Space, absence, silence:learning and the regulation of legal

education

Professor Paul MahargANU College of Law

http://paulmaharg.com/slides/

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‘The recordings are records of an absence, the absence of sound, but an absence which is also a highly political presence.’Adrian Gregory, quoted in Maev Kennedy, ‘CD art and the sound of silence’, The Guardian, Friday 9 November 2001, http://www.theguardian.com/uk/2001/nov/09/maevkennedy.

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meaning derives from the relationship between reader and text and cultural context

much as in music performance, the gaps or spaces in the narrative or form are as important to reader understanding and engagement as the information on the page.

Meaning is thus shaped not by information alone, but by the deliberate absence of information and what readers feel and understand when faced with such a gap.

Louise Rosenblatt: reader-response theory

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[Image of Nora Heysen, Self-portrait, with permission of copyright holder and the Art Gallery of New South Wales]

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‘The Experimental group’s decidedly weaker result could be explained as a kind of technification of the learning process; the subjects possibly develop a strategy for picking up information that is necessary for answering the (inserted) questions that they know they are going to be asked. A fixation on the specific questions […] may result in their no longer proceeding via the text but rather around it.’ (45)

Marton: eroding the learning space

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It is not that in-text questions are no good (there are certainly examples of the successful use of in-text question in the literature), or that there is no point in trying to help students to study more effectively. […] It may be unwise to try to improve the quality of learning by observing and charting what good learners do and teaching the poor learners to do the same things. The focus seems misplaced; it is on students and interventions separately, rather than on the interaction created through the learners’ perceptions of the world around them.’

Ramsden, P. (1987). Improving teaching and learning in higher education: the case for a relational perspective. Studies in Higher Education, 12, 3, 275-86, at 278 (my italics).

Ramsden: relational perspective

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1. the student’s awareness of a closely-integrated body of knowledge;

2. the quasi-sensory representation (often visual) of this corpus;

3. a movement from unfocused and episodic remembering to much more detailed and coherent knowing;

4. structure of the knowledge object itself.

‘the nature of the knowledge object formed will depend crucially on the range of material incorporated, the effort put into thinking about that material, and the frameworks within which the knowledge object is developed.’

Entwistle, N. and Marton, F. (1994) Knowledge objects: understandings constituted through intensive academic study, British Journal of Educational Psychology, 64, 1, 161–78, at 174-5.

Entwistle & Marton: knowledge objects

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Three-part experiment: essay 1 :: feedback in conference :: essay 2: Conference focused initially on writing structure Based upon the work of Scardamalia and Bereiter (1986, 797–8) Procedural facilitation, not substantive facilitation, was

emphasised in the conference The argumentational models students structured and the writing

heuristics they experimented with in one unassessed essay were then used in a subsequent assessed essay in the module

It became clear after the first few conferences, and on studying the transcripts, that it was difficult for students to discuss the structure of their writing without discussing the social and performative aspects of it, within the context of their own experience of text production.

case study 1: affective sociolinguistics and student writing

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Interviewer:… do you think … you’re unsure about your writing?

Ian: I don’t think - not too much. I suppose there is maybe a possibility that I just don’t want to be cornered - I don’t want when I’m writing the essay to put it as if - I don’t want to be cornered to look as if I haven’t got a clue what I’m talking about. So you try and cover as much ground as you can, if you know what I mean, so that you don’t, you aren’t totally wrong rather than following one chain of thought and then ‘Oh that’s completely wrong’. If you try and make it a little bit more broad then you’ve got a better chance of not being wrong. But it’s maybe just a habit I’ve got into trying to do that because I think in a lot of the exams I did in the Higher there wasn’t maths or anything like theory, it was like Modern Studies, Geography, Economics, English. A lot of essays I had to write in the exam. I think that’s what’s got me into the habit of it, writing like that, so that when the marker comes to mark it, it’s not - they can’t say ‘Oh that’s right or wrong’. I’ve tried to cover myself.

extract: the writing conference

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effect of conference…?

Ian expresses anxiety: shift between first & second person. ‘Covering’& shame: the knowledge engenders

processes and strategies that block and inhibit writing critically – not uncommon in student writing (Gee 1996).

Ian’s writing is insular, produced only for adjudication, not in any sense a practice. It was based on fear and anxiety, and became silent, inarticulate. It was an absence, a space of dread and frustration for him.

