To understand how politically one-sided law schools are, look no further than the law school “clinic.” These campus law firms, faculty-supervised and student-staffed, have been engaging in left-wing litigation and political advocacy for 30 years. Though law schools claim that the clinics teach students the nuts and bolts of law practice, while providing crucial legal representation to poor people, in fact they routinely neither inculcate lawyering skills nor serve the poor. They do, however, offer the legal professoriate a way to engage in political activism—almost never of a conservative cast. If you wonder why law school profs invariably deem conservative jurists “out of the mainstream,” a survey of the clinical universe makes clear what the academy’s legal “mainstream” really means.
In the last few years alone, law school clinics have put the Berkeley, California, school system under judicial supervision for disciplining black and Hispanic students disproportionately to their population (yes, that’s Berkeley, the most racially sensitive spot on earth); sued the New York Police Department for its conduct during the 2004 Republican National Convention; fought “gentrification” (read: economic revitalization) in “neighborhoods of color” in Boston, New Haven, and New York; sued the Bush administration for virtually every aspect of its conduct of the war on terror; and lobbied for more restrictive “tobacco control” laws.
Over their history, clinics can claim credit for making New Jersey pay for abortions for the poor; blocking job-providing industrial facilities; setting up needle exchanges for drug addicts in residential neighborhoods; forcing Princeton’s eating clubs to admit women; allowing female murderers to beat the rap by claiming “battered women’s syndrome”; and preventing New Jersey libraries from ejecting foul-smelling vagrants who are disturbing library users.
Yet only a handful of law schools would have any interest in providing legal assistance to Shawna Spencer, an inner-city Chicagoan who hopes to turn her passion for shoes into a booming business. Already overextended on every possible credit line, Spencer couldn’t afford an attorney to negotiate a lease for the shoe store she wanted to open. Fortunately, the University of Chicago Law School offers one of the few clinics to take struggling for-profit entrepreneurs as clients. “I couldn’t have opened without my ‘attorneys,’ ” Spencer says of the Chicago law students.
Had this energetic optimist been seeking government benefits or, better yet, had she struck a clinic director as a vehicle for litigating a new entitlement into existence, she could have had the pick of the law school elite to fight her case.
The history of the law school clinic explains why. A handful of clinics existed throughout the twentieth century, to give students hands-on experience of law practice. Drafting complaints and cross-examining witnesses can usefully supplement the traditional curriculum’s emphasis on abstract legal doctrines. Having a real client, who usually presents himself as a muddle of contradictory desires, allegations, and denials, rather than as a neatly packaged cause of action, focuses the mind on how to use the law as a casebook rarely can. And the philanthropic justification for the early law school clinics—that they provided legal help to people who otherwise couldn’t afford it—is unimpeachable.
But once the Ford Foundation started disbursing $12 million in 1968 to persuade law schools to make clinics part of their curriculum, the enterprise turned into a political battering ram. Clinics were the perfect embodiment of a radical new conception of lawyers and litigation that emerged in the 1960s—the lawyer as social-change agent. Up until that era, the entire law profession was seen as a form of public service, essential to a democracy. But now, as Attorney General Robert Kennedy urged in 1964, lawyers should fight “the problems of poverty, racial discrimination, and other great social ills.” Henceforth, the noble, public-spirited attorneys would be those suing for the egalitarian transformation of society. Arthur Kinoy, the founder of clinical education at Rutgers, called for a new breed of lawyer: “people’s lawyers—characterized by their compassion, competence and commitment to the cause of equal justice and positive social change.” Note the implication: a solo practitioner who has spent his career helping the elderly draft wills or negotiating commercial leases for small-businessmen is not a “people’s lawyer,” nor are his clients “people.” Ivy-educated activists like the late Harvard law professor Gary Bellow, however, lawyer for the Black Panthers and the intellectual patriarch of the clinical movement, are “people’s lawyers.”
Ford Foundation head McGeorge Bundy embraced this view and set the agenda for America’s richest foundations when he declared in 1966 that law “must be an active, not a passive force. It is both urgent and right that the law should be affirmatively and imaginatively used against all forms of injustice.” The foundation made sure that the tax code reflected this new hierarchy of virtue. Soon after launching the clinical revolution, Ford started agitating to make litigation a deductible charitable activity, if the litigation was in the “public interest”—a change that would help Ford spread activist lawyering throughout the country via federally subsidized “legal services” offices. After initially rejecting the demand, the IRS gave in.
