Downsizing Teaching: The Case for Seminars as the Backbone of Law Degrees

Abstract

This article is aimed at contributing to the ongoing debate on the purpose of law school and the work of law teachers, calling for a scholarship-based approach to teaching, centred on culture, research and method and advocating for seminars to replace lectures as the core method of teaching delivery in law schools. The article addresses, under this perspective, the salient elements of legal education: the philosophy of a teacher, the function of lectures and seminars, the problem of the time necessary to gain the required preparation, the importance of reading and the role played by assessment in the economy of a law degree. It is argued that teaching delivery methods should be the subject of constant reflection, and that the drafting of law school curricula should aim at cultivating the intellectual abilities and curiosity of law students, focussing on their education rather than their mere instruction.

Introduction

In his introduction to the first edition of Come si fa una tesi di laurea, ² Umberto Eco described the state of Italian universities prior to the reforms that, from 1969 onwards, progressively abolished the various limitations in place to access to higher education:

Only the children of university graduates attended, and with rare exceptions, students had all the time they needed at their disposal. The university allowed students to proceed slowly, with time allotted for study, for ‘healthy’ fraternal pastimes, or for the activities of student government. Classes took the form of prestigious lectures, after which the most interested students would convene with professors and their teaching assistants in unhurried seminars, consisting of 10 or 15 people at the most. ³

Not many of the academics currently teaching law have personally witnessed this elitist (although perhaps effective, for reasons that will be explained in the remainder of this article) version of higher education. In many countries, the first lecture a law student ever attends takes place in a lecture theatre that can likely host close to 500 people, and the number of students in class on a given morning may easily be close to 300. ⁴ Even with half that number, decent interaction with the teacher during lectures is pretty much impossible; if one wants a chat with the teacher, they would have had to wait for office hours and hope that not too many classmates have similar ideas. In other words, even though the number of students wandering the corridors of law schools worldwide has increased dramatically since the 1970s, the methods employed by law teachers largely remain the same, and this in the face of a literature on education that has underscored how different students have different learning styles and needs, and the one-size-fits-all approach that privileges long lectures before large cohorts is likely in need of rethinking.

This article considers that legal education in universities should be based on the long-term objective of cultivating the intellectual abilities and curiosity of law students rather than simply transferring knowledge about the law and testing such knowledge and understanding. I would therefore argue that teaching delivery methods and how to best use the contact time between students and teachers should be the subject of constant reflection. As it will be seen, ultimately, what I advocate is an approach to teaching centred on the individual student, based on culture, research, exchange and method that requires switching the core teaching delivery from lectures to small-group seminars and demands that students are allowed time to read, write and have a taste of scholarship. In this article, I will use the term ‘seminar’ to cover the various forms of small-group teaching complementary to lectures employed by universities worldwide. ⁵ While seminars are a staple of any law degree, a major issue in most curricula is, in my opinion, the low number of seminars available compared to the rather large number of frontal lectures. And whilst this article is written by an academic based in the UK whose experience is limited to British and continental European universities, its (perhaps over-ambitious) goal is to address the subject matter from a global perspective.

In order to support such an approach to teaching, I will address what I consider the salient elements of legal education, namely, the need for a solid teaching philosophy (second section), the function of lectures and seminars with regard to the delivery of contemporary curricula (third and fourth sections) and the role played by assessment in the economy of a law degree (fifth section), before drawing up a few concluding considerations in the sixth section.

Theoretical Underpinnings of Teaching

Generally speaking, the study of law at university is not vocational. In most countries, graduates who wish to practice law must take further vocational courses upon graduation, spend time in training and pass the necessary exams; those who wish to embark on an academic career must either enrol in a PhD programme or find teaching positions that allow them to interact with other academics on a regular basis; and even lawyers who would like to find employment in other fields need time and training opportunities in order to develop the necessary sector-specific skills. A law degree, therefore, is not a professional qualification, but rather a ‘mere’ advanced introduction to the discipline of law, which may be put to use in various ways by each graduate. Because of this, law teachers must cater to students with very distinct career objectives and only one specific ambition in common: becoming lawyers. Aside from the professional connotation of the term, however, what is a lawyer?

