ILEC IV – final post

I delivered my own paper in the final set of parallel sessions last Saturday. Entitled ‘Lawyering in liquid times: Values and professionalism in an age of uncertainty’, it took Zygmunt Bauman’s concept of liquid modernity as a framework for reflecting on changing values of legal professionalism. The paper focused on three problem areas which I defined as: achieving trust in the profession; maintaining moral identity and a sense of lawyering as ‘meaningful work’ (adopting Simon’s term), and, lastly, limiting lawyers’ “distantiation” (Bauman’s word) from the consequences of their acts. I looked at each of these in the context of potential changes in professional values and ethics being heralded-in by the new regulatory objectives of the (English) Legal Services Act 2007 and the proposed move to outcomes-based regulation by the Solicitors Regulation Authority. I argued that these changes were indicative of a move to a more market-based trust model, and offered some potential to reinvigorate both collective (at the level of the firm) and individual moral responsibility. I remained fairly skeptical whether the changes, by themselves would make a significant contribution to (re)building moral identity, and argued that they offered little solution in particular to the problem of distantiation. The paper generated some interest, though I’m not sure at this stage that there is enough in the idea to merit development into a full article. Thanks though to Kim Economides, Limor Zer-Gutman, and Russ Pearce for their observations and enthusiasm!

The final session of the conference involved a tough choice between a panel on ethics and neuroscience, and one on legal ethics and jurisprudence. I wish I could have attended both. (The ability to clone oneself would have been useful throughout the conference – I do think we could have had fewer parallels and gone into a third day.) In the end I attended the session entitled ‘Philosophical legal ethics: Ethics, morals and jurisprudence. It involved a roundtable discussion, consummately facilitated by David Luban, between a panel of ethics luminaries: Tim Dare, Daniel Markovits, Katherine Kruse, Stephen Pepper, Bill Simon, Brad Wendel and Alice Woolley. I’m not going to try and capture the session here, but the papers will be worked up for publication in Legal Ethics, and are available in their original form on SSRN. However, I was particularly struck by the suggestion, near the end, that most philosophical issues around legal ethics are actually matters of political rather than moral philosophy. Some food for thought here.

Work is now beginning on ILEC V, which will take place in in Banff, Alberta, on July 12-14, 2012. A steering committee has also been set up to look at creating a new international association of legal ethicists. It’s really great to see what is now coming out of the process that Kim Economides and I started on a wing and a prayer in Exeter back in 2004.

Live blogging from ILEC IV

At Stanford University for the fourth International Legal Ethics Conference, hosted by Stanford Law School and the Center for the Legal Profession. The main conference started yesterday. There has been a fair amount of discussion and debate about legal ethics education, including a plenary panel yesterday morning on whether legal ethics should be a required course, with contributions from Stephen Pepper, Christine Parker, Andy Boon, Brent Cotter and Richard Wu. Chaired by Kim Economides, it was perhaps less than a groundshaking surprise that the panel agreed that it should; well it is a legal ethics conference after all, but an interesting discussion nonetheless. For most of the conference however I have been engaging with more ‘mainstream’ ethics and regulation, rather than education per se. It has so far been a great conference. Most of the panels are multi-jurisdictional, and this has worked very well in drawing out interesting contrasts and synergies.

I’m attending another great session at the moment, with Richard Devlin (Dalhousie, chair) Adam Dodek (Ottawa), John Dzienkowski (Texas), Kath Hall (ANU) and Kay Lauchland (Bond) on the duty of loyalty. Loyalty is, of course, a core value of the profession, constituting a duty in its own right, underpinning ideals of zeal, and reflecting the fiduciary basis of lawyer-client relations, but also, as the papers by Dodek, Dzienkowski and Lauchland noted, underpinning principles of conflict of interest, and generating all sorts of interesting revolving door problems, former client conflicts (that tend not to be treated as conflicts), and difficulties for lawyers engaging in pro bono work that could bring them into conflict with their firms’ regular clients.

I was particularly interested in hearing Kath Hall’s paper, focused on issues of zeal and good faith in corporate/transactional work. Her paper looked at how hyper-zeal might be rationalised and not be perceived as an ethical failure by lawyers. She particularly emphasised the affective/emotional component of loyalty. which is reinforced by lawyers’ stories and their group experiences as members of the law firm community. Part of Kath’s solution appeared to involve importing the duty of good faith from corporate law as way of extending ideas of loyalty beyond the norm. In particular she emphasised that a duty of good faith could extend consideration to non-clients, and would expressly include a duty to uphold the law. I think this point is an interesting one, though personally, as argued in Nicolson and Webb (Professional Legal Ethics, Oxford, 1999), I’m not sure this is the right order of priority. Although fiduciary law has conventionally treated good faith as a subset of loyalty, I think a principled case can be made for viewing good faith as the overarching duty, setting a limit on zeal from above, not below.

And just to prove there really is no escape, John Dzienkowski’s paper did raise an educational issue by touching on the question of how live clinics might themselves create particular conflict (checking) issues – not an issue I’d ever really considered in the UK context.

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.

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!

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!

