Legal Education, Social Mobility, and Employability: Possible Selves, Curriculum Intervention, and the Role of Legal Work Experience

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Cited in

Published date	01 June 2015
Date	01 June 2015
Author	Andrew Francis
DOI	http://doi.org/10.1111/j.1467-6478.2015.00704.x

JOURNAL OF LAW AND SOCIETY

VOLUME 42, NUMBER 2, JUNE 2015

ISSN: 0263-323X, pp. 173±201

Legal Education, Social Mobility, and Employability:

Possible Selves, Curriculum Intervention, and the Role of

Legal Work Experience

Andrew Francis*

This article interrogates a number of assumptions underpinning the

recent focus on employability and social mobility within legal educa-

tion and the legal profession ± in particular the capacity of legal work

experience to support these policy objectives. It draws on research

evidence to argue that a narrow focus upon the individual acquisition

of skills and attributes fails to capture the fuller complexity of legal

employability as a negotiated, situated process. It shows how the

structuring properties of the field reduce the capacity of employability

initiatives to disrupt the patterns of social and cultural reproduction

that frame access to the legal profession. In this context, the potential

of curriculum intervention to enhance employability is inhibited by the

structural constraints upon the possible selves that law students are

able to imagine. It suggests that students' opportunities are not only

shaped by their past, but are also constrained by their possible futures.

INTRODUCTION

Legal education and the wider profession have been challenged to meet the

social mobility aspirations of students and government.

Graduates now

assume a significant element of the burden of funding higher education and

173

*School of Law, Keele University, Keele, Staffordshire ST5 5BG, England

a.m.francis@keele.ac.uk

My thanks to Hilary Sommerlad, Julian Webb, and the anonymous reviewers for their

insightful comments on a previous draft.

1 Legal Education and Training Review (LETR), Setting Standards: The future of

legal services education and training regulation in England and Wales (2013) para.

7.43, at ; A. Milburn, Fair Access to

Professional Careers: A progress report by the Independent Reviewer on Social

Mobility and Child Poverty (2012), at

publications/fair-access-to-professional-careers-a-progress-report>.

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the business±university nexus occupies a central place within mainstream

political discourse.

Within this context, student employability has been

stressed to ensure that universities produce graduates with the skills and

attributes that industry requires and individual graduates are positioned as

strongly as possible within a competitive labour market.

Legal employability and social mobility initiatives have each been held

out as critical in enhancing the ability of individual students to secure access

to the profession, irrespective of socio-economic background and based

solely on their skills and attributes, and there has been an increasingly high-

profile emphasis on these activities within the sector.

Moreover, com-

mentators have indicated that the employability agenda can, in fact, support

both objectives.

Legal work experience is an important lens through which to interrogate

`employability'. It has been framed as a crucial way in which `employ-

ability' can be enhanced.

Moreover, it has been identified by the Legal

Education and Training Review (LETR) and the Social Mobility Foundation

as a key site of reform to address social mobility concerns in the profession.

This article will highlight the complex ways in which prior social and

educational background shape future opportunities and will argue that, in

terms of employability and social mobility returns, legal work experience

should not be seen as an uncontested good.

Legal employability has never been more significant for students or their

law schools. Although there is literature which reflects on what the relationship

between legal education and the profession ought to be,

the enhanced

significance of employability for legal education has received little critical

attention to date.

This article draws on empirical research, presented in full for

the first time, to question a number of assumptions underpinning employ-

174

2 T. Wilson, A Review of Business±University Collaboration (2012).

3 A search of `UK Law School employability' produces results from effectively every

legal education provider.

4 G. Watts, Career development learning and employability (2006) 5.

5 R. Dearing, Higher education in the learning society: Report for the National

Committee of Inquiry into Higher Education (1997) 136. See, also, Wilson, op. cit.,

n. 2, rec. 4; G. Mason et al., Employability Skills Initiatives in Higher Education:

What Effects do they have on Graduate Labour Market Outcomes? (2006) 9.

6 LETR, op. cit., n. 1, para. 7. 51; Social Mobi lity Foundati on, at

www.socialmobility.org.uk/programmes/aspiring-professionals-programme/>.

7 A. Bradney, Conversations, Choices and Chances: The Liberal Law School in the

Twenty-first Century (2003); M. Thornton, Privatising the Public University: The

Case of Law (2012).

8 One `employability' initiative is described in R. Russell, `Enhancing Employability

for LLB Law graduates ± initiatives with ILEX and Clinic at London South Bank

University' (2011) 45 Law Teacher 348. Sommerlad provides a sophisticated

analysis of `graduate identity' in the legal profession, but it is beyond the scope of

that piece to deal in any depth with the educational implications: H. Sommerlad,

`The commercialisation of law and the enterprising legal practitioner: continuity and

change' (2011) 18 International J. of the Legal Profession 73.

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ability, social mobility, and curriculum intervention within law schools. It

argues that legal employability has to be understood not only in terms of what

employers want and the skills and attributes individuals can develop, but

through applying the psychological concept of `possible selves' ± what

students imagine they can become.

These insights challenge `employability'

strategies, such as `work experience'. Moreover, if curriculum intervention is

to assist students in realizing their ambitions (and perhaps also support social

mobility), it is argued that such strategies need to be informed by a more

complex reading of legal employability, as a negotiated and situated process.

This is even more significant as a fragmenting legal labour market, and the

growing diversity of routes to qualification within it, challenges the framing of

employability for law graduates as simply in relation to the solicitors' or

barristers' professions. Although my focus is on `legal employability' as

framed by the traditional legal profession, I am not valorizing that sector in

terms of career destination. Rather, I seek to use it as a case study through

which to highlight the importance of social and educational background in

shaping life chances, and to challenge the notion of the legal labour market as a

neutral sphere within which individuals succeed by virtue of their own merit.

BACKGROUND: THE CHANGING CONTEXT FOR LEGAL

EDUCATION AND HIGHER EDUCATION ± SOCIAL MOBILITY,

EMPLOYABILITY, AND ACCESS TO THE LEGAL PROFESSION

While any number of graduates may, in theory, be employable, a much

smaller number are likely to be employed. This is, of course, exacerbated

during a period in which youth unemployment is rising,

and the numbers of

entry-level positions in the profession are restricted.

Moreover, reductions

in the scope of and eligibility for legal aid raise not just access-to-justice

concerns but also call into question the sustainability of the sector and the

criminal Bar.

These issues create a difficult context for the legal profes-

sion's capacity to deliver social mobility in terms of access to and progress

within its ranks.

It has been argued that social mobility problems within professions are

linked to the lingering effects of occupa tional closure.

Professions

175

9 H. Markus and P. Nurius, `Possible Selves' (1986) 41 Am. Psychologist 954.

10 P. Bourdieu, `The Force of Law: Toward a Sociology of the Juridical Field' (1987)

38 Hastings Law J. 805, at 820.

11 K. Sellgren, `Young people ``feel they have nothing to live for''' (2 January 2014),

at .

12 N. Fletcher, Trends in the Solicitors' Profession: Annual Statistics Report 2012

(2013) 42.

C. Baksi, `Civil Legal Aid: Access Denied?' (2014), at

law/civil-legal-aid-access-denied/5040722.article>.

14 A. Witz, Professions and Patriarchy (1992).

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occupied a prominent role in society in part because they could control the

numbers and types of entrants to the profession.

However, there have been

dramatic improvements in terms of socio-demographic diversity within the

legal profession since the 1970s,

and the profession's collective control

over entry has weakened.

Over the past twenty years, the legal profession

has become more diverse than ever before, with strong progress made, in

particular, by women.

Yet, despite these welcome developments, concerns

continue to be raised.

Social class and ethnicity remain powerful factors

and Sommerlad has argued that, notwithstanding the increasingly bureau-

cratic processes of recruitment, personalist ties and instinctive assumptions

about merit continue to reinforce socio-economic privilege.

Employability has been an influential agenda within higher education

since the late 1990s.

Pegg et al. assert that it will continue to be a crucial

part of higher education `in an era of increased costs, higher fees and loans

and increased competition for initial and continuing employment locally and

nationally'.

A central feature of the discourse asserts that students under-

take undergraduate degrees to `become employable',

an assumption which

has, in fact, come to define the entire funding mechanism for higher educa-

tion in England and Wales.

Consequently, universities work hard to

demonstrate and market

the range of ways in which they enhance their

students' employability.

176

15 M. Larson, The Rise of Professionalism: A Sociological Analysis (1977); R. Abel,

The Legal Profession in England and Wales (1988) 169±76.

16 J.P. Braithwaite, `The Strategic Use of Demand-side Diversity Pressure in the

Solicitors' Profession' (2010) 37 J. of Law and Society 442.

