Clinics, Skills, Employment and the Education of ‘Young Ministers of Justice’

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With the recent analysis from Jason Yackee about how from a statistical standpoint law school clinics do not appear to offer a positive employment “bump” to graduating law students, the competing sides in legal academia comprised of those who advocate expanding clinics and skills courses as integral “experiential” parts of a quality legal education and those who oppose the expansion of skills courses for reasons of intellectual quality and opposition to what they consider excessive “vocationalism” or excessive cost have staked out their positions.[1]

The problem with all this is that the analysis on which people are leaping to challenge the role of clinical education was done on extremely limited and mismatched data. If someone had raised with me prior to the Yackee analysis becoming available that private sector law firms did not consider most forms of clinical experience to be something they looked to in making hiring decisions I am afraid I would have responded with some variation of Homer Simpson’s “Doh!” With what we have available it is impossible to make a clear decision about the utility of clinical programs or a “skills” curriculum because the programs are so wide ranging and idiosyncratic, the law schools differ in employers’ perspective on their quality, and the employers’ represent a diverse range of needs and interests.

The reason I raise these points is that I am thinking about the recent movement toward “experiential” learning in legal education. I am entirely in favor of the application of experience as part of the education of law students. I have always been a strong believer in the idea that application and action through which we seek to implement knowledge obtained through reading, listening and discussing are critical elements of a law student’s development. Whether we harken to John Bunyan’s question in The Pilgrim’s Progress where on the day of judgment we are required to answer to God whether regardless of our belief were we “doers or talkers only” or accept Hannah Arendt’s idea that we only become real through our actions application and action are the dynamic mechanisms that allow us to test the quality of what we know, how we demonstrate our real selves and from which we learn our deepest lessons.

I have spent decades teaching law students (and lawyers) in virtually every “live” and simulated experiential context possible. This includes running a significant civil and criminal law “in-house” clinic that stretched over two terms with one of them a full immersion experience that included twelve clinical credits plus a three-hour classroom component in professional skills and ethics.[2] Along with this we operated a clinical program with students working in the local Cleveland Legal Aid office. The teaching experience also includes an Environmental Law clinic that operated as a backup center for local government and for citizen groups and several law firms involved in environmental litigation. It included piggybacking on Vermont Law School’s Semester-in-Washington, D.C. program where CSU students were placed with Mike Oxley’s Congressional subcommittee working on Superfund issues, with the Environmental Division of the Department of Justice and with the Natural Resources Defense Council. The other approaches with which I have had extensive involvement include internships, externships, Trial Advocacy, Dispute Resolution, Interviewing, Counseling, Negotiation and a special course I invented called Lawyer’s Strategies.

The reason I mention these teaching experiences is to suggest that I am not exactly a neophyte in the areas of legal clinics and skills teaching involving a variety of modalities. In fact I have spent my entire teaching career engaged in such approaches and have even incorporated “experiential” and application methodologies in my courses in Jurisprudence, Legal Profession, Criminal Law, Environmental Law, Toxic Torts, Human Rights, etc. There is no question in my mind that creating learning situations in which students are required to apply theoretical knowledge to problem-solving contexts works to expand, intensify, deepen and make concrete the theoretical “book” learning.[3] Otherwise, as Bunyan notes above, it is basically all just “words”.

Some of the rhetoric of the “experiential” education movement begins with the opinion that legal education is a dismal failure in the realm of teaching law students an adequate range of the skills that are the foundation of a successful and competent legal professional. This criticism is far too “broad brush” in sweep. The fact is that legal education already teaches a core of vital analytical skills, although it defaults on what can be thought of as the skills of synthesis (putting together) rather than analysis (taking apart). Legal education also offers other skills such as research along with a decent range of technical skills in discrete areas of law practice including litigation, transactional actions, interpersonal skills of communication, interviewing, counseling, dispute resolution and negotiation.

The fact that most of us learn best when we are forced to apply theoretical knowledge to challenging concrete situations does not mean that there aren’t critical issues of design and implementation involved in our efforts to do so. It is far easier to lecture and “profess” as a “Socratic wizard” in control of a large class of First Year students who have no idea of what is going on than it is to engage students involved with the dynamic and shifting realities of law practice. Given its complex challenges and the fluidity of the unfolding events and interactions, not all experience is a positive learning process and not all programs that purport to create positive learning through the combination of theory and application are effective. In fact it is a significant challenge to create effective experiential programs and a mistake to think that simply because we designate a program as experiential that the outcome will be positive as opposed to meaningless or even negative.

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