Shared space: regulation, technology and
legal education in a global context
Paul
Maharg[1]
Cite
as Maharg P., “Shared space: regulation, technology and
legal education in a global context”, in European Journal of Law
and
Technology, Vol 6, No 1, 2015.
Abstract
The
LETR Report on legal services education and training (LSET), published
in June
2013, is the most recent of a series of reports dealing with legal
education in
England and Wales. Earlier reports do
not deal directly with technology theory and use in legal education,
though the
use of technology has increased exponentially in recent decades in all
areas of
social activity, not just in legal education and the administration of
justice.
LETR does deal with technology use and
theory, however, and its position is comparable with at least two
reports from
other jurisdictions internationally, with the findings of two
large-scale
projects in legal education and has parallels with the regulation of
the
quality of legal education in another jurisdiction in these isles.
In
this article I set out that position and contrast it with regulatory
positions
and statements on technology and legal education in England and Wales
going
back to the 1971 Ormrod Report. Based on a review not just of technological
implementations but of the theoretical educational and regulatory
literatures,
I shall argue that the concept of multi-modal regulation and
‘shared space’
outlined in the Report is a valuable tool for the development of
technology in
education and for the direction of educational theory, but particularly
for the
development of regulation of technology in legal education at every
level.
Keywords: LETR;
regulation; legal education;
digital technology; shared space; multi-modal regulation
Introduction
The
Legal Education and Training Review (LETR) was a review of legal
services
education and training (LSET), which consulted in the period 2011-2013,
and
published its report in June 2013[2]. It was instructed by the front-line
regulators in England and Wales, the Solicitors Regulation Authority
(SRA), the
Bar Standards Board (BSB) and ILEX Professional Standards (IPS), and is
the
first phase of a larger review of the structure and content of
professional
legal services education and training in England and Wales.[3] The remit of the Report team was extensive,
including
a substantial literature review (290pp in nine chapters), and was
intended to
assist the regulators in developing legal services education and
training
policy and practice by:
1.
assessing the perceived strengths and
weaknesses of the existing systems of legal education and training
across the regulated
and unregulated sectors in England and Wales;
2.
identifying the skills, knowledge and
attributes required by a range of legal service providers currently and
in the
future;
3.
assessing the potential to move to
sector-wide outcomes for legal services education and training;
4.
assessing the potential extension of
regulation of legal services education and training for the currently
unregulated sector;
5.
making recommendations as to whether and,
if so, how, the system of legal services education and training in
England and
Wales may be made more responsive to emerging needs;
6.
including suggestions and alternative
models to assure that the system will support the delivery of:
a.
high quality, competitive and ethical legal
services;
b.
flexible
education and training options, responsive to the need for different
career
pathways, and capable of promoting diversity. (LETR, 2)
Though
focused on LSET, the remit was, paradoxically, wider than any previous
legal
education review conducted in any of the jurisdictions of these isles. There were several reasons why this was
so. First the remit dealt not just with
educational content common to all earlier reports) or with assessment
(one of
the key issues in the Training Framework Reports) but with the nature
of
educational regulation itself.
Regulation was hardly ever a topic for earlier reports: it was
assumed
that legal education would be regulated by already-existing bodies in
the
historical environment that had developed over decades; and regulatory
action
and culture were rarely questioned.[4] LETR’s terms of reference put regulation
firmly on the table as a subject for analysis, comment and consultation.[5] Second, the topics were framed broadly. Under topic 5 above, for instance, we had to
define and explore terms such as ‘the system of legal services
education and
training’. Was there one system? What was ‘systematic’ about it? Did it make sense to extract it and consider
apart from other systems? What about the
unregulated sectors? Another example is the phrase ‘emerging
needs’ – what were
these? How were they emerging, how fast
were they emerging, and how permanent would their effects be on the
landscape
of legal education?
These
questions and the evidence base that LETR gathered on these questions
affected
the responses to topics 5 and 6 above.
For if the regulatory drive of the Legal Services Act and other
associated legislation is to create a liberalised market, where
competition is
a key driver and where consumer interest is a priority, a fundamental
question
for LETR was how that affected legal education.
In what sense could legal education be ‘liberalised’? Should competition always be a key driver,
for regulators, providers, students?
What part should consumer interest play in legal education? As a result, we advocated an approach to
regulatory reform known as meta-regulation or multi-modal regulation
(Scott
2012), and in particular (given the proclivities of regulators to
regulate only
their own particular silos – their personnel, programmes,
providers, cultures,
jurisdictions) the concept of ‘shared space’ –
a
community of educators, regulators, policy-makers and professionals
working in
provision of legal services, drawing information from other
jurisdictions,
other professions and other regulators to identify best practices in
LSET and
its regulation (LETR, 268).[6]
As
a result, we were compelled to think rigorously about our project
methodologies
– again, something upon which almost every earlier legal
education report in
England & Wales is silent. Our
approaches were set out in the 19 pages of Appendix D of the Report. We adopted a ‘problem-based’
approach,
whereby we took an iterative approach to the analysis of legal
education, one
that used ‘the methods of thematic inquiry […] to ground a
process of
collective learning and collaborative problem-solving within the
Report’s
remit. In more detail,
This three-stage
process builds up a picture of the problem, including potential
solutions to
the problem, then identifies and addresses critical information gaps,
before
developing the actual solution(s) to the problem collaboratively with
stakeholders. (1.18)
We
drew this up in a table that set out our approach to LSET reform as a
‘”socially complex” problem’ (Table 1.1):
Table 1: LETR Table
1.1.
In
this table, I would argue that the features of LSET described in the
right-hand
column are strikingly applicable to the situation of technology and
innovation
in legal education. Each of the rows
holds true for the subject. For example it
is often commented upon that technology constantly changes, not just
because of
the effects of Moore’s Law, but also because of the complex
nature of
educational problems and their constantly evolving social and
professional
matrices.[7] In turn, these problems are exacerbated by
the shape of reform initiatives – frequently one-shot operations
whose
sustainability is often seriously inhibited by uncertainty as to the
future
shape of technology in education, together with low trust among
regulators,
providers and other stakeholders.
For
the purposes of this article I shall focus on the effects of row four
(‘Large
number of stakeholders’ etc). I shall argue that regulation of technology
and innovation takes place in fields where ‘there are multiple
stakeholders;
limited consensus as to who the legitimate stakeholders and/or
problem-solvers
are, and stakeholders are likely to have different criteria of
success’; and
that these are complex regulatory issues that are central to the need
for
regulation and the way that regulation is carried out, and therefore
require to
be the focus not just for regulators, but for all stakeholders in the
field.
Finally,
and this is an integral part of our methodology too, a report as large
and as
complex as LETR cannot be read off from a series of Recommendations. If the problems of legal education across
England and Wales are socially complex, and their solutions are too and
require
creative and imaginative solutions, so too does our report require
creative and
imaginative reading. Not all the themes
and memes can be explicitly identified; there are many that exist as
implicit
links, bridges, correlations, analogies, synecdoches,
and I shall explore some of these in this article.
