Chapter 6 The Art of Public Interest Litigation
“All professions are conspiracies against the laity.”
— George Bernard Shaw
Alan B. Morrison digs out a tattered old scrap of paper from his wallet and reverentially unfolds it. Squinting at the faded ink, he reads off a laundry list of perhaps a dozen imaginary legal cases that, as a 33-year-old lawyer, he had dreamt of bringing: “Lawyers’ minimum fee schedules….First Amendment advertising for lawyers….Executive impoundment of funds….Union democracy….Price-fixing by the auto industry ‘Blue Book.'”
If Lincoln could draft the Gettysburg Address on the back of an envelope, Morrison takes impish delight in thinking that the highly respected Public Citizen Litigation Group could have similar origins. Over the past nineteen years, Morrison and his associates have initiated dozens of precedent-setting lawsuits on behalf of the public, taking twenty-nine cases to the U.S. Supreme Court (the won-loss record to date, 19-9, with one 4-4 tie) and arguing cases in virtually every federal circuit and many state courts. Morrison, Harvard Law School, 1966, began compiling his dream cases in 1971 when, as an assistant U.S. Attorney in the Southern District of New York City, he yearned to do public policy litigation on behalf of society’s underdogs. In time, with an assist from Ralph Nader, Morrison’s list would help expand the frontiers of the budding genre of policy-oriented litigation, public interest law. Amidst the small fraternity of public interest attorneys in Washington, D.C., Morrison’s shop has come to be one of the most prolific and daring. Few law firms, corporate or public interest, can rival the Litigation Group’s impact on so many different areas of law — freedom of information, open government, union democracy, lawyers’ ethics, food safety, occupational safety and health, the constitutional separation of powers, among many others.
Morrison first met Nader in 1971 through a law student who had worked for Nader the previous summer. Intrigued by the student’s recommendation, Nader approached Morrison, then an assistant U.S. Attorney in the Southern District of New York City, to see if he would be interested in founding a public interest law firm. In February 1972, the two of them set off to do just that. The marriage of Nader’s ambitious political vision and Morrison’s creative legal mind soon gave rise to a special form of litigation that concentrated on “representing the unrepresented.” Their clients became consumers harmed by cancer-causing food additives, workers exposed to toxic substances on the job, union members deprived of their rights by labor unions, citizens victimized by the legal profession’s price-fixing and other anti-competitive practices and consumers recklessly exposed to the carcinogenic drug DES with the sanction of the Food and Drug Administration.
Few of the cases that Morrison and his associates bring seek to redress individual harms alone. Rather, most of them are chosen to advance a new legal principle of behalf of all similar situated victims, in order to help forge new public policy. Morrison made the conscious decision to avoid litigating in areas where other public interest groups, such as environmentalists and civil rights lawyers, were involved. “I have viewed our role from the start as one where we do things that other people are not doing,” he explained.
In its early days, the Litigation Group stepped into a political vacuum in the courts. Until then, the average citizen rarely had the inclination, imagination or money to wage litigation in the federal courts on public policy questions other than traditional environmental and civil liberties issues. Suddenly, the Litigation Group was marching into a virgin territory of law. As Morrison put it, “At the time federal agencies often didn’t pay attention to what the law was because no one except industry had ever called them on it before.”
In counterpoint to its serious mission, the Litigation Group’s offices are furnished in the Modern Eclectic school, complete with lumpy cushions and distressed hardwood. The walls are more likely to be adorned by dog-eared political posters than expensive modern art. As for the Litigation Group’s ten casually dressed attorneys, they are ready to change into their dark business attire, hanging in the closet, if a sudden court appearance or deposition is required.
What makes the Litigation Group’s caseload so distinctive is its preference for difficult, high-impact cases and disdain for the lucrative but routine cases that characterize conventional law practices. Its chief function is to serve the legal needs of the Public Citizen groups and other Nader-affiliated organizations, but the Group has great leeway in choosing its own targets as well. That’s because the Litigation Group’s legal practice is one of choosing causes, not clients — a liberating approach that also entails economic sacrifice. The $500,000 annual operating budget of the Litigation Group is less than individual senior partners typically earn at top corporate law firms. Starting salaries are $23,000, and the seasoned Morrison earns less than $50,000 (supplemented by his teaching at Harvard and New York University Law Schools). Morrison shrugs. “The work is as intellectually demanding and stimulating as any law job in the country.” His associates seem to agree; the average tenure of attorneys now with the Litigation Group is more than ten years.
