By Prue Vines
Abstract: We are constantly told to be concerned about our students’ anxiety and depression. This is real, but there is an alarming tendency in our universities to fail to challenge our students because we are concerned about their stress levels. This has to be fought, because our students’ resilience will develop through being challenged, not through being wrapped in cotton wool. How we give feedback, what we teach and how can all contribute to students becoming more independent learners, able to tolerate uncertainty and to get up again when life is hard, as it inevitably is sometimes. It is possible to have high standards and push students without sacrificing wellness. I explore some of these issues.
We are constantly told to be concerned about our students’ anxiety and depression. I myself have been involved in research considering how law students’ anxiety and depression might arise and what a law school should do about it.  I have not changed my mind; but I am rather concerned about the development of ‘wellness’ as a norm in discussion about law schools and the educational responses to concerns about lack of ‘wellness’ amongst students.
It is true that law students seem to have greater anxiety and depression than ever before. This may partly be because of decreasing stigmatisation associated with greater reporting. It may also be because students are experiencing greater anxiety and depression than before. This is my impression in teaching; in particular I notice a higher level of dependence in students than I did in my earlier years as an academic.
Responses to problems with wellness
I argue that it is properly within the scope of a law school to develop their students as resilient lawyers and that the resilient lawyer has certain characteristics, some of which can and should be fostered by the law school without turning itself into a counselling service or a ‘nanny-law school’. This latter point is very important, for two reasons. The first is because an academic whose major focus is on their own career (which probably means research) needs a very good reason to be interested in the mental health of their students, preferably one which will enhance their own lives and research. The second reason is that as academics and teachers within a university setting we have an intellectual role in developing our students, even though not all of them will practise as lawyers. As teachers of law and lawyers we need to consider what it means to conceive of law as a profession. Professions (originally medicine, law and the priesthood) were traditionally those which went beyond the mere making of profit. That ‘going beyond’ sometimes meant stresses that needed a robust mind to deal with them. Professions also had ethics and disciplined themselves. These values of the profession are the link which I argue we can use to mediate what might otherwise seem to be merely ‘feelgood’ strategies, probably beneficial in themselves, but not properly within the province of the law school, so that they contribute to the professional education of the student. 
Responses to problems with wellness include therapeutic responses (counselling etc) but that is not the role of a law school. Our responses need to be educational and so we should consider this partly in the light of the goals of our education. Most Law schools have Graduate Attributes and Teaching and Learning Objectives (TLOs) and most of these include some aspects of professional and personal development. At UNSW Law they certainly do.
I am going to suggest that our goals include the development of independent learners, willing to take responsibility for their own learning, and able to be resilient in the face of difficulties raised for them in their learning law or legal practice. It is worth noting that ethical difficulties appear to be some of the major ‘tipping points’ for students and legal practitioners to give up their study or occupation. So as part of the goal of developing a strong and autonomous personal and professional identity we have incorporated ethical issues in the law curriculum. My argument is that part of the legal education needed includes the development of an ethical ‘grammar’ for each person so that they have a sense of their own values which they can articulate clearly both to themselves and to others. In our first year program we try to do some of this, including doing exercises designed to show the student what her own values are. This, it is hoped, will make it easier to discuss or argue against tasks which the person sees as unethical.
The self esteem and ‘scaffolding’ approach to education – aversion to failure
I have been teaching law for 26 years and I am concerned that our students are less independent in their learning than ever. I think that’s a problem we can deal with quite well. Here at UNSW we work on it quite hard – in the Peer Tutor Program the peer tutors are asked to keep asking students questions rather than giving them answers; we emphasise learning to tolerate uncertainty. In the classroom we have learned to wait what can seem a long time for students to answer a question rather than rushing in to rescue them. In our assessments we try to ask questions that mean they will have to be thinking and coming to their own conclusions while they are doing the assessments; and maintaining exams means they simply cannot get someone else to do it for them.
That’s all well and good – the delicate process of supporting students enough for them to take risks and then gradually taking away the supports so that they can stand on their own is something I think I can do with my students. But there is sometimes an obstacle. That obstacle is requirements of our university learning and teaching programmes which are well-meaning but in my opinion actually reduce students’ independence. One of the problems is that these directions tend to be blunt instruments directed at the whole university because the teaching and learning unit is aware that somebody somewhere is completely ignoring their students or doing things badly. So we get instructions like ‘all students must be given clear and complete directions about the content of assessment’  or expectations must be set out clearly with an example which virtually answers the question. Setting and making clear expectations of students is really important, but giving them so much information that they have virtually been given the answer is counter-productive.
