NewLaw NewLegalEducation

By Justine Rogers

I was lucky to be part of an invigorating panel discussion hosted by The Australian recently, as part of their Legal Week initiative. I joined two colleagues, our Dean, Professor George Williams, and Associate Professor Michael Legg, as well as Gilbert+Tobin lawyer, Sam Nickless.

It was a wide, free-flowing discussion of the current and future changes to the profession, what Williams called ‘a once-in-a-century process of disruption in the legal market’, and the meanings these have for practice and for legal education. I thought I’d share here some of the main changes discussed and their significance for legal education and the law school.

The Changes:

1. Automation of legal services and its integration with services delivered by people.
2. The possibility for technology to increase access to justice.
2. Unbundling of legal services and flexible, ad hoc and assorted teams brought together for certain projects.
3. Professional ethics centred less and less in the profession and professional association and more in organisations and even the mode of legal service delivery itself.
4. Ethics of introducing new technology to clients or helping them with their artificial intelligence.
5. The globalisation of law – where clients, for instance, are from other jurisdictions.
6. The changes to law firms and their business arrangements, specialisations and recruitment practices, including firms coming from overseas to recruit UNSW Law (or Australian) students.
7. Cross-border disputes and the extent to which Australian courts can remain forums for litigation.

What They Mean for Legal Education and the Law School:

1. Urgent need to answer questions about the value that a person adds as a lawyer.
2. Law schools may need to focus on the ‘professional’ things computers can’t do (or can’t do as well): certain forms of problem solving and analysis, integrity, ethics, professional relationships, creativity and imagination.
3. Law combined with computer science, maths or engineering will add to classic combinations.
4. All law students must understand technology (coding and programming, for instance) regardless of their other degree.
5. Law students must develop capacities in team work and project management.
6. Law students need to be able to identify and address ethics and accountability issues in a range of contexts, when working with external lawyers, non-lawyer professionals and, crucially, with technology.
7. Law students need to understand not just other, non-Australian legal systems but also the cultures in which law operates.
8. Law schools need to help their students appreciate the range of different firms in Australia and the region in making their career decisions.

Without wanting to sound too home-team-y, we’re already doing some pretty fabulous stuff at UNSW Law to support each of these and, through a mini curriculum review, we’re about to do a whole lot more.

(The full video and an edited transcript of the discussion is here.)

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The importance of regulatory context: some questions for legal educators

By Justine Rogers

ANU College of Law hosted its annual legal ethics roundtable last week. The theme was ‘reimagining lawyer regulation’.

The regulatory ideas presented raised many worthwhile questions for legal education. I’ve selected two here.

From the talk given by keynote speaker, Professor Leslie Levin, expert in the legal profession, ethical decision-making and lawyer discipline, University of Connecticut:

1) How do we teach law students to be professional when the primary influence over their ethical attitudes, decision-making and compliance will be their particular, divergent work contexts?

Building on other research, Levin’s study of some 1300 lawyers revealed that of all the determinants of future ethical behaviour, most decisive is practice context (workplace, type of client, court etc) and the behaviour of those who inhabit it. Far less so or less significantly are the things that students need to disclose for admission (such as mental health).

Context shapes the importance given to the professional bodies outside the workplace when deciding what values and rules are worth following, such as, the associations, the regulators (or the disciplinary architecture), the court, and the insurers. For instance, big firms look within their own firms and otherwise interact with insurers, prosecutors are less concerned with criminal liability (when does that happen?), in-house counsel don’t worry about discipline, whereas sole practitioners do. In other words, different things matter to different practices.

Levin asked: How do we create professional training, sanctions, and incentives in order to motivate lawyers to behave the way we want them to and to teach them what positive norms there are in the profession? How do we regulate lawyers if context (what matters in each context) is the key variable?

This also means we need to think about how to develop professional integrity and core ethical skills among students for contexts that will introduce, emphasise and enforce professional values in very different ways.

From the talk given by Dr Stephen Tang, Lecturer, ANU College of Law:

2) What is the proper role of behavioural ethics (or any applied psychology) in legal ethics courses?

Behavioural (Legal) Ethics is ‘trending’ in legal ethics education. Popularised by books like Thinking Fast and Slow, and Nudge, this scholarship argues that people are fundamentally irrational and use cognitive short cuts that can lead to suboptimal decision-making. At UNSW Law, we use behavioural legal ethics material in our core course to allow students to better identify, prepare for and discuss ethics issues. Our material includes this leading Robbennholt and Sternlight piece and this wonderful series of ‘Ethics Unwrapped’ videos from UT Austin, both of which were commended by Tang.

This material is useful, he argued, at least as a set of cautionary tales of how irrationality can contribute to immorality and discrimination in routine, subconscious ways. But his concern with behavioural ethics, or the behavioural economics or applied psychological approaches from which it derives, is how the information can be used  – and is used – to manipulate behaviour, even if in a benignly paternalistic or ‘nudging’ way. Equally concerning, its use is usually guided by simplistic, narrow, short-term and consequentialist (eco-based) ideas of people’s motivations and values.

