Learning to feel like a lawyer: law teachers, sessional teaching and emotional labour in legal education

ABSTRACT

Contemporary higher education, including legal education, incorporates complexities that were not identified even a decade ago. Law programs first moved from traditional content-focussed programs toward incorporating critique and legal skills. Many are now working toward recognising inclusion and student wellbeing as integral to law graduates’ professional identities and skillsets. Yet the professional dispositions law teachers require to teach in these environments are ostensibly at odds with traditional lawyering identities founded upon an ideal of rationality that actively disengaged from affect. This article draws on our teaching experience and data drawn from the Smart Casual project, which designed self-directed professional development modules for sessional law teachers, to identify the limits of a traditional teaching skillset in the contemporary Australian tertiary law teaching context. We argue that contemporary legal education demands considerable emotional labour and we present sample contexts which highlight the challenges law teachers face in doing what is expected of them. The article makes explicit the emotional labour that has often been implicit or unrecognised in the role of legal academics in general, and in particular, in the role of sessional legal academics.

KEYWORDS:

• Legal education
• professional development
• emotion
• law schools
• casualisation
• emotional labour

Acknowledgements

The views in this project do not necessarily reflect the views of the Australian Government Office for Learning and Teaching. The authors wish to thank the sessional teachers who participated in the project, Ambelin Kwaymullina, Claire Nettle and finally, the editors and anonymous referees of the Griffith Law Review.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Mary Heath, Professor, College of Business, Government and Law, Flinders University, has published in legal education, criminal law and legal philosophy. In 2006, she was awarded a Carrick Citation and a Carrick Award for Australian University Teaching. At Flinders Law School she has served multiple terms as Associate Dean (Teaching), served on multiple education-focused committees at school, faculty and institutional level and served as a reference group member for nationally-funded legal education projects.

Kate Galloway, Associate Professor, Faculty of Law, Bond University, specialises in property law and legal education. She is a nationally recognised law teacher whose teaching is informed by both her scholarship and her experience as a solicitor in private practice and in a native title representative body. She was the inaugural co-convenor of the Legal Education Associate Deans (LEAD) Network. Kate publishes and presents both in Australia and internationally in academic, professional and community contexts. Her work encompasses legal education, property – particularly land tenure, sustainability, social justice and gender equality. She is the deputy editor of the Legal Education Review, and the Queensland editor of the Alternative Law Journal. In addition to her academic writing, Kate contributes regularly to various media outlets as a commentator on contemporary social justice issues, especially concerning gender equality. She is active on social media, blogging at https://kategalloway.net/.

Natalie Skead, School of Law, The University of Western Australia; Dean and Associate, has published extensively in the areas of legal education, property law and equity, has won numerous faculty and university teaching awards and was awarded an ALTC Citation in 2011. She has been involved in several UWA teaching and learning professional development initiatives, including the national award-winning CATLysts Network delivering teaching workshops to sessional staff.

Alex Steel, Professor, Faculty of Law, University of New South Wales, Sydney, researches and teaches in criminal law and legal education. His legal education publications range across the pedagogy and regulation of legal education, curriculum design, assessment practices and student well-being. He has received a Commonwealth Government Citation for Outstanding Contributions to Student Learning (2015) and numerous university and discipline awards. He is an inaugural UNSW Scientia Education Fellow and member of the UNSW Academic Board, previously serving as Associate Dean for the Law Faculty, and as co-convenor of the Legal Education Associate Deans (LEAD) Network. Alex is the Consultant to the Australian Law School Standards Committee, member of the Executive of the Australasian Law Teachers Association and member of the Editorial Committee of the Legal Education Review.

Mark Israel, Adjunct Professor, Flinders University and University of Western Australia, and Senior Consultant, Higher Education Evaluation & Development (HEED) Consultancy has published extensively in higher education, research ethics, criminology and socio-legal studies. Mark won the Prime Minister’s Award for University Teacher of the Year in 2004 and the American Society of Criminology’s inaugural Teaching Award in 2010. He is a Fellow of the Academy of Social Sciences in the U.K., Higher Education Academy and was a Teaching Fellow (2009) and a Discipline Scholar (2010) of the ALTC, as well as a member of the ALTC funded 3DVLE Project Team.

