The perils of state-funded public interest work?

Law school students nationwide are facing growing attacks in the courts and legislatures as legal clinics at the schools increasingly take on powerful interests that few other nonprofit groups have the resources to challenge.

On Friday, lawmakers here debated a measure to cut money for the University of Maryland’s law clinic if it does not provide details to the legislature about its clients, finances and cases.

The measure, which is likely to be sent to the governor this week, comes in response to a suit filed in March by students accusing one of the state’s largest employers, Perdue, of environmental violations — the first effort in the state to hold a poultry company accountable for the environmental impact of its chicken suppliers.

-- DevinMcDougall - 04 Apr 2010

Since Columbia, like most (if not all) private institutions receives some money from the government, I wonder how this issue will affect the issues our clinics take on. While I'm sure there's less pressure from outside sources at Columbia than at a public law school, there are pretty clear signs around campus of the government money CLS accepts. If we cannot keep military recruiters out of our buildings, how can the clinics maintain their autonomy?

-- NathanStopper - 07 Apr 2010

@Nathan - you raise a very interesting point. That said, I think we should look at this from another angle as well. The first picture in the NYTimes article that Devin posted is a picture of Jim Purdue. One of the reasons that the Maryland legislature is so active on this matter is that big industry in the state is pushing back and complaining to the legislature. As a school that accepts a large amount of money from the firms that represent many of the big corporations that the work of clinics affects (Skadden Stairs, Cravath Room, etc.) we should also consider how this affects clinic work. What will happen when a CLS clinic sues a big client of one of the firms that gives so much to the school? It will inevitably happen at some point (and I'm sure already has), but the implications may be different now that this issue has been brought into the spotlight. Just some food for thought...

-- DavidGoldin - 07 Apr 2010

One way to look at this (i.e., portrayed in the article) is as an example of a powerful private party, Perdue, using its influence to skirt justice and trample academic freedom. But how far should “academic freedom” extend? Does this freedom grant universities the unchecked right to use tax payer money to initiate lawsuits against corporations and families as they see fit? The husband and wife team that runs the small farm referred to in the article is probably not wealthy, and may not be able to hire lawyers to best represent their interests (Perdue’s interests may or may not line-up with theirs).

Before the University claims “academic freedom,” I think it owes us an explanation of how it chooses its clients. If the clinic is run in a way that truly respects academic freedom, the administrators of the clinic should have no trouble showing that, over time, they have represented a wide range of clients and ideologies (at least some of which should be diametrically opposed to each other). The University apparently has not been able to do this.

Although Perdue may be acting in a morally-deficient way, I think that there is just as much room for corruption on the part of the University of Maryland (or any other large organization). Therefore, I think it is legitimate for the legislature to try to assess the methodology by which the clinics are run. Is the University simply filing lawsuits that will make for interesting job interview talks for its students, and for after-work drinks on the Harbor? Are these lawsuits being "green-lighted" based on the ideology of a small number of administrators who run the clinic? Although I too worry about the implied threats that the legislature may be sending to the University in requesting the detailed information that it is, I do think that there are legitimate reasons for them to want this information.

-- SaswatMisra - 08 Apr 2010

Saswat - I understand where you are coming from with regards to the legitimate interests for the state to want this information. One of the key facets of a public institution is that it is accountable to taxpayers, and for this accountability to have some depth, there must be access to information. My main concern with the current situation in Maryland is the reason for the legislature's action (Purdue using its influence). Law school clinics aren't the only public agencies that sue big companies - state and federal agencies do this as well. They take these actions to protect their citizens - and one of the reasons I pay tax dollars is to be protected by my government - be it from E.Coli in my hamburgers or from toxic waste in my tap water. Most people would probably be shocked if a company were able to get the legislature to threaten these agencies to protect its interests.

I think that one of the issues that is so concerning about this is that law school clinics seem like a low hanging fruit. It is easier to have the legislature exert influence over a group of law students than it is to have it exert influence over a long established government agency. There will also likely be less outcry. Nonetheless, this is still quite a threat. If the legislature found a well-documented trend of lawsuits against a particular industry that seemed motivated by bias, or a disproportionate number of frivolous law suits filed by law school clinics, there may be grounds for action, but it doesn't seem as though this threshold has been met yet in Maryland.

