Moral Judgment of Law Students Across Three Years: Influences of Gender, Political Ideology and Interest in Altruistic Law Practice

S INT'L 1930A (1999). 66. T. SHAFFER & R. REDMOUNT, LAWYERS, LAW STUDENTS AND PEOPLE (1977); G. Rathjen, The Impact of Legal Education on the Beliefs, Attitudes and Values of Law Students, 44 TENN. L. REV. 85 (1976); J. Hedegard, Causes of Career-Relevant Interest Changes Among First Year Law Students: Some Research Data, 3 AM. B. FOUND. RES. J. 787 (1982); J. Hedegard, The Impact of Legal Education: An In-Depth Examination of Career Relevant Interests, Attitudes and Personality Traits Among FirstYear Law Students, 4 AM. B. FOUND. RES. J. 791 (1979). 67. See Granfield & Koenig, supra note 4. 68. Bebeau, supra note 41, at 131. [Vol. 45:891 MORAL JUDGMENT OF LAW STUDENTS purported amoral character. Cramton and others following his lead have argued that the absence of moral considerations in the standard legal pedagogy encourages or fosters a "moral relativism tending toward nihilism, a pragmatism tending toward an amoral institutionalism, a realism tending toward cynicism, an individualism tending toward atomism, and a faith in reason and democratic process tending toward mere credulity and idolatry."69 A classic, if apocryphal, story concerns the first year student, discussing the outcome of a particular contracts case. The student asks the professor: "Is that just?" and the professor replies, "We are here to study the law, we are not concerned with justice." Others, such as Menkel-Meadow, argue that since we cannot avoid conveying a moral stance in our teaching, we should be conscious about fostering moral development in our students.0 If one places these criticisms within the Kohlbergian moral context, one might make the claim that as lawyers, the ethics of advocacy are at best a form of conventional moral judgment and that legal education may, in fact, make our students reason at a lower moral level than we might prefer. If the majority of lawyers use the professional norms as a default position, then the rules become the norms to be maintained. The following of professional rules, without any further moral justification, is similar to obeying an unjust law without giving thought to the morality of the action. While following the law or obeying professional rules as a default may be morally correct in many, if not most cases, Granfield shows that mere role governed (i.e. rule governed) morality does not prepare law students for the kind of ethical and moral dilemmas that they will face in practice. X. ETHICS INTERVENTIONS IN LAW SCHOOL We have found that as a group, the moral judgment of law students remains constant over the first year of law school, although the scores for women rise slightly while the men's scores fall. If law students' moral judgment drops during their education, remains constant, or even rises slightly, we would believe there to be a case for implementing law school courses with a demonstrated ability to enhance moral judgment level. This possibility led Willging and Dunn 69. Cramton, supra note 7, at 262. 70. C.L. Menkel-Meadow, Can a Law Teacher Avoid Teaching Legal Ethics?, 41 J. LEGAL EDUc. 3 (1991). 20041 SOUTH TEXAS LAW REVIEW to examine the impact on P-scores of a traditional lecture course in ethics and professional responsibility.7 They found no significant effect whatsoever, as can be seen in Table 4. In contrast, Hartwell found that the teaching of ethics and professional responsibility in small, highly interactive discussion seminars powerfully influenced Pscores.72 Hartwell's results are consistent with other ethics intervention studies that use intense, highly interactive approaches in quarteror semester-long courses.73 Each of the studies cited in Table 4, except Willging and Dunn, used a non-equivalent control group design, in which comparable classes were taught without the key aspects of the ethics intervention. In each case, the control groups showed no significant change.74 Further, in two of these studies, a follow-up experiment conducted four months later showed that the Pscore gains were maintained or even enhanced.75 It is also important to note that the effect sizes reported in Table 4 are large to very large and reflect more powerful approaches to enhancing moral judgment than the alternative