Grosberg, Lawrence M

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digitalcommons.nyls.eduFaculty Scholarship Articles & Chapters1990Introduction: Defining Clinical Scholarship[comments]Lawrence M. GrosbergNew York Law School, lawrence.grosberg@nyls.eduFollow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chaptersThis Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion inArticles & Chapters by an authorized administrator of DigitalCommons@NYLS.Recommended Citation35 N. Y. L. Sch. L. Rev. 1 (1990)NEW YORK LAW SCHOOLLAW REVIEWVOLUME XXXV NUMBER 1 1990INTRODUCTION: DEFINING CLINICAL SCHOLARSHIPLAWRENCE M. GROSBERG"Even a cursory reading of the articles in this volume shows thatclinical writing is flourishing. The New York Law School Law Review hasbrought together works representative of the current scholarly productionof clinicians. Only one other law review issue comes to mind as acompilation of a similar body of writing.' The papers in both collectionswere first presented, respectively, at the first and second UCLA-Universityof Warwick International Clinical Conference, a highly successful effortdevoted specifically to the development of clinical scholarship. These twocollections and the conference reflect the new stage at which we havearrived in the relatively short, twenty-year history of clinical education.2This relationship between the clinician and scholarly work product hassteadily matured. The purpose of this brief introduction is to comment onthat phenomenon.Among legal educators there is no group more introspective thanclinicians. We examine the role we have assumed within academia. Wehave lengthy debates on how we shall carry out our teachingresponsibilities. To many in and outside our ranks, teaching methodologyand clinical education are synonymous. A good deal of our energies areaimed at assisting our students in developing their skills of self-reflection,their ability to analyze critically what they do as lawyers. Amongourselves, we continue these reciprocal critiques and self-critiques, oftento such an extent that to nonclinicians, it appears we are conducting anexercise in collective masochism. But that is not the case. Rather, it is ourDirector, Lawyering Skills Center, New York Law School.1. See Symposium. ClinicalEducation, 34 UCLA L. REV. 577 (1987). While there havebeen several compilations of articles on clinical education in the last twenty years, only thisNew York Law School Law Review issue and the UCLA volume seem dedicated solely tothe dissemination of clinical scholarship. See Alfieri, Essay: The Politics of ClinicalKnowledge, 35 N.Y.L. ScH. L. REy. 7, 7 n.1 (1990) (listing various recent law review issuesdedicated to clinical education).2. Another effort devoted to clinical scholarship is the Columbia Law School ClinicalTheory Workshop, begun several years ago by Professor Stephen Ellmann. During thecurrent academic year, six papers are being written for presentation at the Workshop.NEW YORK LAW SCHOOL L4W REVIEWpedagogical commitment to producing a law graduate who will be abetter, wiser, more effective, efficient, and humane lawyer that impels usto scrutinize our activities to the extent that we do.3That normative theme goes to the heart of one of our most heatedlydebated current subjects of self-reflection: Should clinicians producescholarship? From this threshold question flow other key concerns. If itis found that they should, what kind of scholarship should it be and atwhose expense will it be produced? Will law students and the clients theyserve be shortchanged because clinicians have less time for clinicalsupervision? 4 Will law schools facilitate clinical scholarly work byappropriately recognizing the physical and emotional limits of clinicians?These issues should be considered as you read and digest the papers inthis volume.Most of our discussions of these questions have been defensive innature.' The tenor of the debates has been shaped by the circumstancesthat instigated them. One question is, "Why don't or can't clinicianspublish?" The message asserted by the traditional academics is, "Ifclinicians want tenure or comparable job security, they must write. If theycan't write, they are not our equals." If clinicians want a place inacademia, they simply have to write.6 I wish to change the tone of our3. One of the exhilarating experiences