Boundary Riding - The Web as Corral

Donna Buckingham
Senior Lecturer in Law
University of Otago
donna.buckingham@stonebow.otago.ac.nz
 

Delivered at the 2nd AustLII Conference on Computerisation of Law via the Internet , Australasian Legal Information Institute ( AustLII ), University of Technology,
Sydney, Australia, 21-23 July 1999.

Abstract

In mounting a legal web site or page, the ethic is often macro. The larger the site and the more transparent it is, in terms of providing access to other web resources, the more useful it will be perceived to be. In many cases, of course, that perception is entirely justified. For example, seamless electronic access to those primary and secondary sources of law, once so laboriously located through the conventional law library, is a highly desirable objective. Few would argue for a return to less democratic days.

But where does that leave those still committed to exploring the web as part of their teaching process but who are not 'providers' (builders of large primary information sites or members of multi-institutional computer assisted learning projects with integrated web links)? Individual effort can seem meaningless in light of the collaborative strength which is usually a necessary condition of such projects.

Is there a micro ethic which can sustain itself with some integrity in post-web teaching and can it be abstracted from the concept of the web itself? Not because the possibilities of web based learning are limited, but rather because they are precisely the opposite. That is the question this paper poses. It traces the planning of a 'closed' page where outsiders are welcome to explore, but explorers may not move outside. Let's call it boundary riding - or revisionist CAL for the more cynical.

This is a Conference Paper published on 29 October 1999.

Citation: Buckingham D, 'Boundary Riding - The Web as Corral', Conference Paper 1999 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/99-3/buck.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_3/austlii/buckingham/>

1. Introduction

It has been said that one year in 'web time' is about 14 in 'real time'. Maybe that is why this paper may, at times, exhibit a case of digital nostalgia. The question it poses is whether web based technology can have a micro life, indigenous to the institution which hosts it and as useful as the untrammeled boundaries of the entire digital domain.

A little pedigree may set the question in context. Not so long ago (in real time) this writer used to think about how computer technology could help in the teaching of law. First, it was a case of being entranced with the textual searching possibilities of computer assisted legal retrieval (CALR) systems and their ability to equalise access to law. A computer and a modem offered full text freedom and Boolean logic became the mantra of this newly liberated legal searcher. Then computers became more embedded in the university environment as a non specialised tool. This offered the chance to experiment with other aspects of their potential to bridge the gap between learner and the law. And so the writer, like many others, ventured into computer assisted learning (CAL). Here hypertext spelled a similar freedom: to attempt to present legal concepts in a non-linear way.

Then the web 'arrived'. That CALR and CAL would cross-fertilise seemed a natural expectation, because the web bore the twin features of free text searching and hypertext ability. It was the scale of distribution of this functionality which broke new bounds. Web pages now span a substantive legal domain within whose continuously expanding borders a traveller can personalise an itinerary. That such information was formerly held in semi-private repositories, where access was on a formal and physical basis, now seems almost quaint. While in 'real time' this was not so long ago, in 'web time' it seems an almost Dickensian stretch.

Where does that leave those still committed to exploring the computer as part of the teaching process but who are not providers of such substantive law sites? The erstwhile independent creator can reconcile themselves to status as simple consumer. That is an attractive option, because writing 'indigenous' (single institution) CAL material requires individual creative energy and risk which can seem out of pace with the pan ethic which drives the web. Alternatively a balance can be adopted between passive consumption and intrepid cottage industry. It lies in mixing the indigenous with the non-native: building a catalogue of routes to other sites (for example, linking course outlines or lecture text to external primary or secondary law sites).

Is there another option for the use of web based technology - one which serves process based learning in law?

Learning how to apply and interpret a statute is one example of process based learning. The introduction to legislation, its application and interpretation, is undertaken in the introductory law year at the University of Otago. The class numbers a maximum of 650 students, of which only 200 may proceed to complete the LLB. The legislation module of the course is taught over 10 weeks, with 2 hours of formal classes supported by a weekly tutorial programme. Entry to law school is regulated by two three hour closed book examinations conducted at the end of the academic year, assessing statutory and case analysis problem solving skills, together with a knowledge of legal history.

