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Article Excerpt
INTRODUCTION
I. METHODOLOGY AND CHARACTERISTICS OF THE SURVEYED ORGANIZATIONS A. Scale and Complexity B. Goals C. The Political and Judicial Climate D. Achievements and Challenges E. Strategies F. The Contemporary Landscape II. THE STRUCTURE OF DECISION MAKING A. The Priority-Setting Process B. The Influence of Funders C. Criteria for Decisions III. MONEY A. Sources of Funding B. Challenges C. Time and Staff D. Salaries, Recruitment, and Retention IV. CLIENTS AND COLLABORATION A. Clients B. Collaboration with Grassroots, Government, and Private Sector Organizations C. Public Interest Collaboration D. Pro Bono Collaboration CONCLUSION APPENDIX I APPENDIX II: SURVEY PARTICIPANTS
INTRODUCTION
"Lord, we ain't what we want to be; we ain't what we ought to be; we ain't what we gonna be, but, thank God, we ain't what we was." (1)
The contemporary public interest legal movement is not far from that description, which Martin Luther King, Jr. once invoked to characterize the civil rights campaign of the 1960s. Most of this nation's leading public interest law organizations are now in midlife; they have grown substantially in size and influence since their formation beginning in the late 1960s. Groups that started with a few idealists, typewriters, and a Xerox machine are now multimillion dollar institutions at the forefront of social reform. Yet as the capacities of public interest legal organizations have increased, so, too, have many of the problems they seek to address. The growing conservatism of the public and the courts, and the increasing competition among reform-oriented groups, have also added new challenges. The movement has made enormous progress, but its aspirations far exceed its achievements.
Despite the importance of American public interest legal organizations as a force for social progress, they have attracted little systematic research. Our knowledge base is strikingly thin on key issues concerning their priorities, structure, strategies, funding, and challenges. This Article helps fill some of the gaps. Through interviews with some fifty leaders of the nation's preeminent public interest legal organizations, the study detailed below offers the most comprehensive profile available of cause lawyering at its best.
The survey's findings challenge much of the conventional criticism of public interest advocacy. Contrary to critics' frequent claims, the organizational leaders profiled here have been acutely aware of the limits of litigation in securing social change. Over the past two decades, as courts have grown more conservative, most organizations have become more selective in their use of lawsuits, and have focused more attention on multiple strategies including policy and public education. Public interest leaders have also been more proactive in their choice of issues, attentive to the need for collaboration, and sensitive to the challenges of credit and control that alliances often pose.
The success of these organizations is apparent on multiple levels. They have grown substantially in size, scale, and diversity. Their influence has been critical in protecting fundamental rights, establishing legal principles, developing social policy, and raising public awareness. Yet as the capacities of public interest law have increased, so to have their aspirations and the problems they seek to address. Although the challenges vary somewhat across different substantive areas, organizations generally face substantial obstacles in securing adequate resources and support in an increasingly competitive environment. How the nation's leading public interest lawyers cope with those pressures, and remain a powerful influence for reform is the subject of the discussion that follows.
