How Can Legal Education Speak to the Discovery-enriched Curriculum?

Introduction

City University of Hong Kong’s (CityU) Discovery-enriched Curriculum (DEC) is a pedagogical approach involving discovery, innovation, and creativity. ² With its focus on invention and experimentation, this approach lends itself naturally to the artistic and science-based disciplines; yet with an open mind, it can also be implemented within the undergraduate curriculum in law.

In 2015, I was appointed as the DEC ‘Coordinator’ at the School of Law at CityU. Each and every college and school providing undergraduate education at CityU must have a staff member assigned to audit their course delivery in compliance with the DEC. It has become my responsibility to ensure that all law courses speak to this DEC framework and that each undergraduate law student has the opportunity to make at least one new discovery in the field, as required by CityU’s 2016–19 Academic Development Proposal. ³

Accordingly, this article discusses the DEC and its theoretical basis within the educational literature on discovery-based learning (DBL) and the undergraduate research movement, before moving on to suggest the ways and means by which the undergraduate law curriculum at CityU could be changed in order to implement DEC and equally as importantly the ways in which established law-teaching practices already fit within the DEC framework. To fully implement DEC within CityU’s Bachelor of Laws (LLB) curriculum, some changes to long-standing teaching practices and the list of core courses will be necessary, but perhaps fewer changes than a sceptic might first believe. Overall, DEC has the potential to become a model for other local and international law schools to follow in adopting inductive learning methods, if these are implemented in accordance with the results of existing pedagogical research.

Literature on ‘Discovery-based Learning’

DBL (or ‘discovery learning’) as a method of pedagogy has a long history. Although the DEC was only formally adopted at CityU from 2011, ⁴ DBL’s modern development can be traced back to the 1960s, and its popularity has waxed and waned since then.

Definitions of DBL include the following:

The active participation of the learner in the learning process…students construct knowledge based on new information and data collected by them in an explorative learning environment[.] ⁵

Discovery learning requires inductive processes, in which information and knowledge [are] generated from the experiments performed…. The skills necessary for the successful performance of this learning process are similar to scientific skills. ⁶

[T]he learner is not provided with the target information or conceptual understanding and must find it independently and with only the provided materials. ⁷

[T]he emphasis is on ‘process’ rather than product and engages the student exercising solution-finding/problem-solving skills in the process of ‘discovering or reinventing’ the content. ⁸

DBL, therefore, has a close relationship with other inductive forms of teaching and learning, such as active learning, ⁹ research-based learning, ¹⁰ generative learning, ¹¹ problem-based learning, ¹² enquiry-based learning ¹³ and experiential learning. ¹⁴ In fact, DBL as a broad category can encompass elements of all of these other models. ¹⁵ All are learner-centred methods emphasizing minimally guided instruction and allowing students to construct their own learning using a process of ‘induction’, ¹⁶ whereas traditional instruction at a university level follows a didactic, deductive process centred on the educator. ¹⁷ The scholar credited with popularizing DBL in the 1960s, American psychologist Professor Jerome Bruner, stated that students are more likely to commit concepts to memory if they have discovered them on their own, as opposed to being taught the principles directly. ¹⁸

Although there have since been numerous qualitative and anecdotal studies asserting the learning benefits of the discovery-based approach as opposed to more traditional methods such as direct knowledge transfer and rote learning, ¹⁹ the empirical literature on the topic is decidedly mixed. Mayer, ²⁰ Kirschner, Sweller and Clark, ²¹ Prince and Felder (2007) ²² and Alfieri, Brooks, Aldrich and Tenenbaum (2011) ²³ have recently questioned Bruner’s claims in light of empirical findings suggesting precisely the opposite: ‘unassisted’ attempts at discovery do not help students’ learning outcomes, because students experience ‘cognitive overload’. Learners frequently become lost and frustrated if they are left to discover the answers by themselves with no guidance at all from the educator.

Yet, in summarizing the main debates within this literature, the recent proponents and doubters of DBL essentially meet in the middle. More nuanced analyses suggest that ‘guided’ discovery is a superior pedagogical method for committing new concepts to memory, ²⁴ even if direct knowledge transfer (essentially lecturing) may be empirically superior to ‘unguided’ discovery. ²⁵ The implications are that for self-discovery to be effective as a learning strategy, students need a base level of knowledge, and then the teacher must provide some guidance on how to go about finding the knowledge or the solution to the problem as the student does so, ²⁶ taking into account students’ different learning needs and speeds. ²⁷ Corrective feedback is given afterwards. ²⁸

Be that as it may, the benefits of DBL as a form of pedagogy extend far beyond effective memorization and deep learning. Other claimed collateral benefits, albeit empirically unquantified, are as follows:

DBL allows students to feel as if they have greater ‘ownership’ over the knowledge than they would have gained didactically through their teachers anyway, potentially leading to greater self-confidence. ²⁹

Although DBL now forms the basis for all teaching at a number of smaller tertiary institutions in the USA and in Europe, ³⁴ the DEC was the first attempt at entrenching the practice into Hong Kong’s university system.

