LEGAL EDUCATION: ENERGY AND TRANSFORMATION
David J. Herring
The clinical movement has had
a dramatic impact on the nation’s law schools.
Administrators and faculty members cannot successfully ignore it or
wish it away. Instead, they must
address it and seek ways to harness its energy.
perspective on this subject stems from my entry into academia as a clinician.
I was a faculty member in the University of Michigan’s Child Advocacy
Law Clinic for three years before joining the faculty at the University of
Pittsburgh in 1990 with the charge to create and implement an in-house clinic
program. Over the past ten years,
I have assisted in the creation of the Child Welfare, Corporate Counsel,
Elder, Environmental, Health, and Low Income Taxpayer Clinics.
Thus, my actions indicate that I am a supporter of clinical legal
education. However, my support is
not unconditional. As indicated
below, I recognize that clinical legal education poses uncomfortable
challenges and significant problems for legal educators.
of its tremendous impact on law school environments, clinical education has
generated a great deal of discussion at conferences and in the literature
addressing legal education. Discussions
have focused on two primary areas. First,
clinical educators have presented their teaching methods as models for the
transformation of legal education. Often,
they have contrasted their teaching methods with traditional approaches, which
typically involve large classes dominated by a faculty member who lectures or
engages selected students in a Socratic dialogue, culminating in a single
examination used primarily to rank students.
Clinic courses, on the other hand, emphasize low student/faculty ratios
and an educational environment characterized by teamwork, group learning, and
on-going assessment and feedback. At
its best, clinical teaching does not aim merely to impart and foster the skill
of legal analysis, but strives to develop a well-rounded legal professional
who can learn from her own experiences through a rigorous process of critical
the status of clinical faculty members has been the subject of endless debate,
especially within the community of clinical teachers.
Because it arrived late on the scene and because of funding realities,
clinical education has not fit easily into the traditional tenure-track
faculty system. Clinical faculty
members often do not have job security equivalent to tenure, falling prey to
the mentality of last in, first out. Clinical
educators were the last members of the academy allowed in the door of the
ivory tower, and, as a result, are often considered expendable, not part of
the core educational enterprise.
school funding schemes certainly appear to be consistent with this view, with
many clinic programs funded through temporary “soft-money” grants.
Although more and more law schools have moved clinical positions onto
their hard-money budgets, the stigma of soft-money roots and the related job
insecurity lingers. Many members
of law school communities often view clinical faculty as second-class
citizens. They do not perceive clinical faculty as “traditional,”
“stand-up” teachers who truly engage students in rigorous legal analysis.
Many still see them as existing outside the core of legal education.
is a somewhat ironic situation in light of the prominence of clinical programs
in law school promotional materials. A
review of law school admissions materials and alumni magazines reveals a
strong emphasis on clinic programs. Prospective
students are very interested in the opportunity for hands-on experiences.
They want to step into the role of lawyer. Thus, admissions materials wisely stress such opportunities.
In addition, alumni tend to want their law schools to provide practical
skills training and to focus on teaching real-life issues rather than
developing theoretical constructs. Thus, alumni magazines appropriately highlight clinic
despite the promotional focus on skills training and clinic programs, the
overall regard for clinical faculty and clinical programs is one of
ambivalence. It is fairly easy to
establish one or two clinics that a school can promote heavily to external
constituencies while still valuing traditional teaching and scholarship as the
highest callings. In this way, a
law school’s clinics may serve a relatively low percentage of students but
yet provide adequate cover for the faculty’s actual focus.
As a result, the hiring and retention of a few clinical faculty members
is necessary and useful to most law schools, but the clinical faculty will
almost certainly occupy a second-class position within the faculty community.
situation leads to difficult discussions and debates.
The status difference is always just below the surface, even in
discussions that would seem to have nothing to do with clinical legal
education. For example, members
of the traditional faculty may be more likely to attack or dismiss the views
of colleagues who teach clinical courses.
This leads to a divisive environment that can embitter and dishearten
clinical faculty members, and even the faculty as a whole.
Within such an environment, there are no winners.
The faculty becomes focused on unproductive battles over status, and in
the process, foregoes opportunities to further the school’s mission.
