Association of American Law Schools

CLINICAL LEGAL EDUCATION: HISTORY AND DIAGNOSIS

Author(s): George S. Grossman
Source: Journal of Legal Education, Vol. 26, No. 2 (1974), pp. 162-193
Published by: Association of American Law Schools
Stable URL: http://www.jstor.org/stable/42892228
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 162 JOURNAL OF LEGAL EDUCATION [VOL. 26

CLINICAL LEGAL EDUCATION: HISTORY

AND DIAGNOSIS

George S. Grossman *

INTRODUCTION

The during
during
following
a research
a research
projectpaper
conducted
projectthrough
was derived
the University
conducted from
of through readings the and University observations of
California at Los Angeles for the Council on Legal Education for Pro-
fessional Responsibility (C.L.E.P.R.) in the early months of 1972. The
project involved visits to twenty-two law school clinical programs ** and
a questionaire mailed to over one hundred clinical programs and re-
turned by over one-half. The purpose of the research was to ascertain
the needs of clinical programs for law library resources and services.
The report, entitled "Clinical Legal Education and the Law Library"
is to be published elsewhere ; f the following paper was written in addi-
tion to the project report in order to record the author's impression of
clinical legal education as it stood in early 1972, to consider its sources
and to speculate on its future. It was undertaken entirely at the au-
thor's initiative and is not related to the paper sponsored by C.L.E.P.R.
and U.C.L.A. Nevertheless, the author wishes to express his apprecia-
tion to these two organizations, and especially to Frederick E. Smith,
Law Librarian of U.C.L.A. who conceived the C.L.E.P.R.-sponsored
study.
Another disclaimer is in order - the following study identifies four
"models" of clinical legal education : the "service" model, the "law re-
form" model, the "participant-observer" model, and the "teaching"
model. Such categorization necessarily involves considerable abstrac-
tion and overlooks programs which contain mixtures or variations of
the enumerated concepts. As with any abstractions, the "models" are
introduced for ease of exposition, and are not intended to apply rigidly
to any particular clinical programs. These models are treated in Chap-
ters II, III and IV, while chapter I is devoted to the historical back-
ground of the current clinical movement.
* Professor of Law and Law Librarian, University of Minnesota. At the time
this article was prepared, the author was Professor of Law and Law Librarian at
the University of Utah.
** U.C.L.A., University of Southern California, Loyola of Los Angeles, Columbia,
New York University, Rutgers (Newark), Harvard, Boston University, Boston Col-
lege, Northeastern, American University, Georgetown, Howard, Catholic University,
University of Detroit, Wayne State, University of Minnesota, University of Wash-
ington, University of California at Berkeley, Hastings, Stanford and University of
Utah.

1 67 L. Library J., No. 1 (1974).

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 1974] CLINICAL LEGAL EDUCATION 163

I. HISTORICAL PERSPECTIVE

(A) The Case Method

Until relatively recently, apprenticeship was the predominan
of training American lawyers. Only in the last one hundre
law school education become accepted as an alternative,
the last few decades has it become virtually the exclusive aven
trance into the legal profession.1

The big change came in the year 1870, when Harvard La

under the leadership of Dean Langdell, adopted the case
instruction. Prior to that time, law schools existed both at
and under independent proprietary auspices, but they functio
supplements to apprenticeship training. Most law schools
law with the aid of systematic treatises setting forth compreh
ments of current substantive law,2 while some university
studied the law as a liberal art and did not aim to prepare
practice.3

Dean Langdell's innovation swept away both types of law schools,

and substituted a new approach to legal education. Instead of study-
ing systematic treatises of the law, or studying law as an abstract so-
cial science, law students were to study selected appellate opinions and
distill from them the evolution of legal principles. The lawyer's train-
ing was to be provided by the mental process involved in the analysis,
synthesis and distinction of appellate opinions, honed through the
"Socratic" method of classroom teaching which created a dialog between
student and teacher designed to elicit the underlying reasoning and prin-
ciples involved.

Apprenticeship training remained an alternative or as an additional

requirement until well into the Twentieth Century, but its penchant for
being "uneven" and "exploitative" 4 convinced the profession to discon-

1 Vestiges of apprenticeship remain in New Jersey, where a law office clerkship

following law school graduation is required ; in Pennsylvania, where a preceptor
system remains in effect; and in ten other states, where it remains possible to
qualify for the Bar through law office trainine.
2 Stolz, Clinical Experience in American Legal Education: Why Has It Failed ?
in E. W. Kitch, Clinical Education and the Law School of the Future 56 (Univer-
sity of Chicago Law School Conference Series, no. 20, 1970). [Hereinafter cited
as Chicago Conference.]
3 Note, Modern Trends in Legal Education , 64 Colum.L.Rev. 710. 713 Ì1964Ì.
4 Kitch, Foreword: Clinical Education and the Law School of the Future , in
Chicago Conference, 5, 6. See also, Stolz, supra, note 2, at 58. There is also
reason to believe that the apprenticeship system was a bar to social mobility and
especially to the entrance of immigrants or their children into the legal profes-
sion. See, Rowe, Legal Clinics and Better Trained Lawyers , 11 Ill.L.Rev. 591
(1917).

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164 JOURNAL OF LEGAL EDUCATION [VOL. 26

tinue it.5 Today, apprenticeship remains in disrepute,

which continue to require law office training are follow
States in reducing or eliminating the requirement.6
Dean Langdell's reforms may be interpreted as a resp
cial conditions of the late Nineteenth Century. The Ind
tion then sweeping the country brought with it rapid c
less than in other aspects of life. Commercial activity
to a burgeoning commercial law, and the treatise write
ingly unable to keep current. The now-familiar compla
graphic explosion in law was beginning to be heard.7
fore, more than ever before, needed training not so m
rules of the moment as in the knack of adapting to a r
legal system. This, the case method provided; its emp
ing skills, rather than substantive law, was based on a d
than a static, view of law.
With the development of its own methodology, legal e
its place within the university. No longer relegated t
"trade school," or to an adjunct of the liberal arts, law
lay their claim to academic respectability.
Moreover, since the process involved in the case meth
intellectual one, the full-time, scholarly law teacher em
the exclusive purveyor of legal education.8 The part-tim
titioner, which was theretofore the backbone of legal e
a sign of law school poverty. Dean Langdell himself is
ing said :
What qualifies a person ... to teach law is not experience in
the work of a lawyer's office, not experience in dealing with law,
not experience in the trial or argument of cause - not experience, in
short, in using law, but experience in learning law.9
The advent of the case method also led law schools to assume a na-
tional character. Since the goal of legal education was no longer the
imparting of substantive legal rules but the development of mental fac-
ulties, jurisdictional boundaries ceased to matter.10 Casebooks used for

5 The final elimination of the requirement that law school be followed by a

period of apprenticeship came not because of the problems inhering in apprentice-
ship, but because law schools preferred to have stern pre-law requirements, and
it was thought impolitic to have requirements both before and after law school.
Stolz, supra, note 2, at 64-65.
«Great Britain, Committee on Legal Education, Report 28 (1971) [The "Ormrod
Report."]
7 Stolz, supra , note 2, at 59.
8 Id. at 58. See also, Frank, Why Not a Clinical Law Schooll 81 U.Pa.L.Rev.
907, 908 (1933).
» J. W. Hurst, Growth of American Law 263 (1950).
io Stolz, supra note 2, at 68-69.

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 1974] CLINICAL LEGAL EDUCATION 165

instruction contained examples from widely d

they could thus be marketed nationally. The r
tional flavor at each law school, but also a uniform
which may in large part be responsible for the v
change in legal education since 1870.
Today, more than a century after its introdu
method remains the prevalent mode of law te
inations - which in nearly all states represent the
than law school graduation for entrance to the
part to test only those faculties which the cas
develop.11 Thus, as many critics have noted,
may have become too complete.
The case method has been criticized almost from the start but the
criticism generally relates not to what it is, but to what it omits. In so
far as the contents of the case method are criticized, the brunt of the
criticism falls not on the concept of using judicial opinions for legal
instruction, but on the Socratic method of conducting classroom sessions.
The Socratic method has been termed aggressive, demeaning and destruc-
tive of group cohesion.12 While the case method has been generally con-
sidered an economical means of teaching,13 the Socratic method has been
called wasteful of class time.14

For what it is, the case method remains almost universally admired.
It remains uncontested that the case method represents a great improve-
ment over the law teaching methods prevalent before 1870. The intel-
lectual challenge of the case method is immeasurably greater than that
of rote learning; and the mental skills exercised are those most re-
quired of law practitioners - a "sense of relevance, [an] analytic tech-
nique, and a sense of historical growth and movement." 15 Even Jerome
Frank, a harsh critic of the case method and of Dean Langdell, allowed
that:

No sane person will deny that a knowledge of . . . rules and

principles, of how to 'distinguish' cases, and of how to make an
argument as to the true ratio decidendi of an opinion, is part of
the indispensable equipment of the future lawyer.16

iiCantrall, Law Schools and the Layman: Is Legal Education Doing Its Job!
38 A.B.A.J. 907, 909 (1952). The custom has developed to have law professors
compose bar examination questions and teach bar courses. Thus, the skills tested
are usually the same as in law school examinations with slightly more attention
to substantive law and local law.
*2 Stone, Legal Education on a Couch . 85 Harv.T./R^v 302 nor-n
Kitch, supra, note 4. at 7.
*4 Note, supra , note 3. at 717 n. 54.
Stolz, supra , note 2, at 58.
1« Frank, supra , note 8, at 910.

