Regulatory and ethical impacts of the Covid-19 crisis on legal education

CALE Conference
23 October 2020
Paul Maharg
https://paulmaharg.com/slides
Regulatory and ethical impacts
of the Covid-19 crisis
on legal education

preview
• My argument is that C19:
– invites us to admit that what we always knew was wrong about
legal education now needs urgent and radical change, eg -
– the failures of legal edu/tech generally
– the failures of assessment
• And that we need to reshape the legal curriculum with
phenomenological models of education, eg -
– PBL
– online structures for legal skills education
– regulator / law school initiatives in the US & Canada:
• Practice Readiness Education Program (PREP)
• Institute for the Future of Law Practice (IFLP)
• And that regulators need to be involved in these changes too.
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
1

1. The failures of legal edu/tech
‘Aesthetics matter: interface design shapes learning’
Edinburgh University School of Education,
https://onlineteachingmanifesto.wordpress.com/

let me count the ways…
1. Not enough investment
2. Little coherent leadership on edu/tech within & across
institutions, within & across academic + professional contexts
3. Cross-curricular planning?
4. Interdisciplinary borrowings?
5. Almost complete reliance on vanilla apps given to us by our
institutions
6. Few edu/tech apps developed for our discipline
7. Innovation is not a fluid, planned continuity: more of a lurch
8. Almost no sustained educational innovations adapted to new
tech, and vice versa
3

9. No timelines or historical overviews of digital tech in legal education
10. No timelines or historical overviews of any tech in western & northern
legal education
11. No databases of survey data (cf three early BILETA reports, or AMEE
reports on tech in medical education)
12. No contemporary annotated bibliographies in the field (Pearl Goldman’s
excellent work needs updated… Anyone?)
13. Insufficient jurisprudential theorizing
14. Little organization of what theorizing there is into a coherent body of
critical work
15. Links between legal education and education not well understood
16. Insufficient lessons learned and adapted from sister disciplines, eg medical
education
17. Very few intercultural analyses of the global adaptation of technology
across different jurisdictions
18. Etc etc
4

2. The failures of assessment
‘Aesthetics matter: interface design shapes learning’

Technical model of learning Professional model of learning
The only learning worth evaluating can be seen as
behavioural changes.
Worthwhile learning is often personal, obscure and private.
Only some learnings appear as behavioural changes.
Everything that exists, exists in some quantity, and therefore
can be counted and measured.
Many things that exist are not externally verifiable.
The teacher-selected goals are the important ones, therefore
the evaluated ones.
Both teacher- and student-selected goals are important, as is
learning attained without goals.
Comparing behaviours to some objectively held criteria or
comparing to the progress of other students determines how
well something is learned.
Educative learning cannot be rated on a scale. Most learning
cannot be compared either to some "objectively" conceived
criteria or to the progress of other students.
The teacher-student relationship is hierarchical and the
teachers assign and rank students by how well they have met
specific objectives.
The teacher-student relationship is egalitarian. Learning
requires less of a process of trusting grades and more to
exploration among expert and novice learners, and thrives on
constructive criticism.
The quality of rigour of a course can be determined by how
well it helps its students meet the discipline requirements as
reflected by test scores, attainment of behavioural objectives,
and accreditation requirements, since these reflect the
agreed-upon discipline content.
well it helps students collect paradigm experiences, develop
insights, see patterns, find meanings in ideas and experiences,
explore creative modes of enquiry, examine assumptions,
form values and ethics in keeping with the moral ideal of the
caring scholar-clinician, respond to social needs, live fully and
advance the profession.
Bevis, E.O., Watson, J. (1990) Towards a Caring Curriculum: A New Pedagogy for Nursing, National League for Nursing, New York;
cited Maharg, P., Owen, M. (2007). Simulations, learning and the metaverse: changing cultures in legal education, Journal of
Information, Law, Technology. Special Issue on Law, Education, Technology, 1,
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2007_1/maharg_owen