No one can object to fighting discrimination and poverty. But the problem is that no one elected a Ford-funded “poverty lawyer” to create a new entitlement scheme. If that lawyer can find a judge who shares his passion for welfare, however, the two of them will put into law a significant new distribution of rights and resources that no voter or legislator ever approved.
And what if the activist philosophy of lawyering is wrong in its diagnosis of society’s ills? Too bad: correcting its errors through the democratic process is extremely difficult. Sixties-era lawyering belonged to a larger revolution in thinking about the poor, and especially the minority poor. Gone was any reference to personal responsibility: to remark, for example, that dropping out of school, taking drugs, and having illegitimate children produce poverty was condemned as “blaming the victim.” Eradicating poverty required massive changes in society, not in individual behavior. The activist lawyer would spearhead those changes by creating new court-enforceable rights and entitlements.
Unquestionably, racial discrimination, and the poverty that it fostered, were urgent problems when Robert Kennedy, McGeorge Bundy, and others issued their call for activist lawyering. But they all underestimated both America’s ability to change and an individual’s ability to better himself despite prejudice. Today, not only does virtually no major American institution discriminate against racial minorities; all fiercely compete with one another to admit or hire as many minorities as possible, using preferences and double standards to do so.
Yet law schools and their clinics hold firmly to the belief that discrimination remains a major factor holding back minorities. Columbia Law School’s statement in support of clinical education is typical—and typically antique: clinics address the “legal problems that arise from poverty, racism, inequality, and political tyranny.” And in language that would have seemed cutting-edge 40 years ago, Stephen Wizner, Yale’s William O. Douglas Clinical Professor of Law, declares: “Representing groups in class actions, engaging in law reform litigation and supporting community organizing efforts are crucial to increasing the economic and political power of the poor.” In other words, what lawyers can do for the poor is equally if not more important than what the poor can do for themselves.
Today’s clinical landscape is a perfect place to evaluate what happens when lawyers decide that they are chosen to save society. “Some of us felt like kids in a candy shop: a public interest law firm funded by a law school with ready workers providing important client services,” recall Yale’s Wizner and Jane Aiken, a Washington University clinical professor of law. The law school clinics don’t just take clients with obvious legal issues, such as criminal defendants or tenants facing an order of eviction. They take social problems—unruly students in school, for example—and turn them into legal ones. Florence Roisman, a housing rights activist at the Indiana University School of Law, has inspired clinicians nationwide with her supremely self-confident call to arms: “If it offends your sense of justice, there’s a cause of action.”
Of course, the original rationale for many clinics disappears under all this social justice lawyering, even though schools continue to invoke it. Harvard, for instance, still explains why law students should enroll in a clinic by emphasizing craft training: “Practical learning . . . should not be deferred until after law school graduation,” the faculty declare. But what “skills of legal representation,” in the faculty’s words, will students in the Gender Violence, Law and Social Justice clinic pick up in researching “gay, lesbian, bisexual, and transgendered awareness” for the Massachusetts trial courts, or in helping with the “development of a new self-defense program” to prevent acquaintance rape? Perhaps providing “legal support,” as the clinic description puts it, to V-Day (V is for vagina), a women’s advocacy organization, will help students learn how to understand a client’s legal needs. But it’s just possible that working for V-Day, which organizes worldwide performances of The Vagina Monologues, is more about feminism than about law.
Harvard’s Family and Children’s Law clinic uses an equally elastic definition of legal training when political advocacy demands it. The clinic has recently discovered a new form of disability that prevents minority children from succeeding in school: the trauma of witnessing domestic violence. Clinic directors hope to persuade Bay State legislators to fund “trauma-sensitive educational approaches.” Accordingly, the clinic sponsored a briefing at the state capitol: students manned a phone bank; “prepared informational packets to [sic] legislators” (otherwise known as stuffing envelopes); greeted legislators and their staff; and listened to the conference. None of these tasks hones the legal wizardry that future clients of these Harvard-trained lawyers will hope for.
