Legal academic cultures and student learning

Nick Johnson, University of Warwick

Fiona Cownie’s recent work on the culture of legal academia (Cownie, 2004) shows that rather then a polarisation between black letter lawyers and law in context theorists, most law teachers operate with an inclusive set of epistemologies which include a number of differing perspectives.

This multiplicity raises a number of questions about student learning:

• Are these differing perspectives communicated to students?
• Do they cause any confusion or dissonance in students’ understanding of a particular object of legal knowledge?
• How is the acquisition of future learning about law (for example, at the professional stage) affected?

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The cultural transmission of legal education

Tried tonight to read a case for the first time. It was harder than hell…It was nine o’clock when I started reading. The case is four pages long and at 10.35 I finally finished. It was something like stirring concrete with your eyelashes. I had no idea what half the words meant. I must have opened Black’s Law Dictionary twenty-five times and I still can’t understand many of the definitions. There are notations and numbers throughout the case whose purpose baffles me. And even now I’m not crystal-clear on what the court finally decided to do.

 

Even worse, [H] asked us to try our hand at briefing the case – that is, preparing a short digest of the facts, issues and reasoning essential to court in making its decision. Briefing, I’m told, is important. All first year students do it so they can organise the information in a case, and the various student guide books make it sound easy. But I have no idea what a good brief looks like or where to start. What in hell are the facts for example?….I’m nor sure what to pick, how abstract I’m supposed to be, and whether it should include items like her hourly wage. Is a brief supposed to sound casual or formal? Does it make any difference how a brief sounds? Should I include the reasoning of the judge who dissented as well? Is this why students hate the case-study method?

— (Scott Turow – One L: What they really teach you at Harvard Law School)

Law school stole my hopes of change and robbed me of any surviving sense of the relevance of my experience of law school. My experience of law school was of the denial of the relevance of my experience of law school. The irony of that paradox, of the experience of repression as a mode of knowing, of the embodiment of denial as a mode of being, is the secret of the school’s success as a rite of reproduction: an institutionally managed trauma gives birth to a conforming or believing soul.

 

The trauma produces…the ‘black-letter’ lawyer, the dull white face with one less thought each year.

— (Peter Goodrich – Of Blackstone’s tower: metaphors of distance and histories of the English law school)

The ethnography of the legal academy

The starting point for this paper was Professor Fiona Cownie’s paper at the Society of Legal Scholars’ conference in Sheffield in 2004 (Exploring a discipline: the culture of laws and the professional identities of academic lawyers). In that paper she outlined the research which is elaborated in greater detail in her recent book, _Legal academics: cultures and identities (Cownie 2004). The book is based on a series of interviews with legal academics in both old and new universities. The interviewees are at different stages of their careers and the sample was controlled for gender.

The approach is consciously ethnographic; Professor Cownie’s objectives are to explore the self identities of legal academics and from these subjective experiences to construct their world and understand their culture. Professor Cownie acknowledges that in conducting this research she has a problem; she is an insider – a part (albeit a distinguished part) of the world she is studying. There is little distance here between the subject and researcher of a type which created the Martian insights of classic ethnographers. (The reference here is to the ‘Martian’ school of poetry lead by Craig Raine, which is characterised by startling imagery and similes.)

The metaphor of distance in this context has been ruthlessly analysed by Goodrich (1996). He characterises the stance of the great ethnographer of the English law school, William Twining, as ‘Olympian’ in its detachment. Twining makes his points through his ideal law school, the University of Rutland Law School. Cownie makes hers through a careful delineation of the role of the insider.

She celebrates her familiarity with the domain and acknowledges the reflexive methodological problem of both knowing and being known. Not for her the innocent surprise of the outsider at finding out that legal academics are as culturally remote from the legal profession as they are from secondary school teachers. She shares the annoyance of her fellows at the ignorance of other university social scientists, who think that legal academics make vast sums moonlighting as practitioners or who believe that academic law has no serious intellectual base.

Yet, whilst it is fun for us, is there enough here to justify the book and the intellectual effort which has been expended on it? Law teachers are a relatively small estate in the territories of academia. They are – to others at least – rather less fascinating than the Trobriand islanders or the Nuer, the classic subjects of early ethnographers.

