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Law Students in Action
Known best for its roster of corporate rainmakers, secretaries of state, and US 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 ’8,000 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 Guantánamo 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 Guantánamo 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 $4’.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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