On a short trip to sunny Los Angeles, and a moment of respite from the chill of New York, I took the opportunity to visit an academic I had long admired from a distance: Scott Cummings. Scott is Professor of Law at the University of California, Los Angeles (UCLA), faculty director of the UCLA David J. Epstein Program in Public Interest Law and Policy, and author of numerous key texts on public interest law (some of which I refer to in this literature review post below). Our discussion traversed over the following two particularly interesting controversies.
Reframing, and other lessons from the conservative legal movement. One fascinating element of the US legal landscape is the conservative legal movement. In response to a question about what progressive public interest lawyers could learn from the conservatives, one key point that Scott raised was that of (re)framing. He noted:
“In the last 25 years or so….and this is not specific to legalism, but there is a dimension that you can see in the legal movements…generally, [the conservatives] have been more effective in framing what they are doing in ways that resonate better with contemporary American values. That matters profoundly, because much of [public interest law work] is about persuading people of the justice of your cause…. There is something about positioning their work within the dominant narrative of social justice in the United States that the conservatives have managed to do really well.”
Despite Australia’s lack of an equivalent conservative legal movement, this point is, in my view, equally relevant in Australia, particularly in areas such as refugee and environmental law.
By way of example, Scott discussed how since the 1970s the conservative legal movement has ceased to align itself overtly with business interests, and moved instead toward furthering a deregulatory political agenda through litigation framed through a libertarian or civil rights lens. This includes, for example, the use of litigants toward whom the political left are sympathetic, such as people of colour working toward economic development. For further reading on the conservative legal movement see Steven Teles’s highly-regarded book “The Rise of the Conservative Legal Movement: The Battle for Control of the Law“, and the writing of Ann Southworth.
Scott also discussed the way in which the pro-gun lobby had sponsored academics to prepare legal theories and constitutional law arguments that could be deployed before the US Supreme Court, at just the right time, to dramatically expand the Second Amendment right to bear arms. The case in point here is District of Columbia et al v Heller (2008), in which the Supreme Court (in a 5-4 decision) upheld the individual’s right to keep a firearm in the home for self-defence, and so significantly limited the states’ ability to introduce (or retain) greater gun controls. For more on this case and the history of the US pro-gun movement generally, see Adam Winkler’s book “Gunfight“.
In discussing what opportunities there are for meaningful evaluation of the impact of public interest law work, Scott helpfully challenged me to define with greater precision what exactly it is that I am concerned with measuring. What kind of cases should we, or do we want to, measure? And why? He also raised the question of scale: at what point in time do we elect to measure impact? Over what length of time? It might be necessary to look at the historical perspective for meaningful data where measuring the impact of litigation as part of a long-term social change campaign, for example that in relation to same sex marriage.
However, in other cases, it may be sufficient to look at the outcome of the litigation alone, or to add only necessary, deliberate layers of further evaluation to this. For example: what level of compliance is there to the court decision by lower courts? And/or what level of compliance is there by relevant administrative agencies? At other points, it may be sufficient, in turn, to record impact only by way of a descriptive case study, or to use simple metrics where this is meaningful. The depth of evaluation will depend on your objectives in the evaluation exercise as well as, obviously, available resources. This was a useful reminder to avoid the temptation of the “one size fits all” solution to a complex question.
(1) Cover of Alan Chen & Scott Cummings, Public Interest Lawyering: a Contemporary Perspective (2014).
(2) Close up of Shoot the Coin by Mark Bradford (2013) exhibited in the Los Angeles County Museum of Art exhibit titled Variations: Conversations in & Around Abstract Painting.