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1 IMPROVING CURRICULUM THEORY AND DESIGN FOR TEACHING LAW TO NON-LAWYERS IN BUILT-ENVIRONMENT EDUCATION By Robert J. Morris 1 (Copyright 2007 by Robert J. Morris) In Press: for publication in the "Law in the Built Environment" special issue of Structural Survey, scheduled to appear as a double issue of the journ..

IMPROVING CURRICULUM THEORY AND DESIGN FOR

    TEACHING LAW TO NON-LAWYERS IN

    BUILT-ENVIRONMENT EDUCATION

     1By Robert J. Morris

    (Copyright 2007 by Robert J. Morris)

    In Press: for publication in the "Law in the Built Environment" special issue of Structural Survey, scheduled to appear as a double issue of the journal (issues 3 and 4 of volume 25) to be published in late summer of 2007.

    ABSTRACT

    Research Paper

    Purpose

    This article attempts in part to redress a deficiency in the hybrid” environment

    of teaching law to non-law students. Should the pedagogical approach be the

    same or different for non-law students as for law students, and in either case, at

    what points and to what degree? The research itself is far from exhaustive or

    complete.

    Design/Methodology/Approach

    The article reviews the existing literature and makes use of the author‟s

    practical experience teaching law to non-law university students in building and

    real estate.

     1 Assistant Professor, Hong Kong Polytechnic University, Department of Building and Real Estate (BRE); B.A. Chinese Language and Asian Studies (1972); MA Comparative Literature (Chinese-English) (1973); Juris Doctor (1980); Member of Utah and Hawaii state bar associations; Member Ninth Circuit Court of Appeals bar; PhD candidate, University of Hong Kong Faculty of Law (Chinese law); contact: bsaikane@inet.polyu.edu.hk; Web page: www.robertjmorris.net. Thanks to colleagues, Professor Andrew Noel Baldwin (Dean), Professor Francis K. W. Wong (Head), and Professor Martyn J. Hills, and the three anonymous reviewers, for insightful comments on earlier drafts of this paper. Portions of an earlier version of this paper, under the title, “Curriculum Design for Teaching Law to Non-Lawyers in Building Education

    and Research,” were presented at the International Conference on Building Education and Research (BEAR

    2006), 10-13 April 2006, Hong Kong, <www.bear2006.net/conference/>.

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Findings

    There are serious defects, and some progress, in both curriculum and methodology. The demand for teaching law in these contexts has outstripped the development of theory and practice to meet the pedagogical challenges of

    st Century. Nevertheless, both the literature and current programs the 21

    focusing on Hong Kong and other common-law jurisdictions reveal possible ways to improve the situation. Since “professional knowledge is resistant to any substantial restructuring,” departments must insist that change be made, consistent with the findings, if true change is desired. Among other things, the research thus far leads to a proposal regarding the need for greater attention to “preparing the ground” for the study of law by non-law students.

    Research Limitations/Practical Implications

    Although the article reports some quantitative research, it is not primarily an original case study but focuses instead on theory in methodology, practice, pedagogy, and application.

    Originality/Value

    The paper fills an identified gap in our theoretical knowledge of the subject and provides some ideas and suggestions for ways forward.

    KEY WORDS

    Curriculum design, curriculum theory, democracy, democratization, educatedness, education, flattening, generalists, graduateness, holistic, hybrid, law, language, non-lawyers, pedagogy, preparedness, preventive law, research-led, specialists, student-centered

    I.

    Introduction: Background, Findings, and Results

“If you have your why? for life, then you can get along with almost any how?

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     Friedrich Nietzsche (2000:6)

    Ignorantia juris non excusat. Ignorance of the law does not excuse.

     Common law maxim

    The findings from over three decades of published research in teaching law to non-law students in non-law programs (including inter alia building, real estate, business, the

    military (Estes et al. 2006), and related disciplines), primarily in the common-law world, are not encouraging (Hutchinson 2005; Skwarok 1995). Indeed, the findings are sometimes startling and depressing; they reveal many deficiencies, inconsistencies, and disagreements—particularly with regard to providing the “why” to students (Nietzsche‟s

    paradigm) and implementing “research-led education” (Freestone and Wood 2006; Leung,

