Participatory Litigation: A New Framework for Impact Lawyering.

• Author: Lobel, Jules

Table of Contents Introduction I. Lessons from the Past: The Critique of Class-Action Impact Litigation A. The Critique of Liberal Legalism B. Movement Lawyering C. Participatory Antecedents of the Pelican Bay Litigation II. A Participatory Class Action: Challenging Prolonged Solitary Confinement in California A. The California Prison Hunger Strikes of 2011: Launching a Movement B. Choosing Clients and Framing Claims 1. Choosing named plaintiffs 2. Deciding on claims C. Amplifying Plaintiffs' Voices D. The Plaintiffs Take the Lead: Supporting the Prisoner Hunger Strike During Litigation E. Legal Strategy and Tactics: Participation at Work F. Settlement Negotiations: Empowering the Collective G. Participatory Enforcement and Monitoring III. Class Action, Impact Litigation, and Participatory Democracy A. Theories of Political and Class-Action Representation B. Were the Pelican Bay Plaintiffs Anomalous? C. Participation and Successful Class-Action Impact Litigation D. Overcoming the Hierarchy of Expertise Conclusion: Accompaniment Introduction

Imagine being confined in an eight-by-ten-foot windowless cell for twenty-two hours a day. Phone calls and contact visits with family and friends are prohibited. You only leave for approximately one and a half hours a day for recreation alone in an empty area somewhat larger than your cell, containing twenty-foot-high walls and a partial grate roof with little direct sunlight. You communicate with surrounding prisoners in a disembodied manner by shouting through your cell walls. There are no educational or vocational programs, and you have not seen trees, birds, or grass, nor meaningfully touched another human, for years. (1)

By 2011, more than 1,000 men at California's Pelican Bay State Prison Security Housing Unit (SHU) had spent years in this condition. At the time, approximately 500 prisoners had been in solitary confinement for more than ten years, with seventy-eight prisoners there for over two decades. (2) Prison officials had not placed these prisoners in solitary confinement because of serious misconduct in prison or because of the heinousness of their criminal offenses. Instead, officials placed the prisoners in solitary confinement based on alleged association with a prison gang. Being an alleged gang member was not even necessary: Anyone labeled an "associate," defined as someone who is periodically involved with gang members, could be put in the SHU. (3) Tattoos, artwork, and letters sufficed for SHU placement. (4) Prison officials reviewed placement decisions only once every six years, (5) and virtually all prisoners so reviewed were perfunctorily retained in solitary. (6) The only way out of the SHU was release from prison, becoming an informant, or death; in the vernacular, to "parole, snitch, or die." (7) Prisoners serving a life sentence were thus condemned to die in solitary unless they agreed to become informants, putting themselves and their families in danger of retribution in the process. (8)

Despite the formidable obstacles to organizing in these conditions, thousands of California prisoners went on hunger strike in July 2011 to protest the state of solitary confinement. (9) The strike, led by SHU prisoners, garnered national and international attention. (10) Although state officials claimed that the strike was gang inspired and led, (11) a top official eventually met with four strike leaders and agreed to minor reforms, including allowing prisoners to send one picture of themselves home per year and providing a pull-up bar for exercise in the recreation area. (12) The official also promised to consider procedural reforms regarding SHU placement and retention. (13) As a result, the prisoners ended the strike. (14) Despite the prisoner hunger strikes placing the national spotlight on California's draconian prison policies, they achieved only minimal success. (15) Todd Ashker, one of the four leaders of the strike, wrote to the Center for Constitutional Rights (CCR) asking us to file a class-action lawsuit challenging California's use of indeterminate solitary confinement. (16) We agreed to do so. The CCR took the prisoners' case because the prisoners represented a powerful grassroots movement challenging a torturous policy of prolonged solitary confinement. Moreover, the prisoners' struggle had national implications: At the time, reports indicated that approximately 80,000 prisoners in the United States were in solitary confinement. (17)

