LETR read, misread, unread

I’ve been at three LETR-related events the last couple of weeks — the seminar at UCL on Legal Innovation — How Should the Educators Respond,   a SLS/IALS event, The Role of Academics in Legal Education & Training, and a LERN event — After the LETR, what should we be researching and how.  I was speaking at the first, and in the audience for the second two, and attending all three in a personal, rather than a LETR capacity.

The UCL event panel was interesting — present were legal innovators (Christina Blacklaws, Co-op Legal Services, Dana Denis Smith, CEO, Obelisk, entrepreneur in legal process outsourcing, Geoff Wild, Director of Governance & Law, Kent CC Legal Services), and two legal educators — Peter Crisp, dean & CE of BPP Law School, and me.  Richard Moorhead, organising the event, set it up so that the educators would respond to the legal innovators, which was neat.  I liked the future-oriented feel to the session. Sitting on the panel listening to the innovators I was struck, yet again, by the increasing distance between what was happening at the future-leading edges of legal practice and current legal educational processes and ideas.   As we pointed out in the Report (3.68-3.70, 3.72, especially), new forms of business organisation are leading to a re-definition of skills and functions, particularly in client-facing roles.

What Dana and Christina were describing in brief were in effect hugely exciting opportunities for legal educators to be involved in projects that would re-define aspects of legal education.  It was clear that they both thought that conventional legal education needed to change to adapt to new forms of public engagement that were changing aspects of title-, entity-, and activity-based definitions of legal services.  Whether those educational opportunities are actually being grasped in Obelisk and Co-op Legal Services or any other ABS is another matter; but we were all agreed that the need was there.  Questions from the audience (diverse — practitioners, educators)  were sophisticated and acute.  The conversation continued at drinks after;  the panel session really just touched the surface of an issue that will only grow in importance for legal educators.  I was left with the same restless feeling I had at many points during LETR: that around legal education, the air is shifting, there are presentiments of changing weather all around, and we are so unprepared for it.

The second event was rather a contrast.  Where the need for LETR was implicitly understood at the first event, and the report’s three broad directions of regulation-revision, co-design and collaboration were accepted as part of the new landscape of legal education, there seemed to be no such consensus at the second.  Organised by SLS and IALS, it was an event consisting largely of academics talking to academics, and heavens, it was a glum affair.  William Twining, the exception to this, started us off with a brisk plenary that was acute in its historical breadth, and made useful points about aspects of the report’s recommendations.  He pointed out for instance that the Ormrod Committee disbanded itself after its report, out of sheer exhaustion with the ongoing process; and that this left a void in the regulatory field.  These and other historical comments were fascinating contexts to our report.

His comment that LETR’s recommendation of a Council did not match up in breadth of powers to previous such bodies is correct; but it does have to be said that the situation now in the legal education habitus is much more complex and multi-factorial than it ever was before.  We do also emphasise the need for communication between parties, on different levels of engagement.  William’s description of the language and focus of LETR as ‘bureaucratic rationalism’, needing to be counter-balanced by, inter alia, ‘reflective practice’ and ‘legal values and ethics’, though, is simply not the case.  One need only look at our treatment of reflective practice in the report — eg 7.12, where we establish its centrality to CPD — and our exploration of it in the literature review.  Legal values and ethics are central to recommendations 6 & 7, and the Foreword also discusses their place in legal education.  William wound up  by outlining potential action, much of it also discussed by LETR.  For instance —

Internal action to mitigate the pressures on the overloaded undergraduate curriculum by eg add-ons and floating modules; more imaginative use of the calendar year; resisting further external impositions in order to give students more choice  and undergraduate programmes more flexibility [his emphasis].

He also pressed for the issue of collaboration across the sector, outlining

a national institute for legal education and training to replace UKCLE as a cross-sector meeting ground for all interested in LET (reviving LILI conferences) and as a centre for research and development of teaching resources including IT [his emphasis].

He finished by urging the academic legal community ‘led by SLS, ALT, SLSA, CHULS’ to engage in ‘bold initiatives to help further strengthen the quality of legal services provision.’  I couldn’t agree more.

Alas, after his vigorous plenary there was little sign of it happening.  The announcement of radical changes to JASB was received dolefully, with questions about transitional detail — remarkably, no general responses about the effect on law school strategy or education on the wider scale.  We were then divided into small groups to discuss aspects of the LETR report.  In my group I was reliably informed by one participant that there was almost no literature on professionalism in legal education — nothing about our collected references on the subject here or discussion throughout 41 pages of the report.  Thankfully there were creative and imaginative comments from Matthew Weait, Cath Sylvester and Andrew Francis.  Andrew’s point here that ‘[t]he drive to enhance social mobility within the legal profession has to be a shared endeavour of partnership involving a range of different stake-holders’ is obviously one shared by LETR, eg at 6.158 where we argue for a sustained development of a ‘shared space’, a community of educators, regulators, policy-makers and professionals working in provision of legal services, drawing information from other jurisdictions, other professions and other regulators to identify best practices in LSET and its regulation’.  More of shared space in later posts.