Children’s advocacy clinics, a law school staple, typically represent foster children whose real parents have abused or neglected them. Child welfare law is one of the saddest corners of the law, a place where the cold procedural logic of courtroom jousting is superimposed on the chaotic mess of drug-addled lives, irresponsible neglect, and unthinkable abuse. A clinic devoted to adoption or one that sought to establish paternity on the part of unmarried fathers would vindicate interests currently unrepresented in law schools. The director of NYU’s Family Defense Clinic, which helps abusive or neglectful mothers keep their children out of, or get them back from, foster care, dismissed these suggestions. “Adoption is largely ministerial”—assembling and filling out the proper forms, explained Martin Guggenheim, the Fiorello LaGuardia Professor of Clinical Law. “A good paralegal can get it down.”
Perhaps. But many NYU clinics don’t even develop a paralegal’s level of expertise. According to the course description, the Community Economic Development Clinic “provides training in how lawyers as problem solvers might work with and in communities to create and sustain a more democratically inclusive, accountable, and effective vision of economic development. Rather than treat this vision as quixotic, the Clinic will explore how—across a wide variety of economic development proposals and across public, private, and civic realms—success may well depend upon the qualities central to such an approach. Through a careful exploration of ideas and impulses about community economic development—how it should be conceived, implemented, and evaluated—the Clinic will illuminate current conditions and future trajectories.” Such a description reflects not just the abysmal writing skills of clinic director Gerald Lopez but also the conceptual muddle at the heart of the Community Economic Development Clinic. The only concrete thing that the students seem to have accomplished is surveying residents and social-services agencies in low-income neighborhoods about their problems. A paralegal would be overqualified for such a job. No matter. Director Lopez, who frequently invokes his identity as an East L.A. Chicano, boosts a school’s highly desirable radicalism quotient, having coined the fashionably edgy term “rebellious lawyering” for whatever it is he purports to do.
NYU’s Brennan Center Public Advocacy Clinic explicitly disavows advancing a student’s lawyering knowledge; it is simply a vehicle for every type of left-wing political advocacy, from needle exchange to affirmative action to HIV-AIDS policies. The center spearheaded one of New York’s most powerful welfare-rights groups, and, to make sure that the supply of left-wing agitators remains high, it also developed a “community advocacy” curriculum for high schools. Nor does another NYU clinic, this one on immigrant rights, limit itself to law matters. Students lead protests and then rustle up media coverage for those protests—part of what the clinic calls “explor[ing] a range of ways of being a social justice lawyer.”
If lawyering were merely a synonym for left-wing lobbying, many clinics could claim strong pedagogical justification. Students in Georgetown’s State Policy Clinic work on “building a new economy that is inclusive, participatory, and environmentally sustainable.” Yale’s Legislative Advocacy Clinic aims to move Connecticut toward “a more progressive agenda in taxing and spending revenue.” But if one of the main skills a lawyer needs is the ability to serve a client, why are there no real clients in these and many other clinics? The director of a Yale legal clinic was accurate when he told potential applicants recently that the “Lowenstein Human Rights clinic does not look like the practice of law.”
To be sure, there is plenty of sue-the-socks-off-’em litigation emanating from law schools, mostly aimed at substituting an unelected lawyer’s judgment about the allocation of taxpayer resources for the legislature’s. Yale just created an education clinic as a vehicle for suing Connecticut over its school funding formulas. Stanford’s Youth and Education Law Clinic put the East Palo Alto school district under judicial oversight for its special-education policies. Private employers are targets, too: Georgetown’s Institute for Public Representation has been suing United Airlines for years, even as the airline went bankrupt, for its decision to subject a passenger to a heightened security check after 9/11. That United’s motive was to protect the public, not racial animus, has not deterred the clinic’s zeal.
These complex, years-long lawsuits violate another clinic rationale. Clinics provide students with the “unique educational experience [of] watch[ing] the progress of a case from the beginning to the end,” asserts Larry Marshall, head of clinical education at Stanford Law School. Except that many don’t. Political-change cases take years to complete, and students put to work on them resemble nothing so much as law-firm associates, droning away on some corner of a case that will ultimately redound to the greater glory and income of a partner. And the larger the case, the less likely that students will have any significant responsibility, as even clinic advocates admit. “If a case has been going on for five years, am I going to put a student in front of a judge to argue the remedy stage?” rhetorically asks Stanford’s education clinician William Koski.
