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Transforming Legal Education: Learning and Teaching the Law in the Early Twenty-first Century

Ashgate, October 2007, 360 pages, ISBN: 978-0-7546-4970-0

• Author's Introduction
• Review Commentary by John Mayer
• Review Commentary by Julian Webb
• Review Commentary by Abdul Paliwala
  

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Author's Introduction

Paul Maharg

Glasgow Graduate School of Law,

University of Strathclyde.

 

1. Overview

Transforming Legal Education (TLE) is a critical inquiry into the identity and possibilities of legal education, and an exploration of transformational alternatives to our current theories and practices of teaching and learning the law. It argues that bodies of interdisciplinary theory and a knowledge of the history of legal education are important to all stages of legal education, and that new learning designs such as transactional learning need to be developed to help students, educators and lawyers deal with the transitions and challenges facing them now and in the foreseeable future. Throughout, discussions of theory are spliced with case studies of academic and professional legal learning, particularly in the field of technology-enhanced learning. The topics dealt with in depth include:

• the relevance of John Dewey for contemporary educational thinking in our law schools
• forms of thinking promoted by problem-based learning
• the relevance of 'trading zones' to legal education
• how poetry and music can influence our learning designs and inspire our educational practice
• the relevance of early twentieth-century realism, eighteenth-century ethical discourse and medieval glossators to our forms of twenty-first century education
• the use of technology in legal education, including practical examples of diverse and effective strategies such as:
  • simulation learning
  • problem-based learning
  • transactional learning
  • resource-based learning.

Above all, the book is an invitation to readers to write about their experience of legal education, and their vision of future legal learning.

2. In more detail…

The Introduction sets out the pragmatist base of much of the book's approach to theory and practice, deriving this from John Dewey's Pragmatic approaches to education, including his concept of the transaction between learner and the world. Throughout, TLE argues that the liberal law school, whatever its successes may have been in the past, does not provide us with the intellectual or ethical infrastructure for legal learning in the twenty-first century. The critique of the liberal model and the transformational alternatives offered in place of it are outlined in the book's three sections. Part One (chapters 1 and 2) focuses on methodology, and deals largely with the concept that is crucial to any pragmatist project such as this, namely interdisciplinarity - what is it, how can it be conceptualised? How can it be enacted in legal educational practice? How can it be assessed for effectiveness? Part Two (chapters 3-5) focuses on three separate but related meditations on historical episodes. It attempts to recover from the past lost conceptual perspectives and processes which have been erased or partially forgotten, and which are resonant - are at the very least fascinating - commentaries on our contemporary dilemmas. Part three (chapters 6-9) is a set of case-studies in the use of technology within legal education. The Afterword draws together the book's themes, comments on their wider significance and, in a hubristic moment, attempts to preview a couple of hours of a student's study time in 2047.

2.1 PART 1: In(ter)disciplines

Chapter 1 analyses three forms of interdisciplinary endeavour - interdiscipline as subject-matter, as method, and as meta-awareness. It begins with the narrative of a failure in interdisciplinary teaching: what went wrong with this initiative and why is described. The second case study examines the use to which rhetorical studies can be put in textual practices in legal education, while the third explores the application of research on forward and backward clinical thinking in medical problem-based learning to legal education. Throughout, I argue that awareness of legal education as a 'trading zone' (adapting Peter Galison's concept) is essential, and that teachers need to develop sensitivity to how, at a deep level, their teaching practice is interdisciplinary.

The second chapter opens with a discussion of the relationship between theory and practice - what is the relation between the two, and how can we best use research in our practice? I explore in particular Lawrence Stenhouse's concept of the teacher-researcher, as updated by more recent researchers, and examine how practices developed in research can be used to drive the re-organisation of legal education, both small-scale and local change in classrooms, as well as change to more fundamental structures in law schools. Three case studies exemplify this argument: the relevance of poetic discourse in a poem by W.S. Graham, the Kodàly choral method, and the interdisciplinary application of research on standardised patients in medical education to standardised clients in legal education. The three case studies in chapter two are complementary examples to the three case studies in chapter one. All of them illustrate the tensions in an interdisciplinary methodology, and the conflicting roles of discipline and indiscipline to successful interdisciplinary practice.

2.2 PART 2: Laminations

This consists of three chapters with historical themes, the first one opening with an analysis of the realist curriculum reforms undertaken at Columbia University in the 1920s. John Dewey's place in these events is explored, as is the contemporary role played by E.R. Thorndike in Columbia Law School. Parallels are drawn to contemporary curriculum reforms, and the work of the New Legal Realist movement. Next, and moving back in time, we focus, via a discussion of competence and ethical qualities by Ronald Barnett, on one historical instance of the historical fissuring of ethical and educational discourse - the lectures of Adam Ferguson, in late eighteenth-century Enlightenment Edinburgh. His ethical dilemma, and his attempt to resolve it, is compared to aspects of the work of Gillian Rose, and the contemporary work carried out on justice communities in education.

