Perspectives on Legal Education

Contemporary Responses to the Lord Upjohn Lectures

Chris Ashford, Nigel Duncan, Jessica Guth, Chris Ashford, Nigel Duncan, Jessica Guth

• Verlag: Routledge
• Jahr: 2015
• ISBN:
  9781317606956
• Auflage: 1
• Thema: Jura
• Thema: Rechtstheorie & -praxis

This edited collection offers a critical overview of the major debates in legal education set in the context of the Lord Upjohn Lectures, the annual event that draws together legal educators and professionals in the United Kingdom to consider the major debates and changes in the field.

Presented in a unique format that reproduces classic lectures alongside contemporary responses from legal education experts, this book offers both an historical overview of how these debates have developed and an up-to-date critical commentary on the state of legal education today. As the full impact of the introduction of university fees, the Legal Education and Training Review and the regulators' responses are felt in law departments across England and Wales, this collection offers a timely reflection on legal education's legacy, as well as critical debate on how it will develop in the future.

1 The Lord Upjohn Lectures and Legal Education

Chris Ashford, Nigel Duncan and Jessica Guth

Lord Upjohn was the first President of the Association of Law Teachers (ALT), serving from 1966 until his untimely death in 1971. An appreciation of Lord Upjohn by Sir Jack Jacob¹ appears below. The first Lord Upjohn Lecture was delivered by Lord Diplock in December 1971 at Gray’s Inn before an audience including Lady Upjohn, Lord Denning, Lord Morris, the President of the Law Society, a large number of judges from the High Court and the Court of Appeal amongst many others.² His subject was ‘The Common Market and the Common Law’.³ This and many of the subsequent lectures were published in the Association’s journal, The Law Teacher, where they can be found in the archive maintained by Routledge.⁴ The lectures covered a wide variety of topics of interest to members of the Association. In addition, many focused directly on issues of legal education. We have chosen 11 of those lectures to form the backbone of this book. In each case we have asked a current expert in the relevant field to provide a contemporary commentary. Some of the lectures exceeded the length permissible for inclusion in this volume and have been edited. The full versions are, of course, available from the Routledge archive.

The lectures reflect the focus of the ALT in promoting excellence in legal education, bringing together scholars, practitioners, policy-makers and other key stakeholders to debate and reflect on legal education discourse. In 2015, the Association celebrated its fiftieth anniversary. It was born into the radicalism and idealism of 1960s’ education and activism. In looking back at these lectures, we are able to document not just the historical debates of legal education policy and pedagogy but to draw upon contemporary legal education voices to reconsider these arguments and to offer fresh reflections. Taken as a whole, this collection looks back to our history and forward to our future.

In doing so, the editors hope that this collection enables readers in some way to reconnect with the ambition and radicalism that characterised our foundation. We hope that it will enable legal education scholarship to move beyond the well-worn grooves of discourse that too-often characterise scholarship in this field. Binary debate, whether it is vocationalism verses liberal arts, technology verses ‘tradition’, creative versus rigour in pedagogic practice, or other such binary choices, have had their value, but there is a need to move beyond these well-rehearsed and too familiar discussions. Recent years have seen greater reliance on empirical work alongside greater sophistication in the application of theory to legal education scholarship. Yet, there remains a need to deepen our scholarship and to engage with broader literature.⁵

We have been fortunate in our authors. The Lord Upjohn Lecturers themselves include senior judges, experienced academics, professional regulators and those who have experience in more than one of those fields. Their lectures have come at key points in their work. Thus Lord Woolf wrote at the point of introducing the ‘Woolf reforms’ of civil litigation. David Edmonds, then Chair of the Legal Services Board, used his Lord Upjohn Lecture to introduce the Legal Education and Training Review (LETR), the key event in legal education policy development in England and Wales. Lord Neuberger, then President of the Supreme Court, introduced themes he was developing elsewhere in his speeches and writing to respond to the LETR, which was at that time shortly due to report. Our contemporary commentators are, we hope you will agree, equally well-chosen. For example, Sir Vivian Ramsey, who responds to Lord Woolf ’s lecture, was, in 2012, appointed to lead the implementation of the ‘Jackson reforms’ which built on Woolf and are changing practice in the civil justice system as we write. Professor Stephen Mayson, a key commentator on the consequences of the Legal Services Act 2007, addresses the views of David Edmonds. Professor Julian Webb, Lead Researcher of LETR and lead author of its report,⁶ provides a response to Lord Neuberger’s Lecture.

