Clinical Legal Education

Volume 6 • Issue 2 • January/February 2020
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Clinical Legal Education and the Replication of Hierarchy

By Minna J. Kotkin

A version of this article first appeared in Clinical Law Review volume 26, issue 1 (Fall 2019).

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity …”

—Charles Dickens, A Tale of Two Cities

Trite as they may be, no words could better describe the state of clinical legal education today in the United States. Let us consider first the “best.” Since the 2008 recession, both the legal and law school marketplaces have experienced a marked decline in demand, resulting in sea changes in those institutions. Most experts now agree that there is no going back; these declines represent the “new normal.” As a matter of economy, law firms want “practice ready” graduates. Taken together with the more general attempt to make law school more attractive to qualified undergraduates, the siren call of every law school today is “experiential learning.” What clinicians have been touting for the last 40 years has finally taken root with a vengeance. There is not a law school in the country that does not give pride of place to its clinical offerings in its marketing efforts. And indeed, this is more than fluff. Law schools have vastly expanded in-house clinical programs, externship opportunities, and course offerings that integrate some element of experiential learning through simulations or practicums. It is fair to say that few law students graduate today without a good dose of experiential education.

But what about the “worst”? This article explores two major unintended consequences—or, perhaps more accurately, aspects of collateral damage—resulting from the triumph of clinical education. The damage relates to the replication of hierarchy, in both the structure of the academy and the provision of legal services. First, to meet the demand for experiential learning and to secure their status and rank, the first generation of clinical teachers, who have been integrated to some degree into the academy, encouraged or at least acquiesced to the creation of an underclass—clinical fellows, staff attorneys, visitors from practice—who now carry a significant share of actual student supervision without job security or any role in law school governance. Moreover, they have been unable to stem the trend in tenure-track hiring that privileges advanced degrees and fellowship-driven scholarship over significant practice experience.

Second, the poverty law foundation of clinical education and its emphasis on values—local community empowerment, social justice, and law reform—has been eroded. If experiential learning is going to appeal to the current generation of law students, it must address their career aspirations. A 2010 study, for example, finds that law students “want someone to show them what it means to be a lawyer, not just a public interest lawyer,” while another 2010 study finds that the “larger constituency [of law students] wants to learn practical skills that will help them to become Great BigLaw Lawyers, not Great Public Interest Lawyers.” New clinics do not handle poverty law concerns such as landlord–tenant matters but instead entrepreneurship, intellectual property, arts law, and other glamourous appearing legal endeavors. Externships with for-profit law firms and corporations are the norm. Thus, clinical education has come to reify the established hierarchy of law practice, with legal services for poor people at the bottom.

The siren call of every law school today is “experiential learning.”

This article proceeds in four parts. The first briefly looks at the history of clinical legal education to give context to more-recent developments. Part two considers the “crisis” in legal education precipitated by the economic downturn beginning in 2008. Parts three and four address the ramifications of that crisis and its impact on both who teaches and what is taught in today’s clinics. In the final part, I suggest that it is time to reexamine the core foundations of clinical education, specifically to insure that we are staffing clinics in a manner that respects the career aspirations of our junior colleagues and that we are instilling in our students the social justice values that have been our bulwark. This essay concludes with some recommendations for counteracting the “worst,” while capitalizing on the “best.”

The Clinical Law Review

I originally contributed a version of this article to the Clinical Law Review. CLR is a semiannual peer-edited journal devoted to issues of lawyering theory and clinical legal education. Where does the CLR fit into all this, as we celebrate the 25th anniversary of its founding? It most certainly falls within the “best” category. It has given voice to every aspect of experiential education: from clinical program design, to pedagogical innovation, to exploration of narrative theory, to investigation of lawyering competencies, to examination of cultural competencies. It is a must-read for all clinical teachers. Whenever someone asks me about entering the clinical teaching world, the first thing I say is, “Go read the Clinical Law Review.”

From a more instrumental perspective, it has given countless new teachers the credentials to begin to move up the academic ladder, from fellowships and staff attorney positions to those with some form of job security. And through the peer-editing process, it has advanced the quality of clinical scholarship immeasurably.

