So many events recently have made me think about perspective – the point from which people view the world, and that perspective’s import. Perspective in the public is antipodal in far too many ways. Yet, to me, it seems obvious that lawyers must have as part of their professional identity – character and qualities that distinguish lawyers as professionals – a more open-minded world view because of their responsibility to the legal system. Clearly, that professional identity needs fostering. Yes, developing that professional identity while a law student, maybe even checking it later as a lawyer, is probably more challenging today than ever. As at least one author points out[i] and a quick look at the news shows, professionalism of lawyers is not at its best – from lack of civility to over-contentiousness and a willingness to distort facts to win at all costs. The risks when lawyers lack or lose sight of a bigger picture remind me of Thomas Hobbes’s question about how society can exist at all when everyone is driven by self-interest or self-focus.[ii] Those concerns are at least as troubling today for law schools and their current and future students especially where law schools are viewed more as businesses, and students come in bargaining not so much for opportunities in an educational program or to work with a gifted scholar or teacher, but to demand more money to attend a school.[iii] This apparent focus on self-interest (and I mean the statement as an observation, not a judgment here) when juxtaposed against a lawyer’s broader professional purpose, inevitably creates a kind of social dilemma[iv] for students if not for lawyers. Now is surely a time when more is needed from law schools to help students cultivate perspective given their future role in the legal system.
Historically, similar concern about the role of lawyers have been raised. “The law is the witness and external deposit of our moral life,” wrote Oliver Wendell Holmes wrote in 1897;[v] which was in part to say that positions advocated and law that results reflect who we are as a civilization and that as lawyers, we bear responsibility for more than our own interests or even our client’s results. In this context, after noting how a lawyer’s training is principally in logic and judicial decisions written in the “language of logic,” Holmes wrote, “Behind the logical form lies a judgment as to the relative worth and importance of competing [] grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.”[vi] Then, to encourage education toward that judgment beyond “textbooks and the case system, and all the machinery with which a student comes most immediately in contact,” Holmes wrote, “I cannot but believe that if the training of lawyers led them habitually to consider more definitively and explicitly the social advantages on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they are taking sides upon debatable and often burning questions.”[vii] In other words, Holmes considered legal education the place to develop a perspective that also looks to social consequences more broadly and, as part of professional responsibility, to consider and weigh the impact.
Justice Cardozo similarly wrote of the legal profession itself, “Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them.”[viii] The Model Rules of Professional Responsibility Preamble in turn, reads, “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.” And, the ABA requires law schools to establish goals for student competency in not only substantive and procedural law, analysis, research, communications, but also ethical practice skills to fulfill responsibilities to clients and the legal system, as well as to establish goals in “other professional skills needed for competent and ethical participation as a member of the legal profession[ix].” By setting such standards, including cultivating diversity, the legal profession, through the American Bar Association and the law schools it accredits, has provided a professional standard that requires lawyers, to be aware of, consider, and weigh broader social contexts and values.
Set against history, the standards’ language allows the inference then that competent and ethical membership in the profession – professional identity – is “fair personal character” and something in addition to “ethics” – the minimum standard of conduct and professionalism or civility[x]. Professional identity needs to include the internalized ability and willingness to both be aware of one’s own perspective and its effect as well as to consider and assign value to societal consequences.[xi] This combination of private and professional character would be in line with that suggested by Holmes and Cardozo. A lawyer’s habitual awareness of perspective and its effect, followed by intentional decision-making coupled with an attitude of respect toward others and the legal system seem a good starting point as components of professional identity. [xii]
One tool among several[xiii] to help students appreciate perspectives on the road to professional identity is social value orientation. Social value orientation is a construct derived from values research that measures perspective or motivations that influence actor behavior in relation to other actors when the outcomes and resource allocation[xiv] of their interaction are interdependent – a psychological categorization of perspectives that may underly say, use of the Risk-Utility balancing test, for example. Within the social valuation orientation (SVO) framework, there are several categories of orientations including individualistic (pro-self); cooperative (prosocial); competitive (also pro-self); altruistic; self-sacrifice; equalitarian, and nihilism.[xv] One author provides the following overview of several main orientations.[xvi]
- Generosity:
- Enhancement of Outcomes for Other
- Pro-social Orientation:
- Enhancement of Joint Outcomes (Cooperation), and
- Enhancement of Equality of Outcomes (Egalitarianism)
- Individualism:
- Enhancement of Outcomes for Self
- Competition:
- Enhancement of Relative Outcomes in Favor of Self
- Aggression:
- Reduction of Outcomes for Other
The middle three orientations are most common, and discussion here is limited to those.[xvii]
Briefly, then, for this purpose, social value orientation can be viewed in two broad categories: pro-self and pro-social, [xviii] and within each of those two broad categories, researchers have paired traits: cooperative (pro-social); individualistic (pro-self), and competitive (pro-self).[xix] For anyone who has taught negotiations starting somewhere in the last century (!), these categories sound familiar as negotiation perspectives (competitive-cooperative; adversarial-problem solving). Generally speaking, most people’s orientation ranges, and some studies indicate no one is fully altruistic or cooperative, for example. Researchers have conducted extensive measurements of social value orientation and preferred outcomes over decades using a variety of measures. One such relatively straight forward personal assessment tool includes a set of questions where the participant selects from three options that allocate points between self and others. Different “incentives” may be included. For example, participants may be told that the more points they accumulate, the better for them and that the same is true for the “other.” They may be told that the greater the difference in point spread, the better. The measurement tool might look like this[xx]:
For each of the nine choice situations below, circle A, B or C, depending on which column you prefer most. Please proceed in the order the choices appear. (only three choice situations are given here.)
