The DSM-5: hyperbole, hope or hypothesis?

The furore preceding the release of the new edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) is in contrast to the incremental changes to several diagnostic categories, which are derived from new research since its predecessor’s birth in 1990. While many of these changes are indeed controversial, they do reflect the intrinsic ambiguity of the extant literature. Additionally, this may be a mirror of the frustration of the field’s limited progress, especially given the false hopes at the dawn of the “decade of the brain”. In the absence of a coherent pathophysiology, the DSM remains no more than a set of consensus based operationalized adjectives, albeit with some degree of reliability. It does not cleave nature at its joints, nor does it aim to, but neither does alternate systems. The largest problem with the DSM system is how it’s used; sometimes too loosely by clinicians, and too rigidly by regulators, insurers, lawyers and at times researchers, who afford it reference and deference disproportionate to its overt acknowledged limitations.

‘Yes, no, maybe, can you repeat the question?’ : Is thinking like a lawyer different to thinking like a teacher?

Presentation at APLEC 2013. 
Kristoffer Greaves is researching how lawyers who teach lawyers’ skills in PLT engage in scholarly activities regarding their teaching work. This qualitative research involves cross-disciplinary exchanges between law, legal education, education theory and practice, sociology of law, and cultural theory. Data collected for the research includes 30+ hours semi-structured interviews with 35 PLT practitioners working with different PLT providers around Australia.
One question asked during the interviews - Is thinking like a lawyer different to thinking like a teacher? - elicited reflective and diverse responses and insights about how PLT practitioners reconcile ‘thinking like a lawyer’ with their teaching and mentoring work.
This presentation discusses the relevance and significance of these insights in the context of scholarship of teaching in PLT, and practical legal training’s ‘big picture’ purpose to improve protection of clients, protection of the administration of justice, and the assurance of the quality of legal services.

Betwixt And between – Practical legal training practitioners – Scholarship of (which) practice?

I am interested in how Australian lawyers who teach lawyers’ skills at the post-graduate pre-admission stage (“PLT practitioners) engage in scholarly activities regarding their teaching practice. This presentation will relate Bourdieu’s ‘reflexive sociology of law’ to my doctoral research in which I focus on how PLT practitioners engage in scholarly activities around their teaching work. Drawing on Kemmis’s ‘practice table’, Bourdieu and Passeron’s theory of ‘reproduction’ in education and culture, and de Certeau’s theory of ‘practice in everyday life’, I will describe how PLT practitioners’ professional identity, as lawyers, constrains scholarship around teaching and mentoring practice.

The whole truth is both too much and not sufficient

Lawyers and fans of legal drama will recognise the phrase “the truth, the whole truth and nothing but the truth”. But relevance is also required. In a different context, students often mistakenly believe that quantity of truth will compensate for any deficiencies in quality and relevance.

The curricula of the various Australian jurisdictions, and the National Curriculum, encourage students to conduct research on the Internet. There is a wealth of good information on the Internet; there is also a lot of poor information. Students should learn to interrogate sources to discover if the author has expert knowledge in that area, and if the publisher or website has any quality assurance protocols.

Correctness and quantity of information does not compensate for deficiencies in quality and relevance. Useful scientific information has appropriate precision, accuracy and conciseness.

The Internet gives access to databases, to vast amounts of information, to primary and second-hand data, and to summaries and analyses of information. Nobel Laureate Linus Pauling often said that the use of computers is not a substitute for thinking, and the same is true of the Internet. Teachers will always be needed to guide students on the appropriate use of learning tools on the journey of discovery that we call education.

