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Educational background and access to legal academia

  • Mark Davies (a1)

Abstract

The focus of this paper is upon the educational background of academic lawyers in England and Wales and the extent to which qualifications from certain institutions may be seen as acting as a proxy for social class. In recent years higher educational background and socio-economic background have been significant topics of research relating to entry to the legal professions and judiciary in England and Wales. There is a relative absence of such research relating to academic lawyers. The research discussed in this paper aims to close that gap. The paper argues that critiques relating to the elite nature of the traditional legal professions in terms of educational background have parallels within the academic legal community, evidenced by a dominance of those educated at Cambridge, Oxford and other Russell Group institutions, with relatively lower proportions of graduates from other sectors, most notably the post-1992 universities. The paper further argues that economic hurdles to entry to an academic legal career are significantly higher than those for other law related careers, potentially exacerbating issues of socio-economic exclusion. The conclusion drawn is that law schools should engage proactively with measures to expand opportunities for entrants into the academic legal community from candidates from a much wider range of educational backgrounds.

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1 Wakeling, P and Savage, MEntry to elite positions and the stratification of higher education in Britain’ (2015) 63 Sociological Review 290.

2 See for example Savage, M Social Class in the 21st Century (London: Pelican, 2015) ch 8.

3 See for example Cownie, F Legal Academics: Culture and Identities (Oxford: Hart, 2004) pp 176177, citing Wells, CWorking out women in law schools’ (2001) 21 Legal Studies 116; Collier, RThe changing university and the (legal) academic career – rethinking the relationship between women, men and the “private life” of the law school’ (2002) 22 Legal Studies 1.

4 In terms of the latter, distinctions may depend upon the subtleties of job description, as well as accuracy of recollection. Parents who are, for example, solicitors, barristers or surgeons may be confidently classified, but within the multi-layered hierarchies of large business organisations job titles may give only a limited amount away about status and seniority. Fiona Cownie, for example, acknowledges, in her 2004 study involving 54 academics in English law schools, the difficulties and disagreements about the nature of class and self-categorisation: Cownie, above n3, pp 176–180.

5 See for example Sutton Trust Briefing Note: The Educational Backgrounds of the UK's Top Solicitors, Barristers and Judges (June 2005), available at http://www.suttontrust.com/wp-content/uploads/2005/05/Comparison_educational_backgrounds.pdf.

6 Bourdieu, P (trans Collier, Peter) Homo Academicus (Cambridge: Polity Press, 1988) p 84.

7 Bourdieu, PCultural reproduction and social reproduction’ in Karabel, J and Halsey, AH (eds) Power and Ideology in Education (Oxford: Oxford University Press, 1977) p 487. The latter constitutes one of the three forms of cultural capital identified by Bourdieu – capital in its institutionalised form, such as qualifications and titles. The other two forms are embodied capital, for example regional accent, and objectified capital – for example an expensive car or watch.

8 For example, Bradney, A and Cownie, FBritish university law schools in the twenty-first century’ in Hayton, DJ (ed) Law's Future(s) (Oxford: Hart, 2000) p 13; Cownie, above n 3; Bradney, AElite values in the twenty-first century, United Kingdom law schools’ (2008) 42 Law Teacher 291; Cocks, R and Cownie, F A Great and Noble Occupation! The History of the Society of Legal Scholars (Oxford: Hart, 2009).

9 For example, Cownie, FWomen legal academics – a new research agenda?’ (1998) 25 Journal of Law and Society 102; Wells, CWorking out women in law schools’ (2001) 21 Legal Studies 116; Collier, RThe changing university and the (legal) academic career – rethinking the relationship between women, men and the “private life” of the law school’ (2002) 22 Legal Studies 1.

10 Cocks and Cownie, above n 8, pp 240–241.

11 See for example Cownie, above n 3, pp 177–180.

12 For example, Galanter, M and Roberts, SimonFrom kinship to magic circle: the London commercial law firm in the twentieth century’ (2008) 15 International Journal of the Legal Profession pp 143, 168; Sommerlad, H, Harris-Short, S, Vaughan, S and Young, R (eds) The Futures of Legal Education and the Legal Profession (Oxford: Hart, 2015); Sommerlad, HThe “social magic” of merit: diversity, equity, and inclusion in the English and Welsh legal profession’ (2015) 83 Fordham Law Review 2325; Vaughan, SGoing public: diversity disclosures by large U.K. law firms’ (2015) 83 Fordham Law Review 2301.

