Challenge to Ed Brayton and his pals
Now for some more replies to Ed Brayton's nonsense.
In yet another article, Ed Brayton says, "The fact is, the only reason they [the Dover plaintiffs] asked for the nominal damages of $1 per plaintiff was to avoid having the case mooted in case of a school board change (which, of course, did happen) and force the court to rule in the case."
This notion that a claim for nominal damages is alone sufficient to prevent a case from being declared to be moot has been thoroughly debunked in this blog. If there were such a general rule, then all plaintiffs would claim nominal damages and no lawsuit could ever be mooted. Reductio ad absurdum. Q.E.D.. It appears that the 2nd, 6th, and 10th circuit federal courts of appeals have accepted this absurd idea, but there is no evidence that there is generally any such rule about nominal damages. What is the point of having just a claim for a lousy $1 if all your other claims are moot? No one has yet provided a single instance where a court has granted nominal damages and nothing else. Nominal damages are just symbolic tokens of vindication on some other claim -- when all other claims become moot, then the nominal damages claim should become moot also.
Ed Brayton said,
The legal bills in Lamb's Chapel and Good News Club were almost certainly in the millions of dollars, especially since both went all the way to the Supreme Court and thus required an addition 3 years or so of legal work. Why, then, do we never hear the right accusing the American Center for Law and Justice or the Alliance Defense Fund of using legal fees to "intimidate" school districts into compliance?
Why should the right be complaining about that? If attorney fee awards in free exercise suits are a problem, then why isn't the left complaining about it?
Also, just because these cases went to the Supreme Court does not necessarily mean that they cost millions of dollars in legal fees. You are always jumping to conclusions. Often, the biggest expenses are incurred in the trial court. Appeals are usually done just with briefs, with very short oral hearings sometimes included. In appeals actions, normally the appellant/petitioner gets to file two briefs and the appellee/respondent gets to file one, though sometimes there are extra briefs, like a petition for rehearing. The big factors that drove up costs in Kitzmiller v. Dover were: (1) a horde of plaintiffs' attorneys of record -- 9-10 -- with at least 5 of them in the courtroom every day of a six-week trial; (2) a lot of expert witness testimony -- six plaintiffs' experts and several defense experts; and (3) lots of pre-trial discovery, including depositions. In contrast, the Lamb's Chapel and Good News Club cases were much more clear-cut and probably had no expert witnesses and little or no pre-trial discovery -- these were cases involving exclusion of religious organizations from after-hours use of public-school facilities. However, it is true that other seemingly clear-cut cases also ran up big legal bills, though not as high as Dover -- it has been reported that the ACLU was awarded nearly $800,000 in attorneys’ fees from the city of San Diego, Calif., in a successful effort to prevent the Boy Scouts of America, which acknowledges God in its oath, from continuing to use Balboa Park and that the ACLU, Americans United for Separation of Church and State and the Southern Poverty Law Center gained about $540,000 from the state of Alabama in a successful challenge of the Ten Commandments monument displayed in the State Judicial Building by Alabama Chief Justice Roy Moore.
Anyway, I said that instead of just banning attorney fee awards in establishment clause cases, there should be caps on attorney fee awards for both establishment clause and free exercise clause cases.
Ed Brayton said,
..... the fact that Pepper Hamilton decided in this case to forego any reimbursement for billable hours by the attorneys is an anamoly. In most such cases, they will take at least partial repayment of those billable hours, at least enough to break even.....Ordinarily when the ACLU wins a big case like this, they only get a small portion of the legal fee reimbursement because they only have one part time attorney working on it,
How do you know that Dover is an "anomaly" in this regard? You are always jumping to conclusions. A former ACLU staff attorney said,
The ACLU, posturing to the public that it acts on principle and pro bono, in the public interest and without fee, in fact has raked in enormous profits in lawsuits brought under the "establishment clause."
These lawsuits are nationwide, coast to coast, and run literally into millions of dollars in the pockets of the ACLU in "attorney fee awards" - although in fact neither the ACLU nor its mascot plaintiffs have incurred any actual attorney fees.
As a onetime ACLU staff attorney, I know that the ACLU recruits attorneys to take on its cases without fee, and that the ACLU does not charge attorney fees to the persons it uses as plaintiffs.
Large firms often provide attorneys from their pro bono units at no cost to the ACLU....
Before, I called the attorney fee awards in establishment clause cases "draconian," but suggested only one way of reducing the awards -- reducing the number of plaintiffs' attorneys. I will suggest other ways here as well.
Here are some ways in which the Dover plaintiffs' legal representatives could have economized:
(1) -- reduce the number of attorneys of record. There were 9-10 attorneys of record, with at least 5 of them in the courtroom on every day of a six-week trial. In contrast, the defense had just four attorneys of record, and I heard that only one of them was a full-timer.
(2) -- eliminate the expert witnesses or reduce their number. Initially there were six expert witnesses for the plaintiffs and six for the defense, but two or three of the expert defense witnesses dropped out. The testimony of these experts was mostly just a "Monday morning battle of the experts" that did little or nothing to illuminate the purpose of the school board or the perceptions of the local community. In Edwards v. Aguillard, the district court judge refused to hear such expert testimony and the Supreme Court expressly agreed with that decision.
(3) -- eliminate deposition of expert witnesses. There was no reason to depose the expert witnesses, because all of them had submitted expert witness reports and supposedly had long paper trails of publications. Deposing these expert witnesses was like "deposing" federal judicial nominees prior to Senate confirmation hearings.
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