17 R. Abel, En glis h Lawy ers Bet ween M arke t and Sta te: Th e Poli tics of

Professionalism (2003).

18 Fletcher, op. cit., n. 12, p. 43.

19 H. Sommerlad et al., Diversity in the Legal Profession in England and Wales: A

Qualita tive Stud y of Barri ers and Ind ividua l Choices ( 2010), a t /

ww w.l eg al se rv ic es bo ar d. or g. uk /w ha t_ we _d o/ Re sea rc h/ Pu bl ic at io ns /p df /

lsb_diversity_in_the_legal_profession_final.pdf>; LETR, op. cit., n. 1.

20 Sommerlad, op. cit., n. 8, p. 96.

21 M. Clarke, `Where to from here? Evaluating employability during career transition'

(2007) 13 J. of Management and Organisation 196.

22 A. Pegg et al., Pedagogy for employability (2012) 6.

23 A. Bradney, `English university law schools, the age of austerity and human

flourishing' (2011) 18 International J. of the Legal Profession 59, at 60.

24 J. Browne, An Independent Review of Higher Education Funding and Student

Finance (2010), at .

25 N. Foskett, `Marketisation and Education Marketing: The Evolution of a Discipline

and a Research Field' in The Management and Leadership of Educational

Marketing: Res earch, Practic e and Applicati ons (Advances i n Educational

Administration, Vol. 15), eds. I. Oplatka and J. Hemsley-Brown (2012) 39±46.

26 M. Thornton and L. Shannon, ```Selling the Dream'': Law School Branding and the

Illusion of Choice' (2013) 23 Legal Education Rev. 249.

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The focus on `employability' has been overwhelmingly skills based ± this

is what is needed to enhance employability because these are the skills that

employers say they require. The Higher Education Academy (HEA) provides

the following definition:

a set of achievements, skills, understandings and personal attributes that makes

graduates more likely to gain employment and be successful in their chosen

occupations which benefit themselves, the workforce, the community and

economy.

Thus, Pegg et al. note that the focus from government and industry has been

to ensure that graduates are `future fit',

and the CBI/NUS further highlight

the specific skills and aptitudes that employers look for.

The Leitch report

stresses that `Skills is the most important lever within our control to create

wealth and to reduce social deprivation' and that ```Economically viable

skills'' is our mantra'.

It also advocates the importance of strengthening the

employer voice in skills development

± a connection which, in the context

of universities, is the entire focus of the Wilson review.

There are extensive guides to universities' integration of employability

into their programmes, through skills modules, embedded approaches

throughout the curriculum, personal development planning (PDP), and

career management planning.

Much of this literature asserts the main-

stream policy argument as justification for the initiatives.

Thus, Prior

reiterates that, `graduates need to be prepared for what employers want and

to be able to make a contribution early on in their careers . . .'.

From this

perspective, employability is individualized and is seen in absolute terms.

The economy needs graduates with particular skills and attributes and it is

177

Higher Education Academy (HEA), at .

28 Pegg et al., op. cit., n. 22, p. 6.

29 CBI/NUS Working towards your future: Making the most of your time in higher

ed uca ti on ( 20 11 ), a t tp :/ /w ww .c bi .o rg. uk /m ed ia /1 12 143 1/ cb i_ nu s_

employability_report_march_2011.pdf>.

30 Lord Leitch, Prosperity for all in the Global Economy ± World Class Skills: Final

Report (2006) 7.

31 id., p. 9. See, also, K. Sellgren, `Warning of worsening in UK skills shortage'

(2014), a t www.bbc .co.uk/ news/ed ucation- 2594541 3>, repor ting that

`employers struggled to f ind employees with the ``core generic skil ls'' of

communication, literacy and numeracy.'

32 K. Mason O'Connor et al., Employability: A Rationale and Examples of Practice

(2005); M. Yorke and P. Knight, Embedding employability into the curriculum

(2006); P. Knight and M. Yorke Employability: judging and communicating

achievements (2006); M. Shaw et al., Pioneering Employability in the HE

Curriculum (2003); HEA, Personal Development Planning and Employability

(2006).

33 This could also operate as a strategy to secure institutional buy-in (Pegg et al., op.

cit., n. 22, p. 13).

34 C. Prior, `Career Management Skills and work placements in Cultural Studies' in

Mason O'Connor et al., op. cit., n. 32, p. 30; Watts, op. cit., n. 4, p. 5.

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the responsibility of an individual to enhance his or her own employment

prospects.

In parallel to these developments in higher education generally, the lan-

guage of employability has increasingly been adopted across legal education

± not least in marketing programmes to prospective undergraduates. The

nexus between the profession and legal educators is increasingly a statement

of reality ± at least in the context of student employability. Students under-

standably want to secure employment,

and employers (law firms and

chambers) want to employ individuals with the skills and attributes that they

require.

The employability agenda, premised as it is with equipping

graduates with the requisite skills, achievements, and understandings for the

labour market, in principle, addresses these concerns. Thus, as legal

employability for students becomes more prominent than ever before, so too

does the relationship between law schools and the profession.

The grumblings of the profession about the capacity of graduates to

deliver on `day one'

and, indeed, a wider questioning of the fitness for

purpose of the entire legal education and training system,

led in part to the

establishment of LETR. Although the regulators have shown limited interest

in dictating the detail of employability, the broader drivers of `what

recruiters want' more informally shapes concerns within legal education.

Even as formal regulatory ties are loosened,

market drivers strengthen the

orientation to the profession. Given these developments, and enduring

concern about social mobility and access to the legal profession, it is more

important than ever to think critically about employability within the context

of legal education.

178

35 Department for Education and Employment (DfEE), A special issue of higher

education digest presenting DfEE higher education development projects (2000); J.

Hillage and A. Pollard, Employability: developing a framework for policy analysis

(1998); Browne, op. cit., n. 24.

36 Hardee identifies students' desire for more problem solving and practice skills: M.

Hardee, Career Expectations of Students on Qualifying Law Degrees in England

and Wales (2012). See, also, LETR, op. cit., n. 1, para. 2.103, reporting student

requests for more skills- and employability-based activities.

37 The City of London Law Society (CLLS) states that its members `feel that the

profession . . . through its regulatory arm might need to have greater control over

both the standards and content of the QLD . . .' (CLLS, Response to the LETR

Discussion Paper 02/12 (2012) 12).

38 Although it is also one that in formal regulatory terms at least, remains mired in

uncertainty, see Solicitors Regulation Authority (SRA), at

sra/policy/training-for-tomorrow.page>.

39 Joint Academic Stage Board of the Law Society and Bar Council (JASB), The

Academic Stage of Training for Entry to the Legal Profession: Standards, Content

and Related Issues (2002) 12.

40 D. Edmonds, Lord Upjohn Lecture: `Training the lawyers of the future ± A

regulator's view' (2010).

41 SRA, Training for Tomorrow Consultation Response (2014).

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SITUATING LEGAL EMPLOYABILITY

Employability should be understood in the context of an increasingly com-

petitive and complex labour market,

which requires graduates to differen-

tiate themselves.

Brown and Hesketh argue that the `official' story of

employability and graduate recruitment messages which focus on skills,

knowledge, and attributes pay insufficient attention to the absolute and

relative meanings of employability ± the `duality of employability'.

They

offer a more ambiguous and uncertain definition ± the `relative chances of

getting and maintaining different kinds of employment' and remind us that

`it is possible to be employable and not in employment'.

Understanding

these relative chances requires us to interrogate the way s in which

individuals are differentially positioned in the graduate labour market and

what aspects of their personal capital are prioritized. Similarly, Tomlinson

argues that `employability must be seen as a socially active process by the

way graduates position themselves and are positioned.'

Drawing on Bourdieu's concepts of habitus and of cultural capital enables

us to understand how that prior positioning ± in terms of background,

education, family, and so on ± shapes an individual's position within the social

field.

The habitus is the durable ways of `speaking, walking and thereby of

feeling and thinking'

required to demonstrate that an actor is `objectively

compatible' with the properties of a social field.

Those without the

appropriate habitus have their possibilities for action severely constrained.

There are other contemporaneous signals from the social and economic

world that successful graduates are likely to have internalized.

Thus,

Brown and Hesketh argue that a key dimension of this is agency in deploying

the economic value of self,

which involves the development of a narrative

of employability. Crucially, this is a narrative that needs to be `worked at'; it

is a reflexive project of the self.

An aspect of this reflexive graduate

179

42 R. Abel, `What does and should influence the number of lawyers?' (2012) 19

International J. of the Legal Profession 131.

