First thoughts on the ABA Commission on the Future of Legal Education

Publication yesterday of the membership of the American Bar Association’s new think-tank on legal education has me hopeful that this could be a much more significant exercise (both for the US and in terms of benchmarking thinking internationally) than the last (2014) ABA Taskforce (which I blogged about here).

I’m afraid that as a non-US scholar, some of the names don’t mean much to me, but the ones that do had me sit up and take notice. First, the Commission is chaired by Prof Patricia White, Dean of Miami Law School. Miami has always been an interesting place (William Twining and John Flood – two leading Brit scholars that I know – have had long associations there) and of course Miami is well known in innovation circles as home of the fabulous Law Without Walls (LWOW) phenomenon. Then there are Harvard’s Prof David Wilkins, Director of the Center on the Legal Profession, and USC’s Prof Gillian Hadfield – both scholars I would consider at the top of the game in matters of the legal profession and legal services. I particularly like Gillian Hadfield’s work on legal systems design, and her insights into the impact of the market for training on access to justice are crucial (they certainly influenced some our thinking in the English Legal Education and Training Review – LETR). On the practice side, the absence of Wall Street, and the presence of pro bono champion David Stern alongside Spotify GC, Horacio Gutierrez, points to some serious thinking about the changes and challenges facing future professionals. Last, and perhaps the biggest surprise, is the inclusion of the inimitable Richard Susskind. It strike me as very unusual for an ABA Commission to look to expertise from outside a US jurisdiction, and given Richard’s quite provocative views on the failure of legal education to move into the 21st Century (see his Tomorrow’s Lawyers, and related Consultant’s Report for the LETR), this promises to be interesting.

The Commission describes its brief as follows:

The Commission on the Future of Legal Education will take a leadership role in anticipating, articulating and influencing what will be dramatic changes in the legal profession in the next decade and beyond. The Commission will explore possible changes to methods of training and testing the future generations of law students. It will seek to bring the perspectives of various constituencies to the table including judges, deans, professors and practitioners. Various subcommittees of the Commission will focus specifically on key issues including the bar exam, alternative teaching methods, length of law school and other issues identified by the group.

Note too the unusual emphasis on (alternative) pedagogy in this statement, a topic this kind of high level exercise often overlooks. In short: watch this space!

Further reflections on the FLIP Report – 2. legal education

The NSW FLIP Inquiry (see my previous post for initial reaction) also recognises that disruption of law has implications for legal education and training. It therefore looks at the need for change in legal education in Chapter 6 of the Report. A warning now: for me this was the most disappointing feature of the whole report. The Inquiry’s limited engagement here is reflective of what I consider to be a persistent failure (not just in Australia) in the profession, regulatory bodies and academia to engage deeply with the complex field of education and training policy. Note that the ‘policy’ word here is crucial to understanding my criticism. Lots of us do think deeply about how we teach/should teach specific areas of law; admission boards across the country take their job of assuring standards very seriously; no one argue legal education is irrelevant. But, there has been little fresh thinking in policy terms about the changing nature of legal work, and hence legal competence, and what needs to be regulated to assure competence (the core policy question). The Law Admission Consultative Committee started the task of asking the hard questions in 2015, but recognised that this process would need a more extensive review than it could then undertake; this is still in the pipeline.

Turning to the FLIP Report, the first thing that is striking about chapter 6 is just how little discussion there is. In three* quite brief pages, the report seeks to determine “the skills and areas of knowledge that were perceived as necessary for future legal practice” as well as identify the ‘extent’ to which these things are taught, and the where, when, and how of their teaching. The answer to that, of course, is not going to be found in the remaining two and a half pages. The Report does conclude that (p.6):

“In a changing environment, the skills and areas of knowledge likely to be of increasing importance for the graduate of the future include:

  • technology
  • practice-related skills (eg collaboration, advocacy/negotiation skills)
  • business skills/basic accounting and finance
  • project management
  • international and cross-border law
  • interdisciplinary experience
  • resilience, flexibility and ability to adapt to change.”

