Cassandra Sharp and Karina Murray, It’s All Academic

It’s All Academic: Reflections on Teaching Method in the Development of Intelligent Lawyers.

Cassandra Sharp* and Karina Murray**

When students commence legal education, they have not yet adopted all the norms that underpin the legal system and they have very little experience of the law. Students enter a world that is strangely familiar, yet at the same time, quite different to that which they have experienced before. The culture of law school invites them to encounter new ways of speaking, reading and thinking, while being immersed in a ‘heady, seductive brew of personal and social influences’.[1] The boundaries between the domains of law and popular society are ever shifting and permeable,[2] and by the very process of entering law school, students begin participating in a constant dislocation and slippage across discursive boundaries.[3]  It is now generally accepted that the discourses of law school will have a role in shaping student understanding of what is important and not important to being a lawyer,[4] and in this way legal education provides the means through which students stand ‘in a different place to view the same world’.[5] By reflecting on what it is they value, and ‘about how matters of value are shared and disputed in the world we inhabit with others,’[6] students in law school are often pushed to evaluate, defend and sometimes reconstruct their understanding in relation to the way they view the world of law. So, rather than undergoing passive socialisation, we argue that the students’ transformation in law school is an active interaction and response to various discursive practices and processes. Legal education then has enormous potential to harness this transformation and encourage students to construct a legal identity that will not only direct their activities in professional situations but will also affect the way they will construe the more general social reality.[7]

This article posits that law school is the foreground for the students’ active engagement in the construction of their legal identity – identity that reflects self-awareness and emotional intelligence. In the first section, we argue that law teachers are in a unique place to influence the transformation having undertaken the journey themselves as law students past, and we consider teaching method as one aspect of the student experience that is critical to transformation. In the second section, the article seeks to explore the extent to which law school has a role to play in student construction of ‘emotional intelligence’ and suggests that law schools should make use of current curriculum mapping and redesign opportunities, afforded by the Australian Threshold Learning Outcomes (TLOs), to harness this unique transformative process.

I. Law Teachers Were Once Law Students

 

The difference between an education in law, from the teacher’s perspective, and an education in law, from the student’s perspective, is worked out by way of a “hidden curriculum”. Many of the lasting lessons taught are implicit.[8]

It is important for us to recognise, acknowledge and reflect upon the fact that, as law graduates ourselves (although sometimes long forgotten) every law school teacher has also undergone this transformative effect of law school and have been ‘imprinted’ by the experience.

Doubtless this discovery and moulding of self-image – of what it means to be a lawyer, think like a lawyer – and importantly, how our own law teachers behaved has left a lasting impact upon our teaching styles. It is still the situation in many universities that lecturers and tutors are ‘not required to have any qualifications in teaching, and very few teachers have any familiarity with the literature on learning and teaching.’[9] In the absence of teaching experience or on-the-job mentoring, many new tutors fall back onto the familiar – being the way they experienced legal education. In fact, how often have you heard the expression in university staffrooms ‘when I was at law school…’? One of the consequences of this is that ‘legal education has been an astonishingly stable cultural practice.’[10] Without delving into education scholarship and/or a study in pedagogy, many tutors simply model their teaching style on their own experience and only adapt their teaching style through trial and error.

While it is acknowledged that the law school experience is different for everyone, many current academics, including the authors of this article, went to law school in a period where the ‘Socratic method’ was the teaching vehicle du jour, and in fact, this is still the model espoused in many law schools around the world.[11] Yet we argue that the Socratic method, as the primary vehicle for educating future lawyers, is potentially an inhibitor to student transformation.

A. What Would Socrates Think?

 

If one wishes to develop a hearty and fit strain of polar bears, one does not rear them in a jungle with the lions.[12]

The theory behind the Socratic method is one of collaborative learning; where the teacher and student engage in a dialogue from which they both come away enriched. However, the reality is often something quite different, and we question its utility as an effective mechanism for attending to student ethical and emotional development.

