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Rutgers Law School/Newark has been a pioneer in clinical legal education. Professor Alfred Blumrosen together with Richard Chused and myself established the first Rutgers clinical program, the Administrative Process Project, in 1968, in conjunction with the Federal Equal Employment Opportunity Commission and the New Jersey Division on Civil Rights. In the fall of 1970, the law school established the Constitutional Litigation Clinic and the Urban Legal Clinic. In later years came the Women's Rights Litigation Clinic, the Environmental law Clinic, the Animal Rights Clinic, the Tax Law Clinic, the Special Education Clinic, the Community Law Project, and the Women and AIDs Clinic, all of which continue in operation. A labor law clinic, prisoners' rights clinic and mental health law clinic have come and gone.

Today, of course, clinical programs are staples at most American law schools. The Association of American law Schools (AALS) has a section on clinical education and clinical law teachers have an independent Clinical Legal Education Association (CLEA). The Clinical Law Review, in its fifth year of publication, now provides endless grist for the academic mill on issues of clinical pedagogy: interviewing and counseling, mediation, fact investigation, effective writing and oral advocacy, psychological motivation, professional responsibility, grading techniques and a host of other issues concerning the training and supervision of clinic students and the logistics of law school clinical programs. Most importantly, for the purpose of this discussion, the standard model of clinical education has become client-centered representation -- either real or simulated -- designed to resolve narrow-gauged disputes within the confines of defined and proscribed legal rules.

In all candor, I must confess that in three decades of clinical law teaching I have paid scant attention to instruction in most of the above topics, and have dealt with issues of effective advocacy mainly in the context of complex impact litigation. On the other hand, I have been fortunate over the years in having clinic colleagues who did have some interest and expertise in one or more of the above issues and would, from time to time, undertake to share their special wisdom with our student associates in simulation exercises. Meanwhile, my students and I have been having a lot of fun thinking about and litigating exciting issues on the cutting edges of federal and state constitutional doctrine.

But as our profession gets more and more awash in "clinical scholarship," I begin to wonder whether I may have been shortchanging my students all these years. As a consequence, I have lately become more introspective in trying to figure out just what I do teach my students, by osmosis if not by design, and whether I have been more interested in serving my private agenda rather than carrying on effective legal training. Without denigrating the importance of pedagogy or the contributions of those who steep themselves in it, my conclusion is that there is much more to clinical legal education than training in the skills of litigation and counseling, and that most of the current clinical scholarship is too narrowly focused. Among the other important contributions of law school clinics to legal education and the legal process are: (1) offering a practical vision of law as an instrument of social justice; (2) providing an opportunity for students (and a road map for lawyers) to have real social impact and create new and better law under a system of self-government: (3) learning to deal with the ambiguity of facts and the uncertainty of the law; and (4) providing individuals with a principled basis for reflective, responsible lawyering.⁽²⁾ But before laying out the results of my self-analysis, let me describe the mission and some of the law reform accomplishments of the Rutgers' clinics.

Rutgers/Newark as a Law Reform Institution

The Rutgers clinics in general, and the Constitutional Litigation Clinic in particular, have been inspired by the teaching and writing of Professor Arthur Kinoy. Some thirty years ago, Professor Kinoy wrote that it was the great challenge of American law schools to make "law and a profession whose life is based upon law's existence relevant to the pressing and fundamental problems of contemporary American society, ... . relevant to the solution of [those] central issues which dominate American life."⁽³⁾ Relying in part on the earlier writing of scholar and jurist Jerome Frank, Kinoy wrote:

The great challenge to the American law school today ... is to apply the insight of Judge Frank to the contemporary world, i.e., to structure within the heart of the law school, law clinics directed and guided by teachers of law which involve large numbers of students in taking on major cases and situations involving the relationship of the processes of law to the fundamental problems of contemporary society. The activity of the clinic ... would provide a fascinating teaching tool for probing into the most fundamental theoretical, substantive and conceptual problems, all within the context of the throbbing excitement of reality. It would provide "the salt and the yeast" without which everything is "flat and tasteless."⁽⁴⁾

