Whose Public Interest Is It Anyway?

33 Pages·2017·2.03 MB·English

MMaaiinnee LLaaww RReevviieeww
Volume 47 Number 1 Article 2
April 2018
WWhhoossee PPuubblliicc IInntteerreesstt IIss IItt AAnnyywwaayy??:: AAddvviiccee ffoorr AAllttrruuiissttiicc YYoouunngg
LLaawwyyeerrss
Patricia M. Wald
Follow this and additional works at: https://digitalcommons.mainelaw.maine.edu/mlr
Part of the Law and Society Commons, Legal Ethics and Professional Responsibility Commons, and
the Public Law and Legal Theory Commons
RReeccoommmmeennddeedd CCiittaattiioonn
Patricia M. Wald, Whose Public Interest Is It Anyway?: Advice for Altruistic Young Lawyers, 47 Me. L. Rev.
3 (2018).
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol47/iss1/2
This Lecture is brought to you for free and open access by the Journals at University of Maine School of Law Digital
Commons. It has been accepted for inclusion in Maine Law Review by an authorized editor of University of Maine
School of Law Digital Commons. For more information, please contact [email protected].
WHOSE PUBLIC INTEREST IS IT
ANYWAY?: ADVICE FOR ALTRUISTIC
YOUNG LAWYERS
PatriciaM . Wald
I. THE PUBLIC INEREST LAWYER ...................... 4
A. The Public Interest Law Movement ................ 4
B. Special Education ................................. 10
C. Deinstitutionalization. ............................. 15
II. TH GovERimwNr LAWYER .......................... 21
iH. TiH JUDGE ........................................... 25
A. Agency Cases: Results and Rationales ............. 27
B. Where PrecedentL eaves Off, Where Does Judicial
Activism or Restraint Lie? ......................... 28
C. Constitutional Conundrums ....................... 29
D. The Public Interest in Dissenting .................. 31
IV. CONCLUSION .......................................... 33
MAINE LAW REVIEW [Vol. 47:3
WHOSE PUBLIC INTEREST IS IT
ANYWAY?: ADVICE FOR ALTRUISTIC
YOUNG LAWYERS
PatriciaM . Wald*
I. THE PUBLIC INTEREST LAWYER
A. The Public Interest Law Movement
It is by now a ritual for judges and elders of the bar to lecture
prospective young lawyers that they should devote a significant part
of their career to pro bono work. Pro bono of course is short for pro
bono publico-for the good of the public. I can certainly attest
from my own forty years in the law that there are great satisfactions
in devoting one's skills to a cause larger than money or even profes-
sional reputation. But I can also tell you that doing good can be
hard work, and that a lifetime of public service requires just as
much, probably more, prudence, discretion, judgment, tolerance for
frustration, and long-range perspective as for-profit lawyering. To-
night, drawing on my own experiences in three phases of public in-
terest lawyering, I will discuss some of the conflicts and dilemmas
nontraditional lawyering poses. I do this-heaven knows-not to
discourage would-be novitiates, but to counsel a kind of idealistic
realism, to be contrasted with unfocused feel-good notions, about
donating one's working life to the great unwashed, certainly the
great undefined, public interest out there.
The Bible warns against squandering one's talents profligately.
And there are just so many years, just so much energy and commit-
ment in any lawyer's lifetime. A series of tough questions, not all of
which I am confident I can answer myself, may help steer those of
you interested in public service closer to success, which I define as a
sense at the end of your career that you have contributed, commen-
surate with your talent and skills, to the slow but measured advance
of your community and nation toward a more just society.
My first question would be: Why do I want to serve the public
interest anyway, reserving for a moment the definition of what that
is? In short, what is the source of my altruism? Is it really concern
for others or a thin disguise for other less laudable motives-a good
r6sum6 (useful for those with political or judicial ambitions) or an
opportunity to feel good about myself and superior, even control-
ling, toward those I serve without pay, a welcome contrast to some
to the irritating demands of a paying client. A reviewer of Robert
Coles's recent book on altruism commented perceptively, "Among
the many forms of human action, few are subject to more misunder-
* Judge, United States Court of Appeals for the District of Columbia Circuit.