When regulating lawyers, he argued, we need to contemplate and include professional narratives, and organisational climates, and cultures – or more complexity. We will have, then, a better chance of success in fostering certain positive behaviour because we will understand bigger psychological dimensions and developments over time, not just quick, aesthetic behavioural changes, of the same sort as the etched image of a fly in a urinal used to lead to cleaner bathrooms (yes, that’s a real example of applied psych). “If regulation is inescapable, then we must understand people in context. We need to have a sense of our own limits as regulators when deciding what other people decide.”

Similarly, I would say, when teaching students behavioural ethics to more effectively engage in ethical discussions, it must involve a commitment to use the information transparently and inclusively as a way of better understanding and discussing mistakes and fallibilities, of broadening the range of harms considered, and not ruling out or underestimating other motivations, explanations and solutions.

Big Data Analytics on student surveys

It’s the new “thing” – analytics applied to student responses to courses. And it is really quite scary.

To give an example, I will share my own results from a recently taught course of 22 students of which 10 filled out the survey. This is “small data”. It takes about 5-10 minutes (generously) to read and reflect upon the student feedback. Since I am sharing, they generally liked the course including guest lectures and excursions, but felt that one topic didn’t need as much time and that my Moodle page wasn’t well organised. All very helpful for the next time I run the course (note to self to start my Moodle page earlier and tweak the class schedule).

The problem is no longer the feedback, it is the “analytics” which now accompany it. The worst is the “word clouds”. I look at the word cloud for my course and see big words (these generally reflect the feedback, subject to an exception discussed below) and then smaller words and phrases. Now the smaller ones in a word cloud are obviously meant to be “less” important but these are really quite concerning, so much so that I initially panicked. They include “disrespectful/rude”, “unapproachable”, “not worthwhile”, “superficial” and “unpleasant”. Bear in mind the word cloud precedes the actual comments in my report. None of these terms (nor their synonyms) were used by ANY of the students (unless an organised Moodle page could count as “unapproachable”). And they are really horrible things to say about someone, especially when there is no basis for these kinds of assertions in the actual feedback received.

The problem here is applying a “big data” tool to (very) small data. It doesn’t work, and it can be actively misleading. One of the word clouds (there are different ones for different “topics”) had the word “organised”. That came up because students were telling me my Moodle page was NOT well organised, but it would be easy to think at a quick glance that this was praise.

So what is the point of this exercise? One imagines it might be useful if you have a course with hundreds of students (so that reading the comments would take an hour, say). But the fact that the comments can be actively misleading (as in “organised” above) demonstrates, you still need to read the comments to understand the context. Further, students often make subtle observations in comments (like the fact that too much time was spent on a particular topic) that are difficult to interpret in a word cloud where the phrases are aggregated and sprinkled around the place. So, it doesn’t really save time. The comments still need to be read and reflected on.

Big Data tools always sound very exciting. So much buzz! Imagine if we could predict flu epidemics from Google searches (that no longer works, by the way) or predict crime before it happens (lots of jurisdictions are trying this, particularly in the US). But the truth is more like the word cloud on student feedback – inappropriately applied, error prone, poorly understood by those deploying the tool, and thus often unhelpful. Data analytics CAN be good tool – but it is a bit like a hammer in the hands of those who don’t understand its function and limitations, everything looks like a nail.

Lyria Bennett Moses

Cheating at University

4732885512_9bf97a8838Photo Credit

Justine Rogers

Last week I was asking students in my ethics class to discuss legal values and what ones they’d picked up from law school. They raised a range of things, from compassion to competition. But one student said, “No plagiarising, no cheating, being honest in your work!”. “It’s drummed into us from Day 1”, one added.

I was rather chuffed to hear this, but I am not sure I can or should be too pleased. The research shows that these are problems affecting all Australian universities, though unevenly across them and within the disciplines. Sydney University has just released part 1 of report, ‘an approach to minimising academic misconduct and plagiarism at the University of Sydney. Its focus is detection and prevention. The Report shows that most instances of misconduct were categories of negligence (lack of understanding or carelessness about how to cite and reference). The rest, the active fraud, is where it gets disturbing.

There’s the less-straight-forward (as far as severity of categorisation goes) collusion and recycling, but most of it is outright dishonest plagiarism and ghost writing, or getting someone else to do the work and submitting it as your own. Ghost writing, in particular, is becoming more prevalent and difficult to regulate. Students are taking advantage of sophisticated and therefore hard-to-detect online services, marketed to them, ones like MyMaster. These fraudster strategies affect most directly take-home assessments, but now students are adapting the technology available to cheat in exams. They are using their phones and watches to bring in material, using loo breaks to quickly check the internet, taking photos of confidential papers, and one I hadn’t thought of in my old cheating (paper-based) days:* paying impersonators to come and take the exam on their behalf. Other categories found in the report were fraudulent medical certificates or other bad faith uses of special consideration.

