I’m really proud that Concurring Opinions is hosting a symposium today and tomorrow on What Difference Representation. I think the piece offers a timely and provocative thesis, and we’ve assembled a near-ideal group of folks to engage with the topic. I look forward to seeing what the group comes up with. A big thank you to Jaya for organizing with me, and of course to Jim and Cassandra for agreeing to hold up their work to public scrutiny.
I’ve been thinking over the last several weeks about what I could say that would be distinctive. Here’s what I came up with. That selection makes hay of our ability to study lawyering in the wild is obvious – and Representation’s focus on the hazards of previous work in the field an important contribution. Generally, selection– in various guises — produce one of empirical legal studies’ true wicked problems. It shocks me how many quantitative and qualitative papers proceed as if it it were a molehill to dismiss, instead of a mountain to climb. Randomized trials promise a solution — really, the only way we can know if legal policies are having the effects that we hypothesize.
Law school clinics offer one of the few fora where randomized trials would be ethically & practically feasible. It is true that no law school clinic experiment can fill the offer/representation gap that bedevils the paper. But comparison across clinics might shed light on the effect of resources, client characteristics, clinic structure, and legal regime on the offer-making outcomes that the paper discusses. (Whether you a comparison of like-clinics would enable a better estimate of the representation effect than the methods employed on pps. 39-42 is an open question.)
Given that more data would permit better resourcing decisions, should law school clinics be expected to engage in randomized trials when offering representation? My tentative answer to this question is yes. Law school clinics are subsidized by student tuition dollars (and sometimes the public too). This doesn’t and shouldn’t mean that pedagogical clinics should refrain from zealous advocacy. But it does suggest, I think, that their mission should be informed and guided by the values of the University: openness to criticism, the expectation that participants will produce generalizable and socially useful knowledge, and measured transparency. Those values would be served if clinics participated in randomized testing to see if, and how, they are helping the recipients of their services. Like Abramowicz, Ayres and Listokin, I endorse randomization before determining the effect of legal policy. To my knowledge, not one law school clinic in the country engaged in a randomized trial before engaging in lawyering services. Doctors no longer practice this way – lawyers shouldn’t either.
It would be much better if this participation in research occur voluntarily, without resort to our accrediting agency, or, worse, the politicized and meddling hands of various state-related funding bodies. I think moral suasion is the best route – hence, this blog post. We’re anticipating that many clinicians will read this symposium. To them I pose the following challenge: why not randomize and see what effects your offers are having on client outcomes? Maybe, in the aggregate, we’ll learn something about representation.
While you are mulling that over that modest proposal, I hope you will enjoy the rest of the symposium.