The Problem with Public Interest Law - National Lawyers Guild ...

by Matthew Bruenig

Upon arrival at law school, students are presented a number of career tracks and interests. Most, at Boston University at least, aim for so-called big-law positions where they hope to sell their legal talents to the highest, and therefore richest, bidder. Those not interested in big-law, and those who become discouraged, may eventually settle into family law, real estate law, or some other private practice tracks.? Those not doing any of the above wind up lumped into an amorphous, ill-defined category known as public interest law.

On its face, public interest law seems like a clear concept: a public interest lawyer is one who practices law in the interest of the people.? To make this definition meaningful however, one has to actually put forward a conception of what the interests of the people are.? Law schools seem unwilling to take that necessary step. Instead, public interest law is treated almost as a negative category that consists of whatever is left over when we remove out big-law and

other specific kinds of private practice.

Although such a treatment might make some sense as a career advising category, it is ultimately incoherent.? For instance, under this approach to public interest law, aspiring public defenders and aspiring prosecutors are lumped into the same category and community.? Somehow, a person looking to spend their career funneling mainly poor people and people of color into the Prison Industrial Complex have the same legal interests as those who want to resist that system. Needless to say, that makes very little sense.

Defining public interest law in this incoherent way also harms the construction of meaningful public interest communities in law school. Law schools are overwhelmingly hostile places for anything but greedy careerists. Those aiming to resist oppression instead of cashing in on it are significantly outnumbered.? In such a climate, students oriented towards social justice will feel alienated. That alienation might motivate them to drop out, cause them to perform poorly, push them to abandon their social justice interests, or just make them have a really bad time.

To prevent this alienation, alternative law school communities are necessary, and public interest communities should serve that end.? As presently constructed, however, they do not. Within the public interest community at Boston University, I have met aspiring prosecutors, at least three aspiring education lawyers who want to destroy teacher unions and privatize public education, aspiring national security lawyers who defend targeted killings, and many other unsavory characters.? When the public interest community is defined so as to include these kinds of people, the alienation the community is supposed to cure only gets worse.

Why law schools choose to define public interest law in this way, I do not know.? I suspect they are motivated, in part, by a desire to remain politically neutral.? To cut union-busting education law students out of such a community would require a political judgment about the importance of unions for the public interest.? To cut national security law students who defend targeted killings out of such a community would require a political judgment condemning a practice that the President himself supports.

Although this aim at political neutrality is somewhat understandable, it is ultimately untenable.? You simply cannot have a public interest law category or community without a defined understanding of the public interest, and such an understanding is unavoidably political. Efforts at constructing public interest law in non-political ways simply do not work.? We can spend hours and hours carving up legal job categories in politically neutral language, but any politically neutral definition we come up with will either include those who should not be included or exclude those who should not be excluded.

In the place of such political neutrality then, law schools aiming to create public interest communities should specifically articulate a definition of what they take the public interest to be. They should be clear that racism, sexism, classism, ableism, and all other sorts of oppression are not in the public interest even if a student seeks to perpetuate them in government or non-profit jobs. They should be clear that the public interest means support for labor over capital and economic justice. And above all, they should be clear that public interest law holds human rights over property rights.

Ultimately, law school public interest communities should strive to promote social justice. Defining public interest law so broadly and neutrally that it includes legal jobs that are counter to social justice does no one any good.? Such a definition and construction does not serve the public interest and it intensifies the alienation of social justice oriented students in law school.? If we want students to utilize legal education for the interest of the public, we must actually define and aim towards that interest. Anything short of that will not do.

Matthew Bruenig will start, in September, his second year at Boston University School of Law.

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