But again, there is another side to the story. In some sense, the CLR has created a silo for clinical scholarship. In the past 25 years, it seems that there has been little infiltration of clinical scholarship into flagship law reviews, as “elite” legal scholarship has become allegedly more theoretical, empirical, interdisciplinary, and less grounded in practice. While the CLR is a haven for clinical scholarship, we should not let it become a ghetto. It is tempting to send our clinical writing only to the CLR—where we know it will find a receptive audience—rather than go through the general submission process. But it may be worthwhile to try to spread the word a bit more widely, such as in publications like The Practice and in general-interest law reviews.

The beginnings of clinical education in the 1960s grew out of law students’ growing political involvement and desire for a more relevant experience. Spurred by the civil rights movement, young people flocked to law school hoping to work for social change and were discouraged to find a calcified curriculum having little to do with their aspirations. Law school faculties also felt the need for change.

Once in the academy, the former legal services lawyers went through a transformation in the 1970s.

At the same time, as part of President Johnson’s war on poverty, federally funded civil legal services offices were first established. These fledging enterprises, staffed by idealistic and overworked young lawyers, began to look to law students as a means of leveraging their impact. Clinical education began with students volunteering at local legal services offices, where they were thrown into the thick of poverty law practice without much guidance from the only marginally more experienced staff attorneys. Nevertheless, many politically minded students were thrilled with the opportunity to get out of the stuffy law school environment and help real clients.

These informal relationships were transformed by the efforts of the Ford Foundation’s Council on Legal Education for Professional Responsibility (CLEPR), founded in 1968, which had as its dual goals to increase the availability of free legal services and to raise the academic community’s awareness of the need for services. CLEPR provided substantial seed money for law schools to establish their own legal services offices. The law schools turned to the obvious source of staffing legal services lawyers, who largely replicated their high-volume, low-supervision model. Thus began the first in-house clinics, often in the literal or figurative basements of law school buildings.

Once in the academy, however, the former legal services lawyers, usually titled staff attorneys, went through a transformation in the 1970s. They began to adopt the values of the academy, moving from an emphasis on lawyering to teaching. And they became conscious of the huge disparity in status and pay compared with the traditional faculty. The greater emphasis on teaching made it necessary to significantly decrease caseloads, as well as student–supervisor ratios, and to develop theories of lawyering that could be articulated and taught rather than just observed. The resulting scholarship on lawyering gave clinical teachers more legitimacy in the academy and bolstered their argument for pay and status parity. Staff attorneys became instructors and still later professors.

As a core group of clinical teachers achieved professorial status, and eventually tenure in the 1980s, they began a more concerted effort to fully integrate their clinical colleagues across the country into the academy by making them all eligible for tenure or an equivalent form of job security. Their underlying goal, however, was not rooted solely in status issues but in educational reform: to move legal education toward a fully experiential model infused with social justice values. This effort culminated in 1984 with the adoption of the American Bar Association Accreditation Standard 405(e), which provided that to obtain or continue its accreditation, a law school “should afford to full-time faculty whose primary responsibilities are in its professional skills program a form of security of position reasonably similar to tenure and perquisites reasonably similar to those provided other full-time faculty.” The accompanying interpretations of the Standard noted that job security could be in the form of a separate tenure track or a renewable long-term contract but gave law schools a sizeable escape hatch by permitting “a limited number of fixed short-term appointments in a professional skills program predominantly staffed by full-time faculty members.”

The Ford Foundation’s Council on Legal Education for Professional Responsibility (CLEPR) provided substantial seed money for law schools to establish their own legal services offices.

Another interpretation was added in 1988, ensuring that clinical faculty would be accorded a similar opportunity to participate in law school governance as other full-time faculty. Finally, after years of lobbying by the clinical community and the collection of evidence that many law schools were not in compliance with 405(e), the language of the Standard, now 405(c), was changed in 1997 from “should” to “shall” in an effort to give some teeth to accreditation review. A final significant regulatory action occurred in 2005 when an interpretation was issued making clear that a long-term contract must be for at least five years and must be presumptively renewable.

