Public Interest Litigation: Insights from Theory and Practice

By Cummings, Scott L.; Rhode, Deborah L. | Fordham Urban Law Journal, June 2009 | Go to article overview

Public Interest Litigation: Insights from Theory and Practice


Cummings, Scott L., Rhode, Deborah L., Fordham Urban Law Journal


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. …

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