Fines, B G --- "Fundamental principles and challenges of humanising legal education" [2009] LegEdDig 3; (2009) 17(1) Legal Education Digest 8

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Fundamental principles and challenges of humanising legal education

B Fines

47 Washburn L J, 2008, pp 313–326

To begin, scholars devoted to humanising legal education might consider the language we choose: what is it to ‘humanise’ something? According to the Oxford English Dictionary, ‘humanise’ means to ‘make more humane’ or ‘give a human character to’. At a minimum, humanising should remove that which is inhumane or dehumanising. Thus, a consistent theme of the scholarship of humanising is that law schools need to identify negative stressors in the law school environment, reduce or eliminate those as much as possible, and help the students to manage those that cannot be eliminated.

In 1991, the same year that Gerry Hess, with characteristic idealism and enthusiasm, was creating the Institute for Law School Teaching, I wrote my first published law review article called Fear and Loathing in the Law Schools. My thesis was a fairly straightforward one: many aspects of legal education created undue and unnecessary stress which interfered with learning. My faculty colleague who had been assigned to guide me through the tenure process read it and told me it was nicely written, but probably would not count as legal scholarship. He asked, ‘Couldn’t you write something I can agree with?’

What was it that was so foreign in that article? That we were creating threatening learning environments? That those environments undermined student learning; and that student learning could be enhanced by balancing demand and reward, and by placing more control in the hands of the students? I recall clearly another colleague’s reaction to my article at that time. This caring teacher, passionately committed to the law and justice, said I had it all wrong: ‘If they can’t take the heat, they should get out of the kitchen. The practice of law is brutal. We need to get them ready for it’. Getting them ready for it meant creating an equally brutal, demanding, and disorienting educational experience.

I do not mean to suggest that my senior colleagues were uncaring and anything less than fully committed to their teaching responsibilities. I do believe, however, that a subtle but significant headwind in reform of legal education is grounded in the professoriate’s sense of helplessness about their role as teachers.

We have lobbied our colleagues to consider the emotional climate of legal education and to address the debilitating effects of stress on our students, lest we continue to build a profession with significant problems of substance abuse, depression, and other stress related problems. We have given speeches at orientation and published pamphlets for students to instruct them in the self-management approaches that will help them to cope with the demands of law school. We have held numerous conferences and workshops, and written an impressive collection of scholarship on the subject of the learning environment.

Since 1991, law schools have made significant progress in creating more supportive environments for students. If politics of the AALS are any indication, we have had enormous success. There are now two AALS Sections — Academic Support, created in 1998, and Balance in Legal Education, created in 2006 — whose missions include attention to learning environments. Today, nearly every law school in the nation has some form of academic support beyond the Dean of Students. There is still progress to be made, however.

Legal education cannot truly be humanised while so many faculty members are wedded to an educational philosophy grounded in a competitive ethos. Yet, at the core of humanistic educational philosophy is the understanding that the more individuals aim for the external rewards of achievement, the less likely they are to reach their goal. Competitive cultures create powerful extrinsic motivators that undermine intrinsic motivation, skew and narrow learning, communicate a preference for hierarchy and control by the ‘winners’, and undermine professional values of cooperation and service.

Though law faculty and administrators increasingly are willing to talk about these issues of supportive educational climates, until resources reflect this commitment, the talk is mere lip service. For example, we know that learning is enhanced if students are engaged, and we know that their engagement depends on our engagement. Yet, the LSSSE results indicate that ‘about 15 per cent of [first-year students] and about one quarter (24 per cent) of [second-year students] never received prompt feedback from faculty members’. Why, when we know what is required for engaged and balanced learning environments, do we not make the structural and curricular changes necessary to create these environments?

The simple answer is that teaching is only one of our priorities. All resources must be balanced in achieving the two primary aims of law schools: scholarship and teaching. Today, it seems that all resources must be balanced in achieving yet a third aim: reputational enhancement. In that balancing act, it is difficult to give teaching real weight. How can a law school leverage a faculty member’s dedicated, respectful, energised devotion to student learning into a glossy brochure to improve one’s reputational rankings in US News & World Report? In contrast, a faculty member’s expertise in a subject, publications, speaking engagements, and news reports that attest to that expertise, can indeed be the subject of reputational marketing.

