I. An Experiment and An Epiphany
Once upon a time at Boston College Law School, I experimented with a new clinical model1 by involving some of the students in my Death Penalty class in appellate representation of a death row inmate. In particular, I offered a limited number of students in the class a clinical alternative for satisfying the course requirements. Instead of writing a research paper, they could write a petition for certiorari to the United States Supreme Court on behalf of a death row inmate seeking relief from an adverse decision by a state supreme court after a direct appeal.
Had I framed it differently, I could have offered this same opportunity as a freestanding death penalty clinic. For a variety of reasons, largely resource-related, I did not choose that option for this experiment, even though I came to see such a model as a powerful and promising potential clinic.2 At the same time, I had a passing realization that offering students a clinical experience that involved researching and writing a legal document seeking relief for a client-in-need could be a powerful and promising model for an advanced legal writing course as well.3
At times, the clinical segment of my Death Penalty class was indistinguishable from an advanced legal writing course. For example, we read and talked about the uniqueness of certiorari petitions as a form of pleading. We found and consulted the Supreme Court rules for filing them. We read and discussed the trial record together. We brainstormed legal issues for inclusion in the petition. We researched the issues and talked through our legal arguments. Once conceptualized, we did further research on the arguments, drafted them, re-drafted, and re-drafted again. We crafted a statement of facts that aided our arguments. This semester-long process concluded when we polished the petition into the form required by the rules and filed it on its due date.
Other tasks accomplished that semester were more common to clinical courses and to my classroom course in the death penalty. We discussed our relationship with the client and what it should entail. We met and consulted the client, corresponded with him, and explored both experientially and analytically the challenges of lawyering in the shadow of death. We examined the overall death penalty system and how it affects the lives of those involved in it. We considered the reliability of decisions about death, and we plumbed what it really means for a state to take life as punishment. My own development as a teacher is far greater with respect to the latter group of activities than to the former.
For the part of the course that involved the drafting and re-drafting process, I was cognizant that I was riding on the coattails of my skilled legal writing colleagues who had spent a previous year with each of my students teaching legal analysis. I was also cognizant that I had not given nearly as much thought as they had to the pedagogy of the drafting and re-drafting process—how I might offer instruction and give feedback in a way that most effectively and efficiently advanced the process of writing and revision.4 I know that my legal writing colleagues have developed considerable expertise in these very things, and late in the semester, I had an epiphany that fully supports the thesis advanced by Profs. Michael Millemann and Steven Schwinn that co-teaching by a legal writing teacher and a clinical teacher would enrich both professors' and students' experiences.5 By semester's end, I had vividly grasped how felicitous it would have been to co-teach the experimental course with one of my legal writing colleagues, if only one of them could have been sufficiently freed from other full-time responsibilities to make such tandem teaching possible.
Admittedly, in some contexts, this can be a monumental "if." Indeed, the "if" clause is the aspect of this vision that lends it a fairy tale-like quality. Both clinical programs and legal writing programs tend to have too few resources relative to the demands of their time-intensive pedagogies. No matter the benefits of collaboration, collaborating effectively is itself time-intensive and, correspondingly, it is a resource-laden endeavor. Therefore, the demands on the schedules of clinical and legal writing faculty may render them less able than other faculty to undertake collaborative experiments such as these.
Moreover, clinical and legal writing professors often occupy academic positions outside the tenure-track, and therefore on lower rungs of the academic hierarchy. Lower status, and the lower salary that typically accompanies it, can have a psychological impact that may make clinical and legal writing faculty reluctant to overload themselves for the benefit of an institution that they understand to underappreciate and undercompensate them.6 For a collaboration of the sort I envision here, these are weighty structural matters that may make virtually impossible what is otherwise eminently logical and desirable.
Yet even if an act of magic or wisdom removed these structural barriers, I have to acknowledge that helping students become better legal writers was an incidental motivation for me in that experimental semester. I was more intent on helping them use their legal writing skills to gain insight into appellate lawyering, the peculiar institution of the death penalty, and their own professional choices and identities, and as importantly, to provide high-quality legal assistance to somebody who desperately needed it, had not yet received it, and was in a dire situation as a result. But the fact that my goals were not in any way inconsistent with the goals of improving legal writing suggests that the two sets of goals could be mutually reinforcing, that they could be put in service of each other, with the consequence being a course enriched by that synergy in the ways that Profs. Millemann and Schwinn have persuasively described.7
∗ © Phyllis Goldfarb 2007. Jacob Burns Foundation Professor of Clinical Law and Associate Dean for Clinical Affairs, The George Washington University Law School. Many thanks to Phil Meyer, Michael Millemann, Evangeline Sarda, and Amy Reichbach for discussing these ideas with me. I am grateful to Boston College Law School for giving me an academic home for many years within which I could explore integration of the theoretical and the practical. I am also grateful to The George Washington University Law School for offering me an opportunity to use my experience to support and develop outstanding clinical programs and public interest initiatives.
