teaching and doing: the role of law school clinics in

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2004

Teaching and Doing: The Role of Law School Clinics in Enhancing Teaching and Doing: The Role of Law School Clinics in Enhancing

Access to Justice Access to Justice

Jane H. Aiken Georgetown University Law Center, [email protected]

Stephen Wizner Yale Law School

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73 Fordham L. Rev. 997-1011 (2004)

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GEORGETOWN LAW Faculty Publications

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Teaching and Doing: The Role of Law School Clinics in Enhancing

Access to Justice

73 Fordham L. Rev. 997-1011 (2004)

Jane H. Aiken Stephen Wizner Professor of Law Professor of Law Georgetown University Law Center Yale Law School [email protected] [email protected]

This paper can be downloaded without charge from:

Scholarly Commons: http://scholarship.law.georgetown.edu/facpub/303/

Posted with permission of the author

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http://scholarship.law.georgetown.edu/facpub/303/

TEACHING AND DOING: THE ROLE OF LAWSCHOOL CLINICS IN ENHANCING ACCESS TO

JUSTICE

Stephen Wizner*

Jane Aiken**

"Legal education plays an important role in socializing the nextgeneration of lawyers, judges, and public policymakers. Asgatekeepers to the profession, law schools have a uniqueopportunity and obligation to make access to justice a more centralsocial priority."'

Deborah Rhode has provided a compelling critique of law schoolsfor their failure to embrace a justice mission and inculcate in studentsthe professional value of providing pro bono service to the poor. Heranalysis assumes the basic belief that we as a society must strive tomake legal assistance available to the poor in both criminal and civilcases, and that law schools have been complicit in the pervasive denialto the poor of access to justice.2

The primary obligation to provide legal services to the poor resideswith the government, and to a lesser extent, with the legal profession,not with law schools. Nevertheless, law schools do have someobligation to contribute to the solution of the crisis in access to justice,and it seems obvious that the obligation is best accomplished by lawschool clinics assisting low-income individuals and communities thatare underserved or have particular difficulty obtaining lawyersbecause of the nature of their legal problems.'

Clinical legal education has been focusing on legal services for theunderserved and on the justice mission of law schools for years.Those who built clinics a little more than three decades ago and thosewho funded them saw, like Rhode, a large, unmet need for legal

* William 0. Douglas Clinical Professor of Law, Yale Law School.

** William M. Van Cleve Professor of Law, Washington University of St. LouisSchool of Law.

1. Deborah L. Rhode, Access to Justice 193 (2004).2. Id. at 19.3. This obligation is expressed throughout Sec. L. Educ. & Admissions to the

Bar, ABA. Legal Education and Professional Develooment-An EducationalContinuum: Report of the Task Force on Law Schools and the Profession:Narrowing the Gap (1992).

HeinOnline -- 73 Fordham L. Rev. 997 2004-2005

TEACHING AND DOING: THE ROLE OF LAW SCHOOL CLINICS IN ENHANCING ACCESS TO

JUSTICE

Stephen Wizner*

Jane Aiken**

"Legal education plays an important role in socializing the next generation of lawyers, judges, and public policymakers. As gatekeepers to the profession, law schools have a unique opportunity and obligation to make access to justice a more central social priority.,,1

Deborah Rhode has provided a compelling critique of law schools for their failure to embrace a justice mission and inculcate in students the professional value of providing pro bono service to the poor. Her analysis assumes the basic belief that we as a society must strive to make legal assistance available to the poor in both criminal and civil cases, and that law schools have been complicit in the pervasive denial to the poor of access to justice?

The primary obligation to provide legal services to the poor resides with the government, and to a lesser extent, with the legal profession, not with law schools. Nevertheless, law schools do have some obligation to contribute to the solution of the crisis in access to justice, and it seems obvious that the obligation is best accomplished by law school clinics assisting low-income individuals and communities that are underserved or have particular difficulty obtaining lawyers because of the nature of their legal problems.3

Clinical legal education has been focusing on legal services for the underserved and on the justice mission of law schools for years. Those who built clinics a little more than three decades ago and those who funded them saw, like Rhode, a large, unmet need for legal

* William O. Douglas Clinical Professor of Law, Yale Law School. ** William M. Van Cleve Professor of Law, Washington University of St. Louis School of Law.

1. Deborah L. Rhode, Access to Justice 193 (2004). 2. Id. at 19. 3. This obligation is expressed throughout Sec. L. Educ. & Admissions to the

Bar. ABA. Legal Education and Professional Development-An Educational Continuum: Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (1992).

997

FORDHAM LAW REVIEW

representation for the poor in both criminal and civil cases.4 Theyalso observed the lack of practical involvement of the law schools inthe rights revolution sweeping the courts and communities ofAmerica.5 One of the primary reasons for having a clinic was toengage a law school more directly in providing that representation.6Much has happened in clinical education since those early days, butlittle has improved in the provision of legal services to the poor. ThisEssay revisits the issue of the role that law school clinics can, andshould play, in expanding access to justice. To do so we need to cast acritical eye on what we do, who we are, what we have become, andwhether we need to rediscover, redefine, and reimagine ourprofessional role as law school clinical teachers.

Thirty years ago a hardy band of public defenders and legal servicesattorneys stormed the academy.7 Many of the lawyers who startedbuilding and teaching in clinics at that time were lawyers who hadworked in legal aid and public defender programs and in civil rightsand other public interest advocacy programs.8 It is not surprising,therefore, that clinics began at many law schools primarily asprograms to enable law students to provide free legal services to thepoor or to bring important impact litigation, under the supervision ofpracticing attorneys. An important by-product of that service was anincreased awareness on the part of law students of the needs of thepoor and oppressed. Clinics were about skills training, providingservice, influencing policy, and developing future legal aid and civilrights lawyers. Some of us felt like kids in a candy shop; a publicinterest law firm funded by a law school with ready workers providingimportant client services.

4. See Douglas A. Blaze, Dgjd Vu All Over Again: Reflections on Fifty Years ofClinical Education, 64 Tenn. L. Rev. 939 (1997).

5. See, e.g., Robert C. Cumbow. Educatine the 21st Centurv Lawver. 32 Idaho L.Rev. 407 (1996): Anita Weinberg & Carol Harding. Interdisciplinary Teachin' andCollaboration in Higzher Education: A Concept Whose Time Has Come, 14 Wash. U.J.L. & Pol'v 15 (2004).

6. See generally Gary Bellow, On Talkinz Tougzh to Each Other: Comments onCondlin. 33 J. Legal Educ. 619 (1983): Robert J. Condlin. Clinical Education in theSeventies: An Anpraisal of the Decade. 33 J. Legal Educ. 604 (1983).

7. In 1959. the Ford Foundation founded the National Legal Aid and DefenderAssociation ("NLADA"). which established a National Council on Law Clinics. FordFound. Grantees and the Pursuit of Justice, available athttp://www.fordfound.org/vublications/recent articles/docs/lawrantees.odf (lastvisited Oct. 17, 2004). In 1968, the Ford Foundation gave $12 million over ten yearsto incoroorate clinical education as Dart of the curriculum of law schools. J.P. "Sandy"Ogilvy, History of Clinical Legal Education, at httn://www.aals.org/nlt2004/onilvv.odf(last visited Oct. 17, 2004). The Council on Legal Education for ProfessionalResponsibilitv ("CLEPR") was founded in 1968 with Ford monev. Id. From 1969-1973 CLEPR provided over 100 grants to law schools for clinical education. Id.

8. For a history of legal services from the viewpoint of a clinician, see Louise G.Trubek, U.S. Legal Education and Legal Services for the Indigent: A Historical andPersonal Perspective, 5 Md. J. Contemp. Legal Issues 381 (1994).

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998 FORDHAM LAW REVIEW [Vol. 73

representation for the poor in both criminal and civil cases.4 They also observed the lack of practical involvement of the law schools in the rights revolution sweeping the courts and communities of America.s One of the primary reasons for having a clinic was to engage a law school more directly in providing that representation.6

Much has happened in clinical education since those early days, but little has improved in the provision of legal services to the poor. This Essay revisits the issue of the role that law school clinics can, and should play, in expanding access to justice. To do so we need to cast a critical eye on what we do, who we are, what we have become, and whether we need to rediscover, redefine, and reimagine our professional role as law school clinical teachers.

Thirty years ago a hardy band of public defenders and legal services attorneys stormed the academy.7 Many of the lawyers who started building and teaching in clinics at that time were lawyers who had worked in legal aid and public defender programs and in civil rights and other public interest advocacy programs.8 It is not surprising, therefore, that clinics began at many law schools primarily as programs to enable law students to provide free legal services to the poor or to bring important impact litigation, under the supervision of practicing attorneys. An important by-product of that service was an increased awareness on the part of law students of the needs of the poor and oppressed. Clinics were about skills training, providing service, influencing policy, and developing future legal aid and civil rights lawyers. Some of us felt like kids in a candy shop; a public interest law firm funded by a law school with ready workers providing important client services.

