Assessing the true academic capacity of law students ... Consequences for professional employment ... Variations in methods of marking ... John Eldridge and Rebecca McEwen examine how best to achieve fairness and consistency
Law graduates: results fed into web-based application portals
ANYONE familiar with the modern law school will have encountered what is euphemistically termed "assessment responsiveness".
This phenomenon - the source of much exasperation for academics - consists of a seemingly single-minded focus on student assessment.
Less frequently acknowledged is the fact that this cynicism is well founded.
The immense growth in the number of law graduates has compelled employers to have ever-greater recourse to academic results as a means of discriminating between the overwhelming number of applicants which junior-level vacancies attract.
Applicants for summer clerkships at large commercial firms and branches of the public service are now routinely asked to input their academic results into web-based application portals, whereupon algorithms whittle vast applicant pools down to more manageable sizes.
Students whose results fall foul of the formulae find their applications relegated to the rejection pile often before they are even read.
There has always been a nexus between academic results and professional opportunities. Yet the reality of the Australian legal employment market for much of the twentieth century was such that even graduates with mediocre academic results could be assured of a place in the profession.
It is only in the relatively recent past that the number of graduates leaving Australian law schools each year has grown to eclipse the profession's need for junior lawyers.
The result is that for a student completing their studies today, the difference between a first and second class degree might well be the difference between the attainment of a legal graduate position and relegation to the growing number unable to find employment within the profession.
Though many are successful in securing employment outside the legal profession - and it must be remembered that not all law students harbour intentions of practising law - the new realities of the legal job market have heightened students' interests in achieving strong academic results.
These developments have ramifications for the processes by which results are determined.
If students' grades are to have a direct and significant impact on their professional prospects, it is more important than ever that the mechanisms by which they are determined are rigorous, fair, and consistent.
It is startling, then, that despite the large and growing body of literature on the subject of legal education, and in particular the significant range of work concerning assessment, there has been almost no exploration of the different ways in which academics mark students' assessment.
Indeed, even a cursory canvassing of opinion on this topic reveals that there exist extraordinarily disparate approaches to marking, and strongly held views as to the comparative merits of each approach.
Some academics insist on the use of rubrics or formulae to guide in the marking process. These sometimes identify a range of key issues or criteria and assign to each a fixed number of marks.
Others simply direct the marker's attention to a range of considerations and invite a qualitative assessment in respect of each one, as an anterior step in arriving at a concluded assessment of the merit of the work as a whole.
Proponents of rubrics and formulae often suggest that these tools have the dual effect of promoting consistency between papers and providing a means of demonstrating to students that results have been arrived at by way of a clear process rather than through intuitive synthesis.
Others reject these approaches, contending that the evaluation of the merit of a piece of legal writing is a task that calls for the exercise of a holistic and impressionistic judgment, and that attempts to craft a procedure or formula to supplant this judgment are fundamentally misconceived.
Still, there are academics who aver that to use these tools is to adopt a framework that privileges preconceived notions of what constitutes "good" work, with the result that creative and unorthodox approaches are unfairly disadvantaged.
It may well be that there is no approach that is always and everywhere the preferable one.
Perhaps the proper method for the assessment of legal work turns on the type of work being assessed, or the experience or proclivities of the examiner. It is equally possible that a rigorous examination of these competing approaches would reveal that some ought to be favoured or eschewed.
At the very least, a thorough exploration of the strengths and disadvantages of each school of thought - which should as a matter of course involve engagement with students' preferences and perceptions - would empower academics to make more informed choices when opting for one approach over another.
The heightened importance of academic results may also have implications for the types of assessment which law schools employ.
It is a basic tenet of procedural fairness that individuals should have the opportunity to seek a review of the correctness of a decision that seriously impacts their interests.
Almost all law schools have mechanisms in place which seek to correct errors and inconsistencies on the part of examiners.
Some mechanisms are proactive, mandating the double-marking of assessment that has been awarded a low result.
Others merely provide an avenue for the correction of error which can be taken up at the election of aggrieved students.
Difficulties can arise where the nature of the assessment task makes the conduct of a review difficult or impossible. Where, for instance, results are arrived at partly on the basis of teachers' assessments of the quality of class participation over the duration of a subject - as is common at many Australian law schools - there will often be no meaningful way of conducting an independent review of the examiner's assessment.
Whether the increasing importance of academic results ought to incline law schools to disfavour such modes of assessment, or to modify them such that they are reviewable, are questions which merit serious exploration.
The question of how best to promote rigour, fairness, and consistency in assessment is likely to provoke disagreement. However, if law schools are to respond to the new reality in which students find themselves, it is a question which cannot continue to be passed over in silence.
John Eldridge is a PhD candidate at the University of Adelaide. Rebecca McEwan is a law graduate from the University of Adelaide and is about to embark on a PhD in law