1.5 Clinics, Externships, the Law School Curriculum & the Hidden Curriculum

Connecting Work-Informed Learning to Other Parts of the Law School Curriculum

With a few exceptions, most first year law curriculum orients law students to foundational approaches, contexts, and doctrine essential to understanding law and legal reasoning. This approach is quite different from its precursor – an apprenticeship model. Legal training has gone from a strictly apprenticeship model to one embedded in universities. The history of this approach in Canada is fascinating, but in short, Canadian law schools eventually adopted a method that remains today – one focused largely on caselaw and legislation. This shift from apprenticeship to university model has had both positive and negative impacts. On the positive side, a greater diversity of students was (eventually) admitted to law schools. Law school curriculum can provide exceptional critical insights about law and legal systems.  The case method of teaching introduces students to judicial reasoning and a method of problem analysis. A more challenging aspect has been the unclear role of legal education in the spectrum of professional learning. The caselaw method of teaching tends to separate practice-oriented experiences from theory – and sometimes this theory has been the more narrowly constructed theory of judicial decision making rather than wider views of jurisprudence. Despite (or perhaps because) of this, clinical and experiential approaches in Canada grew in response mostly to student activism. Clinical and experiential programs remain somewhat disconnected from the rest of the law school curriculum.

As most law students know, case law, legislation, and legal research and writing introduce a sometimes bewildering way to understand and organise human behaviour (and, mostly, conflict). This learning is important to understand how formal Western law is conceived, how lawyers and judges organise their reasoning, and how colonial legal systems operate. However, this approach (often connected with legal positivism) can also lead to conceiving of law as a “system of rules” separate from human and institutional impact.

Margaret Thornton connected this approach to technocentrism, a term referencing a political shift to the right, “the contraction of the public sphere, the privatization of public goods, globalization, and a preoccupation with efficiency, economic rationalism, and profits… technical reasoning, or ‘technocentrism’, which has enabled corporatism to evade scrutiny”. It can also more generally act as a depoliticising force that decontextualises law from how it is experienced by clients and communities. Nonetheless, deep engagement with judicial reasoning introduces the operation of courts, how legal arguments are made and interpreted, how evidence is used, and so on. This knowledge is in some ways the cognitive “bread and butter” of lawyering in the common law tradition.

Other more recent movements have challenged the dominance of this approach in legal education. Legal process, critical race theory, feminist legal theory, “law from below” movements, and many other approaches have emphasized the importance of social context, lived experience, systemic forces, and so on in understanding what the law “is” and how it should be. This has led to important changes in curriculum – including courses on Disability, Race, Feminism, and so on. In Canada, law schools have also begun teaching Indigenous Legal Orders or other courses that situate Indigenous legal systems as independent legal traditions alongside, equal to, and pre-dating civil and common law traditions. We are only touching the surface of how these and other courses will change understanding of law and legal orders in Canada in future.

Alongside the rise of critical theory and the “law and” movements rose increased attention to clinical and experiential learning. This learning was first “co-curricular” or even extra-curricular. As noted above, Canadian law students agitated for clinical programming, sometimes starting their own clinics with little or no law school support. These programs have morphed into full-fledged parts of legal education today, recognised through course credit and attention to pedagogy and clinical methods of learning. Some law schools have made clinical and/or experiential learning credits required before graduation.

Despite the proliferation of these types of clinical and experiential programming, they are still rarer than doctrinal courses and often misunderstood. These learning experiences typically – although not always – occur in 2L and 3L. If experiential learning was not a dominant part of a student’s 1L experience, it can seem like a stark departure from “the rest” of law school. It calls on a different set of skills, knowledge, and an ethical or attitudinal approach that can be overwhelming – or, as one student put it, “like drinking from a firehose.”

From a regulatory perspective, law school curriculum is approved by the Federation of Law Societies of Canada. Among many other roles, the FLSC’s National Requirement sets out what law schools must ensure students understand or are able to do upon graduation. In its current form, the National Requirement does not require clinical or experiential learning. Indeed, there are very few courses or skills that might be interpreted as “practice skills oriented” in a client-centred way (such as interviewing, client counseling, etc.).