I. METHODOLOGY AND CHARACTERISTICS OF THE SURVEYED ORGANIZATIONS
The survey was designed to include a diverse sample of the nation's leading public interest legal organizations. It was not representative in any statistical sense. No public database of such organizations exists, nor do rigorous, widely accepted criteria for determining what constitutes a "public interest" legal organization or how to assess "influence." Although there have been some efforts to construct samples, none have attempted to do so along lines consistent with this study's objectives: to understand the structure, strategies, and challenges facing leading legal organizations attempting to promote the public interest as they conceive it. (2)
Accordingly, this research constructed a sample that included most of the nation's largest and well-recognized public interest legal organizations, along with a selected group of smaller organizations that were diverse across key dimensions: substantive fields, ideology, size, strategies, and geographic scope. The study broadly defined "public interest legal organizations" to include nonprofit tax-exempt groups that attempted to use law to achieve social objectives. This definition avoided the difficulties of less inclusive approaches, such as those requiring "representation of previously unrepresented interests" or limiting coverage to groups involved in adjudication. (3) To identify a sample of about fifty organizations, I consulted a wide range of sources including public interest lawyers, directors of law school public interest programs, legal researchers, websites and publications such as Harvard Law School's Handbook on Public Interest Work. (4)
I initially contacted fifty-seven organizations during July and August of 2007 and attempted to arrange a telephone interview, typically with the director or president, but occasionally with the head of the legal program. The first contact was by e-mail and included a letter explaining the study and a copy of the interview questions. The letter and form appear in Appendix I. Participants had the option of remaining anonymous, of completing the questionnaire in whole or in part online, or of designating someone else in the organization to respond. Scheduling an interview usually required several follow-up contacts by phone or email; and completing it by phone generally required about an hour. Fifty-one groups participated; they are listed in Appendix II. Four organizations responded online. Four dropped out of the sample because an interview could not be scheduled during the relevant time period or another similar group responded first. (5) Only two groups refused to participate. (6) The overall response rate of 90% was exceptionally good for a telephone survey. None of the participants in the study requested anonymity, although a few asked that certain responses remain off the record; these are quoted without footnote attribution throughout this article.
The resulting sample was diverse along multiple dimensions. It included groups working in the following areas:
* Environmental Law (6)
* Civil Rights and Civil Liberties (including reproductive rights, human rights, and religious liberty) (20)
* Poverty (10)
* Immigrants' Rights (7)
* Women's Rights (6)
* Free Market/Property Rights (5)
* Asian American (4)
* Latino/Hispanic (4)
* African American (4)
* Juvenile (4)
* Education (3)
* Criminal Justice, Death Penalty (2)
* Gay, Lesbian, Bisexual, Transgender (2)
* Physical Disability and Mental Health (2)
* Technology (2)
* Education (2)
* Consumer (1)
* Elderly (1) (7)
Eight groups (16%) considered themselves "conservative," or "freedom-based" organizations. They worked on a broad range of substantive issues including free market/property rights, environmental concerns, equal opportunity, religious freedom, reproductive issues, and criminal justice reform. For convenience, this study follows conventional usage and refers to these organizations as conservative. Where relevant, however, the discussion draws the distinction that many of these groups emphasize between those that pursue a libertarian "freedom-based" agenda on economic and regulatory issues, and those that advance a conservative position on social issues.
The surveyed organizations varied not only in terms of substantive and ideological focus, but also in size, location, structure, and strategic focus. (8) Their annual budgets ranged from $400,000 to $103,000,000. The median was $4,000,000. Staff size ranged from 5 to 425. The median was 30. All major regions of the country were represented, although the focus on national leaders meant that most were headquartered in four metropolitan areas: New York, Washington, D.C., San Francisco, and Los Angeles. Eight organizations (16%) had members, whose roles varied along lines discussed in Part III. In terms of strategies, a few groups focused almost exclusively on appellate litigation, while several others engaged in no litigation and emphasized research and policy-related work. Most employed a mix of strategies detailed below.
In other respects, the participants in the study were similar. The vast majority of organizations were founded in the late 1960s or 1970s. Few predated the 1960s or emerged later than the 1980s. (9) So, too, almost all the leaders of these organizations have had considerable experience working in public interest law. As Appendix II indicates, only 4% had held such jobs for fewer than ten years; slightly over a third (37%) had ten to twenty years experience, slightly under a third (31%) had twenty-one to thirty years, and about a quarter (27%) had over thirty years. Such a wealth of direct knowledge gives these leaders an exceptionally well-informed perspective on the changes and challenges in public interest legal work.
A. The Evolution of Public Interest Law
A central objective of the study was to gain a richer understanding of the evolution and challenges of public interest law from leaders who have the greatest direct experience with those issues. To that end, the survey asked: "In general terms, how do you think the public interest law movement has changed over the last quarter century in your field?"; "How have broader social and political changes affected your organization?"; "What have been the major achievements in your field?"; and "What have been the major limitations [in your field]?"
