Document Type
Article
Abstract
The prevailing commitment in clinical law programs like the Intensive Program in Poverty Law at Osgoode Hall Law School is to an engaged-contextualism, which serves to see law in action. It has provided participating students with some insight into the everyday life of ordinary people, approaching—but not necessarily fully perceptive to—certain socio-legal perspectives. But what does clinical legal education vision and envision? How precisely do clinics see? And from what source or place is that visual authority derived? Here, by attending to the prevailing “pedagogy of seeing” in contemporary poverty law clinical practice, I engage with teaching, learning, and praxis in clinical legal knowledge production. I contend that engaged-contextualism troublingly adheres to a pedagogy of seeing that is indebted to the very authority it should strive to dismantle: state power. With a view to the capitalist state as a nationally-inscribed territorial ordering authority, evidenced through settler and imperialist articulations, I undertake a speculative re-envisioning of knowledge production in and about poverty law. The aim is to encourage an alternative pedagogy motivated by an emancipatory praxis. It is a praxis not of saving poverty law but of constant struggle against sovereign state authority rooted in the creative capacities and self-organizing activities—and ultimately the “freedom dreams”—of poor and otherwise oppressed communities; or in a phrase, the reflexive self-authorization of social movement. The perceptible challenge of all legal education, clinical or otherwise, is ultimately not to see like the settler and imperialist, capitalist state but to look through or beyond it—through the persistent and reckless reproduction of poverty and marginalization as a basis of social order.
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Citation Information
Smith, Adrian A..
"Seeing Like a Clinic."
Osgoode Hall Law Journal
59.1 (2022)
: 37-76.
DOI: https://doi.org/10.60082/2817-5069.3737
https://digitalcommons.osgoode.yorku.ca/ohlj/vol59/iss1/3
References
1. Hannah Frank, Frame by Frame: A Materialist Aesthetics of Animated Cartoons (University of California Press, 2019) at 156. I came across Frank's text in the context of research in a different context-that of a materialist aesthetics of international law. While the framing initially drew me in, the painstaking and wonderfully inventive method of the investigation proved intriguing, and tragically so given Frank's premature death. At the risk of taking Frank's framing out of context, I provide it here as an indication of its lasting impression on my thinking, perhaps well beyond the particular context in which Frank intended. https://doi.org/10.1525/9780520972773
2. In 1983, the influential Arthurs Report noted that "clinical legal education has not yet become a significant element in Canadian law schools." Consultative Group on Research and Education in Law, Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada (Minister of Supply and Services, 1983) at 51 [Arthurs Report]. Since that time, clinical programs not only proliferated but also served as a precursor to the experiential turn within legal education. The history of clinical legal education in Canada is documented in numerous sources. See e.g. Sarah Buhler, Sarah Marsden & Gemma Smyth, Clinical Law: Practice, Theory, and Social Justice Advocacy (Emond Montgomery, 2016); James C Hathaway, "Clinical Legal Education" (1987) 25 Osgoode Hall LJ 239. For recent accounts, see Deborah J Cantrell, "Are Clinics a Magic Bullet" (2014) 51 Alta L Rev 831 (addressing demands for "practice ready" law graduates which are imposed on legal education generally and clinical education specifically); Lorne Sossin, "Experience the Future of Legal Education" (2014) 51 Alta L Rev 849; Harry W Arthurs, "Law and Learning in an Era of Globalization" (2009) 10 German LJ 629.
3. Buhler, Marsden & Smyth, supra note 2 at 2-3.
4. I have borrowed the term from Janet Zandy, a stalwart professor of working-class studies in the United States. See "Photography and Writing: A Pedagogy of Seeing" (2008) 41 Exposure: J Society for Photographic Education 26. Just as Zandy invites readers to think "deeply...about how photographs work in the world and about the worlds inside photographs," this piece issues a similar invitation for thinkers of clinical legal education (ibid at 26). See also John Berger, Ways of Seeing (Penguin Group, 1972).
