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Shared space: regulation, technology and legal education in a global context …

Shared space: regulation, technology and legal education in a global context

Professor Paul Maharg
Australian National University College of Law

Abstract
The LETR Report on legal services education and training (LSET), published in June 2013, is the most recent of a series of reports dealing with legal education in England and Wales. Many of these reports do not deal directly with technology theory and use in legal education, though it is the case that the use of technology has increased substantially in recent decades. This is a pattern that is evident in reports in most other common law jurisdictions. LETR does have a position on technology use and theory, however, and it positions itself in this regard against other reports in England and Wales, and those from other jurisdictions, notably those in the USA.

In this paper I shall set out that position and contrast it with regulatory statements on technology and legal education in England, Australia and the USA. Based on a review not just of recent practical technological implementations but of the theoretical educational and regulatory literatures, I shall argue that the concept of ‘shared space’ outlined in the Report is a valuable tool for the development of technology in education and for the direction of educational theory, but most of all for the development of regulation of technology in legal education at every level.

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  • 1. Shared space: regulation, technology and legal education in a global context Professor Paul Maharg Australian National University slides @ http://paulmaharg.com/slides Miranda: O braue new world That has such people in’t. Prospero: ‘Tis new to thee. The Tempest, V.i.215-17
  • 2. Professor Paul Maharg 2 1. What does LETR say about technology & legal education? Adopt fresh approaches that can improve regulation and the quality of legal education - focus on experiential learning. 2. Re-design regulation of technology in legal education Shape the future with regulators, redesign relations between academy & profession, recast curriculum design, learn & implement from other disciplines, professions, jurisdictions. 3. Map and improve technology & legal educational research Many gaps; almost no organized research programmes; insufficient historical understanding of sub-disciplines and practices; little shared understanding across the field. preview
  • 3. Professor Paul Maharg 3 1. What does LETR say about technology & legal education?
  • 4. Professor Paul Maharg 4 Legal Education & Training Review (LETR)1LETR on tech & legal ed
  • 5. Professor Paul Maharg 5 literature review1LETR on tech & legal ed
  • 6. Professor Paul Maharg 6 Address the following issues: 1. What are the skills/knowledge/experience currently required by the legal services sector? 2. What skills/knowledge/experience will be required by the legal services sector in 2020? 3. What kind of legal education and training (LET) system(s) will deliver the regulatory objectives of the Legal Services Act 2007? 4. What kind of LET system(s) will promote flexibility, social mobility and diversity? 5. What will be required to ensure the responsiveness of the LET system to emerging needs? 6. What scope is there to move towards sector-wide outcomes/activity- based regulation? 7. What need is there (if any) for extension of regulation to currently non-regulated groups? LETR remit1LETR on tech & legal ed
  • 7. Professor Paul Maharg 7 1. What are the skills/knowledge/experience currently required by the legal services sector? 2. What skills/knowledge/experience will be required by the legal services sector in 2020? 3. What kind of legal education and training (LET) system(s) will deliver the regulatory objectives of the Legal Services Act 2007? 4. What kind of LET system(s) will promote flexibility, social mobility and diversity? 5. What will be required to ensure the responsiveness of the LET system to emerging needs? 6. What scope is there to move towards sector-wide outcomes/activity- based regulation? 7. What need is there (if any) for extension of regulation to currently non-regulated groups? See esp Lit Rev, chapter 3, ‘Legal education and conduct of business requirements’, http://letr.org.uk/wp-content/uploads/LR-chapter-3.pdf LETR remit1LETR on tech & legal ed
  • 8. Professor Paul Maharg 8 (p.332)
  • 9. Professor Paul Maharg 9 skills comparison across time LETR on tech & legal ed1