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166 JOURNAL OF LEGAL EDUCATION [Vol. 26

Some critics would add to the case method, some wo

but few propose its elimination - at least not in the f
education. The trouble comes when the case method is stretched into
the second and third years of law school. Jerome Frank has estimated
that the techniques of the case method can be mastered in about six
months ; 17 thereafter, boredom sets in, and legal education should turn
to something else.

What that something should be may be suggested by examining what

the case method leaves out. The critics of the case method usually
point to its almost exclusive preoccupation with appellate opinions,
which are merely the end products of one branch of the legal process.
In the meantime, the case method fails to consider other factors which
make up or influence the law or are affected by the law, including:
legislative and administrative materials ;
the trial-level proceedings ;
legal institutions (even the appellate court is not studied as an in-
stitution) ;
the legal profession ;
social and psychological forces (which may be most profitably
studied by the methods of other disciplines) .
Moreover, the case method has repeatedly been accused of failing to pre-
pare law students for the practice of law, because it does not train stu-
dents in:

legal skills other than case analysis (fact investigation, planning,

drafting, research, trial strategy and tactics, advocacy) ;
human-relations skills (interviewing, counseling, negotiating, com-
munications and emotional understanding in general) ;
the ethical and social responsibilities of the profession ;
knowledge of current substantive law.
The first major attempt to fill some of these gaps came from the Legal
Realists of the 1920's and 1930's.

(B) Legal Realism

For a half-century after Dean Langdell's innovation, his techniques
spread to law schools throughout the country. The first concerted at-
tack on the case method came in the years following the First World
War. The impetus for the attack came from the development of the
"Realist" school of jurisprudence which looked upon judicial opinions
in a manner radically different from Dean Langdell's self-contained
analysis.

i? J. Frank, Courts on Trial 237 (1949).

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 1974] CLINICAL LEGAL EDUCATION 167

A judicial opinion, according to the realists, is

logically consistent set of legal rules based on pre
studied by considering only the reasons which th
opinion. Rather, according to the Realists, it is e
standing of judicial behavior that the student look
the opinion to the social and psychological force
upon the judge as an individual, and upon the ins
sional system at the time of the opinion.18 The Real
assumptions about the nature of law ... be
light of scientific knowledge of the actual wor
tutions, and assumptions about social policy
light of scientific knowledge about society.19
To the law school curriculum, the influence of
that the social sciences were brought into the law
the early 1920's, first Columbia, then other law
with increasing their students' awareness of legal in
psychological forces, and of the way in which law a
actually function in society. Legislation took its
the subject of law study; courses in administrativ
in law school catalogs; and traditional subjects ca
"functional" ways.21 Legal scholars also began to
field research employing the research techniques of
The Second World War interrupted these effort
War, the emphasis shifted. A group of "Neo-Rea
fessors Lasswell and McDougal of Yale, called for
the law school curriculum in order to train lawye
makers" in society.22 Owing much to the insight
Neo-Realists added the observation that many in
assume roles as policy advisors or policy makers
powerful institutions.

The influence of Realism and Neo-Realism has

healthy antidote to the concentration of Dean Lan
decision, and some influences of Realism are no
the place of legislation in law courses is still grow
tive law and its offshoots (e. g. trade regulations
assimilated in the curriculum. But the law schoo
gling with the problem of how to give meaning to t

iSRogat, Legal Realism , in Encyclopedia of Philosophy 4

1 9 Id.
«o Stolz, supra , note 2, at 67.
21 Note, supra , note 3. at 724-27.
22 Lasswell & McDougal, Legal Education and Public Policy : Professional Train-
ing in the Public Interest , 52 Yale L.J. 203 (1943) ; Note, supra , note 3, at 722-23.

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168 JOURNAL OF LEGAL EDUCATION [VOL. 26

Law schools today remain torn between the influence

dell and the Realists. Efforts to combine the study
study of society continue ; so do uncertainties about ho
should be done. The resulting tension has been diagnose
mentator as a deep "schizophrenia" in legal education.83

(C) The Quest for Clinical Training

(1) The Realists

Although the "policy" orientation engendered by Ne
been charged with leading legal education "away from
technical competence," 24 early exponents of Realism were
law schools must not only equip lawyers to comprehen
ting in which law functions, but must also train them
practice. Karl Llewellyn, who, along with Jerome Fra
forefront of the Realists movement, denounced the "em
without facts" and urged law schools to give considerati
lem of turning legal or human knowledge into action." 85
Jerome Frank's writings virtually bristle at Dean Lan
fining law students to the written pages of appellate o
denying the value of law practice to both students and fac
The lawyer-client relation, the numerous non-rat
involved in persuasion of a judge at a trial, the fac
peals to the emotions of juries, the elements that g
what is loosely known as the "atmosphere" of a case
that is undisclosed in judicial opinions - was virtual
(and was therefore meaningless) to Langdell. A gre
realities of the life of the average lawyer was unrea
. A majority of the teachers in some of our
law schools have never met or advised a client, consu
nesses, negotiated a settlement, drafted a complicated c
or mortgage, tried a case or assisted in the trial of
upper court . . . Most of the professors in som
versity law schools have seldom, if ever, been i
room . . .

Students trained under the Langde

culturalists confining their studi
who study pictures of buildings
23 Bergin, The Law Teacher: A Man Divided Against Himself, 54 Va.L.Rev.
637 (1968).
24 Boden, Is Legal Education Deserting the Barl 37 Ins.Counsel J. 97, 99 (1970).
25 Llewellyn, On What's Wrong with So-called Legal Education, 35 Colum.L.Rev.
651, 658 (1935).

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1974] CLINICAL LEGAL EDUCATION 169

prospective dog breeders who never see a

dogs ... 26
To remedy the situation, Frank recommended the establishment of
"legal clinics,, in law schools to handle cases, not only for legal-aid
groups, but also for government agencies and "quasi-public bodies." 27
The clinics should teach students to be sensitive to the place of the lawyer
in the social process, and to the behavior of juries, witnesses and judges
as well as to appreciate the "uncertainty of facts" in litigation and devel-
op the skills of negotiation, draftsmanship, and planning.28 Moreover,
the clinic should afford opportunities to reflect on professional ethics,
to employ the insights of other professions, and perhaps to engage in law
reform activities.29

Jerome Frank summed up his message :

The trouble with much law school teaching is that, confining its
attention to a study of upper court opinions, it is hopelessly over-
simplified. Something important and of immense worth was given
up when the legal apprentice system was abandoned as the basis
of teaching in the leading American law schools. This does not
mean that we should return to the old system in its old form, that
we want mere apprentice-trained lawyers or law schools which are
merely "expanded law offices." But is it not plain that, without
giving up entirely the case-book system or the growing and valu-
able alliance with the so-called social sciences, the law schools should
once more get in intimate contact with what clients need and with
what courts and lawyers actually do ? . .
(2) The N e o-Realist s
The suggestions of Jerome Frank were beginning to gain acceptance
on an experimental scale,31 until the Second World War intervened.
Following the war, Karl Llewellyn, as Chairman of a special Committee
of the Association of American Law Schools revived the proposals for
practical training in law schools,32 but the momentum was gone.
The post-war Neo-Realists, though they agreed with the Realists'
view of the social sources and consequences of the law, did not take up
the Realists' concern with clinical law training. Perhaps the reason
lay in the Neo-Realists' predominant interest in training law students
26 Frank, supra , note 8, at 908-9, 912.
2? Id., at 917-18.
2« Id. at 918-19.
29 Id. at 921-23.
30 Id. at 913.
31 See, e. g Bradway, Some Distinctive Features of a Legal Aid Clinic Course,
1 U.Chi.L.Rev. 469 (1933).
32 The Place of Skills in Legal Education , 45 Colum.L.Rev. 345 (1945).

