Polluters and other defendants in numerous lawsuits brought by Law School Clinics in behalf of the victims of corporate and state government abuse have discovered their adversaries' Achilles heals. Reprising events in the early history of the Legal Services Corporation, the defendants are now actively moving in state legislatures to cut off funding to the law school clinic lawyers who represent their adversaries. The result, they hope, will be continued immunity from legal inquiry and a continuation of business and pollution as usual.
Many years ago, during The Great Society, the federal government funded the Office of Economic Opportunity, (OEO) which provided many services, including civil legal services to poor people. These legal services were obviously capable of transforming society in fundamental ways. Poor people, for so long disenfranchised, found they had access to federal and state courts and free lawyers to pursue fundamental violations of their civil rights. Instantly, poor people had allies in enforcing their legal rights. In response, those who favored the status quo immediately sought not to remedy poor people's complaints, but instead to cut them off from their lawyers, to forbid the lawyers from pursuing these important cases.
By 1975, in response to conservative complaints, Richard Nixon managed to dismantle the OEO and to replace it with the Legal Services Corporation, which took on the OEO's legal services mission In the early and mid-70's LSC lawyers continued nevertheless to provide poor people with needed legal services to address their personal legal issues (e.g. divorce, foreclosure, debt collections, etc) in cases that could not generate fees (e.g. personal injury accidents which generated contingency fees), but they also engaged in "law reform" cases, most frequently federal, class action, civil rights cases against state and federal agencies in behalf of welfare recipients, consumers, prisoners, and numerous others who could not retain counsel for important, worthy cases. These cases were capable of changing entire systems in state government: how welfare benefits, food stamps and other benefits were provided, how the states ran their penal and mental health facilities, whether the states could permit various kinds of consumer transactions, and so on.
Congress and state governments, of course, reacted extremely negatively to these cases. Who, they inquired, did these welfare recipients think they were to file lawsuits so that they would receive prompt benefits? Who did these prisoners think they were to file lawsuits to require uncensored mail and medical treatment and freedom of religious exercise? Who do these unemployed workers think they are to require fairness in decisions about their unemployment benefits? The list of complaints was as numerous as the policies of governmental and corporate agencies who were being challenged. What made the howling of these defendants most vocal was that for years their practices had been illegal, but those they were taking advantage of, those who were their victims didn't have the resources to fight back in any effective way.
At first, President Nixon's henchperson sought to kill the LSC program off. Failing to kill it completely, the federal government unleashed a trend which continues today in restrictions of the many, many kinds of cases LSC lawyers are not permitted to pursue. In general the civil legal assistance that remains includes the following:
* Family law: LSC grantees continue to help victims of domestic violence by obtaining protective and restraining orders, helping parents obtain and keep custody of their children, helping family members obtain guardianship for children without parents, and other family law matters. More than a third of all cases closed by the local programs are family law cases.
* Housing & Foreclosure Cases: More than 25 percent of cases involve helping to resolve landlord-tenant disputes, helping homeowners prevent foreclosures or renegotiate their loans, assisting renters with eviction notices whose landlords are being foreclosed on, and helping people maintain federal housing subsidies when appropriate.
* Consumer Issues: Twelve percent of cases involve protecting the elderly and other vulnerable groups from being victimized by unscrupulous lenders, helping people file for bankruptcy when appropriate and helping people manage their debts.
* Income Maintenance: Approximately 11 percent of cases involve helping working Americans obtain promised compensation from private employers, helping people obtain and retain government benefits such as disability benefits to which they are entitled.
These are extremely important services, they are very important to a huge number of people and they are worthy of our full support. But if there was at one time a movement in the LSC to initiate reform, to represent poor people in large, class action, civil rights cases against government institutions and corporations, to shift power from the status quo to the then disenfranchised, it long ago moved from LSC. It was no longer funded by the Government. The Government, if it ever was, was no longer intent on rooting out inequality by providing access to the courts at taxpayer expense. There could be civil representation of poor people, and they would benefit from it, but the lawyers would be forbidden from seeking to alter the balance of power in society.