The Discovery-enriched Curriculum at CityU

To quote from CityU’s website, DEC involves:

Discovering knowledge that is new to:

the student, and

CityU teachers are making discovery/innovation/creativity a focus in their course delivery to provide a foundation and/or opportunity for every student to make his or her original discovery/discoveries. ³⁵

This means two things: Using the DBL method described above as a constructivist pedagogical approach for students learning-established doctrine and also that during the duration of their degree, each and every student, no matter what their field of study, should be given the opportunity to make a ‘discovery’ new to their field. ³⁶ Professor Roger Brownsword equates the distinction between a ‘mere discovery’ and an ‘invention’ in the law of intellectual property. ³⁷ Accordingly, one way of thinking about CityU’s DEC as a pedagogical system is that the first limb provides the skills to facilitate the second limb. If students master the methodology of discovering new knowledge for themselves (even if it is already a well-established doctrine), then they will be in a good position to contribute to the growth of the field itself later in their degree and during their future careers. Using Brownsword’s analogy, students develop the ‘skills’ to create new intellectual property before they make an original invention.

From its inception in the 2012–15 Academic Development Proposal, ³⁸ the university administration has considered DEC the central organizing principle for pedagogy at CityU across all disciplines. ³⁹ Although DEC was first brought to CityU by the now retiring Provost, Professor Arthur Ellis, as a result of prior work with his colleagues at the US National Science Foundation and the University of California, San Diego, ⁴⁰ it appears that DEC is here to stay. Its retention is confirmed within the new 2016–19 Academic Development Proposal, with the latter plan recently having been approved by the Hong Kong Government’s University Grants Committee. ⁴¹

Not only have inductive learning theories already been implemented into CityU courses in all disciplines under the 2012–15 proposal ⁴² but now through this most recent Academic Development Proposal, CityU’s Office of the Provost (with the Hong Kong Government’s backing) also seeks to guarantee that each and every student, no matter what his or her field of study, will be presented with an opportunity to make a new discovery in his or her field during the course of the degree. ⁴³ This second stage of implementation (entitled ‘DEC 2.0’) takes the DEC far beyond delivering changes in teaching and learning methods and into the undergraduate research movement.

In implementing DEC 2.0, CityU’s plans closely resemble the findings of the Boyer Commission on Educating Undergraduates in the Research University, which published an influential report in the USA in 1998 urging exactly that all students should have the opportunity to contribute to new knowledge by the end of their Bachelor’s degree ⁴⁴ (although in the USA, law is a graduate, professional degree). In the USA, the Boyer Commission report served as the catalyst for growth in the ‘undergraduate research movement’, ⁴⁵ with the purported benefits of involving undergraduates in research production comprising the following:

Student researchers acquire knowledge actively rather than passively, ⁴⁶ as undergraduate research is, after all, a form of DBL.

DEC’s benefits, both as a form of pedagogy and as undergraduate research, are unequivocal. However, practical dilemmas are bound to arise when trying to implement a common pedagogical system across a wide range of academic disciplines. During the remainder of this article, I explore the potential problems and solutions in implementing DEC within the undergraduate law curriculum, with CityU’s LLB degree as a focal point.

DEC and the Law Curriculum

At CityU’s School of Law, the pressing questions are: How do we ‘fit’ legal education within the DEC framework? Is it even possible? If the School of Law is not to be the odd one out, then it is important to find a way to do so. With regard to DEC’s first limb, the academic literature on DBL in legal education is scarce, with DBL in law schools only being mentioned briefly in a few journal articles, mostly dealing with law as a graduate professional discipline in the USA. ⁵⁶ Moreover, the academic literature on the ‘implementation’ of DBL in the legal field is almost non-existent. This is a symptom of what Healey labels the ‘wide gaps’ in the literature on the teaching–research nexus, with most of this literature being generic, and missing a specific disciplinary focus. ⁵⁷

However, this does not mean that DBL is irrelevant to studying law at an undergraduate level. As Professor Elizabeth Adamo Usman has observed regarding US law schools’ implementation of an almost identical pedagogical approach called ‘generative learning’, ‘any debate over the use of these models should center on when and how to best employ these models, rather than whether to use generative learning at all’. ⁵⁸