1995] WHOSE PUBLIC INTEREST IS IT ANYWAY? 5
standing, cynicism or rancor than the idealistic ventures of volun-
teers and activists who try to make life better for someone else."' In
the same vein, Anna Freud once observed:
How sad that in the name of goodness and kindness to others
one can see plenty of mean-spirited behavior-a demanding,
controlling, manipulative, condescending self-centered ruth-
lessness that masks itself as good will, as an effort at charity, as
an attempt to change the world, reform a given society.2
Others say that the only true altruists are those who perform
small anonymous acts of charity in their daily lives, not global re-
formers. But that kind of selflessness is hard to sustain. Early in my
career I did legal services work; after a few years of running to court
to stay evictions, seeking child support for bereft mothers, trying to
recoup denied welfare benefits, I became a class action/test case
junkie, desperately anxious for the single mandate that would spell
meaningful relief for the many. Those dedicated young lawyers who
do invest many more years affording poor people, children, aliens,
and criminal defendants individualized legal help deserve our ap-
plause. But many eventually gravitate toward a kind of public inter-
est work that aims at more dramatic changes in laws,' the so-called
public interest segment of the bar, spawned in the 1970s and now
claiming over 1000 lawyers in 160 centers throughout the country,
financed primarily by individual contributions or foundation grants.4
After decades of pro bono practice, no one yet has a sharp or
clean definition of public interest law. Years ago, Thurgood Mar-
shall enthused about those lawyers who:
provide representation to a broad range of relatively power-
less minorities-for example, to the mentally ill, to children,
to the poor of all races. They also represent neglected inter-
ests that are widely shared by most of us as consumers, work-
ers, and as individuals in need of privacy and a healthy
environment. These lawyers have, I believe, made an impor-
1. E. J. Dionne, Jr., Making the World a Better Place, WAsm Posr, Oct. 10, 1993
(Book World), at 3 (reviewing Robert Coles, The Call of Service (1993)).
2. Id. at 7. See also Carrie Menkel-Meadow, Is Altruism Possible in Lawyering?,
8 GA. ST. U. L. REv. 385 (1992) (tracing roots of altruism in legal profession and
application to pro bono activities).
3. See, eg., Richard C. Reuben, The Case of a Lifetime, A.B.A. J. April 1994, at
70 (1994) (detailing pro bono cases that have "shaped the law in important ways");
Debra S. Katz & Lynne Bernabei; PractisingP ublicI nterest Law in a Private Public
Interest Law Frm The IdealS etting to Challenge the Power, 96 W. VA. L. RFv. 293
(1994); Tigran W.E ldred & Thomas Schoenhnerr, The Lawyer's Duty of PublicS er-
vice: More Than Charity?, 96 W. VA. L. REV. 367 (1994) (review of conflicting no-
tions about lawyer's obligation to serve the needs of the poor).
4. NAN ARON, LIBERTY AND Jusnca FOR ALL 27 (1989) (158 groups employing
906 lawyers in 1984); BURTON A. WEISBROD ET AL., PuBi-c INmnsr LAw, AN
ECONOMIC AND INSTITUTIONAL ANALYSIS 552 (1978) (166 firms employing nearly
1000 lawyers).
MAINE LAW REVIEW [Vol. 47:3
tant contribution ... they have made our legal process work
better... and, by helping open doors to our legal system, they
have moved us a little closer to the ideal of equal justice for
all.5
And an early public interest lawyer described it this way: "We were
doing what [the elite law firm] was doing for corporate clients, ex-
cept we were doing it for citizens' organizations: for poor people,
for civil rights groups, for neighborhood development corporations,
for consumer and environmental groups."6
That kind of client-oriented definition didn't last long, however,
as the young conservatives of the 1980s claimed the mantle of public
interest law for themselves as well. Generously supported by corpo-
rations, trade associations, conservative constituency groups and
foundations, these new recruits did not see their mission as repre-
senting the previously unrepresented; to the contrary, they vigor-
ously advocated the case of private developers against land use
regulators, opposed limitations on the use of pesticides and fought
CAFE standards for automobile emissions. With their arrival on the
scene, public interest law could no longer be viewed as a monolithic
movement, dedicated to a single political agenda.7
This capsulized history raises a second, related question for young
lawyers embarked on a public interest career in the private sector.
How do I define the "public interest" I so unselfishly want to serve?
