This is a session at ANU College of Law that I’m attending & liveblogging — see here for full details.  It was organised by Tony Foley & colleagues, and the keynote speaker is Judith Wegner from North Carolina, who in legal educational circles needs no introduction,  talking on ‘Developing Professional Judgment in Future Lawyers — A US Perspective’.

She began by setting the context — the ABA, she said, is about to institute learning outcomes based on competences, and she welcomed the work on threshold learning outcomes done in AU by Sally Kift & Mark Israel.   She offered two lenses: theory, based on the Carnegie Report, then observations from her own and others’ practice.

Starting with the Carnegie Report, she mentioned the Report’s emphases on ‘commonplaces’ of professional work; teaching and ‘signature pedagogy’; learners, learning sciences and assessment, and metaphoric apprenticeships.  She also related this to legal ethics & professional judgment.  She put this into the context of the multi-professions studies that Carnegie carried out under Lee Shulman– engineering, clergy, law, medicine, nursing, the PhD and more.  Quite an important point, I’ve always thought — we tend to think, in legal education, of Carnegie as a stand-alone, without this context, which is a corrective to insular thinking on the subject.

The legal education study was carried out on 16 law schools.  So what were the commonalities of work across the professions in the Carnegie studies?  She dwelt on:

1. fundamental knowledge and skills: academic
2. capacity to engage in complex practice
3. judgments under conditions of undertainty
4. learning from experience
5. create and participate in responsible/effective professional community
6. able and willing to engage in public service

Professional education should arguably relate to what professionals must do in practice.  On the issue of teaching and signature pedagogies, she made the point about teaching making a difference, though often invisible.  Interesting point.  I think in Transforming I make the point that it’s when a pedagogy starts to become invisible that it becomes truly powerful and a signature pedagogy.  She described the signature pedagogy as:

1. having characteristic approaches: visible, accountable, widespread
2. where theory & practice align
3. it has a surface, deep and tacit structure

It has potency — the frisson of energy/excitement/anxiety, and in the presence of expert and peers.  It had strengths but also a shadow side (what’s missing from the pedagogy) — she gave the example from the US of the case-dialogue method.  I like the idea of the shadow side, as I’ve said elsewhere.  It introduces the idea of the hegemonic power of the signature pedagogy, and Judith gave examples of that, particularly the use of appellate cases in first year law in the US, the use of language, critique, analysis, question-forming, etc.  Judith described Shulman as being very impressed with the cultural and intellectual power of the case method, particularly in critical thinking.  Judith described critical thinking in Bloomian terms (taxonomy and cognitive skills):

1. knowledge and comprehension (legal literacy)
2. analysis (from simple to complex)
3. application (from simple to complex)
4. synthesis (largely of cases)
5. evaluation (internal critique, little about justice)
6. Instructional techniques are key in the case method — where the teacher models scaffolds, coaches fades, and the student articulates, reflect,s explores — thus making thinking visible.

I think it’s interesting to put Shulman’s reception of the power of the case report pedagogy side by side with the critique of its linguistic power and method in Beth Mertz’s study of linguistic anthropology, The Language of Law School.   I’ve often meant to ask Beth if she were influenced in that book by Realist tradition — the same tradition that Dewey contributed to, albeit very briefly, at Columbia.

Judith went on to discuss learners, learning & assessment.  She began with the processes by which novices become experts, and in general:

1. developing contextualised, structured knowledge
2. involves tacit learning through observation, imitation, experience with many scenarios (not the same as ‘thinking like a student in a classroom’), quoting Bransford, Brown, Cocking, How People Learn especially chapter 2
3. how this develops in stages with practice over time — novice, beginner, competent, proficient, expert, ie Dreyfus & Dreyfus, Mind over Machine.
4. Assessment drives learning (formative & summative).

On metaphoric apprenticeships, she described how new metaphors may aid teaching and learning

1. three apprenticeships and professional formation
2. cognitive knowledge
3. skill/practice
4. identity/values/purpose
5. professional formation is more than the sum of its parts

This is, she said, a different way of thinking about curriculum which makes the invisible visible and creates a fresh approach to legal education.  Judith ended by applying everything she had been talking about to the AU context.  Her own trajectory…? Very ambitious, but nothing less than we’d expect:

1. Ethics & professionalism
2. professional expertise
3. leadership development
4. professional judgment
5. professional identity
6. professional competencies
7. assessment, of individual courses, and programmatic and institutional assessment

Her strategy was more theory, with experiment in practice.  She quoted the work of Gary Klein Sources of Power, the work on professional identity by my ANU colleagues, Foley, Hall, Holmes, Tang, Rowe and others, Lillian Corbin’s work (UNE), Neil Hamilton’s work, Judith’s own, eg Wicked Problems.  In the latter she raised the lessons we can learn from graduate students re socialisation, and new ideas re development at ‘emerging adulthood’ stages.  Some ideas re possible responses -

1. advising (and necessary tools?)
2. helping students take responsibility for emerging strengths/weakness
3. changing assessment over courses of study?

