The New York Times reports that law school legal clinics continue to spark controversy and political backlash, particularly (though not exclusively) at state-supported schools. The story keys on efforts by some Maryland legislators to defund the clinic at the University of Maryland law school unless the clinic turns over information about its clients and its finances. This might seem like no big deal — the fact of client representation is not privileged and the legislature has a right, if not obligation, to know how state money is spent — but the request appears to have been a politically motivated respoonse to clinic lawsuits against Perdue, a major employer within the state. Maryland legislators did not seem to care what the clinic did until it challenged a powerful local corporation.
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.“We’re seeing a very strong pushback from deep-pocket interests, and that pushback is creating a chilling effect on many clinics,” said Robert R. Kuehn, a law professor at Washington University in St. Louis, citing a recent survey he conducted that found that more than a third of faculty members at legal clinics expressed fears about university or state reaction to their casework and that a sixth said they had turned down unpopular clients because of these concerns.
But critics say law clinics are costly, unaccountable and often counterproductive to states’ interests, especially as they have broadened the scope of their work. The debate has raised larger questions about academic freedom at state-financed law schools and the role lawmakers should have over decisions at those schools.
Adam B. says:
Perdue, not Purdue, and it’s regrettable to see these efforts to quash legally viable claims through these methods. How about “don’t break the law”?
[Oops. Fixed]
April 4, 2010, 9:46 amJeff says:
If you’re going to twist the tiger’s tail, you might want to have a plan for dealing with its teeth.
April 4, 2010, 10:20 amShelbyC says:
I don’t know if that’s bad. If some agency is funding what I think is a frivolous lawsuit against me, I’m going to contact my representative too. If the state’s going to pay the other side’s legal expenses, why shouldn’t they pay mine too?
April 4, 2010, 10:22 ambyomtov says:
Shelby,
I don’t know if that’s bad. If some agency is funding what I think is a frivolous lawsuit against me, I’m going to contact my representative too. If the state’s going to pay the other side’s legal expenses, why shouldn’t they pay mine too?
Fair enough. But who decides the suit is “frivolous?” Do you think the legislator is going to make a careful determination of that before acting? Try to include the words “campaign finance” in your answer.
April 4, 2010, 10:37 amJavert says:
So? Politics drives the redistribution of corporate money (via countless taxes) to those clinics. And politics drives the clinics’ suits against those companies. (That’s quite a racket: force the companies to pay for law suits against them.) Goose/Gander.
April 4, 2010, 10:44 amJohn Herbison says:
I don’t know about Maryland in particular, but in federal courts and in many states the filing of frivolous lawsuits is sanctionable, including, where appropriate, an order to pay the adversary’s attorney fees. I therefore take squawking by tortfeasors about a legislative response to so-called “frivolous lawsuits” with a large grain of rock salt.
April 4, 2010, 10:53 amTrainSaw says:
By this logic you’d be equally happy about white-collar criminals trying to defund the DOJ.
April 4, 2010, 10:57 aminterested says:
yes, I doubt these companies worry much about frivolous lawsuits, which are dismissed quickly and at low cost.
They’re much more worried about lawsuits of large scope and with a high degree of apparent merit- these are a large financial risk to them.
April 4, 2010, 10:57 amSarcastro's Little Brother says:
Why, the law students do. They and their professors are always paragons of virtue and law professors never have a political agenda. Just those evil corporations do.
April 4, 2010, 10:57 amT. Gracchus says:
“the fact of client representation is not privileged”
That is a bit misleading. There are a number of circumstances in which the fact of representation is privileged. In addition, there are serious problems with disclosure of representation to the public. See, for example, restrictions on disclosure of client information through credit card processing. Restrictions on disclosure are also often part of the retainer agreement.
April 4, 2010, 11:01 amSteve says:
Legal Aid met the same fate after they filed a bunch of public-interest litigation in California in the 70s. The Attorney General of CA, Ed Meese, soon became Attorney General of the US, and Legal Aid found itself with all kinds of new restrictions on its litigation activities.
As the comments above demonstrate, your opinion on such things is likely to be driven by your opinion on the concept of public-interest litigation in general. If you think it’s basically all a racket, you’re not going to be too unhappy when it gets shut down.
The lesson is that if it were easy to take on powerful interests, then we wouldn’t call them powerful.
April 4, 2010, 11:11 amOrenWithAnE says:
The difference is that the DOJ is directly accountable to the President, who chooses (and can dismiss) the AG. Here, the clinic’s decisions are not accountable to any democratically elected body. I’m not saying this difference is necessarily determinative in this case* but it’s dishonest to compare a body under executive control to one that sails according to their own wind. The former can credibly claim to represent the interest of the taxpayers (and hence justify being funded by taxpayer dollars).
* Aside: In truth, I have little sympathy for the MD legislature that passes a water-pollution law and then is upset when it is enforced to the letter — they should have written what they meant and meant what they wrote. They come off here as wanting to give Perdue special exemption from the law that they wrote, a position utterly without merit. That said, it doesn’t change the analysis that a legal clinic has no right to demand funding by the State with no strings attached — that’s the devil’s bargain: you take the State’s money and you ought to play by their rules.
April 4, 2010, 11:11 amOrenWithAnE says:
Can I take a middle ground and concurrently hold that:
(1) Public-interest litigation is generally a good thing.
(1b) The State ought not to restrict privately funded PIL with onerous rules.
(2) The State has no duty to fund PIL if they don’t want to and may chose to defund it entirely or selectively.
April 4, 2010, 11:15 amtroll_dc2 says:
The rush by some commenters to declare the clinic’s recently filed lawsuit against Perdue to be frivolous is most interesting. They cannot possibly know that to be so. The assertion is an example of ideology at work.
April 4, 2010, 11:16 amSoronel Haetir says:
Then if you are going to be represented by a party with multiple competing interests you had better make sure that the person you are dealing with actually has the authority to make the agreement you are entering. That was an issue behind the CRU stonewalling as well, with their claiming to have entered confidentiality agreements but no record of any such agreements coupled with the fact that any agreements of the sort would almost certainly have been invalid due to the CRU not having authority on its own to enter such binding confidentiality agreements.
Regardless, I would find the idea that tax money should be available for such clinics and then privilege prevent anyone from finding out who the clinic is representing to be very troubling.
April 4, 2010, 11:17 amArthur Kirkland says:
Should every criminal defendant be entitled to submit his attorney’s invoice to the state for payment? Would any perceived unfairness be defused by offering offer each of a clinic’s targets access to the public defender’s services?
April 4, 2010, 11:26 amKalua says:
I don’t recall the specific details of how targeted the cuts were, but IICR, cutting certain funding to libraries because of unpopular displays of art (e.g. Mapelthorpe) was held to violate the First Amendment, so could not this sort of thing implicate the Petition Clause of the First Amendment?
April 4, 2010, 11:34 amLouisiana says:
Some of you are suggesting the legislatures directly fund these clinics.
I can tell you that in Louisiana, the legislative proposal is aimed square at the clinic at Tulane- a private school whose clinic is not publicly funded.
But the proposal covers any school that receives any state money- and Tulane, with its medical school and other educational endeavors, does in some programs receive some state money.
The prompt for this move, was the clinc’s suit over air pollution in Baton Rouge. Nevermind the pesky question of whether the suit has merit- the industry’s top shill admits it is an attempt to “kneecap” the lawsuit.
I wonder if that could be admitted into evidence . . .
April 4, 2010, 11:41 amArthur Kirkland says:
Frank Perdue, who appeared in television commercials, seemed like such a likable fellow. Too bad his son, Jim, turns out to be such a dick (don’t miss his statement on “environmental stewardship” on the Perdue website, in which he equates Perdue’s commitment to the environment to its commitment to the quality of its foodstuffs). That adage concerning third-generation ownership is tough to beat.
April 4, 2010, 11:48 amSoronel Haetir says:
I believe that if sixth amendment law is to have any logical consistency then yes, a publicly paid attorney needs to be available to any criminal defendant regardless of whether they can afford one on their own. That does not mean the defendant gets to choose the attorney and then submit the bill, though I do believe that in cases resulting in acquittal that should occur. If the government fails to prove its case the defendant should be made whole.
April 4, 2010, 11:49 amKalua says:
I tend to agree, but it is not always true. In some states, they really only apply to a pro se and have a “get-out-of-jail-free” clasue of reaonable belief:
“Section 15-36-20 creates a presumption that a person taking part in the initiation or continuation of proceedings acted with a proper purpose ‘if he reasonably believes in the existence of facts upon which his claim is based’ and . . . reasonably believes under the facts that his claim may be valid under existing or developing law.” Rutland v. Holler, 637 S.E.2d 316 (S.C. Ct. App. 2006) citing Hanahan v. Simpson, 485 S.E.2d 903, 912 (S.C. 1997)
April 4, 2010, 11:49 amJeff Dege says:
Anybody but a lawyer. Lawyers have a vested interest in ensuring that as many questions spend as long a time in court as possible.
April 4, 2010, 11:56 amAJK says:
I haven’t seen anyone saying that. What I have seen is the opinion that the legislature is entitled to defund clinics if they determine that they are filing unmeritorious suits, and that the targets of those suits are entitled to notify their representatives.
April 4, 2010, 12:01 pmBrett Bellmore says:
Not so! There are numerous questions which, if they ever saw the light of day in court, might inconvenience the legal fraternity. That’s what “standing” and “non-judiciability” are all about, isn’t it? Keeping parts of the law that inconvenience the legal community out of the courts?
April 4, 2010, 12:12 pmJmaie says:
Should every criminal defendant be entitled to submit his attorney’s invoice to the state for payment? Would any perceived unfairness be defused by offering offer each of a clinic’s targets access to the public defender’s services?
