Problematizing Competence in Clinical Legal Education: What do we mean by competence and how do we assess non-skill competencies?

Abstract

The special issue of this journal is about problematizing assessment. However, in this article I want to start further back and problematize what is meant by competence. I think it is fair to say that when law clinicians speak about assessing competence they usually have in mind the assessment of skills. By contrast, I will argue that competence goes well beyond skills, at least if we understand skills in the narrow sense of technical legal skills, and includes in addition a values dimension. Moreover, if this dimension is added to the notion of skills, and clinical legal education (CLE) is expanded to include an understanding of how lawyers’ skills are used, for whom and to what end, it might help reverse the traditional and still continuing antipathy in many law schools to CLE. For those like myself, who see law clinics as more about contributing to social justice than legal education, the reluctance to embrace CLE is rooted (rightly or wrongly) in a political and moral stance. But for most academics, the antipathy - or, at best, apathy - towards CLE might be more to do with its association with skills training and the consequent assumption that it is unintellectual, unfit for the lofty heights of a liberal legal education and thus best left for the grubby business of preparing lawyers for practice.

To the extent that CLE is confined to training students in legal skills, I have some sympathy with this view, though it’s questionable whether skills training is any less intellectual than the sort of repetitive, decontextualised and atheoretical teaching of black-letter law which often passes for a liberal legal education. However, in a recent article, I joined a number of others who have argued that there is nothing necessarily anti-intellectual about a focus on practice in a liberal legal education. Thus, like Goldsmith and Bamford, I do not see engagement with practice in purely vocational or technocratic terms, but as providing opportunities for connecting the "aspirations of law students with professional ideals (justice, service, fairness) and the goals of a university-based education".

In this article, I first flesh out this argument and justify the focus on ethical as well as skills competence in clinical legal education. I then turn from problematizing the concept of competence per se to problematizing its assessment. This will be done via a critical analysis of the forms of assessment used in the clinical programme offered in the University of Strathclyde Law Clinic. These include the assessment of simulated training exercises, work on actual cases, reflective essays on aspects of law, legal ethics and law’s justice and reflective diaries on all aspects of clinical experience. Drawing on my experience with these different forms of assessment, I will consider their comparative merits in contributing to the two classic goals of clinic assessment, namely reliability – whether the scores obtained from an assessment are reproducible - and validity - whether the assessment does in fact measure what it is intended to measure. Finally, drawing on the assessment regimes in the relevant clinical classes, I will seek to provide some food for thought about alternative means of assessing clinical teaching.