Certainly one reason Morrison’s associates stay so long is the breadth and challenge of their cases. As described in Chapter 4, the Litigation Group specializes in litigation under the Freedom of Information Act, Federal Advisory Committee Act and various open government statutes. It also handles a great many cases involving workers’ rights, occupational health and safety, auto safety, commercial aviation (Chapter 5), and food and drug safety (Chapter 7), suing administrative agencies when they fail to carry out statutory mandates. In many ways, these administrative law cases are the centerpiece of the consumer movement’s litigation; they are the chief instruments by which government and business are held legally accountable for their actions. Because this litigation is often pursued in conjunction with other Nader and colleague public interest organizations, these branches of public interest litigation are discussed elsewhere, in the context of their particular issues.
Apart from these cases, the Litigation Group may be best known for its pioneering litigation to defend the constitutional separation of powers and reform the legal profession.
Defending the Constitution’s Separation of Powers
The “separation of powers” doctrine in the U.S. Constitution is not one that engages the attention of most Americans or even most politicians and lawyers. Yet its strict observance is indispensable for an open, responsible government, and hence is a major concern to the Public Citizen Litigation Group. The Constitution assigns different responsibilities to the three branches of the federal government — the legislature, the executive branch and the judiciary — and mandates “checks and balances” among the three branches to help prevent any single branch from abusing its authority. Alas, the intended equilibrium among the three branches is not achieved automatically; indeed, it is often stretched to the breaking point by a powerful President or an overreaching Congress.
Morrison is ever vigilant when it comes to the matter of separation of powers. Whenever one branch of government seizes greater authority than the Constitution allows or tries to shirk its constitutional duties, Morrison sees the specter of tyranny. “Separation of powers prevents one part of the government from acquiring too much power,” Morrison explains. “It also ensures that decision-making responsibility is clearly identified, so that the nation’s elected leaders can be held accountable to the voters.”
The Litigation Group was only months old when it plunged into its first separation of powers case, Richard Nixon’s refusal in 1972 to spend money that Congress had appropriated for specific programs. In State Highway Commission of Missouri v. Volpe, the Litigation Group represented the chairman of every standing committee in the Senate to force Nixon to spend federal highway funds that he had impounded. Public Citizen argued that if the President could refuse to spend appropriated money, he could do indirectly what he had been unable to achieve directly, that is, lower the spending levels set by statute. If left unchallenged, the President could use this tactic to assume the “power of the purse” that the Constitution clearly assigns to Congress.
Nixon provoked another separation of powers controversy in 1973, when he tried to shut down the Office of Economic Opportunity, an agency charged by Congress with providing services to the poor. In defiance of Congress, acting OEO director Howard J. Phillips vowed to put the agency “out of business.” Alarmed that a President could simply ignore Congress, Morrison discovered a statute that said acting directors of agencies could only serve thirty days without Senate confirmation. In a suit brought on behalf of four Senators — a highly unusual move made possible when then-Senator Walter Mondale agreed to be one of the plaintiffs — Morrison succeeded in getting Phillips ousted, effectively neutralizing Nixon’s bold power grab.
Perhaps the most significant separation of powers case brought by the Litigation Group was its lawsuit that had the “legislative veto” declared unconstitutional. In an attempt to control how laws are carried out, Congress had inserted a provision into dozens of laws by which it claimed the right to veto executive branch decisions, often by one House acting alone. Morrison was alarmed that this device bypassed the constitutionally prescribed process for enacting legislation (approval by both houses followed by the President’s signature), and allowed Congress to claim far greater powers than the Constitution authorized. Moreover, the legislative veto blurred the lines of responsibility because Members of Congress could vote for politically popular and vaguely written legislation and then veto specific actions by regulatory agencies, claiming they were unwarranted exercises of executive branch power.
