A Pedagogic Paradigm Shift in Clinical Legal Education: Towards Placing Practical and Theoretical Knowledge on an Equal Footing?

In recent years the role of clinical experiential learning has become increasingly relevant within law schools as questions arise regarding the most appropriate method of delivering legal education and training lawyers. Should it focus on classroom-driven theoretical knowledge? Should it focus on apprentice-style internships in the field? Or, is preparing lawyers for practice best achieved through a combination of both classroom theory and clinical work experience? Despite varying views on these positions, one thing seems certain, legal education is in transition. Federations, law firms, and students alike are calling for more training in core competencies that go beyond theoretical knowledge, highlighting the importance of skills development through clinical experiential learning opportunities as part of the academic studies. Indeed, many law schools have been working to lead the way providing a wide range of clinical opportunities for students. The purpose of this article is to examine the changing focus of legal education over the years from its development as an academic discipline to the emergence of clinical internships and the call for law schools to deliver a mixture of both within the contemporary law degree.

I. Legal Education as an Academic Discipline

Legal education as an academic discipline first evolved in the 1870s when Harvard’s Charles Eliot and Christopher Columbus Langdell developed the modern law school. This model of education moved away from the subjective and practical knowledge of a trade school style education, to a hybrid model of a modern research university placing minimal emphasis on clinical/experiential learning opportunities.[1] Before that, many law colleges were focused on shaping the “self”, whereas, the new university curriculum “emphasized testing and criticizing beliefs in order to build up a body of well established ‘facts’ that are supported by a true understanding of the principles according to which things work”.[2] The move from an apprentice-style model to that of the modern scientific approach came as a result of a shift in epistemology, whereby thinkers and scholars went from valuing practical knowledge to prizing analytic and empirical knowledge. This shift is indicative of a development in philosophy called empiricism and then logical positivism in the 1930’s, which includes the belief that only analytic and observational statements are meaningful.[3] The new movement had its drawbacks, as Sullivan et al, points out in the 2007 Carnegie Foundation for the Advancement of Education Report, Educating Lawyers: Preparation for the Profession of Law stating: “The new and reinvented disciplines of the sciences and social sciences produced great cognitive gains. The ideology that so often went with them, however, narrowed their focus and undermined the academic legitimacy of practical knowledge.”[4]

In that regard, the pendulum seems to have swung too far with the adoption of positivism to the exclusion of subjective, experiential, and practical knowledge within legal education. This shift in epistemology could help us understand the moral crisis that Philip Slayton chronicles in Lawyers Gone Bad: Money, Sex, and Madness in Canada’s Legal Profession (2007). Awareness of this, as well as competency problems have resulted in law schools reassessing their respective positions, effectively coming full circle, and recognizing that the practice of law is not a purely theoretical science, blindly applying principles and maxims to “cold hard facts” abstracted from everyday human experience to get the desired results. As stated in Educating Lawyers: “For professionals, the decisive dimension is responsibility for clients and for the values the public has entrusted to the profession. The pivot of practice makes it possible to accept this responsibility, not as adjunct to legal knowledge but as one of its crucial constitutive parts.”[5]

Using the scientific approach whilst excluding practical knowledge in law schools, as Nadia Chiesa points out, does not prepare students for practice: “In his 1935 indictment of legal education, Karl Llewellyn denounces the law schools of his time as factories pulling in immature, unprepared young men and, three years later, churning out young lawyers who are not significantly better prepared to deal with the realities of the legal profession.’ […] In short, these graduates may have studied law, but they are not ready to practice law.”[6]

Effectively, law schools began with the apprenticeship model and moved to the scientific approach “whereby research is at the center of the faculty and practice-based courses are viewed as add-on electives, at best, or absent in many cases. Clinical experiences are valued but removed from the overall direction within a research-focused environment. This development is in part due to the fact that law schools are faculties within universities and universities tend to be research-focused in order to foster their reputation and to gain international recognition.”[7] In the process, they lost some crucial elements of legal education that cannot be taught in the class room; the role that personal and public values, moral reasoning, and self-reflection play in the application of law, interpersonal skills, and responsibility. The scientific legal model does not prepare students for the uncertainties and unpredictable flux of the often messy and gritty social context behind every set of “facts”. “I do not see that it has to be one or the other. A well-rounded legal education can have both.”[8]