IANAL. The issue in question is a civil matter. Seems that would make a difference.
April 4, 2010, 12:15 pmOrenWithAnE says:
Evidence of what? The intent of the an industry to enact policies favorable to their interest via the protected democratic means of petitioning the legislature?
If the legal clinics’ work is good for the State, convince the legislature (voters) and you won’t have a problem with defunding. Otherwise, this is a tempest in a teapot.
April 4, 2010, 12:22 pmbyomtov says:
John Herbison,
I therefore take squawking by tortfeasors about a legislative response to so-called “frivolous lawsuits” with a large grain of rock salt.
Yes.
Indeed, I’ll take that squawking seriously when thsoe who complain endlessly about it also squawk about frivolous actions by defendants. There are lawsuits that wouldn’t need to go forward at all if the defendant – especially when it’s a large corporation – would live up to its responsibilities.
This is not a question of “evil.” It’s a simple mater of fact that the corporation in general has much greater resources than the individual or small business plaintiff and, even more important, an essentially infinite time horizon, so delay and stonewalling can be quite effective.
April 4, 2010, 12:27 pmTatil says:
I pay a lot of taxes too. Which laws should I be exempt from? That would make paying taxes a lot more popular. The more you pay the more you gain, I like it…
April 4, 2010, 12:33 pmBob from Ohio says:
Clinics exist to train law students to become litigators. But they have largely morphed into tax payer funded left wing political efforts.
Even mainstream liberals in Maryland want to rein in these lefty politics. Perfectly understandable.
If this litigation is so valuable to Tulane’s educational mission, Tulane can just give up the money.
But its not education at all. You can train litigators without splashy “public interest” suits.
April 4, 2010, 12:37 pmbyomtov says:
Politics drives the redistribution of corporate money (via countless taxes) to those clinics. And politics drives the clinics’ suits against those companies.
How do you know politics drives the clinics’ suits? Or is it just that you imagine the students are all fire-breathing Marxist revolutionaries eager to destroy Capitalism As We Know It? Surely even the most wonderful corporation in the country might every now and then do something that incurs a lawsuit.
BTW, I wonder how many of those who oppose the clinics also argue, elsewhere, that the tort system is an adequate substitite for regulation.
April 4, 2010, 12:42 pmbyomtov says:
Here’s a good chuckle from the article:
April 4, 2010, 12:46 pmSteve says:
If the legal clinics’ work is good for the State, convince the legislature (voters) and you won’t have a problem with defunding. Otherwise, this is a tempest in a teapot.
I see you subscribe to the belief that the majesty of the law allows the poor and rich alike to hire lobbyists to petition the legislature for favorable treatment. That said, the idea that the legislature is the place where proposals rise or fall based strictly on the question of benefit to the public is pretty comical.
April 4, 2010, 12:47 pmfirst history says:
The Attorney General of CA, Ed Meese….
Ed Meese was never Attorney General of California. He served as legal affairs secretary from 1967-1968 and as executive assistant and chief of staff to Governor Reagan from 1969 through 1974.
April 4, 2010, 12:54 pmLouisiana says:
That may not be the case- and is, at least, a defensible argument.
But several commenters above, were saying that the legislatures are currently funding these clinics, and curtailing them was simply a matter of dropping the appropriation. That is not the case for private schools.
April 4, 2010, 12:56 pmAnti-Fed Interventionist says:
The simple solution is to abolish the tort system completely. If someone gets wronged, its their own fault for buying a defective product or going to incompetent lawyer or doctor. Buyer beware.
April 4, 2010, 12:56 pmyankee says:
If you think the legislators’ demands to defund this clinic have anything to do with the merits of this lawsuit I can get you a great deal on a bridge.
The legislature is “entitled” to defend the clinic because it picked a wealthy and influential defendant, but that doesn’t mean they should.
April 4, 2010, 12:58 pmAdam B. says:
This strikes me as more correct than anything else which has been said here; the legislature should either get rid of the private right of action (or the regulation itself), or get out of the way. Anything else is the kind of singling-out which Justice Jackson found so offensive in Railway Express.
April 4, 2010, 1:06 pmDavid M. Nieporent says:
Lay people might be fooled by this; anybody who actually knows something about the legal system knows that even the most ludicrous suit is virtually never declared frivolous. Frivolous is (deemed to be) such a low standard that utterly meritless suits — suing McDonalds because one is fat, for instance — are not declared frivolous.
So, for instance, when someone sues a dry cleaners for $60 million for losing his pants, that dry cleaners finds it cheaper to offer him $12,000 to get him to go away than it does to fight the suit and get it declared frivolous. (Unfortunately for said litigant, he was so loony he rejected that offer.) Or when someone sues an airline for racial discrimination because a stewardess says “Eenie meenie minie moe, take a seat, we’ve got to go,” that’s not frivolous either.
In short, filing frivolous suits is virtually never actually sanctioned (and the sort of clearly frivolous suits that are filed — the kind where tinfoil hats are involved — the plaintiffs are generally judgment-proof.)
April 4, 2010, 1:10 pmJavert says:
I didn’t say anything about defunding the clinics. I merely pointed out the hypocrisy of crying “politics” in the one case, but allowing it in the other.
Really. Try to follow a person’s logic before attempting to impugn it with a (faulty) analogy.
April 4, 2010, 1:39 pmJeff Hall says:
Yep, the thought of a bunch of rural small businesses going bust during a recession so that overfed urban lawyers can feel briefly virtuous sure makes me chuckle.
April 4, 2010, 1:43 pmJavert says:
Twenty years in academia — the last twelve at a top-ten university, with intimate awareness of law school advocacy clinics. Do your own survey. It’s pretty easy.
April 4, 2010, 1:49 pmMalvolio says:
I don’t know for certain that this is meant as sarcasm, but I should point out that 99% of the time, the system you are describing is what we actually have. As a practical matter, if you aren’t happy with a product or service and you cannot get satisfaction from the seller, you have no real recourse.
I once had a contractor take a deposit and not do the work. The bonding company refused to pay because the contractor’s license was suspended when he took the deposit (and therefore ineligible for the insurance they had sold him); the state government offered to take a report and, if enough other people complained, extend his suspension; I could have sued him and gotten a default judgment, suitable for framing but useless for getting my money back. Buyer beware indeed.
April 4, 2010, 1:54 pmJavert says:
That is false. Private schools (with only a few notable exceptions) are heavily funded by taxpayers (including corporations) via, for example, student loans, and grants to students and faculty.
April 4, 2010, 2:06 pmJeff Dege says:
Or you could have checked to see that his license was current, before you hired him.
April 4, 2010, 2:24 pmJohn Herbison says:
Yeah, right. Instead of hiring a lawyer, hire a legbreaker.
April 4, 2010, 2:27 pmSuperSkeptic says:
Interesting admission, Steve. We may agree on something after all. I do hope you’ll remember this come the next big cry for legislation or come the next debate regarding the constitutional limitations of the legislature…
April 4, 2010, 2:27 pmbyomtov says:
Jeff Hall,
Yep, the thought of a bunch of rural small businesses going bust during a recession so that overfed urban lawyers can feel briefly virtuous sure makes me chuckle.
The thought of Jim Perdue going to the state capital and talking to lawmakers about the bill, and then having his spokesman claim he wasn’t lobbying was worth a chuckle, I thought.
So was the business about small farmers. It’s Perdue who is being sued.
April 4, 2010, 2:33 pmMahan Atma says:
I’ve always thought our court system should function according to something higher than the law of the jungle.
Don’t you?
April 4, 2010, 2:38 pmArthur Kirkland says:
Great point. One plan: Be sure a clinic represents a few wounded veterans, or soldiers’ surviving spouses. Anyone who objects to the clinic becomes a hero-hating communist siding with terrorists.
April 4, 2010, 2:43 pmAndy Patterson says:
The reality is that “small farmers” are threatened far more by the likes of Perdue than by law school clinics.
April 4, 2010, 2:45 pmyankee says:
If there’s any logical fallacy more annoying than argumentum ad parvulus, it’s the ritual invocation of “small business” to defend the interests of large businesses. Unless you think your local independently owned Chinese restaurant or barbershop has $4.6 billion in annual revenue.
April 4, 2010, 3:10 pmAndrew J. Lazarus says:
The complaints would have more merit if the clinics lost the cases; but they usually win, don’t they? Makes you think the rich guys just want an uneven playing field.
April 4, 2010, 3:13 pmMike McDougal says:
That’s completely detached from how it works in the real world. You don’t keep clients and get new ones by refusing to do a good job.
April 4, 2010, 3:39 pmtroll_dc2 says:
You have to remember that most of the people who post on this board are conservatives who are comfortable with that perspective.
April 4, 2010, 3:42 pmOrenWithAnE says:
It’s certainly not needed as a substitute for a State that wishes to enforces the laws that it has. MD certainly (judging by the legislature) does not desire to have those laws strictly enforced, at least against Perdue. Normally, it is within the (unfortunate, perhaps) writ of the State government to pass laws and then decline to rigorously enforce them.
I don’t need to subscribe to any belief of the sort because I don’t think it matters. The legislature’s actions (provided they stand regularly for free and fair elections and otherwise comport themselves in accordance with the Constitution that governs them) are inherently legitimate.
We’re agreed, with the caveat that we follow Jackson all the way here. Offensive or not, the legislature is entitled to fund and defund as it pleases.
April 4, 2010, 4:04 pmAdam B. says:
They don’t want a playing field at all.
