It is only a few days before Christmas–and, as I write this, the first night of Channukah–but my thoughts turn not to the holidays but rather to Best Practices. As David Segal continues to write his maddening articles in the NYT on legal education–the most recent, this past Sunday, on how ABA accreditation causes law schools to be overly costly and cookie-cutter in form and content–it is well to recall the basic underpinnings of the CLEA Best Practices book, and its focus on thoughtful curricular planning and learning outcomes. Excessive student debt, less-than-full transparency in law school statistics and practices, and a failure to focus on preparing students to practice law are valid criticisms, and Segal is right to make them, but we all know there is more to legal education than the narrow consumerist focus that Segal (who also writes the consumer complaint-oriented The Haggler column in the Times’s Sunday Business Section ) brings to bear.
I will have more to say about those specific questions in a subsequent post, but for now I wanted to mention that Best Practices has spread its wings and reached China. There is a now an authorized Chinese version of the book (alas, I can’t attest from personal knowledge to the accuracy of the translation, as my Mandarin consists of only a few words) that has been produced in conjunction with some ongoing workshops on clinical education in China in which US law professors from University of Pacific-McGeorge School of Law and American University Washington College of Law have been involved for the last 4-5 years. In its current focus, Brian Landsberg and Dorothy Landsberg (director of clinical programs) at McGeorge are spearheading an effort by Chinese legal educators to develop a version of Best Practices that will work in the Chinese legal (and legal educational) context. I went with Brian and Dorothy to Beijing in September to assist the group with organizing the project, and Brian and Dorothy will be returning there in January to provide feedback on the draft chapters. (Frank Bloch has been working with the group on a related project, and my colleague Elliott Milstein has been deeply involved with the China project from the beginning; other McGeorge, WCL and other faculty have been involved as well.)
As others who have done international clinical work can attest, the translation, literally and figuratively, of clinical concepts (including those in Best Practices) to other legal systems can be quite challenging. During the first workshop in 2006, for example, several of our Chinese colleagues resisted our efforts to articulate a client-centered approach to lawyering, stating that such an approach could not work in China. When we pressed our colleagues on this point, they said that in China if the lawyer deferred to the client (as they understood client-centeredness to require) clients would importune their lawyers to engage in illegal actions. We had not emphasized in our discussion of the concept of client-centeredness that it assumed that the client’s means and ends were legal and legitimate within the system. Absent that qualification, our colleagues heard our discussion of the concept as promoting lawlessnesss (ironic in a program sponsored by the US AID Rule of Law Project). With the clarification, our colleagues thought that such an approach could work, though, as we all agreed, the nature of the counseling relationship and the choices actually available to clients and lawyers might well look different from how they would look in the U.S.
We had other moments of language and cultural miscommunication. For example, it took us some time to realize that our use of the term “advocacy”–meant to convey trial-related skills of direct and cross-examination, among other things–was confusing to our Chinese colleagues since the term was translated as “criminal defense.” Because we came to know our colleagues well–the first three years of the project consisted of three-week workshops in China, and some of the first group of attendees became co-teachers in our subsequent trainings–we were able to figure out which concepts traveled well and which did not. The result, we hope, will be the development of a distinctively Chinese form of clinical legal education whose value, we hope, will stand the test of time.
In the workshop this fall, we did come upon one other language/conceptual roadblock, which is relevant to Best Practices. The Chinese group was concerned about use of the term “Best Practices.” Our Chinese colleagues thought that if they entitled their book “Best Practices” it would create problems for them, because the implication would be that if anyone did not adopt their approach they would by definition be doing something that was less than the best. The implied criticism of others would be too sharp, in their eyes, and would inevitably lead to hurt feelings and perhaps more.
Note that this criticism was not the same as that which my AU colleague Ira Robbins had leveled against CLEA’s Best Practices project (to which Roy Stuckey responded in a colloquy published in the Clinical Law Review)–that we were wrong to call our book Best Practices because we could not prove the practices we advocated were the best, as opposed to, say, good or recommended practices. Indeed, the Chinese critique presumed that use of Best Practices did in fact mean that they would be saying that they were proposing what was best, and that others would react negatively to this assertion.
Indeed, before we arrived in Beijing in September we had thought there might be some concern with the term Best Practices, and had proposed the term “Effective Practices” as one that might be less controversial. That approach seemed to resonate with our Chinese colleagues in September, though it remains to be seen what title the group will adopt for the final product. It could be argued that “Effective Practices” implies that those who do not adopt the suggested approach are promulgating Ineffective Practices, which would be just as much of a an apparent dismissal as not using what some thought was the best approach. But I suppose that since the book is not entitled “The Most Effective” practices, the term “Effective Practices” may seem to suggest a wider range of potentially acceptable approaches.
Of course, the term Best Practices as we use it in the CLEA book, and as many in the US have used it in different contexts (especially in social sciences or in regulatory environments) doesn’t really mean “best” in the sense of provably better than everything else. (I disagree with Prof. Robbins’s assumption to the contrary.) Rather, the term is meant to suggest something like “here is our best thinking, at this time, about the particular matter.” It is more than what might be minimally required, and, indeed, it is not required at all, but rather exists as a source of information and guidance that people may find useful and therefore may choose to adopt for their own purposes.
In the final analysis, the linguistic vagaries of the term Best Practices are less interesting than the recognition that thoughtful legal educators in China, and perhaps elsewhere around the world, may come to realize the value of the concepts articulated in the CLEA Best Practices book. If the book generates dialogue and self-conscious examination of our pedagogical goals, it will have gone a long way toward achieving the goals that many of us have had for this project.
December 20, 2011