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November|December 2002
Sounding Off By Emily Bazelon
Last Words By Brendan I. Koerner
Clinical Anxiety By Daphne Eviatar

Clinical Anxiety

Rebellious lawyers are shaking up law school clinics.

By Daphne Eviatar

When Mike Wishnie, a New York University law professor, heard that immigrants seriously injured in factory jobs were waiting up to ten years for their workers' compensation benefits, he considered how he could help. He and the students in his immigrants' rights clinic could represent each worker individually, but that wouldn't solve the underlying problem. They could represent a group of workers against the state in federal court, but that would mean long and complicated litigation. They could lobby to change the law (which some students eventually did), but that might not help workers who'd already been hurt.

Then Wishnie hit upon another idea: Under a little-used side agreement to the North American Free Trade Agreement, the clinic could file a claim against New York for failing to enforce its labor laws. Although a NAFTA petition would take far longer than one to a local court, it would be the first such claim against a U.S. state—a good way to call attention to the case and boost organizing efforts by local community groups.

Last fall, a teaching fellow from the clinic flew to Mexico City along with two workers and representatives of four different community groups. They filed a petition and held a press conference on the steps of the National Administrative Office of Mexico. Back in New York, the community groups followed with a boisterous demonstration, spawning a flurry of newspaper articles about their novel claim.

It's hard not to admire such creative uses of the law. But they're not what law school clinics were designed to do. When American law schools began setting up clinics in significant numbers in the 1960s, the idea was to teach law students the basics of legal practice by having them handle cases for low-income clients. Under a seasoned lawyer's supervision, students would represent, say, a tenant fighting an eviction notice or a disabled person filing for Social Security benefits. The cases were about solving someone's run-of-the-mill legal problem, not making headlines.

And the instructors had little in common with their academic colleagues. Often relegated to law school basements, most clinical law professors were longtime legal-aid lawyers who had come to the university after decades in the trenches of housing, family, or criminal court. They arrived at law schools committed to teaching students the value of one-case-at-a-time lawyering for the poor.

Wishnie is part of a new breed. He was hired a few years out of law school following a Supreme Court clerkship and two prestigious fellowships, and he and others like him are blurring the old distinctions between "academic" faculty who write and teach about the theory of law and "clinicians" who devote themselves to its practice. Increasingly, clinical professors, after years of lobbying for equal status in the legal academy, are joining the tenure track. That means that in addition to supervising students and their cases, they're expected to publish academic articles. Wishnie has devoted himself to exploring theories of immigrants' constitutional rights. Others have created a new genre of academic writing focused on clinical pedagogy and lawyer-client relationships.

Not surprisingly, the ideas that clinical professors now generate are seeping into their conception of effective legal practice and changing their approach as clinicians. Although clinics have always fought large institutions and filed precedent-setting cases, such work is increasingly assuming center stage. The case-by-case work of representing one person with an average problem has come to seem commonplace and ineffective; sometimes litigation itself is even discredited as giving lawyers power at their clients' expense.

At Wishnie's clinic, which he started with veteran professor Nancy Morawetz, students do handle individual cases. But they're also required to work on projects like helping local immigrant organizations lead protests, lobby for new laws, and get media attention. "We're supporting grassroots activism," the 36-year-old Wishnie said recently, looking boyish in faded jeans and sandals in his NYU office, where a framed photo of Malcolm X stands out on a bookshelf. "We can do much broader work here than in legal services"—the legal-aid offices that handle many individual cases for the poor. Such beliefs are changing the face of clinical education—for better and for worse.

Clinicians are activists on a mission. To many of them, clinical legal education is a progressive "movement," not unlike civil rights or feminism. Clinicians believe their job is "teaching social justice" and "democratizing the legal culture," as Stephen Wizner, who has taught at Yale for 32 years, put it. Skills like writing a brief, conducting a deposition, or arguing in court are useful by-products. But at heart, clinics are "about teaching lawyers obligations to the poor," said Jane Aiken, who teaches at Washington University in St. Louis.

