Transcript Reforming Legal Education Presentation

REFORMING LEGAL EDUCATION
Training Law Students to Become More Skilled and
Ethical Lawyers: A Clinical Legal Education
Perspective
WITS PUBLIC INTEREST LAW GATHERING
2 DECEMBER 2011
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Council for Higher Education: The
LLB Curriculum Research Report
• Large-scale survey undertaken of legal academics and practitioners about
the preparedness of LLB graduates for the practice of law
• 2,514 practitioners and 351 legal academics responded
• Findings:
– ability to understand, analyse, investigate and solve problems;
– proficiency in reading, writing and speaking English;
– ability to read and interpret statutes and legal documents;
– ability to construct and communicate an argument;
– understanding of the principles of SA law and how they apply in
practice; and
– research skills, both in general and specific to the profession.
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Contemporary Clinical Legal
Education
• “..the essence of clinical legal education is a teaching
methodology used by competent , experienced educators who
attempt through lectures, discussions, exercises and real
experiences to help students learn about the interplay between
theory and practice as well as gain the skills and values they
need if they are to become competent lawyers. The clinical
methodology is not limited to in- house live client clinics but
can be employed in different formats.”
• Rodney J. Uphoff, Why in-house live client clinics won’t work in
Romania: Confessions of a clinical educator, 6 Clinical L Review
315 199- 2000. Pg 328.
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Introduction
• Most effective method of learning includes
the integration of theory, application and
reflection
• What better way to do this then to consider
adopting a teaching methodology that
incorporates all of the above
• Clinical legal education
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Definition of Clinical Legal
Education
• Trite that before a discussion on the actual definition
of CLE is advanced – semantics behind the words CLE
or clinical be advanced
• The word clinic originates from practice of medicine
and is defined as “a building
where outpatients receive medical treatment
or advice” (Collins dictionary, Elison Khan,
Swanepoel)
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Continued
• Within the legal environment “clinic” is synonymous
with the service delivery environment accompanied
by the real client
• According to Menon – he noted “ in the context of
legal education, it refers to any law school course or
programme in which law students participate in
doing what lawyers usually do including
representation of clients under the supervision of a
lawyer/ teacher”
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Definition of CLE - conservative vs.
liberal approach
• A reflection on the definition of CLE over the last century
illustrates a shift from the more conservative to a liberal
approach
• Conservatives noting CLE as an isolated course that
teaches students lawyering skills – limited to the live
client clinic
• Liberals – advance CLE as a teaching methodology and
propose the use of different methods and incorporation
of the CLE methodology into the broader LLB degree.
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Continued
• Conservatives – Willem Pincus, McQuoid – Mason
who defined CLE as teaching legal skills in a social
justice context
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Continued
• Liberals remember that although no lesser value
should be attached to the role that access to justice
attaches to CLE, confining CLE within the limited
dimensions of a live client interaction will be an
injustice to the true value that the course can
promote.
• In this era of reflections of law degrees and the
discussions of integration of skills required by
professional education, the examples that CLE can
potentially deliver to law schools should not be
underestimated.
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PROPONENTS OF CLE
• Liberal academics include: Gary Bellow (1973)
• Mark Siegel (1986 – 1987),
• Peter Hoffman in (1994) argues that skills training as
opposed to exclusive live client model be considered
as the central goal of CLE
• Uphoff (2000) Roy Stuckey (2007)
• African authors include Ojienda and Odour when
they talk on the CLE program at Moi University in
Kenya
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MORE PROPONENTS
• In SA in 1973 – John Dugard proposed
recommendations for the integration of the clinical
methodology into main stream courses.
• In 2007 – De Klerk submitted that “ clinical legal
education is not a course or subject, as typically
packaged in the law degree, but is in fact a teaching
methodology.”
• Both Stuckey and De Klerk advocate for the use of a
variety of methods
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US Experience With CLE
• McCrate Report (1992) – American Bar Association
published Report of the Task Force on Law Schools and the Profession
– Provides “Statement of Fundamental Lawyering Skills and Professional Values”
which are essential for competent representation, including that a lawyer
should:
(1) attain a level of competence in one’s own field of practice,
(2) maintain a level of competence in one’s own field of practice, and
(3) represent clients in a competent manner
– The Report emphasized the value to law students of practice-oriented
instruction, including clinics, externships and simulations.
– Recognized the value of part-time employment during the academic year as a
complement to classroom instruction.
