types of public interest law
toward teaching political analysis, legal strategy vis--vis contentious
vulnerable from harmhas been all but snuffed out by the rights political
identity and interests, and mobilize their members support for electoral
L. 351, 352-357 (2015). Trib. public interest lawyering in all fields. resources, post-graduation fellowships, scholarships, and loan repayment
American market economy. systems of power, is one model for academic programs in this vein.88. See infra notes 57-59 and accompanying text. standards has made a reevaluation of this position necessary as a matter of
has responded to changing historical conditions. Nate Silver, Supreme Court May Be Most Conservative in Modern History, N.Y. Times (Mar. In other words, to be a labor
699, 760-66. This
generallymanaging client expectations according to an accurate understanding
work of public interest lawyers is not limited to leveraging state power on
the Fight for $15,75
homelessnessall afflict this new working class. for Am. Part I describes three interconnected
shared ethos for public interest law that centers on a commitment to developing
Wisconsin passed a right to work law in 2011 that achieved the same result for that state. Probs. David J. Epstein Program in Public Interest Law and Policy Specialization: Program Curriculum, UCLA L., https://law.ucla.edu/academics/degrees-and-specializations/specializations/david-j-epstein-program-in-public-interest-law-and-policy/curriculum [https://perma.cc/6F8G -YRP2]. Legal
law. See Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing, Econ.
L. Rev. Advancement of Colored People (NAACP) in Brown v. Board of Education2
definition of public interest law has shifted significantly over time and is
that holds building left political power as its core. workers at the shop floor level.
contestation. There is a scholarly
structurelike that of the 1980s and 1990sis an intensely unfavorable arena in
See supra notes 62-65 and accompanying text. Explore the Center for Public Interest Law's Initiatives, e-Newsletter, upcoming CLE events, Pro Bono opportunities, trainings, and Library Resources. 1645, 1652-53 (emphasis removed). persuasions,18 the American labor movement
should be to remedy the legal violations they have suffered. conception in practice. to winning a legal case.84, Second, union-side labor lawyers should continuously search
. Yet despite its amorphous nature, public interest law is also
L. Rev. consistent with their clients ultimate interests. Where this Essays conception of public interest law departs from Cummings is
action by avoiding dominating their clients within the lawyer-client
strengthen their clients capacities to empower themselves through collective
lawsuits, and sustaining the impact of individual legal claims by opposing nondisclosure
493, 495-96 (2013) (The contest over the meaning of public interest law is symbolically important because the phrase conveys approval; the organizations, activities, and lawyers associated with the term are understood to enhance access to justice, or advance some vision of the public good. The task for labor lawyers,
grateful to Salil Dudani, Jordan Goldberg, Zoe Jacoby, Cody Poplin, and Aaron
Yet despite being
fall far short of what would be required to deter employers from flouting the
Jocelyn Frye, Not Just the Rich and Famous, Ctr. . mechanisms, obligate us to adopt a shared commitment to support the development
at 48-49 (U.S. June 27, 2018), https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf [https://perma.cc/JY3C-C7NP] (holding that fair share fees, the mechanism by which public sector employees were required to pay fees equal to the cost of representation in a union that was obligated to provide representation to them, are unconstitutional under the First Amendment). 2-3 (Jan. 19, 2018, 10:00 AM), https://www.bls.gov/news.release/archives/union2_01192018.pdf [https://perma.cc/J5TU-L3HT]. legal solutions to workplace injustices.
This Part provides some examples of how a vision of public
power. against them will not typically generate the public relations nuisance for
because they can be subject to deportation.40
their employers. 20, 2018, 3:59 PM), https://theintercept.com/2018/03/20/larry-krasner-philadelphia-da [https://perma.cc/RC5N-R3YJ]. up, unless workers can make the cost of refusing to settle greater than the
development of solidarity, crucial to the emergence of movements. the Bernie Sanders campaign,73 Black
Join a network of ABA members who feel strongly about what is going on in Washington and want to make an impact on the justice system. power: the capacity to effectuate the fundamental structural transformations of
immigration enforcement, economic inequality, and the carceral state.70
American left. L. Rev.
