Implementing the LETR

I was sorry to miss the latest Westminster Legal Policy Forum (WLPF) event in London on 5 November, but unfortunately I was otherwise occupied in the southern hemisphere. The event was timely, given that the SRA has recently published its consultation on its draft competences and the BSB have also just given us some further detail of their training strategy (though still not a lot – HT here to Steven Vaughan’s recent guest blog on Richard Moorhead’s Lawyer Watch).

The WLPF summarised the event as follows:

Sessions brought together key stakeholders working across the current legal education and training framework – including colleges, universities, careers advisory services, vocational training providers and regulators – alongside law firms, chambers and wider legal employers. Delegates had particular opportunity to consider the prospects for developing new qualification pathways and access routes to legal professions, as well as possible changes to competency frameworks and Continuing Professional Development. Sessions also focused on current proposals to streamline regulatory involvement in education and training processes, and the challenges ahead for a revised framework in supporting both innovation and standards.

The work of the LETR research team is, of course, long-finished, but it was good to see that my colleague on the team Professor Avrom Sherr was invited to open the event and did so, in his own words, by going provocatively “off message”, not least on the challenge to the representative bodies to maintain their relevance after the Legal Services Act; on the tendency of the LETR to be about “regulation, regulation, regulation” rather than “education, education, education”, and on the potential boringness of the SRA’s competence statement. This all bodes rather well for our joint Upjohn Lecture in January 2015!

I have storified all the tweets I could track from the WLPF event here (in reverse chronology):

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‘Just Encounters’: The Minutes of Evidence Project

I spent a fascinating day at the State Library of Victoria on friday hearing about the ARC-funded ‘Minutes of Evidence’ (MoE) Project.The MoE website describes the project in these terms:

It is a unique collaboration between researchers, education experts, performance artists and community and government agencies that seeks to promote greater awareness of the effects of settler colonialism and a more open consideration of how to live together justly in the future. Through a bold, multi-disciplinary approach that brings together research, education and performance, the Minutes of Evidence project highlights the local and broader significance of the 1881 Parliamentary Coranderrk Inquiry by examining how notions of justice have been formulated, invoked and confronted over time and space, and how the enduring legacies of past injustices continue into the present – despite official responses designed to redress them – so as to foster new ways of thinking about structural justice in the present and future. 

I’d heard about the project whilst still in the UK, but this was my first opportunity to properly engage with it. The event was a day conference called ‘Just Encounters: Bringing Together Education, Arts and Research’ which showcased the work the project has been doing over the last four years to reconstruct the formal record of the Coranderrk Inquiry – the Minutes of Evidence of the project title – into a work of “verbatim theatre”, to develop a set of teaching resources on Coranderrk for teachers of history and civics in schools, and to use it as a vehicle to reflect on and engage with issues of ‘structural justice’. Structural justice, it should be said, can be seen as a sub-set of social justice, focussed in this context on redressing the historical and structural harms caused by settler colonialism.

The Coranderrk Inquiry itself was an extraordinary event for its time. Coranderrk was the name given in the 1860s to one of the most liberal and successful of the Aboriginal reserves established in the colony to receive surviving members of the Aboriginal clans that had been displaced by colonial expansion and settlement. In 1874 the sympathetic (European) manager of Coranderrk, John Green, was removed for his opposition to a plan by the so-called Board for the Protection of Aborigines to remove the Aboriginal population and release the 4000+ acres of the station for use by white settler farmers. Under the leadership of their headmen, William Barak and Thomas Bamfield (Birdarak), the Coranderrk residents mobilised into a powerful political protest movement over a period of several years. By adopting the techniques of white political (written) discourse to bring attention to their campaign for self-determination, they forced the state to take notice and set-up a Parliamentary Commission to inquire into their complaints and determine the future of the station. Before the Commissioners, the Coranderrk families succeeded in having the new manager dismissed and, ultimately, in getting Coranderrk formally recognised as a permanent reserve. Their victory was, however, shortlived, as the Victorian government responded by passing the apartheid ‘Half-Caste Act’ of 1886, which forced younger mixed-race men and women off of the reserves and (nominally) into the white population, breaking up families and forcing Coranderrk into a process of slow decline, finally closing in 1924.

The event on Friday included a staged reading of extracts from the verbatim play Coranderrk: We Will Show the Country, written by Giordano Nanni (of Melbourne Uni) and Yorta Yorta/Kurnai playwright, Andrea James, and produced by La Mama Theatre. It was extraordinarly powerful. If anything the device of verbatim theatre, and the knowledge that you were hearing the testimony of witnesses in the words spoken 130 odd years ago added to the poigniancy, and reminded me powerfully of some of the ideas and effects explored in Edinburgh as part of the Beyond Text in Legal Education project (see my earlier post here; though verbatim theatre was not an approach we considered in that context, it can clearly be used, like techniques such as theatre of the oppressed, to foster engagement with, not just awareness of, enduring injustice). Moreover, having coincidentally spent part of last week exploring the Mabo case with my legal theory students, I was doubly confronted after Coranderrk with the historical and contemporary reality of structural injustices on which a one-time colonial state like Australia was and continues to be built. The script has been published as a book by the Aboriginal studies Press (Canberra, 2013). Get it if you can.      

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 Raymond 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.