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Responding To Problems With Electronic Assessment: Inculcating The Ethics And
Standards of The Legal Profession Whilst Providing Students Flexibility To Undertake
Assessment
Introduction ............................................................................................................................................. 1
Educational Theory and The Need for Informed Practice: Assessing Towards a Future of Required
Knowledge and Skills ............................................................................................................................. 3
Social Constructionism and Its Application to the Study of Law: ...................................................... 4
Scaffolding: ......................................................................................................................................... 6
The Principles of Rigorous and Fair Assessment: .............................................................................. 7
Enforcement of Established Guidelines and the Maintenance of Evidence:................................... 8
The Purpose of Assessment: The Bloom’s Taxonomy Alongside Types of Assessment Items .......... 9
Summary - Curriculum Design and Assessment Design Based on Educational Theory: ................. 11
Electronic Assessment: Is It Enough To Only Consider the Existence of a ‘Pros’ or ‘Cons’
Dichotomy? ........................................................................................................................................... 12
The ‘Pro’ Arguments for Electronic Assessment: ............................................................................ 12
The ‘Con’ Arguments Against Electronic Assessment:.................................................................... 13
Resolving the Concerns – The Existence of Middle-Ground Between the Pro- and Con- Arguments:
.......................................................................................................................................................... 15
Examples from Reflection: ................................................................................................................... 17
Introduction to Legal Studies: ........................................................................................................... 17
Torts Law: ......................................................................................................................................... 19
General Comments from Reflections:............................................................................................... 22
Concluding Remarks:............................................................................................................................ 24
Introduction
Legal education around the world has been undergoing significant numbers of reviews over the past
century, particularly the last three decades. The re-developments revolve around both the content
which should be incorporated into the legal education and the manner in which the teaching should be
conducted. Part of these changes, such as shifting legal education to university environments, have
been the result of economic pressures (such as a view that law schools are easy income for
universities, and comparatively cheap to teach), whilst other reasons have been a result of disgruntled
community or governments about lack of standards of professionals. The changes have especially in
countries with a common law legal tradition, however, it is also true of countries which have civil law
or mixed jurisdiction traditions. Major reports have been conducted in Australia, the United States,
Hong Kong and the United Kingdom, reviewing the methods of education and making
recommendations about how changes can be made to improve the education.
At the same time there have been calls to reform aspects of legal education, ubiquitous technology has
been making profound changes to the way in which society conducts business, searches for
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information, interacts and communicates with each other.1 Over time, the technology has even
impacted on aspects of the legal professions’ and law firms’ business practices. Whilst technological
changes have been occurring ever more rapidly, educational and assessment practices, including those
in law, have remained significantly similar to those habits existing at the beginning of the twentieth
(20th) century.2 This is because electronic assessment (e-assessment) is viewed with caution as a tool
of assessing students’ knowledge of a particular subject matter. Concerns have been raised by parts of
the legal profession about e-assessment for various reasons, including perceptions that students may
not be able to get the same level of inter-activity online as being physically present in a classroom
(formative assessment/low stake assessment) and there being a possibility that e-assessment will lead
to greater chances of cheating without invigilators present (summative assessment/high stake
assessment). The concern about distance education or electronic forms of assessment is highlighted in
the United States, where the American Bar Association has for a long time remained reluctant to
recognise qualifying professional degrees (e.g. equivalent to JD or LLB) for the purpose of sitting the
bar exams.3 Other jurisdictions, as well as other academic disciplines, have likewise expressed
concern about electronic assessment, in part due to its unconventional nature and the fact it goes
against tradition. This paper will discuss how, from both a practical and educational perspective, the
concerns are arguably inherently unjustified. The paper will begin with a short discussion of
educational theory, starting with broad purposes of education. The discussion of education theory will
also address theories in relation to the purpose of assessment, including types and levels of assessment
which can be adopted to achieve the desired outcomes of the assessment. Following this, there will be
a short discussion in of the pros and cons of e-assessment regimes, and whether such a dichotomy is
really necessary. The final part of the paper will explore a reflection of how I have used e-assessment
in Australia, and both the positive aspects I have experienced and the problems faced. The purpose,
which will be enhanced through discussion at the Association of Law Teachers Conference, is to
highlight the important of reflection in minimising problems and rectifying problems, especially in
terms of assisting students in understanding the real world ethical issues faced by lawyers.
From the outset, it must be kept in mind that the purpose of this paper is not to resolve all problems of
electronic assessment or provide an exhaustive list of types of assessment which could be modified
and used electronically. Rather, the purpose is to act as a starting point for critical self-consideration.
1
P. Griffin, B. McGraw and E. Care, Assessment and Teaching of 21 st Century Skills (2012, Dordrecht,
Springer) (hereinafter Griffin et al), v
2
Griffin et al, v
3
Bar Association May Ease Online Law School Restrictions, citing Standard 306. Last Accessed online 29
February 2011: http://www.geteducated.com/hot-careers/justice-law-legal-studies/273-bar-association-mayease-online-law-school-restrictions
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Educational Theory and The Need for Informed Practice:
Assessing Towards a Future of Required Knowledge and Skills
Obtaining a law degree is the first step towards an individual possibly beginning a life in a steeped
and practical profession. Traditional legal education, at least in the common law world, has not until
comparatively quite recently, occurred in academic institutions. Rather common law legal education
occurred in the profession itself, such as Inns of Court or articles in law firms, which acted essentially
as apprenticeships. This practice was highly criticised because of inconsistencies in quality and lack
of quality control.
In recent decades, with the shift towards basic qualifications being obtained at universities and higher
education institutions, lawyers have become engaged in doing something which they are not trained to
do within their profession: teach. Although lawyers may have the substantive knowledge which they
desire to transmit, the lack of training or interest in educational theory and practice hinders good legal
education and enables the ‘business as usual’ model of assessment to continue.4 Many of those who
enter the academy draw upon their own experiences of assessment to determine what the assessment
regimes will be for their pupils.5 It could be a fear of change, or the lack of training in educational
philosophies, which leads to this outcome.6 Regardless of the reasons, it is clear changes need to be
made, and the changes need to be made within a constructive dialogue between the academy and the
professional bodies.
Although the traditional forms of assessment in law schools have merit for displaying certain types of
knowledge or skills, there is little to suggest that new methods of assessment and education cannot be
interesting, nor can it be said that modifying old forms of assessment into new forms of delivery is not
without practical consequence for the real world. It is from this perspective that this paper will begin
with some basic elements of adult education which can be a useful starting point in developing a
teaching practice, as well as assessment methods.
4
Donal K. Casey, Mary Dobbs, Alan Greene, James Lawless and Niamh M. Mulholland, ‘Transforming
Researchers into Educators: Some Reflections on the University of College Dublin School of Law Syllabus
Design Workshop 2010’ (2011) 12 German Law Journal (7), 1510, 1511 (hereinafter Casey et al)
5
Casey et al, 1519; see also Victor Callan and Berwyn Clayton, E-assessment and the AQTF: Bridging the
Divide Between Practitioners and Auditors (Department of Education, Employment and Workplace Relations,
2010) (hereinafter Callan et al), 3 which discusses concerns of industry more generally (not law specific) on eassessment, especially in summative/high stakes assessment regimes.
6
Griffin et al, v provides a variety of reasons how technology has not infiltrated the educational settings as yet,
although their research is not particularized to the discipline of law; see also Roelien Brink and Geoffrey
Lautenbach, ‘Electronic Assessment in Higher Education’ (2011) 37 (5) Educational Studies 503, 511
(hereinafter Brink and Lauterbach); Joint Information Systems Committee, Effective Practice with eAssessment: An Overview of Technologies, Policies and Practice in Further and Higher Education (2007), 8
(hereinafter JISC)
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Social Constructionism and Its Application to the Study of Law:
The so-called pedagogy7 in adult education swings like a pendulum between various trends. The
Russian philosopher and psychologist, Leo Vygotsky, developed a theory of learning referred to as
‘social constructionism’. Social constructionism is, like many sociological disciplines and discourses,
something difficult to put a single ‘pure’ definition to, as it is described by scholars in different ways.8
One definition of ‘social constructionism’, offered by Gale Miller and James A Holstein, is that social
constructionism is a manner of analysing issues as a ‘social process’.9 At its most basic level, this
holds true of legal education. Legal education can be viewed as a process of attempting to ‘socialise’
students into a particular community – the legal community. This is done by students learning a set of
‘knowledge, skills and ethics’10 which are peculiar to the legal profession. It is highlighted by
universities gearing their qualifications to meet the requirements of entry to the legal profession. A
core objective of legal education is the ability to go through the process in order to apply law in order
to assist in ordering or bringing about changes in society. The reason this is a social construct is
because there is a need for the awareness by students and graduates of the wider societal application
of their skills and knowledge in law. This awareness is a social construct – an ability to apply the
special skills and knowledge in the community,11 which is becoming more commonly done in
mediums that are not merely on a paper letterhead.
However, the definition offered above is rather limited if viewing social constructionism as merely a
process. A broader understanding of social constructionism is offered by Vivian Burr. Instead of
seeking a single ‘definition’ of social constructionism per se, Burr aimed at looking for common
‘elements’ of social constructionism. These elements are a useful contribution to social
constructionism and for the purpose of this research paper. The elements identified by Vivien Burr
include:

‘a critical stance toward taken-for-granted knowledge’;
7
From the etymology of this word, pedagogy is more relevant to children’s education. When discussing adult
education, it would be more appropriate to discuss andragogy. However, since many people seem to miss the
linguistic precisions, I will generally use pedagogy to limit confusion.
8
Vivien Burr, Social Constructionism (2nd ed., 2003), 2
9
Gale Miller and James A. Holstein, ‘Reconsidering Social Constructionism’ in James A. Holstein and Gale
Miller (eds.) Reconsidering Social Constructionism: Debates in Social Problems Theory (2007, Transaction
Publishers), 5 at 6.
10
Simon Ridings, Lyn Simpson, Betty Leask, Mark Freeman, Prem Ramburuth, Lesley treleaven, Chris Sykes
and Marty Fletcher, ‘Developing Intercultural Competence: ALTC Project Update’ in (2009) 30 (3) HERDSA
News 17 – 19, Last Accessed online 29 February 2011 29 February 2011: http://www.herdsa.org.au/wpcontent/uploads/herdsa-news-303-december-2008.pdf (herein referred to as Ridings, Simpson and Leask). It is
also worth noting that a similar matrix has been developed elsewhere, called the ‘KSAVE model’ incorporating
Knowledge, Skills, Attitudes, Values and Ethics, which is discussed in Griffin et al, 6.
11
Muntjewerff, A.J., ‘ICT in Legal Education’ (2009) German Law Journal (Special Issue: Transnationalizing
Legal Education) Last Accessed online 29 February 2011
http://www.germanlawjournal.com/index.php?pageID=13&vol=10&no=7
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
‘historical and cultural specificity’;

‘knowledge is sustained by social processes’;

‘questioning realism’;

