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Commentary By Heather Mac Donald

Should Law Schools Abandon Clinics?

Economics, Education Finance, Pre K-12

Law schools today have come a long way from the apprenticeship model of the 19th century. Still, one expression of that practical training remains: the legal clinic. In clinics, students represent real clients with the help of instructors and learn the nuts and bolts of legal practice. But there is more to clinics than practical training, including persistent controversy.

In the current City Journal, Heather Mac Donald argues that clinics are little more than a way for law professors to “engage in political activism.” Clinics, she says, “have been engaging in left-wing litigation and political advocacy for 30 years.”

Should law schools get rid of clinics?

Heather Mac Donald is a John M. Olin fellow at the Manhattan Institute and a contributing editor to City Journal. Ronald S. Sullivan Jr. is Associate Clinical Professor of Law and Supervising Attorney at Yale Law School.

Mac Donald: 1/30/06, 11:40 AM
Here’s a better suggestion: Open clinics up to clients and causes that they currently shun. At present, clinics offer many opportunities to pursue left-wing, rights-expanding causes, from imposing judicial control on schools for their allegedly racist discipline decisions, to fighting “gentrification” in “neighborhoods of color,” to suing the Bush Administration for its anti-terrorism policies, to advocating for more redistributionist tax schemes. But few are the clinics that would take as a client an immigrant landlord who is struggling to evict a drug-dealing tenant from his sole investment, a small businessman trying to understand environmental regulations or to protect his property from a government taking, students seeking color-blind universities, or a robbery victim trying to put a lien on his assailant’s jewelry and car.

The belated addition of the occasional transactional clinic to the clinical universe hardly rectifies this imbalance. Most give priority to non-profit organizations, apparently deeming low-income entrepreneurs as outside clinics’ “social justice” mission—even though for-profit business development is one of the most powerful engines of community transformation, and even though for-profit business counseling has greater pedagogical utility than non-profit counseling.

Clinic advocates justify this political monotony by claiming that clinics only serve the indigent. Hogwash. Schools violate the poverty rationale the moment it stands in the way of politically fashionable causes. The Natural Resources Defense Council is hardly impecunious, yet it and other well-heeled environmental organizations are darlings of the clinical world. Ditto left-wing advocacy organizations such as the ACLU, NOW, the Children’s Defense Fund, and the NAACP, which are flush with foundation cash yet are fed a steady stream of bright young clinical students. The behemoth American Cancer Society gets free clinical representation for its tobacco control litigation. The hottest topic in clinics today is gay rights, even though gay white men occupy some of the highest income brackets.

Meanwhile, when have you ever heard of a clinic representing poor inner-city students seeking school choice?

Schools sometimes dismiss more conservative topics on the ground that they may not provide enough practice experience. Yet it’s hard to see what lawyering skills students will pick up in the following clinical activities: stuffing envelopes for a campaign on behalf of a new children’s learning disability, researching transgendered awareness, helping develop a self-defense program for acquaintance rape, or designing a “community advocacy” curriculum for high schools.

To be sure, many clinics still adhere to their original philanthropic and pedagogical justification, providing needed legal representation to clients who couldn’t otherwise afford it. But their one-sidedness sends the message to students that only a very narrow spectrum of political causes counts as “public interest” work, and that the highest calling of “social justice” lawyers is expanding the power of the state at the expense of personal responsibility. Clinics provide powerful evidence of law schools’ ideological narrowness, as argued by Professor Schuck in last week’s Debate Club.

Sullivan: 1/30/06, 05:02 PM
Putting aside for one moment a critique on the merits of your arguments (and I have many), one assumption in your post that is that clinical education is weighted in substantive areas with which you hold strong political disagreements. But you fail to offer even the slightest hint of empirical evidence for this claim. To the contrary, clinics across the country undertake a broad range of projects. Here, at Yale, for instance, students participate in a “TRO” clinic in which they assist alleged victims of domestic violence in securing Temporary Restraining Orders. Is this sort of representation also within the range of what you deem the “narrow spectrum of causes [that] counts as ’public interest’ work?”

I suppose that you would adapt my colleague and friend’s argument that this (and other) elite law schools are ideologically narrow and, thus, unlikely to have a broad range of clinics, even if they have a few of the sort that you would endorse. But, we could go down the list: What about Yale’s transactional work, where students are organizing a bank? Does students’ work in corporations law, security law, contracts, negotiations, tax and property law necessary to create a bank count as being the handmaiden for “left wing advocacy organizations?” More students take this non-poverty law clinic than any other (with, perhaps, the exception of the one I teach!).