Before proceeding, I should note that the recent experience of the Tulane environmental law clinic⁽⁵⁾ counsels some measure of caution to public law school faculties using institutional resources for advocacy purposes. Nevertheless, we have been doing it at Rutgers/Newark for more than a quarter century with only an occasional objection of no great consequence. Nor is the Constitutional Litigation Clinic all that unique at Rutgers. The Women's Rights Litigation Clinic has been in existence almost as long, advocating for gender equality and reproductive choice. Our Environmental Law Clinic is recognized as the state's foremost advocate for environmental protection. One of our younger siblings, the Animal Rights Clinic, has probably stirred up the most hostile reaction, but has managed for eight years to withstand the political wrath of the fur and pharmaceutical communities.

I am not sure if there is something unique about New Jersey, but we do seem to have been fortunate to have had a series of State Governors who acknowledged the academic freedom rights of faculty at the State University. That stance was apparently firmly set by Governor Richard J. Hughes (later to become Chief Justice) during his re-election campaign in the midst of the Vietnam War, when his Republican opponent made a major issue of the anti-American rhetoric of Rutgers economics Professor Eugene Genovese. Hughes steadfastly stood up to calls to punish Genovese. The fact that Hughes was re-elected rather handily seems to have established a now generally accepted principle that higher education in the state must remain free of interference from politics and politicians. The less and less frequent squeals from elected officials sued by one of the law school clinics gets a form response that such matters are within the educational and academic discretion of the faculty member involved.⁽⁶⁾

As a consequence, Rutgers law students have been able, as urged by Professor Kinoy, to participate over the past three decades in "major cases and situations involving the relationship of the processes of law to the fundamental problems of contemporary society." Furthermore, they have helped establish an impressive law-reform record. Here are some of the major precedents established by our clinics' cases:

* The Attorney General of the United states may not conduct so-called "national security" wiretaps against domestic political organizations without judicial authorization.⁽⁷⁾

* Non-profit advocacy organizations and political candidates have the right under the New Jersey Constitution to distribute literature and gather petitions at the state's privately owned shopping malls.⁽⁸⁾

* The United States Postal Service's national security mail cover regulation was unconstitutional and the Federal Bureau of Investigation violated the First Amendment when it conducted a field investigation of a high-school student on the basis of a letter intercepted through such a mail cover.⁽⁹⁾

* The private Princeton University eating clubs could not exclude female undergraduates.⁽¹⁰⁾

* New Jersey recognizes battered-women's syndrome as a defense to a criminal prosecution.⁽¹¹⁾

* Highway police must have cause to stop vehicles; they may not arbitrarily stop cars for documentary inspection.⁽¹²⁾

* A private high rise residential condominium was required under the New Jersey Constitution to allow supporters of candidates for local office to distribute election material in the building in the same manner and to the same extent that the condominium association did in support of an opposing slate.⁽¹³⁾

* The government is not entitled to presumption that all sources supplying information to the FBI in the course of a criminal investigation are confidential sources within the meaning of section of the Freedom of Information Act exempting agency records compiled for law enforcement purposes by law enforcement authorities in the course of a criminal investigation if records release "could reasonably be expected to disclose" the identity of, or information provided by, a confidential source.⁽¹⁴⁾

* Public libraries are a public forum for purpose of accessing information, subject to reasonable time, place and manner regulations.⁽¹⁵⁾

* Homeless individuals must be permitted to register and vote even though they have no mailing address.⁽¹⁶⁾

* Battered woman who had to move because her ex-husband repeatedly violated a permanent restraining order, was entitled to register to vote without making her address a matter of public record, despite statute requiring that registry list, including registrants' addresses, be publicly available.⁽¹⁷⁾

* The State of New Jersey must pay for Medicaid abortions even though Congress is allowed to withhold federal funding.⁽¹⁸⁾

* Municipal ordinances which prohibit door-to-door solicitation by non-profit organizations prior to 9 pm and which require that their canvassers be fingerprinted violate the First Amendment.⁽¹⁹⁾

