Kylie Fletcher, Assistant Professor, Faculty of Law, Bond University
It has been over three months since the World Health Organisation declared COVID-19 a global pandemic. It is now apparent that the effects of COVID-19, and the related restrictions, trigger a myriad of legal issues. Like many of my colleagues, I am endeavouring to acknowledge and integrate COVID-19 into my teaching of a doctrinal law subject. I am attempting to do this in a way that enhances authenticity. This post outlines my journey to date.
I teach contract law. In this discipline, much of the discussion surrounding COVD-19 has focused on COVID-19 related force majeure and frustration triggers. In an effort to maintain a contemporary subject, I included these topics in my previous semester of teaching. As COVID-19 had not reached pandemic proportions until part way through the semester, these were unplanned inclusions. Consequently, they did not form part of the formal assessment program. Instead, I included them as discussion points in the weekly tutorial program. The students responded very well and appeared to enjoy the topical dialog. They seemed to connect with the idea that, once in practice, these types of matters might occupy their time.
I have been planning my next semester of teaching. While doing so, I wondered how I might continue teaching the same topics in a more engaging way. Given the encouraging impact on student engagement, I was drawn towards designing a more authentic learning experience (Hart, Hammer, Collins & Chardon, 2011). This could be done by incorporating real-life professional experiences and competencies (Hart, Hammer, Collins & Chardon, 2011; McNamara, 2017). Outlined below are the steps that I followed in designing such a learning experience.
1. Conducted research
While well versed on the law in these areas, I was not sufficiently familiar with its application in this particular context. In order to bridge this gap, I conducted the usual legal research. In addition to the typical search tools, I referred to Melbourne Law School Covid‐19 Research Network’s Annotated Bibliography of Covid‐19 Legal Literature (Melbourne Law School Academic Research Service, 2020). I also consulted legal practice bulletins and law firm publications so as to better understand the practitioner’s perspective.
2. Consulted authenticity framework
Dr Kelley Burton provides a framework that enabled me to assess the authenticity of last semester’s learning experience (Burton, 2011, 2015). This framework is based on the scholarship in the field, including the work of Herrington and Herrington (Herrington & Herrington, 1998, 2006). Burton’s Authenticity Framework poses questions that enable educators to survey their assessments for the typical traits of authenticity. Upon my doing so, it was evident that there was limited authenticity in hosting a guided tutorial discussion about COVID-19-related force majeure and frustration. The exercise provided students with an opportunity to collaborate with each other and use some limited thinking skills in the context of a real-life topic.
Burton makes the point that authenticity is scaffolded across a whole program (Burton, 2011). For this reason, an educator is not expected to include all traits within an individual learning experience or subject. With this in mind, I focused on identifying and enhancing the traits that aligned with my subject curriculum.
3. Ensured curriculum alignment
Having regard to the Burton’s Authenticity Framework, I decided to enhance authenticity by, among other things, integrating the need to use higher-order thinking skills, creating the potential for ‘a novel or diverse responses’ and requiring students to ‘produce a valuable, polished product’ (Burton, 2011, p.25). I decided to focus on incorporating these particular traits as they assist students to realize the subject learning outcomes. Further, with the scaffolding of the entire law program in mind, these traits are an appropriate fit for contract law.
In order to incorporate these traits, I was naturally inclined to ask students to research and advise on a hypothetical legal problem based on these COVID-19-releated topics. However, in an otherwise busy subject, this might be overly burdensome. In an effort to balance student workload, my preference was to integrate these topics into an already scheduled assessment task.
The Bachelor of Laws at Bond University incorporates an integrated skills and professionalism program. As part of this program, core legal skills are scaffolded throughout the law degree. Dispute resolution and collaboration is taught and assessed at an intermediate level in my subject. Among other things, I typically focus on the negotiation of contract law related problems. Using the assessment structure that was already in place, I decided to incorporate an authenticity-enriched negotiation problem based on COVID-19-related frustration. I also decided to include an exercise that requires students to work with force majeure clauses.