As a result, everyone loses, especially the institution as a whole.
do not wish to explore the issues raised within these common discussions of
clinical education in any detail. I
would like to move the discussion of clinical legal education in a different
direction. No matter what one thinks about clinical teaching methods,
clinical faculty status, or even clinical education in general, I believe that
the creation of clinics can transform a law school’s curriculum and
environment in many positive ways.
and foremost, the creation of clinic programs requires and unleashes
entrepreneurial energy. For a
clinic program to be established, a critical mass of faculty members and
administrators must join together to design a clinic program and to secure the
necessary resources. The
resource-raising aspect makes this a very pragmatic venture that requires
teamwork. Engaging in such an
endeavor can transform those involved, requiring and allowing them to think
and work in new ways. This is
because law school faculties have a tradition of acting as a group of
independent scholars, with little or no collaboration among them on anything
other than committee work that is often accorded a low priority.
Upon becoming involved in starting a clinic program, a faculty member
who is used to working in a solitary mode as a legal theorist and scholar will
have to work closely with colleagues to achieve a pragmatic, tangible result.
transformation from solitary scholar to pragmatic creator and revenue raiser
may not be unqualifiedly positive. Although
an environment characterized by energetic teamwork may result, the fundraising
effort may require compromises. For
instance a legal scholar who has always devoted substantial time to his
research and writing may find that he can no longer produce the type or
quantity of scholarship he is accustomed to producing.
The fundraising goal may become a paramount focus and a life devoted
primarily to the production of scholarship may be compromised.
however, the initiative to design and fund a clinic tends to affect
participating faculty members in a dynamic and positive way.
Entering the real world, they work together to serve their students and
their communities and often come to appreciate the pressures faced by
administrators. The effort unleashes a great deal of energy and allows for
the discovery of common ground. The
positive effects of such a transformation of a law school’s environment
cannot be overestimated.
new clinic will also bring new members to the law school community.
Typically, a law school will hire a full-time clinical faculty member
to implement the clinic program and supervise student work.
It is likely that this faculty member will possess a very different
background and perspective from that of members of the traditional faculty.
This individual may have less impressive educational credentials,
possibly having graduated from a law school not included in the “top ten”
and possibly lacking a law review position or prestigious clerkship.
But this individual will likely have a more extensive practice
background, probably in a specific area of public interest law, and may also
have more extensive administrative experience.
light of this different background and perspective, the hiring of a clinical
faculty member can change the character and dynamics of faculty discussions.
The clinical faculty member is likely to be more willing to challenge
traditional approaches and views and may be more accustomed to contentious
debate. She will likely come from
a practice environment within which different views have been shared
forthrightly, debated and decided without undue personal animosity.
She will not be steeped in the intricacies and niceties of faculty
politics, with its subtle barbs and muted warfare.
such forthrightness to faculty discussions can be quite refreshing and useful.
It can lead to the engagement of the entire faculty in important
discussions of teaching methods and curricular design.
For example, as the clinical faculty member designs interdisciplinary
skills exercises and other group-learning methodologies, she can challenge the
rest of the faculty to adopt such approaches in traditional classes.
She will likely demonstrate that these methods work and that faculty
members can successfully depart from the standard lecture or Socratic dialogue
formats. In the context of
curricular reform, the clinical faculty member may challenge colleagues to
consider incorporating a practice skills and legal ethics course in the
course, a clinical faculty member can have more impact by enlisting members of
the traditional faculty to participate actively in the clinic program.
Involving other faculty members in the clinic will expose them to new
teaching methods and to a new type of student engagement.
The most effective clinical faculty strive to include selected members
of the traditional faculty in their grant proposals through the designation of
a percentage of their teaching and service activity to the clinic program.
Once a portion of a traditional faculty member’s salary is formally
underwritten by a clinic grant, that faculty member’s involvement in the
clinic program is assured and the clinical faculty will now have an
opportunity to vividly demonstrate the strength of clinical education.
is true even for faculty who have opposed clinics.
Based on my experience, the best way to overcome opposition is to
involve the opposition in the clinics. Once
they observe the possibilities for student engagement, client service, and
professional collaborations, they
are usually hooked. They become
invested in teaching students sophisticated skills through the exploration and
discussion of the complex situations and issues presented by clinic clients.
They also come to realize the personal and professional fulfillment
that results from solving the problems of actual individuals.
In addition, they begin to realize the benefits that can come from
collaborating with professionals from other disciplines.
As a result of their participation, they become champions for the
clinic and their natural creativity will likely lead them to pursue clinical
education initiatives, or at least to explore initiatives that grow out of and
relate to their clinic experiences.
good example is the health law program at the University of Pittsburgh School
of Law. The
Law School came to clinical education late, initiating an in-house
clinic program in 1990. After
successfully applying for funding from the United States Department of
Education, the School created an Elder Law Clinic in 1991 and a Health Law
Clinic in 1992. The School hired three full-time clinical faculty members to
implement these new clinics.
new clinical faculty members involved several members of the traditional
faculty in their clinic courses. In
addition, the faculty established a long-term contract system for clinical
faculty that required several traditional faculty members to observe and
evaluate the clinical faculty members’ teaching each year.
