Walsh, T --- "Putting justice back into legal education" [2008] LegEdDig 43; (2008) 16(3) Legal Education Digest 49

• Putting justice back into legal education

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Putting justice back into legal education

T Walsh

17 Legal Educ Rev 1 & 2, 2008, pp 119–142

The influence of legal education on the attitudes, values and career aspirations of law students is well-documented. Since lawyers are amongst the most powerful players in our society, it is incumbent upon legal academics to ensure that we are graduating students committed to using their degrees to enhance social justice and equality, and who are dedicated to upholding the rule of law.

Clearly, ‘[e]verything we do as law teachers suggests something about justice’. It is of concern, therefore, that accounts of legal education are increasingly reporting it to be adversarial, competitive, ‘mystified’, and seemingly objective and value-neutral. Commentators note that students are taught to view the law as ‘something separate and apart from the rest of the goings-on in society’. They are trained in the art of ‘studied detachment’, forced to ‘leave their sense of compassion at the door’ and have their ‘curiosity and genuine intellectual interest’ inhibited.

Empirical research supports these observations. Numerous studies have found that law students’ commitment to social justice principles and public interest practice diminishes over the course of their studies. This paper examines the possible causes of and solutions to this. It reports on the results of an empirical study undertaken at the University of Queensland, which investigated the extent to which law students demonstrated a commitment to social justice principles and public interest practice.

‘Social justice’ is, of course, a contested term. For the purpose of the arguments advanced here, the term ‘social justice’ will be used to denote the ideal of affording all persons fair treatment with a view to achieving truly equitable outcomes, regardless of situation or status.

The literature advances four key reasons for including social justice elements in legal education. First, it is argued that true ‘professionalism’ necessarily embodies notions of service, duty and altruism.

Second, and further to this, it is asserted that social justice principles are inherent in those professional values that lawyers in particular are expected to uphold. Lawyers have been charged with the roles of ‘officer of the court’, ‘upholder of the rule of law’ and ‘guardians of the legal system’ on the basis that if access to justice is denied to some, the whole system is implicated, and suffers as a result.

Third, and perhaps more relevant in modern times, it is said that, having crossed over into the realm of ‘business’, lawyers (particularly those working in medium to large sized firms) should endeavour to become good ‘corporate citizens’.

Fourth, it is recognised that a corporatised or positivist approach to the study of law does not cater to the needs of all students. It has been demonstrated in numerous studies that many students enter into law school with a desire to use the law as an instrument for social change.

If our courses do not cater to the interests of these students, clearly we are failing to meet their needs.

Still others are struggling to find meaning in their studies and are unable to see themselves as legal professionals. Instilling a sense of social justice commitment can provide them with the nourishment that they need to find satisfaction in their studies and the law as a profession: as Maranville has said, ‘[p]assion provides motivation for learning and provides a foundation for a satisfying life in the law’.

Further, it is well-established that a large proportion of law students, perhaps as many as 50 per cent, will not enter into private practice, let alone a large corporate law firm, upon graduation.

Thus, exposure to social justice principles and instilling dedication to public interest practice should be a key feature of legal education for a number of reasons, related to both students’ future role as lawyers (as professionals, administers of justice and corporate citizens), and their needs as individuals.

Law schools have been identified as ‘the single most notable part of the socialisation process that distinguishes lawyers from other participants in the political process’, and law schools have been specifically blamed for the decline in altruistic concerns that occurs in law students throughout the course of their studies.

It has also been argued that as long as the traditional law subjects of torts, contract, property, equity, trusts, corporate law and evidence dominate the curriculum, the expense will be a deep appreciation for ethical standards and professional responsibility. As Jane Harris Aiken has said: ‘We communicate a great deal about the (un)importance of justice when we do not focus on it explicitly’.

It has been widely opined that the law school is the most appropriate institution to instil budding lawyers with professional values such as the public service ideal, and that in order for law students to develop into true professionals, and to legitimately enjoy the independence and other privileges of membership of the legal profession, they should be reminded that the main purpose of the justice system is to ensure fairness and justice.

Further, it has been noted that holistic university education requires that law teachers take a step back from the profession and ‘technical’ training, and provide their students with a broad-based perspective of the law as a discipline that is integrated with so many others, including history, philosophy and the social sciences.

In recognition of this, a survey of law students enrolled at the University of Queensland was undertaken in mid-2006. The study was aimed at determining the extent to which students valued public interest and social justice matters, and gauging whether they were satisfied with the extent to which such subjects were dealt with in the law course.

All enrolled students, of which there are approximately 1000, were invited to participate in the survey, which was available in an online format for them to complete. The survey consisted of 25 discrete questions, some yielding quantitative data and others yielding qualitative data. There was also some space at the end of the survey for students to make any further comments relevant to the study, if desired.

The first four questions asked students to indicate certain demographic information about themselves, including their age range, gender, the stage they were at in their degree, and whether they identified as a member of a minority group, specifically whether they were Indigenous, a person with a disability, a person speaking English as a second language, an international student, a person from a low socio-economic background, or gay, lesbian, intersex or transgender.