5. Others have stressed "the visualization of law as an object of contemplation" in socio-legal history, legal philosophy, criminal law, legal geography, as well as at the intersection of law and "race" in the highly specialized inquiry of legal semiotics and in other ways. See e.g. Christopher Tomlins, "After Critical Legal History: Scope, Scale, Structure" (2012) 8 Annual Rev L Social Science 31 at 32; Richard K Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques and Entanglements (Routledge, 2011); Rodney GS Carter, "'Ocular Proof': Photographs as Legal Evidence" (2010) 69 Archivaria 23; Irus Braverman, "Hidden in Plain View: Legal Geography From A Visual Perspective" (2011) 7 L Culture & Humanities 173; Osagie K Obasogie, "Do Blind People See Race? Social, Legal, and Theoretical Considerations" (2010) 44 Law & Soc'y Rev 585; Peter Goodrich, "Specters of Law: Why the History of the Legal Spectacle Has Not Been Written" (2011) 1 UC Irvine L Rev 773; Neal Feigenson, "The Visual in Law: Some Problems for Legal Theory" (2011) 10 L Culture & Humanities 1.
6. The Intensive Program in Poverty Law places twenty students during each of the fall and winter semesters at PCLS. The Program is a full-time, full-term commitment that promises to provide an enriching and challenging experience. Students are assigned to one of four divisions: Housing Rights; Workers' Rights; Social Assistance, Violence, and Health (SAVAH); or Immigration. As the front-line faces of the clinic, students conduct initial intake and have hands-on responsibility for developing cases and legal arguments, carrying a steady caseload of active files. Student caseworkers work under the tutelage of supervisory staff, including a lawyer for each divisional grouping, and community legal workers (or rights advisers), and administrative support workers, to provide legal information, advice, and representation to workers, newcomers, tenants, and social assistance claimants and recipients.
7. PCLS pursues a three-fold mandate: to provide legal services to low-income individuals; to build social movements to reduce poverty and fight for equality; and to train law students in "social justice" or "community" lawyering and poverty law-integrating strategies designed to redress individual legal problems with those designed to facilitate broader systemic change. There are wide-ranging perspectives on the efficacy of the mandate, and especially on how well law students are integrated into systemic advocacy work. My aim here is not to downplay these contrasting perspectives but instead to encourage an alternative normative account that contests the very basis of the individual work-systemic work distinction, how it is drawn, and what work is done in its name. Ultimately, mine is an account rooted in support of the collective self-activity of ordinary people in emancipatory social movements, contesting and clearing obstacles imposed to that activity. To qualify as anti-poverty work it necessarily must have a "systemic" character, understood as that which does not permit the structuring of the systemic outside of the individual nor the individual outside of the systemic.
8. A roster of Osgoode Hall faculty colleagues--currently Amar Bhatia, Fay Faraday, Janet Mosher, and Sean Rehaag-rotate as Academic Director on a two or three-year mandate(though the first two are expected to serve their first terms in the coming years). It is worth noting that, while the article relies on personal observation coupled with the insightsof some current and past roster members who have written about the program, it is not meant to suggest the adoption of a universally singular approach by directors. For some discussion of program tensions over time, see Shelley AM Gavigan, "Twenty-Five Years of Dynamic Tension: The Parkdale Community Legal Services Experience" (1997) 35 Osgoode Hall LJ 443. https://doi.org/10.60082/2817-5069.1575
9. This is the language employed by some academic roster colleagues.
10. See Alyshah Hasham, "This Parkdale legal clinic has helped tenants fight landlords for nearly 50 years. Now it's the one being evicted," Toronto Star (7 December 2018), online: https://www.thestar.com/news/gta/this-parkdale-legal-clinic-has-helped-tenants-fight-landlords-for-nearly-50-years-now-it/article_50e1a9d6-f612-5331-8c97-c3904c3d6545.html.
