Business Law-Professor Paul Maharg Glasgow Graduate School of Law

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On the edge: ICT and the transformation of professional legal learningProfessor Paul Maharg Glasgow Graduate School of LawAbstract Information and communications technology in professional legal education courses is perceived as problematic for teachers and course designers. It is so not because technology is inherently difficult or strange, but because at a deep level it can threaten the practice and identity of teachers. However the contextual challenges of their position, caught between academy and practice, may actually enable professional legal educators to take account of new technologies. The article discusses this proposal, using the example of the incremental development of a discussion forum. It suggests that the tools of pragmatist and transformative meta-theory may point the way forward for professional legal educators to create their own community of practice in the use of ICT in professional legal learning.One possibility is that people are going to do what people always do with a new communication technology: use it in ways never intended or foreseen by its inventors, to turn old social codes inside out and make new kinds of communities possible. CMC [computer-mediated communication] will change us, and change our culture, the way telephones and televisions and cheap video cameras changed us – by altering the way we perceive and communicate.Rheingold (1992)Research replays the essential disjunction between any imagining of our condition and social life as a fabrication of divergences and of events quite unforeseenStrathern (2000a)Introduction Information technology changes at a breathless and bewildering pace. Moore’s law is the classic benchmark for hardware improvement; but when we consider the use as well as the industrial production of IT it becomes apparent that there is more than one rate of change involved.1 In her summary of the literature on how such change affects social institutions,1 Moore’s law states that the number of transistors on integrated circuits will grow exponentially. The rate of transistors has doubled every year since Gordon Moore first made his prediction. While it has slowed recently, the rate of data density has actually doubled approximately every 18 months (Moore 1965). Processor speed is not the only quality of chips that PC users appreciate. The success of Intel’s Centrino chipset platform (in the last three quarters of 2003 Intel held 11% of the Wi-Fi chipset market; in the same period in 2004 the company almost doubled its share) has meant that PC users now expect wireless local-area networking as standard, andElectronic copy available at: http://ssrn.com/abstract=10877692Marlene Scardamalia (2001, p 171) drew the useful comparison between four different rates of change – technological innovation (very fast); the rate of adoptions of technological innovations (fast, but depends on the product – compare mp3 players with video conferencing, for instance); the rate at which practices change as the result of new technologies (much slower – in education, the ‘glass book’ is still depressingly common); and the rate at which practices improve generally as a consequence of a technological innovation (very slow – touch screens in commercial applications, for instance, or networked learning ecologies in education).2These different rates of change are of course context-dependent, on geography, wealth, social networks, and much else. In the midst of such bewildering change, and faced with the hype of the virtual and the false lure of context-free information networks and exchanges, how can we tell what is peripheral in the field of legal education and ICT, and will perish soon, and what will endure for more than the market lifetime of a silicon chip (Harnad 2001a; Harnad 2001b)? Which bits of IT, in both the technical and ordinary sense of the word, are important to professional legal educators? The question requires us to define at least two important issues. First, who is involved in professional legal education? Second, social perceptions of the role of professional legal education affect how ICT will be used within it, and any analysis must take this into account. Bearing this in mind, what do professional legal educators interpret as their practice or practices in legal education, and where does ICT fit into this interpretation?Professional legal education: teaching on the edge A brief glance at the life-cycle of a professional legal education course will show there are fundamental differences in almost every aspect between undergraduate and postgraduate professional legal education programmes of study – in pre-student attraction to the institution and its course, application interview, clearing offer, new student arrival, registration, induction course teaching, communications, library, computing, teachers and their backgrounds and experience, assignments, assessments, results, appeals, resits, careers, welfare, administration, graduation, and alumni activities. Where in general a liberal consensus regarding content and method is pre-defined for undergraduates by academics, where the boundaries of that consensus during a programme of study is defined in many subtle ways, where content is assessed by academics and the whole process is under