| 3 Web JCLI|
Company Law Unit leader Faculty Education
and Staff Developer
Southampton Solent University
Copyright © Susan Bailey 2006
First published in Web Journal of Current Legal Issues
This article considers the development of a PBL approach to the study of Company Law at undergraduate level, over a period of three years. The unit is delivered as an option in a traditional qualifying law degree. The conclusions are that a pure PBL approach cannot work at this level in isolation, but that a variant can provide a good student experience, enhancing motivation and results and leading to a fuller understanding of the discipline.
In 2001 I introduced a problem-based delivery approach (PBL) to a 20 CATS undergraduate option in Company Law, which sits at levels I and H of a qualifying law degree. This is the story of the development of the unit, and an analysis of whether such an approach can flourish in a programme despite little underpinning.
There are two questions which fall to be answered:
1) Can problem-based learning approach really work when mixed with traditional delivery methods? This will be addressed in this paper and
2) does it enhance the student experience at the undergraduate level? This is the subject of on-going research.
Problem based courses use stimulus material to engage learners in considering a problem, which as far as possible, is presented in the same context as they would find it in a realistic situation; this often means it crosses traditional disciplinary boundaries. Information on how to tackle the problem is not given, although resources are available to assist learners to clarify what the “problem” consists of and how they might deal with it. Learners work co-operatively in a small group or team with access to a tutor who is often not an expert in the field of the particular problem presented but someone who can facilitate the learning process.
1) Knowledge management
It is imperative that students understand their knowledge and that this understanding should approach the functioning level as identified by Biggs (2003). Information today is freely and extensively available and it becomes necessary for students to understand and manage knowledge in a different way from previous generations. This process should start at undergraduate level. Traditionally, the knowledge acquired at University is seen as being “declarative, abstract and conceptual and deals with labeling, differentiating, elaborating and justifying” (Leinhardt 1995: 402). In a University, which has the stated aim of preparing students for the world of work, this approach to the acquisition of knowledge is unhelpful. Of greater use is the knowledge that Leinhardt (1995) describes as “Professional knowledge” which is “functioning, specific and pragmatic and deals with executing, applying and making priorities.”
Duch (2001: p4) enhances this description:
Problems that future professionals will be expected to solve will cross-disciplinary boundaries and will demand innovative approaches and complex problem-solving skills. Those of us who teach undergraduates in higher education institutions are obligated to rethink how we teach and what our students need to learn in order to prepare them for this challenging time.
Other writers such as Savin-Baden (2000: p5) believe that
“problem based learning is an approach that can embrace both liberal education and operational curricula, as it offers the student opportunities for undertaking learning that holds real meaning for them in circumstances where knowledge is valued for its own sake as well as in the context of accountability and market related values”. Whichever philosophical approach is adopted, it seems that problem based learning has much to offer.
2) Facilitation of deep learning
As legal educators we seek to facilitate a deep learning approach in our students (Marton & Saljo 1976, Biggs 2003) as deep learners understand what they are learning and are able to make connections between new knowledge and previous learning, and look for meaning in their learning.
Biggs (2003) identifies four essential elements that encourage deep learning:
Gibbs (1992) states that problem based learning embodies all four elements identified by Biggs and so represents a valuable strategy to help students become deep learners. Problem based learning also fits well with Leinhardt’s notion of professional knowledge.
3) Student-centred approach
Finally, I wanted to design a student-centred approach to learning which produced the solution of students developing an understanding and appreciation of the operation of the whole process of Company Law through active engagement as opposed to the patchy in-depth knowledge that had been fostered by traditional methods of assessment of an assignment and 3 hour unseen examination consisting of a choice of four questions out of eight.
1) The Curriculum
The LLB is a qualifying law degree where delivery methods of the core subjects tend towards the usual acquisition of knowledge model that is followed in traditional delivery patterns.
