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Transforming legal education through emotions

Published online by Cambridge University Press:  31 July 2018

Emma Jones*
School of Law, The Open University, Milton Keynes, UK
*Author email:


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.

Research Article
Copyright © The Society of Legal Scholars 2018 

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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.


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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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6 For a discussion of the importance of science in the context of US legal education see M Nussbaum ‘Use and abuse of philosophy in legal education’ (1993) 45 Stanford Law Review 1627 who states (at 1629) ‘The conception of legal education that still dominates the legal academy today is a conception borrowed from the sciences’.

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24 See for example Sanders, APoor 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, DWInterdisciplinarity 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, DLegal 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, CTraining 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, SJLaw school as liberal education’ (2013) 63 Journal of Legal Education 235Google Scholar; Green, K and Lim, HA lib-lib pact: silences in legal education’ (1987) 21 The Law Teacher 256 at 256CrossRefGoogle Scholar.

32 Guth and Ashford, above n 13, at 6; Clark, above n 31; Bradney, AEnglish university law schools, the age of austerity and human flourishing’ (2011) 18 International Journal of the Legal Profession 59CrossRefGoogle Scholar; Burridge, R and Webb, JThe values of common law legal education: rethinking rules, responsibilities, relationships and roles in the law school’ (2007) 10 Legal Ethics 72CrossRefGoogle Scholar; Collier, RThe liberal law school, the restructured university and the paradox of socio-legal studies’ (2005) 68 Modern Law Review 475CrossRefGoogle Scholar; Brownsword, RLaw schools for lawyers, citizens and people’ in Cownie, F (ed) The Law School: Global Issues, Local Questions (Aldershot: Ashgate Publishing, 1999)Google Scholar; Nussbaum, M Cultivating Humanity A Classical Defense of Reform in Liberal Education (Cambridge, Massachusetts: Harvard University Press, 1997)Google Scholar; Bradney, ARaising the drawbridge: defending university law schools’ (1995) 1 Web Journal of Current Legal IssuesGoogle Scholar; Newman, JH The Idea of a University Defined & Illustrated I. In nine discourses delivered to the Catholics of Dublin II. In Occasional Lectures and Essays Addressed to the Members of the Catholic University (London: Routledge, 1994)Google Scholar.

33 Cotterrell, above n 23, at 634; Brownsword, RWhere are all the law schools going?’ (1996) 30 The Law Teacher 1 at 7CrossRefGoogle Scholar; Mosesson, LAre we asking the right questions?’ (1990) 20 The Law Teacher 16 at 18CrossRefGoogle Scholar.

34 Bradney (1995), above n 32; see also Burridge and Webb, above n 32 and Burridge, R and Webb, JThe 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, ADilemmas 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, HWHalf 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, GLiberal 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, TMindfulness-based interventions and the affective domain of education’ (2014) 40 Educational Studies 277CrossRefGoogle Scholar; Lynch, KCarelessness: a hidden doxa in higher education’ (2010) 9 Arts & Humanities in Higher Education 54CrossRefGoogle Scholar; Grummell, B, Devine, D and Lynch, KThe 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, KROn the rationality of emotions: or, when are emotions rational?’ (2011) 50 Social Science Information 330CrossRefGoogle Scholar; Coplan, AFeeling 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, LOn 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, CIntroduction’ in Maharg, P and Maughan, C (eds) Affect and Legal Education. Emotion in Learning and Teaching the Law (Aldershot: Ashgate Publishing, 2011) pp 110, at p 1Google Scholar).

47 See, for example, Coplan, above n 42; Kappas, AAppraisals 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, RNeither 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, JRIntelligence, 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 277298Google Scholar; Lazarus, RSOn 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, AFlavours of appraisal theories of emotion’ (2014) 6 Emotion Review 303CrossRefGoogle Scholar; Ellsworth, PCAppraisal theory: old and new questions’ (2013) 5 Emotion Review 125CrossRefGoogle Scholar; Oatley et al, above n 2, at pp 165–190.