    M et al. 2006) that involves both teachers and students (McLernon and Hughes (2005). The demand for teaching law in these contexts has outstripped the development of theory

    st Century. and practice to meet the pedagogical challenges of the 21

    As with law teaching in law schools generally (Morris 2004; Morris 2005), this special corner of legal pedagogy could and must do much better in both what is taught and the ways in which it is taught. This study therefore positions itself as a continuation of the author‟s past work (Morris 2004; Morris 2005) and a foreshadowing of further

    work and development. Because of the on-going discontent and ferment, not to mention the lack of consensus on what is to be done, there lies ahead an important job of work to make teaching methods and curricula conform to the best practices indicated in the research. Happily, there are some indications that things are changing for the better, but so far only incrementally so (Boston College Law Library; Chan and Wong 2005; Hargreaves 2004/05; Sidwell 2005, Siedel 2000). Because of an almost universal “undertow of concern” surrounding issues of modern education generally (Friedman 2006:301), there is a present need to “test out” the findings of this past research in light of

    educational needs and trends in the new century (Philips and Pugh 2002:50-53). Because old habits die hard, what is required of the faculty is what Goldsmith (1999:89) calls

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    “curricular courage.” Hopefully, the product will be not only a student who possesses the qualities and characteristics of “educatedness” and “graduateness” (Higher Education Quality Council (1995); Mohanan (n.d.); Ross (2001), but also a “preferredness” of

    programs and schools..

    In response to this background, a two-year multi-approach experiment in both undergraduate and postgraduate law classes at the Hong Kong Polytechnic University (Poly U), Department of Building and Real Estate (BRE), has been undertaken since Fall 2005 to test the findings of the literature and the proposals, mostly using experimentation in curriculum design and pedagogical methods. A small part of the experiment has involved brief questionnaires (see Appendix) which were administered to practicing professionals and well as to selected classes exiting BRE curriculum classes designated BRE 206 (Legal Context for Construction and Real Estate [CRE]), BRE 337 (Hong Kong Property Law), which are undergraduate classes, and BRE 544 (Principles and Practices of Law), BRE 546 (Mediation Training), BRE 547 (Construction Law Project), and BRE 548 (Dispute Resolution Project), which are postgraduate classes for practicing professionals. Each semester these account for about 400 students. Subjects taught in the BRE curriculum include engineering, surveying, property management, construction, design, planning, and related courses in mathematics, statistical analysis, and so on. The purpose of each questionnaire is not to produce a final statistical analysis (indeed, it could not do so in the present context), but to adduce a general sense of students‟ perceptions,

    to generate an ongoing Socratic discussion, and point to possible ways forward. In the case of practicing professionals, they were asked to render a personal impression of a counterfactual proposition. Responses to the questionnaires were not to be written but to be discussed in conversation with the instructor, and in that regard a total of 116 questionnaires were returned in as many interviews and discussions. This figure represents nearly 100% of the students enrolled in the classes the author personally taught. Of this total, 68 questionnaires were returned by undergraduate students, and 48 were returned by postgraduate students. A total of 16 questionnaires were returned from practicing professionals in Hong Kong. Both groups expressed the desire for more

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    instruction over more time in more subjects to be added to the curriculum. This study has as yet undertaken or produced no differential analysis to compare the student “product” of non-law programs with the “product” of regular law schools, nor the “product” of non-

    law programs associated with law schools and those not associated with law schools. These are more forensic and sophisticated questions that await further study.

    The author enjoys the opportunity to participate in the introductory survey law

    2, where innovation in teaching courses (BRE 206 and BRE 544) in the BRE at Poly U

    law to non-law students has been undertaken with a good measure of institutional support and resultant success (Chan and Wong 2005)even though Poly U itself has no law

    school. The BRE faculty has, for example, undertaken innovations in teaching interdisciplinary Alternative Dispute Resolution (ADR) on a continuously-assessed, team-taught basis where students take control of their education by researching real, present community issues and then presenting the research in an interactive seminar setting. It has also undertaken a program of Work-Integrated Education (WIE) in the context of outcome-based education (OBE) and criterion-referenced assessment (CRA).

    The research supports, and experience confirms, the conclusion that the best approach to teaching law for other disciplines, being as it is both legal education and not (Christudason 2006), must be a hybrid of methods and tactics (Bellah et al. 1996:300). The word “hybrid,” and not words like “mixture” or “combination,” is chosen carefully

    and on purpose, as the word suggests the combination of two or more things to create a new third that is better than its components and predecessorsan idea captured in the

    Chinese 結軌, a “joining of tracks” (Yang 2002:71,75). Practical classroom experiences

    (case studies) and Internal Research Strategy Exercises (IRSE) show that the remedies for the found deficiencies can be identified, discussed, applied, and taught (Morris 2005). The objective of this research was to discover what has been found and to discuss how the findings might be implemented in the new century, amid the processes of globalization and global “flattening” (Friedman 2006), and with particular regard to how

     2 Current programs and courses may be viewed at the Department‟s Web site: <www.bre.polyu.edu.hk>. The idea of a “preferred” (首選) university, with preferred programs and graduates, may be read there.

