Dean of Washington College of Law 1988 to 1995. First clinical teacher elected president of the Assoc. of American Law Schools.
Oral history details
|Date of interview:||May 12, 2015|
|Where relates to:||District of Columbia|
|Topics:||Access to justice and Law school|
Full text of transcriptDownload PDF: Transcript
Consortium for the National Equal Justice Library Oral History Collection
Interview with Elliott Milstein
Conducted by Alan Houseman
May 12, 2015
Transcriber: Heidi J. Darst, CSR, RPR, RMR, CRR, TCRR, TMR
This is an interview for the National Equal Justice Library with Elliott Milstein, who’s a professor of law and former dean of the Washington College of Law at American University. The interviewer is Alan Houseman for the National Equal Justice Library. Elliott, let’s begin by telling us a little bit about where you grew up, where you went to law school, college and law school. A little bit of your background.
Yeah, sure. I grew up most of my childhood in Charleston, West Virginia. We left there when I was 11. Then Hartford. After that, I’m a Connecticut boy. After discovering that engineering was not my thing, like many people of my youth I transferred from Carnegie Tech to University of Hartford and then UConn Law School. I later got an LL.M. at Yale, so it’s all Connecticut.
We moved to the suburbs from the city when there was a mass migration of Jews from the north end of Hartford to the suburbs making room for African-Americans to move in, I suppose chased out by realtors in the tragic segregation of the cities in Connecticut and around. So I lived through that.
So how did you first become involved in work that relates to legal services?
Well, to tell you the truth, I never considered anything else. I graduated college in 1966. We lived through the Kennedy Administration. Our generation of kids were all asked what can we for our country. So there was really no other path that I ever considered other than representing the poor. That was my motivation to go to law school. It was just the perfect time to have that set of values. The civil rights movement was going on and injustice was everywhere. So the idea that you could be a lawyer and effect social change was in the air. Not that it was the idea of the majority of people in my law school class. But there was a nice subset of us. At the same time that I started law school, legal services programs were expanding, so there was going to be jobs. Again, we weren’t thinking of it in those crass terms, but it was a real possibility.
Right before I went to law school, there were major Connecticut cases: Griswold v. Connecticut and Goldberg v. Kelly. So there was some sense that you could right wrongs being a lawyer.
My sister was not a lawyer but was a labor organizer and spent her whole career in the labor movement. We would often ask each other what happened, where this came from, not that our entire family was political.
I can go beyond the couch here and tell you that I had an uncle who always told Depression-era stories about poor kids who somehow in the end made it, like an Orphan Annie story. We were brought up believing that fighting for the underdog was a noble enterprise.
Neither of my parents went to college. I think how much poverty affected their lives during the Depression might have influenced us. That was who we were.
What kind of activities did you get involved with in law school?
I went to UConn Law School and we considered the left. I married one of my classmates, someone you knew well, Bonnie Myrun. On the first day of law school, my roommate said to me, “You’re going to marry Bonnie Myrun.” And so it was. Within a year, we were married. We, along with some others, were considered the lunatic left. Luckily, there were always some people more to my left.
The best vehicle for doing that work was an organization ‑‑ this is before clinical education ‑‑ called the Board of Student Public Defenders and Legal Assistance. I became the chair of that board. Essentially, we helped students do pro bono work in legal services programs with public defenders.
That turned out to be a fortuitous place for me because we began to associate with the Neighborhood Legal Services program at Hartford and did some volunteer work there. Then there were the riots after Martin Luther King’s assassination. Suddenly there was this urgent need for legal services.
I don’t know if you know Joe Harbaugh, but Joe Harbaugh was the chief public defender of Connecticut. And he gave a speech at our annual banquet in the midst of all this. He put out this really, really wonderful call for lawyers to step up. So we law students organized something that we called the volunteer defenders. We did intake at the Hartford Neighborhood Legal Services office and then placed criminal cases with lawyers from law firms and insurance companies to handle. We did a lot of the legwork in those cases. It was a really eye‑opening experience not just for us but for all these lawyers who had no experience in criminal law. Many of them embraced it and had life‑changing experiences. We spent that summer doing that.
There was this big sense that something has to happen to help the cities. So the University of Connecticut rented a warehouse in the north end of Hartford. They gave us an office with a desk and a typewriter and a wastebasket and a telephone. They said, well, go do something there.
