Thursday Thinkpiece: Buhler on Moral Anger and Clinical Legal Education

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Troubling Feelings: Moral Anger and Clinical Legal Education

Sarah M. Buhler, Assistant Professor, University of Saskatchewan College of Law
(2014) 37 Dalhousie Law Journal 397

Excerpt: Abstract and Sections III & IV
[Footnotes omitted. They can be found in the original via the link above]

Abstract

Many law students experience strong and sometimes difficult emotions during their time in clinical law programs: sadness at clients’ stories of trauma, excitement about a victory in court, or anger at the injustices faced by clients. In this article, I focus on the emotion of “moral anger,” or “moral outrage” experienced by lawyers and students in clinical contexts, and consider how educators and students might address manifestations of moral anger in clinical law contexts in ways that ignite a critical and social-justice oriented approach to legal practice. By drawing on theoretical insights from the emerging field of critical emotion studies, I argue that a critical analysis of the role of moral anger in clinical legal education reveals its potential as an agent of transformation, but also signals a need for clinical educators to be wary of an uncritical understanding of this strong emotion. Drawing on the work of Michalinos Zembylas, Sara Ahmed, and others, I propose that clinical law students and teachers should seek to engage in critical “readings” of moral anger—interpretations that acknowledge the role of strong emotions in legal practice, and then interrogate the meaning of these feelings in light of community context, power relations, and history. Such an approach, I argue, can literally “move” us into deeper understandings and potentially more meaningful and collaborative social-justice oriented practices.
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III. Emotions, moral outrage, and clinical legal education: the existing literature

Despite the often emotionally charged nature of clinical law experiences, only a small body of clinical law literature concerns itself directly with the role of emotions in clinical legal education (and no Canadian clinical law scholarship focuses specifically upon the role of emotions). For example, Laurel Fletcher and Harvey Weinstein write that clinical law supervisors must acknowledge the highly emotional nature of clinical law work for many students. Students’ emotional reactions, argue Fletcher and Weinstein, directly impact the delivery of legal services in clinical law programs. Emotional intelligence is a key aspect of legal work in clinical contexts, they write, and therefore clinical law supervisors must focus on showing students how to attend to the affective dimensions of the lawyer client relationship. Fletcher and Weinstein’s article is helpful in many respects in teaching students how to work in respectful and holistic ways. This is crucially important in clinical law contexts. However, Fletcher and Weinstein do not explicitly connect the emotional responses to legal practice to larger systemic injustices, nor do they critique dominant assumptions about emotions as personal, private reactions of individuals to situations and conflicts.

Ann Juergens also has written about the role of emotions in clinical legal education settings. She notes that clinical law supervisors should model a healthy and open approach to emotions. Juergens also focuses on the importance and the emotional implications of “community connections” in clinical law work. She urges clinical law supervisers to maintain and nurture connections with community organizations and activists as a crucial part of their work. Juergens writes that keeping community connections strong can remind lawyers to attempt to find resolutions for clients that “take the larger fabric into account” when addressing legal problems. She writes that community engagement can also assist lawyers and students in converting rage at injustice into constructive actions, but she does not describe how this process might unfold. Juergens describes her ultimate goal as being the promotion of the “emotional health” of lawyers and law students involved in clinical programs. Thus, although Juergens touches upon the ways in which moral outrage might play a role in clinical legal education, and focuses on the importance of a broader view of emotions, her article does not provide particular critical direction regarding how moral outrage might be harnessed towards social justice.

Clinical law professor Abbe Smith has written specifically about the role of moral outrage in poverty law practice. Smith describes in detail the role of moral outrage in criminal law defense work for indigent clients. She draws on the idea that outrage can be an indicator of injustice and a motivator for action for poverty lawyers. Smith notes that moral outrage is a motivating emotion that “supplies combustion” for poverty lawyers. She defines this motivating feeling as “a sense of moral outrage, the sort of outrage that accompanies conviction…outrage as principled resistance.” She argues that given the structural and systemic injustices faced by indigent clients, it is impossible to work as a legal advocate in this context without finding occasion for outrage at injustice. The morally outraged lawyers depicted by Smith utilize their outrage as inspiration and fuel for their legal advocacy. Drawing on the injustice after injustice faced by their clients, these lawyers are motivated to keep fighting on behalf of their clients. Interestingly, Smith writes that many of her clients fail to demonstrate outrage about their own situations, but rather often appear to accept injustice as inevitable. Thus, in Smith’s depiction, it is the lawyers who are the primary bearers of moral outrage, they are the agents who engage and confront unjust systems on behalf of their clients.