II. The Emergence of Clinical Education.

So where does this leave us today regarding clinical education? Taking into account the criticisms discussed above, one may conclude that modern legal education must be “fit for purpose” preparing students for the practice of law.[9] It should include a balance of subject knowledge, legal expertise, and skills-based experiential learning. Learning opportunities should include a balance of doctrinal, black letter law courses, and opportunities to apply knowledge in practical ways, one of which is internships and clinical practice.[10]

As I have argued elsewhere, “Academic lawyers are concerned with research regarding how law underpins our social world in order to shape and guide society through the enforcement of rules and regulations. For practicing lawyers, legal research is a process of application. Lawyers must learn to identify, understand, and apply legal principles within real-life cases. Both approaches are meaningful in different ways, and both are relevant. However, law students and lawyers must be concerned with applying the law within a practical sphere. Indeed, I would argue that we have a positive duty to prepare lawyers in this manner. Additionally, research can be balanced with clinical learning in that academic lawyers may actually engage in applied research whereby their research is grounded in the day-to-day application of law at the grass-roots level”.[11]

From as early as 1935 to today, much debate has ensued over the need for clinical legal education. Indeed in 2012, Robson Hall Faculty of Law, Manitoba hosted the third annual Association for Canadian Clinical Legal Education Conference, which was previously hosted by Osgoode Hall and Western Law before that. This conference has produced a host of scholarship about the state of clinical legal education across the globe. Why do law schools need clinical education? Chemerinsky explains why:

Clinics can take countless forms and deal with almost any area of law, but the key is that they are providing students the opportunity to practice as lawyers with close supervision. The analogy to training doctors is powerful. It is frightening to imagine medical schools training doctors who had never seen patients before their graduation. Yet, although most law schools have clinics, only a minority of students participates. …. Students rarely meet clients and usually do research projects on small aspects of large cases. They get a sense of life in the firm, but minimal actual training as lawyers.[12]

Most law schools in Canada have worked to create more opportunities to teach practical lawyering skills. Law schools provide students with clinical and experiential learning in order to ensure that students are seeing “law in action”. Indeed, changing legal education –competencies required from Law Societies, the articling process changing in Ontario, and the access to justice crisis, as well as internal pressures coming from students interested in experiential opportunities and faculty-based self-critiques of traditional pedagogies within legal education have led to may changes within legal education.[13] That said, there are increasing calls for a further pedagogical paradigm shift.[14]

III. The Best Model?

In defining what clinical education should look like there are several current approaches: Intra-Curricular, Extra-Curricular, Specialty Clinics, Experiential Courses, and Poverty Law Clinical Programs. There is also debate regarding the purposes of legal clinical education. Some argue that its utility is a means of teaching hands on practical lawyering skills to prepare for practice after school. Others see it as an opportunity for students to take on professional identities; deal with real law and ethical issues though working on real life cases. Still others see it as a means to politicize students to teach about social justice.[15]

So which model is best and what is the purpose of clinical education for the modern Canadian law school? The answer to this question depends on many factors; financial resources, connections with the local legal community, particular access to justice needs in a particular region or province, and the number of willing practitioners to assist with these needs. These questions aside, one thing is clear, law schools are increasingly adjusting their approach to meet the needs of the profession, which includes increasing clinical opportunities and making them a more central component of the core curriculum, particularly in the upper years.

It should also be emphasized that offering clinical education does not preclude teaching research, theory or doctrine, but rather it strengthens it in a complimentary manner, broadening the elements of a law student’s knowledge and experience, serving to enhance their overall education. As stated in Educating Lawyers,

It would be a mistake, therefore, to take teaching centered on practice as hostile to generalization or theoretical formulation. Rather, careful analysis of intelligent practice reveals a more intricate relationship between theory and practice than in the positivist model – an understanding that is still poorly appreciated in the academy as a whole. (…) Learning situations such as the clinical case conference reveal the features of the environment in simplified forms so they can be understood by novice practitioners, who can begin to develop their own perception and judgment. In these situations, students often depend on conceptual knowledge to clarify conditions of practice while they gradually build up their repertoires of experience. For example novices can too learn rudiments of litigation, or client counseling, or negotiation by attending to the core element of the procedural and conceptual models exemplified in expert practice. The articulation and formulation of such core elements exemplifies the essential contribution of theoretical work to the domain of practice.[16]

