A further defense of human rights clinics

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Last month, Chicago law professor Eric Posner launched an ill-conceived attack on law school human rights clinics; on my usual blog at EarthRights International (ERI), I wrote a response. (Prof. Posner is the son of Judge Posner, who’s been around these pages a lot recently.) More recently, over at Opinio Juris, Hofstra law professor Julian Ku echoes some of Posner’s argument: sure, he thinks that Posner’s argument “sweeps a bit too broadly,” but he accepts the critique that broad-based human rights clinics “risk becoming a platform for pure political advocacy,” which is “undesirable.”

In Ku’s mind, narrowly-focused clinics such as asylum clinics that may have some international human rights element in them are acceptable, while more broadly-focused clinics – those that employ the range of strategies used by actual human rights lawyers – might be appropriate, depending “on the particular situation of the law school and the goals of its students.”

Despite my earlier response to Posner, there’s more to say here, because Ku’s addition points up further methodological and substantive flaws in the argument. I’m pleased for the opportunity to dig in deeper in this forum.

Methodologically, this is an argument that is both levied by people who are in a poor position to evaluate its merits, and apparently lacking in evidence. Ku, like Posner, is an academic law professor, not primarily a practitioner. He notes that the counter-argument has been advanced by “those who are involved in these clinics” – who would naturally defend their occupation – but ignores my response, as someone who is not involved in a clinical program. (I don’t know if this is deliberate – ERI’s blog is admittedly not that high-profile, but Posner himself did respond to my post on his own blog.)

Since modesty is generally absent in the blogosphere, I’ll posit that I’m in a better position than Ku or Posner to evaluate the usefulness of human rights clinics. Why? Posner’s reply to my critique says that “a clinic experience could be valuable to students if it teaches them (distinctively) legal skills and generates benefits for a client (or is likely to).” The conclusion that human rights clinics perhaps don’t do this seems based entirely on supposition, but my contrary observation is not; it’s based on years of experience and evidence.

I’ve been practicing international human rights law for more than a decade, and I know that my own clinical experience (at the Yale clinic, which Ku singles out) has been quite useful to my career. I learned numerous practical legal skills – from the details of researching international law (which is seldom taught elsewhere in law school, even in international law courses), to techniques for interviewing victims of human rights abuses, to approaches to writing human rights reports founded on international law, to briefs in US courts incorporating international law.

And I also know that at least some of my projects led to benefits for clients. One of the cases I worked on was Doe v. Karadzic, which later led to a $4.5 billion jury verdict in favor of survivors of war crimes in Bosnia. Another major project was a Human Rights Watch report on corporal punishment in Kenyan schools, which was then rampant and highly abusive; two years later the Kenyan government banned the practice, and the ban was enshrined in the constitution in 2010. (Actually eliminating it remains a work in progress.)

My own experience with a single clinic is, naturally, highly anecdotal (though no less so than the critiques). But that’s only the beginning of the evidence I’ve seen of the value of human rights clinics. I’ve employed at least six young lawyers who have come through different human rights clinics, and without exception I can say that they have gained valuable skills. In fact, some of the exercises they have done in their clinics parallel workshops that we conduct for our own staff at ERI. Human rights clinics are a major part of the reason that US-trained lawyers are generally better prepared for the work that we do than their counterparts in other countries, who are rarely taught the practical legal advocacy skills that are essential in this field.

I can also vouch for the practical benefits of the work done by these clinics, because as a practitioner I’ve had the opportunity to partner with clinics at over a dozen different law schools. Obviously many international human rights projects are long-term efforts, so tangible benefits are not always quickly identifiable, but these clinical projects do achieve results in most cases. And it would be a mistake to give students the impression that only legal work that shows immediate benefits to specific clients is worth doing; one of the skills that they learn is the value of contributing to one piece of a long-term strategy.

So I would submit that neither Posner nor Ku is in a particularly good position to evaluate the effectiveness of human rights clinics, and neither of them points to any evidence that human rights clinics don’t serve purposes they recognize as valid. My evidence may be anecdotal, but it’s not insignificant, and I’d rather base my judgments on the evidence available.

Substantively, the part of Posner’s critique that Ku echoes – and that deserves further examination – is the suggestion that human rights clinics engage in activities that are “pretty close to pure political advocacy,” modeled after NGOs “whose lawyers also engage in broad range of non-lawyering political advocacy,” and that it is “undesirable” for law schools to “train[] students in pure political advocacy.” Thus, Ku reasons, law schools should “perhaps demand such clinics ensure that a certain percentage of their work is indeed traditional legal skills training.”

