(The following is the Presidential Address of Elliott S. Milstein before the House of Representatives at the 2000 Annual Meeting in January.)

I want to thank my predecessor, Greg Williams, for the truly excellent work he did as President and to complain as well about what a tough act he is to follow. He and I have become very close friends during our time together on the Executive Committee. I have learned a great deal from him, and he laughs at my jokes. Greg?s life story, familiar to so many of us who read his powerful autobiography, Life on the Color Line, the story of a boy whose childhood defined deprivation and trauma, poverty and rascism, and whose adolescence required struggle and courage beyond measure, is a story that enobles all of us. I say this because it is through the work we have the privilege to do, to teach and to open the doorway to the legal profession, to social mobility, that Greg became a lawyer, a distinguished law professor, the dean of The Ohio State Law School and the president of the Association of American Law Schools. And because of his leadership and his example, the AALS has a new project, a Diversity Task Force, strengthening our enduring commitment to our mission of ensuring that all of the groups within our society are represented in the bar, and searching for new ways of protecting that mission from the assaults that are being leveled against it.

I am, of course, ecstatic to be before you as the millennial, centennial president, and very happy that the AALS is kicking off its second century with a clinical teacher at the helm. Indeed, because in many ways the AALS was founded to promote the idea that lawyers should be prepared in law schools rather than through apprenticeships, it is ironic that 100 years later we would have sufficiently legitimized experiential learning that someone whose career has been in that field could be where I am.

In 1968, I was a 2nd year student at University of Connecticut law school and was the chair of the student legal aid organization. It was, of course, the year that Martin Luther King was assassinated and there were riots in Hartford and across the country and many people were arrested. In the midst of it all, Joe Harbaugh, then the chief public defender of the state and ever since my mentor, my teacher, my friend, gave a speech to the students and alumni of our organization- including judges and practicing lawyers-in which he passionately and persuasively claimed that it was our individual and collective duty to ensure that the criminal justice system operated fairly through this crisis. Mass arrests, he said, must not be followed by mass injustice. He challenged all of us to volunteer our time and effort to represent those arrested. And so it came to pass that we organized the Volunteer Defenders with law students doing intake interviews and young lawyers from the insurance companies and larger law firms providing representation over the course of the next summer. And it was for many of us the first realization that what we had learned in law school was of little help in the reality of the trial court. We were taught to analyze law; the cases were all about facts. We were taught the elements of common law crimes; the cases all involved statutory offenses. We had learned about the Supreme Courts? holdings on criminal procedure, but none of the judges before whom these clients appeared seemed to care. We had learned to expect trials and appeals, but there were none, only administrative delay, plea bargaining and rough justice.

One of the university?s responses to our clamor to be involved with the real world was to rent a warehouse in a poor neighborhood and to assign pieces of it to different departments. Our student organization was assigned an office with a desk, a phone, some chairs and the like. Go, do some good, was the implicit charge to us. Evidence of social and legal injustice was palpable on the ride to and from the warehouse office, but what were we to do? Who should we serve and how could we serve them? What did we need to know about our prospective clients and how were we to find it out? How would we get them to trust us and were we worthy of their trust? What did we need to know about how the legal system actually operated and how were we to find that out? What abilities, what skills, did we need to possess and how were we to develop them? How should we be organized to provide service and what equipment did we need? Why weren?t we prepared to handle this? This nearly empty office, which needed to be filled with so much, is for me the founding metaphor for clinical legal education. I have spent my professional career working with wonderful colleagues from schools across the entire spectrum of legal education--comparing my experiences with theirs, learning from their insights and teaching about my own, testing, experimenting, revising--to furnish that room.

And this collaboration, this national effort to create a new academic field, would not have been possible without the AALS. Through the framework of the AALS?s annual Clinical Teachers Conference and Workshop, through the Clinical Section?s Annual Meeting Program and its Newsletter, and now through the peer-reviewed Clinical Law Review, which the AALS co-sponsors, the important intellectual and political work that has enabled our field to flourish has occurred. Indeed, the intellectual history of clinical legal education can best be understood by examining the agendas of the annual conferences.

