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Article Excerpt
Introduction
I. Law and Social Change A. Litigation and Its Discontents B. Beyond Critique: The Pragmatic Turn in Law and Social Change Scholarship 1. Law as Politics 2. Relative Efficacy 3. Opportunities and Constraints C. Lessons for Contemporary Public Interest Litigation 1. Litigation Integrated with Political Mobilization 2. Litigation Across Diverse Practice Sites a. Legal Services b. Pro Bono c. Private Public Interest Law Firms d. Law School Clinics II. Strategic Philanthropy A. The Strategic Giving Framework 1. The Rationale for Strategic Frameworks 2. The Strategic Process 3. The Challenges for Strategic Philanthropy 4. Responding to the Challenges B. Lessons for Lawyers 1. Pro Bono Contributions a. The Extent of Pro Bono Work b. The Rationale for Greater Pro Bono Involvement c. Large Law Firms: Opportunities for Influence d. Challenges and Constraints 2. Public Interest Organizations a. The Strategic Value of Litigation b. Strategic Focus, Collaboration, and Evaluation c. Challenges and Constraints Conclusion
INTRODUCTION
In the American struggle for social justice, public interest litigation has played an indisputably important role. Yet over the past three decades, critics from both the left and right have challenged its capacity to secure systemic change. The critiques have varied, but have centered on two basic claims. The first is that litigation cannot itself reform social institutions. The second related concern is that over-reliance on courts diverts effort from potentially more productive political strategies and disempowers the groups that lawyers are seeking to assist. The result is too much law and too little justice.
These critiques, although powerful in their analysis of the limits of litigation, have generally failed to adequately acknowledge its contributions and the complex ways in which legal proceedings can support political mobilization. (1) Against the examples of lawyer domination, there are competing accounts of client empowerment and community-directed lawsuits. (2) Even as liberal critics have disparaged reliance on courts, conservative activists have enlisted them in efforts to block or roll back progressive change. (3)
This Article seeks to situate the debate over public interest litigation in a richer theoretical and empirical context. In essence, our argument is that such litigation is an imperfect but indispensable strategy of social change. Our challenge is to increase its effectiveness through better understanding of its capacities and constraints.
To that end, we draw on two bodies of work: research on law and social change, and research on social philanthropy. The first literature offers a detailed empirical and theoretical picture of how lawyers mobilize law to change institutional rules and redistribute power. (4) In its empirical dimension, this research explores the ideals and practices of public interest lawyers and how their strategies are informed by where they work--non-profit public interest organizations, large firm pro bono programs, plaintiff-side law firms, and law school clinics. (5) In its theoretical dimension, this literature draws on the sociology of law and social movements to explore the interplay between legal proceedings and political mobilization. A second body of work, which focuses on strategic philanthropy, holds important insights for how public interest organizations and pro bono programs can most effectively direct their social reform efforts.
We draw a number of lessons from this research. The first is that litigation, although a necessary strategy of social change, is never sufficient; it cannot effectively work in isolation from other mobilization efforts. Second, money matters: how public interest law is financed affects the kinds of cases that can be pursued and their likely social impact. A deeper understanding of financial constraints and opportunities in different practice contexts is therefore critical to effective reform. A third key insight is the importance of systematic evaluation. Only through more reflective assessments of the impact of litigation can we realize its full potential in pursuit of social justice.
Any discussion of these issues confronts a threshold definitional issue: what constitutes public interest litigation. The concept of the "public interest" is contested at the level of both theory and practice. (6) Commentators differ over whether there are widely shared criteria for assessing the public's interest as well as whether any particular case meets the definition. (7) Our point here is not to revisit that debate, but rather to suggest that it needs to become part of the process for evaluating social impact litigation. Lawyers who pursue what they consider "public interest" work need concrete criteria for assessing its impact and justifying their priorities. In many contexts, there may be no single "right" answer about what advances social justice but there are better and worse ways of analyzing the question.
I. LAW AND SOCIAL CHANGE
A. Litigation and Its Discontents
The role of law as an instrument of social change rests on a fundamental assumption about its relative autonomy from politics: decision makers are to some extent bound by legal rules irrespective of their political consequences. (8) Although the degree of judicial autonomy varies across contexts, it provides the leverage that public interest lawyers seek to exploit. Litigation is a key strategy for protecting the rights and enlarging the power of subordinated groups, particularly when other channels of influence are unavailable. Groups hobbled by discrimination or collective action problems may turn to courts as allies in the struggle for social justice.