April 4, 2010, 4:05 pmDjDiverDan says:
If you simply read the Rules and the relevant Statutes, you might think that filing a frivolous lawsuit would get you sanctioned, but as a practical matter those rules have been renderred largely toothless by exceptions, loopholes, and judges unwilling to enforce them. Even in Federal Courts, Rule 11 sanctions cannot be sought by a party unless they send a written notice and give the offending party 21 days to withdraw the frivolous motion. So you send the Rule 11 Letter, file a timely response (for which you bill your client), and if the Motion is withdrawn, your client has no recourse. In State Court (at least in Texas), it’s almost impossible to get a judge to impose sanctions against a lawyer who might be a campaign contributor.
April 4, 2010, 4:09 pmDavid M. Nieporent says:
No; why would you think that? They usually settle, as with all litigation.
April 4, 2010, 4:21 pmbillo says:
I think it depends a little on what one believes the purpose of these clinics is. If the purpose is to help disadvantaged people with their legal difficulties that’s one thing. If the purpose is to fund politically-motivated legal attacks, it’s another. I certainly don’t see any governmental obligation, or any particular justification, to use public funds to pay for law-professors pet political causes.
April 4, 2010, 4:33 pmOrenWithAnE says:
Nor is that an invalid request. Certainly it would be within the rights of Perdue to propose that all environmental laws in the State of Maryland be repealed.
April 4, 2010, 4:42 pmyankee says:
The legislature is “entitled to” make its clinic funding decisions based on the effect on Jim Perdue’s pocketbook, but that doesn’t make it a legitimate reason to do so. Legislators should be making their decisions based on the public interest, their constituents’ values, and the Constitution. I can’t think of any circumstance in which “this will benefit a wealthy and influential campaign contributor” constitutes an acceptable justification for public policy.
There are legitimate reasons to criticize clinics of this sort, but there’s absolutely no reason to think the legislature cares about them. It’s all about Perdue being rich and powerful.
April 4, 2010, 5:04 pmyankee says:
I thought the point was to help educate the students. I can see a lot of potential educational advantages in working on complex environmental litigation, though there are also disadvantages (the litigation is likely to last years, meaning that students won’t have the opportunity to see it from beginning to end).
April 4, 2010, 5:14 pmlgm says:
Blogger Yglesias has another take on this. I was impressed that the only people named in the NYTimes article speaking against clinics were Republicans and big business. Maybe they would like the clinics better if they spent their time on frivolous suits against health care reform and voter registration.
April 4, 2010, 5:34 pmOrenWithAnE says:
I think it’s clear that the people of MD do not want the water pollution laws strictly enforced at the cost of jobs (since it would be expensive and raise the relative cost of chicken-farming in MD versus the next-best place). Maybe you read it differently, but that seems the plain conclusion.
The value judgment inherent in the balancing between industry and environment is one of those things where it’s hard to reconcile the sides because neither believes that anyone could legitimately want to (harm the environment/harm an industry that employs many). Both are legitimate ends, irrespective of whether you want to accuse the legislature of being the pocket of (environmental activists/moneyed business interests).
April 4, 2010, 5:51 pmAndy McGill says:
If the law clinics took on the law school, say on reverse discrimination on admissions, the law schools would cut their funding in a heartbeat.
April 4, 2010, 5:54 pmPerseus says:
The debate has raised larger questions about academic freedom at state-financed law schools and the role lawmakers should have over decisions at those schools.
This has absolutely nothing to do with academic freedom, but with legal advocacy (by a glorified trade school) despite the fact that many in the academy are prone to conflate vita contemplativa with vita activa.
April 4, 2010, 6:10 pmJay says:
Most of these comments seem to be talking past each other. No one (well, maybe one comment) on the pro-clinic side is suggesting that it’s somehow unconstitutional to defund them. So giving an entirely process-based answer like “people have the right to petition their legislators, or do you hate democracy?” isn’t really all that relevant. The question is whether or not the reasons legislatures are considering these measures are good ones, not who can come up with the best cynical one-liner about how the system is all corrupt anyway so who cares.
April 4, 2010, 6:20 pmInstapundit » Blog Archive » LAW SCHOOL LEGAL CLINICS under siege…. says:
[...] LAW SCHOOL LEGAL CLINICS under siege. [...]
April 4, 2010, 6:22 pmAdam B. says:
This argument reminds me of Bd of Ed v. Pico, in a way. It’s one thing for a legislature to choose as an initial question not to fund legal aid clinics at all. It’s another things to start selectively removing funding based on the content of the legal work being done.
April 4, 2010, 6:23 pmic says:
counterproductive to states’ interests
Yet we still live under the illusion that we are a nation of “free” people, that the states serve the people, the states’ interests are the people’s interests.
Unfortunately, reality bites. The people who believe themselves to be free are to serve the states’ interests which so-happens coincide with the politicians’ interests for perpetual power which coincides with corporations’ interests …
April 4, 2010, 6:58 pmAntimedia says:
Thanks for the best laugh of my day.
Who decides to file a complaint about a frivolous lawsuit? Lawyers do. Who decides if a suit is really frivolous? A judge, who is also a lawyer. And unless that judge is particularly ethical, he or she is going to be loathe to decide against one of his fellow members of the bar.
The legal profession is the best racket in the world. Even if someone disagrees with you or thinks you’ve broken the law or violated ethics, they get to take their complaint to your home court, try it in front of your friends and hope some of them are ethical enough to consider your case fairly.
It’s somewhat akin to the fox guarding the chickencoop.
April 4, 2010, 7:05 pmic says:
state-financed schools
Wonder where the state gets its money to finance the schools. Wonder further when have the taxpayers become sheeples too timid to defy the state and the politicians’ puppeteers.
April 4, 2010, 7:07 pmbitterness says:
somebody didn’t get in to law school.
April 4, 2010, 7:10 pmneurodoc says:
But you would say nothing if you or a competent court thought the lawsuit was other than “frivolous”? Or is it unimaginable that any lawsuit filed against the Perdue types would have merit?
To hear the tort reform crowd talk, one would think that plaintiff med mal attorneys file one “frivolous” lawsuit after another hoping to eventually jackpot when they get a sufficiently credulous jury. In their eyes there is a huge amount of frivolity out there, and if there are meritorious cases filed, they must be few and far between. Different dynamics where these legal clinics operating with public funds are concerned, and those different dynamics may be very consequential, but I’m inclined to skepticism when I hear the “F” word used freely with regard to lawsuits.
Speaking of the Perdue family, they are the same people with so much political clout in Arkansas too and one of Bill Clinton’s big backers? I can’t imagine that the political fix would be in for them.
April 4, 2010, 7:10 pmVinny B. says:
I think it is pretty obvious that Republicans are tryinh to destroy law clinics because they want to protect their cronies that rpae, pillage, and steal from America in the name of capitalism. Thanks to Bush, corporations think they can just bully anyone that gets in their way. Those days are over thanks to Obama, who was done wonders in bringing America to where is shoyld be, a more socially equal state that provides social safety nets for its most vulnerable citizens, such as gays, minorities, and women, those that are usually the biggest victim of corporations like Perdue that pay slave wages and force people to go on Medicaid while their board of directors are paying themselves millions in bonuses.
April 4, 2010, 7:13 pmArthur Kirkland says:
In all the commotion concerning health care reform, I must have missed Pres. Obama’s eradication of televangelism and faith-healers. A belated bravo!
April 4, 2010, 7:15 pmAntimedia says:
The legislature is entitled to force us all the wear seatbelts, quit smoking and a host of other activities, but that doesn’t mean they should.
It cuts both ways.
April 4, 2010, 7:23 pmL says:
Screw ‘em. Law school legal clinics are nothing more than little Marxist indoctrination centers that cater to the egos of warmed over hippies and rich princes and princesses who will soon be arrogant spoiled lawyers.
I worked in one for two summers. EVERY single case they took had some leftist-marxist angle. I tried to get my clinic to represent small start-ups in San Jose, CA fighting ridiculous zoning and licensing requirements…or to help defend small businesses against California’s INSANE disability “accommodation” rules that wreaked havoc on the state’s SBs in the late 90s.
Fugheddaboudit. All the clinic would let us take were cases that helped the homeless remain homeless by arguing for their “constitutional right” to be homeless. Yeah, that helped. Let’s help a bunch of upper class white kids fell better about themselves by letting them further empower the homeless to remain homeless.
Oh, capital idea Biff.
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April 4, 2010, 7:28 pmAntimedia says:
somebody thinks they’re a comedian.
April 4, 2010, 7:28 pmAntimedia says:
No, it’s obvious you are an idiot. Maryland is dominated by Democrats. The Perdue family wouldn’t have a chance in hell of defunding clinics if they asked the Republicans to do it.
Almost all politicians are corrupt. The sooner you learn that, the more your fantasies will merge with reality.
April 4, 2010, 7:31 pmrpt says:
zoning + licensing + handicapped access= Marxists! Wait until an unlicensed contractor builds a convenience store next to your house!
April 4, 2010, 7:46 pmPaul A'Barge says:
Shut them down. Now!
April 4, 2010, 7:50 pmCalderon says:
One of the dangers of Yglesias’ efforts at being a polymath are that we often misses basic facts regarding the systems he’s talking about. This quote is an excellent example:
Would anyone who actually litigates cases for a living say something like this? It ignores contingency fees, class actions, fee shifting statutes, etc. While I represent large corporations and like to think I’m a pretty good lawyer, I go up against plenty of counsel who have been very successful at representing normal people.
April 4, 2010, 7:55 pmMondo says:
I would think that instead of law clinics, it would be cheaper for the universities to purchase four or five ambulances and set them in motion somewhere on campus.
It would be cheaper for the state and the law graduates more physically fit. Other than that, the end result would be much the same.
April 4, 2010, 7:59 pmMike McDougal says:
Fraud: for fun and profit.
