Convergence and
fragmentation: legal research, legal informatics and legal education
Paul Maharg
Cite as Maharg P., “Convergence and
fragmentation: legal research, legal informatics and legal
education”, in
European Journal of Law and Technology, Vol 5, No 3, 2014.
ABSTRACT
Fragmentation
and convergence are two discoursal lenses that have been used to view
changes
that have taken place in the domains of legal services, the legal
profession, regulation and legal
education. While they may appear
orthogonal, the relationships between them are intimate, sophisticated,
constantly shifting and require much more analysis.
In this paper I shall argue that law schools need to
engage with both
processes for they are powerful actants upon the way we perceive our
schools
and our roles within them. They are also powerful forces upon
what and
how we teach, and the nature of the knowledge that is the focus of our
heuristics. To exemplify this argument
and to begin to examine its strength as a tool for analysis I shall
focus on
one area of legal education, namely the three fields of legal
information
literacies, legal informatics and legal writing. I shall argue
that the
sum of the convergence of all three would significantly improve the
educational
effects of the parts in our curricula. I shall explore how
studies in New
Media on media convergence give us models for such convergence, and can
reveal
the educational effects that the process may bring about.
[A] genuine
shift in the way we produce the information environment that we occupy
as
individual agents, as citizens, as culturally embedded creatures, and
as social
beings goes to the core of our basic liberal commitments.
(Benkler
2007, 464)
INTRODUCTION[1]
It is something of a commonplace now that a
key characteristic of the legal field in society is fragmentation. In the UK the legal profession is fragmenting
under economic pressure, both from competition within the profession
and from alternative
business structures (Abel 2003; Boon et al 2005; Sherr & Thomson
2013). The churn of the digital domain
exacerbates
inequalities between firms, where access to data is highly
commercialised
(Gillers 2012). Regulation is becoming
more complex, detailed and granular.
Legal services are becoming more niche,
more
specialized, at BigLaw and corporate level as well as on the High
Street and in
legal aid, what remains of it (Galanter & Henderson 2008;
Dizienkowski
2014; Kowalski 2011; Burk & McGowan 2011).
As a result of this and the recent global recession, the
relations
between these legal functions, roles, tasks and cultures are changing
significantly (Ribstein 2012).
Professionalism is under pressure and morphing into splintered
sub-professional identities as a result, and the general activities of
title-based services are undergoing transformation (LETR 2013; Francis
2005). There are new types of law firms
(Legal Zoom, Axiom, Legal Rocket, Clearspire, Riverview Law), offering
for
instance fixed fees and lower overheads; there are alternatives to law
firms,
such as LPOs (legal process outsourcing providers) and there are law
firms that
offer unbundled services, from document review to paralegal services.
For law
firms, as for media companies, the services ‘bundle’ is
foundational. Unbundling could become, as
Susskind and
others have pointed out, a significantly disruptive service. In this regard legal services, with the rise
of document review, paralegal support and other services, BigLaw
appears to be
following the example of BigMedia. In
newspapers as in TV, ads and commercials are embedded in print and in
channels
whether we want them or not; and titles and channels are frequently
bundled
together; and the process of unbundling is a major force of disruption
in media
markets.[2]
Law Schools are not immune to the force of
fragmentation. As market liberalisation
proceeds apace we shall see spirals of competition and innovation
taking shape
that will have profound effects on the shape of legal educational
curricula –
what is learned, how it is learned, where, and at which times (Thornton
2012). In times of economic downturn
there is pressure on school fees, on the need to change curricular
structures
and timelines (Breneman 2006).[3] There is increasing specialisation of subject
and programme and not merely at Masters level but at foundational level
too,
often with consequential silos of subjects and programmes.
Above all there is the splintering effect of
privatization of the public good of legal education into market share,
commoditised
practices, and labour trends.[4]
But alongside fragmentation there are also
powerful movements towards convergence.
Law firms merge; business practices converge to drive down
transactional
costs (Parnell 2014). Regulators are
driven by consumers to homogenize and standardize legal services
(Stephen
2006). In fields such as international
finance regulators are increasingly merging hugely complex regulatory
structures, or at least making them complementary to each other
(Prabhakar
2011). Legal services are homogenizing,
fuelled by the cost savings to be found in digital technologies and
outsourcing
(Susskind 2010).
In law schools convergence has been
gathering pace. There are the
homogenizing influences of technology – of institution-wide
applications for
data storage, transfer and analysis.
Learning management systems and the corporate provision of
online legal
research tools have tended to standardize learning and research
practices. The morphing of libraries into
a universal
model of the Academic Commons is gathering pace (Forrest and Halbert
2009). The effect of regulation that
seeks, via professional and nationwide regulation (for example in
Australia, the
Australian Qualifications Framework (AQF), Tertiary Education Quality
Standards
Agency (TEQSA), Law Threshold Learning Outcomes (TLOs), Practical Legal
Training National Competency Standards for Entry-Level Lawyers (NCS),
Council
of Australian Law Deans Standards for Australian Law Schools (CALD
Standards))
to set standards for programmes of study also has the potential effect
of
converging standards, as does regulation of professional programmes
such as the
Graduate Diploma in Legal Practice (GDLP) in Australia or the LPC or
BPTC in
England and Wales (LETR 2013).[5]
The effect of fragmentation and convergence
on each other is one of the key forces in HE
today. The forces are not necessarily
orthogonal
even if the contrast may make them seem so.
