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January 22, 2013

When Law Schools Teach Advocacy as a Skill

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By Peter H. Schuck 

The New York Times reported today that Stanford Law School has established a new clinic for its students, one devoted to defending individuals' free exercise of religion rights.  Subsidized by the Templeton Fund, which promotes religion in American life, including religious views on a variety of scientific and policy issues, the clinic will represent people whose religiously-motivated practices are restricted by employers, government, or other social institutions.  The new clinic was proposed by Michael McConnell, an outstanding constitutional law scholar and former federal appeals court judge, who is both religious and politically conservative.

The Illusion of Objectivity 

Why does the New York Times find it newsworthy that an elite university has created such a clinic? Perhaps the answer can be found in the mystique of academic dispassion, neutrality, and objectivity, a mystique carefully cultivated by the universities themselves.  It holds that what universities do - in their labs, scholarship, and classrooms -- is to search for the truth, understood as some elusive set of facts about the world, free of pre-existing commitments or biases.  Although some of our leading intellectuals and academics have sought to debunk this understanding of what universities do, they have not succeeded in refuting or displacing either the ideal of objectivity or the possibility of attaining it.   

Stanley Fish, a humanist whose academic specialty is John Milton, is perhaps the most serious and provocative of these skeptics, and it is telling that he has gravitated to teaching at law schools.  There, advocacy is not only taught as a skill but is a fundamental value, pervading the curriculum, the classroom, and the belief systems of faculty, students, and top administrators (who are usually lawyers).  In this view, truth is not a fixed thing; instead, it is simply the view that emerges from the clash of advocates under certain prescribed conditions.  These conditions, sometimes called procedural justice, include competent adversarial lawyers who adduce tendentious, tactical, and one-sided evidence on behalf of their clients before a disinterested, professional tribunal largely ignorant of the factual particulars of the case.  Whatever the tribunal finds as facts and law is as close to authoritative "truth" as a particular litigation ever gets.  (Stephen Colbert's arch concept of "truthiness" is not far off the mark here).  Thoughtful lawyers understand that this is a narrow, artificial conception of truth, one confined to their professional milieu; they may define it differently in different realms (say, religion, science, interpersonal relations) without any feeling of incoherence or inconsistency.

Law professors teach their students in a variety of ways.  Some venture no personal opinion about which substantive views they prefer (this is known as "hiding the ball"), emphasizing instead the craft values of legal reasoning, opinion writing, and procedural maneuvering.  Along the same "neutral" lines, some use some version of Socratic method, pushing students to find the limits of any particular legal principle as applied to a set of facts.  Others push a particular analytical approach, be it legal process; law-and-economics; corrective justice; feminism; critical legal studies; or some other favored perspective.  And still others are explicit about which substantive outcomes they think are best, and why - presenting their views with varying levels of dogmatism.

Law professors' scholarship tends to be far more advocacy- and policy-oriented than in other fields - reflecting both law's inescapable normativity and professors' ambitions to influence the decisions of courts, legislators, and other policymakers.  Law review articles usually emphasize certain normative values and then assess legislation, court decisions, or other forms of legal doctrine in light of those preferred values.  The best of them take normative and empirical tradeoffs seriously, but the vast majority play these tradeoffs down or oversimplify them in the interests of what they see as effective advocacy.   Very few law review articles are peer-reviewed; instead, they are edited by law students who are inexperienced, not particularly well-read, and usually ignorant of the particular subject matter of the article.  

The Priority of Public Service 

Law schools also take public service to be an important part of their raison d'etre.  The main institutions for performing this service in law schools are legal clinics that grant academic credit to students who work in them. (Yale established its first such clinics in the late 1960s, and other schools followed suit).     Given the overwhelmingly liberal ideology of the professoriate in the elite law schools (and perhaps further down the food chain as well), public service is usually defined in terms of advocacy on behalf of the poor and minorities, with their interests being defined in a particular way that seems obvious to the leftist advocates but not so obvious to others.   Ideologically speaking, the interests of clinic clients - and thus the positions taken on their behalf in litigation, negotiation, or other action -- are almost invariably defined by the clinic directors and student participants from a standard liberal, rights-oriented perspective.  Low-income housing clinics, for example, typically seek to make it more difficult for landlords to evict tenants, even when doing so may increase landlords' costs (and thus rents) and reward antisocial behavior that adversely affects other tenants.  Human rights clinics tend to look to the pronouncements of United Nations organs and liberal NGOs for their guiding principles, rather than to the more centrist, pragmatic practices of the US and other democratic regimes.

Given this context, the surprising thing about Stanford's new clinic is not that it take strong positions on one side of legal disputes that carry strong ideological valences, but that its sponsors are not partisans of the left.  Even so, the positions that it takes will probably emphasize individual rights that most liberals will support.  I wish it well.

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Peter H. Schuck is Simeon E. Baldwin Professor of Law Emeritus, Yale Law School    



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