April 4, 2010, 8:09 pmBrian says:
Lawyers are much like members of the media inasmuch as they imagine that they are engaged in some sacrosanct activity and are thus are properly free from public scrutiny, even when the government is footing the bill. If you’re righteous for your cause, than pay for it yourself; don’t use government coercion to extort public funding from those who disagree.
April 4, 2010, 8:14 pmSnowguy says:
Calderon, exactly right.
April 4, 2010, 8:22 pmRandy says:
Andy:” The reality is that “small farmers” are threatened far more by the likes of Perdue than by law school clinics.”
See the doc “Food, Inc.” and you’ll agree with this statement.
April 4, 2010, 8:47 pmDavid M. Nieporent says:
It is somewhat similar to the Pico case, but of course there was no majority opinion in that case, and notwithstanding Brennan’s efforts, the court failed to hold that the first amendment actually prohibited said selected removal.
April 4, 2010, 8:47 pmSpitzer says:
Who pays the piper calls the tune, right? Clinics too often act as if they don’t have any real clients (pro bono clients are typically much more pliable than those who are paying full freight). But in fact they do have a client – the government (where the public is paying for the clinic) – and why should anyone be surprised if, once in a while, the client makes demands on his or her counsel? Lesson to law students: get used to it.
April 4, 2010, 9:08 pmElliot says:
If law students need to practice in court, let them fund it out of their own pockets. Or perhaps the law firms that will benefit from their hands on experience can fund it. I don’t care if they get the experience.
April 4, 2010, 9:09 pmBenP says:
So you’re saying law schools shouldn’t be teaching students how to be lawyers?
April 4, 2010, 9:11 pmMark Field says:
I’d certainly say it. While there are some exceptions that you’ve noted and I agree with, I think the overall statement is quite accurate.
April 4, 2010, 9:20 pmsardonic_sob says:
I note, merely because I am feeling bleaker and more cynical than usual, that this is only correct if you meant to say “legal, ethical recourse.”
And even then, there are ways. For instance, you could always get a judgment and assign the judgment to a collection agency. They will be happy to hound the entity/person until Judgment Day.
If they try to E&E, you contact somebody like the Rocky Balboa Debt Enforcement Agency:
“Look, Bob, if ya wanna dance, ya gotta pay the band — If ya commit torts, ya gotta pay the man… Me, I ain’t emotionally involved.”
April 4, 2010, 9:23 pmbyomtov says:
I tried to get my clinic to represent small start-ups in San Jose, CA fighting ridiculous zoning and licensing requirements…or to help defend small businesses against California’s INSANE disability “accommodation” rules that wreaked havoc on the state’s SBs in the late 90s.
This is undoubtedly part of the reason that CA is a terrible place for startups.
April 4, 2010, 9:32 pmAntimedia says:
I doubt law students funding out of their own pockets is practical. Perhaps the model the medical profession uses would be practical? Law students could intern at law firms. Of course this would require the law firms be willing to pay the interns and the cases they work on. I’m not sure how practical that is either.
April 4, 2010, 9:35 pmFat Man says:
Drain the Swamps. No public funding for law schools. Lawyers do quite enough damage without governmental subsidies.
April 4, 2010, 9:39 pmAntimedia says:
While his suggestion is not practical, there are some reforms that would help. You could start with having the plaintiff’s lawyers, in contingency cases, pay the defendant’s fees if they lose in court. That would motivate tort lawyers to pay much closer attention to the facts of a case before taking it on. As it is now, there is no disincentive to take a case, no matter how worthless it might be. In fact, there’s a strong incentive to take on any case, because plaintiffs will often settle out of court simply to make the case go away before they incur hefty lawyer’s fees, even though they feel certain they could win in court.
April 4, 2010, 9:44 pmCornellian says:
You could start with having the plaintiff’s lawyers, in contingency cases, pay the defendant’s fees if they lose in court.
That is the rule in the rest of the common law world outside the United States except that it’s the plaintiff who is liable for those fees, not the plaintiff’s lawyer. I don’t see how making the plaintiff’s lawyer liable could work in practice. A lawyer is required to follow his client’s instructions (within certain limits). If the plaintiff has a plausible, but less than 50/50 case to present (say about 35 to 40% chance of success), wants to proceed with it and instructs his lawyer to do so, that would put the client’s interests in conflict with the lawyer’s interest in avoiding liability.
April 4, 2010, 10:06 pmMike Friedman says:
There is an issue of basic fairness.
Perdue is a taxpayer. It is helping to fund the litigation against itself.
The law school clinic is helped by law professors who are hopefully among the best lawyers in the country and is willing to put a high level of resources into the case because it is a learning exercise. Perdue, meanwhile, must pay for its own defense.
There is also a question of ideological bias – when is the last time you heard of a clinic taking the right wing position on any case of political significance?
If law school clinics are going to get involved in lawsuits against private parties it seems that there needs to be a way to compensate the other side for being opposed by a state funded adversary in what is a private dispute.
If law school clinics are going to sue the government then there should be a process for ensuring ideological balance in the suits they bring.
April 4, 2010, 10:16 pmtamerlane says:
Cornellian:
I think the operative words in Antimedia Says remark are “in contingency cases”. In these cases the reality uynderlying the legal fiction is usually that it is the lawyers who are in fact calling the shots.
April 4, 2010, 10:17 pmCalderon says:
One of the exceptions was contingency fees, which applies to most cases that are brought on behalf of “normal people.” As for the rest, I guess we’ll have to disagree. I think Yglesias’ statement is wrong for many reasons, and sounds like the standard progressive / leftist talking point rather than reflecting reality.
April 4, 2010, 10:17 pmDon Meaker says:
Remember, John Edwards made a career out of frivolous lawsuits. If a shyster wins one in 20 cases a year, but that one makes him millions, he has done well for the year.
April 4, 2010, 10:29 pmbyomtov says:
As it is now, there is no disincentive to take a case, no matter how worthless it might be.
You might want to think about that statement some more.
April 4, 2010, 10:30 pmAntimedia says:
OK. I’ve thought about it. Care to articulate your point?
And please don’t try to make hay out of my use of the word worthless. I was referring, as should have been obvious, to the merits of the case, not its utility in lining a lawyer’s pockets.
April 4, 2010, 10:37 pmDavid M. Nieporent says:
Nonsense. In class action cases, yes, but in ordinary contingency cases? No.
April 4, 2010, 10:38 pmConnecticut lawyer says:
There is no doubt that a lot of law school clinic casesare politically inspired. If clinics also took cases representing small businessmen in tax cases against the IRS and small landlords against rent controlled tenants, there would be a lot fewer complaints.
April 4, 2010, 10:46 pmJeff Hall says:
Gee, how lucky that the nation’s small farmers have Mr. Weber and the legal community to tell them how to turn a profit. One hopes that their gratitude is not embarrassingly effusive.
April 4, 2010, 10:48 pmJay says:
There must be an epidemic of judges never making any decisions at all, then. How could they, when any ruling might adversely affect fellow members of the bar?
April 4, 2010, 11:01 pmKurmudge says:
I dunno. I remember when the LSC was put in place to provide assistance for poor people so they could protect themselves against abusive landlords and wife-beating husbands. And instead, we got a raft of nonsensical “public interest” (sic) and “economic justice” (sic) class-action suits whose effects are to put state employers out of business. Seems to me that the funds for those suits should come from some party other than the taxpayers. Even if the company “behaves badly”. If there is one thing we already have enough of it is idealistic young lawyers who have never worked anyplace where they have to meet a payroll.
April 4, 2010, 11:06 pmMark Field says:
You’re right about contingency fees, but there are lots of other suits people need to bring: condominium cases; most small business contract and business tort disputes (these are the people I mostly represent); landlord/tenant; wrongful termination (damages aren’t worth a contingency fee in many cases); and many others.
April 4, 2010, 11:08 pmElliot says:
No. I didn’t say that. I said if law students want hands on experience, they can pay for it themselves. I don’t care if it is associated with a law school. As lomg as students fund it themselves, it can be associated with anything they want. That’s their own business.
Sounds like an excellent idea.
April 4, 2010, 11:08 pmJay says:
My law school had a prosecution clinic, where students worked at the county DA’s office and prosecuted misdemeanors in court. One obvious reason relatively few clinics represent “right-wing” causes, though, is that major corporations have the money to hire big law firms, and are unlikely to rely on law students for their defense.
April 4, 2010, 11:09 pmI’m actually a little curious about how this clinic in MD is suing Perdue, anyway — if it was an appellate or SC clinic, I could see the brief writing and research tasks being discrete enough to do in one year. But initiating this kind of lawsuit would likely require over a year of discovery before dispositive motions are even filed. Are they going to have the students drafting interrogatories and reviewing documents for that whole time? If I had to guess, there’s a law firm that’s going to be doing the heavy lifting, while they get a little free help from the students around the edges.
Jay says:
They pay tuition to be students. Clinics are classes the get to enroll in as part of being students. What are you talking about?
April 4, 2010, 11:12 pmAntimedia says:
What fantasy land do you live in? When a lawyer takes a contingency case, he or she takes it knowing full well that the client will pay nothing. That means the lawyer is on the hook for all court costs and fees as well as the time of his or her employees, office supply expenses, discovery expenses, court reporters, etc., etc. If you think the lawyer is going to tilt at windmills at great personal expense yet defer to the client’s every whim, you don’t know much about human nature.
Any lawyer who isn’t stupidly altruistic, or just plain dumb, is going to weigh the costs against the expected outcome, not just at the start of the case but throughout its progress. And when the presumed settlement amount becomes threatened by rising costs, the client is going to be strongly advised to settle.
OTOH, if the client is willing and able to pay, the lawyer will tilt at windmills until the defendant either relents or the case is won or lost.
