Public interest litigation: insights from theory and practice.

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Public interest litigation: insights from theory and practice.

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 anal...

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