The lectures are not presented in chronological order. We start with Lord Neuberger, the most recent of our Lord Upjohn Lecturers, and Julian Webb. Being such a recent lecture there was little need for Webb to update us. Instead, he chooses to set out the context of historical attempts to improve legal education before directly addressing Lord Neuberger’s arguments. This provides a useful overview and places much of what follows in this book in context. Webb’s historical overview covers some two centuries, and demonstrates a compromise flowing through the changes which have occurred, with vested interests a factor in that compromise. He criticises Neuberger for repeating that compromise, although he recognises that the same is true of the LETR Report. Webb makes more radical suggestions. Might training for the Bar, for example, not be a post-qualification matter, as it is in Scotland? A more fundamental critique is the limited reference to access to justice. Do we allow too much focus on the needs of the corporate sector? This cannot be resolved by changes to legal education alone; instead we need to think about the design of rule of law systems. The contributions by Sir Vivian Ramsey and Nigel Duncan give some indication of the interaction between changes in the justice system and the legal education that prepares people for it, but Webb proposes a more open inquiry. He reiterates the need for a Legal Education Council to make progress with this.

The next four contributions address significant legal education policy areas. Wes Streeting’s lecture, based on his experience as President of the National Union of Students and subsequently as Chief Executive of the Helena Kennedy Foundation, addressed widening participation. He identified desiderata and made practical proposals as to how they might be addressed. Graeme Broadbent’s response develops Streeting’s own arguments and places them in a historical context. He draws on the scholarship of widening participation in respect of higher education generally, but applies it particularly to legal education. He recognises that access is insufficient if students are not adequately prepared for all aspects of the experience of higher legal education and that retention is equally important. A key element to this is the information available to aspiring law students. He looks critically at the official information available through the NSS⁷ and the KIS⁸ and then develops his argument through an exploration of the plethora of conflicting advice available through universities’ own websites, social networks and personal connections. Through this analysis he shows how those intended to benefit from widening participation continue to suffer from structural and informational disadvantages.

David Edmonds’s lecture, as mentioned above, introduced the LETR with a series of challenges to legal educators and the legal professions. Stephen Mayson analyses the Report of that Review pointing out the limited extent to which it met Edmonds’s aspirations for it. He identifies specific shortcomings with the Report, flowing largely, in his view, from a failure to step away from the existing framework of major professional bodies. He proposes, instead, that ensuring the competence and ethics of those providing legal services must be disconnected from awarding a title. Further attention must be paid to a number of interrelated central challenges. Much legal work is non-reserved activities and may be provided by solicitors or barristers, or by practitioners who are not subject to similar levels of regulation. Within solicitors’ firms as well as the new alternative business structures there are those whose central role is service provision and others whose central role is owning and managing the business. The interaction between individual regulation and entity needs further work. Mayson then identifies five key areas where practitioners may fail to meet the desired standards and five specific aspects of the processes of preparing lawyers for practice which need to be developed. Ultimately, his concern is that the current review process is too tied into the existing professional structure to respond effectively to the rapidly changing legal services marketplace.

Four contributions address the specific demands of preparing lawyers for the process of litigation, particularly in the civil sphere. Lord Woolf’s Lord Upjohn Lecture explained the ‘Woolf Reforms’,⁹ their implementation and their implications for legal education. This focused on the professional stage of legal education and training. These reforms have been a qualified success, having effectively encouraged greater use of ADR and thus diverted many cases from expensive and time-consuming court hearings, but have done less to control costs. As a result, Sir Rupert Jackson was asked to undertake a further review. His report¹⁰ develops court management powers and focuses in particular on the costs of the litigation process. Sir Vivian Ramsey explains how these reforms are being implemented in practice. He focuses on the way in which the concept of proportionality has been entrenched, drawing attention, as he does so, to the dialectical process whereby its introduction in the Woolf reforms appeared to be undermined by the decision of Lownds v Home Office¹¹ (a decision of Lord Woolf himself) and has now been reinforced with a statutory definition that gives more power to the judges in their attempts to control costs. He also considers the impact of the Human Rights Act, new legislation at the time of Lord Woolf’s lecture, with its potential for conflict between legislature and judiciary, and concludes with a survey of the way in which legal education has responded to these changes.

Sir Roger Ormrod, writing a quarter of a century earlier than Lord Woolf, explained the consequences for solicitors and advocates of the then recent changes in court practices and procedures. These continued to create problems which he identified and placed in the context of changes to education and training for the Bar which had developed in the light of his own Report¹² of a few years earlier. Nigel Duncan adopts an historical perspective to draw attention to two developments. One is the changes in the civil justice system referred to above by Lord Woolf and Sir Vivian Ramsey which he summarises to show how the various strands interact. The second development is that in education for the Bar. He explains the way in which a modern Bar Professional Training Course integrates the different areas of learning that students must achieve and uses a particular example from the course at his own School. This is supported by the results of an evaluation recently undertaken into student responses to this element of their learning. It is indicative of the strides that have been made in constructing professional programmes which focus on preparing people for practice in a changing environment.

Two contributions then focus specifically on students. Ruth Deech, in her Lord Upjohn Lecture, considered student contracts as a way of regulating the relationship between universities and students. She noted that contracts which set out duties on both sides highlight that education cannot simply be delivered to a passive audience, but she also noted that education is a life event which does not easily lend itself to contractual regulation and that the relationship between student and university is rather more complex. Rebecca Huxley-Binns takes up this notion of complexity in her response to Deech. She reminds us that students starting university now have very different experiences and expectations than we did when we started and that we must therefore challenge some of the assumptions (such as the distinction between knowledge and skills) made by Deech. Huxley-Binns conceptualises the relationship between university and student more as a psychological rather than a legal contract and encourages us to remember that we teach better when we understand that our students learn differently to how we did.