April 4, 2010, 11:14 pmBrian G. says:
If clinics also took cases representing small businessmen in tax cases against the IRS and small landlords against rent controlled tenants, there would be a lot fewer complaints.
I was in tax clinic in law school and we were permitted to represent people before the IRS. Guess who funded it? That’s right, the IRS.
April 4, 2010, 11:16 pmJay says:
In response to your first point, basically all of the cases we’re focusing on could be brought by the government itself against these companies, if the AG’s office wanted to do so. So if a state chooses to allow its law schools to have clinics like these, it seems to me it’s made a choice to use the clinic to expand its enforcement capacity. Of course, as I said earlier, I agree that states are entitled to defund clinics if they want. But if they decide not to, I don’t think it raises “basic fairness” questions anymore than if the state AG or EPA sues you for dumping chicken poop in the river.
(Also, I wonder if any of the bold defenders of capitalism here are aware of the concept of externalities — for example, when you pump out pollution, you impose costs on a lot of other people, but often so diffusely that no one in particular has an incentive to sue you. Even those who don’t spend their free time singing The Internationale may support regulatory or other specialized legal mechanisms (e.g., funding clinics) for addressing such issues.)
April 4, 2010, 11:23 pmMike McDougal says:
Through tuition perhaps?
April 4, 2010, 11:24 pmMike McDougal says:
That’s perfectly fine with me. Higher entry barriers tend to increase fees and profits.
April 4, 2010, 11:28 pmCornellian says:
There is an issue of basic fairness.
Perdue is a taxpayer. It is helping to fund the litigation against itself.
You could say the same thing about an EPA action against them for dumping toxic waste into the local reservoir or, for that matter, a criminal proceeding against them for securities fraud. Why should one’s mere status as a taxpayer confer immunity to a legal proceeding of any kind?
There is also a question of ideological bias — when is the last time you heard of a clinic taking the right wing position on any case of political significance?
I imagine they take quite a few First Amendment cases and the “right wing” presumably isn’t hostile to all of those. I wouldn’t object to them taking more property rights, Second Amendment and federalism cases on behalf of small businesses and non-wealthy corporations.
Heck if the clinic takes plaintiffs in discrimination cases, I’d have no problem with them also helping to defend small businesses from such lawsuits, but then I think legal clinics are actually there to help students learn how the law works in practice, not to advance a particular political agenda.
Going slightly off topic, but I’d also like to see a legal clinic set up (ideally in California) to help startups with the range of legal issues that they typically face, not just defending the occasional lawsuit. That would be great experience for the students, useful for the businesses and could give the students real credibility in the job market, not to mention possibly some useful connections for the future.
April 4, 2010, 11:30 pmCornellian says:
Drain the Swamps. No public funding for law schools.
I already have my law degree and I got it from a private law school. Like Mr. McDougal, I’d be quite happy, from a purely self-interested point of view, to see further entry into the profession restricted to those who can afford private law school tuition.
April 4, 2010, 11:32 pmbyomtov says:
Mike Friedman,
There is an issue of basic fairness.
Perdue is a taxpayer. It is helping to fund the litigation against itself.
This is true of any taxpayer who faces litigation, or criminal prosecution, by the state. It doesn’t matter whether it’s done by the clinic or the AG or some state agency.
Antimedia,
Worthless cases don’t generate a lot of contingency fees. Yes, I know. Everyone settles, etc. Still, there are costs, and actually, I’m not so certain that everyone always settles. (I say this as someone who has settled what I deemed to be a worthless lawsuit, but not for very much).
April 4, 2010, 11:33 pmAntimedia says:
Majoring in sophistry, are we?
I was referring to the specific instance of the sanctioning of lawyers for having brought frivolous lawsuits (as I’m sure you understood because you can clearly read and write.) Of course every lawsuit is going to have a winning lawyer or lawyers and losing lawyer or lawyers. But the likelihood of a lawyer being sanctioned for bringing a frivolous lawsuit is exceedingly low. Judges are members of the bar as well and have a built-in bias toward their fellow litigators. It’s a clear conflict of interest that the legal profession doesn’t willingly acknowledge. Rule 11 of the Federal Civil Procedures is clearly tilted in favor of plaintiffs’ attorneys and increases the likelihood that they can abuse the system without fear of sanction; judges have discretion to refuse to sanction, no matter how egregious the abuse, lawyers are protected from paying the defendants’ fees, and lawyers can file hundreds of lawsuits purely to harass a defendant and then withdraw the complaints within 21 days with impunity.
April 4, 2010, 11:36 pmElliot says:
They do pay tuition. But at state schools that may not cover all the expenses. But, we have lots of law professors here. Perhaps they can tell us what percentage of the total law school budget plus the total budget of the clinics is covered by tuition.
If students want hands-on experience, let them do it without state funding.
The following are from the article linked in by the OP.
“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.”
“In Louisiana, the Legislature is considering a bill forbidding law students at clinics that receive any public money from suing government agencies, companies or individuals for damages unless exempted by the Legislature.”
“And after students at a state-financed law school clinic at Rutgers University in New Jersey sued to stop a developer’s plans for a strip mal…”
April 4, 2010, 11:55 pmJay says:
It’s not sophistry to respond to what you actually said. You say the same incoherent thing again in your response — if judges “have a built in bias toward their fellow litigators,” how do they decide which litigator to favor, the one doing frivolous stuff or the one seeking sanctions? You assume it’s the former without explaining why that would be. In my experience, most judges were fairly successful lawyers before they took the bench, so they don’t tend to have a huge amount of patience for attorneys who file bottom of the barrel junk in court.
I actually agree with you to some extent; there is lots of lawyer behavior that should be punished more harshly. I tend to think most of it is not concerned with the content of complaints, though. Anyway, I’m curious what your definition of “frivolous” is. Is an answer frivolous if it responds with the word “denied” to some allegations that later turn out to be true?
April 5, 2010, 12:35 amMatrix Architect says:
Kelo ring any bells?
April 5, 2010, 12:50 amJeff Dege says:
Ruling for one side or the other benefits the clients, not the lawyers. Allowing things to drag on for months or years without a decision is what benefits the lawyers – who are, after all, billing by the hour.
April 5, 2010, 12:54 ampmorem says:
The headline could read “Group takes money from politicians, surprised when politics gets involved in group”.
Is this story really a surprise to anyone?
The punchline goes:
“You already answered that. Now we’re just haggling over the price.”
Everything after taking the first money is about the scope of on-going services.
April 5, 2010, 4:09 amBenP says:
So what you’re really asking for is for Law Schools to engage in accounting shenanigans so that the clinic is funded solely from tuition and all the government aid the school gets (and they all get something) goes to other things?
April 5, 2010, 8:13 amBenP says:
Just for frame of reference, if the clinic I worked in in law school encountered clients that had a reasonable chance of getting a contingency fee or a fee award, the case was handed off to the local plaintiffs bar.
My law school operated 4 clinics. Criminal Prosecution, Bankruptcy, Transactional and Civil. There was also a juvenile defense that operated intermittently.
Civil handled mostly family and probate law (adoptions, divorces, probates etc) and only took indigent clients (we had the same standards as the Court for IFP filings).
Bankruptcy took same clients but filed Individual Chapter 7′s.
Transactional accepted local non-profits and did corporate type work for them,
Criminal Prosecution associated with the local prosecutor and students worked prosecuting misdemeanors. (traffic ticks, DUI’s, Drugs at the top end).
I know representing poor people is apparently all “crazy left wing stuff,” but from my time in school I think clinics are probably the single most valuable thing a law school could do for any of their students that are actually going to practice law. (as opposed to say, reviewing documents for 3 years).
April 5, 2010, 8:28 amJanis Margulis says:
Since when is it frivolous to review the science and then sue a company who is probably polluting the environment? When is it appropriate to ask the corporate infrastructure to be responsible stewards of the earth? As to the suit against Perdue, water flowing off the farm near Berlin, Md., carries high levels of bacteria, as well as pollutants blamed for the Chesapeake’s “dead zones.” Environmentalists said they think the farm’s owners store chicken manure in large outdoor piles near ditches, where it is likely to run off with the rain.
Would you want to live near that?
Right now, in western Palm Beach County in an area called “The Acreage,” a cancer cluster has been discovered, probably as a result of run-off by Big Sugar. When do we take them to task for the damage they’ve done? hm?
April 5, 2010, 8:45 amSome Guy says:
Most schools are publicly funded. Shouldn’t the taxpayers have at least some say in how their money is used by “progressive” legal thinkers?
April 5, 2010, 9:27 amOrenWithAnE says:
Janis, the balance between economic output and environmental protection is one for the legislature alone. They are not pleased that the school has upset the balance they have created.
April 5, 2010, 9:36 amShelbyC says:
Wow. You really really want him to be saying more than he is saying, don’t you?
April 5, 2010, 9:52 ambyomtov says:
Janis, the balance between economic output and environmental protection is one for the legislature alone. They are not pleased that the school has upset the balance they have created.
Environmental protection is an economic activity. “Economic output” that pollutes the water imposes a cost that, in any reasonable economic system, the polluter should be accountable for. Dumping crap in the river is fundamentally no different than dumping it in someone else’s back yard.
Besides, aren’t the students suing to enforce the rules the legislature made? What they are upset about is that Perdue doesn’t like that balance.
April 5, 2010, 9:59 amShelbyC says:
That’s not the point. There sure wouldn’t be anything wrong with Purdue asking Congress to look into an EPA action, is there?
April 5, 2010, 10:05 amBen P says:
I would say that I’m pointing out problems in his ill-considered statements.
