Do Lawyers Need Scholars?

This is my talk to UCL’s debate on legal education: do lawyers need to be scholars? I have amended it slightly to read as a blog rather than a talk.

If we leave the question at ‘do lawyers need to be scholars’ it is a relatively simple answer of no. We do not need practicing lawyers to be devoted purely to the pursuit of knowledge. We cannot expect it of them nor would it be in their client’s best interests. Lots of lawyers do not have to think or learn in the scholarly sense. They understand, research, diagnose, advise, act.

We should also understand that much of what legal education does is filter students. What firms are really interested in is the best candidates. They go to the universities they regard as the best, and those universities pick whom they regards as the best students. There are flaws in the judgments of universities and firms, but the reputation and quality of UK Universities is a key part of the reputation of UK firms. And the ability of UK universities to attract the best students – which will be an increasingly global not national competition – will be a key part of that.

And partly for that reason, I believe an international reputation for scholarship in Universities is one reason why lawyers need scholars. The best students come to where the best brains are. I do not believe that guarantees them a good education but it is a key dynamic of the market.

There is something slightly unsavoury and elitist about this argument. There is a social mobility problem. It is a serious problem. This leads onto my second point: how do we know it is a problem? The ways in which firms and universities select law students exacerbates social inequalities. Makes diversity problems worse. How do we know? We know because of researchers, scholars painstakingly making the case, collecting the data, and then persuading (with only partial success so far) policy makers, managers and leaders to take it seriously.

This is the first of many examples of where scholars perform a key public interest. I and my colleagues at Cardiff have acted as specialist advisers to Parliament on subjects ranging from legal aid, to mental health and the regulation of gambling. One redrafted the entirety of Irish Land Law another has drafted Community Care legislation. Our work is influential on lawyers costs, family justice, personal injury settlements and penal policy.
I should also say we are by no means atypical. To mention some of my fellow panel members: Hazel Genn’s work on mediation and access to justice has been very influential. As has Stephen Mayson’s work on reserved lefgal services. And if anyone doubts the significance of proper academic scrutiny, then I can do no better than highlight Phillipe Sands’ work on the questionable conduct of government lawyers’ involved in various international law controversies.
It is usually true in a general sense, and is particularly the case with Phillipe’s work, that scholarly work is a key defence of the rule of law. Scholars cannot usually stop politicians doing the things that they want to do but we make it more difficult and we can reshape policy to be informed. Lest the profession think this is nothing to do with them, that universities should simply train lawyers in narrow technical skills, I point to the current swathe of reforms going through parliament. The professions have been reminded too late, I believe, on the legal aid debate, of the need for independent research to shape reform.
My final point is that the professions and the academy need each other and they need to be much more imaginative. To educate is to presume we know in the first place. Neither practice nor University knows all there is to know about law. Law is a social, economic and psychological world as well as a legal one. It is also a world in constant flux. Law students and lawyers need to be life long learners in the legal world and the real world.

The best way for the profession to seek to maintain and develop its status is to make sure its members are educated to the highest standards, with knowledge from the finest minds, based on the best knowledge about their discipline there is. To assist in this the professions should be investing in research on legal services and law. And academics should be more interested in the realities of practice.

Let me give you one example. Many of you will have been taught negotiation. Where does the knowledge behind that training come from? A large part of it will have come from the Harvard Negotiation Project. Where is the UK equivalent? I advocated a while back that there should be a UK Advocacy Project, for instance, to build on the reputation of the Bar.

As student fees increase, English and Welsh students may go elsewhere unless law schools compete with the global elite. This requires investment from the professions, a recognition that there some mutuality of interest, and opening up of the professions (and the academy) to serious research on legal professions and legal services. Legal education is not the handmaiden of the profession but there is a great deal to be gained from a more mature relationship with it.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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5 Responses to Do Lawyers Need Scholars?

  1. Richard

    There is no need to conflate the value of academic research and support for governmental inquiry with the skill sets needed for good legal practitioners – or at least I hope not. Undergraduate law teaching should not be a sausage machine, and a research ethos and run rate should still mark any academic team out on the usual principles. In my experience Government in particular never asks a question it does not already know the answer to.

    As you know I have said for years now that the clients want expedition, not erudition. The protectionist approach through qualifications makes this harder, not easier, and is counter productive for the profession over the long term. You simply do not need 4 A*s, a first from a 1994/Russell ‘name’, and a masters to shovel template documents through the Big firm hopper, let alone the county court possession day rota. And not everyone will see the rarified intern/hot-house/super-high-super-short-salary/tourettes-ridden peak as a place that it would be wise or fair to put a proportionate number of diverse backgrounds into.

    The fundamental assumption that academic selection – especially at the rarified peal involved here – necessarily produces better problem solvers is unhelpful.

    I hope you now feel better informed – even if none the wiser.

    Happy new year

    • Richard Moorhead says:

      My basic view: academic selection is both under and over inclusive. It gets some duds and it misses some stars. It’s also skewed towards particular backgrounds in a way which is somewhat independent of ability. Overall, though, academic ability is a reasonably strong indicator of competence.

      On the gov research thing – to be fair to them they sometimes DO ask questions to which they do not know the answer, but there are certain questions they will NOT ask (questions which will directly challenge favoured policy are rare; questions which build answers for the long term are less so). A lot depends on the quality of policy makers and research directors in government organisations. The MoJ is now dominated by criminal justice concerns and never had much of a history of funding research. The litigants in person research I did for them is an exampke of a project which they did, they did not know the answer, its been used against the government now. The LSC, interestingly, did rather better but we’ve seen with LASPO how quickly that work can get swept aside.

  2. Nick Armstrong says:

    I agree, but the links are (or should be) also more direct. You have to be at least a bit of a scholar, and probably quite a lot of a policy wonk, to succeed at the public law Bar. All the key people there are experts on the subject as well as the law: see eg David Wolfe on education; Raza Husain on refugee law; Karon Monaghan on equality; Steve Knafler on community care; Hugh Southey on prison law. Plus the bigger cases definitely require full scholarly input: hence people like Philippe Sands, Conor Gearty, Aileen McColgan, Takis Tridimas, Guy Goodwin-Gill being both academics and barristers. Much of my day to day is very like being a PhD student or post-doc research fellow. Matrix do a lot of cross-fertilising between the Universities and the Bar, as do Blackstone. There should be more.

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