The Emergence and Influence of Transactional Practice within Clinical Scholarship

This essay, in honor of the twenty-fifth anniversary of the founding of the Clinical Law Review, reflects on the gradual emergence, and the limited influence, of transactional practice within clinical scholarship as reflected by writing in the Clinical Law Review since 1994. The essay offers three observations. First, a review of the fifty or so published issues of the journal demonstrates that writing about transactional practice has increased demonstrably between 1994 and 2019. Second, that development notwithstanding, it appears that when writers, even in recent years, write about lawyering in some generalizable fashion, the examples that appear in those works tend to understand the lawyering process as advocacy, negotiation, and resolution of disputes. The more prevalent transactional scholarship tends, by and large, to be focused on the development or the understanding of the substance of that type of work. Generic law practice seems to be understood primarily as litigating. And third, this review highlights the reality that the litigation stories seem to be richer than those from the business world. Writers writing for litigators or about litigation offer accounts of pain, struggle, and injustice, evocative narratives that teach us a great deal about some of the more beguiling challenges of practicing for others. Even the ethical tensions there are more exquisite. The business-focused submissions, while enormously valuable, tend to offer fewer such accounts and narratives.