She drew attention to the work of Shultz & Zedeck:

1. intellectual & congnitive
2. analysisy and reasoning, creativity/innovation, problem solving, practical judgement
3. research and information gather ing, researching the law, fact finding, questioning & interviewing
4. communications, influencing and advocating, writing, speaking, listening,
5. planning and organising
6. conflict resolution
7. client business relations – entrepreneurship
8. working with others
9. character.

Finally she quoted the LSSSE findings from 2010; and the 2010 NALP Learning Study.  She wanted continuing legal education as laboratory, and oral histories as tool for teaching ethics & professional identity.  Judith ran a seminar called ‘Becoming a Professional’.  She co-taught using video linkage; sections in Cincinnati, UNC; each section had a partner instructor who was lawyer/judge; each section also had retreat/involvement with practitioners.  The focus was to introduce students to changes in the profession (through literature, eyes of professionals), introduce students to ‘soft slkills’; assessment was multimodal.

Morphing BAP with A2J Author on the CALI site (going pretty fast here…).  Legal aid organisations & courts were used, and students created guided interviews to collect data from end-users and develop needed documents.

Great presentation.  I especially liked the idea of legal education as being the laboratory of the law school.  Such a good response to Langdell’s original concept of the law library as being the laboratory of the law school.

The next session, after coffee, was a roundtable chaired by Kath Hall.  Some fascinating discussion about virtue ethics, more on the signature pedagogy, introducing values discussion with students, regulation issues, and much else.  An absorbing couple of sessions, so valuable to listen and share ideas; and I learned a lot.  Many thanks to Tony & colleagues for organising it.

I’ve accepted a position as a part-time professor in Nottingham Law School, starting this month, and concurrent with my position at ANU.  I’ll be working on research and publication projects with staff in the Centre for Legal Education (CLE) where there’s synergy with the projects that I’ll be setting up  in the Centre at ANU, in the field of regulation, technology-enhanced learning and educational design.  Why work with CLE …?

First, the quality of the work on a number of important subjects.  They’re doing fine research on work-based learning and regulation (Jane Ching, my colleague on LETR [see her research record here]); they are working with centres in Europe on regulatory and other activities (headed up by Dean Andrea Nollent), and the Centre is involved in innovative PBL-style initiatives (Rebecca Huxley-Binns, Reader in Legal Education).  Rebecca has already published a chapter in a book I co-edited with Caroline Maughan, Affect and Legal Education, and is working on on similar publications; and of course Jane and I will be working on regulation projects and publications.  Janice Denoncourt was published, on legal education & film, in the recent EJLT BILETA special edition.  In addition, all this fits well with plans at the ANU Centre for research and publications.

Second, and on purely practical grounds, it makes sense for research centres doing similar work to collaborate and share, not just theoretical but developmental projects as well (and coming from a Pragmatist, Deweyan perspective, I try to integrate these two where I can).  There is so much that needs to be done to improve legal education, and centres internationally need to support each other in this crucial work.  I’ve argued this since the 1990s, and my experience at the Glasgow Graduate School of Law confirmed the necessity for and value of such collaborative work.

Third, and perhaps most important, centres need to focus not just on their own jurisdictions, but also take account of global perspectives in legal education.  This makes sense on a purely practical level, too; and it involves the necessity for and urgency of change in legal education.  But there is more to it than that.  My argument needs a little unpacking — it appears in part in a recent article on change and innovation in legal education, in the International Journal of the Legal Profession), and in compressed form below the fold…

William Twining, and his description of the challenges of globalisation, is a good place to start.  In his Epilogue to Globalisation and Legal Theory (London, Butterworths, 2000) he comprehensively set out the challenges of globalisation to our understanding of law.  He defined globalisation’s challenges to traditional legal theory as being threefold:

1. its attack upon the black box theory of nations and legal systems as closed and isolated entities
2. its denial of the separation of municipal state law and public international law
3. its challenge to the present conceptual framework and vocabulary of legal discourse (Twining, 252).

He rightly identifies that one implication of globalisation has been to make more relevant and pressing the need for a revival of general jurisprudence, and in a series of ten points he outlines what this might involve.[1]  Globalisation’s threefold challenge to traditional legal theory is also a challenge to the future of law schools.  As Twining pointed out way back in his famous inaugural lecture ‘Pericles and the Plumber’ (1967), most law schools still do not give radical educational theory and praxis sufficient consideration.  Too often pedagogy is dismissed as mere classroom technicism, or a black box imported from another discipline, and regarded neither as law-talk nor talk about law.

