BILETA 2017 final thoughts: the redress of legal education

by Paul Maharg on 25/04/2017

It was a fine conference, well organised by Anabela Susana Sousa Goncalves and her team at the Universidade do Minho.  I love Portugal.  I was brought up a Catholic, so it seemed perfectly natural to me to put a statue of St Francis holding the infant Jesus above the gantry in the hotel bar – a form of piety embedded in everyday life, like the roadside shrines to the Virgin Mary in the starkly beautiful landscapes of South Uist.  Like Scotland it’s another small European nation with its own distinct cultures, and mad about football – at dinner in the wee restaurant beside the hotel I caught the second half of a lacklustre Barca v Juve match on the TV, and though I don’t have a word of Portuguese it was clear there was extended and acerbic comment on the quality of play from locals at a nearby table.

This year at BILETA as well as a strong stream on cybercrime there lots of papers on internet governance and privacy, of one sort or another, eg online hate comms, etc.  We’ll be publishing a selection in the EJLT.  As always, I followed the education & technology stream.  As always, I’m struck by discrepancies between the substantive streams and their emphasis on governance, and the relative lack of interest in that in legal education generally, but especially in the field of education and new technologies.  Actually, it’s crucial to our work, and I’ll explore that below the fold.

It was brought home to me while I listened to the fine third paper in the stream that I was presenting in – ‘Mind the gap!  Law schools’ curriculum and the mystery of technical rules’, by Kees Stuurman.  I mentally missed the first couple of minutes of Kees’ paper, still zooming out from my own and the questions afterwards, where I’d been talking about the sim learning project I’m involved with (see abstract in last post).  Kees was talking about how standardisation is a key element of the production of almost any consumer good we buy, but it’s almost entirely absent from the curriculum.  In one respect he’s not quite right – the elements of a typical consumer contract course surely often analyse aspects of standardisation that consumers and/or businesses accept as part of the deal.  But in other respects he’s entirely right.  There’s very little on standardisation as both an object of regulation as well as a regulatory mechanism, and Kees argued – rightly in my view – that there should be a lot more – public procurement, corporate responsibility, fundamental rights issues, eg privacy.  Moreover he went further, and explored fundamental questions such as to what extent, as he says in his abstract,

standards/standardisation is subject to judicial review and democratic control and whether constitutional rights can be fully exerted when standards are being used as a regulatory tool […].  The issues relating to the regulatory use of technical standards are closely linked to those identified in the ‘code-as-code’ debate initiated by Reidenberg, Lessig and others in the late 1990s.

Mention of regulation and standards, having just delivered a paper on legal education, drew me into applying his argument to legal education.  After all, legal education globally is more and more the subject of regulatory control, not to say regulatory intrusion. There were three issues that came to mind. First, and along the lines of his basic argument, the regulation of legal education is hardly ever visible within the legal curriculum.  The nearest we get to it is in courses on professional regulation or professional ethics.  But these are often optional courses, or else embedded professional educational programmes, where the focus is on the profession and its regulation, not legal education.

Just why it hasn’t been visible, historically, in the curriculum would make for an interesting article.  There are other reasons why the subject isn’t discussed now, though.  In an era of considerable oversight by regulators and institutions of classroom practices and student experiences, the subject has the potential to be quite contentious for staff and students because it leads to discussion about the forms of education students undergo, with the inevitable questions – why this way and not that for us, why this subject and not that at this law school.  I’d argue that such questions are surely liberating for students to ask, and for staff to consider and answer, and the resulting dialogue is more helpful than the vanilla questionnaires including the dismal NSS we’re required by our universities to fill out, treating our students as customers at arm’s length in that respect.  How far are we from the situation I outlined in an article I wrote a couple of years back for an excellent student journal at ANU, Demos, where I described how in the late eleventh century it was students, not scholars, who formed the original universitas.  Vigour, energy, vision, responsibility, ethics marked their actions:

Over the next century they argued for their rights with Bologna city; they set up collective bargaining and regulatory structures by which they could exist as a corporation.  They were the universitas, within the city, and with rights to travel freely to and fro.  They hired and fired expert scholars and teachers (who took the hint and formed their own organisation); they organised themselves into self-sustaining groups called nationes, supported each other financially and disciplined themselves and their course structures, resources, assessments.[1]  As historians point out, they developed sophisticated systems to protect themselves from sharp practices – for example limiting booksellers’ profits on second-hand manuscripts.[2]  The result was a respublica of learning.

What I say in the next paragraph actually brings us around to Kees’s issues, of regulation, Lessig and code:

Compare that to the situation today, with the Digital Rights Management contracts of corporate publishers who put paywalls around knowledge, and who charge our higher education institutions huge sums to access the knowledge created by those very institutions’ scholars.  Or with the paywalls erected around higher education by successive governments in England, Australia and elsewhere.[3]  Both forms of paywalls are fundamentally anti-democratic.  As numerous commentators have pointed out, the anxiety created by student debt actually inhibits education, social mobility, creates further social stratification, reduces creativity and does nothing to challenge current inequities in the market for positional goods such as higher education.[4]

My proposal, then, is that regulators should make regulatory design and control of legal education part of the curriculum, and ask us to design such courses, and discuss them with our students.  They should take the feedback on issues such as DRM, the dire effects that corporate publishers have on our libraries, the insidious corporatization of the university, and stand with us in resisting them.  All the issues above and many more associated with educational design are important to any democratic society.

