Cooper, D et al --- "The Emergence of the JD in the Australian Legal Education Marketplace and its Impact on Academic Standards" [2012] LegEdDig 40; (2012) 20(3) Legal Education Digest 23

• The Emergence of the JD in the Australian Legal Education Marketplace and its Impact on Academic Standards

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The Emergence of the JD in the Australian Legal Education Marketplace and its Impact on Academic Standards

D Cooper, S Jackson, R Mason and M Toohey

Legal Education Review, Vol 20, No. 1, 2011, pp 23-48

Since the 1960s, legal education in Australia has been provided in three separate stages: academic study at university, practical legal training and continuing legal education. The traditional route to legal practice was through an undergraduate Bachelor of Laws (LLB) degree, but in recent years the options have broadened significantly.

In this article we focus on what might fairly be viewed as the most controversial option, the Juris Doctor (JD). Across the board, the JD is graduate-entry, but it is currently being delivered in undergraduate, postgraduate and ‘hybrid’ forms. The broad range of available models has led to questions about the academic standards of such courses.

There are numerous factors which have combined, in recent years, to favour the emergence of the JD in the Australian legal education marketplace.

Demand for Law Graduates: In recent years, there has been increased demand in the workplace for people with higher education qualifications and ‘growth in employment in professional occupations’. This has led to strong demand for courses described as ‘career specific’, which allow graduates entry into professions such as law.

In addition, for some students, the law degree has been viewed, not only as a pathway to legal practice, but as a ‘generalist’ degree that may lead to employment in a range of occupations. It has been described as having the potential to lead to ‘a broad range of careers where analytical skills and high-level oral and written language ability would be valued’, including legal practice.

Increased Interest in Postgraduate Study by Mature-Aged Students: A buoyant employment climate for law graduates, combined with competition among the 32 law schools around Australia for students, has provided incentives to create legal study options which will attract new student markets, such as mature-age graduate students.

Some of the motivations for graduates undertaking legal study include enhancing existing career prospects, implementing a career change, or simply a desire to ‘improve themselves and keep stimulated through further study’. As many graduate-entry students are seeking to balance study with family, finances and existing careers, JD courses often cater for the needs of mature-aged students by offering after-hours classes, intensive teaching delivery, and accelerated summer and part-time study options.

Full Fee-Paying JD Students Help Fill Funding Shortfalls: The postgraduate full fee-paying JD can also be seen, in part, as a response to federal government higher education funding policies that have effectively led to law schools being ‘chronically underfunded’.

These funding difficulties also encouraged law schools to turn to international and postgraduate student markets to attract full fee-paying law students.

The JD is an Internationally Recognised Degree: The JD is perceived to be an internationally recognised law qualification which will allow law schools to attract more full fee-paying international student enrolments. It is the major academic pathway to legal practice in the United States of America, where students are required to complete their college education before entering law school. In contrast, the LLB has traditionally been the primary law qualification in common law countries such as England, Scotland, South Africa and Australia.

Traditionally, in Australia, universities have been self-accrediting institutions, exercising autonomy to decide what and how to teach and who will be admitted to learn. This has been described as one of ‘the icons of university life, a legacy in Australia from the British system’. However, in recent times, the higher education sector has experienced rapid growth and diversification, leading to concerns about the quality of some courses and their academic standards. These concerns have contributed to increasing external regulation.

Early attempts to provide some consistency in relation to academic standards were provided when the Australian Qualifications Framework (AQF) was first established by the Ministerial Council on Education, Employment, Training and Youth Affairs in 1995. For masters degrees, the objectives and academic requirements of courses were to be set by universities, having regard to the requirements of such groups as professional bodies.

In 2000, a framework to oversee quality assurance was introduced. The higher education system was to be monitored by the Australian Higher Education Quality Assurance Framework and overseen by the Ministerial Council for Tertiary Education Quality and Employment. The framework included the Australian University Quality Agency (AUQA) and the AQF.

Recently, the Bradley Review of Higher Education recommended that more diligent measures be implemented to achieve quality and consistency in the higher education sector. It was thought that heightened regulation of the tertiary sector would assist it to remain internationally competitive. The federal government’s response to the Bradley Review included a commitment to strengthening the AQF and establishing a new regulatory body to accredit and regulate providers and monitor standards.