What distinguishes a lawyer from a layperson is the ability to make and defend a legal argument. By ‘legal argument’, I mean the statement, or set of statements, that is used by a lawyer to prove that the occurrence of certain conditions is necessarily followed by certain legal consequences. Construing such proof requires not only the knowledge of statutes, cases and scholarly opinions, but also the ability to present the relationship between circumstance and consequence in a logical, sound and convincing manner—and, if I may add, with a certain rhetorical style. ⁶ Moreover, the construction of a legal argument always requires a methodological choice, depending on whether one wants to describe and explain what the law is and how it works, whether one wants to suggest what the law should be in relation to a certain state of facts, or expose the relationship between law, society and power. ⁷ It is thus necessary not merely to know the law, but also to be able to conceptualize it, interpret it and present it. And teaching these skills is, or ought to be, the core purpose of teaching law. ⁸ Being a lawyer, regardless of the profession in which the said skills are employed, is ultimately a techné—that is, the ability to create and shape a certain object or reality that cannot be separated from a subjective approach to the matter. ⁹ This leads to the question of which activities should be paramount in a law degree. From my standpoint, the techné of law requires proficiency in research, analytical skills and argumentation techniques; employment-related skills are indeed the basis of clinical legal education and can be supplemented excellently by extracurricular activities, such as mooting or debating, as well as post-degree vocational courses.

Are contemporary law schools, populated by hundreds of new students every year and increasing pressure on academics to produce world-class research on top of quality teaching, truly equipped to effectively pass the aforementioned skills to the next generation of lawyers? One may argue that such a global increase in the number of students, often not paired with an increase in the number of teachers that would relieve the pressure on academic staff, has led to a progressive standardization of most aspects of law students’ experience, ¹⁰ a standardization that makes it impossible to tailor one’s teaching according to their students’ different learning styles, ¹¹ and forces many to focus on giving students the basic skills to pass their exams rather than the more complex range of skills necessary to read and interpret the law. ¹² Conversely, I would advocate for an approach to teaching that takes into account different learning styles, the necessity to provide constant, tailor-made feedback to students ¹³ and the need to spend time reading and reflecting on cases and scholarly articles—in one word, to familiarize oneself with the concept and dynamics of legal scholarship. In recent years, a number of institutions have explored and introduced new teaching methods to the field of legal education. Notwithstanding these efforts, however, lectures remain the preferred teaching delivery method in most law school courses.

The Case for Downsizing Teaching

Many teachers have come to question the actual value of lectures among the various teaching delivery tools, advocating giving up the traditional lecture to make room for more modern and effective teaching delivery methods that may well be more suitable to adapt to the variety of learning styles of students. ¹⁴ Not even a global pandemic, however, has led universities to actually give up lectures altogether, adapting their format instead to the requirements of online and blended teaching. ¹⁵ In spite of this resistance, I would like to raise questions—and, in fact, reservations—with regard to the effectiveness of the traditional lecture in teaching law, and submit that its relevance within curricula should in fact be reviewed.

It is customary for a lecture to last for one hour, if not a bit (or considerably) longer. As is evident to anyone who has ever attended a conference, most academics can comfortably speak for as much time as is allocated to them. The real challenge lies in keeping the attention of the audience for the said time; and the challenge may prove particularly arduous when the audience is made up of students. ¹⁶ Law, as argued beforehand, is a techné: it is sophisticated, logical and highly procedural, and its study requires the exposure to its inconsistencies, voids and particulars. One hour is most certainly a rather appropriate time for a discussion on a particular point, as long as it has been previously explained and read about. Unfortunately, the time for discussion is often limited in lectures; moreover, the number of seminars—the perfect setting for such discussions—is usually much lower than that of lectures, and the student–staff ratio of most law schools makes it impossible to use office hours for long and thorough academic dialogues between a student and their teacher. Yet, most institutions still privilege lectures as contact time, complemented by small-group teaching and individual tutoring. ¹⁷