academic control, the professional legal educator’s life is by comparison less in his or her control regarding matters right across the course life-cycle (the literature on this goes back at least to Twining (1967) – see also Hepple (1996)). There are important regulatory issues and codes to which professional programmes require to conform, and which affectwill increasingly expect applications to converge, seamlessly, within that environment. See Intel’s Centrino Solution, in Technology Review MIT’s Magazine of Innovation, Feb 2005, 31-2.2 For an interesting user description of texting as technological change, see Extrasonic blog at http://www.extrasonic.com/archives/2005/01/24/texting-and-other-signs-of-technology-ubiquity/ . See also Gartner’s predictions for 2005 at http://www3.gartner.com/research/spotlight/asset_113278_895.jsp.3the culture of a course. Undergraduate courses, though they are under pressure from other directions, are largely sheltered from such close-quarter regulatory concerns. To be sure, there are quality assurance issues and procedures to be attended to, but in the past few years, in Scotland at least, these have tended to be review processes internal to the university, and not directly under the control of external regulators.For those involved in professional programmes, though, the environment is more commercially competitive, is more exposed to market values and neoliberalist values of accountability and enterprise. There are more stakeholders: the profession, the regulatory bodies, the Bars, the universities are but four principal players, and by no means the only ones. The identity of professional legal teachers itself is multivarious, protean. They are practitioner-tutors, or full-time staff with a practice background but a few of them are academics with responsibility for professional legal education. Some of them exist in- between, with both regulatory and academic research obligations to fulfil.The ground of their teaching practice has not been that of the ‘high ground’ of academic practice, as Donald Schön has it, but is much closer to the swamp of practice, where political and cultural pressures, particularly those of policy and audit, affect them profoundly, in all the jurisdictions of these isles. And by the phrase ‘policy and audit’ I refer particularly to the analyses of it carried out by Marilyn Strathern (see for example Strathern (2000a; 2000b; 2004) – more of this below). In Ireland they have been subject to reports by the Competition Authority. In Northern Ireland there have been similar attentions. In England and Wales the Training Framework Review has recently put the whole system of professional legal education into doubt. In Scotland the Diploma Working Party is reviewing the content and method of the primary course in the professional education programme in Scotland, and this will affect the entire three-year programme of professional education. The depth and speed of the change within professional legal education, its proximity to political pressures such as that brought about for example by Clementi in England and Wales, means that professional legal educators are under more pressure from this direction than their academic colleagues.As a result, professional legal education is permanently on the edge. It exists on a fault-line that is constantly shifting, between the academy and the profession, between education and training, between university and external regulatory demands. Professional educators live and work in border country where there are boundary disputes, jurisdictional claims, shifting allegiances and the constant negotiation and re-negotiation of educational claims and counter-claims; and their modes of working reflect this.Or at least one assumes so. But while there is emerging a body of research on the working lives and practices of legal academics, there is little that examines the working lives of professional legal educators (Brownsword 1999; Mytton, 2003; Cownie 2004). How do they resolve these remarkable sets of pressures and conflicts in their everyday educational practice? If, as Barnett says of academics, research performance is a crucial part of their ‘professional identity’, what then is the fulcrum of the identity of professional legal4educators, most of whom engage in little published research (Barnett 1990, p 135)? Above all what is their ‘living educational theory’?3The answers to these questions would in effect be a form of raison d’être for professional legal educators, where the être must be more of a phenomenological construct than a mere raison d’employ. Remarkably, there is almost no discussion of what might be regarded as meta-theory by which they explain their work and lives to themselves and to others (statements of programme learning outcomes are hardly a meta-theory). Meta-theory is a substantial project on its own, and there is insufficient space to do it justice here; but towards the end of the article I shall describe possible theoretical approaches which, I would suggest, can at least begin to underpin the use of ICT in imaginative and powerful ways within professional legal education.Teaching staff and ICT That it is difficult to inhabit the demesne of ICT is shown by the research literature into academic staff use of technology. Coupal identified three stages of development in ICT use by teachers: ‘literacy