Teaching Legal Ethics & Developing Professional Judgment

by Paul Maharg on 07/05/2013

This is a session at ANU College of Law that I’m attending & liveblogging — see here for full details.  It was organised by Tony Foley & colleagues, and the keynote speaker is Judith Wegner from North Carolina, who in legal educational circles needs no introduction,  talking on ‘Developing Professional Judgment in Future Lawyers — A US Perspective’.

She began by setting the context — the ABA, she said, is about to institute learning outcomes based on competences, and she welcomed the work on threshold learning outcomes done in AU by Sally Kift & Mark Israel.   She offered two lenses: theory, based on the Carnegie Report, then observations from her own and others’ practice.

Starting with the Carnegie Report, she mentioned the Report’s emphases on ‘commonplaces’ of professional work; teaching and ‘signature pedagogy’; learners, learning sciences and assessment, and metaphoric apprenticeships.  She also related this to legal ethics & professional judgment.  She put this into the context of the multi-professions studies that Carnegie carried out under Lee Shulman– engineering, clergy, law, medicine, nursing, the PhD and more.  Quite an important point, I’ve always thought — we tend to think, in legal education, of Carnegie as a stand-alone, without this context, which is a corrective to insular thinking on the subject.

The legal education study was carried out on 16 law schools.  So what were the commonalities of work across the professions in the Carnegie studies?  She dwelt on:

  1. fundamental knowledge and skills: academic
  2. capacity to engage in complex practice
  3. judgments under conditions of undertainty
  4. learning from experience
  5. create and participate in responsible/effective professional community
  6. able and willing to engage in public service

Professional education should arguably relate to what professionals must do in practice.  On the issue of teaching and signature pedagogies, she made the point about teaching making a difference, though often invisible.  Interesting point.  I think in Transforming I make the point that it’s when a pedagogy starts to become invisible that it becomes truly powerful and a signature pedagogy.  She described the signature pedagogy as:

  1. having characteristic approaches: visible, accountable, widespread
  2. where theory & practice align
  3. it has a surface, deep and tacit structure

It has potency — the frisson of energy/excitement/anxiety, and in the presence of expert and peers.  It had strengths but also a shadow side (what’s missing from the pedagogy) — she gave the example from the US of the case-dialogue method.  I like the idea of the shadow side, as I’ve said elsewhere.  It introduces the idea of the hegemonic power of the signature pedagogy, and Judith gave examples of that, particularly the use of appellate cases in first year law in the US, the use of language, critique, analysis, question-forming, etc.  Judith described Shulman as being very impressed with the cultural and intellectual power of the case method, particularly in critical thinking.  Judith described critical thinking in Bloomian terms (taxonomy and cognitive skills):

  1. knowledge and comprehension (legal literacy)
  2. analysis (from simple to complex)
  3. application (from simple to complex)
  4. synthesis (largely of cases)
  5. evaluation (internal critique, little about justice)
  6. Instructional techniques are key in the case method — where the teacher models scaffolds, coaches fades, and the student articulates, reflect,s explores — thus making thinking visible.

I think it’s interesting to put Shulman’s reception of the power of the case report pedagogy side by side with the critique of its linguistic power and method in Beth Mertz’s study of linguistic anthropology, The Language of Law School.   I’ve often meant to ask Beth if she were influenced in that book by Realist tradition — the same tradition that Dewey contributed to, albeit very briefly, at Columbia.

Judith went on to discuss learners, learning & assessment.  She began with the processes by which novices become experts, and in general:

  1. developing contextualised, structured knowledge
  2. involves tacit learning through observation, imitation, experience with many scenarios (not the same as ‘thinking like a student in a classroom’), quoting Bransford, Brown, Cocking, How People Learn especially chapter 2
  3. how this develops in stages with practice over time — novice, beginner, competent, proficient, expert, ie Dreyfus & Dreyfus, Mind over Machine.
  4. Assessment drives learning (formative & summative).

On metaphoric apprenticeships, she described how new metaphors may aid teaching and learning

  1. three apprenticeships and professional formation
  2. cognitive knowledge
  3. skill/practice
  4. identity/values/purpose
  5. professional formation is more than the sum of its parts

This is, she said, a different way of thinking about curriculum which makes the invisible visible and creates a fresh approach to legal education.  Judith ended by applying everything she had been talking about to the AU context.  Her own trajectory…? Very ambitious, but nothing less than we’d expect:

  1. Ethics & professionalism
  2. professional expertise
  3. leadership development
  4. professional judgment
  5. professional identity
  6. professional competencies
  7. assessment, of individual courses, and programmatic and institutional assessment

Her strategy was more theory, with experiment in practice.  She quoted the work of Gary Klein Sources of Power, the work on professional identity by my ANU colleagues, Foley, Hall, Holmes, Tang, Rowe and others, Lillian Corbin’s work (UNE), Neil Hamilton’s work, Judith’s own, eg Wicked Problems.  In the latter she raised the lessons we can learn from graduate students re socialisation, and new ideas re development at ’emerging adulthood’ stages.  Some ideas re possible responses –

  1. advising (and necessary tools?)
  2. helping students take responsibility for emerging strengths/weakness
  3. changing assessment over courses of study?

She drew attention to the work of Shultz & Zedeck:

  1. intellectual & congnitive
  2. analysisy and reasoning, creativity/innovation, problem solving, practical judgement
  3. research and information gather ing, researching the law, fact finding, questioning & interviewing
  4. communications, influencing and advocating, writing, speaking, listening,
  5. planning and organising
  6. conflict resolution
  7. client business relations – entrepreneurship
  8. working with others
  9. character.

Finally she quoted the LSSSE findings from 2010; and the 2010 NALP Learning Study.  She wanted continuing legal education as laboratory, and oral histories as tool for teaching ethics & professional identity.  Judith ran a seminar called ‘Becoming a Professional’.  She co-taught using video linkage; sections in Cincinnati, UNC; each section had a partner instructor who was lawyer/judge; each section also had retreat/involvement with practitioners.  The focus was to introduce students to changes in the profession (through literature, eyes of professionals), introduce students to ‘soft slkills’; assessment was multimodal.

Morphing BAP with A2J Author on the CALI site (going pretty fast here…).  Legal aid organisations & courts were used, and students created guided interviews to collect data from end-users and develop needed documents.

Great presentation.  I especially liked the idea of legal education as being the laboratory of the law school.  Such a good response to Langdell’s original concept of the law library as being the laboratory of the law school.

The next session, after coffee, was a roundtable chaired by Kath Hall.  Some fascinating discussion about virtue ethics, more on the signature pedagogy, introducing values discussion with students, regulation issues, and much else.  An absorbing couple of sessions, so valuable to listen and share ideas; and I learned a lot.  Many thanks to Tony & colleagues for organising it.

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