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170 JOURNAL OF LEGAL EDUCATION [Vol. 26

not as traditional law practitioners, but as "policy scientis

to advise or act in institutional settings. Understandably,
generation of the Atomic Age, a generation which has sur
economic depression and a world war, the search for "relev
education led to involvement in government. This trend
cerned fifteen years after the war when a conference of lega
considered the need for practical training, but concluded t
be the function of the bar while law schools should concentrate on fit-
ting more international legal studies into the law school curriculum.33
The Neo-Realists have not escaped criticism for their lack of concern
with practical law training. Their effort to train a body of policy scien-
tists has been denounced as "immoral, undemocratic . . . non-
sense," 34 and one legal educator has alleged that the "policy-oriented"
law schools are on "a deliberate course to destroy the professional char-
acter of the law school and . . . convert it into an interdisciplinary
mishmash under the label of social engineering." 35

(3) The Debate of the 1950' s

In spite of the unreceptiveness of Neo-Realists to practical training

for the law, thrice since the Second World War attempts have been made
to revive interest in clinical legal education. The first and most feeble
attempt started in the early 1950's.
Among those who advocated more practical training was a practi-
tioner, Arch M. Cantrall.36 Cantrall agreed with Jerome Frank that both
theoretical and practical training are necessary in law school, but his
emphasis was less on gaining understanding through practical exposure
and more on learning actually to perform lawyers' tasks :

The public [has] a right to expect every lawyer, even a newly ad-
mitted one, to be competent. It seems to me, as a minimum , that he
should be competent to examine a title; write a deed and other
customary instruments ; close a real estate deal ; institute and prose-
cute suits, including the statutory proceedings of his jurisdiction;
defend a criminal; prepare individual, partnership and fiduciary
tax returns ; work out an estate plan ; prepare and probate a will ;
administer an estate, with the federal and state 'returns, etc. ; and
form, operate and dissolve an individual proprietorship, a part-
nership and a corporation, including compliance at each of these

33 The Law Schools Look Ahead ; 1959 Conference on Legal Education, Ann Arbor,
Michigan 10 (1959).
34pincus, The Clinical Component in University Professional Education , 32 Ohio
St.L.J. 283, 292 (1971).
35 Boden, supra, note 24, at 100.
36 Cantrall, supra , note 11.

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 1974] CLINICAL LEGAL EDUCATION 171

stages with all the requirements of federal, s

tax and otherwise, applying to a small busine
It goes without saying that a proper law cou
instructions on the management of a law offi
clients, the development of a practice, the chargi
cal legal ethics, and the benefits flowing from pa
fessional organizations and movements.37

Cantrairs suggestions were not favorably receiv

In a detailed response, Dean McClain, Jr., of Duk
the blame on the profession for failing to prov
for acclimating new lawyers to practice. He sug
should perform the task through required apprentic
education, and he added that no amount of law scho
adequately prepare students to face all the practi
practice.38

The debate gave rise to considerable interest; s

one meeting of the Section of Legal Education a
Bar of the American Bar Association were devot
ensuing few years, but the opposition to the implem
training at law schools proved strong.

The idea may have failed to take hold because i

sight of some important points emphasized by the e
like Jerome Frank, clinical law training was not j
ground that it would enable new lawyers to face m
tical problems of practice; rather, for the greats
training was primarily for the purpose of deepen
standing. According to Realists, students need
"law in action" in order to become sensitive to t
on the world and the impact of the world on the la
reflect on their own future roles and not view l
"science" divorced from reality. This depth of p
from the debate of the 1950's.

The debate of the 1950's may have had some pr

however. Law schools eventually came to establis
tice court" programs which, though simulated, at
dents to the problems of practice. Unlike moot c
tice courts were not restricted to appellate brief
ment, but involved the trial-court level. Another by
37 Id. at 909.
38 McClain, Is Legal Education Doing Its Job? A Reply. 39 A.B.A.J. 120, 123
(1953).
3» See articles listed in 6 C.L.E.P.R. Newsletter, no. 1, at 3 (July 1973).
26 Journal of Legal Ed. No. 2- 4

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172 JOURNAL OF LEGAL EDUCATION [Vol. 26

was several "law centers" established at law schools with the aim of
providing reform-minded research. The centers also came to be used
as facilities for continuing legal education.40

(4) Teaching Professional Responsibility

The next time the issue of practical law training reached major pro-
portions, the theme was quite different. In the early and mid-lQóO's
the profession came to exhibit increased concern with the matter of pro-
fessional responsibility. Articles and professional meetings were de-
voted to the topic with increasing frequency.

One of the repeated conclusions of the articles and meetings was that
law schools should increase their teaching of professional responsibility41
- both in making students more sensitive to personal ethical considera-
tion in law practice and in making them aware of the social responsi-
bilities of the legal profession.

The alleged failure of law schools to sufficiently sensitize students

to these concerns was again attributed to the confining devotion of law
schools to the case method. It was felt that in order for law schools to
do an adequate job of teaching professional responsibility, law students
should be introduced to the actual settings in which lawyers practice.
A number of law schools began experimenting with teaching profes-
sional responsibility in a practice setting, but the link between profes-
sional responsibility and practical training weakened as another method
for teaching professional responsibility caught on - the so-called "per-
vasive approach" which is designed to inject elements of training for
professional responsibility into the whole range of courses traditionally
in the law school curriculum.4*

(5) The Council on Legal Education for Professional Responsibility

The movement of the early 1960's left some legacies which became
resurgent in the late 1960's and continue to build today. Among those
who became interested in advancing the cause of practical law training
for the sake of professional responsibility was the Ford Foundation
which helped establish the Council on Education in Professional Re-
sponsibility (C.O.E.P.R.). C.O.E.P.R. funded the establishment of
40 See, Storey, The Legal Center Movement: Ten Years in Retrospect , 47 A.B.
A.J. 997 (1961).
41 The Ashville Conference of Law School Deans on Education for Professional
Responsibility. Proceedings (1965).
42 See, Smedley, The Pervasive Approach on a Large Scale - "The Vanderbilt
Experiment ," 15 J.Legal Ed. 435 (1963) ; Samad, The Pervasive Approach to Teach-
ing Professional Responsibility , 26 Ohio St.L.J. 100 (1965) ; Thode & Smedley,
An Evaluation of the Pervasive Approach to Education for Professional Responsi-
bility of Lawyers , 41 U.Colo.L.Rev. 369 (1969).

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 1974] CLINICAL LEGAL EDUCATION 173

law clinics at a number of law schools and sup

of clinical teaching materials.43 In 1967, the F
neled its efforts through a new group, the Co
for Professional Responsibility (C.L.E.P.R.), w
ing force behind the widespread movement tow
tion.

II. CLINICAL LEGAL EDUCATION FOR THE COMMUNITY

(A) The Service Concept

As C.L.E.P.R. assumed the function of aiding the establishm

clinical programs, the underlying assumption of clinical educati
underwent major change. This was partly due to the loss of mo
behind the movement for clinical training for professional resp
ty, and partly due to a change in social circumstances.

The social change of the late I960' s which proved to have the
est impact on the development of clinical legal education stemm
the awakening interest of the government in the conditions of th
Among the governmental measures taken in the heralded
Poverty," was the provision of legal services for both the civ
criminal legal problems of those unable to afford legal counse
establishment of the Office of Economic Opportunity's neighborho
offices institutionalized this measure, and the Supreme Court
sion in Gideon v. Wainright 44 made the provision of counsel
fendants in felony cases mandatory.

With the addition of a new group of clients, the pressures on

gal profession to serve the needs of all who seek legal help in
It became a standard motto of the times that professional responsi
applies not only to the ethics involving the individual attorney
tionship with his client, but also to the responsibility of the pr
as a whole to see to it that legal services are made available to
ments of society.

The concern with the ability of the legal profession to meet

demands for legal services affected those in legal education. M
that the evident social concern of students should be harness
student manpower should be used to aid the legal profession in
the sudden new demands for legal assistance to indigents. Ty
43 See, Sacks, Student Fieldwork as a Technique in Educating Law Stu
Professional Responsibility , 20 J.Legal Ed. 291 (1968).
44 372 U.S. 335 (1963). The requirement of counsel has since been ext
misdemeanors. Angersinger v. Hamlin, 407 U.S. 25 (1972).

