In the FT back in March, John Gapper wrote an interesting article on why Standard Life offered a whopping £3.8bn for Aberdeen Asset Management.[1]  It wasn’t a merger based on strength on either side (Standard Life acquiring Aberdeen’s niche skills; Aberden accessing Standard Life’s strength in developed markets) but on joint weakness.  That weakness, Gapper argued, is one that the entire investment management industry is currently facing, namely that algorithms are out-performing many active fund managers.  There is a place for niche fund management argued Gapper, but ‘formulas are perfectly good at doing the predictable stuff, and often better’.  And sure enough, soon after Standard Life and Aberdeen completed the negotiations 800 redundancies were announced – a total annual saving for the two Scottish companies of over £200M.  Shareholders voted yesterday for the merger to go ahead.  Given the cost to investors of active-managed funds (largely the salary costs of managers and related staff) as against indexed and exchange-traded funds, and the steady drift of investment to the latter, there was little doubt which way the vote would go.

It’s not only investment management that’s facing such change: every aspect of financial work is under the same relentless pressure.  Indeed pretty much every industry is affected by the digital revolution we’re living through.  A washing machine is now a computer that washes clothes; a car with or without a driver is a computer that takes you places.  Increasingly, houses are becoming computers in which we live.  In late capitalist societies digital shapes employment that’s on offer in the marketplace in ways often invisible to the players involved: the number of jobs, their activities, their burdens and rewards.  Digital shapes work, creates opportunities and huge wealth but devastates lives and careers as well.

Most lawyers now realise this – it’s been slow, but the evidence is there.  Computational law – that corner of the extensive field of legal informatics that deals with the automation of legal analysis and machine learning – is growing apace.  See for example the projects of CodeX at Stanford, the work of scholars such as Daniel Martin Katz, decision-support systems that use computational learning, and engines such as (in no order other than alphabetic) Casetext, Kira, LawGeex, Legal Analytics, RAVN.  These and many other examples point to common analytical tools that apply to both numeric and linguistic domains – the unbundling of processes and tasks, automation and decision-making.

And law schools and legal education?  Ah, we’re different, you see, we deal in legal analysis and justice, not the arithmetic of the market; in legal reasoning not financial results or the data-driven models of legal practice.  So we like to think.  Meanwhile our students pass through cultures of education and curriculum practices & content that in many quarters have changed only superficially since the 1950s, and graduate through assessment regimes many of which wouldn’t look out of place in the 1870s.  Then they face the chaos and kettledrums, the professional process of doing and the undoing of much of what they’ve learned from us in law school, no matter what profession they enter; and they learn the bitter lessons of marketplace ethics and economics, about which we taught them so little.  The common analytical tools I mention above, for instance  – where do they appear in a curriculum?  And yet over 40 years ago educationalists such as Lee Shulman were already applying such research to educational theory and practice.[2]  What passes for digital literacy and its processes in our curricula?  Disintermediation, as I argued recently, is a process that applies not just to industries but to legal knowledge itself in the last millennium of legal scholarship, yet it is a process of doing and undoing that we scarcely discuss with our students.  As I said in Transforming Legal Education, we’ve yet to attain in our theory and practice in legal education what Ernst Cassirer called ‘mature constructivism’, namely the self-reflexive view of the development of technology within the history and culture of the domain.[3]

Just why that’s so is too complex to go into here; but the end result is the same: we set up wasteful processes of doing and undoing, the ceaseless antinomies whereby students are first socialized into a view of law and technology that requires to be unpicked in lives and social practices beyond law school.  Surely we can imagine better models than this?  Katz points to a useful thought experiment – the MIT School of Law[4]  A decade ago in Transforming Legal Education I described a future University of Scotland Law School where students lived and learned in AR, where they learned how to negotiate the process of professional relationships, and learned justice for a global world through transactions, assisted throughout by avatars.  In such environments doing and undoing is not a process of unpicking knowledge but a process of becoming through experiential forming and reforming in saturated technological environments.