13 Francis, ALegal education, social mobility and employability: possible selves, curriculum intervention and the role of legal work experience’ (2015) 42 Journal of Law and Society 173 at 196; Purcell, K, Morley, M and Rowley, G Employers in the New Graduate Labour Market: Recruiting from a Wider Spectrum of Graduates (Bristol: Employment Studies Research Unit and The Council for Industry and Higher Education, 2002), cited by Morley, LThe X factor: employability, elitism and equity in graduate recruitment’ (2002) 2 Twenty-First Century Society 191 at 196.

14 P Kirby Leading People 2016 (February 2016) Sutton Trust p 12.

15 Ibid, p 7.

16 Ibid, p 14, citing Ashley, L, Duberley, J, Sommerlad, H and Scholarios, D A Qualitative Evaluation of Non-Educational Barriers to the Elite Professions (London: Social Mobility and Child Poverty Commission, 2015).

17 P Bolton Higher Education and Social Class Standard Note: SN/SG/620 18 June 2010 House of Commons Library.

18 Office for Fair Access Outcomes of Access Agreement Monitoring for 2014–15, paras 21, 65–66, available at https://www.offa.org.uk/wp-content/uploads/2016/05/2016.04-Outcomes-of-access-agreements-monitoring-1.pdf.

19 Ibid.

21 HESA, available at https://www.hesa.ac.uk/.

22 Free school meal eligibility is based upon criteria such as family eligibility for receipt of certain welfare benefits and, as such, is a ready identifier of the poorest families in society. By way of illustration, in January 2016 approximately one in seven pupils were eligible: Department for Education Schools, Pupils and Their Characteristics: January 2016, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/552342/SFR20_2016_Main_Text.pdf.

23 Fair Access to Professional Careers: A Progress Report by the Independent Reviewer on Social Mobility and Child Poverty May 2012 p 4, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61090/IR_FairAccess_acc2.pdf. See also Panel on Fair Access to the Professions Unleashing Aspiration: The Final Report of the Panel on Fair Access to the Professions 2009.

24 Defined as part of the ‘Great British Class Survey’ as the most privileged class in Great Britain. Elites have high levels of all three capitals (economic, social and cultural) with high amounts of economic capital setting them apart. See website available at http://www.bbc.co.uk/science/0/21970879.

25 Savage, M Social Class in the 21st Century (London: Pelican, 2015) p 238.

26 In the context of the solicitors’ profession, Vaughan notes that direct data regarding the class or socio-economic background of employees is not available, hence the value of secondary data. Vaughan, above n 12, at 2306.

28 Coiffait, L (ed) Blue Skies: New Thinking about the Future of Higher Education: A Collection of Short Articles by Leading Commentators UK 2014 edn (London: Pearson, 2014) p 18, available at http://pearsonblueskies.com/wp-content/uploads/2012/09/4136.BlueSkies_A5_Web.pdf.

29 J Ching, P Maharg, A Sherr and J Webb (Lead Researchers) Setting Standards: The Future of Legal Services Education and Training Regulation in England and Wales (2013), available at http://www.letr.org.uk/the-report/index.html.

30 LETR para 6.2.

31 Ibid, para 6.6.

32 Ibid, paras 6.11–6.12.

33 See for example Panel on Fair Access to the Professions Unleashing Aspiration: The Final Report of the Panel on Fair Access to the Professions 2009, available at http://webarchive.nationalarchives.gov.uk/+/http://:/www.cabinetoffice.gov.uk/media/227102/fair-access.pdf; Fair Access to Professional Careers: A Progress Report by the Independent Reviewer on Social Mobility and Child Poverty May 2012, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61090/IR_FairAccess_acc2.pdf.

34 Sommerlad, above n 12, 2331, citing Galanter and Roberts, above n 12, at 168.

35 The remaining 3% were educated abroad. Fair Access to Professional Careers, above n 33, table 3.1 at 32.

36 Bar Standards Board and the General Council of the Bar Barristers’ Working Lives: A Second Biennial Survey of the Bar (2013) p 23, available at https://www.barstandardsboard.org.uk/media/1597662/biennial_survey_report_2013.pdf.

