First sitting of the UK Supreme Court

Two posts in one day, must be a record! But appropriate to mark the first day that the new Supreme Court has actually sat as the final court of appeal in the UK. I recently came across the following YouTube video, with Lord Mance, one of the ten former Law Lords now sitting as a Justice of the Supreme Court. Its not a bad discussion of some of the issues, and it also captures nicely, I thought, some the obviously quite mixed emotions for those involved in the change. Could be a neat resource for GCSE/A level or even first year LLB?

The future of legal education – part 2: gazing in the crystal ball

So, where do my musings, based on the previous post, lead me? Let’s start with the biggest change. I anticipate that we will see the gap between elite and local institutions widening, with a greater degree of mission and market differention than at present. By 2029, what we might think of as the modern ‘compleat university’ will I think be the preserve of a few elite institutions.Why?

First, I think it will be recognised that the demand for graduate employment has been misjudged and that the HE sector has become bloated (in crude economic terms, and, sadly those seem to be what counts), particularly in its ‘production’ of social sciences and humanities graduates. In law, whether we like it or not, changes to the market for legal services, which are already having profound affects on the shape of the legal profession, will have an impact on legal education, and not just in terms of demand for and design of vocational training. We reckon that, today, somewhere between 30-40% of law graduates in England and Wales actually enter the profession, though about 60-70% of them probably still want a career in law. One particularly important facet of this changing environment will be the impact of alternative business structures, increased legal process outsourcing and other forms of de-professionalisation on legal education and training. Even putting the recession to one side, we will, I think, see a further reduction in the number of traditionally qualified lawyers and a significant increase in paralegal work. Even if we do not regard professional education as the primary function of academic legal education, there are plenty of our students who do, and there will be a growing disjunction between their aspirations and the reality of the marketplace. That could start to have an impact on recruitment, and almost certainly will have an impact on what universities, and particularly the ‘recruiting’ as opposed to ’selecting’ universities, need to do to address the employability of their students.

Secondly, resource, technology and sustainability factors will combine to influence how and where people study. The emphasis on work-based and workplace learning will increase, and the epistemological gaps between academic, social and technical/vocational knowledge will continue to be eroded. Traditional, full-time f2f, tuition may become increasingly outmoded and outpriced as technological enhancements improve, and constraints on mobility increase (due to fuel poverty and/or environmental protection policies), or it may simply become, once again, the preserve of an economic elite. Distance and technology-enhanced learning will become much more the norm, and learning will also become separated from processes of assessment and certification, with some universities becoming primarily assessment and certification hubs for learning that is undertaken through a distributed network of local and workplace centres.

It follows also that we may see fundamental and continuing change to the academic role. If we have fewer ‘compleat’ universities, we will probably have fewer ‘compleat’ academics. We can expect, perhaps, a greater premium on the effective delivery of learning and teaching, especially in those institutions that become more exclusively teaching-led, but also more generally as funding becomes tied more closely to teaching quality evaluations. At the same time, in most disciplines – even law – as successive research impact assessments re-define what counts as appropriate research activity, campus-based research will give way to more flexible approaches. These will increasingly utilise independent research facilities and groupings, often funded directly by the commercial and state sectors. In short, research and teaching functions will become disaggregated, work may become more casualised and competition for ‘traditional’ academic posts will be greatly increased.

For most of us, this probably looks like a pretty dystopian future, despite some glimmers of light in terms of what could be achieved, eg, in terms of widening participation and educational innovation in a more flexible environment. UK universities, including their law schools, have been, for the most part, a success story, and that is not alway an easy position from which to anticipate the need for change. Rather like Dickens’ ghosts of Christmas, I am not here to tell you what will come to pass, merely what might be, if we don’t start to anticipate the need for deep change in both organizational and sustainability terms, and provide leadership (at all levels) accordingly:

“Lead on!” said Scrooge. “Lead on! The night is waning fast, and it is precious time to me, I know.”

The future of legal education – Part 1: the drivers for change

As I mentioned in the last post, I was in Keele at the beginning of last week for the first two days of the Centenary Conference of the Society of Legal Scholars. It was a good event – a high quality Practice, Profession and Ethics section meeting organised by Hilary Sommerlad, and socially too an excellent conference.