Starting with the premise that having law students work with real clients on real legal problems was a good thing, we needed to identify what students needed to be taught in order to provide that service. And had our inquiry stopped there, had we conceived of our mission as training studentsto provide competent representation to the clients served by the clinic, I doubt that clinical education could have been sustained. Nearly every clinic was started with grant funds, initially from Council on Legal Education for Professional Responsibility, the Ford funded foundation whose specific agenda was to jump-start clinical education in America, and later from LEAA and the Department of Education. Almost all of those early clinical teachers were outsiders, primarily legal services and public defender alumni, without much socialization into the mores, values and practices of the academy. Many were viewed warily within their law schools and most worked alone or with one or two others, not integrated into faculty culture. Some were not able to stay for more than a year or two. It was obvious to this corp of committed clinicians that there needed to be a national organization to enable us to learn from and to teach to each other, a need that became essential with the demise of CLEPR in the late 70?s. After much debate about whether that organization should be separate from or part of the AALS, we decided to cast our lot within the learned society of legal education. The AALS, in turn, agreed that the fact that clinical education was experimental justified a commitment to an annual clinical teachers? conference or workshop, a commitment that has endured since 1977.

The intellectual agenda of the clinical movement has, of course, been much more ambitious than training students to work in the clinic. This is particularly true in those schools that have made their clinicians full and equal participants in their communities. These professors have utilized the opportunity presented by students working as lawyers who for the first time have to take responsibility for another, to ask basic questions that are reflected both in clinical teaching and in clinical scholarship--questions about lawyering, about the lawyer-client relationship, about the relationship of values to skills, about the legal process, about fairness, about rascism, sexism, and homophobia, about the impact of economic status on the operation of the law. Clinicians have also developed sophisticated pedagogical methods that have informed and improved all law teaching. Indeed, clinics have become laboratories in which theory is derived from experience and then tested and refined in the crucible of the real world. The influence and support of the AALS, an institution devoted to scholarly exchange, professional development, and sound pedagogy, and built around the core academic value that the role of the law professoriate is to create, disseminate and transmit knowledge, have been essential in producing this result.

In telling this as a happy story, I don?t mean to diminish the history of hostility with which many legal educators greeted clinical education nor of the AALS?s, sometimes ambivalent relationship to clinical legal education. But questions about entrance into the legal profession, of what would be taught and how, and by whom and to whom, have been contested throughout American history. Indeed, in a recent survey, 43% of respondents identified the modern law school as the greatest invention of the past century. Velcro and the Ziploc bag placed higher in the survey. But my point is that it is only a relatively recent development that a law school education is a nearly universal prerequisite to admission to the bar. It took considerable effort first to get the ABA to adopt this principle and ultimately to convince most of the states that only education in an accredited law school would do.

At the turn of the century, the law schools were divided among those that used the Langdell case method, those that used the text method and those that depended upon lectures. There was disagreement about how much the curriculum should be broadened at the expense of teaching the technical subjects of the law. Law schools also differed in the amount of pre-law education required (not all required a high school diploma and only Harvard expected college), the length of the course of study with a range from 2 semesters to 3 years, with most requiring 2 years. In 1897 the ABA for the first time recommended that states require 3 years of law school and that no one be admitted to law school who hadn?t the equivalent of a high school degree, but their recommendation bound no one since there was no accreditation system.

In 1900, 34 law schools, fewer than half of those then operating, sent representatives to an organizational meeting called by the then seven-year old ABA Section on Legal Education to "bring the reputable law schools of the country into closer relations with each other and with the Section." 1 This group formed the Association of American Law Schools with its object of improving legal education in America. 2 They agreed to membership requirements that included schools requiring the high school diploma, a two year course of study, increasing to three years by 1905, and a library that had at least the reports of the local state court and the United States Supreme Court. 3 At least among these schools, a consensus was achieved on the general shape of the modern law school, as well as the regulatory scheme that would be used to bring it about. (I would also like to tell you that among their first actions was the creation of a rating system for news magazines and that USNews came in last, but that would be slightly apocryphal.)

