Strategic litigation

Last updated
The first page of the U.S. Supreme Court judgement in Brown v. Board of Education, the "mother of all impact litigation". Judgment, Brown v. Board of Education, 05311955.gif
The first page of the U.S. Supreme Court judgement in Brown v. Board of Education , the "mother of all impact litigation".

Strategic litigation, also known as impact litigation, is the practice of bringing lawsuits intended to affect societal change. [2] [3] Impact litigation cases may be class action lawsuits or individual claims with broader significance, [1] and may rely on statutory law arguments or on constitutional claims. [4] Such litigation has been widely and successfully used to influence public policy, especially by left-leaning groups, and often attracts significant media attention. [2] One prominent instance of this practice is Brown v. Board of Education . [1]

Contents

History

In the late nineteenth and early twentieth centuries, the American Civil Liberties Union and National Association for the Advancement of Colored People (at times through its Legal Defense Fund) both pursued legal action to advance and protect civil rights in the United States. The ACLU followed a primarily "defensive" strategy, fighting individual violations of rights when they were identified. The NAACP, in contrast, developed a more coordinated plan to actively file suits to challenge discrimination, known as "affirmative" or "strategic" litigation. [5] The NAACP's model became the pattern for "impact litigation" strategies, which applied similar tactics in contexts other than racial discrimination. [4]

Important early impact litigation cases included Brown v. Board of Education and Roe v. Wade . [1] Brown, a 1954 U.S. school desegregation decision, was carefully prepared by Thurgood Marshall and other NAACP lawyers so that the eventual Supreme Court ruling invalidated official racial discrimination throughout the U.S. government. Many cases since then have closely imitated it, in the course of seeking greater protections for other disadvantaged groups. [1]

Scope

Impact litigation has played a major role in the development of American desegregation, women's rights, [6] abortion, tobacco regulation policy [7] and gay marriage.

Since the 1980s, impact litigation has been used to seek the reform of U.S. child welfare law, following earlier work which involved the courts in jail and mental hospital reforms, and in school desegregation. [8]

Strategic impact litigation, among other things, has also been used in Nigeria to push for convictions of perpetrators of police brutality and to defeat legal attacks on the freedom of the press. [3]

In a few jurisdictions where attorneys are prohibited from bringing class action lawsuits, citizens have filed "grassroots impact litigation" cases and successfully represented their own claims. [9]

Debate

Impact litigation has been criticized by legal scholars and politicians on the basis of judicial legitimacy and competence.

The legitimacy argument holds that, in countries with a constitutional separation of powers, societal changes are to be enacted by democratically elected bodies and are outside the purview of individual judges. The competence argument claims that institutional limitations on the amount and quality of information that can be made available in a court proceeding make the courts poorly prepared to handle complex policy issues. Another version of this argument points out that courts are limited in the scope of their responses, relative to legislative bodies. [10] These debates overlap with those concerning so-called "judicial activism". [8]

Lawyer-client relationship

Civil rights and poverty litigation has been critiqued for decades due to lawyers assuming too much control in their relationships with clients. The unconscious biases lawyers may hold toward poor, unemployed clients, can cause lawyers to feel the need to make more decisions for their client. [11] While it is lawyers’ responsibility to empower clients to make their own decisions and train their clients to understand and handle their own problems, lawyers in legal aid, law school clinics, advocacy, and small civil rights firms have been found to play a significant role in making decisions. At times lawyers have made decisions without the client’s input. Not maintaining an equal decision-making process reinforces negative stereotypes of low-income individuals and leave clients feeling politically powerless.

