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Transforming legal education through emotions

Published online by Cambridge University Press:  31 July 2018

Emma Jones
Emma Jones*
Affiliation:
School of Law, The Open University, Milton Keynes, UK
*
*Author email: e.j.jones@open.ac.uk
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Abstract

Law has traditionally viewed emotions as the enemies of rationality and reason, irrational and potentially dangerous forces which must be suppressed or disregarded. This separation and enmity has been mirrored within undergraduate legal education in England and Wales, with its rigid focus on seemingly impartial and objective analysis and notions such as the ubiquitous ‘thinking like a lawyer’. This paper will argue that attempts to disregard or suppress emotions within the law school are both misguided and destined to fail. It will explore the integral part emotions play within effective legal learning, the development of legal skills, and the well-being of both law students and legal academics. It will also consider how developments in legal scholarship and the evolving climate of higher education generally offer some potential, but also pitfalls, for the future acknowledgment and incorporation of emotions within undergraduate legal education in England and Wales. Bodies of literature relating to not only legal education, but also education generally, psychology and philosophy will be drawn on to demonstrate that emotions have a potentially transformative power within legal education, requiring them to be acknowledged and utilised within a more holistic, integrated form of law degree.

Keywords

legal educationemotionwell-being
Type
Research Article
Information
Legal Studies , Volume 38 , Issue 3 , September 2018 , pp. 450 - 479
Copyright
Copyright © The Society of Legal Scholars 2018 

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Footnotes

†

The author would like to thank Professor Fiona Cownie and Professor Anthony Bradney of Keele University, and the anonymous reviewers, for their comments on earlier drafts.

References

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2 The terminology used within discourse on emotions is complex and contested. In this paper, the term ‘emotions’ will be used to encapsulate the whole range of emotions that may be experienced within legal education, in accordance with one of its common usages in relevant literature (see for example Goldie, P The Emotions. A Philosophical Exploration (Oxford, Clarendon Press, 2002)CrossRefGoogle Scholar. The term ‘emotion’ will be used to refer to a specific affective state (for example, anger or happiness) appropriate to the context of its usage: in other words, as denoting a particular ‘emotional episode’ (Oatley, K, Keltner, D and Jenkins, JM Understanding Emotions (London: Blackwell Publishing, 2nd edn, 2006) p 29Google Scholar). The term ‘emotional’ will be used to refer to the presence or application of emotion within a specific situation or experience.

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24 See for example Sanders, A ‘Poor thinking, poor outcome? The future of the law degree after the legal education and training review and the case for socio-legalism’ in Sommerlad, H et al. (eds) The Futures of Legal Education and the Legal Profession (Oxford: Hart, 2015)Google Scholar; Hutchinson and Duncan, above n 13; Bartie, above n 15; Cownie, F Legal Academics Culture and Identities (Oxford: Hart, 2004)Google Scholar; Vick, DW ‘Interdisciplinarity and the discipline of law’ (2004) 31 Journal of Law and Society 163CrossRefGoogle Scholar; Bradney, above n 23.

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27 Given this perception, it is perhaps unsurprising that there is little writing discussing emotions from a doctrinalist viewpoint. However, there is some literature on the impact of legal education on emotions more generally, which implicitly at least implicates the doctrinal tradition. This includes the classic polemic: Kennedy, D ‘Legal education and the reproduction of hierarchy’ (1982) 32 Journal of Legal Education 591Google Scholar; P Goodrich ‘Of Blackstone's tower: metaphors of distance and histories of the English law school’ in Birks, above n 13; Stanley, C ‘Training for the hierarchy? Reflections on the British experience of legal education’ (1998) 22 The Law Teacher 78CrossRefGoogle Scholar.

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31 It has been suggested that the term ‘liberal education’ can mean ‘all things to all men’ (Rothblatt, S Tradition and Change in English Legal Education. An Essay in History and Culture (London: Faber and Faber, 1976) p 195Google Scholar). See also Guth and Ashford, above n 13, at 6; Bradney, above n 13, at pp 31–32; Clark, SJ ‘Law school as liberal education’ (2013) 63 Journal of Legal Education 235Google Scholar; Green, K and Lim, H ‘A lib-lib pact: silences in legal education’ (1987) 21 The Law Teacher 256 at 256CrossRefGoogle Scholar.

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34 Bradney (1995), above n 32; see also Burridge and Webb, above n 32 and Burridge, R and Webb, J ‘The values of common law legal education reprised’ (2008) 42 The Law Teacher 263 at 264CrossRefGoogle Scholar in relation to constructivist and experiential forms of learning.

35 An example of this approach is given in the report of the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) which states that a law degree ‘should stand as an independent legal education in the discipline of law, not tied to any specific vocation’; see also Jakab, A ‘Dilemmas of legal education: a comparative overview’ (2007) 57 Journal of Legal Education 253 at 253Google Scholar; Bradney, above n 13, p 43; Mosesson, above n 33, at 20; Webb, above n 25; Arthurs, HW ‘Half a league onward: the report of the lord chancellor's advisory committee on legal education and conduct’ (1997) 31 The Law Teacher 1CrossRefGoogle Scholar.

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37 Burridge and Webb, above n 34, at 264. The distinction between the two phrases does not appear to have been explored in detail in the literature on liberal legal education.

