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Transform—Don't Just Tinker With—Legal Education

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Transform—Don't Just Tinker With—Legal Education \\jciprod01\productn\N\NYC\23-2\NYC203.txt unknown Seq: 1 20-MAR-17 9:15 TRANSFORM—DON’T JUST TINKER WITH—LEGAL EDUCATION GERALD P. LOPEZ´ * In this two-part article, Part I evaluates how the past decade’s “transformation” of legal education amounts so far to just so much time-honored tinkering. Over the past ten years, most schools changed very little, and the small number that changed a fair amount (overwhelmingly in the second and third years) borrowed directly from what other law schools have been doing for decades. Because we must learn all we can from these recent years (and earlier eras), Part I aspires to present in something like realistic form the institu- tional, material, and ideological forces we all encounter and too often reproduce. What makes the past decade’s near-ritualistic experience all the more regrettable is that we have available an alternative vision of legal education ready now for a full roll-out. Because this vision traces its origins, its implementation, its improvements to the best of clinical programs in the United States, cynics will doubtlessly scoff. Facing down the disparagers, Part II will sketch the radically differ- ent assumptions, methods, and aspirations that define how this vision contrasts with the at best status-quo-plus version of legal education strongly internalized and widely practiced. Part I is not at all the “set- up” to Part II, and Part II is not at all an impractical ideal offered to soften the blunt realities portrayed in Part I. The two parts stand alone and belong together, both to chasten and embolden us, at least if we’re willing. TABLE OF CONTENTS Introduction .................................................... 472 R I. The Current Circumstance of Legal Education in the United States ........................................... 487 R A. Sketch of Current Circumstances ................... 487 R B. A Fresh and Familiar Consensus and Menu of Reforms ............................................ 492 R C. Strange and Predictable............................. 494 R * Professor of Law, UCLA School of Law. Deepest thanks to the organizers of and participants at the Clinical Law Review Symposium, Rebellious Lawyering at 25, on May 1, 2016, in Baltimore, Maryland, to the UCLA law librarians (and the late June Kim), and to Damon Agnos, Jessi Bulaon, Stephen Carpenter, Sally Dickson, Tara Ford, Martha G´omez, Jenny Horne, Rusty Klibaner, Andrea Matsuoka, Brenda Montes, Daria Fisher Page, Gary Peck, Luc´ıa Sanchez, ´ Dian Sohn, Kim Taylor-Thompson, Jana Whalley, and those Clinical Law Review practice prohibits me from naming. 471 \\jciprod01\productn\N\NYC\23-2\NYC203.txt unknown Seq: 2 20-MAR-17 9:15 472 CLINICAL LAW REVIEW [Vol. 23:471 1. What Feels Strange ............................. 494 R 2. What Feels Predictable ......................... 505 R D. Sensing Some Other Powerful Force Also at Work . 510 R II. Three Separable Versions of the Same Deep Story ..... 515 R A. Version I - The Popular Portrayal and Critique ..... 516 R B. Version II – The Functional Portrayal and Critique. 524 R C. Version III – The Historically More Particular and Ideologically More Explicit Dominant Story ........ 533 R D. Predictable But Not Inevitable Convergence ....... 544 R E. Yet, Here’s Where We Are ......................... 551 R Appendix 1. Curricular Reforms at Selected Schools 2007-2009 ............................................... 559 R Appendix 2. Current Clinical Offerings at Selected Schools .... 564 R INTRODUCTION What then shall we do about fundamentally changing legal educa- tion? Shall we just encourage every law school to proclaim they al- ready have? After all, during the past ten years of colossal agitation over the quality of legal education, several high-profile law schools claim to have revolutionized the curriculum for the first time since 1870. In fact, they appended only this or that feature to the same basic design, and all the newly implemented components had already been part of curricula at other institutions. And other law schools have fol- lowed suit. You get the point. We could simply declare victory and evacuate this godforsaken territory. That’s the message many people I know have taken away from the past decade. Certainly those who favor nothing more than at most status-quo-plus changes excitedly convey triumphant closure in every way they can. And those who conscientiously and optimistically en- gaged (on special committees, as part of national coalitions, with the state bar, before the ABA, with the AALS) anticipating fundamental change feel “duped,” “frustrated,” “cheated,” “mugged,” “suckered,” “double-crossed,” and “furious.” Many who pursued reform share a sense of “I’m done with all that, maybe forever.” Finally those who predicted from the start the exact unfolding of events