Competence in legislation is about learning how to analyse statutory provisions and to play out linguistic uncertainty when the facts are melded with the provision and a prediction of the legal outcome is attempted. This requires the ability to generate argument and counter-argument about the effect of choice for ambiguous words, having regard to the object of the legislation, the scheme of the provisions and the effect of the choice on the internal consistency of the statute or on the community.

Practising this process to acquire competence is grounded in 'thinking' the law which is given rather than 'knowing' (finding) law. Thus the need for further substantive legal information is not as compelling as the ability to assimilate the intellectual process itself. The comprehensiveness of the legal domain is secondary in importance to how the student controls and manipulates what lies within its given bounds. It is this deep structure principle of the legislation module which the writer seeks to try and transfer to the web.

2. Thinking about thinking on the web

Teachers increasingly operate in a climate where a real premium is placed on the use of pedagogical principle in preparing for, executing and reflecting upon the teaching and learning process. A decade of teaching in the legislation module provides its own riches in terms of acquiring a visceral sense of the learning journey students must undertake. But what is expected to occur can only be analysed in the context of formal summative assessment. This makes for a Procrustean bed, for it simply quantifies how well individual students demonstrate adherence to the deep structure principle of 'thinking' the law. Ascribing a value to the difference in degree to which each student succeeds at internalising the process does not provide information on how the process was assimilated.

Teaching evaluations are equally blunt instruments for such investigation, focusing largely on the attributes of the teacher rather than the learning outcome. The remaining option is to administer individual learning surveys. This is daunting (given a cohort of more than 600), if not ultimately self-defeating. Most students will have little knowledge of their individual learning style or strategies.

If students have only a nascent understanding, a personal anecdote may illustrate the point that their teachers share the same deficit. Until 1999, the materials for the legislation module were distributed as a set of loose pages. Most students bound these, transforming the set into an A4 book. It was neat, tidy, hard to misplace because of its size - and totally anonymous. Binding made the material belong to the writer rather than the user. That often meant the student did not annotate or note them up otherwise be active within the bounds of the 'book'.

In 1999 these course materials were hole punched before distribution. In addition a one third right hand margin headed 'Your Notes' ran down every page. These changes hardly broke new bounds in terms of innovative teaching. Yet the personalised white space, together with the ability to easily place the materials in a study folder has generated a quite different response. Students no longer bind the materials. Instead they interleave their lecture and private study notes with the commentary, legislation, and cases the materials provide. They are also beginning to own the material by writing summaries or queries in the white space.

Students repeating the course have particularly commented on the effect of these minor changes in physical format. The obligation the changes create (to own the materials more actively) has sensitised these students to the learning process. Of course, this is a highly motivated group. But it appears that first time students are also adopting the same practices without any awareness of the change in format. If such minor changes in the physical form of the present course book can enrich the learning process, then transferring this material to the digital domain has the potential to achieve a much larger range of affect.

To corral students within the existing teaching domain by building a closed web page offers a challenging but exciting opportunity to explore the match between student perceptions of their learning task and teacher driven outcomes - or at least to assess the distance between those two way points.

3. The project objectives

The project has three proposed stages: to make this electronic transference of the materials, to provide a hypertext structured preparation path into each module and to use the web's tracking ability as a diagnostic tool to explore how students respond.

3.1 Stage 1: Transference to the web

First, the page will represent the information the student must now deal with in a more or less serial fashion in hard copy. This is not intended to be a case of simple transference, leaving the student at the mercy of some endless scroll bar. Value adding to the learning experience can begin at the broadest level of generality.

For example, the web environment can offer effortless links between the course objectives and the places where those intended learning outcomes are rehearsed in the materials. The course materials contain a comprehensive index and an 'itinerary' (mini descriptions of the content of each lecture module). These are intended to serve as a course overview and provide guidance for review notes. At the moment it is unlikely that many students use these tools in the way they were intended to provide help. The ability to provide hot links (from these 'concept maps' to the particular class in which a concept is introduced or reinforced) will make the function of those parts of the materials overt. Equally, the ability to move with ease to a running glossary is another benefit of the transference of the material into the web environment.