11. The funding cuts were ushered in during 2019. Faced with these cuts, the PCLS Board of Directors--which currently includes the Academic Director as a voting member--took the difficult decision of carrying out staff worker reductions. Contrast this with statements made in July by Attorney General Doug Downey, who called the cuts an opportunity to "make legal aid sustainable." In reference to PCLS, Downey asserted the following: "Parkdale has received funding at a higher level than other areas of the province with significant, and in some cases greater, low-income populations. Even with the changes to Parkdale's funding, it is still one of the highest funded clinics in the GTA per low-income resident....While some lawyers and special-interest groups may be critical of the renewed era of accountability at Legal Aid Ontario, it is necessary." See "Job cuts coming to local legal clinic," City News (12 July 2019) at 00h:01m:49s, online (video): https://www.youtube.com/watch?v=VVvwt7NVKOk&feature=youtu.be&themeRefresh=1. Critics forcefully disagreed, viewing the move as a continuation of the neoliberal attack on poor and other marginalized communities. For critical accounts, see e.g. Shiva Bakhtiary, "Misguided cuts to Legal Aid Ontario's funding," The Lawyer's Daily (24 June 2019), online: http://www.thelawyersdaily.ca/articles/13270/misguided-cuts-to-legal-aid-ontario-s-funding-shiva-bakhtiary; Samantha Beattie & Emma Paling, "Legal Aid Cuts Designed to Muzzle Ford's Critics, Clinics Say," The Huffington Post (12 June 2019), online: https://www.huffpost.com/archive/ca/entry/legal-aid-ontario-slashes-toronto-budgets_ca_5d00f6b7e4b07551039acbb3; Jacques Gallant, "Sweeping Cuts to Legal Clinics Called a 'Directed Attack' on Toronto and Organizations Challenging Ford Government," The Toronto Star (12 June 2019), online: https://www.thestar.com/news/gta/sweeping-cuts-to-legal-clinics-called-a-directed-attack-on-toronto-and-organizations-challenging-ford/article_1bb1b71a-e919-5325-9307-8e440ce4057d.html [Gallant, "Sweeping Cuts"]; Emily Mathieu, "Toronto's most vulnerable residents will bear the cost of legal clinic cuts, advocates say," Toronto Star (12 June 2019), online: https://www.thestar.com/news/gta/toronto-s-most-vulnerable-residents-will-bear-the-cost-of-legal-clinic-cuts-advocates-say/article_55dc3337-f558-5c18-85b9-592113db345c.html; Jessica Owen, "Provincial review could jeopardize legal aid clinics: official," Barrie Today (24 June 2019), online: https://www.barrietoday.com/local-news/provincial-review-could-jeopardize-legal-aid-clinics-official-1520878; Chris Ramsaroop, "Cuts to legal clinics a sinister plan to harm the most vulnerable," Toronto Star (29 July 2019), online: https://www.thestar.com/opinion/contributors/cuts-to-legal-clinics-a-sinister-plan-to-harm-the-most-vulnerable/article_235e4e03-55ec-5d54-94b6-eb17643d2d88.html; Toronto Star Editorial Board, "Ontario's New Attorney General Should Reverse Cuts to Legal Aid," Toronto Star (23 June 2019), online www.thestar.com/opinion/editorials/2019/06/23/ontarios-new-attorney-general-should-reverse-cuts-to-legal-aid.html. On forced changes to clinical case work, see Nicholas Keung, "Legal Aid Stops Taking New Immigration, Refugee Cases," Toronto Star (15 April 2019), online: www.thestar.com/news/gta/2019/04/15/legal-aid-stops-taking-new-immigration-refugee-cases.html.