uses ( a technology-centred pedagogy); adaptive uses (a teacher- centred, direct instruction pedagogy); and transforming uses (a student-centred, constructivist pedagogy)’ (Coupal 2004, 591); and this has been observed by other researchers (eg Bottino 2004). What do teachers feel about the use of ICT, though, and how do they perceive its effects on their practice? Over a decade ago Klem and Moran analysed why teachers had negative reactions to ICT (Klem & Moran 1994). In their study, teachers viewed ICT as bringing about a loss of power, control and authority within the traditional teaching environment. Their view of technology was that, to misquote Christensen (2003), all technology was disruptive; very little of it was seen as being sustaining of traditional educational practices.In one sense the introduction of ICT is new twist to an old thread of protest, where teachers perceive they are oppressed in one way or another by varied forms of new educational practice. Dewey, for instance, in an early version of protests against the New Managerialism, once declared:In the name of scientific administration and close supervision, the initiative and freedom of the actual teacher are more and more curtailed. By means of achievement and mental tests carried on from the central office, of a steadily issuing stream of dictated typewritten communications, of minute and explicit syllabi of instruction, the teacher is reduced to a living phonograph. In the name of centralization of responsibility and of efficiency and even science, everything possible is done to make the teacher into a servile rubber stamp. (Dewey 1991 [1927], pp 122-3)3 The quotation comes from the web site ActionResearch.net, at http://www.bath.ac.uk/~edsajw/. See also Haigh’s concept of ‘personal practical knowledge’, which is close to Schön’s and Polanyi’s concepts of personal knowledge – Haigh (1998).5Penteado (2001) came to the same conclusion as Klem and Moran, but she postulated that such confrontation between old and new was inevitable, and that as a result teachers using technology were forced to move from what she called relative comfort zones into risk zones. As a consequence, and at a deep level, teachers required to re-negotiate their educational practice in order to use technology. Applying Penteado’s findings to law leads one to realise that such re-negotiation is a constant process, depending on many factors: stability of an area of law from one academic year to another, feelings of certainty about course content, experience of teaching the course, experience with some of the technology being used or none of it, the perceived riskiness of the technology in use with students, and so on.Some of these points were raised in the legal domain by Alldridge & Mumford (1998), though they drew no distinction between academic and professional stage use of ICT, possibly because in the late nineties neither ICT applications nor specific use by students and staff involved in professional legal education were sufficiently developed or widespread for the distinction to be visible. What is interesting about Penteado’s findings is that it presents us with an unsettling picture of constant change that would appear to be a consequence of the speed of change implicit in Moore’s Law and summarised by Scardamalia above.But there are deeper issues here than personal negotiation of IT processes. Too often our analyses of ICT in education exist at the level of the instrumental and teleological. We need to consider the deeper issues of what we do and why, and above all the context of how we use any technology, whether it be computer, webcast, podcast, blog, interactive whiteboard, photocopier, book, vellum, clay tablet, oral statement. In this respect the analyses that Marilyn Strathern (2000) has made of the role of policy and audit, and her critique of the concept of the ‘virtual society’ are helpful to our present analysis. As she has observed, ‘ICT is a highly visible ally of audit practices. Its speeding up of the performance of office equipment does not just facilitate the production of the audit reports and so forth, but as an entity in itself (as ICT or IT) can be used as an indicator of performance.’ Audit, she suggests, elicits ‘a view of an institution or organisation as a system – as a system, not as a “society”’; and she compares the closed loop of such system analyses with the open-ended analyses of ethnographic practices that treat organisations as social organisms, where disconnections, loose ends, uncertainties and unpredictabilities are not to be tidied away but studied for what they tell us about an organisation’s development and culture.Changing cultures of use and identity Strathern’s observations are enacted by anthropologists of workplace learning such as Lave and Wenger. As they remind us, most learning we undertake in our lives does not consist of lectures and tutorials followed by a two-hour unseen essay assessment in an examination hall. Instead, the vast majority of our learning is situated in the world, and rises out of our actions there. Lave and Wenger’s analysis of Liberian tailors is a classic study of learning in the workplace, where they show how, over time, apprentices are drawn closer into the centre of valued work practices, after demonstrating their ability in peripheral activities (Lave & Wenger, 1991. See also Billett 