  • 10. Professor Paul Maharg 10 ‘Susskind drew on four interviews conducted specifically for LETR, a series of interviews across the profession in which he raised LETR, as well as his own on-going research and consultancy activities. These included two extended interviews with experts about professions outside law, six confidential discussions with leading practitioners (including General Counsel and senior partners in major firms) and discussions with academics and students at three seminars (one in England, one in Holland, and one in the US). He also drew on his ongoing collaborative research with Daniel Susskind and 50 face-to-face, interviews carried out last year across the professions, and on insights gained during 2012 from five client consulting projects (three leading law firms and two in-house legal departments).’ Appendices, 1.24 Susskind, Provocations & Perspectives, Briefing Paper 3/2012 LETR on tech & legal ed1
  • 11. Professor Paul Maharg 11 LETR & technology in liberalised legal services  ‘regulation and technology, as the scenarios suggest, both have the potential to transform the demand side of the market’ (para 3.6)  Use of ‘technology to enhance communication, information access, data management, and workflow, particularly in conjunction with outsourcing and commoditised practices’ (para 3.74)  Automation vs innovation:  ‘The capacity of technology to enable things to be done differently rather than just more quickly, easily and/or thoroughly appears to be underestimated by respondents.’ (para 3.88) 1LETR on tech & legal ed
  • 12. Professor Paul Maharg 12 ‘Technology therefore has longer term implications for the type of legal roles in the marketplace and may contribute to a reduction in the number of traditional lawyers. Some of this number may be absorbed into the kinds of new roles Susskind (2010, 2012) describes for legal information technologists, knowledge managers and legal process analysts. Such roles would also require new technical skills, and a greater understanding of the potential for ICT to innovate, not just automate.’ (para 3.96) LETR & technology in liberalised legal services1LETR on tech & legal ed
  • 13. Professor Paul Maharg 13 technology in legal education  ‘Technology, particularly through increasingly sophisticated forms of blended and e-learning also has the potential to transform the delivery of LSET. One of the questions for the LETR is therefore, how might these technologies connect? In other words, what can those who are planning LSET learn from the use of technology in practice?’ (para 3.86) 1LETR on tech & legal ed
  • 14. Professor Paul Maharg 14 ‘The emergence of new online providers, like LegalZoom and Rocket Lawyer, albeit supported by a human interface, is already indicative of the ways in which the market may be moving. Such online providers may increasingly challenge and substitute for traditional f2f providers, particularly as the technology moves from ‘search engines’ to far more powerful and intuitive ‘discovery platforms’.’ (para 3.94) technology in legal education1LETR on tech & legal ed
  • 15. Professor Paul Maharg 15 commercial & social awareness ‘There is also a case for including a greater understanding of the transformative potential of information technology under this heading. It is not sufficient to ensure that trainees or prospective trainees understand how technology is used to facilitate current work tasks without also helping them to understand how it can radically change, and is changing, their business models and the way clients may access and use legal information. In this context Richard Susskind’s (2012) suggestion that law schools should include an optional course on developments in legal services deserves to be taken seriously.’ (para 4.70) 1LETR on tech & legal ed
  • 16. Professor Paul Maharg 16 2. Re-design regulation of technology in legal education
  • 17. Professor Paul Maharg 17 how not to regulate… 1. Debate around ABA Standard 306 (now 311), restricting distance learning vis-à-vis classroom time: Standard 311. DISTANCE LEARNING Distance education is an educational process in which more than one-third of the instruction of the course is characterized by: (1) the separation in time or place, or both, between instructor and student; and (2) the use of technology to deliver instruction. 2. But now see: 1. ABA Task Force Report 2. Mitchell Law School Variation, under Standard 802 (http://bit.ly/1kvD6uR): Interpretation 802-1(b) states the Council may grant a variance for an experimental program if that program is well-designed and the benefits of the experimental program outweigh its risks. redesign relations2
