Legal Services Corporation Affirmative
Dartmouth 2K9
1
LSC Aff (1/18) ............................................................................ 2
LSC Aff (2/18) ............................................................................ 3
LSC Aff (3/18) ............................................................................ 4
LSC Aff (4/18) ............................................................................ 5
LSC Aff (5/18) ............................................................................ 6
LSC Aff (6/18) ............................................................................ 7
LSC Aff (7/18) ............................................................................ 8
LSC Aff (8/18) ............................................................................ 9
LSC Aff (9/18) .......................................................................... 10
LSC Aff (10/18) ........................................................................ 11
LSC Aff (11/18) ........................................................................ 12
LSC Aff (12/18) ........................................................................ 13
LSC Aff (13/18) ........................................................................ 14
LSC Aff (14/18) ........................................................................ 15
LSC Aff (15/18) ........................................................................ 16
LSC Aff (16/18) ........................................................................ 17
LSC Aff (17/18) ........................................................................ 18
LSC Aff (18/18) ........................................................................ 19
**Env Justice Adv**
Inherency: EJ .......................................................................... 20
Class Action Key to EJ .............................................................. 21
**Predatory Lending Adv**
Class Action Key to Prevent Predatory Lending............................... 22
Class Action Key to Prevent Predatory Lending ............................... 23
Class Action Key to Prevent Predatory Lending ............................... 24
Predatory Lending => Econ collapse............................................. 25
Predatory Lending => Econ collapse............................................. 26
Predatory Lending => Econ collapse............................................. 27
**Justice Gap Adv**
Inherency: First Amendment ....................................................... 28
**Obesity Add-on**
Low-income persons at highest risk .............................................. 30
Low-income persons at highest risk .............................................. 31
Class Action Key to Solve Obesity................................................ 34
Class Action Key to Change Fast Food Industry .............................. 35
Obesity Impact - Causes Economic Collapse .................................. 36
Obesity Impact – Kills More than War ........................................... 37
Obesity Impact – 300,000 a year.................................................. 38
Class Action Key to Take Down Fast Food ..................................... 39
Obesity Litigation Spills Over ...................................................... 40
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**Welfare Reform Adv**
Inherency: Welfare Reform .......................................................... 41
Inherency: Welfare Reform .......................................................... 42
Inherency: Welfare Reform .......................................................... 44
Class Action Litigation Key for Welfare Reform ................................ 45
Class Action Key to Welfare Reform .............................................. 46
**Misc/Add-Ons**
Restrictions own Immigrants ........................................................ 47
Restrictions own Prisoners .......................................................... 48
Restrictions own Women and Minorities ......................................... 49
**A2: Bad Args**
A2: States – Can’t Solve ............................................................. 50
A2: States – Can’t Solve – Restriction spillover ................................ 51
A2: States – Can’t Solve – Poison Pill ............................................ 52
A2: States – Perm ..................................................................... 53
A2: States – Courts would Pre-empt .............................................. 54
A2: States – Commerce Clause.................................................... 55
Politics: Plan = Partisan .............................................................. 56
Politics: Plan = Bipartisan............................................................ 57
Politics: Plan = Popular with Legal Lobby ....................................... 58
Politics: Plan = Popular .............................................................. 59
Politics: Conservatives Hate ........................................................ 60
Politics: Win for Obama .............................................................. 61
LSC key to Welfare Reform ......................................................... 62
**Case Extensions**
Inherency: Restrictions Now ........................................................ 63
Inherency: Restrictions Now ........................................................ 64
Inherency: Restrictions Now ........................................................ 65
Inherency: Lack of Lawyers Now .................................................. 66
Class Action Key: General .......................................................... 67
Class Action Key: General .......................................................... 68
Class Action Key: General .......................................................... 70
Class Action Key: General .......................................................... 71
Class Action Key for the Poor ...................................................... 73
Class Action Key for the Poor ...................................................... 74
Spillover Evidence ..................................................................... 76
Courts Key .............................................................................. 77
Solvency: Lifting Restrictions Key ................................................. 79
A2: Spending ........................................................................... 80
Disads are Non-Unique .............................................................. 81
**Topicality**
Topicality - Legal Services = Social Services ................................... 82
Topicality – Legal Services = Social Services .................................. 83
Topicality - Legal Services Corporation = Social Service .................... 84
1
Legal Services Corporation Affirmative
Dartmouth 2K9
2
LSC Aff (1/18)
Contention 1: The Status Quo
Restrictions on the Legal Services Corporation deny critical legal services to the most needy
Henderson and Zirkin, President and VP of LCCR, 6/24
(Wade Henderson and Nancy Zirkin, President and Vice President of Leadership conference on civil rights, 2009)
Restrictions on the LSC imposed by Congress are unnecessary and have hampered LSC's ability to
deliver legal services to those most vulnerable. Restrictions barring legal aid attorneys from collecting
attorneys' fees, prohibiting legal services clients from participating in class action lawsuits, and
limiting the use of even non-federal monies – roughly $490 million in private and non-federal loans are
tied to federal restrictions - have severely impacted the ability of the LSC to effectively and efficiently
deliver legal services to individuals who most need legal assistance.
These restrictions preclude integral structural reform through class action lawsuits
Shepard, North Carolina law student, 2009
(Kris Shepard, edited by David Goldfield, “Rationing Justice”, March 2009)
Legal services attorneys handled 1.7 million CELSQS in 1995, then 1.4 million in 1996, a decrease of
nearly 20 percent." As they had after the budget cut of IQBI, local programs in the Deep South adapted to the new fiscal
realities by decreasing cases and services and. in some cam. Reaching out for alternative sources of Funding. The Atlanta
Legal Aid Society, under the leadership of Steve Gottlieb, became particularly adept at fund- raising among the private
bar." In spite of such efforts, retrenchment affected all local programs, and the Cuts proved devastating for programs that
relied heavily on LSC funding, such as those in Mississippi and Alabama. More drastic than the budget cuts.
however, was the new slate of restrictions on the types of cases poverty lawyers could handle.
Conservative opponents finally achieved their long-sought goal of restricting representation to individual clients, rather
than groups of low-income Americans, by making it illegal for legal services attorneys to participate in class
action lawsuits which had been central to poverty lawyers "law reform" strategies since the 1960s. Other
restrictions ended legal services advocacy of many aliens and all prisoners as well as strengthened limitations on lobbying.
Furthermore, the same Congress that ended the federal entitlement to welfare made it illegal for poverty lawyers to
challenge these reforms? To be sure, legal services lawyers confronted many of the same issues they had
for three decades, but the legislative events of the mid-1990s promised to reshape poverty law practice
once again .
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Legal Services Corporation Affirmative
Dartmouth 2K9
3
LSC Aff (2/18)
Thus the plan:
The Supreme Court of the United States should rule in the next available and appropriate test case that
restrictions on recipients of Legal Service Corporation funding concerning class action lawsuits and the
claiming of attorney’s fees are unconstitutional under the First Amendment.
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3
Legal Services Corporation Affirmative
Dartmouth 2K9
4
LSC Aff (3/18)
Contention 2: Environmental Justice
Environmental justice communities lack the necessary legal resources to reject polluting industries
Meagan Elizabeth Tolentino Garland 07; Garland - Attorney, Baker & McKenzie, LLP, San Diego. The author conducted the
research and writing for this article in 2005 while a student at Boston College Law School; “Addressing Environmental justice in
criminal sentencing process: are environmental justice communities “vulnerable victims” under 3A1.1(B)(1) of the federal sentencing
guidelines in the post united states v. booker era?” Albany Law Environmental Outlook Journal,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7006030731&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7006030734&cisb=22_T7006030733&treeMax=true&treeWidth=0&csi=22
1806&docNo=10
Courts have looked to the victim(s)' level of sophistication (e.g., legal, financial, political resources available to
them when dealing with the defendant) to assess requisite vulnerability. n230 In United States v. Esterman, the court
rejected the prosecution's claim that the victim's limited command of English rendered him [*39] unsophisticated and therefore
vulnerable. n231 The court found that the victim had a plethora of resources available to him despite his inability to speak English. n232
In fact, the court concluded that the victim, "upon learning that Esterman was siphoning funds ... , had no trouble promptly dispatching
a deputy and exploring a variety of self-help options for a full three months before turning to the police and the courts." n233 The court
further reasoned that true vulnerable victims do not have henchmen at their beck and call; they do not persuade those who have
defrauded them to sign promissory notes; nor do they flout the possibility of contract-killings with third parties, and then file police
and civil complaints when payments on the note are not made. n234 Conversely, a jury hearing a case involving a victimized EJ
community could consider the fact that most EJ communities do not have the legal or political resources available to
pose a "credible threat" much less "take political or legal action" as mentioned in the survey of 200 corporate officials.
n235
Further, a court could reason that "without ... technical or political sophistication ... poor and minority communities are more
attractive as sites [for LULUs and hazardous wastes facilities] than white and affluent communities." n236 In fact, it is settled that
many EJ communities do "not have sufficient resources to pay for the scientific expertise necessary to realizing
the potential presented by environmental laws [and] ... [do] not have sufficient legal resources necessary to
realizing the potential presented by environmental laws." n237 Consequently, meaningful community
involvement in matters involving polluters is not a reality in many EJ communities. n238 In other cases, courts looked
to the victim(s)' lack of knowledge in a particular area (e.g., finance) and determined that an "overwhelming" lack of sophistication in
a particular area may contribute to the victim's vulnerability. n239 Similarly, because of [*40] the lack of legal sophistication or access
to legal counsel, many EJ communities lack the force to reject LULUs and polluting industries in their
communities as a result of the NIMBY phenomenon. n240 Moreover, the fact that most hazardous waste facilities and
LULUs are pushed out of communities inhabited by the general population and into EJ communities is evidence
that the general population, unlike many EJ communities, have more resources to avoid these offenses. n241
Accordingly, many EJ communities neither have the "self-help" options available, nor the "henchmen at their beck
and call" to mount a strong defense against potential polluters. n242 As Jeffery Cluett points out in his article, Two Sides of
the Same Coin: Hazardous Waste Siting on Indian Reservations and in Minority Communities: Political and economic resources are
inextricably intertwined with environmental activism and the ability to get results. "Those ... who have greater access, who know how
to tweak their Congress-people to do something, are more likely to get the attention of very busy people. And the people with greater
know-how are generally those with greater political and economic resources... . ' n243 A jury and judge could likely be persuaded that
EJ communities facing issues of historic non-inclusion and lack of meaningful involvement in important decision making processes
are precisely the vulnerable victims section 3A1.1(b)(1) protects. n244 In fact, according to the court in United States v. Parolin, the
""vulnerable victim' sentencing enhancement is intended to reflect the fact that some potential crime victims have a lower than
average ability to protect themselves from the [*41] criminal."
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Legal Services Corporation Affirmative
Dartmouth 2K9
5
LSC Aff (4/18)
And, lack of environmental justice is akin to environmental racism and ensures global ecological collapse
and the total destruction of humanity.
Bunyan Bryant, Professor in the School of Natural Resources and Environment, and an adjunct professor in the Center for AfroAmerican and African Studies at the University of Michigan, 1995, Environmental Justice: Issues, Policies, and Solutions, p. 209-212
Although the post-World War II economy was designed when environmental consideration was not a problem, today this is no
longer the case; we must be concerned enough about environmental protection to make it a part of our economic design. Today,
temporal and spatial relations of pollution have drastically changed within the last 100 years or so. A hundred years ago we
polluted a small spatial area and it took the earth a short time to heal itself. Today we pollute large areas of the earth – as
evidenced by the international problems of acid rain, the depletion of the ozone layer, global warming, nuclear meltdowns, and
the difficulties in the safe storage of spent fuels from nuclear power plants. Perhaps we have embarked upon an era of
pollution so toxic and persistent that it will take the earth in some areas thousands of years to heal itself. To
curtail environmental pollutants, we must build new institutions to prevent widespread destruction from pollutants that know no
geopolitical boundaries. We need to do this because pollutants are not respectful of international boundaries; it does little good if
one country practices sound environmental protection while its neighbors fail to do so. Countries of the world are
intricately linked together in ways not clear 50 years ago; they find themselves victims of environmental
destruction even though the causes of that destruction originated in another part of the world. Acid rain,
global warming, depletion of the ozone layer, nuclear accidents like the one at Chernobyl, make all countries
vulnerable to environmental destruction. The cooperative relations forged after World War II are now obsolete. New
cooperative relations need to be agreed upon – cooperative relations that show that pollution prevention and species
preservation are inseparably linked to economic development and survival of planet earth. Economic
development is linked to pollution prevention even though the market fails to include the true cost of pollution in its pricing of
products and services; it fails to place a value on the destruction of plant and animal species. To date, most industrialized nations,
the high polluters, have had an incentive to pollute because they did not incur the cost of producing goods and services in a
nonpolluting manner. The world will have to pay for the true cost of production and to practice prudent stewardship of our
natural resources if we are to sustain ourselves on this planet. We cannot expect Third World countries to participate in debt-fornature swaps as a means for saving the rainforest or as a means for the reduction of greenhouse gases, while a considerable
amount of such gases come from industrial nations and from fossil fuel consumption. Like disease, population growth is
politically, economically, and structurally determined. Due to inadequate income maintenance programs and social security,
families in developing countries are more apt to have large families not only to ensure the survival of children within the first
five years, but to work the fields and care for the elderly. As development increases, so do education, health, and birth control. In
his chapter, Buttel states that ecological development and substantial debt forgiveness would be more significant in alleviating
Third World environmental degradation (or population problems) than ratification of any UNCED biodiversity or forest
conventions. Because population control programs fail to address the structural characteristics of poverty, such programs for
developing countries have been for the most part dismal failures. Growth and development along ecological lines have a better
chance of controlling population growth in developing countries than the best population control programs to date. Although
population control is important, we often focus a considerable amount of our attention on population problems of developing
countries. Yet there are more people per square mile in Western Europe than in most developing countries. “During his/her
lifetime an American child causes 35 times the environmental damage of an Indian child and 280 times that of a Haitian child
(Boggs, 1993: 1). The addiction to consumerism of highly industrialized countries has to be seen as a major culprit, and thus
must be balanced against the benefits of population control in Third World countries. Worldwide environmental
protection is only one part of the complex problems we face today. We cannot ignore world poverty; it is
intricately linked to environmental protection. If this is the case, then how do we deal with world poverty? How do we
bring about lasting peace in the world? Clearly we can no longer afford a South Africa as it was once organized, or ethnic
cleansing by Serbian nationalists. These types of conflicts bankrupt us morally and destroy our connectedness with one another
as a world community. Yet, we may be headed on a course where the politically induced famine, poverty, and chaos of Somalia
today will become commonplace and world peace more difficult, particularly if the European Common Market, Japan, and the
United States trade primarily among themselves, leaving Third World countries to fend for themselves. Growing poverty
will lead only to more world disequilibrium to wars and famine – as countries become more aggressive and cross
international borders for resources to ward off widespread hunger and rampant unemployment. To tackle these problems requires
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LSC Aff (5/18)
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a quantum leap in global cooperation and commitment of the highest magnitude; it requires development of an international tax,
levied through the United nations or some other international body, so that the world community can become more involved in
helping to deal with issues of environmental protection, poverty, and peace. Since the market system has been bold and flexible
enough to meet changing conditions, so too must public institutions. They must, indeed, be able to respond to the rapid
changes that reverberate throughout the world. If they fail to change, then we will surely meet the fate of
the dinosaur. The Soviet Union gave up a system that was unworkable in exchange for another one. Although it has not been
easy, individual countries of the former Soviet Union have the potential of reemerging looking very different and stronger. Or
they could emerge looking very different and weaker. They could become societies that are both socially and environmentally
destructive or they can become societies where people have decent jobs, places to live, educational opportunities for all citizens,
and sustainable social structures that are safe and nurturing. Although North Americans are experiencing economic and social
discomforts, we too will have to change, or we may find ourselves engulfed by political and economic forces beyond our control.
In 1994, the out-sweeping of Democrats from national offices may be symptomatic of deeper and more fundamental problems. If
the mean-spirited behavior that characterized the 1994 election is carried over into the governance of the country, this may only
fan the flames of discontent. We may be embarking upon a long struggle over ideology, culture, and the very heart and soul of
the country. But despite all the political turmoil, we must take risks and try out new ideas – ideas never
dreamed of before and ideas we thought were impossible to implement. To implement these ideas we must
overcome institutional inertia in order to enhance intentional change. We need to give up tradition and “business as
usual.” To view the future as a challenge and as an opportunity to make the world a better place, we must be willing to
take political and economic risks. The question is not growth, but what kind of growth, and where it will take place. For
example, we can maintain current levels of productivity or become even more productive if we farm organically. Because of
ideological conflicts, it is hard for us to view the Cuban experience with an unjaundiced eye; but we ask you to place political
differences aside and pay attention to the lyrics of organic farming and not to the music of Communism. In other words, we must
get beyond political differences and ideological conflicts; we must find success stories of healing the planet no matter where they
exist – be they in Communist or non-Communist countries, developed or underdeveloped countries. We must ascertain what
lessons can be learned from them, and examine how they would benefit the world community. In most instances, we will have to
chart a new course. Continued use of certain technologies and chemicals that are incompatible with the
ecosystem will take us down the road of no return. We are already witnessing the catastrophic destruction
of our environment and disproportionate impacts of environmental insults on communities of color and
low-income groups. If such destruction continues, it will undoubtedly deal harmful blows to our social, economic, and
political institutions. As a nation, we find ourselves in a house divided, where the cleavages between the races
are in fact getting worse. We find ourselves in a house divided where the gap between the rich and the poor has increased. We
find ourselves in a house divided where the gap between the young and the old has widened. During the 1980s, there were few
visions of healing the country. In the 1990s, despite the catastrophic economic and environmental results of the 1980s, and
despite the conservative takeover of both houses of Congress, we must look for glimmers of hope. We must stand by what we
think is right and defend our position with passion. And at times we need to slow down and reflect and do a lot of soul searching
in order to redirect ourselves, if need be. We must chart out a new course of defining who we are as a people, by redefining our
relationship with government, with nature, with one another, and where we want to be as a nation. We need to find a way of
expressing this definition of ourselves to one another. Undeniably we are a nation of different ethnic groups and races, and of
multiple interest groups, and if we cannot live in peace and in harmony with ourselves and with nature it bodes ominously for
future world relations. Because economic institutions are based upon the growth paradigm of extracting and
processing natural resources, we will surely perish if we use them to foul the global nest. But it does not
have to be this way. Although sound environmental policies can be compatible with good business practices and quality of
life, we may have to jettison the moral argument of environmental protection in favor of the self-interest argument, thereby
demonstrating that the survival of business enterprises is intricately tied to good stewardship of natural
resources and environmental protection. Too often we forget that short-sightedness can propel us down a
narrow path, where we are unable to see the long-term effects of our actions. The ideas and policies discussed in this book are
ways of getting ourselves back on track. The ideas presented here will hopefully provide substantive material for discourse.
These policies are not carved in stone, nor are they meant to be for every city, suburb, or rural area. Municipalities or rural areas
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LSC Aff (6/18)
<<<CONTINUED, NO TEXT DELETED>>>
should have flexibility in dealing with their site-specific problems. Yet we need to extend our concern about local
sustainability beyond geopolitical boundaries, because dumping in Third World countries or in the atmosphere today
will surely haunt the world tomorrow. Ideas presented here may irritate some and dismay others, but we need to make some
drastic changes in our lifestyles and institutions in order to foster environmental justice. Many of the policy
ideas mentioned in this book have been around for some time, but they have not been implemented. The struggle for
environmental justice emerging from the people of color and low-income communities may provide the
necessary political impulse to make these policies a reality. Environmental justice provides opportunities
for those most affected by environmental degradation and poverty to make policies to save not only
themselves from differential impact of environmental hazards, but to save those responsible for the lion’s
share of the planet’s destruction. This struggle emerging from the environmental experience of oppressed people brings forth a new
consciousness – a new consciousness shaped by immediate demands for certainty and
solution. It is a struggle to make a true connection between
humanity and nature. This struggle to resolve environmental problems may force the nation to alter its priorities; it may force the
nation to address issues of environmental justice and, by doing so, it may ultimately result in a cleaner and healthier environment
for all of us. Although we may never eliminate all toxic materials from the production cycle, we should at least have that as a goal.
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Legal Services Corporation Affirmative
Dartmouth 2K9
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LSC Aff (7/18)
Class action lawsuits key to environmental justice litigation
Marya Rose, Managing Editor, Boston College Third World Law Journal, 1997 (BOOK REVIEW: Tort Reform for a Civilized
Society? Implications of Tort Reform for Toxic Tort Lawsuits: A Civil Action.” Boston College Third World Law Journal. 17 B.C.
Third World L.J. 133. Lexis //ZE)
Jonathan Harr may never have had a case to write about if the families in Woburn had not been able to file a class action suit.
Through the class action device, all toxic tort victims can join together into a single lawsuit. 52 In a typical class action suit, a
large class of persons [*139] who are similarly situated in regard to the case are represented by either a small group or a single
member of the class. 53 Toxic torts are frequently ideal for joined litigation because they often involve "mass torts" in which
large numbers of individuals are injured through the same pattern of events. 54 In fact, the majority of environmental cases are
filed as class action suits. 55 One reason that environmental cases are often filed as class actions is that joinder of parties and
joinder of claims enable plaintiffs in expensive cases to pool their resources with those of other plaintiffs facing the same
problem. 56 Additionally, judicial efficiency is better served by joined or class actions. 57 When only one lawsuit is filed on
behalf of all the victims of the pollution, the basic underlying facts are resolved only once, which reduces the court's workload.
58 Although the only current federal reform that expressly restricts class actions applies solely to shareholder suits, 59 less overt
reforms have been successful in limiting the use of class actions by poor and minority people. The most obvious example of this
trend is the attempt by the 104th Congress to eradicate the Legal Services Corporation. 60 While the Legal Services Corporation
was not totally eliminated, an amendment to a spending bill now bars Legal Services lawyers from taking cases involving class
actions. 61 Second, rules against aggregating disputed sums in order to meet minimum diversity requirements in federal court
have discouraged the use of class actions. 62 These rules function to reduce court access 63 of plaintiffs from diverse
jurisdictions who have individually small injuries, but collectively large ones. A third [*140] attack on the use of class actions is
embodied in distribution of awards. 64 For example, in a recent California case, a superior court judge allowed a defendant to
keep all the money that went unclaimed by members of the injured class, instead of requiring the unclaimed property to be turned
over to the state as directed by statute. 65 Actions such as this dramatically shrink 66 the total award from which plaintiffs'
attorneys may draw their contingency fees, thus further discouraging lawyers from bringing class action suits. 67 The viability
of class actions is crucial to the success of toxic tort suits brought by poor plaintiffs. Without class actions, the first plaintiffs to
bring suit may be the only ones to collect substantial punitive damages awards, an outcome which would affect the ability of
other, equally deserving plaintiffs to recover for their injuries. 68 The risk that a "first come, first serve" model of distribution
will deplete a finite pool of award money is illustrated in New Jersey, where the United States District Court for the District of
New Jersey held that under the Due Process Clause of the Fourteenth Amendment, it is unfair to subject defendants to the
possibility of multiple punitive damages awards for a single course of conduct. 69 More fundamentally, when injury to a client is
not extensive, the nominal damages potentially available to that client may not justify the extensive legal work required to
litigate a toxic tort claim. 70 Realistically, a class action may be the only way to economically justify the litigation. 71 For Anne
Anderson and the other plaintiffs in the Woburn case, the availability of class action status was critical for success. If the
plaintiffs had each been forced to bring separate suits and had not chosen to settle, Judge Skinner could have awarded punitive
damages only to the first plaintiff. 72 Additionally, the amount of potential damages to one of the families, as opposed to all of
the families in the [*141] aggregate, probably would not have attracted any lawyer to the case. 73 Finally, not being able to
pool either existing resources or anticipated recoveries would have precluded the families from funding the studies and hiring the
experts they needed in order to prove complicated causation issues. 74
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Dartmouth 2K9
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LSC Aff (8/18)
Contention 3: Predatory Lending
The LSC restriction on class action lawsuits exacerbates predatory lending
Henderson and Zirkin, President and VP of LCCR, 6/24
(Wade Henderson and Nancy Zirkin, President and Vice President of Leadership conference on civil rights, 2009)
These unwarranted restrictions have caused victims of consumer fraud and illegal housing practices to
be placed at a disadvantage because attorneys cannot collect fees; have postponed efforts to help
prisoners reenter society; and have hamstrung the poor's ability to combat predatory lending practices,
since they cannot engage in class action lawsuits. In particular, the restriction on state, local, and private funds
have led to wasteful spending, as separate offices are set up to do the work that the LSC is restricted from performing.
Removing these restrictions comes at no cost to the federal government and even provides more
revenue to the LSC through the collection of attorneys' fees.
Continuation of predatory lending will cause economic collapse
Shibabaw, staff writer for the Socialist Alternative, 2007
(Theodros, staff writer, July 10, 2007, http://www.socialistalternative.org/news/article12.php?id=578)
Mortgage loan companies and banks have made hundred of billions of dollars in profit by preying on
people who would otherwise be shut out of the market. These days, it’s hard to even pay for basic necessities
without going into debt, as stagnating wages fail to keep pace with the fast-rising cost of living. In this context,
subprime loans were made attractive by all kinds of gimmicks like really low teaser interest rates that
later double or triple (called exploding ARMs – adjustable rate mortgages), or loans with no money down, no
credit check, and little proof of income needed. Some schemes even offer interest-only repayment. Lenders use
these tricks with full knowledge that they are entrapping people into an endless cycle of debt. The exploding ARMs, for
example, are as painful as they sound. Unable to pay the higher rates, after the low teaser rates expire, many fall easy prey
to lenders who strip the equity from their homes as a way to avoid foreclosures. The booming housing market made
these scams easier, as people just refinanced against the rising value of their homes. But as deflation of the
housing bubble brings higher interest rates and decreased equity values, short-term fixes no longer work. The result is an
all-time high in defaults and foreclosures, sharply cutting the revenue stream to these lending
companies. In the first quarter of 2007 almost 19 percent of all subprime loans, or 1.1 million mortgages, were either
delinquent by more than 30 days or in foreclosure, an increase from 16.4 percent six months earlier (Mortgage Bankers
Association, 6/14/07). Dozens of companies have either quit the subprime business or gone bankrupt.
When all is said and done, an estimated 2.2 million people will loose their homes (Center for Responsible
Lending, 12/06). The danger that this crisis poses to the economy as a whole is enormous, as the amount
of loans tied up in this market in 2006 was upwards of a trillion dollars.