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174 JOURNAL OF LEGAL EDUCATION [VOL. 26

the quote from the Dean and Assistant Dean of Hast

Law:

Now that the access to legal services for all economic levels is
recognized as essential, the demand for lawyer time has increased
so greatly that it is nearly impossible for government agencies to
handle their caseloads with their present attorney and staff allot-
ments. To increase these staffs means an increased tax burden,
so it is fortunate that there are eager, interested and energetic law
students who are willing to devote their time and effort to clinical
programs for credit instead of compensation. Law students pro-
vide a manpower resource to augment already overworked and un-
derstaffed offices . . ,45

Legal aid programs on a voluntary basis existed at many law schools,

but in order to increase the available student manpower, law schools
were urged to start new clinical efforts which would involve "lawyer-
client work for credit under law school faculty supervision." 46

Some noted that the students engaged in serving indigents should re-
ceive some incidental educational benefits, but in nearly all the early
writing relating to the current clinical movement, educational benefit
to students was secondary; community service was the main objective.47
Similarly, the early efforts of C.L.E.P.R. justified clinical educa-
tion in terms of community service. Law schools were to assist in meet-
ing the new demands on the bar by lending their aid to the "public de-
fender, legal aid, and neighborhood law offices ;" 48 the fields of law
emphasized by C.L.E.P.R. were those involved in the poverty programs
- criminal law, juvenile delinquency, landlord-tenant relations, family
law, consumer protection and welfare;49 and limitation on the clini-
cal program caseload was labeled "intellectual escapism." 50

45 Anderson & Kornblum, Clinical Legal Education: A Growing Reform , 57

A.B.A.J. 591 (1971). See also, Monagham, Gideon's Army: Student Soldiers , 45
B.U.L.Rev. 445 (1965); Brown, The Trumpet Sounds: Gideon - A First Call to
the Law Schools , 43 Texas L.Rev. 312 (1965).
46 Council on Legal Education for Professional Responsibility First Biennial
Report 12 (1971). [Hereinafter cited as C.L.E.P.R. Report].
47 Id. See also, Model Student Practice Rule: Clinical Education for Law
Students , 24 Ark.L.Rev. 367 (1970); Cleary, Law Students in Criminal Law Prac-
tice , 16 DePaul L.Rev. 1, 2-4 (1966); Comment, Legal Internship in Missouri , 31
Mo.L.Rev. 367 (1970); Comment, Student Practice - Limited Appearances in Court
by Third Year Law Students , 6 J.Richmond L.Rev. 152, 159 (1971).
48 1 C.L.E.P.R. Newsletter, no. 1, at 8 (Jan. 1969). See also, Pincus, Programs to
Supplement Law Offices for the Poor , 41 Notre Dame Lawyer 887 (1966) ; Pincus,
The Lawyer's Professional Responsibility , 22 J.Legal Ed. 1 (1969).
49 C.L.E.P.R. Report, at 23, 30-32.
«o C.L.E.P.R. Newsletter, no. 4, at 1 (Dec. 1969).

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 1974] CLINICAL LEGAL EDUCATION 175

To facilitate student aid to the bar, a major nati

was launched to get states to allow law students
certain circumstances. The campaign met with re
the end of 1970, thirty states had enacted studen
The format of service-oriented clinical program
the farming out of students to various communi
frequently the neighborhood law offices funded
nomic Opportunity. At the law offices students w
vision of a staff attorney. A member of the law
appointee is also responsible for supervision from th
on a part-time basis. A classroom component
program to orient students at the start and/or t
experiences during or after their field work. Stu
ed by special printed materials which usually co
by-step "how-to" outlines. Generally, student ca
loads of their supervising attorneys) are heavy; c
a wide spectrum of O.E.O. interest although the
almost invariably routine with a heavy emphasis
and non-support) and a smathering of consumer
ing), landlord-tenant law, welfare and other subje
limit their scope to the area of criminal law by send
lic defender and, more recently, prosecutor off
forswear the farming out of students to establish c
the law school.53 Such "in-house" clinics are also
law schools, being located in neighborhoods wher
can be found. In-house programs are generally th
ably more expensive, less wide-ranging in their
tentially more dangerous for embroiling the univ
than farm-out clinics.54 In-house clinics, howev
law school control over the educational experi
51 Council on Legal Education for Professional Responsib
mitting the Student Practice of Law: Comparisons and Co
52 Among various early legal aid-oriented programs at H
down by subjects ran as follows . . . Family law 45 to 79%, Consumer
Protection & Employment 10 to 20%, Housing 5 to 15%. Other prominent sub-
jects were Bankruptcy, Administrative Law, Welfare and Criminal Law. Ferren,
Goals , Models and Prospects for Clinical Legal Education , Chicago Conference
at 94, 120-24.
53 See, Cohen, The Law Office as a Law School : Two Experiments in New York
City , Chicago Conference at 204. Pincus, suvra. note 34. at 300.
Swords, The Public Service Responsibilities of the Bar : The Goal for Clini-
cal Legal Education, 25 U.Miami L.Rev. 267, 277-78 (1971); Ferren, The Teaching
Mission of the Legal Aid Clinic , 1969 L. & Social Order [Ariz.StL.J.] 37, 41;
La France, Clinical Education: "To Turn Ideas Into Effective Vision," 44 S.Cal.
L.Rev. 624 (1971) ; University of California, Berkeley, School of Law, Curriculum
Policy Study Committee Report: Proposal for Clinical Education at Boalt Hall
10 (1972).

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176 JOURNAL OF LEGAL EDUCATION [VOL. 26

creasingly, this has become a leading issue surrounding

ing.

The emphasis on community service during the early days of the cur-
rent clinical movement left little room for assuring the quality of stu-
dents' educational experience. The educational value was seen to lie
not in careful, disciplined teaching, but in the very exposure of students
to the "chaos" of actual legal work.55 The student should learn to func-
tion in the chaos, and in the process, he should also learn of the responsi-
bility of the profession for the delivery of legal services as well as de-
velop compassion for the poor.56

As clinical programs began operations, almost at once questions were

raised about the assumption that the goals of service and education are
compatible. Some advocates of service-oriented clinical programs admit-
ted the contradiction and frankly advocated that law schools should "sac-
rifice" for the community.57 For others, evidence of the educational
anemia of service-oriented programs led to disenchantment. Among the
charges, the "common pitfalls" were identified as "repetition, low-level
work, heavy caseloads, strain on students time, failure to focus on un-
derlying legal concepts and loose supervision." 58 The charges came
from many sources :

- Professor Ferren of Harvard warned of "mass produced medi-

ocrity" 59 and especially pointed to the problem of "inadequate
legal research." 60
- Professor Gorman of Pennsylvania saw a danger of "skepticism
and tolerance of sloppy work habits." 61
- Morton P. Cohen, the director of South Brooklyn Legal Serv-
ices, feared that service programs may teach students "poor hab-
its" including "representing without proper preparation." 62

55 C.L.E.P.R. Report, at 13.

56 2 C.L.E.P.R. Newsletter, no. 1 (Oct. 1969).
57 Carlin, Will Clinical Education Make It ? 3 C.L.E.P.R. Newsletter, no. 1, at 3
(Sept. 1970).
ßSMeltsner, Clinical Education at Columbia: The Columbia Legal Assistance
Resource , 24 J.Legal Ed. 237, 241 (1972).
59 Ferren, supra , note 54, at 42.
60 Ferren, supra , note 52, at 100.
61 Gorman, Proposals for Reform of Legal Education , 119 U.Pa.L.Rev. 845, 849
(1971). The danger of student cynicism bred by exposure to legal service work
was also pointed out by White, The Anatomy of a Clinical Law Course , Chicago
Conference at 158, 171; Note, Neighborhood Law Offices , 80 Harv.L.Rev. 805,
842 (1967); Paulsen, Involvement and Clinical Training: An Evaluation , 41 U.
Colo.L.Rev. 461 (1969); and Ferren, What is Legal Education Coming Tol 19
Harv.L.S.Bull. 10, 16 (1967), which cites a survey of law students revealing that
48% had less confidence in the legal system after exposure to legal aid work.
62 Cohen, supra , note 53, at 209. See also, Radane, The Story of H of stra Laic
School's In-House Clinic , 4 C.L.E.P.R. Newsletter, no. 9, at 1 (Feb. 1972).

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 1974] CLINICAL LEGAL EDUCATION 177

- And two of the earliest proponents of

poor, Professors Jean and Edgar Cahn war
article that clinical education must not be per
into "a grandiose abdication of responsibil
clinical programs be "subjected to the mos
form of intellectual scrutiny." 63
Others pointed to the limited subject coverage
grams as a factor greatly limiting their educat
Leleiko of New York University has predicted :
Unless, over a period of time, clinical exper
opening all avenues of experience for stude
branches of law and all segments of society it
cal programming will become a significant
cation.64

Some have also seen exploitation in the use of law students to help
meet a responsibility which the practicing bar should meet. Professor
Oaks of the University of Chicago (now President of Brigham Young
University) has said of service-oriented clinical programs:
unless superbly administered and controlled, they can result in
little education but considerable exploitation.65
Professor Klein of Wisconsin (now of U.C.L.A.) has also raised a
question about the appropriateness of using students to contribute to
society by the device of law school credit.66 Exploitation can be com-
pounded by the use of students for low-level tasks, such as simple li-
brary research, which fail to provide them experiences beyond what
they can gain in the law school.
Many of the problems are illustrated in an article by Professor Al-
len Redlich describing an early clinical program at the University of
Wisconsin. Wisconsin's initial effort at clinical teaching was, accord-
ing to Professor Redlich, "service-oriented ... as promoted by
C.L.E.P .R." 67 Although the failures of the program may have been due
to factors other than its service-orientation - factors such as poor design
or management which may have been unique to the program - the prob-
lems noted by Professor Redlich recur time after time in the literature

63 Cahn & E. Cahn, Power to the People or the Profession?- The Public Interest
in Public Interest Law . 79 Yale L.J. 1005. 1030 nft70V
64 Leleiko, Legal Education: Some Crucial Frontiers , 23 J.Legal Ed. 502, 516
(1971). See also, some good examples of limited programs in Ferren supra ,
note 61.

