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.