Best Practices in Law Schools Survey is great; but what is “clinical?”

So, Deborah Rhode’s Best Practices in Law Schools Survey just hit my school, probably yours too.  Brilliant concept, superb execution.  Very excited about the potential impact of delivering real, solid, accurate information to USNWR respondents.  Not trying to compete with USNWR, but to subvert it, if you will.  All good.  So affirmatively seek out your academic dean or other relevant  administrator and inquire, what’s up with the Best Practices Survey?  Don’t let it fall behind the decanal desk.  Obviously, it will only have clout if the participation is broad enough to make its data meaningful.

However, in this context the age-old pesky question “What do you mean when you say ‘clinical’ or ‘clinic’?” rears its ugly head.  First, several Survey questions exclude “clinics.”  I have no quarrel with doing this, presumably to focus attention on non-clinical courses, trying to tease out the extent of innovative learning practice in the bulk of the curriculum.  (Don’t worry, experiential courses, without exclusion,  can help out their schools on questions 8 and 9, which inquire whether any courses provide ongoing feedback throughout the semester and/or utilize multiple assessments of student performance, and on questions 12 and 13, which ask about the law school’s efforts to “encourage” (why not “explicitly teach”?) collaboration and student pro bono work (why do we never ask about FACULTY pro bono?).)

But this usage of “clinics” in the survey, especially as embodied in question 6,

6) What percentage of students have graduated in each of the past five years having had a clinical experience?

offers way too many chances to fiddle with the data.  How will the various law school administrators interpret the term “clinical experience”?  Will some include externship courses — many of which already bear the misnomer “clinic” in their titles?  Will they include simulation courses or law office management courses that are referred to on their campuses as clinics?

The same issue comes up with the ABA, and with the Equal Justice Works Survey.  It was basically sidestepped by Carnegie (see p. 120) , which fobbed it off to Best Practices (at pp. 188-93, 198-203), which did not provide any clear delineation.  It’s surprising that our community has yet to formulate definitive distinctions along these lines.  Not to say, of course, that one type of program is better or worse, but there are differences, or otherwise we should just stop using the words altogether.  One more instance where it matters, and once more, it is not clear.


6 Responses

  1. Thanks so much for posting on this. One quick clarification: Deborah Rhode is not affiliated with the project at this point. We just used a quote of hers in support of gathering this kind of data.

    Our website also links to the great UW website from Crossroads conference as an example of a school that has collected some of this data in one place.

    Good point on clinical; couldn’t agree more. Intention was to use the ABA definition to distinguish from externship (faculty has primary responsibility for the case/to the client). See

    Query whether schools not following ABA definitions might help explain National Jurist thing a bit. Any volunteer auditors out there? Don’t know how or if ABA investigates such matters, but maybe we can write a letter asking them to do so, and volunteering services.

    We’ll put on our website a clarification re: clinical, but maybe will try to email to academic dean listserv some clairifications if there are more such questions — would very much appreciate any more thoughts along these lines.

    Please do encourage deans/academic deans to submit, and USN survey respondents to use this approach! Thanks.

  2. The Equal Justice Works survey also uses the ABA definition:

  3. OK, I misperceived Deborah’s role — inspiration rather than proprietor — and I need to explain why the ABA/EJW definition doesn’t quite do it for me.

    Sure, all else equal, it’s preferable for a full-time teacher to run any educational program. That’s the only factor that those definitions focus on: clinics are “those courses or placements with other agencies in which full-time faculty are primarily responsible for all cases that students are working on”. But that doesn’t deal with the problem, which I have observed in all three of the very different law schools I have taught in, of what I call the “in-house externship.” Notice that the ABA/EJW definition describes the students as “working on” cases for which faculty are “primarily responsible.” Yes, this is partly semantics, but when it comes to definitions, isn’t that the point?

