When we think of lawyering, we think of a versatile set of capacities. We think of lawyers as advisors, advocates, planners, negotiators and policy-makers. These functions require an impressive range of intellectual work:
- Identification, close reading and interpretation of legal texts;
- Deduction from principles articulated in legal texts;
- Development and interpretation of facts;
- Matching fact scenarios and legal principles;
- Evaluation and reconciliation of competing principles;
- Construction of narratives;
- Identification and formulation of goals;
- Development of strategies...
The list could continue.
Yet, most of legal education focuses on only the first of these kinds of intellectual work. In short, the range of intellectual capacities and activities generally valued and developed in law schools is narrower than the range needed to do the work of lawyers. Moreover, the range of capacities valued as the determinants of success in this prestigious profession is narrower than the range needed to do the work of lawyers.
Workways exists to identify, understand, value and learn to teach the neglected capacities that are crucial to excellence and responsibility in the practice and administration of law.
Workways is a collaboration of law professors and social scientists. The law professors are struggling to broaden their sights in the training of lawyers and the study of law. They have enlisted the advice and cooperation of social scientists who are struggling to understand, from three different perspectives, the varieties of intellectual work and the ways in which kinds of intellectual work come to be valued and embraced, or feared and neglected.
The perspectives and conclusions of the three groups of social scientists are described in the next section. The work of these scientists to date has provided the insights and the theoretical base from which Workways is evolving. Future work in their disciplines will, we hope, use Workways as both laboratory and working group for elucidation, through the study of law and lawyering, of the ways in which socially valued work is performed.
Three Perspectives on the Intellectual Work of Lawyers
Multiple intelligences. Historically, much of the scholarship on intelligence has focused generally on questions of measurement and particularly on the concept of an intelligence quotient (IQ) and uses of the IQ test. Though the IQ test is easily used, its theoretical bases are weak, and for many generations, scholars have thought it fair to define IQ simply as “what intelligence tests test” (Resnick, 1976). Recent research suggests that, in fact, intelligence tests test only a few of our cognitive capacities.
Gardner’s Theory of Multiple Intelligences (1983), for example, delineates seven intelligences: logical-mathematical, linguistic, spatial, kinesthetic, musical, interpersonal, and intrapersonal. Citing empirical research on child development, brain damage, and the capacities of individuals who demonstrate extreme skill or deficiency, Gardner argues that everyone has innate capacity in each of these areas and, given the opportunity, can develop in each. Child development and social psychology researchers also distinguish among diverse cognitive capacities. Research on children’s’ concepts of number and perspective-taking and on their ability to differentiate animate from inanimate objects suggests that there are separate social and nonsocial cognitive systems (Gelman, 1978; Gelman and Spelke, 1981; Glick, 1978). Social psychologists have also distinguished social from “academic” or logical intelligences (Ford, 1982; Ford and Tisak, 1983) and argue that measures of logical or academic intelligence do not adequately predict professional or school success because they fail to consider the effects of social or personal intelligence (Neisser, 1976; Sternberg and Wagner, 1989).
Recent work in a variety of disciplines also suggests the importance of narrative as an innate cognitive capacity. Developmental and cognitive psychologists argue that humans are genetically and socially disposed to make sense of their experiences by constructing narratives (Bruner, 1990; Polkinghorne, 1988, 1991, Michotte 1946, 1963). Social theorists identify narrative modes of reasoning and argumentation (Lyotard, 1984; Volosinov, 1973) Similarly, many linguists argue that individuals structure and take perspective on their experiences by formulating narratives. (Gee, 1985; Labov, 1972; Peterson and McCabe, 1983).
Logical-mathematical, linguistic, interpersonal, intrapersonal and narrative intelligence are equally relevant to successful lawyering.
Modes of Reasoning, Problem-Solving and Conflict Resolution. Individuals approach intellectual work in a variety of ways. Sternberg (1988) argues that individuals with similar levels of intelligence may be more or less practiced or successful at accomplishing tasks which lend themselves to particular ways of working. With his model of mental self-government, he articulates numerous approaches to intellectual work, including preferences for abstract or concrete problems, for defining, executing, or evaluating solutions, and for working independently or interpersonally.
