Atlantic Legal Foundation- Advocate for Free Market System


The Metropolitan Corporate Counsel
Pg. 39

Atlantic Legal Foundation is a non-profit, public interest law firm whose mission is to seek through legal action to protect and advance the principles of limited government, the free-market system and the rights of individuals. ALF’s goal is to advance the cause of economic and individual freedoms by making government – federal, state and local – more accountable and less burdensome. ALF has become the leader among public interest law firms and other advocacy groups in the fight against the admissibility of poorly reasoned "junk" scientific and other expert testimony in the courtroom. To accomplish our goals, ALF provides legal representation, without fee, to individuals, corporations, trade associations, former government officials, members of Congress, and scientists. ALF does all of its legal work inhouse, although we do occasionally seek and obtain pro bono assistance from private law firms, and also sometimes partner with other public interest foundations. Our goal is to litigate cases involving important constitutional law or public policy issues which will have broad impact.

Atlantic Legal Foundation was founded in 1977. It has offices in New York City and in Harrisburg, Pennsylvania. ALF’s board of directors consists of corporate general counsels, lawyers from private law firms, former judges and government officials, businessmen, and academics.

The Foundation also has a advisory council consisting of accomplished lawyers, academics, businessmen and scientists. ALF has been active in diverse areas of the law. These have ranged from First Amendment free speech and right of association cases, to Fifth Amendment "takings" cases involving restrictions on use of private property, to Fourteenth Amendment equal protection and due process cases arising out of discrimination in public employment or public contracting or out of burdensome government regulation, to separation of powers cases involving overreaching by the Executive Branch of federal or state government in derogation of the powers of the legislature, to cases involving principles of federalism in which the federal government has encroached on powers that rightfully belong to states and localities to cases in which states have infringed powers that the Constitution reserves to the national government.

The Foundation recently elected as President William H. Slattery, who was for almost two decades General Counsel of Republic National Bank, and elected as Senior Vice President _ Counsel Briscoe R. Smith, who was a Partner in Milbank, Tweed , Hadley & McCloy and served as General Counsel of U.S. Trust Company.

Science And the Law

Atlantic Legal Foundation has been particularly active in the last five years in advocating the assimilation and utilization of correct principles of science in litigation and regulation. In our efforts to ensure that credible science is the basis for adjudication and regulation we have represented more than two dozen prominent scientists as "friends of the court" before the United States Supreme Court, several federal courts of appeals, and the highest courts of several states. We include among our clients 18 Nobel Prize winners, the editor-in chief the New England Journal of Medicine, and the deans of the Harvard University and University of California Schools of Public Health.

Our briefs on science and the law issues have been recognized and quoted by the United States Supreme Court in support of its decisions in two leading cases _ Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire Co. v. Carmichael, and by the California Supreme Court in an important case on electromagnetic fields, San Diego Gas & Electric Co. v. Covalt. We have also filed briefs in major cases involving breast implants, exposure to PCBs, and other cases involving product liability and environmental or health impacts of chemicals, pharmaceuticals and industrial processes.

Atlantic Legal Foundation has fought to make sure that expert testimony in electro-magnetic field litigation was sound and reliable. ALF participated in several cases in appellate courts in California and New York in which plaintiffs’ theories of liability of public utilities were rejected. ALF has also actively participated in commenting on the work of the National Institute for Environmental Health and Safety Working Group, and ultimately the NIEHS report to Congress significantly moderated the conclusions of the NIEHS Working Group, which ALF had strongly criticized. ALF continues to monitor the issue and to work with scientists and industry groups to try to ensure that the regulatory approach to EMF is sound and balanced.

Late last year, the Occupational Safety and Health Administration (OSHA) published a massive proposed rule on ergonomics in the workplace.Atlantic Legal Foundation submitted extensive comments questioning the scientific basis for the underlying assumptions that musculoskeletal injuries are primarily caused by the work environment, or that regulations that focus solely on the workplace are the appropriate means to reduce or ameliorate such injuries. We intend to work with industry and science groups to monitor and participate in this important regulatory area.

Atlantic Legal Foundation has initiated a Good Science in the Courtroom and Private Enterprise Speaking and Writing Programs. We developed in 1998, continued in 1999, and will continue in 2000 a program of presentations to business, government, legal and student groups and articles for legal newspapers, law journals and general publications to educate and stimulate discussion regarding these very important areas of the law.

In addition, we have initiated publication of the "Atlantic Legal Foundation Science in the Courtroom Review." The second edition is about to be published, and will be of law review quality and format. We intend to publish this law journal at least twice a year.

Public Policy

In the area of public policy, Atlantic Legal Foundation represented former President Gerald R. Ford and approximately 25 former senior foreign policy officials who served in every administration, Democrat and Republican, from that of John F. Kennedy to the present, including four former Secretaries of State, six former Secretaries of Defense, four former Secretaries of Commerce, two former Secretaries of the Treasury, two former Attorneys General, former ambassadors, National Security Advisors and White House Chiefs of Staff, in a case involving the conflict between state law and the federal foreign affairs power under the Constitution.