Thus, the small body of scholarship about the role of emotions in clinical legal education contexts grapples with the highly emotional nature of clinical law practice and the feelings evoked in lawyers and law students as they work on behalf of clients. However, there remains room for a critical consideration of the role of emotions generally, and of the emotion of moral anger in particular, in clinical law contexts and pedagogies.

IV. Critical “readings” of moral anger in clinical legal education

Students at the clinic associated with my law school have worked with clients who have been criminalized based on HIV status, who have been assaulted by police, and who have lived in rental units where landlords have failed to provide heat during cold winter months. Students have experienced highly charged situations in trial and administrative hearing contexts. They have witnessed times when actors within the legal system fail to “hear” the stories of injustice told by their clients and subsequently fail to provide substantive justice to their clients. At times, they catch glimpses through the eyes of their clients of a reality where the rule of law is much more tenuous than they were led to believe in their courses at law school. Many of my students have expressed these feelings of outrage in clinical law seminar discussions or have articulated their feelings in their critical journal reflections about their experiences.

These stories and glimpses into the worlds of clients at the clinic may function as “disorienting moments” for law students who find that their conceptions of justice and the role of law in achieving social justice have been challenged through their clinical experiences. As Fran Quigley has observed:

Most…students come to the course without significant exposure…representing a person trying to wring a just result from an often unresponsive legal system. When the learners are confronted with their clients’ very real suffering and frustration, the learners’ necessarily abstract understanding of social justice often prevents assimilation of the experience. Hence, disorientation occurs[.]

This feeling of outrage or indignation about injustice may for some students, as it does for Abbe Smith, fuel a feeling of responsibility to “fight for justice” on behalf of their clients. The feeling of outrage may spark a sense of courage, motivation, and dedication for students. Certainly, this energizing impact of moral anger is significant in that it may “be regarded as an emotion that forces confrontation…[that] has the potential to disrupt existing power relations.”

However, in this section I argue that if clinical law students and lawyers fail to critically interrogate our emotional responses in these contexts, we may unwittingly assume that our responses of outrage are sufficient “gauges” of injustice and that our feelings legitimate certain responses on the part of legal professionals. Very often, these responses envision lawyers and the legal system at the centre of the solution to clients’ troubles and give law students and lawyers a privileged role in addressing these problems. These responses dwell on the lawyer-client relationship and view the lawyer as the central agent in the quest to address injustice. Such responses can function to stultify broader, politicized, and community-centred approaches to advocacy and legal practice.

What is required is an ability to critically interpret and “read” our emotional responses in clinical legal education contexts and an understanding that our feelings always involve interpretation. As Sara Ahmed writes, the emotion of anger always involves a “reading” of pain or injustice and therefore always requires interpretation. The question, then, for Ahmed, is “[w]hat form of action is possible given that reading?” For law students, pre-established ideas about justice, social relations, and the role of lawyers inform this process of interpretation and also, as described above, may inform ideas about the proper response by lawyers. A critical reading of our feelings of outrage and indignation at injustice thus requires us to interrogate existing assumptions about justice, the role of law, and legal systems in addressing injustice and the role of lawyers in this process. It requires us to seek to “move…from anger into an interpretation of that which one is against, whereby associations or connections are made between the object of the anger and broader patterns or structures.” This process is what Michalinos Zembylas might describe as the “politicization” of emotions in educational contexts, which he advocates is a crucial means for addressing questions of “otherness, difference, and power.”

In the sections that follow, I suggest three aspects or components of a critical reading of moral anger in clinical legal education contexts. The first aspect involves recognition and acknowledgement of moral anger in clinical law contexts. This is important given prevailing approaches to the disciplining and management of strong emotions in legal practice and pedagogies. Second, a critical reading of moral anger requires lawyers and law students to resist an approach in which our “feeling” of moral anger compels us to embrace “epistemological imperialism” and regnant lawyering practices which blind us to critical self-reflection. Third, I discuss ways in which moral anger might be directed towards potentially transformative and community-based approaches to practice characterized by collaboration, humility, and mutuality.

1. Recognizing and affirming moral anger in clinical law contexts

In clinical law contexts, pedagogies focused on critical analysis of emotional responses must recognize that law students are constantly contending with dominant discourses and understandings about the role of emotions in law and legal practice. As discussed earlier, these discourses construct emotions as falling outside the realm of law, and promote technocratic portrayals of “cool” and “tough” lawyers. While these dominant images of lawyers might be tempered by alternate images of “emotionally intelligent” lawyers, the discourses about these “new” lawyers also tend to portray emotions as private and manageable attributes that do not function to challenge power structures.