The most developed analyses of modes of reasoning have focused on moral reasoning. In the late 1970’s, Norma Haan distinguished “formal” and “interpersonal” moral reasoning. The former mode, most thoroughly analyzed by Kohlberg (Blatt & Kohlberg, 1975; Kohlberg, 1984), features “logically correct application of...substantive, imperativist rules.” Interpersonal moral reasoning features “dialogues...[conducted] with the intents of achieving new or maintaining old moral balances.” (Haan, 1978) Gilligan (1982) has identified a similar set of approaches to moral reasoning: a justice-orientation focusing on rules and rights, and a care-orientation focusing on relationships and responsibility. Discourse analysis suggests that individuals and groups use language in ways that correspond to the formal and interpersonal reasoning modalities. Linguists studying discourse and gender note that some people (more typically, men) tend to neglect, while others (more typically, women) tend to emphasize the strengthening of interpersonal connection as a goal of conversation (Tannen, 1990).
Scholars in the fields of law and business have speculated that policy analyses and ethical standards within the two professions are impoverished because both emphasize rule-based reasoning and neglect relational reasoning (Bender, 1988; Davis, 1991; Finley, 1989; Frug, 1985; Gordon, 1987; Paine, 1991, 1994). These scholars argue that attention to both rules and relationships seems optimal in the pursuit of just policies and ethical practices. We agree. In addition, we believe that legal reasoning and problem-solving require the use of formal and interpersonal cognitive modes that are analogous to the modes of moral reasoning analyzed by Kohlberg, Haan and Gilligan. Moreover, we believe that facility in both modes is the optimum condition from which to practice law. Finally, we suspect that this facility can be developed through thoughtful analyses of legal reasoning processes and self-conscious development of a variety of approaches to intellectual work.
Self-Concept, Stress and Learning Some researchers have gone beyond the identification of varieties of intellectual work to examine the ways in which an individual’s identification with particular ways of working can affect that individual’s ability to perform in roles that seem to call for work ways of working that are familiar or feared.
Attribution theory suggests that, generally, when individuals’ expectations are fulfilled, they attribute their performance to stable and internal causes, such as ability; however, when individuals’ expectations aren’t met, they attribute their performance to unstable causes such as luck or lack of effort (Deaux, 1984). Motivation research suggests that individuals who, as a result of a negative self-concept, typically expect failure will attribute any failure they experience to lack of ability. Since they associate failure and lack of ability, they feel helpless to avoid failure in the future. Over time, then, the tendency to expect failure and to attribute it to innate causes feeds upon itself, producing a condition of learned helplessness (Deiner and Dweck, 1978; Dweck and Reppucci, 1973). By contrast, individuals who have a more positive self-concept tend to attribute their failures to lack of effort or to some other external—and remediable—circumstance, rather than to lack of ability. As a result, they are motivated to persist in their efforts despite failure, for external circumstances can always be altered.
Attribution and motivation research also suggests that expectations and attributions can be influenced by stereotypes. For example, women generally have low expectations when completing “male” tasks; however, men and women have equally high expectations when completing “female tasks” (Deaux, 1984). Such differences in expectations may make women—and other people who are thought stereotypically to perform certain tasks poorly—more vulnerable to negative self-concept, learned helplessness, and poor performance in the face of difficulty.
A related strand of research suggests that children’s theories of intelligence affect their expectations, attributions, and performance (Dweck and Bempechat, 1983). Children who believe that intelligence can increase through learning tend to enter achievement contexts with learning goals and to be mastery-oriented whether they have high or low expectations of success. Children who think of intelligence as a fixed entity enter achievement contexts with performance goals; they want to show (or avoid showing) their intelligence. In situations in which they have high expectations for success and feel they can obtain a favorable competence judgment, they demonstrate mastery- orientations. However, in situations in which they have low expectations for success and want to avoid a negative judgment, they become helpless. Notably, theories of intelligence are context specific and can be influenced by aspects of the situation, including the theory of the teacher.