‘[W]hat most teachers mean by the Socratic method is that they ask students questions.’[13] This model of teaching proceeds ‘upon the belief that our students have carefully read [the] materials and thought about them prior to class’.[14] When students arrive in class the teacher skilfully develops a student’s knowledge and understanding of the law through thoughtful questioning techniques – so that the student participates and shapes their own learning experience which is instructive as well as self-fulfilling. This is in stark contrast with the practical experience of many, including the authors of this article, whose transformative memories of this method of learning relate more to the crippling fear of feeling un- or under-prepared when called upon by the teacher or, worse still, being one of the members in the class reduced to tears by a teacher’s belittling or humiliating ‘learning technique’.

As one individual recounts, ‘under the Socratic method, students are badgered, and in some cases completely humiliated by the professor, in an attempt to make them think like lawyers.’[15] This negative incarnation of the Socratic method can be viewed in its extreme as an ‘invasion of privacy’[16] where:

Students are quickly made to recognize that they may not sit passively and digest the presentations of their teacher. Rather they are forced to open up the defences which surround knowledge or the lack of knowledge and stand revealed before classmates and teacher.[17]

The evolving and embryonic stage of law student identity will doubtless contribute to the lack of confidence or self-assuredness students actually require to participate effectively in this learning mode:

Because they will have had little experience in being the person they want to be, they are highly vulnerable to any pressures which make them think that they might be wrong. In short, they will be fairly willing to surrender their self-images or at least to obscure them if they are too heavily pressed.[18]

This calls to mind the, now somewhat dated, experiment by Stanley Milgram, where individuals were prepared to administer ‘shocks’ to unknown others up to extreme, even lethal, levels as long as they were told to do so by someone in authority.[19] Similarly, this learning method seems to rely more on the coercive, rather than the participatory – with the consequences being that students learn to deal with their education under this level of stress or develop techniques to avoid the stress (through such means as a lack of eye contact with the tutor or by not coming to class). Neither option would seem conducive to quality learning. In fact, ‘people need to feel that they are good at what they do, or at least can become good at it’[20]. The erosion of confidence to engage with the subject material, particularly early in their degree, can negatively impact upon a student’s sense of themselves as ‘lawyer’. With the proliferation of current literature on depression within both law school and the legal profession[21] it would seem that learning under such stress and negativity is something that legal educators should rethink.

Of course, we do not deny that there is a solid theoretical basis for the Socratic method, which has been used to engage constructive and rewarding learning for both student and teacher,[22] however, in order to be successful, we argue that a number of factors need to align. For example, an effective utilisation of the Socratic method requires the academic to exercise a significant level of skill, experience and preparation so that an optimum learning environment for this model can flourish.[23] In a tertiary environment where it is estimated that ‘more than half the teaching conducted in Australian universities is done by casuals’[24] this may be an unrealistic expectation. Although sessional tutors in the law field are often lawyers ‘[m]any have not taught at universities and are astonished to find they receive little support, may be expected to develop course material and can face tutorials of up to 30 students’[25] for a set hourly rate of pay, often considerably less than they might receive outside. It is difficult, at best, to expect these tutors to invest the time (even where they may have the skills and experience) to adequately prepare a thoughtful and effective Socratic lesson plan.

Even with a more moderate or more skilful approach to the Socratic method, another consideration is recognising we now live in an era of tertiary education where students are increasingly consumer focussed. With many students finding tertiary studies a financial strain, and working one or more jobs to support themselves, academics are finding that students attend class without having completed the required preparation.[26] ‘The assumption [underlying the Socratic method] of mutual preparation … illustrates that the questions asked – either those of the teacher or those of the students – make sense only within a given context.’[27] Delivering a class on a false assumption of preparation therefore has the potential to create student confusion, disorientation and disheartenment. For this reason, we argue that legal educators should be mentored and supported to engage with education scholarship, and to look to ‘new’ or other ways of teaching that encourage a student’s sense of control and autonomy.