Through these experiences, traditional faculty members became exposed
to clinical teaching methods and a significant number began incorporating
skills exercises and group problem-solving approaches in their courses.
dramatically, the traditional faculty in the health law area came to realize
that the Law School and the University had substantial resources with which
they could construct a specialty program.
Using the clinics as core required courses, they worked with the
clinical faculty to design a
Health Law Certificate Program, has been a great success in terms of student
recruitment and career placement. U.
S. News and World Report recently ranked Pitt’s Health Law Program 13th
in the nation, a noteworthy achievement for a school that does not offer an
LL.M. degree in the area.
momentum provided by the clinics powered this significant curricular
initiative. It seems that the
members of the School’s traditional faculty, having observed the energy of
the clinic programs, decided to reinvigorate their own teaching agendas.
The clinics appeared to unleash
the entrepreneurial spirit of the faculty, giving rise to an environment of
collegial competition over new program initiatives.
environment of friendly competition has propelled discrete groups of faculty
to contemplate the development of other specialty programs that attract highly
qualified students, guide students in structuring their legal education, and
assist them in securing employment. Separate
groups of faculty have now created certificate programs in Civil Litigation,
Environmental Law, and International Law.
Other groups are considering programs in Estate Planning and Elder Law,
Family Law, Intellectual Property Law, and Tax Law.
Whether one favors the development of specialty programs or not, the
development of these programs at Pitt provides clear evidence of the high
level of energy generated within the faculty as a result, at least in part, of
a clinic or experiential learning program anchors each of the certificate
programs. The environmental law program is the most dramatic example.
The faculty group that proposed this program refused to initiate it
without the establishment of a clinic and the provision of necessary
administrative support. This
position resulted in a three-year delay in implementing the program as the
School sought funding for the clinic component.
Fortunately, this effort was successful, with a local foundation
providing a $2 million endowment for the program.
The faculty group is now implementing the certificate program.
The civil litigation program is structured around a broad array of
skills courses, moot court experiences, practicum courses and clinics. In addition, a major component of the international law
program consists of study abroad opportunities, relevant field placements with
law firms and corporate law offices, and a unique, skills-oriented set of
foreign languages for lawyers courses.
introduction of clinical education at the University of Pittsburgh School of
Law has given rise to a spirit of curricular reform within the faculty.
This reform movement has been slow, incremental, and relentless. In my mind, it is the best and strongest type of reform
movement—one that bubbles up from individual faculty interest and
initiatives, not one that is imposed by the administration.
It is true reform—not the often false reform exercise characterized
by faculty retreats, the development of mission statements, and the
preparation of comprehensive strategic plans.
addition to its impact on teaching and curricular design, the introduction of
clinical education spurs a different type of legal scholarship.
As traditional faculty become involved in the clinics, they often
become interested in the issues raised by their clinical experiences.
This naturally leads to inquiries that may result in pragmatic research
and writing projects that are often practice-oriented and interdisciplinary in
nature rather than focused almost exclusively on legal or political theory.
example, students and faculty involved in a child welfare law clinic program
could examine the fundamental reform of child welfare laws over the past two
decades that has been based on permanency planning concepts emanating from the
field of social work. Their
involvement in the trenches of a public child welfare system may cause them to
question these concepts, which are based on child development theories and are
largely unverified by empirical research.
Participation in the clinic may inspire a faculty member to engage in
scholarly activities that explore this pressing child welfare law issue.
It may even spur the faculty member to engage in empirical research to
test the crucial hypotheses that support permanency planning concepts.
Such an endeavor may require the law faculty member to reach out to
others who can help design and implement a sophisticated empirical research
project and may inspire an effort to raise external funding for such work.
course, legal scholarship at a theoretical level is extremely useful and
should be encouraged. But it need
not be the only type of scholarly endeavor in which faculty members engage.
The introduction of clinical education can help to diversify a
faculty’s scholarly efforts. It
will often result in a more
pragmatic scholarship that a dean can honestly and successfully present to the
school’s prospective students, current students and alumni as being relevant
development of clinical programs can also lead to a powerful sense of
teamwork. As discussed above,
clinical faculty members often enlist their colleagues to become part of the
clinic team. In addition, they
often require their students to work in teams.
In this way, they encourage participants to engage in a collegial
problem-solving endeavor rather than a solitary, individualistic effort.