Congress Watch tried to stop several legislative veto votes in Congress in 1974 and 1975, but lost. Realizing that consumers could never prevail in Congress, Congress Watch asked the Litigation Group to consider litigation over the issue. Morrison initiated three lawsuits to force the courts to address the issue. The one that ultimately became the test case involved Jagdish Rai Chadha, a Kenyan immigrant who had been seeking to stay in the United States and become a citizen. Even though the Immigration and Naturalization Service (INS) had approved Chadha’s request to remain in the U.S., Congress, without stating any reason or relying on any evidence, used a legislative veto to single out Chadha and order him deported. In 1977, Morrison took up Chadha’s cause to challenge the constitutionality of the legislative veto and began working the case through the lower courts. In June 1983, the Supreme Court issued one of its most dramatic decisions ever in INS v. Chadha, which invalidated the legislative veto provisions in nearly 200 federal statutes. The ruling invalidated more federal statutory provisions as unconstitutional than all the other invalidated cases in Supreme Court history. The case obviously has had an impact in many areas of law, but its effects have been especially dramatic in improving the enforcement of laws protecting consumers against fraud, environmental hazards, and unsafe food, drugs and other products. (The story of the epic legislative veto case is engagingly told in Barbara Hinkson Craig’s 1988 book, Chadha (Oxford University Press)).
Within two years, the Litigation Group was in the thick of another major separation of powers controversy, the Gramm-Rudman-Hollings deficit reduction law. In 1985, when Congress could not muster the courage to cut the federal budget deficit, it devised the creative alternative of having unelected bureaucrats in the General Accounting Office, Congressional Budget Office and Office of Management and Budget dictate automatic budget cuts if Congress failed to meet deficit-reduction targets. The scheme improperly mingled legislative and executive branch duties, and allowed Congress to evade its proper responsibilities for formulating the federal budget.
In a telephone call to Morrison, Nader recommended a challenge to the law on constitutional grounds. To ensure a speedy court challenge, Morrison helped insert special language in the Gramm-Rudman legislation that authorized expedited judicial review and gave lawmakers standing to sue. Four hours after the President signed the bill, Morrison and his associate Katherine Meyer filed a constitutional challenge to the law on behalf of Representative Michael Synar and eleven other Members of Congress. In July 1986, the Supreme Court struck down Gramm-Rudman in Synar v. Bowsher. An exultant Morrison said, “Now, if legislators and the President want a balanced budget, they’ll have to get it the old-fashioned way: they’ll have to vote for it and sign it, respectively, and the public will be able to hold them accountable at the polls.”
While Morrison believes the integrity of the separation of powers doctrine is vital, he does not believe in a slavish, uncritical application of it. A case in point is the constitutional questions raised about “independent counsels” appointed to investigate wrongdoing by senior members of the executive branch. The issue was first raised when Richard Nixon, alarmed that Special Prosecutor Archibald Cox was closing in on numerous Watergate-related crimes, fired Cox in the infamous “Saturday Night Massacre” of October 1973. The dismissal threatened a constitutional crisis and provoked a national uproar.
But how could the rule of law be reaffirmed and Nixon’s action nullified? On behalf of several members of Congress (including a Senator who voted to confirm Elliot Richardson as Attorney General only because he promised to set up an impregnable independent counsel), Nader and Morrison initiated a suit challenging Nixon’s actions as a lawless abridgement of congressional authority. Judge Gerhard Gesell agreed, and declared Nixon’s firing of Cox and the attempted abolition of the Office of Special Prosecutor illegal.
The issue raised in that case was resurrected in a somewhat different form in 1978, when Congress enacted the Ethics in Government Act which set forth standards for appointing independent counsel. The purpose of an independent counsel, of course, is to eliminate potential conflicts of interest when high government officials would be obligated to investigate their close associates. But can Congress pass a law that diminishes the power of an executive branch official, the Attorney General, to prosecute criminal offenses? This question came to the fore in 1987 when Lt. Col. Oliver North, then implicated in the Iranian arms-for-hostages scandal, tried to stymie any criminal prosecution by arguing that the independent counsel provisions of the Ethics in Government Act violate the separation of powers doctrine. As a respected expert on the issue, the Litigation Group filed an amicus curiae “friend of the court” brief supporting Lawrence Walsh, the independent counsel. In 1988, the Supreme Court did in fact uphold the constitutionality of the independent counsel arrangement (albeit in a case involving someone other than North), and the prosecutions then proceeded.
