Old wine in new bottles: public interest lawyering in an era of privatization.

• Author: Trubek, Louise G.

INTRODUCTION

Both the theory and practice of public interest lawyering are in transition. Whereas the public interest lawyer of the 1960s and 1970s typically advocated before administrative agencies and courts on behalf of poor people and underrepresented groups, (1) the public interest lawyer of today assumes a much greater variety of roles and is involved in a broader array of tasks. One of the causes of this development is the privatization of government, which has been defined as an increased reliance on the private institutions of society to satisfy public needs. (2) The institutions involved in this shift are quite diverse, ranging from the marketplace and corporations, to charitable organizations and the family. (3) Although many have lauded privatization as a means of making government more efficient and responsive to community needs, the jury is still out on whether privatization in all its varied forms is a positive development from the standpoint of the disadvantaged and those who advocate on their behalf. (4)

A central concern is that a privatized government is less transparent and participatory than traditional governance, and therefore less accountable, both to the public as a whole and to the constituency receiving the services. (5) My own experience indicates that this concern is somewhat misdirected. As the founder and Executive Director of the Center for Public Representation, the oldest public interest law firm in Wisconsin, I have observed that public interest lawyers can work effectively within a privatized system on behalf of their constituencies. Doing so, however, requires reimagining the role of the public interest advocate and adopting new strategies to foster transparency and participation in the changed regulatory environment. In this essay, I will support this claim by providing examples from my own experience.

1. PUBLIC INTEREST LAWYERING BEFORE PRIVATIZATION

   Perhaps the best place to begin is with the practice of public interest law before privatization became widespread. (6) In 1973, I was a lawyer based in a Madison, Wisconsin, a graduate of the Yale Law School, familiar with the new theory and practice of public interest law. (7) With the dean of Wisconsin Law School, I decided to set up a Wisconsin-based version of the public interest law firms springing up in New York, Washington, and California. (8) The organization we created, the Center for Public Representation ("CPR"), has provided advocacy for the underrepresented on a variety of issues over the years, including environmental regulation, consumer protection, and gender discrimination. (9) As a nonprofit organization, we have received funding for our efforts from foundations, government agencies, law schools, lawyers, and bar associations. Currently, CPR speaks out for its constituencies through information dissemination, policy research, and advocacy, public workshops, and clinical programs in the areas of health care, telecommunications, and consumer protection. (10) Our focus consistently has been to advocate for our clients in the administrative process. (11)

   The original conceptualization of CPR reflected the broader theory of public interest law prevalent at the time. (12) As described in Balancing the Scales of Justice, the original theory underlying public interest practice relied on the existence of administrative agencies that embodied bureaucratic expertise and public commitment to state action. (13) Public interest practice was envisioned as asserting a voice for individuals and groups whose interests were ignored because of their inability to organize and obtain resources to counterbalance more powerful parties advocating before agencies. (14) Finding themselves in a position of relative weakness, public interest lawyers consistently criticized the agency system as being too hierarchical, unresponsive, and unbalanced. (15) This critique helped to undermine the public perception of government as the solution to all social problems, thereby contributing to privatization. (16)

   Inspired and influenced by this conceptual model, our goal at CPR was to advocate on behalf of underrepresented interests through participation in administrative agency processes at the state level. We envisioned our staff as a cadre of full-time lawyers dedicated to public interest practice. We firmly believed that our expertise as lawyers with substantive knowledge of the field would enable us to speak out effectively before agency decision-makers, and that our advocacy would counteract the resources and knowledge of the regulated industry, thereby "balancing the scales of justice." (17) The result, we hoped, would be a fairer process at the agency level and, perhaps, some substantive changes in the law as well. Over the years, our efforts have met with some success.

2. PUBLIC INTEREST LAWYERING AND PRIVATIZATION

   The privatization of public services dates to the early 1980s and the Reagan presidency. (18) This trend reached Wisconsin a few years later, in the mid-1980s. The processes of privatization affected CPR's practice because it overlapped with three areas on which we had chosen to focus our energies: health care, telecommunications, and antipoverty. The following is a brief description of privatization in Wisconsin and the manner in which we at CPR adapted our practices to serve our clients.

   1. Privatization in Wisconsin

      Wisconsin has been a leader in privatization, not only in the area of welfare reform, but also in health care and telecommunications. Health care was the first area the state reorganized, through a process called managed competition. (19) Under managed competition...