    I’ve seen very expensive programs deemed “clinics” in which the cases plainly “belong” to the professors and the student role is essentially limited to assisting, researching, picking up discrete tasks (often important tasks, like arguing a motion), and observing. Not to say the participating students don’t learn a lot: they do. And often they love it: compared to their upper division classroom courses, they think it’s one of the greatest experiences in law school. Sometimes it appears that they love it even more than what I will call a “real clinic”, in which the student attorneys ARE the lawyers, make the decisions, and perform all aspects of the work, in constant dialogue with, but not directed by, their professor. After all, the “in-house externship” may offer most of the glam and gratification of a real clinic without as much stress and angst for the student.

    I know that it can be quite instructive, and a lot of fun, to sit in on a case conference where two or three brilliant, knowledgeable professor/lawyers discuss with one another, in rapid-fire sophisticated discourse, what’s going on in a case and what should happen next. It’s harder and perhaps not as interesting for the student attorney team to stumble tentatively through the same issues themselves. And an in-house externship can handle more cases, more quickly, at higher levels in the food chain, involving more complex and long-range legal and factual issues — more fun for the faculty, too, one might argue, than methodically supervising, year after year, a group of student attorneys cutting their teeth on, say, the same basic set of bread-and-butter,routine legal needs of ordinary poor people. Those might be very appropriate for brand-new lawyers with no experience to actually handle, but hardly the stuff of flashy press releases and brochures. (What was it that Scalia guy said again?)

    But, if definitions mean anything, then, I submit, the in-house externship is not a clinic, should not be classified as a clinic, and to the extent that we ever care about the difference between learning and generalizing from experiencing the consequences of your/your peers’ own choices, as opposed to from vicariously experiencing the consequences of expert /superiors’ choices, the term “clinic” should be reserved for programs that rigorously maintain the focus on student decision-making and action, rather than on delegated assistance and directed performance of tasks.


  4. It is wonderful that the momentum drawn from the Carnegie report and Best Practices and more recently CSALE has resulted in so many efforts to document and highlight curricular and co-curricular activities that integrate theory, doctrine and practice. A few follow-up points about The E-Guide to Public Service at America’s Law Schools:

    The Equal Justice Works survey does ask about faculty pro bono, and the responses may not surprise you. Out of 157 “E-Guide” schools, only 30 report having a formal faculty pro bono policy. Fewer than 1/3 collect any information about faculty pro bono, and only 33 schools could say at least ten professors had done pro bono in the 06-07 academic year. Check Karen Lash’s post for more information:

    We also ask many questions designed to tease out the integration of public service and hands-on learning throughout a student’s three years. Similar to the Best Practices Survey question 13, we ask a series of questions regarding the school’s co-curricular pro bono and public interest programs – including details about staffing, resources and actual opportunities in the hope of providing us all with a baseline about what’s happening in the academy, and prospective law students with easy-to-access information about the value added “real world” experiences available.

    We also collect information about law schools clinics, externships, “other courses with hands-on opportunities” and “faculty-run centers with hands-on opportunities.” I understand your wish that the ABA clinic definition would get at finer distinctions, though we opted to keep our definition consistent so as not to complicate things further. Our hope is that in these first few years of The E-Guide we can contribute to establishing that elusive baseline, provide schools with optional textboxes to further explain their clinic and other models, and over time refine the questionnaire to better capture important distinctions.

    As the new Senior Program Manager at Equal Justice Works, responsible for The E-Guide, I have been working with Harris Interactive, an independent marketing research firm, to improve the content and interactivity of both the survey instrument and the final product. New survey data will be publicly available in the spring, with greatly improved search capabilities for users. The data will also be used as a starting point for our own “best practices” tool that will allow schools to share ideas and highlight successes.


  5. Would someone provide information about this survey. Who is conducting it? What is the purpose. Apparently, we have not received it yet, so no one at our law school was aware of it. Thanks!

  6. Here’s an announcement of the survey, and a link to where you can download a copy — it was not sent directly to law schools, just to the academic dean listserv, and people can also download and apply through our website. Spread the word!

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