Ask why more clinics don’t represent small-businessmen and you will invariably hear: We are “people’s lawyers,” representing clients who cannot afford attorneys. Oh, really? The hottest new clinic in law schools is the gay, lesbian, bisexual, and transgendered clinic. No mention in any of the catalog descriptions of income limits—and a good thing, too, because many gay men occupy the country’s highest tax brackets. Stanford’s Cyberlaw Clinic represented Swarthmore College students who wanted to post a company’s proprietary documents on the Web; Swarthmore’s $35,000-plus annual bill does not suggest an impoverished student body. Georgetown University’s Institute for Public Representation represents the American Cancer Society, the American Heart Association, and the American Lung Association in tobacco litigation.
The idea that these charitable behemoths could not pay for their own lawyers is silly. Ditto the encyclopedia of left-wing advocacy organizations that Lani Guinier’s students at Harvard and the Brennan Center’s students at NYU work for. Not only do the ACLU, Common Cause, the Lawyers Committee for Civil Rights, NOW, the San Francisco AIDS Foundation, the NAACP, and the Children’s Defense Fund rake in the dough from huge foundations and flush donors, but they can call on pro bono representation from the nation’s most prestigious law firms.
Nor is penury the first word that comes to mind when observing the Natural Resources Defense Council’s 25,000-square-foot New York headquarters, renovated in an environmentally sensitive fashion for $2.8 million in 1990. Yet NYU’s law clinic places students with the NRDC, two of whose attorneys teach in the clinic. Could the NRDC, another creature of Ford Foundation largesse, fight industrial America without help from NYU law students? Undoubtedly.
Environmentalism itself is hardly a grassroots poor-people’s movement, yet environmental clinics have been a law school staple since the 1970s. Shutting down employers, taking rarely seen land out of circulation for the sheer spiritual satisfaction of it, worrying about unproven risks from life-enhancing chemicals, and paying higher prices for eco-friendly products have historically been luxuries enjoyed by affluent white people. Awareness of that embarrassing truth led to one of the great innovations in save-the-earth politics: the idea of “environmental racism.” Written into law by the Clinton-era EPA, this notion holds that pollution-generating industries target “disenfranchised” minority neighborhoods (a claim that empirical evidence contradicts) for such nefarious deeds as producing plastic, tires, and paper—and that they can be sued for allegedly doing so. The new slogan lets law schools continue their environmental crusades and pretend to be defending the poor as well.
Environmental law clinics have sued the army, cities, foresters, petrochemical producers, the EPA, landfills, farmers, and freighters, among many other evildoers. But one famous environmental fight deliciously demonstrated just how specious is the clinics’ “we’re representing the poor” justification. In 1997, Tulane’s environmental law clinic barred a planned plastics plant from a predominantly black township between Baton Rouge and New Orleans. The clinic claimed that it was fighting “environmental racism,” but many town residents, backed by the NAACP, had worked for years to win the Shintech company’s new PVC plant for their parish. After Shintech threw in the towel, Louisiana’s governor, furious at the loss of jobs, persuaded the state supreme court to change the rules governing when law students can represent clients. Under the new guidelines, students could represent community groups only if 51 percent of the group’s members had incomes below 200 percent of federal poverty guidelines.
You would have thought the court had required law professors and law partners to donate a portion of their income to poor relief. The legal elite rose up in outrage at the requirement that law clinics actually do what they claim they’re doing: represent the indigent. NYU’s Brennan Center, the New York firm of Skadden, Arps, Slate, Meagher & Flom, the Association of American Law Schools, the American Association of University Professors, UC Berkeley’s Center for Clinical Education, and the ACLU sued the Louisiana Supreme Court for violating professors’ and students’ First Amendment rights. With unlawyerlike illogic, David Udell, director of the Brennan Center’s poverty program, railed: “Poor communities in Louisiana still virtually have nowhere to obtain justice.” In the same spirit, the Association of American Law Schools protested that the Louisiana rules “will effectively deny law students the opportunity to provide access to justice for the working poor and for many poor community organizations in Louisiana.”
