Abstract
The development of clinical legal education and university law clinics in Latin America and North America is explored. Legal education in Argentina mainly relies on rote transmission of legal regulation and doctrine. Opportunities for the growth of legal clinics arose from specific social and political factors, such as the severe human rights violations committed by the military government during the late 1970s. The reform of the National Constitution in 1994 intensified the need for legal representation for the underprivileged. A further turning point resulted from the political and economic crisis of 2001, which significantly affected legal claims. In 2015, national authorities evaluated university accreditation, which included law programmes, after which criteria for the intensity of practical training were determined. Law school clinics are, however, still marginal in curricula and are in many cases limited to poorly supervised practice sessions with insufficient social impact.
Brazil had, until very recently, no colleges or universities. The elite of the Brazilian colony sent their children to Portugal for higher education. In 1995, the Brazilian Network for Human Rights Education was established, using education as a means of building democracy ensuring that the horrors experienced by Brazilian society during the years of military dictatorship, from 1964 to 1986, would never be repeated. However, Brazil’s Ministry of Education has used the word clinic in the context of legal education only since 2018. Legal clinics are not yet part of mainstream legal education in Brazil, although legal centres exist where students are accommodated by way of simulations.
In 1960, Chile experienced the world’s most powerful recorded earthquake, the Valdivia earthquake and tsunami, which caused many deaths and massive devastation. This was followed by significant political shifts. In Chile, clinics are a direct product of the survivors of the 1960s, together with those who sought to suppress the legal reforms in the 1980s. The Political Constitution of 1980 guarantees equal protection under the law, as well as legal representation. Chilean universities are not permitted to award the title of lawyer, as this is reserved for the Supreme Court. To be admitted to practice, the court requires graduates to undergo a six-month practicum in a public office, the Judicial Assistance Corporation. Students who have had clinical experiences with real clients at their universities are much better prepared for the practicum, but there are no links between clinics and the Corporation. The majority of Chilean law schools have compulsory clinics. Not all serve live clients, but rather use simulations.
The first legal clinic in Colombia was established only in 1999, as it challenged traditional legal education. Few universities have legal clinics and, where they do exist, maintaining their structure is sometimes difficult due to a lack of understanding of the clinical model and methods. Any person may institute legal proceedings without the assistance of an attorney. Clinics use this strategically to allow students to deal directly with client disputes.
Since the 1970s, Mexican law schools have hosted pro bono law firms where students could gain real-world legal experience by serving underprivileged people. These firms, however, lack an explicit educational component. Some clinics form alliances with government agencies or NGOs to jointly provide legal services. Legal clinics do not form part of mainstream education in Mexico. Although there are more than 2 000 law schools in Mexico, only 20 have legal clinics. Most clinics are in-house and can accommodate only a handful of students. Students tend to enrol as volunteers or as part of a community service requirement, as students are legally required to complete 480 hours of community service to graduate. This service comprises any work done in the interest of society and the state. Students therefore commit hours each week to clinic work, mostly carrying out administrative tasks rather than participating in a clinical course.
The higher education system in Peru has changed significantly over the last few decades. Between 1990 and 2011, 93 universities were established. The liberalisation model from the 1993 Constitution allowed for the creation of for-profit universities, which radically changed the landscape of higher education in Peru and critically affected the quality of higher education.
In 2014, the Peruvian Congress enacted legislation to address systemic problems in Peruvian higher education. Universities were also required to adopt inclusion policies for persons with disabilities, indigenous peoples and persons living in poverty. By 2022, accreditation had been denied to 48 of the 143 Peruvian universities. Law Schools in Peru have implemented clinical legal education in two main ways. Free legal aid clinics are client-centred, providing counselling and representation to disadvantaged people. Public interest legal clinics strive to effect social change through strategic litigation, amicus curiae, and other advocacy strategies. Peruvian Law Schools prefer free legal aid clinics, which emerged in the 1980s as student-run initiatives without formal support. Clinical courses are compulsory at only 15 law schools. Thirty-one of the 96 licensed universities in Peru offer some form of clinical legal education. Most have chosen free legal aid clinics, with only three operating public interest legal clinics. All of these are located in Lima, possibly because of their proximity to the high courts of Peru.
The history of clinical legal education (CLE) in Canada is intertwined with movements for community-based access to justice and broader social justice that swept North America in the 1960s and 1970s. Some early clinics were established directly within law schools, while others were located off campus but maintained relationships with supporting law schools. In 1971, the federal government funded a number of community-based legal clinics that were affiliated with law schools. Since then, community legal clinics have remained relatively common. Other clinical programmes place students at external organisations with no law school governance, although a seminar is taught by a law school faculty member. In the Canadian context, the term clinical legal education is used to describe a range of experiential learning models, including internships or externships. Students provide legal services under the supervision of a licensed lawyer, with the mandate of promoting access to justice or serving the public interest. In most cases, students receive academic credit for successfully completing the programme. Clinical legal education has, however, not found a consistent foothold in Canadian law school curricula. Currently, only two law schools in Canada mandate some form of public interest, clinical or experiential education as a condition for graduation. In all other law schools, clinical programmes are optional within the curriculum. Distinct clinical pedagogy has not yet taken firm root in Canada. Permanent clinical positions are rare, and robust research amongst clinical academics is also limited. The Association for Canadian Clinical Legal Education, founded in 2010, has created a platform for CLE and has assisted in fostering a sense of community amongst clinicians across Canada. The longevity of clinics in Canada is, however, affected by unpredictable government and other external funding. Currently, the Federation of Law Societies of Canada is consulting on changes to the national competencies required of every Canadian law graduate. Some clinical law educators resist the notion that clinics should be responsible for fulfilling prescribed student competencies, noting that, in the clinical context, practice must respond to the needs of clients. The future of Canadian clinical legal education is therefore unclear.
CLE has a long and rich history in the United States of America (USA). Over several decades, the clinical movement has grown in three distinctive waves to become an established and required aspect of American legal education. CLE falls under the rubric of experiential education, which encompasses law clinics, externships, hybrids courses, combining features of both law clinics and externships, and simulation courses. Law clinics and externships, the primary forms of CLE, each have their own pedagogical norms and best practices. A distinct clinical methodology was developed to prepare students for the actual practice of law and to inculcate the values of the profession, with an emphasis on reflection as a critical component.
Clinical scholars have identified four distinct methodologies of clinical pedagogy. First, it includes the seminar component of a clinical course. Second, students learn through a process in which they meet as a group to discuss cases or projects. The third important aspect of clinical pedagogy is supervision, while the fourth clinical methodology is the clinic-based legal work students perform in either a law clinic or externship setting, which is important as students represent clients in court. Clinical programmes in the USA play a significant role in promoting access to justice and in advancing social justice through their practice and mission. American clinicians regularly publish their work, which also serves as guidance for clinicians globally.
Keywords: clinical legal education; clinical methodology; experiential education; externship; law clinics; live client clinics; seminar instruction; simulations
- This article’s featured image was created by Lara Jameson and obtained from Pexels.
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