I founded a criminal defense clinic at Yale where we represent individuals—not causes—who cannot otherwise afford representation. But we also have prosecution clinic, as well. My point here, Heather, is that you paint with too broad a brush. I use the clinics at Yale just as an example, but I could cite similar examples at other law schools around the country, which brings me to my second point. It strikes me that you cherry-pick a few a clinics and use those clinics as illustrative of what all clinical programs are like. Unless you do a more systematic study, we can trade examples to the ends of the internet without really proving much.

Finally, Heather, I am troubled by a conceptual problem in your post. You open with a reasonable (even if not empirically verified) claim; namely, let’s open up clinics to different substantive areas. Then, you proceed to denigrate and demean the sort of clinical work that you think is too “lefty.” A fair reading of your argument leaves the reader to wonder whether the true aim of your project is not to create diversified clinical offerings, but rather, to foster clinics that more congenial to your own political sensibilities.

This would be a rather anti-democratic move and offensive to those who think, for example, that students aiding victims of “acquaintance rape”—to use your example—is a morally worthwhile endeavor for students to apply their legal training.

Mac Donald: 1/31/06, 11:41 AM
I’m not surprised that Yale’s community development bank clinic is so popular�it’s one of the few opportunities Yale students have to engage in business transactions. (Tellingly, the bank project grew out of Yale’s failed efforts to block a bank merger.) None of the 14 clinics in Yale’s Legal Services Organization offer students a regular forum for for-profit counseling. If a non-profit tenants housing group wants to run a money-making laundry, say, then Yale’s students can help with for-profit business formation. But most would-be entrepreneurs in New Haven’s ghettos who dream of making themselves and others rich by creating their own business will have to look elsewhere for help understanding the tax code or negotiating a lease.

Yale’s legislative advocacy clinic advances the “interests of Connecticut public interest organizations” and aims to move Connecticut towards “a more progressive agenda in taxing and spending revenue.” Do any of those “public interest organizations” represent—oh, let’s just say—small businessmen seeking less onerous taxes or regulations so that they can expand their business and hire more workers? I would suspect not.

The vacuum at Yale regarding for-profit business advising is typical. The president of the Association of American Law Schools warned in 2002 that law schools were failing to provide adequate skills training to transaction lawyers, despite the explosion of clinics in other areas.

This failure is particularly significant, because the overwhelming majority of lawyers counsel businesses. One possible explanation for the relative dearth of small business clinics is the belief that helping entrepreneurs falls outside the “social justice” mission of clinics, loosely defined as helping perceived victims of America capitalism, classism, racism, and sexism seek redress.

The narrow conception of “social justice” affects other clinical offerings as well. I have no objection to helping victims of domestic violence, to whom countless clinics across the country are dedicated. But only one clinic, at Arizona State University, represents victims of armed robbery and families of homicide victims, despite the rich opportunities for cutting-edge lawyering in that area. Why are most law schools only interested in helping female victims of gender-related violence, and not all victims of gender-neutral street crime?

My observations about the ideological narrowness of clinics are based on months of what I would call “empirical” research—canvassing schools’ programs. And my conclusions are hardly quixotic. A clinician at New York University Law School readily agreed with my characterization of clinics as “overwhelmingly ’progressive.’” “There are opportunities for lawyering-related work that some students of a certain persuasion [i.e., conservative] wouldn’t get at this or most schools,” the professor said.

My own “political sensibilities” are irrelevant to my critique, Ronald. The facts speak for themselves.

Sullivan: 2/1/06, 07:59 AM
Heather, the absence of a systematic study of clinical programs betrays you yet again. You say that “none of the 14 clinics in Yale’s Legal Services Organization offer students a regular forum for for-profit counseling.” That’s just plain wrong. I suppose it’s easy to hurl accusations indiscriminately, and research is much more difficult. The truth is that a full 50% of the work in Yale’s community development clinic is dedicated to offering for-profit counseling. And it’s been that way for years. Indeed, the Director of Clinical programs at Yale invited you to come to visit the campus and witness for yourself the clinic’s small business work. The invitation remains open. I know that “facts” can complicate your already arrived at thesis, but knowing and using the facts—rather than deploying rhetorical salvos—is terribly important in debate. While you may consider what you have done as “’empirical’ research,’” few, if any, empiricists would share your view.

That said, why don’t we move on to the substantive issue that underwrites your critique? You just do not like the work that progressive clinics do. I, for one, think that students who use their legal skills to aid disadvantaged populations are engaged in a noble pursuit. You apparently believe such work to be the expansion of “state power at the expense of personal responsibility.” While I find that characterization to be the most grotesque sort of caricature on the work that I and many of my colleagues do, you have a right to your opinion. If your point was merely that more clinics should, say, aid small business owners in navigating through a complex of tax laws, I would not object. But why do you feel the need to denigrate those clinics dedicated to helping poor people? Does not the indigent criminal defendant have a moral claim to legal assistance, as well as the small business owner? In other words, the tone of your argument insists on a binary vocabulary: ’progressive clinics are bad, but the clinics that Heather MacDonald likes are good.’ Surely, you will allow that other clinics have value.

