I, of course, should begin by acknowledging some bias. I find the teaching of undergraduate law students both an enlightening and enlivening experience. As an academic in the area of clinical legal education (my students conduct casework as part of their academic study and are taught theory around the casework they undertake) I also see the value in transcending the skills and scholarship divide. I am often exposed to the criticism of legal academics that they are too removed from the legal profession: their focus on scholarship distracts from the real world of the law and too few faculty members work on active legal cases. Yet, many law schools are seeking new and innovative ways of bringing the world of legal practice more readily into the classroom whilst ensuring their research has ‘impact’ in the real world of law.
Fit for Purpose?
There is a growing feeling amongst law firms, expressed in response to LETR consultation, that students generally don’t enter their training contracts with the requisite skills required of a law ‘graduate’ and that the existing system fails to ‘prepare’ you for a career in the law. This has become all the more salient in the current climate of cuts to both higher education and public sector areas of legal practice. Graduating students face unprecedented levels of increased debt, new questions about the constraints in areas in which they may wish to practice and the skills they may need, as well as a profound shake-up as a result of changes in the regulation of legal services.
The changes bring issues of employability to the fore. Students are arguably not prepared for practice in such a divided system of education in danger of being too academic in the academic stage and too vocational in the vocational.
In my own legal studies I recall one of my professors consistently reminding me that his practice of law informed his teaching of theory; and his teaching of theory informed his practice. He peppered his lectures with insightful commentary on his own cases, probing us to ask questions about the application of legal rules to clients in the real world. He never shied from boldly embracing a jurisprudential debate about his own, or his clients, actions and I have no doubt that I was better equipped for pupillage by his insights. Law Schools (and the LETR) should surely be thinking of how to bring the best of both theory and practice to tomorrow’s students.
Bridging the Divide: Skills
In 1932, Jerome Frank wrote an article in the Pennsylvania Law Review entitled ‘Why Not a Clinical-Lawyer School’. He took issue with the traditional method of case study saying that students were like ‘future horticulturalists confining their studies to cut flowers’ and ‘prospective dog breeders who never see anything but stuffed dogs’. He was also quick to note the correlation between ‘that kind of stuffed-dog study’ and the ‘over-production of stuffed-shirts in the legal profession’.
Frank set out his proposals for a more realistic legal education in his article, one of which was to have legal advice clinics in law schools. Through clinics, he envisioned students observing the true relationship between court opinions and individual clients and cases. Mostly, he wanted students to see the ‘human side of the administration of justice.’
Law school clinics are now just one small example of ways in which we might extricate ourselves from the extremes of the skills ‘or’ scholarship divide. The University of York offers a unique problem based learning degree, entirely structured around the simulated cases of ‘Student Law Firms’. The University of Strathclyde has a Clinical LLB where students can take a case attached to a law module in a relevant area. The University of Northumbria uses their in-house clinic to teach a combined vocational and academic degree and at UCL, students can conduct pro bono casework in their final year and engage in relevant theory while representing clients in practice.
At Harvard Law School in the US, students are required to undertake at least 40 hours of pro bono work as a condition of graduation and over 30 in-house clinics run to develop students’ practical skills by offering legal advice on live cases, in an educationally enhanced academic setting. Such endeavors are costly and rely largely on philanthropic funding but this merging of theory and practice could – and, in many cases, does – go a long way in making our graduates more fit both for a career in law and the workplace more generally, as well as meeting community needs.
Notably, law schools have historically tried to provide opportunities for students to develop their skills meaningfully and prepare for legal practice through extracurricular activities: mooting, client interviewing, advocacy, negotiation and debating. On a deeper level, these elements can be incorporated into the curriculum through diversifying assessment methods to partially assess core skills. For some, it is the stark division of our academic and vocational stages that can do a disservice to students who know they wish to practise law and want to study in a practical context. Conversely, it is this division that also fails to assist students who are unclear as to whether they wish to practise having no experience upon which to make an informed decision; (often, having spent in excess of £15,000 on the vocational stage, it can be too late to reconsider).
Bridging the Divide: Academia
However, over attention to skills and business needs could do a disservice to developing legal thinking. The LETR is, of course, concerned with meeting changing market demands but the increasingly pervasive post LSA 2007 language of the ‘client as consumer’ and ‘commercial’ and ‘business awareness’ is in danger of losing the ‘human side’ of education that Jerome Frank referred to. Allowing the law students of 2020 the continuing opportunity to form opinions, probe the law and place it in a relevant, social, political or economic context is surely instrumental in encouraging the independent, strong, diverse and effective legal profession that the LSA 2007 sets out as its regulatory objective.
Clinical legal education also lends itself well to the exploration of ‘values’. These might include a deeper understanding of what ‘competent’ representation looks like, striving to promote fairness and justice, promoting the profession and progressing oneself as a professional. There are few current opportunities to explore the meaning of ‘professional responsibility’ (and, indeed, the changing nature of what a legal professional is) or what it even means to ‘bring one’s profession into disrepute’.
These were terms I dutifully rhymed off at Bar School without much opportunity to explore their meaning in context. In the US, ethics and professional responsibility are integral to one’s legal education and I endorse recent recommendations in the UK to embrace ethics as part of the undergraduate degree. Equally, academic research into and around legal ethics and aspects of professional practice could be enhanced to give students the benefit of research led teaching in this area.
Legal education has historically been hindered by an institutional commitment to the past and unresponsive to the need to change. The criticism of clinical legal education has long been that skills development does not belong in the academic degree, but in the vocational stage. Within the constraints of the existing structure of legal education, we are beginning to see the distinctions merge and the value in bridging the divide. In future, better collaboration between providers of academic and vocational education could reap rewards for students and the profession.
There should be many paths to a career in law and educational providers must continue to promote diversity and facilitate choice. Indeed, a significant proportion of barristers reading this article will have chosen, and value, a non-law degree as a precursor to practice. Others will have preferred the exclusive academic study of law. For some, the choice to incorporate the vocational elements of training into the LLB by way of an exempting degree will be attractive. I do not advocate this as an exclusive approach. Some academic law degrees will need to become more practice orientated but without detracting from the academic study of law. The key, again, is choice, and it is this diversity which is of value especially to the Bar.
The LETR now has the difficult task of mapping these different paths within a coherent structure. They need to break the confines of academic and vocational, theoretical and practical. We should explore and embrace new ways of offering all of these tenets in an engaging way that benefits both students and the changing legal profession.
Jacqueline Kinghan, Director of Clinical Legal Education at UCL Faculty of Laws