Reassessing band funding for law: a discussion paper

This paper by Roger Burridge (then UKCLE Director) was presented to CHULS (the Committee of Heads of University Law Schools) at their meeting on 17 September 2003. The issue of rebanding is now being taken forward by CHULS. (An abbreviated version of this paper appeared in the Autumn 2003 issue of Directions.)

Summary of argument

Law as a discipline involves learning outcomes that require more resources than other humanities and social science subjects in the lowest level of cost of teaching allocation adopted by HEFCE.

• the funding of learning and teaching in UK higher education materials has historically failed to reflect the additional resources necessary for teaching methods peculiar to law
• further legal education reform will be obstructed by a combination of the historic deficit in legal education funding and the higher costs of experiential and problem based learning methods grounded in the practical context of law

Law schools, the professions, practitioners and institutions should urge HEFCE to elevate band funding for law from price group D to group C.

Introduction

HEFCE is currently reviewing the funding method for teaching in higher education (HE). The consultation covers many aspects of HE funding, including financing foundation degrees, widening access and improving retention. Important though they are, these issues are largely of institutional rather than subject related concern.

The consultation paper begins with a review of band funding – the methodology for allocating HEFCE funds weighted to take account of variations in teaching costs between disciplines. Band funding determines the amount of money every HE institution receives based upon a sum per FTE student admitted to an undergraduate programme. It is proposed that as from 2004-05 each subject will be allocated funds according to the following bands:

Price Group	Description	Cost Weight	Current Base Price Per Student (2002-03)
A	clinical subjects – medicine, dentistry and veterinary science	4	£12,915
B1	high cost laboratory-based science, engineering and technology	2	£5,740
B2	other laboratory-based science, engineering and technology	1.6	n/a
C	intermediate cost subjects with a studio, laboratory or fieldwork element	1.3	£4,305
D	all other subjects (including law)	1	£2,870

Source: HEFCE Guide 02/18 and Consultation 2003/42

Law is in band D, although in the consultation document it is included in the overall cost centre (29) for social studies. The consultation proposes splitting band B, thereby releasing additional money for distribution amongst lower bands. Law would be an overall winner, since the base rate for all band D subjects would increase by 9.4%. The consultation document, to which responses are due by 14 November 2003, seeks views on all aspects of its proposals. It therefore provides a timely opportunity to argue for the separate banding of law studies and for an increase from band D to band C.

The case

Law is one of the most popular subjects amongst students and university managers alike, the latter because it is perceived as a relatively cheap course to deliver. This discussion paper argues that law has been historically under-funded and that the deficit is adversely affecting the capacity of institutions to deliver effective undergraduate programmes. The case for band change can be made at two levels. Firstly, the funding mechanism has never reflected the true costs of legal study (the historic deficit). Legal method involves iterative analysis of cases and statutes (laboratory exercises) and the constant acquisition and storage of rules and judgements (raw materials). Historic processes of costing learning and teaching for law have wrongly assumed that the use of legal texts is the same as in humanities and social studies. Secondly, best practices such as experiential and clinical learning methods, which research has shown to be most effective in law, are thwarted because of the additional costs of lower staff:student ratios, scarcity of appropriate expertise, expense of practical materials and the lack of specialist facilities.

The historic deficit

The case for increased funding for law (band D to band C) is based upon the distinctive nature of legal method, which involves the following additional costs, peculiar to law:

1. providing and updating core data in paper form on a regular basis (cases, statutes and delegated materials)
2. providing facilities for the storage and retrieval of such core data
3. providing access to a variety of electronic databases under licence
4. iterative applications of legal rules to range of fact patterns
5. providing dedicated environments for the investigation and learning of legal expertise and forensic interaction and for the development of authentic and realistic problem-based learning scenarios, virtual learning environments (VLEs) and experiential learning situations

The different price groups are based upon the perceived level of resource necessary for the delivery of each subject. The lowest band (D), which applies to law, assumes that subjects are “taught wholly in lecture theatres and seminar rooms”. The case for re-banding must therefore be based upon the learning and teaching resources necessary for the effective delivery of the undergraduate programme.

The basis of the discipline of law is the texts – cases and statutes – in which it is to be found. Irrespective of the requirements of the legal professions for a qualifying law degree, there is a core of legal knowledge which is generally accepted in the UK to provide the basis for an undergraduate programme. The reading and analysis of legal cases and statutes are the core activities on which the study of law is founded. Law schools are required to purchase, store, update and supply mass access to legal information that renders the study of law akin to the laboratory and workshop methods prevalent in languages, psychology, geography, archaeology, mathematics and education (all proposed band C subjects).

The plant and raw materials of legal study

The raw materials of law are constantly expanding. The common law notion of precedent was founded upon cumulative authorities in England and Wales. Other common law jurisdictions have long been relevant, but in the last 50 years the need to access other sources has become pressing. The growth of law includes new subdisciplines and the fragmentation of established topics, the regulation of emergent technologies, processes and activities, the development of European law, its directives and decisions, the expansion of international treaties and human rights discourse and the increasing significance of civil law systems and sharia law. The sheer volume of legal authority has arguably outpaced the other subjects with which law has historically been associated in HEFCE’s approach to cost centres.

