SKINNING CATS – continued

Sometimes timing is everything.

Last week, in “Skinning Cats in Different Ways,” I wrote about the efforts of the state legislature to undermine the University of Maryland’s law school clinic. The clinic’s environmental lawsuit against Perdue Farms and some of its chicken suppliers prompted Jim Perdue himself to visit Annapolis and plead the case for preserving important state financial interests.

Now, as a gigantic oil slick oozes its way toward the nation’s Gulf coast, the National Law Journal reports that a Louisiana legislator has offered a suggestion even more draconian than the one eventually abandoned in Maryland.(http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202457607971&Battleground_over_law_school_clinics_moves_to_Louisiana)

Senator Robert Adley (R-Benton — a 3,000-member community in a remote corner of northwestern Louisiana and far from the Gulf of Mexico) wants the state to prohibit law clinics at public and private colleges receiving state money from suing government agencies, individuals, and businesses for financial damages.

Apparently, Tulane is the target of this legislative attack that would include LSU. When a Baton Rouge reporter sought comment last month, the president of the Louisiana Chemical Association said that hurting LSU was not the bill’s intent:

“I know of no beefs with any of the other schools and we are not trying to impede their use of law clinics to give law students broad practical experience prior to graduation…Tulane’s environmental law clinic has consistently brought suits against industries and Louisiana state agencies and takes credit on its Web site for preventing hundreds of millions of dollars from coming to Louisiana.” ((http://www.2theadvocate.com/news/90065107.html?showAll=y&c=y)

A third-year LSU law student quoted in the article made the point with elegant simplicity:

“At first blush, it seems like a way for corporations to prevent themselves from getting sued. If you’re not doing something wrong, then why are you worried?”

She’s right. Law clinics aren’t roving bands of policymakers in search of causes they can use to remake the world. They pursue legal claims that might not otherwise see the light of day. They succeed because judges and juries determine that the defendants against whom they prevail have violated the law.

Here’s a better suggestion for Senator Adley: Just identify every current law or regulation that your corporate constituents don’t like and propose repealing all of them. It’s far more transparent. After all, what’s the point of enacting rules to pursue policies and protect rights if you’re simultaneously barring law clinics from enforcing them on behalf of those who lack the means, independence, or fortitude to do so?

SKINNING CATS IN DIFFERENT WAYS

For those who think that important lawsuits are won only in courtrooms, look at what’s happening in Maryland.

In March, the University of Maryland’s law clinic filed suit on behalf of an evironmental group against Perdue Farms — one of the state’s largest employers — and an 80,000 poultry farm. The complaint alleges illegal discharge of pollution into rivers feeding the Chesapeake Bay. So far, it sounds like just another case, right?

Wrong. Two weeks later, the Maryland Senate passed a budget amendment that would have required the university’s law clinic to disclose its clients, expenditures, and other information about its cases for the past two years — including pending matters. If it refused, the university would lose $500,000 in state funding.

Any lawyer in private practice will confirm the chilling effect that such inroads into sacred confidentiality obligations would have on them and their clients. One can imagine the uproar that would follow if someone asked a corporate client to disclose how it was spending its money to prosecute a claim or defend itself.

After considering even stricter measures and bigger monetary penalties, the Maryland House of Delegates approved the Senate bill’s disclosure requirement, but removed the funding cut.

According to the NYTimes, a Perdue spokesman said that the company had done no lobbying in support of the legislation, but its chairman, Jim Perdue, went to Annapolis in early March to tell lawmakers that cases like the clinic’s posed “one of the largest threats to the family farm in the last 50 years.” (http://www.nytimes.com/gwire/2010/04/08/08greenwire-law-students-role-in-farm-pollution-suit-anger-96381.html). 

Apparently, legal aid clinics face similar challenges to their independence in Louisiana, Michigan, and elsewhere.

Those supporting the requirements argued that state tax dollars shouldn’t be used to undermine important economic interests, one of which is a big employer.

If the issue is a state’s financial interests, I suppose similar objections could apply to legal aid clinics that defend the accused.  After all, the state is paying to convict them, right?

Maybe we should go beyond law school clinics and eliminate state-subsidized public defender programs. too.

Or maybe the real problem is the ability of private players to control an entire state’s legislative process.