Why ADR must be a mandatory subject in the law degree - the profession

The Australian legal profession, as well as the content and pedagogy of legal education across Australia, are steeped in tradition and conservatism. Indeed, the legal profession and our institutions of legal education are in a relationship of mutual influence which leaves the way we teach law resistant to change. There has traditionally been pushback against the notion that dispute resolution should have a place amongst black letter law subjects in the legal curriculum. This paper argues that this position cannot be maintained in the modern legal climate. We challenge legal education orthodoxy and promote NADRAC’s position that alternative dispute resolution should be a compulsory, stand alone subject in the law degree. We put forward ten simple arguments as to why every law student should be exposed to a semester long course of DR instruction.

Towards growing Indigenous culturally competent legal professionals in Australia

The Review of Australian Higher Education (Bradley Review: 2008) identified the need for tertiary institutions to incorporate Indigenous knowledges into curriculum to improve educational outcomes for Indigenous Australians and to increase the cultural competency of all students. It recommended that higher education providers ensure that the institutional culture, the cultural competence of staff and the nature of the curriculum supports the participation of Indigenous students, and that Indigenous knowledge be embedded into curriculum so that all students have an understanding of Indigenous culture. While cultural competency has been recognised as an essential element of professional practice in health services internationally, and legal practice in the United States, very little work has been done to promote the cultural competency of legal professionals in the Australian context. This paper will discuss a pilot cultural competency professional development program for legal academics at Queensland University of Technology (Brisbane) developed with the assistance of a Faculty of Law Teaching and Learning Grant in 2011-2012, and tell one Murri’s journey to foster Indigenous cultural competency in an Australian law school.

Professional Responsibility and Legal Ethics in Queensland [2nd Ed.]

Professional Responsibility and Legal Ethics in Queensland offers a proven, practical approach to identifying and resolving ethical issues that may arise in daily legal practice in Queensland. It is an excellent resource for practitioners and students alike who need to navigate relevant legislation and understand legal ethics through accessible, problem-based scenarios. The introduction of the Australian Solicitors Conduct Rules and Barristers’ Rule 2011, and changes to enforcement mechanisms where breaches have occurred, make the Second Edition essential reading for solicitors, barristers and law students in Queensland. Diverse practice structures, the enactment of the new rules, and other legislative developments will affect lawyers’ work and the way they must interact with their clients, with each other and with the court. Providing detailed explanation and analysis of these changes, the authors explain the ethical and regulatory environment for Queensland lawyers as the national legal services market continues to evolve.

O ensino da Medicina Legal na formação profissional da carreira jurídica

A introdução do ensino médico-legal nos currículos de Direito, já assegura longa data e teve sua proposta relatada por Rui Barbosa e aprovada na Câmara dos Deputados, após o que o Governo brasileiro determinou a criação da cátedra de Medicina Legal nas Faculdades de Direito do país a partir de 1891. Ao longo de muitos anos foi disciplina obrigatória nos cursos de Direito transparecendo a importância da matéria na formação dos profissionais, mormente aqueles que militam na esfera criminal, mas também aplicável a, praticamente, todas as especialidades da área jurídica. A despeito da evolução das ciências forenses, que introduziram no século XXI novos horizontes da sua aplicação no contexto jurídico, ressalto ainda a própria cobrança da matéria nos concursos, para aqueles que almejam a carreira Policial. No entanto, independente da indiscutível importância da matéria, na formação acadêmica do profissional de direito, o Ministério da Educação decidiu estabelecer a Medicina Legal como disciplina optativa nos cursos de Direito. Essa medida veio ao de encontro dos interesses sociais, pois a sociedade, na busca de seus direitos, requer profissionais bem formados, com conhecimento compatível com a evolução científica. Ensinar Medicina Legal é uma árdua tarefa, pois há necessidade de valorizar mais a atividade docente e proporcionar meios para que esse ensino seja amplamente desenvolvido na formação da carreira jurídica. No presente trabalho são expostas as argumentações técnicas e pedagógicas para a manutenção de disciplina como obrigatória nos Cursos de graduação em Direito, visando, com isso, uma formação acadêmica mais completa, que corresponda a sua importante aplicação nas diversas áreas do Direito, bem como sua implantação como disciplina obrigatória nos exames de ordem da OAB.

