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:
- 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:
- 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.
- 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.