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Clinical Legal Education: Jerome Frank's Criticism On Langdell's Views

A Clinical legal Education can be defined in the following ways:

"An ideal learning environment, whereby students are required to identify, research and apply knowledge in a particular setting, which almost resembles the actual world where it is practised.[1]

The essential purpose served through clinical legal education is that it creates a bridge between theoretical understanding and practical application of law for the students. This method originated as a part of formal legal education in India. One classic example of clinical legal education is the Moot Court competitions that are held in law universities and colleges.

The competitions bring the students one step closer towards a real courtroom environment and help them to learn the basics of courtroom etiquettes even before entering the courtroom as a professional lawyer.

It was in the year 1870 when Dean Langdell of Harvard Law School introduced a new aspect to legal education. Prior to that, students were studying only substantive law as a liberal art but none of the law schools or universities practiced apprenticeship.

Instead of studying systematic treatises of the law, or studying law as an abstract social science, law students were to study selected appellate opinions and distil from them the evolution of legal principles.[2] Until the 20th century, apprenticeship was considered to be either an alternative or an addition to the basic classroom learning.

However, certain critics remain of the opinion that it is not essential to include practical applicability of law and legal principles during the initial years of legal education. Jerome Frank, as an important critic of this ideology, states that a period of six months is enough to learn the techniques of case method.

The critics of the case method usually point to its almost exclusive preoccupation with appellate opinions, which are merely the end products of one branch of the legal process.[3]

In the meantime, the case method fails to consider other factors which make up or influence the law or are affected by the law, including:

  • legislative and administrative materials;
  • the trial-level proceedings;
  • legal institutions (even the appellate court is not studied as an institution);
  • the legal profession;
  • social and psychological forces (which may be most profitably studied by the methods of other disciplines).[4]

Jerome Frank's views on importance of clinical legal education is substantially a criticism of Landgell's concept. Hence, it is essential to understand the Langdellian method of legal education in order to get an idea on the method of clinical legal education suggested by Jerome Frank.

According to Langdell, practicing law solely dealt with the writing of briefs and examination of printed authorities. There were several university law schools which were designed on the basis of the Langdellian pattern of legal education and these universities preferred those as law teachers who were concerned primarily with law books and not much with the practice of law.

Criticizing the Langdellian pattern, Jerome Frank came forth with certain concepts of clinical legal education which can be explained in the following points:

  1. He suggested that a considerable proportion of law teachers in any law school should be lawyers with not less than five to ten years of varied experience in the actual practice of law. With reference to the same, he also stated that the practical experience of these lawyers should have expanded to cover areas way beyond the scope of short period of paper work in a law office. The concerned lawyer must have learned the informal and formal practicalities of the courts and the art of dealing with the judiciary. The exclusively book lawyer can perhaps best teach only "library law". However, such "library-law" teachers should not be put at a dominant position in the schools.
  2. The student would be made to see, among other things., the human side of the administration of justice, which is inclusive of the methods and the factors on the basis of which cases are decided by the jury. They shall also know about the advantages as well as disadvantages of jury trials which are primarily based on the manner in which facts are presented before the Court. The actual scheme of events and the manner of representing them before the Court may be distinct from each other.
  3. It is essential for the student to acquire the knowledge that "legal rights and duties" are intimately tangled with litigation. A lawyer may be successful in establishing a legal right based on the remedy he is seeking from the court. A major aspect of this depends upon the judge and the way in which the judges react to several testimonies given by witnesses. He should learn that "legal rights" and "duties" mean merely what may someday happen at the end of specific lawsuits.
  4. It is necessary for a law student to learn and grasp the fact that judges are mere mortal human beings and that establishing of legal rights majorly depends upon the unprecedented reactions of those mortal human beings to a variety of factors which include not only the rules, but also the possibly flawed testimony of other human beings called witnesses.
  5. The students should also learn the methods used in negotiating contracts and settlements of controversies.
  6. As a temporary device and until such time as clinical law schools are established, students, early in their student days, under the direct and sustained supervision of their law professors, should be working at intervals as apprentices in carefully chosen law offices. The practicing lawyers who assist in such apprentice-training should be made associate members of the law school faculty-perhaps with some compensation. Between the regular members of the faculty and such associates a plan of instruction should be carefully worked out.
  2. George S. Grossman, 'Clinical Legal Education: History and Diagnosis', Journal of Legal Education (1974)
  3. Ibid.
  4. Ibid.
Written By: Dr Farrukh Khan, Advocate
Managing Partner of Diwan Advocates

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