38 Burridge and Webb, above n 34, at 264. This is mirrored by other commentators such as Johnstone who refers to the law degree as preparing students for a useful role within society (Johnstone, G ‘Liberal ideals and vocational aims in university legal education’ (1999) 3 Web Journal of Current Legal IssuesGoogle Scholar) and Brownsword's reference to ‘intelligent participation in the politico-legal life of the community’ (Brownsword, above n 32, at p 29). In contrast, commentators such as Bradney, above n 13, and Nussbaum, above n 32, appear to focus more on the development of critical thinking faculties to enable the individual to ‘adhere to the principles of sceptical enquiry and individual responsibility’: Bradney, above n 13, at p 56.

39 The conflation of reason with intellect arguably illustrates what Schlag memorably described as ‘the enchantment of reason’ (see Schlag, P The Enchantment of Reason (Durham: Duke University Press, 1998)CrossRefGoogle Scholar.

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41 Johnstone, above n 38, argues that liberal legal education's focus on certain intellectual capacities can, in fact, prioritise these at the expense of other qualities such as ‘an ability to relate to oneself and others as persons’. There is significant evidence that emotions have been largely disregarded in the liberal tradition of education generally, see for example Hyland, T ‘Mindfulness-based interventions and the affective domain of education’ (2014) 40 Educational Studies 277CrossRefGoogle Scholar; Lynch, K ‘Carelessness: a hidden doxa in higher education’ (2010) 9 Arts & Humanities in Higher Education 54CrossRefGoogle Scholar; Grummell, B, Devine, D and Lynch, K ‘The care-less manager: gender, care and new managerialism in higher education’ (2009) 21 Gender and Education 191CrossRefGoogle Scholar. A notable exception in relation to legal education is provided by Webb in his 2006 article which proposes a constructivist, emotionally-engaged approach to learning that would enable law students to assess their own feelings, motivations and values in a way which allows them to tailor their education to their own needs and engage in deeper forms of learning (above n 25).

42 Descartes, R [Voss, SH (transl)] The Passions of the Soul (Indianapolis: Hackett Publishing, 1989)Google Scholar. This dualism between cognition and affect can also be traced back to Platonic concepts of the division of the soul (Plato Republic (Indianapolis: Hackett Publishing Company, 1974); Scherer, KR ‘On the rationality of emotions: or, when are emotions rational?’ (2011) 50 Social Science Information 330CrossRefGoogle Scholar; Coplan, A ‘Feeling without thinking: lessons from the ancients on emotions and virtue-acquisition’ (2010) 41 Metaphilosophy 132CrossRefGoogle Scholar.

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44 This mirrors the wider divide between the cognitive and affective domains which has traditionally been accepted by scientists (Grossi, above n 3, at 55; Scherer, above n 42, at 332; Pessoa, L ‘On the relationship between emotion and cognition’ (2008) 9 Nature Reviews Neuroscience 148 at 148CrossRefGoogle ScholarPubMed).

45 Solomon, above n 43, at p 3. See also Damasio, A Descartes’ Error (London: Vintage, 2006) p 128Google Scholar.

46 This is well demonstrated by the paucity of literature in this area. In the first book-length treatment of legal education and the affective domain, editors Maharg and Maughan note that the topic is ‘relatively invisible’ in literature on legal education: Maharg, P and Maughan, C ‘Introduction’ in Maharg, P and Maughan, C (eds) Affect and Legal Education. Emotion in Learning and Teaching the Law (Aldershot: Ashgate Publishing, 2011) pp 1–10, at p 1Google Scholar).

47 See, for example, Coplan, above n 42; Kappas, A ‘Appraisals are direct, immediate, intuitive, and unwitting … and some are reflective ….’ (2006) 20 Cognition and Emotion 952CrossRefGoogle Scholar; Damasio, above n 45; Oatley et al, above n 2; Debes, R ‘Neither here nor there: the cognitive nature of emotion’ (2002) 146 Philosophical Studies 1CrossRefGoogle Scholar; Nussbaum, M Upheavals of Thought: The Intelligence of Emotions (Cambridge: Cambridge University Press, 2001)CrossRefGoogle Scholar; Averill, JR ‘Intelligence, emotion and creativity. From trichotomy to trinity’ in Bar-On, R and Parker, JDA (eds) Handbook of Emotional Intelligence: The Theory and Practice of Development Evaluation, Education and Implementation – at Home, School and in the Workplace (San Francisco: Jossey Bass, 2000) pp 277–298Google Scholar; Lazarus, RS ‘On the primacy of cognition’ (1984) 39 American Psychologist 124CrossRefGoogle Scholar.

48 Appraisal theories were originated by Magda Arnold (Arnold, MB Emotion and Personality. Volume 1 Psychological Aspects (London: Cassell & Company 1960)Google Scholar). For discussion of the various forms which have since developed see for example Moors, A ‘Flavours of appraisal theories of emotion’ (2014) 6 Emotion Review 303CrossRefGoogle Scholar; Ellsworth, PC ‘Appraisal theory: old and new questions’ (2013) 5 Emotion Review 125CrossRefGoogle Scholar; Oatley et al, above n 2, at pp 165–190.