When you say
You are necessarily saying either
1. Law schools shouldn’t provide students the opportunity to “practice in court” as part of a legal education.
OR
2. The school should only direct “tuition funds” to the clinic. Since it’s a fact that every law school out there is receiving some form of government aid, merely funding the clinic budget out of tuition dollars rather than federal dollars just means designations on money out of the general fund or that whatever “public dollars” are available are freed up for other projects. The same is true for private donations to the law school. Any funds going directly to a clinic sets up case conflict problems.
Since it’s a condition of the Student Attorney Rules that they cannot charge for their services, you really can’t avoid it being one or the other.
April 5, 2010, 10:07 amKen Arromdee says:
How can this not lead to a conflict of interest?
April 5, 2010, 10:18 amCalderon says:
Let’s be clear about the suit against Perdue, at least as it is described in the NYT article. The clinic is NOT claiming that Perdue dumped pollution into the river. The clinic is alleging that two chicken farmers dumped pollution into the river. These chicken farmers have contracts with Perdue specifying to some greater or lesser extent how the chickens should be handled, and the clinic claims that because of those contracts Perdue should be liable for the polluting of the farmers.
Now maybe the Maryland statute is very broad, etc., but this seems like an awfully aggressive interpretation of the environmental laws to me, and quite likely outside the scope of the “rules the legislature made.” One generally bedrock principle of American law is that one corporation is not liable for the violations of another, just like one person isn’t liable for the violations of another. This is especially true where the companies are not affiliated, i.e., not under common ownership. Moreover, the provisions in the contracts between the farms and Perdue are about “the food and medicine the chickens get, as well as the size and location of the bird houses,” which appear to be separate from any enivironmental pollution caused by the farmers.
I’m curious if any environmental lawyers (or other knowledgeable attorneys) are still reading the thread, and if they know of any cases where one corporation has been held vicariously liable for the environmental liabilities of an un-affiliated corporation based on a contractual relationship.
April 5, 2010, 10:42 amJust Dropping By says:
You have to remember that, in the opinion of at least a plurality of VC commenters, literally (and, yes, having read VC for several years now, I really do mean “literally,” it’s not just an intensifier) any lawsuit filed against against a corporation is frivolous per se, regardless of whether the preponderance of the evidence would establish that all the elements of a legally recognizable claim were met, because in the commenters’ views the legally recognizable claim itself should not exist.
April 5, 2010, 10:47 amNate says:
OK I can’t read 100 more comments so I’m not sure if this has been said, but it’s worth pointing out that the Maryland’s law school’s biggest strength is arguably its environmental law program, which was top 10 the last time I checked. I think that yes, perhaps this type of litigation is excellent training for aspiring environmental lawyers.
April 5, 2010, 11:06 amOrenWithAnE says:
Just Dropping By, I assure you that I think the lawsuit is meritorious. As I’ve explained upthread, I don’t see why that’s relevant to the legislature’s plenary power of the purse.
[ The legislature was obviously banking on passing the law but having it enforced half-assed. There's nothing more vexing to them when you insist on taking their words at face value instead of in the agreed-upon way. Specifically, no MD administration (Dem or GOP) has ever enforced the water-quality laws particularly rigorously. ]
April 5, 2010, 11:25 amOrenWithAnE says:
And the relative value of X amount of pollution for Y amount of output is a matter for the legislature. Surely you don’t believe we should shut down every industry that pollutes entirely. There is a balance between imposing high costs and accepting environmental degradation or else no one would drive cars or operate a water heater in their basement.
My point is that the exact parameters of the balance are a political matter.
Yes, but the legislature does not want them enforced particularly vigorously.
April 5, 2010, 11:29 amShelbyC says:
Isn’t that what he’s saying? And that sounds like a perfectly reasonable proposition; there certainly is an arguement against students running around suing people with state money for class projects and the like.
April 5, 2010, 11:29 amJust Dropping By says:
I did say “at least a plurality of commenters,” not “all commenters.”
April 5, 2010, 11:31 amyankee says:
Is there any evidence of that? All we know is that the legislature doesn’t want them enforced against Perdue, because Perdue has a lot of money to throw around to influence the Maryland legislature.
April 5, 2010, 11:40 ambyomtov says:
OrenWithAnE,
And the relative value of X amount of pollution for Y amount of output is a matter for the legislature….
….My point is that the exact parameters of the balance are a political matter…
….but the legislature does not want them enforced particularly vigorously.
Then shouldn’t the legislature modify the laws, instead of just trying to stop enforcement on the rich and powerful?
April 5, 2010, 11:43 amShelbyC says:
There’s no evidence that they’re only trying to defund suits against the right and powerful, is there? And there’s nothing wrong with saying that the rules are fine the way they are, but we don’t want to fund a bunch of law students trying to enforce them, is there? They’re already funding a more politically accountable body to enforce the rules, right?
April 5, 2010, 11:49 amAdam J says:
OrenWithAnE says:
Janis, the balance between economic output and environmental protection is one for the legislature alone. They are not pleased that the school has upset the balance they have created.
The legislature already determined the “balance between economic output and environmental protection”- and now the law clinic is now accusing Purdue of violating that balance. Where’s the beef?
It sounds to me simply Purdue decided its opponent is
April 5, 2010, 11:57 amvulnerable to a little political arm-twisting… a sport it happens to be very good at. The only reason why any legislator might be upset now is because Purdue is implicitly threatening to shake up how their “election contributions” will be doled out. Should public law school clinics only pick cases where they’re not going to target someone who’s politically powerful?
Tatil says:
Would your opinion change if the eggs and the hatched chickens were owned by Perdue in addition to extensive specifications about how the eggs and chickens are supposed to be handled including the details of the barn such the air circulation systems? It is quite arguable that the farmers are practically employees of the company. There are many situations where it does not matter whether the company calls somebody a contractor or employee. This might be one of those.
Besides, if it is such an outlandish claim under Maryland laws Perdue can easily win the case.
April 5, 2010, 12:07 pmOrenWithAnE says:
Shouldn’t the legislature raise the speed limit on the beltway to 65 instead of just having cops not write tickets for 10 over? Shouldn’t the legislature decriminalize marijuana instead of having cops chuck the bag and give the kids a scolding? Shouldn’t the legislature repeal the open alcohol law instead of having cops ignore drinks concealed in a brown bag?
I’m absolutely in favor of all these things!
April 5, 2010, 12:13 pmCalderon says:
Tatil said:
Would your opinion change if the eggs and the hatched chickens were owned by Perdue in addition to extensive specifications about how the eggs and chickens are supposed to be handled including the details of the barn such the air circulation systems?
Probably not, though again I haven’t looked at the Maryland statute on which the clinic relies. Even if Perdue became the owner of the chickens immediately upon birth (which I’d guess is unlikely under the contract, but who knows), it wouldn’t be an owner or operator of the farms. If a supplier to the farmers does not transfer ownership of the equipment until after the equipment is already on the farm, should it be held liable for the farmers’ alleged pollution?
It is quite arguable that the farmers are practically employees of the company. There are many situations where it does not matter whether the company calls somebody a contractor or employee. This might be one of those.
From the NYT article, there’s no basis I see for arguing that the farmers are effectively employees of Perdue. Al lthe NYT says is that Perdue governs “the food and medicine the chickens get, as well as the size and location of the bird houses.” Establishing a handful of quality control requirements (like medicine and food) is present in virtually all purchaser-supplier agreements. That doesn’t make purchasers vicariously liable for whatever their suppliers do.
Besides, if it is such an outlandish claim under Maryland laws Perdue can easily win the case.
Well, that’s a position, but it’s an invitation to frivolous litigation. Even if Perdue gets out on a motion to dismiss, it’s likely on the hook for tens or hundreds of thousands of legal fees, wasted time talking to its attorneys, and so forth. If the case goes on to summary judgment, those costs can increase dramatically. Moreover, the problem here is that private litigants (and to some extent even government litigants) have incentives not to file frivolous litigation. These incentives are either lessened or non-existent for a clinic.
April 5, 2010, 12:24 pmOrenWithAnE says:
Ok, I’ll try to be less snarky.
It’s routine that legislatures routinely pass laws that they know and prefer will not be enforced to the letter. No one expect the police to ticket everyone that does not come to a full and complete stop at every stop stop sign, least of which the drafters of the law. The natural give and take between the law and its enforcement is part of the strength of the common law system of executive discretion. It allows the law to have some depth and play in the joint.
By the way, I’m open to the charge (Yankee makes) that the State has abused the discretion in a non-equitable fashion by pursuing vigorous enforcement of the water pollution laws against some parties but allowing Perdue to slide. This is not in evidence, as far as I’ve read — it seems that they are lax about it all around. If such a charge were made, I would be very sympathetic (and well aware that executive discretion can lead to highly inequitable outcomes if not checked).
April 5, 2010, 12:54 pmOrenWithAnE says:
As a legal matter, it’s a question of fact whether Perdue’s control was sufficient to make it a constructive owner. It’s well settled in American tort law that you cannot escape liability by transferring only title to another party if you are still in control of the decision-making process.
[ I don't know the answer to the factual question of whether Perdue was involved enough to make them liable. ]
April 5, 2010, 12:56 pmPintler says:
For an analogous situation, I would hate to be held liable if an organic farmer who supplies my subscription farmed produce were to commit a tort.
April 5, 2010, 12:58 pmbyomtov says:
OrenWithAnE,
Shouldn’t the legislature raise the speed limit on the beltway to 65 instead of just having cops not write tickets for 10 over? Shouldn’t the legislature decriminalize marijuana instead of having cops chuck the bag and give the kids a scolding? Shouldn’t the legislature repeal the open alcohol law instead of having cops ignore drinks concealed in a brown bag?
Are these decsions made by the legislature or the cop in question?
Should the cops only let people driving expensive cars exceed the speed limit?
And for all these, one big difference is that the offenses described are not necessarily doing any harm. If you actually cause a wreck while exceeding the limit I think you will get a ticket. Similarly, with pollution there is actual harm.
