Clinical Discomfort

Peter Wood

Law schools, once upon a time, were pretty serious places. Students enrolled to learn the intellectual discipline and craft of the law, and that’s exactly what they got. These days? It is, let’s say, a mixed picture.

On Monday, the Boston Herald reported on a dust-up involving the Suffolk University Law School. “Have you been abused, brutalized or mistreated by the Boston Police?” asked a flyer bearing the law school’s logo. The patrolman’s union called it “cop-hate baiting at its worst,” and the law school insisted that it had nothing to do with the undertaking. The flyer was the work of some of the law school’s students in collaboration with ACLU and the Boston Black Men’s Leadership Group, who apparently weren’t authorized to use the law school’s logo to advertise the “Police Misconduct Documentation Project” and the “Police Complaint Assistance Project.”

But the incident does draw attention to the activism that is increasingly at the heart of American legal education. The law school in this case was embarrassed only by the over-the-top rhetoric, not the program that gave rise to it:

Suffolk University professor Karen Blum of the Rappaport Law Center—whose pro bono program pairs students with the ACLU to file police-abuse complaints—said the language on the fliers is “regrettable” and had them removed.

“The Police Complaint Assistance Project is not a seminar in how to sue police officers, nor is it meant to be an indictment of the Boston Police Department,’’ Blum said. “The school has removed the fliers because we certainly would not endorse the word brutalized.”

It could be that the Rappaport Law Center is doing some good work. Every community needs to be on guard against authorities who abuse their power. But Professor Blum’s disclaimers somehow don’t sound all that convincing. Why?

A Suffolk Law School professor forwarded to me some pertinent correspondence. Jeffrey J. Pokorak, a professor and the director of clinical programs at Suffolk Law School, addressed Professor Blum but copied the whole faculty, to “applaud your students’ work and I sympathize with your/their current plight.” Citing his experience with yet another activist center at the University, Pokorak faults the Boston Police for their “all-out assault on whomsoever they saw in their path.” But he is happy to see the law school’s hands-off approach:

…the University has indeed come a long way in understanding academic programming (even if controversial) is, in and of itself, the work of the institution and that resisting partisan pressures to squelch student inquiry is antithetical to our raison d’etre.

The syntax is a bit rough, but I think he means that giving in to the police union’s complaints would be “antithetical” to the school’s basic purpose.

Professor Blum meanwhile assured her fellow faculty members that it was all a misunderstanding. Somehow the Police Misconduct Documentation Project (which the University does not endorse) got its rambunctious flyer printed on the back side of a flyer for the much less controversial Police Complaint Project (which Professor Blum oversees). The latter doesn’t deal with police brutality, but just helps citizens file “internal complaints against the police.”

The chutzpah of this self-exculpation deserves a moment of quiet contemplation. Those silly police officers and newpaper reporters who imagined that the two sides of a flyer had some connection to each other!

I come to this story not because it represents some egregious departure from law school norms but because, to the contrary, of how ordinary it is. It is ordinary in two ways:  ordinary in the hard-left politicization of the law school curriculum and ordinary in the rush to get students into practical application of their legal skills before they have actually mastered the law.

On the latter, the Police Complaint Project is one of myriad instances in which law schools these days pursue what is called a “clinical approach.” The idea that students learn better by hands-on work, of course, isn’t new to education at any level, but it is an odd fit with law schools, which were established in the first place on the argument that the old apprenticeship approach (think Abraham Lincoln) was too unreliable a foundation for the growing complexities of the law. Education in the law, said the reformers of a century ago, requires systematic instruction in doctrine, principles, and legal reasoning.

The wheel has turned. We now have law schools that have diluted that rigorous approach in favor of helping clients, albeit under the watchful eyes of faculty members. The faculty members who pursue this approach have their own organization, the Clinical Legal Education Association, which in turn has its own ethos, captured in this except from a letter sent last fall by CLEA president Robert Kuehn to the chairman of the American Bar Association’s Standards Review Committee:

Second, and more specific to clinical legal education, the Committee has entirely disregarded without any discussion the role that ABA accreditation has played historically in pushing reluctant schools to develop and integrate professional skills training and clinical legal education into their curricula. The ABA had considerable success in this regard, despite the overwhelming capture of law school governance by faculty members whose scholarly work and teaching do not reflect a practice orientation and many of whom lack experience as a lawyer. Every time the ABA (or any organization) has studied legal education, the same deficiencies are apparent: There is too much focus on and repetition of cognitive skills of legal analysis and to too little teaching of other lawyering skills that will prepare students for the ethical and effective practice of law.

I am not sure that this clinical emphasis is an entirely bad thing, but I certainly register the complaints of senior legal practitioners to the effect that today’s law-school graduates just aren’t sufficiently grounded in the law. The National Association of Scholars’ quarterly journal, Academic Questions, is devoting its June issue to law schools. One of the contributors views this turn to “criminal and quasi-criminal clinics” as contributing to the “crowding out of instruction in core legal doctrine.”

The hard-left politicization of law schools is surely the larger matter. Walter Olson’s new book, Schools for Misrule:  Legal Academia and an Overlawyered America, covers the matter so well that I don’t see much to add. Nonetheless, law school faculty members are not about to stop in their apparent quest to alienate the law from common sense and common decency. I see, for example, that a group called ClassCrits is holding a conference in September at American University on “Criminalizing Economic Inequality.” It concerns the way the law is used to privilege free markets and to “enforce economic policy” against the interests of illegal aliens, the homeless, and those whose enterprise involves the sale of heroin, cocaine, etc.

I don’t see a straight line between the ClassCrits and the folks at Suffolk University Law School who run the Police Complaint Assistance Project, but I do see convergent perspectives. Both are expressions of a worldview in which the law as it stands is typically an instrument of oppression, a billy club in the hands of an ill-disposed adversary. The urgent task is to disarm this brute so as to protect the weak and the innocent. That is the noble calling of the law student in his clinic, as much as the law professor in his radical chic conference.

The promoters of this worldview take it very seriously but, for all that, promoting it isn’t a serious use of legal education. The world is a dangerous place. We need the rule of law, and for that we need people who understand it thoroughly and who are committed to it. What we are increasingly getting instead are expensive workshops in how to manufacture social grievances.

This article originally appeared on April 28, 2011 on the Chronicle of Higher Education's Innovations blog.

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