IV. Conclusion: Placing Practical and Theoretical Knowledge on an Equal Footing.

Recent scrutiny of legal education has resulted in various attempts on the part of law schools to introduce law clinics, internships, and a variety of experiential learning opportunities for JD students. Faculties of law are increasingly accepting the challenge of providing a more stimulating and engaging legal curriculum wherein clinical learning plays an integral role and indeed many have come a far way in providing such opportunities. In order for it to be relevant within today’s context, such programs must be properly delivered and indeed tested appropriately to ensure that it prepares students for professional legal practice. “The curriculum should address not only doctrinal and procedural law, but also encourage critical thinking and engagement with larger legal, societal and ethical issues. Law schools need to commit to excellence in teaching that is practice-based and research-informed and to ensure students have access to opportunities with working professionals including both those in practice and the judiciary.” [17]

Subject knowledge, legal expertise, and skills-based experiential learning should be balanced. This calls for a comprehensive reform and renewal of the curriculum (course content), delivery (pedagogy), and methods of assessment (evaluation) whereby experiential learning experiences are not simply extra-curricular activities but a core component of the overall law school experience.[18] In other words, there needs to be a further paradigm shift towards more clinically-based legal training opportunities for students, placing practical knowledge on more of an equal footing with theoretical knowledge.

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[1] Sullivan et al, Educating Lawyers: Preparation for the Profession of Law (San Fransisco, CA: Jossey Bass, 2007) [Educating Lawyers] at 4.

[2] Ibid at 5.

[3] Ibid: “In the form of philosophical positivism, the new viewpoint became a militant movement intent on remaking modern education and culture, one that claimed to have superseded all previous forms of knowledge and insight.”

[4] Ibid at 5, 7.

[5] Educating Lawyers, supra note 2 at 11-12.

[6] Nadia Chiesa,“The Five Lessons I Learned Through Clinical Education” (2009) 10 German L.J. 1113 at 1113.

[7] Jonathan Black-Branch, “Modern Legal Education: Towards Practice-Ready Attitudes, Attributes and Professionalism”, MLJ (forthcoming) [Black-Branch] at 2.

[8] Ibid at 2.

[9] Black-Branch supra note 8 at 1.

[10] Ibid at 1-2.

[11] Ibid at 2-3.

[12] Erwin Chemerinsky, “Why Not Clinical Education?” (2009) 16 Clinical L. Rev. 35 at 36-37.

[13] Sarah Buhler, “Introduction: The Association for Canadian Clinical Legal Education (ACCLE) Conference 2012” (2013-2014) 37 Man. L.J. 357 [Buhler] at 357-359.

[14] Douglas D. Ferguson provides an overview of the current state of experiential education in Canadian law schools. “The State of Experiential Education in Canadian Law Schools” (2013-2014) 37 Man. L.J. 465 at 466-467: He explains four main types of experiential education and seven types of clinics: 1. Clinics 2. Pro Bono Students Canada (PBSC): strictly volunteer with no course credits, no representation, legal education. Supervised by Faculty member, law faculty staff person, or member of the private bar. 3. Placements or Externships are big in the US not as Common in Canada. 4. Simulations in Class: there is no research on the use of simulations in class.[14] He also mentions various types of Clinics: Representational: The environment similar to a law firm. “They handle all aspects of a case from beginning to end. They docket their time, they appear in court. They draft documents.” Intensive Clinics: “A small number of students spend an entire semester working in the clinic, handling dozens of files. […] They receive credits equal to 4-5 courses”, i.e. Parkdale Community Legal Services at Osgoode Hall. Course Driven Clinics: a large number of students take one clinic course along with other courses, handling 5-10 files and are given credits for one course. Volunteer Clinics: no course credits are offered. Informational Clinics: Dispense Legal information i.e.: McGill’s legal information clinic. Advocacy Clinics: advocate for a cause or raise issues of public policy, i.e.: Victoria’s Environmental Law Clinic, Ottawa’s Public Interest Clinic. Placement Clinics: Students placed in government or an NGO to work on legal issues, i.e.: Osgoode’s Intensive Program in Aboriginal Land, Resources and Governments. He explains: “This not only gives them an advantage in getting an articling job, but it gives them a leg up when they start articling, as other non-clinical students will not necessarily know how to manage a file. There is an altruistic side as well. By working with low income clients, some develop an interest in working in the legal aid system, and have an appreciation of the importance of pro bono work.”

[15] Buhler supra note 14 at 357-359.

[16] Educating Lawyers supra note 2 at 10-11.

[17] Black-Branch supra note 8 at 5.

[18] Black-Branch supra note 8 at 5.