Mr Justice Goff (as he then was, before elevation through the Court of Appeal to become the Senior Law Lord) chose as his topic the then course of professional training for the Bar. As Chairman of the Council of Legal Education he understood well the pressures on students and the provider and used that experience to suggest seven lessons for the future. He also pointed out how an effective professional course liberates the academic stage from the need to prepare students for practice. Susan Blake responds to these themes. She challenges his assertion that standards of scholarship are often higher in the Inns of Court than in the universities, pointing out the essential difference in focus. While Mr Justice Goff sought a middle way between analytical and sociological jurisprudence, Blake suggests that the current focus on commercial law has made that balance harder to achieve. She also considers the impact of the changes to the funding of higher education and the current changes in regulation for the academy. Looking to the future she proposes six developments which will be key: the limited range of reserved activities; the developing use of technology in the courts; the development of alternative business structures; the withering of public funding for litigation; the growth of ADR; and the impact of globalisation.

Lord Justice Lawton’s tenth Lord Upjohn Lecture in 1980 reflected on the legal education needs of the legal profession, whilst looking back and criticising aspects of his own 1930s’ legal education: ‘I had no tutorials and no opportunity of discussing legal problems with any knowledgeable persons’ save for his time at Cambridge University. Looking back upon his own 50 years in the legal profession, Lawton argued for a ‘good education’ with a focus upon a mastery of the English language. Lawton did not merely look back in his lecture. He noted the increased use of technology within legal practice and the increased internationalisation of law, advocating graduates fit for the modern world of legal practice. Chris Ashford notes that Lawton’s view of legal education and the needs of the profession are inevitably shaped by his background as well as his position. The lack of diversity in the profession then, as now, is striking and differences within and between legal professions as well as Law Schools are not sufficiently recognised and acknowledged. Ashford notes the impact this has on the ‘tug of war’ between law as an academic discipline and Law Schools as training schools for the professions. He raises questions about how well the profession knows what it needs and suggest that it cannot help but perpetuate that which has always been as it reflects its past into the future.

Lord Griffith, giving his lecture in 1993, was embarking on the major initiative of the Lord Chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC). This detailed consultation and analysis of legal education and the profession is dis...

Inhaltsverzeichnis

• Cover
• Title
• Copyright
• Contents
• Foreword
• Notes on Contributors
• 1 The Lord Upjohn Lectures and Legal Education
• 2 The Rt. Hon. Lord Upjohn, C.B.E., D.L.: Honorary President of the Association of Law Teachers, 1966-1971: An Appreciation
• 3 Forty-first Lord Upjohn Lecture 2012: Reforming Legal Education
• 4 Response: A Tale of Two Cities: Reflecting on Lord Neuberger's 'Reforming Legal Education'
• 5 Fortieth Lord Upjohn Lecture 2011: Widening Participation in a Changing Educational Landscape
• 6 Response: Transformation by Education
• 7 Thirty-ninth Lord Upjohn Lecture 2010: Training the Lawyers of the Future - A Regulator's View
• 8 Response: Of Competence, Confidence and the Last Chance Saloon
• 9 Twenty-ninth Lord Upjohn Lecture 2000: The Education, the Justice System Requires Today
• 10 Response: Education in Times of Developing Law and Civil Procedure
• 11 Fourth Lord Upjohn Lecture 1974: Fact-finding: Art or Science?
• 12 Response: Preparation for Practice: Developing Effective Advocates in a Changing World of Adversarial Civil Justice
• 13 Thirty-eighth Lord Upjohn Lecture 2009: The Student Contract
• 14 Response: Changing Terms: A Response to Professor Deech
• 15 Sixth Lord Upjohn Lecture 1977: The Law as Taught and the Law as Practised
• 16 Response: How Well Are We Moving Forward in the Teaching v Practice Debate in Law?
• 17 Tenth Lord Upjohn Lecture 1980: Legal Education and the Needs of the Legal Profession
• 18 Response: The Needs of the Legal Profession and the Liberal Law School: (Re)negotiating Boundaries
• 19 Twenty-second Lord Upjohn Lecture 1993: The Lord Chancellor's Advisory Committee on Legal Education and the Legal Profession
• 20 Response: From Gavotte to Techno
• 21 Eleventh Lord Upjohn Lecture 1981: The Teaching of the Law and Politics
• 22 Response: But It Still Goes On: The Teaching of Law and Politics in 2015
• 23 Twenty-fifth Lord Upjohn Lecture 1996: The Integration of Teaching and Research in the Law Department
• 24 Response: Fostering Curiosity: The Importance of Research and Teaching in Law Schools
• Index