Free to Sue on The Public Dime

• Author: Walter Olson
• Position: Senior fellow at the Cato Institute and author most recently of 'Schools for Misrule: Legal Academia and an Overlawyered America' (Encounter, 2011), which includes a chapter on law school clinics
• Pages: 25-25

MAY/JUNE 2011 ❧ Page 25

Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, May/June 2011

anoTher view

fully asserting that it would im-

properly violate its independence

even to reveal the names of its

clinic’s clients.

Let’s stipulate that it’s generally a

bad idea for lawmakers to intervene

a la carte in clinics’ work, especially

since they’ll often exercise such over-

sight not on any grand philosophical

basis but to advance perceived con-

stituent or district interests. And fur-

ther problems arise when a case has

already been f‌iled, at which point re-

strictions may hamper clinics’ ability

to represent real-life clients.

But who would we be kidding

if we pretend that clinics just take a

random selection of poor clients or

otherwise unrepresented causes as

they walk in the door?

Even the most thought-

fully run clinic’s docket

will be shaped at least in

part by some ideologi-

cal premises, and quite

a few pursue strong,

undisguised law-reform

agendas that are at vig-

orous odds with the

views of other citizens as to how the

law should develop. Yet some of the

same profs who assure their students

in class that law is inescapably po-

litical seem willing to strike a pose of

“Ideological? Who, us?” in defend-

ing clinics.

Does academic freedom enter

into it? Maybe at some point. But

let’s not imagine that it’s an easy or

obvious jump from the freedom of

research or the freedom of classroom

discussion to the freedom to sue

anyone in hot pursuit of ideology,

on the public dime and with zero

oversight. It’s not.

Walter Olson is s enior fellow at th e

Cato Ins titute and author most recently

of “Schools for Misrule: Legal Academia

and an Overlawyered America” (Encounter,

2011), which includes a chapter on law

school clinics.

Per a noisy outcry lately,

law school clinics are un-

der legislative “assault”

from targets of their

lawsuits, thus menacing

their “freedom to decide how to

educate students” (as the New York

Times rumbles). Whether or not the

tone of breathless embattlement is

justif‌ied, the clinics’ role raises hard

issues that can’t be laid to rest just by

insisting that mean lawmakers stop

picking on noble clinics.

Both of the best-known recent

controversies arose after environ-

mental clinics picked f‌ights with

dominant industries in their states.

Tulane’s clinic had blocked a plastics

plant on grounds of “environmental

justice,” though many

local black residents had

worked hard to attract

it. Maryland’s clinic had

sued a family-owned

chicken farm and aligned

itself with the litigation

strategy of a prominent

private group, Water-

keeper, whose spokesman

Robert F. Kennedy Jr. is nationally

famed for contentious rhetoric.

Given how often clinics charge

into sensitive areas, it’s actually re-

markable how seldom they face leg-

islative backlash. Clinics have fought

popular welfare reforms in New

York, California, and elsewhere;

pushed in various states to transfer

school funding authority from voter-

accountable of‌f‌icials to courts; and

f‌iled countless suits against popular

governors and mayors.

Yet seldom do they run into seri-

ous statehouse opposition. Even in

Louisiana — pretty much a worst-

case scenario if you’re looking for

states inclined to favor industrial

development over academia — the

problematic bill hasn’t made it out

of committee, while in Maryland

the chicken interests soon fell back

in disarray, the university success-

More prosaically, the MCI Tele-

communications court noted that

public involvement helps ensure

an “agency will have before it the

facts and information relevant to a

particular administrative problem.”

For example, one factor that may

have contributed to the Deepwater

Horizon oil disaster in the Gulf of

Mexico was the lack of public par-

ticipation in approval of gulf drilling

plans. A September 27, 2010, New

York Times web posting explained

that environmental groups’ failure

to participate meant that the federal

Minerals Management Service “had

little to fear if they rubber-stamped

oil companies’ plans, even if they

included claims that now seem ri-

diculous.”

Congress’s mandate for

public participation is

rarely directly enforce-

able by citizens. For

example, environmen-

tal laws do not provide for citizen

suits to force states to encourage

public participation in “develop-

ment, revision, implementation,

and enforcement” of environmen-

tal law. But courts should f‌ind that

state laws designed to frustrate such

mandates are preempted under

the U.S. Constitution, Article VI,

Clause 2 — the Supremacy Clause

— which provides that the “Consti-

tution, and the Laws of the United

States . . . shall be the supreme Law

of the Land.”

Courts have derived three types

of preemption from the Supremacy

Clause: express, f‌ield, and conf‌lict

preemption. First, and most obvi-

ously, Congress can preempt state

law with an express legislative man-

date. Second, f‌ield preemption oc-

curs when federal laws occupy an

entire f‌ield. Any state and local laws

that purport to regulate within a

fully occupied f‌ield are preempted.

Walter Olson

Free to Sue on e Public Dime