For my many and manifold sins, I have been assigned to the law school's appointment committee. I'm grateful for the assignment, since I figure St Peter will credit it against my stint in Purgatory. We've devoted much of the fall semester to possible clinical hiring, which has forced me to learn more than I wanted to know about clinical legal education.
The process prompts me to ask: What is the function of a legal clinic? Is it to train students, to provide legal services to constituencies who have limited access to lawyers, or to advance a left-liberal political agenda?
In particular, what model should law schools pursue in the current challenging employment environment faced by our graduates? It seems to me that our students would be best served by a model that trains them to use skills in mainstream, paying jobs. In doing so, we would respond to demand for skills training from both students and the bar.
Yet, most of the clinical professors whose work we have reviewed this semester have pursued a model of inculcating left-liberal political values in students and deploying those students to advance left-liberal political causes. Indeed, as Heater MacDonald relates, this seems to be the pervasive world view among clinicians:
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. ...
... 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.”
This model is troubling on several levels. First, it privileges a certain set of political views in the hiring process, contributing to the marginalization of conservative viewpoints among law faculty. Second, it inevitably will tend to exclude students of moderate or conservative viewpoints, who will either self-select out of clinical classes or be harassed out of it.
Third, cause lawyering is wholly unrelated to the work most of our students will do most of the time. as John McGinnis commented in his review of Walter Olson's wonderful book Schools for Misrule: Legal Academia and an Overlawyered America:
Mr. Olson superbly describes the rise of legal clinics, the law-school component ostensibly designed to give students hands-on training. He notes that the charitable foundations that first funded these clinics were more concerned with creating turbines of social change than with educating students. These days, many more clinics engage in public-interest litigation (defined by a rather predictable liberal agenda) than devote themselves to matters like the legal ordeals of small businesses, though thinking about a deli's contract dispute with a supplier would be more relevant to a law student's future working life.
Fourth, at state schools such as ours, it often deploys taxpayer funds to advance fringe causes that may damage the state economy or antagonize important mainstream groups such as the business community. Again, MacDonald relates an infamous episode:
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.
Personally, I'd have sided with the governor. Why should tax dollars be used to undermine the state's economy and deny citizens jobs?
Fifth, much clinical legal education really seems to be about limousine liberals assuaging their guilt for living lives of extreme comfort (law professor salaries put most of these folks in or near the evil 1%). Again, back to MacDonald for a particularly egregious case:
In the mid-1990s, [a Yale law school] 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.”
At least he's honest.
I have no magic bullet for this problem. But the current crisis in legal employment may finally force law schools to start making economically rational decisions. If students, alumni, state legislators, and other relevant stakeholders start insisting on apolitical clincs that actually traing lawyers to do the work most of them will spend most of their careers doing, maybe progress will be made in divorcing the clinical movement from revolutionary movements. But I'm not going to hold my breath.