Where Legal Activists Come From

American Enterprise ^ | June, 2001 | Kenneth Lee

[The Ghost of FReepers Past]

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Where Legal Activists Come From

Kenneth Lee

Lately, we've seen many crocodile tears shed by left-wing lawyers lamenting the judicial decisions which cemented George W. Bush's election victory. How wrong for unelected judges to be imposing themselves on the popular will! they have cried.

Ironically, the Left has for years been relying on courts to accomplish what it could not achieve in the voting booth. To take just one instance among thousands, when the New Jersey state legislature passed a law against taxpayer-financed abortions a few years ago, pro-choice groups didn't lobby politicians or try to elect similarly minded legislators. Instead, they challenged the statute in the New Jersey Supreme Court as a violation of the constitutional guarantee of equal protection. And sure enough, the court struck down the law as "discriminatory."

From fleeing the mentally ill in New York City to defending racial preferences in California to contesting the presidential election in Florida, left-leaning lawyers have successfully waged a "rights revolution" over the last three decades. Trial lawyers increasingly litigate new entitlements for favored groups, establish exotic new individual rights, and overturn well-established legal and legislative prerogatives. As legal savant Walter Olson puts it, "Trial lawyers are now an unelected fourth branch of government."

What is less known is how law schools--as well as the corporate law firms which hire their students--increasingly provision young legal dreadnoughts to fight this rights revolution. The legal profession has always prided itself on providing pro bono services to indigent and unpopular defendants. In that same spirit, law schools have traditionally sponsored free legal clinics as a way to serve the "public good" and teach the art of advocacy. As a result, law school students routinely participate in clinics representing poor clients in, say, landlord-tenant disputes.

In recent years, however, law schools have shifted their focus away from individual needs and toward large, politically charged class-action lawsuits that attempt to force sweeping public policy changes. Each year, thousands of law students across the nation enroll in these courses, which generally include a classroom as well as a clinical component. In the classroom, professors lecture on novel legal theories (such as "environmental racism") which defy traditional common law norms. And in the clinical portion of the course, the students put the theory into action: Seasoned activist lawyers serve as mentors, helping students draft complaints and file briefs on behalf of the latest cause celebre.

Law schools have established these clinics under the misleading rubric of promoting the "public interest." They claim that these clinical courses are steeped in the same venerable tradition of pro bono voluntarism. In reality, though, "public interest litigation" too often means training young lawyers to pursue partisan, often radical, policy goals--at the expense of the public.

Take Tulane Law School's Environmental Clinic, for instance. Tulane students waged a two-year court battle to prevent Shintech, Inc. from receiving government permits to build a $700 million PVC plant in the rural Louisiana neighborhood of St. James Parish. The law school students accused Shintech of "environmental racism" alleging that the plant pollution would unfairly affect the parish's poor, minority residents. Although polls showed that most of the parish residents supported building the plant, the students apparently had a different conception of what was in their interests. And their interminable litigation ultimately forced Shintech to build the plant elsewhere.

While the law school students celebrated their legal victory, the residents of St. James Parish mourned the economic loss. Dale Hymel, the president of the parish, lamented that "Shintech had proposed a program to train unemployed people in the parish, and now they are going to miss out on a good quality of life. The lost revenue and taxes are also a blow to our school system and police." Grayling Brown, president of the St. James chapter of the NAACP, added "We really need the jobs."

Perhaps one of the oldest and most successful "impact litigation" clinics is the Rutgers Law School's Women's Rights Litigation Clinic. Founded about three decades ago, it has served as a model for others. The Women's Rights Litigation Clinic was one of the groups that successfully challenged the New Jersey abortion statute barring taxpayer funds for abortions. That legal victory was doubly painful for abortion opponents because the law school used taxpayers' money in court to force the public to fork over even more of their money for abortion services.

Once the budding campus activists graduate from law school, their alma maters will often provide financial inducements for them to pursue a career in political agitation law. Many law schools will now forgive thousands of dollars in loans if students will commit to a career in public policy litigation. Last year, for example, Yale Law School dispensed $1.3 million to 227 graduates for this purpose, while New York University Law School gave over a million dollars to 185 graduates.

Ironically, staid, conservative law firms--with their rosters of corporate clients--also underwrite radical and often anti-business "impact litigation." Law firms donate millions of dollars in grants that draw law school students into legal activism. For example, Skadden Arps, a 1,200 lawyer corporate firm, has established a fellowship which pays recent graduates to work for two years at primarily left-leaning outfits like the NOW Legal Defense Fund and the Western Center on Law and Poverty. (The latter organization's claim to fame has been its successful lawsuit preventing the state of California from receiving a federal waiver to experiment with welfare reform.)

This tension between "impact litigation" and mainstream law is nowhere more apparent than at Harvard Law School. Each fall, hundreds of law firms, from Wall Street to Silicon Valley, descend on the Harvard campus to offer jobs to upcoming graduates. Activists grouse that this makes the law school a mere "corporate cog." In the past year, however, student activists have made stunning strides in removing the private sector "taint" from the school.

First, they pressured Harvard to stop holding receptions at law firms for incoming law students. The activists claimed such events subtly influence students to forgo activism and instead become buttoned-down corporate attorneys.

Then, after repeated protests and lobbying of the administration, activists succeeded in raising the salary cap from $51,000 to $72,000 for the public-interest loan forgiveness program. This means new graduates can now earn up to $72,000 at a rabblerousing "public interest" job and still qualify to have the school forgive part of their educational loan. (Only pampered Harvard students would think that a 25-year-old earning more than $51,000 a year was financially beleaguered.)

Emboldened by their success, student activists, with the help of liberal faculty members, recently promulgated a proposal mandating a graduation requirement of 40 hours of "public interest" work. As the faculty proposal put it, the school needs to "expose students both to substantive law issues and to the ambience of representing poor people." At least one professor, Charles Fried, who served as solicitor general under President Reagan, publicly opposed the plan. "This is the voluntarism of the Cuban cane fields," he wrote in a memo to faculty members. "We should teach our students the virtues of voluntarism, but we should respect their moral autonomy when we do so."

As Professor Fried notes, law students and lawyers can, and do, promote the public good by providing their services to those who cannot afford it. But this type of traditional pro bono work has lost favor among law school students who prefer the more potent radicalism of politicized class-action suits.

To be fair, some conservative legal foundations, like the Center for Individual Rights, engage in their own public policy litigation to counter the liberal rights revolution. But for the most part, the legal activism now being encouraged among students is of a distinctly left-wing variety.

In fact, lawyers who try to pursue conservative causes through public interest law face stiff institutional resistance. At Skadden Arps--whose fellows engage in virtually every imaginable liberal cause--a few conservative attorneys defended the legality of the anti-bilingual education initiative in California. More liberal members of the firm were not pleased. Some partners hinted the firm might even penalize such politically incorrect pro bono projects.

So much for liberality.

COPYRIGHT 2001 American Enterprise Institute for Public Policy Research COPYRIGHT 2001 Gale Group

[The Ghost of FReepers Past]

Dated but still very relevant.

[atomicpossum]

Where Legal Activists Come From

[The Ghost of FReepers Past]

Oh, I stand corrected. LOL!