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Presidents' Messages

Transformation and Training in the Law:
Serving Clinical Legal Education's Two Masters

By Rachel F. Moran

My AALS Presidential Address, reported in the previous newsletter, noted that my theme for next year’s convention will be “Transformative Law.” In this and my two remaining newsletter columns, I will explore three domains of transformative law: experiential learning, scholarship, and classroom teaching. This column will address the first area and will focus on what is most likely considered the greatest transformative advance in legal education over the past several decades: the rise of clinical legal education programs.  Although these programs can cover a range of training techniques, including simulations, here I primarily discuss the live-client clinics.

Introduction

This is a fitting time to consider the future of clinical legal education.  This year marks the twenty-fifth anniversary of Anthony Amsterdam's germinal article, which speculated about how developments in the field might be viewed from the vantage point of the twenty-first century.1 The past decade has seen comprehensive retrospectives on the development of clinical education and an extensive guide from the Clinical Legal Education Association as to how the field should develop.2  As part of a study of the professions, the Carnegie Foundation issued a thoughtful and broad exploration of how to educate lawyers, which has implications for all of legal education including clinical legal education.  The report already has engendered considerable discussion in the law school world.3

These sources leave little doubt about the promising possibilities of clinical legal education.  My concern here, however, is to ask whether clinical legal education could become a victim of its own success. I will address several challenges facing the field, ones that implicate first principles:  What is clinical legal education supposed to accomplish, and what aspects of it are truly fundamental?  As I will show, these challenges have their root in the historical origins of today’s clinics and their dual mission to advance innovative pedagogy and to promote social justice.

The Root of the Challenges: 
Clinical Legal Education Serves Two Masters

The clinical movement began to make substantial in-roads into legal education in the 1970s, thanks in substantial part to the Ford Foundation. The movement was forged at a time of legal activism, when the courts were seen as a forum ripe for pursuing social change. The clinical movement, which served clients in need, bore a strong resemblance to the legal aid clinics that had taken root in low-income, disadvantaged communities around the nation. These clinics not only undertook the sort of cases traditionally associated with poverty law, for example, landlord-tenant disputes, but also test-case litigation that attacked the structural causes of inequality.4

From the outset, this was controversial work. Some of that controversy was external to the movement: The political nature of the litigation challenged the status quo by demanding that law operate to solve problems rather than to entrench them.5 Some of the controversy was internal, as critics attacked lawyers for treating clients as instruments of change rather than as people who set their own agenda in the litigation process.6

The primary challenge for the clinical legal education movement was to expand programs from a few law schools to nearly all of them. Universal acceptance was achieved by making pedagogical claims, in particular that the programs would improve students’ preparation for legal practice. These claims emphasized the need for a broader training in lawyering skills and the benefits of experiential learning in engaging students’ interest and acquainting them with the attorney’s role and obligations.7

Today, this battle for universal clinical offerings has largely been won. The American Bar Association now requires that law schools offer substantial clinical opportunities as a condition for accreditation; clinics are widely available and sometimes mandatory.  Even so, problems of unmet student demand do persist in some schools. Challenges related to the full integration of clinical education into the broader law school curriculum remain.  Clinical professors worry that their efforts remain marginalized curricular afterthoughts and that their status is that of academic “second-class citizens.” Clinical educators hope that integration will secure these programs’ future and put them on a par with traditional, in-class instruction.8

A separate problem has received less notice, however: in promising both pedagogical improvement and the pursuit of social justice, the clinical legal education movement serves two masters. As the movement grows in size and centrality, this problem intensifies. Clinical programs, when more fully assimilated into the law school curriculum, will likely be defined more by their pedagogical contributions than their social justice traditions. Service to low-income clients could become incidental rather than central to the clinics’ mission. Clients would be chosen simply because they are the only ones who will accept counsel from second- or third-year law students rather than an experienced, fully credentialed attorney, much as free low-cost dental clinics help dentistry students learn while serving the poor. Helping the needy would remain a fortunate benefit of clinical programs, but a side benefit rather than the metric upon which their success is judged.

With that background, I note three emerging challenges for clinical legal educators.

First, recent reports on the state of legal education have focused on clinics largely as vehicles for skills training and experiential learning, rather than as sites for social justice lawyering. This trend threatens to subordinate the role of serving the needy as a hallmark of clinical legal education. A new emphasis on outcome-based assessments will only exacerbate this tendency, as clinics are forced to justify their existence by demonstrating direct and immediate gains in student learning.

Second, shifting to a pedagogical focus could result in clinics being less responsive to both diversity and transformation in the legal profession itself. Indeed, assimilation to the standard curriculum could lead clinics to take on the same static qualities that led to the movement’s original attacks on narrowly focused and intractable Socratic in-class instruction.

Third and finally, pressures to globalize legal education, including clinics, could further complicate the balance between a student-focused account of clinics that centers on learning and a client-focused account that emphasizes social justice.