The most obvious change has been size. Over the last several decades, the number, scale, and diversity of public interest legal organizations has markedly increased. In 1975, Joel Handler, Betsy Ginsberg and Arthur Snow published the first systematic study of what they identified as the "core" of the movement. It included eighty-six organizations. (10) Some thirty years later, Laura Beth Nielsen and Catherine Albiston estimated the total number of legal aid and public interest legal organizations to be about a thousand. Although that estimate included direct service providers that were not primarily engaged in using law to affect social policy, it is still clear that the movement has grown dramatically. (11)
Many leaders commented on the increase. When most of today's leading organizations were founded, almost no other groups were focusing on the same issues, and a small number of attorneys did "all the heavy lifting." (12) Brian Stevenson, director of the Equal Justice Initiative, noted that in the 1980s, you could "count on one hand the number of lawyers doing death penalty work." Some fields were not even recognized as fields: youth law and technology were commonly cited examples." (13) Now, as Jamienne Studley, president of Public Advocates put it, "there is somebody for every issue." The range of perspectives available on key issues has also broadened. Virtually all the leaders of conservative groups emphasized that change and noted the ability of the right to "fight back" in areas once dominated by liberal organizations. (14) The movement's growth has created both new opportunities and new challenges. As the discussion below notes, many organizations work effectively in coalitions and partner with each other on amicus briefs and policy initiatives. Yet the increase of fellow travelers has also introduced new pressures in the competition for funds and recognition, and has complicated the challenges of presenting a united front.
Growth is also reflected in staff size and budget. Table 1 illustrates the shifts in staff size over the last three decades. In 1975, 85% of surveyed organizations had ten or fewer lawyers on staff and only 5% had more than twenty. By contrast, in 2007, only 40% of surveyed organizations had ten or fewer lawyers on staff and 20% had more than twenty. In 1975, almost a quarter (22%) of organizations had no non-lawyer staff, and only 2% had more than twenty. In 2007, only 2% of organizations had no non-lawyer staff, almost half (46%) had more than twenty, and 10% had more than 150. A corresponding growth was apparent in financial resources. In 1975, about a quarter (28%) of organizations had annual budgets of under $150,000 or about $560,000 in current dollars; only 10% had budgets of at least $900,000, or $3.4 million in current dollars. (15) In 2007, only 8% of surveyed organizations had annual budgets below $1 million. Slightly over half (54%) had budgets between $1 and $5 million; and slightly under a quarter (24%) ranged from $5 million up to $15 million. About a sixth (16%) had budgets of at least $15 million, and 8% had budgets above $50 million.
A. Scale and Complexity
This increase in scale is partly due to the increased scope and complexity of problems and strategies necessary to address them. Environmental public interest law is a clear example. Frances Beinecke, president of the Natural Resources Defense Counsel, noted that when the organization was founded in 1970, the issues appeared "black and white." The challenge was to "identify polluters and make them stop." Similarly, the initial focus of the Sierra Club's legal staff was "just say no. Shut it down, clean it up." (18) Today, organizations like Earth Justice, the Environmental Defense Fund, the Natural Resources Defense Council, and the Sierra Club, all have a far broader and more proactive agenda. Crafting a responsible environmental framework requires a coordinated mix of strategies, which often includes partnerships with former corporate or governmental adversaries. (19) The global dimension of problems in areas like climate change, human rights, and privacy and technology have also required an increasing number of American public interest legal organizations to work on an international scale. (20)
In other fields, broader social, economic and demographic changes have increased the populations at risk and complicated efforts to assist them. For groups dealing with poverty and immigration, growing income inequalities and rising rates of undocumented and non-English speaking poor have posed new challenges. (21) The problems have also been compounded by limitations in government support, particularly prohibitions on assistance by federally-funded programs to undocumented residents. (22)
Leaders of civil rights organizations similarly emphasized the increased complexity of problems at issue. Ted Shaw, president of the NAACP, noted that a quarter century ago, "the evil [was] clear and visible and easy to organize around. Now evil in this crude form is rare." In contexts like juvenile justice, the problem is often "less a lack of will than of competence," and the solutions are less self-evident. (23) The heads of women's rights groups made much the same point. As Kathy Rogers, president of Legal Momentum, summarized the situation, the underpinnings of current gender inequalities are "more complex and less susceptible to legal solutions." (24)
Just as many problems have grown more complicated, so, too, has litigation. Rare now are the contexts in which organizations like the American Civil Liberties Union (ACLU) or the Mexican American Legal Defense Fund can simply "find a judge and get an order," and "win cases on the papers." (25) Litigation is increasingly fact-sensitive, the facts are less clear cut, and the process is more expensive. Richard Rothschild of the Western Center on Law and Poverty put it bluntly: "There are fewer easy cases. Defendants are more sophisticated." And as noted below, courts are also more conservative, all of which has intensified pressure to find new resources and new strategies.
