No. 3 : Clinical Law

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Villa Verde by Elemental

Fieldwork

  1. Develop a mission for your clinic, apart from a law school curricular niche that it might fill, and make that mission transparent to your students. Identify issue areas or work on social problems that advance your clinic mission. Choose issue areas at least partly on the basis of an evaluation of the degree of community mobilization in that area. Cluster clinic projects around those issue areas.
  1. Explain how you prioritize particular cases, transactions, and projects and invite student critique of the selection process. Resist first-come, first-serve case selection. Resist the impulse to allow students to choose or “vote” for cases to be added to your docket. Incorporate student involvement in case selection in a way that does not blunt the core mission of the clinic.
  1. Carry both litigation and non-litigation and individual and group representation projects on your docket to demonstrate how lawyering is varied and multi-modal. See Jayashri Srikantiah & Jennifer Koh, Teaching Individual Representation Alongside Institutional Advocacy: Pedagogical Implications of a Combined Advocacy Clinic, 16 Clinical L. Rev. 451 (2010).
  1. Work on policy projects in close cooperation with organized communities and advocates engaged in long-term work in the issue area. Resist the urge to use the academic platform to develop social policy projects untethered from individual and organizational clients or broader social movements in your area of focus. Create projects with students and clients in multi-semester clinics that build on their earlier work (e.g., policy advocacy subsequent to provision of direct individual legal services). See The Revolution Will Not Be Funded: Beyond the Non-Profit Industrial Complex, Incite! Women of Color Against Violence, ed. (South End Press 1999).
  1. Mass incarceration and criminalization, along with economic inequality, are the central issues facing poor people and people of color. Find a way to incorporate cases, transactions, or projects that implicate the criminal justice system. Represent a prisoner or detainee. Reach out to individuals and organizations attempting to challenge civil detention and criminal incarceration. Develop an understanding with students of how civil and criminal legal systems intersect to oppress poor people. See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press 2010); Sharon Dolovich, Teaching Prison Law, 62 J. Leg. Educ. 218 (2012); Wendy Bach, The Hyperregulatory State: Women, Race, Poverty, and Support, 25 Yale J. L. & Feminism 317 (2013).
  1. Find ways to collaborate with creative public interest lawyers on projects. Identify a few lawyers in your issue area that may be working outside of established advocacy channels or who may be working in collaboration with groups of clients. Identify lawyers who may be challenging established norms of practice in community and in courts and legislatures.
  1. Encourage students to think creatively and expansively about the retainers and letters of engagement that they use to govern relationships between the clinic and clients. Start from scratch when the situation demands it. Resist reversion to conventional forms and precedents. Acknowledge the illusion of client consent to student representation in situations characterized by radical scarcity of legal resources.
  1. Encourage law students to share documents and legal materials stemming from a case, transaction, or project with clients. Think together about how to translate materials into plain language for wider dissemination and deeper understanding. Consider how these efforts may fit into a broader agenda of legal empowerment, so as to lessen the reliance of communities on lawyers for work on the challenges that they confront. Connect individual and group clients with non-lawyers who have successfully made legal and policy interventions. See Namati: Innovations in Legal Empowerment, https://namati.org/.
  1. Incorporate community-based (but generally not family-based) interpreters in lawyer-client relationships. Resist the urge to treat interpreters as mechanized conduits of information and instead see them as partners in the construction of the lawyer-client relationship. See Muneer Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 UCLA L. Rev. 999 (2007).
  1. Consider what it means for educationally privileged students to be trained for their professional advancement by working on the cases of poor people and people of color. Critically evaluate the institutional uses of clinics, particularly in communities that may have historic antagonisms with the university. Think with students about how to confront these underlying realities with individual and group clients. See Fred Moten & Stefano Harney, The University and the Undercommons, 79 Social Text 101 (2004).

