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The “Employer’s Voice” in Australian Legal Education

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‘The Employer’s Voice’ Shaping Graduate Attributes:

In the early 1990s, Australian universities were placed under increasing pressure from ‘the state, industry and other agencies’ to produce graduates who possessed specific market-relevant skills.[i] By the mid-2000s universities had enshrined graduate attributes at the core of their teaching objectives.[ii] Now it is common to see graduate attributes as a key dot-pointed list on course outlines, handed to students at the start of their degrees. Often these attributes are used to justify the entire degree program, as if law would have no purpose, were it not for the graduate attributes the degree results in. This is of course an absurd perspective, but it is nonetheless implicit in the documentation. Certain academics have argued that graduate attributes make university more ‘relevant’ to society by helping graduates contribute to the larger economic goals (and GDP) of their respective countries.[iii] This is partially true, and shall be discussed in greater detail below. However, the primary objection here is that a focus on graduate attributes diminishes the independence of a law school’s internal curriculum. Law schools now listen to the legal profession when drafting changes to the curriculum, rather than coming up with their own ideas. This, more than anything else, bolsters the vocational nature of law school, at a time when the vocation itself is in a state of flux.

 

Graduate attributes are a list of key skills or criteria that a student should gain from studying a specific degree program. They are often broad or generic in nature, encompassing areas like ‘thinking skills… logical and analytical reasoning, problem solving [and] communication, teamwork skills’ and so on.[iv] In vocational degrees, and increasingly in law, they tend to focus more narrowly on occupational skills needed to gain entry into the profession. In this way, they are often linked to a student’s ‘employability’.[v]  They are also linked to the idea that universities should produce the kind of graduates that employers are looking for.[vi] At their most intrusive, graduate attributes are used to guide the conceptual understanding and direction of law schools, along with their internal assessment structure and curriculum.[vii] According to researchers who write in favour of graduate attributes, the ‘best’ law schools are those that align their assessments with their graduate attributes to produce the kind of student that narrowly suits the needs of the market.[viii] Education, when viewed under this framework, becomes outcome-oriented, rather than intrinsically rewarding.[ix]  Instead of focusing on developing well-rounded students, universities focus on facilitating market-driven demand.

 

Owen and Davis explicitly diagram a pyramid of how students should gain market-relevant skills at every stage of their development.[x] This visual depiction of students getting more ‘narrow’ over time is particularly apt, although unintentional on their part. It is important to remember that the more universities focus on vocational graduate attributes in particular, the less their degrees can be viewed as generalistic or holistic. The losses come in the form of well-rounded students, who become narrow-minded over time, because they are only taught the technical skills necessary to fulfil a single role in a single occupation. In this way, universities become specialized knowledge trainers, and each department in the university is ‘silo-d’ off from one another, decreasing the amount of cross-institutional education. Even from a purely market-centric perspective, this means that the students produced are unable to adequately shift between different market roles, or different occupations over time.

 

At a time when many students and academics are arguing for law schools to become more ‘generalist’ in nature, law schools are succumbing to the pressure to formulate purely vocational graduate attributes. Instead of defining their own, independent values, they are seeking guidance from major law firms and other third parties. It is important to consider how extensive this influence is and how this influence has affected the curriculum, in order to determine whether law schools remain relevantly independent.

 

In a broad 2003 Australian national ‘stocktake’ of legal education, the opinions of ‘employers of law graduates’ were considered important to survey, as was the ability of employers to ‘participate in the project’.[xiii] Of the 29 law schools surveyed, every single one ‘to varying degrees,’ considered the ‘views of the profession’ when designing their internal curriculum.[xiv] Another study co-authored by a current law dean qualifies that ‘law schools should [not] surrender control of the law school curriculum to the legal profession’.[xv] But then goes on to admit ‘it is important that law teachers are aware of the employers’ voice, particularly when contemplating the incorporation of ‘lawyering’ skills into the law school curriculum’.[xvi] The ‘employer’s voice’ is powerful and persistent. It tends to shift educational outcomes. Law schools are praised when using the employer’s voice to guide the formulation of new graduate attributes. Queensland University of Technology (QUT) was recently hailed as an ‘exemplar’ of best practice, in part because they utilised ‘feedback from employers and graduates’ in creating their new list of graduate attributes.[xvii] It is important to note here that the ‘employers voice’ referred to in these surveys often comes narrowly from the major and minor law firms, and therefore does not reflect the great diversity of graduate routes that law students actually take up upon graduation.

