Schools for Misrule — and a bleg on law school clinics

by Walter Olson on February 18, 2010

If blogging has been lighter than usual, one reason is that I’ve been racing forward on my new book on law schools and their influence, tentatively entitled Schools for Misrule: Legal Academia and an Overlawyered America, which is in the catalogue for Winter/Spring (a year hence) from Encounter Books. I reached first draft in December and am rapidly whipping that rough copy into something closer to final shape.

My original nickname for the book was Ten Bad Ideas from the Law Schools — and How They Changed The World. We decided to go with something a little more dignified, but the book still tries to answer the underlying question of why so many bad ideas — and certain kinds of bad ideas, especially — keep emerging from the law schools. Along the way it looks at some sociological and political angles, such as why modern liberal-left leadership so often is formed in the elite law school milieu (Barack Obama, Bill and Hillary Clinton, etc.) Then it takes up a series of issues — from institutional reform litigation and school finance to slavery reparations and international law — in which legal academia has led campaigns to challenge and redefine the nature of government sovereignty, with consequences that have been usually unforeseen and sometimes calamitous.

I’ll be blogging more on all those points over the coming year, but in the mean time I’ve got a request (“bleg” = blog request, or begging post) for this site’s well-informed readers. One of my chapters takes up the now-ubiquitous phenomenon of law school clinics in which students represent outside clients, sometimes in “cause” litigation and sometimes not. I trace the origins of this movement (a big philanthropic push from the Ford Foundation made the difference), the resistance it met from law-school traditionalists and its eventual triumph, as well as some of its present-day manifestations, which are not always those foreseen by the circa-1970 visionaries who started the programs. The chapter is pretty good as is, I think, but I’d like to add a little more illustrative detail about the clinics, especially vignettes from the early years shedding light on what it was expected they would accomplish in changing society (a subject that isn’t as well documented on the web as I’d like). Responses can be made in comments or by email to editor – at – overlawyered – dot – com. (And, yes, I’ve already read Heather Mac Donald’s interesting City Journal critique and some of the responses it provoked.) (& welcome Instapundit readers. Numerous good emails from readers already).

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PointOfLaw Forum
02.18.10 at 11:50 am

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1 shg 02.18.10 at 12:11 pm

There are two independent problems. One is ideological, which really doesn’t come as much of a surprise as clinics fill the niche of underserved populations. It’s almost definitional that these populations favor liberal causes. Business people, for the most part, aren’t looking to clinics for help. They want real lawyers.

Which brings us to the second problem, that these are not lawyers but students trying to learn to be lawyers. Much as law firms complain about the inadequacies of legal education in the failure to produce new lawyers who are competent to practice, they aren’t any more competent before they graduate. Yet, we put real people’s lives in their hands? Is filling a niche poorly better than not filling it at all? While we hear the anecdotal stories of successes, we hear little to nothing of the failures. Would students even recognize a failed defense that could have been successful if they were competent? Will lawprofs admit that students under their care did a lousy, incompetent job?

Perhaps a solution would be having adjuncts, rather than ideologically-bound/theoretically-inclined lawprofs run these clinics, or have the clinical students work under practicing lawyers rather than out of a professor run clinic. But while the concept of clinics for the purpose of exposing students to nuts and bolts lawyers sounds fine, no competent lawyer would watch these kids in action and say that what they are doing is good lawyering, as much as we might like to do so.

2 Titus 02.18.10 at 3:00 pm

I actually just finished a stint at my top-25 law school’s clinic. I was actually in an estate-preparation section, so I didn’t have quite the same experience as most clinic students. My main complaint was that the professor was still of the same mold, though: he hated everything about traditional probate law and will drafting and was little more than a mummified relic from the 1970s. One of the other clinic profs, however, reveled in her title as the clinic “expert on stiffing creditors.” Seems there’s a fine line somewhere between zealous advocacy for the poor and promotion of the immoral avoidance of entirely just claims for the payment of valid debts.

