Public Interest Law Research Paper

Public interest law can be distinguished from legal services that focus on representing the personal legal needs of individual clients. The outcome of a public interest lawsuit is likely to reshape public policy or affect the interests of a substantial population. The class action device is sometimes used in such cases, although similar results can be had by representing an organization or, in appropriate cases, even by representation of a single individual on a matter where substantial issues of legal principle are involved. Moreover, a lawsuit in which a doctrinal innovation is made is likely to be followed by strategic efforts to elaborate, or expand, the new principles. For example, the principle that an involuntarily confined mental patient is entitled to receive adequate treatment, which has far-reaching consequences for mental health delivery systems, was established in the case of an individual mental patient (Rouse vs. Cameron).

Subsequently, the principle was developed in class actions in other jurisdictions, and expanded to cover mentally retarded people. The right to refuse treatment was explored in other settings. Legislative, budgetary, and administrative activities also were catalyzed by the judicial decisions.

During the last third of the twentieth century there were significant shifts in public policy in the USA in critical areas such as race relations, environmental protection, and womens rights. In each of these shifts in public policy, public interest lawyers played an important role in tandem with citizen organizing and political action. When legislatures and other agencies of government were closed to citizen advocates, courts were often available. Moreover, the courts frequently, through their decisions in public interest cases, precipitated action in administrative agencies, legislatures, and the executive branch, which would otherwise not have come about.

1. Antecedents

Although the name public interest law was not coined until 1969, its antecedents existed as a set of practices for much of the twentieth century. Historically, public interest law in the USA grew out of four movements, some of which were concerned with broad societal issues, others of which were more concerned with the individual’s access to basic legal representation.

The first of the precursors to modern public interest law is the decades-long campaign to redress racial discrimination and racist institutional structures. In this arena, the National Association for the Advancement of Colored People (NAACP) and its Legal Defense and Education Fund (LDEF) were the paradigm. The LDEF was established in the mid-1930s, and a brilliant group of civil rights lawyers led by Thurgood Marshall (later a Supreme Court Justice) devised a strategy to bring a succession of test cases through the federal courts to the Supreme Court that would gradually undermine the legal foundations for racial segregation. The sequence of cases led to the landmark decision in 1954 of Brown vs. Board of Education, which ended formal, legally mandated segregation in American public schools. In subsequent decades, a series of lawsuits followed to apply the principles of Brown in specific situations and to carry them forward into other areas where racial discrimination was practiced such as employment and housing.

The second pillar upon which public interest law rests is the movement for freedom of expression centered around the American Civil Liberties Union, which grew out of the National Civil Liberties Bureau’s defense of anti-war advocates during the World War I years. Third, modern-day consumer advocacy, which is central to much public interest law and is embodied in the various organizations founded by Ralph Nader, traces its lineage back to Supreme Court Justice Louis Brandeis and progressive-era antitrust legislation. Those years, at the start of the twentieth century, saw the emergence of the idea that the American government had a right, and often a duty, to regulate the marketplace and ameliorate some of the injustices thrown up by a laissez-faire economic structure. Brandeis developed the idea that a ‘private attorney general’ could go to court to enforce the law if government failed to act.

The last is the legal aid movement that began in the late nineteenth century in New York as a way of providing charity-based legal representation for people too poor to pay private attorneys. Legal aid expanded in the post World War I period in the wake of Reginald Heber Smith’s 1919 book Justice and the Poor. In the 1960s, as part of President Lyndon Johnson’s War on Poverty, a major federally funded legal services program supplemented legal aid. With the expansion of federal anti-poverty programs in the 1960s, many lawyers within legal services developed public interest law strategies and highly specialized knowledge, litigating on such issues as welfare policy, health care for the poor, and the availability of subsidized housing. They used class actions and other litigation strategies to achieve important policy shifts.