‘historical and cultural specificity of knowledge’; and

‘a focus on process’.12
Social constructionism is also useful due to its flexibility of application. Whilst a law degree does
serve as a pathway to obtaining black letter legal knowledge, it is now widely questioned as to
whether a degree should remain solely focused on ‘black letter’ learning, or solely on the traditional
approaches of teaching law. Some of the research has articulated the need to have the substantive
content requirements more liberal with the introduction of legal knowledge of other jurisdictions or
other disciplines, whilst other research, such as that by Professors Weisbrot and McCrimmon have
suggested there is need to remain flexible and innovative.13
What does this mean for educators of law, especially in terms of assessment regimes? The relevance
is actually quite simple. In determining the assessment regime, it is important to decide:
1. What content (skill, ethic or knowledge) am I trying to teach?
2. What content am I thus trying to assess?
3. What level of engagement or capacity am I trying to assess?
4. What method of assessment am I going to chose to assess this?
12
Vivien Burr, Social Constructionism (2nd ed., 2003), 2 – 10.
Les McCrimmon and Lani Blackman, ‘The Role of Law Reform in the Promotion of Legal Education’ (2005)
at 3, quoting David Weisbrot, “Taking Skills Seriously: Reforming Australian Legal Education” (2004) 29
Alternative Law Journal 266, 270; see also F. Dochy, M. Segers, and D. Sluijsmans, ‘The Use of Self-, Peer and
Co-assessment in Higher Education: A Review’ (1999) 24 Studies in Higher Education (3), 331, 332
(hereinafter Dochy et al) suggest that the new era generally demands graduates who are functional with
problem-solving and professional skills reflective of real-life contexts and ‘demands an adaptable, thinking,
autonomous person, who is a self-regulated learning, capable of communicating and co-operating with others’.
The authors also suggest that is many industries is not always clear whether the driving force is led by industry
or labour market expectations or a drive from the higher education industry itself.
13
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Scaffolding:
Like social constructionism, Leo Vygotsky contributed the notion of ‘scaffolding’ to educational
theory. Scaffolding was developed through the notion of a ‘zone of proximal development’.14
Scaffolding is a metaphor from construction. A particularly helpful discussion of this theory can be
found in the works of Van Der Stuyf.15 According to this paper, the scaffold should be designed as
nothing more than a temporary support structure, that, as a student progresses in their abilities
(whether knowledge or skills), is gradually removed.16 The scaffold should be designed in a manner
which enables a student to develop ‘more sophisticated cognitive systems’.17 In teaching, scaffolds
can take many forms, including ‘models, cues, prompts, hints, partial solutions, think-aloud modelling
and direct instruction’,18 which become gradually less intrusive as the student’s cognitive skills
develop.19 The principles of the scaffolding approach has a direct correlation to the principles of
assessment, whether traditional pencil-and-paper assessment or e-assessment. According to Van Der
Stuyf, McKenzie identified several key principles of the scaffold, including: clarity of directions and
purpose, ensuring students stay on task, clarifies expectations for assessment and feedback, points
students to the important sources and attempts to reduce uncertainty and disappointment.20
Scaffolding is not applicable just to adult education in the area of knowledge development. The
development of practical skills often takes time and repetition. This has been widely recognised, for
example, in sports coaching which relies on the methodologies of scaffolding in ensuring safe
practices are developed when teaching new skills, such as somersaults or aerial movements in
gymnastics, diving and trampolining, or the advancement of lifting techniques in sports such as
Olympic weightlifting.
Thus, the critical point to keep in mind, from the perspective of both scaffolding and social
constructionism is to ensure that there is an alignment between the items of assessment and the
knowledge, skills and/or ethics which one is trying to have the learner achieve. This can be done
14
Murtagh, L. and Webster, M., (2010) ‘Scaffolding teaching, learning and assessment in Higher Education’,
Teacher Education Advancement Network Journal, 1 (2) December. Last accessed online 29 February 2011:
http://bit.ly/tyfJ5M, 7
15
Rachel R. Van Der Stuyf, ‘Scaffolding as a Teaching Strategy’ (2002) (Last accessed online via google
scholar on 29 February 2011)
16
Rachel R. Van Der Stuyf, ‘Scaffolding as a Teaching Strategy’ (2002), 2
17
Rachel R. Van Der Stuyf, ‘Scaffolding as a Teaching Strategy’ (2002), 3
18
Rachel R. Van Der Stuyf, ‘Scaffolding as a Teaching Strategy’ (2002), 3
19
Rachel R. Van Der Stuyf, ‘Scaffolding as a Teaching Strategy’ (2002), 4
20
Rachel R. Van Der Stuyf, ‘Scaffolding as a Teaching Strategy’ (2002), 5. I would suggest it is important to
note that there are educational scholars who specifically believe on the of the goals of contemporary education is
to enable students to deal with surprise, because this occurs in the real world. It is thus imperative, in designing
curriculum and assessment, to take into account competing authorities and purposes and make the expectations
clear to students. This is discussed in Griffin et al, at 23 – 25
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through the process of curriculum design and alignment of assessment tasks, keeping in mind both the
principles of assessment and using the Blooms’ taxonomy as a useful guide towards this alignment.
The Principles of Rigorous and Fair Assessment:
Educational literature is likewise varied in the definitions it gives to the principles of assessment.
However, despite the linguistic differences, there are some constant elements which arise. Griffin et al
identify three key factors to keep in mind for an assessment regime that is fair, which are: 1. clarity of
expectation; 2. highly visible assessment based on standards; and 3. Use assessment to communicate
expectations and publish data to inform decisions.21 A different way of explaining a well-designed
assessment regime is to suggest it is based on a tripartite system of balance using three “c’s”:
coherent, comprehensive, continuous.22 Coherent ensures it is understandable and consistent across all
bureaucratic measures; comprehensive refers to the requirement that all skills and types of knowledge
are tested (me to introduce bloom here), and allows feedback to be given at different times; and
continuous means that there are multiple, ongoing tasks, which permits the tracking of performance,
both for students and as an institution, over time.23 It has also been suggested that the validity of
assessment will be enhanced with the proper development of guidelines and assessment principles
being clearly articulated.24 This is applicable to both traditional and electronic forms of assessment.25
It is widely acceptable that all of these factors can be assisted with constant, or at least some level of,
feedback on assessment tasks.26 But an assessment regime does not just need to be fair, it needs to be
rigorous and suitable to its end goals. For law, we want lawyers who have the knowledge and skills to
operate in a world where they will apply the law in a manner which complies with ethical standards
and is of high quality. A good assessment regime will thus be appropriately rigorous if it includes
multiple pieces of assessment,27 and assess the performance at various cognitive levels (discussed
below in the section on Blooms’ Taxonomy).
What is clear from the discussions on e-assessment however is that the same standards and guides of
traditional assessment should be applied to e-assessment. The key principles do not change with the
21
Griffin et al, 19. The release of information and assessment feedback should not be difficult for lawyers to
grasp, as these are also basic functions/concepts of public law and administrative law and the rule of law.
22
Griffin et al, 23
23
Griffin et al, 23 – 24
24
Callan et al, 27
25
Brink and Lauterbach, 503
26
Griffin et al, 26; see also Dochy et al, 337; see also JISC, 7
27
Nicole A. Buzzetto-More and Ayodele Julius Alada, ‘Best Practices in e-Assessment’ (2006) 5 Journal of
Information Technology Education 251, 255 (hereinafter Buzzetto et al); see also Callan et al, 3 which suggests
that multiple assessment pieces leads to a greater level of validity of assessment.
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format change. Assessment should still be based on the key principles of assessment: validity,
flexibility and fairness.28
The ability to maintain a fair and rigorous assessment regime is an ongoing process. It needs to be
systematically checked and adhered to. Quality assurance requires the review of current assessment
policies to ensure that e-assessment can be appropriately attempted and assure the main principles of
assessment are achieved.29 The quality assurance checks and reviews can, and should, occur on
several levels: individual educators, departmental reviews and institutional reviews. The reviews