 

Challenge # 1: Focusing on Skills Training May Undermine the Social Justice Origins of Clinics

Recent reports on legal education have focused on clinics almost exclusively with regard to how they better promote skills training and experiential learning. This emphasis on pedagogical benefits, while offered as a value-neutral approach to evaluation, effectively subordinates and marginalizes the social justice mission of clinics.

Best Practices for Legal Education, in a section explicitly echoed by the Carnegie Report, spends four-and-a-half pages noting the superiority of in-house clinical courses in achieving certain educational goals. Half a page of this section asserts that arranging student interactions with segments of society with inadequate access to legal services promotes compassion and concern about injustice, a transformation that is neither automatic nor inevitable.9 The report allows in a footnote that some “small percentage of the student body” may appreciate clinics for reasons “unrelated to their educational effectiveness or efficiency, [including] … a way to demonstrate their role in providing services to their communities … [and] to provide a place for nurturing their students who are committed to social justice issues.”10  This turns the traditional rationale for clinics on its head: “social justice” is not a core commitment but an option made available to those few students with such interests.

Clinics have faced challenges both in opinion columns by conservative critics11 and in court by aggrieved defendants. In response, clinics often are defended in purely pedagogical terms. A recent amicus brief filed by the Clinical Legal Education Association in litigation by a disgruntled developer against the Environmental Law Clinic at Rutgers School of Law-Newark focused almost entirely on the pedagogical and skills-development aspects, along with a short statement about advantages in acquainting students with “ethical dilemmas.”12

That is all well and good – but if we avoid defending clinics for the benefit their activism provides society, people will soon figure out that clinics can provide all of the purported pedagogical advantages with none of the grief if educators simply steer clear of controversial matters.  Legal academia, and academia more broadly, face similar political pressures – when it comes to clinical education, however, buckling under to pressure to be risk-averse has a serious practical effect in the marble halls beyond the ivory towers: important lawsuits do not get filed, and the most vulnerable and needy go without representation.

Justifying clinics based primarily on pedagogical advantages is self-perpetuating because it invites objective outcome-based assessments. We see this in the increasing pressure to include such measures in the law school accreditation process. Clinical legal education is, frankly, not yet well prepared for such evaluation.  Like many academic programs, much of its self-evaluation relies on first-person testimonials from a given school's program participants, who are obviously interested parties. Such accounts seem unlikely to satisfy rigorous advocates of outcome-based measures of success. What few studies have been published suggest that the benefits of clinics are mixed at best. This is hardly surprising and far from damning, given that this is the typical trend in social science and educational research more generally.13

If and when outcome-based measures do come, though, it will likely prove easier to measure the pedagogical benefits of clinical legal education than its social justice impact. One can more readily imagine counting students served and assessing acquisition of Amsterdam’s nine non-Socratic cognitive skills than quantifying the extent to which social justice has been served and measuring how effectively ethical orientations have been inculcated. The latter sorts of measures may be possible, but development of such assessments is not the path of least resistance. They will not appear without attentive effort – effort that we have not yet as a field decided to devote.

 

Challenge #2:  The Creation of Clinical Traditions May Slow the Accommodation of Diversity and Change in the Profession

In 1992, Judge Harry Edwards famously criticized the legal academy for its distance from the world of working lawyers.14 He called for greater skills training and better professional socialization. The questions he raised then reverberate for clinical legal educators today: what skills and what socialization do students need?

The answer is, if anything, less straightforward now than in 1992. The legal profession currently faces increasing specialization and segmentation; some even doubt that the traditional law firm will continue to exist in its currently recognizable form. Lawyers in large firms may have relatively little face-to-face contact with clients. Public interest lawyers struggle with limited resources. Lawyers of all stripes will face substantial pressures to economize by arriving at adequate rather than ideal legal answers. The work of attorneys at the margins of the profession may more resemble that of paralegals – if the outsourcing of such work doesn’t eliminate its availability for job applicants altogether.15

The increasing diversity of legal careers and the skills they require demands that we reconsider what “skills training” means and consider what skills need be taught. Recall that the criticism of the Socratic Method from scholars such as Amsterdam was that it inculcated too narrow a set of skills and failed on its own terms to impart the flexible reasoning skills that it claimed to prize. In a diverse field, clinical educators may fall into a similar trap –- assuming that cognitive skills such as “hypothesis formulation and testing” and “ends-means thinking”16 are honed so well in any given clinical environment that they will transfer to any future setting.

The Socratic method professes to teach students not positive law itself – because positive law inevitably changes – but how to derive positive law in future moments by employing skills like case analysis and, later, statutory analysis. Cognitive scientists and educational theorists refer to this concept as “learning how to learn.” Will clinical training – itself much more diverse than the Socratic Method – teach students to “learn how to learn” in both novel and changing environments?

