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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.
jjm2@waikato.ac.nz
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
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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
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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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