If we take a layperson’s interpretation of CityU’s first DEC limb (discovering knowledge that is new to the student), then arguably this is something our students are already doing, something that law schools have ‘always’ facilitated. ⁵⁹ Within its plain English definition, the word ‘discovery’ is just a synonym for learning new things. Brownsword, in a commissioned paper written for CityU’s School of Law on the possibilities for implementing DEC, gives the analogy of the declaratory theory of judicial decision-making, namely judges ‘discovering’ the law that has always been there, albeit in the background, waiting to be discovered. ⁶⁰

However, as with the declaratory theory being discredited by modern common law jurists, ⁶¹ this is not the full extent of CityU’s plans for DEC. Based on the theoretical literature I have just mentioned, learning by being lectured at is not the most efficient way of ‘discovering’ settled legal doctrine. The more active a role that a student plays in the learning process, the more efficient he/she becomes from a pedagogical point of view (up to certain entirely unstructured limits, mentioned above). Brownsword describes an expanding continuum of discovery such that at the most basic level, students ‘discover’ settled legal doctrine when told what it is by their tutors, but the student’s role here is very passive. Even better is where students ‘discover’ legal doctrine through legal research by ‘finding’ the law. However, best is where a student discovers, to the surprise and novelty of everybody else, that a new legal doctrine exists or that an existing doctrine should be modified. Brownsword suggests this as the optimum mode of ‘discovery’. ⁶²

With his three-part typology of DBL in the legal context, Brownsword effectively mirrors CityU’s objectives for DEC implementation across the wider university. Students should not expect didactic instruction and should instead play an active role in ‘discovering’ existing doctrines, and these efforts must be appropriately supported and channelled by their teachers. Moreover, students should eventually expand their discoveries beyond established knowledge to push the limits of their field.

Taking Brownsword’s typology as a baseline, two questions still remain: What specific teaching techniques and course content facilitate DBL in the LLB? Moreover, how can we guarantee that ‘every’ law student, and not merely the most talented and self-motivated ones, have the opportunity to take the law in a new direction? As this article’s following two sections demonstrate, in some cases, we have already answered those questions, whereas in other cases, law lecturers will also need to be equally innovative in reforming their course syllabi and delivery.

Existing DEC-compliant Pedagogy in the Law School

Although it may come as a surprise, what my time as a DEC coordinator has taught me is that only minor tweaks to the existing system are required in order to comply with the Office of the Provost’s plans for DEC, especially with the scheme’s first limb. As far as law is concerned, DEC is not revolutionary. The question to ask is not ‘how can legal education speak to the DEC’, but rather ‘how can the DEC speak to legal education’. For the most part, as legal educators, we are already speaking to the DEC through our teaching methods. Although not all courses can realistically allow students to generate new knowledge within the field, there is not a single course taught in a law school where DBL techniques cannot be implemented.

To fulfil the first limb of DEC, relating to pedagogy, legal educators can point to or begin to adopt a number of different activities and approaches in teaching- and learning-established legal doctrine. A few examples are presented below, divided into three groups. First are activities requiring legal principles to be distilled from case law:

Case outlining, which is the most basic and overlooked example, as the student distils a principle of law from a judicial decision, rather than being told what it is directly by the lecturer. ⁶³

Second are activities and modules involving problem-solving through legal research, employing both primary and secondary sources:

Problem-based learning in groups, ⁶⁶ after the teacher first takes students through ‘worked examples or partially complete examples’. ⁶⁷ Importantly, standard ‘fact-pattern’ problems in tutorials cannot truly be classified as problem-based learning, as they follow prior didactic instruction on legal doctrine. Fact-pattern problems are a deductive, rather than an inductive, approach.

Third and finally come active learning assessments whereby the legal educator hands over control of a traditional teaching activity to students. Again, students engage in legal research using primary and secondary materials to discover the relevant law and complete the task. These approaches include:

The teacher allowing students to introduce new topics to the class before a lecture or tutorial is given.

Other than possibly implementing capstone courses, which have featured prominently in the US liberal arts and sciences undergraduate degrees since the late 1980s ⁷⁵ but are not yet as popular internationally, no radical change is needed to comply with the first limb of CityU’s DEC definition. CityU School of Law staff need simply to employ a few more of these more novel and exacting pedagogical methods within their course delivery. Tasks such as case outlining, mini-mooting and court visits are already very common as teaching and learning methods and, indeed, as assessable activities.