Just as tradition and innovation, as we
shall see, are
never only contrasts, so too with fragmentation and convergence. There are inherent indeterminacies,
predispositions to certain kinds of movement and change, and
multivalencies in
their interactions. To date, though,
there has been little analysis of it for law schools,
or useful models though which we can analyse, understand and use its
power to
transform legal education for the better.
In this article I argue that law schools need to pay much more
attention
to the processes involved, and their shaping influence on schools: on
the
organisation itself, on the curriculum, knowledge, skills, staff time
and
activity, student well-being and their activities within the school and
beyond
it. More broadly, they need to
understand how the forces of convergence and fragmentation work to
shape
knowledge, society and the legal profession in particular.
Conventional curricula, and the innate
conservativism of law school curriculum design, I argue, must change to
develop
interdisciplinary ways of thinking about law’s operation in the
world, in order
to enable students, the profession, and society itself to develop
explanatory
and predictive frameworks to help them understand the power and
direction of
these forces.[6] In this article I shall explore some of its
effects on one small corner of law school activity, namely the fields
of legal
research, writing and informatics. I
shall argue that the reconfiguration of them can reveal value, values
and
social capital that can contribute to the re-shaping of the law school. As we shall see, new properties emerge in the
reconfigured network of the sub-domain, properties that inhere in the
reconfiguration itself, not just in the individual modules or topics
that make
up their structures.
LEGAL RESEARCH AND
LEGAL EDUCATION
Legal research has occupied an uneasy place
in the legal curricula of common law jurisdictions.
It is often classed as a skill, and practised
in induction or introductory subjects and, until recently, was little
theorised
(Callister 2010). Its physical locale is
uncertain, too, sited between lecture hall and library and, recently,
digital
spaces online. Latterly, it has been in
part recast as legal information literacy; and in many respects a new
digital identity
holds much potential (Paliwala 2010).
This much was clear from an interview conducted two years ago
with three
senior law librarians in the Legal Education and Training Review (LETR)
project, in England and Wales.[7]
The interview ranged widely on issues of
digital literacy, and the future of legal research literacy. The interviewees were critical of the way
that digital practices were superseding analogue research practices,
while at
the same time digital research methods seemed to be not as effective as
they
might be. Speaking of trainee research
practices they observed that:
They
[trainees in England and Wales] appeared to be generally unfamiliar
with
paper-based resources by comparison with digital resources. In addition they noted that trainees seemed
to depend on one-hit-only searching: in other words they did not check
thoroughly and contextually around their findings.
They used Google extensively and their
searches tended to be shallow and brief.
Trainees were also increasingly unable to distinguish between
the genres
of legal research tools – the difference between an encyclopaedia
and a digest,
for example. They seemed to lack
persistence and diligence in searching, as well as organization. These values, that underlay the learning
outcomes of the LILT [Legal Information Literacy Tutorials] document,
needed to
be worked on by students. The group were
unanimous in their opinion that many academics shared the weaknesses of
students and trainees in this regard.[8]
There was agreement among them that there
was a need to restate the nature of research activity, given the
changes
wrought by the digital revolution.
Interestingly, when asked whether there was a distinction
between
academic and professional legal research training needs, the three
librarians
were of the opinion that a single competence framework could
accommodate both,
if appropriately constructed. LILT was
designed to be a ‘common denominator’ in all law programmes
and had, according
to the group, been well received.[9] There was also a need to align learning and
assessment in this regard; and again, process was emphasised over
content in
assisting the transition from academic to some kind of professional
experience:
students
needed to be assessed on skills as well as content: process needed to
be
audited both in practice-based situations and in formal academic
learning, and
indeed if good habits were established early on in academic learning,
supported
by staff and driven in part by assessment, then it would make the job
of
practice-based librarians a lot easier.
Throughout the interview there was an
emphasis on the critical importance of process over content, and this
extended
into the detail of regulation of legal literacy and legal education. Some issues that the interviewees raised
included the following:
a.
The QLD
[Qualifying Law Degree – the varieties of undergraduate law
degree in England
and Wales] is highly academic, and focused on content too much. Little space in it for focus on process, ie
how students learn what they learn.
b.
The
BIALL Toolkit […] could be used as an element of the regulatory
process.
c.
Mind the
gap -- regulators need to focus on smoother transitions and better
links
between the various stages of legal education.
The gaps are clear to librarians in both academia and practice,
who can
see learning deficits in the move into academia, and from formal
learning to
the more informal learning that takes place in practice contexts.
d.
From a
regulatory point of view, what was needed was both more specification
of legal
search skills and digital literacy (hence LILT and other documents) and
more
focus on process.
e.
The law
degree was an apprenticeship of content, not of process.
f.
Over the last few decades the law
curriculum had become ever more crowded with more core content and
extra
options.
g.
Part of
the solution to crowded curricula was better design.
In particular, academic staff needed to
design with library staff in joint activities.
Library staff, in other words, needed to be more at the heart of
the
educational design process with academic staff, and involved in
teaching,
learning and assessment. […]
h.
Following
on from this, regulators needed to recognize the changing role of law
librarians as legal educators. Currently
librarians are classified occupationally in many institutions as
‘Clerical
Staff’ or some such. This needs to
change and their role as educators and digital information curators and
digital
information environment designers should be recognized.
The interview was of course only a snapshot
of opinions from the Working Party.
Nevertheless the opinions were the considered views of three
experienced
and respected professionals in the world of legal information science. There were two main themes.
