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Students! Help Santa Clara County scout out new ways to sue American business!



State of legal academia dept.: a law student reader sends along the following email distributed at the University of California, Davis:

From: <...@ucdavis.edu>
Date: Jan 7, 2008 1:42 PM
Subject: Externship Opportunity with Santa Clara County Counsel's Office
[forwarded by a professor]

Externship Opportunities with the County Counsel of Santa Clara County

County Counsel of Santa Clara County is seeking externs to assist in the development of and implementation of affirmative litigation cases involving public interest issues. Although students may need to travel to San Jose occasionally, the bulk of the work can be done in Davis. Regular public interest externship credits will be available (1 unit for every 4 hours of work per week for the semester; minimum 2 units). Please contact [...] if you are interested.

Description

This externship is designed to provide students with the opportunity to work directly with Santa Clara County public lawyers to promote the public interest through litigation and legislation. Students will assist the County Counsel's Affirmative Litigation Task Force in promoting the goals of the County and pursuing affirmative litigation and legislation designed to protect the County's residents and environment.

Students will have an integral role in identifying issues that impact the community, investigating potential sources of litigation and legislation, evaluating and discussing with experienced lawyers potential claims and remedies, conducting legal research, and preparing legal documents ( e.g., pleadings, motions, discovery, proposed legislation, etc.). Students will learn about the organization of County government and the role of the Office of the County Counsel in advising the Board of Supervisors and County agencies and departments on a wide variety of legal issues. Students will also learn how taking action at the local government level can impact decisions made at the state and federal government levels.

The externship objective is to provide students with real-world experience in pursuing social and environmental justice by taking affirmative steps through local and state governments and the courts.

Two examples of the affirmative litigation ideas the office has considered in the past at are:

Alcohol Advertising

Underage drinking is a public health crisis in California. Although the industry denies it, more and more studies are proving a link between exposure to advertising and choices about alcohol. This research show that exposure to alcohol advertising shapes young adolescents' attitudes toward alcohol, their intentions to drink, and underage drinking behavior.

Alcohol marketing at the point of sale (e.g., interior and exterior signage, floor displays and alcohol-branded functional objects such as counter change mats with an alcohol company logo) often includes low height alcohol ads that are in the sight line of children and adolescents as opposed to adults. Moreover, alcopops (sweetened alcohol beverages), are particularly popular with young people, especially girls between 14 and 18.

In November of 2006, the County of Santa Clara filed a lawsuit against the State Board of Equalization because it improperly classifies, and therefore taxes, alcopops as malt beverages rather than distilled spirits. If the County succeeds in its lawsuit against the BOE, the tax on alcopops would rise from 20 cents per gallon (the beer tax rate) to $3.30 per gallon (the liquor tax rate). Alcopops are made with malt, like beer, but are sweetened and often branded with liquor names like Smirnoff and Bacardi. The classification of "alcopops" as beer or malt beverages results in a lower excise tax, cheaper retail prices, and easier access for minors.

The County's litigation started a firestorm in Sacramento. "I'm absolutely outraged by what the alcohol industry is doing to our kids," said state Sen. Liz Figueroa, chair of the Senator Select Committee on Children, who has authored a bill imposing penalties on alcohol companies whose ads appear to be aimed at children.

The alcohol industry, however, has managed to avoid any liability for its advertising practices. The tobacco precedent may establish precedent to use the unfair business practices statutes to go after alleged activity to induce and increase minor's illegal purchases of alcohol. There are numerous legal issues to be considered, however, including First Amendment protections and regulatory preemption. Moreover, suing a large industry with limitless resources is a serious endeavor for a public entity.

In-class discussions could include these sort of legal issues. Moreover, students interested in working on this issue might spend time with state legislators on efforts in Sacramento to address the problem, attend meetings with the policy groups to understand the extent of the problem and the supporting evidence, and work with our office on discrete legal issues necessary to review the legal viability of theories.

Green Advertising -- Fluorescent Lightbulbs

You can't miss the stream of advertising indicating that if you want to change the world, start by changing a few light bulbs. It is true that switching to fluorescents is one of the best things you can do for the environment. According to the Union of Concerned Scientists, if every U.S. household replaced just one regular incandescent light bulb with a compact fluorescent light bulb, it would prevent 90 billion pounds of greenhouse gas emissions from power plants, the equivalent of taking 7.5 million cars off the road. And the U.S. Environmental Protection Agency says that by replacing regular light bulbs with compact fluorescent light bulbs at the same minimal rate, Americans would save enough energy to light more than 2.5 million homes for a year.

BUT, at the end of their lives, the bulbs' glass itself contains Mercury, which unless disposed of properly, escapes municipal landfills into the air and water. Acute inhalation exposure to mercury vapor may be followed by chest pains, dyspnea, coughing, hemoptysis, and sometimes interstitial pneumonitis leading to death. The central nervous system is the critical organ for mercury vapor exposure. Thus, mercury poses serious environmental and health risks unless disposed properly--not in landfills. California Department of Toxic and Substance Control has banned the disposal of fluorescent light bulbs in municipal wastes, but most people are unaware or ignore this requirement.

Wal-Mart's promotion of energy-saving compact fluorescent light bulbs has set a goal of selling compact fluorescent lamps into at least 100 million homes. Manufacturers and distributors are not required to "take back" the product to allow for proper disposal of the mercury. Rather, local governments and tax payers currently shoulder the financial burden of the disposal of these products, as well as the potential for future environmental liability. The County's program costs up to $300,000/year. The County estimates that it collects less than 14% of the fluorescent bulbs. Total participation and increased production would drastically increase costs. The County has arranged drop-off sites at local hardware stores for the County to receive and properly dispose of these bulbs. But larger stores like Home Depot and Wal-Mart, who sell the most lightbulbs, refuse to cooperate and do not have take-back programs of their own.

Product stewardship councils have made calls for manufacturers to finance "cradle-to-cradle" management of the products they create in order to promote environmental sustainability. Legislative efforts, however, have failed with bills supporting take-bake requirements being gutted under influence from the industry.

Those who profit off of the sale of fluorescent light bulbs have shifted a huge environmental cost to County taxpayers while marketing these bulbs as "green." The County is evaluating the legal options available for addressing this problem. Students interested in this issue would attend legislative activities in Sacramento, meetings of stewardship councils, and research and discuss legal issues pertaining to litigation efforts.

[signed, Prof., etc.]

Our student correspondent continues: "I love how the 'plan to indoctrinate law students in the classroom' suggestion is included in the announcement sent directly to the students. I'm assuming the county counsel's office meant for our career services people to paraphrase the externship descriptions provided, and cull language such as 'In-class discussions could include these sort of legal issues.'

"It doesn't sound so sinister on its face, but getting law students used to the idea of public lawsuits seeking liability for practices which are already heavily regulated in order to finance local government is disconcerting. I guess the new face of local government law is to sue when the state government doesn't go as far as you'd like. It's like Massachusetts v. EPA one step down the line."

 

 


Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.