Positively, there has been considerable focus upon developing, designing and delivering quality legal education in Australia in recent times.[28] Of course, the definition of quality relies heavily upon one’s articulation of the aims or goals of legal education. There have been many and varying opinions of the role of law schools – ranging from the more traditional teaching of ‘lawyering’ as a vehicle to a professional qualification…

The goal of a law school is to educate and train lawyers to be effective, competent professionals in their work[29]

…through to a more liberal view of the generalist legal education:

The university exists as a locus for the study of law not for the sake of the legal profession, but because law is a component of the intellectual inheritance of civilization.[30]

For a long time now, there has been a clear ‘shift from apprenticeship to university-based legal education’.[31] This view is perhaps growing in popularity as more than a third of law graduates do not go on to practice law.[32] The current literature suggests that there is desire for legal education to cover all bases: ‘combine academic excellence with an outstanding preparation for practice.’[33] In any case, it is clear that, for some time now in Australian law schools:

[L]aw teachers are increasingly accepting that teaching is concerned with making it possible for students to learn subject matter, and is a complex process of facilitating changes in student understanding.[34]

So how can we best attend to this? The next section of the article seeks to provoke further thinking and development of pedagogy by suggesting one ‘other’ teaching method for maximising both the transformation of students and the Socratic method.

II. Regrouping Legal Education in Light of the TLOs

Having established the fluid state in which law students find themselves, it is easy to see how law school educators are provided with a valuable opportunity (or some might argue burdened with enormous responsibility) to consider the impact upon the student’s transformation. With the introduction of the Tertiary Education Quality and Standards Agency (‘TEQSA’)[35], the focus has been on delivering demonstrable results in tertiary education measured against Threshold Standards. Historically, since 1992 Australian law graduates have had to complete a degree that satisfies the Academic Requirements[36] known as the ‘Priestley 11’.[37] These include 11 core subjects; one of which is a compulsory study in material termed ‘Ethics and Professional Responsibility’.[38] This traditional ‘Priestly 11’ model could be categorised as a more doctrinal or positivist approach to legal education.[39]

The Learning and Teaching Academic Standards Project in Law[40] developed a set of Threshold Learning Outcomes (‘TLOs’) for all LLB degrees. This project resulted in a ‘shift from a predominantly knowledge-based curriculum to one that seeks to balance the acquisition of knowledge, skills and values.’[41] The TLOs ‘represent what a Bachelor of Laws graduate is expected “to know, understand and be able to do as a result of learning”.’[42]

The TLOs for law are: (i) knowledge; (ii) ethics and professional responsibility; (iii) thinking skills; (iv) research skills; (v) communication and collaboration; and (vi) self management.[43] The response to this redesign has seen ‘most … law schools in Australia [commit to] … the intentional integration and incremental sequencing of knowledge, skills and attitudes (including professionalism) for progressive development and acquisition over the course of the degree program.’[44]

These TLOs have provided for law a serendipitous opportunity to consider (re)designing the law school curriculums, and the methods for teaching them, that might best support the students’ development and positively impact transformation. It is the contention of this article that some TLOs can be effectively linked – particularly through the development of ‘emotional intelligence’ – in a way that would not only support the student in their transformative journey through law school, but provide crucial assistance as they construct ‘lawyer’ identity.

A. Towards a More ‘Intelligent’ Graduate

The practice of law can be toxic. Much has been written about the dismal lives lawyers face and the inordinate amount of stress lawyers have to deal with on a day to day basis. Much has also been written about the effect of the adversary system on lawyers. Lawyers thus as a result tend to be adversarial, pessimistic and risk adverse. Pessimism is well-documented as a major risk factor for unhappiness and depression. Such emotions not only affect how we think but also the values we hold and the attitudes we choose. Becoming aware of the inevitable emotional influences helps us to understand ourselves and others. The best way to become aware of such emotions is through training in emotional intelligence.[45]

