Category Archives: legal education

Student evaluations

I think I’ve mentioned the phenomenon of student evaluations before on this blog. Sometimes, as I’ve explained in the earlier post, I’ve received some very amusing ones. Most have been pretty positive although I have received some critical evaluations. Never anything really soul destroying…yet. Other times, the positive ones balance the negative ones exactly (eg, I get 5 saying “Where were the Powerpoint slides?” and 5 saying “Thank God there were no Powerpoint slides!”) I tend to mentally file those responses under “well, you can’t please ’em all”.

Lately I’ve come across a couple of interesting legal issues regarding student evaluations. Of course, both cases come from the US, the fount of much interesting litigation.

First, there’s the case of a student who, when asked to complete a student evaluation form, wrote offensive comments about a professor’s sexuality and expressed the desire that the professor die of AIDs. Read more about it here at Concurring Opinons and here at Volokh Conspiracy.

The evaluation was said to be confidential. However, the professor in question was very upset by the comments, and went through exam papers to identify the handwriting of the person who had made the comments. The particular student was identified, and officially reprimanded. The student has been asked to write a 1,200-word essay on how his remarks affect the lesbian, gay, bisexual and transgender community, to write a letter of apology to the professor (including constructive criticisms of his teaching style), and to discuss with the university training or other programs deemed appropriate.

Hmm. I have to say that I found the student’s comments offensive, and for this reason I decided not to reproduce them on my page. I’m sure that if someone directed racist, sexist or other abuse at me, I would be very, very upset. Particularly if it was something about which I was already sensitive or about which I had already had to face abuse from others previously. I also think the punishment was appropriate, although I do wonder whether it will really change the student’s underlying prejudices.

On the other hand, if it were me, I don’t know that I’d go through all the exam papers and work out who said it. To my mind, the surveys are confidential, and even when people say stupid and offensive things, that is a promise that needs to be kept, except in extreme cases where, for example, a death threat is made. The confidentiality allows students freedom of speech to say whatever they want, even if it is ridiculous or highly critical.

The student did say that he hoped the professor in question would die, but to my mind, it was not a death threat – it was more of a unpleasant and juvenile sneer of the kind that 13 year olds make. The statement made by the student indicates (a) that he is extremely immature and (b) that his opinion is not worth much anyway. I’d probably decide to brush it off as an opinion not even worth worrying about, and hope that as he progressed through university he came to a more open-minded point of view. I might also suspect that he had sexuality issues of his own (as is often the case with young homophobic males)…

However, I’d welcome comments from anyone who feels differently. I suspect some readers who are members of the gay and lesbian community might feel very strongly about this one.

The second case concerns a professor who altered student evaluations to make them more favourable towards him. The professor happened to teach law, and the Supreme Court of Iowa has suspended him from legal practice, with the possibility of reinstatement on conditions. (Hat tip to Stephen Warne for alerting me to this one).

The misconduct occurred as follows. The professor remained in the room when the student surveys were taken, and he and his research assistant also completed surveys which were handed in (favourable, I’m sure). It seems that they amended some of the results.

The professor also gave a speech to the students stressing the importance of good reviews, and said that his problems with the law school had arisen because others were jealous of him. I must say that I have never had the hide to give a speech to students about how important student evaluations are to academic careers. I’d rather people judge me honestly, without having to beg them to be kind.

The professor was suffering from bipolar disorder, and at the time of the offences, he had not taken his medication, which makes his conduct rather more explicable. Ironically, his speciality was mental health law. Still, despite the bipolar disorder, he must have known that what he was doing was wrong.

The consequences have been quite devastating for his career, I am sure – what a silly fellow! – he would have been better to leave the questionnaires untouched and leave his career in one piece.

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Filed under academia, cheating, education, freedom of speech, law, legal education, powerpoint, sexuality, society, tolerance, universities, USA

Ideology, law and teaching

As I am a university lecturer, I was interested to read about the Young Liberals’ campaign to “out” left-wing lecturers. That seems to miss the point to me: it’s a bit unpleasantly reminiscent of a McCarthyist witch hunt.

I have to say that in law school I had a variety of lecturers, from open Marxists to known advisers to the Liberal Party. I had no problem with that. One of my best friends at high school was a neo-Marxist, my other best friend was a Tory. They didn’t like one another much, but I liked them both a lot. I’m still friends with both.

The problem is not that a lecturer has a political leaning. The real problem arises in two situations:

  1. When a lecturer is sarcastic and vicious to those who disagree with his or her point of view.
  2. When a lecturer allows his or her particular view to skew what is taught away from the curriculum.