Where is this important legal work now? Two main places (apart from private law firms that for one reason or another decided to handle important cases pro bono): not for profit legal services organizations including but not limited to the NAACP Inc Fund, Center For Constitutional Rights, ACLU and Mississippi Center For Justice, all of which, of course, have limited resources and must choose cases on the basis of the impact they will have, and as important, the Law School Legal Clinics.
And now, to no one's surpirse, the the law school clinics face the same tide of reaction from state and federal government and the large corporations they are suing, as LSC faced thirty-five years ago. The New York Times reports:
ANNAPOLIS, Md. — Law school students nationwide are facing growing attacks in the courts and legislatures as legal clinics at the schools increasingly take on powerful interests that few other nonprofit groups have the resources to challenge.
On Friday, lawmakers here debated a measure to cut money for the University of Maryland’s law clinic if it does not provide details to the legislature about its clients, finances and cases.
The measure, which is likely to be sent to the governor this week, comes in response to a suit filed in March by students accusing one of the state’s largest employers, Perdue, of environmental violations — the first effort in the state to hold a poultry company accountable for the environmental impact of its chicken suppliers.
Law clinics at other universities — from New Jersey to Michigan to Louisiana — are facing similar challenges. And legal experts say the attacks jeopardize the work of the clinics, which not only train students with hands-on courtroom experience at more than 200 law schools but also have taken on more cases against companies and government agencies in recent years.
State government itself and its powerful, corporate contributors know full well how to respond to meritorious lawsuits that will result in injunctions and expense and changes in their profits. Don't fix the problem, they say, just cut off the plaintiffs' lawyers' funding. Make the plaintiffs incapable of pursuing their claims however meritorious. Forget about whether the claim is or is not going to prevail in court, just make it go away. Cut off funding for the law school clinics, and voila! it's as if the lawsuit had been won by the defendants. The practices that led to the lawsuit remain immune from review and remedy because nobody who is affected can afford to pursue the issue.
The Maryland clinic's litigation is instructive:
The fight is proving especially heated here in Maryland because it so directly focuses on Perdue, one of the state’s most powerful political players and the sixth-largest poultry company in the country.
The suit accuses Perdue and Alan and Kristin Hudson, two Maryland chicken farmers who contract with Perdue, of polluting the Pocomoke River and allowing chicken waste from the farm to flow to the Chesapeake Bay.
The suit argues that Perdue dictates so much of how farmers handle their flocks — including the food and medicine the chickens get, as well as the size and location of the bird houses — that the company effectively shares operational control of the farm and thus should be held accountable for what happens there.
Luis A. Luna, a spokesman for Perdue, said that though the company had done no lobbying in support of the pending legislative measure, the company’s chairman, Jim Perdue, went to Annapolis in early March to tell lawmakers that cases like this one represented "one of the largest threats to the family farm in the last 50 years."
"Perdue can take care of itself," Mr. Luna said. "But the small farmers who make up an important part of this industry cannot survive against lawsuits like this."
And why, you might ask, isn't Maryland's Attorney General's Office pursuing this very litigation to prevent the pollution of streams and rivers with chicken manure? Why is it that the clinic finds itself acting as if it were an agency that was supposed to enforce Maryland and US environmental laws and regulations? Where is Maryland's enforcement power and the EPA?
"There is no reason that tax money should pay for these law students to act like regulators," said State Senator Robert Adley, a Republican who submitted the bill in response to a request from his state’s oil and gas industry.
Obviously, when the regulators put issues on hold and slumber, someone needs to step in. The concept is called becoming a private attorney general. The law school clinics have stepped up because they needed to, and now for all their good work, they face being drastically limited or shut down. They too will always be able to provide divorces to people who cannot afford counsel, but, just as happened with LSC 35 years ago, those who control the purse strings will be able to stop all of their threatening, law reform efforts.
The answer, if there is one, involves increased funding from private individuals and the Bar to private, not-for-profit firms and organizations which can effectively pursue these important issues. Or more unlikely, the commitment of state governments and law schools to providing counsel in important cases to those who would otherwise remain voiceless, regardless of the controversy that might provoke. In the absence of both of these alternatives, corporate and governmental mis- and malfeasance prevail solely because no one can challenged them in the courts.