As for law schools generally, it’s a self-sustaining system. Powerful profs, lawyers, and judges decided several decades ago that the way the law worked was Wrong and Nonsense, and so they ushered the old rules out the back door and brought in their shiny new Interest Analyses, Balancing Tests, and Policy Considerations. The cases and articles presenting favorable views of the older system based on Following the Rules and Being a Decent Human Being are read now, if at all, only for the purpose of being the subject of shallow ridicule. Then the next generation of attorneys comes in looking down at such rules, the social order they grew out of, and the analytical method of legal reasoning used in them. The cycle continues.

3 Thomas 02.18.10 at 3:23 pm

shg, 1, adjuncts do run these clinics, and 2, there are lots of businesses that need legal advice but lack the ability to pay for it. It can be difficult for someone with little capital to start a business; assistance with organization and assorted start-up activities (leases, regulatory requirements, employment law issues, etc.) would surely be appreciated, and, in most cases, if not provided for free by a clinic wouldn’t be provided at all.

4 Joe Blow 02.18.10 at 3:25 pm

Having served as counsel for both private and government victims of “cause” litigation clinics, I find their normal litigation tactics nothing short of malicious. In discovery, or in the earlier portions of it on the government side (sunshine act, FOIA), the students are all too happy to request “all records pertaining to [extremely broad topic.]” They do so not realizing (one hopes) that this question requires either a shut-down-the-business effort to produce the documents, or a protracted round of pre-discovery litigation in which defense counsel tries to convince the little buggers to narrow the request just a bit, as “all records pertaining to [extremely broad topic],” if treated seriously, means “all the records my client’s business possesses. Assuming this method of discovery is intentional – not improbable since I’ve seen it many times – then it’s a particularly odious form of Torture by Litigation, using free law student labor to generally make life miserable for disfavored corporate or government entities.

I think probate and crim law clinics make a lot of sense. Cause clinics? Only if you’re advancing Alinsky’s cause.

5 joerg knipprath 02.18.10 at 3:33 pm

As a rare non-Left constitutional law professor at an urban law school that recently has gone on a clinic-founding spree, I am at the center of this vortex, though the liberalism of our faculty is less a loud storm than it is a permeating smog. Having raised some hackles with my own musings about the pedagogical follies of legal education and the ideologically-driven assumptions about the role and meaning of law, I very much look forward to your book. Every beam of light shined on the unsustainable current model of legal education does the public (and, in the end, the students) great service.

6 gbrown 02.18.10 at 4:12 pm

When I was in law school in the mid 70’s there were only two clinical programs: the prosecutorial clinic and the legal aid and defender society. Both programs started at the beginning of the second year, and third year students were permitted to appear in court under the supervision of regularly admitted attorneys for the state and the defense. The programs were devoted exclusively to the defense and prosecution of felony offenses in the judicial circuit in which the school was located. The prosecutorial clinic operated from the district attorney’s office with the director, who was a university employee, being an assistant district attorney. The legal aid clinic employed several attorneys, all university employees, who handled almost the entire indigent defense for the circuit. The students who participated in the legal aid program were more ideologically liberal than those in the prosecutorial clinic, but both programs were devoted to developing litigation skills as opposed to issue advocacy. The prosecutorial clinic may now exist in some form, but it ceased being run from the district attorney’s office many years ago. I have heard no mention of a legal aid clinic in a very long time.

7 wfjag 02.18.10 at 4:57 pm

I somewhat like the proposed title of your book. But, it’s a bit pretentious and so would put off a lot of lay readers — which is the audience you need to reach if you intend to see any reforms. I suggest a different title: Lawyers: “Neither do they reap, nor do they sow.” * Then follow with your title as a subtitle.

* Obviously not a phrase of which I claim to be the original author.

8 PKL 02.19.10 at 2:48 am

The Clinic Negative Feedback Loop:

1. Law schools started adding clinics when the cry from employers and students for more practical education became too loud to ignore.

2. Since most tenure-track law profs had little practice experience, the schools hired new people — but fought like hell to keep them off the tenure track.

3. The instructors most valuable to a clinic — experienced practitioners looking to transition into academia — are likely to seek other employment once they realize they’ll be treated as second-class citizens.

4. The people who, status issues notwithstanding, opt to teach clinics are often second-rate or fiercely ideological.

5. The original problem — not enough practical education — is not solved.

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