(Biggs, 2003: p 42)
The diagram represents the way that students are currently used to learning, problem based learning inverts this process. In my institution there is some underpinning at level 1 in units entitled Legal Contexts and Governance where problem-solving skills are explored. This provides some assistance for the level 2 students following Company Law, but for level 3 students joining the option, there is no underpinning at level 2. However, students may choose less traditionally delivered options at level 3. This context had to be taken into account in the design of the delivery and greater support had to be built in than might be found on a traditional problem-based learning unit. Duch (2001: p40 ) supports a more flexible model of problem-based learning where “ mini lectures and whole class discussions play a role in the model as well as other activities such as debates and presentation of …..problem solutions.”
2) Degree structures
The possibility of crossing disciplinary boundaries is not realistic in a unitized course based model in which we work, nor is it possible to break away from the compartmentalized way in which the study of law is presently seen in a traditional undergraduate programme. There appears to be a strong belief that the delivery of law has to be content driven which derives from the artificial areas that it is boxed into. The titles given to the units provide further evidence of this compartmentalization which encourages students to shut out consideration of other areas of law when they are working on a particular unit. The syllabus for Company Law is a good example of this as there is no consideration of employment law or tax law, light coverage is given to creditors and re-engaging students with contract law in a seminar entitled Company Law is sometimes a task which requires Herculean strength. The best that can be done currently is to constantly raise students’ awareness that these areas do not operate in isolation.
The unit is designed so that students form a fictitious company, register it with a (local) Companies House, create a Board of Directors, allot shares, consider a series of unplanned events and eventually wind up the company at the end of the year. Seminars are scheduled as Board Meetings where the tutor acts as facilitator. The directors are also the shareholders in the company. Students are invited to consider the nature of the company they wish to form, though the unit is written in such a way that the only realistic choice is that of the small private company to meet the requirements of the syllabus.
Once the companies are formed and registered the first problem focuses on the articles of association with the aim of acquainting the students with the contents of the articles. The second problem directs the students to their memorandum of association with the same aim in mind. These problems are tailored to the documents the students have produced and the level of questioning and discussion in the Boards. For instance, an enquiry might be made of a board as to whether the company is permitted to make political or charitable donations, but if it is apparent from discussions that a board has already identified this as a potential difficulty when looking at a short form objects clause a different problem will be set to engage the students at the level of understanding they have reached. Challenges and problems occur weekly and it is possible to allow some flexibility in the length of time taken by individual boards in the process. The issues range from ongoing operational matters to more formalised problems that require solving within a specific time frame and can be generic or individually tailored.
The structure of the Board Meetings clearly meets three of Biggs’ four essential elements (motivational context, learner activity and interaction with others) that encourage deep learning. The achievement by students of a well-structured knowledge base provides more of a challenge. Using a problem based learning approach the students are expected to construct this knowledge base through tackling the problems, questioning, accessing resources etc and it is here that the lack of underpinning for this method of studying and the lack of experience has the potential to cause a crisis in confidence for the students. To tackle the acquisition of the knowledge base without abandoning the philosophy of problem-based learning I reviewed the lecture process. Following the thinking of Prosser and Trigwell (1998) I needed to alter the students’ perceptions of the purpose of the lecture so I designated them “large group sessions” to start to cast off the image of the traditional lecture. With the adoption of a problem based learning approach the large group sessions needed to be designed to provide a discovery based technique to address three things, a) to examine academic theory underpinning the practical sessions of the Board Meetings, b) to correct misconceptions and c) to fill in tranches of law that the students might have missed in their Board Meetings. This called for a mixture of methods such as the use of an occasional mini lecture as identified by Duch (2001 p 40) and group contribution by students in a jig saw technique building to create a whole picture of a specific topic.
However, “It is difficult for students to view a project holistically as a practitioner would and to apply professional standards of both pragmatic and intellectual rigour to the given work” (Maitland & Cowdray 2001:p 94) and it was clear from the outset that the integration of practice, knowledge and theory would cause me as much difficulty as others using this approach. What is clear to the team is that it is the large group sessions that are the key to meeting all four of Biggs essential elements.