Beyond that, it offers no roadmap or substantive recommendations. To its credit, the Report calls for more research into what is actually being taught, and how these emerging areas might be taught and developed within ‘existing’ curricula.** However this also means that, in the end, the Report rather shovels the problem off elsewhere, and actually says very little that is new.

The Report, perhaps unwittingly, also demonstrates the depth of the problem that legal education and training systems currently face. In the course of discussion, it juxtaposes three propositions. First it acknowledges that:

No existing areas of law or skills were identified as being able to be removed from the law degree, PLT [practical legal training] or CLE [continuing legal education]

This in and off itself is deeply problematic, but it then also recognises the desirability of producing both more consistently-trained, and more “practice-ready” graduates (p.77). What if these three things are actually incompatible?

Consistency is one of the current buzzwords. We have seen it in the context of US (ABA) debates around the need to move to competence-based standards, in the UK’s Legal Education and Training Review, and in the ongoing debate around legal education and training in Hong Kong. Inconsistency can be a problem, for sure. It makes it harder to make assumptions about what people do or don’t know. Does that make it a regulatory problem in itself? Or is it a regulatory problem only when it points to underlying failures of competence by some or all training providers? The latter is a lot harder to demonstrate.

Practice-readiness is an over-used phrase. It also needs to be considered somewhat critically. Much of the argument for practice-ready graduates is about economics, not enhancing competence. It is about the economic pressure on law firms to transfer more of the costs of training (which clients are less and less willing to pay) onto the trainees themselves. It also, I think, assumes a degree of homogeneity (so consistency and practice-readiness may actually be part of the same argument). In an increasingly segmented sector, is more homogeneity actually what we need? Can we produce a more homogeneous ‘product’, whilst also ‘creating’ graduate lawyers who are more flexible, creative, and better at not just managing but embracing change (see p.79)?  Practice-readiness as a concept is strikingly analogous to supermarket hot roast chicken. It is a consistent product, for sure; it is superficially attractive; it probably will save you time in the short term, but it is not as satisfying as the dish you could produce yourself with a bit more time and effort, and its not really something you would want to serve up to important guests (clients)!

This is not to say we can’t or shouldn’t make some changes, or even get closer to the ‘ideal’ of practice-readiness, but to do so we need to recognise two things:

  1. Law teaching is subject to the laws of physics. So long as degrees and PLTs operate within the time-space continuum, there is a limit to what can be added before other things have to be removed. Core content tends to expand rather than contract, and legal education reviews (I speak from direct experience) have struggled to counteract the flow. The Flip Report, to be fair, recognises the problem, but (unsurprisingly) offers no solution. We need to have a proper, evidence-based, discussion about the nature and boundaries of initial competence, in the context of an increasingly segmented legal services market.
  2. It will likely cost much more. If we are serious about practice-readiness, and meaningful assessment of competence, we need to look to medicine. Law schools would need to become more like teaching hospitals, and (final) assessments more practice-based. The (English) Solicitors Regulation Authority’s (SRA) plan for part 2 of their proposed Solicitors’ Qualifying Exam (SQE) is a good example of the latter. Unfortunately, it is paired with a Part 1 assessment that has failed to address the problem of an ill-defined notion of competence within an ever-expanding knowledge base. Consequently I predict Part 1 of the SQE is an accident waiting to happen.

We need to do better.

*There are actually four in total, but I’m discounting the descriptions of hackathons and law apps courses; great innovations though they are, they do not actually address most of the underlying policy issues.
**Note that the Report does not call for us to review the possibly quite dismal consequences (eg, for wellbeing, creativity and deep learning) of much traditional law teaching and learning.




The Law Society of New South Wales, ‘FLIP Report’: some initial thoughts

The Future of Law & Innovation in the Profession (FLIP) commission of inquiry took place last year as an initiative of The Law Society of NSW. Its final Report, available online here, which was published last month adds to the growing collection of recent, profession-led, inquiries into the future of legal services, including the American Bar Association’s Commission on the Future of Legal Services (on which FLIP was modelled), and the Canadian Bar Association’s Futures Initiative.