COVID-19 has pushed many law schools to implement forms of blended or entirely online learning, which in previous times were mostly left to experimental courses or distance-learning ones. Chunking, in particular, has been popularized after having been pioneered in the years before, and its massive usage has unveiled the arbitrary nature of allocating 60-, 90- or 120-minute slots for lectures. ¹⁸ Moreover, if lectures are recorded and not timetabled, teachers can focus on their content and dispense with the need to plan the lecture with the added pressure of having to keep the students engaged for an entire hour. Ultimately, teachers can break down sessions based on their content, and their lectures can last for however long is necessary. ¹⁹ In the traditional one-hour lecture, students are delivered an immense number of notions, most of which they will also find in any textbook, but they only have relatively little time to discuss things with their teachers. Arguably, it would be more appropriate to minimize passive learning by collating lectures in such a way that the basic concepts are delivered in the traditional lecture setting, but significantly more time is spent with one’s tutor, exchanging ideas, concepts, information and training students’ analytical skills—like they would be trained in music, sports or any other performative activity.

A second problem with lectures worth underscoring arises from their content. By definition, every student attending a lecture is taught the same materials in the same manner, with little attention—due to the often high number of students in attendance—to the individual learning styles of students. Notwithstanding the fact that small-group teaching would allow for the possibility to adapt one’s teaching, to a certain extent, to the learning styles and needs of individual students, the syllabi in most schools still present a strong imbalance in favour of lectures. Ultimately, the case for saving or replacing the lecture as the foundational law teaching method rests on how one answers the question of what law schools, academics and teachers intend to pass on to students in an undergraduate law degree. Lectures are certainly suitable for communicating large amounts of data, arguments and ideas, although in a rather unidirectional fashion. Law schools, however, aim to graduate individuals who can build and deliver a legal argument rather than those who have merely absorbed concepts. Other forms of teaching, therefore, may be more suitable than lectures, and the lecture-to-small group teaching ratio should thus be adjusted accordingly. ²⁰ The literature underscores the need for teachers to take into account different learning styles and to focus on how different learning styles are often featured within a group of students of any size. ²¹ Syllabi that privilege lectures thus disregard such literature by devoting the majority of time to teaching extremely large groups of students with one style that is supposed to fit all (but, as the literature shows, does not). Small group teaching, instead, allows teachers to actually get to know their students, understand what their strengths and weaknesses are, highlight the issues that need to be addressed more thoroughly and provide the fundamental constant feedback on their progress; or at least, this would be the case if teachers could indeed spend enough time in small groups.

In law schools, indeed, time is a rather scarce commodity, and it is highly managed by the schools themselves (or, as it often happens, by central timetabling offices). The question is not whether contact time should be increased, eroding the already limited research time for academics, or reduced, giving students more time for independent study but perhaps less guidance and attention. The focus should be on making the use of contact time efficient and more effective. On one hand, chunking and recorded lectures allow students to partly manage their schedules on their own, listen to lectures when it suits them best and spend more time reading case-law and articles. On the other hand, reducing the number of lectures would give teachers more time to nurture students individually, guide them through the materials, work towards an increase in engagement and welcome them to legal scholarship. Synchronous activities are crucial when there is an exchange of ideas and experiences; they are hardly necessary when the activity allows for the passive participation of one of the parties involved. Optimizing schedules and contact slots can free up sufficient time for teachers to expose their students to the scholarship that should be the foundation of any lawyer’s culture, and for students to familiarize themselves with such scholarship and the techniques necessary to handle it.

Why Small Groups: Introducing Students to Legal Scholarship

As stated beforehand, law at university is not, and should not be considered, a vocational subject. Much more than a mere requirement to practice law, a law degree is the introduction to one of the most powerful social techniques to regulate relationships and prevent disputes among members of a given community. The great question of whether law is a social science or part of the humanities has been extensively explored by scholarship; ²² arguably, law is simultaneously neither and both, as there are aspects of the law that must be addressed from a social science perspective ²³ and elements that are better assessed from a humanities standpoint. ²⁴ This makes reading a fundamental aspect of how lawyers interact with the world. ²⁵ Reading law and legal texts is thus not merely an exercise in discovery and memorization of legal facts and opinion: it is in fact a process of engagement with local and global societies, their constituents and their values. Reading and understanding scholarship becomes therefore crucial in the development of young lawyers; however, properly understanding scholarship requires field-specific knowledge and tools. It is unrealistic, and possibly unfair, to expect that law students are ready and capable of handling legal scholarship from the outset. ²⁶ Teaching students how to read the law is one of the primary tasks of law teachers. Reading may be prima facie perceived as a solitary activity rather than a collective one—and, for an expert reader, this may well be true. Learning the process of reading law, however, requires guidance, as stated beforehand; guidance may come in different forms, such as appropriate reading lists, ²⁷ reading exercises ²⁸ or collective reading and discussion of scholarly articles in small discussion groups.