65 Oaks, Law Student Use by CJA Counsel , 14 Student Lawyer J. 3 (Dec. 1968).
See also, Ferren, supra , note 52. at 100.
66 Gorman, Clinical Legal Education : A Prospectus. 44 S. Cal. L Rev 537 556
n. 18 (1971).
67 Redlich, Perception of a Clinical Program , 44 S.CaLL.Rev. 574 (1971).

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178 JOURNAL OF LEGAL EDUCATION [VOL. 26

on clinical education. Most notably, Professor Redlich

inability or unwillingness of legal-aid attorneys to sup
cate students. He also refers to the students' disappoint
"mundane" nature of cases and detects a growth of "c
students about the role of the law in social change.
In a faculty report on clinical teaching prepared at th
Utah, similar problems were noted in linking the law
program to the O.E.O. neighborhood law office. The in
O.E.O. in maintaining a high caseload and in restricting
tain fields of law proved so confining for the educatio
law school that the severance of the link was recommende

(B) Law Reform

Disenchantment with service-oriented clinical program
law schools to abandon routine legal-aid cases as veh
teaching and turn instead to carefully selected test case
for accomplishing major reform in the law.69 Such pro
include efforts at legislative drafting, community orga
munity education.
The format of law-reform programs generally involve
ics. Clinical faculty usually act as litigators and studen
capacity they can. Limitation on caseloads, case selecti
erate, careful teamwork allows for considerable depth
programs. Cases can be thoroughly prepared, classroom
can slowly dissect each step in the procedure, and the
which the legal dispute takes place and is settled can be
ject matter is not restricted; at Rutgers, for example
been litigated or considered on educational finance, w
welfare rights, juveniles, civil rights, urban renewal and p
Subject matter may, however, be concentrated in on
such as at Boston College's Consumer Institute.
In spite of these advantages, however, law reform p
serious limitations as teaching devices. The actual litig
done not by the students, but by the faculty.70 Cases
and litigation protracted.71 Consequently, individual st

68 University of Utah College of Law, Report of the Committee on Clinical

Teaching (1971).
69 For a description of such a program, see, Metsner, supra , note 58. For a
discussion of law reform potentials, see Silver, Advocacy and Social Change:
The Role of Litigation (1971), mimeographed materials used by the clinical program
of the University of Southern California.
70 Professor Meltsner refers to his program as a "faculty litigator" model.
Meltsner, supra , note 58, at 238.
Carr, More on " Farm-Out 99 and " In-House 99 Clinics - The University of Toledo
Experience , 3 C.L.E.P.R. Newsletter, no. 7, at 3 (March 1971).

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 1974] CLINICAL LEGAL EDUCATION 179

ceive uneA^en, unpredictable, and fragmented ex

contribution of (and to) students can often consis
fragments of orthodox legal research, and the d
ploitation for partisan community purposes remai
the danger of involving the university in controv
been warned that such programs must carefully a
using clients as "guinea pigs." 72 It is also possib
subject matter may be restricted rather than bro
tion.73

Nevertheless, no programs appear better calculated to arouse student

enthusiasm than law-reform programs. The danger of developing stu-
dent cynicism toward the law, which many have noted in service-orient-
ed programs, is not to be found in law-reform programs - at least not
in the face of some victories. Of course, student enthusiasm for clini-
cal programs in general - even for service-oriented programs - appears
high.
Student support can no doubt be attributed to several factors - stu-
dent social-consciousness plays a large part, as well as student dissatis-
faction with traditional legal education, particularly with the boredom
of the case method in the second and third years of law school. The
low student-faculty ratios which accompany well supervised programs al-
so afford students opportunities to make some breakthrough from the
impersonality of the educational system.74
One commentator, Professor Stone of Harvard, a psychologist who
has worked with legal clinical programs, has noted that for students
who failed to make the law review, clinical programs also provide a
psychological opportunity to regain self-esteem.75 Professor Stone,
however, convincingly adds that educational programs cannot succeed
if their aim is simply "therapeutic," whether the intended therapy is
aimed at psychological benefit to the student, a placation of social urges
or an attempt to overcome boredom.76 Rather, Professor Stone con-
tends, the only way to insure the acceptance of any educational program
is to develop acceptance and respect for the value of the program as an
educational medium.77

™ Wilson, Clinical Programs at Boston University School of Laic , Chicago Con-

ference, at 176, 186.
73 Professor Ferren has noted that the "mix" of cases obtained from legal aid
should provide more variety than single, complex test cases. Ferren, supra , note 54,
at 41. The University of Utah College of Law, Report of the Committee on
Clinical Teaching has suggests a compromise, giving students a "routine case"
followed by a "substantial case" assigned to teams of students.
74 See, Young, Book Review . 1970 Utah L.Rev. 688. 695
75 Stone, supra , note 12, at 427.
7« Id. at 418, 427.
n Id.

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180 JOURNAL OF LEGAL EDUCATION [VOL. 26

Although clinical programs aimed at law reform eliminat

the chaos of service-oriented programs, they share with servi
programs the fact that their primary motivation is extrins
school. Professor Stone's warning that clinical programs m
themselves as educational tools is not without merit. Observations at
several law schools bear out that programs which appear aimed pri-
marily at extrinsic values bring on tensions within the law school. Even
the highly successful, well organized law reform program of Rutgers
suffers from a painfully evident isolation.

III. CLINICAL PROGRAMS WITHOUT CLIENTS

(A) The Participant-Observer Model

As clinical programs turn from extrinsic aims and adopt
goals, their attention frequently comes to focus on the institut
ting in which legal action takes place. As John Ferren has
[A] broad goal fostered by clinical experience is to gain
standing about the behavior of judicial and other gover
officials in areas where there are noteworthy delegatio
cretion, and to evaluate the impact of that discretion on peo
Rather than concentrate on litigation, clinical programs wi
tional interests often place students with a variety of public an
institutions; but the aim of such placement is not to have t
gain experience or give assistance, but to have the student
workings and social impact of the institution as a participan
The program can also take the form of a "task force" of stu
cally examining a given institution from a detached pos
teachers and students may be drawn from fields other than
Whenever possible, a classroom component is introduced t
the students' observations and to provide much-needed ins
empirical research methodology,79 and almost invariably,
written work is required to place the experience into focus.8
room component, however, is not insisted on, in order to allow
to be placed as "externs" with agencies too far from the law
commuting.81 In both the intern and extern programs, suffici
is usually granted to allow exclusive concentration on the clinic

78 Ferren, supra , note 52, at 95.

ï® See, Gorman, supra , note 66, at 551.
80 See, Shapo, An Internship Seminar for Law Students: A Test of Theory ,
A Critique of Practice , 46 Texas L.Rev. 479 (1968) ; Cohen, The University of
Texas * Criminal Justice Project: An Example of Involvement and Clinical Train-
ing , 41 U.Colo.L.Rev. 438 (1969).
81 See, Ehrlich & Headrick, The Changing Structure of Education at Stanford
Law School , 22 J.Legal Ed. 452, 461-62 (1970).

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 1974] CLINICAL LEGAL EDUCATION 181

Placement may be with a variety of agencies

with topics not usually dealt with in legal a
example, the University of California at Los An
dents in state, federal and private agencies dea
porations, probate and taxes.82 More tradition
also be incorporated by creating internships at
hospitals, model cities agencies, public interest law
cies or agencies involved in the criminal process.

No doubt, the participant-observer methodolo

cant insights into the functioning of institutio
ess. The methodology also has the advantage of
which might not otherwise be available. But th
the subject of some debate.

Professor Lefcoe, then of Yale, now of the U

California, has cautioned that the participant
counterproductive unless students are equippe
oretical base to allow generalizing from empir
[WJithout a useful set of organizing hypot
has its limits, particularly as an instruction
"out there" what we are prepared to see, and f
that would be precious little of enduring sig
tice . . . [S]o an apprenticeship unguided
set of norms gambles wantonly with the ch
apprentice worse at his job.83

Others have raised questions about whether

participant-observer model "clinical" inasmuch
involving the student in a one-to-one lawyer-clien
which has consistently insisted that, by defin
clude the involvement of law students in the "law
has pointedly stated :

future lawyers are not going through law s

conduct social science research projects on s
are going through law school to learn how
need legal services.85

82 University of California at Los Angeles, Clinical

First Annual Project Report (1971).
83 [Letter for G. Lefcoe to C. Meyers] Appendix C to the Report of the Committee
on Curriculum, 1968 A.A.L.S. Proceedings. Pt. 1. § 2. at 29.
84 it would be incorrect to characterize such programs as totally lacking in
student contact with clients - or at least with live legal problems. Contact is
simply not the primary aim of student placement. See, Sacks, supra , note 43, at
297-98 ; La France, supra . note 54. at 662.
85 2 C.L.E.P.R. Newsletter, no. 1, at 4 (Oct. 1969).