ORCID

Mary Heath http://orcid.org/0000-0001-6800-9317

Kate Galloway http://orcid.org/0000-0002-8047-1210

Natalie Skead http://orcid.org/0000-0002-8866-5167

Alex Steel http://orcid.org/0000-0001-7442-6352

Notes

1 Lerner (2011), p 163.

2 Keyes and Johnstone (2004), p 542.

3 Meltsner (1983), p 624.

4 Meltsner (1983), p 624, citing a personal communication with David Kaplan.

5 See, for example, Bender (1990); Lerner (2011), p 172, ‘teaching our law students that the members of their profession that they should seek to emulate are dispassionate analytical machines is to do them a disservice’.

6 This literature is discussed below.

7 Weisbrot (2001); Keyes and Johnstone (2004); Field and Duffy (2012); Howieson (2011).

8 Hochschild (1983), p 7.

9 Ethics clearance for the Smart Casual 1 project has been granted by the Low Risk Human Research Ethics Review Group (Faculty of Humanities and Social Sciences and Faculty of the professions) Adelaide University, approval no: HP-2013-080. Ethics clearance for the Smart Casual 2 project has been granted by the Social and Behavioural Ethics Committee of Flinders University, project 6866.

10 Herbert et al (2002).

11 Cowley (2010), pp 28–29. See also Percy et al (2008), p 4.

12 Heath et al (2015).

13 Wimpenny and Savin-Baden (2013); Easteal (2008).

14 For an overview of these ‘broader contexts’, see e.g. Steel (2013).

15 Wimpenny and Savin-Baden (2013), pp 321, 325.

16 Hochschild (1983), p 7.

17 Hochschild (1983), p 7.

18 Ogbonna and Harris (2004).

19 James (1989).

20 Hochschild (1983); Constanti and Gibbs (2004), p 247.

21 Constanti and Gibbs (2004), p 247.

22 Hatzinikolakis and Crossman (2010), p 431.

23 Chowdhry (2014), p 568; Constanti and Gibbs (2004), pp 245–246.

24 Bagilhole and Goode (1998); Ogbonna and Harris (2004); Hatzinikolakis and Crossman (2010), p 429; Bellas (1999); Chowdhry (2014).

25 Koster (2011), p 69.

26 Koster (2011), p 69.

27 Koster (2011), p 61.

28 Constanti and Gibbs (2004), p 247; Hatzinikolakis and Crossman (2010), p 429.

29 Koster (2011), p 63; Ogbonna and Harris (2004); Hawk and Lyons (2008).

30 Zurbriggen (2011); Carello and Butler (2014).

31 See eg Kelk et al (2009), p 20.

32 Willis and Leiman (2013), p 688. This is reflected in the professional skill outlined in TLO 6, Self Management – see Kift et al (2010); Field et al (2014).

33 Townes-O’Brien et al (2011).

34 Hatzinikolakis and Crossman (2010), p 428.

35 Hagenauer and Volet (2014).

36 Abery and Gunson (2016).

37 Hagenauer and Volet (2014).

38 Barton and Westwood (2011), p 235; Duncan (2011), p 257.

39 Zurbriggen (2011).

40 Hatzinikolakis and Crossman (2010), p 428.

41 Mountz et al (2015), p 16.

42 Koster (2011), p 69.

43 Hatzinikolakis and Crossman (2010), p 431.

44 Galloway and Bradshaw (2010); Bagilhole and Goode (1998); Heath et al (2017); Koster (2011).

45 The project modules can be found online at https://smartlawteacher.org/available-modules/.

46 The first three modules in the project dealt with Problem-solving in law, Engagement and Feedback. They can be found in their current forms at https://smartlawteacher.org/available-modules/.

47 Kift et al (2010), 6. The Juris Doctor Threshold Learning Outcomes endorsed by the Committee of Australian Law Deans can be found at http://www.cald.asn.au/assets/lists/ALSSC%20Resources/JD%20TLOs%20(March%202012)%20Andrew%20Kenyon.pdf.

48 In the pilot project, 2 focus groups were held on campus at Flinders University, each attended by 3 sessional law teachers. Two other teachers provided written feedback. Two focus groups were conducted at UWA with 11 participants in total. Three others supplied written comments. Two focus groups were run at Adelaide University, with a total of 11 participants. In the subsequent project, 5 focus groups were held (one at each of James Cook University, Flinders University, University of Adelaide, University of NSW and the University of Western Australia).