43 P. Brown and A. Hesketh, The mismanagement of talent: Employability and jobs in

the knowledge-based economy (2004) 30; M. Tomlinson, `Investing in the self:

structure, agency and identity in graduates' employability' (2010) 4 Education,

Knowledge & Economy 73.

44 Brown and Hesketh, id., p. 24.

45 id., p. 25

46 Tomlinson, op. cit., n. 43, p. 74.

47 P. Bourdieu, The Logic of Practice (1990) 59.

48 id., p. 70.

49 id., p. 54.

50 id., p. 68.

51 Tomlinson, op. cit., n. 43, pp. 83±4.

52 Brown and Hesketh, op. cit., n. 43, p. 36.

53 id., p. 220. See, also, G. Hinchliffe and A. Jolly, `Graduate identity an d

employability' (2011) 37 Brit. Educational Research J. 563, at 578.

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identity is seen in the entrepreneurial self that Sommerlad argues is a critical

aspect of the normative professional identity demanded by large corporate

law firms in their graduate recruitment.

Many graduates face challenges in

demonstrating the appropriate cultural capital,

which denotes the required

entrepreneurialism; thus their habitus shapes their life chances.

Beagan's

assertion that the `repertoire of the possible' is not equally possible

powerfully borne out in the interrogation of employability through the lens

of legal work experience that is set out in the rest of this article.

METHODOLOGY

In order to address these core questions about legal employability, this article

draws on the findings of the `Legal Work Experience' study, conducted with

Hilary Sommerlad and supported by UKCLE.

`Legal work experience'

refers principally to two key types: informally arranged work experience for

anything from one day to a number of weeks (from as early as Year 10

onwards) and formal vacation schemes, typically aimed at undergraduate

law students to support firms' recruitment strategies.

The study was designed to enhance our understanding as to the role that

legal work experience plays in mediating access to the legal profession and

to consider the different ways in which it is constructed and experienced by

students and employers. It drew on a mixture of survey and qualitative

methods with students and employers.

The student perspective was critical. Not only are students' concerns

about employability a major driver for universities, but, Tomlinson argues,

students themselves internalize messages about employability.

Question-

naires were distributed to LLB students in the autumn of their second and

third years, with focus groups in the spring of their third year,

from a pre-

180

54 Sommerlad, op. cit., n. 8.

55 id. p. 96.

56 Brown and Hesketh, op. cit., n. 43, p. 227.

57 B. Beagan, `Micro Inequities and Everyday Inequalities: ``Race'',Gender, Sexuality

and Class in Medical School' (2001) 26 Canadian J. of Sociology 583, at 600.

58 UK Centre for Legal Education (UKCLE), at

projects/current-projects/francis/index.html>.

59 A. Francis and H. Sommerlad, `Access to legal work experience and its role in the

(re)production of legal professional identity' (2009) 16 International J. of the Legal

Profession 63, at 67±9; T. Ginsburg and J. Wolf, `The Market for Elite Law Firm

Associates' (2004) 31 Florida State Law Rev. 909.

60 R. Miller et al., SPSS for Social Scientists (2002) 1.

61 Tomlinson, op. cit., n. 43, pp. 83±4.

62 Second-year response rate: pre-92, 135/280 (48 per cent); post-92, 135/200 (67.5 per

cent). In the third year this was 60/280 (21 per cent) pre-92 and 57/200 (28.5 per

cent) post-92.

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1992 and a post-1992 university.

The profile of the student sample broadly

mirrors that of the national cohort.

There are, however, demographic

differences between the student bodies at the two institutions; for instance,

the post-1992 sample contains more students from a BME background and

more mature students.

The primary focus in their second year was on the students' informally

arranged work experience and the ways in which that positioned them for the

formal vacation schemes. The third-year survey explored changes in their

understanding of legal work experience and its role in the recruitment

process. This data was analysed through SPSS. Given the consistency of the

responses (on the one hand) and the clear post-92/pre-92 binaries between

two institutions (on the other), much of the analysis of this data does not

attempt to draw conclusions about aggregated patterns of behaviour.

Nevertheless, cross-tabular analysis was undertaken, and I have attempted to

highlight where particularly strong associations arose between variables.

Data from employers was derived from a survey of 50 firms (26+ partner

firms i n the pr inci pal le gal ma rket s serv ed by th e parti cipa ting

institutions).

Detailed interviews were then undertaken with an illustrative

sample of 16 graduate recruitment managers and partners from elite

corporate multinationals to 19 partner regional practices. This data set is

subject to the usual caveats about qualitative methods and interviews in

particular.

However, my analysis of the interview data was also informed

by a wider understanding of the processes and changes within the field,

and it is important to note the consistency between these employer

responses with other sources, including wider recruitment material,

other

`careers-type' surveys,

and indeed the student data. Nevertheless, where

there are different stories, or alternative readings, I have attempted to

181

63 Obviously, the landscape is far more complex than this, but it is a label understood

by both the legal education sector and the recruiting firms.

64 Fletcher, op. cit., n. 12, p. 34.

65 See, also, D. Reay et al., Degrees of choice: social class, race and gender in higher

education (2005).

66 Miller et al., op. cit., n. 60, p. 3.

67 id., p. 133.

68 Although, there was a disappointing response of just 16 per cent, the responses do

nevertheless accord with other surveys (King's College London (KCL), `Law

Employability Research, in partnership with The Times' (2013)) and with the more

detailed qualitative data.

69 D. Silverman, Interpreting Qualitative Data: Methods for Analysing Talk, Text and

Interaction (1993) 144±70 and 196±211.

70 D. Layder, New Strategies in Social Research (1993) 19.

71 For example, as discussed by 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.

72 KCL, op. cit., n. 68.

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outline them in discussion.

The focus groups and interviews were subject

to thematic analysis,

before coding and identification of key illustrative

quotations.

THE CONSTRUCTION OF LEGAL EMPLOYABILITY AND THE

IMPORTANCE OF SOCIAL BACKGROUND AND EDUCATIONAL

HISTORY

Law graduates face particular challenges in demonstrating their employ-

ability. The graduate market is contracting and there is huge uncertainty

about the future of the legal services sector. As is the case in other sectors,

credential inflation requires law graduates to demonstrate distinction.

Drawing on the research findings, the following section will argue that the

habitus forged through social class and educational experience can not only

`frame graduates' perceptions of their own employability and their propen-

sities towards seeking various forms of employment,'

but also affect their

ability to meet firms' expectations. Crucially, although firms' expectations

are presente d neutrally ± fo r example `gl obal mindset , commercial

awareness and intellectual rigour'

± graduates are not equally positioned

in terms of their ability to satisfy these requirements.

In the context of the law firms' construction of an employable graduate

identity,

A-levels feature heavily. In the work experience study, all

surveyed firms were `extremely unlikely' to consider grades below BBC and

interviewees generally spoke in terms of straight As, or ABB at the outside.

Firms were also relatively traditional in terms of preferred A-level subjects.

Of those students surveyed, 62.3 per cent of post-92 students and 7 per cent

of pre-1992 students had grades below BBC. In terms of university perform-

ance, most firms looked not just for a predicted 2(i), but a `comfortable 2(i)',

with `75 per cent of marks at 2(i) level'.

Yet, we should be cautious about

the context in which the generally better educational credentials of those

with more traditional backgrounds have been achieved. As Morley argues,

`socio-economic privilege appears to be transferred onto the production and

182

73 Silverman, op. cit., n. 69, p. 162.

74 V. Braun and V. Clarke, `Using Thematic Analysis in Psychology'(2006) 33

Qualitative Research in Psychology 77.

75 Tomlinson, op. cit. n. 43, p. 86.

76 KCL, op. cit., n. 68.

77 Large corporate firms, recruiting two years in advance, effectively use the same

criteria in their selection of vacation scheme candidates and trainee solicitors.

78 HESA statistics show 64 per cent of undergraduate degrees in Law were at First or

2(i) level in 1 2/13: see ttp://www .hesa.ac .uk/dox/ dataTable s/studen tsAnd

Qualifiers/download/Qualsub1213.xlsx>. This is an important context for the

`distinction'.

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codification of qualifications and competencies, [ensuring that] social gifts

are treated as natural gifts.'

Firms were explicit in underlining that they viewed `such academics' as a

starting point, and looked for other means of distinction.

As one employer

in Brown and Hesketh's study put it: `paper qualifications are the first tick in

the box and then we move onto the real selection.'

The successful students

were those who had understood the need for distinction and who had the

cultural capital and intellectual ability to demonstrate it. As one student

reflected:

If everyone who's applying have got 2(i)s, it needs to be something that makes

you look different.

