedagogies,

    although this area requires further research. Approaches to teaching and learning, however,which encourage critical examination of ourselves as law teachers and curriculum designers, and

    our discipline, are unlikely to find favour with university managers focussed outwards on

    servicing consumers and responding to market demand.

    This article is in two parts. The first looks at characteristics of PBL and their relevance to the

    education of legal knowledge workers. In the second part, a stakeholder analysis is used to

    identify barriers to PBL adoption in New Zealand. A stakeholder analysis reflects universityeducation discourse in New Zealand. Also, it is appropriate to use a stakeholder analysis because

    of the clear evidence of past stakeholder influence on conceptions of teaching and learning law,

    and the development of undergraduate legal education in New Zealand. Such a methodologyproperly takes into account when considering change the interests of any current group or

    individual who can affect, or is affected by the achievement of changes to legal education (or any

    future group or individual whom one can predict will affect or will be affected by such

    achievement) and who has rights that can be violated or ought to be respected. (Evan and

    Freeman 1988, inter alia p100).

    Characteristics of Problem Based Learning

    The following characteristics are used to compare PBL with problem solving approaches toteaching and learning law:

    With PBL, theo problem is the first step in learningo problem is constructed by learners presented with real-life taskso learners identify learning needs and methods of knowledge acquisition, helped by

    capable peers

    o new learning is then applied back to the problem and integrated into existingknowledge and skills as an iterative process

    o learner is central to the approach. (Boud and Feletti (Eds), 1991 et al.)

    With problem solving, theo problem follows topic/discipline informationo problem is already constructed within topic/discipline boundarieso solutions reflect the topic boundaries and are based on taught materialso skills needed to solve problems may or may not have been taughto problem solving approach is teacher centred.

    A distinction is thus made between the use of problem solving in teaching and Problem Based

    Learning. Law schools have traditionally used problem solving for teaching and assessment.Problem solving in this context involves the application of knowledge already gained tohypothetical fact situations that give rise to legal issues. This is ordinarily done at the end of a

    conceptual unit or at the end of a course and assesses knowledge either formally (in

    examinations) or informally (within a tutorial group, for example). The lecturer assigns the

    reading required for the problem and the problem is distributed contemporaneously with thereadings or at the end of the conceptual unit, or the problem appears in the final examination.

    The focus is on information provided by the teacher and evaluation of the solution proposed by

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    the student based on that information. The problem content is usually confined to the particular

    conceptual unit within a course (except where used in final examinations) and is unlikely torequire an interdisciplinary or multiple legal category analysis. Students may, or may not, have

    learned problem solving skills and strategies prior to addressing the problem. Problem solving,

    as traditionally employed in law schools, is used to test learning that has already occurred and

    this is different from Problem Based Learning, which is used to motivate and focus knowledgeand skills acquisition and reflection on learning.

    Advantages of Problem Based Learning

    Problem Based Learning is a method of teaching and a way of learning. (Engle 1991, p23.) It hasno set definition, but there are common conceptual elements to approaches to teaching and

    learning that self-identify, or have been identified, as Problem Based Learning. At its heart is the

    use of real world problems to motivate and focus learning. Problem Based Learning builds on

    research into the effectiveness of experiential learning and the accommodation of differentlearning styles. It values the acquisition of generic competencies with regard to learning that are

    necessary for a world where knowledge rapidly changes and is in line with the current emphasison independent learning. (Boud, 1995; OSullivan 1999.) It supports abstract thinking and

    critical thinking. It can provide learners with an opportunity to

    examine the underlying structures and belief systems implicit within a discipline or

    professionin order to not only understand the disciplinary area, but also its credence.(Savin-Baden 2000, p 133).

    Learners can become reflexive practitioners. Problem Based Learning reflects a constructivist

    view of learning, where knowledge is constructed internally and tested through interaction withthe outside world, and the Vygotskian social constructivist perspective which stresses the

    importance of social context for knowledge development. (Trigwell and Prosser, 1997 pp 241-252.) PBL can help teachers and learners meet key challenges in tertiary education systems(including that in New Zealand) characterised by increasing student numbers, increasing

    numbers of students from non-traditional backgrounds, in line with policies of increased

    participation in higher education (Statement of Tertiary Education Priorities, 2005-2007 (NZ)),and highly instrumental curricula (arguably in reaction to funding constrains and studentsdemands (Brand: 1999, p 111))

    Problem Based Learning is not new, having been employed in higher education institutions since

    the 1950s. The literature reviewed suggests that the adoption of Problem Based Learning is

    prevalent in First World countries and professional schools of study in tertiary institutions, for

    example McMaster University Department of Medicine, Canada and Maastricht Faculty of Law,The Netherlands. (Moust 1998, pp 5-36.) Yet there is comparatively little written about the use

    of Problem Based Learning in the discipline of Law in countries that share a legal education

    tradition with New Zealand. In 1997, Murdoch University School of Law, Australia (as well as

    Maastricht Faculty of Law) regarded Problem Based Learning as a new instructional approachfor law. There is also evidence of confusion regarding the nature of Problem Based Learning

    amongst legal educators, who may believe that use of the case method or hypothetical questions

    is Problem Based Learning when it is not. (Tzannes 1997, pp180-197.)