Since the 1960s, public interest law has broadened its scope to include such areas as environmental law, an area where public interest advocacy groups have been particularly successful in building a framework of effective judicial precedents, federal statutes, and regulations. There have also been public interest law efforts addressing gender-based and sexual preference-based discrimination, and legal work on behalf of prisoners. In the 1970s, public interest groups litigated suits that delayed the construction of the Trans-Alaska oil pipeline and forced re-design; this challenged, and eventually halted, the domestic use of the pesticide DDT; and that won stricter oversight of nuclear power plants. In the following decades, public interest law centers specializing in environmental issues have developed into large membership organizations with increasingly sophisticated technical expertise, and a range of coordinated strategies involving litigation, administrative advocacy, grassroots organizing, political advocacy, and public relations.

2. 1969: The ‘Public Interest Law Firm’

Sarat and Scheingold (1998) describe public interest law as using ‘legal skills to further a vision of the good society.’ Most legal work is, in theory, value-neutral, and the attorney representing a fee-paying client without regard to the merits of his claim. Public interest law is, at its core, a systematic effort to bring new voices into policy formulation, and to use the law to attain certain public policy objectives, such as the abolition of legally authorized segregation or the implementation of better environmental protection. Lawyers who accept lower levels of remuneration in exchange for having the freedom to pursue social goals and to represent only clients whose causes they believe have genuine merit practice it.

Most public interest lawyers in the USA work in non-profit public interest law firms, granted taxexempt status by the Internal Revenue Service on the condition that they are paid a salary by the firm instead of fees by their clients, that they take on cases broadly defined as having implications for the public good, and that their firm operates under a Board of Trustees. The firms’ efforts are supplemented by the work of lawyers in private firms who are willing to take on a limited number of pro-bono cases; and by law students who receive academic credit for their work in law school clinics.

The Internal Revenue Service’s recognition of the charitable status of public interest law firms has allowed foundations to channel money to these centers. Philanthropic organizations such as the Ford Foundation, the Rockefeller Brothers Fund and the Edna McConnell Clark Foundation donated millions of dollars to public interest law groups. Foundations were particularly important in providing seed money to the public interest movement in the 1970s. Subsequently, many of them became reluctant to fund public interest law activities, especially litigation, because of the controversy such activities engender. Nonetheless, many progressive foundations have continued to support regional organizations to provide funds for local and regional public interest law activities.

The first of the new generation of public interest law firms, and one representative of the genus, is the Center for Law and Social Policy (CLASP) established in 1969. It was founded by four attorneys (including the author) experienced in the distinctive legal culture of Washington, DC. They had backgrounds in corporate law practice and the executive and legislative branches of the federal government. They believed that the effective legal advocacy on behalf of corporations often subverted the mechanisms of government; that the process was impoverished by the absence of effective advocacy on behalf of citizen interests consumers, environmentalists, the poor, the victims of discrimination and others. They organized a bipartisan group of eminent bar leaders, led by Arthur Goldberg, a former Supreme Court Justice and cabinet member, to serve as a Board of Trustees for CLASP. Within a year, CLASP had won landmark victories in two major environmental lawsuits. Early CLASP clients included Ralph Nader, the Wilderness Society and the American Public Health Association.

The CLASP model inspired other public interest law firms, and over time, spun off public interest law groups which served other constituencies among them the Mental Health Law Project (renamed the David L. Bazelon Center for Law and Mental Health) and the National Womens Law Center. It also was a cofounder of the Project on Corporate Responsibility which pioneered in the use of stockholder initiatives to promote socially significant issues, such as environmental protection, consumer interests, and civil rights, and which sponsored Campaign GM in the early 1970s, an effort to elect a slate of independent directors to the Board of General Motors.

Historically, public interest law centers have focused on issues that can be broadly defined as progressive or liberal, acting as a counterbalancing force to corporate power and serving the needs of the poor and powerless. Public interest lawyers frequently provided a counterweight to corporate advocacy. As such, it was essential that they render top-flight legal services and that they be backed up by the specialized technical expertise that was vital in many complicated cases.

Progressive public interest law thrives on both publicity and broader citizen participation. Often litigation launched on behalf of individuals or groups by public interest lawyers is one element in broad campaigns involving political lobbying, sophisticated media campaigns, and sometimes direct action.

