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.