老年法的实践:临床项目中实体法领域的专业化和重点案例

Donna S. Harkness
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引用次数: 0

摘要

随着临床法律教育的发展和成熟,越来越多的学者致力于讨论几乎任何临床环境都可以进一步提高法律学生对麦克雷特报告所确定的基本律师技能的理解和掌握能力的方法。尽管试图在临床教育的无数趋势中进行概括是危险的,但在方法和结构上似乎确实存在二分法,这取决于临床项目是否采用诊所提供技能培训的假设,或者诊所是否被视为专业实践模式。虽然每个客户的案例都是具体的,涉及到一些特定的实质性法律领域,但如果从技能模型的角度来看,任何案例或问题(甚至没有案例,只是一个假设)和任何实质性法律领域都可以向法律学生传授实践所需的基本律师技能。上面引用的Vladimir的演讲表明,对于有需要的人来说,他的哭声是由医生、律师还是职业高尔夫球手来回答都没有区别,因为我们都是人,都有能力回应彼此的需求。但事实上,如果受伤的人是一场车祸的受害者,他可能会得到更好的服务,至少就他的眼前需要而言。仔细阅读他的演讲就会发现,当他说其他人可能“更好”时,弗拉基米尔承认了这一点。然而,当我们处于需要采取行动的情况下,我们是唯一可以做出反应的人时,我们个人的弱点不能被我们用作不作为的借口。即使职业高尔夫球手不能亲自为受伤的受害者提供治疗,他也可以拨打911,陪在她身边,直到救援到来。类似地,大多数法律专业的学生都极度缺乏法律实务方面的知识,因此提供的任何经验都是有益的。因此,人们不需要质疑技能培训的重要性,也不需要通过接受各种病例而不坚持专业化来诋毁或贬低那些按照一般实践模式运作的项目。人们宁愿主张承认这样的全科诊所实际上是一种专业实践模式,这种模式在法律职业中可能越来越少,就像在第三方管理医疗付款人重新激活“初级保健”全科医生的概念之前,医学上的全科医生是一个垂死的物种一样。即使在日益复杂和专业化的法律职业中,这种律师显然也有一席之地。这篇论文的目的仅仅是挑战这样一种观念,即诊所是一种可替代的商品,一种模式适合所有人,如果一个法律学生在一家诊所注册,那么这个学生就经历了所有专业实践的经历和所有临床教育必须提供的体验。希望挑战诊所之间完全可互换性的假设将有助于承认特定实践的经验具有独特的价值。人们还希望法律教育将纳入这样一种观念,即在诊所的背景下提供的实体法的详细阐述将与作为传统课堂课程一部分提供的实体法课程在质量上有所不同(因此不是重复)。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Elder Law in Practice: The Case for Specialization and Focus On Substantive Law Areas in Clinical Programs
As clinical legal education has developed and matured, a growing body of scholarship has been devoted to discussing the ways in which virtually any clinical setting can further a law student’s understanding of and ability to master the essential lawyering skills identified by the MacCrate Report. Treacherous as it is to attempt to generalize among the myriad trends in clinical education, there appears to be a dichotomy in approach and structure that does exist, depending on whether a clinical program adopts the assumption that clinics provide skills training or whether clinics are conceived as professional practice models. Although every client’s case is specific and involves some particular substantive area of the law, if approached from the standpoint of the skills model, any case or issue (or even no case but a hypothetical) and any substantive area of the law will do to transmit to law students the essential lawyering skills that are needed for practice. Vladimir’s speech quoted above suggests that it will make no difference to the person in need whether his cries are answered by a doctor, a lawyer or a professional golfer, because we are all human, and all capable of responding to each other’s needs. But in point of fact, if the injured person is the victim of an auto accident, he will probably be much better served, at least with respect to his immediate needs, by the doctor. A careful reading of the speech shows that Vladimir concedes this when he states that others may be “better.” However, our individual weaknesses are not to be used by us as an excuse for inaction when we are placed in a situation where action is called for and we are the only ones available to respond. Even if the professional golfer cannot personally provide treatment to the injured victim, he can call 911 and stay with her until help arrives. By analogy, most law students are so desperately lacking with respect to knowledge of the actual practice of law that any experience provided will be beneficial. Thus, one need not dispute the importance of skills training nor denigrate or derogate those programs that operate along a general practice model by accepting a variety of cases without insisting on specialization. One would rather argue for recognition that such general practice clinics are in fact professional practice models of a sort that may be in dwindling supply in the legal profession, much as general practitioners in medicine were a dying breed before third party managed care payors reinvigorated the notion of the “primary care” generalist physician. There is clearly a place for such lawyering, even within the increasing complexity and specialization of the legal profession. The purpose of this paper is simply to challenge the notion that clinics are a fungible commodity, that one size fits all and that if a law student has enrolled in one clinic, the student has experienced all there is to experience of professional practice and all that clinical education has to offer. It is hoped that challenging the assumption of complete interchangeability among clinics will facilitate an acknowledgement that the experience of a particular practice is uniquely valuable. One also hopes that legal education will come to incorporate the notion that the detailed exposition of substantive law that is afforded within the context of a clinic will be qualitatively different from (and thus not duplicative of ) substantive law courses offered as part of the traditional classroom curriculum.
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