for me in attending many gatherings ofclinicians over the years has been the opportunity to feel the genuine concern for thestudent. It is universal and often eloquently expressed. It is what causes us to examine andcriticize what we do, what we say, what we teach, and as this issue shows, what we write.See generally Alfieri, supra note 1.4. See generally Elson, The Case Against Legal Scholarship or, If the Professor MustPublish, Must the Profession Perish?, 39 J. LEGAL EDUC. 343 (1989) (The paramount dutyof law schools is to educate students to be competent practitioners. To the extent thescholarly mission exhausts limited resources, it undermines that dominant responsibility.).5. For the most part, these clinical debates have been informal and recorded principallyin the AALS Clinical Section Newsletter. See, eg., Hoffman, Message from the Chair, AALSSec. CLINICAL LEGAL EDU . NEmsL., March 1987, at 1, 2 (a hortatory call for scholarshipso that we will be judged as "equals"); Palm, Messagefrom the Chair, AALS Se. CLINICALLEGAL EDUC. NEVSL, Sept. 1986, at 1 (a very thoughtful discussion of such important issuesas: How will it be funded? What should it be? What effect will it have on the quality andquantity of clinical teaching?); Simon, How to Be a Scholarly Clinician?, AALS Sec.CLJNICAL LEGAL EDUC. NEWSL., March 1987, at 20 (a useful how-to-do-it guide); Strong,Message from the Chair, AALS Se- CLINICAL LEGAL EDUC. NEWSL, March/April 1990, at3 (a comment on the evolution of our oral tradition to a scholarly tradition). See also thecomments of Elliott Milstein, Kandis Scott, and Philip Schrag, in Panel Discussion, ClinicalLegal Education: Reflections on the Past Fifteen Years and Aspirations for the Future, 36 CATH.U.L. Rev. 337, 360-64 (1987) (discussing the notion of traditional scholarship by clinicians);and most especially, David Barnhizer's article in this collection. See Barnhizer, The UniversityIdeal and Clinical Legal Education, 35 N.Y.L. SCH. L. Rev. 87 (1990).6. See Barnhizer, supra note 5, at text accompanying notes 121-46. Professor Barnhizerpresents a strongly worded critique of any clinician who even thinks about resisting the need[Vol. 35INTRODUCTIONdiscussion of the scholarship question. We are past the defensive stageand now may consider these issues from a different and more positivevantage point.Much is unique about clinicians' perspective on the law, lawyering,and learning how to be a lawyer. It is this uniqueness that some of therecent clinical scholarship is beginning to illuminate. We should applaudthese scholarly pursuits (which I am doing here) and encourage them(which most usefully must be done by our nonclinical law schooladministrative and academic colleagues). Unlike the lawyers who do notteach or have time to reflect, let alone write, or the nonclinical teacherswho do not do any lawyering, the clinician does or at least could do allof these things. This is where our scholarly potential lies.A few comments about two of the papers in this volume, the Hartwelland Peters' articles, will help me make my point.7 These articles usefullyillustrate the naturalness of the process of creating clinical scholarship.Both demonstrate vividly how such scholarship flows directly from live-client clinical supervision. It is that process that best defines clinicalscholarship.Steven Hartwell's article' is a clinician's multidimensional response toan issue directly related to the concern for producing better and morehumane lawyers-namely, should a clinician try to influence the role thatmorality plays in the life and practice of the lawyer. The question arosedirectly from his supervision of a student in a live-client clinic. Heresearched related philosophical and psychological materials, in particular,Kohlberg's theory on moral development.9 After developing tentativeinterdisciplinary theses about the relevance of this theory to lawyering, hetook the next clinical step: how to apply the thesis in his teaching. Hedevised a pedagogical plan, based, not surprisingly, on experientiallearning, and then carried it out. Hartwell did not stop there, but insteadsought to measure empirically the impact of his pedagogy.10and appropriateness of scholarship.7. I should add that this is not the place to summarize or review all of the articlesin this issue. Tony Alfieri, in fact, does just that in