Special studies: utilizing special knowledge and developing legal researchers
In line with the skills matrix, stage-two Obligations students are exposed to the special study pedagogy, which draws upon the introductory research skills developed at stage one in Introduction to Obligations, as well as a piece of individually conducted research in Public Law 2 (a one-term module completed at the beginning of stage two), but to an enhanced and more intensive level. This mode of legal education serves a dual function: first it is designed specifically to nurture individual legal researchers within the supportive framework of guided learning by academics with specialist expertise; and, second, it develops legal writing skills - in particular, presenting and holding an argument throughout an extended essay - an essential tool for the successful completion of coursework essays in other modules and in the exam, as well as preparation for larger projects such as dissertations. Through the facilitation of these aims, students deepen their understanding of the nature of tort law and of the way that obligations are determined, controlled and limited by the law.
The special study is undertaken in the final four weeks of the course and differs from the special study regime experienced in their Public Law module in that students are able to choose (subject to numerical limits and on a first-come-first-served basis) from a number of tort or contract-based topics, rather than being restricted to one set area of law. Whilst the Public Law special study allows students to conduct guided research in a specialized area of law, it is comparatively more restrictive in the sense that students conduct a special study in the research topic specific to the area of expertise of their allocated seminar leader, whereas Obligations students are offered a choice of academic supervisors. Indeed, they are able to select from a rich, diverse range of socio-legal subject areas within tort which include: public body liability; asbestos/mass tort litigation; privacy law and the media; theories of tort law; civil liability for mental harm; and reproductive harms and obligations.[1]
The public body liability special study is taught by an academic specialist researching specifically in the area of police liability in negligence (Horsey, forthcoming 2012). Students electing for this topic will have encountered the rudiments of tortious liability for public authorities in one of the tort case classes for this module, the Smith [2008] and Van Colle [2008] litigation, earlier in the year. In addition to police and emergency service liability, students are encouraged to consider how the social services and housing and education authorities may be held to account through private law, how policy justifications can be used by the courts to deny a duty of care, and how this may complement or be at odds with human-rights considerations. Socio-legal aspects of this special study drill down into the accountability of those carrying out a public function and the noticeable change in the public's willingness to question authority, as demonstrated by not only the police and social services cases that have reached the courts, but also in healthcare (the consent cases) and even legal advocacy (Arthur J S Hall v Simons [2002]). Furthermore, students are signposted towards a number of policy factors that underpin the general exclusionary rule that operates when a defendant is also a public body.
Similarly, the ability to study privacy law as it relates specifically to the media is offered by an academic with a keen research interest in this area of law. In this special study, students are directed to explore the development of available causes of action (for example, an action for a breach of confidence), recent case law in the UK and the European Court of Human Rights, and media and academic debate that this area of law promulgates, including the controversial use of the super-injunction by celebrities and others in order to keep private information away from the public. Students who have completed this special study have successfully embarked upon research in topics such as the tension between Articles 8 and 10 of the European Convention on Human Rights, the introduction of the Human Rights Act 1998 and its effect on the development of the common law for invasions of privacy, and in discrete areas such as the rights of ex-offenders to a private life, and the in-depth critical assessment of a singular recent Court of Appeal or House of Lords case. Although students generally do not embark upon this special study with any prior knowledge of this area of law, the concept of celebrity and the media will be familiar from the Susan Boyle and Royal Wedding stories explored in the first year, and those studying the Media Law module offered at KLS will also have a grounding in the general legal principles and case law in this area. Students are awakened in this special study to the political implications for recognizing privacy rights, particularly since the introduction of the Human Rights Act 1998 and in an era when members of the public are now very much aware of, and are afforded access to, the ability to vindicate their rights, which has contemporary salience as the recent phone-hacking scandals demonstrate (Leveson Inquiry, 2011).