First, there was an emphasis on the
importance of process, and the extent to which it had been ignored in
the
design of legal education. By
‘process’
the interviewees meant the ways that students come to learn, and the
ways in
which that learning is supported in the context of other legal
learning, both
in HE and in lifelong learning. Second,
they pointed out the extent to which their roles as information
scientists had historically
evolved away from the conventional understanding of the roles of
librarians.
Their views were representative of some of
the literature on digital literacies, as we shall see.
Stepping back from the detail of what they
argued, one could see that underlying their comments was an implicit
view of
what education in information might potentially be for, what
expectations we
might have of the place of information science in the legal educational
process, what the essence of academic and information science jobs were
and
were evolving into. And these cannot
be
separated from the wider question of what learning looks like, and
which
varieties of pedagogic, social and cultural models were brought to the
conversation.
But interestingly, they did not articulate
the view of early digital texts on information science in law and legal
education. Roznovschi (2002), for
instance, writing over a decade earlier, argued that there were
enormous
transformations in the legal research process, amounting to the
emergence of a
new legal culture, a view shared in respects by others, eg Zivanovic
(2002),
and which at the time was part of the general discourse of radical
newness that
the digital domain attracted. Instead,
the interviewees expressed views that were indicative of a convergence movement --
convergence in terms of academic and practice literacies, between
formal and
informal learning contexts, between process and content, between the
work of
academic staff and library staff; and in terms of the new job
descriptions that
were required in the areas of academic staff employment and information
staff
employment. But this convergence also
contained fragmentation – the break-up of our old ideas of what
librarians do
and how they are defined by their conventional space of the physical
library,
as they move into new spaces, online, and flow into the work of
classrooms,
online learning management spaces, content management systems, and much
else,
as we shall see.
CONVERGENCE AND NEW
MEDIA
If we are to take this idea of convergent
spaces in legal research, legal writing and informatics seriously, what
shape
might it take? What forms of convergence
might be useful, and which strategies should we use?
What might the future of legal research and
legal education look like, and what role might bodies dedicated to the
open
movement (such as the LIIs, eg AUSTLII or BAILII) play in this future? To answer these questions we need to define
first what ‘convergence’ actually means.
Here, I take as my key text Henry Jenkins’ work on
convergence cultures
(Jenkins 2006)[10]. In the book of that name, Jenkins analyses
forms of media, particularly digital New Media, and shows how
conventional and
New Media are converging in ways that are transforming our current
understanding
of media content, both corporate and grassroots.
These have important effects, he argues: the
struggles that define this convergence will also define how business is
conducted, how education happens, and how democratic processes are
enacted in
our society.[11]
He starts by making a distinction common
amongst media analysts between media
and delivery technologies (13).
A delivery technology is a tool by which we consume media
– he cites the
Betamax tape or 8-track audiotape as examples of defunct delivery
platforms. Media, on the other hand, is
a more complex concept, and he cites Lisa Gitelman’s two-level
model of
media. First, ‘a medium is a
technology
that enables communication’. Recorded
sound is an example. But it is also
‘a
set of associated “protocols” or social and cultural
practices that have grown
up around that technology’ (13-14).
As Jenkins points out, a medium’s content
shifts according to the delivery technology (he cites television
displacing
radio as a storytelling medium), and ‘its social status may rise
and fall’, but
‘once a medium establishes itself as satisfying some core human
demand, it
continues to function within the larger system of communication
options’
(14). In the example above, for
instance, TV drama and films clearly replace many of the storytelling
functions
of radio; but in the UK at least, radio drama survives, albeit as a
niche
genre, and radio itself has become a platform for talk-radio (eg BBC
Radio 4)
or music (BBC Radios 1-3). Similarly
there is currently a shift between programmed TV, which used to be
available
only on a TV set, or on ‘watch-again’ TV (available on
digital TV sets but also
on every other digital-enabled device, eg notebooks, tablets, phones)
and
unprogrammed or ‘cord-cutting’ digital streaming services
such as Netflix.[12]
All these shifts do not happen, of course,
without agency or outside the grid of global capital.
Jenkins’ book charts the struggles between
corporate and grassroots in digital media, and we shall consider one
instance
of this below. The shifts between media,
though, and knowledge of what happens when
they happen
and resistance to them, have been going on for some time.
In an early and celebrated account of one
such shift and resistance to it, the nineteenth century Scottish poet
and
novelist James Hogg describes a meeting between Sir Walter Scott and
Hogg’s
mother, Margaret Laidlaw, where Scott, a famous collector of Border
stories and
ballads, asked if a particular ballad that she had just chanted, Auld
Maitland,
had ever been printed. Hogg recorded his
mother’s reply:
[There] war never ane o’ my
sangs prentit till ye prentit them yoursel’, an’ ye have
spoilt them awthegither.
They were made for singing an’ no for reading; but ye hae broken
the charm now,
an’ they’ll never be sung mair. (Hogg 1972, 61-2)[13]
It is an interesting moment. As
set down by Hogg (who of course had his
own reasons for constructing it thus), the meeting is descriptive of
two
cultures, oral and print, colliding: one voluntarist, rooted in the
community,
dependent on historical and social continuity and the listener/speaker
(Margaret Laidlaw); the other embedded in commerce and capital,
dependent on
market and reader/writer (Scott). But
there are other antinomies at work here.