4. See Douglas A. Blaze, Dejii Vu All Over Again: Reflections on Fifty Years of Clinical Education, 64 Tenn. L. Rev. 939 (1997).

5. See, e.g., Robert C. Cumbow. Educatim! the 21st Centurv Lawver. 32 Idaho L. Rev. 407 (1996): Anita Weinberg & Carol Harding. Interdisciplinarv Teaching and Collaboration in Higher Education: A Concept Whose Time Has Come, 14 Wash. U. J.L. & Pol'v 15 (2004).

6. See generally Gary Bellow, On Talking Tough to Each Other: Comments on Condlin. 33 J. Legal Educ. 619 (1983): Robert J. Condlin. Clinical Education in the Seventies: An Appraisal of the Decade. 33 J. Legal Educ. 604 (1983).

7. In 1959. the Ford Foundation founded the National Legal Aid and Defender Association ("NLADA"). which established a National Council on Law Clinics. Ford Found. Grantees and the Pursuit of Justice, available at http://www.fordfound.org/oublications/recent articles/docs/lawgrantees.odf (last visited Oct. 17.2004). In 1968. the Ford Foundation gave $12 million over ten years to incoroorate clinical education as oart of the curriculum of law schools. J.P. "Sandy" Ogilvy, History of Clinical Legal Education. at htto://www.aals.org/nlt2004/ogilvv.odf (last visited Oct. 17. 2004). The Council on Legal Education for Professional Resoonsibility ("CLEPR") was founded in 1968 with Ford money. Id. From 1969-1973 CLEPR provided over 100 grants to law schools for clinical education.Id.

8. For a history of legal services from the viewpoint of a clinician, see Louise G. Trubek, U.S. Legal Education and Legal Services for the Indigent: A Historical and Personal Perspective, 5 Md. J. Contemp. Legal Issues 381 (1994).

TEACHING AND DOING

The development of law school clinics did not come about withoutresistance and internal conflict. From the outset tensions emergedbetween the public service goals of the first generation of clinicalteachers and their funders, on the one hand, and the academic valuesof law school faculties on the other.' The faculties, to the extent theywere not openly hostile to the introduction of experiential learninginto the curriculum, as many were, were more concerned with theeducational value of clinical programs than with the newly hiredsupervising attorneys' legal services and social justice motivations.

Clinicians were a different breed from their law professorcounterparts. They were often housed in different spaces, not allowedto participate in faculty governance, and offered no job security.Indeed, many, if not most, clinicians had to raise funds to ensure theirown job continuation.10 Funding was scarce for these programs andlaw schools struggled to find soft money to fund their clinicalprograms. Inevitably, the effort to secure funding created conflictswithin the clinical community. During the Reagan Administration,Attorney General Edward Meese, proposed that federal funding forlegal services be diverted to law schools as a way of reducing oreliminating what was viewed as the social activism and left-wingagendas of some federally-funded legal services programs andback-up centers." Many law school clinicians joined their legalservices colleagues in opposing this move, arguing that law schoolclinical programs as teaching programs were, by design, inefficient andshould not be taking poor people's legal services funds away from themore efficient legal services programs."l Those of us who opposedtaking legal services money away from legal services programs inorder to support law school clinics argued that law schools should befinancing clinical programs, especially because so much of what goeson in clinics involves teaching. 3 In order to use clients' cases forteaching, we had to take smaller caseloads and spend more timeexamining, preparing, reflecting, and in other ways using clients' casesas teaching "texts."

9. See generally Gary Bellow, On Teaching the Teachers: Some PreliminaryReflections on Clinical Education As Methodology, in Clinical Education for the LawStudent 374 (Council on Legal Educ. Prof'l Dev. ed., 1973).

10. This is still the case in many law schools. See Peter Joy, ABA Site Visits:Everything You Ever Wanted to Know, at http://www.cleaweb.org/aba/index.html(last visited Oct. 17, 2004) (identifying status issues of clinicians as one of the areas toevaluate when conductine an ABA site insoection): see also Daphne Eviatar, ClinicalAnxiety, Rebellious Lawyers Are Shaking Up Law School, Legal Aff., Nov./Dec.,2002, at 37.

11. For an insightful analysis of the impact of funding cuts and restrictions on legalservices, see Raymond H. Brescia et al., Who's in Charge, Anyway? A Proposal forCommunity-Based Legal Services, 25 Fordham Urb. L.J. 831 (1998).

12. See Trubek, supra note 8, at 383, 388.13. Id. at 386-87.

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2004] TEACHING AND DOING 999

The development of law school clinics did not come about without resistance and internal conflict. From the outset tensions emerged between the public service goals of the first generation of clinical teachers and their funders, on the one hand, and the academic values of law school faculties on the otherY The faculties, to the extent they were not openly hostile to the introduction of experiential learning into the curriculum, as many were, were more concerned with the educational value of clinical programs than with the newly hired supervising attorneys' legal services and social justice motivations.

Clinicians were a different breed from their law professor counterparts. They were often housed in different spaces, not allowed to participate in faculty governance, and offered no job security. Indeed, many, if not most, clinicians had to raise funds to ensure their own job continuation. to Funding was scarce for these programs and law schools struggled to find soft money to fund their clinical programs. Inevitably, the effort to secure funding created conflicts within the clinical community. During the Reagan Administration, Attorney General Edward Meese, proposed that federal funding for legal services be diverted to law schools as a way of reducing or eliminating what was viewed as the social activism and left-wing agendas of some federally-funded legal services programs and back-up centersY Many law school clinicians joined their legal services colleagues in opposing this move, arguing that law school clinical programs as teaching programs were, by design, inefficient and should not be taking poor people's legal services funds away from the more efficient legal services programs.12 Those of us who opposed taking legal services money away from legal services programs in order to support law school clinics argued that law schools should be financing clinical programs, especially because so much of what goes on in clinics involves teaching.13 In order to use clients' cases for teaching, we had to take smaller caseloads and spend more time examining, preparing, reflecting, and in other ways using clients' cases as teaching "texts."

9. See generally Gary Bellow, On Teaching the Teachers: Some Preliminary Reflections on Clinical Education As Methodology, in Clinical Education for the Law Student 374 (Council on Legal Educ. Prof' I Dev. ed., 1973).

10. This is still the case in many law schools. See Peter Joy, ABA Site Visits: Everything You Ever Wanted to Know, at http://www.cleaweb.org/aba/index.html (last visited Oct. 17,2004) (identifying status issues of clinicians as one of the areas to evaluate when conducting an ABA site insoection): see also Daphne Eviatar. Clinical Anxiety, Rebellious Lawyers Are Shaking Up Law School, Legal Aft., Nov.lDec., 2002, at 37.

11. For an insightful analysis of the impact of funding cuts and restrictions on legal services, see Raymond H. Brescia et ai., Who's in Charge, Anyway? A Proposal for Community-Based Legal Services, 25 Fordham Urb. L.J. 831 (1998).

12. See Trubek, supra note 8, at 383, 388. 13. Id. at 386-87.

FORDHAM LAW REVIEW

Nevertheless, some law schools did apply for and receive federallegal services dollars to support their clinical programs." GaryBellow's decision to apply for and accept a substantial amount offederal legal services funding to support the Harvard clinical programwas, and continues to be, controversial.15 However, in all fairness toBellow, who was a true visionary and major force in both legalservices and clinical legal education, the Legal Services Center that hefounded in the Jamaica Plain neighborhood of Boston has been amajor provider of legal services to low-income clients, and has givenopportunities to hundreds of law students to engage in supervisedlegal services work for low-income clients.16

The controversy surrounding the Harvard program concerns notonly the acceptance of federal legal services funding in the beginning,but the design of the program itself.1 7 Supervising attorneys in theHarvard program have never traveled the path from "supervisingattorney" to "clinical professor." Their full-time job is supervisingstudents handling cases for clients. They are not expected to teachclasses, write articles, or participate in any of the institutionalactivities engaged in by members of the faculty. The faculty-GaryBellow until his untimely death, and Charles Ogletree, who directs theHarvard Criminal Justice Institute-do all of the "teaching." HarvardLaw School, a school with more than 1500 J.D. students, today hasonly one clinical faculty member, Charles Ogletree.18 But it also hasmany more supervising attorneys in its various clinical programs. 9

Harvard Law School provides a lot of legal services to low-incomeclients, far more than any other law school." Harvard has chosen, forwhatever reason, to construct its clinical program as a legal servicesprogram, and all of the supervision is performed by staff attorneys(who have been given the quasi-faculty title of "clinical instructors"). 21

It has created as efficient a legal services delivery program as possibleusing law students to do much of the work.22 In so doing, Harvard has

14. See, e.g., Trister v. Univ. of Miss., 420 F.2d 499, 500-01 (5th Cir. 1969); Blaze,supra note 4, at 952-53, 959 (recounting the history of law clinics at the University ofTennessee); Trubek, supra note 8, at 386 (explaining the Legal Services Corporation'sspecial program to fund law clinic programs).