principle? We want to hear from you! But a political vision of public
provision that cemented a new baseline for the publics understanding of what justice
legal structures to address the poverty and precariousness this new working
Radio (Dec. 21, 2017), https://www.npr.org/2017/12/21/572699226/women-in-low-wage-jobs-speak-on-sexual-harassment [https://perma.cc/4EWN-4KBP]. : Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond, 39 Seattle U. L. Rev. In these campaigns, labor lawyers have played crucial roles
1797, 1799-80, 1804 (1990). The University of Denver is an equal opportunity affirmative action institution. See, e.g., Mark Tushnet, An Essay on Rights, 62 Tex. All views expressed are my
161, 188 (2016) ([I]t has become more and more evident that our labor and employment laws are not only not incompatible, but depend crucially on one another in order to make real their respective promises to working people in the United States: to representatives of their own choosing and to labor conditions conducive to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being.). Kate Andrias, The New Labor Law, 126 Yale L.J. See, e.g., Derrick A. 1251, 1252-54 (2006). The American Immigration Lawyers Association, American Immigration Council, and American Bar Association Center for Innovation have teamed up to develop a rapid response initiative to offer comprehensive information on immigration issues. See Harold Meyerson, Why Cant Labor Get a Little More Help From Its Friends?, white industrial worker as the dominant representation of the working class,
Congress is on the verge of eliminating the program. Today, the rise and popularity of movement lawyering within
Public interest law defines so many progressive lawyers
Dwindling membership
What are you passionate about? Part II then explains why and how public interest lawyers should
interest law such that it centers on a commitment to developing left political
See Keeanga-Yamahtta Taylor, From #BlackLivesMater to Black Liberation (2016). See Scott L. Cummings & Ingrid V. Eagly, After Public Interest Law, 100 Nw. exaggeration to say that American labor unions have collapsed.20 Following the upsurge in organizing
formulation of movement lawyering, it also advances that formulation further by
agreements in settlements. Unions exclusionary history has contributed to a perception of class as
Lawyers
studies (CLS) critique of rights questioned legalisms potential to further
through deliberate strategies of linked legal and political advocacy.11 This definition evinces a broad-minded,
On the other hand, we are living through a wave of
effective way to improve working conditions. always subject to change in response to political movements and changing legal
everywhere. This Part focuses on three interconnected challenges facing
John Schmitt & Ben Zipperer, Dropping the Ax: Illegal Firings During Union Election Campaigns, 1951-2007, Ctr. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. See supra notes 6-9 and accompanying text. California have been made possible by the political space created by workers
remake society to be more fundamentally just, fair, and equal, this aspiration
purely tactical or methodological definition of public interest law, rather
Janus creates a free rider problem because public sector unions are still required to represent workers even if they do not pay any fees or dues. assistance programs all center around the concept.52
clients to assert their rights while not crowding out other forms of action. density, the story of labor law in recent decades has also been one of decline. Under PSLF, those who make 120 monthly payments (10 years) on their federal graduate student loans while employed full-time in qualified public service jobs are eligible to have their remaining balance forgiven. legal activism.10. and conditions of employment are ultimately demanding that their employer
Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. is because public interest law lacks an organizing principle.
lawyer means not only to know labor law, but to have a deep understanding of
the same time, traditional forms of progressive public interest law have lost
On the one hand, the present legal
unions could not effectively resist.22 As a result, union density has
And even the relatively high unionization rate in the public sector34.4% in
In todays context, that transformation requires building
706, 708-10 (2018). Indeed, the last best chance for modestly progressive labor law reform on a
unscrupulous employers are able to avoid payment by filing for bankruptcy or
This struggle over discourse also carries direct and practical implications because financial benefitssuch as law school scholarship eligibility, summer funding, loan forgiveness, and pro bono creditsometimes turn on the definition of public interest law. to labor lawyering, they aim to model the type of analysis that can translate a
In our society,
can supplement them by holding employers accountable for legal violations other
In Part III, I
The terms popularity and moral authority have led law schools to
18 (2009), https://www.epi.org/files/page/-/pdf/bp235.pdf [https://perma.cc/H34G-PCCC]. in 1954. incorporating a substantive commitment to left politicsthat is, to the fundamental
cost of settlement.85 While
understanding that their organizing goals and aspirations should not be limited
.). challenges, foster members engagement in solidaristic
protection and unfair business practices law. Pritzker Sch. 401, 417 (1987) (For blacks, the prospect of attaining full rights under the law has always been a fiercely motivational, almost religious, source of hope.). Instead of
activists reinstatement, the organizing drive may very well be over, a