I fear, Heather, that your often-deployed phrase “narrow conception” of social justice more aptly applies to you than the clinical programs you criticize. Your political sensibilities have hardened into ethical judgments about the value of certain kinds of work and, regrettably, certain kinds of people. Your prose drips with derision as you waive aside concerns for “classism, racism, and sexism.” Indeed, you have morphed all “progressive” clinics into a rigid stereotype that you—quite obviously—do not countenance. So, I ask you to broaden your conception of social justice to include issues of classism, racism, and sexism—each of which continues to vex our democracy.

Mac Donald: 2/1/06, 12:14 PM
Ronald, since you continue to focus on my “tone,” I take it that you agree with my actual argument: That clinics nationwide fail to provide students adequate diversity in their legal and political philosophy.

Want to represent violent students in discipline hearings or even sue the schools that are trying to discipline them? No problem! Want to represent teachers and principals trying to maintain an orderly classroom or students hoping to learn without the fear of violence from fellow students? Not a chance. Countless clinics help tenants facing eviction for alleged drug dealing, say; almost none will help a financially-struggling small landlord trying to get rid of a destructive tenant or law-abiding tenants who desperately want a dealer out. Students can easily find placement with lavishly funded environmental organizations in order to sue the government for tighter pollution regulations, or businesses for their industrial processes. Only two clinics nationwide—at George Mason and Chapman law schools—offer the possibility of representing entrepreneurs and property owners facing environmental litigation or regulation. Clinics representing defendants charged with murder or robbery are routine; only one clinic represents victims of robbers and murderers. Students can lobby for a needle exchange program for AIDS-infected IV drug users; no clinics represent families who oppose such facilities in their neighborhoods or doctors who believe that harm reduction ideology encourages drug use. Plenty of clinics put students to work advocating for more progressive taxation and higher government spending; where are the clinics that place students with taxpayer groups or chambers of commerce.

Contrary to your charges, I have repeatedly stated that criminal defense work falls unimpeachably within clinics’ core mission. The point that you refuse to address is that such work is not balanced by the representation of equally compelling interests that lie outside a traditionally “progressive” or left-wing interpretation of social problems. You impugn my research, but have yet to point out any clinics devoted to small government or personal responsibility, say, that I have overlooked.

Surely you acknowledge the possibility of good faith disagreement over the solution to poverty. While many law students share the clinical world-view that fighting for rights and entitlements is essential to eradicating poverty, others do not. Some students may believe that the greatest disadvantage facing many inner city children is growing up without a married father, and that as long as boys in poor minority communities know that they can impregnate as many girls as they like without being expected to marry one, they will likely evade the bourgeois norms of staying in school, studying hard, and getting a well-paying job. Those law students will find few clinical outlets for focusing on values and cultural change.

Whether I believe that big government solutions to poverty will ultimately prove successful, despite their abysmal track record to date, is irrelevant. Surely an academic institution devoted to challenging received wisdom and to probing for the truth can afford a variety of approaches to the major questions of the day.

As to Yale’s for-profit business counseling, apparently I was misled by several Yale professors who confirmed the following course description of the Community and Economic Development clinic: the clinic serves “community groups, particularly nonprofit organizations involved in affordable housing and economic development efforts.” As one professor told me, the for-profit projects supported by Yale, such as the development of a laundry and supermarket, “typically have involved nonprofits and government/foundation funding.” Those descriptions do not, to me, suggest that Yale is primarily focused on helping for-profit entrepreneurs who want to build a money-making business solely within the free enterprise system, apart from government or philanthropic support.

Sullivan: 2/2/06, 08:31 AM
Now we’re getting to what I’ve been saying is the crux of the disagreement between us—a normative one, not a factual one.

Throughout our debate (and as evidenced in the article you linked in your last post), the following claim is evident: You oppose the current state of American clinical education. The basis of your opposition, however, has shifted over the course of the debate. On one read of your previous work, one can rationally conclude that clinics with progressive aspirations are, in your view, objectionable. Hence, my focus on your “tone.” Your tone suggests strong normative opposition to “public interest” clinics as that phrase is conventionally understood.

But in your most recent post, you appear to commit solely to a diversity argument of the following form: “I don’t care if law schools have ’lefty’ clinics so long as they have small-business, for-profit clinics too.” We’ve said enough about “tone” so I shall tackle the diversity argument.

