Abstract

http://ssrn.com/abstract=1988555
 


 



Facing Down the Gladiators: Addressing Law School’s Hidden Adversarial Curriculum


Molly T. O'Brien


ANU College of Law

December 1, 2011

Monash University Law Review, Vol. 37, No. 1, 2011
ANU College of Law Research Paper No. 12-01

Abstract:     
Law students arrive at law school well-indoctrinated in the popular culture myth that the dominant role of the lawyer is as an advocate in an adversarial system. These students, if they become practicing lawyers, will be more likely to fill their days with negotiation than with litigation; they will be more likely to represent a client in mediation than at trial; they will more likely be deal-makers than gladiators. Nevertheless, their preconception or misconception of the dominance of the lawyers’ adversarial role will be reinforced in their legal training.

Adversarialism is deeply embedded in both the formal and the hidden curriculum of US and Australian law schools. While most law schools now teach courses that deal with non-adversarial processes, the pervasive ethos is – often unintentionally – adversarial. This ethos may constrain the way that students conceptualize their future roles and limit the possibility space available to them for creativity, constructive lawyering and peacemaking. The ethos also contributes to a climate of the law school hostile and unhappy for many students.

This paper explores the law school’s hidden adversarial curriculum – the unstated norms and values that are communicated to students. It uncovers some of the unintended messages sent through choices of teaching materials, classroom pedagogy, assessment practices, and extra-curricular emphasis on contests. The paper suggests that, by addressing the hidden curriculum, law schools can create more space for constructive lawyering and better prepare students for the variety of roles that they may inhabit as lawyers (including roles as advocates in adversarial processes). It will suggest that to provide greater room for non-adversarialism in law school and in legal practice, legal education must import non-adversarial processes and materials into its pedagogy; it must provide broader measures of student merit; and it must take control over the law school contest culture.

Number of Pages in PDF File: 15

Accepted Paper Series


Download This Paper

Date posted: January 20, 2012  

Suggested Citation

O'Brien, Molly T., Facing Down the Gladiators: Addressing Law School’s Hidden Adversarial Curriculum (December 1, 2011). Monash University Law Review, Vol. 37, No. 1, 2011; ANU College of Law Research Paper No. 12-01. Available at SSRN: http://ssrn.com/abstract=1988555

Contact Information

Molly Townes O'Brien (Contact Author)
ANU College of Law ( email )
Canberra, Australian Capital Territory Territory 0200
Australia
02-6125-0437 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 979
Downloads: 98
Download Rank: 158,923

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.281 seconds