While large organizations practicing impact litigation do not have to worry about the costs of promoting client autonomy, they have been criticized for pushing their own political agendas. The Model Rules of Professional Conduct and Model Code of Professional Responsibility “require loyalty to clients’ goals and prohibit lawyers from allowing other interests, including their own, to interfere with their duties to clients.” [11] Manipulating clients to further personal political agendas is a highly unethical practice in civil rights and poverty law, and has been strongly voiced by critics on the right. [11] This practice comes into play especially in large class action lawsuits when immobilized groups have compounding interests and it is up to lawyers to make final decisions. In order to ensure lawyers are allowing clients to participate equally in the decision making process, lawyers must work to better inform their clients. Having informed clients that can advocate for themselves will allow lawyers to effectively represent the current wishes of individual clients and class members rather than their own perceptions of clients’ long-term goals. [11]

Can impact litigation alone effect societal change?

In order to bring about significant social reform, lawyers have paired impact litigation with other multidimensional strategies. These strategies include lobbying for regulations and legislation, speaking to the press, building coalitions, organizing grass-roots campaigns, educating clients, influencing government officials, and working with other interest groups. [12] Lobbying state and local governments for policy reform that helps organizations' client base is often a top priority for public interest law organizations. Policy changes can have positive effects on the larger community organizations are serving and assist clients in coming out of poverty. Education also plays a significant role in informing both influential people and affected communities about the injustices faced by marginalized groups. [12] Mobilizing communities at a local, regional, and national level brings power to marginalized communities and helps them be seen and listened to. [13] The American Civil Liberties Union and NAACP are pioneer organizations that recognized the political dimension of lawyering early on, which has led other law firms focused on impact litigation to follow in their footsteps and incorporate educational outreach, mobilization, and policy influence into their strategy. [14]

Examples

See also

Related Research Articles

<span class="mw-page-title-main">Thurgood Marshall</span> US Supreme Court justice from 1967 to 1991

Thoroughgood "Thurgood" Marshall was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-American justice. Prior to his judicial service, he was an attorney who fought for civil rights, leading the NAACP Legal Defense and Educational Fund. Marshall was a prominent figure in the movement to end racial segregation in American public schools. He won 29 of the 32 civil rights cases he argued before the Supreme Court, culminating in the Court's landmark 1954 decision in Brown v. Board of Education, which rejected the separate but equal doctrine and held segregation in public education to be unconstitutional. President Lyndon B. Johnson appointed Marshall to the Supreme Court in 1967. A staunch liberal, he frequently dissented as the Court became increasingly conservative.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was a landmark decision of the U.S. Supreme Court ruling that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the segregated schools are otherwise equal in quality. The decision partially overruled the Court's 1896 decision Plessy v. Ferguson, which had held that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, a doctrine that had come to be known as "separate but equal". The Court's unanimous decision in Brown, and its related cases, paved the way for integration and was a major victory of the civil rights movement, and a model for many future impact litigation cases.

A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the plaintiff, and the Court may impose the legal and/or equitable remedies available against the defendant (respondent). A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

<span class="mw-page-title-main">NAACP Legal Defense and Educational Fund</span> Organization in New York, United States

The NAACP Legal Defense and Educational Fund, Inc. is an American civil rights organization and law firm based in New York City.

<span class="mw-page-title-main">Robert L. Carter</span> American judge (1917–2012)

Robert Lee Carter was an American lawyer, civil rights activist and a United States district judge of the United States District Court for the Southern District of New York.

<span class="mw-page-title-main">Oliver Hill (attorney)</span> American lawyer (1907–2007)

Oliver White Hill Sr. was an American civil rights attorney from Richmond, Virginia. His work against racial discrimination helped end the doctrine of "separate but equal." He also helped win landmark legal decisions involving equality in pay for black teachers, access to school buses, voting rights, jury selection, and employment protection. He retired in 1998 after practicing law for almost 60 years. Among his numerous awards was the Presidential Medal of Freedom, which U.S. President Bill Clinton awarded him in 1999.

The Lawyers' Committee for Civil Rights Under Law, or simply the Lawyers' Committee, is an American civil rights organization founded in 1963 at the request of President John F. Kennedy.