should be ongoing and not, for example, just once every five to ten years.
This is also where a constructive dialogue is necessary between the academy and profession. If the
profession expresses concern about e-assessment, such as it may promote cheating, the academy
involved should be able to point to institutional guidelines which demonstrate how this concern has
been addressed. It is not helpful to complain about non-acceptance of e-assessment by admission
bodies if there is not a pro-active attempt to alleviate the concerns they may express.
Enforcement of Established Guidelines and the Maintenance of Evidence:
The importance of guidelines is not just having them on paper in a positivist model of regulation.
There would be few educational institutions which could not point to having a clearly written set of
guidelines on assessment. These guidelines usually include information about the requirements of
assessment, for example, scales determining how marks are to be understood and distributed (e.g.
from high distinction through to fail; A through to F) and what types of assessment are appropriate for
various stages of an education (e.g. some people may consider inappropriate to expect a student in
first year law to be able to write the equivalent length of a doctoral thesis in one semester). Other
guidelines will exist about academic integrity for example with many universities, at least in
Australia, requiring students to sign a cover page declaring the work to be theirs and setting out
penalties for collusion, plagiarism and other forms of academic misconduct. However, it is not enough
that guidelines or policies exist. The policies need to exist and be applied. Failure to apply the policies
in electronic forms of assessment is as detrimental and problematic as failing to apply the policies in
traditional forms of assessment. This is important in terms of fairness for individual students, the
entire student cohort and the professions themselves. Consistency is one key to maintaining the
integrity of e-assessment alongside the traditional counterparts. The legal profession and academic
institutions can re-articulate such guidelines for electronic forms of assessment, but the institutions
must then also be willing to enforce these new guidelines.
28
29
Brink and Lauterbach, 503
JISC, 19
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The Purpose of Assessment: The Bloom’s Taxonomy Alongside Types of
Assessment Items
Relying on the metaphor of a scaffold, it becomes clearer how it is relevant to assessment in a degree
program, such as law. The purpose of the assessment should be to act as a set of markers to show
adequate knowledge, skills and ethics in particular aspects of the subjects studied. For example, a
lawyer should have a basic understanding of substantive laws, procedural laws, public and private
laws and the ethics of the profession. But at what level does the skill or knowledge need to be
displayed? Bloom’s Taxonomy is particularly helpful for this. Bloom’s Taxonomy proposed various
levels of intellectual engagement with skills and knowledge, ranging on an increasing scale or
pyramid from knowledge, comprehension, application, analysis, synthesis and eventually,
evaluation.30 The elementary learning objectives of knowledge can be achieved through the ability to
repeat or describe the knowledge. A slightly higher level of cognition is demonstrated through a more
difficult task of analytical ability which requires a learner to be able to distinguish between competing
issues or prioritise arguments. The most difficult learning classification, ‘evaluation’, occurs where
the learner is able to weigh up competing arguments, make recommendations.
At the same time as considering the Bloom’s Taxonomy, it is appropriate to start considering the
assessment items for a subject, at which point the questions needing to be asked include: ‘what is the
purpose of this assessment piece?’, ‘what level of understanding of subject matter or process am I
seeking the students to have?’ and ‘what types of assessment could I adopt for this purpose?’. For
example, from my experience as both a student and lecturer, there are several common types of
assessment pieces used in Australian law schools:
1. substantive and summative written assessment pieces including essays in jurisprudence,
procedural documents in civil procedure and evidence and exam papers in contract law and
constitutional law;
2. substantive and summative oral assessment pieces, including moots for criminal law and
administrative law or oral presentations in jurisprudence and medical law;
3. summative tutorial participation, either through oral contributions in a classroom (physical
or virtual) or written contributions on a blog or to a tutor;
4. short summative assessment pieces, such as quizzes and short answer tests;
3. formative assessment, such as tutorial participation, quiz
Once you have decided on the variation of assessment pieces, the pragmatic questions needing to be
asked are ‘why am I adopting this particular assessment strategy?’, ‘how does it rubric akin to
30
Buzzetto et al, 253 – 254
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Bloom’s Taxonomy?’. Another way to put the questions would be to ask what types of assessment
pieces may fit into which classification?
Once we have determined the types of assessment pieces and what we are seeking the students to
achieve through the type of assessment pieces we have chosen, it is time to consider which of these
assessment pieces may be ‘electrified’ for 21st century application to become e-assessment, and which
types of e-assessment exist which we have not previously considered. At the lower levels of Bloom’s
Taxonomy, such as knowledge and comprehension, may be simple multiple choice quizzes where
students are required to select either correct or incorrect answers from a group of answers provided.
Such an assessment piece, traditionally undertaken with paper and pencil, however is only capable of
showing a low level of understanding and is thus most likely suited to ensuring students understand
the absolutely basics of a topic: for example, what are the elements of a particular offence in the
criminal code or the elements required to form a particular tortious or contractual obligation.
An essay need not take the form of solely a word-processed document. Indeed, even in law, such an
essay may be uninspiring and not facilitate a high level of learning outcome. So why not re-define the
bounds of what you mean by essay OR at least, the manner in which an essay is to be presented? For
example, are you seeking an essay which merely regurgitates a topic, or one which presents an
argument which is comprehensible and comprehensive? Are we seeking an item which is advanced
enough to push a public debate in a way which is accountable, or merely one which seeks to liven up
our staff room discussion topics? If it is the former, one such possibility for adoption of assessment
type is through the adoption of building a ‘blog essay’ where students publicly compose an essay on a
blog.
Oral presentations and moots also need not be confined to a classroom environment. In practice, it
would be unethical, and potentially quite detrimental to a client’s interests, to attend court or a
negotiation without preparation. If a lawyer works in a governmental or non-governmental
organisation, they may need to give interviews or appear before televised proceedings. Such events
are also likely to have required preparation to ensure the organisation is represented in a positive light.
As such, the notion of electronic presentation can be modified for students, combining practical
generic skills, such as media presentation and research skills, together with traditional skills of
advocacy and public speaking. Students could be required to make short video presentations. Today,
there is a greater availability of applications and software for private use. Some software can be
obtained ranging from basic freeware utilities, to other applications developed by tech-savvy
individuals wanting to make such software at affordable prices, right through to the commercial
products with all sorts of bells and whistles capable of emulating a small movie production house. The
level of engagement on the Bloom’s Taxonomy would be quite high – students would need to not only
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be able to regurgitate information – but also be able to evaluate what they are saying, before, during,
and after, saying it.
Summary - Curriculum Design and Assessment Design Based on Educational
Theory:
Curriculum design can be used in terms of both individual subjects or entire degree programs. For the
purpose of this paper, I will discuss design in terms of individual subjects, but note from the outset
that such alignment would have some levels of deficiency if done only in individual subjects and not
simultaneously across an entire degree program.
Once content is determined, it is important to determine how we want students to display their skills
or knowledge in relation to that content. Both the Ridings, Leask and Simpsons’ matrix and the
KSAVE model are useful matrixes to refer to. In addition, it is useful to keep in mind is the Bloom’s