During this entire prerecession period, there was slow but steady progress in the clinical arena. In those times of plenty, clinical programs expanded substantially, and by 2007, every law school offered at least one clinical course. Some law schools established a unitary tenure track, with equivalent scholarship requirements and complete governance participation, including voting on all appointment and promotion matters—the gold standard for parity. Many others took the “specialized tenure” or long-term contract route, which provided job security but typically did not permit voting on personnel matters outside of clinic appointments. With status came scholarship demands, leaving clinical teachers less time for student supervision and reinforcing the low student–faculty ratio and small case model.

Recommendations and recession

Up until the time that legal services lawyers invaded the academy, legal education remained static for decades, with Langdell’s 19th-century case method firmly entrenched throughout the three years. Although occasional criticisms were voiced in the 1930s, the first major modern inroad dates from the 1979 ABA study known as the Cramton Report. (For a brief summary and discussion of the Cramton Report, see Indiana University Law professor Gene Shreve’s contemporary paper on the topic.) It challenged the case method beyond the first year, recommending that law schools “address the durable and fundamental aspects of lawyer competence” and provide opportunities for oral and written communication with realistic exposure to the integrated demands of practicing law, primarily by means of small class simulation experiences. The Cramton Report may have resulted in some curricular additions, but it came and went with little significant impact.

Similar but more far-reaching reforms were proposed by the 1992 MacCrate Report, which argued that the case method not only failed to teach lawyering skills but emphasized “qualities that have little to do with justice, fairness, and morality in daily practice.” The report was largely viewed as a call for the expansion of clinical education with a focus on poverty law. It speaks at length about law schools’ obligation to instill social justice values as well as skills. It was widely discussed within the academy, with many schools organizing MacCrate task forces and committees. But the change was incremental and measured. And there was a mounting backlash, with the deans of more than 100 schools organizing against the call for more skills education and improved status for clinical teachers.

Another major call for reform came with a 2007 Carnegie Foundation report titled Educating Lawyers. This report gave credit to the case method as a first-year methodology but was highly critical of the upper-class curriculum. It urged the adoption of a tiered progression through the three years, from doctrine to skills to professional role assumption. Again, it precipitated much discussion and consideration but no rapid movement.

Law schools across the country now bill themselves as centers of clinical excellence and regularly tout their expanding programs.

Then came the recession of 2008, which most experts believe has changed the legal profession for good. It has had a far-reaching effect on legal education, well beyond that of various reports and committee efforts. To summarize briefly, when the economy collapsed, the large law firms were hit hard: between 2009 and 2011, according to Georgetown Law dean William Treanor, the number of associates hired out of law school dropped from 5,200 to 2,900. The trickle-down effect pushed students into smaller firms and left those in less competitive positions without jobs at all. With significantly fewer high-paying jobs available, tuition continuing to rise sharply, and bad publicity about the value of law school coming out almost daily, the number of law school applicants, according to Treanor, declined precipitously: from 96,000 in 2006 to 56,000 in 2016. Despite the recovering economy, the best-qualified potential applicants remain on the sidelines, with only a small uptick in applications.

Faced with these economic realities, law schools finally embraced experiential learning for real, heeding the virtually unanimous call of the bench, the bar, and students to produce more “practice ready” graduates. This is the “good.” Law schools across the country now bill themselves as centers of clinical excellence and regularly tout their expanding programs.

There are, of course, countervailing considerations of cost, however. With shrinking tuition dollars available, law schools were looking for ways to run clinics on the cheap. This brings us to my first concern with the replication of hierarchy.

The replication of hierarchy through hiring trends

As discussed above, clinical teachers fought a long battle to move from staff attorneys to professors with job security. With the growth of experiential offerings, one would expect to see an expansion in the ranks of the clinical professoriate. Alternatively, law schools might go the path of creating a more integrated faculty, with newly hired professors willing and able to teach clinical and traditional courses or even melding the two together. Sadly, neither of these predictions has borne out. In this section, I will look at law school hiring patterns since the recession and their impact on clinical education.

