Category Archives: public interest law

On embracing failure: the paradox of public interest lawyering

(This is an amended version of a brief presentation given at Progress 2015 Legal Drinks).

You have likely spent today talking about progress, campaigning, and changing the world.  So  what then, in your view, is the first step to making a more meaningful impact with your work? What is your first step to changing the world? A common response to this question is that in order to change the world, you first need to change yourself. I agree with this, wholeheartedly. And yet, what does it actually mean? It could  mean anything, and so risks meaning nothing. This leaves us with the same question: as a public interest lawyer, where do you start?

I am going to suggest a first step that may be, for some, controversial. I am going to suggest that the first step to being a more impactful public interest lawyer is to embrace risk, failure, and uncertainty. I want to talk about mistakes.

I don’t say this out of the blue, but on the basis of some research I have been working on for the last four months. My research focus is on best practice strategic lawyering: how are public interest lawyers doing their work, what works (and what doesn’t), and how can we do our work better, particularly around holding institutions to account? This  has meant that I have spent the last four months speaking to close to 100 lawyers, academics, and thinkers across Victoria, in Sydney, and Darwin, and in seven international locations, about these very questions.

One surprisingly bright thread that emerged from these discussions was that the lawyers who I perceived to be doing the most impactful work were also those that were most comfortable with talking about their mistakes. They were the lawyers who were most willing to run the cases that were not clear-cut, in which there was a real risk of not pleasing everyone, of having to make difficult decisions, and so, ultimately, of failing at any number of precarious junctures along a litigation path. When (what could be described by some as) mistakes were made, these lawyers chose to reflect on this meaningfully, humbly, and learn from it. They did not obfuscate, self-aggrandise, or deflect.

One example of this is the work of the Centre for Applied Legal Studies (CALS), in Johannesburg, in responding to the Mapungubwe mining project over the last five years. Mapunguwe is a listed World Heritage Site and national park in the very north of South Africa, just near Botswana and Zimbabwe. It is a broad, sweeping savannah, which once lay at the centre of the Mapungubwe kingdom between approximately 900 and 1300 AD. This was the first established modern African empire, labelled by archaeologists as one of the most complex societies in southern Africa at the time. The site contains numerous ruins from this era, as well as diverse fauna and flora. It is supported by a buffer zone.

In 2008, an Australian-based company called the Coal of Africa (CoA) applied to mine for coal steam less than 7km north east of the Mapungubwe boundary. This was predicted to have severe implications for the cultural and environmental value of the site. CALS, together with the community campaigning group Save Mapungubwe Coalition, has over the last five years worked to at first oppose, and then mitigate, the effects of the mine on the area. They have succeeded in stalling mining operations, decreasing CoA’s share price, ensuring that CoA bear a cost for non-compliance, brought CoA under a greater regulatory regime, shifted mining operations further away from the Mapungubwe boundary, and, eventually, played an ongoing and meaningful role in the mine’s governance and oversight through their seat on the Environment Committee.

But not everything has worked. Most evidently CALS didn’t, through its initial litigation strategy, stop the mining. CALS and the Coalition commenced negotiations with CoA in 2012, but this stalled shortly thereafter due to a revelation that the company had withheld critical information. CALS’s resources were massively drained by the up-front litigation effort. There were miscommunications not only between the Coalition and CALS and their opponents, but also between CALS and the Coalition. Yet, despite all of this, there is no doubt that the two organisations have played an integral role in ensuring corporate accountability in this case. Interestingly, CALS has chosen not hide its reflections on the Mapungubwe story, but to write about them instead, in a series of publications.

One of my favourite examples of this is its Community Engagement Policy, which sets out some CALS reflections on how to work with community groups, in light of its Mapungubwe experience. CALS has also extracted out of this experience the inadequacies of the environmental regulatory regime, and made recommendations for how the environmental governance system should be amended to make it simpler and easier to navigate for civil society. CALS’s explicitly reflective approach to its work is one factor that makes it good at what it does. Its willingness to talk about what could be characterised as mistakes means that we can all learn from them, of course.

But there is something more to mistakes than the way we relate them back to success. One wonderful and talented writer that I met on my travels, Eve Fairbanks, writes this:

 “I think failure has a special beauty to it. Like a piece of furniture that falls apart, a mistake reveals more of its construction – of the efforts and motivations of the mistake-maker – than a success does”.