| A | B | C | |
| You Get | 480 | 540 | 480 |
| Other Gets | 80 | 280 | 480 |
| A | B | C | |
| You Get | 560 | 500 | 500 |
| Other Gets | 300 | 500 | 100 |
| A | B | C | |
| You Get | 520 | 520 | 580 |
| Other Gets | 520 | 120 | 320 |
After nine such choice situations, the participant tallies up points – one per choice situation and then compare with the chart above. Outcomes where six or more of the nine choices result in a point difference between self and other that most favors self is considered a “competitive” preference. (pro-self) Outcomes where six or more choices result in the most points or highest point outcome for self, represent an individualist preference. (pro-self) Finally, outcomes where six or more choices result in equal distribution of points represent the cooperative or prosocial preference. Using a tool such as this, students, then, could be introduced to their own social value orientation by self-assessment. Of course, social value orientation varies by person and can vary by situation, so the object here is for students to become conscious of and pay attention to these perspectives. Notice, too, that social value orientation is not meant to address directly moral, religious, or other specific values. Social value orientation is meant to measure self-versus-other orientation as a base line. This base line can then be used to help students to see such orientations at work in the law and world and to begin their own professional identity development.
Social value orientation study is not new; it has been widespread for over forty years, though primarily in other social sciences. Social value orientation has been the subject of extensive empirical research in different settings ranging from public games to negotiations.[xxi] Research has also been conducted on how detection of another’s SVO can influence one’s own cooperation-competition behavior which for lawyers suggests a potential for losing oneself.[xxii] On one extreme, for example, one who is highly competitive – perhaps considered aggressive, when confronted with what was perceived as the lack of another’s cooperation, responded with even greater competition. The SVO categories are not nearly as rigid as they appear, and, like most things in social science, are open to interpretation. For example, zealously advancing a client’s agenda may be viewed as pro-self if the agenda is shared and part of the purpose is to earn the fee or if client stands in for the “self.” On the other hand, such representation may be considered prosocial because it is done for the other – the other being the client. This layer of assessment made be done even before considerating whether the result of representation will be prosocial or pro-self. The study of SVO opens a door using shared language to examining perspective as a precursor to fostering further professional identity education.
At least one author who is a law professor[xxiii], Rebecca Hollander-Blumoff, has recently written in depth on social value orientation and the law from the perspective of connecting social value orientation to doctrine in corporate law, contract law, and family law.[xxiv] One of the several great take-aways from that article is the idea that social value orientation can be used as a discussion tool in substantive law courses to encourage students to consider context in understanding the development of law and to assess their own perspective and choices using a shared framework. Social value orientation awareness and examination can happen in all classes and have the potential to broaden student’s minds to that bigger picture needed to be active members in our profession. Such examination could lead students to be more conscious of their and others’ preferences and perhaps to re-examine choices in that light. This awareness and re-examination are part of professional growth. And, at some point, our integrity may require us all to re-check our social value orientation.
With more law school applicants coming to law school from business and other narrowly-focused specialty degrees and without a broad background in liberal arts or the humanities, we may be the last opportunity for students to be exposed to the kind of self and other examination needed for students to look out, rather than in. Our students then may be in a better position to more consciously develop qualities that prompt them to recognize their and others’ “unconscious [personal] judgment” and then use professional judgment considering broader societal impacts to have that “fair personal and professional character” necessary to fulfill our profession’s purposes.
At any rate, simply considering whether a given decision is pro-self or prosocial is an interesting exercise and worth taking a moment this summer to try[xxv].
[i] Debra Moss Curtis, “’No Shots, No School, No Kidding’: The Legal Profession Needs a Vaccine to Ensure Professionalism,” 28 U. Fla. J.L. & Pub. Pol’y 1, 4 (2017).
[ii] Leviathan (1651)
[iii] I have not lost sight of student debt and its consequences. I also recognize there has been an uptick in law school applications since 2016 and hope that uptick is a sign of interest in participating in our legal system as a social institution more than as a means of making money – especially because until this year, students have had substantial debt at the same time few law firms had given substantial raises.