Cownie gives the primary justification for studying legal academic culture at the outset of her paper, in the following quotation:

“Academics train the members of an increasing number of leading fields outside the academy; its ideas speak to economy and politics, to social order and culture; and its leading scientists produce knowledge and technique in such world-transforming areas as atomic energy, biotechnology and computerization. In so many ways, and more than before, it touches the life of the general public. Yet in the face of such importance, how much do we know about the development of this profession, other than in simple numerical terms?”

— (B Clark (ed) The academic profession (1987))

The pre-eminence of lawyers (some of whom still have law degrees) in the upper echelons of power justifies the construction and analysis of an academic world through which they have passed. Yet a very large question is being begged here. Is legal academic culture lastingly influential on the undergraduates who are subject to it at a formative moment in their lives? Is this world through which young lawyers travel one which leaves them unmarked? How far do the precepts, theories and epistemologies to which law students are exposed to persist, or do they wither when tested in the ‘real world’?

Besides an ethnography of the culture of legal academics, the justification for its study must include an examination of cultural transmission;lthe effect, continuing or otherwise, of the cultural artefacts on its other subjects, law students. These subjects figure surprisingly infrequently in Cownie’s work. The neglect appears to be that of the primary subjects of the research, the academics themselves, rather than that of the researcher.

We are all contextualists now

Cownie delves deep into her subjects’ epistemologies to find a miasma rather than clearly delineated positions. Her question to them is as follows:

How would you describe your approach to researching and teaching law, on a scale of black letter to critical legal studies?

The results are something of a surprise to the author. Although the law in context movement has been around for at least 40 years and critical legal studies (CLS) for at least 20, many have seen their influence as marginal, leaving the edifice of the positive law curriculum untainted by the influence of mainstream social science.

Cownie’s respondents were as follows:

Overall, about 10%…described themselves as taking a socio-legal/CLS approach, 40% as adopting a socio-legal approach and the remaining half described their approach as black-letter.

— (Cownie 2004:54)

These self ascriptions tended to be qualified, and seemed to show the respondents’ emphasis rather than their conviction. In fact, Cownie’s conclusion presents a picture of pragmatic eclecticism:

It becomes clear that, whatever they call themselves, the majority of academic lawyers occupy the middle ground between the two extremes of pure doctrinal analysis and a highly theoretical approach to the study of law. Arguably, law is a discipline in transition, with a culture where a small group still clings to a purely doctrinal approach, but a very large group (whether they describe themselves as socio-legal or not) are mixing traditional methods of analysis with analysis drawn from a range of other disciplines among the social sciences and humanities.

— (Cownie 2004:54)

This pick and mix approach to disciplinarity amongst one’s colleagues provokes a number of thoughts. To what extent is their self ascription an accurate reflection of their teaching as perceived by their students? Often contextual material is used just to give a perspective to an essentially black letter analysis. It provides an explanation and adds a little meaning. However, when it comes to assessment, it would be interesting to classify the assessment objectives into the categories used by Cownie; black letter, socio-legal and CLS.

Secondly, the categories are hardly value free and carry all sorts of overtones (in different law schools) within the academic culture. Are these self images or self ascriptions?

More substantially, what are the effects of this mongrelisation of epistemologies? On the one hand there is a clear danger of dumbing down, by wrenching material from its theoretical framework and appropriating it for purposes other than which it was intended. No doubt it can be argued that academics do this all the time, indeed it is in the nature of academic endeavour. But the wholesale de-contextualising of law in context, the rendering of theoretical positions as atheoretical, deprives the student of the richness of properly argued stances and reduces academic study to colour supplement levels.

In case this view is regarded as dyspeptic overstatement, I cite a recent article in the Journal of Legal Education (Anderson 2004). In this article Jerry Anderson discusses how a law teacher (presumably of the lumpen eclectic variety) can best appropriate the insights of critical legal studies. One problem is that the writings are opaque:

For many, the language of CLS theory remains incomprehensible – a kind of Middle Earth dialect that we would not dream of inflicting on our students.

— (Anderson 2004:201)

He cites examples of the language – “inalienated relatedness”, “intersubjective zap”, and comes clean about his purpose:

Is it possible to separate the analytical tools of CLS from the ideological baggage?

One of the primary reasons for attempting the task is because the students find it all too difficult:

Most students are not prepared to think this far outside the box.

