Solving Insolvency Law’s Pedagogical Problems

Overview

This case study highlights some of the benefits of creating and using an OER for teaching Australian corporate insolvency law instead of relying on a physical textbook. The benefits include: (1) the cost savings for students because they do not need to purchase an expensive learning resource; (2) the greater chance that students will have a copy of the resource because OERs can be easily downloaded for free; (3) the ability to tailor the content to avoid overloading students with unnecessary information; (4) the promotion of student engagement with other important resources if external links are included; (5) the greater convenience for students of navigating within the resource if internal links are included; and (6) the ability to promptly update the resource as necessary and share the up-to-date version with students.

However, this case study also recognises that challenges may be encountered, and mistakes may made be made, in the process of creating an OER for teaching in higher education. The greatest challenge discussed in this case study is the tremendous time commitment required to create an OER that is sufficiently extensive and detailed to replace a conventional textbook. The biggest mistake that is discussed is the failure to consult students, or form student partnerships, in creating the OER—which may result in an OER that is less accessible and/or comprehensible than it could be. The case study also foreshadows potential next steps, which include subjecting the OER to peer review, developing and publishing an improved version of it, and creating a similar OER for corporate law.

Acknowledgements

The OER that I created is Corporate Insolvency Law in Australia (2023) by Dr Paulina Fishman of Deakin University (‘CILIA’), licensed under CC BY 4.0. Although I am the sole creator of CILIA, I was fortunate to be advised by other Deakin University staff throughout the process. I am particularly grateful to Angie Williamson (Open Education Librarian), Astrid Bovell (Copyright Manager) and Luke Watsford (Senior Officer, Copyright). Except for one image, copyright in CILIA belongs to Deakin University.

Reasons for creating this OER

The problems of expense and excess

In early 2023, soon after I commenced working as a Lecturer (Corporate Law) at Deakin University, I was offered the chance to develop two units focusing on corporate insolvency law. It had been taught previously at the Deakin Law School—last time in Trimester 3 of 2021. Back then, the prescribed textbook was Michael Murray and Jason Harris, Keay’s Insolvency: Personal and Corporate Law and Practice (Thomson Reuters, 10^th ed, 2018). The 11^th edition of that book was published in 2022. I gave serious consideration to prescribing that new edition, as well as another wonderful textbook in the field: Christopher Symes, David Brown and Sulette Lombard, Australian Insolvency Law (LexisNexis Butterworths, 5^th ed, 2023). However, both books are concerned with personal insolvency law as well as corporate insolvency law.

Meanwhile, I remembered how relatively expensive textbooks had seemed to me when I was a law student. Indeed, I sometimes opted not to buy prescribed texts due to their cost, and tried to borrow them from a library instead. Now as an academic, I did not want other students to face the same dilemma: either to spend a significant sum on purchasing a prescribed textbook or to have only limited access to such an important learning resource through a library. It further occurred to me that students might be especially disinclined to purchase a textbook with a substantial amount of content that might not be relevant to their studies (namely, personal insolvency law). However, my search for an up-to-date textbook that was solely focused on corporate insolvency law in Australia proved fruitless.

The appeal of OER lecture slides

My deliberations led me to settle upon three chief wishes: first, for all students of corporate insolvency law to have unlimited access to the prescribed learning resource; second, for them to obtain and use it for free; and third, for that learning resource to only contain content that is relevant to their studies. I was also highly aware “that insolvency law is statutory and primacy must be given to the relevant statutory text” (International Air Transport Association v Ansett Australia Holdings Ltd (Subject to Deed of Company Arrangement) (2008) 234 CLR 151; [2008] HCA 3, [78] (Gummow, Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted)). Therefore, I wanted students to construe relevant legislative provisions for themselves, aided by pertinent case law—rather than merely adopt the interpretations of textbook authors.

This, then, was the impetus for me to create an OER regarding Australian corporate insolvency law in the form of extensive lecture slides. The final product, CILIA, was published on 1 February 2024. Being an OER, CILIA satisfies my three chief wishes set out above. In addition, being a set of lecture slides, CILIA may seem attractive to students because it entails less reading than a typical textbook. But from my perspective as an educator, I hope that the dearth of exposition in CILIA will prompt students to develop their own interpretations of the relevant legislative provisions (see, eg, John Biggs, Catherine Tang and Gregor Kennedy, Teaching for Quality Learning at University (Open University Press, 5^th ed, 2022) 134).

How this OER was created

I created CILIA in Microsoft PowerPoint. Regarding its structure, I mostly followed Chapter 5 of the Corporations Act 2001 (Cth), which is the main source of corporate insolvency law in Australia. A typical CILIA lecture slide quotes and/or summarises one or more sections from that Chapter or other part of that Act. However, Australian corporate insolvency law is also contained in Corporations Regulations 2001 (Cth) and Insolvency Practice Rules (Corporations) 2016 (Cth), for example, so some of their provisions are also covered in CILIA. In addition, mentioned throughout CILIA are over 50 cases that I selected because of the light they shed on key legislative provisions. Regarding the visual presentation of information, I generally inserted text into various colourful shapes and liberally used the SmartArt tool in PowerPoint.