Crosby v. National Foreign Trade Council was decided by the Supreme Court on June 19, 2000. The Court, in a unanimous opinion, struck down the Massachusetts law that barred state agencies from doing business with any firm that does business with, invests in or has commercial dealings with companies or other entities in Myanmar (Burma). The Court affirmed the Court of Appeals for the First Circuit and the district court on all major issues: federal preemption, the plenary foreign affairs power of the federal government, and the foreign commerce power of the federal government. ALF’s brief focused on the plenary foreign affairs power of the federal government.

Previously, we represented two sitting United States Senators in successfully challenging President Clinton’s attempt to usurp Congressional authority by adopting a policy barring the government from contracting with firms that hired "striker replacements," despite the fact that Congress had consistently refused to adopt legislation that had the same purpose.

On the state level, we have challenged actions by the governor of New York which we argued were contrary to the express policy of the legislature which had consistently refused to adopt legislation on the matter.

Reverse Discrimination/ Affirmative Action

In a series of cases, ALF challenged New York City’s race preference utilization or set-aside program, on behalf of small construction companies that were low bidders on City contracts, but were denied the contracts either because the contracts were awarded to so-called minority-owned firms, or because our client refused to subcontract out the mandated percentage of the contract to minority or woman-owned firms. We were successful in getting the New York State courts to declare the "price preference" program (in which a minority or woman owned firm would be awarded the contract even if it was not the lowest responsible bidder) unlawful, and in getting the City to settle our federal court case by discontinuing the City’s "minority utilization" program, which required prime contractors to subcontract a stated percentage of the work to minority or woman owned firms.

ALF also successfully represented New Jersey firefighters in preventing the U.S. Department of Justice from circumventing the civil service system to achieve a racial composition quota for municipal fire departments in New Jersey, despite the fact that the Justice Department, the New Jersey Department of Personnel and the federal court had all approved the firefighter entrance exam.

Property Rights

ALF successfully represented homeowners in Putnam County, New York in a lawsuit brought by the New York City Department of Environmental Protection, which advanced a bogus claim that the homeowners’ modification and renovation of their existing home threatened the safety of the New York City water supply because their property was in the New York City watershed area. We defended the homeowners because the City’s attempt to limit their ability to expand their house without the approval of the New York City "Environmental Police" was arbitrary and capricious. The New York City DEP sought to regulate development in the watershed on the basis of "potential" injury, without any scientific or other proof that the homeowners’ actions had any injurious effect on water quality.

We also successfully defended a Pennsylvania commercial fish farm against attempts by the Pennsylvania Game Commission to destroy its business by preventing the farm from obtaining permits to take a limited number of predatory birds as a means of deterring the birds from decimating the fish crop.

Free Speech And Right Of Association

Since the early 1980s, Atlantic Legal Foundation has represented students who objected to the use of mandatory student fees to fund political and ideological advocacy by student groups with which they disagreed. In Galda v. Rutgers, we succeeded in having the United States Court of Appeals for the Third Circuit declare Rutgers’ mandatory student fee scheme an unconstitutional infringement of the First Amendment free speech rights of the dissenting students. In Carroll v. Blinken, ALF was partially successful, and the United States Court of Appeals for the Second Circuit placed limitations and conditions on the use of student fee money for political and ideological advocacy. In Southworth v. Regents of the University of Wisconsin, we filed an amicus brief in support of several students who sued the University of Wisconsin challenging the use of mandatory student fees to support a number of political and ideological advocacy groups such as Wisconsin Public Interest Research Group, the Green Party, the student socialist organization, other left wing radical groups and gay and lesbian groups. The students challenging this use of the mandatory fee were successful in the federal district court in Wisconsin and in the United States Court of Appeals for the Seventh Circuit. Our brief in support of the students argued that the Supreme Court’s first amendment "compelled speech" analysis in its union dues cases (such as Abood v. Detroit Teachers Union and Lehnert v. Ferris Faculty Association) and in its bar association dues case (Keller v. State Bar of California) was equally applicable to student fee cases, and that the university’s "educational mission" rationale (which was also urged by the university administrators in ALF’s Galda and Carroll cases), was contrived.

Business/Regulatory Environment

Atlantic Legal Foundation is working with the New York Academy of Sciences on a project to evaluate and suggest ways to reduce the regulatory impediments to high-tech businesses locating and growing in the New York Metropolitan area. New York City and environs rank well below many other areas of the country in the number of such businesses. ALF will be working extensively with NYAS to assess the regulatory and legal hurdles and compare them with those in other areas of the country having high-tech growth, and to develop and implement plans to reduce regulatory impediments and simplify the regulatory landscape. This project has important implications for the New York area as technology related businesses are the growth engine for several other areas of the country and New York needs to diversify its economic base. Elements of this program may be useful in evaluating and reducing legal impediments to high tech businesses in Pennsylvania as well.

The federal appropriations acts for the past two fiscal years have included a mandate that data generated by studies funded by the federal government be made available to the scientific community. The Office of Management and Budget (OMB) solicited comments on regulations implementing this requirement, and ALF has responded to the OMB endorsing disclosure. This is an important issue as federal government studies are used as the basis for rule making and enforcement. It is important to require disclosure of study data so that junk science can be kept out of the rule-making process as well as the courtroom, and we will continue to work on this issue with our scientists.

Atlantic Legal Foundation is a tax-exempt, 501(c)(3) charitable organization. It is funded by grants from philanthropic foundations and contributions by corporations, law firms and individuals.