Given their fervor, clinicians tend to be well-versed in the history of the clinics, which dates back more than a century. At the turn of the last century, small groups of law students, struck by the poverty around them and eager to test their new skills, began offering legal advice to the poor. But the academy didn't consider making this activity part of the curriculum until the late 1910s, when some professors and judges who were concerned that law schools had become too theoretical began arguing that legal education should better relate to the practice of law.

That notion was a natural outgrowth of the developing school of thought known as Legal Realism, which looked beyond the legal principles in judicial opinions to their political and historical context. The Realists rejected the previous view of law as a self-contained philosophical enterprise.

Feeding students a diet of abstract principles, the Realists believed, was not likely to make them the most effective lawyers. Judge Jerome Frank used this argument to advocate for clinical education in a 1933 law review article still cited with reverence in "the movement" today. "Is it not plain," Frank asked, that "the law schools should once more get in intimate contact with what clients need and with what courts and lawyers actually do?"

Yet for decades, proponents of clinical education met with strong opposition from law school faculty members who feared their exalted institutions would be reduced to trade schools if they launched clinics. Although a few clinics were started in the 1940s, it wasn't until the mid-1960s that the majority of schools finally heeded the call to expand the reach of law schools outside the academy. With the civil rights movement exploding around them and the War on Poverty giving rise to the first federally funded support of legal assistance for the poor, law students and some left-leaning professors insisted that the time had come to make representing real clients a standard part of the curriculum.

With the help of a series of Ford Foundation grants, the number of clinics had grown exponentially by the early 1970s. Gary Bellow, one of the movement's pioneers, developed a clinical program at Harvard in 1972 that became a model for many early law school clinics. Aimed both at providing experience for students and serving large numbers of the Boston area's poor, the program grew into a set of thriving legal-services offices, staffed by students and lawyer-supervisors, eventually serving as many as 4,000 clients a year.

But while popular with students, clinics remained at the margins of the legal academy. Then, a decade ago, the American Bar Association released what became known as the McCrate Report. Produced with the help of clinicians, the report concluded that much of American legal education was badly out of touch with the profession. Law schools weren't teaching students the essential "skills and values" a lawyer needs to fulfill the essential mission to "enhance the capacity of law and legal institutions to do justice." The report gave a significant boost to the clinical movement. Today, almost all of the 182 U.S. law schools offer in-house clinics, which together are staffed by more than 1,400 instructors and generate as much as three million hours of volunteer student legal work each year.

Still, despite their growing numbers, clinical professors have remained suspect in the eyes of many academic professors—some of whom practiced little or no law themselves. "The assumption was always that [clinicians] couldn't compete with the academic rigor of the rest of the faculty," said Wallace Mlyniec, an associate dean of clinical legal studies at Georgetown.

Trailing behind their peers in prestige, job security, and salaries, clinicians have agitated for improved standing. In 1996, the ABA responded by firming up its requirement that law schools offer clinicians a form of job security "reasonably similar" to academic tenure. Some of the law schools best known for their clinical programs—Georgetown, NYU, and Washington University, for example—now give some of their clinical faculty the same tenure privileges offered to other professors.

At other schools, like Yale, clinical faculty can earn comparable salaries and security, but have virtually no say in critical law school decisions like hiring and promotion of academic teachers, and play only an advisory role in the hiring of clinicians. Less generous are law schools like Columbia and Michigan, which at best offer clinicians long-term contracts. Harvard, talked about among the top schools for maintaining the old distinctions, treats most clinical instructors as contract attorneys denied even the title of professor. This practice is now uncommon, though. Full academic tenure, once a rarity for clinical faculty, is on the rise.

Although they've fought hard for higher status, some tenured clinicians are not entirely at ease with the results. As their clout has increased, so has the pressure to meet the same standards as their ivory tower counterparts by publishing articles in law reviews. "We are the victims of our own successes," said Ian Weinstein, one of a handful of tenured clinical professors at Fordham University Law School. "My traditional colleagues are supportive of clinical education, but they still look to publishing as the gold standard for evaluating a faculty member's contribution to the legal academy."

Publications usually aren't a prerequisite for a clinical teaching job. But by the time a clinician comes up for tenure, she'd better have credentials comparable to other tenure applicants, down to published law review articles, preferably discussing legal theory and doctrine.

