NETLAP

Network of Teachers of Land & Property

Month: April 2018

Eeyore’s Thoughts on the Solicitors Qualifying Examination

by Dr Lisa Whitehouse, University of Hull 

As I get older (or perhaps wiser?) the gravitational pull of progress seems to bear more heavily on me. Given I am aware of my wariness of change I try to approach it with an open mind but I have to admit that I am struggling to see the benefits of the SQE. While I understand the SRA’s motives in trying to create a more uniform measure of the skills of graduates, brandishing a very large hammer to crack this specific nut seems unnecessary and unwise. I would say that though wouldn’t I? As an academic lawyer I am naturally concerned about the SQE’s potential to sound the death knell for law as an academic subject. An overreaction you might say but the proposed response of a number of higher education institutions is to offer of an optional pathway to the SQE. This has the potential to result in a diminution of academic autonomy and the creation of a one size fits all approach to educating nascent legal thinkers. However, while some may, for this reason, view the SQE as a threat, others will see it as an opportunity. In many ways, ‘teaching to the test’, particularly someone else’s test that requires students to know the what and the how of law, is simpler than trying to persuade students of the value of understanding why the law is as it is. The SQE will, in effect, make those teaching the pathway to it equivalent to driving test instructors, teaching students not to be ‘good’ drivers but simply good enough to pass the test. Similarly, consumers (sorry, ‘students’), will choose their provider, not on the basis of the student experience or the expertise of those teaching them but, on the pass/fail rate of previous students who went on to take SQE1.

I have started to wonder whether my concerns regarding the proposed changes arise partly out of my being a land lawyer. I do not think that I am giving too much away when I say that Land Law is not a universally loved subject. The mere mention of it to anyone who has ‘had to’ study it is likely to result in a look of consternation followed by the recounting of unhappy memories of trying to understand a bewildering array of archaic terms, complex rules and statutory sections. While students have tended to view Criminal Law as the equivalent of a James Dean character, all edgy and sexy, and Jurisprudence as Sartre, smoking in horn-rimmed glasses, Land Law is perceived as John Major, quite clever but achingly dull. Given its reputation, I have fought over the years to ensure that Land Law is taught in a way that makes it relevant to the lives of those studying it, to invest it with colourful examples and to inform it by reference to my research. Despite my concerns regarding the potential for the SQE pathway to focus on the doctrinal content of law and its practice, I am not averse to inviting legal practitioners to speak to my students. The aim however is not to reveal to the intricacies of the White Book but rather, to hear stories of hawks and doves within the judiciary, eccentric clients and, how the law in books does not always reflect the practice. I take delight in the fact that a number of students have told me recently that, despite having been told how difficult Land Law is, it has turned out to be their favourite subject. While its only competition may be EU Law and Public Law that’s still an achievement! I wonder whether a move to teaching the pathway to the SQE will allow me to continue teaching my students in this way.

I wonder also (sorry, just putting my rose tinted spectacles on here) whether the SQE pathway has the capacity to engender in students the same level of passion for Land Law that was ignited in me during my university days (if I had been able to carry Elements of Land Law around with me as a badge of honour then I would have done, but it was too heavy). Will lecturers have room, as my lecturers did, to cast enchantments littered with Latin and equitable maxims that imply that everything will be fine provided you clean your hands before doing what ought to be done? Or will it simply be a matter of students learning by rote the statutory provisions and Civil Procedure Rules prescribed by the SRA?

While I may be holding on to an age that has passed, I have to continue to believe that higher education is not about producing clones but rather facilitating students to be inquisitive, critical and adaptable learners. If, despite the ever changing nature of legal education, I can continue to do that then I will be content that I have done justice, and not by halves.

 

Assessing Land Law Using Online Testing

by Sandra Clarke, University of Greenwich

With the advent of the SQE, which will have a large component of online assessment, it seems a sensible time to examine the benefits and drawbacks of this method.

