WASHINGTON, D.C. – Today, the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), in collaboration with Atlas Learning Project, TCC Group and Arnold & Porter LLP, released a new report – “Toward a More Just Justice System” – addressing the question of the United States federal courts’ openness to impact litigation. The report was supported by Atlantic Philanthropies.
“Impact litigation has remained a core component of the work of many social justice organizations, including the Lawyers’ Committee’s work since its founding more than 50 years ago,” said Jon Greenbaum, chief counsel for the Lawyers’ Committee and co-author of the report. “The extensive research contained in this report demonstrates that although federal courts have become increasingly more conservative over the years and less inclined to favor social justice litigants, litigators and advocates have achieved some success through persistence, ingenuity and strategic thinking.”
The report is authored by Greenbaum and four Lawyers’ Committee current or former project directors, who combined have 150 years of litigation experience. It focuses on impact litigation and an expansive review of relevant cases, articles and studies. The findings of the report include:
- Numerous procedural and substantive decisions made by the Supreme Court over the past several decades have negatively affected social justice litigation;
- Despite these impediments, the courts remain open to social justice claims to some degree, and social justice advocates have continued the long legacy of addressing unfair policy issues and practices through the courts. In some cases they have needed to circumvent barriers; in others they have worked to minimize their effect or even reverse them;
- There are several factors that may move courts to fairly and favorably consider social justice litigation:
- Courts may be more inclined to act when the problem creating the need for litigation is large and persistent;
- Advances in science and social science have also become critical tools in persuading courts of systemic injustice and unfair bias in policy and social practices;
- Shifts in public opinion have altered the way the courts view issues in some cases.
- The judicial and political philosophy of judges remains the strongest determinant of the way courts treat social justice litigation.
In addition to illustrating key findings, the report provides recommendations to funders who engage in social justice work, including:
- Social justice litigation takes time. Impact cases typically take several years; accordingly, funding them requires long-term investment;
- Social justice litigation is expensive. In addition to staffing the cases for the number of years required to litigate, most of the more complex cases have significant out-of-pocket costs including those for investigation, depositions, experts, other discovery costs, and communications;
- As discussed above, successful social justice litigation requires litigators who carefully think through all of the contingencies and potential obstacles. Funders should think through carefully which organizations to fund and should ask questions of potential grantees about their litigation strategies;
- Social justice litigation entails high risk and high reward, and progress on cutting-edge issues often has fits and starts. The first cases on a particular issue may be unsuccessful.
“This report comes at a critical time, as we currently face unprecedented resistance to fill the current vacancy on the Supreme Court,” said Kristen Clarke, president and executive director of the Lawyers’ Committee. “The Supreme Court is the arbiter of some of the gravest civil rights cases and controversies across the United States. As this report demonstrates, we continue to face difficult challenges to impact litigation and we must remember the substantial and positive changes that we continue to see and create through this type of work.”
To read the full report, click here.