* State conflict of interest law prohibiting state employees from representing parties before state agencies does not apply to Rutgers faculty representing clients through law school clinics.⁽²⁰⁾

* The City of Newark was required to end racially discriminatory hiring in its police and fire departments.⁽²¹⁾

* Municipalities with few African-American residents were required to make employment opportunities available to African Americans in the regional labor pool.⁽²²⁾

* Private prison guards employed by an agency under state contract are not entitled to invoke a "good faith" defense in a suit for violation of prisoners' civil rights, the United States Supreme Court decided in a 5-4 vote which relied heavily on historical research provided by an amicus brief prepared by the Constitutional Litigation Clinic.⁽²³⁾

* Government agency could not base licensing fee for a parade permit on the scope of the police protection likely to be necessitated by the march, the United States Supreme Court held 5-4, approving the position advocated in an amicus brief prepared by the Constitutional Litigation Clinic.⁽²⁴⁾

Rutgers' students, working through the Constitutional Litigation Clinic, have also made major contribution to the development of New Jersey law requiring equitable school funding⁽²⁵⁾ and disallowing municipal zoning practices which restrict construction of affordable housing,⁽²⁶⁾ although in those instances the major litigating agencies were out-house, and the Constitutional Litigation Clinic served either as co-counsel or in a back-up capacity.

The Constitutional Litigation Clinic Experience

For 58 semesters (less academic leaves), I have been telling our entering crop of students that in the Constitutional Litigation Clinic we don't just look at the law as it is; we look at the law as it never was and ask why not! Our mission is avowedly law reform. As a consequence, our students are a self-selective group who, more often than not, identify themselves with the public interest movement. Which is not to say that we don't get some non-ideological types -- and even an occasional Federalist -- who enroll because they have heard it is the best place to learn litigation (if not "lawyering") skills.⁽²⁷⁾ Our students also tend to be particularly bright and highly motivated. Weak (or lazy) students shy away because they know the work load is heavy and the pressure to produce intense. (Our students receive 6 credits during their first semester of enrollment and are expected to put in an average of 16 hours per week over 16 weeks, or a total of 256 hours for the semester. They are required to submit detailed weekly time sheets.)

The truth is that we operate on much more of a law firm than a law school model. We treat our students as associates. While my colleagues have, in recent years, added some role-playing exercises to our weekly seminars, I generally eschew simulation. I lean much more to the old-fashioned model of tossing the students into the water and letting them swim. (Although I am always close enough to throw a line if necessary.) It may be that my model is not well suited for the run-of-the-mill student, but I think it has been effective for our bright, motivated crew. We do not waste a lot of time teaching what is, to most of these students, obvious and self-evident -- like speaking prose.⁽²⁸⁾

Each of the limited number of cases on our docket is assigned to a team, which consists of one senior partner (faculty) and from two to ten associates (students). Each team has a regular weekly meeting/strategy session. At the beginning of the semester (or when taking on a new case), the faculty member assigns some basic background reading to ground the students in the facts and relevant existing law. Depending on the status of the case, the team then discusses the potential legal issues, does strategic planning and considers the possible legal chores. Tasks are divided up. If we are still in the investigative stages of a potential law suit, students will be assigned to do research memos on each potential issue so that we can discuss the likelihood of success if we decide to undertake litigation. I will describe the Clinic's activities during the 1997-98 academic year, which was fairly typical.

We had been approached by the Reform Party of New Jersey to challenge a state law that required that a party obtain ten per cent of the vote in the last election for members of the State Assembly (the lower house of the Legislature) in order to qualify for ballot status as an official party. Although its presidential candidate had received 19 per cent of the state vote in 1992 and nine per cent in 1996, the Reform Party was ineligible for party recognition under New Jersey law. As a consequence, it was not eligible to participate in state-financed primary elections and its supporters could not register to vote as members of the Reform Party. The party felt particularly damaged by this latter consequence. Unlike the Democratic and Republican parties, they could not obtain from the State official lists of their registrants from whom they could solicit political and financial support. After preliminary review our team felt we had a strong claim of political discrimination.

