Further Reflections on Professor Moyn and Clinical Legal Education

Professor Samuel Moyn has written an engaging critique of legal education, one that impresses upon us members of the legal academy a vital task of self-scrutiny that has already generated waves of reaction and commentary.  Indeed, his piece lays bare a deep chasm of alienation in legal education.  As he points out, many students seek out elite legal education in order to change the world, lift up their fellow citizens, and seek justice; yet so many of them end up, in Professor Moyn’s words, discovering too late that they have “enroll[ed] in a trade school to solve other people’s legal problems for (often tremendous) pay.”  What damningly accurate words.

In the course of his critique, Professor Moyn describes legal clinics as complicit in this alienation.  He seems to understand clinical legal education as an opportunity for students to engage in a semester of feel-good but low-impact noblesse oblige before accepting a job – a profession? no, a job – that is all noblesse and no oblige.  As such, he questions “whether the clinical revolution is actually about changing the world.” Answering in the negative, he characterizes clinical legal education as an “increasingly routine” system in which students learn that “systemic reform” merely means getting a sympathetic judge to rule in favor of one’s client.  And he worries about the absence of law school pedagogies aimed at “inculcating in their students and in the public a critical attitude toward the operations of the rule of law.”

These words lay bare, in my view, a far-too-small conception of what clinical legal education is – or at least what it can be. 

The work of many clinical law professors – certainly those with whom I am privileged to work at Northwestern University Pritzker School of Law – can represent the noblest reaches of our profession.  Like our doctrinal colleagues, our work often embraces theory, scholarship, research, data, the asking of Big Questions – but it also leverages all those things in service of broad-scale systemic change.  It is the place where theory turns into practice, where Big Questions can yield Big Answers.  At its best, the legal clinic can serve as a crucible of intellectual testing; it is the intersection of the mind and the hand.

The work of my clinical colleagues exemplifies this truth. Yes, almost all of us represent individual clients who are embroiled in real cases. This is good and just work.  But for so many of my colleagues, those cases are also vehicles for systemic change.  My colleagues and their students don’t simply secure sentence reductions for juvenile clients who have been sentenced to life without the possibility of parole; rather, they use those cases to drive successful and highly interdisciplinary efforts before the United States Supreme Court to outlaw extreme sentences for children.  They don’t simply get innocent people out of prison; rather, they use those cases to push for reunderstandings of the constitutional voluntariness doctrine that are newly grounded on cutting-edge psychological research about the dynamics of interrogation.  They don’t simply represent inmates who were unjustly condemned to solitary confinement; rather, they undertake multidisciplinary and high-level appellate efforts to outlaw solitary confinement altogether.  They don’t simply represent clients on death row; rather, they use these cases to underscore the arbitrariness of the death penalty and the risks of executing the innocent in furtherance of a nationwide, even global, abolition effort. So, in my view, to worry that law clinics do not change the world – to fret that they do not engage law students in our shared professional obligation to think critically about the law and ensure that it is administered justly – is to misunderstand what clinical education is and can be.

Indeed, it is this conception of clinical education that drew me to it as a career.  This is not work that could be done anywhere else.  Non-profit organizations of all stripes do impressive work, but legal clinics function and exist in a world of scholarship and research in a way that even the finest non-profit attorneys, a step removed from the academic sphere, do not.  By opting into the university community of ideas, clinical educators rightly become different – not better than, but different – from practitioners.  We are scholar-practitioners.  I freely recognize that clinicians may not describe themselves as such – that some of my clinical colleagues are unwilling to promote their scholarly qualities, perhaps (and I conjecture here) out of a fear of rejection by doctrinal colleagues; but when I look at the work of my clinical colleagues – writing articles on the founders’ original view of solitary confinement, publishing psychological studies on the impact of interrogation techniques on children, authoring textbooks on public corruption and entrepreneurship law, and then convincing courts and lawmakers to adopt their ideas through their practice -- I see brilliant scholarship that informs and strengthens the pursuit of justice.  We simply don’t speak about ourselves that way.  This is to the detriment of our institutions as well as ourselves.

The reader will also note that, in contrast to Professor Moyn’s concerns, clinical work hardly fetishizes judges. Yes, much of our work is done in courtrooms. We teach our students, however, to understand the lawyer as the driver of change, not the judge.  Behind every groundbreaking judicial opinion stands a lawyer who briefed that judge; and the best briefs stand themselves on decades of research and thought and debate, all actualized in one (often carefully chosen) case or controversy.  But clinical work, importantly, also extends past courtrooms.  Most wrongful convictions clinics, for instance, don’t just exonerate individual prisoners, one after another, in unthinking and rote fashion; rather, they collaborate with police to change investigative practices; with prosecutors to reform charging procedures; with psychologists to understand how better to protect vulnerable persons in the legal system; with forensic scientists to improve the epistemology and diagnosticity of the courtroom; with legislatures to implement new rules guarding against wrongful convictions; and with countless other actors.  In au courant speak, they tackle the problem from a systems-design perspective.  From Big Questions, in the best legal clinics, flow Big Answers.

