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.

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/

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