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TRANSFORMDONT JUST TINKERWITHLEGAL EDUCATION

GERALD P. LOPEZ*

In this two-part article, Part I evaluates how the past decadestransformation of legal education amounts so far to just so muchtime-honored tinkering. Over the past ten years, most schoolschanged very little, and the small number that changed a fair amount(overwhelmingly in the second and third years) borrowed directlyfrom what other law schools have been doing for decades. Becausewe must learn all we can from these recent years (and earlier eras),Part I aspires to present in something like realistic form the institu-tional, material, and ideological forces we all encounter and too oftenreproduce. What makes the past decades near-ritualistic experienceall the more regrettable is that we have available an alternative visionof legal education ready now for a full roll-out. Because this visiontraces its origins, its implementation, its improvements to the best ofclinical programs in the United States, cynics will doubtlessly scoff.Facing down the disparagers, Part II will sketch the radically differ-ent assumptions, methods, and aspirations that define how this visioncontrasts with the at best status-quo-plus version of legal educationstrongly internalized and widely practiced. Part I is not at all the set-up to Part II, and Part II is not at all an impractical ideal offered tosoften the blunt realities portrayed in Part I. The two parts standalone and belong together, both to chasten and embolden us, at leastif were willing.

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472 RI. The Current Circumstance of Legal Education in the

United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487 RA. Sketch of Current Circumstances . . . . . . . . . . . . . . . . . . . 487 RB. A Fresh and Familiar Consensus and Menu of

Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492 RC. Strange and Predictable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494 R

* Professor of Law, UCLA School of Law. Deepest thanks to the organizers of andparticipants at the Clinical Law Review Symposium, Rebellious Lawyering at 25, on May 1,2016, in Baltimore, Maryland, to the UCLA law librarians (and the late June Kim), and toDamon Agnos, Jessi Bulaon, Stephen Carpenter, Sally Dickson, Tara Ford, MarthaGomez, Jenny Horne, Rusty Klibaner, Andrea Matsuoka, Brenda Montes, Daria FisherPage, Gary Peck, Luca Sanchez, Dian Sohn, Kim Taylor-Thompson, Jana Whalley, andthose Clinical Law Review practice prohibits me from naming.

471

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472 CLINICAL LAW REVIEW [Vol. 23:471

1. What Feels Strange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494 R2. What Feels Predictable . . . . . . . . . . . . . . . . . . . . . . . . . 505 R

D. Sensing Some Other Powerful Force Also at Work . 510 RII. Three Separable Versions of the Same Deep Story . . . . . 515 R

A. Version I - The Popular Portrayal and Critique . . . . . 516 RB. Version II The Functional Portrayal and Critique. 524 RC. Version III The Historically More Particular and

Ideologically More Explicit Dominant Story . . . . . . . . 533 RD. Predictable But Not Inevitable Convergence . . . . . . . 544 RE. Yet, Heres Where We Are . . . . . . . . . . . . . . . . . . . . . . . . . 551 R

Appendix 1. Curricular Reforms at Selected Schools2007-2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 559 R

Appendix 2. Current Clinical Offerings at Selected Schools . . . . 564 R

INTRODUCTION

What then shall we do about fundamentally changing legal educa-tion? Shall we just encourage every law school to proclaim they al-ready have? After all, during the past ten years of colossal agitationover the quality of legal education, several high-profile law schoolsclaim to have revolutionized the curriculum for the first time since1870. In fact, they appended only this or that feature to the same basicdesign, and all the newly implemented components had already beenpart of curricula at other institutions. And other law schools have fol-lowed suit. You get the point. We could simply declare victory andevacuate this godforsaken territory.