The affirmation that emotion mattered in writing was key. The conference helped Ian (to put it in Derridean terms) to

substitute for the space of anxiety his own centre of significance as part of the process of writing and legal interpretation

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Redesign writing & research spaces Foster collaborative writing & critique

‘fans of a popular television series may sample dialogue, summarize episodes,debate subtexts, create original fan fiction, record their own soundtracks, make their own movies – and distribute all of this worldwide via the Internet.’ (16)

approaches to writing that would help Ian

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Fiction Alley

http://fictionalley.blogspot.com.au

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Good coaching practices for development of writing

Potter fan fic sites

1 Create a specific site for writing

Eg www.fictionalley.org (Jenkins, 179)

2 Provide mentors for new writers

‘forty mentors … welcome each new participant individually’. (Jenkins, 179)

3 Set up peer-review ‘At The Sugar Quill, www.sugarquill.net, every posted story undergoes beta reading’. (Jenkins, 179)

4 Provide critique ‘constructive criticism and technical editing’ is provided. (Jenkins, 179)

5 Introduce writers to multiple drafting

‘New writers often go through multiple drafts and multiple beta readers before their stories are ready for posting’. (Jenkins, 180)

what we can learn from Potter fan fic sites

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only the beginning…

‘For adults as well as children, affirmation, holding and inclusion, especially for those on the margins, provides a basis for existential legitimacy, core cohesion and authentic engagement in the world. The problem has been that education and educators have lacked a compelling language to interpret and theorize the intimate dimensions of learning and self-development within a connected and historical frame of reference: or, to state it differently, to interpret what it takes, emotionally, socially as well as intellectually, to keep on keeping on even in the most oppressive and fragmented of times.’

West, L. (1996). Beyond Fragments. Adults, Motivation and Higher Education: A Biographical Analysis. London, Taylor & Francis, 208, my emphasis

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case study 2: comms, spaces & emotion

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1. Information managementBetter, more powerful and social, platforms

2. Managing voice, register and genre on digital platformsFocus on a post-digital Ciceronian rhetoric

3. Socialising processes in relational spacesCreate a zone, where students can discuss and reflect on their work, try out identities that are at once professional & maybe cool, make mistakes or learn from others’ mistakes, and learn how to communicate consistently & accurately with colleagues, in any register.

problems and approaches in case study 2

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‘Wisdom is not the only virtue that is having a poor time of it in the modern university. Patience, humility, generosity, perseverance, thoroughness, carefulness, quietness: these might once have been felt to be signs of a strength of character. No longer. In an age of self-promotion, self-presentation, visibility, efficiency, work-rate, personal performance indicators and sheer competitiveness, character traits such as these come to be seen as signs of personal weakness.’

Barnett, R. (1994). The Limits of Competence. Knowledge, Higher Education and Society, Buckingham: Open University Press, 151–2

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‘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 the first Qualifications for human Society and for Active Life.’

Adam Ferguson, Lectures, 1775-6, MSS, University of Edinburgh

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1. Space & absence is integral to the regulation of education2. Regulation easily erodes into technification of regulation3. Shared space is an approach that can improve regulation

and the quality of legal education

regulation of legal education

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Legal Education & Training Review (LETR)

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Address the following issues:

1. What are the skills/knowledge/experience currently required by the legal services sector?

2. What skills/knowledge/experience will be required by the legal services sector in 2020?

3. What kind of legal education and training (LET) system(s) will deliver the regulatory objectives of the Legal Services Act 2007?

4. What kind of LET system(s) will promote flexibility, social mobility and diversity?

5. What will be required to ensure the responsiveness of the LET system to emerging needs?

6. What scope is there to move towards sector-wide outcomes/activity-based regulation?

7. What need is there (if any) for extension of regulation to currently non-regulated groups?

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1. What are the skills/knowledge/experience currently required by the legal services sector?

2. What skills/knowledge/experience will be required by the legal services sector in 2020?

3. What kind of legal education and training (LET) system(s) will deliver the regulatory objectives of the Legal Services Act 2007?