The way I like to tell the story is filling that office has been my life’s work. What do you do when you’re given the opportunity to try to use law as a force for good and you get some minimal resources? What do you teach students in that moment, what do you do, what do you teach, what do you learn, and how are your values shaped by what you see? So that office was a really important. I guess this must have been the Fall of ’68. So it was an important personal developmental moment and also a moment for lots of lawyers in Hartford. So that was the beginning for me.
And after law school, what did you do?
Joe Harbaugh had an idea to start a clinical program at the University of Connecticut. He had come out of the Prettyman program at Georgetown and had what is I think was a flawed notion. But it was great for me. He hired three people right out of law school to be the clinical teachers. This is before there’s a student practice rule, before anybody knows what clinical education is. I had served as his research assistant and I got hired into this program.
So my first job out of law school was teaching in a criminal defense clinic at UConn Law School. The idea that I had anything to teach is sort of far‑fetched except that we were learning and the students were by our side. So I became one of the first clinical teachers in the country right out of law school. The idea was that we would stay for a year and then the world would beat a path to our door. They would want us to be clinical teachers. That turned out not to be true.
Meanwhile, the Ford Foundation had been persuaded that they needed to do something to produce urban lawyers, so they created a program that may have lasted three years called the Ford Urban Law Fellowship Program. And 20 people who were promising law professors were given these fellowships to go to Yale, Harvard, Columbia or NYU for the summer working in a New York City agency. I got one of those and ended up going to Yale.
You’re introduced to a whole new community of committed people who are supposed to go back to law school and create something called urban law, which was never defined and I think never got defined. But it gave me this important credential, and so while I was at Yale I was appointed to work in the clinical program with Steve Wizner and Denny Curtis. In those days, New Haven Legal Assistance did criminal work. I was hired as this, quote, senior staff attorney in the Grand Avenue neighborhood office of New Haven Legal Assistance.
Meanwhile, back at the ranch, Tom Meskill, a Republican, was elected the governor of Connecticut. In his first budget message, the first thing he said he was going to cut was the clinical program at the law school because they had sued the state over prison conditions. What ultimately trickles down is that he’s cutting all the funding to legal services programs, which had gotten a lot of state money. I was well into my first year practicing full-service criminal law out of a neighborhood office with great colleagues in a great program. Then there is a big funding cut. So there’s a meeting with the entire staff — lawyers, paralegals, neighborhood workers. Who’s going to go? What are we going to do? You know, everybody’s looking around the room. It’s like the suicide pact.
Meanwhile, I had been approached by somebody that had recommended me to American University. I said that I had a two‑year commitment to stay at LAA, but suddenly it would be a service to if two lawyers left. So I got appointed to the job here at American University. Bonnie was happy enough to to. She had already been at LAA for two years. So we moved to Washington. And that’s that Connecticut history for me.
You’ve been very much involved in clinical legal education really from the outset, which you just talked about. Talk a little bit about the kinds of things you’ve done in clinical education and the kinds of activities that you and others that you work with have done.
Well, as I said, when I started, the idea that students would be involved in representing real clients was obviously a good idea. The question was what you would teach them and how you would teach it. I was involved in the earliest conferences and discussions about what this thing would be. There was a lot of division about that. Would it be clinical? By the time I got back into it after I had been in New Haven for a couple years, student practice rules were enacted in many states which let students actually take responsibility for cases and appear in court. So it was no longer viable to hire people right out of law school because you were supervising students in court. In any event, it’s not what I wanted to do. I didn’t want to be training lawyers to be teachers, I wanted lawyers to help me train students to be lawyers.
Many of us had come from legal services. We were all were very connected to the antipoverty movement and the idea of lawyers as instruments of social change. We thought we were preparing the next generation of legal services lawyers and that was our primary mission.
But, still, the question was, what’s the content? What would we teach them? When I was in law school, there had been no poverty law course. There was no clinical program. We had agitated for a poverty law course. The law school responded by creating one. Three faculty members joined together to figure out what that was. A third of it was benefits, a third of it was housing, and a third of it was consumer law. So that was one approach – that the content would be law. The content would be courses in advanced criminal or civil procedure and law. It’s the more practical law and tactics in a case. So that was an option – that you would teach law in the clinical program. That’s where I first charted my course because basically we knew how to teach law ‑‑ or at least we thought we did.