Technical model of learning Phenomenological model of learning
The only learning worth evaluating can be seen as
behavioural changes.
Worthwhile learning is often personal, obscure and private.
Only some learnings appear as behavioural changes.
Everything that exists, exists in some quantity, and therefore
can be counted and measured.
Many things that exist are not externally verifiable.
The teacher-selected goals are the important ones, therefore
the evaluated ones.
Both teacher- and student-selected goals are important, as is
learning attained without goals.
Comparing behaviours to some objectively held criteria or
comparing to the progress of other students determines how
well something is learned.
Educative learning cannot be rated on a scale. Most learning
cannot be compared either to some "objectively" conceived
criteria or to the progress of other students.
The teacher-student relationship is hierarchical and the
teachers assign and rank students by how well they have met
specific objectives.
The teacher-student relationship is egalitarian. Learning
requires less of a process of trusting grades and more to
exploration among expert and novice learners, and thrives on
constructive criticism.
well it helps its students meet the discipline requirements as
reflected by test scores, attainment of behavioural objectives,
and accreditation requirements, since these reflect the
agreed-upon discipline content.
well it helps students collect paradigm experiences, develop
insights, see patterns, find meanings in ideas and experiences,
explore creative modes of enquiry, examine assumptions,
form values and ethics in keeping with the moral ideal of the
caring scholar-clinician, respond to social needs, live fully and
advance the profession.
Bevis, E.O., Watson, J. (1990) Towards a Caring Curriculum: A New Pedagogy for Nursing, National League for Nursing, New York;
cited Maharg, P., Owen, M. (2007). Simulations, learning and the metaverse: changing cultures in legal education, Journal of
Information, Law, Technology. Special Issue on Law, Education, Technology, 1,
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2007_1/maharg_owen

causation & context in assessment
If learning … then assessment is often…
1 is teacher-focused teacher-centred, not learner-centred.
2 follows a transmission model
of education
focused only on what’s supposed to have arrived /
been delivered
3 focuses only on the individual individual, alienating, where collaborative, peer-
review or self-review can’t take place
4 consists of monolithic &
substantive law content
lacking interdisciplinarity, with little assessment of
skills, values, attitudes as well as critical knowledge
5 sits in strongly contested
relations between practice &
academy
problematic, because content & forms of academic
assessments can’t transfer well to professional
learning and formation of identity

but the failure goes deeper…
Where do we find in regulatory educational guidance
these attributes:
• Values
• Attitudes
• Skills
• Affect
• Empathy
• Social commitment
• Candour
• Benevolence
• Courageous spirit or resilience
9

‘Now is your time to begin Practices and lay the Foundation of habits
that may be of use to you in every Condition and in every Profession
at least that is founded on a literary or a Liberal Education. Sapere and
Fari quae sentiat are the great Objects of Literary Education and of
Study. … mere knowledge however important is far from being the
only or most important Attainment of Study.
The Habits of Justice, Candour, Benevolence, and a Courageous Spirit
are the first Objects of Philosophy the Constituents of happiness and
of personal honour, and first Qualifications for human Society and for
Active life.’
Adam Ferguson Lectures, 1775–76, fols 540–41. Edinburgh University Library Special
Collections, EUL.
10

Non tu corpus eras sine pectore; di tibi formam,
di tibi diuitias dederunt artemque fruendi.
Quid uoueat dulci nutricula maius alumno,
qui sapere et fari possit quae sentiat, et cui
gratia, fama, ualetudo contingat abunde,
et mundus uictus non deficiente crumina?
Inter spem curamque, timores inter et iras
omnem crede diem tibi diluxisse supremum;
grata superueniet quae non sperabitur hora.
11
Horace, Epistles, I, iv, extract
(addressed to the poet Albius Tibullus)

