Kosuri, P --- "Losing my religion: the place of social justice in clinical legal education" [2012] LegEdDig 20; (2012) 20(2) Legal Education Digest 14

• Losing my religion: the place of social justice in clinical legal education

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Losing my religion: the place of social justice in clinical legal education

P Kosuri

Public Law and Legal Theory Research Paper Series, Research Paper No. #12-23, University of Pennsylvania, 2012, pp 1-14

Many of today’s clinical law faculty members presume that ‘social justice’ should be a fundamental characteristic of any clinical offering. In fact, if you attend a clinical conference, you will hear clinicians proudly extol the social good their clinics do and the audience dutifully applaud this ideology. Rarely, if ever, will you hear any comment about a clinic that does not at least presume social justice. This is understandable on many levels. First, no one wants to be perceived as against ‘doing good’ or helping the underprivileged. Second, the audiences at these conferences tend to be peers of the speakers doing the extolling and themselves conduct similar work. To criticise the social justice component of that work would be anathema, not to mention self-defeating. Social justice, after all, is what the modern clinical movement is based on, and clinicians who criticise that concept would be biting the hand that feeds them.

Without the influx of civil rights and poverty law lawyers into law schools during the late 1960s and 1970s, clinical legal education as we know it would not exist. Those lawyers became the founders of modern clinical education. When they entered the academy, not every law school in the country had a clinical program. There were no Association of American Law Schools (AALS) standards for clinical education.

The national clinical conferences that now draw hundreds of clinicians every year were the size of a couple of schools’ clinical faculties today.

To think about how far clinical legal education has come in forty years is truly a marvel. Much of the credit for that growth and stature goes to the founders and their progeny – a group Professor Stephen Reed has labelled the ‘Great Clinicians’ – who fought for and built the programs from which all clinicians benefit. Social justice was a central tenet to the modern clinical movement. The Great Clinicians brought their fight for civil rights and access to justice from the streets into law schools. Initially they continued to do the same type of work they did in practice but with the assistance of law students, rarely thinking about teaching.

In time, however, the Great Clinicians developed a pedagogy that allowed students to learn more from a clinical experience than they would from simply working at a job. Central to that pedagogy were moral lessons about economic disparity, unequal access to the judicial system, and uneven application of laws. Clinicians ultimately framed the pedagogy as ‘client-centred’ lawyering, requiring preparation, performance, and reflection. The Great Clinicians defined social justice, chose the types of cases their clinics would take, and chose the lessons they would impart to students. Those choices conscribed future clinicians who would enter clinical teaching under their tutelage.

Over the decades, representing the underserved and subordinated operated as the anchor for clinical legal education almost religiously. If the modern clinical movement was the Church, then the Great Clinicians were its clergy. The message was clear: to be a good clinician meant believing in the Great Clinicians’ concept of social justice and inculcating students with that belief. To argue that social justice is not essential to clinical legal education is equivalent to Martin Luther posting his 95 theses to the Castle Church door. Maybe it is time for our Reformation.

When the founders of modern clinical education became law school teachers, they were rebels – iconoclasts that challenged the staid, theoretical world of American law schools. They brought the protests, injustices, and turmoil of the streets into the hallowed halls of law schools. Rather than read about neutered disputes in casebooks, the founders of the modern clinical movement allowed students to experience firsthand the fights going on outside the law school walls.

Initially, this appeal was enough. It reflected the world at that time – activist students working with activist lawyers. Eventually the turmoil in the streets subsided. The fervour that brought forth the clinical movement dissipated. Ford Foundation money that mandated that clinics be socially progressive dried up. But the rebels, the iconoclasts, had become comfortable in their new habitat. They had learned how to teach – something that they had not been trained to do. And they had an army of law students (albeit a relatively small one) to do the work they cared about. Over the next two decades these former rebels turned law professors channelled energy once directed at civil rights advances and law reform efforts toward fighting battles to entrench themselves in the academy. Students who shared their values fought alongside them. The battles achieved varying degrees of success but, in the aggregate, clinics found a permanent place in law schools. They proliferated and became part of the norm.

Those rebels – the Great Clinicians – achieved much of this. But now, they have become the ‘establishment.’ The Great Clinicians no longer challenge the status quo regarding clinical legal education, but rather defend it. They defend their legacy, their sense of social justice, and their niche in the academy. Just as non-clinical faculty like to produce graduates in their image, so do clinical faculty. For the Great Clinicians, that means cultivating social justice lawyers. But the issue is not whether to challenge their accomplishments or their place in history. The issue is whether, in that defence of the past, clinicians are failing multiple segments of students by limiting the types of clinical experiences offered to them.

