Law school culture and curriculum: Correcting social justice drift

Abstract

This article examines the problem of social justice drift among law students. The author discusses institutional measures to reverse this trend and identifies shortcomings of existing policies. Noting that the focus has been trained on expanding social justice-oriented curricular and extracurricular offerings, the author contends that mainstreaming social justice in the core curriculum of professionally accredited law degrees is more likely to prevent the attenuation of social justice commitment among students and better equip the next generation of legal practitioners to pursue careers in social justice. Options for curricular reform to this end are duly considered.

Many law students begin their formal legal education with an impulse and desire to do good: to use their degree to redress injustice within society, advance important social and political causes, and serve the public interest. ¹ A far smaller number graduate and enter the workforce ready to realise those ambitions or with that sense of professional purpose, direction, and identity intact. ² This phenomenon – social justice or public interest ‘drift’ – is well-documented within international legal education scholarship, ³ and, for reasons including unmet demand for low- and no-cost legal services, ⁴ has spurred institutional efforts to facilitate the endurance and actualisation of student interest in social justice careers. ⁵ Policies designed to avert public interest drift have tended to focus on expanding social justice-oriented curricular and extracurricular options. ⁶ Less emphasis has been placed on mainstreaming social justice in the core (compulsory) curriculum of professionally accredited law degrees. This article argues that the promotion of social justice lawyering within and through the core is necessary to penetrate law school culture, prevent the attenuation of social justice commitment among students, and better equip future generations of legal practitioners to pursue careers in social justice.

In the next section, I give a description of social justice lawyering and identify several factors that contribute to social justice drift. Following, I zero in on one such factor: the law school experience, highlighting certain universalities of that experience and its socialising effects. This section outlines, and highlights the limitations of, existing initiatives that seek to inject a social justice ethos into life and learning at law school. Finally, I defend a policy of curricular reform and locate entry-points for social justice and social justice lawyering in the core curriculum by reference to existing and emerging trends in curriculum design and pedagogy in Australia and overseas.

This article, while directing its suggestions for reform mainly towards Australian legal education, draws on evidence and literature from several anglophone jurisdictions. Space is given to commentary and material out of the United States (US) and Canada, for instance. These sources are relevant for a number of reasons; for one, popular conceptions and mythologies of law and lawyering that transcend cultural specificities are in large part a US export, ⁷ as are dominant pedagogical tools such as the case method. ⁸ This body of literature is also instructive for what it reveals about commonalities in the law student experience and shared challenges faced by legal educators globally amid the ‘globalisation’ of legal education, ⁹ including social justice drift. This is not to elide the significant differences between legal education in the US and Australia (and elsewhere), including the dominant juris doctor (postgraduate) model in the US. ¹⁰ Rather, mining both bodies of literature is a means of illustrating that social justice drift, as it is encountered in Australia, is not necessarily a singular or unique phenomenon. This in turn invites consideration of reform options and strategies to counter social justice drift that have been adopted overseas and may be taken up within the Australian legal education landscape.

Social justice lawyering and reasons for social justice drift

Social justice lawyering or ‘cause lawyering’ ¹¹ have been variously defined, ¹² no doubt due to the manifold meanings that social justice is capable of bearing. ¹³ Short of landing on a single, comprehensive definition, the attributes of a social justice lawyer may be understood as encompassing, first, a professional practice and philosophy dedicated to supporting underrepresented social or political causes; ¹⁴ and second, a commitment to using lawyerly privilege and technical expertise to address the legal needs and interests of vulnerable and marginalised individuals and groups, including those who cannot afford full-cost legal advice and assistance. ¹⁵ Rand emphasises the role of social justice work in offsetting power imbalances, structural disadvantage, and systemic oppression:

Because power and law are connected, people who have less power often lose, no matter what is fair or just. They often have law act on them instead of for them. They often struggle to use law for themselves to address their needs. They need legal help to access the system and to defend against the system when it works against them. ¹⁶