I
shall start with an overview of the treatment of innovation and
technology in
prior legal education reviews, before examining briefly the approaches
taken in
another jurisdiction before discussing the approach taken by LETR in
some
detail; and then draw theoretical and practical conclusions.
understanding
technologies: legal education reports prior to LETR
ORMROD
AND MARRE REPORTS
Even
a brief overview of the Ormrod Report
(Committee on
Legal Education [henceforth Ormrod] 1971)
and Marre Report (Committee on the Future
of Legal Education
[henceforth Marre] 1988) as well as the
later and
more comprehensive ACLEC Report (Lord Chancellor’s Lord Chancellor’s Advisory Committee on Legal
Education [henceforth
ACLEC] 1996),
together with the BILETA Inquiry will
give a sense of prior work on the
area.[8] Ormrod has almost
nothing to say about technology per se,
which is interesting in itself. If a report
can be said to have an authorial voice, that of Ormrod
was conciliation, attempting to bring together a
educational system that was in danger of fissuring; and one can only
understand
how necessary that was by reading what the Ormrod
Committee was reacting to – contemporary articles in the Law
Society Gazette
and other public statements on legal education in the 1960s, and the
worsening,
at times acid, relationship between academy and profession. Post-Ormrod, the
situation deteriorated, as pointed out by Wilson and Ormrod
himself; and academic voices that may have told of what was happening
in detail
within legal education in Higher Education (HE) were relatively ignored.[9] The report was something of a contrast, too, to the earlier Robbins Report on
HE, with its
eloquent vision of a new higher education landscape, which Ormrod
did not match.[10]
Caught as Ormrod was between a
constraining,
tentative remit and the double-bind of academy & profession, wider
vision
about the scope and purpose of legal education was always going to be
problematic.
If the
report deals hardly at all with technology, it could be argued that
since the
digital revolution had not really started, Ormrod
could
hardly be blamed for omitting it. But
other technologies were becoming available – radio and
television, for
example. In 1969 the BBC started to
produce OU programmes for TV (BBC2) and
Radios 3 and
4 that were broadcast in December 1971, outside peak listening and
viewing times.[11] The introduction of video-recording
technologies in the 1980s made it easier for students to study with the
programmes, which had significant effects
on the way that
OU curricula were designed. None of the programmes dealt with law or legal studies,
however, though
the technology could have been easily applied.
The
possibility of technological innovation being influential at a deep
level on
legal education does not seem to have occurred to members of the early
report
committees. In part this stemmed from
their backgrounds: none of them was trained in education or in
professional education (on Ormrod
Professor Sir David
Williams, though a distinguished Cambridge legal scholar, was not an
educational specialist). The same is
broadly true of the composition of the Marre
Committee.
Nor could it be said of the reports post-Ormrod
that they were constrained by terms of reference. The
remit of the Marre
Committee, for instance, was widely drafted and on legal education
required the
Committee to ‘identify those areas where changes in the present
education of
the legal profession, and in the structure and practices of the
profession,
might be in the public interest’ and, with regard to this
requirement, to
‘consult both inside and outside the profession as thought
fit’ (Marre 1988, 3).
The
problem lay in how the remit was interpreted by the Committee members. From its absence one can assume that
technology
was simply not part of a recognizable legal educational landscape
worthy of
gaze and analysis.
If Marre committee members
had looked beyond the shores of
England and Wales towards the USA, however, the Committee would have
encountered what is probably the first use of digital technologies in
the
classroom, in Chicago-Kent Law School, in 1983.
The law school installed two networks or ‘computer
labs’ as they became
known, and from 1984-86 conducted a detailed study, with IBM, in the
law
school’s newly-formed Centre for Law and Computers, of the effect
that digital
technologies were having on student performance (Matasar
and Shields 1995; see also Staudt 1987). Several years later, in 1988, at the time the
Marre Report was published, a company
called Mead
Data Central provided the law school with 500 LEXIS passwords to
initiate a
study of ‘pervasive and unlimited LEXIS/NEXIS access on legal
education’ (Matasar and Shields 1995,
914). After a review of the (very
successful)
project, Mead undertook to distribute 110,000 student passwords for
their
software nationwide, and the first major roll-out began of database use
in
legal education that continues, globally, to this day.
On the strength of this and similar projects,
Chicago-Kent Law School defined their role as a school that specialized
in
technology in legal education, as well as bringing technological
innovation to practising attorneys (for
example, via the TECHSHOW/PC
Strategies for Lawyers annual conference, and their collaboration with
CALI on
Access to Justice projects[12]). Nor did their research role diminish: each
year the law school conducted an annual survey of computer technologies
in use
by the 500 largest law firms in the USA.
In addition to this initiative, a number of conferences sprang
up to
support the emerging field – for example the international series
of
Substantive Technology in Law Schools (SUBTECH) Conferences (Jones 1993)
There is
one more reason why the earlier reports did not treat technology as a
subject
worthy of analysis in their report findings.
The reports seem to understand legal education as purely a
matter of
legal content, describing what was primarily a complex social
educational
system as if it were a legal system comprising rules, personnel, actions. Indeed when
one compares the earlier reports, Ormrod,
Benson and Marre, to the then current
educational debates around
education in schools, HE and elsewhere, the thinness of the
reports’ depth of
educational knowledge becomes apparent.[13] They took no part in any of the educational
debates of their day, and yet they dealt with matters intimately part
of the
academic domain, and this accounts in part for academic frustration at
the
reports’ contents. Academics and the
academic bodies such as SPTL did not, for their part, engage
sufficiently with
the reports, leaving that to the professional bodies, thus forfeiting
the field
to the profession’s bodies (this changed, as we shall see, with
ACLEC). In this sense, the reports’
treatment of
technology is a microcosm of the larger uninterest
displayed by much (though certainly not all) of the profession in
educational
theory and wider educational practice.
THE
BILETA INQUIRIES,
1-3
Between
the Marre and ACLEC Reports there appeared
the first
of three specialist reports on technology and legal education in 1991,
namely
the Inquiry into the Provision of Information Technology in UK Law
Schools
(sometimes referred to as the Jackson Report, after its Chair, Bernard
Jackson). The reports were unique in
that the first two attempted to gather data and write a UK narrative of
current
law school use of technology – a task not undertaken in any other
jurisdiction
until then. After reviewing data from 30
university law schools, 18 polytechnics and the profession, in its
Executive
Summary the first Report concluded there was a growing expectation that
law
graduates would have operating knowledge of and skills in IT, and
defined those
skills as being largely those of legal research and the operating of
office
equipment. Furthermore,
the
Committee advocates the view that the skills associated with the new
technology
are of such importance that proficiency in this field must now be
viewed as an
integral element in the education and skills development of all
undergraduate
and postgraduate lawyers […] regardless of the means (BILETA
1991, 45)
The
BILETA Committee set a range of minimum input standards for the
development of
hardware and software in law schools, in part as a political gesture to
enable
law schools to negotiate budgets within their institutions –
standards that
included ratio of computers to students, the uses of dedicated
computing labs
and support staff. The Committee
recommended a brief mandatory course for all undergraduate law students
that
would be skills-based, with little in the way of theory, the emphasis
being on
practical aptitudes relevant to both academic and professional studies. The skills involved general information
technology skills (use of operating systems such as DOS and Windows),
legally specific
information technology skills (use of LEXIS and databases on CD-ROMs,
and
computer-assisted learning [CAL]), and IT law (including IP rights,
data
protection and the like). While
eminently sensible, the problem with this approach was that it tended
to
de-theorize the whole emerging discipline of law, technology and
education,
relegating education to training in tool manipulation.