49 Bandes and Blumenthal, above n 3, at 164.

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54 For broad definitions of socio-legal studies, see for example Twining, above n 22, at p 23; Economic and Social Research Council Review of Socio-Legal Studies (1993); Sherr, A and Webb, J ‘Law students, the external market and socialization: do we make them turn to the city?’ (1989) 16 Journal of Law and Society 225 at 226CrossRefGoogle Scholar. In contrast, some earlier definitions focused more specifically on the relationship between law and the social sciences (Harris, DR ‘The development of socio-legal studies in the United Kingdom’ (1983) 3 Legal Studies 315 at 315CrossRefGoogle Scholar).

55 In terms of legal research, the Law Sub-Panel to the 2014 Research Excellence Framework commented on the ‘trend towards methodological diversity and interdisciplinarity as evidence of the growing sophistication of legal scholarship as a body of knowledge and understanding with wide-ranging insights, impacts and implications for the social world’ (Research Excellence Framework Overview report by Main Panel C and Sub-panels 16–26 (2014), available at https://www.ref.ac.uk/2014/media/ref/content/expanel/member/Main%20Panel%20C%20overview%20report.pdf (last accessed 10 July 2018) at p 72). See also Siems and Mac Sithigh, above n 53; Genn, Partington and Wheeler, above n 53; Cownie, F and Bradney, A ‘Gothic horror? A response to Margaret Thornton’ (2005) 14 Social & Legal Studies 277 at 282–283CrossRefGoogle Scholar. In terms of teaching, there appears to be little empirical evidence available, but Cownie's survey of legal academics (Cownie, above n 24, at pp 56–58) referred to both research and teaching styles and Guth and Ashford (above n 13, at 10) suggest that the current joint statement on the academic stage of training and its identification of foundation subjects demonstrates a continuing belief that subjects can be divided between those which are doctrinal and those which are socio-legal in nature.

56 There is some discussion in literature on empirical legal research of the role of both the researcher(s) and participant(s) emotions and feelings, but this is limited: see for example H McCosker, A Barnard and R Gerber ‘Undertaking sensitive research: issues and strategies for meeting the safety needs of all participants’ (2001) 2 Qualitative Social Research, Art 22, available at http://www.qualitative-research.net/index.php/fqs/article/view/983 (last accessed 10 July 2018).

57 Spain, above n 10, and Stannard, above n 10, are relevant examples in relation to criminal justice. In relation to the legal profession see Westaby, C ‘“Feeling like a sponge”: the emotional labour produced by solicitors in their interactions with clients seeking asylum’ (2010) 17 International Journal of the Legal Profession 153CrossRefGoogle Scholar; Harris, LC ‘The emotional labour of barristers: an exploration of emotional labour by status professionals’ (2002) 39 Journal of Management Studies 553CrossRefGoogle Scholar. For a useful, if somewhat dated, taxonomy of the field of law and emotion scholarship see Maroney, above n 1.

58 See n 46 above. Bromberger, writing in an Australian context, suggests that what literature there is largely focuses on the negative impact of legal education on law student well-being: see Bromberger, N ‘Enhancing law student learning – the nurturing teacher’ (2010) 20 Legal Education Review 45Google Scholar. However, even this topic is relatively unexplored in the UK.

59 Kennedy, above n 27, at 594. For other critiques see Goodrich, above n 27; Stanley, above n 27.

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74 P Allott ‘Glum law’ (1987) Times Higher Education Supplement, 21 August, at 9.

75 Curzon, LB Teaching in Further Education: An Outline of Principles and Practice (London: Continuum, 3rd edn, 2004) p 36Google Scholar; see also Armitage, above n 64, at p 72; Bredo, E ‘The social construction of learning’ in Pyhe, GD (ed) Handbook of Academic Learning (London: Academic Press Ltd, 1997) pp 3–45 at p 16CrossRefGoogle Scholar.

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82 Naude, L, van den Burgh, TJ and Kruger, IS ‘“Learning to like learning”: an appreciative inquiry into emotions in education’ (2014) 17 Social Psychology Education 211 at 211Google Scholar.

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87 Following the 2010 general election this support seems to have been withdrawn, although SEAL remains widely used see J Casey A Critical Literature Review. Should the Social and Emotional Aspects of Learning (SEAL) Programme Continue to be Used in Schools, as a Mechanism for Promoting Attainment? (2011) pp 5–6, available at http://sealcommunity.org/files/member_resources/SEAL%20evidence%20review.pdf (last accessed 5 July 2018); T Bywater and J Sharples ‘Effective evidence-based interventions for emotional well-being: lessons for policy and practice’ (2012) 27 Research Papers in Education 389 at 393.

88 Bannerjee, R, Weare, K and Farr, W ‘Working with “social and emotional aspects of learning” (SEAL): associations with school ethos, pupil social experiences, attendance and attainment’ (2014) 40 British Educational Research Journal 718 at 721CrossRefGoogle Scholar; Bywater and Sharples, above n 87, at 392.

89 K Weare and G Gray What Works in Developing Children's Emotional and Social Competence and Wellbeing? Research Report RR456 (Department for Education and Skills, 2003), available at http://webarchive.nationalarchives.gov.uk/20130401151715/http://www.education.gov.uk/publications/eOrderingDownload/RR456.pdf (last accessed 5 July 2018).

