Experiments in Lawyering, Take Two
Ian Ayres, commenting on What Difference Representation, asks: “Does HLAB have a duty to stop offering representation or to change its modus operandi? Does it at least have an ethical duty to disclose the results of the study to prospective clients? Can other student legal service organizations ethically ignore the results of the study?” I agree that the paper raises important questions – though I’m not sure the result generalizes to all “legal service organizations.” LHAB represents clients in employment benefit cases, where narrative framing & rough justice is likely to predominate. This is the weakest case for the representation effect imaginable. If we saw a similar effect in refugee clinics, or ones offering criminal defense services, it would be mindblowing. But until we do, I think a little caution is warranted.
How could we encourage experimentation that would help us answer this important question? The obvious place to start would be the ABA Accreditation Standards Committee, already engaged in a huge debate about both skills training & outcome measures. If the Committee were so minded, it might link new requirements for more clinical education to rigorous ways to measure whether those new clinics and skill training opportunities produce better results for clients. By incorporating randomized control studies into clinic design, the ABA could thereby produce highly useful data for legal policymakers (which would certainly be otherwise unavailable), and would ensure that schools spend money on clinical education in ways that are socially beneficial. Given that almost all law school clinics are incredibly oversubscribed, it ought to be quite easy to sell randomization in selection, unless there is an important pedagogical reason for selection that I’m missing.
I recognize that given the politics of clinical education, my proposal is a nonstarter. However, given that it is exceedingly difficult to study the effect of representation by looking only at observational data, randomized clinical selection might be our best chance to figure out when and how lawyers add value. It would also allow the Bar & legal academy to advance two newly dominant goals for legal education, at very low cost. What’s not to like?