Clinical Legal Education, Theory and Practice

Legal education, at least in the Anglosphere, has been undergoing a quiet but very recognisable transformation. The case study method, developed by Christopher Columbus Langdell at Harvard in the 1870s, is steadily giving way to ‘authentic’, ‘real life’ or ‘experiential’ learning, wherein theory and practice are intermeshed. Law is now often studied ‘in context’ (consequences, remedies, and enforcement are discussed); the gap between ‘law in theory’ and ‘law in action’ is investigated; and the ‘theory of the practice’ is incorporated into the curriculum.

Clinical legal education (CLE) takes this pedagogical approach to its logical conclusion. In CLE, law students learn through the practical application of law by providing legal services to the public and by reflecting on this experience to develop their understanding of law and legal theory. In light of the above, it is unsurprising that CLE has seen a rapid growth in the UK in the past decade. In addition to the aforementioned pedagogical shift, another driving force for this growth has been the hollowing out of public services by years of austerity politics, manifested in significant cuts in the provision of free legal services, both from the voluntary sector and from private law firms with legal contracts. These two factors combined to create a growing demand from the general public for free legal services and a growing demand from law students for some practical experience to form part of their law studies. This expansion in university law clinics has also seen a gradual move away from the law clinic inhabiting a small extra-curricular space populated by a handful of keen volunteers to larger, permanently staffed spaces where the clinic is incorporated into the curriculum, forming an assessed and credit bearing part of both undergraduate and postgraduate law programmes.

Clinical legal education is now very much a part of the twenty-first century legal education landscape, with an estimated 80% of law schools in the UK offering some form of provision. Against this background, it is somewhat surprising that there are very few textbooks available for students. It seems likely that one reason for this is that each university law clinic is unique in its offering and there is no common substantive law uniting them. A law clinic may provide advice services in one or more of the following: family law, housing, employment, criminal law, welfare benefits, special educational needs, small businesses, immigration and asylum, small claims disputes. Those services may be supervised by law school staff or by external agencies working in partnership. When you come to consider the incredible variety of models of delivery along with the range of legal topics needed, the lack of standard core textbooks becomes less surprising, as it is hard to imagine how one book might serve quite so many needs.

In addition to the incredible range of substantive law that can be found in university law clinics, the rationale for and underpinning values of law clinics are highly contested. Is the university law clinic a vehicle for developing deep critical thinking about values, power and justice in an unjust world, a vehicle for developing employability skills for budding lawyers, a way for law schools to help meet the legal needs of local communities, or can it be all of the above?

Undaunted by this landscape, we decided to rise to the challenge of creating a text that unites the theory and the practice of clinical legal education—and in doing so set out our own vision of what clinical legal education is and can be. We seek to champion a vision of clinical legal education that is radical and transformative for students and the communities they serve whilst also positioning ourselves on the side of promoting social justice through legal practice.

We explore the ways in which experiential learning can enrich the student experience, not only by developing key employability skills but also by creating a space in which theory can be applied and become meaningful.

Our proposition is that there are 6 features to clinical legal education:

1. Active participation: this is the defining feature, and thus the foundation of clinical legal education. There is no room in a clinic for students to passively absorb knowledge handed to them by a lecturer. They are active participants in their own learning experience.
   
2. Interaction in role: students play an active part in interviewing, advising, or otherwise working for a client by adopting a professional role.[CA3]  By taking on such a role, students learn how to interact with others as they would in legal practice.
   
3. The dynamic nature of the problem: in legal education, we often design neatly packaged problems for students that will draw out their knowledge and understanding of a particular point of law or practice. In clinical legal education, the problem cannot be packaged, and the solution may not be clear, which pushes the students to think creatively to apply their skills and knowledge.
   
4. Part of a planned curriculum: this does not necessarily mean that the clinic needs to form part of an assessed programme, but to move from beyond experience to education, a clear learning goal needs to be identified for students and educators. Education requires theorising, extrapolating experiences, conceptualising and framing them, understanding them as part of a general structure, and trying again on the basis of that understanding.
   
5. Reflection: learning how to reflect allows students to make sense of their experience and learn from that experience.
   
6. Access to justice: this feature is present in many, but not all, clinics. Teaching students about access to justice is central to our own approaches to clinical education and is therefore also central to the book.

We live in very uncertain times, and our students come to us anxious about jobs and their futures. Many of our universities in the UK are located in cities and regions where poverty, inequality, and injustice are part of the everyday landscape. Law students are hoping to enter a world of work that is changing so fast that neither practicing lawyers nor legal academics have a clear picture of what that world will look like. It is tempting, therefore, for the legal academy to collectively put our heads down and carry on with what we have always done: give lectures, teach the black letter law, expect students to read books and judgments and sit exams at the end of the year. We hope that this book and our vision of law as a site of injustice as well as justice, clinics as a site of theory and practice, and legal practice as a form of communication and connection between people will serve to inspire and support new generations of law students and their teachers.

^{Featured image by Sasun Bughdaryan via Unsplash.}