The debate about job security and status has been with us continually for over 30 years, and it will be with us for many years to come. There is no most correct answer. I can agree with almost everything that has been written in this [clinic list serv] stream. The most important issue, however, is … who makes decisions about the educational goals of the curriculum and which courses will be offered? If you cannot influence curriculum decisions, you have no power to implement or shape the reforms that are needed.
The debate about job security and status, however, should not be suspended. It is important for all members of a law faculty to have equivalent job security and academic freedom. During my career, I had everything from none to total job security. At first, it did not seem important, but I came to realize that it really mattered whether I had equivalent job security and academic freedom to other members of the faculty. Until I acquired that, my career was at risk (and it frequently was) and I was potentially a pawn for those with more power and job security than I had. I survived. Many in my situation did not. If everyone on the faculty has one year contracts, that’s fine. If everyone has a fair opportunity to achieve lifetime tenure, that’s fine, too. But it is not fine for one group to have lifetime security and others to be on year to year contracts (unless, I would concede, there is an exceptionally good reason to have a very limited number of people on truely temporary year to year contracts). By the way, my preferred form of job security for everyone would be renewable long term contracts.
I am beginning to wonder whether it is useful to continue to refer to ourselves as “clinicians.” In the early days of efforts to increase the influence and security of clinical teachers, the question came up: how do we tell if someone is really a clinician? The answer at that time was that if anyone was willing to self-identify themselves publicly as a clinician, they must be one. Today, I would be hard-pressed to draft a definition of a clinician. Wouldn’t you? I think I’m correct to say that the Best Practices book neither speaks of law school faculty as clinicians or professors, but rather as “law teachers.” I think all law teachers should be using similar approaches to educating students, but with different emphases depending on the specific goals of our courses.
In closing, doesn’t setting a goal of having all students graduate with at least one “clinical course” miss the message of Carnegie and Best Practices about where law schools should be going (although in some contexts that might be the most achievable first step)?
Roy
Filed under: Who is Using the Best Practices Book? |
Best Practices for Legal Education 
Professor Alan M. Lerner, responds to Professor Stuckey:
Friends,
I have been following this stream, also, as well as the discussion in Cleveland, and before. Roy’s point about curriculum is essential. I would add, however, that status has a natural impact on the impact that we can have on curriculum. If those of us law teachers who, using experiential methods whose validity has been attested to by the scientific community, focus on our students future role and skills as lawyers, their professionalism, and the critical force that they, as lawyers, can exert in our communities and society, don’t have relatively equal status, it seems to me unlikely that we will be able to exert significant impact on curriculum.
I would like to offer another thought to the discussion. At page 94 of the Carnegie Report, the point is made that clinical education has not articulated an adequate “pedagogogical theory of legal practice.” While I am not convinced that I fully understand, or to the extent that I understand, agree with that indictment, I do think that we should build our demand for equality on a base of a definition or theory of legal education. If, under an acceptable theory of legal education what we do is as important as what teachers of theory and doctrine do, then our expectation of equal role and equal treatment – in curricular influence and in security – should follow. As a start, Carnegie, and pretty much every US law school of which I am aware, claims that they – using the Landell/Socaratic model – teach their students to “think like lawyers.”
All of us who have actually invested a significant amount of our lives being lawyers for real, human clients,, and reflecting upon what that means and requires, know that the thinking of lawyers is far more complex than what passes for teaching students to think like lawyers in the modern version of the Langdell/Socratic model. For one thing, good lawyers can and do consider their client’s context, as well as the emotional forces, including deeply held values, at work within themselves, their clients, their adversaries, the tribunals before whom they plead their clients’ matters (Yes, you, too, Justice Scalia!), and the practical skills that are necessary to make theory approach reality.
Chapters 1 & 2 of Best Practices for Legal Education contain a thorough discussion of the need to articulate goals (How would we expect one of our students to plan a case or help a client without clarifying and articulating goals and priorities?), and what they should encompass. Yet, I think that we need something on the order of a short statement, not more than a couple of sentences that captures our meaning, and that we can share with, perhaps, the ABA, the AALS, etc.
Here is a note that I scribbled down at the lunch table in Cleveland during the discussion (edited with some thoughts from my dear colleague Lou Rulli, though I take full responisbility). If anyone thinks that my suggestion that we develop a short “theory of the case” or “theme” is worth pursuing, perhaps it can help to advance the ball. If not, not.
“Legal education is the preparation of our students to become, to the best of their ability, critical thinking, ethical, professionally skilled, and socially and emotionally aware lawyers for their clients, who understand their role, and obligation to serve, are capable of understanding their clients and the context from which they and their legal problems emerge, and who contribute positively as members of their communities, and of the legal profession.”
-Alan
[posted with consent of author]