In Australia, ¹⁷ social justice lawyers can be found working within legal aid, community legal centres (CLCs), ¹⁸ Aboriginal and Torres Strait Islander Legal Services (ATSILS), ¹⁹ and subnational, national, or international non-government, non-profit organisations with a humanitarian, human rights, or other social justice focus. This is consistent with common conceptions of public interest work. ²⁰ It is possible, however, to practise with a social justice lens in most – if not all – settings where legal services provision occurs, ²¹ and there is much to be said for enlisting commercial and property law concepts and expertise (often assumed to be the province of ‘conventional lawyering’) in service of social justice outcomes. ²² The Mabo case, ²³ as the genesis of native title law in Australia, is a prime example of this, where senior members of the independent bar specialising in land law worked with ATSILS and Indigenous peoples and, through their combined efforts, made major inroads into Aboriginal land rights recognition in Australia. ²⁴

For many law students, an interest in social justice is behind the decision to enrol in a law degree; ²⁵ by comparison, few enter law school with a clear desire or vocational ambition to work in traditional private legal practice. ²⁶ Despite this, a substantial proportion of graduates are funnelled into traditional private practice (if they end up practising at all), ²⁷ and it is common for the best and brightest to compete for seasonal clerkships and ongoing positions at large corporate firms. ²⁸ This trend is supported by anecdotal and statistical evidence, ²⁹ including the results of studies conducted at several prestigious American law schools. ³⁰ Importantly, this about-turn manifests not only in career preferences, but in graduate attitudes toward social justice, public interest and pro bono work. ³¹ While this waning of social justice interest may be more pronounced at elite law schools (contributing to the problem of legal talent maldistribution), ³² as a pattern it has been observed across a diverse range of legal educational institutions. ³³

Barriers to pursuing social justice careers and factors that operate to dilute student commitment to social justice are multiple. Financial considerations (such as the spectre of hefty student debt and the desire to enter stable, high-paying employment); the pursuit of prestige and other perks; ³⁴ the promise of high-quality professional training and opportunities for career progression; and the precarity and scarcity of jobs in the overstretched, majority government-funded community legal sector ³⁵ lead many law graduates to seek high-status positions in private firms of the kind that mainly service wealthy and/or corporate clients. ³⁶ Economic realities and other pressures intervene to usher graduates down well-worn paths marked out by conventional indicators of professional success, ³⁷ distancing them from their original (in some cases naively altruistic) ³⁸ motives for attending law school.

It is clear that alleviating and eliminating some of these barriers and burdens is properly the province of government. In Australia and elsewhere, student debt relief or abolishing tertiary education fees altogether, and increased investment in overburdened, under-resourced legal aid commissions and CLCs, are two ways our democratically elected representatives could help to prevent social justice drift. ³⁹ However, legal educators and universities have a responsibility to ensure graduates are positioned to pursue careers in social justice. ⁴⁰ As Adrienne Stone observed, this responsibility may be readily accepted if and so long as we believe that lawyers should act as ‘guardians of a fair and equitable legal system.’ ⁴¹ This leads me to consider a further influence on the strength of law students’ and graduates’ commitment to public interest and social justice lawyering: the experience of culture and curriculum at law school.

Legal education: culture and curriculum

The years spent at law school are formative. They involve a process of professional and moral socialisation, carving out students’ ‘values, habits of mind, perceptions, and interpretations of the legal world, as well as their understanding of their roles and responsibilities as lawyers.’ ⁴² It is well-established that legal education – in its formal and informal, direct and indirect, and overlapping curricular and cultural dimensions – has a hand in determining student inclination toward social justice work. ⁴³

This conditioning begins early, before students even set foot on campus, and continues throughout their legal training and beyond. As Lawton points out:

[T]he means by which law schools admit, sort, and evaluate law students creates a competitive environment where the ‘best’ students – sorted by grade point averages and [admission test or school certificate] scores, not social justice work – are accepted into the ‘best’ law schools, receive the ‘best’ grades, and receive what are often characterized as the most coveted job offers – working at a large, private law firm. ⁴⁴

Law students report distinctive impacts on their personal and intellectual development, referring to the profoundly homogenising yet atomising effects of an educational system and culture that valorises rationality, adversarialism and individual achievement over communal effort, ethics and the non-combative resolution of grievances and disputes. ⁴⁵

