• Gabrielle Appleby, Sean Brennan and Andrew Lynch

Keep Calm and Carry On: Why the Increasing Automation of Legal Services Should Deepen and Not Dimini

The legal profession is not immune from the impact of rapid technological advances. The more drastic of these changes are those that threaten to displace or rival the provision of legal services themselves by the introduction of Artificial Intelligence and the development of platforms for cheap and easily obtainable automated legal advice. The need for legal education to respond to so-called ‘digital disruption’ is beyond dispute. But, in this chapter, we argue that there is a risk that legal educators will react in an unmediated fashion – losing sight of what makes legal education distinctive and, we believe, the reason it will continue to be valued.

The debate over technological change in the legal profession and its implications for legal education, as well as the more general diversification of law students, reinforce rather than undermine some key commitments and observations made about legal education in recent times. Notably, these acknowledge the need for critical and analytical thinking as a fundamental core of legal education. In 2000, the Australian Law Reform Commission Report, Managing Justice: A Review of the Federal Civil Justice System, at 2.77, explained that ‘professional skills training should not be a narrow technical or vocational exercise. Rather, it should be fully informed by theory, devoted to the refinement of the high order intellectual skills of students, and calculated to inculcate a sense of ethical propriety, and professional and social responsibility’.

We argue that the unpredictable directions in which technology may take us, and the burgeoning diversity of the legal services market and opportunities for career mobility that will ensue, mean that law schools must maintain a commitment in their curricula to affording students meaningful and disciplinary-based opportunities for deep learning and critical skills development.

It was with those commitments that we approached the design and implementation of a new elective course at UNSW Law in 2016: Contemporary Constitutional Law. Our focus was to offer, in our sub-discipline of constitutional law, a fresh opportunity for students to deepen their understanding of that area (and, not unimportantly, our own as teachers and researchers). In designing the course, the skills development we particularly had in mind was closely allied to the form of deeper learning distinctive to a legal university education.

In brief, the course focused on recent cases argued before the High Court, requiring students to read the judgments in those cases, the submissions before the Court, or, in some instances, both. Our objective was to develop and deepen students’ skills in case analysis and critical engagement with legal argument and judicial reasoning. We gave students a number of tools to achieve that. These included:

  • Once the course moved from its foundational phase to the analysis of contemporary cases, we provided an interim, ‘modelled’ class. We gave students an opportunity to watch us model a critical case discussion, and to understand how different academic reflections could emerge of the same case, and how those could be expressed in a respectful but probing manner. These modeled dialogues also provided students with an opportunity to witness how a semi-formed view might be expressed, explored, and changed.

  • Acknowledging that students often had little experience in reading full cases and may find this task overwhelming we introduced a tabular technique that we encouraged students to use to grasp, particularly in complex, multi-issue and multi-judgment cases, how the different judges decided the different issues and how this led to the ultimate result.

  • To ensure students’ understanding of the case, as well as to assist them in analysing the relevant principles, judicial reasoning and consequences from internal and external perspectives, we provided them with a series of questions, which encouraged them to consider the many different contextual background and implications of the case.

  • To assist with students’ preparation, every week one group was allocated the task of providing a ‘preliminary case analysis’, which was reviewed by the teachers for accuracy and then shared among the students. The group that prepared the case note was given the responsibility of initiating the discussion with and debate amongst the full class.

  • We invited practitioners and other experts to classes (where possible) to contribute to case discussions. This provided a further alternative view to discussions and allowed students to understand the wider context in which the decisions were made, and how contingent and path-dependent judicial decisions are.

This post is taken from the chapter, ‘Keep Calm and Carry On: Why the Increasing Automation of Legal Services Should Deepen and not Diminish Legal Education’, in The Future of Australian Legal Education (Thomson Reuters, 2018).

Gabrielle Appleby, Sean Brennan and Andrew Lynch , UNSW Law

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