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Economic collapse causes world war
Mead, Henry A. Kissinger Senior Fellow in U.S. Foreign Policy at the Council on Foreign Relations, 2009
(Walter Russell Mead, February 4, 2009, “Only Makes You Stronger”, The New Republic,
http://www.tnr.com/politics/story.html?id=571cbbb9-2887-4d81-8542-92e83915f5f8&p=2)
None of which means that we can just sit back and enjoy the recession. History may
suggest that financial crises
actually help capitalist great powers maintain their leads--but it has other, less reassuring messages as
well. If financial crises have been a normal part of life during the 300-year rise of the liberal capitalist
system under the Anglophone powers, so has war. The wars of the League of Augsburg and the Spanish
Succession; the Seven Years War; the American Revolution; the Napoleonic Wars; the two World Wars; the
cold war: The list of wars is almost as long as the list of financial crises. Bad economic times can breed
wars. Europe was a pretty peaceful place in 1928, but the Depression poisoned German public opinion and helped bring
Adolf Hitler to power. If the current crisis turns into a depression, what rough beasts might start slouching
toward Moscow, Karachi, Beijing, or New Delhi to be born? The United States may not, yet, decline,
but, if we can't get the world economy back on track, we may still have to fight.
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Contention 4: The Justice Gap
The vast majority of the poor lack access to adequate legal services
Washington Post, 10/15/2005 (http://www.encyclopedia.com/doc/1P2-85652.html)
At least 80 percent of low-income Americans who need civil legal assistance do not receive any, in part because legal aid offices in
this country are so stretched that they routinely turn away qualified prospective clients, a new study shows. Roughly 1 million cases
per year are being rejected because legal aid programs lack the resources to handle them, according to the study, "Documenting the
Justice Gap in America," by the Legal Services Corp. (LSC), which funds 143 legal aid programs across the country.
This lack of legal access destroys public involvement in government
Kimberly Breedon, J.D. University of Cincinatti, Winter 2008 (“Toward a Cumulative Effects Doctrine in First Amendment
Jurisprudence.” Loyola Law Review. 54 Loy. L. Rev. 855. Lexis //ZE)
Petitioning the courts is an important political right for two reasons. First, access to the judicial forum is essential for vindicating
individual legal rights. Second, adjudicatory proceedings - albeit indirectly and to a lesser degree than in the political branches enable citizens to participate in the decision-making processes that construe statutes and constitutions, develop law, and determine
policy interpretations. The influence of citizen participation on courts' decisions is not as evident as it is on those of the legislature and
executive, but it is important, particularly in an adversarial framework. 27 Litigants shape the direction and content of the courts'
decisions by serving as the source for evidence and arguments and by framing the contours of the controversy. 28 Courts shape
legislative policy outcomes ex post and interpret the law by developing precedent and legal doctrines, and by construing legal texts all "with the participation of affected parties that may otherwise be excluded because of their weakness in the electoral process." 29
Thus, the degree of the citizenry's access to the courts, as is true for their access to the electoral branches, will determine the extent to
which they influence outcomes. Citizens' access to adjudicatory bodies arguably assumes even greater importance in the context of
challenges to administrative decisions, which are made by unelected government officials and are therefore beyond the reach of voters
who may be dissatisfied with the outcomes. 30 Many of these decisions significantly affect people's health, safety, or welfare. To
ensure that the laws and regulations are properly enforced, citizens must be able to challenge agency decisions as a mechanism for
checking officials' discretion. The judiciary provides the forum for that check and ensures that agency decisions are made according to
the rule of law, not the rule of men. 31 Without open access to the courts, citizens lose this important check on the power of the state,
32 which, in some circumstances, may also [*862] represent the power of the politically well-connected. 33 B. Poverty as an
Impediment to Court Access Litigation may seem an unlikely candidate for promoting democratic self-government, but it serves
precisely that role (among others). Court decisions determine the contours of public policy, protect individual rights, and ensure that
the rule of law prevails - and litigants help shape courts' decision-making. 34 Thus, political rights in a participatory democracy must
include open access to courts, 35 and - as a political right - such access must be equally available and it must be meaningful. 36
Economic inequalities, however, present obstacles to achieving equal political rights, as much so in the courts as in the electoral
branches. Economic advantages, which are almost always conjoined with educational advantages and better access to information,
make individuals and organizations better able and more inclined to exercise political rights. 37 In other words, equality of rights in
theory does not necessarily mean equality of rights in practice. These inequalities may be more readily apparent in the political
branches, but they create significant disparities in the adjudicatory context as well. Economic differences in administrative and
judicial proceedings transform into inequalities in political rights because of the de facto requirement that parties have legal assistance
to advocate their claims effectively. 38 All too often, the poor cannot obtain legal assistance. Without legal counsel, they are
significantly less able to participate meaningfully in the courts' decision-making process and are, therefore, not only less able to
advance their own case effectively, but also less likely to be able to help shape the contours of legal doctrine and policy interpretation.
39 As Susan Lawrence insightfully observes, "when access to the judicial forum is limited, not by the constraints of justiciability but
by the financial ability of the aggrieved to retain counsel," the result is, to some extent, a threat to important elements of selfgovernment in that the [*863] right to petition the government through the courts is, at best truncated, and at worst, obliterated. 40
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Ensuring public involvement in government is necessary for planetary survival
Kenneth M. Dolbeare, Prof. of Political Econ. @ Evergreen, and Linda Medcalf, Prof. of Poli Sci @ Evergreen , ’87
[The Case Against the Constitution, “Class and Pluralism in America: the Constitution Reconsidered,” p. 138-140]
Where have all the voters gone? They have caught on that the system is rigged. Popular majorities' efforts to change either the
distribution of wealth and power or the basic policies that seem necessary to maintain that structure of wealth and power simply don't
seem possible. To be sure, decades of accomplishment by the ideological defenders and celebrants of this system have encouraged
Americans to accept it as "democracy." Americans learn to want or, more likely, consider inevitable whatever is produced, to settle for
various diversionary satisfactions, and/or to fear change and even suspect that those who do seek change must have self-interested and
unpatriotic motives. These are ideological rationalizations for the central fact that the Hamiltonian Constitution excludes people from
directly affecting important public policy outcomes. This is not to say that there is no history of popular impact on government, or that
the Supreme Court is merely a tool of the corporations. Either such caricature of our argument would be silly. What is important is
that popular impact, such as it is, can be made effective only in very limited ways through the electoral process. For the most part, it
must come through disruptionriots, massive strikes, demonstrations involving the threat of violence, and other attacks on the social
order itself. What does it mean for a popular government that its people are politically effective only when they threaten to destroy it?
The Supreme Court has made many decisions, particularly in the middle years of this century, that advanced basic democratic rights.
But that was a result of judicial appointments, not an attribute of the institution. The Supreme Court has, and can, and may well again,
make precisely the opposite kinds of decisions. What does it mean for a popular government that its basic policies can be set by a
transitory majority drawn from a body of nine life-appointed lawyers? What we are saying is that the Framers' two major goals are
threatened today by the success with which Hamilton and his followers implemented those goals. We do not have a stable political
economic system, and we do not have the capacity to make the choices necessary to assure a strong and successful American political
economy. Our political system works by fits and starts. It is neither responsive nor accountable and it lacks solid grounding in the
body of its people. It sits and waits for the next crisis. Unfortunately, to solve that crisis, it may have to transform itself into something
that will be very difficult to rationalize as "democracy." We have not addressed the great issues of nuclear war, planetary survival,
or even American economic viability in a drastically changing world economy-not because the people don't care, but because there is
no linkage between the people's felt needs and their policymakers. No such basic policies can be implemented, even if policymakers
were to concur, without the sustained support of some major portion of the people. To solve our problems, or merely to fulfill the
Framers' goals in the wholly different conditions of our times, we will have to come to terms with Hamilton's Constitution in a
realistic manner. Perhaps the best way to honor the Framers' work is not to join in obfuscating celebrations, but to act as they did
under like circumstances. We might start by critically exploring the ways in which today's analogue of the Articles of Confederation is
defective in achieving goals that are necessary and desirable for the future. Obviously, like the Framers, we would have to address
basic principles of social order and purpose-if we have not completely forgotten how to do so. (That we have forgotten is strongly
suggested by the nature of the proposals currently offered for constitutional "reform. 1136 ) Curing the defects of Hamilton's
Constitution may not be possible, for many reasons. It may be that patterns of material advantage, or the depth of the problems we
face, or the sheer size of the country, make it practically impossible. Or our situation may be even worse: perhaps generations of
structural deflection-of elites as well as of the general public---from considering the Constitution in a realistic manner has made it
impossible for us to do so now. Decades of cultural lowering of the criteria of democracy may have made it impossible for us to
recapture its fuller definition and potential. If there is a route out of our crisis, it lies in deliberately reversing Hamilton's strategy.
That is, we must seek to re-engage the people in their government, and particularly in ways that enable them to have direct impact
on the substance of important public policies.
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And, Class action restrictions violate the first amendment
Illisabeth Smith Bornstein, J.D., U of Chicago, 2003 (“COMMENT: From the Viewpoint of the Poor: An Analysis of the
Constitutionality of the Restriction on Class Action Involvement by Legal Services Attorneys.” The University of Chicago Legal
Forum. 2003 U Chi Legal F 693. Lexis //ZE)
Aside from the Velazquez analysis, there are other reasons to find the class action prohibition unconstitutional. Restricting how
the attorney may advise the client, as well as how she may inform the court, truncates the attorney's presentation to the court in a
way that implicates protected speech and expression. 115 Litigation theories are a protected form of expression, 116 and the speech
at issue here, expression on public issues and criticism of government policy, is accorded the highest protection under the First
Amendment. 117 The Court views such a restriction on attorney advocacy and judicial function as "serious and fundamental."
118 That the LSC attorney could withdraw from a case touching restricted activities is beside the point. The Court recognized
in Velazquez that the LSC was created precisely to provide legal representation to those who are unable to afford an alternate source
of legal assistance. 119 The lack of an alternate channel for the expression that Congress sought to restrict made such a restriction on
the expression unconstitutional. 120 For these reasons, the Court also rejected the argument that the client could find a non-LSC
attorney to represent him with regards to the restricted speech. 121 The viewpoint against which the class action prohibition
discriminates has been described as one that seeks to hold the government [*710] accountable for its actions, particularly when the
actions infringe upon substantive rights. 122 This is precisely what the suits for benefits restriction prevented when it banned
arguments on the constitutionality of welfare laws, and the class action restriction should be considered unconstitutional for
the same reasons. 123 It has also been suggested that the 1996 restrictions implicate certain other First Amendment rights,
namely, the right of association 124 and the right to petition the government for grievances. 125 The Court has recognized these
rights as being "among the most precious of the liberties safeguarded by the Bill of Rights," 126 and has warned against
making such rights "hollow promises" by denying groups the means to exercise these rights. 127 Those who support restrictions
on LSC acknowledge that it is legitimate to file suits on behalf of individuals who are being denied funds improperly or who are
being treated improperly by the state, 128 yet offer no reason why suits on behalf of a group so situated are not just as legitimate.
129 [*711] One may counter that even if the class action prohibition implicates First Amendment rights, the government is
not required to subsidize the exercise of these rights, regardless of how fundamental they may be. 130 Once the government
subsidizes some speech, however, it cannot discriminate in its funding in a viewpoint discriminatory manner, which is what Congress
has done in implementing the ban on class action involvement. 131
The impact is extinction
Henkin, Columbia, 1988
(Atlantic Comm Qtly, Spring)
Lawyers, even constitutional lawyers, argue "technically," with references to text and principles of construction, drawing
lines, and insisting on sharp distinctions. Such discussion sometimes seems ludicrous when it addresses issues of life and
death and Armaggedon. But behind the words of the Constitution and the technicalities of constitutional construction lie the
basic values of the United States–limited government even at the cost of inefficiency; safeguards against autarchy and
oligarchy; democratic values represented differently in the presidency and in Congress, as well as in the intelligent
participation and consent of the governed. In the nuclear age the technicalities of constitutionalism and of constitutional
jurisprudence safeguard also the values and concerns of civilized people committed to human survival.
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And, the plan’s ruling spills over to strengthen first amendment rights
Robert Tsai, J.D. from Yale, June 2002 (“Conceptualizing Constitutional Litigation as Anti-Government Expression: A Speech
Centered Theory of Court Access.” American University Law Review. 51 Am. U.L. Rev. 835. Lexis //ZE)
First and foremost, a fresh perspective is important because existing scholarly materials and case law reflect an inadequate
understanding of the right of access. The right is not treated seriously as a basic right, although it is nominally characterized as one.
Even when its importance is acknowledged, courts and commentators are not in accord as to the scope of this right. 18 This Article
offers an alternative doctrinal basis for the right to meaningful access by linking the importance of court access to a modern
understanding of anti-establishment speech. [*841] Second, it is valuable to think about constitutional litigation as quintessential
dissent. When courts fail to appreciate the dynamic character of constitutional litigation, they may overlook the possibility that laws
restricting the assertion of one's rights may be speech-curbing in nature. 19 The simplicity of the norms-enforcing narrative lures
courts into thinking that as long as their doors remain open for business, nothing more needs to be done to assure equal and
meaningful access. 20 This attitude, in turn, infects the legal analysis when questions of court access are involved. The prevailing
First Amendment approach, for better or worse, requires a court to classify speech, regulated by a challenged enactment, according to
certain established categories, to estimate the probable scope of the law, and to analyze the law in light of the peculiar set of rules that
are protective of speech. 21 Therefore, the initial effort by a court to classify the speech at issue and "size up" the impact of a given
law on speech has profound consequences on how the court evaluates the constitutional questions presented. How a court categorizes
expression determines the protection that it is accorded; a court's failure to recognize fully the chilling effect of a rule, at this first step,
usually spills over to later stages of the court's analysis. 22 Treating the pursue of redress as dissent marks its role as the gateway to
the political-legal order by linking familiar, time-honored free speech concepts with a rich understanding of the civil [*842] rights
plaintiff's role in constitutional discourse. 23 If internalized, this method may break down the courts' bureaucratic impulse to treat a
lawsuit raising constitutionally-based claims as simply another matter to be cleared from the court docket. The third value to this
approach is that it enhances our collective appreciation for the complexities of constitutional decision-making. The rhetoric of the
legal opinion, in its persistent refusal openly to acknowledge conflict or disorder, endeavors to resolve disputes cleanly, adjudicate
questions finally, and announce authoritative and firm principles. Similarly, the official narrative explains constitutional adjudication
as a hermetically sealed, top-down phenomenon: when rights are ultimately vindicated, the constitutional order is "restored" or
"affirmed" from above. 24 This norms-enforcing narrative, which emphasizes the end result in a successful public law action over the
actual process, ignores the reality that constitutional litigation is, by nature, a profoundly disruptive activity and focuses on actual
decisions to the exclusion of how and why constitutional claims are actually presented. The process by which constitutional rights are
articulated is messy; battles are lost over fundamental principles for years before they achieve recognition of a constitutional right.
Even when litigants "win" by achieving a favorable court ruling, they can "lose" in terms of the real world consequences that flow
from pursuing the case, and what seems natural and logical to one generation of jurists and scholars may be utterly inconceivable to
the next generation. 25 An [*843] anti-government theory of access not only strives to achieve a coherent substantive theory, it also
explicates and embraces the richness of the procedure by which fundamental questions actually are adjudicated. It is principally
concerned with the powerful political and cultural forces that shape the constitutional crises; and the practical effects of court
decisions on the lives of those who are most affected.
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Contention 5: Welfare
Welfare rights violations are not being addressed due to a lack of resources for lawyers
Randal Jeffrey, Asst. Director New York Legal Assistance Group, Fall 200 3 (“Article: Facilitating Welfare Rights Class Action
Litigation: Putting Damages and Attorney’s Fees to Work.” Brooklyn Law Review. 69 Brooklyn L. Rev. 281 Lexis //ZE)
A paradox exists within contemporary welfare rights litigation. Despite a substantial number of violations and an apparent array of
incentives to file suit to remedy these violations, welfare rights litigation is generally too risky a proposition for attorneys to pursue.
Set against the whole of tort law, of which welfare rights are a part, the lack of litigation is especially perplexing. While general tort
lawyers spend substantial resources seeking and enlisting clients, attorneys who specialize in torts involving welfare rights violations
routinely turn away potential clients. 1 Encouraged by [*282] substantial and sometimes enormous fees, general tort lawyers
aggressively pursue clients through all manner of advertising media television, radio, phone books, and even mass transit. Conversely,
in the welfare rights context, the number of violations greatly surpasses the amount of litigation. Legal services organizations
throughout the country are swamped with those seeking to remedy clear violations of their rights to welfare, but they lack the
resources to represent even a fraction of their potential clients. Given that the Supreme Court has frequently described violations of
federal rights - including welfare rights - as torts that give rise to tort remedies, 2 the lack of welfare rights litigation is puzzling, to say
the least. This Article explores that disparity by examining the damages and attorney's fees that, in theory, should allow attorneys to
take on meritorious welfare rights litigation. Determining why these sources insufficiently fund such litigation will help reveal the
changes necessary to provide appropriate incentives to litigate in the welfare context. One initial, but ultimately inadequate,
explanation for the lack of welfare rights litigation is that, by definition, these plaintiffs have little or no money to pay attorneys. 3 Yet
this answer falls short because in other areas of tort law a client's poverty is no barrier to representation. In general tort litigation,
contingency fee arrangements routinely allow impoverished clients to retain attorneys. 4 Given that, the next question is why welfare
rights attorneys do not enter contingency arrangements with clients or, conversely, why private tort lawyers do not take welfare rights
cases. On top of potential contingency arrangements, welfare rights plaintiffs should have an easier time securing counsel because of
the availability of attorney's fees. The Civil Rights Attorney's Fees Awards Act of 1976 5 specifically authorizes [*283] courts to
award attorney's fees to prevailing parties in civil rights litigation, which includes most welfare rights litigation. 6 The Act establishes
attorney's fees as a method for enlisting "private attorneys general" to remedy civil rights violations by making fees available to
attorneys when their clients prevail. Theoretically, tort remedies and attorney's fees should combine to create powerful incentives for
attorneys to pursue welfare rights litigation. Yet the scarcity of welfare rights litigation continues to exist. By looking through the
prism of financial incentives, this Article recognizes that economic incentives play a critical role in what litigation attorneys choose to
pursue. 7 Arguably, this perspective is in tension with the notion that attorneys pursue welfare rights litigation for public-spirited
reasons. However, the financial incentives perspective does not mean that most welfare rights attorneys exclusively, or even chiefly,
consider economics when deciding what litigation to pursue. Attorneys at nonprofits, who pursue the bulk of this litigation, accept
positions making substantially less than their counterparts at private firms and government agencies. 8 But even the most publicspirited attorneys must be paid a salary, and their organizations must pay office overhead and the costs of litigation. 9 As Justice
Brennan eloquently wrote in a case concerning attorney's fees: "It does not denigrate the high ideals that motivate many civil rights
practitioners to recognize that lawyers are in the business of practicing law, and that, [*284] like other business people, they are and
must be concerned about earning a living." 10
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This lack of class action litigation prevents the escape from the cycle of poverty.
Joshua D. Blank (Associate at Harvard Law) and Eric A. Zacks (Associate at the University of Michigan) 2005: Dismissing the
Class: A Practical Approach to the Class Action Restriction on the Legal Services Corporation. Penn State Law Review. Lexis
In the past, the class action device has been used effectively to enforce the rights and claims of the poor.
n46 In the context of the disabled [*11] poor, the ability of LSC-funded legal services providers to litigate
class actions is especially important because the disabled are often unable to assert their legal rights
individually. As one commentator asserted, "when the plaintiff is poor, marginalized, legally incompetent,
ignorant of legal rights, or unable to assert rights for fear of sanctions or otherwise, and these disabilities
are shared by others similarly situated, the class action may be the only effective means to obtain judicial
relief." n47 Poor children have also benefited from class action lawsuits filed on their collective behalf. For
example, Gordon Bonnyman, Managing Attorney at the Tennessee Justice Center, noted how a class
action filed on behalf of children who were also Medicaid recipients forced the reform of the state's
administration of medical services to the poor. n48 A similar class action forced the Tennessee welfare
program to institute quality control devices that diminished the number of poor families that lost their
state welfare benefits by fifty percent. n49 Mr. Bonnyman concluded that "it was the combination of class
action litigation, sophisticated legislative and administrative advocacy, and close collaboration with
community groups, that made possible these important gains for [his] clients."
The continuation of status quo poverty is analogous to the most deadly form of violence.
Gilligan, Former Director of Psychiatry at Massachusetts State Prison, 1996,
(James Psychiatrist, Former Director of Psychiatry at Massachusetts State Prison, worked in the criminal justice system for many
years. M.D Professor of Psychiatry at Harvard Medical School)
The deadliest form of violence is poverty. Any approach to a theory of violence needs to begin with a look
at the structural violence. The lethal effects of structural violence operate continuously whereas wars, and other
forms of behavior violence occur one at a time. The 14 to 19 million deaths a year caused by structural violence
compare with about 100,000 deaths per year from armed conflict.and even a hypothetical nuclear exchange
war cannot begin to compare with structural violence, which continues year after year.Every fifteen years as
many people die because of relative poverty as would be killed by the Nazi genocide of the Jews over a sixyear period.This is, the equivalent of an ongoing, unending, and accelerating, thermonuclear war, or
genocide, perpetrated on the weak and poor every year of every decade, throughout the world. Structural
violence is also the main cause of behavioral violence on a socially and epidemiologicaly significant scale.
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Class action lawsuits provide essential rights to the poor and deter future exploitations
Katie Meinick 08; Katie is a J.D. Candidate at St. John’s University; “In Defense of the Class action lawsuit: and examination of the
implicit advantages and a response to common criticisms” St. John’s Journal of Legal Commentary,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7006030731&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7006030734&cisb=22_T7006030733&treeMax=true&treeWidth=0&csi=14
3887&docNo=11
Historically it has been the plaintiffs who have supported and utilized the class action. n185 The device is popular among injured
[*788] plaintiffs because it allows them to pool their claims and bring an action even when a single plaintiff alone has not
sustained a substantial enough injury to warrant the underlying action. n186 Similarly the class action device gives
plaintiffs a sort of strength in numbers mentality. n187 Alone, facing the big businesses of the world can be
daunting; and yet, as one in a group of injured plaintiffs, this daunting task becomes more feasible. n188 In
discussing the advantages of the class action for plaintiffs, the easiest place to start is the notion within the
American justice system of ensuring equal access to justice. n189 The American legal system is heavily based
on the philosophy that every injured party deserves his day in court. n190 It is with this objective in mind
that the class action becomes integral. n191 Often in the class [*789] action scenario, a business or corporation has injured
a large number of people in such a way that the "overall liability is large but the individual interests of the class members or
corporate shareholders are small." n192 In such cases, it is only when the injury is taken in the aggregate that it becomes worth
litigating. n193 The class action provides the mechanism by which the injured plaintiffs can pool their claims,
and in doing so create an action that is worth pursuing. n194Additionally, the class action can be used as a
means through which to enforce the rights of the poor. n195 "When the plaintiff is poor, marginalized,
legally incompetent, ignorant of legal rights, or unable to assert rights for fear of sanctions or otherwise,
and these disabilities are shared by others similarly situated, the class action may be the only effective
means to obtain judicial relief." n196 This ability to represent the poor becomes apparent in the willingness of class action
lawyers to represent classes on a contingency fee basis. n197 Such a fee arrangement allows even indigent parties to obtain a
lawyer to vindicate their rights because [*790] they do not have to pay the attorney until they themselves recover. n198 While
access to the courts is undeniably important, some argue that class action litigation is a waste of judicial
time especially when the parties have not sustained serious enough injuries to bring individual actions.
n199 These arguments fail to recognize the benefits such litigation provides to the community as a whole
and not simply the benefits it provides to individual plaintiffs. n200 In many ways the class action can eliminate
power imbalances that would otherwise exist in the face of such claims. n201 Through the class action,
plaintiffs are able to pool their claims and thereby increase the defendant's potential liability. n202
Additionally, the pooling of claims ensures that even small claims get litigated - claims that would go unlitigated were it not for the class action. n203 In fact, one of the reasons many big businesses and corporations oppose the
class action so vehemently is because they are aware that it would not be cost effective for many of the class action claimants to
pursue their claims without the benefit of the [*791] other members of the class. n204 Therefore, without the class action device,
many businesses would arguably be able to escape answering for their wrong-doings until they injured someone so substantially
that it became cost effective for the injured victim to pursue the claim individually. n205 The use of the class action as a means to
regulate businesses and to force them to answer for their wrong-doings, no matter how small, has given birth to the private
attorney general. n206 The private attorney general is someone who sues "to vindicate the public interest." n207 Lawyers who have
deputized themselves as private attorney generals serve a very important purpose within the legal system. n208 Such lawyers
represent classes not only to ensure that the victims are duly compensated, but also to deter certain behavior within society at
large. n209 By soliciting and representing [*792] injured claimants against larger businesses, these attorneys are increasing the
resources allocated to the "detection and prosecution of prohibited behaviors." n210 This increase in resources simultaneously
increases the likelihood that a business will be closely regulated and subsequently held accountable for any illicit behavior. n211
The benefits of the class action device to individual plaintiffs are multi-faceted. First, the device allows
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plaintiffs to make their way into the court-room even when they have been injured only minimally. n212 This
access to the courts not only allows more claims to be litigated, but also CAUSES BUSINESSES TO BE
MORE AWARE OF THEIR BEHAVIOR. n213 As more claims are filtered into the courtroom, it becomes more likely
that a business will be forced to answer for any injures it has caused. n214 As plaintiffs' attorneys deputize themselves as private
attorney generals, they serve the important purpose of supplementing the governmental regulation of business, again deterring
illicit behavior on the part of big [*793] business. n215 This circle of regulation works to compensate and deter,
proving advantageous not only to the plaintiffs themselves, but also to society as a whole, which benefits
from the increased regulation of the businesses world. n216
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Federal government is key – restrictions on the LSC spillover over to non-LSC funding
Powell, Associate Counsel of Poverty Program, 2001
(Roslyn Powell, Brennan Center For Justice at NYU School of Law, June 20, 2001, “LSC RESTRICTION FACT SHEET #5: The
Restriction Barring LSC-Funded Programs from Participating in Restricted Activities Even If These Activities Are Wholly Funded by
Non-LSC Sources”,
http://www.brennancenter.org/content/resource/lsc_restriction_fact_sheet_5_the_restriction_barring_lsc_funded_programs_fr/)
“[A recipient shall not be prevented] from . . . using funds received from a source other than the Legal Services
Corporation to provide legal assistance to a covered individual . . . except that such funds may not be expended
by recipients for any purpose prohibited by this Act or by the Legal Services Corporation Act.”