Taxonomy because it provides guidance as to different types of cognition. Additionally, it provides
key analytical words to enable teachers/lecturers to provide students with instructions which are clear.
The third step is to choose the assessment method and whether this method includes e-assessment, or
whether one wants to remain tied to past practices. Flexibility and innovation can both be advanced
through the adoption of electronic forms of assessment, either modifying traditional techniques
(exams, essays, oral presentations) or presenting entirely new forms of assessment techniques (e.g.
blogging). Remember, a well-designed assessment regime will be based on a tripartite system of
balance based on three “c’s”: coherent, comprehensive, continuous.31 In adopting new practices,
again, it is important to understand why the new practices are being adopted, and also be able to
justify the new practices. For example, if considering a coherent system of assessment, we can
articulate that it ensures it is understandable and consistent across all bureaucratic measures;
comprehensive refers to the requirement that all skills and types of knowledge are tested (me to
introduce bloom here), and allows feedback to be given at different times; and continuous means that
there are multiple, ongoing tasks, which permits the tracking of performance, both for students and as
an institution, over time.32
31
32
Griffin et al, 23
Griffin et al, 23 – 24
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Electronic Assessment: Is It Enough To Only Consider the
Existence of a ‘Pros’ or ‘Cons’ Dichotomy?
After determining what is to be assessed (knowledge, skills or ethics, or a combination of two or more
of them), it is important to determine what type of assessment will be used. When considering various
forms of assessment, such as the adoption of electronic assessment, it could be quite easy to fall into
the trap of ‘polemics’ – it is either ‘good’ or ‘bad’, ‘all’ or ‘nothing’ – essentially a game which is
sometimes referred to as a zero-sum analysis. Such deliberations are remarkably uncritical, but can be
useful in fleshing out the middle points of a problem.
The ‘Pro’ Arguments for Electronic Assessment:
There are numerous arguments which can be advanced in favour of adopting electronic forms of
assessment at universities or adult educational institutions. Some arguments are purely economic. For
example, in smaller institutions where there are budget constraints, e-assessment can enable
‘automated’ marking, such as multiple choice quizzes for assessment. Other arguments are pragmatic,
such as the provision of flexibility, especially where the student population undertake their studies on
a part-time basis and try to fit the demands around their employment or family commitments. For
example, providing assessment questions to students in a PDF or word processing document to
complete and re-submit at a specified time.
A third argument for electronic assessment is ‘technological literacy’.33 Literacy has been represented
by Lankshear and Knobel as the ‘Socially recognized ways of generating, communicating and
negotiating meaningful content through the medium of encoded texts within contexts of participation
in Discourses.34 Based on this, and other research, Erstad suggests that digital literacy could be
understood in a way to refer to the competencies with reading, writing and various other functions of
33
Casey et al, 1520; see also Sharon Christensen and Sally Kift, ‘Graduate Attributes and Legal Skills:
Integration or Disintegration?’ in (2000) Legal Education Review 207; Terry Hutchinson, ‘Education the
Transnational Lawyer: Globalisation and the Effects on Legal Research Skills Training’ in (2006) Proceedings
Australasian Law Teachers Association (ALTA); For example, Terry Hutchinson, ‘Education the Transnational
Lawyer: Globalisation and the Effects on Legal Research Skills Training’ in (2006) Proceedings Australasian
Law Teachers Association (ALTA), 1 – 24, at 15 – 18. Some authors do look at a slightly different perspective
which is not entirely reliant on the standard trichotomy of skills, knowledge and ethics, although do highlight
that traditional discussion with reference to government documents. See Afshin A-Khavari ‘The Opportunities
and Possibilities for Internationalising the Curriculum of Law Schools in Australia’ in [2006] LegEdRev 5, at 2nd
page of document. Further on, he relies on the matrix of skills, ethics and attitudes similar to that offered by
Ridings, Simpson and Leask. In this, there are fleeting references to foreign languages (‘multi-lingual
environments’), but interestingly enough, in the discussion, recognises ‘global citizen’ but does not expand into
notions of ‘identity’.
34
Ola Erstad, ‘Citizens Navigating in Literate Worlds: The Case of Digital Literacy’, in Michael Thomas (ed.)
Deconstructing Digital Natives: Young People, Technology and the New Literacies (2011, Routledge) 99 at 106
(hereinafter, Erstad)
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using technology in communication.35 In the 21st century, it is imperative, even in law, that graduates
have the capacity to work effectively with electronic resources, including the internet and media
technology, to both find information and communicate results. Adopting some forms of electronic
assessment assists in students developing these skills, or more commonly, enhances the skills of the
younger generation of learners who have already become accustomed to the electronic world.
From an educational perspective, it is almost universally argued that feedback on assessment is
important for learning, and not just to give an assessment of the learning to date.36 Online assessment
can be used to achieve both outcomes. Basic online assessment items, such as quizzes/multiple choice
tests, can assist one to examine trends in what students do and do not understand and thus re-direct
teaching to that area. If students receive instantaneous, or near instantaneous feedback, with a
numerical mark (or answer guide), students are more likely to potentially review where they went
wrong than if they are required to wait several weeks for feedback, which is then no longer useful to
use.37
A final rational could be considered selfish on the part of an academic. Marking assessments,
especially long assessment pieces such as exam scripts, is a tiring exercise. The exercise can be made
more difficult with sloppy or incoherent handwriting, brought about by the dying art of penmanship or
time pressures students experience during invigilated exams. Having assessment pieces which are
word processed makes marking easier, thus less frustrating and perhaps even more enjoyable. The
assessment pieces can be printed and re-scanned with feedback, or can be marked electronically,
depending on the technological literacy of the academic.
The ‘Con’ Arguments Against Electronic Assessment:
The arguments against electronic assessment are equally numerous. The categories are fairly
establish: concerns about expenses; concerns about security or cheating; concerns about invalidity of
assessment and a concern about lack of appropriate engagement.
In relation to the economic arguments, it becomes obvious that there is a level of fallaciousness
thinking e-assessment is cheaper merely because it can ‘mark itself’. E-assessment often requires
large amounts of preparation time. As such, what may be saved at the back end of assessment in terms
of costs may be transferred to the front end of the curriculum in designing the e-assessment pieces in
the first place, which is particularly burdensome when academics are required to continue with a
35
Erstad, 106
Casey et al 1523, citing Australian research by Mary Keyes and Richard Johnstone
37
Murtagh, L. and Webster, M., (2010) ‘Scaffolding teaching, learning and assessment in Higher Education’,
Teacher Education Advancement Network Journal, 1 (2) December Last accessed online: 29 February 2011
http://194.81.189.19/ojs/index.php/TEAN/issue/view/17/showToc
36
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Ross Ashcroft
particular course and prepare an entirely new assessment regime.38 Likewise, whether or not autocorrect is available is dependent upon the type of assessment regime adopted. Multiple choice
questions can auto-correct, but essays, blogs, video submissions still require the same human
interactions as traditional varieties of such assessment pieces. As such, at the early phases of adopting
or moving towards some level of adopting electronic assessment, it is rightfully permissible for some
level of angst to be shown towards cost implications.
A second, and probably the most commonly raised concern in relation to e-assessment, is the fear of
cheating and plagiarism.39 It will not be immediately obvious that students themselves have submitted
work which they have themselves completed. For example, traditional examinations have required
students to sit in a room where there is an invigilator, either independent of the subject or the lecturer
of the subject, to ensure students do not talk, swap notes, and are undertaking the assessment piece as
an individual. As such, without an invigilator present, there is a legitimate concern, that students may
not be undertaking the assessment pieces alone or may not be undertaking the assessment pieces at all,
