Sensus communis: experiential learning and the law school curriculum


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Keynote presentation to the International Journal of Clinical Legal Education Conference, University of Northumbria Law School, 7.7.10.

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  • Sensus communis: experiential learning and the law school curriculum

    1. 1. sensus communis: experiential learning and the law school curriculum Paul Maharg Northumbria Law School
    2. 3. Glasgow
    3. 4. presentation structure <ul><li>Francis Hutcheson </li></ul><ul><li>sensus communis : a genealogical sketch </li></ul><ul><li>Dewey & the Laboratory School </li></ul><ul><li>Law schools & experiential learning </li></ul><ul><li>Law schools & curriculum </li></ul><ul><li>Slides @ </li></ul>
    4. 5. <ul><li>‘ Occasionally Law … tries to be like children outside the School. Law is sometimes caught playing “Let’s pretend” games – let’s pretend we are an advocate or let’s pretend we are interviewing a client. Law sometimes forgets that it is not there to pretend anything anymore. It is in School to be a pupil and do the things that other pupils do.’ </li></ul><ul><ul><ul><li>Bradney, A. (2010). End of Term Report. The Reporter: The Newsletter of the Society of Legal Scholars , 40, 2010, 1. </li></ul></ul></ul>
    5. 6. US Airways Flight 1549…
    6. 8. what difference can legal education make? <ul><li>Legal education has a weak socialising affect, much weaker than the centripetal power of the job market. </li></ul><ul><ul><ul><li>A. Sherr, A., Webb, J. (1989). Law students, the external market, and socialisation: do we make them turn to the City? Journal of Law and Society 16, 2, 225. </li></ul></ul></ul><ul><li>Legal subjects studied affect career ambitions, but had a neutral, short term or negative impact on the public service orientation of law students. </li></ul><ul><ul><ul><li>Boon, A. (2005). From public service to service industry: the impact of socialisation and work on the motivation and values of lawyers. International Journal of the Legal Profession, 12, 2, 229-260. </li></ul></ul></ul><ul><li>A study on socio-economic & ethnic diversity in Scotland found similar results. </li></ul><ul><ul><ul><li>Anderson, S., Maharg, P., Murray, L. (2003) Minority and Social Diversity in Legal Education , Scottish Government Official Publication. </li></ul></ul></ul>
    7. 9. <ul><li>Francis Hutcheson (1694-1746) </li></ul><ul><li>Professor of Moral Philosophy, University of Glasgow (1730-46) </li></ul><ul><li>An Inquiry into the Original of our Ideas of Beauty and Virtue (1725). </li></ul>
    8. 10. <ul><li>‘ [T]he old Notions of natural Affections , and kind Instincts; the Sensus communis, the Decorum, and Honestum , are almost banished out of our Books of Morals; we must never hear of them in any of our Lectures for fear of Innate Ideas ; all must be Interest and some selfish View.’ </li></ul><ul><ul><ul><li>Francis Hutcheson, Collected Works, 7 vols, facsimile edition prepared by Bernhard Fabian. Hildesheim: Olms, 1969-90. Vol VII, 475 </li></ul></ul></ul>
    9. 11. sensus communis as virtuous spiral <ul><li>Translation by Aquinas for a phrase in Aristotle’s De Anima, where it is used to describe the cognitive activity of the mind to engage in discriminating relationships between particulars and universal – in effect, a meta-sense. </li></ul><ul><ul><ul><li>Schaeffer, J.D. (1990). Sensus Communis: Vico, Rhetoric and the Limits of Relativism. Durham, North Carolina, Duke University Press. </li></ul></ul></ul><ul><li>In the Stoic tradition, for example Seneca’s De Beneficiis, it refers more to the manners and sense of decorum that belong to a society or community – in the 18 th century revival of Stoic literature Shaftesbury’s Sensus Communis: An Essay on the Freedom of Wit and Humour is an example. </li></ul><ul><li>For Hutcheson: </li></ul><ul><ul><li>1 creates 2. 2 influences 1. </li></ul></ul><ul><ul><li>Moral theory is lived practice </li></ul></ul>
    10. 12. law as reason? <ul><li>‘ Law is the dictate of reason, determining every rational being to that which is congruous and convenient for the nature and condition thereof.’ </li></ul><ul><ul><ul><li>James Dalrymple, Viscount Stair, The Institutions of the Law of Scotland. 1681, reprinted 1981. Edited D.M. Walker, University Presses of Edinburgh & Glasgow, I, I, I. </li></ul></ul></ul>
    11. 13. William Hazlitt <ul><li>‘ Natural disinterestedness of the human mind’ </li></ul><ul><li>ie it is our sympathetic imagination that influences our relations with others, not reason or self-interest: </li></ul><ul><li>‘ The imagination, by means of which alone I can anticipate future objects, or be interested in them, must carry me out of myself into the feelings of others by one and the same process by which I am thrown forward as it were into my future being, and interested in it. I could not love myself, if I were not capable of loving others. Self-love, used in this sense, is in its fundamental principle the same with disinterested benevolence.’ </li></ul><ul><ul><ul><li>Hazlitt, W. (1805). An Essay on the Principles of Human Action: Being an Argument in Favour of the Natural Disinterestedness of the Human Mind. Gainesville: Scholars’ Facsimiles & Reprints, 1969. </li></ul></ul></ul>
    12. 14. <ul><li>Geography is not only a set of facts and principles, which may be classified and discussed by themselves; it is also a way in which some actual individual feels and thinks the world. It must be the latter before it can become the former. </li></ul><ul><li>John Dewey </li></ul>
    13. 15. <ul><li>John Dewey (1859-1952) </li></ul><ul><li>‘ A democracy is more than a form of government; it is primarily a mode of associated living, of conjoint communicated activity.’ </li></ul><ul><ul><ul><li>Democracy and Education (1916) </li></ul></ul></ul>
    14. 16. Standard classroom c.1908. Would you like to learn about measurement and volume this way? Thanks to Mike Sharples,
    15. 17. … o r this way? (Dewey’s Laboratory School, U. of Chicago, 1901)
    16. 18. Would you like to learn about history and town planning this way?