12. See Ontario, Legislative Assembly, Official Report of Debates (Hansard), 42-1, No 143 (19 February 2020). The reforms were criticized in a report issued by a group of Ontario law professors, of which I am a signatory. See e.g. Mosher et al, "Neither Smarter nor Stronger: Bill 161 is a Step Backwards for Access to Justice and Community-Based Legal Services in Ontario" (9 March 2020), online: https://osgoode.yorku.ca/wp-content/uploads/2020/03/Bill-161-Brief-March-6-1.pdf; Jacques Gallant, "Ford government's legal aid plan will have 'profoundly negative' effect on low-income Ontarians, law professors say," Toronto Star (10 March 2020), online: https://www.thestar.com/news/gta/ford-government-s-legal-aid-plan-will-have-profoundly-negative-effect-on-low-income-ontarians/article_6efedf8b-1f5c-5b50-ab70-03ca81ed0259.html [Gallant, "Ford government"]. This article has been conceived in the midst of the modernization exercise. The explicit reference to modernization would no doubt bring pause to critical readers familiar with sociology and development studies, including law and development, where it has had a pervasive presence. Associated with the likes of Émile Durkheim, Max Weber, and later Walter Rostow, among countless others, modernization theory upholds foundational binary and hierarchical distinctions in Western or liberal political and legal knowledge production beginning with modern versus traditional and extending to developed versus underdeveloped, rich versus poor, and more. Rostow's work is particularly telling in that it identifies five stages of economic growth or development through which modern society is said to emerge, presenting a linear and regressive developmentalism meant to justify status quo global power relations. Its political significance, evident in the subtitle of his 1960 text The Stages of Economic Growth: A Non-Communist Manifesto, articulated a justificatory program to undermine the then growing momentum of colonial independence movements and their search for alternatives to orthodox capitalist development. It faced intense criticism within development studies from world systems and dependency theories, both of which sought to bring the "Third World" into the historical structure of global relations. In other words, critical suspicion of political reform agendas carried out under the modernization mantra is deep-seated and not misplaced. See Walter Rostow, The Stages of Economic Growth: A Non-Communist Manifesto (Cambridge University Press, 1960).
13. According to then Legal Aid Ontario Vice President of Clinic Law Services Jayne Mallin, "This was a really difficult exercise, because we recognize that there's value in systemic work because it creates efficiencies, we recognize there's value....But we also wanted to ensure that if we've got to take the money from somewhere, we did not want to take it from clinics providing direct client services in the community." See Mathieu, supra note 11. Here, then, the individual client-systemic work distinction forms a basis for carrying out the funding cuts and wider modernization exercise. For an alternative approach, see Gemma Smyth, "Evaluating Systemic Advocacy: A Primer & Tools for Evaluating Systemic Advocacy in Ontario's Legal Clinics" (Report to the Law Foundation of Ontario, 2017), online (pdf): University of Windsor http://www.scholar.uwindsor.ca/cgi/viewcontent.cgi?article=1049&context=lawpub.