In 2019, the late John Gardner taught a course in Oxford entitled ‘Philosophical Issues in Anti-Discrimination Law’. The course ran for 7 weeks, with one two-hour seminar each week, and it was ‘not associated with any particular course or examination’, but rather a course to be taken purely for the sake of knowledge and intellectual stimulation. ²⁹ It is not uncommon for graduate students to be invited to attend one-off seminars that could be delivered by members of staff in their institutions or academic guests; it has become rather rare, however, that students are offered an entire course—as long and thorough as any LLM option taught in the UK universities—without any form of assessment or credit. Reasons may vary, although they most likely have something to do with students’ lack of time to commit to a 8-week programme that will not provide them with any credits, and teachers not quite enthusiastic about devoting 16 hours of free labour. However, I would argue that these seminars aimed at simply discussing articles and ideas on a given topic, without the pressure of intended learning outcomes, measurable results and marks, should be encouraged by universities, be part of any academic’s teaching portfolio, and avidly sought by students—for they reflect, in the purest form, what academia and education should be about.

I would not expect universities to routinely encourage the organization and delivery of seminars for credit, or at least not be assessed, anytime soon. If done properly, a cycle of seminars like Gardner’s takes almost as much time as any course at masters level. It is highly unlikely that such a significant number of hours would be included in an academic’s workload without an assessment exercise at the end or a number of credits gained by students, or that academics would be willing to put in so much work during either their research time or their free time. ³⁰

However, if the aim is not merely to recruit students in large numbers but also to transform those recruits into successful graduates, then these activities should be encouraged and be available in numbers and across various disciplines. They may indeed be the best instruments to cultivate the intellect of law students and get them to discover new things within the context of the law. One of the problems created by the standardization of education and the credit system is the fact that there are a number of core courses that take up most of the curriculum, leaving little space for options. Moreover, such options are often chosen—because of the competitiveness of the field and the need to build a CV appealing to recruiters in law firms and chambers—not with one’s passion or curiosity in mind, but rather after evaluating criteria like whether the assessment is congenial to one’s self-perceived strengths, what the average performance of past students is or how much time is required in terms of reading. Therefore, a number of students never get exposed to theoretical and practical aspects of the law that could stimulate their intellect and help them in knowing, reflecting, writing and talking about law. Seminars delivered not for credit, but purely for knowledge, could fill such a void and possibly offer an even better alternative: since students are ultimately pressured by the system to choose options that may not fit their passions or curiosity, they should be at least given the possibility to cultivate such passions or curiosity in a stimulating environment—and, quite importantly, through an experience not designed to lead up to a standardized assessment and a mark that will affect, for better or for worse, their degree class and their employment opportunities.

Some Brief Observations on the Assessment

Because of the fact that marks may not make a lawyer, but they can in fact make their career, a considerable number of questions students ask teachers concern not what to read or what to learn, but rather how to get a high mark in their assessment. One might love to simply reply that they should forget about the marks, focus on learning, understanding and being able to handle the notions and concepts they come across in their reading, and they shall sail smoothly through the waves of the law; unfortunately, marks are considered—perhaps correctly—as the key to open the gates of legal professions, especially those professions that are seen as the inevitable and logical outcomes of a law degree, even by those students who are not particularly looking forward to practising law.