A summary of the Report’s recommendations (produced by the Academic Misconduct and Plagiarism Taskforce, Sydney University, 2015: 2): Continue reading “Cheating at University”

Inspiring Addresses to New Students

The new UNSW LLB and JD classes heard inspiring addresses from alumni, respectively, Sean Lau (recently awarded the Rhodes Scholarship) and Michael Rose (Chief Executive Partner of Allens).

Sean gave excellent advice on decision-making, in which he looked critically at clichéd advice students always get to ‘keep your options open’ and ‘do what you love’.

Michael Rose gave an inspiring speech on ‘why law matters’. He started from his experience of a child’s preventable death in PNG, which he saw as a product of a society lacking the rule of law. He went on to talk about how law will matter in the world you will be working in, and your responsibilities as lawyers.

Sean’s and Michael’s speeches can be found here.

Jobs for law graduates

The issue in Australia is not as stark as it currently is in the USA. But, as a recent article in The New Yorker suggests, many US law graduates are having difficulty finding jobs. Students with high levels of debt are left without a means of paying it back.

There are important differences differences between Australia and the US: (1) our fees are lower (for now), (2) law in Australia is an undergraduate degree, so many graduates choose non-law career paths, often treating law as a useful general degree rather than as a professional qualification, (3) the Australian economy is doing relatively well, and (4) some international students wish to use their degree in their home country, where demand may be higher. Nevertheless, on the numbers, there are still many more Australian law graduates than there are law jobs for graduate lawyers in Australia.

What is the ethical responsibility of law schools in Australia in this regard? Is it simply a question for “the marketplace” or should universities (typically funded on a per student basis) think carefully about appropriate numbers? Should weaker students (who are less likely to find employment) be provided with more help and advice?

Lyria Bennett Moses

The teaching year has just started here, and for me personally, the teaching of a brand new course.

Beginning something offers the chance to see what we are doing as teachers of law close up, because for at least some period of time, it is not natural; it needs repeating and (re)getting used to.

Traditionally, legal education has been about training students to ‘think like a lawyer’; to develop supreme skills of analysis, meticulousness, reasoning and persuasion. Writers have identified the values that guide these skills, some of which, they argue, are harmful to the well-being of lawyers, the clients they serve, and their communities.

Indeed, for just and effective legal practice, what’s needed in legal education is a greater emphasis on broader cognitive, social, practical and ethical skills – indeed, an increased emphasis on competence and skills generally. Students also need opportunities to make these skills meaningful, in connection to others.

This isn’t ‘just’ the findings of a bunch of academics. The legal profession is beginning to support this thinking. The NSW Law Society is now restructuring its CPD program to reflect the contemporary reality that, as it states, these are not ‘soft’ skills, rather ‘fundamental’ ones that best serve the client. To do so, they’ve drawn on the analysis of Canadian lawyer and ‘legal futurist’, Jordan Furlong.

They ask, “So what exactly are the six new skills Furlong thinks need to be added to the [traditional] mix if we’re to create the complete modern lawyer?” They are:

1. Ability to Collaborate

2. Emotional Intelligence

3. Financial Literacy (adding a nice dimension to Colin’s recent post)

4. Project Management

5. Technology Affinity (um, not sure about this term and can hear the cries of gross commercialism from among more senior lawyers, – as with 3. – but it means being competent at using your computer, the internet and other mobile technology.)

6. Time Management

I would add ethics reflection and decision-making to the list. Also, I am fairly sure there are other aspects of justice and the law that, while more about substantive knowledge and attitudes, could be presented as related skills?

In any case, given its connections to mastery, social relatedness and the emotions of the individual, this set of skills has great potential to also support the well-being of lawyers and law students in ways that the traditional skills do not or do not do as fully. What do you think of the list? Whether we’re at the beginning of the year, or in the slightly wilder stage, does it seem like a useful and worthy guide for our teaching?

Justine Rogers

Preparing law students for IT in the workplace

According to this article, competition among law firms is heating up and those that are using Information Technology (IT) as a collaborative communication tool may have an advantage. The article looks at some technologies that law firms are harnessing to enhance lawyer-client interactions. This allows greater flexibility in access, leading to greater client satisfaction. The article begs the question of whether universities are preparing students to use technology as collaborative, communication tools? Are universities a strong link in the chain between students coming into the university with strong IT skills, and the changing nature of the workforce which is also utilizing the tools that IT has to offer?

By Thomas Molloy 

Pressure to publish in select journals results in distortions

Randy Schekman, Nobel prize winner, says his lab will no longer send papers to top scientific journals Nature, Cell and Science because of his belief that the pressure to publish in such journals distorts science. More and more, legal academics are coming under the same kids of pressure to publish in particular “prestigious” journals. As is the case in science, such pressure distorts the kinds of legal scholarship that academics choose to pursue. Since prestigious journals only rarely overlap with practitioner journals, for example, there is a risk that engagement between academia and the profession will decline. Is this simply a game we all accept we have to play for career progression, do we believe that it is ultimately of benefit to the legal academy to go along with this, or is it something on which we should, like Schekman, take a stand?

By Lyria Bennet Moses

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