Complicitous and contestatory - the hermeneutics of legal education

Paul Maharg
Pressing Problems in the Law Revisited
June 2019
http://paulmaharg.com/slides
‘Complicitous and contestatory’: The
hermeneutics of legal education

preview
1. The hermeneutic base to legal education
2. Case study 1: Scots legal education – the enlightenment shift
3. Theoretical arrays:
1. Transactional learning
2. Extended CHAT theory
3. Diegetic learning
4. Case study 2: Simulated Clients
5. Implications for future law school educational practices
Slides available at: http://paulmaharg.com/slides 1
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

2
Edinburgh University online teaching manifesto
https://onlineteachingmanifesto.wordpress.com/

1. The hermeneutic base to legal education
‘Aesthetics matter: interface design shapes learning’
Edinburgh University School of Education,

hermeneutics?
• ‘our understanding of the nature of texts and how we interpret
and use them’ (Jasper 2004, 1)
• Eg ‘it is pretty clear that the author of Matthew’s Gospel is
reading and interpreting the Gospel of Mark and adapting it for
his own theological purposes’ (ibid, 2)
• Eg more widely, how writers interpret each other. Yeats’ relation
to Shelley, and Heaney’s relation to Yeats’ political poetry, and
use of ancient & contemporary Irish history. Complicitous?
Contestatory? Or take a clinamen, a creative swerve around the
powerful predecessor (Harold Bloom)?
• Hermeneutics ‘is about the most fundamental ways in which we
perceive the world, think and understand […] and legitimate the
claims we make to know the truth’ (Jasper 2004, 3)
• There are no innocent readings: all are motivated, replete with
intentionalities, memories, expectations, desires.
• It is a set of practices and understandings that are bound by
cultural and historical context.
4

what are the hermeneutics of legal
education?
• How we read our educations, how we understand different
traditions of legal education against each other
• How in a degree curriculum, a syllabus, a
lecture/seminar/workshop we read the parts up to the whole
and the whole down to the parts
• How academic degree learnings integrate or not with
professional learnings
• How we compose in report genres for regulatory bodies; how we
REF-write our legal education research, how we disorganize it for
ourselves and others
• How we interpret affect, body, rationality, gender, spirit,
indigeneity, the meaning of land and species, cultural narratives,
sociolegal, anthropological, historiographical research in our
constructions of justice, law & learning
5

eg the hermeneutics of assessment
‘Assessment is an act of interpretation, not just
measurement’
6

Technical model of learning Professional model of learning
The only learning worth evaluating can be seen as
behavioural changes.
Worthwhile learning is often personal, obscure and private.
Only some learnings appear as behavioural changes.
Everything that exists, exists in some quantity, and therefore
can be counted and measured.
Many things that exist are not externally verifiable.
The teacher-selected goals are the important ones, therefore
the evaluated ones.
Both teacher- and student-selected goals are important, as is
learning attained without goals.
Comparing behaviours to some objectively held criteria or
comparing to the progress of other students determines how
well something is learned.
Educative learning cannot be rated on a scale. Most learning
cannot be compared either to some "objectively" conceived
criteria or to the progress of other students.
The teacher-student relationship is hierarchical and the
teachers assign and rank students by how well they have met
specific objectives.
The teacher-student relationship is egalitarian. Learning
requires less of a process of trusting grades and more to
exploration among expert and novice learners, and thrives on
constructive criticism.
The quality of rigour of a course can be determined by how
well it helps its students meet the discipline requirements as
reflected by test scores, attainment of behavioural objectives,
and accreditation requirements, since these reflect the
agreed-upon discipline content.
well it helps students collect paradigm experiences, develop
insights, see patterns, find meanings in ideas and experiences,
explore creative modes of enquiry, examine assumptions,
form values and ethics in keeping with the moral ideal of the
caring scholar-clinician, respond to social needs, live fully and
advance the profession.
Bevis, E.O., Watson, J. (1990) Towards a Caring Curriculum: A New Pedagogy for Nursing, National League for Nursing, New York;
cited Maharg, P., Owen, M. (2007). Simulations, learning and the metaverse: changing cultures in legal education, Journal of
Information, Law, Technology. Special Issue on Law, Education, Technology, 1,
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2007_1/maharg_owen

