Paul L. Caron

Wednesday, January 6, 2016

McGinnis:  How Law Schools Can Fix The One-Sided Pursuit Of 'Social Justice' Through Clinics

ClinicJohn O. McGinnis (Northwestern), Should Law Schools Pursue “Social Justice”?:

Many, if not most, law schools proclaim that they will advance “social justice.” My own law school recently pledged to use part of the generous 100 million dollar gift from the Pritzkers to do just that. Generally the pursuit of such justice is done through clinics, which represent clients, but have larger objectives in their choice of representation, such as ending the death penalty, protecting rent control, or increasing environmental regulation. A commitment to social justice creates some tensions with the ideal of a university as a place of open inquiry.

First, clinics are enterprises of political action. But the essence of a university is the production of ideas, and political aims are not easily made compatible with purely intellectual ones. ... Moreover, as activists, clinicians will likely move a school toward more activism if they can vote on its direction. Certainly if they are able to vote on tenured appointments for the research faculty, as they can at some schools, one might fear that their interest in activism would detract from the political neutrality of the principles by which scholarship should be judged.

The second problem  is that there is disagreement about the nature of social justice, but law schools tend to define it from one perspective–that of the left.  Indeed, the term social justice might be regarded itself  as ideologically loaded. Libertarians, for instance, might think that justice is always individual justice. But, in any event, one can disagree about the justice of the death penalty or rent control.   Few, if any clinics however, are devoted to defending the death penalty or representing the families of homicide victims or deregulating the economy. The one-sided nature of social justice pursued also has an adverse effect on the intellectual atmosphere. The research faculty at the typical law school leans decidedly left to begin with, but the largely uniform left inflection of social justice clinics makes for an even more insular ideological climate.

To correct this latter problem, I have a modest proposal. On any controversial matter where clinics will be pursuing social justice, a law school should establish two clinics. Thus, if there is a clinic whose focus is on representing those charged with death penalty, there should be another to represent murder victims to help them make victim impact statements. If there is a clinic representing tenants, there should be another representing small landlords. Cases could be chosen to avoid direct conflict. Such a dual focus would reduce the politicization of legal education and be pedagogically useful as well. Students could be encouraged to participate in the clinic that went against the grain of their social justice priors. Such an education might actually stretch their minds rather than close them.

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"Isn't every major law firm and k-street lobbying firm trying to deregulate the economy?"

No. Big business often promotes regulation, since regulation typically serves to restrain competition.

Posted by: Mike Petrik | Jan 8, 2016 9:38:32 AM

I don’t know anything about landlord/tenant clinics (or that area of law), but I do know something about the clinics in my own field, criminal law. Many, if not most, of the clinics in this area represent individuals against what is often an overbearing government action. That is fundamentally a conservative enterprise. The most prominent clinic at the author's own school, the Center on Wrongful Convictions, is premised on a conservative fundamental: That government bureaucracies too often make mincemeat of individual rights and liberties. And what would the counterpart clinic be, as he suggests? A Center FOR Wrongful Convictions?

My own school has a mix of clinics, which includes a religious liberty clinic and a misdemeanor clinic. However, it is hard to characterize any of them as clearly “liberal” or “conservative.” One, for example, assists federal prisoners in pursuing Section 1983 actions against the government. This, at some level, might be seen as bleeding-heart liberalism. Just don’t tell that to the conservative Reagan-administration veteran who runs it, and does so with feet firmly planted in conservative ideals that begin with a refusal to accept “trust us– we’re the government.”

Posted by: Mark Osler | Jan 8, 2016 9:02:46 AM

"Few, if any clinics however, are devoted to defending the death penalty or representing the families of homicide victims or deregulating the economy. "

Isn't representing the families of homicide victims the job of the prosecutors office and the police?

Isn't every major law firm and k-street lobbying firm trying to deregulate the economy?

I agree that law schools shouldn't be vehicles for politically charged crusaders, but they are operating in a world where one side already has excellent, well funded advocates.

The only clients who are going to walk into a law school clinics are the ones who can't afford real lawyers.

Posted by: Left wing clinics? | Jan 7, 2016 9:41:15 PM

Have their been any lawsuit challenges to New York State's "pro bono" requirement for new Bar admissions, which acts as a "draft" for "Social Justice Warriors" to staff the otherwise unsustainable SJW infrastructure ?

Posted by: geTaylor | Jan 7, 2016 11:35:06 AM

And where precisely is the money going to come from (at schools other than those who've secured nine-figure gifts or already have massive endowments) to establish two different flavors of each and every clinic?

Posted by: Anon | Jan 6, 2016 2:22:40 PM

Because of the broad umbrella that has come to encompass "social justice," I shutter when it is mentioned. Feeding the hungry, clothing and housing the poor, and providing pro bono legal services for the under-served are all things which few would fail to support. However, it's time to point out that no human on earth - except ideally under the law - is equal to another and I'm tired of everybody being offended and not being responsible for their own lives and the results of bad decisions. Good luck with changing the tide of this tsunami.

Posted by: Tom N. | Jan 6, 2016 1:27:08 PM

Great idea, but one correction:
the largely uniform left [inflection] "infection" of social justice clinics makes for an even more insular ideological climate.

When I was in law school I approached our clinical advisor about finding a clinic option that was not blatantly progressive/social justice oriented. There were 2 options - the small business clinic and a housing clinic representing tenants.

Posted by: Todd | Jan 6, 2016 1:14:03 PM