You are not merely a body without any feelings.
You have been given beauty, wealth and the means to
appreciate things.
What more would a nurse wish for her sweet wee one
Than wisdom, the power to express what he feels,
Much kindness, health and fame,
An elegant way of life, and enough money?
Amid the hope and worry, fear and anger,
take every day that dawns as your last –
the unlooked-for hour will be a welcome surprise.
12
‘Ferguson’s creation of a virtue ethics derived in part from Stoic and Aristotelian sources,
and allied to a Hutchesonian view of the sensus communis, can help contribute to a fresh
perspective on our own necessary adaptations in contemporary ethical and legal
education’.
Paul Maharg (2007). Transforming Legal Education: Learning and Teaching the Law in the Early Twenty-First Century.
Routledge, London.

JISC insights into student digital experiences
13

14
So in legal education do we…
> address digital inequalities?
> take learner-centred approaches?
> develop student digital capabilities?
> design collaborative activities
online?

15
And do regulators…
> address digital inequalities?
> advocate learner-centred
approaches?
> advocate student digital
capabilities?
> practise and advocate collaborative
design online?

Reshaping the legal curriculum:
examples of collaborative models
https//paulmaharg.com/slides
‘Don’t succumb to campus envy: we are the campus’

PBL – its characteristics (David Boud)
• An acknowledgement of experience of learners.
• An emphasis on students taking responsibility for and
control of their own learning.
• Interdisciplinary boundary-crossing.
• The fusion of theory and practice.
• A focus on processes, not merely the products, of
knowledge acquisition.
• Change in tutor role from instructor or tutor to
facilitator.
• Change in focus from tutor / lecturer assessment of
learning outcomes to student self-assessment and
peer-assessment.
• A focus on communication and interpersonal skills.
17

one online method –
e-PBL (Hmelo-Silver 2004)

presented graphically online as…

Example 1: ANU online PBL cycle
• groups of five students to one facilitator
(Adobe Connect + other apps)
• PBL session 1 on problem, tasks etc, then…
• Research, individual & collaborative, then…
• PBL session presentation / wrap-up
• Repeat… (cf Dewey on the importance of
habit)
20

21

what did students think of…
the design?
• Participant 1. “I did 1 ½ years of Arts/Law degree 15 years ago at
[another G08 university]. Compared to that, this course has an excellent
set up. I like the combination of subjects. It’s practical, makes sense. It’s
quite a lot of work, but well done. I liked the integrated nature of the
curriculum, much more like real life.”
• Participant 2. “I agree. I also completed 1 ½ years at a different
sandstone university. I like the PBL approach. I found the typical
traditional Law School approach is a bit intellectually stagnant. It’s
difficult to pursue interests you may have. PBL is more engaging and
interesting.”
• “[The online learning environment] was fantastic once I understood how
it worked. I wasted time early on trying to work out how it worked. I
needed to be hand-held through the environment, perhaps during
enrolment, or early on. Fantastic now.”
• “The learning environment is very good. Working well. We are
stretching the technology. Be better if there was one login.”
22

what did students think of…
the facilitators?
• “[The facilitator] helped a lot in directing us in the beginning; prepared
us in tackling PBL; told us if we were on the right direction.”
• “Outstanding. [The facilitator] was always there to answer questions.
Glowing praise for [The facilitator]. Facilitation exceeded expectations. I
have done a PhD @ ANU – I hoped it would hold me in good stead –
however it was in some ways a source of anxiety. Were my arguments
sensible? [The facilitator] was deliberate, slow, understanding, patient in
getting your perspective out.”
• “It was very noticeable that [The facilitator] has 20+ years of practical
experience. Was able to share what happens in the real world.”
• “[The facilitator] helped by guiding us to where we needed to head when
we were unsure. Weekly feedback was great. Weekly tasks held us
accountable. Feedback was really useful even if it was (happened to be)
negative.”
• “[The facilitator] was a really, really good facilitator; she let us write our
own ‘operating manual’”
23