In its own words, the broad aim of the inquiry was to:

better understand the changes taking place in and around the legal profession and to provide the profession with recommendations that will enable lawyers to better
accommodate new concepts and ideas, and adapt to changes that are taking place…

As the title suggests, its change focus is predominantly shaped by its legal profession orientation, and by the profession’s continuing fascination with technology and process innovation/disruption. This of itself, of course, shapes and skews the nature of the inquiry (something I’ll say more about later). Nonetheless, the FLIP Report 2017 is an interesting, informative and very clearly argued presentation of some critical issues facing the profession in NSW, and, one must suspect, Australia more generally. In this short review, I offer some initial reflections on the value and insights of the process. In subsequent posts I will focus specifically on two areas of the report that are of particular interest to me: its observations on professional regulation and legal education.

The inquiry was organised as an exercise in thought leadership. It did not commission research, and it’s not clear how extensive a review it undertook of the voluminous literature, though there are useful end of chapter references, and a short bibliography. It structured itself as a commission of inquiry and took evidence, both orally and in writing from a range of ‘witnesses’. This worked well in terms of producing a focussed and often pithy report, with some useful quotes and insights from many who are innovators and thought leaders in the field. At the same time, this methodology also placed the onus on the ‘commissioners’ to inquire deeply and thematise the evidence effectively. This is a demanding task, and in these respects the Report is sometimes a little lacking. For my money, though it acknowledges (astutely) the fundamental nature of the questions change raises at the intersection of “jurisprudence, ethics and technology” (p.45), it does not engage deeply enough with the capacity for technology to transform not just process but the form of law itself. Blockchain in this respect (which is discussed in the Report) is really just the tip of an iceberg.

Moreover, the profession-centric nature of the process has its limitations. Law is not unique in the challenges it faces, and a broader ranging inquiry might have helped the commissioners take that deeper and longer view. The great majority of the 103 witnesses were from within the legal profession and legal academia: the inquiry could have heard more widely from experts in other professional service sectors, and the consumer voice is also somewhat lacking. The focus at times is rather protectionist (I’ll say more about this in the post on regulation). Consequently, while the Report (chapter 4) rightly highlights both the potential for technology to facilitate access to justice, and the risks of continuing under-investment in technology for personal legal services, the potential for technological and regulatory disruption and deprofessionalisation to enhance (alternative) access to justice remains something of an elephant in the room.

The Report makes a total of 19 ‘Key Recommendations’ which are framed as actions for the Law Society. A number of these are, as one might expect, useful but fairly unexceptional ‘inform’ and ‘advocate’ recommendations, but two structural initiatives in particular are of wider interest, and reflect the influence of US thinking on the Report. First, Recommendation 2 calls on the Law Society to establish a “centre for legal innovation projects” to raise awareness, conduct research, develop training and create and participate in strategic partnerships (interestingly universities are not mentioned in the range of prospective partners) in respect of legal technology and innovation. Secondly, Recommendation 3 invites the Law Society to “consider establishing an incubator in New South Wales dedicated to technology-enabled innovation in the law”. Both of these initiative are to be welcomed, but at the same time, their potentially limited scale and reach must be acknowledged. The Law Society is not the ABA, and individual state-centred initiatives are not going to have either the resources or the reach of a national centre or national incubator initiative. A recommendation that the Law Society commit itself to collaborating nationally on such initiatives with the Law Council of Australia and other state representative and co-regulatory bodies, would have been groundbreaking, as well as offering the profession considerably more bang for its buck, but, I guess, may have been less ‘positionally’ attractive, and/or less of a ‘headline’ for the Society.


Reviewing everything…?

Yet another long gap since the last post, so I thought I might as well make the reason why the subject of this post!

The word review seems barely to have left my vocabulary for the last four years. Having ‘escaped’ to Aus post-LETR, I have got involved in a number of other smaller (thankfully) review processes. The largest of these is, of course, the ongoing Comprehensive Review of Legal Education and Training in Hong Kong, which Professor ATH (Tony) Smith and I are undertaking with, and under the excellent chairmanship of, Judge KH Woo. We are currently working on our draft report, so I obviously cannot say much about it, other than to note the extent to which the issue of standardisation of assessment, has, in the wake of the Hong Kong Law Society’s decision to press ahead with a ‘common entrance examination’ to the profession, taken centre stage. The parallels with the recent consultation on centralised assessment by the SRA in England and Wales are obvious, and we are looking at the SRA consultation in terms of the arguments and lessons that may be learned.