14. Nicholas Mirzoeff, The Right to Look: A Counterhistory of Visuality (Duke University Press, 2011). For an alternative account of visuality as a matrix of cultural practices and values, see Hal Foster, Vision and Visuality (Bay Press, 1988). https://doi.org/10.1515/9780822393726
15. While space does not permit a comprehensive development of Canadian state imperialism, it would be prudent to sketch the general contours of the claim. It develops from an understanding of the new imperialism or what Ellen Wood once termed an "empire of capital" emergent from about the mid-twentieth century onwards. See Empire of Capital (Verso, 2003). It is the idea that today's powerful states rely on global economic hegemony somewhat distinct from the imperial projects of European empires rooted in colonial rule. Though Wood's account is framed solely in terms of the US capitalist empire, the insights are generalizable. The continuing if not deepening need of global capital is for "a closely regulated and predictable social, political and legal order" (ibid at xi), which occurs through an "orderly" global system of multiple territorial states. The empire of capital, as Wood explains, is shaped by "the complex and contradictory relationship between capital's expansive economic power and the more limited reach of the extra-economic force that sustains it," a force mobilized through the sovereign state. See ibid at 5-6. States like Canada leverage economic hegemony, including to continue the subordination of other states (primarily of the global South), in service of global capitalist accumulation. Canada's ongoing settler-colonial dislocation and dispossession of Indigenous peoples and communal authority "at home," as Todd Gordon astutely shows, provides the ongoing basis for its imperialist excursions abroad. See Todd Gordon, Imperialist Canada (Arbeiter Ring, 2010). And as Gordon and Jeffrey Webber forcefully demonstrate, these violent extractivist excursions occur to devastating social and ecological effect throughout-and no doubt beyond-Latin America. See Todd Gordon & Jeffery R Webber, Blood of Extraction: Canadian Imperialism in Latin America (Fernwood, 2016). These deeply disturbing dynamics begin to explain how peoples of the world find themselves displaced and slotted into circuits of migration extending into neighbourhoods like south Parkdale. And yet, Canada is held out as a beacon of benevolence in global affairs, not as a purveyor or perpetrator of the world's problems. Indeed, what Anton Allahar and James Côté noted over two decades ago remains true today, Canada is a "nation in denial" over its colonial roots and racism and the class-based nature of its profoundly unequal society, and I would add over its capitalist imperialist interventions. See Richer and Poorer: The Structure of Inequality in Canada (James Lorimer & Company, 1998). For other useful works of interest, see e.g. Sherene Razack, Dark Threats and White Knights: The Somalia Affair, Peacekeeping and the New Imperialism (University of Toronto Press, 2004); Jerome Klassen & Greg Albo, eds, Empire's Ally: Canada and the War in Afghanistan (University of Toronto Press, 2013); Yves Engler & Anthony Fenton, Canada In Haiti: Waging War On the Poor Majority (Red, 2005). For an account pertaining to Caribbean migrant farm labour in Canada see Adrian A Smith, "'Troubling Project Canada': The Caribbean and the Making of 'Unfree Migrant Labour'" (2015) 40 Can J Latin American & Caribbean Studies 274.
16. "Marxism and Anti-Racism in Theory and Practice: Reflections and Interpretations" in Abigail B Bakan & Enakshi Dua, eds, Theorizing Anti-Racism: Linkages in Marxism and Critical Race Theories (University of Toronto Press, 2014) 127 at 140. For an influential early social movement account of radical prefigurative praxis, see Carl Boggs, "Marxism, Prefigurative Communism, and the Problem of Workers' Control" (1977) 11 Radical America 99 at 100. By "prefigurative," Boggs meant "the embodiment, within the ongoing political practice of a movement, of those forms of social relations, decision-making, culture, and human experience that are the ultimate goal." See ibid. Simply stated, a radical prefigurative politic refuses the use of certain liberal distinctions-between individual and systemic, means and ends, real(ism) and idea(ism), present and future, and so on-which subordinate emancipatory commitments to status quo or incremental ones. Motivated not by tinkering and other reformist measures, it is a commitment to building another world informed by our daily practices and agendas. It is apparent in a range of contexts. For instance, in a rhetorical exchange found in the ground-breaking text, Policing the Crisis, Stuart Hall and interlocutors, anticipating the charge that their proposals were idealistic and not suitable for the present, stated: "if someone says to us: 'Yes, but given the present conditions, what are we to do now ?', we can only reply 'Do something about the 'present conditions.'" Referencing Oscar Wilde, they go on to argue that "it is an outrage for reformers to spend time asking what can be done to ease the lot of the poor, or to make the poor bear their conditions with greater dignity, when the only remedy is to abolish the condition of poverty itself." See Stuart Hall et al, Policing the Crisis: Mugging, the State, and Law and Order (London & Basingstoke, 1978) at 4. For differing accounts and applications of radical prefigurative politics in and around law, see Robert Knox, "Strategy and Tactics" (2010) 21 FYBIL 193; Irina Ceric, Lawyering From Below: Activist Legal Support In Contemporary Canada and the US (PhD Dissertation, Osgoode Hall Law School, York University, 2020) [unpublished]; Michael Blazer, "The Community Legal Clinic Movement In Ontario: Practice and Theory, Means and Ends" (1991) 7 J L & Soc Pol'y 49 at 52; Davina Cooper, "Prefiguring the State" (2017) 49 Antipode 335.