I was invited by Fiona Cownie to be part of a plenary panel on the future of legal education. It was quite a lively event, which generated a lot of questions. I’m unlikely to publish my presentation elsewhere, so I thought I might as well summarise it here – and develop a couple of the points that I left underdeveloped in the ten minutes I had available.

The brief we were given was to consider where we thought legal education would be in 20 years time – 2029. Not an easy brief at all! If we look back at the last 20 years, the changes have been substantial – in the UK we have moved from an elite to a (more or less) mass system of education; we have generated a substantial expansion of academic postgraduate education, experienced the creation of an audit-led research culture, and, in England and Wales particularly, seen a significant relaxation in professional control of the undergraduate law curriculum. Over that same time I think the basic level of teacher competence has improved, though whether there has been a commensurable increase in the quality of the student learning experience as a whole is much more moot, not least because of the research focus created by the RAE.

In this post I’ll focus briefly on what I see as the key drivers for future change, in the next I’ll say where they lead me.

Economy: we are receiving significantly different readings of the economic tealeaves – from those who suggest we are already starting the climb out of recession, to others who say that the worst is still to come, and that it could be another two to three years before we see a return to growth. There is no doubt that the recession will have a direct and probably sustained impact on HE spending for some years to come (HEFCE has already been required to excise £189 M from its 2010-11 spending). Ongoing changes in the financing of tertiary education may make HE less affordable and so potentially reduce access. It is likely that government will increasingly expect the sector to fund widening participation from fee income. It seems likely too that demand for traditional LLM courses has plateaued. Legal education will also be impacted by continuing changes in the professional services market – segmentation and casualisation of the market, hastened by the emergence of alternative business structures, will almost certainly help exacerbate existing status distinctions between educational providers at both academic and vocational stages.

Environment: we need to think of climate change as the one issue that has the potential to impact everything we do. As Prof Tom Burke has observed – “It is a systemic problem – it is one that touches all the others. It will stress all the other stresses in the world. We cannot look at it in a silo… All the pillars of prosperity are being undermined.” Most experts agree we are reaching a tipping point; the longer we leave it to initiate deep change, the more radical the surgery will need to be, the less likely that market mechanisms will be sufficient. On balance I am not one of the optimists, here. Climate change will, I suspect, demand some radical interventions. Fuel poverty will become a growing global problem; economic and, indeed, legal constraints on mobility will become more common; we may by the early 2020s see a return to greater protectionism/state corporatism as the environmental crisis places an increased strain on existing regional and global institutions.

Demography: Concerns have been expressed about the impact of projected demographic changes on HE, in terms of both an aging population generally and a specific decline in the numbers of 18-20 year olds. Government thinking (and the recent IUSS Select Committee report) both point to a need to look to part-time provision and workplace learning to maintain participation levels. The immediate problem is, as the Select Committee noted, current funding differentials provide little incentive to expand p/t provision. It is probably easy to make too much of the demographic risks, but it does seem likely that demographic changes will have at least qualitative effects on the diversity of paths, provision and institutions in future higher education.

Technology: from my relatively non-technical perspective the role of technology is a difficult issue – will it be a driver of change, or more a tool which may help us respond to change? I suspect the answer will continue to be a bit of both. That said, in terms of learning and teaching, certainly, we tend to be behind the curve and that may have to change if we are to respond effectively to the other challenges I have identified.

Rethinking the landscape of education

I have been thinking quite a lot lately about the future of legal education, partly because I had agreed to talk about that at the Society of Legal Scholars Centenary Conference this week (more about that in a future post), but also because there is currently an enormous amount of policy discussion on education futures in general. One of the things we in higher education have, I think, to take much more seriously is the relationship with prior learning – both in terms of content and process. There is still very little notion of higher legal education as part of this much larger learning continuum.

I recently came across a set of webcasts by Helen Haste of Bath University and Harvard Graduate School of Education. These illustrate some of the challenges we face and show how (some) educationalists are thinking about the transformative role of pre-tertiary education in a way that generally we are not in HE. I got to know Helen and (more particularly) her work in moral education through one of my PhD students when I was in Bristol, though I’m sorry to say I haven’t been in contact with her for some years. I find her writing often inspiring and always extremely challenging (in a good way!) – strongly constructivist, with a real sense of the difference education can make to individuals and their communities.

