Getting Real About Legal Realism, New Legal Realism and Clinical Legal Education
27 Pages Posted: 20 Nov 2011
Jerome Frank’s call for a “clinical lawyer-school” is cited so frequently in clinical scholarship that it borders on the canonical. Like many calls for reform in legal education, Frank’s plea for clinical lawyer-schools was based on a critique of the appellate case method of legal instruction. However, unlike most critiques, the legal realist critique was embedded within a jurisprudential challenge to the meaning of law itself, arising from American Legal Realism. Running through legal realist jurisprudence was a distinction between the “law in books” and the “law in action,” with the idea that law is not found primarily in statutes and judicial opinions, but rather in the behavior of judges and other legal officials. From the legal realist perspective, the value of clinical legal education lay in its potential to force law students out of the artificial world of the “law in books” and expose them to the complex and variegated world of the “law in action.” Jerome Frank’s call for clinical lawyer-schools failed to gain traction within the American Legal Realist movement of his day. This Article argues that this failure is largely due to two barriers: the strong pull that the study of appellate cases exerts in legal scholarship and legal education; and the “relevance gap” between the behavioral study of law and the practice of law.
Both clinical legal education and scholarship in the legal realist tradition have matured since the time of Jerome Frank’s call for a clinical lawyer-school, giving rise to the hope that more sophisticated thinking in each area can help to overcome these barriers. Most promising among the myriad revivals of “New Legal Realist” scholarship in the past decade is a call for research that aims to examine law from the “bottom up” perspective of those who lack power in society; to critically question the neutral and objective standpoints traditionally associated with social scientific research; and to use pragmatic engagement in the world as a platform for legal research. Clinicians are naturally situated to answer this call for embedded research, which fits closely with the social justice goals and reflective practice methods that have developed within clinical legal education since Jerome Frank’s time. And, I argue, answering the call of New Legal Realist scholarship promises both to enrich clinical education by expanding clinicians’ understanding and integration of systemic issues into their clinical teaching and to focus the New Legal Realist study of the “law in action” by shaping research around pragmatic goals inherent in the social justice practice.
Keywords: legal education, clinical legal education, clinical lawyer-school, Legal Realism, New Legal Realism
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