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Clinical Legal Education: A Historical Overview

Clinical Legal Education: A Historical Overview. Margaret Martin Barry Vermont Law School mbarry@vermontlaw.edu April 29, 2016. What I Will Discuss. Brief History of Clinical Legal Education What We Do and Why We Do It? Goals of Clinical Education Experiential Learning Models

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Clinical Legal Education: A Historical Overview

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  1. Clinical Legal Education:A Historical Overview Margaret Martin Barry Vermont Law School mbarry@vermontlaw.edu April 29, 2016

  2. What I Will Discuss • Brief History of Clinical Legal Education • What We Do and Why We Do It? • Goals of Clinical Education • Experiential Learning Models • The Evolving Landscape

  3. Origins of Legal Education in the U.S. • (1776) Apprenticeship system • (1779) First law faculty at William & Mary • (1817) Founding of Harvard Law School • (1860) Twenty law schools in U.S. • (1870) Langdell’s casebook method

  4. Accreditation • (1878) American Bar Association established • Improve competence of new lawyers • (1893) ABA Section of Legal Education and Admission to the Bar • The Council later becomes accrediting agency • (1923) ABA approves first 39 law schools

  5. Early Critique • (1917) • William V. Rowe, Legal Clinics and Better Trained Lawyers - A Necessity 11 Ill. L. Rev. 591 (1917)

  6. Origins of Clinical Legal Education in the U.S. • (1893) Students at U.Penn. create “dispensary” • Non-credit awarding • Student-run • (1928) University of Southern California creates 6-wk clinical program • (1931) Duke starts 1st in-house clinical program • (1969) first 9 CLEPR grants announced • Including South Carolina, Utah, Wisconsin, Harvard • (1970) Clinical programs for credit grow to 80 • (1973) More than 100 total CLEPR grants made • 5/6 of law schools invest in own clinical programs • 42 of 51 jurisdictions have promulgated student practice rules

  7. CleprOrigins • (1968) Ford Foundation • Commits $12M over 10 years • “To incorporate clinical education as an integral part of the curriculum of the country’s law schools” • Council on Legal Ed. for Prof. Resp. (CLEPR) • William Pincus President and fulltime Exec. Director • $$ supported in-house, live-client clinics in which students received academic credit and were taught by a person with faculty status

  8. Title IX Funding • Title IX of the federal Higher Ed Act in the late 70’s and continuing to 1997 • increased the number of in-house, real client clinics to 147 of the then 178 ABA – approved law schools.

  9. MacCrate Report • (1992) MacCrate Report published by ABA • Identified skills and values necessary for lawyers to assume “ultimate responsibility for a client” • Skills: problem solving, legal analysis and reasoning, legal research, factual investigation, communication, counseling, negotiation, litigation and litigation alternatives, organization and management of legal work, and recognizing and resolving legal dilemmas

  10. MacCrate Report • Values: providing competent representation, seeking to promote justice, fairness and morality, seeking to improve the profession, and commitment to self-development • Law schools must play significant role in developing skills and values

  11. Calls for Increased Clinical Legal Education • (2007) Roy Stuckey, Best Practices for Legal Education • Best practices across the law school curriculum – professional values can best be taught in law school clinics • (2007) William M. Sullivan, et al., Educating Lawyers • Three apprenticeships • Cognitive or intellectual - knowledge • Apprenticeship to the forms of expert practice - skills • Ethical/social apprenticeship - values

  12. today • Today, all 207 ABA approved law schools have in-house clinics, externships or both.

  13. Goals of Clinical Legal Education • Learn through experience • Instill a dedication to access to justice for traditionally unrepresented clients • Reinforce the duty to use the law and the legal skills developed to serve the client and society

  14. Models • In-House Clinics • On-campus law office supervised by law faculty • Hybrid Clinics • Combine direct representation with externship elements • E.g., Criminal Law Clinic • Externships / Field Placements • Classroom component focuses on broader issues collateral to case work (e.g., self-assessment, professionalism)

  15. Types of representation • Client Representation • Litigation: Criminal and Civil, Trial and Appellate • Non-Litigation/Transactional • ADR/Mediation: Student as Neutral • Legislative Advocacy • Information and Policy • Street Law