The quantity of legal raw material is also related to ensuring adequate access for students in a variety of formats and in sufficient quantities. The additional costs involve the purchase of sufficient variety and copies of law reports. Internet-based law reports and statutes are now available from two main database providers – Lexis and Westlaw – and are available for law schools to purchase on licence for their students. Annual subscription is beyond the means of individual students. The continuous development of law in statutes and fresh decisions of the courts, and the consequent commentaries and analysis, give rise to increasing numbers of collections of law reports and specialist journals. It is difficult to quantify the additional costs of purchasing the core knowledge of law, as opposed to its commentaries, but the number of periodicals, including law reports provides some indication.

The 2001-02 SLS/BIALL survey of academic law libraries (downloadable from Legal Information Management vol 3 no 2) revealed a large gap between expenditure per law student on law materials between typical ‘old’ and ‘new’ universities. The median for old universities was £148; for new universities it was £101. There is little comparative analysis between different disciplines, however but it seems clear that the law library has a more significant role in legal study than other disciplines. There is scope for more analysis of comparative costs of legal raw materials. The estimated costs of law reports and periodicals (including licences for electronic databases) is for a medium sized law school in the region of £150 per FTE undergraduate student. (This estimate is arrived at by aggregating the cost of law reports and journals (ie excluding monographs and text books) and including the costs for licensed usage of electronic databases (LEXIS and Westlaw) at the University of Warwick library in 2002-03. The SLS/BIALL survey confirms this for older universities, however that survey did not include the costs of electronic databases.)

The purchase of such work attracts the additional costs of storage or retrieval. The constant paper-based publication of legislation and tribunal decisions involves the additional costs of updating looseleafed volumes, managing access (labelling, record entry etc) and the regular expansion of shelving. (Law of course additionally requires its expository texts and discursive critiques.) Access to electronic databases incurs the inevitable additional costs of mass provision for networked computer terminals and their maintenance. Whilst it is true that other humanities and social science subjects require access to the Internet and specific databases, their usage is as a tool of research rather than as a source of core knowledge. The frequency with which law students require access to law databases is believed to be far in excess of most other disciplines. Any readjustment in budgets to account for the excessive demands on library and database use for law is currently left to individual institutions.

The implications of this disciplinary distinctiveness have never really been accepted in central funding provision. The law library as a site of investigation and learning has invariably been understood as an adjunct to classroom instruction rather than a laboratory where law finding occurs.

Legal technique and laboratory practice

Whilst advanced legal analysis leads to extended and complex reasoning concerning the interpretation or relevance of any particular text, the basic sources of law in any given field are accepted. The process of discovering legal authority and identifying the elements of legal significance in them is akin to laboratory experiments. It is essentially a process in which all students must participate often repeating the same exercise as their peers. It is a process that requires basic supervision and guidance from experienced librarians, tutors or postgraduates. At present the process is taught at differing levels of intensity. It is widely reported by employers, teachers on vocational programmes and others (including in 2001 the Chairman of the Law Society’s Training Committee) that it is a technique that many graduates have not sufficiently mastered, although there is insufficient detailed analysis of the extent and frequency of legal research in law schools.

There seems to be little or no analysis of the cost of teaching legal method compared with other subjects, such as English or sociology. HEFCE’s recent analysis includes law in cost centre 29 (social studies) and separate statistics are not collected. There is clearly scope for a closer analysis of the distinctive costs of law teaching.

A strong case can be made for rebanding law based upon the historic misunderstanding of the costs of traditional legal study and its distinctive methods set out above. The strength of the argument is underlined by the previous efforts to have law placed in a higher band. A CHULS working party in 1983 (see ‘Law as an academic discipline’, SPTL Newsletter 1984, p10 (unconfirmed)) rehearsed many of the economic arguments cited in this paper. Their lobby on this occasion is reported to have achieved brief recognition of law’s claim to a higher funding band (Professor William Twining’s recollection). More recently CHULS approached HEFCE with similar claims. A study of the potential for collaboration between law libraries to ease the cost burden of multiple stocks evidently confirmed the difficulties of sharing resources (the CASE Project, which according to Professor Richard Card did not reveal any basis for collaboration between law libraries as resolving the pressure on library resources).

The case has thus far been made on the basis of persistent underfunding for which law schools have struggled to compensate. It rests on the need to equip all law graduates with the knowledge and abilities that the processes of democracy, justice and its administration require. There is at present widespread debate in some sectors of the legal education community concerning the structure and content of legal education in the UK. If legal scholarship is to develop further in the quest to equip undergraduates with an understanding of legal process, professional responsibility and the variety of practical roles involved in providing comprehensive and diverse access to justice, any reforms will only serve to emphasise the case for additional resources for the undergraduate programme.