Legal education, in any jurisdiction, can be law-talk, and it often is talk about law, though rarely recognised as such.  As Dewey’s career and work reminds us, philosophy and education cannot be treated as separate disciplines or even as distinct categories of thought.[2]  Viewed in this way, education presents a perennial epistemological challenge to law, and the nature of the challenges can be defined in terms close to Twining’s threefold definition of globalisation’s challenges to traditional legal theory above.  Thus, education and educational research denies the ‘black box’ of the legal classroom: the class is part of a complex web of experiences for students and teachers, and must be treated as such.  Second, the separation of legal education itself from other aspects of professional life and wider social issues cannot be sustained.  In particular, regulation of legal education within a jurisdiction cannot be sustained unless viewed globally and in the context of developing professional contexts.  How do we create and take in regulation, and how does regulation create our legal education, how does it shape us, how does it (in every sense) take us in?   Finally, educational theory challenges the conceptual framework of the law school, its structure (both material and human) and its conventional discourse, not least the scripts with which staff explain their professional lives to themselves, and the scripts that students create around their emerging professional identities.

That’s a sketch of the basic argument.  Now set it in the context of international financial and labour flows, new economic and political environments, the increasing globalisation of legal work, and the basics take on a new complexity that we need to address.  There’s already a literature on many aspects of this, of course — see for example Thornton (2001), Faulconbridge & Muzio (2009), Silver et al (2008), some of whose work shows how education can be used to support discourses that seek to mitigate, stifle or deny these three challenges, or misread them in the thrall of neoliberal agendas.[3]   Education is, after all, a highly political process at every level.  The key problem, identified in Twining’s article back in 1967 and perennially with us, is the issue of change that these challenges inexorably bring: what change can/will happen, and how it can be shaped in our law schools (and how is it shaping us), and how can we achieve critical dialogue and praxis on the issues?

In Transforming Legal Education I outlined four ways in which legal education needed to be transformed, which I summarised in the following graphic.

The four book publications I’ve worked on in that period were, in a sense, attempts to map out change in each of the lozenges; or at least to begin the process of drawing attention to how law schools could begin to address some of the issues.  In the graphic, they broadly map onto their place in the matrix — Transforming for example focuses on experiential learning, top left int he graphic, (though also technology and the history of technology in legal education, seeing both as essential to a material understanding of experiential learning).  The two book series I co-edit have in part the same transformative agenda.

In the six years since Transforming was written, the agenda hasn’t altered that much which, given the radical outline of the agenda, is hardly surprising; but dismaying all the same.  There is so much that we need to do to improve legal education.  For example the effort to create discipline-specific technologies appropriate for our curriculum designs is considerable: we need to collaborate on that, on the process of design, specification, build, testing, use, feedback and so on.

We cannot go on as we have done, in our separate jurisdictions, when law itself is increasing globalised.  The ANU Centre will therefore be a distributed centre, working in joint scholarly projects on a global scale, and not just with centres such as Nottingham Law School’s CLE in England but with centres elsewhere in Australia, and with other centres in the US, Canada, Scotland, Wales.  And not only on the above challenges.  The globalisation of comparative international legal education theory and practice is still under-theorised and under-researched – that too needs to change.

The latest issue of EJLT is out, and it’s a special edition, edited by Sefton Bloxham and me, consisting of papers from the 2012 BILETA (British & Irish Law Education Technology Association) legal education stream.  The conference was liveblogged on this blog.  Surprisingly, and against the run of recent conferences, there was a surge of presentations at the legal education stream, which was very welcome, so there was no shortage of material for the edition.  There’s already a collection of papers from other streams, edited by my co-host at the 2012 Northumbria conference, Abhilash Nair, who co-edited with Richard Jones a special BILETA double issue in the International Review of Law Computers and Technology.  Both EJLT and IRLCT editions were peer-reviewed and were compiled in time for the 2013 conference, being held 10-12 April at Liverpool University.  The 2012 conference theme, ‘”Too many laws, too few examples”: regulation technology, law & legal education’, quotes the French revolutionary and lawyer, Louis Antoine Léon de Saint-Just — more on that below.  So what’s there to read in the EJLT edition?