Our initial assessment was further confirmed when a check of New Jersey political history revealed that the provision was so onerous that no third party had ever been able to qualify in the law's 80-year history. A further examination of the ballot laws of the other 49 states also revealed that the New Jersey provision was unique in setting as the lodestar for determining party status the cumulative results of elections in forty separate legislative districts. Meanwhile, we had enlisted the aid of several political scientists who were sympathetic to third-party politics and who volunteered to serve as pro bono experts. The students began to draft an expert affidavit that could be used in opposition to a motion to dismiss or in support of a motion for summary judgment. So far so good!

However, as our students delved into the applicable federal law relating to ballot access and political party regulation we discovered it was largely hostile to our particular problem. Although case law was sympathetic to minor parties that had been denied total access to the ballot, our analysis of New Jersey nominating procedures revealed that the state had very liberal petitioning requirements for putting candidates on the General Election ballot. And there were a number of federal court cases which had held that so long as candidates had relatively easy access to the general election ballot, even more onerous party-recognition rules than New Jersey's were not unconstitutional.

Our team still felt we had a very strong claim of political discrimination as a result of the unfair position of the Reform Party vis a vis the Democrats and Republicans in regard to party registration. However, when we did a careful analysis of the latest United States Supreme Court pronouncement on the rights of minor parties, it was clear that a majority of the Court believed there was a compelling governmental interest which supported legislation intended to strengthen the two-party system at the expense of the competition rights of third parties. More than half way through the first semester, it was back to the drawing board!

At this point we shifted our focus to the New Jersey State Constitution, which is generally more protective of individual and political rights than its federal counterpart. We were buoyed by the discovery of an Alaska State Supreme Court case striking down, pursuant to the free speech provisions of the Alaska Constitution, a statute nearly identical to New Jersey's. The problem was that the few New Jersey cases dealing with voting and political rights mostly relied on federal precedents, although reading those precedents more expansively than the latest U. S. Supreme Court cases did. Most promising was language in the New Jersey cases that suggested that whenever state laws inhibited the right of participation in the political process, those laws had to survive strict scrutiny, a more stringent standard than the later federal cases. For the next several months the students worked to weave an argument which relied on the Alaska decision, language in the New Jersey cases as to the appropriate constitutional standard, and some analysis from federal cases recognizing, as a matter of fact, the detriment suffered by minor parties denied official party recognition.

By this time, we thought we had a viable legal argument and had a draft complaint ready for filing in state court. However, we were concerned about the standing of the Reform Party, which had engaged in very little electoral activity in New Jersey after the 1996 presidential election. There were almost no states which offered formal recognition to political parties on the basis of presidential votes. On the other hand, the gubernatorial candidate of the state Libertarian Party had received almost 5 per cent of the vote in the 1997 New Jersey election. It seemed that the Libertarians, which had earlier expressed some interest in a similar law suit, might have a better chance of surviving a motion to dismiss on standing grounds. However. in a joint meeting with representatives of the Reform and Libertarian parties we discovered some fundamental conflicts of interest over strategic goals of the litigation which had to be resolved.

By this time, the academic year was at an end. We agreed with our potential "clients" to continue strategy discussion over the summer and to open up the issue to the full membership of the New Jersey Council of Alternative Political Parties, a coalition of small parties which had recently won another challenge to a state election law dealing with the deadline for filing of nominating petitions by independent candidates in the general election.⁽²⁹⁾

I have no doubt that the six students who worked on this case during the year found it to be both stimulating and a great learning experience. (Two of the students continued on the case for two semesters, while two new students joined the team in the spring.) Not only were the students steeped in the intricacies of constitutional analysis (including the distinction between strict and intermediate scrutiny and the differences between least restrictive means and narrow tailoring), they had had an invaluable lesson in the importance of constitutional fact-finding to the application of legal doctrine and the relationship between rights and remedies. They had learned about the role of expert witnesses in constitutional litigation. And they had an invaluable introduction to the intricate interplay between federal and state law and the respective judicial systems. And although they received no specific training in interviewing or client counseling, they had certainly been introduced to the very important ethical responsibilities of lawyers to understand their clients' needs and attempt to serve them.

