 Clinical Legal Education, Theory and Practice
Legal education, at least in the Anglosphere, has been undergoing a quiet but very recognisable transformation. The case study method, developed by Christopher Columbus Langdell at Harvard in the 1870s, is steadily giving way to ‘authentic’, ‘real life’ or ‘experiential’ learning, wherein theory and practice are intermeshed. Law is now often studied ‘in context’ (consequences, remedies, and enforcement are discussed); the gap between ‘law in theory’ and ‘law in action’ is investigated; and the ‘theory of the practice’ is incorporated into the curriculum.
Clinical legal education (CLE) takes this pedagogical approach to its logical conclusion. In CLE, law students learn through the practical application of law by providing legal services to the public and by reflecting on this experience to develop their understanding of law and legal theory. In light of the above, it is unsurprising that CLE has seen a rapid growth in the UK in the past decade. In addition to the aforementioned pedagogical shift, another driving force for this growth has been the hollowing out of public services by years of austerity politics, manifested in significant cuts in the provision of free legal services, both from the voluntary sector and from private law firms with legal contracts. These two factors combined to create a growing demand from the general public for free legal services and a growing demand from law students for some practical experience to form part of their law studies. This expansion in university law clinics has also seen a gradual move away from the law clinic inhabiting a small extra-curricular space populated by a handful of keen volunteers to larger, permanently staffed spaces where the clinic is incorporated into the curriculum, forming an assessed and credit bearing part of both undergraduate and postgraduate law programmes.
Clinical legal education is now very much a part of the twenty-first century legal education landscape, with an estimated 80% of law schools in the UK offering some form of provision. Against this background, it is somewhat surprising that there are very few textbooks available for students. It seems likely that one reason for this is that each university law clinic is unique in its offering and there is no common substantive law uniting them. A law clinic may provide advice services in one or more of the following: family law, housing, employment, criminal law, welfare benefits, special educational needs, small businesses, immigration and asylum, small claims disputes. Those services may be supervised by law school staff or by external agencies working in partnership. When you come to consider the incredible variety of models of delivery along with the range of legal topics needed, the lack of standard core textbooks becomes less surprising, as it is hard to imagine how one book might serve quite so many needs.
In addition to the incredible range of substantive law that can be found in university law clinics, the rationale for and underpinning values of law clinics are highly contested. Is the university law clinic a vehicle for developing deep critical thinking about values, power and justice in an unjust world, a vehicle for developing employability skills for budding lawyers, a way for law schools to help meet the legal needs of local communities, or can it be all of the above?
Undaunted by this landscape, we decided to rise to the challenge of creating a text that unites the theory and the practice of clinical legal education—and in doing so set out our own vision of what clinical legal education is and can be. We seek to champion a vision of clinical legal education that is radical and transformative for students and the communities they serve whilst also positioning ourselves on the side of promoting social justice through legal practice.
We explore the ways in which experiential learning can enrich the student experience, not only by developing key employability skills but also by creating a space in which theory can be applied and become meaningful.
Our proposition is that there are 6 features to clinical legal education:
- Active participation: this is the defining feature, and thus the foundation of clinical legal education. There is no room in a clinic for students to passively absorb knowledge handed to them by a lecturer. They are active participants in their own learning experience.
- Interaction in role: students play an active part in interviewing, advising, or otherwise working for a client by adopting a professional role.[CA3] By taking on such a role, students learn how to interact with others as they would in legal practice.
- The dynamic nature of the problem: in legal education, we often design neatly packaged problems for students that will draw out their knowledge and understanding of a particular point of law or practice. In clinical legal education, the problem cannot be packaged, and the solution may not be clear, which pushes the students to think creatively to apply their skills and knowledge.
- Part of a planned curriculum: this does not necessarily mean that the clinic needs to form part of an assessed programme, but to move from beyond experience to education, a clear learning goal needs to be identified for students and educators. Education requires theorising, extrapolating experiences, conceptualising and framing them, understanding them as part of a general structure, and trying again on the basis of that understanding.
- Reflection: learning how to reflect allows students to make sense of their experience and learn from that experience.
- Access to justice: this feature is present in many, but not all, clinics. Teaching students about access to justice is central to our own approaches to clinical education and is therefore also central to the book.