 

On the absurd end of the scale is a law school that admits:

We are in constant and close contact with the profession to ask what they require of our students. As the Head of the School, I, along with the Dean of the Faculty, visit all the large commercial law firms, their HR people and some partners, at least every second year and ask them what they think of our graduates and whether they’ve got any suggestions. And we also meet with them at lunches’.[xviii]

 

In a political context this would sound like corporate lobbying, and possibly result in corruption charges. Front pages would ring out that law schools are being bought out. Even in this context, it is worrying that the influence of the legal profession on legal education is so normalised that law schools can openly admit such heavy-handed influence occurs. The loss of autonomy, in terms of the way in which law schools no longer feel capable of defining their own internal curriculum absent of any external influences, is profoundly concerning. It is unclear how a university system, which in itself lacks autonomy and merely serves as an extension of the agenda of large, corporate law firms, can expect to produce autonomous, critically aware and open-minded law students.

 

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Broader Corporate Influence:

The reality is that the major law firms are currently dictating what goes on inside Australian law schools to a large extent, not only in terms of the curriculum and direction of graduate attributes but also in terms of student life more generally.

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Most Australian law schools have seen a proliferation of corporate-sponsored career fairs, parties, socials, networking events, sports, libraries and buildings, speaking events, mooting and other law school skills competitions, never mind long lists of clerkship presentations presented by the major firms themselves. One law dean recently admitted that their “university is dominated by publicity from the big law firms” and that their students feel like “failures” if they do not get a job at one of them.[xix] Students are confronted with endless advertising by the big firms, and some become “captivated by the glamour of corporate lawyering” as a result.[xx] Law is no longer viewed as a job, profession or calling, but as a lifestyle choice: a gatekeeper to weekly office sports, drinks, parties and pork belly canapés. Taken in by the message, students come to crave “the office with a spectacular view, original artworks, lavish entertainment and high salaries,” and this “overshadows [any possible] alternative career [pathways]”.[xxi] Due to this oversaturation of marketing, corporate law is often viewed as the only option for law students to enter into. In the US, one educator recently said that the big four: “law, medicine, finance and consulting… dominate careers fairs, not by word of mouth or reputation, but by monetary donation”.[xxii] The major law firms in Australia likewise out-pay anyone else in terms of sponsorship towards law schools. The more their branding appears in front of students, the more those same students will see corporate law as the only option for their future, and the only possible vision of success.

 

 

It remains unrecognised in the literature that the major law firms have a vested interest in capturing the eyes of all students, to the extent that they wish to acquire the cream of the crop at graduation. Given this vested interest, and the realities of the economy not allowing for 100% graduate employment, there is a clear discrepancy between the needs of employers and the needs of graduating students. The damage caused by encouraging all law students to pursue employment at the largest firms, when a large number of students will never work at such firms, is profound. While aspirationalism itself is not unethical, intentionally misleading a majority population to believe that their aspirations are attainable, when such a proposition is statistically impossible, is unethical.

 

What is ignored is the large underbelly of students, on some estimations the majority, who feel misled by the culture of ‘prestige’ and inevitability around the practice of law, fostered by the major firms and their PR departments. There are extensive online forum threads in Australia asking: “How to Improve Prospects for Law Grads,” where students and former students complain:the sooner the prestige wears off and the reality of law as compared to other professions sets in, the better.”[xxiii] Many students raise concern about the lack of knowledge available on alternative career paths while inside law schools, which remain dominated by advertising from the select few firms.[xxiv] Others raise concerns about the lack of demand for law graduates in the major firms, despite the excessive corporate advertising.[xxv] Nick Abrahams, partner of a Sydney law firm, jokes: “perhaps the answer is that rather than going to law school to become a lawyer, go to law school so you can open a law school”.[xxvi] Venting this frustration, a popular genre of law student confessionals has crossed the Pacific, and Australian law students have begun writing ranting online articles in a similar vein to their American cash-strapped debt-riddled counterparts. Marie Iskander, a final year law student, writes:

“Despite being reluctant about pursuing a clerkship, because I didn’t feel drawn towards private law, I was convinced by peers, older lawyer friends and, of course, HR from the big law firms that “this is the right path” and “what do you have to lose?”[xxvii]