Only the federal government has jurisdiction over class action lawsuits – commerce clause proves
Helen Hershkoff (Professor of Law New York University School of Law) May, 2007: POVERTY LAW AND CIVIL
PROCEDURE: RETHINKING THE FIRST-YEAR COURSE. Lexis
Diversity jurisdiction also can be better understood from the perspective of wealth and poverty. Conventional wisdom associates
diversity jurisdiction with the need to protect out-of-state residents [*1345] against in-state bias; the literature also emphasizes
the historic aim of protecting creditors against populist state judges and pro-debtor rules. n100 Congress' decision to shift multistate class actions into the federal courts, despite the absence of complete diversity between the plaintiffs and the defendants,
recasts this set of issues in an important and contemporary context that potentially pits large corporations against tort plaintiffs
who may be relatively under-resourced. n101 As during the Lochner period, some commentators criticize extending a federal
forum because it arguably advantages big business at the expense of financially weak plaintiffs. n102 On the other hand, interstate
class actions may be said to deserve a federal forum "because they implicate interstate commerce, invite discrimination by states
against outsiders, and tend to cultivate bias against large business enterprises." n103 As with § 1331, the evolving nature of
diversity jurisdiction reflects social values that implicate the accessibility of federal courts for claimants with limited financial
resources. The Casebook invites students to consider what types of cases should be heard in the federal courts. n104 The answer to
that question surely involves some consideration of whether federal courts have a significant role to play in resolving legal
questions that touch on poverty and inequality. n105
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Inherency: EJ
EJ community members are more likely to succumb to dangerous employers and less likely to speak out
Meagan Elizabeth Tolentino Garland 07; Garland - Attorney, Baker & McKenzie, LLP, San Diego. The author conducted the
research and writing for this article in 2005 while a student at Boston College Law School; “Addressing Environmental justice in
criminal sentencing process: are environmental justice communities “vulnerable victims” under 3A1.1(B)(1) of the federal sentencing
guidelines in the post united states v. booker era?” Albany Law Environmental Outlook Journal,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7006030731&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7006030734&cisb=22_T7006030733&treeMax=true&treeWidth=0&csi=22
1806&docNo=10
In determining vulnerability, courts have also looked to characteristics of the victim(s) that would make
them more likely to depend or detrimentally rely upon their victimizer(s). n246 Courts have reasoned that victims
with glaring needs, who would do almost anything to fill that need, are particularly vulnerable to any criminal who offers a
solution. n247 United States v. Peters, a mail fraud case, where the defendants were accused of soliciting funds from people with
poor credit histories in exchange for "pre-approved" credit cards is an example. n248 In Peters, the court found that while members
of the general public would have merely discarded the advertisement, "individuals with poor credit backgrounds were more
likely than others to succumb to the solicitation and were particularly susceptible to the scam." n249 Similarly, the comments to
section 3A1.1(b)(1) of the Guidelines state that the adjustment would apply, for example, in a case in which the defendant
marketed an ineffective cancer cure implying that those with cancer and desperate for a cure would be more willing and more
likely to fall prey to the scam than would a member of the general population. n250 A court could find, as in Peters, and in line
with the cancer drug hypothetical posed in the Guidelines, that an EJ community desperate for employment
opportunities would be "more likely [*42] than [the general population] to succumb" to the idea of
allowing a potentially dangerous employer (e.g., a toxic chemical plant) to operate in their community. n251
Further, these same community members would be less likely to complain or speak against the new plant
for fear that their community would lose jobs and income. n252 The general population does not face the
same risks as EJ communities because industries, in taking the path of least resistance, will choose to locate
in areas where the chance of opposition, political or otherwise is the least likely. n253 EJ communities, by
default, become the location of choice for such industries. n254
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Legal Services Corporation Affirmative
Dartmouth 2K9
21
Class Action Key to EJ
Class action key to environmental justice litigation
Marya Rose, Managing Editor, Boston College Third World Law Journal, 1997 (BOOK REVIEW: Tort Reform for a Civilized
Society? Implications of Tort Reform for Toxic Tort Lawsuits: A Civil Action.” Boston College Third World Law Journal. 17 B.C.
Third World L.J. 133. Lexis //ZE)
Jonathan Harr may never have had a case to write about if the families in Woburn had not been able to file a class action suit. Through
the class action device, all toxic tort victims can join together into a single lawsuit. 52 In a typical class action suit, a large class of
persons [*139] who are similarly situated in regard to the case are represented by either a small group or a single member of the
class. 53 Toxic torts are frequently ideal for joined litigation because they often involve "mass torts" in which large numbers of
individuals are injured through the same pattern of events. 54 In fact, the majority of environmental cases are filed as class action
suits. 55 One reason that environmental cases are often filed as class actions is that joinder of parties and joinder of claims enable
plaintiffs in expensive cases to pool their resources with those of other plaintiffs facing the same problem. 56 Additionally, judicial
efficiency is better served by joined or class actions. 57 When only one lawsuit is filed on behalf of all the victims of the pollution, the
basic underlying facts are resolved only once, which reduces the court's workload. 58 Although the only current federal reform that
expressly restricts class actions applies solely to shareholder suits, 59 less overt reforms have been successful in limiting the use of
class actions by poor and minority people. The most obvious example of this trend is the attempt by the 104th Congress to eradicate
the Legal Services Corporation. 60 While the Legal Services Corporation was not totally eliminated, an amendment to a spending bill
now bars Legal Services lawyers from taking cases involving class actions. 61 Second, rules against aggregating disputed sums in
order to meet minimum diversity requirements in federal court have discouraged the use of class actions. 62 These rules function to
reduce court access 63 of plaintiffs from diverse jurisdictions who have individually small injuries, but collectively large ones. A third
[*140] attack on the use of class actions is embodied in distribution of awards. 64 For example, in a recent California case, a superior
court judge allowed a defendant to keep all the money that went unclaimed by members of the injured class, instead of requiring the
unclaimed property to be turned over to the state as directed by statute. 65 Actions such as this dramatically shrink 66 the total award
from which plaintiffs' attorneys may draw their contingency fees, thus further discouraging lawyers from bringing class action suits.
67 The viability of class actions is crucial to the success of toxic tort suits brought by poor plaintiffs. Without class actions, the first
plaintiffs to bring suit may be the only ones to collect substantial punitive damages awards, an outcome which would affect the ability
of other, equally deserving plaintiffs to recover for their injuries. 68 The risk that a "first come, first serve" model of distribution will
deplete a finite pool of award money is illustrated in New Jersey, where the United States District Court for the District of New Jersey
held that under the Due Process Clause of the Fourteenth Amendment, it is unfair to subject defendants to the possibility of multiple
punitive damages awards for a single course of conduct. 69 More fundamentally, when injury to a client is not extensive, the nominal
damages potentially available to that client may not justify the extensive legal work required to litigate a toxic tort claim. 70
Realistically, a class action may be the only way to economically justify the litigation. 71 For Anne Anderson and the other plaintiffs
in the Woburn case, the availability of class action status was critical for success. If the plaintiffs had each been forced to bring
separate suits and had not chosen to settle, Judge Skinner could have awarded punitive damages only to the first plaintiff. 72
Additionally, the amount of potential damages to one of the families, as opposed to all of the families in the [*141] aggregate,
probably would not have attracted any lawyer to the case. 73 Finally, not being able to pool either existing resources or anticipated
recoveries would have precluded the families from funding the studies and hiring the experts they needed in order to prove
complicated causation
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21
Legal Services Corporation Affirmative
Dartmouth 2K9
22
Class Action Key to Prevent Predatory Lending
Legal services key to check consumer debt default
Victoria Haneman, Assistant Prof of Law @ University of La Verne, Summer 200 8 (“The Ethical Exploitation of the
Unrepresented Consumer.” Missouri Law Review. 73 Mo. L. Rev. 707 Lexis //ZE)
The consumer debtor has four choices when served with a summons and complaint alleging the validity of an old debt: Hire counsel to
defend it, try to attain representation by counsel from a no-fee source, appear and defend pro se, 86 or simply default. [*722] Default
is by far the most common action, occurring in 70% to 90% of all cases. Exactly why that happens is not entirely clear. Perhaps when
the underlying debt is (presumptively) valid, the prospect of complaining without "clean hands" discourages consumers from
exploring their legal rights. 87 Further, people who have unpaid debt are typically not among those best able to engage private
counsel. 88 The choice not to do so is involuntary for most civil defendants. 89 Those without the financial ability to retain counsel
may attract the attention of contingency counsel if they have a valuable claim, or a meritorious counterclaim. 90 Since the debt-buyer
bringing the collection action has standing as an assignee of the original debt, it is exceedingly unlikely that any counterclaim exists.
A successful defense therefore generates no funds from which counsel can be paid. While most scholars focus on the legal needs of
the poor, there is less recognition of the fact that working families above the poverty line are also unable to afford representation. 91
Paradoxically, the plaintiff's claim is worthless on its face if the debtor retains counsel - and conversely, if the debtor had the means to
retain counsel, the debt would have certainly been paid before suit was filed. There is very likely an additional factor causing the high
rate of default. Despite the lawyer jokes and their related social antipathies, 92 most people respect at least the power of the legal
system, if not its virtue. A summons and complaint calls the debtor to come to a court to have the case heard. Even if the debtor does
not know that a lawyer is technically an "officer of the court," the fact that the summons signed by the lawyer invokes the hegemony
of a court gives the call the appearance of judicial sanction. The popular idea that "if it were dangerous the government wouldn't allow
it" has special application here: "If this lawyer is lying and if my debt isn't really legally [*723] owed, how could a lawyer collect it
in a court?" The adversary's summons, that is to say, carries a suggestion of legitimacy that may well be disarming to those - like
many consumer debtors - who know no better. Public sympathy is not on the side of defaulting debtors, and it may therefore be
difficult to find attorneys willing to donate their pro bono efforts to assist debtors being sued for defaulting on a credit card debt. 93
Four-fifths of the civil legal needs of low-income individuals are unmet. 94 Many working families are unable to qualify for legal aid
programs because of family income, 95 while also not possessed of the financial wherewithal to afford representation. 96
Additionally, LEGAL aid attorneys accepting Legal Services Corporation ("LSC") funding must abide by the restriction prohibiting
the filing of class-action lawsuits, 97 a powerful tool available to consumers to curb abusive collection tactics. 98 The remaining
choice for the debtor is to appear pro se. While appearing in court at all is infrequent for debtors in the kinds of cases considered here,
such pro se appearances are a large and growing part of the total number of appearances that consumers do make. 99 A pro se
appearance is challenging [*724] for a court. On the one hand, American civil judges, as passive neutrals, are tightly constrained in
their ability to rebalance the equation in favor of a litigant who simply lacks the knowledge or skill to raise and pursue legal points that
might make all the difference. 100 Without regard to the underlying merits of the case, 101 an unrepresented party stands an uneven
chance of successfully litigating a claim against a trained attorney. But the judiciary's warranty of neutrality is just that; it would be
unpoliceable and arbitrary at best if judges were expressly allowed to act as counselors to any of the parties who appear before them.
102 That some of this goes on sub rosa may be beyond doubt, but it is neither part of the official tradition nor a reliable balm for the
problem. On the other hand, access to justice, not just access to the courts, is a competing governmental guarantee. 103 The
challenges presented to the courts by the growth of pro se litigation are difficult to ignore, but more difficult still to resolve in a system
built on contrary, if empirically false, premises. 104 The resulting judicial treatment has been mercurial, conflicting and inconsistent.
105 The United States Supreme Court has extended flexibility to the self-represented when necessary to protect a meaningful right to
be heard and to prevent an otherwise meritorious claim from being dismissed, 106 while at the same time holding that
selfrepresentation [*725] cannot devolve into "a license not to comply with the relevant rules of procedural and substantive law." 107
As a result, the pro se civil 108 litigant drifts through the system in isolation, 109 facing procedural and evidentiary obstacles, which,
while routine for the skilled litigator, can be fatal - there are claims and defenses, such as the statute of limitations, of which the pro se
debtor is entirely unaware. At the heart of this conundrum lies an erosion of every litigant's constitutionally protected right to a
meaningful opportunity to be heard. 110
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Legal Services Corporation Affirmative
Dartmouth 2K9
23
Class Action Key to Prevent Predatory Lending
Plan solves predatory lending
Wade Henderson, President & CEO of the Leadership Conference on Civil Rights, 6/24/2009 (“Fully Fund the Legal Services
Corporation and Lift the Restrictions on Legal Aid to Poor People.” http://www.civilrights.org/advocacy/letters/2009/legal-servicescorp.html)
On behalf of the Leadership Conference on Civil Rights (LCCR), the nation's oldest, largest, and most diverse civil and human rights
coalition consisting of over 200 organizations, we write to urge the Commerce, Justice, and Science Appropriations Subcommittee to
fully fund the Legal Services Corporation (LSC) and to lift restrictions that tie LSC's hands when delivering legal aid to poor people.
Restrictions on the LSC imposed by Congress are unnecessary and have hampered LSC's ability to deliver legal services to those most
vulnerable. Restrictions barring legal aid attorneys from collecting attorneys' fees, prohibiting legal services clients from participating
in class action lawsuits, and limiting the use of even non-federal monies – roughly $490 million in private and non-federal loans are
tied to federal restrictions - have severely impacted the ability of the LSC to effectively and efficiently deliver legal services to
individuals who most need legal assistance. These unwarranted restrictions have caused victims of consumer fraud and illegal
housing practices to be placed at a disadvantage because attorneys cannot collect fees; have postponed efforts to help prisoners reenter
society; and have hamstrung the poor's ability to combat predatory lending practices, since they cannot engage in class action
lawsuits. In particular, the restriction on state, local, and private funds have led to wasteful spending, as separate offices are set up to
do the work that the LSC is restricted from performing. Removing these restrictions comes at no cost to the federal government and
even provides more revenue to the LSC through the collection of attorneys' fees. For 35 years, the Legal Services Corporation has
assisted the poor in civil legal cases, helping more than five million people per year. Yet due to budget cuts and restrictions imposed
on the LSC in the mid-1990s, one million cases are turned away because of funding shortages every year. In these times of economic
distress, when more and more people require help in battling foreclosure and eviction, securing unemployment and benefits, and
dealing with medical and insurance matters, the Senate must assist those most vulnerable by funding the LSC sufficiently and by
lifting no-cost restrictions.
Class action lawsuits are key to combat predatory lenders
Rebekah Diller and Emily Savner 09; Diller is a Deputy Director of the Brennan Center’s Justice Program and has a J.D. from New
York University School of Law, Savner is a Research Associate in the Brennan Center’s Justice Program and studied political science
and economics at New York University and graduated summa cum laude in 2008 as a member of Phi Beta Kappa; “A Call To End
Federal Restrictions On Legal Aid For The Poor” Brennan Center For Justice, New York University Law School
As with the attorneys’ fee restriction, the class action limitation has a particularly harmful
effect on efforts to combat consumer fraud that targets low-income communities. In predatory lending
cases, for example, legal services programs must litigate against unscrupulous players piecemeal, helping
one homeowner at a time instead of a broad class of victims. A recent suit by eight first-time
homebuyers against United Homes, LLC, a self-titled “one-stop shop” of real estate companies, lenders, appraisers,
and lawyers, illustrates the inability of the courts to fully enforce consumer protection laws without the
option of a class action.79 Represented by South Brooklyn Legal Services, the eight African-American
homebuyers allege that United Homes conspired with appraisers, lenders, and attorneys to sell “overvalued, defective homes financed with predatory loans.”80 In seeking to vacate the underlying mortgage
obligations, they allege that United Homes failed to disclose their properties’ histories, inflated the homes’ values with
inaccurate appraisals, overstated the buyers’ assets and incomes on loan applications, concealed information about loan
terms, sold the homes in uninhabitable conditions and refused to make agreed-upon repairs.81 The homebuyers also
allege that “United Homes exploited the racially segregated housing market to engage in ‘reverse
redlining,’ the practice of intentionally extending credit to members of minority communities on unfair
terms.”82 The bulk of the plaintiffs’ claims have survived a motion to dismiss and the case
continues.83 Given the alleged nature of this “one-stop shop,” it is hard to imagine that these eight
individual plaintiffs are the only people in Brooklyn who fell victim to the defendant’s practices.
However, unable to file a class action against United Homes, SBLS cannot seek more widespread
relief for other homebuyers potentially taken advantage of by United Homes.
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Legal Services Corporation Affirmative
Dartmouth 2K9
24
Class Action Key to Prevent Predatory Lending
Legal services combat predatory lending and help the economy
Rebekah Diller and Emily Savner 09; Diller is a Deputy Director of the Brennan Center’s Justice Program and has a J.D. from New
York University School of Law, Savner is a Research Associate in the Brennan Center’s Justice Program and studied political science
and economics at New York University and graduated summa cum laude in 2008 as a member of Phi Beta Kappa; “A Call To End
Federal Restrictions On Legal Aid For The Poor” Brennan Center For Justice, New York University Law School
Notwithstanding the restrictions, legal services offices continue to provide high-quality representation
and assist client communities in addressing legal problems. However, clients face many types of legal
problems that could be addressed more effectively and efficiently were they to have access to the legal
tools available to all other litigants. This section describes the impact of particular advocacy restrictions – those
prohibiting attorneys’ fee awards, class actions, and legislative and administrative advocacy – and includes examples of
specific cases that the Brennan Center has gathered from legal services offices around the country.
Many of the examples involve efforts to combat predatory lending and other consumer scams that are
tied to the mortgage meltdown and foreclosure crisis. In the midst of the national financial crisis, legal
aid providers are being inundated with requests for help by people about to lose their homes .47 The need
is tremendous and the resources available are limited. When legal aid offices are able to take cases in which
consumer fraud was involved,48 the restrictions – particularly the class action and attorneys’ fee
restrictions – limit the ability of LSC recipients to perform their private attorney general role in the
consumer protection enforcement scheme and enable wrongdoers to write off individual cases as a
mere cost of doing business.49 Moreover, the restrictions on legislative advocacy have gagged legal aid
attorneys from performing their critical role in alerting legislatures to the problems of low-income
communities, including those that led to the subprime lending crisis.50
Restrictions on LSC promote predatory lending
Henderson and Zirkin, President and VP of LCCR, 6/24
(Wade Henderson and Nancy Zirkin, President and Vice President of Leadership conference on civil rights, 2009)
These unwarranted restrictions have caused victims of consumer fraud and illegal housing practices to
be placed at a disadvantage because attorneys cannot collect fees; have postponed efforts to help
prisoners reenter society; and have hamstrung the poor's ability to combat predatory lending practices,
since they cannot engage in class action lawsuits. In particular, the restriction on state, local, and private funds
have led to wasteful spending, as separate offices are set up to do the work that the LSC is restricted from performing.
Removing these restrictions comes at no cost to the federal government and even provides more
revenue to the LSC through the collection of attorneys' fees.
Class action lawsuits key to prevent predatory lending – many people affected
Alderman, Professor at Houston University Law School, 2001
(Richard M. Alderman, Dwight Olds Chair in Law and Executive Director of the Center For Consumer Law, Winter 2001, Houston
Law review)
What the court ignores, however, is that while the individual's rights may be preserved, the beneficial and deterrent effects
of the class action have been precluded. At issue in West Suburban Bank was the practice of making short
term loans of small amounts at interest rates of nearly 1000%. n105 The suit alleged that the lender
violated the TILA and EFTA by "failing to properly disclose the high rate of interest , and by requiring
loan applicants to open accounts" and irrevocably preauthorize electronic payments. n106 Effective redress could be
obtained only through a class action, maintained on behalf of all the individuals who had been
adversely affected by this predatory lending practice.
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Legal Services Corporation Affirmative
Dartmouth 2K9
25
Predatory Lending => Econ collapse
A continuation of predatory lending causes economic collapse
Georgia, staff writer for green bay press gazette, 2009
(Jacque Georgia, 6/19/2009, “Jacque Georgia column: Jobs, good lending practices key to recovery”,
http://www.greenbaypressgazette.com/article/20090619/GPG0703/906190567/1247/GPG03/Jacque-Georgia-column--Jobs--goodlending-practices-key-to-recovery)
When it comes to home financing, we have started to see lending turn back toward more traditional practices to ensure only
good loans are made. However, progress must be made to go back to good lending where lenders look at an overall
loan/borrower and grant those that are good and deny those that are bad — in essence, common sense-based lending.
However, when credit card companies raise interest rates, decrease spending limits and the "want" loans
for items such as cars, RVs and boats are also limited, even on the good borrowers, we start seeing the
down economic cycle we are currently in. I believe that all products were good products. They just were not good
for everyone and did not have the proper education passed down to consumers to ensure good choices were made. So,
although the pendulum had to come down from the extreme position it was in to help correct these bad
choices and prevent further losses to financial institutions, institutions have been pushed to swing that
pendulum too far in the opposite direction. It would appear in some cases they have lost confidence in
their ability to identify the difference between a good loan and a bad loan. We see many trickle-down effects
of the housing crisis and credit crunch in other industries, too, such as: construction, finance, automotive and the boat
industry to name a few. Some of these industries blame the credit crunch as their main reason for layoffs and bankruptcy.
Companies announcing bankruptcy and layoffs only cause credit to tighten even more. Borrowers who are employed in one
of these industries are finding themselves being questioned more because of their ability to repay needing to be taken into
consideration. Thus, the vicious cycle continues. We need to find some way to end the cycle we are
spinning around in. I don't have all the answers. Unfortunately, I don't know that anyone does.
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Legal Services Corporation Affirmative
Dartmouth 2K9
26
Predatory Lending => Econ collapse
Predatory Lending causes economic collapse
Kropp, staff writer for Social Funds, 2008
(Robert Kropp, The largest personal finance site devoted to socially responsible investing, “Effects of Predatory Lending Lead to
Economic Crisis”, http://www.socialfunds.com/news/article.cgi/article2554.html(
There is widespread agreement that the primary cause of the current crisis was the bursting of the housing
bubble and the subsequent delinquencies and defaults by homeowners on subprime mortgages. Because of
historically low interest rates during the first half of the decade, the extension of credit grew dramatically. So-called "predatory
lenders" devised subprime mortgages to lure those unable to qualify for a conventional mortgage into the
housing market. Predatory lenders offered prospective home buyers with low incomes or poor credit histories
mortgages that were structured to be affordable in the short term, but whose adjustable rates caused a sharp
increase in payments after a couple of years. As long as housing prices continued to rise, home buyers were told, they could
seek advantageous refinancing before the higher rates took effect. Instead of maintaining a relationship with their borrowers, lenders
then sold the mortgages—which were then packaged into residential mortgage-backed securities. In this scenario, the lender is paid a
loan origination fee and the investors are re-paid principal and earn interest. Thus freed of risk for writing subprime loans, predatory
lenders continued to find ways to entice new home buyers into the market. But as Mark Pinsky, President and CEO of Opportunity
Finance Network, a national network of community development finance institutions (CDFIs), pointed out to SocialFunds.com, "The
crisis is actually a system-wide failure. Greedy lenders and investors, rating agencies paid by issuers and letting investors down, and
regulators not paying attention all contributed to it." Meanwhile, on Wall Street, investment banks and other institutions packaged
high-risk mortgage loans in ways that garnered the highest ratings from rating agencies, and sold them to investors eager to cash in on
the seemingly endless flow of money. Mortgage originators received commissions when loans were sold, encouraging even more
brazen lending practices. As long as housing prices continued to rise at unprecedented rates, the effects of such irresponsible lending
practices were largely hidden from view. But as fears of inflation mounted and interest rates started to climb, the housing market
stalled. By early 2006, housing prices started to drop. Homeowners with risky mortgage loans found themselves with real estate worth
less that the amount of their loans and were unable to refinance. As higher interest rates on adjustable rate mortgages
began to kick in, homeowners began to default on loans at an increasing rate. But as Mel Miller, Executive Vice
President and Chief Investment Officer of Heartland Financial USA, a financial services company with 60 community banking
locations, told SocialFunds.com, "The actual delinquency rate on mortgages of about nine percent was not too bad. The fact that the
money was so heavily leveraged was the problem." When the mortgage-backed securities began to lose money, the Wall Street
investment firms involved with them began to take on additional debt. Because credit had been so easy during the bubble
years, many firms already had precarious asset to debt ratios. When the bubble burst, these firms were suddenly
faced with bankruptcy. Miller of Heartland Financial has been in the banking industry for twenty-five years. "I can count five
crises during that time," he said, "But this one will take a while to be corrected." Miller concurs that the federal government
had to step in to stem the tide of failures before credit dried up completely and the economy ground to a halt.
"The government had to bring confidence," he said. But he did express reservations about the bailout as
originally espoused. "As the CEO of PIMCO pointed out, we have to be wary of privatizing profits while socializing losses."
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26
Legal Services Corporation Affirmative
Dartmouth 2K9
27
Predatory Lending => Econ collapse
Predatory lending harmfully affects every sector of the economy – risks collapse
Aaron, staff writer for the center for Public Integrity, 2009
(Kat Aaron, May 6, 2009, “Predatory lending: A Decade of Warnings”,
http://www.publicintegrity.org/investigations/economic_meltdown/articles/entry/1309/)
Cathy Lesser Mansfield, a law professor at Drake University, presented the House committee with specific and alarming
data on the interest rates and foreclosure rates of subprime loans nationwide. “ Probably the scariest data for me
personally,” Mansfield testified, “was a single pool foreclosure rate.” Mansfield had looked at the foreclosure rate
for one pool of loans that had been bundled and sold on Wall Street. About a year and a half after the pool was
created, almost 28 percent of the loans were in delinquency or foreclosure, she said. “That means in that
single pool, if that is symbolic for the industry, that means there might be a one in four chance of a
borrower losing their home to a lender,” she told the committee. Representative Ken Bentsen, a Democrat from
Texas, found the high default rates worrying, particularly because the nation was enjoying a healthy economy. “ I think
you could argue that, assuming we have not repealed the business cycle and there is a downturn at
some point,” he said, “you could experience even astronomical default rates… That would spill over into
other sectors of the economy, both in deflating the real estate market, as well as impact the safety and
soundness of the banking system.”
Predatory Lending causes Economic Collapse
The New York Times, Editorial Section, 7/20
(7/20/2009, “Sharks circle in Congress’)
the Federal Reserve was granted sweeping powers to fight predatory
mortgage lending in 1994. But it did not issue new rules until July 30, 2008, he said, ''only after the
world economy had collapsed due to the collapse of the U.S. housing market triggered by predatory
lending.'' Federal regulators did more than fail to protect consumers from predatory mortgages and
usurious credit card rates. They also made the financial suffering worse by invalidating state fair-lending laws that
As Mr. Plunkett told Congress,
might have shielded millions of people.