What is taught (and not taught) ⁴⁶ at law school and how it is taught is instrumental to this process. It is also a key reason – notwithstanding positive changes such as increased opportunities for students to participate in pro bono work ⁴⁷ and undertake clinical placements ⁴⁸ – why social justice lawyering remains counter-cultural within law school and the profession itself. ⁴⁹ There is substantial evidence that lessons in legal content and skills informed by traditional pedagogy drive social justice drift. ⁵⁰ The 2007 Carnegie Report, a comprehensive review of United States (US) legal professional education, found that the customary case method used in most Western law schools – with its focus on ‘pure’ doctrine as explicated in judicial decisions – leaves little room for substantive classroom discussion of the ethical and justice implications of legal rules and processes. ⁵¹ Meanwhile, heavy reliance on casebooks sidelines concern for the lived realities and individual needs of clients. ⁵² In this connection, Rice problematises the privileging within the Australian law curriculum of ‘cases that have been run by private practitioners, and contested by private interests that have the resources to litigate and thereby make law’, citing this as one way that lawyering has come to be equated, ‘insidiously’, with private legal practice. ⁵³

Selection of, and time devoted to, certain topics may further reinforce this social justice-blindness. Coverage of residential tenancy law in real property courses, for instance, is often only cursory; ⁵⁴ as a result, many students enter the profession unaccustomed to thinking about, and unprepared to assist, persons who rent rather than own property (low-income individuals and households and other ‘out-groups’). ⁵⁵ Instead, they are primed to work with and for private, commercial and corporate interests, and represent well-resourced parties. ⁵⁶

In terms of skills, the focus on legal issue-spotting, ⁵⁷ justifying answers to problem scenarios on exclusively legal grounds, and the ability to distinguish apparently like cases and connect seemingly dissimilar ones, and to develop arguments in favour of diametrically opposed positions (irrespective of their substance), generates a ‘narrowing of perspective.’ ⁵⁸ This emphasis, paired with a relative lack of emphasis on notions of substantive justice, ⁵⁹ is liable to cultivate among students indifference to the social and political contexts and consequences of the law, and a sense that they ought to become ‘legal technicians’ and ‘passive practitioners’ committed to upholding the status quo, rather than discerning leaders in service of the community. ⁶⁰ The result is cynicism, a dampening of idealism, ⁶¹ and, as Granfield suggests, ‘a shift from humanitarian and helping concerns to an emphasis on mastering the skills that distinguish the professional from the layperson.’ ⁶²

In terms of the relationship between the academy and the profession, and the bridge between the two that law school represents, it is worth noting that positive changes have been observed in recent years, particularly at the level of regulation. Institutional and regulatory bodies dedicated to improving the quality of legal education and training in Australia, such as the Council of Australian Law Deans (CALD) ⁶³ and the Law Admissions Consultative Committee (LACC), ⁶⁴ have pursued regulatory reform explicitly and intentionally in the public interest. ⁶⁵ This has included a focus on enhancing both the pre-admission practice-readiness and post-admission continuing competence of law graduates, and underscoring the professional responsibility of all lawyers to promote justice, fairness and service in their public professional role. ⁶⁶

One example is the development by CALD of the Australian Law School Standards (adopted 30 July 2020) ⁶⁷ and LACC’s publication of its own (more far-reaching) ⁶⁸ Accreditation Standards for Australian Law Courses in 2018. ⁶⁹ The CALD Standards promote excellence across law schools’ operations, culture, mission and vision, and, importantly, are concerned with ‘recognising the importance of equipping graduates to serve the community as good lawyers in more ways than simply technical competence.’ ⁷⁰ Standard 1.3, for example, encourages law schools to adopt mission statements oriented around values and characteristics unique and specific to them. The explanatory note to this Standard states that it would be open for a law school to make a commitment to Indigenous cultural competence, or the provision of education to students in regional Australia, as part of its institutional identity. ⁷¹ This could conceivably extend to a stated set of objectives or focus on teaching critical perspectives, ⁷² facilitating student engagement in law reform projects, experiential learning or, perhaps, social justice lawyering.