The only problem was the law doesn’t really matter that much. My experience as a lawyer in the criminal courts of Connecticut was that law is almost an afterthought. I mean, the law was what the judge in the courtroom said it was. The law was the discretion that the prosecutor had. So the idea that there was this rational process of logic that would, if you could master it, enable you to win turned out to not be true, or at least not true enough that that’s what you had to base being a lawyer on.
So there was something else going on that we needed to think about and teach – what might be called the nonrational side, ways that lawyers got socialized into. For example, my first client in Hartford was a woman charged with the crime of nightwalking, which was a clearly unconstitutional statute punishing someone who went abroad or about in the night season with the intent to invite sexual intercourse. That was the statutory definition. So I challenged the constitutionality of it by filing the motions and making sure I had the procedure right. The punishment for doing that was that my case was called at 4:00 in the afternoon rather than at 9:00 or 10:00 in the morning. So there are ways in which the system kind of pushed you. It was a system about relationships and friendships and go along and get along. It was a system where a judge would make up an exception. We had something called the Mancini exception to the hearsay rule. If it was said in your client’s presence, it’s admissible. That was Judge Mancini’s ruling. So what do we do with that? So how do you teach students to operate in a system that’s not completely rational? How do you take those values into account? What about this lawyer‑client relationship, why is it so difficult?
So after I was here for about, I don’t know, two or three months, as Joe Harbaugh mentioned ‑‑
“Here” meaning American?
American University, yeah. So Joe was spending a year with Gary Bellow.
Who was at Harvard.
Who was at Harvard. So I went up. What’s going on up there? I came back from spending a few days there transformed in terms of how I thought about education and how I thought about what we would teach in a clinical program.
So we moved from teaching about law to teaching about the lawyering process. Those were Gary’s words, “the lawyering process”. We moved to teaching about interviewing, counseling, negotiation, trial. As clinical teachers, we began to give definition and names to the subparts of the lawyering process. We thought about a pedagogy and content that tried to respond to the reality of what I now call indeterminacy and uncertainty. Essentially it means trying to teach students not to be frustrated by it but to embrace it in some way and use it on behalf of their clients. That takes you forward to today.
I was very influenced by Gary Bellow. Gary and Bea Moulton wrote a book called The Lawyering Process that came out in ’78. But before it came out, it was available in mimeograph version. It was very influential on the way my generation of clinical teachers thought about clinical education.
At the same time, there’s this thing that we call lawyering skills and how do you teach those skills. There’s the skill of interviewing. How do you ask open‑ended questions? How do you probe for more detail? What’s active listening? What’s client‑centered lawyering? How do you counsel? So there are things that we think of as skills. Then at a very skillsy level, how do you cross‑examine someone? How do you listen for rules of evidence, et cetera.
So there was the skills strain, and what I would call the values strain. This was all anticipated in the Bellow‑Moulton book. The book was never successful as a book, as a textbook for students, but as a book that influenced the direction of clinical education it was incredibly influential.
Meanwhile, during the period of, say, ’72 to I’m going to guess ’78, ’79, there was simultaneously the legal services training program that was being run at Catholic University right across town. Dick Carter was running it. They invited clinical teachers to teach and train new legal services lawyers. There were many training programs but I was recruited to teach in the new lawyer training program. The teachers in the new lawyer training were a combination of clinical teachers and legal services lawyers. The training file was first Mary Joyce Allen. Then there was ‑‑ oh, God, I can’t believe I’m blanking on the name of it, but it was about a used car purchase – the Terry James case. Those were the major training vehicles that operated on the belief that legal services lawyers didn’t get in law school what they should have gotten and they could be trained, and particularly about the attitudes and dynamics of being a legal services lawyer while learning skills.
So that helped me create and be part of a network, going to these training programs. You had the formal training, and then you’re meeting all these other clinical teachers and lawyers. You’re working together to divide up responsibilities for the teaching. There’s simulations where you’re giving individual feedback. So you’re teaching and you’re learning and you’re networking and you’re influencing each other. It kept the law schools involved in the legal services movement. So it had many benefits for me and for the development of clinical education, and hopefully for the legal services lawyers who went into it, some of whom, of course, would later become clinical teachers.