We need such new models more than ever.  In his FT article Gapper references Michael Lewis’s book, The Undoing Project, which describes the work of the psychologists Daniel Kahneman and Amos Tversky, and in particular their studies of what they called ‘low validity environments’ – domains of human activity prone to uncertainty and unpredictability’, just the fields one might think where machines might have difficulty and where human judgment and intuition would predominate.  Not so.  In one study the prediction of cancerous tissue by radiologists from the evidence in x-rays, for instance, was outdone by simple algorithms.  Does this mean that radiologists can be replaced by robots?  That’s the wrong conclusion: some professional tasks can be performed by algorithm more successfully than by humans in all professions, but not all.  Too often we stop at that point to observe the rise of the machine – ‘[Kahneman and Tversky] showed clearly half a century ago that would happen, and now it has’, as Gapper says of the Standard Life merger.

The dominance of the robot algorithm is not the only conclusion we can reach of these types of study, though.  Expertise is a highly complex collection of skills and knowledge, and even in their own fields experts such as radiologists are more expert in some practices and domains than in others, sometimes just by the nature of what they do and how often they do it.  The reasons why radiologists’ judgments were wrong were complex, and not least in that complexity was the nature of their profession and the extent to which they received feedback upon their decisions.  Kahneman puts it well:

Among medical specialties, anesthesiologists benefit from good feedback, because the effects of their actions are likely to be quickly evident.  In contrast, radiologists obtain little information about the accuracy of the diagnoses they make and about the pathologies they fail to detect.  Anesthesiologists are therefore in a better position to develop useful intuitive skills.  If an anesthesiologist says, “I have a feeling something is wrong,” everyone in the operating room should be prepared for an emergency.[5]

So in legal education, let’s bury the tired notion that we’re teaching students how to think like lawyers and ask instead how are we helping them to learn how to decide and judge, how are we helping them to shape and live their lives?  And does our education put them in the position of being radiologists or anaesthetists?  There lies our expertise.

Amongst many themes, that was one that was raised consistently in the papers presented at the Centre for Legal Education conference, and in the many interesting discussions that arose from them.  What was memorable about the event, apart from the lovely sense of collegiality, was the collective feeling that we were engage in exploring educational innovations that challenged us to think hard about our educational practices, to rethink them, to do and undo in the most creative sense what we did with our students.  The liveblog postings that Pamela and I put up here and on the CLE blog catch just some of the ideas and practices we experienced.  My thanks to the centre director Jane Ching and all her team for a great conference.  If you happened to miss it, see you there next time…

  1. [1]John Gapper, Technology outsmarts the human investor’, Financial Times, 9 March 2017, p.11
  2. [2]See eg Shulman, L.S., Elstein, A.S. (1975).  Studies of problem solving, judgment, and decision making: implications for educational research.  Review of Research in Education, 3, 1, 3-42.
  3. [3]Cassirer, E. (1946).  Language and Myth.  Translated by Susanne K. Langer, New York, Dover Publications, Inc.
  4. [4]Katz, D.M. (2014).  The MIT School of Law?  A perspective on legal education in the 21st century.  University of Illinois Law Review, 5, 101-42.
  5. [5]Kahneman, D. (2011).  Thinking, Fast and Slow.  London, Allen Lane, 242.

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CLE conference, day 2, session 6

by Paul Maharg on 17/06/2017

Emily Allbon and Morris Pamplin, from City Law School now, on ‘Lagton Legal: Creating a transmedia story world for the LLB Legal Practice’.  This LLB is a fully-online supported distance learning programme, developed with CILEx for legal executives and others.  The students are returners to education, working while studying, with family and other commitments.  How to engage them and keep them enthused?

Emily’s prior projects involved building communities in Lawbore and LearnMore.  She now is working on Transmedia, with a screen writer – a new media-rich project.  Emily pointed out the links to SIMPLE and Ardcalloch (thanks for the name-check!), and other literature.  Morris described CityScape, and the fictional town of Millcaster, used on the undergraduate Business & Management programmes.  They demonstrated Lagton Legal and asked us to think about the genre used, legal issues involved and the effect of the medium and genre, issuing popcorn for the experience…  Nice touch.

Why transmedia and not multimedia?  Because the narratives are carried across media.  Emily gave us a sense of the problems in developing the resources, but nevertheless it seemed like a remarkable project, and one with a huge future.  I blogged about a prior presentation on the topic at BILETA.

Finally, Nigel Hudson on PropertyMon Go!: Gotta catch them all!!’  Students, he said, find land law (his subject) archaic, boring and irrelevant.  Solutions?  He argued for emphasising the tactile nature of real property, illustrating that it’s importance to society and commerce, and making it relevant to applying the law to real situations relevant to students.  PropertyMon Go is an augmented reality app, as Pokemon Go.  Users use the app to ‘discover’ Auras.  Gamification was a key element – gold badge for the 18 propertymon without the map, silver for getting the propertymon with the map, bronze for getting them once details are released.  Nigel used digital badges by using Credly, a free app.