The public interest law movement that emerged in the 1960s and 1970s advanced this vision of court-centered social change, (9) drawing on models from civil rights and civil liberties groups, particularly the test-case strategy of the NAACP Legal Defense and Educational Fund. (10) Early litigation victories brought status and resources to developing public interest organizations, which enlisted courts in progressive social reform. (11) A number of structural factors encouraged this strategy: a federal judiciary receptive to civil rights claims; centralized administrative agencies susceptible to re form through impact lawsuits; and a system of welfare entitlements open to enforcement and expansion. (12)
It was, in part, the very success of public interest litigation that threatened its structural foundations. Courthouse victories fueled a conservative reaction seeking to limit federal authority over civil rights and civil liberties, economic and environmental regulation, and social welfare. As the right gained power in the 1980s and 1990s, national governance structures were reshaped. An increasingly conservative federal judiciary became less hospitable to the claims of liberal public interest groups. Federal agencies, long criticized as inefficient and unaccountable, lost authority in the trend toward decentralization and deregulation. (13) Core federal entitlements, particularly those involving welfare, were curtailed. (14) These structural changes foreclosed litigation opportunities for liberal public interest organizations at the federal level, while opening the door to claims by the growing number of conservative advocacy groups. (15) In addition, public interest lawyers faced new procedural and financial constraints: Congress prevented federally-funded legal services lawyers from bringing class actions, lobbying, collecting attorney's fees, and engaging in political advocacy; the Supreme Court limited attorney's fee awards in civil rights and environmental cases; and some states capped attorney's fees and damage awards, and restricted the ability of law school clinics to undertake controversial cases. (16)
This backlash coincided with a scholarly critique of public interest law, which came largely from the left. One strand of criticism questioned the efficacy of litigation strategies. It drew on empirical research to demonstrate the inadequacy of law reform as a vehicle of social change. Joel Handler's assessment of public interest law concluded that litigation alone could not reform field-level practice in the consumer, environmental, civil rights, and welfare rights arenas due to the exercise of vast administrative discretion--what he called the "bureaucratic contingency." (17) Gerald Rosenberg's quantitative study concluded that courts could "almost never be effective producers of significant social reform" because of their dependence on other political institutions and their lack of enforcement powers. (18)
A second critique emphasized the tradeoffs between litigation and political mobilization. Stuart Scheingold famously warned against the "myth of rights," which diverted attention from the political roots of social problems. (19) On this view, litigation drained scarce movement resources, created confusion between "symbolic" and "substantive" victories, and co-opted potential movement leaders by paying them off with monetary awards. Critical legal scholars further argued that reframing collective grievances in terms of individual rights dissipated collective political energy. Even when litigants prevailed, the result was to legitimize a fundamentally unjust social and legal order. (20) For these critics, collective political struggle was the only effective way to challenge structural inequality. (21)
A third line of criticism revolved around issues of accountability. In one of the most influential expressions of this concern, Derrick Bell challenged the NAACP's school desegregation campaign. In his view, the NAACP's commitment to desegregation--supported by its middle-class white and black constituents--ignored the preferences of black communities for local control and quality initiatives in neighborhood schools. (22) Poverty law scholars in the 1990s, incorporating insights from critical race theory and feminist scholarship, extended this analysis by focusing on the marginalization of clients in traditional litigation strategies. (23)
B. Beyond Critique: The Pragmatic Turn in Law and Social Change Scholarship
The critique of rights associated with first-wave public interest law partly reflected disillusionment with its failure to achieve transformational change. With time and scholarly distance have come new approaches to understanding the relationship between law and social reform. These approaches reflect varied theoretical and empirical frameworks, but share a pragmatic focus. They start from the premise that litigation has limits, but go on to question how it can best advance social justice. In essence, this literature addresses the tradeoffs of different forms of activism--including litigation--in different social contexts and practice sites. Its key claims are that: (1) litigation is a political tool that, when used strategically, can stimulate meaningful change and complement other political efforts; (2) whether litigation "works" or not must be judged in relation to available alternatives; and (3) in order to evaluate the social change potential of litigation in a given circumstance, it is necessary to examine the conditions--political, economic, cultural, and organizational--within which a lawsuit operates.