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182 JOURNAL OF LEGAL EDUCATION [VOL. 26

(B) The Problems of Practice

The debate on whether students should be involved in
relationships has ramifications broader than the parti
model. The use of live cases in any clinical setting - whe
quantity-oriented or carefully limited - of necessity intro
of unpredictability. One such element is timing;86 cas
poned, settled or processed with adequate time for prepara
cases can drag and run beyond the academic year. Facul
advisors must always be ready to assume the case if the st
to follow through.
Timing is also a problem in that once a case is active,
devote their attention to it. Thus, clinical students m
ignore the traditional courses which they take concurre
cal work.

Another problem is cost. It is generally assumed that clinical teach-

ing is expensive, particularly because the student- faculty ratio must be
low. The economical large classes which the case method of teaching
allows are not realistic, and law schools, long used to a student- faculty
ratio in the neighborhood of 20 to 1, must think of clinical programs
more in line with other graduate departments, where the ratios are
generally 6 to 1. Medicine is especially pertinent because of its long
experience in clinical teaching; its student- faculty ratio usually runs be-
tween 4 to 1 and 2 to I.87 It should not be relevant, however, to com-
pare the costs of clinical training to the costs of case-method courses.
The more relevant analogy would be to small seminars or other inno-
vative teaching methods in law school. A survey of the costs of clini-
cal education at New York University gives hope that the costs of clini-
cal education may be within reach for law schools.88 Because of the
possibly decisive nature of this problem for the future of clinical edu-
cation, C.L.E.P.R. has recently announced a national study of law school
financing to be conducted by Columbia.89
Still another problem is staffing. Dean Langdell's emphasis on
"learning law" as opposed to "using law" has left traditional law teach-
ers ill-equipped to design or supervise clinical programs. With Lang-
dell's ideas, teachers with practice experience have been shunned by law
schools.90 For clinical programs, however, such teachers are desperate-
ly needed, and traditional faculty members who would involve them-
86 See, White, supra , note 61, at 167-69.
87 Cregor & Glaser, Clinical Teaching in Medicine: Its Relevance to Legal Edu-
cation, Chicago Conference at 77, 88.
88 4 C.L.E.P.R. Newsletter, no. 8 (Jan. 1972).
89 4 C.L.E.P.R. Newsletter, no. 7 (Dec. 1971).
90 See, Boden, supra , note 24, at 107.

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 1974] CLINICAL LEGAL EDUCATION 183

selves in clinical teaching need to seek practice e

lems and tensions have arisen on some faculties
grant of faculty rank to the new type teacher n
grams and with respect to the desire of some non
quire practice experience rather than succumb to th
pressure to use all faculty spare time for research a

The use of actual cases may also present proble

volvement or its opposite, cynical detachment, both
difficult to handle.92 A similar concern has been
possible involvement of the university in cases
prove controversial.93 Acceptance of clinical program
bar may play a significant role in alleviating this
dications are that attorneys support clinical teaching
also evident especially as students representing th
sented are accused of using their alleged time ad
tactics which will cause attorneys to drop cases beca
er than merit.95

Possibilities of unauthorized practice by law

plagued clinical programs, as have questions rega
tional adequacy of student representation in cri
practice rules, however, have largely anticipated
satisfaction with the relative quality of student per
quieted fears.96

In addition, a number of administrative proble

clinical teaching. Credit hours are difficult to m
difficult to assign;98 and whether clinical work
be required of students has been debated.99 Depe
of the clinical work, transportation and office sta
lems. Access to xeroxing, phones and notaries an
»1 See, C.L.E.P.R. Report &-10.
92 Stone, supra , note 12, at 433. But see, Pincus, supra,
ing the need for educators to consider the student as a w
93 See, Sneed, Message From the President - Action P
Freedom , 21 J.Legal Ed. 217 (1968).
»4 in a survey of attorneys, 88% indicated favoring stude
legal problems and the courts." Dunn, Legal Education and
ticing Attorneys , 22 J.Legal Ed. 220, 226 (1969).
9® See, Fleisher, The Practice of Law by Law Students ,
125, 130-31 ; Wilson, supra , note 72, at 185.
9« Ferren, supra , note 52, at 113 ; Fleischer, supra , not
supra , note 45.
97 Brickman, Clinical Education : Polemics and Pragmatics , 3 C.L.E.P.R. News-
letter, no. 5, at 1, 3 (Feb. 1971).
9« Id. at 2.

99 Compare, C.L.E.P.R. Report 13, and Gorman, supra , note 66, at 569.

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184 JOURNAL OF LEGAL EDUCATION [Vol. 26

detailed problems need to be ironed out. In short, the ro

schools have to be adjusted to take into consideration th
group of practitioners. The adjustments are not always
clinical teacher has put it, the problems of clinical teachin
fied somewhat by the unfamiliarity of school administra
with the pace and needs of a practicing lawyer." 100

(C) Simulation
In order to minimize the costs and administrative problems of clini-
cal programs, the suggestion has been made that the lawyer-client re-
lationship be totally abandoned and that simulated cases be used. In
particular, one influential body, the Curriculum Study Project of the
Association of American Law Schools has stated the case for simu-
lated clinical training in detail :

[C] linical education . . . cannot withstand a cost-benefit

analysis as a dominant method of instruction. The problem or
simulated clinical method is far more efficient as a means of trans-
mitting most of the skills which are suitable objects of study.
There is no legal clinic which compares to a hospital in the variety
of experiences it can provide; such variety can be provided by
simulation. Clinical work necessarily features much legal mechan-
ics; simulation avoids the deadening routine of the standardized
task. Liberated from the needs of clients, simulated clinical ex-
periences can more easily fit academic schedules and calendars. A
clinical method which introduces real clients into the teaching ac-
tivity distracts both teacher and student from one another and
from the learning process to the pressing needs of clients . . .
Yet another difficulty with a larger commitment to the use of
teaching clinics is the staffing problem created. The clients of the
clinic need attention even when the students are unavailable. The
remaining burden must fall on the faculty supervisors. As a re-
sult, the problem of recruiting and retaining faculty staff for in-
tensive instruction is compounded. The teacher willing and able
to give both effective personal supervision to students and effec-
tive service to clients is difficult enough to find; it is perhaps too
much to expect such persons to be also devoted to intellectual in-
quiry.
The disadvantaged clients who are served by the teaching clin-
ics might be seen to benefit substantially by a greater abundance of
services. But this benefit is subject to a substantial discount because

íooMeltsner, supra, note 58, at 241.

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1974] CLINICAL LEGAL EDUCATION 185

the working professionals are distracted from cl

competing claims of the students.101
On the other hand, others who have considered si
cluded that it should not entirely replace the live
using live cases is seen to lie in the increase in int
which it provides for students 102 and in the incr
awareness which should result from exposure, per
time in some students' lives, to social problems. Th
provide a long-range "service" by influencing stu
and thereby increasing the availability of the legal se
It can also help greatly in allowing students insights i
sonalities and motivations and into the art of human relations.104 The
A.A.L.S. study project was skeptical of these reasons:
Perhaps some students may become more sensitive to difficult
social problems by reason of work in such clinics. But it would
be hard to find a correlation between such experience and concern
for social justice; if the present bar is insensitive, it is not because
its members are not exposed to reality. Moreover, mere exposure
to social problems can be acquired by far less expensive means than
teaching clinics. There is also the risk that the teaching clinic
designed for these purposes can be used by students as an escape
from the intellectual rigors of sound professional training if such
clinics are assigned a dominant place in the curriculum.105
No doubt, simulation will come to be employed, as some clinical pro-
grams already employ it, as a supplementary teaching device in the
classroom component of programs. However, there is strong evidence
of student enthusiasm for live cases 106 and it is difficult to foresee the
total elimination of live cases from clinical teaching in the near future.
The failure of practice courts in the not distant past compares dismally
with the degree of attention and enthusiasm aroused by current experi-
ments with live clinical cases. It may simply be impossible to recreate in
a simulated setting the emotional and ethical elements of law practice.

loi Association of American Law Schools, Curriculum Study Project, Training

for the Public Profession of the Law: 1971, 1971 A.A.L.S. Proceedings, Pt. 1, § 2,
at 41.
102 See, Bellow & Johnson, Reflections on the University of Southern California
Clinical Semester , 44 S.Cal.L.Rev. 664, 693 (1971).
103 See Silberman, Educational Trends and the Law , 4 C.L.E.P.R. Newsletter,
no. 2 (Aug. 1971).
104 See, Stone, supra , note 12, at 429 ; Ferren, supra , note 54. Gozanski, Inter-
mewing and Counseling Workshops , 3 C.L.E.P.R. Newsletter, no. 6 (March 1971).
ios Association of American Law Schools, sunra. note 101. at 41.
io« M. King, Report on Law Students in Corrections Conference , 15 Student
Lawyer J. 4 (May 1970). The continuing popularity of the live case as a teaching
device may also be indicative of the persistence of the "service" motivation in
clinical education.