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    The principal idea behind Problem Based Learning is that the starting point for learning

    should be a problem, a query or a puzzle that the learner wishes to solve. (Boud 1985, pp 13-

    18.) The problem, query or puzzle is the motivation for and focus of the learning. The motivation

    is due to interest in the subject matter. Students learn through discovery; discovery of the nature

    of the problem/issues, discovery of the processes required for issue identification, analysis,synthesis and evaluation of materials, and discovery of solutions. The teacher becomes the

    facilitator of discovery to a greater or lesser extent. (For a discussion on open and guided

    discovery see Swanson, Case and van der Vleuten 1991.) Problem Based Learning fostersscholarship and facilitates contributions to knowledge and to society at a time of accelerating and

    massive change (Engle 1991, p 23.) and reflects the articulated values and goals of higher

    education institutions in the Western tradition.

    Although there is no check list of practices, the literature reveals that the major conceptualelements of Problem Based Learning are:

    Contextualisation

    Interdisciplinarity Integration of prior personal and/or professional knowledge

    Collaboration

    Enquiry skills

    Reflection and transition

    Self directed learning and self assessment

    Praxis.

    Adoption of Problem Based Learning involves adoption of some or all of the above elements.

    The advantages of PBL are that it provides students with an experience that is closely aligned

    with the real world of legal work as we currently know it, where problems are unstructured and

    cover legal and non-legal issues; where problems are solved using current and new knowledge;where the knowledge of others may have to be found and integrated; and where the problem

    solver is motivated by personal and professional values. Reflexivity will enable students to be

    self-evaluating and self-aware, and to actively critique and transform the nature of legal work,instead of being passively accepting of change. The reflexive practitioner reflects on experiences

    and makes connections between the various elements of an experience. It is reflection-in-

    action and reflection for action: as the practitioner attempts to make sense of a puzzlingphenomenon, the practitioner reflects on understandings implicit in the action and those

    understandings are surfaced, criticised, restructured and embodied in further action. (Jolly and

    Radcliffe 2000, p 3) This aspect of PBL is important if legal education is to be relevant to legal

    knowledge work as we now know it, and also relevant to contexts of which we can presently see

    only fragments through the work of Beck (2000), Beck, Giddens and Lash (1994), Castells(1996, 1997, 1998) and others.

    If the key challenges for university legal education are that it should be relevant beyond the legal

    profession as presently constructed, to take a collective law school-wide approach to integrate

    matters such as legal theory, interdisciplinarity, ethics, general and legal skills, and issues of

    internationalisation, gender and indigeneity (Keyes and Johnstone 2004, pp 537, 538), then the

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    characteristics of PBL approaches directly address these challenges. PBL is, however, not

    without its critics.

    Disadvantages of PBL approaches

    Adoption of PBL is not without its disadvantages and problems. The problems are, broadlytheoretical and institutional.

    Theoretical drawbacks

    There are a number of models of PBL (Savin-Baden, 2000, p 124 et seq.) It has been argued that

    PBL, in many of its manifestations, is limited to the acquisition and organisation of relevant

    information for decision-making. Reflection and abstract conceptualisation may be unnecessary

    and the PBL experience inferior to real experiential learning. (Drinan 1991, p 315.) Againstthat, the acquisition of relevant information does involve the identification of relevant concepts.

    In the practical situations in which graduates will find themselves, a conceptual framework is

    constructed for the selection, analysis and organisation of information. When presented with astatement of facts, a lawyer must identify facts that give rise to legal issues and facts that give

    rise to non-legal issues and facts that are irrelevant to both legal and non-legal issues. To

    determine legal issues, lawyers must identify the subject matter of the dispute at various levels ofabstraction; facts must be related to legal categories, and the people involved may have a special

    relationship in law or in fact. Available legal remedies are determined by the legal categories into

    which the facts fall and the application of the law related to the legal categories to those facts.

    Fact analysis in law, whether to avoid problems or solve problems involves both reflection andabstract conceptualisation. This is recognisably the broad process of finding solutions to

    problems described by Gagn (1966). Drinans picture of PBL as shallow pragmatism is false. It

    is accepted that there is a lack of comparative evaluation of Problem Based Learning changes to

    curricula (Cawley 1991; Foster and Gilbert 1991) although some useful research has been donemore recently. (Kwan Liddle 2004, p 55.)

    Institutional drawbacks

    PBL is resource intensive, both in design and in delivery. Law schools are by traditionconservative and like to stress their uniqueness, even amongst professional schools. The

    traditional problem solving approach adopted by law schools is not resource intensive and fits

    well with a teacher-centred, lecture plus tutorial approach to teaching and learning. Law schools

    in New Zealand have many more applicants than places and a low dropout rate. Unless there isan impetus for change, institutional support for the well designed incorporation of Problem

    Based Learning with its requirement for sound planning and trained staff is unlikely to beobtained. But evaluation and change should not take place only in reaction to identifieddifficulties. Lecturer workload models ought to include space for evaluation and re-design of

    courses.

    There is a wider institutional context which may militate against the adoption of Problem Based

    Learning. This context, to be found in Canada, Australia, Britain and the US, has been

    summarised as including longer hours of work, increased marking and pressure to publish, new

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    administrative tasks and the fragmentation of work time, loss of collegiality, alienation and

    stress, and "aging, malaise and marginality". (Knight and Trowler 2000, pp 69-83.) ProblemBased Learning needs institutional support, but may succeed where the teaching team for a

    particular paper is committed to this way of learning. Any change to incorporate Problem Based

    Learning requires that all teachers involved are convinced that PBL approaches result in

    effective learning. These teachers have to have a conception of tertiary teaching and learning thattranslates into learner-driven classroom practices. Institutional drawbacks will be further

    considered in the analysis of stakeholder in New Zealand legal education. Despite these

    significant drawbacks (that PBL is misunderstood, resource intensive, and novel) there areexamples of its successful introductioneven in a law school.