Suppose Perdue dumped a load of trash in your yard. How do you feel about that being ignored?
April 5, 2010, 1:02 pmAdam J says:
Calderon- “Moreover, the problem here is that private litigants (and to some extent even government litigants) have incentives not to file frivolous litigation. These incentives are either lessened or non-existent for a clinic.” That’s just silly. Clinics have every incentive to bring winning lawsuits. If the clinic doesn’t bring wins, it’s not going to bring the school prestige, which is what a law school really strives for. A clinic that keeps losing is one asking to get axed by administration. Plus, clinics don’t have any perverse financial incentives to bring weak cases involving large sums & settle them off for cash. I’m sure ideological motivations of teachers and students have substantial influence in picking cases, but clinics definitely heavily consider legal merit before picking big cases.
April 5, 2010, 1:07 pmCalderon says:
OrenWithAnE said:
As a legal matter, it’s a question of fact whether Perdue’s control was sufficient to make it a constructive owner. It’s well settled in American tort law that you cannot escape liability by transferring only title to another party if you are still in control of the decision-making process.
Except as a legal matter, every question of fact becomes a question of law if the party does not produce sufficient evidence to meet the standard of the question of fact. Environmental laws typically impose liability on owners and operators. The facts in the NYT would not seem to satisfy either standard. Nor does anything in the NYT article suggest Perdue so dominated the farms as to make the farms its alter ego.
Now, of course, reporters often mess up reporting on legal issues, and maybe the clinic has other facts. Or maybe Maryland has enviro laws that are particularly broad in imposing liability. But unless one of those is true, this suit seems like a stretch to me.
April 5, 2010, 1:11 pmBen P says:
Except his response was
I think it’s also important to note that these Clinics aren’t just going off and suing people under their own names. Like all lawyers, they have clients. In particular these are non-paying clients because the rules on being a student attorney forbid the students from collecting any money for their work.
Further, the way you’re saying “running around with state money suing people for class projects and the like” really makes me think you’re misunderstanding how clinics work.
In nearly all cases I’ve seen (and the article implies the same here) the Clinics operate nearly independently from the law school.
Most state Bar rules provide for some sort of “student admission” (usually it’s “Rule 15″). Where students can be provisionally admitted and practice as lawyers “under the supervision of a practicing attorney.”)
The clinics are typically run more like pre-arranged internships for credit more than anything else. Students apply to the clinic, and once they are working for the clinic they function as attorneys and the clinic as a law firm. The firm takes clients or doesn’t take clients as it sees fit just like any other law firm would. The only exception being that unlike say, legal aid or pro bono work at a firm, which don’t accept fees by choice, the students are legally prohibited from accepting payment. The input of the school is that it provides office space and typically also the “supervising attorney” is also a professor at the school.
The fact that a clinic may accept clients with controversial causes (say innocent project like many schools have, or 1983 cases or in this case envioronmental cases) is somewhat beside the point. In other contexts here people have been awfully quick to say that the fact that a lawyer represents a client doesn’t mean he believe in all of the same things, even when it’s pro bono.
If there’s a backlash, well then there’s a backlash. Private firms have the same concerns about the types of clients they take and it affects their bottom line as well. It’s somewhat unseemly for a defendant to try to undercut the Plaintiffs counsel, but certainly not unprecedented. (Although it’s a more serious case, I’m reminded of a rumored but still unproven scandal here about 20 years ago where the largest (at the time) medical malpractice insurer in the state would inform doctors that they might expect their premiums to go up if they took jobs as experts for plaintiffs against the insurer.)
April 5, 2010, 1:13 pmCalderon says:
I guess this one of those agree to disagree situations, since the clinic at my law school, and from what I’ve heard elsewhere, operated quite differently. Of course, the professors and students wanted to win the case they brought, but they did not face any financial incentives or political incentives regarding the cases they brought. Whether the clinic was succesful or not is irrelevant to the school’s prestige. (Admittedly, my experience and discussions have been concerning clinics at already prestigious schools; maybe clinic performance matters more to overall law school prestige at lower tiers.) Likewise, the clinic was seen primarily as a place for students to get experience while helping the indigent, and so failing to win cases was irrelevant to the clinic’s survival. So long as the clinic had sufficient student enrollment (and what makes a clinic attractive to students has a tenuous correlation with the incentives of private or government litigants), it was not going to get axed.
April 5, 2010, 1:22 pmhilzoy fangirl says:
The entity that pays the bills is not the client. See Model Rules of Professional Conduct 1.8:
In any event, the students are likely not being paid at all.
April 5, 2010, 1:55 pmShelbyC says:
that was his response to an assertion that he thinks law schools shouldn’t teach folks how to be lawyers, which is not that same thing.
Of course, and it’s perfectly natural, and appropriate, for taxpayers to ask their representatives to stop funding lawsuits against them.
April 5, 2010, 2:15 pmOrenWithAnE says:
Again, there is a well settled test in tort that allows us to discern whether your control over that farming is sufficient to render you liable.
They are made by a give-and-take between the legislature, the DA, the cop and the courts. It’s a dynamic process with each party adjusting the parts they control in response to the rest.
For instance, here in my county, the courts will become very upset with police officers that routinely bring trifling cases (loud stereo, tinted windows, minor speeding) to the point where the ADA will start dismissing them and/or the judges will start to get aggravated that the officer continues to waste their time with small matters. In response, officers try to build good cases and write warnings for the rest. The legislature, meanwhile, set a statutory system of ‘points’ in order to better control the sentencing for traffic offenses.
Should the cops be compelled to write a ticket for every car they see over the limit?
You are right, discretion is not optimal. Lack of discretion, I would argue, is more suboptimal yet.
Not your judgment call to make.
True story, I ran a stop sign (the other guy didn’t have one), caused a wreck and got a warning. So much for that theory.
As for ‘actual harm’, that’s again in the eye of the legislature. Certainly raising everyone’s costs and thus decreasing the viability (and thus employment) of the chicken sector in MD would also be ‘actual harm’, right? It’s a balancing test — we cannot make chickens with zero environmental harm for free, pollution control costs money and exactly how much ought to be spent is not amenable to easy calculation.
My yard is my business. The rivers are the State’s business. It would be truly bizarre if you could compel me to enforce my property rights against a dumper.
The State, as the holder of this property (and as evidenced by the Executive’s longstanding lackadaisical attitude towards enforcement) just does not want to pursue the cases that vigorously.
Of course. I make no comment on the sufficiency of the pleading to require a response (versus summary dismissal of Perdue as a defendant).
If I gave the impression otherwise, it was in error.
April 5, 2010, 2:27 pmAdam J says:
Calderon- I certainly can’t speak to all clinics, I’m sure that typical indigent oriented clinics have much lower bars as to what type of case they accept. These clinics are often the last hope for representation- if the clinic doesn’t take the case no one will. Plus those cases typically only involve a student with minimal oversight from a professor- they’re not headline makers & nobody is carefully considering legal merit before taking the case.
However, cases like Perdue are different animals- they involve a substantial outlay of school resources, are high profile and involve many students. Unless the professor is an idiot, they’re picking these cases more carefully. Mind you I’m sure there are some professors that are blinded by ideological reasons when picking cases- however there’s certainly incentives that prevent this from being an extreme problem.
April 5, 2010, 3:33 pmDavid M. Nieporent says:
Even if these factors all play a role — and I don’t believe most of them do — I think they’re outweighed by the fact that if the cases were actually good cases, there would be an incentive for real lawyers to take the cases, and one would assume most clients would prefer actual lawyers to law students. That is, clinics only have the opportunity to take cases worth little money or cases of dubious merit. It’s precisely because they’re not motivated by what you call “perverse financial incentives” (which are, of course, not “perverse” from the point of view of the plaintiffs’ lawyers) that there’s an issue.
April 5, 2010, 3:52 pmyankee says:
I don’t know what the state’s enforcement agents have doing; the clinic is representing a private plaintiff. The clinic, being part of a state law school, receives some of its funding from the government, but it’s not charged with enforcing laws on behalf of the state. It’s charged with representing private parties in actions that will be of pedagogical value to the students. The state legislature had no interest in the clinic until it picked a wealthy and influential defendant.
And as I’ve said above, if you think the legislators are motivated by anything other than a sincere concern for avoiding the wrath of Jim Perdue, then I can get you a great deal on a bridge.
April 5, 2010, 4:04 pmyankee says:
Well, these aren’t the cops, they’re private parties whose counsel receive (some) funding from the government. This is more like the situation where Jim Perdue gets into an auto accident where he causes injury well in excess of his liability policy, gets sued, and goes to the legislature to demand an thorough investigation of every possible ethical or regulatory violation by the plaintiff’s lawyers in order to harass them.
April 5, 2010, 4:12 pmShelbyC says:
Yes, the legislators are politically motivated, as the OP points out. But aren’t decisions about how to spend state resourses (such as the legal clinic’s funds) supposed to be politically motivated? No, political bodies don’t make perfect decisions, which is why many folks support limiting the scope of the decisions they make, but why is the fact that a decision about whether to fund law school clinics is politically motivated a bad or suprising thing? Isn’t it exactly what we expect?
April 5, 2010, 4:13 pmMark Field says:
So you’re saying that the $20 bill on the sidewalk in front of me isn’t really there?
April 5, 2010, 4:14 pmShelbyC says:
Fess up. It’s not, is it?