While both the CALD Standards and LACC Standards are relatively new, and their capacity to generate a shift away from unduly positivist, rules-based legal education and the mainstream conception of lawyering as private practice in Australia remains to be seen, they are evidence of a promising new regulatory impetus and direction. Building on this, in the following section, I set out the main measures law schools have taken to convert legal education from a force driving students away from public interest work, to one that attracts students to, and prepares them for, social justice careers.

Promoting social justice lawyering through ‘optional extras’

In recent decades, law schools in Australia and overseas have made concerted efforts to correct social justice drift. Educators and institutions have channelled their energy and resources into fostering ‘supportive subcultures’ to reinforce pre-existing public service values and engage students not otherwise inclined towards social justice. ⁷³ For the most part, these efforts have been directed at diversifying the curricular and extracurricular options available to students. ⁷⁴ Examples include the introduction of elective units of study that consider the legal treatment and rights of minority groups and/or utilise frameworks such as feminist and critical race theory; ⁷⁵ the establishment of social justice centres and interdisciplinary research institutes within law schools; ⁷⁶ and the rollout of clinical programs and course offerings including social justice intern- and externships. ⁷⁷ Much has been written about the natural marriage of social justice and experiential learning, ⁷⁸ and the rising tide of clinical legal education (CLE) across many countries, including Australia. ⁷⁹ Creating the infrastructure necessary to enable students to study public interest law, undertake service learning or practical legal training placements in CLCs, and participate in law reform and other projects, comes with a host of advantages. As Moss-West and Wildman indicate:

Course offerings, including certificates in public interest and social justice law, help students develop the vocabulary and theoretical background that will infuse their practical work. A certificate program along with a Center’s extracurricular activities and pro bono emphasis creates an institutional context in which students who want to pursue social justice work, either as a career, or as a lifelong commitment in any law practice, can find support, friendship, and thrive, [all while] help[ing] to fill the service gap for marginalized, subordinated, or underrepresented clients and causes ⁸⁰

Available evidence, including student testimony, demonstrates that such programs are affirming and reaffirming of law student interest in, and dedication to, social justice lawyering. ⁸¹

As a bulwark against social justice drift, however, optional curricular and extracurricular activities have their limitations. In particular, confining coverage of social justice content and competencies to elective course offerings results in inadequate exposure and unequal access across a law school cohort. ⁸² This uneven reach is reflected in the fact that clinical learning and experiential opportunities are often unpaid and not for-credit (involving an additional time commitment outside of the classroom), and are seldom a built-in requirement of law degrees. ⁸³ In the US, a number of law schools have mandated participation in an experiential program or completion of some form of public service or pro bono work as a course requirement, or a condition of graduation and/or admission to the bar. ⁸⁴ By contrast, no law school in Australia incorporates compulsory CLE, social justice-based or otherwise. ⁸⁵

In addition to this, the promotion of social justice lawyering solely through ‘optional extras’, ⁸⁶ or at the ‘elective margins’, ⁸⁷ gives rise to the risk that students will fail to appreciate the relevance of a social justice mindset to all areas of legal practice and all legal subdisciplines. ⁸⁸ More concerning still is the likelihood that students will come to view social justice work as marginal, secondary to, and separate from ‘other, “real” legal work’, ⁸⁹ or – in a competitive job market where involvement in social justice-adjacent extracurriculars ‘adds value’ to a CV – merely a means to an end (ie increased employability outside of the community legal sector). ⁹⁰ As Aiken contends,

[i]t is not enough to offer public interest commitment as an alternative to corporate practice. We need to assist the student in making an initial commitment to justice as an essential part of their identity as lawyers. ⁹¹

For these reasons, social justice as an ‘optional extra’ is insufficient; it needs to be taught expressly and intentionally where it matters most: the core curriculum.

