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.