WG Hart workshop presentation

1. Regulatory relationships and legal education:
the case of innovation
Professor Paul Maharg
paulmaharg.com/slides

2. 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 field
3. Encourage new technologies and understanding of technology
preview

3. What does LETR say about
technology & legal education?

4. 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

5. 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

6. skills comparison across time
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 6

7. 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

8. 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)
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 8

9. ‘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
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 9

10. 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
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11. ‘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
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 11

12. 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)
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 12

13. 1. Re-design regulation of
technology in legal education

14. how not to regulate…
1. Debate around US ABA Standard 306 (now 311), restricting
distance learning vis-à-vis classroom time:
Standard 311. DISTANCE LEARNING
Distance 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.
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 14

15. how not to regulate…
2. But now see:
1. ABA Task Force Report
2. 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.
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16. 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 |

17. 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.
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 17

18. 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

19. Norms Feedback Behavioural
modification
Example Variant
Hierarchical Legal Rules Monitoring
Powers/Dutie
s
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)
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 19

20. 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 have
organized 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
TheArt&ScienceofShared
Streets,http://bit.ly/1p8fr8r
SeealsoHamilton-Baillie
(2008).
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 20

21. 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
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 21

22. LETR 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).
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 22

23. 2. Map and improve technology
and legal education research

24. future research needs?
1. Map the field & create
taxonomies for research data
2. Organise systematic data collection on
law school stats across entry/exit points,
across jurisdictions (eg using Big Data
Project methods)
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 24

25. future research needs?
3. Focus on learning, not NSS league tables
– see US LSSSE… and include longitudinal
research data, not just snapshots
of place & time
4. Provide meta-reviews and systematic
summaries of research, where
appropriate; literature guides, etc
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26. how might professional bodies
contribute 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 table
meetings with regulators and comparative work
with other jurisdictions – globally
4. Creation and maintenance of a digital hub.
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 26

27. 3. Encourage new technologies
and understanding of technology

28. 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
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND |

29. 29
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
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND |

30. 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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31. 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 itself
http://bit.ly/1jKa4Ex
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32. references
Hamilton-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.
24 June 2014Professor Paul Maharg | CC BY-NC-ND 2.5 SCOTLAND | 32

33. Email:paul.maharg@anu.edu.au
Web: paulmaharg.com
Slides: paulmaharg.com/slides
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