1. Law as Politics
Recent scholarly efforts to reassess what lawyers can "do for, and to" social movements tend to offer more positive accounts of impact litigation. (24) This research sees law as politics by another name, and links courtroom battles to political mobilization and community organizing. In these accounts, litigation is shaped by clients and community activists and the objective is political transformation, not doctrinal victory. (25)
This is not, of course, a new conceptualization. Three decades ago, Handler underscored both the direct and indirect ways that legal claims shape social movements. (26) During the same era, Gary Bellow advanced a "focused case" strategy in combination with community organizing and legislative advocacy. (27) Throughout this period, labor lawyers similarly saw litigation as a means of advancing the cause of unionization. (28) What contemporary research offers is a deeper theoretical and empirical foundation for integrating legal advocacy and political mobilization.
At the theoretical level, William Simon has proposed a model of lawyering that promotes flexibility, transparency, evaluation, and inclusive participation in institutional decision-making processes. (29) While he raises questions about the winner-take-all approach of traditional impact strategies, he believes that litigation, when combined with inclusive political processes, can be put to pragmatic ends. For example, when deployed strategically, lawsuits can destabilize entrenched institutional structures and subject them to greater accountability. (30) From a social science perspective, Michael McCann argues for a constitutive understanding of the role of law in social transformation. That approach moves beyond a causal analysis of the relationship between court decisions and social outcomes, and instead traces the complex processes by which law shapes social meaning and informs individual and collective action. (31) For example, a lawsuit that receives widespread attention may raise public consciousness and stimulate movement activity by revealing the vulnerability of structural arrangements that once seemed impervious to change. (32) Even lawsuits unsuccessful in the courts may generate public outrage that spurs political action. From this perspective, judicial decisions are not simply legal decrees, but also social signals that are channeled into collective movements. (33) Similarly, legal action may allow activists to leverage gains by putting specific issues on the public agenda and threatening to impose litigation costs if decision makers fail to find political solutions. (34) Assessing the animal rights movement, McCann finds that "[w]hen carefully coordinated with demonstrations, pranks, and other media events, high-profile litigation worked as a double-barreled threat--at once mobilizing public opinion against targeted 'abusers' and threatening both costly legal proceedings and possible defeats in court." (35) Austin Sarat and Stuart Scheingold, who have led a path-breaking investigation into cause lawyering over the past decade, have similarly concluded that in the right circumstances, lawyers can make "seminal contributions to the building of social movements." (36)
Empirical research on public interest lawyers suggests that they often view their work as complementing and contributing to political mobilization. McCann and Helena Silverstein's study of the pay-equity and animal rights movements found that lawyers generally did not view lawsuits as "ends in themselves" and were "committed to encouraging, enhancing, and supplementing" movement activity. (37) Similarly, Ann Southworth's study of civil rights and poverty lawyers found that both groups saw litigation as part of multi-dimensional strategies. (38) Many perceived lawsuits as "political assets" that could provoke legislative reform, discourage future wrongdoing, and mobilize community participation. (39) In the same vein, Cummings' project on low-wage worker advocacy in Los Angeles has examined lawyers who view legal advocacy as part of a comprehensive campaign that deploys multiple strategies to advance local policy reforms to strengthen labor rights. (40)
Rhode's recent empirical study of prominent public interest organizations confirms that their leaders generally recognize the need to think strategically and to pursue multiple approaches. (41) Litigation remains important, but it is used strategically in tandem with other initiatives. (42) Some 90% of leading public interest legal organizations bring impact cases, and nearly half devote at least 50% of their efforts to such work. (43) These lawsuits often attempt to maximize effectiveness by targeting practices that require systemic reform. (44) Objectives apart from winning can be critical, such as making a public record, raising awareness, or imposing sufficient costs and delays that will force defendants to adopt more socially responsible practices. (45) Many leaders stress the need to maintain litigation as a "credible threat," but also to avoid a "scattergun" approach that would "spread [resources] too thin" for structural change. (46)
2. Relative Efficacy
An important premise of the critique of litigation is that political mobilization, such as organizing and social activism, is generally more effective in producing long-term change. Reforms that come through the legislative process may appear more legitimate than those that come through courts. So too, political mobilization can create the ongoing citizen engagement that is crucial to sustain, consolidate, and build on victories. For this reason, scholars have raised concerns about what Orly Lobel calls "legal cooptation"--the tendency of legal strategies to dissipate activism and limit a movement's transformative potential. (47)
