Jason A. Kempf


In 1996, the American Bar Association ("ABA") amended its law school accreditation standards and required that all ABA-approved law schools offer "live-client or other real-life practice experience. '' In doing so, the ABA confirmed the increasingly important role of law school clinics in legal education. This unique teaching environment moves students and professors out of the classroom and into real-world courtrooms. As these "student-lawyers" work on behalf of live clients, they "experience the legal ethics issues lawyers face every day, such as client confidentiality, conflict of interest, and competency issues." Not surprisingly, with these ethical issues come difficult decisions for the student-lawyer, as well as the clinical directors and faculty. Given that public law school clinics are funded by the government through the law schools, and "provid[e] legal assistance to traditionally under-represented individuals and groups," these ethical considerations take a rather unique position in case and client selection. The Eighth Circuit addressed these issues in Wishnatsky v. Rovner. Ultimately, the case turns on the court's analysis of government benefits and viewpoint discrimination in the law school clinic setting. This Note will explore the case history leading up to this decision and point out that, although the Eighth Circuit likely comes to the correct holding, its analysis of the legal background and policy implications of viewpoint discrimination and government benefits is lacking in substance. In addition to missing an opportunity to elaborate on what educational deference should be given to law school clinics, the court also failed to clarify and distill the increasingly confusing and misunderstood legal concept of viewpoint discrimination.

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