In the Chronicle article, I raised questions about whether human rights programs and law school human rights clinics advance legitimate university goals. I found two substantive responses on the Web.
1. Marco Simons argues (“On the off-chance that anyone does think this is a critique worth listening to“) that my view “is rooted in his belief that human rights law, indeed international law in general, is incoherent and useless. Thus he believes that any effort to give students experience in the practice of human rights law is simply political advocacy, because human rights law can be used for any political purpose.”
I don’t believe (and have never said) that international law is incoherent and useless. I do think that human rights law is pretty incoherent, but I allowed that a clinic experience could be valuable to students if it teaches them (distinctively) legal skills and generates benefits for a client (or is likely to). So the way to respond to my argument is to show that specific human rights projects satisfy these two criteria. Simons does not offer any examples (though he makes several unintentionally damning comments about other types of clinics in an effort to show that human rights clinics are no worse than they are).
2. Sital Kalantry provides a more substantive response. She makes many points; I will leave readers to evaluate them for themselves. I will only address a couple. Among other things, she argues that
Some projects of IHR clinics do not involve representation of an individual client in a court case. Instead, they are aimed at achieving change for large groups of people through means other than courts. Those tactics require the use of legal skills beyond the traditional set. In the real world, public-interest and human-rights lawyers achieve social change by mobilizing peoples and communities using media or technology. Filing shadow reports with international treaty bodies, holding thematic hearings at the Inter-American Commission on Human Rights, or drafting reports using the moral persuasion that human-rights principles offer can raise the awareness necessary for legal change to occur.
I am skeptical that any of these activities (particularly the last) do make any difference, but my more specific concern is that once clinics start training legal skills “beyond the traditional set,” anything goes. I also suspect that once a clinic (human rights or any other type) decides that it does not need clients, but can represent any group with which it sympathizes, the link to law becomes attenuated, and the temptation to use law school resources for political ends becomes irresistible.
She also says:
He wonders whether a resolution by the Chicago City Council—that domestic violence is a human-rights violation—would reduce domestic violence. The purpose of the resolution on domestic violence is (among other things) to bring the United States closer to its international obligations, including strengthening the enforcement of a recent Inter-American Commission on Human Rights decision that found the United States to be in violation of its obligations to protect domestic-violence victims and their families. But this is precisely why Posner thinks this project is pointless—because it attempts to draw the United States closer to its international law obligations.
I think this project is pointless because it is hard to believe that a City Council resolution without any legal force would have any effect on the level of domestic violence. I don’t see how the resolution brings the United States closer to its international obligations, which do not require all the cities in the United States to pass resolutions saying that they will change their behavior, but in fact requires them to change their behavior. (Exactly what binding treaty obligation requires the United States to reduce the level of domestic violence escapes me, but never mind.)
In a similar vein, she argues:
IHR clinics also “do good” by investigating and exposing human-rights abuses that would otherwise go unnoticed (like the report by the Stanford and NYU clinics describing the impact of drone strikes in Pakistan) and by pressuring governments to change their abusive policies by filing reports with numerous international and regional human-rights mechanisms.
I would accept this argument if the clinics also provided evidence that by exposing human-rights abuses and pressuring governments to change behavior, they regularly caused the governments to change their behavior–and in a way that is required by their treaty obligations rather than someone’s idea about what good policy requires.
Kalantry’s view, which is common among human rights advocates, is effectively that all policy arguments are legal arguments, and any kind of advocacy is legal advocacy. It then follows that when law students make any type of argument that a government somewhere should stop doing something that hurts people or do more to help people, they are engaging in human-rights legal practice for which they deserve academic credit.