IV. Public Interest Law Research Environment

Clinical education helps prepare motivated and talented students for public interest legal careers. These students will have different and in most cases far fewer resources than classmates who practice with corporate law firms. Criteria for selecting information and research sources for clinical teaching and service missions should be tailored to the kinds of routine and specialized research public interest lawyers do.91 Clinical research instruction should also address research conditions negatively affecting public interest lawyers and their clients. Citation rules and practices limiting the use of unpublished opinions and recent federal law (curtailing regulatory consideration of research studies often favorable to economically disadvantaged groups) pose special challenges. These conditions may limit new public interest lawyers, even those who are adept legal researchers, from fully exploiting the fruits of their research. Community information access, a vital part of collaborative lawyering, is also at risk because of these conditions.

A. Limited Citation Rules' Impact on Law and Society

The addition of a vast body of unpublished case law on Lexis and Westlaw and to a more limited extent on court web sites, expands research opportunities and expectations. Studies show that attorneys regularly read unpublished decisions and believe that it is incumbent upon them to do so.92 Often of uneven quality and limited as precedent, unpublished cases help sophisticated legal researchers craft additional arguments and gauge what a particular judge might do based on rulings in similar cases.93 Currently, the “2nd, 7th, 9th and Federal Circuits ban citation of unpublished opinions outright, while six other circuits discourage it.”94

Although the Internet's steadily increasing legal content has somewhat leveled the information resource playing field, limited citation rules and institutional litigant authority-limiting strategies negate much of these gains by roping off favorable precedent from many of society's disadvantaged.95 Stated from a legal ethics perspective: “The simple fact is that 'no citation' rules often unfairly compromise counsel's ability to effectively represent a client, whether at trial or on appeal.”96

1. An Inequitable Precedent System for “Marginalized Groups”

Penelope Pether contends that unpublished opinion practices and limited citation rules corrupt the “system of precedent” by “structurally subordinat[ing] some kinds of litigants and privilege[ing] others . . . .”97 “[R]epeat-player litigants” and “unethical judges” manipulate precedent at the expense of marginalized groups.98 Marginalized groups disadvantaged by “unpublication”99 and related practices include “pro se” plaintiffs, gays and lesbians, and [Marc Galanter's] “one-shotter” litigants: [e.g.,] abortion rights proponents, members of other minority groups, and indigent persons.100 Contrast these sobering assertions against the more familiar “concern about unfair, uneven access to unpublished opinions, which was the principle [public justification] for the promulgation of restrictive citation policies [before the Internet largely addressed the access problem].”101 The unfair, uneven access rationale sought protection for disadvantaged groups in the crafting of unpublished opinion rules. Pether's research suggests that private judicial practices undermined whatever uneven access protections restrictive citation rules initially afforded.102 Contrary to protecting rights, private judging eviscerated precedent for certain classes and generated mistrust of the legal system.103

Pether's historical mining of federal judicial civil and prisoner rights judicial case management reveals private judging practices she attributes to “a discourse of dismay and irritation at the volume of appeals emerging from civil rights litigants and prisoners making pro se postconviction appeals.”104 In an Appendix &[ldquo;Haynsworth Report”] to a 1972 published decision,105 Pether finds evidence in the Fourth Circuit's response to the volume of appeals problem to support her thesis that private judging undermines precedent. The crafting of a summary disposition procedure “for disposing of pro se postconviction appeals without the appointment of counsel, without hearing, and via unpublished opinions” provided dubious judicial oversight of the procedure and inadequate judicial protection of the system of precedent for this class of litigants.106 The procedure employed habeas clerks [who were also the 'advocates for the appellants'] to handle what amounted to half the court's new cases each year.107 The Haynsworth Report goes to great lengths to emphasize the “judicial involvement in the process.”108 After the clerks prepared memoranda and supporting materials, the judges took over, but it is unclear how much of the review of the habeas clerks' work was actually done by the judges or their [non-habeas] clerks.109 Neither pro se plaintiffs (seeking a fair shake) nor judges (seeking efficiency) appear satisfied. Pether notes a striking paradox in the Haynsworth Report's pains to document judicial oversight of summary disposition procedures.