    17. 19. … o r by building a table-top town for a social life history project? (Dewey’s Lab School)
    18. 20. two origins of contemporary learning theory <ul><li>‘ One cannot understand the history of education in the United States in the twentieth century unless one realizes that Edward L. Thorndike won and John Dewey lost.’ </li></ul><ul><li> Lageman, E.C. (1989) The plural worlds of educational research, History of Education Quarterly , 29(2), 185-214 </li></ul>E.L. Thorndike John Dewey
    19. 21. E.L. Thorndike John Dewey 1. Educational psychologist Philosopher & educationalist 2. Theoretician & experimentalist Theoretician and practical implementer 3. Explored the dyadic relationship between mind & the world Interested in the arc between experience & the world 4. Adopted as precursor of a behaviourist approach to learning: assessment-led; laws of effect, recency, repetition Pragmatist approach to learning: prior experience, ways of contextual knowing; democracy & education 5. Emphasised teaching strategies Emphasised learning ecologies 6. Followed by: Watson, Skinner, Gagné; outcomes, competence & instructional design (ID) movements. Followed by: Bruner, Kilpatrick, standards movement, Constructivist tradition.
    20. 22. signature pedagogies (Lee Shulman) Sullivan, W.M., Colby, A., Wegner, J.W., Bond, L., Shulman, L.S. (2007) Educating Lawyers. Preparation for the Profession of Law, Jossey-Bass, p. 24
    21. 23. transforming the pedagogy…?
    22. 24. <ul><li> A specific form of problem-based learning. At least seven distinguishing elements – </li></ul><ul><li>active learning </li></ul><ul><li>through performance in authentic transactions </li></ul><ul><li>involving reflection in & on learning, </li></ul><ul><li>deep collaborative learning , and </li></ul><ul><li>holistic or process learning, </li></ul><ul><li>with relevant professional assessment </li></ul><ul><li>that includes ethical standards </li></ul><ul><li>– that can have a significant effect on learning when used in simulations of professional practice. </li></ul>transactional learning
    23. 26. personal injury negotiation project <ul><li>Administration: </li></ul><ul><li>272 students, 68 firms, 8 anonymous information sources – PI mentors </li></ul><ul><li>68 document sets, 34 transactions </li></ul><ul><li>Each scenario has embedded variables, called from a document server, making it similar, but also unique in critical ways </li></ul><ul><li>students have 12 weeks to achieve settlement </li></ul><ul><li>introductory & feedback lectures </li></ul><ul><li>discussion forums </li></ul><ul><li>FAQs & transaction guideline flowcharts </li></ul><ul><li>voluntary face-to-face surgeries with a PI solicitor </li></ul>
    24. 27. PI project: assessment criteria <ul><li>We require from each student firm a body of evidence consisting of: </li></ul><ul><li>fact-finding – from information sources in the virtual community) </li></ul><ul><li>professional legal research – using WestLaw + paperworld sources </li></ul><ul><li>formation of negotiation strategy – extending range of Foundation Course learning </li></ul><ul><li>performance of strategy – correspondence + optional f2f meeting, recorded </li></ul>
    25. 31. PI project: (some of) what students learned <ul><li>extended team working </li></ul><ul><li>real legal fact-finding </li></ul><ul><li>real legal research </li></ul><ul><li>process thinking in the project </li></ul><ul><li>setting out negotiation strategies in the context of (un)known information </li></ul><ul><li>writing to specific audiences </li></ul><ul><li>handling project alongside other work commitments </li></ul><ul><li>structuring the argument of a case from start to finish </li></ul><ul><li>keeping cool in face-to-face negotiations </li></ul><ul><li>more effective delegation </li></ul><ul><li>keeping files </li></ul><ul><li>taking notes on the process... </li></ul>
    26. 32. PI project: what students would have done differently… <ul><li>‘ In tackling this project I think that our group made two main mistakes. The first mistake we made was in approaching the task as law students as opposed to Lawyers. By this I mean we tried to find the answer and work our way back. Immediately we were thinking about claims and quantum and blame. I don't think we actually initiated a claim until a week before the final settlement. I think the phrase &quot;like a bull in a china shop&quot; would aptly describe the way we approached the problem. […] Our group knew what area of law and tests to apply yet we ended up often being ahead of ourselves and having to back-pedal </li></ul><ul><li>The second mistake we made was estimating how long it would take to gather information. We started our project quite late on and began to run out of time towards the end. None of us appreciated the length of time it would take to gather information and on top of this we would often have to write two or three letters to the same person as the initial letter would not ask the right question.’ </li></ul>