We came up with seven papers and two commentaries in the end.  The Editorial gives a brief outline of their contents, and also explores aspects of regulation, particularly some of its Enlightenment roots, that could apply to legal education.  The articles are wide-ranging, focusing on mobile learning; e-readers and e-publishing and flexible, open learning; the dichotomy between what and how in legal learning; law school websites and their information; film and legal learning; helping students to understand case law using instructional environments, and the use of BAILII and the JISC Open Law project in providing free access to legal primary resources.  The commentaries described the use made of online referencing systems in conjunction with OSCOLA, and  Learnmore, a legal skills wiki focusing on legal skills with multimedia and student-collaborated content.  The journal is, in effect, a cross-cut of the work being carried out in legal education and technology in these isles; and comparison with others in the past (eg here and here) illustrate not just how technology is changing, but how our use of technology is becoming more sophisticated, and more embedded in the social and intellectual structures of our institutions and our personal lives.  That brings many opportunities, but problems too, some of which are explored in the articles and commentaries.

The edition was dedicated to Professor Abdul Paliwala, University of Warwick Law School, who has recently retired.  It is difficult to over-estimate the contribution that Abdul has made to the field of technology and legal education, and a number of us at the conference felt that in recognition of the major contribution that Abdul has made to BILETA over the years, the conference should be an occasion to appreciate that.   There is therefore in this issue of the journal a brief appreciation of Abdul’s major contributions to the field of legal education and technology (he has of course contributed to many others — globalisation and legal regulation of the digital divide, law and economy in developing nations, for instance), together with a comprehensive list of his publications and a CV.

The theme of the 2012 conference was regulation, as we made clear in our brief essay on it for the conference handbook.  But we wanted to expand the idea of regulation beyond a single jurisdiction to global concerns, and beyond  economic efficiency to wider cultural and values issues, and beyond the regulatory concerns of the present to the deep historical roots of the ethical and political dilemmas we face when confronted with regulatory policy and practice.  The words of Saint-Just quoted above go to the heart of at least one dilemma in regulation, pointing as they do to the gap between legislation and action in the world.  The journal’s Editorial explores this, describing some aspects of Scottish versions of civic humanism and Stoic thought, a tradition that was integral to Saint-Just’s intellectual repertoire.  If the tradition faced major political challenges in the new republicanism of France in the 1790s, in Scotland the Stoic tradition faced its first major modernist challenges with industrialization and commercialization that was beginning to take place in Scottish society on an unprecedented scale.  In the work of Adam Smith, Adam Ferguson and others we can see attempts to define regulation and regulatory activity not merely as governed by the market or by actions of economic necessity.  As we say in the Editorial with regard to Ferguson, his

appeal lies not only in his refusal to let philosophical systems blind him to the stark realities of capitalist shifts in later-eighteenth-century Scotland, but also in his refusal to admit that a complex and sophisticated philosophical tradition two millennia in the making had little of worth to say to him or his society. Many of the revolutionaries in Paris would have agreed with him regarding the tension, but committed to direct action like Saint-Just they took brutal courses of action to the challenge of resolving the dilemma presented by the Stoic doctrine of necessity. The critical question they failed to answer regarding the doctrine was not the moral concept itself, but its implementation and continuation in the world: put simply, at which point does necessary action become unnecessary? At which point did the title ‘Committee for Public Safety’ become a chillingly ironic comment on those issuing its orders? Ferguson was not averse to action – he was Chaplain to the Black Watch regiment, and saw battlefield action in Flanders, and this (together with an understanding of the Highland culture of his birth, based as it was on honour) probably contributed to his understanding of the crucial moral value of ‘choice, practice and conduct’. Those qualities lie at the heart of regulation of any activity in our society. Stoic exempli are an essential element of them, for such examples inspire us, guide us, give us the moral direction, the moral habit and the moral strength to follow, to innovate, to think critically and not just about regulation and law but about the basis of fairness and unfairness, what the historian E.P. Thompson called the ‘moral economy’ of our society.^[1].  The Stoic philosophy underlying Saint-Just’s words should inspire a new view of regulation. It should inspire us to try again; to fail again; to fail better.^[2]

So much of current regulatory discourse veers towards arguments of economic efficiency and consumerist option.  In its place I’d argue, as Ferguson did, for the crucial moral value implicit in choice, practice and conduct, and for the analysis and understanding of that to be close to the centre of legal education.

1. ^[1] Thompson, E.P. (1971). The moral economy of the crowd in the eighteenth century, Past and Present , 50, 76-136. ↩
2. ^[2] Žižek, S. (2009). In Defense of Lost Causes. London & New York: Verso, 7, 361. ↩

Eager readers of this blog, both of them, will have noticed that there’s a new tab top right for something called the Papay Convivium, which was trailed here.  What it’s all about is on the tab, so I won’t spoil your anticipation, except to say, modestly, that it’s an attempt to re-define and transform the nature of an academic conference.  Any questions, comments, expostulations etc, just post them below.  We’re pretty sure it’ll work out, and of course we’ll be live-blogging it here and probably elsewhere.  If anyone has funding and ideas, or one and not the other, and wants to hold convivia on Papay, or find out more about the idea, just drop me a line.