Reforming the core curriculum

Teaching social justice lawyering in and through the core – known in Australia as the ‘Priestley 11’ ⁹² areas of academic knowledge – is not uncontroversial. Some legal educators and scholars oppose curricular endorsement of social justice, arguing that it encroaches on matters that ought to be reserved for personal value judgment and is tantamount to imposing faculty members’ views about societal norms on impressionable students. ⁹³ Exponents of this – the indoctrination argument – may acknowledge the need for ventilation of competing ideas in the classroom, and the need to produce committed public interest lawyers, but place greater importance on the need for lecturers and tutors to refrain from ‘impos[ing] their own morality upon students.’ ⁹⁴ On this view, to incorporate social justice as a unifying, overarching concept or thematic thread in the core is to misapprehend and impermissibly expand the educative role beyond mere professional training and instruction to moral inculcation. ⁹⁵ Other commentators highlight the practical difficulties associated with curricular reform of this kind. ⁹⁶ Any revision will involve trade-offs and choices, ⁹⁷ but particular challenges include developing teaching resources and finding space for social justice-oriented topics and materials in an already densely packed prescriptive syllabus beholden to professional accreditation requirements and doctrinal imperatives. ⁹⁸

In answer to the indoctrination argument, we need look no further than the points raised above: as things stand, law school culture and curriculum implicitly and explicitly inscribe and reinscribe dominant individualist paradigms. As Duncan Kennedy famously argued, legal education constitutes ‘ideological training for willing service in the hierarchies of the corporate welfare state.’ ⁹⁹ To teach as if law and lawyering is value-neutral does students a disservice. ¹⁰⁰ At the very least, legal educators should strive to counter the private practice and commercial and corporate law bias so as to restore some balance in this messaging, as stated regulatory objectives – of which the CALD standards, referring to the ‘ideal of the ethical lawyer with a commitment to community service’ ¹⁰¹ , are emblematic – increasingly recommend law schools do. Practical obstacles to curricular reform, moreover, can be overcome through tailored and considered changes (discussed below).

In terms of specific suggestions for correcting social justice drift through the core curriculum, revisiting course structure, prescribed reading lists, assessment formats, and teaching modalities with a view to incorporating a social justice perspective in compulsory units of study is a relatively simple way to fortify student interest in, and preparedness for, a career as a social justice lawyer. Adjustments can be made without compromising on the type or volume of substantive content covered, ¹⁰² thus ameliorating the practical hurdle of an over-crowded curriculum. Furthermore, there is scope for individual law schools to determine the precise form of incorporation. As Graham and others observe in the not-dissimilar context of integrating climate change concepts into the law syllabus:

Whether […] inclusion is incidental (through informal mentions and references to unassessed climate change content), embedded (through learning outcomes and assessment related to climate change), or focused (through delivery of subjects exclusively about climate change), is a matter for local institutional consideration. ¹⁰³

The entry-points for social justice in the core curriculum are likewise varied and flexible. Reforms devised and trialled by legal academics overseas confirm this; one project carried out at a Canadian law school provides a useful illustration. Cairns Way and Gilbert, Professors at the University of Ottawa’s Faculty of Law, describe a teaching initiative piloted in a first-year criminal law and procedure course in 2007. ¹⁰⁴ The course was intentionally ‘non-traditional in its content, structure, delivery, and evaluation’, designed to ‘support students in retaining their incoming commitment to social justice lawyering.’ ¹⁰⁵ It approached criminal law from a critical perspective, centring issues such as the war on drugs (as a vehicle to examine sentencing theory and practice), sexual and gender-based violence (to explore the mental and conduct elements of, and defences to, certain offences), and Indigenous perspectives (to introduce the concepts of restorative justice and legal pluralism). ¹⁰⁶ In their evaluation, Cairns Way and Gilbert voiced their initial anxieties about abandoning ‘black-letter’ strictures, but concluded that students appeared to learn far more about law and lawyering when invited to talk about

real life clients, lawyers’ strategies, winning and losing arguments […], the options and constraints facing judges, the use of public opinion and the media, [and] the cost of undertaking law reform. ¹⁰⁷

Their ‘social justice criminal law “experiment”’ exemplifies the possibility of designing a mandatory unit that is more issue-based and thematic than it is abstract and formulaic, ¹⁰⁸ and that looks at criminal law in situ, as it is experienced by groups that are overrepresented in the criminal justice system.