One of the ironies of it was we got paid 1/261st of our annual salary. That is the number of workdays per year. So as a law professor I was making about $15,000 and legal services lawyers were making about $9,000. The clinical teachers got paid much more per day than the legal services lawyers, who were the ones who needed the money the most. I don’t know where that policy came from, but it created some friction.
Ultimately the Legal Services Corporation moved away from clinical teachers. I guess Ron Simon, who later came to work with me, asked why do we have these clinical teachers? They don’t know anything. He decided to use legal services lawyers because the legal services movement had matured. There were legal services lawyers who had a lot of experience. So ultimately that changed, but it was very influential. The clinical movement had its own life.
Let’s talk a little bit about that. You’ve given a lot of good background for that, but where has it gone and what are some of the different approaches in the clinical movement?
Sometimes people look at clinical as part of a broader category I called experiential learning. I sort of choke on it, but I helped invent the phrase. It has three branches. One is simulation, which is what these training programs were. The other is a live client clinic. And the third is externships. So the part that I have spent my life involved with is in‑house clinical education. But just a word about the other two. So many of the early clinical teachers had to choose a path, and the path that some chose was skills. And that really was at the advent of NITA.
The National Institute of Trial Advocacy. And NITA was a non‑profit brand. The people who chose to do trial practice training and be the mavens of NITA made a lot of money in the end because they got paid for lots of the training they did.
Was that the Tony Amsterdam? Was he part of that path?
No, no. Tony’s been part of the in‑house clinical path.
But there was another path. The externship path said that students should be placed in legal services programs at other places and they will learn there. These days there’s always a seminar and teaching at the law school, but students can’t take full responsibility for a case there. So what we’ve done instead is create a model of education that puts a teaching law office in the law school. In my law school, it’s a big chunk of space right above where you and I are sitting now where the students practice law under the supervision of full‑time members of the faculty, all of whom have experience as lawyers. We divide them into different clinics. Right now, I teach in the civil advocacy clinic, but I’ve taught in a criminal clinic. I taught in a veterans’ clinic, which we’ll want to touch on. I taught in an international human rights clinic. I now teach in what is essentially general legal services program for the poor, which we call the civil advocacy clinic.
Just for the record, isn’t AU one of the top clinical schools in the country?
Absolutely. We made some choices early on that have been very beneficial. Again, going back to the beginning, the question was what’s the faculty status of a clinical teacher? Many schools gave clinical teachers no faculty status, or gave them adjunct or some other non‑faculty status. They didn’t participate in governance. They weren’t expected to produce scholarship. They were kept in the basement. Other schools did better and put clinicians on the tenure track or had some mixture. What happened here is a long story. But the short of the story is that I was the only tenure‑track faculty member here. I got grants to hire supervising attorneys who were not on the tenure track. The hiring criterion was, did they have direct experience in the exact cases that we were going to handle in the clinic? None of them, based on their educational backgrounds, would ever have been considered as a professor at the law school.
But that was all on soft money. People could stay up to two years. The soft money came from a combination of sources. CLEPR, the Counsel on Legal Education for Professional Responsibility, was the organization funded by the Ford Foundation in order to create clinical legal education. It was centered around legal services for the poor. But you could only get a CLEPR grant for a limited period of time. The school had to provide hard money funding in order to get more money. Second, there was some funding from LEAA, the Law Enforcement Assistance Administration, through the state commissions. That was available for criminal work.
Then there was a categorical grant program called Title IX — Title XI some years, Title IX some other years — of the Higher Education Act. It provided funding to start clinical programs. It used the same idea, because we got control of it. It’s a long story. But the short story is that clinical teachers, a group of us who were kind of the designated leaders to carry forth the mission after CLEPR ended, were able to meet and negotiate with the people who were in charge of handing out the money at the Department of Education. The head of the graduate programs grants was a guy named Don Bigelow and he loved us. He said, you’re the only reformers in all of legal education or higher education.
So we wrote the regulations that very much followed this CLEPR model of preferring programs that had a hard money match. You had to do something new and different each time to get a grant. They preferred programs where the faculty had faculty status. They preferred programs where there was credit. They preferred programs where the students represented real clients in real cases. The applicants would submit grant applications, and who were the grant readers but us. So we got to affect the course of clinical education through money. That money existed all the way until the Reagan administration.
