A Manual for Environmental Law Service Learning Pedagogy in Central American and the Dominican Republic

Alezah Trigeros Julia CurtisJ.D. Candidate 2012 J.D. Candidate, 2012Indiana University University of RichmondMaurer School of Law T.C. Williams School of Law

The Purpose In September 2011, the University of Costa Rica

College of Law will host a 4 day workshop of legal education institutions’ faculty from Guatemala, Nicaragua, and the Dominican Republic.

The Manual will serve as a reference guide for the design of environmental law service learning programs that may be appropriate for these countries. Through a review of extant models, the manual will aid faculty in persuading law school deans with limited resources of the pedagogical and societal value of these programs.

What is Service Learning? “Service Learning” is a method in which

students learn and develop through active participation in thoughtfully organized service experiences that meet actual community needs, that are integrated into students academic curriculum, and provide structured time for reflection that enhance what is taught in school by extending the learning beyond the classroom and into the community.

Characteristics of Service Learning

Meet a genuine community need. Service learning should achieve an actual goal, as determined by external or community-led assessments. The actions undertaken should make positive contributions towards solving a problem.

Link the community need to classroom goals. A strong linkage between the service action and ongoing classroom instruction ensures that students improve their skills, both in and out of the classroom.

Provide opportunity for student reflection. In addition to the benefit to the community, the students should grow as individuals through deeper understanding of broader lessons, such as morality and justice.

Types of Service Learning Volunteerism: An individual provides time and resources to a

beneficiary; service is primarily determined by the recipient. Community Service: More structured volunteerism; focus

shifts from not only the service action, but also broader education in the community about the beneficiary’s needs.

Internships/externships: Student engagement in service; primary objective is to provide students with hands-on experience in the field.

Field Education: Co-curricular service opportunities external, but necessary to student education.

Clinical Education: Students provide services to beneficiaries in highly structured environment; integrated into education; outcome for client is primary focus.

Value of Service Learning Boosts students’ academic achievement Fosters a lifetime commitment to civic

participation Improves students’ social skills Prepares students to enter the workforce Gives students a sense of competency Addresses real community needs Strengthens connections between schools and

communities Improves the overall school climate

History of Service Learning in Higher Education in the U.S.

1960s: Civil Rights Movement & Peace Corps

1980s: Campus Outreach Opportunity League & National Association of Service and Conservation Corps

National Community Service Act of 1990 2000s: Private support

Serve America, W.K. Kellogg Foundation, Carnegie Corp., Ford Foundation, etc.

Legal Clinics

Legal Clinic: An educational institution that operates as a law firm. Law students work as student associates,

supervised by faculty. Student associates are responsible for real cases &

treated as functioning attorneys. Student associates are exposed to the stress of

litigation, collegial working conditions, and the broader legal community.

Clinics typically represent parties unable to secure representation any other way.

The Development of Environmental Law Clinics: In the United States

1920s: Yale law students set up volunteer legal aid clinics, without receiving credit, to assist people too poor to hire attorneys.

1960s & 70s: Clinic Explosion Concern that law schools were failing to expose and

sensitize students to professional ethics, moral, & social obligations issues inherent in the legal profession.

Focused on the major social issues of the time: poverty, civil rights, women’s rights, consumer rights, & environmental protection.

1976: University of Oregon institutes first environmental law clinic.

2010: 1/5 of law schools have an environmental law clinic.

The Development of Environmental Law Clinics: In Latin America

Legal clinics in Latin America date back to the 60s, in part influenced by the Clinic Explosion in the U.S.

Not until the 90s that clinics develop a public-interest based ideology. Focused on issues such as free speech, due process,

human rights, & treaty enforcement. Trying to connect law school to social issues.

10 years later the first environmental law clinics appear in Colombia, Costa Rica, Chile, Argentina, and Brazil.

Law Schools’ Contribution to Service Learning Clinical legal education has been the primary vehicle

for service learning within the law school curriculum.

