Hemiola in legal education – afterthoughts on the Directions conference

I’ve summarised my keynote in a blog post on the Osgoode Professional Development blog, so no need to comment on it here, except to say that the place of the arts in legal education design is a long-neglected area of educational research – more of that at the end of this blog post.

This was the second Directions in Legal Education conference held at CUHK, and in many respects it was more focused than the first.  There were over 80 participants, 42 papers, a debate, a plenary, two keynotes and other events, a conference dinner, all against a backdrop of the immense energy of Hong Kong, and the green beauty of the mountains surrounding Sha Tin, whose lineaments (I’m probably the only person ever to think this) were uncannily the mountains of Appin above Loch Linnhe.  Bringing it all together was a major feat for a small team.  There were fascinating ideas explored in the parallel sessions that demonstrated the breadth of thinking in legal education not just in Hong Kong but in adjacent and other jurisdictions on what is the other side of the world from us visiting from the global north and west.  Working in legal education in law schools in Hong Kong and Australia cannot but engender humility.  There are colleagues who create a constant upsurge of innovation, seizing the moment, resisting the forces of ‘dynamic conservatism’ as Schon put it neatly – the vigorous effort to remain the same, which characterises those law schools that lose a sense of future possibility.

If this conference did chart directions, which directions, which destinations?  That was surely the aim of the conference panel, entitled the Great Debate, referencing of course the truly enormous debates that have shaped modern thinking.[1]  For example the debate between Burke and Paine; or in cosmology the Shapley-Curtis Debate over the size of the universe.  It was ironic of course: our great debate was tiny by comparison.  But it was symptomatic of larger debates, and how we resolve the issues is important in our field.

So what were the issues?  In a surprise turn, the conference team asked students to supply questions – something revolutionary there, surely.  Most legal education conferences talk about students rather than to them.  And here was a panel facing questions from students.  It felt heady, almost like the glory days around 1087 when a group of neither monks nor professional scholars who wished to study, called themselves students, set up this amazing new thing called a universitas scolarium, organised it themselves, hired and fired faculty, fought for rights from town councils, and cared for each others’ nationes and individual student welfare.[2]  Here are the questions:

  1. Search tools and databases make it easy to find an abundance of seemingly relevant information. In order to balance this ease with industry, how can Law Schools guide students to employ these resources to learn more effectively and thoroughly rather than to regard them simply as time-saving devices leading to superficial learning?
  2. Which do you think serves the professions and the public better:  three essentially similar PCLLs delivered by 3 institutions or a unified examination or, as recently proposed by the Law Society, a combination of the two?
  3. Do you see any educational advantages in having students prepare teaching materials or knowledge resources for their fellow students? For example, would it be helpful if students were encouraged, even required, to prepare videos or podcasts about key cases or important legal issues for the benefit of their fellow students?
  4. Is it likely that artificial intelligence/ legal tech solutions will bring major change to legal practice in the near future?  If so, how will lawyers work differently? And how can we better structure legal education on the cusp of this technological revolution, perhaps making use of technology in legal education, to make sure students get the skills they will need for the future job market?

They’re all on the button.  The questions deal with the place of massive information overload; with the question of regulation of standards via a common entry examination structure vs regulation of educational quality; the variety of programmes vs one teacher-proof programme, and the place of students teaching other students.  All are issues that have been problematic ever since the eleventh century.  Then, students were faced with the rise of information overload in law (in Justinianic texts and canon law); the rise of multiple and varied models of universities (some student-led, some faculty-led, different organisational structures and focus, northern European universities more faculty-led, southern university more student-oriented); and the necessity to organise and support themselves in their studies in often harsh economic and cultural conditions.  The rise of new and complex genres such as the gloss and related texts was in fact the formation of new technologies of information structure and dissemination.[3]   Much of that should sound familiar to our twenty-first century ears.

There were a range of answers from those on the panel which comprised Edward Chan, King Sang SC, JP, Jeremy Dein QC, Martin Rogers, Partner Davis Polk & Wardwell LLP, Julian Webb, Melbourne U, and me.  What struck me about the discussion was how little serious debate there was between the participants: generally, we agreed with one another.  I wish the Law Society of HK had been present – I believe they were asked, but did not make an appearance.  Here are my answers:

  1. My answer was simple: better curriculum design, based upon the new media environment. New curricular solutions such as PBL are solutions to this problem.  I’ve written about this at (probably too much) length in my article on Disintermediation.
  2. On 2/, there were always going to be tensions between the topics of diversity, quality and risk. On the issue of a common entry examination I said it was my personal view that a regulator abrogates responsibility for legal education when it retrenches from engaging with providers on issues of educational structure, culture and content, and in its stead creates an examination.  The strategy works for limited situations such as QLTS, where a regulator in one jurisdiction has no control over the quality of legal education and professional practice in the jurisdictions from where practitioners originate.  In its own jurisdiction and on its own or even as the predominant element in a regulatory strategy it cannot work to improve educational structure, culture and content.  I also argued for diversity of institutional programmes allied to benchmark standards across programmes – nothing new there.  But in addition I said that that could only work well if providers and regulator were prepared to enter a shared space where innovation was shared along with much else – and added that that was surely easier to implement in small jurisdictions such as Singapore, Hong Kong, Ireland and Scotland than larger jurisdictions.  The shared space concept was something we co-authors developed on LETR, and I’ve been elaborating since then in a variety of fields – the very opposite in many ways to the common entry examination approach of the SRA’s SQE, and to Bar Exams.
  3. On 3/ I was asked specifically to reply. I said I emphatically agreed with the proposition, and gave examples.  Some of the examples from the research that I mentioned in passing I’ll outline here.  There’s a growing body of work on assessment, for instance, that has shown that students reviewing other students’ work is more beneficial to learning than receiving feedback from others, including staff.[4] Admittedly this line of research on peer-review is not the same as students preparing resources for each other, or peer-learning as it’s commonly known in education.  But the principle has long been recognised and researched.  In legal education for instance there is a substantial article on collaborative and co-operative learning by Roberta K. Thyfault and Kathryn Fehrman outlining the research and the ways collaboration can be facilitated across a wide range of classroom situations.  And to counter one objection to collaborative work, that students who are high achievers in the group obtain little from the experience of peer working, we could carry out on collaborative learning the same pattern of granular research that has been carried out on students reviewing other students’ work.
  4. To be honest I can’t remember my answer to this one – I think I deferred to the practitioners on the panel.  If asked again I would point to the Editorial I wrote in the 2016 special edition of The Law Teacher on what I called ‘Learning/Technology’, to represent the fusion of the two that has always been part of legal education’s identity.  The edition was a ten-year update from the last I edited.  I talked of three innovations that will affect legal education in the next decade – the mobilisation of legal educational cultures, the advance of exotic algorithmic applications such as Blockchain, and the development of exocortices.  On the last, this is what I wrote:

    If exocortices are no longer below the horizon of possibility, and the concept is already with us in terms of brain–computer interfaces (BCIs) such as Emotiv Systems’ Insight device, then the cybernetic exocortex will have a significant effect on educational and professional legal skills and will transform personal learning. When they are allied with sophisticated communications interfaces, of which Amazon’s Echo is merely a precursor, there is the possibility to create a much more dialogic legal education tutor than before.

    I’ll say more about this in a future blog post, for I think it’s an important line of digital development in legal education.

There is of course a larger infrastructural research point here to the debates, for both participants and audience.  Were legal education colleagues aware of the basic research on each of these issues?  If not, where could they go to get a quick basic grounding in it, even while listening to the debate?  Shouldn’t we be organising our research field such that we gather and present this research for colleagues, and for others including students, regulators, the profession and anyone else interested in legal education?

If there were no large resolutions at this conference there was at least the exploration of issues and the possibility of mapping out ways to improve the situation.  That was certainly part of the informal networking, and not just about the situation of legal education in Hong Kong but about the situation of legal education research, globally.  And it stimulated thoughts afterwards, as all good conferences should do.  A couple of days ago one of my sons, Magnus, and I were travelling in the car listening to a traditional Scots band from the 1980s, Ossian, playing Colin Campbell’s four-part pipe jig, Troy’s Wedding, and he commented on the rhythmic hemiola in the syncopations of the third part – threes on twos.[5]  And in a flash the word hemiola took me back to Geraint Howell’s paper, ‘”Every pint bottle should contain a quart” – expectations of legal education’, which I liveblogged.  What’s the answer to the problem he outlined of having to do more in the same time and with the same resources?  Music gives us the answer: re-compose, so that the time signature of the curriculum itself is re-configured by a sophisticated hemiola, a re-thinking of notes and rhythm, content and structure, together.  Following what I was saying in the keynote, it’s yet another example of art helping her sister discipline, legal education, find practical and theoretical ways out of the compositional dilemmas she finds itself in.

It was great to catch up with friends and colleagues – from Australia, Anneka Ferguson (ANU), Kate Offer and Natalie Skead (UWA), Julian Webb (Melbourne); from HK, Wilson Chow and Michael Ng (HKU) and of course from CUHK Michael Lower, Steve Gallagher, Vivian Chen, Queenie Lai, Mitch Stocks and the rest.  My thanks to Michael and his team for a great conference.  If you missed it, don’t miss the next one in two years’ time.

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Paul Maharg

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