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    the findings of practice in Hong Kong and the findings elsewhere might inform each other. Among the implications for curriculum design are greater use of practica

    (primarily in small-group seminars and tutorials) in cross-disciplinary work, early insistence on more research and writing for publication, conducting and managing legal research (including e-learning), globalized thinking, intercultural experience, WIE, and preparation of the ground.

    Two problems that result from the still-hypothetical nature of legal study, at lest for most undergraduate students, are (a) a kind of “continuity amnesia” from subject to subject and semester to semester that results from (b) their inability as yet to see their studies in holistic, practical context. These concerns become especially salient for the study of law in any context if one aim of that study is to inculcate the values and practices of civics, democracy, and democratization by enacting them within the academy (Wong 2005; MacBeath and Moos 2004), and practicing “preventive law” and alternative dispute

    resolution (ADR) (Chan, E et al. 2005), especially where cultural norms and values differ in the emphases they place, for example, on contractual formality versus cooperation (Winn 1994; Luo 2000).

    These matters have great significance if one accepts the premise that all educated persons need some education, both foundational and continuing (Chan et al. 2002), in the law. Given the modern proliferation of laws (codes, ordinances, statues, rules, regulations), courts, and governmental involvement, it ought to be considered as negligence or malfeasance for any professional (physician, surveyor, pilot, author, movie star) to fail to inform himself of basic legal knowledge and to act accordingly, and doing so ought to raise at least a rebuttable presumption that in any legal dispute, such a person is the culpable party. In sum, ignorantia juris will be deemed to be willful and

    unreasonable for all persons for whom special education and training, experience, and official licensure are required, and from whom informed contributions to policy decisions are to be expected. More than ever before, ignorantia juris non excusat ought to be the

    professional rule.

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    I.

Problems, Aims, and Methods

    The initial catalyst for this research occurred when the writer encountered a single evaluation (not of himself) written by a former student of his university (not of himself) who had left both the university and his enrolled program for the reason, as he put it, of “the poor quality of teaching.” There was no explanation or qualification, no

    identification of the problems or the persons involved. Even so, the question was provocative in leading to a search as to why the teaching may have been “poor,” how it

    might be improved, and how the student‟s comment might fit into a pedagogical context

    (Ting et al. 2006). The complaint was not altogether uncommon or unlike similar complaints in higher education generally where research and publishing are rewarded more than pedagogical acumen (Bok 2003:88-89). That anonymous and unexplained evaluation became a defining moment—a kind of “hypothetical necessity” driving an

    investigation of how our pedagogy, at least in the law, might be improved. Indeed, the first question to be addressed was whether the problem lay in pedagogy at all, or whether the dissatisfaction was inherent within the subject and the situation irrespective of how the teaching was done.

    Writing within the context of legal pedagogy regarding construction-contract law and building education and research outside the law school, Stipanowich (1998) notes that scholarly treatment is spotty at best. The paucity of scholarship is mirrored by a

    lack of curricular emphasis,” as well as a “scholarly and pedagogical obliviousness” to the study, for example, of construction law and an appreciation of its importance. He states (pp. 496-97; emphasis added):

    “Unless the explanation is a perverse form of intellectual snobbery, it must

    be a pervading ignorance of the practical significance of and academic

    challenge presented by the field of construction lawor a reflection of the

    inherent complexity (real and perceived) of principle and practice in the

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    arena. Although today‟s attorneys and industry actors have much greater

    access to treatments of pertinent legal subjects than their predecessors, much

    more can be done to enhance the level of scholarly treatment and

    interdisciplinary discussion of legal rules.”

    The published research reveals that insofar as the discipline follows the model that has served lawyers so well (the traditional study of black-letter law and case law in the lecture-tutorial paradigm or Socratic Method with a single final essay-examination assessment), it is not serving well the needs of these “other program” students or

    equipping them for the functional roles of their respective industries. That system often fails to identify their difficulties, weaknesses, and needs. Indeed, the traditional system may no longer be serving even the law school well (Schwartz 2001). As Endeshaw (2002:42; emphasis added) concludes regarding his study: “[T]he confusion so starkly

    manifested among the respondents surrounding the applicability to new situations of the legal rules they had learnt suggest[s] that the current [traditional] approach deployed in

    陳伯璋 / the School must at least have been a contributory cause.” Change must be made (