Calls for the development of emotional intelligence into the law curriculum are not new, and very few would challenge the notion that encouraging emotional (and ethical) awareness within law students, as attendant with their developing legal identity, is a worthwhile endeavour of legal education. Indeed, it has been argued that the public and educators alike share a concern about ‘the graduation of cold, seemingly uncaring practitioners who appear to operate in a void of humanistic values and out of self-interest and opportunism’.[46] But what exactly is ‘emotional intelligence’ and how can it be effectively incorporated into a learning outcome? Emotional intelligence is a personal competency that is generally viewed as including ‘self-awareness and impulse control, persistence, zeal and motivation, empathy and social deftness’[47], and in this sense, emotional awareness manifests in ‘social awareness, self-awareness, self-management, relationship management, empathy and teamwork.’[48] Conversely, it has been argued that a ‘deficiency in intrapersonal [or emotional] intelligence takes its toll, leading to disproportionately high levels of stress, substance abuse, and depression among lawyers.’[49] Certainly it is well established in education theory focussed on primary and secondary education that ‘[s]chools will be most successful in their educational mission when they integrate efforts to promote children’s academic, social and emotional learning.’[50] It is therefore argued that the development of emotional intelligence in law students should be seen as an extremely crucial aspect to their legal education and that law schools need to be more strategic in addressing it.

 

In the past, when teaching ‘legal ethics’, law schools or clinical programs have seemed to only focus on aspects of professional responsibility as expressed within the criteria of various codes and regulations.[51] That is, apart from teaching legal ethics as part of professional conduct requirements, legal educative practices have rarely prioritised the ethical or emotional development of its law students, nor have they fostered the interaction of students with ‘wider questions of human moral reasoning and conduct’.[52] In Australia back in 1997, ethics academic Ysaiah Ross[53] suggested that ‘[p]erhaps by using emotional intelligence lawyers can start having healthier and happier lives.’[54] Yet, with the focus in recent years upon the issue of lawyers and mental health, surprisingly little focus has been placed upon integrating emotional intelligence into the law curriculum. Although, in the last few years a small number of Australian academics have explored the benefits of integrating emotional intelligence into the first year of the LLB[55] or in clinical legal education[56] (with a focus on improving student well-being), we argue that it is now prudent to specifically utilise the new TLOs as one strategic way of explicitly embedding it in the curriculum.

 

Indeed, there is a growing body of research on using the principles of emotional intelligence to enhance legal education in the United States of America.[57] The literature has reported on the theory and trialling of integrating emotional intelligence within the curriculum, predominantly with a focus upon increasing ‘lawyering skills’.[58]

Legal educators should affirmatively and deliberately endeavour to cultivate emotional intelligence, to develop the intra- and interpersonal skills essential to good lawyering. We need to do this for at least two compelling reasons: to increase lawyer satisfaction and to better address clients’ needs and concerns.[59]

This could be achieved in Australia with the TLOs which, although having ‘been drafted to avoid overlap’,[60] allow for convenient intersection among them using the basic tenets of emotional intelligence. An obvious link between them can be found in TLO 6: Self Management. The demonstrated desirables for this TLO include the ability to:

  • learn and work independently, and
  • reflect on and assess their own capabilities and performance, and make use of feedback as appropriate, to support personal and professional development.[61]

This self-management or self-reflection is found at the crux of emotional intelligence and identity construction. ‘An ability to engage in reflective practice is an important skill for lawyers … because it can provide the means for lawyers to cope with the day-to-day moral, ethical and personal dilemmas that arise in the practice of law.’[62] The principles behind TLO 5: Communication and Collaboration, include an ability to ‘communicate in ways that are effective, appropriate and persuasive’[63] and emotional intelligence is an important aspect of this. Development of empathy and social deftness as well as competency in relationship management will assist in effective, appropriate communication that is crucial in an ethically developed lawyer’s skill set.