90 N Humphrey, A Lendrum and M Wigelsworth Social and Emotional Aspects of Learning (SEAL) Programme in Secondary Schools: National Evaluation Research Report RR049 (Department for Education, 2010), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/181718/DFE-RR049.pdf (last accessed 5 July 2018) p 90.

91 Humphrey et al, above n 90, at p 91.

92 Bannerjee et al, above n 88, at 719; see also Humphrey et al, above n 90, at p 102; P Smith et al Secondary Social, Emotional and Behavioural Skills Pilot Evaluation Research Report RR003 (Department for Children, Schools and Families, 2007), available at http://eprints.whiterose.ac.uk/73993/1/Secondary_SEBS_Pilot_Evaluation_Research_Report.pdf (last accessed 5 July 2018); S Hallam, J Rhamie and J Shaw Evaluation of the Primary Behaviour and Attendance Pilot, Research Report 717 (Department for Education and Skills, 2006), available at http://sealcommunity.org/files/resources/Evaluation%20of%20the%20primary%20behaviour%20and%20attendance%20pilot.pdf (last accessed 4 July 2018).

93 Bannerjee et al, above n 88, at 735.

94 C Leathwood and V Hey ‘Gender/ed discourses and emotional sub-texts: theorising emotion in UK higher education’ (2009) 14 Teaching in Higher Education 429 at 429.

95 Leathwood and Hey, above n 94, at 429; see also Lynch, above n 41.

96 Ecclestone, K ‘Emotionally-vulnerable subjects and new inequalities: the educational implications of an “epistemology of the emotions”’ (2011) 21 International Studies in Sociology of Education 91CrossRefGoogle Scholar; Ecclestone, K, Hayes, D and Furedi, F ‘Knowing me, knowing you: the rise of therapeutic professionalism in the education of adults’ (2005) 37 Studies in the Education of Adults 182CrossRefGoogle Scholar; Ecclestone, K ‘Learning or therapy? The demoralisation of education’ (2004) 52 British Journal of Educational Studies 112CrossRefGoogle Scholar; Ecclestone, K ‘Developing self-esteem and emotional well-being – inclusion or intrusion?’ (2004) 16 Adult Learning 11Google Scholar; see also F Furedi ‘The silent ascendancy of therapeutic culture in Britain (2002) 39 Society 16.

97 Ecclestone (2011), above n 96, at 94.

98 Beard, C, Clegg, S and Smith, K ‘Acknowledging the affective in higher education’ (2007) 33 British Educational Research Journal 235 at 236CrossRefGoogle Scholar.

99 Beard et al, above n 98; Naude et al, above n 82.

100 See the papers in Maharg and Maughan, above n 46, and the discussions of humanist theory above n 67.

101 Wangerin, above n 70.

102 Ibid.

103 There is a largely US-based body of work which seeks to argue for legal education to acknowledge less traditional forms of intelligence (referred to as multiple intelligences), see for example Dauphinais, KA ‘Valuing and nurturing multiple intelligences in legal education: a paradigm shift’ (2005) 11 Washington and Lee Race and Ethnic Ancestry Law Review 1Google Scholar; James, C ‘Seeing things as we are. Emotional intelligence and clinical legal education’ (2005) 9 International Journal of Clinical Legal Education 123Google Scholar; Weinstein, L ‘Testing multiple intelligences: comparing evaluation by simulation and written exam’ (2002) 8 Clinical Law Review 247Google Scholar; Silver, MA ‘Emotional intelligence and legal education’ (1999) 5 Psychology, Public Policy and Law 1173CrossRefGoogle Scholar.

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105 Smith, A and Webster, F ‘Changing ideas of the university’ in Smith, A and Webster, F (eds) The Postmodern University? Contested Visions of Higher Education in Society (Buckingham and Philadelphia: Society for Research into Higher Education and the Open University Press, 1997) p 2Google Scholar. The 1963 report of the Committee on Higher Education (commonly known as ‘the Robbins Report’) indicated that in 1962, 7% of the population remained in education at the age of 19 (Committee on Higher Education (1963) Higher Education Report, Cmnd 2154). Between 2009 and 2012, 44% of all 18–24 year olds were in full time education: Department for Business, Innovation & Skills Analysis of Young People in Full-Time Education and Employment: April – June 2014 (2014), available at https://www.gov.uk/government/statistics/young-people-in-full-time-education-and-employment-april-to-june-2014 (last accessed 5 July 2018).

106 For discussion of the impact of neo-liberalism on law schools in UK and Australia see for example Collier, R ‘“Love law, love life”: neoliberalism, wellbeing and gender in the legal profession – the case of law school’ (2014) 17 Legal Ethics 202CrossRefGoogle Scholar; Thornton, M ‘Legal education in the corporate university’ (2014) 10 The Annual Review of Law and Social Science 19CrossRefGoogle Scholar; Collier, R ‘Privatizing the university and the new political economy of socio-legal studies: remaking the (legal) academic subject’ (2013) 40 Journal of Law and Society 450CrossRefGoogle Scholar; Thornton, M ‘The new knowledge economy and the transformation of the law discipline’ (2012) 19 International Journal of the Legal Profession 265CrossRefGoogle Scholar; Thornton, M Privatising the Public University: The Case of Law (Abingdon: Routledge, 2011)Google Scholar; Lynch, K ‘Neoliberalism and marketisation: the implications for higher education’ (2006) 5 European Education Research Journal 1CrossRefGoogle Scholar; Collier, R ‘The liberal law school, the restructured university and the paradox of socio-legal studies’ (2005) 68 Modern Law Review 475CrossRefGoogle Scholar; Thornton, M ‘Gothic horror in the legal academy’ (2005) 14 Social & Legal Studies 267CrossRefGoogle Scholar; Thornton, M ‘Among the ruins: law in the neo-liberal academy’ (2001a) 20 Windsor Yearbook of Access to Justice 3Google Scholar; Thornton, M ‘The demise of diversity in legal education: globalisation and the new knowledge economy” (2001b) 8 International Journal of the Legal Profession 37CrossRefGoogle Scholar.