Since 2011, the percentage of law school hires with doctorates has risen from 27 percent to 53 percent.

Traditional hiring. First, let’s consider traditional tenure-track positions. With law school enrollment shrinking more than 20 percent in the last 10 years, hiring has taken a hit: from a high of 167 entry-level positions in 2008 to a low of 62 in 2017, rebounding slightly to 82 in 2019. But what is significant for my thesis is the characteristics of those hired. In the olden days, the criteria for faculty positions were fairly set: a top-tier law degree; a law review editorship; a prestigious, preferably federal circuit or U.S. Supreme Court clerkship; and perhaps a few years at a big firm or an elite government agency. No longer are these meaningful benchmarks. Today, the “coin of the realm” is a fellowship and/or an advanced degree, particularly a Ph.D. Of the 2017 hires, 82 percent completed a fellowship, more than half of which were at five schools: Harvard, NYU, Georgetown, Penn, and Columbia, as compared to 42 percent 10 years ago. Forty-two out of 62 hires held an advanced degree, of which 26, or 42 percent, were doctorate level, as compared with 10 percent of hires in 2000. Only 32 out of 62 had clerkships, however.

A recent empirical study by UCLA Law professor Lynn LoPucki looks at the increase in Ph.D.s on law school faculties and its meaning for legal education. He found that:

J.D.-only professors hired from 2011 through 2015 were twice as likely as the J.D.-Ph.D.s to have practiced law (86%, as compared with 43%) and practiced an average of four times as long (3.6 years, as compared with 0.9 years). Seventy-seven percent of the J.D.-only professors clerked, as compared with only 50% of the J.D.-Ph.D.s, and the J.D.-only professors clerked an average of 1.2 years, as compared with 0.7 years for the J.D.-Ph.D.s.

The gap with respect to elite clerkships also widened. Among the 2011–15 hires, 29% of the J.D.-only professors clerked for the United States Supreme Court, as compared with only 2% of the J.D.-Ph.D.s. 77% of the J.D.-only professors clerked for United States Courts of Appeals, as compared with only 44% of the J.D.-Ph.D.s.

LoPucki notes that these trends will continue and in fact accelerate as faculties tend to “hire in their own image.” He estimates that in 10 years, half of all faculty members will have Ph.D.s and little to no practice experience and concludes that:

[i]ndividual faculty members have long grappled with the difficulties of preparing students to practice a profession they have not themselves practiced. They have done so with the benefit of colleagues who have practiced. But as the decline in legal experience on law faculties accelerates, the discipline-based law faculty members will be increasingly on their own.

LoPucki also documented the decline in practice experience at the top 26 law schools, finding that in 2015, the average was 1.5 years, declining since 2010 from close to 3.5 years, as shown in the following graph.

Graph shows decline of hired faculty's mean years of practice experience, beginning in 2010 at roughly 3.3 years and ending in 2015 with less than 1.5 years. The Author of the course study, Lynn M. LoPucki, also notes, "The graph should be interpreted with caution because the 2010 faculty data are for professors hired over an extended period of time."

Source: “Dawn of the Discipline-Based Law Faculty” by Lynn M. LoPucki

Northwestern Law professor Sarah Lawsky’s excellent analysis of entry-level hiring more than bears out LoPucki’s predictions. Over a number of years, she has tracked the number of entry-level tenure-track hires who self-report whether they have had clerkships, fellowships, or higher degrees. For 2019, she found that “every reported hire had at least one of these credentials.” Since 2011, the percentage of those with doctorates has risen from 27 percent to 53 percent. The following chart indicates that 96 percent of hires have completed either a Ph.D. or a fellowship.

From 2011 to 2019, Sarah Lawsky graphs hires who have completed either a fellowship or a doctorate degree. the percentage for doctorate hires begins at 68 percent in 2011 and ends at 79 percent in 2019; the percentage of fellowship hires begins at 27 percent in 2011 and ends at 53 percent in 2019; and, notably, the percentage who have one or the other moves from 78 percent to 96 percent over that span.