17. I concur with Pierre Bourdieu's contention that "to endeavour to think the state is to risk either taking over, or being taken over by, the thought of the state." Pierre Bourdieu, "Rethinking the State: Genesis and Structure of the Bureaucratic Field" in George Steinmetz ed, State/Culture: State-Formation after the Cultural Turn (Cornell University Press, 1999) at 53, cited in Mark Neocleous, Imagining the State (Open University Press, 2003) at 6 [Neocleous, Imagining the State]. As such, I follow Mark Neocleous who, in venturing to "think beyond the instructions and parameters" of the state, writes "against" and "outside the statist political imaginary" (ibid).
18. On social movement learning, see e.g. Aziz Choudry, Learning Activism: The Intellectual Life of Contemporary Social Movements (University of Toronto Press, 2015); Sara Carpenter & Shahrzad Mojab, Revolutionary Learning: Marxism, Feminism and Knowledge (Pluto Press, 2017); Paula Allman, Revolutionary Social Transformation: Democratic Hopes, Political Possibilities and Critical Education (Bergin & Garvey, 1999). For a rich account of Indigenous sovereignty, see Glen Coulthard, Red Skin, White Mask: Rejecting the Colonial Politics of Recognition (University of Minnesota Press, 2014). On poor peoples' movements, see e.g. Frances Fox Piven & Richard A Cloward, Regulating the Poor: the Functions of Public Welfare, 2nd ed (Vintage Books, 1993); Bryan D Palmer & Gaétan Héroux, Toronto's Poor: A Rebellious History (Between the Lines, 2016).
19. Roscoe Pound, "Law in Books and Law in Action" (1910) 44 Am L Rev 12. Pound may have coined the terminology, but it was not until the emergence of legal realism that they found meaning, a meaning further developed by early socio-legal or what is also termed law and society scholarship. For a recent overview, see Jon B Gould & Scott Barclay, "Mind the Gap: The Place of Gap Studies in Sociolegal Scholarship" (2012) 8 Annual Rev L & Social Science 323. https://doi.org/10.1146/annurev-lawsocsci-102811-173833
20. The framing belongs to film scholar Karl Schoonover. See Karl Schoonover, "Wastrels of Time: Slow Cinema's Labouring Body, the Political Spectator, and the Queer" (2012) 53 Framework: J Cinema & Media 65. Credit to Hannah Frank's work for the initial reference. My use of the term "vision" breaks from that of Hal Foster's, which attaches a bio-physiological understanding associated with the human eye and corresponding visual system. See Foster, supra note 14.
21. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press, 1998). The engagement with Scott's work pertains to its general method, and in particular, my account takes up the invitation to reimagine the method through a turn to the visual. It is not an attempt to adopt Scott's substantive claims. For one, the insights around visuality in colonial histories are not fully accounted for in Scott's framing.
22. By orthodox, I am referring to a whole host of approaches and perspectives that contest the need for rich and nuanced social contextualization as a necessary premise of legal education. In the contemporary period in which "social justice" figures prominently, these accounts adhere to a thin or shallow contextualization in which "law" and "society" are sharply delineated and jurists (including prospective ones) remain at the pinnacle of the schema.
23. As it unfolds in relation to non-clinical legal educational orthodoxy, clinical law teaching and practice offer critical insight into that orthodoxy but has had some difficulty escaping it--and it must come to grips with its own--in this latter respect. In other words, clinical education appears to have an orthodoxy too: engaged-contextualism.