This is in stark contrast to the American Bar Association, which heavily regulates legal education in the U.S. and now requires mandatory experiential learning. The ABA’s Standard 303 requires that all accredited law schools must require students to complete at least one experiential learning course that totals at least six credit hours. To satisfy this requirement, a course must be primarily experiential in nature and must:

1. Integrate doctrine, theory, skills, and legal ethics, and engage students in performance of one or more of the professional skills identified in Standard 302.
2. Develop the concepts underlying the professional skills being taught.
3. Provide multiple opportunities for performance.
4. Provide opportunities for self-evaluation.

Indeed, clinical and externship experiences are much more plentiful in the U.S. than in Canada (although the number of clinics in Canada seems to be expanding). There are many reasons for this. One reason is that Canadian provinces and territories require articling. Articling is intended to be the “applied” portion of legal education under close supervision and mentorship. Articling has come under serious fire in recent years for many reasons including declining quality of supervision, racism and sexism, and loosely regulated market control. Its future remains uncertain.

Some law schools have chosen to incorporate an “Integrated Practice Curriculum” which meets the articling requirements and doctrinal education requirements in the three years of law school. Some place-based programs meet the “experiential training competencies” through the IPC.

Clinical and externship professorships (whether research and/or teaching stream) are also less plentiful in Canada. Evidence is also clear that government funding of clinics, including teaching clinics (in Ontario, “SLSO” clinics) directly relates to greater numbers of law school clinics.

Externships in particular are still relatively new in Canada. There is a longer history of co-ops, internships, and field placements. A fully integrated for-credit placement program is still relatively rare. In contrast, externships in the US are quite common. The volume of academic writing about externships in Canada specifically is still fairly sparse and the pedagogy is evolving. Some of its foundational bones are set out in this course-book, but it will certainly evolve over the next several decades. More generally, the future of legal education in Canada remains opaque especially in regards to clinical and experiential learning.

Socialization & Law School – The Hidden Curriculum

The aspects of legal education examined above occur mostly explicitly. They might not be tested. They might not be part of classroom discourse. But certainly the activities occur as acknowledged parts of legal education. However, underlying all these activities are a set of practices, assumptions, and biases that remain mostly unacknowledged. Aspects of these unacknowledged parts of the curriculum are sometimes referred to as the “hidden curriculum”. This term is used differently in various pedagogical contexts. It was first used by Philip Jackson in his book “Life in Classrooms” (1968), and significantly expanded elsewhere, including Benson Snyder’s “The Hidden Curriculum”. Snyder notes the inevitable lessons that are not formally taught in educational contexts but nonetheless are learned. These include the reinforcement of social hierachies, expectations of maleness, whiteness, dis/ability, and so on (see Benson Snyder, “The Hidden Curriculum” (Cambridge, MA: MIT Press, 1973) . They are the norms of an educational institution but they are typically not taught directly. In law school, these might include expectations that students drink alcohol, that students dress a certain way or conform to a certain body image.

This “hidden curriculum” has significant impacts on law students’ educational experiences, and set in motion career-long patterns that become more or less visible over time. Partly because legal education spends so little time engaging with professional identity and the embodiment of lawyering, many of these hidden elements go unacknowledged and often unchallenged.

As noted above, the hidden curriculum (eg norms about workplace conduct, “professionalism”, dress, and so on) exist in law practice. Students in an externship or clinic context will be exposed to the operationalization of legal power in ways that can advance justice and equality, undermine it, or (often) a combination of both. The practice of “professional noticing” described earlier in this Chapter is one way to identify these patterns in practice.

Clinics and externships provide a unique way to think about and – most importantly – experience in embodied ways how social justice operates (or doesn’t operate) in legal contexts. There are many inspirational and critical examinations of the role of legal education in facilitating neoliberal, narrow and patriarchal approaches, and indeed undermining mental health and social justice movements.