CLEA, day 2 session 1

by Paul Maharg on 14/04/2017

Well, this is the longest live blogging session ever — conference is well finished, but I thought that I’d get these impressions together to complete my views of papers at the conference.

First up, Anne Wesemann, The Open University, on ‘The significance of EU law for the future commonwealth lawyer’.  Anne started with an exploration of constitutional principles, eg parliamentary sovereignty v royal prerogative, devolution vs revolution (and Brexit); re-definition and re-design (eg UK and the world vs UK in the world); from Europe into the World (does this involve being a gatekeeper or being a gate?  What about mobility?); the economic need, and the global challenges.  Good quick summary of the general issues.  I think I’d have liked an example or two.  Eg the intriguing position of the Republic of Ireland, just across the Irish Sea from a nation (Wales) that voted to leave (so, as an aside, what about trade to Irish vs Welsh ports?) and one of the most committed EU members — what’s their position on Brexit vis-a-vis establishment rules, Morganbesser, etc?  on English law students and lawyers?  Nevertheless, Anne raised quite profound issues not just for EU legal education, but for international legal education.

Next up Bobette Wolski, Bond University, on ‘Teaching for diversity in practice — limitation of the rules of conduct’.  She noted that legal practitioners are governed by a single generic code of professional conduct.  But she queried whether the ‘one code fits all’ is satisfactory given the increasingly diverse practices of practitioners, especially in non-adversarial contexts eg mediation.   So means of influencing lawyers in practice?  Well, education, rules of conduct, other regulatory instruments.  Egs of the latter, on good faith (acting in self-interest is not inconsistent with good faith; listening and being prepared to consider concessions, etc — but how can these be objectively assessed, she asked?).  She argued for deconstruction of practices such as ADR into skills clusters, ethics and values, and for those to be the subject of education, not least to counter egocentric bias (eg I am an ethical practitioner, I am a better-than-average driver, I’ll live longer than the average for my gender, age, class, etc).

Next, Michele Leering from Queen’s U, Ontario, Canada, on ‘Increasing the capacity for innovation in future legal professionals: reflective practice and action research as enablers of change’.  Canadian imperatives for change in educational theory and practice include the Carnegie Report, a number of reports, eg Canadian Bar Assoc report, Access to Civil & Family Justice six principles.  She noted the roadmap for change – intervention points for legal help, a new paradigm (based on Hazel Genn’s ground-breaking research), Equal Justice report (45% of population experience one justiciable problem every 3 years, and the poor and vulnerable are particularly prone, problems multiply, trigger and escalate, etc).  She listed the impressive publications in the Australian scene, and she turned to reflective learning, her PhD topic.  Which she pointed out, is not what it was once characterised to her, as ‘hippyshit’ — far from it, she is working on conceptual models for reflective learning, moving from reflective learning to reflective practice & inquiry, to reflective all-life professionalism. Through this, she argues, one can create capacity for justice system innovation (not least in that reflective learning can be an antidote to over-learning).  She argued that we need to take into account what other disciplines and professions do as regards reflection; and noted that the disciplines and principles of a learning organisation are key; and improving the quality of dialogue.  Great paper, ambitious approach, wonderful vivid slides.

Finally Jackie Weinberg, Clinical Supervisor Monash U Clinical Program, doing a PhD exploring ADR in clinical legal education, on ‘Keeping up with change: no alternative to teaching ADR in clinic’.  She noted legal practice is changing, citing inter alia Macfarlane and Susskind, usual suspects; and that legal education must change as a result — one of many points on the same subject we made in LETR.  ADR has become part of curricula in law schools, taught as an elective to core courses, and there are recently-released TLOs on ADR.  She noted the research being done in the UK and elsewhere on how to embed ADR within the curriculum generally.  Turning to the clinical legal education programmes, where students assume the role of lawyer, she noted the interconnectedness of theory and practice, and the connectedness between the teaching and practice of ADR in clinical context.  There is a need to explore whether clinical legal education is keeping up with changes in legal practice and legal education.  How to embed ADR in clinics?  In the USA there are schools that have developed medication and arbitration clinics and some law schools offer street law programmes.  She’s not arguing for students to be qualified mediators, but to be much better informed about the various approaches being used in practice.  Sound points.  I like the Deweyan and Realist approach to discovering what exactly is done in practice in ADR, and thinking about how that can be represented in educational contexts, and how we can help students to understand and practise these approaches.


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