The permeable web: community, value and ethics in legal education

The permeable web: community, value and ethics in legal education

Professor Paul MahargGlasgow Graduate School of Law

Beyond Text, Edinburgh, June 2009 2

argument in summary…

1. A shift in pedagogical focus from student-as-spectator to student-as-creator forms a new learning space, similar to that opened up by art objects, and by dramatic and musical performance.

2. In an online simulation environment (such as SIMPLE) there is no entirely bounded docuverse called text. Text and all other forms of representation overlap, palimpsest-like, in our consciousness of the world.

3. In much the same way, play itself in MUVEs and online communities is permeable, interweaves with non-play.

4. Professionalism in legal practice communities is similarly porous with the personal values and attitudes of learners and professionals.

5. What we need to do is to create the opportunities, the clearings in our overcrowded, often incoherent curricula, for the values of play, and the play of virtues to be encouraged, discussed and enacted.


‘Individuals will always be the centre and consummation of experience, but what the individual actually is in his life experience depends upon the nature and movement of associated life’.

John Dewey, LW 14, 91.

Dewey & collaboration >>


William Sullivan contrasts technocratic professionalism (concerned with technical self-interested practices and motivations driven by profit only) with civic professionalism, that invests professional practice with moral meaning and with democratic value.

Sullivan, W. (1995) Work and Integrity. The Crisis and Promise of Professionalism in America, second edition, New York, John Wiley & Sons

>> civic professionalism


‘If the ideal of democratic professionalism is so beneficial, then why is it losing to the technocratic model? An obvious reply is that the latter fits neatly into the rationalized procedures and needs for predictability and control found in modern economic and political organization. Further, those trained for professions currently have minimal instruction in the democratic consequences of their professional domains.’

Dzur, A.W. (2002) Civic Participation in Professional Domains, Paper delivered at the Annual Meeting of the Amercian Political Science Association, Boston, August-Sept 2002, http://muse.jhu.edu/login?uri=/journals/good_society/v013/13.1dzur01.html

technocratic professionalism vs democratic professionalism


Law Society of Scotland is currently consulting on new outcomes for a primary educational programme: PEAT 1 (old

Diploma in Legal Practice) a flexible work-based elective programme: two-year

traineeship + PEAT 2 (old Professional Competence Course)

new CPD requirements

Scottish professional legal education


New curriculum structure based around transactional learning with the concept of professionalism at the core based on the values of ethical practice as:

defined by the profession analysed by profession and schools

Scottish professional legal education


transactional learning…

Transactional learning:

active learning through performance in authentic transactions involving reflection in & on learning, deep collaborative learning, and holistic or process learning, with relevant professional assessment that includes ethical standards


Professionalism Professional relationships Professional communications

professionalism values as outcomes


Throughout the programme a student should demonstrate a commitment to:1. The interests of justice and democracy in society2. Effective and competent legal services on behalf of a

client3. Continuing professional education and personal

development4. Diversity and public service5. Personal integrity and civility towards

colleagues, clients and the courts

professionalism


Outcome Positive indicator Negative indicator

5. Personal integrity and civility towards colleagues, clients and the courts

Is honest with all others on the course; relates to colleagues on the programme with civility; treats tutors, administrative staff and others with respect.

Exhibits traits of arrogance, intemperate behaviour, mismanagement of own affairs; lies to colleagues or programme personnel; plagiarises work; adopts the work of others as own work; is abusive or contemptuous towards colleagues or programme personnel.

professionalism


Law Society is now: Working with institutions, students, staff to bring about

collaborative change Creating a space where Creative Commons resources

and Open Educational Resources (OER) can be created, shared & maintained.

Developing with institutions key initiatives such as Standardized Clients, interactive multimedia, simulation.

Society is matching curriculum-building process to the aims of the programme itself…

process of change…?


SIMPLE (SIMulated Professional Learning Environment

personalized learning in a professional environment collaborative learning use of simulation spaces in programmes of study, and

the relation between simulation spaces and other learning spaces on a programme, including paper-based and online resources, face-to-face classes, and administration

use of rich media in online simulations – video, graphics, text, comms., etc.

authenticity in the design of simulation tasks, and effective assessment of professional learning


what has the SIMPLE project done?

Provided academic staff in UK universities with software tools to design and build simulations and collate all of the resources required

Developed teaching, learning and assessment templates, including curriculum guidelines

Provided tools to create a map and directory for a virtual town

Enabled communication between students and simulated characters/staff

Monitoring and mentoring functions Evaluated student and staff experiences in using the

simulation environment


large-scale implementation in disciplines

Discipline Degree programme Institution

Architecture BSc (Hons) / March, year 3 Strathclyde U. (1)

Management Science

BA (Hons), year 1 Strathclyde U. (1)

Social Work MA (Hons), year 2/3 Strathclyde U. (1)

Law LLB, year 1 Glamorgan U. (1)

Law LLB, year 2/3 Stirling U. (2)

Law LLB, year 3Warwick U. (1)

Law LLB, year 3 West of England U. (1)

