regulatory relationships and legal education: the case of innovation

Regulatory relationships and legal education: the case of

innovation

Professor Paul Mahargpaulmaharg.com/slides

What does LETR say about technology & legal education?Adopt fresh approaches that can improve regulation and the quality of

legal education - focus on experiential learning.1. Re-design regulation of technology in legal education

Shape the future with regulators, redesign relations between academy & profession, recast curriculum design, learn & implement from other disciplines, professions, jurisdictions.2. Map and improve technology & legal education research

Many gaps; almost no organized research programmes; insufficient historical understanding of sub-disciplines and practices; little shared understanding across the field3. Encourage new technologies and understanding of technology

preview

What does LETR say about technology & legal

education?

LETR was asked to address the following issues:1.What are the skills/knowledge/experience currently required by the legal services sector?2.What skills/knowledge/experience will be required by the legal services sector in 2020?3.What kind of legal education and training (LET) system(s) will deliver the regulatory objectives of the Legal Services Act 2007?4.What kind of LET system(s) will promote flexibility, social mobility and diversity?5.What will be required to ensure the responsiveness of the LET system to emerging needs?6.What scope is there to move towards sector-wide outcomes/activity-based regulation?7.What need is there (if any) for extension of regulation to currently non-regulated groups?

LETR remit

1. What are the skills/knowledge/experience currently required by the legal services sector?

2. What skills/knowledge/experience will be required by the legal services sector in 2020?

3. What kind of legal education and training (LET) system(s) will deliver the regulatory objectives of the Legal Services Act 2007?

4. What kind of LET system(s) will promote flexibility, social mobility and diversity?5. What will be required to ensure the responsiveness of the LET system to emerging

needs?6. What scope is there to move towards sector-wide outcomes/activity-based regulation?7. What need is there (if any) for extension of regulation to currently non-regulated

groups?

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

LETR remit

skills comparison across time

24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 6

Evidence base:•four interviews conducted specifically for LETR•a series of interviews across the profession•his own on-going research and consultancy activities, including two extended interviews with experts about professions outside law, six confidential discussions with leading practitioners (including General Counsel and senior partners in major firms) and discussions with academics and students at three seminars (one in England, one in Holland, and one in the US). •50 face-to-face, interviews carried out last year across the professions, and on insights gained during 2012 from five client consulting projects (three leading law firms and two in-house legal departments). (Appendices, 1.24)

Susskind: Provocations & Perspectives,

Briefing Paper 3/2012

LETR & technology in liberalised legal services

• ‘regulation and technology, as the scenarios suggest, both have the potential to transform the demand side of the market’ (para 3.6)

• There is use of ‘technology to enhance communication, information access, data management, and workflow, particularly in conjunction with outsourcing and commoditised practices’ (para 3.74)

• Automation vs innovation:– ‘The capacity of technology to enable things to be done differently rather than just more quickly, easily and/or thoroughly appears to be underestimated by respondents.’ (para 3.88)


‘Technology therefore has longer term implications for the type of legal roles in the marketplace and may contribute to a reduction in the number of traditional lawyers. Some of this number may be absorbed into the kinds of new roles Susskind (2010, 2012) describes for legal information technologists, knowledge managers and legal process analysts. Such roles would also require new technical skills, and a greater understanding of the potential for ICT to innovate, not just automate.’ (para 3.96)

LETR & technology in liberalised legal services


technology in legal education & practice

‘Technology, particularly through increasingly sophisticated forms of blended and e-learning also has the potential to transform the delivery of LSET. One of the questions for the LETR is therefore, how might these technologies connect? In other words, what can those who are planning LSET learn from the use of technology in practice?’ (para 3.86, my emphasis)

1 LETR on tech & legal ed


‘The emergence of new online providers, like LegalZoom and Rocket Lawyer, albeit supported by a human interface, is already indicative of the ways in which the market may be moving. Such online providers may increasingly challenge and substitute for traditional f2f providers, particularly as the technology moves from ‘search engines’ to far more powerful and intuitive “discovery platforms”.’ (para 3.94)

technology in legal education & practice


commercial & social awareness‘There is also a case for including a greater understanding of the transformative potential of information technology under this heading. It is not sufficient to ensure that trainees or prospective trainees understand how technology is used to facilitate current work tasks without also helping them to understand how it can radically change, and is changing, their business models and the way clients may access and use legal information. In this context Richard Susskind’s (2012) suggestion that law schools should include an optional course on developments in legal services deserves to be taken seriously.’ (para 4.70, my emphasis)


1. Re-design regulation of technology in legal education

how not to regulate…1.Debate around US ABA Standard 306 (now 311), restricting distance learning vis-à-vis classroom time:

Standard 311. DISTANCE LEARNINGDistance education is an educational process in which more than one-third of the instruction of the course is characterized by: (1) the separation in time or place, or both, between instructor and student; and (2) the use of technology to deliver instruction.


how not to regulate…2.But now see:1.ABA Task Force Report2.William Mitchell Law School Variation, under Standard 802 (http://bit.ly/1kvD6uR):Interpretation 802-1(b) states the Council may grant a variance for an experimental program if that program is well-designed and the benefits of the experimental program outweigh its risks.


regulating irregularly?• In Australia, the example of the ANU GDLP – innovation that is permitted by a regulator in ACT, with fairly light touch

• True of other jurisdictions?• True of all levels of regulation, in HE, professions, in-institution?