2001; Engerström, Engerström & Karkainnen 1995; Engerström 2001; Evans, Hodkinson, Unwin 2002). Such activities are important to the developing expertise of the apprentice tailors: they are in effect ways of legitimising practice6and progression within a community of practitioners – hence the title of Lave and Wenger’s text, Legitimate Peripheral Participation. They help to develop ‘shared participative memory’ (Wenger 1998, p 11). As Lave & Wenger put it,Legitimate peripheral participation provides a way to speak about the relations between newcomers and old-timers, and about activities, identities, artefacts, and communities of knowledge and practice. It concerns the process by which newcomers become part of a community of practice. (p 29)As they point out, the slow accretion of learning within the community alters identity as well as practice: indeed, changed identity is the essence of apprenticeship, not merely for apprentices, but for anyone learning new sets of skills, knowledge and values.In many ways the literature on situated learning gives professional educators a body of profound theory with which to view their own practice as teachers, positioned between academia, regulators and practice. But it also shows them an alternative future in the use of ICT in learning and teaching. Technology need not be baffling, dangerous, fraught with anxiety, and a disempowering experience for staff, as Klem & Moran and Penteado report it to be. It can be a process of legitimate peripheral participation, of moving steadily ever inwards, towards more and more complex use of technology in educational design and implementation. Communities of practice and design, in the workplace and beyond it, and learning from the literature, from our own practice and that of others, are essential to this approach. For students are drawn to professional practice, and if ICT is to be integrated successfully into professional educational curricula, one useful way would be to adopt an ethnographic approach to the professional use of IT; to examine how professional practice uses ICT, and adopt versions of it adapted to professional courses.This presupposes, of course, a professional legal educational research culture. The good news is that in terms of the use of ICT, legitimate peripheral participation happens already – what we need to do is to recognise it, build upon it, and construct support networks for ourselves. Most of us are aware of the web, for example; and almost all of us use email. We need to build on that and develop our experience with other forms of communications applications. If we are unsure about using discussion forums with students, why not use them amongst ourselves before we step into the risk zone? The literature is full of guidelines on how to do this well, and there are plenty of forums on the web where it is possible to lurk and read until you catch the drift and tone, and contribute. If chat rooms or SMS, with their multi-pitch audiences and fragmented conversations seem crazily fast and complex forms of communication, why don’t we use them with each other, before we attempt to use them in relation to legal education? For an inspirational example of how students can use such media to good effect, see http://journals.aol.com/transmogriflaw/journey/entries/69. We could also read the literature – see for example Walker (2004); Cox, Carr & Hall (2004). Are we interested in simulation for legal learning? Find out about simulation by joining any one of the many massively multi-user online role-playing games on the web. At a cost of around 12 dollars a month, you will have more fun and grief than you ever thought possible on the web. Do you use personal digital assistants (PDAs)? Why not think about using them for teaching with7students? This has been done a number of times in various areas of medical education, and there is little reason why we should not learn about the local conditions of such implementations and attempt similar innovations in our own discipline (Smørdal & Gregory 2003; and the special issue on wireless and mobile technologies in education in Journal of Computer-assisted Learning, 2005, 21, 3).Above all, we need to build a community of practice where we can discuss ideas, communicate and examine results, compare implementations, and learn from each other. Such a community can help us to learn in a safe environment before moving into the risk zone – as Lave and Wenger point out, the reality of a task is significantly different when it is performed for real rather than in simulated environments. The practice of extending safe zones into zones of risk is a basic human activity. It defines us and identifies us to others around us. We become who we are as a result of it and learning becomes, quite profoundly, a part of us. If professional educators (institutions as well as individuals) are to risk innovations and the unintended consequences that the epigraphs quoted above caution about, then they need to start in the safe zone, practise there; then move out of it into the riskier areas of practice. The process requires an infrastructure that supports this movement. It also requires ahead of us the challenges that we can move into from our current positions. Staff development within communities of practice is a key to this, and in particular helping staff to: Explore the fit between their personal