I once had a lecturer who savaged those who didn’t agree with the particular brand of ideology he followed. As it happened, he was very, very left wing, but that’s not the issue: I don’t care whether he was left wing or right wing. The issue is that he silenced and mocked those who disagreed with him. Certainly it had an effect on my own experience in that class. I said barely a thing during class, and I definitely did not enjoy the subject. A lecturer cannot help portraying things from his or her own viewpoint to an extent, but I think he or she should be open-minded to different ideas and viewpoints.

The other issue occurs when a lecturer allows his or her viewpoint to skew classes away from what is set down in the curriculum. This need not be a political point of view – it could also be a particular research bug-bear which interests the lecturer. Particularly with core law subjects, the object should be to give students the ability to deal with problems in practice. My own attitude is that I must focus on getting the law across and not indulge myself in personal enthusiasms too much. Of course my enthusiasm is part of what makes my teaching engaging to students, but not if I just concentrate on those topics which I like to the detriment of other topics. I actually suspect that my students find my own personal biases amusing and somewhat bizarre. (On the one hand I have a deep hatred of the notion of “fusion fallacy”, for example, and a dislike of the narrow-minded Sydney Equity Bar. On the other hand, I love restitution and resulting trusts. Yum, yum!)  When these things come into issue I always try to fairly present the opposing point of view, and I flag my own personal prejudices, with a rider that it is by no means necessary to agree with me to do well in the course, and indeed I welcome and enjoy good argument to the contrary. Of course, I do highlight ways in which I think current laws are unfair or could be reformed, but again, I say that students are welcome to disagree, and that they won’t be marked down for doing so. I also say that I don’t care what line they take, as long as it is well argued and justified. I suspect that scary lecturer who savaged people who disagreed with him has made me very, very conscious about never doing that to my students.

My friend’s brother told me that one of his university lecturers doesn’t teach to the curriculum at all, but rather speaks about things which interest her. As far as I’m concerned, that is appalling. Teaching is not a personal soapbox – she should make her own soapbox blog if that’s what she wants to do. That’s a private affair. Indeed, one of the reasons why I am anonymous on this blog is because I don’t want my students to know my political views and to feel constrained by them in some way.

So perhaps what is needed is not a McCarthyist witchhunt, but a clear policy that students come from diverse backgrounds and have diverse points of view which should be encouraged by teachers, whatever their own personal leanings. After all, part of the way in which we learn is by taking into account opposing views and criticisms, difficult and painful as that may be sometimes.

(I have to repeat that last sentence to myself lately: I suffered a particularly vicious review of my recent attempt to submit an article to a prestigious journal…waaaah! Well, I guess if you want to play with the big boys, you’ve got to learn to play rough – they are mostly boys too, by the way.)

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Filed under academia, freedom of speech, law, law reform, legal education, politics, society, tolerance, universities

Plagiarist law students, beware…

A friend sent me this interesting case, Re Legal Profession Act 2004; re OG, a lawyer [2007] VSC 250. It concerns both fitness to practice law and plagiarism at university.

In my first year of teaching, I was shocked to come across what appeared to be plagiarism (material which seemed to have been copied verbatim from the Internet). Fortunately, I didn’t have to decide whether it was plagiarism or not, and I could handball it to the people who deal with that kind of thing. I don’t know what happened in the end. But if plagiarism was established, I had never thought about the implications for the student’s admission to practice. This case provides a salutory warning for any law students who have been found to have colluded or plagiarised in the course of university assessment.

For the non-lawyers out there, when lawyers are admitted to practice, they have to tell the Admissions Board about every matter which may suggest they are not fit to practice (ss 1.2.6 and 2.3.3, Legal Profession Act 2004 (Vic)). This includes fines for parking and speeding, and public transport fines. And it seems that it also includes being frank about allegations of plagiarism or collusion during a lawyer’s university career.

The case involved two students, OG and GL, who were studying Business and Law at Victoria University. In the first semester of 2005, both students were studying Strategic Marketing and Planning. The first assignment for that subject was a group assignment, but the second assignment was to be completed individually, building on the material in the first assignment. The lecturers of the subject formed the opinion that OG and GL had colluded in preparing the assignment. Each were awarded zero marks for the assignment. Once they had graduated, the two students went on to complete a Leo Cussens course in order to qualify for practice. Each made disclosures about the incident with the Marketing Assignment, but they differed substantially. In his letter to the Board of Examiners, GL said:

I wish to disclose the following to the Board.

In late July 2005, I was accused of colluding with another student on an assignment for the subject of Marketing Planning and Strategy. I spoke to the Topic Co-ordinator and Head Lecturer and stated that I did not collude with the other student. They did not accept my reasoning for why the assignments were similar.

