Shared space: regulation, technology and legal education in a global context Professor Paul Maharg Australian National University College of Law Abstract The LETR Report on legal services education and training (LSET), published in June 2013, is the most recent of a series of reports dealing with legal education in England and Wales. Many of these reports do not deal directly with technology theory and use in legal education, though it is the case that the use of technology has increased substantially in recent decades. This is a pattern that is evident in reports in most other common law jurisdictions. LETR does have a position on technology use and theory, however, and it positions itself in this regard against other reports in England and Wales, and those from other jurisdictions, notably those in the USA. In this paper I shall set out that position and contrast it with regulatory statements on technology and legal education in England, Australia and the USA. Based on a review not just of recent practical technological implementations but of the theoretical educational and regulatory literatures, I shall argue that the concept of ‘shared space’ outlined in the Report is a valuable tool for the development of technology in education and for the direction of educational theory, but most of all for the development of regulation of technology in legal education at every level.

1. Shared space:
regulation, technology and legal
education in a global context
Professor Paul Maharg
Australian National University
slides @ http://paulmaharg.com/slides
Miranda: O braue new world
That has such people in’t.
Prospero: ‘Tis new to thee.
The Tempest, V.i.215-17

2. Professor Paul Maharg 2
1. 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.
2. 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.
3. Map and improve technology & legal educational
research
Many gaps; almost no organized research programmes;
insufficient historical understanding of sub-disciplines and
practices; little shared understanding across the field.
preview

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

4. Professor Paul Maharg 4
Legal Education & Training Review
(LETR)1LETR on
tech &
legal ed

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literature review1LETR on
tech &
legal ed

6. Professor Paul Maharg 6
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 remit1LETR on
tech &
legal ed

7. Professor Paul Maharg 7
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 esp Lit Rev, chapter 3, ‘Legal education and conduct of business
requirements’, http://letr.org.uk/wp-content/uploads/LR-chapter-3.pdf
LETR remit1LETR on
tech &
legal ed

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(p.332)

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skills comparison across time
LETR on
tech &
legal ed1

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‘Susskind drew on four interviews conducted specifically for
LETR, a series of interviews across the profession in which
he raised LETR, as well as his own on-going research and
consultancy activities. These included 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). He also
drew on his ongoing collaborative research with Daniel
Susskind and 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
LETR on
tech &
legal ed1

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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)
 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)
1LETR on
tech &
legal ed

12. Professor Paul Maharg 12
‘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 services1LETR on
tech &
legal ed

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technology in legal education
 ‘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)
1LETR on
tech &
legal ed

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‘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 education1LETR on
tech &
legal ed

15. Professor Paul Maharg 15
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)
1LETR on
tech &
legal ed

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2. Re-design regulation of
technology in legal
education

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how not to regulate…
1. Debate around 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.
2. But now see:
1. ABA Task Force Report
2. 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.
redesign
relations2

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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.
redesign
relations2

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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).
modalities of controlredesign
relations2

20. Professor Paul Maharg 20
Norms Feedback Behaviour-
al modifi-
cation
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
Ostrac-
ization
Villages,
Clubs
Professional
Ordering
Design Fixed with
Architect-
ure
Lack of
Response
Physical
Inhibition
Parking
Bollards
Software
Code
Modalities of control (Murray & Scott 2002)

21. Professor Paul Maharg 21
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/1p8fC3uThe Art & Science of Shared Streets, http://bit.ly/1p8fr8r See also
Hamilton-Baillie (2008).
redesign
relations2

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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
redesign
relations2

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LETR recommendation
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).
redesign
relations2

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3. Map and improve technology
and legal educational
research

25. Professor Paul Maharg 25
future research needs?
1. Map the field & create
taxonomies for research data
3improve
research
2. Organise systematic data
collection on law school stats
across entry/exit points, across
jurisdictions (eg using Big Data
Project methods)

26. Professor Paul Maharg 26
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
3improve
research
4. Provide meta-reviews
and systematic summaries
of research, where
appropriate; literature
guides

27. Professor Paul Maharg 27
how might BILETA
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.
3improve
research

28. Professor Paul Maharg 28
references
Hamilton-Baillie, B. (2008). Shared space: reconciling people, places and traffic.
Build 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.

29. Professor Paul Maharg 29
Email: paul.maharg@anu.edu.au
Web: paulmaharg.com