With its catchy title, 'Brave new harms: reproductive harm and 21st century obligations', another special study explores how new and novel medical and reproductive technologies have allowed us to separate, store and utilize previously inalienable parts of our bodies (sperm, human tissue, embryos, stem cells etc.), adding value for individuals, industry and society, and as a result potentially giving rise to new moral and legal obligations within society. Students are asked to explore and critically assess the varying mechanisms of tort law (and contract) and how they can be employed to regulate the provision of modern-day healthcare and to consider how traditional notions of harm have now been tested by the emergence of 'new' forms of harm, such as the destruction of frozen sperm as a form of property capable of compensation (Yearworth v North Bristol NHS Trust [2009]) and the judicial reluctance to recognize 'unwanted' skin colour to sound in a legal claim (A and B by C (their mother and next friend) v A Health and Social Services Trust [2011]). This special study is delivered by a member of the teaching team who holds a particular interest in medical ethics, patents and socio-legal approaches to medical technologies. Outside of academia, this member of the teaching team also fulfils the role of legal editor at the registered charity, Progress Educational Trust,[2] publishing a weekly online newsletter, BioNews, which provides news and comment on assisted reproduction and related areas. This form of 'external' expertise helps to inject a working knowledge of the co-existence of law, science and medico-healthcare into the special study.
Drawing on the theme of mental harm studied at stage one, students are offered a special study in aspects of liability for mental harm (elements of which were studied in Introduction to Obligations at stage one) delivered by a member of the teaching team who is also a KLS Kent Law Clinic solicitor and has many years' experience in practice, dealing in particular with personal injury claims. The student study experience is enhanced by academic professional expertise in the respect that legal principles and themes can be explored with practical, modern-day legal situations in mind and 'live' cases being dealt with in the clinic can be used by way of contrast and analogy. For example, students can consider how different areas of law can be used to address claims for mental distress, and how differing policy-led decisions may drive the inconsistencies in the case law and their underlying rationale. In a socio-legal context, students track the change in judicial attitudes towards a recognition of negligently caused mental harm as capable of sounding in damages, expounded by a greater understanding of the causes of mental injury through advancements in medical knowledge in this area, thus demonstrating a clear interplay between law and medicine. Similarly, the asbestos/mass torts special study is delivered by an academic whose research interests focus upon the difficulties of establishing causation and the concept of risk within asbestos-related claims, and whose practical experience as a barrister working on asbestos litigation cases, combined with substantive publications in this area (Laleng, 2010; 2011), adds both credibility and practicality to student learning. In the same way, the theories of tort law special study is offered by an academic whose field of expertise and doctoral research is located within legal philosophy. Students undertaking this special study are encouraged to question whether the seemingly contradictory values that underpin tort law can be explained by a particular theory or whether they exist simply as a reflection of political pressure brought upon social policy.
Within the four-week special study period, students build upon their research and legal reading and writing skills acquired in Public Law, although they are encouraged throughout the Obligations special study to be more independent of their supervisor in order that organizational skills and the need to discipline one's workload are prioritized. A one-hour class is delivered for each special study, but, in contrast to the normal teaching seminar, the aim of the special study seminar is to explore in general terms the key issues arising from the topic under discussion, and to settle upon a suitable essay working-title, agreed by the supervisor. Such a teaching strategy encourages student ownership, and fosters academic independence and personal development. However, there are certain learning frameworks that need to be put in place before students can begin to develop these skills. To safeguard against student disengagement and to ensure that they do not feel immediately overwhelmed or 'at sea' by the task in hand, suggested readings, materials, online links and/or podcasts are provided prior to class via the KLS online resource site, Moodle. Drop-in sessions are then provided by the special study leader to discuss the student's plan, to iron out any difficulties with the research and to offer guidance and support. Although working more independently, students - in addition to support from their supervisors - are also given bespoke research training by law librarians in groups or via individual drop-in sessions. In order to promote the KLS ethos of student-centric learning, it is essential that students are provided with the appropriate scaffolds with which to gain an insight into their chosen topic and to assist in focusing on relevant information (Brush and Saye, 2000).