Again, I mentioned these three paths. Well, the money was available only for in‑house clinical education, so many schools began to then see the possibility of having faculty because they needed them to get money. Meanwhile, this same group – the Key Biscayne Group, we were called, the Gang of Eight — we began to negotiate with a portion of the American Bar Association. Ultimately, that led to the adoption of an accreditation standard that was called 405(e) then and is now called 405(c). It required that clinical teachers have a substantially equivalent employment relationship to the rest of the faculty.
Schools have interpreted that in different ways. I saw at once that at the point where that came into being or was about to come into being, I happened to be, very conveniently, the chair of the clinical section of the Association of American Law Schools. I debated on the floor of the AALS house of representatives what should be the AALS position on this provision. They decided to oppose it. I argued that they shouldn’t. In any event, it came into being. At that point I could see the handwriting on the wall. I began to hire people here who could be hired onto the faculty.
I had Ron Simon here and Nancy Cook here and Bob Dinerstein and Ann Shalleck and Susan Bennett all in place at a time when we moved to have them all put on tenure track. They had the credentials. They went to Harvard, Yale, Columbia and Georgetown, and so they all had high academic credentials. Then they all had experience in public interest work. So they were different from the rest of the faculty, but they could be interviewed. The faculty had already gotten to know them. In any event, they were put on a tenure track. That was the most important thing that ever happened here in terms of the development of clinical education because suddenly I had hired people who were smarter than me and they could take this thing that I had created and make it great.
It was just one of those great moments of my life when I felt secure enough to have people around from whom I could learn. Ann Shalleck and Bob Dinerstein and Susan Bennett are still here. So American University became a place to develop clinical education. We’ve all been in leadership positions and we all write about clinical pedagogy. At this point we have 23 people teaching in our clinic full time, of whom 11 are tenured or tenure track.
We have something called the practitioner‑in‑residence program that was created during the time that Ann Shalleck was chair and director of the program. We bring in people who are about five years or more out of law school and we train them to be clinical teachers and they teach in our clinic and they get a chance to write. After they’re done their three years, they go out and get jobs. So 24 of the people who have been through this program are law professors around the country. So that’s the way we’ve influenced and been part of this really wonderful, wonderful movement.
As I understand it, virtually every accredited law school has a clinical program now, some more robust than others, but it’s become sort of an accepted part of the legal education.
Exactly. Absolutely. But not every school has provided the faculty status for clinical teachers. We are lucky here in DC because all of the DC law schools have clinicians on tenure track. George Washington University (GWU) was the last to the table. Georgetown University has a big clinical program, so does GW, American University, Catholic, Howard, and, of course, UDC. So clinical education is very much a part of the DC fabric in legal education.
I just came from a clinical teachers conference in Palm Springs. There were 700 people in attendance. The first clinical conference that I went to, there were 30 or 40. So it’s quite amazing. You’d have to guess there are a couple thousand clinical teachers if 700 would come to a conference. Not all of them were in‑house clinical teachers, some of them are externship teachers. But these conferences have been important vehicles for networking good ideas that work. That’s where theory comes from.
I want to pick up on a couple of things and then I’m going to come back. Just to make sure it’s all on the record, describe your role here in the law school. Ultimately you became the dean. Ultimately for a while you were acting president of American University. Just go through a little bit of that.
Well, it’s certainly nothing that I would have ever predicted when I came here. It happened because I was here as a reformer. I was pushing. So I started here in 1972. In 1988 we had a deanship that was failing. So we wanted the dean to step down. The faculty elected me essentially to be the interim dean for a year. Then at the end of the year, I had agreed to subject it to a faculty vote. The university went along. So I did get to become the dean for seven years. In one of those years, the university president went off to serve in the Clinton Administration so I became interim president of the university.
Of course, I loved that. Those are great platforms to talk about justice. It was a very nice part of my life and nothing I ever expected, but there it was. When it was over, I had to decide, do I want to go on? There was the option of pursuing presidencies and deanships. Who knows whether I would have gotten those jobs. But I decided that I wanted to go back and be a clinical teacher, to return to my roots. That’s what I’ve done.
While you were dean, if I recall right, you moved the law school out of very tiny, cramped quarters to this building.
