Impact Litigation Research Articles

Engaging First-Year Law Students Through Pro Bono Collaborations in Legal Writing

This article recommends developing assignments for first-year legal writing courses through collaborations with legal services organizations. The article stems from and describes such ongoing projects at Seattle University School of Law, where several hundred first-year law students have worked on such projects so far. We have partnered with lawyers at organizations like the National Employment Law Project, the ACLU of Washington, and Northwest Justice Project, to come up with live issues that they would like to have researched, and they received the best student work product from each class. The partner organizations have used the students’ work in several ways, including bringing successful impact litigation, preparing amicus briefs, and lobbying for legislative changes. These projects have increased our students’ understanding of the importance of legal research and writing, have motivated our students to improve their work product, and have helped the students gain a different perspective than they often see within the first-year curriculum. The article contextualizes these projects within the traditional legal writing curriculum and the Carnegie Report’s recommendations that law schools join lawyering professionalism and legal analysis from the beginning of law school. The article also draws on research into student engagement, including the Law School Survey of Student Engagement. The article discusses the literature regarding somewhat similar collaboration between legal writing and clinical faculty within the law school; these projects are complementary, but they have fewer timing challenges, are less resource-intensive for the law school, and they provide an opportunity to connect the law school with lawyers from community partner organizations. Finally, the article offers some concrete practical solutions to potential challenges in implementing these projects, including making sure that core legal writing objectives are met through the projects and how to teach the projects effectively to first-year students.

Can We Trust Trustees? Proposals for Reducing Wrongful Foreclosures

Can We Trust Trustees? Proposals for Reducing Wrongful Foreclosures

Global Funder, Grassroots Litigator – Judicialization of the Environmental Movement in Thailand

This case study of a Thai “environmental lawyer” examines assumptions about legal institutions of developing societies made by the lawyer’s New York based funder. The funder provides support for anti-pollution litigation in developing societies, its lawyer and court-centered assumptions about accountability under law, while not unknown in the developing world, play a far less important role there. As the case study shows, the Thai lawyer is uniquely situated, pursuing goals that are not strictly environmental as that term is understood by advocates in the United States, and deploying the influence of law and courts in sophisticated ways that contrast with “playing for rules” in Western paradigms of impact litigation. The lawyer’s career and use of courts strategically on behalf of communities resisting encroaching development reinforce the understanding that legal evolution in the developing world is path-dependent, that is contingent on history, politics, and culture, rather than converging with legal archetypes of Western practice or ideology.

Seeking One's Day in Court: Chinese regime responsiveness to international legal norms on AIDS carriers' and pollution victims' rights

Over the last two decades, international actors have sought to diffuse repertoires of contentious practices, including rights-based litigation, to China. Multilateral organizations, foundations, and international non-governmental organizations (INGOs) have used funding and training programs conducted in China and at law schools abroad in order to raise the capacity of Chinese attorneys, NGOs, judges, and legal officials to improve rule of law and protection of human rights. In particular, international actors have worked with Chinese NGOs and state officials to found legal aid centers that provide information and advocacy to protect the rights of pollution victims and AIDS carriers. Legal aid centers, attorneys, and their financial backers seek to bring forward ‘impact litigation’ cases in the courts to establish model decisions for other plaintiffs, attorneys, and judges to follow. To date, environmental groups have enjoyed more success gaining access to the courts and in receiving favorable court judgments than have AIDS groups. In many cases involving AIDS victims, attorneys and legal aid centers seek compensation through alternative dispute resolution methods rather than litigation, which do not establish a legal precedent. This paper explores the reasons for the divergent outcomes of efforts to protect the rights of pollution victims and AIDS carriers in the courts. Primarily, the institutional particularities and contexts of the Ministry of Environmental Protection and the Ministry of Public Health have allowed international legal norms related to the environment to take deeper root than those related to AIDS.