That leaves one final rationale for clinics: consciousness-raising. Though many clinics by now have left the poor far behind in their pursuit of Bush administration war criminals, say, or hapless state legislators trying to balance their budgets, others still aim to put students in contact with the disenfranchised and oppressed, to inspire a new generation of activist poverty lawyers. With almost Dickensian self-parody, the Harvard faculty touts clinics as a way to see “dimensions of social reality that must be experienced to be understood. . . . Exposure to the problems and the cultures of poverty, and to the intersection of those realities with legal rules and practice, deepens understanding of the legal system and its relation to the society at large.”
Yale’s legal-services clinic provided an especially up-close opportunity for such experiential learning. In the mid-1990s, the clinic wanted to stop a police plan to evict vagrants from the New Haven train station. Director Stephen Wizner advocated that the students spend the night with the vagrants: “We encouraged these students to act on their belief that in order to be ‘lawyers’ for the homeless people in the train station, lawyers [sic] needed to be present to argue against the proposed police action. The students ended up spending the night at the train station. Through their physical presence, and by appealing to the individual police officers as human beings, these students ‘won’ their ‘case.’ The people were allowed to sleep in the train station, rather than being driven out into the freezing cold streets of New Haven.”
Wizner calls such “social justice” interventions “human learning.” But what really did the Yale students learn in their night of solidarity, and why are only some kinds of experience with social reality of interest to clinic advocates? Doubtless the Yale students learned that it is less comfortable to spend the night in a train station than at home. But did they learn about the drug and alcohol addictions, mental illness, and social disaffiliation that keep vagrants on the street? Have they experienced the travails of social workers who cannot persuade vagrants to enter shelters? Did they bond with the maintenance men who must clean up the feces, urine, and discarded paraphernalia left by the “homeless”? Did they learn about the commuters who shun public transit for fear of being accosted by mentally ill drug addicts? And are they confident that they know how keeping the “homeless” in public spaces affects their “clients’ ” motivation to seek help? Do they consider how in-your-face public vagrancy weakens the viability of cities?
Taking a vagrant home would contribute far more to the students’ “consciousness-raising” about the “homeless,” but Wizner says he would not encourage students to adopt a vagrant. Why? “Because I wouldn’t take them home with me.” Why not? “Because I don’t want them in my house.” Displaying a rare and admirable honesty, Wizner added: “There is a limit to my commitment to social justice.”
Given this perfectly reasonable reluctance, one wonders why train commuters should have less choice about sharing space with the “homeless.” Perhaps the clinic could defend the interests of train users in a clean, safe station? “We should represent poor people,” Wizner responded. “I would not be interested in representing middle-class people in the train station.” But of course, many public-transit riders, though not indigent, could not possibly afford to litigate such a suit on homeless policy.
In light of the claims made on clinical education’s behalf, you would think that employers would demand to see such courses on an applicant’s resumé. In fact, the marketplace shrugs. Former Cornell Law School dean Roger Cranton observes: “A lot of hiring partners disparage clinical education. They think of it as a policy mishmash, not as an opportunity to learn skills.” Even the clinicians know this awful truth. “Talking to our grads, partners don’t give a damn about clinics, because they aren’t providing ‘relevant skills,’ ” says Yale’s Wizner, with considerable sarcasm. “The hiring partners want someone who can rack up 2,500 billables, by reviewing documents.”
Especially since clinical education is so expensive—the faculty-to-student ratio is orders of magnitude smaller than in large lecture courses—schools should either discontinue this pedagogically irrelevant subsidy to political agitation, or they should open clinics up to currently disfavored topics that would provide relevant practical training. Ending clinics is not likely: the ABA and the Association of American Law Schools are urging schools to give tenure-like rights, such as voting on new faculty hires, to clinical professors—a move that will only push the schools further leftward. All the more imperative, then, to broaden the range of clinical offerings.
If they were really serious about preparing students for their legal careers, every school would have a transactional clinic for small businesses. The vast majority of lawyers advise clients on business deals—negotiating contracts, setting up corporations and partnerships, trying to avoid legal and tax liabilities, and arranging securities offerings and registrations. As NYU’s Martin Guggenheim acknowledges, “Students are entering a world where litigation is the least likely thing that they will do.”