The last chapter in Part 2 moves much further back in time, and contrasts two dramatically different but curiously adjacent technologies, separated by a mere 700 years or so - that of medieval glossed literature, and online social software. First we explore medieval reading and writing habits, derived from the evidence of texts and the analyses of medievalists. Next, we examine how one scholarly form, the gloss, embodied many remarkable feats of compression, reference and was capable of sophisticated, multi-vocal argument. Next we define hypertext and compare it to glossed literature. Finally we examine the effects that social software may have upon legal educational methods - here, as with the study of glosses and other forms of information capture and retrieval, it is essential to understand how our models of reading and writing are changing even as we use them. All three episodes exhibit the laminated quality of our history, and revealed solutions to the enduring problematics that we struggle with today: curriculum design, ethical values, reading and rhetoric.

2.3 PART 3: Metaverse

Continuing the technological theme of the book from the last chapter, the first chapter in this final Part focuses on aspects of contemporary games and simulations that are multi-user virtual environments (MUVEs), the principles underlying the collaborative and social activities within them, and how they can be turned to legal educational use. It draws on a number of themes already raised in previous chapters - interdisciplinarity, and the use of rhetorical theory and educational theory. It focuses on a study of simulations currently in use in a postgraduate professional course called the Diploma in Legal Practice at the Glasgow Graduate School of Law (GGSL). I also examine the development of transactional learning theory underpinning the practice, and its roots in Deweyan educational theory. Throughout there are examples of our practice in the GGSL, the ideas that shaped practical decisions, and the methods we adopted to develop deep collaborative learning.

The second chapter in this Part asks a key question: what effect did transactional learning and simulation have on the curriculum generally? It analyses how such simulation-play affected the curriculum, and how the curriculum, staff teaching, administration and much else in the Diploma has been re-structured by transactional learning. In particular it shows how the subject of Practice Management, hitherto a relatively peripheral subject, became a lynchpin for the whole programme of study. The final chapter in this Part presents examples of the resources and media that can be distributed in cyberspace to support the simulations described in Chapters 7 and 8. It examines some of the results of a research project that set out to discover how such resources affected the quality of student learning. Throughout this Part technology design and use is described as the design of distributed intelligence in learning environments. It is a collaborative activity, between teaching staff and students, between technologists, academics and practitioners, and between institutions. Above all, it represents the attempt to create a learning ecology within the academy that matches the complexity of technology-use outside the academy. It fashions from that technology-use new intellectual and pedagogical forms by which the discipline can enact and reproduce itself.

3. Conclusion

The Conclusion draws together four of the key themes of the book - experiential learning, ethics, technology and collaboration, describes their inter-relationships and discusses how they can be used to transform legal education. The Conclusion ends with a glimpse of legal education in 2047. Whether or not legal education becomes anything like that, the next few transitional decades will prove that our current curriculum models, based upon interpretations of the liberal law school, are unsustainable. There are fundamental changes that need to come about if we are to cope with challenges economic, ethical, rhetorical, and educational. TLE argues that we need to start with a re-orientation of attitudes, values and resources along the lines of the four key themes above.

Review Comments by John Mayer, CALI

Paul Maharg's Transforming Legal Education is a challenging book that yields rich rewards to the reader. It is clearly a labor of love for Professor Maharg and I experienced a whole panoply of reactions to the reading. TLE is a book where you are compelled to read the footnotes and doing so results in deeper knowledge. This was revealing for me.

Many writers on educational theory engage in intellectual hand-waving. They state some hypothesis and then sprinkle some citations that are intended to impress you or lightly reassure you that what they have said is well supported in the literature. Maharg never does this. He dives deep, and you momentarily experience the vertigo of going down a rabbit hole, and instead find yourself enlightened.

Paul demands effort of the reader to follow his thought processes, but it is always worth it. After reading TLE, I purchased at least a half-dozen copies for others as gifts. I wanted to share the fireworks of insights that I had gotten from my determined reading.

TLE is not a book to be read quickly. It's better to treat it like a blog and read a couple of pages every few days to let the ideas percolate. My copy is heavily annotated and densely covered with post-it notes. There are so many interesting ideas, this has to be my primary complaint about TLE – it's too dense. But really, is this Paul's fault or my own? My years of surfing the net have left my deep reading skills weak and shrivelled. Reading TLE is much like a workout of mental muscles and affords the same dopamine high to the determined and disciplined student.

Early in the book, you will find this stunning statement...

“...Learning is therefore a transaction: not the acquisition of knowledge about the world (which like the stimulus-response model separates mentality and reality damagingly), but the acquisition, coordination and practice of habits, impulses and dispositions towards action in the world. As a result of learning, the world becomes richer, more meaningful for the learner...” Page 11

This is no tossed-off statement either. Paul builds up to this climbing on the shoulder of Dewey and delivers this like a commandment.

Later...

“...A strongly competence-based education cannot provide and adequate conceptual structure for legal students or trainees. At best it provides a second-order description of conduct and knowledge...such statements can become impositions on students, setting up a dialogue of learned helplessness...” Page 112

More derivation and extension from Dewey, but definitely finding his own voice. Prior to TLE, I had dim awareness of Dewy and none of Stenhouse, Ferguson and others, who were revealed to me (and all educators) as our ancestors in thought and practice. TLE is much more than a book about legal education. I would recommend it to any reader interested in any discipline of higher education.