(Female, pre-92, TC, national multi-departmental)

In their study of graduate recruitment Morley et al. identified specific areas

of distinction: `a range of soft skills with considerable attention paid to

interpersonal and communication skills.'

Thus, in the work experience

study, the well-rounded personality was valued, as firms felt that it evi-

denced the ability to operate successfully within a firm, particularly in terms

of client interactions: `personable geniuses' (female partner, large corporate,

15). However their conception of a well-rounded personality and the ways in

which students demonstrate this, also underline the difficulties that face

many non-traditional students in seeking to negotiate the professional field,

which fundamentally does not expect to see `the likes of [them]'.

What, I

argue, the data suggests is not a process of formal exclusion but, rather, the

discomfort that Bourdieu identifies for those lacking the appropriate habitus

for a particular social field.

Firms define legal graduate employability through their search for:

the X factor . . . [the applicant] must have, maybe artistic, sporty or whatever,

but something that just makes them a little bit more interesting.

(Female, graduate recruitment, regional multi-departmental, 8)

183

79 L. Morley, `The X Factor: Employability, Elitism and Equity in Graduate

Recruitment' (2007) 2 Twenty-first Century Society 191, at 205; see, also, P.

Brown, `The ``Third Wave'': education and the ideology of parentocracy' (1990) 11

Sociology of Education 65, at 77. Firms were open to some mitigation, and were not

unsympathetic to issues of socio-economic disadvantage, but generally found it

difficult to make adjustments on these criteria. See, further, L. Ashley, `Making a

Difference? The use (and abuse) of diversity management within the UK's elite law

firms' (2010) 24 Work, Employment and Society 711.

80 Firms reported having to deal with 300, 1500, 2000 applications for their training

contract programmes.

81 Brown and Hesketh, op. cit., n. 43, p. 31.

82 L. Morley et al., Needs of employers and related organisations for information

about quality and standards of higher education (2006) 74.

83 Bourdieu, op. cit., n. 47, p. 56.

84 id., p. 59.

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It is an indefinable something that marks them out as:

having an effect on things and people.

(Female, graduate recruitment, magic circle, 3)

While the X factor is presented as bias-free,

in practice, students from

working-class or non-traditional backgrounds will experience differential

access to the activities which enable students to demonstrate the X factor in

ways that are readily recognizable to the firms. Thus:

extra-credential experiences can serve powerful social closure functions, while

appearing part of a fair and meritocratic process . . . Teamwork, communica-

tion and other interpersonal skills are more convincingly demonstrated through

relevant employment or volunteer experiences than through outstanding

academic records.

Hinchliffe and Jolly also emphasize the importance of practice and identity

in performing graduate employability, but stress that `it may be that the

identity a graduate presents is not recognised . . . by an employer'.

Thus, one firm asks about:

hobbies and interests ± we are looking for a blend of solo and team activities ±

sports, moots, clubs.

(Male, graduate recruitment, national multi-departmental, 9)

Another suggested that:

it could be anything: sport, JCR, social clubs, politics or whatever, as long as

there's a spark shown,

(Male partner, magic circle, 11)

adding that a `burning ambition to whitewater raft on the Amazon' could be a

legitimate reason why an applicant had not undertaken work experience

(emphasis added). Other interviewees highlighted societies at university,

participation in mooting, client interviewing, and so on. Fundamentally,

there should be breadth. Firms see university as an ideal opportunity for

students to engage in a range of extra-curricular activities which would

enable them to demonstrate their well-rounded personality. Hinchliffe and

Jolly confirm that `employers [generally] were often suspicious of graduates

who had used their student experience in a narrow way'.

All firms were open to a story being told about different types of activities

± working in a shop, for example, demonstrates commitment, perseverance,

and perhaps a level of commercial awareness ± but it was not what they were

expecting to see. However, many non-traditional students are unlikely to

184

85 Morley, op. cit., n. 79.

86 W. Lehmann, `Extra-credential experiences and social closure: working-class

students at university' (2012) 38 Brit. Educational Research J. 203, at 215.

87 Hinchliffe and Jolly, op. cit., n. 53, p. 565.

88 id., p. 575.

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realize that they can tell such a story, let alone how they can go about doing

so. As one interviewee conceded:

we've always encouraged, and will continue to do, a strong degree of self-

selection in our applications.

(Female, graduate recruitment, magic circle, 3)

Without support, many will self-select out of the recruitment process in the

face of the mixed messages from firms. As this section has made clear, a

close reading of legal graduate employability reveals serious barriers to

social mobility aspirations.

LEGAL WORK EXPERIENCE AND ITS ROLE IN ENHANCING

EMPLOYABILITY AND SUPPORTING SOCIAL MOBILITY

Work experience is important not only because it forms part of the narrative

of an employable graduate identity, but it is presented as a key neutral

strategy through which to enhance employability and address social mobility

concerns. The data presented here highlight the difficulties that students

from non-traditional backgrounds face in securing these opportunities.

Moreover, when we analyse the students' own perception of their work

experiences, the notion of work experience as an uncontested employability

good is challenged.

In addition, the findings draw attention to the

difficulties that are likely to emerge in formally embedding work experience

within university employability strategies.

Taken together, I argue this

reinforces the importance of class, background, and education in the

narrative of a legal employability, which is not equally available to all. This

challenges mainstrea m justificat ions for empl oyability w ithin highe r

education and highlights the complexity of the challenge of addressing

social mobility concerns within the legal profession.

1. Work experience ± who gets it and when?

The significance of `previous legal work experience' is underlined by the

following student.

Something that was fairly consistent between those of us who got [vacation

scheme] and those who didn't, were the ones who had informal work

experience. It was very, very important.

(Female, pre-92, TC, national multi-departmental)

The firms said that previous informal work experience signals that the

applicant has thought seriously about their career. It is part of the picture of

185

89 Dearing, op. cit., n. 5, p. 136. See, also, Wilson, op. cit., n. 2, p. 7; Mason et al., op.

cit., n. 5, p. 9.

90 Prior, op. cit., n. 34.

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whom firms expect to see. They expect to see a candidate who has undertaken:

at least three forms of work experience ± for instance, I'd encourage them to

approach a High Street firm, or maybe volunteer at a law centre, or ask around

friends and family.

(Female, graduate recruitment, national multi-departmental, 6)

The expectation was that students would have friends and family through

which they could secure legal work experience. Given that only 8 per cent of

the second-year sample had ever been refused informal work experience, the

importance of knowing when, how, and whom to ask is clear:

By pure chance and luck I knew one of the practice managers through one of

the local theatre groups. At the start I did a couple of days at the end of sixth

form, just shadowing different people.

(Female, pre-92, TC, national multi-departmental)

I started . .. looking at ways of getting work experience in sixth form because I

had a law teacher who one day, said `yes, legal work experience, very

important'. I didn't know why it was, but I thought it was something

productive that I could be doing.

(Male, pre-92, TC, large corporate)

The recruiters stressed that they recognized the challenges involved in

securing conventional legal work experience without contacts, and again,

some were open to a story being told about its absence on a CV. However,

such a candidate remains a departure from whom they expect to see.

Lehmann also notes that, for the working-class students in his study, `it was

the internships in medicine and dentistry, the law firm volunteer placements

and the international study and work experiences that they desired but that

were out of their reach.'

By their third year, most students surveyed had continued to secure

informally arranged work experience and thus, it could potentially be a

valuable resource to draw upon in PDP activities.

Just over half of the

sample by this stage had secured at least one period of informally arranged

legal work experience. However, the students in the pre-92 institution were

far more likely to have attempted to secure legal work experience ± 80 per

cent in contrast to 47.4 per cent.

In second year, the most common reason

for not having undertaken work experience was `didn't know how to arrange

it', and the post-92 students were twice as likely as the pre-1992 students to

give this as their reason. `Didn't think of it' and `too nervous' to apply were

186

91 Lehmann, op. cit., n. 86, p. 14.

92 HEA, op. cit., n. 32.

93 With only two institutions surveyed it would be invidious to make broader

conclusions, but the difference was significantly greater than that would be achieved

by chance. Cross-tabular analysis generated an adjusted residual of 3.2. This is the

difference between the expected and observed frequencies. Accepted practice gives

special attention to values greater than 2 or less than ±2 (Miller et al., op. cit., n. 60,

p. 133).

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also responses which the post-92 students were more likely to record. There

is potential for raising awareness about the value and role of legal work

experience within all law schools, but as we will see below, this is not

straightforward.

