Global Agendas, Cultural Capital and Self-Assessment of Clinical Legal Education Programs

Abstract

Modern clinical legal education programs are rich in their diversity and ambition, so much so that it is often difficult to decide if a self-described clinical program meets the description of 'clinic' or is in reality something less than that, seeking to achieve academic acceptance without investing in faculty understanding of clinical pedagogy or the money needed to provide reasonable personnel and physical infrastructure. In most countries, there has been little effort to establish standards for clinical legal education through accreditation bodies. Given the dearth of national direction, most law school deans simply decide to let the description and definition issue remain obscure. They do so for many reasons: because national legal education system bureaucrats imperfectly understand or recognise clinical methods; because students' consistent requests for more experiential legal education are muted and respectful; because traditionally-educated legal academics are wary of bringing practice-related content into their doctrinal classes; because doctrinal content is relatively cheap to teach compared to clinical methods; and finally, because finding a definition for 'clinic' and then acting on it is not required in any international accreditation context and rarely in a national context.

Local systems' recognition of clinical method and pedagogy is slowly changing, especially in North America, and the issue of international clinical accreditation will become important in this decade as bodies such as the International Association of Law Schools and the Global Alliance for Justice Education begin to think about comparative standards for law schools and justice education.

There is wide geo-political context to the movement towards national standards in legal education that may soon assert pressure for international standards. The frustrated UN effort to improve global living standards in the context of over-population, increasing carbon emissions, declining natural resources and increasing species' extinction rates has certainly focused attention on primary and manufacturing industries' practices, but very few tertiary or service sectors have been called upon so far to make a tangible difference to these mammoth problems.

Educational recognition of the scale of the challenges, where it has occurred at all, has been primitive rather than sophisticated, in the sense that the debate about all these issues is output-centred - for example, on reducing emissions - rather than input-aware. Little serious attention has yet been given to the effect education has on the priorities of the professionals who engineer and manage the policies that produce our global danger zones, and the regulators of these sectors are even less concerned with how their lawyers, accountants, financial planners and bankers choose to behave in these contexts. Even the 2008-09 Global Financial Crisis ('GFC'), partially credited to the technical experimentation of a few so-called banking professionals, their lawyers and their attendant lax regulation, has led to output-based re-regulation rather than input-aware red-education.

There has been little real pressure on the key finance-related professions or on their respective tertiary education systems to make a 'justice-presence' felt, or to formally harness the effort of either sector in the interests of international contributions to these mammoth resource allocation problems. In the case of law schools, the issues seem rather stark. As a vast but I hope not too facile generalisation, most law schools allocate disproportionally huge resources to graduating more commercial and corporate lawyers with similar priorities to those of the GFC progenitors and global industrial polluters. The notion that law schools ought to nurture justice-artificers as the global legal education priority is seen as too strong; it rings out the fear of socialism among first-world legal professions, but the global need for this type of lawyer will become socially more important nevertheless.

In this article an effort is made to explore exactly what law schools could do, if they also thought that there is little time to waste, in adopting and resourcing real justice education priorities within clinics. Curriculum reviews will no doubt raise many other possibilities, but if a dean decides to go down this path with some rigour, then clinics and definitions of clinics have an important and leading role in this task. And if some deans have an eye to longer-term international accreditation, then they might wish to consider if future law curricula should prioritise courses that value wealth distribution rather than mere wealth creation and sustainable development over other understandings of property rights? In that event, clinical program directors will also need to look to achieve quite a lot over the next five years if they are to be ready for internationally credible processes and standards.

This article proceeds in six parts. Part II discusses why self-assessment of clinical programs is necessary in the above context. Part III deals with the relationship of pro bono and externship concepts to clinical pedagogy and assessment. Part IV discusses the social capital of the legal profession and its connection to clinical programs. Part V describes the political and economic contexts for clinical program assessment. Part VI enumerates some of the major debates which will arise in relation to the likely criteria for self-assessment of clinical programs; that is, relevant curriculum theory; program 'effectiveness'; supervision standards; student assessment; connection to the whole of legal education; clinician selection, training, monitoring and retention; and finally documentation. Part VII concludes the article by tabulating suggested criteria for self-assessment and assigning a numerical weighting to each criteria. These weightings are intended to provoke a discussion not just as to the usefulness of individual criteria, but also as to the degree to which variations within each criterion might indicate greater or lesser commitment to clinical legal education.

Keywords: legal education, clinical legal education, clinical programs, practical legal education, law school, curriculum, clinical programs, students

JEL Classification: K00