    Problem Based Learning: the Maastricht Law School as a model

    Traditional ideas about legal knowledge and legal pedagogy have not been insurmountable

    barriers to the adoption of a PBL curriculum at the Maastricht Law School. It is significant thatPBL was a university-wide initiative, adopted by seven faculties. This introduces economies of

    scale in relation to staff development. It has been argued by Ian Murray and Maggi Savin-Baden

    (2000, p 107) that staff development needs to play a key role in any PBL implementationstrategy. Staff require support to translate PBL characteristics into a coherent curriculum.

    Teaching as facilitation of learning may be a new concept for staff, and it requires different skills

    from teaching as transmission. Learning about PBL models the characteristics of a PBL

    approach when adopted at an institutional level; contextualisation, interdisciplinarity, integrationof prior personal and/or professional knowledge, collaboration, enquiry skills, self directed

    learning and self assessment, and praxis are all required of staff moving towards the adoption of

    PBL.

    At Maastricht, PBL informs the whole of the four-year curriculum. This provides for their

    students a consistency in teaching and learning that breaks down any resistance to students

    engaging with PBL that can occur when PBL is used in one course or a part of a course.Interdisciplinarity in the Maastricht context occurs by requiring students to complete units on a

    specific theme, with content that cuts across traditional legal categories, for example public law

    and private law. The Maastricht Law School website gives access to sample problems from

    various units at .

    The PBL characteristics of collaboration, enquiry skills, self directed learning and selfassessment can be seen in the delivery of the Maastricht PBL process. Teachers across legal

    categories collaborate to produce teaching and learning resources. The resources include

    references to readings, and so the approach is not one of totally self directed learning. It is

    important for students in the early years of a law degree to have some assistance with materials.

    Students of law do not come to the discipline with prior knowledge in the same way as science,history or English students, especially if they are school leavers. Teachers collaboration extends

    to teaching the unit and teaching and learning occurs in small-group tutorials (12 students),

    skills training practicals and lectures. Setting the problem in a real world context, rather thanthe law school world of single legal category problems is intended to stimulate self directed

    enquiry, collation and synthesis of information by the students and ability to apply knowledge tothe problems. Reflection in the midst of and for action is important and reflexive insightscontribute to both problem solutions and priorities for subsequent learning. (Jolly and Radcliffe

    http://www.unimaas.nl/pblhttp://www.unimaas.nl/pblhttp://www.unimaas.nl/pblhttp://www.unimaas.nl/pbl
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    2000.) The learning process is iterative: the students are assisted to identify their learning goals

    and then to reach those goals. Reaching those goals prompts reflection, critical thinking andfurther questions and new goals. Tutorial groups have tutors trained as facilitators. Tutors

    provide questions rather than answers. Students are asked to reflect on their learning process and

    are provided with feedback. An article of this length cannot do justice to the rigour of the

    Maastricht approach (Moust 1998, p 5), but it can be seen that the new curriculum has thesupport of important stakeholders such as the university, the law faculty academic staff and the

    students. It can be inferred that staff and also students have moved beyond the

    transmission/reception idea of teaching and learning. (See also Yang Joel Wong 2003, p 157 asanother example institutional support for curriculum change.)

    Partial PBL

    The Maastricht Law School is unusual in making PBL central to the law curriculum. A numberof PBL law case studies and teaching notes have the following characteristics:

    PBL is used within one course or topic (e.g. Constitutional and Administrative Law at theNorwich Law School, University of East Anglia, UK; Applied Legal Studies at Hong KongPolytechnic University, Hong Kong);

    Change is driven by like-minded law teachers (e.g. Company Law at Southampton Institute, UK)

    or an interdisciplinary group of academics (e.g. Faculty of Law, Queensland University ofTechnology, Australia);

    PBL and teaching law in context are seen as compatible (e.g. Division of Law, Macquarie

    University, Australia).

    Looking from the outside in, it is impossible to know why adoption of PBL approaches is notinstitutionally driven either at law faculty or university level in the particular examples cited. But

    Vivienne Brands article (1999, p 109) on the impact of policy reforms in tertiary education on

    law teaching in Australia provides some insights that might be relevant to institutional attitudesto the adoption of PBL. Brand notes the false dichotomy of legal education that is driven by

    either market requirements or by more realistic educational values. (Brand 1999, p 109)

    Brand states that the Australian universities and their law schools were faced with economic

    policy reforms that forced them to accommodate the market by concentrating on a legalpractice focus while broadening the curriculum to meet diversified student career interests, with

    changes in funding turning student stakeholders into clients.(Brand 1999, p 122.) Brand

    concludes that the impact of the policy reforms has resulted in the reinstitution of closeconnections between academics and the legal profession, an increasing integration of practical

    legal training into degree programmes, bigger class sizes, and inadequate funding for innovation.