But this elite form of legal education, which quickly included full-time faculty, with a faculty-student ratio of no fewer than 1 per 100 students,4 scholarly work, and full-time students, was hugely expensive compared to the apprenticeship system or to shorter courses of study or part-time education. Its opponents used what was called the "John Marshall and Abraham Lincoln Argument." 5 Had there been a requirement of an expensive university education in place at the time, goes the argument, then neither Lincoln nor Marshall, two of our greatest lawyers and statesmen, could have become lawyers. The same, of course, was true regarding immigrants, women, and African-Americans. At the same time the AALS was being created by the most elite institutions, new law schools were coming into being to serve those groups. And, the reality is that even today we worry about the extent to which advances in the academic quality of legal education prefigure who is excluded from entrance into the profession. Our discussions regarding cost, law school admission requirements, and the bar exam all require careful attention to how notions of higher quality interact with visions of inclusiveness within the profession.

At the same time, the Lincoln-Marshall argument did not anticipate the variety of structures that have been created to permit higher education in general and legal education specifically to function as important instruments of social mobility. Starting with the post-war GI Bill and now including the Direct Student Loan Program and our own internal scholarship funds, financial aid of various kinds has permitted us to continue to greet first-generation college graduates who cross our stages at commencement. Fortuitously, the availability of these funds has permitted us to increase our own budgets beyond anything that could have been imagined even as recently as a quarter century ago.

Although we all know that there are always more good ideas making claims on resources than there are resources, no other country comes close to us in the richness of the endeavor in which we are engaged. At the time that clinical education came knocking on the law schools? doors, legal education was a remarkably frugal enterprise. The Langdell method monopolized the curriculum and had shaken off all previous reform efforts. Case books, large classrooms and chalk, required courses, small faculties, along with a few sets of the National Reporter System, were the major expense items in the law school budget. Now the curriculum at most of our schools includes a plethora of electives, seminars, externships, simulation courses and clinics, often involving locally produced readings and supplements. We have extensive libraries, enormous physical plants, complex technology, large student-service staffs, and we support ambitious faculty research agendas. Our rich intellectual communities are producing better educated lawyers than ever before and other countries increasingly look to us for models for reforming their own systems of legal education.

We are justly proud of what the last century?s hard-work has achieved in our nation?s law schools and particularly so regarding the role this association has played in this progress. It has fostered openness and inclusion, and our annual meeting and professional development programs have been the launching pad for many an innovation. Our institutions have expanded to embrace new ideas, and our pedagogy and our scholarship are increasingly diverse and interesting. Perhaps most importantly, in a process facilitated, encouraged and rewarded by the AALS, we have recruited women, minorities and recent immigrants to both our student bodies and our faculties, and we are fighting back against those forces in our society that want us to roll back that progress.

However, at the same time that we can brag about our successes, we should not ignore the continuing and multiplying problem that prevents our legal system from delivering equal justice. Even though we do a better job than ever at educating our students about justice, civil rights, human rights and the relationship between rascism, sexism, homophobia, and injustice, even though our teaching blends theory and practice, and even though we are more attentive than ever to how we transmit values, we have failed to ensure that victims and potential victims of injustice and arbitrary action have access to legal advice or representation.

We once thought the federally-funded Legal Services Program would gradually expand to provide universal access to legal services for the poor. Huge cutbacks in funding coupled with crippling restrictions on the types of cases and clients that can be handled make that an impossible dream. Even now, with legal service programs supplemented in many areas by state and foundation supported programs and many lawyers and law firms willing to take on pro bono work, there are tremendous numbers of people who are unable to afford representation, some of them very poor and some of them middle class. Even those who get service, most visibly and shockingly in criminal and death penalty cases, do not always get competent legal advice or representation.