And although these were seen as minimum
standards only, the recommendations arguably did not support those who
wished to
think more creatively and interdisciplinarily
about
the relationships between law, education and technology.
The
Second BILETA Report (1996) updated the first, making comment on
curricular
integration. The Third Report, followed
the same theme of integration, as Maharg
noted in his
BILETA Chair’s Report for 2004. Initial work on a pilot for the
Third Report threw
up a number of significant issues, however, and it became clear that
the format
and content of previous reports would not be suitable on account of the
changes
that had occurred in both ICT and legal education since the publication
of the
Second Report, in July 1996. In
particular, it became clear from discussions and soundings taken
elsewhere,
that use of IT had become much more embedded in Law School practice
(teaching,
administration, and student use), and that it was more appropriate now
to
consider ICT within the context of wider changes taking place within UK
law
schools.[14] Coincidentally, the BILETA Executive learned
that there would soon be a second version of the Legal Education
Research Group
(LERG) Survey of Law Schools. The
Executive
were faced with a dilemma: whether to create their own questionnaire
and
research methodology, or to join forces with the LERG Survey, who were
happy to
consider the addition of an ICT section to their questionnaire. It was decided to merge the two reports. A member of the BILETA Executive piloted a
questionnaire and after revisions, the questions were then passed to
the LERG
group, and were incorporated as a new, final section in the
questionnaire
dealing with ICT issues in law schools.[15]
In
summary, then, the BILETA reports were largely surveys of IT use within
law
schools. While they publicised the
technology’s role and the gradual development of those roles,
they had little
to say about the application of educational theory, the construction of
new
theory within legal education, or the forms of regulation appropriate
to the
new context of learning and teaching. Their
value to law schools and to bodies such as SLS, ALT and others was
significant
at the time for they clarified which technologies were used to which
purposes. They also revealed the gradual
process of convergence within law schools – of stand-alone
software
applications such as IOLIS within programmes of study, of the rise of
applications such as Learning Management Systems (LMSs), and the
general use of
IT to support administrative and financial functions within law schools
and
universities generally.
ACLEC REPORT, 1996
The ACLEC
Report was perhaps the first major report in England and Wales on legal
education to take seriously the role of technology.
It was the first to gather and use substantial
field data on education (as opposed to the citation of largely
administrative
data by earlier reports, with little in the way of educational comment). In the field of technology it made use of the
First and Second BILETA Reports, and cited theoretical overviews such
as Abel
on legal professionalism (1988), Peter Clinch’s work on law
libraries (Clinch
1994), and took account of the detailed fieldwork undertaking by Harris
et al
(1993; see also Harris and Jones 1996).[16] Linking all this with what the report authors
saw as ‘significant advances in the incorporation of new
technology into legal
practice and the wider legal system’, the report argued inter alia that the profession itself needed to educate
itself
about the role of technology in legal practice, and that ‘if
the legal profession is to meet the threat to its traditional markets
posed by […]
other sectors, it must itself be educated and trained in the wider
applications
of technology for the purposes of knowledge-manipulation, practice
management
and quality control of services, and product analysis and
development’ (ACLEC
1996, 15). The use of information
technology was included as a ‘general transferable intellectual
skill’ in the
Report’s illustrative statement of outcomes in the Annexure to
the Report
(1996, 59); and technology was stipulated as a significant
‘input’ into the structure
of degree programmes of study, along with
library
provision and buildings. The Report
authors recommended that clear guidelines should be set for the
provision of
information technologies (1996, 85), noting the work that had already
been
undertaken on this by the Second BILETA Report.
Given the
lack of educational thinking in the earlier legal education reports I
have
noted above, and the lack of educational experience in their Committee
members,
it is no surprise that ACLEC set about to change this.
The members of ACLEC were drawn from wider
constituencies, including the Lord Chancellor’s Advisory
Committee and academics
expert in legal education. Their
research took in study visits to New York, Leiden and the then European
Court
of Justice as well as liaising with educators and practitioners in
Australia,
Japan and Canada. Their vision described
an education for democracy, to which legal educational standards were
specifically linked (eg the report’s
advocacy for pro
bono services).[17] All this contributed to ACLEC’s more
sophisticated concept of both educational standards and regulation of
those
standards.
And yet
from the point of view of technology, and particularly the digital
revolution,
ACLEC had little to say that was integrative of technology and legal
education. There is in the report an
emphasis on the insertion of skills into curricula, and the Report
noted that
knowledge of technology was becoming increasingly important for
professional
practice. But for all its
interdisciplinary
thinking about education, there is little in the way of an overview of
research
on learning technologies in ACLEC. There
had been international conferences since the late 1980s on hypertext
and its
multiple uses; and in the decade to the publication of the ACLEC report
there
were numerous technical advances.[18] Indeed some of the core components of WWW had
been in existence since the 1960s, for instance the practice of
packet-switching, and of protocols such as TCP/IP.[19]
Taking a
broad view of internet technologies, a consideration of both theories
and
practices inevitably involves reading the anthropological and
sociological
literatures that grew up around them, which in turn begins to give a
sense of
the huge potential for change, not just in legal education but in
almost every
aspect of legal activity.[20] As Tim Berners-Lee put it in a
justly-celebrated passage, the concept of the world-wide web encompassed
the decentralised organic
growth of ideas, technology and
society. The vision I have for the Web
is about anything being connected with anything. It
is a vision that provides us with new
freedoms, and allows us to grow faster than we could when we were
fettered by
hierarchical classification systems into which we bound
ourselves. (Berners-Lee 2000, 1)
And as the
web spawned multiple manifestations of such connectivity,
anthropologists and ethnomethodologists
such as Lucy Suchman
(2006, first edition 1987) were already sketching an ethnomethodology,
derived
from Mead, Garfinkel and others, for our
understanding of human and machine
intelligence, and in human-computer interfaces that would have profound
consequences for the development of research into games, e-learning,
virtual
reality and much else. Suchman’s
work was influential on a whole generation of
educators and researchers interested in the use and effects of
technology (eg Streibel
1989, Hine 2000, Boellstorff 2008, Peachey
et al 2010).[21] Earlier, Sherry Turkle’s
The Second Self (2005, first edition
1984, and referenced by Suchman) rejects
the
simplistic notion that a computer is a tool to help us produce
documents or
calculations. Instead she posited the
idea that digital machines change not only what we do but in a much
more
sophisticated context, how we think, feel, remember, understand. On a
broader treatment of technology, by ACLEC’s
report in 1996, it was clear that the emerging internet was to become a
major factor
in digital technology development; but there is curiously little said
in the
Report about these changes.[22]
What any
account of legal education required was an understanding of what
digitization
was doing to immense sectors of society, whole industries, ways of
working,
types of employment, including law. To
an extent, the ACLEC Report acknowledged this.