Thus, law students inevitably carry with them various ideas about the role of emotions and the importance of regulating emotional reactions in legal practice. Because of the dominant negative approach to overt expressions of emotions in legal education contexts, many law students may understand reactions of moral outrage as being upsetting, unprofessional, and “outside” the bounds of the legal realm in which they are operating. Some students whose interactions with clients, the legal system, or other aspects of their clinical work spark feelings of outrage at injustice may experience an urge to temper and regulate these feelings and to identify them as “out of place” in a clinical law environment.

It is crucial then to acknowledge dominant discourses about emotions within legal education contexts and to engage students in a process of analyzing the ways in which these dominant understandings work to “discipline” and constitute their feelings. Thus, acknowledging emotions such as moral outrage in clinical law contexts can represent a challenge to dominant ideas in legal education contexts.

The process of encouraging students to analyze their emotional responses to their clinical law experiences and to analyze the ways in which dominant ideas about lawyers and emotions shape these feelings, may be risky from a pedagogical perspective. Clinical law teachers may be wary of acknowledging emotions or expressing their own emotional reactions for fear of being identified as being “touchy-feely” or “soft.” As Margaret Thornton points out, law professors often deliberately frame their subject matter in a “hard,” rational, and technocratic fashion in order to gain legitimacy within the discipline. Thus, acknowledging and discussing emotional responses at all is an important initial step.

2. Anger, power, and “feeling better”

A critical reading of moral anger in clinical law contexts should, after acknowledging the feeling, examine the ways that feelings of anger may perpetuate dominant power structures in lawyer-client relationships. It must question to what extent the feeling of moral outrage allows the subject of that emotion to, in fact, “feel better” about injustice. It must resist an approach to emotions that becomes what Kathleen Woodward calls “a kind of narcissistic self-regard that blocks a commitment to structural transformation.”

Sara Ahmed’s theoretical work on emotions and moral anger provides a helpful framework for this task. By examining the ways in which dominant media focuses on eliciting emotional reactions from privileged, Western readers—including the emotion of moral outrage—on behalf of victims of poverty, famine, or violence in far-flung parts of the world, Ahmed points out the ways in which emotions can reproduce dominant power relations. She notes that certain spectres of injustice (for example, individual stories of the suffering of children) may evoke strong emotional reactions, whereas other stories of injustice will fail to evoke any feelings at all. Indeed, as Megan Boler points out, our failure to invest emotionally in so many issues and injustices is indicative of “emotional selectivity” or emotional “(in)attention,” which are habits that may privilege certain political and ideological narratives. This recognition reminds us that our feelings are not, in fact, entirely accurate gauges of injustice, but are rather mediated through pre-existing frames.

Ahmed also points out that although stories of injustice, war, and violence are disconcerting for spectators, emotions such as grief and moral outrage function to allow these privileged Western spectators to “feel better” about the injustices that they are witnessing through subsequent discourses of compassion and charity. Ahmed explains that this happens through the production of the figure of the dominant Western subject, who experiences emotions “about” others who become “objects of feeling.” Ahmed writes that feelings of anger that Western subjects may experience “when faced with the other’s pain is what allows the [subject] to enter into a relationship with the other, premised on generosity rather than indifference.” She goes on to explain that the feeling of anger “about” the suffering or injustice experienced by others by dominant Western subjects is “an ‘aboutness’ that ensure[s] that they remain the object of our ‘feeling.’”

By feeling strongly “about” the “objects” of injustice, Ahmed argues that privileged members of Western society are able to effectively erase histories of colonialism through discourses of charity, compassion, and action on behalf of victimized and marginalized people. Ahmed’s observation is similar to Megan Boler’s caution that our emotions may function as ways of permitting ourselves to abdicate or separate from oppressive histories. While separating from histories of oppression, dominant subjects of emotion may also actively “claim” power and recognition by engaging in charitable actions and requiring gratitude for these actions. It is for these reasons that Ahmed argues that feeling intensely about an injustice is not “necessarily to repair the costs of injustice. Indeed, this conversion can repeat the forms of violence it seeks to redress, as it can sustain the distinction between the subject and object of feeling.”