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27
Legal Services Corporation Affirmative
Dartmouth 2K9
28
Inherency: First Amendment
Right to petition infringements endanger the first amendment
Kimberly Breedon, J.D. University of Cincinatti, Winter 2008 (“Toward a Cumulative Effects Doctrine in First Amendment
Jurisprudence.” Loyola Law Review. 54 Loy. L. Rev. 855. Lexis //ZE)
As the Button-Trainmen line of cases demonstrates, the Court has consistently recognized the need to view the First Amendment's
political rights as an intertwined, inseparable bundle. This Part reviews the potential impact that regulation of one discrete political
right may have on other First Amendment rights under a cross-over or cumulative effects theory. The theory is then applied to
Southern Christian to demonstrate how that case would have yielded a different result had the courts considered the cumulative effects
that Rule XX has on the First Amendment petition rights of the indigent communities that law school clinics serve. A. Cross-over or
Cumulative Effects Speech regulations that infringe not upon free speech per se, but rather upon free association or the right to
petition, or both, violate the First Amendment no less than if such regulations infringed free speech itself. Likewise, associational
regulations may not infringe upon free association protections, nor may they infringe upon free speech or petition rights. Similarly,
regulation of government petition may not work an infringement upon speech or association without running afoul of the First
Amendment. Such are the principles undergirding the First Amendment's protection of political rights as a bundle. These principles
are evident in Button, where the state of Virginia sought to regulate attorneys' speech by prohibiting solicitation, and where the Court
deemed the effect of the regulation as impermissibly curbing not only the attorneys' speech and associational rights, but also their
employing organization's petition rights. 291 The principles are evident in Primus, where the South Carolina Bar Association
prohibited pro bono solicitation (speech), and where the Court declared the restrictions unconstitutional because they impermissibly
impaired associational guarantees and, by implication, because they infringed the right to petition by dampening the possibility for
litigating unpopular causes. 292 The principles are evident in Velazquez, where the federal government enacted restrictions on
attorney speech by prohibiting lawyers receiving funds from the Legal Services Corporation from advocating certain legal positions in
permitted cases on behalf of their clients, and where the Court [*900] determined that the speech restrictions impermissibly impaired
free speech and the right petition protections. 293 The principles are evident in Trainmen, where the Virginia State Bar obtained an
injunction against a union that had channeled union members' claims to lawyers selected by the union's Department of Legal Counsel,
in violation of the state's attorney solicitation rules (a speech regulation), and where the Supreme Court invalidated the injunction as
violative of the First Amendment's guarantees of not only freedom of speech but also freedom of association and petition. 294 The
principles are evident in United Mine Workers, where the Illinois State Bar Association obtained an injunction preventing a union
from employing a salaried attorney to represent its members in worker's compensation claims, and where the Court struck the
injunction because it infringed upon the political bundle of right as a whole. 295 The principles are evident in United Transportation
Union, where the State Bar of Michigan obtained an injunction against a railroad union prohibiting it from directing union members to
designated attorneys for bringing claims pursuant to the Federal Employers' Liability Act in violation of the state's solicitation rules
(speech regulation), and where the Court invalidated the injunction as an impermissible impairment on freedom of association and
meaningful access to the courts (petition). 296 The principles are evident in Bates, where the State Bar of Arizona imposed
disciplinary sanctions on two attorneys for violating a professional rule that barred advertising (speech) by attorneys, and where the
Court held that the rule violated the attorneys' First Amendment protections, in part because it erected a barrier to petitioning the
government by curbing the ability of the aggrieved to obtain information about their legal rights (association) and the means of
vindicating them (petition). 297 The principles are evident to anyone who is looking. If courts consider the effects of a speech
regulation on only speech itself, they may well be looking in the wrong place. An understanding of the First Amendment on these
principles means that speech regulations must be analyzed not only by their effects on free speech protections but also by their effects
on free association and right to petition guarantees. Similarly, [*901] laws governing association must be evaluated by their effects
not merely on the freedom of association but also their effects on the freedom of speech and the right to petition. And, finally, state
regulation of access to courts, or other petition activities, must infringe neither the right to petition nor the freedom of speech, nor the
freedom of association.
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Class action restrictions are unconstitutional – viewpoint discrimination
Illisabeth Smith Bornstein, J.D., U of Chicago, 2003 (“COMMENT: From the Viewpoint of the Poor: An Analysis of the
Constitutionality of the Restriction on Class Action Involvement by Legal Services Attorneys.” The University of Chicago Legal
Forum. 2003 U Chi Legal F 693. Lexis //ZE)
The Velazquez Court's finding that one of the 1996 restrictions constitutes viewpoint discrimination and distorts the functioning of the
judiciary can apply to the class action prohibition as well. The government is not speaking or funding others to convey a governmental
message when it finances LSC. Despite claims of being "activist," the LSC has continued to address the social issues faced by the
poor, as envisioned by President Nixon. 157 The position LSC clients take on these social issues is a viewpoint--one against which
Congress has impermissibly discriminated in its decision to fund only certain legal services. The government has not provided any
compelling interest for silencing viewpoints that may only be expressed in a class action. Accordingly, it cannot select which types of
arguments may be litigated by the attorneys it funds. Because the courtroom is considered the prime marketplace for arguing a legal
principle, and because the clients served by the LSC, by definition, have few, if any, other options for legal counsel, a prohibition on
the use of legal procedures, such as a class action, effectively ensures that the rights sought to be protected in the class action will not
be heard in the legal marketplace. Such a result distorts the function of the courts by artificially removing arguments and theories from
the province of judges. 158 Despite the presence of the Dobbins suit, 159 there is concern that the holding of Velazquez is too narrow
and the political culture too fragile to support a challenge to the class action prohibition. 160 This Comment suggests that when and if
legal challenges to the class action prohibition surface in greater number, it is possible to challenge the restriction on the basis of
viewpoint discrimination. Long before the 1996 restrictions, the ABA Committee on Ethics and Professional Responsibility declared
that it was [*716] unethical to limit an attorney's ability to file a class action lawsuit when such relief was essential for the attorney's
client. 161 A closer look at the class action prohibition shows that the restriction infringes upon established First Amendment rights
and runs contrary to the mandate of the LSC--to provide high quality legal services to those who cannot otherwise afford them.
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Low-income persons at highest risk
Obese persons are most likely to be underprivileged minorities
Ashley B. Antler – J.D. Candidate, Benjamin N. Cardozo School of Law, 2009; B.A., Brown University, 2002; Winter 2009; “The
Role of Litigation in combating obesity among poor urban minority youth: a critical analysis of Pelman v. McDonald’s Corp.”
Cardozo
Journal
of
Law
&
Gender,
Yeshiva
University;
Lexis,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7014965568&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7014965571&cisb=22_T7014965570&treeMax=true&treeWidth=0&csi=15
5852&docNo=1
Obesity is a grave public health problem facing the United States today. n5 Childhood obesity, in particular, is increasing
at an alarming rate in this country: in 2003 to 2004, over 33% of children and adolescents from ages two to nineteen [*278] were at
risk of being overweight or were overweight, n6 compared to 28.2% in 1999 to 2000. n7 The number of U.S. children who are
overweight has increased by more than 100% since 1971, and continues to rise. n8 Today, one in every three American children is
obese or at risk of becoming obese. n9 Furthermore, 80% of obese adolescents will become obese adults. n10 Due to the prevalence of
obesity, children today run the risk of becoming the first generation in American history with a shorter life expectancy than their
parents. n11
Rising childhood obesity rates are also related to significant social and economic costs. Obesity rates are associated
with a rise in chronic diseases such as diabetes, asthma, heart disease, high blood pressure and arthritis. n12 This has resulted in
increased health costs for hospitals, families, schools, and taxpayers. n13
[*279] While the obesity epidemic affects all U.S. children and adolescents, obesity rates among children in
several racial/ethnic minority populations are disturbingly high or are increasing faster than average. n14 Obesity
rates among African-American and Hispanic children and adolescents illustrate this point: in the early 1990s, among girls aged six to
eleven, 23% of white girls were overweight, compared to 29% of Mexican-American girls, and 31% of African-American girls. n15
The disproportionate number of overweight Hispanic and African-American children and adolescents may be
the result of several factors, including socioeconomic status and cultural preferences. Individuals in lower
socioeconomic groups are more likely to be obese, n16 and census figures show that African-Americans and
Hispanics are more likely to be poor than whites. n17 Social and economic disparities are intimately connected
with a child's risk of becoming obese, particularly since the environments of socio-economically disadvantaged
youth often do not support healthy behavior. n18 Other factors, such as cultural upbringing, may also contribute to these
disparities. n
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Low-income persons at highest risk
People in poverty are at the highest risk for obesity
Bio-Medicine, website with biological and medical news, 2007
(“Fast Food (Low-Cost Diet) for Obesity”, 1/3/2007, http://www.bio-medicine.org/medicine-news/Fast-Food--28Low-Cost-Diet-29for-Obesity-17095-1/)
Fruits and vegetables are one of the keys to good health; Barbara Rolls
invented the sensible Volumetrics diet
encouraging people to eat large quantities of low-energy-dense foods rather than small portions of
energy-dense foods. But Volumetrics and similar health-food diets miss an important element: the
economic factor, which, for somebody on a tight budget, is not feasible. A British study titled “Poor Families
‘Priced Out of a Healthy Diet”' finds a 51% price gap between shopping carts full of nutritious foods
versus unhealthful foods. For people, who can barely afford the least-expensive foods, these more
expensive, healthful foods are clearly out of reach. Moreover, people are less concerned about the
aesthetic consequences of obesity.
Impoverished persons can’t access healthy foods – leads to obesity
News-medical.net, website for the latest medical news from around the world, 2004
(THE MEDICAL NEWS, 12/2/2004, http://www.news-medical.net/news/2004/12/02/6603.aspx)
"Obesity disproportionately burdens low-income, ethnic minority populations," said Rebecca E. Lee,
assistant professor of health and human performance and lead researcher on the study. "The results suggest that these
populations have less access to healthy foods." The study found that people living in low-income,
urban neighborhoods had access to at least one convenience store and a liquor store that sold
convenience foods, but very few supermarkets or grocery stores. The produce that was available to
these neighborhoods included few fresh fruits and hardly any vegetables. In contrast, the high-income urban
neighborhoods studied were more likely to have access to supermarkets and grocery stores and the quality and quantity of
produce available was higher than those found in low-income neighborhoods.
Obesity disproportionately affects the poor
Science Daily, website for latest research news, 2008
(Research news in natural and physical sciences, 2/10/2008, http://www.sciencedaily.com/releases/2008/02/080207163807.htm)
They found that neighborhoods with decreased economic and social resources have higher rates of
obesity. They also found that residents in low-income urban areas are more likely to report greater
neighborhood barriers to physical activity, such as limited opportunities for daily walking or physical
activity and reduced access to stores that sell healthy foods, especially large supermarkets.
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Fast food restaurants are targeting and exploiting poor minorities for profit leading to an increase in
obesity and other health problems for the urban poor
Ashley B. Antler – J.D. Candidate, Benjamin N. Cardozo School of Law, 2009; B.A., Brown University, 2002; Winter 2009; “The
Role of Litigation in combating obesity among poor urban minority youth: a critical analysis of Pelman v. McDonald’s Corp.”
Cardozo Journal of Law & Gender, Yeshiva University; Lexis,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7014965568&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7014965571&cisb=22_T7014965570&treeMax=true&treeWidth=0&csi=15
5852&docNo=1
In addition to neighborhood layout, the built environment also includes the multiple facets of the "nutrition environment:" nutrition
sources in homes, schools, [*282] and the community that influence food consumption. n39 Research on nutrition environments
outside the school and home falls into two categories: "community nutrition environments, which include the number, type, and
location of food outlets," and "consumer nutrition environments, which cover the availability and cost of, as well as information about,
healthful and less healthful foods inside those outlets." n40 An awareness of the multiple influences that shape the daily
lives of low-income minority youth, especially in regards to food choices, is critical to understanding causes of
the childhood obesity epidemic in this population. n41 The community and consumer nutrition environments may, in part,
explain the impact of obesity on low-income urban minority youth. n42 Poverty prevents many Americans from having
access to healthy foods. n43 In particular, "food insecurity - [the] limited or uncertain availability of
nutritionally adequate and safe foods or limited or uncertain ability to acquire acceptable food in acceptable
ways," - disproportionately impacts urban low-income communities of color. n44 Such food insecurity is caused in part
by the dearth of well-stocked supermarkets and reliance on food programs that make an adequate diet difficult to attain. n45 Several
studies have concluded that low-income and minority neighborhoods have fewer supermarkets and healthy food
options, as well as lower quality produce available, compared to more affluent and white neighborhoods. n46
Access to supermarkets has been linked with healthier eating and increased consumption of fruits and vegetables by African-American
adults. n47 Therefore, the diets of many of the poorest citizens in this country are shaped less by their free will, and
more by the lack of food choices and retailers available to them. n48 Amidst a lack of healthy food alternatives,
there is an astonishingly high concentration of fast food restaurants in poor urban neighborhoods. n49 Fast food
franchisors have become aware of the profits to be made by locating outlets in [*283] urban communities; as a result, there is a
growing concern over the high concentration of fast food franchises in cities, n50 and in particular, low-income
minority communities. For example, according to "[McDonald's] store location directory, there are approximately
70 of [McDonald's] stores within a five mile radius in the Bronx, New York, which is an average of 14
McDonald's stores per square mile in Bronx County, New York alone." n51 Consequently, the urban poor often
rely on fast food restaurants as a major source for food. n52 Low-income children are likely to eat in fast food restaurants,
particularly McDonald's, at least once a week or more. n53 Fast food companies target urban, low-income, and black
communities. Studies show that black and low-income neighborhoods are more likely to contain higher numbers of fast food
restaurants than white communities. n54 The percentage of black residents was found to be an even more powerful predictor of the
concentration of fast food restaurants in a given community than income. n55 Such targeting of urban, low-income, and black
communities is troubling because it may be causing people in these neighborhoods to eat more unhealthy food.
Researchers hypothesize that more convenient access to fast food may result in higher consumption of these products, and hence
higher obesity rates. n56 Higher consumption of unhealthy foods in low-income minority communities may be fueled
by the combination of several factors: limited food choices within the neighborhoods and limited transportation
to other neighborhoods, as well as financial constraints, which drive people to seek out the highest number of
calories for the smallest price tag. n57 [*284] It is also worth noting that for certain minority populations, fast food
restaurants have a distinct cultural significance, and serve as "destinations, [or] desirable social milieus." n58 For example, one scholar
of race and class oppression and the law has explained that "dining at a fast food restaurant has a different significance for AfricanAmericans than for other racial/ethnic groups and fulfills a different set of consumer tastes or preferences." n59 She explains that while
African-Americans are less likely to eat out in casual or family-style restaurants than other ethnic groups, African-Americans,
particularly those with children, are just as likely to eat at fast food restaurants as other groups. n60 Finally, fast food restaurants
contain menu items like fried fish and chicken, which are "staples of the soul food diet many blacks prefer." n61 Through
advertising campaigns, corporate giveaways, and even the setup of their restaurants, food corporations
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strategically and effectively target minority communities. n62 For example, McDonald's supposedly "reconfigured the
seating layout of some of its restaurants in areas heavily populated by Hispanics to provide larger group areas where Hispanic families
can sit together, [in recognition of] the importance of extended communities in many Hispanic communities." n63 Beverage companies,
such as Coca-Cola and PepsiCo, also utilize similar "guerilla-marketing tactics" to solicit African-American and Hispanic customers,
in an effort to drive product sales and distribution in urban neighborhoods. n64
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Class Action Key to Solve Obesity
Social policy tort litigation is the most effective means of seeking social change
Ashley B. Antler – J.D. Candidate, Benjamin N. Cardozo School of Law, 2009; B.A., Brown University, 2002; Winter 2009; “The
Role of Litigation in combating obesity among poor urban minority youth: a critical analysis of Pelman v. McDonald’s Corp.”
Cardozo Journal of Law & Gender, Yeshiva University; Lexis,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7014965568&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7014965571&cisb=22_T7014965570&treeMax=true&treeWidth=0&csi=15
5852&docNo=1
There is no single definition of fast food obesity lawsuits; rather, many different legal claims are being classified under the label of
obesity litigation. n103 Broadly speaking, obesity lawsuits "claim that companies failed to warn consumers of the harmful contents of
their food; that food advertising is misleading or deceptive; that food is addictive ... ; or that defendants' food contributed to
consumers' obesity." n104 "Tobacco-Style lawsuits" are a distinct subset of obesity lawsuits, of which Pelman v. McDonald's Corp. is a
prime example. n105 "Tobacco-Style Suits" are defined as "claims of personal injury based on eating fattening food or claims of
consumer fraud based on an alleged lack of sufficient disclosure of the nutritional impact of junk food." n106 Scholars posit that
fast food litigators have been inspired by the success of earlier tobacco lawsuits, which resulted in tobacco
companies' liability for large sums of money, reimbursable to Medicaid. n107 Traditionally, setting public
policy through litigation has most prominently been through class-action lawsuits, often mass torts. n108 However,
tobacco-style [*290] obesity litigation may also be characterized as what one legal scholar has dubbed "social policy tort" litigation,
n109
defined as follows: In addition to seeking monetary compensation for individuals and public entities, [social policy tort] litigation
seeks the kind of industry-wide changes in corporate products and practices that advocates have pursued, without much success, in
state and federal legislatures ... . These lawsuits have a political dimension that is not generally present in other damage class actions.
Social policy torts have successfully addressed public health issues that have been stymied in Congress. n110
Accordingly, some scholars assert that courts have become "the most active venue for social change in health
politics." n111 This is explained, in part, by the lack of political will, or political stalemate, which paralyzes
elected legislative and executive officials from acting. n112 Furthermore, the judiciary is well-suited to address
regulation of private behavior that has public consequences, such as smoking, food consumption, and gun
control. n113 The appropriateness of judicial policy making, however, is a very controversial issue among public health and legal
scholars alike.
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Class Action Key to Change Fast Food Industry
Class action lawsuits are the best way to change the fast food industry
Ellender, Regent University School of Law graduate, 2006
(David Ellender, graduate from Regent University School of Law, 2005/2006, Regent University Law Review)
It has been proposed by some commentators that the best path to success for fast food litigation would
be class-action lawsuits, rather than individual lawsuits. n105 The thought is that massive lawsuits against the fast
food industry could most readily be brought by the states in order to offset the massive healthcare expenses incurred by
their Medicaid programs due to fast food related health problems. n106 While one may question whether this is a wise course
of action to take, it is a maneuver which has already proven effective in the tobacco lawsuits. n107
Another strategy that has been encouraged by the proponents of this fledgling area of products liability
law is to bring more suits. As the idea that the fast food industry should be held liable for creating such
a product is repeatedly stated like a mantra, the public will be more and more inclined to believe it .
According to Professor Banzhaf, a major advocate of fast food litigation, "Initial suits have real difficulties because the
public has real problems accepting new ideas and concepts. . . . It took us many years to get us to the point of educating
juries about tobacco, but now they are." n108
Class action lawsuits are the only way to change the fast food industry
Goldman, Beasley School of Law Graduate, 2003
(Jonathan S. Goldman, Fall 2003, Temple Political & Civil Rights Law Review, Lexis)
Clearly, the class action lawsuits filed against the fast food industry by Barber,
Pelman and Bradley--and
the avalanche of similar lawsuits that are likely to follow--present greater issues with economic,
political, and moral dimensions. The lawsuits against the fast food industry set up dynamic tensions
between paternalistic scapegoating and personal responsibility. It is common knowledge that fast food
is generally bad for you, and none of these fast food companies has ever forced a single plaintiff to eat even one salty,
greasy french fry. Barber and the others made personal choices of their own free will. However, one must ask: Were
these individuals making informed choices, and if not, were they able to do so? If not, does the fast food
industry have a greater duty to disclose the dangers inherent in consuming its food products? And, are the dangers inherent
in eating fast food even reasonable dangers or dangers that a reasonable person might expect? There is no evidence, as
of yet, that fast food is chemically addictive in the way that cigarettes are, but there is evidence of
psychological addiction or "craving." Certainly by targeting their products to the youngest and most
"vulnerable" in society, these fast food companies may be crossing some ethical, if not legal, lines.
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Obesity Impact - Causes Economic Collapse
Obesity causes economic collapse – healthcare costs
Adams, Natural News Editor, 2004
(Mike Adams, “the Health Ranger” for Natural news.com, July 26, 2004, http://www.naturalnews.com/001516.html)
Obesity is more than just a personal health problem. Certainly, it has dire consequences to an individual in terms
of lost productivity, lower quality of life, encouraging the onset of secondary disease like diabetes and heart disease (and
outrageous medical bills). But the costs of obesity go far beyond individual costs -- they extend to the
nation as a whole. Why? Because many of the health care procedures performed in the United States
are paid for by taxpayer dollars. Even when such medical costs are covered under private insurance, that insurance is
paid for by other members of the public, making it a burden that must be carried by the general public, and not just the
individual who is incurring these costs. Furthermore, obesity reduces the lifespan (and especially the working life) of
individuals, thereby robbing society of the productivity those people would otherwise normally
contribute. In plain language, a person who is healthy and who is mentally and physically functioning at an optimum
level of health can contribute more to society in terms of ideas, productivity, and creativity than a person who is confined to
a hospital bed because they have undergone gastric bypass surgery or some other procedure that was ordered as a result of
their obesity. The long-term trend in all this is somewhat alarming: Both states and the federal
government stand to be bankrupted by health care costs associated with obesity and the chronic
diseases caused by obesity. This is becoming more obvious now that Medicare has officially
announced that treatments for obesity will be paid for with taxpayer dollars. It threatens to drain public
funds in the never-ending treatment of obese citizens.
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Obesity Impact – Kills More than War
Unchecked rise in obesity will kill substantially more people than war
Lalasz, Senior Editor at Population Reference Bureau, 2005
(Robert Lalasz, May 2005,
http://www.prb.org/Articles/2005/WillRisingChildhoodObesityDecreaseUSLifeExpectancy.aspx?p=1)
Projecting life expectancy is more than an academic exercise. Many U.S. government agencies—including the Social
Security Administration, Congress, and the military—use such forecasts to guide policymaking on issues from tax rates to
the solvency of age-based entitlement programs. And almost all these projections assume that U.S. life expectancy will
continue to rise as steadily as it has since the 1930s, spurred by new medical approaches and technology as well as
behavioral shifts towards healthier lifestyles. But Olshansky and his co-authors question whether medicine and
public health interventions can counter the rapid increases in U.S. obesity rates over the last two
decades, especially among children. The incidence of obesity—which researchers have linked to an elevated
risk of type-2 diabetes, coronary heart disease, cancer, and other health complications—rose
approximately 50 percent in the United States in both the 1980s and 1990s. Two-thirds of all U.S. adults are
now classified as overweight or obese, as are 20 percent to 30 percent of all children under age 15. And Olshansky argues
that this rapid rise in obesity rates will cause a "pulse event" of mortality in the United States—akin to
the large number of deaths caused by an influenza pandemic or a war, but spread out over the next four
or five decades. "Any time there's an increase in early-age mortality [deaths before age 50], it has an effect on overall
life expectancy," says Olshansky. "And when these children reach their 20s, 30s, 40s, and 50s, they'll face a higher risk of
death. It's roughly equivalent to discovering that a large segment of our young people who never smoked suddenly decided
to smoke."
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Obesity Impact – 300,000 a year
Obesity kills 300,000 a year
Besharov, American Enterprises Institute, 2003
(Douglas Besharov, Testimony before Committee on Agriculture, April 3, 2003,
http://www.welfareacademy.org/pubs/foodassist/testimony-040303.pdf)
Being overweight is not simply a matter of aesthetics. The growing
girth of Americans is a major health
catastrophe. Overweight people are three times more likely to have coronary artery disease,5 two to six
times more likely to develop high blood pressure,6 more than three times as likely to develop type 2 diabetes,7 and
twice as likely to develop gallstones than normal weight people.8 Obesity, of course, is more serious, causing
an estimated 50 to 100 percent increase in premature deaths (estimated to be 300,000 deaths per
year).9
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Class Action Key to Take Down Fast Food
Class action lawsuits are key to threaten fast food industry
Hughes, writer for online legal help site, 2005
(Rod Hughes, writer for Legal Assistant Today, August 2005, http://www.docstoc.com/docs/1695808/Current-Class-Action-Lawsuits)
Pharmaceutical executives shudder at the thought of them. Tobacco companies abhor them. Fast food
giants scramble to avoid them, and too many Americans seem to find themselves entangled in them .
However, class action lawsuits are on the rise, and at the heart of nearly every one is a paralegal or team
of paralegals working to either provide the ability to prosecute them or defend against them.
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Obesity Litigation Spills Over
Obesity/fast food litigation shapes public health policy
Ashley B. Antler – J.D. Candidate, Benjamin N. Cardozo School of Law, 2009; B.A., Brown University, 2002; Winter 2009; “The
Role of Litigation in combating obesity among poor urban minority youth: a critical analysis of Pelman v. McDonald’s Corp.”
Cardozo Journal of Law & Gender, Yeshiva University; Lexis,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7014965568&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7014965571&cisb=22_T7014965570&treeMax=true&treeWidth=0&csi=15
5852&docNo=1
Litigation can be a useful vehicle to fight the obesity epidemic and shape public health policy. This section outlines
several benefits of obesity litigation. In particular, litigation can be a useful vehicle to reframe the obesity issue. It can
also act as a catalyst for industry change, heightened social awareness, and cultural change. Furthermore, the
judiciary may present unique advantages over the legislature for setting obesity policy.
Perhaps one of litigation's greatest contributions to a larger public health strategy is its ability to reframe the
obesity issue. n114 Proponents of using litigation to combat obesity argue that such litigation may be a helpful tool for framing the
obesity issue as a public health issue. As discussed in Part I.B., supra, there are two ways to frame the issue of obesity: as an
environmental issue and as one of individual choice. n115 The appropriate public policy response to the obesity epidemic is the direct
result of how the problem is framed; redefining the problem as either one of individual responsibility or as one of an
unhealthy food environment "redefines the politics" surrounding the solution. n116
[*291] Public health advocates are trying to reframe the issue of obesity, and have emphasized that one of the first steps in combating
the obesity epidemic is framing the issue as an environmental issue, rather than one of personal responsibility. n117 They emphasize
that obesity can only be combated through changing the environment to support healthy behavior. n118 In contrast, the food industry
and current legislatures place attention solely on the individual's caloric consumption and ability to change. n119
Lawsuits can be an effective vehicle to reframe the issue of obesity as it affects low-income urban minority
youth. Litigation can also be a valuable platform to publicize the effects of the built environment on individuals.
Public health practitioners can use litigation as an opportunity to frame the obesity epidemic as an environmental problem, and in so
doing, can challenge industry attempts to frame obesity as a failure of personal responsibility. n120 If the obesity epidemic is framed in
such a way so as to reveal that people are being manipulated or misled, then the politics of the policy response changes and focus is
shifted from obese individuals to the environmental forces influencing their food choices. n121 In fact, this is what happened, in
the aftermath of successful tobacco litigation, when the public became convinced that the tobacco industry had
made misleading claims: the "politics" around the issue changed. n122 When obesity among urban minority
youth is viewed as the result of the complex and unique interplay of several environmental forces discussed
earlier in this Note, fast food lawsuits may pose an important opportunity for social change.
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Inherency: Welfare Reform
Welfare rights violations not addressed – lack of resources for lawyers
Randal Jeffrey, Asst. Director New York Legal Assistance Group, Fall 200 3 (“Article: Facilitating Welfare Rights Class Action
Litigation: Putting Damages and Attorney’s Fees to Work.” Brooklyn Law Review. 69 Brooklyn L. Rev. 281 Lexis //ZE)
A paradox exists within contemporary welfare rights litigation. Despite a substantial number of violations and an apparent array of
incentives to file suit to remedy these violations, welfare rights litigation is generally too risky a proposition for attorneys to pursue.