LawDiploma in Legal Practice, p/g

Strathclyde U. (6)


correspondence file


Ardcalloch directory


map of Ardcalloch


example:personal injurynegotiation project

Administration: 272 students, 68 firms, 8 anonymous information sources –

PI mentors 68 document sets, 34 transactions Each scenario has embedded variables, called from a

document server, making it similar, but also unique in critical ways

students have 12 weeks to achieve settlement introductory & feedback lectures discussion forums FAQs & transaction guideline flowcharts voluntary face-to-face surgeries with a PI solicitor


PI project: assessment criteria

We require from each student firm a body of evidence consisting of:

fact-finding – from information sources in the virtual community)

professional legal research – using WestLaw + paperworld sources

formation of negotiation strategy – extending range of Foundation Course learning

performance of strategy – correspondence + optional f2f meeting, recorded





PI project: what students would have done differently…

‘At the beginning we thought we perhaps lost sight of the fact that we had a client whom we had a duty to advise and inform. On reflection we should have issued terms of engagement and advised the client better in monetary terms what the likely outcome was going to be.’

‘[…] unlike other group projects I was involved in at undergraduate level I feel that I derived genuine benefit from this exercise in several ways:1. reinforcing letter-writing, negotiation, time-management and IT

skills2. conducting legal research into issues of quantum3. working effectively in a group as a group - not delegating tasks at

the first meeting and then putting together pieces of work at the second meeting.’


PI project: tempo & complexity


‘We found that UCSF, School of Medicine students who received comments regarding unprofessional behaviour were more than twice as likely to be disciplined by the Medical Board of California when they become practicing physicians than were students without such comments. The more traditional measures of medical school

performance, such as grades and passing scores on national standardized tests, did not identify students who later had disciplinary problems as practicing physicians’.

Papadakis, M. et al (2004) Unprofessional behaviour in medical school is associated with subsequent disciplinary action by a state medical board, Academic Medicine, 79, 244-79

evidence on professionalismfrom medical education


tools for learning professionalism:the learning/trust matrix

Trust

Dysfunctional

Learning Community

Friendly Society

Legal Eagles

Learning

Barton & Westwood,2006


development of learning matrix

Learning

Trust

12% 27%

20% 41%



low trust and low learning

Trust

Learning

Culture Suspicious, blame, independence, me first

Task Not task focussed; low engagement

Relationships Victimisation, polarised, abrasive, secrets

Approach Inflexible, superficial, dictatorial, rigid




“not my place to act as social worker to my team members.”

“Teamwork jarring is insoluble – some people are just destined not to work together.”

“Basically I would say that our firm was a success although we would have been better as a group of three.”

“…this was done for selfish reasons as at the time I had no desire to work with L as tensions between us from the outset were high”

“…childlike tantrums…turned into a nightmare”

Trust

LearningBarton & Westwood, 2006



Trust

Learning

‘Personal conflict or basic incompatibilities over interpersonal styles can poison a group.’ (Leonard and Swap 1999 p42)

‘Without trust it may literally be true that it is not safe to talk about particular issues. Over time the relationships will not survive if it is not possible to talk through issues before they do damage.’ (Ward & Smith 2003 p14)

‘…distrust creates destructive conflict among members.’ (Johnson & Johnson 1997 p133)

Barton & Westwood, 2006


high trust and high learning

Culture Inclusive, fair, interdependence, team first

Task Task focussed: our way; high engagement

Relationships Open, valued, supportive, honest

Approach Flexible, organic, consensus, responsive

Learning

TrustBarton & Westwood, 2006



“the great thing about the firm was that I felt that we all picked up on these weaknesses early on without any conflicts arising”

“that doesn’t mean our differences have to separate us…that is precisely what makes us work much better together as a team”

“Greater than the sum of the parts springs to mind.”

“People were flexible about the work they took on and were willing to try new things.”

“…responsibility was shared and that support would be given if someone had a problem.”

“The other 2 members of the firm turned up on the negotiation day to lend moral support and share in the outcome”

Learning

Trust



‘…it is through the medium of the group that a student can immerse himself in the world of the practicum ….learning new habits of thought and action’ (Schon 1987 p38)

‘successful collaborators create patterns of communication appropriate to their relationship and task’ (Schrage 1995 p158)

‘To be part of a group is to share values with the others to some extent. This sharing of values allows certain things to be said which otherwise cannot be said.’ (Ward & Smith 2003 p96)

Learning

Trust


reference

Barton, K & Westwood F. (2006) From student to trainee practitioner – a study of team working as a learning experience, Web Journal of Current Legal Issues, http://webjcli.ncl.ac.uk/2006/issue3/barton-westwood3.html











DemocracyIsland…

SL blogs

SL events


Harvard Law School online course…

http://blogs.law.harvard.edu/cyberone/


1. there’s no such thingas experiential learning

We don’t learn from experience We learn by working to interpret experience, given that, when

learning: we have different prior knowledge our aims are always different in subtle ways we learn different things from the same resources ‘resources’ means symbolic objects like books & web pages, but

also people, including ourselves we can learn intimately and deeply from any resource, given a

suitable context Teachers and students need to encode those interpretations as

complex memories, habits, skills, attitudes or knowledge objects if they are to re-use them

Schratz, M. and Walker, R.(1995) Research as Social Change: New Opportunities for Qualitative Research. London: Routledge.


