Law School Clinics Research Articles

The violence of silence: some reflections on access to information, public participation in decision-making, and access to justice in matters concerning the environment

The proposition put forth in this paper is that whether—and the extent to which—harm or potential harm to the environment (its natural resources, living beings, and their ecosystems) is identified, resisted, mitigated, or prevented is linked to the nature and scope of public access to information, participation in governmental decision-making, and access to justice—which are often referred to as “environmental due process” or “procedural environmental rights.” Using examples in the United States of attacks on law school clinics and denial of standing in court, this paper argues that restrictions on public access to information, participation in decision-making, and access to justice create legacies and “cultures of silence” that reduce the likelihood that future generations will be willing and able to contest environmental harm.

Educating the Next Generation of Health Law Leaders: Medical-Legal Partnership and Interprofessional Graduate Education

Today, universities are challenged with preparing students to work in a new, complex, and rapidly evolving environment. Students will face challenges in the workforce that are multifaceted and, as such, require the type of creative and effective problem solving that is only achievable in an interdisciplinary response. The interdisciplinary experience provides an understanding of other disciplines’ knowledge bases and when to seek assistance from each. Without this interdisciplinary foundation, students will be unprepared to interact with other professionals, and confusion, delays and poor outcomes will result. This is especially true in the fields of law, medicine, public health and social work. The medical-legal partnership model presents an unparalleled model of interaction between multiple disciplines with the goal of improving social conditions that affect health outcomes for low-income people. This article describes how to adapt MLP best practices to the graduate school setting. Through the story of the Health Justice Project, the article shares practical insights into the process of creating a medical-legal partnership clinic that enrolls students of law, medicine, social work and public health. In addition, this article provides an overview of the key components for a successful medical-legal partnership in which the legal partner is a law school clinic or practicum course.

Innocence and Federal Habeas after AEDPA: Time for the Supreme Court to Act

New empirical research shows that, since AEDPA, the likelihood of success in non-capital federal habeas corpus has dropped to less than one percent. Federal habeas courts continue to be concerned about the wrongful conviction of innocent defendants, but their role in such cases must be redefined. Habeas courts are structurally incapable of effectively screening and investigating claims of wrongful conviction; these responsibilities are better performed by extrajudicial actors such as innocence projects, innocence commissions, law school clinics, volunteer lawyers, and the media. The proper role of habeas is to provide a clear path to relief, unencumbered by procedural restrictions, for petitioners who can produce clear and convincing new evidence of innocence. The Supreme Court should help to create such a path by finally acknowledging the constitutional status of “bare innocence” claims based on new evidence.

Hard Lessons: The Role of Law School Clinics in Addressing Prosecutorial Misconduct

This Article approaches prosecutorial misconduct from a pedagogical perspective by exploring the ways in which law school clinicians can teach their students how to confront the problem proactively and in-the-moment, with an eye toward reducing its rate of occurrence and blunting its corrosive effect. Prosecutorial misconduct is a serious problem that strikes at the heart of a criminal defendant’s constitutional right to a fair trial. More broadly, it has the potential to impact the integrity of the criminal justice system as a whole. Educating law school students in criminal clinics about this issue before they become prosecutors and criminal defense attorneys serves three important goals. First, such instruction can act as preventative medicine by reducing the likelihood that future prosecutors will step over the line out of ignorance of the applicable case law and court rules or out of a misplaced desire to win at all costs. Second, it enables future defense counsel to develop litigation methods designed to prevent the problem from occurring in the first instance. Third, it can prepare defense counsel to recognize prosecutorial misconduct that proves unpreventable so that she is able to respond effectively in-the-moment rather than belatedly, after the harm has been done. The blended learning approach that is the signature pedagogy of the clinical classroom is well-suited to addressing prosecutorial misconduct because it provides an opportunity for students to engage in a frank and thoughtful dissection of the legal and ethical issues that are inextricably bound up with it. The model I propose combines instruction in black letter law, ethics, and skills acquisition. It also seeks to have clinicians model the process of analyzing and responding to prosecutorial misconduct using examples from their real world experiences. With this approach, students will learn to think critically about their roles and responsibilities as future prosecutors and defense attorneys and to develop sound professional judgment before they enter the whirlwind of practice.