-- DavidGoldin - 09 Apr 2010

@Sawaswat - I think the question here is whether or not academic freedom actually requires that a wide range of ideologies be represented. Once the government requires that the clinic (or any other academic offering, for that matter) represents a balance of ideologies, then it begins to dictate what the professor may or may not teach. If an environmental clinic is involved in a bunch of cases against polluters, is it then required to represent polluters in subsequent litigation? I really don't think we want the government to involve itself in dictating what can and cannot be taught in universities, or what cases a clinic may or may not litigate.

The most recent issue of the Columbia Magazine featured a great interview with provost emeritus Jonathan R. Cole about academic freedom that is very relevant to our conversation (you can read it here). One comment that struck me was:

"Academic freedom allows faculty members to determine what will be studied in the classroom, to organize the classroom as they see fit, to engage in conversations about ideas or experiments that might be radical, with the expectation that there will be a set of rigorous, conservative methods used to test the truth and value of those ideas."

One additional point: it makes sense to me that clinics will mainly be representing the small guys and not the Perdues of the world, since they can afford to pay lots of money to litigate cases instead of relying on pro bono work from clinics.

-- NathanStopper - 10 Apr 2010

@David –I like that these clinics are fighting for justice (I actually support the cause in this particular case). At the same time, as you mentioned above, the University is acting like an extension of the state executive branch by operating these clinics. I see that as a potential problem because the clinics don’t have the same level of accountability as the elected executive branch does. Normally, if the citizens of Maryland don’t agree with the types of lawsuits that the executive branch is bringing, they can vote for change (regardless of how well-justified the lawsuits are "on the merits"). Here, I can see an argument that Maryland is using its University-run clinic program to “hide the ball” and bring unpopular lawsuits that it would not normally bring through the Prosecutor’s office for fear of angering its electorate. (Like you, I don’t actually think that is happening here, but I could see an argument along those lines.)

@Nathan – I also support very broad academic freedom, but I think of academic freedom as a “shield” rather than a “sword” (to use Civ Pro terms from last semester). Here, I think that the University is using academic freedom as a sword in filing lawsuits against the family and Perdue. In that role, I think that the University is acting more like extension of the executive branch, and less like a University pursuing its traditional academic mission (in which I agree that the principle of broad academic freedom should govern). While I think U Maryland's students will be better off from the experience of having litigated these lawsuits, I also think that it is reasonable to subject the clinics of Maryland to a higher degree of scrutiny than would normally be allowed when the University is acting in its traditional (non-aggressive) role.

-- SaswatMisra - 10 Apr 2010

@Saswat - you definitely present a valid concern which I agree with in the abstract. If a state's executive branch were using school run clinics in public law schools as a way to bring unpopular lawsuits without being accountable to the electorate, it would be immensely troubling. One of the key tradeoffs in having a "fourth" administrative branch in government is the fact that power is isolated from accountability, presenting a potentially dangerous situation. That said, it seems unlikely that a state would be able to use its public university's clinic program for its own objectives (to bring unpopular lawsuits without being detected).

Law students and law professors are highly argumentative people. It seems somewhat implausible that members of Maryland's executive branch (or the executive branch of another state) would be able to dictate to law school clinics what cases they should and should not take. Granted, these clinics often do take cases that are unpopular and that the executive branch may want to see brought but will not bring for fear of political repercussions, but clinics also likely take cases that members of the executive branch would prefer that they not take.

If citizens of Maryland are truly unhappy with what their university is doing, they have recourse as well. They can lobby their legislators to slash funding and allow the public school to wither away (which seems to be the direction California is heading in, though for different reasons). They can even lobby for specific cuts to the law school. But this would be an action initiated by the citizens of Maryland. The current situation in Maryland, however, was started on behalf of lobbyists for the poultry industry in response to lawsuits against them.

-- DavidGoldin - 12 Apr 2010