Thinking About Clinical Legal Education

Philosophical and Theoretical Perspectives

Omar Madhloom, Hugh McFaul, Omar Madhloom, Hugh McFaul

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000452976
• Edition: 1
• Topic: Jura
• Subtopic: Rechtserziehung

Thinking About Clinical Legal Education provides a range of philosophical and theoretical frameworks that can serve to enrich the teaching and practice of Clinical Legal Education (CLE). CLE has become an increasingly common feature of the curriculum in law schools across the globe. However, there has been relatively little attention paid to the theoretical and philosophical dimensions of this approach. This edited collection seeks to address this gap by bringing together contributions from the clinical community, to analyse their CLE practice using the framework of a clearly articulated philosophical or theoretical approach. Contributions include insights from a range of jurisdictions including: Brazil, Canada, Croatia, Ethiopia, Israel, Spain, UK and the US. This book will be of interest to CLE academics and clinic supervisors, practitioners, and students.

1 Place-based education: Clinical Legal Education and ethics

Sarah Buhler and Rachel Stalker

DOI: 10.4324/9780429299247-2

This chapter explores the generative dimensions of place in CLE by discussing two very differently located clinical law programmes: the Legal Advice Centre (‘LAC’) at the School of Law at Liverpool John Moores University, and the University of Saskatchewan College of Law’s clinical law programme at Community Legal Assistance Services for Saskatoon Inner City (‘CLASSIC’).¹ A comparative approach helps illuminate the relationships between place and CLE, demonstrating the centrality and complexities of local places when it comes to clinical pedagogies and practices.²

PBE and its relationship with CLE – definitions and synergies

PBE has developed principally in the USA, in an attempt to reorient primary and secondary education from what has been described as the ‘dehumanizing and colonizing implications of the banking model … of education which is the preferred delivery method for schools trying to improve their standardized test scores’.³ As David Gruenewald has written of dominant pedagogies:

[i]n place of actual experience with the phenomenal world, educators are handed, and largely accept, the mandates of a standardized, ‘placeless’ curriculum … what is most striking about the classroom as a learning technology is how much it limits, devalues, and distorts local geographical experience.⁴

1 See Elizabeth Mertz, ‘Teaching Lawyers the Language of Law: Legal and Anthropological Translations’ (2000) 34 J Marshall L Rev 91, 99. In Canada, David Sandomierski’s recent detailed and nuanced study of contract law teaching tends to support the proposition that consideration of context becomes marginalised in the actual practice of teaching in Canadian law school classrooms. See David Sandomierski, Aspiration and Reality in Legal Education (University of Toronto Press 2020), 24–25.

2 For more on comparative approaches in socio-legal research, see Annelise Riles, ‘Comparative Law and Socio-Legal Studies’ in Mathias Reimann and Reinhard Zimmerman (eds), The Oxford Handbook of Comparative Law (OUP 2006), 775.

3 S Anthony Deringer, ‘Mindful Place Based Education: Mapping the Literature’ (2017) 40(4) Journal of Experiential Education 333, 334, citing Paolo Freire, Pedagogy of the Oppressed (Continuum 1970). Deringer’s article is a useful, recent overview of literature on PBE as well as mindfulness.

In contrast, PBE is ‘concerned with context and the value of learning from and nurturing specific places, communities, or regions’.⁵ For Sobel, PBE requires ‘hands-on, real-world learning experiences’, which leads to better academic achievement and strengthened community and civic connections.⁶

Bringing together critical pedagogy and PBE, scholars such as Gruenewald have proposed that ‘critical PBE’ must concern itself with ‘the contextual, geographical conditions that shape people and the actions people take to shape these conditions’.⁷ Critical PBE is concerned also with the ways that power operates in and across places. For Gruenewald, ‘place’ is always political, and therefore PBE must ‘identify and confront the ways that power works through places to limit the possibilities for human and non-human others’.⁸

Any clinical practitioner will immediately feel a shock of recognition at descriptions such as these, even if coming to PBE for the first time. Putting aside the references to non-law curricula and applying these ideas to CLE, the synergies are immediately obvious. Both educational methods depart from, and implicitly critique, conventional pedagogical techniques by incorporating experiential learning into what can be a monolithic, static curriculum, whether in terms of content or delivery. Both embody a critique of ‘placeless’ and acontextual approaches to knowledge and practice; both emphasise that education can and should be concerned with addressing injustices and inequities in the real world.

