Public interest law: the movement at midlife.

• Author: Rhode, Deborah L.

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.

1. 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.

   1. 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...