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Max Weaver, Clinical Legal Education - Competing
Perspectives, 17 Law Tchr. 1 (1983)

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 CLINICAL LEGAL EDUCATION-COMPETING
PERSPECTIVES
By MAX WEAVER*

1. ASSUMPTIONS AND PRELIMINARIES

LAW is a highly formalised and institutionalised social phenomenon.

Tautologically, if not formalised and institutionalised to some significant
extent, it is not law but (e.g.) morality, and if not social it is but an elegant
system in the books, no more "efficacious", in Hans Kelsen's sense, than
Roman law is in Britain today or than a Bill which has not received the
Royal Assent.
A legal system, because it is formalised and institutionalised, will appear
to be "relatively autonomous" (Balbus, 1977); but this appearance, whilst
an important factor in maintaining legitimacy, can and does mislead. A legal
system is a special part, but nevertheless a part, of a complex, conflictual
and changing world. It would be unreasonable to expect it not to provide
the forum in which some of that conflict and change takes place (Atiyah,
1979 and Weaver, 1978).
The appearance of the system of rules as consistent and, somehow, given,
is a related source of mystification. Especially relevant for our purposes is
the static, snap-shot quality reflected in the conventional, or ritual, ending
of the textbook preface with the formula, "The law is stated, to the best of
my knowledge and ability, as at Ist April 1984". The writer, and the ex-
perienced reader, know that the snap-shot is a poor substitute for the
video-camera and recorder but, if any technological investment is made, it
is in a single-reflex lens camera with better close-up facility than his present
"Instamatic". The concern is with the better arresting of movement and not
with accurately recording it. We in legal education are of course dealing
with inexperienced readers, who have nothing with which to compare the
snap-shot. It is as if they had spent their legal lives in photo-albums and art
galleries, unaware of the cinema or television. Their ordinary lives are of
course different, but the special separating, autonomy-suggesting, qualities
of law have a powerful emotional appeal and discourage frequent com-
parison of law in books with ordinary, everyday experience.
A more specific illustration may be helpful. The paradigm contract case
is that of a sale, usually with a time lag. It is "a sale of futures" (Macneil,
1981, p. 6 1), but the future is brought into the present' and allocated there
and then as risks between the contracting parties. However this once-and-
for-all "presentiation" is nowadays a highly unusual pattern. Most contracts
are part of a series, or a complex relational pattern, the understanding of
which is hindered by the paradigm. Mercifully an alternative or two are now
available, but we have been slow to add them to our conceptual tool-kit
(Macauley, 1963, Freedland, 1976, Beale, 1980 and especially Macneil,
1981, pp. 64-5).
Although formalisation and institutionalisation may or may not be
chronologically prior in whatever evolutionary processes produced our
recognisable legal system, we are where we are. The forms and institutions
are established, and in the working of the relatively autonomous system
the forms and institutions have a logical priority.
It is important to remember that there is nothing distinctively legal about
rules and principles. They are a commonplace feature of informal and
*LL.B., Dean of the Faculty of Administrative Studies and Head of the Department of Law
and Government, Polytechnic of the South Bank.
i.e., the time of formation.
I
 2 MAX WEAVER

uninstitutionalised relational patterns. Indeed many legal rules are precisely

the same in substantive content as rules of general or limited moral codes.
Thus the law, general morality and the norms applying in my family, or
amongst law teachers, all prohibit killing other human beings (except in
self-defence) and theft of each other's property (but not ideas), and insist
that promises seriously made should ordinarily be kept.
The law's principal distinctive features lie not in substance but in process.
It is the processes by which rules and principles evolve, are promulgated,
apprehended and enforced on which we must concentrate (Macneil, 1981,
p.68, Polytechnic of The South Bank Degree scheme, Introduction, Sum-
mers, 1974, and Weaver, 1978). This central conception of law as a special
process not only fits easily with the conception previously emphasised of a
formalised and institutionalised phenomenon but also reinforces the criticism
of, the snap-shot approach. The snap-shot is of a product, a particular
collection of rules and principles. One has only to contemplate the manu-
facture of spaghetti to appreciate that product and process are not to be
conflated or confused. Nevertheless that is what conventional legal scholar-
ship and legal education typically do.
If legal education is education about law then it is self-evident that the
best methods of legal education are those which most adequately elucidate
the law at the macro- and micro- levels. If the law is essentially about pro-
cesses then we must include some methods which bring out this character-
istic and provide some counter-balance to the inevitable tendency, because
one is looking in detail at rules and principles, to look only at rule-products,
statutes, judgments and textbooks.