theories of teaching and learning, and those embedded in forms of innovative teaching Access resources that support them in learning to use new technology Acknowledge and address their fears about teaching innovation in a constructive way Access examples of good practice and successful implementationsOut of this can arise the materiel for research publication — state-of-the-art papers, meta- analytic research reviews, narrative reviews, best-evidence syntheses, forum papers, methodological reviews, thematic reviews and much else. In the next section I shall give an example of this happening in one area of my own experience of ICT, namely the use of discussion forums.Dialogue, I In 1996 I ran a first version of a Personal Injury Negotiation Project, with around 20 students, using MS Mail client, on Windows 3.1.1. The project ran within a level 3 Clinical Legal Skills module on the BA Law with Administrative Studies programme, Glasgow Caledonian University. Within the project students responded to me and to each other by email, and project instructions and the client matter were set out in paper-based confidential instructions. Students were divided into ‘virtual firms’ of two or three students. Half the firms acted for claimants, while the other half consisted of solicitors for the insurers. In both technical and communicational terms the system was crude, and because the network was8prone to crashing it required constant technical maintenance; but over the following three years it enabled me to develop a basic repertoire of dialogic moves with students over email (ie familiarity with the types of questions that students asked in the project environment, and best ways to answer them – see figure 1 below). It gave me confidence that I could deal with student questions on the broad range of issues that I expected they would want information, namely:1. procedural & substantive issues relating to the transaction.However I found that students asked other sorts of questions:2. technical issues – how to carry out particular procedures, for instance3. ‘realia’ issues – how real does the simulation become? Eg were the clients to be billed? The more real the project became with each succeeding year, the more pressing and interesting these questions became4. interpersonal problems that arose between firms negotiating with each other5. interpersonal problems that had arisen within firms, either interpersonal or workload-related (eg freeloaders in a firm, or quality of work produced by one firm member being perceived as below-par, and the like)In addition students wanted to communicate confidentially at times. They wanted to email each other, email other firms on the same side of the negotiation, and email me as tutor. There was no equivalent of a private chat facility in the single email channel that could accommodate this. It became clear after the two years of running the project that the complexity of the environment demanded more than a single point of information, and that the informational structure of the environment would need to be re-planned. My personal use of email had given me the confidence to embark on the project; but the simulation project required not a univocal channel of communication, but an architecture that was much more polyphonic and flexible in order to accommodate the communicational requirements of the students as well as the complex relationship between simulation and reality.Figure 1: PI Negotiation Project 1997 – paper-based and email-based information flows9On the basis of this experience, in 2000 for the first time discussion forums were used on the project, which now ran within a quite different institution and progamme of study, and with a student body of around 159 students.4 We set up separate forums for the claimant firms and the defender firms, and began to address points 2-5 above. For point 2., students were given better training in the use of the online environment, and thereafter queries were dealt with by the FAQ or as a last resort, technical support. To deal with point 3, we used FAQs that were reviewed each year on the basis of points raised by students during the project. A4 The project was developed further for the Diploma in Legal Practice at the newly-founded Glasgow Graduate School of Law, a joint graduate school between the law schools of the universities of Glasgow and Strathclyde. The forums were initially programmed in ColdFusion, and are now part of the MS SharePoint Services suite of facilities. For brief descriptions of this project, see Maharg & Paliwala 2002; Maharg 2004a & 2004b. To see the public-facing simulation environment, see http://www.ardcalloch.org/. There is discussion of the project in a games conference, State of Play II, New York University Law School, on the Terranova blog at http://terranova.blogs.com/terra_nova/2004/11/state_of_play_2.html. For an equivalent in the context of legal education in the Netherlands, see http://www.frg.eur.nl/lia/icto/projecten/rechtenonline/sieberdam.pdf.From this point on in the article, when I refer to ‘we’ the pronoun includes Scott Walker, now Learning Technologies Development Officer, but in 2000 the only technical officer in the GGSL. Scott’s input, conceptually and technologically, has been crucial to the development of the learning environment and the suite of tools associated with it. On the technical