The aims of the Australian Learning and Teaching Council project, ‘Graduate Professional Entry Courses in Accounting and Law’, were ‘to examine the academic standards of existing professional entry courses in accounting and law and to identify the academic standards that could differentiate the bachelor and masters degrees’.

Our contributions to the project involved the investigation of law courses. In effect, we were seeking to determine whether the academic standards for JD courses around Australia were at a higher level than those for LLB degrees.

Discussions in the literature regarding academic ‘standards’ in higher education have tended to focus on certain elements. It has been noted that ‘it is important to distinguish between the measurement of learning, the external referencing of measurements, and the reporting of such outcomes’. In our research project, we sought to identify what the academic standards were for JD courses in relation to the ‘measurement of learning’.

Every course coordinator of the 11 JD courses identified at the time of our research was invited to participate in the project. Ten course coordinators agreed to participate; however, only seven actually completed an interview. Some indicated at the outset that they did not wish to participate due to the sensitive nature of the issues involved or as their JD courses were in a state of flux due to course reviews.

We conducted telephone interviews from April to May 2010 centred around 15 interview questions.

Of the 11 JD courses in existence at the time of the interviews, our discussions with course coordinators confirmed that 10 were officially badged at postgraduate and one at undergraduate level.

When conducting our interviews with course coordinators, there were a range of responses to the question, ‘what are the learning outcomes for this program?’ Only two JD course coordinators reported that their course had a specific set of learning outcomes which documented the skills and knowledge that students should possess on completion. Some respondents stated that their JD course had the same set of learning outcomes as their LLB, and had been developed around the core ‘Priestley 11’ areas of knowledge. Several coordinators stated that, in their courses, university-specific graduate attributes were used to articulate course learning outcomes. Only one respondent revealed that their course did not have any expressed learning outcomes.

The responses to the question, ‘in what ways is this program taught at a masters level?’, revealed that four of the course coordinators did not have completely identifiable JD programs that stood apart from their LLB courses. Some respondents then chose to discuss this topic ‘off the record’. However, some participants could articulate ways in which their JD students were expected to achieve higher-level learning outcomes than their LLB counterparts. One example was that the JD in question focused more on developing and assessing research skills. Another example was that JD students were expected to achieve greater depth in their analysis of cases and legal issues.

When respondents were asked, ‘in what ways does this masters program differ to the undergraduate program?’, it became clear that only a minority of JD students were taught separately to undergraduate students. Several course coordinators related that their students were being taught alongside LLB students for all of their subjects and others indicated that this occurred only in core units.

In relation to assessment, some interviewees stated that JD students completed the same assessment tasks as undergraduate students and others indicated that their JD students were set different or extended assessment tasks. In some courses, JD students completed the same assessment as LLB students in the core ‘Priestley 11’ units and only in electives was assessment different.

The remainder of the interview questions were based on the AQF learning outcomes descriptors at the time for a masters degree and asked about the ways in which the JD course developed: (1)mastery or advanced knowledge; (2)high order analytical skills; (3)creativity and flexibility; (4)complex problem solving; and (5) rigorous and independent thinking.

The majority of respondents stated that their JD courses addressed most of the skills required in the AQF descriptors, and provided clear examples of how they developed and assessed these skills. These included participating in mooting to develop creativity and flexibility and working on research tasks that developed analytical and problem-solving skills. They also related expectations in their courses that students would exercise rigorous and independent thinking. However, many interviewees stated that, while the JD met these skills, it was only to the same extent as the LLB.

The main area in which respondents conceded that their course was deficient was ‘mastery or advanced knowledge’.

By necessity, JDs and LLBs share substantial topic content. Both curriculums must be designed around a set of core subjects that cover the compulsory areas of knowledge for admission to legal practice, known as ‘the Priestley 11’. It is clearly more cost-effective for law schools to place JD students in the same classes as LLB students, particularly for these core subjects. However, it is this practice that has particularly raised concerns about academic standards and whether masters students learning alongside their undergraduate counterparts are able to achieve postgraduate-level learning outcomes and, indeed, comply with AQF standards.