The authors contend that the growth of emotional intelligence could also be effectively developed in tandem with TLO 2: Ethics and Professional Responsibility. While this learning outcome is coached in terms of the ‘professional responsibilities of lawyers’ the ability to identify ‘one’s own emotions, self-regulation of those emotions, and the use of this knowledge to successfully manage relationships’[64], is the key to developing competency in emotional intelligence. These capacities are all required for appropriate ‘exercise of professional judgment’ in relation to ethical dilemmas. ‘[J]ust as good judgment is the most valuable thing a lawyer has to offer clients, good moral judgment is the heart of legal ethics.’[65] As Sharp has argued, a demarcation of ethical and professional practice for law students is not easy, and without the benefit of practical experience or study in legal ethics they are constructing professional identities from a position where what is “ethical” behaviour has not yet been evaluated, tested and delineated in the legal sphere.[66]  Quite simply, law students need the opportunity to reflect on and evaluate how they respond in various ethical situations – they need to be able to tap into their emotional intelligence… And we need to teach them how to access it.

Of course, it is important to recognise that a student upon entering law school, is ‘not entering a seminary or political organization. Although anticipating exposure to new ideas and views, he or she does not agree to take on any new system of values’.[67] A central aspect of university life is the access that students have to a multiplicity of views, and it is certainly not the role of the university lecturer to inculcate any one set of values in their students.[68] On this basis, it is of vital importance to make possible the enhancement of student capacity for self-determination, rather than seeking to ‘mould their personal or political views in any particular way’.[69] Requiring students to develop emotional intelligence is not about ensuring they implement the ‘right’ values or morals, but is instead an opportunity to provide a basis for effective and appropriate personal and professional decision-making, enabling them to develop and evaluate their values and attitudes in a self-reflective manner.

III. Conclusion

Implicit in understanding the transformative change occurring within law student development is the notion that legal education should take the ‘wholistic’ teaching of students very seriously. This article has sought to urge that the development of students’ emotional intelligence and self-awareness become important aspects to address in the curriculum. Recognition of law school as a developmental phase in a student’s journey necessarily requires a commitment from law schools to move away from the ‘sink or swim’ methods of legal education and recognise the delicacy of the transformative experience. In turn, this places enormous value on the imprint a law school, and academics, can make to students’ identities; by inculcating a culture that is supportive of students. It is our argument that a study of law should address the need of students to begin the process of thinking and responding, talking and imagining the practice of law and reflecting on the various decisions (ethical or otherwise) they will need to make. It is this process that will be a formative contribution to their development and deployment of emotional intelligence and ethical judgment. On this basis it would appear that there is a place for legal education to ignite and fuel the ethical imagination and emotional intelligence of future lawyers so that they will be prepared for all aspects of legal practice. Thus, we argue that a ‘paradigm shift in legal education’ is essential:

To hear teachers of [first] year classes speak with great glee about how they are busy “destroying the preconceptions of [first year] students. …This attitude of many law professors, coupled with a strong aversion to “spoon feeding”, is legitimated by the assumption that they are developing the student’s capacity for rigorous analysis and tough-mindedness.[70]

It is our hope that through a cohesive approach to curriculum design and, importantly, through an appropriate delivery of that curriculum that focuses on enhancing a student’s transformative process, we are able to facilitate a greater capacity for emotional intelligence. Enabling students to challenge themselves and each other in this way has substantial benefits. Our aim is to foster and encourage innovative pedagogic practices that will best empower students to explore and challenge the ideas, values and expectations that are important to them as part of their legal education and future careers. Attending to students’ emotional intelligence and self-determination, as argued above, will ‘maximise the learning and emotional adjustment’[71] of students and will ensure that legal education is not deleterious to their development.

 

* PhD (UOW), BA, LLB (Hons) Associate Professor, Faculty of Law, University of Wollongong.

** BA, LLB (Hons), Senior Lecturer, Faculty of Law, University of Wollongong.

[1] Andrew Goldsmith, ‘Warning: Law School Can Endanger Your Health!’ (1995) 21(2) Monash University Law Review 272, 278.