The CCR's representation of these prisoners is an example of "movement lawyering," in which attorneys represent sociopolitical movements using a multifaceted strategy that treats impact litigation as just one aspect of a broader activist campaign. (18) Unlike most of the impact litigation described in academic literature or practiced by progressive and class-action litigators, (19) however, the Pelican Bay attorneys actively involved the plaintiffs in all aspects of the suit: choosing class representatives, deciding on claims to present, making important tactical decisions, negotiating and ratifying a settlement agreement, and monitoring the settlement decree. The prisoners' activism, as well as their legal and practical knowledge gained from years of challenging solitary confinement, called for litigating this class-action suit in a different manner than the typical impact-lawyering approach. I term the resulting framework participatory litigation to denote that one central aim of the case was empowering the plaintiffs to play an important role in directing the litigation itself.

Participatory litigation challenges the practices and ethical understandings of class-action and impact litigators. It involves litigators providing plaintiffs with an authentic, nonmediated voice in presenting their claims to defendants, judges, and the public. Movement activists work closely with participatory lawyers in deciding on the named plaintiffs and the legal claims they raise. In contrast to the traditional attorney-client relationship, participatory litigation involves class members and named plaintiffs in tactical and strategic legal decisionmaking. Most importantly, participatory class-action litigation encourages collective, communal decisionmaking on matters such as settlement negotiations and ratification while also providing a role for plaintiffs in collectively monitoring compliance.

Participatory litigation has three main elements that require a reorientation of traditional class-action and impact lawyering seeking structural change. The first element involves transforming the lawyer-client relationship by incorporating insights from rebellious, (20) collaborative, (21) client-centered, (22) and democratic (23) lawyering into impact, test-case, and class-action litigation. Even in complex litigation, lawyers and clients should have an equal dialogic relationship, with each bringing skills and insights to their mutual struggle. Probably the best description of this lawyering model is what Lucie White termed a "third-dimensional practice of law," derived from Paulo Freire's work and feminist understandings of "consciousness raising," which posits the attorney with professional skills engaging in a "mutual learning practice" with oppressed communities. (24) An important aspect of creating a more egalitarian society is breaking down the hierarchy of expertise, in which the skills of professionals such as lawyers dominate and deny the expertise of the people those professionals seek to aid. Impact litigators can bring invaluable expertise in strategy, tactics, and legal theory to a lawsuit, but achieving long-lasting structural change and utilizing the litigation to further the goal of transforming society requires that the lawyers learn from and accept the expertise of their clients. Those clients, class members, and movement leaders may have insights and expertise gleaned from their understanding of the oppression they experience that class-action litigators all too often ignore. The lawyers who introduced me to participatory litigation, which they termed "accompaniment," described it as "two experts... exploring the way forward together." (25)

Second, by actively involving clients in the litigation, participatory litigation centers clients' voices. While impact litigation has resulted in many sweeping changes, it "is rarely designed to give voice to the clients' own perceptions of their needs." (26) Accordingly, impact litigators often make little or no effort to involve their clients in the litigation process. (27) In class-action lawsuits, plaintiffs are often excluded from any role, with courts even allowing lawyers to settle claims despite the opposition of most named plaintiffs or class members. (28) Indeed, an underlying question pervading class-action doctrine is how to make lawyers accountable to the class they purport to represent, especially when lawyers litigate or settle the case based on their own interests and views of what is best without consulting with or adequately representing the class. (29) A participatory framework seeks to radically alter that dynamic and use the class action to empower clients through their active, collective participation in the lawsuit.

Finally, participatory litigation attempts to integrate substantive legal reforms with democratic changes to challenged institutions. This difficult-to-achieve goal differs from due process, thought of as an individual's right to be heard, (30) because its focus is on group rights. Participatory litigation furthers participatory democracy by demanding a communal or collective right to participate in institutional decisionmaking. (31) As some have noted, such demands in public-law litigation promote an "empowered democracy" by fostering the "citizen's interest in breaking open the large-scale organizations or the extended areas of social practice" that "sustain insulated hierarchies of power and advantage." (32)

The demand for...