Scott is a product of the volatile early nineteenth century
print
culture he came financially to depend upon.
He is a member of the lesser gentry, an Edinburgh lawyer,
Sheriff Depute
of Selkirk, a Tory in politics, European in his influences, profoundly
a
nationalist in sentiment only; and at this point he is making his
fortune from
the early capitalist print nexus, which would later ruin him. Margaret Laidlaw is in many ways antithetical
to this male, professionalized, commercial context: a woman of Border
tenant
farmer stock, a singer, memorising songs and ballads, and performing
outside
the nexus of early nineteenth century capital.[14]
But she is aware of what is happening to
her songs (‘till ye prentit them yoursel’’), as well
as the effect that
printing has upon them. Her position as
a representative of the pre-modern and ancient is itself a marker of
the shift
in the cultural practices and changed transmission of modern media. And she is aware of future practice, of the
way that the past is appropriated by the modern in a double-bind
validation
from which it cannot escape. For the
oral past is at once the sacral source of the modern printed version
because it
is the past; and yet to exist in the grid of contemporary polite
bourgeois
culture it required the validating custodianship of a trusted figure,
such as
Scott had become, to assign to it the insignia of ancient culture. And in the process the original social event,
the multi-layered community bond between listener and singer –
Mrs Hogg’s
‘charm’ – is changed utterly. As
a
result, she predicts: ‘they’ll never be sung mair’.
Actually, the songs are still sung today,
but in entirely different contexts – those of traditional music
education and
performance. In other words print
culture does not obliterate oral culture: it changes and shifts it. Gitelman describes this with her subtle
definition of media. The
‘protocols’ she
alludes to include ‘a huge variety of social, economic and
material
relationships. So telephony includes the
salutation “Hello” […] and includes the monthly
billing cycle and includes the
wires and cables that materially connect our phones’ (cited in
Jenkins,
14). Those wires and cables are
undergoing economic shifts, as more of us abandon landlines for mobile
phones
as the primary mode of personal telephony.
Jenkins, though, is more concerned with the
shifts and struggles that occur in contemporary culture.
For him, media convergence is not a
convergence of delivery technologies. In
fact he points out that there is an increasing divergence (or in the
terms of
my argument here, fragmentation) of media platforms and types of
digital
devices available to us – compare the desktop computer to the
phone, tablet,
phablet, e-reader; and this does not take into account the multiple
digital
devices such as watches, car displays, sat navs, washing machine cycles
and
many more that are embedded in almost every aspect of our lives.[15] In an important passage he describes how
media convergence
alters the
relationship between existing technologies, industries, markets,
genres, and
audiences. Convergence alters the logic
by which media industries operate and by which media consumers
process news and entertainment. Keep
this in mind: convergence refers to a process, not an endpoint.
[…] Ready or not,
we are already living within a convergence culture. (15-16)
Media ownership, he pointed out, fuels this
convergence process:
Whereas
old Hollywood focused on cinema, the new media conglomerates have
controlling
interests across the entire entertainment industry.
Warner Bros. produces film, television,
popular music, computer games, Web sites, toys, amusement park rides,
books,
newspapers, magazines, and comics. (16)
Jenkins’ arguments have particular
relevance for the position that the technologies of legal education
have
reached, in the second decade of the twenty-first century.
On the doorsteps of our faculties are
publishing corporations such as Pearson eager to dominate and commodify
our
digital educative practices and play the role that Jenkins describes
for Warner
Bros above, in supplying digital infrastructure as well as content.[16] Increasingly our institutions are signing up
into institution-wide systems that, decades ago, were at first used
purely by
our Finance Offices to streamline their work.
Later, administrative units adopted them; and now management and
IT
Central are increasingly forcing faculty to accommodate their practices
to the
shape and purpose of software that may not necessarily offer us what we
need to
improve our teaching and our students’ learning.[17]
But it’s not all bad news in Jenkins’ book. Following this process of convergence, he
tracks consumer practices within it, and notes how convergence can
create
affordances that were simply not possible before that process occurred. Thus, nowadays:
fans of a
popular television series may sample dialogue, summarize episodes,
debate
subtexts, create original fan fiction, record their own soundtracks,
make their
own movies – and distribute all of this worldwide via the
Internet. (16)[18]
Much in this new world is uncertain
according to Jenkins, and still in the process of being played out. Are the gatekeepers of media constantly losing
and regaining control (for instance the struggles over Napster) or have
they
now too much control (one might cite the dominance of iTunes)? Is it a top-down process, with consumers
completely in thrall to new media corporates, or do consumers, now much
more
active, migratory and socially connected, have more impact on new media
content
and process than they had before the advent of the digital commercial
domain? The answer lies somewhere
in-between according to Jenkins, and his book explores how this works
out in
practice.
One chapter is particularly relevant to
legal research and education. In
‘Why
Heather Can Write: Media Literacy and the Harry
Potter Wars’ Jenkins describes the fan literature and its
culture that grew
up on the web around the Potter novels.
Fictionalley.org alone hosted ‘more than 30,000 stories
and book
chapters, including hundreds of completed or partially completed
novels’
(179). Jenkins characterized this as
‘a
story of participation and its discontents’ (171), where on the
one hand the
religious right-wing in the US tried to ban the Potter books from
libraries and
bookshops because of its subject matter (characterized as the occult),
while
Warner Bros claimed that web-based fan fiction infringed the
studio’s IP, sent
cease-and-desist letters and otherwise attempted to shut down the fan
sites.