Right. That was important. We were dying in the other building. We were spread into five different buildings in the university and we had the worst physical plan in the country. It’s a much too big a story that’s irrelevant to this purpose about what a struggle it was to get the building, fighting with neighbors over zoning, et cetera, et cetera.
More importantly, what I did as dean was to diversify the faculty and the student body. The school was founded by women in 1898. When I started teaching here in ’72, there wasn’t one woman on the faculty. Men had taken it over after World War II. So we began a project way back in the early ’70s of hiring women onto the faculty. We had one African‑American on the faculty when I started. We knew that we needed to both recruit students and faculty of color. That was a big project of my deanship that’s continued to this day.
The school has 40 percent, I think, people of color in the student body. It’s been a kind of a mecca for African‑American faculty. I can’t remember off the top of my head what the number is, but it’s transformative to teach in a classroom where half the students are black, Hispanic or Asian. That’s quite nice. So that was something that I began during my deanship. We also hired a number of progressive faculty during the time that were committed to this cause. The idea that the school had a clinical dean mattered a lot too because one of the things I did as clinical director was fight with deans. It turned out that, when I was the dean, I didn’t have to fight with me.
Well, there’s a couple of other things in your life that are worth talking about. One of them was the National Veterans Legal Services Program. Describe how that started and what that is.
Maybe I get too personal or revealing here, but I always felt like I had not enough experience as a lawyer. I came here three years out of law school to start the clinical program. So I applied for and got a leave of absence to go do something. I started looking around at what lawyer thing would I do. I had a friend, David Addlestone, who was the head of what was the ACLU’s military discharge review project.
Somehow in talking to him, we came up with the idea that we could establish at the law school a veterans law center. They called it the National Veterans Law Center. David and I were able to take some of the resources that I had in one of the clinical programs and combine it with him and get we got some grants and we created this program, David Addlestone, Bart Stichman, and I. Then we hired another lawyer who was a clinical teacher. We had an idea that this would be both a clinical program where students would represent veterans largely in disability claims but also would work alongside the public interest lawyers, who were the veterans’ lawyers, on law reform cases. So it was a combination of big cases and little cases.
In the second year, Ron Simon came over from the Legal Services Corporation and we began to get more and more funding, including from the Legal Services Corporation, to become the backup center on veterans law. That branch was called the National Veterans Legal Services Project. We had money to do a publication. So we had a big publications department. We had a psychiatrist on staff. We had a psychiatric social worker. It was big. It was really exciting.
Unfortunately, it was hard to run both the clinical program and this backup center at the same time. They were kind of incompatible because my agenda was to have students have responsibility for legal work, and nobody was going to let a student go into federal court and argue a motion in a cause of action against the Department of Labor. It just wasn’t going to be. We had filed the Agent Orange cases and the cases for atomic veterans and cases about the veterans regulations. Those cases were too big to let students have the responsibility. There was also tension for how the lawyers would spend their time divided among teaching and doing the legal work. I was still learning about what were we teaching in the clinical program.
So ultimately we had what we’ll call a friendly divorce. I guess after, I don’t know, five, six years, they went off on their own and we continued to do veterans work in our clinic, but the National Veterans Law Center was no more. But they’ve prospered over the years and continued. Bart Stichman’s still the head of it and David retired. So I’m very proud of that part of my career. It was, again, more connections with legal services, with legal services lawyers.
You may not remember this, but I was the one that funded it from LSC.
Oh, I remember that very well. We did whatever we could to suck up to you and to do good work.
Yes. It’s a terrific organization. I want to cover a couple of other things. First I want to do AALS, and then we’ll come back to Ed Meese and then maybe some other stuff. You ultimately became the chair or the President of the American Association of Law Schools.
Only because they didn’t have emperors.
I see. And if my memory is right, and you’ll correct me I’m sure, I think you were the first clinician to ever be the chair of AALS.
So describe a little bit about AALS.
All right. So the Association of American Law Schools is the learned society of legal education. It’s divided into substantive sections. Each section could be around either a subject matter or an interest. So there’s a minority law teachers section, there’s a legal history section, there’s a civil procedure section. There’s an annual meeting every year. Again, this Gang of Eight negotiated to have an annual clinical teachers conference. We’ve had one every year since the 1970s. So I’ve had a lot of involvement with the AALS.