At a more local level I’ve also been involved in two other continuing processes: the validation of the ANU’s new online JD program. as well as working with colleagues at Melbourne on our own internal curriculum review of our JD. (No real risk of conflict of interest here as Melbourne currently has no particular interest in joining the JD online movement). The online trend in Australia is itself interesting, and much further advanced than in the UK. By my reckoning ANU is the sixth Australian university to launch an online JD, but the first from the Go8 research intensives. It draws heavily on the experience of online delivery built-up by the ANU Legal Workshop, and as one might expect, a few of Paul Maharg’s fingerprints are evident in the design of a quite innovative curriculum design. The Melbourne work has been challenging, and a good reminder of how much curriculum change is like trying to turn a supertanker – much easier to start with a blank sheet of paper! We have shared some ideas in draft with the faculty – the most radical of which is the possibility of combining our existing Dispute Resolution and Legal Ethics courses into a transactional ‘lawyering’ course using blended learning to facilitate the transactional element. The idea is still very much on the drawing board; we need to assess its feasability – both regulatory and in terms of deliverables – but it’s an exciting conversation to be in.

Jogee and Ruddock: procedure and precedent

The recent UK Supreme Court and Privy Council (JCPC) decision in Jogee and Ruddock [2016] UKSC 8; [2016] UKPC 7 has generated considerable comment on the substantive issues, most of it (at least cautiously) welcoming. The case concerned criminal liability for a ‘joint enterprise’ – a particular form of accessory liability that has long been viewed as a problematic feature of numerous criminal prosecutions, including in high profile cases such as the 1952 murder conviction of Derek Bentley (who was posthumously pardoned) and the more recent convictions of Gary Dobson and David Norris for the murder of Stephen Lawrence.  The Courts’ decision overturns what appeared to be settled law in England and Jamaica, leading to the prospect of an uncertain number of reviews of prior convictions, and to possible ramifications for other common law jurisdictions. There has, however, been little reference to some interesting features of the case from the more general perspective of ‘legal methods’, which is what I intend to address in this post.

Procedural innovation

Procedurally, this is clearly a landmark case in that it is the first time that the UK Supreme Court and the Judicial Committee of the Privy Council have sat together to hear joined appeals from a UK and a Commonwealth case. Joinder of appeals is, of course, structurally quite feasible, given that the Supreme Court Justices also constitute the backbone of the Privy Council bench, and the courts share a common infrastructure as well. Nonetheless, it is, so far as I can tell, unprecedented – at least in the ‘modern’ era since the jurisdiction of the two courts was settled by the Judicature Acts and the Appellate Jurisdiction Act 1876 (I would be happy to be put right on this if anyone knows differently).

Interestingly, the judgment itself makes no reference to the novelty of the procedure, nor highlights any authority for conjoining appeals across the two courts’ jurisdictions. As there is nothing express in the Rules of either court, or in their respective Practice Directions, I think we must assume that the power resides in the courts’ inherent jurisdiction to determine their own procedure (note r. 9 of both the Supreme Court Rules 2009, and the Judicial Committee (Appellate Jurisdiction) Rules 2009).

Implications for precedent in England and Wales

Over the years a number of cases have arisen where issues have been decided within the jurisdiction of the Privy Council that would, had they been decided by the House of Lords/Supreme Court, have created a binding (rather than persuasive) precedent in English common law. Divergence of this sort has occasionally caused problems for the Court of Appeal and lower courts, who have found themselves confronted by conflicting House of Lords or Court of Appeal and JCPC decisions. The close relationship between the Supreme Court and JCPC has sometimes been used to enable English courts to take a flexible approach to JCPC precedents, blurring the persuasive/binding distinction, as when following Attorney General for Jersey v Holley [2005] UKPC 23 (where an exceptional nine-judge Board of the JCPC was convened specifically to clarify the common law on provocation – see, eg, the discussion in Holland & Webb, Learning Legal Rules, 8th ed, Oxford UP, p.171). The ability to join cases in the manner of Jogee and Ruddock obviously provides a further mechanism for preventing the niceties of stare decisis from getting in the way of a good (common) solution. However, it is, of course, a very limited innovation. It is fairly unlikely that the factual circumstances will often arise to make joined appeals possible. Consequently it probably does little to reduce the need for continuing judicial flexibility a la Holley