4. Designed for authenticity
I drafted the assessment (and its accompanying rubric) to include the traits that I had selected from Burton’s Authenticity Framework. In devising the negotiation scenario, I was able to draw on my experience as a practicing lawyer advising on frustration issues and force majeure clauses. I was also able to derive inspiration from the resources accessed when I undertook the research (described above).
The negotiation scenario is set between two parties who regularly contract together via a standard form contract. The parties are disputing the frustration of the contracts that were due to be performed in the first half of this year. One party is claiming that the contractual obligations under these contracts have been discharged by frustration through COVID-19-related delay. The scenario has been drafted to accommodate the potential for creative solutions, so students have the opportunity to present ‘a novel or diverse responses’. The scenario also requires students to draft, propose and negotiate a force majeure clause for inclusion in the standard form contract for future use. Students will also be required to submit a negotiation planner. In order to further promote authenticity, this planner is modelled on the Administrative Appeals Tribunal’s Conciliation Preparation Toolkit (Administrative Appeals Tribunal). In drafting a clause and preparing a planner, students will ‘produce a valuable, polished product’.
5. Was mindful of potential for distress
It has been reported that telephone calls to Lifeline have increased by 25% (Willis, 2020). It is fairly clear that a range of COVID-19-related topics have the potential to cause distress. For these reasons, I carefully considered the appropriateness of all COVID-19-related inclusions. Before presenting the assessment to students, I will also consider the other matters that educators ought to consider when introducing potentially distressing content (Baik et al, 2017, p.26). While the need may not arise in my subject, it is also worth my mentioning that trigger warnings may be appropriate in certain circumstances.
If not already, I am sure that most legal educators are planning to incorporate COVID-19-related topics into their subjects at some stage. In doing so, many will be seeking to create authentic learning opportunities. I look forward to hearing from my colleagues about the various ways in which this is achieved.
I would like to thank Professor Nick James for his comments and editorial suggestions.
Administrative Appeals Tribunal. Conciliation Preparation Toolkit. https://www.aat.gov.au/AAT/media/AAT/Files/ADR/Conciliation-Preparation-Toolkit.pdf
Baik, C., Larcombe, W., Brooker A., Wyn, J., Allen, L., Brett, M., Field, R., & James., R. (2017). Enhancing student mental wellbeing: a handbook for academic educators. https://melbourne-cshe.unimelb.edu.au/__data/assets/pdf_file/0006/2408604/MCSHE-Student-Wellbeing-Handbook-FINAL.pdf
Burton, K. (2011). A framework for determining the authenticity of assessment tasks: Applied to an example in law. Journal of Learning Design, 4(2), 20–28.
Burton, K. (2015). Measuring and enhancing the authenticity of an examination and other assessment tasks. Journal of the Australasian Law Teachers Association, 8(1), 25–33. http://www.austlii.edu.au/au/journals/JlALawTA/2015/4.pdf
Hart, C., Hammer, S., Collins, P., & Chardon, T. (2011). The real deal: using authentic assessment to promote student engagement in the first and second years of a regional law program. Legal Education Review, 21(1), 97–121.
Herrington, J., & Herrington, A. (1998). Authentic assessment and multimedia: How university students respond to a model of authentic assessment. Higher Education Research & Development, 17(3), 305-22.
Herrington, J., & Herrington, A. (2006). Authentic conditions for authentic assessment: Aligning task and Assessment. Research and Development in Higher Education: Critical Visions Thinking, Learning and Researching in Higher Education, 29, 146-151.
McNamara, N. (2017). Authentic assessment in contract law: legal drafting. The Law Teacher, 51(4), 486–498.
Melbourne Law School Academic Research Service. (2020). Annotated Bibliography of COVID‐19 Legal Literature. https://law.unimelb.edu.au/centres/hlen/covid-19/scholarship
Willis, O. (2020, April 30). Mental health toll of coronavirus to create ‘second wave’ of pandemic, experts warn. ABC News. https://www.abc.net.au/news/health/2020-04-30/coronavirus-mental-health-second-wave-impacts-of-pandemic/12197930