LETR on regulatory relationships

by Paul Maharg on 22/09/2014

I was revisiting LETR on regulatory relationship for a paper I was giving here at Denver U Sturm College of Law.  A year or so on, how is it looking?  The responses of the main regulators were reasonably predictable though the future consequences of their actions are difficult to foresee.  But what of the report itself?  Time weathers a report like LETR, as it has done to Ormrod back in the early 1970s.  The eddies, ebb and flow of events, regulation, comment, people shape and reshape how we read and understand a report, just as it does any text.  For the Ormrod Committee in the late sixties, the Robbins Report was the recent landmark in the past.  The Committee predicted further expansion, as did Robbins; but neither could have foreseen the massification of HE that has taken place.  Reading Robbins and Ormrod on the other side of that process (which is still ongoing of course), together with enormous and complex shifts in teaching, learning, assessment, regulatory, quality & risk practices, the language and stance of both Ormrod and Robbins Reports is clear, and the Reports are sure of their principles and how those will be enacted in society .  It’s probably not going too far to say that the language and purpose of the Browne Report would have puzzled and dismayed the authors of both Robbins and Ormrod, had it been transported in time back to them.  How has it come to this, they might have wondered.

LETR was a different sort of report: narrower and deeper in remit, but because of the range of consulting required and the scholarly literature that has been produced since Ormrod, much more extensive in reference.  One participant at the WG Hart Workshop commented that there was little ‘discussion of legal education’.  Actually, the Report is full of it; but discussion is referenced around the issues we were asked to address.  Another commented that issues of philosophy of education and ‘philosophical questions’ were missing.  I’m with Dewey: it’s not possible to discuss education without getting drawn into philosophical issues (and see a posting by Brian Leiter on the same issue).  The same is true of educational practice.  The ways you communicate with students, the way chairs are arranged in the room, the fact of there being a room, inside a building inside an institution inside staff cultures, student cultures, professional cultures, broader social cultures — all these layers are bound together, laminated, and much of our task as educators is to unpick the quotidian assumptions that bind them and ask – does it really need to be like that?  can we do things differently and better?

Which is what LETR tries to do, within the strict constraints of its remit, and by referencing the relevant debates.  See for example the sections in the Report on standards, at 6.142-45, which call upon the extensive lit review, chapter 2, inter alia.  Liberal law school model?  Not in our core remit (see 1.11), but it enters the discussion where required: see p.30, fn29; and ss.4.57-59; 5.45; 5.53.

But there are two deeper issues here.  First, the way we interpret the phrase ‘legal education’.  Much of what legal educators write about has to do with classroom practices, pedagogy, and especially content.  Yet there are whole areas of legal education that we often don’t address and that are actually crucial to the formation of pedagogy and educational practices.   Take for instance the identity of law teachers — who are they, what do they do, what do they think about what they do?  Before Fiona Cownie’s study there wasn’t much out there on the subject that was theoretically developed (there were of course periodic surveys of law teachers and law teaching in England and Wales, and the like).  And after her work we can see the gaps around her study — there is almost no discussion on LPC/BTPC staff, none on those engaged in legal education in for-profits, law firms, law centres and other institutions.  This isn’t a criticism of Fiona’s work, which is a fine and well-established sociolegal study, and sets university law teachers within the broader context of the research on HE education and educator identity; and which always set out to be a comment on university law staff at specific times and places.  Rather, it’s a comment on how our exploration of part of the field helps us to appreciate how much there still remains to do, and where the absences are.

One of these absences on the map is regulation and regulatory relationship in legal education.  Some have written on this; but I think we’d have to agree that the literature and the debates remain undeveloped by legal educators generally; and yet in the last few decades regulatory presence has increased substantially for all of us. This is extraordinary, really: as if legal educators feel somehow that regulation is uninteresting at best, perhaps unintellectual at worst.  In the LETR literature review we were asked to research the applicability of conduct of business regulation (COBR) to legal education.  At first glance there was almost no literature on the general subject, and what there was tended to be pulled into the gravitational field of larger and more established jurisprudential debates, eg Brownsword on regulatory legitimacy, classifications of regulatory modes (Scott & Murray), regulatory architecture (Lessig).  On legal education & COBR, and the underlying issue of risk, virtually nothing.  We argued for a broad view of the subject of risk and regulatory relationship in education, since risk and its concomitant, trust, is a prominent factor in many (though not all) regulatory relationships.  From the literature review:

the framework of analysis is often narrowly restricted to either legal profession practice or that of cognate professions. But as Mary Douglas has pointed out with regard to risk and justice, it is ‘currently impossible to make sense of the concept of risk in the compartmentalised, individualistic frame of analysis normally employed’ (Douglas, 1992, p. x), and the same could be said of the concept of COBR.  In this section of the literature review, therefore, we shall range quite widely in the literature to present a view of COBR within the field of regulation, and explore possible future relationships between regulators and those involved in legal education in England and Wales.

The questions to ask of LETR, therefore, shouldn’t focus on content but whether, within the constraining terms of its remit, it contributes to our understanding of regulation and regulatory relationship within the field, now and in the near future.

