In Place Of Torts, Social Justice

In one of the most remarkably absurd non-sequiturs that ever emitted from the mouth of a law school dean, AALS president Kellye Testy explained that the law school crisis was over because law schools could enable students to pursue social justice. But the ridiculousness of Testy’s response doesn’t stand alone, and is part of the new package that law school is selling to young people who aren’t put off by non-sequiturs. Or lack of fully formed thought. Or, well, thought at all.

Apparently, social justice is the new snake oil, and law schools are the new snake oil marketeers.

Many, if not most, law schools proclaim that they will advance “social justice.” My own law school recently pledged to use part of the generous 100 million dollar gift from the Pritzkers to do just that. Generally the pursuit of such justice is done through clinics, which represent clients, but have larger objectives in their choice of representation, such as ending the death penalty, protecting rent control, or increasing environmental regulation.

Beyond this abstract tension, the pursuit of a particular vision of justice can make it harder for research faculty to pursue opposing viewpoints. Some years back, Northwestern Law School’s criminal law clinic crusaded successfully for a moratorium on the death penalty in Illinois. This effort became part of the school’s identity. In that atmosphere few professors would have had the temerity to start writing in favor the death penalty.

If a law school is going to market itself as the cool place of social justice, thus taking sides in political issues by shooting for the hearts, if not minds, of potential debtors, it then becomes critical to identify what exactly social justice means, and how one distinguishes between two sides, both with valid contentions, when trying to upsell students who cannot, as yet, grasp that there are meritorious arguments that are contrary to their feelz.

The second problem  is that there is disagreement about the nature of social justice, but law schools tend to define it from one perspective–that of the left.  Indeed, the term social justice might be regarded itself  as ideologically loaded. Libertarians, for instance, might think that justice is always individual justice. But, in any event, one can disagree about the justice of the death penalty or rent control.   Few, if any clinics however, are devoted to defending the death penalty or representing the families of homicide victims or deregulating the economy. The one-sided nature of social justice pursued also has an adverse effect on the intellectual atmosphere. The research faculty at the typical law school leans decidedly left to begin with, but the largely uniform left inflection of social justice clinics makes for an even more insular ideological climate.

When I asked how law students could distinguish between the merits of the prosecution and defense of criminal cases, for the purpose of establishing which side constituted “social justice,” a law student decided to explain it to me.  It was, sadly, gibberish.

But this same law student had a blog, which provided me with far greater insight into what students expect of their law school in the pursuit of social justice.

  • UW Law has a history of student-led progress for racial equality. In 2013, student opposition extinguished plans for a proposed prosecution clinic at the school. In 2014, Critical Race Theory was finally added to the curriculum in response to student action. Although movements like these are important and admirable, they leave all of the work to already over-worked students and are radically insufficient. The institution is in need of a cultural shift.

Ironically, the University of Washington School of Law happens to be where Kellye Testy gets her paycheck, so her rhetoric aside, her efforts to turn the school into a social justice paradise are “radically insufficient.”  It’s unclear what makes the insufficiency “radical,” but who doesn’t appreciate the word “radical” for emphasis?

And yet, I received an answer to my question. Through student opposition, they “extinguished plans for a proposed prosecution clinic,” and this was an “admirable” success in furtherance of the cause of social justice.  This was quite surprising, and in stark contrast to what the student subsequently twitted.

It’s not that criminal defense lawyers have any particular sympathy for the prosecutorial function, but we are members of society like everyone else, and every thinking person ought to be capable of appreciating that both functions, prosecution and defense, are necessary.  Every person deserves a defense, and the protection of their constitutional rights.

But there are bad dudes out there, harming people, who need to be prosecuted and punished. Nobody is more aware of this than criminal defense lawyers, because we spend a lot more time with bad dudes than anyone else.  Anyone who doesn’t comprehend the yin and yang of crime is, well, stupid.  Anyone who believes one side sits at the right hand of the social justice god is “radically” stupid.  And what that person cannot be is a lawyer.

I get it, that law schools have mouths to feed, seats to fill, conferences in need of panelists whose airplane tickets and hotel rooms must be paid for.  There are scholars writing scholarish stuff, and that doesn’t come cheap.  But what happened to law schools teaching, you know, law?