The remaining questions asked students to indicate and/or explain such things as what their motivations were/are for attending law school; the extent to which they had/have a desire to use the law to achieve social justice outcomes; the extent to which they valued discussions on social justice and political matters during their law classes; their definition of and views on professionalism; whether they intended to pursue an alternative legal career; and the extent to which they valued and/or participated in the school’s clinical legal education programs or pro bono opportunities.

A total of 254 responses were received. The majority of respondents were female (63 per cent), an over-representation compared with the general law school gender breakdown of around 50/50. The vast majority (81 per cent) were aged between 17 and 22 years; 17 per cent were aged between 23 and 29 years, and the remaining two per cent were aged 30 or more. This generally reflects overall student demographics; most students enrolled in the degree have come into their legal studies straight from high school. There was a relatively even spread across the respondents in terms of the stage of their degree: 23 per cent were in the first year of their legal studies; 22 per cent were in their second year; 17 per cent were in their third year; 13 per cent were in their fourth year; and 26 per cent indicated they had been studying law for five years or more.

Students were asked to indicate both their main initial motivation for entering law school, and their main reason for remaining at law school. Respondents were required to select only one option from a list, which included educational or personal achievement; family or social expectations; a desire to help people; a desire to bring about social justice or work in the public interest; a desire to earn a high income; intellectual challenge; prestige; not sure or nothing in particular; and ‘other’.

A desire to engage in social justice or public interest practice was the main reason respondents gave for entering law school (23.9 per cent), closely followed by a desire for intellectual challenge (23.5 per cent). A further 21 per cent of respondents stated that they entered law school because they achieved sufficiently high grades at the end of high school. However, when asked why they continued on with their legal studies, 33 per cent of respondents cited personal achievement, or a desire for closure, as the reason; a further 17 per cent said their desire to enter into social justice or public interest practice motivated them to continue their law studies, and 14 per cent said the intellectual challenge kept them going. Thus, the top three responses to both questions were educational or personal achievement, intellectual challenge, and a desire to engage in social justice or public interest practice, however the relative importance of these was different for each.

A desire to help people in general was the key motivator for entering law school for eight per cent of respondents, while 11 per cent of respondents said this motivated them to continue their studies.

Having said this, students demonstrated a very high degree of optimism regarding the capacity of the law to bring about positive social change; 95 per cent indicated that they believed it did have the power to do this. Notably, those respondents in their fifth year of law school or more were least likely to agree with this statement.

Female students were twice as likely to cite a desire to enter into social justice or public interest practice as their initial motivator for entering law school, while male students were twice as likely to cite the potential for a high income to be their initial motivator. Notably, when asked what their current motivation for remaining in law school was, relatively equal proportions of male and female respondents selected ‘a desire to enter into social justice/public interest practice’. Thus it seems that much of the change in motivation over time may be occurring amongst female students, rather than male students.

Overall, respondents who identified as a member of a minority group were no more likely to be motivated by a desire to enter into public interest practice than others.

Contrary to the results of previous studies, most respondents in this study did not explicitly state that their desire to use the law to achieve social justice outcomes, or to engage in public interest practice, had diminished over the course of their legal studies. Only 18 per cent of respondents agreed that such a desire had decreased since beginning their law degree; 39 per cent said it had remained the same, and 39 per cent said it had increased over the course of their studies. Only four per cent reported never having any such desire in the first place.

When those students who indicated that their desire to use the law to achieve social justice outcomes, or engage in public interest practice, had increased over the course of their studies were asked which aspects of their degree contributed to this, individual lecturers or tutors were most often stated to be of influence (39 per cent), followed by other students (23 per cent). These two options ranked higher than other influences such as the content of core (nine per cent) or elective subjects (18 per cent), involvement in professional associations (19 per cent) or certain forms of assessment (seven per cent). This is an interesting result, as it demonstrates the power of interpersonal relationships in the development of students’ social justice orientation, both student/student relationships and teacher/ student relationships.

The students were also asked to indicate how important they considered discussions on politics, the social context of the law, and justice issues to be to their legal studies; they were required to select from a list of four possible answers, ranging from ‘fundamental’ to ‘completely irrelevant’. The vast majority of respondents felt that such concerns were either fundamental to their studies (65 per cent) or interesting but not essential (30 per cent). Only six per cent of respondents stated that they felt such concerns to be a bit of a waste of time or completely irrelevant.

Students were also asked a series of questions on the subject of professionalism, including what their definition of professionalism was. Notions of social responsibility ranked fairly low, and were only mentioned by 11 respondents (five per cent).

Around one quarter of respondents indicated that helping people was their primary professional goal; 13 per cent stating that they wanted to help disadvantaged people, and 11 per cent stating that they wanted to help people in general.

All this would seem to suggest that students’ notions of professionalism are largely divorced from a desire to use the law to achieve social justice goals. However, when students were specifically asked ‘Do you think working to bring about positive social change is part of being a legal “professional”?’, 69 per cent responded in the affirmative.