My reasoning for why the assignments were similar was that it was a mere coincidence. The assignment was based on the findings of a group project completed a few weeks earlier, I was in the same group as the other student. The assignment called for developing a marketing strategy based on the product research in our group subject. There were only two possible strategies that could be used.

They advised that I could go the University Board to defend the matter but based on my reasoning, they were of the opinion that our appeal would be rejected. They also said that if I went to the University Board there would be a mark of [sic] my record. If the matter was dealt with by the Topic Co-ordinator and Head Lecturer, they would not put a mark on my record.

I decided to take the penalty of receiving a zero for the assignment and they said that the matter would not be taken further. …

By contrast, OG’s disclosure letter stated as follows:

On or about 26 July 2005 I received a zero grade for an assessment component in a Marketing subject at University for a misunderstanding that occurred. I had a clash in my Law and Marketing subjects and as a result the Strategic Marketing & Management subject coordinator exempted me from attending tutorials.

I undertook an assessment component that was worth 15% of the total assessment for that subject, which was to be conducted as a group task for both the research component and the writing up of the assignment. However, I misunderstood this as a result of my non attendance at the tutorials, and whilst I conducted the research process in a group I mistakenly wrote up the assignment individually.

As a result of my misunderstanding the topic coordinator awarded me a zero mark for that assessment component. I subsequently still, successfully passed the subject.

No record of the event was recorded and at no time was it suggested to be plagiarism or the like. I did not go before the University Board, nor did I fail the subject for my misunderstanding. It was an internal matter with the subject coordinator.

OG was admitted, as the Board of Examiners accepted this admission.

GL was required to attend hearings before the Board of Examiners before he could be admitted, and in the course of this, the allegations against OG came to light. By this time, OG had already been admitted to practice. In the event, GL was not admitted to practice on the basis of a lack of frankness in his admissions to the Board of Examiners.

The question for the Supreme Court of Victoria was then whether OG should be struck off the roll. In the event, the Court concluded that the most likely possibility was that the students had colluded in the preparation of the assignment, and that they had discussed the matter fully. OG had denied that the university had communicated the allegation of collusion to him, but the Court found the university had done so. They further found that OG knew that GL was disclosing the matter to the Board of Examiners. OG’s admission to practice was revoked.

There are a few lessons to be learned for young players from this case. If you’ve had allegations of plagiarism or collusion against you during your university studies, make sure you disclose it. And make sure your disclosure really is full and frank. Don’t compound one misdeed (plagiarism/collusion) with another (failure to be honest about the circumstances).  GL would probably have been better off being totally frank about the collusion; it seems that he did not want to “rat on” a mate, and tried to protect OG, and that this in part contributed to his own failure to be admitted.

I read an interesting piece by Gino Dal Pont in the Law Institute Journal a few months back about the requirement that a lawyer be of  “good fame and character” ((2007) 81(10) LIJ 76). It outlined the malleable nature of this concept, and showed that the boundaries are always changing. Previously, tax evasion was not a bar to practice, but now it is according to ss 2.4.26 and 2.4.27 of the Legal Profession Act 2004 (Vic). And as the case above indicates, plagiarism and collusion may provide bars to practice, depending on the circumstances: see also Re AJG [2004] QCA 88.

I think the Court made the right decision in regard to OG. In some ways, he was very unlucky that GL was also a law student, and was honest enough to disclose the matter. If GL had written a letter which was similar to OG’s, perhaps they would have gotten away with it. And if GL had not been a law student at all, the matter would never have come to light. It’s a little scary. I don’t like the idea of people like OG practising. Does the disclosure process work? Insofar as it requires good faith on the part of the applicant, there is a problem, highlighted by OG’s case. If a person is dishonest, they will make a dishonest disclosure in an attempt to gain admission. At least by striking this guy off the roll, the Court has given a message that this kind of conduct will not be tolerated.

Another question: does this requirement of good fame and character make people trust lawyers more? Or think that we are ethical? Excuse me while I go into hysterics here. Despite all these requirements, lawyers are distrusted and widely regarded as unethical. (I keep thinking of the line from the Tom Waits song: “Killers, thieves and lawyers, God’s away, God’s away, God’s away on business, business.”) I wonder if it’s a bit like highly religious people. The highly religious proclaim high moral standards for themselves (and sometimes try to impose them on others). It’s quite easy, therefore, to find examples of hypocrisy amongst religious zealots because the standards are so high, and so it is with lawyers too. Perhaps we lawyers would be better off admitting that we are human, and that some of us are not good or ethical people. But then, on the other hand, I think it’s important to keep in mind that as lawyers, we hold a good deal of power and responsibility, and that we purport to uphold and advance the law. And I also think that it’s important to aspire to honesty and to get rid of lawyers who have shown a tendency to be dishonest. What do others think?