Ahmed’s critical insights about emotions generally, and moral anger in particular, assist in the process of critically reading moral anger in clinical law contexts. First, Ahmed’s observation that our emotional responses are often selective and mediated reminds us to examine the dominant legal and moral frames through which lawyers and law students assess and gauge injustice in the lives of our clients. It also reminds us that the individualized stories of clients at legal clinics are often connected to larger and systemic patterns and structures and that the solutions to these endemic problems are never found solely through an emphasis on individual relationships with clients or individualized advocacy.

Ahmed’s caution—that feeling strongly about injustice is not necessary to fix the personal and societal costs of injustice—is important in that it reminds clinical lawyers and students to examine urges towards “rescue fantasies” and ideas about their own agency to enact change on behalf of clients. Thus, clinical legal educators should be careful that feelings of “moral anger” on behalf of clients are not experienced as a means to simply “feel better” about injustice and to legitimize and fuel a sense of our own agency in achieving solutions to injustice. Certainly, lawyers who seek to insert themselves at the centre of solutions for clients are very likely to be ineffective at working within communities that seek social change. Indeed, Alfieri and others warn of the potential for lawyers to replicate unequal power relations in their relationships with clients: lawyers tend to “reenact the cultural and socio-economic marginalization of poor clients and communities in their advocacy.” Lawyers who subject their feelings to a critical reading may thus find that clients do not seek rescuing, but, in fact, have actively resisted oppressive structures and have developed many tactics, goals, and alliances with larger communities that can be engaged in the struggle for social justice. In other words, lawyers engaged in a critical reading of their feelings of moral anger will recognize that feelings are not in fact gauges of injustice, nor are they necessary to fix injustice. While engaging in heroic legal interventions may help clinical lawyers and students “feel better,” these interventions rarely address the systemic roots of the troubles that persist in the communities of our clients and may serve to reproduce and entrench power relations between lawyer and clients.

3. Moving from moral outrage to social justice

Zembylas and Chubbuck state that emotions are “socially and politically formed components of action, serving a crucial role in either addressing injustice or sustaining the status quo.” As I have argued above, without a critical and politicized “reading” of our feelings and anger about injustice, clinical lawyers and students may assume that they play a central role in addressing the injustice experienced by clients and may fail to interrogate whether their practices in fact promote a change to the status quo. Furthermore, because traditional regnant approaches to legal practice seldom lead to the amelioration of systemic injustice experienced by clients and communities, students spurred on by moral outrage to confront injustice through traditional legal approaches will also find themselves disappointed and possibly deflated. How then can we “read” moral anger in a way that has transformative and social justice implications? How can anger can be channeled into what Zembylas and Chubbuck term “activism against inequality”?

While a response of moral outrage at injustice may alert us to conditions of injustice, we must recognize that our initial “reading” of the situation is at best partial. We must therefore seek a deeper understanding and a wider view through a contextual and community-informed understanding. As Zembylas writes, “the first step in using anger as a mode of thoughtful analysis…is to understand where anger is coming from and what power relations are involved.” Such an approach would urge us to ask questions including: what is the community and political context in which the injustice has arisen? What is already being done within the community on this issue? How do our individual clients affected by the specific situation or law perceive the problem? How do community allies think lawyers can or should be involved? Our reading of injustice is not complete without the assistance of clients and the community. This requires us to be alert to the spaces where clients and communities are actively resisting injustice and contemporary forms of colonialism in their communities and strategizing against multiple layers of oppression.

In other words, what is required is a committed and “long-haul” approach that values relationships with communities, seeks understandings from clients and communities about the sources of injustice, and analyzes what approaches the community takes to anger and healing. In the context of the Canadian prairie city in which I live, this requires a commitment to understanding Indigenous approaches to colonialism and healing. For example, an Elder speaking as part of a Commission on First Nations and Métis Peoples and Justice Reform dialogue, in addressing the feelings of anger and trauma evoked by residential schools, stated that “the spirituality of our people is what pulled us through all these trials and traumas in our lives.” In other words, communities who have experienced long term traumas, oppression, and the “violence of law” best understand how to approach feelings of anger and rage at injustice and how to work towards healing.

As long-time community activists have explained, the struggle for social justice is one that must be characterized by patience and a willingness to see small victories in a slow journey full of setbacks. It is for this reason that social justice lawyers who work closely with communities are apt to describe love and hope as more important than outrage and anger at injustice as emotions that are sustaining. For example, William Quigley has written that love and hope must lie at the centre of social justice advocacy. This is reminiscent of the observations of Zembylas and Chubbuck, who suggest that educators must find ways to encourage the cultivation of emotions including excitement, love, and hope.
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