[iv] A social dilemma is a situation in which the interests of the collective and its individual members clash. In these situations, individuals typically are tempted to take actions that favor (sometimes even maximize) their short-term egocentric interests. However, if all group members adopt such behaviors, the group suffers since all its members are worse off than they could be by endorsing alternative prosocial actions that favor (sometimes even maximize) the collective interest. Study of social value orientation can make these choices and consequences apparent.
[v] Oliver Wendell Homles Jr., “The Path of the Law,” 10 Harv. L. Rev. 457 ___ (1897).
[vi] Id. at ___
[vii] Id. at ____
[viii] Matter of Rouss, 221 N.Y. 81, 84 (1917) (citing Selling v. Radford, 243 U.S. 46, 47 (1917).
[ix] ABA Standards 301a and 302 a-d.
[x] At least two authors have suggested that law schools consider a person’s values (not in the sense of left or right), but in the sense of ability to integrate standards of norms and conduct beyond those merely required by ethics rules. Marjorie Shultz & Sheldon Zedeck, “Predicting Lawyer Effectiveness: Broadening the Basis for Law School Admissions Decisions,” 36 Law & Soc. Inquiry 620 (2011).
[xi] Model Rule of Professional Responsibility 202 – Counselor states: In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” Although, the comment indicates a lawyer is not expected to give such advice unless asked by a client – an expectation that may warrant re-examination.
[xii]Early literature has touched on this combination when referring to cognitive bias and game theory, but social value orientation measures a more complex combination of factors.
[xiii] Just a few other examples include: helping students understand their intrinsic value system through mindfulness. Jan L. Jacobowitz, “Cultivating Professional Identity & Creating Community: A Tale of Two Innovations”, 36 U. Ark. L. Rev. 319 (2014); finding happiness or personal value in being a lawyer, Steven Keeva, Transforming Practices – Finding Joy and Satisfaction in the Legal Life (2002); Lawrence S. Krrieger & Kennon M. Sheldon, “What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success,” 83 Geo. Wash. L. Rev. 554 (2015); and habituating a commitment to purpose and professional development, several articles from the Georgia Symposium on Ethics and Professionalism in 68 Mercer L. Rev. 583 (2017), including Timothy W. Floyd & Kendall L. Kerew, “Making the Path from Law Student to Lawyer: Using Field Placement Courses to Facilitate the Deliberate Exploration of Professional Identity and Purpose,” 68 Mercer L. Rev. 767 (2017) and Neil Hamilton, “Off-the-Shelf Formative Assessments to Help Each Student Develop Toward a Professional Formation/Ethical Professional Identity Learning Outcome of an Internalized Commitment to the Student’s Own Professional Development,” 68 Mercer L. Rev. 687 (2017)(with some great ideas for lessons).
[xiv] Preference for resource allocation and value assigned to potential outcomes of that distribution is the main focus of social value orientation study. Resources are broadly defined and can include economic resources, but also such things as access to legal process, and perhaps the legal process itself. The studies focus on outcomes – not on a strategy for allocation. Although, understanding social value orientation and the growing research on how the interplay between the parties prompts cooperative and competitive behavior in the other may provide a basis for strategy or to alter or adapt preferences. The studies do not, however, focus on whether one’s religion, or custom or personal morality are somehow preferable, nor does it directly measure orientation to those types of values.
[xv] Wing Tung Au and Jessica Y.Y. Kwong, “Measurements and Effects of Social-Value Orientation in Social Dilemas,” 71, Contemporary Research on Social Dilemmas (Suleiman et al eds 2004); Paul A.M. van Lange, “From Generosity to Aggression, Five Interpersonal Orientations Relevant to Social Dilemmas,” 3-9 Contemporary Research on Social Dilemmas (Suleiman et al eds 2004).
[xvi] Paul A.M. van Lange, “From Generosity to Aggression, Five Interpersonal Orientations Relevant to Social Dilemas,” at 9.
[xvii] Aggression – tendency to purposefully minimize outcomes for the other.
[xviii] Au & Kwong, at 71.
[xix] Id.
[xx]See, e.g., Ryan O. Murphy et al “Measuring Social Value Orientation,” 6 Judgment and Decision Making 771-781 (2011).
[xxi] Research in social value orientation considers many permutations and situations – integration of the orientations, consequences when competing orientations intersect, underlying relationships of participants, incorporation of other considerations such as risk preference or risk aversion, trust and trustworthiness, “tit for tat” strategies, effect of uncertainty, relationship between leader and group member, just to name a few. This entry is meant solely to introduce the very basic concept of social value orientation.
[xxii] I’d note that one who is individualistic to the point of aggression is most likely to ramp up competition in the face of anything other than complete cooperation in the other.
[xxiii] Most material written on social value orientation comes from other disciplines and much of that comes from Europe.
[xxiv] Rebecca Hollander-Blumoff, “Social Value Orientation and the Law,” 59 William & Mary Law Review ___ (2017). This is a great, in depth article.
[xxv] Figuring out social value orientation is a little like assessing body language in, say, your classroom for a new set of students – the results are fascinating if not distracting.
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Best Practices for Legal Education 