Whilst Anderson’s honesty is refreshing, it is also revealing. We are all rightly catholic in our trawling for material for our courses. The more perspectives the better and never mind the intellectual roller-coaster for the students. But the selection of extracts from radically different positions, the précising of complex positions in bite-sized gobbits can lead to the same type of superficiality in the use of the social sciences as black letter lawyers have seen with the triumph of casebooks over law reports.

There is a particular irony here when one places the blurring of legal academia against a backcloth of the restructured curriculum. Modular programmes are based on the explicit assumption that students can construct programmes which allow them to experience different intellectual frameworks. As Barnett, who is uncharacteristically benevolent towards modularisation, says:

A discipline is an epistemic ordering of a sub-culture of the academic community; but modular programmes…reflect sets of interests held by other interest groups.

— (Barnett 1994)

The assumption of those supra-disciplinarians who construct modular schemes (and of the students who take the courses) is that the sub-group of modules representing the discipline will give the student an accurate, if attenuated, reflection of the discipline. A set of law modules which adopted an inclusive approach to social science would risk facing students with repetitive material or worse, material dealt with more professionally in other disciplines.

Finally what about the ringing clash of paradigms? A melange of Ptolemaic legal positivism, Copernican law in context and (quantum theory?!) critical legal studies could be a real intellectual mess. The astronomical analogy is accurate, since the essence of legal positivism is the fixed, pivotal position of law in the intellectual universe, whereas contextualists displace that edifice, showing how law is constituted by and is constitutive of other social relations. As Philip Selznick puts it:

From a jurisprudential point of view, ‘law in context’ is not an innocent idea. If we take it seriously we implicitly accept that positive law is continuous with as well as different from other norms and practices – including patterns of social change – which bring law into being or affect its character.

— (Selznick 2003)

Although the ‘law’ of ‘law in context’ is more than a dependent variable for the analysis of social change, it is considerably less than the authoritative, dominant source envisaged by legal positivism.

These positions, as Douglas Vick points out in a recent article examining the relationship between interdisciplinarity and the discipline of law (Vick 2004) have their adherents:

Although the recriminations that pass between ‘doctrinalists’ and ‘interdisciplinarians’ are less bitter today than in the past, there remains a discernible friction between the two schools of thought.

(In the late 1980s for example, the polarisation in one Australian law school was so extreme that the law school “threatened to self destruct”. E Clark and M Tsamenyi ‘Legal education in the 21st century: a time for challenge’ in What are law schools for? ed. P Birks (1996).)

Happily, most of Cownie’s respondents described their law schools as ‘pluralistic’ (Cownie 1994:59). However, her findings give new dimensions to pluralism. Besides peaceful co-existence within the law school, these fundamentally different theoretical frameworks now cohabit within the psyches of individual law lecturers. It is devoutly to be hoped that no haemorrhaging or implosions result from the tensions between them.

Yet as the title to this section admits, we all do it. All of us excise, appropriate and mix materials of different origin and tenor to elaborate and explain our arguments to students. It’s half the fun of teaching. We shift in our analysis to different levels, with the students hopefully hanging on to our coat tails. We often accommodate radically different approaches to the same object of study, suspending disbelief in the cause and pursuit of knowledge.

Some of the mixes produce a smooth and interesting amalgam, some curdle. Ultimately the central tenets of legal positivism are antithetical to contextualism and CLS. The pure black letter tort lawyer who then expounds the economic basis of tort law is either engaging in a contradiction or entering a wholly different discourse. Conversely, the contextualist who uses rigorously the tools of black letter law – case analysis, statutory interpretation – can do so without intellectual conflict. The exposition of what the law actually is is not precluded by contextualism. Determining what the law actually is is a necessary prerequisite to understanding its role in society.

This is not a distinction without a difference. The soft positivism of many of Cownie’s respondents may serve to confuse rather than enlighten. My contention supports both Cownie (1994:65) and Bradney’s (1998) views that pure legal doctrinalism may be in its death throes. The sad thing is that even many of its adherents will not notice its demise.