Marketing a legal education as a short path to “social justice,” two words that remain as mysterious to me now as before, may be the way to keep the law relevant to those who might otherwise have no clue what to do with their gender studies degree, but once they’ve signed the back of the matchbook and committed to taking out $200,000 in loans, you pretty much have them hooked. And once they’re hooked, you’ve covered your nut.

Then, teach them the merits of all perspectives.  Hard as this is for me to say, a society without prosecutors is going to be very damned unpleasant.  There is no side that owns “social justice,” but only a legal system where all advocates do their respective jobs with competence and integrity.  It’s not a strong selling point, perhaps, but it’s what law schools exist to do. If you can’t produce students who grasp the virtue of prosecutors as well as defense lawyers, under some misguided notion of social justice, then we’re doomed.


26 comments on “In Place Of Torts, Social Justice

  1. Richard G. Kopf


    When I practiced law, I tried to follow this rule of thumb: If you can’t afford justice, you don’t deserve it. I do admit, however, that I never had a course in critical race theory, social justice, or string theory.

    All the best.


  2. Keith

    Through student opposition, they “extinguished plans for a proposed prosecution clinic,” and this was an “admirable” success in furtherance of the cause of social justice.

    Well, it’s not exactly like a focus on feelz instead of selection bias ever hurt anyone, right? Oh, wait..,

    a society without prosecutors is going to be very damned unpleasant

    Which would be only slightly better than the hellscape that is a society where all prosecutors lack empathy due to selection bias.

    Want to improve the world, kids? See all of it first.

  3. EH

    If we’re going to do anything it should be to have students work both sides, particularly in some of those obvious issues like crimes against victims; small landlord/tenant; and so on.

    If you want to set folks out frothing at the mouth to request a 6-month unpaid rent extension for their client due to a broken bathroom screen, you should also represent an elderly landlord who is living in the upstairs apartment and who relies on that rent for food and heat. If you defend people for theft you should also have at least some chances working with theft victims. And so on.

    I mostly interned in prosecutor’s offices but also made sure to do criminal defense clinics. They were each so polarized in perspective it would have been worthless to do only one.

  4. Gregg

    “Through student opposition, they ‘extinguished plans for a proposed prosecution clinic,’ and this was an ‘admirable’ success in furtherance of the cause of social justice.”

    The people trying to start the clinic should have just called it the Clinic for the Pursuit of Justice for Survivors™ of Unwanted Groping and Other Sexual Advances. Then students like the one you talked to would have celebrated it.

  5. Matt

    Excellent post, as always. As I think about it, I can’t define “social justice” either. In the law clinic I participated in, it was basically “poor people are poor because the system. Change the system.” Very left wing stuff.

    I consider myself semi-fortunate. I did clinical not for “social justice” (despite the strong drift toward it) but to learn practical skill. File management, managing client expectations in real life, managing difficult clients, applying law I had learned, advocacy in hearings/trials, etc. These were valuable experiences.
    We also had an experienced prosecutor on staff who taught us how he would approach every file as a prosecutor. A good defense lawyer, correct me if I am wrong, had best understand how the prosecution is going to approach the evidence too.

    One student put it well in seminar, which mirrors your last point: “We are training to be lawyers, not activists or social workers. What we should be doing is representing and advocating for as many people as we can on those legal issues we are competent to help them with. And that’s it.”

    Unfortunately, the seminar was full of readings from profs like Lucie White and taking stupid implicit bias tests (if it seems stupid, remember it’s from Harvard. They are smart!) It was instructed by a prof who had a reputation as a very competent lawyer and was by any measure a very nice person. We didn’t learn any law in that seminar and it was one of the truest wastes of time in law school.

    Social justice courses are the sort an employer will be looking at and questioning on a transcript. I imagine that having “Race, Gender and the Law” on the transcript operates like a red flag for most legal employers today, as it should.

  6. Jordan

    “Then, teach them the merits of all perspectives.”