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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 (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, AGothic 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 (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, LCThe 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.

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

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78 See for example Vanistendael, HDesigning a humanistic legal education’ (2009) 3 European Journal of Legal Education 59CrossRefGoogle Scholar; Maharg, PRogers, constructivism and jurisprudence: educational critique and the legal curriculum’ (2000) 7 International Journal of the Legal Profession 189CrossRefGoogle Scholar.

79 This is epitomised by the work of a key contributor to the humanist tradition, Carl Rogers, in particular in his works Rogers, CRPersonal thoughts on teaching and learning’ (1957) 3 Merrill-Palmer Quarterly 243Google Scholar; Rogers, CR Freedom to Learn for the 80s (New York: Macmillan, 1983)Google Scholar; see also Postle, DPutting heart back into learning’ in Boud, D, Cohen, R and Walker, D (eds) Using Experience for Learning (Bristol, PA: Society for Research in Higher Education, 1993)Google Scholar; Heron, J Feeling and Personhood. Psychology in Another Key (London, Sage Publications, 1992)Google Scholar.

80 Knowles, M The Modern Practice of Adult Education: From Pedagogy to Andragogy (Engelwood Cliffs, Cambridge Adult Education, 1984) pp 5556Google Scholar; see also McIntosh, AHumanist learning theories’ in McKintosh-Scott, A, Gidman, J and Mason-Whitehead, E (eds) Key Concepts in Healthcare Education (London: Sage Publications, 2010)Google Scholar.

81 Gregory, JExperiential learning’ in Jarvis, P (ed) The Theory and Practice of Teaching (Abingdon: Routledge, 2nd edn, 2006) p 114 at p 115Google Scholar.

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.

83 Pekrun, R and Linnenbrink-Garcia, LIntroduction to emotions in education’ in Pekrun, R and Linnenbrink-Garcia, L (eds) International Handbook of Emotions in Education (London and New York: Routledge, 2014) p 1Google Scholar.

84 Collaborative for Academic, Social and Emotional Learning What is Social and Emotional Learning? (2015), available at (last accessed 5 July 2018); see also Elias, MJ Academic and Social-Emotional Learning. Educational Practices Series – 11 (Chicago: International Academy of Education and International Bureau of Education, 2003)Google Scholar.

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86 Durlak, JA et al. ‘The impact of enhancing students’ social and emotional learning: a meta-analysis of school-based universal interventions’ (2011) 82 Child Development 405 at 417CrossRefGoogle ScholarPubMed; see also Payton, J et al. The Positive Impact of Social and Emotional Learning for Kindergarten to Eight-grade Students. Findings from Three Scientific Reviews (Chicago: Collaborative for Academic, Social, and Emotional Learning, 2008)Google Scholar; National Institute for Health Clinical Excellence Promoting Children's Social and Emotional Wellbeing in Primary Education (2008) 12, available at (last accessed 5 July 2018).

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 (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, WWorking 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 (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 (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 (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 (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, KEmotionally-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, FKnowing me, knowing you: the rise of therapeutic professionalism in the education of adults’ (2005) 37 Studies in the Education of Adults 182CrossRefGoogle Scholar; Ecclestone, KLearning or therapy? The demoralisation of education’ (2004) 52 British Journal of Educational Studies 112CrossRefGoogle Scholar; Ecclestone, KDeveloping 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, KAcknowledging 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, KAValuing and nurturing multiple intelligences in legal education: a paradigm shift’ (2005) 11 Washington and Lee Race and Ethnic Ancestry Law Review 1Google Scholar; James, CSeeing things as we are. Emotional intelligence and clinical legal education’ (2005) 9 International Journal of Clinical Legal Education 123Google Scholar; Weinstein, LTesting multiple intelligences: comparing evaluation by simulation and written exam’ (2002) 8 Clinical Law Review 247Google Scholar; Silver, MAEmotional intelligence and legal education’ (1999) 5 Psychology, Public Policy and Law 1173CrossRefGoogle Scholar.

