Thursday, March 20, 2014

Reconceptualizing Legal Education from the Socialization Stage to the Self-Authoring (Self-Directed) Stage

One of the things that I and others in the legal education movement (e.g., here, here) have stressed is the need for law schools to develop self-engaged, self-directed graduates. Law schools need to turn out lawyers who can think on their own and be creative. It is these types of lawyers who best represent their clients and change the law. A recent article by Professor Michael D. Cedrone, The Developmental Path of the Lawyer, articulates this concept very clearly.

Professor Cedrone writes, "Research beyond Carnegie is necessary to appreciate the developmental complexity of law students’ paths into professional life. Achieving a mature professionalism requires that students reshape their fundamental ways of thinking and making meaning about the world. A career in law requires wrestling with the ethical demands of the profession and with conflicts between personal values, the values of clients, and values of the legal system. Law students must recognize the multiple pressures on lawyers as agents in the legal system. These challenges are developmental. Entering the legal profession requires individuals to develop new ways of understanding the world."

He continues, "This Article focuses on the ways in which law-learning is fundamentally a process of human development that must embrace the relationships and tensions between self, client, legal system, and society. Though not fully considered by the Carnegie authors, this developmental view militates in favor of Carnegie’s central recommendation that students should be asked to apply cognitive knowledge of legal doctrine in practical contexts accompanied by mature reflection on ethics and professional purpose. Such experiences can result in developmental changes. Knowing the process by which this developmental change takes place will assist law schools in designing a curriculum that supports these changes. A developmental approach to the law curriculum requires a new paradigm that exceeds the Carnegie recommendations. In such a revised curriculum, students would be expected to discover and create knowledge by being both individually and collaboratively responsible for investigation of law and facts. Students would also write more, so that they capture their new ways of understanding and analyzing problems. These modifications to the curriculum would ensure that experience and reflection on experience have a more intentional and central role in students’ formation."

Based on research in general education scholarship, Professor Cedrone lists the stages of adult cognitive development: First order: impulsive, Second order: instrumental, Third order: socializing, Fourth order: self-authoring, Fifth order: self-transforming. Only the third and fourth orders are important for this discussion.

In the third order, the "socialized way of knowing," individuals can undertake abstract thinking and deal with the theoretical. This order stresses social identity–"the self is no longer the only ‘set or category’ (as in the more concrete second order), but a person can instead ‘experience the self in relation to a . . . set or category.’" In this order, a person can "can internalize both the individual’s own viewpoint and that of another person, and can make self-reflective decisions based on the interaction of these viewpoints." Significantly, individuals "can ‘subordinate their needs and desires to the needs and desires of other people.’" Thus, this is a socialization stage–"education is pursued to "meet the goals and expectations of external authorities . . . and/or valued others.’"

In general, scholars criticize social construction education ("social constructivism") approaches as romanticizing the community and not preparing students "to critically examine the community's values, practices, and beliefs." The danger is that this order fails to help individuals "perceive limits in the dominant paradigms of the day or to perceive conflict between those paradigms and more fundamental values." Stated similarly, "Membership in these communities does not include an ability to stand apart from the community and appreciate that membership in a community can sometimes involve blindness to the community's evils." As one author has noted, "this epistemology does not empower students with a capacity to reflect on how lawyers think—in sum, to move beyond the socializing values of the third order of consciousness." It certainly does not create lawyers who are capable of becoming self-engaged, self-directed thinkers.

In contrast, the fourth order is the "self-author[ing]" way of making meaning. At this level, "knowledge is no longer the property of external authorities or experts; instead, it is constructed ‘through experience, reflection, [and] analysis,' informed by thoughtful use of ‘teacher, texts, [and] authorities.'" In this stage, identity is separate from the social context, and "individuals at the fourth order can take perspective and reflect on their roles within social contexts and systems." In other words, "lawyers and law students who function at the fourth order have the capacity to critically reflect on the legal system as a whole and on their own interaction with and role in the system." Individuals at this level can "make systematic critiques of the law by observing both how numerous aspects of the legal system interact with each other and from observing the moral reasoning that takes place as the values of the legal system interact with their own personal values." Individuals at this stage can change the discourse.

I hope that you recognize that law schools today mostly function at the social construction stage. To create the best lawyers, law schools also must help their graduates achieve the self-directed or self-authoring stage. As Professor Cedrone has argued, "Academic environments must do justice both to the social view of legal education and to robust notions of individual development." He has added, "The self-authoring way of knowing best permits lawyers to function within the legal community without being consumed by it"

"To achieve these ends, the developmental view requires that legal education be reconceptualized. The developmental view posits that education is not merely the collection of ‘cumulative bits of knowledge or even heightened understanding of complex concepts.’ Instead, education should prompt a ‘change[] in general worldview.’ This kind of education (1) sets learners on a ‘growth trajectory’ and guides them to make ‘progress to more advanced knowledge levels’; (2) includes learning experiences which produce ‘fundamental restructuring,’ i.e., ‘qualitative shifts in knowledge reorganization’; and (3) builds support for ‘selfscaffolding,’ by which learners become able to construct ‘more advanced knowledge’ independently. Self-scaffolding becomes the basis for lifelong learning?"

I will let you read Professor Cedrone’s article to see his suggestions for helping students reach the self-authoring stage. You can find my suggestions here.

In sum, law schools need to reconceptionalize legal education from the socialization stage to the self-authoring stage.

(Scott Fruehwald) (hat tip: James Levy)

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