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 (Nicolson 2006), 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 (see eg Bradney 1995, 2003, Brownsword, 1999; Guth & Ashford, 2014).