It is the second limb of DEC which has proved to be more difficult to implement. Here we move beyond discovering existing knowledge, beyond displaying the open and questioning attitude and the skills required for further discovery ⁷⁶ to the actual need to produce new knowledge: the need to provide evidence of DEC ‘output’. In implementing the second limb, law possesses a particular disadvantage vis-à-vis the sciences and the arts. While intellectual property is an elective subject at CityU as in other law schools, legal practice is not traditionally concerned with the ‘creation of’ intellectual property only in documenting such inventions, protecting the rights of their creators and resolving related disputes. Invention and innovation per se lend themselves far more naturally to the experimental and artistic disciplines. ⁷⁷

DEC’s Second Limb: Involving Undergraduates in Knowledge Production

At the end of 2015, I informed my first- and second-year LLB students about the Office of the Provost’s 2016 ‘My Own Discovery’ contest. This was a contest to judge and reward the best examples of DEC ‘output’: the leading examples of new knowledge created by undergraduates. The Office of the Provost informed me that the kinds of evidence that the committee judging the contest were looking for consisted of the following:

[C]reative art works, software, business plans, papers to be published, reports, exhibits, mobile apps, product prototypes, the emphasis [being] on student work that is original to the field, and [that] can be exhibited, published, patented etc, i.e. represents creation/development of intellectual property. ⁷⁸

In another example, the CityU College of Liberal Arts and Social Sciences lists the following kinds of DEC evidence on its website, although it is worth noting that the description below neglects any need to disseminate the work:

Literary writing, digital work, films, translations and original performances…Visualisation and media design products…Innovative professional and creative communication projects, cultural heritage projects, and social and political science projects…Articles, proposals and reports of rigorous research…New language-learning websites and software, promotional materials and interactive social media platforms. ⁷⁹

Unfortunately, most law students are not going to design an app, register a patent or complete a masterpiece of art or music by the time they finish their degrees. If they do, then they probably will not be using their legal knowledge, not that legal educators should discourage this. However, from the above lists, the two obvious options for law students are research papers and reports, ⁸⁰ whether originating in an academic or an experiential setting. Written contributions expanding the field that students can author or at the very minimum contribute to include the following 12 ideas, set out in three groups, some of which are new and some of which have been previously adopted by CityU staff and staff at other institutions in Hong Kong.

The first set of potential DEC outputs comprises pieces of doctrinal or empirical legal research primarily authored for an academic or student audience:

Law review articles and conference papers, whether originating as coursework essays and dissertations or not. ⁸¹

Evidently, there are plenty of opportunities for undergraduate student research in Hong Kong. However, one of the main challenges is to integrate these ideas into the core curriculum itself, rather than relying on students taking them on as co-curricular or extra-curricular activities. In bringing the DEC to CityU, one of the key philosophies of Professor Arthur Ellis was that boundary-pushing student scholarship was not just to be taken on as a co-curricular or extra-curricular activity, rather it should be brought into the core curriculum. ⁹⁵ Under the university’s 2016–19 Academic Development Proposal, a key performance indicator has become not whether the opportunity is available to students if they choose certain electives or follow certain extra-curricular interests but whether ‘all undergraduate programmes [have] incorporate[d] at least one DEC project into their programme design by 2016’. ⁹⁶ This means that, unlike the case for DEC as a method of pedagogy, to implement DEC’s second component, CityU’s law curriculum may have to be changed in the future.

Broadly speaking, there appear to be two solutions: (a) to try to incorporate these kinds of outputs into compulsory core courses or (b) to make particular ‘DEC friendly’ courses compulsory in undergraduate education. For the former option, the traditional approach in setting discussion and writing tasks involving law reform, policy and cutting-edge academic research is insufficient by itself. Real DEC ‘output’ should be accessible to the outside world, ⁹⁷ whether that means within the greater university community (e.g., participation in the ‘My Own Discovery Contest’, with its annual physical and online showcase of entries) or amongst the general public (e.g., as a Law Reform Commission submission). Accordingly, one way to fully implement DEC’s second limb into the core curriculum would be to replace a traditional assessment method such as an essay, class presentation or an exam with a DEC-type submission, for example, those outputs numbered 1 to 9 above. While external publication may take longer than the duration of the course, within 6 to 12 months students could at least submit an assessable first draft of the document.

