Eric Posner's Not Completely Wrong Critique of International Human Rights Law Clinics
03 Dec Eric Posner's Not Completely Wrong Critique of International Human Rights Law Clinics
[I posted this last week, or I thought I did, but somehow it ended up staying hidden in the bowels of OJ's archives. So although it is a little late, I am posting this again today. -Julian]
As is his wont, U. Chicago law professor Eric Posner has hit a nerve with his recent Chronicle of Higher Education essay criticizing the value of international human rights law clinics at many law schools. As part of his larger critique of international human rights law in general, Posner argues that most international human rights law school clinics "engage in a bewildering array of programs and strategies that have little in common but a left-wing orientation." Many (maybe most) of these clinics, Posner argues, engage in wide-ranging left-wing political advocacy with no particular focus on training students with legal skills. Crucial to his argument is that, unlike regular domestic law clinics, international human rights law is such a fuzzy unsettled and undeveloped area of law that there are few concrete legal skills that are teachable in such clinics.
His essay has drawn a sharp reaction (of course) from those who are involved in these clinics. Most prominently, Sital Kalantry, the founder of a new international human rights clinics at U. Chicago Law itself, argues that Posner doesn't understand what such clinics do and, in any event, his attack on clinics rests entirely on his (misguided) attack on international human rights law itself.
As always, I am sympathetic to Posner's views here and admire his willingness to take on yet another sacred cow. But even I think his attack on international human rights clinics sweeps a bit too broadly. Under his view of the role of clinics and legal education, narrowly focused clinics would satisfy his standard. My law school (Hofstra) has a just such a clinic focused on asylum hearings in deportation proceedings within the US immigration law system. Students learn a great deal about how to handle real clients, draft legal papers, and make arguments, before mostly administrative law judges. But since asylum claims almost always require invocation of international as well as domestic law standards in order to determine whether asylum should be granted, it is also sort of an international human rights law clinic.
I do agree with Posner that it is possible that some international human rights law clinics, like that at my alma mater Yale, have extremely broad mandates to pretty much do anything from filing briefs in domestic litigation and suing their former alums, to lobbying city councils to adopt human rights standards to issuing reports on international law. And these clinics are very close to pure political advocacy groups. But these more ambitious clinics are probably inspired by freestanding non-governmental organizations like Human Rights First or Human Rights Watch, whose lawyers also engage in broad range of non-lawyering political advocacy. And they also are within the orbit of the larger universe of UN-affiliated NGOs and UN human rights institutions. Should law students really be training to do the same type of stuff? I think this depends on the particular situation of the law school and the goals of its students. I think a narrower clinic is probably better in most cases, but I am not ready to say that it would never be appropriate to have a broad-based international human rights law clinic, and that there would never be any useful legal education occurring in that clinic.
But I think Posner's critique reminds us that international human rights law clinics are outside the traditional box of law school clinics, and that they do risk becoming a platform for pure political advocacy (and training students in pure political advocacy). That is something that I agree is undesirable, and I am glad that his critics don't dispute that point. Even international human rights law clinics deserve scrutiny and to be held to the same standards as other law school clinics.
Law schools need to make hard assessments about whether such clinics are worth it for their students, and perhaps demand such clinics ensure that a certain percentage of their work is indeed traditional legal skills training (like a political asylum clinic, etc.). Posner asks the right questions, even if I think his final answer is not quite right.
Our judicial tribunals "are established … to decide on human rights." Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133 (1810) (Marshall, C.J.).
Of course Eric Posner is provocative raising this, but of course he misunderstands advocacy. As he misunderstands international law. So it goes.
It sounds like Posner raises some good points, but in light of the bigger picture his criticisms don't carry enough weight. International human rights clinics give law students a chance to learn about an area of law in which they are interested in a more practical and hands-on way than they would in the classroom. Yes, their projects may be largely politically motivated, but there are many law school clinics with political motivations or at least leanings and that does not entirely detract from their educational and practical value. If students are interested in pursuing international human rights law, the fact that it's a fuzzy and undeveloped area of law is something they'll have to deal with when they go out in practice, so they might as well learn up front what it will be like to operate in such a field.
Sure, narrower clinics may be more beneficial to students, and it sounds fair to require they focus a certain amount of work on traditional legal skills training. But the fact that the clinics' reach goes beyond that traditional training does not mean they are unworthy or not educational and beneficial to students.
I can't speak for human rights clinics generally, but my experience in a human rights clinic involved a deeper critique (on almost a daily basis) of what we were doing than anything I've seen written by Posner et al.
I think a vital function of law school clinics, as part of the law school curriculum, is to do something much more broadly educational than just impart skills (though the HR clinic did that too) — a clinic needs to have a critical edge to it. I'd say that Posner gets things exactly backward; it's the breadth of human rights practice and its normative difficulties that make human rights clinics (and other "non-traditional" clinics) valuable in a way that differs from "traditional" court-based clinics.
Julian Ku