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!

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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.