The second approach involves identifying existing modules that already mandate the production of DEC ‘output’ and making one or more of those modules compulsory in undergraduate education. Although such courses will vary from institution to institution, within CityU’s School of Law, relevant DEC-friendly courses currently available on a non-compulsory, elective basis are:

LW4635 Independent Research, ⁹⁸ requiring a 10,000 words research dissertation written over two semesters or during a summer abroad. However, even if this course is made compulsory, further thought must be given to the means by which the research output is exhibited to the student’s peers and to the public. ⁹⁹

Although the Legal Placement elective is currently chosen by most LLB students during the summer semester or during the regular teaching term, enrolment is low within the other two courses, with only a small fraction of LLB students participating in recent years. For the City University Law Review course, this is borne of necessity, as only a handful of LLB student editors can be selected each year. However, for Independent Research, the low enrolment witnessed comes down to student choice, allied with a shortage of appropriate supervisors for popular topics. Low enrolment within the latter course demonstrates starkly the effect of failing to make undergraduate-research courses compulsory within the curriculum. ¹⁰² Given the choice, only the most-daring and self-motivated students can be expected to tackle new legal problems or old legal issues in novel ways that expand the field.

So far, there has been resistance to the proposal to make any or all of these courses compulsory, as one would expect for any major changes to the curriculum. Practical concerns over additional demands on staff time (particularly in supervising Independent Research students) and the number of available work experience placements have thus far stymied attempts at curriculum reform. However, these are far from unique and insurmountable problems faced by CityU’s School of Law. ¹⁰³ As Jones, Barrow, Stephens and O’Hara acknowledge:

There is surely a tension to be resolved between the function of discovery and that of certification. It is incumbent on us as faculty to find an appropriate equilibrium between the idealistic and the expedient. ¹⁰⁴

Relevantly, Mooting (LW2665) ¹⁰⁵ attracts some controversy as to whether it should properly be categorized as a skills-based course or an outcome-based course for DEC purposes. ¹⁰⁶ As a compulsory course for first-year students, Mooting teaches important skills such as legal research, legal writing, case synthesis, critical thinking, oral argument, public speaking, teamwork and rebuttal. ¹⁰⁷ These skills can undoubtedly be put to use in expanding the legal field through practice or scholarship. Yet my own view remains that mooting does not directly contribute to the production of intellectual property or its equivalent: ¹⁰⁸ The written and oral arguments developed come in response to an entirely hypothetical situation, and they are not routinely published in an accessible public setting. ¹⁰⁹ Mooting may form a prestigious and worthwhile example of ‘simulation-based learning’ ¹¹⁰ on par with DBL pedagogy, but it is not exemplary DEC evidence.

Conclusion: Challenges and Expansion

Through the DEC framework, CityU as a whole provides a case study to follow for other institutions that seek to maximize their students’ learning efficiency, increase their critical thinking capacity, and provide them with transferrable skills for postgraduation employment, amongst other benefits. However, within CityU’s School of Law curriculum, unless we consider mooting as the production and dissemination of new knowledge, as School of Law’s DEC Coordinator I cannot yet claim that ‘all students will have a DEC project as part of their [4 year degree] programme’ by mid-2016 with the beginning of the university’s 2016–19 Academic Development Proposal. ¹¹¹ Possible means to address this shortcoming, as well as further examples of innovative pedagogical techniques rooted in the ‘discovery-based learning’ literature, have been put forward within this article. Once CityU students develop the attitude and skills to innovate using DBL, ¹¹² they should be presented with an opportunity to test these new-found virtues in a way which empowers them as undergraduate researchers, whether they are enrolled in science, arts or indeed law degrees.

Although it has not yet been designated as a key performance indicator for ‘DEC 2.0’, teachers in law and other disciplines at CityU should next begin to consider how ‘taught postgraduate programmes’ can also benefit from this new approach. ¹¹³ With legal education in Hong Kong split between LLB and Juris Doctor (JD) degrees (with in fact more incoming students each year in the latter programme at CityU), the present system of DEC implementation creates an odd incongruence between law as a first degree and law as a second degree. Both streams of students will end up competing for the same places in the Postgraduate Certificate in Laws (Hong Kong’s one-year practical legal training course) and in the employment market. Arguably, both groups of students should benefit from the DEC as they enter a fast-changing world where creativity and innovation are prized attributes for graduates. ¹¹⁴

While new pedagogical frameworks such as DEC are inevitably bound to ruffle feathers on the side of both staff and students, ¹¹⁵ and inductive methods can backfire if students are not provided with sufficient support throughout the discovery process, ¹¹⁶ the DEC has much to offer as a model for law schools in Hong Kong and abroad, whether law is taught as a first or a second degree. Pointing to the benefits of DBL and undergraduate research within the academic literature is an important first step towards creating long-lasting positive changes in teaching methods and to the curriculum.