The transmission of legal academic culture

Cownie’s first argument for the study of legal academic culture was that the academic world plays its part in the construction of the thinking of all senior professions and vocations. Its influence is pervasive and subtle; whilst no one doubts the existence of an effect, it is arguably unmeasurable. Untangling the various strands of the university experience; the acquisition of knowledge, skills, ethics, politics, sexual experience, the encounter with new and diverse people with ideas never before dreamed of, all are part (one hopes) of the heady mix of undergraduate life. Most of all, the experience is personal, and intimate and may owe much to a few vivid moments of enlightenment during the long slog of a law degree. We also know that all knowledge and experience, once acquired, are transformed by the process of continuous learning. The knowledge of contract acquired during the first year of a law degree may still be being used by a practising lawyer, even though the lawyer can no longer recall more than one or two cases.

“What period of retention are we talking about? One crucial period for retention is the period, in the English system, between acquisition of academic knowledge (in the broadest sense) and the beginning of vocational training for those entering practice. Vocational legal training has to work on certain presuppositions about learning in law. If those assumptions are false, vocational learning may be inhibited. All ‘stage’ systems of education rest on the shaky assumption that sufficient is acquired at stage one to enable further development at stage two, and so on. Even in the area of ethics, the central justification for the academic study of legal ethics is the final objective of “making lawyers good”

— (Economides 1998).

No one expects or makes claims that legal education can give a Jesuitical indoctrination. (Vocational legal education may be different. David Cruickshank, a prominent Canadian legal trainer, once told me that, when observing cases in the British Columbian courts, he can tell which trainer trained counsel in advocacy skills, even up to five years post-call.) No legal academic worth her salt expects acolytes, let alone clones. Yet all of us aim to produce an effect in our students which goes beyond the acquisition of knowledge or its reproduction in examinations. Most of Cownie’s respondents appeared to want to instil an intellectual method, “getting them to think”. The adverbs added to the phrase will differ; “critically”, “analytically” – the usual paradoxes are rounded up:

I’m trying to get them to think like a lawyer – I don’t mean a lawyer in practice.

— (Cownie 1994:77)

Where is the hard evidence of success? The irony is that there is plenty of evidence in the literature of evidence of rejection of the method. Scott Turow as usual gives an arresting insight:

“At home, Annette told me that I had started to ‘lawyer’ her when we quarrelled, badgering and cross-examining her much as the professors did students in class. And it seemed to me there were other habits to be cautious of. It was a grimly literal, linear, step-by-step process of thought we were learning. The kind of highly structured problem-solving method taught in each of Perini’s classes, for instance – that business of sorting through details, then moving outward toward the broadest implications – was an immensely useful technical skill, but I feared it would calcify my approach to other subjects. And besides rigidity, there was a mood to legal thinking which I found plainly unattractive.

Legal thinking is nasty” I said to Gina…Thinking like a lawyer involved being suspicious and distrustful. You re-evaluated statements, inferred from silences, looked for loopholes and ambiguities. You did everything but take a statement at face value.

So on the one hand you believed nothing. And on the other, for the sake of logical consistency, and to preserve long established rules, you would accept the most ridiculous fictions – that a corporation was a person…

What all that showed me was that the law as a way of looking at the world and my own more personal way of seeing things could not be thoroughly meshed: that at some point, somehow, I would have to learn those habits of mind without making them my own in the deepest sense.”

— (Scott Turow – One L: What they really teach you at Harvard Law School)

Paradoxically, no one is more certain of the cultural influence of the law school than those who react against its hegemony. Goodrich, in the passage quoted in the preface to this paper, pictures the positivist law school’s monstrous creation; “the black letter lawyer…with one less thought each year.” Duncan Kennedy (Kennedy 1992) shows the potentially deadening effect legal education can have on moral and political thinking:

The issue in the classroom is not left against right, but pedagogical conservatism against moderate, disintegrated liberalism. No teacher is likely to present a model of either left pedagogy or vital left theoretical enterprise, though some are likely to be sympathetic to progressive causes, and some may even be moonlighting as left lawyers…The intellectual content of the law seems to consist of learning rules – what they are, why they have to be the way they are – while cheering the occasional judge who seems willing to make them marginally more humane. The basic experience is of a double surrender: to a passivitising classroom experience and to a passive attitude towards the content of the legal system.

The central issue raised in this paper is whether the soft positivism, if indeed it is the dominant form in the law school, will influence the recipients of the method, the students. Evidence is likely to be anecdotal, fragmentary and by analogy.