Students were also asked whether they supported the introduction of compulsory clinical legal education or pro bono work. Most did not support mandatoriness (only 35 per cent agreed that clinical legal education should be compulsory, and 24 per cent agreed that pro bono work should be compulsory). However, the vast majority of students indicated that if these offerings were available to them, they would be interested in participating (93 per cent for clinical legal education and 85 per cent for pro bono work).

The empirical research reported on here demonstrates that the majority of students support the incorporation of social justice and public interest practice principles into their legal studies. Indeed, many students agree that the quality of their education will suffer without it. Certain sub-groups (particularly female students and members of some minority groups) were more enthusiastic about this than others, however this study did demonstrate a general sense of support and interest across the entire respondent base. While it is possible that students with an existing passion for social justice and public interest principles self-selected into the study, the level of interest in these principles that was uncovered exceeded expectations; and the study was not without its critics.

Thus, in order to meet the needs of these students (if for no other reason), legal academics and law schools should actively seek ways of enhancing the social justice content of legal education.

Clinical legal education programs are often cited as the answer to the question of how a social justice orientation can be encouraged amongst law students. Their effectiveness in doing this stem from a number of different sources. First, clinical legal education exposes students to disadvantaged people; students come to learn of the multiple layers of disadvantage faced by these people, including the non-legal ones. Second, clinical legal education introduces students to role model public interest lawyers. Students enjoy the supportive environment and sense of solidarity that exists within the community legal sector, and report that it presents a stark contrast to the competitive, adversarial environment within the law school. Thirdly, clinical legal education provides students with proof that they are able to use their legal knowledge to promote social justice, and to assist those in need.

However, clinical legal education programs are not without their drawbacks, for example, they are extremely resource intensive. As a result, clinical legal education is generally only offered to a small number of students in Australian law schools.

Also, it must be acknowledged that contact with disadvantaged clients may have the opposite of the desired effect. The student may be required to deal with difficult or involuntary clients, and may become impatient. Some students may be overwhelmed by the extent of disadvantage and injustice they are faced with, and may be unable to cope emotionally with this. As a result, students may decide (or may be advised) never to work in the community sector again.

Involvement of law students in pro bono work is extremely underdeveloped as an alternative to, let alone a supplement of, clinical legal education in Australia. While many US law schools have made pro bono work compulsory for their law students, most of their Australian counterparts have not even canvassed pro bono as a voluntary option.

The law school at the University of Western Sydney has recently established ‘Pro Bono Students Australia’ as a first step towards introducing institutionalised student pro bono work in Australian law schools. This program links student volunteers with community organisations who require quasi- legal assistance, in an attempt to foster a public service orientation in law students, and thereby encourage lifelong pro bono service.

Of course, the main problem with pro bono is time. The majority of contemporary Australian students are in paid employment, and are struggling to balance their work, studies and personal life. Although research has shown that engaging in work while studying does not lead to significant drops in performance, adding another demand on their time might seem too onerous to students, and may engender resentment rather than a satisfying sense of service.

Regardless, the development of pro bono clubs throughout Australian law schools, even if only as a voluntary option, will go some way towards enhancing a social justice orientation in and providing public interest practice opportunities to law students.

Realistically, not all students may have the opportunity or desire to undertake clinical legal education, and not all students will have the time for pro bono work, so it may be necessary to consider ways of exposing students to social justice and public interest values in the classroom. There are a number of ways in which this can be done; the most obvious being through the kinds of subjects offered to students. By making human rights or public interest law subjects compulsory, all students would be exposed to the content, but further to this, a message would be sent by the school that such subjects are considered to be as important as their corporate-commercial counterparts.

However, as noted above, the way in which something is taught may be considered as important as the content of the course itself. Thus, if the way in which traditional law subjects are taught is altered, the same result might be capable of achievement. For example, it has been argued that the way in which appellate cases are taught should be altered so that the law’s human face is not completely lost; cases should not be divorced from their social context.

Role play or ‘simulations’ are tools that could be used more extensively in Australian law schools, to give students something of a sense of what real practice is like. In so doing, students could receive practical skills training in counselling, empathy, negotiation and oral advocacy to supplement their theoretical knowledge.

In addition to this, assessment tasks may be altered to ensure students are taking a reflective approach to their studies. The use of reflective journals, for example, encourages students to explore their personal reactions to and struggles with the material, and indeed rewards them for taking a critical approach to their learning. Enlisting students to write law reform papers or submissions to government are other ways of ensuring that students reflect critically on the law, and ways in which it can be improved.

As teachers, we need to recognise, as the students in this study did, that grappling with justice issues is not a waste of time, and is not a distraction, but rather is fundamental to the study of law, which after all, has justice as its main goal.

Finally, and perhaps most importantly, legal academics need to set an example. If we do not promote social justice principles, and do not value, much less engage, in public interest practice, our students cannot be expected to do so.