In one of the clips Helen refers to the need to develop in students five core ‘competences’ necessary to the 21st century:

• Managing Ambiguity. “…managing ambiguity is something we have to teach, because we have to counter the story of a single linear solution.”
• Agency and Responsibility. “Being an effective agent means being able to approach one’s environment, social or physical, with a confidence that one actually will be able to deal with it.”
• Finding and Sustaining Community. “Managing community is partly about that multitasking of connecting and interacting. It’s also, of course, about maintaining community, about maintaining links with people… and of course recognizing also that one is part of a larger community, not just one’s own private little world.”
• Managing Emotion. “it’s about getting away from the idea that emotion and reason are separate… Teaching young people to manage reason and emotion and not to flip to one or the other is an important part of our education process.”
• Managing Technological Change. “When we have a new tool, we first use it for what we are already doing, just doing it a bit better. But gradually, the new tool changes… our social practices.”

I suggest these have considerable continuing relevance for undergraduates as well as school students.

Helen also refers to Beyond Current Horizons, a UK government project, for which she is lead on youth identity, community and citizenship, which we should also be aware of in thinking about the direction in which HE is moving. In the final clip in the series she describes how lessons learned from this experience, together with her work on a model of the human as tool user, have led her to rethink the priorities for education. You can access the webcasts from this link. Sorry, because its in Real Player format, I can’t embed the clips here, but they are worth viewing.

Beyond Text Conference – Edinburgh

I was up in Edinburgh this weekend, having been invited by Zenon Bankowski to be a commentator (along with Tony Bradney) on papers that he and Maks Del Mar had written for the opening of their conference, Beyond Text in Legal Education. The conference was the final event in a series of activities that have formed a project funded by the AHRC as part of its Beyond Text programme. Day 1, Saturday, focused on ‘theory’. Sunday focused on ‘practice’. It was a really excellent and engaging event. Most of those attending have been participants in earlier stages, and it was a really good, international, mix of people – academics (not all law), legal practitioners and practitioners in the arts, and these are by no means mutually exclusive categories – like I said, it’s a really interesting group.  Paul Maharg has written an excellent general review of the whole event at Zeugma, but there are three particular elements of the first day that I’d like to focus on here.

Zen and Maks’s opening papers made a distinction between the education of attention and the education of encounter. I like that distinction; it seems to ‘work’ as a phenomenological account and has practical (and ethical) resonance, and application. Attention (drawing on thinkers such as Iris Murdoch, Simone Weil, Martin Buber, and Roland Gaita) emerged as an encounter of close attentiveness to objects and contexts (Murdoch) – of objects (including persons) as things in themselves and in their settings, and an openness to experience that is both detached and loving (Weil). Attention is I understand it from their presentations seems, almost paradoxically, to be both passive in its openness, its ability to wait (attendre) and “receive in its naked truth the object which is to penetrate [our thought]” (Weil), and active, in a sense of both active contemplation, and as a responsiveness, a readiness to receive and care for (again attendre) another. This links to the importance of encounter. The encounter with another is understood as more than just an idealized encounter. It is the (actual and embodied) context in which attention happens. Without encounter we have no call to attend, but attention also enables us to come, openly, patiently, and trustingly, to encounter. The question then is how do we build the practices of attention and encounter within the law school?

A number of suggestions emerged out of the later sessions. I’ll focus on just a couple of the sessions here, the two that were the most interactive (and I appreciate this is no coincidence, it not just reflects my bias towards active learning, but I think these also worked well in demonstrating the potential for taking attention and encounter beyond text. Alan Lerner (U. Pennsylvania) took us through an exercise in which he gave us a fact scenario and then asked us quickly to rate the culpability of the five actors on a scale of 1-5 indicating least to most culpable (with no split votes or shared scores). I won’t entirely spoil the story, but the point was, when we compared results, that there was no single actor who didn’t have both ones and fives, and pretty much everything in between. Alan made the point that neuroscience demonstrates that our responses are based primarily on emotion – the emotional response ‘kicks-in’ before the rational brain can take charge – and also that such emotional factors are hard to dislodge. Indeed Alan seemed to be suggesting that on the whole the rational brain serves to offer post-hoc justification for the original emotional response. The implications of this for understanding the dynamics of encounter, and the role that emotion plays in encounter are fairly evident, but no less significant for that.