I doubt that I can prove it, but I am convinced that it was the kind of educational experience that comes only from a hands-on effort to find legal redress for a specific problem confronted by a particular client. I am inclined to believe that there was no classroom experience which could have done more to prepare them to be excellent lawyers and counselors.

The most significant and complex case the clinic is handling at this time is a vast law suit against the Immigration and Naturalization Service (INS), a private correctional facility (Esmor) and their officials and employees on behalf of former asylum-seeking detainees at Esmor who had rioted in the summer of 1996 over their conditions of confinement.⁽³⁰⁾ The legal issues stand at the intersection of domestic civil rights law and the developing law of international human rights, which our goal is to incorporate into domestic law.

The federal Complaint lists 74 separate counts, and our brief in opposition to the government's motion to dismiss exceeds 200 pages. As one of their initial tasks after filing the Complaint, the students had to figure out how to effectuate service on a dozen former guards who were known only by partial names or nicknames (mostly identified as Does in the Complaint), and, when identified, were eager to avoid service.

Our students have been required to communicate with and minister to plaintiffs (most of whom speak limited English) now scattered in detention facilities up and down the East Coast. Each student was assigned at least one plaintiff whose story had to be recorded and who had to be prepared to be deposed. A massive discovery program had to be prepared, taking into account the various claims of immunity we had to anticipate from various classes of defendants.⁽³¹⁾ The case has also spawned several satellite asylum proceedings. For two of our civil plaintiffs we won independent injunctions forbidding their deportation pending new hearings on their asylum applications.

Most significantly, the students had to deal with the most complex of issues concerning the rights of detained aliens under U.S. law and the scope and enforceability in United States courts of norms of international human rights law, which was our main reliance in the Complaint. One of the first chores was to create our own library of international human rights law and the literature dealing with its application in domestic tribunals.

This case will undoubtedly continue for a number of years and provide an unparalleled educational experience for many semesters of our "associates," who are learning (or making) the law of this case along with my clinic partner, who is chief counsel.⁽³²⁾ It seems to me that one of the most exciting aspects of this type of educational experience is that there are no answers in the back of the book. Students in our clinic quickly learn that the law is an instrument they must learn to play. And the teachers are learning along with them; only the teachers have been doing it longer and have, as a result, developed some superior judgments about use of the various litigation tools available as well as the possible twists and turns and ultimate outcomes.

Few of the students working on such a case will ever again in their careers face such a formidable piece of litigation. But it is the belief of my colleagues and me that having been trained in such a crucible, these future lawyers will be up to whatever complications future law practice brings their way.

Our clinic does not limit itself to litigation. We also engage in other kinds of public

interest advocacy. During the year under review, we took on the task of convincing the state judicial system to adopt a public interest counsel fee rule. Over the past decade, public interest advocates in New Jersey (which include many of our former clinic students), have turned more and more to state courts to protect and expand individual rights. While we have been quite successful in expanding rights, we have seen a drying up of court-awarded fees which can be used to support and grow the public interest movement. Indeed, we are whip-sawed. The dilemma of the public interest lawyer is that it gets tougher and tougher to prevail on federal claims in federal courts, where fees are available to the successful litigant, while suit on state claims in state courts offers much more promise of success but no hope of a fee award.

So one of our clinic teams spent a semester drafting a proposed public interest counsel fee rule and memorandum in support for submission to the Civil Practice Committee of the State Supreme Court. The submission also included detailed affidavits in support from representatives of the major public interest law agencies in the state, such as the American Civil Liberties Union and the Education Law Center.