15. See Harvard Law Sch., The Hale and Dorr Legal Services: Center History, athttp://www.law.harvard.edu/academics/clinical/lsc/history.htm (last visited Oct. 17,2004) [hereinafter Hale and Dorr].

16. Id.17. The controversv is not unioue to Harvard. See Report of the Committee on the

Future of the In-House Clinic, 42 J. Legal Educ. 508, 512-13 (1992).18. Harvard Law Sch., Harvard's Clinical Faculty, at

http://www.law.harvard.edu/academics/clinical/clinics.htm (last visited Oct. 17, 2004)[hereinafter Harvard's Clinical Faculty].

19. Id.20. See Hale and Dorr, supra note 15.21. Id.22. See id.

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1000 FORDHAM LA W REVIEW [Vol. 73

Nevertheless, some law schools did apply for and receive federal legal services dollars to support their clinical programs. 14 Gary Bellow's decision to apply for and accept a substantial amount of federal legal services funding to support the Harvard clinical program was, and continues to be, controversiaJ.15 However, in all fairness to Bellow, who was a true visionary and major force in both legal services and clinical legal education, the Legal Services Center that he founded in the Jamaica Plain neighborhood of Boston has been a major provider of legal services to low-income clients, and has given opportunities to hundreds of law students to engage in supervised legal services work for low-income clients.16

The controversy surrounding the Harvard program concerns not only the acceptance of federal legal services funding in the beginning, but the design of the program itself.17 Supervising attorneys in the Harvard program have never traveled the path from "supervising attorney" to "clinical professor." Their full-time job is supervising students handling cases for clients. They are not expected to teach classes, write articles, or participate in any of the institutional activities engaged in by members of the faculty. The faculty-Gary Bellow until his untimely death, and Charles Ogletree, who directs the Harvard Criminal Justice Institute-do all of the "teaching." Harvard Law School, a school with more than 1500 J.D. students, today has only one clinical faculty member, Charles Ogletree. IS But it also has many more supervising attorneys in its various clinical programs.19

Harvard Law School provides a lot of legal services to low-income clients, far more than any other law schoopo Harvard has chosen, for whatever reason, to construct its clinical program as a legal services program, and all of the supervision is performed by staff attorneys (who have been given the quasi-faculty title of "clinical instructors").21 It has created as efficient a legal services delivery program as possible using law students to do much of the work.22 In so doing, Harvard has

14. See, e.g., Trister v. Univ. of Miss., 420 F.2d 499, 500-01 (5th Cir. 1969); Blaze, supra note 4, at 952-53, 959 (recounting the history of law clinics at the University of Tennessee); Trubek, supra note 8, at 386 (explaining the Legal Services Corporation's special program to fund law clinic programs).

15. See Harvard Law Sch., The Hale and Dorr Legal Services: Center History, at http://www.law.harvard.edu/academics/clinicalllsC/history.htm (last visited Oct. 17, 2004) [hereinafter Hale and Dorr].

16. Id. 17. The controversy is not unique to Harvard. See Revort of the Committee on the

Future of the In-House Clinic, 42 J. Legal Educ. 508, 512-13 (1992). 18. Harvard Law Sch., Harvard's Clinical Faculty, at

hUp://www.law.harvard.edu/academics/clinicallclinics.htm (last visited Oct. 17, 2004) [hereinafter Harvard's Clinical Faculty].

19. Id. 20. See Hale and DOff, supra note 15. 21. Id. 22. See id.

TEACHING AND DOING

avoided, or evaded, the educational and political winds that haveswept through most law schools, primarily from the Association ofAmerican Law Schools ("AALS") and the American BarAssociation, which have resulted in the movement of clinical legaleducation from an adjunct role outside of the regular curriculum, tothe much more established and accepted role that clinics now play inlegal education.

By having only two clinical faculty members--one since GaryBellow died-Harvard is able to hire a large number of staff attorneysat considerably lower salaries than those paid to members of the lawschool faculty.23 Staff attorneys do not function on an academiccalendar, do not receive academic leaves, and do not enjoy the otherperquisites of law professors. 24 They supervise students representingclients .2 Harvard has embraced the provision of legal services to thepoor as the central focus of its clinical legal education program andthe primary way to meet the law school's obligation to address themaldistribution of legal services.26

Most clinicians today would not say that they are primarily in thebusiness of providing legal services to the poor as is done in theHarvard program.27 Thirty years have aged us. Thirty years havebrought us new challenges, such as being hired through the AALS"meat market, '28 meeting publication requirements, feeling pressure(and sometimes a guilty desire?) to teach nonclinical courses. We areon committees, we go to conferences to talk about our work, wepublish, we over-commit-we try to do it all. Within the clinicalcommunity there are tensions that our increased assimilation into thetraditional law school world has created for us. Our aspiration forfaculty status may have made us develop clinics driven by facultyinterests as much as, or even rather than, community need. The moreintegrated into the traditional law school we become, the more thesepressures arise. The fact that we have the possibility of job security(and good salaries) means that we do not have the steady turn over ofyoung, energetic lawyers who can be connected to the communities

23. See Harvard's Clinical Faculty, supra note 18.24. A description of staff attorneys' duties are included in Hale and Dorr, supra

note 15.25. Id.26. See id.27. See, e.g., Margaret Martin Barry, Accessing Justice: Are Pro Se Clinics a

Reasonable Response to the Lack of Pro Bono Legal Services and Should Law SchoolClinics Conduct Them?, 67 Fordham L. Rev. 1879, 1918 (1999); Richard A. Boswell,Keeping the Practice in Clinical Education and Scholarship, 43 Hastings L.J. 1187,1188 (1992).

28. See Am. Ass'n of Law Schs. Faculty Recruitment Servs., athttp://www.aals.org/FRS/index.html (last visited Oct. 27, 2004) (describing the processby which persons seeking entry-level teaching positions apply through a central hiringconference overseen by the AALS). This hiring conference is colloquially known asthe "meat market."

2004] 1001



avoided, or evaded, the educational and political winds that have swept through most law schools, primarily from the Association of American Law Schools ("AALS") and the American Bar Association, which have resulted in the movement of clinical legal education from an adjunct role outside of the regular curriculum, to the much more established and accepted role that clinics now play in legal education.

By having only two clinical faculty members-one since Gary Bellow died - Harvard is able to hire a large number of staff attorneys at considerably lower salaries than those paid to members of the law school faculty.23 Staff attorneys do not function on an academic calendar, do not receive academic leaves, and do not enjoy the other perquisites of law professors.24 They supervise students representing clients.25 Harvard has embraced the provision of legal services to the poor as the central focus of its clinical legal' education program and the primary way to meet the law school's obligation to address the maldistribution of legal services.26

Most clinicians today would not say that they are primarily in the business of providing legal services to the poor as is done in the Harvard programY Thirty years have aged us. Thirty years have brought us new challenges, such as being hired through the AALS "meat market,"28 meeting publication requirements, feeling pressure (and sometimes a guilty desire?) to teach nonclinical courses. We are on committees, we go to conferences to talk about our work, we publish, we over-commit-we try to do it all. Within the clinical community there are tensions that our increased assimilation into the traditional law school world has created for us. Our aspiration for faculty status may have made us develop clinics driven by faculty interests as much as, or even rather than, community need. The more integrated into the traditional law school we become, the more these pressures arise. The fact that we have the possibility of job security (and good salaries) means that we do not have the steady turn over of young, energetic lawyers who can be connected to the communities

23. See Harvard's Clinical Faculty, supra note 18. 24. A description of staff attorneys' duties are included in Hale and Dorr, supra

note 15. 25. [d. 26. See id. 27. See, e.g., Margaret Martin Barry, Accessing Justice: Are Pro Se Clinics a

Reasonable Response to the Lack of Pro Bono Legal Services and Should Law School Clinics Conduct Them?, 67 Fordham L. Rev. 1879, 1918 (1999); Richard A. Boswell, Keeping the Practice in Clinical Education and Scholarship, 43 Hastings L.J. 1187, 1188 (1992).

28. See Am. Ass'n of Law Schs. Faculty Recruitment Servs., at http://www.aals.orglFRS/index.html (last visited Oct. 27,2004) (describing the process by which persons seeking entry-level teaching positions apply through a central hiring conference overseen by the AALS). This hiring conference is colloquially known as the "meat market."

