Wellness in Law Forum: Final thoughts

by Paul Maharg on 07/02/2015

I arrived in Australia a day before the Forum began, with a cold + jetlag, so apologies for more typos, inexplicables, etc than usual.  In the wrap-up Stephen Tang thanked the committee and others; and we thanked Stephen and his colleagues — great job!  Looking ahead, it was announced that the College of Law, Sydney would host next year’s Forum.  My summaries give the merest sense of what it is to be here at this one; don’t miss next year’s…

For me, it exemplified all that’s best about the Australian legal education community.  Present were academics, the judiciary, students, practitioners, regulators, and other professionals.  There was theory, lots of practical examples of change, sharing of good practices, helpful advice, a democratic plenitude, and at almost every turn an engagement with a problem that, really, has yet to be even properly acknowledged in the UK.  Sure, quite a number of projects were en train, there was a lack of proper data in others, or lack of analysis (a simple association between two variables isn’t real evidence of a convincing relationship); but this isn’t unusual in legal ed conferences.  Others were outstanding in their approach, thought-provoking in their findings. Above all, the collaboration and the commitment of everyone at times was humbling.

There are of course those who dismiss the research, or most of it; who mark up the results to the effects of neoliberal regimes in universities, in government, in law practices, in society, or to the marketization of HE, or the commodification of HE and destruction of public legal service; or the privatization of services and commitments once considered public goods.  And that what is proposed as remedies in Forums such as this is either unnecessary because there is no real problem (sampling issues, poor methodology, dodgy labelling), or else the problem is so structurally deep and untreatable in society that the remedies are just simply sticking plasters over a weeping wound.  I can understand such pessimism, but it has to be unsatisfactory, and for three reasons.

First, let’s say that the research is variable in quality (though I’ve yet to see an equivalent sub-domain of legal education attempt a similar quantification of a phenomenon, on such a scale, anywhere).  Legal education is no different from empirical and sociolegal law in that regard; and the Nuffield Inquiry (2006) and more recently the LETR (2013) pointed out how we need to improve empirical research methods and infrastructure, and our organization of the empirical research that we do carry out, over time.  For as with any new sub-domain, eg in medical education, the primary research gathers, then there are meta-reviews and systematic reviews that identify the best studies for future researchers, and that feeds into the research process, and so it goes.  Or at least that’s how it goes in medical education.  We’re not nearly as organized in legal education, but we need to be; and when we are, the issues will be much more clarified for us all.  So let’s not give in to pessimism on this score, but work to make it better any way we can, both the quality of research and the organisation of the research.  That’s our job as researchers, after all.

Second, the best research has produced evidence that there are serious issues at stake — issues that require further research, to be sure, with better methodologies, larger samples, more finely-grained statistical analyses — and that require fairly urgent attention.  This is not moral panic: it’s simply good educational practice.  It’s having care and concern for Others, who are also ourselves, now, and who were ourselves when we were young students, many years ago.  And academics should not turn away from acknowledging that we design the disciplinary domain in which our students study and live; and begin to think about improving its design.

Third, the application of theories of neoliberalism direct to the issue of wellbeing doesn’t shed light on either the topic of wellbeing or add anything much to the body of theory.  The social and economic forces that drive wellbeing or mental distress in law firms are both quite similar to yet quite different from those that can drive students in our law programmes into depression.  We need to research such difference, focus on the granulated reality, the phenomenology of what we experience, before we reach for grand theory to explain away that experience.  Often our use of theory in this way actually blinds us to the experience under analysis, or alters our perspective on its importance.

Here’s an example of what I mean.  In the diversity and social mobility research on admissions requirements and the profile of entrants to elite HE institutions it was assumed that Bourdieu’s theory of cultural capital (itself formed from Marxist and other bodies of theory, along with adjacent concepts such as habitus and field) accounted for the profiles.  In other words, the differences between social class of origin and social class of destination (a place, an institution, whatever) can be explained in terms of an applicant’s subtle and interwoven embodied, objectified or institutionalized knowledge, as displayed to the gatekeepers.  Thus Bourdieu.  Zimdars, Sullivan & Heath (2011), which we used in LETR, didn’t accept this assumption of the direct application of high theory to the problem of social mobility at elite universities.  Analysing admissions data at Oxford, they asked the following granulated questions:

  1. How do Oxford applicants vary in their cultural participation and cultural knowledge, according to parents’ education, social class, gender and ethnicity?

  2. Does cultural capital predict acceptance to Oxford?

  3. If so, does its effect remain once we control for examination performance?

  4. Is cultural capital more important for admission to the arts and humanities faculties than to the sciences?

  5. To what extent does cultural capital mediate the effect of social class, parents’ education, private schooling, ethnicity and gender? (653)

They proved that Bourdieu’s theory only partly explains the phenomenon, and on three counts:

We only partly support Bourdieu’s postulation of cultural capital as the main differentiator between fractions of the middle class. Measures of cultural capital do not account for the gender gap in admission and only explain a small part of the disadvantage faced by South-Asian applicants.

I strongly suspect that when we come to analyse the developing body of research on wellbeing, we will only understand the phenomenon if we stop reaching for high theory and produce similar accurate, finely-grained and convincing analyses.  Another, larger piece of work in the field of HE admissions is the outstanding (and beautifully written) study by Bowen & Bok, The Shape of the River – a book that in its analysis of the effects of affirmative action in the US shows so clearly the strong bonds between education and justice — links that are there, too, in the field of wellbeing.

The type of work that Zimdars et al have done, on prior research, on datasets (such as Oxford Admissions Study dataset) is exactly the sort of work that we need to do on the phenomenon of student wellbeing to understand its aetiology, its condition, and its ongoing effects in our universities and our professions.  And we need to publicise it and on the basis of it work towards wellbeing, and with those bodies that are making significant differences to people’s lives, such as the Tristan Jepson Memorial Foundation, whose work was so movingly presented by Marie Jepson at the Forum.

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