The more pragmatic approach to law and social change, however, suggests that the limits of litigation cannot be assessed in a vacuum. It is, of course, true that--under certain circumstances--litigation may divert activists from sustained mobilization or result in decisions that are susceptible to political reversal. But so can political strategies. A key insight of the recent literature is that evaluations of litigation always need to consider the risks and feasibility of alternatives. Sometimes political strategies are not realistic options because of the strength of the opposition. Even when political strategies are possible, they are not always superior to litigation. Scholars often assume that political mobilization continues over time, but movements are frequently episodic. When successful, they often culminate in legislative actions that can sometimes trigger backlash. Thus, statutory reforms no less than judicial orders are vulnerable to strategic reinterpretation, deliberate non-enforcement, and political reversals. (48) For instance, the crowning achievement of the labor movement in the 1930s--the National Labor Relations Act--has been consistently eroded through judicial decree, legislative amendment, and administrative interpretation. (49) In short, the legitimacy of a law resulting from democratic processes does not insulate it from subsequent political challenge. This is particularly true when the law benefits a less powerful group. (50) Moreover, in some situations, legal strategies can prove highly effective in changing social practice, as when the rights at issue are relatively self-executing and do not require substantial administrative enforcement. Judicial decrees mandating gay marriage are a case in point.
What the recent literature suggests, therefore, is that the effectiveness of litigation in any given situation depends on a range of complex, contextual factors, and must be evaluated in relation to plausible alternatives. Although, as Scheingold warned, activists must avoid mythologizing rights, so too they must avoid romanticizing political activism.
3. Opportunities and Constraints
Focusing on the potential contributions of litigation--not just its limits-invites analysis of the conditions that shape effective litigation strategies. Law and social movement scholars, in particular, have emphasized political and organizational structures that influence the development and impact of legal efforts. Sarat and Scheingold have labeled this dynamic the "'structure-agency' problematic"--the interaction between structural "opportunities and constraints" and the actions of individual agents, like lawyers, who can sometimes alter the structural terrain. (51) The organizational level--where lawyers work--shapes norms, defines missions, and imposes resource constraints.
Scholars associated with the political process school of social movements emphasize the importance of the "political opportunity structure" in generating movement activities, defining the range of tactics, and identifying goals. (52) Formal political institutions constitute the key structural element, and their degree of centralization shapes both the possibility for intervention and the ability of the state to meet movement demands. (53) These institutions have the power to reward or sanction movement activities: policy makers can increase the cost of challengers' collective action through repression or assist it through political support. (54) The legal regime shapes the political context both in the sense that it offers an institutional forum for attacking injustice and provides symbolic resources like "rights" for movement activists. (55) A key incentive for movement actors, then, is the emergence of opportunities within the institutional structure that invite challenges. For litigators, these opportunities include a receptive judiciary and statutory or doctrinal developments that allow for systemic change.
Whether a movement can take advantage of such opportunities depends on its access to resources and its ability to marshal them in pursuit of collective goals. (56) Organizations therefore mediate the relationship between legal action and the broader political environments. (57) Resources are necessary not only to overcome the free-rider problem faced by groups seeking to provide collective goods, but also to sustain organizational activity in pursuit of movement goals. (58) Resources often come with strings attached, which both enables and channels movement activities. (59) For example, some public interest legal organizations report that foundations are reluctant to fund litigation, and prefer new "hot" projects promising demonstrable outcomes. (60) Federally-funded legal services organizations are constrained by statutory restrictions. Groups dependent on attorney's fees must gear their activities toward revenue-generating cases.
How resources are mobilized depends, in part, on an organization's governance structure and priorities, which reflect both formal rules and informal norms. Groups that operate through staff consensus and loose oversight from a board of directors may have more freedom to allocate resources than institutions subject to more hierarchical decision making, such as large law firms. Organizations may place more or...
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