Technical model of learning Phenomenological model of learning
The only learning worth evaluating can be seen as
behavioural changes.
Worthwhile learning is often personal, obscure and private.
Only some learning appear as behavioural changes.
Everything that exists, exists in some quantity, and therefore
can be counted and measured.
Many things that exist are not externally verifiable.
The teacher-selected goals are the important ones, therefore
the evaluated ones.
Both teacher- and student-selected goals are important, as is
learning attained without goals.
Comparing behaviours to some objectively held criteria or
comparing to the progress of other students determines how
well something is learned.
Educative learning cannot be rated on a scale. Most learning
cannot be compared either to some "objectively" conceived
criteria or to the progress of other students.
The teacher-student relationship is hierarchical and the
teachers assign and rank students by how well they have met
specific objectives.
The teacher-student relationship is egalitarian. Learning
requires less of a process of trusting grades and more to
exploration among expert and novice learners, and thrives on
constructive criticism.
well it helps its students meet the discipline requirements as
reflected by test scores, attainment of behavioural objectives,
and accreditation requirements, since these reflect the
agreed-upon discipline content.
well it helps students collect paradigm experiences, develop
insights, see patterns, find meanings in ideas and experiences,
explore creative modes of enquiry, examine assumptions,
form values and ethics in keeping with the moral ideal of the
caring scholar-clinician, respond to social needs, live fully and
advance the profession.
Bevis, E.O., Watson, J. (1990) Towards a Caring Curriculum: A New Pedagogy for Nursing, National League for Nursing, New York;
cited Maharg, P., Owen, M. (2007). Simulations, learning and the metaverse: changing cultures in legal education, Journal of
Information, Law, Technology. Special Issue on Law, Education, Technology, 1,
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2007_1/maharg_owen

causation & context in assessment
If learning … then assessment is often…
1 is teacher-focused teacher-centred, not learner-centred.
2 follows a transmission model
of education
focused only on what’s supposed to have arrived /
been delivered
3 focuses only on the individual individual, alienating, where collaborative, peer-
review or self-review can’t take place
4 consists of monolithic &
substantive law content
lacking interdisciplinarity, with little assessment of
skills, values, attitudes as well as critical knowledge
5 sits in strongly contested
relations between practice &
academy
problematic, because content & forms of academic
assessments can’t transfer well to professional
learning and formation of identity

are law schools complicitous?
contestatory?
‘Of particular interest to [sociolinguists] is Gidden's insistence that
alongside political, economic and legal institutions there are
linguistic and rhetorical rules and resources which are also
institutions. Among these he instances ‘symbolic orders, or modes of
discourse, and patterns of communication’. […] My attempt to
address some of the wider issues […is…] both complicitous and
contestatory’.
Swales, John M. (1993). Genre and engagement. Revue Belge de Philologie et
D’Histoire, 71: 687-698. Available at: https://core.ac.uk/download/pdf/3146180.pdf
• We can support neoliberalist tendencies in legal education or we
can educate ethically and transformationally. But we do both.
• We can suppress student agency or liberate it. We do both.
• We can ignore / suppress traditions, cultures, or enhance &
(re-)use them. Do we do both?
10

Scots legal education – the Enlightenment shift
‘Online teaching need not be complicit with the
instrumentalization of education’

signature pedagogies (Lee Shulman)
Surface
structure
• Observable,
behavioural
features
Tacit structure
• Values and
dispositions that
the behaviour
implicitly models
Deep structure
• Underlying
intentions,
rationale or
theory that the
behaviour models
Shadow
structure
• The absent
pedagogy that is,
or is only weakly,
engaged
Sullivan, W.M., Colby, A., Wegner, J.W.,
Bond, L., Shulman, L.S. (2007) Educating
Lawyers. Preparation for the Profession of
Law, Jossey-Bass, p. 24

Three attempts to create new forms of
transformational learning
‘We should attend to the materialities of digital education.
The social isn’t the whole story’

1. transactional learning
active learning
through performance in authentic transactions
involving reflection in & on learning,
deep collaborative learning, and
holistic or process learning,
with relevant professional assessment
that includes ethical standards
(Maharg 2007)
SIMulated Professional Learning Environment (SIMPLE) enables
students to engage in online simulations of professional practice. Its
special pedagogy is based on transactional learning.
14

2. extended CHAT framework
(Engeström)
15

3. diegetic learning
• Diegesis: narrative or plot in literature; used in
film studies to depict the world inside the film
• Also describes the story or immersive world of
a game or sim, and focuses on:
– Presentation of objects & environments
– Levels of immersion, fidelity, liminality,
interactivity, pacing, fore/background, POV,
use of time.
16