[2] Jessica M Silbey, ‘What We Do When We Do Law and Popular Culture’ (2002) 27 Law & Soc Inquiry 139, 166 [reviewing Richard Sherwin, When Law Goes Pop: the Vanishing Line Between Law and Popular Culture (University of Chicago Press, 2000)].

[3] Cassandra Sharp, ‘Changing the Channel: What to Do with the Critical Abilities of Law Students as Viewers?’ (2004) 13(2) Griffith Law Review 185; Cassandra Sharp, ‘The “Extreme Makeover” Effect of Law School: Students Being Transformed by Stories’ (2005) 12 Texas Wesleyan Law Review 233.

[4] Howard Lesnick, ‘Infinity in a Grain of Sand: The World of Law and Lawyering as Portrayed in the Clinical Teaching Implicit in the Law School Curriculum’ (1990) 37 UCLA Law Review 1157, 1159.

[5] James R Elkins, ‘Becoming a Lawyer: The Transformation of Self During Legal Education’ (1983) 66 Soundings 450, 451.

[6] James R Elkins, ‘Lawyer Ethics: A Pedagogical Mosaic’ (2000) 14 Notre Dame Journal of Law, Ethics & Public Policy 117, 127–9.

[7] Western and Anderson, ‘Education and Professional Socialisation’ (1968) 4 Australian and New Zealand Journal of Sociology 91, 97.

[8] James R Elkins, ‘Thinking Like A Lawyer: Second Thoughts’ (1996) 47 Mercer Law Review 511, 511 n 1.

[9] Mary Keyes and Richard Johnstone, ‘Changing Legal Education: Rhetoric, Reality, and Prospects for the Future’ (2004) 26 Sydney Law Review 537, 539. It is acknowledged that this situation is changing for tenured academics – but at most universities a significant proportion of teaching is conducted by sessional tutors.

[10] T D Rakoff and M Minow, ‘A Case for Another Case Method’ (2007) 60(2) Vanderbilt Law Review 597, 597, referring specifically to the American legal education system – but equally applicable to the Australian system.

[11] See, eg, Elkins, above n 9; Thomas D Eisele, ‘Bitter Knowledge: Socrates and Teaching By Disillusionment’ (1994) 45 Mercer Law Review 587.

[12] Watson, above n 16, 110.

[13] Elkins, above n 9, 524.

[14] Eisele, above n 12, 591 – as discussed later, this may be an increasingly incorrect assumption.

[15] Elkins, above n 9, 528.

[16] Andrew S Watson, ‘The Quest For Professional Competence: Psychological Aspects of Legal Education’ (1968) 37 University of Cincinnati Law Review 91, 121.

[17] Ibid.

[18] Ibid 97-8.

[19] See Stanley Milgram, Obedience to Authority (Harper & Row, 1974).

[20] Kennon M Sheldon and Lawrence S Krieger, ‘Understanding the Negative Effects of Legal Education on Law Students: A Longitudinal Test of Self-Determination Theory’ (2007) 33 Personality and Social Psychology Bulletin 883, 885.

[21] See, eg, Ian Hickie, Norm Kelk and Sharon Medlow, ‘Depression and the Law: Experiences of Australian Barristers and Solicitors’ (2011) 33 Sydney Law Review 771; P Vines and M Tani, ‘Law Students’ Attitudes To Education: Pointers To Depression In the Legal Academy and the Profession’ (2010) 18(2) Legal Education Digest 41; Ian Hickie, Norm Kelk and Sharon Medlow, ‘Distress and Depression Among Australian Law Students: Incidence, Attitudes and the Role of Universities’ (2010) 32 Sydney Law Review 113.

[22] See Eisele, above n 12.

[23] For a description on the level of preparation and reflection that guides a successful Socratic class, see Eisele, above n 12.