The general counsel to the House Clerk, Steven R. Ross, finds Morrison a useful outside catalyst in clarifying the meaning of the separation of powers doctrine. “Without Alan,” says Ross, “it is difficult to get some issues before the courts” because neither Congress nor the White House usually want to force a head-on constitutional confrontation. By injecting themselves into the process, Morrison and the Litigation Group have helped establish valuable precedents in a little-litigated field and ensure greater accountability in government.
Reforming the Legal Profession
“Let us ask a simple question of the kind rarely heard at law schools or bar association meetings,” Ralph Nader suggested. “How many citizens have practical access to the legal system, whether to defend their rights or to advance their causes?” The answer is intuitively self-evident (and also confirmed by many studies): Not many. The legal system is often inaccessible, unaffordable and systemically biased in numerous areas of law against the interests of ordinary citizens. This core insight has motivated much of the consumer movement’s attempts to reform the legal system — by securing and exercising new rights for citizens, improving access to competent legal representation, and obtaining effective legal remedies.
One of the first consumer-oriented evaluations of the legal system came at an August 1973 conference of public interest lawyers convened by Nader. One upshot of that gathering was a provocative 1976 volume, Verdicts on Lawyers, edited by Nader and Mark Green, which explored “how the legal profession has avoided squaring its duty of service to all with its monopolistic status under the law.” The book sought to spark a reform movement both inside the profession and among the public. In this and other volumes, the consumer movement has helped inspire a new critique of the legal profession, exposing its insularity, excessive costs, barriers to access, superficial ethical standards and resistance to public accountability. Through the Litigation Group, the consumer movement went a step further and took one of the few steps that the hidebound profession would appreciate. It sued. Alan Morrison and the Litigation Group are responsible for a series of precedent-breaking court rulings, several by the U.S. Supreme Court, that have dramatically altered the way law is practiced.
In 1972, Morrison unexpectedly got his chance to take on one of his dream cases, a challenge to the legal profession’s routine price-fixing. The pillars of the legal establishment cringed at the very word; they preferred the more decorous term, the “minimum fee schedule.” But the effect was the same: consumers had no choice but to pay the legal fees that bar associations mandated. Most grumbled at the blatant unfairness but who had the money or expertise to sue? Certainly few attorneys cared to quarrel with the cozy, highly profitable arrangement.
Shortly after starting the Litigation Group, Morrison had the good fortune to be asked for his help in a lawsuit brought by attorney Lewis Goldfarb and his wife, who had just bought a house in Reston, Virginia. Upon reading the Truth-in-Lending statement for the mortgage, the Goldfarbs discovered that they were going to have to pay $537.50 for a lawyer’s opinion that the title to their brand new home was good enough to obtain a mortgage — this, in addition to nearly $200 in title insurance for the same thing. To try to obtain a cheaper legal fee, they wrote to 36 other attorneys in northern Virginia. All of them quoted the identical fee set by the bar, and even said it would be unethical to charge less! The Goldfarbs decided to sue the Virginia bar for violating federal antitrust laws.
When Goldfarb’s eligibility to represent himself and a class of 2,400 other Reston homeowners was questioned, he was delighted to have Morrison assume control of the case. Morrison shepherded the case through the lower courts and succeeded in getting it heard by the U.S. Supreme Court. In 1975, a unanimous Court stunned the nation’s lawyers by ruling in Goldfarb v. Virginia State Bar that minimum fee schedules violated antitrust laws. It was a major victory for consumers, reducing legal fees for home closings in northern Virginia by one-third and generating similar reductions for other services nationwide. It also whetted Alan Morrison’s appetite for new cases that could challenge the legal profession’s anti-competitive practices — such as the bar’s prohibition on advertising by lawyers.
For decades the bar had banned lawyers from soliciting cases on the grounds that it was unseemly, unethical behavior. Advertising would only lower the public’s opinion of the profession, it argued. Such lofty considerations aside, the chief effect of the advertising ban was to keep legal fees artificially high by preventing the rise of discount lawyers and lawyers seeking mass markets. If the ban seemed questionable, the quandary was finding a suitable test case. The case that proved to be the stepping stone to legalization of lawyers’ advertising was Virginia Citizens Consumer Council v. Virginia State Board of Pharmacy, a suit brought by the Litigation Group to strike down a state pharmaceutical profession’s prohibition on advertising for prescription drugs. The Court’s 8-1 decision in that 1976 case greatly expanded First Amendment protections for commercial advertising. It also paved the way for the Court’s ruling the next year in Bates v. State Bar of Arizona (brought by parties independent of the Litigation Group, but supported by the Litigation Group in the Supreme Court) that finally struck down the bar’s absolute ban on legal advertising. The ruling is one reason that low-cost legal clinics have arisen in hundreds of shopping centers around the country.