Source: Sarah Lawsky’s Entry Level Hiring Report on PrawfsBlawg (December 16, 2019)

Thus, it seems clear that the expansion of experiential learning will not be addressed by reliance on the faculty at large, since fewer and fewer will arrive with any practical experience. But there are even larger risks at stake. With the movement toward tenure availability and scholarship requirements, clinical faculty began to gain a seat at the table. Traditional teachers were more likely to view clinicians as full members of the academy. The movement toward what LoPucki calls the “discipline-based faculty” is one that devalues practice and practical scholarship and may well end up devaluing clinics and clinical teachers. It may be that status issues have taken on the qualities of a pendulum that is now swinging back, as the next section suggests.

Clinical faculty. As experiential education has grown in importance, one might expect an increase in the raw numbers of clinical teachers and in their progression within the faculty hierarchy. While the number of teachers has increased substantially, the available statistics show that their position in the academy has not progressed as would be expected. In fact, it appears that there has been a steady erosion in the status of clinical teachers, the result of which is that they have less influence in the trajectory of their schools and in legal education in general.

Since 2007, the Center for the Study of Applied Legal Education (CSALE) has collected data on clinical education every few years through a sophisticated survey mechanism. In the latest survey—CSALE 2016–2017—94 percent of ABA-accredited law schools responded, including more than 1,000 individual clinical teachers. In this section, I rely on the CSALE data comparing the status of clinical teachers over the years as reported by three surveys: 2010–2011, 2013–2014 and 2016–2017.

At the outset, it is noteworthy that there has been a steady decline in the percentage of clinical teachers who are employed on a full-time basis: 82 percent in 2010–2011; 78 percent, 2010–2011; and 72 percent, 2016–2017. It is unclear whether these numbers refer to adjunct instructors or actual part-time faculty members, but in either case, it is fair to say that part-timers will not play a significant institutional role at their schools.

The table below shows the status of full-time instructors over the three survey periods.

The table shows the status of full-time instructors over the three survey periods: 2010-11, 2013-14, and 2016-17. The percentages reporting for each status are as follows, respectively: Tenured24, 21, 18; Tenure track 7, 4, 7; Clinical tenured 6, 5, 7; Clinical tenure track 3, 3, 3; 5-year (or more) contract 20, 22, 25; 4-year contract less than 1, less than 1, less than 1; 3-year contract 10, 9, 12; 2-year contract 3, 5, 4; 1-year contract 13, 13, 12; Adjunct 2, 9, 2; Fellow 4, 4, 3 Nonadjunct at-will employee 3, 3, not applicable; Administrative position with faculty title not applicable, not applicable, 3; Administrative position without faculty title not applicable, not applicable, 2; and Other, 5, 3, 4.

Note: “Percentage Reporting,” here and in the next charts, refers to the percentage of all teachers responding to the survey who chose each category. Source: CSALE 2016–2017.

The data regarding the status of teachers who are “in charge of a clinic” (for example, the director) reveals the same pattern. These figures run even more counter to expectations, since it would be presumed that clinic directors would have more status than clinical teachers in general.

The table shows the status of teachers who are “in charge of a clinic” (for example, the director) over the three survey periods: 2010-11, 2013-14, and 2016-17. The percentages reporting for each status are as follows, respectively: Tenured23, 25, 20; Tenure track 7, 7, 6; Clinical tenured 8, 8, 9; Clinical tenure track 5, 4, 4; 5-year (or more) contract 19, 18, 22; 4-year contract 2, less than 1, less than 1; 3-year contract 8, 10, 8; 2-year contract 3, 2, 2; 1-year contract 9, 9, 10; Adjunct 9, 13, 13; Fellow not applicable, less than 1, 0; Nonadjunct at-will employee 2, 1, less than 1; and Other employment terms, 8, 2, 4.

Source: CSALE 2016–2017.