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Filed under academia, courts, Guilt, law, legal education, morality, universities

A nerdy confession

The curriculum for this semester has changed a little, so I’m downloading cases to complement my revised lecture notes. Anyway, I have just been downloading cases from the Commonwealth Law Reports. It seems fascinating to me that Calverley v Green (resulting trust case) was in the same volume as Jaensch v Coffey (nervous shock & negligence case) and Nelson v Nelson (resulting trust case) was in the same volume as Vadasz v Pioneer Concrete (rescission on terms). Somehow I had never thought of those cases as occurring at the same time.

Yeah, I know I am quite crazy. After all, I think that different kinds of trusts have different flavours. Resulting trusts, of course, are peppermint flavoured. Common-intention constructive trusts are strawberry flavoured. Maybe I’d better stop there.

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Filed under crazy stuff, law, legal education

AUSTLII needs funds

Any Australian lawyer worth her salt is aware of AUSTLII. (Unless you have been living under a rock for the last 20 years?)

As part of my PhD, I am investigating law from all over the world: including Australia, England, Canada, the USA, Ireland, Israel, France, Germany… Australia is streets ahead of any of those other countries in providing free access to legal materials. It is great because it means I can research from home.

Austlii also allows me to research my legal posts on this blog thoroughly, and to familiarise myself with the relevant law before I write.

I think it’s an important democratic right to give people free and easy access to statutes which are purported enacted for their benefit.

But unfortunately, Austlii is running out of funding. The donors who are glaringly absent are many of the firms who use this resource, as well as many of the Courts whose decisions are published by the site (although there are some who give generously). Have a look at this post from the Ethics Forum – Are most lawyers bagel thieves?

I haven’t got much money (casual lecturers are paid terribly) but I use Austlii all the time. I am going to make a donation (as much as I can afford) to this worthy cause. I ask other lawyers and non-lawyers who use this resource to consider doing the same.

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Becoming a Lawyer – Part II

I have posted on the topic of legal education a long time ago. I note that the topic has come up again in the US, with Indiana Law School now introducing a professional element in first year.

The American Bar Association’s MacCrate report sums up the problem in words that can equally well be applied to Australian legal training:

It has long been apparent that American law schools cannot reasonably be expected to shoulder the task of converting even very able students into full-fledged lawyers licensed to handle legal matters. 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 can’t draft a contract, they can’t 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.”

Too often these responses are thoughtless reactions to unfair criticism, and reflect an unwillingness of the academy and the practicing bar fully to understand the cultures, needs, aspirations, value systems, and accomplishments of each community. The community of over 6,000 full-time law professors does not consist of ivory-tower scholars removed from the problems of the profession and concerned only with their academic pursuits. Conversely, lawyers are not oblivious to the contributions of law schools to the quality of the profession or to a broad-based legal education system that extends beyond technical skills and the knowledge of certain substantive areas of law.

As someone who has practiced as a solicitor and as an academic, I am alive to the constant tension in legal education. I found that I was woefully underprepared when it came to practicing as a lawyer. I was expected to know how to draft a contract, how to run litigation and the like, but I had never been taught these things at university.

Is this the law school’s fault? One of the best ways of learning practical skills is by doing. I don’t think it is a university’s place to turn out a perfectly formed lawyer. Either you learn on the job, and firms have to put up with people being unable to be perfect lawyers straight away, or you set up a proper training course. I understand that the Legal Education Review undertaken last year in Victoria suggests certain mandatory training requirements (as outlined in my post here). When I see firms saying they want universities to turn out more practically oriented law students, I see laziness as the motivator. Firms want someone who can just slot into the job with no problems and no further training. And if universities have already softened students up to the realities of the law firm, then there will be no need to actually have to manage young lawyers either.

On the other hand, I have some sympathy with the view that law students come out of law school unprepared for practice. As I have outlined above, I had no idea what I was doing. I felt somewhat resentful that I had studied hard for five years and still didn’t have a clue about how to practice as a lawyer. I think it would have been good to get a little more of an idea about the practicalities.

When teaching, I always try to link in what I am teaching to real-life scenarios I have faced (eg, lodging a caveat, claiming a constructive trust over a property for a client, representing a creditor in a winding up, acting for an equitable mortgagee). I am lucky that I had a fair amount of time in practice before I became an academic. I think that legal concepts make a lot more sense if you link them to real life situations where they could be used. I am really glad that I had some years in practice before I became an academic.