There is reference to the extent of digital innovation in the
legal
sector contrasted to other sectors, for instance. Yet
throughout, the report sectorises legal
education into separate inputs – legal
skills, library resources, academic content, professional content,
technology
as a knowledge of PC technology and its
application in
the legal profession. There is little of
an understanding of the social, cultural and educational meta-issues
that one
meets in the work of Suchman or Turkle,
for example.
Given all
this, the absence of a sense of integration or convergence between
technology
and education is interesting. Such a
sense is paradoxical of course: digitisation
is
nothing if not creative destructionism in
its purest
form, and arguments for the process being one of integration may appear
perverse at best. But in many respects
that is what has been happening in almost all industries affected by
the
digital revolution. The process is
complex, multi-staged, and was already taking place in universities. Indeed it is a process common to most of the
key communicational shifts in western culture.
Much as the first printed books in the half-century or so of incunabula were created to appear as if
they were copied manuscripts (Eisenstein 1980; 2012), so the first
decade or so
of internet-influenced education generally produced an internet-enabled
version
of analogue models. Virtual learning
spaces only really began to be explored in any sense de
novo with the experience of using a variety of digital tools,
and the realization that digital learning could be significantly
different from
earlier forms of learning, teaching and assessment.
That was
already beginning in the early 1990s, and by the time ACLEC’s
report was
published. HE IT large-scale projects
such as TLTP;[23]
the strategic shift of bodies such as JISC from technical digital
infrastructure
into learning and teaching; the publication of edited collections such
as
Lockwood (1995) into internet-based learning and assessment; the
development of
influential theory such as information and network theory (Castells
1989,
second edition 2009), Laurillard’s
conversational
theory (Laurillard 2002), the multiliteracies
and multimodalities of the New London Group (Cope and Kalantzis
1999), the approach to cognitive presence and communities of inquiry
(Garrison
and Anderson 2003) – all these and much more were part of a new
ecology where
e-learning, at first a stranger in the academy, gradually became
converged, practised, theorized as any
other aspect of educational culture.
It is of
course too much to expect ACLEC to have foreseen all this; and indeed
it was
not foreseen by the BILETA Reports upon which ACLEC partly depended. The Report
did argue for ‘integrated learning’
(ACLEC 1996, 65, Committee’s emphasis); but this refers
specifically to
curriculum integration of standards, and to the integration of Quality
Assurance (QA), whereby professional programme
accreditors would ‘delegate quality assurance to [a] new single
audit and
assessment body in respect of those institutions which receive
financial
support through the Funding Councils’; or through a system of
‘linked
assessment exercises’ with professional bodies and the then CPLS
Board ‘adding
their additional requirements for vocational courses and common
professional
studies to the basic HEFC audit and assessment requirement’
(ACLEC 1996,
88). ACLEC grasped the transformational
potential of technology, but could have analysed
it
in more detail. Nevertheless its
achievement is significant. Subsequent
reports such as the Woods Reports and the Training Framework Review did
little
to advance either the subtlety of ACLEC’s educational strategy,
or articulate how
technology and innovation might be integrated with other forms of
education.
This very
brief survey highlights a number of patterns in educational thinking on
technology and innovation in professional legal education reports in
England
and Wales since Ormrod and before the Clementi watershed.
In summary:
·
Educational thinking pre-ACLEC does not match the
complexity
and sophistication of contemporary educational theory and practice.
·
There is an absence of regulatory theory on education
and technology: how should technological innovation be
used in law schools? How should it be
encouraged, sustained and regulated?
·
There is in the reports, as Boon and Webb put it,
‘epistemic uncertainty about the nature of the English legal
education project
and a tendency to respond ad hoc to national, regional, and globalizing
pressures’ (Boon and Webb 2008, 79).
This applies to technology and innovation as well.
Since then,
most of the pressures on undergraduate legal education have come from
political
agendas to increase access and numbers of students within universities,
and the
rise of the policy/audit culture to assess that and other changes
– the rise of
Teaching Quality Assessments, of the Quality Assurance Agency
(incorporated in
1997) and the National Student Survey, for instance.
Also influential has been curriculum specialization,
the rise of a private legal education sector and European integration,
the
roles played by HEFCE and JISC and other bodies with responsibilities
for
development of e-learning and technology in UK HE.[24] The role played by successive RAEs and the
REF (Research Excellence Framework) has done little to link research
and
educational activities in disciplines generally. In
the field of regulation, and in spite of
the general rise of educational technology within universities (White
2007),
few of these agencies addressed the significant problems posed by the
globalization
of the world wide web, which rendered many compliance-based approaches
to
regulation redundant, and made highly problematic the move to
comparative
international benchmarking and the achievement of international quality
standards (Phipps and Merisotis 2000).
Throughout
and until recently, the default position on regulation adopted by both
the
Quality Assurance Agency (QAA) and the two main regulatory professional
bodies
(The Law Society of England and Wales, later the SRA, and the Bar
Standards
Board) had been to regulate input
into educational processes.[25] Influenced no doubt by reports such as the
BILETA reports referenced above, they focused on issues such as
availability of
computer labs, numbers of computers, type of software to be available
to
students including research databases and suchlike.
Only recently has there been a shift to
learning outcomes and a focus on educational output from the use of
digital technologies.
Throughout the period commentators such
as Susskind (1998), Paliwala (2005a), Maharg (2007), Mayer (2005) and others argued
that there
should be a closer fit between technologies in use in the profession
and those
in use not just at the professional stages of education but in
undergraduate
stages as well. In the next section we
shall briefly outline what might be termed, relatively speaking, two
large-scale projects in legal education as illustrative of this
direction of
education design which, as we shall see, have significance for
regulatory
design also.
LARGE
SCALE TECHNOLOGY
PROJECTS IN LEGAL EDUCATION
In the
field of legal education and technology, large-scale funded
disciplinary
initiatives such as the Law Courseware Consortium and its counterpart
in
Scotland, the Scottish Law Courseware Consortium, or the SIMPLE project
(SIMulated Professional Learning
Environment) made valuable
contributions to the development of research and implementation (Paliwala 2005; Hughes et al 2008). Their successes raised issues for regulation
of digital strategies – for example what might be the status of
the large
technology projects in the ongoing narrative of the law school
curriculum? Were they to be pioneers of
educational
technologies, with no other status once funding ceased?