2. MODELS OF LEGAL EDUCATION

This section indicates the range of choice open to legal educationalists. It is

included to provide some answer to a specific version of the question put
in the last paragraph above, 'Why clinical legal education?' After all it can
only be carried out at the expense of some other method. There is an
opportunity cost.
This section is based on evidence prepared for the Benson Commission 2
and subsequently modified for a special conference of the Association of
Law Teachers in 1980 (Weaver, 1980). It was there argued (p.56) that these
"ideal-types", whilst not descriptions of reality, are useful in analysis, and
that "in one way or another we must find a place for each ... within the
curriculum".
The next section (3) applies a similar analytical technique to clinical
legal education, but does not argue that each model has validity and must be
accommodated.
The apprenticemodel
One can learn by watching the experienced and by doing under the
supervision of the experienced. We see it in articles and pupillage, and when
it works well it certainly does not exhibit the "snap-shot, rules as products"
syndrome. Cases are followed through. The client's interests are apparent.
The way in which a case changes over time and the importance of evidence
and finance are brought home to the apprentice.
Nevertheless it is piecemeal, slow and rather difficult to predict and
control. It does not readily accommodate broader institutional or social
considerations. It concentrates on cases and clients-on the pathology of
the system. The well-analysed statute is rarely subjected to prolonged
2 Cmnd. 7648 of 1979.
 CLINICAL LEGAL EDUCATION-COMPETING PERSPECTIVES 3

consideration because it works without producing the pathological features

which generate clients and cases.
Formaleducation: the substantive model
To overcome some of the disadvantages of the apprentice model,formal
educational programmes have evolved. The most common and influential
of these, in the United Kingdom at least, concentrates on a systematic ex-
position of the rules. It emphasises products and ignores processes even in
its case-orientated version. Cases are considered as evidence of the rule and
not as particular products of an on-going legal process.
Formaleducation:the skills model
This has two main variants, case method and the clinical approach.
Case method. Cases can be used not merely as evidence of a rule but as
sources from which legal craftsmen can draw out competing arguments.
Professor Dworkin has reminded us that argumentsfor the rule are the stuff
of the common law system (Dworkin 1977, p. 112). Here at least a part of
the wider legal process can be seen in operation. It is evidently a process
and the "snap-shot, rules as products" syndrome can, with care, be avoided.
Nevertheless it is only argument and adjudication which are examined. The
complexities of evidence, procedures and finance and their interaction over
time are not brought to the student's attention, and there is little incentive
for even the broader view that a consideration of parliamentary legislation
requires.
The clinical approach. The terminology is drawn from medical training,
and there are obvious similarities to the apprentice model (above). If the
objectives of the clinical approach are achieved it combines the virtues of
the apprentice model and of the skills-orientated version of case method. It
can also avoid some of their disadvantages. It may be more predictable and
controllable than the apprentice model, especially if simulation techniques
are employed. The student can be subjected to a more programmed and
broader range of experience than is possible when simply bound to one
master craftsman. The student will be confronted with all the difficulties of
facts, finance, time and procedure which case method ignores.
Nevertheless as a method of covering the ground it is slow and does
little to provoke systematic and institutional considerations; nor does it
invite the critical evaluation of the legal process or its products. It does
however provide material for such a critical evaluation once the student is
persuaded to embark upon it.
The policy model. If the law is clear, consistent and certain, critical
evaluation can only be of policy, and the intending practitioner may well
say that he or she has no concern with that. However the law is frequently
far from clear, consistent and certain. It is the forum for conflict between
individuals, interests and groups of varying influence and power. The difficulty
here is one of making connections between the grand theories and the micro-
events at the level of clients and cases. If this is surmounted the value to be
gained from pursuit of any of the other models can be greatly enhanced.
3. MODELS OF CLINICAL LEGAL EDUCATION

There is no single form of clinical legal education. The models explored

below may provide a basis for the analysis of current practice and for choice
by those considering its introduction.
Our concern will be with purpose. It is assumed that the purpose will
affect the practice, though there may be some point, some other time, in
examining the validity of that assumption.
 4 MAX WEAVER

Two other questions should be noted as affecting our purposes, our

choice between practices. First, how important are the student's prior ex-
periences of education generally and of legal matters in particular? Second,
how far is legal education a preparation for legal practice? In the writer's
view, which will become more apparent as the models are outlined, neither
question is of great significance. If one is engaged in legal education at all
one must confront an educational tradition which has presented knowledge
at the expense of analysis and understanding, which knows no route from
A to Z save through all the other letters of the alphabet in proper sequence,
and which assumes that A is the starting point and Z the destination.
Understanding the legal process necessitates a more complex mode,
because the law cannot be reduced to a simple, uni-linear, uni-directional
sequence. If this difficulty can be successfully dealt with the student will
have grasped something capable of application in other academic studies,
in business, commerce and administration, and in legal practice.

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.

The personaldevelopment model

The most influential body in the second wave of clinical legal education's
development was the Commission for Legal Education and Professional
Responsibility. The Commission's very title, and the demeanour and writing
of its president, William Pincus, typify a view of clinical education which is
centred on the student's personal development. The model holds that the
student will not realise his or her potential unless challenged by something
more pressing than an essay on the sovereignty of parliament after E.E.C.
entry or advising X whether the House of Lords might, in an unguarded
moment, uphold a judgment of Lord Denning.
It will be readily apparent that this model runs most of the risks identified
with other models. Nevertheless, best practice in the United States demon-
strates that the student can develop dramatically by this means, and not at
the client's expense. It is also obvious that simulation can only play an
ancillary role in a programme founded on this model. In order to protect
the client the student will for example, practice cross-examining a key
witness. The supervisor may play the witness role, perhaps exploring several
possibilities. The whole may be video-taped and subjected to critical
analysis. This, often highly instructive, procedure is not an end in itself,
but a means to the end of winning tomorrow's case, if anyone, however
experienced, can.