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 186 JOURNAL OF LEGAL EDUCATION [VOL. 26

Yet, while the demise of the lawyer-client relationship can

pected, neither can it be expected that all forms of clinical teac
center on live cases. In particular, the participant-observer
should receive opportunities to establish their value. Neither
on the lawyer-client relationship, nor concern with methodolog
block participant-observer experiments, even if their initial
merely intuitive.

IV. CLINICAL PROGRAMS FOR EDUCATION

(A) The Teaching Model

A new consensus is emerging, basing the rationale of the clinical
od not on service, not on law reform, not on research results,
education. Even C.L.E.P.R. has come to accept the predominance
"academic" ends of clinical programs,107 although, in the tran
C.L.E.P.R. and much of clinical legal education may have devel
own strain of schizophrenia.108
The trend toward using the clinical method as an educational t
led different observers to recommend different devices. The number
one prescription, repeated almost as a ritual incantation in recent writ-
ings on clinical education, is "supervision." Tight law school control,
with careful selection of clinical faculty and cooperating attorneys, plus
a low student-faculty ratio should enable the clinical program to re-
move much of the "chaos" of legal work and ensure a guided learning
experience. In addition, a strict limitation on student caseloads, coupled
with the careful selection of cases with educational potential should
leave students time to reflect and maintain their interest. To structure
their reflection, an orientation program prior to fieldwork and class-
room component during and after fieldwork are almost universally rec-
ommended, not merely to provide practical "how-to" information, but
also to focus students' attention on individual, professional and institu-
tional roles underlying the legal process. Clinical teaching materials
similarly expand from practical outlines of procedural and substantive
law to interdisciplinary materials on the legal process. There is dis-

107 Pincus, supra , note 34.

108 The student report on clinical education from Boalt Hall, supra , note 54, at
4-5 states :
Clinical programs have often suffered in the past from a schizophrenic con-
flict between their desire to perform a social service and their attempt to pro-
vide a meaningful educational experience for the students. We rather doubt
that loosing a group of law students on an unsuspecting world will or could
effect a major improvement in the quality of life. Therefore, despite our sym-
pathy for those who would use the law as an instrument for social change, we
firmly base our argument for an expanded clinical experience on its unique edu-
cational value for students.

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1974] CLINICAL LEGAL EDUCATION 187

agreement, however, on the value of requiring a

device to have students integrate the clinical exp
conflicts with traditional courses, and to allow suffic
ingful clinical work, some advocate devoting a fu
year to clinical work exclusively.110 C.L.E.P.R. has
ing preference for such programs.111

Service, law reform and education are not mutu

same types of cases used in service-oriented or la
may be used for predominantly educational objec
tion lies in the amount of supervision and classro
panying the clinical experience.112 The education
ever, is not assured merely by the commitment o
vision and instruction. Questions remain as to pr
learned in the clinical setting, and why the clinical m
ployed to teach it. Is clinical education, as one cr
"formless experiment?"113 C.L.E.P.R. has issued t
the absence of some adequate definition of edu
dangers continued acceptance of clinical progra
ously impeding efforts at solving practical proble

(B) Skills Training

The most commonly-cited educational justificat
method is "skills training." As the Director of C
"the real mission of the law school . . . is to
ers." 115 Professor Ferren, then of Harvard explains

The first goal [of clinical experience] is the tea

skills . Essentially the legal skills emphasis accepts the
prevailing legal system, perhaps not too critically, and teaches the
student how to operate effectively within it.

Particular skills pursued are :

1. Client interviewing and counseling; this includes diag-
nosing the problem, making appropriate referrals when
necessary to professionals of other disciplines, such as

109 Compare, Gorman, supra , note 66, at 560, and Brickman, supra , note 97, at 2.
no See, Bellow & Johnson, supra , note 102, at 683 ; Leleiko, supra , note 64, at
513. The clinical law school is also in the wind. Antioch's new school of law
proposes to be the first, although the "work-study" program of Northeastern may
lay claim to pioneering in this area.
m 3 C.L.E.P.R. Newsletter, no. 10 (Apr. 1971).
112 See, Ferren, supra , note 52.
113 [Lefcoe], supra , note 83, at 32.
114 3 C.L.E.P.R. Newsletter, no. 10. at 2 (May 1971).
11« Pincus, supra, note 34, at 291.
26 Journal of Legal Ed. No.2 - 5

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 188 JOURNAL OF LEGAL EDUCATION [VOL. 26

social workers and psychiatrists, and functioni

occasion as part of an interdisciplinary team.
2. Fact gathering and sifting.
3. Legal research into the problem.
4. Decision-making about alternative strategies.
5. Negotiation.
6. Professional responsibility - application of ethical canons
to specific cases.
7. Preparation for trial and appeal ; advocacy before tri-
bunals.

8. "Packaging" a business arrangement or community de-

velopment project, or planning one's personal affairs,
including the drafting of legal documents.116

With the exception of service-oriented clinical programs, no other

aspect of clinical legal education has given rise to as much debate as
"skills-training." Many see skills-training as the only educational goal
of clinical education and, therefore, direct the debate on the merits of
clinical education into a debate on whether law schools should teach
practice skills.

The identification of clinical programs with skills training is per-

haps facilitated by the seeming over-reliance of some proponents of
clinical education on the argument that clinical programs are needed
because the traditional law school curriculum fails to equip students for
practice. It is universally conceded that the traditional law school cur-
riculum fails in this respect; it is also clear that the relative lack of
barriers between graduation from law school and full admission to the
practicing bar leaves the public exposed to the danger of incompetent
neophyte lawyers; and it is also clear that reliance on voluntary
law office apprenticeship to provide the basic skills is at best an uneven,
partial answer, effective perhaps, only for the top students of the top
law schools, who go into the largest firms or into government offices.117
Yet, the law school world has long resisted efforts - such as those
of the 1950's - to have practical training grafted onto the law school
curriculum. Perhaps part of the explanation lies in the remnants of the
pre-Langdellian fear of legal educators that law schools need to be
jealous of their "academic respectability" on campus and, therefore, must
avoid any semblance of a "vocational trade school." Perhaps, too, law

lie Ferren, supra , note 52, at 94-5.

li" Despite these concerns, very little data is available on now young lawyers
acquire practice skills, and how they function before and during the acquisition
of such skills.

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1974] CLINICAL LEGAL EDUCATION 189

schools have stuck to "theoretical" training be

inability, intellectual snobbery or some of the ot
tions which advocates of practical training occa
Some opponents of skills training assert that it
ture of law schools to provide such training.
Most importantly, the "how to of thinking"
to of doing" must be the principal concern o
study, problem analysis and exposition, a searc
abstract principles of law, are clearly more
within the practical competence of law schoo
of where to file what in order to perfect a lien.1
And again :
Maybe the law schools should be catalysts for helping the law
firms to improve the quality of their in-service training programs.
Maybe we should even assist in the formation of non-profit train-
ing centers. But the role of the law school should remain one step
detached ; we should focus mainly on designing and appraising these
efforts, to performing what Lasswell and McDougal would call
the intelligence functions. We should refrain from trying to staff
or manage such intern programs because our skills and the re-
sources of the university are not in operating but observing, not in
managing but studying management, not in making sound decisions
but in reflecting on the decision-making process. The law school
is in my view a poor refuge for the frustrated poverty lawyer, law
office business manager, legislator, or even urban planner.119
Others raise more specific objections. Some oppose skills training
because of its "alleged lack of intellectual content" 120 or, on the ground
that skills are not "teachable" 121 and not "testable." 122 Others point to
the fact that specific skills, much like substantive legal rules, are too sub-
ject to obsolescence.
[T]he tricks of the trade cannot be learned in a university, and
. . . if they can be, they should not be. They cannot be learned
at a university because they get out of date and new tricks take
their place, because the teachers get out of date and cannot keep
up with current tricks, and because tricks can be learned only in the
actual situation in which they are employed.123
il» Note, supra , note 3, at 721.
il® [Lefcoe], supra , note 83, at 32.
120 Ferren, supra , note 52.
121 McClain, supra , note 38, at 123.
122 See Stolz, supra , note 2, at 61.
123 R. Hutchins, Higher Learning in America 43, 47 (1936) quoted in Silverman,
The Practitioner as a Law Teacher , 23 J.Legal Ed. 424, 427 (1971).