One of the reasons this has been happening is because we are keen on alleviating student anxiety. Here again we have to be careful. Just as a good parent allows a child to bear a consequence in order that in the future they will be more able to manage things themselves, and similarly lets a child fail at something in order to teach them that failure is not the end of the world, a good teacher will allow a certain level of anxiety now because that is the best way to ensure that it is less likely that there will be anxiety in the future.
In our concern to keep students happy and comfortable we have sometimes forgotten that future-proofing requires some effort and sometimes a little bit of anxiety or frustration now. We also seem to have forgotten that not all stress is bad. Indeed it is quite clear that without stress, people become weak:’ Without pressure champagne would have no fizz’ as they say (Duchess of Duke Street). What we can assist with is helping people to learn that stress and failure are not the end of everything, that they must be tolerated and lived through.
So monitoring what we require of our students and reducing scaffolding structures over time is very important. This requires thought and effort to create a happy medium between total support which creates total dependence and the reduction of support over time to develop independence. The Peer tutor Program Objectives are instructive I think:
Students need to develop themselves as independent learners through:
- Tolerance of uncertainty
- Collaboration and care
- Confidence through participation
These aims of the Peer Tutor Program (which has been in place since 1996) remain a good way to think about the development of excellence in education. The need to develop independence is acquired through being in a situation which allows enough of a sense of safety (through collaboration and care between peer tutor and student) for the student to be able to tolerate the uncertainty inherent in law in an academic environment and to develop confidence through participation rather than only observation. This places the onus on the student to learn rather than teacher to teach.
Another issue I am somewhat concerned about is warnings about content. It seems to me that warning a student that content may be confronting is fine, but effectively creating a situation where a students’ sensibilities determine the content of the course they are doing by telling them they should not attend if something is upsetting is not reasonable in the context either of developing professionals who can do the job, nor in developing resilience.
Others may disagree with me about the level of support students need. Students differ from each other and have multiple needs, but ultimately they have to be responsible for their own learning and we do not help them if we pad them out with cotton wool. Meeting challenges is stressful but satisfying and offering challenge is one of the things we should be doing.
Praise and achievement
There is some interesting research on praise – which we might know as feedback – in the educational literature. The last 20 years of the 20th century were dominated by the view that high self esteem would increase success in education and that therefore praise was vital in education. There is now evidence that, while self-esteem is important in itself, it probably doesn’t influence achievement particularly. (there is also some evidence that self-esteem is not developed well by being told ‘ you are special’ etc but much more effectively by looking at what has been actually done and being specific– ‘You chopped the wood. That’s great, now we can have a fire’.
What this literature seems to establish is that there is praise and praise – praise which is focused on the child’s attributes and achievement eg ‘You are so clever you got 75%’, ‘You are so intelligent’ etc may be counterproductive compared with praise which focuses on effort ‘ I can see you put a lot of effort into this’; ‘You have really worked hard and got these answers right’. For example, there is strong evidence to believe that students may either think about their intelligence as a fixed trait or as something they can develop through effort. The first group can become obsessed with how clever they are and avoid tasks they find difficult in favour of tasks they find easy on the basis that the easy tasks help them prove that they are intelligent and effort makes them feel stupid. The second group are much more likely to want to learn and put effort into developing their intelligence. At least one study has shown that cheating was much more likely in students who had been praised for their attributes ‘You are so clever’ (40% of them) compared with effort-praised students (10 %) and that they were also less likely to put in effort in later work compared with those whose effort was praised. This is probably something useful for us to note, as our aim is to develop continuing effort.
This is one reason why in my class participation assessment I focus on engagement and effort rather than mastery of the material. This seems to me to be more likely to result in continuing effort. This research suggests that in our feedback to students we should be focusing on their effort and the process they have gone through in order to produce what they have.
Self knowledge, personal and professional identity and autonomy
Our study of law students compared with other students at university showed that they were far less likely to be doing law because they themselves chose to compared with students from other faculties. We also found a number of other factors which suggested that law students disproportionately lacked a sense of autonomy compared with other students. A sense of helplessness is one of the most common signifiers of depression and autonomy is therefore a significant issue for law students. (Social connectedness is another significant issue for depression but here I focus on autonomy).