Making an Impact: Labor's Litigation to Achieve Social and Economic Justice

The image that naturally comes to mind when one thinks of a labor union is that of a bargaining representative and an advocate for wronged union employees – an organization that fights to obtain better wages and working conditions for employees than they could negotiate on their own, and that represents employees in any grievances with their employer. For much of the twentieth century, that was an accurate depiction of labor unions, which were focused almost solely on unionizing unionized workplaces and on providing services to union members. Any political action employed by unions were focused on greater gains for employees in the workplace, and any litigation waged was focused on these same goals. However, unions have increasingly embraced the role of an advocate for workers generally, often partnering with other organizations and social movements, and have engaged in political activity to address social and economic concerns of broad constituencies – union members and non-members alike. Scholars have clearly described some forms of political action utilized by labor unions and their partners, documenting in detail union involvement in lobbying, voter registration drives, and political contributions. But thus far, scholars have largely failed to address the ways in which labor unions have used impact litigation as a tool for broad social change. From mass tort litigation, to election and voter registration challenges, to education financing scheme cases, unions have demonstrated their commitment to the American working class as a whole. Although some examples of such impact litigation arise out of workplace conditions – such as union involvement in asbestos litigation and repetitive stress injury product liability lawsuits – other examples of union impact litigation are seemingly unconnected to the workplace – such as challenges to immigration laws that seem to promote racial profiling and challenges to voter registration restrictions that disenfranchise working-class voters. This paper will examine the various conceptions of labor unions and discuss how union involvement in impact litigation demonstrates yet another way that unions behave as social actors invested in the betterment of the working class as a whole. The paper proceeds as follows: Part I will discuss the two primary conceptions of labor union – that simply of a business representative for union members, and that of an advocate for broad social change – and address how unions seem to have evolved from the first conception toward the second conception over the last thirty years. It will also discuss the tools used by unions with a broad self-conception of the role of labor movement in society, including alliances with other social movements and organizations, and political action tools already documented by scholars. Part II will explore in detail, as has never been done before, the labor movement’s involvement in impact litigation – cases that directly affect the workplace (such as wage and hour lawsuits), cases indirectly affecting the workplace (such as repetitive stress injury product liability actions), and cases that have seemingly no direct connection to the workplace (such as litigation challenging the constitutionality of same-sex marriage bans or state voter registration restrictions). Finally, Part III will discuss the significance of the labor movement’s involvement in impact litigation. It will describe what this political action tool says about the role, and it will discuss the benefits and concerns of labor’s use of impact litigation to achieve social change objectives.

Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s

In 1963, President Kennedy outlined a federal program designed to reduce by half the number of persons in custody in mental hospitals. What followed was the biggest deinstitutionalization this country has ever seen. The historical record is complex and the contributing factors are several, but one simple fact remains: This country has deinstitutionalized before. As we think about reducing mass incarceration today, it may be useful to recall some lessons from the past. After tracing the historical background, this essay explores three potential avenues to reduce mass incarceration: First, improving mental health treatment to inmates and exploring the increased use of medication, on a voluntary basis, as an alternative to incarceration; in a similar vein, increasing the use of GPS monitoring and other biometric monitoring, and moving toward the legalization of lesser controlled substances. Second, encouraging federal leadership to create funding incentives for diversionary programs that would give states a financial motive to move prisoners out of the penitentiary and into community-based programs. Third, encouraging impact litigation of prison overcrowding, as well as documentaries of prison life, as a way to influence the public perception of prisoners. With regard to each of these strategies, however, it is crucial to avoid the further racialization of the prison population and merely transferring prisoners to equally problematic institutions.

Art or Science? Synthesising Lessons from Public Interest Litigation and the Dangers of Legal Determinism

In 2008, one of the largest funders of human rights organisations in South Africa, the Atlantic Philanthropies, published a report that identified several factors for optimal public interest litigation. Despite the relative density of organisations that conduct public interest litigation in South Africa, there has been little critical engagement with its findings. Yet this exercise is pertinent given the growing reliance by South African civil society organisations on litigation to resolve systemic failures by the state, together with the ever more pressing requirement from donors to prove the strategic value of the turn (or return) to the courts. This article aims to contribute to the discussion about the uptake and value of public interest litigation by problematising the premises and recommendations of the Atlantic Philanthropies Report (APR). The report’s analysis is tested, partly through the lens of two recent cases concerning the disconnection of municipal services – Mazibuko (water) and Joseph (electricity) – revealing another type of disconnection: that the public impact litigation process is generally too unpredictable and diffuse for it to be adequately assessed through a formulaic or scientific approach. At the same time, it has more potential for social change than covered in the APR. The article therefore advances a more expansive, contextualised and responsive framework for conceptualising the role of public impact litigation and assessing its impact. The proposed framework takes into account structural conditions of power, agency in the form of social mobilisation and the role of public interest litigation in constituting ‘politics by other means’.1