In the SIMPLE report Maharg,
discussing the implications of the SIMPLE project for institutions and
disciplinary educational practices, compared such projects to cargo
cults:
A narrative such as
[the SIMPLE report] often deals with the project subject as if it were
a unique
instance of technological change embedded in an otherwise change-free
curriculum. According to this narrative
technology brings change to a curriculum that is described as an
object; or at
least arrives, as in cargo cults, bearing exotic and mysterious gifts
to the
curriculum. It generates predictable
questions about change – learning gains are demonstrated,
efficiency proven,
usability debated. Often, there are
predictable answers: learning is shown to improve, institutions are
shown to be
conservative in one way or another, implementers and innovators are
implicit
heroes of the narrative. (Hughes et al
2008, para 8.4.7.3)
And he
went on to describe an approach to such projects that took account of
historical process and the place of technology as both an agent of, and
determinant of, complex change not by focusing on technology per se, but on curriculum:
Curricula are not
change-free: their identities shift and move like a glacier. But what if we were to change point of view,
and ask […] whether there is such an object called
‘curriculum’ at all. What if
curriculum itself is technology –
nothing more than the stratigraphic evidence of prior technologies and
their
associated practices and social relations, evidence of technologies
assimilated
and absorbed by institutional practice?
Viewed in this way, technological innovation becomes the
historical
narrative of disruption and change that has always occurred, a process
that has
both a material and social dimension. And as with anthropological
accounts of
cargo cults, the material and the social are both essential to an
understanding
of the phenomenon, and give rise to searching questions about the
cultural
bases of and intentions behind IT introduction and adoption on the one
hand,
and institutional practice and conservation on the other.
The findings of a project such as [SIMPLE]
are deeply unsettling because they call up questions about what we
think
teaching and learning actually is, and how it happens in our
institutions. (Hughes et al 2008, para
8.4.7.4)
Viewed
historically, then, large-scale projects such as IOLIS and SIMPLE (and
there
are others) reveal how institutional change within universities is
essential to
the process of embedding innovative technologies within disciplinary
curricula. But it could be argued that
the reverse is also true: the embedding of innovative IT deep within
disciplinary curricula is essential to bring about institutional change.[26] Paliwala addressed
similar issues with regard to IOLIS.
Reviewing the decade of the project and its pedagogies, he
called for a
reconceptualization of IOLIS as content resource, to one of a learning
development resource that could be shared, customized and used within
an online
collaborative commons (Paliwala 2005).
Both Paliwala and Maharg raise
questions that bear upon regulation of learning technologies: the
cultures and
contexts of learning the ethical dimensions and the unique and often
hidden
histories of technologies in use. In his
wide-ranging cultural essay on the history of IT in legal education, Paliwala explored the ‘pedagogical
issues’ that ‘shape all
technological eras of learning’ (Paliwala
2010). Arguing that ‘the adaptation
of learning
technologies for legal education has been influenced by prevailing
pedagogies’,
he points out that ‘learning technologies have to be created and
adapted within
the cultural context if they are to be effective’.
Maharg emphasized
the potential for learning technologies to transform the administration
of
justice and legal education, taking his stance from research on New
Media, the
history of communications and ethical and moral philosophy. He argued for the development of
‘”resistant
readings” (Kress 1988, 7) of the educational canon; and for an
understanding of
how past technologies affect what we do now, and enable us to discern
future
developments.[27]
Technology
and
innovation in legal education in Scotland: a comparative case study
If large-scale technology projects have had
some visible impact in the field of legal educational technology, then
regulatory relationship has had arguably a greater if more invisible
impact. In the following brief case
study we can see
how issues arising from regulation of technology were dealt with in
another
jurisdiction, namely Scotland. The
Scottish example is interesting for two reasons. First,
the context for regulation of quality
in Higher Education in Scotland is different to that of England and
Wales; and
this has had two effects, on the background of legal education
generally, and
on the specific culture and reception of technology in Scotland. Second, regulation of technology in legal
education has taken a significantly different path to that in England
and
Wales.
Scottish
legal education is different in many aspects from that of England and
Wales, as
we might expect of a jurisdiction whose history, culture, laws and
legal
structures (courts, judiciary, institutional and regulatory bodies) are
substantially different from those of the other jurisdictions of these
isles.[28] While there is no space here to detail that
history and culture there are two differences that have been
significant in the
reception and regulation of technology and innovation, namely QAA and
the structure
of professional legal education.
It
should be recognised from the outset that QA in Scottish Universities,
having
set out along the same path as the rest of the UK, diverged
significantly when
it became clear that the structures of ethos of QAA did not fit well
with the
ethos of HE in Scotland. Harvey and
Newton described that unease in their trenchant summary of the effects
of
quality evaluation in HE:
At the core, the
contention is that asking an amorphous group of academics to identify
their
strengths and weaknesses and for an agency or ministerial department to
send
out a raiding party to pass summary judgment on the quality of
provision may
ensure compliance to policy or regulation or contribute to some form of
control
over the sector, and it may satisfy the illusion of accountability, but
has
nothing to do with the essential nature of quality.
It is a bureaucratic process quite removed
from either the student learning of the creative research processes,
which, it
is argued, lies at the heart of quality in higher education. (Harvey
and Newton
2007, 226; see also Bamber and Anderson
2012)
Scotland
at first followed the QA model of the rest of the UK from the early
nineties
then, in 2003, following dissatisfaction with this model from
institutions
(stemming from bureaucratic managerialism,
and the
resulting conflict between quality rhetoric and academic discourse
–
Worthington and Hodgson 2005, Cuthbert 2011), developed its own model
of the
Quality Enhancement Framework.[29] This model was based upon the concept of
enhancement-led quality assurance, where institutions reviewed their
practices
and cultures in a process that was much more student-centred (with
students
actively engaged as part of the process, rather than simply
respondent-fodder),
focused on the longer-term of institutional improvement, and emphasised
reflection and improvement for the future (QAAHE 2015).[30]
Ownership and legitimation of the
process of review was seen as critical to the process of shifting from
audit-policy cycles to improvement cycles.
In addition, the process emphasised self-review though a process
called
ELIR (Enhancement-Led Institutional Review), and the development of
Enhancement
themes by QA Scotland.[31] In more detail, this involved the following
activities:
·
Enhancement Themes[32]
·
enhancement-led institutional review (ELIR)
·
institution-led quality review
·
the engagement of students in quality management,
including the support
provided through the national independent development service, Student
Participation
in Quality Scotland (SPARQS)
·
institutional provision of an agreed set of public
information.
The
problems inherent in this approach are not trivial.
Training of staff evaluators, and students
engaged in the process is essential, not least in helping participants
to relinquish
the core ideas and behaviours inherent in what is increasingly viewed
as a
discredited QA process, but one that is nevertheless locked into other
powerful
status indicators. As Westerheijden
points out, the gravitational pull of QA
processes, weighted by other factors such as Europeanisation
and the rise of global university and subject rankings, is hard to
resist (Westerheijden 2013).
In Scotland, however, the development of the nation’s HE
partnership has
succeeded to a considerable extent in doing that. As
Land and Gordon point out, key to this has
been the quality of mutual trust arising from shared culture and sense
of
community. (Land and
Gordon 2013, 82). They go on to
quote the Lancaster University team that reviewed the first phases of
implementation of the QEF, on the subject of the ‘theory of
action’
underpinning the QEF:
‘”[t]his
enabled a familiarity, an ownership and a legitimation that other forms
of
implementation strategy might find hard to emulate.