B. Goals
For many public interest organizations, the challenges are greater because so, too, are their aspirations. Groups like Human Rights Watch, which initially focused on political and civil rights, have broadened their agendas to include economic rights and protection for particularly vulnerable populations, such as children and gays and lesbians. (26) Disability rights groups that started with concerns mainly about physical access have taken up a wide range of issues including learning difficulties, veterans' benefits, and mental health. Mental health groups, for their part, have "raised the bar." (27) As Robert Bernstein, director of the Bazelon Center for Mental Health Law noted, the concerns are not simply conditions of confinement or abuse and neglect, but also "failures in the [entire] mental health delivery system." The goals now are to maximize individuals' "participation in the community," and to ensure "services that allow for a successful life." (28) That, in turn, requires not just minimally decent living conditions, but education, employment, and even a chance for a "date on a Saturday night." (29)
By contrast, other public interest legal organizations have felt pressure to scale down their aspirations. On many issues, the increasingly conservative orientation of the public, the judiciary, and the administration have forced some groups to redefine success. As Joan Graft, director of the Legal Aid Society of San Francisco's Employment Law Center put it, "now victory is not necessarily winning. It's not losing." For death penalty opponents, the initial goal had been to "put ourselves out of business," but over the last three decades, the death row population has tripled and the "demonization" of violent offenders has undermined chances for abolition of capital sentences. (30) In this, as in other surveys, progressive lawyers frequently saw their mission less as gaining new ground than as holding on to what they had. (31)
C. The Political and Judicial Climate
That narrowing of goals reflects what, to many public interest leaders, is the most significant change in public interest legal work over the last quarter century: the growing conservatism of the country and the courts. As research on social movements has long emphasized, a critical factor in promoting reform is the political opportunity structure. (32) And over the last quarter century, the climate for progressive legal strategies has grown less favorable. (33) About 70% of surveyed leaders identified this increasingly conservative orientation as one of the most significant changes or challenges in their field.
The impact, of course, varied among groups. Unsurprisingly, leaders of conservative organizations viewed the judiciary as becoming more "balanced" and more receptive to their concerns on issues like abortion, religious liberty, criminal justice, and property rights. (34) By contrast, most other leaders saw the courts as more "ideological" and less "open and responsive ... to the law and facts." (35) Organizations encountered increasing "roadblocks, procedurally and substantively." (36) Restrictive rulings on mootness and standing made it harder to obtain a hearing, and restrictive interpretations of statutory and constitutional protections made it harder to obtain relief. Doctrine had "gone south," particularly in contexts such as civil rights, civil liberties, welfare, capital defense, prison reform, consumer protection, and youth law. (37) According to Laurence Paradise, director of Disability Rights Advocates, 90% of claimants in employment cases would never get relief under prevailing approaches because they were "too disabled or not disabled enough." Steven Bright, former director of the Southern Center for Human Rights gave one of the bleakest descriptions. With few exceptions, courts in death penalty and prison fights cases "have gone from occasionally protective to actively resistant. They look for every possible reason to avoid ruling on substantive claims and then, if they reach the merits, to deny relief."