In grudging recognition of this reality, some law schools do offer transactional clinics, but most give priority to nonprofits. Harvard’s Community Enterprise Project, for example, works chiefly with “community development” groups, while Yale’s Housing and Community Development Clinic offers “consultation to community groups, particularly nonprofit organizations involved in affordable housing and economic development efforts.” But getting a nonprofit up and running is far less complicated, and less pedagogically useful, than advising a for-profit venture.
The Institute for Justice runs perhaps the only exclusively for-profit business clinic in the country, at the University of Chicago. The law school at first assumed that the clinic would help businesses seek minority set-asides, recalls the Institute for Justice’s director, Chip Mellor. “We said, ‘That’s a deal-breaker. We only do private sector advancement.’ The Dean blinked, and said, ‘Well, OK.’ They had never thought anything to the contrary.”
It is law school students, not professors, who are spearheading the creation of transactional clinics, and students are crowding into such clinics once they are created. The demand for such clinics is as high outside the school as in it. Struggling businesses, including those run by minority entrepreneurs, are hurting for lack of counsel, students have found. Dan Ehrlich, a second-year student at the University of St. Thomas School of Law in Minneapolis, has been leading the establishment of a business clinic there. “There is a huge need for such an enterprise,” he says. The federal Small Business Administration offices in Minneapolis are overwhelmed with would-be entrepreneurs seeking assistance, he notes.
Just because such entrepreneurs hope to make a profit doesn’t mean that they can afford legal counsel. “I opened up underfunded, and I’ve been working undercapitalized ever since,” says Shawna Spencer, the shoe-maven client of the University of Chicago entrepreneurship clinic. “Every small business operates undercapitalized, because loans don’t exist. We don’t have money for marketing; we definitely don’t have money to hire an attorney.”
The possibility of launching future job-creators like Spencer, especially when they come from inner-city backgrounds, ought to fire up the “social justice” crowd. “The schools aren’t looking at the bigger picture,” Spencer says, when told that the University of Chicago entrepreneurship clinic is unique in helping only for-profit businesses. “A seamstress in a housing project doesn’t know that she could become a renowned designer. When you’re helping to realize someone’s potential, you’re creating less poverty.”
Business clinics not only fit the “fighting poverty” rationale for clinics; they meet the experiential test as well. Working for a small business “deepens understanding of the legal system and its relation to the society at large,” in the Harvard faculty formula. David Neil incorporated and tried to get licensing permits for a small moving company while enrolled in the University of Chicago’s entrepreneurship clinic. “It was an eye-opener,” Neil says. The owner needed to pay $1,000 in a nonrefundable fee just to apply for the permits. Such barriers to entry have a “chilling effect” on low-income entrepreneurs, Neil observed. “The experience taught me that the law is sometimes used to perpetuate the status quo,” he says.
For schools interested in giving students hands-on training, representing the unrepresented, and providing “human learning,” there is a world of clients and causes (however politically incorrect they may be) that meet every justification offered for the current one-sided array of clinics. Herewith some possible topics:
Representing small-businessmen, landlords, and property owners. The thicket of environmental law has grown so complex that “no one can stay out of trouble,” according to former Natural Resources Defense Council litigator David Schoenbrod, author of Saving Our Environment from Washington. Unlike big businesses, small outfits have trouble affording lawyers to hack through those rules or to meet the EPA’s onerous paperwork requirements. Providing them counsel would nicely balance the political bias of current environmental clinics and provide a real learning experience.
The country abounds with small landowners barred from developing their property because of zoning regulations or government eminent-domain actions. Only two clinics in the country defend such landowners—at George Mason’s and Chapman’s law schools—yet property rights and federalism cases pose cutting-edge constitutional-law issues.
Defending tenants against eviction is a law school staple. NYU’s civil rights clinic is currently representing a tenant whom the landlord claims is “engaging in illegal drug activities in her apartment,” according to the clinic catalog description. Certainly the tenant needs legal representation. But it would be equally useful for students to experience New York’s housing court from the landlord’s side, where getting rid of a dope-dealing tenant requires Herculean efforts against pro-tenant rules and judges. Numerous small landlords have scraped together just enough for a down payment on a two- or three-unit property, which they can pay off only by renting out the apartments that they are not occupying. When their tenants turn deadbeat or commit vandalism, their investment is at risk. “Human learning” in a small-landlords clinic might include surveying tenants in buildings where a resident drug trader is receiving free representation from another clinic. The “silent majority of tenants back landlords’ efforts to get sleazeballs out, but they are afraid to talk because of retribution,” says Carol Abrams, spokesman for New York’s Housing Preservation and Development Department.
