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Public Interest Litigation

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Senator Sheldon Whitehouse was on a roll yesterday, denouncing public interest litigation by conservative groups such as Pacific Legal Foundation in which test cases are initiated to advance a general point of law rather than being initiated by a client for his own interest. That's funny. Public interest litigation long predates PLF. Conservatives were already very late to the party when PLF was formed in 1973. Judge Kavanaugh's understated response was that this kind of litigation is conducted on both sides of the aisle. Actually, it is done much, much more on the left side.

Senator Whitehouse appeared to be disturbed by advertising for prospective clients for impact litigation. Shouldn't there be a law against that? Actually, there was, and the decision declaring it unconstitutional as applied to exactly this situation is one of the landmark cases in the history of the First Amendment.  See NAACP v. Button (1963); see also In re Primus (1978).

Senator Whitehouse also spoke of "hiring" clients and said they were typically "fired" after the litigation was completed. If he means the litigants are being paid to be litigants, that's a new one to me. I have not heard of such a practice. I would be curious to know if it actually goes on at any conservative legal foundation.

CJLF has only initiated litigation a few times. The nature of our work and our mission rarely makes initiating a suit appropriate. We have done so a few times, though. We do not often have individual clients. We generally appear in our own name. Still, there are a few cases where we have both initiated the litigation and represented a client.

For the record, CJLF has never "hired" a client. We have never paid anyone a penny to be a party or an amicus to litigation. The victims of crime whom we have represented have fully understood that the goal was to establish a rule of law for the benefit of all victims in similar circumstances. And we have never "fired" a client.

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The Senator’s comments may have an unintended irony. Cases such as Brown v Bd of Education, Griswold v Conn, and Roe v Wade are arguably test cases that had more to do with advancing general points of law rather thsn the actual personal interests of the individual clients. Indeed, Norma McCorvey (aka Roe) ultimately resented her legal representatives in Roe v Wade.

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