You'll never believe what left-wing law profs consider “mainstream.”
Democratic senators have repeatedly questioned whether Samuel Alito is in the legal “mainstream” during the opening days of his Supreme Court confirmation hearings. To see what the “mainstream” means for the legal elites in the Democratic party, 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 advocacy for 30 years. Though law schools claim that the clinics teach students the basics of law practice while providing crucial 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. A survey of the clinical universe makes clear how politically one-sided law schools--and the legal ideology they inculcate--are.
In the last few years, law school clinics have put the Berkeley, Calif., 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 City Police Department for its conduct during the 2004 Republican National Convention; fought “gentrification” (read: economic revitalization) in urban “neighborhoods of color”; 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; and preventing New Jersey libraries from ejecting foul-smelling vagrants who are disturbing library users.
Law school clinics weren’t always incubators of left-wing advocacy. 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 came to embody a radical new conception that emerged in the 1960s--the lawyer as social-change agent. Ford Foundation head McGeorge Bundy declared in 1966 that law “should be affirmatively and imaginatively used against all forms of injustice.” No one can object to fighting discrimination and poverty. But 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 ever approved.
Today’s clinical landscape is a perfect place to evaluate what happens when lawyers decide that they are chosen to save society. The law school clinics don’t just take clients with obvious legal issues, such as criminal defendants or tenants facing 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.”
The original rationale for many clinics disappears under their political agenda, even though schools still invoke it. Harvard, for instance, 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?
New York University’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. 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 help lead protests and then rustle up media coverage for those protests--part of what the clinic calls “explor[ing] . . . ways of being a social justice lawyer.” 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.”
Plenty of litigation still does emanate 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. Georgetown’s Institute for Public Representation has been suing United Airlines for years for its decision to subject a passenger to a heightened security check after 9/11.
Ask why more clinics don’t represent small-business men and you’ll hear: We are “people’s lawyers,” representing clients who cannot afford attorneys. Oh, really? 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 lawyers is silly.
Environmentalism is hardly a grass-roots poor-people’s movement, yet environmental clinics have been a law school staple since the 1970s. One famous environmental fight demonstrated just how specious is the environmental clinics’ claim to be defending the poor. In 1997, Tulane’s environmental law clinic got a planned plastics plant barred 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 withdrew, Louisiana’s governor, furious at the loss of jobs, persuaded the state supreme court to require that Louisiana law clinics actually represent poor people: Under the new rules, students could represent community groups only if 51% of the group’s members had incomes below 200% of federal poverty guidelines.
The legal elite rose up in outrage. NYU Law School’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. Happily, federal courts threw out their case.
That leaves one final rationale for clinics: consciousness-raising. 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 encouraged his students to spend the night with them to experience their plight and to dissuade the police from taking action. The students did camp out in the station, and the police left the “homeless” in place.
Mr. Wizner calls such interventions “human learning.” But did the students learn about the addictions, mental illness and social disaffiliation that keep these people on the street? Did they bond with the maintenance men who must clean up the feces, urine, and discarded paraphernalia left by the “homeless”? And are they confident that they know how keeping the “homeless” in public spaces affects their “clients’” motivation to seek help?
In light of the pedagogical claims made on clinical education’s behalf, you would think that employers would demand to see such courses on an applicant’s rÃ©sumÃ©. 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.” If law schools were really serious about preparing students for their legal careers, every one 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. Struggling businesses, including those run by minority entrepreneurs, are hurting for lack of such counsel.
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) that meet every justification offered for the current one-sided array of clinics: small landowners barred from developing their property because of zoning regulations or government eminent-domain actions, victims of crime, cops wrongly sued for false arrest, and many more. If the schools think they must provide political advocacy experience, clinics could organize inner-city residents to demand crime-free neighborhoods through, say, tougher sentencing laws. Students could help entrepreneurs lobby for less confiscatory tax policies.
The Samuel Alito hearings will demonstrate the end result of law schools’ political myopia. The proponents of social justice lawyering are unlikely to acknowledge any time soon that their revolution has been a failure. 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.
This piece originally appeared in OpinionJournal.com