The Report claims that “the postconviction cases disposed of without a formal hearing [in fact, without any hearing] require almost as much judicial time as if they were fully heard.” 110

In the case referencing the Haynsworth Report,111 the Fourth Circuit refused to treat as precedent an unpublished memorandum decision ordering a government provided transcript for pro se postconviction appeal because it conflicted with subsequent published decisions. The court appeared poised to address its unpublished doctrine:

This excellent petition for rehearing is deserving of our most careful attention. Not only is the petitioner entitled to a complete explanation of an apparent disregard of precedent, so also is the bar, and we are grateful to able and persistent counsel for affording us a long awaited opportunity to explain to the bar and the public some of our internal procedures in the disposition of what has become an enormous caseload. 112

What follows, according to Pether, is the court's circular reasoning for doing away with precedent for a particular class.113 Although the “court concedes that 'any decision is by definition a precedent,'”114 memorandum decisions fall outside the definition. “[I]t is 'reasonable to refuse to treat memorandum decisions [confined at the time to pro se cases] as precedent within the meaning of the rule of stare decisis.'”115 The court's rationale is based on an increase in the number of postconviction appeals (empirically provable) and the court's (subjective) perception that a “substantial proportion” of them are frivolous.116 Pether retorts: “[J]udicial experience and observation are here invoked as authority akin to judicial notice to substantiate the proposition that a 'substantial proportion . . . are frivolous.'”117

In an example from 2003, two of her students working on a same sex couple adoption case, where the jurisdiction's adoption statute is silent on the matter, found persuasive unpublished authority allowing a same-sex couple to adopt. Although noted as a matter of first impression in the home jurisdiction, the court rules did not allow plaintiffs to cite unpublished cases.118 Pether asks: “Why was it that those couples were allowed to adopt without their cases providing a precedent for others to rely on?” 119 The inequity of prohibiting citation to unpublished opinions is especially palpable in a case of first impression where persuasive authority counts most. As Dragich Pearson notes, when The Advisory Committee on Appellate Rules considered proposed new Rule 32.1 of the Federal Rules of Appellate Procedure (requiring courts to permit the citation of unpublished opinions), the Committee Note stated:

[p]arties have long been able to cite in the courts of appeals an infinite variety of sources [e.g., federal, state, and foreign case law, law review articles, treatises, newspaper columns, Shakespearean sonnets, advertising jingles] solely for their persuasive value'  . . . .   [I]t is difficult to justify a system that permits parties to bring to a court's attention virtually every written or spoken word in existence except those contained in the court's own “unpublished” opinions. 120

From a legal research perspective, Pether's incisive private judging critique alerts public interest practitioners to significant obstacles121 preventing them from applying research to their client's full benefit.122 In a similar vein, noting that attorneys in two Ninth Circuit cases were “ordered to show cause why they should not be sanctioned for citing unpublished cases in contravention of the rule,” Dragich Pearson warns that “attorneys may well find themselves in an impossible position if they believe that diligent representation, compliance with the requirements of Rule 11, or the duty to call relevant adverse authority to the court's attention requires citation of an unpublished decision.”123 As the next section examines, partial relief to the inequities restrictive citation rules pose to marginalized groups and their attorneys may be at hand.

2. Lifting the Ban on Citation to Unpublished Opinions

In September 2005, the Judicial Conference of the United States,124 the federal courts' major policy-making body, endorsed a proposed new Federal Appellate Rule that would allow lawyers to cite unpublished opinions under certain conditions.125 The proposed rule (to take effect on December 1, 2006126 if the Supreme Court approves it and if Congress leaves it untouched) would prevent the federal circuits from banning citation to unpublished federal decisions issued after 2006,127 but notably would not prevent the individual circuit courts from setting their own rules about the precedential value unpublished opinions can be given.128

Critiquing no-citation and other citation limiting rules and practices in clinical and other research instruction programs might inspire more public interest lawyers to participate in efforts to reform citation practices and rules that harm their clients. Teaching law students how to research precedent limiting court rules is an essential part of a public interest lawyer's advanced research education and routine practice checklist.129 As reforms in the unpublished arena take hold, advanced research instruction must prepare attorneys to cope with politically negotiated rule changes that on balance should improve research conditions discussed in this section, but that also raise the bar on technical and analytical legal research skills.