TGI Friday

Just back from a day in London at a one day conference organised by three enterprising PhD students at Queen Mary. The theme was “Legal academics: Spectators or Players?” and the organisers had got a really interesting group of people together to discuss the role of legal academics and their relationship with legal practice. It could all have been a bit of a non-event, but as it was it was one of those days where the synergies worked and it sparked all sorts of interesting research and policy questions, much of it around the role of legal education in this relationship. I hope it leads on to some real outputs; it would be a shame to waste all that energy!

Its just as well it was an energising day as the batteries here are running pretty low. Its been a busy summer at the end of a long year. I’ve been working hard on about three different writing projects, as well as trying to keep on top of my work for the Centre and the RAE, so its been pretty much six day weeks since May, with just a week off for hols in August. Not what most people think us academics do with our time, I suspect. Even so there have been good bits. the Warwick RAE is taking shape, I am getting through the writing – if slowly – and UKCLE has just had its annual Advisory Board, and got some great feedback and support from the Board, which is so valuable to the team. Now its all about gearing up for the new academic year which starts in a week’s time; I’m teaching a first year undergraduate module this term, for the first time in a long time, and have also taken over the leadership of the LLM Legal Education, and there’s still a fair amount to do on both those fronts. But tomorrow, no work!

IP and communities of practice

I spent a long but interesting day yesterday in Birmingham with a group of Intellectual Property teachers (OK, that may not be your notion of interesting, but, please, suspend your disbelief for a moment, not least because they were a nice group of people….)

The event was the inaugural workshop of the European Intellectual Property Teachers’ Network, an informal grouping that has grown out of an equally informal UK-based group that has met fairly regularly over the last six or seven years. The event itself was pretty packed, with two keynotes (from Steve Rowan, Director of Intellectual Property Policy at the UK Intellectual Property Office, and Marielle Piana from the European Patent Academy of the EPO) and four panel sessions. The spread of subject matter was also quite broad, with much discussion of appropriate content, design and delivery: the place of history, generalist vs specialist modules, problem-based learning, virtual delivery, and so on. Interdisciplinarity was a strong theme (music to my socio-legal ears!), recognising the extent to which an understanding of IP policy and practice benefits from, perhaps even necessitates, a strongly interdisciplinary approach. The need to teach IP management skills and issues also emerged from a couple of presentations, including an impressive example from the Technical University of Munich of the way in which student motivation and learning could be stimulated by a deep, problem-based, approach to learning using case studies based on real high-tech companies.

In a way what was most exciting for me was not so much the content (I’m not an IP lawyer) but that the event happened at all, and that it brought together people teaching aspects of IP from different countries, different disciplinary backgrounds, and for different purposes. In my experience its quite unusual to find a group of HE people from across a field of study like this meeting to talk about teaching and learning. There was certainly a sense of interest and engagement in the debates and a willingness to sharing ideas, and I have little doubt that the shared IP context enhanced the feeling of participation in a common enterprise. Full credit to Claire Howell (Aston Business School) and Duncan Matthews (Queen Mary, University of London) for pulling it all together.

The event has got me thinking rather more concretely about something that I’ve come across increasingly frequently lately – the idea of communities of practice (CoP). The term itself seems to have been coined by Jean Lave and Etienne Wenger and used extensively in their book Situated Learning (Cambridge University Press, 1991). (In a later book -Communities of Practice. Learning, Meaning and Identity, Cambridge University Press, 1998 – Wenger goes on to explore the notion of a CoP in much greater depth.)

Lave and Wenger’s work starts from the supposition that all learning is social and comes primarily from our experience of participating in daily life as a series of engagements with others in joint enterprises. From this perspective, at its simplest, a community of practice is a group of individuals participating in shared activity which is characterised by collective or collaborative learning. This process of “mutual engagement” in fact comes to define both the practice and the community itself. Communities thus develop over time around things that matter to the people involved. They develop a ‘shared repertoire’ of communal resources and symbols that carry the accumulated knowledge and experience of the group. Rather instrumentally, they interest me because they sound like potentially powerful mechanisms for sharing knowledge, solving problems and innovating.

I’m not sure that I know enough about CoPs yet to differentiate this concept from a lot of other work on organisational learning, but Wenger’s sensitivity to social complexity and what seems to be a strongly constructionist view of the world are, for me, intuitively appealing and I think the label itself is quite powerful. At UKCLE we are very much focussed on supporting the needs of our subject community. While I think that’s an important focus and a useful shorthand for us, not least to remind us where our primary responsibility lies, it is descriptively and developmentally rather a blunt notion. Even within law as a single discipline there is a multiplicity of more or less well defined ‘communities’ and interests which overlay what I suspect may still be a pretty individualistic sense of what it is to be a ‘law teacher’. Could CoPs be a useful way of not just thinking (‘sociologically’) about how sub-disciplinary cultures evolve, but a means of actually constructing and developing sub-disciplinary interests and activities? (The Society of Legal Scholars’ Subject Sections in the UK – broadly akin to AALS Sections in the US – perhaps perform some of that function already, but probably not all of it). Indeed, can you construct a CoP or is it more an emergent property of a field or organisation? What features appear to sustain and grow a CoP? One of the questions at the end of yesterday’s event, not surprisingly was, “what next”, and the CoP literature might generate some interesting ideas. I’ll try and write some more about this when I have more time, and have been able to do some more spadework!