37 This is an informal but widely used term within legal circles to denote the most prestigious, usually five, solicitors’ firms with headquarters in London. They sit at the top of the legal hierarchy in terms of reputation and fee income/earnings per partner. Because of the dominant position of a number of Anglo-Welsh solicitors’ firms globally, in turn the magic circle also enjoy high status internationally. For further discussion, see website available at http://www.chambersstudent.co.uk/law-firms/types-of-law-firm/magic-circle-law-firms.

38 Sutton Trust Briefing Note: The Educational Backgrounds of the UK's Top Solicitors, Barristers and Judges June 2005, available at http://www.suttontrust.com/wp-content/uploads/2005/05/Comparison_educational_backgrounds.pdf.

39 Vaughan, above n 12, at 2314, citing Ashley, LMaking a difference? The use (and abuse) of diversity management at the UK's elite law firms’ (2010) 24 Work Emp & Soc 711; Ashley, L and Empson, LDifferentiation and discrimination: understanding social class and social exclusion in leading law firms’ (2013) 66 Hum Rel 219 at 221; Rolfe, H and Anderson, TA firm choice: law firms' preferences in the recruitment of trainee solicitors’ (2003) 10 International Journal of the Legal Profession 315 at 322.

40 PRIME was launched in 2011 as a collaborative approach to social mobility by a group of leading law firms. Around 30 hours of contact time was pledged to each disadvantaged school-age student participant, to help them to develop skills and to inform them about opportunities. See website at http://www.primecommitment.org/.

41 See website at http://www.pegasus.me/.

42 The latter has been endorsed by the Law Society, the representative body for solicitors in England and Wales, which has produced a guidance document to facilitate this approach. The Law Society Using Blind and Contextual Processes for the Recruitment of Trainee Solicitors: Encouraging Social Mobility Guidance and Toolkit for England January 2016.

43 See for example K Hall ‘Clifford Chance broadens diversity with ‘CV blind’ scheme’ Law Society Gazette 10 January 2014, available at http://www.lawgazette.co.uk/practice/clifford-chance-broadens-diversity-with-cv-blind-scheme/5039349.fullarticle.

45 An impressive uplift if independently verified and if it proves to be sustainable, available at https://www.rarerecruitment.co.uk/news.php?t=news&c=498#.V82_yPkrLal.

46 See website at https://www.theguardian.com/education/ng-interactive/2016/may/23/university-guide-2017-league-table-for-law. An additional 12 institutions are listed as teaching law but not meeting the criteria to be included in the main table.

47 Savage, above n 25, at 232.

48 An example of the latter is developed from the findings of the Great British Class Survey, ibid at 242–243.

49 The ‘post’ 1992 descriptor relates to the date point at which a number of non-university higher education institutions, mainly polytechnics, were granted university status. In their former guise a large proportion of these institutions had been teaching students to degree level and in some instances beyond for many years before 1992. For a more detailed discussion of the nature and legal status of different types of higher education institution in the UK see Farrington, D and Palfreyman, D The Law of Higher Education (Oxford: Oxford University Press, 2nd edn, 2012).

50 Wakeling, P and Savage, MEntry to elite positions and the stratification of higher education in Britain’ (2015) 63 Sociological Review 290 at 303.

51 For ease of reference the term ‘law school’ is used irrespective of whether the actual unit title was school, department, faculty or other name.

52 For readers unfamiliar with these UK classifications, the Russell Group is a self-selected group, established in 1994, currently consisting of 24 research-intensive universities. Twenty are based in England, with the remainder in Northern Ireland, Scotland and Wales. All Russell Group members are also pre-1992 universities. The Universities of Oxford and Cambridge are Russell Group members, but for the purposes of this paper will be considered as a category on their own. As previously noted, in 1992 a number of higher education institutions, notably polytechnics, acquired university status as a result of the provisions of the Further and Higher Education Act 1992. In this paper these are referred to as post-1992 universities, whereas those institutions which had university status before the provisions of the Further and Higher Education Act 1992 came into force will be referred to as pre-1992 universities.

53 Three Russel Group institutions from the north of England, two from the Midlands, one from London and two from the south of England; one pre-1992 institution from the north of England, two from the Midlands, one from London and four from the south of England; one post-92 institution was from the north of England, three from the Midlands and four from the south of England. In order to preserve anonymity these geographical categorisations are loosely defined. Consideration was given to further filtering based, for example, on league table rankings, but the proliferation of league tables, each making their own particular use of data and how they should be weighted, risked introducing a degree of complexity which was deemed unnecessary for the purpose of the study.