I love this. Like patches on an overcoat, failure has its own unique qualities. And, as Kathryn Schulz suggests in her book Being Wrong: Adventures in the Margin of Error, by simply acknowledging failure’s distinct (and inevitable) essence we may actually open ourselves to a wider breadth of experience and emotions. Embracing failure can feed our imagination, give us cause to laugh, and ultimately make us less arrogant, more empathetic, says Fairbanks. Which, in the legal world, is always a valuable thing. And so, one step toward being a more impactful public interest lawyer, or social change campaigner, may well be to get comfortable with failure.

It is a wonderful paradox, that in the perfectionistic legal profession, we might actually be better at our work if we can only hold risk in our hands. And skate so close to failure that sometimes, inevitably, we tumble into icy waters. American entrepreneur and venture capitalist Auren Hoffman says that in order to grow, you should aim to fail 20% of the time. Less than this and you’re not growing, but more than this and you may get disheartened. In law, and particularly in litigation, you may not choose to give yourself that leeway. However, there is always room to move. I would suggest creating a space in which you can experiment in failure, and see where it takes you.

South Africa: redefining, reimagining

Not only is another world possible, she is on her way. On a quiet day, I can hear her breathing.” – Arundhati Roy, quoted on the Black Sash website

The life of Jo’burg

IMG_4034Johannesburg, in South Africa, is an immense, contradictory city with a living history, much of it entangled with the law. Situated in the wealthy province of Gauteng (literally “place of gold”), named after its gold mines), it is the nation’s finance centre and one of the richest cities in Africa. It is also where Nelson (Madiba) Mandela studied at the University of the Witwatersrand, where he lived through much of the 1950s, and where he co-founded the first all-black law firm, Mandela and Tambo. He had briefly been imprisoned here at Johannesburg’s Fort Prison (where Ghandi had also been imprisoned in 1906), on what is now Constitution Hill, while awaiting the Rivonia Trial in 1962. Constitution Hill has since been reconstituted as a museum precinct and is also home to the IMG_0304Constitutional Court of South Africa, the nation’s highest appeal court. It is here that legal decisions which ended the death penalty in South Africa, and paved the way for gay marriage, were made. The South African Constitution (1996), negotiated over two long years, is heralded as one of the most progressive in the world.

Yet, from my outsider’s perspective, Johannesburg is still very much segmented by the legacy of apartheid. Downtown you can walk just two blocks and move from designer industrial redevelopment to a pot-holed street lined with half-closed liquor shops, pawn shops, and metal grate frontages. Along these streets diesel-exhaust buses careen around worn out men with street-darkened skin who move slowly under the weight of  enormous sacks of scrap. As I ride my bicycle along one of these streets to my first fellowship meeting, there is not another white person in sight. Change happens slowly, of course. But knowing this in the abstract is different to being in the thick of it. Perhaps Bryan Stevenson would call this proximity.

The Legal Resources Centre

My first interview in Johannesburg was with the quite remarkable Regional Director of the remarkable Legal Resources Centre (LRC): Naseema Fakir. Co-founded in 1979 by Arthur Chaskalson, one of the defence counsel in the Rivonia Trial, the LRC is one of South Africa’s oldest public interest law organisations. For varied oral histories of the LRC, see here. It is largely privately funded, and has a diverse mandate that has evolved with funding priorities and legal need. This includes environment law, housing rights (including illegal evictions and repossessions pursuant to mortgages), refugee law and legal assistance to not-for-profits. It runs a walk-in clinic, and also receives referrals from various organisations, including courts.

As Naseema tells me of the many interesting LRC cases, two challenges stand out: firstly, that of negotiating satisfactory early resolution of disputes with the state (particularly in meritorious cases), and secondly, that of effective enforcement of successful outcomes, again often against the state. For example, the LRC had, over many years, instigated urgent applications to release immigrants held in detention for over 120 days, which is prohibited under section 34 of the Immigration Act (2002). This work culminated in August of 2014, when the Centre successfully obtained a finding by the South Gauteng High Court that such conduct by the IMG_0305Minister of Home Affairs and others, ongoing since 2000, is unconstitutional (decision here). In this matter the LRC acted on behalf of the South African Human Rights Commission (SAHRC, a public oversight authority), two other institutional clients and 19 individuals. It is interesting to see how even with such clear technical breaches of law, state compliance cannot be assured, and to consider how legal organisations can best encourage good faith regulatory compliance and implementation. In that case, one of the orders that was sought and granted required two respondents to report to the SAHRC on compliance with the court order.  My impression was that even despite this clear outcome, enforcement would prove a challenge. This was confirmed by a further court order against the Minister for Home Affairs and others in relation to another unlawful detention matter on 1 April 2015.

