Professional Documents
Culture Documents
Citation:
Max Weaver, Clinical Legal Education - Competing
Perspectives, 17 Law Tchr. 1 (1983)
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Service/welfare model
This is treated first because in the history of clinical legal education it
has a primary role. Law clinics are the creatures of moves in the 1960s to
the 'great society' in the U.S.A. The first worthwhile source of funds was
the Office of Economic Opportunity. The model still has a powerful
influence.
In its pure form its principal purpose is to deliver legal services to those
who could not otherwise afford them, to right wrongs that would otherwise
go without redress. It may raise students' consciousness of inequality and
injustice and provide the academic with the means of salving his conscience.
Deep study has revealed to him that the law, as it operates in a bourgeois
society, tends to preserve privilege and deepen disadvantage. Now he can do
something about it-and the salary security is not forfeit.
There are two fundamental problems with this model. First, what has
all this to do with legal education? It is experience, but atypical and lacking
the normal degree of professional detachment and disinterest. It fails to ask
why experience is good or what use can be made of that experience in the
law school curriculum, seen as a whole.
Second, the focus is on the student and the academic supervisor. What
are they doing to change the world? What of the client? Does the client
get the service which our service clinicians would agree he or she deserves?
The quality of supervision, especially the legal experience of the supervisors
and insurance arrangements, are key factors in the solution of this second
problem. In some medical schools, would-be surgeons practice on cadavers
where, as in Barnett v. Chelsea and Kensington Hospital Management
Committee3 , mistakes lack causal significance.
Some black sheep
Even this brief discussion of the service/welfare model may have indi-
cated that the family of clinical models, despite its well-intentioned parent-
age, contains some black sheep. It may be as well to list them so that we too
can shun and avoid them when we get the opportunity.
The trend-setter model: it is necessary to do something different thus
change for change's sake.
The trend-follower model: it is necessary to do something different but
one lacks originality.
The hobby model: lecturing for thirty-five weeks out of fifty-two is hard
[196911 Q.B. 428.
CLINICAL LEGAL EDUCATION-COMPETING PERSPECTIVES 5
graft. One needs a change, relaxation, free from the pressure of students
who check The Times every day, or the need to get the footnote references
right.
The mountaineer's model: this has great currency in legal education
generally but clinical education is as yet too new to have been its frequent
object. When asked why strict settlements are taught the answer is often
little better than the mountaineer's answer, "Because they are there!" There
are better reasons, of course, for teaching strict settlements if not for
climbing mountains, but a pure mountaineer is no more inclined to look
for them than his less conservative brethren, the trend-setter and the trend-
follower.
The glamorous model: underneath the glamorous exterior there is a
lust for power. There is glamour and excitement in the legal process and in
being concerned with real people. On one's own actions depend beneficial
or adverse consequences in the real world. It flatters one's vanity to be so
significant, but this vanity feeds off a desire for power over people that can
too easily demean the client. This model has close relatives in the main-
stream of the profession. After talking briefly to a young barrister you will,
as likely as not, come to appreciate that the Bar is where it's really at.
4. SIMULATION
Can the substitute be as good as or better than the real thing? Opportunities
for the real thing are more restricted in the U.K. than in the U.S.A. Fewer
academics commute successfully between practice and scholarship and our
divided profession seems over-defensive. It will be some time before English
judges have, as do the lower courts in Washington D.C., a list of law
students to whom the indigent litigant can be referred for legal advice and
assistance. Perhaps because we have a more developed apprentice stage
it is more difficult to engage in real client clinical work in the law school.
The demands of law school clinicians can be too easily rebuffed by the
arguments that they are merely duplicating professional training, un-
necessarily and probably incompetently.
For the U.K. law school access to tribunals and McKenzie-man tech-
niques5 may not suffice, though they have great potential. This writer prefers
to see them as providing the best opportunities for clinical experience which
should be supported by careful preparation in the law school and advice
centre, using simulation techniques sometimes as an end in themselves.
This is not merely to make a virtue of necessity. The simulation loses
something by comparison with reality, but students rapidly adjust to role-
playing if it is well prepared. The preparation is expensive but it can be done
when staff choose and some of it is re-usable. The client's interest is safe-
guarded and the programme can be controlled. The scope of exercises can
be limited and modified to fit with the timetable and to exploit the potential
of particular students. One can even re-run parts of a simulation in a way
that would hardly meet with judicial approval.
5. OPPORTUNITY COSTS
Experiencedstaff
As rejection of the hobby model implies, clinical teachers should be
experienced and successful practitioners, not academics at play or refugees
from practice. The right people are rare and likely to command high salaries.
Additionally they should be capable of conceiving their role as part of a
wider process of legal education.
6 Royal Commission on Civil Liability and Compensation for Personal Injury 1974-78.
REFERENCES
Atiyah (1979) "The Rise and Fall of Freedom of Contract", Oxford.
Balbus (1977) "Commodity Form and Legal Form: An Essay on the 'Relative Autonomy'
of the Law", 11 Law and Society Review 571-88 (available in Reasons and Rich, "The
Sociology of Law", Butterworths, 1978).
Beale (1980) "Remedies for Breach of Contract", Sweet & Maxwell.
Dworkin (1977) "Taking Rights Seriously", Duckworth.
Freedland (1976) "The Contract of Employment", Oxford.
Macauley (1963) "Non-contractual relations in business", 28 American Sociological Review
55-70.
Macneil (1981) "Economic Analysis of Contractual Relations", in Burrows and Veljanovski
(eds.), "The Economic Approach to Law", Butterworths, 1981.
Summers (1974) "Evaluating and Improving Legal Processes-A Plea for Process Values",
60 Cornell Law Review 1.
Weaver (1978) "Herbert, Hercules and the Plural Society: A 'Knot' in the Social Bond",
41 M.L.R. 660-680.
Weaver (1980) "Ideals and Compromise in Legal Education" in Slade (ed.), "Law in Higher
Education: Into the 1980s", Association of Law Teachers, 1981, pp. 55-76.