You can, of course, throw your lot in with a defined constituency
group, acting as the legal arm of a larger political or social move-
ment-the Sierra Club, the Legal Defense and Education Fund of
the NAACP, the Native Americans Rights Fund, the Women's Law
Center, and so on. Lawyering for such groups may not differ that
much from private practice; the lawyer is obliged within professional
and ethical rules zealously to advocate his clients' causes, as defined
by the clients. Although young lawyers representing such groups
may get more chances to participate in the policymaking of their
constituent organization than private practice counterparts, or to ex-
ercise more control over what cases are brought because of funding
shortfalls, still, they must decide if the organization's overall goals
and priorities are their own. Thus across the legal landscape we see
environmentalists opposing Native Americans; labor unionists vying
with racial and ethnic minorities and women's advocates; pro-
choicers pitted against right-to-lifers, all perceiving themselves as
public interest lawyers. In reality, they represent only one of many
segments, and that is the reason why their critics so often refer to
5. Justice Thurgood Marshall, Address to the Award of Merit Luncheon of the
Bar Activities of the American Bar Association (Aug. 10, 1975).
6. ARON, supra note 4, at 87 (quoting Charles Halpern, founder of Center for
Law and Social Policy).
7. Id. at 74-78.
1995] WHOSE PUBLIC INTEREST IS IT ANYWAY? 7
them, not illogically, as special interest lawyers. Often their claim to
the public interest label lies principally in the notion that by repre-
senting the unrepresented (when that is true) they legitimize and
fortify the basic adversary legal system for settling disputes and ob-
taining benefits.
This fact of life dictates a considerable degree of humility about
one's status as a public interest lawyer, it also dictates care in the
selection of causes. Few public interest lawsuits are zero sum games;
as ina ll litigation someone wins and someone loses. But in utilizing
the resources of the law to promote the interests of one part of soci-
ety over another, "special" or "public interest" advocates, however
designated, are playing with heavy weapons; they are forcing soci-
ety's hand on some of the most difficult resource allocation choices
it has, weighing in on one side of the scale against other sides.' Ac-
cording to Jack Greenberg, former Director of the NAACP Legal
Defense Fund, "You have to strike a balance, and with each case,
judge whether the net effect will be better than if the case had not
been brought. It's always a judgment call."9 What is not clear from
Greenberg's statement is whether the "net effect" is calculated ac-
cording to the client group's interests or the effect on society as a
whole. And that, of course, is the conscience always prodding pub-
lic interest lawyers. Is it enough if I ask whether the case advances
my group's special interest, or should I include the harder question
of whether society's interests are furthered?
Now in the real world, as practitioners like to call it, young law-
yers must initially make a decision that their "comfort level" is high
enough with a special group's agenda that they will not need to re-
calculate the net win/loss ratio for society on each case. But there
will come a point in almost every causist's career when a lawsuit
looks so skewed or antisocial that she will balk, and if it happens
frequently enough, feel compelled to leave. That is the framework
within which all conscientious special interest lawyers live. It is a
markedly different one from that of the archetypical tobacco lawyer
who is asked, as Roger Rosenblatt did recently in the New York
8. Some lawyers say the duty to advocate for the best interests of a single client
obviates the need to consider how zealous representation may affect society. The
classic example of this view is Lord Brougham, a defense lawyer who stated that he
was prepared to bring down the kingdom for his client in Queen Caroline's Case:.
[Ain advocate, in the discharge of his duty, knows but one person in all the
world, and that person is his client. To save that client by all means and
expedients, and at all hazards and costs to other persons, and, amongst
them to himself, is his first and only duty;, and in performing that duty he
must not regard the alarm, the torments, the destruction which he may
bring to others. Separating the duty of a patriot from that of an advocate,
he must go on reckless of the consequences, though it should be his un-
happy fate to involve his country in confusion.
2 Trial of Queen Caroline 8 (1821).
9. Id.a t 108-09.
MAINE LAW REVIEW [Vol. 47:3
Times, how he can live with himself,1" or even that of the nondis-
criminating counsel who does not attempt to make any judgments at
all about whether he is doing good or bad for society but says, "Let
the courts decide."
Why the higher standard for noncommercial lawyers? For one
thing, they play for higher stakes, usually not content to reallocate
resources from one individual to another, but rather to make gov-
ernment or major economic forces behave in a particular way, to
shift resources to benefit one segment of society, usually at the risk
of another segment. Although true only as a generalization, blurry
at the edges, this responsibility entails harder ethical decisions. On
a more personal basis, most lawyers who eschew private practice do
so at substantial monetary cost, and their personal self-worth re-
quires that they do a periodic self-audit to determine whether the
trade-off continues to be worthwhile.