April 5, 2010, 4:16 pmAdam J says:
David- “Even if these factors all play a role — and I don’t believe most of them do — I think they’re outweighed by the fact that if the cases were actually good cases, there would be an incentive for real lawyers to take the cases, and one would assume most clients would prefer actual lawyers to law students.” Obviously a client would prefer experienced lawyers to students- but the experienced lawyer has to have his own significant financial upside- they’re certainly good cases out there that don’t have enough money to spread around & make the experienced lawyer happy. I don’t know how much plaintiff’s attorneys make as “private AGs” in environmental cases in Maryland.
Also, the “perverse incentive” I’m referring to is simply there’s only a very loose correlation between merit of the claim and its financial value to a plaintiff’s attorney- thus a plaintiff’s attorney may often pick a case primarily on factors other then merit.
April 5, 2010, 4:24 pmMark Field says:
True story: I fed myself during my first 2 weeks in law school with the money I found on the street my first day or so there. And this was in Berkeley, where you’d expect the panhandlers to be on it faster than ants to a picnic.
April 5, 2010, 4:33 pmRich Rostrom says:
This discussion has bogged down in questions of whether the lawsuit against Perdue’s contractors has merit, or whether legal clinics ever perform any useful legal work.
To me the question is more basic: should these clinics, to the extent that they are government-funded, be accountable to the political authorities?
I can’t imagine any reasonable answer other than yes. If there is no effective oversight, then a clinic is free to do whatever its organizers see fit. That could include ignoring the needs of indigent clients in routine civil matters while filing obstructive lawsuits against construction projects, or harassing small local governments with meritless discrimination complaints, or engaging in “lawfare” against a political element the clinic’s leadership dislikes.
If the clinics answer to no one, there is no check on such abuses. A clinic could become the covert legal arm of a political element.
Certainly legislative oversight runs the risk of political influence on a clinic’s operations; but that is a risk with any legislative oversight of any state-funded activity. If the clinic’s operations are properly reported, then at least every one can know what is going on.
A privately funded clinic could be just as destructive, but it would answer to its donors, who would presumably get what they want.
April 5, 2010, 4:38 pmTatil says:
Should legislators also have the ability to fire any professors whose lectures or books they don’t like? Otherwise, profs will say and do anything they desire. Gosh, imagine the horrors if legislators are not a big part of the checks and balances.
April 5, 2010, 4:58 pmShelbyC says:
Well, AFAIK outside of constraints like the limitation on Bills of Attainder they already have that ability, although through the principles of acedemic freedom and tenure they’ve created significant constraints on their ability to exercise that ability. But I don’t think acedemic freedom does or should extend to the use of funds for non-academic activities like lawsuits, just because they have some pedological value, does it?
April 5, 2010, 5:20 pmShelbyC says:
Ahh, college.
April 5, 2010, 5:22 pmElliot says:
“So what you’re really asking for is for Law Schools to engage in accounting shenanigans so that the clinic is funded solely from tuition and all the government aid the school gets (and they all get something) goes to other things”
No. I didn’t say that. I said students should fund the clinics that they use to get hands-on courtroom experience. I see no reason why this would involve accounting shenanigans.
April 5, 2010, 5:43 pmOrenWithAnE says:
A wrath that comes because his enterprise is productive for the People of MD. I mean, you can always paint it as his wrath personally but the folks that might lose their jobs if chicken-raising becomes more expensive in MD won’t see it that way.
April 5, 2010, 7:02 pmbyomtov says:
Shelby,
why is the fact that a decision about whether to fund law school clinics is politically motivated a bad or suprising thing? Isn’t it exactly what we expect?
Just because it’s doesn’t mean it can’t be bad. Politically motivated decisions can be good or bad. The criticism here is that this is a bad one.
Oren,
My yard is my business. The rivers are the State’s business. It would be truly bizarre if you could compel me to enforce my property rights against a dumper.
The State, as the holder of this property (and as evidenced by the Executive’s longstanding lackadaisical attitude towards enforcement) just does not want to pursue the cases that vigorously.
It would be equally bizarre if the state took action to prevent you from asserting your property right because the dumper was rich and powerful.
The property rights in question belong, in one sense, to the people the pollution affects. The legislature has passed laws which enable those people to enforce their rights. Now, suddenly, it wants to make that impossible, in a specific case, by interfering with the legal process they use.
As for ‘actual harm’, that’s again in the eye of the legislature.
And they made a determination. Now they want out because Perdue is yelling. Fine, let them change the law, in public view. Do you really think it’s a good idea for the legislature to say, “Oh gee, we didn’t mean it,” when some big shot squeals.
April 5, 2010, 7:21 pmbyomtov says:
Oren,
A wrath that comes because his enterprise is productive for the People of MD. I mean, you can always paint it as his wrath personally but the folks that might lose their jobs if chicken-raising becomes more expensive in MD won’t see it that way.
Right. Perdue is a saint who cares only about the well being of MD.
By your argument there should be no rules at all about what a business can do. After all, they will always yell about jobs and productive enterprise, and environmental zealotry. Count on it. Every time. Yet it’s simply a mistake – a logical, actual, unquestionable, mistake – to think that the economic argument must be on the side of business. It’s not. Clean water has value. So does clean air. The notion of letting Perdue, or anyone else, use these resources for free because they “are productive” is wrong-headed. Pollution is destructive. Letting waste flow into rivers and Chesapeake Bay destroys value. The economic street is not one way.
April 5, 2010, 7:32 pmShelbyC says:
That doesn’t seem to be the criticism. The OP criticizes the descision simply for being “politically motivated”, and Yankee seems to be arguing on similar lines, that the legislature is trying to protect an influencial constituent.
April 5, 2010, 7:40 pmAntimedia says:
Well, I would have thought that it was obvious.
If you put doctors in charge of sanctioning other doctors for “bad behavior”, then doctors will be likely to at least give their peer the benefit of the doubt, if not lean over backwards to see their side of the issue. It’s human nature.
The same thing is true of judges. Before they sanction a lawyer, they are going to go the extra mile to ensure that the sanctions are “merited”. Or, to put it another way, it’s highly likely that more lawyers would be sanctioned by a panel of ordinary citizens than would be sanctioned by a judge. Again, it’s human nature.
April 5, 2010, 8:16 pmAntimedia says:
I’ll give you a concrete example from personal experience. A female employee was fired for unacceptable behavior. On numerous occasions she verbally confronted customers in front of their customers and caused the store to lose business. After extensive efforts to rehabilitate her, she was fired.
She sued the company, her manager and the division manager for sexual discrimination. Her claim was that she was fired because she was a female. The defendants were able to produce affidavits from 15 customers testifying to her abusive behavior. The plaintiff’s lawyer “settled” for $15,000. The settlement was paid in order to avoid the costs of further discovery as well as a trial they were almost certain to win. The settlement was structured such that the plaintiff’s attorney received compensation for all his expenses plus $10,000 and the plaintiff received the remainder, which amounted to a few thousand dollars.
The only reason the company settled was because the costs of defending themselves would have been substantially greater than the costs of settling early. The plaintiff’s attorney was originally asking $150,000, but, when shown the affidavits immediately suggested a settlement
In my opinion, that is a quintessential example of what is wrong with the tort system. The company had only two choices; settle for an acceptable loss or see the suit through to the end at a much greater cost. Even if they won the suit, the costs would have been much greater.
That is an unacceptable (and obviously unfair) burden to place upon defendants.
April 5, 2010, 8:36 pmOrenWithAnE says:
They are not interfering the legal process, they are opting not to fund it out of their own purse. Big difference.
As I said, their determination was no more meaningful than their determination that every has to come to a full and complete stop at every red octagon. The law was intended to be implemented by a flexible and pragmatic Attorney General, whom the legislature can influence.
As to whether it’s a ‘good idea’ for them to change their determination, I’ll pass.
The neat thing is that he can care only for himself and still produce net benefit to the people of MD.
I never asserted anything of the sort. According to my browser, I’ve used the term ‘balance’ about a half dozen times trying to express the notion that there are explicit tradeoffs in environmental regulation.
Absolutely agreed — clean water has value.
The problem is that it has finite value that can be measured against other things. So, hypothetically, if it would double Perdue’s unit-cost to reduce discharge of pollutants into the water by 0.01% (I’m not asserting that this is the case), then the regulation would be suboptimal. Conversely (and again, not asserting this is the factual case), if it would raise the unit-cost 0.01% to half the discharge that would likely be a good regulation.
In practice, we usually defer to the legislature to balance the need for environmental protection and economic output.
No dispute with anything in this paragraph.
April 5, 2010, 11:25 pmyankee says:
There are different types of political motivations, some worse than others. A desire to enact policies that will make most people better off, thereby ensuring your reelection, is a case of good political motivation. At the other end we have the de facto bribery that’s in play here, which is extremely common but no less lamentable for that reason.
April 6, 2010, 2:21 amRPT says:
Karen Sloan
A good ending to Perdue’s chicken-s*** challenge”
“The National Law Journal
April 06, 2010
The University of Maryland School of Law won a partial legislative victory Friday when the Maryland House of Delegates rejected a measure that would strip funding from the university unless its environmental law clinic reported certain client information.
The clinic has been at the center of a controversy pitting advocates of law school clinics against state lawmakers concerned about the effect clinic activities may have on local industry. Maryland was just the latest state in which government officials or legal opponents have sought to clamp down or obtain information about the working of a law school clinic — clinics in Louisiana, New Jersey and Michigan have also come under attack recently.
Legal educators and clinic advocates have actively fought such efforts, arguing that the clinics essentially function as law firms, their activities protected by attorney-client privilege.
The Maryland fight stems from a lawsuit that the law school’s environmental law clinic filed on March 2 on behalf of an environmental group against poultry giant Perdue Farms and a chicken farmer who supplies the company. The lawsuit contends that the defendants are illegally discharging pollution into the Franklin Branch and Pocomoke River, which feed into the Chesapeake Bay.”
April 6, 2010, 3:17 pm