This fascinating and stimulating collection of 12 essays seeks to persuade us that simulation – defined in Richard Grimes's Introduction “to mean tasks, exercises and assignments in which students are presented with real…or realistic scenarios [and] then have to follow through prescribed actions in a predetermined way” (p. 1) – should play a much larger role in legal education than it currently does. Should we listen? Every institution eventually gets bored of doing what it is supposed to be doing and seeks to pursue different goals. Is simulation an example of that – a faddish diversion from the real and serious business of teaching law through lectures, seminars, and supervisions? Or does simulation have a genuinely valuable role to play in helping law students understand and think about the law?
Simulation would seem most naturally suited to training students to act as solicitors and barristers, and Paul Maharg and Emma Nicol's opening review of the literature on legal simulation tells us that most reported simulations “were designed or run on vocational or professional programmes” (p. 23). However, only three of the essays in this collection (by Jane Ching, Karen Counsell, and Wilson Chow) are about simulation used as a means of formal professional training. The majority of essays in this collection are written by law teachers who are using simulation as an integral part of teaching law at university, and they are the ones that are likely to be of most interest to those wanting to know what simulation can do for them in terms of their teaching students doing law degrees.
The case that what we can call the law teacher essays makes for expanding the role of simulation in teaching law at university is weakened by the fact that many of those essays assume that an important, perhaps primary, reason for studying law at university is to learn how to be a lawyer. So Nicola Ross, Ann Apps, and Sher Campbell observe that “Students come to university as consumers, expecting value for money and assurances that they will be ‘job ready’” (p. 67). To similar effect, Caroline Strevens and Roger Welch argue that the virtues of simulation lie in the way it teaches students to advise clients properly, and to learn about what it means to be a professional and the way it enables students “to integrate the ‘classroom’ experience with the real-world experiences that they will encounter in their professional lives” (p. 50). Of course, if the point of doing a law degree is to prepare to be a practising lawyer, then any law degree that does not involve a large number of hands-on simulations that are designed to help a student understand what (s)he should do, and when, as a practising lawyer will be deficient. But some of us think that studying law at university is not about training to be a lawyer, but about acquiring the kind of mental and expressive skills that lawyers tend to have in spades: being able to think rigorously, make arguments persuasively, and reach reasonable conclusions about how we should live from civilised premises. If that vision of what studying law is all about is correct, then why should we be interested in putting simulation at the heart of a law degree?
Strevens and Welch's response to this objection is that “there is no reason why law degrees cannot have both a vocational dimension and develop the ability of the student to engage in critical and contextual analysis of the nature and function of legal rules” (p. 63) – where simulation would cater for the vocational dimension, and inviting students to reflect on the lessons to be learned from the simulation would cater for the intellectual dimension of studying law. Both Maebh Harding (who discusses the use of simulation in teaching family and child law at the University of Portsmouth from 2008 to 2012) and Richard Grimes (who discusses the revolutionary methods for teaching law employed at the University of York) make a much stronger response to my objection. They grant the premise of the objection – that studying law at university is about learning to think and write properly, rather than learning how to be a lawyer – but argue that simulation has a lot to offer in terms of helping law students develop the sort of thinking and expressive skills that lie at the heart of any decent law degree.
The most exciting vision of how simulation can do this is laid out by Grimes, who explains the way role play (in interviewing witnesses, conducting negotiation exercises, and arguing cases in moots) and what he calls “problem based learning” (or “PBL” for short) can be used to help law students develop a wide range of different mental and expressive skills. His main focus is on PBL, under which groups of 6–10 students are given scenarios requiring them to work together on, for example, advising a client, or making a case for reforming the law, or to setting up a business deal, or deciding a case. Grimes reports that students who are used to PBL seem to operate much more effectively than students who have had no grounding in PBL – for example, the task of drafting a satisfactory client letter takes much less time with the former set of students than the latter. However, Grimes acknowledges the need for further research on the benefits of simulation as opposed to other methods of educating law students.
An important issue for such further research is that of opportunity cost. The contributors to this volume repeatedly acknowledge just how much time teaching through simulation absorbs. As Edward Phillips points out, in detailing his experiences of using simulation to teach the law of evidence at the University of Greenwich Law School, the use of simulation “absorbs an extraordinary amount of curriculum time” (p. 228) – and it is not just the students' time that is taken up. The contributors also acknowledge that well-run simulations require a lot of planning, and monitoring of students doing the simulations. So Phillips reports that the ideal number of students doing the evidence course was only 25–30: more would have placed too much strain on the instructor. Given the costs involved in using simulation as a means of teaching law students, we have to wonder whether the educational benefits are worth it.
For example, Harding observes that one of the benefits of having her students do a simulation involving interviewing a client for the first time was that it helped teach them “the crucial role of accurate fact gathering when applying legal knowledge” (p. 145) – however, is doing a simulation the most cost-effective way of communicating that lesson? David McQuoid-Mason presents us with a model simulation, involving taking students through excerpts from Frank Kafka's The Trial, and from the real-life trials of the Chicago Eight (charged with various crimes arising out of anti-war demonstrations held at the same time as the 1968 Democratic National Convention in Chicago), Nelson Mandela, and Saddam Hussein, and asking the students questions from time to time about the excerpts (mostly of the “Have anyone's rights been violated?” type). McQuoid-Mason hopes that students will be stimulated by The Trial excerpts to reflect on what “due process” involves, and that they will learn from the real-life trial excerpts that lawyers are sometimes required by their clients to adopt a “rebellious lawyering” approach “when faced by what they perceive to be an illegitimate or unjust court system” (p. 214). Again, one has to wonder whether there are not more straightforward ways of making these points. McQuoid-Mason's simulation also courts the danger of running into another problem, which is a recurrent worry for the contributors to this volume: how to get the students to engage with, and take seriously, a simulation when they know it is only a simulation. I think this worry would deter any British law academic from making use of two simulations detailed by Roberto L. Corrada, who writes from an American perspective. The first involves teaching students labour law by encouraging the students in the class to unionise against their lecturer (the “employer”) and negotiate over the terms and conditions of their classes. The second involves teaching students administrative law by presenting the students with Michael Crichton's Jurassic Park and asking them, in light of the events presented in that novel, to come up with a biotech regulatory scheme for the dinosaur park.
I have left the essay that I found most thought-provoking to last: Susan Marsnik's account of how she uses the first day of teaching law to a class of business students to have them act as a jury in a hypothetical case involving allegations of sexual harassment. Reading this essay did make me think that, while the jury (no pun intended) might still be out on the comparative educational value of the kind of simulation exercises discussed in this book, there is a lot to be said for rethinking the way we lecture law. Instead of starting with an abstract statement of the law and then showing the students how the law applies in various concrete situations, reading Marsnik's essay made me think that law students might find the experience of being lectured more engaging, and certainly more memorable, if they were asked to consider first some concrete situations and to ask themselves – What would happen if there were no law in this situation? Having identified the evils that might arise were the law to do nothing in a particular situation, the students would then be in a much better position to understand the point and purpose (and possible inadequacy) of the legal rules that the law does apply in that situation. It is just a thought, but one that probably would not have occurred to me had I not had been challenged by this excellent book to think again about the purpose of legal education, and how we carry it out.