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105 Smith, A and Webster, FChanging 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 (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, MLegal education in the corporate university’ (2014) 10 The Annual Review of Law and Social Science 19CrossRefGoogle Scholar; Collier, RPrivatizing 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, MThe 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, KNeoliberalism and marketisation: the implications for higher education’ (2006) 5 European Education Research Journal 1CrossRefGoogle Scholar; Collier, RThe liberal law school, the restructured university and the paradox of socio-legal studies’ (2005) 68 Modern Law Review 475CrossRefGoogle Scholar; Thornton, MGothic horror in the legal academy’ (2005) 14 Social & Legal Studies 267CrossRefGoogle Scholar; Thornton, MAmong the ruins: law in the neo-liberal academy’ (2001a) 20 Windsor Yearbook of Access to Justice 3Google Scholar; Thornton, MThe demise of diversity in legal education: globalisation and the new knowledge economy” (2001b) 8 International Journal of the Legal Profession 37CrossRefGoogle Scholar.

107 Joshee, RNeoliberalism 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, RMNeoliberalism, new public management and the sustainable development agenda of higher education: history, contradictions and synergies’ (2015) 21 Environmental Education Research 417CrossRefGoogle Scholar; Ball, MLearning, 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 (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 (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, DPromoting employability skills development in a research-intensive university’ (2010) 52 Education + Training 62Google Scholar; Boden, R and Nedeva, MEmploying discourse: universities and graduate “employability”’ (2010) 25 Journal of Education Policy 37CrossRefGoogle Scholar; Cranmer, SEnhancing graduate employability: best intentions and mixed outcomes’ (2006) 31 Studies in Higher Education 169CrossRefGoogle Scholar; Drummond, I, Nixon, I and Wiltshire, JPersonal transferable skills in higher education: the problems of implementing good practice’ (1998) 6 Quality Assurance in Education 19CrossRefGoogle Scholar.

113 In 1965 it was reported that a total of 23 law schools in the UK were offering full degrees (Wilson, JFSurvey of legal education in the United Kingdom’ (1966) 9 Journal of the Society of Public Teachers of Law (NS) 1, at 13Google Scholar). By 1975 this had risen to 30 universities and 19 polytechnics and other institutions maintained by local authorities (Wilson, JF and Marsh, FBA second survey of legal education in the United Kingdom’ (1975) 13 Journal of the Society of Public Teachers of Law (NS) 239 at 243Google Scholar). In 2013 it was reported that there were over 600 qualifying law degree courses being offered across the UK and the Republic of Ireland: Legal Education and Training Review Setting Standards. The Future of Legal Services Education and Training Regulation in England and Wales (2013) para 2.11, available at (last accessed 5 July 2018).

114 Quality Assurance Agency Subject Benchmark Statement Law (2015) p 8, available at (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, LMarketizing 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, MNeoliberalism, 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, JDEmotional 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, REmotional 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 33633389Google 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, LThe 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, LMultiple intelligences, the Mozart effect and emotional intelligence: a critical review’ (2006) 41 Educational Psychologist 207CrossRefGoogle Scholar; Waterhouse, LInadequate evidence for multiple intelligences, the Mozart effect and emotional intelligence theories’ (2006) 41 Educational Psychologist 247CrossRefGoogle Scholar.

125 See for example Maguire, R et al. ‘Engaging students emotionally: the role of emotional intelligence in predicting cognitive and affective engagement in higher education’ (2016) Higher Education Research & Development 1Google Scholar; Pertegel-Felices, ML, Castejon-Costa, JL and Jimeno-Morenilla, ADifferences between the personal, social and emotional profiles of teaching and computer engineering professionals and students’ (2014) 39 Studies in Higher Education 1185CrossRefGoogle Scholar; Dacre Pool, L and Qualter, PEmotional self-efficacy, graduate employability, and career satisfaction: testing the associations’ (2013) 65 Australian Journal of Psychology 214CrossRefGoogle Scholar; Nelis, D et al. ‘Increasing emotional competence improves psychological and physical well-being, social relationships, and employability’ (2011) 11 Emotion 354CrossRefGoogle ScholarPubMed.

