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Law
Students in Action
Known
best for its roster of corporate rainmakers, secretaries of state,
and U.S. presidents, the Yale Law School also has a long tradition
of training students in the hands-on business of helping those in
need.
December
1995
by Patrick Dilger
Patrick
Dilger covers Yale for the New Haven Register.
In his
recent book The
Lost Lawyer, Yale Law School dean Anthony T. Kronman laments
that the practice of law has lost its moral compass, and
become inexorably more like a business with no ethic other than
that of the marketplace. While the legal profession remains influential
and powerful in American society, the set of values that once defined
the aspirations of outstanding lawyers has withered away, he says.
"Lost in the process is the sense of law as a public calling
that imposes on all who practice it a duty to advance the public
good and to behave with the civility that this entails," Kronman
writes.
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Popular respect for the profession of law dipped measurably during the O.J. Simpson trial.
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According to Kronman,
who succeeded Guido Calabresi as dean of the Law School in 1994,
popular respect for the profession of law -- always tenuous at best -- dipped
measurably during the prolonged O.J. Simpson trial, which, he feels,
highlighted the need for rethinking many established legal procedures.
At a time when more scorn and less money in a shrinking job market
have dimmed the lure of law as a career, applications to many law
schools have slumped, from 94,000 in 1991 to 78,000 this year. Yale's
applications have also dropped somewhat, but the number of students
accepting the school's offer of admission has actually risen. And
while its number-one ranking in the annual U.S. News & World
Report poll (for the sixth year in a row) no doubt has something
to do with that, so, Kronman insists, does the school's reputation
for teaching its students to do good as well as to do well.
Kronman feels strongly
that to regain the legal profession's moral stature, everyone in
it -- lawyers, judges, and legal educators -- must act to recapture the
ideals of citizenship and public service that have been the pride
of the profession in the past. To demonstrate Yale's commitment
to that task, he points to the School's clinical programs, in which
legal theory is inextricably entwined with practice and public service.
Instead of poring over legal tomes or acting out "moot court"
cases with no real consequences other than a grade, clinical students
at Yale Law can be found counseling the homeless in rundown apartments,
soliciting testimony from asylum-seeking refugees, or striding the
catwalks of maximum-security prisons. All the work is provided without
charge. "To be able to see the law in action, in a positive,
human dimension, is a great lesson for a lawyer," says Jay
Pottenger, the Nathan Baker Clinical Professor and director of clinical
studies. "It's a powerful way for students to learn what's
going on in the real world."
The impact of Yale Law
in action has been felt from the humble confines of New Haven's
housing court to the august chambers of the U.S. Supreme Court.
In cases that have drawn national attention, students in the Allard
K. Lowenstein International Human Rights Law Clinic have successfully
upheld the claims of Haitian and Cuban refugees against the legal
challenge of the U.S. government. Under the leadership of Harold
H. Koh, the Gerard C. and Beatrice Latrobe Smith Professor of International
Law, students have also won more than $100 million in cases against
international political leaders accused of atrocities.
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"At Yale we view the law as a living political and social organism."
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Koh, who helped to establish
the Lowenstein clinic five years ago at the prompting of his students,
calls its participants "pragmatic idealists who just want to
do more than tilt at windmills. I think they really have a sense
that their education is a means of preparing them for a social justice
role; they have an instinct for the underdog. People are being railroaded,
and the students don't want to wait until they graduate to do something
about it."
In response, Yale Law
graduates have founded and led such diverse public interest organizations
as the Ashoka Foundation, the Children's Defense Fund, and the National
Resources Defense Council (NRDC). In New Haven, across Connecticut,
and in New York City, students have brought scores of lawsuits -- both
class-action and on behalf of individuals -- through the seven clinics
of the Jerome Frank Legal Services Organization. LSO students created
Home, Inc., the major developer of affordable housing in New Haven;
established a daycare center for children of teenage parents at
the city's Wilbur Cross High School; and won a $1 million judgment
against a landlord in a case involving lead-paint contamination
of children.
"In law schools
it's rare to get a chance to do legal work of political and social
importance," says Graham Boyd '92JD, who litigated Savage v.
Aronson, a class action lawsuit representing 2,000 homeless Connecticut
residents in 1989 and 1990. In that landmark case, the plaintiffs
won a year-long injunction preventing the state from evicting homeless
families from emergency housing in welfare motels. Although the
injunction was reversed by the state supreme court, the lawsuit
did result in the establishment of a rental assistance program by
the state legislature. "This showed me that practicing law
isn't about winning cases, it's about achieving results," says
Boyd, who went from the law school to the NRDC in San Francisco,
where he represented low-income families afflicted by environmental
hazards such as pesticides.