49 Research ethics approvals are listed in footnote 9.

50 For the pilot project: 28 sessional law teachers were recruited at the institutions engaged in the pilot project: Flinders University, University of Adelaide and University of Western Australia. They were paid award rates for their time. Six focus groups, ranging from 45 to 60 minutes, were conducted in 2014. Focus group participants were asked to comment on the modules as they related to their teaching experience in law. The questions were structured around four main topics: (1) module content and utility for sessional teachers; (2) format (including accessibility); (3) areas for improvement and (4) additional content/topics with which sessional teachers require assistance. Thirty-three participants for the second trial and evaluation were recruited from sessional law teachers at James Cook University, Flinders University, University of Adelaide, University of NSW and the University of Western Australia. The question schedule guiding focus group leaders asked: How long did it take to complete the modules? Did you find the modules to be accessible and user-friendly? How useful do you think the modules are for facilitating teacher development? To what extent were the modules relevant to your teaching experience? Did you find the discipline-specific approach more or less useful than generic teacher development? The modules incorporate a number of key themes: Internationalisation, Digital literacy, Gender, and Diversity. What is your evaluation of the integration of these themes in the modules? How could the modules be improved? Are you aware of any additional resources that would complement the modules? Please provide details. How useful would you find a private Facebook group as a support for these modules? What promotional materials or strategies would assist in making these resources widely available? What topics would you suggest for additional modules?

51 For an overview of the movement for wellness in Australian law schools, see Field et al (2016).

52 Easteal (2008); Wimpenny and Savin-Baden (2013).

53 Steel (2013).

54 Falk (2005).

55 Stubbs (1995).

56 Heath and Humphreys (2015); Heath (2005).

57 Thornton (1994).

58 Thornton (1994); Galloway and Jones (2014).

59 Townes-O’Brien et al (2011).

60 See eg discussion Barnett et al (2007).

61 Shirley (2011); Silver et al (2004); Way et al (2004).

62 See eg Kelk et al (2009); Helm (2014); Kendall (2011).

63 Kelk et al (2009).

64 See eg Field et al (2016); Larcombe et al (2015); Skead and Rogers (2014).

65 Parker (2014).

66 Townes-O’Brien et al (2011); Lester et al (2011); Sheldon and Krieger (2007).

67 Field and Kift (2010), Skead and Rogers (2014).

68 Dresser (2005).

69 Field and Kift (2010), p 67.

70 See, eg, a synthesis of the literature translated into practical strategies in the Good Practice Guide written by Baron et al (2013).

71 See, eg, Field (2014); Field and Duffy (2012); Howieson (2011); Field and Kift (2010).

72 A pilot study led by Pauline Collins is under analysis and another led by Colin James and Rachael Field also in progress.

73 See eg Bromberger (2010); Galloway et al (2011); Galloway and Bradshaw (2010); Hess (2002).

74 Enhancing Student Wellbeing: Resources for University Educators, http://unistudentwellbeing.edu.au.

75 Heath et al (2015).

76 Tweedie (2013); May et al (2013); Briar and Junor (2012); Gottschalk and McEachern (2010).

77 Percy et al (2008); Cowley (2010); Ryan et al (2013), p 165.

78 Ryan et al (2013), p 165.

79 Percy et al (2008); Cowley (2010).

80 These interactions may be deemed to be a part of the lecture hourly rate in Enterprise Agreements. See, for example, https://www.hr.unsw.edu.au/services/indrel/Academic_EA_2015_Final.pdf p 62.

81 May et al (2013), p 19.

82 Percy et al (2008), p 18.

83 Percy et al (2008), p 18.

84 BLASST: Benchmarking Leadership and Advancement of Standards for Sessional Teaching (http://blasst.edu.au/index.html).

85 Percy et al (2008), p 18.

86 See, for example, this statement from TEQSA: ‘Unusually high reliance on casual staff poses risks for the quality of the student experience, and TEQSA will investigate where high reliance on casual staff is combined with data indicating lower student outcomes. TEQSA does not set a threshold for the ratio of ongoing staff to casual staff, except for the purpose of risk assessment. Findings are made after considering contextual factors including qualifications, experience and depth of scholarship in academic leaders and the nature of the field.’ http://www.teqsa.gov.au/hesf-domain-3-teaching.

