The wrong story: legal education, ethics and shared space regulation

Professor Paul Mahargpaulmaharg.com/slides

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

on experiential learning.

1. Re-design ethical learning in legal educationShape the future with regulators, redesign relations between academy & profession, recast

curriculum design, learn & implement from other disciplines, professions, jurisdictions.

2. Map and improve the research on ethics & legal education generallyMany gaps; almost no organized research programmes; insufficient historical understanding of

sub-disciplines and practices; little shared understanding across the field

3. Encourage new ways of understanding how ethics can be understood and practised

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1. What does LETR say about ethics & legal education?

some definitions…• Outcomes-focused regulation:

– Derived from general principles of good regulation– Eight regulatory objectives specified by s.1, LSA 2007 (see chapter two, LETR

Literature Review)– Key recommendation of the Clementi Review (2004)

• Risk-based regulation:– The adoption of regulatory strategies based on ‘an evidence-based means

of targeting the use of resources and of prioritizing attention to the highest risks in accordance with a transparent, systematic, and defensible framework’ (Black & Baldwin, 2010, 181)

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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

centrality of professional ethics & legal values• ‘Ethics’ mentioned 145 times in the Report, on 71/350 pages:‘The centrality of professional ethics and legal values to practice across the

regulated workforce is one of the clearest conclusions to be drawn from the LETR research data, and yet the treatment of professional conduct, ethics and ‘professionalism’ is of variable quality across the regulated professions. There was general support in the research data for all authorised persons receiving some education in legal values and regulators are encouraged to consider developing a broad approach to this subject rather than a limited focus on conduct rules or principles.’

Executive Summary, p.xiii

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key recommendations on ethics‘Recommendation 6LSET schemes should include appropriate learning outcomes in respect of professional ethics, legal research, and the demonstration of a range of written and oral communication skills. Recommendation 7The learning outcomes at initial stages of LSET should include reference (as appropriate to the individual practitioner’s role) to an understanding of the relationship between morality and law, the values underpinning the legal system, and the role of lawyers in relation to those values’.

Executive Summary, p. xiv

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ethics in context‘The research data make no clear-cut case for either extending or reducing the existing Foundation subjects; in particular there is no consensus to include professional ethics as a discrete Foundation subject. At the same time, in the interests of transparency and consistency for students and employers alike, there is a case for providing some additional content prescription and guidance on the balance between the Foundation subjects.’

Executive Summary, p.xiv

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evidence…?

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• Professional ethics also one of the commonest suggestions for addition to the Foundation subjects

• Is the priority accorded ethics reflective of the shift to outcomes-focused regulation and risk-based regulation?

• Ethics is seen as a critical defining feature of professional service

• Commercialisation viewed as a threat to the profession’s ‘moral compass’ (solicitor)

OFR & ethics education• Boon argues for ‘situational ethics’ approach – different

from a ‘rules-based’ system• OFR will require management skills & processes in

entities to cope with risk-based regulation – especially in context of ABSs

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2. Re-design regulation of ethics in legal education

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 of regulation: 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)

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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 thatas long as you behave this way,

nothing can happen to you”. That is the wrong story’.

Hans Monderman, http://bit.ly/1p8fC3u

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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

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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).

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3. Map and improve ethics and 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)

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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

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current initiatives…

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• It’s open source and free

• It’s an international collaboration

• It combines both theory and practice

• It’s open to interdisciplinarity

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.

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example: longitudinal research

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• Do we do the same for ethics?

• If not, why not?• What might a longitudinal

ethics project look like?

http://bit.ly/18WavXV

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• Do we do the same for ethics?

• If not, why not?• What might a longitudinal

ethics project look like?

• HighScope Educational Research Foundation methodology?

• HighScope method used to develop skills of conflict resolution in pre-schoolers (children aged 18 months – six years).h

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4. Encourage new approaches to ethics education

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example 1: curriculum design• Key question: ethics education for whom, by whom, when?• Eg new designs such as JD or LLB + PBL + online…?• We have a very sparse literature on f2f PBL (eg some major

studies on Maastricht, none on York)• Curriculum needs re-designed around innovative embedding of

ethics projects• Digital technologies need re-designed to facilitate ethics

learning online

example 2

Three projects for student-centred learning in the ethics of access to law and family mediation:1.Sorting out separation – UK government-funded initiative2.Families Change – Justice Education Society of British Columbia3.Rechtwijzer.nl – Dutch Legal Aid Board & University of Tilburg

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project 1

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• Largely advice sheets, videos, calculators

• How might your students get involved in this?

• What would they learn about ethics by being involved?

• How can they put that experience to use in their careers?

project 2

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• Largely advice sheets, videos, • Also includes ‘Changeville’, an

interactive game for children 5-12 years old, offering emotional support and tools, including a list of rights for older children

• How might your students get involved in this?

• What would they learn about ethics by being involved?

• How can they put that experience to use in their careers?

project 3: rechtwijzer.nl

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• Contains advice on separation & divorce

• Integrates f2f service with online information

• Claims to have an ‘interactive service’

• How might your students get involved in this?

• What would they learn about ethics by being involved?

• How can they put that experience to use in their careers?

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Examples 1 + 2 + 3: technology and ethics• 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

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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

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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.

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Email: paul.maharg@anu.edu.auWeb: paulmaharg.comSlides: paulmaharg.com/slides

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