 

The losses are real and significant. Many law students complain that they start law school with an interest in pursuing a social justice agenda, but then feel they have to “do their time” at the major firms.[xxviii] This is borne out in several empirical studies of the intentions of first year law students, shown to be more publicly motivated by social justice and morality to begin with, as compared to their intentions at graduation, shown to be more focused on business and corporate values.[xxix] Once they graduate, social-justice orientated students often get “swallowed up [by the big firms]… drawn in by the tempting income’.[xxx] They tend to feel stuck between a rock and a hard place.[xxxi] The loss of social-justice orientated students to law firms is often dismissed as having a net-neutral effect on the economy. This in itself shows how all-encompassing the vocational outlook of universities has become. The corporate seduction and media messaging used to encourage students to go against their desires to help others, or contribute to charity and society more broadly, is hardly indicative of a supposedly ‘prestigous’ or ‘honourable’ profession. Indeed, in many ways, encouraging students to forgo charitable or publicly interested pursuits is dishonorable, and should be called out for what it is. Once a week pro bono placements are not a supplement for becoming a public advocate. Law firms should not be rewarded for discouraging students from actually doing something useful in the world.

 

To a large extent the loss of autonomy on the part of the university curriculum has shifted to an equivalent loss of autonomy on the part of the student body. Many students feel that “they are living out a script that they didn’t choose. They feel that their dreams are being shaped by incentives that are coming to them out of thin air”.[xxxii]  The Chief Executive of the NSW Law Society talks starkly of the need to inform law students about “the state of the legal market” before they begin a law degree, but it is unclear how this can occur while students are receiving the never-ending onslaught of glossy pamphlets from the major firms.[xxxiii] A single man cannot stop a tsunami, however much he might shout at it to cease and desist.

 

The fact that the major law firms have other vested interests, in preventing graduates from being interested in other careers outside of law for instance, is likewise unrecognised in the literature. Several law firms have recently revealed open fears about the big accounting firms “hiring [the] heavy hitters, [the law graduates] with real credibility”.[xxxiv] These fears bespeak a greater fear: the loss of control over recent graduates. A common catchcry among law firms is that Australian law schools are producing “graduate[s] who are not committed to legal practice and who [will] leave after a few years,” generally, to other industries.[xxxv] Paradoxically, law firms demand “well-rounded” applicants.[xxxvi] Here, it must be asked whether a “well-rounded” candidate may well develop interests outside of law, by definition of being “well-rounded”, and therefore seek to leave legal employment at some point in their lives. Being “well-rounded” demands an intellectual expansion beyond the narrow confines of a single discipline, yet law firms are demanding a narrow specialization of graduates into “legal professionals” alone.

 

The effect of this trend on legal education, where the views of employers still predominate, results in universities becoming vasals for the major firms, unable to move beyond the narrow confines of vocationalisation, slaves to “graduate attributes” dictated by the firms themselves. It is difficult to see how “well-rounded” students can ever arise out of this system, unless they fight against the educational institution that they are a part of, to fight for a decent education, at odds with the one that they are expected to receive.[xxxvii]

 

Instead of encouraging law students to broaden their horizons while studying in law school, several Australian law deans have publicly suggested that law students should simply get diversity ‘from their other degree’.[xxxviii] In other words, they are passing the buck. One dean admits that there is a problem of diversity in graduating classes, but immediately goes on to say that students should “combine their law studies with a range of other degree programs. [So that] at the outset they can craft the sort of career options that they have in mind”.[xxxix] Another suggests that “a law degree… opens up many opportunities”.[xl] Another again suggests that law students “benefit from the intellectual diversity provided by a wide range of combined degrees which offer an interdisciplinary education to enhance their legal education”.[xli] Instead of making law a “generalist” degree of the kind that many students wish for it to be, deans are making it “generalist” by association – by the fact that students are involved in other, external degrees. This is a subtle way of not addressing the problem.

