Because 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, students do not learn the full spectrum of intellectual activities necessary to professional excellence. The relatively narrow range of intellectual capacities and activities valued and developed in law schools also does not engage students as fully as possible. We hypothesize that if law schools are to produce graduates capable of professional excellence, they must be systematic and self-conscious about the development of a broad spectrum of relevant cognitive processes. Furthermore, if law schools presented lawyering as something that implicates a variety of relevant intellectual capacities, students would engage more fully in the development of their capacities. In particular, 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. As we at NYU have begun to articulate, analyze, and teach the neglected capacities, we have found it useful to draw upon the work of psychologists whose efforts to explore a broader spectrum of human capacity precede and parallel our own.
Early work on intelligence
Historically, much of the work on intelligence has focused on measurement and has relied on statistical analyses. Though psychometric work on intelligence has had wide applicability, its theoretical bases are weak and its theoretical implications limited. Working within a psychometric framework, researchers could do little more than define intelligence as "what intelligence tests test" (Boring, 1923).
In the early 20th century, the beginning of the psychometric boom, Charles Spearman (1904, 1923, 1927) developed factor analysis, a statistical technique used to quantify a phenomenon known as the positive manifold-- the tendency of individuals to perform similarly across tasks. Using correlations among outcomes, Spearman calculated a single factor responsible for intelligent performance across tasks and called it "g," or general intelligence. Spearman argued that "g" represents a kind of mental power which is the basis of individual intelligence.
However, because statisticians and researchers using factor analysis make subjective judgments about the number of factors to "count," the same data and statistical procedures used by Spearman can be used to make the point that intelligence is comprised of multiple factors. Shortly after Spearman published his first interpretation of g, Thomson (1916) argued logically that "g" might refer to the average overlap of the multiple capacities tapped by various tasks. Working from this assumption, Thurstone (1938, 1947) developed multiple factor analysis and used it to isolate seven factors of intelligence: spatial visualization, perceptual speed, numerical fluency, word fluency, verbal comprehension, associative memory, and reasoning.
The debate between those who believe that "g" represents one or multiple factors of intelligence has continued throughout the 20th century. Jensen (1988), for example, having found that IQ is somewhat correlated with the time it takes an individual to press a button in front of the one of two bulbs which lights, argues that "g" represents neural efficiency or speed of information processing. Horn and Cattell (1966), on the other hand, have used multiple factor analysis to develop a hierarchical model of intelligence in which "g" represents two higher order factors: crystallized intelligence, or school and cultural knowledge, and fluid intelligence, or the ability to learn in novel situations.
Despite the volume of psychometric work on intelligence, such approaches cannot resolve the debate between theories which define intelligence as one or multiple capacities. More recently, work on intelligence has begun to incorporate evidence from a wider range of sources and to explore the breadth of human capacity. As we at NYU explore the range of intellectual capacities implicated by lawyering, it is to these theories that we have turned for guidance. In particular, we have found Gardner's theory of Multiple Intelligences and scholarship on narrative relevant to our work.
Gardner's Theory of Multiple Intelligences
Citing a wide range of psychological research, Gardner (1983) delineates seven human intelligences: logical-mathematical, linguistic, spatial, kinesthetic, musical, interpersonal, and intrapersonal. Research on child development and across cultures suggests that everyone has potential in each of these areas. Research on brain injury and the capacities of individuals who demonstrate extreme skill or deficiency suggests that one's potential in each is unrelated to one's potential in the others. Thus, Gardner concludes, these seven intelligences are innate and independent. Though independent, most tasks, including lawyering, require the use of multiple intelligences. Gardner writes:
Even within a particular profession like the law, one finds individuals with different blends of strength in such areas as language, logic and interpersonal understanding. (1993, 71)
In addition, Gardner argues that there are no general capacities, such as memory, judgment, or strategic thinking, which might explain strong performances across intelligences. For example, according to Gardner, the ability to remember music is unrelated to the ability to remember how to get from one place to another. Gardner also notes that intelligence refers to potential: without culturally and socially relevant opportunities, potential remains undeveloped.
Accepting that individuals have potential in a variety of intelligences has significant implications for education. To meet the needs of students with diverse intelligence profiles, teachers must provide opportunities for students to work in a variety of ways. Instruction in accounting, for example, might be approached mathematically, linguistically, and kinesthetically, by providing students with numerical examples, linguistic explanation, and opportunities to enact solutions. Working from their strengths, students can then make inroads in the areas in which they are weaker. Students who are more skilled interpersonally than mathematically can learn accounting principles through their exemplification in social contexts. In addition, given opportunities to use their strengths and to work in a variety of areas, students engage more fully in the educational process.