Apologies to readers of this blog for my recent silence — LETR has been soaking up all available waking hours.  Other matters too: last week I resigned from Northumbria Law School.  I have accepted a full-time professorial post at the Australian National University’s College of Law, and will be starting there in March 2013.

ANU’s was an irresistible offer.  I’m already an adjunct prof there, and have worked with staff — they are a dynamic and incredibly innovative cadre, collegial too.  It’s a great atmosphere, and a real privilege to be given the opportunity to work with them.  I’ll be heading up a centre for legal education & the profession, along the lines of a distributed web-based centre, global in its reach, interdisciplinary, taking in all forms of experiential legal education, all forms of technology use.  I’ll still be based in the UK, with a professional foothold here (more on that later) and working five months a year on campus in Canberra.

More on this after 20 December, deadline for our LETR report to be submitted to SRA, BSB and IPS.

The Human Face of Big Data has been splashed across screens & newsprint the last few days — see The Guardian’s excellent Datablog article, and Scientific American for summaries of what it’s about.  According to Rick Smolens, one of the two founders, it will last for two months, asks respondents 60 questions via a mobile app, and as of Tuesday am had generated 1.5M responses. Could we do something similar for legal education?

I was thinking about this when we were designing our online questionnaire in LETR for legal education in England & Wales.  There’s a major lack of internationally-comparable data on legal education.  Much of it is either too jurisdiction-specific or too high-level or requires extensive disaggregation (as in OECD stats, here and here).  The voices, lives and choices of students are also hard to detect.  However with LETR’s focus jurisdictionally on England & Wales (albeit we’re comparing quite extensively on international comparators), and  the costs involved (as well as the timescale in getting the app approved by Apple — the Human Data iOS app is still grinding through) it wasn’t really appropriate to the project.

Why would legal educators want to do this?  We need information about legal education, and not just jurisdictionally but globally.  There is a place for major bodies such as OECD, and jurisdictionally there are extensive data-gathering activities, particularly by regulators, eg ABA Bar Admission information, or the UK’s SRA education pages.  Helpful stuff, but it’s information-push largely, from regulators to users.  There is still a place for large-scale, cyclical data derived from those in legal education: students, trainees, academics, administrators, supervisors, professions, regulators.  We need to hear a lot more from them on a data platform that’s international in its design and reach.  And we need to feed that information to those who make policy decisions, in government and amongst regulators.  Susskind pointed out in an essay for Publius in the Berkman Centre back in 2009 how important public data was for government and policy-makers, but that it was ‘far from clear’ that the ‘cumulative shift in policy and practice’ that was required had actually taken place.  Things have improved — see eg the Legal Services Board’s pages here — but we still have a long way to go.

So what if a number of legal educational centres in different jurisdictions were to join together to share the cost with sponsors, design the project and the apps — a longitudinal and cyclical study not just of student learning, study, curriculum choices, engagement etc but of other issues — how big is student debt?  how difficult is it to get jobs?  is credentialism on the increase? how can/do learning institutions support early professionals?  And many many other questions.

Is that a runner, do you think?  We have a number of centres who have designed educational data structures — I’m thinking of George Kuh’s work on engagement in the US, implemented in NSSE, and Carole Silver’s excellent adaptation of it in the LSSSE – so nationally in most jurisdictions there is the expertise.  Our work in the LETR project, particularly on the literature review, has certainly identified the need for it from a research point of view.  And the great advantage of the Big Data project, with its emphasis on crowdsourcing, is that it generates virtually real-time data for respondents, for at least some of their input into the app, so users will be able to see their own data profile against other respondents globally.

Anyone else out there excited by these possibilities?

I first came across the idea of parallel play way back in 1980/81 when I was doing a postgrad Dip in Education at Glasgow U. It was one of those many fascinating ideas that seemed to say so much to me about the possibilities of play in education. As far as I remember the idea was developed by Mildred Parten, a US child psychologist in the 1930s as a term to describe a subset of social and learning behaviours of pre-school children (ie pre-5 yr olds). Around a certain age, children develop a sense of others playing around them, while continuing with their own play. So they’ll play with the plasticine, but begin to observe others around them doing similar things, and maybe start to incorporate some of that in their own play. According to Parten this is the first of at least three stages, the other two being simple play, then more sophisticated co-operative play, where there’s more of a sense of purpose and shared goals about the play. This isn’t a hierarchy from primitive to sophisticated though – pre-school children move between the three stages in their play. Quite why they do so, I can’t remember – perhaps Parten had some idea of a meta-purpose that would switch between the modes of play, maybe not.