Int he late 1970s, the Ford Foundation commissioned an evalua-
tion of the public interest movement.1 The core inquiry was
whether this kind of voluntary not-for-profit lawyering enhanced
the general welfare in any quantifiable way. The study asked first:
Will a particular lawsuit promote allocative efficiency, that is, will it
put society's productive resources to their optimum use? Or, alter-
natively, will it promote allocative equity by dividing the fruits of
those resources in a more equitable way? Ford concluded, predict-
ably, that most public interest lawsuits fell into the latter category.12
The study also found that our society has some shared standards of
allocative equity by which the legitimacy of these lawsuits can be
judged.
[I]t is not equitable for people to live in abject poverty no mat-
ter how unproductive they may be;... it is not equitable for
children to go without medical care and schooling simply be-
cause their parents are unproductive in the marketplace; it is
not equitable for non-whites, women, the aged, and other eas-
ily identified persons to suffer from discrimination whether or
not it is privately efficient for employers to base hiring deci-
sions on the low-cost information ... contained .. in the
knowledge of a worker's color, sex, or age.13
The evaluators found, too, that different kinds of lawsuits benefit
different sectors of the community. Thus, they said, "[T]he greatest
benefits per person from [public interest law] activities in the envi-
ronmental, consumerism, and voter-information areas accrue to a
subset of the population that is extraordinarily well-educated and
10. Roger Rosenblatt, How Do Tobacco Executives Live With Themselves?, N.Y.
TimS, March 20, 1994, (Magazine) at 36.
11. WEISBROD, supra note 4.
12. lIdat 7.
13. lIda t 18.
1995] WHOSE PUBLIC INTEREST IS IT ANYWAY? 9
well-off financially, compared with the U.S. population as a
whole."'4 But employment discrimination, education, occupational
safety, and health lawsuits produced a different reallocation. For ex-
ample, thirty class actions brought by the Washington Lawyers
Committee for Civil Rights opened up 230,000 additional entry-level
or blue-collar jobs for women and minorities.'5
Some other hard truths emerged. Although the authors of the
Ford study ultimately concluded the voluntary nonprofit sector ef-
forts of public interest lawyers can in some cases be more efficient in
advancing allocative equity standards than either the private sector
or government,'6 they also emphasized that judicial victories alone
are not always necessary or sufficient to bring about change in pri-
vate individuals or government officials;17 that public interest litiga-
tion is most valuable when it is undertaken on behalf of interests not
normally represented in the governmental decisional processes; and
that public interest law successes are limited by funding, lobbying
restrictions, conflicts among different interests and, sadly, by a lack
of understanding among groups as to where their own best interests
8
lie.'
Public interest litigation-at the time of the Ford report and, I
think, still-is most successful in compelling agencies to enforce ex-
isting laws and regulations and in requiring courts or agencies to
flesh out crucial "details" of protective legislation that legislators
omit. On occasion it paves the way for agency heads to demand
more money from legislators to do their job right, and it has some-
times made institutions fundamentally reorient their care-giving
functions.'9 But public interest litigation has been severely criti-
cized-not entirely without justification-for slowing down govern-
ment processes, overburdening the courts, and concentrating on
centralized policymaking in Washington, D.C. rather than grassroots
program development.2' Disappointingly, even winning decrees
take decades of compliance efforts or, more discouraging still, are
just plain ignored. Public interest veterans complain, "[We] never
expected it would take so long to implement court decisions. It
often seems like you never win. Your adversaries keep coming
back. You have to constantly fight to win battles you thought were
21
over."
14. Id. at 145.
15. Id. at 283.
16. Id. at 554.
17. Id. at 553-55.
18. Id. at 554, 556-58. See also Henry J.R eske, Ralph Nader's New Project,
A.B.A. J. May 1994, at 32 (new group will work with local community organizations,
not individuals, for systemic improvements in housing, public safety, etc.).
19. WEISBROD, supra note 4, at 216; ARON, supra note 4, at 97.
20. ARON, supra note 4, at 105.
21. Id. at 107 (quoting Alvin Bronstein and Judith Lichtman).
MAINE LAW REVIEW [Vol. 47:3
What conclusions do I expect you to draw from all this? That
public interest lawyering is not constantly fulfilling; that trying to
play God can be an uncomfortable, even self-doubting role; that in
many cases it is simply special interest lawyering; that most public
interest lawsuits redistribute resources, rather than add to them; and
finally, that lawsuits, perhaps because they are so adversarial, are
not always the best way to change behavior, and legal victories can
take decades to monitor, as well as induce unanticipated conse-
quences. Judgment-calls on litigation made under financial con-
straints often involve the least elevated of concerns: what one's staff
can do best, which judge will rule on the case, or how much publicity
the case will generate for the project.'