[24] Gary Newman, ‘When a Casual Affair Turns Sour’, The Age (Melbourne) 14 April 2012, 13 quoting statistics compiled by the National Tertiary Education Union (NTEU).

[25] Ibid.

[26] Possibly this is not just a recent phenomenon!

[27] Eisele, above n 12, 591.

[28] See, eg, Sally Kift et al (eds) Excellence and Innovation in Legal Education (LexisNexis, 2011); Penelope Watson and Con Papas ‘Mapping and Embedding Sustainable Graduate Capabilities in Law’ (2009) 2 Journal of Australasian Law Teachers Association 217; Sally Kift ‘21st Century Climate for Change: Curriculum Design for Quality Learning Engagement in Law’ (2008) 18(1) Legal Education Review 1; Keyes and Johnstone, above n 10; Nickolas John James, ‘The Good Law Teacher: The Propagation of Pedagogicalism in Australian Legal Education’ (2004) 27(1) UNSW Law Journal 147.

[29] Elkins, above n 11, 511 n 2.

[30] Ernest J Weinrib, ‘Can Law Survive Legal Education?’ (2007) 60 Vanderbilt Law Review 401, 403.

[31] M Coper, ‘Recent Developments in Australian Legal Education’ (2011) 19(3) Legal Education Digest 22, 22.

[32] See Council of Australian Law Deans, Studying Law in Australia – Legal Education in Australia (2010-2011) http://www.cald.asn.au/slia/Legal.htm.

[33] Kift, ‘21st Century Climate for Change’, above n 29, 13 quoting the Law Society of Scotland’s work in Liz Campbell, Neil Stevenson and Christine McLintock, ‘Vision 20/20’ (2007) June The Journal 26 http://www.journalonline.co.uk/Magazine/52-6/1004243.aspx.

[34] Richard Johnstone and Sumitra Vignaendra, Learning Outcomes and Curriculum Development In Law (Report, Australian Universities Teaching Committee, 2003) 286 (emphasis added).

[35] Replacing the Australian Universities Quality Agency (AUQA).

[36] In 1992 the Law Admissions Consultative Committee set out Uniform Admission Rules.

[37] See Law Admissions Consultative Committee, Uniform Admission Rules 2008 – Schedule 1 Prescribed Areas of Knowledge.

[38] Previously ‘Professional Conduct’.

[39] For an interesting discussion on the connotations of ‘positivist’, see John R Moss, ‘Part of the Problem or Part of the Solution? Legal Positivism and Legal Education’ (2008) 18 Legal Education Review 55.

[40] Initiated by the Australian Learning and Teaching Council.

[41] Coper, above n 32, 24.

[42] Sally Kift, Mark Israel and Rachael Field, Bachelor of Laws: Learning and Teaching Academic Standards Statement (Report, Australian Learning and Teaching Council, December 2010), quoting the Australian Qualifications Framework.

[43] Ibid 10.

[44] Kift, ‘21st Century Climate for Change’, above n 29, 13.

[45] Steve Mark, ‘Legal Education and the 21st Century Law Graduate’ (Speech delivered at the Continuing Legal Education Association of Australasia Conference, Sydney, 16 October 2008) 9 (citations omitted).

[46] G M Dickinson, ‘Moral Development Theory and Clinical Legal Education: The Development of Professional Identity’ (1984) 22 University of Western Ontario Law Review 183, 184.

[47] Daniel Goleman, Emotional Intelligence: Why It Can Matter More Than IQ (Bloomsbury Press, 1996) quoted in Stan Ross, ‘Emotional Intelligence’ (1997) 32(2) Australian Lawyer 5, 5.

[48] Richard Boyatzis, ‘Self-Directed Learning’ (2004) 21(2) Leadership Excellence 11, 11.

[49] Marjorie A Silver, ‘Love, Hate and Other Emotional Interference in the Lawyer/Client Relationship’ (1999) 6 Clinical Law Review 259, 281-82.

