Law School Regulators And The Value Proposition Of Law School Clinics

There's an interesting dialogue on the topic of law school clinics over at Prawfs.  That discussion is a nice companion piece to Vic Fleischer's Times op/ed and the conversation that followed here.  

It seems indisputable to me that good clinics significantly enrich a student's  law school experience.  But that doesn't necessarily answer the question of how one ought to assess clinic value.  Should we ask whether they make  students more prepared for practice?  More employable?  Those are typical metrics - and while sometimes clinics do deliver on them, other times they don't.  For example, a person who hopes to become a public defender is likely to be both better prepared and more employable.  Public defenders don't have the money to do all the training of young lawyers and their work is very similar to clinic work in a number of respects.  And the very choice to do a clinic has a critical signalling effect from the point of view of public interest employers.

It's less certain that a clinic will increase the odds of a person scoring a job at Skadden Arps.  And once employed there, the clinic experience is less obviously certain to make a student more "practice ready."  But that doesn't answer the question of whether the clinic adds value.  Clinics can be a great way to learn legal ethics, client communication, negotiation, multitasking, self-awareness, cultural competence and a host of other skills that Skadden may not consider essential to its hiring decision.  But even though Skadden may consider a 4.0 GPA the best evidence of practice-readiness, I think many law grads will have more successful careers - including at a shop like Skadden - having gained those skills honed in a clinic.  

As Bob Kuehn has noted, the recent call by CLEA to mandate experiential education isn't a demand for major dollar investment by every law school.  The requirement could be fulfilled in varying ways, at varying cost points - although many CLEA members would actively argue that clinics are a particularly good way to deliver experiential education.  The call is an effort to make the case that the skills students learn in experiential settings are both essential to the mission of every institution calling itself a law school, and poorly provided for in non-experiential settings.  Does that look to some people like special pleading for funding experiential education by a marginalized faculty community?  Perhaps.  But no more so than the special pleading by an empowered faculty community - the tenured faculty - embodied by Vic Fleischer's call to protect research faculty lines.  Both groups are arguing for their conception of quality control which, it turns out, also results in jobs for faculty in their respective communities.

It's worth noting, however, that this debate really involves the  two powerful non-market regulators of law school curricula: the ABA and (less obviously, but importantly) each school's tenured faculty.  This disagreement over clinics and experiential education has the potential to play out as a  battle between these regulators, with clinicians pushing the ABA to require experiential education even as some tenured faculty (and administrators) try to manage  law school priorities in other directions.

And this entire debate is perhaps most troubling to folks - particularly some in the law school scam movement - who believe that all faculty (clinical and otherwise) are simply acting out of self-interest, rather than the educational and financial interests of their students.  The sad reality is that, in many respects,  law schools have themselves to blame for this credibility crisis.

Comments

[Charles Paul Hoffman]

One reason why clinics may not be relevant to those going on to BigLaw careers is that they are overwhelmingly focused on litigation. There are some transactional clinics, but it's not realistic to expect someone interested in, say, securities work to get relevant experience in law school. The entire discussion on clinics seems to assume everyone becomes a litigator, which is far from accurate.

[Vic]

A couple of clarifications.

1. I did not write a "call to protect research faculty lines." At many schools, the number of research lines should decrease substantially. But it should happen by attrition, not by firing the untenured faculty.

Many universities offer buyout programs to make retirement an attractive option.

2. Anyone who knows me knows I am a fan of practical/skills education. Let's move out of the silos and integrate skills work with podium classes.

A key question is whether to deliver needed skills through clinics or through simulations. Simulations are easier to scale and much cheaper. I would rather see a program with 120 students and one tenure-track faculty + six adjuncts vs. a program with 24 students with two clinicians.

3. You can close a clinic without firing the clinician. Many clinicians are talented podium teachers as well. I don't think it's unreasonable to ask a clinician to teach a podium class and a big simulation class (along with adjunct faculty to help manage the grading workload).

[MacK]

I have my doubts about clinical education - in that I am not entirely sure that clinics contribute enough to justify their costs both in student time and tuition. Before I get flamed for this point let me explain what I mean.

My understanding is that clinics tend to be focussed on a narrow field of pro-bono work for members of the public, and then generally on student teams taking on a single matter for a semester, which means that it is hard for the student to see the matter through from intake to conclusion. In addition the students in the clinic are very closely supervised - which is good for the public but it further narrows the experience. To take a contrast, as a law clerk to a law firm in my final years of law school - I seemed to write evidentiary motions every week, as well as first cuts motions to dismiss, parts of SJs etc. - i.e., repeated motions, etc. while doing other tasks mostly on litigation. As a junior lawyer I most have written 10-20 motions a year for 2-3 years, maybe more (it was a blur), as well as drafting contracts, licenses and IP and antitrust opinions To what extent does a clinic really impart the experience that a new lawyer gets in even their first six months (assuming they are not on endless document review.) That said, the big weakness of my early career was narrowness - you did what comes in the door. The trouble is that clinics have that same weakness - they impart quite narrow, perhaps narrower experience than practice.

I think that in many respects, if law schools killed a lot of the "law and [current professorial enthusiasm for something unrelated to law]" courses in favour of better and more doctrinal courses it would be much more useful. There are a slew of subjects that I needed to learn on the job when I entered practice - one or two because they were taught atrociously, but many because I was not able to take them within the number of credits available in my last two years and the scheduling of the classes around the inane subjects that actually interested the professors. Later as a GC I wished I had for example taken more courses in employment law and personnel management.

As a practicing lawyer you do not get a chance to learn subjects broadly or in depth - your learn them to the extent that you have time to find out what you need to deal with the current problem presented. Does more clinical education come at the expense of such courses - or will law professors accept that they cannot teach their enthusiasm of the movement "law and [......]" before they teach core "[subject] law" and "law of [subject]" courses. Inter alia, there are far to many Constitutional Law courses and Con Law professors - it is not a huge part of anyone's practice, however wonderful it seems to the academy.