Set against the whole of tort law, of which welfare rights are a part, the lack of litigation is especially perplexing. While general tort
lawyers spend substantial resources seeking and enlisting clients, attorneys who specialize in torts involving welfare rights violations
routinely turn away potential clients. 1 Encouraged by [*282] substantial and sometimes enormous fees, general tort lawyers
aggressively pursue clients through all manner of advertising media television, radio, phone books, and even mass transit. Conversely,
in the welfare rights context, the number of violations greatly surpasses the amount of litigation. Legal services organizations
throughout the country are swamped with those seeking to remedy clear violations of their rights to welfare, but they lack the
resources to represent even a fraction of their potential clients. Given that the Supreme Court has frequently described violations of
federal rights - including welfare rights - as torts that give rise to tort remedies, 2 the lack of welfare rights litigation is puzzling, to say
the least. This Article explores that disparity by examining the damages and attorney's fees that, in theory, should allow attorneys to
take on meritorious welfare rights litigation. Determining why these sources insufficiently fund such litigation will help reveal the
changes necessary to provide appropriate incentives to litigate in the welfare context. One initial, but ultimately inadequate,
explanation for the lack of welfare rights litigation is that, by definition, these plaintiffs have little or no money to pay attorneys. 3 Yet
this answer falls short because in other areas of tort law a client's poverty is no barrier to representation. In general tort litigation,
contingency fee arrangements routinely allow impoverished clients to retain attorneys. 4 Given that, the next question is why welfare
rights attorneys do not enter contingency arrangements with clients or, conversely, why private tort lawyers do not take welfare rights
cases. On top of potential contingency arrangements, welfare rights plaintiffs should have an easier time securing counsel because of
the availability of attorney's fees. The Civil Rights Attorney's Fees Awards Act of 1976 5 specifically authorizes [*283] courts to
award attorney's fees to prevailing parties in civil rights litigation, which includes most welfare rights litigation. 6 The Act establishes
attorney's fees as a method for enlisting "private attorneys general" to remedy civil rights violations by making fees available to
attorneys when their clients prevail. Theoretically, tort remedies and attorney's fees should combine to create powerful incentives for
attorneys to pursue welfare rights litigation. Yet the scarcity of welfare rights litigation continues to exist. By looking through the
prism of financial incentives, this Article recognizes that economic incentives play a critical role in what litigation attorneys choose to
pursue. 7 Arguably, this perspective is in tension with the notion that attorneys pursue welfare rights litigation for public-spirited
reasons. However, the financial incentives perspective does not mean that most welfare rights attorneys exclusively, or even chiefly,
consider economics when deciding what litigation to pursue. Attorneys at nonprofits, who pursue the bulk of this litigation, accept
positions making substantially less than their counterparts at private firms and government agencies. 8 But even the most publicspirited attorneys must be paid a salary, and their organizations must pay office overhead and the costs of litigation. 9 As Justice
Brennan eloquently wrote in a case concerning attorney's fees: "It does not denigrate the high ideals that motivate many civil rights
practitioners to recognize that lawyers are in the business of practicing law, and that, [*284] like other business people, they are and
must be concerned about earning a living." 10
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Inherency: Welfare Reform
Current welfare policy fails due to lack of enforcement despite proven legal means of challenging abusive
practices. Only increased legal services ends bureaucratic problems in antipoverty policy
Randal Jeffrey, Asst. Director New York Legal Assistance Group, Fall 200 3 (“Article: Facilitating Welfare Rights Class Action
Litigation: Putting Damages and Attorney’s Fees to Work.” Brooklyn Law Review. 69 Brooklyn L. Rev. 281 Lexis //ZE)
Throughout the United States, welfare administrators violate the law. As discussed below, numerous reported cases well document
these violations. 19 Despite being known, these violations have persisted for decades, 20 even though the laws governing welfare
programs generally clearly define how such programs must be administered. Moreover, the violations continue despite the availability
of a simple litigation model, discussed below, to challenge them. Before detailing the violations and how they can be remedied, this
Part first provides a brief introduction to the three welfare programs that this Article discusses: public assistance, food stamps, and
Medicaid. A. The Three Welfare Programs Even though public assistance, food stamps, and Medicaid are largely federally funded,
state and local agencies [*287] administer all three programs. Further, welfare departments often administer all three programs
through the same local welfare offices. Since each program serves different purposes through varying structures, each merits a
separate discussion. The Social Security Act of 1935 21 established the Aid to Dependent Children (ADC) program as the first major
federal program for cash assistance to households with children and little or no income or resources. 22 Congress renamed the
program Aid to Families with Dependent Children (AFDC) in 1962, 23 and then Temporary Assistance for Needy Families (TANF) in
1996. 24 The 1996 TANF legislation block-granted the program, meaning that the federal government now provides each state with a
specific amount of funds each year, with the states responsible for the remainder of the program funding. 25 Within a minimal federal
framework, states regulate and administer TANF-funded programs. In June 2002, just over five million people received
federallyfunded TANF benefits. 26 [*288] In addition to TANF-funded programs, many state and local governments run general
assistance programs. These programs serve households with little or no income or resources that are ineligible for TANF funded
benefits, primarily because the households lack children. 27 General assistance programs are completely locally funded, regulated, and
administered. In New York City, for example, over 200,000 people received general assistance in June 2003. 28 Congress created the
food stamp program in 1964 29 primarily to reduce hunger and malnutrition by providing food to impoverished households. 30 The
federal government regulates and funds the program, but leaves the responsibility and part of the cost of administration to the states.
31 While Congress has expanded the program since 1964, 32 it remains [*289] federally regulated. In August 2002, almost twenty
million people received food stamps. 33 Congress established the Medicaid program in 1965 to allow states to provide medical care
to those with little or no income or resources. 34 The Medicaid program is state funded with federal matching grants, federally
regulated, and state administered. As of the federal fiscal year 2000, Medicaid covered over forty-four million people. 35 Importantly,
for any discussion of welfare rights litigation, all three welfare programs - public assistance, food stamps, and Medicaid - create rights
in the benefits that they provide. 36 Once the benefits are established by law, those meeting the criteria for eligibility cannot be denied
benefits without due process of law. 37 The Supreme Court first endorsed this approach to welfare benefits in the landmark case of
Goldberg v. Kelly, where the Court, noting that public assistance benefits are an entitlement, held that due process protections apply.
38 While the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) 39 raises the question of whether
some or all state-administered TANF programs continue to create property rights, 40 no court [*290] has yet held that eligible TANF
applicants and recipients have no property interest in TANF benefits. 41 This property aspect, which essentially constitutionalizes
welfare programs, has important implications discussed later on. 42 The Goldberg decision remains the Supreme Court's most
powerful commentary on the importance of welfare benefits. In Goldberg, the Court recognized the value of welfare benefits both for
the individuals who receive them and society at large. 43 While both before and after the Goldberg decision the Court has held that
welfare benefits do not rise to the level of a fundamental right, 44 the view that such benefits are critical to those eligible for them
remains ensconced in contemporary jurisprudence. 45
B. Welfare Administrators' Failures to Comply with the Law Reported
cases document egregious cases of welfare administrators' noncompliance with applicable law. In actions challenging delays in
processing applications for public assistance, food stamps, and Medicaid, defendants failed to [*291] comply with the law up to
ninety percent of the time. 46 Defendants have failed to properly process recertifications up to one-third of the time. 47 In some cases,
the defendants have failed to timely conduct and implement fair hearing decisions over half of the time. 48 Welfare reform increased
the risks of noncompliance with the law by pressuring welfare administrators to reduce the welfare rolls, 49 sometimes with little
regard to what happens to clients after leaving welfare. 50 The story of welfare [*292] reform in New York City clearly demonstrates
this threat to welfare rights, as in some cases up to ninety percent of welfare applicants were denied benefits, prompting concern that
benefits were denied as a matter of course. 51 All across the country, pressures on state and local budgets continue to threaten access
to welfare programs. At the same time, the law is not merely aspirational. For example, even one instance of discontinuing food
stamps without notice violates the law. 52 While some courts have held administrators to only a "substantial compliance" standard, 53
the prevalent view is that welfare administrators must comply with the law in all instances. 54 To sustain a class action, [*293]
however, the Federal Rules of Civil Procedure require that the violations be more than just isolated. 55 Administrators fall short in
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ensuring that welfare programs comply with the law for several complicated reasons. Factors include low staff pay and understaffing,
56 administrators' failure to invest in management systems, the lack of political power of the poor to demand reform, 57 and the
dysfunction inherent within government bureaucracies. 58 But to those who depend on welfare, the reasons for administrative failure
are irrelevant. What matters is that the failure is harmful and violates the law. C. A "Simple" Welfare Rights Litigation Model In
theory, when welfare administrators systemically violate the law, challenging the failure in court should be straightforward. In broad
terms, an attorney can file a class action lawsuit against the administrative agency, determine through discovery the extent of the
defendant's noncompliance with the applicable law, and prevail at trial or through settlement if the noncompliance is sufficiently
widespread. Federal food stamp law can illustrate this "simple" model. 59 The statute and regulations require welfare administrators
to process food stamp applications within thirty [*294] days. 60 Food stamp administrators, however, often fail to process
applications within the time frame. 61 Under a simple litigation model, when a welfare rights attorney learns that a program is
systemically failing to timely process food stamp applications, 62 the attorney can file a class action lawsuit challenging the failure.
As part of discovery, the attorney can force the defendant to produce any statistics it maintains concerning the alleged violation. 63 In
the absence of relevant, reliable statistics obtainable through discovery, the attorney can conduct a statistically sound survey to
determine the level of the defendant's compliance. 64 If the produced statistics or the plaintiffs' survey documents a sufficient level of
violations, 65 then the court should certify the class and rule in the plaintiffs' favor. Regardless of what specific relief the court
ultimately grants to the plaintiffs, their attorney can collect fees pursuant to 42 U.S.C. $ S 1988 since the clients are a prevailing party.
These fees will reimburse the attorney's organization for the attorney's time and the suit's costs, and might even include surplus fees
when the attorney works for a nonprofit. 66 [*295] Moreover, even with the deregulation of the TANF program 67 and the Supreme
Court's curtailment of the rights enforceable under 42 U.S.C. $ S 1983, 68 this litigation model remains available to remedy violations
of the law for all welfare programs. These TANF and Supreme Court restrictions only affect the enforcement of statutory and
regulatory rights, 69 not the due process interests so frequently at issue in the administration of the public assistance, food stamps, and
Medicaid programs. 70 To protect those interests, the due process clause requires that the government administer its welfare programs
fairly under the applicable federal and state law. 71 Because it exemplifies unfair and arbitrary decision making, any systemic failure
to comply with the relevant law violates due process. 72 Yet despite the [*296] existence of an enforceable right and a potential
litigation vehicle, violations persist. D. Too Few Lawyers: Inadequate Funding for Nonprofits One explanation for the relative dearth
of welfare rights litigation is that those organizations that pursue it are severely underfunded. To meet their budgets and pay their staff,
nonprofits that engage in welfare rights litigation must continually cobble together funding from federal, state, and local governments,
private law firms, foundations, individuals, and other sources. 73 Individual welfare rights attorneys can supplement this institutional
funding with grants from sources such as fellowships 74 and Loan Repayment Assistance Programs (LRAPs). 75 All of these
resources combined, however, cannot meet the demand for free legal services. 76 [*297] In addition, Congress prohibited any
organization funded by the Legal Services Corporation (LSC) 77 from participating in class actions 78 as part of the comprehensive
and punitive restrictions imposed on LSC-funded organizations in 1996. 79 A substantial number of poverty lawyers work for
organizations funded through the LSC. 80 Thus, this restriction severely limited the pool of nonprofit attorneys who can pursue
welfare rights class action litigation.
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Inherency: Welfare Reform
The 1996 legal services restrictions prohibit the use of class action law for welfare reform
Joshua D. Blank (Associate at Harvard Law) and Eric A. Zacks (Associate at the University of Michigan) 2005: Dismissing the
Class: A Practical Approach to the Class Action Restriction on the Legal Services Corporation. Penn State Law Review. Lexis
The 1996 Restrictions explicitly prohibit grantees of LSC funding from filing any class action lawsuits on behalf of clients, regardless
of the subject matter or type of defendant. n24 Efforts to restrict the use of government funds for class action lawsuits have been
mirrored at the state level. In Texas, for example, funds from the Texas Interest on Lawyers Accounts and from the portion of court
filing fees reserved for the provision of civil services to low-income Texas residents can no longer be used in connection with any
state or federal class action lawsuit. n25
In addition to the class action prohibition, the 1996 Restrictions also ban legal services attorneys from attempting to influence federal,
state, or local government activities. Under the legislation, grantees of LSC funds are not permitted to lobby for or against any
executive order or any federal, state, or local government regulation. n26 Grantees are also [*8] prohibited from attempting to
influence the passage or defeat of any legislation, constitutional amendment, or referendum. n27
Grantees of LSC funding are also severely restricted from accepting particular cases because of their subject matter. The LSC statute
prior to 1996 prohibited grantees from accepting criminal cases, fee-generating cases, and desegregation cases, among others. The
1996 Restrictions, however, extended the prohibition to cases involving redistricting and most cases related to assisted suicide. n28 The
1996 Restrictions also prohibit all grantees from participating in any welfare-reform advocacy. n29 Consequently, under the statute, a
legal services lawyer representing clients before certain regulatory agencies would only be able to seek relief according to those
agencies' current regulations and could not challenge the validity of the regulations themselves.
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Class Action Litigation Key for Welfare Reform
Current restrictions on the LSC prevent it from litigating class action cases for welfare programs
WILLIAM P. QUIGLEY (Associate Professor of Law, Loyola University School of Law New Orleans) 1998: LEGAL
SERVICES: THE DEMISE OF LAW REFORM AND THE TRIUMPH OF LEGAL AID: CONGRESS AND THE LEGAL
SERVICES CORPORATION FROM THE 1960'S TO THE 1990'S. Saint Louis University Public Law Review. Lexis
Equally damaging to LSC were the new Congressional restrictions on the law reform activities permitted. While many of these
restrictions are a continuation of prior restrictions, several are newer and tougher restrictions on the legal activities afforded to poor
people. The 1996 law prohibited the use of LSC funds for programs which engaged in redistricting, n129 lobbying, n130 class action
suits, n131 legal assistance for many aliens, n132 training for political activities, including picketing, boycotts, strikes or demonstrations,
n133
attorney fee claims, n134 abortion litigation, n135 prisoner litigation, n136 any activities to reform federal or state welfare systems,
except for individual assistance to obtain benefits as long as the assistance does not seek to change the rule or law involved, n137 or
defending persons facing eviction from public housing because they were charged with the sale or distribution drugs. n138
The restrictions on class actions are the toughest ever imposed on the LSC. Section 504(a)(7) of the new law prohibits funds of the
Legal Services Corporation to be used to provide financial assistance to any person or entity "that initiates or participates in a class
action suit." n139 [*262] The LSC board moved quickly to implement the prohibition on class actions. n140 Their final rule clearly
attempts to bar all types of involvement in any class action, federal or state, at any stage. n141 The LSC Board, in its comments,
contemplates only very limited exceptions to the bar on class actions, essentially only allowing withdrawal from class actions and
advice. n142 Likewise, almost all legal action involving welfare, other than individual representation of an individual client in an effort
that does not challenge the validity of the underlying welfare regulation, is barred. n143 The statutory restric [*263] tions in other areas
of the Act were also quickly enacted into federal regulation. n144 While one regulation was overturned as a result of federal court
litigation, n145 the others, despite challenge, have so far survived. n146 Despite efforts to further phase out LSC, the appropriation for
1998 remained at $ 283 million with the restrictive regulations remaining in effect, joined by new accounting requirements. n147 As a
result of the 1996 Congressional actions, LSC has withdrawn from all class action litigation, ceased challenging the changes in the
welfare program [*264] and has returned to a docket overwhelmingly consisting of direct legal services to individual people. Law
reform by poor people's lawyers has all but ceased and LSC has been returned to the legal aid model of the first half of this century.
Conclusion It is usually the government which pays a poverty lawyer; it is also often the government that a poverty lawyer will oppose
in his client's interests. Thus, the more effective a poor people's lawyer, the more problems he poses for those who pay him. Even the
few poverty lawyers who do decide to make a career of poor people's law face the threat that the decision is not entirely in their hands;
the better they are at their jobs, the more likely it becomes that the government will eliminate their jobs. n148
The 1996 actions of Congress represent the absolute low point in the thirty year effort in trying to give poor people access to lawyers
who will help them engage in efforts to reform the laws that burden them. Since federally funded legal services began in the 1960s, it
has always been a struggle to spend adequate time and resources on law reform because of the overwhelming caseloads weighing
down poverty lawyers. Yet until 1996, law reform remained a viable goal for LSC along with its more traditional efforts to provide
direct legal services to the poor in a manner similar to that provided by legal aid organizations over the last century. In 1996, most of
the possible methods to achieve law reform in LSC have ceased to be authorized for poor people's lawyers. Congress has decided that
legal aid alone and not legal aid and law reform will be available to the poor. As a consequence, poor people's lawyers will not be
allowed access to all the tools available to the lawyers for the rest of the population.
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Class Action Key to Welfare Reform
Court class actions empirically succeed where other litigation has failed and they result in effective
compliance mechanisms through court oversight
Beth Harris (Law Student at the Institute of Legal Studies at the University of Wisconsin-Madison Law School) 1999 Representing
Homeless Families: Repeat Player Implementation Strategies. Lexis
In a "Memorandum Opinion and Order" delivered in May 1990, a U.S. District Court Judge in Illinois ordered the state child welfare
agency to provide sufficient housing and economic assistance to two class plaintiffs in Norman v. Johnson (also known as Fields v.
Johnson, Norman v. Suter, Norman v. Ryder, and Norman v. McDonald) (U.S. District Court 1990). The lawyers for the Department
of Children and Family Services (DCFS) were discouraged from continuing litigation because the judge had rebuffed all their legal
arguments (Tchen interview). When a new DCFS director was hired, he decided to negotiate a consent decree for the Norman class
action suit as well as for several other class actions against DCFS. The resulting "Consent Order" (U.S. District Court 1991)
constructed the legal foundation for child welfare policy reform to provide material assistance to families involved in the child welfare
system who were homeless or victims of domestic violence. The inclusion of domestic violence victims in the consent decree
expanded the class being served beyond what had been established during litigation. The "Consent Order" set out the requirements for
the development of a cash assistance program and housing advocacy program to be operated within [*925] the child welfare agency.
In addition, the role of the poverty lawyers in the implementation process was established. They would review all new policies,
procedures, programs, rules, regulations, training programs, and notices for implementation. During the monitoring process, they
would also have opportunities for input. Level of Judicial Oversight Judicial oversight was significant during the first 6 years of the
implementation of the Norman consent decree. The initial "Consent Order" (ibid.) provided that court supervised monitoring would
continue for 4 years. The court approved an "Agreed Order" (U.S. District Court 1995) to extend monitoring and judicial supervision
for another year. At the end of this period, the court accepted the poverty lawyers' motion to extend monitoring through 1997 (U.S.
District Court 1996a, 1996c). Consequently, during the initial period of implementation, court-appointed monitors were submitting
regular reports to the district judge concerning compliance with various aspects of the consent decree. n6 The poverty lawyers and
attorneys for DCFS also had opportunities to present to the court complaints about the implementation process when they were unable
to negotiate satisfactory agreements with each other.
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Restrictions own Immigrants
Restrictions prohibit poor, legal immigrant workers from seeking legal aid
Rebekah Diller and Emily Savner 09; Diller is a Deputy Director of the Brennan Center’s Justice Program and has a J.D. from New
York University School of Law, Savner is a Research Associate in the Brennan Center’s Justice Program and studied political science
and economics at New York University and graduated summa cum laude in 2008 as a member of Phi Beta Kappa; “A Call To End
Federal Restrictions On Legal Aid For The Poor” Brennan Center For Justice, New York University Law School
For certain categories of immigrants, including many who are lawfully in the United States, the
restriction places legal representation out of reach even when the stakes are high. In many parts of the
country, there are no non-LSC-funded legal aid offices that can serve excluded immigrants.94 As a result, they have
no place to turn when they face unlawful eviction, consumer fraud or an employer who has cheated
them out of wages. One of the groups hardest hit by the immigrant restriction are those migrant
workers here in the U.S. at their employer’s invitation on H-2B visas, a visa category for unskilled,
non- agricultural workers performing seasonal or temporary jobs. H-2B visa holders were excluded from legal
aid eligibility in 1996.95 Last year, Congress eased the restriction slightly and made those H-2B visa holders working in
the forestry industry eligible for legal aid.96 However, those H-2B workers employed in other industries, such as
construction, canning and tourism, remain ineligible.97 H-2B workers often perform tasks that risk physical
harm and frequently are mistreated by employers.98 Many do not speak English and work in
geographically isolated areas.99 Without access to legal services, they are virtually without recourse
when their rights are violated. Employers often take advantage of this fact by misclassifying
agricultural workers, who should fall under the relatively more stringent protections of the H-2A visa
program, as H-2Bs.100 H-2B workers in need of assistance have to be turned away by LSC-funded programs.101 LSCfunded Texas RioGrande Legal Aid describes one case that involved an “illegal guest-worker importation scheme” in
which a grower and two farm labor contractors used over 400 H-2B workers to harvest and pack onions and watermelons
from 2001 to 2007 in south and west Texas to circumvent the protections and benefits of the H-2A program, including
access to LSC-funded representation.102 TRLA was unable to represent any of the H-2B visa holders even though there
was reason to believe that they had been abused at the hands of their employer and should have been issued visas that
would have allowed them LSC representation.103
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Restrictions own Prisoners
Restrictions prevent needed prison litigation
Rebekah Diller and Emily Savner 09; Diller is a Deputy Director of the Brennan Center’s Justice Program and has a J.D. from New
York University School of Law, Savner is a Research Associate in the Brennan Center’s Justice Program and studied political science
and economics at New York University and graduated summa cum laude in 2008 as a member of Phi Beta Kappa; “A Call To End
Federal Restrictions On Legal Aid For The Poor” Brennan Center For Justice, New York University Law School
Legal services organizations are prohibited from representing anyone in prison in litigation.104 This
restriction has hampered efforts to resolve civil legal issues, such as those related to debt and child custody, that
can help persons in prison prepare for re-entry into their communities. In some parts of the country, the restriction
has left those in prison with virtually no access to civil legal representation.105 Michigan, for example, has a
bold and innovative Prisoner Reentry Initiative that aims to help incarcerated people as they prepare to reenter society.106
A team of community groups, faith- based organizations, and legal services providers stands ready to
provide essential services.107 An important component of this project is “in-reach” – going into prisons and jails to
address the problems confronting these men and women prior to release.108 But, even though this Michigan initiative is
primarily funded with state and private money, legal services programs, such as the Reentry Law Project of LSC-funded
Legal Aid of Western Michigan – a key legal player on the team – is barred from providing its services to anyone in a
prison.109 The Reentry Law Project can only assist individuals once re- leased, even though many of the problems facing
prisoners would be better addressed during incarceration, so that citizens can move immediately into employment and
housing upon release.110 For example, many prisoners face the loss of custody of their children while
incarcerated and would benefit greatly from the help of an attorney as they struggle to maintain family
relationships.111 In states that lack other funding or organizations designed to assist those in prison, the
restriction has meant that legal representation is effectively out of reach. For example, in Hawaii, where the
incarcerated population grew 138 percent from 1990 to 2006, the ACLU of Hawaii is the “only legal service agency with
the potential to assist the inmate population; however, due to their limited resources they only accept cases which would
result in a larger impact on the overall corrections system.”112
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Restrictions own Women and Minorities
Expanding legal services gives poor and disadvantaged women and minorities a voice to fight against
patriarchy and white privilege – this spills over to the broader movements
Frank Munger (Professor of Law at New York Law School) 2004: The Blackwell Companion to Law and Society. Ch 18.
If, as McCann and March claim, research on legal consciousness of the poor requires a relational and political perspective, critical race
and critical feminist scholars have played an important role not only by developing a relational perspective on poor women and
minorities, but also by addressing the issue of political voice. Critical feminist and critical race scholars were among the first to place
legal domination of poor women and minorities in historical and institutional context and, in this context, to explore the role of
emancipator practices capable of undermining legal domination.
Critical histories of the evolution of poverty and welfare set the stage for sociological research on contemporary welfare state policy
and its administration. Although a generation of progressive scholars of working-class conflict examined the role of law in class
domination and politics criticized them for ignoring the evolving nature of poverty, in particular its concentration among minorities
and women, groups never assimilated into the primary labor market and unlikely to participate in the class struggles envisioned by the
nineteenth-century theorists. Critical feminists and critical race historians have transformed our understanding by showing that
patriarch and racism have molded the character of the American system of public relief. Fraser and Gordon trace the cultural shofts in
the concept of “dependency” that prefigured these welfare policies. Dependency carries taken-for granted connotations that limit the
discourse about welfare, especially assumptions about human nature, gender roles, the causes of poverty, the nature of citizenship, the
sources of entitlement, and what counts as work and as a contribution to society.
Significantly, critical race and feminist scholars place the identities and consciousness of poor persons in a concrete historical and
relational context. They have demonstrated that a relational view of inequality was essential – inequality continues because of the
support for the instructions that maintain patriarchy and white privilege.
Further, critical scholars emphasize the importance of variations in context and perspective in determining the role that rights play in
the lives of weak and powerless persons. While rights often constituted domination of the oppressed, historical examples showed that
they could also be turned to the advantage of the subordinate persons under circumstances that permitted their movements to gain
power. The role of rights, they argued, also depended on voice and perspective. Minow’s analysis of contemporary and historical
examples showed that the law may promote inclusion and full citizenship when the experiences of those who have experienced
poverty and oppression influence legislative, administrative, or judicial processes. Conversely, she traces the counterintuitive
stigmatizing effects of many civil rights laws to their origin in the consciousness of legislators, judges, and professionals who lack a
complete understanding of the ways that society creates the disadvantages encountered by the oppressed.
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A2: States – Can’t Solve
States can’t solve – federal law prohibits state LSCs from engaging in class action lawsuits despite
separate sources of funding
Vance Sanders and Andy Harrington, J.D.’s, April 2003 (“ALSC President’s Report: How ALSC Operates.” The Alaska Bar
Rag. 27 AK Bar Rag 4. Lexis //ZE)
Almost as soon as the case was filed, she began to hear from other unhappy customers of the same businesses. Eventually, sixteen
individuals became plaintiffs in the case. Now, you might ask, once there are that many clients, wouldn't it be more efficient to make
it a class action? Clearly, the answer is yes; but that brings me to the first point I want to make. Since Congress has prohibited
recipients of funding from the Legal Services Corporation (LSC) from filing any class actions, Beardsley could not do so. Not only
does LSC tell ALSC what it is permitted and prohibited with LSC money, it also extends these prohibitions to ALSC's other funding
sources. That is, Beardsley would not have been able to file the case as a class action even if ALSC used entirely non-LSC money to
pay for it.
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A2: States – Can’t Solve – Restriction spillover
States can’t solve – programs can’t use non-LSC funding
Powell, Associate Counsel of Poverty Program, 2001
(Roslyn Powell, Brennan Center For Justice at NYU School of Law, June 20, 2001, “LSC RESTRICTION FACT SHEET #5: The
Restriction Barring LSC-Funded Programs from Participating in Restricted Activities Even If These Activities Are Wholly Funded by
Non-LSC Sources”,
http://www.brennancenter.org/content/resource/lsc_restriction_fact_sheet_5_the_restriction_barring_lsc_funded_programs_fr/)
“[A recipient shall not be prevented] from . . . using funds received from a source other than the Legal
Services Corporation to provide legal assistance to a covered individual . . . except that such funds may
not be expended by recipients for any purpose prohibited by this Act or by the Legal Services
Corporation Act.”
