Preferential treatment, social justice, and the part-time law student - The case for the value-added part-time law degree

Journal of Law and Society

Volumn 33, Issue 1, 2006, Pages 92-108

  Francis, Andrew M ^a   McDonald, Iain W ^b  

^a KEELE UNIVERSITY   (United Kingdom)

^b UNIVERSITY OF THE WEST OF ENGLAND   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33645152585     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2006.00349.x     Document Type: Article

References (73)

1. See, for example, P. Harris and M. Jones, 'A Survey of Law Schools in the United Kingdom, 1996' (1997) 31 Law Teacher 38;
2. L. Norman, Career Choices in Law: A Survey of Law Students (2004);
3. A. Boon et al., 'Career Paths and Choices in a Highly Differentiated Profession: the Position of Newly Qualified Solicitors' (2001) 64 Modern Law Rev. 563, at 565. In this paper we focus on those registered on face-to-face qualifying law degrees, rather than those studying through distance learning schemes.
4. R. Maynard, 'Are Mature Students a Problem?' (1992) 17 J. of Access Studies 106, at 108,
5. T. Schuller et al, Part-time Higher Education - Policy, Practice and Experience (1999) 19-22.
6. The only reference to part-time students is in s. 31, whereby the Director of Fair Access must seek to identify good practice in full-time and part-time education. See, also, Baroness Ashton, 662 H.L. Debs., col. 561, 14 June 2004.
7. A task which is made all the more difficult by the politically controversial status of affirmative action. See, for example, T. Halpin, 'Universities Get Backing for Bias to State Pupils' Times, 6 April 2004, 4.
8. C. Bacchi, 'Policy and Discourse: Challenging the Construction of Affirmative Action as Preferential Treatment' (2004) 11 J. of European Public Policy 128, at 129.
9. See M. Prosser and K. Trigwell, Understanding Teaching and Learning: The Experience of Higher Education (1999).
10. See H. Rolfe and T. Anderson, 'A Firm Choice: Law Firms' Preferences in the Recruitment of Trainee Solicitors' (2003) 10 International J. of the Legal Profession 315.
11. See D. Swartz, Culture and Power: the Sociology of Pierre Bourdieu (1997) ch. 8.
12. H. Sommerlad, 'The Gendering of the Professional Subject: Commitment, Choice and Social Closure in the Legal Profession' in Legal Feminisms: Theory and Practice, ed. C. McGlynn (1998) 11.
13. D. Nicolson, 'Demography, Discrimination and Diversity: A New Dawn for the British Legal Profession?' (2005) 12 International J. of the Legal Profession 201.
14. See H. Sommerlad and P. Sanderson, Gender, Choice and Commitment: Women Solicitors in England and Wales and the Struggle for Equal Status (1998);
15. C. McGlynn, The Woman Lawyer: Making the Difference (1998);
16. M. Shiner, 'Young, Gifted and Blocked: Entry into the Legal Profession',
17. and S. Vignaendra et al., 'Hearing Black and Asian Voices an Exploration of Identity', both in Discriminating Lawyers, ed. P. Thomas (2000).
18. R. Abel, English Lawyers between Market and State: the Politics of Professionalism (2003) 150.
19. B. Cole, Trends in the Solicitors' Profession: Annual Statistical Report 2003 (2004) 52.
20. id., p. 34.
21. Unfortunately our survey did not elicit further information about grades or schools attended, both of which could further impact on opportunities for entering the profession.
22. Although a recent Law Society study (Norman, Trends in the Solicitors' Profession: Annual Statistical Report 2003 op. cit., n. 1, p. 24) suggests that around 80 per cent of all students surveyed expressed a desire to enter the law, this includes nearly 20 per cent who were not sure in which capacity they would work.
23. See R. Collier, '"Be Smart, Be Successful, Be Yourself? Representations of the Training Contract and the Trainee Solicitor in Advertising by Large Law Firms' (2005) 12 International J. of the Legal Profession 51.
24. See E. Duff et al., Entry into the Legal Professions - the Law Student Cohort Study, Year 6 (2000);
25. T. Goriely and T. Williams, The Impact of the New Training Scheme -Report on a Qualitative Study (1996);
26. Rolfe and Anderson, The Impact of the New Training Scheme -Report on a Qualitative Study op. cit., n. 8;
27. R. Lee, Firm Views: Work in and Work of the Largest Law Firms (1999) 35.
28. Typically this was in an administrative capacity, for example as a legal secretary.
29. See, generally, Nicolson, Firm Views: Work in and Work of the Largest Law Firms op. cit., n. 11.
30. Bacchi, Firm Views: Work in and Work of the Largest Law Firms op. cit, n. 6, p. 138.
31. P. Bourdieu, 'The Force of Law: Toward a Sociology of the Juridical Field' (1987) 38 Hastings Law J. 805, at 820.
32. Sommerlad and Sanderson, Hastings Law J. op. cit., n. 12, p. 103.
33. M. Larson, The Rise of Professionalism: A Sociological Analysis (1977) 70.
