And now for something completely different: Statutory interpretation

And now for something completely different*

I started my LLM thesis when I was still in private practice. My thesis was designed to tackle a very practical black-letter law problem I had encountered in my practice as a property lawyer. In analysing the issues however, I branched out way beyond my comfort zone into some theoretical areas - law and economics, feminist legal theory and critical legal studies. Before developing my thesis proposal I had not even known that such things existed. This was a product of my largely doctrinal undergraduate experience and my immersion in commercial law practice.

During this time however I read Nick James' 'Brief History of Critique in Legal Education' - before I knew that legal education was even a thing. Now that I know a little more about legal education, Nick's paper continues to inform my thinking. It is a useful reminder to me that despite the monolithic appearance of the law and the appearance of solidity of the term 'the profession', that they are subject to change. As Nick's paper makes clear also, Australian legal education has been characterised by shifts between the practical and the academic, culminating in the ascendancy of the professional legal academic.

The degree remains subject to judicial oversight through the Law Admissions Consultative Committee ('LACC'). Its structure, moreover, must conform with the so-called Priestley 11, the 11 core subjects considered to represent the cohesive body of discipline knowledge requisite for legal practice.

Since the Priestleys were mandated in 1992 there have been a number of seismic shifts that have generated debate about their utility and relevance. There are greater numbers of law students not going on to practice; increasing globalisation of legal practice; increasing specialisation of practitioners; and growing emphasis on legal skills and soft skills rather than doctrinal content alone. LACC is presently considering whether to do a small adjustment to the Priestleys, but the question I'm interested in pursuing here is possibility of a Priestley 12 - the inclusion of statutory interpretation.

Law reform is a 'frontline service'

Integrated frontline services

Under the Legal Profession Act 2007 (Qld) ('LPA'), the Minister may approve grants for the purpose, amongst other things, of 'the advancement of law reform.' Grants come from the Legal Practitioner Interest on Trust Accounts Fund ('LPITAF'). In 2012 the Attorney-General ordered a review of the application of these funds ('LPITAF Review'). The focus of the review was the alignment of fund distribution with the government's strategic objectives of 'front line' service delivery.

On 26 November, the Queensland government introduced the Justice and Other Legislation Amendment Bill 2014 ('Bill'). The omnibus bill seeks to amend over 30 Acts including s289(1)(h) of the LPA - the provision for grants to advance law reform. Instead, the proposal is that funds may be applied under this subsection only for the purpose of:

facilitating access to the legal system, legal information and education and legal services for members of the community, particularly economically or socially disadvantaged members of the community.

This captures many of the previous purposes of the grants, but not the advancement of law reform.  The Bill states that this amendment

reflect[s] changes as a result of the implementation of recommendations resulting from the Review of the Allocation of Funds from the Legal Practitioner Interest on Trust Accounts Fund

The LPITAF Review, however, did not recommend removing law reform from the purview of the fund. Even if it did so, this amendment ignores substantial evidence about the strategic nature of investment in law reform work in the efficient and effective delivery of justice, particularly to economically and socially disadvantaged members of the community.

In other words, the proposed amendment directly contradicts the government's stated strategic objectives. This proposed amendment should be rejected.

Legal education in a digital context

Technology of the past? Or for the future?*

In my last post, I reflected on the future of legal education. I focussed on the importance of learning law in broader contexts and one of those contexts I called digital literacy. It was this idea that attracted the most attention on Twitter, and one that I am starting to work with in our own curriculum.

While I am not an expert in digital technologies, I am interested in thinking progressively about the law and justice, and consequently about legal education. Others are expert in digital pedagogies, e-publishing, legal informatics, information visualisation, altmetrics, coding, e-discovery, intellectual property, e-commerce, e-research and the future of legal practice. I seek to draw together these spheres of thought to develop a coherent discipline-specific and overarching rationale for digital literacies to inform the law curriculum.

In this post I will develop the idea of digital literacy in the law curriculum. I will explain what I think it might mean as a broader context for the study of law: as a lens through which to develop knowledge, skills and attributes central to the discipline.

The future of legal education

Are lawyers prepared for the future?*

At the 2014 Australasian Law Teachers' Association conference, I will be participating in a plenary panel discussing 'Creating a Better Future for Legal Education'. In this post I outline some of my thoughts on this topic, in the hope that readers might share their own views and challenge my own.

My focus here will be on where I would like legal education to go in the next 10 years, and what changes legal academics need to make now to achieve that vision. In short, in my view legal education must challenge the existing silos of doctrinal specialisation and embrace the broader context of the law. This aligns with calls to break down barriers between university disciplines themselves, to deal with the 'big problems'.

Educating the legal profession about gender

'The woman lawyer will bring justice to her profession'*

The recently released NARS Report is the latest in a long list of studies of the pervasive sexism in the legal profession. It makes a number of excellent and practical recommendations to facilitate women's engagement in legal practice and consequently their retention and advancement.

There are various arguments for the retention and advancement of women practitioners - from gender equality, to sustainability of the profession, to the administration of justice. Despite this, and the decades of recommendations on equality, the legal profession remains as sexist as ever.

