Judge Goldring, John --- "Book Review: Legal Education and People" [1999] LegEdRev 10; (1999) 10(2) Legal Education Review 209
BOOK REVIEW
Legal Education and People
Jeremy Cooper and Louise G Trubek, editors, Educating for Justice: Social Values and Legal Education, Aldershot, Hants, England, Ashgate Publishing Company, Brookfield Vt USA and Dartmouth Publishing Company Limited, 1997, pages x + 311. Price $127. ISBN 1 85521 967 0.
JUDGE JOHN GOLDRING *
“ABSENCE OF A LARGER VISION”
Tan Le, 1998 Young Australian of the Year, wrote in the Sydney Morning Herald on 3 March 1999:
Let me illustrate from my experience. I have just completed a law degree. One reason why I (and many others) chose law was because I believed a law degree would enable me to contribute in a special way — to do what I could to make a better world.
But nothing in the entire law curriculum addressed the issue in a serious and engaging way ...
Young people are not being educated to take their place in society. They are being trained in a narrow body of knowledge and skills that is taught in isolation from larger, vital questions about who we are and what we might become.
There is, in other words, a complete absence of a larger vision, and
many young people who enter the university in the hope
of learning how to make a
better world find out that this is not a consideration. This lack of vision
prevails not just in tertiary
education. Our society has replaced vision with
what might be called a rationale. A rationale is more pragmatic, smaller in
scope,
less daring and does not fire the heart or capture the imagination
...
Some years ago, Sir Anthony Mason, then Chief Justice of Australia,
said:
Law schools must resist the temptation to become business schools, deferring
to the demands of large commercial practices and ignoring
consideration of
intellectually demanding questions posed by the traditional subjects as well as
the large and enduring jurisprudential
issues relating both to the structure of
legal systems and to the law’s role in
society.1
Ms Le clearly feels she attended a law
school that may have ignored Sir Anthony’s advice. The pressures on law
schools to defer
exclusively to demands of large commercial firms and the
students who aspire to work in them (as well as the students’ families)
have increased in the decade since Sir Anthony spoke. Professors Cooper and
Trubek, however, have edited a book that proves some
law teachers still share
the same concerns as Ms Le and Sir Anthony Mason. Whether or not such law
teachers will remain in law schools
for much longer is open to question.
In
most countries, including the United Kingdom and Australia, reduction of
government funding of Universities has put two kinds of
pressure on law schools.
First, they are recruiting relatively few new staff. Secondly, their scarce
resources are concentrated on
teaching the compulsory core of traditional
subjects in the least costly way. In addition, as some of the contributions to
this book
point out, the pressures on students have changed in ways that
influence their career choices and, at least indirectly, possibly
their values
as well.
What Ms Le observes may be universal. One essay in this collection,
Kim Economides’ “Cynical Legal Studies”, suggests
that the
pressures on both law students and law teachers reduce legal education to
training in cynicism. He identifies the preoccupation
of law firms and
universities with “market forces” as one factor. Students are under
pressure to find virtually any employment;
they can no longer choose. In any
event, as a result of “market-oriented” government policies, there
is now far less
employment available in the public sector and in what at one
time was called “poverty law”. The author also holds the
“nihilistic” element of the Critical Legal Studies approach to legal
studies responsible for developing a degree of cynicism
in law students,
especially because its more radical approach to law and society led to isolation
from some of the more radical elements
of legal practice. If this is true, what
room is there left for an approach to the study of law which takes account of
social values?
One could go further: where, in the course of most legal
education, do students encounter the “human” element in law?
The
study of business and property law rarely exposes students to the fact that law
arises out of and affects the actions of individual
people who have appetites,
moods, likes and dislikes. The Aristotelian or scholastic tradition that
influences so much of higher
education (including legal education) in the
western culture is obsessed with systematisation and rationalisation. Human
individuals
at times need systematic thought and rationality, but essentially
they are anarchic and irrational. A starting point for legal studies
might be
that lawyers need to accommodate human individuals to the demands and
opportunities presented by laws. This approach, however,
is relatively rare, and
for that reason law students may not be exposed to the sort of social values
which interest the contributors
to this book. When law is
“personalised” or “humanised” in some of the ways
described by the contributors,
the outcome is very different, no matter whether
that process takes place in New York City, Sri Lanka or Bangladesh.
This
collection of essays follows the formation, by a group of law teachers in
several countries, of an international working group
on social values in law in
1992. As the editors state in their introductory essay,
By social values in law we mean the belief that the primary function of law
is to uphold the values of a humane and civilised society
as expressed in the
internationally accepted canon of fundamental human rights and aspirations.
