The wrong story:
regulation, innovation and research
in the future of legal education
Professor Paul Maharg
Australian National University
College of Law
http://paulmaharg.com/slides/

preview
1. Avoid technification
Regulation easily erodes into technification of regulation: we
need to resist that.
2. Renew learning spaces
Adopt fresh approaches that can improve regulation and the
quality of legal education - focus on experiential learning.
3. Re-design relations
Shape the future with regulators, redesign relations between
academy & profession, recast curriculum design, learn &
implement from other disciplines, professions, jurisdictions.
4. Map and improve legal educational research
Many gaps; almost no organized research programmes;
insufficient historical understanding of sub-disciplines and
practices; little shared understanding across the field.
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2. Renew learning spaces
Adopt fresh approaches that can improve
regulation and the quality of legal education focus on experiential learning.
3

2
renew
learning
spaces
Legal Education & Training Review
(LETR)
4

2
renew
learning
spaces
remit
Address the following issues:
1.
2.
3.
4.
5.
6.
7.
What are the skills/knowledge/experience currently required by the
legal services sector?
What skills/knowledge/experience will be required by the legal
services sector in 2020?
What kind of legal education and training (LET) system(s) will deliver
the regulatory objectives of the Legal Services Act 2007?
What kind of LET system(s) will promote flexibility, social mobility
and diversity?
What will be required to ensure the responsiveness of the LET system
to emerging needs?
What scope is there to move towards sector-wide outcomes/activitybased regulation?
What need is there (if any) for extension of regulation to currently
non-regulated groups?
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2
1.
2.
3.
4.
5.
6.
7.
renew
learning
spaces
remit
What are the skills/knowledge/experience currently required by the
legal services sector?
What skills/knowledge/experience will be required by the legal
services sector in 2020?
What kind of legal education and training (LET) system(s) will deliver
the regulatory objectives of the Legal Services Act 2007?
What kind of LET system(s) will promote flexibility, social mobility
and diversity?
What will be required to ensure the responsiveness of the LET
system to emerging needs?
What scope is there to move towards sector-wide outcomes/activitybased regulation?
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
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2
renew
learning
spaces
eg technology / curriculum innovations required
1. Information management
Better, more powerful and social platforms, enabling visualisation
& sharing of legal data.
2. Managing voice, register and genre on digital platforms
Focus on a post-digital Ciceronian rhetoric
3. Make legal research and problem-based learning &
experiential learning meaningful
eg by use of sims, clinic, PBL, breaching the ‘fourth wall’ of the
law school, and many more
4. Socialising processes in relational spaces
Create a zone, where students can discuss and reflect on their
work, try out identities that are at once professional & personal,
make mistakes or learn from others’ mistakes, and learn how to
communicate consistently & accurately with colleagues, in any
register.
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Transactional learning, example 1
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https://wiki.mozilla.org/Learning/WebLiteracyStandard
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[link to: voice-over on VOS by Anneka Ferguson, Legal
Workshop, ANU]
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Transactional learning, example 2
Transactional learning @ ANU

3. Re-design relations
Shape the future with regulators, redesign relations
between academy & profession, recast curriculum
design, learn & implement from other disciplines,
professions, jurisdictions.
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3
redesign
relations
conceptual change in law school identity
‘Wisdom is not the only virtue that is having a poor time of
it in the modern university. Patience, humility, generosity,
perseverance, thoroughness, carefulness, quietness: these
might once have been felt to be signs of a strength of
character. No longer. In an age of self-promotion, selfpresentation, visibility, efficiency, work-rate, personal
performance indicators and sheer competitiveness, character
traits such as these come to be seen as signs of personal
weakness.’
Barnett, 1994, 151–2
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3
redesign
relations
conceptual change in law school identity
‘Now is your time to begin Practices and lay the Foundation
of habits that may be of use to you in every Condition and in
every Profession at least that is founded on a literary or a
Liberal Education. Sapere and Fari quae sentiat are the great
Objects of Literary Education and of Study. ... mere
knowledge however important is far from being the only or
most important attainment of study.
The habits of Justice, Candour, Benevolence, and a
Courageous Spirit are the first objects of Philosophy, the
constituents of happiness and of personal honour, and the
first Qualifications for human Society and for Active Life.’
Adam Ferguson, Lectures, 1775-6, MSS, University of Edinburgh
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3
redesign
relations
regulatory relationships
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).
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Norms
Feedback
Behavioural modification
Example
Hierarchical
Legal Rules
Monitoring
Powers/Dutie
s
Legal
Sanctions
Classic
Contractual
Agency Model Rule-making
&
Enforcement
Competition
Price /
Quality
Ratio
Outcomes of
Competition
Striving to
Perform
Better
Markets
Community
Social
Norms
Social
Observation
Social
Villages,
Sanctions, eg Clubs
Ostracization
Professional
Ordering
Design
Fixed with
Architecture
Lack of
Response
Physical
Inhibition
Software
Code
Parking
Bollards
Variant
Promotion
Systems
Modalities of control (Murray & Scott 2002)
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3
redesign
relations
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 behaviour so that as long as you behave this way,
nothing can happen to you.”
That is the wrong story.’
Hans Monderman,
http://www.pps.org/reference/hans-monderman/
Drachten, Laweiplein, Netherlands –
Thanx to Fietsberaad
,http://bit.ly/1dOwpRA
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3
redesign
relations
participative regulation
 Portrait of the regulator as democratic designer:





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, for cross-disciplinary
learning
[link to:
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http://www.youtube.com/watch?v=Hz2HGLbA9Nw]

3
LETR recommendation
redesign
relations
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).
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4. Map and improve legal educational research
Many gaps; almost no organized research programmes;
insufficient historical understanding of sub-disciplines and
practices; little shared understanding across the field.
19

4
improve
research
future research needs?
1. Map the field & create taxonomies
for research data
2. Organise systematic data
collection on law school stats
across entry/exit points, across
jurisdictions (eg using Big Data
Project methods)
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4
improve
research
future research needs?
3. Focus on learning,
not NSS league tables – see US
LSSSE…
4. Provide meta-reviews
and systematic summaries
of research, where
appropriate
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4
improve
research
how might HEA 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.
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references
Barnett, R. (1994). The Limits of Competence. Knowledge, Higher Education and
Society, Buckingham: Open University Press.
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.
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Email:
Web:
paul.maharg@anu.edu.au
paulmaharg.com
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