107 Joshee, R ‘Neoliberalism versus social justice: a view from Canada’ in Hopson, RK, Yeakey, CC and Boakary, FM (eds) Power, Voice and the Public Good: Schooling and Education in Global Societies (Bingley: Emerald Group Publishing, 2008) p 56Google Scholar; see also Bessant, SEF, Robinson, ZP and Ormerod, RM ‘Neoliberalism, new public management and the sustainable development agenda of higher education: history, contradictions and synergies’ (2015) 21 Environmental Education Research 417CrossRefGoogle Scholar; Ball, M ‘Learning, labour and employability’ (2009) 41 Studies in the Education of Adults 39CrossRefGoogle Scholar.

108 National Committee of Inquiry into Higher Education Higher Education in the Learning Society (1997), available at http://www.educationengland.org.uk/documents/dearing1997/dearing1997.html (last accessed 5 July 2018) p 3.

109 Department for Business, Innovation & Skills Success as a Knowledge Economy. Teaching Excellence, Social Mobility and Student Choice (2016), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/523546/bis-16-265-success-as-a-knowledge-economy-web.pdf (last accessed 5 July 2018) p 8.

110 A notable example of this is included in the Department for Business, Innovation & Skills’ 2016 White Paper on higher education where it uses the term ‘teaching’ ‘to include learning environments, student support, course design, career preparation and “soft skills”, as well as what happens in the lecture theatre or lab’: ibid.

111 J Andrews and H Higson ‘Graduate employability, “soft skills” versus “hard” business knowledge: a European study’ (2008) 33 Higher Education in Europe 411 at 419; see also Chamorro-Premuzic et al, above n 104, at 222; Bennett et al, above n 104, at 78.

112 Baker, G and Henson, D ‘Promoting employability skills development in a research-intensive university’ (2010) 52 Education + Training 62Google Scholar; Boden, R and Nedeva, M ‘Employing discourse: universities and graduate “employability”’ (2010) 25 Journal of Education Policy 37CrossRefGoogle Scholar; Cranmer, S ‘Enhancing graduate employability: best intentions and mixed outcomes’ (2006) 31 Studies in Higher Education 169CrossRefGoogle Scholar; Drummond, I, Nixon, I and Wiltshire, J ‘Personal transferable skills in higher education: the problems of implementing good practice’ (1998) 6 Quality Assurance in Education 19CrossRefGoogle Scholar.

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114 Quality Assurance Agency Subject Benchmark Statement Law (2015) p 8, available at http://www.qaa.ac.uk/docs/qaa/subject-benchmark-statements/sbs-law-15.pdf?sfvrsn=ff99f781_8 (accessed 5 July 2018).

115 Legal Education and Training Review, above n 113.

116 Legal Education and Training Review, above n 113, at paras 4.83 and table 4.3.

117 Legal Education and Training Review, above n 113, at para 2.93.

118 Quality Assurance Agency, above n 114, at p 7.

119 The ‘knowledge economy’ has been described as requiring skilled workers who can adapt to the needs of the economy and maximise its profitability (Levidow, L ‘Marketizing higher education: neoliberal strategies and counter-strategies’ in Robins, K and Webster, F (eds) The Virtual University? Knowledge, Markets and Management (Oxford: Oxford University Press, 2002) p 227 at p 229Google Scholar; see also Holborow, M ‘Neoliberalism, human capital and the skills agenda in higher education – the Irish case’ (2012) 10 Journal for Critical Education Policy Studies 93 at 94 and Barrie, above n 104, at 216Google Scholar.

120 The two models commonly referred to are proposed by Salovey and Mayer (see for example Salovey, P and Mayer, JD ‘Emotional intelligence’ (1990) 9 Imagination, Cognition and Personality 185CrossRefGoogle Scholar) and Goleman (see for example Goleman, D Emotional Intelligence (London: Bloomsbury, 1996)Google Scholar) although a number of others exist (see for example Bar-On, R ‘Emotional and social intelligence: insights from the emotional quotient inventory’ in Bar-On, R and Parker, JDA (eds) Handbook of Emotional Intelligence: The Theory and Practice of Development Evaluation, Education and Implementation – at Home, School and in the Workplace (San Francisco: Jossey Bass, 2000) pp 3363–3389Google Scholar).

121 Goleman, D Working with Emotional Intelligence (London: Bloomsbury, 1998)Google Scholar; RE Boyatzis, D Goleman and K Rhee ‘Clustering competence in emotional intelligence: insights from the emotional competence inventory’ in Bar-On and Parker, above n 120, p 343 at p 345.