If proposed Appellate Rule 32.1 takes effect as currently recommended, consider how rule's prospective application130 to unpublished decisions issued after 2006 will require online researchers to distinguish between which federal court opinions they may cite and which they may not.131 Recognizing the cutoff date for the purpose of observing the rule should be simple enough, especially if Lexis and Westlaw clearly reference the new rule at the beginning of each case. Currently, cases displayed on both systems alert researchers to applicable unpublished rules for federal court of appeals opinions (and provide similar conventions for state unpublished cases).132

More significantly, attorneys should closely monitor citation patterns in unpublished federal court of appeals cases after 2006. Will judges cite pre-2007 unpublished cases knowing that the opinion they are writing may be cited (even if it is unpublished), but the older unpublished “authority” they are relying on may not, depending on the jurisdiction? On this possibility, consider these comments valuing unpublished opinions in the September 2005 Judicial Conference Report:

The fact is, however, that unpublished opinions are widely read, often cited by attorneys (even in circuits that forbid such citation), and occasionally relied on by judges (again, even in circuits that have imposed no-citation rules) . 133

It is hard to predict, but the potential for unanticipated or new kinds of precedent-related research anomalies should not be overlooked. For pro se litigants who increasingly have Internet access, the proposed rule opens up new avenues of research subject of course to their understanding and observing the rule's prospective application and limited scope i.e., leaving the assignment of precedential value exclusively to individual circuit determination.134 Clearly, precedent negating aspects of unpublished doctrine remain and require further reform.

B. Information Quality Act

Imagine researching a toxic torts claim, finding a government report essential to your case, and then not being able to use it. Procedural and evidentiary hurdles should be expected, but what if government information policy resulting from undue political influence creates insurmountable barriers to using the report? It is not hard to imagine the lengths well-heeled corporate defendants would go to keep unfavorable scientific studies out of the courtroom and outside the reach of agency rulemaking.135 Criticisms levied against The Information Quality Act (“IQA”) raise significant public interest information law concerns about this precise issue.136

The Act is fraught with political, economic and social implications for community decisionmaking. It subjects federal regulatory agency rulemaking use of scientific studies to reliability standards and screening procedures similar to district court judges' Daubert/Joiner mandate for “keeping 'junk science' out of the courtroom.”137 Keeping junk science out of the regulatory arena (and court) is undoubtedly sound policy, but McGarity warns that the IQA, as OMB interprets it,138

appears to be a perfect vehicle for [risk-producing industries] to attack [the] science underlying health and environmental regulatory decisionmaking,[similar to the strategy litigants use in Daubert challenges]. 139

McGarity argues that this “corpuscular approach,” already an effective “accountability-avoidance strategy” for these industries in preventing the application of health and safety protections in court, may now allow them to derail regulatory enactment of new or revised protections.140 McGarity's examples demonstrating this trend include a recent challenge to the EPA's “Guidance for Preventing Asbestos Disease Among Auto Mechanics:”141

With the newly available tool of the IQA to facilitate corpuscular attacks on government documents, the law firm of Morgan, Lewis & Bockius attempted in 2003 to force EPA to withdraw a 1986 publication aimed at protecting auto mechanics from asbestos-caused diseases. Who would go to the trouble of hiring a high-powered Washington D.C. law firm to launch a corpuscular attack on an aging guidance document? Companies who were the targets of toxic tort claims from thousands of auto mechanics who had contracted asbestos-related diseases in the workplace. 142

