The Latest Battle In The War On Law Clinics

Today, a committee of the Louisiana Senate will hold hearings on a bill designed to undermine the power of law school clinics.  The proposal would prohibit all law school clinics in Louisiana from suing government agencies, seeking damages from private individuals and entities, and raising constitutional claims at all.  Any university that does not comply would lose all state funding - which turns out to be a fair amount of money, even for private schools like Tulane.

The bill is the only the most recent volley in the longstanding war between Tulane's environmental clinic and Louisiana's chemical and oil industries.  Several years ago, after the clinic won a lawsuit against local plastics maker Shintech, advocates for industry successfully pressed the state Supreme Court to adopt remarkably restrictive limits on student law clinics.  (Note: the former director of the Tulane clinic, Bob Kuehn, was my colleague for several years at the University of Alabama.  He is now at Washington University in St. Louis.) 

Louisiana is hardly alone.  A few years back, supporters of an expressway project in Pittsburgh attempted to pressure the law school to stop its environmental clinic from advocating for opponents of the plan.  And only a few months ago, Maryland legislators tried to strip the University of Maryland enviromental clinic of funding when the clinic sued local sacred cow Perdue Farms.

On one hand, attacks on state schools are at least understandable.  Legislators view universities as state agencies and law clinics as state operated law firms.   You can see why legislators would want to keep the state's counsel under tight control.  Of course, law students, law professors, and law schools don't see things this way.  In these tough times, it also becomes easy for legislators to take on a shopper's mentality: if you want our money, you'd better give us the product we want.   The Louisiana story is a bit more nakedly political because legislators are pressuring both public and private schools to behave in certain ways - both by directly limiting the ability of students to practice and by conditioning state money on compliance.  Of course, the federal government engages in this sort of extortion persuasion as well - think Elena Kagan and the whole military recruiting issue.

Academics are rightly worried.   There are potential free speech issues here.  There are academic freedom concerns.  Even if clinics are a different kind of course, they are still classes constructed by professors - and regulation of clinics will take us down a slippery slope of governmental intervention in the curriculum.  All faculty have a stake in this debate.

But we can't hide from the fact that clinics are more than brainstorming sessions.  They are active learning projects designed, in many cases,  to empower marginalized citizens.  I think that's a highly desirable political objective, but it is a political objective.  And the fact that the clinics are using existing law as leverage (and teaching students along the way) does not turn it apolitical. 

In the end, this is  more than just a battle for academic freedom.  It's a political battle to empower poor folks.   Admitting this fact may not make for good sound bites - and thus may be a lousy organizing strategy - but it's true.  And it's a battle well worth fighting.

Comments

[Howard Wasserman]

That we must fight the battle also indicates a major obstacle to adopting a version of the med-school model in law schools. Most clinical opportunities in law are going to be built around representing under-represented groups and causes that are adverse to the government or powerful interests--the very clinics that an opportunistic and self-serving legislature is likely to attack.

[James]

I wonder if the bill would have the effect of prohibiting law school clinics from assisting veterans with their claims against the government for benefits.

[Ben Buchwalter]

To say that university law clinics cannot sue state agencies is problematic for a bunch of reasons. First of all, most of these law clinics are not, as some claim, radical bastions of left-wing angst. Last year, for example, Tulane's environmental law clinic contributed to a major settlement from an oil and gas management company accused of causing a mercury leak. Before that, the clinic helped prevent a power plant's conversion to a petroleum burning facility. This isn't a clinic that's just blowing off steam. It's achieving tangible and important results for the environment.

Also, since when are government-funded entities not allowed to sue the government? A number of red-state attorneys general sued the federal government over health care reform earlier this year. Should they be legally barred from doing so since they're paid by the government? Should the US Attorney General be prohibited from investigating the president?

Louisiana's law would create a dangerous precedent and shield state governments from scrutiny by powerful and effective emerging lawyers.

[John Steele]

My sympathies are with the clinics, and I strongly believe that legislatures should not interfere with ongoing suits.

At the same time, if the academic interests are limited to educating students effectively, the various state legislatures are not seriously interfering with that interest. Clinics can still teach effective lawyering in a variety of ways. The real interference seems to be with the academic interest in pursuing particular political outcomes via litigation. Is that a legitimate academic interest?

[Vladimir]

I completely agree, Dan -- it's well worth fighting for, maybe even resigning over. What's the point of being a law prof, really, if you can't be at a school that can take on important causes? And what a splash mass resignations would make.

Also, Legal Services Corporation v. Velazquez seems right on point here, doesn't it, for the proposition that the legislature can't put strings on the money it gives to legal services organizations (and law schools, by extension), particularly in telling them they can't litigate constitutional claims. Second, how much should law profs put into this battle? It's well worth fighting, yes, but I think it's also worth resigning over. Imagine if 70% of law profs at schools being tinkered with resigned

[Vladimir]

Ooops...scratch that last comment. My "fat finger" slipped and hit post before I finished.

[Howard Wasserman]

John:

It is for clinics. The idea of clinics is to teach through actual representation of actual clients in actual disputes. That is what makes it different from trial advocacy or pretrial litigation or other simulation courses. But if clients don't represent poor and other under-represented clients, often in disputes with government, who else are they going to represent? And if clients cannot pursue the full range of litigation options on behalf of those clients, how are students really learning about client representation? Imagine if a state legislature said med students doing their rotations cannot learn about abortions. It seems to me the same thing is at work here.

[John Steele]

Howard, thanks.

[Ian Weinstein, Prof. of Law and Assoc. Dean for Clinical & Exp. Progs., Fordham Law School]

I would frame the clinical legal education mission as equal access to justice. There are many resources to "empower" those who can afford legal services, although the word really tilts the debate. Those who can afford a lawyer can get access to our courts and be heard in our law making bodies. What happens in those fora is governed by law, which in turn is political but that is a different matter.

I don't think it right or good for legislators to view access to public institutions as a good that should be allocated by the majority without restriction by norm or rule.