We live in very uncertain times, and our students come to us anxious about jobs and their futures. Many of our universities in the UK are located in cities and regions where poverty, inequality, and injustice are part of the everyday landscape. Law students are hoping to enter a world of work that is changing so fast that neither practicing lawyers nor legal academics have a clear picture of what that world will look like. It is tempting, therefore, for the legal academy to collectively put our heads down and carry on with what we have always done: give lectures, teach the black letter law, expect students to read books and judgments and sit exams at the end of the year. We hope that this book and our vision of law as a site of injustice as well as justice, clinics as a site of theory and practice, and legal practice as a form of communication and connection between people will serve to inspire and support new generations of law students and their teachers.
Featured image by Sasun Bughdaryan via Unsplash.
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 Built on trust: the rigorous review process behind Oxford Law Pro’s Content [infographic]
Legal professionals need content they can depend on—accuracy, authority, and integrity are non-negotiable. At Oxford University Press, every legal title included in Oxford Law Pro undergoes a thorough review process involving Acquisition Editors, expert peer reviewers, and final approval by OUP Delegates, trusted senior professors at the University of Oxford and other leading institutions. This infographic delves into the detail of the review process, demonstrating how OUP ensures that its legal publications meet the highest standards, earning the trust of practitioners and scholars around the globe.
Featured image via Getty Images.
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 How to be a good lawyer in an AI world
“AI is an amazing legal assistant that will cut out all the boring work and make you three times as efficient.”
“AI is a copyright thief that will take your work and reproduce it without attribution or remuneration.”
“AI produces great value for your clients.”
“AI gets things wrong and will make you a global laughing stock if you cite imaginary cases in your court pleadings.”
Sounds familiar? There is no shortage of opinions on generative artificial intelligence (Gen AI) and its uses in the legal space. If you are a lawyer, it is probably dominating your office meetings and working dinner conversations. Many firms are taking a cautious approach but, with legal technology providers pouring hundreds of millions of pounds into developing ever faster, more accurate tools, it feels only a matter of time before the use of Gen AI is an integral part of most lawyers’ working days. That has interesting, if uncertain, implications for how young lawyers learn their craft and the kind of roles available to legal professionals, as well as for the delivery of justice.
There is something else that merits attention in the AI debate: what is the value of human thinking about the law? Law doesn’t exist in a vacuum. It is shaped and applied in a social, political, and economic reality created by humans. It is a deeply human endeavour. How can the law evolve if algorithms use statistics to apply legislation and precedent to the facts and produce pleadings—or even decisions—based on the most probable outcome? What is the role of lawyers and judges if their work can be mined by a large language model (LLM), which can then create its own legal advice, pleadings, and judgments, as well as legal scholarship, for anyone who knows how to write the right prompts? What does it mean to be a good lawyer when AI can do your work in seconds—for free?
We are not quite in that world yet but it is not a far-fetched scenario. Numerous tests have shown that the differences between student- or AI-written essays can be imperceptible even to experienced lecturers. Some of the steps to be taken are deeply practical: establish the right guardrails to stop the sharing of protected information with LLMs that will ingest that information and reuse it; train lawyers and legal scholars on how to use AI responsibly and to always check the source material; and press tech companies to be transparent about how their LLMs are trained and users’ data and privacy are protected. Ensuring LLMs are free from bias is particularly important. No single lawyer can achieve this but, collectively, lawyers’ advocacy for responsible, safe AI will make a difference.
Perhaps even more important is this: among everything AI promises, let us not lose sight of the importance of human thinking and creativity to the law. Sometimes a completely new line of argument or a highly creative interpretation is required to adapt the law to changing circumstances or shifts in society. AI cannot, or perhaps should not, do this. The best thinking is often slow, maturing over time as a lawyer or judge mulls a case over. Or it emerges in conversations with others, sometimes in unexpected ways. It is often sparked by something you read. Legal publishing has a crucial role here: helping to disseminate the best legal analysis and commentary across the globe and create a permanent record of every book, article, and short form piece. Being a good lawyer in an AI world involves placing enduring value on the quality and originality of human thought and scholarship.
Featured image by Ground Picture and licensed via Shutterstock.