genuine social transformation, in part because legal rights tend to transform
(1) a wide range of lawyering practices that are predominantly, but not
their ability to create crises for their employersundergirded by their
almost certain to drop sharply in the wake of Janus v. American Federation
opportunities, and it calls for progressive lawyers to renew their commitment
Lawyers in the first four years of practice pay $75 per year, and those with more experience pay only $150. for addressing an issue that is commonly understood as within the realm of
presidency.28, Shrinking unions, declining political power, and an inability
Over many decades, the ABE has generously made grants of nearly $300 million to help support law-related public service, educational, and research projects of interest and importance to the public and the profession. motivations are made explicit.51 If this definition is rambling, it
resistance.7 At the same time, the critical legal
exclusively, considered politically progressive48; (2) an amalgamation of cause
While this social category
This focus reflects the Essays argument for building an understanding of public interest law rooted in left politics. A budget blueprint released by President Trump for the fiscal year 2018 proposed cutting all federal funding for the Legal Services Corporation. public interest lawyers in different fields will be a tremendous asset to
Many conservative lawyers consider themselves public interest lawyers. practice areas is not especially innovative. that as the labor movements workplace and political power has declined, the
in an order from the National Labor Relations Board requiring the employer to
This example is an attempt to put into practice an approach to akin to Lucie Whites concept of third-dimensional lawyering: helping a group learn how to interpret moments of domination as opportunities for resistance. White, supra note 7, at 763. that rights discourse should be abandoned because it potentially stultified the
See Johnson & Hawbaker, supra note 43 (last visited Sept. 24, 2018). Robert Saut, For the Poor and Disenfranchised: An Institutional and Historical Analysis of American Public Interest Law, 1876-1990, at 10 (2008). This lack of protection is a further barrier to the organization of the new working class.. The year 2021 saw its share of challenges, however, that didnt stop the ABA from achieving meaningful accomplishments.
workplace.
Poly Inst. that this entails: a model of practice in which lawyers accountable to
disaggregated in the lived experience of members of the new working class, who
and movements in progressive politics writ large.54. public interest lawyers political beliefs, together with our expert
significant Democratic majorities in both chambers of Congress and an Obama
L. Rev. politics.
environment, the transformative potential of traditional forms of public
that many employer actions, while unlawful, are unlikely to be adequately or
Austin Sarat and Stuart Scheingold defined cause lawyering as using legal skills to pursue ends and ideals that transcend client servicebe those ideals social, cultural, political, economic, or, indeed, legal. Austin Sarat & Stuart Scheingold, Something to Believe In: Politics, Professionalism, and Cause Lawyering 3 (2004). Sch., https://law.vanderbilt.edu/public-interest [https://perma.cc/2F7Y-QHYZ]. irresolvable without a transformation in power relations between workers and
Given this breakdown in enforcement, lawyers should emphasize that organizing
confronting abusive bosses through legal channels rather than through direct
to name a few. L. Rev. conservative shift in the courts and a concomitant narrowing of public interest
throughout Southern California and Phoenix, Arizona. movements declining workplace and political power. (Jan. 27, 2017), https://host.madison.com/wsj/news/local/govt-and-politics/union-membership-down-nearly-percent-since-act/article_60c1bb7e-3ae3-57d0-b4b3-a9aa46f0e59f.html [https://perma.cc/Z5D4-S72C]; David Madland & Alex Rowell, Attacks on Public-Sector Unions Harm States: How Act 10 Has Affected Education in Wisconsin, Ctr. the concrete bonds of solidarity necessary for collective action into abstract
can advance progressive goals. . reforms are necessary to ultimately address these injustices, but the American
1527 (2002) (arguing that American labor law has been uniquely insulated from change, thus largely precluding its adaptation to new economic conditions). the local jurisdiction, but the general principle is straightforward: labor
requires labor lawyers to understand their role holistically, to go beyond a
identity-based oppression, is impossible without the collective action of
that an administrative law judge can impose, like backpay and reinstatement for
493, 497-501 (2013).
Employment law consists of the
C.R.-C.L. their effectiveness due to structural changes in the legal infrastructure in
turn, conservative Justices have promulgated radical doctrinal developments in
of movement lawyering provides a roadmap for the kind of lawyering tactics
campaigns: one study estimates that in the 2000s, activists faced a fifteen to
seminars on lawyering skills and public interest law and its requirement that
social change through deliberate strategies of linked legal and political
their excellent editing and thoughtful suggestions. L. commitment to building left political power would ensure that no client leaves
since the Reagan era. As a broad and inclusive progressive movement grows and gains
This understanding was partially lost in subsequent decades,
constituencies mobilize law to build power to produce enduring social change
by the National Association for the
The following analysis models how this might
the cultural authority they have in service of empowering workers.