The other session I’d like to focus on was one introduced by Jim Moser of Dundas & Wilson, and led by Antony Psaila and Tor Clark from Steps Drama. Steps use improvisation and interactive drama (based on a model we later learned was called ‘forum theatre’) to explore conflict in organizations. Starting from a basic brief they improvised two interactions – one between a lecturer and a student upset by a mark she had obtained in a group assignment, and the other between a law firm partner and senior associate over the latter’s exclusion from a project team. In both scenarios our role was to observe, discuss, and provide the actors with advice on what to do next, and then watch the consequences of our advice unfold. There were some definite ‘there but for the grace of god…’ moments! What differentiated it from more conventional role play was that the actors stayed in role pretty much throughout, which was more engaging and I think gave us a much greater sense of being in the moment with the characters. The level of debate and discussion these exercises generated in our group was clear testament to the power of the technique. It also showed what could be done by skilled actor-facilitators who had really honed their skills of attention and had created scenarios that avoided easy, two dimensional (good/bad) categorization of their character’s motivations. Great stuff!

What’s in a name

So DIUS is dead and we have to get used to BIS – well for another twelve months maybe. The logic of another big reorganisation so soon after the establishment of DIUS rather escapes me, other than wondering if the creation of such a mega-department is a reflection of the price Gordon Brown was prepared to pay for the Dark Lord’s (Mandelson’s not Voldemort’s – so far as we know) support. With such a wide brief and a total of 11 ministers (according to The Guardian) one cannot but wonder what the fate of higher education will be. There are seldom budgetary advantages to being lost in the crowd.

At a very basic level I find it depressing that the notion of  ‘education’ is now largely invisible in the political landscope. The split of the education brief into two for me was itself quite significant. A symbolic denial of the idea of education as a continuum – so much for a policy setting that at least looked like it could take a cradle-to-grave, lifelong learning, perspective.   But by embedding higher education in BIS, the government seems to be sending out a very clear signal that HE really is entirely subservient to the performative, workforce development, agenda.  I know we’ve said it before, but what price learning for its own sake now?

The problem of moral leadership

I’ve been meaning to write for weeks on issues of access to the profession that came up at both ALT and SLSA, but that has rather got pushed to one side by some very day to day concerns, but also some larger niggling thoughts, arising out of the the current economic crisis, so I’m going to park access for now and talk about the stuff that is really starting to bother/interest me.

One of the things that unites commentary about both the banking crisis and the recent scandal over MPs expenses is the tendency to see these phenomena as a failure of regulation. In other words the argument, at its simplest, seems to be that neither of these groups of people would have behaved the way they did, if the rules hadn’t permitted it. I think that this is both absolutely spot on, and at the same time utterly banal and wrong! The fact that, at the same time, people outside Parliament have been so enraged by the perceived greed and venality of the expenses systems, and that MPs themselves saw nothing wrong in that same system perfectly illustrates the power of a collective ethos and the capacity for ‘groupthink’ within any social group or institution. In an environment where everbody else is doing the same thing, these issues often simply do not occur like moral choices, or any kind of ‘big decision’ about which one needs to stop and think. If we are honest about it, these are simply high-profile instances of a very common human phenomenon. These are not particularly bad people, or necessarily bad institutions (though some may be). David Luban writes extremely well about the plasticity of conscience and the power of social pressure in the context of the corporate scandals of the early noughties in a collection of essays that are worth re-reading in the present context (see Deborah Rhode (ed) Moral Leadership: The Theory and Practice of Power, Judgment and Policy , Jossey-Bass, 2006). I think this helps us to understand what has been going on, though not in order to condone it. As Luban observes, understanding moral failure does not mean we have to forgive it. I’m not really saying let s/he who has never sought to exploit the rules (whether it be around tax avoidance, benefit claims, business expenses, or any other perks) to their own financial advantage cast the first stone. I am saying that our psychology makes us very, very, good at persuading ourselves that we are not really being bad. In sum, our moral compasses are less than reliable guides, and no system of external regulation is ever going to solve this problem. You can keep playing by the rules, because that may enable you also to keep playing with the rules in an endless game of creative compliance that is geared to minimize our own cognitive dissonance: that is why the playing by the rules defence is so banal and ultimately wrong.