Moon (1999), Biggs (2003), Ramsden (2003) recognize that assessment drives study practices, in fact it can go as far as defining the curriculum for the students, so the design of the assessment strategy and its implementation were crucial to the facilitation of learning as an integral part of the learning process. In this unit the students work in groups, think individually, share that thinking within the group to create group synergies and move into the higher order thinking skills. Assessment was required of an individual understanding of Company Law synthesized from the problem solving the students had been engaged in across the year. The first important step was therefore to devise a suite of problems that would engage the students’ interest and motivate them to probe for deeper understanding of the concepts being introduced and achieve the outcomes mentioned above. (Duch 2001).
The design of the assessment needed to facilitate the process of individual research and encourage students to link theory and practice. The reflective journal, as something to be assessed, has the advantage that regular formative feedback can be given on work and a feedback dialogue can be opened up between the student and the tutor. As a result the reflective journal was chosen to represent 50% of the assessment (Schon 1990, Moon 1999). The reflective journal would show understanding of the law as applied to a particular company and the development of the individual student through the group work on both the subject side and on ability to deal with groups, chair meetings etc.
In order to provide a variety of assessment and to give students the opportunity to demonstrate their individual understanding of Company Law a viva worth 40% was selected as the second element of assessment. It was recognized that the students might find this method of assessment stressful and so opportunities to practice and the way of describing the event to the students were carefully considered. Maitland & Cowdray (2001: p 95) are supportive of this type of assessment “Once students realize that the viva is in fact a debrief for their learning and understanding, many inhibitions disappear” and this is the approach that has been adopted.
The remaining 10% was reserved for in class contribution and the determination of criteria for the award of this small percentage has caused more discussion than the other two modes of assessment.
Following a successful validation the unit was introduced to a small group of students in 2002 and is now on its fourth iteration. 15 students were introduced to the technique of problem-based learning using the model developed by Monash University (2001). The Board Meetings started well, but within three weeks the students started to become demotivated. In the sixth week mini lectures were reintroduced to counter this apparent demotivation and to provide a framework from which the students could start to tackle new problems. Student motivation rose instantly and participation in Board Meetings was excellent. At this point the unit had moved away from being purely a problem based learning experience and was moving into the realms of blended learning or Duch’s flexible model. Gradually through the academic year the students gained confidence and became more independent. By the time they had wound up their companies they had taken full control of the learning process and it proved to be an exciting and uplifting end to the academic year with 100% pass rate and improved grades providing the icing on the cake for both students and their tutor.
The vivas demonstrated that the students had achieved considerable integration in their understanding of Company Law. The ongoing formative feedback process worked well for some students, but there were others who found it difficult to engage. One of the issues they struggled with was the idea of handing in an unfinished piece of work to receive feedback and then building on their work for the next hand in date. The students longed to tidy up the work and re-write where feedback had been given such that the developmental nature of the work became lost.
Comments in the reflective overviews made it clear that they had found the unit completely different from anything else they had studied, thus reinforcing the fact that there is little identified underpinning. The journals also identified that the students found the concept of reflective writing difficult as exploring an emotional context of their work in a document is not something that law students are used to doing. They longed to be given a structure to work to and found it unsettling and another confidence issue when asked to write in a very different way. The students had eventually enjoyed the experience having found it alarming at the beginning and that they felt they had gained new skills and abilities as well as developing a comprehensive knowledge of company law.
The outcomes from this first iteration indicated that there are difficulties in achieving an effective linkage of theory and practice, also that the delivery of the unit needed to be further refined to dilute the effect of the lack of underpinning by providing greater support to the students.