[50] Joseph E Zins et al (eds), Building Academic Success on Social and Emotional Learning (Teachers College, 2004) 1.

[51] For example at the University of Wollongong, the subject ‘Lawyers and Australian Society’ seeks to raise legal ethics issues in relation to a lawyer’s compliance with the criteria and regulations set out in various state and Commonwealth legislation, including, for example, the Legal Profession Act 2004 (NSW). Although this subject does pose to students some theoretical and philosophical questions about ethical issues, this is not its priority or main objective. In terms of other institutions, a recent AUTC Report states that ‘while all but two law schools include ethics in the LLB curriculum, there is no clear pattern’: Johnstone and Vignaendra, above n 35, 122. The report also found that there is no consensus as to the level of ethics to be taught – that is, whether it should cover professional responsibility or something broader: at 121.

[52] Dickinson, above n 47, 184. Castles also argues that unless legal ethics is taught with a coherent philosophical basis, students are unlikely to understand legal ethics as anything more than a gloss on the substantive law: Margaret Castles, ‘Challenges to the Academy: Reflections on the Teaching of Legal Ethics in Australia’ (2001) 12(1 & 2) Legal Education Review 82.

[53] Then writing as Stan Ross.

[54] Ross, above n 48, 5.

[55] Judith McNamara, Rachael Field and Catherine Brown, ‘Learning to Reflect in the First Year of Legal Education: the Key to Surviving Legal Education and Legal Practice’ (Article presented at First Year in Higher Education Conference, Townsville, Queensland, Australia, 2009).

[56] Colin James, ‘Lawyer Dissatisfaction, Emotional Intelligence and Clinical Legal Education’ (2008) 18 Legal Education Review 123; Colin James, ‘Law Student Wellbeing: Benefits of Promoting Psychological Literacy and Self-Awareness Using Mindfulness, Strengths Theory and Emotional Intelligence’ (2011) 21 Legal Education Review 217.

[57] See, eg, Cindy L James, ‘Exploring Changes in the Emotional Intelligence of Law Students’ (2018) 28(1) Legal Education Review, Article 3.

[58] See, eg, Marjorie A Silver, ‘Emotional Intelligence and Legal Education’ (1999) 5 Psychology, Public Policy and Law 1173; Paul Cain, ‘A First Step Toward Introducing Emotional Intelligence into the Law School Curriculum” The “Emotional Intelligence and the Clinic Student” Class’ [2003-04] 14(1) Legal Education Review 1.

[59] Silver, above n 58, 1202-03.

[60] Richard Johnstone, ‘Whole-Of-Curriculum Design in Law’ in Kift et al (eds), above n 29, 14.

[61] Kift, Israel and Field, above n 43, 10.

[62] McNamara, Field and Brown, above n 56, 3.

[63] Kift, Israel and Field, above n 43, 10.

[64] Shari A Robertson, ‘Got EQ? Increasing Cultural and Clinical Competence Through Emotional Intelligence’ (2007) 29 Communication Disorders Quarterly 14, 15.

[65] David Luban and Michael Millemann, ‘Good Judgment: Ethics Teaching in Dark Times’ (1995) 9 Georgetown Journal of Legal Ethics 31, 31.

[66] Cassandra Sharp, ‘Scarlet Letter or Chastity Belt? What Legal Dramas of the Twenty-first Century are “Telling” Law Students About a Career in Law’ (2002) 5(1) Legal Ethics 90.

[67] D Webb, ‘Ethics as a Compulsory Element of Qualifying Degrees: Some Modest Expectations’ (2001) 4(2) Legal Ethics 109, 111.

[68] Ibid.

[69] Ibid.

[70] Watson, above n 16, 109.

[71] Sheldon and Krieger, above n 23, 894. In their 3 year study of two American law schools Sheldon and Krieger focussed on the depressive effects of law school and looked to Self-Determination Theory to see if it could address some of the problems. Their findings suggested that law schools should focus on enhancing their students’ feelings of autonomy: 894.