It was clear too that some program coordinators did not regard their program as a ‘real’ masters degree, although it was badged at postgraduate masters level.

To obtain some insight into the perspectives of employers, from October 2010 to January 2011 we interviewed 12 legal practitioners who were supervisors of JD graduates. All respondents also currently, or previously, supervised LLB graduates.

When asked whether the JD graduates they had employed possessed the skills, knowledge and abilities they expected, nine of the 12 employers answered this question in the affirmative.

The employers were also questioned as to whether the LLB graduates they had supervised had exhibited the expected knowledge, skills and abilities. All of the nine respondents who had answered in the affirmative about their JD graduates expressed the same views about their LLB graduates.

Several employers considered that JD graduates had a clearer focus in their work and a heightened ability to apply the law to real-life situations.

Some respondents spoke of the difficulties that some LLB graduates faced when required to apply the law to novel situations and to synthesise their legal advice into a succinct client advice letter.

Several employers spoke of the greater commitment of JD graduates to a legal career and the perception that they would be more stable employees.

When comparing the two cohorts, disappointment about research and writing skills was a common theme. For example, the employer who had been dissatisfied with the attributes of the three JD graduates she had employed reported that her three LLB graduates also exhibited poor research and writing skills.

Based on their experiences, seven of the employers interviewed indicated that they would have a general preference to employ a JD graduate over an LLB graduate, although two of these employers indicated this preference was only slight.

Another common theme, along with the mostly positive perceptions of JD graduates, was that the majority of employers could not attribute any higher level knowledge or skills to the qualification level of the employee.

To ensure compliance with the AQF, and quality and consistency in the higher education sector, the federal government has recently established the Tertiary Education Quality and Standards Agency (TEQSA) as a national regulatory agency. It will enforce a five-part Higher Education Standards Framework developed by a Higher Education Standards Panel, an independent body appointed by the relevant minister to develop standards in consultation with universities.

Significantly for the JD, a third form of masters degree has been added to the two existing qualification types at this level: the masters degree (research) and the masters degree (coursework). This third masters qualification is termed a ‘Masters Degree (Extended)’. Its purpose is ‘to qualify individuals who apply an advanced body of knowledge in a range of contexts for professional practice and as a pathway for further learning’. The AQF now specifically states that the title ‘Juris Doctor’ can be used for a ‘Masters Degree (Extended)’ qualification.

Learning outcomes at level 9 have been articulated, placing them at a significantly higher level than the level 7 learning outcomes required at bachelor’s level. For example, LLB graduates are required to ‘have broad and coherent knowledge and skills for professional work and/or further learning’. In contrast, graduates of a JD ‘will have specialised knowledge and skills for research and/or professional practice and/or further learning’.

The requirement that a JD include ‘a significant proportion of practice-related learning’ may potentially have resource and logistical implications for law schools. This issue will depend on whether ‘practice-related learning’ is interpreted to require that students are provided with work-integrated learning opportunities, as this can be resource-intensive. In the alternative, we argue that ‘practice-related learning’ could be interpreted as being satisfied by the participation of students in activities that simulate the work that they will perform in legal practice, such as through problem-based learning, mooting and role-play activities related to legal interviewing, negotiation and mediation.

Our research findings, although subject to obvious limitations, reveal that among our sample there were positive perceptions of JD graduates in the marketplace and that employers were enthusiastic and sometimes overtly favoured JD over LLB graduates. However, the preference for JD graduates was marginal, and overall our employers attributed the higher-level performance of JD graduates to their mature age and work and life experience, rather than to the specific knowledge and skills acquired during their law course.

Depending upon their geographic region, universities may conclude that significant work remains to be undertaken to persuade the student market that the quality of training and their potential career prospects will be so enhanced as to justify the higher costs associated with a full fee-paying JD. Equity implications must also be considered, particularly if the institution in question is considering entirely replacing its undergraduate with a postgraduate course.

It is clear that JD course coordinators will need to review their course and subject learning outcomes to ensure that they address the level 9, ‘Masters Degree (Extended)’, requirements. They will also have to determine whether these academic standards can be adhered to if JD students are being placed in the same classes as undergraduates.