4. Case study 2: Simulated Clients
‘Online courses are prone to cultures of surveillance. Visibility
is a pedagogic and ethical issue ’

our hypothesis back in 2005
With proper training and carefully designed assessment
procedures, Standardised or Simulated Clients (SCs)
could assess important aspects of client interviewing
with validity and reliability comparable to assessment
by law teachers.

aims
• develop a practical and cost-effective method to
assess the effectiveness of lawyer-client
communication which correlates assessment with
the degree of client satisfaction & confidence.
• ie answer the following questions…
1.Is our current system of teaching and assessing
interviewing skills sufficiently reliable and valid?
2.Can the Simulated Patient method be translated
successfully to the legal domain?
3.Is the method of Simulated Client training and
assessment more reliable, valid and cost-effective
than the current system at the Glasgow Graduate
School of Law (GGSL)?

results from the GGSL pilot
Questions Results
1 Is our current system of teaching and assessing interviewing skills
sufficiently
1. reliable?
2. valid?
1. No
2. No
2 Can the Simulated Patient method be translated successfully to
the legal domain? Yes
3 Is the method of Simulated Client training and assessment more
1. reliable,
2. valid
3. cost-effective
than the current system?
1. Yes
2. Yes
3. Yes

independent studies…
• ‘In focus groups, members of the profession
and alumni said they believe that students
who graduate from the program [at UNH]
are a step ahead of new law school graduates;
• When evaluated based on simulated client interviews,
students in the program outperformed lawyers who had been
admitted to practice within the last two years; and
• The only significant predictor of simulated client interview
performance was whether or not the interviewer participated
in the Daniel Webster Scholar Honors Program. Neither LSAT
scores nor class rank was significantly predictive of
interview performance’ (my emphasis) 21

what changed for us…?
• We made what the client thinks important in the most
salient way for the student: an assessment where most of
the grade is given by the client
• We did not conclude that all aspects of client interviewing
can be assessed by SCs
– We focus the assessment on aspects we believe can be
accurately evaluated by non-lawyers
– We focus the assessment on initial interview (which has
been extended at one centre to an advice-giving second
interview)
• This has changed the way we enable students, trainees and
lawyers to learn interviewing & client-facing ethical
behaviour

eg assessment criterion 2 of eight
2. I felt the student lawyer listened to me.
This item is designed to assess the degree to which the lawyer can listen
carefully to you. These criteria focus especially on the early part of the
meeting when the client should be encouraged to tell their story and
concerns in their own words. This entails active listening – where it is
necessary for the interview structure or the lawyer’s understanding of
your narrative. The lawyer will not interrupt, cut you off, talk over you or
rush you in conversation. The lawyer reacts to your responses
appropriately. The lawyer may take notes where appropriate, but if the
lawyer does so, the lawyer should not lose much eye contact with you. To
some extent in this item we are concerned with what the lawyer does not
do that facilitates the interview.
23

1 2 3 4 5
Lawyer prevents
you from talking
by interrupting,
cutting off, talking
over, rushing you.
Takes over the
conversation
prematurely as if
the lawyer
already knows all
the answers.
Lawyer limits
your opportunity
to talk by
interrupting,
cutting you off,
etc.
You are allowed
to answer specific
questions but are
not allowed to
expand on topics.
Lawyer rarely
interrupts or cuts
off or rushes you.
The lawyer reacts
to your responses
appropriately in
order to allow
you to tell your
story. More
interested in
notes taken than
in eye-contact
with you.
The lawyer is
clearly listening
closely to you.
If the lawyer
interrupts, it is
only to assist you
in telling the
story more
effectively.
Lawyer provides
opportunities for
you to lead the
discussion where
appropriate.
Good eye contact
and non-verbal
clues.
The lawyer is an
excellent listener
and speaks only
when it is clearly
helpful to you
telling your story.
Lawyer uses
silence and other
non-verbal
facilitators to give
you an
opportunity to
expand.
Excellent eye
contact and non-
verbal cues.
24