1 While this was a new clinical model for me, it is not a new model in legal education generally. For example, in the 1990s Seattle University School of Law embarked upon a curricular reform that included "clinical labs," creating a number of live-client clinical components that can be taken for additional credits in otherwise non-clinical courses. See John B. Mitchell, Betsy R. Hollingsworth, Patricia Clark & Raven Lidman, And Then Suddenly Seattle University Was on Its Way to a Parallel, Integrative Curriculum, 2 Clin. L. Rev. 1 (1995). Such options are offered through other law schools as "mini-clinics." See Maureen E. Laflin, Our Clinic Is Growing In More Ways Than One, Clinic Chronicle, U. of Idaho College of Law (Sept. 2006).
2 In the future, I do plan to offer this opportunity as a freestanding clinic at The George Washington University Law School.
3 Others have had experiences that led to this realization as well. See Sarah Schrup, The Clinical Divide: Overcoming Barriers to Collaboration Between Legal Writing and Clinical Programs (NYLS Clinical Research Institute Paper No. 06/07-1) (available at http://ssrn.com/ abstract=943452) (exploring prospects for improving the teaching of legal writing through the use of criminal appellate casework); Angela J. Campbell, Teaching Advanced Legal Writing in A Law School Clinic, 24 Seton Hall L. Rev. 653 (1993) (recommending clinics as an effective site for teaching legal writing); Maureen E. Laflin, Toward the Making of Good Lawyers: How An Appellate Clinic Satisfies the Professional Objectives of the MacCrate Report, 33 Gonz. L. Rev. 1, 33-38 (1998) (highlighting how clinics can improve legal writing); see also Anthony G. Amsterdam, Clinical Legal Education—A 21st Century Perspective, 34 J. Leg. Educ. 612, 617 (1984) (describing the law school of the future as one in which first-year and upper-level legal writing instruction would be done in clinical programs).
4 See e.g. Daniel L. Barnett, Triage in the Trenches of the Legal Writing Course: The Theory and Methodology of Analytical Critique, 38 U. Tol. L. Rev. 651 (2007); Jane Kent Gionfriddo, The "Reasonable Zone of Right Answers": Analytic Feedback on Student Writing, 40 Gonz. L. Rev. 427 (2005); Judith B. Tracy, "I See and I Remember; I Do and Understand": Teaching Fundamental Structure in Legal Writing Through the Use of Samples, 21 Touro L. Rev. 297 (2005).
5 See generally Michael A. Millemann & Steven D. Schwinn, Teaching Legal Research and Writing with Actual Legal Work: Extending Clinical Education into the First Year, 12 Clin. L. Rev. 441 (2006). See also Michael Millemann’s essay in this issue, Using Actual Legal Work to Teach Legal Research and Writing, 4 J. ALWD 9 (2007).
6 Women are found disproportionately at the lower rungs of the academic ladder. See Marina Angel, Women in Legal Education: What It’s Like To Be Part of a Perpetual First Wave or the Case of the Disappearing Women, 61 Temp. L. Rev. 799, 804 (1988) ("Law schools have created a new caste system, and the lowest caste is comprised of women [clinicians and legal writing instructors.]"); see also Marina Angel, The Glass Ceiling for Women in Legal Education: Contract Positions and the Death of Tenure, 50 J. Leg. Educ. 1 (2000). Surveys of both clinical and legal writing professors have documented gender bias in salaries, even within their own ranks. See Robert F. Seibel, Do Deans Discriminate?: An Examination of Lower Salaries Paid to Women Clinical Teachers, 6 UCLA Women’s L.J. 541, 547-51 (1996) (comparisons both within the tenure track and within the contract track show female clinicians are paid 10-15% less than male clinicians); Jo Anne Durako, Second-Class Citizens in the Pink Ghetto: Gender Bias in Legal Writing, 50 J. Leg. Educ. 562, 563 (2000) (female legal writing directors are paid 80% of the salaries of male legal writing directors, and are less often granted tenure, voting rights, and other benefits).
7 Millemann & Schwinn, supra n. 5.