    Law schools are offering naming rights to the legal profession in return for sponsorship. (Brand

    1999, p 139.) It would appear that government, the legal profession and students are thedominant stakeholders in shaping legal education in Australia, with academic innovators far

    down the list of stakeholders to be accommodated. There is no meaningful support for

    innovations that have PBLs (more resource intensive) characteristics. The Australian experienceis shared to a large extent by New Zealand.

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    Will Problem Based Learning be adopted by New Zealand Law Schools?

    If the analysis of the advantages of the adoption of PBL and its relevance to present and futurelegal knowledge work is correct, then it is appropriate to consider whether PBL approaches are

    likely to be adopted by New Zealand law schools. Problem Based Learning approaches to

    learning law in New Zealand are not visible in the literature on PBL. This is not to say that

    partial adoption of PBL has not taken place. In the absence of evidence from the literature, it isdifficult to conclude anything other than that PBL has not been adopted as central to the law

    curriculum. That law teaching is traditionally individualised and isolating is as true for NewZealand as elsewhere (Keyes and Johnstone 2004, p 542). Often there is little opportunity for

    discussion about teaching and learning within schools. It is even more difficult for an outsider to

    get a true and complete picture of the classroom experience and teacher initiatives within an LLB

    programme. For these reasons, this part of the article is focused on institutional adoption of PBLapproaches as central to the law curriculum.

    As has been seen, influences on curriculum and teaching innovation can be grouped by

    stakeholders. A useful way of exploring advantages of and barriers to the adoption of PBL in

    New Zealand is to group them around the various stakeholders in New Zealand legal education.The dominant stakeholders in New Zealand university legal education are:

    The Law Schools

    Legal academics

    The Universities

    Law students

    The legal profession and other employers

    The NZ Council of Legal Education

    Government and its constituent parts.

    The Law Schools and adoption of Problem Based LearningMary Keyes and Richard Johnstone, in their article Changing Legal Education: Rhetoric,

    Reality, and Prospects for the Future (2004, pp 537-538.) identify five dominant characteristics

    of the traditional model of legal education:

    It is teacher-focused, tertiary education qualifications or training is not supported, and teachersreplicate their own learning experiences;

    It is almost entirely concerned with teaching legal rules in discrete subjects;

    Generic skills are given little express consideration;Law is an autonomous discipline, sui generis within the university;

    The needs of the legal profession are privileged;

    The law school experience is individualised.

    The traditional model has been subject to justified criticism in New Zealand as elsewhere, and

    such criticism was levelled in the Report which led to the birth of New Zealands newest law

    school, at the University of Waikato.

    In 1988, the University of Waikato published Te Mthauariki, the Report of the Law School

    Committee of the University of Waikato. The Report argued for the establishment of a new

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    School of Law at the University of Waikato. Central to the Report was a recognition of the need

    for a legal education that reflects the needs and concerns of people in a bicultural society; that isaccessible to both Pakeha and Maori (particularly those from the region served by the University

    of Waikato); and that has a law and society focus. The law and society perspective reflected

    LLB curricula in new law schools overseas (such as those at Warwick and Keele in the United

    Kingdom, and Monash and Macquarie in Australia) but was located in Te Mthauariki withinthe particular New Zealand context of the Treaty of Waitangi and the notion of a partnership of

    good faith that is central to the Treaty. The Report regarded as desirable the integration of law

    courses with courses from other disciplines. (Te Mthauariki 1988, pp 1, 14-17, 22-24.)

    Te Mthauariki followed upon a Report on the Reform of Professional Legal Training in New

    Zealand, prepared by Professor Neil Gold, currently of the University of Windsor, Canada. Te

    Mthauariki makes reference to the section of Professor Golds report that refers to the LLBcurriculum existing in New Zealand at the time. Professor Gold observed that a law in context

    curriculum was a requirement of modern legal education. (Gold 1987, 19) The focus of this

    Report is the need for reform to achieve a satisfactory level of training for legal practice.

    However, in the part of this Report that addresses the LLB curriculum, Professor Gold furtherstates that undergraduate level legal study requires the acquisition of cognitive skills and

    strategies which are more or less common to all higher level disciplines. He identifies problemsolving as an important skill set and states:

    In the best of all possible worlds it is a general legal education which prepares graduates to faceand adapt to change in all aspects of their lives, but especially throughout their legal careers. Law

    is anything but static: It is effective lawyers who can respond to the dynamic forces with which

    they are bound to be facedIn the end, we are reminded the law degree is a general preparation

    for a variety of professional and career options: it must be enabling in varied ways. (Gold 1987,pp 17 and 19)

    Both Te Mthauariki and the Report on the Reform of Professional Legal Training in New

    Zealand identify the nature of legal education in the 1980s to be the provision of a professional

    legal education, which is conceptually-centred, contextual and interdisciplinary, and which

    (identified in Te Mthauariki) required a bicultural approach. Legal education was to share thepurposes of higher education generally (reflecting the acceptance of Law as a proper university

    discipline, whilst ensuring that it remained an appropriate pathway to legal practice). The visionof legal education indicated by both Reports was adopted at Waikato and, over time, by the other

    New Zealand Law Schools. This can be seen in the statements that the Law Schools make about

    their legal education goals. But as with the Reports cited by Keyes and Johnstone (2004, p 543),

    Te Mthauariki and the Report on the Reform of Professional Legal Training in New Zealanddo not specifically address the particular teaching and learning methods that should follow the

    adoption of their recommendations.