Helping Haiti in the Wake of Disaster: Law Students as First Responders

On January 12, 2010, a devastating and catastrophic 7.0 magnitude earthquake struck Haiti. A week after the earthquake, and only a day after the United States designated Temporary Protected Status (TPS) for eligible Haitians living in the U.S., University of Miami law students, faculty and other volunteers became legal “first responders,” assisting those in need. As Miamians, we all recognized that the tragic events of January 12 had affected not only those Haitians in Port au Prince, but the entire Haitian country and diaspora. Haitians here in the United States were anxious to help financially but many lacked work authorization. In a country where remittances were already equal to 30% of the pre-earthquake gross domestic product, a program that would deliver employment authorization documents to previously undocumented Haitians held tremendous promise as a means of infusing cash where it was most needed - directly to family and loved ones back in Haiti. Our law school clinic does a significant amount of immigration status adjustment work and has experience applying for fee waivers from United States Citizenship and Immigration Services (USCIS). This is the story of how we put an immediate-need and longer-term TPS service effort together, the lessons we learned in doing so, and what we believe to be a sustainable clinical pedagogy and law school service model built around disaster assistance and recovery. We begin by examining how lawyers and law students have traditionally made valuable contributions to disaster response by using their legal training. All too often, those efforts have been hampered by the ad hoc nature in which they have been constructed post-disaster, and by the limitations inherent in the relatively small number of lawyers available to offer significant amounts of time to the overwhelming number of disaster-affected individuals. Recognizing this, many volunteer agencies and legal services providers have sought to improve the response time, quality, and quantity of post-disaster legal assistance by preparing materials and training volunteer lawyers in advance. Our proposal incorporates and builds on these improvements by arguing that law students and law clinics are a veritable “army” of untapped potential legal resources that could be configured to provide quick legal responses to emergencies and disasters, targeted to enforce disaster victims’ basic needs. We encourage the legal community that is already working on emergency and disaster preparedness, relief and recovery to include law school clinics and students in their present efforts; and we encourage law school clinical instructors and pro bono programs to give serious consideration to incorporating legal first response into their pedagogical and service programs.

Can Preemption Protect Public Participation?

This article argues that federal law would preempt state legislation to prevent law school clinics from helping clients participate in implementation of environmental laws. The article first discusses the role of public participation in the regulatory process. Next, it reviews the history of a 2010 legislative effort to de-lawyer the clients of the Tulane Environmental Law Clinic and shows that an effort to enact de-lawyering legislation is a disreputable tactic. Next, the article demonstrates that laws that would de-lawyer an environmental law clinic's clients would conflict with Congress’ mandate in environmental laws for enhanced public participation and would lack a reasonable relationship to a legitimate state purpose. The article then shows that attorney fees may be available to plaintiffs in preemption challenges to de-lawyering bills under 42 U.S.C. § 1983. The article concludes that, in the context of environmental law, state de-lawyering laws are not only unwise, they are illegal under the Supremacy Clause.

Embedded Librarians: Teaching Legal Research as a Lawyering Skill

The current movement for reform of legal education focuses on teaching both knowledge and practical skills in combination, as recommended in the 2007 Carnegie Report, Educating Lawyers. In light of technology that now makes masses of law and related information available online, unorganized and seemingly unmanageable, this article proposes that law schools draw on the professional skills of their law librarians to teach students advanced legal research and analysis by embedding them in law school clinics. It outlines a pedagogy for teaching legal research in clinics as a lawyering skill, complete with ethical responsibilities and professional standards, consonant with the recommendations of the Carnegie Report, Educating Lawyers, the 2009 Boulder Statement on Legal Research Education, and the 1992 ABA Taskforce on Law Schools and the Profession, Legal Education and Professional Development (the MacCrate Report). It examines how the relatively new trend of embedding librarians in practice settings, offering assistance at the point of need, could be effective in law schools. Finally, it advances a model for embedding law librarians in law school clinics based on the experiment conducted at the UDC David A. Clarke School of Law, begun by first embedding one librarian in the Juvenile and Special Education Law Clinic and then continued by adding on other clinics. This article has been accepted for publication in the Journal of Legal Education.

