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You Have Discussed Lepers and Crooks. Sanism in Clinical Teaching Michael L

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You Have Discussed Lepers and Crooks. Sanism in Clinical Teaching Michael L digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 2003 You Have Discussed Lepers and Crooks. Sanism in Clinical Teaching Michael L. Perlin New York Law School, [email protected] Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Part of the Law and Psychology Commons Recommended Citation Clinical Law Review, Vol. 9, Issue 2 (Spring 2003), pp. 683-730 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. "YOU HAVE DISCUSSED LEPERS AND CROOKS": SANISM IN CLINICAL TEACHING MICHAEL L. PERLIN* There has been virtually no attention paid to the role of sanism in the clinical setting. Sanism is an irrationalprejudice of the same quality and characterof other irrationalprejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia and ethnic bigotry. It permeates all aspects of mental disability law, and affects all participants in the mental disability law system: fact finders, counsel, expert and lay witnesses. Sanist myths exert espe- cially great power over lawyers who represent persons with mental disabilities. These phenomena are especially troubling in the clinical setting, in which students are exposed for the first time to the skills that go to the heart of the lawyering process. The difficulties can be further exacerbated when the clinical teacher - either overtly or co- vertly - expresses sanist thoughts or reifies sanist myths. This article will explore the meaning of sanism, the general impact of sanism on the representation of persons with mental disabilities, the special problems faced when sanism infects the clinical teachingprocess, and some tentative solutions to this dilemma. INTRODUCTION There is a robust clinical literature on how issues of race, class, gender, and sexual orientation may influence all aspects of the clinical setting: on the relationship between student and client, between stu- dents, between student and clinical supervisor; the attitude of the fact- finder toward the clinical client and student lawyer.1 But there has been virtually no attention paid to the role of sanism in the clinical * Professor of Law, New York Law School. I wish to thank Jeanie Bliss for her invalu- able research assistance, Betsy Fiedler for her excellent editing assistance, and the partici- pants at the New York Law School Clinical Theory Workshop (especially Gene Cerruti) and the UCLA/Lake Arrowhead International Clinical Workshop for their helpful recommendations. 1 See, e.g., Jane Aiken, Striving to Teach "Justice, Fairness, and Morality," 4 CLIN. L. REV. 1 (1997); Jon Dubin, Faculty Diversity as a Clinical Legal Education Imperdtive, 51 HASTINGs L.J. 445 (2000); Bill Ong Hing, Raising Personal Identification of Class, Race, Ethnicity, Gender, Sexual Orientation, Physical Disability, and Age in Lawyering Courses, 45 STAN. L. REV. 1807 (1993); Kevin Johnson & Amagda Perez, Clinical Legal Education and the U.C. Davis Immigration Law Clinic: Putting Theory into Practiceand Practice into Theory, 51 SMU L. REV. 1423 (1998); Margaret Montoya, Voicing Differences, 4 CLIN. L. REV. 147 (1997). CLINICAL LAW REVIEW [Vol. 9:683 setting. Sanism is an irrational prejudice of the same quality and charac- ter as other irrational prejudices that cause and are reflected in pre- vailing social attitudes of racism, sexism, homophobia and ethnic bigotry. 2 It permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact find- ers, counsel, expert and lay witnesses.3 Its corrosive effects have warped mental disability law jurisprudence in involuntary civil com- mitment law, institutional law, tort law, and all aspects of the criminal process (pretrial, trial and sentencing). It reflects what civil rights law- yer Florynce Kennedy has characterized the "pathology of 4 oppression." Sanist myths exert especially great power over lawyers who re- present persons with mental disabilities.5 The use of stereotypes, typi- fication, and deindividualization inevitably means that sanist lawyers will trivialize both their client's problems and the importance of any eventual solution to these problems. Sanist lawyers implicitly and ex- plicitly question their clients' competence and credibility,6 a move that significantly impairs the lawyers' advocacy efforts.7 2 See generally MICHAEL L. PERLIN, THE HIDDEN PREJUDICE: MENTAL DISABILITY ON TRIAL (2000) (PERLIN, HIDDEN PREJUDICE). The classic study is GORDON W. ALL- PORT, THE NATURE OF PREJUDICE (1955). But see ELISABETH YOUNG-BRUEHL, THE ANATOMY OF PREJUDICES (1996). The phrase "sanism" was, to the best of my knowledge, coined by Dr. Morton Birn- baum. See Morton Birnbaum, The Right to Treatment: Some Comments on its Develop- ment, in MEDICAL, MORAL AND LEGAL ISSUES IN HEALTH CARE 97, 106-07 (Frank Ayd ed., 1974) (Birnbaum, Right to Treatment: Comments). See also Koe v. Califano, 573 F.2d 761, 764 n.12 (2d Cir. 1978). Dr. Birnbaum is universally