Quite conventionally, the page will also host a raft of administrative information about the course - how to use the library, how to apply for admission to law school, the effect of a criminal conviction on admission to the bar, how to seek advice for a present legal problem etc. These last issues are matters for which the writer has responsibility. At present, each student is dealt with individually on the basis of absolute confidentiality. It is incredibly time consuming to lay out the admission process and the alternative courses of action for each student, whether they are presenting past convictions or a present legal problem. The web page offers an alternative and very efficient way to arm the student with the basic information before they meet with the writer.

3.2 Stage 2: Writing entry routines

While the University of Otago is committed to a policy of flexible delivery, the writer sees no point in simply placing the text of the course materials on the web for structural and administrative advantages alone. There will be no incentive for a student to engage with the material in electronic form, unless that somehow offers a different path to learning Literally 're-presenting' of the material is required, to take advantage of a hypertext environment.

This is again not novel. Software used in building CAL lessons already offers this teaching alternative. But to build 20 separate lessons, corresponding to each formal class, is simply not feasible. In the writer's experience the oft quoted '200 hours to produce 1 hour of CAL' has proved a remarkably accurate, if somewhat gloomy, prediction.

In fact the course already has five hours of CAL lessons embedded within it. These were produced 5 years ago, but have achieved a remarkably long shelf life, since they focus on the process of statutory application and interpretation rather than substantive law, where currency of content is imperative. These programs have been reviewed and will be modified for web based delivery to allow students to down-load them. (This in itself will be an advantage, in that it will reduce the almost insupportable pressure on the CAL laboratories.)

The second stage will be to write entry routines to each of the formal classes within the course (treating each as a single module). This is a reconstituted version of CAL. It will not attempt to take the user through a guided iteration to a conclusion, which a full blown CAL program might. Instead it will provide a guided form of preparation for the class itself.

Perhaps the way in which to make the reader appreciate what is proposed is to compare the experience offered by the present materials. An introduction to each class lays out the particular focus of the module, whether it is a problem solving exercise assisted by a judicial decision or one in which the class must be reliant on their collective skills in partnership with the writer. Students are expected to read the whole module (usually 10 or so pages) before class, aided by some questions and suggestions. At the beginning of the formal class, the writer introduces the material and the teaching objective and lays the substantive foundation for the problem solving part of the class (usually conducted by question and answer). By way of review, the writer usually runs a full iteration of the application and interpretation process in the last 10 minutes.

This works well for many students. However even for those prepare, there can be a real dissonance between that preparation and comprehension. It takes a strong ego to admit this in front of 600 peers, particularly in a competitive entry programme where only 1 in 3 'survive' to complete the LLB degree. The web page offers potential to mitigate this learning problem, because student preparation will perhaps be better directed by the digital entry routine. If a class revolves around application process, the web entry may provide a more sure-footed guide to analysis of the issues to be determined than seried questions in hard copy. Alternatively if a class focuses on the judicial response to a problem of interpretation, then the entry routine will enable the student to feel more confident about foraging within the text of the judgment to isolate the interpretative techniques employed.

Another learning difficulty is the low tolerance for intensive reading and close textual analysis. Students cleave with a palpable sense of relief to flow charts or other graphic representations of legal concepts and process, which the writer uses in class. But the teaching objective is always to drive the student back to the raw text and to encourage them to trawl within that in order to capture the essential skills in using legislation. After all, it is this ability which forms a large part of their future professional collateral. Fostering its development does require the student to accommodate unease (often the necessary condition of internalising a new intellectual process). The web environment, if properly constructed, can foreshadow and reduce this discomfort.

For example, hot-linking each step in the preparation routine to the relevant part of the statutory text will help the student to literally 'train' their legal eye. Applying a statute with comfort is partly about the almost automatic recognition of statutory structure - the ability to gain an overview by tracking, first of all, the basic units of information. Experienced users garner without intensive effort the short title, commencement date, which terms are defined (and whether their definition is exhaustive or inclusive), which sections are procedural and which substantive, which sections are internally linked to another etc. This is difficult for a novice. Linking the preparation routine with the statutory text itself will allow this kind of textual 'drill and practice' in scanning the statutory material as an experienced user would.