Though the Great Clinicians would likely not claim that they own all of clinical legal education, they have co-opted it and are in constructive possession of it. They are clinic directors, senior faculty members, and hiring committee chairpersons. They are the gatekeepers to the academy. As a result, there is a self-perpetuating aspect to clinical teachers just as there is for non-clinical teachers: we hire folks that look like us. In the early years, this approach made a lot of sense; there were not very many clinical professors to begin with and the few that did exist needed comrades in arms. Decades of building those ranks with people who shared the ideology, however, has resulted in an intellectual homogeneity.

We assume too much, discuss too little, and dismiss alternative perspectives. Politically, we defend our territory. The Great Clinicians explicitly staked our place in the academy with social justice markers. Movement of those markers or encroachment by foreigners is considered trespass on sacred ground. Clinical faculty fear being displaced. Going forward, however, we must shed that territoriality to enhance our position in the institution by promoting more clinical opportunities.

Law school is first and foremost about educating students. Even though faculty members often use their positions to pursue their own social and political agendas (both inside and outside their institutions), without students, there are no law schools. Thus, the fundamental goal of every law school faculty member should be to educate students as ably as possible. The genius of Christopher Columbus Langdell – appointed Dean of Harvard Law School in 1870 – was not in developing the clinical house began to receive visitors. Where once it drew mostly those who shared the founders’ taste for the wilderness, it then drew people who just wanted to drop in. The visitors had heard that the founders served meals rich in sustenance (much better than the town cafeteria). The founders, however, were not so keen on these new visitors. The founders suspected they were in their house for all the wrong reasons. They wanted the meat, but they didn’t want to drink the punch. The punch, for the founders, was the essential part of the meal. It may be that the clinical community has outgrown a single house.

The case method allowed education of large numbers of students in a methodical and replicable manner. Clinical legal education, on the other hand, is relatively inefficient. It requires more time, more professors, and adds the complexity of real life into the equation. Yet, the return on investment for clinical education, at least to students, is arguably greater than the return acquired through traditional, large, Socratically-taught lecture classes. Almost eighty years after early-20th century scholar and professor Jerome Frank asked Why Not a Clinical Lawyer-School?, experiential learning has begun to permeate doctrinal classrooms. Increasingly, podium faculty are contextualising doctrine by introducing lawyering. This is a great development – much in line with the 2007 Carnegie Report’s urging to better integrate theory and practice. Presumably, incorporation of practical lawyering skills into these courses is done because it enhances students’ education.

Clinical professors must also remember that educating students is the primary goal, and service to clients the second order. Of course, clinicians must maintain their professional responsibility to clients once representation commences. Clinics, however, should let their teaching goals drive client selection, rather than the reverse. Clinical faculty that use clinics as personal legal services firms run the risk of using law school resources for purposes other than the educational mission. Keeping priorities in order mitigates this risk.

To satisfy this educational priority, clinical opportunities should exist for every law student who wants one. The notion that clinics are only for ‘public interest’ students or special factions of students must be abandoned. Every law student should feel welcome in a clinic regardless of ideology, background, or interest. This is not to suggest that most clinicians overtly prevent students who do not share their ideology from enrolling in their clinics, but tacit signals may nevertheless make many students feel uncomfortable with clinics that espouse a different ideology, or worse, fear being judged by professors. More varied perspectives, greater interaction, and more discussion will only lead to profounder understanding of issues, people, and values.

The greatest contribution of clinical legal education is not in creating a haven for public interest-oriented law students or in promoting social justice causes, but rather in a methodology that teaches students how to learn from experience, whatever that experience may be. For 90 years, various groups have called for greater experiential learning opportunities in law schools. In the midst of the greatest economic recession in a generation and a contracting legal marketplace affecting all law schools and every type of law practice, student demand for practical legal training is understandably heightened. Law school administrators are already responding to new pressures by increasing the number of simulation courses and externships. Clinics are the top of the pyramid in terms of experiential learning. Clinicians should embrace this leading role and find ways to bring that superior experience to more students.

In slow economies, students need to develop marketable practice skills. In years past, law firms invested time and money to develop young lawyers who would repay that investment by generating many years of billable hours. Law firms now, however, demand associates who can hit the ground running before they depart to another job, often within the first five years of practice. This change in the market has pushed practical training downstream to law schools.

For law school administrators, simulation courses and externships are far cheaper alternatives to clinics. A clinic, however, offers a richer experience that cannot be replicated by other experiential learning. Clinical pedagogy is the multi-faceted jewel in the crown of clinical legal education. Preparation, performance, and reflection are key elements to any clinical experience regardless of subject-matter. The signature feature of clinical pedagogy is the students’ placement in the primary role of representative, where faculty members use those experiences as focal points for further inquiry. This pedagogy can be applied in any clinical experience and unlocks discussions about varied political, economic, and social issues. Clinical faculty should bring that experience to more students regardless of whether it explicitly includes traditional notions of social justice.