    Nearly twenty years on from these Reports, it is possible to identify law schools teaching andlearning goals in documents in the public domain. In the modern environment of university

    strategic documents, New Zealand law schools have become more accustomed to producingstrategic or business plans that make commitments to excellence in teaching. The following are

    presented as examples:

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    The Victoria University of Wellington Strategic Plan, 2002-06 summarises its approach to

    teaching as:

    provid[ing] to students an excellent education across all areas of law. At its centre this

    should teach students how to apply the techniques of legal analysis rigorously and

    critically, to any issue they may come across, with a keen appreciation of its social,cultural, economic, and political context.

    The Waikato Law School has a teaching and learning plan which aligns with the SchoolsBusiness Plan, the University of Waikato Teaching and Learning Framework and the

    Universitys Profile 2005-2007 document. The plan identifies the need to promote, identify,

    support, and enhance excellence in teaching and learning at an international standard, consistent

    with the Schools vision, mission and values. Its general mission is to provide legal educationand research programmes of high quality pursuant to its founding goals of professionalism,

    biculturalism and the study of law in context.

    If New Zealand legal education is to be conceptually-centred, contextual and interdisciplinary,and bicultural, then one would expect there to have been a movement away from the dominant

    characteristics of the traditional model identified by Keyes and Johnstone. It is argued that the

    law schools ought to make PBL approaches central to the LLB curriculum. The PBLcharacteristics of contextualisation, interdisciplinarity, integration of prior personal and/or

    professional knowledge, collaboration, enquiry skills, reflection and transition, self directed

    learning and self assessment, and praxis are clearly consonant with the articulated goals andaspirations of New Zealand law schools.

    The New Zealand law schools are often in the position of having to react to external pressures

    that militate against innovation rather than having either the freedom or the support necessary tomake fundamental changes in support of a particular vision of legal education. Innovations such

    as signalling approval of a generalist higher education through approving the double degree, and

    crediting non-law papers towards the LLB in the first and second years of study are supportedbecause of the income that the other schools within the universities derive from enrolments.

    Innovation that requires greater resources for the law schools would run contrary to the position

    that law schools which follow the traditional model of legal education are inexpensive and areable to cross-subsidise schools perceived as requiring greater funding. At the same time the law

    schools must be protective of the differences of the discipline. The schools promote, internallyand externally, their research into legal rules and doctrine and the ways in which this discipline

    specific knowledge serves society, which position meets the expectations of the legal profession

    and the New Zealand Council of Legal Education. Through programme design and the electivesoffered, they appear to reproduce the positivist paradigm of law and lawyering, sometimes

    consciously to emphasise their role in preparing students for the traditional idea of the practice oflaw (in response to concerns expressed by the legal profession and perceptions of what studentswant), or because change is expensive, risky and constrained by the requirements for admission

    to the profession as set out by the New Zealand Council of Legal Education (Professional

    Examinations in Law Regulations 1987). Of these pressures, funding is the most important.

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    The New Zealand Universities and the adoption of Problem Based Learning

    Making PBL central to the law curriculum will require the support of the universities, mostimportantly in the area of funding. An examination of the documents regulating the operation of

    the universities shows that there is no regulatory barrier to adoption of PBL and significant

    evidence that PBL would support achievement of the universities goals. In New Zealand, only

    five of the eight universities provide the LLB degree. The universities operate under charters andin accordance with profiles. Both of these documents have prescribed formats under the

    Education Act 1989 (NZ).Section 160 gives the universities independence and freedom consistent with efficiency,accountability and the national interest. The Act is to preserve and enhance academic freedom

    and institutional autonomy. Academic freedom is defined in traditional terms: the universities

    mission is intellectual inquiry and dissemination of knowledge, they appoint their own staff,

    engage in research, regulate the subject matter of courses and teach and assess students in themanner they consider best promotes learning. The price to be paid is found in s 161(3) (b)which deals with accountability and the proper use of resources.

    The provisions of the Education Act 1989 support a bland university purpose and recogniseuniversity education as a public good. Government is identified as a stakeholder in university

    education. University charters state the universitys purpose, role and contribution. Drawingfrom these documents, one can add further New Zealand stakeholders in university education.

    These stakeholders include regional communities, Pacific Islanders (staff and students) Mori

    students and Mori iwi (as tangata whenua, the indigenous people of the region). The University

    of Canterbury Charter Goals specifically mention Asian students, staff and communities in theCanterbury region.

    New Zealand universities receive statutory direction about their role in educating students. Theinformation about purpose and stakeholders contained in the Act and the related charters and

    profiles provides an important context for law schools when undertaking curriculum review anddevelopment. Schools are required to operate within and contribute to the university mission in

    an explicit way. The needs of the various communities are an important consideration whenseeking university support for resource intensive innovation such as adoption of PBL.