FORDHAM LAW REVIEW

we seek to serve. Our age alone, and the demands of family andacademic life, make retreating from direct client contact enticing. Thenine month academic calendar poses its own challenges: We planclinics that allow time to respond to all of these pressures (reducedcase loads, reduced faculty/student ratios, lots of simulation, hiringfellows or staff attorneys to do the case handling, choosing cases thatallow for writing), not because there is a need in the community.

It seems appropriate to express some skepticism about what wehave come to accept as "progress" in clinical legal education. Adiscussion of clinicians on the tenure track (by both clinical andnonclinical faculty) often leads to a discussion of the problem of"drift," that is, the problem that over time the person hired to be aclinician will gradually move away from the clinic in order to teachnonclinical courses. Perhaps we need to engage in a larger discussionabout whether clinical eaucation, itself, has drifted. In particular, inour three-decade professional advancement from "supervisingattorney" to "clinical professor," have we not moved too far awayfrom teaching through doing to teaching about doing? Have wecaused the justice mission of clinical education to take a back seat toprofessional advancement? Are we being succeeded by a new breedof clinicians with limited practice experience and expanded academicambitions? Are we beginning to look more like the law professors weknew in law school than the legal aid attorneys we think of ascomrades? Have we, in our struggle to become accepted as membersof law school faculties, compromised our identities as advocates forthe poor and unprivileged, as fighters for social justice? Have wesacrificed supervised student representation of disadvantaged clientsin favor of clinical pedagogy-classroom teaching, simulations, skillstraining, journal writing, and guided reflection? Have we alsoreplaced a significant part of it not only with clinical pedagogy, butalso with writing for publication, nonclinical teaching, law schoolcommittee work, and other professorial activities? Are we, and thestudents we teach, doing as much as we could--as much as weshould-to help alleviate the shortage of legal services for low-incomeclients? These tensions, unless resolved, have the potential of dilutingthe already meager contribution that clinical legal education makes toalleviating the crisis in access to justice.

Deborah Rhode has raised, once again, the challenge for lawschools to do better in socializing law students to make "access tojustice a more central social priority."29 At base, that requires us toevaluate the efficacy of our teaching methods. As law clinics havebegun to look more like traditional law courses, there has emerged agenuine debate among clinicians about how law students can best

29. Rhode, supra note 1, at 193.

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we seek to serve. Our age alone, and the demands of family and academic life, make retreating from direct client contact enticing. The nine month academic calendar poses its own challenges: We plan clinics that allow time to respond to all of these pressures (reduced case loads, reduced faculty/student ratios, lots of simulation, hiring fellows or staff attorneys to do the case handling, choosing cases that allow for writing), not because there is a need in the community.

It seems appropriate to express some skepticism about what we have come to accept as "progress" in clinical legal education. A discussion of clinicians on the tenure track (by both clinical and non clinical faculty) often leads to a discussion of the problem of "drift," that is, the problem that over time the person hired to be a clinician will gradually move away from the clinic in order to teach nonclinical courses. Perhaps we need to engage in a larger discussion about whether clinical eDucation, itself, has drifted. In particular, in our three-decade professional advancement from "supervising attorney" to "clinical professor," have we not moved too far away from teaching through doing to teaching about doing? Have we caused the justice mission of clinical education to take a back seat to professional advancement? Are we being succeeded by a new breed of clinicians with limited practice experience and expanded academic ambitions? Are we beginning to look more like the law professors we knew in law school than the legal aid attorneys we think of as comrades? Have we, in our struggle to become accepted as members of law school faculties, compromised our identities as advocates for the poor and unprivileged, as fighters for social justice? Have we sacrificed supervised student representation of disadvantaged clients in favor of clinical pedagogy-classroom teaching, simulations, skills training, journal writing, and guided reflection? Have we also replaced a significant part of it not only with clinical pedagogy, but also with writing for publication, nonclinical teaching, law school committee work, and other professorial activities? Are we, and the students we teach, doing as much as we could - as much as we should-to help alleviate the shortage of legal services for low-income clients? These tensions, unless resolved, have the potential of diluting the already meager contribution that clinical legal education makes to alleviating the crisis in access to justice.

Deborah Rhode has raised, once again, the challenge for law schools to do better in socializing law students to make "access to justice a more central social priority."29 At base, that requires us to evaluate the efficacy of our teaching methods. As law clinics have begun to look more like traditional law courses, there has emerged a genuine debate among clinicians about how law students can best


TEACHING AND DOING

learn from experience. 0 It is about whether students can only trulylearn what they need to learn about lawyering through the supervisedrepresentation of real clients, or whether that kind of experientiallearning needs to be prepared for, supplemented, and can even bereplaced by skills training through simulation, and aids to criticalreflection such as journals and classroom instruction.31 In essence, weare walking a tightrope and constantly having to deal with the tensionbetween teaching and doing.

When Steve Wizner, co-author of this Essay, was a legal serviceslawyer in the 1960s, he had law students working in his neighborhoodlegal services office, mostly as volunteers, and a few for credit. Theirrole was to assist him and the other lawyers in the program byperforming legal research, memo writing, and fact investigation. Hisbiggest adjustment when he became a supervising attorney in a lawschool clinical program in 1970 was to change his relationship to thelaw students with whom he was working. Rather than they helpinghim with his cases, he had to learn to hand over responsibility forrepresenting clients to them, and to provide assistance to them ontheir cases. In order to accomplish this redefinition of his role, he hadto learn to teach students how to relate to clients and to handle theircases, to supervise them as they did so, and to help them learn fromthat experience.

Steve found that it was not enough simply to provide students theopportunity to experience the real world through the representationof low-income clients. As a clinical teacher he needed to sensitize hisstudents to what they were seeing, guide them to a deeperunderstanding of their clients' lives and their relationship to the social,economic, and political forces that affected their lives, and helpstudents develop a critical consciousness imbued with a concern forsocial justice.32

As the students learned and became more competent, he soonrealized that having a crew of clinic students enabled him, throughthem, to represent more clients and handle more cases than he couldas a legal services lawyer, and to take on complex litigation that hecould not handle well on his own. Nevertheless, he found that he wasspending more time teaching students than he had when he firststarted out as a clinical instructor.

Over time, as he gradually transitioned from "supervising attorney"to "clinical professor," he found himself spending time teachingclasses, writing articles, serving on committees, attending conferences,and increasingly less time in direct supervision of students

30. See Margaret Martin Barry et al., Clinical Education for This Millennium: TheThird Wave, 7 Clin. L. Rev. 1 (2000).

31. See Boswell, supra note 27.32. Stephen Wizner, Beyond Skills Training, 7 Clin. L. Rev. 327, 338-39 (2001)

(discussing the role that clinics can play in teaching a concern for social justice).

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learn from experience.3o It is about whether students can only truly learn what they need to learn about lawyering through the supervised representation of real clients, or whether that kind of experiential learning needs to be prepared for, supplemented, and can even be replaced by skills training through simulation, and aids to critical reflection such as journals and classroom instruction,31 In essence, we are walking a tightrope and constantly having to deal with the tension between teaching and doing.

When Steve Wizner, co-author of this Essay, was a legal services lawyer in the 1960s, he had law students working in his neighborhood legal services office, mostly as volunteers, and a few for credit. Their role was to assist him and the other lawyers in the program by performing legal research, memo writing, and fact investigation. His biggest adjustment when he became a supervising attorney in a law school clinical program in 1970 was to change his relationship to the law students with whom he was working. Rather than they helping him with his cases, he had to learn to hand over responsibility for representing clients to them, and to provide assistance to them on their cases. In order to accomplish this redefinition of his role, he had to learn to teach students how to relate to clients and to handle their cases, to supervise them as they did so, and to help them learn from that experience.

Steve found that it was not enough simply to provide students the opportunity to experience the real world through the representation of low-income clients. As a clinical teacher he needed to sensitize his students to what they were seeing, guide them to a deeper understanding of their clients' lives and their relationship to the social, economic, and political forces that affected their lives, and help students develop a critical consciousness imbued with a concern for social justice.32

As the students learned and became more competent, he soon realized that having a crew of clinic students enabled him, through them, to represent more clients and handle more cases than he could as a legal services lawyer, and to take on complex litigation that he could not handle well on his own. Nevertheless, he found that he was spending more time teaching students than he had when he first started out as a clinical instructor.

Over time, as he gradually transitioned from "supervising attorney" to "clinical professor," he found himself spending time teaching classes, writing articles, serving on committees, attending conferences, and increasingly less time in direct supervision of students

30. See Margaret Martin Barry et aI., Clinical Education for This Millennium: The Third Wave, 7 Clin. L. Rev. 1 (2000).

31. See Boswell, supra note 27. 32. Stephen Wizner, Beyond Skills Training, 7 Clin. L. Rev. 327, 338-39 (2001)

(discussing the role that clinics can play in teaching a concern for social justice).

