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Strategic litigation, also known as impact litigation, is the practice of bringing
lawsuit A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today ...
s intended to affect societal change. Impact litigation cases may be
class action A class action is a form of lawsuit. Class Action may also refer to: * ''Class Action'' (film), 1991, starring Gene Hackman and Mary Elizabeth Mastrantonio * Class Action (band), a garage house band * "Class Action" (''Teenage Robot''), a 2002 e ...
lawsuits or individual claims with broader significance, and may rely on
statutory law A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wi ...
arguments or on
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...
al claims. Such litigation has been widely and successfully used to influence public policy, especially by left-leaning groups, and often attracts significant media attention. One prominent instance of this practice is ''
Brown v. Board of Education ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision of the United States Supreme Court that ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the ...
''.


History

In the late nineteenth and early twentieth centuries, the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is an American nonprofit civil rights organization founded in 1920. ACLU affiliates are active in all 50 states, Washington, D.C., and Puerto Rico. The budget of the ACLU in 2024 was $383 million. T ...
and
National Association for the Advancement of Colored People The National Association for the Advancement of Colored People (NAACP) is an American civil rights organization formed in 1909 as an interracial endeavor to advance justice for African Americans by a group including W. E. B. Du&nbs ...
(at times through its Legal Defense Fund) both pursued legal action to advance and protect civil rights in the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
. The ACLU followed a primarily "defensive" strategy, fighting individual violations of rights when they were identified. The NAACP, in contrast, developed a more coordinated plan to actively file suits to challenge discrimination, known as "affirmative" or "strategic" litigation. The NAACP's model became the pattern for "impact litigation" strategies, which applied similar tactics in contexts other than racial discrimination. Important early impact litigation cases included ''
Brown v. Board of Education ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision of the United States Supreme Court that ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the ...
'' and '' Roe v. Wade''. ''Brown'', a 1954 U.S. school desegregation decision, was carefully prepared by
Thurgood Marshall Thoroughgood "Thurgood" Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme C ...
and other NAACP lawyers so that the eventual
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
ruling invalidated official racial discrimination throughout the U.S. government. Many cases since then have closely imitated it, in the course of seeking greater protections for other disadvantaged groups.


Scope

Impact litigation has played a major role in the development of American desegregation, women's rights,
abortion Abortion is the early termination of a pregnancy by removal or expulsion of an embryo or fetus. Abortions that occur without intervention are known as miscarriages or "spontaneous abortions", and occur in roughly 30–40% of all pregnan ...
, tobacco regulation policy and gay marriage. Since the 1980s, impact litigation has been used to seek the reform of U.S. child welfare law, following earlier work which involved the courts in jail and mental hospital reforms, and in school desegregation. Strategic impact litigation, among other things, has also been used in
Nigeria Nigeria, officially the Federal Republic of Nigeria, is a country in West Africa. It is situated between the Sahel to the north and the Gulf of Guinea in the Atlantic Ocean to the south. It covers an area of . With Demographics of Nigeria, ...
to push for convictions of perpetrators of police brutality and to defeat legal attacks on the
freedom of the press Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic Media (communication), media, especially publication, published materials, shoul ...
. In a few jurisdictions where attorneys are prohibited from bringing class action lawsuits, citizens have filed "grassroots impact litigation" cases and successfully represented their own claims.


Debate

Impact litigation has been criticized by legal scholars and politicians on the basis of judicial legitimacy and competence. The legitimacy argument holds that, in countries with a constitutional
separation of powers The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...
, societal changes are to be enacted by democratically elected bodies and are outside the purview of individual judges. The competence argument claims that institutional limitations on the amount and quality of information that can be made available in a court proceeding make the courts poorly prepared to handle complex policy issues. Another version of this argument points out that courts are limited in the scope of their responses, relative to legislative bodies. These debates overlap with those concerning so-called " judicial activism".


Lawyer-client relationship

Civil rights and poverty litigation has been critiqued for decades due to lawyers assuming too much control in their relationships with clients. The unconscious biases lawyers may hold toward poor, unemployed clients, can cause lawyers to feel the need to make more decisions for their client. While it is lawyers’ responsibility to empower clients to make their own decisions and train their clients to understand and handle their own problems, lawyers in legal aid, law school clinics, advocacy, and small civil rights firms have been found to play a significant role in making decisions. At times lawyers have made decisions without the client’s input. Not maintaining an equal decision-making process reinforces negative stereotypes of low-income individuals and leave clients feeling politically powerless. While large organizations practicing impact litigation do not have to worry about the costs of promoting client autonomy, they have been criticized for pushing their own political agendas. The Model Rules of Professional Conduct and Model Code of Professional Responsibility “require loyalty to clients’ goals and prohibit lawyers from allowing other interests, including their own, to interfere with their duties to clients.” Manipulating clients to further personal political agendas is a highly unethical practice in civil rights and poverty law, and has been strongly voiced by critics on the right. This practice comes into play especially in large class action lawsuits when immobilized groups have compounding interests and it is up to lawyers to make final decisions. In order to ensure lawyers are allowing clients to participate equally in the decision making process, lawyers must work to better inform their clients. Having informed clients that can advocate for themselves will allow lawyers to effectively represent the current wishes of individual clients and class members rather than their own perceptions of clients’ long-term goals.


Can impact litigation alone effect societal change?

In order to bring about significant social reform, lawyers have paired impact litigation with other multidimensional strategies. These strategies include lobbying for regulations and legislation, speaking to the press, building coalitions, organizing grass-roots campaigns, educating clients, influencing government officials, and working with other interest groups. Lobbying state and local governments for policy reform that helps organizations' client base is often a top priority for public interest law organizations. Policy changes can have positive effects on the larger community organizations are serving and assist clients in coming out of poverty. Education also plays a significant role in informing both influential people and affected communities about the injustices faced by marginalized groups. Mobilizing communities at a local, regional, and national level brings power to marginalized communities and helps them be seen and listened to. The
American Civil Liberties Union The American Civil Liberties Union (ACLU) is an American nonprofit civil rights organization founded in 1920. ACLU affiliates are active in all 50 states, Washington, D.C., and Puerto Rico. The budget of the ACLU in 2024 was $383 million. T ...
and
NAACP The National Association for the Advancement of Colored People (NAACP) is an American civil rights organization formed in 1909 as an interracial endeavor to advance justice for African Americans by a group including W. E. B. Du&nbs ...
are pioneer organizations that recognized the political dimension of lawyering early on, which has led other law firms focused on impact litigation to follow in their footsteps and incorporate educational outreach, mobilization, and policy influence into their strategy.


Examples

* LGBT rights litigation * Environmental litigation


See also

*
Amicus curiae An amicus curiae (; ) is an individual or organization that is not a Party (law), party to a legal case, but that is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. Wheth ...
* Public interest law


References


Sources

* * * * * * {{cite book , last=Tushnet , first= Mark , editor1=Grossberg, M. , editor2=Tomlins, C. , chapter=The Rights Revolution in the Twentieth Century, title=The Cambridge History of Law in America , publisher=Cambridge University Press , series=Cambridge histories online , issue=v. 3 , year=2008 , isbn=978-0-521-80307-6 , chapter-url=https://books.google.com/books?id=0qzGVWekKUoC&pg=PA383 Lawsuits Social justice Tactics Legal disputes