How might that relationship with regulators develop?  How might we want it to develop?  We can see examples in other countries, in other areas of education.  Finnish school education, for example, is widely regarded as outstanding, and not just because of its place in PISA league tables (themselves much debated).  How have Finnish school educators and regulators managed the relationship?  According to Sahlberg there were three phases.[1]  From the 1950s – 1980s regulators worked closely with school practitioners, academics and civil society bodies to develop social and educational values — eg the Finnish Primary School Teachers Association published a progressive programme of reform that focused on enhancing equality and social justice in Finnish society.[2]  This was upheld by regulators, working closely with teachers, who refused to adopt ‘market-driven education policy changes’, and searched internationally especially in the USA, UK and Canada for sound models of ed psych, (eg David Berliner), teacher education (Linda Darling-Hammond) and educational change (Andy Hargreaves & Mike Fullan) that might help develop the basic infrastructure of school curricula.[3]  In the process, regulators avoided market-based competition (eg between schools, so divisive in England and the USA), and high-stakes testing policies.[4]  In the second phase (1990s), regulators encouraged schools to improve through networking and self-regulation, focusing on research-based teacher education, and in the third, (2000s), efficiency of structures and administration, including sustainable leadership and change.

We have a lot to learn from this approach, not just in school education but in HE too.  Contrast Finnish regulation and legislative instruments to UK governmental responses to progressive education, particularly the notorious 1970s Conservative Black Papers.[5]  Nor is Finland unique: the same conditions of success have been replicated elsewhere, eg in New Zealand.

And of course compare this to legal education regulation.  There are two key issues: first, what might a relationship with regulators, based on Finnish approaches to that relationship, actually look like?  We explored some of those ideas in chapter 3 of the literature review, and they led to Recommendation 25 in the Report, amongst others.  That Recommendation doesn’t just apply to England and Wales: it could apply to all five jurisdictions in those isles.  And I would argue that it has resonance for most accrediting and regulatory bodies including (since I’m writing from the US) the ABA and Bar Examination bodies.

The second issue is the field of legal education research itself.  There are huge gaps in it, we’re not really a community of practice even within the jurisdictions of England & Wales, let alone the other jurisdictions of those isles, or globally, for that matter.  A research community needs a sense of historical awareness and continuity; a sense of contiguous comparison with other educational fields, eg medical education; a mapped awareness of what has been discussed and to what depth, what needs further explored, and the new fields that are emerging.  It should look to order and archive its knowledge in a scholarly sense, using tools such as meta-reviews and systematic summaries (see http://paulmaharg.com/slides for some slides on this, presented recently at an HEA event) to raise awareness within the community and communicate with others outside it.

It’s doubtful if this organisation is taking place at present anywhere in the Common Law world of legal education.  There was a nascent community forming around UKCLE, which had started the work of mapping scholarship in the field — see the taxonomy that was created for the extensive resources stored on the archived and now vanished website.  But we need to build on this.  Recommendation 25 of LETR was designed to help in part with that activity, as an invitation to regulators to rethink the role not just of data in understanding what legal education is about, but of theory and practice too, and the part that we can all play in doing that.  Self-determination theory, after all, states that three conditions are necessary: autonomy, relatedness, connectedness.  One could argue that this applies to regulatory bodies as much as to students — or nation states…

  1. [1]Sahlberg, P. (2011).  Finnish Lessons.  What Can the World Learn from Educational Change in Finland?  Teachers College, Columbia University, New York & London, chapter 1
  2. [2]Sahlberg, p.20.
  3. [3]Sahlberg, p.35
  4. [4]For a critique of high-stakes testing in English education, see the Third Report of the Select Committee on Children, Schools and Families, s.4  See also West, A. (2010).  High stakes testing, accountability, incentives and consequences in English schools.  Policy and Politics, 38, 1, 23-39.  Under its devolutionary powers over education policy the Welsh Assembly abolished national testing.   West compares Scotland (the Scottish system was always separate and different, under the 1707 Act of Union) & England in this regard (and there’s a similar comparison of devolved HE funding systems and their effects in the LETR literature review, chapter 9 @ http://letr.org.uk/wp-content/uploads/LR-chapter-9.pdf):

    It is interesting to note the findings of a comparative study of primary school testing in England and Scotland (Wiggins and Tymms, 2002). In both countries the assessments used are similar but in England they are high stakes and in Scotland they are not (see later section on high stakes testing).The researchers found fewer dysfunctional effects arising from the use of the tests in Scotland and more evidence in England of teachers concentrating on improving the performance of borderline pupils. (West 2010, 30)

  5. [5]Highly conservative educational policy documents, that set out to abolish much of what progressive education had achieved in the previous two decades.  Prof Alan Dyson’s comment to the frankly baffling questions of the Conservative MP Nadine Dorries, are interesting on the subject (Minutes of Evidence, Select Committee on Education and Skills, 2006):

    There has also been a move that you could see starting with the Black papers. It went on through Callaghan’s Ruskin College speech, the Education Reform Act and all the things that have happened since 1997. I think they are in a fairly strong tradition of their own which says that we are not into welfare as we used to understand it. We are not into what Callaghan at one point called the “flowering of the personality”. I do not see much of that these days in educational discourse. However, we are into equipping young people so that they can take their place in a highly competitive labour market with very high levels of skills’.

    Or contrast the nuanced conceptual (and frankly inspirational) stance of Robbins with the key memo prepared for Thatcher in 1983 by the Central Policy Review staff of the Cabinet Office, ‘Responsiveness in HE to Market Forces and Employment Needs’ — the title says it all.

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