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 Community, commerce, and open access experimentation
You may have wondered why so many publishers are announcing pilot projects on open access (OA) publishing. The theme of Open Access Week (October 21-27), Community over Commercialization, hints at the reason: publishers want to engage with the community’s request for new models but can’t afford to make a loss on OA (and shouldn’t be expected to). So, the innovation challenge is taken up by means of pilots: experiments that can be reviewed and then either rejected, repeated, or adapted.
Two Innovative Pilots
This year OUP is trialling two different OA funding models. Up until now OUP’s gold OA publishing outside of journals has largely been funded by processing charges for individual books, paid for by research funders or individual institutions. The two new initiatives look to fund OA on a much larger scale via diamond OA models that OUP has adopted and refined:
- Oxford Scholarship Online (OSO): Commit to Open seeks funding from the academic library community for the OA publication of 30 participating books. While other publishers have launched similar initiatives, the novelty here is our aim for radical openness:
- the 30 titles are announced up front.
- we have no minimum commitment threshold for publishing a book under an OA licence.
- progress will be publicized monthly.
- Max Planck Encyclopedias of International Law, the market-leading international law resource published by OUP, will be among the first non-journal publications to adopt the Subscribe to Open model (S2O). A range of publishers have tried out S2O with journals, where current subscribers are asked to continue to pay each year so that existing content can be made free to all, and new content is published under an OA license. So long as a high enough proportion of existing subscribers renew, the paywall is removed for a year, and then the process repeats the following year.
For OUP, finding ways to expand our OA offering is a perfect fit with our mission. It helps us to seize the opportunity that digital distribution offers for the unlimited dissemination of scholarship. That said, we are also acutely aware that paid-for OA can present risks of lower quality thresholds, and that there is a perception that OA books in particular are in some sense lesser than non-OA books.
For that reason, each book in our Commit to Open program was carefully selected for this pilot. Each went through the same rigorous peer- and internal -review process and was slated for regular sale as part of OSO before being pulled into Commit to Open. All of them would fare very well as commercial projects but we are excited to bring these works to an even broader community of readers through the program, and we look forward to seeing how they contribute to this developing model. Another key community element of the initiative is the inclusion of authors and topics that still struggle to attract funding for OA publishing: a “Support New Voices” collection by authors who are within six years of their first academic appointment, and a Humanities collection.
In the case of the Encyclopedias, they are already the most trusted source in the field. The importance for the community here lies in the nature of the content. International law deals with highly topical issues of global justice and equality—knowledge of it has the potential to benefit students, scholars, civil society activists, and practitioners everywhere. To make such a trusted resource freely available to the whole world would represent a significant public good.
Sustainability
What determines whether a pilot becomes a program? As mentioned, we use pilots to answer questions of sustainability and replication. In the case of Commit to Open, it is very labour-intensive to do it the way we have chosen e.g. agreeing all of the titles upfront, and the manual processes needed to implement a novel funding model. If the pilot is successful, we will need to work out whether it is sustainable to carry it out again, whether to expand it, and what permanent systems need to be put in place to support the program.
With Subscribe to Open the challenge is a different one. Operationally it is simplicity itself—absolutely nothing changes other than that the paywall is removed, so long as renewals hold up. But therein lies the risk: the (understandable) temptation for some subscribers to wait and see and take advantage of free access.
But those are questions for further down the line. Our immediate concern is getting engagement from the community and hearing responses to these initiatives, something we are very much hoping to achieve in OA Week.
You can find out more about Oxford Scholarship Online (OSO): Commit to Open in our upcoming librarian webinar on Tuesday, November 26, 2024. Sign up here.
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 Rethinking unjust enrichment
Restitutionary claims are pertinent to our daily interactions and commercial dealings. These claims arise in many scenarios including: improperly collected taxes, mistaken payments, disputes between cohabitants, payments on another person’s debt, mistaken improvements on another person’s property, and provision of unrequested services.
Originally coined by one of the leading private law scholars of the 20th century, Oxford Law Professor Peter Birks (1940-2002), the law of unjust enrichment provides a unifying framework for understanding the nature of all restitutionary claims, revealing a single ‘skeleton’ beneath. Stated in these terms, the law of unjust enrichment is a distinct ground of liability, alongside such classical private law categories as property, contract, torts, and equity. By situating previously disorganised restitutionary claims within one normative thread, unjust enrichment makes an argument about the past, present, and future of private law.
