Kruse, K R --- "Getting real about legal realism, new legal realism, and clinical legal education" [2012] LegEdDig 19; (2012) 20(2) Legal Education Digest 9

• Getting real about legal realism, new legal realism, and clinical legal education

---

Getting real about legal realism, new legal realism, and clinical legal education

K R Kruse

New York Law School Review, Vol 56, 2012, pp 659-686

One of the earliest calls for clinical legal education came from the American Legal Realist movement of the 1920s and 1930s, in Jerome Frank’s plea for the creation of ‘clinical lawyer-schools’.

Running through legal realist jurisprudence was a distinction between the ‘law in books’ and the ‘law in action’, with the idea that law is not found primarily in statutes and judicial opinions, but rather in the behaviour of judges and other legal officials. From the legal realist perspective, the value of clinical legal education lay in its potential to force law students out of the artificial world of the law in books and expose them to the complex and variegated world of the law in action.

When the clinical legal education movement gained momentum in the 1960s, it developed around other goals: a social justice mission and pedagogy of generalised lawyering skills. Although clinical scholars have grappled with the complexities of implementing these dual goals, there has been relatively little analysis of how clinics might be consciously designed around exposing students to gaps between the law in books and the law in action. Meanwhile, empirical scholarship in the legal realist tradition has explored both behavioural trends in judicial decision-making and gaps between the law in books and the law in action.

In 1933, Jerome Frank called for a truly radical reform to legal education. He proposed not merely to add practical training to the law school curriculum, but to change the central focus of legal education from appellate case study to immersion in the day-to-day work of practising lawyers. Unlike proposals for curricular reform today, which value the Langdellian method of appellate case instruction as one among many necessary components in the preparation of students for the practice of law, the clinical lawyer-school Frank proposed amounted to ‘a complete abandonment of Langdell’s central aim and a reversion to the apprentice system but on a more sophisticated level’.

What legal education needed, argued Frank, was the development of full-fledged ‘lawyer-schools’ in which ‘theory and practice would ... constantly interlace’ and ‘students would learn to observe the true relation between the contents of upper-court opinions and the work of practicing lawyers and courts’. At the centre of law school activity would be a legal clinic in which law students would represent clients on a range of issues included in the work of a legal aid society, and also ‘take on important jobs, including trials, for government agencies, legislative committees, or other quasi-public bodies’. The study of appellate doctrine would be consigned to a peripheral role, as a way for students to learn the linguistic formalities needed by lawyers to present legal arguments.

Although such lessons in real-world trial-level practice do a good job of challenging the prevailing orthodoxy of Langdell’s case method, they failed to spell out an affirmative pedagogy designed to prepare students for the practice of law. By the more sophisticated pedagogical standards of clinical teaching today, Frank’s vision of clinical education lacked a structure for helping students generalise from and transfer the knowledge gained from exposure to practice in his clinical lawyer-school to their experience as lawyers in the future.

Among Legal Realists, Frank was known for insisting that judges decided cases not on the basis of reasoned and principled analysis of prior doctrine, but primarily on ‘hunches’ arising from an intuitive sense of right and wrong under the circumstances and used legal reasoning to rationalise these intuitive conclusions. He speculated that the factors that produce a judge’s ‘hunch’ – the true basis for the judge’s decision are ‘multitudinous and complicated’ and that at least some of these factors cannot be predicted because they are ‘uniquely individual’ to each judge.

Frank’s legal realist writings were also distinctive in focusing sceptical attention, not only on the rules that judges announce in deciding cases but on the fact-finding process in trial court proceedings, a view known as ‘fact-scepticism’. As Frank pointed out, trial-level fact-finding is a form of lawmaking; whenever a court applies the law to the facts incorrectly, it essentially nullifies the applicable statute. Further, trial courts have the power to evade appellate review by cloaking their decisions in findings of fact rather than rulings of law.

The arguments Frank mounted in support of clinical lawyer-schools grew directly from his emphasis on the central role of fact-finding and the idiosyncrasy of judging in his legal realist writings. Yet, the central concern for lawyers in advising and advocating for their clients is not how principles and rules fit together in the abstract, but predictions about how courts are likely to decide specific cases involving their clients. The study of judicial opinions provides little insight into such predictions, Frank argued, ‘because the reasons recited by judges in their printed opinions were largely post hoc rationalisations for the results the courts wanted to reach, rather than the real reasons that motivated the decisions’.

