Australasian Law Teachers Association (ALTA) 2013 conference, keynote presentation.

1. Space, absence, silence:
learning and the regulation of legal
education
Professor Paul Maharg
ANU College of Law
http://paulmaharg.com/slides/

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7. ‘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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8. Louise Rosenblatt: reader-response
theory
 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.
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9. 9
Copyright granted: Art Gallery NSW
[Image of Nora Heysen, Self-portrait, with permission of
copyright holder and the Art Gallery of New South Wales]

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12. Marton: eroding the learning space
‘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)
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13. Ramsden: relational perspective
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).
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14. Entwistle & Marton: knowledge objects
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.
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15. 15
Thanks to Doug Belshaw

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17. case study 1: affective sociolinguistics and student
writing
 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.

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18. extract: the writing conference
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.
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Quoted with permission
Interviewer:… do you think … you’re unsure about your writing?

19. 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
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interpretation


20. approaches to writing that would help Ian
 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)
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21. Fiction Alley
http://fictionalley.blogspot.com.au
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22. what we can learn from Potter fan fic sites
Good coaching practices for
development of writing
Potter fan fic sites
Eg www.fictionalley.org (Jenkins, 179)
3
Create a specific site for
writing
Provide mentors for new
writers
Set up peer-review
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Provide critique
5
Introduce writers to multiple
drafting
1
2
‘forty mentors … welcome each new
participant individually’. (Jenkins, 179)
‘At The Sugar Quill, www.sugarquill.net,
every posted story undergoes beta
reading’. (Jenkins, 179)
‘constructive criticism and technical
editing’ is provided. (Jenkins, 179)
‘New writers often go through multiple
drafts and multiple beta readers before
their stories are ready for posting’.
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(Jenkins, 180)

23. 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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24. case study 2: comms, spaces & emotion
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25. 25

26. 26

27. 27

28. problems and approaches in case study 2
1. Information management
Better, more powerful and social, platforms
2. Managing voice, register and genre on digital platforms
Focus on a post-digital Ciceronian rhetoric
3. Socialising processes in relational spaces
Create 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.
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29. https://wiki.mozilla.org/Learning/WebLiteracyStandard
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30. ‘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, selfpresentation, 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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31. ‘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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32. 32

33. regulation of legal education
1. Space & absence is integral to the regulation of education
2. Regulation easily erodes into technification of regulation
3. Shared space is an approach that can improve regulation
and the quality of legal education
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34. Legal Education & Training Review
(LETR)
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35. remit
Address the following issues:
1.
2.
3.
4.
5.
6.
7.
What are the skills/knowledge/experience currently required by the
legal services sector?
What skills/knowledge/experience will be required by the legal
services sector in 2020?
What kind of legal education and training (LET) system(s) will deliver
the regulatory objectives of the Legal Services Act 2007?
What kind of LET system(s) will promote flexibility, social mobility
and diversity?
What will be required to ensure the responsiveness of the LET system
to emerging needs?
What scope is there to move towards sector-wide outcomes/activitybased regulation?
What need is there (if any) for extension of regulation to currently
non-regulated groups?
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36. remit
1.
2.
3.
4.
5.
6.
7.
What are the skills/knowledge/experience currently required by the
legal services sector?
What skills/knowledge/experience will be required by the legal
services sector in 2020?
What kind of legal education and training (LET) system(s) will deliver
the regulatory objectives of the Legal Services Act 2007?
What kind of LET system(s) will promote flexibility, social mobility
and diversity?
What will be required to ensure the responsiveness of the LET
system to emerging needs?
What scope is there to move towards sector-wide outcomes/activitybased regulation?
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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37. modalities of control
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).
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38. Norms
Feedback
Behavioural modification
Example
Hierarchical
Legal Rules
Monitoring
Powers/Dutie
s
Legal
Sanctions
Classic
Contractual
Agency Model Rule-making
&
Enforcement
Competition
Price /
Quality
Ratio
Outcomes of
Competition
Striving to
Perform
Better
Markets
Community
Social
Norms
Social
Observation
Social
Villages,
Sanctions, eg Clubs
Ostracization
Professional
Ordering
Design
Fixed with
Architecture
Lack of
Response
Physical
Inhibition
Software
Code
Parking
Bollards
Variant
Promotion
Systems
Modalities of control (Murray & Scott 2002)
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39. 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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40. 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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41. LETR recommendation
Recommendation 25 A 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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42. 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, 161–78
Hamilton-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.uk
Marton, 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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43. Email:
Web:
paul.maharg@anu.edu.au
paulmaharg.com
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