Professor Peter Birks stated that the following four elements constitute unjust enrichment’s liability formula:
- A defendant’s enrichment—the claimant should demonstrate that the defendant received some ‘benefit’ or ‘value’;
- at the plaintiff’s expense—the claimant should demonstrate that the enrichment occurred at their expense, establishing a causal link between the parties;
- the enrichment is unjust—the claimant should demonstrate that the enrichment falls into one of the categories previously recognised by the courts, such as mistake, duress, undue influence, or frustrated contract;
- defences—if the claimant proves the first three elements of the formula, then the defendant is able to claim the existence of one (or more) of the defences previously recognised by the courts, which could deny restitution.
Consider, for example, the case of mistaken payments where a claimant mistakenly transfers money to a defendant. The defendant receives money, meaning they are ‘enriched’ at the claimant’s expense. The case falls within one of the previously established categories—mistakes. It is open to the defendant to claim one of the defences. For example, the defendant can demonstrate that they spent the money in good faith on purchasing certain goods; something they would not have done without the mistaken transfer.
The four steps formula has been adopted in the House of Lords in Lipkin Gorman (1992) and then followed to varying degrees in other common law jurisdictions, such as Singapore, Hong Kong, and New Zealand. The four-stage formula has also heavily informed Canadian jurisprudence. Unjust enrichment has a different history in Australia where it has fallen in and out of favour. Yet, the future of unjust enrichment could not be brighter, not just in the UK, but across a wide range of the Commonwealth jurisdictions.
However, despite the continued support for unjust enrichment, there have always been academic critics of the idea. This now includes those who once supported the idea. The recent monograph by Oxford Law Professor Robert Stevens has challenged each one of the constitutive elements of the formula. Stevens demonstrates the significant difficulty that the UK courts have faced since Lipkin Gorman. Some elements and concepts of the formula (such as the concept of ‘value’ and the ‘at the plaintiff’s expense’ element) are intolerably vague and flexible, leading to unjustifiable results and implausible unpredictability.
Most troublingly, Stevens shows that a careful review of many restitutionary claims reveals them to be at odds with the most important element of Birks’ formula—the defendant’s enrichment. An examination of the courts’ reasoning over the centuries suggests that the courts have traditionally focused on the nature of a particular transaction between parties, rather than on the consequences of it. The question of whether given plaintiff was enriched, suffered a loss, or remained the same as a result of a transaction has been irrelevant to the question of finding a defendant liable in restitution. In other words, restitutionary claims appear to epitomise a law of defective transactions, rather than a law of a defendant’s enrichment. Stevens’ point is brutally simple: unjust enrichment doctrinally collapses.
Furthermore, contemporary scholars across the world have united in their opposition to unjust enrichment; the sceptics coming from such jurisdictions as Australia, New Zealand, Hong Kong, Canada, USA, Ireland, and India have expressed their concerns. The united manifesto says that a deep understanding of unjust enrichment requires an examination of its core claims from different angles. This understanding is critical for the future development of private law and private law categories, and the consideration of how these can serve the needs of society in the most just, fair, and predictable way.
Accordingly, our work Rethinking Unjust Enrichment has provided a comprehensive outlook of unjust enrichment from the following multi-layered, interdisciplinary perspectives: doctrine, history, theory, and sociology. For instance, it has been argued that the doctrinal fallacies of unjust enrichment are not limited to the UK, but pertinent to other jurisdictions as well. Historically, it has been doubted whether unjust enrichment was present in the reasoning of common law judges. The very idea that a defendant should be found liable due to their enrichment appears to be problematic through the conceptual lens of justice and fairness in private law. Finally, sociologically, it has been suggested that the remarkable success of unjust enrichment should be attributed more to the identity of the reformers rather than to the doctrinal attractiveness of the four-stage formula.
Unjust enrichment stands at a crossroad. The lessons of the recent years perhaps demonstrate two things: (1) the centrality of restitutionary claims and (2) the heated debate between supporters and opponents of the idea of unjust enrichment as a unifying basis of those claims. A productive dialogue between the two rival camps should be encouraged to contemplate together how we should understand the past, present, and future of private law.
Featured image by Ash Edmonds via Unsplash.
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