Title

Using Our Brains: What Cognitive Science Teaches about Teaching Law Students to Be Ethical, Professionally Responsible Lawyers

Abstract

Throughout our lives, below the level of our consciousness, each of us develops powerful values, intuitions, expectations, and needs that powerfully affect both our perceptions and our judgments. Placed in situations in which we feel threatened, or which implicate our values, our brains, relying on those implicitly learned, emotionally weighted, memories, can "downshift," to primitive, self-protective problem solving techniques - fight or flight. Because these processes operate below the radar of our consciousness, we react without reflection or the opportunity for interdiction. Thus, it may be that automatic, “emotional” reaction, rather than thoughtful, reasoned analysis leads to our responses to stressful, questions of ethics and professional responsibility. Lawyers continually face complex, complex problems of great moment to their clients and the community, problems which implicate their professional values. They need to learn to address these problems thoughtfully and effectively while carrying out their professional responsibilities as representatives of their clients, officers of the judicial system, and public citizens, exercising the highest level of moral and ethical judgments. To do so, they need to understand the emotional processes and the content of their intuitions, and have confidence in their ability to act appropriately. Unfortunately, traditional legal education focuses on teaching students "legal analysis" of a given set of facts, in which the answer is the formation of a legal rule, the role of the lawyer is to achieve the client's stated goal, and neither the lawyer's, nor any third party's, values are relevant. This paper analyzes recent discoveries in cognitive science that explain the brain's learning and problem solving mechanisms, and applies that scientific knowledge to demonstrate why traditional legal education may actually impair the ability to effectively solve complex problems, particularly those freighted with issues of personal values and professional responsibility. It then describes an alternative pedagogy, problem-based learning, that provides valuable insights to teaching law students to become ethical practitioners.

Disciplines

Law and Psychology | Law and Society | Legal Education | Legal Ethics and Professional Responsibility | Legal Profession

Date of this Version

March 2004