We also discussed unintended consequences, particularly in the context of environmental law proceedings, which often hold in balance disparate competing interests. This is one challenge inherent in “litigating in complex factual circumstances where the terrain is constantly shifting underfoot“.[1] A case in point is Tudor Shaft. In 2012, a private entity endorsed by government departments sought to remove a toxic mine dump from near the informal Tudor Shaft settlement in the West Rand area. The LRC represented the Federation of Sustainable Environment (FSE) in opposing the process of the removal, as there had been no risk assessment or consultation in relation to the move. There was concern that the removal would liberate toxic dust that the community living nearby would inhale. Three years later, the matter is still ongoing, and has devolved into a multi-pronged legal battle involving numerous parties and a myriad of experts, who are necessary but also add further cost, delay and layers of complexity. While this goes on, the toxic mine dump continues to sit near Tudor Shaft, and a collaborative solution seems further and further off.

It is useful to contrast this with the work of the LRC in the area of responsible lending, where it opposes private entities. Carien van der Linde, Attorney at LRC, explained to me how she (together with only one administrative assistant and one articled clerk equivalent) is running about 60 files in relation to a fraudulent loan scheme administered by the now-liquidated Brusson Finance (Pty) Ltd.[2] The LRC successfully opposed foreclosure in many of these cases, and court orders have been successfully enforced (one example is here). These cases reminded me of the work of Consumer Action in relation to payday lending and responsible lending. It is interesting to consider how the sensitivity to costs and reputation risk exhibited by the pragmatic private sector may be encouraged in the case of the state.

Postscript: an arts conversationIMG_0326

On one of my first days in Jozi, I attended an art exhibition opening at the former Women’s Goal (now museum) at Constitution Hill titled “The New Now: Afrika Reimagined“. The proceedings started late, and wine bottles were left corked on the tables in the absence of bottle openers, and yet, the night entranced its audience. The conversation was between black artists and a largely black audience around “reimagining the past in order to move forward“. Poet Lefifi Tladi discussed the importance of language for freedom – how “one part of freedom is the ability to share ideas” – and yet, how few dictionaries there were between most of the 11 official South African languages, although they had all been translated into English. Artist Samson Mnis discussed religion and industry – creating, making, and buying, African. It was all said in a space itself lifted out of its history of violence, colonialism, and hatred. I wondered how this conversation could connect with that of the lawyers I would speak to.


Footnotes:

[1]Legal Resources Centre Annual Report 2012-13, p 24 , available online here.

[2] For those interested, in short, Brusson would offer credit to property-owning individuals with poor credit histories and unbeknownst to them transfer the property interest to a third-party investor, who would then obtain a bank loan using the prop­erty as surety, and provide the loan proceeds to the clients, with each company taking a cut. If a default occurred, the bank would fore­close on the prop­erty, result­ing in the orig­i­nal own­er los­ing their home, with little recourse to resist this.

Images:

[1] Johannesburg from up high. On one of the buildings hangs a banner that says: “Jozi, you’ve come a long way now let’s go even further.”

[2] Inside the Constitutional Court.

[3] A placard outside the Constitutional Court.

[4] A painting by Samson Mnsi.

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On meaningful community engagement

Perhaps unfairly, the language of “community engagement” evokes within me a wary scepticism. Will it be empty tokenism? Meaningless jargon? Mere platitudes? Yet the Centre for Applied Legal Studies (CALS), in Johannesburg, has recently published a Community Engagement Policy (2014) that preempts and placates these concerns. It is a practical and insightful document that works to broaden “the traditional matrix of legal ethics of lawyer, client, and legal CALS CEPactivity… [to] include indigence, power differentials between client and lawyers, collective rather than individual clients, and non-traditional lawyering tactics” (p 11). It seeks to set some ground rules for respectful, ethical and effective communication between the lawyer and client in a non-private-sector context, in other words. In the Victorian (Australian) context, it harks back to a recurring discussion among community lawyers about the inadequacy of the mainstream legal ethics framework for community law work.