regarded as having first developed and articulated the constitutional basis of the right to treatment doctrine for institutional- ized mental patients. See Morton Birnbaum, The Right to Treatment, 46 A.B.A. J. 499 (1960), discussed in 2 MICHAEL L. PERLIN, MENTAL DISABILITY LAW: CIVIL AND CRIMI- NAL § 3A-2.1, at 8-12 (2d ed. 1999) (PERLIN, MENTAL DISABILITY LAW). I recognize that the use of the word "sanism" (based on the root "sane" or "sanity") is troubling from another perspective: The notion of "sanity" or "insanity" is a legal construct that has been rejected by psychiatrists, psychologists, and other behavioralists for over 150 years. I nevertheless use it here, in part to reflect the way in which inaccurate, outdated and distorted language has confounded the underlying political and social issues, and to demonstrate, ironically, how ignorance continues to contribute to this bias. 3 On the way that sanism affects lawyers' representation of clients, see PERLIN, HID- DEN PREJUDICE, supra note, 2 at 28, 55-56. 4 See Birnbaum, Right to Treatment: Comments, supra note 2, at 107 (quoting Ken- nedy). See also id. at 106 ("It should be understood that sanists are bigots"). For a more recent consideration in this context, see Bruce Link et al., The Consequences of Stigma for Persons with Mental Illness: Evidence from the Social Sciences, in STIGMA AND MENTAL ILLNESS 87 (Paul Fink & Allan Tasman eds., 1992) (STIGMA). 5 See Michael L. Perlin, On "Sanism", 46 SMU L. REV. 373 (1992). 6 See Michael L. Perlin, Pretexts and Mental Disability Law: The Case of Competency, 47 U. MIAMI L. REV. 625 (1993). 7 See Keri K. Gould & Michael L. Perlin, "Johnny's in the Basement/Mixing Up His Spring 20031 Sanism in Clinical Teaching These phenomena are especially troubling in the clinical setting, in which students are exposed for the first time to the skills that go to the heart of the lawyering process: interviewing, investigating, coun- seling and negotiating. All of these are difficult for us (and our stu- dents) to learn, but this difficulty is significantly increased when the client is a person with mental disability (or one so perceived). The difficulties can be further exacerbated when the clinical teacher - ei- ther overtly or covertly - expresses sanist thoughts or reifies sanist myths. And sanism problems continue at every "critical moment" of the clinical experience: the initial interview, the case preparation, case conferences, planning of litigation (and/or negotiation) strategy, trial preparation, trial and appeal. This article will explore (1) the meaning of sanism, (2) the general impact of sanism on the representation of persons with mental disabil- ities (looking closely at the specific ethical dilemmas raised in these cases, the conflicts often faced by lawyers doing this work, and the special roles that such lawyers must perform), (3) the special problems faced when sanism infects the clinical teaching process, and (4) some tentative solutions to this dilemma. My title draws on Bob Dylan's brilliant masterpiece, Ballad of a Thin Man.8 Interpretations of this song abound, but no one has con- tradicted Robert Shelton's conclusion that it is about "an observer who does not see." 9 One of its central couplets begins: You've been with the professors And they've all liked your looks. With great lawyers you have Discussed lepers and crooks10 Since I started teaching a clinic in 1984, I have had this verse in my mind. Clinical teachers are professors who are lawyers. And clinical clients, all too often, strike clinical students as being "lepers and crooks." If we, like the eponymous Thin Man, allow ourselves to be "observer[s] who [do] not see," we will fall prey to sanism's corro- sive and malignant power. I. THE MEANING OF SANISM Sanism is as insidious as other "isms" 11 and is, in some ways, even Medicine": Therapeutic Jurisprudence and Clinical Teaching, 24 SEATTLE L. REV. 339 (2000). 8 BOB DYLAN, LYRICS, 1962-1985, at 198 (1985). 9 ROBERT SHELTON, No DIRECTION HOME: THE LIFE AND MUSIC OF BOB DYLAN 280 (DaCapo ed., 1997). 10 DYLAN, supra note 8, at 198. 11 Michael L. Perlin, "What's Good Is Bad, What's Bad Is Good, You'll Find out When You Reach the Top, You're on the Bottom": Are the Americans with Disabilities Act (And CLINICAL LAW REVIEW [Vol. 9:683 more troubling, because it is largely invisible, to a considerable degree socially acceptable, and frequently practiced (consciously and uncon- sciously) by individuals who ordinarily take "liberal" or "progressive" positions decrying similar biases and prejudices involving gender, race, ethnicity and/or sexual orientation. 12 It is a form of bigotry that "respectable people can express in public."'1 3 Like other "isms," san- ism is based largely upon stereotype, myth, superstition and dei- ndividualization. To sustain and perpetuate it, we use pre-reflective "ordinary common sense" and other cognitive-simplifying devices such as heuristic reasoning 14 in unconscious responses to events both in everyday life and in the legal process.
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