Controversy, Conflicts, and Law School Clinics

This article is about the risk of retaliation that is inherent in a law school clinic’s decision to help clients express views that influential members of society may find controversial. The article examines a series of issues related to clinicians’ management of this risk, including (1) whether cases that offend university donors or other powerful defendants create ethical conflicts for clinics, (2) whether clinicians should consider potential impacts on their home institutions when selecting cases, (3) whether clinicians and administrators of educational institutions should share information about case selection in an effort to manage risk; (4) whether clinicians can insulate their programs from criticism by a) representing only the poor, b) preserving spotless ethical records, or c) handling only claims that are worthy of vindication; and (5) whether law schools should limit clinical offerings to subject areas that are relatively unlikely to annoy society’s movers and shakers. The article suggests resolutions to each of these issues, offers advice about clinicians’ best tools for managing controversy, and urges law school clinics - and the institutions that house them - to live by their values.

Deportation Process Penalizes Mentally Ill Immigrants

Deportation Process Penalizes Mentally Ill Immigrants

Medical Legal Partnerships: A Key Strategy for Addressing Social Determinants of Health

Medical Legal Partnerships: A Key Strategy for Addressing Social Determinants of Health

Private Actors, Public Rights: Surrogate Litigation and Press Rights in a Post-Newspaper Age

By lavishing attention on the implications of diminished news-gathering for an informed society, and striking about for new business models, we have glossed over a more threatening dimension of the news-gathering crisis: the looming erosion of the legal landscape upon which newspapers and other media entities have relied to conduct effective news-gathering. Those rights are gradually disappearing. The era in which a single industry could single-handedly shoulder the costs of litigation required to preserve and enforce necessary First Amendment and statutory entitlements is gone. Law school clinics are perfectly positioned to address the void in private actors' enforcement of crucial, publicly held press rights.

The Clinical Legal Education Movement: Observations for New Teachers

The article is a developed version of the keynote address given at the Association of American Law Schools Workshop for New Law School Clinical Teachers, June 2008. It discusses the development of the clinical legal education movement, issues facing the movement today and relevant organizations and resources. It ends by identifying several challenges for the new clinical legal educator.

Legal Aid, Law School Clinics and the Opportunity for Joint Gain

This article identifies the shared origins of the legal services and clinical legal education movements and posits that both would benefit from renewed attention to historic connections, collaboration and synergies. In particular, the article suggests that law school clinics - with their freedom from significant funding restrictions and access to research universities - can serve as sites of inquiry to inform a renewed and robust anti-poverty agenda.

Advancing the Future of Family Violence Law Pedagogy: The Founding of a Law School Clinic

This Article advocates for law schools to integrate family violence law further into their curricula and proffers reasons why family violence training is critical in preparing students to practice law. The authors posit that although live-client specialty clinics are the most in-depth way to teach family violence law, the topic should also be offered through doctrinal courses, externships, or general subject matter clinics. The Article then describes the authors' own experiences in cofounding a child advocacy clinic in New York City, outlining the steps taken to transform a vision into the actual formation of a clinic. Finally, the authors conclude with thoughts about the future of family violence law in legal academia, including mandating family violence law education for all law students.