Seminar, Case Rounds, and Supervision

  1. Center the fundamental injustice of law—including the violence and inequality perpetuated by and under law—rather than assimilating within the liberal legalist project that accepts the basic governing tenets of the current legal system. See, e.g., Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (Basic Books 1992); Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (South End Press 2011).
  1. Include multi-modal and campaign-oriented skills classes in your clinic syllabus, such as media advocacy, ethics of law and organizing, and community education. Invite organizers to class to discuss their work and their use of law and lawyers. Invite critical thinkers from other fields, such as journalism, education, and social work, to demonstrate how professionals engage in creative advocacy efforts across a range of problem areas. See, e.g., Gerald P. Lopez, Rebellious Lawyering: One Chicano’s Vision of Progressive Legal Practice (Westview Press 1992); William P. Quigley, Reflections of Community Organizers: Lawyering for Empowerment of Community Organizations, 21 Ohio Northern Univ. L. Rev. 455 (1995).
  1. Get your students out of the law school to community spaces in which lawyers are not constructing the problems and solutions, even if such sites are not part of the fieldwork to which they have been assigned. Consider spending time with law students in a detention center, jail, or prison. Identify the courts or administrative proceedings in your community in which poor people litigate, such criminal, housing, immigration, public benefits, and have your students engage in critical observation through written reflection. Disrupt the law school experience and constructively disorient. See Fran Quigley, Seizing the Disorienting Moment: Adult Learning Theory and the Teaching of Social Justice in Law School Clinics, 2 Clinical L. Rev. 37 (1995).
  1. In classes on client relationships and counseling, raise issues related to oppression and power, particularly when there are challenges or gaps in communication between law students and clients. Critique cultural competency rhetoric and challenge students more proactively: can white law students ever understand clients of another race, wealthy students understand clients of another class, male students understand female clients? Can a cis-MASA man understand a MASA woman or a gender nonconformist MASA person? Reflect on varying forms of privilege. Work through student responses to these difficult questions. Help develop students’ understanding of a client’s knowledge of oppression and resistance and their knowledge of survival strategies. See Michelle S. Jacobs, People from the Footnotes: The Missing Element in Client-Centered Lawyering, 27 Golden Gate Univ. L. Rev. 345 (1997).
  1. Engage critically with rules of professional responsibility. Identify the paradox of maintaining a critical stance vis-à-vis the profession and its rules, while assimilating into it and mastering the application of those rules. Discuss situations in which law students may be required to advance legal claims and factual narratives that undermine social justice. Use professional responsibility preambles on access to justice to discuss the public responsibilities of a lawyer. See Lawyers’ Ethics and the Pursuit of Social Justice: A Critical Reader, Susan D. Karle, ed. (NYU Press 2005); Mari Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 Women’s Rts. L. Rep. 7 (1989).
  1. Assign portions of outside material for context (e.g., Evicted by Matthew Desmond for a housing law clinic). Broaden and contextualize the policy conversations in particular fields by expanding our understanding of the problem. As in case rounds, refrain from jumping to policy solutions, particularly those prepackaged and proffered by policy entrepreneurs who live in the dominant center-right portion of the political spectrum. Include discussion of systemic implications and structural critiques at the end of every case round session. Consistently put individual cases in broader policy and political context. Feature stories of organized resistance to oppressive people and conditions. Uncover social and economic relationships and connections between otherwise separated and isolated people.
  1. Include time at the end of every supervision session to reflect and to think critically about the case, transaction, or project. Give law students the space to share their more empathic and less linear reactions to facts, people, and problems. Prompt law students to call upon their own moral and ethical commitments during the course of client representation. Make sure to reflect on what is fair and just before and after major events. See Phyllis Goldfarb, A Theory-Practice Spiral: The Ethics of Feminism and Clinical Education, 75 Minn. L. Rev. 1599 (1991).
  1. Move beyond problem-solving rhetoric and toward conceptions of power building. Rather than law students serving as “voices for the voiceless” in a contest between competing, unequal interests, have your clinic work with clients to claim power. Consider with students how to extend these commitments beyond clinics and into their post-graduate practices. See Lucie White, To Learn and Teach: Lessons from Driefontein on Lawyering and Power, 1988 Wisc. L. Rev. 699 (1988).

** Thanks to Nicole Smith Futrell, Sunita Patel, Jeena Shah, and Robin Walker Sterling for their support and feedback. Any errors and omissions are solely attributable to members of the Guerrilla Guides collective noted here.

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