    It is argued that the characteristics of PBL can assist quality teaching and learning for some ofthe communities recognised as stake holders. Commitment to Mori is an important part of the

    universities documentation, reflecting the tangata whenua (first peoples) status of Mori. A

    bicultural approach to legal education requires an understanding of Mori principles and values

    (kaupapa Mori), and beliefs about knowledge and the sharing of knowledge. In traditional

    Mori society (an oral tradition) much of the formal teaching and learning followed the

    transmission model. Tohunga (experts who were repositories of tribal knowledge) transferredknowledge by recitations that were learned by those chosen as the next generation of knowledgeholders. (Te Aho and Mackinnon 2004, p 260) However, participation, experience and

    questioning were also important ways of learning and students could attend meetings where

    tohunga debated and investigated the truth of knowledge held. (Hemara 2000, pp 15, 21) Joan

    Metge describes a learning strategy, which she calls education through exposure. (1983.) Thisinvolved exposing students to situations in which they were required to identify the context of

    their situation and solve problems that arose, supported by teachers. Hemara identifies elements

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    of constructivism within Mori pedagogies (2000, p 37) where learners are guided to zones of

    proximal development, as well as elements of peer assessment. (Hemara 2000, p 39.) Teachersand learners learned from each other. (Hemara 2000, p 45) It is suggested that teaching and

    learning approaches that are consonant with traditional practices would assist Mori achievement

    in the study of law. This assertion is supported by the existence of Wnanga such as Te Wnanga

    o Aotearoa. Wnanga are New Zealand Tertiary Education Institutions that provide tertiaryeducation in a Mori cultural environment (but none of them offer an LLB programme). Te

    Wnanga o Aotearoas Charter refers to a collaborative learning environment and a commitment

    to

    [e]nsure [that] kaiako [mentors or teachers] and kaitiaki [guardians] have the resources

    and training necessary to support learner success holistically. The concept of kaiako as

    both teacher and student is key to relationships with students. (www.twoa.ac.nz).

    The Problem Based Learning characteristics of collaboration, enquiry skills, reflection and

    transition, are clearly relevant to supporting Mori achievement, and adoption of PBL by law

    schools could be clearly linked to universities charters and profiles.

    The insurmountable barrier to university support for adoption of PBL by law schools may again

    be funding. New Zealand universities income is predominantly from Government funding per

    equivalent full time student, supplemented by tuition fees (the fee levels are presently capped).

    The universities are competing for students at a time of rising employment. In the year toSeptember 2005, the number of full-time equivalent employees (FTEs) increased 4.0 percent and

    filled jobs increased 3.5 per cent. (Statistics New Zealand Quarterly Employment Survey,

    September 2005 Quarter.) As previously stated, law schools are often regarded as a means of

    cross-subsidising less cost effective schools and in the absence of a concerted demand for PBLfrom dominant stakeholders universities are unlikely to agree to greater resources for law

    teaching and learning.

    Legal academics and adoption of Problem Based Learning

    Problem Based Learning approaches to legal education cannot be central to the law curriculumwithout the full support of all legal academics within a law school, even if there is an

    institutional push for PBL adoption. Unless the institutional stakeholders provide real support

    for professional development, address issues of increased workload, and explain to theprofession and to students that PBL approaches produce graduates with enhanced attributes and

    the necessary doctrinal knowledge and legal skills, then legal academics will be justified in

    choosing to make less onerous changes to their teaching practice. Adopting PBL approaches

    often requires a change in conceptions of teaching and learning, and ideas about legal knowledgeand legal pedagogy.

    Problem Based Learning and conceptions of teaching and learning.

    There is a strong relationship between conceptions of teaching and approaches to teaching.(Trigwell and Prosser 1996, p 282.)Problem Based Learning is likely to be seen to be without

    validity where the prevalent conception of tertiary teaching and learning is the transmission of

    http://www.twoa.ac.nz/http://www.twoa.ac.nz/http://www.twoa.ac.nz/http://www.twoa.ac.nz/
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    legal knowledge from expert to neophyte rather than as facilitating cognitive and affective

    growth. Change to Problem Based Learning practices would require commitment to conceptionsof teaching and learning that value teaching as making student learning possible. For Problem

    Based Learning practices to be successful, such conceptions ought not to be undermined by

    teachers of papers where PBL practices are deemed inappropriate, nor should there be a

    dislocation between such conceptions and the wider institutional view of teaching and learning.Problem Based Learning is likely to be effective in an institution which states its commitment to

    law-in-context teaching and where staff and students are committed to interdisciplinary

    perspectives.

    Legal Knowledge and Legal Pedagogy: resistance to PBL

    Adoption of a PBL curriculum challenges ideas about the law curriculum, legal knowledge and

    legal pedagogy held by legal academics and other dominant stakeholders. Rhodes-Little has

    identified that with the fusion of the pathway to the legal profession and the pathway to the LLBdegree (a reflection of political and economic stakeholder interests), doctrinal exegesis became

    the dominant approach to legal education. The compulsory/optional course dichotomy (wherecertain courses are compulsory for admission to the LLB and others are optional) reinforcespolitical and economic interests of the dominant societal groups e.g. property law/family law,

    contracts/employment law, as does the public/private dichotomy central to liberalism, for

    example the distinction between contracts and private arrangements. The affective dimensions oflife do not appear in the context of objective, neutral laws. The positivist, formalist dimensions

    of law are perpetuated by the structure of the law curriculum, legal academics and law students

    due to the homogeneity of interests and values; law students are inducted into the concepts,

    techniques and customs of the discipline as defined by the profession. Those students who findthe discipline consonant with their prior personal and professional knowledge are successful.

    Those who find dissonance have difficulty. (Rhodes-Little 1991, pp 55, 58.) The reflexive

    dimension of Problem Based Learning challenges hegemonic practices and meets with resistancefrom stakeholders. Past attempts to integrate law and social sciences in response to the American

    Realist Movement attacks on the objective, neutral nature of law failed to produce true

    interdisciplinarity.