1 2 3 4 5
Lawyer prevents
you from talking
by interrupting,
cutting off, talking
over, rushing you.
Takes over the
conversation
prematurely as if
the lawyer
already knows all
the answers.
Lawyer limits
your opportunity
to talk by
interrupting,
cutting you off,
etc.
You are allowed
to answer
specific questions
but are not
allowed to
expand on topics.
Lawyer rarely
interrupts or cuts
off or rushes you.
The lawyer reacts
to your
responses
appropriately in
order to allow
you to tell your
story. More
interested in
notes taken than
in eye-contact
with you.
The lawyer is
clearly listening
closely to you.
If the lawyer
interrupts, it is
only to assist you
in telling the
story more
effectively.
Lawyer provides
opportunities for
you to lead the
discussion where
appropriate.
Good eye contact
and non-verbal
clues.
The lawyer is an
excellent listener
and speaks only
when it is clearly
helpful to your
telling your story.
Lawyer uses
silence and other
non-verbal
facilitators to
give you an
opportunity to
expand.
Excellent eye
contact and non-
verbal cues.
25

26

current status of SCI
University of Strathclyde Law School WS (Writers to the Signet) Society,
Edinburgh
University of New Hampshire Law School The Australian National University
College of Law
Northumbria University Law School Kwansei Gakuin University Law School
(Osaka)
SRA – Qualifying Lawyer Transfer
Scheme
Law Society of Ireland
Hong Kong University Faculty of Law Adelaide University Law School
The Chinese University of Hong Kong
Faculty of Law
National Centre for Skills in Social Care,
London
Nottingham Trent University Law School Osgoode Hall Law School

SCs: people as co-producers, co-designers
The SC approach challenges the hermeneutics of legal education:
1. Curriculum methods
2. Ethics of the client encounter
3. The cognitive poverty of conventional law school assessment
4. Law school as a self-regarding, monolithic construct
5. Law school categories of employment
6. The curricular isolation of clinic within law schools
7. Hollowed-out skills rhetoric
8. Conventional forms of regulation by regulatory bodies
9. The role of regulator, as encourager of innovation & radical reform…?
10.Disciplinary boundaries – what about a SC Unit that’s interdisciplinary?
11.Local jurisdictional practices: how might such a project work globally?

SCs @ Osgoode
• Last year, SCs were recruited, trained
and used with 290 students in Shelley
Kierstead’s first year course, Legal Method
• Excellent interim feedback:
– 92.6% thought the interview experience authentic or very authentic.
– 95.5% thought the clients realistic or very realistic in conveying their
concerns.
– 93.5% thought the experience useful or very useful in preparing them
for real client interviews.
– 97.6% thought that the use of simulated clients was more beneficial to
their learning than practising only with other students

representative comments…
In your judgment was this a worthwhile learning opportunity?
• One of my favourite and most worthwhile opportunities all year
• Great opportunity! […] good low stress experience
• Yes! I loved the feedback that the simulated client gave me. She was
honest (but also very kind). I haven’t viewed my video yet , but I’m sure
it will be extremely useful to go back and review my
questions/demeanour/etc.
• Helpful feedback
• I would love to get more opportunities to do this
• Yes, I feel better prepared and the feedback I got was very reassuring
• I really enjoyed this experience and would recommend that it be
implemented into the legal process course curriculum
• The feedback was splendid I see where I need to improve and at the
same time I was made aware of my strengths that I need to hone
• I feel like it was a worthwhile and that that we should have more
opportunities to participate in similar activities
30

more information…
1. Websites:
1. See Simulated Client Initiative, http://zeugma.typepad.com/sci
2. these slides @ http://paulmaharg.com.
2. Barton, K., Cunningham, C.D., Jones, G.T., Maharg, P. (2006). Valuing what
clients think: standardized clients and the assessment of communicative
competence. Clinical Law Review, 13, 1, 1-65.
3. Maharg, P. (2007). Transforming Legal Education: Learning and Teaching
the Law in the Early Twenty-first Century. Aldershot, Ashgate Publishing,
chapter 2, 64-67.
4. Daniel Webster Scholar Honors Program:
https://law.unh.edu/sites/default/files/media/dwsonepager2016update.p
df
5. Barton, K., Garvey, J.B., Maharg (2013). ‘You are here’: learning law,
practice and professionalism in the academy. In Bankowski, Z., Maharg, P.
del Mar, M., editors, The Arts and the Legal Academy. Beyond Text in
Legal Education, vol 1. Routledge.