All this was organised by the fans
themselves, who also organized publicity campaigns against both the
religious
right and Warner Bros, forcing the studio to negotiate and compromise. The entire fan enterprise is an example of
participatory culture on a global scale.
As Jenkins describes it, ‘[t]hese kids
are mapping out
new strategies for negotiating around and through globalization,
intellectual
property struggles, and media conglomeration’ (205). In terms of Gitelman’s definition of
media,
the Potter fans’ online culture changed the form and effect of
media, (print to
internet), and in doing so challenged the legal, religious and social
attitudes
towards the books they loved and learned so much from.
The culture and context, in other words,
mattered enormously to the message.
The fan communities also helped the fans to
become better writers. Jenkins analysed
the communities generating the fan fiction in some detail, showing the
remarkable learning environment that was being created by fans in the
fan fiction
websites. The fans themselves created
the conditions under which they could create, discuss and receive
feedback upon
their work, and learn from others, particularly more experienced
writers who
would take up a coaching role.
In many respects what Jenkins describes the
fans doing is best practice in the development of writing skills in any
discipline. The following table maps
good coaching in writing skills with the evidence that he describes:
Table 1:
Coaching and writing skills
|
|
Good coaching practices (Flower 1994) |
Potter fan fic sites |
|
1 |
Create a specific site for writing |
Eg www.fictionalley.org (179) |
|
2 |
Provide mentors for new writers |
‘forty mentors …
welcome each new participant individually’. (179) |
|
3 |
Set up peer-review |
‘At The Sugar Quill, www.sugarquill.net, every posted story undergoes beta reading’. (179) |
|
4 |
Provide critique |
‘constructive criticism
and technical editing’ is provided. (179) |
|
5 |
Introduce writers to the techniques of multiple drafting |
‘New writers often go through multiple drafts and
multiple beta readers before their stories are ready for
posting’. (180) |
What is remarkable is that the fan fic
sites are organised much as the much larger and more sustained
crowd-sourced
projects such as Wikipedia and SourceForge are organised: by the crowd,
who
accept the authority of a small number of what might be termed
editorial staff
to arrange most aspects of the online environment for their
collaborative work. The key question for
legal educators is how might we organise
our curricula such that we can leverage
the power and intensity of such learning.
LEGAL INFORMATICS
The collaborative, ground-up communities of
practice that converged on the web around the Potter novels are by no
means the
only such example of participative community-building.
Wikipedia is the giant example, but there are
many others; and many theorists who have, for a decade and more,
pointed to the
profound capabilities of such communities to shape and sustain what
Giddens has
termed a ‘narrative of identity’ (Giddens 1991b; see also
Shirky 2009). As Benkler has observed of
the domain of
digital capitalism, peer production can be a new mode of collaboration,
one
where individuals participate in joint production in return for status
within
or beyond the collaboration (Benkler 2007; 2011). Others
such as Hardt and Negri (2000) have
described the potential changes within the structure of capital that
can be
brought about by such collaborative effort:
Today we
participate in a more radical and profound commonality than has ever
been
experienced in the history of capitalism.
The fact is that we participate in a productive world made up of
communication and social networks, interactive services and common
languages. Our economic and social
reality is defined less by the material objects that are made and
consumed than
by co-produced services and relationships.
Producing increasingly means constructing
co-operation
and communicative commonalities.
All of them show us an alternative future
for legal education, to that where our
means of
production (and its content) are controlled directly by the market. The field of legal informatics
gives us many extraordinary examples of collaboration and
communication initiatives. There is work
on linked open data in the legislative domain (Nečaský et
al 2013);
e-petition systems and political participation (Bōhle & Riehm 2013); deliberation in
crowd-sourced legislative processes (Aitamurto & Landemore 2013);[19]
unbundling of legal services and the implications of this for academic
and
professional law librarians (Noel 2013); and in judicial communication
systems
(Rowden et al 2013).[20] The instance of Aitamurto & Landemore is
interesting because their findings indicate that first, and contrary to
other
studies, there is deliberation in the crowdsourcing process that occurs
organically among participants, despite lack of incentives; and second,
there
is a strong educative element in crowd-sourced law-making process, with
participants
sharing information and learning from each other.
One example of such an event is a
‘hackathon’ – often an interdisciplinary meeting of
coders, designers and
others (eg graphic designers) coming together to work on code projects,
sometimes with prizes for best projects.
A recent one held in New York in September 2014 was entitled
‘Code the
Deal’, organised by Legal Hackers and the US law firm Nixon
Peabody. The projects worked on in the
event included
BEcology (software to enable start-ups to communicate with investors)
DoVault
(software that uses facial recognition to authenticate individuals
accessing
legal documents – third prize), and Obsidian Redline –
software for
collaborative drafting and discussion of legal documents – the
first prize-winner. 16 coding projects
were worked upon, all of
which were designed to improve transactional legal practice.
Forms of convergence such as this, I would
argue, are what are needed in legal education. Their
qualities are those of the New Media
communities identified by Benkler (2007).
In the domain of education there are four areas in which such
convergence
could take place: in organizations, resources, design and assessment. Most formal legal education takes place in
organizations that act as silos for knowledge, isolated, often in
competition
with each other, rarely acting in concert with other organizations in
education
or in society generally. The
organization’s educational resources often consist of handbooks,
lectures,
course outlines – closely-guarded downloads, which are seldom
freely available,
unless (rarely) part of an OER programme or a MOOC.
