The wrong story:regulation, innovation and research

in the future of legal education

Professor Paul MahargAustralian National University

College of Law

http://paulmaharg.com/slides/

2

1. Avoid technificationRegulation easily erodes into technification of regulation: we

need to resist that.

2. Renew learning spacesAdopt fresh approaches that can improve regulation and the

quality of legal education - focus on experiential learning.

3. Re-design relationsShape the future with regulators, redesign relations between

academy & profession, recast curriculum design, learn & implement from other disciplines, professions, jurisdictions.

4. Map and improve legal educational researchMany gaps; almost no organized research programmes;

insufficient historical understanding of sub-disciplines and practices; little shared understanding across the field.

preview

3

2. Renew learning spacesAdopt fresh approaches that can improve

regulation and the quality of legal education - focus on experiential learning.

4

Legal Education & Training Review (LETR)2 renew

learningspaces

5

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?

remit2 renewlearningspaces

6

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

remit2 renewlearningspaces

7

1. Information managementBetter, more powerful and social platforms, enabling visualisation & sharing of legal data.

2. Managing voice, register and genre on digital platformsFocus on a post-digital Ciceronian rhetoric

3. Make legal research and problem-based learning & experiential learning meaningful

eg by use of sims, clinic, PBL, breaching the ‘fourth wall’ of the law school, and many more

4. Socialising processes in relational spacesCreate a zone, where students can discuss and reflect on their work, try out identities that are at once professional & personal, make mistakes or learn from others’ mistakes, and learn how to communicate consistently & accurately with colleagues, in any register.

eg technology / curriculum innovations required2 renewlearningspaces

8

Transa

ctio

nal le

arn

ing

, exam

ple

1

9htt

ps:

//w

iki.m

ozi

lla.o

rg/L

earn

ing/W

ebLi

tera

cyS

tan

dard

10

Transactional learning @ ANU

[link to: voice-over on VOS by Anneka Ferguson, LegalWorkshop, ANU]

Transa

ctio

nal le

arn

ing

, exam

ple

2

11

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

12

conceptual change in law school identity

‘Wisdom is not the only virtue that is having a poor time of it in the modern university. Patience, humility, generosity, perseverance, thoroughness, carefulness, quietness: these might once have been felt to be signs of a strength of character. No longer. In an age of self-promotion, self-presentation, visibility, efficiency, work-rate, personal performance indicators and sheer competitiveness, character traits such as these come to be seen as signs of personal weakness.’

Barnett, 1994, 151–2

3 redesignrelations

13

conceptual change in law school identity

‘Now is your time to begin Practices and lay the Foundation of habits that may be of use to you in every Condition and in every Profession at least that is founded on a literary or a Liberal Education. Sapere and Fari quae sentiat are the great Objects of Literary Education and of Study. ... mere knowledge however important is far from being the only or most important attainment of study. The habits of Justice, Candour, Benevolence, and a Courageous Spirit are the first objects of Philosophy, the constituents of happiness and of personal honour, and the first Qualifications for human Society and for Active Life.’

Adam Ferguson, Lectures, 1775-6, MSS, University of Edinburgh

3 redesignrelations

14

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).

regulatory relationships3 redesignrelations

15

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)

16

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 have organized your behaviour so that as long as you behave this way, nothing can happen to you.”That is the wrong story.’ Hans Monderman, http://www.pps.org/reference/hans-monderman/

Drachten, Laweiplein, Netherlands – Thanx to Fietsberaad,http://bit.ly/1dOwpRA

3 redesignrelations

17

participative regulation

Portrait of the regulator as democratic designer: 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 memoryin the discipline

Founder of interdisciplinary,inter-professional tradingzones, for cross-disciplinarylearning [link to: http://www.youtube.com/watch?

v=Hz2HGLbA9Nw]

3 redesignrelations

18

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).

3 redesignrelations

19

4. Map and improve legal educational researchMany gaps; almost no organized research programmes;

insufficient historical understanding of sub-disciplines and practices; little shared understanding across the field.

20

future research needs?

1. Map the field & create taxonomiesfor research data

4 improveresearch

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

21

future research needs?

3. Focus on learning,not NSS league tables – see USLSSSE…

4 improveresearch

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

22

how might HEA contribute 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.

4 improveresearch

23

references

Barnett, R. (1994). The Limits of Competence. Knowledge, Higher Education and Society, Buckingham: Open University Press. 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.

24

Email: paul.maharg@anu.edu.auWeb: paulmaharg.com