side he was later joined by Michael Hughes, now one of our applications developers. Other academics made invaluable contributions to the development of the concept of virtual transaction – Patricia McKellar, Karen Barton, Fiona Westwood. Without their sustained creativity, innovation and hard work the concept would have remained far less developed than it is now. A number of practitioners deserve special mention. Leo Martin, co-Director of Legal Practice Courses, Visiting Professor and founding partner of Sinclair McCormick Guisti Martin, developed the resources and structure of the Conveyancing transaction, and gave us much valuable advice and support on transactional learning generally. On the PI transaction the work of Charles Hennessy, founding partner of Hennessy Bowie and Visiting Professor to the GGSL, has been crucial at almost every level – resource-drafting, negotiation strategy, forum co-facilitator, mordant wit at dark moments…Resources:Project description in module handbook5 claimant groups5 defender groupsPI facilitator emails documents on request: (NB no role play) email emailemail10year later, once the project had migrated from MS Outlook to a fully web-based project, we dealt with point 4 by creating a ‘deal-room’ area online for the students, whereby they could negotiate direct with each other. Several solutions were adopted for point 5, none of them entirely satisfactory, until we began to think seriously about the social and phenomenological nature of the problem. This is described in detail elsewhere (Barton & Westwood 2005). The solution that worked best was to use tutors on the Diploma’s Practice Management course as actual practice managers to the virtual firms. In many ways this was a break-through for us. The tutors served as both mediatory and disciplinary figures for the firms, as appropriate. We hoped that issues under point 1. would channel to the forum. But the occasional students would still email me privately. Where it was of little use to the others, I would respond; but where an issue was useful to all, I did not reply to the person privately, but asked permission to quote anonymously & comment on the forum.The forums have run every year since then to support student learning. Now, the student year group of around 275 – a more than tenfold increase in student numbers on the original project– is divided into virtual firms.5 There are, therefore, two forums, each passworded – one for the claimant group of firms, and one for the defender firms. The postings are answered by myself and a practitioner, a Visiting Professor to the GGSL, Charles Hennessy. The discussion threads tend to be brief: often a single posting, answered by Charlie or myself. Sometimes students will follow up with a qualification or supplementary question, but the conversation largely consists of ‘how-to’ questions and replies. This suits the nature of the information that students need at this level of their learning in the project. With no formal classes, apart from a voluntary ‘surgery’ held by Charlie, this is the only way for students to obtain expert advice on this particular transaction (they can of course obtain general advice on PI transactions from textbooks, but we want them to learn the specifics, and learn from the specifics, of handling a transaction).By any standards of natural, face-to-face conversation, the postings are shallow, abrupt. There is rarely any extended conceptual discussion. They mostly concern factual or procedural matters, with the occasional matters of negotiation strategy being discussed. If one were to imagine the threads as topics of conversation in a tutorial, they would be disjunctive and irritating to listen to. But students are not listening to a conversation in real time: they are reading a slowly evolving list of Q & As that is relevant to the progress of their own transactional files; and for this reason, the discussion forum succeeds as a method of disseminating ideas, guidelines and practice that is directly relevant to the students’ own learning in the project.5 By the term ‘virtual’ I mean that the main representation of the work of the firm is present on the firm’s web pages. ‘Virtuality’ has become rather a modish term for anything to do with the internet. However it could be argued that the concept, vague as it is, has a long history within Western artistic practices. In the 16th century Giovanni Battista della Porta’s walk-in camera obscura was one early example, as were nineteenth century cinematoscopic experiments, such as Simon Stampfer’s invention of the phenakistiscope (literally, ‘deceptive view’ – see http://en.wikipedia.org/wiki/Phenakistiscope), in 1830, and the remarkable Charles Wheatstone’s invention of the stereoscope in 1838 (http://en.wikipedia.org/wiki/Stereoscope).11The forums succeed, therefore, but they do so because they fulfil a need on the course. There is a deliberate lack of face-to-face classes: to get information and knowledge, students must enter their forum to scan for answers to their questions, or post questions themselves. The forums were designed to take this form: students will seek for information by the quickest and most intuitive route – almost invariably, face-to-face from tutors. The forums supply information that is, in one way, highly constrained; but in other

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