share space

Shared space:regulation, technology and legal

education in a global context

Professor Paul MahargAustralian National University

slides @ http://paulmaharg.com/slides

Miranda: O braue new worldThat has such people in’t.

Prospero: ‘Tis new to thee.The Tempest, V.i.215-17

Professor Paul Maharg 2

1. What does LETR say about technology & legal education?

Adopt fresh approaches that can improve regulation and the quality of legal education - focus on experiential learning.

2. Re-design regulation of technology in legal education

Shape the future with regulators, redesign relations between academy & profession, recast curriculum design, learn & implement from other disciplines, professions, jurisdictions.

3. Map and improve technology & legal educational research

Many gaps; almost no organized research programmes; insufficient historical understanding of sub-disciplines and practices; little shared understanding across the field.

preview


1. What does LETR say about technology & legal education?


Legal Education & Training Review (LETR)1 LETR on

tech & legal ed


literature review1 LETR on tech & legal ed


Address the following issues:

1.What are the skills/knowledge/experience currently required by the legal services sector?2.What skills/knowledge/experience will be required by the legal services sector in 2020?3.What kind of legal education and training (LET) system(s) will deliver the regulatory objectives of the Legal Services Act 2007?4.What kind of LET system(s) will promote flexibility, social mobility and diversity?5.What will be required to ensure the responsiveness of the LET system to emerging needs?6.What scope is there to move towards sector-wide outcomes/activity-based regulation?7.What need is there (if any) for extension of regulation to currently non-regulated groups?

LETR remit1 LETR on tech & legal ed


1. What are the skills/knowledge/experience currently required by the legal services sector?

2. What skills/knowledge/experience will be required by the legal services sector in 2020?

3. What kind of legal education and training (LET) system(s) will deliver the regulatory objectives of the Legal Services Act 2007?

4. What kind of LET system(s) will promote flexibility, social mobility and diversity?

5. What will be required to ensure the responsiveness of the LET system to emerging needs?

6. What scope is there to move towards sector-wide outcomes/activity-based regulation?

7. What need is there (if any) for extension of regulation to currently non-regulated groups?

See esp Lit Rev, chapter 3, ‘Legal education and conduct of business requirements’, http://letr.org.uk/wp-content/uploads/LR-chapter-3.pdf

LETR remit1 LETR on tech & legal ed

Professor Paul Maharg 8(p.332)


skills comparison across timeLETR on tech & legal ed1


‘Susskind drew on four interviews conducted specifically for LETR, a series of interviews across the profession in which he raised LETR, as well as his own on-going research and consultancy activities. These included two extended interviews with experts about professions outside law, six confidential discussions with leading practitioners (including General Counsel and senior partners in major firms) and discussions with academics and students at three seminars (one in England, one in Holland, and one in the US). He also drew on his ongoing collaborative research with Daniel Susskind and 50 face-to-face, interviews carried out last year across the professions, and on insights gained during 2012 from five client consulting projects (three leading law firms and two in-house legal departments).’

Appendices, 1.24

Susskind, Provocations & Perspectives,Briefing Paper 3/2012

LETR on tech & legal ed1


LETR & technology in liberalised legal services

‘regulation and technology, as the scenarios suggest, both have the potential to transform the demand side of the market’ (para 3.6)

Use of ‘technology to enhance communication, information access, data management, and workflow, particularly in conjunction with outsourcing and commoditised practices’ (para 3.74)

Automation vs innovation: ‘The capacity of technology to enable things to be done

differently rather than just more quickly, easily and/or thoroughly appears to be underestimated by respondents.’ (para 3.88)

1 LETR on tech & legal ed


‘Technology therefore has longer term implications for the type of legal roles in the marketplace and may contribute to a reduction in the number of traditional lawyers. Some of this number may be absorbed into the kinds of new roles Susskind (2010, 2012) describes for legal information technologists, knowledge managers and legal process analysts. Such roles would also require new technical skills, and a greater understanding of the potential for ICT to innovate, not just automate.’ (para 3.96)

LETR & technology in liberalised legal services1 LETR on

tech & legal ed


technology in legal education

‘Technology, particularly through increasingly sophisticated forms of blended and e-learning also has the potential to transform the delivery of LSET. One of the questions for the LETR is therefore, how might these technologies connect? In other words, what can those who are planning LSET learn from the use of technology in practice?’ (para 3.86)



‘The emergence of new online providers, like LegalZoom and Rocket Lawyer, albeit supported by a human interface, is already indicative of the ways in which the market may be moving. Such online providers may increasingly challenge and substitute for traditional f2f providers, particularly as the technology moves from ‘search engines’ to far more powerful and intuitive ‘discovery platforms’.’ (para 3.94)

technology in legal education1 LETR on tech & legal ed


commercial & social awareness

‘There is also a case for including a greater understanding of the transformative potential of information technology under this heading. It is not sufficient to ensure that trainees or prospective trainees understand how technology is used to facilitate current work tasks without also helping them to understand how it can radically change, and is changing, their business models and the way clients may access and use legal information. In this context Richard Susskind’s (2012) suggestion that law schools should include an optional course on developments in legal services deserves to be taken seriously.’ (para 4.70)



2. Re-design regulation of technology in legal

education


how not to regulate…

1. Debate around ABA Standard 306 (now 311), restricting distance learning vis-à-vis classroom time:Standard 311. DISTANCE LEARNING

Distance education is an educational process in which more than one-third of the instruction of the course is characterized by: (1) the separation in time or place, or both, between instructor and student; and (2) the use of technology to deliver instruction.