What this data suggests is a steady decline in tenure and tenure-track positions, with a concomitant increase in long-term contract positions. There is, of course, something to be said for the job security provided by contract positions for the individuals involved, but this bifurcation of status between clinical and doctrinal teachers only serves to cement the hierarchical division of legal education. Instead of closing the theory-practice dichotomy, we are moving further apart.

Further evidence of the entrenchment of hierarchy is CSALE’s data on voting rights. The primary distinction between tenure/tenure track and long-term contract positions relates to this issue. Tenure status brings with it full voting rights, while long-term contract holders are typically excluded from voting on faculty hiring, and promotion and tenure matters. A 2012 study found that only 15 percent of these long-term, contract clinical faculty have voting rights on all matters of faculty governance. Sixty-nine percent are permitted to vote on all matters except the hiring and promotion of doctrinal faculty. Five percent are permitted to vote on administrative matters only, and 11 percent are not permitted to vote on anything, although they can attend faculty meetings.

The most recent CSALE data does not break down voting rights by status, but it does show a significant decline in those clinical teachers entitled to vote on all matters:

As Kotkin points out, CSALE data show a significant decline in those clinical teachers entitled to vote on all matters. The following breaks down the percentage of respondents entitled to vote over each of the three time periods (2010-11, 2013-14, 2016-17): All matters 37,33, 29; All except classroom/doctrinal faculty hiring, promotion, and tenure, 31, 36, not applicable; All except classroom/doctrinal faculty hiring, not applicable, not applicable 13; All except classroom/doctrinal faculty, promotion, and tenure not applicable, not applicable, 33; Not vote but can generally attend meetings 19, 23, 16; Not permitted to attend faculty meetings 12, 7, 4; and Administrative matters only 1, 2, 5.

Source: CSALE 2016–2017.

These trends run directly counter to the recommendations of the Association of American Law Schools’ 2012 Report of the Task Force on the Status of Clinicians and the Legal Academy. In addressing the issue of hierarchy, the report clearly puts forward the harm caused by limiting the voting rights of clinical faculty:

No decisions are as important to the mission, function, and direction of law schools as decisions about hiring, retention, and promotion of law school faculty members. Hiring, retention, and promotion decisions reflect the priorities of a law school through its allocation of resources. Such decisions also shape a law school’s identity and constitute the body of faculty members who will govern other important decisions affecting the law school. To exclude clinical faculty members from hiring, retention, and promotion decisions disenfranchises them in ways that have deep and longstanding effects on the shape and direction of a law school program. A vision of equal governance cannot exclude clinical faculty members as a class from faculty governance on those critical judgments.

In excluding clinical faculty from full governance over issues involving the mission and direction of law schools, especially faculty hiring, retention, and promotion, law schools have created hierarchies in which one class of permanent faculty members makes decisions affecting another class of permanent members, often without reciprocity. Such hierarchies exist without reasonable and adequate justification.

The Task Force’s most significant recommendation was that traditional tenure status should be extended “to full-time clinical faculty or at minimum, to a predominant core of well-qualified full-time clinical faculty.” It appears, however, that legal education is moving in the opposite direction.

While the CSALE data is highly informative, my anecdotal impression is that it does not give a full picture of how far the clinical teaching job market has shifted to short-term positions. To test that impression, I reviewed a year’s worth of job announcements posted on the Clinical Legal Education Association’s website, where it is fair to assume that close to 100 percent of openings appear. Of the 90 jobs advertised from July 2018 to July 2019, only 12, or 13 percent, specified that the position was tenure eligible, and Georgetown accounted for four of those positions. Another dozen or so mentioned the availability of long-term contracts, but approximately 75 percent of the positions were for fellowships, staff attorneys, visitors, or nonfaculty “directors.”

Given this data, it appears that the growth of experiential education has not led to an equivalent integration of clinical teachers into the faculty mainstream. We see fewer tenured clinicians and, at least anecdotally, a huge increase in short-term positions without any form of job security. At the same time, the doctrinal faculty is increasingly divorced from practice and oriented toward what Judge Harry Edwards famously criticized in 1992 as writing that “emphasiz[es] abstract theory at the expense of practical scholarship and pedagogy.”