Since breaching this threshold, the Litigation Group has gone after numerous other artificial barriers to competition created by state bars. One such case involved Ohio attorney Philip Zauderer, who had run newspaper advertisements that depicted the infamous Dalkon Shield and offered to represent women injured by the device on a contingent fee basis. The Ohio Supreme Court reprimanded Zauderer for using an illustration in his ad, giving unsolicited legal advice, recommending himself as a lawyer, and giving partial disclosure of information about fees and costs. When Morrison and his associate David Vladeck succeeded in getting the case heard before the U.S. Supreme Court in 1985, the Court held by a 5-3 vote in Zauderer v. Office of Ohio Disciplinary Counsel that states could not ban truthful, accurate advertisements by attorneys. Equally important, the ruling suggested that it would be unconstitutional for states to ban direct mail solicitation advertising by lawyers.
The Litigation Group’s many lawyers’ advertising cases have helped bring about a new ethic in the profession. Searching out clients is no longer confined to elite lawyers discreetly making deals at the country club; now ordinary practitioners can market their services and average consumers can find the most appropriate and least expensive attorneys. The Yellow Pages, local newspapers, radio and television regularly contain legal advertising, and law firms routinely sponsor “educational” seminars that are clearly aimed at attracting new business. Of all the factors that might lower the profession’s public esteem, it is safe to say that advertising is one of the least consequential ones. Advertising has made legal services more accessible and affordable.
Many state bars have shamelessly tried to curb competition through their authority to ban the “unauthorized practice of law” — another tactic that the Litigation Group has aggressively attacked. While such a ban may make sense on its face, it has often been used by the bar to require a lawyer’s services when they are not really necessary (uncontested divorces, title searches, name changes, etc.) and prevent the use of cheaper alternatives such as standardized forms or paralegal assistance. In various commercial transactions, the bar has essentially dictated a monopoly for itself and then fended off potential competitors by prosecuting them for the unauthorized practice of law.
One of the most dramatic such cases involved Rosemary Furman, a legal secretary in Florida who, for $50 apiece, was helping indigent, battered and often illiterate women prepare legal papers so they could obtain divorces. The Florida bar went after her with a vengeance and even sought (unsuccessfully) to have her jailed for contempt of court when she continued her business. The Litigation Group mounted a spirited defense, arguing that Furman’s indigent clients would be denied access to the law entirely without Furman’s services. The Florida bar ultimately prevailed in the state Supreme Court, but not before its self-serving tactics were given a national audience on Sixty Minutes and fiercely condemned by the public.
Yet another variety of bar protectionism that the Litigation Group has aggressively attacked is state residency requirements for admission to the bar. In Maryland, New Jersey, Massachusetts and Virginia, the Litigation Group has challenged state residency rules because they served merely to prevent competition and had nothing to do with a lawyers’ competence. Residency requirements for admission to state bars were finally struck down by the U.S. Supreme Court in Supreme Court of New Hampshire v. Piper, a March 1985 case that built upon many of the Litigation Group precedents. Two years later, the Supreme Court also set aside similar rules in the federal courts.
Empowering Consumers and Other Catalysts for Reform
Besides using litigation to transform the legal profession, the Litigation Group has tried to empower consumers to take action on their own. One of its most significant efforts in this regard was the 1983 book, Representing Yourself: What You Can Do Without a Lawyer (written by Kenneth Lasson and the Litigation Group), which describes the circumstances in which ordinary citizens can probably handle their own legal affairs, as in house settlements, uncontested divorces and simple wills.
Nader himself has taken on many similar projects to demystify the law and advance a consumer-side evaluation of legal services. One of his first projects in this regard was the Small Claims Study Group, whose thorough 1971 study, Little Injustices, described how the nation’s small claims court system was working and not working. New ground on the nature of consumer complaints and how business and the legal system responds were explored in No Access to Law: Alternatives to the American Judicial System (Laura Nader, editor, 1980) and When Consumers Complain (Arthur Best, 1981). Here again, Nader-backed projects tried to illustrate how consumers’ interests were systematically thwarted by self-serving legal barriers and business practices.