Vacation schemes not only act as an integral stage in a firm's recruitment

processes, but also as part of the developing narrative of a student on a pathway

towards establishing an employable graduate identity. Recruiters ask `why

not?' if there is no formal vacation scheme on an application for a training

contract. Despite the largest firms recruiting two years in advance, only just

under half (45.3 per cent) of the sample had applied for a formal vacation

scheme by the November of their third year. Although this shift from the 81.2

per cent who were focused on becoming either solicitors or barristers in the

autumn of their second year

is not unsurprising, given what is generally

assumed about law graduate destinations,

it is worth noting the institutional

differences. Students from the pre-92 institution were, once again, much more

likely to have applied for a formal vacation scheme. Just 29 per cent of the post-

92 institution's students had applied, compared to just over 60 per cent of the

pre-92 institution students. Moreover, the pre-92 students were more likely to

have made multiple applications. Thus, those students who had made 2±3

applications for vacation schemes were evenly spread between institutions.

Those who had made more than 5 applications (thus increasing their chances of

success) were overwhelmingly from the pre-92 cohort.

This data strengthens my argument that legal graduate employability is

constructed by the recruiting firms as a narrative that is enacted,

rather than

a set of skills and attributes that can be taught and acquired. Crucially, an

individual's habitus shapes his or her ability to intuitively recognize and

comfortably access the opportunities to develop this narrative. Work

experience is a crucial dimension of this process. Thus, those who were

successful in securing formal vacation schemes all possessed multiple

episodes of informally arranged work experience and were far more likely to

attend the pre-92 institution (25 per cent of these students had formal

vacation schemes compared with 3.5 per cent of post-92 students). In

addition, the vast majority (88 per cent) had A-level grades of ABB or better,

and, barring two exceptions, presented a 2(i) degree profile. Firms'

assessment criteria (common to both training contract and vacation schemes)

map clearly onto those patterns of student success.

Students with connections to the profession through either family or

friends were twice as likely to have secured work experience at an early

187

94 See similar results in Hardee, op. cit., n. 36.

95 D. Hunt, The Hunt Review of the Regulation of Legal Services (2009) 89.

96 The most common reason (across both institutions) for not applying was that they

did not think that their academic profile was strong enough.

97 Brown and Hesketh, op. cit., n. 43, p. 36.

98 Francis and Sommerlad, op. cit., n. 59, p. 75.

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stage (year 10/11) than those without such connections. Overall, students

were more likely to have had work experience than not, except those students

whose fathers worked in `routine and semi-routine occupations'.

In her

analysis of North American law and business schools, Schleef identities the

inevitability, or `default' nature of participation in professional education

among privileged middle-class students.

100

Brown also highlights what he

describes as `parentocracy', where the `education [or professional oppor-

tunities] a child receives . . . conform[s] to the wealth and wishes of the

parents, rather than the abilities and efforts of pupils.'

101

The path to a training contract is not as inevitable as enrolment in a

professional school,

102

but it is still infinitely more comfortable for middle-

class law graduates. Their habitus has, as Bourdieu puts it, enabled the `ease

of a comfortable situation ensuring an easy life',

103

through which they

secured the opportunities to develop the narrative of legal employability. Of

course, university law schools could attempt to make work experience

widely available as one way to redress the problems of differential access

highlighted above. However, the following section, which challenges the

idea of legal work experience as a neutral learning opportunity, will draw out

the difficulties in translating all of the benefits associated with legal work

experience into the curriculum.

2. Experiencing work experience: learning to learn and learning to fit in

I argue that the research findings about the processes of legal work experi-

ence challenge `taken for granted' assumptions about work experience. They

indicate that work experience operates as a cultural marker of distinction, a

process of transformation and assessment, and far less as a neutral arena

within which technical skills and attributes are developed. Student experi-

ences can, of course, be a powerful learning and teaching resource.

104

However, the value is heavily contingent upon the nature of those experi-

ences. What actually happens during work experience, whether informally

arranged or as part of a formal vacation scheme, is crucial to understanding

firms' constructions of the employable graduate.

The vast majority of students were overwhelming positive about their

informal work experiences. For many, it had been critical in fuelling their

188

99 The occupational categorization followed that used by the Office for National

Statistics, at lassifications/current/ns-sec/cats-

and-classes>.

100 D. Schleef, Managing Elites: Professional Socialization in Law and Business

Schools (2006) 200.

101 Brown, op. cit., n. 79, p. 65.

102 Schleef, op. cit., n. 100.

103 P. Bourdieu, Distinction (1984) 255±6.

104 G. Light and R. Cox, Learning and Teaching in Higher Education: The Reflective

Professional (2001) 79.

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desire to study law, which is of huge value if greater access to informal work

experience is made available to students who may not be convinced that the

pathway is right for them. From a social mobility perspective, timing will be

critical in ensuring that students know about these opportunities and how to

access them in order to maximize the value of the experience. Yet, there was

also evidence that students learned something of the realities of practice; it

could be competitive, it was extremely busy and, just very occasionally,

legal work was not necessarily terribly exciting.

Overall impression was that is a hard profession to work in at times. However

very rewarding at other times.

(Female, post-92)

Boring as involved Land Law, but well paid.

(Male, pre-92)

These are valuable insights which can assist students in making informed

decisions about their careers.

105

Moreover, if students are able to develop

insight into how to operate within the firm it is likely that they will find

themselves better able to deal with firms' expectations in the formal

recruitment processes. However, in terms of specific technical skills and

attributes that the recruiting profession will require, it is unlikely that

informal work experience can deliver much in terms of informing student

learning.

The nature of their work was not particularly detailed or complicated.

Moreover, as students moved along the pathway to success, their view of the

value of the experiences became more cynical:

. .. the big firm in London doesn't give two hoots about the experience you've

had with the criminal defence firm in [name]. But they can see you're the right

sort of person and have made the effort.

(Male, TC, pre-92, large corporate)

There is also a disconnect between the smaller high-street sector within

which most students secured their experience,

106

and the fact that vacation

schemes and training contracts are typically offered by the larger firms.

107

As one student put it:

my informal work experience at high street firms . .. I don't think it really gave

me an actual insight into the day-to-day what I would be doing if I was

working at a bigger firm.

(Female, pre-92, TC)

189

105 Watts, op. cit., n. 4.

106 62.5 per cent (at Level 3) had experience in this sector, compared to 15 per cent in

corporate sector.

107 Francis and Sommerlad, op. cit., n. 59, p. 71; 36.8 per cent of traineeships were

registered in 81+ partner firms , with 38 per cent in the City (Fletcher, op. cit., n. 12,

pp. 44±6).

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which is understandable, given the scale of fragmentation within the

profession.

108

In direct contrast, learning (and the assessment of learning) is an explicit

objective of formal vacation schemes. They are highly structured, designed

to assess the candidate and give a realistic insight:

109

What they do on the vacation scheme, when you join as a trainee this is exactly

the sort of stuff you will be doing almost immediately . . . So it does become

quite an interesting test when you know more or less this is what they're going

to be like on day one.

(Male partner, large corporate, 16)

For a number of the firms, the assessment is focused on the final interview

for the training contract that takes place at the end of the vacation scheme.

For others, this assessment will also be informed by formal reports from

those supervising the vacation schemer's work, or more informal assess-

ments from those who have interacted with the student (including existing

trainees):

They are here to shine and we don't want to sound too Big Brotherish, but they

are assessed.

(Female, graduate recruitment, magic circle, 1)

A key part of what firms say they assess is the capacity to be self-aware,

reflexive, and able to quickly understand what is being sought.

110

The

students need to learn about the tasks that they have been asked to complete,

be enthusiastic about those tasks, and indicate that they can model the trainee

approach to work more generally ± `by not running out the door at 5.30'

(Female, graduate recruitment, large corporate, 4) ± and thus embracing the

`total institution' of a large corporate law firm.

111

It is an explicit process of

transition:

part of the transition [on a work placement] is their willingness to understand

that there is a transition [between academic work and the profession]. And that

will be part of the assessment.

(Female partner, large corporate, 15)

The work that firms organize is designed to test this. The majority of

students responding indicated that most of their time on their formal vacation

scheme had been spent on structured research projects. They were positive

about the work, with 68 per cent either agreeing or strongly agreeing that `I

got a really good exposure to the type of work I'd be doing as a trainee.'

Thus students might do:

190

108 A. Francis, At the Edge of Law: Emergent and Divergent Models of Legal

Professionalism (2011) 3.

109 For similarities in the United States, see Ginsburg and Wolf, op. cit., n. 59.

110 Sommerlad, op. cit., n. 8.

111 E. Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other

Inmates (1968) 11; Collier, op. cit., n. 71, p. 67.

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a piece of research, go to a meeting, draft a letter to a client.

