SSRN: Public Interest Litigation

"Public Interest Litigation: Insights from Theory and Practice" 

Fordham Urban Law Journal, Vol. XXXVI, 2009
UCLA School of Law Research Paper No. 09-19

SCOTT CUMMINGS, University of California, Los Angeles - School of Law
Email: [email protected]
DEBORAH RHODE, Stanford Law School
Email: [email protected]

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. This Article seeks to move beyond these critiques by situating 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. 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. 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.

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