Legal education in crisis: healing and humanizing Canadian law schools /

Western law schools are suffering from an identity and moral crisis. Many of the legal profession's problems can be traced to the law school environment, where students are taught to reason and practice in ways that are often at odds with their own personalities and values and even with generally accepted psychologically healthy practices. The idealism, ethic of care, and personal moral compasses of many students become eroded and even lost in the present legal education system. Formalism, rationalism, elitism, and big business values have become paramount. In such a moment of historical crisis, there exists the opportunity to create a new legal education story. This paper is a conceptual study of both my own Canadian legal education and the general legal education experience. It examines core problems and critiques of the existing Western legal education organizational and pedagogical paradigm to which Canadian law schools adhere. New approaches with the potential to enrich, humanize, and heal the Canadian law school experience are explored. Ultimately, the paper proposes a legal education system that is more interdisciplinary, theoretically and practically integrated, emotionally intelligent, technologically connected, morally accountable, spiritual, and humane. Specific pedagogical and curricular strategies are suggested, and recommendations for the future are offered. The dehumanizing aspects of the law school experience in Canada have rarely been studied. It is hoped that this thesis will fill a gap in the research and provide some insight into an issue that is of both academic and public importance, since the well-being of law students and lawyers affects the interests of their clients, the general public, and the integrity and future of the entire legal system.

Professional legal education reviews : too many 'what's, too few 'how's

Former colonies of the British Empire, Hong Kong and Australia inherited the common law system and the basic structure of legal education and training from England and Wales and remain the closest siblings in terms of proximity in distance and the high degree of similarity between their respective frameworks for legal education and training. This article first summarizes the major reviews of legal education and training in these three jurisdictions: England and Wales, Australia and Hong Kong over the last four decades and argues that while these reviews are keen on investigating ‘what’ is lacking in the curriculum and ‘what’ needs to be changed to equip graduates for the challenges of the day, they do not seem to have shown the same level of enthusiasm in identifying ‘how’ the intended outcomes prescribed can be achieved. Nevertheless, law schools in these jurisdictions recently began to tap on, and combine with the improved classroom pedagogy, clinical legal education and internship, innovative teaching tools and solutions in an attempt to deliver more enhanced learning experience to students. The article examines the role ascribed to technology in legal education and training with a particular reference to SimPLE, a e-learning platform developed in England and Wales which has been put to use in Australia as well, and the reform initiatives taken, and planned to be taken, by the Department of Professional Legal Education at the University of Hong Kong in its Postgraduate Certificate in Laws programme. This article concludes by pointing out the importance of collaboration among stakeholders including teachers, university administration and the legal profession in effecting a more active role of technology in legal education and training of today.

Legal practice and ethics

This book aims to challenge students and lawyers to think critically about the way in which they will or do practise law. It is intended to be a guide on the various obligations and duties that a lawyer owes to the court, other lawyers, clients and the community in general. The hope is that students of law will see the ongoing value of maintaining the integrity of the legal profession and the value that lawyers provide to the community when we get things right.

O where are you going? O do you imagine? Reproduction and response : a reflexive sociology of scholarship of teaching and learning in practical legal training

My doctoral research studies Australian PLT practitioners’ engagement with scholarship of teaching and learning. I argue that many PLT practitioners are motivated to engage with scholarship of teaching and learning in their work. There are, however, individual and extra-individual impediments.
PLT practitioners are lawyers that teach in institutional practical legal training (“PLT”). Satisfactory completion of mandatory PLT is an eligibility requirement for admission to the Australian legal profession. The PLT requirement is additional to academic legal qualifications. PLT is undertaken at a post-graduate level with, or after, the academic law degree.
My study investigates PLT practitioners’ motivations and capabilities to engage with scholarship of teaching and learning (“SoTL”). I study organisational symbolic support for SoTL in PLT, and organisational allocation of resources to SoTL in PLT.
The study involves individual and extra-individual domains of PLT practitioners’ work. It considers how social structures (e.g. “the juridical”) are inscribed into individuals’ practices (“teaching”) and, conversely, whether practices influence social structures.
My research adopts qualitative methodologies. These involve inter-disciplinary exchanges between law, legal education, practice research, sociology of law, cultural theory, and theory and practice of teaching and learning. My theoretical framework draws on Pierre Bourdieu’s “reflexive sociology”, and Michel de Certeau’s “heterological science”.
I sourced data from documents, and semi-structured interviews with 36 Australian PLT practitioners. Documentary sources include statutory instruments, speeches, reports, practice directions, histories, and scholarly publications.
To analyse the data I adopted Kelle’s characterisation of “theoretical sensitivity”, drawing on “explicit” and “emergent” analysis strategies derived from “grounded theory”. The explicit strategies were based on my theoretical framework. The emergent strategy involved sensitivity to non-explicit concepts and theories that emerged from the data. Computer-aided qualitative data analysis software expedited these methods.
My findings to date question dominant legal structures’ readiness for change, the implications of this for teaching and learning in PLT, and in particular for PLT practitioners’ engagement with SoTL in PLT.
The espoused rationale for mandatory PLT (in statutes) is improvement for the protection of clients, the administration of justice, and to assure quality legal services. The tacit rationale is improved quality of legal education, and experiences, for lawyers-to-be. My thesis argues dominant structures in legal education impede the espoused and tacit objectives, and impede PLT practitioners’ engagement with scholarship of teaching and learning.

