Public Interest Litigation Quotes

3. Serving Two Masters Derrick Bell has pointed out a third structure that impedes reform, this time in law. To litigate a law-reform case, the lawyer needs a flesh-and-blood client. One might wish to establish the right of poor consumers to rescind a sales contract or to challenge the legal fiction that a school district is desegregated if the authorities have arranged that the makeup of certain schools is half black and half Chicano (as some of them did in the wake of Brown v. Board of Education). Suppose, however, that the client and his or her community do not want the very same remedy that the lawyer does. The lawyer, who may represent a civil rights or public interest organization, may want a sweeping decree that names a new evil and declares it contrary to constitutional principles. He or she may be willing to gamble and risk all. The client, however, may want something different—better schools or more money for the ones in his or her neighborhood.

is dynamic. “Experts” frequently differ on scientific questions and their opinions can vary in accordance with and demands of politics, power, and financial self-interest. Nearly every lawsuit I have ever litigated pitted highly credentialed experts from opposite sides against each other, with all of them swearing under oath to diametrically antithetical positions based on the same set of facts. Telling people to “trust the experts” is either naive or manipulative—or both. All of Dr. Fauci’s intrusive mandates and his deceptive use of data tended to stoke fear and amplify public desperation for the anticipated arrival of vaccines that would transfer billions of dollars from taxpayers to pharmaceutical executives and shareholders. Some of America’s most accomplished scientists, and the physicians leading the battle against COVID in the trenches, came to believe that Anthony Fauci’s do-or-die obsession with novel mRNA vaccines—and Gilead’s expensive patented antiviral, remdesivir—prompted him to ignore or even suppress effective early treatments, causing hundreds of thousands of unnecessary deaths while also prolonging the pandemic

The Modus Operandi of THE REGULUS CONCLAVE as spelled out in 1853! “We hold such and such opinions upon one point only; and that one point is, mutual interest, and under that; 1st, that we can govern this nation; 2d, that to govern it, we must, subvert its institutions; and, 3d, subvert them we will! It is our interest; this is our only bond. Capital must have expansion. This hybrid republicanism saps the power of our great agent by its obstinate competition. We must demoralize the republic. We must make public virtue a by-word and a mockery, and private infamy to be honor. Beginning with the people, through our agents, we shall corrupt the State. “We must pamper superstition, and pension energetic fanaticism—as on ’Change we degrade commercial honor, and make success the idol. We may fairly and reasonably calculate, that within a succeeding generation, even our theoretical schemes of republican subversion may be accomplished, and upon its ruins be erected that noble Oligarchy of caste and wealth for which we all conspire, as affording the only true protection to capital. “Beside these general views, we may in a thousand other ways apply our combined capital to immediate advantage. We may buy up, through our agents, claims upon litigated estates, upon confiscated bonds, mortgages upon embarrassed property, land-claims, Government contracts, that have fallen into weak hands, and all those floating operations, constantly within hail, in which ready-money is eagerly grasped as the equivalent for enormous prospective gains. “In addition, through our monopoly of the manufacturing interest, by a rigorous and impartial system of discipline, we shall soon be able to fill the masses of operators and producers with such distrust of each other, and fear of us, as to disintegrate their radical combinations, and bring them to our feet. Governing on ’Change, we rule in politics; governing in politics, we are the despots in trade; ruling in trade, we subjugate production; production conquered, we domineer over labor. This is the common-sense view of our interests—of the interests of capital, which we represent. In the promotion of this object, we appoint and pension our secret agents, who are everywhere on the lookout for our interests. We arrange correspondence, in cipher, throughout the civilized world; we pension our editors and our reporters; we bribe our legislators, and, last of all, we establish and pay our secret police, local, and travelling, whose business it is, not alone to report to us the conduct of agents already employed, but to find and report to us others, who may be useful in such capacity. “We punish treachery by death!” (from YIEGER'S CABINET or SPIRITUAL VAMPIRISM, published 1853)

The problem, this book will argue, is not just that law schools generate so many bad ideas—mistaken and benighted ideas, impractical and socially destructive ideas—but that those ideas follow a predictable pattern. They confer power on legal intellectuals and their allies—at least the power to prescribe, often the power to litigate. The movement that results—whether couched as public interest law, as minority empowerment law, or as international human rights law—is in fact a bid for power, whether naked or cleverly disguised.

law schools generate so many bad ideas—mistaken and benighted ideas, impractical and socially destructive ideas—but that those ideas follow a predictable pattern. They confer power on legal intellectuals and their allies—at least the power to prescribe, often the power to litigate. The movement that results—whether couched as public interest law, as minority empowerment law, or as international human rights law—is in fact a bid for power, whether naked or cleverly disguised.