These critiques apply to traditional law school pedagogies. Certainly, classroom-based legal education has aimed to produce better citizens, and not merely technicians able to navigate the complexities of the legal system. However, numerous studies attest to the negative effect that the study of the law can have on law student wellbeing, the suggestion being that there is a distinctly unethical undercurrent to the messages imparted by legal education’s ‘hidden curriculum’.⁹ One factor among others for these negative outcomes is legal education’s disavowal of social context, which Granfield has referred to as a ‘self-alienating ideology associated with legal consciousness.’¹⁰ Elizabeth Mertz argues that when law is conceptualised as being separated from social context, legal decision-making and practice can become alienated from ethics.¹¹ In other words, the dominant pedagogies in law schools have tended to embrace an acontextual and ‘placeless’ view of law: what Elizabeth MacDowell refers to as ‘point-of-viewlessness’.¹² In this model, law is presented as neutral and not connected to place or the local, as existing purely in a conceptual space and with little attention to the emplaced, material contexts in which law operates and is interpreted.¹³

4 David A Gruenewald, ‘The Best of Both Worlds: A Critical Pedagogy of Place’ (2003) 32(4) Educational Researcher 3, 8.

5 Ibid. 3.

6 David Sobel, Place-based Education: Connecting Classroom and Community (The Orion Society 2004), 4.

7 Gruenewald (n4) 4.

8 Ibid. 7.

9 For two excellent overviews, see Kennon M Sheldon and Lawrence S Krieger, ‘Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being’ 22(2) Behavioral Sciences and the Law 261 and Colin James, ‘Lawyers’ Wellbeing and Professional Legal Education’ (2008) 42(1) The Law Teacher 85. For a discussion of the hidden curriculum and Clinical Legal Education, see Caroline Gibby, ‘Clinical Legal Education and the Hidden Curriculum in the Neoliberal University in England and Wales’ in Caroline Strevens and Rachael Field (eds), Educating for Well-being in Law: Positive Professional Identities and Practice (Routledge 2020).

In contrast to these approaches in law school classrooms, the educational richness of a student engaging with a paradigm problem-based learning scenario in a clinical setting – in the guise of meeting a client with an undigested and often urgent legal question – has been widely discussed.¹⁴ As Sameer Ashar argues, it is hard to ‘replicate the experience of an immersive confrontation with an intractable social problem and close work with clients … on that problem’.¹⁵ CLE necessarily happens outside of the classroom – in place and ‘in context’ – through students’ experiences of working directly with clients, hearing clients’ stories, and determining how the law may or may not promise solutions or justice for clients. Donald Schön refers to this material, lived, world of practice as the ‘swampy lowlands’, where problems are ‘messy and confusing and incapable of technical solution’.¹⁶ According to Deobrah Curran:

We learn differently when we change the physical context. To experience law in action in a place … creates opportunities for deep learning that listening to someone tell you about the law cannot provide.¹⁷

One final point of note is that PBE scholars have been more assiduous at quantifying measurable improvements in student skills and/or educational attainment than CLE,¹⁸ with some exceptions.¹⁹ As CLE continues to become more widespread, this is something clinicians should emulate in order to analyse, evaluate and improve clinical methods.

10 Robert Granfield, Making Elite Lawyers: Visions of Law at Harvard and Beyond (Routledge 1992), 53.

11 Elizabeth Mertz, The Language of Law School: Learning to ‘Think Like a Lawyer’ (OUP 2007), 220.

12 Elizabeth L MacDowell, ‘Law on the Street: Legal Narrative and the Street Law Classroom’ (2007) 9(2) Rutgers Race and Law Review 285, 317.

13 See discussion in Nicholas K Blomley and Joel C Bakan, ‘Spacing Out: Towards a Critical Geography of Law’ (1992) 30(3) Osgoode Hall Law Journal 661, 663–664.

14 See John Dewey, Experience and Education (Touchstone 1997); Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Routledge 1991). For a more recent example, see Fran Quigley, ‘Seizing the Disorienting Moment: Adult Learning Theory and the Teaching of Social Justice in Law School Clinics’ (1995) 2(1) Clinical Law Review 37.

15 Sameer Ashar, ‘Deep Critique and Democratic Lawyering in Clinical Practice’ (2016) 104(1) California Law Review 201, 219.

16 Donald A Schön, Educating the Reflective Practitioner: Toward a New Design for Teaching and Learning in the Professions (Jossey-Bass 1987), 3.

17 Quoted in John Borrows, ‘Outsider Education; Indigenous Law and Land-Based Learning’ (2016) 33(1) Windsor Yearbook on Access to Justice 1, 9.

18 Gerald A Lieberman and Linda L Hoody, ‘Closing the Achievement Gap, Using the Environment as an Integrating Context for Learning’, State Education and Environmental Roundtable, San Diego, CA, 1998, available at <https://digitalcommons.unomaha.edu/slcek12/64> accessed 26 February 2021. This report made clear that PBE can have a demonstrably positive effec...