Example 2: PBL designs in three online
Masters courses in Osgoode
Professional Development
All entirely online, student cohort across timezones from
Beijing to British Columbia:
• Foundations of Canadian Law (core)
Emilio Dabet, Jacynthe Ledoux
• International Business Law (option)
German Morales
• Canadian Constitutional Law (core)
Nicole Chrolavicius, Liyusew Kidane
The following slides by Nicole are copied from her class
introduction…
24

• Understand the fundamental components of
Canadian constitutional law
• Learn how to apply constitutional principles in
practice
• In particular:
– Nature and sources of the Canadian Constitution
– Division of powers in a federal system of
government
– Constitutional amendment
– The Canadian Charter of Rights and Freedoms
– Constitutional remedies
Canadian Constitutional Law:
purpose and objectives
25

1. 10 Modules to study individually, which
contain all the course content
2. Two PBL assignments, to complete in groups,
on modules 1-5 & 6-10
3. Individual critical case comment assignment
to write and submit
4. Final exam in December
26
Canadian Constitutional Law:
course structure & assessment

• PBL group assignment (20%)
– PBL problem #1, ungraded, for practice + feedback
– PBL Problem #2, 20%, submitted and graded as a
group, 20% of total mark
• Critical case comment assignment, submitted
individually (20% total)
– One page outline, worth 5%. Given feedback
– Full assignment worth 15%
• Open book, invigilated final exam (60%)
– Based upon PBL approaches and methods
27
Canadian Constitutional Law
Course Evaluation

PBL research
We have a Zotero Library
of PBL research
should you wish to join it –
• 562 items and counting,
under more than two dozen
headings, many items with
full texts.
• send your email address to
Angela Yenssen
(ayenssen@gmail.com) and we’ll sign you up.
https://www.zotero.org/groups/249341/pbl_an
d_legal_education/items/WUFR8UFN/library

Online futures for legal skills education
‘Distance is temporal, affective, political: not simply spatial’

online or f2f, same principles apply
30
Richard E. Mayer’s multimedia principles:
1. Coherence
2. Signalling
3. Redundancy
4. Spatial contiguity
5. Temporal contiguity

models of interactivity built on
Meyer’s principles:
the CoL i-tutorial
Guide
Key texts Self-test
WORKSHOP
i-Tutorial
Preparatory activities
Sources
Secondary
texts

32
models of interactivity built on
Meyer’s principles:
Hmelo-Silver’s PBL model

Osgoode Professional Development
(OPD): Intensive Trial Advocacy
Workshop (ITAW)
In the past:
• ITAW has run for 40 years, f2f, lasts an intensive week,
aimed at practitioners, c. 80-100+ participants
This year:
• Online. Used Zoom, Slack, ePortfolio, Moodle LMS
• We prepped & ran a 40-participant, intensive week-
long pilot
• Faculty were trained in online facilitation – combo of
NITA + cognitive/affective feedback (PM)
33

34

ITAW: faculty comments
• Thought it worked great.
• I found it somewhat difficult to navigate the conversations
• Don’t love it
• Really don’t believe it was significantly less effective than in person.
• The technology and the tech support were both amazing.
• Got the job done once I learned to navigate, but not as intuitive as I’d
have liked. Not bad though.
• I thought the video review session went very well – it was not
significantly impacted by using Zoom (or at least the technical hurdles
were manageable). I did feel compelled to speak about advocacy issues
unique to that platform (looking at the camera, etc.). We could almost
do a spin-off program on intensive online trial advocacy.
• The process used for video review was very streamlined and could easily
be used during the in-person program.
• My real rating is 4.5 [out of 5]. The audio problems with the video
review were problematic. Aside from that the workshop was seamless
and quite frankly I was VERY favourably surprised.
35