We term this a theory of ‘consensual
development’”’[33]
While
rejecting the notion that the Scottish approach is directly
oppositional to
QAA, Land and Gordon do point out that underpinning enhancement is a
strong
focus on three elements: quality culture, high-quality learning, and
student
engagement. They note the factors in UK
HE that mitigate against such elements, and against the development of
consensual development – the pressure of the Research Excellence
Framework
(REF), the National Student Survey (NSS), the clash of orthodoxies
within one
organisation, namely QAA (ie policy/audit vs enhancement), the demise in 2011 of
organisations such
as HEA’s Subject Centres that promoted enhancement at the vital
level of
practitioner and disciplinary management, further austerity measures
with a
concomitant reliance on further New Managerialist
practices, and the habituated practices of disciplines and professions
(Land
and Gordon 87-90).
Before
2008 or so, the Law Society of Scotland’s Education and Training
Committee had
no guidelines on or regulatory policy for technology in legal education.[34] The first statements were drafted for the
then new professional education programme in 2008.[35] These were the first statements on technology
issued by the Law Society, and they were generally constructivist in
nature,
for example pointing out that ‘web-based simulations of legal
office
environments and transactions are useful ways for students to learn a
range of
practitioner skills’ (Maharg 2008,
15). This is in contrast to the situation
in
England & Wales where the approach to the regulation of technology
in the
professional domain following reports subsequent to ACLEC consisted
largely of
statements of mandatory inputs and specific approaches that
providers were required to follow.[36]
At
this period, the Law Society of Scotland undertook a jurisdiction-wide
consultation on the structure and content of the professional education
programme, as a result of which many aspects of the programme were
reviewed and
altered. Perhaps most significantly, the
curricular aims and objectives of the substantive subjects of the
Diploma in
Legal Practice (renamed Professional Education and Training, 1, or PEAT
1) were
rewritten as learning outcomes while skills, which had not been
formally
defined in terms of objectives, were now described in detailed learning
outcomes. Stemming from the results of
the wide consultation, and from the research into good professional
practices
in other jurisdictions and other professions carried out by Maharg
and others, the focus for both skills and substantive and procedural
legal
knowledge became grounded upon the foundation of professionalism.[37] The legal skills domains of the entire
three-year
programme were re-conceived as the communicational aspects of
professionalism;
and their outcomes were defined and drafted as subjects within that
framework.[38]
Without
attempting to ‘teacher-proof’ the curriculum, the learning
outcomes demonstrated
the practices that the Law Society wished providers to demonstrate. Thus technology was embedded within other
communicational skills, eg outcome 4 of
Writing and
Drafting included the demonstration of the ‘use of a precedent
bank of styles
to progress a transaction’ (Maharg
2008). Under ‘Transactional
Research’, outcome 4
stated ‘Use appropriate legal research instruments, both paper
and electronic’.[39]
It
was in the minor domain entitled ‘Use of Technology’ that
innovation and
technology was foregrounded in PEAT 1.
The skills involved use of digital telephony, email, e-drafting
tools
and an understanding of ‘how technology is used in at least three
areas of
legal practice in Scotland, including the administration of
justice’. The positive indicators
for this included the
following:
[A student k]nows
and
can explain how technology affects current legal practice in Scotland
in three
areas of legal practice (eg document
assembly, case
management, practice management systems, use of e-communications); can
discuss
direction of future trends in legal office technology
The
skills therefore included future-oriented thinking about technology. This is an odd item to be a skill, at first
glance. The skill, however, lies in the
integration of present knowledge (which assumes that students will seek
to know
what the present situation is for Scots law, possibly in other
jurisdictions
too), with thinking about the future, based on their own experience,
and those
of others in the profession. Knowledge
and skill, past present and future, and the convergence of media
platforms are
thus key vectors in this minor domain, which is above all collaborative
in its
nature – which is why it lies within the major domain of
Communications, which
in turn is sited as a critical component of Professionalism.
Two
further points are worth noting. First,
if the learning outcomes for students involved learning by
collaboration, it
was a concept encouraged by the regulator among providers of
professional
education in Scotland. Some providers
already worked together collaboratively.
Strathclyde and Glasgow universities’ law schools were
already working
closely in the joint Glasgow Graduate School of Law (Maharg
2011). GGSL also collaborated with
Stirling University Law School on multimedia and webcast use and
development,
and with the Society of Writers to the Signet on professional
programmes.[40] There was also an attempt by one provider,
namely the GGSL, to develop a Community of Practice in PEAT 1, outlined
at the
2009 UKCLE Conference, ‘Enhancing Legal Education in
Scotland’, held in
Edinburgh.[41]
Second,
the regulatory structure comprised two significant elements. It was based on a detailed understanding of
learning outcomes, how learning outcomes could clarify the design of
the
programme for all concerned, and be a tool to encourage providers to
innovate. Beyond that, the
regulator’s accreditation
process also encouraged innovation in the programme – not only in
the design of
teaching interventions, but in links with the profession.
Regulation is also based upon close contact
with providers, so that the relationships between regulator and
regulated was
less of a top-down monitor regime, and more of a conversation, with
both sides
learning from each other. This is of
course easier to accomplish in some respects in a smaller jurisdiction
(though
there are difficulties too arising from that); but there is no reason
why it
cannot be attempted on a larger scale.
LETR’s
position on
technology and innovation
One
of the key regulatory shifts that took place as a result of LETR (and
few
critiques subsequently have noted this) was from a narrow focus on
content or assessment
(as in the Training Framework Review and other reports) to the
discourse of
standards enacted through learning and teaching. The
regulatory space thus shifted from static
statements of knowledge, skills and values to the organic interaction
of these
statements and their assessment by a wide range of partners in a
complex
learning process. Central to the
regulation of this interaction, LETR argued, was a clarification of the
roles
of the regulator. In highly complex
cross-currents of regulators and their separate regimes, standards,
outcomes
and procedures for qualification the passage of self-development,
social
learning and professional formation was well-nigh unnavigable for
students and
trainees, and ungovernable for regulators.[42]
While
it was clear from the evidence gathered by LETR that the potential
convergence
of regulators into one frontline über-regulator was not
regarded as useful or workable, the relationships between regulators
clearly
required to be re-considered.
For this and other reasons LETR argued for
greater consistency of standards, and higher quality across the system,
particularly in the learning of legal ethics, skills and
professionalism and in
forms of assessment (LETR 2013, Recommendations 1-3, 6-7, 11); for
flexibility in
LSET based upon learning outcomes, not fixed time served upon
programmes of
study (LETR 2013, Recommendations 10, 12, 15); and for addressing the
damaging
effects of access barriers to legal education and the profession (LETR
2013, Recommendations
20-22). It also recommended the creation
of a single source of information on legal careers and in-depth data on
the
legal services market, particularly for employment and education.