Damned If You Do and Damned If You Don’t: Title VII and Public Employee Promotion Disparate Treatment and Disparate Impact Litigation

What has been the impact of the U.S. Supreme Court’s 2009 decision in Ricci v. Destefano on the selection and promotion practices of public employers?; Relying solely on circumstantial evidence, the Supreme Court held that the Civil Service Board of New Haven, Connecticut, had engaged in Title VII disparate treatment discrimination by refusing to certify the results of a promotion examination that led, in turn, to a disparate impact on African American firefighters. To limit the discretion of public employers to disregard such selection and promotion exam results, the Ricci majority held that a public employer must “have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to the take the race-conscious discriminatory action.” This article argues that the decision effectively prohibits public employers from rejecting the results of selection and promotion instruments, even though there is evidence that screening instruments inequitably affect protected groups. It also forces public employers to become more careful in developing selection and promotion examinations or face the possibility of costly Title VII litigation.

Distinguishing Reverse Discrimination from Overcorrection: Statistical Methods for Clarifying this Neglected Distinction and Why It Matters

This paper makes a distinction between what is often called reverse discrimination and a similar but non-identical entity which should be called overcorrection. We argue that the term reverse discrimination should be used only to describe cases where well-qualified non-minority applicants are unjustifiably denied desirable positions in organizations run by and/or staffed by minority employees; similarly, we argue that the term overcorrection should be used for circumstances where well-qualified non-minority applicants are unjustifiably denied desirable positions in organizations run by and/or staffed by non-minority employees who are actively instituting policies to expand the hiring and promotion of minorities. By this view, reverse discrimination and overcorrection constitute two components in a complete set of four conditions: discrimination, correction (or affirmative action), overcorrection, and reverse discrimination. We draw examples from Ricci v. DeStefano, and a simulation based on recent disparate impact litigation to show how tests of statistical significance can distinguish between reverse discrimination and overcorrection. The paper closes with a discussion of why the distinction is important - not because it would alter the final outcome of disparate impact cases, but because framing litigation as reverse discrimination arguably encourages plaintiffs to decline fair out-of-court settlements and pursue appeals that lack merit.

Three steps forward, two steps back: legal activism for women's rights in South Africa

abstract This profile considers the success of activism through impact litigation and advocacy to further women's rights in South Africa. It considers the role of amicus curiae as opposed to individual litigants in cases and focuses on cases of the Women's Legal Centre concerning discrimination in religious and customary law and domestic violence. The profile also identifies challenges in persuading courts to develop a contextual approach to litigation and to ensure that impact litigation is indeed effective.

Administrative Determinants of Civil Liability Lawsuits Against Municipal Police Departments: An Exploratory Analysis

Most contributions to the police civil liability literature have described trends in the incidence of suits, the outcomes of actual cases, or the impact litigation has on police departments. This article outlines a predictive model of administrative determinants of civil litigation against police. Specifically, it asks: Do police administrators influence trends in litigation? Data drawn from the 1993 Law Enforcement Management and Administrative Statistics survey and from a 1996 survey of 248 police departments suggest that interest in minority recruitment, method of civilian review, and commitment to community-oriented policing affect the incidence of suits. Potential problems with research in this area are discussed.

The Civil Rights Act of 1991 and Less Discriminatory Alternatives in Disparate Impact Litigation

The Civil Rights Act of 1991 and Less Discriminatory Alternatives in Disparate Impact Litigation

Continuity and Change: Patterns of Immigration Litigation in the Courts, 1979-1990

The authors explored contemporary immigration litigation in the courts. They sought to establish a profile of the immigration caseload; discern some of the effects of certain immigration policy reforms on that caseload; emphasize the growing importance of affirmative challenge litigation especially impact cases in the immigration area; and determine what occurs when federal courts remand immigration cases to the US Immigration and Naturalization Service (INS) and the administrative immigration court. Their study was meant to be descriptive not normative. Their exploration nonetheless led them to believe that aliens often prevail over the INS in asylum litigation and impact litigation. These results suggest that the government currently contests many meritorious claims by aliens which in the interest of all parties would best be resolved at an early pre-litigation stage. In particular aliens were successful in overturning administrative denials of asylum requests.