At any rate, after the course and when I began to teach I began to observe the same differences in my adult education classes. These generic forms of play were really continuous throughout adult learning, but what interested me was why adults switched, and under what conditions. Then in the nineties when I was constructing early learning applications in Guide Hypertext, and using the web, I became convinced that Parten’s ideas applied to online learning patterns even more than they did in classrooms. Going beyond her observational research (carried out in intense, short bursts of observation lasting a minute) it seemed to me that making adults aware of the types of learning they engaged in and discussing it with them might help them to understand what was going on when they learned.

I had other models for this, in the middle nineties. Bandura’s classic research on ‘observational learning‘, for instance, was taken up by Terry Mayes and others — see here, eg. Their development of the concept of vicarious learning was an absorbing version of parallel play, and useful at a time when many online learning gurus were pumping interactivity as the key to online learning. But what about reflective learning (hot reflection, in Schon’s term, that takes place as a conversation in a seminar actually takes place), what about the deliberate choice to inhabit a space, not an active role, and to be engaged while disengaged? That’s the secret of parallel play, where the child actually does something quite sophisticated: she continues to play, but also observes and can modify her own play as a result of observation. Mayes and his group also emphasised (unlike Parten, I think) the role that personal relationship plays in learning through observation in learning communities.

Distinguishing between Parten’s three forms of peer sociability seemed to me to be essential if educators were to think of how students might learn socially at university. In terms of pedagogical approaches, for example, simulation could easily accommodate all three, but not all at once; and there’s a good case for asking designers of sims what it is they actually want students to do in terms of Parten’s three forms of peer sociability whenever students interact in a sim. When, for instance, might they want to interact with each other, or simply engage in the sim, or when might they want to simply act, while observing others do versions of what they are doing, and learning from it?

The more I think about Parten’s sociability research, the more I find it applies to social situations quite different from the kindergarten. On one interpretation, Parten’s work is really a study in how we engage in play and form our relations with reality – how we engage in the social construction of that reality. For example, how do artists learn their craft, and what part does sociability play in that? How does that affect how they represent a landscape, for instance. Look at how Samuel Palmer might draw his beloved Shoreham, contrast that with Constable’s treatment of a landscape, or compare it with the loving, detailed density of another much less known artist, Robin Tanner, drawing his passionate versions of a Wiltshire that was no more really there than Shoreham was in Palmer’s dreamy drawings. In a sense the artistic engagement with reality beyond pigment, ink and paper lay on a spectrum of engagement in which they chose parallel play in some of their art, and in other ways they would engage closely with a process of making and representing the detail of their vision.

In writing the process is just as complex, hidden, a tension of purpose, material, vision, the immediate tactics, the writer’s own nature. Writing in a letter to Stevenson about RLS’s novel Catriona, for instance, Henry James noted: ‘The one thing I miss in the book is the note of visibility — it subjects my visual sense, my seeingimagination, to an almost painful underfeeding … when you, e.g., transport your characters, toward the end, in a line or two from Leyden to Dunkirk without the glint of a hint of all the ambient picture of the eighteenth-century road’.^[1] Stevenson was well aware of the tendency of fictive reconstruction to become hypnotically self-referential: ‘How to get over, how to escape from, the besotting particularityof fiction. “Roland approached the house; it had green doors and window blinds; and there was a scraper on the upper step.” To hell with Roland and the scraper!’^[2] It is interesting that Stevenson has just finished recounting in this letter to James how he turns for relief from fiction to Fountainhall’s Decisions, a collection of eighteenth century case reports. He comments: ‘There’s literature, if you like! It feeds; it falls about you genuine like rain’ (ibid, 297). Stevenson was hugely respectful of James, observed him, learned from him; and he learned from legal literature too, how to control and distance his narrative when he needed – two forms of parallel play.

There are wider implications for the approach, which involve writing, the arts and particularly visual arts, which I’ll explore in another posting.

1. ^[1] Edel, Leon, ed. Letters by Henry James. 4 vols. London: Macmillan, 1974-84, II, 438, 21 October 1893. ↩
2. ^[2] Stevenson, Robert Louis. The Works of Robert Louis Stevenson. Vailima Edition. 27 vols. London, 1923, Letters, vol.23, 296. Letter to Henry James, July 1893. ↩

Chaired by Joshua Rozenberg – Diane Burleigh, Ashley Chambers, Peter Crisp CE BPP, Tony King, Taryn Lee QC, Julian Webb, Wes Pue on panel.  Vigorous questioning by Joshua in true Question Time fashion.  First question on employers and students: a variety of answers.  Wes gave the situation in Canada, and what he wanted to see from LETR was a simplication of the routes into qualification.  Taryn favoured an aptitude test.  Diane wanted to broaden out discussion to the debt-free route to qualification via CILEX — been there for 50 years — and as Chief Exec of CILEX she’s in a position to describe it in detail.  She wanted to hear more of that at the Symposium, rather than yet more detail and discussion about qualification of solicitors and barristers.  Good point!  Julian was pressed by Joshua about the range of routes — he said we (LETR) had a lot to learn from the CILEX approach, and the way the market was going, there would be more of those sort of routes in the future.