Nigel then showed us how to create augmented reality using the Aurasma app on the App Store.  Dead easy.  Great app.  He finished with do’s and don’ts. Further suggested uses included interactive document (eg voice annotated contracts), interactive court room (eg guided court tour) interactive case studies (eg site inspections, forensic crime scene investigations).

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CLE conference, day 2, session 3

by Paul Maharg on 17/06/2017

Presentations by Matthew Homewood, NLS, and Neetu Chetty (Varsity College, South Africa).  Matthew up first, on ‘Extending learning spaces using social media’.  He’s been collecting prizes by the armful recently, and he compared the situation re digital tech and legal education to the situation with initial teacher resistance to calculators in school classrooms.  Interesting.  He took the example of a large undergrad module in EU law, lots of student queries, how could he respond?  He considered Twitter.  A 30 min interactive Twitter session, ask me anything EU law related, #EUlawrocks hashtag.  Secure, familiar platform, extensively used and free, that gave individual and cohort feedback.  It gave Matthew opportunities to identify trends, too.  Worked really well.  Limitations of 140 characters?  He didn’t think there was an issue, nor was there a ‘floodgates’ issue re the tweets.  Intense learning session with students, who enjoyed the session.

Second approach – using technology for an EU study group.  Matthew used Yammer, MS social media platform, used as a space for students to interact re the module, with Matthew sitting in the background, as it were.  It worked well with a student champion.  Matthew tried it without a student champion and found that it didn’t work nearly as well. 504 interactions, 131 likes.  Good session, showing what can be done with free software.

I had to leave the next paper quickly, to prepare for my session, didn’t quite catch it all, so won’t try to liveblog it.

 

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CLE conference, day two, session 3

June 17, 2017

Third plenary, Craig Newbery-Jones, Plymouth University Law School, on ‘The courage to walk into the darkness, strength to return to the light.  Technological experimentation within legal education and legal practice’.  I’ve published Craig’s work in the past – he has a highly sophisticated view of digital technologies and their uses in legal education, well worth […]

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CLE conference, day 2, session 1

June 17, 2017

First up today, Lisa Davies, on ‘Law PORT: an online training initiative to improve the legal information literacy skills of PhD researchers across the UK.’  Lisa is a law librarian from IALS.  She introduced what IALS Library does, including the roadshows.  To expand reach, their latest initiative is Law PORT – postgrad online research training. […]

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Keynote 2: Technology makes you a better lawyer, not a techie

June 16, 2017

Second keynote, this time from Ludwig Bull, a student from Cambridge (when did you last attend a legal ed conference, or indeed any conference, where a student presents…?).  Avid readers of my blog will remember that I’ve already posted on his achievements.  He started his keynote with a 3-D model of citations of Donoghue vs […]

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CLE Conference, session 2

June 16, 2017

The first parallel session and I’m blogging Janice Denoncourt from NLS on ‘Interdisciplinary legal education: embedding IP law in Business programmes’.  Janice has already been published on the subject but she adapts her interdisciplinary approaches very neatly for legal education. Janice is talking about IP law and legal education, and argues that law schools need […]

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Centre for Legal Education (CLE) Conference, Nottingham Law School, Notts Trent University, session 1

June 16, 2017

At the kind behest of Pamela Henderson, my colleague at NLS, I’ve joined the CLE blog as guest speaker and will be liveblogging the conference at that blog and also here.  I’m a part-time professor at NLS, and a member of the CLE, which does fine research work in legal education.  The conference has speakers […]

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Simulated client, final session – ahead of whose curve?

June 6, 2017

So where do we want to take the SCI from here?  That was a key question for us at the final session of the day.  It was observed that however successful the method might be demonstrated to be, there will be some staff and some students who simply will not want to engage.  That’s understandable […]

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Session 7: SCs and professional development for lawyers

June 3, 2017

My computer was in use for the earlier sessions, so couldn’t liveblog those sessions.  But here’s the computer now, and here’s Rory O’Boyle and Freda Grealy discussing what they do with SCs in the Law Society of Ireland, in the professional training of practitioners.  I trained their clients back in 2012, and they’ve gone on […]

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