Surveying Clinical Education

Speaker’s Corner From The Practice January/February 2020
A conversation with Robert Kuehn

Robert Kuehn, associate dean for clinical education and a professor of law at the Washington University in St. Louis School of Law, recently sat down with David B. Wilkins, faculty director of the Harvard Law School Center on the Legal Profession, for a conversation on the past, present, and future of clinical legal education.

David B. Wilkins: You’ve been immersed in the clinical movement for the last three decades. Could we start by talking a bit about how you got involved in clinical legal education and how you got to where you are now?

Robert Kuehn: When I got out of law school, I clerked for a couple of federal judges, and then I went to work in the Department of Justice as a trial attorney in the environmental enforcement section. I was a bit overwhelmed by a massive case I was facing and saw an ad for a new environmental law clinic at Tulane University in New Orleans. It sounded interesting to me. And sort of on a lark, I took the job and started from scratch in this environmental law clinic that grew very large—20 to 25 or more students at a time. And we did a lot of very profound litigation and got a lot of people upset, including the governor. I was hooked.

The research on law clinics shows a lot of evolution.

Robert Kuehn, associate dean for clinical education and a professor of law at the Washington University in St. Louis School of Law

Wilkins: You were running the clinic when they basically shut you down, right?

Kuehn: That’s me. I ran that for about 10 years and then moved around a bit, including running the law clinic and externship program at the University of Alabama, and now I’ve been here at Washington University in St. Louis as the associate dean for clinical education for the last decade or so, where I oversee our externship courses and our law clinics.

Like lots of people who practiced law and really loved it, to me, being in a clinic at a law school is the perfect blend. I still get to have my hand in important cases and interact with needy clients, and I get to teach all these great students. For me personally, it’s a really rewarding career.

Wilkins: Well, Bob, your career really does span the growth and development of the clinical legal education movement in law schools in this country. And you’ve gone even further than that in being a key part of this organization called the Center for the Study of Applied Legal Education (CSALE). I wonder if, first, you can just tell us a little bit about the organization. And then second, I know that CSALE has a recent study on the state of clinical legal education, and I’d be interested if you could tell us a few of the highlights.

Kuehn: Around 2005, I was appointed with some other clinical teachers to an Association of American Law Schools (AALS) task force to examine the status of clinical legal education and clinical teachers. As part of this task force, we thought we would look at who’s doing what and how in the clinical space. There was very little data out there. A good friend of mine, David Santacroce at the University of Michigan, had this idea that we should start doing a survey to really find out what’s going on across the country with law clinic and externship courses and of the people who teach them. We got together a little bit of money, and we started a nonprofit—the Center for the Study of Applied Legal Education, or CSALE. We put out our first set of surveys in 2006 and 2007.

There are really two phases to our work. The first phase is an effort to get one person, typically a dean of clinical legal studies or the like, to give us some very broad information about that school’s law clinic and externship courses and some of the people who teach them. Based on this, we generate contact information and send a second-phase survey that goes to every individual law clinic and externship teacher in the country asking them to give us very specific information about their law clinic and externship courses and about themselves and their position within the legal academy. We’ve been doing that every three years since 2006. We’re right now in the middle of our fifth triannual survey. Around 95 percent of all law schools completed phase one. Soon we will generate around 2,000 email invitations to individual law clinic and externship teachers to provide information as part of phase two. And this summer, as we’ve done for all the prior surveys, we’ll put out a big report that is the most comprehensive, longitudinal look at any aspect of legal education. It’s instructive for schools that are thinking about the direction they want to go with their programs and offerings for students. It’s very helpful to individual law clinic and externship teachers to get a sense of what others are doing. And it’s a wonderful scholarly resource.

For a long time, clinics tended not to pay attention to the transactional and corporate side of law.

Apart from our work on clinical education, only the legal writing educators have a similar survey, which we modeled ours on. And so, as I said, we’re just at the start of our fifth CSALE survey, and it’s been a lot of work. But it’s gratifying to see how many people cite our data in their articles so that they can move beyond opinions and talk about the data. And it’s very rewarding to have people tell you how they used the survey data to improve their program, either their individual course or the direction of their school.