The real glory of clinical practice, however, lies in its ability to teach students how to change the world – while simultaneously promoting democratic ideals.  For a law student inclined to feelings of elitism, there can be no better shock to the system than sitting across a table from a prison inmate, evicted person, or impoverished mother – talking with him or her for hours, laughing at her jokes, recognizing a common humanity, and perhaps even learning something about what it means to weep, to endure, to hope, to be fully human.  What a democratizing influence indeed, this clinical system that allows those whom society will charge with the tending and guarding of our democratic ideals such opportunities to confront and embrace the humanity in their fellow citizens. What a place to learn to be a lawyer.

Admittedly, this picture is rosy.  Does this work wipe clean other sins of the institution, whatever they may be?  No.  Does it solve the problem of students feeling pressured, for financial or cultural-cache reasons, to pursue jobs that they may not have intended to pursue at the outset of law school?  Certainly not.  On that front, the best solution we have devised, though it may be imperfect, is to continue working with our alumni as partners on our various projects on a pro bono basis.  When I collaborate with our alumni – which my colleagues and I have done many times – I never leave the experience feeling as though they volunteered for extra unpaid work out of some sense of noblesse oblige.  Rather – just as though they were still the green law applicants of yesterday – it’s clear that our alumni still want to change the world; they still want to lift up their fellow man; they still seek justice.  They understand that as lawyers, they can – they should – they must do this work, in whatever capacity they can, for as long as they can, against the backdrop of whatever financial reality confronts them.  For them, clinical legal education imparted at least a degree of what Professor Moyn calls a “transformative commitment.”  This commitment can be built more, expanded more, bettered in countless ways.  But clinical legal education – at least as I see it around me at Northwestern – has given legal educators a powerful start on the task that Professor Moyn has set for us.

 

Comments

[Hedley Lamarr, Car Wreck Counselor at Law, 1-800-BIG CASH NOW]

The issue is not whether any lawyer can make some sort of "change." Standing at the bench and advocating the constitutional rights and liberties of a client (fellow citizen) is what it's all about. An attorney is a walking embodiment and represents government, democracy, liberty, the rule of law in one package. When President Obama said, "Change has come," that was the perfect sentiment. HE was the embodiment of change...The representation of change was important in an abstract sense, whether he changed anything in a concrete way is up for discussion.

[Patrick S. O'Donnell]

On clinical legal education and other pedagogical possibilities and forms of praxis that might inspire and enable “transformative commitment” among would-be lawyers, please see, first: https://www.religiousleftlaw.com/2012/06/toward-a-manifesto-of-inspiration-for-a-peoples-law-school.html

And: https://www.religiousleftlaw.com/2016/08/a-motley-manifesto-for-a-peoples-law-school.html

[Doug Richmond]

I am unsure about the statement that "many students seek out elite legal education in order to change the world, lift up their fellow citizens, and seek justice." How many is "many"? I think it equally likely that "many"--perhaps even most--students who seek out elite legal education do so because (1) it leads to better professional opportunities upon graduation; and (2) it seems to be ingrained in "many" young men and women that you should attend the best school that will admit you.

[Law Professor John Banzhaf]

Professor Moyn is probably correct in concluding that most law school clinics and clinical assignments do not really and fundamentally change the world, lift up their fellow citizens, and seek justice.

But neither his article nor the critique seem to acknowledge that law students can partake of a clinical education in ordinary substantive-classroom courses and that, for many reasons, such non-clinic clinical projects have - and clearly have the potential to - fundamentally changed the world.

My law students, for example, started two major public health movements: the nonsmokers' rights movement of banning smoking in public places, work places, and even in private dwellings both here and abroad; and the fat-law-suit movement (with more than a dozen successful cases to date), showing that legal actions may have as much effect on our nation's second most important public health problem (obesity) as I have helped to make it have against the most important such problem (smoking).

Students in my class in Legal Activism (a/k/a/ "Sue the Bastards"), in which students learn how to be public interest lawyers capable of changing the world by bringing their own legal actions, helped to obtain disclosure of fats on most store-bought foods, brought the famous SCRAP case which helped to establish legal standing for organizations to challenge actions harming the environment, outlawed in several jurisdiction the common practice of charging women more than men to launder shirts, forced Agnew to return the money he took in bribes, obtained stronger warnings on birth control pills as well as safety standards for school buses, established that the FTC has the power to impose corrective advertising, and much much more.

For more information on providing clinical ("experiential") legal education without the many problems and limitations of conventional law school clinics, see:
TRY CLINICAL COURSES WITHOUT CLIENTS https://bit.ly/2f7p7lT

For additional examples of how law students can bring and win world-changing legal actions, see:
THE LAW PROFESSOR BEHIND ASH, SOUP, PUMP, AND CRASH https://bit.ly/2VgzV1o
MOVE OVER RALPH NADER, BANZHAF'S BANDITS RIDE AGAIN https://bit.ly/2Q9ZD46