his critical essay at the beginning ofthis volume. See Alfieri, supra note 1. These brief observations, therefore, in no way suggesta lesser importance or value in the other articles. To the contrary, each of these sevenarticles, diverse though they are, makes a valuable contribution to clinical education. Rather,my remarks are offered as a commentary on the process of creation of clinical scholarship.8. Hartwell, Moral Developmen Ethical Conduc4 and Clinical Education, 35 N.Y.L.SCH. L REv. 131 (1990).9. Id. at 133.10. Empirical research in the clinical context, under carefully designed conditions,offers wide opportunities for scholarship. See, eg, Stark, Tegeler & Channels, The Effectof Student Values on Lawyering Perfonnance: An Empirical Response to Professor Condlin,37 J. LEGAL EDUC. 409 (1987).1990]NEW YORK LAW SCHOOL LAW REPIEWWhile not definitive in any statistical sense, the effort reflects aclinician's sensitivity to the nexus between theory and practice. Hartwell'spaper exemplifies the innovative efforts of the modem clinician whoconceptualizes, implements, assesses empirically, and then analyzes. It isclinical scholarship in the best sense of our new and developing tradition.In a similar fashion, Don and Martha Peters take a relativelystraightforward proposition -that a lawyer who is more self-awareprobably can become a better interviewer -and subject it to a clinician'sanalysis." Using the Myers-Briggs psychological type indicator as a vehiclefor their analysis, they posit their hypothesis about the interrelationshipof psychology and skills learning theory: test it through use, observation,and study; and then analyze the results. Like Hartwell, their articlereflects both interdisciplinary and empirical work. In a fascinating manner,they correlate the psychological dispositions of lawyers to two veryconcrete facets of interviewing skills: the ability to ask properly formedquestions and the ability to listen. Doing something only clinicians usuallydo-videotaping initial interviews of twenty-three actual matrimonialclients (with their consent) -they transcribed the tapes and analyzed them.Their data, while concededly very limited, is striking. Among other things,it confirmed my own instincts and anecdotal observations. Moreimportantly, it suggests some discrete methods that clinicians might useto teach interviewing.Hartwell and the Peters personify the triple-threat clinician: theclinical educator; the lawyer (who provides important services togetherwith clinical students to a needy client population); and theresearcher/scholar. It is only in the live-client clinical context that such amultifaceted feat is achievable. Proceeding with sensitivity so as not tointrude on the lawyering function, they. closely examined interviewinginteractions. Furthermore, they did so in an interdisciplinary and, in oneinstance, a collaborative way that facilitated the compilation of empiricaldata that supported both their theories and possible additional research.A common denominator of both of these papers is the pursuit of ways toimprove the quality of our law graduates, which continues to be the goalof clinical education generally.Whatever were the numerous external factors that led clinicians inprior periods to publish, clinical scholarship now has its own internalforce. It is evolving almost unrestrainedly, building on the openness andinnovative spirit that have characterized clinical education. Thisscholarship moves forward on its own terms and for its own purposes. Itis that genuine quest for knowledge, coupled with the desire to explore11. Peters & Peters, Maybe That's Why I Do That: Psychological Type Theory, TheMyers-Brggs Type Indicator, and Learning Legal Interviewing, 35 N.Y.L. SCH. L Ray. 169(1990).