The large group session was developed this year to adopt a jig saw technique whereby students would undertake pre-reading, then work in groups to answer a series of questions which fed into the bigger picture of a particular topic. Tasks and follow up information were posted on the MLE. The number of students following this option increased to 51 and new challenges arose. The unit team had to be increased and a like minded colleague found, however, any colleague would be new to the process and would require development in the facilitation role; seminars had to accommodate two boards of directors which created physical difficulties of noise and space. The facilitation role turned into the “floating facilitator” as described by Duch (2001: p 41) as we moved between the two groups in each seminar session asking questions and probing for student understanding. However, this did not alleviate the small size of one of the seminar rooms and the intense noise generated by two boards of directors engaged in their business.
It was interesting to note that the two seminars differed markedly in their approaches to the unit but that the two boards operating within each seminar behaved in very similar ways. The first group had always started before I walked into the room. Their board tables were covered with books and information downloaded from the Internet; by contrast the second group always started in neat rows and had to be reminded to form their boards for several weeks. Discussions in the second group around company formation were more focused on drawing up a business plan and lubricating the working capital of their companies than on the legalities of formation.
Attendance at the large group sessions settled around 50%, perhaps because the questions and reading were always posted on the MLE so some students did not feel the need to attend. However, communication with the lecturers about absenteeism increased significantly. By contrast the students who attended the large group sessions were all well prepared and the sessions were lively and discursive and it was not long before I was taken to task by the students for being too controlling in these sessions. Attendance at Board Meetings remained around 90% and extra Board Meetings were being arranged by the students on a regular basis. The greater flexibility introduced into the learning experience felt more comfortable to me.
Mid way through the year two Socrates students who had been part of a company left to return home. Here was a real life opportunity for their board that had to tidy up issues left by the two departing directors and their shareholding. This provided an excellent example of the flexibility of this delivery approach as the problem this departure created was turned into a learning opportunity.
Reflective writing continued to pose a challenge. Formative feedback was offered on an informal basis at any time of the year to the students, but very few actually took up this offer. In this iteration two hand in dates were set for the reflective journals, the first was specifically for formative feedback, and despite it not being a formally scheduled hand in date, only one or two students in the cohort did not hand in on the recommended date. Feedback from the students once the work had been returned to them was interesting. Of paramount interest was the mark. The team had been persuaded by the students to give an indicative grade as well as the formative feedback and had reluctantly agreed to this student request. This indicative grade was the cause of some dispute as several students felt that they should be rewarded for the effort they had put into writing their journals. Some students expressed concern about the amount of feedback written and were worried that they “had not got it right”. Once they read the feedback they realized that the comments were developmental in nature, however, they then wanted to alter the original piece of work to reflect the comments. Students who had done very little work at this stage were relieved to know that they could still rectify their situation by writing a further reflective piece.
The viva gave the greatest cause for concern as many of the students were very nervous. Maitland & Cowan’s approach (2001) “selling” the viva as a debriefing of learning did nothing to dispel the nerves which sometimes had a physical effect on the students either freezing them into inactivity or in one case the student burst into tears. I queried if this is really a good way to test understanding. In order to eliminate some of the effects of subjectivity in assessing the vivas the tutors swapped students, something the students found unsettling as they had formed a bond with their seminar tutor.
As a result of this, the team decided to make some anonymised taped vivas available to the students and to offer practice vivas towards the end of the academic year. The practice vivas will take place in a group setting to allow several students to see what happens even if they choose not to participate at this stage. The groupings will be the companies that the students have worked in all year so that they know each other and feel that they are in a safe environment. The group practice also combats resourcing problems that would arise from offering individual practice sessions.
The final marks from the second iteration again were good. However, the challenge of linking theory and practice still remained. A review of student feedback shows a generally positive response to the unit:
“The journey through Company Law has been intense, and I mean this in a complimentary way. Never before in my three years at Southampton Institute(sic) have I prepared for a lecture (large group session) as well as a seminar, with delegated work on top, and in this respect took me a few weeks to really get going.”
