Sea-change

Abstract

In this article Maharg analyses William Twining's inaugural lecture, ‘Pericles and the Plumber’, delivered at Queen's University, Belfast in 1967. He applies Twining's conclusions to two historical case studies in educational design, one at Columbia in the 1920s, and one at Strathclyde 1999–2010. He argues that, over 40 years later, the lecture is still relevant to many of our current concerns, and suggests that, building upon Twining's conclusions, we should view law schools as design schools, and construct a Pragmatist koine around such a concept.

Acknowledgements

I am indebted to Karen Barton and in particular to Alan Paterson for their comments on the GGSL case study.

Notes

Unless otherwise stated, all future page references to Twining's work refer to this lecture.

It was a topic he returned to several times, notably in Twining (1982). Many subsequent commentators have taken up the polarization, which was discussed contemporaneously by Dean Erwin Griswold of Harvard Law School (Griswold, 1967). Griswold notes that the centenary of Langdell's appointment to Harvard in 1870 was soon to be celebrated; and reminded his readers that the Law School of Boston University was founded by faculty who left Harvard in protest against Langdell's introduction of the case method. Griswold also quotes a popular text on lawyers by Martin Mayer in which the author observes that US law schools were “torn as to whether they [were] training physicists, engineers, or plumbers” (Mayer, 1967, p. 92).

There are at least two published versions of the lecture. The LQR article is an abbreviated version of the original lecture, which was also published as a pamphlet by Queen's University.

Read retrospectively this is ironic, given that the lecture outlines what will be key themes for Twining in the next 47 years.

The dramatic reference is sustained throughout the lecture, with figures who appear and recede – in addition to Pericles and the plumber there is the “cultured gentleman … the wise ruler … and the scholar researcher” (p. 398). The choice of Shakespeare's late plays is also apt, since like the landscapes of The Tempest and A Winter's Tale, the figures of Pericles and the plumber bear little resemblance to actual figures, as Twining readily acknowledges (p. 399). Nevertheless, as we shall see below, there are intriguing depths to the analogies that he draws.

The literature is extensive – for a summary, see Skura (2000). Fuchs (1997) argues that the play describes Elizabethan colonization of Ireland, which in many respects was the pattern for future seventeenth century colonization in America and elsewhere.

For information on the export of US legal education recently, see Brand (2009). For examples of critical analysis, see Pue (1995), arguing for a historical understanding of the complexities of the process in early Canadian legal education; Silver et al (2008) on the effects of cross-border practices on legal education; Sharafi (2007) on the role of Common Law legal education as a tool for cultural translation in the formation of colonial identities.

The locationary uncertainty is mirrored in the name of Prospero's daughter. ‘Miranda’ was unknown to Shakespeare's audience before they heard it, new-minted, in the play. It may not be too much to draw a comparison between the mesocosmic potential of place and names in the play, and Twining's own career and writing. He has been a “wandering jurist”, a “foreign correspondent” on the geographical periphery as well as in the centre of the Common Law (Twining, 1997, p. 2); and his intellectual interests similarly encompass areas that are still, in research terms, relatively peripheral (legal education) as well as more central concerns (jurisprudence, evidence, for instance).

Again, the playful literary reference, this time to Pirandello, is hard to miss. Six Characters in Search of an Author, like The Tempest, begins with the unexpected arrival of people, the ‘Characters’; but the play's director is much less in control of the subsequent drama than Prospero – not so much a magus as someone just trying to get on with his job, and who seems to have understood little of what has happened in the impromptu play within the play. Pirandello's play, which amongst other topics concerns the nature of dramatic invention and realism, is a fascinating parallel to Twining's lecture, which deals inter alia with the nature of educational invention and realism in legal education, and the necessity for us to develop and understand our own espoused methods and working theories.

As Dewey put it, “[i]ndividuals will always be the centre and consummation of experience, but what the individual actually is in his life experience depends upon the nature and movement of associated life” (LW, 14, p. 91).

Pericles' epitaphios is of course Thucydides' construction. For discussion of the relation of historian to politician, see Bosworth (2000).

Twining is analysing globalisation and its effects; but it is interesting to note that in the Epilogue's section on ‘general jurisprudence’, if we should replace those two words with ‘general education’ throughout the ten points, we have a picture of how educational theory might affect and be affected by, globalisation.

Dewey would have appreciated the possibility of debate between plumber and statesman on key political issues as critical to the health of a democracy, whether fifth-century BCE Athens or twentieth-century America.