Gatecrashing the research paradigm : effective integration of online technologies in maximising research impact and engagement in legal education

Legal academics are not only teachers but also creators of knowledge. The role of an academic includes a responsibility to share this knowledge through engagement not just of their students, but also of the wider community. In addition, there is increasing emphasis on legal academics having to account for the so-called ‘impact’ of research. In selecting both the topic of their research and the mode of publication of their knowledge, legal academics act as gatekeepers. There is an increasing critique of the existing paradigm of research publication and its emphasis on the metrics of impact. This critique recognises the limitations of the commercial publication paradigm in the present context of open access and the vast array of citizen-mediated platforms for dissemination of legal knowledge and innovation. Susskind (Tomorrow’s Lawyers 2013) for example identifies expert crowd-sourced legal information as breaking down barriers to access to justice. Tracking their experience with publication of a paper on social media in legal education from the ALTA conference in 2012, the authors share an auto-ethnographic account of their insights into the potential for both impact and engagement of a diverse audience in their research. This highlights the ways in which various media can be used strategically to redefine the role of the gatekeeper.

Legal practice and ethics

This book aims to challenge students and lawyers to think critically about the way in which they will or do practise law. It is intended to be a guide on the various obligations and duties that a lawyer owes to the court, other lawyers, clients and the community in general. The hope is that students of law will see the ongoing value of maintaining the integrity of the legal profession and the value that lawyers provide to the community when we get things right.

O where are you going? O do you imagine? Reproduction and response : a reflexive sociology of scholarship of teaching and learning in practical legal training

My doctoral research studies Australian PLT practitioners’ engagement with scholarship of teaching and learning. I argue that many PLT practitioners are motivated to engage with scholarship of teaching and learning in their work. There are, however, individual and extra-individual impediments.
PLT practitioners are lawyers that teach in institutional practical legal training (“PLT”). Satisfactory completion of mandatory PLT is an eligibility requirement for admission to the Australian legal profession. The PLT requirement is additional to academic legal qualifications. PLT is undertaken at a post-graduate level with, or after, the academic law degree.
My study investigates PLT practitioners’ motivations and capabilities to engage with scholarship of teaching and learning (“SoTL”). I study organisational symbolic support for SoTL in PLT, and organisational allocation of resources to SoTL in PLT.
The study involves individual and extra-individual domains of PLT practitioners’ work. It considers how social structures (e.g. “the juridical”) are inscribed into individuals’ practices (“teaching”) and, conversely, whether practices influence social structures.
My research adopts qualitative methodologies. These involve inter-disciplinary exchanges between law, legal education, practice research, sociology of law, cultural theory, and theory and practice of teaching and learning. My theoretical framework draws on Pierre Bourdieu’s “reflexive sociology”, and Michel de Certeau’s “heterological science”.
I sourced data from documents, and semi-structured interviews with 36 Australian PLT practitioners. Documentary sources include statutory instruments, speeches, reports, practice directions, histories, and scholarly publications.
To analyse the data I adopted Kelle’s characterisation of “theoretical sensitivity”, drawing on “explicit” and “emergent” analysis strategies derived from “grounded theory”. The explicit strategies were based on my theoretical framework. The emergent strategy involved sensitivity to non-explicit concepts and theories that emerged from the data. Computer-aided qualitative data analysis software expedited these methods.
My findings to date question dominant legal structures’ readiness for change, the implications of this for teaching and learning in PLT, and in particular for PLT practitioners’ engagement with SoTL in PLT.
The espoused rationale for mandatory PLT (in statutes) is improvement for the protection of clients, the administration of justice, and to assure quality legal services. The tacit rationale is improved quality of legal education, and experiences, for lawyers-to-be. My thesis argues dominant structures in legal education impede the espoused and tacit objectives, and impede PLT practitioners’ engagement with scholarship of teaching and learning.

Conflict of interest in Victorian rural and regional legal practice

This research report was based on 163 survey responses and 29 interviews with Victorian rural and regional legal practitioners, as well as 8 human service organisation representatives. Peak law profession organisations including the Legal Services Board, Law Institute of Victoria, the Federation of Community Legal Centres and Victoria Legal Aid were also interviewed for the research. The principal objective of the research was to examine how conflict of interested is manifested in rural and regional settings and how effectively the current conflict of interest rules are applied within those settings. The report includes a number of recommendations for better responding to issues of conflict of interest within a rural and regional context.