States can’t fund non LSC funding
Powell, Associate Counsel of Poverty Program, 2001
(Roslyn Powell, Brennan Center For Justice at NYU School of Law, June 20, 2001, “LSC RESTRICTION FACT SHEET #5: The
Restriction Barring LSC-Funded Programs from Participating in Restricted Activities Even If These Activities Are Wholly Funded by
Non-LSC Sources”,
http://www.brennancenter.org/content/resource/lsc_restriction_fact_sheet_5_the_restriction_barring_lsc_funded_programs_fr/)
In 1996, under appropriations legislation for LSC, Congress significantly expanded the restrictions to prohibit a
broader array of activities and the representation of certain categories of clients. Congress prohibited LSC-funded
lawyers from pursuing cases involving: legislative redistricting, challenges to welfare laws or regulations, and civil
lawsuits on behalf of prisoners and many categories of immigrants. Congress also prohibited LSC-funded
lawyers from participating in class actions, claiming court-ordered awards of attorneys’ fees, and
engaging in lobbying. In addition, Congress extended the various restrictions to govern activities paid
for by other non-LSC public funds (other than tribal funds). In other words, Congress extended the
restrictions to reach all of an LSC-funded program’s funds, both LSC and non-LSC, regardless of their
source
or
whether
they
were
characterized
as
private
or
public.
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A2: States – Can’t Solve – Poison Pill
States can’t solve LSC – poison pill restriction
Diller and Savner, staff writers for the Brennan Center For Justice, 2009
(Rebekah Diller and Emily Savner, Brennan Center For Justice at New York University School of Law, 6/22/09,
http://www.brennancenter.org/content/resource/a_call_to_end_federal_restrictions_on_legal_aid_for_the_poor/)
In a virtually unprecedented overreach, Congress applied this set of restrictions not just to the funds it
appropriates, but to all of the money that an LSC grantee possesses. This poison pill restriction on
state, local and private funds annually ties up over $490 million in non-LSC funding, or 58% of the
funds at LSC-recipient organizations. The restriction denies state, local, and private funders control
over how their money is spent, deters non-federal spending on legal services, and wastes scarce
resources when states are forced to set up duplicative, separate entities to "unrestrict" at least a portion
of their funds.
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A2: States – Perm
States: perm shields link to politics
Wendy Bach, Faculty, CUNY School of Law, Winter 2009 (“Article: Welfare Reform, Privatization, and Power: Reconfiguring
Administrative Law Structures from the Ground Up.” Brooklyn Law Review. 74 Brooklyn L. Rev. 275 Lexis)
Principle among the changes embodied in federal welfare reform was the concept of "devolution"-a devolving of authority for
programmatic design from the federal government to the states. This principle is embodied in 42 U.S.C. § 601, which describes the
purpose of the program as "increasing the flexibility of States in operating a program designed to" meet the purposes of the statute and
which eliminates any individual entitlement to receive benefits under the program. Id. § 601 (Supp. III 1997). Click here to return to
the footnote reference.n14 Although there is no question that the PRA called for devolution of power on a much larger scale than
earlier welfare programs, Joel Handler argued persuasively that throughout the twentieth century the United States has consistently
delegated administration of social welfare programs to lower levels of government when the subjects of the program are socially
categorized as "undeserving." HANDLER, supra note 5, at 49. When there is agreement on the deservingness of the category, the
program is federally administered and fairly routine. On the other hand, when welfare is controversial, and when controversies boil up
and demand upper-level attention . . . the preferred response, from the perspective of the legislature, is to try to escape political costs
by granting symbolic victories and delegating the controversy back down to the local level.
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A2: States – Courts would Pre-empt
Courts would pre-empt the CP
Judith Resnik, Arthur Liman Professor of Law, Yale Law School, June 200 8 (ARTICLE: LESSONS IN FEDERALISM FROM
THE 1960s CLASS ACTION RULE AND THE 2005 CLASS ACTION FAIRNESS ACT: "THE POLITICAL SAFEGUARDS" OF
AGGREGATE TRANSLOCAL ACTIONS.” University of Pennsylvania Law Review. 156 U. Pa. L. Rev. 1929. Lexis //ZE)
CAFA's intent to cut back on class actions - and thereby to limit the way in which aggregate litigation can be used to respond to the
economic barriers to litigation that I raised at the outset - should also be put in the context of the lack of congressional interest in
finding other ways to subsidize litigation. As in the 1960s, when Rule 23 was in sync with the creation of the Legal Services
Corporation, CAFA coheres with the 1996 restrictions on LSC lawyers and congressional prohibitions on LSC-funded lawyers
bringing class actions. 89 Just as Rule 23 once worked with the Civil Rights Attorney's Fees Awards Act of 1976, CAFA mirrors the
narrowing of the reach of that Act. Congress has also cut back by statute on fee awards for attorneys representing prisoners. 90
Further, when interpreting fee-shifting statutes in civil [*1952] rights cases, the Supreme Court has narrowly defined when a party
"prevails" 91 and has reduced fee awards by prohibiting judges from adding "multipliers" to reflect the risk entailed in bringing cases
in which fees are contingent on success. 92 More generally, CAFA reflects and contributes to the view that lawsuits often generate
more costs than benefits. Hence, it is also in line with developments in the federal law of arbitration, where the Court has elaborated a
muscular interpretation of the 1925 Federal Arbitration Act (FAA). In some respects, federal arbitration law - divesting state courts
of jurisdiction in a variety of ways and federalizing the law of contract to some extent - can be understood as a forerunner of CAFA.
One example is the lawsuit by St. Clair Adams against Circuit City, in which the plaintiff claimed a violation of California's
prohibitions on discrimination based on sexual orientation. 93 The Court interpreted the 1925 FAA to apply to employee contracts
other than those excluded by the text of the statute and held that mandatory agreements to arbitrate are enforceable. 94 State courts
lost jurisdiction. Arbitration law "fits" CAFA in another respect, in that many mandatory provisions for arbitration also preclude class
action or aggregation in arbitration. In 2006, in Buckeye Check Cashing, Inc. v. Cardegna, 95 the Supreme Court further divested state
courts of authority. The Court overturned the Florida Supreme Court and held that arbitrators, not state judges, were to decide in the
first instance interpretative questions about arbitration provisions and severability. 96 Furthermore, just as federal judges are
overseeing the decision of state court judges on arbitration, the development of law using due process to [*1953] control awards of
punitive damages also gives federal judges the opportunity to oversee state judges in their relationship to juries. 97 The
displacement of state law exemplified by the interpretation of the FAA occurs through preemption, which is the next doctrinal
category to add (as Samuel Issacharoff and Catherine Sharkey have noted 98) to the stack of CAFA-like lawmaking. Preemption is a
particularly powerful tool of federalization, for it directly overrides state substantive rules of law; complete preemption generates both
federal substantive law and federal court jurisdiction. This growth in preemption law has now caught the attention of the academy, as
can be seen in the spurt of law review articles and in a recent compendium on the topic edited by Richard Epstein and Michael Greve.
99 As this body of materials shows, the presumption against preemption is waning along with the presumption of the concurrency of
state and federal regulation. 100 The Supreme Court has relied on federal preemption in a variety of contexts, including to override
both local and state legislation on transnational human rights. Two of the major recent decisions are Crosby v. National Foreign Trade
Council, challenging Massachusetts's efforts to ban state taxpayers' funds going to goods made with forced labor, 101 and American
Insurance Ass'n v. Garamendi, contesting California's efforts to insist that insurers within the state disclose Holocaust-related
activities. 102 In both instances, the Supreme Court rendered expansive understandings of its own doctrine of foreign affairs
preemption to preclude state-based decisions. Similarly, in a case on the use of medical marijuana, Gonzales v. Raich, the Court
concluded that state judgments on the health and welfare of their residents had to cede to federal executive enforcement
prerogatives. 103
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A2: States – Commerce Clause
States don’t have jurisdiction – class actions across multiple states violate the interstate commerce clause
Helen Hershkoff (Professor of Law New York University School of Law) May, 2007: POVERTY LAW AND CIVIL
PROCEDURE: RETHINKING THE FIRST-YEAR COURSE. Lexis
Diversity jurisdiction also can be better understood from the perspective of wealth and poverty. Conventional wisdom associates
diversity jurisdiction with the need to protect out-of-state residents [*1345] against in-state bias; the literature also emphasizes the
historic aim of protecting creditors against populist state judges and pro-debtor rules. n100 Congress' decision to shift multi-state class
actions into the federal courts, despite the absence of complete diversity between the plaintiffs and the defendants, recasts this set of
issues in an important and contemporary context that potentially pits large corporations against tort plaintiffs who may be relatively
under-resourced. n101 As during the Lochner period, some commentators criticize extending a federal forum because it arguably
advantages big business at the expense of financially weak plaintiffs. n102 On the other hand, interstate class actions may be said to
deserve a federal forum "because they implicate interstate commerce, invite discrimination by states against outsiders, and tend to
cultivate bias against large business enterprises." n103 As with § 1331, the evolving nature of diversity jurisdiction reflects social values
that implicate the accessibility of federal courts for claimants with limited financial resources. The Casebook invites students to
consider what types of cases should be heard in the federal courts. n104 The answer to that question surely involves some consideration
of whether federal courts have a significant role to play in resolving legal questions that touch on poverty and inequality. n105
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Politics: Plan = Partisan
Plan sparks political battles
Robert Hornstein, Public Interest Lawyer, et al. 2003 (“The Politics of Equal Justice.” American University of Gender, Social
Policy & the Law. 11 Am. U.J. Gender Soc. Pol'y & L. 1089. Lexis //ZE)
When it comes to providing equal access to the nation's courtrooms for rich and poor alike, fiction, ironically, is truer than life. The
words spoken by Harper Lee's country lawyer, Atticus Finch, describe an idealized notion of equal justice that to this day remains
stubbornly beyond the embrace of America's social contract. However, it seems beyond debate that one of the chief functions of
government is to secure justice. 2 The corollary of that duty in a constitutional [*1090] democracy such as ours is a commitment to
ensure that the least powerful among us - those who are poor - receive just as much justice as the rich and powerful. While most
Americans would probably identify access to legal counsel as an important, if not the most important, attribute of equal justice, federal
funding to insure legal representation for the poor in civil legal disputes continues to be the political equivalent of the Mason-Dixon
line - dividing liberal from conservative instead of North from South, and establishing a well-defined political fault line. 3 In fact,
there are few subjects that engender more vituperative discourse among conservative politicians than the Legal Services Corporation.
4 For over two decades this federally funded agency has provided America's poor a small measure of access to the nation's civil justice
system - but far less than what is necessary to guarantee equal access. 5
Plan is politically divisive
CAP, Center for American Progress, 7/13/2009 (http://www.americanprogress.org/issues/2009/07/justice_gap_event.html)
Congress founded the LSC in 1974. Conservatives pushed back against the LSC, and then-Governor Ronald Reagan was a leader.
“When Governor Reagan became President Reagan, there was, unfortunately, a sea change,” Edelman explained. Reagan reduced
federal investment from nearly $800 million annually, in inflation-adjusted terms, and to this day it has only recovered to $390
million. President Barack Obama requested another $45 million for 2010, but its funding is controversial and fluctuates as political
leadership changes. According to Saunders, “There may be no other issue in Washington as volatile as LSC.”
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Politics: Plan = Bipartisan
Bipartisan support for legal aid now
The Washington Post 7/13/09; “A Fair Shake for Legal Aid; Congress begins to see the value of helping the underprivileged get
attorneys”
Editorial,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7023318780&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7023318783&cisb=22_T7023318782&treeMax=true&treeWidth=0&csi=80
75&docNo=3
FOR THE past 13 years, the Legal Services Corp. has had its hands tied while trying to fulfill its
mission of representing poor people in civil matters. Legal aid lawyers, for example, have been prohibited from
using federal and even privately procured or state and local funds to initiate class actions; they have also been barred from
seeking attorney's fees even when they prevail in court -- a benefit available to other lawyers in many civil rights or
consumer protection matters. What's worse, legal aid clinics have been grossly underfunded, a result of cutbacks after the
1994 Republican congressional victories. This year, even lawmakers who once looked askance at legal aid
programs as either a waste of money or a waste of time are rethinking their positions, in large part
because more and more constituents need legal guidance to secure such things as unemployment
benefits or to maneuver through foreclosure proceedings. It is unfortunate that it took a deep economic
recession to highlight the importance of legal aid, but it is gratifying to see -- finally -- an appropriate
legislative response. Senate appropriators agreed two weeks ago to lift almost all restrictions on how
legal aid offices may use non-federal funds; they also have given legal aid lawyers the right to seek
reimbursement of attorney's fees in litigation underwritten with non-federal money. Sen. Barbara A.
Mikulski (D-Md.), chairwoman of the subcommittee that oversees legal aid funding, deserves credit
for these latest developments, which won bipartisan approval from committee members. The full
Senate is expected to vote on the bill before the August recess; the Senate must reconcile its bill with
one passed by the House this year. The Senate effort is preferable to the House version because it goes further in
freeing up legal aid lawyers, but it is not perfect. Legal aid lawyers may not seek fees in cases funded with federal dollars -a nonsensical restriction that prevents legal aid clinics from generating more of their own revenue. The bill also would
prohibit legal aid lawyers from using even non-federal funds to represent clients in abortion- or prison-related matters.
Senate lawmakers have thus far also not been as generous as their House counterparts in setting the LSC's budget for fiscal
2010. Senators anted up $400 million -- $40 million less than the House and $35 million less than requested by President
Obama. The Senate should move closer to the House number, given the tremendous need for these services and the fact that
even the $440 million would essentially only restore LSC's funding to what it was a decade ago.
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Politics: Plan = Popular with Legal Lobby
Legal lobby loves the plan
Bernice Leber, 111th President of the New York State Bar Association, 200 9 (“The Time For Civil Gideon is Now.” Touro Law
Review. 25 Touro L. Rev. 23 Lexis //ZE)
At a recent presidential summit of all fifty state bar presidents and state delegates to the ABA that I chaired in New York City during
the American Bar Association's annual meeting, access to justice topped the list of critical issues that we most want our United States
presidential candidates to address meaningfully in the coming days. Jeffrey Bleich, president-elect of the State Bar of California,
informed the group that in California there is just one legal services lawyer for every 8,000 people who need such services. 13 H.
Thomas Wells, president of the American Bar Association and representative for the Alabama Bar Association, noted that in 2007, $
7.5 million was spent to elect judges in Alabama, while just two million dollars was spent on access to justice. 14 Barbara Bonar,
president-elect of the Kentucky Bar Association, stated that in her state, the middle class was struggling to afford attorneys when
facing foreclosure, divorce and child custody disputes. 15 Clearly, New York is not alone in our quest for justice for the poor. As a
result of our meeting, the state bar presidents are drafting a letter that will highlight access to justice as a top priority for our nation's
newly elected president in 2009. Not surprisingly, the discussion [*28] included advocacy for a federal Civil Gideon statute. All of
the state bar presidents are prepared to sign the letter and forward it on to the campaigns of each presidential candidate. After the
inauguration, we will ask for a meeting with the new president in order to request accountability and a response to the increased need
for funding for civil legal services, for a federal Civil Gideon statute, and for a loosening of current restrictions placed on Legal
Services Corporation funds. 16 This unity of purpose, voice, and resources will enable us to accomplish much more than any one of us
could individually. This unity of purpose gives us hope that things can change. II. Funding Concerns Over the next year, as we have
in the past, the state bar will continue to join forces with the entire legal community in order to advocate for a permanent stream of
funding. We are continually communicating our position with Governor Paterson and the legislative leaders. As recently as August 15,
2008, we wrote before the legislative session to request it. New York remains one of only seven states in our nation that does not
provide permanent funding 17 - a grim statistic that is often repeated on these pages. This is no distinction. New York needs to surpass
our sister states of Massachusetts, New Jersey, and Vermont, who provide two to four times the five dollars we spend for each poor
person in our state. 18 We have advocated [*29] for funding to reach fifty million dollars by 2010. 19
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Politics: Plan = Popular
The plan is popular – Congress expected to pass Obama’s proposal
Peter Edelman – professor of law at Georgetown Law Center and chair of the District of Columbia Access to Justice Commission;
7/15/09; “…And a Law for Poor People” The Nation, Law & Justice, http://www.thenation.com/doc/20090803/edelman
Federally funded legal services lawyers for poor people have been operating with one hand tied behind
their back since Newt Gingrich and his brand of Republicans took control of Congress in the mid-1990s. Now that we
have a Democratic president and Congress, it is time to roll back the restrictions that federal money
brings--constraints that lawyers for paying clients do not encounter. In his detailed budget request for
the coming year, President Obama proposes to repeal the most onerous of the strictures--a welcome
step. Congress is currently considering the president's proposals, and should enact them into law.
Legal services lawyers help low-income people stave off eviction, resist predatory lenders, protect themselves from
domestic violence, obtain public benefits and deal with family issues. Federal funding was first provided as part of
President Lyndon Johnson's War on Poverty and is distributed by the federally chartered Legal Services Corporation. Well
over half the full-time lawyers for the poor work for organizations that receive federal money, so the limits on what they
can do have a serious impact on a field that is already greatly understaffed.
The impulse to regulate lawyers for the poor is of course not unrelated to our proclivity to regulate the poor in other ways,
especially those poor people we deem undeserving. Various interests began trying to curb legal services for poor people
from the moment federal funding was first provided. Agribusiness and other businesses that made money on the backs of
the poor, as well as some public officials, thought it was outrageous that taxpayer money could finance lawsuits to make
them obey the law as it related to poor people.
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Politics: Conservatives Hate
Conservatives empirically hate class action lawsuits
Deborah G. Roher – Attorney at Law; 7/2/07; “What are class actions and why do conservatives hate them so much?”
http://droher.massattorneys.net/classaction.htm Some years ago conservative political organizations made class
action
“reform” part of their political agenda. In 1995, as soon as Republicans won control of Congress, one of the
restrictions they placed on programs of legal services for the poor was a ban on class actions. In 2005 Congress
passed and President Bush signed a bill designed to make class actions harder to bring and slower to dispose of.
Its main provision lets defendants force most large class actions out of state courts and into federal court, even if
they only involve violations of state laws. Because the federal courts are already overburdened, and because
they now have to rule on unfamiliar bodies of law with no new resources, this will slow down the resolution of
these lawsuits. Many federal judges, including the notoriously conservative late Chief Justice of the Supreme Court, William
Rehnquist, came out against the bill for this reason. Yet many legislators who call themselves conservatives, who usually argue for
limiting the reach of the federal government, voted very differently when business interests sought to trample over state laws and state
courts. Why would people who claim they are defenders of federalism and limited government support bills like this one? It might
have had something to do with the 350 registered Washington lobbyists pushing for this bill. Most of them represented industries that
make large contributions to the election campaigns of members of Congress. They weren't hired by consumers like you and me. The
class action bill is far from the only example of this phenomenon. Over the past generation, Congress has also invoked the power of
the federal government to prohibit state legislatures from passing stronger consumer protection laws, including caps on interest rates
for mortgages and other consumer loans. This change alone has resulted in the upward redistribution of billions of dollars of wealth
from working and middle-class people to the stockholders in banks and other lenders. Standing firmly against the class action
“reform” bill was a coalition of labor unions, public-interest law firms, and civil rights organizations united under the banner of the
“Preserving Access to Justice Coalition.” This coalition lost the class action battle, but has become reenergized in the new Congress to
take on other fights such as predatory lending and mandatory arbitration in consumer contracts. Stay tuned.
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Politics: Win for Obama
Obama supports the Legal Services Corporation
Steven Ertelt – LifeNews.com Editor; 5/8/09; “New Obama Budget Pays for Legal Services Corporation to Litigate for Abortions”
LifeNews.com, http://www.lifenews.com/nat5036.html
Washington, DC (LifeNews.com) -- As President Barack Obama's new federal budget is thoroughly examined, pro-life
advocates are finding a number of goodies for the abortion industry. Next on the list is a move by the president to
allow the Legal Services Corporation to use tax dollars to pay for abortion litigation.The Obama budget includes
a move to overturn the ban on taxpayer-funding of abortions in the nation's capital and it eliminates all funding for abstinence
education. It also changes the language governing funding for the Legal Services Corporation (LSC) and
loosens it to allow LSC grantees to conduct abortion litigation. Under Obama's plan, direct funding of abortion
litigation would be prohibited, but LSC grantees could shift other taxpayer funds to a separate account for pro-abortion activities.
As National Right to Life Committee legislative director Douglas Johnson tells LifeNews.com, pro-life advocates have opposed
this fungible move for years as, similar arrangements in previous years allowed LSC grantees to file legal challenges against prolife laws using taxpayer funds. "Back in the 1980s, some Legal Services Corporation grantees were deeply
involved in pro-abortion litigation, until Congress told the LSC to stay out of either side of the abortion
fight," Johnson recalls. "Now, the Obama White House wants to remove the laws that stopped LSC proabortion activism, and replace them with bookkeeping requirements that are essentially meaningless," he
explains. Although it is a small move that won't garner much media attention, Johnson says allowing the LSC to engage in proabortion legal activities merely adds to Obama's growing pro-abortion record. "This is just one more example of the Obama
Administration's relentless, step-by-step, week-by-week advancing of the pro-abortion agenda, even as it distracts the gullible
with chatter about how they are seeking 'common ground' and 'abortion reduction,'" he concluded. "We say, watch what they are
doing, not what they are saying."
Plan is a win for Obama
The Washington Post 6/22/09; “Helping Lawyers Help the Poor; Congress should free legal aid lawyers from burdensome
restrictions”
Editorial,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7023318780&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7023318783&cisb=22_T7023318782&treeMax=true&treeWidth=0&csi=80
75&docNo=1
THE HOUSE was right last week to call for a substantial increase in funding for the Legal Services Corp.
(LSC), the nonprofit organization that provides legal assistance to poor people in civil matters . But House
members left in place unwise and unwarranted restrictions on how the LSC could use that money; senators considering the matter should lift those
restrictions. Created by Congress in 1974, the LSC's services have never been needed more. The organization provides grants to civil legal aid organizations that
in turn help represent the poor -- and in these times, the newly poor -- who are struggling to survive the economic downturn. Many clients find
themselves battling foreclosure or eviction or are forced to secure unemployment benefits or food stamps. The LSC also helps
the indigent navigate a host of other legal thickets, including medical or insurance matters. On Thursday the House
approved a budget of $440 million for the LSC -- up $50 million from 2009 funding and $5 million more
than the amount requested by the Obama administration. Lawmakers also lifted a restriction that kept legal aid
lawyers who prevail in cases from recovering attorney's fees from the losing party -- a benefit available to winning lawyers in
many civil rights or consumer protection cases. This move was important because those fees could be used to further supplement
the LSC's budget. The Senate, which is scheduled to take up the funding measure this week, should go even
further in freeing legal aid lawyers from federal restrictions. The LSC has long been prohibited from using
public funds to lodge class-action suits, represent undocumented workers or participate in any abortionrelated litigation. While some limitations on the use of tax dollars may be warranted, there is no legitimate
reason for federal restrictions on how local legal aid groups use privately raised funds or money they
receive from state or local governments. The Obama administration, which supports the lifting of these
restrictions, estimates that roughly $490 million in private and non-federal funds that find their way to local
legal aid providers are "tied up" and subject to these federal limitations.
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LSC key to Welfare Reform
Key to overall welfare reform
Robert Hornstein, Public Interest Lawyer, et al. 2003 (“The Politics of Equal Justice.” American University of Gender, Social
Policy & the Law. 11 Am. U.J. Gender Soc. Pol'y & L. 1089. Lexis //ZE)
So can anyone seriously dispute the vital importance of legal counsel? There would seem to be almost universal bi-partisan agreement
on this issue. The dispute, however, seems to arise over how the poor's legal counsel is paid. Which leads us to ask whether the use of
other people's money, either through the use of legal defense funds or campaign funds, is more principled than using federal funds to
secure equal access to the courts for America's poor? Certainly a ready distinction can be drawn between the sources of the funds, but
just beyond this distinction lies rank political hypocrisy. It's unlikely any Congress member's campaign literature implores citizens to
contribute because he might need money to have counsel if he is indicted or accused of unethical conduct. The only reason members
of Congress can successfully raise funds for a legal defense fund is because of their status as elected federal officials. Would anyone
knowingly contribute money to help private citizen Wes Cooley defend his war record? Or help Gary Condit avoid scrutiny over his
relationship with Chandra Levy? The importance of legal counsel and its relationship to equal justice is evident in nearly every facet
of American life today. While President Bush and former President Bill Clinton would seem to have little in common, politically or
otherwise, both know full well the importance of effective legal counsel and the importance of other people willing to help them pay
to secure legal counsel. For Clinton, legal representation allowed him to save his presidency, while for George W. Bush, access to
legal representation won him the presidency. Even the bankrupt and universally shamed Enron Corporation can afford to pay millions
in legal fees. 100 In the first four months after Enron's collapse, the lawyers working on the bankruptcy billed $ 61,656,965.00
(million) in attorney's fees in their quest to secure justice for Enron and its creditors. 101 This figure almost equals more than twentyfive of Congress's current appropriations for legal assistance for all of America's poor for an entire year. 102 By way of further
comparison, the net operating income of only the twenty largest firms in the District of Columbia in 2002 was over one billion dollars.
103 In 1980, the gross national [*1104] product of the legal profession in the United States was estimated at thirty billion dollars. 104
Twenty years later, the amount would surely be in the hundreds of billion dollars. But should you be a farm worker paid less than the
minimum wage, an impoverished mother living in public housing facing eviction, a Medicaid recipient facing termination of her
benefits, or an illegal immigrant in need of health care, you may or may not have access to a lawyer. First, your area's legal services
program may only be giving brief counsel and advice through a telephone hotline because of funding shortages caused by Congress's
zero growth funding. Second, your lawyer will be restricted in what type of relief she can pursue because class actions, legislative
advocacy, and cases involving claims that permit statutory fees are all strictly prohibited. Third, you might not be eligible because
while desperately poor, you may earn a few hundred dollars too much in income, or you may not be a United States citizen.
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Inherency: Restrictions Now
Restrictions on LCS now
Robert Hornstein, Public Interest Lawyer, et al. 2003 (“The Politics of Equal Justice.” American University of Gender, Social
Policy & the Law. 11 Am. U.J. Gender Soc. Pol'y & L. 1089. Lexis //ZE)
Congressional opponents, unable to outright destroy the agency, have settled on a course designed to encumber it with a wide array of
restrictions that severely limit the quality and quantity of legal representation available to the nation's poor. Federally funded legal
services lawyers are prohibited from bringing class actions, seeking [*1099] statutorily available attorney's fees, helping clients
organize groups such as tenant unions, accepting cases that may generate an attorney's fee, handling voting rights cases, or doing any
type of lobbying on behalf of the clients or communities they represent. 69 The mantra of congressional opponents has been
accountability and efficiency. Even recently, the agency's current president, former Republican Congressman John Erlenborn, in an
appearance before a House Judiciary Subcommittee, characterized the disabling restrictions imposed by the 104th Congress under
Newt Gingrich as reforms that reaffirmed "the federal government's commitment to providing free legal assistance to poor
Americans." 70 Mr. Erlenborn's testimony earlier this year focused on "effective oversight" and "compliance with applicable Federal
law and regulations." 71
Class action restrictions on LSC still stand
Illisabeth Smith Bornstein, J.D., U of Chicago, 2003 (“COMMENT: From the Viewpoint of the Poor: An Analysis of the
Constitutionality of the Restriction on Class Action Involvement by Legal Services Attorneys.” The University of Chicago Legal
Forum. 2003 U Chi Legal F 693. Lexis //ZE)
In 1996, Congress limited opportunities for the poor to pursue a class action lawsuit by forbidding legal services providers that receive
federal funds from initiating or participating in class action lawsuits. 1 The class action prohibition was one of many restrictions
imposed on the activities of federally funded legal services providers. 2 Although the Supreme Court struck down one such restriction
as unconstitutional, 3 no court has ruled yet on the constitutionality of the class action prohibition. 4
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Inherency: Restrictions Now
Restrictions on the Legal Services Corporation kill any hope of elevating socioeconomic status.
