Sameer M. Ashar and Wendy A. Bach, Critical Theory and Clinical Stance, 26 Clinical L. Rev. 81 (2019).
Clinicians, unlike their peers in the legal academy, are embedded in their clients’ experiences of the legal system. Because of their location in the academy, “they have the potential to transform the study of law into the study of a culture that deploys law for various purposes,” in the words of Phyllis Goldfarb. In this short essay, we highlight a thread of clinical scholarship which we identify as growing from clinicians’ unique and embedded stance. We seek to convince, using a few examples of clinical scholarship, that our collective critical stance has yielded, over the last several decades, a growing body of work that (1) is grounded in observation of lived reality and awareness of the operation of interlocking systems, (2) incorporates an innate criticality borne of the activism and advocacy of clinicians, and (3) meaningfully and productively generates and deploys theoretical insights in the wider world. Ultimately, we aim to identify a space for critical theory generation, alongside clinical scholarship that focuses on doctrinal interpretation and pedagogy and to forge room for this work in the clinic, alongside legal services provision and lawyer development. When clinicians engage in the kind of scholarship we are describing it is often subject to a few standard criticisms. The work can be seen as not rigorous. It is assumed that our duty of loyalty to clients means that we cannot write credibly and critically about cases in which we are involved. But in our embrace of the embedded nature of clinical stance, we are claiming and celebrating our proximity to clients and communities as a standpoint from which to observe and describe. We continue to think critically about degrees of bias with the understanding that all scholarly work is bent by both bias and detachment. Nevertheless, the theory that we invoke and revise from our standpoint beside clients enables us to make credible demands for social structural change. We should make those demands by all means necessary, including by seeking to alter and reform the discourse that is created by others about the communities with which we work.