  • 18. Professor Paul Maharg 18 regulatory alternatives? ‘While distance education can be analogized to classroom time, it would seem that a better approach is to think about what we want education to accomplish – knowledge of subjects needed to be a lawyer, inculcation of skills and values necessary to be a good lawyer, and some experiential component – then set out how any program proves that it does so.’ Rakes, W.R. (2007). From the Chairperson. Syllabus. American Bar Association section of Legal Education and Admissions to the Bar, 38(2), 2-3. redesign relations2
  • 19. Professor Paul Maharg 19 Colin Scott’s approach: ‘a more fruitful approach would be to seek to understand where the capacities lie within the existing regimes, and perhaps to strengthen those which appear to pull in the right direction and seek to inhibit those that pull in the wrong way’ ‘meta-review’: ‘all social and economic spheres in which governments or others might have an interest in controlling already have within mechanisms of steering – whether through hierarchy, competition, community, design or some combination thereof’ (2008, 27). modalities of controlredesign relations2
  • 20. Professor Paul Maharg 20 Norms Feedback Behaviour- al modifi- cation Example Variant Hierarchical Legal Rules Monitoring Powers/Dutie s Legal Sanctions Classic Agency Model Contractual Rule-making & Enforcement Competition Price / Quality Ratio Outcomes of Competition Striving to Perform Better Markets Promotion Systems Community Social Norms Social Observation Social Sanctions, eg Ostrac- ization Villages, Clubs Professional Ordering Design Fixed with Architect- ure Lack of Response Physical Inhibition Parking Bollards Software Code Modalities of control (Murray & Scott 2002)
  • 21. Professor Paul Maharg 21 regulatory alternatives? Shared spaces concept in traffic zones:  Redistributes risk among road users  Treats road users as responsible, imaginative, human  Holds that environment is a stronger influence on behaviour than formal rules & legislation. ‘All those signs are saying to cars, “this is your space, and we have organized your behavior so that as long as you behave this way, nothing can happen to you”. That is the wrong story’. Hans Monderman, http://bit.ly/1p8fC3uThe Art & Science of Shared Streets, http://bit.ly/1p8fr8r See also Hamilton-Baillie (2008). redesign relations2
  • 22. Professor Paul Maharg 22 participative regulation  Portrait of the regulator as:  Not QA but QE – Quality Enhancer, to focus on culture shifts towards innovation, imagination, change for a democratic society  A hub of creativity, shared research, shared practices & guardian of debate around that hub  Initiating cycles of funding, research, feedback, feedforward  Archive of ed tech memory in the discipline  Founder of interdisciplinary, inter-professional trading zones  Regulator as democratic designer redesign relations2
  • 23. Professor Paul Maharg 23 LETR recommendation Recommendation 25
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). redesign relations2
  • 24. Professor Paul Maharg 24 3. Map and improve technology and legal educational research
  • 25. Professor Paul Maharg 25 future research needs? 1. Map the field & create taxonomies for research data 3improve research 2. Organise systematic data collection on law school stats across entry/exit points, across jurisdictions (eg using Big Data Project methods)
  • 26. Professor Paul Maharg 26 future research needs? 3. Focus on learning, not NSS league tables – see US LSSSE… and include longitudinal research data, not just snapshots of place & time 3improve research 4. Provide meta-reviews and systematic summaries of research, where appropriate; literature guides
  • 27. Professor Paul Maharg 27 how might BILETA contribute to this? 1. Targeted funding for research initiatives, eg Cochrane Collaboration type of initiative 2. Funding & admin support to start-up and analyze innovation – eg PBL, public education in law, legal informatics, data visualization, etc 3. Financial & other support to enable round table meetings with regulators and comparative work with other jurisdictions – globally 4. Creation and maintenance of a digital hub. 3improve research
  • 28. Professor Paul Maharg 28 references Hamilton-Baillie, B. (2008). Shared space: reconciling people, places and traffic. Build Environment, 34, 2, 161-81. Legal Education & Training Review Report (2013). Available at: http://letr.org.uk Monderman, H. (n.d.) http://www.pps.org/reference/hans-monderman/ Murray, A., Scott, C. (2002). Controlling the new media: hybrid responses to new forms of power. Modern Law Review, 65, 4, 491-516. Scott, C. (2008) Regulating Everything. UCD Geary Institute Discussion Paper Series, Inaugural Lecture, 26 February.
  • 29. Professor Paul Maharg 29 Email: paul.maharg@anu.edu.au Web: paulmaharg.com

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