    Interdisciplinarity has caused difficulties in creating or developing and implementing newcurricula. The legal academic who is expert in another discipline is presently a rarity;

    interdisciplinarity may amount to no more than a vacuous form of eclecticism. (Thornton

    1991, p 17.) The rise in many universities of the double degree (where law remains formallyand actually unconnected) does not equate to the rise of interdisciplinarity. Interdisciplinarity

    has, at the Maastricht Law School, been translated into a curriculum that transcends the usual

    legal categories, but is not connected to disciplines outwith law. That interdisciplinarity isbeneficial is accepted at Griffith University, Australia, which does have an integrated Law and

    Environmental Science degree, at least in the final year. (Godden and Dale 2000, p 239.)

    New legal pedagogy requires consideration of new ideas of legal knowledge that question

    objectivity and rationalism and are antipathetic to the positivist and formalist legal traditions that

    have the support of the universities, legal academics, law students and the legal profession asdominant stakeholders. Universities want students: it is a recurrent theme that the funding of law

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    schools is posited on a transmissive model that is cheap, holding down fees. Students want

    credentials that translate into jobs. The legal profession wants doctrinal knowledge and legalpractice skills. The government in New Zealand wants economic contributors and managers of

    the existing legal system.

    Conceptions of legal knowledge and legal pedagogy can be barriers to PBL adoption at acurriculum level. Interdisciplinarity and true collaboration can be seen as superfluous to

    stakeholder requirements. At the very least, time constrains both curriculum content and

    pedagogical approaches. And knowing that competes for time with knowing how to. Self-directed, reflective learning conflicts with credentialing. What we teach in law and how we teach

    law in New Zealand appears to reflect the current requirements of dominant stakeholders and not

    the characteristics of PBL.

    The Legal Profession and other employers

    Although a high percentage of law graduates no longer choose private practice as a career, the

    legal profession nevertheless dominates the shaping of the LLB curriculum. It does this in partthrough making well known its preferences for the sort of graduates it wants the universities toproduce. Unlike the UK profession, the New Zealand profession is only open to graduates with

    an LLB degree. The profession, as yet, has little experience of graduates who are well grounded

    in other disciplines, and this breeds a conservatism in the profession which seems intent onreplicating itself. The other avenue through which the profession influences the curriculum and

    teaching methods is via the Council of Legal Education discussed below. The profession but

    not governmental departments or other employers who might be better disposed towards

    interdisciplinary law and policy graduates or generalist problem solvers is well represented onthe Council. As has already been suggested, the legal knowledge worker in the 21 st Century must

    be prepared for and equipped to shape the brave new world of [legal] work. (Beck 2000.)

    Legal educators can serve the profession and other employers by preparing legal knowledgeworkers to participate and survive as intelligent citizens in a globalising polity; and to serve asethical professionals in the changing and uncertain world of globalised practice. (Havemann

    and Mackinnon 2002, pp 65, 69.) Legal education must foster both critical and technological

    literacies, and reflexivity in preparation for changes from formal work and full employment: thefuture is becoming more open. (Beck 2000, pp 21 and 22.) It is critical to the adoption of PBL

    that legal educators are prepared to educate employers about their future needs, rather than react

    to employer demands.

    The New Zealand Council of Legal Education

    The New Zealand Council of Legal Education is a creature of statute. At its inception, itsmembership reflected the recognised stakeholders in legal education in the 1930s, the legal

    profession and the University, with majority membership lying with the profession. Thedominant influence within the Council was important given the nature of the powers of the

    Council. The Council of Legal Education was given the power to make recommendations to the

    Academic Board of the University

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    with respect to any matter relating to legal education; and in particular may make

    recommendations with respect to the courses of study, the examination, and the

    educational and practical qualifications of candidates for admission. (New ZealandUniversity Amendment Act, s 3(2).)

    It was difficult for these recommendations to be ignored. Essentially, in 1930 the legal professionappeared to relinquish control of legal education to the University through the Law Practitioners

    Amendment Act 1930 and yet retained its place as a dominant influence on legal education

    through the New Zealand University Amendment Act 1930 and the establishment of the Councilof Legal Education.

    The Council remains an influential stakeholder in New Zealand legal education under theProfessional Examinations in Law Regulations 1987 (NZ). The regulations require that

    candidates for admission to the legal profession have satisfied the LLB requirements. Each of the

    university law schools has had the degree programme approved by the Council and the degree

    programmes must include specified core courses. These core courses are compulsory for

    admission to the LLB degree at each of the five universities that offer the degree. The syllabusfor each of these courses is set by the New Zealand Council of Legal Education and any

    proposed prescription change is subject to both university and Council approval. It is anobjective of the Council to oversee the coverage and quality of legal education in New Zealand,

    especially (but not solely) with reference to maintaining standards for candidates for admission

    as barristers and solicitors. More significantly for present purposes, the Council also appoints

    examination moderators for core courses from the legal profession and the judiciary and itrequires that the core courses all have traditional three hour examinations. The moderators must

    approve examination questions and marking.