  16. methods • Classroom instruction designed to introduce lawyering skills, values and relevant substantive law • Simulations, roleplays, other interactive classroom learning • Applied to real life lawyering experiences • Develop reflective skills • Ask students to self-assess; teach effective self-assessment • Provide feedback that helps students grow

  17. ABA Standards • (1993) ABA Standard 301requires schools to prepare graduates to pass the bar and to participate effectively and responsibly in the legal profession • (1996) ABA Standard 302(b)(1) • Requires substantial opportunities for supervised live-client or other real-life practice experiences • “Designed to encourage reflection” on their experiences, and the values/responsibilities of the profession • Encourage development of self-assessment abilities

  18. ABA Standards 2015 • 301: prepare graduates for admission to the bar and for effective, ethical, and responsible participation in the profession • 302: schools must establish learning outcomes that include competency in … problem solving, written and oral communication, exercise of proper professional ethical responsibilities to clients and the legal system, other professional skills. • 303: 6 credits hours of experiential coursework – in a clinic, field placement, or simulation (and keeps the substantial opportunities language) • 304: for the first time, clinic and simulation courses are defined

  19. Field Placements • Move from Standard 305 to Standard 304, and • Allow students to be paid during their externships • To address concerns, voiced fairly consistently by externship faculty, that paid externships may undermine what might be expected of the students, the amended rule would require “a law school to demonstrate that it had sufficient control of the student experience for field placements for which compensation was received”

  20. ABA Standard 405 • Full time clinical faculty members are to have a“form of security of position reasonably similar to tenure…this Standard does not preclude a limited number of fixed, short-term appointments in a clinical program predominantly staffed by full-time faculty members, or in an experimental program of limited duration.” • Interpretation 405-6 • A form of security of position reasonably similar to tenure includes a separate tenure track or a program of renewable long-term contracts… • Interpretation 405-8 • A law school shall afford to full-time clinical faculty members participation in faculty meetings, committees, and other aspects of law school governance in a manner reasonably similar to other full-time faculty members.

  21. “STATUS” OF CLINICIANS • Monetary and non-monetary benefits • Rights of citizenship (committee participation and voting) • Academic freedom • Autonomy • Power • Access to resources

  22. “STATUS” OF CLINICIANS • Security of position • Unitary tenure-track (25.4%) • Clinical tenure-track (10.2%) • Long term contract (19%; 4-6 yrs) • Short term contract (25.1%; 1-3 yrs) • Adjunct (1.5%) • Clinical fellows (11.1%) • Non-Adjunct at Will Employee (5.4%) • www.CSALE.org 2013/2014 Survey; reporting status of those who supervise the casework component of clinics

  23. Still a thing? • Legal education providers [should] focus on making future lawyers practice ready by enhancing clinical work and supervised activities such as meeting with clients in the clinical setting and in court. We must not abandon the traditional classroom, but we should enhance it . . . The goal is for students to participate in clinical programs and other courses that provide skills that they can apply in real-life settings. - NY State Bar Resolution (2011)

  24. Sources • ROY STUCKEY, BEST PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROADMAP (2007) • WILLIAM M. SULLIVAN, ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (2007) • J.P. “Sandy” Ogilvy, History of Clinical Legal Education, presentation at AALS Clinical Section Conference, May 2004, San Diego, CA • Susan Bryant, Elliott S. Milstein, Reflections Upon the 25th Anniversary of the Lawyering Process: An Introduction to the Symposium, 10 Clinical L. Rev. 1 (2003) • David A. Binder & Paul Bergman, Taking Lawyering Skills Training Seriously, 10 Clinical. L. Rev. 191 (2003) • Margaret Martin Barry, Jon C. Dubin, Peter Joy, Clinical Education for This Millennium: The Third Wave, 7 Clinical L. Rev. 1 (2000) • LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT - AN EDUCATIONAL CONTINUUM (REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP) (1992) (“MacCrate Report”) • Warren E. Burger, The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Fordham L. Rev. 227(1973) • William V. Rowe, Legal Clinics and Better Trained Lawyers - A Necessity 11 Ill. L. Rev. 591 (1917)

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