This brings us, I guess, to the crux of the problem. If rules, though useful to a degree, are no adequate substitute for a good moral compass, and moral compasses are also potentially quite unreliable guides, what do we need to do? This is a big question. Certainly we need to revisit the rules, and we need to do so in a way that offers greater transparency into how important social institutions operate – whether they be banks or legislatures or other key social and economic institutions. Where rules are written and enforced behind closed doors, there is surely a greater risk that those rules will lack social legitimacy and adequate connection to standards of common morality. We also need a greater commitment to moral leadership. We need more not less moral accountability, and somehow to re-establish the idea that the buck stops where real, personal, moral responsibility lies. Let’s spell it out: moral responsibility means taking responsibility for one’s failure to see one’s own moral failings; following a set of rules that are of dubious moral legitimacy is no defence, even if that wasn’t obvious at the time.

Of course the other thing that is troubling here is that many of those we are being highly critical of are the products of supposedly ‘good’ schools and our leading universities. What is their role in developing – or failing to develop – this moral capacity for leadership?

Amsterdam or anywhere, Leicester not Rome… from ALT to SLSA

I’m in the midst of busy bout of conferencing having flown back on Monday evening from two days at the Association of Law Teachers’ Annual Conference in Amsterdam, to drive up to Leicester yesterday morning for the Socio-Legal Studies Association bash, which runs till Thursday at de Montfort University – so four nights away from home broken up by a night at home to empty and re-fill the suitcase… can’t say I find that quite as much fun as I used to!

I’m not doing a paper at SLSA this year, ‘just’ representing UKCLE and managing our display stand, but it will be nice to have an opportunity to sit back and engage with other people’s papers, rather than having to think about my own, especially as there are three legal education panels today and tomorrow, to add to the two legal profession panels I attended yesterday – more about that in a later post.

There were some interesting papers at ALT too, but I was particularly pleased to be part of an innovation: a plenary poster session! The session, which opened the conference on Sunday afternoon was organised by Paul Maharg and Caroline Maughan as part of an ongoing project on legal education and the affective domain. The plan is ultimately to produce a book of essays on this theme, and nine out of about a dozen or so contributors attended. Paul talks about the process and design of the session over at Zeugma. The session seemed to generate a lot of interest – to be honest probably more than I’d expected, which is, of course, very heartening, and would seem to confirm that we are picking up on a significant issue for law teaching. The posters and the discussion which followed also made it even more clear what a potentially massive project (can of worms??) affect is! There are multiple theoretical dimensions, drawing on combinations of psychology, neuro-biology, cognitive science, philosophy, sociology and social theory, and equally a vast array of applications and implications – for specific law subjects, for different stages or aspects of the both the student and the academic experience, plus quite a lot of underlying uncertainty about the scope of affect and the affective domain, and its relationship with emotion, the body, etc. Pulling this collection together will be an interesting challenge. To add to that (and I think if we can do it, it will enhance the quality of the product) Paul and Caroline are keen that draft chapters are shared via a wiki so that all authors can comment on the work in progress, and there might even be scope for collaborative editing/re-writing. As book projects go it is thus developing a very distinctive methodology, as well as some highly original content.

“A falling angel”: reflecting on the Learning in Law Annual Conference – Day 1

The 2009 LILAC conference started at Warwick today with just over 200 delegates registered – a new record attendance! It is a packed programme, but here I just want to offer some preliminary and pretty much ex tempore thoughts on the keynote address. Professor Ian Ward of Newcastle University gave an engaging, often entertaining and highly thought-provoking presentation on the theme “Legal Education and the Democratic Imagination”. Ian would be the first to acknowledge that he is not first and foremost a scholar of legal education, though a highly experienced teacher of law, so for people like me, who have been doing legal education scholarship for far too long, it was good to have an outsider perspective on some of our debates. Ian did a great job, I think, in reviewing the literature on – and, as he put it, the anxiety still engendered by the basic question of purpose – what are law schools for? This is hardly a new question, but, so long as it doesn’t provoke a prolonged bout of navel gazing it can still serve a purpose in prompting us to really think about the whys and hows of our endeavour.