My own experience, as an undergraduate with the callowest of intellects, will serve to begin. My memories of jurisprudence classes (which I enjoyed) were of lectures giving a potted summary of each main philosophical standpoint. I was utterly convinced by each Weltanschauung and mortified by the ten minute demolition of each view with which the next lecture would begin. I well remember my discomfort on reading EP Thompson’s attack on Althusser (whose cause I had espoused…)

“Aspirant intellectuals, whose amateurish intellectual preparation disarms them before manifest absurdities and elementary philosophical blunders, and whose innocence in intellectual practice leaves them paralysed in the first web of scholastic argument they encounter.”

— (Thompson 1979)

I think that was probably me. My point is a simple one. Undergraduates, by definition, are immature and impressionable. The examination system has taught them one unerring truth; to succeed, you must learn what and how the examiner wants you to learn. If she wants us to be critical, we will be critical. If she wants us to be black letter, we will be black letter. However thick the veneer of liberalism, most students know the score. The lecturer holds all the cards. She has the monopoly of knowledge, she marks the exam paper.

If there is an intellectual fuzziness about the new soft positivism of the current generation of law schools then it is likely to be transmitted to the students. Garbage in, garbage out. Whatever you may think of the harder, purer version of positivism which Scott Turow describes, there was no doubt about its rigour.

This fuzziness may be most apparent amongst weaker students. I noticed it with students on the Legal Practice Course. At the beginning of the course the staff were aware of the difficulties many students had in adopting a new stance towards the law; one which descended from the abstract to the particular and refocused the issues on the needs of the client. We called this the ‘unlearning phase’. The tools of legal analysis had to be used in a new environment; facts were slippery and application of the law had to be tempered with the client’s interests.

Most adjusted quite quickly, but a significant minority found real difficulty. A common problem was weak legal skills. The examination of a statutory instrument of moderate complexity was often beyond them. The detailed interaction between case law and the establishing of evidence, they found more rigorous than the forms of analysis required of them at the degree stage. Their weak contextualism had not been combined with a rigorous critique of what the law actually says.

Conclusion

This paper aims to open up two arguments rather than to reach definite conclusions.

Firstly, I suspect that many of you would argue that the multivariate approach to law teaching, mixing the levels of analysis of the object in question, is intellectually desirable and beneficial to student learning. In principle I would not disagree. My hesitation is over the nature of the particular mix. Legal positivism does not mix well with contextual approaches, whereas there is no conflict in using the hard tools of legal analysis in the service of a contextual approach. Unfortunately not all contextualists take this view. As one of my colleagues at Warwick put it:

The trouble with law in context teachers is that they recognise every context for law except the professional one.

(OK, it was Roger Burridge.) The second area for debate is over the transmission of the culture of the law school to students. This is not just a question of how much law they remember but how their ethics, modes of thinking, habits of mind, skills and principles are formed and influenced in the crucible of the law school. Massive assumptions, _a priori_ statements and bland generalisations are regularly made about this transmission by both left and right. Legal education policy is built upon these assumptions, and they may prove a weak foundation.

References

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• Anderson J (2004) ‘Law school enters the matrix: teaching critical legal studies’ Journal of Legal Education vol 54 no 2 pp201-215
• Barnett R (1994) The limits of competence Oxford: OUP p136
• Bradney A (1998) ‘Law as a parasitic discipline’ Journal of Law and Society vol 25 no 1 p71
• Cownie F (2004) Legal academics: cultures and identities Oxford: Hart
• Economides K (ed) (1998) Ethical challenges to legal education and conduct Oxford: Hart
• Goodrich P (1996) ‘Of Blackstone’s Tower: metaphors of distance and histories of the English law school’ in P Birks (ed) What are law schools for? Oxford: OUP
• Kennedy (1992) ‘Legal education as training for hierarchy’ in I Grigg-Spall and P Ireland (eds) The critical lawyers handbook London: Pluto
• Selznick P (2003) ‘“Law in context” revisited’ Journal of Law and Society vol 30 no 2 p178
• Thompson E (1979) The poverty of theory new York: Monthly Review p195
• Vick D (2004) ‘Interdisciplinarity and the discipline of law’ Journal of Law and Society vol 31 no 2 p163

About the Author

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Nick is Director of Advanced Legal Practice in the School of Law, University of Warwick. He was formerly Director of Oxford Institute of Legal Practice and has been a consultant to law societies in different countries in Europe and Asia.

Last Modified: 12 July 2010