Impact Transaction: Lawyering for the Public Good Through Collective Impact Agreements

• Date: 01 August 2018

8-2018 NEWS & ANALYSIS 48 ELR 10681

ARTICLE

Impact Transaction: Lawyering

for the Public Good Through

Collective Impact Agreements

by Patience A. Crowder

Patience A. Crowder is an Associate Professor of Law at the University of Denver Sturm College of Law.

I. Introduction

“Impact transaction” is a term I coined to describe a strat-

egy of transactional advocacy in the public interest that,

like impact litigation, has the potential for ma king large-

scale social cha nge.1 Community leaders interested in large-

scale social cha nge are seeking innovative approaches by

which to eectuate change against the reality of shrunken

public sector resources, the limitations of judicial remedies,

and the political nature of public policy.

“Collective impact” is a relatively new ter minology

emerging out of the philanthropic community for describ-

ing structured colla boration among parties who are focused

on alleviating a par ticular social ill.2 Branded as “a way to

better utilize resources and identify eective practices,”3

a collective impact initiative (CII) intentionally recruits

actors from diverse industries and with diverse perspe ctives

to focus on a specic social ill.4 In many respects, collective

impact participants “agree to agree” over the course of an

ongoing relationship. is approach raises important ques-

tions about authority and responsibility, such as “[h]ow and

by whom are strategic goals determined? W ho gets to par-

1. I thank my University of Denver colleague and civil rights advocate, Prof.

Nantiya Ruan, who helped me coin this phrase through our discussions on

impact litigation, transactional work, and public interest law. I intend for

this Article to be the rst of several forthcoming articles that will: detail

specic contract law issues inherent in the collective impact process; pro-

pose a system for papering these initiatives by presenting a form term sheet

and collective impact agreement; explore ideas of corporate governance and

community participation in collective impact; and determine whether col-

lective impact can be scaled up as a tool in the regional equity movement.

2. See C I F., http://collectiveimpactforum.org [https://per-

ma.cc/D4HZ-XET9] (last visited Feb. 28, 2016).

3. K B, C I: H B O I-

 C W F A (2014), http://web.augsburg.

edu/sabo/CollectiveImpactBixby.pdf [https://perma.cc/9GWK-7ES7].

4. Id.

ticipate and what are the requirements for participation?

How are initiatives held accountable and by whom?”5

Collective impact is in early sta ges, and barriers to eec-

tiveness are emerging, such as the absence of a contrac-

tual framework. Typical CIIs are ma naged through the

strength of the part ies’ relationships, not through a written

agreement. is Article argues that critical questions such

as those asked above and the collective impact process are

best understood through a relational contract context—a

contract law theory that looks beyond the parties’ privity

to consider the intent and relationships among the par-

ties. More specically, this Art icle lays the groundwork for

impact transaction—large-scale social cha nge by agree-

ment—by building a framework for draft ing relational

contracts to enhance the likelihood of the sustainability of

CIIs and impact transaction strategies, generally.

II. Promoting Social Change Through

Impact Transaction

Impact litigation is the legal tool traditionally associated

with public interest or social change lawyering.6 Impact

litigation is a familia r term: judicial adjudication of cases

that have the potential to impact conditions broadly for

many similarly situated people or to highlight a particu-

lar issue. Impact litigation works to reform institutions,

including both public governmental agencies, such as

those agencies involved with education or environmental

protection, and private entities, such as corporate employ-

ers.7 Impact litigation protects the interests of individuals

in the suit while hoping those actions eventually adva nce

the public good. But as with all litigation, private adjudica-

5. Id.

6. A C  S C, P I L 201 (Wolt-

ers Kluwer 2012).

7. See, e.g., Lori Turner, Using Impact Litigation as a Tool for Social Change:

Jimmy Doe: A Case Study, H. C.R.-C.L. L. R. (Aug. 10, 2010), http://

harvardcrcl.org/using-impact-litigation-as-a-tool-for-social-change-jimmy-

doe-a-case-study-by-lori-turner [https://perma.cc/5F9W-CB65].

is Article is adapted from Patience Crowder, Impact

Transaction: Lawyering for the Public Good rough Collective

Impact Agreements, 49 I. L. R. 621 (2016), and is reprinted

with permission.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.