A bit of history on law clinics and law schools

By Roberta M. Gubbins

Legal News

In the early years, American legal education was believed by some to be a craft handed down from master to apprentice. Others saw legal education as learned profession to be taught at universities. Both theories had avid supporters and existed in uneasy compromise, which still exists today in the debate over the role of clinical educations.

The concept of the study of law as a craft is rooted in English history. For 800 years English barristers, the litigators with exclusive privilege to appear in the Royal Courts learned their craft through apprenticeships and membership with one of the four Inns of Court of London, which were education institutions, boarding facilities and professional organizations.

Initially the only lawyers in colonial America were Inn trained lawyers, however, the demand for lawyers increased and an underground industry of part-time lawyers developed. Gradually a homegrown bar of lawyers emerged and by Independence Day in 1776, there was a trained bar in almost every colony.

There was, however, little formal training for lawyers in the 18th century. Those aspiring to be lawyers would contract with a practicing lawyer where the apprentice paid a fee and served as a clerk and the lawyer provided instruction in the law and sometimes room and board. Most colonies required four to seven years' apprenticeship before proving their worth through a form of oral examination.

The apprenticeship training gave the lawyer a basic knowledge of procedural law, instruction in how to read a case and introduction into the relevant law of the jurisdiction. Its weakness was that it did not teach the history and scope of the law or an appreciation of the law as science and a system. To fill this void, William and Mary College had the first formal law faculty in 1779.

Litchfield Law School, the first independent law school was founded in Litchfield, Conn. in 1784. The school granted no degree and was a practical program designed to teach the student what he needed to know to practice law. Litchfield and its imitators were the beginning of the recognition that law was a learned profession not solely a craft to be learned through apprenticeship or self-education.

Harvard Law School was founded in 1817 thanks to the efforts of Justice Isaac Parker, Chief Justice of the Supreme Judicial court of Mass. Parker proposed a separate law school with an intensive 18 month curriculum that combined the practical and the theoretical. Three years were required for those without an undergraduate degree. By 1870 thirty-one law schools had been established.

It was around this same time that the casebook method of instruction was being introduced and the schools began moving away from apprenticeships. Eventually the casebook method took over legal education theory and apprenticeships disappeared.

Students at several law schools in the 1800's and early 1900's, wishing to practice lawyering skills and legal analysis while serving a social justice mission by serving those unable to hire a lawyer, established volunteer non-profit "legal dispensaries." William Rowe in a 1917 law review article advocated that every law school have a clinical program.

In 1921 the Carnegie Foundation for the Advancement of Teaching funded a study of legal education. The result was the "Reed Report" named after its non-lawyer author, Alfred A. Reed. The report identified the three necessary components of a legal education: general education, theoretical knowledge of the law and practical skills training. The casebook method provided theoretical knowledge. The report recommended at least two years of pre-law training and a practical skills course.

At that time, not a single state required a university based law school degree as a precondition for admission to the bar, independent law schools were common and apprenticeships still provided the basic training for lawyers. Although there were advocates for clinical programs, only a few law schools offered in-house clinical courses through the first half of the 1900s.

The lack of clinical education programs were the result of four factors:

1. Law schools wanted to distinguish themselves from apprenticeships.

2. Law schools were under funded and could not afford the intensive faculty supervision needed in law clinics

3. Law school faculty disagreed about the value of clinical programs

4. Between the 1920's and 1940's the American Bar Association was trying to raise the standards for law schools which didn't include clinical legal education.

A "legal aid clinic" in the 1950's was any law school run program where law students assisted with legal aid cases. Clinical education was not mandated and in 1951 there were only 28 clinics. The 1960's saw a sea change of attitude.

Clinical legal education expanded due to demands for social relevance in law schools, the development of a teaching methodology, external funding in support of clinics and an increase in the number of professors capable and interested in teaching clinical courses. Those early clinics had two goals--hands on legal training and free representation for those unable to afford lawyers.

Until the mid-1970's, the term clinical legal education included legal research, moot court, appellate case analysis, in other words any law-related activity outside the classroom. Then there began an effort to create a common vocabulary and clinical teaching methods. By the late 1980's there was general agreement that clinical education was a method of teaching that included student involvement with problems the lawyers confront in practice, that they help deal with the problems and student performance is subjected to intensive critical review.

Since then, clinical legal education continues to move forward. The trend to move beyond the casebook method of legal education to integration of the clinical methods throughout the curriculum is supported yet clinical programs often remain at the edge of the law school curricula. Although law schools provide clinical programs, not all law schools require clinical experience for graduation.

Law school clinical programs have experienced court challenges as they take on powerful organizations that few others have the resources to test. These attacks could have a chilling effect on clinics causing them to turn down unpopular clients or to close a clinic that comes under attack.

Clinical education offers a compromise between those who see the study of law as an art that can only be learned by doing and those who view it as a science that can be taught. There is room for both in the legal education of today.

Published: Mon, Jul 4, 2011

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