34. id., p. 51. Yet, arguably its status and market control were reinforced by barriers to entry which controlled the numbers of professionals (p. 52).
35. Bourdieu, The Rise of Professionalism: A Sociological Analysis op. cit., n. 23, p. 811.
36. R. Nelson and D. Trubek, 'Introduction: New Problems and New Paradigms in Studies of the Legal Profession' in Lawyers' Ideals/Lawyers' Practices: Transformations in the American Legal Profession, eds. R. Nelson et al. (1992) 22.
37. Bacchi, Lawyers' Ideals/Lawyers' Practices: Transformations in the American Legal Profession op. cit., n. 6, p. 129.
38. Bacchi, id., is clear that such an approach, in contrast to conception of affirmative action as preferential treatment, will represent a fundamental challenge to the status quo.
39. Arguably as many of the specific supports of traditional professionalism come under increasing threat, the profession may find it derives new legitimacy from a more thorough interrogation of the basis on which access to the profession is premised (see A. Francis, 'Out of Touch and Out of Time: Lawyers, their Leaders and Collective Mobility Within the Legal Profession' (2004) 24 Legal Studies 322),
40. Bacchi, Legal Studies op. cit., n. 6, suggests that there is a strong consensus around formal equality of opportunity models which leads even advocates of affirmative action to deploy the language of (necessary) preferential treatment.
41. See, further, 〈www.lawsociety.org.uk/documents/downloads/DAS-a guide for students.pdf〉.
42. See Francis, Legal Studies op. cit., n. 31.
43. Cole, Legal Studies op. cit., n. 14, pp. 43-5.
44. See G. Hanlon, Lawyers, the State and the Market: Professionalism Revisited (1999)
45. and J. Griffiths-Baker, Serving Two Masters: Conflicts of Interest in the Modern Law Firm (2002).
46. K. Karst, 'The Revival of Forward-Looking Affirmative Action' (2004) 104 Columbia Law Rev. 60.
47. Grutter, 123 S Ct. 2325 (2003).
48. id., p. 2341,
49. cited in Karst, Grutter op. cit., n. 37, pp. 60-1.
50. However, McGlynn argues that such a strategy may be 'limited and potentially disastrous' in failing to tackle the underlying assumptions of the profession: C McGlynn, 'The Business of Equality in the Solicitors' Profession' (2000) 63 Modern Law Rev. 442, at 455.
51. See, generally, Hanlon, Modern Law Rev. op. cit., n. 36, on the client-led nature of professional services,
52. and Karst, Modern Law Rev. op. cit., n. 37, p. 68.
53. See G. Massey, 'Thinking about Affirmative Action: Arguments Supporting Preferential Policies' (2004) 21 Rev. of Policy Research 783, at 791-2.
54. For example, Pearce v. Governing Body of Mayfield Secondary School [2003] UKHL 34, where the House of Lords failed to allow an accurate comparator to be used in respect of the harassment suffered by a lesbian teacher.
55. See, also, K. Crenshaw, 'Demarginalizing the Inter-section of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Polities' (1989) 89 University of Chicago Legal Forum 139.
56. Disability Discrimination Act 1995 s. 28B(7), as amended by the Special Educational Needs and Disability Act 2001.
57. See HMSO, Post 16 Education Code of Practice (2002) example 4.27B.
58. P. Gaston, 'Reflections on Affirmative Action: Its Origins, Virtues, Enemies, Champions and Prospects' in Diversity Challenged: Evidence on the Impact of Affirmative Action, ed. G. Orfield (2001) 290.
59. Heinz v. Kenrick [2000] IRLR 144 (EAT).
60. P. Leighton, 'New Wine in Old Bottles' (1998) 25 J. of Law and Society 85.
61. See A. Francis and I. McDonald, 'Part-time Law Students: The Forgotten Cohort?' (2005) Law Teacher (forthcoming).
62. See S. Carter, Reflections of an Affirmative Action Baby (1992).
63. However, for a contrary view, see W. Bowen and D. Bok, The Shape of the River: Long-term Consequences of Considering Race in College and University Admissions (1998).
64. Bacchi, The Shape of the River: Long-term Consequences of Considering Race in College and University Admissions op. cit., n. 6, p. 132.
65. M.Radin, 'Affirmative Action Rhetoric' (1991) 8 Social Philosophy and Policy 130, at 134-6.
66. Bacchi, Social Philosophy and Policy op, cit, n. 6, p. 135.
67. P. Bourdieu, An Outline of a Theory of Practice (1977) 187.
68. Sommerlad and Sanderson, An Outline of A Theory of Practice op cit., n. 12.
69. See Bacchi, An Outline of A Theory of Practice op. cit., n. 6, p. 133.
70. However, compare T. Williams and T. Goriely, Recruitment and Retention of Solicitors in Small Firms (2003) 13.
71. P. Davies, 'Half Full, Not Half Empty: A Positive Look at Part-time Education' (1999) 53 Higher Education Q. 141, at 144.
72. Bacchi, Higher Education Q. op. cit., n. 6, p. 132, points out that 'the problem becomes those described as "damaged"; they are the ones who must change.' Moreover, any failure following the implementation of the policy is seen to lie firmly at the feet of the targeted group.
73. S. Fredman, Discrimination Law (2002) 160.