126 Montgomery, JEIncorporating 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, ABMaking law students healthy, skillful and wise’ (2005) 56 New York Law School Review 487Google Scholar; Cain, PJA 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, CLawyer 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 6263CrossRefGoogle 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.

138 Rigg, DEmbedding employability in assessment: searching for the balance between academic learning and skills development in law: a case study’ (2013) 47 The Law Teacher 404 at 410CrossRefGoogle Scholar.

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140 Brayne, H, Duncan, N and Grimes, R Clinical Legal Education. Active Learning in your Law School (London: Blackstone Press, 1998)Google Scholar.

141 See n 62 above; see also Nicolson, DCalling, character and clinical legal education: a cradle to grave approach to inculcating a love for justice’ (2013) 16 Legal Ethics 36CrossRefGoogle Scholar; Brooks, SLPracticing (and teaching) therapeutic jurisprudence: importing social work principles and techniques into clinical legal education’ (2006) 17 St Thomas Law Journal 513Google Scholar; Brooks, SLUsing therapeutic jurisprudence to build effective relationships with students, clients and communities’ (2006) 13 Clinical Law Review 213Google Scholar.

142 Hall, J and Kerrigan, KClinic and the wider law curriculum’ (2011) 16 International Journal of Clinical Legal Education 25Google Scholar.

143 Dodge, R et al. ‘The challenge of defining wellbeing’ (2012) 2 International Journal of Wellbeing 222CrossRefGoogle Scholar. At its broadest, it can include physical, psychological and spiritual health and social connectedness and there is evidence that all of these elements are linked, see for example Skread, NK and Rogers, SLDo law students stand apart from other university students in their quest for mental health: A comparative study on well-being and associated behaviours in law and psychology students’ (2015) 42–43 International Journal of Law and Psychiatry 81CrossRefGoogle Scholar; Skread, NK and Rogers, SLStress, anxiety and depression in law students: how student behaviours affect student wellbeing’ (2014) 40 Monash University Law Review 564 at 565Google Scholar; Galloway, K et al. ‘Approaches to student support in the first year of law school’ (2011) 21 Legal Education Review 235 at 247Google Scholar; Tani, M and Vines, PLaw students' attitudes to education: pointers to depression in the legal academy and the profession?’ (2009) 19 Legal Education Review 3 at 25Google Scholar; Kelk, N et al. Courting the Blues: Attitudes Towards Depression in Australian Law Students and Lawyers (Sydney: Brain & Mind Research Institute, 2009) p 3Google Scholar; Sheldon, KS and Krieger, LSUnderstanding the negative effects of legal education on law students: a longitudinal study of self-determination theory’ (2007) 33 Personality and Social Psychology Bulletin 883 at 885CrossRefGoogle ScholarPubMed; Siptroth, SMForming the human person: can the seminary model save the legal profession?’ (2007) 1 Brigham Young University Education and Law Journal 181 at 181Google Scholar; Glesner, BAFear and loathing in the law schools’ (1991) 23 Connecticut Law Review 627 at 631Google Scholar.

144 Bradburn, N The Structure of Psychological Well-being (Chicago: Aldine, 1969)Google Scholar.

145 J Beaumont Measuring National Well-being – Discussion Paper on Domains and Measures (Office for National Statistics, 2011)p 5, available at (last accessed 5 July 2018).

146 Eger, RJ and Maridal, JHA statistical meta-analysis of the wellbeing literature’ (2015) 5 International Journal of Wellbeing 45 at 46CrossRefGoogle Scholar.