Despite his centrality as a legal realist figure, Frank’s ideas are commonly described as ‘extreme’ or ‘fringe’ realism. Frank’s views about the inscrutability of judicial decision-making were antithetical to the Legal Realists’ quest to discover the patterns of behavioural regularity at the heart of the prudential Legal Realists’ predictive and reformist missions.

Moreover, at the centre of Frank’s jurisprudence stood a glaring contradiction. As Frank insistently pointed out, from the perspective of lawyers representing clients, what is important is the prediction of what the judge will do in their case, not social scientific generalities of what judges often do in cases like theirs. However, as Frank acknowledged – particularly in his later writings – honest appraisal of the ‘unruly’ process of fact-finding revealed such profound uncertainties that the most one could hope to discover were regularities at the level of rules; fact-scepticism left little ground for predicting the outcome of results in particular cases. This contradiction at the heart of Frank’s jurisprudence also infected the pedagogical program of his proposed clinical lawyer-school, which was heavy on exposing students to trial-level practice but thin on tools for abstracting or generalising from their experiences.

As the history of American Legal Realism demonstrates, it has been remarkably difficult for behavioural legal scholars to break free of the dominance of appellate case law, even when they have recognised the importance of studying the behaviour of lower-level officials. Legal Realists historically recognised that there is something profoundly unrealistic about the world of law as portrayed in appellate court decisions.

Yet, these insights did not always translate into actual study of law beyond appellate cases. Llewellyn’s own behavioural studies of ‘the law itself’ eventually came to focus on the process of appellate judging, supported by analysis of the patterns that emerge from the study of outcomes of judicial decisions. Llewellyn’s brand of realism eventually developed into a view that although formal legal doctrine presents many ‘leeways’ for judicial interpretation, the appellate judicial process also carries institutional constraints that make the results of adjudication reasonably ‘reckonable’, especially when considered in light of the equities of the recurring fact-situations that appellate cases present.

Even when the behavioural study of law and legal institutions breaks free from the vortex of appellate cases, it is not always apparent how the insights of social science can be translated into knowledge with practical utility to lawyers and judges. While the ‘external point of view’ adopted in the behavioural study of judging may help explain the underlying dynamics of judicial decision-making, it fails to capture the way that judges and lawyers look at law in making legal arguments and decisions.

The disconnection between the external and scientific perspective needed for behavioural study of law in action and the cultivation of internal perspectives necessary to the practice of law is illustrated by the troubled fit of the ‘scientific wing’ of the Legal Realist movement within the legal academy. Although many in this ‘scientific wing’ of legal realist thought broke successfully from the dominance of appellate cases to examine the workings of legal systems on the ground, they explicitly eschewed goals associated with either law reform or the practical training of lawyers. According to those in the scientific wing of the Legal Realist movement, serious attention to the behavioural study of law required institutional separation from professional training.

The barriers to integrating the behavioural study of law into legal scholarship also affected the reforms Legal Realists pursued or proposed to legal education, which either stayed comfortably within the confines of classroom teaching of appellate cases or fell prey to the criticism that they lacked relevance in preparing law students for the practice of law. The 1920s and 1930s saw a ‘realist revolution in casebooks’, as Legal Realists published casebooks that reorganised law school courses around factual trends or problem situations rather than according to doctrinal categories based on legal principles. The purpose of these reforms was to ‘bring about a closer integration between law and the social sciences’ by classifying law according to the social purposes that law served.

A similar fluorescence occurred at Yale Law School in the late-1940s, when faculty members published a number of casebooks that incorporated social science and social policy. And, in the late-1940s, the Yale curriculum ‘witnessed an explosion of electives’ that combined the study of social science, public policy, and law.

Although the reforms did not succeed in large-scale reformation of the law school curriculum, they made inroads that affect legal education today. Courses organised around functional rather than doctrinal categories – landlord-tenant law; family law; debtor-creditor law – have become staples in the law school curriculum. And, most law school textbooks now include both cases and other materials that add explicit discussion of public policy concerns relating to law.

Going in a different direction, Karl Llewellyn urged a reorganisation of the law school curriculum around the acquisition of craft skills, both in his own writings’ and in the 1944 report of the Association of American Law Schools’ (AALS) Committee on Curriculum that he chaired the ‘Llewellyn Report’. Llewellyn argued that the appellate case method was an inefficient way of learning substantive law and should be viewed primarily as a method for honing the analytical skills necessary for lawyering. After the first year of law school, Llewellyn argued, most students had mastered the skill of case analysis, and classroom instruction should turn to teaching students how to apply the law to other lawyering tasks such as drafting and client counselling. The Llewellyn Report similarly proposed that the law school curriculum beyond the first year be organised around teaching other basic skills of the lawyer’s craft, including statutory construction, appellate advocacy, drafting and client counselling.