The principles of the policy (and some overlap) are as follows:

1. Mutual Respect and Co-operation

2. Overlapping Consensus of Justice

3. Non-Discrimination and the Pursuit of Equality

4. Security and Dignity of Clients

5. Clarity regarding roles, responsibilities and mandate

6. Clarity regarding intended outcomes and managing expectations

7. Representative, Participatory, and Responsive Leadership Structures, and Individual Agency, within Communities

8. Clear Instructions based on informed decision-making

9. Professionalism

10. Honesty and Integrity

11. Regular and Accessible Communication

12. Confidentiality and Anonymity

13. Transparency and Sharing of Information

14. Enhancing Legal and Specialised Knowledge of our Clients and Partners

15. Inter-Disciplinary Enriched Problem Solving Collaboration

16. Pursuit of Cross-Cultural Competency

17. Avoiding Conflicts of Interest

18. Continuity and Longevity

19. Maintain Objectivity and Independence

20. Self-Reflection

21. Accountability

22. Compliance with Rules of the Profession

There are three further parts of the policy I found particularly interesting:

  • an initial and explicit reference to reflection as a critical aspect of CALS’s work;
  • the statement of benefits for lawyers of effective community engagement; and
  • the discussion of the international and domestic law foundations of the “right to participate”.

Firstly, CALS explicitly incorporates critical reflection as an integral component of its work. See, in the introduction to the policy at page 9:

“CALS approaches its work through rigorous research, client engagement, advocacy, and creative lawyering. Increasingly, CALS has identified a fourth component of our work, namely, critical self-reflection to ensure that we are doing the ‘right work’ and that we are doing the ‘work right’.”

The implication is that this policy has emerged out of this reflective approach to legal practice. The policy goes on to state that while many of its principles are intuited and practised by lawyers, there have been few attempts to articulate them as a whole.

Secondly, the benefits of effective engagement are listed as (pp 12-13):

  • responsiveness: if you engage effectively with your client(s), you are more likely to be responding to their actual needs;
  • legitimacy: similarly, your strategy will likely have greater legitimacy with the clients that you work with, as well as among the public at large;
  • leadership (capacity building): by effective engagement with your clients, there is the possibility of building leadership capacity within the community to drive further social change.

Thirdly, CALS steps through the international and domestic legal foundations for why effective engagement and participation of clients in the legal process is important to human rights legal practice. The discussion of the South African Supreme Court’s comments in the Doctors for Life International v Speaker of the National Assembly et al. (2006) case captures this well in the South African context:

‘Ngcobo J. underscored the historical origins of ‘people’s power’ as an alternative to the undemocratic system of apartheid, and that those processes became the foundation for a constitutional obligation of participatory democracy – not just ‘legislative etiquette or good governmental manners.’16 The Court suggested multiple ways through which to meet this obligation: through: public education that builds capacity for people’s participation; access to information; access to law-making structures and processes; and the facilitation of learning and understanding in order to achieve meaningful involvement. Sachs J. identified the importance of public participation for people who had been the victims of processes of ‘historical silencing,’ noting the importance of their voices being heard, and for those who lack higher education, access to resources and strong political connections.17’

An interesting document, well worth a look.

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The London legal discussions (London, part 2)

My conversations in London started with the wonderful Julie Bishop of the Law Centres Network, who briefed me on the devastating effects of the legal aid cuts, the state of the sector, and linked me with key organisations. I then met with Professor Roger Smith, a freelance writer and expert on legal aid and access to justice issues within the UK but also internationally. Together we attended an All Party Parliamentary Group (APPG) meeting of the House of Commons, where community and law organisation representatives spoke to what I assume was meant to be a room full of parliamentarians (but may have been mostly interested parties) about the effects of the legal aid cuts. This was followed by a launch of the Legal Aid Practitioners Group (LAPG) Legal Aid Manifesto, a detailed text setting out the legal aid reforms proposed by the LAPG.IMG_0055

That evening caused me to again reflect on how community (and here legal aid) lawyers frame the narrative of why their work is important, and of how we can best work to foster conversations with government that allow for what Fran Peavey calls ‘movement’. These are discussions that avoid predictable patterns, and generate new ideas and possibilities. Fran, for example, writes about how strategic questioning is one tool with which such movement can be encouraged. There are of course many others in the toolbox.