The consumer movement has paid special attention to statutory mechanisms that can give citizens powerful new leverage to instigate reforms. One such tool has been the authorization of attorneys’ fees to plaintiffs who bring successful lawsuits against either private defendants or the government. The Freedom of Information Act and the Equal Access to Justice Act, for example, both contain provisions allowing successful plaintiffs to recover their legal fees from government agencies if they lose in court. The awarding of attorneys’ fees, authorized by more than 100 federal and numerous state statutes, helps ordinary citizens represent their interests while reinforcing the substantive policy goals of laws that provide for attorneys’ fees. (E.g., Government officials know that they must take FOIA lawsuits seriously because they might end up paying their opponents’ attorneys’ fees.)
The consumer movement has promoted other innovations to increase citizen access to the legal system. One tool that was first used in the mid-1970s and adopted by many of President Carter’s regulatory chiefs was public participation funding, a program that makes grants to public interest groups and others who have relevant contributions to make to agency rulemakings but often cannot afford to participate. The idea had been adopted by Transportation Secretary William Coleman for the National Highway Traffic Safety Administration. Just as Coleman was leaving office, the new Carter NHTSA Administrator, Joan Claybrook, administered the program and helped other Carter regulators copy it. Public participation funding is important because if the views presented at federal rulemaking proceedings represent only well-financed interests, federal rules and regulations will not adequately reflect the public good. It came as no surprise that the Reagan administration summarily discontinued public participation funding as soon as it took office.
Two procedural reforms that remain elusive for the consumer movement are more expansive “standing to sue” rules and the right to pursue class actions. Standing to sue is a procedural technicality that defines who may properly ask a court to correct an illegal or unconstitutional action, a right generally accorded only to those who have a direct personal or economic stake in the outcome of a controversy. Historically, restrictive standing rules have prevented citizens from protecting their own interests, because their stake is considered too generalized (as when a citizen wants to force a government agency to enforce its own regulations). Because of standing restrictions, government officials are often able to ignore some laws simply because no one has standing to enforce them. While attorneys for the consumer movement have usually been able to finesse standing restrictions to get into court, restrictive standing rules are often unnecessary and unjustified, and wasteful of precious litigation talent. In tax issues, it is virtually impossible to get standing to challenge rules and regulations because it is rare to have taxpayers who have suffered a unique, personal harm that would entitle them to standing.
Restrictive conditions for obtaining class actions can also prevent consumers from obtaining justice through the courts. If a company is cheating or harming consumers, each individual’s injury, taken separately, may not warrant the filing of a lawsuit. Yet the collective injury to a large group of consumers could be quite substantial. The class action suit was developed to deal with this frequent circumstance. Unfortunately, the courts have often required would-be plaintiffs to notify thousands or millions of potential members of a class before the merits of a case can even be heard. Such expensive notification requirements can cause insuperable hardship for aggrieved consumers, often leaving them no option but to drop their cases. As a result, business abuses can go unpunished as long as no single consumer is ripped off too much and no criminal laws are broken.
Over nearly 20 years the Litigation Group has acquired such sophistication in taking cases to the U.S. Supreme Court that in 1990 it decided to share its wealth of experience by starting a special Supreme Court Assistance Project for public interest litigators. While the Solicitor General and State Attorneys General often appear before the U.S. Supreme Court, attorneys for the public interest or the poor are often small firm practitioners or legal services attorneys with no Supreme Court experience. Even in cases brought by established advocacy groups, lawyers often are not familiar with the peculiarities of Supreme Court litigation: how to persaude the Court not to hear a case that has been won in a lower court, how to write a brief, how to present oral argument if review is granted.
By identifying likely Supreme Court cases as early as possible and volunteering its legal talent to help them, the Supreme Court Assistance Project has helped numerous attorneys devise winning strategies for their cases. Given the vagaries of Supreme Court litigation, of course, it is difficult to assess just how influential the Litigation Group’s advice has been. Yet the impact has been discernible in many cases in such diverse areas as prisoners’ rights and First Amendment law to the federal bankruptcy code and state divorce law.
