The Gazette 1976

GAZETTE

March 1976

THE PUBLIC INTEREST LAW MOVEMENT IN THE U.S. by Denis Linehan, LL.M., Lecturer in Law, University College Cork

New role for Lawyers Passivity, Conservatism and Neutrality are distinc- tive features of the Lawyer's traditional role. Passivity indicates that the lawyer exercises functions only in respect of demands that have already been articulated. The lawyer will, for example, process an objection to a proposed development plan presented to him by a client. He will not, however, on his own initiative monitor proposed development plans with a view to ensuring their regularity. Conservatism indicates that the lawyer's concern has been the implementation of existing legal norms rather than the formulation of new ones. A Commercial Lawyer, for example, will readily recognise his duty to be in a position to explain the requisite formalities of hire-purchase agreements to a client. He would not normally, however, recognise himself as under a duty to make representations to a governmental commission established to consider the adequacy of these formalities. Neutrality, as a feature of his traditional role, signifies that the lawyer cus- tomarily exercises his functions with primary regard to the interests of society as a whole where the two sets of interests are in opposition. Thus, for example, a lawyer will normally seek to arrange his client's affairs in order to exploit any loopholes in taxation legislation. The arrangement may be a device of "avoid- ance" rather than of "evasion". Query, however, whether the distinction between avoidance and evasion is always morally clear. Th e role adopted by Public Interest Lawyers, in contrast to the traditional role of lawyers, is active, reformist and value-oriented. The Public Interest Lawyer does not see his task as being con- fined to the representation of previously articulated demands. He seeks on his own initiative to define under-represented groups or "Constituencies", to artic- ulate demands on their behalf and, finally to repre- sent these demands. Some Public Interest Lawyers adopt as constituents those who are caught up in the poverty syndrome, such as recipients of public welfare payments, slum-dwellers and habitual criminals. Others choose to champion the "unpopular client", such as the draft resister, the rapist, and the person charged with sedition. Other public interest lawyers define their Constituencies on an ethnic basis. Thus, public interest law projects have been organised on behalf of Indians, Eskimos and Blacks. Consumers and environmentalists are two other well established Constituencies of pub- lic interest lawyers. The spectrum of public interest law r constituencies is so wide that indeed it is possible to exclude from it only Big Government, Big Business and Big Labour. Reformist Role The role of the public interest lawyers is also re- formist. The new style lawyers are not content to re- present their Constituencies through existing court or administrative procedures in conformity with existing norms. Representation of the public interest client in- deed is often designed to effect a restructuring of the procedures, and a modification of the norms, in favour of the client. Certain strategies and techniques which have become associated with public interest law repre- s e n t a t i on— including research and dissemination of information, test case litigation, organisation of the community base, monitoring of government agencies and political lobbying — will be discussed later. At this point, the celebrated case of Office of Communi- cation of the United Church of Christ and Others 39

PART I

Introduction The Public Interest Law Movement in the United States involves the search by American Lawyers for new roles within society. Many American Lawyers have perceived their traditional role as professional craftsmen as too confining in view of the major issues social, economic and political — facing modern society. Th e Public Interest Law Movement represents an attempt by American Lawyers to fashion for them- selves a new role which will enable them to pene- trate the decision-making processes — Legislative, Judicial and Administrative — on behalf of hitherto un- recognised or under-represented interest groups in society. An underlying assumption of the movement js that accessibility to these decision-making processes is denied to legitimate interest groups and that, con- sequently, many decisions are made undemocratically. Th e Public Interest Lawyers aim at two distinct types of goals. Firstly, they seek to alter the procedures of decision-making in order to permit a wider range of input into these procedures. Secondly, they seek to in- fluence the substance of relevant legal norms in fav- our of the Interest Groups which they represent. Origins of the Movement Th e Public Interest Law Movement originated in the turbulent 1960's. T h at decade saw the emergence of Interest Groups which previously had been under- represented in the decision-making processes. They in- cluded Environmentalists who addressed themselves to s uch issues as urban planning, strip mining and effluence. Included also were those who re-defined the "problem of corporate bigness" and who advocated new ways of making the big corporations conform to fhe public interest. It was a decade in which Associat- ions organised along cultural, racial and sexist lines escalated their demands for new laws to combat dis- crimination in such areas as housing, education and employment. Others, inspired by the achievements of Ralph Nader, succeeded in developing a new conscious- ness about the interests of Consumers as a group. T h e major question concerned the capability of governmental institutions to respond adequately to the new demands being made on them. An answer to this question could come only from a re-appraisal of America's institutions. Not surprisingly, the task of re- appraisal was undertaken primarily by Lawyers, the architects and technicians of the institutions. Many Lawyers, in re-appraising their institutions, have been compelled to redefine their own responsibilities to society. In particular, they have perceived a need to fashion for themselves a new role which will enable them to promote a more open government which will function with greater participation from the commun- ity at large. It is in the perceived need of these Lawyers for a new role in society that one finds the matrix of the American Public Interest Law Movement.