Clinical courses mirror the essential values of the legal profession: provision of competent representation; promotion of justice, fairness, and morality; continuing improvement of the profession; and professional self-development.

Law schools also provide a unique laboratory for social justice, providing a place where undesirable clients and untested strategies can converge.

Models of Environmental Law Learning: Simulation Courses vs. Live-Client Clinics

Simulation Courses: Simulates the experience of live practice through the use of experiential and public based case simulations; students realistically address real-life scenarios, in an insulated environment.

PROs: Easy to set up Require few resources Provide a manageable and predictable learning environment for students

CONs: No contribution to the community Students miss opportunity to grow through service and uncertainty

Live-client Clinic: Students fully engage in the legal system to solve an actual problem for a real client.

Models of Environmental Law Clinics: Nature of Clinic

Litigation Non-Litigation (Transactional) Dispute Resolution Judicial Community Organizing Legislative Activity Ombudsman/Informal Advocacy Interdisciplinary Hybrid

Models of Environmental Law Clinics: Degree of Representation

Full representation: Clinic allows students to manage entire cases through to completion, as they would in law firm.

Partial representation: Students provide initial advice, assess cases, and help when possible, but for complicated cases, refer the client to another firm or agency.

Models of Environmental Law Clinics: Structure of Clinics

In-house Clinic External Clinic Internship Practicum Externship Certificate Program Single Client Clinic Hybrid

Models of Environmental Law Clinics: Academic Status

Curricular: Students work for a grade and for credit hours; same requirements as a course.

Co-curricular: Follows the same overarching principles but without the full requirements of a course; complements, but is not fully part of the curriculum.

Extra-curricular: Entirely voluntary; falling outside of the realm of normal coursework.

Necessary Infrastructure for Environmental Clinics

Internal and External Community Interested students and potential clients

Logistics and Administration Staffing, location

Internal Policies and Procedures Curriculum review

Potential Liability Written agreements with clients

Pedagogy: Strategies of Instruction

Skills Development Exercises & teaching tools Actual case management

Reflective Learning Written work product Student interviews

Classroom Teaching Seminar component

Collaborative or Interdisciplinary Projects

Potential Problems: Funding

Lack of monetary funds is the major challenge facing clinical legal education generally.

Because of the low student-to-faculty ratio, legal clinics are extremely expensive for law schools compared to large lecture-style courses.

Funding Options Hard Money: Financing directly from the university;

difficult to obtain due to budget restraints. Soft Money: Outside financing such as grants; difficult to

obtain & unreliable. Runs additional risk of subjecting clinic to outside interference

from donors.

Seed Money: University provides funding to start & in time the clinic will (hopefully) become self-sufficient.

Attorney’s Fees: Very difficult to secure; not recoverable until end of litigation; sometimes require a separate action to collect. Clinics that rely on attorney’s fees may go unfunded for a

significant period of time.

Potential Problems: Legal Formalism & Curricular Rigidity Legal formalism: The treatment of law as a

science with the purpose of legal education being to instruct students in the elements of this science. The aim of education is not skills development

but exposure to legal theory and doctrine. Curricular rigidity: Curriculum at civil law

universities tends to be limited to doctrinal offerings; circular change and addition of new courses can be difficult.

Legal Formalism & Curricular Rigidity

Obstacles: Political opposition Lack of political will and financial wherewithal to hire new

professors or redistribute existing professors’ workloads Excessive curricular rigidity makes the procedure for creating

clinics extremely slow and cumbersome Lack of student interest

Combative Strategies: Create publications and organize academic events to discuss the

new approaches to legal education and the benefits of law clinics. Promote among students the importance of xperiential learning

offered by clinical legal education. Create or strengthen links with those that work in established

clinics.

Potential Problems: Political Interference

Clinics have a responsibility to promote access to justice by representing poor and unpopular clients and causes.