There is basis for doubt. Clinics tend to privilege a face-to-face version of lawyering with an individual client in which the lawyer has substantial resources to investigate and pursue the case. This model may embody a normative ideal or a romanticized image of law practice – one that will become less common as the conditions of the profession shift. It is readily imaginable that clinical practices may not move in synch with such changes, just as practitioners of the Socratic Method failed to do. In fact, to the extent that clinics seek small-scale problems that can benefit students, the programs may largely ignore the restructuring that is going on in the profession. If clinics largely serve low-income clients with small day-to-day problems, a simple model of “A sues B” will predominate, supplanting one that attacks complex issues and uses law as a tool for structural change.

This challenge also interacts with the shift to pedagogical justifications. Curricula purporting to prepare students for professional work will likely appeal to many students who want a competitive edge in the job market. But this comes at some opportunity cost: this approach may displace the social justice orientation for clinics, especially as the job market worsens.

The answer to the question “what skills?” turns out to be politically fraught. Professional skills training and learning professionalism are useful skills, but ones largely aimed at the individual. Anita Bernstein has proposed teaching students about the “pitfalls” of the profession: what constitutes breach of fiduciary duty or malpractice, how to interact with judges and clients, and so on.17  This is an excellent idea – but not all pitfalls are individual. Lawyers also confront pitfalls for the profession and for society at large.18

For example, moving away from a social justice orientation may benefit the individual job-seeking lawyer, but at the expense of the larger society. My previous column focused on the need to resuscitate the model of the “citizen-lawyer” who sometimes puts private practice aside to work, possibly at substantial personal expense, primarily with governmental and other social problem-solving agencies. The citizen-lawyer evades the pitfall of lost independence, which Robert Gordon defined as deriving from capture by parochial client interests in one’s practice.

Imagine a clinical program that recognized society’s need for lawyers with social justice perspectives as well as the importance of preparing students for their role as citizen-lawyers. Such a program would not only better honor the philosophy of imparting “skills” and “professionalism” that both law and lawyers need, but it would continue to serve the dual purposes of clinical education. The training might leave lawyers a little less prepared than Judge Edwards might have preferred for their first job out of school, but also better prepared for the full course of their career – and in a healthier profession.

 

Challenge # 3: The Globalization of Clinical Legal Education May Complicate the Relationship between Pedagogy and Social Justice

Clinical legal education is attracting increasing global interest. Once again, foundation grants, coupled with international aid – notably from the Ford Foundation in China – are playing a critical role in the spread of these programs. Peggy Maisel recently reviewed various clinical initiatives with instructively varying results.19 Clinical efforts in Kenya are lauded for successfully avoiding what locals see as cultural imperialism; efforts in Iraq are noted for failing in that respect. Russian law students eschew any clinical focus on social justice, seeking to attain practical skills to help them in career placement. China accepts a social justice mission of providing low-paid or unpaid assistance for individual needy clients, but rejects anything like impact litigation or work for broader collective social reforms. The track record of these programs is mixed and their future uncertain.

Clinical legal education within China has recently been the focus of fascinating reviews from both an insider's20 and an outsider's21 perspective.  Again, rather than reviewing such efforts, I want to raise a point in reference to China about transcending American assumptions about foreign legal systems that generally receives short shrift in these discussions.  Philip Genty recently has raised what should be a fundamental concern in exporting American approaches: that much of the world uses a civil law rather than a common law system.22 He argues that clinical legal education is less well adapted to a civilian system, which depends more than ours on doctrinal analysis rather than case law. Genty notes that a civilian system lacks some features that common law lawyers, at least in the U.S., take for granted. For example, one reason that we do not see class actions brought in China is that the civilian legal system does not provide for them; “cause lawyering” generally is not part of the civilian legal culture. This is not a matter of China being a “developing nation”; it is a matter of its being part of a venerable tradition of civil law. Social justice lawyering will have to adapt to a new system there – as it will in Eastern Europe, Mexico, and elsewhere.

Clinics may bolster the social justice orientation of foreign legal education programs, but this is far from assured. As foreign support declines, clinics may disappear or adopt new forms that do not threaten the political status quo. This challenge implicates the tensions between skills training and social justice.  If the social justice rationale for global clinical legal education faces resistance – from governments or legal cultures or students who seek better career placement – then pressure grows to define foreign clinics in terms of pedagogical benefits and focus on easily portable skills for the transnational lawyer. The social justice origins of the clinical education movement, which are if anything more critical in developing countries, might face even greater risks of subordination to student-centered learning concerns abroad than in the United States.

Conclusion

The struggle to preserve the social justice origins of legal clinics will be the defining challenge of the twenty-first century for clinical legal education. Faced with pressures to assimilate to the general curriculum, standardize programs, measure learning outcomes, cater to students’ short-term career interests, and palliate government resistance both domestic and foreign, clinicians increasingly will be forced to justify their existence in student-centered terms that can obscure the mission of serving needy clients and communities. The clinical movement must determine how central social justice lawyering is to its identity here and abroad; ideally it will act to maintain this core commitment. Otherwise, this facet of clinical education will become at most incidental and at worst irrelevant to defining programs’ success, and an important legacy will be lost.