The brief in support was a major undertaking requiring the students to steep themselves in the history of the American Rule and the theory and practice of counsel fee awards in both federal and state courts, including immersion in the legislative history of the federal Civil Rights Attorneys Fees Award Act. It also required a detailed examination of New Jersey law and history concerning the relationship between the judicial and legislative branches and the division of powers between them on matters of substantive and procedural law. In New Jersey this is an especially intricate matter over which there has been much discussion and debate since the adoption of the 1948 Constitution and its early interpretations by Chief Justice Arthur Vanderbilt, who was not only its major drafter, but also the first Chief Justice after its adoption.

This further required our team to undertake a major analysis of the appropriate role of the respective branches in anticipation of an opposition argument that by adopting the proposed rule the judicial branch would be usurping a prerogative of the Legislature.

The team's mission also included development of a public campaign to generate support for the rule among the broader legal community, including organizing a symposium at the annual state bar convention. It was an experience which certainly broadened the participating students' education about the operation of the legal system and may even encourage them, as lawyers, to play an active role in the "politics" of the bar.

The Constitutional Litigation Clinic has pioneered in the application of the New Jersey Constitution to those who control private aggregations of property. We established the principle that New Jersey shopping malls must accommodate expressive activity under reasonable regulations and then extended that principle to private community associations.⁽³³⁾ In 1997-98, we continued the enforcement aspect of our decade-long shopping mall litigation by challenging regulations promulgated by one of those malls, the Mall at Mill Creek in Secaucus.⁽³⁴⁾ Representing New Jersey's Green Party, we challenged as unreasonable regulations requiring that licensees obtain a million dollar insurance liability policy, sign an unlimited indemnification agreement and limit their activities to one day per year.

Because the Supreme Court's opinion recognizing the right did not specify the nature of permissible regulations (despite our request that it do so), we had to develop a theory as to the limits of reasonableness. This case also provided an opportunity for our students to learn something about the most important litigation strategy of all -- forum selection.

As I have taught my students these many years, one of the great advantages to practicing public interest law in New Jersey -- which so often involves equitable actions seeking injunctive relief -- is that there is only one General Equity judge in most counties. It is an invaluable lesson. Unlike filing suit in federal court, where judicial assignment is akin to Russian roulette, a New Jersey lawyer seeking equitable relief and having few venue restrictions can pick the most hospitable forum. That was one of the reasons we chose the Mill Creek mall as our test case over regulations. Mill Creek is situated in Hudson County, where the Chancery Judge is an exceptionally competent, former member of the New Jersey Legislature who is both a very careful adjudicator and understands the practical problems of political communication. We could be absolutely certain to get a fair and sympathetic hearing and a careful trial record and detailed fact-finding leaving little chance of reversal on appeal. The Judge is also extremely cordial to law students, invites them into chambers' conferences and takes the academic calendar into account in fixing work schedules.

True to our expectations we obtained two temporary restraining orders allowing the plaintiffs to engage in leafleting and petitioning while the case proceeded. In the meantime, the students completed a discovery program and put together a motion for summary judgment with an extensive statement of materials facts not in dispute. The summary judgment motion was argued right after the end of the academic year, and was granted as the new year was about to begin. In the succeeding year, a new group of students took on the task of defending the appeal.

During the year, the Clinic also dealt with the following matters:

* A state trial court granted our motion for summary judgment in a suit challenging the constitutionality of an ordinance restricting the use of a municipal park to local residents.⁽³⁵⁾ The court's opinion quoted extensively from our students' research about the development of public parks in the United states, their "special role in the American picture" and the importance of public parks to the "framework of our society."⁽³⁶⁾ The court went so far as to acknowledge the works of Frederick Law Olmsted, who saw public parks as "a place where the rich and the poor ... shall be attracted together and encouraged to assimilate."⁽³⁷⁾ For our students, a court's adoption of such creative arguments, which had sprung from our team's strategy sessions and were fleshed out by their extensive research in the architectural and urban planning literature, was surely worth many, many classroom hours of jurisprudential theory. The court also adopted an argument developed by the clinic team that enforcement of the ordinance would require police to demand that park-users provide identification, which would create serious Fourth Amendment issues. Again, the students who were involved in the development of that argument got an invaluable lesson in creative law-making.

