Document Type

Article

Publication Date

1996

Abstract

In 1992, when the University of California's Hastings College of Law decided to offer a live-client clinic for the first time, its newly hired director had to make several decisions about what form the program should take.1 The first question for the director was whether the clinic should be a single-issue specialty clinic or a general clinic that would represent clients across several areas of the law. The second question, and the one that will be the focus of this essay, was whether the program should restrict its caseload to "easy" routine cases or also accept non-routine, less controllable litigation. Before addressing the second of these questions, I want to take a moment to consider the first. The choice of specialty clinic versus general clinic is an important one because a clinic's structure cannot help but determine what values and skills it will teach. For specialists, the limited range of their work offers multiple benefits: Students get to handle routine cases in a way that lets them build on what they have done before,2 and students are better positioned to see the broader policy issues within the specialty, as well as to engage in law reform. 3 Generalists, on the other hand, argue that students develop a more open-minded approach to law when every intake is a mystery trip and students cannot operate from preconceived ideas or patterned expectations. 4 Generalists also point out that students and teachers prefer, and benefit from, variety. 5 Fortunately for law students, most schools are not faced with the Hastings choice of offering exclusively a specialty clinic or a general clinic. Law schools typically offer both kinds of programs, allowing students to choose the clinic that suits them best.6 At some schools the clinical faculty can choose, too. They can move back and forth from one program to another, or they can create an entirely new clinic. They might build up a specialty clinic for a time, and then abandon it for some other project, in effect changing specialties every few years to keep themselves fresh. As law schools have put more resources into clinical legal education, the debate over specialty versus general clinics has waned, but the second, related question has not gone away, in part because it affects specialists and generalists equally. Clinical teachers of both stripes face the dilemma that the director at Hastings had to answer: Should a program limit its intake to "easy" cases (that practicing lawyers and non-clinical faculty often assume are most appropriate for law students), or should a program also accept "hard" cases - the non-routine, atypical litigation that is certain to darken the door (or brighten the horizon, depending on your point of view) of specialty clinics and general clinics alike? A working definition of these terms is essential here. My benchmark of the "hardness" of a case is the extent to which it (1) poses the risk of taxing the program's resources; (2) may be controversial either in the public eye or to some constituent group of the law school; (3) is likely to outlive (figuratively if not literally) the students assigned to it; and (4) presents legal issues of a scope, scale, character, or complexity not ordinarily handled by the program.7 Probably the best example of a "hard" case - maybe the quintessential example - is the DeBoer custody battle (also known as the Baby Jessica case), which was litigated by Michigan's Child Advocacy Law Clinic (CALC) in 1992-93. Prior to accepting the DeBoer case, CALC students had practiced almost exclusively in the probate courts, handling abuse and neglect cases at the trial level only. Although CALC students had occasionally written an amicus brief on appeal, or drafted proposed legislation, their bread-and-butter work was to serve as prosecutors, defense counsel, or guardians ad litem in termination of parental rights hearings. At the start students and faculty debated about whether or not the Child Advocacy Law Clinic should accept the DeBoer case. They foresaw that it might monopolize their time and consume their limited resources. They disagreed about the merits of the case and the policy issues underneath it - the rights of natural parents versus the rights of adoptive parents versus the interests of children. In the end the issues tipped the balance. The clinical teachers, who were forging their careers around child welfare law and reform, could not say no to a case that might re-define that law. The CALC students, in turn, could not help but be intrigued by a case that went to the heart of the policy issues they were studying. Predictably, the case generated a firestorm of publicity. People and Time magazines put it on their covers. The New Yorker described it in a feature article. Court-TV broadcast live the eight-day "best interests" evidentiary hearing in circuit court. And within six months of the end of the case a television movie had fictionalized the story. Regardless of where one came down on the issues, the case itself was a galvanizing event. It focussed national attention on public policy questions that had escaped scrutiny in the past. It reminded us how statutes affect people in their everyday lives; how our culture is defined by the values reflected in the text of those statutes; how our state court systems operate independently but subject to the unifying force of the federal constitution; how law blends with other fields like sociology and psychology; and how lawyers play a role in their clients' lives, and their clients' children's lives. But just because the DeBoer case raised interesting issues does not mean that a clinic necessarily ought to litigate it. Without denigrating the educational value of repetition and expertise (the forte of specialists), and without criticizing the wonders of the unknown (the forte of generalists), I want to make the case for the "hard" case, in both settings.8 But the case for the "hard" case is not an easy or selfevident proposition, and the arguments against it are formidable. Let me start with them, despite the risk that I will appear to be setting up straw targets only to knock them down.


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