but instead having a third party (e.g. relative who has already completed the assessment previously) to
do the exam on their behalf. This has an added detriment, especially in law, where ethical standards
are an important aspect of admission to the profession, as much as substantive knowledge of the legal
materials.
A further con of electronic assessment comes in terms of the ability for students to simply submit preprepared answers for questions. For example, students have an ability to merely ‘copy and paste’
answers of use a ‘CTRL+ F’ function on the computer, thus students will not actually really know the
subject matter being assessed. What may be, in my mind from what I have seen in my position as a
lecturer, more problematic with such forms of cheating is that there is an ever growing problem that
students may become reliant on inappropriate sources of information for their answers (e.g.
Wikipedia), use materials from the wrong jurisdiction (e.g. American law) because it is more easily
accessible online, or rely solely on electronic handouts provided by lecturers (e.g. powerpoints).
A forth perception, one which is prevalent in America, is that students may not be able to get the same
level of inter-activity online as being physically present in a classroom. This has been raised as a
concern among those who object to both distance education, although often fails to draw a distinction
between substantive and formative assessment. However, it may be a valid object where summative
assessment tasks occur when students are awarded marks for tutorial or class participation. A final
concern which I shall raise, for completeness sake, is that there is a concern for e-assessment that
38
39
JISC, 17
Griffin et al, 28; see also Callan et al, 20
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there may be computer failure. This concern may impact on aspects of fairness and validity and is
thus a serious concern for students.
Resolving the Concerns – The Existence of Middle-Ground Between the Pro- and
Con- Arguments:
The constant accepting of a dichotomy revolving around mere pros and cons creates a mentality that
there can be only one possible answer – either full adoption of e-assessment or full rejection of eassessment. This is a false outcome for all parties involved. The dichotomy does serve as a useful
starting point however for dialogue between key stakeholders. The first part of discussions between
stakeholders should be to raise concerns, but the more important aspect of constructive dialogue is
finding solutions to bring the parties to a common ground.
From the perspective of dialogue, the most important aspects any pro-argument for e-assessment
regimes is to prove to disbelievers that there is a sound educational reason for the adoption AND the
e-assessment regime is as valid as any traditional regimes of assessment. For example, they could
demonstrate how online quizzes can be enhanced to reduce opportunities for cheating, including that
they can have adaptive releases, randomisation of questions or answers to reduce the chance for
cheating.40 Another form of cheating, both in e-assessment and paper based assessment is plagiarism.
Proponents of e-assessment should demonstrate the vast array of technology and computer
programmes which exists to filter out plagiarism. The same proponents would also be wise to remind
themselves, and objectors, that whilst technology can enhance security of assessment, ‘students who
want to cheat will always be one step ahead’,41 although this is no different in a digital world to a
paper based world. It would also be helpful to keep in mind that whilst e-assessment may be an
excellent way to assess a student, there are no technological methods to prevent plagiarism. For
example, plagiarism can be minimised by some level of specificity, one can construct assessment
pieces which require specific information to be adopted from specific materials, minimising the
opportunity to purchase assessment items online. In other words, technology may not always be the
answer. Those for e-assessment must also be able to alleviate concerns relating to technological
failures and the impact of fairness. For example, answering questions about what fail safe options are
offered in case of technological failures? Do these apply only on campus for e-assessment, or do it
apply to people sitting e-assessment tasks remotely? For example, it is clear that some universities
offer a paper based assessment to check on what has been undertaken.42 The fail-safe options must be
fair to individual students and an entire student cohort simultaneously.43 Additionally, and
40
Callan et al, 21
Callan et al, 20
42
JISC, 28
43
For example, during one failed assessment item, a student claimed he had suffered a technological failure.
The student was set to lose 10% of his marks because he could not adduce evidence (such as records from a
41
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strategically, it may also be worth pointing towards any methods of mandatory continuing
professional development or continuing legal education practices which have been adopted by the
profession. It would be remiss of a profession to accept CPD or CLE through e-assessment and selfassessment for practitioners if not willing to accept it for the qualifying professional certifications.
For proponents of the con argument for rejecting e-assessment, it is imperative to maintain an open
mind. For example, an outright rejection of assessment for all institutions due to its form is not
sustainable if the core principles of assessment can be demonstrated: 1. clarity of expectation; 2.
highly visible assessment based on standards; and 3. Use assessment to communicate expectations
and publish data to inform decisions.44 Some universities may excel in offering well designed eassessment regimes, and other universities may not be able to demonstrate such awareness.
Regulatory bodies could instead insist on developing a partnership, although this of course may be
difficult in a highly competitive market for student money. Whilst maintaining a healthy suspicion, a
middle ground could also be put forward to suggest spot auditing, permitting institutions to drive
towards innovation but with an ever present potential for compliance to be checked. Where regulatory
bodies have suspicion, they may also consider provision of resources to academic institutions willing
to trial e-assessment. There is a dual benefit here: the regulatory body, or funding body, will be able to
control aspects of the role out of e-assessment (e.g. limiting the number of subjects which can use it)
and collect data about both the benefits and problems of the e-assessment trial, whilst the educational
body is able to have allocation of resources – resources which can assist in effectively preparing
assessment to meet the needs of the 21st century.45 Another advantage of such collaboration would be
the chance for regulatory or funding bodies to monitor the enforcement of guidelines in terms of
assessment regimes, whether electronic or traditional assessment. For example, I know of numerous
occasions in Australia where instructions have been handed down from high level administrators in an
academic institution to not penalise plagiarism in a formal sense which directly contradicts
requirements of the legal profession, where people seeking admission must admit any formal sanction
or penalty.
provider of utilities in his area) that there was indeed power failure. Under instruction from the most senior
member of the discipline, after a complaint from the student’s parent over the alleged unfairness to reduce the
marks, the student was marked against 90% of the assessments for the entire semester rather than 100% of the
assessable items. This ended up giving him an actual advantage over all other students. It was a clear breach of
university policies, but one which was implement from above.
44
Griffin et al, 26; see also Dochy et al, 337; see also JISC, 7
45
Griffin et al, 11
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Examples from Reflection:
Teaching in an online environment was an interesting challenge to embark upon. Having already
previously had an interest in educational theories, it was an opportunity to transfer ‘theory’ into
‘practice’ teaching several first year law courses. I will discuss some of the subjects I have been
involved with, including introduction to legal studies and the two compulsory torts’ law subjects. The
reflection is based on observations and experiences to date, including comments from individuals who
have specialised in education (as opposed to law), other legal academics (for example, in my first
academic position in a university, I was subjected to a irregular audit) and against the educational
theories discussed preceding this section.
Introduction to Legal Studies:
The assessment regime was already set up to some extent, so it was more content (e.g. subject matter,
knowledge requirements) and format (e.g. number of assessment items) that had capacity to be
reviewed in the delivery of this unit. I will stick to changes made to assessment, rather than
knowledge requirements, although there was a slight overlap. The regime I decided upon, in the end,
was as follows:

15% online quizzes, made up of two quizzes (one worth 5% and one worth 10%);

5% report on court visits (submitted electronically);

20% research essay (submitted electronically);

50% final invigilated exam.
The regime was set out in the unit outlines which are provided to all students electronically and
discussed in the first lecture. The first online quiz related to ‘plagiarism at universities and in the legal
profession’ and gave students five questions to answer. There was an easy five marks for students up
for grabs – a small sacrifice to make in the interest of academic integrity. All questions were multiple
choice, with some questions being based on materials linked into the paper. This quiz was required to
be completed before any other assessment item could be attempted, and the blocking of attempts was
controlled by adaptive release technology. Students had unlimited attempts to achieve the required
mark – 100% – before the adaptive release would work. The assessment item was successful, so I
thought, and adopted into several other subjects at the university, both in the law school and more
widely, after one of the librarians enjoyed working with it. There were multiple purposes behind the
use of such a quiz: first, to enable students to familiarise themselves with online quiz technology;
second, to familiarise themselves with the expectations of universities and the legal profession about
the seriousness of plagiarism; and third, to collect evidence that students have been taught what
plagiarism was.
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The assessment was generally successful. All students, some after many attempts, were able to learn
what constitutes plagiarism and what the consequences of plagiarism are according to the university
policy. For example, where academic misconduct is clear, the guidelines usually permit penalties,
ranging from a loss of marks on a particular assessment piece, to a fail for the entire subject, or severe
disciplinary actions, such as expulsion from a degree programme or the cancellation of a degree.46
Despite all other assessment items depending on this assessment item, students still attempted to cheat
on written assessment pieces submitted electronically: both the court visit report and the essay. It was
clear they knew what plagiarism was – they had spent time doing the quiz – and either already knew
answers (so scored 100% immediately), or managed to teach themselves what plagiarism is about
(through the attached reading exercises). Despite the university rules and policies, faculty
management was unwilling to enforce disciplinary guidelines for plagiarism and instead implemented
faculty guidelines, which communicated via email, read that where assessment has information which
was suspected of plagiarism, the suspect sources of information should be disregarded and the rest of
the paper marked on its merit. This leads to several reflective questions:
a. If an assessment item is partially plagiarised, is it fair on the student submitting the
assessment item to receive marks for the non-plagiarised parts, or does the entire assessment
item become suspect?
b. If it is fair on the student submitting the assessment item, is it fair on the entire student cohort,
to permit what is effectively deemed ‘partial’ plagiarism?
The second quandary experienced in the teaching and assessment of these classes related to
technological failure. Essentially, the following question arose: if a student claims there was a
technical failure during them sitting the assessment remotely, how best do we proceed? This occurred
in relation to the second quiz worth 10% of the grade. After most students had completed the quiz,
and the deadline had passed, contact was made with students who had failed to submit the quiz. Some
students admitted they genuinely forgot the deadline – it can happen to everyone. Of course, some
students had said entered the quiz but experienced a technological problem, but planned to contact us
in the future. This leads to several potential considerations: if quizzes are used to assist in immediate
feedback (e.g. numerical grade), it may delay release of marks to other students; if a student does not
contact a lecturer or teaching staff immediately upon failure, it could be they opened the quiz and
46
There are also examples where, subsequent to a degree being awarded, the degree has been required to be
handed back. For example, German Minister Mr Guttenberg was required to hand in his PhD over allegations of
plagiarism. This, although harsh, assists in acting as a sufficient warning on the standards universities should be
adopting to maintain the integrity of their offerings.
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realised it was too hard, so hoped to use ‘technology failure’ as an excuse, essentially gaining an
advantage from having see the questions. I prefer to err on the side of caution and see such an excuse
as a modern day version of ‘the dog ate my homework’, and thus exercise risk management in favour
of the greater good. But, genuine concern must also be shown. If there is a technological failure, or
potential failure, what strategies can be implemented to limit the exposure to risk, both for the student
and the teaching staff?
In this instance, the following semester saw a reform of the quizzes. Whilst the overall marks
available remained 15% for quizzes, the number of quizzes was increased from two to three, with
each quiz accounting for 5%, rather than one quiz of 5% and the other 10%. The solution provided a
fairer playing ground for students to an extent. Rather than risking 10% of assessment due to
technological failure, the most marks which could be lost was 5%. The number of complaints I
received from students having ‘technological failures’ reduced (although not entirely), indicating that
there was a middle ground which could be compromised on for this subject. Interestingly from a
marking perspective, it did not change the overall distribution of marks – the new students neither
outperformed or underperformed the previous students. Essentially, it is important to consider the
allocation of marks not just against the learning objects of the assessment item (e.g. the ability to
recognised basic facts in a multiple choice quiz), but also against notions of risk management. Where
students, or observers, feel the risk is higher with e-assessment, they may have a predisposition to
caution or suspicion.
Torts Law:
Having experienced both the joys, and pain, associated with electronic quizzes and e-submission of
assessment, taking on new subjects to teach was a worthwhile task, and provided an opportunity for
reflection. The courses became available due to staff turnover, a common occurrence at all academic
institutions and workplaces, so carpe diem for the new opportunities. The two compulsory torts’
courses were generally well structured, a credit to the previous lecturer, who had previously used two
types of e-assessments (multiple choice quizzes and online tests). The regime was quite intense: three
online quizzes (each worth 20%) and four online tests (worth 10% each). The difference between the
quizzes and tests is as follows: a quiz was defined as the multiple-choice recognition of key laws or
concepts, where the test was substantive answers written into text boxes online. Both types of
assessment had specific timeframes within which to complete the assessment items. The timeframes
were referred to as deadlines (an important definitional issue to consider, both individually and
institutionally).
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Ross Ashcroft
Due to the constant nature of assessment in the previous offerings, where essentially the students
faced summative assessment almost weekly, I determined it was appropriate to modify the number of
assessment items, reduce the frequency of the assessment items, and also introduced an assessment
item for tutorial participation, to encourage ongoing and consistent learning with as much high-stakes
pressure. As such, there were two online quizzes (each worth 20%), tutorial participation for ten
weeks (totalling 10%, or 1% per week) and an electronically submitted exam (with a two day
deadline, worth 50%). Thus, the students maintained a mix of various types of assessment, a key to
ensuring there is a level of fairness to all students, although there was a slight angst in increasing the
value of quizzes in case of ‘technological failure’ excuses coming back to haunt me – although this
did occur in a way that became unexpected. During my offerings of the torts’ subjects, rather than
relying on a marking guide, I also adopted a marking rubric for assessment (after developing and
modifying such a rubric for a third course with a great level of assistance from an experienced
educator and assessor). The rubric was used from week-to-week in tutorials to guide students through
answering problem-based questions similar in content and quality to the exam questions. This
scaffolded the students towards the exam and familiarised them with techniques to transfer an
ordinary answer into an answer which is comprehensive and complete.
The first problem experienced – and learned from before taking on the second offering of torts – is to
be wary of adopting previous tasks without comprehensively analysing the data of the previous
offerings, as well as the actual content of the assessment tasks (presuming you are able to become
privy to such information). The problem reflected upon relates to the issues experienced when
developing new assessment regimes whilst undertaking previously allocated teaching duties or
assessment tasks. The results of one of the first quizzes, a combination of two previous quizzes, saw a
dramatic number of students achieving between 80% and 100% on the assessment task set. There was
also a reasonable number of students who were at the other end of the spectrum. The ‘overperformance’ in grades raised one of several possibilities in my mind. First, that the assessment task
was far too easy and thus inappropriate for the level of education, and some students merely struggled
with the concepts. Alternatively, students had collaborated on the assessment items, something which
was unclear from submission times and dates of the assessment items, whilst other students had
completed the assessment items alone. Or a third possibility, there was some trick which some
students had realised and I was unaware of, and of course, other students were likewise unaware of.
To my discomfort, I was informed by an honest student it was the last of these options, and verified
their claim when one of their peers expressed outrage they were not informed of the trick (and had
performed poorly). There was indeed a trick to the assessment pieces which was not on the face of it
clear. The trick – as explained to me – was that if students had two computers opened simultaneously
(one with the online quiz and one with the powerpoint slides), then the use of ‘CTRL + F’ on the
keyboard would enable the students to eliminate all answers because the quiz questions were exactly
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Ross Ashcroft
written as on the powerpoint slides. If the answer came up on the powerpoint, it was correct. Students
who had taken the previous offering of one of the torts units were aware of this trick, hence they
achieved genuinely high scores, and those who were undertaking torts for the very first time were
unaware of these tricks, and were slightly frustrated by the use of online quizzes. The only possible
solution, apart from moderation at the end of the semester, was to ensure this sort of assessment piece
was not re-incorporated in future items or subjects. The solution proffered by myself, although a
difficult and time consuming task, is to make sure there can be no ‘electronic advantage’ in the
questions. For example, all questions should essentially come from direct readings from a textbook or
journal articles for the topics being assessed, not from powerpoints. This would be easier if pools of
questions were developed between staff members or institutions or the publishers themselves. When I
adopted this solution, I noticed that there was not a skewed curve towards one group of students, but
rather, a more even distribution of marks across the student cohort.
As alluded to in the paragraphs above, one of the other issues encountered in this subject was a
definitional matter of the word ‘deadline’. Deadline, to the way I understood it and eventually redefined it explicitly for the current offering of the subjects, is the ‘final time which an assessment
piece must be completed by’. This is in line with contemporary meanings of the word – if a deadline
is imposed by a judge, they mean finalise it or face consequences; if bills are due by a particular date,
that means the last date they must be paid by; and likewise, if there is a deadline for a particular job,
applications will ordinarily not be considered, unless specified in the job advertisement. When
numerous students missed the deadline, I was able to ascertain that some of these students had not
completed the assessment by the deadline, but rather, had begun the assessment piece prior to the
deadline passing. Their rational, in a flurry of emails and blog posts, was that in paraphrased terms
(not specific quote) ‘other lectures do not define deadline so strictly’. I came to learn there were at
least two other definitions of the word deadline in the faculty. The two definitions were: first, an
assessment item must be begun before the deadline, and secondly, a deadline is considered to exist
always at midnight (unless specified earlier). There are possibly more definitions across the entire
institution, although if there are, I am not become aware of these through experience or observation.
Some student responses to the blog were unsympathetic, akin to basically stating ‘a deadline is a
deadline, you missed it and you suffer the consequences’. Although unsympathetic, the view reflects
the real world in terms of consequences. The other type of posts, either blog or emails, was that it was
unfair to have differing understandings of the term ‘deadline’ because students are reliant on this.
My submission would be as follows, although it appears to differ from my more senior colleagues and
direct supervisors. A deadline is a final time. Death is permanent, unless we decide to explore the
philosophies of metaphysical analysis. The penalties for missed assessment in traditional style
assessment pieces, such as an exam with a specific time slot, can be harsh in the eyes of a student. A
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Ross Ashcroft
mark of zero is ordinary. This is an excellent opportunity to reinforce to the students, however, a
sense of importance of deadlines. For example, my first lecture in all subjects, always notes the
consequences of a missed deadline in litigation – a high stakes game. To clarify the high stakes at play
in litigation – I point out statues of limitations – and the consequences of missing a deadline where
there is an enforceable statute bar. To educators, who have potentially not seen or heard of the rigidity
of aspects of the legal profession, this is ‘brutal’. However, in law, deadlines are commonplace as an
ethical standard which must be learned and accepted.
Despite the apparent brutality, enforcement of deadlines or assessment requirements can be minimised
through compassion, another feature of contemporary law. In traditional assessment items, students
may be given a second chance at that assessment piece IF they fail the subject overall, but the second
chance would mean the student can receive a maximum overall grade at a lower level, regardless of
their performance on that exam (for example, a pass on the Australian scale). If the principle of
consistency is to be applied, and time management and ethical standards are something we desire to
instil in our graduates, the same approach must be taken to e-assessments. The failure to submit an eassessment task by a deadline must be the same as its traditional counterpart – an examination. If the
compassion is to be shown, and there may be legitimate reasons to show compassion, then the same
principles must also be applied in the compassion circumstances, and that is permit the assessment,
but on the basis that the marking scale does not permit higher levels of achievement recognition. If
one does not transfer these same standards in traditional assessment to the new form of assessment,
one undermines the integrity of assessment regimes entirely.
General Comments from Reflections:
In the examples discussed above, there has been a level of detail which is important to consider.
Learning occurs at both ends of an assessment regime – the assessor and the assessed – an it is
important the assessor takes time to reflect on what they can do to tighten their assessment to ensure it
meets the requirements of fairness and validity. There are some other problems identified through my
experiences to date. These problems are highlighted with the roman numerals. As time has
progressed, I have attempted to adopt different solutions, which are addressed under each problem.
i.
Problem with feedback in developing ‘pool’ questions for multiple choice assessment;