(Female, graduate recruitment, large corporate, 4)

Firms look for reflexivity; the ability to learn from feedback, improve and

change:

I always pose the question . .. [on the] last day, `do you feel, or how much do

you feel, you've changed as a person, in terms of your skills and your self-

awareness, and your knowledge about yourself, as well as about this, over four

weeks?'

(Female, graduate recruitment, magic circle, 2)

In one firm I was asked to draft a letter and had some feedback that said I

`sounded like a lawyer from the 16th century, so cut out some of these fancy

words'. So the next letter I wrote I tried a more clear professional style and

they said `good, you've learned from the feedback'.

(Male, pre-92, TC, large corporate)

However, operating successfully in the first place and then being able to

learn reflexively is likely to be easier if you have advance understanding of

the learning tasks ahead and what will be expected of you during these

processes.

112

Although most students in their second year had a broad

understanding of the role, purpose, and importance of formal vacation

schemes within the recruitment processes of large firms, 24.4 per cent

thought that `general mentoring/providing insight' formed part of firms'

motivations. Cross-tabular analysis identifies a strong association between

this lack of understanding, `not having had legal work experience', and

attendance at a post-92 institution, which is indicative, at least, of some

students' struggles to enact the narrative of legal employability.

113

Even by

their third year, most students maintained their insistence that demonstrating

`good legal knowledge' was the most important characteristic that a good

vacation scheme student should demonstrate. This was far less important for

the firms:

The graduate recruitment team said to me [after I've been offered a Training

Contract], sometimes . . . the way you conduct yourself [over the two week

period], that's more important than perhaps the answers you give in the

interview or the brilliant role play you did.

(Female, pre-92, TC, national multi-departmental)

I argue that firms' expectations that the prospective trainee will `fit'

comfortably and engage effectively with clients reinforce the importance of

habitus within legal practice.

114

Successful applicants are those whose

191

112 A. Brockbank and I. McGill, Facilitating Reflective Learning in Higher Education

(2000) 61±2.

113 This form of analysis does not demonstrate a causal relationship, but does indicate a

pattern consistent with the picture of marginalization borne out elsewhere in the

data.

114 Bourdieu, op. cit., n. 47, p. 59.

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habitus equips them with an instinctive understanding of how to play the

game.

115

Firms expect students to demonstrate `enthusiasm', `common

sense', an `ability to interact', and echoed this summary:

We're really looking for people who are happy to get involved ± the more

involved they are, the stronger their report will be.

(Male, graduate recruitment, national multi-departmental, 9)

As Hinchliffe and Jolly confirm, in another employment context, `the

graduate must be able to fit quickly into a team and if this attribute is lacking

they may not get appointed even if their technical skills are highly

developed.'

116

Firms are assessing (whether continuously, covertly or at the

formal interview) that prospective trainees can instinctively fit and embody

the employable graduate identity.

Firms' examples of what they looked for in dress included no `tongue

bars', no `short skirts', and for the men to be `clean shaven and wear black

shoes not brown', and sometimes ask trainees to score students on their

appearance. The process of adjustment in dress also underlines the trans-

formations that recruiters are looking to see:

They now need to have the mentality of imagining you're now a city lawyer.

Imagine what that looks like and feels like . . . And the hairstyle and shoes is

part of that . .. If after a week, you don't understand what is expected in a law

firm, on the assumption that you're reasonably intelligent and have an interest

in Law, then the alarm bells do go off.

(Male partner, large corporate, 16)

Appearance and dress is part of the evaluation as to whether applicants

understand what is required of them in a professional environment and

possess an intuitive and `practical mastery . . . of their situation'.

117

Critically

however, this reflexive project of the self is framed as an individual's

responsibility and ignores the importance of social and cultural background in

supporting an individual's capacity to successfully engage in this project.

118

There is an economic rationality to firms' expectations of their recruits to

look the part of the `city lawyer' to reinforce client confidence, and to hire

lawyers who are sufficiently attuned to their environment to make appro-

priate adjustments, whether that is in terms of their execution of work tasks,

appearance or even knowing that drinking with clients is not the same as

drinking with their friends. The difficulty is that those from more dis-

advantaged backgrounds may find it difficult to engage in reflexivity from a

position of marginalization.

119

Earlier and frequent exposure to informal

192

115 B. Fowler, Pierre Bourdieu and Cultural Theory: Critical Investigations (1997) 18.

116 Hinchliffe and Jolly, op. cit., n. 53, p. 572.

117 D. Robbins, The World of Pierre Bourdieu: Recognising Society (1991)1.

118

Brown and Hesketh, op. cit. n. 43, p. 220; Hinchliffe and Jolly, op. cit., n. 53, p.

578.

119 Z. Bauman, `Chasing Elusive Society' (2005) 18 International J. of Politics, Culture

and Society 123, at 135.

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periods of work experience and longer-term engagement in professional

classes

120

is likely to assist prospective graduates in developing this

understanding, and the absence of such opportunities to develop professional

self-awareness `may further disadvantage such lower status groups in social

and economic terms'.

121

Thus, those who had had legal work experience by

their second year, were slightly more likely than those without such experi-

ence to predict that `appearance/dress' could be a dimension of negative

performance on a formal vacation scheme, and students in the focus groups

reflected on their anxiety of `having only one suit'. In contrast, students

reported that many of the other prospective trainees had been rehearsing the

role of city lawyer for some time:

A few people already sort of knew each other and they were all strutting and

joking about the squash ladder and all the rest of it. Very much moulding

themselves into the City boy attitude already.

(Male, pre-92, TC, large corporate)

As Bauman puts it, their backgrounds equipped them with an ability of

intuitively `knowing how to move in the world'.

122

Fundamentally, while work experience is a key feature of the narrative of

success, I have argued that students already possessing socio-economic

advantages are more likely to secure work experience in the first place. It is

not a neutral opportunity which all prospective entrants can access and

experience in the same way. Although work experience is a process of

identity formation for all students (to varying degrees) ± of becoming

someone new in the social field ± unlike Turner's `liminal' subjects, the

vacation schemers do not sit outside social structures.

123

Rather, they are

deeply constrained within these structures during this process, by virtue of

their pre-existing dispositions.

124

Not all actors are equally capable of

demonstrating the required transformation:

It's not ingrained, there's not an automatic mechanism for a lot of people

. . .The vacation placement may be, for some, their first view of the outside

world in a business context . .. loads of people, . .. are hugely naive about the

world, and perhaps a lawyer's role in it . . .

(Male partner, large corporate, 16)

193

120 Schleef, op. cit., n. 100, pp. 23±4; F. Anderson-Gough et al., `Professionals,

Networking and the Networked Professional' (2006) 24 Research in the Sociology

of Organizations 231, at 239.

121 P. Sweetman, `Twenty-First Ce ntury Dis-ease? Habi tual Reflexivity or t he

Reflexive Habitus' (2003) 51 Sociological Rev. 528, at 544.

122 Bauman, op. cit., n. 119, p. 134.

123 V. Turner, Dramas, Fields and Metaphors: Symbolic Action in Human Society

(1974) 231±2.

124 Bourdieu, op. cit., n. 47, p. 56.

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CONSTRUCTING LEGAL EMPLOYABILITY WITHIN A UNIVERSITY

LAW SCHOOL

In this section, I argue that there are also deep-rooted structural constraints

upon law schools' ability to support student employability in readiness for

this transition. Of course, there is a legitimate question as to whether law

schools should do this at all. However, in critically analysing what is being

done in the name of employability within legal education, we can engage in

a critical, but constructive, dialogue with the legal profession, bring greater

scrutiny to bear on objectively neutral processes of recruitment and, indeed,

critique wider sector and policy claims about employability.

Of course, higher education does have a clear relationship with graduate

employment. While large numbers of law students progress to careers in a

range of other sectors, the legal profession remains the largest single sector

and it is one to which most students aspire (at the outset at least). Mid-way

through their second year, 63.8 per cent wanted to be solicitors with 17.8 per

cent aiming for the Bar. Although the broad orientation towards a career in

the legal profession was sustained into their third year, there were some

shifts. Thus, although those aiming to become solicitors had dropped overall

to 57.3 per cent, the growing awareness of the competitive marketplace

appeared to affect each cohort differently. For the pre-92 students this

appeared to indicate consideration of the solicitor route than the Bar,

whereas for post-92 students it meant other career options entirely.

125

As indicated in the previous section, there were gaps in student under-

standing and these were marked by differences on the basis of prior exposure

to professional settings and forms of cultural capital, with institution

attended often operating as a proximal marker. Despite widespread adoption

of the employability agenda within legal education there has, to date, been

relatively little analysis of its limits. The following section addresses this gap

and argues that legal employability is not only contingent upon its con-

struction by recruiters (see above), but on the field location of the institution

and the strength of the `possible self' of students. This motivation for

students to take steps to enhance their social or human capital is not

uniformly available ± and for the privileged, not even necessary.