Having, with Roger Burridge, recently sought to re-ignite interest in the work of Yale ‘law and policy’ scholars Laswell and McDougal, I was interested to see that Ian’s paper also drew on them to justify the view that a primary aim of university education is to ‘promote’ the major values of democratic (liberal) society. This affinity between (legal) education and democracy was then drawn out by reference to the works of three philosophers: the arch pragmatist John Dewey, the neo-pragmatist Richard Rorty and the Aristotelian Martha Nussbaum. The strong link between these philosophical traditions and educational constructionism was not specifically signposted, as it is in Paul Maharg’s recent work, though the conclusion is there to be drawn , and Ward’s conclusions are, I think, largely consistent with a constructionist viewpoint – an emphasis on education as a process of participatory and experiential knowledge-making, and a strong commitment to the ideal of education as a route to human flourishing, particularly through the construction of a deeper intersubjective sense of what it is to be human. Interestingly though, in this process, the emphasis in the paper seemed to shift from a notion of ‘liberal’ to ‘progressive’ legal education – conveying a sense that perhaps not all liberalisms are equally capable of delivering on the democratic imagination?

The paper then focused on the question of approaches to learning. Here Ian drew very much on the resources of his own experience as a teacher and writer within the genre of law and literature, and particularly in his recent work that is moving (as Ian has recently described it elsewhere) towards the construction of a ‘poethics’ of terrorism. I found this compelling; the idea that as lawyers we need to pay attention to Rorty’s ’strong poets’ of the human condition and to nurture Nussbaum’s ‘narrative imagination’ makes a convincing case for placing literature closer to the centre of legal education. There was, I thought, a strong hint in the paper that Ian, along with many in the critical tradition saw the strangeness of the stranger, the very otherness of the Other, as a (perhaps the) key problem confronting modern social and legal relations. That is a position with which I have considerable sympathies, and I would accept, methodologically, the claim that what Nussbaum has called the art of ‘attentive novel reading’ can be a powerful resource in making the other more real and more proximate. And also more than that, I think. Paul Ricouer – one of our great thinkers on self and otherness, sees the self as derived fundamentally from its narrative location. An answer to the question “who am I?” comes not from some objective truth structure but from the stories in which the person is located. Reading, writing and exploring these stories thus becomes a powerful resource in understanding (constructing) the self qua self, and in relation to (or with) the Other.

Moving in a very obvious way beyond what Ian said, his presentation certainly had me thinking about the ‘how’ of engaging students in these stories. I’m sure there are some useful resources on this within the law and literature scholarship, with which I’m not familiar. I was drawn to another useful/challenging point Ricouer makes, which is that writing isn’t modelled on, and indeed cannot be understood on the model of speech. Writing he argues ‘intercepts’ the relation to the world and the relation between subjectivities that exist in the situation of speech. Writing in other words can be safer, more distant, perhaps more ‘cooked’ than speech. If we are going to treat an understanding of otherness as critical, I don’t think we should treat writing as a substitute for speech forms and perhaps images too that will bring the other closer. I guess I want a larger palette, and I don’t think its just about creating impact – though what it is about I’m less sure. Ian’s presentation brought this to the fore in an interesting way. Near the end he juxtaposed the awful, iconic, ‘falling man’ image from 9/11 with Don DeLillo’s description of the scene in his novel of the same name: “this picture burned a hole in her mind and heart, dear God, he was a falling angel and his beauty was horrific”. The power of each was reinforced by the juxtaposition, one that brought about, partly through language, a different way of not just ’seeing’ the image but experiencing the event. I was struck, in a way for the first time, by a feeling that the horror of 9/11 as an experience came across actually more powerfully in the falling man than in the image of the planes’ collision with the twin towers, precisely because it reduces the scale of the catastrophe to the level of a single human being: an other that is also me. The potential to embed that kind of transformational – and transgressive – experience into learning about law seems both exhilarating and fundamentally destabilizing.

Three days to go…

… to the 2009 UKCLE Annual Conference at Warwick. I’m looking forward even more than usual to this one. The team at the Centre have worked incredibly hard to pull it together and the programme looks extremely interesting. There are quite a few ‘new faces’ lined up (not that it isn’t good to see the ‘regulars’ out in force) and we are trying some innovations this year, including a conference wiki. I will be chairing a session and introducing the keynote, and hope to make time to blog from the conference. That’s the theory anyway!