In spite of any effort by universities to standardize assessment and marks, there are always strongly subjective, unforeseeable and unmeasurable factors that affect any mark—perhaps not too drastically, but sufficiently to make a borderline mark swing one way or the other; and, whenever a student asks that question, teachers are usually not aware, especially in large-sized classes, of whether or not they will end up marking that student’s paper. Marking criteria become more detailed every year, but the convincing force of a legal argument also depends on the person reading the said argument (otherwise students’ marks, academic careers and judicial cases would be much more predictable). Second, I would argue that there is not one specific way to get a high mark for an essay or an exam. Students aiming for a high mark, however, should accept and embrace the challenge of showing off their analytical abilities rather than their mere knowledge—and this, admittedly, may not be the easiest thing to ask of a student. Engaging with an exam question at a personal level—thus analysing the problem and providing a personal perspective in the answer—requires confidence ³¹ and skills. To develop those skills, however, lots of reading and practice are needed. And to read, practise and develop the necessary confidence to make one’s legal argument the core of their answer, guidance and contact time are crucial. Guidance, however, may in fact be minimal when it is standardized and modelled on one specific learning style; furthermore, contact time may be numerically sufficient, but it is often the sort of ‘empty’ contact time I described in section ‘The Case for Downsizing Teaching’—namely, hours of lectures that are synchronous in name but very much asynchronous in nature due to the great number of students that makes any significant interaction with them near impossible. I therefore welcome the recent efforts by many law schools to introduce—among others—chunked lectures, flipped classrooms, problem-based learning or gamification amongst their teaching delivery methods. Until these methods become mainstream, however, the question I posed in the introduction remains: if the purpose of law school is to teach how to make a proper legal argument, how can we effectively assess whether such a purpose has been met if universities do not put students in the best position to actually achieve said purpose?

Concluding Remarks

The literature on education objectively shows that any group of students features a number of different and often clashing learning styles. Catering to different learning styles within the same group requires flexibility with the use of diverse teaching methods rather than a standardized approach. The standardization of teaching methods and law school curricula is not beneficial to students and is detrimental to the realization of their intellectual potential. Moreover, it is neither feasible nor desirable to try and objectivize something as subjective and, for this reason, fascinating as an academic’s teaching philosophy.

This is why this article neither attempts to objectively assess contemporary law teaching nor to provide an organic investigation of all aspects of teaching: teaching is assuredly very subjective, as is learning. The debate on the ‘death of the lecture’ is a very good example of such subjectivity: questions on the appropriateness of lectures in contemporary higher education have been raised for half a century now; technology has provided teachers with a number of different media and tools; and much ink has been spilled on the beneficial effects of small and medium-group teaching and individual tutoring; nevertheless, lectures are still the core teaching delivery method of any law school curriculum, and not even the closure of campuses all over the world after the Covid-19 outbreak has managed to replace them with alternative forms of classes.

Ultimately, universities are places for the exchange of knowledge, or at least its transmission—if one wants to dismiss the benefit that interaction with students brings to any academic. The perception of the effectiveness of various forms of knowledge exchange very much depends on one’s teaching philosophy and, to bring things back to the point raised in the early parts of this article, one’s idea of the purpose of law school. As stated beforehand, what students should learn in law school is not the law per se (as knowing where to find the law is a sufficient condition to be a fine lawyer), but how to make a legal argument. And to teach how to make a legal argument, I do not think there are more effective ways than to welcome students into the scholarly community, exposing them to the same arguments, debates and events academics engage with, and demanding from them the same enthusiasm and passion for the law. If such enthusiasm and passion are shared, it is then possible to teach them methods of interpreting and applying the law and demand from them the same sort of rigour that is required from academics, attorneys and judges in building legal arguments. Few instruments are, in my opinion, more effective at forging the forma mentis of someone who wishes to master a powerful social technique such as the law.

Having said that, scholarship feeds on intellectual exchange; and because of this, I dread thinking that one may mistake my intentions for setting in stone the benchmarks of a good law teacher. In fact, my objective is quite the opposite: I wish to present my scepticism towards the hour-long lecture, the enthusiasm for small-group teaching, the importance of tutoring and feedback and the disbelief in the usefulness of standardized assessment as starting points for a much broader debate on whether contemporary law curricula are loyal to the original purpose of universities—namely, being the wardens of reason, curators of philosophy and protectors of diversity of opinions.