122 Boyatzis, Goleman and Rhee, above n 121, p 355.

123 Ibid.

124 See for example Murphy, KA and Sideman, L ‘The two eis’ in Murphy, KA (ed) A Critique of Emotional Intelligence. What Are the Problems and How Can They Be Fixed? (London: Lawrence Erlbaum Associates, 2006)Google Scholar; Waterhouse, L ‘Multiple intelligences, the Mozart effect and emotional intelligence: a critical review’ (2006) 41 Educational Psychologist 207CrossRefGoogle Scholar; Waterhouse, L ‘Inadequate evidence for multiple intelligences, the Mozart effect and emotional intelligence theories’ (2006) 41 Educational Psychologist 247CrossRefGoogle Scholar.

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126 Montgomery, JE ‘Incorporating emotional intelligence concepts into legal education: strengthening the professionalism of law students’ (2008) 39 University of Toledo Law Review 323Google Scholar; Davis, PC and Francois, AB ‘Making law students healthy, skillful and wise’ (2005) 56 New York Law School Review 487Google Scholar; Cain, PJ ‘A first step toward introducing emotional intelligence into the law school curriculum: the “emotional intelligence and the clinical student” class’ (2003) 14 Legal Education Review 1Google Scholar.

127 Silver, above n 103, at 1174; see also James, above n 30, at 95; see also James, above n 103.

128 James, C ‘Lawyer dissatisfaction, emotional wellbeing and clinical legal education’ (2008) 18 Legal Education Review 123 at 132Google Scholar.

129 Finch, E and Fafinski, S Employability Skills for Law Students (Oxford: Oxford University Press, 2014) pp 62–63CrossRefGoogle Scholar; Boyatzis, Goleman and Rhee, above n 121; Goleman, above n 121.

130 Legal Education and Training Review, above n 113, at para 2.97.

131 Legal Education and Training Review, above n 113, at para 2.103.

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136 Thornton (2001a), above n 106, at 10.

137 See n 106 above and Cownie and Bradney, above n 55.

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151 Shanfield, S and Benjamin, GAH ‘Psychological distress among medical and law students’ (1985) 35 Journal of Legal Education 65 at 65Google Scholar; see also Benjamin, GAH et al. ‘The role of legal education in producing psychological distress among law students and lawyers’ (1986) 11 Law & Social Inquiry 225CrossRefGoogle Scholar.

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153 Sheldon and Krieger, above n 152, at 271.

154 Sheldon and Krieger, above n 152, at 275.

155 Sheldon and Krieger, above n 152, at 272. Sheldon and Krieger's 2007 study (above n 143) was a longitudinal three-year study, again with cohorts from two US law schools which indicated similar results and demonstrated a decline in subjective well-being during the students’ time at law school. For similar findings in Canada see Pritchard, ME and McIntosh, DN ‘What predicts adjustment among law students? A longitudinal panel study’ (2003) 143 The Journal of Social Psychology 727CrossRefGoogle Scholar.

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157 Kelk, above n 143, at p 42. The questionnaire administered identified that 35.4% of the law students surveyed reported suffering high or very high levels of psychological distress in the last 30 days, compared to 13% of 18–34-year-olds overall in the Australian population (p 12). 46.9% of law students surveyed also reported that they had experienced depression, although 39.4% stated that they would not seek help from a professional if they were depressed (pp 14 and 20). Of those students who had suffered depression, 80.6% viewed their study as a contributing factor (the next highest factor was work at 54%) (p 34).

158 Kelk, above n 143, at p 42.

159 Bergin, A and Pakenham, K ‘Law student stress: relationships between academic demands, social isolation, career pressure, study/life imbalance and adjustment outcomes in law students’ (2015) 22 Psychiatry, Psychology and Law 388CrossRefGoogle Scholar; Lester, A, England, L and Antolak-Saper, N ‘Health and wellbeing in the first year. The law school experience’ (2011) 36 Alternative Law Journal 47CrossRefGoogle Scholar.

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161 Larcombe, W, Finch, S and Sore, R ‘Who's distressed? Not only law students: psychological distress levels in university students across diverse fields of study’ (2015) 37 Sydney Law Review 243 at 243Google Scholar.

162 Larcombe et al, above n 161, at 265.

163 Larcombe et al, above n 161, at 256.

164 Larcombe et al, above n 161, at 264. The suggestion has also been made that the evidence is based on self-report by law students who may be trying to comply with cultural norms which view the law as requiring hard work and stress: Glenn, P ‘Some thoughts about developing constructive approaches to lawyer and law student distress’ (1995) 10 Journal of Law & Health 69 at 69Google Scholar.

165 Skread and Rogers (2015), above n 143, at 89.

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168 Townes O'Brien, M, Tang, S and Hall, K ‘No time to lose: negative impact on law student wellbeing may begin in year one’ (2011) 2 The International Journal of the First Year in Higher Education 49 at 51CrossRefGoogle Scholar; Jolly-Ryan, J ‘Promoting mental health in law school: what law schools can do for law students to help them become happy, mentally healthy lawyers’ (2009) 48 University of Louisville Law Review 95 at 106Google Scholar; Dresser, above n 149, at 50; Sturm (1998), above n 60. For a discussion of attempts to reform this system in the US context, see Sturm and Guinier, above n 60.