Even though your empiricism is questionable, let us proceed on the factual claim that there are more public interest clinics than for-profit clinics. Assuming that is factually correct, I submit that such a distribution is morally derisible. As a normative matter, more law school resources should be directed to “public interest” lawyering than to the sort of entrepreneurial representation you envision.

I want to make three arguments in support this proposition: (1) the indigent clients whom the public interest clinics represent do not have resources sufficient to get representation elsewhere; (2) public interest clinics can help to right the scales of several forms of social injustice; and (3) in a free market society, prospective entrepreneurs are not entitled to free legal services to the same degree as indigent communities are.

Now, let me respond to a few of the questions you posed:

(1) Why do progressive clinics represent persons alleged to be drug dealers instead of landlords? Because landlords have the Department of Housing and Urban Development on their side, not to mention the District Attorney’s office that prosecutes these offenses.

(2) Why do progressive clinics represent clients charged with murder, rather than victims of murder? Because indigent defendants cannot get competent representation in most jurisdictions, whereas every major jurisdiction has a “Victim’s Advocate” office with full-time staff working on alleged victims’ behalf.

(3) Why do students lobby for needle exchange programs for AIDS-infected people instead of families or doctors who oppose needle exchange programs? Because “doctors” don’t need free legal services, for one. Also, because the President of the United States has set national policy in a way that disfavors needle exchange; because the Congress is controlled by a political party that disfavors needle exchange; and because the United States Supreme Court has a majority of members who are deferential to executive authority. Families who oppopse needle exchange are adequately represented.

The point should be obvious. The current distribution of law school clinical resources is rationally allocated in accord with need, and consistent with the interests of the student bodies.

Mac Donald: 2/2/06, 02:13 PM
Ronald, thank you for debating with me; I hope this isn’t the end of the conversation. Before I conclude, I would like to clear up a false insinuation from your previous post: Yale’s Clinical Director invited me to visit Yale only after my City Journal article was published; my earlier request of November 21, 2005, to visit the program while I was researching the article was rebuffed.

My argument has consistently been that clinics should be opened up to a greater diversity of clients and causes. The issue is not simply one of “public interest” v. “small business-transactional” clinics, though providing students with more opportunities to help inner-city entrepreneurs would be a vast improvement on the current clinical landscape. Rather, I have challenged the unspoken assumptions behind the whole idea of “public interest” causes and clinics. Any seemingly non-political rationale for the “public interest” conceit breaks down immediately upon inspection. Helping the indigent? There are scores of million-dollar organizations that receive clinical assistance—Sierra Club, ACLU, NOW, and the San Francisco AIDS Foundation, to name just a few—simply because they match the political inclinations of law school elites. Meanwhile, there are an equal number of truly indigent clients who are off the clinical radar screen because they do not fit within the law school passion play of society’s worthy victims and evil bad guys.

Why should a clinic assist the New York Civil Liberties Union sue the New York Police Department, and not represent poor Harlem residents who show up at every police-community meeting (I have attended many) to demand more cops on the street and an answer for why drug dealers who are arrested one day end up back on their corner the next? Why are wealthy Swarthmore students who want to post proprietary corporate documents on the web a valid clinic client, and not poor Chinese students in San Francisco who want to compete for entrance to U.C. Berkeley without their ethnicity being counted against them? If the well-heeled LAMBDA Legal Defense and Education Fund can get clinical help, why not some trailer park Baptist Church in a West Virginia holler that wants to keep the Ten Commandments posted in the local city hall (a cause with which I happen to disagree, by the way)?

Law schools regularly throw aside the other traditional justification for clinics—that they teach concrete lawyering skills—as soon as a politically correct cause comes along. If spending the night with vagrants in the New Haven train station counts as legal training, why not mentoring inner city students to make sure that they do not end up sleeping in public spaces?

Moreover, there are good faith disputes about how to help the truly indigent that are not reflected in law school clinics. Students who want to promote value change rather than transfer payments have no where to go. As for your three examples:

(1) Small private landlords seeking to evict dealers get no representation from HUD or District Attorney’s offices, nor do their law-abiding tenants.

(2) If the existence of meagerly funded and staffed state Victim’s Advocate’s offices obviates the need for victim’s rights work, then so do Public Defenders officers and the constitutional right to free legal representation obviate the need for defense clinics, including the ubiquitous domestic violence victims clinics.

(3) The idea that Hispanic families on New York’s Lower East Side who fiercely oppose needle exchange centers next to their schools can afford an attorney is ludicrous. The fact that the political consensus opposes needle exchange policy would suggest that the “public interest” lies with supporting those families, not screwing them.

In short, legal education and political pluralism would benefit greatly by ending the liberal orthodoxy that determines so many clinical offerings.

This piece originally appeared in Legal Affairs

This piece originally appeared in Legal Affairs