On questioner raised the question of balance of intellectual rigour and access.  How could that be achieved re the judiciary.  One way, suggested by my colleague Jane, is to train them from the outset, as in France (thanx Jane).  The sort of question that could result in pious replies – and there were quite a few that didn’t really get to the issue of how we achieve balance.  Joshua tried to be controversial, pointing out how the Bar was concerned about social mobility.  Ashley addressed some of the issues.   Some of the access routes he said, could be a little bit fairer — v good point, and the social capital literature (Sommerlad et al, eg) certainly evidences this.

Gus Johns made the point that HE replicates what’s going on in the school system.  The hierarchy of privilege still remained.  Does it not require some agreed system of affirmative action to ensure diversity and inclusion.  Ashley said there was a perception of old boys’ networks (not at his firm, he hastened to add).  Taryn — the Bar is doing work on that, she repeated, citing work on BME students at Inner Temple.  Interesting and essential question from Gus, and I’d have liked to have heard all speakers on the topic.

A question from an ILEX practitioner raised the issue of client handling.  Tony King observed the range of clients, from individual needs to corporate clients, and there needed to be particular skills for particular types of clients.  Diane said client-facing skills were taught, but not assessed, interestingly enough, because the practitioners were already doing this activity.  However this was going to be changed, and there will in due course be an assessment based on work-based learning.  Interesting issue re standardized client initiative – how might SCI be used in work-based learning schemes.

Julian cautioned us not to caricature academic legal education — there’s more variety and richness than we think.  Joshua pressed him — shd we bring informal client skill teaching into all legal ed programmes?  It’s been there in the LPC and BPTC for a while, Julian said.  From consumer client studies, communication is still an issue — good point.  Tony King observed that law services employers had a duty to ensure employees were trained appropriately in this regard.  In response to a question about such skills on the LPC, he noted that yes, client skills were expected, but at a progressive level throughout a firm.  Peter Crisp agreed, observed that alignment was currently missing between the various stages of legal education.  Useful session, with sign off by Joshua.

Sir Mark Potter & Dame Janet Gaymer wound up proceedings, describing it as an enormously helpful two days for LETR, and I completely agree with that.  Lots to think about, lots to discuss amongst LETR.  Mark thanked SRA staff, especially Tracy Varnava and her staff for the superb (which it was) organization of the whole event.  With all her experience and her sterling work at UKCLE, it was only what we would expect!

I attended Prof Stuart Bell (York U) and Dr Rachel Field, (Queensland U of Technology) on regulation and innovation at the academic stage.

Stuart began by making the point that there was little on research on effectiveness of professional regulation in the undergraduate degree, one way or the other.  HE regulation has more of an impact.  The constraints that do exist are largely endemic in the HE sector, ie scale, path dependency and risk aversion and resource limitations. Two questions he was asked: what limits might existing education and training regimes set on innovation with the legal services sector; and what constraints does current regulation impose on innovation in legal education and training?  He queried: is innovation a good thing in HE?He said it was odd that in HE innovation wasn’t queried more than it is.  Curious point — to be fair, he just put it out as a point for consideration.

On the subject of innovation and legal services, he displayed two photos: one of an old-fashioned High St c.1930s, and home to DLA Piper when he joined it when it had 16 partners.  Now has 4,000 partners, massive global firm.  The contrast reflects the change in the legal services market.

Deja vu, though — he quotes Peter Birks from the 1996 collection of essays, and he argued that professional regulation is no longer a real concern to those designing undergrad legal education.  At York, the School’s remit was ‘to establish an innovative and distinctive law programme which is intellectually rigorous and develops relevant graduate skills’.  PBL curriculum design was integrated substantively, embedded across all of the curriculum and with skills and academic knowledge integrated.  PBL encompasses scope and sequence — a true curriculum concept.  There is compulsory ethics module, work done on normative and behavioural ethics and professionalism.  No service teaching: his School collaborates with other Schools.  Interdisciplinary learning and there is a commercial context option in which students carry out a simulation of a law firm.

JASB were very welcoming of the approach, as were the professional bodies. He observed that if a cogent argument is put forward for change, generally it will happen.  Ingredients for innovation include, in collaboration, encouraging the ‘collisions’ of creative people, open source and sharing, and risk taking.  Innovation inhibitors include scale, risk aversion and lack of resource bases.  Don’t agree re innovation; and yes, professional regulation hasn’t had much direct impact on u’grad curriculum.