But these informed and insightful responses were the exception.  I suppose since I believe, with Harold Bloom, that every reading is a misreading, I can hardly complain if LETR is misread.  But I do object to lazy readings.  And comments from those who scarcely seem to have read the Executive Summary let alone the report.  Or readings that don’t take into account how radical the proposals on regulation can be, not just for legal services education and training but for legal education itself.  At one point someone announced he couldn’t quite make up his mind what the report was saying — and he was a panel member.  The panel session ended a dispiriting 30 minutes early.  There was no debate, not least because the quality of engagement with the report was low.  No one would take up the quietly compelling challenges set out by Jane Ching who was on the panel — that information about legal education is badly wanting, that there is more than one kind of academic award, that there is more than one kind of legal educator, that there is more than one approach to legal educational research.  The subtlety of these statements needed to be spelled out, I guess, so I’ll do it here by quoting my colleague at Notts Law School, Bex Hux Binns, in turn summarising Julian who was speaking at an earlier Westminster Legal Policy Forum event :

If the outcomes-based recommendation in the LETR report (recommendation 1) is endorsed by the regulators, we are going to see a paradigm shift away from the traditional ‘time-served’ model of education and training from the academic stage to a legal services career.

Final event was the LERN event on 13 November at IALS — ‘After LETR, what should we be researching and how?’  Pat Leighton introduced the day, which was structured around a reading of LETR as a research document, and focused on legal research.  She focused on nature of the research methodology and findings in the document, what was learned, identified the extent to which LETR has prompted a new or modified research agenda, and finally introduced the topic of the day, namely the formulation of our research priorities and methodologies for the future.

Pat observed that the major focus of projects to date has been academic legal education through from A-level Law, eg pedagogic issues, experiences of students.  What was missed out in LETR according to her?  Changes in HE, real challenges from changes in delivery of legal services, little from EU and civil law, a de-contextualising of regulation itself, insufficient analysis of the business issues, eg insurance, and history.   Didn’t agree regarding all the above and said so; but generally a very useful and practical analysis of LETR and its approaches.  Pat also mentioned sources of data that legal educators should be considering in our future research, eg:

1. Social Mobility … Commission Mapping occupational destinations of new graduates (Oct 13)
2. HESA Longintudinal Destination of Leavers from HE
3. LSB Consumers’ Value of Regulation: A Quantitative Analysis
4. Consultation from BIS seeking evidence on the Regulation of Social Work Providers.

First up on the panel, Lisa Webley, on global issues and technology.  She began by analysing how to set up a research project, how to do comparative research internationally, eg on de-regulation, Australia/E+W, on civil & common law hybrids, using Canada as an example — useful introductions to these approaches.  According to her, legal informatics will need to be mainstream in legal education quite soon (entirely agree).  Transnational lawyering and qualification processes will also be much more important in the future.

Next up, Hilary Sommerlad.  She talked about her background in history and economics, how that played out, the conceptual frameworks for research, eg the privatisation of higher education, the ‘precariat’, the marketisation of education, especially professional education.  She argued for pulling data into theory of professions and other theory framework. Useful overview of a more conceptual approach to legal education research, and a plea for that, too.  I think we also need to critique those frameworks, though, from our position within legal education.  I’m thinking, eg, of the work of Zimdars, Sullivan & Heath (2009), where the researchers analysed whether or not Bourdieu’s concept of cultural capital helps to explain the link between social background and gaining an offer for study at the University of Oxford. They found that cultural knowledge, rather than participation in the beaux arts, is related to admissions decisions.  This effect is particularly pronounced in arts subjects.  They only partly supported Bourdieu’s postulation of cultural capital as the main differentiator between fractions of the middle class.  For example, measures of cultural capital do not account for the gender gap in admission and only explain a small part of the disadvantage faced by South-Asian applicants (all this from their abstract).  First rate piece of research — I’m sure that Hilary would agree that we need to produce more research like this in legal education which, using empirical field data, critiques the conceptual frameworks we use.

Tony Bradney spoke next (he was also on the SLS panel) .  I’ve never agreed with his position on the law degree — I think that the relationship between undergraduate and professional education is much more complex and sophisticated than he allows for, and that undergraduate legal educators have responsibilities for taking this relationship into account in curriculum design.  At that point I had to leave early for another appointment, so missed the external speakers.  But I was heartened by the way LETR was stimulating people to rethink research.  At one point in the day I made the plea that we make in LETR: we need more evidence, better research, and our research across institutions and sectors should be much better organised and above all collaborative.  We may not be able to set up and sustain something like the Cochrane Collaboration; but we can do a lot more to provide overviews, systematic reviews and research summaries, as well as producing more rigorous empirical and theoretical research on legal education.  More on that when I describe our legal education centre at ANU College of Law.