They say that New York has a forward momentum. It is the city that is never silent, never stops, never sleeps. Even when dressed in the alternating white of snow and grey of sleet of the last week, this mammoth place has a quiet hum of energy. Therefore it is no surprise that the New York public interest law sector is vast, fast-paced, and innovative, and that my discussions with its public interest lawyers threw up not only a wealth of new ideas, but also important challenges to some of the assumptions that I had previously, quietly, held. Here are a few reflections:
Should the “who” come before the “what”?
One initial research question of this project was ‘by what process should CLCs define their strategic objectives and priorities?’ Jim Collins, in his book Good to Great, challenges this by asserting that a key guiding principle of an effective organisation is that you first choose the right (disciplined) people, and only then the content of the work.
The story of the Urban Justice Centre (UJC) in New York exemplifies the success, or at least the utility, of such an approach. Its founder, Doug Lasdon, told me how the UJC could just as well have been called the “Entrepreneurial Law Centre”, for its unique structure and modus operandii. The UJC is comprised of ten autonomous and independently funded legal projects, in areas as diverse as community development, Iraqi refugees and sex workers’ rights. Founded in 1984 by Doug, who then ran legal cases for homeless clients he met at soup kitchens out of a burnt out building in Harlem, the organisation now has numerous offices and a multi-million dollar budget. When asked how the UJC projects were selected, Doug responded with the Collins approach: you should hire people whose judgement and intelligence you respect and then provide them with the autonomy, independence and support to do what they want to do. The UJC website states that this “extraordinary level of autonomy has led to an unparalleled sense of ownership, translating to heightened motivation, risk taking, visionary thinking and general excellence.” The success of this approach is certainly evident in its trajectory from humble beginnings.
Collaboration and community engagement.
Something striking about the New York public interest law sector is the prevalence of closes collaboration between lawyers and community groups and/or organisers, in various configurations. This is, in my view, an alternative method to strategic objective, or case, selection. While not necessarily matching legal work to demonstrably pressing legal need, the work is targeted to where there are committed and organised individuals willing to support lawyers’ work and implement its outcomes through a broader campaign. This may result in more effectively amplifying the utility of the legal work done. These models included the following:
- MFY Legal Services works closely with an organising group called the Coalition of Insitituionalised Aged and Disabled through its Adult Home Advocacy Project. Together they run ‘know your rights’ workshops in adult homes (long-term, supportive residential care for elderly people and non-elderly adults with disabilities). These two organisations work together to identify and respond to systemic issues in adult homes through this collaboration.
- Make the Road New York is a good example of a ‘law and organising’ organisation. It is a membership-based group that provides various services to the immigrant community of New York, including education, leadership skills and legal support services. It aims to “build the power of Latino and working class communities to achieve dignity and justice through organizing, policy innovation, transformative education, and survival services.” Therefore, its legal services arm supports its broader organising mission through a combination of direct service and systemic work. The latter is selected largely through members’ committees working on particular reform areas such as the Workplace Justice Project, or the Environmental and Housing Justice Project.
- The UJC Community Development Project (CDP) works with and for community organisations by: (a) partnering with them to run legal cases, (b) preparing community-driven research reports, and (c) providing organisations with technical and transactional legal assistance. A case study is of its work is set out in ‘The impact of non-litigation legal work’ excerpt below.
- The American Civil Liberties Union (ACLU) is another membership-based, nation-wide organisation that works with local, state-based affiliates to organise, and run, large-scale impact litigation. For example, its Racial Justice Program sought to test the proposition that by encouraging the issue of high-risk subprime mortgages in communities of color particularly vulnerable to financial hardship, large investment banks acted in a racially discriminatory manner and so violated federal civil rights laws. The ACLU worked with its Michigan affiliate to find appropriate clients in Detroit, an area particularly affected by the subprime mortgage crisis. In 2012, the ACLU, again working with other legal organisations, filed a lawsuit on behalf of a group of five African American residents (and a related not-for-profit institutional client) in Detroit against Morgan Stanley, a large investment bank. The complaint argues that Morgan Stanley’s securitization of mortgage-backed securities practices were racially discriminatory, and in particular that they violated the Fair Housing Act protection against discrimination in housing transactions, and the Equal Credit Opportunity Act, which bans discrimination for credit transactions. The complaint also asks the court to certify the case as a class action. The matter is currently ongoing.
Trust-building and clear communication.
An example of non-litigation strategic legal work: community benefit agreements.
One under-appreciated area of legal work that I find fascinating is that which never reaches the courtroom. It is also arguably the bulk of legal work – demands, negotiations, settlements. One interesting strategic case study in this area is that which the UJC Community Development Project undertook with the Northwest Bronx Community and Clergy Coalition to oppose the proposed Kinsbridge Ice Skating Centre development. Through an extended negotiation process, assisted by a pro bono firm and Julian Gross of counsel, the Coalition and the developers negotiated a Community Benefits Agreement, under which the developer agreed to provide free ice time for area residents, green jobs and green building practices, living wages for local workers, over 50,000 square feet of space for community use, and purchasing direct from local businesses.
Thinking carefully about remedies.
It is stating the obvious that a monetary award of damages obtained through a court process will not necessarily realise a public interest objective of a legal case. Therefore, it is important to consider from the outset what other, creative remedies or solutions there may be available. Ben Hoffman spoke of how in environmental litigation that sought to remedy the harm of environmental destruction sustained by a whole community, the award of damages to a small group of representative litigants by a court, while bringing a company to account, may also risk creating rifts within the community. Here we discussed the possibility of more creative solutions that can be drafted into a settlement agreement, presuming, obviously, the good faith of the parties. Doug of the UJC spoke of how he would err toward cases with clear, quantifiable remedies options, rather than ‘practice cases’ – cases that were about fixing the practice of an institution. While he acknowledged the latter to be as important, he also noted they were much more difficult to monitor for implementation.
Risk and resourcing.
Both the literature and interviews to date reveal a positive relationship between the willingness to take (calculated) risks and impactful, strategic legal work. My impression is that this is at least to some extent bound up in organisational resourcing, as most of the New York organisations I met with were largely, or entirely, privately funded, either through membership payments, and/or philanthropic grants. However, the broader question of how to most effectively undertake analysis, management, and intentional positioning of (again, calculated) risk within an organisation undertaking strategic litigation is an interesting one that warrants further consideration.
Through all the conversations I have had to date it is evident that most, if not all, my interviewees have an interest in measuring the impact of their organisations’ strategic legal work. However how to do this in a resource-effective and meaningful way is a complex question, and again an interesting one for further consideration. On this point, I met with Erika Daley of the Open Society Justice Initiative in New York, who is part of a team undertaking an ongoing empirical study on the value and impact of strategic litigation from a social change perspective. An interesting panel discussion on this impact question, recorded by the Initiative in 2014, is available online here.
My discussions with lawyers in New York have been buoyant with a palpable optimism, a confidence in the capacity of law to result in meaningful social change. There may be many critical reasons for why this is more striking to me here than elsewhere: the federal constitutional Bill of Rights (and state constitutions), the more litigious legal culture, the longer and grander history of public interest lawyering, the nature of the lawyers this city attracts, their legal education, the predominantly private funding of these organisations, or the seemingly greater legal barriers to equality here of disadvantaged communities (and so the greater need to remain positive). However, I don’t think this is the whole story. There is perhaps also something about optimism and hopefulness that feeds itself. It is interesting to consider how this may be cultivated elsewhere.
Look out shortly for a brief excerpt on a spontaneous visit to Los Angeles.