Does public interest law have a substantive unifying
and further, how their economic precariousness and lack of power make it even
public interest law reflects a general acceptance of these new approaches. See Jesse Myerson, Occupy Didnt Just Change the Conversation. It Laid the Foundation for a New Era of Radical Protest., In These Times (Sept. 17, 2016), http://inthesetimes.com/features/occupy-legacy-five-year-anniversary-mayday.html [https://perma.cc/9PCZ -BT4X].
positive reform possible again. 15 (Mar. that progressive public interest lawyers advocate a political movement
overturned decades of precedent to declare that public sector employees could
L. Rev. proposes that public interest law must take up a new shared ethic that is
Some examples
See Sameer M. Ashar, Public Interest Lawyers and Resistance Movements, 95 Calif. L. Rev. lawyering49
1980s saw the labor movements precipitous decline, as structural changes in
the main federal statute governing private-sector labor organizing and unions,
timely remedied.82
the global economy magnified the force of a sustained employer offensive that
highly institutionalized, making it an important arena for political
the public interest.14, Of course, even in alliance with movements for justice and
The political power of unions comes from their
for the practice of labor lawyers. attorney. Public interest law is a vague concept, encompassing a multitude of diverse
For examples of unions and workers organizations taking this approach, particularly through the use of local government law, see Scott L. Cummings and Steven A. Boutcher, Mobilizing Local Government Law for Low-Wage Workers, 2009 Univ. clients the likely outcomes of legal action, a public interest lawyer with a
individual case.65, This debate then has centered on the efficacy of legal
Hawbaker, #MeToo: A Timeline of Events, Chi. who have spoken out.97 At the
race theory (CRT) debate over the use of rights rhetoric, CLS scholars argued
provide devices to their housekeepers for summoning help when facing sexual
David Cooper & Teresa Kroeger, Employers Steal Billions from Workers Paychecks Each Year, Econ. But the failure of the employment law regime to enforce even basic worker
See Ann Southworth, What Is Public Interest Law: Empirical Perspectives on an Old Question, 62 DePaul L. Rev. were featured in Time Magazines 2017
massive, publicly funded expansion and restructuring of legal services
Weiler, supra note 31, at 1779. the legal profession by mediating progressive lawyers relationship to trends
technical skills and specific cultural authority to concrete legal and
287, 288-90 (1996); Ann Southworth, What is Public Interest Law: Empirical Perspectives on an Old Question, 62 DePaul L. Rev. public interest law is worth the effort, and is incumbent on lawyers who share
the #MeToo movement against sexual harassment and assault,78
how progressive lawyers should construct a new concept of public interest law
1767 (2001) (arguing that a narrow commitment to economic issues is insufficient, and that labor unions should embrace social justice goals that encompass other forms of hierarchy among workers); Kimberly M. Snchez Ocasio & Leo Gertner, Fighting for the Common Good: How Low-Wage Workers Identities Are Shaping Labor Law, 126 Yale L.J.F. 1879, 1905-06 (2007). Lives Matter,74
Marion Crain, Whitewashed Labor Law, Skinwalking Unions, 23 Berkeley J. Emp. opportunity to highlight how sexual harassment is rampant in their workplaces,
transform society toward progressive idealsor even simply to protect the most
Jane F. McAlevey, No Shortcuts: Organizing for Power in the New Gilded Age 61 (2016). the labor movements failure to pass the Employee Free Choice Act in 2009, even
Why Competition Is Paying Off For Americas Best Workers, Forbes (Dec. 12, 2017), https://http://www.forbes.com/sites/maggiemcgrath/2017/12/12/unions-are-dead-why -competition-is-paying-off-for-americas-best-workers [https://perma.cc/E3B4-JQ67] (arguing that competition [between employers concerned with retaining their employees] now delivers what unions once did). law to achieve social justice create an obligation to tryand to be as
(Sept. 19, 2018, 4:15 PM), http://www.chicagotribune.com/lifestyles/ct-me-too-timeline-20171208-htmlstory.html [https://perma.cc/BY33-JAHR] (last visited Sept. 24, 2018). This could be understood as an attempt to combine the lessons of both sides of the CLS/CRT debate on rights rhetoric. class faces demands that progressive public interest lawyers build the
an upsurge in teacher strikes,77 and
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