The replication of hierarchy in clinical subject matter

Not only have hierarchies come to dominate the staffing of clinical programs, but they have invaded the programs’ subject matter as well. The original clinical model grew out of a poverty law-based legal services practice and typically involved landlord–tenant, public benefits, and family law matters. Progressive lawyers flocked to legal services offices in the 1970s and imported their caseloads to clinics in the 1980s.

Today, the classic legal services style practice is no longer the most prominent feature of the clinical world.

In terms of traditional legal practice hierarchies, poverty law has always been at the bottom of the ladder. The well-known 1980s study of the Chicago bar found “two hemispheres” of practice: those who represented individuals, and those who represented business entities (the ‘elite”). Until the advent of publicly funded legal services, poor people did not even figure into this calculus, as they had virtually no access to legal services. Part of the goal of legal services and clinical programs was to equalize the resources available to poor people.

Nor are these sorts of hierarchies limited to the private bar. As Rebecca Sharpless has noted, “Progressive legal scholars and practitioners have created a hierarchy within social justice lawyering. Direct service attorneys—non-profit attorneys who focus on helping individuals in civil cases—sit at the bottom.” Sharpless chronicles the history of the movement away from direct services in detail, discussing how critical theory and notions of rebellious lawyering contributed to the creation of what Sharpless calls a “hierarchy of helping.”

Today, the classic legal services style practice is no longer the most prominent feature of the clinical world. Instead, programs that replicate the more-elite elements of private and public practice have proliferated. Here again, the CSALE data is informative. From 2007–2008 to 2016–2017, the percentage of schools offering a general civil clinic has decreased from 43 percent to 36 percent, the largest drop in any subject area. Housing clinics dropped from 21 percent in 2013–2014 to 16 percent in 2016–2017.

In 2007–2008, no schools reported having a clinic with a substantive focus of “entrepreneur/start-up/small business.” In 2016–2017, 29 percent of schools had such an offering. Intellectual property clinics rose from 11 percent to 23 percent. These two subject areas represent the largest growth in clinical programs by far. In a more general categorization, a 2014 study found that there were more than 140 transactional clinics at the 200 ABA-approved law schools.

In Paul Tremblay’s contribution to the 2019 issue of CLR, he notes the growth of articles about business or transactional subjects: only one such article appeared in the first six years of CLR, as compared with 13 in the last six years. This change is not surprising; the burgeoning scholarship reflects the change in the composition of clinical programs. But Tremblay points out the distinction between transactional clinics grounded in community lawyering principles and those with a pure business focus:

[C]ommunity lawyering is but a small segment of the transactional practice universe. The constant underlying premise of community lawyering is a notion of the neighborhood, the group, or the collective, as the lawyer’s client. Sometimes that will be true for small business lawyers, but usually not. More commonly, the clients of a small business practice are founders or owners of beginning enterprises, and the lawyer’s commitment is to the success, and indeed the private success, of those enterprises. That aim is seldom a notable priority within the community lawyering literature.

If one separates out the transactional themes of the community lawyering literature, the contrast between the early years of the Clinical Law Review and the more recent publication record is more stark. The early years evidenced very little attention to small businesses, startups, entrepreneurship, and intellectual property, while the more recent issues offer greater coverage of those subjects.

I do not want to dwell here on the debate about whether these new business-oriented clinical subjects, excluding those grounded in community lawyering, represent a complete departure from the social justice mission of clinical education. A number of clinical scholars, including Lynnise Pantin and Joseph Pileri, have mounted vigorous defenses of their social utility, claiming that they serve to inculcate the traditional clinical values of promoting justice and equality for the underrepresented. They argue, as Tremblay describes, that “assistance to low-wealth entrepreneurs, particularly those from disadvantaged communities and entrepreneurs of color, will have a meaningful effect on the development of financial and social capital with those communities and among those participants.” I do not take issue with those arguments. I only posit here that the proliferation of these programs, and their availability and desirability to law students, replicates the hierarchy of the legal profession in general, and we should be alert to guard against the entrenchment of that hierarchy.