    27. 33. PI project: what students would have done differently… <ul><li>‘ At the beginning we thought we perhaps lost sight of the fact that we had a client whom we had a duty to advise and inform. On reflection we should have issued terms of engagement and advised the client better in monetary terms what the likely outcome was going to be.’ </li></ul><ul><li>‘ […] unlike other group projects I was involved in at undergraduate level I feel that I derived genuine benefit from this exercise in several ways: </li></ul><ul><ul><li>1. reinforcing letter-writing, negotiation, time-management and IT skills </li></ul></ul><ul><ul><li>2. conducting legal research into issues of quantum </li></ul></ul><ul><ul><li>working effectively in a group as a group - not delegating tasks at the first meeting and then putting together pieces of work at the second meeting.’ </li></ul></ul>
    28. 34. curriculum: tempo & complexity
    29. 35. curriculum: tempo & complexity
    30. 37. three-level thinking…
    31. 38. <ul><li>Curriculum is multiple distributed technologies and practices. Eg timetables, course teams, notepads, learning spaces, forms of knowledge transmission, discussion, computers, forms of discourse, writing – all existing in time spans. </li></ul><ul><li>Some technologies are ancient ( lectura, glossa) , some new (SIMPLE, standardised clients, mobile phones) </li></ul><ul><li>Success in learning means: </li></ul><ul><ul><li>f or staff, the need to compose and orchestrate the curriculum . </li></ul></ul><ul><ul><li>f or students, the tools, support & spaces to manage their own curriculum </li></ul></ul>curriculum is technology
    32. 39. OER software: SIMPLE <ul><li>See </li></ul><ul><li>Aims – </li></ul><ul><li>Be collaborative : staff, students, different institutions, different professions </li></ul><ul><li>Be international – in our increasingly globalized jurisdictions we need to enable our students to work with others </li></ul><ul><li>Research our practice </li></ul><ul><li>Integrate with other forms of simulation, eg standardized clients </li></ul><ul><li>O rganize like Mozilla </li></ul>
    33. 40. OER in simulation resources: Simshare <ul><li>See </li></ul><ul><li>Aims: </li></ul><ul><li>Collate simulation resources which are repurposed as open educational content </li></ul><ul><li>Create guidelines for future publication of simulation projects </li></ul><ul><li>Help staff to use simulation more widely and effectively through staff development . </li></ul><ul><li>Create methodologies that will help staff to see more clearly how simulation OER can be interpreted. </li></ul>
    34. 42. my profile
    35. 43. OER ethics resources <ul><li>See </li></ul>
    36. 44. <ul><li>Two book series: </li></ul><ul><li>Emerging Legal Education Book Series, Ashgate Publishing, editors Paul Maharg, Caroline Maughan, Elizabeth Mertz. </li></ul><ul><li>Digital Games and Learning Book Series, Continuum Publishing, editors Sara de Freitas & Paul Maharg. </li></ul>research & publication…
    37. 45. there’s no such thing as experiential learning <ul><li>W e don’t learn from experience </li></ul><ul><li>We learn by working to interpret experience, given that, when learning: </li></ul><ul><ul><li>we have different prior knowledge </li></ul></ul><ul><ul><li>our aims are always different in subtle ways </li></ul></ul><ul><ul><li>we learn different things from the same resources </li></ul></ul><ul><ul><li>‘ resources’ means symbolic objects like books & web pages, but also people, including ourselves </li></ul></ul><ul><ul><li>we can learn intimately and deeply from any resource, given a suitable context </li></ul></ul><ul><li>Teachers and students need to encode those interpretations as complex memories, habits, skills, attitudes or knowledge objects if they are to re-use them </li></ul><ul><ul><ul><li> Schratz, M. and Walker, R.(1995) Research as Social Change: New Opportunities for Qualitative Research. London: Routledge. </li></ul></ul></ul>
    38. 46. <ul><li>Slides @ </li></ul><ul><li> </li></ul><ul><li>Discussion @ </li></ul><ul><li> </li></ul>