The problems have been compounded by restrictive interpretations of attorneys' fee statutes. Over the past fifteen years, federal and state court rulings have allowed denials or limitations on fees based on the monetary damages obtained rather than the work performed and have disallowed fees entirely where defendants settle before securing a final judgment. (38) The result of these rulings has been to erode a crucial source of financial support for legal representation. (39)
The move to the right in many legislative as well as judicial contexts has also altered the landscape of public interest law. Leaders noted the lack of "political will" to meet the needs of vulnerable groups, like children and individuals with mental disabilities. (40) Heads of civil rights, civil liberties, and gay and lesbian fights organizations were particularly frustrated by the failure of Congress to "stan[d] on principle" or, as ACLU President Anthony Romero put it, show some "spine" on key issues. (41) Even some prominent conservative leaders shared this view. As one put it, "Congress doesn't care about the Constitution." (42)
Poverty, immigration, and prisoners' rights organizations have been especially affected by legislative retrenchment. Congressional restrictions now prevent federally funded legal services programs from engaging in activities that are most likely to yield systemic changes, such as class actions, lobbying, community organizing, or participation in legislative and administrative rule-making proceedings. (43) These programs also may not represent particularly unpopular claimants, such as prisoners, undocumented individuals, and school desegregation plaintiffs. Nor may federally funded lawyers seek recovery of attorneys' fees even when otherwise authorized by statute. (44) As a consequence, poverty organizations have been forced either to forgo federal assistance or to accept conditions that undermine their effectiveness and leave poor individuals who are politically most vulnerable legally vulnerable as well. (45) Restrictions on prisoners' rights lawyers have had similar results. (46)
These legislative and judicial moves to the right are reflective of broader trends in popular opinion. On some social justice issues, leaders described a decline in the public's sense that problems are urgent or susceptible to legal solutions. (47) According to Mark Rothenberg, the Director of New York Lawyers for the Public Interest, many Americans "see civil fights as history, a struggle largely achieved." Similarly, leaders of women's rights groups like Equal Rights Advocates, Legal Momentum, the National Partnership for Women and Families, and the National Women's Law Center, all identified complacency as a major challenge. Women have a sense that "their basic needs have been addressed," and they generally fail to organize around the more subtle, structural aspects of discrimination. (48) On other issues, like immigration, affirmative action, and reproductive rights, conservative groups have reframed the debate in ways that place liberal public interest organizations in an increasingly defensive, reactive mode. More resources are consumed in policy and ballot initiative fights "just to prevent backsliding." (49) So too, 9/11 and the war on terrorism has dramatically redefined the agenda of civil liberties organizations in ways that are not of their choosing. In the words of Barbara Olshansky of the Center for Constitutional Rights, "Sisyphus doesn't begin to describe it." (50)
Yet the landscape is by no means uniformly bleak. In some fields, most notably environmental protection and gay and lesbian rights, public attitudes have grown significantly more supportive and major victories are possible in both state and federal courts. (51) Some organizations also experience what ACLU leaders term the "undertaker" effect: "When things are bad for others, they are good for us." (52) The curtailment of civil liberties following 9/11 led to a dramatic increase in ACLU membership. On other issues such as environmental protection and reproductive choice, adverse Supreme Court rulings or administration decisions can produce a surge in public support.
Conservative groups experience corresponding effects. As the head of the Mountain States Legal Foundation put it, a liberal administration is "good for [us], bad for the country." (53) When conservative groups experience success on their issues, "the public gets complacent." (54) If a Republican administration is in power, it is also harder for conservative organizations to hold a government agency's "feet to the fire" without offending their donor base. (55)
For most public interest legal organizations, however, the climate has grown more challenging over the last quarter century. That...
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