54 In this regard, useful lessons were drawn from Epstein and Martin regarding the importance of considering the balance between clarity and necessary degree of precision in data presentation. Epstein, L and Martin, ADQuantitative approaches to empirical legal research’ in Cane, P and Kritzer, HM (eds) The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010) pp 901925 at 917–924.

55 It is acknowledged that as a two-member set, the veil of anonymity covering Oxbridge 1 and Oxbridge 2 is rather thin. However, given the importance of Oxford and Cambridge in much of the wider literature regarding equality, access and career opportunities, it would have removed the opportunity for potentially important findings had these two institutions been included (or not) as anonymous members of the larger Russell Group set.

56 The two largest ‘for-profit’ providers of legal education, BPP University and the University of Law, were excluded because of the relative newness of their undergraduate provision and their longer-standing dominance in postgraduate professional education, which at present largely sets them apart from the other universities in the study.

57 Precise data will vary over time in terms of the ebbs and flows of law graduate numbers in any particular year. The data presented are intended to be illustrative of the comparative position and draw from a combination of HESA, Law Society and UCAS data for a sample 5-year period, 2009–2014.

58 See for example Ching et al, above n 29, at para 6.26, and associated Discussion Paper 02/2011 regarding the influence of a range of cultural and economic factors on performance in public examinations such as A levels.

59 In the absence of a centralised admissions process comparable to that for undergraduate degrees, postgraduate data are more difficult to identify. However, a reasonable estimate can be made by comparing data made available by Oxford and Cambridge themselves, and overall statistics for postgraduate law study produced by the HESA.

60 The Oxbridge approach to upgrading, without further study, a first degree to master status in certain circumstances was ignored. The Oxford Bachelor of Civil Law (BCL) was included in the count of master's level degrees.

61 See for example Legal Services Board recommendations that education and training requirements should be set at the minimum level necessary to ensure competence (see Outcome 3 at http://www.legalservicesboard.org.uk/what_we_do/regulation/pdf/20140304_LSB_Education_And_Training_Guidance.pdf ) and SRA proposals regarding the possible introduction of a Solicitors Qualifying Exam (SQE), website available at http://www.sra.org.uk/sra/news/press/case-SQE-strong.page.

62 Historically, the solicitors’ profession, by far the largest of the Anglo-Welsh legal professions, has required the payment of minimum salaries. This requirement was removed by the Solicitors Regulation Authority in 2014, although the Law Society has continued to recommend that firms pay a minimum salary. For 2016 the Law Society recommended a minimum of £18,547 for trainees outside London and £20,913 in London. Actual salaries can be far higher, depending upon the market conditions within which particular firms operate. Trainee salaries of £40,000 and upwards are not uncommon in large London commercial firms.

63 For most of the participants all or almost all of this experience was in academia, but the definition was made slightly broader to include the few, for example, who had spent a considerable period in legal practice. Experience rather than seniority in terms of job title is used as the measure to avoid problems which might otherwise have arisen from the fact that some institutions had proportionately fewer professorial or readership posts than others.

64 For all definitions, experience undertaking tuition as a doctoral student or similar was not included.

65 It is acknowledged that funding opportunities are available for doctoral study, but historically these have been highly competitive, and law students have usually been in competition with applicants from across a number of other academic disciplines. Recent developments in government-supported postgraduate loans may provide enhanced opportunities for higher study into the future, but as loans they still place prospective academics at a significant economic disadvantage – increasing their overall debt levels when their equivalents undertaking a period of recognised training (formerly called a training contract) to qualify as a solicitor or pupillage to complete their training as a barrister will be receiving free training and a salary or equivalent. Many law schools provide paid teaching hours for some of their doctoral students but, in terms of guaranteed income and overall value, these arrangements tend to be far less generous than the earning capacity of trainee solicitors or pupil barristers.

66 These figures can be calculated from average graduate salary data, available from, for example, Department for Business, Innovation and Skills Graduate Labour Market Data. Law-specific figures can be elicited from the Law Society minimum recommended trainee salary figures discussed earlier, and from specific trainee/pupil and recently qualified earnings data for solicitors and barristers often featured in law specific news sources. Similarly, from earnings data collected by professional regulatory and representative bodies such as the SRA, BSB, Law Society and Bar Council.