In the best clinical programs, faculty and students join together to
creatively solve client problems and address important public policy issues. Every participant begins to see how he or she can work with
others to further his or her lawyering skills, teaching, scholarship and
programs can not only affect law schools by teaming law students and faculty,
but also by including individuals from other disciplines.
Because expertise in fields other than the law is often needed in order
to solve client problems, participants in the clinics will frequently make
connections with outside experts such as psychiatrists, psychologists,
physicians, economists, biologists and social work professionals.
As a result, a clinic will often involve experts from other units of
example, in beginning the University of Pittsburgh’s Child Welfare Law
Clinic, faculty and students realized that they needed guidance from experts
in the field of social work. The
faculty opened a discussion with their counterparts at the University’s
School of Social Work, who were thrilled to become involved with the law
school, a unit previously perceived as isolated and unapproachable.
Two social work faculty members became very involved in the law clinic,
with one eventually team-teaching the course with the law faculty.
social work faculty members provided the law students with invaluable insights
in their cases and also broadened their education as legal professionals.
For instance, they educated the law students on the appropriate roles
of other professionals. This
allowed the law students to realize that they did not control every aspect of
a case and that they needed to work with other professionals, acting
appropriately within their role as legal professionals.
Law School faculty also benefited from their interactions with the social work
faculty. First, they observed a
very different style in the classroom—predominantly lecture combined with
group problem-solving discussions that did not include a Socratic dialogue.
Once the lecture was presented, there was no inquisitor, no master.
Students learned by thinking and doing together, placing themselves in
the professional role in order to solve client problems.
the law faculty had an exciting opportunity to explore issues from the
perspective of another discipline as the interdisciplinary clinic faculty
planned for class sessions together.
In the child welfare context, for instance, the law faculty learned
about a whole new source of research on foster care and kinship care.
This introduction to new knowledge and new perspectives opened doors to
fruitful avenues for scholarly work. Their
scholarship became more nuanced and creative as a result.
addition to the tangible interdisciplinary benefits realized within the
university community, clinics also provide enormous benefits through
participants’ interactions with members of the community at large.
For example, faculty and students in the clinics must interact with
other legal professionals in the community. Through their casework, clinic
participants often gain tremendous respect from other attorneys and from
judges. Such respect enhances the
law school’s reputation within the community and provides tremendous support
for a dean’s effort to establish and maintain positive relationships with
the school’s alumni. The graduates of the school feel good about what the school
is doing. They feel that the
school teaches, and most importantly, values what they do. They also see real
opportunities to become involved with the school by teaching or assisting in
the clinic programs. The school
gains a level of credibility with a vital constituency that it usually cannot
achieve through its traditional teaching and scholarly endeavors.
(This credibility gain is especially pronounced when the members of the
traditional faculty who many alumni had as teachers become involved in the
clinics. Again, it sends a message that the actual practice of law is
respected and valued.)
is clear from the preceding discussion, I believe very strongly that clinical
legal education provides many by-products that should be fully considered as a
law school community charts its course. Full
appreciation of these by-products may not be necessary to sustain the clinical
movement; this dynamic form of legal education has clearly established a
permanent niche for itself, with most law schools having created at least one
quality in-house program. But a
full consideration of the incidental benefits produced by clinic programs could
help us to break free from nasty, divisive status disputes and to engage in
fundamental discussions of legal education that extend well beyond the
exploration of clinical teaching methodologies.
It could help us accord clinical education and educators the respect that
they deserve. Law school
communities could then engage in honest, rigorous strategic planning that
includes, and sometimes centers on, clinical education.
must be said that not even the dean and the faculty at a particular school can
predict exactly where specific clinical initiatives will lead them.
But such initiatives are highly likely to generate a great deal of
entrepreneurial energy within a law school community.
In order to harness and control this type of energy, the dean and faculty
must make strategic choices as to the appropriate areas in which to initiate
clinic programs. Such strategic
planning will allow the dean and faculty to target clinic initiatives in order
to attract available funds and to mobilize specific faculty members who are
willing to see the initiatives through to fruition.
In addition, this strategic planning process will often assist the dean
in fostering good relations with university administrators, who appreciate
evidence of deliberate decisions to make targeted investments.
initiatives provide deans with exciting opportunities to move law schools
forward in a way that gains faculty and university support.
Deans should not lose sight of these opportunities as they consider, and
engage in debates about, the funding and status of clinical programs.
J. Herring. All rights
and Professor of Law, University of Pittsburgh School of Law.
I would like to thank Martha Mannix, Alan Meisel, Thomas Ross and
Lu-in Wang for their comments and support.