Gardner is particularly interested in the implications of his theory for assessment. He warns that when one or two intelligences reflect the standards of competence, "it is virtually inevitable that most students will end up feeling incompetent," (1993, 74). Furthermore, efforts to assess capacities in a range of areas can be derailed by tools which pose problems in one or two. In the U.S., where linguistic and logical-mathematical intelligences are highly valued, other intelligences are often assessed linguistically and logically. Gardner argues that "intelligence-fair" assessment tools do not assess through the lenses of one or two valued intelligences; they assess learning in context, use interesting and motivating materials, are simple, naturally occurring, and developmentally sensitive, and their application benefits students.
Recent work in a variety of disciplines also suggests the importance of narrative as an innate cognitive capacity. Cognitive and developmental psychologists argue that humans make sense of events by constructing narratives (Bruner, 1990; Miller, et al. 1990, 1992; Polkinghorne, 1988, 1991). Reinterpreting an experiment on perception, Michotte (1946/63) notes that participants who were shown geometric shapes moving through space constructed narratives to explain what they had seen. Plots enabled the participants to make sense of otherwise random events.
Similarly, many linguists argue that individuals tell narratives to make sense of their experiences (Gee, 1985; Labov and Waletzky, 1966; Labov, 1972; Peterson and McCabe, 1983). As individuals tell stories they take perspective on events, incorporating meaning into the structure and expression of the narrative. Narratives tell what happened as well as what was important and why. Studies of language development suggest that children are genetically and socially disposed to learn the elements of narration early on, so that they can then narrate and make sense of their daily lives (Bruner and Lucariello, 1989). Social theorists have also identified narrative modes of reasoning and argumentation (Lyotard, 1984; Volosinov, 1973).
In addition to the theories described above which have already influenced our work, we are intrigued by the implications of scholarship on strategic and metacognitive intelligences, as well as practical and social intelligences.
Strategic and metacognitive intelligences
Some psychologists working in the field of education argue that strategic and metacognitive thinking underlie proficient performance. For example, when coached to use strategies such as reviewing and rehearsing, children who are mentally retarded have performed nearly as well as typical children on simple memory tasks (Baron, 1978). Additional research suggests that students are more likely to use and transfer strategies to new contexts when they are also coached to monitor their performance (Schoenfeld, 1979, 1980, 1982, 1985; Belmont, Butterfield, & Ferretti; 1982). For example, Palinscar and Brown (1984, 1988) have improved children's reading performance by teaching them the strategies of skilled readers. The authors, and teachers trained in the method, taught sixth, seventh, and eighth grade students to summarize, question, clarify, and predict while reading. In part, these strategies enable readers to monitor their comprehension so that they can slow down and backtrack as necessary. Students who participated in the program learned to perform these processes, read with greater comprehension in all of their classes, and were able to transfer their skills to new tasks.
Given that individuals use strategic and metacognitive skills across a variety of tasks and domains, one could argue that "g" represents individuals' strategic and metacognitive capacities. Perkins has even suggested that Jensen's research on choice response time, which was designed to minimize the effects of knowledge on the assessment of intelligence, might favor individuals who strategically monitor their readiness and keep themselves free of mental distractions between trials (Perkins, 1995, 52).
Research on problem-solving in everyday contexts has shown that individuals can perform cognitive processes in some contexts but not in others. Such findings suggest that cognition is contextualized or implicitly affected by aspects of the context in which it occurs. Ethnographic studies of everyday problem-solving suggest that physical objects and tools, immediate social interactions, and the broader social and cultural context have significant effects on cognition.
For example, in her study of a milk-processing plant, Scribner (1986) learned that warehouse workers filled orders in different ways depending on the units of milk immediately accessible in the warehouse. For example, in one situation an employee might add units from one case to another, while in another situation the same employee might subtract units from a case. Scribner discovered that the warehouse workers she researched consistently used the available stock to fill orders quickly and with minimal effort. Scribner also noted that while experienced workers used different processes to fill orders as efficiently as possible, white-collar employees at the plant and local high school students used the same, often inefficient processes to fill every order. Even when novices filled orders as efficiently as possible, they did so with less efficiency than experienced employees. While novices counted, added, and subtracted units, experienced employees used visual information to by-pass counting and arithmetic.
Similarly, in his research on the cognitive processes of expert and novice chess players, de Groot (1965) found that given only a few seconds to look, expert players were far better than novices at remembering the positions of pieces on the board. However, experts' ability to remember the board was directly linked to their knowledge of the game. When attempting to remember pieces that were arranged randomly, experts had no advantage. De Groot found that knowledge of the game enabled experts to remember the arrangement of many pieces at once. Rather than remembering the positions of many individual pieces, the experts were remembering the arrangement of far fewer sets of pieces. Expert players were better able to remember not because they had better memories, but because their knowledge of the game allowed them to use their memories more effectively.