The AALS also has a set of membership requirements. When law schools are accredited, they mostly deal with ABA but also a representative of the AALS. And so it’s been a force, it’s been an interesting force for good. The AALS passed a nondiscrimination provision about sexual orientation and then pressured all the law schools that wanted to stay as members to have that as part of their nondiscrimination policy. The big victory was all these religious law schools — Notre Dame and the Mormon Reuben Clark School of Law at Brigham Young in Utah – ended up adopting nondiscrimination provisions and requiring that any employer who came to campus to interview had to agree to sign the statement. I was on all these committees that did all this.
As you might recall, the military didn’t permit gays, and so we said that you can’t have military recruiters because they can’t sign the nondiscrimination clause. Congress kicked back with the Solomon Amendment that said you’d lose all your federal funding, but it was a real tussle. So then every law school had to do something when the military came to show its support for gay and lesbian students, faculty and staff, like a demonstration or passing things out in the hallway. So I was very much a part of all of that because I was on every committee to deal with it.
Meanwhile, there’s something called the executive committee. Having served on so many AALS committees, I got elected to the executive committee for a three‑year term. At the end of that three‑year term, I got elected to be the president of the association. That was another three‑year term on the executive committee. So I had six years there and had a great run of it.
While you were president, you had an equal justice initiative.
Yes, I did. Michael Tiger said to me when I got elected, “You know, you only get to do this once. You can’t be re‑elected. You’ve got one year. Do something meaningful with it.” The president gets to essentially have a presidential initiative. Mostly, the presidential initiative involves deciding what the theme of the annual meeting is and having panel discussions about it and giving speeches about it. But I called a meeting of some of my clinical teacher friends from around the country. We sat around my dining room and said, well, what can we do with this? This is an important platform. What we came up with was something we called the equal justice initiative. The idea was that law schools got bragging rights for scholarships. They got bragging rights for different kinds of things. But nobody was claiming bragging rights for what they did to promote access to justice and the quality of work done on behalf of poor, disenfranchised, powerless people.
Being clinicians, we came up with this grandiose vision that I applied and got a grant for from the Open Society Institute. We hired Dean Rivkin from the University of Tennessee, an old legal services lawyer, a former Reggie, to be the staff person in charge of it for some part of his wages. We ran about 18 colloquia around the country at which law school faculty or law schools should present things that they’re doing or planning to do. That could be teaching, scholarship, and service in support of equal justice. So how does the faculty member’s scholarship affect equal justice and what could you do to make scholarship more directly useful to this constituent community? What service projects could a law school undertake that would promote these values? What were the connections with legal services programs? What would you teach in your classroom about it? It was a multitude of things. You’d be surprised at how little law students know about the way legal services is funded or how the turn away from public funding and legal services has affected its availability.
So we went around the country and there were all these colloquia. We tried to get every law school in the country to be involved. That’s why we did it all over the country. It wasn’t just the annual meeting. An example here was Jamie Raskin had written an article about noncitizen voting. He lives in Takoma Park, Maryland, so he first wrote it as a law review article about the constitutional basis for it.
He teaches here at American University. He’s a state senator, right?
Yeah, he teaches here and he’s running for Congress now but this is way back then.
So he then wrote op‑ed pieces about it and then he ultimately led a campaign to get noncitizen residents, people with green cards, the right to vote in Takoma Park in local elections, and they do so to this day.
So there were examples like that all over the country of ways in which people turned their scholarship into action. I don’t know anymore how many people presented at these conferences. The culmination of the project was at the annual meeting with our presentation of the results. Again, this was a combination of video and speakers. Jim Liebman from Columbia talked about all his empirical research about the death penalty. It was great and I was very, very proud of it. The AALS has never done anything like this before or since. But it did give law schools the bragging rights, and they still do it. It’s still going on.
I was president in the year 2000 ‑‑ could it be that long ago? But still, the idea that law schools get credit in the world for the work they do to promote access to justice and equal justice is still going. What a privilege it was.
Yeah. I think you put out a little book toward the end.
Yeah, there’s a publication. And we involved you in it. Because you had your book on the history of legal services.
Right. And a whole bunch of people were involved.
So I’m very, very proud of that. It was like opening up this presidency to this community of people who had these beliefs, all lurking inside many schools where previously the only thing that mattered was what article you published in what law review. Suddenly they could talk about their pro bono work. It was good. We purposely did not say this is all about clinical education because if the only thing the law school was doing was clinical education, then that wasn’t enough. It couldn’t be just be a burden on the clinicians.