The Baltimore Sun, Maryland newspaper, 7/2
(“Justice for All”, 7/2/2009, http://www.baltimoresun.com/news/opinion/editorial/baled.legalservices02jul02,0,2717271.story?FORM=ZZNR4)
For the first time in more than a decade, Congress has a real chance to lift the crippling restrictions on
the federally financed Legal Services Corporation (LSC) that have hampered the agency's efforts to
assist poor people seeking redress through the courts. At a time when many people are struggling
against the threat of foreclosure, eviction or loss of health and unemployment benefits as a result of the
economic downturn, the LSC's services are needed more than ever. Congress should seize this opportunity to
make them available as widely as possible. The LSC was created by Congress in 1974 to help fund state and local legal aid
organizations that represent indigent clients in civil cases. But after the Republican takeover of Congress that
began in 1994, lawmakers imposed increasingly punishing restrictions on how LSC funds could be
used to press poor people's claims in court. One restriction prohibited plaintiff's lawyers who prevail in civil
rights and consumer protection cases from recovering attorney's fees from the opposing side . Legal aid
groups often use such fees to help support their operating expenses. Another restriction barred legal aid lawyers
from representing clients in class-action suits that seek relief for problems affecting large numbers of
people.
Restrictions on the LSC deny legal services to the most needy
Henderson and Zirkin, President and VP of LCCR, 6/24
(Wade Henderson and Nancy Zirkin, President and Vice President of Leadership conference on civil rights, 2009)
Restrictions on the LSC imposed by Congress are unnecessary and have hampered LSC's ability to
deliver legal services to those most vulnerable. Restrictions barring legal aid attorneys from collecting
attorneys' fees, prohibiting legal services clients from participating in class action lawsuits, and
limiting the use of even non-federal monies – roughly $490 million in private and non-federal loans are
tied to federal restrictions - have severely impacted the ability of the LSC to effectively and efficiently
deliver legal services to individuals who most need legal assistance.
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Inherency: Restrictions Now
LSC is needed now but lack of funding and restrictions are holding it back
Washington Post; 3/14/09; Editorial, “An Easy Way for Congress to Help Poor People”;
http://www.washingtonpost.com/wp-dyn/content/article/2009/03/13/AR2009031303040.html
NEVER HAS the Legal Services Corp. been more essential. With unemployment on the rise and foreclosures
surging, the group provides wide-ranging civil legal assistance to the growing ranks of those in need:
representation in eviction or foreclosure proceedings, assistance in securing food stamps or unemployment benefits, guidance on
insurance or medical services. But as demand for the group's services grows, its funding sources are dwindling. Law
firms, which have traditionally provided a good chunk of Legal Services' money, have been hard hit by the economic
downturn and have scaled back their giving. Legal Services had been the beneficiary of interest generated by escrow accounts
held by law firms; because interest rates are historically low, that revenue also has shrunk dramatically. State governments are
less able to contribute. According to the Legal Services' officials, the group routinely turns away roughly half of
all low-income people who seek its help. So it was welcome news that the federal government, which remains
the most important backer of the nonprofit corporation, is stepping up its assistance. The omnibus
appropriations bill signed this week by President Obama set aside $390 million for the group -- up $40 million,
or 11 percent, over last year's funding level. This will not cover the shortfall from other funding sources or
make up for years when the group's budget was slashed, but it's a start.
Lawmakers should
go a step further and unshackle Legal Services from congressionally imposed restrictions that have kept it from
working more efficiently and broadly. For example, unlike most others who represent plaintiffs, Legal Services lawyers who
prevail in a civil case are prohibited from seeking legal fees from an opponent. This makes no sense, especially because any recovery
of fees could supplement the group's funding. Legal Services is also barred from using public or private funds to engage in a range of
activities, including all class-action lawsuits, any representation of immigrants who are in the country illegally and all litigation
involving abortion-related matters. While some limits on the use of taxpayer dollars may be appropriate, none should limit what local
legal-aid clinics can do with money they raise privately. Sen. Tom Harkin (D-Iowa) is spearheading an effort to address many of these
issues and may unveil legislation as soon as next week. Such reforms are long overdue.
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Inherency: Lack of Lawyers Now
Legal groups are struggling to meet the needs of low-income people hit by the recession
Tom Ramstack 5/23/08; Washington Times, “Legal aid groups struggle to meet low-income need” )
Legal aid representatives described to the Senate yesterday their struggle to represent low-income Americans as
a housing crisis and slow economy leave a growing number of people with more legal problems than they can
handle. At least half of the eligible applicants to nonprofit organizations such as Legal Aid Bureau get turned
away because the nonprofits lack funding, according to Legal Services Corp., the agency that gives federal grants to legal
assistance groups. Typically, the applicants seek legal representation to avoid foreclosure, get help for a disabled family member or
find protection from an abusive relationship, according to witnesses at a Senate Judiciary Committee hearing. "Because we are unable
to assist them, they have nowhere else to go," said Helaine M. Barnett, president of the Washington-based Legal Services Corp.
Recent wildfires, hurricanes and tornadoes have added to the number of people who need lawyers to represent
them, the group says. Congress is giving Legal Services Corp. $350 million in the current fiscal year, but the
agency is asking for $471 million for fiscal 2009. The presidents of the 50 state bar associations recently wrote a letter to
congressional leaders asking for increased funding, saying the annual appropriation for Legal Services Corp. has not kept pace with
inflation since the 1990s. Subprime mortgages have led to widespread foreclosures among low-income Americans,
they said. Sen. Benjamin L. Cardin, Maryland Democrat, suggested that state bar associations take a more active role in offering free
legal service to low-income people, possibly with a requirement that licensed attorneys provide the service. Legal Services Corp. is
asking for more money while it still is trying to clear its reputation after recent government reports accused its board of directors of
failing to maintain professional accountability standards. A government report in March indicated Legal Services Corp. might not be
using its funding effectively. Some agencies that received grants used the money to give staff members interest-free loans, to pay late
fees on overdue bills and to pay lobbyist registration charges, according to a Legal Services Corp. inspector general's report. It accused
Legal Services Corp. of failing to monitor grantee agencies appropriately. A Government Accountability Office report in December
said the agency's "governance and accountability breakdowns can result in a lack of trust from donors, grantors and appropriators,
which could ultimately put funding ... at risk" Legal Services Corp. officials said they have reformed their oversight procedures by
approving a new code of ethics for agencies receiving grants and establishing a separate audit committee. Concerns about whether
more federally subsidized lawsuits by low-income people are the best method of representing their interests were raised during the
Senate hearing by Kenneth F. Boehm, chairman of the National Legal and Policy Center, a conservative public policy foundation.
Mediation without lawyers and charitable assistance from private law firms could be better options, he said. "The alternatives
generally are faster, they're more effective," Mr. Boehm said.
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Class Action Key: General
Federal class action lawsuits key
Randal Jeffrey, Asst. Director New York Legal Assistance Group, Fall 200 3 (“Article: Facilitating Welfare Rights Class Action
Litigation: Putting Damages and Attorney’s Fees to Work.” Brooklyn Law Review. 69 Brooklyn L. Rev. 281 Lexis //ZE)
In terms of scope, this Article concerns only federal class action litigation to remedy systemic violations by welfare administrators. 11
This focus has three relevant components. First, this Article considers class action, rather than individual, litigation. There are several
reasons for focusing on class actions. Individual cases generally cannot support damages in a way that class actions can. 12 Further,
individual problems with welfare benefits can be remedied through the fair hearing processes required by due process, arguably
precluding federal court relief. 13 Also, given the systemic violations discussed below, 14 class actions potentially benefit many more
people than does individual representation. Second, this Article focuses on "practice" rather than "policy" cases. In policy cases, the
plaintiffs generally challenge explicit welfare administration policies as violating applicable law. In practice cases, the parties
generally do not dispute what the policies are, but instead the plaintiffs claim that welfare administrators have failed to comply with
these policies. 15 Practice cases are much more resource intensive than [*285] policy cases, since they require evidence of how
welfare administrators actually treat hundreds, or even thousands, of plaintiffs. Finally, this Article considers only cases filed in
federal court. Federal courts are often the preferred venue for pursuing welfare rights class action litigation because they are less
partisan and subject to majoritarian pressures. 16 Further, federal courts have more experience adjudicating federal rights. 17 While
the Supreme Court's recent curtailment of federal rights threatens the availability of federal courts, the core of welfare rights remains
intact and the federal courts remain the primary forum. 18
Lawmakers only concede to class action lawsuits – empirically proven
The Virginia-Pilot, part of the Virginia Fair Trial Project, 2007
(“Overdue relief on attorney fees...?”, 3/1/2007, http://www.vafairtrialproject.org/News/virginia-pilot-070301.php)
After years of closed eyes and closed ears, state lawmakers finally heeded their consciences -- and the
threat of a class-action lawsuit -- to upgrade legal services for the poor. Despite the advance, no one would
willingly choose to entrust his fate in court to a system like this. The General Assembly lifted lowest-in-the-nation
lawyer compensation caps by at least $8.2 million to $58 million.
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Class Action Key: General
Class action lawsuits increase public accountability and deterrence of future wrongdoing
Henry Rose 07; Henry Rose is an Associate Professor of Law at Loyola University Chicago School of Law; Franklin Pierce Law
Center, Pierce Law Review; “Class actions and the Poor” Lexis,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7006030731&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7006030734&cisb=22_T7006030733&treeMax=true&treeWidth=0&csi=29
1221&docNo=4
A class action case necessarily focuses the court, the litigants, and their attorneys on the institutional treatment
of the class rather than on the particular plight of each member of the class. This institutional focus of the
litigation can offer increased public accountability for a proven wrongdoer's conduct and greater deterrence of
future wrongdoing by the litigants and others. If Ms. Pennington's claim had been pursued in court individually, rather than
as a class action, it would have represented the litigation of an important legal problem for a former worker in Illinois. As a class
action, Ms. Pennington's claim represents the litigation of an important public legal issue, the resolution of which could affect
thousands of other needy Illinois residents. As an individual claim, Ms. Pennington's case would have faced several
outcomes. First, the state defendants might have offered Ms. Pennington favorable settlement terms in order to
moot out the claim and insulate the Illinois base period from an adverse judicial decision. n77 On the other
hand, once Ms. Pennington's case was certified as a class action, the case could not be settled unless the court
approved a settlement that was fair to all class members. n78 Second, if Ms. Pennington's claim had been litigated as an
individual case, there would have been no need to develop evidence about the 14,000 to 40,000 other Illinois residents who are
annually denied millions of dollars in UI benefits because of the exclusion of their lag quarter wages from the base period. n79 As a
class action, the numerousness of the class is a central issue in the class certification process, n80 and discovery
would be allowed to determine the number of persons affected by Illinois's base period definition and the
amount of their loss. Class action status allows the trial judge to learn the full scope of the legal problem for all
affected persons and to provide appropriate remedies if the class action proves meritorious. Third, if Ms.
Pennington's individual case reached a final decision on the merits by a trial judge finding that Illinois's base period violated federal
law, that decision would apply to Ms. Pennington's UI claim only; state officials would not be judicially required to follow the
decision in [*71] considering future UI applications of other claimants. The state defendants would also have no obligation to
reconsider past UI denials for other persons in Illinois whose lag quarter wages had not been considered part of their base period. n81
On the other hand, the interests of the class were integral to the judicial resolution of Pennington. The district court judge
weighed the benefits, to the thousands of members of the plaintiff class, of including lag quarter wages in the
base period against the costs to the state to implement such an inclusion -- and determined that the benefits to
the plaintiff class clearly outweighed the costs to the state. n82 This cost-benefit analysis led to the judge's holding that the
federal law's commitment to the prompt processing of UI claims was violated by Illinois's base period definition that excluded lag
quarter wages. n83 Finally, the district court judge authorized the issuance of a permanent injunction against the
application of the Illinois base period to the plaintiff class. n84 The class action certification in Pennington
allowed Ms. Pennington, her attorneys, and the district court to consider a judicial remedy that could benefit all
of the persons in Illinois who had been or would be adversely affected by Illinois's UI base period definition. If
Ms. Pennington had pursued the same case as an individual, a favorable judicial ruling would have benefited
only her. Finally, if a trial judge found in Ms. Pennington's individual suit that Illinois's base period violated federal law, such a
decision would have limited preclusive effect on future, similar cases. It would not preclude the state from opposing any similar claim
made in a later case by another denied UI claimant because the claim preclusion doctrine only bars claims between the same parties
involved in the initial case. n85 It is possible that the state would be precluded, in a later, similar case brought by a different UI
claimant, from relitigating the same legal issues adjudicated in Ms. Pennington's individual case. n86 However, this application of issue
preclusion would still necessitate piecemeal litigation involving identical legal issues to be brought sequentially rather than in the
more efficient class action format. Moreover, a judgment in a class action has preclusive effect on the members of the
class for all claims litigated in the case. n87 Thus, a class action has the potential to definitively answer, in one
case, legal questions that affect large numbers of people. [*72] The poor are often affected uniformly by government
policy or by the conduct of private actors. Class actions allow the poor to challenge the legality of these activities in a
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way that addresses the full dimensions of the problems they create. Judges, in meritorious class actions, can
fashion judicial relief that fits the scope of these problems for all affected persons. Class actions contribute to
public accountability for illegal conduct and offer comprehensive methods of providing judicial remedies to all
of the victims of the wrongful conduct.
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Class Action Key: General
Impoverished people need class action lawsuits to increase socioeconomic status
Kessler, Professor at Bates College, 2005
(Department of Political Science, April 2005, http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/harris405.htm)
While the poverty lawyers who initiated the class actions in this study may have been able to use,
under certain circumstances, their professional status as symbolic capital, class actions as a [*328]
litigation strategy were essentially banned from this program and federal funding was restricted when
those with more power felt threatened. Without working to build community organizations and selfdetermination, poor people are left with little, less, or nothing—smaller numbers of lawyers, no
organizational structures, no skills developed to advocate for themselves—when the state cuts funding
and removes litigating authority. And the relatively subordinate political position of people living in poverty makes
certain that the state will indeed take away resources and legal options when it appears that lawyers for the poor may be
assisting them in achieving status as “repeat players.” Thus, considering the place of federally funded legal services in the
political economy of the society in which it is created complicates an assessment of the “power” that its lawyers actually
possess. Such an assessment is crucial, however, and is furthered by the stimulating analyses contained in this book.
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Class Action Key: General
Class action lawsuits provide essential rights to the poor and deter future exploitations
Katie Meinick 08; Katie is a J.D. Candidate at St. John’s University; “In Defense of the Class action lawsuit: and examination of the
implicit advantages and a response to common criticisms” St. John’s Journal of Legal Commentary,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7006030731&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7006030734&cisb=22_T7006030733&treeMax=true&treeWidth=0&csi=14
3887&docNo=11
Historically it has been the plaintiffs who have supported and utilized the class action. n185 The device is popular among injured
[*788] plaintiffs because it allows them to pool their claims and bring an action even when a single plaintiff alone has not sustained a
substantial enough injury to warrant the underlying action. n186 Similarly the class action device gives plaintiffs a sort of
strength in numbers mentality. n187 Alone, facing the big businesses of the world can be daunting; and yet, as
one in a group of injured plaintiffs, this daunting task becomes more feasible. n188 In discussing the advantages of
the class action for plaintiffs, the easiest place to start is the notion within the American justice system of
ensuring equal access to justice. n189 The American legal system is heavily based on the philosophy that every
injured party deserves his day in court. n190 It is with this objective in mind that the class action becomes
integral. n191 Often in the class [*789] action scenario, a business or corporation has injured a large number of people in such a way
that the "overall liability is large but the individual interests of the class members or corporate shareholders are small." n192 In such
cases, it is only when the injury is taken in the aggregate that it becomes worth litigating. n193 The class action provides the
mechanism by which the injured plaintiffs can pool their claims, and in doing so create an action that is worth
pursuing. n194 Additionally, the class action can be used as a means through which to enforce the rights of the
poor. n195 "When the plaintiff is poor, marginalized, legally incompetent, ignorant of legal rights, or unable to
assert rights for fear of sanctions or otherwise, and these disabilities are shared by others similarly situated, the
class action may be the only effective means to obtain judicial relief." n196 This ability to represent the poor becomes
apparent in the willingness of class action lawyers to represent classes on a contingency fee basis. n197 Such a fee arrangement allows
even indigent parties to obtain a lawyer to vindicate their rights because [*790] they do not have to pay the attorney until they
themselves recover. n198 While access to the courts is undeniably important, some argue that class action litigation is
a waste of judicial time especially when the parties have not sustained serious enough injuries to bring
individual actions. n199 These arguments fail to recognize the benefits such litigation provides to the
community as a whole and not simply the benefits it provides to individual plaintiffs. n200 In many ways the class
action can eliminate power imbalances that would otherwise exist in the face of such claims. n201 Through the
class action, plaintiffs are able to pool their claims and thereby increase the defendant's potential liability. n202
Additionally, the pooling of claims ensures that even small claims get litigated - claims that would go unlitigated were it not for the class action. n203 In fact, one of the reasons many big businesses and corporations oppose the class
action so vehemently is because they are aware that it would not be cost effective for many of the class action claimants to pursue their
claims without the benefit of the [*791] other members of the class. n204 Therefore, without the class action device, many businesses
would arguably be able to escape answering for their wrong-doings until they injured someone so substantially that it became cost
effective for the injured victim to pursue the claim individually. n205 The use of the class action as a means to regulate businesses and
to force them to answer for their wrong-doings, no matter how small, has given birth to the private attorney general. n206 The private
attorney general is someone who sues "to vindicate the public interest." n207 Lawyers who have deputized themselves as private
attorney generals serve a very important purpose within the legal system. n208 Such lawyers represent classes not only to ensure that
the victims are duly compensated, but also to deter certain behavior within society at large. n209 By soliciting and representing [*792]
injured claimants against larger businesses, these attorneys are increasing the resources allocated to the "detection and prosecution of
prohibited behaviors." n210 This increase in resources simultaneously increases the likelihood that a business will be closely regulated
and subsequently held accountable for any illicit behavior. n211 The benefits of the class action device to individual
plaintiffs are multi-faceted. First, the device allows plaintiffs to make their way into the court-room even when
they have been injured only minimally. n212 This access to the courts not only allows more claims to be litigated,
but also CAUSES BUSINESSES TO BE MORE AWARE OF THEIR BEHAVIOR. n213 As more claims are filtered
into the courtroom, it becomes more likely that a business will be forced to answer for any injures it has caused. n214 As plaintiffs'
attorneys deputize themselves as private attorney generals, they serve the important purpose of supplementing the governmental
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regulation of business, again deterring illicit behavior on the part of big [*793] business. n215 This
circle of regulation works to
compensate and deter, proving advantageous not only to the plaintiffs themselves, but also to society as a
whole, which benefits from the increased regulation of the businesses world. n216
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Class Action Key for the Poor
Current restrictions on class actions severely limit the ability of the poor to use class action as a tool to get
welfare reforms
STEPHEN WIZNER (Professor Emeritus of Law, Professorial Lecturer in Law, and Supervising Attorney at Yale Law School)
1997: Rationing Justice. Lexis
Finally, we need a strategy to confront and minimize the impact of recent restrictions imposed by Congress on the activities of
government-funded legal services programs.
The first and most obvious strategic response is to challenge those restrictions n17 through lawsuits and legislative advocacy, on both
constitutional and ethical grounds. The new restrictions prohibit legal services lawyers from: bringing class actions; n18 participating in
legal efforts to challenge or promote reforms in federal and state welfare systems; n19 seeking to influence the content of regulations
and executive orders of government agencies; n20 participating in training programs that defend or advocate changes in existing public
policies; n21 representing families facing eviction from government-subsidized housing because a family member has been accused of
a drug offense; n22 and engaging in the other forms of forbidden legal assistance to individuals and groups - for example, the
representation of certain ineligible immigrants. n23 Sooner or later, these restrictions must be seen as an intolerable and unconscionable
interference by government in the practice of lawyers who serve the poor.
Class action restrictions on the LSC prevent the poor from speaking out against agencies and companies
that take advantage of them on a day to day basis
Joshua D. Blank (Associate at Harvard Law) and Eric A. Zacks (Associate at the University of Michigan) 2005: Dismissing the
Class: A Practical Approach to the Class Action Restriction on the Legal Services Corporation. Penn State Law Review. Lexis
Common harms inspire collective action. Defective automobile tires, toxic dietary supplements and fraudulent accounting practices
are just a few of the many harms that motivate the masses to act collectively. When such common harms strike, the affected
individuals often turn to the class action lawsuit as a means of seeking redress. The class action lawsuit empowers the affected class,
while enhancing the efficiency of the litigation system. Yet, despite the benefits of the class action lawsuit to both claimants and the
courts, this legal tool has effectively been made unavailable to legal services lawyers representing the poor.
The poor have been unable to utilize the class action lawsuit as a legal mechanism for instituting change because Congress has
restricted the vast majority of legal services organizations from engaging in class [*3] action lawsuits. Legal services organizations non-profit providers of free legal services - are a key source of legal representation for the poor. Many of these organizations depend
on federal funds distributed by the Legal Services Corporation (the "LSC"), a private non-profit corporation established by Congress.
In 1996, in addition to reducing dramatically the amount of federal funding distributed from the LSC to legal services organizations,
Congress imposed significant restrictions (the "1996 Restrictions") on the types of activities for which LSC funds could be used. One
of these restrictions prohibits LSC-funded legal services organizations from using federal funds to initiate or participate in any class
action lawsuit. n1
As a result of the 1996 legislation, many class action lawsuits maintained by legal services offices were dropped or referred to private
firms. n2 It is probable that since 1996, legal services lawyers have been prevented from filing a significant number of potential class
action lawsuits. Class action lawsuits were seen by some as an effective and efficient tool available to legal services lawyers in
representing their clients. Class action lawsuits enabled legal services lawyers to aggregate small individual claims that addressed
common harms, rather than litigating them individually. Class action lawsuits, however, were more than a method of legal aid for
many in the poor community. They also were a conduit through which the poor's political voices could be heard by often intimidating
regulatory agencies.
The impacts of the class action restriction have resonated throughout the public interest legal world. n3 The 1996 Restrictions implicate
not only the poor community's constitutional right of access to the courts, but also private donors' First Amendment freedom of speech
rights. The 1996 Restrictions have also raised a number of ethical dilemmas for legal services lawyers. Finally, the scarce resources of
legal services offices have been stretched even further in an effort to comply with the 1996 Restrictions.
This article argues that the 1996 Restrictions on class action [*4] lawsuits by LSC-funded organizations have adversely impacted the
delivery of legal services to the poor. The article will offer a critical analysis of the value of class action lawsuits as a legal tool for the
poor and will also recommend practical strategies that LSC-funded legal services programs can use to responsibly institute class
actions.
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Class Action Key for the Poor
Class actions are key to litigation for the poor – laundry list
Joshua D. Blank (Associate at Harvard Law) and Eric A. Zacks (Associate at the University of Michigan) 2005: Dismissing the
Class: A Practical Approach to the Class Action Restriction on the Legal Services Corporation. Penn State Law Review. Lexis
In the past, the class action device has been used effectively to enforce the rights and claims of the poor. n46 In the context of the
disabled [*11] poor, the ability of LSC-funded legal services providers to litigate class actions is especially important because the
disabled are often unable to assert their legal rights individually. As one commentator asserted, "when the plaintiff is poor,
marginalized, legally incompetent, ignorant of legal rights, or unable to assert rights for fear of sanctions or otherwise, and these
disabilities are shared by others similarly situated, the class action may be the only effective means to obtain judicial relief." n47 Poor
children have also benefited from class action lawsuits filed on their collective behalf. For example, Gordon Bonnyman, Managing
Attorney at the Tennessee Justice Center, noted how a class action filed on behalf of children who were also Medicaid recipients
forced the reform of the state's administration of medical services to the poor. n48 A similar class action forced the Tennessee welfare
program to institute quality control devices that diminished the number of poor families that lost their state welfare benefits by fifty
percent. n49 Mr. Bonnyman concluded that "it was the combination of class action litigation, sophisticated legislative and
administrative advocacy, and close collaboration with community groups, that made possible these important gains for [his] clients."
n50
Class actions also enable claims that may be economically and socially insignificant as individual claims, but that are far more
significant as a whole, to be heard. For example, in the early 1980s, many patients of New York City hospitals became homeless after
they were discharged pursuant to a new state policy. n51 The class action filed on behalf of these patients was likely the only way that
any of these potential plaintiffs could have challenged the state rule. Viewed in isolation, each poor patient's claim may not have been
valuable enough, [*12] either economically or socially, to merit a full-blown lawsuit; however, as a class, all of the patients affected
by the policy were able to bring forth their legitimate claims. Similarly, class actions have aided the ability of the homeless to force
the government to provide housing. n52 Regardless of whether such lawsuits are successful, offering the poor access to the courts
through the use of class actions represents an important step in creating equal treatment under the law. Class action lawsuits enable
even the unaware to be joined in lawsuits instituted on their behalf. For example, prior to the victory of a class action against the U.S.
Secretary of Health and Human Services and the Health Care Financing Administration, Medicare recipients were often denied
reimbursement from Health Maintenance Organizations ("HMOs") without any sort of administrative hearing or appeals process. n53
The class action suit challenging this practice was originally brought on behalf of a few indigent women in Arizona who had been
denied necessary medical care without written notice or notice of an appeals process. n54 The plaintiffs joined in the class action were
all those who had been enrolled in the Medicare-associated HMOs and who either had been denied services without notice or without
knowledge of the right to appeal. n55 Thus, the class representation served the interests of all Medicare recipients, even though many
beneficiaries of the class action did not realize that they had been denied entitlements. Further, the plaintiffs, arguing that "the
Constitution requires an expedited hearing before an HMO can deny services and that HMOs carry the burden of proof for Medicare
denials," n56 succeeded in convincing a federal district court to find due process violations under the current Medicare reimbursement
system. n57 As a result, the class action forced the U.S. Department of Health and Human Services to provide quicker reimbursement
notices to all Medicare beneficiaries. n58 Class action lawsuits also eliminate power imbalances by allowing a class of
underrepresented people with similar claims to attract more effectively the attention of a powerful defendant. As a result of the [*13]
magnitude of the potential liability in class actions, defendants are forced to treat them more seriously. The possibility of a class action
lawsuit's success may force a potential defendant to devote closer attention to the issue that is the subject of the collective claim.
