Yale's Samuel Moyn Does Not Understand Legal Clinics [UPDATED with Moyn's responses to tweets]

Yale’s Samuel Moyn has examined the nature of elite law schools and finds them lacking in virtue.  His recent essay in the Chronicle of Higher Education, titled “Law Schools Are Bad for Democracy,” laments in its subtitle that they “whitewash the grubby scramble for power.” There is nothing new in Moyn’s observation that that “large numbers of students entering law school say that they hope to work in the public interest, but then end up working for large firms instead.” Oddly, however, he proceeds to fasten this phenomenon on public interest law. No kidding. Moyn says, “the students themselves are transformed the most, especially when they accept a set of beliefs about how the world is likeliest to change — through a politics of marginal legal reform by insiders to the system.”

Law school clinics, according to Moyn, only magnify the problem:

To take one example among many, consider the clinical revolution that has transformed American law schools. Today, unlike just a few decades ago, almost no students are interested in high theory as a mode of (or a rationalization for) elite training. Instead, they sign up in droves for clinics that provide access to social-justice practice. The schools call it “experiential learning.” Students might try to get people out of jail or bring a case to an international human-rights court.

Rarely asked, however, is whether the clinical revolution is actually about changing the world. For individuals, it might help provide an alibi for the grubby scramble for advantage. If your social-justice work harmonizes so easily with elite credentialing for power and wealth, is it good for society? Or even for you? One can question the institution’s rationalizations, too. Clinical activism can serve to launder and legitimate injustice. Before it was censured by its community for celebrating the nomination of its alumnus, Yale Law School praised itself for the work of its clinics in litigating the travel ban, even though Kavanaugh got his seat on a court that ratified President Trump’s policy. On balance, what was gained? Students got a stint fighting evil, and the school got a press release, but it is not obvious that much self-congratulation is in order.

The creditable desire among students for hands-on experience in law schools typically reinforces a familiar but troubling image of how lawyers can make change: by convincing judges to do the right thing.

I don’t know where Moyn gets his information – he teaches in the areas of human rights and twentieth century European moral and political theory – but every clinician I know spends a good deal of time considering the social impact of their work, and none of them are concerned with alibis or grubby scrambles, much less laundering injustice.

There is plenty of valid criticism of law schools in Moyn’s essay, but his own elitism still shines through even as he bemoans careerism in others. “With an increasingly Trumpified federal judiciary,” he writes, “it is harder to believe that there will be many silver linings in lower courts’ rulings. Even as strategic legal activism explodes among conservatives, it becomes more and more difficult for others to pretend that the system produces enough liberal results to justify learning to eke them out.”

In other words, only the federal judiciary counts. Perhaps that is the view from Yale, where alumni are routinely appointed to the federal bench, but legal clinics overwhelmingly do their work in state courts. Moyn seems concerned only with the highest profile cases – such as seeking injunctions against executive orders – but law school clinicians spend most of their days in far less exalted environs.

Are they changing the world? Are they obtaining sufficient liberal results to justify their existence? In just the past week, Northwestern’s Bluhm Legal Clinic reported two exceptional outcomes in the Illinois courts. In one case, clinic lawyers and students obtained the parole of a man who had been incarcerated for 48 years after his murder conviction at age 18. In the other, lawyers and students obtained a “certificate of innocence” for a man who had spent 24 years in prison on a wrongful conviction (in Illinois, a “certificate of innocence” is a necessary predicate for financial compensation, even after a conviction has been reversed). 

In both cases, as in countless others, former students continued their work long after graduation – not because they were seeking alibis, but because they were truly dedicated to the client’s cause. Those are just recent examples at Northwestern; they could be multiplied many times over, easily a hundredfold across the clinical world, in the course of a single year.

Like too many non-clinical law professors, Moyn seems to disdain the work of clinicians, writing “in their increasingly routine clinical self-assignments, students are taught that systemic reform comes, if at all, through seeking friendly judges who will not merely reproduce injustice in an otherwise hostile environment.” He thus appears rather unaware of the actual work in clinics, much less the life-long impact that clinical education has on many students. I began my law school career in Northwestern’s clinic, although I transitioned to the research faculty in the late 1980s. Moyn, however, seems never to have practiced law in any setting (judging from his Yale bio and Wikipedia page).

There is considerable value in much of Moyn’s critique. Law schools, as he says, place too much emphasis on thinking “about the law from the perspective of the judiciary,” and may well need “to pivot away from judicially oriented activism to make room for a new kind of engagement with the public.” Law schools would also benefit from becoming “idea factories for legislative reform,” but that is something legal clinics – including, for example, Northwestern’s Children and Family Justice Center – have been doing for decades.

Sure, law schools exploit their clinics by touting public service accomplishments while more quietly serving the needs of large, private law firms. Clinical teachers at many schools are underpaid and afforded far less job security than research faculty, which Moyn does not mention.

Moyn may believe that he has a better plan for changing the world, and perhaps he does. But his ultimate goal of demystifying “law’s disservice to the interests of ordinary people” is actually being achieved in legal clinics every day.

 

UPDATE: A number of Yale clinicians and students have tweeted comments similar to my post, to which he has replied.  For example, Prof. Marisol Orihuela tweeted:

Come spend some time across the hallway! This piece reads like you don’t know our clinics or our clinical students.

And in my brief experience in clinical education, both clinicians and clinical students explore the limits of the law in social change, and are motivated, at times, by other goals, including moral ones

At the very least, clinical educators are grappling, often, with the questions that you frame as "rarely asked."