Thats the message many people I know have taken away fromthe past decade. Certainly those who favor nothing more than at moststatus-quo-plus changes excitedly convey triumphant closure in everyway they can. And those who conscientiously and optimistically en-gaged (on special committees, as part of national coalitions, with thestate bar, before the ABA, with the AALS) anticipating fundamentalchange feel duped, frustrated, cheated, mugged, suckered,double-crossed, and furious. Many who pursued reform share asense of Im done with all that, maybe forever. Finally those whopredicted from the start the exact unfolding of events and certainlythe outcome wonder why we must repeat this elaborate ritual when, intheir eyes, the results and effects can be described as pre-determined.Repeat: Declare victory and evacuate this godforsaken territory.

We can learn far more, though, from our most recent profession-wide focus on the quality of legal education. We not only can, weshould. At least we should if we count ourselves as among those whothink far more should have come of all the exceedingly smart sweatlabor. If we count ourselves as among those who cannot abide the

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Spring 2017] TransformDont Just Tinker WithLegal Education 473

hyperbolic marketing of only modestly reformed legal education. Ifwe count ourselves as among those who do not want again to be hood-winked into huge amounts of work doomed almost immediately tovanish from memory like the report of yet another task force. Indeed,we should if we count ourselves as among those who simply care tolearn about how institutions, systems, and cultures work.

And if you just happen to be weird like me, theres an even moreimmediate here-and-now reason. If youre a holdout who believeswere not yet finished with this period of unrest, if youre a holdoutdespite the largely successful efforts to declare an end to this chapterin the history of legal education, if youre a holdout despite the ex-haustion and perhaps disillusionment visible in some of the most ex-traordinary advocates for fundamental change, then you may want totreat what we can learn from the past decade as essential feedback.How can we holdouts do better? If we want to transform systems, wemust understand how people have managed to resist, deflect, andchannel radical and reform initiatives.

Thats how I found myself at the keyboard banging out my expla-nation of what has come to pass. Working with, watching, hearingfrom, reading about many involved in separable and collective effortsto change legal education has helped me take in, as always, variedperspectives and divergent experiences. Taking stock helps me grapplewith where we are now and helps me confront just how well I havecomprehended the circumstance. In this two-part article, I mean toevaluate afresh the tinkering in order to work through with othershow to transform the seemingly unchangeable.

Much as many others have contributed to what I feel and think,my depiction will extend beyond where even my most trusted advisorswould have me go. They agree entirely with writing about what hasoccurred thus far. After all, we in the legal profession, and particularlyin legal education, have just been through a turbulent period. Seriouscritiques of legal education, deepened and sharpened by the pressuresof the Great Recession, dulled the luster and even threatened thecredibility of law schools. Wouldnt such forces produce an environ-ment hugely favoring the changes long urged by dreamers of all sorts?Besides, inside and outside critics were not just carping without a plan.At least some came equipped with wide and deep, legitimately lauda-ble proposals.

My trusted advisors agree, too, that over roughly the past decade,those driven to improve legal education have done what they could.These crusaders are a motley crew. They include dedicated main-stream idealists and radical utopians. They have been resourceful andeven ingenious. They deserve thick written case studies commemorat-

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474 CLINICAL LAW REVIEW [Vol. 23:471

ing their efforts. Some managed to succeed, impressively compared towhat insiders would have predicted, modestly compared to what theysought. Others invested great ingenuity and resolve only to fail, insome instances enduring rough reversals after initial successes. Stillothers never introduced a formidable proposal; they could not imag-ine successfully bucking the odds. Especially with the end of the GreatRecession, with curricular weariness overcoming many, the time forfundamental change may well have come and gone. Go ahead andreport what has taken place, exhort my advisors, and offer a diagnosisabout why.

Most of those I work closely with think material forcesvestedinterests in the status quotell the entire tale we need to acknowl-edge. They would have me portray how those forces entangle andstrangle even the worthiest transformational proposals. Then theywould have me call it a day. Over. Hard stop. I respect this opinion. Iespecially do because at least some of these sage advisors predictedwith great accuracy how this past decade would unfold and how itwould end. When these women and men bet, they win