67 Twining, WL, ‘Goodbye to Lewis Eliot: the academic lawyer as scholar’ (1980) Journal of the Society of Public Teachers of Law 2.

68 Account was taken of moves between Oxford and Cambridge, but not of moves between colleges within Oxford or Cambridge.

69 Becher, T and Trowler, PR Academic Tribes and Territories: Intellectual Enquiry and the Culture of Disciplines (Buckingham: Open University Press, 2nd edn, 2001) p 134.

70 In numerical terms, for example, most LPC places are provided by the ‘for profit’ providers, BPP University and the University of Law. However, there are 16 post-1992 English law schools which also offer the LPC. In contrast, there are only two pre-1992 English law schools still in the LPC market.

71 Becher and Trowler, above n 69, at 81.

72 QAA UK Quality Code for Higher Education – Chapter B7: External Examining, p 10, available at http://www.qaa.ac.uk/en/Publications/Pages/Quality-Code-Chapter-B7.aspx.

73 A Sanders, ‘Poor thinking, poor outcome? The future of the law degree after the Legal Education and Training Review and the case for socio-legalism’, in Sommerlad et al, above n 12, at 150–151.

74 In the context of applications and shortlisting, an example of how this can be applied even at the highest legal level is illustrated by the Spring 2017 recruitment process for new Supreme Court Justices. In a stated attempt to increase diversity, the application pack, after setting out the minimum eligibility requirements as prescribed by the Constitutional Reform Act 2005 and Tribunals, Courts and Enforcement Act 2007, proceeds by means of ‘Criteria for appointment’ expressed in terms of: ‘1. Intellectual capacity, knowledge and expertise … 2. Judicial and Personal qualities … 3. Understanding and fairness … 4. Communication skills…’ (page 6), rather than specific qualifications, available at https://www.supremecourt.uk/docs/judicial-vacancies-2017-information-pack.pdf. At the time of writing, it remains to be seen what impact this approach may have on the make-up of the current white, predominantly male, fee-paying school, Oxbridge dominated Supreme Court but, on paper at least, it illustrates that with careful consideration attempts can be made to address long-standing hindrances to equality.

75 Longitudinal research studies have found that fewer than 50% of social science and humanities doctoral graduates secure employment in higher education teaching and/or research roles – see for example C Ball, T Vorley, T Hughes, R Moreton, P Howe and T Nathwani The Impact of Doctoral Careers: Final Report (Leicester: CFE Research, November 2014), available at http://www.rcuk.ac.uk/documents/skills/timodcfullreport-pdf/. For examples of more discursive pieces discussing the challenges faced by those wishing to secure and develop an academic career, see R Gill ‘Breaking the silence: the hidden injuries of neo-liberal academia’ in R Ryan-Flood and R Gill (eds) Secrecy and Silence in the Research Process: Feminist Reflections (London: Routledge, 2009) p 228; ‘Academics anonymous: so many PhD students, so few jobs’ The Guardian May 2014, available at http://www.theguardian.com/higher-education-network/blog/2014/may/23/so-many-phd-students-so-few-jobs. In contrast, retention rates of newly qualified solicitors at the firms with which they trained ranges from 75% to around 90%, with some of those not being retained by their training firm securing a post-qualification position elsewhere. See website at http://www.chambersstudent.co.uk/where-to-start/newsletter/trainee-retention and Law Society annual statistical data at http://www.lawsociety.org.uk/support-services/research-trends/annual-statistics-report-2015/. Overall, drawing from data of this type, it can be concluded that a majority of doctoral graduates will not secure a university academic role, whereas a very significant majority of trainee solicitors will secure a practice position on qualification.

76 Thompson, DWWidening participation and higher education: students, systems and other paradoxes’ (2008) 6 London Review of Education 137 at 145, cited in Wardrop, A, Hutchings, M, Collins, B, Eccles, S, Heaslip, V, Hunt, C and Pritchard, CTroubling ideas for widening participation: how higher education institutions in England engage with research in their access agreements’ (2016) 18 Widening Participation and Lifelong Learning 84 at 90.

77 Sommerlad, above n 12, at 2331.

78 Ibid, at 2327, citing Williams, PA, The Alchemy of Race and Rights, (Cambridge, MA: Harvard University Press, 1991) p 99.

79 Sommerlad, above n 12, at 2347.

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