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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):