January 11, 2006
Business Law Clinics
Posted by Gordon Smith

Heather MacDonald wrote a scathing indictment of law school clinics, which appears in today's W$J. Using the Alito hearings as a springboard to discuss "mainstream" views of law, MacDonald offers clinics as Exhibit A for the notion that law schools are incubators of left-wing political activism:

Today's clinical landscape is a perfect place to evaluate what happens when lawyers decide that they are chosen to save society. The law school clinics don't just take clients with obvious legal issues, such as criminal defendants or tenants facing eviction. They take social problems--unruly students in school, for example--and turn them into legal ones. Florence Roisman, a housing rights activist at the Indiana University School of Law, has inspired clinicians nationwide with her supremely self-confident call to arms: "If it offends your sense of justice, there's a cause of action."

The original rationale for many clinics disappears under their political agenda, even though schools still invoke it. Harvard, for instance, explains why law students should enroll in a clinic by emphasizing craft training: "Practical learning . . . should not be deferred until after law school graduation," the faculty declare. But what "skills of legal representation," in the faculty's words, will students in the Gender Violence, Law and Social Justice clinic pick up in researching "gay, lesbian, bisexual and transgendered awareness" for the Massachusetts trial courts, or in helping with the "development of a new self-defense program" to prevent acquaintance rape?

New York University's Brennan Center Public Advocacy Clinic explicitly disavows advancing a student's lawyering knowledge: It is simply a vehicle for every type of left-wing political advocacy. The center spearheaded one of New York's most powerful welfare-rights groups, and, to make sure that the supply of left-wing agitators remains high, it also developed a "community advocacy" curriculum for high schools. Nor does another NYU clinic, this one on immigrant rights, limit itself to law matters. Students help lead protests and then rustle up media coverage for those protests--part of what the clinic calls "explor[ing] . . . ways of being a social justice lawyer." Students in Georgetown's State Policy Clinic work on "building a new economy that is inclusive, participatory and environmentally sustainable." Yale's Legislative Advocacy Clinic aims to move Connecticut toward "a more progressive agenda in taxing and spending revenue."

MacDonald also touches briefly on the subject of business clinics:

Ask why more clinics don't represent small-business men and you'll hear: We are "people's lawyers," representing clients who cannot afford attorneys. Oh, really? Georgetown University's Institute for Public Representation represents the American Cancer Society, the American Heart Association and the American Lung Association in tobacco litigation. The idea that these charitable behemoths could not pay for lawyers is silly.


If law schools were really serious about preparing students for their legal careers, every one would have a transactional clinic for small businesses. The vast majority of lawyers advise clients on business deals -- negotiating contracts, setting up corporations and partnerships, trying to avoid legal and tax liabilities, and arranging securities offerings and registrations. Struggling businesses, including those run by minority entrepreneurs, are hurting for lack of such counsel.

When I was working at Skadden in Wilmington, Delaware, I was encouraged to participate in the firm's pro bono efforts. Being a corporate transactional lawyer, I felt more than a bit shy about taking on a death-row inmate as a client, so I suggested to the firm's pro bono coordinator that I might spend my time working with various economic development groups in Wilmington. These groups provide services and financing to low income entrepreneurs, often focusing on women and minorities. The pro bono coordinator (in the New York office) scoffed at my proposal: "There is no such thing as an indigent entrepreneur!"

Despite his unwillingness to back my efforts, I received local support from the partners in Wilmington and eventually assisted the First State Community Loan Fund in making some of its first micro-loans. These loans paid for a sewing machine, a computer and tax-preparation software, and inventory for a small hardware store. The repayment rate was outstanding, and I daresay that a few lives were changed, including mine.

Since entering academe in 1994, I have been a cheerleader for business law clinics. Although I cannot take credit for its realization, I participated in the early discussions that lead to the creation of the Business Law Practicum: Community Development Law Project at Lewis & Clark Law School. We have had similar discussions at Wisconsin, though we are a long ways from launching a business law clinic. Nevertheless, business law clinics already are fairly common and they are proliferating. (Just Google "business law clinic" and you will find plenty of examples.) In my travels, I have not sensed any of the hostility that I experienced in my foray into pro bono work at Skadden, and my sense is that the attitude referred to by MacDonald is receding.

Thanks to Danny Sokol for the tip.

UPDATE: I just caught up with Larry Ribstein's post on this from earlier today. Larry contends that few law schools have business law clinics, and though I think there are more than he knows (I am on a listserv for business law clinicians, and they seem pretty numerous to me!), his core point is sound:

This is important training for the real world of law practice that is not being done either at law firms (now focused on squeezing as much profit-per-associate as possible) or in law school classrooms.

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