Dissecting the Dichotomy of Skill and Social Justice Theory of Law School Legal Aid Clinics in the USA and India: A Re-look of the Past and the Present
| Author | K. Rajashree |
| Date | 01 January 2021 |
| Published date | 01 January 2021 |
| DOI | 10.1177/2322005820982064 |
| Subject Matter | Articles |
Article
Dissecting the Dichotomy of Skill
and Social Justice Theory of Law
School Legal Aid Clinics in the
USA and India: A Re-look of the
Past and the Present
K. Rajashree1
Abstract
With the mushrooming of legal aid clinics across institutions imparting legal education, there exists a
conundrum as to their actual objectives. With passage of time, social justice theory is losing ground
and skill development theory has gained greater predominance. In order to understand the objectives
behind establishing legal aid clinics, the article traces its inter-linkages with the theory of social justice.
In doing so, an analysis of the context under which legal aid clinics were established and their relevance
to the present day is explored through the article. With the passage of 22 years of establishment of
law school legal aid clinics in India, there still exists a dichotomy as to their real purpose and objective.
These models of legal aid clinics of the past not only offer insights to develop present models of legal
aid clinics, but there is also a need to emulate these models as they are relevant and apt even to this
day. The article adapts a comparative approach between India and the USA, chronicling the past and
present sojourns of the journey of law school legal aid clinics and the suitability of the social justice
theory to the current Indian context.
Introduction
Since the introduction of legal aid to law schools, it has witnessed several changes and occupies an
important component in legal education. Ever since its arrival, it has spearheaded vast changes to the
societal order. Having participated at least once or more in legal aid activities during their stint at law
schools, every student of law must have wondered about its objective, role and its practical application.
The ‘rule of law’, perceives a just and egalitarian society, the ethos of which is reflective in the Indian
Constitution. Aligning to these principles, subsequent legislations were enacted and changes to legal
education through legal aid have found their way. Yet its larger understandings and application are
shrouded in confusion and often, subject to questioning.
Asian Journal of Legal Education
8(1) 79–94, 2021
© 2021 The West Bengal National
University of Juridical Sciences
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DOI: 10.1177/2322005820982064
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Corresponding author:
K. Rajashree, Research Scholar, School of Law, Christ (Deemed-to-be) University, Bengaluru, Karnataka 560029,
India.
E-mail: rajashree.k@res.christuniversity.in
1 School of Law, Christ (Deemed to be) University, Bengaluru, Karnataka, India.
80 Asian Journal of Legal Education 8(1)
Involvement of students in legal aid clinics exposes them to a wide range of activities pertaining to
the practice of the legal profession, and at the same time,2 their activities are akin to the activities of a
law firm. When legal aid is offered by students in the legal aid clinics, it fulfils dual roles: first, it acts as
a vehicle for rendering social service, and second, it offers opportunities for learning through experience.3
Studies in the USA have shown that when students represent the clients through the legal aid clinics and
a clinical lawyer, they offer ‘a similar standard of care’ offered by any other legal attorney.4 It is opined
by Robert. G. Storey that when apprentice model of training faded, the legal aid clinics came to the
rescue of the law students. When legal aid is advanced through a law school legal aid clinic, it gives an
opportunity to individual students to face live clients. He clearly articulates that ‘problems come from
people and not from the books’.5
Professor Dr N. R. Madhava Menon states that ‘legal education is considered as more of a public
good than a private good’,6 but the authors wonder as to why there is still lack of understanding the
ultimate objective of legal aid not only as an educational experience but also as those experiences that
propel towards fulfilling societal needs of attaining social justice.
It is true and important to reflect the words of the then Dean of Harvard Law school that ‘lawyers are
what law schools make of them’. With law schools playing an important role in taking stock of societal
needs and responding to them, the law school legal aid clinics do not resonate the same ideology. Law
school legal aid clinics have faltered in fulfilling the actual task for which they came into existence. The
actual state of affairs of the legal aid clinics is a reflection of the lack of an ideology conceived by legal
philosophers, academics and legal luminaries.
Hence in the light of such background literature from the USA and India, the article tries to unpack
the critical linkage that legal aid clinics have to the social justice theory and its gradual decline, while
stressing the need for legal aid clinics to reorient and regain themselves. Such reflections and changes
are crucial for broadening the understandings of law students and to move towards gradual progression
in fulfilling societal needs.
‘The Classical Legal Thought’7 of Jurisprudence by Professor Langdell
While tracing the evolution of clinical legal education historically, it was found that integration of legal
aid into legal education has two theoretical perspectives. First, as a pedagogic tool for skill advancement
and second, the advancement of social justice goals, a product of the western philosophy having its
origin in the USA. A recall of the case study method adopted in the year 1870 by the Dean of Harvard
Law School, Professor Christopher Columbus Langdell points to one of the first crucial steps towards
reformation of legal education. 8 The case study method of teaching had arrived at the legal education
2 Quintin Johnstone, Law School Legal Aid Clinics, 3 J. LegaL educ. 535 (1951).
3 Herbert M. Silverberg, Law School Legal Aid Clinics: A Sample Plan; Their Legal Status, 117 u. Pa. L. Rev. 970 (1968–1969).
4 Colleen F. Shanahan, Jeffrey Selbin, Alyx Mark & Anna E. Carpenter, Measuring Law School Clinics, 92 TuL. L. Rev. 547
(2018).
5 Robert G. Storey, Law School Legal Aid Clinics—Foreword, 3 J. LegaL educ. 533 (1951).
6 N.R. Madhava Menon, Murali Neelakantan & Sumeet Malik, Towards a Draft National Policy on Legal Education, in an Idea
of a Law SchooL: IdeaS fRom The Law SchooL (EBC 2019).
7 Lewis A. Grossman, Langdell Upside-Down: James Coolidge Carter and the Anticlassical Jurisprudence of Anticodification, 19
YaLe J. L. human. 149 (2007).
8 George S. Grossman, Clinical Legal Education: History and Diagnosis, 1 J. LegaL educ. 8–23 (2015).
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