We had challenged a similar ordinance several years before and had it invalidated by the Appellate Division on grounds of vagueness. The new suit challenged a revised ordinance. Revealingly, one of the students who had been a member of the original team went home to Connecticut after graduation and brought a similar suit against the town of Greenwich because it refused to allow him to jog through its beachfront park.⁽³⁸⁾

* We chalked up another victory in an ongoing battle with local school districts in northern New Jersey which try to exclude students not living with natural parents or legal guardians. We have now won a half a dozen of these cases at the administrative level on behalf of relatives/extended family or other good Samaritans who have provided homes for kids from dysfunctional families only to be told they had to pay tuition if the children were to attend local public schools. Over several years now, the Clinic has perfected statutory and state constitutional arguments that these school districts are obligated to provide a public education for such children if they are actually residing in the home of a local family as a consequence of family or economic hardship.

*We instituted an innovative project of representing civil rights complainants in mediation. The New Jersey Division on Civil Rights has begun to refer charges of discrimination to mediation before undertaking a complete administrative investigation, in an effort to resolve matters fairly and quickly. Complainants are at a disadvantage in mediation if they lack legal advice and assistance. The Clinic now represents some of the complainants. The students spent many hours interviewing and counseling the complainants, analyzing the facts and law of their matters, and appearing with the complainants at mediation sessions. The students had to quickly master key elements of discrimination law, including race, sex, and disability, and learn how to use facts and law in the non-adversarial setting of mediation.

* We continued our practice of having an Inquiries Team which reviews requests for help from the public and analyzes the legal problems presented. Occasionally, one of these requests winds up on our formal docket; but most often we merely offer the applicants suggestions for other possible means of redress or advise them that there is no likely legal remedy for their situation. However, before any kind of advice can be offered, the student to whom the inquiry is assigned must contact the grievant and flesh out the facts so that some meaningful legal analysis may be applied. This is another opportunity for students to grapple with the difficult problems

presented by fact situations not previously filtered by an intermediary more knowledgeable than themselves, which is, of course, the situation involved in the usual classroom hypothetical.

Although each of our students is assigned to work on no more than two projects at any given time, they are all kept abreast of the activities of their fellow students. Our weekly seminar sessions, among other things, keep everyone informed about the progress of our cases and other projects and attempt to share relevant experiences. Especially difficult litigation problems tend to become the grist for seminar discussion. In this way, all students share in the common educational experiences.

Reflections

The 1997-98 academic year was a fairly typical one in the 28-year life of the Constitutional Litigation Clinic. Whether or not in any given semester our students receive substantial direct training in so-called "lawyering skills," I am reasonably confident they have been well trained in the theory and practice of constitutional (read civil rights, civil liberties, public interest) litigation. Most importantly I believe, we have helped create a new generation of what Professor Kinoy called "people's lawyers."⁽³⁹⁾ And that may have been the major contribution of programs such as the Constitutional Litigation Clinic to the advancement of the law and legal education. Programs such as ours have helped to train a new generation of lawyers unafraid of looking at the law as it never was and asking why not. And frequently, first as students and then as practitioners, they have helped make the vision the reality.

On a purely academic level, I believe that clinics such as ours are to the training of future practitioners what law review is to the training of future teachers and scholars. Litigation on the edges of constitutional doctrine in a politically charged legal environment requires the most disciplined analysis of difficult theoretical issues. For our Rutgers students, advocacy before state courts to convince them to read state constitutional provisions more liberally than their federal counterparts has presented the most intricate of intellectual challenges. No classroom discussion of such issues can ever compare in intellectual rigor to the crafting of a brief for a skeptical judge being provided contrary legal arguments by a skilled professional from a major law firm or the office of the attorney general.

