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Reinventing Clinical Legal Education: Taiwanese Adaptation of an American Model

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Legal Thoughts between the East and the West in the Multilevel Legal Order

Part of the book series: Economics, Law, and Institutions in Asia Pacific ((ELIAP))

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Abstract

The clinical legal education movement began in earnest in the United States in the 1960s in response to student demands that their legal education serve marginalized communities. As clinical legal education became a mainstream element of American legal education, the focus moved from its service-based roots to an emphasis on education, particularly practical lawyering skills and professional values for lawyers. Law clinics in the United States have developed a standard model that works to achieve these objectives within the framework of the American legal system. The global spread of clinical legal education originated in the United States and has led to clinical programs around the world. The most successful exports are tailored to the local context. It is the concept of clinical legal education that travels best, not any particular model. Taiwan’s legal educators have resisted clinical education for a very long time, and there are several practical obstacles to implementing an American-style clinic. However, some existing models that have been created within the existing system would require only slight modification to be viable options for clinical education in Taiwan. The inchoate clinical movement in Taiwan will continue moving forward by developing models that, while reflecting the core objectives and concepts of the global clinical legal education movement, are absolutely Taiwanese.

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Notes

  1. 1.

    See generally Martinez (2012).

  2. 2.

    Phan (2005), p. 136.

  3. 3.

    Wortham (2006), p. 633.

  4. 4.

    Dubin (1998), p. 1492.

  5. 5.

    Aiken and Wizner (2004), p. 998.

  6. 6.

    Id. at p. 1010.

  7. 7.

    Wilson (2004), p. 431. Claims about creating justice-minded lawyers can go too far, however. A recent review of data on the effect of participation in a law school clinic found no correlation between clinic participation and likelihood to engage in public interest after graduation. The review did, however, find “a strong relationship between clinical training experiences and public service employment” among new lawyers who came to law school with hopes of making a positive contribution to society. See Sandefur and Selbin (2009), p. 102.

  8. 8.

    Joy (2004), p. 820.

  9. 9.

    Packer and Ehrlich (1972), p. 37.

  10. 10.

    Id.

  11. 11.

    See National Archive of Clinical Legal Education (2000), p. 5.

  12. 12.

    Packer and Ehrlich (1972), p. 38.

  13. 13.

    Dubin (1998), p. 1465.

  14. 14.

    Council on Legal Education for Professional Responsibility (1969), p. 2.

  15. 15.

    Packer and Ehrlich (1972), p. 38.

  16. 16.

    Center for the Study of Applied Legal Education (2015), p. 7.

  17. 17.

    Aiken and Wizner (2004), p. 998.

  18. 18.

    Kotkin (1989), p. 191.

  19. 19.

    Id. at pp. 191–192.

  20. 20.

    Dubin (1998), p. 1466.

  21. 21.

    See Center for the Study of Applied Legal Education (2015).

  22. 22.

    Contrast this with law school clinics in Palestine, where the absence of other sources of legal assistance means law clinics feel obligated to have a more generalist practice. Qafisheh (2015), p.119.

  23. 23.

    Joy (2004), p. 822.

  24. 24.

    In Chile, several law school clinics were created in response to teacher and student demand during the early 1970s, when a progressive government was in power and social consciousness was rising in that country. See generally Wilson (2001).

  25. 25.

    Rekosh (2008), p. 87. See Ogilvy (2012) for a partial list.

  26. 26.

    Wilson (2004), p. 426.

  27. 27.

    Dowdle (2000), p. S56.

  28. 28.

    Wilson (2004), p. 429.

  29. 29.

    Hamoudi (2005), p. 112.

  30. 30.

    Bloch (2008), p. 129.

  31. 31.

    Rekosh (2008), p. 86.

  32. 32.

    Wilson (2015), pp 198–200.

  33. 33.

    Dowdle (2000), p. S72.

  34. 34.

    Abramson (2006), p. 324.

  35. 35.

    Dowdle (2000), p. S72.

  36. 36.

    Chen (2015), pp. 79–80.

  37. 37.

    See generally Lo (2006).

  38. 38.

    Id. fn. 10.

  39. 39.

    See Chang (2010) for a history of public interest law in Taiwan after martial law . More recently, when student demonstrators were arrested in large numbers after occupying the Legislative Yuan in 2013 as part of the Sunflower Movement, lawyers used a Facebook group to coordinate representation for detainees and advice and support to other protestors. Interview with Chou Yu-Shiou (2015).

  40. 40.

    See Regulations Governing Pre-service Training for Attorneys.

  41. 41.

    See Martinez (2012), pp. 360–363.

  42. 42.

    Interviews with Chen Yu-Fan, Chou Yu-Shiou, Lin Hsinyi, Lin Shih-fang, and Echo Lin (2015).

  43. 43.

    For a more expansive discussion of these structural impediments to developing Taiwanese clinical legal education, see generally Martinez (2012).

  44. 44.

    This is actually somewhat high compared to historical pass rates, which have often been much lower. In several years the passing applicants numbered in the single digits. See Lo (2006), pp. 66–67.

  45. 45.

    Id. at p. 53. “[Undergraduate students’] limited social and work experiences have been a source of struggle for many students in understanding…the abstract concepts of justice and fairness.” Pamela Phan makes this same argument about the ability of undergraduate law students in China to engage in the reflective aspect of clinical legal education. Phan (2005), p. 126.

  46. 46.

    See the Code of Civil Procedure §68 “Only an attorney may act as an advocate, except where the presiding judge permits a person who is not an attorney to act as an advocate” and the Code of Criminal Procedure §29, “A defense attorney shall be a lawyer, provided that if permission is obtained from the presiding judge at trial, a person who is not a lawyer may be retained as a defense attorney.”

  47. 47.

    Government employees in Taiwan, including most law professors, may not be attorneys. See Attorney Regulation Act, Art. 31.

  48. 48.

    See National Chengchi University College of Law (2016).

  49. 49.

    The National Chengchi University program was briefly mandatory , but the requirement was apparently dropped due to lack of enthusiasm on the part of law students who were not particularly public service minded. See Chen (2015), p. 81.

  50. 50.

    See Martinez (2012) and Chen (2015), pp. 81–84.

  51. 51.

    The only serious limitation encountered was, as expected, some hesitance on the part of judges and lawyers to allow law students to argue on behalf of their clients in court, and prosecutors, who refused to meet with the students.

  52. 52.

    Interview with Lo Shih-Shiang (2016).

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Authors and Affiliations

  1. University of New Mexico School of Law, 1117 Stanford Dr NE, MSC11 6070, Albuquerque, NM, 87131-0001, USA

    Serge A. Martinez

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  1. Serge A. Martinez
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Correspondence to Serge A. Martinez .

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Editors and Affiliations

  1. Constitutional Court, Taipei, Taiwan

    Chang-fa Lo

  2. Lee and Li, Attorneys at Law, Taipei, Taiwan

    Nigel N.T. Li

  3. College of Law, National Taiwan University, Taipei, Taiwan

    Tsai-yu Lin

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Martinez, S.A. (2016). Reinventing Clinical Legal Education: Taiwanese Adaptation of an American Model. In: Lo, Cf., Li, N., Lin, Ty. (eds) Legal Thoughts between the East and the West in the Multilevel Legal Order. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-10-1995-1_28

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  • DOI: https://doi.org/10.1007/978-981-10-1995-1_28

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