Monday, November 13, 2017

Clinical Legal Education beyond the Bicentennial

by Andrew Mamo ’14

A century ago, Harvard Law School’s centennial report offered a brief comment on the role of experiential learning: “Such experiments have been more successful in affording amusement than in substantial benefit to the participants. A fact trial now and then is well worth while, but only as a relief to the tedium of serious work.”

Today, at the law school’s bicentennial, clinics are firmly established within the law school. And yet, as traditional forms of legal education continue to account for roughly 90–95% of a typical law student’s credit load, it remains worth clarifying the role that clinics can play within a legal education and how the law school can use them to accomplish more ambitious goals in its third century.

Clinics are celebrated for giving students opportunities to do important public interest work. Indeed, one vital motivation for the first law school clinic, opened by John Bradway at Duke in 1931, was to provide legal aid in North Carolina, where existing resources could not meet the needs of the community. The wave of clinical expansion of the 1960s and 1970s, exemplified by the work of HLS’s own Gary Bellow, similarly emphasized the role of clinics in advancing justice. The need for such public interest work is no smaller today than it was in those earlier moments: basic legal services remain out of reach for many, and the very existence of the Legal Services Corporation is threatened. It is in this capacity that clinics star in the “HLS in the Community” event, to be held in April 2018.

Clinical education is also often justified today on the basis of building skills that will make graduates more marketable to employers who are increasingly unwilling to bear the costs of training new lawyers. Clinics put the development of the facts of real legal matters at the center of the educational experience, and allow students to assume professional responsibility for doing high-quality legal work with repercussions beyond campus. For many students, a legal clinic is their first opportunity to do professional work and develop client-facing skills. To this end, HLS advertises the specific skills to be developed in each clinic.

But too much emphasis on the service and skill-building dimensions create a misperception about what clinics can achieve as a form of legal education. In an academic setting, clinics’ practical virtues are still coupled with a lingering suspicion of their intellectual heft. In the most extreme formulation of the critique, clinics can seem like conservative forms of legal education—so tethered to socializing students in what the law is that they lose sight of what the law ought to be. It needn’t be this way, if we appropriately emphasize the specific educational virtues of clinical education.

The educational possibilities that clinics afford have been stressed since the 1930s by Individuals like Jerome Frank and Bradway. Clinics shine a light on the experiences of those who interact with the legal system and show the practice of law in action, rather than as a collection of settled cases, thereby offering a different perspective on the law than classroom-based classes using the casebook method. Clinics illuminate the fundamental lived experience of most legal practitioners—that they operate in a service industry, working to advance the interests of their clients. Clinics are the best opportunity in law school to begin to think critically about what client service means. While other forms of experiential learning, such as simulations, helpfully focus students on being partisan advocates and problem-solvers while developing important skills, they still remain closer in spirit to traditional courses than to clinics by keeping the stakes low and the facts tidy. In clinics, students find that actual legal work is unlike the forms of legal analysis that take place in the lecture hall—in ways both exciting and tedious. Students become responsible for developing the relevant facts rather than finding them pre-digested and neatly summarized. Students become responsible for actual clients, which raises the stakes of reaching defensible and actionable conclusions by giving the ethical rules some actual bite in situations where life, liberty, and property may be on the line.

As components of a legal education, clinics are not just pro bono internships. Clinics are uniquely situated to encourage students to interrogate legal practice and thereby contribute to a theory of lawyering. Students are forced to inhabit the role of the lawyer, potentially for the first time, and encouraged to reflect critically upon what it means to practice law. Do they experience tensions between the professional judgment that lawyers are expected to employ, on the one hand, and the judgment that people ordinarily employ, on the other? Do they experience tensions between the methods that lawyers use to construct arguments and the methods that they use in other situations? Moving from the individual experience of lawyering to broader political questions, are legal tools the right tools for the job or is the legal approach poorly suited to achieve the right outcomes? Most fundamentally, is the student-advocate’s work furthering justice? These are questions that can be productively addressed at this particular moment in the students’ development as lawyers, while they remain in the university’s atmosphere of critical inquiry, freed from the pressures of full-time practice. The students themselves are the subject matter of the clinic, no less than the specific body of law that they engage with and the skills that they learn to use.

Clinical education accomplishes important results in providing students with the opportunity to do meaningful work and develop valuable skills. And yet the most valuable aspect of clinics may be their potential to hold up a mirror to the students as they undergo this metamorphosis into lawyers. For students willing to devote time and energy to this process of critical self-reflection, the experience of clinical education can offer an unparalleled opportunity for learning how to reflect on practice. The third century of legal education at Harvard should prioritize this aspect of clinical education no less than its possibilities for service and skill development.

Andrew Mamo
Andrew Mamo is a Clinical Instructor and Lecturer on Law at the Harvard Negotiation and Mediation Clinical Program.

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