Enter Mike Wishnie. When he interviewed for a job at NYU, Wishnie was asked to explain why he'd spent his time as a law student juggling roles in three clinics instead of writing law review notes (his Supreme Court clerkship notwithstanding). Wishnie got the message. In four years, he has published two of his own law review articles, has coauthored two more, and has another two forthcoming.

But not all young professors can pull off doing research and writing while supervising a clinic—and it's not clear they should have to. "Many clinicians come without the equivalent background and experience in writing," said Weinstein. "We've then asked them to compete with those who have devoted most of their careers to it." It may make no more sense to evaluate clinical professors for their success at publishing articles than it would to demand that academic professors prove their prowess as litigators.

Even at schools that don't offer tenure, new hires must prove they can publish. Robert Lancaster, hired last year at Indiana University's law school, reported that each of the six schools where he interviewed asked him to give a "job talk"—a presentation about a piece of scholarship he was working on. Although Lancaster presented a work-in-progress, his year-round workload of cases and supervision hasn't left him time to complete and publish an article.

Clinical faculty members in the past who managed to cobble together the time to write often had their work rejected by traditional law reviews. In 1994, Randy Hertz, a staunch movement advocate and the director of NYU's clinics, started the Clinical Law Review. It's no accident that the journal is edited by clinical professors rather than by students, who staff most journals in the legal academy. Students who run law reviews tend not to enroll in clinics, and traditionally they've been less than hospitable to clinicians' writing.

The Clinical Law Review has dramatically increased the amount of clinic-generated scholarship. But it hasn't resolved the turmoil created by the new demands. At last year's annual conference on clinical education, panels sported titles like "The Good, the Bad, and the Ugly: Clinical Education and 'Traditional' Legal Scholarship" and "Are Clients Increasingly Obsolete in Clinical Legal Education?"

The social justice agenda of the clinical movement has helped to inspire generations of law graduates to take low-paying jobs representing poor people. Most of that work follows the one-case-at-a-time model that clinicians used to follow. If the pressure to publish moves clinics and their teachers away from that focus, how will that affect the next generation of lawyers?

The most obvious problem posed by the obligation to publish is the drain on time. Since most law schools don't give clinical professors semesters or summers off or paid research assistance, some faculty members make time to write by reducing their caseloads or substituting simulations for practice with real clients. "If clinicians want to be recognized as legitimate members of an academic community, they have to write," Wizner said. "But some who write a lot get drawn away from supervision of students and representation of low-income clients."

An increasing number of clinics no longer take cases at all. Instead, they farm out students to a local legal-aid office, where they're supervised by staff attorneys who may or may not be good teachers. The practice allows clinics to reach far more students than they used to. But to Peter Joy, a clinical professor at Washington University, "The downside is the quality control of the learning experience for students."

The need to write isn't just changing how clinical professors spend their time—it's changing how and what they teach. If the visionary of old was Harvard's Gary Bellow, today's prophet is Gerald Lopez. In 1992, while teaching at Stanford, Lopez wrote Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice.

Lopez argued that the traditional legal-services model does a disservice to the very groups it is trying to help by squelching community activism. By assuming the roles of "preeminent problem-solver" and "political hero," lawyers exclude clients from shaping solutions to their problems and narrow those solutions to what courts can provide. Widely recognized, the book has inspired a body of scholarship building on Lopez's theories and an annual student-run "Rebellious Lawyering" conference at Yale Law School.

Now at NYU, Lopez teaches a community outreach and organizing clinic that does not represent any individual clients. Asked how he decides what his students will do, Lopez responded: "I pick projects for me, or because you're my friend and you say, 'Will you help me?' If I think it's good training, I'll put my students on it."

Lopez's view of good training is expansive. This summer, about 80 volunteers, mostly college students, worked for him for free, conducting a telephone survey of 2,000 people in low-income communities, asking them about their problems and how they're trying to solve them. He sends his law students into inner-city neighborhoods to interview social service organizations to find out what they're doing to help. "As activists, we should have been doing this all along," he said, claiming that studies like his are essential for lawyers who work with poor people. "This is second nature to management and business schools."

