Post Questions & Comments for Professor Proto's Lecture

Dear Tina,

Thank you for your note. There is a deeply serious prelude to taking the course that is described in To A High Court, Chapter 2 “Banzhaf and The Placid Eggshell, Spring 1971” and described briefly in the talk. He offered students the opportunity to exercise their own choices and to challenge corporate wrongdoing, as prevalent then as it is today.It was reality, all around us, and I describe some of what Id witnessed and experienced long before I registered for the course. That opportunity was embraced by students, myself included.  I did not go into the course with an idea of what I might do; foremost I had to get 4 others to join in a group with me. I had only one: George Biondi. And then the newly formed group had to discuss ideas and decide within a week whether it had a project.


Chapter 4 of To A High Court describes how we formed and, after rejecting a few other ideas, decided to explore the one involving freight rates and NEPA. Another student in the class, who I knew, but couldn’t remember his name (all of this and the dialogue between me and him is in the book) told me he had taken an environment law course, and was told—though he made clear he didn't understand it—that the ICC approved freight rates that harmed or impeded the movement of recyclable materials. He joined another group because they already had a project idea. I mentioned freight rates and the ICC only to my friend George, who was taking Transportation Law, and knew some about the ICC. It meant to me that the history and economics of  “Freight rates” was something we could grasp. It wasn’t until our second meeting as a group that I raised it. I also had a good friend, and former GWU law student who was in government and did environmental litigation.I thought I could get briefs, opinions, etc from him if we needed them. My responsibility, once we decided to see if we could actually do something (a project), was to review NEPA, and then we all went down to the ICC to review dozens of gigantic volumes of the last rate increase. Looking, of course, for an Environmental Impact Statement. There was none.  We then knew we had a project. I was selected Chair, stood up in the second class of the semester and described it. 

If you haven’t watched them, there are three book trailers you might enjoy: www.ToAHighCourt.com (go to “videos and events”).  Neil

Dear Meagan, Thank you for your note, and the questions you've posed. I’ll do my best to answer them, but do feel free to ask further if I’ve not succeeded. I should make clear that there is no substitute for reading the book, and I do think —if you haven’t seen them yet—that the three trailers for the book (found on the website, www.ToAHighCourt.com (videos and events) are worth watching.

1. The law school—as an institution—had no role in our decision to file suit (actually there were two lawsuits), which we made during the second semester (there were then only three of us; the course was over; our petitions filed, and a new rate increase applied for, which we also opposed; the subject of the second lawsuit that made it to the Supreme Court). Our professor got each of us 2 credits for “legal writing” with no grade, which I needed in order to graduate and the others--both 2nd year--needed to keep moving through school.

’The dean and much of the faculty did not like Banzhaf and his approach. He was denied tenure, and it was reversed, as I describe in much more detail in the book than in my presentation at GWU. I can tell you that but for fellow students, newspapers, and the school newspaper coverage (university and law school), there was no grand embrace. At the time , none of us cared about that or the dean or the faculty. We each knew what it meant then, and historically. I describe my decision to write a draft in the book as well, and did in ‘73-74.

2. The meaning of disciple, in various forms, is described in dialogue and choices made throughout the book. In one review of the book, in 2006 by Antoinette Stone (I refer to it at the end of my GWU talk), she poses and answers a question similar to yours. I think the article may be in the website, somewhere.

I do think that today law students are underestimated, and it shows. Decades of “clinics” have left them looking to others—“adults,” I guess, as if they no longer have to be—who will channel and guide them. Banzhaf didn't want that or even encourage it. The research, in law and process and in finding complaints and studying and writing briefs, etc, was all on us. We did it, and without the internet or voice mail or zoom. That is what the course, and our decision to continue after the course ended and do all the work was all about. My friends in private practice—fewer as we all age—wonder why new associates seem to want lots of help. They are trained in law school clinics to do that; and I say in the Q and A, it makes no difference,when it comes to challenging corporate wrong doing, whether you’re at Yale or at the Scalia Law School. Neither allows it. One reason is that law firms—usually alumni-driven—sponsor (finance)clinics and provide law students positions (sometimes for no pay), as long as the subject matter or the “clients” do not involve challenges to corporate or even potential corporate clients and wrongdoing. And clinics do not give students the freedom, and the responsibility, to use their own values and judgements and skills. To me, faculty and the law schools have embraced a model that law students have gotten used to. SCRAP remains unique. At the time, other than the law suit, there were other students doing the same thing. I think it frightened faculty, deans, and alumni. And they found a way to channel it.

