Much has been written about the ‘ethical identity’ of law students with what Elizabeth Chambliss describes as a dominant ‘corruption narrative’ informing philosophical and empirical accounts.1 In another myth-busting study from Richard Moorhead and others, The Ethical Identity of Law Students, the diminishment thesis is tested, somewhat supported and problematized.
Blame is often leveled at an ever more commercialized profession and the (poor) signals it sends to law students about role morality. Moorhead’s research suggests that pre-conceptions of differing legal practice might attract differently ethically inclined students. . What these students then learn at law school is also subject to what Wald and Pearce describe as an ’industry’ of criticism.2 Scholarship across the common law world points to the negative effect of a neo-liberal turn of law schools; in Australia, Margaret Thornton has long argued that we produce ‘narrow technocrats.’3 Elizabeth Mertz describes a language of indoctrination at law school which favours professional ‘hubris’ over social justice and moral reasoning.4 While not all legal education has been implicated in ethical diminishment—notably clinical education—smaller-scale studies have produced little evidence of positive impact. Nevertheless, Chambliss argues that our student days and professional lives may be subject to many instances of ‘ethical learning’ and ‘ethical fading’. The difficulty then for any researcher trying to measure this influence is to understand the context and the subject.
In their excellently designed large group study of (1,010) law students in the US, England and Wales, the authors try to test the veracity of such theories. The study first takes up the challenge to set some methodologically rigorous benchmarks as to the ethical identity of their participating law students as they begin and end their studies. They assess whether ethical learning or ethical fading occurs, and whether certain types of ethical education have more or less of an effect. Finally, they test the self-selection thesis in so far as they compare the ethical identities of those who intend to practice law and those who don’t; and compare those who intend to practice business law with those who want to work in other areas.
The authors use a range of established psychological tools to measure a series of ethical indicators: values held, ‘ethical sensitivity, ethical implementation, moral motivation and identity formation.’ (P. 238.) The values of students in the US and England and Wales were found to be ‘broadly similar’ where they valued ‘self-transcendence and openness to change over self-enhancement and conservation.’ (P. 246.) While the paper does not provide any general population benchmark, these seem neutral results—their law students as a bunch don’t appear to be intrinsically bad people. And, for England and Wales, the study indicates that legal education enhances ethical identity as moral improvement was found between students early in their undergraduate studies and those in postgraduate vocational training. (P. 246-7.) However, the picture over time was quite different for US law students. Alarmingly for US educators, their students appear to diminish in moral identity and attentiveness as they progress through their studies.
Their second set of measures considered professional identification: ‘are law students identifying as professionals, as lawyers and what is the nature of that identification?’ (P. 239.) While sociological studies assume the adoption of professional norms as generally ‘pro-social’, the authors cast an appropriately skeptical eye on their results ‘because the relationships between professional identification and ethicality are complex, we do not use professional identity as a proxy for ethical improvement or degradation.’ (P. 240.) Indeed, the results of the study indicate that development of professional identification is variable and complex. No real pattern emerged for English and Welsh students. However, ‘among US students, identification as a professional or a lawyer [early in their studies] is generally replaced by an affective commitment to being a lawyer [by the end of their studies].’ (P. 247.) They conclude of this result:
Given the tensions between the profession’s claim of virtue (value of service to public and code of conduct) and a perceived risk of diminished ethicality (acceptance of otherwise questionable behavior) consonant with role morality might explain stronger affective commitment by lower identification. More simply, it might reflect a growing realization amongst US law students that being a lawyer is more of a ‘job’ and less of a profession. (P. 248.)
Thus they say that the combined results for US students are ‘consistent with the diminished ethicality thesis.’ (P. 248.) The US, like many other countries, mandates professional ethics education. England and Wales do not. The Moorhead study suggests that the presence of ethics courses have little impact upon, or may even exacerbate, ethical fading. But there’s a twist: the study also found that there was a ‘statistically significant relationship between ethics training and values or professional identification.’ (P. 251.) It was unclear to me how these two results correlate exactly, and more discussion of ethics training offered in compared courses would have assisted here. Still, the results encouragingly show that a well delivered clinical or ethics course may be an important site for student ethical learning.
The study also considered a range of variables such as gender and career intentions, producing interesting, if unsurprising, results. For instance, those wanting to do business focused practice had ‘a values profile consistent with weaker ethical propensity’, a ‘lower level of moral attentiveness’ and were more inclined to self-enhancement than those intending to work for government or individuals. (P. 249-50.) The authors contend:
Given that different career intentions are associated with different kinds of ethical identity; our results suggest that the pull of the legal profession may have more of an effect on ethical identity than any socialising effects from the push of legal education. (P. 256.)
What direction the profession ‘pulls’ law students in development of their ethical identity – specifically, how law firms ‘signal their own ethical identities’ (P. 258) —is an issue we must then expressly address with our students. Finally, there’s the strong impact of gender. By all their many indicators ‘female respondents’ showed ‘a greater disposition to behave ethically.’ (P. 250.) The authors conclude that:
… our results suggest that the strongest influences on ethical identity are external to or only peripherally related to legal education. The ethical identity of law students as a body is heavily influenced by the innate characteristics of the students. (P. 256-7.)
These results could inspire us to think more about the impact and potential of the student body we are educating, and what they bring to the ethical conversation.
- Elizabeth Chambliss, Whose Ethics? The Benchmark Problem in Legal Ethics Research, in Lawyers in Practice: Ethical Decision Making in Context 47, 48 (L. Levin, & L. Mather eds., 2012)
- Eli Wald & Russ Pearce, Making Good Lawyers, 9 U. St. Thomas L. J. 403 (2011), available at SSRN.
- Margaret Thornton, The New Knowledge Economy and the Transformation of the Law Discipline, 19 IJLP 265 (2012), available at SSRN.
- Elizabeth Mertz, The Language of Law School (2007).