Live shot of me every time the Federalist Society says something. (Image via Getty)
The fundamental premise of a law school clinic is that it’s a teaching tool. If you want to be a lawyer, you should get out there and do some law stuff. Meet real clients, address their real issues, learn from some lawyers who are out there practicing instead of the ones who are out there writing law review articles. Law is fundamentally a service industry, but the service is usually downplayed in law school classes. Clinics are one way to “learn by doing.”
Most law school clinics tend to focus on underserved clients or indigent clients. This makes sense. If there are clients who can benefit from the counsel of a mere lawyer “trainee,” clinics should focus on those clients. I promise you, Exxon-Mobil does not need free legal advice from 2Ls. They can afford “real” lawyers. Clinics are useful to the community only to the extent that getting the full attention of an untrained lawyer represents an “upgrade” over the two seconds a fully trained professional has to spend on your case.
Of course, my argument is premised on the belief that lawyers should, where they can, try to help society, not destroy it. My argument will never work on people committed to the Federalist Society, because they believe I proceed from a faulty premise. The FedSoc doesn’t want to help “society,” they want to help their “team.”
Looking out upon the myraid of clinical offerings at Harvard Law School, the HLS FedSoc came to the conclusion that there weren’t enough opportunities for right-wing students to press their Republican agenda. Since the FedSoc looks at every opportunity through the lens of whether they can press their agenda or not — colored with the ever-present persecution complex that only privileged Republicans who control 2.5 branches of government would have the gall to pull off — they decided to do the only thing conservatives know how to do: Bitch and moan.
Folks, this letter is the equivalent of a bunch of medical students demanding a rotation through the breast implant wing because working triage after a mass shooting is too “anti-Second Amendment” for their tastes.
Like so much of what the Federalist Society does, this list of proposed clinics ranges from pure partisan hackery to intellectually dishonest gaslighting. I highlighted the tweet above because later in the thread, the guy exposes once such intellectual falsehood: The made-up need for an “administrative law” clinic:
By “administrative law,” I assume what the FedSoc really wants is some kind of clinical program focused on the destruction of the administrative state and the revocation of Chevron deference. The only real “client” for such an adventure would be Neil Gorsuch, and he can get legal help whenever he wants it.
The FedSoc has come out with a list of causes, not programs. And that’s because the FedSoc knows, as I know, that the programs that work on their preferred causes are already incredibly well-funded. Deny services to a gay person because “Jesus” told you to, and conservative lawyers will materialize in your store to fight for your rights to bigotry. The NRA has no shortage of lawyers happy to (over)charge them as they advance whatever blood-soaked theory they need to make to keep Remington in the black.
And, I’m sorry, but the intellectual idiocy of a “pro-life” clinic exposes not just the FedSoc’s misapprehension on what a “clinic” is, but also the legal weakness of the pro-life movement altogether. Who, the hell, is your “client” in a pro-life clinic? A woman who doesn’t want an abortion? Great. Don’t get one! A doctor who doesn’t want to perform one? No problem, Doc, don’t perform them. A state that wants to take away a woman’s right to choose? Don’t worry, Alabama has government lawyers it pays to do this work. No, your pro-life “clinic” would involve doing free legal work for some dude who wants to insinuate himself into somebody else’s private choice. That’s not a teaching tool for law; it’s basic training for the culture wars. Sorry if you can’t get class credit for that, mein snowflakes. THAT’S WHAT YOUR SUMMER IS FOR, if you are so desperate to tell women what to do with their bodies.
The truth of the matter is that Harvard Law School offers an abundance of clinical programs for those with more conservative leanings. It just offers them around the core concept that free legal work should be done for those who can’t afford to pay for it.
If you are interested in fighting against the government’s progressive tax scheme, you can do that. HLS offers a Federal Tax clinic through WilmerHale. The “catch” is that you have to help poor people who are in dispute with the IRS, instead of helping Elon Musk “fight the man.”
If you want to sharpen your transactional skills so that one day you can help Amazon buy the U.S. State Department, you can do that. HLS offers a Transactional Law clinic. The “catch” is that you have to help small businesses, non-profits, and starving artists with their transactional law needs. I doubt that Mitt Romney will hold it against you when it comes time to deploy your skills for Bain.
Do you just really want to put people in jail before you even pass the bar? Don’t worry, Harvard has you covered. HLS offers a Prosecution clinic in connection with the D.A.’s office in Middlesex, Norfolk, Suffolk, and Essex County. GO NUTS, conservatives, for your days of demanding cash bail for victimless crimes awaits.
For conservatives who just can’t stomach the thought of working for Legal Aid, or getting school credit to help indigent refugees, there are options. People who can’t afford a lawyer have all of the same kinds of problems of people who can. But what HLS is not doing is giving free labor conservative culture warmongers who are already incredibly well-funded and often well-represented by the very people Harvard Law graduates anyway.
The problem is not the diversity of Harvard’s clinical programs. The problem, as always, is the hackery, trolling, and gaslighting the Federalist Society is all about.
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.