3. The Evolution Of Public Interest Law

In 1961, Rachel Carson’s book Silent Spring was published, putting environmental pollution firmly into American public consciousness. Five years later, Ralph Nader’s book Unsafe at Any Speed (1966) did the same for unsafe automobiles. Coming at a time of dramatic social change and political unrest, the two books helped create two new constituencies in American politics: the environmental and the consumer. In the following decades, both issues have joined civil rights, women’s rights, and poverty issues at the core of public interest law. When public interest lawyers brought these issues to the courts, they were framed in a way that required decision by judges and other policy makers.

The 1970s were a decade of growth for public interest law, and by 1975 there were more than 90 public interest law firms employing over 600 lawyers. But, although the number of progressive public interest law firms continued to increase in the 1980s, and to spread beyond their traditional bases of the Northeastern USA and California, they did so at a slower rate.

The political climate during the Reagan and Bush presidencies (1981–93) was hostile to many of the constituencies represented by such groups; and their administrations made a concerted effort to counter public interest law activity, through cutting the federal legal services program, limiting government grants to ‘advocacy’ organizations and appointing federal judges hostile to the interests represented by public interest lawyers.

That the public interest movement weathered these years as well as it did, and was able to enter a new period of growth in the 1990s, reflects the sophisticated fund-raising and publicity techniques it developed, as well as the institutionalization of this branch of law that had been regarded only a decade earlier as a somewhat marginal voice of conscience to the legal profession. Indeed, so successful have some Washington public interest firms become that critics argue that they have become policy ‘insiders’ and lost touch with the grassroots groups, which they originally set out to serve. As the courts have become less receptive to public interest litigation, public interest lawyers have turned more often to other forms to legislative advocacy, coalition building, initiatives and referenda, and public education. Litigation remains an important dimension of public interest law activity, but it is only one element in developing advocacy strategy.

3.1 The Different Forms Of Public Interest Law Practice

Although the main vehicle for public interest law is the nonprofit public interest law firm in which salaried lawyers are employed full-time to handle public interest cases, other forms also exist. Many public interest law firms, such as the Natural Resources Defense Council, have become membership organizations and rely heavily on dues. Some began as affiliates of existing membership organizations, such as the Sierra Club Legal Defense Fund (later spun off and renamed the Earth Justice Legal Defense Fund). Some, like the Institute for Public Representation at Georgetown Law Center, function as clinics in law schools. Some, like the Environmental Defense Fund, integrate scientists and other experts into their staff operations.

Some private lawyers have established public interest practices, without tax exemption, and rely on court-ordered attorney’s fee awards in successful cases. The private public interest law firm may also combine public interest law with traditional, financially more profitable cases on behalf of fee-paying clients. What is characteristic of the public interest law firm in its various permutations is the sense of social mission and the prominent role that lawyers play in establishing policy, even in areas where technical expertise is critically important.

Many large corporate firms encourage their lawyers to do a certain amount of ‘pro bono work,’ although conflict of interest considerations disqualify them from some kinds of cases. Some firms, such as Skadden, Arps in New York, have set up their own public interest fellowship program. The Skadden Fellowship Foundation has awarded 25 such fellowships each year since 1988 to newly graduating law students who are paid to work on public interest matters for a year in connection with a public interest law firm.

Federally funded legal service offices, although facing financial cuts and stringent restrictions on their advocacy strategies (e.g., no class actions), still sometimes, though increasingly rarely, litigate public interest cases.

3.2 New Forms Of Financial Support

Many law schools defer or cancel the tuition loans owed by graduates who choose public interest law as a career, and have also set up public interest legal foundations, which raise money among students and alumni to support public interest law work by recent graduates and student interns. The National Association of Public Interest Law, based in Washington, DC, awards student fellowships in the field, and over 120 law schools now belong to the Public Service Law Network (PSL Net), which steers students toward work in approximately 10,000 law-related public service organizations throughout the world. In the case of large membership-based groups such as the Environmental Defense Fund and the Natural Resources Defense Council money is also raised through membership dues. Government grants are sometimes awarded for specific projects. Some regulatory laws, such as the Clean Water Act, have built-in provisions that allow public interest law firms to be awarded fees in successful cases to be paid by the losing party.