The Ottawa approach is neither the first, nor the only, approach of its kind. In anglophone countries, the development of pedagogical frameworks eschewing the abstract, doctrinal formalism of traditional university legal tuition in favour of more innovative, socially responsive (and responsible) methods has been an ongoing project since at least the 1960s. ¹⁰⁹ The Ottawa approach is singled out here as a contemporary exemplar initiative implemented within a settler-colonial teaching institution by individual course convenors minded to alter course content and design to enhance students’ understanding of law in its social context.

Doctrinal law can, of course, be taught with a social justice lens without overhauling or restructuring entire courses. ¹¹⁰ One simple strategy instructors can adopt is the use (where appropriate) of social justice language in lieu of, or in addition to, more technical terms of art. ¹¹¹ This can help students to draw connections between problems in the world of which they are aware and may even have some personal experience (such as Australia’s ongoing housing and rental crisis) and the law’s role in exacerbating or mitigating such issues. ¹¹² Rand explains the broader advantages of social justice terminology when deployed in the classroom across core units of study:

Using social justice terms […] gives common language to talk about power imbalances, allowing students to make connections within and between several areas of law. In Contracts, the language of unconscionability may be very different from the language used in discussing the rights of stakeholders, while each could be talked about as the rights of the less powerful against a powerful entity. If the Contracts teacher talks about power imbalance and unconscionability, after the student has heard in Property about implied warranties of habitability in terms of helping less powerful tenants, students can easily see the relevance of power imbalance and social justice issues in both areas. They may take this information and look for power imbalance in other areas, like Civil [and Criminal] Procedure … ¹¹³

In this way, instructors can encourage students to begin thinking like social justice lawyers, in foundational areas of which practitioners in the social justice space need to have a firm grasp. ¹¹⁴

Finally, law schools may consider measures such as the introduction of a built-in experiential course of the kind many universities in Australia and overseas currently offer on an elective basis, supporting students to develop practical lawyerly competencies while engaging in pro bono work. ¹¹⁵ In Australia, the University of Newcastle in New South Wales (NSW) offers a practical legal training (PLT) program (the LLB Practice Program and Juris Doctor Graduate Diploma of Legal Practice); ¹¹⁶ its clinic-focused professional program, pioneered in the 1990s, was one of the first of its kind. ¹¹⁷ Students enrolled in the program undertake an intensive clinical placement at the University of Newcastle Legal Centre, a CLC which runs morning and evening advice clinics in Newcastle’s central business district and whose casework spans discrimination, crime, tenancy, consumer credit, employment, family law and civil disputes. ¹¹⁸ The program is accredited by the NSW Legal Profession Admission Board, meaning that graduates of the program are eligible to be admitted to practise law on an accelerated basis, without having to undertake and pay for further study and/or PLT. ¹¹⁹ While not compulsory, the opportunity (available to all students) to complete their PLT (an essential requirement for admission as a lawyer), nested within their law degree, provides a strong incentive to enrol in the program.

These are just a few options for curricular reform. Different modes of incorporating social justice into the core curriculum will have different merits and demerits; ¹²⁰ the focal point is that institutional efforts to promote social justice lawyering need to be trained on the core curriculum. As Rice points out, core units like Administrative Law, Civil Procedure, Evidence, Corporations Law and Trusts comprise ‘the law that underpins the social injustices we fight, and that can be used to achieve the social justice we seek.’ ¹²¹ Each and every law student, but especially those eager to use the law as a tool for social change, deserves and stands to benefit from instruction that makes the social justice aspect explicit. ¹²² The core curriculum is the natural – and necessary – place for such instruction to occur.

Conclusion

To correct social justice drift, law schools and legal educators need take the lead. It is incumbent upon members of faculty, including unit coordinators and teachers, to furnish students with the knowledge, skillset and outlook necessary for them to carve a professional career out of representing and advocating for underrepresented clients and causes. That said, standard approaches to promoting social justice lawyering internally, through expanded curricular and extracurricular options, need to be rethought. As I have argued, best practice will involve mainstreaming social justice in the core curriculum, bringing it from the periphery to the centre of the law school experience. The benefits of core curricular reform include maximising reach to instil an awareness and appreciation of public interest work in the entire cohort, and not just in those students who are in a position to undertake voluntary (uncompensated) opportunities. To this end, law schools can also ensure that their policies for promoting social justice lawyering are, themselves, socially just.