The clinical programs
at Yale are rooted in the educational movement known as "legal
realism" that was developed in the 1930s and continues to influence
Yale Law School thinking. Legal realism shunned the traditional
view of the law as an abstract set of legal procedures. Its adherents
believed instead that the law ought to be considered within the
larger framework of economics, philosophy, sociology, and the other
social sciences. "At other schools they study the law as a
free-standing mechanism, whereas at Yale we view it as a living
political and social organism," Kronman says.
"If we focused
only on the techniques lawyers use, we might turn out nothing but
legal technicians," says Stephen Wizner, who in 1990 was named
the first William O. Douglas Clinical Professor of Law at Yale.
The chair was one of the first in the nation designated for a clinical
faculty member. In Yale's clinics, students are given a setting
in which they can learn the proper and most effective way to represent
clients. "The goal of clinical legal education -- and it should
be the goal of all legal education -- is to teach students to be lawyers,
not just to 'think like lawyers' or 'act like lawyers'," Wizner
says.
For Michael Wishnie
'93JD, there was no better way to find out what it was like to be
a lawyer than the 20,000 hours that he, 100 other students, and
13 faculty members collectively logged during the Lowenstein clinic's
representation of Haitian refugees in 1992 and 1993. Students challenged
the Bush and Clinton administrations' policy of summarily returning
all fleeing Haitians to their homeland, ultimately losing in the
U.S. Supreme Court. But they did win a district court judgment that
ordered the release of more than 200 Haitians who were being held
behind barbed wire at Guantanamo Naval Base, and all the refugees
were allowed to enter the United States.
That victory was particularly
sweet for Wishnie, who spent last year working for a legal aid clinic
in Brooklyn, New York, the new home of many of the Haitian refugees
he had helped as a student. During the course of the litigation,
Wishnie and other students played a lead role, from filing briefs
and motions to compiling testimony and interviewing witnesses in
court. But they also learned to perform multiple tasks, balancing
the role of lawyer with those of social worker, medical adviser,
press agent, and lobbyist.
"I'm sure the U.S.
government thought it was dealing with a bunch of kids," Koh
adds. "But it soon learned differently. After all, these are
individuals who could be writing Supreme Court opinions some day."
Koh himself calls the
Haitian litigation a "career-transforming experience." A Harvard law graduate with a background in international business
law, he had initially been reluctant to step into public interest
and pro bono work. Indeed, in 1991, when a group of students asked
him to teach an international human rights clinic, he told them
he was "too busy." But the students persisted, and the
new clinic was duly established. (It was named after Allard Lowenstein,
a graduate of Yale Law School who had been a political activist
and former United States ambassador in the Carter Administration.)
Koh agreed to teach the course along with Michael Ratner, an experienced
human rights litigator from the Center for Constitutional Rights
in New York City.
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In five years, Koh and the students have had lost just two of 15 cases.
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In the first few semesters
after the clinic was established, briefs were filed against such
prominent world leaders as former Filipino president Ferdinand Marcos,
Indonesian general Sinton Panjaitam, and former Haitian dictator
Prosper Avril. In 1993, the Lowenstein clinic won a $41 million
judgment against Avril -- who was living in luxury in Miami -- for the
torture of six Haitian political and labor leaders. During that
lawsuit, Koh and his students encountered the newly elected Haitian
government of Jean-Bertrand Aristide. It was Aristide's overthrow
and the subsequent flight of thousands of Haitians that launched Haitian Centers v. Sale, a case that went to the Second Circuit
seven times and the Supreme Court six.
Koh says that during
the 3,000 hours he logged on the Haitian case he was constantly
driven by the memory of how his parents had been given refuge in
the United States when the government of their native South Korea
was overthrown in 1960. Yet when the Haitians sought refuge in the
United States, they were returned to those from whom they had been
fleeing. "The critical issue is that our government is prepared
to say that people don't have human rights because they're not part
of our national interest," says Koh, who earlier this year
helped win the release of several hundred Cubans interned at Guantanamo
Naval Base -- again, despite an initial reversal in court.
