Student Posts

Amicus Advocacy: An Alternative Path in Impact Lit

Many of us in the LPS community are interested in impact litigation – indeed, analyzing how to construct an impact lit campaign was a centerpiece of Professor Coughlin’s Law & Public Service class for fellows this past spring. While affirmative litigation remains the focus of organizations like the ACLU, NAACP LDF, and the Brennan Center, amicus brief writing has become an important part of the practice, particularly when seminal cases reach the Supreme Court. These briefs provide the Court with extra-legal arguments and important real-world data that may not have been raised in the trial record.

As part of my 1L winter break pro bono, I was able to work on an amicus brief for the Supreme Court case of Zubik v. Burwell. That case involved a religious non-profit’s challenge to the Affordable Care Act’s contraception mandate, which required that employers provide contraception coverage without cost sharing to their employees. The non-profits argued that this violated their First Amendment rights to free exercise of religion. The lawyers I was working for were writing on behalf of numerous church-state scholars who sided with the government, arguing that providing a religious accommodation impermissibly shifted burdens onto non-adherents, violating the Establishment Clause. (If this has really piqued your interest, you can read the brief here.) Much of the pro-government amicus effort was coordinated by the ACLU, ensuring that the dozens of amicus briefs filed were not duplicative for the court.

While Zubik involved a brokered settlement by the court, likely to avoid a 4-4 split, amicus briefs in a number of other cases have been cited approvingly by the court, providing important facts for the majority opinion. (See, for example, the recent abortion decision Whole Woman’s Health v. Hellerstedt, in which the majority cited to nearly half a dozen amicus briefs showing that the Texas regulation at issue imposed an undue burden on a woman’s access to abortion.)

I found the amicus process to be a great way to get involved with a litigation campaign in law school, even (especially!) as a 1L. A lot of the faculty, particularly in the civil rights/civil liberties domain, work on briefs regularly and can use research support. The topics are usually fairly narrow, since they seek to expand upon the issues that were either not addressed or were only cursorily mentioned in the parties’ briefs, so you can get up to speed on the subject matter fairly quickly. The process is relatively short, so I was able to see the whole brief from beginning to end in just a few months, whereas a full piece of litigation can take years. For future litigators with many different practice/topic interests, the amicus system is a great way to get exposure to a lot of cutting-edge issues in the law. I never expected to work on a reproductive rights filing in the Supreme Court in law school – especially after just one semester here – but I’m so thankful that I did! The experience has really colored my elective choices and gave me an invaluable look to what an impact litigation career (or an impact litigation facet of an academic career) would really look like.

img_2692George is a 2L from New Jersey. He graduated from Duke University in 2013 with a degree in Economics, and hopes to become a federal prosecutor after law school. This past summer he interned at the United States Attorney’s Office for the District of New Jersey, and he is a member of the UVA Innocence Project Clinic. In his free time, George likes to play tennis, root for Duke basketball, struggle through the New York Times crossword, and watch stand up comedy.

Student Posts

Why Environmental Law is Public Service Law

Public Service Law is not a field whose boundaries can be cleanly demarcated based on the subject matter addressed, the type of client represented, or the policy positions taken by its practitioners. This much is obvious to members of the public service legal community, which includes prosecutors and defenders, government agencies and nonprofits, client-focused work and impact litigation.

What baffles me is that, despite this diversity, environmental lawyers are often considered public service lawyers as something of an afterthought, if at all. Environmental advocacy is ineligible for many public service grant and fellowship programs, and environmental lawyers are selected by the programs for which they are eligible relatively rarely, compared to lawyers from many other fields. As the single 2L member of the Law and Public Service Program planning to practice environmental law, I even feel a little out of place in our own program at times.

I have noticed two main reasons why the public service community has ignored environmental concerns. The first is that environmentalism has the reputation of being a cause for people who are out of touch with real, urgent problems like oppression, injustice, and poverty. Anyone who thinks he has time to worry about polar bears when people are losing their rights, livelihoods, and lives must be blinded by his privilege at best, and willfully ignorant at worst. I think this is a not-unwarranted, but serious and dangerous mischaracterization of environmentalism. Don’t get me wrong, I like watching nature documentaries and hiking just as much as the next Chaco-wearing hippie, but that’s not why I’m studying environmental law. I consider myself an environmentalist not in spite of or instead of, but because of my commitment to helping combat the oppression, injustice, and suffering experienced by so many of my fellow humans.

What the public service community must realize is that social injustice and environmental injustice often stem from the same sources, have the same consequences, and share the same solutions. The same greed and shortsightedness that wrecked the world’s economy in 2008 is on track to wreck the world’s climate in the coming decades. The consumerist impulse to seek, accumulate, and exploit ever more is just as damaging to the planet as it is to those who struggle to pay their bills and meet their basic needs while the one percent continue amassing wealth. Failing to consider the impact that our lifestyles have on our limited resources is like failing to consider the harm that our words and actions can cause, or the forms of privilege we enjoy, or the oppressive forces present in our culture. Tragedies like Flint, Michigan (which are far too common) highlight the connections between environmental, racial, and economic injustice, and these connections run much deeper than environmentalists or social activists typically acknowledge.

The second reason public service ignores environmentalism is that environmental harms seem attenuated, diffuse, probabilistic, and difficult to quantify or compare to other priorities. The result is that public interest lawyers focus all their efforts on addressing injustices that seem more urgent and directly felt. This problem is compounded by the frequently protracted nature of environmental litigation.

I understand that making environmental concerns a priority involves difficult choices and tradeoffs. My hope is simply that the public service community can come to see the costs on all sides of these tradeoffs with clear eyes. These include not just monetary costs, but ecological and human costs as well. There is no one right way of measuring and prioritizing these costs, but we must acknowledge them and begin to grapple with them.

To my mind, the most accurate and useful way to define public service law is in terms of the community of public service lawyers. We are fortunate to have a thriving public service community here at UVA Law, one small part of which is represented by the Law and Public Service Program. This community would be far stronger and better equipped to serve the public interest if it made environmentalism one of its core features. Of course, the reverse is also true. Environmental lawyers have a lot to learn from the broader public service community, and especially from groups that are in better touch with those experiencing oppression, poverty, and injustice, because this is exactly who environmentalists should strive to serve.

dennison-headshotJim is a 2L from Logan, Utah. He graduated from the University of North Carolina in 2013 with a degree in philosophy. He has done pro bono with Western Resource Advocates in Salt Lake City, Utah and spent the summer of 2016 working for the Southern Environmental Law Center in Birmingham, Alabama. Next summer, he will work for Environmental Defense Fund in Boulder, Colorado. In his spare time, he likes to climb rocks, ride his bike, and cook veggies on the grill.