Some law schools have embedded professional skills and employability

modules directly into the undergraduate curriculum.

126

Such modules

potentially help students develop their knowledge and understanding of

what is required. Legal education has also seen attempts to help students

translate their experiences into what the profession might find valuable ±

recognizing, for example, that there is a story to be told from the part-time

194

125 See, also, Lehmann, op. cit., n. 86, p. 214.

126 For example, R. Simmons, `City University introduces compulsory 'employability'

module to LLB' (2014), at

university-introduces-compulsory-employability-module-to-llb/3019606.article>.

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employment in a supermarket. PDP is designed to enable students to reflect

on skills, achievements, and goals in a structured way.

127

Yet the dangers are

that this is framed in the narrow, decontextualized manner characteristic of

the broad employability agenda. Clegg cautions that QAA guidance on PDP

assumes that:

these capacities [enhanced through PDP] are all designated as personal and

residing within the individual, rather than the structured powers and tendencies

that might make their realisation more or less possible for different groups of

students with differentiated access to social and cultural capital.

128

Work-placement modules, which involve st udents securing clinical

experience as a core part of their degree, are another strategy which seeks

to address employability and social mobility concerns directly within a

programme.

129

Learning through experiences can be an effective way to

develop knowledge and skills.

130

However, in terms of the transformation of

the employability of students from all backgrounds, the value of what is

learnt will depend on the work to which they are exposed, the ability of the

students to identify what they are learning and, ultimately, the preparedness

of the profession to recognize any distinction that such initiatives may bring.

The differentiation in the legal education sector,

131

characteristic of an

expanded HE sector,

132

is critical to the construction of legal employability.

This is borne out by the regard in which legal recruiters hold the status of

degrees awarded by different law schools. Thus, the Law Society recom-

mended that steps be taken to encourage the `removal of value judgements

about institution attended'.

133

Institution attended remains a key part of the

graduate recruitment strategy of the largest law firms and operates as an

important process of classification and distinction:

134

195

127 S. Bloxham and A. Cerevkova, `Reflective Learning, Skills Development and

Careers Management Online ± An Evaluation of a First Year Law Module' (2007) J.

of Information, Law & Technology (online); R. East, `A progress report on progress

files: The experience of one higher education institution' (2006) 6 Active Learning

in Higher Education 160; HEA, op. cit., n. 32, p. 12.

128 S. Clegg, `Critical readings: progress files and the production of the autonomous

learner' (2004) 9 Teaching in Higher Education 287, at 289.

129 For example, an assessed `work placement module' at the University of Westminster,

see e.ac.uk/resources/em ployer-engagement/l awschools/>. See,

also, D. Gill, `Self-reflection, self-confidence and the non-traditional student'

(2014), unpublished conference paper, W.G. Hart Legal Workshop.

130 F. Bloch, `The Andragogical Basis of Clinical Legal Education' (1982) 35

Vanderbilt Law Rev. 321; D. Kolb, Experiential Learning (1984).

131 J. Webb, `Post-Fordism and the Reformation of Liberal Legal Education' in The

Law School ± Global Issues, Local Questions, ed. F. Cownie (1999) 228, 232, 237.

132 Brown and Hesketh, op. cit., n. 43, p. 29.

133 Law Society, Legal Education and Training Review: Response to Discussion Paper

02/2012 (2012) 9. The steps proposed suggested that the Law Society had some

sympathy for these concerns.

134 Bourdieu, op. cit., n. 103, pp. 479±82.

ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School

We have a number of universities, 13 this year, that we have gone out to and

have a more active on-campus presence. And they traditionally, well they are

more of your redbrick ones and ones renowned for strong academics. No

[former polys].

(Female, graduate recruitment, large corporate, 4)

Students outside these networks do not get access to the `enhanced

employability' of careers sessions delivered by a recruiting firm. Moreover,

and potentially more significantly, it also undermines the employability

efforts of such law schools for their students. Regardless of how many PDP

modules have been undertaken, or how well their `commercial awareness'

has been assessed in a credit-bearing module, if their institution is not

deemed as having the appropriate `resonance in the air' or capable of

delivering comparable quality of degree, then the students' employability

will only have been enhanced in an extremely limited manner.

135

As Brown

and Hesketh put it, `such activities will typically be seen as ``compensatory'':

an attempt to make up for the personal and social deficiencies that set them

apart from the talent in top Universities.'

136

Thus, graduates' social and

cultural capital is further weakened by the institution's reputational capital.

Such institutional capital, through the relative standing of different law

schools, is powerfully reinforced on websites such as `The Student Room'.

Moreover, I argue that, because of this, the very act of emphasizing such

employability strands could denote a particular institution as one precisely in

need of providing such compensation ± `bronze . . . inauthentic' institutions

in Archer's terms.

137

It is striking to note that all of the case-studies within

Pegg et al. came from the post-92 sector. While work experience credit-

bearing modules might be valuable in terms of student enjoyment and self-

confidence,

138

they are unlikely to be viewed as carrying the same cultural

capital as traditional forms of legal work experience.

139

The problem of

`acceptable work experience', rather than `experience, born of necessity' is

an issue which acutely faces part-time law students.

140

Legal recruiters

instincti vely saw trad itional in formal work e xperience a s signallin g

196

135 Moorhead considers the experience of an American law school which implemented

various employability strategies into its curriculum only to see its graduate

destination statistics collapse. He poses the question whether narrow vocational

employability is really what employers want, at

com/2013/06/27/letr-ii-employability-may-not-be-what-really-employers-want/>.

136 Brown and Hesketh, op. cit., n. 43, p. 219.

137 L. Archer, `Diversity, equality and higher education: a critical reflection on the ab/

uses of equity discourse within widening participation' (2007) 12 Teaching in

Higher Education 635, at 641.

138 Gill, op. cit., n. 129.

139 See, also, Morley, op. cit., n. 79, p. 201 on employers' devaluation of work

experience undertaken for financial reasons.

140 A. Francis and I. McDonald, `After Dark and Out in the Cold: Part-time Law

Students and the Myth of ``Equivalency''' (2009) 36 J. of Law and Society 220, at

239.

ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School

`commitment', rather than valuing it for skills and attributes which might

equally be developed in credit-bearing modules. What is learnt on anything

other than the firm's own formal vacation scheme is not valued:

I found that every single firm that did ask me about my informal work

experience, none of them asked me what I had done. They never asked me

what I had learnt.

(Male, pre-92, TC, large corporate)

The weakened reputational capital of particular institutions may have an

additional, negative effect on the self-worth of non-traditional students, and

indeed their ability to draw successfully upon their `possible self'. Employ-

ability literature stresses the need for students to connect their current studies

to their future employment. An effective conception of legal employability

has, therefore, to include reference to students' possible selves. Markus and

Nurius define possible selves as `individuals' ideas about what they might

become, what they would like to become and what they are afraid of

becoming.'

141

Stevenson and Clegg consider the ways in which students are

able to connect current activities to `their future, possible selves . . . as

employable subjects'.

142

In this context, the motivational dimensions of the

future, possible self are emphasized. Thus, positive emotions about the future

self can increase an individual's efficiency and creativity in the achievement

of their goals.

143

Markus and Nurius identify possible selves as incentives for current beha-

viour

144

(for example, participation in networking events).

145

As Stevenson

and Clegg highlight:

students who have highly elaborated possible selves are more likely to aim

higher, set clear goals, persist in the face of challenges to their possible self,

achieve academically, set higher career goals and put actions into place to

achieve them.

146

The difficulty is, of course, that all possible selves are not uniformly

available to all.

147

Possible selves can only include those selves that it is

possible for that individual to perceive. I argue that those students who were

most constrained by their present circumstances and focused only on

surviving the present were those from more disadvantaged backgrounds.

They lacked the family support that Brown argues has been critical to the

197

141 Markus and Nurius, op. cit., n. 9, p. 954.

142 J. Stevenson and S. Clegg, `Possible selves: students orientating themselves towards

the future through extracurricular activity' (2011) 37 Brit. Educational Research J.

231, at 232.

143 id., p. 233.

144 Markus and Nurius, op. cit., n. 9, p. 965.

145 D. Manderson and S. Turner, `Coffee House: Habitus and Performance Among Law

Students' (2006) 31 Law and Social Inquiry 649, at 653.

