Following a request by members of the HLS Federalist Society for a series of explicitly conservative clinics, many commentators and students pointed out the obvious: clinics are not inherently partisan, or ideological, but are designed to be learning experiences for students. Further, they often support indigent clients and can provide a key resource to individuals who might otherwise be unable to receive legal advice.
The Federalist Society Students’ Proposal
Of course, the criticism of the ridiculous proposal is well-founded. Legal support itself is not ideological (if anything, the idea of relying on support from a private, nonprofit institution is a slightly more conservative ideal than having the government run such a service), and as has been pointed out, to fully endorse the idea that supporting the indigent is liberal says the quiet part out loud: if they believe supporting the indigent is against their ideology, they are really saying they do not care about the poor.
The Federalist Society argument has been debunked for multiple reasons. Other students have pointed out that the ostensible missing skill of “administrative law” exists in at least a half a dozen other clinics. The clinics the Federalist Society suggests read like a poorly drafted Republican policy platform, not a well-established set of legal subjects. As Elie Mystal of Above the Law puts it, “The FedSoc has come out with a list of causes, not programs. And that’s because the FedSoc knows, as I know, that the programs that work on their preferred causes are already incredibly well-funded.”
Thus, the Federalist Society argument is frivolous. However, while we’re on the subject of the purpose of clinics, there is a potential issue we should consider.
Notwithstanding the Proposal, What is the Purpose of Clinics?
We should still be careful when thinking about clinical experiences, not from a left-right focus, but from a justice-based focus: The first concern must always be zealously advocating for clients. The importance of this mandate is heightened by the fact that many clients may not have other options beyond law students.
The goal of many clinics, though, appears twofold. Students learn important legal skills in their advocacy for clients, which also helps the clients. Significant support works to ensure that students hold client information in accordance with all ethical guidelines, and all students are supervised. But critically, any thoughtful clinical experience must also recognize that the goal of education for the student may ostensibly conflict with zealous advocacy. One could imagine a scenario where the best litigation strategy may not be the strategy that is the most educationally rigorous. It is possible to simply refuse this hypothetical, but consider, for example, a student may have two cases with very similar facts, and while the most educational experience may be to argue the second case in a new way, the most strenuous advocate may recognize that the best way to win both cases is to argue them in much the same manner, even if the student may learn less about the law in the process. An ethical response, as well as a social justice response would, of course, be to nonetheless use the best defense possible. But students in clinics must confront this idea head-on.
The civil rights and civil liberties of poorer individuals may be at increased risk as they have few options for legal representation. If those of us that participate in clinics and student practice organizations take their representation seriously – which, I would posit, we must – then we must ensure that our representation is as vigorous as possible.
Just as practicing lawyers engaged in social justice must constantly check how they engage their clients — considering, for example, ideas of participatory defense, and other aspects of thoughtful client involvement — so, too, must those engaged in clinics and student practice organizations recognize the purpose of clinics and their importance. While the FedSoc debate is one made purely ideologically and in bad faith, now that we’re considering the purpose of clinics, we must be even more careful in considering other potential conflicts in the goals of clinics. Many lawyers, advocates, clinical instructors, and clinical students consider this every day. That so many of our classmates may so fundamentally misunderstand this reminds us that more work is needed.