and certainly the outcome wonder why we must repeat this elaborate ritual when, in their eyes, the results and effects can be described as pre-determined. Repeat: Declare victory and evacuate this godforsaken territory. We can learn far more, though, from our most recent profession- wide focus on the quality of legal education. We not only can, we should. At least we should if we count ourselves as among those who think far more should have come of all the exceedingly smart sweat labor. If we count ourselves as among those who cannot abide the \\jciprod01\productn\N\NYC\23-2\NYC203.txt unknown Seq: 3 20-MAR-17 9:15 Spring 2017] Transform—Don’t Just Tinker With—Legal Education 473 hyperbolic marketing of only modestly reformed legal education. If we count ourselves as among those who do not want again to be hood- winked into huge amounts of work doomed almost immediately to vanish from memory like the report of yet another task force. Indeed, we should if we count ourselves as among those who simply care to learn about how institutions, systems, and cultures work. And if you just happen to be weird like me, there’s an even more immediate here-and-now reason. If you’re a holdout who believes we’re not yet finished with this period of unrest, if you’re a holdout despite the largely successful efforts to declare an end to this chapter in the history of legal education, if you’re a holdout despite the ex- haustion and perhaps disillusionment visible in some of the most ex- traordinary advocates for fundamental change, then you may want to treat what we can learn from the past decade as essential feedback. How can we holdouts do better? If we want to transform systems, we must understand how people have managed to resist, deflect, and channel radical and reform initiatives. That’s how I found myself at the keyboard banging out my expla- nation of what has come to pass. Working with, watching, hearing from, reading about many involved in separable and collective efforts to change legal education has helped me take in, as always, varied perspectives and divergent experiences. Taking stock helps me grapple with where we are now and helps me confront just how well I have comprehended the circumstance. In this two-part article, I mean to evaluate afresh the tinkering in order to work through with others how to transform the seemingly unchangeable. Much as many others have contributed to what I feel and think, my depiction will extend beyond where even my most trusted advisors would have me go. They agree entirely with writing about what has occurred thus far. After all, we in the legal profession, and particularly in legal education, have just been through a turbulent period. Serious critiques of legal education, deepened and sharpened by the pressures of the Great Recession, dulled the luster and even threatened the credibility of law schools. Wouldn’t such forces produce an environ- ment hugely favoring the changes long urged by dreamers of all sorts? Besides, inside and outside critics were not just carping without a plan. At least some came equipped with wide and deep, legitimately lauda- ble proposals. My trusted advisors agree, too, that over roughly the past decade, those driven to improve legal education have done what they could. These crusaders are a motley crew. They include dedicated main- stream idealists and radical utopians. They have been resourceful and even ingenious. They deserve thick written case studies commemorat- \\jciprod01\productn\N\NYC\23-2\NYC203.txt unknown Seq: 4 20-MAR-17 9:15 474 CLINICAL LAW REVIEW [Vol. 23:471 ing their efforts. Some managed to succeed, impressively compared to what insiders would have predicted, modestly compared to what they sought. Others invested great ingenuity and resolve only to fail, in some instances enduring rough reversals after initial successes. Still others never introduced a formidable proposal; they could not imag- ine successfully bucking the odds. Especially with the end of the Great Recession, with curricular weariness overcoming many, the time for fundamental change may well have come and gone. Go ahead and report what has taken place, exhort my advisors, and offer a diagnosis about why. Most of those I work closely with think material forces—vested interests in the status quo—tell the entire tale we need to acknowl- edge. They would have me portray how those forces entangle and strangle even the worthiest transformational proposals. Then they would have me call it a day. Over. Hard stop. I respect this opinion. I especially do because at least some of these sage advisors predicted with great accuracy how this past decade would unfold and how it would end. When these women and men bet, they win seemingly as often as most casinos. And I’m not holding a straight flush, much less anything royal. Still, I’m challenging the house. I think they’re all missing what’s there to see or dismissing what they do recognize as neither here nor there.
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