Koh's leadership role
in the Haitian and Cuban cases earned him piles of hate mail, much
of it racist in tone. But in the five years that he has been working
with the clinic, he and the students have had much to savor, losing
just two of 15 cases. According to Michael Posner, executive director
of the Lawyers' Committee for Human Rights in New York City, the
Lowenstein clinic has become one of the most innovative and respected
legal advocates for international human rights in the country. "They've
done a terrific job of combining an academic setting with an activist
perspective," Posner says. "Harold Koh, with his energy
and expertise, has mobilized these students into a real force."
The latest international
leader to feel the legal force of the Lowenstein clinic was former
Guatemalan general Hector Gramajo -- who was served with a lawsuit
as he stood in academic robes at Harvard's Kennedy School of Government
graduation ceremonies in the summer of 1991. The suit, filed jointly
by the clinic and the Center for Constitutional Rights, detailed
alleged atrocities overseen by Gramajo during a scorched-earth military
campaign against the Kanjobal Indian population in Guatemala's western
highlands during the 1980s.
In April of this year,
a U.S. District Court judge leveled a $47.5 million judgment against
Gramajo, saying that, "at a minimum, he was aware of and supported
widespread acts of brutality committed by personnel under his command,
resulting in thousands of civilian deaths." With that award,
the Lowenstein clinic has now won more than $102.5 million in judgments
against foreign leaders accused of human-rights violations.
While clients may never
receive the money awarded in civil suits against foreign leaders
like Gramajo, the judgments serve notice that those who commit acts
of torture and genocide will be ostracized on the world stage, says
Ronald Slye '89JD, supervising attorney with the clinic. Cooperating
with agencies such as Human Rights Watch and the Constitutional
Center for Human Rights, the Lowenstein clinic pursues alleged violators
such as Bosnian-Serb leader Radovan Karadzic -- another pending case -- under
the Alien Torts Claim Act of 1789, which allows non-U.S. citizens
to sue here for violations of international law. As well as vindicating
the plaintiffs, the judgments effectively freeze any financial assets
the defendants have in the United States, dent political aspirations
such as those entertained by Gramajo, and can be used to leverage
punishments such as economic sanctions. "And they send a strong
signal that the U.S. is not a haven for murderers," Slye says.
Koh sees international
human-rights litigation as the natural successor to the pursuit
of civil rights cases by students in the 1960s and the environmental
litigation that emerged a decade later. He bristles at any suggestion
that his students might be idealistic do-gooders who will abandon
their principles for plush surroundings when they leave law school.
Of the initial group of 30 students who worked with him on the Haitian
case, not one has gone into corporate law, he says. Several are
serving as judicial clerks, while others are working in areas such
as environmental conservation, immigration rights, and advocacy
for the homeless. "The real question is how they achieve so
much with so little," Koh says. "It's difficult to win
when the state is on the other side, with unlimited financial resources."
Operating on limited
funds is a way of life for Lori Nordstrom '94JD, who scrapes by
on barely $15,000 a year as she operates her fledgling Legal Advocacy
for Teens in New Haven. Her work will likely never bring her national
headlines, yet she plays a vital role as she fields calls late into
the night from youngsters who are living on the streets, struggling
to stay in school, parents long before their time.
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About two-thirds of all graduates have worked in the clinical programs.
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"Teenagers don't
conveniently have their crises between 9 and 5," Nordstrom
says. "A lot of calls come in at 11 p.m. -- and then they'll tell
me they're going to be in court next day." Nordstrom witnessed
the difficulties of inner-city youth first-hand when she and other
students in LSO's Poverty Clinic set out to establish a daycare
program for teenage mothers at New Haven's Wilbur Cross High School
four years ago. Many of the young mothers had dropped out of school
to care for their children because the cost of daycare at private
agencies would have quickly consumed their subsidies, Nordstrom
says. Rather than take the case to court, the students negotiated
with school and government officials, wrote grant proposals, drafted
legislation, and set up a community board to make the center a reality.
While many of her former classmates joined the 40 percent of Yale
Law graduates who typically take jobs with corporate law firms,
Nordstrom set her sights on public interest law and developing her
own legal advocacy program -- a goal she says was nurtured by her mentors
in the clinical programs.
"We're famous for
that, although other people think we're lunatics," says Professor
Robert Solomon, who founded the Poverty Clinic at the behest of
students in 1986. "We try to let students make decisions and
give them the freedom to try unique, meaningful projects,"
says Solomon, who calls Nordstrom's work with teenagers "an
example of what you'd like to see from life, not just from a law
school graduate." In its first four years under Solomon's direction,
the Homelessness Clinic, as it was then called, intervened in six
suits and prevailed at the trial level in each case, either through
judicial decision or consent decree. The cumulative dollar value
to clients in those cases was at least $100 million, and the decisions
in at least three of those cases were cited nationally.