The development of legal expertise and ethical practice

Whilst all disciplines are exploring programmes that utilise experiential, problem-based and reflective learning methods, law can lay claim to these being more significant to its study than most other disciplines. Experiential methods in law involve the following additional costs that law schools currently find too expensive to deliver:

1. interactive learning and coaching requires a lower staff:student ratio than traditional teaching methods
2. non-traditional methods that involve unusual supervision and assessment processes (placements, role plays, video evaluation etc)
3. securing or developing practical and specialist expertise to inform and assist the development of modules that place the study of law in a practical context
4. providing the space, equipment, administration and expert supervision necessary to deliver advanced clinical programmes

Since law is in essence a ‘doing’ discipline with strong professional connotations and much exposure in popular culture, the opportunities to develop effective role plays, case studies or simulations, are many. Whilst the lecture and seminar is still the preferred format for teaching, ‘best practice’ initiatives are increasing. More examples are prevented by the more intensive teaching demand, scarcity of appropriate spaces or lack of staff expertise. QAA reports have frequently acknowledged the strengths of experiential learning initiatives (for example Birmingham – interviewing, mooting). The Law benchmark statement “does not set any requirements about the study methods which students will adopt”, but recent scholarship has confirmed the superior effectiveness of experiential methods for deeper learning, problem solving, creative thinking and ethical understanding.

Ethics and lawyering

There has been frequent criticism of the lack of or inadequate attention paid to ethics and values in general in the law degree (Ormrod, Marre, ACLEC etc). Concepts of justice, the role of codes in professional practice, and the context within which law is implemented are not specifically required in the Law benchmark statement. Individual institutions are left to develop their own contextualised learning. Whilst the statement in its knowledge criteria requires only understanding of the “principal features of the legal system” and the ability of graduates “to explain the main legal institutions and procedures of that system” (text for employers, para 1), there is increasing acknowledgment of the importance of understanding professional codes. Concern exists that those who do enter the vocational stages arrive with little understanding of the responsibilities of lawyers to their clients, the court or society at large. Such appreciation extends beyond the narrow concerns of professional regulation, and experiential learning is associated with wider values inherent in law and for the development of students’ affective domain. The weight of research in law and other disciplines strongly emphasises the effectiveness of experiential methods (especially clinics) in explaining ethical concepts and in confronting students with the challenges that ethical issues give rise to.

Clinical learning

There is much evidence that clinical legal education in its various forms, including courses where students learn through interacting with ‘real’ clients, produces a deeper and more effective learning experience. The recent renewed interest in such programmes and the growth of pro bono and ‘street law’ initiatives provides a major opportunity to develop new approaches to law teaching throughout each stage of legal education. Such programmes require clinical level resources to be effective and to ensure that standards of delivery are sufficient to ensure a satisfactory experience for both client and student. Some law schools are already attempting to provide such learning methods, but are heavily constrained by the lack of resources and appropriate expertise. Clinical methodology in law is arguably capable of delivering many of the outcomes that undergraduate programmes cannot address. It is associated with the development of an holistic understanding of law and its functions, a deeper appreciation of ethical issues and a broader understanding of law’s practical contexts, such as enforcement, transaction fulfilment, litigation, policy development, regulatory implementation, adjudication and alternative dispute resolution.

Practical knowledge and professional scholarship

The growth of law and its increasingly international character has seen the emergence of new subjects and the fragmentation of others. Much of this development has been accomplished in legal practice and the work of the courts. Human rights litigation and the globalisation of legal, financial and commercial services have largely been practitioner led, accompanied by significant analysis and exposition from individual legal scholars. Institutions are increasingly required to reflect these interests in the curriculum. Such practical knowledge in the law school is scarce and at a premium. It carries cost implications in the texts and databases needed to service it. Practitioner texts are expensive and do not attract favourable academic prices. They rapidly become obsolete and need replacement. Looseleaf paper copies are common and require frequent updating. In practical legal research students require both paper and electronic resources, often side by side.

Discussion

The justifications above are primarily based upon the inadequacy of present funding arrangements for current learning methods for law. It is unrealistic to argue that other methods (for example experiential classes, street law and clinical programmes) justify a further band increase. The historic deficit explains why legal education reform (problem-based learning, widespread provision of clinical or pro bono experiences, the pervasive use of VLEs) is unaffordable within current funding arrangements, and further strengthens the case for rebanding.

The under-funding of legal education has serious and largely unacknowledged harmful effects on the administration of justice. Practitioners claim that graduates are insufficiently equipped for practice. The tendency to restrict undergraduate legal study to core knowledge results in less attention being paid in the curriculum to deep learning, basic (and transferable) legal skills and advanced fields of law being developed by practitioners.

The purpose of this paper is to revisit arguments that have been cogently and persuasively made before. The recent HEFCE consultation provides a further opportunity to obtain adequate funding for law students. Four questions deserve consideration from legal educators:

1. Is the case for rebanding of law sustainable?
2. What further evidence could be assembled to support the case?
3. Should law be treated as a separate cost centre for HEFCE funding purposes?
4. What steps should be taken to promote such a case?

Last Modified: 4 June 2010