Moyn replied (to Orihuela and other tweets):

I’m sure you’re right. The piece is more about the psychological/spiritual functions of clinics for students, regardless of instructor intent.

And without preempting due criticism, let me repeat that this piece isn’t about clinics, except (explicitly) as a passing example of how people in elite settings have to grapple with their consciences.

The piece isn't about clinics; two grafs are -- and those two grafs aren't about complacency but definitely would be disproved if the rise of clinics were shown to have put a dent in public interest drift. I haven't seen evidence of change over time in this regard.

I would like to give Moyn the benefit of the doubt, and I am sure he has good intentions, but a straight up apology would have carried a lot more weight. As is, his responses are unsatisfactory. For example, clinics are more than a "passing example" in his article; clinics are the only curricular example. Comparable critiques about conscience grappling could be made about legal history classes (his field) or law and economics (a dominant discipline), but instead he focused on one of  the most vulnerable programs at the law school. Nor did he devote only "two grafs" to clinics. I quoted from three paragraphs, and there were other references (implicit and explicit) as well. I guess it could be said that the piece was "about the psychological/spiritual functions of clinics for students," if by that he means alibis, grubby scrambles, and laundering injustice -- all of which are insulting and inaccurate.

Comments

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

This guy strikes me as never having seen the inside of a courtroom or practiced a day in his career. Every time a lawyer files her appearance and stands up in a courtroom for a client, it is justice and democracy in action. Several clinics in my jurisdiction supervise Rule 7-11 law students in actual, real criminal and juvenile courts.

If you were idealistic and wanted to pursue Constitutional Law work (4th, 5th and 6th Amendment and occasional 1st Amendment thrown in) ,a few years back, one could earn a somewhat modest living if they maintained a volume criminal/traffic practice. Problem today is the grotesque over saturation of attorneys pursuing that model and its immediate cash flow. The problem is not power or lack of idealism. Clients know its a buyers market and will go to the next guy down the list for $50 dollars less. All these PI guys used to feed me work...not any more. They need the money now.

[Alice Ristroph]

I think you’ve missed Moyn’s point, if I’ve understood his point correctly. He’s not making a criticism of clinical faculty or of the work that law school clinics do for their clients. As I read his piece, he’s identifying a function that clinics perform for their institutional hosts: they help elite institutions to sustain and reproduce various forms of hierarchy by assuaging the troubled consciences of some members of those institutions. If the consciences remained troubled, they might demand more radical change than clinics themselves can achieve. This institutional function of clinics is not inconsistent with other functions that clinics may serve, and thus Moyn’s argument just isn’t undermined by your observations about the good that clinics do for their clients, or about the admirable commitment of many clinical faculty.

[Alanigolanski]

Prof Ristroph's interpretation would make for a tight thesis, and likely does reflect what Prof Moyn has mostly intended. However, a closer reading of his text doesn't fully correspond to that interpretation. He does question "whether the clinical revolution is actually about changing the world," which at the least is ambiguous about whether it questions the participants' characteristics as opposed, or in addition, to those of their elite institutional hosts. But the reference becomes less ambiguous immediately after: "For individuals, [clinic work] might provide an alibi for the grubby scramble for advance," & in the next sentence identifying those "individuals" as the ones doing the "social-justice work." I have a feeling, though, that Moyn will refine his thesis, perhaps not cleanly presented here, to align more closely w/ Ristroph's construction.

[Legal writing prof]

Moyn is correct - his piece is not about clinics, but he has used the example of clinics as a convenient whipping boy for his thesis. While it's clear he doesn't think much of clinics generally (and that underscores his own eliteness!), his larger moral dilemma as pointed out by Prof. Ristroph above, is something law schools and lawyers have wrestled with for years. It's not a new idea.

However, by making clinics his example, he does present the notion that clinics are conveniently being used as fronts (and if they add no value even worse!) for hypocrites in elite schools who want to make themselves feel better about maintaining their eliteness (meaning, keeping their virtual gated community in tact).

[Alani Golanski]

This particular piece by Moyn impracticably assigns law schools too much work, regardless of motivating ideals. The "moral dilemma" he identifies is best directed toward higher, graduate & post-grad education generally -- what used to be & is elsewhere embodied in the "youth movement." Law school, like law generally, lags the people's democratic and social justice & equality movements. Moyn elsewhere advocates salvaging the good in liberal institutions while culling the bad, yet here unfortunately fails to sufficiently acknowledge the good in actual social justice initiatives w/in law schools (clinical stuff, e.g.). Moyn's objections to undemocratic judicial review are well taken; but, again, as a practical matter, the idea of law schools' "taking up the duty" of deflating the law grad's "exaltation of the judiciary" needs to be fleshed out in a way that's a bit more sensitive to the young lawyer's (from 200+ law schools) real life dilemmas.

[Douglas Levene]

I disagree entirely with the notion that law schools should attempt to direct students into one area of practice or another according to the political goals of the faculty. Students have agency and are highly motivated to seek out practice opportunities that meet their personal interests and ambitions. The best that law schools can do is offer a range of classes and clinical opportunities so students can make up their own minds about what they want to do.

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

^^^Agreed. However, if you graduated from a middle tier school during one of the Republican recessions (1990-92 Bush 1)(2001-2003 and 2007-2009 Bush II) you took any legal gig that was available to you. These were the first recessions that the legal profession was not immune. Thousands of lawyers did not have the luxury of "doing what they wanted to do." Me included. My buddy graduated during the Reagan recession and was short changed too.