Against
this educational backdrop, what did this approach allow LETR to say
about
innovation and technology? Following its
problem-based methodology (referenced above), the research team took
four
approaches:
1.
Commission of a report by Richard Susskind
on the future of legal education and professional legal services[43]
2.
Fieldwork, gathering data on technology
use, particularly in skills domains, eg
information
search skills, to identify perceived issues
3.
Comment from the academy and the profession
on use of technology and innovation in LSET
4.
Analysis of the regulation of technology
and legal education, including comparison with other professions and
jurisdictions.
Susskind’s
work was valuable for its analysis of legal service and digital
technologies
generally, and the place that legal education can play in helping
students to a
critical understanding of it as part of the professional world. The broad features of Susskind’s
sustained analysis
of legal services are there in his report – the role of IT in
speeding up
traditional high value service, ie
automation; the
commoditisation of standard and repetitive legal service; the emergence
of
technology as innovation in meeting latent and as yet unmet legal
service; the
role of technology in creating new forms of legal employment. When his report is set within the context of
the wider research on the effects of global knowledge economy, of
ubiquitous,
digital always-on services, and theories of the network society, long
waves,
techno-economic paradigms and much more, it becomes a useful probe into
the
relationship between not just professional legal education and
technology, but
between any form of legal education
and technology.
Following
Susskind, the main LETR report noted the implications that technology
has for
employment in the legal market, the creation of new forms of
employment, and
the impact of this upon LSET and also the undergraduate law degree
(LETR 2013, para 3.96).
Considering
the research data, particularly on skills,[44]
the report drew the comparison between education in
and through technology
within the accountancy profession, and the situation in legal education
(LETR
2013, para 4.17).
The authors called for ‘a greater
understanding of the transformative potential of information
technology’ that
involved understanding future directions of technology creation and use
in
society and the law (LETR 2013, para 4.70)
REGULATION,
SHARED SPACE
AND INNOVATING TECHNOLOGY
The
regulatory options for legal education open to the LETR team were not
all clear
from the evidence we gathered from our fieldwork. Deregulation
was never an option, and top-down
New Managerialist QA-type regulation would
not work
within a professional regulatory framework that had adopted an OFR
(outcomes-focused regulation) approach to regulation.
Independent regulation and self-regulation of
providers would run contrary to the statutory duties of both LSB and
frontline
regulators as well as to both QA and QE.
The solutions that LETR proposed (following the research
methodology set
out in the Introduction above) were syncretic,
and a
combination of approaches such as multi-modal regulation and risk
compensation
theory (Adams 1995).
Viewed
from the standpoint of technological innovation, from both previous
research
and the direction of regulation in OFR, two proposals were possible:
first,
treating technological innovation as integral to both legal education
and legal
service provision, and second, adapting forms of responsive regulation
(Ayres
and Braithwaite 1992; Nicolson and Webb 1999).
Technology is implicit in every form of academic and
professional
learning. We have already seen the first
at work in the gradual convergence of technology and education over the
last
three decades. Responsive regulation
argues for a dialogue between regulator and regulatee,
with strong top-down sanctions held in reserve.
In LETR, the research team followed Scott (2012) and Parker
(2002) on multi-modal
regulation, but took this further, developing a model of ‘shared
space’
regulation.[45]
The
literature on this was reviewed in chapter 3 of the Literature Review,
in the
context of Conduct of Business Regulation, and its potential outlined;
and it
was explored with other aspects of educational and regulatory activity
in the
main Report. We designed a framework
that would be based on defined outcomes and standards, and which would
take
account of the main features of OFR.
We
described a version of an approach called ‘shared space’
(adopted by others
such as Adams, as we noted in the Literature Review), which goes beyond
Parker’s argument that hierarchy is the best regulatory tool to
steer
self-regulation (Scott 2012, 82). In
Scott’s model, regulators observe and identify the
‘mechanisms at play’; then
they work out ‘ways to key into those mechanisms, to steer them
towards desired
outcomes’ (Scott 2012, 82) – mechanisms that also include
competition and/or
community as well as hierarchy.
The
steering metaphor is Scott’s own, but it points us in the
direction of an
example of multi-modal regulation that fits legal education, namely
road
traffic regulation. Innovators of
‘shared space’ regulation in road design reduce road
furniture and signage,
erase cues such as kerbs and uproot traffic lights.
They design closely for local situations,
observing and giving space to lines of desire and eye-lines for all
road
users. They bring together vehicles
(private and PSVs), cycles and people in ambiguous contexts, and in
doing so
transform civic space by deliberately integrating traffic ‘into
the social and cultural protocols that govern the rest of public
life’
(Hamilton-Baillie 2008, 161). They give
responsibility back to drivers and create environments where that
responsibility needed to be exercised much more actively than in
conventionally-designed road contexts. In
doing so they foreground the subtler but still important elements of
travel
psychology — the crucial part that eye contact plays in slow-road
encounters as
an indicator of intention, for instance, or the psychology of
perception, or
the role that taken-for-granted safety devices such as traffic lights
play in
decreasing road user attention and increasing risk-taking. Road
traffic
regulation is of course a multi-modal regulatory space, and shared
space
innovation is one approach amongst many in the culture and semantics of
urban
traffic, but in the right context and designed well, it works because
it takes
account of agency, and redistributes responsibility.
There
are many ways that shared space can be applied
to the spaces of legal education. Academic
learning environments can be over-engineered with learning outcomes,
module
handbooks, reading lists, information on assessments and much else. Helpful though some of this can be, it can
diminish
student responsibility, curiosity and attention, and institutionalise
the process
and product of learning. Learning
outcomes are in many ways an essential foundation for good governance
of legal
education, but alone they are insufficient to deal with the ethical
complexities of legal education, as I pointed out in 2007, and for
these
reasons:
Alone,
and acting as performance criteria or learning outcomes, such
statements can
become impositions on students, setting up a dialogue of learned
helplessness.
If these are the criteria of assessment, students argue reasonably,
show us
examples of acceptable performance that we may copy. For students, the
focus
thus moves from organic development of self to the copying of forms of
behaviour and rote resumption of knowledge. Performance criteria thus
become
ever more detailed, and student performance
ever more
baroquely imitative in order to comply with assessment criteria. In
this
environment the space for the growth and development of ethical
awareness is
diminished. What is required is the first-order ethical structure that
arises
not from the ethical intuitions of students or staff, nor from the
impositions
of a set of ethical guidelines, but from the moral dialectic of self,
profession and society. (Maharg 2007, 112)
That
'moral dialectic', paradoxically, is not
developed by putting up ever more signage saying do this, don't do
that, be
here at this time, study that text in this way. If we want
students to be
responsible learners, civic citizens, just and ethical lawyers then,
much as we
want drivers to be responsible citizens behind the wheel, we need to
re-design aspects
of the learning landscape along the lines advocated by shared space
regulation.