ITAW: interim student feedback
• Simply great.
• I realise that my lack of prep is my fault only, so I preface my remarks
with this. I think that maybe a week prior, an hour or two prep session
taking us through Moodle, Slack, lesson prep, etc.?
• I really enjoyed how the faculty were able to separate us into smaller
groups so that they may directly critique our performance to get better
in examinations.
• Well managed. I liked the micro presentation. Don’t have to bite off too
much. Most importantly, I learned at least one major thing today that
will start to benefit my practice immediately. Job well done. Only
negative comment is a better understanding of where [zoom room] to
go in next, which was not clear.
• The first day of the program went really well. The program was planned
really well. There were no issues with technology, timing, etc. even
though this is the first time it is being offered virtually. All the instructors
gave valuable feedback and simplified the processes involved in direct,
cross, and re-examination.
36

Law school as liquid digitalscape
‘Online teaching need not be complicit with the
instrumentalization of education’

1. Organisations to create weak boundaries, strong
presence through resource-based, integrated
learning networks, with open access (open
courseware initiatives, etc)
2. Focus not on transmissive static content but much
more on web-based, aggregated content in part
created by students and re-usable as open
educational resources (OERs)
3. Learning as integrated understanding & capturable
conversation, just-in-time learning
4. Assessment of situated learning
5. Develop student agency
6. Enable open models, eg HyFlex
A key shift: change the hermeneutic
focus …

our future ed/tech?
We need:
• to create investment in software and digital design
• learning zones that are also assessment zones
• design & tech teams integrating with faculty on
specific projects within over-arching educational
philosophies of learning
• a significant shift in our models of online learning,
teaching & assessment – achieved through creative
relations beyond the academy. Eg Artha Learning
(Toronto), PREP (Canada), IFLP (USA, Canada)…
39

Eg - Institute for the Future of Law
Practice (IFLP)
40

IFLP: participants & aims
• Law schools, legal professionals, law students
(rising 3Ls), employers
• Boot camps (flexible, multi-week) &
internships (10 weeks > 7 months)
• Focuses on disciplines
not generally taught in law schools:
– Design thinking
– Data analytics
– Tech
– Process / project management
– Business tools
41

law schools involved …
42
… no UK law schools?

… and regulators?
Practice Readiness Education Program

Practice Readiness Education Program (PREP)
44

some references
Barton, K., McKellar, P., Maharg, P. (2007). Authentic fictions: simulation, professionalism and
legal learning, Clinical Law Review, 14, 1, 143-93
Engeström, Y. Centre for Research on Activity, Learning & Development.
https://www.helsinki.fi/en/researchgroups/center-for-research-on-activity-development-
and-learning
Hmelo-Silver, C. (2004). Problem-based learning: what and how do students learn? Educational
Psychology Review, 16, 3, 235-66.
McKellar, P., Maharg, P. (2005). Virtual learning environments: the alternative to the box under
the bed, The Law Teacher, ‘Special Edition on ICT’, 39, 1, 43-56
Maharg, P. (2007). Transforming Legal Education: Learning and Teaching the Law in the Early
Twenty-first Century. Ashgate Publishing, Farnham, Surrey. See chapter nine: ‘Multimedia
and the docuverse of law: learning and the representation of knowledge’.
de Freitas, S., Maharg, P., eds (2011). Digital Games and Learning. Bloomsbury, London.
Maharg, P. (2014). Convergence and fragmentation: legal research, legal informatics and legal
education. European Journal of Law and Technology, 5, 3. Available at:
http://ejlt.org/index.php/ejlt/.
Maharg, P. (2016). Webcasts and podcasts: digital designs and learning. Faculty seminar, Chinese
University of Hong Kong, June 2016. Available at: https://paulmaharg.com/slides
Maharg P. (2017). Multimedia learning, 2002-2018: A case study across a century of digital
learning. Faculty seminar, Osgoode Hall Law School, April 2018. Available at:
http://paulmaharg.com/slides
Shulman, L. S. (2005). Signature pedagogies in the professions. Daedalus, 134(3), 52–59
45

Email pmaharg@osgoode.yorku.ca
Web: paulmaharg.com
Slides: paulmaharg.com/slides

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