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Heather MacDonald on Law School Clinical Education:

Readers may be interested in Heather MacDonald's sure-to-be-controversial article on law school clinical education in the latest issue of the City Journal.

This is an expanded version of her Wall Street Journal column on the topic last week.

anon) (mail):
She is just trolling the lay folk. But lay people buy this crap, which makes it all the move funny.

Ironically, most of the suggestions she has for how clinics could be more, "conservative" I guess, are completely taken care of by the free market.

I think she makes a lot of stuff up, such as that police departments, settle, rather than litigate false arrest claims.

Having defended police departments myself, I can say that having a bunch of law students around would not change anyone's decision regarding whether to settle. These cases are settled on the basis of what the various parties think the law is, and nobody is afraid to litigate them. (But if it makes people feel any better, a few law firms are try to earn political brownie points by representing some cities, for free, in excessive force cases.)

Like it or not, there is not much litigation on behalf of "victims." To the extent that the rights of the "victims" matter, it is a job for the government. Law schools can, and, in fact, give students credit for working at prosecutor's offices. But because she is trolling the lay people, she omits this.

She also seems to think that a law school could represent teachers, schools, and the like better than a state attorney general.

Small business owners don't need charity.

Property rights are a more difficult issue, but, she doesn't seem to appreciate the magnitude of litigating a difficult takings case, anyway. (Most run-of-the-mill eminent domain issues are well-served by the free market, since attorneys fees are often available, anyway.)
1.16.2006 5:56pm
Joe Viola (mail):
Wait, does MacDonald seriously assert that racial discrimination no longer exists in the United States?

"Today, not only does virtually no major American institution discriminate against racial minorities; all fiercely compete with one another to admit or hire as many minorities as possible, using preferences and double standards to do so."

I mean, for example, are the police a major American institution? This simply baffles me.
1.16.2006 6:15pm
Jutblogger (www):
This reads like the lawyer's version of "Atlas Shrugged".

Clinic law profs are all James Taggarts!!!!

To blame clinics on bad rulings and judicial activism, is well, both flattery and tom-foolery.
1.16.2006 6:20pm
really:
Sometimes small business do, indeed, need "charity." I belive here are at least two clinics in the country that help poor people start their own businesses -- one at the University of Chicago, and one at the University of San Diego School of Law.
1.16.2006 6:32pm
Harriet Miers' Law Partner:
I do think there is an issue in clinical education that should be discussed but rarely is: is it fair to require a three-year education for students who essentially begin the practice of law in their second year thru these programs? Perhaps we should revisit the concept of the J.D., and redesign the curriculum/degree progam to require roughly 18 months for those seeking to primarily practice in a public interest/litigation setting, and another 18 months for those who want to eventually become law professors.
1.16.2006 6:34pm
anon) (mail):
Most schools don't require 3Ls to participate in clinics.
1.16.2006 6:37pm
John Jenkins (mail):
As a conservative who actually worked in his law school's indigent defense clinic, I think Macdonald is nuts. It's the *least* liberal wing of the law school, in part because there's no time for the sanctimony. We had real clients who needed real representation and couldn't afford it themselves. Our only criteria were financial and whether the case might prove interesting and useful as a learning tool. There were no politics to it.

I don't know about other schools, but at mine most of the tenured faculty can't get far enough from the clinic for their liking as they resent the fact of the funding it takes away from them. The same went for the civil clinic with which we shared offices, which dealt mainly with low-dollar civil claims, divorces and custody matters.
1.16.2006 6:43pm
Steve Lubet (mail):
Northwestern has both a Small Business Opportunity Clinic and a Shareholder Protection Clinic.
1.16.2006 7:44pm
anon) (mail):
Steve, I suspect that a Sharehold protection clinic isn't "free market" enough for the author. There are a lot of other clinics out there that to good work. Low income housing clinics (some of which assist tenants in buying their homes). Tax clinics have mixed results (in part because the IRS funds them under the condition that their funding not be used to try cases outside the Tax Court's S-case procedure -- so no appeals, no District Courts, and not Ct. Fed. Cl.).

John, You hit on a good point. Contrary to what the lay people think, the practice of law is hard and it is not about ideology. It is about understanding complex bodies of law and f***ed up fact patterns. People that pound the table about how "liberal" or "conservative" they are are not practicing. They are just grandstanding. MacDonald got the idea that she could troll the lay people by making them think that students just learn how to say silly platitudes in clinics. Whatever. She is a bimbo.
1.16.2006 8:50pm
Scott Moss (mail) (www):
Clinics also vary more than Macdonald says. I have no conceptual problem with the NYU / Wash. U. model, but other schools do it very differently, in a way Macdonald would find it hard to criticize.