147 Although a number of UK studies specifically in relation to legal education appear to be underway, at the time of writing, only two published pieces of relevance could be located. The most recent is Strevens, C and Wilson, CLaw student wellbeing in the UK: a call for curriculum intervention’ (2016) 11(1) Journal of Commonwealth Law and Legal Education 44Google Scholar, which focuses on the use of self-determination theory. An earlier piece is a study by P Childs Autonomy and the Ability to Learn Project Report (2004). However, the limited number of participants (24) and restricted focus make it of little value in considering emotional well-being in the law school more widely. For studies on student well-being generally see Macaskill, AThe mental health of university students in the United Kingdom’ (2013) 41 British Journal of Guidance and Counselling 426CrossRefGoogle Scholar; Ansari, WE et al. ‘Feeling healthy? A survey of physical and psychological wellbeing of students from seven universities in the UK’ (2011) 8 International Journal of Environmental Research and Public Health 1308CrossRefGoogle ScholarPubMed; Royal College of Psychiatrists Mental Health of Students in Higher Education, College Report CR166 (2011), available at (last accessed 4 July 2018); M Yorke and B Longden The First-year Experience of Higher Education in the UK (The Higher Education Academy, 2008), available at (last accessed 5 July 2018).

148 Bradney, ACan there be commensurability in comparative legal education?’ (2007) 1 Canadian Legal Education Annual Review 67Google Scholar.

149 Dresser, LPromoting psychological health in law students’ (2005) 24 Legal Reference Services Quarterly 41 at 42CrossRefGoogle Scholar.

150 See for example Hedegard, MThe impact of legal education: an in-depth examination of career-relevant interests, attitudes, and personality traits among first-year law students’ (1979) 4 American Bar Foundation Research Journal 791Google Scholar; Solkoff, NThe use of personality and attitude tests in predicting the academic success of medical and law students’ (1968) 43 Journal of Medical Education 1250Google ScholarPubMed.

151 Shanfield, S and Benjamin, GAHPsychological 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, DNWhat predicts adjustment among law students? A longitudinal panel study’ (2003) 143 The Journal of Social Psychology 727CrossRefGoogle Scholar.

156 Council of Australian Law Deans Promoting Law-Student Well-being. Good Practice Guidelines for Law Schools (2013) (last accessed 12 July 2018); see also

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, KLaw 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, NHealth 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, RWho'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, PSome 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.

166 Skread, NK and Rogers, SLStress, anxiety and depression in law students: how student behaviours affect student wellbeing’ (2014) 30 Monash University Law Review 564 at 566Google Scholar; Dresser, above n 149, at 46; Allen, J and Baron, PButtercup goes to law school. Student wellbeing in stressed law schools’ (2004) 29 Alternative Law Journal 285CrossRefGoogle Scholar.

167 Huggins, AAutonomy supportive curriculum design: a salient factor in promoting law students’ wellbeing’ (2012) 35 University of New South Wales Law Journal 683Google Scholar; Tani and Vines, above n 143, at 31; Sheldon and Krieger, above n 143, at 895; Krieger, LSInstitutional denial about the dark side of law school and fresh empirical guidance for constructively breaking the silence’ (2002) 52 Journal of Legal Education 112Google Scholar. Fitzgerald, MRites of passage. The impact of teaching methods on first year law students’ (2008) 42(1) The International Journal of Legal Education 60Google Scholar found similar issues arising in the Canadian setting, leading her to conclude that each law professor needed to ‘recognize and own their own unique contribution toward helping each lawyer [become] a caring, compassionate, contributing and happy human being’ (at 82).

168 Townes O'Brien, M, Tang, S and Hall, KNo 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, JPromoting 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, KChanging 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, ELSelf-determination theory and the facilitation of intrinsic motivation, social development, and well-being’ (2000) 55 American Psychologist 68CrossRefGoogle ScholarPubMed.

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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, RWLegal 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 (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.

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

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222 Baron, above n 213, at 35.

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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.

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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.

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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, MEngaging law students to promote psychological health’ (2011) 36 Alternative Law Journal 250CrossRefGoogle Scholar; Galloway et al, above n 143, at 247; Krieger, LSHuman 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, GRediscovering 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.

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