PLT practitioners : soldiers For “vocationalism”, or double agents?

This presentation extends on some previous work around my PhD research.
I question ways in which social structures are inscribed into legal education practices, and conversely, whether practices can modify those structures. I argue PLT practitioners are not simply soldiers for a “vocationalist” strategy. Instead, I re-imagine PLT practitioners as “double agents” or “resistance fighters”, lamplighters in a still emergent professional trajectory. It is a trajectory catalysed by the 1970s introduction of institutional PLT; just a baby really, in the context of English common law.

In Bourdieu’s terms it is possible, by revisiting past struggles in Australian legal education, to conceptualise institutional PLT as the product of judicial, professional, and academic struggles to produce a vocationalised, non-academic, and critique-free sub-field within the juridical field. Those struggles succeeded, to some extent, in the extra-individual dimension of structures, regulation, and institutions, to collectively inculcate preferred dispositions within individuals about legal education and professional identity.

That account, however, ignores the potential for agency and alterity – the ways in which individuals might appropriate, in Certeau’s terms, the resources of the legal field to explore new professional trajectories. For some, these trajectories involve struggles to enrich, and add texture to, legal education. Drawing on interviews with PLT practitioners, I identify multi-vocal and multi-perspectival themes, including notions of social justice, equality, professional ethics, personal improvement, and indeed, interest in scholarship of teaching and learning.

It is in this sense I re-imagine PLT practitioners as “double agents”, operating betwixt and between dominant domains in law. In my view, PLT practitioners can participate in conceptualising and developing emergent approaches in legal education, and to theorise “practice” as lawyers and educators. Scholarship of teaching and learning has its part to play in this. It provides a means, as lawyers and as educators, to discover information, to reflect, critique, communicate, and conceptualise, insights about “practice” and practices.

R v Middendorp

This book brings together feminist academics, lawyers and activists to present an impressive collection of alternative judgments in a series of Australian legal cases.

The ‘great unwatched’ and the ‘lightly touched’: surveillance and stock market fraud

This chapter examines financial corporate crime, specifically the discontinuitiesand asymmetries in power that condition the differential uses of surveillance andsurveillance technologies in the governance of stock market fraud. It studiesstate and non-state control ('rule at a distance') (Rose and Miller 1992), theresistance practiced by the powerful economic actors who make up national andinternational equity trading markets, and the control efforts of regulatory agenciescharged with preventing, regulating and enforcing laws to counter stockmarket crime. At a theoretical level the study critiques the claims of surveillanceliteratures that technologically mediated surveillance, 'the new transparency',renders all social fields visible, and therefore knowable, manageable and governable(Haggerty and Ericson 2000), by documenting and interrogating how codeis used by powerful bankers, lawyers, accountants and stock brokers to construct'visibility covers' (Williams 2008: 1; Snider 2009; Braithwaite 2005).

Educating law students for rural and regional legal practice: embedding place consciousness in law curricula

As with other professions, the declining rates of recruitment and retention of lawyers in rural and regional Australia is of significant concern. Whilst the causes of this vary between communities, common depictions of the rural and regional lawyer’s role indicate that employment as a lawyer in such areas is characterised by unique personal and professional challenges. Nonetheless, employment as a rural and regional lawyer also offers practitioners rewarding opportunities and lifestyle benefits. Research from other disciplines indicates that the challenges inherent in rural and regional professional practice may be alleviated, and benefits more easily harnessed, via place conscious discipline-specific curriculum that sensitises tertiary students to, and prepares them for, the rural and regional career context.Largely oriented towards substantive content to satisfy external accrediting bodies, undergraduate legal education does not typically acknowledge the ‘places’in which graduates will practice as professionals. This article argues however that there is scope to incorporate place within legal education, and documents an innovative curriculum development project which embeds place consciousness to better prepare law students for employment in rural and regional legal practice.Drawing upon methods from other disciplines, the project team designed a curriculum package which aims to sensitise students to the rural and regional legal practice context, and equip them with the skills to overcome challenges and take advantage of the opportunities available in a rural or regional professional career.