Wilkins: I know you’re just in the process of analyzing all your data, but there are at least two big trends from your previous surveys I want to highlight. One has been a proliferation in the subject matters or kinds of clinics—and certainly we’ve seen that here at Harvard Law School—and the second is on the demand for clinics where your recent data has shown a slight decrease. How do you see these two trends playing out in your most recent data? Where do you see these big trends going over the next few years?

Kuehn: As you point out, the research on law clinics shows a lot of evolution. When they first started, they were largely legal aid and public defender clinics. They were very heavily focused on litigation, and the school likely had just one or two and no more than a smattering of students. Over the last couple of decades, there was an enormous expansion—the 2000s was a time of enormous growth and diversification. We have very specialized clinics now—veterans’ clinics, tax clinics, IT clinics, immigration clinics, and so forth. Part of this diversification matches our students’ career choices and, at some level, overlooked client needs (though, of course, that probably comes with a cost of likely doing less poverty law representation). I’m encouraged that we woke up to the idea that not every student will be a litigator. For a long time, clinics tended not to pay attention to the transactional and corporate side of law. I’ve been really gratified that the small-business, economic-community development; the taxpayer; and some of the mediation clinics have moved clinical legal education toward another group of students. Sometimes it creates a challenge to keep focused on a social justice mission, as has been traditional in clinical legal education, but these new clinics are also not focused just on training students but on improving communities.

Second, on the demand point, there has undoubtedly been significant increases in enrollment in clinics over time. For instance, a lot of schools have greatly expanded their hiring of clinical faculty. That being said, “demand” did take a dip on our last survey, but I think the dip is reflective of the fact that enrollment in law schools more generally was down, so there was some belt tightening. I have no reason to think that the demand for clinical training is decreasing in any way. Indeed, schools are moving toward guaranteeing or even requiring students to get some sort of clinical experience, whether it’s through a law clinic or an externship. Why did it take so long for this movement toward guaranteeing or requiring a live client experience? I mean, the idea that we might send students out in the world having never seen a client is crazy! I think one reason many schools are now seeking to market and differentiate themselves is because they know that clinical training is enormously popular with students. It’s a great tool for recruiting students. So, schools have woken up to the idea that if they have the resources, clinical training is a good thing for not just student learning but also for the school in terms of its identity and the value that potential students see when schools make that commitment.

So, the short answer is, clinical education continues to expand. It’s going to continue to differentiate.

Wilkins: Bob, one of the things that makes you unique is that you have a public health degree. And so, you know a lot more than most people about the way that clinical education works, for instance, in medical schools. And there has always been a stark difference between the law school model and the medical school model. Do you see law schools moving more toward a medical model in which clinics are not only required but also fully integrated into the way in which students become professionals?

There are tremendous complaints about legal education by lawyers after graduation that they were not sufficiently prepared for the practice of law.

Kuehn: After 100 years of doing little to nothing about applied learning, about a decade ago, the American Bar Association required that students get some sort of hands-on training—but they didn’t give it much thought, and it turned out that it meant that a student could get as little as one credit in their last two years and that would satisfy the requirement. And then, to their credit, about five years ago, they adopted what they call the “experiential training requirement” for six credits (for more, see “The Standardization of Law School Clinics”). That’s some help, but in the last two years, students take about 64 credits! So, we’re only talking about one-tenth of a student’s legal education in applied learning. As you suggest, in the medical field, “clinical” work—it’s half. Legal education is still far behind every other professional school to my knowledge in terms of hands-on training.

Now, the argument has been, “Oh, well, we’re a dialectic profession—we think and we write; we don’t use our hands.” Of course, that’s nonsense, and most practicing lawyers know that’s nonsense. There are tremendous complaints about legal education by lawyers after graduation that they were not sufficiently prepared for the practice of law. A few years ago, the California State Bar put forth a very important proposal to require every graduate who wanted to sit with the California Bar exam to have taken 15 credits of hands-on legal course work. But then they blocked it. More recently, there was a proposal in New York to adopt a new experiential training requirement. Some people that I work with pushed them to adopt a requirement that students graduate with some clinical training, and that too was blocked. There are a lot of traditionalists in the Academy, led by the deans. I hate to say it, but AALS also has been quite resistant to the idea that we’re a professional school and that we mandate a clinical experience for all students.