FORDHAM LAW REVIEW

representing clients. In the beginning he supervised twenty (or more)students. He spent hours and days accompanying students to courts,administrative agencies, prisons, mental hospitals, government offices,and other practice venues, and the rest of the time brainstorming withstudents about their cases, reviewing and editing pleadings, motions,legal memoranda, and correspondence, mooting students to preparethem for court appearances, and preparing students for negotiationsand trials. While he continues to do all of these things today, he findshimself supervising fewer students, representing fewer clients,handling fewer cases, and spending time that he used to devote tothose activities in the classroom teaching clinical and nonclinicalcourses, writing, and other "professorial" activities.

Jane Aiken, also a co-author of this Essay, was a communityorganizer in Washington, D.C. before entering law school and saw thelaw as merely another tool to bring to efforts to serve poorcommunities. She began her career in law not as a legal servicesattorney, but rather back in D.C. as a clinical teacher working in thecommunity. The provision of legal services was deeply tied to theeducational mission and the pedagogical method of "learning fromexperience." It was in that work that Jane watched her studentsbecome empowered, much like the community members she hadworked with to form tenant unions and shelters in her days as anorganizer.

In her clinical teaching Jane sought not only to provide service butalso to organize and inspire students to work for justice when they leftthe academy. In those early days, the clinic responded to whateverneed arose in the community. The need drove case selection, andeveryone (students and faculty alike) was expected to get up to speedon the law as quickly and efficiently as possible. Class discussionswere all about legal strategy. The students were the staff-bodies todo the work. Her job as the clinical teacher was to identify thegreatest underserved need in the community, design training materialsto ensure that the students could provide competent representation,participate in legislative and policy drafting, bring strategic classactions, and identify ways to leverage the prestige of the universitythrough her relationships with judges. As the tenure decision loomed,however, pressures to write and to teach nonclinical courses divertedJane's energy, took away from the creativity and comprehensivenessof the legal services work she was doing, and shifted her focus towardteaching and writing.

As we reflect on what has happened to us professionally sincebecoming law school clinical teachers, we realize that we spend a lotof time in our working day doing things that we would not do if wewere legal services lawyers assisted by law students. We teachsubstantive law and practice. We teach about systems andinstitutions. We spend hours with students, individually and in

[Vol. 731004



representing clients. In the beginning he supervised twenty (or more) students. He spent hours and days accompanying students to courts, administrative agencies, prisons, mental hospitals, government offices, and other practice venues, and the rest of the time brainstorming with students about their cases, reviewing and editing pleadings, motions, legal memoranda, and correspondence, mooting students to prepare them for court appearances, and preparing students for negotiations and trials. While he continues to do all of these things today, he finds himself supervising fewer students, representing fewer clients, handling fewer cases, and spending time that he used to devote to those activities in the classroom teaching clinical and nonclinical courses, writing, and other "professorial" activities.

Jane Aiken, also a co-author of this Essay, was a community organizer in Washington, D.C. before entering law school and saw the law as merely another tool to bring to efforts to serve poor communities. She began her career in law not as a legal services attorney, but rather back in D.C. as a clinical teacher working in the community. The provision of legal services was deeply tied to the educational mission and the pedagogical method of "learning from experience." It was in that work that Jane watched her students become empowered, much like the community members she had worked with to form tenant unions and shelters in her days as an organizer.

In her clinical teaching Jane sought not only to provide service but also to organize and inspire students to work for justice when they left the academy. In those early days, the clinic responded to whatever need arose in the community. The need drove case selection, and everyone (students and faculty alike) was expected to get up to speed on the law as quickly and efficiently as possible. Class discussions were all about legal strategy. The students were the staff-bodies to do the work. Her job as the clinical teacher was to identify the greatest underserved need in the community, design training materials to ensure that the students could provide competent representation, participate in legislative and policy drafting, bring strategic class actions, and identify ways to leverage the prestige of the university through her relationships with judges. As the tenure decision loomed, however, pressures to write and to teach nonclinical courses diverted Jane's energy, took away from the creativity and comprehensiveness of the legal services work she was doing, and shifted her focus toward teaching and writing.

As we reflect on what has happened to us professionally since becoming law school clinical teachers, we realize that we spend a lot of time in our working day doing things that we would not do if we were legal services lawyers assisted by law students. We teach substantive law and practice. We teach about systems and institutions. We spend hours with students, individually and in

TEACHING AND DOING

groups, in classes, supervisions, and less formal conversations, helpingthem understand what they are seeing in the "real world"; helpingthem recognize, acknowledge, and deal with their feelings about theirclients and their clients' legal problems; and talking about caseselection, analysis of client problems, ethical issues, and how to dealwith clients and adversaries effectively. We spend time mootingstudents in preparation for court appearances, administrativehearings, negotiations, and other client representational activities; andreading and editing their written work on behalf of clients. All ofthese time-consuming activities are what define us as clinical teachers.

There are many inefficiencies built into the design of most lawschool clinics that result in limiting the numbers of clients representedand cases handled by clinic faculty and students. These includeclasses, supervision, skills-training, simulations, journal writing (andreading), guided reflection, and other explicitly pedagogical activities.It may well be that the teaching and institutional citizenshipresponsibilities of clinical professors (including nonclinical teaching,committee work, and writing), the educational focus of clinicalcourses, and the many other claims on the time of clinical teachers andclinic students, make it unrealistic to expect law schools to play asignificant role in addressing the access to justice problem. Perhapsthe best contribution that law schools can make is to sensitize studentsto social justice issues through limited exposure to actual victims ofsocial injustice, and to inculcate in students the professional value ofservice to the underprivileged. But how much is that an abdication ofour social responsibility? How much is self-deception? Should notlaw school clinicians be striking a better balance between teaching anddoing? Do we need to think about returning to the root notion ofexperiential learning? Are we overemphasizing learning fromteaching at the expense of learning from doing? Should not the coreof our teaching be the doing, putting students in role representing realclients under supervision? Should we be de-emphasizing fictionalsimulation exercises and other forms of artificial skills training, andclassroom instruction? Do we spend too much time-our time andour students' time-on pedagogy not directly related to the real caseswe are handling?33

We wonder why we devote time to fictional simulations and skillstraining, when the lessons we seek to teach through these methodsmight be taught equally as well, and certainly more realistically, bydevoting that time to the preparation and handling of actual cases forreal clients. We wonder whether students and clinical teachers devote

33. See. e.x.. James E. Moliterno. In-House Live-Client Clinical Prozrams: SomeEthical Issues. 67 Fordham L. Rev. 2377, 2387 (1999). Professor Moliterno asks someof the same ouestions asked here: "Is there an inherent conflict between theeducational and the service missions of clinics? Can clinicians teach legal practiceand, simultaneously, be the practice about which they teach ... ?" Id. at 2378.

20041 1005



groups, in classes, supervisions, and less formal conversations, helping them understand what they are seeing in the "real world"; helping them recognize, acknowledge, and deal with their feelings about their clients and their clients' legal problems; and talking about case selection, analysis of client problems, ethical issues, and how to deal with clients and adversaries effectively. We spend time mooting students in preparation for court appearances, administrative hearings, negotiations, and other client representational activities; and reading and editing their written work on behalf of clients. All of these time-consuming activities are what define us as clinical teachers.

There are many inefficiencies built into the design of most law school clinics that result in limiting the numbers of clients represented and cases handled by clinic faculty and students. These include classes, supervision, skills-training, simulations, journal writing (and reading), guided reflection, and other explicitly pedagogical activities. It may well be that the teaching and institutional citizenship responsibilities of clinical professors (including nonclinical teaching, committee work, and writing), the educational focus of clinical courses, and the many other claims on the time of clinical teachers and clinic students, make it unrealistic to expect law schools to play a significant role in addressing the access to justice problem. Perhaps the best contribution that law schools can make is to sensitize students to social justice issues through limited exposure to actual victims of social injustice, and to inculcate in students the professional value of service to the underprivileged. But how much is that an abdication of our social responsibility? How much is self-deception? Should not law school clinicians be striking a better balance between teaching and doing? Do we need to think about returning to the root notion of experiential learning? Are we overemphasizing learning from teaching at the expense of learning from doing? Should not the core of our teaching be the doing, putting students in role representing real clients under supervision? Should we be de-emphasizing fictional simulation exercises and other forms of artificial skills training, and classroom instruction? Do we spend too much time-our time and our students' time-on pedagogy not directly related to the real cases we are handling?33

We wonder why we devote time to fictional simulations and skills training, when the lessons we seek to teach through these methods might be taught equally as well, and certainly more realistically, by devoting that time to the preparation and handling of actual cases for real clients. We wonder whether students and clinical teachers devote

33. See, e.ll .. James E. Molitemo. In-House Live-Client Clinical Prollrams: Some Ethical Issues. 67 Fordham L. Rev. 2377. 2387 (1999). Professor Molitemo asks some of the same auestions asked here: "Is there an inherent conflict between the educational and the service missions of clinics? Can clinicians teach legal practice and, simultaneously, be the practice about which they teach ... ?" Id. at 2378.