4. What kind of LET system(s) will promote flexibility, social mobility and diversity?

5. What will be required to ensure the responsiveness of the LET system to emerging needs?

6. What scope is there to move towards sector-wide outcomes/activity-based regulation?

7. What need is there (if any) for extension of regulation to currently non-regulated groups?

See esp Lit Rev, chapter 3, ‘Legal education and conduct of business requirements’, http://letr.org.uk/wp-content/uploads/LR-chapter-3.pdf

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Colin Scott’s approach: ‘a more fruitful approach would be to seek to understand

where the capacities lie within the existing regimes, and perhaps to strengthen those which appear to pull in the right direction and seek to inhibit those that pull in the wrong way’

‘meta-review’: ‘all social and economic spheres in which governments or others might have an interest in controlling already have within mechanisms of steering – whether through hierarchy, competition, community, design or some combination thereof’ (2008, 27).

modalities of control

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Norms Feedback Behaviour-al modifi-cation

Example Variant

Hierarchical Legal Rules Monitoring Powers/Duties

Legal Sanctions

Classic Agency Model

Contractual Rule-making & Enforcement

Competition Price / Quality Ratio

Outcomes of Competition

Striving to Perform Better

Markets Promotion Systems

Community Social Norms

Social Observation

Social Sanctions, eg Ostrac-ization

Villages, Clubs

Professional Ordering

Design Fixed with Architect-ure

Lack of Response

Physical Inhibition

Parking Bollards

Software Code

Modalities of control (Murray & Scott 2002)

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regulatory alternatives?

Shared spaces concept in traffic zones: Redistributes risk among road users Treats road users as responsible, imaginative, human Holds that environment is a stronger influence on

behaviour than formal rules & legislation.

‘All those signs are saying to cars, “this is your space, and we have organized your behaviour so that as long as you behave this way, nothing can happen to you”. That is the wrong story’. Hans Monderman, http://www.pps.org/reference/hans-monderman/

Makkinga, Friesland. (Hamilton-Baillie (2008), 168, fig.5.Photo Andrew Burmann)

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participative regulation

Portrait of the regulator as: Not QA but QE – Quality Enhancer, to focus on culture

shifts towards innovation, imagination, change for a democratic society

A hub of creativity, shared research, shared practices & guardian of debate around that hub

Initiating cycles of funding, research, feedback, feedforward

Archive of ed tech memory in the discipline Founder of interdisciplinary, inter-professional trading

zones Regulator as democratic designer

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LETR recommendation

Recommendation 25A body, the ‘Legal Education Council’, should be established to provide a forum for the coordination of the continuing review of LSET and to advise the approved regulators on LSET regulation and effective practice. The Council should also oversee a collaborative hub of legal information resources and activities able to perform the following functions:

Data archive (including diversity monitoring and evaluation of diversity initiatives);

Advice shop (careers information); Legal Education Laboratory (supporting collaborative research and

development); Clearing house (advertising work experience; advising on transfer

regulations and reviewing disputed transfer decisions).

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references

Barnett, R. (1994). The Limits of Competence. Knowledge, Higher Education and Society, Buckingham: Open University Press. Belenky, M.F., Clinchy, B.M., Goldberger, H. and Tarule, J.M. (1986). Women’s Ways of Knowing: The Development of Self, Voice, and Mind. New York, Basic Books.Entwistle, N. and Marton, F. (1994). Knowledge objects: understandings constituted through intensive academic study, British Journal of Educational Psychology, 64, 1, 161–78Hamilton-Baillie, B. (2008). Shared space: reconciling people, places and traffic. Build Environment, 34, 2, 161-81.Kennedy, M. (2001). CD art and the sound of silence. The Guardian, Friday 9 November. http://www.theguardian.com/uk/2001/nov/09/maevkennedy.Legal Education & Training Review (2013). Available at: http://letr.org.ukMarton, F. (1976). On non-verbatim learning. II. The erosion effect of a task-induced learning algorithm. Scandinavian Journal of Psychology, 17, 41-48.Monderman, H. (n.d.) http://www.pps.org/reference/hans-monderman/Murray, A., Scott, C. (2002). Controlling the new media: hybrid responses to new forms of power. Modern Law Review, 65(4), 491-516. Ramsden, P. (1987). Improving teaching and learning in higher education: the case for a relational perspective. Studies in Higher Education, 12,

3, 275-86.Rosenblatt, L. (1978). The Reader, the Text and the Poem. The Transactional Theory of the Literary Work. Southern Illinois University, Southern

Illinois University Press.___________ (2001) Interview. http://www.education.miami.edu/ep/rosenblatt/Scardamalia, M. and Bereiter, C. (1986). Research on written composition, in Handbook of Research on Teaching, edited by M.C. Wittrick. Skokie,

IL: Rand MacNally, 778–803.Scott, C. (2008) Regulating Everything. UCD Geary Institute Discussion Paper Series, Inaugural Lecture, 26 February. West, L. (1996). Beyond Fragments. Adults, Motivation and Higher Education: A Biographical Analysis. London, Taylor & Francis.

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Email: paul.maharg@anu.edu.auWeb: paulmaharg.com