The class action lawsuit, thus, can be viewed as a tool that requires potential defendants to internalize the costs of socially injurious
policies. For example, in Robinson v. Caulkins Indiantown Citrus Co., n59 John H. Robinson, the lead plaintiff for the class, asserted
that his employer had disproportionately underpaid wages and benefits to hundreds of African-American employees. n60 In bringing
the lawsuit as a class action, Robinson forced the Caulkins Indiantown Citrus Company to defend itself against a single claim that
could result in damages owed to many plaintiffs. Ultimately, the class of over seven hundred employees obtained damage payments
exceeding $ 13.5 million from the company. n61 Without the availability of the class action device, it is doubtful that Mr. Robinson and
the other affected parties would have been able to force the company to address its alleged wrongdoing. In this case, the class action
allowed an otherwise unprotected class of persons to force a large company to pay for the social and economic harms that it caused.
Furthermore, class action lawsuits draw public attention to issues that are unique to the poor community. n62 Such increased public
awareness may provide the impetus for necessary political, legal, and social reforms. n63 A good illustration of the impact of a class
action lawsuit on public awareness can be found in a suit brought by the poor living in Philadelphia public housing, who claimed that
the city government had prevented the construction of a new public housing development based on racial concerns. The suit charged
that the city government had reached its housing decision based on local municipal officials' reluctance to place African-American
public housing residents in a predominantly white neighborhood. n64 The class action's public nature aided the successful construction
of the highly-integrated public housing development. Last, the mere possibility of a class action lawsuit may encourage a government
or private agency to change its behavior without engaging in [*14] litigation. n65 An example of such an expedited form of relief
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occurred when the federal government stopped granting Supplemental Security Income to 150,000 Philadelphia children a decade ago.
It was also reported that federal government officials pressured the affected children's families not to appeal the cessation of benefits.
n66
An LSC-funded attorney in Philadelphia began preparation for a national class action. Within three months of the attorney's notice
to the Social Security Commissioner of the potential suit, a change in policy was made. The federal government granted the children
and their families, who were originally discouraged from fighting the denial of benefits, another appeals opportunity. n67
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Spillover Evidence
Speech centered theory of legal access spills over
Robert Tsai, J.D. from Yale, June 2002 (“Conceptualizing Constitutional Litigation as Anti-Government Expression: A Speech
Centered Theory of Court Access.” American University Law Review. 51 Am. U.L. Rev. 835. Lexis //ZE)
First and foremost, a fresh perspective is important because existing scholarly materials and case law reflect an inadequate
understanding of the right of access. The right is not treated seriously as a basic right, although it is nominally characterized as one.
Even when its importance is acknowledged, courts and commentators are not in accord as to the scope of this right. 18 This Article
offers an alternative doctrinal basis for the right to meaningful access by linking the importance of court access to a modern
understanding of anti-establishment speech. [*841] Second, it is valuable to think about constitutional litigation as quintessential
dissent. When courts fail to appreciate the dynamic character of constitutional litigation, they may overlook the possibility that laws
restricting the assertion of one's rights may be speech-curbing in nature. 19 The simplicity of the norms-enforcing narrative lures
courts into thinking that as long as their doors remain open for business, nothing more needs to be done to assure equal and
meaningful access. 20 This attitude, in turn, infects the legal analysis when questions of court access are involved. The prevailing
First Amendment approach, for better or worse, requires a court to classify speech, regulated by a challenged enactment, according to
certain established categories, to estimate the probable scope of the law, and to analyze the law in light of the peculiar set of rules that
are protective of speech. 21 Therefore, the initial effort by a court to classify the speech at issue and "size up" the impact of a given
law on speech has profound consequences on how the court evaluates the constitutional questions presented. How a court categorizes
expression determines the protection that it is accorded; a court's failure to recognize fully the chilling effect of a rule, at this first step,
usually spills over to later stages of the court's analysis. 22 Treating the pursue of redress as dissent marks its role as the gateway to
the political-legal order by linking familiar, time-honored free speech concepts with a rich understanding of the civil [*842] rights
plaintiff's role in constitutional discourse. 23 If internalized, this method may break down the courts' bureaucratic impulse to treat a
lawsuit raising constitutionally-based claims as simply another matter to be cleared from the court docket. The third value to this
approach is that it enhances our collective appreciation for the complexities of constitutional decision-making. The rhetoric of the
legal opinion, in its persistent refusal openly to acknowledge conflict or disorder, endeavors to resolve disputes cleanly, adjudicate
questions finally, and announce authoritative and firm principles. Similarly, the official narrative explains constitutional adjudication
as a hermetically sealed, top-down phenomenon: when rights are ultimately vindicated, the constitutional order is "restored" or
"affirmed" from above. 24 This norms-enforcing narrative, which emphasizes the end result in a successful public law action over the
actual process, ignores the reality that constitutional litigation is, by nature, a profoundly disruptive activity and focuses on actual
decisions to the exclusion of how and why constitutional claims are actually presented. The process by which constitutional rights are
articulated is messy; battles are lost over fundamental principles for years before they achieve recognition of a constitutional right.
Even when litigants "win" by achieving a favorable court ruling, they can "lose" in terms of the real world consequences that flow
from pursuing the case, and what seems natural and logical to one generation of jurists and scholars may be utterly inconceivable to
the next generation. 25 An [*843] anti-government theory of access not only strives to achieve a coherent substantive theory, it also
explicates and embraces the richness of the procedure by which fundamental questions actually are adjudicated. It is principally
concerned with the powerful political and cultural forces that shape the constitutional crises; and the practical effects of court
decisions on the lives of those who are most affected.
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Courts Key
Courts key
Robert Tsai, J.D. from Yale, June 2002 (“Conceptualizing Constitutional Litigation as Anti-Government Expression: A Speech
Centered Theory of Court Access.” American University Law Review. 51 Am. U.L. Rev. 835. Lexis //ZE)
Second, a process-based theory of constitutional law suggests that the First Amendment should be read to protect criticism of
government in whatever lawful form that challenge takes. 67 This principle applies with particular force to the act of attacking official
governmental policy in the federal courts on the ground that it is inconsistent with foundational ideals. The focus should not be on the
actual claims placed before the court, but on the effect or intended effect upon this deeply anti-government form of expression. 68
When rules negatively affect one's ability to articulate constitutional claims, or hamper the federal courts in their task of adjudicating
one's rights, they run the risk of short-circuiting constitutional discourse. 69 Because the political branches are generally ill-equipped
to handle the multiple ways in which their policies affect minority rights, constitutional litigation today, more than ever, is the
principal means by which rights are examined, protected, and ultimately refined. 70 [*851] Third, in related fashion, process theory
holds that the Constitution is designed not only to encourage majority rule, but also to "protect those who can't protect themselves
politically." 71 In so doing, the founding framework facilitates the ability of the politically marginalized to articulate alternative
viewpoints and play active roles in public life. 72 This principle safeguards politically vulnerable citizens, and treats dissent as a form
of disfavored communication. When we ensure the openness of the legal system, we create breathing room for the exchange of views
on fundamental questions that some might find immoral, blasphemous, or wrongheaded. But all of these views are essential to the
process by which our constitutional norms are made relevant in each generation. Where a rule has been enacted impairing one's ability
to pursue constitutional claims, "a more serious threat should be required when there is doubt that the speaker has other effective
means of reaching the same audience." 73
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Only litigation through the courts can spur social change
Ashley B. Antler – J.D. Candidate, Benjamin N. Cardozo School of Law, 2009; B.A., Brown University, 2002; Winter 2009; “The
Role of Litigation in combating obesity among poor urban minority youth: a critical analysis of Pelman v. McDonald’s Corp.”
Cardozo
Journal
of
Law
&
Gender,
Yeshiva
University;
Lexis,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7014965568&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7014965571&cisb=22_T7014965570&treeMax=true&treeWidth=0&csi=15
5852&docNo=1
Litigation can do more than serve as a vehicle to reframe the issue of obesity. Litigation advocates suggest that obesity-related
litigation can be an effective public health strategy and catalyst for social change, regardless of whether the
plaintiffs win or lose. n123 Specifically, litigation has the potential to catalyze numerous changes, including:
(1) cost sharing - large numbers of successful lawsuits would force fast food companies to bear a greater
share of the costs connected with consumption of their products; n124 (2) industry change - litigation
[*292] can cause industries to change their business practices voluntarily, for example, to provide
healthier product options n125 in order to avoid other costly consequences or negative outcomes of
litigation; n126 (3) increased regulation - litigation can help inspire additional supervision and regulation of
the fast food industry by drawing regulatory agencies' and legislatures' attention to health risks that require
government action and also by "demonizing" the fast food industry; n127 and (4) cultural change litigation can increase public awareness about the negative health effects of eating large amounts of fast
food, change consumer behavior, and shape public opinion in favor of increased corporate responsibility
for the obesity epidemic. n128 Some argue that fast food litigation has already led to several positive changes. n129
Obesity litigation has spurred voluntary changes in the food industry to provide more healthy products.
n130 In addition, even negative publicity about fast food lawsuits creates public awareness about the
connection between unhealthy food and obesity. n131 For example, the Pelman case received substantial national media
attention, most of it mocking and sarcastic. n132 Despite mockery, public awareness about obesity may ultimately
improve public health by heightening consumer awareness about food choices, and causing consumers to
make more healthy decisions. n133 The judiciary poses additional advantages for pursuing obesity policy goals. One benefit
is that the judiciary has the advantage of being politically insulated, and can therefore make policy decisions
that the politically accountable legislative and executive regulatory agencies have been unable to
accomplish. n134 Proponents of litigation point to the economic and political influence that the food industry
wields on the legislature and regulatory agencies, and view litigation as an opportunity to "achieve, or
initiate, policy development that the captured legislative and regulatory systems have failed to produce,
despite widespread public support." n135 For example, the judiciary's political insulation affords courts the
[*293] opportunity to impose large monetary damages on the food industry, unlike Congress and the
States, who may shy away from imposing large excise taxes to cover the same costs as result of industry
influence. n136 The judiciary's political insulation may be particularly valuable in cases brought by overweight urban minority
youth, such as Pelman v. McDonald's. In such cases, there are potentially valid legal claims that fast food companies have
withheld information or otherwise misled their highly sought after customers. Judicial review can be especially helpful in these
obesity lawsuits, where the elected branches may be inclined to side with the more politically powerful industry interests.
Moreover, courts can simulate other regulatory and legislative functions by imposing limitations on food corporations' marketing
activities. n137 Another benefit of obesity litigation in setting health policy stems from the fact that courts must decide the cases
before them, in sharp contrast to the other, elected branches of government who may get mired in political stalemate. Rogan
Kersh and James Morone posit that the court's unique ability to make decisive choices explains their central
role in setting public health policy today. n138 They explain that "in contrast to frequent legislative
impasses, courts eventually decide, one way or another. And the volume of health-related petitions keeps
growing." n139 Thus, the claimed benefits of obesity litigation reveal that courts can play a unique and potentially effective role
in combating the rise of obesity, even where political stalemate blocks legislative action.
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Solvency: Lifting Restrictions Key
Congress should increase LSC funding and remove restrictions on LSC funded cases
Danielle Elyce Hirsch, Director of Advocacy for the Chicago Bar Association, January 200 9 (“ARTICLE: CHICAGO BAR
FOUNDATION REPORT: WITH CRISIS COMES OPPORTUNITY: RECOMMENDATIONS FOR THE OBAMA
ADMINISTRATION ON IMPROVING ACCESS TO JUSTICE.” CBA Record. 23 CBA Record 24 Lexis //ZE)
While it is the legal community's responsibility to take the lead in ensuring that our justice system works for everyone, the federal
government must contribute its fair share if we are to fulfill our nation's promise of justice for all. State and local government also
have an important role to play, but this funding is a fundamental part of the federal government's obligation to properly fund the
judicial branch of our government. And just as is true with other critical services, like medical care and housing, the federal
government should provide a significant share of funding for legal aid and related access to justice initiatives in partnership with state
and local government, the legal community and other public and private sources. By moving on these matters swiftly and boldly, the
Obama administration can significantly improve access to justice for all Americans at a time when it has never been more important
for those in need. Legal aid organizations in Illinois and throughout the country are bracing for financial turmoil due to stresses on
their other major sources of funding. Many legal aid organizations are at risk of losing a significant amount of their operating budgets
due to low interest rates for IOLTA accounts and decreases in private foundation funding due to stock market declines. And while
funding is dwindling, the demand for legal aid services is rising due to the growing number of people struggling in this economy.
Particularly in this time of economic uncertainty, supporting legal aid is a solid investment in our democracy, helping people remain
stable and self-sufficient and by restoring confidence that our judicial system will provide meaningful access for all Americans to a
fair, understandable, affordable and impartial forum for resolution of their disputes. In addition to physical infrastructure projects to
restore our economy, there also must be a meaningful investment in our justice system--ensuring that all people can enforce their
substantive legal rights when facing, among other things, foreclosure, domestic violence, the denial of veterans benefits and other
threats to their safety and independence. With targeted reforms and a relatively modest increase in funding, much can be done to
expand access to justice. While there are other longer-term steps necessary to achieving equal access to justice, we urge the new
administration and [*25] the 111th Congress to take immediate steps to implement the following policy reforms and provide the
necessary funding to significantly improve access to legal assistance for those in need: Increase Funding for Legal Services
Corporation The Legal Services Corporation ("LSC") is the primary means through which the federal government funds legal aid.
Over the past 25 years, when adjusted for inflation, federal LSC funding has been reduced by more than 50% and is now a far smaller
share of overall funding for civil legal assistance in this country. This huge drop in funding has perpetuated the persistent gap in
access to justice in Illinois and throughout the country, with more than half of those in need being turned away because there are
insufficient resources. Legal aid is a cost-efficient investment that builds healthier and more stable families and communities and
saves taxpayer money by reducing the need for other costly government services and increasing the efficiency of our court system.
Moreover, as more low-income Americans struggle to make ends meet in today's difficult economy, ensuring adequate funding for
LSC is more important than ever. Because of a significantly increased demand for legal aid and more than two decades of federal
underinvestment, there needs to be a strong commitment to immediately and meaningfully increase LSC funding. Limit Restrictions
of LSC Grantees to Federal Funds Only As part of its "Contract with America," the 1996 Congress adopted a number of restrictions
on the kinds of cases that recipients of LSC funding can take on, including, among other things, bans on class action cases, on fee
generating cases and other sources of "impact" litigation. These restrictions have been renewed annually since that time. The LSC
restrictions impose real limitations on the ability of legal aid programs to fully protect the legal rights and interests of the most
vulnerable because they apply broadly to--and limit the use of--all funding that LSC recipients receive, including grants from state and
local governments and private funds from the legal community, charitable foundations and private donations. These restrictions have
the practical effect of encumbering hundreds of millions of other funding provided by state and local governments, charitable
contributions and other non-LSC sources; removing a critical source of leverage in litigation by preventing legal aid attorneys from
bringing attorneys' fee claims; and preventing legal aid organizations from combating wrongful practices that are systemic in nature
through class action litigation.
The solution of lifting these restrictions is easy and cost-free; in fact, it would even save money
by significantly reducing the administrative burdens on these programs. More individuals would be able to obtain legal assistance if
the 111th Congress would simply remove the LSC restrictions from the Commerce, Justice and Science appropriations bill. The new
Obama administration should recommend this change in its first budget submitted to the Congress. Additionally, the Obama
administration should appoint LSC board members who would support a more thoughtful regulatory approach to ensuring that LSC
funds are used for their intended purposes.
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A2: Spending
Plan is revenue positive
Bernice Leber, 111th President of the New York State Bar Association, 200 9 (“The Time For Civil Gideon is Now.” Touro Law
Review. 25 Touro L. Rev. 23 Lexis //ZE)
Second, the failure to fund these critical services now will have devastating consequences in the short term. Dollars spent on civil
legal services saves us triple - even quadruple - the amount we would otherwise spend down the road. For example, according to the
New York City Department of Social Services report entitled, The Homelessness Prevention Program: Outcomes and Effectiveness,
every dollar spent on indigent representation in eviction proceedings saves four dollars in costs related to homelessness. 12 This is a
particularly relevant example when you consider the ongoing mortgage foreclosure crisis. The loss of a home has brought the absence
of fully funded civil legal services to the national stage. We see this in the programs and legislation offered to buy time for those
facing foreclosure. But extending time to pay one's debt - without also providing legal counsel for those in need - is not truly affording
a remedy at all.
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Disads are Non-Unique
Congress lifting restrictions on LSC
John Carlisle, 6/12/09; Carlisle is a Staff Writer for National Legal and Policy Center; National Legal and Policy Center, “House
Subcommittee Begins Unraveling Restrictions on Legal Services Activism” http://www.nlpc.org/stories/2009/06/12/housesubcommittee-begins-unraveling-restrictions-legal-services-activism A key congressional appropriations committee
recently took the first step in removing restrictions on the ability of legal aid programs funded by the Legal
Services Corporation (LSC) to use taxpayer dollars to engage in politically-motivated litigation. On June 4, the
House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies, chaired by Rep. Alan Mollohan
(D-WV), voted to lift the restriction on the ability of LSC-funded programs to collect attorneys' fees. This restriction
was part of a series of provisions Congress enacted 13 years ago in an attempt to end the practice of legal services lawyers using
taxpayer money to file lawsuits advancing liberal political causes. In addition to the prohibition on collecting attorneys' fees, the
restrictions included bans on filing class action lawsuits, challenges to welfare reform, representation of undocumented aliens, and
abortion advocacy. The prohibition on collecting attorneys' fees, a routine practice for private sector lawyers, is
necessary to insure that LSC-funded programs, currently numbering 137 nonprofit organizations, only pursue
cases that meet the LSC mission of ostensibly providing assistance to the poor for routine legal problems such as
landlord disputes or domestic violence complaints. Allowing LSC grantees to collect fees would make them operate more like forprofit law firms. As a result, legal services lawyers, who are already salaried, would seek out those cases that generate lucrative fees at
the expense of those cases that are most relevant to the actual needs of the poor. The decision of the Commerce
Appropriations Subcommittee to lift the fee restriction, a disturbing development in itself, only marks the beginning
of the removal of other key restrictions. At an April 1 subcommittee hearing, several Democratic members stated that
the restriction on class action suits should be lifted as well. On March 26, Senator Tom Harkin (D-IA) introduced
legislation, the "Civil Access to Justice Act," that would lift the restriction on collecting attorneys' fees, to bring class action suits, and
permit lobbying with non-federal funds. The Harkin bill also called for boosting the LSC budget from its current $390 million to $750
million. And it is not just Congress that wants to gut the restrictions. On May 7, the Obama Administration called
on Congress to repeal the restrictions on receiving attorneys' fees, the prohibition against class action lawsuits,
and the use of non-LSC money to pursue prohibited LSC cases. Lifting the bans on attorneys' fees and class
action lawsuits would have a most pernicious effect. LSC grantees would be emboldened to engage in the type of
controversial political litigation that has plagued the program since its inception in 1974. For instance, grantees would be more
motivated to file massive class action suits on behalf of thousands of people they claim were unjustly denied
Medicaid benefits or welfare assistance. These are the types of lawsuits that typically generate enormous awards of attorneys'
fees. While a legitimate practice for a private-sector lawyer, it is not at all the kind of litigation that taxpayers should have to
subsidize. If Congress lifts the ban on the use of non-LSC funds to pursue prohibited cases, which the White House and Senator
Harkin advocate, it would render virtually all restrictions meaningless. The large majority of LSC grantees, which are private
nonprofit organizations, receive money from either private or other government sources. Without the restriction on non-LSC funds,
grantees could simply claim they are using non-LSC money to pursue the cases prohibited from using LSC funds. Thus, LSC grantees
would be free to file lawsuits on behalf of illegal aliens, prisoners, and drug criminals being evicted from public housing. In addition
to lifting the ban on fees, the Commerce Appropriations Subcommittee also voted to boost the LSC budget from
$390 to $440 million for Fiscal Year 2010, a nearly 13 percent increase. LSC sought $485 million. The subcommittee's
recommendation, which the House Appropriations Committee will no doubt accept, is similar to the Obama Administration's
recommendation of $435 million. Likewise, the Senate is indicating it supports that level of funding. In May, 53 Senators - 45
Democrats, six Republicans, and two independents - signed a letter asking key congressional appropriators to provide at least $435
million for LSC. The combination of increased funding and repeal of critical restrictions will lead to a sharp
increase in legal services litigation on behalf of hard left causes. So Americans, already exasperated for having to fund trilliondollar bailouts and stimulus boondoggles, will see their tax dollars used by activist lawyers to fund radical political advocacy.
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Topicality - Legal Services = Social Services
Legal services are social services
Rothstein, Law Foundation Prof. of Law, 2000
(Laura F. Rothstein, University of Houston Law Center, winter 2000, University of Arkansas at Little Rock Law Review)
Other federal statutes followed that provided a piecemeal approach to ensuring nondiscrimination in a
variety of areas, including voting, n7 air transportation, n8 and housing. n9 These efforts were enhanced
by additional policy support for benefits to ensure access to legal services and other social services for
individuals with developmental disabilities. n10 The changes in air transportation and housing were significant
because they began to address [*149] discrimination in the private sector, something that was largely untouched by the
Rehabilitation Act and IDEA. The changes are also significant because they are examples of Congressional
response to judicial attention to these issues that demonstrated the inadequacy of current statutory
protections. Amendments to the Rehabilitation Act and IDEA also occurred between the 1970s and 1990 in response to
other court cases, in which policy deficiencies were highlighted. n11
Legal services are a type of social service
Tunksy-Brashich, staff writer for Boston College Third world Law Journal, 2008
(Arianna Tunsky-Brashich, Spring 2008, Boston College Third World Law Journal, Lexis)
Since the EPSDT guidelines were first enacted in 1967, they have been amended, administered, and judicially interpreted in
a progressive manner that extends additional protections to children. n122 This notion of applying a comprehensive and
prospective approach to treating children in poverty correlates with the theory underpinning the MLPC approach and is
representative of the progressive proposals for policy reform that are described throughout Ending Poverty in
America. n123 The most direct way to promote the MLPC model would be to revise the EPSDT guidelines
to establish that social services, such as the legal services provided by the MLPC model, are within the
statute's notion of preventative care. n124 EPSDT guidelines could be expanded to define "other
necessary health care, diagnostic services, and treatment" that are needed to "correct or ameliorate
defects and physical and mental illnesses and conditions discovered by the screening services" as
including legal intervention that can help improve the overall physical [*577] and mental well-being
of the child. n125 Under this model, the diagnosis of, and action to correct, potential legal problems that either directly or
indirectly affect a child's health would be reimbursable. n126
Social services include legal services
Saltzman, former staff attorney, 1983
(Andrea J. Saltzman, former staff attorney in the Litigation Unit of San Francisco Neighborhood Legal Assistance Foundation, July
1983, Hastings Law Journal)
Finally, at this time when federal funding for legal services is being questioned and cut back along
with many other social and benefit programs for the poor, n86 wider involvement of the private bar in
legal services may mean wider attorney involvement in efforts to preserve not only legal services, but
also other social services and benefit programs. The private lawyers involved in such efforts, moreover, generally
would have more political power than staff attorneys and their clients; the assistance they could provide to staff attorneys
would thus be invaluable to the poor. n87 Additionally, by compromising with the advocates of judicare, staff attorney
advocates may be able to preserve the essential features of the staff attorney system in the face of continuing attacks on that
system. n88 By adding a private bar component, staffed legal services programs can foster better relations with the private
bar. n89 Legal services staffed programs can work effectively with the private bar; they may very well not be able to work at
all against it.
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Legal services are social services
Vivero, VP for governmental relations and public affairs at LSC, 2002
(Mauricio Vivio, vice president for governmental relations and public affairs at Legal Services Corporation, February 2002, Fordham
Urban Law Journal)
[There are] varying perspectives within legal services about what the program is and should be. Many
legal staff members view legal services as a social services program that provides necessary help but
has no real political content; it is a job to be done as best as one can within the "helping" framework.
Others view legal services as an advocate to enhance and protect the interests of the poor: to some it means using lawyers in
courts and before legislative and administrative bodies to achieve social and economic justice for poor persons; still others
view legal services as a means to empower the poor to act on their own behalf and help change their lives and the
conditions under which they live and work. n99
Legal services are a type of social service
Rhode, Stanford University Director of Law, 2004
(Deborah Rhode, Director of the Center on Ethics and Ernest W. McFarland Professor of Law, Stanford University, May 2004,
Fordham Urban Law Journal)
The first point that bears emphasis is the importance of collaborative efforts. In the 9/11 context, the success of the
profession's efforts depended on close cooperation by bar associations, leading law firms, pro bono,
public interest, and legal services organizations, community groups, and other social
service providers. n46
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Topicality - Legal Services Corporation = Social Service
LSC provides social services
Cooper and Dietz, Chicago-Kent School of Law Students, 2007
(Robert Cooper and Marc Dietz, presentation at the Chicago-Kent School of Law,
http://www.kentlaw.edu/faculty/rstaudt/classes/2007PublicInterestLaw/studentdocs2007/Cooper_Di
etz_Project.doc)
Mr. Levine understands the inherent dilemma in Congress supporting civil legal services that includes
affirmative litigation against their legislative actions. However, Levine strongly believes the government should
support legal services for the indigent population. Civil legal services are one of the many social
services people need. Although there is no constitutional right, such as in criminal law; he thinks civil legal defense
should be provided as an essential social service. This service should be provided by a collaborative effort of state, local,
and federal governments in addition to privately funded legal aid organizations and law firms. The political aspect of
LSC funding may mean that Congress continues to impose funding restrictions. Even with the
restrictions in place, Levine believes demand for services is sufficient to spend all of the LSC
Congressional funding. Congress does not have to be the source for funding affirmative litigation efforts that
challenge policy and legislation.43
Legal Services Corporation is a social service program
Ferguson, staff writer for The Weekly Standard, 1996
(Andrew Ferguson, The Weekly Standard, May 20, 1996, lexis)
The courageous, and incessant, call for tax increases is of a piece with tough-choice ideology.
Tough Choosers are
invariably "moderates," members of the "passionate center," in Tsongas's phrase. They call themselves
"fiscal conservatives." This has the potential to sound harsh, so it is pleasantly balanced with their self4dentification as
"social moderates." In particular, this means they favor -- in addition to tax increases -- the right to
abortion, federal intervention on behalf of environmentalists, gay rights, and preserving the vast array
of social services, from AFDC to the Legal Services Corporation, that constitutes the welfare state.
Legal Services Corporation is a social service program
Boubion, Mercury News Staff Writer, 1995
(Gina Boubion, San Jose Mercury News, March 7, 1995, Lexis)
A bill introduced in Congress in January would eliminate funding for the Legal Services Corp. The
bill, which also would cut dozens of other social service programs, allows taxpayers to earmark 10
percent of their tax bill for charity. "The congressman doesn't have an ideological exception to legal services at all,"
said Doug Nick, spokesman for Arizona Rep. Jim Kolbe, R-Tucson, who co-sponsored the bill titled the Common Sense
Welfare Reform Act. "He just put everything on the table because it's hypocritical to put 'X' on the table and say 'Y' is
untouchable."
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