3. On Disney. I was in private practice. The head of the National Trust for Historic Preservation asked one of the firm’s partners of some standing in DC for his political acumen (I was a partner as well) for help in stopping Disney. We had no ethical conflicts. They turned to me. I visited the site on my own and the nearby Battlefield. I was troubled by the secrecy with which Disney had acquired the land; and they had the support of the president, the governor,  and others. There already were environmental groups concerned about the harm, mostly to the Chesapeake. But that wasn’t enough: the cultural and corporate wrongdoing and a broader political strategy —Congress and Interior, and getting in the right posture for a law suit—also was required. That summer, we had 4 or 5 summer associates.I used them and it was a serious yet fun experience, especially when the historians-like McCullouch, and Pulitzer Prize winner Nick Kotz and dozens of others—joined in. We won. The firm was thrilled.We humbled a major corporation. During it, I continued to serve my clients and others within the firm where I was asked for help. Finding those kind of pro bono opportunities is not difficult, even in private practice. Today, law firms channel associates in a different direction….just like law schools. Revisit the part of the Q and A where I describe what I was not not asked when I interviewed at US DOJ.

I hope that answers your questions. Thanks, again. Neil

Professor Proto,

Thank you so much for speaking on this topic. The feat that you and your fellow classmates achieved is an inspiration for those of us just beginning to try our hand in this field today. I got chills hearing you speak about the riots and and experiences from your first year of law school. I look forward to reading your book!

Given the increasing urgency of environmental issues today, do you believe the principles established in U.S. v. SCRAP are still applicable and effective in addressing contemporary challenges? Looking back, what do you believe are the most significant advancements you have seen in environmental law and policy? Conversely, are there any persistent challenges or shortcomings that remain unresolved (e.g. the SCRAP era)?

Thank you so much,

Very Respectfully,
Ashley Hall

Dear Ashley,

Thank you for your note. I had lunch yesterday with one of the dorm directors mentioned in the book (who was not a member of SCRAP but a dear friend). We spoke about one thread we all shared: the stability and responsible values and the meaning of disciplined use of time from family that, it turned out, we all shared. When you read the book, and you'll get a fuller appreciation for the demands of time and values in play for everyone involved, keep that in mind. It also is one of the reasons that we remained friends for all the years since. One other thread that made the demonstrations a challenge was that we were largely on our own: the rules were set by us--not by deans or the president--working daily with residents and constantly working together as dorm directors located in different parts of this urban "campus." That is, the "adults" didn't matter. That is, we were the adults. And you'll see why, in my third year and doing SCRAP, we were so apprehensive about another major demonstration.

 Do watch the three book trailers, www.ToAHighCourt.com (videos and events), and now on YOUTUBE. I think they add insight into the book and the story; and "The Critique" begins to answer one of your questions about what has happened-- that is, what hasn't happened--in law schools.


I wouldn't try to talk about changes in the law; today whole courses and entire careers - especially in law schools--are devoted to that.  If you look at my answer to Meagan (Im assuming you get to see all the questions and answers), you'll see what I mean about what's changed; that is, what is no longer allowed by faculty and deans and alumni. I'll quote one part of my answer to her, in case you don't get to see it:

"I do think that today law students are underestimated, and it shows. Decades of “clinics” have left them looking to others—“adults,” I guess, as if they no longer have to be—who will channel and guide them. Banzhaf didn't want that or even encourage it. The research, in law and process and in finding complaints and studying and writing briefs, etc, was all on us. We did it, and without the internet or voice mail or zoom. That is what the course, and our decision to continue after the course ended and do all the work was all about. My friends in private practice—fewer as we all age—wonder why new associates seem to want lots of help. They are trained in law school clinics to do that; and I say in the Q and A, it makes no difference,when it comes to challenging corporate wrong doing, whether you’re at Yale or at the Scalia Law School. Neither allows it. One reason is that law firms—usually alumni-driven—sponsor (finance)clinics and provide law students positions (sometimes for no pay), as long as the subject matter or the “clients” do not involve challenges to corporate or even potential corporate clients and wrongdoing. And clinics do not give students the freedom, and the responsibility, to use their own values and judgements and skills. To me, faculty and the law schools have embraced a model that law students have gotten used to. SCRAP remains unique. At the time, other than the law suit, there were other students doing the same thing. I think it frightened faculty, deans, and alumni. And they found a way to channel it."