I now propose that we, the law professoriate, get involved in helping to solve these problems. I do not know the extent to which the high cost of legal education contributes to the high cost of legal services and therefore to its scarcity in these circles. But this is not entirely a problem of resources spread too thin. Sometimes the greatest injustices occur because courts, administrative agencies and legislatures cynically make it difficult, if not impossible, for poor people to get representation. We all know stories, outrageous stories, about courts affirming death sentences imposed on people whose lawyers were certifiably drunk or who slept during trial. 6 My own experience supervising students in an asylum case from Somalia illustrates the point. An asylum seeker who flees oppression and arrives at Dulles Airport without resources or US relatives is likely to be incarcerated until an immigration judge finds him or her eligible for asylum. Where are they incarcerated? In Virginia Beach, 200 miles from the court and a 4 ? hour drive each way for a lawyer volunteering to provide representation. Even if denial of effective representation is the reason to jail so far away, it is nearly impossible for the prospective asylee to get counsel or, when someone volunteers to help, it is difficult for the lawyer to be effective. Is there something those of us in the academy can do to push back, to make sure that our legal system operates on behalf of all?

I do know that now only a little work is going on in classrooms and among scholars to devise solutions. I believe that engaging with issues such as these, working to promote justice, to ensure that our legal system operates fairly, is a remarkably fulfilling and rewarding enterprise. Accordingly, I am announcing the major initiative of my term as President of the AALS, entitled "Pursuing Equal Justice: Law Schools and the Provision of Legal Services." I hope this initiative will stimulate the production of scholarship, promote the creation of curricular materials, and encourage the formation of actual experimental models, all directed to renewing this society?s ideal of providing equal justice to all.

A seven person steering committee chaired by project rapporteur Dean Hill Rivkin of the University of Tennessee is already at work designing a series of one-day conferences to be held at up to 18 different regional sites over the course of the next academic year. These colloquia will engage faculty and students to work together with the legal services and defender communities to bring insights to solving this problem. Each will be organized to disseminate information about successful or experimental scholarly work, curricula or teaching materials, and service delivery models and to engage people in brainstorming about what can be done.

Our ambition is to create a permanent cadre of faculty interested in working on legal services delivery systems or discovering ways to support the work of lawyers who are providing direct service. The unique abilities of scholars can be harnessed to evaluate existing models or to experiment with new ones. In what ways have we in legal education contributed to the failure of the society to ensure that all people are accorded fundamentally fair treatment in the legal system? Have we been sufficiently critical of manifestly unjust decisions or practices? What messages are we giving to our students about these issues? In addition, our abilities as teachers may enable us to play new roles in training and teaching lawyers who are working with underserved populations. Perhaps our classroom discussions will inspire our students to experiment with new ways of doing community based lawyering or to find other ways to make a living while doing the exciting work of fighting for fairness.

I am not here proposing an agenda for out clinical programs. Instead I am saying to all interested faculty that engagement with this work will be meaningful, important and rewarding. I am happy to report that the Open Society Institute was impressed with the contributions we expect to make, that it has awarded the AALS a generous grant to enable this project to go forward. I hope this initiative will serve as a catalyst for fresh thinkning and action on a set of major problems that plague our legal system and democracy. This is a worthy project for the AALS to begin its second century.

To conclude, let me say that I am humbled to follow in the footsteps of so many of my personal heroes who served the Association so effectively as President, most recently Greg Williams, Deborah Rhode, John Sexton, Wallace Loh, Judith Wegner, Rennard Strickland, Curt Berger, and those who came before them. Also, I am extremely pleased to continue my association with my close friend, Carl Monk, our excellent director, himself a warrior for justice. We are lucky to have him. Like so many of you, I have spent my entire professional life benefitting from the AALS. It is more than an honor to have been elected its leader.

1. Resolution of the Section on Legal Education quoted in Harno, Legal Education in the United States, Bancroft Whitney (1958) p.88. (Back to article)
   
2. Id at 89. (Back to article)
   
3. Article Six of the Articles of Association quoted in Harno, id at 89. (Back to article)
   
4. "In 1924 the AALS established a requirement of one full-time faculty member for each one hundred students." Stevens, "The American Law School," in Fleming and Bailyn (eds) Law in American History, Little Brown (1971) p. 494. It was raised to 1:75 in 1952. Id at 507. (Back to article)
   
5. Id at 78 (Back to article)
   
6. e.g., Bright, NEITHER EQUAL NOR JUST: THE RATIONING AND DENIAL OF LEGAL SERVICES TO THE POOR WHEN LIFE AND LIBERTY ARE AT STAKE , 1997 Ann. Surv. Am. L. 783 (NYU 1997) fn. 7-9. (Back to article)