There’s a bit of sleight-of-hand going on here, because the argument starts from the assumption that the kind of advocacy that human rights lawyers do is not lawyering – and of course it’s easy to agree that law schools should be focused on teaching lawyering skills. But Ku makes a definitional error in describing this kind of work as “pure political advocacy”; it could more appropriately be described as “using legal arguments in favor of a policy position.” Framed that way, I’d be surprised if anyone would dispute that this is a proper role for a lawyer, and a valuable skill to teach law students interested in making this work part of their career.

As far as I’m concerned, this should be part of “traditional legal skills training.” Lawyers are hired by clients every day to develop legal arguments in furtherance of policy positions, in every area of the law. Indeed, that’s largely what Ku’s frequent writing partner, John Yoo, famously did as a lawyer for the Bush administration. (And did badly – perhaps if Yoo had a grounding in an international human rights clinic, he would not have so grievously misinterpreted international law to legitimize torture.)

I’m not aware of any human rights clinic that has engaged in “political advocacy” unmoored from legal principles, especially principles of international human rights law. As far as I can tell, that notion – like the suggestion that maybe clinics don’t teach valuable lawyering skills – is entirely lacking in evidence. So Ku’s critique, while softer than Posner’s, rests on the same lack of evidence and the same flawed understanding of human rights practice as somehow not lawyerly in nature.

The real test of a clinic should be whether its graduates are valued for the skills they have learned. Regarding human rights clinics, I can personally testify to this, and I have seen no evidence to the contrary.

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3 Responses

  1. Anon Anon says:

    Of possible interest, Eric Posner’s response is here: http://ericposner.com/more-on-human-rights-clinics/

  2. Brett Bellmore says:

    ” it could more appropriately be described as “using legal arguments in favor of a policy position.” ”

    But, is it really that generic? Can a student in a civil rights clinic decide, for instance, that they’re going to assist somebody in challenging affirmative action? Challenging gun control laws as a violation of the 2nd amendment? Defend the right of a baker to not provide wedding cakes to gay couples?

    I think not. The criticism is valid, just as valid as though the students were being given ‘training in assisting a candidate with legal matters’, but exclusively for the benefit of candidates of one party. The students are simply being used to provide the faculty’s favored causes with free labor.

  3. Marco Simons says:

    Certainly, clinics often choose to focus on one side of a particular issue. But that’s the case with just about every clinic. For example, many schools (including Yale) have landlord-tenant clinics. Those clinics typically represent tenants in disputes with landlords, and generally take positions in favor of tenants’ rights. The law could also be used to argue for landlords’ rights, but that’s not typically done.

    A major reason to start a clinic is student interest; there is, in my experience, pretty compelling evidence for interest in international human rights clinics, which are typically heavily subscribed. I don’t see any reason that a law school couldn’t start a “Second Amendment” clinic or a libertarian clinic if there were sufficient student interest. In fact, Stanford recently started a “religious liberty” clinic, which takes on a cause typically associated with political conservatives from a civil rights perspective. Posner’s own school, the University of Chicago, has a “Clinic on Entrepreneurship” which says that it advocates for “economic liberty” (making his attack on human rights clinics all the more puzzling). Either of these clinics arguably might take on your anti-gay-rights examples.

    The example of providing advice only to candidates of one political party is not parallel. There is a difference between having a consistent approach to the legal issues, versus only making services available to people of a particular ideology. The parallel there would be, for example, if a human rights clinic were to only represent victims of torture if they were Democrats. In the campaign assistance example (which couldn’t be done in any event due to restrictions on nonprofit universities engaging in electoral politics), the parallel would be if a clinic were to focus on only one side of issues – for example, only representing candidates, and not the FEC, in disputes over campaign finance.

    Whether students can decide what to focus on, or not, depends on the clinic. My understanding of Yale’s human rights clinic is that students do decide what projects to focus on – they vote at the beginning of each semester. Obviously there’s a fair amount of self-selection here in terms of the interests of the students who choose to participate, but the clinical faculty do not impose their views of which projects are worthy on the students. (I know this from personal experience, because in the past I have proposed projects to Yale’s clinic and had the students vote not to take them on!)

    Of course, one of the goals of clinical programs is typically to provide representation and legal support to communities that otherwise have little access to legal resources (hence the paucity of landlords’ clinics). Providing representation to low-income individuals from a conservative perspective could certainly fit this model, but I don’t think there would be much support for a white-collar criminal defense clinic, or a tax-shelter clinic, etc.