Trial advocacy is the branch of knowledge concerned with making attorneys and other advocates more effective in trial proceedings. Trial advocacy is an essential trade skill for litigators and is taught in law schools and continuing legal education programs. It may also be taught in primary, secondary, and undergraduate schools, usually as a mock trial elective.

Litigation public relations, also known as litigation communications, is the management of the communication process during the course of any legal dispute or adjudicatory processing so as to affect the outcome or its impact on the client's overall reputation. The aims of litigation PR differ from general PR in that they are tied to supporting a legal dispute rather than general profile raising. Accordingly, there is a greater focus on the legal implications of any communications given the strategic aims and sensitive rules around disclosure during court proceedings. The New York Times reports that sophisticated litigation public relations efforts have included "round-the-clock crisis P.R. response, efforts to shape internet search results, and a website with international reports and legal filings" intended to support one side of the case. According to the international legal directory Chambers & Partners, as a result of the internet and social media, response must be faster and more strategic, since "the reputational consequences of each legal move are magnified and amplified far beyond the courtroom walls. Planning, preparation and rapid response are all critical elements to ensure a litigation communications program that effectively supports high-profile, high-stakes legal matters."

Legal aid in the United States is the provision of assistance to people who are unable to afford legal representation and access to the court system in the United States. In the US, legal aid provisions are different for criminal law and civil law. Criminal legal aid with legal representation is guaranteed to defendants under criminal prosecution who cannot afford to hire an attorney. Civil legal aid is not guaranteed under federal law, but is provided by a variety of public interest law firms and community legal clinics for free or at reduced cost. Other forms of civil legal aid are available through federally-funded legal services, pro bono lawyers, and private volunteers.

<span class="mw-page-title-main">Samuel Wilbert Tucker</span> American lawyer and civil rights activist (1913–1990)

Samuel Wilbert Tucker was an American lawyer and a cooperating attorney with the National Association for the Advancement of Colored People (NAACP). His civil rights career began as he organized a 1939 sit-in at the then-segregated Alexandria, Virginia public library. A partner in the Richmond, Virginia, firm of Hill, Tucker and Marsh, Tucker argued and won several civil rights cases before the Supreme Court of the United States, including Green v. County School Board of New Kent County which, according to The Encyclopedia of Civil Rights In America, "did more to advance school integration than any other Supreme Court decision since Brown."

Cesar Augusto Perales is an American attorney, civil servant and was the previous Secretary of State of New York in the Cabinet of Governor Andrew Cuomo. Perales was appointed by Cuomo on March 31, 2011, and unanimously confirmed by the New York State Senate on June 7.

<span class="mw-page-title-main">NAACP</span> Civil rights organization in the United States

The National Association for the Advancement of Colored People (NAACP) is an American civil rights organization formed in 1909 as an interracial endeavor to advance justice for African Americans by a group including W. E. B. Du Bois, Mary White Ovington, Moorfield Storey, Ida B. Wells, Lillian Wald, and Henry Moskowitz. Over the years, leaders of the organization have included Thurgood Marshall and Roy Wilkins.

<span class="mw-page-title-main">William Robert Ming</span> American lawyer and activist (1911–1973)

William Robert Ming Jr. was an American lawyer, attorney with the National Association for the Advancement of Colored People (NAACP) and law professor at University of Chicago Law School and Howard University School of Law. He presided over the Freeman Field mutiny courts-martial involving the Tuskegee Airmen. He is best remembered for being a member of the Brown v. Board of Education litigation team and for working on a number of the important cases leading to Brown, the decision in which the United States Supreme Court ruled de jure racial segregation a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

NAACP v. Button, 371 U.S. 415 (1963), is a ruling by the Supreme Court of the United States which held that the reservation of jurisdiction by a federal district court did not bar the U.S. Supreme Court from reviewing a state court's ruling, and also overturned certain laws enacted by the state of Virginia in 1956 as part of the Stanley Plan and massive resistance, as violating the First and Fourteenth Amendments to the United States Constitution. The statutes struck down by the Supreme Court had expanded the definitions of the traditional common law crimes of champerty and maintenance, as well as barratry, and had been targeted at the NAACP and its civil rights litigation.