The U.S. experience has shown that politicians, business interests, and even university officials sometimes attack law school clinics for their choices of clients and cases.

Political Interference: Why? Clinics bringing suits that wouldn't be brought at all

if not for the clinic. Environmental law cases by their nature tend to

jeopardize economic interests. Seek to prevent government or industry from

carrying out land use, industrial development, and manufacturing projects.

Outside parties, such as government or industry, want to control what cases environmental law clinics take on.

Political Interference: How? Funding

Legislatures restrict clinical practice by conditioning the university’s funding on the clinic not bringing suits against the state.

Private defendants with deep pockets back initiatives to withhold clinic funding, limit the types of cases clinics are permitted to take, or establish external boards to chose clinic cases.

Benefactors, alumni, and boards of trustees can attempt to sway clinic politics with donations or put financial pressure on the law school to eliminate clinics they object to.

Alumni, as potential employers of graduating law students, may dissuade students from participating in a clinic that they feel an alumnus may disapprove of.

Political Interference: How?

SLAPP Suits A bullying tool used by defendants’ lawyers in

environmental suits to intimidate plaintiffs from pursuing their claims.

Counter environmental suits with common law tort actions (ex: defamation).

Most SLAPP suits are dismissed before trial—goal is not legal victory, but intimidation.

Takes advantage of the comparative economic insecurity of the plaintiffs, who, facing potentially ruinous legal bills and risk of liability, drop their suits in exchange for the defendant dropping their SLAPP suit.

Political Interference: How?

Legislation Cut off state funding to law schools or clinics Create faculty committees to select cases for the

clinics Prevent clinics from filing suits against state or

political subdivisions Prevent law professors from assisting in litigation

against state Ban courses, clinics, or classes in which students

assist or participate in any suit against a state

Political Interference: Legacy In some cases, legislative or university-imposed restrictions have

foreclosed clinics from representing certain clients, advancing certain types of legal claims, or advancing claims against certain parties.

More commonly, clinics self-impose such restrictions out of fear that pursuing these cases could threaten the clinic’s continued existence. Careful about what cases they accept Try to avoid “high profile” cases

Clinics that intentionally take challenging or controversial cases to expose students to more complex legal issues run a heightened risk of being targeted for political interference.

Ultimately the greatest victims of political interference are the potential clients whose rights are lost due to lack of legal representation.

Political Interference: Preventative Measures (Lessons from the U.S. Experience)

Important to have support for your clinic in the academic, legal, and greater community prior to political interference: Cultivate support among non-clinical faculty and law school deans

by explaining what the clinic does and how cases are selected based on pedagogical values.

Cultivate contacts with local media. Explain to them the important work that the clinic is doing.

In the event of political interference: Resist: The goal of interference is to intimidate the clinic into

avoiding cases against certain businesses or government entities. When a clinic drops or refuses to take an otherwise good case out of fear, the clinic is succumbs to intimidation.

Point out the interference: Use the media to characterize the conflict as one in which powerful business or government entities are seeking to deny indigent clients access to the courts.

Pedagogical Value of Clinics Research findings show that service-learning benefits

students by boosting students' academic achievement, fostering a lifetime commitment to civic participation, improving social skills, and preparing students to enter the workforce.

Service-learning also gives students a sense of competency; they see themselves as active contributors rather than passive recipients.

Through addressing real community needs, and building stronger connections between schools and communities, and students grow as individuals which improves the overall school climate.

Service learning provides a mechanism through which students' personal and social growth is tightly interwoven into their academic and cognitive development, for the greater benefit of the community at large.

Case Studies: Success Stories and Lessons Learned

Costa Rica: The University of Costa Rica Environmental Law Clinic (Consultorio Juridico Ambiental)

Argentina: The Center for Human Rights Law and the Environment (CEDHA)

Brazil: Universidade Federal de Mato Grosso Universidade Federal do Para Universidade do Estado do Amazonas

United States: Tulane Environmental Law Clinic