The design of programmes is often on a
hierarchical block model: modules or subjects, with lock-step advance,
where
subjects within a module must be passed in series, and where modules
must be
passed in series too. Assessment of
substantive content often takes the form of snapshot assessment, in
essays or
in examinations.[21] And too often there is little rigorous,
systematic educational research on the forms of legal education that
are
used.
Convergence thinking, however, contrasts
strongly on these issues. Organizations
would no longer be unitary, solitary.
They would have weak boundaries vis-à-vis other
organizations, and by
the action of co-operating with each other, would develop a strong
presence
through the integration of resources and learning networks. Classic examples are the MIT and OU
Opencourseware initiatives.[22] Inter-institutional MOOCs are beginning to
form, but are still relatively new. The focus of learning and teaching
will
tend to be less on static content, and more on web-integrated and
aggregated
content. Learning will not be tied to
lock-step module but will be described as understanding and
conversation, and a
form of just-in-time learning, associated with tasks that draw on
real-world
activities. There will be assessment of
learning within the context of learning, not separated from it, ie a
form of
situated learning; and this will apply to law school’s own
research, akin to
the research carried out in Medical Education Units in Medical
Faculties.
EXAMPLES OF
CONVERGENCE
How
might this work in practice? We shall
briefly explore two examples, one from the domain of professional legal
education, and the other from legal informatics. Both
examples illustrate the necessity of
taking an interdisciplinary approach that takes account of the depth of
theory
and practice in other disciplines and applies it, phronetically, to law.
1: ARDCALLOCH
LEGAL INFORMATION AND ADVICE
SERVICE (ALIAS) – THE CONVERGENCE OF DIGITAL RHETORICS AND LEGAL
RESEARCH
In
the Glasgow Graduate School of Law’s Diploma in Legal Practice we
enabled
collaborative learning by dividing students into groups of four called
virtual
firms. Each firm had a web site, a
workspace and communication tools that were embedded within a virtual
web town
called Ardcalloch – effectively a representation of a typical
west-coast small
provincial Scottish town (Maharg 2007).
Amongst
many other activities in the firms and as part of the legal writing
stream of
the programme, we asked students to write articles for client bulletins. These would appear as copy for the
firm’s
client bulletin on their firm websites.
Each student was required to write at least two articles, each
no more
than 500 words or so, over the course of the year, and would be given
feedback
on the copy they wrote. The initiative,
we hoped, would give students an opportunity to research legal issues,
to write
legal copy for clients, and provide an activity in which they could
negotiate
between their interests and those of the fictional clients they were
constructing as an audience.
The
first year we ran it, however, the quality of the student articles was
disappointing. They were highly
variable, with many of them little more than versions of 2,000 word
academic
essays compressed into 500 words. Nor
should we have been surprised at this, since students had been
socialized into
producing such texts during the years of their undergraduate careers. Students themselves were critical of the
artificiality of the task, which lacked depth, structure and
authenticity.
Clearly
the form of the activity needed to be rethought. So
too did the method of text production
which emphasised individual production. The
individual articles had been produced on word processors by singleton
students,
and uploaded to their firm’s website.
Yet following the work of Deegan (1995), Christensen (2006;
2007),
Stratman (2002) and others we held writing
as a social activity, where we wanted to
emphasise:
·
networks
of
meaning
·
distributed
learning across the internet and other forms of knowledge representation
·
collaborative
learning at all levels
Clearly,
these values were not in evidence in our design of the task. In addition, and in feedback after the first
year, students told us that they needed more information about how to
link
research to writing, how to write the articles for clients via the web
rather
than for academic audiences, and how to write collaboratively. The activity needed re-design, therefore, and
along the lines outlined above, namely the organisation, resources,
design and
assessment of the simulation.
In the
second iteration of the initiative therefore, we invited a web writer
who wrote
copy for a large Scots law firm, together with the PSL (Professional
Support
Lawyer) responsible for liaison with the web writer in the law firm. Their advice to students was presented as two
webcasts. To address the issue of social and collaborative writing,
we
re-designed the writing environment. Articles
were drafted and collated on a wiki (see Figure 1), which was
represented as a
Law Society of Ardcalloch initiative – the Ardcalloch Legal
Information and
Advice Service (ALIAS). Within
the environment of the wiki
students would:
·
see
each
other’s drafts (collaborative learning)
·
amend
firm’s
drafts (collaborative working)
·
be
responsible for individual articles (ownership…)
Staff
could:
·
see
student
drafts (observe collaborative learning and working)
·
comment
on
drafts (give feedforward on individual work)
The
staff involved in giving feedback were in fact specially-trained tutors
called
‘Practice Managers’ – effectively, experienced
solicitors who had been trained
to be life-coaches to the firms of four students, and to enhance
learning and
trust within the firm. This was key, for the type of feedforward and feedback
that we would
expect them to give to students would substantially increase the rate
at which
students learned the markers of good professional writing.
In
this intervention, then, we directed students to the markers of
client-centred
text and web-focused text. In the
process, students learned about the differences between academic
content and
tone, and professional, consultative writing styles.
They began to appreciate the differences
between writer-centred text (where the writer’s purpose and
concerns figure
largely in the text) and reader-centred text (which invites the reader
into the
text, and deals with his or her concerns).
They also learned about the differences between professional
writing
produced for paper-based output and web-based output.