Maintenance of social values in law
may, therefore, require lawyers to use law
proactively to bring about social change in the interests of justice. It
undoubtedly requires
law teachers to develop amongst students an appropriate
spirit of enquiry that is vigilant to the questions generated by this concept.
(1)
This, of course equates, “justice” with “the belief
that the primary function of law is to uphold the values of
a humane and
civilised society”, and by doing so may invite philosophical or political
disagreement. And law teachers who wish
to educate for social values will find
the avenues available to them for doing so extremely limited. But there are
still opportunities,
and those who might otherwise despair might take heart from
such essays as Professor Phillip Iya’s description of what is happening
at
the University of Fort Hare in South Africa.
THE CLINICAL EXPERIENCE
Many essays in this collection describe attempts to integrate student
learning with “real-life experience”. They describe
several types of
“clinical legal education”. In the context of “educating for
social values” several of the
authors seem to emphasise that the clinical
experience of the law students should be of a special type.
Until the years
1920–1960, even in the United States, most lawyers were trained, at least
in part, by apprenticeship or articles
of clerkship. Law study in a university
was regarded by the professional authorities as a minor part of legal training.
Then, in
the United States, credentialism and the desire of law schools to
dominate legal education finally prevailed, and students were often
admitted or
licensed to practice with no experience at all of legal
practice.2 When suggestions were made that
“clinical” experience might assist students to understand both the
nature and content
of professional responsibility and the nature of law in
action, the professional authorities were receptive. The analogy of the medical
schools, with students and recent graduates treating real patients, especially
the more indigent patients, in the public teaching
hospitals, was also useful.
The legal profession (eagerly) and the law schools (with some reluctance)
accepted that clinical legal
education could be justified, even in the context
of a scholarly institution.
Ideally, in this form of clinical legal education
students practise “poverty law”, under the supervision of
experienced
practitioners who have a primarily teaching role. The legal centre
is controlled by local communities, so that their job, as well
as including the
traditional tasks of advice, representation and negotiation, is to empower less
privileged members of the community.
Indeed, some of the authors in this
collection seem at pains to emphasise that while clinical legal education can
and should train
students in various relevant skills (especially skills of
communication, advocacy, negotiation and research), that should not be
the
primary aim of clinical legal education in “educating for
justice”.
The proponents of clinical programs, for the most part, had
an additional agenda, usually hidden carelessly, if at all. The civil
rights
activism that swept the United States in the late 1950s and 1960s engaged some
law students, who assisted civil rights litigation
in various ways — and
changed or deepened their commitment to law and lawyering. These lawyers, and
law teachers who observed
them, considered that engaging law students in the
provision of legal services to a group of clients who were not businesses might
not only give those clients access to legal services that would otherwise be out
of reach, but might also educate law students by
exposing them to a range of
human predicaments quite often totally alien to the middle classes from which
most law students were
drawn.
Clearly there are tensions between the
objectives of, on the one hand, service delivery to, and empowerment of,
communities and, on
the other hand, those of legal education. Resolving these
tensions is one of the challenges to those seeking to educate law students
for
social values through some form of clinical experience. The essays presented
here are evidence that that type of experience is
not the only means of
educating students for social values, though a common theme is that students who
study and are exposed to the
“law in action” as opposed to
“law in the books” are more likely to develop the spirit of inquiry
that the
contributors consider desirable. As the editors say, “legal
education matters”. Legal education, particularly clinical
legal
education, has frequently been the source of innovations that improve both the
experience of students and the welfare of communities.
Several essays question
the perception that law — and law schools — exist primarily to serve
the business community.
Clinical programs and social action research may develop
students’ critical awareness and make them aware of constituencies
of law
beyond business. While there were links between the “critical” (ie
radical) and clinical legal studies movement,
they were by no means
congruent.
INTEGRATING SOCIAL VALUES IN LEGAL EDUCATION
The case studies presented here examine a broad range of legal education.
They span a new approach at the beginning of law school
studies to the teaching
of legal research and writing through a range of clinical programs, as well as
examples of community legal
education — the demystification of law and
empowerment of disadvantaged groups in Bangladesh, Slovenia and the United
Kingdom.
It is intended that the materials presented can be used as a
“tool kit” for people interested in using legal education
as a base
for integrating social values into law.
The editors see two major approaches
to integrating social values in legal education: clinical education, and through
the curriculum.