 

Despite the fact that law deans are advising students to be involved in other degrees, the vast majority of other advice to young law students revolves around narrowly gaining legal professional skills alone, to the detriment of gaining any well-roundedness. Carey and Adams, writing a book for prospective law students, suggests that new law students get involved in as many law extra-curriculars as possible.[xlii] They should join law reviews, legal centres, law student groups and the local bar.[xliii] In other words, law students should be “lawyering” twenty-four seven. The focus on law-only extra-curriculars is an explicit discouragement on lateral thinking. Yet the 24/7 demand has been justified routinely by the lack of new graduate positions at the major firms. In absence of demand in the economy, yet in the heart of a vocationalised system, students are pressured into stacking up as many extra-curricular activities relating to law as possible. Since law firms can choose any graduate that they wish upon graduation, the competition increases exponentially, to the extent that being good at law is no longer good enough. One must be good at law and a mooter, or a CLC volunteer or be involved in law student bodies or a review or, even more crucially, work in part-time legal practice throughout one’s studies. In this sense, law comes to dominate the public and private lives of the average law student, to the extent that they no longer can become “well-rounded,” even if they wanted to be. Even if they do not want to be vocationalised, the system will make damn sure that they are spending their entire lives working on their vocation.

 

Little is said to law students about alternative career paths while they are inside law school. Women Lawyer’s Association of NSW President Lee-May Saw recently said that: “many [law students] are choosing not to pursue a career in law but what’s concerning is graduates feel there is a lack of information about work opportunities”.[xliv] In a cynical reading, some suggest that universities in the neoliberal age have “strong incentives not to produce too many seekers and thinkers, too many poets, teachers, ministers, public-interested lawyers” and so on.[xlv] These graduates would decrease the amount of alumni funding available from students after graduation.[xlvi] I am not so cynical. But there is a clear incentive to funnel law students into the most highly paid professions available, i.e. the major firms, in order to maximize alumni contributions. At the least, there is a conflict of interest here. At the most, this ensures profit-seeking on the part of all parties: the student, the law firm and the university. Profit becomes the metric by which all actions should or can be judged, and every party turns their minds towards a vocational, market-centric ideology and outlook, lacking in any other meaning beyond money as the prime motivator in life.

 

This is an extract from my book: Legal Education, Privatization and the Market.

Buy it now in Paperback

Or on Kindle.

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@JoshKrook

 

Bibliography:

Chapter 1:

The Problem:

[i] Terry Hyland, ‘Vocationalism, Work and the Future of Higher Education’ (2001) 53 Journal of Vocational Education and Training 4, 677-678.

[ii] Bentley and Squelch (n, 5) 96.

[iii] Ibid.

[iv] Paul Hager and Susan Holland (eds.) Graduate Attributes, Learning and Employability (Springer Science & Business, 2007) 2-4.

[v] Ibid, 1-2.

[vi] Ibid.

[vii] Susanne Owen and Gary Davis, Law Graduate Attributes in Australia: Leadership and Collaborative Learning Within Communities of Practice (2010) 4 Journal of Learning Design 1, 18.

[viii] Ibid.

[ix]  Susanne Owen and Gary Davis, Law Graduate Attributes in Australia: Leadership and Collaborative Learning Within Communities of Practice (2010) 4 Journal of Learning Design 1, 18.

[x] Ibid, 20.

[xi] Ibid.

[xii] Ibid, 1-2.

[xiii] R Johnstone and S Vignaendra, ‘Learning outcomes and curriculum developments in law’ (2003) Department of Education, Science and Training, 10, 20.

[xiv] Ibid, 227.

[xv] Peden and Riley (n, 40) 89.

[xvi] Ibid..

[xvii] Sharon Christensen & Sally Kift, ‘Graduate Attributes and Legal Skills: Integration or Disintegration’ (2000) 11 Legal Education Review 2, 7.

[xviii] Johnstone and Vignaendra (n, 5) 231.

[xix] David Dixon, quoted in Nicola Berkovic, ‘Uni helps pupils think outside box’ (31 January 2014) The Australian <http://www.theaustralian.com.au/business/legal-affairs/uni-helps-pupils-think-outside-box/story-e6frg97x-1226814211915&gt;.

[xx] Margaret Thornton, Privatising the Public University (Routledge, 2012) 47.

[xxi] Ibid.

[xxii] William Deresiwicz, Excellent Sheep: The Miseducation of the American Elite and the Way to a Meaningful Life (Simon & Schuster, 2014) 71.