 As you'll see, SCRAP--as decision and as a group--continues to cause discomfort in the Supreme Court. Look and listen closely at what I described about Justice Kagan's dissenting decision in a recent case (she describes SCRAP but doesn't cite it and chides Chief Justice Roberts in doing so). I worry the field -- in academic settings-- has gotten so refined and deep that its all about teachers, and not about students, especially with respect to corporate wrongdoing, which underpins about everything that is a threat to the environment. And, keep in mind, it wasn't the "environment" than we began with. It was corporate wrongdoing, and the book shows you that in multiple ways. When you look at the "Official Trailer" and "The Critique",  focus especially on the monologue--largely from the book--where one student (me) recites this history that we all had learned (to George) and then concludes with; "It's not just the environment.....It's not right."

The voices for me and George Biondi are, actually, me and George. Recorded for the trailers and derived from the book.

Neil

 

Dear Jessie,



Thanks for your note. You’ve posed some good and important questions. I think answers to them exist from a reading of To A High Court, from a review of the three trailers made for the book (www.ToAHighCourt.com “Videos and Events”), and, based on my reply here, perhaps a second, more fulsome look at the GWU talk, including the fullness of Banzhaf’s admonition if you decided to do a project rather than take the final examination. And keep in mind we had only a week to define and report it to him, in class. I think it’s also valuable to state at the outset that SCRAP, in all its forms including that it started in a course on “Unfair Trade Practices” and that we were in front of the ICC for almost 8 months, is not taught in law schools. Instead, it has been taught only—narrowly—as a Supreme Court case, as if we sat around and wrote a complaint.



Our comfort. Throughout the book and the talk, the corporate focus of the course, the project we choose, and the answers to questions I gave after the talk were based explicitly on (1) students challenging corporate wrongdoing; (2) the freedom to use our own skills, values, and judgment as 2nd and 3rd year law students and as informed citizens with experiences and knowledge, which I described in the book; and (3) to do it all in our own name, as individuals (Neil Thomas Proto, etc.) and as an association, S.C.R.A.P. We also knew that we had to be the formal petitioner before the agency and, if necessary, should we decide it, the plaintiff in a court of law. There was no one between us and the ICC and the Railroads lawyers and the lawyers from the Environmental Defense Fund, who were as problematic as the others. We dealt with everyone directly. Our recognition of our place in this legal setting (in and out of the ICC and court) that we initiated and how to act responsibly was central to our duty. We knew and acted it throughout. That choice, in those three forms (1), (2) and (3), does not exist today for law students. And certainly not among “clinics.” Deans and faculty and alumni don’t allow it.



From the outset—and you’ll read this in the book and I make it clear in the talk when presenting and describing our first actions before the ICC (the three petitions filed in December 1971) -- we examined with care, first among ourselves (that dialogue is in the book and was revisited regularly in the drafting of the petitions) what the harm was to us, individually by name (Neil Thomas Proto, etc.) and as S.C.R.A.P., including procedurally (lack of due process, the absence of agency regulations) and in various forms (as tax payers in our home city and in DC, as shippers, users of the railroads, and ancillary harm (forms of pollution, burning, water pollution, bridge repairs) in the communities we lived in as well as in DC, in addition to allegations of aesthetic and environmental harm. We set out that harm—our standing to sue—in those petitions. And the ICC, while denying our substantive requests for relief, granted our request to be parties -as individuals by name as well as the group, S.C.R.A.P.— to the proceeding. Our battle with them and railroads went on for almost 8 months before we decided on and filed the lawsuits….This is the process you and other should focus on and you’ll read about it in the book…..We set out our standing again in our complaints in March and April 1972 (there actually were two law suits), and, as we were entitled to do, amended our complaint, including with affidavits (the complaint the lower courts and the Supreme Court examined). Once we did that with respect to standing to sue and harm, beginning with the three petitions, and were prepared and we expected to be deposed about that harm by our adversaries once in court (though never were, by their own choice), we met our ethical and factual duties and never questioned it.



As for costs: we, of course, worked for free (except for 3 credits in the course, and 2 credits for “legal writing” with no grade in the second semester) and had volunteers who did the formal typing. We also did a lot of the typing ourselves (envelopes; early drafts done on our own, for me in the dorm). Other costs—for example, printing, paper, staples, scissors, tape, lots of coffee, sandwiches, and lots of walking ( we personally filed and served all the legal documents; and Banzhaf took care of the mailing), and the use of my car—were minimal and covered (we also used a storage room near Banzhaf’s office as our work room when we needed it).All of this is described in the book.