Impact in Australia

The decision may shortly have important ramifications in Australia. The history of the doctrine of extended common purpose reflects an interesting interplay of common law principles from a range of jurisdictions. The rulings by the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168  and the House of Lords in R v Powell, R v English [1999] 1 AC 1, both overturned by Jogee and Ruddock, built substantially on decisions of Australia’s High Court in the 1980s. Moreover, in an interesting flow of authorities, the High Court in turn relied on Chan in McAuliffe v R [1995] HCA 37, to reach the same conclusion on extended common purpose as the House of Lords in 1999. Crucially, the High Court is due to hear argument next month in an appeal on ‘joint enterprise’ from the South Australian Supreme Court’s decision in R v Presley, Miller & Smith [2015] SASCFC 53.  It is notable that the doctrine was last considered by the High Court as recently as 2006, when – following argument before the full Court – it refused leave to appeal in Clayton v R [2006] HCA 58 (Kirby J dissenting) . That Presley, Miller and Smith were not similarly rejected may be, in a sense, fortuitous. The case raises issues of intoxication not considered in McAuliffe or Clayton, and it is clear from the transcripts that the High Court was only willing to grant special leave on this ground, and would not re-open the debate about extended common purpose more generally – see eg Presley v Director of Public Prosecutions for the State of South Australia [2016] HCATrans 17 (12 February 2016).

The timing of Jogee and Ruddock thus proves interesting, to say the least. The Supreme Court/Privy Council were clear in their unanimous view that, on a proper reading, the earlier Australian jurisprudence (in Johns [1980] HCA 3 and Miller (1980) 55 ALJR 23) did not justify the wrong turn taken by the JCPC in Chan (see para 67). In this light, will the High Court of Australia stick to its McAuliffe guns? The Court has been quite robust in carving-out a distinctive Australian ‘common law’, so it may not be fazed by the prospect of maintaing its own settled jurisprudence, despite continuing controversy over the operation of joint enterprise laws. At the same time, it by no means ignores the decisions of the UK Supreme Court/Privy Council. For the present we must wait and see.

Some thoughts on the proposed SQE and its implications for the English law degree

I highly recommend Richard Moorhead’s blog on the recently published consultation by the Solicitors’ Regulation Authority on the  standardised competence assessment for all those seeking qualification as a solicitor in England and Wales. In this post I just want to add a few thoughts of my own to the conversation. I’m also conscious that the SRA’s work is of interest to a wider audience than the UK. Here in Australia, for example, the Law Admissions Consultative Committee is continuing to follow post-LETR developments in England closely. The Hong Kong Law Society has also proposed the introduction of a Common Entrance Exam, though the scope of the HK proposal is less radical, and debate has, for now, been paused and rolled into a wider review of legal education and training that is now underway.* In this post I intend to reflect only the possible implications of the SRA proposal for the English qualifying law degree (QLD) – not least because I want avoid anything that might appear to pre-judge the Hong Kong debate.

The SRA consultation paper starts from three possible, broad, models for a potential qualification regime (para 11):

  • Option 1: Continuing to prescribe a limited number of pathways to qualification, the details of which we specify, which are aligned to the Statement of Solicitor Competence Statement, Statement of Legal Knowledge, and Threshold Standard

  • Option 2: Rather than prescribing a limited number of pathways, authorising any training pathway developed by a training provider which enables a candidate to demonstrate they can perform the activities set out in the Statement of Solicitor Competence to the standard required in the Threshold Standard.

  • Option 3: Developing a centralised assessment of competence that all candidates are required to undertake prior to qualification, again aligned to the Statement of Solicitor Competence, Statement of Legal Knowledge and Threshold Standard.

