"A child's learning is the function more of the characteristics of his classmates than those of the teacher." James Coleman, 1972

Sunday, July 08, 2007

A Little History of the Pacific Legal Foundation

The legal team that successfully put their argument for resegregation before the conservative majority the Supreme Court has a history of standing up for the trampled rights of corporations, particularly corporate polluters. In the 70s, this group of crusaders supported all sorts of corporate rights, from spraying DDT and herbicides in national forests, to arguing for the inalienable rights developers in property disputes, to campaigning against affirmative action policies. From ExxonSecrets.org:
The Pacific Legal Foundation was the nation's first business oriented public interest law firm founded in 1973 by members of the California Chamber of Commerce. PLF was politically supported by officials in then Governor Ronald Reagan's cabinet, including founding member Edwin Meese.

PLF's initial financial support came from members of the California Chamber of Commerce and J. Simon Fluor of the Fluor Corporation's oil, nuclear and mineral dollars. Anti-environmental from the start, PLF's early actions supported the use of DDT, the use of herbicides in national forests, and the use of public range land without requiring an environmental impact review. They also supported at least six pro-nuclear power cases before the early eighties while accepting funding from Pacific General Electric (PGE), a utility which has gained a great deal through the development of nuclear power in the Pacific Northwest. In the nineteen-eighties PLF won several cases that are considered land marks by those working on property rights issues today: Nollan v the California Coastal Commission and First Church, both Supreme Court victories which provide precedence for the takings litigation pursued today (Oliver Houck, "With Charity For All," Yale Law Journal, 1993).

And here is a chunk from a Saturday piece in the L. A. Times:
Who's behind the integration decision?

It's the Pacific Legal Foundation, champion of right-wing causes for 35 years.

By Mark Tushnet, MARK TUSHNET teaches constitutional law at Harvard Law School.
July 7, 2007

THE SEATTLE school integration case decided by the Supreme Court last month was brought in the name of a group called Parents Involved in Community Schools on behalf of Jill Kurfirst and her ninth-grade son. But it was a little-known, Sacramento-based organization called the Pacific Legal Foundation — a conservative public interest law firm involved in the case from the beginning — that developed many of the legal arguments five justices ultimately found persuasive.

Where did the foundation come from? The story begins with former Justice Lewis F. Powell. Shortly before he was nominated to the court in 1971, Powell, then a Virginia lawyer, wrote a memo to a friend at the U.S. Chamber of Commerce titled "Attack on the American Free Enterprise System." In it, Powell worried that liberal groups had nurtured specialist lawyers and developed litigation strategies to defend government regulation. Businesses, he argued, were suffering because they had a "disposition to appease" and weren't able to present a countervailing view of what constituted the public interest.

Powell's memo prodded the business community to help create a number of not-for-profit law firms devoted to arguing a conservative point of view. Ronald Zumbrun and Raymond Momboise, former advisors to California Gov. Ronald Reagan, founded the first one — the Pacific Legal Foundation — in 1973. On its website today, the foundation says it exists to fight "tyranny" engendered by "overzealous bureaucracies and government red tape" and that it is a foe of "government regulators and environmental extremists." Other issue areas: fighting racial preferences, combating eminent domain laws and encouraging government to take economic impact into account when designating critical habitat for endangered species.

After some initial enthusiasm, big business found these new public interest law firms less useful than it had hoped. The firms' case selection policies were erratic, and the winnable cases they brought — mostly against environmental regulations and land use laws — had few implications for the business community's larger concerns.

Big business soon turned to a newly developed, specialized Supreme Court bar in Washington (of which Chief Justice John G. Roberts Jr. was a leading member) to pursue its more important priorities: tort reform through judicial restrictions on punitive damages and interpreting national statutes in a business-friendly manner to reduce and eliminate penalties for business misconduct. Conservative public interest law firms played only minor roles in these cases.

By the time Chief Justice William H. Rehnquist died in 2005, most of the initiatives championed by the conservative public interest law firms — restricting federal power, putting constitutional limits on regulation and fighting environmental regulation — had hit a wall.

Still, Pacific Legal Foundation and other such law firms continued to operate, funded by donors interested in a conservative agenda. But always needing to raise more money from outsiders affected what the firms could do. They had to pick cases that garnered a lot of publicity, which meant they were not always the best for giving constitutional law a conservative cast. You can win cases (and publicity) if you can find "horror stories" about government regulation, but winning such cases makes few inroads toward more reasonable government regulations.

The Seattle case shows that conservative public interest law firms can win some big cases. These firms, however, are notorious for lacking follow-through. They get publicity from winning in the Supreme Court, not from slogging through the lower courts time and again to define the contours of the law on the ground. Winning in the Supreme Court may excite donors, but haggling with school boards over how to enforce the court's decisions does not.

The foundation's press release called last month's ruling "the most important decisions on the use of race since Brown vs. Board of Education." Five years earlier, Clint Bolick, a co-founder of the Institute for Justice, another conservative public interest law firm, hailed the Supreme Court's decision upholding the constitutionality of Cleveland's school voucher program as a Brown for the 21st century. . . .

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