1624 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND |

regulatory alternatives?‘While distance education can be analogized to classroom time, it would seem that a better approach is to think about what we want education to accomplish – knowledge of subjects needed to be a lawyer, inculcation of skills and values necessary to be a good lawyer, and some experiential component – then set out how any program proves that it does so.’ Rakes, W.R. (2007). From the Chairperson. Syllabus. American Bar Association section of Legal Education and Admissions to the Bar, 38(2), 2-3.


Colin Scott’s approach:•‘a more fruitful approach would be to seek to understand where the capacities lie within the existing regimes, and perhaps to strengthen those which appear to pull in the right direction and seek to inhibit those that pull in the wrong way’•‘meta-review’: ‘all social and economic spheres in which governments or others might have an interest in controlling already have within mechanisms of steering – whether through hierarchy, competition, community, design or some combination thereof’ (2008, 27).

tools for analysis: modalities of control

Norms Feedback Behavioural modification

Example Variant

Hierarchical

Legal Rules

Monitoring Powers/Duties

Legal Sanctions

Classic Agency Model

Contractual Rule-making & Enforcement

Competition Price / Quality Ratio

Outcomes of Competition

Striving to Perform Better

Markets Promotion Systems

Community Social Norms

Social Observation

Social Sanctions, eg Ostracization

Villages, Clubs

Professional Ordering

Design Fixed with Architecture

Lack of Response

Physical Inhibition

Parking Bollards

Software Code

Modalities of control (Murray & Scott 2002)


regulatory alternatives?Shared spaces concept in traffic zones:• Redistributes risk among road users• Treats road users as responsible, imaginative, human• Holds that environment is a stronger influence on behaviour

than formal rules & legislation.‘All those signs are saying to cars,

“this is your space, and we haveorganized your behavior so that

as long as you behave this way, nothing can happen to you”.

That is the wrong story’.Hans Monderman, http://bit.ly/1p8fC3u

The Art & Science of

Shared Streets,

http://bit.ly/1p8fr8r

See also Hamilton-

Baillie (2008).


participative regulation• Portrait of the regulator as:

– Not QA but QE – Quality Enhancer, to focus on culture shifts towards innovation, imagination, change for a democratic society

– A hub of creativity, shared research, shared practices & guardian of debate around that hub

– Initiating cycles of funding, research, feedback, feedforward– Archive of ed tech memory in the discipline– Founder of interdisciplinary, inter-professional trading zones

• Regulator as democratic designer


LETR recommendation 25A 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).


2. Map and improve technologyand legal education research

future research needs?1. Map the field & create

taxonomies for research data

2. Organise systematic data collection onlaw school stats across entry/exit points, across jurisdictions (eg using Big Data Project methods)


future research needs?3. Focus on learning, not NSS league tables

– see US LSSSE… and include longitudinalresearch data, not just snapshotsof place & time

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


how might professional bodiescontribute to this?

1. Targeted funding for research initiatives, eg Cochrane Collaboration type of initiative

2. Funding & admin support to start-up and analyze innovation – eg PBL, public education in law, legal informatics,data visualization, etc

3. Financial & other support to enable round tablemeetings with regulators and comparative workwith other jurisdictions – globally

4. Creation and maintenance of a digital hub.24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 26

3. Encourage new technologies and understanding of technology

28

example 1: curriculum design• Education for whom, by whom, when (Harry Arthurs…)?

• Eg JD + online + PBL…?• We have a very sparse literature on f2f PBL (eg some major studies on Maastricht, none on York)

• Curriculum needs re-designed• digital technologies need re-designed to facilitate PBL collaborative learning online


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example 2: DAOs & blockchain technologies

• Open technology platform• ‘Permissionless innovation’• Blockchain code – a shared public register of code

transactions• Decentralized file storage• Decentralized Autonomous Organisations• On-chain decentralized marketplaces for services


which services?• Currencies & sub-currencies, eg Bitcoins - http://bit.ly/1nWUfyT -

decentralized digital cryptocurrencies. See www.bitcoin.org • Almost any financial instrument• Further, more sophisticated platforms,

eg Ethereum, www.ethereum.org• Contracts and wills• Savings wallets• Online voting• Decentralized government• Secure messaging - http://bit.ly/1qtpvpZ • Decentralized data feed• Legal education


legal education DAO• Peer-to-peer• Peer-to-object• Includes learning objects + comms system + badge system

(eg Mozilla Badges) + payment system + other decentralized functions, using identity and reputation system as a base

• Regulation? See regulation of VoiP, and Bitcoins itselfhttp://bit.ly/1jKa4Ex


referencesHamilton-Baillie, B. (2008). Shared space: reconciling

people, places and traffic.Built Environment, 34, 2, 161-81.

Legal Education & Training Review Report (2013). Available at: http://letr.org.uk

Monderman, H. (n.d.) http://www.pps.org/reference/hans-monderman/

Murray, A., Scott, C. (2002). Controlling the new media: hybrid responses to new forms of power. Modern Law Review, 65, 4, 491-516.

Scott, C. (2008) Regulating Everything. UCD Geary Institute Discussion Paper Series, Inaugural Lecture, 26 February.


Email: [email protected]: paulmaharg.comSlides: paulmaharg.com/slides


regulatory relationships and legal education: the case of innovation

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