The hope on the horizon, sadly, is coming at a time of disastrous bar results. As you and your readers know, about five years ago, bar-passage rates really took a dramatic drop and led to a whole lot of handwringing within the legal academy: What’s going on? Are we not teaching our students what they need to know? Do they need to take more “regular” classes and fewer clinical classes? Out of the bar-passage decline has been a realization that maybe the problem is the bar exam itself. Unlike medical school, where they have an exam to make sure students learned what was taught in the two years of classes, we wait three years and then ask someone to remember what they learned in contracts. A lot of people are working very hard to reexamine the bar exam. I think the greatest hope for some sort of change in legal education and getting students to learn to do the day-to-day lawyering that they’re about to encounter is through reforming the bar exam. For example, we could have what’s been called a “baby bar” after the first year, in which students could be tested on what they learned in those 1L classes instead of waiting until they graduate three years later. That would free up the last two years, not just for more hands-on training but also for a different kind of secondary bar exam that students could sit for upon graduation.

It turns out there’s absolutely no relationship between the number of courses or credits that students take in law clinics or externships or simulation courses and bar passage.

To answer your question, I don’t hold out a lot of hope for fully integrating clinical legal education into the Academy. My hope is just that it gets closer. I think it’s always going to be a stepchild of doctrinal teaching, but I think we need to move way beyond a mere six credits to recognize, much more than we do, the need for students to spend a greater portion of their professional training not just learning to think like a lawyer but learning how to do like a lawyer.

Wilkins: Speaking of the bar exam, you have been doing a lot of work recently on the relationship between clinics and bar passage. I wonder if you could talk a bit about what you are finding.

Kuehn: One of the repercussions of the significant downturn in bar-passage rates in recent years has been speculation that this drop was driven by choices students were making or choices schools were making about taking and/or requiring fewer “bar-subject courses”—courses that cover specific subjects tested on the bar. And, on the flip side, students were increasingly taking more—and from this point of view, too many—so-called experiential courses, whether clinical, externship, or simulation-type courses. The argument became that schools needed to start restricting the number of experiential courses, because if students spent more time studying bar-subject courses, and therein less time on the applied work that goes on in clinics and externships, they would be better prepared for the bar.

I found this a very troubling opinion. Particularly, I found it troubling because the one study I knew about didn’t find any correlation between bar-subject courses and bar-pass rates. So, I decided this claim was testable and got together with a colleague at Wayne State, and he and I pulled 10 years of student records—records of every class every student took. We then pulled their results from the very first bar exam they took. We looked for possible relationships between students who took more credits in clinics or externships and bar-passage rates. In short: Did students who took more credits in these very specific bar-subject courses do better or worse?

It turns out there’s absolutely no relationship between the number of courses or credits that students take in law clinics or externships or simulation courses and bar passage. It doesn’t move the bar-passage-percent needle up; it doesn’t move the needle down. It’s just not relevant, which makes sense because, again, the exam tests knowledge, not the applied lawyering skills that are learned in experiential courses. Interestingly, it also shows that data is lacking to support the idea that the solution to someone having trouble on the bar is to enroll them in another bar-subject course and think that somehow that’s going to change the result. Indeed, we found almost no relationship between the number of bar-subject courses or credits a student took and bar passage. We got a little bit of traction with some of the bottom-performing students, but even then, we found a plateau after taking just a few courses.

We did find that if a poor-performing student avoided bar-subject courses in the last two years by taking none or one, there was evidence that they would more likely do poorly on the exam. But once students took the median number of bar-subject courses for the school, we couldn’t find any additional benefit to passing the bar if instead they had taken six, seven, eight, nine, 10, 11, 12, 13 bar-subject courses.

One of the challenging things is that clinics sometimes just show up. Someone shows up with some money, and it seems like a great idea. And you hate to deny students the right to have another law clinic option.

Interestingly, when we were just finishing our study, the California State Bar reported on a massive study of 7,500 graduates that took the bar exam over three different summers in California and found the same thing: taking clinics or externships—whether one, two, or many—had no relationship, positive or negative, to likelihood of bar passage. The California study also could find no correlation between taking bar-subject courses and passing the bar. It couldn’t even find evidence that if you took, for example, an evidence course, you did better on the evidence section of the bar! The study did suggest an interesting hypothesis, though they couldn’t prove it definitively, that the bar exam is measuring less about knowledge of a particular subject and more about the ability to think like a lawyer. To me, these studies have been helpful to realize that we do not need to be restricting the choices students make in law school, and we should be allowing them to get a healthy mix of applied courses and doctrinal courses. And surely we shouldn’t be pounding on our chests and telling students that the solution is to double down on a certain kind of course and not the other. I think many people were worried the decline in bar-passage rates might put pressure on students to avoid the clinical courses. But the data does not support this reaction. We need to figure out other ways to help students pass the bar. But surely it’s not by forcing them into a particular kind of class.