To do no harm, law schools must deliberately and courageously choose to ratchet down or step out of the hyper-competitive value system that pervades our institutions and reapportion resources and institutional priorities to create positive learning environments for students.

Much of the work in humanising legal education has been about making this careful study of our pupils and the compassion and benevolence we might extend to them. We teach our students as individuals, with all their diverse personalities, intelligences, backgrounds, and circumstances.

Proponents of humanisation are concerned that students develop themselves as confident, caring, reflective professionals, discerning their own values and purposes, and knowing how to work with others collaboratively and to understand diverse perspectives.

Here is where the skeptics might take issue: ‘These are not the goals of a law school education!’ they would protest. ‘These are adults! It’s not our job to help them “find themselves” or “understand others”. They’ll do that on their own’. It is not that opponents would disagree that the goals of the humanisers are important — simply that it is not the law school’s job to help the students reach these goals. They are confident that students will come out of law school better and more well-rounded without their intercession.

Students do not just ‘pick up’ their development as professionals along the way. To the contrary, students will be formed by our teaching regardless of our intention. Professional development, like morals teaching, is more often ‘caught than taught’. Indeed, I have argued that fundamental features of our institutional structure, such as grading curves and solitary evaluation methods, prefer values of competition and institutional control while the values of learning, cooperation, equality, and professionalism remain underprivileged. Marjorie Silver argues that ‘[l]egal education should cultivate emotional intelligence’ and law schools should take responsibility for preparing students for the emotional aspects of lawyering.

Reform, however, has come slowly, and we have far to go. While 70 to 90 per cent of students agree that law school gives them a broad legal education, teaches them to think critically and analytically, helps to develop legal research and writing skills, and fosters self-directed learning, fewer than 50 per cent believe that law school has helped them understand themselves or develop a personal code of values and ethics.

The scholarship of humanising legal education must develop more tools for helping students become reflective, cooperative practitioners. The Washburn University School of Law Humanising Legal Education Symposium demonstrated some fine examples of that emerging scholarship: using insights from positive psychology and counseling theory, we are learning even more concretely and empirically how to help students deal with the stress of law school. There is better understanding of what harms our students’ sense of self — the pressure of extrinsic rewards that robs students of intrinsic motivation and the lack of control and autonomy over their schedules, lives, and learning in law school.

The answer to humanising legal education and legal practice lies in rekindling professional values of peacemaking and service. It is little wonder that many of the voices one hears in the humanising community are those of faculty members and practitioners working in fields such as alternative dispute resolution, therapeutic jurisprudence, collaborative law practice, holistic lawyering, and public interest practice.

Humanising legal education is concerned with the whole student, with developing the student’s capacity to meet the needs at the top of Maslow’s hierarchy — self-actualisation and concern for others. However, the challenge is that, while focusing on the top of Maslow’s needs hierarchy, it is easy to forget that money matters, because money supplies the bottom of the need hierarchy. Money is the single greatest challenge to humanising legal education because economics drives much of the form and structure of legal education.

Why is the Socratic Method, in large classes with one exam at the end of the semester, still used today? It is an incredibly efficient method of education. Why do we have a caste system of faculty in which low paid, non-tenure track women shoulder the lion’s share of labour intensive skills instruction and academic support? Discrimination aside, it is cheap.

How can students become agents for justice when the beginning salary for attorneys in public interest work was $36,656 in 2004? How can students follow their own career goals without feeling that anything other than corporate representation is second-best when attorneys in small firms earn dramatically less than those in larger firms? When debt loads soar and salaries stagnate or fall, students simply cannot be empowered to step out of the income race. Indeed, a national study recently ‘found that law student debt prevented 66 per cent of [law] student respondents from considering a [public service career]’.

To truly humanise legal education we must step out of the classroom and hallways and advocate on behalf of our students. We must step into the admissions and financial aid offices and take into account the values of investing in our students. We must step into the state houses to advocate on behalf of law, lawyers, and legal education.

Clearly, we need to take our skills in education to reach out to the public and help them understand the value of law and the importance of investing in law school.

If changing the culture of law schools seems a difficult task, changing the economics of law schools may prove even more difficult. Yet, if we sincerely seek to do no harm, to teach the whole student, and to prepare students to be peacemakers and agents of justice, we must put our values into action in the most concrete of terms.