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.



John Flood said...

I received this comment elsewhere:

Hilary Underwood, Past Chair Sole Practitioners Group Says:
November 29th, 2012 at 00:22
On the contrary, the legal profession is more than aware of the vastly changing legal landscape and the new legal services market opened up by the Legal Services Act. Indeed, as a profession, we are surely more aware of this than anyone else….our practices are affected by it everyday and that tends to focus one’s mind! The commoditization of legal services, impact of globalization, ABS, commercial and entrepreneurial interests in the legal market, entity-based regulation, growth of LDPs and LPOs, decomposing of legal work, ODR, online legal services, branding of law firms and death of legal aid have rocked the legal profession to the core. And that is not necessarily a bad thing. I am sorry that you seemed to gain the impression that as a profession we were rooted in the nineteenth century…far from from it. I am still (just!) under the age of 40 and aim to be always moving forward and developing my practice. The question as to whether legal education has a future must necessarily be linked with the question of the future of the legal profession – for we must undoubtedly train lawyers for the profession of the future and not the past. The point that I was making was that a legal services market motivated by commercial interests (and this must necessarily be the case for ABS, who will ultimately be answerable to shareholders)undermines the independence of the law and, therefore, undermines the bastion of a democratic society. This will be a legal services market that neither wants nor needs ‘ real lawyers ‘. Instead, it requires a workforce who can re-produce over and over the same tiny portion of a transactional matter. If we are to therefore radically change the future of legal education to satisfy this market,then of course we do not require the core subjects! We need only teach our students the very limited knowledge they will need to function as part of these money-making machines. If we wish to ensure that legal services are delivered properly in the client’s best interests, not those of the shareholders, and without compromise, then legal education must maintain its current core substantive law requirements, for the law requires training and knowledge of the highest quality and the ability to diagnose multiple legal conditions, in the same way as a doctor must be able to spot and diagnose multiple medical conditions. There is a huge danger, therefore, in ridding the QLD of core subjects, or teaching those subjects only within a very limited context, which can only inhibit the students future career development and ability to move into new areas of law. The point of divergence of views on the future of legal education is whether one does or does not support the massive changes currently taking place in the legal marketplace. I clearly don’t….one might say ” Well, she would say that, wouldn’t she? She’s a solicitor and feels threatened. ” It is not self-interest that drives my strong feelings on this….self-interest simply doesn’t exist in the world of the legal aid lawyer, believe me! I am deeply concerned that we shall one day see a similar collapse to the integrity of the legal profession that we have sadly seen in the financial services industry and in the media….greed, I am afraid, always produces corruption. The law is the last bastion of truth, justice and freedom in this country and I am afraid that we shall all live to regret the day the Legal Services Act was passed. The law students of today surely deserve more than the facade of being a lawyer? I do agree, however, that there is a tremendous opportunity to improve the way in which we train our lawyers, both pre- and post-qualification and I hope this will include a far greater cross-over between the academic stage of learning and practice. Great fun debating with you, John, hope we get the chance again one day! Kind regards, Hilary Underwood, Immediate Past Chair of the Solicitor Sole Practitioners Group (the real lawyers!!!)

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Anonymous said...

Professor Flood, you state:-

"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.)"

Why do you insult and patronise people just because they disagree with you? It's unprofessional and unscholarly.

Just because some people are sceptical or critical of certain changes, it does not follow that they lack understanding of the reasons for those changes and the consequences of the changes. You appear to assume that the two strands of thinking are the same, but they are not. As someone else on here has pointed out to you, solicitors do not live in a bubble. They live with the reality of these changes.

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