Like Twining, Griswold similarly recognised that the surface anxiety betrayed a deeper malaise – he expressed it as the “exaltation of rationality over other values which are of great importance to our society” (Griswold, 1967, p. 300). Twining took a more nuanced view of the situation, as we shall see.

This section summarises chapter four of Maharg (2007), which gives a more detailed account of Dewey's and Thorndike's involvement with Columbia's law faculty in the 1920s.

Other seminar leaders included Roscoe Pound and W.W. Cook. According to Nathan Isaacs who attended the course, there was a strong similarity between Dewey's course and the text that Dewey published in 1910 entitled How We Think, in that the subject of the course was the professional thinking of lawyers, and how legal thinking was distinguished from ordinary patterns of understanding (Isaacs, 1923).

‘Logical Method and the Law’, (MW, 15, pp. 65–77). All references to Dewey's works are to the definitive Carbondale edition, where MW refers to Middle Works, LW refers to Later Works). As I point out (2007, p. 81), the textual evidence in Stone's unpublished papers at Columbia supports the view of Ann Sharpe, textual editor of the Carbondale edition, that the course and article were closely related (MW, 15, p. 438). For the complex textual history of Dewey's article, see MW, 15, pp. 437–439. A history of Dewey's extensive emendations to two later versions of the article is listed at MW, 15, pp. 450–455.

Located at Stone, 1923–24, Miscellaneous Papers, Box 66. The title sheet is headed “Readings in Legal Philosophy by John Dewey and Edwin W. Patterson (Prepared for the exclusive use of students in the course in Col. U. known as Logical and Ethical Problems of the Law: An Introduction to Legal Philosophy. Philosophy 130)”. It would appear that these papers remain unpublished in the Dewey oeuvre.

Twining quotes Brainerd Currie that these studies “constituted the most comprehensive and searching investigation of law school objectives and methods that has ever been undertaken” (p. 408; quoting Currie, 1951, pp. 333–334).

See Twining (1973), Duxbury (1995) and Schlegel (1995).

As Underhill Moore makes clear in an unpublished memo to Stone, the experiment was carefully planned, with Woods (“Prof. Thorndyke's [sic] right hand man”) conducting an analysis of the School's grading systems, attending class meetings for a whole semester, and reviewing students' prior knowledge of legal content (Moore, 1923).

And quite some distance from the social and philosophical views of Dewey, his wife Alice, Jane Addams and their circle. See Stone (1921).

For an overview of the complex issues as he saw them, see Thorndike (1921).

See for example Weinstein (2001), Henderson (2004), Edwards (2006). For an interesting alternative assessment, see Sternberg (2010), and the discussion of Sternberg's work at Inside Higher Education, available at: www.insidehighered.com/news/2010/09/28/sternberg.

Other initiatives at Columbia University were more innovative in learning design. It is interesting to note that, under President Butler's enlightened and innovative hand, Columbia entered the ‘home study’ or distance learning market. Butler saw the venture largely as the university's social service to adult education, though at its height in 1930 the venture made an annual profit of $349,000. The initiative lasted from 1921–1937. Its strategy was in part due to Butler's own caution in committing the university to an educational sector that was already well-served by private institutions, though there is an argument that had Columbia been more entrepreneurial, their pedagogic designs may have succeeded in the market in the long term (Hampel, 2010). The initiative contrasts strongly to the dot com boom a decade ago, when Columbia joined a number of other top-tier universities in a consortium called Fathom; and invested $20M in it, only to see the venture collapse several years later when the student sign-ups did not materialize (Kirp, 2003).

In their Preliminary Response to Scottish Solutions to the White Paper on Higher Education, the Association of University Teachers Scotland noted, with reference to research, that the White Paper “endorses increased research selectivity including the prospect of mergers, formal synergy agreements and increased collaboration”. See http://www.polfest.org/business/committees/historic/enterprise/papers-03/ecp03-04a.pdf.

As noted in GAELS (Glasgow Allied Electronically with Strathclyde) Original Project Proposal, http://gaels.lib.strath.ac.uk/project_info/proposal.html, which was another joint university initiative. Under SHEFC's Strategic Change Initiative the GAELS projects were supported by services such as the Centre for Digital Library Research – see Nicholson (2000).

SHEFC is now the Scottish Funding Council, http://www.sfc.ac.uk/. Synergy successfully bid for a grant of approximately £1.4M over three years, which was received in January 2000 (http://www.gla.ac.uk/services/synergy/shefcreports/).

