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The wrong story: legal education, ethics and 
shared space regulation 
Professor Paul Maharg 
paulmaharg.com/slides
1. What does LETR say about ethics & legal education? 
preview 
Adopt fresh approaches that can improve regulation and the quality of legal education - focus 
on experiential learning. 
2. Re-design ethical learning in legal education 
Shape the future with regulators, redesign relations between academy & profession, recast 
curriculum design, learn & implement from other disciplines, professions, jurisdictions. 
3. Map and improve the research on ethics & legal education generally 
Many gaps; almost no organized research programmes; insufficient historical understanding of 
sub-disciplines and practices; little shared understanding across the field 
4. Encourage new ways of understanding how ethics can be understood and practised
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)
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
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
key recommendations on ethics 
‘Recommendation 6 
LSET 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 7 
The 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
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
evidence…? 
• Professional ethics 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 – how? 
• OFR will require management skills & processes in 
entities to cope with risk-based regulation – especially in 
context of ABSs 
• Some (eg Boon) argue for ‘situational ethics’ approach – 
different from a ‘rules-based’ system
2. Re-design regulation of ethics in 
legal education
tools for analysis of regulation: 
modalities of control 
Colin Scott’s approach: 
•‘a more fruitful approach [than pure innovation] 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).
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)
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 
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 
• Regulators as democratic designers, taking their place within a Deweyan 
construct of democratic institutions
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).
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 on 
law 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 longitudinal 
research data, not just snapshots 
of place & time 
4. Provide meta-reviews and systematic 
summaries of research, where 
appropriate; literature guides, etc
current initiatives… 
• 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 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.
example: longitudinal research 
• Do we do the same for 
ethics? 
• If not, why not? 
• What might a longitudinal 
ethics project look like? 
http://bit.ly/18WavXV
longitudinal research in education 
• 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). 
http://bit.ly/1qjTnEk
4. Encourage new approaches to 
ethics education
example 1: curriculum design 
• Key question: ethics education for whom, by whom, when? 
• New foundational 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 initiative 
2.Families Change – Justice Education Society of British 
Columbia 
3.Rechtwijzer.nl – Dutch Legal Aid Board & University of Tilburg
project 1 
• 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 
• 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 
• 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?
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.
Email:paul.maharg@anu.edu.au 
Web: paulmaharg.com 
Slides: paulmaharg.com/slides

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Presentation 1 letr & ethics

  • 1. The wrong story: legal education, ethics and shared space regulation Professor Paul Maharg paulmaharg.com/slides
  • 2. 1. What does LETR say about ethics & legal education? preview Adopt fresh approaches that can improve regulation and the quality of legal education - focus on experiential learning. 2. Re-design ethical learning in legal education Shape the future with regulators, redesign relations between academy & profession, recast curriculum design, learn & implement from other disciplines, professions, jurisdictions. 3. Map and improve the research on ethics & legal education generally Many gaps; almost no organized research programmes; insufficient historical understanding of sub-disciplines and practices; little shared understanding across the field 4. Encourage new ways of understanding how ethics can be understood and practised
  • 3. 1. What does LETR say about ethics & legal education?
  • 4. 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)
  • 5. 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
  • 6. 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
  • 7. key recommendations on ethics ‘Recommendation 6 LSET 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 7 The 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
  • 8. 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
  • 9. evidence…? • Professional ethics 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)
  • 10. OFR & ethics education – how? • OFR will require management skills & processes in entities to cope with risk-based regulation – especially in context of ABSs • Some (eg Boon) argue for ‘situational ethics’ approach – different from a ‘rules-based’ system
  • 11. 2. Re-design regulation of ethics in legal education
  • 12. tools for analysis of regulation: modalities of control Colin Scott’s approach: •‘a more fruitful approach [than pure innovation] 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).
  • 13. 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)
  • 14. 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 The Art & Science of Shared Streets, http://bit.ly/1p8fr8r See also Hamilton-Baillie (2008).
  • 15. 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 • Regulators as democratic designers, taking their place within a Deweyan construct of democratic institutions
  • 16. 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).
  • 17. 3. Map and improve ethics and legal education research
  • 18. 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)
  • 19. 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
  • 20. current initiatives… • It’s open source and free • It’s an international collaboration • It combines both theory and practice • It’s open to interdisciplinarity
  • 21. 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.
  • 22. example: longitudinal research • Do we do the same for ethics? • If not, why not? • What might a longitudinal ethics project look like? http://bit.ly/18WavXV
  • 23. longitudinal research in education • 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). http://bit.ly/1qjTnEk
  • 24. 4. Encourage new approaches to ethics education
  • 25. example 1: curriculum design • Key question: ethics education for whom, by whom, when? • New foundational 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
  • 26. 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 initiative 2.Families Change – Justice Education Society of British Columbia 3.Rechtwijzer.nl – Dutch Legal Aid Board & University of Tilburg
  • 27. project 1 • 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?
  • 28. project 2 • 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?
  • 29. project 3: rechtwijzer.nl • 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?
  • 30. 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.
  • 31. Email:paul.maharg@anu.edu.au Web: paulmaharg.com Slides: paulmaharg.com/slides