In their research on expert and novice race-track handicappers, Ceci and Liker (1986) also found that experts use more sophisticated cognitive processes than novices. They also discovered that there was no correlation between the expertise of the handicappers and their IQs. Individuals with lower IQs were able to handicap horses with more sophistication than individuals with higher IQs, despite the fact that the cognitive processes used by expert handicappers were the same abstract thinking skills assessed by IQ tests. The handicappers were able to apply these skills in the domain of their expertise, but they were not able to apply the same skills to the academic tasks on the IQ test.
The research on everyday cognition suggests that IQ correlates with academic performance and not with real-world, social or professional success because cognition is contextualized. Individuals perform similarly on academic tasks and IQ tests because of similarities in the context of performance. In general academic tasks and IQ tests are: formulated by other people; have little or no intrinsic interest; provide all necessary information for their solution; and, are decontextualized from one's ordinary experience (Neisser, 1976). In addition, they are usually well defined, have one correct answer and one correct mode of solution (Wagner and Sternberg,1986). By contrast, practical or everyday tasks often require individuals to formulate their own problems, identify relevant data, choose from among a number of problem-solving approaches, and come up with a solution which is appropriate given their long and short-range goals and the characteristics of the situation. Such situations are often emotional and motivating.
Some psychologists argue that measures of logical or academic intelligence do not adequately predict professional or school success because they fail to consider social or personal intelligence (Neisser, 1976; Wagner and Sternberg, 1985, 1986). In their studies of the differences between excellent and average business managers and academic psychologists, Wagner and Sternberg asked participants to respond to situations they would typically encounter in their professional lives. They found that in both fields the expert professionals were better able to manage themselves, others, and their careers and that tacit knowledge in these domains was not correlated with measures of verbal aptitude.
Given these findings, Sternberg and his colleagues developed the Practical Intelligence for School program (Sternberg, Okagaki, and Jackson, 1990). Middle-school students participating in the program are taught skills regarding management of self, others, and tasks. Among the self-management skills, students are taught to think strategically about their strengths and weaknesses as learners and to monitor their learning. With regard to others, students are taught to empathize, cooperate, and communicate. The section of the program dealing the management of tasks includes instruction on following directions, answering questions, using time effectively, asking for help, and strategizing about problem-solving. Sternberg and his colleagues have found that students who participate in the program outperform students who do not on assessments of study habits, study skills, and attitudes. Anecdotal evidence also suggests that these students enjoy school more and learn more.
Child development researchers also distinguish social from other cognitive capacities. Though Piaget's foundational research on child development described the development of logical-mathematical reasoning, subsequent research has addressed the development of other capacities, including those in the social realm. Selman's theory of social perspective-taking, for example, describes the development of individuals' capacity to understand others. According to Selman, children cannot initially differentiate physical and psychological aspects of persons. They distinguish themselves from others physically and do not realize that others may have different perspectives from themselves. Over time children develop the capacity to differentiate the physical from the psychological. They understand that others have their own perspectives, but initially they believe that others' perspectives are apparent. With a second-person perspective children understand that people have inner and apparent selves. And with a third-person perspective individuals can view themselves and others within the context of larger systems. Finally, individuals develop the sense that there are aspects of themselves that even they don't know. Selman's theory of social development has provided a foundation for Kohlberg's theory of moral development and for pair-therapy, an intervention for children with social problems.
Consistent with the current literature on intelligence, we believe that our students have a broad range of capacities, only some of which are valued and consciously developed through legal education. We hypothesize that conscious development of a broader range of capacities would better prepare our students for the complexities of lawyering as well as engage them more effectively in the development of their capacities. Students who are alienated by the narrow range of capacities currently valued and developed will be drawn in by opportunities to learn and work in a variety of ways. Students who are more skilled or comfortable using less valued intelligences will have opportunities to do well and feel competent.
Furthermore, we believe that by naming the many intellectual capacities implicated by lawyering, including those currently valued and developed, as well as those which are not, we can support students' development of diverse capacities. Faculty can use such names to identify and value different ways of working. Students can use names to identify their strengths and weaknesses and to monitor and think strategically about their use of different ways of working. By working with their peers, students can experience the value of diverse approaches; they can learn to integrate multiple ways of working. Simulations provide students with opportunities to develop their skills in contexts similar to those in which they will ultimately work. Critiques of simulations also provide opportunities to name different ways of working, to witness their value, and to practice metacognitive and strategic thinking. Finally, by changing the discourse in our classrooms, making room for a greater range of interest, concern, and approach, we expect to engage students more fully in their development as versatile professionals.
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