Steele’s work on stereotype vulnerability grows out of the notion that expectations may have drastic effects on performance. In a series of creative experimental studies, Steele and his colleagues have shown that test performance is negatively affected whenever subjects are aware that their ability is being gauged in a domain in which members of the subjects’ group are generally thought to perform poorly. For example, when equally able male and female students take a difficult math test, the female students perform significantly less well than the male students. When equally able male and female students take a difficult English test, they perform equally. Moreover, when equally able male and female students take a difficult math test after having been told that it is a test on which men and woman perform equally, the male and female students perform equally (the male students performing somewhat less well and the female students performing better than in the unprimed condition). Similarly, black students perform less well than white students on a verbal test when told it is a measure of ability, but perform equally well when told performance is unrelated to ability. Steele hypothesizes that awareness of a stereotype that predicts failure for a subject creates in that subject a level of anxiety that interferes with performance. He calls this condition of anxiety “stereotype vulnerability.” Steele finds that students who are stereotype vulnerable tend to disengage from academic work in order to avoid the ego assaults that are endemic to cycles of learned helplessness.
We hypothesize that some students’ performance at law school is negatively affected by their own and others’ preconceptions. Our admissions policies assure that all of our students are capable of functioning at extremely high levels across the range of lawyering skills. Yet, female students and students of color may have low expectations of success—at least in certain domains of intellectual activity—and may be stereotype-vulnerable in some or all of their classes. On the other hand, women and people of color are stereotypically strong in cognitive domains that legal education tends most to neglect: interpersonal, intrapersonal and narrative intelligence and interactive reasoning. Male and majority group students may be stereotype vulnerable with respect to these neglected domains. Indeed, we suspect that this stereotype vulnerability may account for the neglect of interpersonal, intrapersonal, narrative and interactive cognitive processes in law school education. We hypothesize that stereotype vulnerability will be reduced for all students by work that draws upon the full range of capacities relevant to good lawyering. Few if any law students will be stereotype vulnerable with respect to all of these intellectual domains. Successful experiences with the mixed use of relevant intellectual capacities to solve legal problems should serve to reduce the anxiety. The confidence that comes from believing that one is, and is perceived as being, competent in certain relevant domains should facilitate engagement in the anxiety-inducing domains, allowing development of skills as to which a student has tended to be disengaged.
Our curricular project rests on three hypotheses. The first is that if law schools are to produce graduates capable of professional excellence, they must be systematic and self-conscious about the development of a wide spectrum of relevant logical, interpretive, narrative, judgmental and interactive cognitive processes. We propose to design and test curricular means to that end. The beauty of our project is that, in light of our second hypothesis (described below), systematic and self-conscious development of the full spectrum of cognitive skills relevant to lawyering can be expected to have the independent and highly beneficial effect of facilitating the professional development of the large number of students—many, but by no means all of whom are women and/or members of other subordinated groups—who are alienated and scarred by the law school experience.
There is mounting evidence that the narrowness of law school curricula frustrates and alienates many students (Guinier et al., 1994; Levin, 1995). Some of these students do well in law school (Levin, 1995). Others seem, as a result of alienation, to do less well than they might. Those who belong to groups that are stereotypically associated with intellectual capacities less valued in law school curricula may experience “stereotype vulnerability”—a disabling anxiety triggered by being called upon to perform tasks one is expected, as a result of group membership, to perform poorly (Steele). Indeed, law schools’ failure to engage students across the spectrum of their intellectual interests, cognitive capacities and social concerns has been identified as a significant explanation of gender disparities in grades, extracurricular honors, and professional opportunities for women students (Guinier et al., 1994).
Our second hypothesis is that failure fully to address matters of moral and policy judgment, human and social interaction and narrative and cultural construction in law school curricula is a principal cause of student disengagement and an exacerbating factor in the dynamic created by stereotype vulnerability. We believe that if law schools present lawyering as something that implicates the full variety of relevant intellectual capacities, students whose concerns, interests and/or practiced ways of working have been heretofore neglected will feel less alienated, perform better across the range of cognitive activities, and develop a more positive sense of professional role. We also believe that stereotype vulnerability will be less acute if students are explicitly asked to perform an integrated variety of intellectual tasks in their law school courses.