    The problem is your modern student doesn’t want perspective. They want to be told that they’re right, and have someone in perceived authority affirm their beliefs. Everyone is a special snowflake, and if they’re not, it’s the fault of “the oppressors.” To many, law school is about self validation, not acquiring professional skills and knowledge to do a job.

    What’s more is that they don’t understand, nor are they being taught, exactly what lawyers do – represent clients.

    1. SHG Post author

      But Jordan, some clients are hated. It wouldn’t be social justice to represent them. Didn’t you learn anything in law school?

      1. Jordan

        “Do you think you could represent someone who was guilty? Like, what if they did something really bad like raped someone? Could you live with yourself and represent them?”

  7. Pingback: Lawyering Is About Service, Not Self-Actualization | Popehat

  8. EH

    Nobody likes to define SJ openly. Heck, even the Center for Economic and Social Justice defines it like this:
    Defining Social Justice
    Social justice encompasses economic justice. Social justice is the virtue which guides us in creating those organized human interactions we call institutions. In turn, social institutions, when justly organized, provide us with access to what is good for the person, both individually and in our associations with others. Social justice also imposes on each of us a personal responsibility to work with others to design and continually perfect our institutions as tools for personal and social development.

    If you wanted to be honest about it, though, SJ is actually defined as “a system of outcome-focused justice which obtains equality of outcomes irrespective of gender, sexuality, religion, political affiliations, age, race, belief, disability, location, social class, socioeconomic circumstances, or other characteristic of background or group membership.”

    That approach vitiates a neutral process. (If you start with inequality and the process is neutral, the outputs will be unequal.) In order to obtain neutral outcomes from a start point of inequality, you need to use a heavily biased process.

    Problem is, that means that you have to appoint folks who act like “handicappers.” It is no longer “you’ll be treated like everyone else” or even “you’re in ___ class so you get this benefit.” Rather it’s an approach which requires someone to determine what you SHOULD HAVE gotten, and then give you a variable handicap to reach the “correct” outcome.

    SJ stands in stark opposition to the concept that you can–or should–ever reach neutrality. It’s antithetical to a lot of US law and to how we run a lot of systems.

    Also, from an economic perspective it will predictably result in a fight to control the handicappers (cheaper than changing the inputs.) If you have a choice between “train a population to score better on a test” or “force the testers to ” it’s a lot easier to do #2. And that process is, in fact, happening. That is why SJ advocates so rarely talk about that up front.

    1. SHG Post author

      First, do not call it SJ. It makes me sad when you do.

      Second, this:

      SJ is actually defined as “a system of outcome-focused justice which obtains equality of outcomes irrespective of gender, sexuality, religion, political affiliations, age, race, belief, disability, location, social class, socioeconomic circumstances, or other characteristic of background or group membership.”

      is gibberish. And no, this is not an invitation for you to write another comment. Don’t do it.

      1. EH

        Sorry. All Social Justice comments at SJ will be spelled out from now on.

        Though in my defense, the gibberish was not my writing, I just forgot the quotes when sticking “outcome focused” in.

  9. Jordan

    Tangentially related…

    What I find sad is how divisive “social justice” is. We live in a world of “oppressors”, “cultural appropriation”, and “microaggressions”. As Scott puts it, a world of self proclaimed “special victims.” Rather than make an effort to include everyone – all races, skin colors, religions, political viewpoints, the SJWs are trying to create a world of recognizing special victimhood.

    Whatever happened to everyone just being equal?

    The message is no longer one of unity and inclusion. It’s one of divisiveness and exclusivity, ironically and disingenuously touted as inclusion.

        1. John Barleycorn

          Good thing he ain’t no Cohen or he might start getting all priestly on us.

          Jordan gets a cookie.

  10. Corporate Tool

    This just illustrates the widening disconnect between the dysfunctional world of law school faculties and the actual practice of law. Everybody gets a lawyer – or should — and unpopular causes or clients can be the most intriguing and professionally rewarding. Or grueling. But that’s beside the point. Personal bias shouldn’t drive a lawyer’s thinking if it’s not in the client’s interest. Promoting the pursuit of political fashion over professionalism is simply irresponsible narcissism.

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