The question is why should law school clinics be the exclusive province of one over the other? One could imagine a slew of law school clinics not rooted in traditional poverty law or social justice issues. Some examples include intellectual property, securities, venture finance, trusts and estates, tax, and bankruptcy. Many of these are related to business, though they may include litigation as well as transactional work. Though ideologically neutral on their face, one could create a social justice agenda to attach to most of these clinics, but the question is why is that necessary?

Scholars often depict the clinical dichotomy as one of skills versus social justice, but this overly simplifies what it is to be a lawyer. Clinicians tend to marry lawyering values with social justice values. This is simply not accurate. There are, for example, a whole host of values activated by the lawyer-client relationship. Any clinic that involves clients will involve lawyering competencies that naturally involve more than technical skills. The question is how those competencies are taught – through social justice cases or some other type of case. Lawyers are taught to zealously advocate for their clients. The professional rules of conduct carefully distinguish a client’s beliefs from that of the lawyer. Yet, to assert that the only values worth holding are social justice values removes the neutral-partisan ethic that is central to the profession.

Furthermore, different approaches and notions of social justice are visible through legal practice. In litigation, there are lawyers on each side of a dispute. One side is often painted as the ‘bad guy’ when, in fact, the conflict is more nuanced. In an ideal world, students would be taught about each perspective. Instead, clinicians tend to champion their own paradigms and values, dismissing alternative views. The notion that if one does not agree with the clinical teacher then he or she is ‘against’ social justice is dogmatic. Instead, both parties may simply have different notions of justice or a different hierarchy of values. For law students, this is an important point. Should the goal of clinical education be to inculcate students so that they see the world the way clinical faculty view it and champion their causes, or should it be to empower students to develop their own understanding of the world and their own values? If the latter, then how must the social justice model be incorporated into clinics?

Most clinicians rightly acknowledge that only a few clinical students will go into public interest careers. As such, most of them are in clinics to learn transferable competencies. Social justice clinics teach many of those competencies, but so can many other types of clinics. Failure to recognise this possibility risks sending a message that the only legitimate clinic is one rooted in social justice, even if another might be a better teaching vehicle.

A venture finance clinic serves as a good example. Setting student practice rules aside, this type of clinic would, on its face, be devoid of traditional social justice issues. Students would represent businesses who are seeking to acquire early stage investment from financial sponsors. The legal work might involve negotiation, document and financial review, and contract drafting. Additionally, students must understand power dynamics between parties, understand various motivations, and learn how to manipulate them to the client’s advantage. A successful representation results in a client receiving funding. This clinic is by and large devoid of social justice. But why is it not a legitimate clinical offering?

What is being taught is much more than ‘skills’. The richness of the experience is not in drafting the agreements, but in learning what motivates people and how to align interests to achieve a desired outcome. Professional ethics are still triggered, though not necessarily in the social justice context. Learning these things in the context of corporate and securities law may in fact benefit a student’s career more than representing a wronged social security beneficiary. Regardless of the clinical context, non-social-justice-oriented clinics should be valid offering for students, thereby allowing them to choose their own pursuits in the clinical arena.

When the modern clinical movement was established, clinicians brought a wide assortment of cases into the clinical fold. Clinics should re-establish that academic freedom. Every clinician should be free to develop teaching objectives and design clinics without mandates about the type of case or a social justice perspective. Schools must set the curriculum so that clinics do not compete or overlap in subject matter, but they should not tell professors what to teach or how to teach it.

Despite how it may appear, I believe in social justice. I even believe that law school clinics should be free to champion social justice causes. In fact, I am firmly engaged in achieving social impact through the work of my clinic – a transactional clinic at the University of Pennsylvania. But, to be clear, when clinical faculty champion a social cause, it is almost always their cause. Law students do not have a say in what it is. My clinic is the only transactional clinic at my institution. As such, I attract students who wish to explore transactional careers in corporate and securities, intellectual property, and tax practices. I must make sure that my focus on social impact does not impede my goal to train and educate great transactional lawyers.

I am not advocating that social justice should be removed from all clinics. Instead, I espouse a more expansive and inclusive view of what clinics can do for law students.

We live in an increasingly factionalised and partisan world. When clinicians champion one world view to the exclusion of another, we are just aiding in that factionalisation. Law schools are meant to allow students to explore competing theories and develop their own ideologies.

Clinics that are intellectually and ideologically diverse further that mission. Clinicians should strive to provide a portfolio of opportunities that appeal to a wide array of students.

In my estimation, law school administrators will begin to pressure clinical programs to expand their offerings to include non-social justice clinics. If clinical programs do not take proactive control over that process, clinical educators risk a schism brought about by a Reformation thrust upon us.