146 Stevenson and Clegg, op. cit., n. 142, p. 235.

147 Bourdieu, op. cit., n. 47, p. 68.

ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School

reinforcement of middle-class achievement and status over the genera-

tions.

148

The inability to perceive possible selves and thus, use this to

motivate and construct employability work appears to be a powerful limita-

tion on the ability of law schools to put into pla ce transformative

employability agendas for the benefit of all their students. Partial inter-

ventions such as `work experience' will struggle to challenge structural

constraints.

A striking theme, from both firms and students, was that students did not

engage sufficiently with the employability opportunities that were available:

when we've done [new universities] in the past, the volume of people has been

very poor ± it just hasn't been worth the cost of taking the lawyers out of the

business.

(Male partner, magic circle, 11)

This exacerbates firms' expectations about the type and quality of students

with which they will engage. It is difficult to be surprised that students do not

have a particularly well-developed conception of their potential site of future

employment when many aspects of their future lives are ill-formed or subject

to negative signals from the profession.

149

Moreover, in the context of

economic downturn, the risks associated with further study are likely to

weigh heavily on these students.

150

Some of the successful students reflected

on the reasons why others were not engaging:

I think [a kind of fear] is a fair way of describing a lot of people's attitudes. It's

like they apply but don't want to open the letter.

(Male, pre-92, TC, large corporate)

The people who say that [there are no jobs] are normally the ones who haven't

done anything . .. Some of my friends who didn't apply have no idea what they

want to do.

(Female, pre-92, TC, national multi-departmental)

The difficulty however, is that the construction of one's future self ± what

enables one to see that, for example, a career in the legal profession might be

`possible' ± will be dependent, as Bourdieu argues, upon one's past

experiences that construct the sense of future possibilities.

151

The successful

students were sufficiently reflective to identify the strong foundations that

their own backgrounds had brought them ± particularly in terms of securing

access to informal legal work experience:

198

148 Brown, op. cit., n. 79.

149 See data above which highlights the ways in which the students' abilities to

successfully enact the legal graduate identity were deeply stratified on institutional

and class lines.

150 C. Callendar and J. Jackson, `Does the fear of debt constrain choice of university

and subject of study?' (2008) 33 Studies in Higher Education 405.

151 Bourdieu, op. cit., n. 47, p. 68.

ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School

I had a bit of boost and fortune at the very foundations of my career . .. If you

prepare yourself [or are able to prepare yourself], it's not a harsh reality

you're going to be facing, but just the next stage in life.

(Male, pre-92, TC, large corporate)

Fundamentally, because many students from non-traditional backgrounds

have not been able to prepare themselves (indeed may find it very difficult

ever to do so), a future in the legal profession is not just the next stage and,

thus, their possible self cannot be effectively enlisted to drive motivations for

current employability work.

152

Lehmann notes that many students re-

appraise their career goals as fear grows about their capacity to realize

previously held aspirations.

153

CONCLUSION: POSSIBLE SELVES AND THE CHALLENGE OF

DISTINCTION FOR LEGAL EDUCATION

Recognizing the uncertainty of the future possible self for students from non-

traditional backgrounds is critical for a nuanced understanding of legal

employability. For more privileged students, the future is knowable, but for

many first-generation participants, attendance at university has not only

already exceeded familial/social expectations but may generate tensions with

those expectations.

154

The future self beyond this is unknowable and

unsettling and, as such, lacks purchase in motivating students to avail

themselves of the support that is available within institutions. There is an

opportunity for individuals to construct their own employability (and for

HEIs to support them in so doing) but crucially, this is `not in the context of

their own choosing'.

155

It is done `within a wider societal context of

opportunities and constraints'.

156

This article has argued that there are

fundamental tensions in seeking to align the employability and social

mobility agendas to the advantage of all students seeking a career in the legal

profession. Moreover, access to, and participation in work experience

opportunities on their own is unlikely to transform a student's employability

or increase their social mobility precisely because it leaves untouched the

fundamental constraints shaping access to the legal professions.

Although this is not the primary focus of this article, a number of

strategies could be deployed. LETR recommends that access to all infor-

mally arranged work experience is placed on a similar basis to formal

199

152 Markus and Nurius, op. cit., n. 9, p. 965.

153 Lehmann, op. cit., n. 86, p. 214.

154 D. Reay, `A Risky Business? Mature Working Class Women Students and Access to

Higher Education' (2003) 15 Gender an d Education 301; B. Read et al.,

`Challenging Cultures: student conceptions of ``belonging'' and power at a post-

92 university' (2003) 28 Studies in Higher Education 261.

155 Brown and Hesketh, op. cit., n. 43, p. 227.

156 id., p. 226.

ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School

vacation schemes.

157

This seems unlikely to gain much traction when the

informal market of `work experience favours' traded between friends within

different professional service sectors, or to enhance the business profile of

the firm, seems entrenched.

158

At the very least, an alternative scheme,

perhaps partnering groups of firms with university law schools and their

outreach networks, could provide access to experience designed primarily

for exposure and education rather than assessment. There may also be other

effective learning and teaching approaches. However, they must be deve-

loped not only with an understanding of legal employability as a complex,

negotiated, and situated process, but through sharing this conception of

employability with students.

Employability and social mobility are, in different ways, unspoken

threads flowing through the LETR recommendations, and have been a

significant theme in the regulators' responses.

159

Alternative pathways to

qualification (and indeed new roles within legal services) are interesting

propos als and f urther c ompli cate tra ditio nal cons truct ions of le gal

employability and the ability of students from different socio-economic

backgrounds to successfully demonstrate it. However, their potential as a

vehicle for delivering social mobility may be overstated. Alternative path-

ways to qualification have always existed (for example, legal executives

160

)

with little transformational impact. There are real concerns about the

emergence of a two- or three-tier legal profession, stratified by background

rather than function.

161

The firms, universities, and individuals who do not

need to explore alternatives will not do so ± and those that do, will

automatically denote themselves as somehow lacking.

162

Of course, in

developing our theoretical understanding about the complex relationship

between social mobility and the legal profession, we cannot disentangle the

discussion from debates about society's priorities around child poverty,

wider political and fiscal settlements, and fair educational opportunities for

all.

Legal employability has to take account of the differential access that

students from less advantaged socio-economic backgrounds have to the

resources that will enable them to become not just employable, but employed

as a member of the legal profession. I have argued that the variable student

200

157 LETR, op. cit., n. 1, paras. 6.55±6.58.

158 Francis, op. cit., n. 108, pp. 50±1.

159 SRA, op. cit., n. 41.

160 A. Francis, ` ``I'm Not One Of Those Women's Libber Type People But . . .'':

Gender, Class and Professional Power Within the Third Branch of the English Legal

Profession' (2006) 15 Social and Legal Studies 475.

161 However, we do need to recognize that changes in legal practice are likely to see a

greater diversity of roles within legal services. The acid test will be the ease with

which individuals from different backgrounds are able to move within and across

these roles.

162 Francis and McDonald, op. cit., n. 140; Brown and Hesketh, op. cit., n. 43, p. 219.

ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School

understanding of the subtle messages that they have to grasp in order to

successfully negotiate the legal professional field means that `employability'

should not be read simply as an outcome to which students work towards.

While agency is possible within Bourdieu's framework,

163

what is required

within specific fields is not necessarily either intelligible to or demonstrable

by graduates from particular backgrounds, or who have attended particular

educational institutions.

164

One of the crucial lessons from this article is the importance of

`additionality'. There is limited value in compulsory credit-carrying `cultural

capital'. Firms a re looking for app licants who stand o ut. Students,

particularly those from non-traditional backgrounds, need to be supported

in understanding this and then in accessing opportunities, but it does need to

come from them. The data presented here provides compelling evidence that

work experience is not the magic bullet to address employability and social

mobility.

Earlier research highlighted the difficulties that women experience in

demonstrating the `commitment' required for partnership and that initiatives

such as flexible working and maternity leave do not deliver the anticipated

benefits.

165

I have argued that `legal employability' is similarly constructed

in such a way that even opportunities and initiatives, such as work

experience or other curriculum interventions, designed to strengthen the

employability of all graduates irrespective of background, are likely to be

experienced differentially. The challenge is to maintain constructive debate

with the profession, to develop critical readings of employability for our

students and to acknowledge the structural constraints in which opportunities

are seized and lost.

201

163 M. Archer, Realist Social Theory: The Morphogenic Approach (1995) 247±93.

164 Tomlinson, op. cit., n. 43, pp. 85±6.

165 H. Sommerlad and P. Sanderson, Gender, Choice and Commitment (1998).

ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School

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Legal Education, Social Mobility, and Employability: Possible Selves, Curriculum Intervention, and the Role of Legal Work Experience

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