[Vol. 35INTRODUCTIONhypotheses and test theories, that is reflected in much of the currentclinical scholarship. It is the same motivation that underlies traditionalscholarship. The resulting richness and diversity of clinical scholarship isdemonstrated in this volume.12The question now is how can we maintain the development andevolution of this clinical scholarly tradition, while preserving that whichis integral and valuable about clinical education -namely, the teacherclosely supervising the student on a live case and exploring thatexperience fully and in ways that lecture or even simulation cannotpossibly replicate. The short answer is we must do both. While it will notbe easy, the difficulty should not deter us from making the effort.Pluralism should be central to any response by either the clinicalmovement or the legal academy. Some clinicians may want to do onlytraditional doctrinal or theoretical analysis. At the other end are clinicianswho prefer to do only clinical supervision. The latter task is not onlyintegral to the continued lifeblood of clinical education, but it is also sodifferent from the teaching performed by the nonclinical law professor(and one that most academics simply do not want to, or perhaps cannot,provide), that a category for the pure clinical teacher ought to befacilitated, encouraged, and certainly respected. Otherwise, it may beimpossible to provide anything that approaches an adequate level ofclinical opportunities. Similarly, the kinds of writing or scholarship we ask12. These articles by no means exemplify all of the categories of our scholarship overthe last twenty years. But the coincidence of their compilation in one volume justifies, Ibelieve, my attempt to offer this more positive perspective on the status and definition ofclinical scholarship. Large categories of uniquely clinical scholarship that are not representedin this issue include innovative course materials: see, eg., G. BELLOW & B. MOULTON, THELAwYERING PROCESS: MATERIALS FOR CUNICAL INSMUCrON IN ADVOCACY (1978); M.MELTSNER & P. SCHRAG, PuBuc INTERESr ADVOCACY: MATERIALS FOR CLINICAL LEGALEDUCATION (1974) (both classics in clinical education); videotapes: see, e.g, the ethics seriesproduced by the University of Pennsylvania Law School Center on Professionalism,Professional Responsibility for Lawyers: A Guided Course (1990); papers with a feministfocus: see, ag., Eyster, Integrating Non-Sexist/Racist Perspectives into Traditional Course andClinical Settings, 14 S. ILL. U.LJ. 471 (1990); articles integrating doctrinal and skills issues:see, eg., Spiegel, Lawyers and ProfessionalAutonomy: Reflections on Corporate Lawyering andthe Doctrine of Informed Consent, 9 W. NEW ENG. L. REV. 139 (1987); Grosberg, ClassActions and Client-Centered Decisionmadng, 40 SYRAcusa L REV 709 (1989). Other loosecategories of scholarship that are reflected in this volume include pedagogical: eg., Binder,Bergman & Price, Lawyers as Counselors: A Client-Centered Approach, 35 N.Y.L SCH. L.REay. 29 (1990); theoretical: eg:, Barnhizer, supra note 5; Alfieri, supra note 1; empirical: eg.,McDiarmid, What's Going on Down There in the Basement: In-House Clinics Expand TheirBeachhea4 35 N.Y.L ScH. L REv. 239 (1990) (an analysis of clinical education). Articleslike those by Peters & Peters, supra note 11; Hartwell, supra note 8; as well as Weinstein,Teaching Mediation in Law Schools: TrainingLawyers to Be rse, 35 N.Y.L. ScH. L. REv. 199(1990), defy categorization, except of course to say that all three are uniquely clinicalscholarship.1990]NEW YORK LAW SCHOOL L4W REVIEWclinicians to produce should reflect the nature of clinical, not traditional,legal education. In that respect, diversity, not conformity, should be theoperating norm.u The community of clinicians, and in turn the largerworld of legal educators, ought to be able to accommodate clinicians whowrite, those who do not, and most importantly, those whose scholarlyproduction is as different in nature from other clinicians as it is from thatof traditional legal scholars.The goal is not to make ourselves over in the image of our traditionalcolleagues. We must do what we are uniquely qualified and genuinelyinclined to do, and we should proceed in our typically creative, free-wheeling, and often self-critical manner, ideally free of the intellectualand emotional constraints that may have blinded us temporarily during theearlier stages of the clinical scholarship debate. By compiling this volume,the editorial board of the New York Law School Law Review hascontributed importantly to the continued development of a clinicalscholarship tradition.13. This is not the place to debate such questions as what kinds of work will countas clinical scholarship for purposes of tenure or other forms of job security. A good start,however, would be to include at least all of the categories just noted. See supra note 12.[Vol. 35

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