5. Implications for future law school
educational practices
‘Aesthetics matter: interface design shapes learning’

Context of legal education has changed
markedly since 1996. But law schools are still
focused on:
1. Organisations, ie LMSs, silos of knowledge
2. Products, ie handbooks, handouts, closely-
guarded downloads, (pay)walled gardens
3. Content, ie modules, instruction, transmissive
content, lockstep & linear progress
4. Snapshot assessment of taught substantive
content
compare Birks’ edited collection with
today’s workshop

1. Organisation to create weak boundaries, strong
presence through resource-based, integrated
learning networks, with open access (open
courseware initiatives, etc)
2. Focus not on transmissive static content but in part
on web-based, aggregated content in part created by
students and re-usable as open educational resources
(OERs)
3. Learning as integrated understanding & capturable
conversation, just-in-time learning
4. Assessment of situated learning
Changing the hermeneutic focus

which in more detail could entail…?
35
Eg 2. Web-based, aggregated content
1. Content shared on an open basis with other institutions,
other professionals
2. Content flexibly applied in a flexible curriculum design
3. Method & content shared across cohorts, across year groups
4. Strong links with workplace learning and embedding of
theory, shaping of theory in practice, development of new
theory arising from practice
5. Use of legal informatics and analytics; analysis of machine
law

possible futures…
• Quality of digital content essential, more convergence in
platforms; campus becomes a learning platform
• A return beyond the book to a manuscript culture. But
immensely faster, more complex, with its own hierarchies of
knowledge and power.
• Distance and intimacy will be redefined; ownership and identity
defined
• More need for Open: OAccess, OResearch, OPlatforms, remixing
tools and cultures
• Increased threat to academic independence from corporate
providers, eg publishers:
– Cost of journal subscriptions – see http://bit.ly/2mNFxRv
– Corporate capture of our learning / teaching systems
• Analytics will matter more and will re-code what we do
• Bots and exo-cortices will facilitate collaborative learning online
36

37
…but on technology, we have no
disciplinary memory in legal education…
• There are no histories, one bibliography (Goldman,
2008), no collective statements, no policy papers, no
map of interdisciplinary collaborations, no meta-
reviews, few discourse analyses of the field (none
updated). In the UK, three BILETA Reports (1991,
1996, 2004). One systematic review:
Maharg, P., Nicol, E. (2014). Simulation and technology in
legal education: a systematic review and future research
programme. In Grimes, R., Phillips, E., Strevens, C. (eds),
Legal Education: Simulation in Theory and Practice, Ashgate
Publishing, Emerging Legal Education series, 17-42.

also true of legal education generally
• LETR (2013)reported on poor or non-existent data,
research that was not sufficiently robust in methods –
same holds true for many jurisdictions
• For LETR we collected over 2,000 references online,
but not updated by regulators
• Recently, the IBA President’s Taskforce on the Future
of Legal Services attempted a survey of the field of
technology and legal services – but again, one-shot
research
• No sustained, longitudinal effort to map the field,
create taxonomies, tag-structures, etc – cf medical
education practices
38

some references
McKellar, P., Maharg, P. (2005). Virtual learning environments: the alternative to the
box under the bed, The Law Teacher, ‘Special Edition on ICT’, 39, 1, 43-56
Maharg, P. (2007). Transforming Legal Education: Learning and Teaching the Law in
the Early Twenty-first Century. Ashgate Publishing, Farnham, Surrey. See
chapter nine: ‘Multimedia and the docuverse of law: learning and the
representation of knowledge’.
de Freitas, S., Maharg, P., eds (2011). Digital Games and Learning. Bloomsbury,
London.
Maharg, P. (2014). Convergence and fragmentation: legal research, legal informatics
and legal education. European Journal of Law and Technology, 5, 3.
Available at: http://ejlt.org/index.php/ejlt/.
Maharg, P. (2016). Webcasts and podcasts: digital designs and learning. Faculty
seminar, Chinese University of Hong Kong, June 2016. Available at:
http://paulmaharg.com/slides
Maharg P. (2017). Multimedia learning, 2002-2018: A case study across a century of
digital learning. Faculty seminar, Osgoode Hall Law School, April 2018.
Available at: http://paulmaharg.com/slides
39

Email:pmaharg@osgoode.yorku.ca
Web: paulmaharg.com
Slides: paulmaharg.com/slides

Complicitous and contestatory - the hermeneutics of legal education

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Similar to Complicitous and contestatory - the hermeneutics of legal education

Similar to Complicitous and contestatory - the hermeneutics of legal education (20)

More from York University - Osgoode Hall Law School

More from York University - Osgoode Hall Law School (16)

Recently uploaded

Recently uploaded (20)

Complicitous and contestatory - the hermeneutics of legal education