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 190 JOURNAL OF LEGAL EDUCATION [VOL. 26

So, today, the proponents of this view can point to present

paraprofessional training,124 the present trend toward speci
practice 125 and the dramatic increase in the number of new la
as a few of the indications signifying changes in lawyers' tasks.
Still other factors bear on the ability of law schools to engage
training. It has been pointed out that the intended career patte
students are so diverse, that law schools cannot hope to prepare
practice.127 It is also alleged that there is no time for both
practice, since law schools are already experiencing a "c
squeeze" due to the increase in substantive subjects.128
Moreover, even with practical training in law schools, th
would have no assurance of the ability of neophyte attorneys to
since it is widely agreed that no amount of practical train
school can truly equip students with the skill to handle every le
lem immediately upon graduation; at least the myriads of sp
which Cantrall 129 enumerates must await being learned in p
ate practice.
Perhaps the most frequent allegation in opposition to skills tr
that skills training should be the job of the bar, not of the law
Considering that practical techniques and expertise can be
quired while practicing, and that substantive law and th
knowledge can best be learned in the institutional setting, th
lent attitude of educators seems correct - that the law school should
not take the full responsibility of training students in practical mat-
ters, but should leave such skills to be acquired after graduation.130
Dean McClain has pointed out that if the bar becomes sufficiently con-
cerned about the danger of neophyte incompetence, the bar has it within
its power to do something about it.131 Controlled and carefully supervis-
ed apprenticeship, effective continuing education programs or other de-
vices remain possibilities. Ontario has instituted a combination of ap-
prenticeship and continuing education as a prerequisite to bar admission
and, by all reports, the results are favorable.132 The widely praised
124 See, University of Denver, College of Law. New Careers in Law (1971).
125 Greenwood & Frederickson, Specialization in the Medical and Legal Profes-
sions (1964).
126 Ruud, The Burgeoning Law School Enrollment , 58 A.B.A.J. 146 (1972).
127 Vukovich, The Lack of Practical Training in Law Schools: Criticisms ,
Causes and Programs for Change , 23 Case W.Res.L.Rev. 140, 146 (1971).
128 Note, supra , note 3, at 729.
129 See text accompanying note 37. at 14. suora.
130 Vukovich, supra , note 126, at 152. See also, Gorman, supra , note 66, at 556,
n. 18, quoting Professor Klein ; McClain, supra , note 38.
131 McClain, supra , note 38.
132 Great Britain, Committee on Legal Education, Report 30 (1971). Thompson,
Canadian Experience in Practice Training , 16 J.Legal Ed. 43 (1963). See also,

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 1974] CLINICAL LEGAL EDUCATION 191

Prettyman Fellowships, which involved recent law

practice situations, also present a possible mod
that the current clinical movement started in
was increasing its attention to training new lawy
"bridge the gap" programs throughout the cou
ginning for the bar assuming the tasks of skills tr
The debate, however, does not stop here, for
stop at skills training. Inexorably, the teaching
leads to a quest for intellectual penetration of
practice skills are but surface manifestations and
the unique contribution of clinical teaching m
vides an example :
No useful line can be drawn, for example, betw
as a skill (which may suggest mere manipula
derstanding of the client as a human being wh
act to the law and official discretion in part
his background and present situation.135

(C) From Practice to Theory

Perhaps the reason why skills training alone
of clinical education is because few legal educ
tional - are satisfied to define their objectives
tioners and nothing more. When the role of
viewed, it is evident that their training shou
Ferren put it, "preparation . . . for genera
and social leadership and law-related resear
ciety as a whole." 136 At the same time, Prof
"any program which involves students in legal
ment of skills training, since educational value is

Jarmel, The New Jersey Skills Training Course , 17

scribing New Jersey's experience in combining appren
course.

!33 See, Pye, Legal Internships: Georgetown's Experiment in Legal Edu

49 A.B. A. J. 554 (1963). The possibility of 'two-track' law schools has a
raised - separate programs could be devised for teaching practitioners
tical curriculum and for teaching scholars in a program resembling th
of Ph.D.'s. See, Bergin, supra , note 23.
134 See, J oint Committee on Continuing Legal Education of the Ame
Institute and the American Bar Association, Meeting the Education
the Newly Admitted Lawyer: A Proposal for General Practice Cour
Draft (1967) ; National Conference on the Continuing Education of the
Continuing Legal Education for Professional Competence and Responsibil
-2d, Toward Excellence in Continuing Legal Education (1964). The S
ference called for a two-to-six months Bar-administered skills cour
requisite for bar admission. Id. at 25.
135 Ferren, supra , note 52, at 105.
136 id., at 98.

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192 JOURNAL OF LEGAL EDUCATION [VOL. 26

(minimum) quality" 137 of student performance. Questi

be asked about what, in addition to skills, the clinical meth
and why the clinical method should be used to teach it
of skills training with deeper theoretical concerns may lie
clinical legal education.
An interesting example is provided by the University
Minnesota's in-house clinic carefully prevented the bad
service-oriented programs by low case loads, selected ca
vision, classroom instruction, and superbly organized re
each student and each case. The educational goals of the
initially modest: The classroom component, the studen
terials and the supervision aimed simply to acquaint studen
letter substantive and procedural rules and to guide studen
craftsman-like legal work. However, as the program wa
a solid administrative footing, its momentum led to br
non-clinical faculty members started to be involved in
dents working on cases in their fields and the director of
research assistants to help develop materials on the bro
the administration of justice.

Perhaps the programs furthest advanced toward the goal

clinical method for education are those at the Universi
California and at Harvard where the involvement of students in cases is
utilized as an occasion to induce introspection into what is called the
"lawyering process." 138 The aim is to develop "models of problem-solv-
ing and decision-making in the performance of lawyer tasks," 139 and
thereby create a sense of professional self-examination which neither le-
gal education nor the legal profession has adequately promoted in the
past.

A variety of methods - live cases, simulations and internships are em-

ployed. The hope is that the exposure will test hypotheses and allow gen-
eralizations about such enduring and transferable functions as interview-
ing, fact gathering, counseling, negotiation, advocacy, drafting, planning
and the whole range of attorneys' human relations, as well as "problems
of role, personal interactions, purpose, perception and communica-
tion." 140 In the process, skills are developed as a necessary foundation
of theoretical insights and considerable interdisciplinary study is in-
volved in the examination of the influence of personality, of the pro-
fession, of society, and of institutions on the legal process. For ex-
137 id., at 111.
138 Bellow & Johnson, supra, note 102, at 693.
139 id., at 671.
140 id., at 673.

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 1974] CLINICAL LEGAL EDUCATION 193

ample, the teaching materials prepared at Harv

in decision theory, role definition, interviewing,
fact development, ethics, counseling, negotiatio
guage.

As the clinical method seeks to encourage students to reflect on their

roles as participants in and students of the legal process, the element of
introspection extends to the teaching-learning process as well. In legal
education, where the case-Socratic method has been so entrenched that
questions of pedagogy have received little attention, clinical educators
have brought about an exhilarating renewal of interest in basic questions
of teaching methodology. Being constantly challenged to justify them-
selves, clinical instructors have to some extent succeeded in holding a
mirror up to the rest of the law school world. As Professor Young,
then of the University of Utah, expressed, the validity of the clinical
methodology cannot be weighed without "a goal-oriented, functional
analysis" of all of legal education.142

The programs which use the clinical method for theoretical under-
standing hold exciting possibilities of revitalizing all of legal education.
They hold a promise of becoming not merely a supplement to the case
method, but an alternative to it. In an interesting turning of the tables,
it can be argued that the case method is too "practical" and lacking in
theoretical insights. (It is, after all, based on one element of legal reality
- the appellate opinion - and it has been subjected to very little examina-
tion as a pedagogical device. )

Much rhetoric has been spent on the desirability of "integrating" clin-

ical programs with the law school curriculum, but the chasm between the
clinic and the law school remains. Neither service nor law reform nor
skills training as clinical goals provide sufficient incentives for the law
school faculty as a whole to develop an interest in the clinic. Perhaps
such interest will come only when practice exposure is used in the sense
President Levi of the University of Chicago recommends :

A clinic can focus attention on the difference between actual prob-

lems and the problems in the books. It can guide theory so that it
arises out of cases and fits the needs of the people involved. Re-
search, law teaching and law-making always must be, in a sense,
theoretical.143

i4i Bellow, Conflict Resolution and the Lawyering Process: Materials for the
Clinical Teaching of Law (1971), mimeographed, but soon to be published by Founda*
tion Press.
142 Young, supra , note 74, at 693.
143 E. Levi, Four Talks on Legal Education 24 (1952), quoted in McGee, U
versities, Law Schools and Communities: Learning or Service or Learning
Service f 22 J.Legal Ed. 37 (1969).

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