[xxiii] “anti23” – http://forums.whirlpool.net.au/forum-replies.cfm?t=2193169&p=4

[xxiv] http://forums.whirlpool.net.au/forum-replies.cfm?t=2193169&p=1;

[xxv] Neil McMahon, ‘Law of the Jungle: Lawyers Now an Endangered Species’ (October 11 2014) The Sydney Morning Herald <http://www.smh.com.au/national/newscustom/law-of-the-jungle-lawyers-now-an-endangered-species-20141011-114u91.html&gt;.

[xxvi] Ibid.

[xxvii] Marie Iskander, ‘The Ugly Truth About Being a Law Student’ (October 4 2013) <http://www.lawyersweekly.com.au/opinion/14765-The-ugly-truth-about-being-a-law-student&gt;.

[xxviii] Joshua Krook, ‘Clerking Mad’ (12 May 2014) Honi Soit <http://honisoit.com/2014/05/clerking-mad/&gt;.

[xxix] Gregory J Rathjen, ‘The Impact of Legal Education on the Beliefs, Attitudes and Values of Law Students’ (1977) 44 Tennessee Law Review 85; Howard S Erlanger and Douglas A Klegon, ‘Socialization Effects of Professional School: The Law School Experience and Student Orientations to Public Interest Concerns’ (1978) 13 Law & Society Review 1, 11; E. Gordon Gee and Donald W. Jackson, ‘Current Studies of Legal Education: Findings and Recommendations’ (1982) 32 Journal of Legal Education 4;

[xxx] Joshua Krook, above n 125.

[xxxi] Jeena Cho, ‘Quitting Someone Else’s Dream’ (July 13 2015) Above the Law <http://abovethelaw.com/2015/07/quitting-someone-elses-dream/&gt;.

[xxxii] William Deresiwicz, ‘Excellent Sheep: The Miseducation of the American Elite’ (17 November 2014) Family Action Network, YouTube <https://www.youtube.com/watch?t=595&v=mrOAkfKCSpQ&gt;

[xxxiii] Marianna Papadakis, ‘Over 60pc of law students want to practice law despite grim market’ (27 July 2015) <http://www.afr.com/business/legal/over-60pc-of-law-students-want-to-practice-law-despite-grim-market-20150727-gil580#&gt;

[xxxiv] Agnes King and Katie Walsh, ‘Big Four Accounting Firms Push Into Legal Services’ (22 July 2015) Australian Financial Review <http://www.afr.com/business/accounting/afr8acclawyers-vs-accountants-20150721-ghq715&gt;.

[xxxv] R Johnstone and S Vignaendra, ‘Learning outcomes and curriculum developments in law’ (2003) Department of Education, Science and Training <http://www.cald.asn.au/docs/autc_2003_johnstone-vignaendra.pdf&gt; 237.

[xxxvi] Ibid.

[xxxvii] (Excellent Sheep)

[xxxviii] Sarah Derrington, ‘Dean’s Welcome,’ TC Beirne School of Law <http://www.law.uq.edu.au/deans-welcome&gt;; Neil McMahon, ‘Future-Proof Your Law Degree’ (August 3 2015) The Sydney Morning Herald.

[xxxix] Neil McMahon, ‘Future-Proof Your Law Degree’ (August 3 2015) The Sydney Morning Herald.

[xl] Dean of Law at UTS, Lesley Hitchens, quoted in Samantha Woodhill, ‘No Need to Limit Law Student Numbers,’ (28 April 2015) Australasian Lawyer <http://www.australasianlawyer.com.au/news/no-need-to-limit-law-student-numbers-says-professor-199690.aspx?keyword=student&gt;

[xli] Sarah Derrington, ‘Dean’s Welcome,’ TC Beirne School of Law <http://www.law.uq.edu.au/deans-welcome&gt;.

[xlii] Christen Civiletto Carey and Kristen David Adams, The Practice of Law School: Getting in and Making the Most (ALM Publishing, 2013) 313-322.

[xliii] Ibid.

[xliv] Marianna Papadakis, ‘Over 60pc of law students want to practice law despite grim market’ (27 July 2015) <http://www.afr.com/business/legal/over-60pc-of-law-students-want-to-practice-law-despite-grim-market-20150727-gil580#&gt;

[xlv] William Deresiwicz, Excellent Sheep: The Miseducation of the American Elite and the Way to a Meaningful Life (Simon & Schuster, 2014) 71.

[xlvi] Ibid.

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