Curriculum is multiple distributed technologies and practices. Eg timetables, course teams, notepads, learning spaces, forms of knowledge transmission, discussion, computers, forms of speech, writing – all existing in time spans.

Some technologies are ancient (lectura, glossa), some new (SIMPLE, standardised clients, mobile phones)

Success in learning means:1. for staff, the need to compose and orchestrate the

curriculum. 2. for students, the tools, support & spaces to manage

their own curriculum

2. curriculum is technology


Dewey & Thorndike: where extremes meet

‘One cannot understand the history of education in the United States in the twentieth century unless one realizes that Edward L. Thorndike won and John Dewey lost.’

Lageman, E. (1989) The plural worlds of educational research, History of Education Quarterly, 29(2), pp. 185–214


John Dewey E.L. Thorndike

1. Philosopher & educationalist Educational psychologist

2. Theoretician and practical implementer

Theoretician & experimentalist

3. Interested in the arc between experience & the world

Explored the dyadic relationship between mind & the world

4. Pragmatist approach to learning: prior experience, ways of contextual knowing

Adopted as precursor of a behaviourist approach to learning: assessment-led; laws of effect, recency, repetition

5. Emphasised learning ecologies Emphasised teaching strategies

6. Followed by: Bruner, Kilpatrick, standards movement, Constructivist tradition

Followed by: Watson, Skinner, Gagné, outcomes movement,


‘Judgment may be identified as the settled outcome of inquiry. It is concerned with the concluding objects that emerge from inquiry in their status of being conclusive. Judgment in this sense is distinguished from propositions. The content of the latter is intermediate and representative and is carried by symbols; while judgment, as finally made, has direct existential import.’

Dewey, Logic: The Theory of Inquiry (New York: Henry Hold and Company, 1938), 120

[a]n experience is a product, one might almost say a by-product, of continuous and cumulative interaction of an organic self with world’

Dewey, Later Works, vol 10, p. 224

experiential education aseducation of qualities…


[T]he old notions of natural Affections, and kind Instincts; the Sensus communis, the Decorum, and Honestum, are almost banished out of our Books of Morals; we must never hear of them in any of our Lectures for fear of Innate Ideas; all must be interest and some selfish View.

Hutcheson, F. (1969–90) Collected Works of Francis Hutcheson, 7 vols (Hildesheim, Olms), VII, 475 [1725]

… in an Enlightenment, beatific model of ethical encounter…


‘Dewey’s analyses of the transaction of organism and environment can be read as an account of the construction processes that lie beneath all human activity. Dewey’s work anticipates, if it does not explicitly articulate, much of what is important and interesting about constructivist epistemology and constructivist pedagogy.’

Vanderstraeten, R. (2002) Dewey’s transactional constructivism, Journal of Philosophy of Education, 36(2), pp. 233–46, 234.

… and in models for future educative ethical processes…


Example: client permissionclaimant firm

‘You have indicated that would prefer to not have this matter proceed to court. Please inform us as soon as reasonably possible of your instructions of the amount we would be able to accept on your behalf in full and final settlement of this claim following negotiation with the defenders.’

‘As for the total amount of the claim, my wife and I have discussed the matter and we’re happy with the sort of amounts you’ve stated there. As I say, I’m not wanting to go to court, but I do want as much as I can get though I realise you’ve got to be realistic. I’m not looking for apologies or anything. Do your best and just get as much compensation as you can.’

law

firm

Clie

nt


Example: client permissionclaimant firm

‘Just one more thing. I notice that the Agreement is signed by you rather than me, which is fair enough I suppose, if you are my solicitor. I don’t know about the details of these things. But it just seemed odd to me that you sent me the agreement signed by you, and I had not said if I agreed with the amount. I just wonder what would have happened if I had changed my mind?’

Clie

nt


claimant firm response

Extract from letter to client:

‘In our report to you dated 16th December 2008 we asked for your instructions as to the amount that we could accept on your behalf in full and final settlement of the claim. In your letter of 4th January 2009 you indicated that you were happy with the amounts that we had indicated and that we were to do our best and just get as much compensation as we can for you. We took this to be your instructions for us to settle on your behalf and are sorry if we misinterpreted these and for any confusion involved in the process.’


defender firm response

Firm minutes of meeting to discuss the issue:

‘All acknowledged and understood AIC’s concerns with regard to this matter. However, we had felt the letters of 4th and 8th Jan had provided us with the authority necessary to settle.

We felt that this one-off breakdown of communications between the firm and AIC, who are a long-standing client, should be taken on board and that we should put in place a clear process for settlement in future actions.’


contact details

Email: [email protected]

Blog: http://zeugma.typepad.com

Book: www.transforming.org.uk

These slides at: www.slideshare.net/paulmaharg

SIMPLE: http://simplecommunity.org