24. See Harry J Glasbeek & Reuben A Hasson, "Some Reflections on Canadian Legal Education" (1987) 50 Mod L Rev 777. https://doi.org/10.1111/j.1468-2230.1987.tb01738.x
25. For a relatively recent account from a highly influential commentator in Canada, see Harry W Arthurs, "The Future of Law School: Three Visions and a Prediction" (2014) 51 Alta https://doi.org/10.29173/alr33 L Rev 705. For a US-based legal realist account that continues to carry a certain scholarly importance, see Karl N Llewellyn, The Bramble Bush: On our Law and its Study (Quid Pro Books, 2012). The critiques are voluminous but for an especially compelling one, see Patricia J Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Harvard University Press, 1991).
26. "Practicing Law for Poor People" (1970) 79 Yale LJ 1049 [Wexler, "Practicing"]. https://doi.org/10.2307/795211 In a follow-up reflection nearly four decades later, Wexler credits labour organizer and professor, Tim Sampson, with teaching him the lessons conveyed in the article. See Steve Wexler, "Some Further Reflections on Poor People and Law" (2007) 40 UBC L Rev 859. See also Gerald P Lopez, Rebellious Lawyering: One Chicano's Vision of Progressive Legal Practice (Westview Press, 1992).
27. A modest summation of the clinic-based critique of legal education suggests key deficiencies. Legal educational orthodoxy operates within what revolutionary educator Paulo Freire notably termed the "banking concept of education." See Paulo Freire, Pedagogy of the Oppressed (Continuum, 2005), ch 2. Such a model enforces hierarchies of knowledge production in which knowledge is seen to emanate from a singular interpretive authority, the professor, radiating out--or more properly down--to students. The classroom relations are organized along the same hierarchical and dualistic logic of the solicitor-client relationship and courtroom encounter where, cast as all-knowing deities, the jurist stands at the pinnacle.
28. Wexler, "Practicing," supra note 26 at 1049.
29. Ibid at 1050.
30. Ibid.
31. Ibid. The theory of law implicit in Wexler's account is not entirely straightforward. The legal and the social are treated as distinct spheres, poverty is a--perhaps the--meeting point between these, and poor people seemingly cannot navigate around law's harmful protrusions.
32. Ibid at 1067.
33. Ibid. To the extent that legal educational reforms are considered by Wexler, it is to illustrate how certain curricular practices of the day, namely the addition of "Law and the Poor" courses-courses which in their very existence serve a "useful function" of reinforcing that "the remainder of the curriculum deals with law and the rich" (ibid at 1050). Not only do these curricular exceptions prove the norm, asserts Wexler, but they "do little...to change the law schools' treatment of legal problems, or their perception of the proper roles and concerns of a lawyer" (ibid). My suspicion is that the latter claim is far more controversial than the former, given the proliferation of "law and" courses across law schools in Canada since the time of Wexler's account-much of this spawned by interventions like Wexler's. These courses typically include instructors and students who share some interest in redressing the legal profession's service failures.
34. That said, Wexler is credited with encouraging the search for alternative approaches. See Frederick H Zemans, "The Dream Is Still Alive: Twenty-Five Years of Parkdale Community Legal Services and the Osgoode Hall Law School Intensive Program in Poverty Law" (1997) 35 Osgoode Hall LJ 499 at 503 [Zemans, "Dream"]. https://doi.org/10.60082/2817-5069.1579
35. Margaret Martin Barry, Jon C Dubin & Peter A Joy, "Clinical Legal Education for This Millennium: The Third Wave" (2000) 7 Clinical L Rev 1.
36. On the early history of legal aid clinics in Ontario specific to PCLS and more broadly,
see Zemans, "Dream," supra note 34; Mary Jane Mossman, Karen Schucher & Claudia Schmeing, "Comparing and Understanding Legal Aid Priorities: A Paper Prepared for Legal Aid Ontario" (2010) 29 Windsor Rev Legal Soc Issues 149.