I hope that if a new Traineeship programme is introduced in Victoria, as suggested by the Legal Education Review, it will help to provide standardised training for young lawyers. Universities should help provide some idea of what practice is like, but they should also be places where students can explore different ideas and subjects and look at questions like legal philosophy. It would be a great pity if law school became just another vocational course.

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Filed under academia, law, law firms, legal education, solicitors

Technology for the sake of it

I’m going to have a little bitch here. Because today, in the middle of my class, when I was explaining some very interesting concepts, some students were very obviously looking at something amusing and not at all law related on their laptop screens. I thought about jumping up and down, screaming and throwing the laptops on the floor, and then stamping on them. I didn’t do it, but the fantasy was pleasing.

I put my anger down to sleep deprivation. The baby has a cold and she isn’t sleeping well. I also put my anger down to sadness that other people just don’t love trusts as much as I do. What am I to do about it? How can I convey to them what a beautiful thing the trust is? Perhaps I can create an Ode to the Resulting Trust (including my belief that it is peppermint flavoured).

Anyway, getting back to the topic, I was interested to read an article in The New York Times recently about the inefficacy of laptops in education. The article begins as follows:

The students at Liverpool High have used their school-issued laptops to exchange answers on tests, download pornography and hack into local businesses. When the school tightened its network security, a 10th grader not only found a way around it but also posted step-by-step instructions on the Web for others to follow (which they did).

Scores of the leased laptops break down each month, and every other morning, when the entire school has study hall, the network inevitably freezes because of the sheer number of students roaming the Internet instead of getting help from teachers.

So the Liverpool Central School District, just outside Syracuse, has decided to phase out laptops starting this fall, joining a handful of other schools around the country that adopted one-to-one computing programs and are now abandoning them as educationally empty — and worse.

Many of these districts had sought to prepare their students for a technology-driven world and close the so-called digital divide between students who had computers at home and those who did not.

“After seven years, there was literally no evidence it had any impact on student achievement — none,” said Mark Lawson, the school board president here in Liverpool, one of the first districts in New York State to experiment with putting technology directly into students’ hands. “The teachers were telling us when there’s a one-to-one relationship between the student and the laptop, the box gets in the way. It’s a distraction to the educational process.”

I think I’ve written before about my first day of teaching at university. I found a class full of laptops. I couldn’t see my students’ faces. All I could see was a sea of laptop screens, and the room was filled with the ticka ticka tap sound of keystrokes. It was a real culture shock. I like to look at peoples’ faces and to gauge whether they are understanding me. I also like to draw lots of diagrams on the board when I’m explaining complicated commercial law transactions (“X paid money to Y here, but then it went to Q over there and ultimately ended up with D here“) but it’s hard to draw a diagram on a laptop.

My experience has been that all too often, laptops hinder teaching in the classroom rather than help it. I crept up on some boys last year who were having inter-laptop warfare in the middle of class, “shooting” each other with arrows (virtually, not literally). I said loudly, “What’s this game, and how do you win?” They were so engrossed that they hadn’t seen my approach. They jumped about 10 feet in the air. I felt rather mean, but they were playing in my class.

Computers are great for research for essays in subjects like Law, History, English and other humanities. I don’t think I could do my PhD so easily if I had to keep going into university to photocopy articles. I can download at least half of them…but I always print them onto paper. Call me old-fashioned, but I can’t read things so well off a screen. I can’t see how laptops would add much in subjects such as Chemistry and Biology, where there is a large practical component, or Maths, when you can’t easily type equations. I did use computers when I studied Japanese, but I had to have a fair degree of fluency before I could do that.

But the recent trend in Australia is to say that laptops need to be taken into every class. Teachers are told to make up programs which involve laptops if they don’t already have a use for them. A friend of mine who teaches 5 and 6 year olds tells me that her class has been decked out with computers for the use of the students. Many students at the school have literacy problems. “It’s a total waste of money,” she sighed. “At the moment, many of them have difficulties with reading and writing, and some don’t know their alphabet at all, so what are they going to do with a computer? The best thing for them is one-on-one personal contact.” Still, she tries to include some computer activities, just so that if the Powers that Be ask her, she can say that she’s exposed her students to the computer.

I’m going to be controversial here and say that a laptop in the classroom equals an expensive and glorified pen. Typed notes are always legible and neat, and spelling mistakes are picked up. But to really understand a subject, I find that the best way to do that is to (a) write handwritten summaries to make sure I really know my notes and articles I’ve read and (b) try to do old exam papers. You don’t need a laptop for that.

Ah, bitch over. I feel better now.

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Filed under academia, education, laptops, legal education, techonology, universities