The emphasis on real-life
cases is one element that sets Yale Law School's clinical programs
apart from those of other leading schools, where clinical programs
are often understaffed, and usually intended primarily for third-year
students, who are unlikely to see a whole case through to resolution.
But at Yale, students get the chance to do clinical work from their
second semester, and many continue into their final year. About
two-thirds of all graduates have worked in the clinical programs -- a
much higher percentage than at other schools. Students are expected
to work eight to 15 hours a week on average, but many contribute
much more time. "The clinic in many ways takes over your life,"
says Harold Rose, a third-year student. "These are people's
lives you're dealing with, and you can't make anything less than
a professional commitment."
Some students have taken
that commitment a step further by establishing public service projects
such as New Haven Cares, a collaboration with local merchants that
produced a voucher program for panhandlers. (Shoppers purchase the
vouchers and give them to panhandlers, who can redeem the vouchers
for food and services at participating businesses instead of spending
money on liquor or illegal drugs.) Student lawyers have also helped
to incorporate, obtain tax exemptions for, and structure public
service organizations through Professor John Simon's Nonprofit Organizations
Clinic, which he jokingly calls "SIN: Service to Impoverished
Nonprofits." Among the dozens of groups served by the clinic
are REMEDY, a Yale-New Haven Hospital project sending surplus supplies
to third-world countries, and the Archimedes Group, a disability
information organization started by disabled Yale Law student Ed
Bennett '84, '96LAW. The experience is particularly valuable for
those who want to go on to do work for foundations, universities,
and other nonprofit institutions later in their lives. Says one
student lawyer: "It's small-scale now, but the questions are
the same ones I'll be handling in New York, only there will be more
zeroes after the numbers."
For many students, it
is those zeroes that draw them away from public interest law after
being steeped in its tradition and practice through the clinical
programs. Job openings in the field are few because of funding shortfalls,
and the pay is not commensurate with the workload. Ana Bermudez
'92JD earns about $38,000 as a legal advocate for abused and neglected
children in the tough neighborhoods of the Bronx with New York City's
Legal Aid Society. "I didn't go into this line of work for
the money, but at times it's still really hard to swallow when I
think of what I could have been making," says Bermudez. (The
median starting salary for Yale Law graduates entering law firms
in 1994 was $83,000.) She is now working with the Law School's clinical
program providing legal services to individuals with HIV and their
families under a one-year Robert Cover Public Interest Fellowship,
one of two funded at Yale by the Legal Services Corporation.
Solomon, for one, believes
that wealthy schools like Yale need to do more to provide financial
incentives to offset the long hours and poor monetary returns of
work in public interest law. For example, a $2 million endowment
at 5 percent interest would fund four $125,000 jobs annually, he
says. "We've done a good job at loan forgiveness, but that
still doesn't pay the rent and buy the food."
Yale's loan forgiveness
program, already the most generous in the country, was expanded
by $6 million in one of Kronman's first major moves after assuming
the deanship. Known as the Career Options Assistance Program, or
COAP, it was designed as an inducement for graduates to pass up
corporate jobs in favor of public interest, academic, and government
positions as well as low-paying private practices. Under the program,
graduates with annual incomes of less than $34,300 receive grants
to pay all student loans for every year that their salary falls
below that level. Students who earn more than $34,300 must pay a
quarter of everything earned above that toward their tuition debt;
the school covers the rest. As well as increasing the school's financial
commitment from $19 million to $25 million, repayment assistance
will now be based on a period of ten years, rather than 20, and
additional payments will be provided to compensate for the tax liability
that recipients bear under the current law.
Kronman, who added a
position in the Law School's placement office specifically to help
students find public interest jobs, calls COAP "as valuable
a tool to promote public service as I can imagine" and says
it is indicative of his support for the clinical programs and the
tradition they promote. "I was personally shaped by this tradition
as a student here, developed it naturally as a faculty member, and
will continue to nurture it as a dean," Kronman says.
For graduates like Nordstrom,
the additional financial support is welcome, but money isn't everything,
she says. "I've had people tell me I'm crazy to pass up the
big bucks, but when I meet clients who have to borrow money day-to-day
to buy milk for their children, that puts it all in perspective."  |
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