Though conceptually innovative, Llewellyn’s proposals stayed comfortably within the basic structure of classroom study. Llewellyn explicitly rejected Frank’s proposals for clinical education, characterising them as insufficiently theoretical.

Frank’s views on legal education were received with similar scepticism by his colleagues at Yale. Some dismissed the idea of a clinical lawyer-school as unaffordable, and others perceived Frank’s pleas for practical training as ‘playing into the hands of the conservative and anti-intellectual backlash by Yale alumni against the progressive political activities of faculty members’. In the end, Frank wearily acknowledged the challenges of swimming against the tide of legal academic culture, recognising that ‘so long as teachers who know little or nothing except what they learned from books under the case-system control a law school, the actualities of the lawyer’s life are there likely to be considered peripheral and as of secondary importance’.

Although Frank’s comment could easily be repeated today, clinical legal education has taken tremendous strides since Frank penned those words in 1947. A series of amendments to the American Bar Association’s standards for the accreditation of law schools helped to solidify the status of clinicians within the legal academy. An increasingly professionalised corps of clinicians has developed a more sophisticated pedagogy of clinical instruction that integrates theory and practice and helps students generalise from their clinic casework to larger issues of law, lawyering, and social justice.

With an increasing number of clinical faculty members in tenure-track positions under the same or substantially similar expectations for scholarship as their nonclinical colleagues, clinician-scholars have increasingly turned their attention to other forms of scholarship.

Legal Realism has a paradoxical legacy in American legal thought. On the one hand, it is credited as one of the most influential movements in American legal history, whose insights about judicial decision-making have so pervaded contemporary legal thought that they seem too obvious to mention. On the other hand, Legal Realism is seen as a failed movement that ‘simply ran itself into the sand’. Moreover, in the post-World War II atmosphere of rising totalitarianism, the legal realist divorce of law from morality was criticised as promoting authoritarian and anti-democratic values.

Despite its paradoxical legacy – or perhaps because of it – Legal Realism has continued to captivate legal scholars. In the 1970s and 1980s, the Critical Legal Studies movement (CLS) claimed the legacy of Legal Realism, drawing connections between the legal realist ‘debunking’ of legal doctrinal rules and CLS claims that law is radically indeterminate. More recently, legal theorist Brian Leiter and others are re-situating legal realist thought within a pragmatist and natural law jurisprudential tradition. And, within the past decade, a host of diverse legal scholars interested in empirical study of the law and legal institutions have been invoking the title of ‘New Legal Realism’ to describe their work, attesting to the vitality of the urge to move beyond formalistic accounts of law and legal institutions and to test assumptions deeply embedded in legal scholarship with empirical evidence of human behaviour in legal systems.

Today’s studies use large databases of appellate opinions to examine the influence of a variety of measurable and testable aspects of judicial personality on the outcomes of their opinions; they also study institutional influences, such as whether sitting on appellate panels with judges of similar or different gender, race, or political affiliation has a tendency to amplify or dampen the effects of judicial personality. Yet the focus of these studies on appellate judging limits the ability to generalise from these studies about the interplay of law and other personal or institutional factors in controversial appellate cases to the vast majority of run-of-the-mill cases that create the law in action.

Other heirs to the legal realist tradition – especially those who come to it through the portal of socio-legal study in the Law and Society movement have broken out of the appellate case mould quite decisively to study the law in action. Some of these studies focus on identifying gaps between law in books and law in action, documenting the differences between the ideals expressed in law and the actual practices of judges and other legal officials in implementing the law. Others go beyond conventional ‘gap studies’ to investigate a broader field of ‘norms, sanction systems and institutions’ that sociologist Eugen Ehrlich called ‘living law’. This second kind of inquiry looks not only at law in lower courts but at societal practices that interact with law and influence the behaviour of people who form agreements and resolve disputes in the ‘shadow of the law’.

The empirical study of law within the context of social institutions often reveals the marginal or indirect influence that law has on social behaviour. And, the drive for accuracy in social scientific research uncovers complexity that fails to provide the quick and easy functional conclusions demanded in the typical mode of legal scholarship. The ‘old’ Legal Realists generally took the view that the law in the books was an outmoded impediment to social progress, suggesting that the study of the law in action would reveal the workings of informal social norms more responsive to the fluctuations of a rapidly changing society. The gap studies generated in the later Law and Society movement generally take a more pessimistic view that the intended purposes of the law in the books were distorted in implementation by controlling elites.