Using the hypertext ability of the web in these ways is not pandering. Most students exhibit to a greater or lesser degree the desire to avoid confronting the legal text directly. Hotlinking should have the effect of constantly shepherding the student back to the text, but with a higher level of comfort because of the structured entry routine. This does not mean that the value of the existing materials will be deliberately downgraded. It is not intended that students be driven by default to the web page entry to formal classes because the conventionally published materials present a less directed preparatory process. The aim of the project is to provide an alternative path. In fact it may be that some will use the course materials to prepare and check their learning afterwards via the web entry, to confirm the path of their reasoning or conclusions.

The same web transference is proposed for the weekly tutorial programme. This is administered by the writer and taught by 30 tutors, who range from professorial level colleagues to final year or masters students. Building digitally guided entry routines to the tutorial problems will hopefully have the effect of assisting students on a seemingly more individual basis. Somewhat more maternalistically, it is hoped that this will also maintain a kind of quality control upon the efforts of the tutors in the programme.

The final opportunity provided by Stage 2 is a kind of cut-down CAL development in the area of formative assessment.

One of the existing CAL programs used in the legislation course has a substantial section on assessment. It includes explicit bench-marking of performance standards and contains three opinions (ranging from a clear fail, through a mid range effort to one demonstrating a high level of achievement). These opinions (produced by the writer) can be browsed for marking comments on both their form and substantive content. Anecdotally at least, students report a real hunger for more of this kind of transparency in assessment. They enjoy being able to sit the problem contained in the programme and to compare their answer with the three stereotypical opinions. To write more full blown CAL programs which focus on summative assessment (for formative purposes) would take a great deal of time. But the web project will at least allow the putting up of other problems, with real student responses and marking comments.

This is already done in a small way each year, after the class has undergone a practice exam in legislation. Each tutor submits their best student opinion and several are word processed (to retain anonymity) and placed in the law library. Web publishing would clearly allow far more accessibility to this kind of student produced material, which would also carry brief assessment comments from the writer. While not the ideal, it will feed the appetite for examples of good legal writing, which students seek to emulate. Stage 2 therefore represents the largest burden for the writer in terms of preparing the page. It is a 'wish list' of learning outcomes which the web makes viable in theory - in practice, only time will tell.

3.3 Stage 3: Evaluation

The final stage of the project begs the very large question of assessing the success or otherwise of Stage 2. Ideally, a control group could be selected who would be allowed access to the learning routines offered by the page to the exclusion of the rest of the class. But this is not ethical when members of the class are competing for a restricted number of second year places. Certainly, the writer should get some impression in class whether the preparation routines are making a difference to the quality of discussion and course evaluations administered at the conclusion can be adjusted to take account of the presence of the web page.

But it is the web itself which seems to offer the best formatively focused analysis.

Tracking use by individual students raises issues of privacy and so it would not be appropriate to build an identifiable user profile for each student. What is proposed is anonymous tracking of user paths through the material. Analysis of this material may provide data on a number of learning issues: e.g.

Of course, this tracking might prove to be the kind of Procrustean bed, avoidance of which was part of the dynamic for the page itself. But it has to be attempted if only for the reason that it can provide the first real opportunity to try and observe how it is that students learn, rather than how they perform.

4. Conclusion

This web page project is about things formative, rather than summative. As law teachers we are increasingly asked to become more than rank amateurs in the theory of the pedagogical process. When we set out a 'learning objective' or predict a 'learning outcome' we imitate the archaeologist who must, in order to justify disturbing a site, make a best effort prediction at what may be below the surface, based on empirical evidence of appearance. Our empirical evidence of what must be under the surface has been gleaned almost exclusively from summative assessment. Just as the archaeologist must eventually dig to assess whether the objective of their discovery process matches that which is discovered, so perhaps must we. Web technology, using a closed page, seems a powerful tool with which to begin.