In addition to the skills we impart and the rigorous legal analysis that is absolutely essential to successful litigation of the kind we engage in, I believe we also teach what one recent commentator called "practical judgment in lawyering."⁽⁴⁰⁾ His observation provides as good a description as I have ever seen as to what we are doing pedagogically:

As clinical teachers, we encourage students to be self-reflective and imaginative; to recognize the dualities, tensions and even contradictions that mark social life; and to account for the importance of human feelings as well as hard facts. We are not in a

position to provide clear answers. There are no formulas for lawyer problem solving under conditions of uncertainty.⁽⁴¹⁾

I am sure we do provide our students the same kinds of "conditions of uncertainty" they are going to confront as lawyers. But at least we give them an opportunity to deal with such conditions in a somewhat more controlled and guided atmosphere, even if we can't provide clear answers. Maybe the very fact that the students are able to realize that even their professors do not have clear answers and have to live with uncertainty much of the time helps instill the kind of self-confidence necessary for them to operate as professionals. Even the fact that we lose some of our cases may be reassuring in that it allows them to take chances with hard causes.⁽⁴²⁾

Many of the students who have gone through the clinic over the past 28 years have gone on to become successful public interest lawyers and made important contributions to the progressive advancement of the law. I like to believe that their clinic experience was instrumental to their accomplishments. For many other students who went on to careers in general practice, I can only hope that the semester or two they spent in the Constitutional Litigation Clinic provided them deeper insights into this mysterious process we call the law, made them more responsive to their clients' needs and helped make them more humane beings. I feel certain that we did them no harm.

Replicating the Constitutional Litigation Clinic Model

I readily confess that I have probably the best job possible for a lawyer who is not overly concerned with amassing great wealth. I generally pick my clients, deal with fascinating issues on the cutting edge of constitutional law, work intimately with a small, self-selected group of bright, socially concerned students, and satisfy my academic conceits by occasionally turning my litigation topics into law review articles⁽⁴³⁾ or a book⁽⁴⁴⁾. Many of my former students insist that their Constitutional Litigation experience was the best and most rewarding part of their law school experience.

It has always amazed me that more law teachers have not attempted to emulate our clinic. Recognizing that in some parts of the country this would not be politically feasible in a public law school⁽⁴⁵⁾, there are certainly many private schools where teachers of constitutional law could establish similar clinics. It takes no more resources than any other clinic: faculty and secretarial salaries and space. While litigation costs are generally much higher than in clinics handling more mundane "legal services" type issues, we resolve that problem by charging such costs to case sponsors. Each of our cases is sponsored by a non-profit agency such as the ACLU, Center for Constitutional Rights, NAACP, League of Women Voters, etc. The clinic becomes the volunteer lawyer for the sponsoring organization just as private law firms often do for such groups. Indeed, it is even possible for such clinics to be partially self-sustaining, since our kinds of cases often include the opportunity for court-awarded attorneys' fees.

It is true that many of our case have exceptionally long life spans -- one ran for almost two decades. Few are concluded within the course of a semester or even an academic year. But even that experience is important to future lawyers. Especially as young law firm associates, many of our graduates will find themselves being assigned specific chores in connection with ongoing litigation. It goes with the territory. They have to learn to get up to speed quickly.

The harder problem is the continuity of faculty supervision in a profession where sabbaticals and other forms of academic leave are endemic. But as long as there are two or three faculty attorneys regularly assigned, even occasional substitution of lead counsel is no more than a minor inconvenience.

Another major benefit of such a big-case clinic to a law school is the opportunity it offers to non-clinic faculty to occasionally return to the courtroom around a special project. We regularly have non-clinic faculty serving as special counsel working with a team of students (either independently or as co-counsel with regular clinic faculty) on a case of special academic interest.

And the university itself, despite some occasional misgivings when we get embroiled on the unpopular side of a public issue of great notoriety, seems to take a good deal of pride in the significant amount of publicity we generate -- especially when we are representing an interest which invokes public sympathy,

You really don't have to be especially proficient in, or enamored with, the nitty gritty of clinical pedagogy to run a successful law school law office (although it doesn't hurt if you are). The main thing is that you love law and litigation, and enjoy imparting your knowledge and enthusi asm to eager students.