UCLA's well-regarded clinical program, for example, is far less ideologically driven. Their focus is "skills education" rather than "delivery of legal services," the model that focuses on providing services to the poor. So UCLA offers courses like "depositions," "interviewing and counseling," etc. -- a very nonideological, skills-based curriculum.

Of course, noting that clinics vary widely wouldn't suit Macdonald's purposes. She's the equivalent of the newspaper columnists who cite the McDonald's coffee verdict as evidence that lawsuits of all kinds need to be deterred, capped, etc.
1.16.2006 9:34pm
VC Reader:
I don't know if my experience is typical, but I participated in a clinic that had a decidedly conservative bent (we assisted attorneys in researching and writing briefs in high profile con law cases). My law school also has a low-income tax payer clinic. From my relatively limited interaction with the tax professors and students, my impression is that they are moderates or right of center. Also, I know that the Institute for Justice (libertarian public interest law firm) runs a clinic at the U of C. There seems to be a growing group of conservative and libertarian public interest law firms and as those groups expand I would assume that the availability of conservative clinic opportunities would also expand (when the firms realize that there is an almost unending amount of free legal researchers available in the form of law students).
1.16.2006 9:54pm
David M. Nieporent (www):
Regardless of whether MacDonald's portrayal is right or wrong, I think many of the above comments miss a large part of the point she's getting at. Yes, she thinks that helping small businesses is a good cause. Yes, she apparently thinks that defending cities against false arrest claims is a good cause. But a large part of her point is that it would have educational value to the law student. (Which some people need -- for instance, the poster above who dismisses the idea of representing small businesses by handwavingly saying, "Small business owners don't need charity.") After all, educational value for law students is the ultimate purpose of these clinics.
1.16.2006 10:24pm
John Jenkins (mail):
DMN, I don't know that we're missing the point at all. I was in a clinic. It was all about learning to try a case and then actually doing it. Those *are* the skills the clinic promises and the skills are largely non-ideological (I would make the obvious point that even if the clinics were liberal, intimate association with the arguments of one's ideological opponents is very helpful when refuting them, even necessary. If Macdonald's point is that it'd indoctrinating, well, if you're in law school and not independent minded enough to recognize indoctrination and reject it, there are other issues present). Given small budgets, clinics must apply themselves where that money can be best spent, and typically that's serving underserved portions of the population thereby serving the purposes of education and the public service obligation of the university. If that's too liberal for some, well, open your own.
1.16.2006 10:42pm
David M. Nieporent (www):
Given small budgets, clinics must apply themselves where that money can be best spent, and typically that's serving underserved portions of the population thereby serving the purposes of education and the public service obligation of the university.
What if someone thinks that "public service" could best be performed not by trying to overturn the juvenile death penalty, as one clinic boasts it participated in accomplishing, but by (to use one of MacDonald's examples) trying to protect landlords and tenants from other tenants?
If that's too liberal for some, well, open your own.
Is "open your own" the only option? Is there something wrong with trying to convince other people that their clinics should change their orientation? What if those clinics are actually part of public universities' law schools? Is there something wrong with trying to influence the policies of a public institution?


Look:
1) Many clinics are neutral, skills-oriented clinics with no agenda.
2) Many clinics have a bias, but represent real clients with real problems.
3) Some clinics have an agenda, and essentially represent causes ("reform," "social justice," etc.) rather than clients.

It is that third group that MacDonald is primarily attacking; she is also arguing that the second group might serve students better if there were options to represent clients on different sides of the aisle, instead of (for instance) assuming that all tenants deserve representation but all landlords should have to fend for themselves.
1.16.2006 11:54pm
Brian G (mail) (www):
I'm sure what she says is 100% accurate. However, I think she might (without looking at every clinic in the country) be using the most egregious examples to overgeneralize.

I am a 2L at U of New Mexico Law and clinic is required for all. I am in a clinic called Economic Development that is expanding into tax areas to help low-income individuals and small businesses, as well as start up 501(c)(3)s. Here is the quick summary of the cases that I am dealing with, all carried over from previous semesters and students:
- Representing Grandparents in the adoption of their granddaughter (I'll have been in clinic 13 days and will already appear in court next week)
- Negotiating repayment for a Social Security overpayment
- Trying to get an insurance company to pay a woman with MS. They refuse despite her having a Social Security Disability Award
- Showing that a juvenile completed all terms of probation and getting his record cleared
- Helping a startup 501(c)(3) get rolling.