37. Mary Jane Mossman, "Community Legal Clinics in Ontario" (1983) 3 Windsor YB Access Just 375 at 381 (noting that "all of the early legal aid clinics were established as alternatives to the government-funded legal aid Plan"). In the judicare system, lawyers in private practice provided analogous services under legal aid to those provided to traditional "fee-paying clients in certain areas, such as Supreme Court-related or related to serious criminal offences, where in other proceedings, including small claims court, family and tribunal, a local legal aid official wielded discretion over representation" (ibid at 385). Judicare, as Mossman et al note, adhered to "legal categories of services available to paying clients" (Mossman, Schucher & Schmeing, supra note 36 at 160). For accounts of the historical emergence of legal aid in Canada and Ontario respectively, see James Edmund Jones, "Legal Aid for the Poor" (1931) 9 Can Bar Rev 272
John D Honsberger, "The Ontario Legal Aid Plan" (1969) 15 McGill LJ
436. For an investigation into the rationale behind legal aid not strictly focused on Canada, see Richard Moorhead, "Legal Aid in the Eye of a Storm: Rationing, Contracting, and a New Institutionalism" (1998) 25 JL & Soc'y 365 https://doi.org/10.1111/1467-6478.00096
Richard L Abel, "Law without Politics: Legal Aid under Advanced Capitalism" (1985) 32 UCLA L Rev 474.
38. Zemans, "Dream," supra note 34 at 500.
39. The articulation of clinic service boundaries is identified as beneficial for the incorporation of community members into clinical governance, which occurred in a contested and protracted way, though, as we will see, the enforcement of catchment areas is a form of the clinic's mundane internalized projection of state power. For a discussion of the contested nature of community in early clinics see Mossman, supra note 37 at 393-97. The service boundaries have since been expanded, though not uncontroversially. In addition to controversies surrounding boundary struggles, clinical governance provided additional tensions. For instance, there were internal attempts to share decision-making responsibility among clinic staff and executives. As noted at the time, "The office developed a democratic and horizontal method of decision making. Wherever possible all decisions were brought to the 'community of workers' within the office for their discussion and resolution." See Zemans, "Dream," supra note 34 at 510. These were more properly understood as contested struggles which continued throughout. For some early insight from the perspective of a founding student see Doug Ewart, "Parkdale Community Legal Services: Community Law Office, or Law Office in a Community?" (1997) 35 Osgoode Hall LJ 475.
40. Ibid at 505. An early evaluation of the program, conducted by then Professor Roland Penner and referred to as the Penner Report, noted the "apparent conflict between quality legal services on a large scale and a legal education clinic operating on limited resources" (ibid at 505). Yet, in a November 1972 review conducted by a federal official, clinic financial resources were seen as strong: "[I]ts generous budget permits the hiring of personnel and the purchase of high-quality facilities without the need to skimp" (ibid at 519).
41. Mossman, supra note 37 at 384.
42. Zemans, "Dream," supra note 34 at 504. Others term it the Council on Legal Education and Professional Responsibility.
43. Aubrey McCutcheon, "University Legal Aid Clinics: A Growing International Presence with Manifold Benefits" in Mary McClymont & Stephen Golub, eds, Many Roads to Justice: The Law Related Work of Ford Foundation Grantees Around the World (The Ford Foundation, 2000) 267.
44. David M Trubek & Alvaro Santos, "Introduction: The Third Moment in Law and Development Theory and The Emergence of a New Critical Practice" in Trubek & Santos, eds, The New Law and Development: A Critical Appraisal (Cambridge University Press, 2006) 1. For an overview of US-based law and development, see James A Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America (University of Wisconsin, 1980) at 6-26. A critique is mounted in the remainder of the text. For the foundational account, see David M Trubek & Marc Galanter, "Scholars in Self