In the information age, defensive lawyering strategies to remove or rope off potentially damaging information should be anticipated. These and other similar information-related tactics should be explored in advanced research instruction in clinics. If one agrees with McGarity's IQA assessment, the Act, like the “private judging” practices Pether critiques, further skews the playing field against clients and communities clinics typically represent by disenabling information they sorely need to fully participate in decisions and actions affecting their well-being.143

C. Community Information Resources

Clinics that teach and promote collaborative lawyering include their clients in informed decisionmaking.144 Similar impediments to public interest lawyers' research jeopardize community information resources essential to informed decisionmaking. In an information-driven economy, the digital divide marks the gap between those people and communities who can access and make effective use of information technology and those who cannot.145 When information access is unequal (or cost prohibitive), poorer communities are further isolated from participating meaningfully in democratic life.

True “democratic participation” entails more than self-governance; it makes for a “democratic culture” in which “ordinary people gain a greater say over the institutions and practices that shape them and their future.146 Attorneys embracing this view facilitate democratic participation and change. López links knowledge to change bringing us to the core of the digital divide: “disparities in knowledge reinforce market, democratic, and civil inequalities.”147 The maxims “knowledge is power” or “information is power,” even if empirically suspect, connote motivation and power to effect change.

Consumer, feminist, and educational equity movements, to name only some, regularly invoked the expression [knowledge is power]  . . .  . They stressed how access to sophisticated and intelligible information could improve-even dramatically improve-individual decision making, available choices, and the overlapping systems that create and distribute opportunities. 148

Access to sophisticated and intelligible information similarly empowers community participation and decisionmaking. An examination of lawyer/community information seeking collaborations discussed in the clinical literature provides additional reasons for enriching the clinical curriculum with advanced research instruction.

1. Information Partnerships (Lawyer/Community)

Piomelli's environmental justice scenario values community information resources. Surrounding the affluence of San Francisco are poor neighborhoods home to the city's two electric power plants and most of its industrial facilities.149

An out-of-state energy conglomerate is proposing to expand its existing power plant in the neighborhood. The new generator will produce much more electric power for the city  . . .  and much more pollution for the neighborhood. 150

Power plant permitting battles are waged before the state energy commission. “The commission holds informational hearings, accepts discovery requests, and allows interested groups to intervene.”151 One of the issues the commission staff has identified that will be of particular interest to the community is “environmental justice/public health, aris[ing] from the disproportionate concentration of industrial uses in the neighborhood and its rates of respiratory disease and cancers.”152

Piomelli compares conventional and collaborative lawyering functions. The conventional approach emphasizes the attorney's “knowledge of the legal system,” expertise in substantive and procedural law, and inclination to work largely alone, consulting experts as needed.153 The focus is on providing technical legal skills to overcome the imbalance of power between those representing the energy conglomerate's interests and the community that depends on attorneys to protect its interests.154 The collaborative approach adds a community building dimension.155 Although incorporating the same technical legal skills in the conventional approach, collaborative lawyering would be much less hierarchical and solitary.156 Piomelli “would build and use productive partnerships with clients and other actors in the neighborhood or allies outside it to collectively fight the conglomerate's plan.”157 [He] would aim not just to defeat this particular power plant application, but “also to enhance the clients' and neighborhood's prospects in future struggles as well.”158 Bringing his full legal arsenal to bear, he would engage in legal maneuvering and strategizing but “with a different orientation-not just to work against the plant's expansion, but also with [his] clients and neighborhood and potential allies.”159

In a collaborative model, the lawyer, clients and other members of the neighborhood “work together to frame strategies that all . . .  would implement . . . shar[ing] the hard work and limelight.”160 Several of the“partnerships” Piomelli describes require community accessible research and information seeking mechanisms and present opportunities for including students in community building.161

[The] collaborative lawyer engages with clients and neighborhood residents as partners in a joint effort: partners in fact investigation (locating and mapping toxic and polluting sites, as well as identifying residents with respiratory health problems); partners in identifying people from whom they can learn ; partners in recruiting potential allies  . . .  partners in 'encouraging city officials to conduct a formal health assessment  . . .  partners in presenting their neighborhood-not just in words, but through their actions-as unwilling to accept additional unfair health burdens  . . .  and partners in learning from similar efforts elsewhere to combat undesirable land uses . 162