Clinical Education
Clinical education seems to dominate the book, probably because it has been
extremely successful in humanising the law for those who
participate in it. In
the United States clinical programs are part of the offering in most law
schools. In the United Kingdom the
law schools have been conservative in setting
their curricula, and the community law centres movement is part of a more
general radical
community action movement and is not so closely linked with the
law schools. Canada and Australia fall somewhere on the continuum
between the
United States and the United Kingdom, and possibly for that reason have
experienced more closely the special tension
that arises between the thrust for
community control of the law centres that serve a special community, and the
need to accommodate
educational objectives and requirements. This is a question
explored sensitively and thoughtfully in the collection by Mary Anne
Noone.
Some academic activities mesh well with community needs, though the
projects may at the time they are initiated appear to have more
academic value
than community value. Bernard K Freamon describes an “action
research” program conducted at the law school
of Seton Hall University in
Newark, New Jersey. Seton Hall is a rather conservative, Catholic university.
Newark is an urban area
with huge numbers of homeless people, largely as a
result of archaic and discriminatory tenancy practices. This is despite the
existence
of “fair” housing laws that prohibited racial
discrimination. Students were encouraged to work in a “Fair Housing
Clinic” and, in the course of enforcing the law, were obliged to work with
social scientists to collect empirical data to support
the cases. In addition,
the law school initiated an “Affordable Housing Colloquium” which
would function outside the
clinic proper but would engage in “action
research”. As Freamon states (at 177–78)
Lawyers are notoriously unscientific in their analysis and use of research
and data and much of what lawyers call “research”
is not worthy of
the name — it is little more than anecdotal storytelling — and it
sometimes leads to terrible discrimination
by judges and legislators. So we
determined that the research endeavour ... would be conducted by well
established and experienced
scholars, policymakers, and researchers, all from
universities, governments and agencies, with a good track record in the
community
and solid experience in the world of litigation and legislation. This
research would accurately inform faculty concerning the empirical
data and other
forms of knowledge needed to educate students and make good decisions on the
legal needs ...
The information generated was fed back into the teaching
program of the law school as well as being used in administrative and legal
proceedings and in lobbying activity. This was particularly important, as judges
had been asking for empirical evidence of the results
of legislation and
litigation. The process took more than five years. The results reflected not
only in concrete results for law
and policy, but also in understanding by
members of various disciplines.
Freamon identifies political and ideological
difficulties within the law school and the University. This would appear to be
universal
wherever either accepted practices are challenged, or academics adopt
and advocate particular viewpoints based on social values.
There are examples of
this in Gary Blasi’s account of the creation of an academic program in
Public Law and Policy at the UCLA
Law School. More familiarly to Australian
readers, Noone gives an account of one of the two major obstacles to the
introduction of
clinical programs in Australia (and, from my observation, in the
United Kingdom and Canada): the view among academic lawyers that
they are
primarily scholars in academic, research-biased institutions, which should not
be involved in practical training, or as
some put it, “technical
training”. The other obstacle has, of course, been the relative cost of
clinical programs.
That argument is quite different from the argument whether
the objectives of clinical programs should be those primarily of community
service or of education. The contributors to Cooper and Trubek’s
collection, however, emphasise education which informs students of social
values, rather than the inculcation of those values. There appears
to be an appreciation among several contributors that the values inherent
in much legal education,
indeed, much law, are those of business and
property. Duncan Kennedy articulated this in “Legal Education and the
Reproduction
of Hierarchy”3 many years ago. This alienates some students
who already have developed their own social values and ideas which
may differ
from those of traditional law teachers.
Minna Kotkin, who had been teaching
litigation skills and employment discrimination at Brooklyn Law School in New
York, recounts the
experience of the Violence Against Women Act Project, which
grew out of a course which had, for many years, involved students in
selected
employment discrimination cases in the United States Federal Court. A new
statute provided an opportunity to overcome what
Minna Kotkin saw as
shortcomings in the existing course. The students not only worked on the
drafting of court documents, but became
involved in community education about
the new law. Despite the fears of students and staff that this would produce a
flood of clients,
relatively few emerged. Some potential litigation was
considered, but none resulted, and this disappointed some students. The major
outcome, however, appeared to be the process of critical reflection on the
process of litigation which the course evoked in many
of the students. This, in
turn, influenced their career choice to some extent.
Maresh provides evidence
that students who participate in clinical education programs are more likely
than other students to engage
in various forms of “public interest”
legal practice after completing their studies. These results speak for
themselves.
Maresh comments on the reason for the change in attitudes:
[T]hey acknowledged a “personalisation” of the plight of the
poor, a realisation that many of their clients needed representation
through no
fault of their own, a recognition that the integrity of the judicial system is
dependent on equal access to representation
regardless of individual resources
... (164)
Any educational experience which does not “personalise”
social differences and differences in attitudes and experiences
of different
social classes is unlikely to change students’ perceptions of social
phenomena, and therefore their attitudes
and social values. Students are
unlikely to comprehend social difference in any concrete way unless they
experience such differences.