How does the cookie crumble? legal costs under a uniform interpretation of the United Nations Convention on Contracts for the International Sale of Goods

A family owned Mexican company, Zapata Hermanos Sucesores, S.A. ("Zapata"), sold approximately US$950,000 worth of cookie tins over a period of four years to the Maurice Lenell Cooky Company ("Lenell"), an American company that produced baked goods. Lenell failed to pay Zapata for the cookie tins so Zapata sought legal advice and instituted legal proceedings against Lenell for breach of contract in the Federal District Court of Illinios. The cookie tin sale contracts were governed by the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Zapata succeeded in its Federal District Court claim and, as part of the Court's order, was awarded US$550,000 as foreseeable loss under Article 74 of the CISG, being the amount of legal fees incurred by Zapata in bringing proceedings against Lenell. On appeal to the Federal Appellate Court, however, the award of legal fees was overturned. The parties now find themselves contesting a leave application to appeal to the Supreme Court of the United States of America in a much anticipated debate over who should pay the lawyers.

Should payments for biodiversity conservation be based on action or results?

There is growing interest in the potential of payments for ecosystem services (PES) to encourage land managers to protect and enhance the environment. However, questions remain about how PES agreements should be designed. There is a division between schemes that structure payments by action or by results, with most biodiversity PES schemes, including European agri-environment schemes, paying by action; for example incentivising land managers to carry out actions believed to increase biodiversity. Payment by results is a common incentive structure in the private sector (e.g. labourers doing piece work or no-win no-fee lawyers) but rarer in PES. Using a theoretical modelling approach, we investigate the conditions under which each way of structuring payments may be more cost-effective in a biodiversity PES. Payment by action is favoured where there is a clear action that can be specified at an appropriate level and to which biodiversity is sensitive. We found that payment by results is favoured in degraded landscapes as incentives are created for managers to use their private knowledge and join the scheme only if they can produce the biodiversity services targeted by the scheme. Payment by results is also favoured where biodiversity is less sensitive to conservation action and when it is difficult for a central agency to determine an appropriate level of conservation action. This is because payment by results allows individual managers to optimise their level of action. The relative cost of monitoring action (compliance with an agreement to manage in a certain way) versus results (the presence of biodiversity) has a substantial effect on which payment structure is more efficient only when the central agency can accurately set an appropriate level of action. We illustrate these principles with examples based on agri-environment schemes. Synthesis and applications. Payment by results deserves more attention from those designing biodiversity PES (be they agri-environment schemes in agricultural landscapes or direct payment schemes in more intact ecosystems). This paper provides a formal framework to help policy makers identify the conditions under which payment by results or payment by action is most likely to yield cost-effective biodiversity conservation. © 2011 The Authors. Journal of Applied Ecology © 2011 British Ecological Society.

Is scholarship of teaching and learning in practical legal training a professional responsibility?

In Australia, applicants for admission to the legal profession must hold appropriate academic qualifications, and competently complete practical legal training (PLT). The author's research investigates institutional PLT practitioners' engagement with scholarship of teaching and learning (SoTL). The theoretical framework for the research draws on Bourdieu and Passeron's reflexive sociology of education and culture. This article focuses on responses to a paramount obligation proposition put to 34 PLT practitioners during semi-structured interviews: Might lawyers' paramount obligations to the court intersect with PLT practitioners' teaching and assessment practices? The proposition elicited responses and insights about field forces within the individual and organisational dimensions of teaching and learning in PLT. These include top-down/bottom-up pressures that impinge on PLT practitioners' engagement with SoTL.