One other issue that I want to touch on was when President Reagan was elected, he wanted to get rid of the Legal Service Corporation. Ed Meese, the Attorney General, had some ideas of what could be done instead. I know you played some role in all of this. So why don’t you describe what they did and what you did?
They decided that they would carve out a portion of the money that otherwise had gone to field programs and legal services and make it available to clinical programs so that they could provide services more cheaply. There were some real flaws in this plan, one of which is that clinical education is actually not a way to provide cheap legal services even though for the unthinking it is. But any one of us who teaches in the program can handle a much bigger client case load by ourselves than you can if you’re supervising eight students. Case loads in most clinics are quite small. This semester I had eight students and, at any given time, my eight students had a total of fifteen cases. So that’s not a cost effective way to provide legal services. It’s not an efficient model. So that was one of the problems.
The other was that it wasn’t like all the sudden there would have been a new appropriation. To take the money was to take it away from legal services programs. So for many clinicians this was a kind of a moral test. We were all trying to raise money to expand our programs, but many clinicians refused to apply for this LSC money. Many law schools refused to apply for this money. People had pressure from their deans, but because it was a movement it was easy enough to say, well, nobody’s doing it.
Of course, there were some schools that did do it, and for the most part, they were schools that had high‑volume practices. One example was the University of Tennessee. The legal services program for I guess that’s east Tennessee was always located in the law school. In those days, that was where the program was located. So it wasn’t a problem for them to take the money. But for us, we considered it immoral. It was, one way of pushing back against Ed Meese.
Ironically, when I was president of the university, one of the members of the board of the university was Ursula Meese, the wife of Ed Meese. When they had a dinner to honor my year as interim president, Ed Meese was there. But I didn’t mention this to him.
Before we close, and you’ve touched on this a bit, but you’ve been a major player in clinical education as we’ve heard. Where would you like to see it go from here, or where do you think it’s going from here?
The social justice mission of clinical education has always been part of what we’re trying to do. I like to think of myself as standing on the shoulders of my students and whispering in their ears to help them see what they’re looking at. So they see the way race works or the way poverty works or the way law works in the lives of the poor. We have to keep that alive in clinical education because it’s so easy to ignore income inequality and the like. So that’s always been an important strain.
But there’s this other piece, which is the values piece. Isn’t it irresponsible to have people practice law who’ve never been supervised in this first developmental moment where adulthood begins. I mean, adulthood begins when you have responsibility in a professional role for another human being. That’s such a powerful moment where you acquire your attitudes and beliefs about what your responsibilities are and how to carry them out. We clinicians believe that that moment best occurs under the tutelage of someone who’s hired and trained for the purpose of transmitting the best values.
So where we have to go is we have to have universal clinical education. It has to be part of the legal education of every lawyer. That means in most places already that not every clinic is driven by the same mission. There could an intellectual property clinic, but it stays on the public interest side. We have, of course, a community economic development clinic, which is our business clinic. That’s on the public interest side. We have a tax clinic that only represents people with economic need. But you could have clinics that do other kinds of things we need to capture. If we were only training future legal services lawyers, you would design the program in one way. But given that most of our students go to law firms or government and only a minority go to public interest practice, you have to capture all of them. That’s true in every school. So I guess my dream as it goes forward is that everybody who is to become a lawyer has a professor, a teacher, someone with appropriate justice goals as their guide.
Finally, is there anything you want to add that we haven’t covered?
You know, I reflect on the work of our generation. Are we depressed because the social conservatives have so much power, or because we completely have failed at the task of income redistribution? It’s worse than when we started. The funding for legal services is so diminished. The reliance on pro bono lawyers who don’t have the expertise is too great. So in that way we could say we have failed.
But if we look at other things like the women’s movement, racial equality, gay rights, we’ve done very well. If you look at the quality of lawyering in most places, it’s gotten better. So has the intolerance for corruption. I think there’s certainly corruption, but there’s less of it. So I think in many ways we have achieved some of our justice goals even if not all of them. So I feel like this glass is still a quarter full, and that’s not a bad thing even though we should’ve and could’ve and might’ve done better. That a good coda?
It’s great. Thank you. And we appreciate it.