The development of the divided profession in Queensland

The structure of the Queensland legal profession today is a product of a series of historical developments that can be traced to the beginnings of the legal profession in England. A proper understanding of the present practice and structure of the Australian legal profession needs an understanding of these English origins and then of the profession's introduction into Australia. It is proposed, therefore, to give a brief outline of the development of the legal profession in England and then to deal with the early years of the profession in the Colony of New South Wales after British settlement. The article will then describe the development of the profession in Queensland after separation from New South Wales in 1859 with some emphasis on the major changes relating to the roles of barristers and solicitors.

Una sociedad legalista: Abogados, procuradores de causas y la creación de una cultura legal colonial en Lima y Potosí, 1540–1670

This study deals with the formation, reproduction, and the role in litigation of two branches of the legal profession, lawyers and procurators. They were the experts in charge of civil, criminal, and ecclesiastical litigation during the Old Regime. While the lawyers provided erudite legal advice, procurators oriented and drove the procedure as legal representatives of their clients. The European legal revolutions of the twelfth and thirteenth centuries forged a new legal culture in which the lawsuit was reputed to be the best way to settle disputes. Likewise, that legal culture conferred an important place to specialists as legal facilitators of the contending parties. When Castilians exported their legal system to the New World, they spread a complex and bureaucratic framework, contributing to the reproduction of a class of experts in urban spaces. Lima and Potosi, two urban centers created in the sixteenth century, quickly became significant ‘legal cities’. This dissertation explores how the legal markets of these cities operated, the careers of their specialists, their professional options, social images regarding them, and litigation costs. This study examines the careers of 267 facilitators and demonstrates that they constituted a class of distinctive legal professionals. Legal culture embodies the representation and use of law. The closeness of specialists with litigants, in particular of procurators familiarized the parties with litigation and its complex processes. These specialists forged dominant legal discourses and manipulated juridical order. Litigants were not passive agents of their specialists. Caciques and members of the Hispanicized communities appropriated the law in a visible way as the growing litigiousness illustrates. Colonial law (of a pluralistic basis) was an arena of assertion and discussion of rights by different social actors, encomenderos, leading citizens, widows, native chieftains, artisans, and commoners. This study concludes that this struggle and manipulation served to legitimate the role of those legal experts and gave birth to a complex legalistic society in the Andes under Spanish Habsburg rule.

The Exclusion of Race From Mandated Continuing Legal Education Requirements: A Critical Race Theory Analysis

The purpose of this paper is to critique the system of CLE using Critical Race Theory as an analytical lens in an effort to reveal possible reasons for the exclusion of bias and discrimination from CLE offerings in the legal profession.

Is scholarship of teaching and learning in practical legal training a professional responsibility?

In Australia, applicants for admission to the legal profession must hold appropriate academic qualifications, and competently complete practical legal training (PLT). The author's research investigates institutional PLT practitioners' engagement with scholarship of teaching and learning (SoTL). The theoretical framework for the research draws on Bourdieu and Passeron's reflexive sociology of education and culture. This article focuses on responses to a paramount obligation proposition put to 34 PLT practitioners during semi-structured interviews: Might lawyers' paramount obligations to the court intersect with PLT practitioners' teaching and assessment practices? The proposition elicited responses and insights about field forces within the individual and organisational dimensions of teaching and learning in PLT. These include top-down/bottom-up pressures that impinge on PLT practitioners' engagement with SoTL.

Air Gondwana : Using ICT to create an authentic learning environment to teach basic negotiation skills

In recent years greater emphasis has been placed by many Law Schools on teaching not only the substantive content of the law but also the skills needed for the practice of the law. Negotiation is one such skill. However, effective teaching of negotiation may be problematic in the context of large numbers of students studying in a variety of modes and often juggling other time commitments. This paper examines the Air Gondwana program, a blended learning environment designed to address these challenges. The program demonstrates that ICT can be used to create an authentic learning experience which engages and stimulates students.

Professions without borders : global ethics and the international rule of law

The emergence of strong sovereign states after the Treaty of Westphalia turned two of the most cosmopolitan professions (law and arms) into two of the least cosmopolitan. Sovereign states determined the content of the law within their borders – including which, if any, ecclesiastical law was to be applied; what form of economic regulation was adopted; and what, if any, international law applied. Similarly, states sought to ensure that all military force was at their disposal in national armies. The erosion of sovereignty in a post-Westphalian world may significantly reverse these processes. The erosion of sovereignty is likely to have profound consequences for the legal profession and the ethics of how, and for what ends, it is practised. Lawyers have played a major role in the civilization of sovereign states through the articulation and institutionalisation of key governance values – starting with the rule of law. An increasingly global profession must take on similar tasks. The same could be said of the military. This essay will review the concept of an international rule of law and its relationship to domestic conceptions and outline the task of building the international rule of law and the role that lawyers can and should play in it.