3.3 The Divergent Politics

Traditionally, public interest law has promoted progressive causes and the rights of the powerless. But a parallel development has been the development of conservative public interest law firms with an entirely different, generally pro-business agenda. From the mid-1970s a number of aggressively conservative public interest legal centers have emerged in the USA. These law groups the Pacific Legal Foundation, the National Legal Center for the Public Interest, the National Chamber Litigation Group and others represent interests, such as timber companies, that they define as being under attack in a world of environmental protections. However, because of their link to affluent business interests through leadership and financing, it is by no means accepted that these groups meet the traditional criteria for public interest law. Other groups, which represent conservative social positions, such as opposition to abortion and affirmative action, are sometimes grouped with public interest law firms.

3.4 The Internationalization Of Public Interest Law

Although public interest law is most widely practiced in the USA, there has been a gradual expansion into other countries. Many groups, especially in the Third World, are funded by Western foundations and nongovernmental organizations. During the apartheid era in South Africa, Geoffrey Budlender toured the USA interviewing public interest lawyers on their strategies. Then, funded by the Carnegie and Ford Foundations, he returned to South Africa to participate in the founding of the Legal Resource Center (LRC). Although fighting in a system that had appropriated to itself emergency powers, the LRC litigated over the Pass Laws and issues such as internal banishment. In post-apartheid South Africa, several lawyers who practiced public interest law during the apartheid years have risen to positions of power: Arthur Chaskelson, for example, one-time chair of the LRC board is chief judge of the countrys constitutional court.

In Bangladesh, the Madaripur Legal Aid Association represents poor rural Bangladeshis. Likewise, in Nepal, the Women’s Legal Services Project works with abused women in a society that is overwhelmingly patriarchal. In India, lawyers from Action for Welfare and Awakening in Rural Environment (AWARE) have litigated against the oppression of lower caste bonded laborers in a culture still heavily influenced by the caste system.

Public interest law has also begun in Latin America; the Latin American Institute of Alternative Legal Services works with over 6,000 lawyers, paralegals and social workers throughout the continent, bringing to public attention issues such as environmental protection and the treatment of street children and indigenous peoples. In Eastern Europe, public interest law groups funded by financier George Soros’ Open Society Institute, the German Marshall Fund, the Ford Foundation and others, have worked to solidify freedom of expression, and to counteract racism against groups such as the Roma (Gypsies).

Public interest lawyers are also active in the UK. They have established a Law Centres movement, and worked on immigration issues, trying to halt deportations and to secure refugee status for more asylumseekers.

In recent years, one promising arena for public interest law has been on a transnational level: international human rights law and the attempts by labor unions to have labor protections introduced into treaties such as NAFTA and the WTO.

4. Summary

Public interest law is an assertion of a commitment within the justice system to fairness, open process, and diversity of viewpoints. It has significantly shaped public policy debates in the USA, even during the Reagan and Bush presidencies. Their administrations helped to make access to the courts a less significant tool for citizen organizations. In response to these developments, many public interest lawyers developed a range of alternate strategies; working more directly in the legislative and administrative processes; filing suits in state courts; and relying more heavily on citizen actions.

The turn of the federal courts in a conservative direction was matched by increasing sophistication and resources in the advocacy effort of large corporations. No longer content to rely on the skills of legal advocates to shape public policy, corporations drew more heavily on public relations professionals. They relied more heavily on political action committees and the financing of political candidates and campaigns, and on massive advertising campaigns to shape public opinion.

Despite these challenges, public interest law in the USA continued to thrive, affecting policy decisions, and providing a measure of balance in the legal system. There are many more law school graduates seeking public interest law work than there are jobs; and there are many situations in which effective public interest advocacy, were it available, would lead to better policy outcomes. The development of public interest law in other countries holds significant promise for fair processes and broader public participation in critical policy decisions ranging from environmental protection to the protection of racial minorities. Globalization creates new needs and opportunities for public interest lawyers to function in transnational settings.

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