FORDHAM LAW REVIEW

time to student journals and to engaging in guided reflection abouthow students and clients experience their personal interactions, at theexpense of actually representing clients and handling cases. Wewonder whether law school clinics could not increase the provision oflegal services they provide to low-income clients and communitieswithout impairing, and perhaps even enhancing, students' educationalexperience. We wonder whether law school clinics should notincrease students' learning through doing, and decrease the time andeffort they devote to learning about doing.

Unless we design our clinics to immerse students in the delivery oflegal services to clients, we teach them too little about legal serviceswork, underexpose them to the real world of low-income clients, missopportunities to engage students in seeking fundamental changethrough class actions, and thus fail to meet the law school's obligationto make a meaningful contribution to addressing the access to justiceproblem.

One solution to this problem might be to return to our roots, tothink of clinical legal education programs primarily as legal servicesproviders. Providing and facilitating access to justice for unprivilegedand underserved clients and communities would be the primary focusof both our teaching and our doing. This would require law schoolclinicians to re-focus their efforts on the provision of legal assistanceto unprivileged and underserved clients and communities throughsupervised law student representation. Everything else that cliniciansdid would be seen as a secondary objective, and, to the extentpossible, would support the primary objective. When they employedsimulation, to the extent possible it would be in the form of mootingstudents for actual representational events on behalf of real clients.When clinicians wrote, it would be writing that was intended toadvance the project, that is, to assist students in their representation ofclients, assist teachers in their clinical teaching, explain to thenonclinical world what clinical programs are doing in order to gainsupport for the work, use their unique knowledge gained frompractice to propose and advocate reforms in the law, and analyze therelationship-and tension-between advocacy for clients and socialpolicy.

Under this approach, when clinicians teach nonclinical courses, thecourses should relate to and support the clinical teaching. This meansthat clinicians should teach Trial Advocacy, Evidence, andProfessional Responsibility, but not Torts or Contracts. When theyengage in activities of institutional citizenship, such as serving onfaculty committees, they should consider them as opportunities forencouraging their law schools to commit financial and intellectualresources to addressing the maldistribution of legal services throughsupport of clinical programs, and teaching, research, and writing

[Vol. 731006



time to student journals and to engaging in guided reflection about how students and clients experience their personal interactions, at the expense of actually representing clients and handling cases. We wonder whether law school clinics could not increase the provision of legal services they provide to low-income clients and communities without impairing, and perhaps even enhancing, students' educational experience. We wonder whether law school clinics should not increase students' learning through doing, and decrease the time and effort they devote to learning about doing.

Unless we design our clinics to immerse students in the delivery of legal services to clients, we teach them too little about legal services work, underexpose them to the real world of low-income clients, miss opportunities to engage students in seeking fundamental change through class actions, and thus fail to meet the law school's obligation to make a meaningful contribution to addressing the access to justice problem.

One solution to this problem might be to return to our roots, to think of clinical legal education programs primarily as legal services providers. Providing and facilitating access to justice for unprivileged and underserved clients and communities would be the primary focus of both our teaching and our doing. This would require law school clinicians to re-focus their efforts on the provision of legal assistance to unprivileged and underserved clients and communities through supervised law student representation. Everything else that clinicians did would be seen as a secondary objective, and, to the extent possible, would support the primary objective. When they employed simulation, to the extent possible it would be in the form of mooting students for actual representational events on behalf of real clients. When clinicians wrote, it would be writing that was intended to advance the project, that is, to assist students in their representation of clients, assist teachers in their clinical teaching, explain to the nonclinical world what clinical programs are doing in order to gain support for the work, use their unique knowledge gained from practice to propose and advocate reforms in the law, and analyze the relationship - and tension - between advocacy for clients and social policy.

Under this approach, when clinicians teach non clinical courses, the courses should relate to and support the clinical teaching. This means that clinicians should teach Trial Advocacy, Evidence, and Professional Responsibility, but not Torts or Contracts. When they engage in activities of institutional citizenship, such as serving on faculty committees, they should consider them as opportunities for encouraging their law schools to commit financial and intellectual resources to addressing the maldistribution of legal services through support of clinical programs, and teaching, research, and writing

TEACHING AND DOING

directed toward the amelioration of the crisis in access to justice.34

When clinicians engage in bar activities, clinicians should encouragethe bar to assist in carrying out the social justice mission of clinicallegal education.

An alternative solution might be to abandon any pretense of thelaw school clinics as legal services providers.35 In this view of clinicallegal education, it is not about providing more legal services tounderserved clients or using the academy to bring legal action seekingsystemic change. That is important-but far less important than it wastwenty or thirty years ago. It is not that clinicians are forsaking theirroots as they are transformed into academics. Rather, the goals havechanged since those early days-and maybe these goals have changedfor positive reasons, not because of the pressures to become"academics." '36 Why should clients serve as guinea pigs for studentswho, if permitted to take primary responsibility, may provide inferiorlegal services?37 What is the virtue of treating clients as fodder forvoyeuristic analysis? Why require clients to establish newattorney/client relationships with different students, semester-to-semester? Does not this semester-to-semester approach hinder thedevelopment of an effective strategy in impact cases? Perhaps clinicaleducation is just another teaching vehicle. This vehicle relies on doingas its pedagogical method, but doing can be quite limited and stillallow for the kind of learning that clinicians hope to impart.38 If clinicstake on too many cases, they risk students becoming overwhelmed,lost, and disinclined to do these cases in their practices later. It mayalso reinforce students' cultural stereotypes about the poor that gounchallenged because of caseload pressures. We may leave ourstudents with the notion that they are powerless to make change aslawyers as they encounter, day after day, case after case, poor peopleignored, or mistreated, by the legal system. On the other hand, as webecome more integrated into the law school and more effective asteachers, we can embrace that role, we can write and reflect moreabout issues important to the community.39 We can communicate thatproviding legal services to the underserved is important becauseclinical courses are on the same footing as nonclinical courses. We

34. See Boswell, supra note 27, at 1192.35. See Ralph S. Tyler & Robert S. Catz, The Contradictions of Clinical Legal

Education, 29 Clev. St. L. Rev. 693, 709 (1980).36. See Linda F. Smith, Why Clinical Programs Should Embrace Civic

Engagements, Service Learning and Community Based Research, 10 Clin. L. Rev. 723(2004).

37. But see Steven Zeidman, Sacrificial Lambs or Chosen Few?: The Impact ofStudent Defenders on the Rights of the Accused, 62 Brook. L. Rev. 853 (1996).

38. See Barbara Bezdek, Reconstructing a Pedagogy of Responsibility, 43 HastingsL.J. 1159 (1992).

39. See Frank S. Bloch, Framing the Clinical Experience: Lessons on TurningPoints and the Dynamics of Lawyering, 64 Tenn. L. Rev. 989 (1997).

2004] 1007



directed toward the amelioration of the crisis in access to justice.34

When clinicians engage in bar activities, clinicians should encourage the bar to assist in carrying out the social justice mission of clinical legal education.

An alternative solution might be to abandon any pretense of the law school clinics as legal services providers.35 In this view of clinical legal education, it is not about providing more legal services to underserved clients or using the academy to bring legal action seeking systemic change. That is important - but far less important than it was twenty or thirty years ago. It is not that clinicians are forsaking their roots as they are transformed into academics. Rather, the goals have changed since those early days-and maybe these goals have changed for positive reasons, not because of the pressures to become "academics."36 Why should clients serve as guinea pigs for students who, if permitted to take primary responsibility, may provide inferior legal services?37 What is the virtue of treating clients as fodder for voyeuristic analysis? Why require clients to establish new attorney/client relationships with different students, semester-tosemester? Does not this semester-to-semester approach hinder the development of an effective strategy in impact cases? Perhaps clinical education is just another teaching vehicle. This vehicle relies on doing as its pedagogical method, but doing can be quite limited and still allow for the kind of learning that clinicians hope to impart.38 If clinics take on too many cases, they risk students becoming overwhelmed, lost, and disinclined to do these cases in their practices later. It may also reinforce students' cultural stereotypes about the poor that go unchallenged because of caseload pressures. We may leave our students with the notion that they are powerless to make change as lawyers as they encounter, day after day, case after case, poor people ignored, or mistreated, by the legal system. On the other hand, as we become more integrated into the law school and more effective as teachers, we can embrace that role, we can write and reflect more about issues important to the community.39 We can communicate that providing legal services to the underserved is important because clinical courses are on the same footing as nonclinical courses. We

34. See Boswell, supra note 27, at 1192. 35. See Ralph S. Tyler & Robert S. Catz, The Contradictions of Clinical Legal

Education, 29 Clev. St. L. Rev. 693,709 (1980). 36. See Linda F. Smith, Why Clinical Programs Should Embrace Civic

Engagements, Service Learning and Community Based Research, 10 Clin. L. Rev. 723 (2004).