A cause lawyer, also known as a public interest lawyer or social lawyer, is a lawyer dedicated to the usage of law for the promotion of social change to address a cause. Cause lawyering is commonly described as a practice of "lawyering for the good" or using law to empower members of the weaker layers of society. It may or may not be performed pro bono. Cause lawyering is frequently practiced by individual lawyers or lawyers employed by associations that aim to supply a public service to complement state-provided legal aid.

Public interest law refers to legal practices undertaken to help poor, marginalized, or under-represented people, or to effect change in social policies in the public interest, on 'not for profit' terms, often in the fields of civil rights, civil liberties, religious liberty, human rights, women's rights, consumer rights, environmental protection, and so on.

Litigation strategy is the process by which counsel for one party to a lawsuit intends to integrate their actions with anticipated events and reactions to achieve the overarching goal of the litigation. The strategic goal may be the verdict, or the damages or sentence awarded in the case. Alternatively, in the case of impact litigation the goal may be more far-reaching, such as setting legal precedent, affecting consumer-safety standards, or reshaping the public's perception of a societal issue. Broader goals and more challenging cases require a strategist with a greater understanding of, and facility with, the tools of litigation strategy.

<span class="mw-page-title-main">Public Interest Law Center</span>

The Public Interest Law Center, founded in 1969, is a nonprofit law firm based in Philadelphia. The Public Interest Law Center works primarily in the greater Philadelphia region occasionally taking on issues on a national scale.

Edward V. Sparer was an attorney known as the "father of welfare law." He was a prominent legal scholar, founded the organizations now known as Mobilization for Justice and the National Center for Law and Economic Justice, and was the strategist behind the landmark U.S. Supreme Court case Goldberg v. Kelly.

References

  1. 1 2 3 4 5 Schuck 2006, p. 104.
  2. 1 2 Schuck 2006, p. 103.
  3. 1 2 Okafor 2006, p. 81.
  4. 1 2 Tushnet 2008, p. 383.
  5. ↑ Tushnet 2008, p. 380.
  6. ↑ Reventlow, Nani (29 November 2017). "Litigation as an instrument for social change – laying the foundations for DFF's litigation support". Digital Freedom Fund.
  7. ↑ Mason, Leavitt & Chaffee 2013, p. 547.
  8. 1 2 Lowry 1986, p. 260.
  9. ↑ Freeman & Farris 1991.
  10. ↑ Schuck 2006, pp. 107–111.
  11. 1 2 3 4 Southworth, Ann (Summer 1996). "Lawyer-Client Decision". Georgetown Journal of Legal Ethics. 9: 1101–1156 – via HeinOnline.
  12. 1 2 Southworth, Ann (Spring 1999). "Lawyers and the Myth of Rights in Civil Rights and Poverty Practice". Boston University Public Interest Law Journal. 8: 469–520 – via HeinOnline.
  13. ↑ Freeman, Alexi Nunn; Freeman, Jim (Fall 2016). "It's about Power, Not Policy: Movement Lawyering for Large-Scale Social Change". Clinical Law Review. 23: 147–166 – via HeinOnline.
  14. ↑ Nahimas, David (August 2018). "The Changemaker Lawyer: Innovating the Legal Profession for Social Change". California Law Review. 106: 1335–1378 – via HeinOnline.
  15. ↑ Guerrero, Marion (2018). Lawyering for LGBT rights in Europe : the emancipatory potential of strategic litigation at the CJEU and the ECtHR (PhD thesis). European University Institute.
  16. ↑ Irfan, Umair (22 February 2019). "Pay attention to the growing wave of climate change lawsuits". Vox. Retrieved 26 September 2021.

Sources

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.