Tuesday, November 27, 2012

Does Legal Education Have a Future?

Last night I debated this topic: "Changes in Legal Education: How Should Future Generations of Lawyers be Educated?" at the KCLThinkTank Society. My fellow debaters were Derek Wood QC, Hilary Underwood, and Neil Rose. Mark Potter of the Legal Education and Training Review (LETR) was in the audience.

With exception of Neil and myself, both Hilary and Derek wanted to maintain much of what we already have. Indeed they all seemed to favour the "core subjects" in the law degree (contracts, torts, crime, etc). Even some form of post-graduate skills training and apprenticeship should stay. We all desired standards to be maintained (whatever they are).

Derek Wood and Hilary Underwood represented the bar and solicitors. Inevitably most of their remarks focussed on how legal education should serve these professions. There was for me a feeling of let's not do anything drastic because it isn't all that bad and it's served us well for a long time. This was redolent of Lord Neuberger's Upjohn lecture.

The dissonant note came from Neil Rose who explained how the new legal services market, and ABS, were changing the legal landscape, and that regardless of what lawyers might think things are changing and changing radically.

It has been a long time since we have thoroughly examined legal education. Too much of what we have has been thrown together in a hodge podge fashion. My challenge to the others was why do you assume that the core is sacrosanct? What is your evidence for this proposition? Interestingly one of the students asked how the core came about. No real answer to that one. I was reminded of an LSB seminar where John Randall admitted that the Legal Practice Course was set up without an evidence base. I'm sure the core had a similar inception. I have a feeling too many decisions have been made that way--without evidence and research.

There is nothing wrong in principle with a core, but let's justify it, theorize it, contextualize it. To have students enter university and be thrust into a law degree with little explanation of why it is like it is makes little sense, to them or us. Last night they said that.

In fact the impression I got was that the profession (and I mean that in the confined way the profession often represents itself) is rooted more in the nineteenth century rather than the twenty first. Today we face a globalized world where technology is doing remarkable things that are going to change the ways lawyers and other legal professionals work. See for example this week's New Yorker article on "deep learning" by machines. This extract describes what machines do but it isn't far from what lawyers do: it's like reasoning by analogy
A typical setup is this: a computer is confronted with a large set of data, and on its own asked to sort the elements of that data into categories, a bit like a child who is asked to sort a set of toys, with no specific instructions. The child might sort them by color, by shape, or by function, or by something else. Machine learners try to do this on a grander scale, seeing, for example, millions of handwritten digits, and making guesses about which digits looks more like one another, “clustering” them together based on similarity. Deep learning’s important innovation is to have models learn categories incrementally, attempting to nail down lower-level categories (like letters) before attempting to acquire higher-level categories (like words).
There are challenges to lawyers coming from without as well as within. I don't think the legal profession has really understood the scope of change and challenge. (Read the comments to Law Society Gazette articles online for confirmation of this.) 

In my view we have a golden opportunity to investigate and evaluate the role of legal education and I hope we don't waste it. LETR has a superb research team, but they are constrained by the legal profession regulators who will of course make the final decisions. Perhaps this is my greatest concern that the legal profession might not be the best group to be making these decisions.


Sunday, November 18, 2012

Messing Around on a Sunday.....

I think these two are connected.....I used to have a dog, but now I have a trainer. And I assure you that Katy Mackay doesn't stand around, nor do I when there are too many kettlebells in the world to swing. She makes me swing them with a vengeance.


Friday, November 16, 2012

Evaluating Change in the Legal Services Market

(Do they look very different from the standard pictures of law firm partners?)

The Legal Services Board has published two new and related papers, which everyone interested in legal services should read.

The first is "Market Impacts of the Legal Services Act 2007--Baseline Report 2012". It looks at the entire market from the perspectives of the profession, the consumer, the public, the market, and the investor. It's comprehensive and is intended to provide a baseline from which future evaluations can be made.

It will be soon reviewed by Professor Susan Fortney of Hofstra Law School in New York on jotwell. I think it will be interesting for readers to get an outsider's view of the English legal market.

The second paper is "Evaluation: How Can We Measure Access to Justice for Individual Consumers? A Discussion Paper". The LSB admits this is a complex and complicated area. Its initial definitions in this paper are
     Access to justice is a complex concept to define, with a range of different views on what it means. This increases the challenge of benchmarking levels of access to justice, since we must first define what it is we are measuring if we are to understand how it changes over time, and what actions the ARs and the LSB can take to address any access to justice issues.
     We take as our starting point that access to justice is a positive thing for society as a whole.  A range of research discusses the benefits of access to justice on commercial activity, individual‘s health, and as a check on governmental power. The World Bank statement on legal and judicial reform includes an assertion that ―improving, facilitating and expanding individual and collective access to law and justice supports economic and social development. Legal reforms give the poor the opportunity to assert their individual and property rights; improved access to justice empowers the poor to enforce those rights.
     In any event, improving access to justice is a regulatory objective of the LSA.  However since the LSA does not define it, the question of what is meant by the term access to justice remains.
The LSB is looking for feedback and Robert Cross is the person to contact at robert.cross@legalservicesboard.org.uk.

Finally, if you go to the Legal Services Board website and click through to research you will see the new research web pages, which are rather good.


Monday, November 12, 2012

November's a Busy Time....

Looking through my calendar since starting the Leverhulme fellowship I see November is a packed month for speaking. (Extra case of throat spray--reminder to self.)

  • First off, I talk to the Legal Services Board about the Cab Rank Rule. 
  • Then I head off to St. Gallen University in Switzerland for a talk on globalization and the Legal Services Act.
  • When I get home I go to the Oxford Socio-Legal Studies Centre to talk about the genesis of the Legal Services Act.
  • Now it's time to get some work done.....
  • I'll be giving talk at Westminster to the Law Review on the export of English law and globalization.
  • Which is followed by going to Birmingham to talk about law in the age of austerity for Centre for Professional Legal Education and Research.
  • Then I have a talk on informal insolvency rescue at LSE, which is quickly followed--the same day--by
  • a debate at King's College on the future of legal education.

After a quick excursion to Swindon to chair an AHRC panel, I will head to India to talk about globalization, law and the legal profession.

I'm wondering what I've forgotten.....


Saturday, November 03, 2012

What the Bar is Like--Do We Really Know?

It's difficult getting images of barristers that aren't parodies of themselves. So I have put up two--one traditional (the one on the right) and one in fancy dress (on the left). OK, the one on the right is a trainee barrister being interviewed by the Guardian about wearing plaid...

A couple of reasons for mentioning this. I am finishing a paper with Morten Hviid of UEA on the cab rank rule, which we'll post soon. A simple rule but essentially flummoxing as well.

The second reason is to mention a post by notabarrister, a barrister's clerk who writes on clerking. His latest post is "What is a barrister's clerk?" It probes the history of the clerk and shows how much/little things have changed for the clerk. (One bit of disclosure--I get a passing mention for once having written on clerks.)

As modern as the Bar claims to be, and in many ways it is, it is still as divided as the pictures above. In a way the cab rank rule exemplifies this. Of the the 252,000 people who work in the legal services market, the rule applies only some 12,000 of them, namely self-employed barristers. There is no evidence to support the need for the rule. Indeed, the first lawyer to invoke it got hung, drawn and quartered. Would the Bar be so keen if this sanction were potentially still in force?