2. But now see:1. ABA Task Force Report2. Mitchell Law School Variation, under Standard 802 (

http://bit.ly/1kvD6uR):Interpretation 802-1(b) states the Council may grant a variance for an experimental program if that program is well-designed and the benefits of the experimental program outweigh its risks.

redesignrelations2


regulatory alternatives?

‘While distance education can be analogized to classroom time, it would seem that a better approach is to think about what we want education to accomplish – knowledge of subjects needed to be a lawyer, inculcation of skills and values necessary to be a good lawyer, and some experiential component – then set out how any program proves that it does so.’

Rakes, W.R. (2007). From the Chairperson. Syllabus. American Bar Association section of Legal Education and Admissions to the Bar, 38(2), 2-3.

redesignrelations2


Colin Scott’s approach:‘a more fruitful approach would be to seek to understand where the capacities lie within the existing regimes, and perhaps to strengthen those which appear to pull in the right direction and seek to inhibit those that pull in the wrong way’‘meta-review’: ‘all social and economic spheres in which governments or others might have an interest in controlling already have within mechanisms of steering – whether through hierarchy, competition, community, design or some combination thereof’ (2008, 27).

modalities of controlredesignrelations2


Norms Feedback Behaviour-al modifi-cation

Example Variant

Hierarchical Legal Rules Monitoring Powers/Duties

Legal Sanctions

Classic Agency Model

Contractual Rule-making & Enforcement

Competition Price / Quality Ratio

Outcomes of Competition

Striving to Perform Better

Markets Promotion Systems

Community Social Norms

Social Observation

Social Sanctions, eg Ostrac-ization

Villages, Clubs

Professional Ordering

Design Fixed with Architect-ure

Lack of Response

Physical Inhibition

Parking Bollards

Software Code

Modalities of control (Murray & Scott 2002)


regulatory alternatives?

Shared spaces concept in traffic zones: Redistributes risk among road users Treats road users as responsible, imaginative, human Holds that environment is a stronger influence on behaviour

than formal rules & legislation.

‘All those signs are saying to cars,“this is your space, and we haveorganized your behavior so that

as long as you behave this way, nothing can happen to you”.

That is the wrong story’.Hans Monderman,

http://bit.ly/1p8fC3u The Art & Science of Shared Streets, http://bit.ly/1p8fr8r See also

Hamilton-Baillie (2008).

redesignrelations2


participative regulation

Portrait of the regulator as: Not QA but QE – Quality Enhancer, to focus on culture

shifts towards innovation, imagination, change for a democratic society

A hub of creativity, shared research, shared practices & guardian of debate around that hub

Initiating cycles of funding, research, feedback, feedforward

Archive of ed tech memory in the discipline Founder of interdisciplinary, inter-professional trading

zones Regulator as democratic designer

redesignrelations2


LETR recommendation

Recommendation 25A body, the ‘Legal Education Council’, should be established to provide a forum for the coordination of the continuing review of LSET and to advise the approved regulators on LSET regulation and effective practice. The Council should also oversee a collaborative hub of legal information resources and activities able to perform the following functions:

Data archive (including diversity monitoring and evaluation of diversity initiatives);

Advice shop (careers information); Legal Education Laboratory (supporting collaborative research and

development); Clearing house (advertising work experience; advising on transfer

regulations and reviewing disputed transfer decisions).

redesignrelations2


3. Map and improve technologyand legal educational

research


future research needs?

1. Map the field & createtaxonomies for research data

3 improveresearch

2. Organise systematic data collection on law school stats across entry/exit points, across jurisdictions (eg using Big Data Project methods)


future research needs?

3. Focus on learning,not NSS league tables – see USLSSSE… and include longitudinalresearch data, not justsnapshots of place & time

3 improveresearch

4. Provide meta-reviews and systematic summaries of research, where appropriate; literature guides


how might BILETAcontribute to this?

1. Targeted funding for research initiatives, eg Cochrane Collaboration type of initiative

2. Funding & admin support to start-up and analyze innovation – eg PBL, public educationin law, legal informatics,data visualization, etc

3. Financial & other support to enableround table meetings with regulatorsand comparative work with otherjurisdictions – globally

4. Creation and maintenanceof a digital hub.

3 improveresearch


references

Hamilton-Baillie, B. (2008). Shared space: reconciling people, places and traffic. Build Environment, 34, 2, 161-81.Legal Education & Training Review Report (2013). Available at: http://letr.org.ukMonderman, H. (n.d.) http://www.pps.org/reference/hans-monderman/Murray, A., Scott, C. (2002). Controlling the new media: hybrid responses to new

forms of power. Modern Law Review, 65, 4, 491-516. Scott, C. (2008) Regulating Everything. UCD Geary Institute Discussion Paper Series,

Inaugural Lecture, 26 February.


Email: [email protected]: paulmaharg.com