The Use of Therapeutic Jurisprudence in Law School Clinical Education

William and Mary Law School, a public institution of the Commonwealth of Virginia, its roots deeply entrenched in the archives of legal learning, might not be a place you would expect to see an externship with the heading Therapeutic Courts Practice. However, the law school as part of its mission to produce graduates who are not simply powerful advocates and wise counselors, but also honorable and concerned human beings and good citizens has taken up the cause of Therapeutic Jurisprudence and problem-solving courts. In Part I of my paper, I discuss the basic tenets of Therapeutic Jurisprudence and how it integrates quite nicely with clinical education. Part II is reserved for a discussion of problem-solving courts, sometimes called therapeutic courts. Further, I describe the close relationship that exists between Therapeutic Jurisprudence and problem-solving courts, and how the two complement each other. Part III introduces the William & Mary Law School model of a therapeutic courts externship and how students are introduced to the principles of Therapeutic Jurisprudence. It is here that the nuts and bolts of the course are described in some detail. This part also serves as an opportunity to discuss Virginia's Drug Treatment Court Program, including the use of juvenile, family and adult drug treatment courts of the Commonwealth in placing externs. It is here that I also pay particular attention to the reactions of students to the therapeutic externship experience. My hope with the student reports is to convey a very consistent and important message heard from my students: Therapeutic Jurisprudence has a real place in the law school curriculum, and is especially useful in the clinical and legal skills area. I have devoted the major theme of this paper to the creation and implementation of an externship devoted solely to the practice of therapeutic courts. It is my hope that others will consider doing the same. In its relatively short life span it has proven exciting, invigorating and stimulating to students. In evaluating any new program or course, student reaction is one of the most important considerations. As good vibes continue to flow from the experience, good will for Therapeutic Jurisprudence continues to build with law school administration and faculty, many of whom were skeptics in the first place. At William & Mary Law School, I'm grateful that when opportunity came knocking, someone was listening. To some, opportunity is seen as a risk or chance. To others, it is viewed similarly but with an added sense of advancement for the common good. The opportunities that are present with a program in Therapeutic Jurisprudence and an externship in Therapeutic Courts Practice are endless. As we all labor in the vineyards to enrich the lives of our student's legal education, let us not be afraid to do what we teach our students to do, think and discover the possibilities and then in turn, seize on the new opportunities of the day.

The MacCrate Report and Education in Law Firm Management and the Use of Technology in Law Firms

Beginning in the 1950's reformers proposed law school courses and clinics that would teach practical skills through individualized instruction, simulations, and clinical experiences. This reform effort was reinforced by a series of task force studies and reports from various committees of the American Bar Association, culminating in the 1992 MacCrate Report. The MacCrate Task Force identified ten lawyering skills and four professional values essential to lawyers. The ninth fundamental skill was entitled Organization and Management of Legal Work. This paper measures the efforts of law schools to promote this skill. A survey of law school catalogs for 2001 shows only about 57 schools listing a course in Law Practice Management, still less than one third of the accredited law schools. Enrollment is available for no more than one and one half per cent of the students able to take the courses. Similarly, the literature of law practice management does not seem to have grown as a result of the MacCrate Report. The increase in articles whose subject is law practice management trails the general increase in legal articles published in 1990-1991 and 2000-2001. The most promising developments in law schools relate to the increased reliance on computers and other technology in education, which can translate into the law firm setting to increase productivity, increase customer loyalty, and support the effectiveness of professionals in their practices. The initiator of this response is not the MacCrate Report itself, but the market for legal and professional services.

Picking Up the Law

This essay is a contribution to a Miami Law Review symposium on the work of Professor Pierre Schlag. While Schlag's writing poses a profound intellectual challenge to the legal academic enterprise, it also leaves many pressing questions in its wake. One of these questions concerns where those who hold such views can locate themselves within the legal academy. Might one use Schlag's insights to develop a useful alternative pedagogy in the law school context and what might such a pedagogy look like? In this article, I explore the intellectual possibilities left open for a more authentic law school pedagogy than the one that Schlag caricatures and critiques. In particular, I focus on the law school clinic. Some of my past writing identifies the law school clinic as an alternative pedagogic site, but can it be counterpedagogic in Schlag's terms? Does studying law by doing law on behalf of indigent clients offer hope that law students will observe and analyze the disparity between law's ideal and its bureaucratic manifestations? Can we imagine a pedagogy that develops and cultivates such insights with clinic students? In other words, is a Pierre Schlag Postmodern Legal Clinic a thought experiment that produces anything intelligible?

Clinical Negligence, 3rd edn

1Cardiff Law School Clinical Negligence, 3rd edn M.PowersN.Harris Butterworths 2000xlviii + 1728Hardback£275

Poverty Law and Community Activism: Notes from a Law School Clinic

Poverty Law and Community Activism: Notes from a Law School Clinic

Frasier meets CLEA: Therapeutic jurisprudence and law school clinics.

Frasier meets CLEA: Therapeutic jurisprudence and law school clinics.