The premises of the Law and Society movement were questioned in turn by critical theorists, who viewed law as a form of ideology designed to legitimate existing power and who questioned the claims to neutrality and objectivity inherent in the behavioural study of law.

Against this backdrop, a brand of law in action New Legal Realism has emerged, claiming the title for research that seeks to integrate the critical theoretical insight that social science research is always situated without sinking into ‘scepticism about the possibility of neutral or objective scholarship’. The New Legal Realism remains committed to the basic premise that a full study of the law must occur from the ‘bottom up’, defined as a focus on ‘the impact of law on ordinary people’s lives’ as well as a sensitivity to the fact that ‘less powerful persons in society are often more invisible and silenced’. To capture the full reality of the impact of law in society, New Legal Realists call on scholars to supplement quantitative methods with qualitative research, using established methods of ethnographic or ‘participant observer’ research.

The New Legal Realists’ proposed ‘path between idealism and scepticism’ is paved by pragmatist methods of engaged, embedded or experimental research with its genesis in real-world problem-solving. It is through ‘leaving one’s office and venturing into the field’ to engage in the world, rather than merely studying it, that new legal realist scholars hope to draw on social science research and methods to make new and transformative discoveries about law and legal institutions.

The tenets of the New Legal Realism – the commitment to studying law from the ‘bottom up’ perspective of those who lack power in society, the critical questioning of neutral and objective standpoints, and the call for engagement in the world as a platform for legal research – fit closely with the goals and methods of clinical legal education. As a result, there is much that the new legal realist scholars and clinicians can offer to one another with the potential to enhance and deepen both the new legal realist conception of law in action scholarship and a pedagogically rich conception of clinical legal education.

First, clinical pedagogy is ideally suited to overcome the seemingly intractable problem of how to integrate social science insights into law teaching. In clinics, students are immersed in the heart of the law in action, representing clients in lower-level courts, administrative agencies and other venues for dispute resolution. Students daily encounter the gaps between what the law says, what it aspires to be, and what legal officials actually do, and are therefore poised to engage questions about the role of law in society. Clinical teaching also provides ready-made tools for reflective analysis on students’ observations.

Deeper engagement in the behavioural study of the law and legal systems from the ‘bottom up’ also holds out the promise of sharpening and enhancing clinical teaching. One of the criticisms of clinical legal education is that the individual client representation model focuses too narrowly on the interpersonal skills and values of the lawyer-client relationship to the exclusion of broader systemic social justice issues. To the extent that clinical professors familiarise themselves with studies produced by new legal realist scholars, it can help them focus questions, introduce readings, and structure analysis that will assist students in making the connections between individual advocacy and systemic or social justice reform, even if the clinic itself remains focused on individual client representation or combines individual representation with broader systemic advocacy.

Clinicians also have a valuable perspective to bring to new legal realist scholarship. Because clinicians teach students ‘in role’ as lawyers, they have a natural standpoint from which to bridge the ‘relevance gap’ between the insights of social science about law and the practice of law. Law school clinics offer probes into the world of lower level court systems, which can be used to generate hypotheses about the impact of law in society that can be studied through a combination of quantitative and qualitative methods.

However, there are also challenges endemic to the choice of clinical law professors to engage with the New Legal Realist law-in-action project. Engagement with social science requires methodological rigour and expertise that few clinicians possess from their prior training and experience. Learning social science methodologies, or collaborating with those who know how to use them, can help clinicians sharpen and deepen their scholarly insights beyond case-based anecdotes. While there are natural synergies between studying the law in action and teaching law in clinical settings, the economies of doing both can be daunting.

Both clinical legal educators and new legal realist scholars seek – in their separate ways – to blur the boundaries that separate each from the dominant focus on appellate doctrine in legal education. Yet to succeed where Jerome Frank failed, they also need to cross the institutional and psychological boundaries that separate them from one another. New legal realist scholars need to value their lesser-status clinical colleagues as potential collaborative partners rather than ‘professional skills trainers’ outside the academic sphere of their law schools, and to understand the potential of clinics as sites for making visible the issues and questions that marginalised persons encounter when facing legal systems. Clinicians need to value the systemic and behavioural study of law and legal institutions by faculty members with advanced degrees in social science who may never have practised law and envision ways that such knowledge can be incorporated into the social justice education of their students. Through such collaboration, mutual exploration and experimentation, the ‘relevance gap’ between the behavioural study of law and the practical education of lawyers has the potential to be bridged.