    Chen P C 2005), but here is the rub: Lawyers, of course, must teach the law courses to the non-law students because no one else is qualified, but what pedagogical model is there other than that of the law school that produced those lawyer-teachers? How does the faculty unlearn or modify its learning of the very process that made it what it is, and then replace it with something different with which to teach others the same subject outside the law school? As Cownie (1999a:51) points out, there is the “well documented

    problem that professional knowledge is resistant to any substantial restructuring,” and

    this includes a downright anti-intellectualism about the pedagogical theory and philosophy of education and curriculum (Cownie 1999a:44-45; citing Feinman and Feldman (1985); Cownie 1999b; Bok 2003:26-27, 180). The balancing of doctrine, content, theory, practice, and emphasis outside the law school will be different from that within the law school, and it will require frequent adjustment (Skwarok 1995), but it is always necessary (Webb 1996).

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    Several things are clear about the (post)modern, post-WTO world and the project of education in that world. Most importantly, the old distinctions and barriers between “trade” school and “academic” school, as well as between training and education, have

    fallen. So also have the distinctions and barriers between “theoretical” knowledge and “applied” knowledge (Bok 2003). Cross-disciplinarity, if it means anything, means the disappearance of compartments, the “joining of the tracks.” The old paradigm of the

    university and its classrooms as a world apart from the “real world” where one may

    “retreat” to pursue abstract learning “for its own sake” has blurred if not disappeared. All

    of this is part of what Friedman (2006) has aptly termed “flattening.” Stated another way,

    If you always do what you always did, you will always get what you always got. Today‟s

    professionals no longer cede the knowledge and understanding of the law to the private preserve of the lawyers. Nor do they cede the responsibility for their education to others: “Tell me, I will forget; show me, I will remember; let me do it, I will understand.” The

    subject of “law” has thus become the discipline of “law you can use”—practical law, law

    in the trenches, applied law not only for would-be lawyers but also for that vast

    population of “non-lawyers in other professions who must nevertheless deal with law. Law is part of both the educational and the professional industry (Godonou 2003:15). It is no longer one of the “external drivers” for change but has become internal and endemic to change in the professions themselves. Nowhere is this more true than in those disciplines and cross-disciplines where law is taught to non-lawyers. For would-be lawyers, of course, there is the very real necessity at the end of the road: that of becoming a lawyer and being competent and responsible in the all the demands of practice. But these changes also bear substantial import for non-law-school students. As Bunni (2000:114-15; quoted in Chan, E, et al. (2005 n.2) notes (emphasis added) :

    “Standard forms of international construction contracts produce a second layer

    of legal principles through their standard forms of contract, which are

    superimposed on the applicable law of the contract between employer and

    contractor. It is difficult and unhelpful for anyone to be involved in the

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    resolution of disputes arising from such contracts unless the person is very

    familiar with, if not an expert in, the areas of these forms and the disputology

    incorporated in them.

    For the students on the non-lawyer track, however, the necessity for them to learn at least a modicum of law may not be so apparenteven if they are already aware that at

    sometime in their approaching professional lives they will almost certainly “be involved in the resolution of disputes arising from such contracts. It may be necessary, therefore,

    for the curriculum and its exponents to supply a kind of hypothetical necessityat least

    at first when the student may be asking, as one student wrote, “Why do I have to study

    this stuff? Can‟t I just hire a solicitor whenever the need arises? As a practicing architect,

    engineer, manager, etc., I fully expect to have a whole bevy of barristers on retainer. The will have their bailiwick; I will have mine. Why should the twain meet? The difficulty

    with this situation is that not all students, as Bok (2003:161, 163, 179) points out, are fully in a position to know what they need. Most students who returned the subject questionnaires and participated in the related discussions in this study focused their strongest views on question 3 (“If I could make any changes to the mandatory

    programme of law study, the changes would be—“). Some who answered perfunctorily

    wrote such things as “no examination” and “less material” or “less workload.” The

    majority, perhaps counterintuitively, wanted more detailed illustrations, examples, and case studies (perhaps for the vivid exemplary or story content of case reports, which are more accessible to new learners than “black-letter law”). As every legal practitioner

    knows, many professionals (and indeed non-professionals) are “out there swimming

    among the crocodiles” and do not know itwould not recognize the danger if it

    approached them. Legal problems are not always self-evident, and recognizing them requires specialist training. One may not always know when it is time to call in the solicitor. Resistance to such training does not make the dangers disappear. Such inertia may be partly overcome by using real-life stories that demonstrate the immediacy of

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