See the Synergy website, at http://www.gla.ac.uk/services/synergy/developasynergycollaboration/#d.en.53854. Local links were strengthened in a variety of ways – for instance Joe Thomson, Regius Professor at Glasgow University School of Law, was appointed by Glasgow as the University's representative on the General Convocation of Strathclyde University. The Synergy site is also frank about the difficulties in setting up joint partnerships – for example, the problems of integrating cultures, of enabling staff throughout one department to liase fully with another, the infrastructural problems, and above all the problems of sustainability – many of which were encountered in the life of the GGSL.

For an account of another similar local initiative see Creanor & Littlejohn, 2008.

The two key senior law school staff involved in the setup of the GGSL were Professors Alan Paterson (Strathclyde) and Joe Thomson (Glasgow).

See http://www.gla.ac.uk/services/synergy/synergycollaborations/teaching/glasgowgraduateschooloflaw/. At its maximum, the Diploma cohort numbered 282, then just under 50% of the intake of students into the profession in Scotland. Working with students were five administrators, the equivalent of around three full-time academic staff (chosen by Paterson for their educational expertise), four visiting professors (more of whom below) and around 150 part-time tutor-practitioners, drawn from the profession in and around Glasgow and the central belt of Scotland. Throughout most of this period the author (who was with the GGSL at its founding until its dissolution in 2010) was co-Director of Professional Legal Courses, along with Leo Martin, a solicitor in Glasgow and founding partner of the firm of Giusti Martin.

The physical School was built on a floor of what later was renamed the Lord Hope Building on Strathclyde's John Anderson campus (after Strathclyde's Chancellor, Lord Hope). The floor had earlier been a Faculty of Engineering project centre. The design of the learning spaces and their furnishing is a case study in itself – there are many interesting parallels between the design process and the architecture of schools, for instance. See Maclure (1984) and Saint (1987).

The team, brought together by Paterson, included Mike Jones QC, John Sturrock QC, Scott Slorach and Charles Hennessy. Sturrock worked closely with the author on the design of an innovative programme on professional skills and values called the Foundation Course, and on mediation resources and classes. Slorach, now a Director in the College of Law, worked with the author and Karen Barton on multimedia, and on skills development, curriculum design and tutor training. Hennessy developed skills resources, webcasts with Patricia McKellar, and simulation resources, and later became a key author and designer on the Foundation Course.

Paterson also planned the recruitment of technologists to support the work of academic designers and practitioner-tutors. In time this became the Learning Technologies Development Unit, comprising two Web designers, two applications developers and a Unit Manager (Scott Walker), under the direction of the author. LTDU was responsible for almost all the ICT innovations at the GGSL. Paterson's plans for personnel recruitment took full advantage of the opportunity raised by the GGSL. The unique lamination of personnel expertise addressed many though not all of the law school personnel issues raised by Twining in his inaugural lecture (especially at p. 405). Paterson's role in this was crucial – as was Dean Stone's role in recruitment to Columbia Law School in the post-war years.

It should be pointed out that all these points, and many more, were addressed in the subsequent development of the Society's new curriculum, 2004–2010, which will start in the academic year 2011/12.

There was other development work being carried out at the same time. For example the design of the PCC started with a consultation project commissioned by the Law Society, followed by pilots at the GGSL and later the creation of accreditation documentation and the accreditation by the Law Society of PCC providers, including the GGSL.

These were often described in Internal Working Papers (IWPs – on file with the author), which often described the outlines of an innovation, the resources required, the lifecycle of the educational product or asset, and the use to be made of it by staff and students.

Its elements were constructed from a core of three, to seven. We may alter this in the future. We do not see this as problematic. No educational heuristic is timeless, being always a product of its time and place; and a heuristic that is closely allied to one of the fastest-changing learning environments ever, namely the Internet, is bound to alter swiftly. There are of course many other directions in which TL can be developed. Westbrook (2009) has indicated how TL, with a different definition, can be implemented in US legal education. On a practical level the concept can be taken into the field of economics – for example it is possible to use TL as the basis of student experimentation with the Coasian concept of transactional costs, and to introduce this into a syllabus where simulated transactions are the focus of student learning.

And therefore something that may have been of use to Columbia's Realist experiment. Dean Griswold observed in his address to Harvard Faculty (and following a remark by a colleague) that “staff might do better to teach less of the case method and more of the actual cases, the vast majority of which never see a court”; and he advocated the compilation of “‘cases’, based on office records and experience, so that our students could learn from carefully reproduced real materials what actually goes on in law offices” (Griswold, 1967, p. 303). What is missing from this and many similar statements is of course what was missing from the Columbia reforms, namely the detailed method by which students would learn from such resources – a method that Deweyan education provided.