Defending the authority of school districts and teachers. Stanford’s education law clinic just put the Berkeley, California, school district under court order for allegedly “discriminatorily” disciplining black and Latino students. The teachers will have to submit to “sensitivity training,” and the schools will have to take corrective action to make sure that minorities are not being disciplined at rates disproportionate to their representation in the school population. (And if minorities really do cause disproportionate violence in the schools, too bad.) Students in a clinic dedicated to upholding school authority might shadow a principal in a district operating under a court-imposed consent decree, to experience the barriers to removing a disruptive student. Clinic students could also attend a classroom where the teacher must worry about whether his disciplinary decisions will be challenged as illegal and racist by pupils, lawyers, and judges.
Representing crime victims. The only crime victims currently on law schools’ radar are domestic violence victims, but boy, do they get attention. Domestic violence clinics abound, taking a law-and-order stance that would be unthinkable for crimes where “gender” is not implicated. Many schools do offer a prosecution clinic to balance out their numerous criminal-defense clinics, but prosecutors famously give short shrift to victims’ perspectives.
Victims’ rights is ripe for the creative lawyering that transformed the legal universe in the 1960s. “There are many judges around the country who would be responsive to innovative arguments” in the field, says criminal-law theorist and Columbia Law School professor George Fletcher. But currently the only significant victims’ rights clinic is at Arizona State University. Explains director Keli Luther: “Because there is so little case law in the field, students have to think outside the box. They’re drafting motions that have never been written before.” The clinic is experimenting with creative ways of seeking restitution, for example, such as filing liens on defendants’ stolen stereos, cars, and jewelry.
Allowing students to work with victims would provide the sort of “human learning” that clinicians advocate. Seeing how crime affects families and communities would seem to be one of those “dimensions of social reality that must be experienced to be understood.” And as for understanding the “intersection of realities with legal rules and practice,” in the Harvard faculty’s words, exposing students to victims of criminals who have escaped conviction thanks to defendants’ rights rulings, or who have been assaulted by criminals out on early parole, surely would “deepen understanding of the legal system and its relation to the society at large.”
Defending law officers. New York and other big cities host a cottage industry of suing cops for false arrest, whenever prosecutors decide not to file charges against an arrestee. A clinic could help police departments litigate such cases, rather than settle them, as they usually do, at considerable expense to taxpayers. Similarly, prisoners (often represented by clinics and fancy firms) sue prisons constantly, alleging various constitutional violations. Prison defense work would offer one of the best constitutional-law practices around, because the issues presented under the First, Eighth, and Fourteenth Amendments are so richly complex.
Supporting a colorblind America. Not a single civil rights clinic has pushed to end racial preferences, which would make the Constitution’s promise of an America without color distinctions a reality. The targets for such an originalist civil rights clinic—one that would realize Martin Luther King’s dream—are legion.
These examples center on litigation, unlike the law schools’ current emphasis on policy advocacy, protest, and community organizing. But if the schools think they must provide advocacy experience, pro-life clinics could send students to state capitols to demand that parents be given a say over their children’s abortion decisions. Clinics could organize inner-city residents to demand crime-free neighborhoods, whether through an end to the racial data collection mandates on police departments that discourage aggressive policing, or through tougher sentencing laws and parole conditions. Students could stuff envelopes for would-be entrepreneurs as they lobby for less confiscatory tax policies.
The proponents of social justice lawyering are unlikely to acknowledge any time soon that their revolution has triggered family breakdown, unleashed an epidemic of crime in inner-city neighborhoods, and burdened entrepreneurs with unnecessary regulations. At the very least, however, law schools should offer students the chance to question for themselves whether such lawyering is the best way to help society. Opening up clinics to radical perspectives on the benefits of limited government and personal responsibility would be a good place to start.
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