We try in first year to begin to address some of these issues by working on the development of self knowledge, and personal and professional identity. In relation to professional identity we begin, as I said, to consider the development of a personal ethical grammar. We also try to develop a sense of internal rather than external motivation. In relation to this marks are a really big issue. Law students were far more likely than other students to think that marks were the only thing employers were interested in, and they were also very likely to identify themselves with their mark. How often have you heard a student say to you, ’But I’m a distinction student!’? Moving from identifying oneself with a mark which has been given to you by some external purpose to thinking of a mark as something which might help one to develop one’s internal understanding of what one is learning, or seeing the mark as just one piece of evidence about the work rather than everything about it are things that we try to develop in our students. The internally motivated law student is far more likely to continue to learn, and to be able to evaluate for themselves how much they have achieved or not achieved than the student who is motivated purely by external matters. Indeed the move from external to internal motivation is probably assisted by praise focused on effort rather than on attributes.
Things one should know about oneself in order to assist in development of learning and excellence:
How I learn
What my values are
What gives me personal and professional satisfaction
That a failure of some kind often is a great learning experience and is not the end of the world.
This is most likely to develop the kind of autonomy that is robust and resilient.
What I have tried to talk about here is what are reasonable strategies for us as legal academics and teachers to use in developing and maintaining our students’ resilience. It is not our job to be counsellors but it is certainly our job to foster our students’ minds where we can and to challenge them in order to continue their development. We will have to exercise judgment about when a student is in the kind of trouble that needs a mental health professional, and we should certainly encourage students to ask for help from a mental health professional or a friend when they are feeling distressed or having trouble. But we should not dumb down our curriculum nor take bits out of it just in order to save students from stress which may very well be important for ‘tempering’ their steel for the future. Of course, it is a matter of judgment where this line is drawn, and the line may be drawn differently for some students, but our job, I would suggest, is to be focused on developing academic excellence in our students while they are in this environment where we can allow them to begin to grapple with the issues and problems that inevitably will face them later.
 M Tani and P Vines ‘Law Students Attitudes to Education: a pointer to depression in the legal academy and the profession?’ (2009) 19(1) Legal Education Review 3-39; Prue Vines and Patricia Morgan, ‘Contemplative Practice in the Law School: Breaking Barriers to Learning and Resilience’ in R.Field, J. Duffy and C. James Legal Education and Lawyer Well-being: Evidence from Australia and Beyond, (Ashgate, 2016.)
 Council of Australian Law Deans Guidelines on Promoting Law Student Well-being 2013; Tristan Jepson Foundation’s Best Practice Guidelines
 Although US literature has accepted this for thirty years, in Australia we have only had good data on this subject since the Brain and Mind Institute Study was done in 2008: Norm Kelk et al Courting the Blues: Attitudes towards Depression in Australian Law Students and Lawyers, Brain and Mind Institute, 2009.
 Some of this material comes from Prue Vines ‘Working towards the Resilient Lawyer: Early Law School Strategies’ in Leon Wolff and Maria Nicolae The First Year Law Experience: a New Beginning, (Halstead Press, 2014).
 See ALTC /CALD Report on Learning and Teaching in the Discipline of Law, 2009.
 LS Krieger, ‘The Inseparability of Professionalism and Personal Satisfaction:Perspectives on Value, Integrity and Happiness’ (2005) 11 Clinical Law Review 425; Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014).
 UNSW Law School Curriculum Review Working Party: Curriculum Review: Designing an International, Experiential, Research-focused Curriculum for a C21 Law School, (UNSW Law, 2013) pp 46, 82-85.
 Anthony T Kronman, The Lost Lawyer: failing the ideals of the legal profession (Harvard University Press, 1995).
‘ Make expectations, goals, learning outcomes and course requirements clear. If students are to take responsibility for their own learning, they need to know what is expected of them. Also articulate your expectations about assessment tasks and their criteria at this time.’ UNSW Guidelines on Learning p 50.
 Dominic Fitzsimmons, Simon Kozlina and Prue Vines, ‘Optimising the First Year Experience in Law: the Law Peer tutor Program at the University of New south Wales (2006) 16(1 &2) Legal Education Review 99.
 Carol S Dweck ‘Caution-Praise can be Dangerous’ (1999) Spring American Educator 1-5; M Stout, The Feel-good Curriculum: the dumbing down of America’s Kids in the name of Self Esteem (2007); Carol M Dweck ‘The Perils and Promises of Praise (2007) 65 (2) Educational Leadership 34-39
 N Humphrey ‘The Death of the Feel Good Factor’ (2004) 25(3) School Psychology International 347-360
 M Stout, The Feel-good Curriculum: the dumbing down of America’s Kids in the name of Self Esteem (2007
 Carol M Dweck ‘The Perils and Promises of Praise (2007) 65 (2) Educational Leadership 34-39, 36.
 M Tani and P Vines ‘Law Students Attitudes to Education: a pointer to depression in the legal academy and the profession?’ (2009) 19(1) Legal Education Review 3-39