While much of his epistemology was, as West puts it, a deliberate and creative evasion of European metaphysics, Dewey wished to emphasise aspects of what Heidegger was later to describe as the unrepeatable ‘thrown-ness’ (Geworfenheit) of existence, the always being in the midst of experience (Heidegger, 1980, p. 321).

The approach could, for instance, comfortably accommodate the Coasian notion of ‘transactional cost’ (Coase, 1991), particularly as defined by Williamson (1996, p. 379).

See Professional Education and Training Stage 1 (PEAT 1): Accreditation Guidelines for Providers, available at: http://www.lawscot.org.uk/media/39767/peat_1_guidelines_-_final.pdf, in particular Appendix B. I was appointed by the Society to draw up outcomes for professionalism, professional relationships and professional communications; and to draft brief curriculum guidelines that could be used by institutions seeking accreditation as PEAT 1 providers.

Cownie's study of law teachers explicitly focused not on professional education staff but on those engaged “in the traditional academic tasks of teaching, research and administration” (Cownie, 2004, p. 19).

A more detailed account of this will appear as chapter five in the prosopographic account of the GGSL in a forthcoming monograph provisionally entitled A Genealogy of Legal Education.

It is interesting to note that many of the GGSL innovations were enhanced by close co-operation with the Law Society of Scotland; and in turn results from the innovations were fed into the development of the Society's new professional regime. The New Hampshire exemptions could not have come about without even closer collaboration with the Supreme Court of New Hampshire.

There are other transactional projects with broadly similar ambitions – Westbrook (2009), for instance – but none with the same focus on technology-enhanced resource bases. Its institutional managers were ambitious for its success, much as Columbia's President Nicholas Butler was ambitious for his Law School at Columbia (a point made clear in the correspondence between Butler and Dean Stone).

Tanner notes how Dewey's Laboratory School was influenced by Dewey's experience with teachers in the 10 years prior to its opening. Dewey had numerous contacts with teachers in elementary and secondary schools in his earlier post as head of the philosophy department at Michigan University (Tanner, 1997, p. 14).

The basis for this is the substantial work carried out by the Centre for Postsecondary Research at Indiana University, of which Kuh was until recently Director – see Kuh (2009). The validated survey instrument was re-validated as the Law School Survey of Student Engagement (LSSSE) – see http://lssse.iub.edu/ and the survey instrument at http://lssse.iub.edu/pdf/2010/LSSSE_2010_Survey%20Instrument.pdf (note that at point 5, ‘Undergraduate research’, Kuh refers to the practice of involving undergraduates in academic research carried out by academic staff). Latest (2010) results for law schools are summarized at http://lssse.iub.edu/pdf/2010/2010_LSSSE_Annual_Survey_Results.pdf and make fascinating reading for all Common Law legal educators.

The cost-benefit relation in its simplest form was described by Hunter-Taylor (2001, p. 13), quoting Scott (1999): “overall, if people find that the cost to them continues to be outweighed by the benefit they are more likely to persevere with a change effort”.

See for example the Society's PEAT 1 Accreditation Guidelines documentation for providers, available at: http://www.lawscot.org.uk/members/legal-reform-and-policy/education-training-policy.

If one were to found a new GGSL today, it would be based less upon specific physical locale, and more upon a digital and distributed curriculum model. This is not a return to a distance-learning model of education (such as Columbia flirted with, briefly, in the 1930s, as we have seen); but a recognition that such a distributed model enables powerful lamination between academic and professional learning, and both integration with and challenges to the wider social context of legal learning.

Full fathom five thy father lies,

Of his bones are coral made:

Those are pearls that were his eyes,

Nothing of him that doth fade,

But doth suffer a sea-change

Into something rich, and strange:

Sea-nymphs hourly ring his knell

Hark now I hear them, ding-dong bell. (The Tempest, I.ii.460–68)

In this respect it is interesting to compare the lecture with a contemporary account of legal education, namely Dean Griswald's Hamlyn Lectures, Law and Lawyers in the United States, published three years earlier than Twining's inaugural lecture. In chapter three Griswold (1964) gives an historical account that parallels Twining's, in that both describe the importance of Story and Langdell as seminal figures in US legal education. Griswold's account, however, is broadly descriptive, while Twining's narrative is more critical, particularly in its final section, ‘Asheville 1965′, which describes sophisticated collaborations between academics and practitioners at a key conference, and thus gives us an indication of how some of the problems endemic to common law legal education may be better understood.

See Genn et al., 2006 and the Nuffield Inquiry website at http://www.nuffieldfoundation.org/nuffield-inquiry-empirical-legal-research-law-real-world; Hillyard (2007).

2008, 42(3).