The
ethical dimension extends to the use of technology in legal education;
and two
points are relevant here. First, if
technology is such an important aspect of legal practice, and if our
lives are
imbricated with digital technologies at every turn, it behoves us in
the
academy to help regulators design regulatory models where student
development and
learning is the first priority, and technology is used to that end. Regulation itself thus becomes a shared
space, modelling the shared spaces between students, between providers,
between
the academy and the profession, between academic and professional
educators in
the law school, between law school and society.[46] Most of these spaces are difficult to build
and sustain without regulatory support.
But as we pointed out in LETR, the co-ordination of regulation
across
the frontline regulators as well as others involved in the regulatory
hierarchy
is essential to good governance.[47] For this reason, Recommendation 25 in LETR,
which in many respects is threaded through most of the other
Recommendations,
is an important theoretical and practical innovation:
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). (LETR 2013, xviii)
Secondly,
there has since the early days of the internet been a strong voice for
the
collaborative power of the web in human affairs, as we have seen above. Web design has always been an
interdisciplinary activity, in which new partnerships are formed
between what
had hitherto been disciplinary silos.
Examples include the development of video conferencing (Anderson
et al
2001), collaborative online spaces (Buxton 1992), and collaborative
augmented
reality (Billinghurst 1999).
Collaboration across disciplines and within
educational applications was built into the large-scale legal learning
technology projects we have considered above, namely IOLIS and SIMPLE,
and at
many different levels. Shared space
regulation would, we hoped, therefore encourage many aspects of such
technological
innovation to flourish and to be sustainable within LSET learning
communities –
an approach which is urgently required.
update:
LETR, shared
space, technology and innovation
The
LETR report was published in June 2013. Following
its publication, there has been some movement on implementation of its
Recommendations. The SRA and BSB have
committed to developing
competency frameworks, and the SRA has also committed to an
outcomes-focused
CPD framework; and the SRA and BSB are collaborating on a common
competence
framework.[48] The regulators have abolished the Joint
Academic Stage Board (JASB), with providers now self-certifying their
compliance with the Joint Statement and QAA or QE standards. On technology and innovation the SRA has made
general statements about the need to take into account technological
change,
and for it to be given prominence in any new regulatory code. The Bar has given approval to some of LETR but
on the subject of technology and innovation its response is still too
conservative, with little understanding of the range or pace of radical
change that
is required:
[W]e must allow
training providers to take advantage of innovations in training –
for instance
in the way that information is shared with the student.
Modern online delivery techniques (such as
webinars and e-learning) might prove valuable.
The
response from the UK legal academy in general to LETR, but in
particular on
technology and innovation, has been disappointing.[49] Neither the special issue of The
Law Teacher (2014, 1) nor an edited
book collection (Sommerlad et al 2015)
address key
issues for technology and innovation outlined in this article, and at a
time
when technology is a critical driver in professional education, and
when both
technology and innovation is also a critical component in the
marketization, financialisation and
privatisation of HE generally and law
school curricula in particular. Advanced
use of digital communications technologies developed by private
providers, and
in particular by publishing and media corporations such as Pearson will
in the
future play a key role in the digitisation of legal education.
Internationally,
there have been more focused responses to the issues that faced the
LETR
research team. Following LETR, there has
been a movement by regulatory bodies towards a greater recognition of
the role
technology plays in LSET in at least two jurisdictions.
In both the USA and Canada there has been an
acknowledgement that more responsive regulation and more understanding
of the
meta-regulation of technology and innovation is required.
In the USA the ABA Task Force Report observed
that innovations in legal services required greater understanding and
use of
technology in law schools, and that ‘only a modest number of law
schools
currently include developing this competence as part of their
curriculum’ (ABA
2014, 14). It called for the
accreditation system to facilitate innovation, observing that
‘current
procedures under which schools can seek exceptions from ABA Standards
in order
to pursue experiments or innovations are narrow and
confidential’, and
‘energetically restructure the variance system as an avenue to
foster
experimentation by law schools and open the variance process and
results to
full public view.[50]
In
its report published in 2014 the Canadian Bar Association declared that
technology, along with innovation and liberalization of legal services,
constituted the three drivers of ‘transformative forces’
changing the Canadian
legal profession (CBA 2014). At 4.1 the
Report explicitly links analysis of professional use of technology with
legal
education, not just for CPD purposes, but for Canadian law schools as
well.[51] It urged law schools to innovate, and many of
its recommendations on legal education echo those in LETR – the
adoption of new
models for legal education, enhancement of problem-solving in the practising world, focus on learning outcomes,
easing
restrictions on students in legal clinics, structured, consistent,
rigorous
pre-Call training, consistent knowledge and skills standards for
certification,
the creation of parallel legal programmes,
and the
improvement of continuing professional development (Recommendations
15-22, CBA
2014, 58-63).
This
contrasts with the relative indifference shown to the subjects of
technology
and innovation by regulators such as QAA in the UK.
The recent revision of the Subject Benchmark
Statement for Law, (Draft March 2015) is typical in this regard. Despite the research findings of LETR, the
redrafted Benchmark Statement contains very little new thinking on
technology or
innovation, and is based upon an input, not an output model of quality.[52] Post-LETR, there are significant changes
to the regulatory landscape, few of which are reflected in the revised
Statement as it currently stands in the consultative version. Small amendments that shift emphases on
skills and values rather than knowledge and skills are fairly trivial
at a time
when the academic community has it within their grasp to make much more
important changes for the better in legal education.[53]
Conclusion
This
article analyses regulatory approaches outlined in LETR that can
enhance and
transform the culture and practices of technology and innovation in
legal
education in England and Wales. They are
sorely needed. At a time when the
complexity, flexibility and cost of access routes to a profession in
the law
will increase; when we see marketisation
and
privatisation of legal education increasing and the entry into the
market of
for-profit enterprises whose investment in technological platforms and
approaches is more advanced than many law schools, we must question our
attitude
to the regulation of technology and innovation.
In
place of close specification of hours or modes of learning, we need an
emphasis
on common competence frameworks to clarify what, in the new domain of
technology skills and knowledge, we need our students to know and be
able to
do. Top-down regimes such as QAA and
highly monitoring regulatory codes typical of those promulgated by
professional
bodies in the past will no longer suffice to enhance quality of
learning.[54] As a version of hierarchy QA has a role to
play, but it is becoming increasingly discredited.
We need versions of quality enhancement, ‘consensual
development’, shared space, collaboration and dialogue at every
level of legal
education. At a time when institutions
such as the invaluable subject centres (for us in Law, the UK Centre
for Legal
Education) have been closed down, we need the institutions, the funding
and
above all the commitment to collaborative work in order to improve
legal
education, and this applies to the work of regulators with those they
are
regulating. If this is so in legal
education, it is also the case with technology and innovation. Digital technology is no longer an option for
us in legal education, for it is incorporated into our already existing
repertoires of sociocultural activities in telecommunications, houses,
cars,
travel, finance, law, medical care, and much else – in use in
such informal
learning environments, why would we not use it to learn in formal
education? As we have seen, what matters
is how we form our
relationship with it, with those who use it, with those who own it, and
with those
who regulate it.
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