Wilkins: How do you balance the competing purposes of clinical legal education? On the one hand, it’s to teach students, as you say, how to “do lawyering.” And then, increasingly with the proliferation of clinical types, there’s often also a subject-matter goal of teaching students more than just lawyering skills. On the other hand, there is a separate goal of serving clients and, particularly, a special kind of social justice goal. And as somebody who’s thought so carefully about this, both in your own clinics and as someone who supervises clinics, how do you think about balancing these kinds of objectives, particularly as clinics become more important and more students get involved in them?

Kuehn: It’s not easy. One of the challenging things about someone like myself who runs a clinical program is that clinics sometimes just show up. Someone shows up with some money, and it seems like a great idea. And you hate to deny students the right to have another law clinic option. It’s sometimes hard to step back and think about where students are going and how we can ensure that they get the sort of hands-on training they need to get there. On the flip side, we also need to think about what the communities that surround us really need. How do we map that? And so, I’ve been a proponent of trying to create as many opportunities as possible in whatever areas are possible.

I preach to my clinical faculty what we call “transferable skills”—that we want to make sure that when a student digs into an IP issue, for example, you don’t forget about the basic skills of problem identification and generating alternatives and weighing pros and cons and the rest of the steps to good lawyering. When I’m trying to pitch clinical courses to students, I often say that even if a clinic is not exactly what you think you’re going to be doing post-law school—if you’re going to a large law firm or the like—don’t worry. You can still gain by taking, for example, the children’s rights clinic because you’re going to have a client with a problem that you need to identify and solve. You need to interact with your client, the court, and the other parties; manage your time and documents; and the rest of the tasks that go with having responsibility for a client and their legal problem.

We were so focused on litigation and so focused on poverty issues that we forgot about the students who really wanted the hands-on learning but didn’t identify with the subject matter.

I do not think we’ll ever get to the point where someone who’s hiring for a large firm will look at students who’ve done, for example, an entrepreneurship or a corporate clinic and will think that makes them prepared to do M&A work on day one. At the same time, I know that there are some areas—for instance, public defender, prosecution, and certain public-interest jobs—where employers are expecting, or even requiring, hands-on clinical training. It’s going to be interesting to see how employers, who have been clamoring for more hands-on training in law school, value this experience when they make hiring decisions.

Wilkins: I just want to close by asking you, based on all your incredible experience and work in this area, where do you see the future of clinics going?

Kuehn: There are two things that I’ve seen the most over the last decade that I think will continue. One is an increasing number of specialty clinics. As I mentioned, I think this is good because, again, we’re reaching out to a body of students that for a long time clinical legal education largely ignored. We were so focused on litigation and so focused on poverty issues that we forgot about the students who really wanted the hands-on learning but didn’t identify with the subject matter. I think any clinic is a good clinic. By creating these specialty clinics, we’ve brought in a greater number of the student body that previously might not have thought about taking a clinical course.

I also believe, whether it’s on a school-by-school basis or whether it’s based on some reforms to the bar exam, we are going to see schools requiring—or at the very least guaranteeing—that students have this kind of hands-on training. It’s been interesting for me to see how, with the CSALE data we have, clinical faculty at various schools now say, “With this data, I can now go to my dean and show them that we need to change.” I think we’re up to 80 schools or more that now guarantee or require clinical training. We’re coming closer and closer to the day when this is going to be an absolute. We’re just not going to allow a student to graduate from a law school without having him or her, in some way and in some form, grapple with the problem of a real client in an educational setting, where we can slow down the case a bit and teach the student best practices so that, when they graduate, they’re not seeing a client’s problem for the first time. This is my hope for the future.

Robert R. Kuehn is the associate dean for clinical education and a professor of law at the Washington University in St. Louis School of Law.

David B. Wilkins is the Lester Kissel Professor of Law at Harvard Law School, vice dean for Global Initiatives on the Legal Profession, and faculty director of the Center on the Legal Profession.