I teach a 30 credit level 5 land law course to around 90 students per year. Last year, I changed from a seen written exam in January to a seen online assessment. Both assessments test all the material taught in the first term (introductory material on the nature of land, tenure and estates, the freehold estate, leaseholds, co-ownership, trusts of land). Aspects of co-ownership and TOLATA in particular, along with writing skills, are assessed in more depth by a research problem question in term two.

The assignment consists of 20 questions, a mix of MCQs, extended matching, and ordering. In this post, I will concentrate on MCQs. Questions are created using the Moodle quiz tool. They are based around a register of title, which is available to students before the Christmas break, as are the questions asked (but not the options). Students can ask questions about the assessment on a dedicated Moodle forum.

Students take the assessment unsupervised during an eight hour window. Once they begin they are timed, and cannot restart. Last year I allowed one hour for the students to complete the MCQs, but this was too long. For comparison, the QLTS requires candidates to answer 90 questions in 165 minutes (about 1.6 minutes per question). This year I will allow 40 minutes. The Moodle quiz tool allows extra time to be added for students with reasonable adjustments for specific learning needs.

MCQs consist of three main parts, the stem, the lead in, and the options, which consist of the key (correct answer) and a number of distractors.  For example:

Stem The Boat House has been sold to Lucy and Francine, who hold the property as joint tenants in law and equity. In fact, Lucy contributed 75% of the purchase price. Lucy has served a written notice on Francine stating that she now wishes to sever the joint tenancy.
Lead In What will be the effect of this notice?
Options A.      Lucy and Francine will still be joint tenants at law, holding the land on trust for themselves in equity. Lucy and Francine will now be tenants in common in equity, holding equal shares (50% each).

B.      Lucy and Francine will still be joint tenants at law, holding the land on trust for themselves in equity. Lucy and Francine will now be tenants in common in equity, holding shares in proportion to their contributions to the purchase price (75% to Lucy and 25% to Francine).

C.      Lucy and Francine will be tenants in common in law and in equity, holding the property in the shares in which they contributed to the property (75% to Lucy and 25% to Francine).

D.      The written notice will have no effect, as joint tenancies cannot be severed by written notice.

Critiquing this question (which is one I used in the test last year), the first point is that the stem is unclear, as it is not specified whether the starting presumption is required, or the decision that may be reached if a common intention constructive trust is raised. It would have been better to have stated clearly that it was an express declaration of trust creating a joint tenancy in law and equity, or to have said ‘what is the starting presumption of the court as to the effect of this notice?’  In practice, since this was a seen exam, the students could ask if they were unsure. The stem is meaningful, and does relate to a particular rule of law which the student should know.

The lead–in should ideally be able to be answered by the student before any of the options are seen. This would be the case here if the stem were clear. A student who knows the legal rule should be able to identify that it is relevant here. Lead-ins to avoid include ‘which of the following is correct?’, or, even worse, ‘which of the following is incorrect’?

The options should contain a clear key and a number of distractors which should be plausible and not too different in length from the key. In this respect, distractor D is not ideal. It could perhaps be rephrased as ‘Lucy and Francine will still be joint tenants at law, holding the land on trust for themselves in equity. They will continue to be joint tenants in equity as joint tenancies cannot be severed by written notice.’

It is possible to give partial marks for partially correct answers, but I will not do so this year as I found it inflated the grades achieved, and will not apply in the SQE. Students have to find the best answer, even if other answers contain some correct information.

My initial findings after one year of online testing are that it is possible to test understanding and application in online quizzes in land law, but setting the questions is a difficult and time-consuming task.

Helpful articles include:

Case, S. and Donahue, E. (2008) Developing High-Quality Multiple Choice Questions for Assessment in Legal Education 58 J. Legal Educ. 372 2008

Deane, F. and Bozin, D. (2017) Using Guiding Principles to Construct Effective Multiple Choice Exams to Assess Legal Reasoning Legal Education Review: Vol. 26: Issue 1 , Article 1. Available at: http://epublications.bond.edu.au/ler/vol26/iss1/1

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