I don't see any of Ms. MacDonald's examples borne out in that list. I, as well as all the other clinics at our school, are doing good work for individuals who need help. Like I said, while I am sure there is substance to her arguments, they certainly don't apply to my school.
1.16.2006 11:57pm
Jacob Lister (mail):
I think MacDonald ignores the fact that many of the individual cases tried at clinics might actually be conservative (whatever that means). What about "victim's rights" of gay/lesbian people who were beaten by their partner? Or trying to recover wages owed to illegal immigrants for their labor?

I'm in a clinic right now, and I have to agree with John Jenkins. There's nothing particularly ideological about learning to try a case and then doing it. And those are (probably) the vast majority of clinic cases, regardless of the sample that MacDonald presents.
1.17.2006 12:06am
David M. Nieporent (www):
Just to be clear: if the anti-MacDonald argument is simply, "Most law school clinics are non-ideological, skills-oriented programs," I have no quarrel with that rebuttal. She clearly picked the most egregious examples, and made no effort to show that they were typical of clinical programs.
1.17.2006 12:29am
gr (www):

She clearly picked the most egregious examples, and made no effort to show that they were typical of clinical programs.


Besides generic language ("law school clinics are stuck in the sixties"; "this is the legal mainstream") by which she sweeps in all clinical programs under her argument. She's clearly making a general argument about all law schools, just from the headline, subheading, and first sentence.

At least in the city journal article.
1.17.2006 1:21am
Public_Defender:
MacDonald begs not to be taken seriously when, in the third paragraph, she argues that, clinics fight to "allow[] female murderers to beat the rap by claiming 'battered women's syndrome. . . .'"

Yeah, it's "beating the rap" to be allowed to argue to the jury that you had no viable choice but to defend yourself. Prosecutors are still allowed to present evidence that the woman had viable choices and that her actions were unreasonable.
1.17.2006 5:09am
Dustin R. Ridgeway (mail):
Forgive me for derailing this excellent discussion, but if anyone has ever read Ms. MacDonald's book "The Burden of Bad Ideas", knows she specializes in highlighting 'egregrious examples' and hyperbolizing to the extent of their prevalence &extent. She's an agenda activist posing as an intellectual; excepting her stoic Randian disposition, she is no different than your average cable news pundit.
1.17.2006 8:47am
Freder Frederson (mail):
Her arguments are just ridiculous. I went to an urban law school in Atlanta and one semester of clinics were required and available starting with 2Ls. Most people took as many as they could and they were very popular. The ideological and practice areas were broad and varied from the DA and public defenders office to the IRS and the EPA and state agencies on the government side to death penalty defense on private advocacy groups. If you couldn't find something that didn't fit your ideological viewpoint then you were truly way off in right (or left) field.
1.17.2006 9:16am
JohnAnnArbor:
"Hyperbolizing"?
1.17.2006 9:51am
howvan:
The University of Akron has a small business legal clinic where students do the things that MacDonald wishes they would. This is in addition to the civil litigation clinic and jail programs.
1.17.2006 10:45am
Tyrone Slothrop (mail) (www):
She clearly picked the most egregious examples, and made no effort to show that they were typical of clinical programs.

She also makes hay by pointing to clinics' mission statements. I was in a particularly worthwhile clinic in law school, and have no idea what the mission statement said. Who cares?

In many instances, MacDonald seems to propose that clinical students should not be pursuing litigation (e.g., certain sorts of class actions) aimed at vindicating clients' legal rights because that litigation does not fit with the public policy she thinks best. This is a very odd criticism of law school clinics. One could criticize just about any practioner on this ground, including the largest law firms, so why pick on clinics? We don't expect rich corporations to forego their rights under the law in these circumstances, so why those who must turn to clinics?
1.17.2006 11:49am
Eric Muller (www):
I'm puzzled by the post's description of the article as "sure-to-be-controversial." Things are controversial only to the extent that they are taken seriously. Does Todd Zywicki think that the ideas in this Coulter-esque smear of clinical education deserve to be taken seriously? Why?
1.17.2006 12:06pm
Mr Diablo:
When I read MacDonald's drivel in last week's WSJ, after I was able to take the pen from my hand and elect not to write a letter to the editor (given how the WSJ treats its letter writers who disagree, I knew better once I cooled off), I was hoping someone on Volokh.com would pick up on this one.