I can’t attest to law school costs, GWU was certainly not inexpensive. And, to my knowledge, the three of us that continued after the first semester were the first in our family to go to college, let alone law school. We all also had part-time jobs to pay for tuition, books, etc., though mine and George’s job was hardly “part-time.”



The Amended Complaint is an appendix to To A High Court. You can read it.



One Other Reality. It was 1971-1972. Not 2023-2024. We were not tempered by deference and certainly not the constraint of clinics and faculty or the dean or alumni. Many students then worked for legal aid ( few years earlier, a group of students started their own at GW Law), other non-profits, consumer groups (some of those groups also were formed at GWU by law and undergraduate students, one of which I participated in) and engaged in freely provided, direct services to indigents and others in need of those services and guidance. Doing it was controversial and often frowned upon, except by a few faculty who knew how to support it. In the book, I describe friends who did that. It was of great value to them and to those they helped; that kind of conduct continues to be valuable today. But rarely was a faculty member involved, and if so, it was only tangentially and, for the best ones, “tangentially” was a choice related to how to teach. Shift the burden to students. Today, most law schools have these massive structural and hierarchical institutions and their own internal imperatives centered on faculty-run clinics, often connected to and funded by alumni, and often providing free services to others in a form they determine, in a battle for faculty and law school distinctiveness within and among schools.



If you don’t have access to my previous replies to questions that I’ve answered here, here is what I wrote to one inquiry that you may find helpful, and I think responsive to matters you’ve raised [I’ve added a few thoughts in backets]:



"I do think that today law students are underestimated, and it shows. Decades of ‘clinics’ have left them looking to others—“adults,” I guess, as if they no longer have to be—who will channel and guide them. Banzhaf didn't want that or even encourage it. The research, in law and process and in finding complaints and studying and writing briefs, etc., was all on us. We did it, and without the internet or voice mail or zoom. That is what the course, and our decision to continue after the course ended, was what the work required and why we took the course. My friends in private practice—fewer as we all age—wonder why new associates seem to want and need lots of help. They are trained in law school clinics to do that; and I say in the Q and A, it makes no difference, when it comes to challenging corporate wrong doing, whether you’re at Yale or at the Scalia Law School. Neither allows it. One reason is that law firms—usually alumni-driven—sponsor (finance)clinics and provide law students positions (sometimes for no pay) if the subject matter or the “clients” do not involve challenges to corporate or even potential corporate clients and wrongdoing. And clinics do not give students the freedom, and the responsibility, to use their own values and judgements and skills [and as the petitioner, not representing someone else or acting through or in support of someone else]. To me, faculty and the law schools have embraced a model that law students have gotten used to. SCRAP remains unique. At the time, other than the law suit, there were other students doing the same thing. [Petitioning government, including congress, about corporate wrongdoing, properly documented and sometimes actually testifying in ways unconstrained by conventional “wisdom”]. I think it frightened faculty, deans, and alumni. And they found a way to channel it."



The Impact and my career choices: I learned from SCRAP, but I think of it more as an affirmation of values and imagination and persistence in deep research as I do of acquiring conventional legal kills. It was also about affirming collaboration, making the most of divergent skills to accomplish a purpose, and doing it, sometimes in an unconventional way in a conventional legal setting, parts of which—and you’ll read this in the book as well—was tempered by the ambition and manipulative efforts of adversaries, broadly and historically defined, and including judges and a national environmental group, EDF. I did do a lot of environmental law in my career but not in the conventional definition; I never viewed it that narrow way, and my skills and imperatives were always broader….Native Americans, Public Lands, Urban and Suburban Land Use and Cities, Native Hawaiians, forms of discrimination, corporate wrongdoing, presidential decision-making, nuclear power, and I’ve written articles on space exploration, baseball, and basketball.



And, in my teaching. Graduate and law students in public policy. The requirement that students focus on a real project, in DC or their home city, walk it, critique it, interview those doing it and harmed by it, and propose changes, and share their work with decision makers and defend it in a mock trial of their peers.



******



There is a moment in the first trailer (the “Official Preview”) – revisited singularly in “The Critique”—where, after a forceful monologue in discussion with the other members, one student (the actual voice is mine) says: “It’s not right.” That’s where you want to begin.



Thanks, again Jessie. Best wishes.



Neil