Maresh is able to express in a rational way what
was immediately obvious to the early law teachers and students who were engaged
in and by the civil rights movement in the United States and (to a lesser extent
because the numbers were smaller) the anti-Vietnam
war and early community legal
centres movements in Australia.
Curriculum
Traditional curriculums and the pressure to get law studies over and done
with, so that students can get on with the serious business
of earning money and
repaying their student loans, directly impede the development of social values
in individual students. Clinical
programs are one way to counter this. But they
are expensive, and many students may see them as involving unnecessary work
without
corresponding benefits.
The essay by Adrienne Stone is particularly
significant for Australian law schools in this regard. Her essay, and that of
Kim Economides
mentioned above, may be seen too to reflect the opening remarks
of Ms Tan Le. Ms Stone has been both teacher and student in Australia
and at
Columbia Law School in the United States. Her observations focus on the women
who are now a significant majority of students
in most law schools in both
countries. Many women students aspire to public interest practice when they
commence their studies, but
the process of a traditional legal education
can easily dissipate these aspirations or instil the type of cynicism that
Economides discusses.
This is because they are “dehumanised”.
On
the other hand, Amy Ruth Tobol’s essay on integrating critical awareness
in a course on legal research and writing —
typically offered to law
students in their first semester — demonstrates that law schools
themselves can equip law students
to perceive the “hidden agendas”
and underlying values of the traditional law school curriculum by demonstrating
that
the substance and the practice of law embody (and are the result of)
particular social pressures and reflect particular values. By
introducing
students to the practice of working cooperatively rather than as competitive
individuals, they can learn a good deal
about the power relationships reflected
in law. Forewarned and armed in this way, students may be able to avoid some of
the cynicism
and disillusionment that might otherwise be the end result of their
education.
CONCLUSION
“Social values”, however defined, recognise that human beings are
the raw material of society. Law affects people. They
are the subjects and
frequently victims of a legal system. Many law students are kept ignorant of
this fact. Although the formalism
that characterised law and legal education 20
or 30 years ago may no longer be so dominant, the human element in law is still
somewhat
lacking. Attempts to portray the law as rational or systematic are
misleading, and approaches to law such as “Law and Economics”
are
particularly pernicious because, if they consider individual humans at all, it
is as an abstracted mass of people, not idiosyncratic
individuals who are
essentially irrational.
Teaching law so that students are exposed to
questions of values may occur in any type of legal education, whether the
learners are
members of the community seeking information about their rights as
domestic violence victims, tenants, people who have to work with
the law (social
workers, rural development workers, police etc) or law students. Law students
risk avoiding questions of value more
than others, because of the nature and
tradition of law teaching, and the widespread expectation that they will proceed
to work in
commercial law or business. Many will, but if a society based on the
rule of law is to survive, many must work in other areas such
as criminal,
welfare and housing law, where legal skills are needed.
As Stone points out,
every law student needs much of what students in traditional law schools
receive: a knowledge of the substantive rules and practices that
make up law.
Clinical experience is not a substitute for fundamental core material, though in
some situations it may be a vehicle
for learning such matters. What clinical
experience adds, though, in ways that seem highly desirable, is the
humanising element. This would seem the case wherever students are
exposed to real human clients. But clinical learning may, and perhaps should,
have wider objectives. It allows students to gain the ability to comprehend
“law in action”, and that law is more than
rules and books, but a
living system. The human element is a vital part of this understanding, but
there are others. That is why
some questions which the contributors do not
answer are important if one’s concern is specifically community legal
education
or clinical legal education. But these essays stress the important
link between the development of social values and the fact, often
ignored in
traditional legal education, that law is fundamentally about people, and
often people who are particularly vulnerable and powerless.
* A Judge of the District Court of New South Wales since February 1998.
Formerly, a full-time member of the Law Reform Commission
of New South Wales and
before that Foundation Dean of Law and Professor of Law at the University of
Wollongong.
©2000. (1999) 10 Legal Educ Review 209.
1 A Mason, Universities and the Role of Law in Society in J Goldring et al, New Foundations in Legal Education (Sydney & London: Cavendish Publishing (Australia) Pty Limited, 1998) x.
2 R Stevens, Law School: Legal Education in America from the 1950s to the 1980s (Chapel Hill and London: University of North Carolina Press, 1983).
3 (1982) 32 Journal of Legal Education 591.