Bell’s activism did not come at the cost of his writing. A few years later he published two law review articles of startling originality that won him widespread attention in the law school world. The first was “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” published in Yale Law Journal in 1976. Bell had became convinced that the black community did not need—or, in many cases, want—busing, the school desegregation remedy that civil rights lawyers had been pursuing for at least a dozen years. Instead, they wanted better schools. This kind of talk was heresy within the NAACP, which at that time was staunchly committed to enforcing the mandate of Brown v. Board of Education, their great legal breakthrough. Bell sounded what turned out to be one of his signature themes: the conflict of interest inherent in much public interest litigation. American law requires a flesh-and-blood plaintiff, usually an ordinary person, with “standing”—a specific, concrete grievance with a specific actor or defendant. Much public interest litigation, however, is maintained by specialized litigation centers, like the NAACP Legal Defense Fund or the National Organization of Women. These litigators must represent victims of the policies they want to change. The idea is to file a case challenging the unjust policy, determined to take it to the Supreme Court in the hope that it will announce new law. In all this,

My experience at the Division of AIDS really opened my eyes about how the system really operated. The federal budget is a big trough to feed special interest groups. But if you become wise to it, open your mouth, and get on the wrong side of someone really powerful, they are out for blood. The government lawyers up, and they have unlimited resources to burn you. Truth may not be on their side, but they can throw every obstacle in your way to getting a fair hearing of your grievance. And you can’t get justice because litigation will drain you to your last penny. The system isn’t designed to help the aggrieved party. I couldn’t coerce Fauci for a deposition. He was too busy doing interviews and accepting awards. There were never any consequences for the perpetrators. They continued merrily in their careers. I had to start all over again. If they are determined to ruin your life, they can do it.

In the hands of good leaders, such a system can actually perform better than a democratic system that is subject to rule of law and formal democratic procedures like multiparty elections. It can make large, difficult decisions without being hampered by interest groups, lobbying, litigation, or the need to form cumbersome political coalitions or educate the public as to their own self-interest.

the fact of the matter is that information regarding Thomas’ criminal case was successfully screened out by the DOPT from the Committee. Had it not been for the Public Interest Litigations (PIL) filed, these facts would not have surfaced in the public domain. The government persisted in its defence of Thomas in the Supreme Court. It was only after the Supreme Court order of 3 March 2011 that the prime minister publicly confessed in Jammu, ‘There has been an error of judgment in CVC appointment and I take full responsibility.’ This was reiterated on 7 March 2011 in the Lok Sabha, and on 8 March in the Rajya Sabha, with a curious addition: ‘Until I went to the meeting of the Committee, I was not aware there was any such case of Palmolein and that it would involve corruption.’ He added that he became aware of the case only when Sushma Swaraj raised the issue in the meeting. He also informed the House that the notes for such committees are prepared ‘under the guidance of minister of state in charge of the DOPT.’ The honest answer should have been that the note which was prepared by the DOPT did not contain this conclusive information. Minister of State DOPT, Prithviraj Chavan, at a press conference in Pune on 8 March 2011, casually passed on the blame to the Kerala government, saying it was the latter that gave vigilance clearance for Thomas. This was strongly refuted on 9 March 2011 by V.S. Achuthanandan, the Kerala CM who accused Chavan of lying. Copies of official communication sent by Kerala to Delhi regarding Thomas’ corruption were being waved around by TV anchors. Chavan then said he was misquoted. But by whom? His own sound box in the live interview in Pune?

The gating resource here was not capital,” Thiel said. “The gating resource was the ideas and the people and executing it well. It’s not like lawsuits haven’t been brought in the past. It’s something that’s been done, so we were required to think very creatively about this space, what kind of lawsuit to bring.” Most of the ideas do not stand up to scrutiny, or to Thiel’s ambitions. A slap on the wrist from the FCC about affiliate commissions will accomplish little. Exploiting the financial misdeeds of the company would likely require an inside man, and this would be nasty, deceitful business. It wasn’t just a question of which strategy might actually win, it was also figuring out which one could actually do real damage. “It was important for us to win cases,” Thiel said. “We had to win. We had to get a large judgment. We did not want to bring meritless cases. We wanted to bring cases that were very strong. It was a very narrow set of context in which you could do that. You did not want to involve political speech, you did not want to involve anything that had anything remotely connected to the public interest. Ideally, our cases would not even involve the First Amendment at all.” The First Amendment was unappealing not because Thiel is a libertarian, though he is, but because as a strategist he understood that it was Gawker’s strongest and most entrenched position: we’re allowed to say anything we want. It challenges the legal system and conventional wisdom where they are the most clearly established. Forget the blocking and tackling of proof and precedent. At an almost philosophical level, the right to free speech is virtually absolute. But as Denton would himself admit to me later, free speech is sort of a Maginot Line. “It looks formidable,” he said, “it gives false confidence to defenders, but there are plenty of ways around if you’re nimble and ruthless enough.” That’s what Thiel was doing now, that’s what he was paying Charles Harder to find. Someone from Gawker would observe with some satisfaction to me, many years away from this period of preliminary strategizing from Thiel, that if Thiel had tried to go after Gawker in court for what it had written about him, litigating damages and distress from being outed, for example, he certainly would have lost. This was said as a sort of condemnation of the direction that Thiel ultimately did attack Gawker from. Which is strange because that was the point. The great strategist B. H. Liddell Hart would say that all great victories come along “the line of least resistance and the line of least expectation.” John Boyd, a fighter pilot before he was a strategist, would say that a good pilot never goes through the front door. He wins by coming through the back. And first, that door has to be located.