Students also would have the opportunity to
practise collaborative writing in a space where the history of their
drafts
would be transparent to the student group, and to the Practice Manager. The wiki environment together with the other
revisions we implemented succeeded in improving student writing, which
became
in the second year much more client-centred.
There
were interesting issues arising out of ALIAS for those of us involved
in
designing it:[23]
1.
In its legal research element, the
activity required students to seek and authenticate legal information
for an
audience that is usually largely interested in the result of legal
advice, not
the infrastructure of evidence – and particularly those clients
who would have
access to the web, but may not have access to legal databases or the
competence
or time to use them. The audience
of legal research, in other
words, mattered crucially: who wanted what information, why, and to
what
purpose? These questions of the legal
research process were almost never asked in students’
undergraduate experience
of legal education.
2.
In asking students to link an
article to the work of the virtual firm we were asking them to link text and action on the web. True
web-based text takes advantage of social
networking contexts and the social web.
The webcasts and the wiki context of ALIAS certainly helped, but
it was
clear to us that much more of this sort of work was required, not just
at the
end of formal legal education, in the postgraduate legal education
programme
the students were currently in, but throughout their legal education.
3.
If the Law Society of Ardcalloch
were interested in producing an initiative such as ALIAS, why
don’t other, and
real, professional bodies get involved in such activities?
Or a consortium of real firms? These
points, which went to the heart of a
number of regulatory and consumer issues, also raised the
question of a legal commons, as discussed by Benkler (2007). Fiction thus can comment on reality – a
point
that was actually made by some students in their feedback.
All
three
issues require further exploration, and it is fair to say that we did
not
address them fully in our experiment.
The first point clearly involves the use of open and free
resources such
as AUSTLII, BAILII and CANLII. How, for
instance, could students provide authentication of advice for clients
who were
not legally trained? How might deep
linking of legislation, for instance, be of use to clients (eg in-house
counsel) who might want to investigate bulletin advice further,
possibly to
advise? The second point also had
implications for the use of free legal sources.
How might we give students practice in developing levels of
authentication
appropriate for different audiences?
This requires habitual practice but also levels of communicative
and
particularly web-based competence that is seldom the focus of legal
education
at undergraduate stages.
The
third
point goes beyond the writing activity that was at the centre of this
intervention. The simulation models a
view of regulation that goes beyond the policy & audit model of
regulatory
activity. Instead, there is a view of
regulation that is linked more to
outcomes-focused regulation,
to a view of the centrality of public awareness and understanding of
law, legal
activity and legal culture. It is a view
where the customer/client focus of much legal services regulation is
replaced
by a citizen focus.
It is
a
jurisprudential issue, too, and goes to the heart of regulatory
concerns and
debates – for example the Hardwig (1985) / Fuller (1994) debate
on the nature
of social epistemology, the nature of power and informational
asymmetries in
society, and Murray & Scott’s definition of the modalities of
control
exercised by regulators (2002) –
|
|
Norms |
Feedback |
Behavioural Modification |
Example |
Variant |
|
Hierarchical |
Legal Rules |
Monitoring Powers/Duties |
Legal Sanctions |
Classical Agency Model |
Contractual Rule-Making and Enforcement |
|
Competition |
Price/Quality Ratio |
Outcomes of Competition |
Striving to Perform Better |
Markets |
Promotions Systems |
|
Community |
Social Norms |
Social Observation |
Social Sanctions – eg Ostracization |
Villages, Clubs |
Professional Ordering |
|
Design |
Fixed within Architecture |
Lack of Response |
Physical Inhibition |
Parking Bollards |
Software Code |
Scott observes that when governments consider a policy
problem – unsafe
food and passive smoking are two of the examples he considers –
regulatory
structures and processes have become the general approach to risk
mitigation
and behaviour modification. Scott
advocates a different approach. Instead
of replacing prior regimes with a regulatory agency, 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 the wrong way’
(Scott 2008,
25). He quotes the UK Better Regulation
Task Force guidance, first issued in 2000, where public policy decision
makers
are advised when considering regulatory change to consider
self-regulation, and
then ‘if less costly alternatives were not viable, plan a more
hierarchical
form of intervention’ (Scott 2008, p. 26).[24] Observing that
‘regulatory reform programmes
have nowhere led to a substantial reduction in governmental activity in
regulation, nor more importantly, a qualitative change in the character
of
regulatory governance’, Scott advises the use of what he calls
‘meta-regulation’, namely the idea that ‘all social
and economic spheres in
which governments or others might have an interest in controlling
already have
within them mechanisms of steering – whether through hierarchy,
competition,
community, design or some combination thereof’ (Scott 2008, 27).[25] Scott outlines two
challenges to this
approach – identification of the mechanisms at play, and creating
ways to steer
those that are not securing ‘desired outcomes’.
What is useful about Scott’s approach is the
co-option of culture and prior
history of community practice into the regulatory project, while
acknowledging
the need for change and creating the ways by which change can come
about. It is a subtle approach precisely
because
meta-regulation is an alternative to a governmental response to crises
that is
becoming more common, namely ‘mega-regulation’ (Scott cites
responses to the
BSE and Enron crises as examples of this).
Scott names the Legal Services Act as one area where
meta-regulation may
be appropriate. At the same time, though,
Scott acknowledges that the local conditions of any economic activity,
including professional activities, will need to be governed by a hybrid
mix of
the approaches outlined in Table 1 above.