Ensure that the quizzes are opened for a set period of time, with the total duration of the
quizzes or assessment item, being relatively short (but with some level of flexibility to
cater for time zone issues, especially in a country the size of Australia with multiple time
zones). This way, feedback can be provided more rapidly, increasing the usefulness of the
feedback.
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Ross Ashcroft

Ensuring there are multiple pools of questions available. This is important in instances
where a small number of students have been given an extension to submit the assessment
item, which would hold up the feedback to the entire cohort if waiting for their
completion. If one provides the feedback too early, the opposite risk is run, and that is the
‘late’ student will have an added advantage of potential advice from the teaching staff.
ii.
Students making ‘mark-swap’ deals for one assessment item to another:

Make assessment items vary in weight assigned (reduces students ‘swapping’ marks by
removing temptation to give away marks);

Reduce options of deadlines. This means students cannot swap information to enable
extra study time. The down side to this solution is it does reduce flexibility, which has
significant advantages in adult education.

Mixing up clients/scenarios based on random name allocations. This enables staff
members to ensure students are not aware, in advance, of which questions they will
receive. It removes deals being made between students as it is unclear who is the ideal
partner to made a deal with.
iii.
The computer ate my assessment. This occurs where the student claims to have had an
‘accidental’ opening of assessment items or ‘system crash’ part way through the assessment
item once already opened – and there is little way in which to verify how many of the
questions and answers were seen, or whether they managed to print the assessment item out.
The solutions thus far include:

Password protections and acknowledgements – in other words, students must enter a
password to designate they are ready to enter the assessment piece – preventing them
from ‘accidentally’ opening the quiz;

Instructing students maintain a piece of paper next to them during the quiz and write
down the question number (e.g. 1) with their suggested answer (e.g. answer A). This way,
if a student claims to have endured a system crash, it is possible to award marks for the
answers they can verify with their notes;

Time stamping assessment items. This means that when an assessment item is opened,
one can track at what time they entered, how long a student has been in the exam time for,
which questions were attempted etc. If a student is genuinely concerned, they will contact
you immediately upon the failure and provide information. It also removes the students
contacting you two to three days later saying words to the effect that ‘I had a problem
with my computer during the quiz and I need to re-sit it’. This may mean they have had
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additional time to revise the materials with specific questions in front of them and thus
give them an added advantage over their peers.
As time has progressed, various solutions have been identified and adopted. These solutions have
required continual monitoring and modification, however, they appear to be achieving some level of
success. In practice thus far include:
i.
Plagiarism quizzes can be used to gather data and to ensure students know the consequences
of plagiarism. This is a highly effective tool, one which is useful evidence across their entire
degree, so long as the rules and policies are implemented and students are aware of
implementation;
ii.
Defining deadlines in detail;
Concluding Remarks:
Working as an academic is an interesting path, and one which is stimulating intellectually, especially
for those of us willing to admit we are just a ‘little geeky’. Entering into the academic world means
entering into a world guarded with long held traditions, traditions which may appear to clash with the
requirements of 21st century realities and mindsets. Law likewise is steeped in tradition, and especially
in the common law world, has a legitimate reason to always keep one eye on history – our greatest
teacher – but also a reason to be suspicious. But like academic institutions, the law and legal
profession is required to meet the needs and mindsets of the 21st century. One of these needs – among
so many – is technological literacy. As such, those with the privilege of legal education need to have
access to technology, and one of the playing fields for technology is in the manner in which we assess
law students. E-assessment provides one of these grounds, as does online education generally.
But with change, comes suspicion and concern. Whilst some concerns raised by e-assessment are
legitimate, I suggest that these concerns are not as great as they first appear. If e-assessment is used
following principles of andragogy and the key principles of assessment guide, then it is a valid and
useful method to ensure students graduate with some level of technological literacy. The technology
can indeed be used to enhance and reinforce the understanding and practise of professional ethics.
There technological methods which can be adopted can even demonstrative at the primary stages of a
law degree to instil an ethical framework in the students, and also provide evidence the students are
often inherently aware of many ethical problems. The e-assessment allows the students to conduct
themselves ethically in an e-assessment world, in preparation for digital technology in the real world.
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Ross Ashcroft
Even then, e-assessment does still potentially have flaws, and as both lawyers and academics, we
must be willing to attempt to resolve these potential problems. Dialogue between the major
stakeholders – the professional bodies which provide professional accreditation and the academic
institutions which provide the education to meet the accreditation – is imperative. The dialogue can
assist in reducing barriers, and increase the enjoyment of studies. So what problems do I envisage still
exist? What questions/problems are still to be worked out? The most important problem is ensuring
standards and guidelines are fully functional – not just on paper – but in application. The rule of law
does not exist merely because there are laws, and the same goes for provision of good assessment.
The second problem is institutional support and ongoing reflection and revision. The revision and
reflection must be genuine and must be capable of being undertaken. This requires resources and time,
not merely immediate change when something does not work or no change when everything works.
Genuine reflection will always find positives and negatives. A third problem, especially for distance
education providers who have students in various places – and especially large nations such as
Australia, Canada and the United States – time zones is an issue which needs to be addressed, either
technologically or in guidelines. The literature, and experiences discussed, provide various accounts
of e-assessment, benefits and perceived problems. Hopefully, they also provide audiences with a place
to begin an everlasting process of reflection.
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