It has always been Nader’s conviction that long-standing injustices can be overcome only by exerting “focussed energy.” That driving force with respect to “access to justice” reforms is the Equal Justice Foundation. Nader helped launch EJF by sending a young lawyer, Craig Kubey, to visit a dozen law schools in 1977. His mission: to convince third-year law students to pledge 1 percent of their anticipated income as lawyers to help fight for less restrictive standing rules, modified class action notification rules, the awarding of attorneys’ fees and other reforms that make the courts more accessible and affordable to ordinary citizens. With pledges by 500 lawyers, EJF opened its doors in 1979 and has gone on to become a leading advocate for reforms in the legal system. The rationale and goals for the movement are set forth in a provocative collection of essays, Taking Ideals Seriously, edited by Robert L. Ellis (1981 and 1984). In the mid-1980s, the work of the EJF was folded into that of the National Association of Public Interest Law Foundations, which continues similar advocacy for greater citizen access to law.
Another group working to change the norms of the legal profession is Trial Lawyers for Public Justice (TLPJ), a group conceived by Ralph Nader and formed by members of the plaintiffs’ bar. Since 1982, TLPJ has harnessed the talents of trial lawyers to undertake novel, precedent-setting tort litigation against government and corporate wrongdoing. The concept behind the group is to deter future misconduct by winning big monetary awards and to help forge new public policy in the process. In its first five years, the group sued the W.R. Grace Corporation for its negligent disposal of toxic wastes in Woburn, Massachusetts, eventually settling the case for a reported $8 million. It has also sued Ford on behalf of a passenger injured in a car crash because the car lacked rear-seat shoulder harnesses, and sued lead manufacturers for failing to remove lead from paint products despite the availability of safer alternatives. (The lead often causes serious health problems among young children who eat paint chips that have peeled from old houses.)
In another effort to encourage public policy reforms through tort litigation, the TLPJ sponsor several clearinghouses to help victims pursue their cases more effectively. The clearinghouses provide technical information on automakers’ failure to install a proven crash-protection device, the airbag; the dangerous use of chlordane and heptachlor, two carcinogenic pesticides used against termites; and the anti-competitive practices of the insurance industry; among others.
Perhaps the most influential and enduring source of idealism for reforming the legal profession comes from young attorneys, Nader realized early on. For that reason, he has spent considerable time pricking the consciences of law students and flogging the complacency of law schools. “Possibly the greatest failure of law schools — a failure of the faculty — was not to articulate a theory and practice of a just deployment of legal manpower,” Nader wrote in 1969, adding: “Lawyers labored for polluters, not anti-polluters, for sellers, not consumers, for corporations, not citizens, for labor leaders, not rank and file, for, not against, rate increases or weak standards before government agencies, for, not against, judicial and administrative delay, for preferential business access to government and against equal citizen access to the same government….”
Traditional law schools suffocate idealism, Nader charges. They fail to consider who has access to lawyers, and they encourage students to adopt sterile if lucrative specialties of law that are trivial or downright anti-social. To give more depth to this assessment of law schools, Nader sponsored a book, The High Citadel: The Influence of Harvard Law School, by Joel Seligman (1978 ), a pungent historical review of the nation’s preeminent law school — “a stagnating phenomenon still clothed with ermine,” Nader writes acerbically — and a manifesto for a more challenging, socially relevant legal education.
Over the past twenty years, the public interest bar has shown that lawyers can be “redeployed” to serve far more valuable roles in American society. “Three good lawyers devoted to the public interest could overthrow the corrupt administration of a major American city,” Nader has often said. Indeed, ten good lawyers at the Litigation Group have changed the course of constitutional law, federal government and unbridled politics. The public interest bar as a whole has shown that the practice of law need not worship the icons of prestige, power and money that preoccupy so many in the profession. Law can be used for different ends, more humane values, and made to serve more egalitarian and democratic ideals.
If, as George Bernard Shaw held, “all professions are conspiracies against the laity,” Nader, Morrison and the Litigation Group have helped challenge the legal profession’s conspiratorial control of the gates of justice. Morrison concedes it has not earned any of them much money. But, he adds, with the gusto that makes him such a fierce litigator, “It has been an incredible amount of fun.”