– Under the topic of transition into practice, the Report notes that
apprenticeships have fallen into disfavor in the United States, but are generally
required in the Commonwealth jurisdictions.
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US Experience With CLE
Carnegie Report (2007) – Carnegie Foundation for the
Advancement of Teaching published Educating Lawyers: Preparing for
the Profession of Law
– survey of 16 law schools in US and Canada
– current law school curriculum is too focused on the case-dialogue method, which is
narrow and does not teach students how to deal with people or complex situations
– teaches students how to “think like a lawyer,” but provides no guidance for understanding
social consequences or ethical aspects of legal conclusions it creates
– law schools’ assessment of student learning is underdeveloped, formative assessments
directed toward improved learning ought to be a primary form of assessment in legal
education.
– concludes that there should be comprehensive rather than incremental improvements to
address lawyering skills and professionalism. Finally, the Carnegie team proposed an
“integrative model” for law schools, which “addresses the problem of the larger
curriculum, particularly what should happen in the third year. In most schools, curriculum
lacks clear shape or purpose.”
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Carnegie Cont’d
•
•
•
•
The dramatic results of the first year of law school’s emphasis on well-honed skills of legal
analysis should be matched by similarly strong skill in serving clients and a solid ethical
grounding.
Only casual attention paid to teaching students how to use legal thinking in the complexity of
actual law practice with the result being to prolong and reinforce the habits of thinking like a
student rather than an apprentice practitioner
Law schools fail to complement the focus on skill in legal analyses with effective support for
developing ethical and social skills. students need opportunities to learn about, reflect on and
practice the responsibilities of legal professionals. To engage the moral imagination of students
as they move toward professional practice, seminaries and medical, business and engineering
schools employ well-elaborated case studies of professional work. Law schools, which
pioneered the use of case teaching, only occasionally do so.
Law schools should offer an integrated, three-part curriculum: (1) the teaching of legal
doctrine and analysis, which provides the basis for professional growth; (2) introduction to the
several facets of practice included under the rubric of lawyering, leading to acting with
responsibility for clients; and (3) exploration and assumption of the identity, values and
dispositions consonant with the fundamental purposes of the legal profession. Integrating the
three parts of legal education would better prepare students for the varied demands of
professional legal work.
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In 2011, Prof. Geo Quinot (Stellenbosch) used the frame of
“transformative constitutionalism” to advocate for more
practical contextual training in legal education:
• Law graduates should be equipped to drive social
transformation and be innovators under the Constitution, not
just technicians.
• Law teachers must assume their role in the transformative
project. How we teach law will shape the next generation’s
perception of law and its role in the country.
• Students need to become active participants in the
construction of knowledge, and to challenge authoritative
viewpoints.
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LEGAL PRACTICE BILL
• Compulsory Community Service Proposed for
All Law Graduates
• Minister of Justice and Constitutional Devt
Radebe pushing to table Bill in Parliament by
end of 2011
• Skills and ethics training is ideal to prepare
graduates for this undertaking
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Curricular Innovations
 Wits Integrate Skills Curriculum 2012
 Clinical Group Work undertaken by the Human
Rights and Democratisation in Africa LLM
Programme at Pretoria
 Wits Refugee Clinic / Human Rights Clinic
 UCT CLASI Public Interest Lawyering Seminar
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Questions
1.
Do all students have a right to tertiary education, and if so, to a quality
right to tertiary education?
1.
How do we bring law faculties in line with imperatives of “transformative
constitutionalism” – of “strengthening the democratic ethos, the sense of
common citizenship and commitment to a common good”?
1.
What kind of empirical research is necessary in SA to advance CLE?
2.
What is the contemporary role that access to justice plays within CLE?
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Questions Cont’d
5.
Is there a role for externships in the broader integrated LLB curriculum?
6.
Do you train and monitor lecturers on their integration of skills into
courses? If so, how?
7.
How should these traditional courses be assessed?
8.
In a clinical setting, how do you reconcile client interests where the stakes
are high with students’ educational interests?
9.
How do we impress upon students the importance of non-traditional
clinical work?
10. Will an integrated skills curriculum and other curricular innovations lead
to higher quality law graduates and/or higher throughput rates for law
schools?
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To Be Continued….
• Introducing CLE Research Working Group
• Please join us for our first meeting at 12:15 pm
THANK YOU!!
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