Later in the week I met with, among others, representatives of the Hackney Community Law Centre, and Islignton Law Centre. My impression was that while continuing to provide a good service to those in need, both generalist centres were feeling the constricting effects of the legal aid cuts. At Islington, I was also lucky to meet with Baljeet Sandhu, who coordinates its specialist Migrant & Refugee Children’s Legal Unit (MCLU). She spoke passionately, and hopefully, of her work bringing children’s rights language into the practice of immigration law with respect to children in the UK.

IMG_3982In particular, she referred me to a landmark case brought by the MCLU’s predecessor project, ZH (Tanzania) v Secretary State of the Home Department (2011), in which the Court relied on children’s rights principles in allowing a mother of two British citizen children, aged 9 and 12, to remain in the country despite her “appalling immigration history”. The case set a valuable precedent in which two young children were not effectively punished, through the immigration system, for their mother’s acts. Baljeet spoke also of her efforts to unite lawyers working on these issues by establishing a Children’s Rights Network, and of working with funders to fund not only casework, but also the time required for reflection and planning of effective strategic litigation.

Finally, I also spoke to representatives from a series of varied public interest law organisations – the Public Law Project, Liberty, and Just for Kids Law – as well as with Damon Gibbons of the Centre for Responsible Credit, a policy research organisation. For reasons of brevity, a snapshot of the matters we discussed is as follows:

  • One current campaign focus for Liberty (UK) is human rights, and the retention of the Human Rights Act in particular, which provides many key civil rights protections. Liberty’s Legal Director, James Welch, talked me through the 2013 case of Verna Bryant, in which the right to life enshrined in article 2 of the Human Rights Act was relied upon successfully by Liberty to secure a proper inquest in relation to Verna’s daughter’s death. Through the inquest process, a series of institutional failings were found to have contributed to the murder. This at the same time worked to dispel the misconception that the Act had led to the undue release of her daughter’s murderer. The case is a powerful example of how litigation can be effective in reframing a political issue of contention.
  • Public Law Project strategically focuses on promoting access to public law remedies, such as judicial review, for disadvantaged communities. In March 2015, it successfully challenged new regulations limiting the provision of legal aid in judicial review cases. It is also currently running a project to monitor the operation of “exceptional funding” legal aid provisions that provide for applications for legal aid in areas not normally covered in defined categories of “exceptional” cases. See here for more details.
  • Out of Just for Kids Law, a children’s advocacy and rights organisation, has emerged a quite interesting youth-led campaign called Let us Learn, which aims to help young people from migrant backgrounds in the UK access university educations on equal funding conditions.
  • With Damon Gibbons of the Centre for Responsible Credit, I discussed the UK campaign for an interest rate cap, and tales of innovative consumer credit action in other places. In Germany, for example, he told me of how Udo Reifner, Professor at Hamburg University organised for consumer agencies to submit court complaints on the same day regarding an excessive interest rate charge. Through this coordinated approach, they were successful in compelling the court to rule that no lender should be permitted to charge more than twice the market average.  In the 1990s in Japan, there was a huge expansion of high cost lending – with loans available from automated booths in the major cities.  The expansion stemmed from a confusion concerning the interest rate legislation, which was only clarified after a lengthy campaign led by lawyers in the Japanese Federation of Bar Associations and with the support of the Japanese labour movement.  In 2006, the Supreme Court ruled that lenders were retrospectively liable for excessive interest charges and many were subsequently bankrupted by legal claims against them.  For further details of the Japanese experience see the CfRC report ‘Taking on the moneylenders: lessons from Japan’.  For an analysis of personal debt in the UK, see Damon’s book, “Solving Britain’s Personal Debt Crisis”.
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A conversation with Scott Cummings

Cummings book coverOn 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“.

How do we evaluate strategic legal work meaningfully?

IMG_3814In 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.


Images:

(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.

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