The transition/flyingstart model

In this model the student is seen as confronted with a problem of tran-
sition. It is exemplified in the approach to legal education adopted by the
Ormrod Report". There is the academic stage and there is practice; some-
thing, be it a vocational year, articles or pupillage, must bridge the gap. In
the U.S.A. this gap may appear more acute since professional qualification
does not normally involve an apprenticeship period. Hence clinical pro-
grammes develop in the final year of law school to give purpose to the
activity of a third-year post-graduate student who wants to get on with the

4 Report of the Committee on Legal Education, Cmnd. 4595 of 1971.

 6 MAX WEAVER

job. The extensive programme at Georgetown University, Washington D.C.,

exemplifies this approach. If we have confidence in articles and pupillage,
in the new Law Society Finals course and in the chambers exercises, we
have less need of this model in the law school. The academics can do it their
own way, confident that the professional stage will complement and com-
plete the picture.
Such a view too easily accepts the academic/professional dichotomy.
It may have been a sensible political strategy at the time of Ormrod thus to
carve up the market, to satisfy the competing interests by separation rather
than reconciliation, but it avoids fundamental questions about the purpose
of the academic stage. It tends to assume that the substantive model,
supplemented by a little case-method and a touch of policy, in the form of
a brief consideration of Plato, Aristotle, Aquinas, Hobbes and Locke, will
suffice to justify three years of study.
In one sense of course it does suffice. There is more than enough
material to analyse and absorb. Of course it is true that some practitioners
actually use information about the content of substantive rules that they
acquired at the academic stage, with techniques that they acquired through
professional training and experience. But do they not normally check their
memory against some volume from the Common Law Library? Could it
be that they accurately recorded an inaccurate statement offered by a
lecturer? Might not the law have changed in the several years that have
elapsed? Would one be guilty of negligence if one did not check?
The academic stage does not simply provide a pool of knowledge which
later learned techniques will render applicable and useful. Any study of law,
for any purpose, is distorted unless it captures the central feature that law
is a process. In learning about it as a process one becomes involved in its
application. A legal theory which fails to take account of the fact that law
is in action, in process, that legal questions are continually emerging, being
fashioned and re-fashioned, answered and re-answered, is a worthless and
vacuous theory. The only worthwhile theories are those which help one to
understand practice. So, along with the academic/professional dichotomy,
this writer would also reject as false the theory/practice dichotomy. In so
doing, the ultimate validity of the transition model is undermined. Never-
theless, the best practices inspired by this model are probably still valid. In
order to bridge a gap which should not exist techniques have been adopted
which, if widely applied in the law school and in professional training, may
render the gap illusory and a thing of the past.

The process model

It has been argued that the point of any legal education is to understand
more of the legal process. Clinical programmes capture aspects of that
process which others cannot or tend not to emphasise. As has been argued
in considering the transition model, legal education should be seen as edu-
cation about a process-from the outset. Clinic thus has a vital role to play
at the academic and professional stages. There will be variations of emphasis
and investment and there should be caution on one point, over which the
academics are perhaps best-fitted to guard. Helpful though clinic may be
it is not self-sufficient. Case-method and the policy model each have a vital
role from the outset and, especially as craft-skills increase after a year or
two in legal education, the substantive model can be employed to cover
some ground more rapidly.
 CLINICAL LEGAL EDUCATION-COMPETING PERSPECTIVES 7

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

The benefits of clinical programmes have been emphasised in this article.

Their disadvantages must also be faced. Dealing with them is costly and
the resources will have to be taken from other activities in the law school.

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.

Time and disruption

Staff and students will find clinical work time-consuming and disruptive
of other activities. Even in simulations it is difficult to confine everything
to the timetabled hours. An extended exercise that eliminated the unpre-
dictable would be self-defeating.
Clinical programmes can hardly avoid a certain glamour and will thus
distract from other activity. They may call other activities into question
as being less worthwhile, or the staff who engage in them as less able.
Clinical programmes are, as the Kent experience and that of several U.S.
law schools illustrates, potentially divisive. Clinicians will help if they
recognise that they play a part in a wider programme and engage in some
of that programme's non-clinical elements. Non-clinicians will help if they
' See McKenzie v. McKenzie[ 19711 P.33.
8 MAX WEAVER

adopt a position which goes beyond benevolent or malevolent neutrality.

They should be asking what is being learned from the clinical programme,
building on it and feeding it into their own courses. To cite an example from
the Polytechnic of The South Bank programme, the second year of the
course includes an extended simulation of an accident case. This can be
linked with a policy-oriented examination of the Pearson 6 debate to the
mutual benefit of both elements of the course. The clinical programme is
enhanced by the identification of policy factors which are in fact at work
in day-to-day litigation. The policy course is enhanced by a more complete
appreciation of the litigation process and its extraordinary transaction costs.

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.