    The Council currently comprises a New Zealand Law Students Association nominee, a Ministerof Justice nominee, the Deans of the five law schools ex officio, three members of the judiciary

    and five member of the legal profession. Without wishing to imply block voting, law school

    Deans are outnumbered by the judiciary and the legal profession, and the degree of oversight ofcurricula is surprising. Innovation can be contentious, particularly in light of the competitive

    environment in which universities operate. If changes to the core courses in one law school are

    put forward, these changes may be perceived as giving that school a competitive advantage.There is a temptation, at least, to impede innovation unless all of the law Deans are in agreement

    and all have the resources to implement change. Even if an important change such as making

    PBL central to the LLB in a truly interdisciplinary form were to be approved by the Council, for

    a single school to make such a change would be risky. The school would be out of step in theeyes of prospective students, who might prefer the known to the new. Since funding follows

    students, funding could be cut and the conditions for operating a PBL environment successfully

    (in terms of professional development, for example) would no longer exist.

    Historically, funding was an important issue that led to reliance upon the involvement of the

    legal profession in university based legal education. Funding remains an issue for innovation inlegal education. As indicated by Brand, (1999, p 109) and as previously discussed in relation to

    other stakeholders, issues of funding can underlie reluctance to innovate.

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    Government and Funding

    State funding of the public universities is based on the number of equivalent full-time students(EFTS) enrolled, creating competition for students. Apart from private funding, the remainder of

    a universitys teaching budget comes from fees payable by students. The Government has the

    ability to, and has in the past, capped student fees at a particular level thereby inhibiting

    funding growth for universities from that quarter. Students are able to obtain Government loansat less than commercial rates of interest. Funding per student in New Zealand is contracting

    and the mechanisms have created competition among universities and amongst the law schools.The universities look to the law schools for low cost education in a high demand discipline. Law

    schools are again looking to the legal profession for funding and the profession also has input

    into curriculum through the Council of Legal Education. Each of the law schools also has input

    into the curricula of all of the law schools through the Council. The dominant stakeholderanalysis suggests that PBL is unlikely to be supported at an institutional level in the current

    funding climate.

    StudentsInnovation in teaching and learning is undertaken for the benefit of students, yet in some waysstudents are the stakeholders who have had the least direct impact on decisions about teaching

    and learning law. Traditional law students were accepting of the traditional model of legal

    education as it met the expectations that students had of studying law. Even if uninspired by thetraditional model, students had few avenues of complaint. A lecture where knowledge is

    transmitted to the students provides no opportunity for student participation. Tutorials aimed at

    testing the knowledge received by students are not conducive to questioning laws meanings and

    values. Even in these more enlightened times, there is little space in the curriculum for reflectionand challenge by students due to moves towards semesterisation and intensive teaching, and

    student appraisals serve too many purposes other than providing feedback on student learning.

    New Zealand students, however, have been paying university fees for a decade or more. Theyhave adopted some of the characteristics of consumers, demanding recognised quality for lowcost and often minimal personal effort. They are sensitive to the expectations of the employment

    market and yet wary of the unconventional. At least in the case of school-leavers, theirknowledge of universities, their standing and their teaching methods is obtained second-hand. In

    Law in particular, their choice of university is greatly influenced by those who graduated a

    generation or more previously and who value tradition. Ironically this may give the more

    longstanding law schools greater scope for innovation with less likelihood of (potential) studentresistance, than a newer one which is already prejudged as a risk. Indeed, the small number of

    law schools supports homogeneity rather than diversity in legal education approaches. With

    increasing numbers of students from non-traditional backgrounds and students identifying as

    Mori, there are signs that challenges to the traditional model of legal education will grow. Asgraduates, these people are increasingly important influences within other legal education

    stakeholder groups.

    ConclusionProblem Based Learning approaches require analysis from perspectives that are, in whole or in

    part, new to the learners; ideas already formed may be modified or rejected; participants are

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    motivated by the relevance of the task; learning includes the ability to formulate the problem

    itself in the light of multiple perspectives (including that with which one self-identifies) anddisciplines. The personality, attitudes and values of each of the participants, as well as his or her

    professional aspirations, and discipline knowledge and skills, can be legitimated and

    acknowledged as having worth in contributing to problem formulation and solution. In this

    context, the law teacher is also a participator whose ideas, problem formulations and solutions,are open to challenge and change. Problem Based Learning approaches require reflexive

    participants; those who are sufficiently conceptually literate to read and critique key aspects of

    the social order and to understand their own and others status and role in it (including

    understanding any conflict between the personal self and the professional self). Reflexivitycontributes to humanist as well as to legal solutions to complex human problems and is essential

    to professional citizenship participation in the globalising market and society at a time oftransition from a work society to a risk society.

    The dominant stakeholder analysis suggests that a PBL-centred curriculum is unlikely to be

    strongly championed by any of the main stakeholder groups in New Zealand, despite evidence

    that its characteristics have benefits for all of them. PBL has at least three factors workingagainst its adoption in legal education: it is misunderstood; it is resource intensive; it is a break

    with tradition. Nevertheless, each of the major stakeholders has an interest in the production ofmore capable graduates by the law schools. Among them, the opinion setters are the members of

    the legal profession, although the purse strings are held by the universities. If both stakeholders

    can be shown that PBL is more effective in educating initiative-taking, capable law graduatesfrom diverse backgrounds, the other stakeholders will be more able to fall into line. That willonly happen when employable students come through a system in which they are exposed to at

    least some PBL approaches. And that depends on legal academics.

    If PBL approaches gain momentum in legal education, through adoption and evaluation and the

    publication of findings, and through reflection on and re-thinking of the essential characteristics

    of PBL, then institutional stakeholders may re-prioritise budgets and legal education clients

    may demand curriculum change.

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