He gives an example of his approach in action that illustrates
his view
of a multimodal approach to regulation, namely the regulation of roads
and road
traffic.
In
summary on the example of ALIAS, therefore, the
simulation opens up such debates and takes the argument as to
skills-based
learning and free informational sources and resources such as AUSTLII
to the
level of jurisprudential debate. But it
also reveals the extent to which convergence of media, skills,
cognition and
high-level regulatory and jurisprudential debate can take place in
legal
education innovation. And at the same
time it shows us how far such innovation has yet to go before our
capacity to
design for transmedia learning meets the capacity of, for instance,
even the Potter fan fiction sites.
Figure 1: Ardcalloch Legal Information and Advice Service (ALIAS)
2: LEGAL
INFORMATICS LITERACY
As John Palfrey has pointed out, the future
of legal informational services is interdisciplinary – another
form of
convergence. He cites the convergence of
‘statistics, sociology, computer science, neuroscience’
and others (Palfrey 2010, 171).[26] He also notes that the digital-plus age will
always be one of multiple media formats (Palfrey 2010, 175), and in
this he
agrees with Jenkins’ sophisticated concept of media convergence
– though as in
the case of televisual platforms cited at note 12 above, such
convergence often
involves fragmentation of media formats as well. As
educators, we do not need to know how to
code up environments in order to take part in online games; but we do
need to
understand the culture, potential and limitations of such environments
as
leisure environments and educational environments if we want to design
them for
education.
The same can be said for legal informatics
literacy. Law librarians, legal
academics and law students do not need substantive courses in legal
informatics
in order to appreciate the relevance of the discipline to a digital age
(Paliwala 2010). Haapio and Passera make
this point in a powerful post at VoxPopuLII:
Lawyers are communication professionals, even though
we do not tend to think about ourselves in these terms. Most of us give
advice
and produce content and documents to deliver a specific message. In
many cases
a document — such as a piece of legislation or a contract —
in itself is not
the goal; its successful implementation is.
They quote a range of interesting and
compelling examples, set out in the footnote below.[27]
All the projects illustrate the theoretical range and practical utility
of
informatics as a open space where other disciplines and legal
sub-domains –
art, rhetoric, design, legal research, clinic, legislative drafting
amongst
many others – converge to create new and interdisciplinary
approaches to legal
education. A number of them, Candy
Chang’s in particular, do for actual street law projects what we
were asking
our students to do in the environment of Ardcalloch for simulated
clients. All of them involved a wide
variety of
professionals, as did our ALIAS project, which involved IT developers,
web
designers, professional web writers, lawyers and academics. They are excellent examples of how we could
build interdisciplinary courses and projects not for
students but with and alongside students, for the benefit of
students, and for the benefit of many others beyond the law school. They are also good examples of how legal
research, legal writing and legal informatics can be converged.
CONCLUSION
As Dennis Kim-Prieto pointed out, legal
research education has been ‘slow to adopt information literacy
as a framework,
despite the demonstrated utility of
this framework when applied to library instruction and
assessment’ (Kim-Prieto
2011). In his perceptive history of
legal informatics Paliwala (2010) explained why legal informatics was
slow to develop
in law schools. As I have pointed
out, however, the forces of fragmentation and convergence play a key
role in
the development of legal education, as well as the development of the
legal
profession and the regulation of both; and are shaping the development
of new
forms of legal informatics and new convergences in the law school. Those schools that are aware of the dynamics
are those that are creating innovative curriculum interventions for and
with
students.
Perhaps the most useful approach we can
take to these forces in legal education is to help our students
understand them
and their influences in society, and to do so from an inductive
educational
perspective (Prince and Felder 2006). As
educational designers, we need to acknowledge the changing relationship
of the
three fields of legal research, informatics and writing to each other,
and the
ways in which the convergence of the three in a new legal subject could
create
a powerful way of learning new legal knowledge.
This apparently new nexus, in one sense though, is not new at
all: it is
a resurgence of the ancient tropes of rhetoric in an entirely different
context.
Are there any further practical conclusions
that can be arrived at? I would argue
that there are at least five:
1.
At the
end of his introduction to this journal’s special issue on legal
informatics,
Paliwala noted the decline of the relationship between legal
informatics and
law. It may be that the tide is turning:
recently, the state Bar of Massachusetts set standards for lawyering
literacy
in legal informatics. Legal educators
need to take this forward in our various jurisdictions and work
with regulators and others to shift the
focus on programmes from legal content to legal skills and deep
discussion and
practice of legal values.
2.
From
other disciplines, develop the concept of collective
competence and collective
responsibility around issues such as open and free resources, and
do this
via interdisciplinary approaches. In
this way, and as Gitelman advocates,
change the set of ‘associated “protocols” or social
and cultural practices that
have grown up around [a] technology’
3.
Oliver
Goodenough’s e-curriculum (2013) gives us useful pointers as to
what a
curriculum heavy with technology might look like; but we can do much
more to embed and converge
media.[28] We can use crowdsourcing, visualisation and
the tools of legal informatics in our classes, and in our understanding
of
legal education itself.
4.
Use legal information creatively,
imaginatively and practically, as the legal informatics examples
demonstrate, in order to re-imagine and re-create the legal curriculum
5.
Focus on complex and sophisticated
simulation environments in which we can use primary legal
resources with students, and practise using these in a wide variety of
contexts
within our teaching programmes. Above
all, take the means of production as much as possible into our own
hands.
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