To illustrate these ambiguities, let me talk briefly about two public
interest law cases I worked on in the 1970s, one on behalf of handi-
capped children seeking public education and one to deinstitutional-
ize St. Elizabeth's Hospital mental patients in Washington, D.C.
Both suits were brought (and won) in the early 1970s; both are still
active and not yet fully settled in the federal district court in our
circuit today, over twenty years later. Both cases raise significant
questions about the net effect of the "rights" they established; yet
there can be little doubt that both performed catalytic functions in
changing the social equities for handicapped children and mentally
ill persons. But in both cases you might well ask the question-I
have often asked it myself-was the effort enlightened or tunnel-
visioned, a net gain or net loss for the public interest?
B. Special Education
Mills v. Board of Education23 was a class action brought on behalf
of all physically and mentally handicapped, retarded, and emotion-
ally disturbed children ("challenged" children in the current par-
lance) who had been denied admission to or expelled from the D.C.
public schools because of their disabilities. In 1971, when the suit
was filed, there were an estimated 22,000 such children in D.C.'4 At
the time of the suit, less than $1 million was being spent on the edu-
cation of handicapped children in D.C. Mills was the second such
case brought in the nation, the first to encompass physical or emo-
tional disabilities as well as retardation. The plaintiffs, the Center
for Law & Social Policy, and the National Legal Aid and Defenders
Association, based their suit on D.C. laws and regulations that, we
argued, guaranteed an entitlement of a public school education to
all children as well as on a constitutional equal protection theory
that presupposed education was a basic right that could not be de-
nied a child because of a condition beyond her control.
22. Id. at 99.
23. 348 F. Supp. 866 (D.D.C. 1972).
24. I& at 868.
1995] WHOSE PUBLIC INTEREST IS IT ANYWAY? 11
The D.C. Board of Education's opposition to the suit was per-
functory. The corporation counsel relied, rather limply, on the de-
fense that no money from the regular school budget appropriation
could be diverted to special education. The trial judge, however,
ruled that handicapped children deserved to share in whatever gen-
eral funds were appropriated for education. He also bought most of
our prescription for wide-reaching relief. a guarantee of individual-
ized diagnosis, prescription, and placement within fifty days in an
appropriate program for all handicapped children, including those
suspended or expelled for disciplinary reasons if the underlying
cause was emotional disturbance. These individualized education
plans could be challenged by the child's parents in hearings before
arbiters from outside the school system, with an eventual appeal to
the court.
Following the Mills decree, which never was appealed, the system
cranked into operation; three hundred hearings were held within the
first nineteen months. 5 In that time the number of students diag-
nosed as in need of special education rose 75%, but the special edu-
cation budget increased by only 25%,6 predictably, complaints
abounded that this money was being taken from non-handicapped
children. On the other hand, parents of handicapped children
thought the hearings were stacked in favor of finding that disabled
children could be accommodated in special education programs set
up within the school system rather than through subsidized place-
ments in the parent-preferred private programs around the city.
In the mid-1970s, Congress, drawing in substantial part on D.C.'s
experience under the Mills court decree, passed the Education of
the Handicapped Act, later renamed the Individuals with Disabili-
ties Education Act ("IDEA").27 The Act provided needed funding
for special education in local school systems and established the
kind of individualized placement and hearing requirements already
required under Mills. The Act stressed what we called "main-
streaming" then (it is called "inclusion" now), the placement of chil-
dren within the regular classrooms, bolstered with supplementary
help if necessary, rather than in segregated programs serving handi-
capped children only. But a basic conflict was surfacing. In 1974
testimony we warned the House Committee, "There is a real danger
that [the] mainstream philosophy can be used as a cover-up for inad-
equate school programs that do not satisfy these children's real, spe-
cial education needs."'
25. Hearings on H.R. 70 Before the Select Subcomm. on Education of House
Comm. on Education and Labor, 93d Cong., 2d Sess. 194 [hereinafter Education
Hearings] (testimony of Patricia M. Wald).
26. Id. at 192.
27. 20 U.S.C. §§ 1400-1485 (1988); Pub. L No. 102-119, 105 Stat. 587 (renamed
1991).
28. Education Hearings,s upra note 25, at 193.