In 2007–2008, no schools reported having a clinic with a substantive focus of “entrepreneur/start-up/small business.” In 2016–2017, 29 percent of schools had such an offering.

Transactional law, particularly that involving entrepreneurs, has been deemed “happy law.” It avoids the conflict and the win–lose dynamic inherent in litigation settings. It does not invoke the struggle for justice and fairness that permeates poverty law. As a general matter, it does not create a learning environment where empathy and cultural awareness are daily concerns. I suggest that these values and skills should not be forgotten, in the three short years that we have the attention of future lawyers, as clinical education evolves.

Conclusion

This essay has addressed two forms of hierarchy that have infiltrated clinical legal education without much attention: the stratification of the clinical professoriate into haves and have-nots, and the demand for and expansion of business-oriented clinics with questionable social utility that replicate the hierarchy of practice.

What is to be done, if anything? As to staffing, it seems unlikely that we can entirely turn back the clock entirely. Nevertheless, the clinical community should continue to advocate for unitary tenure-track appointments and for the enforcement of Standard 405(c), which permits only a limited number of short-term positions. But we also need to provide more support for the have-nots.

Many law schools that run clinical fellowship or “visitor from practice” programs advertise them as a gateway to permanent clinical teaching positions, with mentorship, time, and support to pursue scholarly writing. They provide little hard information by which to evaluate their value in terms of career aspirations, however. Similarly, programs that seek directors or staff attorneys fail to describe the parameters of those positions. There is little transparency when it comes to what an applicant can expect.

In this regard, I have two recommendations. First, we should learn from our legal research and writing colleagues, who, through the auspices of the Legal Writing Institute, have developed a “Job Posting Disclosure Form” that must be included for any position advertised on its website or listserv. The disclosure includes the status of the position, with six categories ranging from tenure-track to year-to-year appointments, faculty voting rights, salary range, and number of students to be taught. The clinical equivalent might also include information about classroom teaching and summer responsibilities, as well as the specifics of scholarship support (for example, research assistance, summer release time, and conference attendance).

What is to be done, if anything?

Second, these programs should disclose the career trajectories of past fellows or visitors. This has been an ongoing concern for applicants to traditional teaching fellowships as well. A cursory review of the websites for some of the better-known clinical fellowships reveals almost no data. Yale’s Cover-Lowenstein Fellowship gives no information about past fellows; its Ludwig Fellowship lists the names of past holders but not their current positions. At Georgetown, with its dozen clinical fellowship programs, only the Center for Applied Legal Studies includes what appears to be a partial list of those past fellows who have obtained permanent academic positions.

Clinical programs should instead follow the model of the University of Chicago’s Bigelow Fellowship, which lists the job placement of every fellow since the inception of the program in 2001. If we are to avoid exploiting an underclass of clinical instructors without status or job security, full transparency in this regard is a must. At the very least, if we are to continue to depend on short-term labor to staff our clinical programs, we should ensure that they have the opportunity for real career advancement.

As to the creation of subject-matter hierarchy within clinical programs, again, we cannot turn back the clock to the time when poverty law was the norm. On the other hand, we should not forsake the values that have underpinned clinical education since its inception. All transactional clinics, particularly those serving entrepreneurs, should carefully evaluate potential clients according to criteria consistent with social justice values. For example, is the entrepreneurial venture contributing to an underserved community or otherwise forwarding a progressive goal? Is the client a member of an underserved group without access to other legal resources?

Representing a college-educated computer whiz who is developing a cool new app that turns your face into a cartoon image may make for a “happy” clinical experience, one that may be appealing to many of our students and in line with their career aspirations. But this is not what clinical education was designed to accomplish, nor should we squander our limited resources on these ventures.

 


Minna J. Kotkin is a professor of law at Brooklyn Law School and director of its Employment Law Clinic.

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Clinical Legal Education Volume 6 • Issue 2 • January/February 2020

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