Option 1 represents largely a continuation of the status quo; option 2, I suggest, comes closer to the base position advanced in the 2013 LETR Report, while Option 3 is the SRA’s preferred approach for reasons essentially of cost, consistency and flexibility/diversity. The paper offers some compelling arguments for its preferences, and some balanced evaluation of the options, though I felt overall that it was perhaps a little more robust in critiquing options 1 and 2 than it’s preferred option 3 – though it does also, rightly, point out that none of the options are mutually exclusive (and indeed the LETR Report could be seen as recognising the value of elements of both options 2 and 3 – the latter notably in the use of standardised clients in skills assessments).

Much of the detail (and hence the devil) of the preferred approach remains to be developed. The paper is clear that the SRA anticipates a separate two-part assessment of knowledge and skills. The modularised assessment of knowledge must be completed first, and would be assessessed via computer-based objective testing. The second part would involve standardised practical exercises akin to the standardised clinical  assessments used by medical schools and in the current Qualified Lawyer Transfer Scheme. The paper is relatively open on the question whether, and if so how much, work experience should be required before the Part 2 assessments are completed.

The proposed scope of the knowledge assessments is broad. It will encompass ethics and professional conduct, wills and probate, taxation, business law and practice, property law, torts, criminal law and evidence, criminal litigation, civil litigation, contract law, trusts and equitable wrongs, constitutional law, EU law, human rights, and the English legal system (para. 41). The assessments are to be modularised, to facilitate “integration with other education and training programmes.” There is, however, no discussion at this stage of the broader assessment framework, prerequistes and sequencing of modules, or of the frequency of assessments.

Implications for the QLD

The paper is very clear that possession of a law degree should not be a basis for any exemptions from the knowledge (or skills) requirements of the SQE. In short, if this proposal goes through, the QLD as we currently think of it is dead – at least for the solicitors’ profession.

I agree with Moorhead that, if these proposals go through, we are likely to see the creation of a more divergent education and training playing field: possibly with growing differences between traditional liberal and what Moorhead calls ‘almost practice ready’ law degrees, plus a greater variety of postgraduate and, I would add, possibly non-graduate (in structure, though potentially graduate in level) options such as apprenticeships.

The consequences of all this for the law school sector as a whole are potentially substantial, and may be very serious. They include:

Recruitment: Law has undoubtedly grown as an academic subject on the back of its professional status and recognition. Even though less than 50% (and I suspect in some post-92 law schools the proportion could be 30% or even lower) actually make it to being a solicitor, between 60%-70% appear to enter law school with solicitor/barrister ambitions. Recruitment implications of the loss of QLD status are thus both potentially significant and very hard to judge. Will regulation reshape the market for training, or will the market for training adapt as minimally as possible to the regulation? There are significant vested interests involved, including the elite law schools, and the big LPC providers who will not let a multi-million pound business simply disappear overnight. Much may depend on how the elite law firms and their ‘preferred suppliers’, the elite law schools respond to these changes, and whether they (continue to) function as a congeries of reputational interests. (The reputational risks of marginalising the law degree are not addressed in the SRA paper. In the LETR research phase, by contrast,  quite a lot was made of the reputational importance of the graduate standing of the profession in the international marketplace. Whether ‘graduateness’ without the Oxbridge or Russell group badge carries the same cachet is moot). If some form of LLB + LPC remains a significant pathway, the recruitment effects may be mitigated – at least for some parts of the sector. If it doesn’t, the future becomes infinitely more difficult to predict.

Expansion of the knowledge-base – The new knowledge base essentially represents an amalgam of the knowledge requirements of the QLD and LPC. It thus reflects the continuing influence of the reserved areas of practice and thereby excludes much of what many (especially commercial) solicitors do. For those who want to develop nearly-practice ready degrees, it might not change the game that much from the current exempting degree model. However, that assessment also depends in large part on how much current flexibility over (QLD) content is reduced by the so-far unwritten assessment framework. To expect the  academic community to vote on the options in the absence of this seems rather like asking turkeys to vote for something that may or may not be Christmas; you really would like to know first.

