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Since 1976, when the first environmental clinic was started at the University of Oregon’s law school, clinics have proliferated. Today, approximately one out of five law schools has an environmental clinic. With respect to clinics in general, the Association of American Law Schools Directory of Law Teachers lists “nearly 1400 full-time faculty teaching clinical courses.” Yet far from being an uncontroverted part of the academic landscape, clinics—particularly environmental clinics—have endured political blowback from challenging the environmentally destructive behavior of major economic interests. The effectiveness of environmental clinics is no greater than established environmental organizations—perhaps less effective given the length of time it takes for law students guided by faculty to mount a legal challenge and the complexity and difficulty of the cases these clinics take on. Nonetheless, environmental clinics repeatedly find themselves the target of efforts to shut them down, restricted in the types of cases and/or clients they can take on, and limited by supervisory boards with the power of case approval. Why is this? What is it about law students working for credits and grades that powerful interests find so threatening that they spend their resources on eliminating clinics instead of confronting them in court? Is the attack on clinics part of a broader attack on public access to the courts for righting environmental wrongs? Do these attacks reflect something about the nature of the attacker and her victim?

This article seeks to answer those questions, and concludes that clinics, like environmental organizations, function in an environment that is exceptionally hostile to the types of clients they represent and the cases they bring. This means that the claims environmental clinics file, like those filed by the national groups, will be met with a barrage of opposing filings based on a number of jurisdictional and other challenges enabled by the U.S. Supreme Court’s anti-public interest jurisprudence. Unlike the well-funded, publicly visible, and widely supported national organizations, environmental clinics are more vulnerable to less conspicuous attacks brought directly by the economic interests they challenge and their political supporters. Perhaps clinics unwittingly invite these attacks that in turn weaken their ability to function in this already hostile environment. The combination of the two can create a perfect storm for environmental clinics.

Even more curious is the role that lawyers play in attacks on clinics and the bullying techniques they use to discourage clinic-initiated litigation. There is something about students that brings the bully out in those who face them across the table that goes beyond the usual reasons given for these attacks—namely, that environmental clinics empower people who are otherwise without power to confront those who disregard their interest, that they are successful, and that they have enormous staying power and endless student enthusiasm. This behavior, although part of the general incivility problem afflicting the legal profession, is something more, and has to do with the nature of today’s lawyers and the context in which they learned how to be lawyers and practice law. Although many articles have been written about attacks on environmental clinics, none has identified this second reason—the milieu in which lawyers are educated and trained—and placed it in the broader context of judicial hostility toward environmental claims brought against established economic interests.

This article lays the groundwork for these conclusions by first briefly discussing the origins of clinics and clinical pedagogy in general. Then it describes the various attacks on the clinics, some consequences of those attacks, and how certain responses to those attacks run afoul of basic ethical precepts as well as notions of academic freedom. The third part of the article, after briefly listing some of the conventional reasons for these attacks, focuses on a less conventional one—namely, that they are fueled by the asocial behavior of lawyers who are in the vanguard of many of these attacks. It shows how such behavior is akin to that of a schoolyard bully who, in sensing a weaker opponent, acts out in ways that have been fodder for psychological literature. This part of the article also describes the various barriers the Court has erected that make it difficult for public interest litigants, particularly poorly funded and understaffed environmental clinics, to prosecute legal claims representing individuals who threaten the economic and political status quo. The article concludes that the more conventional explanation for the attacks against clinics are incomplete because they neither explain the persistence of the attacks nor show how the combination of intimidation and hostile judicial doctrine make it extremely difficult for environmental clinics to do their job.

Publication Citation

25 J. Envtl. L. & Litig. 249-301 (2010)