169 Townes O'Brien et al, above n 168, at 56–57; see also O'Brien, M Townes, Tang, S and Hall, K ‘Changing our thinking: empirical research on law student wellbeing, thinking styles and the law curriculum’ (2011) 21 Legal Education Review 149Google Scholar.

170 Townes O'Brien et al, above n 169, at 155. The study by Townes O'Brien et al of over 300 law students applied three psychometric instruments to assess the students’ thinking style and found ‘significant differences’ between the scores at the start and end of the first year, with scores on the rational thinking scale becoming ‘significantly higher’ and scores on the experiential thinking scale becoming ‘significantly lower’ (at 163). However, students who were higher than the average in rational thinking, but lower than the average in experiential thinking demonstrated ‘a significant increase in depressive symptoms’ over the course of the first year and a ‘clear association’ was identified between lower levels of depressive symptoms and higher levels of experiential thinking (at 165).

171 Townes O'Brien et al, above n 169, at 167.

172 See, for example, Krieger, above n 167. For a psychological explanation see Ryan, RM and Deci, EL ‘Self-determination theory and the facilitation of intrinsic motivation, social development, and well-being’ (2000) 55 American Psychologist 68CrossRefGoogle ScholarPubMed.

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174 Bergin and Pakenham, above n 159, at 400; Skread and Rogers (2014), above n 143, at 585; Larcombe, W et al. ‘Does an improved experience of law school protect students against depression, anxiety and stress? An empirical study of wellbeing and the law school experience of LLB and JD students’ (2013) 35 Sydney Law Review 407 at 429Google Scholar; Galloway et al, above n 143, at 247; Tani and Vines, above n 143, at 31; Iijima, A ‘Lessons learned: legal education and law student dysfunction’ (1998) 48 Journal of Legal Education 524 at 527Google Scholar. In the UK context, social connectedness has been identified as being of particular significance to law students during the first few weeks of their time at university: Brooman, S and Darwent, S ‘Measuring the beginning: a quantitative study of the transition to higher education’ (2014) 39(9) Studies in Higher Education 1523 at 1538CrossRefGoogle Scholar.

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176 In the US, the law degree is viewed overall as a ‘professional education’ but there is debate over how successfully it fulfils this mission, with different law schools taking different approaches (McMorrow, JA, ‘Comparative legal education: an introduction to US legal education and preparation for the practice of law’ (2009) 6 Jurist Review 20 at 22Google Scholar; Gordon, RW ‘Legal education in the US: origin and development’ (2002) 7(2) Issues of Democracy 6Google Scholar). The Australian law school appears to have greater similarities with England and Wales in this regard, although there is still a clear vocational element (Council of Australian Law Deans Studying Law in Australia, available at https://cald.asn.au/slia/legal-education/ (accessed 5 July 2018).

177 Galloway et al, above n 143, at 246; Bromberger, above n 58, at 47.

178 Bromberger, above n 58, at 58; Dresser, above n 149, at 46–47; Glesner, above n 143, at 636.

179 Grover, S ‘Personal integration and outsider status as factors in law student well-being’ (2008) 47 Washburn Law Journal 419Google Scholar.

180 Glesner, above n 143, at 641.

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184 Bromberger, above n 58, at 48; Dresser, above n 149, at 50.

185 Iijima, above n 174, at 527.

186 Iijima, above n 174, at 527.

187 Allen and Baron, above n 166, at 288; in relation to higher education generally see also Kahu, ER ‘Framing student engagement in higher education’ (2013) 38 Studies in Higher Education 758CrossRefGoogle Scholar.

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189 James, above n 30; James, above n 103; Dresser, above n 149.

190 Krieger, above n 173, at 261; Siptroth, above n 143, at 181; Sheldon and Krieger, above n 152, at 262. Kelk et al, above n 143, at p 49 suggest that the competitive style adopted in law schools is unlikely to be appropriate if applied to everyday life.

191 Grover, above n 179, at 422; see also Krieger, above n 167, at 125.

192 Rowe, AD, Fitness, J and Wood, LN ‘University student and lecturer perceptions of positive emotions in learning’ (2015) 28(1) International Journal of Qualitative Studies in Education 1CrossRefGoogle Scholar; Sagayadevan, V and Jeyaraj, S ‘The role of emotional engagement in lecturer-student interaction and the impact on academic outcomes of student achievement and learning’ (2012) 12(3) Journal of the Scholarship of Teaching and Learning 1Google Scholar.

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198 Nias, above n 194.

199 Sutton and Wheatley, above n 194, at 336; see also O'Connor, KE ‘“You choose to care”: teachers, emotions and professional identity’ (2008) 24 Teaching and Teacher Education 117CrossRefGoogle Scholar; Phye et al, above n 194; Hargreaves, A ‘Mixed emotions: teachers’ perceptions of their interactions with students’ (2000) 16 Teaching and Teacher Education 811CrossRefGoogle Scholar.

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206 Galloway et al, above n 143.

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208 Guth, above n 193.

209 Nicolson, above n 141.

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215 Collier (2013), above n 106, at 460; Burrows, R ‘Living with the h-index: metric assemblages in the contemporary academy’ (2012) 60 Sociological Review 355 at 355CrossRefGoogle Scholar; Leathwood and Hey, above n 94, at 437.