In all of these efforts, “a collaborative lawyer would seek to reshape the orientation of her lawyering practice; striving not simply to win 'the case,' but also to facilitate the clients' and neighborhood's active informed exercise of their democratic liberties.”163 Potentially, each of Piomelli's partnering initiatives benefits from advanced research practices this article suggests incorporating in clinical courses. Valuable contacts and models to help this community mobilize against the proposed power plant are readily available on the Internet. A Google search for power plants and environmental justice brings up sweeping grass roots efforts to reject proposed power plants in New York,164 Connecticut165 and the Southwest,166 among others. Communities that have just learned about proposed power plants encroaching on their neighborhoods will find in-depth accounts of legal proceedings and legal issues, articles documenting associated health hazards, key contacts, and miscellaneous efforts and events to encourage individual and group participation.

Community mobilization examples on the power plant opposition web sites may inspire similar local initiatives.167 They also provide valuable teaching opportunities for exposing new lawyers to broader practice horizons to bring about meaningful social change.168 Law and legal remedies are essential, but not sufficient, components of social change. Lawyers must also be adept at influencing decision making in non-legal contexts.

While collaborative lawyers do not by any means reject the importance of the court system or administrative adjudication, they insist that lawyers must recognize both the strengths and limitations of such institutions. Lawyers need to understand and convey the remedies the law can provide, the norms and mechanisms it will use in doing so, and also the ways in which a legal framing of a situation can change the nature and contours of a dispute. Collaborative lawyers must be adept at helping clients to successfully navigate these judicial and administrative arenas. But they also strive to be alert to, and skilled in taking advantage of, opportunities to engage in other arenas of persuasion : in other public and political settings, in the media, and in networks of relationships within and between communities. 169

The power plant opposition sites model several opportunities to engage in other arenas of persuasion through information sharing, research and advocacy training, and community activities.170

Examples like these of large-scale community mobilization efforts are indicative of the kinds of information that can be found on the Internet to promote community building and problem solving skills on many fronts.171 Clinics can use these sites as teaching tools in student training and community outreach efforts.172 Although Piomelli cautions against “empowerment” as a collaborative lawyering objective,173 “empowerment,” in the discrete context of improved community access to information, articulates an egalitarian advancement in lawyer/community relations vital to collaborative lawyering.174

2. Information Partnerships at Risk

Community information resources noted in the previous section may be weakened because of government-sponsored information limiting policies. Environmental justice advocates share McGarity's concerns about these policies.175 The Center for Progressive Regulation “CPR” promotes public participation in “fora where important environmental decisions [are made].”176 Because of unequal bargaining power (limited funds, time, and resources compared to conventional stakeholders) meaningful community participation is difficult resulting in bad decisions harmful to the public health.177 The CPR argument against the IQA (and other information limiting policies) seeks to protect essential community information resources.

Because local environmental justice organizations operate on such slender budgets, they must rely heavily upon publicly available information  . . . .   The administration's expansive interpretation of exemptions under [FOIA], the information-limiting features of the Homeland Security law  . . .  and the administration's aggressive implementation of the Data [sic] Quality Act [IQA]  . . .  threaten to curtail the amount of information available to people of color and poor persons and other groups. 178

In this same passage, the CPR identifies specific threats to the community/lawyer information partnerships suggested in Piomelli's environmental justice scenario.179

In concert these initiatives may allow firms to withhold information about hazardous emissions, accidents, and other risks posed by power plants, nuclear facilities, refineries, chemical plants, and other large facilities. Historically, communities where environmental justice is an issue have relied heavily upon publicly available information not only to find out about the risks they face, but also to help demonstrate racially disparate patterns of exposure. As these communities have learned in the past two decades, information is power, and the move toward greater secrecy will surely serve to disempower our most environmentally vulnerable communities. 180

Public interest lawyers at a minimum need to be aware of negative research conditions in their field, and ideally should challenge laws and practices that create such conditions.