Perhaps, but to what extent does Lopez's approach fulfill one of the original intentions of clinical education—preparing students to practice law? To many professors, group representation comes at the cost of learning to represent an individual client, a fundamental purpose of clinical education. "There's a loss in students' not seeing a case through from the beginning to end, being the primary client contact and developing that relationship," said David Chavkin, a clinical professor at American University. Jane Aiken, whose clinic represents individual women and children, pointed out that one-on-one work teaches students what it means to be obligated to a client. "My experience is that students have had so little experience being responsible for other people that that experience is really substantive," she said.

Outside the academy, some legal-aid lawyers see clinics like Lopez's and Wishnie's as elitist, despite their grass-roots aims. "There are enough academics disassociated from the real world in law schools," said Danny Greenberg, the president of the Legal Aid Society of New York and a former director of Harvard Law School's clinics. "Elite law schools often send the message that you have to be important. If you're going to be important, you should [go to] the [American] Civil Liberties Union or somewhere like that where you get your name in the papers, not Legal Aid. I think the more elite the law school is, the more important that the cases students do not be elite cases."

So far, the new clinicians haven't persuaded many public-interest lawyers that the new scholarship is relevant. "Nobody in legal services reads law reviews," said Alan Houseman, who began in legal services in 1968 and now directs the Center for Law and Social Policy in Washington, D.C. "Nobody wants to hear a clinician talk about a great theory that has nothing to do with how you run a program.... They want to know, how do you get this or that done?"

But some long-time clinicians believe it's best to offer students a range of options. "Our definition of lawyering skills has broadened," said Randy Hertz. "Now, to be an effective public-interest lawyer, you need to have legislative drafting and organizing skills and know how to use the media." Though Hertz admits that most public-interest lawyers outside the academy still don't approach their work in that way, he hopes recent graduates will take what they've learned into the field.

In some places, that's happening. On an afternoon at Make the Road by Walking, a community organizing group in the Brooklyn neighborhood of Bushwick, parents waited for assistance as their children chased each other around the roomy storefront office. A brightly colored mural was splashed across one wall. It depicted demonstrators holding up a placard that proclaimed "Communidad Justicia." Bulletin boards were covered with news clips about the organization's work and fliers explaining welfare rights.

Oona Chaterjee and Andrew Friedman started Make the Road in 1997, when they were students in NYU's public policy clinic. Impressed by books like Rebellious Lawyering as well as Paolo Freire's Pedagogy of the Oppressed, they gathered Bushwick residents for discussion with the help of a local pastor. The meetings turned into an organizing campaign that forced the city to provide Spanish translations in welfare offices. Now the group organizes local residents to combat problems concerning immigration, housing, and employment. While some legal services are offered, organizing is the focus.

Chaterjee, who is 30, spends most of her time helping local youth improve their high schools and protest the expansion of juvenile jails. Asked how her legal education has helped her, she responded that it was most useful as a start-up tool. "Law students can apply for fellowships and design their own projects," she said, referring to the variety of one- and two-year public-interest fellowship grants available to graduates. "It was also useful for fundraising because law school is a somewhat challenging thing to take on and people believe when you graduate you can complete something." And for her work now? "At the moment I don't do that much legal stuff. It would probably be more useful if I was a teacher."

Which brings us back to the question of what law schools should be teaching. Supporters of the new clinics believe they offer a higher form of education that integrates the theories that clinicians are developing with teaching and practice. Publishing demands have brought clinical professors closer to the theoretical heart—and power center—of the legal academy. But they've also had the unintended effect of radicalizing what clinicians teach.

The most radical clinics are so keen on upending the traditional lawyer-client relationship that they're devaluing the lawyer's role as a learned counselor with the skills to solve clients' problems. Theory-driven clinical instructors are having their students take on work once done by social workers and neighborhood church leaders. In some situations, that may be a useful expansion of the lawyer's role, but it's often something different. As clinicians climb the rungs of the law school ladder, they're increasingly adopting the academy's scorn for traditional legal practice.

Daphne Eviatar, a New York-based writer and lawyer, is a contributing editor at The American Lawyer.

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