This period of mounting awareness of sexism as a problem has coincided with what Thornton regards as a prevalence of the corporatized law school. This has accompanied the scaling back of the critical project as a feature of legal education, including gender perspectives in law. At the same time in higher education more broadly, women's studies as a discipline have been wound back.

In light of what seems to be an urgent issue for the profession, is it now time for legal education to integrate gender into the curriculum?

Thinking Like a Lawyer – the Good the Bad and the Ugly

First year law students are invariably regaled with the mantra of learning to think like a lawyer: that law school is all about developing this skill.  As some have identified, 'thinking like a lawyer' is a nebulous concept at best, or at worst, a 'self-aggrandising sham...to justify the existence of a...special lawyer class'. 

There is however a mounting body of evidence to show that the culture of the law, including the way that lawyers think, is linked to stress experienced by law students and legal practitioners alike. (For example, see here and here.) 

While this creates issues for the sustainability of the legal profession as it sees an exodus of early- and mid-career practitioners, and women in particular, I believe it also takes a toll on the personal lives and relationships of lawyers.

A Reflection on the Mabo Case

There has (rightly) been a lot of celebration and a lot of discussion in the mainstream media and social media about today, Mabo Day - the 20th anniversary of the landmark High Court decision that has changed the course of land rights in Australia, and a few other things also.

I've been reflecting on the Mabo decision and what it represents for me - a non-Indigenous Australian property lawyer.  To me, the case is about subverting the legal system; it's about representations of identity and how we invest power in the law to do so; and it's about creative thinking - particularly creative legal thinking.

Getting in (to practice) and staying in... How hard can it be?

And meanwhile, in the world of cultural capital, I posted as a guest on Amicae Curiae recently on what women - and men - wear to work and whether it matters.  Personally, I believe it does matter.  Simon McKay has posted this week too on cultural capital (though he doesn't use the term) in terms of entry to the profession.  See what you think.

Professionalism and Sustainability in Lawyering

I have not long returned from the beautiful city of Vancouver in Canada, having attended the eighth International Conference on Environmental, Cultural, Economic and Social Sustainability.  What has been interesting about the conference has been the capacity of quite diverse academic and professional disciplines to converge in terms of their theoretical approach.  That is to say, each presenter at the conference offered the opportunity to re-imagine an aspect of our world in terms of sustainability.

One aspect of thinking about sustainability that struck me in particular from a number of presentations is the dimension of what I'll call professional thinking.  For example one speaker discussed the effect of sustainability assessment tools in architecture competitions on the design of sustainable buildings.  Her point, as I understood it, was that a more 'checklist' approach to architecture may detract from a more wholistic or qualitative approach.  The latter approach would take into consideration factors that could impact (positively) more completely in terms of sustainability or eco-design.

Another speaker discussed the role of tertiary education in teaching our teachers.  Amongst his points was that our graduates need humility and gratitude: teaching involves gratitude for the opportunity to serve and is humbling in the recognition of the centrality of the teacher's role.  Such attitudes, in conjunction with a keen sense of community, lend themselves to a philosophy and approach as a professional that embody interconnectedness and engagement with both community and the natural world - preconditions for educating youth in and for sustainability.

Both these discussions resonated in terms of legal education and indeed the practice of law.  The revision of the LLB at my own institution involves embedding sustainability as an overarching concept: a lens through which to learn the content mandated by our professional bodies.  But importantly, it also provides a pedagogy or a strategy or approach for teaching that aligns with what I took from the two discussions above.

The legal profession in Australia has for some years been asking why so few women are partners in private practice; why there are so few non-metropolitan practitioners; why (law) student wellness is such an issue; why there are high reported rates of practitioner mental unwellness...

Based on these now well-known issues, there are moves in legal education to incorporate different ways of teaching law: methods of teaching that encourage resilience, a reflective approach to practice and self-management.  These intersect with a greater emphasis on ethics - a move away from a traditional approach to ethics as a set of professional regulatory rules, to a more embedded approach that incorporates also 'soft' skills in communication and a more qualitative understanding of the nature of professionalism.  It seems that the academy and the profession is in agreement about the need for a new approach (see eg here).

And so to what I took from the speakers at the sustainability conference.  If we continue to teach our law students rules without context, and abstracted legal reasoning without attention to self, we run the risk of leaving a profession that is unsustainable. One which cannot support the justice system and serve society. One in which it is not sustainable for individuals to continue to practise.   Sustainability is a complex concept and poses particular problems for lawyers who prefer to have a tight definition; and who see sustainability in law merely in terms of environmental regulation.

Sustainability is much more than this.  It relates to our world and our place in it.  It relates to law as justice in both human, environmental and ecological terms.  It relates to our profession and to society; practitioner and client.  It relates to our personal and our professional self.  All of these aspects are inter-related and it is our responsibility to educate professionals who have the capacity to understand this and to experience these facets in a wholistic way.

Knowing laws does not make a professional and as with criteria for an architecture competition, adherence to a checklist of laws will not address wider and contextual issues that represent the essence of lawyering.  As with teacher education, humility and gratitude embody the intersection of personal and professional, or two sides of the same coin.  Our students deserve the opportunity to engage in their development during their study of law, and our profession and society deserves graduates who have this capacity.