teaching methods assessed in the moral education literature. For example, Penn shows that his average effect size is more than twice as powerful as that obtained using the typical educational approach of dilemma discussion.7 1 It seems that we have available powerful methods for enhancing moral judgment levels, and that these can be implemented in the content of existing courses. There is certainly no consensus in the legal academy about whether professional responsibility courses should aspire to have any effect on students' moral judgment or should simply teach the professional rules and norms, or the so-called law of lawyering. Some teachers, such as Venter and Menkel-Meadow, believe that we should teach moral concepts in these courses and that we should aim to develop students' moral judgment.77 Others, like Schneyer, while not embracing an unalloyed "hired gun" approach, have questioned the 71. Willging, supra note 61. 72. Hartwell, supra note 58. 73. S.P. McNeel & J. Frederickson, Being Just in an Unjust World: Moral Education for College Seniors, Paper Presented at the 25th Annual Conference of the Association for Moral Education at University of Minnesota (Nov. 18-21, 1999); W.Y. Penn, Jr., Teaching Ethics-A Direct Approach, 19 J. MORAL EDUC. 124 (1990). 74. Willging, supra note 61. 75. Hartwell, supra note 58; McNeel, supra note 73. 76. Penn, supra note 73. 77. C.M. Venter, Encouraging Personal Responsibility-An Alternative Approach to Teaching Legal Ethics, 56 LAW & CONTEMP. PROBS. 287 (1996); Menkel-Meadow, supra note 70. [Vol. 45:891 MORAL JUDGMENT OF LAW STUDENTS ability of the legal professoriate to consistently define and teach moral judgment.8 The results from both Hartwell and McNeel question this view. Neither are technical experts in philosophical ethics, but both are experienced teachers who clearly have learned a great deal in the practice of teaching. Both seem to have begun teaching the courses evaluated in Table 4 simply in a desire to apply what they do know and can learn from the literature. Further, DIT data on practicing lawyers has potential relevance here. We are aware of data from only three sources. First, Ernest & Bebeaus° found a mean P-score of 48.3 for eighteen lawyers in a single law practice in the northern Midwest.8' This mean is comparable to the reported mean for practicing physicians as well as to that for entering law students described above. Second, in an attempt to get comparative data for accountants, Scofield surveyed a random sample of 1,000 lawyers.' He used the three dilemma version of the original DIT. His response rate was 18.9 percent, with one hundred sixty-nine useable questionnaires. Scofield found a somewhat lower mean Pscore for his lawyer sample of 46.45, but he determined that women scored higher than men. 83 Third, Long studied the comparative P. scores for public interest and private firm lawyers. Long sent 300 requests to participate to attorneys. 8' She obtained 119 viable DITs with the following results: private sector attorneys had a mean P-score of 47.07,85 consistent with Scofield's results, while public sector attorneys had a mean P-score of 53.87, 6 significantly higher, but within the expected range. In summary, we should be able to increase moral judgment in law students by appropriate interventions. Paradoxically, while lawyers' ethics are under attack, their connection with justice and the arguably altruistic nature of at least some law practice suggests higher levels of moral judgment. Studies of lawyers using the DIT may also be 78. Ted Schneyer, Some Sympathy for the Hired Gun, 41 J. LEGAL EDUC. 11 (1991). 79. Hartwell, supra note 58; McNeel, supra note 18. 80. M. Ernest & M.J. Bebeau, Use of Defining Issues Test in Leadership Education, Paper Presented at the 26th Annual Conference of the Association for Moral Education at University of Glasgow, Scotland (July 6-10,2000). 81. This group had a S.D. = 13.8; range = 30-70. 82. S.B. Scofield, Re-examination of the Application of Cognitive Developmental Theory to the Study of Ethics and Socialization in the Accounting Profession, 58 DISSERTATION ABSTRACrS INT'l 3597A (1997). 83. S.D. = 15.42. 84. Long, supra note 36. 85. S.D. 14.07. 86. S.D. 12.35. 2004] SOUTH TEXAS LAW REVIEW important in identifying some of the sources of their low moral esteem and trust.