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!

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.

ABA Legal Education Task Force publishes draft report

The American Bar Association’s draft report and recommendations on the Future of Legal Education was published on Friday 20 September. The full text of the report can be accessed here.

In a number of obvious ways this is no LETR report. It is not explicitly research-based (though the ABA has held hearings and invited evidence), it takes up less than 40 pages, and has taken only a year to produce. Nonetheless there are some interesting simlarities.

The report opens with a familiar story. It recognises that the US system of legal education “faces considerable pressure” over costs, student debt, declining application levels and “possibly structural” changes in the number and kinds of jobs available for law graduates. It also prefaces its recommendations with a recognition that the core problems are structural, and not amenable to quick fixes. Rather like the LETR report it too acknowledges the challenge, given the contested terrain of legal education, of presenting recommendations that would have “a reasonable chance of influencing action”, and capable of creating a framework for “continuous adaptation and improvement”.

The main problems identified by the report can be summarised very simply: US law schools are too expensive, too alike and too remote from the needs of practice. The medicine prescribed by the Task Force includes:

  • systematic reform of law school pricing and financing
  • a greater focus on defining and delivering professional competencies, both at law school and subsequently
  • the development and delivery of new systems of training and licensing those with limited practice rights, rather than focusing so much on the production of “professional generalists”
  • Greater support and incentives for innovation and experimentation in the delivery of legal education, eg, by reducing regulatory barriers to experimentation
  • the need for all stakeholders to support “an enterprise or program for the continual assessment of conditions affecting legal education and of the strengths and weaknesses of the then-current structures in legal education, and for fostering continual improvement in the system of legal education”.

The greatest disappointment to many is likely to be that the Task Force has, perhaps not surprisingly, sidestepped the issues of cost and funding, arguing that the time allotted was insufficient to the task. It has thus recommended that a further task force or commission be appointed, with the expertise to pick up this task.

Beyond this, a number of similarities to the LETR approach are quite striking. The Task Force has also focused on general principles, rather than risk getting lost in regulatory detail, and has largely come out against greater prescription. It calls for some re-regulation and de-regulation where necessary or possible, but most of its proposals are non-mandatory and rely on the use of incentives, facilitation and coordination techniques. Beyond that there are three particular common themes I think it is useful to highlight:

  • First, there is the drive to define competencies. The Task Force has possibly gone (even) further than the LETR in saying to law schools, you can build your own curriculum inside the competencies required. But this is accompanied by a very clear indication that law schools need to do much more to re-align the balance in the JD between academic law and what the Task Force calls “focused preparation for the delivery of legal services”. In both England and Wales and the US the devil here will lie in the detail of the competences chosen.
  • Secondly, the Task Force report notes the wide range of initiatives being undertaken in response to the current challenges facing law schools, but also highlights the fragmented and uncoordinated nature of responses, and the absence of “a full understanding of the tools available to effect change, mechanisms for assessment of progress, and a strategy for long-term continuous improvement”. This is also all too familiar (though it may be arguable that the sense of crisis in the US has driven innovation to an extent that we have not (yet) experienced in the UK). What I think is critical here is to recognise that the Task Force and the LETR Report have both highlighted the importance of creating a formal coordination and evaluation mechanism – LETRs Legal Education Council and (virtual) Legal Ed Lab, and the Task Force’s  call to establish a “Center or other framework” to support, assess and evaluate improvements in the legal education system. My personal concern is that this proposal is in danger of being overlooked in the deliberations that have so far followed publication of the LETR Report. If such an outcome is achieved in the US, and not in England and Wales, then a very considerable opportunity will have been lost to UK legal education.
  • Thirdly the Task Force report also acknowledges the need to enhance access to justice for lower income consumers. It therefore proposes that non-lawyers be permitted to perform “limited legal services,” and that bar admission might also be opened up to individuals who have not completed an undergraduate degree and law school. This again has significant echoes of the liberalisation measures proposed by LETR, though it is not clear whether the US report countenances a return to a full apprenticeship model such as is being developed in England and Wales.

Responses to the Task Force’s draft are invited. The report should be finalised in November and presented to the ABA’s policy-setting body, the House of Delegates, early in 2014.

Should legal ethics be taught at the academic stage #2

In response to my previous post, there’s an interesting comment on the Canadian situation by Paul Paton over at Legal Ethics Forum:

“‘Interesting Canadian Development’ Alert — This is a debate that some (including Brent Cotter, Richard Devlin, Alice Woolley and I, amongst others) tried to ensure got attention in Canada. A report of a Task Force of the Federation of Law Societies of Canada (an umbrella group of provincial regulators)on the Canadian common law degree last fall recommended that the Federation “should require applicants seeking entry to bar admission programs to demonstrate that they have had specific instruction in ethics and professionalism, in a stand-alone course dedicated to the subject.” There was fierce resistance from some quarters (including at my old shop north of the border) to being told what courses they had to include. Mercifully other more enlightened places (like Brent’s, Alice’s, Richard’s schools and others) have made a course in legal ethics/professional responsibility mandatory. I’ll be writing more on this in a comparative context but I look forward to the discussion at ILEC. [Even though I’m in the US I chair the Canadian Bar Association’s National Ethics and Professional Issues Committee in 2009-2010 and the issue has had no traction in that venue, sigh].”