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GAZETTE
March 1976
THE PUBLIC INTEREST LAW
MOVEMENT IN THE U.S.
by Denis Linehan, LL.M., Lecturer in Law,
University College Cork
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.
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
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