Sameer M. Ashar, Fieldwork and the Political, in Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy, (Susan Bryant, Elliott Milstein, and Ann Shalleck,eds., 2014).
The choice of fieldwork is central to the clinical enterprise and intensely political. As Chantal Mouffe argues, “political questions are not mere technical issues to be solved by experts. Properly political questions always involve decisions which require us to make a choice between conflicting alternatives.” The clinician makes decisions about how to distribute scarce resources to people with limited access to those resources. Describing one’s intake criteria as “apolitical,” providing “direct service,” exclusively focused on “small cases,” or triaged strictly by income or wealth are political choices that generate opportunity costs. Though all of these criteria reflect political choices made by clinicians, they are often described in such a way as to elide larger social conflicts, above and beyond the specific contexts of the individual case. This type of description can protect clinics from hostile institutional forces and attract students with a broad range of ideological commitments. However, it also obscures the core social conflicts underlying the life conditions of disadvantaged clients. The challenge then lies in figuring out how to keep “the political”- alternative conceptions of society as articulated by those excluded from the established social structure - at the surface in clinical legal education. In this essay, I briefly describe two types of fieldwork that explicitly facilitate the engagement of clinical faculty, students, and law schools with the political: (1) lawyering in collaboration with social movements; and (2) lawyering on behalf of prisoners and detainees in the United States. The practice areas that I discuss in this essay suggest that there is a modest degree of autonomy in clinical fieldwork selection. This autonomy - which we may underestimate or diminish - facilitates the engagement of clinical faculty, law students, and law schools with the political.