Review Comments by Julian Webb, UK Centre for Legal Education

For me the most striking aspects of Transforming Legal Education are its breadth of learning and its ability to marry high theory with practice. As Maharg himself observes, this is no category mistake, but a concern to ensure appropriate theory is matched by a focus on method, a connection I have also sought latterly to capture in my own work by a return to the concept of praxis.

Although transactional learning, facilitated through ICT is at the core of Paul Maharg’s method, the underlying vision is far from narrowly technocratic or profession-centred. Drawing on Dewey, and much subsequent constructivist learning theory, the approach is broad and dialogical. Technology is valued as a means of enhancing not just communication between learners, but our ability to understand “the difficulty of what it is to be” (p.283). The vision is also fundamentally democratic. Indeed in its interdisciplinary and ethical emphasis it is more democratic than the often elitist and knowledge-centred (as opposed to person-centred) approaches that traditionally have occupied the space of liberal legal education. In sum, Maharg has given us a sense of what is possible, one that is both optimistic and grounded in more than a decade’s experience and experimentation. The practical challenge will be bringing the academic community ‘up to speed’, and how we do this is perhaps the one critical question where, Transforming Legal Education offers us some important glimpses, but, perhaps, no programmatic solution.

 

Review Comments by Abdul Paliwala, University of Warwick

The title of the book reveals its high ambition of transforming legal education. At one level of major interest to JILT readership, it might be that this is about the technological transformation of legal education. However, we are soon disabused of this, it is much more. The homage to Freire at the front of the book:

“Education either functions as an instrument that is used to facilitate the integration of the younger generation into the logic of the present system and bring about conformity with it, or it becomes ‘the practice of freedom’, the means by which men and women deal critically and creatively with reality and discover how to participate in the transformation of their world.”

Foreword, Freire, P. (1996, p.16).

There are two vehicles for achieving this transformatory ambition. The conceptual framework is provided by Dewey, whose ideas inspired that ‘other’ pragmatic/realist trend in US legal education, which threatened but did not quite succeed in transforming US legal education away from its Langdellian pseudo-Socratism (cf Paliwala forthcoming).  This is then allied to transactional learning in an electronically simulated environment which originated in the very scots Ardcalloch simulated city but is since being extended both nationally within the UK through the SIMPLE and Simulation OER projects (http://www.ukcle.ac.uk/resources/ict/simple.html) and globally.

The connection between the two vehicles is established at the beginning of Part 3 of the book. Technology is not merely a ‘pet project’ but a ‘learning ecology that matches the complexity of the technology existing outside the law school’ (p261). Nevertheless, Dewey and Freire provide the dimension of pedagogical liberation:

“A discipline must maintain control of the intellectual and pedagogical forms by which it enacts and reproduces itself; that it should determine which forms of education are essential to its being in the world” (p262).

Thus, transactional learning has to be constructed in such a way that “individual learners ..have much more control over, and personal investment in, their environment” so that “students learn by understanding from, acting within, and critiquing the forms of engagement that lawyers use in the world” (p262). This is an exciting scenario whose relative success has depended on the innovative inspiration which arose from an environment of innovative freedom in which a small group of academics worked together with legal practitioners and technologists (p263).

Underlying both the student scenario and the developers’ scenario is an emancipatory vision of technology as a liberating influence. Students and academics given the freedom can provide both a Freireian liberation and an ethical dimension to learning. Such emancipatory ideas are equally present in the suggestion that while authoritarian governments and global corporations may be on course to use technology to censor, constrain and claim proprietary rights over technology, there is, following Benkler (2006) and others, liberationist potential to technology (p278).

Maharg suggests some ways in which the curriculum can be expanded to promote these liberated forms of learning (p278-9). My concern however, is with the simulated learning environment as currently structured. While law teachers may want to engage with ethical and social concerns, the McLuhanite message/massage of student work in an electronic legal process environment may discipline students into taking the environment and the process for granted and emulating it. The addition of smooth technological virtuality to existing legal processes may provide a seductive glitz to the very processes which we may wish to question and challenge. Thus while legal learning may be transformed through technology, perhaps this very transformation may lead the student away from the real problems, issues and oppressions involved in existing legal forms and processes.

This is not just a critique of this excellent book and Paul Maharg’s achievements, but a self-critique which all those who are concerned with promoting technology in legal education need to share. 

References

Freire, P. (1996) Pedagogy of the Oppressed trans. M.B. Ramos (London, Penguin)

Paliwala, A. (Forthcoming 2010) “Socrates and Confucius: A Long History of Information Technology in Legal Education” in Paliwala A. ed. (Forthcoming 2010) A history of Legal Informatics (Zaragoza: University of Zaragoza Press) 210-238.

Benkler, Y. (2006) The Wealth of Networks. How Social Production Transforms Markets and Freedom (New Haven, CT and London, Yale University Press).