37. But see Steven Zeidman, Sacrificial Lambs or Chosen Few?: The Impact of Student Defenders on the Rights of the Accused, 62 Brook. L. Rev. 853 (1996).

38. See Barbara Bezdek, Reconstructing a Pedagogy of Responsibility, 43 Hastings L.J. 1159 (1992).

39. See Frank S. Bloch, Framing the Clinical Experience: Lessons on Turning Points and the Dynamics of Lawyering, 64 Tenn. L. Rev. 989 (1997).

FORDHAM LAW REVIEW

can encourage participation in clinics in our nonclinical classes.Indeed, instead of only teaching traditional skills and values courses,we could strive to teach courses in which we are likely to reach theleast clinically inclined students.

As we look toward the future, how do we choose between these twovery different paths? The key, we believe, is not to choose. We mustresist those pressures that make teaching and doing mutually exclusiveor we will lose the soul of clinical education. It is through doing thatstudents open themselves to the real learning about social justice. It isthrough teaching that we help our students appreciate the broaderlessons about power and privilege, about their role in bringing aboutor inhibiting social justice. It is the sense of responsibility that theyfeel, the fear, the vulnerability when representing real clients, thatinspires students to strive to be effective lawyers with excellent skills.4"Unlike in simulations, in real cases things can be unpredictable, thingscan go wrong, and those wrongs can have real-life consequences whenthe client is a human being, not a fictional party in a simulation.Unlike second chairing, having direct responsibility for cases meansthat students must establish independent relationships with clients,must think ahead, and must shoulder the responsibility for the choicesthey make. We cannot afford to lose those lessons by taking the realclients out of the mix.41 At the same time, we cannot assume thatthose lessons will be learned from that intense experience alone. Weneed to be there when our students make that connection, because itis then that we can help them reflect on the experience and hone theirskills and examine their values. It is a trade-off we should be willingto tolerate. It is not enough to provide students the experience.42 We

40. See Abbe Smith, Rosie O'Neill Goes to Law School: The Clinical Education ofthe Sensitive New Age Public Defender, 28 Harv. C.R.-C.L. L. Rev. 1 (1993).

41. We recognize that not all law school clinics are organized as legal services orpublic defender projects, where students provide supervised legal representation toindividual clients. Clinics that do impact, social change, and law reform litigation;international human rights clinics and some environmental clinics that collaboratewith nongovernmental organizations which set the advocacy agenda; and legislativeadvocacy clinics, do not have "clients" in the sense in which we use that term in thisEssay. Nevertheless, the intended beneficiaries of their advocacy do constitute"client" populations on whose behalf these clinics do their legal work. See Deena R.Hurwitz, Lawyering for Justice and the Inevitability of International Human RightsClinics, 28 Yale J. Int'l L. 505 (2003). These clinics can be an effective way to enhanceaccess to justice for the poor by employing the legal system on behalf of largenumbers of low-income individuals. The risk of this type of clinic, however, is that itis lawyer-driven (or nongovernmental organization-driven) rather than client-driven,and therefore may convey to students the wrong message about the correctmotivation for doing the work, which is to use the legal system to struggle for socialjustice for the poor, not to empower lawyers to determine in the abstract what is inthe public interest.

42. We do not mean to deny the value to students of the experience of beingexposed to clients and to what lawyers do to address clients' legal problems.Certainly students learn from the experience itself, even from simply observing, andeven more from participating, whether assisting lawyers or doing the work themselves

(Vol. 731008


1008 FORDHAM LA W REVIEW [Vol. 73

can encourage participation in clinics in our nonclinical classes. Indeed, instead of only teaching traditional skills and values courses, we could strive to teach courses in which we are likely to reach the least clinically inclined students.

As we look toward the future, how do we choose between these two very different paths? The key, we believe, is not to choose. We must resist those pressures that make teaching and doing mutually exclusive or we will lose the soul of clinical education. It is through doing that students open themselves to the real learning about social justice. It is through teaching that we help our students appreciate the broader lessons about power and privilege, about their role in bringing about or inhibiting social justice. It is the sense of responsibility that they feel, the fear, the vulnerability when representing real clients, that inspires students to strive to be effective lawyers with excellent skiIls.40 Unlike in simulations, in real cases things can be unpredictable, things can go wrong, and those wrongs can have real-life consequences when the client is a human being, not a fictional party in a simulation. Unlike second chairing, having direct responsibility for cases means that students must establish independent relationships with clients, must think ahead, and must shoulder the responsibility for the choices they make. We cannot afford to lose those lessons by taking the real clients out of the mix.41 At the same time, we cannot assume that those lessons will be learned from that intense experience alone. We need to be there when our students make that connection, because it is then that we can help them reflect on the experience and hone their skills and examine their values. It is a trade-off we should be willing to tolerate. It is not enough to provide students the experience.42 We

40. See Abbe Smith, Rosie O'Neill Goes to Law School: The Clinical Education of the Sensitive New Age Public Defender, 28 Harv. c.R.-c.L. L. Rev. 1 (1993).

41. We recognize that not all law school clinics are organized as legal services or public defender projects, where students provide supervised legal representation to individual clients. Clinics that do impact, social change, and law reform litigation; international human rights clinics and some environmental clinics that collaborate with nongovernmental organizations which set the advocacy agenda; and legislative advocacy clinics, do not have "clients" in the sense in which we use that term in this Essay. Nevertheless, the intended beneficiaries of their advocacy do constitute "client" popUlations on whose behalf these clinics do their legal work. See Deena R. Hurwitz, Lawyering for Justice and the Inevitability of International Human Rights Clinics, 28 Yale J. Int'l L. 505 (2003). These clinics can be an effective way to enhance access to justice for the poor by employing the legal system on behalf of large numbers of low-income individuals. The risk of this type of clinic, however, is that it is lawyer-driven (or nongovernmental organization-driven) rather than client-driven, and therefore may convey to students the wrong message about the correct motivation for doing the work, which is to use the legal system to struggle for social justice for the poor, not to empower lawyers to determine in the abstract what is in the public interest.

42. We do not mean to deny the value to students of the experience of being exposed to clients and to what lawyers do to address clients' legal problems. Certainly students learn from the experience itself, even from simply observing, and even more from participating, whether assisting lawyers or doing the work themselves

TEACHING AND DOING

need to help them reflect on that experience, to learn the largerlessons. We do not want our students just to learn how to handle adomestic violence case; we want them to reflect on how the justicesystem responds, or fails to respond, to domestic violence. We wantthem to understand that being hit is only one of many issues in ourclients' lives. We want them to think about the use of violence as ameans of control. In fact, if we don't encourage them to reflect, wemay reinforce the very structure that has led to the violence. We donot just want our students to draft effective deposition questions intheir class action. We want them to reflect on how individual acts andattitudes result in policies, procedures, and behaviors that offend theConstitution. This kind of guided reflection and supervision takesskill: teaching skill. It is not what we expect of legal service attorneys.It is expected of law professors.

If we simply expose our students to injustice without addressing itexplicitly, we are complicit in their desensitization, and fail in carryingout our responsibilities as teachers. We may even become a part ofthe problem because it is not possible to be a neutral observer ofinjustice. We want to leave our students with the sense that they canmake change. If we are going to do that, we necessarily will behandling fewer cases. Steve Wizner says that we need to "nurturestudents' capacity for moral indignation at injustice in the world."43

That takes time and it takes skill-not lawyering skill but teachingskill. And, as Jane Aiken stresses:

If all I can do... is to teach students skills ungrounded in a sense ofjustice then at best there is no meaning to my work, and, at worst, Iam contributing to the distress in the world. I am sending morepeople into the community armed with legal training but without asense of responsibility for others or for the delivery of justice in oursociety. 44

Finding the synthesis between teaching and doing is not withoutsignificant challenges.45 We still have to look at ourselves and answerthe question, are we doing this because it is more convenient for us orbecause it is effective? In our clinics, are we serving clients or are theyserving us? Have we chosen cases that will maximize our students'learning? Have we built into our schedules sufficient time to reflectwith each student personally? Have we honed our teaching skills so

under the supervision of lawyers. Our point is that experience alone is not enough toassure that students learn all that they should learn from the experience, and toinculcate in them the professional value of public service and the professionalresponsibility to assist those who are not able to afford legal representation.