That said, it is great to see her efforts to pretend the extreme is mainstream and the general structure of her argument so thoroughly debunked. Huzzah! I did two clinics in law school -- and I don't understand how lobbying for a correct benefit assessment of a sick two year old who clearly deserved SSDI is liberal or conservative. Our mission statement I think said something about making sure those who deserved health care got it... so I'm certain that MacDonald would have labeled it some kind of socialist indoctrination program, when really it was helping poor, sick kids. (If anyone accuses me of having MacDonald Derangement Syndrome, that's fine, given her own deranged look at clinical law programs, I'm happy to suffer from it.)
1.17.2006 12:07pm
Roger (mail):
Yes. I think that Todd Zywicki thinks that her ideas are to be taken seriously.
1.17.2006 12:54pm
C.J.Colucci (mail):
Most legal clinics exist for 2 purposes: (1) to give students experience in practical skills and (2) to serve the legal needs of people who can't pay the freight. Inevitably, this second purpose creates something that might look like a leftish bias because of who can and who can't pay the freight. By and large, profit-making businesses and state and local governments can and do pay for lawyers to represent their interests. The State of New York, for example, pays me a decent, if hardly princely, salary to defend its interests against people who claim (sometimes accurately) that it has mistreated them, often people represented by clinics or the public interest bar. There's no reason you couldn't create a legal clinic in which law students take on cases such as the ones I defend, and if some law school wants to hire me to do that I'll be happy to oblige. I'm not sure our office would want to complicate its mission bu farming out cases to law students, but it might.
Small business advice clinics? Sounds like a good idea. Apparently there are several more than HMcD thought, and if someone wants to work up a proposal, it might be well received.
1.17.2006 1:11pm
Roger (mail):
Does anyone think (besides Zywicki) that this girl is not an ill-informed clown ?

Seriously, I am sort of curious about how she maps various legal theories on to her simplistic political map. After thinking about her idiotic comments I think it is a neat piece of political gymnastics. After all, most of us know that just about all areas of law, if practiced well enough are challenging and require a large skill-set, so knowledge gained in once clinic can usually be applied in other contexts.

For instance:

  • Representing criminal defendants is "liberal." I guess she figures that "conservative" people think that poor people don't deserve a defense. Likewise, being arguing that juries can be told about various defenses is, I guess, "liberal" because conservatives want to limit the admission of evidence at trials ?


  • Representing taxpayers and small businesses is "conservative." I guess she thinks that "liberals" don't pay taxes or start businesses, and that "conservatives" can't afford to pay $300 for advice given by a law student. (I wonder if she is referring to regulatory practice and getting pre-transaction rulings from agencies, which is very common in low income housing matters (which are usually drive by people with money because of various tax incentives), but often resembles litigation.)


  • Representing government agencies or the employees that have been sued is "conservative." I don't get it. If a cop is sued for activities that take place in the scope of his employment, his employer will attempt to defend him (and they are generally responsible for damages). They don't hold an election to see if the cop is popular or not.


  • All litigation regarding government benefits is "liberal." I guess this means that screwed over veterans are a bunch of treacherous liberals who hate America. A conservative, I guess, wouldn't ask for any kind of government largess.


  • Property rights are always "conservative" issues. Except if it comes to rent restrictions. Liberals don't own homes, and if they do, they don't care if the state can take them via eminent domain, or seize stuff from them.


  • Litigation before all courts is liberal. Conservatives don't appear in court but rather work out their differences through social skilled banter at country clubs.


  • Litigation regarding first amendment issues is liberal. No conservative or religious viewpoint has ever been oppressed. Indeed, America has always had great tolerance for all religions. Especially the Mormons and Scientolgists.
  • 1.17.2006 2:26pm
    CaDan (mail):
    Could TFA have any more scare quotes?
    1.17.2006 11:33pm
    Joe B:
    Among the other inadequacies, misrepresentations, and mischaracterizations in MacDonald's piece, she totally misses the boat on small business clinics, which are actually pretty common across the country. The Chicago one is probably the best-known, but we've had one here at Yale (bastion of litigation-oriented activism in MacDonald's model) for years. Just pop the phrase "small business legal clinic" into Google and you'll get hits for Penn, GWU, Northwestern, Temple, Columbia, Harvard, NCCU, MSU, Tennessee ... and so on.

    But, of course, Mrs. MacDonald doesn't appear to actually care about advancing the cause of these clinics or the small business owners and entrepreneurs they represent. Her shrill attack does harm to those she claims to support, and mischaracterizes those she opposes.
    1.18.2006 1:01pm