Wednesday, May 17, 2017
Professor Douglas A. Kahn recently posted an article on SSRN, The Downside of Requiring Additional Experiential Courses in Law School, in which he declares that "the imposition of additional, required experiential courses will have a negative effect on the adequacy of a student's preparation to practice law because it contributes to a reduction in the student's exposure to a range of doctrinal courses (especially core courses) and to the skills that those courses develop." He is particularly critical of the proliferation of clinical courses. For reactions to this article, see the comments to this article on the TaxProf Blog.
In response to Kahn's article, Professor Jones Merritt has posted a defense of clinics on the Law School Cafe: What Do Students Do in Clinics?
She asserts, "It’s an old debate, one that has bristled for more than 50 years. The discussion doesn’t surprise me, but Professor Kahn’s ignorance of clinical education does. His bold assertions about clinics reveal little familiarity with the actual operation of those courses. Let’s examine some of Kahn’s claims."
In response to Kahn's claim that “[S]kills in legal reasoning, analysis, and statutory construction are best learned in doctrinal courses," she asserts, "Decades of research on cognitive science show that students learn critical thinking skills (like “legal reasoning, analysis, and statutory construction”) through explicit instruction, hands-on practice, written exercises, and individualized feedback. Doctrinal courses offer surprisingly little of that work."
She continues. "Well-staffed legal writing courses offer much better instruction in legal reasoning, analysis, and statutory construction than doctrinal courses."
She asks, "And now let’s talk about clinics. Does Professor Kahn really believe that clinic students represent clients without engaging in legal reasoning, analysis, or statutory construction?" For example, "I am even more certain that clinics give students a chance to advance their statutory construction skills (along with other types of legal reasoning and analysis) to a new level. Students in my clinics must interpret a variety of statutes drawn from very different fields, integrate those statutes in a single case, explain the statutes’ meaning to clients, and develop persuasive arguments for opposing counsel and the court."
Kahn: Seminar sessions in a clinic “likely are more focused on the delivery of legal services than on the analysis of legal issues and policies.” Merritt replies, "How in the world does one deliver legal services without analyzing legal issues and policies?" In addition, "the clinics I know radiate novel legal issues and provocative policies."
Kahn: “Another reason [to prefer simulation courses] is that the instructor in a simulation course can control the issues that will arise rather than . . . depend on what issues a client brings.” She responds, "Most clinics choose their clients and cases, which allows considerable control over the issues that students face. But it’s exactly the uncontrollable elements that students need by their third year of law school. They won’t be able to control their facts or issues once they graduate, unless they focus on appellate work."
In sum, "One can, as Professor Kahn suggests, debate the appropriate balance among doctrinal, experiential, and (I would add) interdisciplinary, perspective, and seminar courses in law school. But to have an intelligent debate, we need to know the content of those course types. Professor Kahn’s article reflects many of the stereotypes that educators hold about clinical and other experiential courses. Let’s learn the facts before we begin to negotiate: that’s a key lesson we teach in clinics."
There is much more detail to Merritt's article so I suggest you read the whole thing. But, her main point is clear: Don't criticize something you don't understand. We see this so much in everyday life; we don't need it in supposedly scholarly debates.
The other big thing to get out of her article is that students learn more when they apply doctrine to real-life situations. Having a lot of knowledge is not enough; a lawyer needs to know how to use that knowledge. Knowing doctrine is the basis of traditional legal education. Today's law schools are moving toward teaching students to use that knowledge. This progress is still slow, but we have to fight for it. We owe it to the students. Professor Merritt is at the forefront of that fight.