43. Wizner, supra note 32, at 330.44. Jane Harris Aiken, Striving to "Teach Justice, Fairness, and Morality," 4 Clin.

L. Rev. 1, 6 n.10 (1997).45. See, e.g., Mark Spiegel, Theory and Practice in Legal Education: An Essay on

Clinical Education, 34 UCLA L. Rev. 577 (1987).

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need to help them reflect on that experience, to learn the larger lessons. We do not want our students just to learn how to handle a domestic violence case; we want them to reflect on how the justice system responds, or fails to respond, to domestic violence. We want them to understand that being hit is only one of many issues in our clients' lives. We want them to think about the use of violence as a means of control. In fact, if we don't encourage them to reflect, we may reinforce the very structure that has led to the violence. We do not just want our students to draft effective deposition questions in their class action. We want them to reflect on how individual acts and attitudes result in policies, procedures, and behaviors that offend the Constitution. This kind of guided reflection and supervision takes skill: teaching skill. It is not what we expect of legal service attorneys. It is expected of law professors.

If we simply expose our students to injustice without addressing it explicitly, we are complicit in their desensitization, and fail in carrying out our responsibilities as teachers. We may even become a part of the problem because it is not possible to be a neutral observer of injustice. We want to leave our students with the sense that they can make change. If we are going to do that, we necessarily will be handling fewer cases. Steve Wizner says that we need to "nurture students' capacity for moral indignation at injustice in the world."43 That takes time and it takes skill- not lawyering skill but teaching skill. And, as Jane Aiken stresses:

If all I can do ... is to teach students skills ungrounded in a sense of justice then at best there is no meaning to my work, and, at worst, I am contributing to the distress in the world. I am sending more people into the community armed with legal training but without a sense of responsibility for others or for the delivery of justice in our society.44

Finding the synthesis between teaching and doing is not without significant challenges.45 We still have to look at ourselves and answer the question, are we doing this because it is more convenient for us or because it is effective? In our clinics, are we serving clients or are they serving us? Have we chosen cases that will maximize our students' learning? Have we built into our schedules sufficient time to reflect with each student personally? Have we honed our teaching skills so

under the supervision of lawyers. Our point is that experience alone is not enough to assure that students learn all that they should learn from the experience, and to inculcate in them the professional value of public service and the professional responsibility to assist those who are not able to afford legal representation.

43. Wizner, supra note 32, at 330. 44. Jane Harris Aiken, Striving to "Teach Justice, Fairness, and Morality," 4 Clin.

L. Rev. 1,6 n.lO (1997). 45. See, e.g., Mark Spiegel, Theory and Practice in Legal Education: An Essay on

Clinical Education, 34 UCLA L. Rev. 577 (1987).

FORDHAM LAW REVIEW

as to bring the justice mission into our clinical teaching? Are wemaking the best use of our privileged positions in the academy tochallenge practices that the practicing bar is not in a position to do?Are we filling gaps where public funding has failed clients? Are webringing our newfound status as law professors to the decision makingtable in public policy? Are we creating scholarship that redefines theidea of justice? 6 When we look ahead to the next three decades ofclinical legal education, where do we see ourselves going and are wesatisfied with that?

Clinical education today creates opportunities for law students torecognize the injustices in society and in the legal system, toappreciate the role they can play in challenging social injustice and inreforming the legal system, to make society and the legal system morejust, and to inspire them to do just that. If we do that well, clinicallegal education will have an even greater impact on promoting socialjustice than if we handle more cases. And to do that, we must all beboth effective teachers and effective doers.

Deborah Rhode has asked us to take a hard look at the law schools'failure to promote access to justice as a value for their graduates.47

Clinical education has not delivered the magic that would transformlaw schools into breeding grounds for lawyers dedicated to justice. Aswe look toward the future, a future that forebodes increasing disparitybetween rich and poor and diminishing numbers of lawyersadvocating on behalf of the poor and oppressed, access to justicebecomes more necessary but also more elusive. Law schools will notbe the answer to this problem. However, within the law school, it isthe clinics that offer the most promise. We have become moresophisticated in our understanding of what it takes to produce socialjustice practitioners. We have learned that it requires both doing andteaching, and that the teaching is no less important than the doing.This is because, just as teaching divorced from doing fails to exposestudents to the realities of individual and social injustice in society, sotoo, doing without teaching risks training students in the skills oflawyering without inculcating in them the professional values of publicservice and the pursuit of justice for the unprivileged.

The balance between teaching and doing has shifted during thethree decades since the birth of modern clinical education. In manycontemporary law school clinical programs students are representingfewer clients, and spending more time engaging in forms of clinical

46. See Robert D. Dinerstein, Clinical Scholarship and the Justice Mission, 40Clev. St. L. Rev. 469 (1992); Mark V. Tushnet, Scenes from the MetropolitanUnderground: A Critical Perspective on the Status of Clinical Education, 52 Geo.Wash. L. Rev. 272 (1984).


1010 [Vol. 73



as to bring the justice mission into our clinical teaching? Are we making the best use of our privileged positions in the academy to challenge practices that the practicing bar is not in a position to do? Are we filling gaps where public funding has failed clients? Are we bringing our newfound status as law professors to the decision making table in public policy? Are we creating scholarship that redefines the idea of justice?46 When we look ahead to the next three decades of clinical legal education, where do we see ourselves going and are we satisfied with that?

Clinical education today creates opportunities for law students to recognize the injustices in society and in the legal system, to appreciate the role they can play in challenging social injustice and in reforming the legal system, to make society and the legal system more just, and to inspire them to do just that. If we do that well, clinical legal education will have an even greater impact on promoting social justice than if we handle more cases. And to do that, we must all be both effective teachers and effective doers.

Deborah Rhode has asked us to take a hard look at the law schools' failure to promote access to justice as a value for their graduates.47

Clinical education has not delivered the magic that would transform law schools into breeding grounds for lawyers dedicated to justice. As we look toward the future, a future that forebodes increasing disparity between rich and poor and diminishing numbers of lawyers advocating on behalf of the poor and oppressed, access to justice becomes more necessary but also more elusive. Law schools will not be the answer to this problem. However, within the law school, it is the clinics that offer the most promise. We have become more sophisticated in our understanding of what it takes to produce social justice practitioners. We have learned that it requires both doing and teaching, and that the teaching is no less important than the doing. This is because, just as teaching divorced from doing fails to expose students to the realities of individual and social injustice in society, so too, doing without teaching risks training students in the skills of lawyering without inculcating in them the professional values of public service and the pursuit of justice for the unprivileged.

The balance between teaching and doing has shifted during the three decades since the birth of modern clinical education. In many contemporary law school clinical programs students are representing fewer clients, and spending more time engaging in forms of clinical

46. See Robert D. Dinerstein, Clinical Scholarship and the Justice Mission, 40 Clev. St. L. Rev. 469 (1992); Mark V. Tushnet, Scenes from the Metropolitan Underground: A Critical Perspective on the Status of Clinical Education, 52 Geo. Wash. L. Rev. 272 (1984).


TEACHING AND DOING

pedagogy that teach them about the representation of clients.48 To theextent that this has resulted in a lessening of the clinics' directcontribution to enhancing access to justice for the poor, there needs tobe a justification beyond that of the increasing academicprofessionalization of the clinical professoriate.

While clinicians must maintain the focus of their teaching on thesupervised representation of low-income clients by their students, theyalso must recognize that there is more to the project of enhancingaccess to justice than simply offering law students the opportunity tolearn lawyering skills by representing low-income clients orcollaborating in impact litigation. In order to increase the number oflaw school graduates who embrace a professional responsibility toassure access to justice for the poor, clinicians must strive to inculcatein their students an understanding and compassionate concern for theplight of people living in poverty, and a sense of professionalresponsibility for increasing their access to justice.

48. See Stephen F. Befort, Musings on a Clinic Report: A Selective Agenda forClinical Legal Education in the 1990s, 75 Minn. L. Rev. 619 (1991).

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pedagogy that teach them about the representation of clients.48 To the extent that this has resulted in a lessening of the clinics' direct contribution to enhancing access to justice for the poor, there needs to be a justification beyond that of the increasing academic professionalization of the clinical professoriate.

While clinicians must maintain the focus of their teaching on the supervised representation of low-income clients by their students, they also must recognize that there is more to the project of enhancing access to justice than simply offering law students the opportunity to learn lawyering skills by representing low-income clients or collaborating in impact litigation. In order to increase the number of law school graduates who embrace a professional responsibility to assure access to justice for the poor, clinicians must strive to inculcate in their students an understanding and compassionate concern for the plight of people living in poverty, and a sense of professional responsibility for increasing their access to justice.

48. See Stephen F. Befort, Musings on a Clinic Report: A Selective Agenda for Clinical Legal Education in the 1990s, 75 Minn. L. Rev. 619 (1991).

teaching and doing: the role of law school clinics in

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