Presentation to Denver University Law School on regulation.

1. The wrong story: legal education, ethics and
shared space regulation
Professor Paul Maharg
paulmaharg.com/slides

2. 1. What does LETR say about ethics & legal education?
preview
Adopt fresh approaches that can improve regulation and the quality of legal education - focus
on experiential learning.
2. Re-design ethical learning 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 the research on ethics & legal education generally
Many gaps; almost no organized research programmes; insufficient historical understanding of
sub-disciplines and practices; little shared understanding across the field
4. Encourage new ways of understanding how ethics can be understood and practised

3. 1. What does LETR say about
ethics & legal education?

4. some definitions…
• Outcomes-focused regulation:
– Derived from general principles of good regulation
– Eight regulatory objectives specified by s.1, LSA 2007 (see chapter
two, LETR Literature Review)
– Key recommendation of the Clementi Review (2004)
• Risk-based regulation:
– The adoption of regulatory strategies based on ‘an evidence-based
means of targeting the use of resources and of prioritizing attention to
the highest risks in accordance with a transparent, systematic, and
defensible framework’ (Black & Baldwin, 2010, 181)

5. LETR remit
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 especially Literature Review, chapter 3, ‘Legal education and conduct of business requirements’,
http://letr.org.uk/wp-content/uploads/LR-chapter-3.pdf

6. centrality of professional ethics & legal values
‘Ethics’ mentioned 145 times in the Report, on 71/350 pages:
‘The centrality of professional ethics and legal values to practice
across the regulated workforce is one of the clearest conclusions to be
drawn from the LETR research data, and yet the treatment of professional
conduct, ethics and ‘professionalism’ is of variable quality across the
regulated professions. There was general support in the research data for
all authorised persons receiving some education in legal values and
regulators are encouraged to consider developing a broad approach to
this subject rather than a limited focus on conduct rules or principles.’
Executive Summary, p.xiii

7. key recommendations on ethics
‘Recommendation 6
LSET schemes should include appropriate learning outcomes in respect of
professional ethics, legal research, and the demonstration of a range of
written and oral communication skills.
Recommendation 7
The learning outcomes at initial stages of LSET should include reference (as
appropriate to the individual practitioner’s role) to an understanding of the
relationship between morality and law, the values underpinning the legal
system, and the role of lawyers in relation to those values’.
Executive Summary, p. xiv

8. ethics in context
‘The research data make no clear-cut case for either extending or reducing
the existing Foundation subjects; in particular there is no consensus to
include professional ethics as a discrete Foundation subject. At the same
time, in the interests of transparency and consistency for students and
employers alike, there is a case for providing some additional content
prescription and guidance on the balance between the Foundation
subjects.’
Executive Summary, p.xiv

9. evidence…?
• Professional ethics one of the commonest
suggestions for addition to the Foundation
subjects
• Is the priority accorded ethics reflective of
the shift to outcomes-focused regulation
and risk-based regulation?
• Ethics is seen as a critical defining feature
of professional service
• Commercialisation viewed as a threat to
the profession’s ‘moral compass’ (solicitor)

10. OFR & ethics education – how?
• OFR will require management skills & processes in
entities to cope with risk-based regulation – especially in
context of ABSs
• Some (eg Boon) argue for ‘situational ethics’ approach –
different from a ‘rules-based’ system

11. 2. Re-design regulation of ethics in
legal education

12. tools for analysis of regulation:
modalities of control
Colin Scott’s approach:
•‘a more fruitful approach [than pure innovation] 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).

13. Norms Feedback Behavioural
modification
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
Ostracization
Villages, Clubs Professional
Ordering
Design Fixed with
Architecture
Lack of
Response
Physical
Inhibition
Parking
Bollards
Software
Code
Modalities of control (Murray & Scott 2002)

14. 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/1p8fC3u
The Art & Science of Shared
Streets, http://bit.ly/1p8fr8r
See also Hamilton-Baillie
(2008).

15. 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
• Regulators as democratic designers, taking their place within a Deweyan
construct of democratic institutions

16. LETR 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).

17. 3. Map and improve ethics and
legal education research

18. 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)

19. 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
4. Provide meta-reviews and systematic
summaries of research, where
appropriate; literature guides, etc

20. current initiatives…
• It’s open source and
free
• It’s an international
collaboration
• It combines both
theory and practice
• It’s open to
interdisciplinarity

21. how might professional bodies
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.

22. example: longitudinal research
• Do we do the same for
ethics?
• If not, why not?
• What might a longitudinal
ethics project look like?
http://bit.ly/18WavXV

23. longitudinal research in education
• Do we do the same for
ethics?
• If not, why not?
• What might a longitudinal
ethics project look like?
• HighScope Educational
Research Foundation
methodology?
• HighScope method used to
develop skills of conflict
resolution in pre-schoolers
(children aged 18 months –
six years).
http://bit.ly/1qjTnEk

24. 4. Encourage new approaches to
ethics education

25. example 1: curriculum design
• Key question: ethics education for whom, by whom, when?
• New foundational designs such as JD or LLB + PBL + online…?
• We have a very sparse literature on f2f PBL (eg some major
studies on Maastricht, none on York)
• Curriculum needs re-designed around innovative embedding
of ethics projects
• Digital technologies need re-designed to facilitate ethics
learning online

26. example 2
Three projects for student-centred learning in the ethics of
access to law and family mediation:
1.Sorting out separation – UK government-funded initiative
2.Families Change – Justice Education Society of British
Columbia
3.Rechtwijzer.nl – Dutch Legal Aid Board & University of Tilburg

27. project 1
• Largely advice sheets, videos,
calculators
• How might your students get
involved in this?
• What would they learn about
ethics by being involved?
• How can they put that experience
to use in their careers?

28. project 2
• Largely advice sheets, videos,
• Also includes ‘Changeville’, an
interactive game for children 5-12
years old, offering emotional
support and tools, including a list
of rights for older children
• How might your students get
involved in this?
• What would they learn about
ethics by being involved?
• How can they put that experience
to use in their careers?

29. project 3: rechtwijzer.nl
• Contains advice on separation &
divorce
• Integrates f2f service with online
information
• Claims to have an ‘interactive
service’
• How might your students get
involved in this?
• What would they learn about
ethics by being involved?
• How can they put that experience
to use in their careers?

30. references
Hamilton-Baillie, B. (2008). Shared space: reconciling people, places and traffic.
Built 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.

31. Email:paul.maharg@anu.edu.au
Web: paulmaharg.com
Slides: paulmaharg.com/slides