I welcomed the ability to incorporate links into CILIA. Key legislation, court judgments, and other germane resources (such as the Parliamentary Joint Committee on Corporations and Financial Services, Corporate Insolvency in Australia (Report, July 2023)) are linked. Thus, students will be able to access freely available information pertaining to corporate insolvency law with a mere click. I believe that this will encourage them to directly engage with the primary and secondary sources of corporate insolvency law, which would only benefit their learning. CILIA also contains internal links: for instance, a ‘home’ button that takes students back to the contents page and a ‘rewind’ button that takes students to the start of any given chapter. This should make CILIA easier to navigate than a physical textbook.

The current state, and future, of this OER

CILIA is a PowerPoint document that comprises an extensive set of lecture slides—specifically, 363 slides. It is intended to provide a detailed introduction to Australian corporate insolvency law. Like a typical textbook, it is divided into chapters (10 in total). The structure and content of CILIA have been briefly discussed above. Recently, in Trimester 2 of 2024, I taught MLL318 Corporate Insolvency Law (‘MLL318’) to undergraduate law students and MLJ735 Corporate Insolvency Law and Policy (‘MLJ735’) to Juris Doctor students. For both units, I made CILIA a prescribed reading (instead of any textbook) and used modified portions of it during my lectures. Modification was necessary because corporate insolvency law is a dynamic field. CILIA is current to September 2023, yet it is already outdated to some extent due to legislative changes that have occurred since then.

For example, CILIA still refers to the definition of ‘officer of a corporation’ that was previously contained in s 9, but is now found in the newly created s 9AD of the Corporations Act 2001 (Cth). This was one of the changes implemented by item 48 of Schedule 2 to the Treasury Laws Amendment (2023 Law Improvement Package No 1) Act 2023 (Cth), which came into operation on 20 October 2023—less than two months after the substance of CILIA was settled. If a physical textbook had been prescribed, I would need to inform students of the recent changes, and hope that they would not be confused by the differences between their textbook and the lectures. But another advantage of using an OER is that I was able to easily provide updated portions of CILIA for students to read and for me to use in my teaching.

Going forward, I wish for CILIA to undergo peer review. One of the reasons why peer review was postponed concerns timing. CILIA was not finalised until it was published on 1 February 2024. Yet it might take many months for two or more independent experts to provide feedback on extensive lecture slides containing dense corporate insolvency law content. Depending on the feedback I receive, and on my other commitments, it might then take me a further few months to make the necessary changes (possibly with others’ involvement). However, CILIA needed to be ready for teaching by the start of Trimester 2 on 8 July 2024. My hope is that CILIA will be peer reviewed in the coming months, and an improved version published thereafter.

Lessons from using this OER thus far

While teaching MLP331 Corporate Law earlier this year, certain aspects of corporate insolvency law came up. Whenever I perceived an overlap, I used CILIA’s slides in my teaching of corporate law. Afterwards, I asked students to vote on a show of hands in favour of their preferred slides: those from CILIA or my usual (plainer) ones. A marked majority favoured the latter. After that vote, I invited further feedback. I learned that students generally found the many shapes and colours in CILIA to be confusing or distracting. Some wished for colours to be reserved for fonts, and even then, to be used sparingly (such as for headings and key phrases). Others added that visually striking slides are useful, but only when a topic is being summarised. I subsequently received similar feedback on CILIA in Trimester 2. In light of this constructive feedback, I plan to consult with students in the process of creating any improved version of CILIA in the future.

Experience of working on this OER

Having written a PhD thesis in corporate insolvency law, I was delighted to have the opportunity to develop MLL318 and MLJ735. However, the amount of time that was allocated for me to develop these units assumed that I would be using a conventional textbook for my teaching. Working on CILIA took up a tremendous number of hours—far more than I had anticipated. Accordingly, much of it was created in my leisure time, including on weekends and during the last Christmas break. I was fortunate to be supported in my endeavour by the receipt of a 2023 OER Library Grant of $5,000. I considered hiring an assistant, but ultimately spent the $5,000 on marking relief in order to free up some time in my workday. Although the process of creating CILIA was not without frustrations and drudgery, it was a labour of love overall.

Creating a similar OER in the future

Some of the main possible advantages of creating an extensive OER and using it to teach in higher education instead of a conventional textbook have been canvassed above. To continue reducing barriers to learning, in the future I aspire to create another OER that is akin to CILIA but focuses on Australian corporate law. However, now that I better appreciate the necessary time commitment, I would need to negotiate a sufficient allocation of hours in my academic workload for this project. In addition, I would consult students or work in partnership with them on such a project to ensure that the content is presented in an optimal way. These are also my two key recommendations for any other academic who is considering creating an OER like CILIA.

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Acknowledgement of peer reviewers

The author gratefully acknowledges the following people who kindly lent their time and expertise to provide peer review of this chapter:

• Dr Sarah Steen, Course Director and Lecturer, Deakin University

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How to cite and attribute this chapter

How to cite this chapter (referencing)

Fishman, P. (2024). Solving insolvency law’s pedagogical problems. In Open Education Down UndOER: Australasian Case Studies. Council of Australian University Librarians. https://oercollective.caul.edu.au/openedaustralasia/chapter/solving-insolvency-laws-pedagogical-problems

 

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