Doubling-up of assessment burden: those who continue to do degrees are likely to be confronted with a growing assessment burden. Under the preferred model university assessments will not count for the SQE, and it would be a radical change of policy for universities to accept entirely external assessments as part of a (concurrent) degree. Moreover, the fact that the SRA currently sees SQE assessments as both pass/fail and sitting outside the Framework for Higher Education Qualifications (FHEQ) (see paras 57-58) makes any inclusion by recognition a less, not more likely, prospect. The impact, including diversity impact, of the scale, scope, timing, frequency and cost of SQE assessments on law students specifically appears not to have been addressed at this stage.

Implications for innovation and diversity of intellectual approaches: a drift towards nearly practice ready degrees may have significant ‘unintended’ (or from the SRA’s point of view, ‘none of our concern’) consequences for academic law. Joint degrees may decline because they simply cannot address enough of the SQE ‘core’ knowledge. Unless a clear secondary market develops in SQE test preparation (a matter which in itself may have some diversity implications), universities are also likely to find themselves under some pressure to teach to the test. That is likely to (further) undermine socio-legal, theoretical or other alternative intellectual approaches to doctrinal legal analysis. (Recall that the LETR Report data highlighted the limited value professionals attached to jurisprudential or socio-legal content/ approaches.)

The anxiety has begun…

*The Hong Kong Review under the auspices of the Standing Committee on Legal Education and Training is being undertaken by a panel comprising Justice KH Woo, Professor ATH (Tony) Smith and myself.


Giving good judgment

I’ve recently finished revising my bits of writing for the ninth edition of Learning Legal Rules (co-authored with my recently emeritus collaborator and erstwhile colleague, James Holland), which will be published by Oxford UP next year. After eight editions it’s tempting just to update without tweaking and changing too much, but we like to try and keep it fresh as well, so are always looking for new (or even less new) material that will serve that purpose. This time around one of the pieces I came across was a piece in the Guardian by the novelist Ian McEwan (whose work I’ve always admired). Though we didn’t use it in the end, I want to share it here. It is on the rather well-worn trope of legal judgment as literature, but I like the way in which McEwan brings his novelist’s eye to the description:

It was the prose that struck me first. Clean, precise, delicious. Serious, of course, compassionate at points, but lurking within its intelligence was something like humour, or wit, derived perhaps from its godly distance, which in turn reminded me of a novelist’s omniscience. I continued to note the parallels between our professions, for these judgments were like short stories, or novellas; the background to some dispute or dilemma crisply summarised, characters drawn with quick strokes, the story distributed across several points of view and, towards its end, some sympathy extended towards those whom, ultimately, the narrative would not favour….

Here, in my lap, were realistically conceived characters moving through plausible, riveting situations, raising complex ethical questions. If these judgments had been fiction, they would have belonged in the tradition of moral exploration that includes Jane Austen, Leo Tolstoy, George Eliot, Henry James, Joseph Conrad.

I love this description, and while not all judicial authors can be praised for prose that is ‘clean, precise, delicious’ the best undoubtedly can. It’s also probably not a bad reminder either to  us or our students that it is the writing that leaves its impression first, and probably longest. Prose doesn’t have to be turgid and dull just because its ‘legal’ or (even worse!) ‘academic’. For me it was also another prompt to consider what our students lose when we do them the (dis)service of packaging their law for them in ready-to-digest, bite-size, nuggets in lectures and textbooks(!). Those judgments that involve hard moral problems really do allow us to see into the crucible of ethical decision-making in a way that commentary often does not.

It is perhaps no surprise that the primary target of McEwan’s admiration was Sir Alan Ward, the Court of Appeal (England and Wales) judge who retired last year. Sir Alan was always one of my favourite judges for both the clarity of his prose and his ability to wear both his judicial authority and his learning very lightly. I’m pleased to say he gets two honourable mentions in the new edition. The first refers to his most famous and probably most difficult judgment in the conjoined twins case (Re A (Conjoined Twins) [2001] Fam 147). The other? Well fellow Ward devotees may have guessed… I couldn’t let his one-liner about ‘warring bankers’ get away.