With the guidance and advice of Howard Gardner, Carol Gilligan and Claude Steele, the leading theorists in the fields from which we have drawn our inspiration and intellectual models, Workways will assemble a group of researchers who will join colleagues in the law school to do three kinds of interrelated work: 1) analysis of real and simulated lawyering interactions for purposes of isolating and naming the varieties of intelligence and reasoning styles that are at play; 2) design of curricular innovations that will highlight and develop neglected intelligences and reasoning styles; and 3) testing of the effects of the curricular innovations.
Accomplishments to Date
Innovations in the Lawyering Program
NYU has made a commitment to pioneering pedagogic innovation, to developing multi-disciplinary understandings of legal praxis, and to understanding and controlling the causes of alienation and disengagement that have so plagued other law schools. The Lawyering Program provides an ideal foundation from which to realize our curricular goals. In their first year of study, all NYU law students are required to participate in Lawyering, a series of closely critiqued, videotaped simulations involving fact-gathering, counseling, negotiation, informal advocacy and formal advocacy. As presently configured, Lawyering reflects premises that are compatible with, and sometimes identical to, the assumptions underlying this project. The design of Lawyering obviously assumes that intelligences/cognitive capacities are multiple and best developed by teaching techniques that engage students in a variety of ways. The existing exercises encourage each student to use a wide array of cognitive capacities and styles of reasoning. Engagement is achieved in diverse modes of communication. Lawyering has additional features that seem well suited to the achievement of our goals. It utilizes experiential learning in simulated lawyering contexts, a format ideally suited to developing and demonstrating the range of abilities necessary for effective practice. Finally, Lawyering structures opportunities for self-reflection and reinforcement of learning, encouraging the student to relate learning from initial exercises to different contexts in subsequent exercises.
In the pilot phase of our work, we have begun to test modifications in the Lawyering Program that are designed to focus students on a balanced range of intellectual work, taking pains to value traditionally undervalued capacities, to work toward their development, to emphasize the benefits of coordinating diverse ways of working, and to encourage intellectual versatility. The watchwords of our efforts are naming, balance, peer learning and community reinforcement.
To promote intellectual versatility, we work with students to name the many forms of intellectual work that legal problem-solving demands. This assists the student in identifying styles that s/he uses out of comfort, believing that s/he is (or can be) equally at ease operating in other styles, working toward an expanded repertoire, and appreciating the contributions and interactions of various styles. Naming is the first step in bringing discipline to the process of developing intellectual capacities about which we have been inarticulate and neglectful.
We have said that legal education generally tends to draw students’ focus to certain cognitive capacities and away from others. This is true to some extent even in the experiential contexts of the Lawyering course. To the extent that there is a perceived imbalance of required capacities, students may tend to disengage from the exercise as a whole (if their preferred ways of working seem to be overshadowed) or (if their preferred ways of working seem to be highlighted) to overlook the importance of integrating highlighted modes with less preferred modes of working. When an imbalance of this kind is perceived, we work with students—individually or collectively, as indicated—to call attention to the neglected modes of working.
We encourage differently focused students to pool their efforts and learn from one another. We assume that naming and valuing a fuller range of lawyering capabilities will encourage students to appreciate their classmates as models from whom to learn. Nonetheless, we take additional steps to facilitate collaboration and peer teaching. These measures include pointing out in classes and critiques that different students made different kinds of progress in resolving a problem; using individual student performances as positive illustrations of neglected modes of working; and proposing that students collaborate or combine methods demonstrated by different students.
Finally, we make efforts to involve teachers of other courses in the process of demonstrating the multifaceted quality of legal problem-solving. We encourage faculty teaching doctrinal courses to give consistent attention to context, narrative, moral reasoning, and interactive process.
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