216 Rowland, S ‘Collegiality and intellectual love’ (2008) 29 British Journal of Sociology of Education 353 at 353CrossRefGoogle Scholar.

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218 Grummell et al, above n 41, at 192.

219 Collier, above n 211, at 11.

220 Lynch, above n 41, at 59.

221 Lynch, above n 41, at 59.

222 Baron, above n 213, at 35.

223 G Kinman, and S Wray Higher Stress. A Survey of Stress and Well-being Among Staff in Higher Education, University and College Union (2013), available at http://www.ucu.org.uk/media/pdf/4/5/HE_stress_report_July_2013.pdf (last accessed 5 July 2018) p 3. Out of 24,030 surveyed, 14,667 primarily worked in higher education) (p 10); for a US-based discussion of stressors in higher education see Watts, J and Robertson, N ‘Burnout in university teaching staff: a systematic literature review’ (2011) 53 Educational Research 33CrossRefGoogle Scholar.

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225 Hochschild, AR The Managed Heart: Commercialization of Human Feeling (Berkeley: University of California Press, 2003) p 7Google Scholar.

226 Hochschild, above n 225, at p 34.

227 Hochschild, above n 225, at pp 183 and 187.

228 Hochschild, above n 225, at p 154; Schutz, P et al. ‘Reflections on investigating emotion in educational activity settings’ (2006) 18 Educational Psychology Review 343 at 357CrossRefGoogle Scholar; Bellas, above n 193, at 97.

229 Ogbanna, E and Harris, LC ‘Work intensification and emotional labour among UK university lecturers: an exploratory study’ (2004) 25(7) Organizational Studies 1185CrossRefGoogle Scholar.

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233 Thomas, above n 22, at p 33; see also James, H ‘Supporting new law teachers – a study to determine needs’ (2009) 43 The Law Teacher 200 at 206CrossRefGoogle Scholar.

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235 Grossi, above n 3; Maroney, above n 1, at 119; Bandes, above n 3.

236 Conaghan, above n 3; Bradney, above n 13; Solomon, above n 43, at p 3; Descartes, above n 42; Kennedy, above n 27.

237 Maharg and Maughan, above n 46, at p 1.

238 Maharg, P Transforming Legal Education. Learning and Teaching the Law in the Early Twenty-First Century (Aldershot and Burlington: Ashgate Publishing, 2007)Google Scholar.

239 Grossi, above n 3; Maroney, above n 1, at 119; Bandes, above n 3.

240 Pekrun and Linnenbrink-Garcia, above n 83; Bannerjee et al, above n 88; Weare and Gray, above n 89.

241 Chamorro-Premuzic et al, above n 104; Goleman, above n 121; Salovey and Mayer, above n 120; National Committee of Inquiry into Higher Education, above n 108. In relation to legal education specifically, see the Legal Education and Training Review, above n 113.

242 See, for example, Macaskill, above n 147; Kelk et al, above n 143; Sheldon and Krieger, above n 143; Huggins, above n 167; Townes O'Brien et al, above n 168; Townes O'Brien et al, above n 169; Tani and Vines, above n 143; Krieger, above n 167; Galloway et al, above n 143; Bromberger, above n 58; Dresser, above n 149; Glesner, above n 143.

243 Kinman and Wray, above n 223; Hargreaves, above n 199; Nias, above n 194; Postareff and Lindblom-Ylänne above n 202; Collier (2013), above n 106; Bromberger, above n 58; Lynch, above n 106, at 11; Thornton (2011), above n 106; Grummell et al, above n41; Rowland, above n 216; Zhang and Zhu, above n 231; Hochschild, above n 225; Gates, above n 72.

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249 Hey and Leathwood, above n 43, at 110.

250 Burke, above n 245, at 391; Leathwood and Hey, above n 94, at 433; Clegg and David, above n 244, at 158.

251 In relation to compulsory schooling, see Bannerjee et al, above n 88, at 732; Durlak et al (2011), above n 86, at 418. In relation to legal education, see Larcombe et al, above n 161, at 432; Duffy, J, Field, R and Shirley, M ‘Engaging law students to promote psychological health’ (2011) 36 Alternative Law Journal 250CrossRefGoogle Scholar; Galloway et al, above n 143, at 247; Krieger, LS ‘Human nature as a new guiding philosophy for legal education and the profession’ (2008) 47 Washburn Law Journal 247Google Scholar; Glesner, above n 143, at 645.

252 Galloway et al, above n 143.

253 Brooman and Darwent, above n 174.

254 Watkins, above n 73; Blissenden, above n 73; Bergin and Pakenham, above n 159, at 402; Skread and Rogers (2014), above n 143, at 576; Galloway et al, above n 143, at 247; Tani and Vines, above n 143, at 32; Dresser, above n 149, at 59–60; Brooman and Darwent, above n 210.

255 Baker, G ‘Rediscovering therapeutic jurisprudence in overlooked areas of the law – how exposing its presence in the environmental justice movement can legitimize the paradigm and make the case for its inclusion into all aspects of legal education and the practice of law’ (2008) 9 Florida Coastal Law Review 215Google Scholar.

256 See n 143 above.