87 Beard et al (2007); see overview in Bromberger (2010); Del Mar (2011), p 177.

88 Mezirow (2000).

89 Watson (1996).

90 Wimpenny and Savin-Baden (2013).

91 James (2013).

92 Niedwicki (2006), p 40.

93 Kift et al (2010), p 6; Law Admissions Consultative Committee (2011), pp 1–2.

94 Zalesne and Nadvorney (2011).

95 Zalesne and Nadvorney (2011), p 269; Galloway and Bradshaw (2010), pp 103–105.

96 Tinto (2012); Nelson (2014), pp 9–10.

97 Van Dinther et al (2011); Komarraju and Nadler (2013).

98 Zalesne and Nadvorney (2011), p 268.

99 Zalesne and Nadvorney (2011), p 268.

100 Israel et al (2016).

101 O’Shea (2016).

102 Zalesne and Nadvorney (2011), p 268.

103 This takes form, for example, through bans on electronic devices in the classroom. See recently, Williams (2017). Such bans may well be necessary in schools to prevent task switching and increase concentration (see eg Gazzaley and Rosen 2016), but at tertiary level adult learners can expect teachers to be aware of the broader life issues we discuss.

104 A recent study showed that while some students used devices to defray boredom, 37.1 per cent of respondent students used their electronic devices to monitor an emergency. See McCoy (2016).

105 See Mangan (2016).

106 Zalesne and Nadvorney (2011), p 270.

107 See, for example, Suárez-Orozco et al (2015), p 157.

108 Israel et al (2016); see also Steel et al (2013), pp 30–55; Huggins (2012), pp 683–716.

109 The quote is taken from a qualitative interview with an Indigenous law student excerpted in Stevens et al (2006), p 10.

110 Wildman (1995), p 91, points out that ‘[a]nalyzing privilege is complicated by the reality that one individual may be privileged in one respect and not in another. … each of us lives at the juncture of privilege and subordination. We may be privileged in some respects while being subordinated in others.’ See also Kennedy (2007), pp 1–7.

111 See, for example, Falk (2005); Crenshaw (1988).

112 Asmar (2005).

113 Heath (2005). See also Australian Human Rights Commission (2017).

114 Stevens et al (2006), p 10.

115 Kennedy (2007), p 2.

116 The professional development modules created for the project include videos from sessional teachers speaking about their quality teaching practices. Each interview was unique and addressed to the expertise of the teacher as well as to the focus of the modules and themes. Ethics approval for use of the video content in subsequent publications was granted (see footnote 9). Each participant cited has provided consent for the de-identified use of their statements.

117 Comments from student evaluation of teaching, used pursuant to institutional ethics approval H6714.

118 See, for example, Haddad and Lieberman (2002); Webber (2005); Pitt (1997).

119 See Kennedy (2007).

120 ‘[N]euroatypical most often indicates persons on the autism spectrum but has also been used to refer to persons with mood disorders and traumatic brain injuries … ’ Price (2010), p 121. For the learning needs of neuroatypical university students, see Richdale and Cai (2016).

121 See, for example, insights into staff perceptions of student behaviours, in Mangan (2016).

122 See the case study at Stevens et al (2006), pp 15–17; Richdale and Cai (2016).

123 See, for example, Tienda (2013).

124 See, for example, Ball (2012).

125 Ball (2012); James (2004).

126 Brookfield (1995) addresses the role of power in the classroom.

127 Kennedy (2007).

128 Gay, lesbian, bisexual, trans, queer, questioning, intersex, or asexual.

129 Boring et al (2016).

130 Mountz et al (2015); Parker (2014); Thornton (2016), pp 42–50.

131 Jackson et al (2013).

132 Percy et al (2008).

133 Blasst: Benchmarking Leadership and Advancement of Standards for Sessional Teaching, http://blasst.edu.au/index.html.

134 Shirley (2011); Silver et al (2004); Way et al (2004).

Additional information

Funding

Support for this project has been provided by the Australian Government Office for Learning and Teaching [ID14-4320]. This work was also supported by Law Foundation of South Australia [A510-3.16] and the Law Society of Western Australia [PPT Ref 2-17].