Legal Education Crisis? Workshop: Panel 3

by Paul Maharg on 05/03/2017

Day two, and first up, John Bliss, ‘Becoming lawyers: mapping professional identity formation in the US and China’.  John gave an absorbing account of the reasons why students become certain lawyers, using identity maps – circles, where placing of roles and what the roles were etc, were crucial to understanding identity. Eg relations, particularly familial relations, are important reasons for becoming certain types of lawyer.  Confucian view of roles and identity — in the Chinese identity maps all roles are within the circle, and none overlapping.  US roles were on the periphery, overlapping, with commentary. This bears out the existing literature on identity: broadly, Confucian societies tend to see selves more relational, from the outside in.  Professional role distancing varies by national context.  This variation is best explained thought the lens of cultural analysis.  There are implications for theories of professionalism — functionalist, conflict/market control, neo-institutional.  These theories needed to be amended or inflected to be more micro-oriented to the individual within the relational context (if I’ve understood him correctly on this point). Very interesting work.

Next, Sheldon Zedeck and Marjorie Schultz, ‘Lawyer effectiveness before, during and after law school’, summarising their excellent work on effectiveness.  Their tests predicted well who would be effected, but there was an inverse relation to LSAT, ie the higher the LSAT score, the less effective as laywer.  Outlined the interview process, and construction of job analysis questionnaire to determine levels of behaviour effectiveness.  Their sample was from Boalt Hall, UC: students, faculty, alumni, representatives of types of firms and practices, judges & clients.  Over 2,000 participants.  Results were 26 factors of effectiveness.  Not to all lawyers, but a sub-set of lawyers.  They generated over 700 examples, with different levels of effectiveness, with excellent to poor examples for each factor.  Categories of factors included intellectual and cognitive, research and information fathering, communications, planning & organising, conflict resolution, client & business relationships (entrepreneurship), working with others, character.  Their tests predicted 23 of the 26 effectiveness factors much more effectively than LSAT or GPA.  LSAT predicted only 7 or 8.  Also, their test didn’t suffer from the racial bias of the LSAT.  Their study has had a significant impact on legal education debates and discourse.  Their work has been used by law schools for formative work, and business schools too.  U of Nebraska has developed an app, and the law school has evaluated which factors are covered in a variety of events across the 26 factors — called ‘Build your character’ app.  Others are attempting to use the 26 factors to develop teaching approaches.

Next, Riaz Tejani on ‘Market creep: ‘Product’ talk in legal education’.  Beth summarised this paper for Riaz.   Metaphors do a lot of work: they’re tools and tropes to understand ideas, and this is true of markets.  Eg traders not just entering a market but actually making a market.  He cited Smith’s concept of market, the role of strong institutions in developing and extending the concept, beyond actor-to-actor exchanges.  He used anthropological and ethnographic approaches to understand how, eg, gift economies and market economies met and enmeshed.  Cited Polanyi on the bipolarities of free marketeers and market control; Sarat & Felstiner, etc, education of the moral self and ethical self.  He suggests legal academy is becoming increasingly captured, ie speaking like a law professor means now, speaking like an economist.  He found product talk in legal education, eg in brand talk, marketing talk, professional journalists interventions.  He talked to law students, and observed the view (self-view?) of them as consumers.  Eg production of law students for the consumption of the professional market.  The description of the educational ‘product’ is not uncommon in law schools, and he concludes that law schools are not unique in being susceptible to this, but are now part of the network of commodity and commodity fetishism.  But unlike furniture, ie real things, legal education is not a fungible.  Should legal education be a form of human capital or human labour?  Polanyi predicted commodities all the way down, and that’s a warning for us.  Fascinating paper.

Victor Quintanilla and Dorainne Jodi-Ann Levy next, on ‘Developing interventions to promote ethical -social development and diversity in legal education’.  The challenges they tackled were traditional first-year curriculum fostering cynicism about the legal profession and eroding self-esteem, and 1L students having little-to-no opportunities to cooperate in groups to achieve common goals.  Their goal: develop ethics and values, professionalism and passion.  They adapted ‘frontward design’, ie a theory about he gap between expert and novice thinking, where the bottlenecks are systems thinking, empathy and affect.  The intervention was divided into three stages with 187 students — Inspiration (learning about A2J, speak with community members, pair with community partners.  Next Ideation stage — develop five strategies and perform in depth interviews with community partners.  Third, Implementation — present solutions to class and community partners.  Students were also paired with outstanding upper school students, who were coaches.  Very good results in feedback from students for this A2J type of project.  They did pre- and post studies — no significant decline of ethical or social & perspective taking.  Jody-Anne focused on a different project.  Racial and ethnic minority disparities have been identified at all stages in the educational pipeline.  Addressing this is vital to ensure fairness, justice and effectiveness of institutions.  Social psychological factors shaping the pipeline include feeling one doesn’t belong.  Belonging includes a sense of having positive relationships with others, fitting in.  Belonging in academic institutions is uncertain for racial minorities for a variety of reasons, eg potential target intervention, the uncertainty creates further uncertainty.  So the intervention: 1L students learned that doubts about belonging in college are common at first and short-lived, etc, learn to cope with transition, etc.  Intervention very successful both in college and beyond.  The authors mapped their data onto the LSSSE data.  Current and future directions — examining the concept of psychological belonging in law school.  And inter alia, develop an intervention to improve Bar Exam performance.

Finally, Catherine Albiston, Rick Abel and Scott Cummings on ‘In it for good: preliminary findings from a study of California law school graduates’ public interest (PI) careers’.  Basic inquiry: dimension of theoretical interest – do interventions effectively help stop public interest drift.  They looked at what people brought to school, what they got out of it.  They surveyed retrospective cohorts (15,000 students over six schools?).  Results: where do grads go?  Over time in their careers, PI jobs increase.  What about PI ‘stickiness’ over first job and current job?  Elite schools came out well (possibly because of student resources).  What percentage of students who do PI?  Lots of data coming at me too fast here.  Catherine presented on mentorship — again, lots of data coming too fast; but it was important for PI lawyers to have mentors in faculty, not just for finding jobs but also as role models for students so that they could see themselves as PI practitioners.

No fourth panel summary.  I’m on it, slides for my talk, ‘The simulated client initiative: a portrait of the outsider as teacher’ are at the Slides tab above and on Slideshare.

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