The problem with clinical legal education

A WSJ op-ed criticizes law school clinics as mainly just offering the “legal professoriate a way to engage in political activism” rather than offering hands-on legal experience, their original purpose. It wonders “why more clinics don't represent small-business men,” and says:

If law schools were really serious about preparing students for their legal careers, every one would have a transactional clinic for small businesses. The vast majority of lawyers advise clients on business deals -- negotiating contracts, setting up corporations and partnerships, trying to avoid legal and tax liabilities, and arranging securities offerings and registrations. Struggling businesses, including those run by minority entrepreneurs, are hurting for lack of such counsel.

I agree with this. I note that there is some of this going on. My alma mater, the University of Chicago, does offer such a clinic with its other clinical offerings, described on its website:

Launched in 1997, the clinic is a partnership between its libertarian parent organization, the Washington-based Institute for Justice, and the University of Chicago law school. Its primary function is to help make the American dream come true for Chicago-area small-business owners, using a staff that consists mainly of University of Chicago law students. The clinic provides advice and helps eliminate regulatory red tape so its clients can get their businesses started or keep them afloat.

Also, I learned at the AALS about the University of Missouri/Kansas City’s Entrepreneurial law clinic. Here's a description:

Under faculty supervision, students will counsel start-up companies and their owners and implement business plans by drafting articles of incorporation and organization, by-laws, operating agreements, partnership agreements and other business contracts. Other business-related matters ranging from regulatory, consumer, licensing, and taxation requirements; copyright, trademark, and patent creation; and 501(c)(3) applications for non-profits may also be covered in this course. Classroom instruction in the areas of client counseling, business planning and drafting of business documents.

Even if law school politics demand that they must have some training for political activists, why don’t more law schools offer both types of clinics? I suspect this has something to do with the local bar’s concern with the clinic edging out from the truly indigent to poaching their clients. This fear of competition is at least partly responsible for clinical education's focus on the poor.

There's also undoubtedly the fear of traditional clinical law professors that entrepreneurial clinics will poach their students.  But I think there's room for both types of clinics. And the real question is the students' interests, not those of their professors.

Whatever's driving the paucity of entrepreneurial-type clinics, this needs to change. This is important training for the real world of law practice that is not being done either at law firms (now focused on squeezing as much profit-per-associate as possible) or in law school classrooms.

In other words, the problem isn’t just, or maybe even mainly, what the law schools are doing with clinical education, but what they’re not doing.

Comments

[William Henderson]

Larry, I agree with this post. (And add IU Bloomington to the list of business clinics; ours started this fall.) Two empirical points and an anecdote to back it up:

(1) A replication of the famous Chicago Lawyers study in 1995 found that 2/3 of all lawyers in private practice worked for business clients. In the original 1975 study, it was divided roughly one-half between business clients and personal services work, such a family, probate, and personal injury. The 1975 division was the basis for Heinz and Laumann's famous "two hemisphere" theory. Further, some of the personal services work is simple business formation for individuals, such as forming an LLC or incorporating a local business.

(2) Many clients are focused on trial practice, but trials are vanishing in both state and federal court. See Galanter study in Journal of Empirical Legal Studies. The reasons for this trend are complicated and perhaps troubling. But there is nothing on the horizon to suggest that it will reverse itself. Thus, law schools need to consider appropriate ways to adapt, as failure to respond will, in the long-term, compromise the career prospects of graduates.

(3) In terms of anecdote, I teach a business planning class that uses a simulation method. Students write a very complex LLC operating agreement (including intricate tax provisions), learn about the dangers of selling an unregistered security (by the client doing just that), and compare various methods of business finance for the purpose of making a recommendation to the simulated client. The course is a huge amount of work for a small enrollment, but students are really hungry for this type of practical training.

By the way, it has been my experience that a business law clinic really resonates with alumni. Obviously, despite the lack of formal business training in law school, most alumni work for business clients.

[Ann]

I think that the main problem is that it costs a lot to schools to improve clinical education and before they see any profit they won't do that.