“At the beginning of the course I felt I was cast aside, spoken over a lot of the time, but within a few weeks I expressed the fact that everyone was always speaking over me and not taking on board my suggestions, after this I became more involved and everyone began to listen to me more.”
“Although a number of topics we have dealt with this year have been difficult to understand, I have very much enjoyed the challenge of tackling them.”
“I have found I get a much better grasp on an issue when we actually have a problem to solve regarding the issue.”
“Well, finally here I am writing my final entry! I must say I have really enjoyed taking part in this subject although it was quite difficult and stressful at time.”
“Last night I looked back and read from my first entry, I can’t believe how far I have come.”
“Over the course I have learned a great deal, not only about company law, but about organizing and working with others.”
There is a clear recognition here that work loads were high for the students. Increased tutor workload also has to be considered and a balance has to be struck in swapping exam and assessment marking for a process that encourages continuous feedback in small chunks.
With the challenge of linking theory and practice still high on the agenda, the decision was taken this year to ask the students to sit in their Company groupings in the large group sessions to try to encourage group ownership of the underpinning theory being discussed with the intention that they should take this back to their discussions in the seminars. This year student contribution in the large group sessions was minimal through out the year. Attendance fluctuated wildly. The sessions were timetabled in a raked lecture theatre with a raised dais at the front which contributed to the low contribution. In addition I had forgotten how difficult it was to start the problem based learning approach as the second iteration had been successful and I wanted to build on that success.
Board meetings also took on a different character, and the group dynamics were very different. In the third iteration we were working with a mixed group of disciplines, predominately LLB but with some BA (Hons) Business Studies students in the group. Feichtner & David (1985: p 61) highlight some of the pitfalls of group work:
“A great deal of research supports the benefits of collaborative learning and the development of learning communities. However, it can leave students feeling cheated by group members who do not pull their weight. There are many ways that groups can fail.”
This year for the first time splits occurred in Boards such that the students found it difficult to work together on problems and one or two disruptive members created further tensions. Again this provided a real life experience for the students to overcome, with support from the tutors and the attending students developed clear strategies for overcoming the potential problems. Flowing from these challenges one of the students wrote the following advice to future students:
Having considered the slow start into reflective writing that the students experienced in previous iterations, and feedback about confusion and not understanding what was expected of them for the reflective writing, the team devised a set of benchmark statements which were given to the students prior to hand in dates. The aim was for the students to write to these benchmark statements which would focus them more. The formative feedback would be structured around the statements. The team also, in an effort to provide further support to the students set three dates for submission. Two for formative feedback and the final one for substantive marking. Once again there was almost 100% hand in on the first date set. For the second date very few students handed in preferring to wait for the final date. The use of the benchmark statements did not make it any easier for the tutors to provide formative feedback as the students did not really write to the statements, so hopes of using a plus/minus process around the benchmarks were abandoned. However, reaction to the formative feedback from the students that really read it was positive. A typical comment about the formative feedback was: “There’s an awful lot written here, did I do so badly?” Once the student had digested the feedback they then became happy to engage in a dialogue about their work. This approach remained in the minority.
Viva practice was offered, but not taken up by the majority of students. However, this cohort did not appear to be so intimidated by the thought of the viva.
Yet again feedback was generally positive and the team learned even more about facilitating this approach to learning.
“The positive aspects of the unit was the large group session together with weekly problems/questions which helped to point me to what reading needed doing for the topic in hand.”
“I also enjoyed working as a group to find solutions to the problem questions we were given. I think these exercises really helped us as a group, not just because it enabled us to broaden our understanding of company law, but also because it helped to strengthen our relationships with one another and this was extremely beneficial, especially during company meetings.”
“Having to work within a group and manage a company of our own was certainly a challenge, but a welcome one because in light of complexity of the law and sheer vastness of it, learning simply by theory and lecture based work could never be as successful.”
“It enabled the development of other key work-place skills such as team work, compromise and even at sometimes the ability to present and teach what you know. As difficult as the balance sometimes was, I always enjoyed the strategy and structure of the course.”