But (my second point) it also goes deeper, and Kees’s second, more fundamental point is worth exploring in the context of legal education. His phrase ‘code-as-code’ refers of course to Lessig’s view that computer code is a form of legal code – internet regulation as a form of architecture.  In the Legal Education and Training Review (LETR) Report we took this further, arguing that if this was a form of regulation appropriate for legal education then – drawing from the literature on the regulation of urban traffic – it needed an approach beyond regulation as architecture.  At a meta-level it needed the design of new regulatory space, a ‘shared space’ where policy-makers, regulators, HE institutions, education providers, students and all other stakeholders could converge and work out the best forms of regulation required for legal education, academic undergraduate and postgraduate and postgraduate professional, and indeed lifelong professional education.  Hence Recommendation 25 in our Report:

A body, the ‘Legal Education Council’, should be established to provide a forum for the coordination of the continuing review of LSET and to advise the approved regulators on LSET regulation and effective practice. The Council should also oversee a collaborative hub of legal information resources and activities able to perform the following functions:

  • Data archive (including diversity monitoring and evaluation of diversity initiatives);

  • Advice shop (careers information);

  • Legal Education Laboratory (supporting collaborative research and development);

  • Clearing house (advertising work experience; advising on transfer regulations and reviewing disputed transfer decisions).

Third, and going beyond the concept of code as code and legal regulation as a shared space, there’s a more fundamental reason why we might want to take this approach, and it has to do with the deep nature of education itself.  In the plenary I gave to the Legal Education stream of the SLS Conference last year, I applied Seamus Heaney’s theory of the redress of poetry to legal education.  Heaney begins by noting how critics, poets and apologists for poetry relate poetry to current social conditions – how poetry can be, as Heaney puts it, ‘of present use’ (1995, 1).  He notes, though, that ‘poetry cannot afford to lose its fundamentally self-delighting inventiveness, its joy in being a process of language as well as a representation of things in the world’ (1995, 5), and he urges poets to what he defines as their fundamental calling, namely to ‘redress poetry as poetry, to set it up as its own category, an eminence established and a pressure established by distinctly linguistic means’ (1995, 5-6).  That word, redress, is a multi-layered description, too complex to go into in depth here, of what Heaney defines as the primary responsibilities of poets.  I take one sense of the word, though, as relevant to legal education.  Heaney goes back to an obsolete usage of the word, quoting from the OED:

Hunting.  To bring back (the hounds or deer) to the proper course.”  In this “redress” there is no hint of ethical obligation; it is more a matter of finding a course for the breakaway of innate capacity, a course where something unhindered, yet directed, can sweep ahead into its full potential.’ (Heaney 1995, 15)

Isn’t that a breathtaking definition of what can happen in education in its transformative moments, that phenomenological sense of understanding that is both freedom and discipline?  And doesn’t it describe so well the idea of education as performance, as at once liberation and agency, a becoming into what we are fully capable of becoming?

And in a sense, if we hadn’t discussed it on the formal conference programme, Anabela and her colleagues had provided us with a good example of it.  At the conference dinner we were treated to delightful performances from a local folk trio – Portuguese guitar, Spanish guitar, singer singing Fado and local folk music.  The young woman playing the Spanish guitar provided basic chords and ground base; and the young bloke on the Portuguese guitar played a tenor role, improvising & bridging between guitar bass and singer/performer.[5]  The singer dominated the repertoire – she was a powerful, confident open-throat traditional singer, good at bringing along a slightly abashed audience of biletian geeks.  The final Fado piece she sang was very moving, and sensitively accompanied by the others.

But I was drawn to the Portuguese guitar accompanist for he was remarkably skilled, and it took me back to part of my own past.  A lifetime ago I used to earn a living as a part-time musician in bars & restaurants, playing guitar, mandolin.  Amongst others I played with one of the best mandolin players I’ve ever heard (also a fine fiddler), Jimmy McGuire – we even went on holiday together in Italy, seeking out Italian folk music in the Campania, running out of money and making a decent enough holiday living going from resort to resort along the coast, sleeping half-board, playing Italian, Scottish, Irish and other traditional music for tips and food in wee rosticcerias & ristorantes for the Italians on holiday there, come down from the north of Italy.

Listening to the accompaniment, it was accomplished enough that I couldn’t tell where arranged accompaniment ended and improv began.  I suspected there was a lot more of the latter than the former, and to me that was one of the delights of playing traditional accompaniment.  Improv is often associated with cadenza-style bravura, or jazz free style, and there is that in it; but I love, too, the muted, intensely listening style of sensitive improv-as-accompaniment.  I’ve often thought of it as a good metaphor for lawyering as collaboration.  Clark Cunningham describes the lawyer as translator, which is a fine metaphor (and which similarly draws upon the arts to explain the relationship), and I think the legal educator/designer as musician, skilled at improvisation in cadenza-style and in accompanist-style, is another analogy that helps us explore the role.

Such intimate chamber playing, too, is a fine image for how we might re-envisage legal education – its regulation, its design, its interdisciplinarity.  There’s discipline, liberation, agency; and there’s innovation, but there’s also tradition and a body of knowledge and skill, re-interpreted, endlessly reworked anew for and by each generation.  Indeed it’s the responsibility of each generation to pass it on, but to do so (what else can they do?) in their own voices, addressing their own moment.

Next year, BILETA’s conference will be held in Aberdeen.  Need to brush down the kilt for the ceilidh…  See you there.

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