Rachael Field next up.  She focused on two recent developments — development of Threshold Learning Outcomes for the u/grad law degree, and the development i nitiatives to address elevated levels of law student psychological distress.  Internationalization was another important theme.  Re the Australian context she pointed out that legal education is still u/grad largely, focused on the Priestley 11 (almost purely knowledge based, and held back innovation because of that); there is the development of graduate capabilities in most Australian universities, and a call for the profession for work-ready, resilient graduates with relevant skill-sets.  There had been empirical studies on law student psychological well-being; studies indicated less than 50% law grads employed in the legal profession 4 months after graduating.

TEQSA 2011 established TEQSA in response to the Bradley Review of 2009.  The AU government aims to reform HE to widen participation; and in so doing has also committed to underpinning this growth by a robust QA and regulatory framework.  The LTAS (Learning and Teaching Academic Standards Project) framework, authored by Sally Kift, Mark Israel and Rachael, was partly in response to Bradley, knowing that TEQsa was on the horizon.  Rachael described the consultation.  The drafting principles included being not too general, not too prescriptive, appropriately pitched, can be implement and much else.  They were careful to avoid standarization of currricula, teaching to the test, stifling of innovation, focus on low-order achievement.  She summarised the TLO framework, which she describes as challenging the Priestley 11.

On student distress, she presented some of the research on how this comes about and is manifested in student behaviours, and drew a line between that and the distress in the profession.  She cited competitive and adversarial nature of legal ed and culture, and the way law is taught.

Rachael was exploring non-adversarial practices in law school and in legal practice.  Her ALTC Fellowship aimed to promote sudent mental health by stimulating adacement in the legal curriculum, its pedagogy and much else.  She described the initiatives across law schools in Australia.  Fine presentation, full of fascinating insight.

If a session is to be judged by the discussion it stimulates, this was an excellent session. Absorbing conversation that ranged between funding for universities, effect of professional programmes on u’grad, effects of clinical legal education, how we can learn from kindergarten methods of learning, the uses of collaboration.

I attended Alex Roy (LSB), and Prof Rob Wilson (Warwick U, LETR consultant) on Identifying and Developing the Future Workforce.  Alex kicked off: large number of firms, mostly small (2-4 partners — over 20% of the workforce re solicitors, much larger proportion of law firms in E+W), few large firms.  Turnover looks like the internet long-tail curve.  A key trend is large firms entering individual legal needs market — conveyancing market typical example.  These types of firms have implications for skills bases, etc.  Another key trend concerns the services provided by paralegals — 150,000 authorised in the workforce.  Half of people doing legal services work not regulated…

Major question concerns skills of this element of the workforce.  The data presented by Alex was quite absorbing in its implications.  This is particularly true of online services. LSB recently conducted research on this with 4,000 consumers.  They analysed how they contacted them — internet-based searching was a key element.  18% used email and internet to communicate with their lawyer, 12% by post.

Impact on skills required?  There is a move away from general to specialist skills; law firms will see a wider range of people employed; increasing role for management of work carried out externally; more working checking & updating systems.

Regulation, and how it will change?  He observed that facilitating change and innovation was essential, as was improving customer service.  Regulation was moving from rules to outcomes-focused regulation (OFR).

[At this point my wireless conference connection disappeared, probably because I had to checkout.   Thanks Lowry Hotel, first rate five star service...  Blogging from iPad from now  on]

Conclusions:

1.. much of the market change involves changes to business needs from education & training.

2. challenges in the future are much like now – ensuring quality, regulating complex organizations

3. outcomes focused, entity based regulation will be central to dealing with the risks posed

4. some activies will inveitably be linked to specificc individuals possessing specific skills (education and ongoing training)

5. regulatory processes will be similar (outcomes, authorisation, conduct regulation and enforccement) but approaches will differ.

Rob Wilson next – three parts to his presentation: rationale – why make quantitiative skills projections, method and approach, and results and conclusions.
General rationale included helping key actors to take the best informed decisions about the  ffuture.  There are problems re forecasting, and constraints, but it can be useful.  There are problems re data in the Labour Force Survey – there are limited sample sizes for the legal profession.  He used Working Futures national employment projections, work done for Skills for Justice (2010), and models moderated by qualitative evidence.  Results will be fed to the LETR group in due course. His results, presented in graphic form so difficult to reproduce here on a wonky 3G connection,  showed interesting patterns of growth and decline in the workforce.  Some conclusions: assuming a gradual recovery of th economy, overall employment levels will rise; replacement demands are even more significant, with important implications for education and training.