This last comment and others of a similar nature indicates clearly to the team that a blend of learning activities within the broad problem based learning umbrella is the most powerful in terms of student learning.
Developments for the fourth iteration are to find a strategy to open up the feedback dialogue as those students who engaged in a dialogue clearly performed better in this unit both on a practical marks level and also on their ability to engage with future employers. Two students in interviews guided the discussion to their engagement in Company Law and were asked by the potential employers if they could have sight of the reflective journals; these students are now both employed in the IT industry with their employers sponsoring their LPC courses.
The other constant challenge when using a PBL approach is the linking of theory with practice. Students greatly enjoy setting up a company and dealing with the day to day issues and they can carry out tasks at a practical level using information form textbooks, statutes, companies house etc. By the end of the year they develop strong competencies in dealing with a range of legal issues relating to the administration of a company. However, the underpinning philosophical and academic legal arguments although growing stronger with each iteration, still require more consideration from the course team as to how to assist the students in making the linkage more apparent. One significant development worked on through the year with considerable assistance from the library and the educational technologist is the introduction of links to databases and websites within the questions for the large group sessions and the problems. Students will be encouraged to use these links in seminar sessions to check facts and arguments. A further proposed development is for students to come to the large group sessions having written a sentence or two addressing what they hope to get out of the session. At the end of the session they are given five minutes to reflect on what they have learned and what questions remain unanswered. Analysis of this feedback will be quick and will identify gaps or misconceptions speedily which can be addressed at the beginning of the following large group session. The sheets can be returned to the students to assist with their reflective writing and also possibly they may demonstrate to them how they are developing, thus increasing their motivation and confidence.
How does this unit measure up to the four essential elements identified by Biggs? All the evidence points to the fact that, without any knowledge of company law, it is difficult for students, initially, to identify what they need to know. At undergraduate level student confidence suffers with a pure PBL approach. As the unit progresses students can gain confidence if supported and encouraged and gradually reach a situation where they have the confidence to probe significantly and unguided their knowledge and develop further knowledge and understanding. Motivation increases with this increase in confidence. It is therefore important to boost confidence at an early stage in the unit. However, it is important to realize that it is possible for students who remain unmotivated to become excluded from the group, particularly if they act as passengers in the leaning process. Motivated students are concerned to have as many answers to issues as they can possibly locate and operating two companies in one room introduces an element of competition to the process. The unit team has realized that this can be used to advantage when the groups are reporting back to the whole class on results of individual discussions. Interaction with others depends on the group dynamic, but even where the group dynamic is bad; there is still interaction within the group. Apparently “bad” or difficult situations can easily be adapted to create a positive learning experience
Students are enthusiastic to understand and use practice and become highly focused on the problems, but they are not so keen to explore the underpinning theory and the integration of theory and practice remains a challenge. This enthusiasm translates well into attendance in the seminars. Making that step in the large group sessions is more difficult, but essential to integration. Unless good integration can be made here it is hard to support Savin-Baden’s (2000) view of PBL embracing liberal education and operational curricula and also that its use provides a robust academic structure.
Is this problem-based learning? According to Engel (1997) it would not fall into a model for PBL, but according to Boud (1985) and Savin-Baden (2000) it could be one of the many forms of PBL. Does the label matter? To the extent that it serves to identify how and at what point in the learning process knowledge is constructed, it is important as it signifies that knowledge is constructed during the problem solving process on a need to know basis and then synthesized for transferability and the purposes of making links as the course progresses. However, with regard to student achievement, it does not matter. The reflective writing and vivas show that students are gaining a much greater picture of the working of Company Law.
Can true PBL approach exist in an undergraduate curriculum in isolation? My experiences show that it cannot, but a variation which incorporates a blend of learning can and results in motivated students. That blend is volatile and will change from year to year and from group to group and is based in a psychological and social contract with the students and between the students.
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